00:00 - Welcome to this Pennsylvania

00:01 - Supreme Court's March 20, 23, sitting in Philadelphia.

00:05 - My name is Karl Miers, and I'm co-chair

00:08 - of the appellate practice group at Stevenson Lee.

00:11 - I'm here today with my friend

00:12 - and colleague at the bar, Lisa Greenspan,

00:14 - who is a partner at the Tucker Law Group in Philadelphia.

00:18 - The Pennsylvania Supreme Court is the oldest appellate court

00:20 - in the nation and recently celebrated its 300th

00:24 - anniversary.

00:25 - The court consists of seven justices,

00:27 - and it hears cases involving matters under Pennsylvania law,

00:30 - including criminal, criminal, civil and family law cases.

00:35 - For this, sitting in Philadelphia.

00:36 - The court has a nine has nine total cases.

00:40 - And the arguments you're about to watch,

00:42 - you will see the justices

00:43 - asking questions of the parties, lawyers.

00:46 - The parties have already

00:47 - submitted written briefs containing their arguments.

00:50 - This argument session gives the justices a chance

00:53 - to interrogate the lawyers and test the strengths

00:56 - and weaknesses of the parties arguments.

00:58 - So now let's turn our attention to the first case

01:02 - on today's argument list.

01:04 - LESLIE

01:06 - Thank you, Carl.

01:07 - The first case on today's list is DeNardo versus Koehler.

01:11 - In this case, Donato, an individual

01:14 - with bipolar disorder and schizophrenia killed

01:17 - four individuals during a psychotic episode.

01:20 - He was under the care of a psychiatrist, Dr.

01:23 - Koehler, who was aware of his mental health issues

01:26 - and nonetheless permitted him to go off of his medications.

01:30 - Donato was sent to an inpatient rehab facility

01:34 - where he was consistently deemed homicidal and suicidal.

01:38 - Although Dr.

01:38 - Koehler was supposed to monitor DeNardo and communicate

01:41 - with his providers at the facility,

01:43 - he didn't do so.

01:44 - And within one week of his release from the facility,

01:47 - he concluded that DeNardo was no risk to himself

01:50 - or others and removed him from all medication.

01:54 - It was at that point that the four murders occurred.

01:57 - This case addresses the felony rule,

01:59 - sometimes called the No Felony Conviction Recovery Rule,

02:03 - which bars recovery

02:04 - when a party attempts to profit financially from his own crime.

02:08 - For example,

02:08 - if a person burns down a house and is convicted of arson,

02:12 - they are not then permitted to profit

02:14 - from the insurance proceeds in connection with that fire.

02:17 - The trial court in this case sustained in part and overruled

02:21 - in part the defendant's preliminary objections.

02:24 - Those are supposed to test

02:26 - the sufficiency

02:27 - of the complaint, and that was based on the no felony rule.

02:31 - The Superior Court unanimously held that

02:34 - the entire complaint was barred by the no felony rule.

02:38 - In this appeal, Donato argues that the felony rule

02:41 - should not apply to bar him from recovering

02:44 - for the medical malpractise of Dr.

02:46 - Koehler and the hospital.

02:47 - He claims that he is not seeking to profit from his crimes, but

02:51 - rather seeks damages as a result of the medical providers.

02:55 - GROSS negligence in response.

02:57 - The doctor and hospital argue that the no felony rule bars

03:02 - Donatos recovery because his alleged losses flow

03:06 - directly from four premeditated, intentional murders

03:10 - to which he pled guilty.

03:11 - The law, according to the doctor and the hospital,

03:14 - should not allow a person to recover damages

03:17 - caused by his own criminal act,

03:19 - regardless of how the person characterizes the damages.

03:23 - Let's head into the courtroom and take a listen.

03:26 - The honorable, the chief justice and justices

03:29 - of the Supreme Court of Pennsylvania.

03:34 - Oh, yay, yay, yay.

03:36 - All manner of persons who are still not our partizans

03:39 - who otherwise have business before this court.

03:41 - We now turn to shopkeeper.

03:42 - For God's sake, come alone.

03:44 - And when we need.

03:51 - Morning, everyone.

03:55 - Welcome to the first day of our spring argument

03:58 - session here in beautiful Philadelphia.

04:01 - As you may know, the Pennsylvania Supreme Court

04:04 - is the oldest court in North America.

04:08 - Our roots date back to William Penn's provincial court in 1684,

04:13 - and the Supreme Court was formally established

04:17 - pursuant to the Judiciary Act of 1722.

04:22 - So last year we celebrated our 300th

04:24 - anniversary here in Philadelphia.

04:28 - I thought I'd just mention a few interesting things

04:31 - before we begin our argument.

04:33 - In its earliest years, our court

04:36 - convened in private residences.

04:39 - While the lower courts actually met in ale houses

04:45 - in 1707 here in Philadelphia, the city

04:48 - constructed the townhouse, which was a two story

04:52 - house and market that functioned as an early city hall.

04:56 - The court conducted its business at the townhouse until 1743,

05:02 - when it moved to its own courtroom in the state house.

05:05 - Now Independence Hall beginning construction in 1871.

05:11 - It took 30 years to build this building, Philadelphia

05:15 - City Hall.

05:16 - It was designed in the French Second Empire style

05:20 - by John MacArthur Jr and Thomas Rustic Walter

05:24 - and sitting atop the building, as hopefully you all know,

05:28 - is a bronze statue of William Penn standing 37 feet

05:32 - tall and weighing 27 tons.

05:35 - Mr. Penn's statue faces northeast and points to a spot

05:40 - where he signed a treaty of friendship

05:42 - with the local Native Americans.

05:44 - In 1682

05:46 - until 1908, City Hall was the tallest building

05:50 - in the world, and until 1987,

05:54 - it was the tallest building in Philadelphia.

05:57 - This building has 700 rooms.

05:59 - It houses functioning offices for all three branches

06:03 - of government.

06:04 - And the Supreme Court of Pennsylvania was its

06:07 - first tenant in 1877.

06:11 - At the official opening, reporters deemed this to be

06:15 - the most handsome courtroom in the country

06:18 - and concluded that some of the more fastidious

06:21 - lawyers will hereafter take only Supreme Court cases

06:25 - in order that they may practice in this court palace.

06:30 - So that's quite a challenge.

06:32 - We look forward

06:32 - to hearing from the attorneys who are here today.

06:35 - Before we hear the first case, I would like

06:38 - to remind counsel of a few items of protocol.

06:42 - Appellant's Counsel Please approach

06:44 - the podium when your case is called.

06:46 - I will then give a

06:47 - short summary of the case and then you can begin

06:51 - by stating your name and the party you represent.

06:53 - And please introduce your co-counsel to the court.

06:56 - The justices are familiar with your cases, so I ask that

07:00 - you avoid any

07:02 - unnecessary recitation of facts or procedural history

07:06 - and instead focus on the main issues on which

07:09 - we granted review counsel is welcome to rely

07:12 - on the briefs for any issues that you choose.

07:17 - In cases where there are multiple parties

07:19 - represented by separate counsel or counsel should avoid

07:23 - repeating the same arguments as prior counsel.

07:27 - Please try not to interrupt the justices

07:30 - when they ask you a question, although they may interrupt you,

07:34 - a justice's question is not meant to trip you up.

07:38 - It indicates that there are particular issues

07:41 - which we wish to explore further.

07:44 - While there is no set time limit for argument

07:47 - in our Supreme Court,

07:48 - I will advise counsel when the court is satisfied

07:52 - that all of its questions have been answered.

07:54 - And at that time I ask that you conclude your argument, Mr.

07:58 - Manner. Please call the first case.

08:02 - SEPULVADO for

08:03 - switching over the court representing Mrs.

08:07 - Mercado. Mr. James Beasley Jr.

08:10 - Representing the caller at all. Mr.

08:13 - President,

08:15 - in this case,

08:17 - Sandra Donato, the mother of a confessed, lost

08:21 - and convicted murderer Cosmo Donato and acting on his

08:25 - behalf, sued her son's psychiatrist

08:29 - and the treating hospital and health system, alleging

08:32 - that they provided negligent psychiatric treatment

08:36 - to her son in the months leading up to the murders.

08:40 - We've been asked to determine whether the no felony conviction

08:45 - recovery role precludes recovery in this civil action,

08:49 - including for

08:50 - compensatory damages for the mental and physical pain

08:54 - suffered by her son as a result of the psychiatrist's

08:59 - alleged negligence.

09:02 - May I please the Court?

09:04 - Good morning, Madam Chief Justice.

09:06 - Good morning, fellow justices.

09:07 - My name is Jim Beasley Jr,

09:09 - and I'm here on behalf of the Donatos.

09:11 - And this is my co-counsel, Andrew Martha,

09:13 - also from our firm.

09:17 - And I'm Chief Justice. I'd like to begin

09:20 - by stating that the

09:21 - the summary is accurate, except the unique

09:24 - component of this case is that

09:28 - we're at the pleadings stage and within the pleadings,

09:31 - including attached to the pleadings

09:34 - is replete with

09:36 - not just allegations, but expert support of gross

09:39 - negligence and reckless care by the psychiatrist.

09:43 - And that's what makes this matter different

09:46 - than the other cases upon which

09:49 - either counsel for the defendants

09:51 - or maybe the lower court, for example, has has relied

09:55 - those cases in large measure were either

09:58 - summary judgment or trial court, J.A.

10:02 - V or whatever, and they were all negligence cases.

10:06 - The difference in this case

10:07 - and the reason why this matter should proceed through discovery

10:11 - and the dismissal of the case upon preliminary

10:14 - objections be reversed is because of

10:18 - just the the recklessness

10:21 - and the gross negligence, which we know from the Emerick case

10:25 - when it talks about the gory matter

10:28 - or even the Mental Health Procedures Act says that

10:31 - when there's gross negligence or recklessness

10:34 - and I can read it, but it's at page 1038 of Emmerich,

10:39 - it says when there's gross negligence or recklessness

10:43 - and there was a duty and I'll chat about that in a moment.

10:46 - There was a duty that this

10:49 - hospital had in this case, the psychiatrist in the hospital.

10:54 - Given the remarkably

10:57 - aggressive and homicidal

10:59 - nature of Cosmo Donatos

11:02 - psychosis, paranoid schizophrenia

11:05 - and bipolar disorder,

11:07 - that, of course, the hospital would be responsible.

11:12 - And this is important not just to the damages sought here.

11:16 - And we're talking we're not looking for conviction damages,

11:19 - but also to damage to property or persons of third parties.

11:24 - COUNSEL Yes, sir,

11:25 - if I may, your client pled guilty to the homicides.

11:29 - Why should we not find collateral?

11:31 - Stop him.

11:32 - Well, that's a good question.

11:34 - But the collateral estoppel in the context of a guilty plea,

11:37 - and we'll talk about that in a moment.

11:39 - It only collaterally.

11:40 - It stops him from denying that he pled guilty.

11:45 - That's what those cases are about.

11:46 - I believe that was the Schaffer case.

11:48 - And what that means is and by the way, on the record

11:51 - now to the extent

11:52 - that this matter is permitted to proceed through discovery

11:56 - and is permitted to go to trial,

11:58 - the fact of the guilty plea is going to be part of our case,

12:02 - because what happened was, first of all, we know

12:04 - people plead guilty for a variety of reasons,

12:06 - and this man was faced with a Hobson's choice.

12:09 - But if you look at Dr.

12:11 - Bloomberg's report and Dr.

12:13 - Blumberg was involved with Mr.

12:15 - DeNardo from from really the beginning after I mean, from

12:22 - like November of

12:23 - 2017, he was involved in the criminal component.

12:27 - And when he evaluated him, he realized how absolutely

12:30 - sick and disturbed Mr.

12:31 - Cotton, Mr. DeNardo was.

12:33 - But he was sick and disturbed.

12:35 - But for and this is Dr.

12:36 - Bloomberg's opinion attached to the complaint.

12:39 - But for Dr.

12:40 - COLAs, gross negligence and recklessness,

12:44 - these men wouldn't have been murdered

12:45 - and Cosmo wouldn't have been in a position to make.

12:47 - That Mr. Beazley effect.

12:49 - If I could just ask, wouldn't it?

12:52 - And this is in follow up to justice Daugherty's question

12:56 - wouldn't it be a different case, perhaps a stronger case,

13:01 - if there had not been

13:02 - a criminal conviction, a guilty plea and a conviction

13:06 - if the plea had been, you know, not guilty

13:09 - by reason of insanity, if he had not been actually

13:13 - convicted, wouldn't that be a stronger case?

13:16 - Well, number one, that wasn't offered

13:18 - this man was given a Hobson's choice

13:20 - death

13:20 - or tell us where Jimmy Patrick's body is

13:22 - and we'll give you four consecutive life.

13:24 - So take your pick.

13:25 - So it's a plain Hobson's choice,

13:27 - but it almost doesn't matter because Mr.

13:31 - DeNardo had such a and the complaint identifies

13:35 - that the records identify it.

13:36 - Dr. Bloomberg's report identifies it.

13:38 - I don't need to go through it here.

13:40 - This was not

13:42 - potentially going to happen.

13:44 - This was not.

13:45 - Well, maybe he's going to have a problem like in hope.

13:47 - You know,

13:48 - it wasn't really foreseeable that he was going to

13:50 - jump out of the ambulance and then all of a sudden

13:51 - get his nails done and then go and shoot a police officer.

13:56 - It was absolutely foreseeable that if Mr.

13:59 - DeNardo was not properly medicated and this is in Dr.

14:02 - COLAs records identified by Dr.

14:04 - Blumberg, he could rapidly relapse.

14:07 - And given Mr.

14:08 - DeNardo has such a long history of suicidal ideation,

14:12 - homicidal ideation, violence, beating his father with a brick,

14:16 - hunting, his father with an hour

14:18 - 15, by the way, all happening after a traumatic brain injury.

14:22 - So there's no question that this man has significant

14:24 - mental illness that need it. I'm sorry.

14:27 - I'm not sure I'm following your argument.

14:29 - I don't think we're here to decide

14:31 - whether there was negligence

14:33 - or are you arguing that we should create a gross

14:37 - negligence, recklessness, exception

14:40 - to the wrongful conduct rule or the no felony recovery rule?

14:45 - In essence, yeah.

14:47 - And that's what Emmerich says.

14:48 - And that's what Emmerich says by going

14:49 - with Gloria when there is gross negligence or recklessness

14:53 - that has resulted in this type of outcome.

14:57 - You then have to determine, and it's not the empowered

15:00 - electro thing here.

15:01 - It's really not because

15:03 - first of all,

15:04 - for the no felony conviction recovery rule,

15:06 - we've got to think about why it even came up.

15:09 - It came up when the first case

15:11 - was the one

15:12 - where they

15:12 - burned down their building

15:13 - and then assign the rights of the insurance policy

15:15 - to someone else.

15:16 - So the criminal behavior

15:18 - was trying to get the insurance policy.

15:21 - No felony conviction recovery means you commit a felony like

15:25 - in the whole case that the Labor leader tried to extort the

15:29 - the construction, fill it,

15:31 - and then he wanted to get the money,

15:32 - tried to extort from him

15:34 - or Enright Kravitz where he kills

15:36 - his wife and tries to get an insurance policy.

15:37 - That's what that's for.

15:39 - The crime was committed with the intent of getting that result.

15:42 - Cosmo's crime was committed as bad as it was because he was

15:47 - he was actually getting voices telling him kill or be killed.

15:51 - So his intent of that crime

15:53 - was to actually not be killed, as irrational as that is.

15:56 - And Dr.

15:57 - Blumberg says, But for the remarkable in it,

16:02 - grossly negligent, reckless stopping

16:04 - the medicine of this fellow, he would not have remit

16:08 - remitted into psychosis and the paranoid schizophrenia.

16:12 - So then the question is if if he's the intent

16:17 - of his crime in other words, to save himself in his delusion,

16:22 - the unmedicated delusion

16:24 - caused him to feel it was appropriate to do that.

16:28 - You certainly need to have

16:29 - the gross negligence and willful exception

16:32 - just as the Mental Health Procedures Act does,

16:34 - because that provides guardrails for regular negligence claims.

16:38 - But when we're looking at claims that are and certainly

16:41 - at this stage of the case, that extreme,

16:45 - you cannot effectively immunize

16:50 - a health care provider in this court.

16:51 - In other cases has talked about the bad actors in health care.

16:54 - You can't immunize

16:55 - that type of health care provider

16:57 - because their gross negligence and recklessness

17:00 - allows a psychotic patient to kill someone when it's known

17:03 - that that's what he does. His.

17:04 - Sorry. Can I follow up on that point?

17:06 - And something that you said a little bit earlier

17:08 - and I'm at 30,000 feet here, so help me through

17:13 - what I'm trying to establish in my own mind.

17:17 - What we're talking about here is a rule that is totally

17:21 - of judicial creation based on public policy.

17:25 - My correct yes, that's actually correct.

17:28 - And so the rule has two components to it.

17:33 - Your client can't recover somebody who has a felony

17:37 - conviction cannot recover a benefit or compensation.

17:41 - Let's take it broadly.

17:43 - And in addition to that, we're creating

17:46 - by way of this public policy created by the court,

17:50 - an immunity for the health care provider.

17:54 - And are you.

17:55 - Am I correct in how I'm understanding this.

17:58 - If if this case is not even permitted

18:01 - to proceed through discovery?

18:02 - Yeah, you're you're but you're down here.

18:04 - I mean, I'm I'm trying to figure out how we got here.

18:08 - Okay?

18:08 - Because my understanding

18:10 - of the early case law is your understanding of

18:14 - the rule came into play when the felony, most likely

18:19 - a murder, was committed to get a benefit.

18:24 - There was a causal relationship between the two.

18:27 - At 100%. Right.

18:29 - And that, I understand that, is in keeping

18:32 - with the Slayers Act, which is a statutory policy

18:38 - set by the General Assembly, who usually sets such policies

18:43 - that has had direct benefit derived from the commission

18:46 - of a murder.

18:47 - That's correct. Okay.

18:48 - So what is

18:51 - is there anyone under our existing case

18:56 - law that could recover as a result

19:00 - of the malpractise that you've alleged?

19:04 - Well, let's think about it this way.

19:06 - Now, is there anyone I mean, I'm asking you.

19:09 - I mean, the the families of the decedent cannot recover

19:15 - because they are not known third parties.

19:19 - I would respectfully disagree with that. And I. Tell you.

19:21 - Tell me why.

19:22 - Okay. So when we.

19:23 - Look, you could talk me off my ledge here.

19:25 - Okay.

19:26 - There's not a total immunity.

19:28 - There, isn't it?

19:29 - Well, if.

19:31 - If. Let me see if I understand your question.

19:34 - If you look at the indemnification matter.

19:39 - I'm talking about the families of the victims.

19:43 - Would they have a claim directly against?

19:45 - Do they answer?

19:46 - No, because they were not known third parties.

19:49 - Correct.

19:51 - Except in this particular case.

19:53 - And we have to look at the circumstances of this case.

19:56 - It was not it's not like Tarasov or even Mars, for example,

20:01 - where you're looking at what was readily identifiable.

20:03 - But that's if that's a duty to warrant,

20:05 - this is a duty to treat.

20:07 - And Doctor, Dr.

20:09 - Kolar knew that if

20:12 - Cosmo was not treated.

20:15 - Relapse equals homicide.

20:17 - That's it.

20:18 - So anybody said, you're telling me that

20:20 - under our current jurisprudence,

20:24 - you believe that the families of the victims

20:28 - have a claim against the male

20:33 - practicing physician?

20:36 - There is not a case on point, but if you look at the way

20:38 - that the Mental Health Procedures Act,

20:40 - even though that's not applicable here,

20:41 - it talks about gross negligence and recklessness.

20:44 - I absolutely believe.

20:45 - So then there is any total.

20:46 - Immunity there if.

20:49 - Well, let me put it this way.

20:50 - There's not an immunity in terms of it right now.

20:55 - But if this court decides as part of the public policy

20:59 - component of the no felony conviction rule, that

21:02 - because Mr.

21:03 - Donato, again, as the facts have implied,

21:07 - even though he was not capable of avoiding this

21:10 - because he thought he was going to get killed

21:12 - in this psychotic delusion, if he is precluded as well,

21:16 - then these health care providers are absolutely immune.

21:20 - As you

21:22 - guys to him as to a claim by him.

21:25 - Well, I think at that point, they would

21:26 - the immunity would extend to everybody.

21:28 - Well, let me for one follow up on that, because

21:31 - I'm not sure I follow you there,

21:33 - because the the Tarasov claim remains

21:37 - ostensibly the Tarasov claim remains viable.

21:41 - You know, to the extent there are such people

21:44 - within the ambit of the duty to warn

21:48 - Tarasov, Emerick, Moss, etc.,

21:51 - that's a separate species of claim.

21:54 - And here these individuals were not named.

21:57 - Right.

21:57 - I mean, this is a this is an entirely different species,

22:01 - whether it

22:03 - whether it

22:03 - survives or doesn't, the immunization

22:07 - would only apply as to the felony.

22:11 - Right.

22:12 - As to the in this case, the murderer.

22:14 - If if Mr.

22:16 - Gennaro was attempting to recover

22:20 - damages for what the intent of the criminal act was.

22:24 - He can't get that. We get that.

22:25 - But if Mr.

22:26 - Donato is not allowed to proceed on this claim

22:30 - for just the malpractise damages he suffered

22:34 - and the gross negligence and recklessness,

22:36 - because remember,

22:37 - he went on medicated for about seven months

22:39 - or sub therapeutic for about seven months.

22:41 - So he that's a malpractise claim.

22:43 - Just like in whole,

22:44 - if the fella jumped out of the ambulance and broke his ankle,

22:46 - nobody would say that he couldn't recover that.

22:48 - Well, may I just ask

22:51 - I believe you're trying to draw a distinction in this case

22:56 - between someone who is trying to profit

23:01 - from their crime, which clearly is prohibited

23:05 - under the Slayers Act and under the felony no felony

23:09 - Recovery Act or no felony recovery rule.

23:14 - But it is that your position that here he's Cosmo's

23:19 - mother is not seeking to profit, she's seeking compensation.

23:22 - And if so, does that make a difference?

23:25 - That's exactly right.

23:26 - And it does make a difference because compensation

23:30 - and I understand that

23:31 - the superior court said that it's semantics, but

23:34 - it's not compensation is not synonymous with profit.

23:37 - It's to make you whole. That's correct.

23:39 - Not to give you something over that that's to profit,

23:43 - but to follow up.

23:44 - I'd like to hear his answer, though.

23:46 - First, you.

23:47 - Yeah, that's correct.

23:48 - You were going to say why that makes sense in this case.

23:51 - Well.

23:52 - Again, he's not seeking

23:55 - release for what the purpose of his criminal behavior was.

23:59 - He's not he's seeking he's seeking release,

24:02 - at least discovery, on the relief at this point,

24:05 - because he's he's he has been the victim

24:08 - of egregious gross negligence or reckless malpractise that.

24:12 - Justice Mundy had a question. I'm sorry. Go ahead.

24:14 - I have a change of topic.

24:16 - So if you want to hear about this.

24:18 - Wait. Fleshed that out.

24:19 - He's not seeking.

24:22 - I'm confused.

24:23 - You're saying here's how I see it.

24:25 - We know that benefit.

24:27 - He's not allowed the benefit or profit.

24:29 - But your argument, he's being compensated

24:32 - or seeking compensation.

24:33 - But in reality, he the apparatus to use

24:36 - for this compensation is his mother.

24:39 - So and he's arguing that he needs to be compensated

24:42 - to pay or have the doctors pay him

24:46 - because he killed individuals.

24:49 - Is that I'm trying to flesh out when you say

24:51 - he's not seeking compensation for his acts.

24:55 - Let's let's look at

24:57 - if we go back to the cases that started this

24:59 - no felony conviction role, they sought to recover

25:03 - the target of the criminal act.

25:05 - Cosmo is not seeking to recover the target of his criminal act.

25:09 - Remember, his criminal act was done to save his life.

25:12 - But what Cosmo is seeking are two sets of damages.

25:15 - The first one is his malpractise from Dr.

25:20 - COLAs, continually keeping him sub therapeutic,

25:23 - dissolving into psychosis.

25:24 - The just read Dr. Bloomberg's report.

25:27 - He talks about how he's feeling agitated.

25:29 - He's anxious, he's scared.

25:30 - He's and then he just goes into the psychosis.

25:33 - The second issue in this case

25:35 - is that under the indemnification component,

25:38 - he is going to be subject to judgments. And

25:43 - from a public policy perspective,

25:45 - when you look at the gross negligence and recklessness,

25:48 - it's fair that this case proceeds through discovery

25:51 - so we can do a balancing of act assault in the context

25:55 - of his mindset brought on by this psychosis due to his

25:59 - just I mean they stop the medicine the way he counsel.

