AWBPC News:

SCOTUS update: 

Arbitration and Judicial Restraint: Limits on Class Arbitration

Orientation, Identification & Judicial Restraint; The Scope of Title VII Revisited 

SCOTUS Judicial Restraint Revival: ACA, Masterpiece Cakeshop and the Gerrymander Decisions


We have moved, not far - one door down, only Suite address changes:


              5 Kacey Court Suite 203 


Contact:  Andrewbarbin@awbpclaw.com 


Prospective Clients, please read Homework for Prospective Clients before emailing or calling to schedule flat fee triage review. Email preferred.


Clients: please use text, cell, or email to set up telephone conferences. Regular number still down (migration issues), temporary landline number:


                                     717-590-8643

                

In the News:


Babb Case Amicus Briefs receive Press coverage: 

    To protect against sham peer review, court must uphold verdict
    AAPS Stands Up for Physician Victim of Sham Peer Review

Gregory case covered by Law360 and Legal Intelligencer:

      Law360 and Legal Intelligencer articles



Pending Appeals:


Gregory et al. v. Greguras et al.,  No. 1467 MDA 2015 (September 20, 2018), En banc panel, in case of first impression, reversed  Non-suit and Remanded  for discovery, updated expert reports and new trial where trial court (same judge who was recused in Babb) allowed at trial waiver of attorney client privilege which had been asserted throughout until trial agreeing trial by ambush not permitted. En banc Court also ruled that authentication of decedent's estate calculation notes was sufficient and document was not hearsay in context used.

Petition for Allocatur in the Pa Supreme Court DENIED April 2, 2019 Case goes back for depositions and a retrial.

En Banc Decision and Allocatur Order  


Babb v. Geisinger Clinic, No. 1998-1195 (Centre County Court of Common Pleas, 5.5 Million Dollar Unanimous Jury Verdict) after 20 years, three trips to the Pa Supreme Court and countless depositions and motions, Dr. Babb finally got his day in court. The Jury deliberated for about two hours had jury instructions re-read to them, and then delivered a unanimous verdict that Dr. Babb was not an at will employee, that his employment agreement was materially breached and that he suffered damages in the amount of $5.5 million dollars. Geisinger raised multiple issues and seeks either to throw out all damages or to have a new trial. In our cross appeal we seek prejudgment interest (which would more than double the verdict with interest for the 21 year period from termination to verdict.  Post Verdict Motions denied. Appeal pending, briefed and awaiting argument scheduling order. 


American Medical Society, Pennsylvania Medical Society and American Association of Physicians and Surgeons file Amicus Briefs in Support of Dr. Babb. The two articles above contain links to the Amicus Briefs. I am grateful for their assistance at the end of this 20 year Odyssey through the Courts.

  

ServiceMaster (Rapp) v. CenturyLink, this case involves interpretation of Arbitration provisions in a contract and an attempt to claim a dispute regarding services not in the contract to attempt to trigger a contract scope only arbitration clause. this is the second appeal after a remand for an evidentiary hearing on the arbitration clause interpretation.  PJ Placey filed his Supplemental Opinion, Briefs filed.  Superior Court Argument May 8, 2019 in Williamsport, Pa.  


2019 National Business Institute Teaching Engagements:


January 24, 2019, Ethics of Attorney Services Agreements (NBI National Audio Seminar)

February 7, 2019, Mastering Motions in Limine (National Audio Seminar)

April 23, 2019, Civil Trial From Start to Finish (NBI Bethlehem, Pa)(Opening, Skillful Use of Objections, and Closing)

August 14, 2019, Mini Law School for HR Professionals (NBI Scranton, Pa)(Employment Law Update; Handbooks & Policies; Workplace Behavior and Privacy)

August 27, 2019, Plaintiff's Personal Injury (NBI Scranton, Pa) (Social Media and ESI issues)

November 14, 2019, Legal Research: Data Analytics, Automation, Blockchain 101 (NBI Cherry Hill, NJ)

December 19, 2019, Social Media, Email and Smartphone Evidence (NBI Harrisburg, Pa)(Laying a Foundation; Fit Bit, Wearable Devises and Smart Devices; Effectively Using Expert Witnesses)



AWBPC Practice Summary

Law and politics are the art of the possible, but often depend on the personal. Ethical lawyers do not make up facts (or allow their clients to do so). Lawyers also do not make up the applicable laws, or control their interpretation.


What lawyers actually do is apply their education, experience and creativity to determine options and maximize possible outcomes. Winning, whether it is a simple contract negotiation or full blown litigation, is generally about marshaling and organizing facts, law and theories to move the resolution from one end of the range of possibility/probability to the other.


While some clients, either from the nature of their business or their temperament, may be frequent fliers, the vast majority of clients are first time or infrequent fliers, and few are actually looking forward to the trip.


