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Vol. 16 No. 16 August 8, 2014The Journal of the Allegheny County Bar Association

New reference guide provides youngattorneys with career roadmapby Tracy Carbasho

The Allegheny County Bar Associationhas expanded its repertoire of valuableresources for young attorneys byoffering a guide full of helpful tips.The New Attorney Guide, a 126-page

treasure trove of information, wascompleted by the 2013-14 Bar LeadershipInitiative class. The guide is intendedto bridge the gap between law school anda new attorney’s first year in practice.“More and more attorneys are

starting their own practice out of lawschool or joining smaller firms that donot have a dedicated young associateprogram,” said Julie Colton, a partnerat Voelker & Colton who served ascoordinator for the BLI class. “Thisguide gives young lawyers a one-stopstarting place for information onpracticing in Allegheny County.”The class began meeting in September

2013 to select a project and agreed oncompleting the guide after a thoroughdiscussion of potential endeavors. Thecomprehensive project was completedin June.It covers everything from getting

admitted, getting a job, maintainingyour license, taking your first deposition,and understanding various practiceareas. Each category is complete withsubsections. For instance, the sectionentitled “My First Job” includesinformation on a variety of topics,such as dress and decorum, malpracticeinsurance, social networking, retirementplanning, preparing for a review, askingfor a raise, professional organizations,ethical issues, and work-life balance.The guide is available under the

Resources section and the YoungLawyers Division page on the ACBAwebsite at www.acba.org.

“The guide is geared toward recentlaw school graduates, but it containsuseful information for any attorneyregarding topics such as work-lifebalance, asking for a raise, filingbasics, and ethical issues,” saidColton. “The BLI class was great towork with and I was impressed bytheir drive and dedication to thisproject. We have received greatfeedback and the class membersshould be proud of themselves.”The BLI was established by

the ACBA’s YLD to introducenew lawyers to the many opportunities provided by the association. It was created in response to aneed for providingyoung lawyers with additionalleadership training.Class members,

who conductedresearch and wrotethe guide with helpfrom substantive ACBAsections, included EricAbes, Kristine Carpenter,Stefan Dann, Kate Diersen, CaraGroup, Christopher Hallock,Mallorie McCue, Samantha Quinn,Amy Rees, Daniel Seibel, Beth Slaby,Michael Sundo, Kirsha Trychta andDaniel Vitek.Group, who serves as in-house

counsel at Newton Consulting inClaysville, Pa., was the liaison betweenthe ACBA’s communications staff andthe BLI class. She also wrote some ofthe material in the reference guide.“Young lawyers will benefit greatly

from this guide because it discussesthe practical issues that law school ingeneral does not address,” saidGroup. “The guide was designed tofollow the young attorneys, meaningthat some information (such as baradmission/application) is immediatelyapplicable and necessary, while otherissues (such as asking for a raise and401k information) will become moreimportant down the road.”Group stressed the guide is not

meant to be read from cover to cover,but rather to serve as a reference forissues as they arise during anattorney’s first few years of practice.“For example, as a transactional

attorney, I found the ‘Going to Court’section particularly interestingbecause it is not something that I do aspart of my practice,” she said. “It isreassuring that this resource isavailable as a starting point should Ineed a quick go-to reference for anunusual issue.”Diersen and Carpenter are working

with the ACBA to plan a new attorneyworkshop which is tentatively slatedfor October.“The planning is going well. It has

been great to see the positive reactionwe have received and how willingpeople have been to contribute theirtime and share their expertise,” saidDiersen, an associate attorney withthe municipal and school practicegroup at Goehring, Rutter & Boehm.“I think the workshop and the guidetogether will provide an invaluable

resource for new attorneys. Theworkshop will have a more in-depthlook at each practice area, but theguide will be a resource that can bereviewed and turned to at any point.”Diersen believes she and many

other attorneys would have benefittedfrom having such a guide availablewhen they graduated from law school.“The whole guide would have been

an asset,” she said. “I had so manyquestions coming out of law schooland even with a number of people toturn to for answers, the guide wouldhave been a great place to start myresearch and to help me figure out theright questions to ask.”Carpenter, a corporate in-house

attorney at Wabtec, wrote the sectionof the guide pertaining to networkingand job tips.“The entire guide is important

because it really does walk a newattorney through all of the stages oflife as a lawyer beginning aftergraduation,” said Carpenter. “Wehave information from preparing forthe bar exam all the way to billingpractices and paying student loans.We really wanted the guide to beall-encompassing and to follow thelife cycle of a new attorney. There’s somuch information out there that it’seasy to get bogged down. Our guideaims to simplify the transition frombeing a student to being a practitioner.”Carpenter said the concept for the

guide came to life as a result ofdiscussions among BLI class membersabout how frustrated they felt as newattorneys. She commended Coltonfor her leadership and thankedACBA Executive Director DavidBlaner and President Jim Creenanfor their support.

