PA Superior Court Announces New Appellate Mediation Program

On October 6, 2006, the Administrative Office of Pennsylvania Courts issued a press release entitled "Superior Court of Pennsylvania Establishes Appellate Mediation Program". The new Appellate Mediation Program is intended "to provide litigants with a prompt, effective, alternative means of creatively resolving disputes without many of the expenses associated with litigation."

Since the PA Superior Court reviews & decides appeals taken from rulings of the Orphans' Court Divisions of the various courts of common pleas in the Commonwealth, it appears that this appellate mediation program will apply to all appealled matters inititated in that Division under Sections 711 and 712 of the Probate, Estates & Fiduciaries Code once it is fully developed.

However, I cannot yet find on the website of the AOPC a proposed court rule that would implement this new Program, which is described only in the Press Release, as follows:

The program initially will apply to civil appeals from the Eastern District of Pennsylvania. The mediation process will occur on a fast-track basis during the pre-briefing stage of appeal.

With the implementation of this program, Superior Court joins numerous federal and state courts that have adopted mediation programs as successful tools for case management. Superior Court, one of the busiest appellate courts in the nation, is projected to docket more than 8,200 new appeals in 2006, an increase of about 3.5 % from the number docketed in 2005.

Superior Court is working with fewer judges this year due to the retirement of four of its members in the past year. The creation of this mediation program will enable the court to better manage its increasing caseload as well as provide a savings to litigants in terms of costs and time on appeal.

The Press Release also announced the appointment of P. Douglas Sisk as the first director of the new Program, saying he is "an experienced attorney with extensive appellate and mediation experience, [who] has developed a similar program for the U.S. Court of Appeals for the Third Circuit." As the program director for the Superior Court, Sisk will select and mediate Superior Court appeals that are appropriate for alternate dispute resolution.

The model for the PA Superior Court's Appellate Mediation Program appears to be the "United States Third Circuit Court of Appeals Appellate Mediation Program", which is described online here. The descriptive materials posted online about that federal court program include "Frequently Asked Questions", Court Rules, and Forms. That program is generally described as follows:

The Third Circuit's Appellate Mediation Program conducts confidential mediation conferences pursuant to Rule 33 of the Federal rules of Appellate procedure and Third Circuit Local Rule LAR 33. The main purpose of the Mediation Program is to help parties amicably resolve the dispute which is the subject of the appeal before the court.

Most appeals are eligible for mediation. Each year, the program conducts mediations in hundreds of cases and helps the parties amicably resolve many cases. The mediations are conducted by the program's director, assistant director, and by senior circuit and district court judges.

The complete AOPC Press Release regarding the new Superior Court Appellate Mediation Program can be found online here.

Update on 11/03/06:

I came across an excellent article by P. Douglas Sisk, Esq., regarding a trap for the unwary in Commonwealth appellate practice. The article, entitled "What You Don't Know Can Hurt Your Client And You", is found here. It speaks well for qualifications of the first director of the new Program, showing that he is, indeed, "an experienced attorney with extensive appellate and mediation experience". Here is the summary of his article:

Two recent opinions of the Superior Court of Pennsylvania highlight the importance of strict compliance with the Pennsylvania Rules of Appellate Procedure. Among the numerous and arcane facets of appellate advocacy, the failure to comply with an apparently innocuous rule may be fatal to an appeal filed by an advocate unused to appellate litigation. The opinions also exemplify a trend among the appellate courts, both state and federal, to require strict compliance with the court rules. The Pennsylvania Superior Courts opinions in Jones v. Jones, 878 A.2d 86 (Pa.Super. 2005), and Forest Highlands Community Association v. Hammer, 879 A.2d 223 (Pa. Super. 2005), illustrate the need for strict compliance with the Rules.

In Amish Tragedy, Autopsies Required, Acceptance & Faith Abound

Dauphin County in Pennsylvania adjoins Lancaster County, where the tragic, senseless murder or wounding of ten school-aged girls occurred last Monday, October 2, 2006. Everyone I encountered this week here in Harrisburg questions and mourns the events that occurred at the West Nickel Mines School, near Quarryville, in Lancaster County, so close to home for us.

In a circumstance of sudden death, the Commonwealth's laws require an autopsy as part of an investigation. The role of the County Coroner in Pennsylvania is proscribed by various statutory provisions, drawn from various PA County Code laws, available online here. County Coroners -- although elected and not required to be physicians -- are subject to supervision and training by the Coroners' Education Board.

