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Vol. 16 No. 10 May 16, 2014The Journal of the Allegheny County Bar Association

Annual ACBA Golf Tournamentpromises something for everyoneby Erin Rhodes

The 22nd

Annual ACBA Golf Tournament benefiting the AlleghenyCounty Bar Foundation and NeighborhoodLegal Services Association will beheld on Friday, July 18, at the historicLongue Vue Club in Verona.

This year’s event offers excitingactivities for golfers and non-golfers alike.

“We will not only have a golf tournament at an historic Pennsylvaniagolf course, but will also have a greatbocce tournament – a runaway hit lastyear – and a sporting clays match, aswell,” said Tournament Co-Chair JimKyper. “Remember, we can’t offersporting clays every year, but we canthis year. Don’t miss it.”

Longue Vue is one of the few facilitiesin the area to offer three types ofshooting: skeet, trap and five-stand.The club will provide guns and ammunition, and trained staff members will be on hand to managethe competition. The club also boasts anewly renovated sporting clays lodgecomplete with large-screen televisionand lounge seating.

Known for its regal architecture andview of the Allegheny River Valley,Longue Vue is one of Pittsburgh’s oldest

clubs and was awarded historic landmark status in 1985.

Tournament Co-Chair Jeff Leechbelieves the venue is an appropriate one.

“Longue Vue Club provides a picturesque clubhouse and some ofthe most challenging par threes inWestern Pennsylvania,” he said.

Lunch and dinner are included in thegolf registration. Dinner is included inthe bocce and sporting clays registration.Snacks and beverages will be availableduring all three activities. Individualsunable to attend the afternoon activitiesare welcome to register for the dinnerreception only. Reception attendeeswill have the opportunity to bid on avariety of silent auction items, manyof which will be viewable on the pre-eventonline auction in June.

The Golf Committee is again sellingraffle tickets for a chance to win a getaway for two to Pebble Beach or a$4,000 cash prize. The committee hasbeen offering the Pebble Beach tripsince 2011. Both previous raffle winnershave opted to take the trip and havereported positive experiences. Theticket cost is $20 each or three for $50.

For more information on this year’stournament, visit the ACBF website atwww.acbf.org, or contact Erin Rhodes at412-402-6641 or erhodes@acba.org. n

A schedule of activities follows:10:30 a.m., Golfer Registration11 a.m. to noon, Lunch12:15 p.m., Shotgun Start

Bocce Tournament(Sponsored by USI Affinity):1 p.m., Registration1:30 p.m., Bocce Clinic2 p.m., Bocce Begins

Sporting Clays Competition:1 p.m., Registration1:30 p.m., Shooting Clinic2 p.m., Skeet/Trap/Five-Stand Begins

Following the Tournaments:• Cocktails & hors d’oeuvres• Dinner• Live Auction and Silent Auction• Raffle Prizes• Awards Ceremony

Judge McVerry honored for distinguishedcareer and continuing service

by Tracy Carbasho

U.S. District Court Judge TerrenceMcVerry has always maintained a specialphilosophy in his life and his career.

“I have tried in the most seriousway to adjust my views and amend myown life to do the right thing for theright reasons. That is what judging isabout,” he said. “Being a judge is not aneasy job. One must deal with relativelyunsolvable issues in people’s lives ona daily basis.

“I especially experienced this as aCommon Pleas Court Family Divisionjudge where my decisions invariablyaffected the lives of families on a dailybasis,” he added. “Those types ofprofessional responsibilities changedmy outlook on life and gave me a morefocused vision of what my perspectiveshould be as an adjudicator of the lifeof others.”

Fellow judges, colleagues and friendsagree that McVerry has served as arole model and exuded professionaland personal qualities that have made

a lasting impression on others. Morethan 75 people gathered at a receptionin March to honor him for his contributions to the legal profession ingeneral and to the bench in particular.

The reception, coordinated by theACBA’s Federal Court Section, wasalso an appropriate venue to recognizeMcVerry’s transition to senior judgestatus. He elected senior status as ofOct. 1, 2013.

“I was humbled by the accoladesand assured all present that I wasn’tretiring from the court, but rathershifting to a new status and presentingan opportunity for another new federaldistrict court judge to join our familyof judges in the U.S. District Court forthe Western District of Pennsylvania,”he said. “When a federal district courtjudge elects senior status, a full-timedistrict judge vacancy becomes available and I believe now is the bestopportunity for this to happen in ourdistrict as a new judge may be

Judge Terrence McVerryU.S. District Court Continued on page 5

Page 2 / May 16, 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.

May

Michael Feeney ......................412-338-4733

Dan Fitzsimmons ....................412-350-4407

Paul A. Supowitz......................412-624-2901

June

Robert J. Donahoe ..................412-833-0800

Russell D. Giancola ................412-553-6355

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 6,227

© 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.