I am an Attorney and Counselor at Law. Counseling is an important aspect of the job, particularly with regard to litigation which will affect the individual his or her family, business and other relationships beyond the direct participants. Knowing it, and being prepared to meet the challenges, is essential to managing the impact of any litigation.


The most important thing an attorney can do at the outset is to summarize the general principles of law involved, assist the client in distinguishing grain from chaff, while putting together the initial plan that will guide future efforts. The purpose is not merely triage, but also to give the client the peace of mind that comes from knowing "what can be done, will be done."


In the first three decades of practice, I have generally sought out litigation with an unbalanced field, novel issues or a reasonable degree of legal or factual complexity. One simply does not earn a seat in Valhalla doing only "right angle" accident cases. 

With the speed limit (55) receding all too rapidly in my rear view mirror, I now see some merit in balancing my "slay a dragon" quests with lesser but still honorable quests. There will always be something in my Scots/Irish Viking heritage that loves a battle with difficult odds; but not every story needs to be an saga.


For that reason, I am now seeking and accepting more mundane matters that experience allows me to resolve with creativity and dispatch.


All I really require is that the mutually agreed goals for the representation be something I can accept as honorable. I do not judge, but I have a non-delegable duty to be a reasonable steward of whatever gifts I was given and have cultivated. Part of that stewardship obligation is performed in the screening of cases and clients. I am in no sense a gun for hire.


Even as to those clients I decline to represent, I can generally send them in a productive direction. There is a tool for every job, and if I am not the correct tool for a particular job I will generally refer the prospective client to someone who could be. It is my privilege to have developed good relationships with a number of highly ethical and skilled professional who I refer matter to with confidence and without reservation.  

A jack of all trades, can master none. That is particularly true in the practice of law.

In recent years, I have begun to accept some less complicated work closer to home. While I love the adventure involved in traveling to and practicing in the courthouses and communities of this great Commonwealth, circuit riding can take its toll. 

There was a time when I said, "no Criminal, no Divorce, no Bankruptcy; no exceptions." God laughed.

Peculiar circumstances would then draw me into litigation in family law, estates and bankruptcy matters. I remain circumspect, but I no longer have any hard exclusions. It is likely the trend will continue, if only because the cases are more interesting than I had expected, and there is often a call for mediation skills to reach creative resolutions in such cases to avoid litigation which will only serve to dissipate already too scarce assets and add fuel to unproductive fires.


For more than 34 years, I have followed a strict no advertising policy (excluding myself from the yellow page lawyer listings, and leaving off profession or phone number references from sponsor ads in school publications). I find most legal ads distasteful at best, and have no desire to kiss the frogs advertising would inevitably attract in search of the occasional prince or princess who may chance to contact me in that way. Even this, though, seems now an artificial absolute. This website is my compromise.


About 80% of my work comes from referrals from colleagues, former adversaries, and clients. There are also a certain number of Karma or serendipity cases. Chance encounters are not always a matter of chance. Indeed, with Lincoln, I would have to admit that "there is no room for coincidence in my philosophy."


General practice attorneys in solo or small to mid-sized firms can get bogged down in time consuming litigation which can hinder and jeopardize relations in their regular non-litigation practice. If the client is sent out to a larger firm with a dedicated litigation group, there is always a risk the client will not return. Various attorneys across the Commonwealth are aware that I may be contacted for assistance in such litigation matters.


When I am called in for litigation assistance, local counsel remain as active as local counsel and the client desire; and local counsel may rest assured that I have neither intention nor interest in poaching clients. Local small to mid-sized firm attorneys offer a real value to local businesses, particularly by knowing their communities and being able to guide their clients away from conflicts and serving as an honest broker in conflicts between local parties who will have to continue interaction after the present conflict is resolved. Litigation often requires other skills altogether, though the desire to seek a path of reasonable resolution should never be lost - even in the most acrimonious cases.


I am also called in periodically when the town equivalent of "Mr. Potter" from "It's A Wonderful Life" is spinning webs of injustice, and a local attorney (who has no desire for direct involvement) will call and refer a case to me, secure in the knowledge that their name will never be associated with the matter. Those have been some of my favorite matters. Jimmy Stewart remains my favorite actor and role model to some extent..


Current Rates and Payment Matters: 

My current undiscounted rate is $350/hr. I discount 25/hr for cases referred by a colleague or prior client. Veterans and immediate family members receive a $25/hr discount in respect of that service. 


I participate in DCBA and CCBA pro bono programs (which have eligibility screening) as well as Veteran service programs (Wills for Heroes, Stand Down, Bar VA Committee referrals) and will occasionally alter terms as my idiosyncratic view of the balance of my stewardship and equity obligations dictate. However, I have found in recent years that there is real truth in the expression "we esteem little, what we receive cheaply." Those who can pay should pay.  I have become less flexible on rates partly because those who have benefited from such flexibility have often been slower payers and less grateful at the end of the day.  