So coroners are trained professionals. But their work is little known. The coroner in another Pennsylvania county adjoining Lancaster County -- the Chester County Coroner's Office -- posted a "Frequently Asked Questions" article, found online here for the benefit of family and the general public.

In the case of the West Nickel Mines School shooting, Section 1237 required a "Coroner's Investigation", as involving "deaths occurring as a result of violence or trauma, whether apparently homicidal, suicidal or accidental. . . ."

An article published October 4, 2006, entitled "Lancaster Co. Coroner Talks About Autopsies", by Valerie Levesque, reporting for KWY-TV (CBS, Channel 3, Philadelphia), reported the role and reaction of the Lancaster County Coroner. See the article online here. Her description is heart-wrenching.

Even trained professionals were having a hard time dealing with what they saw in that one room school house on Monday. Lancaster County Coroner, Dr. Gary Kirchner, was the man responsible for dealing with the bodies and helping the families cope.

"This recent, is the worst I've ever encountered and I would hope to never repeat it," said Dr. Kirchner.

Dr. Kirchner talked about dealing with the bodies of five female victims. They ranged in age from 6 years-old to 13 years-old. The coroner described the scene of the incident.

"The scene was subdued. It was quiet. There was virtually no laughing and no smiling. It was one of the most somber scenes of this magnitude I've ever scene," said Dr. Kirchner.

The coroner says the victims families were equally as composed.

"They were calm. There was not weeping. They truly believe that God mandates everything," said Dr. Kirchner. Against Amish tradition and by law the coroner had to perform an autopsy on the victims.

"I was mandated to do that. I had no choice. I wish I would've had a choice. They were required to be autopsied," said Dr. Kirchner.

In the midst of our questioning, most of us are stunned by the reaction of the Amish community -- acceptance and forgiveness -- in a private way.

Instead, the Amish are coping with the slayings by looking inward. They are relying on themselves and their faith, just as they have for centuries, to get them through what one Amish bishop called "our 9/11." * * *

"Other than the embalming they prepare the bodies themselves. They make the clothes they dress the body and I really think it helps them work through the grieving process," said midwife Rita Rhoads, who delivered some of the slain children. * * *

The Amish say they are quietly accepting the deaths as God's will.

"They know their children are going to heaven. They know their children are innocent ... and they know that they will join them in death," said Gertrude Huntington, a Michigan researcher who has written a book about children in Amish society.

"The hurt is very great," Huntington said. "But they don't balance the hurt with hate."

On October 5, 2006, in a further article entitled "Families Bid Farewell To Shooting Victims", found online here, KYW-TV updated events to cover the first funerals.

An Associated Press article, dated October 2, 2006, entitled "The Amish: A world apart, strangers to violence", found online through CCN here, describes the Amish people, whose ancestors resided in Pennsylvania since 1730, and who now number 55,000 strong. It concludes:

"[A]t their core, the Amish believe life is based on faith. And belief in the world to come, where there is no violence."

Donations for victims and their families can be made at any branch of National Penn Bank, HomeTowne Heritage Bank, The Peoples Bank of Oxford or FirstService Bank.

Donations may also be mailed to The Nickel Mines School Victims Fund, care of HomeTowne Heritage Bank, P.O. Box 337, Strasburg, PA 17579.

* * *

Update: 02/09/07:

The Coroner referenced in this posting himself became the subject of criminal charges filed by the Pennsylvania Attorney General's Office for misconduct in office. See: PA EE&F Blog posting, Lancaster County Coroner Charged Criminally (02/09/07).

Update: 04/19/07:

Life moves on & carries us away from tragedies such as this. Articles posted by Lancaster County Onlines about the tragedy reported the changes, which hopefully allow for healing. See, for example:

• Donations in Amish school shooting top $4M -- Most used to cover medical expenses, counseling services for 5 wounded girls.
• Symbol of healing -- Six months after school killings, New Hope School opens.
• Nickel Mine Auction to be sold -- Nickel Mine Auction, which became a staging point for media and emergency workers following the Oct. 2 shootings at the former West Nickel Mines School, is going up for sale.
• Mass killer's widow plans to remarry -- Couple met when he delivered blankets to family shortly after October shootings, paper reports.

Update: 10/01/07:

For an update about the tragedy, at a one-year marking moment, see: PA EE&F Law Blog posting "Healing After Horror" (10/01/07).