Classmates realized they hadcommon questions about practicinglaw, even though they came from lawfirms of varying sizes, different practiceareas or non-traditional legal careers.“We were also cognizant that many

of our peers were still struggling tofind a job. We knew of many instanceswhere our peers began to start theirown firms and we wanted solopractitioners to have a guide to putthem on the right track,” she said.“There’s no substitute for mentors,sponsors and on-the-job training, butwe wanted our guide to supplementthese other resources.”Carpenter believes the most

important topics in the guide are thesubstantive areas of law. New attorneysmust work hard to enhance theirsubstantive legal knowledge andthere’s a vast amount of informationavailable. Hopefully, the guide willserve as a first point of reference andalleviate the anxiety of not knowingwhere to find information.There were many more topics the

class wanted to include in the guide.However, Carpenter said the scope ofthe guide was limited to being aresource from which all attorneyscould benefit.“We wanted a guide that would be

all-inclusive and that would appeal tosolo practitioners, lawyers working inmid-size and large firms, and lawyersin non-traditional legal careers. Wewanted it to cover a broad base ofsubstantive areas,” said Carpenter.“We also knew that being a lawyer ismore than just what happens at youractual job. We wanted to addresssocial issues like work-life balance,saving for retirement, paying offstudent loans and networking.” n

Page 2 / August 8, 2014

THE FULL TEXT AND/OR HEADNOTES FOR THE CASES BELOW APPEAR INTHE ONLINE, SEARCHABLE PLJ OPINIONS LOCATED AT WWW.ACBA.ORG.

l a w y e r sJ o u r n a l

Gender Bias Duty OfficersIf you have observed or experienced any

form of gender bias, you may contact one of

the following members of the Gender Bias

Subcommittee of the Women in the Law

Division. The duty officers will keep your

report confidential and will discuss with you

actions available through the subcommittee.

Kimberly Brown......................412-394-7995

Rhoda Neft ..............................412-261-2753

Jill M. Weimer ........................412-201-7632

Ethics HotlineThe ACBA Professional Ethics Committee

“Ethics Hotline” makes available Committee

Members to answer ethical questions by

telephone on a daily basis.

August

Bob Bernstein..........................412-456-8101

William J. McKim ..................412-433-2914

September

John F. Becker ........................412-921-1605

James G. Gordon ....................412-232-0333

Cathy Martin ..........................412-586-6118

Michael D. McDowell, Esq.Arbitrator and Mediator

labor • employment • securitiescommercial • energy

www.ArbitrationsAndMediations.com

• Over Thirty Years of Experience in Alternative Dispute Resolution and Complex Litigation

• Member, National Academy of Arbitrators

PO Box 15054 • Pittsburgh, Pennsylvania 15237

MMcDowell@ArbitrationsAndMediations.com

412-260-5151

The Lawyers Journal is published

fortnightly by the

Allegheny County Bar Association

400 Koppers Building

436 Seventh Avenue

Pittsburgh, PA 15219-1818

Editor: 412-402-6623/jpulice@acba.org

Advertising: 412-402-6686/plewis@acba.org

Address Changes: 412-402-6612

Fax: 412-261-6438

www.acba.org

Circulation 6,317

© Allegheny County Bar Association 2014

Editor-in-Chief: Hal D. Coffey, Esq.

Editor: Jennifer A. Pulice, Esq.

Supervising Editor: David A. Blaner

Advertising Coordinator: Peggy Lewis

Graphic Artist: Jessica Wysocki Valesky

Proofreader/Opinions: Sharon Antill

Editor/Graphic Artist: Mark Higgs

n The LJ editorial policy can be found

online at www.acba.org.

n Information published in the LJ may

not be republished, resold, recorded, or

used in any manner, in whole or in part,

without the permission of the publishers.

C O N N E C T W I T H U S S O C I A L L Yfacebook.com/alleghenycountybar @AlleghenyCoBar

As an added member bene�t, the ACBA has partnered with JobTarget, the leading provider of world-class career centers, to provide our members with a state-of-the-art career center.

�e career center, which can be found on our website under “Career Services,” provides a comprehensive job search and posting resource. �e career center includes: a highly targeted focus on employment opportunities for attorneys and support sta� anonymous resume posting and job application—letting you stay connected to the employment market while

maintaining full control over your con�dential information an advanced Job Alert system that noti�es you of new opportunities matching your own pre-selected criteria access to industry-speci�c jobs—not often seen on mass job boards

Allegheny County Bar AssociationRaising the Bar on Legal and Community Service

www.acba.org

CAREER SERVICES CENTERACBA

City of Pittsburgh v.

Fraternal Order of Police

Fort Pitt Lodge No. 1

(on-duty and off-duty pay for events), Colville, J. ...............Page 247

Miscellaneous—Employment—Arbitration

City of Pittsburgh v.

Fraternal Order of Police

Fort Pitt Lodge No. 1, Colville, J. ..........................................Page 250

Employment—Civil Service Act—

Residency—Arbitration

Housing Authority of the City of Pittsburgh v.

India Jenkins, O’Brien, A.J. ...................................................Page 253

Landlord Tenant—Lease—Real Estate—General

Commonwealth of Pennsylvania v.

Shawn Collington, Rangos, J. .................................................Page 254

Criminal Appeal—Sentencing (Discretionary Aspects)—

Probation Violation—Technical Violation Only

Commonwealth of Pennsylvania v.