26:02 - You're not I don't think you're answering

26:03 - justice Daugherty's question you're going back to the nature

26:07 - of the cause of action

26:08 - and and the question of the line of questioning

26:11 - that the justices are asking you about

26:12 - is your compensation versus profit argument.

26:16 - You're your client.

26:17 - This is the damages your clients are seeking,

26:20 - not the the nature of the negligence is

26:24 - what your client's going to have to pay for purposes

26:28 - of a monetary judgment as a result of the murder.

26:31 - That's the damages that you're seeking.

26:33 - That's the second set of damages.

26:35 - The first set of damages are the

26:37 - are the pain and suffering for the period of malpractise

26:40 - between the time Dr.

26:41 - Koehler allowed him to be sub therapeutic

26:44 - and dissolve into a psychosis, the records reflect

26:46 - and it's in Dr. Bloomberg's report.

26:48 - He's getting agitated, he's getting sick.

26:51 - I want to ask you about this problem

26:53 - versus compensation thing,

26:54 - because you pointed out one of the examples is

26:57 - when someone sets fire to their home,

27:01 - commits an arson,

27:03 - and then recovers or seeks to recover the proceeds

27:06 - from the insurance policy.

27:07 - That's was one of your profit examples.

27:10 - Sure. Okay. How is that profiting?

27:13 - Because that's an exchange.

27:16 - You're taking your home and you're replacing it with cash.

27:20 - There's no profit there.

27:21 - It's your recovering, the loss of the home.

27:23 - It's not a profit.

27:25 - Well, I would disagree with that.

27:27 - Because what do you recover more than your home was worth

27:30 - from an insurance policy? Well.

27:32 - Are you saying that killing your wife by analogy,

27:34 - are you saying killing your wife

27:35 - and getting an insurance policy is not profiting?

27:38 - I didn't give you that example.

27:39 - I'm asking you about the home

27:40 - for burning down the home example.

27:42 - Yeah, but

27:42 - but but they went and burned down the home

27:45 - to get the maximum amount of insurance that they could.

27:47 - But they did it as an arsonist

27:49 - and they had an intent as an arsonist to get the money.

27:51 - And I think that's

27:52 - I think that's an interesting line of argument

27:54 - that you're focusing on, is you're saying that

27:56 - that the no felony conviction or recovery rule applies

28:00 - when someone intends a consequence and then tries

28:03 - to reap that consequence because of the felony conviction.

28:06 - That's where you're saying the principal adds.

28:09 - Is that your argument?

28:10 - And and if so, how do you deal with Albert?

28:13 - Well, Albert is there's

28:15 - that's actually I'm glad you asked that because Albert

28:17 - which which was determined in 2021, was a fellow

28:20 - who was able to trick a pharmacy into giving.

28:25 - And first of all, it's

28:25 - a negligence case to an Albert was it summary judgment

28:29 - so he was able to trick a pharmacy,

28:31 - the father of the owner of the pharmacy

28:34 - to turn over drugs to Zachary by making a fake phone call.

28:39 - And then on the slip it said, do not give to Cody.

28:42 - Well, Cody took it, but his criminal intent

28:47 - and his intent for misleading this person

28:51 - and obtaining a prescription

28:52 - without a prescription, obtaining an opiate

28:55 - without a prescription was the intent of his crime.

28:58 - And then he opens up the fentanyl patch

29:00 - and eats and dies.

29:00 - So he intended that he was not out of his mind.

29:04 - He might have been crazy, which is another issue.

29:08 - As Justice

29:08 - Dockerty points out in his to set that he was craving.

29:11 - But that's different,

29:13 - very, very different than being an unmedicated,

29:16 - psychotic, paranoid schizophrenic

29:19 - who thinks he's got to kill somebody to save himself.

29:22 - Mr. Beazley I'm going to turn it over to Justice Mundy Yeah.

29:25 - My, my question

29:27 - that I wanted to ask has to do with the cause of action

29:29 - when it accrues in this case.

29:31 - And it seems to me that there is a, uh,

29:34 - a true distinction between the person

29:37 - who sets her house on fire to collect insurance proceeds,

29:41 - as opposed to this scenario,

29:46 - arguably because the cause of action

29:47 - for the malpractise

29:49 - arose before the criminal activity occurred.

29:52 - And I just wanted to ask your view on that.

29:54 - I think that the the cause of action for the malpractise came

29:59 - when there was negligence that ended up causing injury.

30:03 - And so the timing of when Cosmos first starts to say,

30:07 - and I believe this was in maybe March or April of 2017

30:12 - when he starts and I don't know the exact date,

30:13 - I apologize

30:14 - when he starts saying I'm

30:16 - anxious, I'm afraid I'm going to go back into the mental home.

30:19 - I don't want to go back there. I'm feeling angry.

30:21 - I'm I'm you know, he's got the physical manifestations

30:25 - of emotional symptoms.

30:26 - So I've you have to meet all three areas.

30:29 - I mean, Dr.

30:30 - Koehler could have been negligent, but,

30:32 - you know, then medicated him and it didn't manifest.

30:34 - But when it starts to manifest,

30:37 - that's that's when it begins.

30:39 - So are you are you articulating

30:41 - two separate causes of action, one for the medical map,

30:44 - the negligence, gross negligence and the malpractise,

30:47 - as opposed to the seeking of recovery

30:50 - for attorney fees, expert fees and things of that nature.

30:53 - Are you saying this is just one

30:57 - cause of action?

30:58 - It's one cause of action.

30:59 - But the indemnification provision

31:01 - and by the way, nobody's seeking

31:03 - attorney's fees or expert fees or anything for the criminal.

31:06 - That's not part of this.

31:08 - They all flow from the allegations

31:11 - and the evidence in the pleadings, including Dr.

31:13 - Bloomberg's report and Dr.

31:15 - Cutler's own piece,

31:16 - that the gross negligence resulted in these damages.

31:19 - And this is how we get around

31:21 - the issues in Vattimo, because remember in Vattimo

31:24 - they admitted in the pleadings that he was actively assault

31:27 - in the.

31:28 - And I'm sorry to interrupt you, Mr.

31:29 - Beazley, and I'm going back to one of my earlier questions.

31:34 - Cosmo pleaded guilty,

31:36 - and I understand

31:37 - you're saying it was a Hobson's choice for him,

31:40 - but he accepted responsibility.

31:43 - He was convicted of a felony.

31:45 - He's a convicted murderer and

31:49 - under parody, delectable under felony recovery rule

31:53 - under the Slayer Act,

31:55 - we don't allow we have never allowed, to my knowledge,

31:59 - or financial recovery to a murderer

32:04 - against a third party such as the hospital

32:07 - and the psychiatrist.

32:09 - So I guess the fact that he took

32:13 - responsibility and pled guilty to me makes a difference.

32:18 - And when I initially ask you, would you have a better argument

32:21 - if he had been found to be mentally ill and not culpable

32:27 - for the actions that for the murders,

32:31 - would that make it a different case?

32:33 - And you said really?

32:35 - No, because he was in a Hobson's choice situation.

32:39 - He had to either plead guilty or he was going to face

32:43 - the death penalty.

32:45 - But the other part of that equation is

32:49 - he was going to have the opportunity, as

32:52 - any criminal defendant does, to go to trial

32:55 - and his attorneys would have the opportunity

32:59 - at trial to persuade the jury that he was not culpable.

33:04 - So that's what I'm struggling with in terms

33:07 - of kind of the public policy of this role.

33:11 - He took responsibility, he was convicted,

33:14 - and now he wants to obtain damages.

33:18 - Well, he was first of all, this court has never had

33:22 - a case of

33:24 - gross, negligent and reckless psychiatric care that,

33:28 - I mean, willfully allowed this fellow

33:31 - who was a known homicidal person to relapse and kill people.

33:35 - So that's never been circumvent that.

33:37 - That's what caused him to plead guilty, is there? No.

33:41 - But that's the difference here.

33:42 - And that's why in Emmerich and I and I hate to say this, but

33:47 - when you look at the gory case,

33:49 - it I mean, it says the court found that a person committing

33:53 - willful misconduct for gross negligence would be liable

33:56 - for that decision or any of its consequences,

33:59 - and that the duty was owed

34:00 - to those who could be foreseeably

34:01 - affected by the wrongful discharge of a patient.

34:04 - And then it goes on with Chief Justice Nixon,

34:06 - and this is in his concurrence in dissent.

34:08 - And Vattimo

34:09 - says, under well-established precedent, if plaintiffs produce

34:12 - a sufficient evidence to demonstrate

34:14 - the mental condition of the patient warranted,

34:16 - the duty asserted in this case is the duty to treat

34:21 - the hospital would clearly be responsible

34:24 - for injury to the person or property of third parties,

34:28 - where such injury from the hospital's

34:30 - negligent failure to meet its responsibility.

34:33 - And so in this situation, again,

34:36 - looking at the circumstances of the case,

34:39 - Cosmo isn't seeking any profit or benefit.

34:44 - He committed these murders because

34:47 - he was being told

34:48 - that if he didn't kill Jimmy

34:50 - Patrick, Jimmy Patrick is going to kill him.

34:52 - He's got voices that Dr.

34:54 - Koehler knew about, that he was hearing voices,

34:57 - and that's what drove this.

34:58 - And so when when the group case

35:02 - cited support by Emmerich says that

35:07 - I'm sorry Chief Justice Nix is

35:10 - recitation and Emmerich says

35:12 - under well-established

35:13 - precedent, if plaintiff produces

35:15 - sufficient evidence to demonstrate

35:16 - the mental condition of the patient, etc., etc.

35:19 - So isn't that saying

35:21 - that dismissal of this matter at the preliminary objection

35:23 - stage would be improper?

35:25 - Well, it depends whether we're looking at this as

35:29 - purely a matter of law that does not require

35:33 - any further litigation to get to the bottom of it.

35:37 - And I think that brings me back to the public policy

35:41 - behind the rules that we've been discussing.

35:44 - And I'd like you to comment on that public policy.

35:47 - And I think it was outlined very in one of the amicus briefs,

35:52 - the Pennsylvania Coalition for Civil Justice Reforms brief,

35:57 - and I'm quoting that brief, refusing to apply the no felony

36:02 - conviction recovery role and allowing Cosmo

36:05 - to recover civil damages under the circumstances

36:08 - of this case, where he pleaded guilty to the murders

36:12 - would shock one sense of justice, lead to public outcry,

36:16 - and make

36:16 - a mockery of the solemnity of his criminal proceedings,

36:20 - his conviction, his life sentence, and of any civil

36:24 - proceeding in which he might obtain such an award.

36:27 - So that's an articulation of the public policy

36:31 - behind these rules that we've been discussing.

36:34 - And I'd like to hear your response to that.

36:37 - Well, there's there's a couple of responses.

36:39 - The first one is because you have the guardrails

36:43 - in place because of gross negligence and recklessness,

36:46 - kind of like the tire case of the Felicia case

36:49 - or even the way that the Mental Health

36:50 - Procedures Act puts a higher standard

36:52 - for voluntary or involuntary commitments,

36:55 - which is analogous here.

36:56 - And I believe that Justice Wecht

36:57 - had made that analogy in the light case

36:59 - when we were talking about

37:00 - a mental health procedures only matter.

37:02 - But then if you look at common law, that's different.

37:04 - So the guardrails are in place for that

37:07 - public policy.

37:08 - I would respectfully submit demands

37:13 - that in care like this,

37:15 - where psychiatrists who are dealing with known

37:19 - homicidal, suicidal, psychotic,

37:22 - paranoid schizophrenic patients

37:26 - have to have, you know, let's think about it like bookends.

37:30 - All right.

37:31 - So there's Cosmo over here who

37:35 - based upon everything in the complaint,

37:36 - it has to be accepted as true, was led to go out of his mind,

37:40 - forgive the colloquial expression

37:42 - by this just reckless psychiatric care.

37:45 - The other book and is okay.

37:47 - Well, what about that Cosmo and what he did was terrible.

37:50 - Nobody's debating anything of that.

37:52 - But we have to look

37:53 - at the other side of the public policy component is

37:57 - psychiatrists are professionals.

38:00 - They have a duty to comply with the standard of care.

38:04 - They have a duty when they are dealing with people

38:08 - such as referenced in Emmerich and such as Cosmo.

38:11 - They have a duty to protect the citizens of this commonwealth.

38:15 - It's not a duty to war.

38:16 - It's a duty to treat.

38:18 - And Doctor Koehler knows he he sure as heck knows

38:22 - that if you don't treat a psychotic patient,

38:24 - they're going to relapse into what

38:26 - their psychosis manifests itself as.

38:28 - And Cosmo has shown over and over to Dr.

38:31 - Koehler when he had to have a security guard at Jefferson.

38:34 - When Cosmo's mom is calling Dr.

38:36 - COLAs and saying they're kicking

38:38 - him out at Jefferson, where can we go?

38:40 - He knows that this patient his is

38:46 - remarkably mentally ill.

38:48 - So there is a countervailing book and public policy

38:53 - that this court cannot immunize

38:55 - doctors like this for allowing

38:59 - this type of time bomb to just go out into society.

39:03 - I mean, he's Dr.

39:04 - Koehler is the only person in Cosmo's care

39:10 - that could actually stop him the but for cause and Dr.

39:14 - Bloomberg's report from becoming a murderer.

39:17 - Can I follow up, counsel?

39:20 - So I take it that

39:24 - that on that prong of you are

39:27 - my microphone.

39:28 - Oh, thank you, Chief.

39:30 - Is that there?

39:31 - No, I think you got to put it by a man.

39:33 - Okay. Okay.

39:34 - I'm not usually accused of not being able to be heard through.

39:39 - Okay.

39:40 - With respect to that

39:41 - prong of your argument, Counsel, I take it that the

39:47 - the availability

39:50 - of the Tarasov claim

39:53 - would not

39:55 - in this case, it would be for the families of the decedents

39:59 - that would would not sufficiently respond

40:03 - to your argument about immunization that you feel

40:07 - that the tort law in Pennsylvania requires

40:11 - that in circumstances like this,

40:14 - your plaintiff have a claim

40:17 - over against the defendant that would not be

40:22 - obliterated by his intervening criminality.

40:25 - So that's my first question.

40:26 - And my second question is to the extent to the extent

40:29 - that's the case, is it important to ask

40:35 - or to have you answer at what point the plaintiff

40:38 - became aware of the defendant's alleged malpractise?

40:42 - Was it, as you were saying, I think, to Justice Mundy,

40:46 - something that was evaluated post murders,

40:50 - or was it something I read in your brief

40:52 - that it vested during the course of treatment?

40:55 - Well, let me answer it this way.

40:57 - It vested during the course of treatment,

40:59 - because I think the knew or should have known component

41:02 - to the extent that a person

41:04 - devolving into psychosis can know or should know

41:06 - when the malpractise was, it certainly was pre murders.

41:11 - It was certainly pre July five.

41:15 - That's I don't know if that's the particular answer.

41:17 - Okay. So he so.

41:18 - But I think you need to do a deposition to find.

41:21 - Okay, so but in that circumstance,

41:22 - the rights vested serially at each and each DPH

41:26 - allocation by Kolar during that what October 2016

41:30 - to July 2017 period or whatever it was serially

41:34 - and then ripened what when he

41:37 - then committed these murders

41:42 - and and

41:45 - let me just stop and let you respond to that,

41:47 - because I guess I'm not clear on the answer to that.

41:50 - You know, forgive me.

41:51 - I'm what here's what I what I believe.

41:54 - I believe that

41:57 - the claims obviously.

42:00 - Give me 30 seconds, Mr.

42:02 - Donatos.

42:05 - Decreasing lithium levels from .04,

42:08 - and I think November 28 down to 0.01,

42:12 - which and they're both way sub therapeutic in I think

42:15 - like January or February of 2017.

42:18 - That's evidence of negligence on record.

42:22 - The particular time when Cosmo started to say,

42:26 - I'm feeling anxious, I'm afraid

42:27 - I'm going to go back to the mental home, that type of stuff.

42:30 - I believe that was March or April.

42:32 - And so I think that when the whole know

42:35 - or should have known thing

42:36 - came up, that probably is when those claims vested

42:40 - for the for the the actual his anxiety and stuff.

42:46 - Okay.

42:46 - So bottom line then is your position is that that

42:50 - that that the

42:52 - the the tort law should not allow

42:57 - the extinguishing

43:01 - of any negligence causation chain

43:04 - by virtue of his supervision in criminal act.

43:07 - With the quality of supervision and supervision

43:09 - and criminal act was 100% foreseeable by Dr.

43:13 - Koehler. Dr. Koehler, as reference in Dr.

43:15 - Bloomberg's report, wrote on July six, the day

43:18 - after he killed Jimmy Patrick and the day before

43:21 - he kills the three other fellows and is in the office

43:23 - searching

43:24 - that the Mexican drug cartel

43:26 - to figure out how to dissolve bodies.

43:28 - When he writes, they're saying

43:30 - let's totally take them off everything.

43:32 - But he's

43:32 - got a high risk of relapse,

43:33 - so we have to be careful to re medicate.

43:36 - Even Dr.

43:36 - Koehler knows that.

43:37 - And relapse equals murder or suicide.

43:40 - So that's it.

43:42 - That's that.

43:44 - That's I mean, it's eminently foreseeable.

43:47 - This isn't

43:47 - this isn't the fellow who jumped out of the ambulance.

43:50 - I mean, this is I mean, he's he's he's creating a monster.

43:54 - Can I ask a follow up

43:55 - question is what would this lawsuit look like

44:01 - if the murders

44:02 - didn't happen?

44:07 - He didn't do anything wrong except.

44:08 - No, I'm I'm no, I'm saying could could your

44:14 - could there be a cause of action

44:16 - for the medical negligence in the absence of the murders?

44:20 - Sure.

44:21 - That's that's the

44:22 - that's what we're talking about with his anxiety and

44:25 - I'm going to go back to the mental home.

44:26 - So it's it's so what we're talking about here

44:28 - is it's not that you can't hold

44:32 - the physicians responsible for the medical medical negligence.

44:37 - We're talking about what kind of damages

44:40 - can be recovered, right?

44:43 - That's correct.

44:44 - Or whether damages can be I'm sorry.

44:47 - Or whether damages can. Be sure.

44:49 - Whether whether the damages flowing from

44:51 - the murder can be recovered.

44:52 - But if I understand what you how you responded to justice

44:55 - work and Justice Mundy is there might be other damages

45:01 - that someone who

45:03 - pleads guilty to a felony or in this case, violent murder

45:08 - could recover from in a pure Malpractise case.

45:12 - But but but we have to insulate it from the actual murder.

45:18 - The the damages flowing from the murder such as. I'd

45:23 - I want to talk about the damages flowing from the murder.

45:25 - I'm talking about the damages flowing from the negligence.

45:27 - And and you had responded to some questions that you said

45:31 - anxiety. You know, other things.

45:34 - I'm trying to see if the murder hadn't happened,

45:38 - at least as I'm understanding how you respond

45:40 - to the questions,

45:40 - your client still has a cause that your client

45:42 - would still have a cause of action.

45:43 - Hypothetically, he has a cause of action again,

45:46 - proving it and all that stuff through discovery for for that.

45:49 - But he also because of the way that Emmerich has written

45:52 - in other cases, should be given the opportunity

45:55 - for an active fault analysis to occur.

45:57 - And if there needs to be a balancing

45:59 - of the imperative to he needs to be given a chance

46:03 - to get this act of fault balance vattimo admitted act of fault.

46:08 - It's denied here and there's an expert report

46:10 - saying that the but for cause of this

46:12 - was the reckless and grossly negligent care.

46:15 - This is not a negligence case.

46:17 - And so if if I may, I believe

46:22 - the justices

46:23 - just gave your argument as to why

46:27 - this issue is not clear and free from the demurrer stage.

46:31 - So I kind of will be looking to Mr.

46:33 - Platt to try to answer why should this

46:37 - matter not go to trial?

46:39 - Since there is question as to the extent of compensation,

46:45 - we're not here.

46:46 - So we all realize to justify the merits of this action,

46:50 - we're at the preliminary objection stage

46:53 - and whether the issue before

46:54 - this court is free and clear from that.

46:56 - And I think my colleagues just convinced me

47:02 - that that burden wasn't met.

47:05 - Are there any other questions from the justices?

47:08 - All right. You make a powerful argument.

47:10 - We'll hear from a police counsel.

47:13 - This is obviously a difficult case. Thank you.

47:16 - Thank you all very much.

47:26 - Morning, Mr.

47:27 - Chief.

47:27 - Justice and honorable justices may have pleased the Court.

47:30 - I am Marcelle Pratt on behalf of the Penn Medicine

47:33 - Appellees, and I am with my co-counsel, Bert Rubin.

47:36 - We ask this Court to affirm the Superior Court's

47:39 - decision that the No Felony Conviction Recovery Rule

47:42 - requires dismissal of this entire case.

47:44 - And we also submit that this court's decision in VATTIMO

47:48 - provides an alternative basis for dismissing

47:50 - the indemnification claim.

47:52 - But I start with providing critical context

47:55 - for the criminal convictions at issue.

47:57 - Mr. Donato pled guilty to four counts of first

48:00 - degree murder and 12 other offenses.

48:03 - His guilty plea was an admission that the facts

48:06 - alleged against him

48:07 - satisfied the elements of each crime he was charged with,

48:10 - including that he intentionally and deliberately murdered

48:14 - four people.

48:15 - He did not pursue an insanity defense.

48:18 - His forensic psychiatrist concluded that he was not

48:21 - legally insane and Mr.

48:23 - Gennaro had the opportunity to plead or to plead not guilty

48:28 - or to tell a criminal jury

48:30 - exactly what he wishes to now tell a civil one, which is that

48:34 - he is, quote, not the true party at fault here, unquote,

48:37 - but he did not do that.

48:39 - Instead, he stood before court.

48:41 - He pled guilty and accepted responsibility for his actions.

48:45 - A court convicted him and sentenced him

48:47 - to four consecutive life sentences.

48:50 - Those criminal convictions were final.

48:52 - They were not appealed or otherwise challenged.

48:55 - But even though he took responsibility for his actions,

48:58 - he now wants to relitigate his guilt in this proceeding.

49:01 - Well, counsel, let me interrupt.

49:03 - It seems to me that that last point is.

49:09 - That's a

49:11 - that's an interesting gloss.

49:13 - But let me let me ask you, because we understand

49:18 - the point about his guilty plea, obviously.

49:21 - Please.

49:23 - What what what do you say to one of the arguments

49:27 - counsel makes to the effect that if we affirm

49:31 - the superior court here, we create a windfall

49:38 - for negligent defendants in tort.

49:42 - In other words, would you agree that

49:46 - that the

49:49 - that the tort law needs needs to,

49:52 - in effect, manufacture an immunity here

49:56 - because of the importance of the criminal convictions?

50:01 - Does that make sense or. It does make sense?

50:04 - I don't think that there needs

50:06 - to be that type of creation in the law.

50:08 - I think what

50:09 - when you look at the doctrines, what they stand for

50:11 - is the idea that the courts don't ran and audience to people

50:14 - who are suing based off of their criminal convictions.

50:18 - So the allegations about negligence

50:20 - and everything else I think in the complaint

50:22 - they don't matter

50:23 - because this rule, the rule that we're talking about,

50:26 - it is a creation of public policy.

50:28 - And what it says is once you've committed a crime

50:31 - and you've been convicted, that crime,

50:33 - you don't get an audience to then sue for damages flowing

50:36 - from your own crime.

50:37 - Mr. Pratt I ask this of Mr.

50:39 - Beazley and I'll ask you,

50:41 - does it make a difference in the case if hypothetically

50:45 - Cosmo had not pled guilty and had not been convicted.

50:50 - If he had not been convicted and we wouldn't be talking

50:52 - about the no felony conviction recovery rule.

50:54 - Well, it would be entirely different since.

50:57 - We might be talking about the Slayer statute. Yes.

51:00 - So if it's not so if he had not been

51:03 - convicted or he not pled guilty, we wouldn't be talking about

51:06 - the no felony conviction recovery rule.

51:07 - But other doctrines could apply such as empire.

51:10 - To look, though That is correct.

51:11 - Counsel If I may, in the words of Chief Justice Emeritus.

51:16 - To me, the sailor, this is a very discrete legal issue.

51:19 - And the question before

51:20 - this court is at the preliminary hearing stage.

51:25 - Did your side prove clear?

51:29 - Clearly that there's

51:31 - no issue or concern or that there's no question.

51:34 - This is not a judgment on the merits.

51:38 - We all agree that he was he pled guilty

51:42 - and that in and of itself,

51:44 - the issue is not collateral estoppel.

51:46 - The issue is the distinction between

51:50 - benefit profit versus compensation

51:53 - and a gross negligence in the psychiatric setting.

51:58 - Discreetly and directly.

52:00 - Share with us why

52:04 - counsel hasn't proven that

52:06 - your side has not been able to prove that that's not an issue

52:10 - and that this case really should go forth.

52:15 - Because the criminal conviction does act as collateral.

52:17 - Example.

52:18 - And we've reached that in our in our brief.