Commonwealth of Pennsylvania v.Keith Caldwell, Todd, J. .........................................................Page 133Criminal Appeal—PCRA—Homicide (1st Degree)—Ineffective Assistanceof Counsel—Waiver—DNA Analysis—Failure to Present Evidence

Commonwealth of Pennsylvania v.Roy Blackwell, Todd, J. ..........................................................Page 139Criminal Appeal—Possession/PWID—Weight of the Evidence—Sufficiency—Drugs for Personal Use

Commonwealth of Pennsylvania v.Reginald Worthy, Todd, J. ......................................................Page 141Criminal Appeal—PCRA—Untimely—Defendant ClaimsIncompetency Caused Him to File Petition 20 Years Too Late

Commonwealth of Pennsylvania v.Peter A. Grujich, Todd, J. ......................................................Page 145Criminal Appeal—PCRA—Ineffective Assistance of Counsel—Sentencing (Discretionary Aspects)—Probation Violation—Failing to Advise Defendant to Seek Jury Trial

Commonwealth of Pennsylvania v.Robin Hickman, Todd, J. ........................................................Page 149Criminal Appeal—Homicide (3rd Degree)—Evidence—Hearsay—Suppression—Sentencing (Discretionary Aspects)—Juvenile DefendantInterrogation—Audiotape Played to Jury—Co-Conspirator Confession

Commonwealth of Pennsylvania v.Jamar Reese, Todd, J. ............................................................Page 153Criminal Appeal—PCRA—Ineffective Assistance of Counsel—Character Evidence—Failure to Call Witnesses—Failure to Object to Dismissal of Co-Defendant’s Case

Commonwealth of Pennsylvania v.Mark Evans, Mariani, J. .........................................................Page 158Criminal Appeal—POSS/PWID—Suppression—“Plain Feel”

Commonwealth of Pennsylvania v.Andy Buxton, Mariani, J. .......................................................Page 160Criminal Appeal—Sufficiency—Sentencing (Discretionary Aspects)—Aggravated Assault on Police Officer—Resisting Arrest

Commonwealth of Pennsylvania v.Justin Stollenwerk, Machen, J. .............................................Page 162Commonwealth Appeal—Enforcement of Plea Agreement Re: Megan’s Law Registration

EEOC challenges employer’s 12-monthmaximum medical leave policyby Maria Greco Danaher

The U.S. District Court for theNorthern District of Illinois hasdenied a motion filed by United ParcelService Inc. (UPS) to dismiss a claimby the Equal Employment OpportunityCommission (EEOC) on behalf of individuals challenging the company’sleave policy.

The challenged policy requires thatemployees “be administratively separated” from employment after 12months of medical leave. (EEOC v.United Parcel Service, Inc., N.D. Ill.,No. 09C5291, Feb. 11, 2014).

The Americans with DisabilitiesAct (ADA) prohibits an employerfrom “using qualification standards,employment tests or other selectioncriteria” that screen out disabled individuals, or a class of individualswith disabilities, unless the standard,test, or selection criteria is “job-relatedfor the position in question andconsistent with business necessity.”

Under the applicable regulations,“qualification standards” include the

“personal attributes, including the skill, experience, education, physical, medical, safety and otherrequirements” established by anemployer as requirements that mustbe met in order to be eligible for a particular position.

Since 2002, UPS has maintained a 12-month-and-out leave policy. Individuals who have been on medicalleave for 12 months are separatedfrom employment, unless they can return to work at that time without restrictions.

The EEOC alleges that such a leavepolicy operates as a “qualificationstandard” under the ADA since it prevents an individualized assessmentas to whether an impaired individualcan return to work with a reasonableaccommodation. According to theEEOC, such standard could operate to exclude disabled individuals from work.

UPS claims, however, that the abilityto regularly attend work and not missmultiple months on the job is an“essential job function” and is not a

qualified standard that would screenout disabled individuals. Under theADA, an “essential function” isdefined as the “fundamental jobduties” of the employment positionheld or desired by an individual.

The 7th U.S. Circuit Court ofAppeals previously held that regularattendance can be an essential jobfunction. However, in response to theUPS motion to dismiss, the EEOCargued that the policy was illegalbecause of its “100-percent healed”requirement, and not because of anyattendance issue.

The court agreed and denied themotion to dismiss, allowing the issuesto go forward for a decision by a jury.

The message to employers is clear.The focus on returning an individualto work after a medical leave shouldbe on the interactive process andwhether a reasonable accommodationmay assist in returning that person tohis or her job. Focusing on a particulartime limitation for absence may createunintended liability under the ADA’s“qualification standard” language. n

May 16, 2014 / Page 3

courts. Counties received $156.7 million and municipalities received$51.3 million to support local government programs. Crime victimsreceived a total of $35.3 million inrestitution, and various entitiesreceived $4.3 million.

In addition to PAePay, the Pennsylvania’s court case-managementsystems provide several features toimprove collections. They include theability to generate customized courtpayment delinquency letters and toshare information with the PennsylvaniaDepartment of Transportation for suspension of the driver’s licenses ofdefendants failing to pay court costsrelated to traffic violations. The case-management systems also havethe ability to share financial data from cases with outside collectionagencies, which are currently used by37 counties.

The money distributed to supportgovernment programs and crime victims came from fees, fines, costsand restitution collected by 533 magisterial district courts and thecriminal divisions of the 67 Common Pleas courts and thePhiladelphia Municipal Court. Itexcluded money collected from civilcases processed by Pennsylvania’sCommon Pleas courts and casesprocessed by the Traffic Division ofthe Philadelphia Municipal Court. These courts have yet to beintegrated into a statewide case-management system. n

Pennsylvania courts distribute $455 million in 2013by Steve Schell

Pennsylvania’s courts distributedapproximately $455 million in fees,fines, costs and restitution in 2013.

Most of the money was received bythe state, local governments and victims of crime, while a small portionof the money was distributed to variousentities, such as schools, libraries andtax agencies.