Michael Ellis, Rangos, J. ........................................................Page 255

Criminal Appeal—Sufficiency—Sentencing (Discretionary Aspects)—

Suppression—No Consent to a Blood Draw

Commonwealth of Pennsylvania v.

Leland Lamar Davis, Borkowski, J. ......................................Page 257

Criminal Appeal—Suppression—Identification—

Sentencing (Discretionary Aspects)—Sufficiency—Homicide—

Weight of the Evidence—Search Warrant—DNA

August 8, 2014 / Page 3

412-281-2200www.gislaw.com 310 Grant St., Ste. 700, Grant Bldg., Pgh., PA 15219

Gismondi& associates

Quality…Experience…Results… It’s what your clients deserve.

Auto Accidents Personal Injury

purpose, individual health insurancepremiums include individual coveragepurchased either inside or outside ofthe Health Insurance Marketplace.The FAQ follows up on earlier

guidance describing these types ofarrangements (Notice 2013-54).Employer payment plans include

arrangements that reimburse some orall of an employee’s individual healthinsurance premiums on a tax-freebasis (including reimbursement throughan HRA or a direct payment by theemployer to an insurance company).Under the Affordable Care Act, an

employer payment plan is considereda group health plan subject to themarket reforms, including theprohibition of annual dollar limits foressential health benefits and therequirement to provide certainpreventative care without cost sharing.These arrangements cannot beintegrated with individual policies tosatisfy the ACA’s requirements.Consequently, employer payment

plans will not satisfy the market reformsunder the ACA and employers offeringsuch a program may be subject to a$100/day excise tax per applicableemployee (which is $36,500 per year,per employee).An employer payment plan generally

does not include an arrangement underwhich an employee may have an after-taxamount applied toward health coverageor may take that amount in cashcompensation. However, some haveargued that there is a way to reimbursean employee’s individual health planpremiums on a pre-tax basis through ahealth reimbursement arrangement.

According to a New York Timesarticle,“The issue, at least on the surface, islanguage in the health law meant tomake sure there are no dollar limitson the coverage for a person’s basicmedical needs, which the law callsessential health benefits. The IRSasserts that a plan reimbursingemployees for insurance they buy ontheir own cannot comply with thisprohibition on annual limits becausethe company’s contribution is bydefinition limited – even though thehealth insurance the employee ends upbuying would have no annual limits.”The argument is that since the ACA

does not specifically list insurancepremiums as an “essential healthbenefit,” reimbursing for them doesnot violate the law. Many experts andattorneys disagree with this stancethough, and admit the approach isvery risky.“In a technical guidance issued last

year and reiterated in May, the InternalRevenue Service issued a clear warningabout such health reimbursementarrangements, according to eighthealth and tax lawyers, as well a halfdozen lobbyists and analysts whohave followed the Affordable CareAct’s adoption,” said Seth Perretta, ahealth and tax lawyer with the GroomLaw Group in Washington. “Theguidance makes it very difficult, if notimpossible, for an employer to pay foran employee’s individual insurancewith tax-free dollars.”Another issue of offering employees

tax-free reimbursements for individualhealth insurance plans is the potentialthat it disqualifies employees from

receiving premium tax credits in stateor federal exchanges. The ACA statesthat employees who are offered healthinsurance coverage by their employersare not eligible to receive tax creditsor subsidies in state or federalexchanges, even if their income isbelow the acceptable threshold.Since a health reimbursement

arrangement (HRA) is considered agroup health plan, the opinion of manyattorneys is that employees who receivecontributions into an HRA would bedisqualified from receiving subsidies.Employees who receive a subsidy and donot disclose the reimbursement fromtheir employer (into the HRA) could berequired to repay the subsidy at tax time.The Treasury Department has said

the government plans to offer additionalguidance on the topic, but finaldetermination may ultimately comedown to a legal challenge by a groupwho gets penalized. For now, theoverwhelming majority of industryexperts and attorneys agree thatreimbursing an employee on a tax-free basis for their individualinsurance premiums is not permittedby the law. n

For the FAQ, visit:www.irs.gov/uac/Newsroom/Employer-Health-Care-Arrangements.For Notice 2013-54, visit:

www.irs.gov/pub/irs-drop/n-13-54.pdf.

Employer payment plans do not satisfy reforms under the ACA

by Sandy Niespodzianski

One of the most frequent questionswe get from employers is whetherthey are able to help pay for anemployee’s individual health insurancepolicy on a pre-tax basis. This articlewill shed light on the topic and opinionswithin the industry.The IRS recently issued a frequently

asked questions (FAQ) document,addressing the potential consequencesof an arrangement where an employerreimburses employees for the purchaseof individual health insurance premiumson a tax-favored basis (referred to asan employer payment plan). For this