52:21 - And it's the it's the Shafer case.

52:22 - I mean, Shafer said

52:24 - exactly, quote, It is well-established

52:26 - that a criminal conviction collaterally stops a defendant

52:29 - from denying his acts in the subsequent civil trial.

52:32 - That's exactly the case here.

52:33 - And when you look at the history

52:34 - of the no felony conviction recovery rule,

52:37 - there, there are two categories of justifications

52:40 - based on public policy and collateral estoppel

52:43 - on on public policy.

52:44 - It's primarily that courts don't want to condone

52:46 - illegal behavior.

52:48 - And you can imagine a scenario where someone knows

52:51 - in the calculus of committing a crime,

52:53 - if I commit this crime and I'm I plead guilty or I'm convicted,

52:56 - I can recover indemnification and competitor damages

53:00 - for my crime.

53:01 - The court doesn't want that to happen.

53:03 - There's a second consideration at play

53:04 - in this traces through the lineage of the cases

53:07 - underlying, you know, felony conviction recovery rule,

53:09 - where collateral estoppel is a concern.

53:11 - There is a concern that somehow allowing these cases

53:14 - to move forward, even past the initial stage,

53:18 - will somehow call into question or show a lack of confidence

53:21 - in the judicial system.

53:22 - And if I can, I want to talk about

53:24 - the Mineo case that talked about this issue. Exactly.

53:28 - I apologize.

53:29 - I don't mean to interrupt you, but

53:31 - again, you're getting into the larger argument here.

53:35 - I'm asking you

53:37 - share with me why this court should not

53:39 - believe that the lower court erred when it found

53:42 - that the issue was clear and free from doubt.

53:46 - Because even

53:47 - if you accept all of the facts and the complaint is true,

53:51 - Mr. Donato cannot recover under the No felony conviction

53:53 - recovery rule.

53:54 - And that is because in the complaint,

53:56 - all of his losses that he's he's articulating,

53:59 - they all flow from criminal acts,

54:01 - the same acts that he was convicted of.

54:03 - So that's saying, as a matter of law,

54:05 - not as a matter of facts that have to be explored

54:08 - through discovery.

54:09 - Yes, your honor. But we're in.

54:12 - Is there any case law that this court has indicate it, that it

54:18 - that in this

54:19 - a gross negligence of a mental health provider,

54:23 - that the felony conviction rule applies?

54:27 - The felony conviction rule, which is just as Danny,

54:29 - you brought forth, is judicially created

54:32 - and the court decided to create policy

54:35 - that no one should benefit from their crime, a.k.a.

54:38 - set my building on fire, collect the insurance,

54:41 - kill my mother and write a book about it.

54:43 - That's class sick. That's what we understand.

54:46 - And that's what the case law has indicated.

54:48 - I've yet to determine or find a case

54:51 - that has indicated that the question of benefit

54:55 - and profit

54:56 - does not equal compensation or does equal compensation,

54:59 - such that it should rise, that it's so clear

55:02 - and free from doubt

55:04 - that a preliminary objection at the demur stage

55:07 - should be sustained.

55:08 - So share with us what is clear and free from that that.

55:14 - Profit and benefit equals compensation

55:18 - in the Mental Health Procedures Act or dealing with

55:21 - the mental health. Here's why.

55:23 - Because even if you accept all of the facts

55:27 - in the complaint as true, all of the losses that Mr.

55:30 - Donato is seeking to recover for

55:32 - they flow from his criminal convictions.

55:34 - And when you have that

55:36 - end of story, the No felony conviction recovery rule

55:38 - applies.

55:39 - Now, as far as the distinction between profit and benefit,

55:42 - under this rule, this court has never explored it

55:44 - in the context of this rule.

55:46 - But I do want to talk about Albert

55:48 - only decided 14 months ago.

55:50 - It's empowered delicto, but it bears a relationship

55:52 - to this rule because they stem from the same principle,

55:55 - the same principle that this court won't lend

55:56 - its aid to a person seeking to recover based on an immoral act.

56:00 - And in Albert, this court was concerned compensation.

56:04 - This court, the majority, said

56:07 - that there was a concern that wrongdoers

56:09 - could receive, quote, compensation for

56:12 - and potentially profit from their illegal act.

56:13 - So the concern was compensation.

56:16 - And it goes back to the underlying

56:17 - public policy argument,

56:19 - which is that even if you allow compensation,

56:22 - you are still going to run the risk of potentially condoning

56:25 - criminal behavior.

56:27 - And that is and that and that is how that.

56:28 - Case is distinguishable, because it's dealing

56:31 - with the pharmacy and not the issue of removing

56:38 - psyche as schizophrenic medication

56:40 - and lithium from the defendant.

56:44 - So we're looking at an individual who was taking

56:47 - schizophrenic medication, what's it called, in Viera,

56:50 - as well as lithium.

56:52 - And you see that that completely stops

56:55 - or the doctor releases them and then ultimately reduces

56:59 - the medication and this heinous conduct results

57:03 - that is quite distinguished, distinguishable from Albert.

57:07 - Again, I'm making this very myopic

57:10 - because it's a discrete legal issue

57:11 - within the parameters to the facts of this case.

57:14 - Share with us

57:15 - what's your argument that it is so clear and free from doubt

57:20 - that this case

57:22 - should be decided and sustained on the.

57:24 - Matter, because it is clear and free from doubt that the losses

57:28 - that he seeks to recover for flow from his criminal acts.

57:31 - And I and just and going back to Albert, the reason

57:35 - why Albert is important is because it articulated again

57:37 - some of the same concerns that underlie

57:40 - the no felony conviction recovery rule.

57:42 - There's it's

57:43 - not only just about this idea

57:45 - that you don't want to encourage people

57:46 - to to seek losses

57:48 - flowing from criminal from their criminal behavior.

57:50 - But it also is about undermining

57:51 - the integrity of the justice system.

57:53 - And where I was going

57:54 - with my prior comments was that when you look at Mineo,

57:58 - which we've talked about at length today,

58:00 - the Court said the superior court said

58:01 - some really interesting things

58:02 - about allowing these types of cases

58:04 - to go forward when you have a conviction.

58:06 - And the court said, quote,

58:08 - it would it would, quote, destroy

58:10 - the confidence of the public in the efficiency of the courts.

58:12 - It would stir up litigation that would reopen trade issues.

58:15 - And the court also said, quote,

58:17 - It would convince the public that the courts themselves

58:20 - have no confidence in the judicial process.

58:23 - And that and that is exactly the public policy rationale,

58:26 - that that is the reason why Mr.

58:29 - Donato should not have a claim that goes forward at all.

58:31 - And I do want to address this issue

58:33 - about when the claim vested,

58:34 - because there is no separate

58:36 - claim that was articulated here for

58:38 - damages that have nothing to do with their criminal behavior.

58:42 - They could have pled that.

58:43 - But if you read them in the complaint,

58:44 - this is all about recovering indemnification

58:47 - for the wrongful death things

58:48 - which are directly tied, the criminal behavior

58:51 - and the compensatory damages flowing from Mr.

58:55 - Nardo.

58:55 - Severe emotional distress of having to live

58:58 - with being a murderer for the rest of his life.

59:00 - That's what this case is about.

59:01 - There was never a separate set of category,

59:03 - a separate category of damages about negligence that occurred

59:07 - before he created the murder.

59:08 - So I don't want us to run down this run the risk of counsel.

59:11 - Are you aware of anything that would have barred

59:17 - a plaintiff

59:18 - from seeking those types of damages,

59:21 - from trying to articulate, you know,

59:22 - if the negligence occurred

59:24 - when he was dismissed in this matter occasion was

59:27 - was was turned off or titrated or whatever.

59:33 - Are you aware of anything that would prevent it

59:35 - from holding the health care provider responsible

59:39 - for that negligence and articulating some category

59:42 - of damages divorced from the felony?

59:46 - It would have been the no felony conviction recovery rule.

59:48 - And I you know, sitting here today,

59:50 - I assume that he could have pled that type of claim.

59:52 - But the fact is, is that he he did not counsel counsel.

59:57 - 465 What is the logic in not extending

01:00 - 06.102 recovery to foreseeable acts of the court season?

01:00 - 09.539 That's where I'm really hung up on this. And

01:00 - 11.874 two things.

01:00 - 14.544 The players Act has nothing to do with this case.

01:00 - 15.545 Correct.

01:00 - 17.780 But on the policy underlying this law.

01:00 - 18.281 Exactly.

01:00 - 21.517 This act itself has nothing to do with this case.

01:00 - 25.722 These players act, the policy set by the General Assembly

01:00 - 29.592 is much narrower than what we're talking about here

01:00 - 33.463 in terms of this judicially created immunity, correct?

01:00 - 35.264 Much narrower.

01:00 - 36.966 Yes. The application of the Players Act.

01:00 - 39.268 But I do want to say in the Drumheller case,

01:00 - 41.771 the court said that the Slayers Act operates to bar

01:00 - 43.306 anything that works to the advantage

01:00 - 45.074 or gain of a recipient.

01:00 - 46.009 Yeah, but

01:00 - 48.311 once again, back to the Slayer staff.

01:00 - 50.446 There are no Slayers Act cases that

01:00 - 53.549 remotely relate to the situation we're talking about.

01:00 - 55.918 And I know that to be true. Or you would have pleaded.

01:00 - 59.022 Slater's act bars this recovery and we wouldn't be here.

01:00 - 00.323 Right? That's correct.

01:01 - 02.325 We do not say Slayers act bars recovery.

01:01 - 04.060 It's the policy behind it.

01:01 - 09.232 And you you consistently say that his damage

01:01 - 13.369 is flow from the deaths of the victims.

01:01 - 19.175 He says his damages flow from the negligence of your client.

01:01 - 21.010 There are, in

01:01 - 24.414 fact, two sides to this equation.

01:01 - 28.151 And by precluding recovery in this case,

01:01 - 31.421 we are, in fact, immunizing your client for conduct.

01:01 - 33.856 That, in the words of the plaintiff,

01:01 - 37.293 was foreseeable as a result of the malpractise.

01:01 - 40.296 And I'm just wondering, where do we get off doing that?

01:01 - 44.267 Mean where do we how do we how do we create that kind

01:01 - 45.134 of immunity?

01:01 - 47.303 Well, I think this might have gone to justice.

01:01 - 49.772 Last question to the appellant earlier, but

01:01 - 52.275 you have the allegations

01:01 - 54.310 of negligence leading up to the murders.

01:01 - 55.845 But then we have this

01:01 - 57.246 these moments in time

01:01 - 58.514 where Cosmo DiNardo

01:01 - 00.550 has admitted that he intentionally

01:02 - 02.885 and deliberately committed those murders.

01:02 - 05.621 So those two things go hand in hand.

01:02 - 07.523 And, you know, we're at the

01:02 - 10.393 we're at the preliminary objection stage.

01:02 - 13.096 You can have those two things coexist.

01:02 - 14.197 He could

01:02 - 15.765 have committed those murders

01:02 - 17.934 and you would say superseding chis and

01:02 - 19.202 something of that nature.

01:02 - 21.971 But on the other hand,

01:02 - 25.708 that consequence was a result

01:02 - 29.812 of your client's malpractise, according to the plaintiff's.

01:02 - 35.051 So, I mean, I'm just I'm I'm skeptical

01:02 - 39.255 of the graph of the immunity.

01:02 - 42.658 That we've created in this case.

01:02 - 48.030 And I'm skeptical of the breadth of the wrongful conduct rule

01:02 - 51.033 that we have created far afield.

01:02 - 55.404 From what the General Assembly has said, the policy

01:02 - 58.641 of this Commonwealth is.

01:02 - 02.178 In this case, Cosmo DiNardo is collaterally stopped from saying

01:03 - 05.548 that he is not at fault for committing those murders.

01:03 - 08.684 And that is the and that is the end of that particular issue.

01:03 - 11.387 If you if you accept that the

01:03 - 17.460 wrongful conduct rule or whatever nomenclature

01:03 - 19.562 you attach to it

01:03 - 23.266 is a sound public policy

01:03 - 26.169 when it immunizes

01:03 - 30.506 the conduct of a tort feser.

01:03 - 34.210 And I would not but I also would not refer to it

01:03 - 37.747 as as an immunity, because it's not an immunity.

01:03 - 40.449 When we look at the reason for the rule

01:03 - 42.885 and this came up in Albert the last paragraph,

01:03 - 46.455 the purpose of the rule was not to punish the plaintiff

01:03 - 48.724 or to reward the defendant.

01:03 - 51.394 It was to make sure that integrity was maintained

01:03 - 53.362 in the court system. So it's not an immunity.

01:03 - 55.164 The idea is that the court is saying

01:03 - 58.034 we are not going to entertain a claim based on damages

01:03 - 59.502 that flow from criminal behavior.

01:03 - 00.570 Could I just.

01:04 - 02.772 Excuse me, Mr. Pratt.

01:04 - 05.708 Could I follow up a minute on what Justice Donahue

01:04 - 08.778 and I believe Justice Work had said what it said earlier.

01:04 - 12.481 When we are talking about damages that flow

01:04 - 15.685 from the alleged malpractise of the psychiatrist,

01:04 - 18.955 there could be recoverable damages.

01:04 - 25.795 In a hypothetical, such as the patient then harmed himself.

01:04 - 29.799 He didn't commit suicide, but he hurt himself or he drive.

01:04 - 33.302 He drove his truck into a wall and was injured.

01:04 - 36.806 Those damages, it seems to me,

01:04 - 41.110 would not be precluded in a negligence action.

01:04 - 45.982 However, whether we accept it or not,

01:04 - 51.254 our courts have established the no felony recovery rule.

01:04 - 55.291 So once that individual, instead of harming himself,

01:04 - 00.162 harms others and doesn't plead not guilty

01:05 - 04.133 and go to trial and argue insanity, but rather pleads

01:05 - 07.870 guilty and has a conviction, it seems to me that that runs

01:05 - 11.207 right up against the no felony recovery rule.

01:05 - 13.609 I agree, Your Honor.

01:05 - 14.944 And again, that would be

01:05 - 18.481 the claim, not based on damages flowing from criminal behavior.

01:05 - 21.651 It's not touched by the rulings in this case.

01:05 - 24.987 So that that that part of the law remains untouched.

01:05 - 28.024 But I do want to go back and it just came to me to justice

01:05 - 31.027 Daugherty's question about dismissing cases at the

01:05 - 32.561 at the preliminary stage.

01:05 - 35.998 And while it hasn't been done, while this court hasn't affirmed

01:05 - 39.035 that type of ruling yet, if you look at courts

01:05 - 40.169 across the country,

01:05 - 42.939 they've applied their version of the wrongful conduct rule

01:05 - 45.641 in the same exact way that we're advocating for here.

01:05 - 47.910 They said no compensatory, no profits.

01:05 - 50.012 It doesn't matter. Same public policy argument.

01:05 - 52.715 But those some of those courts have dismissed cases

01:05 - 54.817 at the motion to dismiss or claim interstate.

01:05 - 56.085 You can look at Cole,

01:05 - 57.853 which is the Supreme Court of Ohio case,

01:05 - 59.588 and that case is the seminal case

01:05 - 00.222 on this issue

01:06 - 02.992 that involved a case where someone was convicted of murder

01:06 - 05.261 and tried to get the same types of damages

01:06 - 07.063 here, indemnity and compensation.

01:06 - 09.265 It's probably the most widely cited case in this issue

01:06 - 12.034 that was at the motion design stage glazier as well.

01:06 - 13.235 That's another case.

01:06 - 14.670 Also, Greenwald is a more

01:06 - 16.706 recent Supreme Court of Connecticut case

01:06 - 20.042 that involved a person who possessed child pornography

01:06 - 22.311 trying to sue a psychiatrist for not preventing him

01:06 - 25.281 from doing that same exact policy rationale.

01:06 - 28.517 And just as this court looked at other jurisdictions

01:06 - 30.519 and Albert, we would ask that you do the same here.

01:06 - 31.520 Well, an if

01:06 - 34.690 if and it's a big if you've heard that's a very

01:06 - 36.359 thought of our justices here.

01:06 - 40.062 But if we accept your argument, then really

01:06 - 43.466 it doesn't make a difference what stage the litigation sat,

01:06 - 45.634 because it's not a matter of fleshing out

01:06 - 48.671 further facts, disputed facts and discovery.

01:06 - 50.773 It's a matter of law.

01:06 - 52.208 I agree it is a matter of law.

01:06 - 53.709 And you can accept all the facts

01:06 - 56.779 and the complaint as true and a result remains the same.

01:06 - 57.513 Counsel

01:06 - 00.016 right here.

01:07 - 02.018 Could you refresh my recollection for me?

01:07 - 05.488 My recollection is that in your brief,

01:07 - 08.357 you argue that the victims

01:07 - 12.128 of the crimes, the four people who were killed,

01:07 - 16.165 do not have a claim against your client.

01:07 - 18.234 Correct. I think yes.

01:07 - 21.237 I think the argument was, one, this case does not implicate

01:07 - 23.472 duties to third parties.

01:07 - 27.309 And also your statement was, they not have a cause of action

01:07 - 28.377 against your client.

01:07 - 28.844 They do not

01:07 - 31.347 because the facts as known do not satisfy

01:07 - 32.982 the elements of Emmerich.

01:07 - 33.883 There's no allegation

01:07 - 35.951 that there was a specific and immediate threat

01:07 - 37.820 or that someone was specifically.

01:07 - 42.124 And said the fact it was then it's then there is a very

01:07 - 45.761 broad immunity for this tort, assuming there is.

01:07 - 49.732 Once again, saying we're at the preliminary objection phase.

01:07 - 52.835 There is a a blanket immunity.

01:07 - 53.969 I would disagree

01:07 - 54.403 because you could

01:07 - 55.771 then you have a different scenario

01:07 - 57.740 where some of the same facts are true.

01:07 - 00.476 But perhaps the threat was specific and immediate

01:08 - 02.478 and the victim was specifically identifiable,

01:08 - 05.081 and then you would fit within the court this case.

01:08 - 06.315 That's not this.

01:08 - 09.819 This is I mean, under the facts in this case, there is a

01:08 - 14.023 broad immunity for the alleged tort feature

01:08 - 16.659 across the board.

01:08 - 17.860 I disagree.

01:08 - 19.962 I think the facts of this case

01:08 - 24.233 don't satisfy the exception.

01:08 - 26.535 But I think if you affirm this, if you affirm the ruling

01:08 - 30.206 that we're asking you to affirm, it will not disturb that claim

01:08 - 31.574 under Emmerich.

01:08 - 32.842 The other types of cases.

01:08 - 33.409 Argue that

01:08 - 35.711 because if that were not the case,

01:08 - 38.080 there would be an indemnification claim here.

01:08 - 39.281 Correct.

01:08 - 43.519 I mean, if there was a liability that flowed

01:08 - 47.456 from your client to the victims,

01:08 - 50.926 then the plaintiff would have

01:08 - 55.231 a claim over for damages incurred as a result that he's

01:08 - 58.167 being held responsible for that required by your client.

01:08 - 01.403 Well, I would also say that the estates

01:09 - 04.573 of the victims have also filed cases against Mr.

01:09 - 05.841 Donato,

01:09 - 07.209 his cousin, Sean Kraft,

01:09 - 09.345 who participated in three of the murders.

01:09 - 11.614 And this is an artist, parents and their businesses.

01:09 - 13.916 They have not sued the Penn Medicine.

01:09 - 15.151 But that's that's a bit.

01:09 - 17.753 But if I could if I could inquire

01:09 - 22.658 that you don't

01:09 - 25.728 I take it that that you don't

01:09 - 29.031 need to

01:09 - 30.466 request

01:09 - 37.773 a carve out from terrorists off liability here?

01:09 - 38.807 That's not this case.

01:09 - 42.645 In other words, I take it that that you're arguing

01:09 - 46.182 for a bright line

01:09 - 49.118 and would be prepared to concede that the

01:09 - 53.923 that the tort law is divesting, Donato

01:09 - 57.026 of a hypothetically viable

01:09 - 01.096 tort claim by virtue of a policy in the tort law

01:10 - 04.600 that bars felony conviction, the felony

01:10 - 07.303 the felony conviction recovery rule.

01:10 - 12.208 And that that that's as far as you would need to go.

01:10 - 17.346 You you because in response to these last couple of questions,

01:10 - 21.116 it seemed like you're reaching into the Emmerich Moore's

01:10 - 22.351 Tarasov territory.

01:10 - 25.788 And I take it that that is not at all necessary.

01:10 - 26.922 Perhaps you

01:10 - 30.159 perhaps you're saying that you represent your client, but

01:10 - 33.862 in other words, hypothetically,

01:10 - 36.665 the families of these victims

01:10 - 39.101 could maintain terrorist off

01:10 - 44.240 lawsuit against your client, even in this scenario

01:10 - 48.310 where we affirmed the superior court, the idea being

01:10 - 52.114 this is more of an Albert case than a Moores or Emmerich case.

01:10 - 55.184 Or am I? Am I mistaken?

01:10 - 55.784 That is correct.

01:10 - 58.954 We do not need this court to go as far as disturbing

01:10 - 02.191 Emmerich or any type of terrorist off claim.

01:11 - 04.693 That is, you don't need to do that to affirm the center court.

01:11 - 05.794 And just one more thing.

01:11 - 07.930 Just just to nail this down,

01:11 - 12.935 that distilled to its essence,

01:11 - 17.473 you do frankly maintain that

01:11 - 21.343 that you think Pennsylvania tort law does

01:11 - 26.649 or should affirmatively divest the plaintiff in a scenario

01:11 - 29.885 like this of a hypothetically available tort claim?

01:11 - 31.920 Absolutely.

01:11 - 34.990 When someone pleads guilty or is convicted of murder

01:11 - 37.393 in the first degree and other serious crimes,

01:11 - 40.796 they should be barred from seeking recovery of any loss

01:11 - 42.431 flowing from those criminal acts.

01:11 - 44.033 That should be the law here, just like it's

01:11 - 46.201 the law in other places across the country.

01:11 - 48.937 You, Mr. Pratt, are there any other questions?

01:11 - 52.741 Sure.

01:11 - 57.413 How to kill himself by the malpractise action.

01:11 - 01.216 By. I would I would say the no felony

01:12 - 02.951 conviction recovery rule would not apply.

01:12 - 06.522 To the crime.

01:12 - 08.657 A suicide crime.

01:12 - 10.192 I don't think you can prosecute

01:12 - 12.294 someone who's committed suicide.

01:12 - 13.696 All right. Thank you, Mr. Pratt.

01:12 - 16.465 Mr. Beazley, those were both outstanding arguments.

01:12 - 19.702 Our next case is Pennsylvania State

01:12 - 22.571 Police versus the American Civil Liberties Union.

01:12 - 26.241 This is a right to know law case, which is Pennsylvania's

01:12 - 28.677 version of the Freedom of Information.

01:12 - 31.880 The ACLU submitted a right to know request

01:12 - 33.916 to the Pennsylvania State Police

01:12 - 36.552 asking for a copy of the police's policy

01:12 - 40.456 on the use of social media monitoring software.

01:12 - 43.559 The police produced the copy of the policy,

01:12 - 46.595 but some of the information in the policy was redacted

01:12 - 48.130 or covered up.

01:12 - 49.398 The police said those items

01:12 - 51.767 had to be redacted because their disclosure

01:12 - 54.036 would create a public safety danger,

01:12 - 55.137 which is one of the exceptions

01:12 - 57.139 from disclosure under the right to know law.

01:12 - 01.777 The ACLU appealed that decision to the Office of Open Records,

01:13 - 04.213 which decides right to no law disputes

01:13 - 07.683 the or took evidence from the parties and consider

01:13 - 08.951 that evidence.

01:13 - 11.587 The order decided, however, that there was no public

01:13 - 12.788 policy threat,

01:13 - 13.989 and so it ordered the state

01:13 - 17.259 police to disclose the redacted items in the policy.

01:13 - 20.796 The police appeal appealed to the Commonwealth's court.

01:13 - 23.465 After several appeals, the Commonwealth's court

01:13 - 26.568 decided that the case had to be sent back to the o.R.

01:13 - 29.772 For it to take additional facts and to hold

01:13 - 30.873 an evidentiary hearing.

01:13 - 35.077 The ACLU, however, asked the Supreme Court to take the case

01:13 - 37.780 to challenge that decision, to send the case back,

01:13 - 40.282 and the Supreme Court agreed to take the case.

01:13 - 44.653 In its brief, the ACLU contends that the Commonwealth Court

01:13 - 47.022 should not have sent the case back the O.R..

01:13 - 48.323 It argues

01:13 - 48.791 the police

01:13 - 50.592 had its chance to prove its case

01:13 - 52.694 the first time around in the O.R.

01:13 - 55.364 and should not get another chance to do so.

01:13 - 56.932 The police did not prove the public

01:13 - 58.400 safety risk the first time,

01:13 - 00.135 and that should be the end of the matter.

