Battle Over Fox Chase Expansion Continues

Posted September 2, 2008 by The Legal Intelligencer
Categories: Trusts and Estates

Amy B. Ginensky argued in Philadelphia Court of Common Pleas’ Orphans’ Court Thursday that the Fox Chase neighborhood in Northeast Philadelphia is doubly blessed to have both Fox Chase Cancer Center and Burholme Park within its environs, and a proposed plan to lease part of the 70-acre park to Fox Chase for an expansion of its medical campus will allow the neighborhood to continue to reap its dual blessings.

But during a hearing held Thursday in front of Philadelphia Common Pleas Judge John W. Herron about the city’s plan to sublease part of the park to the cancer center, counsel for a group of taxpayers and neighbors opposing the plan argued that the city undertook a public trust when it agreed to accept the park when Robert W. Ryerss willed his country seat to the city to be used as a public-access park for perpetuity.

Samuel C. Stretton, a West Chester solo practitioner, said that Herron must consider what the park means as a public trust and what it means as a preserved green space in this day and age.

Ginensky is of Pepper Hamilton and represents Fox Chase in Estate of Robert W. Ryerss. Co-counsels from Pepper are Charles S. Marion, Kathleen H. Stephenson and Alison Altman Gross.

The city of Philadelphia and Fox Chase are seeking Herron’s approval of deviation of Ryerss’ will giving 48 acres to the city to be used as a public park and the public trust created when the city accepted Ryerss’ 1895 bequest, expanded the park to 70 acres with a later purchase and maintained the park with city funds.

City Council passed an ordinance March 6 in support of the plan to sublease 19.4 acres of the park to Fox Chase.

Much of the bulk of Thursday’s hearing was taken up with testimony of John K. Binswanger, a Fairmount Park Commissioner and president of the Fairmount Park Conservancy.

Binswanger was the witness of Gerald E. Wallerstein, a senior attorney with the Philadelphia Law Department. Wallerstein’s co-counsels were Robert Aversa and Larry Copeland.

Under questioning, Binswanger noted that most of the area that would be given to Fox Chase is a golf driving range.

Stretton argued in his opening remarks that the current golf driving range will bring the city more money from concessions than from the millions of dollars in proposed, staggered payments from Fox Chase.

According to court papers, Fox Chase could pay up to $12.25 million in development fees, base rent and additional consideration.

Binswanger said that the deal requires Fox Chase to buy 19 substitute acres for another park, but it has been difficult to find another suitable open space in 10th City Council District, which is represented by city Councilman Brian J. O’Neill and is home to Burholme Park.

Binswanger also said that Fox Chase’s original request to obtain 39 acres of the park was unacceptable to the park commissioners.

The city argues in court papers that city residents would benefit from Fox Chase’s ability to “continue to be at the forefront of cancer treatment and research,” from the creation of temporary construction jobs and permanent jobs if Fox Chase’s campus expands, and the expansion of the city’s tax base. The city and Fox Chase say the plan is necessary because Fox Chase is bursting at the seems in its current campus, has nowhere else to expand its campus within its residential neighborhood, and may have to move out of the city if it can’t expand at its current locale.

“It’s a fair deal for the city. It’s a fair deal for Fox Chase … the fact they can keep their complex together … is a very advantageous position for Fox Chase to be in,” Binswanger said after he was allowed by Herron to speak to the reasoning he had for supporting the proposed sublease.

Binswanger was a member along with Deborah Goldstein, the ex officio mayor’s representative to the commission, and Commissioner Robert Nix, of a committee that negotiated with Fox Chase about the proposal ultimately approved by the commission and by City Council.

During Stretton’s cross-examination of Binswanger, Stretton hit home repeatedly on the suggestion that there might be conflicts in Binswanger’s involvement because Binswanger’s brother used to serve on Fox Chase’s board, and the conservancy he leads may receive a significant administrative fee in order to hold funds Fox Chase would give toward Burholme Park.

Binswanger said that he didn’t believe he had a conflict of interest.

Stretton’s 13 clients were given standing to intervene in the case and present their opposition to the plan.

The hearing was expected to continue Friday, Aug. 29, and perhaps into a third day on Wednesday, Sept. 10.

— Amaris Elliott-Engel, staff reporter

Fox Rothschild Acquires Majority of Synnestvedt & Lechner

Posted August 25, 2008 by The Legal Intelligencer
Categories: Firm News

Fox Rothschild said today that it would acquire eight attorneys from intellectual property boutique Synnestvedt & Lechner.

The boutique’s managing partner, Joseph F. Posillico, will join the firm as a partner along with Gary Hecht and Richard Woodbridge. Alexis Barron, Charles Lindrooth and Tara Rachinsky will join as special counsel and Jimmie Johnson and Perry Fonseca will join as associates. Two patent agents, four paralegals, a docket clerk and six assistants will also join.

The firms said they are discussing the possibility of several other Synnestvedt & Lechner attorneys making the move to Fox Rothschild. There are currently 15 attorneys listed on the firm’s Web site, including the eight that are joining Fox Rothschild. Of the attorneys not currently making the move, two are partners, four are of counsel and one is an associate.