Sandy Niespodzianski

visit us atw w w . a c b a . o r g

Page 4 / August 8, 2014

Intramural sports foster collegiality and fitnessby Tracy Carbasho

When ACBA members need a breakfrom exercising their legal prowess,they can flaunt their athletic ability byparticipating in the association’sintramural sports.The association offers a sport to

suit everybody’s interest and skilllevel, ranging from basketball andsoftball to ice hockey and soccer.Those who participate appreciate theopportunity to interact with otherlegal professionals in a fun, yetcompetitive, environment.“It gets us to have fun together

outside of the daily grind of practicinglaw. It’s also a good source of exerciseand networking,” said Charles Grudowski,who spearheaded the creation of thesoccer league. “Everyone is meeting newpeople and we have a happy hour tocelebrate the winner after each season.”Soccer is the newest intramural

sport offered by the ACBA. It wasstarted in 2010 after Grudowskipresented the idea to the ACBA’sBoard of Governors. He has served ascommissioner since the league’sinception, but growing interest in thesport prompted him to bring KevinTucker on board as co-commissioner.“Soccer is a great game to offer our

members, giving us sports options allyear now,” said Grudowski of GrudowskiLaw. “Many people still don’t knowabout the league, so each season wegain new players. Last fall, we hadabout 85 players and I expect anincrease this fall.”Registration is now open for the fall

soccer league and the deadline toregister is Aug. 29. Space is limited tosix teams and the registration fee is$50 per person. Interested individualswho want to register will be assignedto a team.To register, visit www.acbasoccer.com.

More information is also available bycontacting cjg@grudowskilaw.com.Rosters will be limited to a maximum

of 15 players, including at least threewomen. At least one woman per teammust be on the field at all times.The regular season consists of eight

games beginning in September withthe playoffs in November. A springseason, which was just implementedthis year, runs from April throughJune. Games are played on Sundaysfrom 9 a.m. to noon at the WinchesterThurston Athletic Field in Shadyside.Instead of presenting a new trophy

to the winner each season, Grudowskiuses a cup trophy that gets passed onto the winning team. The names ofplayers on the championship team areengraved at the base of the cupeach season.

The league is comprised ofplayers with varying degrees ofexperience ranging from beginner toelite college players.Another newer intramural sport

started by the ACBA is ice hockey. TheACBA’s ice hockey team plays in alocal league. The team was started byKirk Burkley, a partner at Bernstein-Burkley. He now serves as co-captainwith Paul Cordaro, a member atCampbell & Levine.“The level of experience does vary

on the team, but most players areexperienced,” said Burkley. “We do playat an advanced level, so players shouldhave some experience playing icehockey. The team is not for beginners.”Ice hockey enthusiasts should

appreciate the fact that games aretypically played throughout the year,including fall, winter, spring and evensummer once in a while. The team hasbeen playing at Southpointe, but iscurrently seeking a new league for thefall season.Burkley said the team works best

with between 10 and 15 players. Aregular season usually has 10 gamesand then a playoff that includes atleast one game.Although the team does not travel

for play, members have consideredplaying in tournaments that wouldrequire traveling and may do so inthe future.New players are always encouraged

to participate.“We are becoming older players

and need to recruit some youngerplayers,” said Burkley. “Also, as players’family obligations increase, we losepeople. We would love to have somewomen come out and play on the team.“This is a terrific way to build

collegiality. We have lots of players indifferent practice areas who might notknow each other without the hockeyteam,” he added. “We have lawyers inprivate practice, government workand in-house.”Depending on the number of players

on the team, it usually costs about $50to play for the season.Information about the ice hockey

team is available by emailing Burkleyat kburkley@bernsteinlaw.com orCordaro at pcordaro@camlev.com.The all-American basketball and

softball leagues have been a mainstayof the ACBA for decades. The leaguesare a great way to help members stayfit and remain connected to otherlegal professionals.“I have met many members of the

association through the basketballleague and I believe it is useful inbuilding collegiality among membersof the bar, especially younger members,”

said Scott Millhouse, a principal atMeyer Darragh Buckler Bebenek &Eck. “Despite the competitiveness thatyou would expect, good sportsmanshipis the norm and the players treat eachother extremely well.”The ACBA Basketball League has

been active for at least 30 yearsand Millhouse has served as thecommissioner for more than twodecades. The league is open to anymember or associate member of theACBA. Employees of member firmsare also invited to participate.The league has two divisions based

on experience and skill level. The ADivision consists of individuals whoplayed high school or college basketballor who are very avid playgroundplayers. The B Division is suitable forless avid players.Millhouse said the season starts in

the middle of January and runsthrough the middle of April. Gamesare played on Sunday and Mondaynights at St. Edmund’s Academy inSquirrel Hill. Each team is scheduledto play 10 regular season games and atleast one playoff game.“Membership in the league has

varied over the years. Most recently,we have had 18 to 20 teams with 10players,” said Millhouse. “The league,of course, is open to women and fromtime to time we have had some femaleplayers, but the overwhelming majorityof the players are male.”Millhouse noted that membership

in the league is by team, but interestedindividuals will be placed on a team.The cost per team is $650, whichincludes the regular season andplayoff games, as well as t-shirts.Information about the league is

available by contacting Millhouse atsmillhouse@mdbbe.com or 412-553-7063.The ACBA Softball League has also

been around for many years and has

attracted plenty of players. The leagueactually dates back to the 1970s whenit was created as a social outlet to helpattorneys network and unwind.“I think the main reason people join

is because they have an interest inplaying sports and blowing off steam,”said Sam Grego, who has served asleague commissioner for more thanthree years. “We believe the practiceof law is better if we all get along.”Grego, a principal at Dickie