“The judiciary’s first priority is thefair and timely administration of justice, but after cases are adjudicated,it is important to enforce the collectionof court-ordered fees, fines, costs andrestitution,” said Pennsylvania SupremeCourt Chief Justice Ronald D. Castille.“We continue to enhance court collectionsby working closely with the local officials responsible for collecting themoney and through the developmentof new technology such as PAePay.”

PAePay is an application thatallows defendants to convenientlymake payments via the Internet with adebit or credit card. A record $62 million in court fees, fines, costs andrestitution was collected through PAePay in 2013.

“By providing this convenient wayto settle court-ordered payments,defendants can avoid facing arrest,contempt of court proceedings, driver’s license suspensions, and/oradditional collection agency fees,”said Castille.

The state received $207 million ofthe total $455 million collected by the

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May 16, 2014 / Page 5

appointed to our court at full capacity.It is a win-win situation for our court.”

Thomas May, who chairs the ACBA’sFederal Court Section, said McVerryhas rendered a consistent level ofservice to the courts and the communityand is well noted for his professionalism,compassion and intelligence.

“He has a history of service to thecommunity on the bench, as the countysolicitor and a prosecutor,” said May.“Honoring him for his past and continuing service was appropriate.”

Mark Hall, who has served as acareer law clerk for the judge since2006, said McVerry has been an outstanding role model – emanatingthe traits of attention to detail, thoroughness and “uncommon decency,”which he describes as making sure all individuals are respected andtreated fairly.

When asked why he thoughtMcVerry deserved to be recognized,Hall echoed the judge’s very own sentiment about life.

“He cares deeply about doing theright thing for the right reasons, andhe doesn’t care who gets the credit,”said Hall. “Working with JudgeMcVerry has been a truly specialexperience and I hope it continues fora long, long time.”

Hall said one incident, in particular,stands out as something McVerry didthat really epitomized the type ofjudge he is. At the time, Hall was servingas a clerk for another judge, but hecouldn’t help be impressed withMcVerry’s actions.

“My first impression of JudgeMcVerry occurred in the context of acriminal case with a motion to suppressevidence. I didn’t know the judge, but

JUDGE McVERRYcontinued from front cover

he had a reputation as a ‘law-and-order’ judge with his history as a former prosecutor,” recalled Hall.“The officers claimed they had seendrug paraphernalia in the defendant’shome. Rather than simply believingthe officers, Judge McVerry took a sitevisit to see for himself. It was reallyimpressive to me and others that hewas so willing to remain fair and unbiased and try to reach the correctresult no matter what.”

Keirstin Yost, deputy clerk forMcVerry, has also learned valuablelife lessons while working with thejudge since 2008.

“The most valuable life lesson hehas taught me is to treat others withrespect and to be courteous, even inthe most stressful situations. Professionally, he has encouraged meto learn more every day,” said Yost.“He is very engaging and is happy tospeak with any of his staff, includinginterns, after a proceeding to answerany questions we might have or toenlighten us on how he came to thedecision he did.”

Yost said McVerry is also the hardestworking boss she has ever had with awork ethic that is to be admired. Shebelieves his best personal qualitiesare his sense of humor, his candidnessand his love for his family.

“He has made my job as a courtroomdeputy the most rewarding of mycareer. I wake up for work excited andlook forward to what my day will turnout to be,” she said. “Judge McVerryhas made my job fun and interestingby really encouraging me to be part ofthe judicial process. It has been anhonor to work for his honor.”

Yost and Hall have learned manylife lessons from McVerry in a shortperiod of time, while others haveknown about his attributes for

decades. Speaking at the receptionwere U.S. District Court Chief JudgeJoy Flowers Conti and former ChiefJudge Donetta Ambrose, who is nowone of five senior judges.

Ambrose has known McVerry for50 years. She describes him as unfailinglyrespectful and kind, as well as anexcellent colleague and a wonderfulfriend who has enjoyed a rich anddiverse career.

“He has been a lawmaker and lawyerin both private and public positions.Because of his wealth of experience,he has brought wisdom and experienceto the court, which has enhanced thestature of the court,” she said. “He wasinstrumental in developing standardjury instructions for the entire ThirdCircuit. Both the district judges andthe judges of the Court of Appealsrespect and admire him.”

Ambrose also noted McVerry’sdevotion to his wife Judy, their childrenand grandchildren.

Robert Barth Jr., clerk of the court,said a senior judge must be at least 65years old and also have 15 years ofservice. If a judge reaches the age of65 and has less than 15 years of service,he or she must continue until their ageplus their years of service equal 80.

Taking senior status is not mandatory.Senior judges have the same duties asactive judges, but are permitted totake a reduced caseload – as low as 25percent of what the active judges didin the previous calendar year.

“Most of us carry at least a 50 percentworkload, which gives the activejudges more time to spend on theirwork,” said Ambrose. “We are all tryingcases and writing opinions. We serveon committees and are active in courtadministration. Obviously, that resultsin helping to reduce costs and delays inthe public administration of justice.”

Conti said the work of the seniorjudges enhances the court’s overallefficiency and their depth of experiencemakes them a good resource for allactive judges. For example, McVerry’sinsights about court procedure havehelped to shape the court.

“He is respected by the bar and isknown for his good judicial temperamentand his fairness to all who appearbefore him,” said Conti. “He is a ‘manfor all seasons.’ He was an excellent

lawyer and legislator before hebecame a judge and he brings a keenintellect and even-tempered approachto his judicial duties.”