01:14 - 02.204 So according to the ACLU,

01:14 - 05.040 the police should be ordered to disclose the redacted items.

01:14 - 08.110 The police predictably see the matter differently.

01:14 - 09.378 They argue

01:14 - 11.914 that the Commonwealth's court acted within its discretion.

01:14 - 15.184 The police also point out to the point to the fact

01:14 - 18.754 the Supreme Court has encouraged courts to develop

01:14 - 21.857 additional facts through remands to the O.R.

01:14 - 25.661 and that was what was done here by the Commonwealth's court.

01:14 - 27.196 And since this case involves

01:14 - 30.532 involved public policy I'm sorry, public safety concerns.

01:14 - 33.869 The police argue it was proper for the Commonwealth Court

01:14 - 37.139 to be cautious and allow for further factual development.

01:14 - 38.307 So now

01:14 - 40.409 let's head into the courtroom and see the arguments.

01:14 - 44.179 In this case filed under the right to no law

01:14 - 46.682 we granted allowance of appeal to determine

01:14 - 51.019 whether the Commonwealth Court abused its discretion by suicide

01:14 - 54.256 font, remanding the matter for further fact finding.

01:14 - 57.426 Where the parties did not seek a remand.

01:14 - 00.562 And where the government agency opposing disclosure

01:15 - 04.433 of the requested record here the Pennsylvania State Police

01:15 - 08.203 failed to demonstrate that the requested information

01:15 - 12.941 was exempt from disclosure under the public safety exception.

01:15 - 14.743 Thank you, Madam Chief.

01:15 - 17.045 Justice may please. The Court My name is Mark to.

01:15 - 19.781 I represent the ACLU of Pennsylvania,

01:15 - 21.850 along with my co-counsel and colleagues,

01:15 - 25.988 Alicia Hitchcock and Elizabeth Casey.

01:15 - 26.455 Your Honor,

01:15 - 27.489 in remanding this case

01:15 - 30.025 to the Office of Open Records for further fact finding.

01:15 - 32.394 The Commonwealth Court abused its discretion

01:15 - 34.196 in this case in two respects.

01:15 - 36.532 First, the decision of the Commonwealth Court

01:15 - 38.767 remanding this case to the O.R.

01:15 - 39.902 was contrary to law

01:15 - 41.937 because it disregarded two of the key

01:15 - 44.339 structural features of the right to know law,

01:15 - 46.608 the presumption of disclosure and the burden of proof.

01:15 - 49.611 Rather than simply apply those provisions

01:15 - 51.079 as the written in the statute.

01:15 - 54.516 The Commonwealth Court effectively or rewrote them.

01:15 - 58.453 It created a new special carve out that applies specifically

01:15 - 00.055 to public safety cases,

01:16 - 01.323 but the power to grant

01:16 - 03.825 favored status to particular classes of records

01:16 - 06.461 or to specific agencies rests solely

01:16 - 08.397 with the General Assembly, not with the courts.

01:16 - 12.234 Second, the Commonwealth Court ordered additional fact

01:16 - 16.605 finding in this case, even though the State Police

01:16 - 18.540 have never asked for additional fact

01:16 - 21.209 finding, have never pointed to a single fact that's in dispute.

01:16 - 25.047 And Iran has

01:16 - 25.948 never pointed

01:16 - 27.449 to any facts in the six

01:16 - 29.651 year history of this case that they would add to the record.

01:16 - 32.821 Should there be an opportunity for further fact finding?

01:16 - 35.324 Simply put, there were no facts left to find.

01:16 - 38.727 Notwithstanding the remand for additional fact finding.

01:16 - 41.897 What about the fact that excuse me to interrupt your opening,

01:16 - 45.100 but what about the fact that in our opinion,

01:16 - 48.704 when you were last here on this issue

01:16 - 50.772 in the

01:16 - 54.610 I guess the note on clause of the majority opinion,

01:16 - 55.777 I assure you know where I'm going to read.

01:16 - 56.578 Yes, of course.

01:16 - 59.715 You know, on remand the court a amendment should compare

01:16 - 03.418 the affidavit to the provisions of the unredacted policy

01:17 - 07.456 that the affidavit describes in keeping with this authority

01:17 - 09.191 under the RTL.

01:17 - 11.360 The Court also retains the discretion

01:17 - 12.761 to further the record.

01:17 - 14.429 So didn't the Commonwealth Court

01:17 - 16.598 do exactly what we told them they should do?

01:17 - 18.367 No, Your Honor.

01:17 - 20.068 And I think there are a couple of reasons for that.

01:17 - 24.006 One is because, as this court was also careful to note,

01:17 - 27.109 I think maybe a paragraph or two before that, it chose not to

01:17 - 30.078 look at the record itself, to look at what was in-camera.

01:17 - 34.216 So I that passage is best understood

01:17 - 35.784 as just keeping all options open,

01:17 - 37.285 not taking anything

01:17 - 39.021 off the table for the Commonwealth Court

01:17 - 40.956 because in keeping with its authority

01:17 - 44.159 as the Chapter 13 Court is the ultimate finder of fact,

01:17 - 46.628 there could well have been things upon

01:17 - 48.730 remand that required additional fact finding.

01:17 - 51.500 Once it looked at the full record, it hadn't done that yet.

01:17 - 53.235 I just

01:17 - 57.472 I appreciate your

01:17 - 00.609 view of that paragraph, but I guess that I

01:18 - 06.048 am hesitant to criticize a lower appellate court

01:18 - 09.084 for doing something that was within

01:18 - 11.053 their province is a fact finder.

01:18 - 14.122 And also because it's exactly what we told them to do

01:18 - 15.390 in the majority opinion.

01:18 - 17.693 Well, I suppose you and I know that this was it

01:18 - 20.262 didn't say if necessary at the end of that sentence.

01:18 - 22.431 I do think, though, that's implicit in the in

01:18 - 24.566 keeping with its authority under the right to know law,

01:18 - 26.601 because I agree with you

01:18 - 28.070 up to a point, the Commonwealth Court

01:18 - 29.705 did exactly what it was supposed to do.

01:18 - 32.407 It looked at the text of the unredacted policy.

01:18 - 34.976 It compared it to the

01:18 - 39.347 the affidavit of the major, major Burge, and then concluded

01:18 - 41.450 no fewer than eight different times

01:18 - 42.684 in the course of its opinion

01:18 - 44.853 that that affidavit was insufficient to connect

01:18 - 48.156 that policy to a threat to public safety.

01:18 - 52.894 And at no point prior to that did the state police either

01:18 - 55.397 before it got up to that court or on remand from this one.

01:18 - 58.567 Well, they had one in the lower court on the first

01:18 - 02.137 reading reiteration of this issue.

01:19 - 05.440 The Commonwealth Court had had that the affidavit,

01:19 - 08.477 unredacted, was sufficient.

01:19 - 10.512 Yes, I know, Your Honor.

01:19 - 12.147 They lost in the Office of Open Records.

01:19 - 14.049 So when they went to the Commonwealth Court,

01:19 - 16.718 they were very well aware that they had lost.

01:19 - 18.754 They knew that if they didn't

01:19 - 21.423 either stand on their record or supplement it to provide

01:19 - 23.592 additional facts, that record was getting released.

01:19 - 25.093 They chose to stand on the record.

01:19 - 28.163 They rejected the request or the suggestion, the offer

01:19 - 32.434 from the appeals officer or the o r to hold the hearing

01:19 - 33.268 when that was before them.

01:19 - 36.104 I think there are some parallels in that circumstance

01:19 - 37.773 of the Court's decision in the Kelty,

01:19 - 42.077 which postdated PSP one saying that there are opportunities

01:19 - 44.713 in the office of, open records to develop a factual record

01:19 - 46.515 and essentially

01:19 - 48.483 you can run out of chances to develop that record.

01:19 - 49.050 And I think that's

01:19 - 50.485 what happened here for the State Police

01:19 - 52.621 when they didn't take that opportunity at any

01:19 - 53.922 and still haven't.

01:19 - 55.991 Still haven't suggested there are any more facts

01:19 - 57.692 to develop even in the brief in this court.

01:19 - 00.762 Counsel, I

01:20 - 02.798 this request

01:20 - 05.300 was not an extensive document request.

01:20 - 07.602 Yes. For one document, correct? Yes, Your Honor.

01:20 - 11.840 And this one document was before the Office of Open Records

01:20 - 14.442 who said,

01:20 - 17.212 no problem, it should be released

01:20 - 19.548 without redactions.

01:20 - 22.951 I'm struggling with

01:20 - 25.921 what exactly it is

01:20 - 29.624 that the PSP could do

01:20 - 33.395 on this remand without any time limits on it, I might add.

01:20 - 38.133 Other than seeing more words,

01:20 - 39.668 if you understand what I'm saying.

01:20 - 43.839 I mean, it's a it's to me, it's a mystery.

01:20 - 46.541 I mean, it's like they the court found that

01:20 - 49.744 the pleading was insufficient.

01:20 - 52.881 And instead of just saying and we find that there

01:20 - 56.651 nothing in the record before us in this affidavit

01:20 - 59.688 to support what happened here, we're going to just send it back

01:20 - 04.159 and give you another shot at saying something else

01:21 - 08.797 that you've now had six years to develop.

01:21 - 10.498 And that's

01:21 - 13.335 why I'm trying to I'm having a very hard time

01:21 - 16.872 fitting this case into the other cases

01:21 - 21.843 in the Commonwealth Court where what was at play was a response

01:21 - 25.814 that involved thousands of documents.

01:21 - 27.649 The present case, for example,

01:21 - 30.552 thousands of documents in the Commonwealth Court said,

01:21 - 33.822 You just haven't told us which of these documents

01:21 - 37.759 go to which of these particular requests.

01:21 - 40.328 And so we're sending it back and we're giving you a month,

01:21 - 42.497 I might add, in order to do that.

01:21 - 44.532 That's not this case.

01:21 - 45.634 No, Your Honor, it's not.

01:21 - 46.902 I think that there are

01:21 - 51.139 a couple of facets of that that really inform

01:21 - 53.141 the fact that this was an abuse of discretion.

01:21 - 56.711 As Your Honor said in Carrie, I believe it was the Department

01:21 - 57.412 of Corrections case.

01:21 - 59.080 There was a specific time limit put on.

01:21 - 00.749 There wasn't one here.

01:22 - 03.285 So even if you had setting aside the legal rule for a second,

01:22 - 05.387 even if you had a legal basis for a remand,

01:22 - 08.156 there wasn't any specific facts that was identified saying,

01:22 - 09.858 well, there's a factual dispute about X,

01:22 - 12.127 there's a shortcoming in the record in this regard.

01:22 - 14.429 There is confusion.

01:22 - 15.797 I mean, this is a social media policy.

01:22 - 17.799 It's conceivable there could have been

01:22 - 20.268 a judge at some point who was

01:22 - 22.671 had some background questions about how Tok works.

01:22 - 23.204 And they wanted

01:22 - 26.308 to call the parties or someone in to ask about it.

01:22 - 27.642 But again, that wasn't done.

01:22 - 29.411 It was sent with a just open remit

01:22 - 32.580 to the Office of Open Records to start the case over again.

01:22 - 34.983 And I think it's important in that regard to note

01:22 - 40.088 that all of those time periods that are so meticulously

01:22 - 43.158 spelled out in the right to know law for initial appeals

01:22 - 46.027 are specifically keyed to initial appeal

01:22 - 49.264 from the receipt of the appeal from the records

01:22 - 50.598 officer at the agency.

01:22 - 51.533 So you're we're talking about

01:22 - 52.600 going back into a world

01:22 - 55.136 where this is going to land on appeals officers.

01:22 - 58.106 Daskal Very likely has a large docket of cases.

01:22 - 02.377 They have to decide in 30 days for a free ranging frolic

01:23 - 04.713 through the record to find some additional facts here.

01:23 - 06.614 How do you know that? I'm sorry. You're on.

01:23 - 07.349 How do you know that?

01:23 - 09.784 The right to know that the appeals officer

01:23 - 10.652 in the Office of Open

01:23 - 11.886 Records is just going to put this

01:23 - 13.822 on a side pile and let it rot?

01:23 - 15.223 We don't know that they're going to do that, Your Honor.

01:23 - 17.692 And you could always ask I mean, you don't know that,

01:23 - 21.696 and you could ask the appeals officer to expedite.

01:23 - 22.564 There's nothing

01:23 - 25.433 the decided that it's going to just rot away

01:23 - 28.470 and be put on a pile somewhere doesn't really have any legs.

01:23 - 29.771 Well, I don't

01:23 - 30.238 I think,

01:23 - 30.505 you know,

01:23 - 30.839 that's in

01:23 - 32.474 some ways the point is that we don't know

01:23 - 33.375 because the Commonwealth Court

01:23 - 34.876 didn't put those guardrails in place.

01:23 - 36.711 That's why we're saying it's an abuse of discretion.

01:23 - 38.546 If they had put the guardrails in place,

01:23 - 39.414 if the Commonwealth Court

01:23 - 42.584 had ordered the appeals officer to on remand it

01:23 - 45.186 to hold a hearing and issue a decision within 30 days,

01:23 - 46.454 you wouldn't have appealed it to us.

01:23 - 47.956 No, Your Honor, I think we are.

01:23 - 49.324 I think there are as I was saying,

01:23 - 50.091 there are a couple of different

01:23 - 51.826 levels of abuse of discretion here.

01:23 - 54.763 One is doing this in a context where they created

01:23 - 56.431 a special rule and a special carve out.

01:23 - 57.832 The other one is the sort of factual

01:23 - 00.869 and procedural piece where there is no factual predicate

01:24 - 03.972 for when here and then even if there were a factual.

01:24 - 04.873 Well, let's.

01:24 - 07.008 Talk about the special carve out because that's

01:24 - 08.309 that's interesting.

01:24 - 10.745 The right to know law has a ton of exceptions.

01:24 - 13.415 Virtually all of the right to know exceptions

01:24 - 15.050 rely on an agency, and particularly

01:24 - 18.086 in agencies, lawyer, to protect the information of other people

01:24 - 23.191 and and sometimes protect the safety of other people.

01:24 - 26.594 And when you're dealing with a public safety exception,

01:24 - 29.664 isn't it actually not an abuse of discretion

01:24 - 33.068 for the court to say, look, you've raised a really

01:24 - 38.239 interesting public safety concern here, that

01:24 - 41.709 that you just did a bad job at presenting

01:24 - 43.344 We don't want issue

01:24 - 46.281 an order to disclose a document that could lead to somebody's

01:24 - 49.751 public and personal information being disclosed or their safety

01:24 - 52.454 being compromised because you didn't do a good job lawyering.

01:24 - 55.590 Why is that an abuse of discretion?

01:24 - 56.624 Well, I.

01:24 - 57.792 I will

01:24 - 00.261 quarrel with your honest hypothetical briefly

01:25 - 02.497 and say that isn't exactly what the Commonwealth.

01:25 - 05.333 Well, but see, we deal with bigger issues than individuals.

01:25 - 07.368 So I understand what I just say.

01:25 - 09.971 I think that yeah,

01:25 - 14.309 we are certainly sympathetic to that predicament and no one,

01:25 - 18.446 you included, wants that sort of horror scenario to happen.

01:25 - 20.048 The nuclear power plant record

01:25 - 21.683 gets released by accident because?

01:25 - 23.251 Because under your theory,

01:25 - 27.622 if the agency just puts a general affidavit in and in some

01:25 - 30.859 appeals officer or Commonwealth Court judge

01:25 - 34.162 says it's just too general, under your view,

01:25 - 35.730 there's no discretion.

01:25 - 37.765 If they didn't meet the burden,

01:25 - 41.469 then the nuclear power plant plans have to be disclosed.

01:25 - 43.638 It's putting it all in the lawyers.

01:25 - 44.973 It does put a lot of the lawyers,

01:25 - 47.442 but I suppose there is

01:25 - 48.710 no one is saying that there is

01:25 - 50.612 there couldn't be a scenario where

01:25 - 53.615 an agency lawyer could come in and say excusable

01:25 - 56.618 neglect fell through the cracks when cases were changing hands.

01:25 - 58.887 Mayor Culpa, please.

01:25 - 59.587 Commonwealth Court,

01:25 - 02.423 could we get another bite at the apple here?

01:26 - 04.659 But again, that still isn't what I know.

01:26 - 05.927 We're talking about broader cases,

01:26 - 08.763 but we're not trying to rule that out or the case.

01:26 - 10.198 I think that happened

01:26 - 12.433 in the case, Your Honor, decided on the Commonwealth Court,

01:26 - 15.870 which is the Allegheny County versus WTI case, where

01:26 - 17.405 there are third parties that come in and say

01:26 - 19.407 we didn't have a chance to build a record in the court

01:26 - 20.975 below, please give us that chance.

01:26 - 22.443 We're not trying to take

01:26 - 24.913 all of those off the table by any stretch of the imagination.

01:26 - 27.115 That's where sound discretion comes in.

01:26 - 27.682 We're saying

01:26 - 31.486 simply that in this case, there was no there was no there.

01:26 - 32.554 There this is a set.

01:26 - 34.022 And this is different

01:26 - 36.524 because this is the second bite at the apple.

01:26 - 39.761 The PSP didn't put on anything

01:26 - 41.095 in front of the Commonwealth Court.

01:26 - 41.963 Correct, your Honor, either.

01:26 - 44.499 It sat there for 11 months after we remanded it

01:26 - 48.736 and then the judge just well, judges, judges decided it

01:26 - 51.873 and gave PSP a second bite at the apple didn't do

01:26 - 53.508 the in-camera review is not right.

01:26 - 54.976 They did the in-camera review, Your Honor,

01:26 - 57.745 but there was no then I think there are

01:26 - 00.081 two justice perhaps in this question too. I think,

01:27 - 03.051 again, if the

01:27 - 04.686 panel at that point had looked at the record

01:27 - 05.587 and said,

01:27 - 08.756 We're confused by this, come in and talk to us again,

01:27 - 09.824 I think that's a different story.

01:27 - 11.259 But we're not there.

01:27 - 12.894 And I think, too,

01:27 - 14.596 I think what may be animating justice

01:27 - 17.532 perhaps in under your ultimate question here is

01:27 - 20.134 there has to be and the right to know,

01:27 - 24.472 I think, represents a balance among security, transparency

01:27 - 25.740 and expediency.

01:27 - 28.610 And I think our ultimate point is that balance was struck

01:27 - 30.478 the General Assembly. And that's that's what.

01:27 - 31.145 What I'm

01:27 - 33.781 what I'm just concerned is your your broader bigger issue.

01:27 - 37.619 This idea that you have argued that the Commonwealth Court

01:27 - 38.753 and the court

01:27 - 41.723 and the appeals officers under the right to know law

01:27 - 44.892 should not you refer to it as a carve out,

01:27 - 48.129 but shouldn't should has to treat every every

01:27 - 50.298 equally

01:27 - 53.067 for purposes of the process and the procedure.

01:27 - 56.237 That's that's the bigger issue that I think you're here

01:27 - 57.038 arguing about.

01:27 - 57.639 And that's the one

01:27 - 00.541 I'm concerned about, because public safety

01:28 - 03.945 and personal identifying information

01:28 - 08.583 and personal security are significant exceptions.

01:28 - 12.687 That that, in my view, do deserve heightened attention.

01:28 - 14.622 And I think, Your Honor,

01:28 - 17.392 you see some of that reflected in the text of the statute,

01:28 - 21.429 the General Assembly didn't say there has to be a clear

01:28 - 22.363 and present

01:28 - 24.365 danger to public safety. They said a reasonable

01:28 - 27.268 likelihood of a threat to public safety.

01:28 - 30.038 And we had a hard time over the years

01:28 - 32.273 explaining to agencies

01:28 - 36.377 how to slice that in terms of an affidavit

01:28 - 37.011 without giving

01:28 - 39.981 too much the affidavit and not enough in the affidavit.

01:28 - 42.984 We haven't been entirely clear the level of detail

01:28 - 47.922 that they have to go to to to disclose why this document

01:28 - 51.259 is so sensitive without disclosing

01:28 - 52.827 the sensitivity of the document.

01:28 - 55.663 Well, in this case, though, we sent it back

01:28 - 59.667 and the PSB had that second bite and had that opportunity

01:28 - 01.469 and they presented nothing.

01:29 - 03.604 And so your argument is that it was error

01:29 - 06.874 for the Commonwealth Court to basically thumb its nose at

01:29 - 09.777 and send it back to OHA for

01:29 - 11.679 another get

01:29 - 14.349 go for the PSP to try all over again is not the point.

01:29 - 16.851 I think that is the point. You're on.

01:29 - 19.687 And I guess one more procedural wrinkle I'll put on it

01:29 - 23.491 is that the Commonwealth Court said,

01:29 - 26.194 they said several times that the affidavit

01:29 - 28.629 was insufficient, the State police didn't

01:29 - 30.231 challenge that in a cross petition.

01:29 - 31.933 That's the law, the case now.

01:29 - 33.601 So whatever we may think about again,

01:29 - 36.170 other cases, other scenarios, the bigger picture

01:29 - 38.539 for for this record, for this case,

01:29 - 40.842 there is I don't think there's any contesting at this point

01:29 - 42.977 that that's that that's the case. It starts to take.

01:29 - 46.481 Do you agree with justice Robson

01:29 - 50.485 that the public safety exception is different?

01:29 - 54.389 Is it more important, more expansive

01:29 - 56.624 than the other exception?

01:29 - 57.392 I don't think it's

01:29 - 00.261 a couple of answers that you're out here on.

01:30 - 02.296 I know. I was going to put you on the spot.

01:30 - 04.198 No. Yeah, I appreciate that.

01:30 - 05.767 I don't think it's more important.

01:30 - 09.504 I think that there are yes, there are critical interests

01:30 - 11.773 that are at stake there. Same with personal security.

01:30 - 14.342 And so there is a critical infrastructure exception to.

01:30 - 18.179 So, yes there are some that are have very weighty public policy

01:30 - 20.615 or just public implications to them.

01:30 - 22.383 But I think you have to look

01:30 - 24.552 for the reflection of that importance

01:30 - 27.054 in, both what the General Assembly did

01:30 - 29.023 in couching the substantive exception.

01:30 - 32.860 It certainly didn't it didn't impose a,

01:30 - 35.196 as I said, a clear and present danger

01:30 - 37.231 or didn't require clear and convincing evidence.

01:30 - 41.836 And also, as this court noted, the last time it was here,

01:30 - 43.604 there has to be due respect to disregard

01:30 - 46.641 for the opinions of experienced law enforcement officers

01:30 - 48.142 or people charged with public safety.

01:30 - 52.313 But at the end of the day, the statute

01:30 - 54.582 still requires that public records be released.

01:30 - 58.886 And if, after assessed, as in this case,

01:30 - 01.422 several attempts to carry that burden is not carried.

01:31 - 02.590 That's those.

01:31 - 02.857 Other words.

01:31 - 04.492 It's not the Commonwealth Court's job

01:31 - 07.161 to do the job for it.

01:31 - 08.095 Right?

01:31 - 09.864 We sent it back.

01:31 - 12.033 The PSB didn't do anything

01:31 - 14.769 and the Commonwealth Court said, Oh, that's okay,

01:31 - 16.704 we're going to give you a whole nother go round.

01:31 - 18.539 Right when we remanded it,

01:31 - 22.577 the PSP did not do anything to defend the Burge affidavit.

01:31 - 25.146 They just said, We're standing on this, this is it.

01:31 - 26.380 That's all you get.

01:31 - 28.683 And that's in defiance of our of our opinion.

01:31 - 29.283 Right.

01:31 - 32.620 I wouldn't want to characterize the conduct, in my view, of

01:31 - 34.322 the agency, but yes, it was that

01:31 - 36.557 is that procedurally that is what happened. Yes.

01:31 - 38.259 All right. Any other questions.

01:31 - 42.763 Counsel, to make the point that justice drops in

01:31 - 46.601 make you know, we we decide broader course issues.

01:31 - 49.904 And one of the things that bothers me about this

01:31 - 54.008 and correct me if I'm wrong, doesn't this just encourage

01:31 - 57.678 vague responses

01:31 - 01.182 to these requests. Yes.

01:32 - 05.119 What's going to happen six years later is you're going to have

01:32 - 09.657 another shot at making that response

01:32 - 14.228 more sufficient in the terms of the Commonwealth, of course.

01:32 - 17.198 I mean, that's what concerns me about what happened here,

01:32 - 20.768 keeping in mind that the

01:32 - 23.337 policy exception that was at play here is

01:32 - 24.772 is indeed important,

01:32 - 27.575 as most of them are, because the opposite side of this,

01:32 - 29.477 this particular case

01:32 - 32.113 are the privacy rights of individual citizens

01:32 - 33.581 in the Commonwealth of Pennsylvania.

01:32 - 37.451 So that had been sort of put on hold for about six years.

01:32 - 39.186 Six years tomorrow actually.

01:32 - 40.621 I was going to say I didn't know

01:32 - 43.658 if it was precisely this day, but I knew it was close.