The new attorneys will practice for a time out of Synnestvedt’s current offices at 1101 Market St. in Philadelphia and 112 Nassau St. in Princeton but will eventually work out of Fox Rothschild’s offices in those cities.

The boutique has seen some departures of several partners, most recently with the move of partner Joseph D. Rossi to Stradley Ronon Stevens & Young. Four partners left for Saul Ewing a few months ago, and the firm laid off seven support staff not long after.

The addition brings Fox Rothschild’s intellectual property group to 40 attorneys.

“Synnestvedt & Lechner’s practice is particularly strong in the chemical and electrical areas of patent work,” Gerard P. Norton, chairman of Fox Rothschild’s intellectual property department, said in a statement. “This is a good complement to the existing Fox Rothschild practice, which is especially strong in the life-science fields of biotechnology, pharma, and medical devices.”

Read more about the combination in Wednesday’s Legal.

–Gina Passarella, Senior Staff Reporter

There’s Wrong and Then There’s Really, Really Wrong

Posted August 25, 2008 by The Legal Intelligencer
Categories: Appellate Law, Bruce Merenstein

Whenever a trial court ruling is reversed on appeal, the appellate court is effectively telling the trial court, “You got it wrong.” In some cases, however, a district court has to do more than issue a ruling on the merits of a case; it must opine on the likely success of an appeal from its ruling. For example, where a losing party seeks a stay of a district court order, one of the elements of the test for granting or denying the stay is the losing party’s likelihood of success on appeal. In those situations, the trial court is really sticking its neck out: if it opines that its ruling is not likely to be reversed on appeal (as trial courts invariably do), and, in fact, its ruling is reversed on appeal, it was doubly wrong.

Under the Prison Litigation Reform Act, the stakes are even higher, as trial courts sometimes must opine not only that their rulings dismissing a prisoner’s civil rights case are correct but that any appeal from that ruling is “not in good faith” and/or “frivolous.” A reversal in such a case would be the equivalent of the appellate court informing the district court, “You not only got it wrong, but you got it really, really wrong.”

Last week, the 3rd U.S. Circuit Court of Appeals issued just such a decision, in the case of Briscoe v. Klaus. In Briscoe, plaintiff Orland Briscoe brought a pro se civil rights case against several Pennsylvania prison officials. Following discovery, the district court scheduled a final pre-trial conference. The day before the conference, prison officials notified the court that Briscoe refused to be transported to the conference. The court issued an order warning Briscoe that his case could be dismissed for failure to prosecute if he did not show up at the conference, but prison officials informed the court that Briscoe still refused to be transported to the conference. The court dismissed Briscoe’s case, with prejudice, for failure to prosecute. It also stated, in its dismissal order, “Any appeal from this Order will be deemed frivolous, lacking in probable cause and not in good faith.”

Briscoe appealed, and the 3rd Circuit appointed counsel to represent Briscoe on appeal. In its decision last week, the court of appeals held that the district court erred in dismissing Briscoe’s case. Although the court undertook an analysis under its seminal “failure to prosecute” case, Poulis v. State Farm Fire & Casualty Co., its reasoning boiled down to a very simple (and seemingly obvious) proposition: the district court should not have placed blind faith in the prison officials’ assertion that Briscoe refused to be transported to the pre-trial conference. Even aside from the fact that prison officials were defendants in Briscoe’s action, the severe sanction of dismissal for failure to prosecute could not be predicated on a bald assertion of a plaintiff’s dilatoriness. Rather, as the court held, “the District Court must provide the plaintiff with a full and fair opportunity to be heard regarding his failure to comply with the court’s orders” before the court can analyze the Poulis factors and dismiss for failure to prosecute.

Thus, the district court was not only wrong to dismiss Briscoe’s case, but it was further wrong to deem his (ultimately successful) appeal “frivolous, lacking in probable case and not in good faith.” District courts are affirmed on appeal much more often than they are reversed, but on occasion, such as in the Briscoe case, they not only get it wrong, they get it really, really wrong.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP
www.schnader.com

SugarHouse Wins Supreme Court Appeal Over Riparian Lands

Posted August 22, 2008 by The Legal Intelligencer
Categories: Casinos

Just a day after Foxwoods Casino said it would consider moving its site from the Delaware River to another location in the city, SugarHouse Casino won a significant victory in its battled to build along the river.

The Pennsylvania Supreme Court ruled today that the city of Philadelphia had the right to give SugarHouse Casino a license to build on state-owned riparian lands beneath the Delaware River but ruled the subsequent revocation of that license by a new administration was invalid.

The opinion, written by Chief Justice Ronald D. Castille, is a win for HSP Gaming, the parent company of SugarHouse, which has won every case it brought to the Supreme Court.

The city, under the new administration of Mayor Michael Nutter, had changed its position on whether it could issue a license for the use of state-owned lands and argued it shouldn’t have had that right. Alternatively, it argued that even if it had the right, subsequent legislation signed into law in February by Gov. Edward G. Rendell, clarified the issue and made the revocation legit, according to the opinion.

SugarHouse had argued a 1907 law transferred power to control the lands along the Delaware River to the city of Philadelphia and nothing has since changed that ruling.