U.S. District Court Judge ArthurSchwab has known McVerry for morethan 12 years. Actually, they had theirconfirmation hearing together beforethe Judiciary Committee of the U.S.Senate in 2002.

“One of his important contributionsto the court is his consistent hardwork, arriving to his chambers eachmorning before the roosters areawake,” said Schwab. “He is well-knownfor his thoughtful and carefully craftedopinions and his courteous treatmentof all who come before him.”

McVerry shares some words of wisdom with young judges. His adviceincludes the following suggestions:

“Don’t forget who you are (a judgeand neutral decision-maker). You areno longer an advocate other than forfair justice; You are now a decision-maker taking all sides into consideration(other than when a jury decides thefacts of the matter); Never be otherthan fair – no bias, prejudice or otherinfluence that might affect you shouldbe in your decision calculus; Be prepared before you act; Reviewissues in advance with law clerks;Respect, respect, respect everybody,including lawyers, clients, jurors, witnesses, court personnel and visitors;Complete a pre-hearing memoregarding facts and applicable law;Make the court experience special forall, understandable and fair.”

McVerry received his law degreefrom Duquesne University in 1968. He served in the U.S. Army and thePennsylvania Air National Guard. Heserved as an assistant district attorneyin Allegheny County from 1969 to1973. He served as a member of thePennsylvania General Assembly from1978 until 1990.

He practiced as an attorney at several local law firms from 1972through 1998 when he was appointedby the governor to serve as a judge onthe Court of Common Pleas ofAllegheny County. He later served asthe solicitor for Allegheny Countyfrom 2000 until 2002 when he wasnominated by the president to serveon the U.S. District Court. n

Publicize Your Section and Committee News!The ACBA Communications Department is eager to promote any special activity or newsworthy event emanating from yourCommittee or Section of interest to ACBA members, the media, or the general public. Email us at news@acba.org with thefollowing information:u Name and description of the event u Date, time, and place of the eventu Name(s) of the sponsoring Section/Committee(s) u Name(s) of speakers and titles of presentationsu How many people do you expect to attend? u Name and phone number of a contact personu Will there be an admission fee or ticket sales? If so, how much? u Are reservations needed to attend the event? u Is there any other information you would like to share with us?Thank you for your cooperation! n

Page 6 / May 16, 2014

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Final regulations issued on ACA’s 90-day waiting period

by Sandy Niespodzianski

The federal government has issuedfinal regulations on the AffordableCare Act’s 90-day waiting period limit.

For plan years beginning on orafter Jan. 1, 2014, a group health planand a health insurance issuer (the carrier) offering group health insurancecoverage may not apply any waitingperiod that exceeds 90 days. This ruleapplies to both grandfathered andnon-grandfathered plans.

On Feb. 20, 2014, final and additionalproposed rules were issued by theDepartments of Labor, Health andHuman Services, and the Treasury.

The following outlines notablechanges from previously issued proposed regulations:Effective Date. The final regulations

apply to plan years beginning on or

after Jan. 1, 2015. For plan yearsbeginning in 2014, employers maycomply with either the previouslyissued proposed regulations or thefinal regulations.Bona Fide Employment-Based

Orientation Period. A waiting periodis the period that must pass beforecoverage for an employee or dependentwho is otherwise eligible to enrollunder the terms of a group health plancan become effective. To be otherwiseeligible to enroll in a plan means thatan individual has met the plan’s substantive eligibility conditions (suchas being in an eligible job classificationor achieving job-related licensurerequirements specified in the plan’sterms). The maximum 90-day waitingperiod does not have to begin until thefirst day after the substantive eligibilityconditions are met.

The final regulations indicate that areasonable and bona fide employment-based orientation period can be a substantive eligibility condition andthe proposed rule offers a one-monthorientation period. The idea is that,during an orientation period, anemployer and employee could evaluatewhether the employment situationwas satisfactory for each party, andstandard orientation and trainingprocesses would begin. One monthwould be determined by adding onecalendar month and subtracting onecalendar day, measured from anemployee’s start date in a position thatis otherwise eligible for coverage.

For example, if an employee’s startdate in an otherwise eligible positionis May 3, the last permitted day of the

orientation period is June 2. Similarly,if an employee’s start date in an otherwiseeligible position is Oct. 1, the last permittedday of the orientation period is Oct. 31.

If there is not a corresponding datein the next calendar month uponadding a calendar month, the last permitted day of the orientation periodis the last day of the next calendarmonth. For example, if the employee’sstart date is Jan. 30, the last permittedday of the orientation period is Feb. 28(or Feb. 29 in a leap year). Similarly, ifthe employee’s start date is Aug. 31,the last permitted day of the orientationperiod is Sept. 30.Rehired Employees/Employees

Changing to and from Eligible JobClassifications. The final regulationsprovide that a former employee who isrehired may be treated as newly eligiblefor coverage upon rehire and, therefore,a plan may require that individual tomeet the plan’s eligibility criteria andto satisfy the plan’s waiting periodanew, if reasonable under the circum-stances. For example, the terminationand rehire cannot be a subterfuge toavoid compliance with the 90-daywaiting period limitation. The sameanalysis would apply to an individualwho moves to a job classification thatis ineligible for coverage under theplan, but then later moves back to aneligible job classification.Multi-employer Plans.Multi-employer

plans maintained pursuant to collectivebargaining agreements have uniqueoperating structures and may includedifferent eligibility conditions basedon the participating employer’s industryor the employee’s occupation.