I note that an hourly rate is only one variable in the cost benefit analysis. "Times What, For What?" remains the key question: how many hours will it take and for what result. 


Practice Focuses: While I might accept any matter if it were sufficiently interesting and I felt sufficiently qualified; my practice is concentrated on matters related to: Contract Disputes; Business litigation; Employment law; Defamation claims; Construction litigation;  Franchisee representation, Business Ownership "divorces;" Non-Compete Disputes, Non-Profit representation; Civil Appeals; and Ethics and Licensing Board matters. A slowly growing portion of my practice includes complex Family Law and Estate Litigation matters regionally and on a selective basis.


Dispute Resolution. While I enjoy litigation, it is the responsibility of every honorable litigator to seek peace on reasonable and acceptable terms. Where both counsel are reasonable and competent, the risk of not settling should eventually exceed the probable benefit of not settling; at that point, the appropriate settlement ranges will overlap and the interests  both parties would then be served by settlement. There are exceptions; but most cases can and should settle once material facts are known and options can be reasonably assessed. It is unwise to settle too early, it is fool-hearty to settle too late. Like most aspects of law, it is more art than science.


The last nickel always costs too much.


Mediation Works. I helped create Bar Association sponsored Alternative Dispute Resolution programs in Montgomery, Dauphin and Cumberland Counties; I teach ADR CLE courses periodically and serve as Mediator/Arbitrator in paid and volunteer settings. I also regularly participate in mediation as an advocate. Even when a case does not settle, mediation can expedite information exchange, target discovery and narrow issues in ways which materially reduced litigation expense. It may not be right for all cases; but it is useful in many, if not most.


Community Activities. All gifts come with responsibilities.  Public service is a privilege, as well as an obligation. That "it is better to give than receive" is a statement of fact as well as morality.  My CV's summarizes not only legal credentials, but also community associations and involvements. I ask "What Kind of World Do I Want," and then I do my best to "Be the Change I Seek."


Buttons on the left side of the web page link to AWBPC related information, my various blogs and CLE materials and video. The pictures are to put a human face and balance the Oz like accolades. If you cut me I bleed.


Our staff and clients are encouraged to do likewise. My clients often find that participation in Community Activities provides an inoculation against the stress of litigation and a counterbalance to the other demands of life. It is one thing to write a check, another to go to the need and meet it  - eye to eye and heart to heart.

Community Involvement is a cheap form of Mental Health Insurance.

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Abraham Lincoln advised people considering the law as a profession as follows:

"There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. 


Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave."



The Road to Here:

Not entirely random snippets of a life path headed in a singular direction, to the place I was meant to be, rather than precisely the place I had sought to be, or expected to be.  A place I would not change for anything....

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AWBPC Page Links - More Detailed information



AWB Blog Links: Another Window Into My World



Sampling of AWB CLE Materials & Video Excerpts

Official AWBPC Client Meeting Scheduling Policy



Law is a profession, one which comes with great power and responsibility.

In this I, strive to preserve the legacy of both my country, and family .... 



Many think law is about Justice, to some extent it is. Others think it is about Knowledge, Experience, and Creativity, also true. 


Yet still, in the end, it is also about Relationships, and Choices, Interests in addition to Rights; in that respect it is about Grace as well as Justice.


If I have have knowledge, experience and the ability to analyze; but not Grace/Love, I remain but a Sounding Gong or Clashing Symbol....



Law is also about a sense of humor and the ability to draw from the great stories of our shared experience when addressing legal issues, this is a favorite when any attorney or witness asks that I or the factfinder "take on faith" that for which "evidence" is not presented.




It is unlikely in the extreme I will die rich in financial terms.  I am attempting in my latter years to be a better steward of my time so that my legitimate financial obligations to family and community can be met with less stress, but a balance sheet will never capture true net worth.  



Those who can pay, make it possible for me to represent those who cannot.  While I will not have "charity" or "redistribution" forced upon me, and I now take better care to avoid being used by those who can and should pay,  I will always balance financial factors with other factors.


While I will seek out some matters for good and honorable fees, the case itself will always have controlling weight in my peculiar scales of justice. I doubt I will ever lose my taste for dragons, windmills or cases of first impression.


If I were called home tomorrow, I could truly say, it has been A Wonderful Life.