01:32 - 46.961 So, I mean, is that a concern here?

01:32 - 50.831 I mean, what what is the what is the initiative to do

01:32 - 52.533 something that's precise

01:32 - 55.369 and as responsive as possible from the get go?

01:32 - 57.972 If you can just know you're going to hold back

01:32 - 58.873 that information

01:32 - 59.307 for an

01:32 - 02.877 interminable period of time by just standing on what you have.

01:33 - 04.712 I think that is a concern, Your Honor.

01:33 - 06.314 And again, I don't want to impute any

01:33 - 10.184 bad faith and the court's opinion last time was great,

01:33 - 13.154 was was careful to say the same thing that

01:33 - 17.592 one can, you know, knowing that that's a standard,

01:33 - 20.728 knowing that you don't have to maybe toe the line,

01:33 - 22.930 come right up to that point that Justice Roberts

01:33 - 24.298 and I think was talking about

01:33 - 26.000 it can speak much more vaguely

01:33 - 27.868 and have another bite at the apple later.

01:33 - 28.970 I do think that's a problem.

01:33 - 30.137 I think that that is,

01:33 - 32.440 again, a parallel to what this court said in Mckelvie,

01:33 - 33.674 where you are.

01:33 - 35.443 If you are slowly titrating evidence

01:33 - 37.678 into the record over successive rounds of appeals,

01:33 - 40.147 you're serious tension with the statutes, goals

01:33 - 41.983 of openness and transparency.

01:33 - 45.853 And again, the ultimate goal of a request.

01:33 - 47.722 If you are a news agency, you listen,

01:33 - 49.624 you lose that six years later.

01:33 - 52.960 And so, if I may, the statute requires

01:33 - 55.863 the agency to prove by preponderance of evidence

01:33 - 00.067 that one of the enumerated exception applies falling

01:34 - 03.104 back to your hypothetical, that this is a nuclear power plant.

01:34 - 07.675 My remembrance of Major Burke's explanation was that

01:34 - 11.479 section covers PSP, the ability to use open sources

01:34 - 15.082 in an undercover capacity and provide policies, procedures

01:34 - 18.619 and operational details regarding undercover activity.

01:34 - 21.489 He further explained disclosure This information

01:34 - 24.492 would provide criminals with tactics the police used

01:34 - 27.995 when conducting undercover investigation, thereby

01:34 - 30.898 jeopardizing their investigation and ability

01:34 - 32.400 to catch individuals

01:34 - 35.269 from an ACLU perspective for preponderance standard.

01:34 - 38.873 What should be in that, I'm quote,

01:34 - 42.543 with this concept, the lowest standard of preponderance?

01:34 - 46.747 I read the affidavit and I understand what the concern is.

01:34 - 49.183 If we're to protect those,

01:34 - 52.586 if the agency is to protect individuals, what are we to say?

01:34 - 57.358 Oh, you can't go to gate C of the power plant

01:34 - 01.062 because we have special locks that we can't tell you

01:35 - 02.830 how can be hacked.

01:35 - 04.565 I'm confused. Yes.

01:35 - 07.802 From an ACLU, because as you indicated,

01:35 - 12.573 we want the right to know law to be available

01:35 - 16.510 and to be utilized by the public and however,

01:35 - 19.580 you also agree that the state police

01:35 - 24.385 or law enforcement need to protect their own ability

01:35 - 27.455 to obtain information to get the bad woman.

01:35 - 30.057 How do you meet that?

01:35 - 30.991 Through a preponderance.

01:35 - 33.894 Give me an example of what your affidavit would look like.

01:35 - 36.430 And I don't want to fight Your Honor's hypothetical,

01:35 - 38.399 but I haven't seen the record and none of it.

01:35 - 41.502 And that's part of the problem, is that Office of Open Records

01:35 - 44.138 and the Commonwealth Court both said that essentially

01:35 - 46.640 there is a mismatch between this policy says

01:35 - 49.844 and what the affidavit says that it says

01:35 - 52.012 and says the dangers are.

01:35 - 53.047 I mean, again,

01:35 - 54.548 this is, of course, an extreme hypothetical,

01:35 - 56.817 but for all we know, the policy says

01:35 - 58.419 some version of Mary had a little lamb.

01:35 - 59.587 We don't know.

01:35 - 03.190 So the statements in the affidavit may sound

01:36 - 04.859 convincing and certainly were convincing

01:36 - 06.660 to the Commonwealth Court the first time around.

01:36 - 09.797 But the problem is that there has to be a tether

01:36 - 13.467 between a causal tether, between what those threats are

01:36 - 15.102 and what's in the policy.

01:36 - 17.238 And now both tribunals to have looked at it,

01:36 - 18.239 said that it's

01:36 - 20.541 not even the Commonwealth Court, which again seemed

01:36 - 24.512 disposed to allow the State Police plenty of leeway

01:36 - 26.781 here, concluded that that tether wasn't satisfied.

01:36 - 30.484 Let's let's use this as an example.

01:36 - 33.087 The of

01:36 - 36.390 a political party is holding a convention in Philadelphia

01:36 - 40.661 and there are concerns that alleged

01:36 - 44.465 radicals or anarchists are going participate.

01:36 - 46.600 And there's a concern of problems.

01:36 - 47.701 And the procedure

01:36 - 51.672 or policy of the local police department is infiltrate.

01:36 - 56.243 But where clothes associated with millennials

01:36 - 01.582 or goths or or some descriptive

01:37 - 06.086 that they find defensive.

01:37 - 09.690 How do you protect the law enforcement

01:37 - 12.526 from engaging in this surveillance

01:37 - 16.497 other than by saying policy and procedures?

01:37 - 21.268 You can't say goths or millennials

01:37 - 24.538 or yuppies or whatever term you want to use

01:37 - 28.542 because of their biased view of what a radical anarchist is.

01:37 - 32.346 I'm somewhat I'm caught between this

01:37 - 34.348 because I don't believe

01:37 - 36.517 look, don't believe government has a right

01:37 - 38.385 to interfere in our lives.

01:37 - 40.988 But I do believe law enforcement has a right to protect

01:37 - 43.123 all of us.

01:37 - 44.225 How do you balance that?

01:37 - 47.528 By preponderance of levels, a preponderance of evidence.

01:37 - 52.900 So again, hypothetically, the scenario is a protest

01:37 - 57.471 for my 20 2024 Trump rally in Philadelphia.

01:37 - 59.573 I suspect we'll see you on your honor.

01:37 - 04.411 Yes, I think the honor I think that's in part where

01:38 - 09.316 the the agency I think there are

01:38 - 11.318 maybe a couple of answers

01:38 - 13.020 and I'll draw a little bit on the record in this case.

01:38 - 14.788 But I don't I again, I want to answer Your Honor's

01:38 - 18.993 broader hypothetical is part of the record here

01:38 - 22.062 that we submitted on our side was other policies

01:38 - 24.131 from other departments that released their

01:38 - 26.233 very similarly worded, similar versions of this

01:38 - 27.301 that are either very,

01:38 - 30.738 very lightly redacted or not redacted at all, suggesting that

01:38 - 34.508 many other police departments and many other places don't

01:38 - 35.843 see a problem

01:38 - 37.278 with releasing this to the public

01:38 - 39.079 and therefore is not likely to endanger public safety

01:38 - 41.081 because the state police in New Mexico

01:38 - 43.117 probably are similarly concerned with the safety of

01:38 - 45.252 their citizens, like the state police of Pennsylvania are.

01:38 - 47.788 To Your Honor, sort of hypothetical.

01:38 - 49.957 I think that you

01:38 - 52.126 it may be well, the Congress of that

01:38 - 55.896 is that well, in part it may be sort of an industry practice.

01:38 - 57.097 It may be

01:38 - 59.300 some more sensitive redactions that say

01:38 - 03.370 infiltration of personnel by two Goths or whatever

01:39 - 05.205 the sort of descriptors are, gets redacted out

01:39 - 07.107 so that someone can say, all right,

01:39 - 09.043 well, they're going to be dressed as X,

01:39 - 11.879 but they will be trying and again, striking a balance.

01:39 - 14.415 I think that's part of what what is what is missing here

01:39 - 17.051 is that element of striking balance.

01:39 - 19.920 These particular similar affidavits

01:39 - 22.389 where they introduced as part of this record.

01:39 - 24.191 In the office of Open Records. Yes.

01:39 - 26.427 So it is part of the record under in.

01:39 - 29.697 Council, correct me if I'm wrong

01:39 - 33.667 the Commonwealth Court obviously didn't at those

01:39 - 35.736 because they didn't look at anything.

01:39 - 37.638 There's nothing in this opinion

01:39 - 39.340 that we have that which suggests that

01:39 - 41.508 they looked at those affidavits this time around.

01:39 - 45.012 Either there's that reflects the opinion

01:39 - 47.915 references the affidavit

01:39 - 49.483 but that is the only evidence in the record

01:39 - 50.985 that it that it references. Yes.

01:39 - 53.754 In fact in fact it just there for 11 months.

01:39 - 55.923 And then it was just submitted without briefing or argument.

01:39 - 57.091 Correct. Your Honor.

01:39 - 58.359 It seems like the Commonwealth

01:39 - 00.494 Court just found it in interrogation

01:40 - 01.929 of what we told them to do.

01:40 - 02.262 Okay.

01:40 - 05.332 I think we we have your argument.

01:40 - 07.568 Thank you. Thank you.

01:40 - 11.305 So you're from the state police.

01:40 - 18.579 Good morning, Your Honor.

01:40 - 19.546 May it please the court.

01:40 - 20.414 My name is John

01:40 - 23.150 Herman, Assistant Counsel with the Office of Chief Counsel

01:40 - 25.152 representing the Pennsylvania State Police.

01:40 - 29.656 And as always, it's my honor to be before this court.

01:40 - 31.425 Your Honor, I want to be very clear.

01:40 - 34.194 We don't take issue with where the case currently is,

01:40 - 39.433 but there's a suggestion that the lower court

01:40 - 41.602 here was unwilling to apply the facts to the law.

01:40 - 42.636 I believe that's close to,

01:40 - 44.905 if not a verbatim quote from their brief.

01:40 - 47.574 And I think that that misses the point.

01:40 - 49.810 It misses the careful balance that I think

01:40 - 51.912 is struck by much of the case.

01:40 - 53.480 Well, it's out there from the Commonwealth Court

01:40 - 56.383 and I think it was even it was recognized by this court

01:40 - 59.286 in this case, in what I refer to in my brief as the

01:40 - 01.889 AP one opinion, the first time this was before this court

01:41 - 04.992 and I'm quoting here, There can be no question

01:41 - 06.393 that law enforcement agencies

01:41 - 08.395 require the ability to protect documents

01:41 - 11.398 that, would reveal methods, protocols

01:41 - 13.801 and other information, the secrecy of which

01:41 - 16.503 is essential to the agency's ability to ensure public safety.

01:41 - 19.273 Thus, even while construing the public

01:41 - 23.010 safety exception, strictly courts should proceed with care

01:41 - 25.212 not to narrow its application so much

01:41 - 27.381 that public safety is compromised.

01:41 - 29.783 And I think that's an excellent recitation of the balance

01:41 - 32.052 to be struck. And I did admit a few words to be clear there,

01:41 - 36.056 and I think that's exactly the recognition

01:41 - 39.827 that Judge Fasano Cannon's opinion tries to strike.

01:41 - 40.994 She rules.

01:41 - 42.763 I believe that, first of all, she did do it

01:41 - 44.765 this court asked her to do or what

01:41 - 47.201 the court was instructed to do. The panel below.

01:41 - 51.004 They did compare each section of our affidavit with the

01:41 - 53.774 evidence before it, and in looking at it,

01:41 - 55.509 they concluded that it was insufficient.

01:41 - 56.176 And they also said that

01:41 - 59.413 they were unable to determine, based on the record before them.

01:41 - 01.215 We don't take any issue with that ruling.

01:42 - 03.250 We respect that.

01:42 - 04.818 But the court also said is Justice

01:42 - 07.354 Mundy alluded to this court also said in PSP,

01:42 - 08.422 one that the court retains

01:42 - 11.291 the discretion to remand for further proceedings,

01:42 - 13.894 and that is what happened here.

01:42 - 16.163 What was the point of the remand here.

01:42 - 18.932 To the judge's order said

01:42 - 19.566 that there was

01:42 - 21.368 a new determination was to be issued

01:42 - 22.769 and that there was to be an evidentiary hearing.

01:42 - 24.538 So it was clearly to develop the record.

01:42 - 28.308 Your Honor, could I ask you, Counsel, what

01:42 - 34.681 why didn't when we remanded it,

01:42 - 40.120 why didn't PSP do anything in the Commonwealth Court

01:42 - 43.357 to substantiate its claim that there was a probable

01:42 - 45.792 threat to public safety?

01:42 - 49.796 Your Honor, as I understand this Court's ruling in PSP one,

01:42 - 51.298 it was simply that

01:42 - 54.201 the Commonwealth Court failed to recognize

01:42 - 55.602 the appropriate balance,

01:42 - 57.838 that they should have looked at the opinion and compared

01:42 - 00.574 shoes, that they should have looked at the policy

01:43 - 05.145 and compared the affidavit more closely to what was provided.

01:43 - 08.982 And that in failing to do that, they had a they'd given

01:43 - 12.319 too much deference to the agency in this particular case.

01:43 - 13.587 Your Honor, I think

01:43 - 15.956 the point

01:43 - 18.458 here is that we're to get back.

01:43 - 25.632 Sorry, lost my translate.

01:43 - 27.834 But let me just let me just ask it this way.

01:43 - 31.905 Then we we send it back and

01:43 - 35.676 upon remand

01:43 - 37.844 the PSP stood

01:43 - 40.581 on the affidavit and said, this is good enough.

01:43 - 44.084 And basically invited this the Commonwealth Court

01:43 - 46.220 to either

01:43 - 49.656 deny the release of it or release it.

01:43 - 51.992 In other words, the PSP had the opportunity,

01:43 - 54.328 as I take it, in the Commonwealth Court

01:43 - 56.496 to substantiate its claim

01:43 - 58.699 that the disclosure of the affidavit

01:43 - 01.702 would pose, in the words of the statute, a probable

01:44 - 04.738 threat to public safety, not a possible or colorable one.

01:44 - 06.807 That didn't happen.

01:44 - 07.908 And as I understand it,

01:44 - 10.544 the Commonwealth Court, nonetheless on its own,

01:44 - 13.847 without a request from either party, sent it back for yet

01:44 - 16.850 another iteration in the overall.

01:44 - 19.987 Ah, when this thing's been going on for what, six years.

01:44 - 24.925 And I don't understand why that second bite

01:44 - 28.328 at the apple happened because as Justice Donahue pointed out,

01:44 - 33.133 the General Assembly recognized that there's an interest.

01:44 - 35.269 I mean, that's why they passed the statute, right?

01:44 - 38.672 There's a there's an interest in disclosure to the public.

01:44 - 39.806 Yes, Your Honor,

01:44 - 41.908 we would certainly agree with the characterization

01:44 - 43.310 that the law favors transparency.

01:44 - 44.278 I will take issue with that.

01:44 - 46.546 General practitioner.

01:44 - 49.216 But as to your question as to your question

01:44 - 51.718 as to why the state police can do anything,

01:44 - 53.920 that's one of the reasons I referred back to the court's

01:44 - 54.755 original opinion.

01:44 - 58.392 This it was a, as I understand it, largely a procedural ruling.

01:44 - 01.962 And we still believe that affidavit was sufficient.

01:45 - 03.964 We believe that we had provided sufficient detail

01:45 - 06.133 and we've included I'm not taking any issue

01:45 - 07.000 with the court's ruling.

01:45 - 09.036 We respect the finding of the court.

01:45 - 11.638 But as the court noted, at the end of that opinion

01:45 - 13.974 and affiant may sometimes walk a fine line.

01:45 - 15.876 We believe we should walk that fine line.

01:45 - 17.077 Up until that point, we one,

01:45 - 19.279 we wouldn't want to put more information out there.

01:45 - 22.749 Just as the law strikes a balance between transparency

01:45 - 24.017 and public safety,

01:45 - 27.187 we're trying to provide enough information in to

01:45 - 29.056 uphold the exemption, meet

01:45 - 31.058 that preponderance of the evidence standard.

01:45 - 31.992 And in this case,

01:45 - 34.628 we apparently did not, but we believe we had at that point.

01:45 - 34.961 So I. Don't know.

01:45 - 35.529 There's nothing

01:45 - 39.199 there's in SP1 one that said that the affidavit was

01:45 - 41.268 defective because if that

01:45 - 42.969 was the case, this court would have not

01:45 - 44.338 remanded to the Commonwealth Court.

01:45 - 45.672 They just would have ruled.

01:45 - 47.240 So it went back to the Commonwealth Court

01:45 - 49.643 for the Commonwealth Court to reanalyze

01:45 - 53.980 the what was before it as a new

01:45 - 57.284 a do over you will in the Commonwealth Court

01:45 - 01.555 to look at it under the appropriate balancing

01:46 - 05.692 that the court set for this Court set forth and PSP.

01:46 - 07.961 The Commonwealth Court looked at it,

01:46 - 11.798 reached the conclusion that the affidavit was

01:46 - 15.001 did not go over the threshold or you know

01:46 - 18.004 or was, was not adequate based on the case law,

01:46 - 20.440 but what's required in the affidavits

01:46 - 24.644 but nonetheless send it back to o r presumably

01:46 - 28.482 of at least a lingering concern that there was a public safety

01:46 - 30.083 personal security concern

01:46 - 32.619 that would be better addressed from by a

01:46 - 36.523 in record review or some kind of evidentiary hearing.

01:46 - 38.258 That's what happened.

01:46 - 39.559 Right. Okay.

01:46 - 42.262 Yeah, but but what what's missing their counsel is,

01:46 - 45.532 is the fact that this had already happened in a civil war.

01:46 - 47.801 That's what we were looking at in PSP. One

01:46 - 51.338 was recall because

01:46 - 54.074 you argue the case did not I did not your colleague Mr.

01:46 - 56.209 me I mean remember in that case,

01:46 - 00.013 oh, a warrior had already considered

01:47 - 03.650 these sections and had ordered disclosure

01:47 - 05.552 right then and went up to Commonwealth.

01:47 - 08.555 They said no, came up to us, we said yes, send it back.

01:47 - 12.325 And, and now as this is what I've been getting out

01:47 - 18.165 with my questions to you is now it's gone back to o r

01:47 - 23.503 for a reboot, a repeat of what had already happened before.

01:47 - 26.473 Am I, am I wrong on the status of that?

01:47 - 28.508 I don't

01:47 - 29.843 I don't believe Your Honor is incorrect

01:47 - 31.878 in the characterization of the status.

01:47 - 34.481 I think the question to the

01:47 - 37.017 the question will be whether there's an A

01:47 - 38.952 whether that constitutes an abuse of discretion.

01:47 - 39.719 That was understand it.

01:47 - 43.123 And that's perhaps where we I would respectfully disagree

01:47 - 44.491 or I would respectfully point out

01:47 - 46.426 that I believe that, like I said, we didn't

01:47 - 48.662 we didn't have any necessarily any onus.

01:47 - 51.131 We believe the affidavit was sufficient.

01:47 - 52.632 And the court

01:47 - 55.035 I think Judge Fasano Cannon's opinion makes clear

01:47 - 57.938 that she's recognizing the important public safety

01:47 - 00.106 concerns that the state police raise.

01:48 - 02.542 And in that regard, we should be given

01:48 - 03.844 the opportunity to supplement the record.

01:48 - 05.145 And I believe, you know, we we are certainly

01:48 - 07.581 and we would certainly be in a position to do that.

01:48 - 09.282 And we certainly wouldn't oppose

01:48 - 10.617 to justice some of those justice.

01:48 - 11.818 Donohue's concerns

01:48 - 14.688 about the timing, we certainly wouldn't oppose,

01:48 - 17.524 you know, a 30 or 60 day turnaround.

01:48 - 19.459 It's almost too late for that, though, isn't it?

01:48 - 21.194 It's been six years.

01:48 - 24.364 Well, I think this part of just it's been it it

01:48 - 26.633 this case has gone on. You're on you're justice.

01:48 - 27.701 You're correct.

01:48 - 31.371 So I'm clear when when we sent it back

01:48 - 33.507 to the Commonwealth Court,

01:48 - 36.343 it was because they hadn't looked at anything.

01:48 - 39.913 They were of the view that they could not

01:48 - 45.118 look at the documents, the record that was before the

01:48 - 49.523 o r. So I mean, we essentially sent it

01:48 - 52.726 back and said, take a look at what are looked at.

01:48 - 53.260 Right.

01:48 - 54.828 I think that's a fair characterization.

01:48 - 57.898 How many how many shots of the apple do you get?

01:48 - 01.568 And I'm not I'm not being trite with this.

01:49 - 03.336 I mean, the Commonwealth

01:49 - 06.573 Court said the affidavit is insufficient.

01:49 - 09.709 Well, in like an evidentiary world,

01:49 - 12.012 that means you haven't met your burden.

01:49 - 13.380 I don't know how else you say that.

01:49 - 15.649 That's what it means. You haven't met your burden.

01:49 - 18.118 So how many times

01:49 - 22.355 do you get to meet your burden, which has, just as Daugherty

01:49 - 25.425 pointed out, is like a low burden.

01:49 - 27.861 Low burden?

01:49 - 30.030 I would not dispute that characterization.

01:49 - 32.766 It is a fairly low burden.

01:49 - 35.402 I think, you know, as far as the time of this case,

01:49 - 37.304 I mean, this was going on through the pandemic,

01:49 - 38.171 and I'm not trying to make that

01:49 - 39.139 excuse. It just means

01:49 - 41.942 unusual circumstances over the last several.

01:49 - 46.112 And certainly, you know, as far as the how many question,

01:49 - 48.615 how many points do we get to speak respectfully,

01:49 - 52.285 I don't really view this case as being bites at the apple.

01:49 - 55.021 We prevailed in the Commonwealth Court.

01:49 - 57.624 This court reversed and we respect that ruling.

01:49 - 59.793 We believed our affidavit was still sufficient

01:50 - 02.095 and I think that's where it's important

01:50 - 04.631 to consider the policy and what's at issue here.

01:50 - 06.933 And the fact that we invoked the public safety exemption,

01:50 - 08.935 the Court the Commonwealth Court was sensitive to that.

01:50 - 11.304 If you look at bowling and some of the other cases

01:50 - 12.372 they talk about, obviously

01:50 - 13.807 this court is well aware

01:50 - 16.509 that the Commonwealth Court functions as the fact finder

01:50 - 20.580 and there are a number of cases where Allegheny County,

01:50 - 23.049 the carry case, which is cited at length by both parties

01:50 - 26.586 or courts, are sensitive to the public safety concerns.

01:50 - 29.422 And I believe that sensitivity here,

01:50 - 31.291 when they said they could not determine,

01:50 - 32.659 I think they were saying yet, you know,

01:50 - 33.860 they're they're looking at the other saying

01:50 - 36.029 it's not entirely clear to us we have to find the facts.

01:50 - 38.231 It's not entirely clear whether the state

01:50 - 40.133 police are right or whether they're wrong.

01:50 - 41.401 We want to develop more facts.

01:50 - 43.436 I don't think that means that we necessarily get

01:50 - 45.572 six more bites at the apple, so to speak.

01:50 - 46.806 Could I follow up on that, counsel?

01:50 - 50.276 I understand that your argument and it

01:50 - 54.447 it sounds reasonable, but for the fact that we're here

01:50 - 56.650 on the second bite, we're here on the second go. Right.

01:50 - 58.151 I mean, we said

01:50 - 02.122 oh, or appears have considered each redacted section carefully

01:51 - 05.291 against Major Burge's assertions in support of the redactions

01:51 - 06.226 and reached

01:51 - 08.928 reasonable reason conclusions that it documented

01:51 - 10.730 in a thorough, final fashion.

01:51 - 12.599 Indeed, it was individualized

01:51 - 14.901 discussions of Major Burge's assertions,

01:51 - 17.103 whereas the t detailed is the affidavit itself.

01:51 - 19.372 We sent it back to the Commonwealth Court

01:51 - 23.176 as the fact finder and and again

01:51 - 26.513 then had the Commonwealth Court held a hearing

01:51 - 31.184 and heard from PSP, hey, here's the reasons, you know, here's

01:51 - 32.152 the reasons in support

01:51 - 35.722 of the Burge affidavit and here's why, etc., etc., etc.

01:51 - 38.291 But instead it just sat there.

01:51 - 41.661 Then they said basically just do it over.

01:51 - 45.732 And you see that to me appears to be an abuse of discretion

01:51 - 48.702 by the Commonwealth Court because all it did

01:51 - 50.670 is just send it back

01:51 - 54.340 for the development again of what was already there.

01:51 - 57.043 Nothing else has changed and that to me

01:51 - 00.680 appears frustrate our ruling in PSP one.