On Sept. 4, 2013, the federal government departments issued a setof frequently asked questions statingthat if a multi-employer plan has aneligibility provision that allowsemployees to become eligible for coverageby working hours of covered employmentacross multiple contributing employers(which often aggregates hours by calendarquarter and then permits coverage toextend for the next full calendar quarter,regardless of whether an employeehas terminated employment), thedepartments would consider that provisiondesigned to accommodate a uniqueoperating structure, (and, therefore,not designed to avoid compliance withthe 90-day waiting period limitation).

The final regulations include thefollowing example.

Eligibility rules should carefully bereviewed for compliance with the 90-day waiting period rules, as well asthe employer penalty provisions andnondiscrimination rules. While it ispermissible under the 90-day waitingperiod rules for a plan to use substantiveeligibility conditions (e.g., job classifi-cation) to deny coverage to certainemployees, have a waiting period ofan additional month during a “bonafide employment-based orientationperiod,” and impose a new waitingperiod for rehired employees and/oremployees changing to and from eligiblejob classifications, this raises issuesfor large employers subject to theemployer penalty beginning in 2015.

In addition, having less generouseligibility rules for lower paid employeesor protected classes can also violatevarious nondiscrimination rules. n

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Page 8 / May 16, 2014

NLRB ruling evokes strong reactionabout unionization of college athletesby Tracy Carbasho

Football players at NorthwesternUniversity scored a touchdown with arecent ruling from the National LaborRelations Board, but the game is farfrom over.

The NLRB ruling, which hassparked controversy and attentionthroughout the United States, essentiallygives qualifying players the right toform a union at the private universityin Illinois. The decision was based onthe board’s conclusion that all grant-in-aid scholarship players for the footballteam who have not exhausted theirplaying eligibility are employees of theuniversity and not just student-athletes.

The March 26 ruling was signed byPeter Sung Ohr, who serves as theregional director of Region 13 of theNLRB in Chicago. Ohr noted in thedecision that the football players whoreceive scholarships fall within thebroad definition of “employee” as outlined by the National Labor RelationsAct (NLRA).

The ruling is in response to a petitionfiled by the College Athletes PlayersAssociation (CAPA), which was foundedin January of this year with the intentionof asserting the labor rights of North-western University football playersand ultimately helping to reform whatit calls unjust rules of the NationalCollegiate Athletic Association (NCAA).

Northwestern, referred to in thedecision as the employer, is a memberof the NCAA. The NCAA is responsiblefor creating and enforcing the rulesgoverning intercollegiate sports forparticipating colleges.

“This decision will be a precedentfor other private collegiate institutions.Student-athletes at private institutionshave the most to gain, but I think allNCAA student-athletes will ultimatelybenefit,” said Jay Reisinger, who chairsthe ACBA’s Sports Law Committee.“The NCAA makes hundreds of millionsof dollars on the backs of student-athletes, but this dynamic will change.In my opinion, the decision will forcethe NCAA to change how it treats itsstudent-athletes.”

Northwestern University has fileda request for the full, five-memberpanel of the NLRB in Washington,D.C. to review and then reverse theregional director’s decision. It is notknown whether the NLRB will agreeto review the regional director’s decision,but many attorneys believe the boardhas no choice in light of the substantialpublicity generated by the case.

Reisinger does not believe the university has any valid points in itsrequest for review. He believes theNCAA is likely to appeal, there may beCongressional intervention and many amicus briefs will be filed by universities and other organizations.Some believe the case could be entangledin federal court long after the currentstudent-athletes have graduated.

“However, I believe some compromisebetween student-athletes is the morelikely final outcome,” said Reisinger.“The NCAA will attempt to mitigateits losses and reach a compromisewith student-athletes.”

The NCAA has also expressed itsdisappointment in the ruling.

“We frequently hear from student-athletes across all sports that theyparticipate to enhance their overallcollege experience and for the love oftheir sport, not to be paid,” said DonaldRemy, chief legal officer for theNCAA. “Over the last three years, ourmember colleges and universities haveworked to re-evaluate the current rules.

“While improvements need to bemade, we do not need to completelythrow away a system that has helped

literally millions of students over thepast decade alone attend college,”added Remy. “We want student-athletes – 99 percent of whom willnever make it to the professionalleagues – focused on what mattersmost…. Finding success in the classroom,on the field and in life.”

Northwestern’s request for reviewbasically stresses that Ohr appliedincorrect legal standards and ignoredkey evidence that supports the university’sposition that student-athletes arenot employees.

The university says the reviewshould be granted because the petitionpresents a unique issue; the regionaldirector has misapplied and departedfrom officially reported board precedent;and the regional director’s findings onsubstantial factual issues are erroneouson the record and the errors prejudiciallyaffect Northwestern’s rights.

Northwestern asserts that the playersare akin to the graduate students inthe Brown University case (342 NLRB483, 2004), where the NLRB found thestudents were not employees underthe NLRA.

Northwestern is asking that theregional director’s decision bereversed, a finding be made that thefootball scholarship student-athletesare not employees within the meaningof the NLRA and that the originalCAPA petition be dismissed.

University officials have stated,“Unionization and collective bargainingare not the appropriate methods toaddress the concerns raised by student-athletes. Northwestern considers itsstudents who participate in NCAADivision I sports, including those whoreceive athletic scholarships, to bestudents first and foremost. Webelieve that participation in athleticevents is part of the overall educationalexperience, not a separate activity.”