Non Nobis Solum


Non Nobis Solum (Not for Ourselves Alone) has been a family motto in word and deed through various roots and branches of our family tree for countless generations.  Matthew Chapter 6, defines our responsibilities, Jimmy Stewart explained that Chapter and the motto in concrete terms which have inspired me since youth:


Sampling of Cases 
Pending in Administrative Proceedings and Trial Courts

The seasons continue to turn and I continue to enjoy scenic vistas as I cross the Commonwealth for matters in Cambria, Centre, Juniata, Lebanon, Lycoming, Luzerne, and Montgomery counties, as well as enjoying a little more time closer to home in Cumberland, Dauphin, York and Lancaster counties. Best part is meeting people from across the Commonwealth in all walks of life: 


Federal

Naples v. USPS, administrative EEO, Workers Comp claims following workplace assault 
Carousel Health v. Agang, breach of contract w/o non-compete visa working nurse S.D. Ohio

Dauphin County

Layton v. Layton, Complex divorce with custody issues and PFA's

Naples v. Matio, civil case following workplace assault

Schroeder v J.C. Blair Hospital and Pinnacle Health, doctor MBA consultant breach and Fraud claims from termination of consulting arrangement regarding setting up rural health facilities.

Estate of Brandt, complex estate with accounting and surcharge issues

Lancaster County

Greiner Industries v. Alltech, Stahlman and Oman, corporate secession non-compete case with fraud and related claims

Juniata County:  

Energex v Good  PO's to my Client Good's Complaint Denied in business easement and boundary dispute.


Team Ag v Hockenberry, design professionals sued my client for fees on chicken farm design services, Counter-claim for lost profits due to unreasonable delay in completion of design and approval process.

Cambria County/PLRB

Stoneycreek Township, FOP Labor issues (PLRB)

Montgomery  County

Miller v Good, claim regarding environmental contamination for loss of property value, after resolution of DEP/EPA issues

Lebanon County

Konevitch v Konevitch, complex matter regarding disputed Marital Settlement Agreement and contempt sanctions raising ability to pay contempt issues

Philadelphia County:

Markley v. D'Angelo et al., PO's denied after transfer to Philly from Dauphin. Claims against attorney and firm regarding funds held for client. 


Pro Bono & Extra-legal Activity Update:  

After previously recognizing my Pro Bono Efforts efforts in their newsletter, I was awarded the Pennsylvania Bar Association 2018 Pro Bono Award. While Wills for Heroes work was singled out, it also related to participation in Mock Trial and other PBA Pro Bono activities during the past three decades. I continue to participate and gain satisfaction from such efforts.


Wills for Heroes events continue. We started at Widner in Dauphin County in February.  Next up is our first W4H event in Perry County April 27, 2019. We are adding Montour County later in the year as well. Additional events are scheduled for Dauphin, Cumberland and Bucks County.


The Stand Down Event for Homeless Vets (Harrisburg Armory), was a great day of service.  DCBA Homeless Legal Clinic April 28, 2019.

I continue to work with Central Penn Legal Services in Dauphin and Cumberland Counties. A Pro Bono Custody conciliation I did on on Valentine's Day led to a Stipulated Custody Order that gives parents of a four month old a chance at civil co-parenting. Things like this make the acrimonious custody matters just a little easier to take. 


I helped judge the PBA Mock Trial Championships  again at the end of March. Law Day engagements are just over the horizon.


I ended a long run (since 2008) as Precinct Judge/inspector of Elections for Upper Allen Precinct 1after others indicated a desire to serve in those positions. This allowed me to return to GOP Committee work, which I had been doing on an appointed basis, except on election days. In 2018, I was elected to a 4 yer term for Upper Allen Precinct 1.

While we lost tough Senate and Governors races last fall against incumbents, but we held off a challenge to my Congressman Scott Perry, who had been  as a result of the eleventh hour redistricting, The race was targeted nationally, the subject of massive out of district financing, and had some of the most scurrilous ads and claims I have seen.  Scott is a great guy - Businessman, Soldier Statesman - and I was proud to row an oar for him in that successful effort. 


Pennsylvania Primaries - May 16, 2019 

As a Committee person I participated in the endorsement endorsement process.  It was fair, transparent and reflected the consensus of those who care the most and work the hardest to secure and elect sound Republicans for important public service positions.  Each was endorsed by a diverse screening committee and each received the required supermajority vote on the first ballot. 


Some of those who sought the endorsement and did receive it are running against the party and draining financial resources needed for success in the fall.   

This years' Party endorsed candidates also have my personal endorsement without reservation, each is singularly qualified for the position sought:

Judge Christylee Peck, for Superior Court Judge

DA Skip Ebert, for re-election as DA

Matt Smith, for Common Pleas Judge

Kirk Sohonage, for Common Pleas Judge

Vince Di Filippo & Gary Eichelberger for re-election as County Commissioners

Kelly Neiderer for County Treasurer

Judge Al Masland for Retention Court of Common Pleas


See my GOPToday blog for my pre-primary candidate assessment blog the week before the primary....

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Any political statements or view on or linked from this page are those of Andrew W. Barbin individually and not those of AWBPC corporately. Content of this page and blogs linked hereto are both business and personal.  All Rights reserved 2019.