McCamey & Chilcote, has played in theleague since 1982 on a team known asthe Iron City Bar Men. A total of 19teams, each with an average of 15 players,took part in the league in 2013.The regular season begins in May

and runs through August with theplayoffs taking place in Septemberand the championship games runninginto October. Each team typicallyplays between 16 and 18 games perseason. All games are played atMarino Field.Grego said teams are always looking

for new players and individuals of anyskill level are welcome. Teams consistprimarily of Allegheny Countyattorneys, law students and judicialclerks. All full-time employees of alaw firm or law office can play.Ringers – those who are not in the

legal profession – are allowed to playin the softball league. However, therecan only be three of them on the fieldat one time and they must play in atleast 50 percent of the regular seasongames if they want to participate inthe playoffs.Anyone who would like to start a

team or play on an existing teamshould call Grego at 412-392-5507 oremail him at sgrego@dmclaw.com.Information about the league is alsoavailable by visiting www.steeltown-softball.com and clicking on the iconfor the ACBA Softball League. n

August 8, 2014 / Page 5

Having the right team makes all the difference

Labor & Employment AttorneysEmployment Litigation AttorneysPittsburgh, Pennsylvania(412) 338-1100www.rothmangordon.com

Back Row: Colleen Ramage Johnston, Stephen H. Jordan, James W. Carroll, Jr., and Alan C. Blanco Front Row: Louis B. Kushner, Nikki Velisaris Lykos, and Lori R. Miller

Data on civil cases now more accessible onlineby Steve Schell

Pennsylvania’s judiciary recentlyunveiled the second in a series ofinteractive, Web-based data dashboardsthat will allow users to quickly analyzeand interpret data related to courtcases and court operations.The latest dashboards provide a

detailed look at civil cases, includingindividual displays for mortgageforeclosure filings, medical malpracticecases, and protection-from-abuse cases.“Data dashboards make information

more accessible and are valuableresources to help judges and court staffmake more informed decisions aboutcourt operations,” said PennsylvaniaSupreme Court Chief Justice RonaldD. Castille. “It is also an easy way forthe public and those who study courttrends to see the important workbeing done in the judiciary.”The Statewide Civil Cases dashboard

shows the annual filings and dispositionsby case type and county. For example,in 2012 nearly 158,000 civil caseswere filed throughout Pennsylvaniawith 21 percent of the caseloadrepresenting residential mortgageforeclosures. A graph of dispositiontypes, or the way the courts processcases, illustrates that less than 2percent of all civil cases are resolvedby a trial.Mortgage foreclosure cases are

displayed on a separate dashboardtab, showing the number of residentialmortgage foreclosure filings for eachcounty. The dashboard also identifieswhich counties offer mortgageforeclosure diversion programs.

The Supreme Court has encouragedthe creation of home foreclosuremediation programs, where appropriate,to confront the skyrocketing numberof home foreclosure filings during theeconomic downturn. A mediationprogram typically stays the foreclosureproceedings to give the homeownertime to work with a housing counselorto devise a solution to submit to thelender. Currently, 21 counties havemortgage foreclosure mediationprograms. Philadelphia’s program,initiated in 2008, was the first onein Pennsylvania and is nationallyrecognized as a model.Another tab on the Statewide Civil

Cases dashboard shows medicalmalpractice cases filed between 2000and 2013, jury and nonjury verdictsfor each county, whether the verdictwas for the plaintiff or defendant, andthe amount of any plaintiff award.Data shows the number of medicalmalpractice cases filed in Pennsylvaniahas steadily declined as a direct resultof procedural changes initiated by thestate Supreme Court in 2004.The Protection-from-Abuse dashboard

shows the annual PFA filings anddispositions, including requests fortemporary orders. Nearly 42,000 PFApetitions were filed throughoutPennsylvania in 2012. The Class ofCounty tab allows the user to viewdata in groups of counties of similarpopulation size, and the CountyComparisons tab allows the user tocustomize county groupings.The Administrative Office of

Pennsylvania Courts (AOPC) hasunveiled the first in what will be a

series of dashboards, publishingcharts that display collection ratesand the distribution of court-orderedfees, fines, costs and restitution. Overthe coming months, the AOPC willrelease additional dashboards highlightingcriminal and civil caseloads.

The dashboards will be updated onan annual basis. They can be found onthe judiciary’s website atwww.pacourts.us. Go to the Researchand Statistics page (under News &Statistics) and click on “InteractiveData Dashboards.” n

Page 6 / August 8, 2014

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Profanity-laced outburst may notpreclude protection under the NLRAby Maria Greco Danaher