CAPA, in turn, is asking the NLRB todeny Northwestern’s request for review.

Although the regional director hasordered that Northwestern footballplayers conduct an election to determineif they want to form a union, theresults will not be revealed until thecase is finalized. Local attorneys analyzing the ruling and the entirecase concur that the road to a finaldecision will be a long one filled withan abundance of twists and turns.

Maria Greco Danaher, a shareholderwho specializes in employment law atOgletree, Deakins, Nash, Smoak &Stewart, noted that even if the fullNLRB panel decides in favor of theplayers, the university could stillrefuse to bargain with any union thatmight be formed. She also pointed outthat the regional director’s rulingapplies only to scholarship athletes atNorthwestern, which is a private institution, so it is unlikely that stateschools would be impacted.

She believes the March rulingreflects the NLRB’s underlying agendato disseminate its message thatunionization is available. The NLRBlost its battle in the past to requireemployers of a certain size to postnotices informing employees of theirrights to unionize.

“It seems like the decision is part ofthe NLRB’s underlying agenda to getthe message out,” said Danaher. “I’mnot saying whether that agenda isright or wrong, but I think the rulingwas made without thinking aboutquestions regarding issues such aswhether the scholarships are taxable,can players strike the night before abig game, and are players entitled tothe Family and Medical Leave Act.”

The university’s football team iscomprised of approximately 112 players,85 of whom receive grant-in-aid

scholarships that pay for their tuition,fees, room, board and books. The playerson scholarship typically receivegrant-in-aid totaling $61,000 for eachacademic year.

“Under current NCAA regulations,the employer is prohibited from offeringits players additional compensationfor playing football at its institutionwith one exception,” the ruling states.“The employer is permitted to provideits players with additional funds out ofa student assistance fund to cover certainexpenses, such as health insurance,dress clothes required to be worn bythe team while traveling to games, thecost of traveling home for a familymember’s funeral, and fees for graduateschool admittance tests and tutoring.The players do not have FICA taxeswithheld from the scholarship moniesthey receive. Nor do they receive a W-2tax form from the employer.”

The NLRB ruling outlines numerousreasons why the football playersshould be considered employees. Forexample, they are subject to certainteam and athletic department rulesset forth in a handbook, but the regularstudent population is not subject tothese same rules and policies.

In addition, the players must abideby a social media policy, whichrestricts what they can post on theInternet, including Facebook, Twitterand Instagram. They are prohibitedfrom denying a “friend request” froma coach. Media interviews are prohibitedunless the players are directed toparticipate in such interviews that arearranged by the athletic department.

Furthermore, players are notallowed to profit from their image orreputation by doing such things asselling merchandise or autographs.

“Clearly, the employer’s playersperform valuable services for theiremployer. Monetarily, the employer’sfootball program generated revenuesof approximately $235 million duringthe nine-year period of 2003 to 2012through its participation in NCAADivision I and Big Ten Conference thatwere generated through ticket sales,television contracts, merchandise salesand licensing agreements,” stated Ohr.

“The employer was able to utilizethis economic benefit provided by theservices of its football team in anymanner it chose,” the ruling continued.“Less quantifiable, but also of greatbenefit to the employer, is theimmeasurable positive impact toNorthwestern’s reputation that a winningfootball team may have on alumnigiving and increase in number ofapplicants for enrollment.”

The NLRB document states thatplayers on scholarship are initiallyrecruited and ultimately given financialassistance because of their athleticprowess. Therefore, the board concludesthat the scholarships are compensationfor the athletic services rendered forthe employer. The fact that the universitydoes not treat the scholarships orstipends as taxable income is notdispositive of whether the assistance iscompensation, according to the ruling.

“Equally important, the type ofcompensation that is provided to theplayers is set forth in a tender thatthey are required to sign before thebeginning of each period of the scholarship,” said Ohr. “This tenderserves as an employment contract andalso gives the players detailed information concerning the durationand conditions under which the compensation will be provided to them.”

Daniel Kunz, vice chair of theACBA’s Sports Law Committee, saidthe definition of an employee versusstudent-athlete has been a hot topicfor several years.

“The ruling could mean that anyprivate college scholarship recipientsare employees for purposes of the full range of laws that govern theemployment relationship which willbenefit the student-athlete,” saidKunz. “If the NLRB declines to reviewNorthwestern’s appeal or sides withthe regional director, scholarship athletes at any private institutioncould similarly be represented by aunion for the purposes of collectivebargaining with the institution. Thiscould have far-reaching effects on allintercollegiate athletics.”

John Demas, an attorney at Dickie,McCamey & Chilcote, is a formerDivision I college athlete who knowsfirsthand that the time devoted to athletics each week typically exceedsthat spent on academics. For this reason,he understands how scholarshipathletes could fit within the definitionof employees.

“The reason I believe we have troublewith this conceptually is that theNCAA has done such a masterful jobof making the term ‘student-athlete’part of the lexicon,” said Demas. “Theterm was originally crafted by theNCAA to avoid workers’ compensationclaims and they continue to push thenotion of the student-athlete to supporttheir agenda today.

“While I am not a proponent ofpaying college athletes, I do thinkthey should be entitled to protections,such as continuing medical benefitsafter participation, guaranteed scholarships, the right to transferwithout penalty, and other benefits totruly help prepare them for life after sports,” added Demas. “The universities and the NCAA both standto receive a smaller slice of the pie, ifthe athletes in the revenue-generatingsports gain more bargaining power.The athletes in the non-revenue generating sports may be the victims,if universities cut their programs tolimit their costs.”