01:52 - 04.217 But I want to give you a chance to respond to that.

01:52 - 06.453 Well, if I if I understand your question correctly,

01:52 - 09.656 your point correctly, I at some level,

01:52 - 12.325 I think I would note that is PSP.

01:52 - 16.296 We believe that the Commonwealth Court's ruling that you know,

01:52 - 18.732 we respect their ruling that that it was insufficient

01:52 - 19.866 but we don't think it was

01:52 - 22.235 abuse of discretion for them to send it back.

01:52 - 24.237 Now to the extent

01:52 - 25.739 I believe, Your Honor, suggesting

01:52 - 27.607 that the way the Commonwealth court handled

01:52 - 29.676 the matter was perhaps in defiance

01:52 - 31.911 or inconsistent with maybe is a better way to put it.

01:52 - 34.280 This Court's mandate from PSP, one

01:52 - 38.184 in. But I also,

01:52 - 40.820 if I understand, Your Honor correctly, I think I hear it in

01:52 - 44.023 some of your points that perhaps the Commonwealth Court could

01:52 - 48.027 have conducted a hearing, perhaps they could have reached.

01:52 - 50.296 I don't necessarily I would respectfully submit

01:52 - 52.599 that sending it back to OHA is not necessarily

01:52 - 54.701 all that different than what Your Honor is suggesting.

01:52 - 56.870 And if they were the ones to hold the proceedings

01:52 - 58.805 or whether they sent it back to o r,

01:52 - 00.540 it's fundamentally the same thing, Your Honor.

01:53 - 02.041 It's the fact finding process.

01:53 - 03.676 And I think both

01:53 - 06.346 Your Honor's point and even the ACLU in their brief,

01:53 - 08.481 acknowledge that the Commonwealth Court

01:53 - 09.182 could have done that.

01:53 - 10.483 I don't know that there's a meaningful difference

01:53 - 12.519 between them. Well, there's one meaningful difference.

01:53 - 16.623 If the o0r does the hearing, then arguably

01:53 - 17.724 you don't have an appeal right

01:53 - 18.992 from a Commonwealth Court decision.

01:53 - 21.661 It's a discretionary review.

01:53 - 22.962 Once the Commonwealth Court starts

01:53 - 24.898 taking evidence, it becomes a court of record.

01:53 - 26.199 The Constitution requires

01:53 - 27.667 you have appeal from a court of record

01:53 - 29.135 to a court not of record,

01:53 - 31.171 and it takes it out of our discretionary docket.

01:53 - 32.806 So by it's the Commonwealth Court

01:53 - 34.808 sending it to the yellow bar for the hearing,

01:53 - 37.076 the justice work is suggesting it happens.

01:53 - 38.578 We don't have to take the appeal

01:53 - 40.280 from the Commonwealth Court where it comes back up.

01:53 - 42.282 It's discretionary, that's the difference.

01:53 - 45.084 But the question becomes for me,

01:53 - 48.788 the issue as presented is

01:53 - 52.325 did the Commonwealth Court abuse its discretion

01:53 - 56.462 in remanding the case to allow the State Police

01:53 - 01.601 to submit additional evidence using the metaphorical apple?

01:54 - 05.104 I believe there's been bites, but we're now at the core.

01:54 - 07.040 What is the remedy?

01:54 - 11.244 If this court is to find that the Commonwealth Court abused

01:54 - 14.948 its discretion, what you believe the appropriate remedy be?

01:54 - 15.648 Is it

01:54 - 17.617 that we just decide that you've never met

01:54 - 19.986 your burden and permit the production,

01:54 - 22.689 or does it go back with the specific instruction

01:54 - 24.357 that Commonwealth Court

01:54 - 28.761 is to review the entire record a.k.a the findings of the OHA?

01:54 - 31.631 We have a position on that.

01:54 - 33.800 I know your position is there's no abuse.

01:54 - 35.335 I think you're gathering that.

01:54 - 37.270 There's a feeling of abuse.

01:54 - 39.038 Share with me

01:54 - 40.473 what is the remedy?

01:54 - 43.076 Should this court find abuse?

01:54 - 46.946 Your Honor, to the extent and you're right, I would I

01:54 - 48.781 to extend the premise for

01:54 - 51.017 for this hypothetical is that there is abuse of discretion.

01:54 - 53.353 I would think that our position

01:54 - 55.255 would be that the appropriate remedy

01:54 - 57.290 would be to send it back to the Commonwealth Court

01:54 - 00.059 with specific instructions to review the record.

01:55 - 02.195 As Your Honor suggested, perhaps conduct

01:55 - 04.197 the evidentiary hearing within a short time frame

01:55 - 07.333 before the Commonwealth Court and for them to dispose

01:55 - 09.302 of the matter in that court

01:55 - 13.306 with very controlled timeframe, I believe that would address

01:55 - 16.042 the concerns that,

01:55 - 17.677 you know, I certainly wouldn't presume to speak to their side.

01:55 - 18.878 I think that would strike a balance

01:55 - 20.647 in addressing the concerns of PSP.

01:55 - 22.916 I think the well documented concerns of judge presiding

01:55 - 27.420 can and will also respecting the need for a disposition

01:55 - 28.554 in this matter and concluding it.

01:55 - 29.956 I certainly I think that would be

01:55 - 32.258 where we would fall, Your Honor. Thank you. Counsel.

01:55 - 34.527 You know, one of the things that

01:55 - 37.096 concern me about the Commonwealth Court's

01:55 - 42.235 decision in this case, they said the same thing

01:55 - 45.605 about every single response in the affidavit.

01:55 - 47.106 I mean, it wasn't

01:55 - 49.943 as though they sort of narrowed down the problem

01:55 - 54.247 to one specific policy that stated

01:55 - 58.217 in the eight or nine, six, nine or whatever its title

01:55 - 03.389 it was, every single policy, every single response to it.

01:56 - 05.525 They said the evidence is insufficient,

01:56 - 08.461 the evidence is insufficient, the evidence is insufficient.

01:56 - 12.799 Now, we're all lawyers I mean, that that has a

01:56 - 15.401 that has an evidentiary meaning to it.

01:56 - 18.738 And that's really what I'm struggling with here.

01:56 - 20.106 I mean, if a court

01:56 - 22.108 that the

01:56 - 25.011 evidence is insufficient to meet your burden,

01:56 - 27.814 a very low burden, isn't that the end of the case?

01:56 - 31.584 You are, I think, as a general proposition or

01:56 - 33.086 as a general proposition.

01:56 - 35.855 I would agree with that, Madam Justice.

01:56 - 38.358 But I think I would make I think I would make two points

01:56 - 41.260 candidly, I when I read Judge Susanna

01:56 - 43.997 Fasano Cannon's opinion several times,

01:56 - 46.866 I was also struck that it essentially says

01:56 - 49.302 it makes the same observations.

01:56 - 51.704 I noted the same thing are.

01:56 - 54.874 But I think when you read her concluding remarks about,

01:56 - 58.845 you know, the affiant walking a fine line, I took it to be

01:56 - 01.814 not that the state police weren't credible

01:57 - 03.349 or that there was anything truthful

01:57 - 05.551 that simply that frankly, ma'am, we provided to provide

01:57 - 09.155 we had simply failed to provide enough specific detail

01:57 - 11.357 that we had failed to take that one extra step

01:57 - 15.228 to create that nexus that is necessary between what

01:57 - 18.431 and so in that vein, I don't think we should read

01:57 - 21.234 too much into this in some ways the repetitive nature of it,

01:57 - 22.802 because I think it's pointing to the fact

01:57 - 25.204 that the state police failed to provide sufficient detail

01:57 - 27.206 we thought we had, but we respect that ruling.

01:57 - 30.043 It's now the law, the case that we did.

01:57 - 32.712 But I think also, you know, that's where

01:57 - 36.015 the need for recognizing the public safety exemption.

01:57 - 37.316 I think that's why it's reasonable,

01:57 - 39.285 why it's not an abuse of discretion

01:57 - 41.354 for the court to allow further evidence.

01:57 - 43.656 And I think that is ultimately to justice.

01:57 - 45.958 Tara's question are the state police's point?

01:57 - 48.127 It's not unreasonable on these circumstances

01:57 - 49.729 to allow further evidence. Okay.

01:57 - 51.764 I think about the evidence as a whole.

01:57 - 55.001 The ACLU submitted

01:57 - 58.905 their own affidavit attached very to, as I understand

01:57 - 02.275 it, were policies from a variety of other

01:58 - 04.343 police jurisdictions.

01:58 - 05.645 And I believe so

01:58 - 08.347 Adelphia was one of them, if I recall correctly.

01:58 - 09.816 I believe. Correct, yes.

01:58 - 12.351 And of course, we're at a total disadvantage here.

01:58 - 15.088 And I don't know if the Commonwealth Committees

01:58 - 19.158 and looked at those affidavits, but if if those other policies

01:58 - 24.497 of other police departments are not only similar to but contain

01:58 - 29.402 essentially the same protocols, what do you do with that?

01:58 - 30.970 I mean,

01:58 - 34.140 because I don't see anything in what we have before us,

01:58 - 36.242 that which suggests to me that the Commonwealth Court

01:58 - 38.444 considered that other information

01:58 - 40.379 because if they considered

01:58 - 42.882 that other information in the policies were

01:58 - 45.885 sufficiently the same, that it shed

01:58 - 49.388 light on the concerns of law enforcement.

01:58 - 53.359 Doesn't doesn't that play into the equation of,

01:58 - 54.794 you know, what the

01:58 - 58.231 appropriate outcome is?

01:58 - 00.266 Shouldn't we tell the Commonwealth Court

01:59 - 01.667 if we send this back, take a look

01:59 - 03.870 at those other affidavits if you have it.

01:59 - 08.374 I don't as a premise, Madam Justice,

01:59 - 11.344 I don't disagree that that would might be reasonable.

01:59 - 15.581 I think I think that as far as a response goes,

01:59 - 18.684 you know, obviously, I'm not the expert as far

01:59 - 21.320 as the concerns of the PSP in our specific policy.

01:59 - 23.890 Certainly, I think drawing parallels

01:59 - 25.491 might might be relevant

01:59 - 27.193 and the burden would perhaps be on us to.

01:59 - 29.462 Respond to that and explain why our policy is different.

01:59 - 30.696 And even if it's

01:59 - 32.665 largely similar, if there's subtle differences,

01:59 - 34.901 that would be on us to prove those differences.

01:59 - 37.336 But I would also respectfully point out

01:59 - 42.675 that these are judgment calls, and even if the policies in

01:59 - 46.245 some ways are similar, the fact that Philadelphia

01:59 - 49.282 chooses approach it one way doesn't necessarily mean that

01:59 - 52.585 someone knowing specifically how the Pennsylvania State

01:59 - 56.322 Police approach something still doesn't have value.

01:59 - 56.689 The fact

01:59 - 56.956 that it's

01:59 - 00.092 the PSP policy in and of itself I think is meaningful

02:00 - 00.793 to an extent.

02:00 - 04.497 That sounds, if I may, counsel that sounds again,

02:00 - 06.832 you know, like a colorable,

02:00 - 10.136 but none of that was put before the Commonwealth Court.

02:00 - 13.873 In other words, PSP stood on the air after

02:00 - 16.809 we sent this back and said No, that's not going to cut it.

02:00 - 19.579 And it went back to the Commonwealth Court.

02:00 - 22.281 Then PSP chose to just stick,

02:00 - 24.250 in other words, stand on the Burge affidavit.

02:00 - 26.252 It says This is where we are

02:00 - 26.652 right

02:00 - 29.322 basically challenging the Commonwealth Court to say, okay,

02:00 - 31.224 we're disclosing this after five years.

02:00 - 33.492 By that point it was five years probably.

02:00 - 35.261 Now it's six.

02:00 - 39.398 But instead it seems like the Commonwealth Court, you know,

02:00 - 43.603 went a step better for the PSP and gave the PSP

02:00 - 44.670 another bite at the apple,

02:00 - 47.473 even though the PSP didn't take the opportunity

02:00 - 50.843 to develop anything about

02:00 - 54.080 what you know, what you're saying about like

02:00 - 55.514 why, for example, it's different

02:00 - 57.483 than Philadelphia or anything else.

02:00 - 58.851 It didn't happen.

02:00 - 01.654 So that's the piece that I keep coming back to here.

02:01 - 04.357 It's not it.

02:01 - 05.358 It doesn't

02:01 - 08.127 cohere for me.

02:01 - 10.730 What the basis would be for the Commonwealth Court to say,

02:01 - 13.933 you know, fine, we're just going to send it back to you

02:01 - 17.203 or do this all over again because it makes it like,

02:01 - 19.171 you know, one of those terrible wheels

02:01 - 21.941 for people requesting things under the right to know law.

02:01 - 25.278 And that seems to me, contrary to what the general Assembly

02:01 - 29.382 said in this statute, which is, you know, where we are here.

02:01 - 30.616 Do you want to address that?

02:01 - 31.984 And then we're going to wrap this up.

02:01 - 32.852 Yes, Your Honor. Thank you.

02:01 - 35.521 At a higher level, I don't

02:01 - 37.089 disagree that that's a concern just as well.

02:01 - 39.892 But I think your point is well taken

02:01 - 43.963 at a higher level, specifically as to this case,

02:01 - 45.598 I would simply

02:01 - 46.332 stand on what I said

02:01 - 47.333 before, Your Honor, which is that

02:01 - 49.802 I believe we believe the affidavit was sufficient

02:01 - 52.071 and it wouldn't

02:01 - 53.973 I don't know that it would necessarily make much sense

02:01 - 57.043 for us to try to add evidence when we believed

02:01 - 58.210 we had met our burden

02:01 - 00.946 the first time around, recognizing that we had not.

02:02 - 03.883 You know, I think this is a simple scope of remand case.

02:02 - 05.785 And the the Commonwealth Court

02:02 - 08.054 didn't act manifestly unreasonably.

02:02 - 10.556 They weren't contrary to law and they didn't show bias or well.

02:02 - 13.392 So I think they were within their discretion. Okay.

02:02 - 15.361 We understand your arguments.

02:02 - 17.730 Well, well argued on both sides. Thank you.

02:02 - 20.433 Thank you. We're going to take a ten minute break.

02:02 - 25.838 And when we come back, we'll hear Salzburg versus man.

02:02 - 29.942 The next case that we will hear today is Salzburg versus Ban.

02:02 - 34.613 Miss Salzburg worked for Drexel University for six years.

02:02 - 37.917 She was terminated for unsatisfactory performance.

02:02 - 41.754 She subsequently sued her supervisor and employer,

02:02 - 45.558 alleging a claim for tortious interference with a contract.

02:02 - 46.792 She claims she had a

02:02 - 49.795 contractual relationship with her employer, Drexel,

02:02 - 51.731 and that her supervisor, Ms..

02:02 - 53.966 Mann, interfered with it

02:02 - 57.403 in the court of Common Pleas, the supervisor and employer

02:02 - 59.605 filed a motion for summary judgment,

02:02 - 02.375 which the court ultimately granted, thereby

02:03 - 05.978 ending the case before and without a trial. Ms..

02:03 - 07.580 Salzburg filed an appeal

02:03 - 10.816 and the Superior Court affirmed the trial court's decision.

02:03 - 14.820 The issue before the court today is whether Miss Salzburg

02:03 - 16.055 was at will.

02:03 - 20.493 EMPLOYEE one That could be fired for any reason or no reason

02:03 - 22.828 at all, so long as it's not an illegal reason

02:03 - 24.330 like discrimination.

02:03 - 25.297 Whether that

02:03 - 28.434 that she cannot bring a claim for tortious interference

02:03 - 31.771 with a contract under Pennsylvania law, a claim

02:03 - 34.774 for tortious interference with a contract requires,

02:03 - 38.077 among other things, a contractual relationship

02:03 - 41.313 with between the plaintiff and another party.

02:03 - 44.950 Ms.. Salzburg argues that the fact that she was an at

02:03 - 49.188 will employee does not defeat a tortious interference claim.

02:03 - 51.290 The tortious interference claim,

02:03 - 53.592 according to her can and should survive

02:03 - 57.463 even the contract at issue can be terminated by the parties.

02:03 - 00.533 In response, the supervisor argues

02:04 - 02.301 that the Pennsylvania Supreme Court

02:04 - 05.638 has never recognized a claim for tortious interference

02:04 - 06.806 with a contract

02:04 - 09.942 in the context of an at will employment relationship.

02:04 - 14.146 Because the employee was at will, there was no contract

02:04 - 17.483 and therefore there could be no interference with a contract.

02:04 - 24.924 Let's go ahead and hear those arguments. Of

02:04 - 26.292 course.

02:04 - 27.993 Back in session.

02:04 - 34.600 For us over the.

02:04 - 38.237 Sulfur over

02:04 - 41.574 here at the store is Charlie Parker.

02:04 - 45.444 Yes. Good morning.

02:04 - 47.480 Is it still morning? Yes. Yes.

02:04 - 48.481 Good morning.

02:04 - 52.017 Good morning to you and good morning to all of you.

02:04 - 54.520 Just a brief summary, if I may.

02:04 - 56.355 Let me give a brief summary first.

02:04 - 57.823 If don't need, you can stay up there.

02:04 - 00.259 That's fine. It's short. It's very short.

02:05 - 02.228 In this case, we granted allowance

02:05 - 05.397 appeal to determine whether and at will employee

02:05 - 08.667 whose employee employment was was terminated

02:05 - 11.570 may file suit against a supervisor

02:05 - 14.507 for tortious interference with contractual relations

02:05 - 18.911 pursuant to section 766 of the restatement

02:05 - 22.515 second of torts, please proceed.

02:05 - 23.849 Thank you, Your Honor.

02:05 - 28.120 Please forgive me if my voice is a bit croaky.

02:05 - 31.724 Currently, of course, Pennsylvania does not recognize

02:05 - 35.494 such a course of action.

02:05 - 40.132 My client cannot file an action against the supervisor

02:05 - 43.235 who maliciously terminated her,

02:05 - 46.272 terminated her because of her own

02:05 - 49.642 animus, terminated her, not because

02:05 - 53.946 the company requested that she terminate Mr. Mann

02:05 - 57.983 terminated her

02:05 - 01.253 because she had the capacity and opportunity

02:06 - 04.423 to directly interfere

02:06 - 07.393 with my client's contract.

02:06 - 10.229 That contract being an employment contract

02:06 - 12.765 and that interference being

02:06 - 15.601 false

02:06 - 19.204 representations regarding my client's employment,

02:06 - 23.475 regarding her

02:06 - 25.244 at work,

02:06 - 28.847 and ultimately the creation of a paper trail

02:06 - 30.683 that caused her to be terminated.

02:06 - 33.886 What did what did her conduct this man's conduct

02:06 - 36.655 interfere with it?

02:06 - 40.392 Well, you all know what it did was it created

02:06 - 44.730 an entire paper trail that ultimately

02:06 - 46.532 led to her termination.

02:06 - 49.134 So she was first put on the performance improvement plan

02:06 - 51.136 and then she was terminated.

02:06 - 52.905 And this at a time

02:06 - 55.574 when she had received stellar reviews,

02:06 - 58.043 when she had done everything she was supposed to do.

02:06 - 03.916 And in fact, even Ms..

02:07 - 05.017 Mann's supervisor

02:07 - 08.621 said that this man was acting in a bizarre fashion.

02:07 - 12.424 But my question is, what did that conduct by Ms..

02:07 - 15.461 Mann act to interfere with?

02:07 - 17.262 There was no you.

02:07 - 18.864 There was no contract.

02:07 - 21.467 This was an atwill employment.

02:07 - 22.234 Is that correct?

02:07 - 24.303 Yes, Your Honor.

02:07 - 25.004 But if I.

02:07 - 28.907 May. Yes, of course.

02:07 - 31.243 In drilling down on this issue,

02:07 - 35.381 the case law is not

02:07 - 38.550 very explanatory as to why Pennsylvania

02:07 - 41.053 has adopted this particular approach.

02:07 - 45.491 Which particular the the approach it has now on it.

02:07 - 47.259 Well, employment. Yes.

02:07 - 50.963 And that there is no course of action on the part of

02:07 - 53.899 on the part of my client.

02:07 - 55.567 Because there is no contract.

02:07 - 00.873 So that's what I was coming to.

02:08 - 03.742 The way Pennsylvania looks at

02:08 - 10.883 this scenario is to assume that the supervisor is acting

02:08 - 15.454 on behalf of the corporation or the employer all the time.

02:08 - 19.591 It doesn't matter if that supervisor is acting

02:08 - 23.095 ultra vires or it's malicious or vindictive.

02:08 - 25.998 Pennsylvania law does not recognize

02:08 - 30.102 that, has never recognized it.

02:08 - 33.806 And what I am asking the court to do

02:08 - 35.541 is absolutely recognize it.

02:08 - 41.213 And for this reason, Pennsylvania law

02:08 - 46.085 recognizes that an employment contract and I use the term

02:08 - 49.688 contract can be interfered with by a third party.

02:08 - 51.857 Why is that a contract?

02:08 - 55.394 It's a contract because there is a quid pro quo.

02:08 - 58.530 The worker works and gets paid

02:08 - 01.533 and the employee gets the benefit of the.

02:09 - 02.434 Of the work.

02:09 - 05.671 But isn't the essence of an atwill employment?

02:09 - 06.505 And maybe I'm wrong.

02:09 - 08.140 Maybe you can clarify this for me.

02:09 - 12.010 Counsel isn't the essence of an ATWILL employment relationship

02:09 - 15.514 the fact that there is no

02:09 - 19.818 actual contract and that the employer is free

02:09 - 23.655 to discharge the employee at any time for any reason

02:09 - 25.491 other than a discriminatory reason?

02:09 - 26.859 That's true, Your Honor.

02:09 - 27.793 But if I may.

02:09 - 30.763 Yes, in continuing with the

02:09 - 36.735 view of Pennsylvania law that

02:09 - 40.606 the supervisor is always the agent of the corporation

02:09 - 44.643 or the employee, it means effectively

02:09 - 47.846 that the corporation or the or the employer

02:09 - 52.217 has the ability to terminate the employee at will.

02:09 - 55.554 That's exactly right, because the agent is no more

02:09 - 58.991 than a mouthpiece for the corporation or for the employer.

02:10 - 03.228 However,

02:10 - 07.466 if the contract was interfered with by a third

02:10 - 10.502 party, Pennsylvania law recognizes that.

02:10 - 12.971 There's a contract. Yes, it recognizes

02:10 - 15.374 there would be a course of action.

02:10 - 16.842 So the question is,

02:10 - 20.579 does there come a time

02:10 - 24.316 when a supervisor

02:10 - 26.051 acting on her own behalf,

02:10 - 29.488 maliciously and with vindictiveness, becomes

02:10 - 33.425 de facto a third party, in a sense,

02:10 - 37.296 a third party, because she is not acting on

02:10 - 39.331 behalf of the corporation or the employer.

02:10 - 42.801 She's acting on her own behalf just as a third party would act.

02:10 - 46.038 And from that standpoint,

02:10 - 49.208 I would say that and of course there are other

02:10 - 52.744 standpoints as well, but from that standpoint, at least,

02:10 - 58.584 it's my belief that Pennsylvania should recognize that conduct

02:10 - 03.388 for what it is and allow the employee

02:11 - 07.392 who is the victim of that maliciousness and vindictiveness

02:11 - 11.063 to file a lawsuit against her.

02:11 - 12.331 The situation.

02:11 - 13.198 Can I ask you a question?

02:11 - 13.632 I'm sorry.

02:11 - 14.533 Can an employer

02:11 - 18.837 maliciously and vindictively fire an at will employee?

02:11 - 22.274 I'm sorry, but I don't know.

02:11 - 25.510 So how can an employer

02:11 - 27.846 maliciously and vindictively

02:11 - 31.617 fire an Atwell employee?

02:11 - 33.952 And I think I think they can.

02:11 - 37.422 Okay, so. So you are draw.

02:11 - 40.692 So when an employer vests, an employee

02:11 - 43.562 with the discretion to hire and fire.

02:11 - 47.299 Your view would be although the employer itself

02:11 - 50.569 can maliciously convict actively fire fire employee,

02:11 - 53.705 the supervisor vested with the authority to fire

02:11 - 56.074 can't maliciously and vindictively fire.

02:11 - 59.111 I would say

02:11 - 02.381 it's not that they can't maliciously fire.

02:12 - 06.752 I think it's more like but for the interference

02:12 - 10.088 of that malicious and vindictive supervisor,

02:12 - 14.393 the employee would still be employed.

02:12 - 16.261 And I think that's the notion that.

02:12 - 17.296 Can I follow up on that?

02:12 - 19.464 Because I don't know.

02:12 - 23.535 I mean, I'm sorry to that you have with the chief justice,

02:12 - 25.771 there's just no contract here to interfere with.

02:12 - 30.142 But why does it in your client have a an action for defamation?

02:12 - 32.311 I'm sorry for defamation.