Here are the basic facts of a casethat has raised questions regarding theinherent conflict between “protectedactivity” under the National LaborRelations Act (NLRA) and insubordinatebehavior by employees:• Nick Aguirre became employed

by Plaza Auto Center in Yuma, Arizona,in August 2008 as a car salesman andheld that position for two months;During his brief tenure, he complained

to both fellow employees and companymanagers about company policies,breaks, and compensation;• On Oct. 28, 2008, Aguirre was

called to a meeting with Tony Plaza,the owner of Plaza Auto Center, andtwo sales managers;• Plaza began the meeting by

telling Aguirre that he was “talking alot of negative stuff” and asking toomany questions;• Plaza told Aguirre that he should

not be complaining about pay and thatif Aguirre didn’t trust him, he neednot work there;• At that point, Aguirre lost his

temper and in a raised voice calledPlaza numerous profane names andtold Plaza that he was stupid and thatno one liked him;• During his tirade, Aguirre stood

up in the small office, pushed his chairaside, and told Plaza that if he firedhim, he would “regret it.”Plaza did fire Aguirre. In an

evidentiary hearing on the chargefiled by Aguirre, an administrativelaw judge found that Plaza AutoCenter had violated the NLRA byinviting Aguirre to quit in response tohis protests regarding workingconditions. However, the judge alsofound that Aguirre lost the protectionof the NLRA by his “belligerent”behavior in speaking to Plaza in“obscene and personally denigratingterms accompanied by menacingconduct and language.” (Plaza AutoCenter, Inc. and Nick Aguirre, Case28-CA-022256, May 28, 2014)The acting general counsel

appealed the decision to the fullNational Labor Relations Board(NLRB), which determined thatAguirre’s conduct was not severeenough to cause him to lose the NLRA’sstatutory protections and, therefore,that his firing violated the act.At that point, Plaza Auto Center

appealed to the 9th U.S. Circuit Court

of Appeals, which found that Aguirre’sbehavior was insubordinate and“counted against” his retaining theact’s protection. It found that theNLRB’s rejection of the administrativelaw judge’s findings that Aguirre’sbehavior was “belligerent,” “menacing,”and “at least physically aggressive,”created an internal inconsistency inthe board’s decision. It thenremanded the case back to the NLRBfor further review.Upon reviewing the case again,

the NLRB determined that whileAguirre’s behavior was obscene andpersonally denigrating, other factors“compellingly favor Aguirre’s retainingthe protection of the NLRA.” First, theboard found that Aguirre’s conductwas not menacing, physically belligerentor aggressive, and that “it seemsclear” that Aguirre’s statement thatPlaza would “regret it” if he fired himwas a simple threat of legal action,and not a threat of physical violence.As for the administrative law

judge’s finding that Aguirre’s action inpushing his chair aside was menacing,the board found that in Plaza’s smalloffice, “it likely would have beendifficult for Aguirre to stand upwithout pushing his chair aside.”Also, because Aguirre had no priorhistory of violent or threateningbehavior (in the two months duringwhich he worked at Plaza AutoCenter), and because there was “noevidence that Aguirre tried to hitPlaza, or even made a fist,” the boardrejected the administrative lawjudge’s finding that Aguirre’s behaviorwas menacing, physically aggressive,or belligerent.The board’s decision that Aguirre’s

behavior did not cause him to forfeitthe protections of the NLRA are based– according to the board – on a balancingof an employee’s right to engage inconcerted activity and an employer’sneed to maintain order and respect inits establishment.Employers should take notice of

this case when making decisions todiscipline or fire an employee who hascomplained about the terms andconditions of employment, even if thatemployee uses obscenities and actsin what could be viewed as a threatening manner.However, there is one factor which

is mentioned numerous times in theboard’s opinion, and which couldprovide some additional direction to

employers: Aguirre’s outburst occurredimmediately after Plaza’s inference thatAguirre could quit if he didn’t like thecompany’s policies. Labeling that commenta “provocation” of Aguirre’s reaction,the board determined that Aguirre’sfiring was in violation of the NLRA.The remedy for Plaza Auto Center’s

violation of the act was immediatereinstatement of Aguirre with backpay and benefits paid to him, alongwith reimbursement for any “adversetax consequences” of that repayment.Aguirre’s personnel file was to becleared of any reference to his firing,and the company was required to posta notice of the board’s full decision,along with statements related toemployees’ rights to form a union andengage in activities protected bythe NLRA.

Employers should take note.Plaza’s implication that he wasrefusing to change the companypolicies related to wages and breaksand that Aguirre may as well leavesince nothing was going to change,clearly worked against Plaza in thiscircumstance. Clearly, the boardviewed Plaza’s statement as arefusal to hear Aguirre’s concerns orgive them any attention, and viewedAguirre’s firing as a reaction toAguirre’s protected activity in makingthe complaints.This case provides one piece of

usable advice to managers: a don’t-let-the-door-hit-you-on-the-way-out state-ment in response to an employee’s concerns related to working conditionscan create unintended risk and liabilityunder the NLRA. n

Mediation and Arbitration/ Civil Litigation

HARRY M. PARASAttorney at Law

428 Boulevard of the AlliesSuite 300Pittsburgh, PA 15219

Phone: 412-391-8100

Fax: 412-391-9972

Email: hmp@harryparas.com

Website: www.harryparas.com

August 8, 2014 / Page 7

Solving the top 10 challenges of law firm collectionsby Frank Strong

In a recent Legal Talk Networkpodcast focused on law firm invoicingand collections, moderator ChristopherT. Anderson remarked that more than20 percent of legal bills are past due.What is contributing to this ongoinglaw firm collections challenge?Data presented at a LexisNexis®