“In this case, the plain and unambiguous language of Act 321 [of 1907] makes clear that the General Assembly delegated power to the City to issue submerged lands licenses,” Castille wrote. “Moreover, it is equally clear, by application of fundamental precepts of statutory construction, that no intervening act removed that power, nor did the General Assembly’s recent expression during the pendency of this litigation operate to undo the authority the City enjoyed when it acted in November of 2007.”

The court said the Dam Safety Act of 1978, which repealed parts of the 1907 Act 321, did not specifically take away the transference of power to the city. It also found the city doesn’t have unlimited power to revoke licenses that were granted appropriately.

“We recognize that there has been a change in the executive office in Philadelphia; but the view of the current director of commerce for the City does not affect or undermine the legitimate exercise of the authority reposed in the former director of commerce,” Castille said.

He was joined by Justices J. Michael Eakin, Max Baer and Debra Todd. Justices Thomas G. Saylor and Seamus P. McCaffery each wrote their own dissenting opinions. Justice Jane Cutler Greenspan did not participate in the consideration or decision in the case.

Saylor argued in his dissent that the Dam Safety Act repealed the 1907 law that granted licensing power to the state. He also argued the act never intended for the riparian lands to be used for anything other than wharves, piers or similar harbor structures.

McCaffery said in his dissent that only the state could issues licenses to build on riparian lands and that the city’s revocation was appropriate given it never had the right to issue the license in the first place.

For a more detailed analysis of the court’s decision in HSP Gaming v. City of Philadelphia, look to The Legal’s Web site Monday.

~Gina Passarella, Senior Staff Reporter

Fox Rothschild CMO is Leaving for Cozen O’Connor

Posted August 21, 2008 by The Legal Intelligencer
Categories: Firm News

The revolving doors of the Philadelphia marketing community continue, and this time one local firm is borrowing from another.

Fox Rothschild Chief Marketing Officer Jim Staples, who has been with the firm for a little more than three years, is moving a block down Market Street to Cozen O’Connor where he will be the firm’s new CMO.

His last day at Fox Rothschild is Aug. 29. Staples replaces Anne Casey, who was the first to hold the position at Cozen O’Connor and had been there since March 2006. It is unclear why or when Casey left the firm.

Marketing consultant Stacy West Clark called Staples a “true star in this industry.” She said any firm is lucky to have him. Clark characterized Staples as a class act who is consistently happy and optimistic.

“Nothing brings him down,” she said.

Fox Rothschild isn’t the only firm that has seen departures of high-level marketers recently. Wolf Block CMO Julie Amos left this month for the director of marketing position at Kilpatrick Stockton in Atlanta.

Jennifer Smuts left Woodcock Washburn for Delaware-based Connolly Bove Lodge & Hutz where she is the director of marketing. Robin Nolan left her director of marketing role at White & Williams for a job outside of the legal industry.

Read more about this story in Monday’s Legal.

~Gina Passarella, Senior Staff Reporter

Gov. Can’t Reject the Loaf Without Taking Away the Dough

Posted August 20, 2008 by The Legal Intelligencer
Categories: Government

A unanimous six-member Supreme Court ruled today that Gov. Edward G. Rendell may not veto language in an appropriations bill and leave the funding untouched.

The court reversed part of a Commonwealth Court case ruling that Rendell didn’t violate Article IV, Section 16 of the Pennsylvania Constitution when he rejected language defining an appropriation but didn’t disapprove the funding associated with the language.

The appropriation bill at issue in Jubelirer v. Rendell was the General Appropriation Act of 2005, which Rendell approved with seven exceptions. Three of those exceptions were over language in certain sections of the bill and not about the amount of money appropriated. Those sections dealt with Medicaid payments for outpatient services, provisions for closing state police barracks and infrastructure maintenance. The total appropriated under those three sections was a little more than $1 billion.

The Supreme Court, in an opinion by Chief Justice Ronald D. Castille, ruled Rendell couldn’t veto language in the sections regarding Medicaid payments and police barracks but could veto language in the infrastructure section, finding that veto wasn’t solely over language.

“In summary, we hold that Article IV, Section 16 of the Pennsylvania Constitution prohibits the governor from effectively vetoing portions of the language defining an appropriation without disapproving the funds with which the language is associated,” Castille said.

He was joined by Justices Max Baer, Thomas G. Saylor, J. Michael Eakin, Debra Todd and Seamus McCaffery.

Read more about the case in Thursday’s Legal.             

~Gina Passarella, Senior Staff Reporter

Dechert Gets License to Open Beijing Office

Posted August 14, 2008 by The Legal Intelligencer
Categories: Firm News

According to a press release issued late Thursday, Dechert will be opening an office in Beijing. Dechert had opened an office in Hong Kong in January 2008.

The decision to establish on-the-ground resources in Beijing results from our assessment of our clients’ current and potential business interests in mainland China and neighboring countries,” said Dechert Chairman Barton J. Winokur in the press release.

Check back later to The Legal‘s Web site www.thelegalintelligencer.com  for more details.
Hank Grezlak —Editor in Chief