02:12 - 34.579 Why doesn't she have an action for defamation?

02:12 - 38.884 It's not I mean, I don't know the extremities of that comments

02:12 - 40.686 that were made or anything of that nature.

02:12 - 43.588 But it's possible that those comments are privileged

02:12 - 46.692 coming as they do in the employment context.

02:12 - 49.928 But it's a long time ago, so I'm not sure.

02:12 - 52.965 But this is the the

02:12 - 57.002 justices here.

02:12 - 00.405 Some of them are saying there is no contract.

02:13 - 02.441 There is a contract.

02:13 - 06.411 The fact that the the fact that that contract can be ended

02:13 - 10.482 at the will of either the employer or employee

02:13 - 13.018 does not mean there is no contract. There is.

02:13 - 16.054 Do you have any Pennsylvania cases that say in that,

02:13 - 18.523 well, employment relationship is a contract.

02:13 - 20.892 Doesn't that will employer.

02:13 - 21.626 A do you have any

02:13 - 25.197 Pennsylvania cases that say that what you're suggesting

02:13 - 30.302 that at at will employment relationship is a contract? Yes.

02:13 - 31.970 You only do

02:13 - 34.573 there is case law in that.

02:13 - 38.043 And I believe it's quoted in the brief.

02:13 - 39.745 What counsel

02:13 - 42.748 which quoted in the brief is

02:13 - 46.284 restatement setting towards section 766 with some

02:13 - 50.322 implication that in all barracks we adopted that in toto.

02:13 - 54.126 I don't know of this Court ever adopting

02:13 - 57.462 a restatement section in toto of this nature.

02:13 - 01.133 I mean, we generally adopt section by section, correct?

02:14 - 04.002 Granted, 766

02:14 - 07.005 G said she should include

02:14 - 10.642 at will situations but we've never adopted.

02:14 - 12.444 Gee, I understand

02:14 - 16.915 because in Pennsylvania it's not a contract.

02:14 - 20.552 I mean, you could arguably say you have a contract for the day.

02:14 - 22.821 So somebody shows up in the morning

02:14 - 24.022 and you work the full day.

02:14 - 25.757 You're entitled to be paid for that day

02:14 - 27.592 because that's what you agreed to.

02:14 - 30.462 But at the end of that day, there's no longer

02:14 - 33.432 a binding contractual relationship.

02:14 - 35.133 That's why I think we're. Still if.

02:14 - 37.402 There was no binding relationship, Your Honor,

02:14 - 40.972 then the employee could not sue for discrimination.

02:14 - 42.074 That's a different issue.

02:14 - 44.142 That's an employment at.

02:14 - 47.112 Well, it's an exception to well.

02:14 - 50.949 And indeed in your honor, indeed, if a third party,

02:14 - 54.853 not the supervisor, interfered with the

02:14 - 58.623 employer and relationship

02:14 - 00.826 between the employer and the employee,

02:15 - 03.962 that employee would have a cause of action

02:15 - 05.397 against that third party.

02:15 - 10.402 This recognized in Pennsylvania and the defense of that case.

02:15 - 13.338 Sorry, what is that case that you're referring to?

02:15 - 16.641 I'm referring to a situation, for example,

02:15 - 19.744 perhaps there is a disgruntled relative

02:15 - 24.749 who decides to interfere in the contract between

02:15 - 28.520 the employer and employee and

02:15 - 33.725 maybe says certain things about the employee

02:15 - 36.461 that are not right, that are incorrect,

02:15 - 38.830 and the employee gets terminated.

02:15 - 41.500 But that employee can file an action

02:15 - 44.603 against that third party for having lost her job.

02:15 - 47.005 The name of that case that you're referring to,

02:15 - 50.142 what is the citation in the case that you're referring

02:15 - 51.776 for that proposition?

02:15 - 54.379 The there is no case that I,

02:15 - 59.284 I cited to because I felt that that issue

02:16 - 03.221 was more for argument than anything else, because.

02:16 - 05.323 Arguing for an extension of the law.

02:16 - 07.692 Is that correct? Yes, that's correct.

02:16 - 10.862 And simply this that

02:16 - 19.471 there are times

02:16 - 22.474 when a supervisor does act

02:16 - 26.278 on his or her own agenda, could be envy,

02:16 - 29.981 could be maliciousness, it could be fear

02:16 - 32.651 that that employee is going to be promoted

02:16 - 36.821 over the supervisor.

02:16 - 39.191 And the supervisor

02:16 - 42.794 maliciously creates a record.

02:16 - 46.131 Sounds like defamation.

02:16 - 51.703 Well, it may well be defamation as well.

02:16 - 55.273 It may well be defamation, but it is

02:16 - 59.244 that's not the scope in a respect to me.

02:16 - 00.979 That's that's not your argument.

02:17 - 03.715 Of my argument.

02:17 - 08.420 Other jurisdictions have recognized

02:17 - 14.092 the ability of the employee to file such an action.

02:17 - 17.696 And I would just say that it seems like an anomaly

02:17 - 20.332 in a way to be able to

02:17 - 25.670 permit a third party that has nothing to do

02:17 - 28.974 with the employment relationship to be able to

02:17 - 32.677 interfere and then be sued.

02:17 - 35.947 Whereas the supervisor is assumed to be

02:17 - 40.885 an agent of the

02:17 - 43.622 of the employer and that is where

02:17 - 46.091 the issue of will comes in.

02:17 - 48.193 Because it's true, obviously

02:17 - 51.263 an employer in Pennsylvania

02:17 - 54.799 can terminate an employee training visa or no reason,

02:17 - 58.570 absolutely exceptions.

02:17 - 01.339 And the

02:18 - 06.778 the essence of my argument is if the

02:18 - 10.181 if the supervisor is always an agent,

02:18 - 14.352 then the corporation is de facto

02:18 - 17.289 terminating the employee through the agent.

02:18 - 20.091 But if the agent is acting ultra vires

02:18 - 22.227 and not in the interests of the corporation

02:18 - 26.131 and acting on her own behalf

02:18 - 29.801 and maliciously creating a record that causes

02:18 - 33.672 the employer to terminate her, then that

02:18 - 37.575 party is no different from a third party,

02:18 - 40.879 an outside party, no different and should be treated,

02:18 - 43.815 no differently. Well, let's let's explore that.

02:18 - 48.653 If in this case, let's take a hypothetical.

02:18 - 51.790 If it was a neighbor, if it were a neighbor

02:18 - 54.826 who was not employed by the same company,

02:18 - 59.464 who just plain didn't like the employee and started

02:18 - 04.536 making calls to the supervisor managers of the company,

02:19 - 07.539 I see saying

02:19 - 09.974 saying negative things about the employee.

02:19 - 12.711 I see the defamation action there.

02:19 - 16.881 Do you also see an interference, tortious interference action?

02:19 - 18.583 I do.

02:19 - 22.420 And what would be the basis what would be the.

02:19 - 23.021 Well.

02:19 - 24.556 That would have a. Precedent. For this?

02:19 - 26.691 They would have to be damages, of course.

02:19 - 29.861 So if the employee continues their employment, let's.

02:19 - 32.130 Say the employee and. Then and then the employee and.

02:19 - 34.165 Well, yes,

02:19 - 38.403 because that's a recognized course of in Pennsylvania.

02:19 - 41.239 In an at will contract. Yes.

02:19 - 42.440 You a that.

02:19 - 43.908 Relationship. Yes.

02:19 - 45.877 And that will contract.

02:19 - 48.179 The only reason why

02:19 - 51.683 the ATWILL issue has come into the caselaw

02:19 - 55.620 is because the supervisor

02:19 - 58.289 is an agent of the employer.

02:19 - 02.193 And that's why you have this rubric where it says

02:20 - 06.131 the employee could be terminated at will.

02:20 - 08.800 Yeah, yeah, yeah, the void could be terminated.

02:20 - 09.934 It will. Counsel.

02:20 - 11.002 Oh, I apologize to you.

02:20 - 15.039 Are you are you is it your position that our decision

02:20 - 17.842 in Gary support your support your argument.

02:20 - 19.210 I'm sorry

02:20 - 22.981 what is your stance with regard to Gary versus US Steel because

02:20 - 27.419 the quote that I've taken out is Gary versus Steel up page

02:20 - 30.021 177 was The courts of this Commonwealth

02:20 - 33.591 have held that both employers and employees are entitled

02:20 - 35.527 to freedom from meddling from third

02:20 - 39.431 by third, even where the employment is at will.

02:20 - 40.965 Is that what you're arguing.

02:20 - 44.702 About doing that?

02:20 - 48.640 Yes. An action can be taken against the third party.

02:20 - 51.743 If that third party interferes in the employment contract

02:20 - 52.811 between the employer

02:20 - 57.081 and employee and the employee suffers damages. Yes.

02:20 - 59.851 And what I'm trying to say is that

02:21 - 04.155 the case law in Pennsylvania that deals with the ATWILL issue

02:21 - 08.359 deals with it as in that will issue because it imputes

02:21 - 12.130 authority

02:21 - 15.500 of the supervisor to do what he or she does,

02:21 - 19.804 irrespective of whether the irrespective of whether the

02:21 - 24.409 supervisor is acting on her own behalf maliciously or not.

02:21 - 28.513 So as my understanding is that you agree that in

02:21 - 32.016 the decision of Adler this court accepted

02:21 - 36.421 restatement 767 66 except comment

02:21 - 40.325 and it's your request pursuant to the language of Geary,

02:21 - 42.360 which is a 1974 Supreme Court case

02:21 - 46.264 that we should accept comment and make that will employees

02:21 - 49.300 have it subject are third party

02:21 - 51.536 subject to interference.

02:21 - 53.738 Yes, Your Honor, but only

02:21 - 58.443 only under certain conditions.

02:21 - 00.712 So with specific burdens

02:22 - 04.015 that that employer would have to reach before

02:22 - 06.551 they would be able to sustain that course of action.

02:22 - 09.454 First, they would have to show that they were good employee

02:22 - 13.424 and that the company had no reason to terminate fact.

02:22 - 15.493 The contrary, then they would have to show

02:22 - 19.664 some motive on the part of the supervisor

02:22 - 21.833 and an improper motive

02:22 - 24.002 on the part of the supervisor interfering.

02:22 - 27.372 And then they would have to show that the supervisor

02:22 - 31.175 caused, the employer to terminate the employee,

02:22 - 33.344 that's a pretty high burden

02:22 - 35.346 and it probably doesn't happen very often.

02:22 - 38.049 And what we're talking about is actually pretty rare.

02:22 - 43.187 But the employee employee should be permitted to at least

02:22 - 47.625 bring that course of action should the circumstances

02:22 - 49.861 be. As I said.

02:22 - 52.063 I'm not sure it's as rare as you think it is.

02:22 - 55.767 You know, reviews happen all the time by supervisors,

02:22 - 57.869 and reviews lead the termination.

02:22 - 00.038 And in the unemployment compensation area,

02:23 - 02.373 when you're fighting a willful misconduct termination,

02:23 - 06.110 part of the factual development in those records is, you know,

02:23 - 07.211 the supervisor was out.

02:23 - 10.081 Get me. The supervisor lied. It's not true.

02:23 - 12.283 I was an otherwise good employee, all that stuff.

02:23 - 16.454 Yeah, there's a big there's a big chunk of factual scenarios

02:23 - 18.556 that we go where you want us to go.

02:23 - 20.592 We're going to be opening up civil litigation.

02:23 - 21.526 No, I don't think so.

02:23 - 24.896 You ought to, because

02:23 - 30.969 employees do, as you say, say all the time.

02:23 - 32.837 He was out to get me this and that.

02:23 - 36.341 But that is not a statement of personal animus,

02:23 - 40.945 and there is no basis for personal animus in such a case.

02:23 - 45.216 You would have to show that the super visor

02:23 - 47.885 had a personal,

02:23 - 51.456 selfish reason for terminating that employee.

02:23 - 52.357 That was

02:23 - 58.329 not in the not in the company's interest

02:23 - 01.165 and would not have been

02:24 - 07.238 accepted by the company.

02:24 - 10.642 In other words, a clear abuse of authority

02:24 - 14.712 for the vindictive and malicious purposes.

02:24 - 19.751 I think that's a high burden of proof.

02:24 - 23.621 Counselor, you did not argue based on Gary versus U.S.

02:24 - 25.857 Steel in your brief, is that correct? I'm sorry.

02:24 - 31.963 You did not argue based on the case of Gary versus U.S.

02:24 - 33.431 Steel in your brief.

02:24 - 34.399 I did not.

02:24 - 36.868 And I would just add just one more thing.

02:24 - 40.838 And that is, if you look at

02:24 - 44.142 an employee's ability

02:24 - 47.812 to file a lawsuit against,

02:24 - 50.682 someone who has interfered with prospective

02:24 - 54.085 employment relations,

02:24 - 56.454 that course of action is recognized.

02:24 - 59.023 And the answer the question is why?

02:24 - 02.326 And the answer is because that employee

02:25 - 05.196 is not yet in an ATWILL relationship.

02:25 - 09.567 Therefore, it's recognized but it seems paradoxical

02:25 - 14.072 that the employee could file against a party

02:25 - 18.743 who's interfered with prospective

02:25 - 21.079 employment relationship between the employer

02:25 - 23.981 and the employee but not be able to file

02:25 - 28.052 the same action once the employee is employed.

02:25 - 30.221 I don't have the Gary case in front of me

02:25 - 32.023 and you didn't address it in your brief,

02:25 - 35.560 but did you say that was that well, relationship?

02:25 - 37.462 Yes, it was.

02:25 - 40.998 And I'm not saying at all in any way, shape or form

02:25 - 44.035 that employees and employers don't have

02:25 - 47.238 unless otherwise

02:25 - 49.073 proven otherwise.

02:25 - 51.042 That's evidence and that will relationship.

02:25 - 52.243 Of course they do.

02:25 - 54.212 But it is a contract

02:25 - 57.882 and it is up to the corporation or the employer to terminate,

02:25 - 02.086 not up to the supervisor to maliciously

02:26 - 04.222 push the corporation to terminate.

02:26 - 06.290 And by the way, the corporation's not liable

02:26 - 08.192 this case. Right. It's a third party.

02:26 - 08.893 And you're

02:26 - 11.462 arguing that with actual malice you should have it.

02:26 - 14.031 Absolutely. Okay. We get your argument. Thank you.

02:26 - 16.768 And the other questions. Okay.

02:26 - 18.069 Let's hear from the appellate

02:26 - 24.876 side.

02:26 - 26.010 Good afternoon, Your Honor.

02:26 - 28.446 Charlene Geddes on behalf of appellate Donna.

02:26 - 33.551 Man, I'd like to begin by saying that I agree with Mr.

02:26 - 37.021 Coleman initial statement that

02:26 - 39.257 appellant concedes outright at the beginning.

02:26 - 41.859 Currently, Pennsylvania law does not recognize

02:26 - 44.028 a cause of action for intentional interference

02:26 - 45.930 with contractual relations in the context

02:26 - 49.433 of a currently existing at employment relationship.

02:26 - 50.268 And the reason for that

02:26 - 52.537 makes sense because Pennsylvania has

02:26 - 56.607 long recognized the presumption of equal employment.

02:26 - 00.511 The Superior Court's pronouncement 25 years ago

02:27 - 03.581 in Tennessee and 12 years ago, as in Horn makes clear

02:27 - 07.051 in is established precedent on which the Lower Court

02:27 - 08.986 and the Superior Court

02:27 - 10.655 affirmed the grant of summary judgment

02:27 - 13.791 in favor of Donna mann that this cause of action

02:27 - 15.593 simply cannot lie in the context

02:27 - 17.562 of an equal employment relationship.

02:27 - 21.365 While there have been different panels of the Superior Court

02:27 - 22.934 that have made. Reference.

02:27 - 25.536 To the possibility of a cause of action for

02:27 - 29.040 interference with a prospective or current rather

02:27 - 32.343 atwill employment relationship, even though at will

02:27 - 35.847 those cases are not the case at hand.

02:27 - 39.483 Yandle made reference to that Yandle involved a

02:27 - 41.686 prospective employment relationship.

02:27 - 44.622 Salzberg involved a currently existing

02:27 - 45.957 Atwell employment relationship.

02:27 - 48.092 Occurring.

02:27 - 51.162 Also made reference to Common G

02:27 - 57.335 as Justice Donahue suggested and as made clear in Justice,

02:27 - 01.272 Monday's dissent in Horne,

02:28 - 04.075 Common G has not been expressly adopted

02:28 - 05.743 by the Pennsylvania Supreme Court.

02:28 - 06.777 Had it been adopted

02:28 - 08.079 by the Pennsylvania Supreme court,

02:28 - 10.181 we would be having a different argument.

02:28 - 13.517 But as it stands today and as it stood at

02:28 - 15.353 the time of Salzburg's filing

02:28 - 18.522 Pennsylvania's Supreme Court, Pennsylvania did not recognize

02:28 - 20.458 and should not recognize

02:28 - 22.426 the cause of action for intentional interference

02:28 - 24.028 with contractual relations in the context

02:28 - 26.631 of a currently existing Atwell employment release.

02:28 - 28.666 Okay, you hit I'm sorry, you hit.

02:28 - 33.170 You hit on the word I'm interested in should because

02:28 - 36.274 your opposing counsel has acknowledged

02:28 - 39.577 that it's not an existing course of action,

02:28 - 43.247 but it should be it should be something that we,

02:28 - 47.451 as the Pennsylvania Supreme Court can decide

02:28 - 51.222 we're going to allow why should should not we

02:28 - 53.925 why shouldn't we do that when he says we should?

02:28 - 55.826 The reason why we shouldn't do that

02:28 - 58.663 is because I am here today, because every instance

02:28 - 00.731 where a supervisor, performance manager,

02:29 - 03.067 someone who reports to him or her,

02:29 - 05.670 we will open the floodgates for litigation of saying

02:29 - 09.206 my supervisor was with my Atwell employment relationship

02:29 - 13.244 by issuing me this corrective action, basing me on this case

02:29 - 15.613 c making a recommendation to terminate me

02:29 - 18.149 if we recognize that cause of action,

02:29 - 21.953 I can assure you that the floodgates of litigation

02:29 - 23.120 will be opened.

02:29 - 25.356 Every single performance action

02:29 - 27.558 that is taken by a supervisor, manager

02:29 - 30.027 or someone in any supervisory authority for that matter,

02:29 - 32.563 will be challenged and brought to the doorstep of the court.

02:29 - 35.933 What he is charged with, what he is suggesting, is

02:29 - 39.036 that you would still need to show actual malice.

02:29 - 43.107 So maybe the floodgates don't open that wide.

02:29 - 46.844 And if you could answer that and also address

02:29 - 49.747 my earlier question to your opposing counsel,

02:29 - 53.084 what if it was a neighbor unemployed by the company

02:29 - 55.619 that made these calls to the supervisor? Okay.

02:29 - 58.022 I will take the first.

02:29 - 02.193 The first, though, I will take the latter question first.

02:30 - 06.497 So if it was a neighbor that perhaps reached out to your

02:30 - 09.066 supervisor and made certain statements

02:30 - 11.068 that caused you to end up getting terminated,

02:30 - 12.603 I think you answered the question yourself.

02:30 - 15.072 That would be a cause of action for defamation.

02:30 - 17.041 We don't have a cause of action defamation here.

02:30 - 18.175 What we had was a course of action

02:30 - 20.277 for intentional infliction of emotional distress,

02:30 - 22.346 which opposing counsel did not

02:30 - 24.815 did not oppose.

02:30 - 26.817 When we filed the motion for summary judgment against.

02:30 - 30.221 So I think if that case, if it were a situation

02:30 - 32.490 where you have a third party not at all

02:30 - 36.660 implicated by the employer, that makes these statements

02:30 - 40.164 to the employer that ultimately gets the employee terminated.

02:30 - 42.967 We're looking at a cause of action for defamation.

02:30 - 44.235 We're not looking at a course of action

02:30 - 45.102 for intentional interferes

02:30 - 47.304 with, the most of intentional interference

02:30 - 48.873 with an equal employment relationship

02:30 - 51.842 because that atwill employment relationship can end tomorrow it

02:30 - 54.178 and it can end because you decide to walk out the door.

02:30 - 56.680 It can end because your employer decides that you know what?

02:30 - 58.482 For no reason at all, as long

02:30 - 00.051 as it's not a discriminatory reason.

02:31 - 02.053 Your employment in today.

02:31 - 05.623 And the other part of my question was your opposing

02:31 - 06.757 counsel says that wouldn't

02:31 - 08.659 open the floodgates because you'd still have

02:31 - 10.594 to prove actual malice.

02:31 - 12.930 So that's not the garden variety case.

02:31 - 14.565 How do you respond to that.

02:31 - 17.568 Well, I think actual malice is something that it would

02:31 - 20.638 necessarily require discovery to get to.

02:31 - 21.338 Right.

02:31 - 24.275 So in the pleading, as we all know.

02:31 - 25.209 There will be.

02:31 - 26.110 You know,

02:31 - 29.280 lots of verbiage from plaintiff's and their counsel,

02:31 - 32.083 you know, suggesting malice, that's suggesting

02:31 - 34.251 malicious action on the part of the supervisor

02:31 - 37.755 to get to the court, the door, the doors of the courthouse.

02:31 - 38.923 It will necessarily

02:31 - 40.091 open the floodgates of litigation

02:31 - 42.359 because whether there was actual malice

02:31 - 43.494 is something that's going to have

02:31 - 45.529 to be ferreted out through discovery.

02:31 - 48.099 Well, can I could I follow up on the chief's question, Counsel?

02:31 - 51.068 The if the floodgates would open,

02:31 - 54.071 why haven't the floodgates already been opened?

02:31 - 58.075 Since there's a we have this odd disconnect that there's

02:31 - 01.846 there is a cause of action available for interference

02:32 - 05.116 with a prospective employment, whether at will or not.

02:32 - 05.649 In other words,

02:32 - 07.451 how does your

02:32 - 10.721 floodgates argument work when the gate

02:32 - 13.924 has already been opened in the prospective setting?

02:32 - 17.528 And in that regard, can you explain to us

02:32 - 22.533 why the common law ought to

02:32 - 26.637 allow in Pennsylvania for the actions

02:32 - 30.341 in the prospective context, but not in the existing context?

02:32 - 32.042 You know, rationalize?

02:32 - 34.011 HENNESSEY For us, in effect.

02:32 - 35.746 I understood and I and I understand

02:32 - 37.348 the limitations of Hennessey,

02:32 - 38.682 obviously, with the current

02:32 - 40.518 existing employment relationship,

02:32 - 42.553 there is a recognition by both parties

02:32 - 45.556 that the relationship could end at any time and for any reason.

02:32 - 47.491 With a prospective. Employment relationship.

02:32 - 49.260 Let's just think about it in the sense

02:32 - 50.060 you receive an offer

02:32 - 50.761 for an employment

02:32 - 52.062 and you're excited about that job

02:32 - 53.831 and you think you're going to get that job.

02:32 - 55.633 And at some.

02:32 - 56.300 Because of some.

02:32 - 58.736 Action of a third party, someone dashes away those hopes

02:32 - 00.971 and you no longer have that job.

02:33 - 04.308 That, according to Hennessey, is actionable, but

02:33 - 08.712 not the scenario where you are currently in the position

02:33 - 11.282 and you understand that you on

02:33 - 12.983 a whim can wake up tomorrow and say,

02:33 - 13.918 I am not interested

02:33 - 15.886 in continuing my employment with this employer

02:33 - 18.122 and your employer can nondiscriminatory

02:33 - 20.257 a non retaliatory we make the same decision.

02:33 - 21.792 If that puts the buddy in the hat.

02:33 - 25.095 Right because the same you would concede counsel

02:33 - 28.465 would you not that the same types of malice

02:33 - 32.570 or the same types of

02:33 - 36.140 intentional interference could occur

02:33 - 40.044 in either setting an prospective or an existing

02:33 - 43.847 at will relationship,

02:33 - 46.016 such that the only thing that would be different

02:33 - 49.720 would be whether the relationship is ongoing

02:33 - 52.289 or only prospective in the future.

02:33 - 53.457 Right.

02:33 - 55.259 I agree. This.

02:33 - 57.861 So I guess just to put a cap on that, then

02:33 - 02.366 why should our why should our law

02:34 - 06.704 allow the that the action to go forward

02:34 - 10.040 when relationship hasn't even begun yet

02:34 - 13.310 and yet not allow it?

02:34 - 16.013 When there is a relationship that's ongoing.

02:34 - 19.283 It shouldn't allow it one because Hennessey said so.

02:34 - 20.951 And Horne also repeated that.

02:34 - 23.821 But I also, to answer your question, say that

02:34 - 27.358 because of the presumption of Atwell employment relationship

02:34 - 29.793 and the recognition that you can leave for no reason

02:34 - 31.061 and your supervisor can

02:34 - 33.130 and your employer can termination for no reason,

02:34 - 35.165 we would not recognize that course of action.