PA Model Power of Attorney Form Updated

The Pennsylvania "Power of Attorney" law, in Chapter 56 of the PA Probate, Estates & Fiduciaries Code, found online in an unofficial form here, does not contain any models of POA forms. Generally, this is good legislative policy, so not to "lock in" an unchangeable form where the needs of users will differ.

However, customized forms create concerns for institutions, which review proposed agent actions for legality under the differing provisions of various documents.

To alleviate these concerns, the Philadelphia Bar Association recently updated its previously published form of power of attorney, recommended for use when institutional interaction is anticipated. It was announced on various lawyer listservs recently by the following message:

NEW GENERIC BANKING POWER OF ATTORNEY ANNOUNCED

The Executive Committee of the [Philadelphia Bar Association's] Probate & Trust Law Section is pleased to announce that the generic banking power of attorney first introduced to the Section in the late 80s, which became obsolete with the change in the power of attorney statute in 1999, has been reprised with the appropriate adaptations, and is now available electronically in two prominent websites: Philadelphia Estate Practitioners Handbook, and the Probate Section website of the Philadelphia Bar Association, under the Resources link.

These forms are also capable of being filled in on-line as to the name of the banking institution, depositor, agent and account.

The forms are intended for use at all banking institutions for banking or safe deposit boxes, but not for retirement accounts. Attorneys are encouraged to have clients sign these forms in addition to attorney-drafted general powers of attorney, in order to reduce the time and effort needed to convince banking institutions to accept powers of attorney presented to them on forms other than those promulgated by the institutions involved.

This project was the virtually single-handed effort of Gene Gillin, who, with the advice and consent of the Rules and Practice Committee and the Executive Committee, revised and improved the old form and had it set up in an Adobe write-in format.

Regional banking institutions are being asked to become familiar with the form and to honor it when presented by depositors.

Thanks go to Robert H. Louis, Esq., who wrote the message on the Philadelphia Bar Association's listserv, and to Daniel B. Evans, Esq., who forwarded the message. Most thanks go to Eugene H. Gillin, Esq., who updated the institutional POA form.

Older Americans Act Reauthorized & Updated

On September 30, 2006, Congress approved the sixteenth reauthorization, for an additional five-year period, of the "Older Americans Act" (OAA). The OAA is explained in detail online here. Its unofficial statutory form (Title 42 of U.S. Code, Chapter 35) is found online here. The reauthorized OAA now goes to President Bush for signature, which is expected, since it was approved by Congress without opposition and with the Administration's support.

The U. S. Department of Health and Human Services, per its Administration on Aging, issued a statement, dated October 2, 2006, by Josefina G. Carbonell, the Assistant Secretary for Aging, regarding passage of the Older Americans Act Amendments of 2006:

I commend the Congress for the successful passage of the 16th reauthorization of the Older Americans Act (OAA). I thank them for their leadership and compassion in understanding the vital role this Act plays in redirecting our long-term care system to help older Americans remain active and engaged in their communities – the overwhelming preference of the American people.

The OAA embodies our nation’s compassion toward ensuring the dignity and independence of our older citizens by promoting older Americans’ full participation in society, and supporting their overwhelming desire to remain living in their own homes and communities for as long as possible.

The Department's Statement highlighted some provisions including:

*Enhanced Federal, State, and Local coordination of long-term care services provided in home and community-based settings
*Support for State and community planning to address the long-term care needs of the baby boom generation
*Greater focus on prevention and treatment of mental disorders
*Outreach and service to a broader universe of family caregivers under the National Family Caregiver Support Program
*Increased focus on civic engagement and volunteerism
*Enhanced coordination of programs that protect elders from abuse, neglect and exploitation

Senior interest groups lauded the passage, and issued their own press & informational statements, such as that by AARP, dated October 1st, found online here.

The Center for Social Gerontology updated its OAA website here.

The Department provided the following links regarding the 2006 Reauthorization of OAA:

• Selected provisions of H.R. 5293 related to Choices for Independence (Word format)
• Choices for Independence (Word format)
• Technical Clarifying Amendments (Word format)

See also the special website on the OAA provided by the House Committee on Education and the Workforce found here.

PA Aging Dept Says PACE Plus Medicare "Successfully Implemented"

In a Press Release issued October 2, 2006 and found online here, the Pennsylvania Department of Aging indicates a successful implementation of its "PACE Plus Medicare" program that integrates the new Part "D" prescription drug program into Pennsylvania's "Pharmaceutical Assistance Contract for the Elderly" (PACE) Program for senior citizens.