Juris® User Group meeting may provideuseful insight into the causes of pastdue legal bills. It may also provideideas for forming a strategy to reversethis trend.The Juris product is a robust legal-

specific billing, accounting and financialmanagement software. The user groupoften consists of industry veteranslike Gail Thomas, who previouslyoffered these tips and techniques forlaw firm billing software on his blog.Please note that the data was

derived from what amounts to a focusgroup and customer feedback, ratherthan survey data. Even so, a handfulof industry experts, weighing in basedon their experience, are insightful.According to the group, the top 10

factors contributing to law firm collectionproblems include the following:

Slow to act. Too slow to take actionon past due accounts and denying theproblem even exists in some cases.

Fear of client attrition. Concern orfear of losing a client as a result ofasking them to pay their bill. As pricingstrategist Toby Brown pointed out atan ABA TECHSHOW presentation,many attorneys simply are notcomfortable having conversationsabout fees.

Communications channels. Slowspeed of communication (think U.S.mail vs. email or electronic billing).

Overconfidence. Over-reliance onprocess, procedures and software –no system is bulletproof.

Flip side of negotiation. Too quickto negotiate or accept alternativepayments. Anderson has commentedthat providing discounts to past dueclients is rewarding the behavior.

Firing clients. Not knowing when to“cut the cord” to a chronically pastdue client.

Data and analytics. A lack ofreporting analysis and the inability toidentify trends and indications of pastdue clients.

Documentation. Failure to track thekey steps and activities that comprise a collection process.

Responsibility. Accountability mustextend beyond just the accounting staff.

Adhering to policy. Implementing apolicy or procedure and sticking to it.Other contributing factors this group

cited, but did not put on the list, includedthe lack of assigning the task of collectionsto someone and the lack of clearpolicies. Procedures are often set byindividual partners or billing attorneys,which may lead to variation, as opposedto establishing a firm-level policy.

How to Develop a Law FirmCollections Strategy

Once a firm becomes cognizant ofits collection challenges, the next stepis to determine what to do about it. Asix-step process was recommended byone of the conference presenters.

1. Define the scope of the problem.This means collecting and analyzingdata about clients and billing activitiesso a firm is aware of what they aredealing with to “know what you have.”

2. Conduct an internal review. Evenif a partner believes he or she understandswhat the issues are, it’s worthwhile tointerview law firm staff to see if yourunderstanding matches that of therest of the law firm’s employees. Inthis step, gaps are usually identifiedbetween what should be happeningand what is actually happening.

3. Perform root cause analysis.This step involves digging into thedetails of past due accounts andcommunicating with clients to understandwhy they have not paid for legal services rendered. Is the issue financialhardship? A disputed charge? Lack ofdetail on time entries?

4. Identify law firm revenue leaks.Here, the process is to understand thelaw firm’s role in the billing practice – arethere write downs, write offs or billingadjustments? What do these numberslook like in aggregate by client, staffand the responsible billing attorneys?

5. Assess resource requirements.What resources will correcting theproblem require? More staff? Differenttalent? Technology for data tracking,analysis and reporting?

6. Communicate the findings. Aftera thorough review, document bothquantities and qualitative findingswith graphics and supporting tablesthat identify aggregate collectionproblems; future at-risk clientaccounts; other revenue opportunities;a proposed process workflow and howthe collections process effectivenesswill be measured. n

In MemoriamMartin Lazzaro

ACBA member Martin Lazzaropassed away on June 25 at the age of54. He was the beloved husband ofLois Fazio Lazzaro; son of Shirley andthe late Roland Lazzaro; proud fatherof Martin Anthony Lazzaro andNicholas Lazzaro, both of McCandlessTownship.; brother of Roland (Debra)Lazzaro, Kristin (Knut) Wiedemann,Lisa (Bryan) Roessler, and Daria(Robert) Brown. He is also survivedby seven nieces and seven nephews.Marty helped finance his education

through jobs as a grill boy atMcDonald’s, a car salesman, bus boy,surveyor, coal miner, intern at theAllegheny County District Attorney’soffice and engineer. He worked atchemical plants, landfills, surface andunderground coal mines, and on drillrigs. He graduated with honors fromthe University of Pittsburgh School ofEngineering and received his lawdegree from Duquesne University.He handled cases involving traffic

fatalities and traumatic brain injuriesof children and adults, personal injuryclaims resulting in the insertion oforthopedic hardware, as well aspermanent total and partial disabilityclaims. Marty’s clients included

individuals from an array of professions,such as presidents of major corporations,doctors, nurses, salesmen, laborers,contractors, truck drivers, and busdrivers to housewives, grandmothersand children. His hobbies included collecting and

driving exotic automobiles andthrowing parties. He was a member ofthe Pennsylvania Trial LawyersAssociation and the Million DollarAdvocates Forum.

Vincent Scully Jr.