Mike Healey, an attorney at Healey& Hornack, said the NLRB ruling waswhat he expected based on the facts of the case. He expects the case to ultimately result in the NCAA losing some of its unbridled powerover athletes.

He emphasized that there is nobenefit to college athletes yet becausethere is still much to play out legallywith the case possibly going as far asthe U.S. Supreme Court. n

May 16, 2014 / Page 9

YLD launches Diverse Law Student InitiativeEditor’s Note: This article waswritten by Daniel Conlon-Gutierrezand Bethany Williard, both ofwhom will graduate from theDuquesne University School ofLaw in June; and Casey Martinez,who will graduate from the University of Pittsburgh School ofLaw in May 2015.

The ACBA Young Lawyers Division’sDiversity Committee has implementeda new program called the Diverse LawStudent Initiative (DLI).

The program was created to assistand encourage diverse law students indeveloping their professional leadershipskills and to help position them toassume leadership roles within theACBA once they become attorneys.The first DLI class includedDuquesne and Pitt law students whowere in their second or third year oflaw school. The program is co-chairedby Kimberly Tague and Tyra Oliver.

While the DLI aimed to providenetworking opportunities withlawyers, the students also recognizedthis as a chance to interact with otherlaw students. The opportunity wasparticularly meaningful for DuquesneLaw School evening students.

Jonathan Smith noted that as anevening student with a full-time job, it is difficult to get exposure to thelegal community and members of various courts.

“This program provides an opportunity to gain that necessaryexposure,” said Smith.

Ernest Sharif said joining the groupenabled him to become more aware ofthe variety of available opportunitiesfor learning and networking in the area.

The students attended multiplefield trips throughout Pittsburgh.

In the fall, the class visited theSupreme Court of Pennsylvania, theSuperior Court of Pennsylvania, andthe Allegheny County Court of CommonPleas Criminal Division. Before theSupreme Court arguments, Chief Justice Ronald Castille welcomed thestudents to the court. Prior to theSuperior Court arguments, JudgeChristine Donohue shared her insightabout the composition of the bench,which has a majority of women.

Criminal Division Judge EdwardBorkowski invited students to observeproceedings and shared his story ofhow he got to the bench.

For DLI member Bethany Williard,who will graduate from Duquesne inJune, Borkowski’s story hit homebecause he grew up in Lawrencevilleon Home Street – just houses awayfrom where she now lives.

In the spring, the DLI class visitedthe U.S. District Court for the WesternDistrict of Pennsylvania to observe aproceeding before Judge Cathy Bissoonand to tour the federal courthouse.The students also went to the AlleghenyCounty Court of Common Pleas FamilyDivision to observe proceedingsbefore Judge Kim Berkeley Clark. Alunch hosted by Chief Public DefenderElliot Howsie was a class favorite.

For Pitt law student Casey Martinez and Duquesne studentDaniel Conlon-Gutierrez, Howsie’spersonal story was particularly inspiringand his down-to-earth practical advicewas encouraging.

In March, the U.S. Attorney’sOffice invited the class to meet withthe chairs of each division. When

asked about the importance of diversity,the U.S. Attorney for the Western Districtof Pennsylvania, David Hickton,replied, “In the workplace, embracingdiversity is both wise and necessary.

“An organization which embracesthe value of a diverse workforce isable to remain relevant and timelessas it strives to continuously broadenits perspective; evolve and achieveexcellence; better reflect the populationit serves; and offer by example the fullpromises of the freedoms and opportunities to all of our citizens ofthis great nation,” added Hickton.

The inaugural year of the DLI concluded on April 16 when the classcelebrated at a graduation receptionwith the ACBA Board of Governors,YLD Council members and other distinguished guests. While the studentsreminisced about their experiences, itwas also a time to look forward.

“The DLI was a great opportunityto meet successful diverse attorneys whowere willing to share their experiencesand provide me with great advice formy future legal career,” said CristianMinor, who will graduate from theUniversity of Pittsburgh this month.

The DLI had a successful year andhas hopes of increased student andattorney participation in the future.

Asra Hashmi, a DLI graduate whoplans to return to the program nextyear, said seeing the passion exhibitedby the attorneys, judges, and legalstaff with whom she met, along withtheir willingness to meet with thegroup, reinforces the vibrancy of thePittsburgh legal community.

The DLI graduates from the inauguralclass included Minor, Hashmi,Williard, Smith, Sharif, Martinez,Conlon-Gutierrez, Kyle Perdue andMarika Stettner. n

ACBA PHOTO GALLERYWWW.ACBA.ORG/ACBA/MEMBERS/PHOTOS

PHOTO BY MARK HIGGS

The ACBA Young Lawyers Division’s Diversity Committee’s Diverse Law Student Initiative celebrated with agraduation reception in the Koppers Building on April 16. The inaugural DLI class included, front, from left:Tyra Oliver, DLI co-chair; Casey Martinez, Bethany Williard, Marika Stettner, Asra Hashmi, Cristian Minor,Daniel Conlon-Gutierrez, and Regina Wilson, YLD chair; back: Joseph Williams, YLD chair elect; E. J. Sharif,Kyle Perdue, and Kim Tague, DLI co-chair.