A description of the unmodified (prior) PACE Program is found here. Earlier this year, on January 26, 2006, Governor Rendell had announced the proposed "PACE Plus Medicare" Program, intended to combine state and federal drug plans, and to cover an additional 120,000 senior citizens. See that press release here.

The most recent Press Release reports on the implementation of the PACE Plus Medicare Program, which provided benefits beginning September 1, 2006:

Secretary of Aging Nora Dowd Eisenhower today called the implementation of the nation’s most comprehensive prescription assistance program for older adults, PACE Plus Medicare, a success. Since benefits began on Sept. 1, the program has reported that all PACE Plus Medicare cardholders have continued to receive their medications without interruption.

“When the federal government launched the Medicare Part D program earlier this year, many consumers were forced to wait days for their prescriptions and several states – including Pennsylvania – had to provide emergency help,” said Secretary Nora Dowd Eisenhower.

“By comparison, the launch of Governor Rendell’s visionary PACE Plus Medicare program has been an overwhelming success; much to the delight of older Pennsylvanians who have directly benefited from our careful planning and work.”

The PACE/PACENET Enrollment Forms, together with program descriptions, are available online from the Department of Aging here.

State Retirement Systems Audits Identify Fiduciary Conflicts

On September 26, 2006, the Pennsylvania Auditor General's Office released performance audit reports regarding the two largest Pennsylvania retirement systems -- the State Employees’ Retirement System (SERS), and the Public School Employees’ Retirement System (PSERS).

The reports are announced in a press release entitled "Auditor General Jack Wagner Urges General Assembly, Governor To Shore Up Two Largest Public Pension Plans", found online here.

In general, Wagner said both funds were managed effectively and professionally. Nevertheless, he identified several areas of administrative weakness that need to be tightened. In particular the audit reports indicate that the respective boards that oversee Pennsylvania's two multibillion-dollar government employees' pension funds should improve how they handle conflicts of interest.

"To ensure that politics plays no role in investment decisions, the boards should specify when elected officials on the boards must abstain from voting on giving business to campaign contributors," Wagner said.

The auditor general also proposes forcing investment advisers to disclose campaign contributions whenever they make board presentations.

"We found instances when there was not sufficient explanation given by board members" about potential conflicts, he said.

While highlighting certain points among the recommendations, Wagner said, “I strongly urge both boards to implement all of our recommendations in order to strengthen the investment operations of both funds”:

• Improvements to how individual board members monitor and report conflicts of interest to improve transparency in governance.
• Formalization of professional training for board members.
• Improvements to the structure of internal audit operations to improve independence.
• Changes to state law and fund policies to ensure that all board members are subject to a modern legal standard for judging their investment decisions.
  

With the adoption of the Pennsylvania Uniform Trust Act described in a prior post here, greater emphasis will be placed on the fiduciary obligations and accountability of private trustees. Many of the same principles apply to the government-operated retirement funds, although the PA UTA is not applicable to these state-chartered plans.

An Associated Press newspaper article, by Mark Scolforo, published on September 27, 2006, in the Centre County Times, and found online here, focused on the audit reports' findings regarding the fiduciary aspects of the state retirement plans.

UPDATE 12/06/06:

The Patriot-News (Harrisburg, PA) published an editorial entitled "PSERS takes a first step to cut travel costs, though bare-bones approach would be better", dated December 5, 2006, focusing on the "fiduciary duties" of the Board members of the Pennsylvania State Employees' Retirement System, while considering certain expenditures made for their travel and education. The Editorial stated, in part:

Board members are responsible for overseeing $60 billion in assets to support the retirement income and health benefits of 455,000 current and former teachers and other school employees. Employee contributions, income from investments and tax dollars are the fund's sources of revenue.

We recognize that to carry out their fiduciary responsibilities properly, pension board members should be knowledgeable about finance and various forms of investment. Since many of PSERS board members do not have a background in these fields, training seminars are a valuable means of learning and keeping up-to-date on pension issues. And we acknowledge that these costs are but a small smart part of the fund's $40 million annual operating budget.

But at a time when school districts and the state are being required to make substantial increases in payments to PSERS to maintain fiduciary standards, those in charge should be leading by example and eliminating unnecessary expenditures wherever possible. Reducing out-of-state travel to the bare minimum would be a more appropriate response by the board.

The Editorial is found here.