ACBA member Vincent Scully Jr.passed away on July 8. He was bornon Jan. 27, 1928, in the Garfieldneighborhood of Pittsburgh to VincentSr. and Mary Scully. At the age of 16,Vince was awarded a four-year,full-tuition scholarship to FordhamUniversity in New York as a result ofhis academic achievements at CentralCatholic High School.At Fordham University, he made

the varsity baseball team, playing firstbase, along with Vin Scully, thelegendary Los Angeles Dodgers’announcer, who played center field.He later transferred to the Universityof Notre Dame, where he earned botha bachelor of science in commerce

(accounting) and his juris doctorate.He was admitted to the Pennsylvania

Bar at the age of 22. In 1954, Vinceearned a master’s degree in sociology(Alpha Kappa Delta – NationalHonorary Sociological Fraternity). In1957, he earned another master’sdegree in literature and creative writing,both from the University of Pittsburgh.For more than 60 years, he conducted

a successful tax practice with severallaw firms, eventually founding Scully& Scully LLP in 1985 with his son,Erik V. Scully, attorney and certifiedpublic accountant.Vince gained a national reputation

as a taxpayer advocate with a TaxCourt victory in a landmark decisionthat upheld the cost of big-game huntingexpeditions as ordinary, necessaryand reasonable advertising expensesof a closely held corporation. Thisdecision was the basis for IRC CodeSection 162.Throughout his career, he served

on numerous corporate boards, andacquired and sold many successfulbusinesses, including, but not limitedto, Woodings-Verona Tool Co.,Pittsburgh Piping and EquipmentCo., Flowline Corp., Insurance Officeof Pittsburgh, Pittsburgh Casing Co.,Castle Stone Land Co., Eastern

Institute of Commercial Broadcasting,Tri-State Casing Co., Dream FrameCo., the Headliners of Pittsburgh, andFour Rivers Software Co.Vince was an avid bowler. He tried

to bowl at least six games per week;three in a duckpin league and three in10 pins where his personal 10 pin highwas 746. On April 11, 1988, he bowledthe first American Bowling Congresssanctioned 300 game at the PittsburghAthletic Association.He was a true Renaissance man

and lover of fine arts and literature.Until recently, he was working on acomplete translation into modernEnglish of Geoffrey Chaucer’s “TheCanterbury Tales,” intended to be astrue as possible to the original in bothits poetic and prose portions. Vincewas a life-time member of the Sons of the American Revolution(NSSAR #169619) (PA # 11781, Pittsburgh Chapter).He is survived by his wife,

Kathleen; four children, Joni, Erik(Margaret), Erin, and Scott; and ninegrandchildren, Dylan, Glori, Abrahm,Noah, Naomi, Jeshua, Erik J., Ryan,and Meghan. He was preceded in death by his children, Kreg (Anna Lee) and Kristen; and hisbrother, William. n

Did you know the ACBA produces the Pittsburgh Legal Journal each day?The PLJ contains court schedules, court notices, legal ads, and more. Call 412-261-6255 to subscribe today.

www.pittsburghlegaljournal.org

Pre-order your 2014Allegheny County Bar Association

Legal Directory today!Vist www.acba.org/acba/Publications/Legal-Directory.asp

or call 412-402-6612 for details.

If you have an idea for an article,please contact Jennifer Pulice atjpulice@acba.org or 412-402-6623.

ARTICLESWANTED

Page 8 / August 8, 2014

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ESTATE PLANNINGIF YOUR CLIENTS ARE CONSIDERING CHARITABLEGIVING as part of their estate planning The PittsburghPresbytery Foundation can provide a means to supportcharitable work helping those in need throughout SWPennsylvania. For more information contact the Foundationat www.pghpresbytery.org/pghpresbyterianfdn.htm orRev. Dr. Douglas Portz at 412-323-1400 Ext 318.

INSURANCE PROPERTYCLAIM EXPERT

INSURANCE PROPERTY CLAIM EXPERT – First andthird party claims. Licensed insurance adjuster and public adjuster. Rob Massof (412) 563-6670, rmassof@aol.com.

People on the MoveKeith R. Mason

has joined the lawfirm of PietragalloGordon AlfanoBosick & Raspanti,LLP as a memberof the Risk Management andWorkers’ Compen-sation PracticeGroup. His experi-ence includes representation ofemployers involvingcomplex workers’compensation issuesand management,and handling ofcivil litigationmatters.

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Fox RothschildLLP has expandedits litigation practicewith the additionof lawyer RichardL. Holzworth.

News and Notes

Del Sole Cavanaugh Stroyd LLC, ispleased to announce that the SupremeCourt of Pennsylvania has designated,Joseph A. Del Sole, former PresidentJudge of the Superior Court, Vice-Chairof the Appellate Court ProceduralRules Committee and has reappointedWilliam S. Stickman, IV to the CivilProcedural Rules Committee.

Bar Briefs

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Joseph A.Del Sole

William S.Stickman, IV

Richard L.Holzworth

Keith R.Mason

visit us atw w w . a c b a . o r g

New reference guide provides young attorneys with career roadmapEmployer payment plans do not satisfy reforms under the ACAIntramural sports foster collegiality and fitnessData on civil cases now more accessible onlineProfanity-laced outburst may not preclude protection under the NLRASolving the top 10 challenges of law firm collectionsIn MemoriamBar Briefs