Page 10 / May 16, 2014

Online CLEDelivered over the Web at your convenience. We call this 24/7 CLE. When you need the information (or the credits), log on to our Online Campus and

Live Webcasts

Upcoming Continuing Legal EducationAll PBI CLE programs are sponsored by

The Pennsylvania Bar Institute & The Allegheny County Bar Association and are held at the PBI Professional Development Conference Center

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excellence and achievement in thefield of intellectual property. Fortneyis an intellectual property attorneywith a background in chemistry andchemical engineering.

u u u

Two Pietragallo Gordon AlfanoBosick & Raspanti, LLP, partners havebeen appointed president of their lawschool alumni associations. Joseph J.Bosick, a founding partner of Pietragallo, has been appointed toserve as the 2014 President of the University of Pittsburgh School ofLaw Alumni Association, and P. Brennan Hart, a partner at Pietragallo,has been appointed to serve as Presidentof the Duquesne University School ofLaw Alumni Association for 2014-15.Bosick serves as Chair of the firm’sConstruction Practice Consortium.Bosick represents regional, national,and international companies in construction, general commercial,and product liability litigation and hisprofessional liability practice involves therepresentation of various professionalclients. Hart serves as Co-Chair of theProfessional Liability Practice Groupand Co-Chair of the Litigation Practice Group.

People on the MoveFox Rothschild

LLP has namedpartner James M.Singer as chair ofits firmwide Intel-lectual PropertyDepartment. Hewill oversee anational team of 80IP professionals –more than half ofwhom are regis-tered patent attorneys. Singer

guides clients throughout the processof identifying, acquiring, licensingand protecting their intellectual property assets, including patents,copyrights, and trade secrets.

James M.Singer

Begin your day with us at

www.pittsburghlegaljournal.org

May 16, 2014 / Page 11

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

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News and NotesGrogan Graffam,

P.C. is pleased toannounce thatshareholder JosephA. Macerelli hasbeen appointed anAlternative DisputeResolution (ADR)Mediator andArbitrator by theUnited States District Court forthe Western Dis-trict of Pennsylva-

nia. Macerelli has participated innumerous ADR proceedings andrecently completed forty hours of formal mediation training provided bythe Western Pennsylvania Chapter ofthe Federal Bar Association. He chairsthe firm’s Professional Liabilitypractice group and is a member of the firm’s Board of Directors. He concentrates his practice in the areasof medical malpractice and other professional liability defense, insurancedefense, personal injury, and productsliability defense.

u u u

Lester N. Fort-ney, a director ofThe Webb LawFirm, was namedpresident of thePittsburgh Intel-lectual PropertyLaw Association(PIPLA) for the2014-15 term.PIPLA is an asso-ciation for intel-lectual propertyattorneys that

provides continuing legal educationand legal resources for its members.PIPLA annually presents an Inventorof the Year Award to inventors whodirectly benefit the Western Pennsylvaniaregion, and also annually presents anIntellectual Property LeadershipAward to a local law student to honor

Bar BriefsContinuing Legal Educationsponsored by the ACBA

LABOR AND EMPLOYMENT LAW SECTIONLabor Issues for Employment Attorneys

This program will highlight the issues that impact not only unionized workforces, but alsothe private sector non-unionized employers, under the National Labor Relations Act.Discussion will include a broad range of workplace rules, employer investigations, andsocial media activities, all with implications under the Act and of which employment

lawyers should be aware. *Lunch will be served.

Credits: 1 hour of Substantive CLE credit • When: Tuesday, May 27, 2014; Registration: 11:30 a.m.; 12:00 p.m. - 1:00 p.m. • Where: ACBA Conference Center Auditorium, 920 City-County Building• Cost: $40 for Labor & Employment Law Section members, $50 for ACBA members, $60 for Non-ACBA membersLast date to pre-register: Friday, May 23, 2014 10:00 a.m.

PROBATE AND TRUST LAW SECTIONWhose Fault is it Anyway? Ethical Dilemmas and

Malpractice Risks Facing Estates and Trusts LawyersA study of ethical dilemmas and malpractice risks through a series of hypothetical

situations, all drawn from real life dilemmas facing estates and trusts lawyers. Attendeeswill get tips to lower their risk of being sued and practice advice to help them work

through those dilemmas. *Annual Meeting and Reception will immediately follow program.

Credits: 1 hour of Ethics CLE credit • When: Thursday, May 22, 2014; Registration: 3:30 p.m.; 4:00 p.m. - 5:00 p.m. • Where: ACBA Conference Center Auditorium, 920 City-County Building• Cost: Free for Probate and Trust Law Section members, $40 for ACBA members, $50 for Non-ACBA membersLast date to pre-register: Tuesday, May 20, 2014 10:00 a.m.

Registration information for all programs unless otherwise noted: Mail in registration form with payment to the ACBA CLE Department at 400 Koppers Building, 436 Seventh Avenue, Pittsburgh,Pa. 15219. Credit card registration is also available at www.acba.org/lrxweb/clereg1.lrx.

Joseph A.Macerelli

Lester N.Fortney

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Annual ACBA Golf Tournament promises something for everyoneJudge McVerry honored for distinguished career and continuing serviceEEOC challenges employer’s 12-month maximum medical leave policyPennsylvania courts distribute $455 million in 2013Final regulations issued on ACA’s 90-day waiting periodNLRB ruling evokes strong reaction about unionization of college athletesYLD launches Diverse Law Student InitiativeUpcoming Continuing Legal EducationBar Briefs