02:34 - 36.033 I have struggled

02:34 - 38.402 with the same issue that Justice Wecht

02:34 - 42.606 has raised with you, and we know what the law says.

02:34 - 45.009 The question is, how does that make sense?

02:34 - 48.379 And the only way I can conceive of it

02:34 - 52.716 making sense is that the offer and acceptance,

02:34 - 55.619 the initial employment arrangement, did

02:34 - 00.457 did constitute a contractual relationship,

02:35 - 04.361 but then when the employment began, it became an at will

02:35 - 05.963 relationship.

02:35 - 08.532 Does that make that makes sense, Your Honor.

02:35 - 10.200 Counsel, can I follow up on that?

02:35 - 11.335 I do that.

02:35 - 14.772 Does this concept of interfering with prospective

02:35 - 17.374 contractual relations at all

02:35 - 19.476 on the

02:35 - 22.279 concept of detrimental reliance

02:35 - 24.315 in those cases?

02:35 - 28.152 Does the plaintiff have to establish that they did

02:35 - 32.089 something detrimental to their current situation?

02:35 - 34.258 Well, I can tell you from the cases

02:35 - 36.293 that I've I've my apologies, Your Honor.

02:35 - 37.661 From the cases that I've reviewed, there

02:35 - 40.964 hasn't been a fulsome discussion as to whether that employee

02:35 - 43.067 has actively. Resigned from.

02:35 - 47.738 Position number eight and then detrimentally relied upon a new.

02:35 - 48.105 That.

02:35 - 50.607 That has always been my understanding

02:35 - 54.345 of the predicate for causes of action

02:35 - 57.181 based upon interference prospective employment

02:35 - 00.484 situations. But I could be wrong.

02:36 - 02.720 Is the fact that you have now agreed

02:36 - 05.923 to accept an offer from a subsequent employer

02:36 - 08.592 and possibly place your initial employment

02:36 - 11.261 in jeopardy or somehow have. Made something else?

02:36 - 13.464 You sold your house. You you've moved.

02:36 - 14.431 You've moved.

02:36 - 17.634 I mean, something of that nature, but I don't know that.

02:36 - 20.838 Counsel, can you share with me what your what logic

02:36 - 24.842 or reasoning is to say that an intentional interference

02:36 - 28.812 in an existing employment relationship

02:36 - 33.817 that results in economic loss should not be actionable.

02:36 - 37.888 Yet we allow the same type of action in a prospective.

02:36 - 42.192 I'm pulling back on the question I but I all you said

02:36 - 45.462 was I agree with the justice and I disagreed with her honor.

02:36 - 47.831 So why don't you explain it to me?

02:36 - 50.100 How, why, what?

02:36 - 52.803 What is your reasoning or basis for?

02:36 - 54.138 If I persuaded Ms..

02:36 - 58.976 Parker and how could I not persuade you?

02:36 - 00.144 I will not answer that question.

02:37 - 03.680 You're very smartly.

02:37 - 06.417 Well, going back to what I initially said is that

02:37 - 08.886 when you're in the current at will employment relationship,

02:37 - 10.220 there is an understanding

02:37 - 12.856 that the relationship can end at any time, if for any reason.

02:37 - 14.558 When you have a prospective

02:37 - 16.326 employment relationship, there's at least

02:37 - 16.960 an understanding

02:37 - 19.930 on the part of the prospective, a hope, a desire

02:37 - 23.000 that you are going to reap the benefits of that new role.

02:37 - 24.067 But if there's a third party

02:37 - 27.838 meddling in that relationship that interferes, why is that?

02:37 - 29.573 Why is that not actionable?

02:37 - 32.476 You use the supervisor, but let's hypothetically remove

02:37 - 33.310 that scenario.

02:37 - 36.113 Let's say it's a coworker that was jealous of you

02:37 - 40.617 for your job because you got the bigger desk.

02:37 - 41.485 Okay.

02:37 - 42.886 If you have a coworker that's jealous of you

02:37 - 43.487 that's meddling

02:37 - 46.356 in your employment relationship, I'm pretty sure that the

02:37 - 48.459 some of the verbiage that's used by

02:37 - 50.093 that coworker is something that can give fodder

02:37 - 51.228 to a defamation claim

02:37 - 53.063 and not necessarily an intention that defendant's claim.

02:37 - 57.134 Oh, it resulted in the termination of you.

02:37 - 00.137 I decided to go out with our boss,

02:38 - 02.673 Justice, Chief Justice Todd.

02:38 - 06.410 And I backs you to give Chief Justice

02:38 - 09.580 Todd and say all these untruths.

02:38 - 11.114 Doesn't matter.

02:38 - 13.317 She fires you.

02:38 - 16.720 You find out that I interfered with your economic.

02:38 - 18.689 Why do you not have an. Action against. Me?

02:38 - 20.724 I do have an action against you for defamation,

02:38 - 23.460 for intentional interference. I don't interfere. It's.

02:38 - 26.163 I just interfered with your.

02:38 - 29.132 You defamed me justice. Let's see.

02:38 - 30.334 I think it's just a start.

02:38 - 32.836 As, for example, Justice Todd has received

02:38 - 34.104 and listen to all of the comments that

02:38 - 35.839 you've made and then made an independent

02:38 - 38.709 as to whether those comments were ones

02:38 - 40.844 that she found to merit my separation.

02:38 - 42.179 What you did was defame me.

02:38 - 45.616 It was a separate my employment and she's allowed to do that

02:38 - 47.050 at any time for any reason.

02:38 - 49.419 You're missing the point that there can be

02:38 - 51.221 several causes of action.

02:38 - 53.757 Granted, you have one action for defamation

02:38 - 56.727 share with me or us. Why?

02:38 - 59.796 Pursuant to 766 comment.

02:38 - 01.832 Gee, I can't.

02:39 - 03.467 You can't have an action.

02:39 - 04.268 Well, under.

02:39 - 06.236 The current of the law under 7/6, that's.

02:39 - 08.405 Why we're here. Which has not been adopted.

02:39 - 10.774 So we can change that current state of the law

02:39 - 15.078 if you give me or leave it, if you give me a rationale,

02:39 - 17.915 not just because, it's not because that's the purpose.

02:39 - 18.282 This is a

02:39 - 21.885 case of first impression whether we're going to adopt G

02:39 - 23.787 And I'm asking you,

02:39 - 26.423 other than saying because you have it doesn't mean

02:39 - 28.025 we're not going to go back in that room

02:39 - 31.929 and do give me a reason why I don't want to comment.

02:39 - 33.630 Gee, when I go back in that room.

02:39 - 35.766 Well, the reason is twofold.

02:39 - 37.901 A, because adopting common G,

02:39 - 39.369 as I mentioned at the beginning, opened

02:39 - 41.004 the floodgates of litigation for any comments

02:39 - 43.740 that are made to a supervisor, and it erodes the principles of.

02:39 - 44.741 Atwell Employment,

02:39 - 47.678 because every you're now tying the hands of an employer

02:39 - 49.513 that any information that they receive

02:39 - 51.181 from wherever they receive it, they can't act.

02:39 - 53.317 Upon litigation a bad thing if they

02:39 - 55.852 it one if it's your

02:39 - 58.455 employment, but two, if it changes

02:39 - 01.959 the way we do business in Pennsylvania for the better,

02:40 - 04.561 because it would stop and prevent

02:40 - 08.098 tortuous interference with other people's

02:40 - 11.301 economic jobs and losses of income.

02:40 - 15.405 So I the world is always falling

02:40 - 17.708 when the caseload goes against the counsel,

02:40 - 21.578 whether it's defense, civil, family, the floodgates.

02:40 - 24.948 It should have a tsunami, but it doesn't.

02:40 - 28.318 So that's a lovely argument, but it's words

02:40 - 29.720 and I appreciate it.

02:40 - 32.322 But in reality, as a practicing trial lawyer

02:40 - 34.291 and a trial and as an appellate,

02:40 - 36.259 I have never seen these floodgates.

02:40 - 38.028 I've been waiting for them.

02:40 - 40.364 That being said, let's assume the floodgates opened.

02:40 - 42.599 So what? That's why we are employed.

02:40 - 46.403 I want to know why we're not going to accept commentary.

02:40 - 47.971 When I go back there.

02:40 - 49.473 I don't think we accept come and go

02:40 - 51.074 because if we accept come, gee,

02:40 - 53.176 we place an employer in an untenable

02:40 - 55.779 where they can't act when they hear information

02:40 - 56.947 and make a decision based upon

02:40 - 58.849 whether they're going to retain an employee.

02:40 - 01.018 U.S. separated employer. Counsel just on that.

02:41 - 03.520 It's not like they're suing the employer here.

02:41 - 05.856 This is this is this is suing the supervisor.

02:41 - 06.890 Which they shouldn't.

02:41 - 07.524 I understand.

02:41 - 10.227 But you keep saying you're holding an employer to it

02:41 - 13.430 until there's no allegation that the employer

02:41 - 15.232 did something wrong here.

02:41 - 17.934 I guess I guess I guess I'm wondering if this might be a

02:41 - 20.937 that does protest a little bit too much.

02:41 - 24.875 I mean, if we recognize what Justice Dockery is suggesting,

02:41 - 25.575 simply that is

02:41 - 27.244 I think Justice Judge, to be honest,

02:41 - 29.579 Superior Court may use this terminology

02:41 - 33.150 and it is minority opinion, which was, you know,

02:41 - 37.254 the defendant who is accused of interfering

02:41 - 41.024 the third party, as you have all use that terminology,

02:41 - 44.628 has to be a stranger to the employment relationship.

02:41 - 46.296 As Justice Dockerty said,

02:41 - 50.200 maybe it's a coworker, maybe you are vying for.

02:41 - 52.369 Maybe you're a coworker vying for a promotion.

02:41 - 55.305 And in an effort to do that, you plant

02:41 - 58.608 salacious information that causes the employer

02:41 - 01.945 not only to promote you, but to fire your competitor.

02:42 - 02.612 Maybe it's

02:42 - 04.181 just somebody across the building

02:42 - 06.450 who has nothing to do with what you do

02:42 - 07.751 and just wanted to do something

02:42 - 09.720 interfered with your relationship.

02:42 - 11.722 Is there some policy you may get.

02:42 - 13.490 The employer is not held responsible for this.

02:42 - 16.293 Is there some policy reason why

02:42 - 20.163 we should not recognize that being actionable

02:42 - 21.865 in and at

02:42 - 24.901 will context that third party stranger

02:42 - 28.905 to the employment relationship causing other

02:42 - 31.408 what would otherwise not be a termination?

02:42 - 33.710 Well, I think the policy reason for that is this.

02:42 - 37.514 If it is a third party not involved in the employment

02:42 - 38.381 relationship there,

02:42 - 40.484 there are separate causes of action, as we've referenced

02:42 - 42.753 many times today, defamation,

02:42 - 44.921 any action that necessarily involves

02:42 - 46.957 intentional interference with employment, relationships.

02:42 - 49.726 You pull in that employer, you necessarily

02:42 - 52.429 pull in the actions of that employer in time.

02:42 - 53.830 How do you pull the employer in?

02:42 - 55.632 If you're if you're not getting your job,

02:42 - 57.734 you're not suing the employer, you're not seeking them.

02:42 - 59.770 Nobody's trying to undo the firing.

02:42 - 01.805 The firing happened.

02:43 - 04.908 The employer's not being asked to pay damages.

02:43 - 09.546 The the the defendant on the hook is the stranger

02:43 - 11.481 the stranger to the relationship.

02:43 - 12.482 Are you saying that?

02:43 - 13.650 Could I just understand?

02:43 - 16.186 Are you including a supervisor or coworker?

02:43 - 17.187 No, I'm not.

02:43 - 18.288 Talking about the. Neighbor.

02:43 - 20.857 I'm not sure supervisors stranger to the relationship

02:43 - 24.861 a coworker could be if a coworker against a stranger

02:43 - 26.429 the relationship, not a supervisor,

02:43 - 28.765 not a review or not somebody charged by the employer

02:43 - 31.034 to make an employment hiring a firing determination.

02:43 - 33.103 But somebody unrelated to that,

02:43 - 36.239 why, as a matter of public policy

02:43 - 38.208 does that?

02:43 - 39.075 Is that

02:43 - 42.479 something we shouldn't recognize if the employer is otherwise

02:43 - 43.580 fine?

02:43 - 44.548 I wouldn't necessarily

02:43 - 45.081 take the position

02:43 - 46.082 that the employer is otherwise

02:43 - 46.883 fine because

02:43 - 48.685 although the course of action will be against

02:43 - 51.221 that third party, you need to establish

02:43 - 55.225 that that third parties actions are what caused the employer

02:43 - 58.094 to act or not act in the way that the employer did.

02:43 - 59.763 So I don't think it's a scenario

02:43 - 01.031 where you can bring that course of action

02:44 - 03.700 that the employer is completely 100% siloed.

02:44 - 06.169 Just for example, if we take this. Case, Drexel was.

02:44 - 08.238 Very much a part of this case initially.

02:44 - 11.241 Drexel was facing a breach of implied contract that

02:44 - 14.711 that claim was resolved at summary judgment.

02:44 - 18.481 So I don't think it's a scenario where if we allow this claim,

02:44 - 19.282 it is such

02:44 - 21.384 that it's only the third party that will be

02:44 - 23.720 on the other side of the void, if you will.

02:44 - 26.256 I think you necessarily have to pull in the employer

02:44 - 29.359 to get an understanding of what prompted that decision

02:44 - 30.260 making counsel.

02:44 - 32.629 When we go back to the facts of this case,

02:44 - 34.731 we're talking about a supervisor, correct.

02:44 - 37.100 And I

02:44 - 39.536 don't share

02:44 - 42.339 position that's been expressed that maybe we don't care

02:44 - 45.842 about the floodgates opening, because what I see

02:44 - 49.546 if we take that extend extended step

02:44 - 51.915 and allow this kind of action

02:44 - 55.652 in an equal employment relationship is every time

02:44 - 01.758 a supervisor evaluates the employee that reports to him

02:45 - 05.562 or her, there's going to be a concern

02:45 - 09.266 that I can't say anything truthful

02:45 - 14.170 negative about this employee or he or she is going to sue

02:45 - 17.841 me and claim that I tried to get her fired.

02:45 - 19.542 It certainly would chill the

02:45 - 20.310 of a supervisor

02:45 - 22.345 to manage an employee, which is exactly what the

02:45 - 25.048 supervisor or manager is hired to do is a better way

02:45 - 26.516 Sirhan's or his.

02:45 - 27.784 It's not necessarily

02:45 - 31.288 the floodgates issue as it is chilling the the

02:45 - 32.856 the ability to

02:45 - 35.859 put freedom of the supervisor to do her job.

02:45 - 40.897 Okay so counsel this court has never adopted

02:45 - 41.898 the Hennessey line.

02:45 - 43.466 This case is recognizing

02:45 - 46.770 their prospective interference with the prospective

02:45 - 48.171 at will employment.

02:45 - 50.173 Is that. Yeah, that is correct.

02:45 - 50.941 The way to fix

02:45 - 54.844 the conflict is to disapprove the Hennessey line in cases.

02:45 - 58.114 That is correct and not allow the intentional

02:45 - 01.318 with a currently existing equal employment relationship

02:46 - 04.321 and a prospective at will employment relationship.

02:46 - 05.588 Thank you.

02:46 - 09.092 And the problem once again that I see with that is you

02:46 - 12.095 arguably do have a contract at the beginning

02:46 - 14.197 because you have an offer to hire

02:46 - 16.633 and an acceptance by the employee.

02:46 - 20.704 So there's contract at least to begin employment.

02:46 - 23.707 Even if the employment then is an at will.

02:46 - 25.241 It gets a little complicated,

02:46 - 27.577 but I guess we'll take a close look.

02:46 - 30.814 Into the restatement that we're discussing.

02:46 - 34.050 To comment is that damages are

02:46 - 36.987 almost unprovable.

02:46 - 38.822 They are because then at will employment

02:46 - 40.957 relationship can end tomorrow, it can end next week

02:46 - 42.959 or it can end in 2024.

02:46 - 46.429 So what are the damages you could not necessarily

02:46 - 48.431 identify for any court

02:46 - 50.600 when your position but for this interference.

02:46 - 53.503 My position necessarily would have ended on x date.

02:46 - 56.139 If you can identify that, that means you actually have

02:46 - 58.174 a contract which not what we have here.

02:46 - 02.245 And in an attempt to prove that you would call the employer

02:47 - 03.213 to a deposition

02:47 - 05.682 and then you would call the employer to a courtroom.

02:47 - 08.051 And the employer would necessarily be involved.

02:47 - 12.122 Firing you for no reason or any reason is involved

02:47 - 16.526 in the litigation concerning your interference.

02:47 - 20.497 Claim, even as not a defendant, but involved, involved,

02:47 - 21.765 pulled in.

02:47 - 24.000 All right. Any other questions from as Barker?

02:47 - 25.902 Mr. Coleman, Ms..

02:47 - 27.237 Barker. Bullock You do.

02:47 - 29.339 And it's a very interesting case.

02:47 - 33.343 Thank you. But

02:47 - 35.879 our next case is Diane Zylka versus

02:47 - 38.415 the Tax Review Board of the City of Philadelphia.

02:47 - 40.383 This is a tax dispute

02:47 - 42.886 between a Philadelphia resident and the city government.

02:47 - 45.889 Diane Zylka lives in Philadelphia,

02:47 - 48.224 but works in Wilmington, Delaware,

02:47 - 51.327 she is subject to income taxation by Pennsylvania.

02:47 - 54.230 Philadelphia, Delaware and Wilmington.

02:47 - 58.501 Pennsylvania has a 3.7% income tax rate.

02:47 - 01.571 Philadelphia's rate is 3.92%.

02:48 - 06.776 Delaware is is 5% and Wilmington is 1.25%.

02:48 - 08.244 Pennsylvania gave him his zylka

02:48 - 11.247 a full credit against her Pennsylvania state taxes

02:48 - 13.716 for what she paid the Delaware state government.

02:48 - 18.221 But Philadelphia would not let her use the unused portion

02:48 - 21.791 of her Delaware credit against her Philadelphia city taxes.

02:48 - 24.861 In other words, the 1.93% difference

02:48 - 26.996 between the Pennsylvania and Delaware tax.

02:48 - 31.367 Ms.. Zylka appealed, arguing that the city had to use

02:48 - 34.871 the unused portion of her Delaware credit against her.

02:48 - 36.606 Philadelphia taxes.

02:48 - 37.941 But both the trial court

02:48 - 40.176 and the Commonwealth Court did not agree with Ms.

02:48 - 41.010 Zylka.

02:48 - 43.646 She then asked the Supreme Court to hear her case

02:48 - 46.015 and the court agreed to do so.

02:48 - 47.283 In her brief, Ms.

02:48 - 51.087 Zylka contends that federal law requires a taxing authority

02:48 - 54.324 to fully credit its residents with taxes that they pay

02:48 - 56.092 to other governments.

02:48 - 59.729 She contends there must be internal consistency among taxes

02:49 - 01.464 and that the taxpayer's

02:49 - 05.535 overall burden should be considered as one.

02:49 - 08.371 She contends she should receive a full credit

02:49 - 11.374 for all of Pennsylvania from all of Pennsylvania's tax

02:49 - 15.311 authorities, for all the taxes she paid in Delaware.

02:49 - 18.681 She contends that otherwise she will be double taxed.

02:49 - 20.750 The city of Philadelphia, on

02:49 - 22.986 the other hand, sees the matter differently.

02:49 - 26.556 It contends there is no double taxation here because Mrs.

02:49 - 30.460 OKUPE never paid more than one local tax and one state tax.

02:49 - 34.664 The city points out that the 1.25% Wilmington

02:49 - 38.835 was fully credited against her city wage taxes.

02:49 - 42.939 The city also contends that federal law does not require

02:49 - 45.642 adding up taxes within another state

02:49 - 46.976 and then applying them

02:49 - 50.580 against the total taxes paid in the resident's home state.

02:49 - 52.749 Now let's head into the courtroom

02:49 - 54.384 and watch the arguments.

02:49 - 57.587 Are you ready? Yes, yes.

02:49 - 58.421 Right. Okay.

02:49 - 02.525 In this case, Diane Sokol resided in Philadelphia

02:50 - 05.461 but earned her income in Wilmington, Delaware,

02:50 - 07.630 during the tax period.

02:50 - 10.166 So far, it sounds like a bar exam question.

02:50 - 15.405 Zocor paid state income tax to both Pennsylvania and Delaware.

02:50 - 19.409 Although provided her credit for the income tax

02:50 - 21.177 she paid to Delaware

02:50 - 24.581 fully offsetting her Pennsylvania state income tax.

02:50 - 29.419 Zylka also paid wage taxes to Wilmington and Philadelphia

02:50 - 32.922 and Philadelphia provided a credit against its wage

02:50 - 36.492 tax for the taxes zylka paid in Wilmington.

02:50 - 40.697 However, Zylka sought an additional credit against

02:50 - 44.400 her Philadelphia wage tax for the amount of her Delaware

02:50 - 48.071 state taxes exceeded the Pennsylvania state tax.

02:50 - 50.840 But Philadelphia declined her request.

02:50 - 53.910 This court is now asked to determine

02:50 - 57.247 whether Philadelphia's practice in this regard

02:50 - 01.384 was unlawfully discriminatory under the Commerce Clause.

02:51 - 04.420 And if you have any variances to what I just said,

02:51 - 05.822 please please have them.

02:51 - 09.225 Madam Chief Justice and Justices

02:51 - 11.127 of the Supreme Court may please the court.

02:51 - 15.031 My name is Stuart Weintraub and I'm representing Diane Zylka.

02:51 - 16.966 With me is my colleague, Jennifer Kopp.

02:51 - 19.602 Chuck, as my co-counsel.

02:51 - 23.072 The only difference and it's not really

02:51 - 26.109 a difference, it's a supplement to what your owner said

02:51 - 28.778 is that and there were

02:51 - 31.981 two alleged two parts

02:51 - 35.285 to the Commerce Clause tests that have been challenged here.

02:51 - 37.420 One was the discrimination clause

02:51 - 40.089 and the other was the fair apportionment clause.

02:51 - 43.226 So that's that's the only difference in

02:51 - 46.963 facts that with the issues we're presenting to the court

02:51 - 49.165 from what you describe. I appreciate that.

02:51 - 51.501 Thank you. Thank you.

02:51 - 54.070 One of the central issues in this case

02:51 - 58.308 really derive from this sovereignty.

02:51 - 02.078 What is the state's sovereignty over this city?

02:52 - 06.582 This this city is a creature of the state.

02:52 - 08.618 The city

02:52 - 11.988 has no direct authority to do anything

02:52 - 15.525 other than the power that the state gives it

02:52 - 21.230 under the Commerce Clause.

02:52 - 25.368 There are four parts to the tests that the U.S.

02:52 - 28.771 Supreme Court has said you should apply

02:52 - 30.773 in the analysis of any tax

02:52 - 33.176 nexus.

02:52 - 36.012 Is there a reasonable nexus to the jurisdiction

02:52 - 39.515 fair apportionment, no discrimination,

02:52 - 41.851 and a reasonable.

02:52 - 43.286 The first in the fourth.

02:52 - 45.788 What I just gave you a not at issue here.

02:52 - 50.026 It's only the fair apportionment and the no discrimination

02:52 - 52.328 clauses that we hear before the court.

02:52 - 01.771 The thrust of our argument is that and the difference that

02:53 - 06.409 we have between our argument and the city's position is

02:53 - 11.247 how do you analyze those tests, the commerce clause tests

02:53 - 14.650 with respect to the Philadelphia wage tax.

02:53 - 16.552 Do you consider

02:53 - 18.621 the Philadelphia

02:53 - 21.290 wage tax, the city of Philadelphia's tax

02:53 - 25.395 in conjunction with the state taxes

02:53 - 28.464 or do you consider them separately

02:53 - 32.335 when doing the Commerce Clause constitutional analysis?

02:53 - 36.539 It is our position that you need to do them in the aggregate

02:53 - 40.610 that sovereignty is the issue.

02:53 - 44.213 This city is not an island

02:53 - 47.984 in Pennsylvania independ of Pennsylvania.

02:53 - 51.154 It is dependent upon Pennsylvania.

02:53 - 56.759 It derives all of its taxing authority from Pennsylvania.

02:53 - 00.763 It is fulfilling in the services

02:54 - 04.100 it provides to its residents.

02:54 - 08.337 It is fulfilling the obligations of the Commonwealth.

02:54 - 11.240 And I'll give you an example of what I mean here.

02:54 - 14.744 This Court just recently, within the last month,

02:54 - 17.914 the I'm sorry, the Commonwealth Court not this court

02:54 - 21.551 declared the state's funding

02:54 - 25.488 of public education to be unconstitutional.

02:54 - 28.691 That constitutes and requires that

02:54 - 33.329 the state provide a full, complete and adequate

02:54 - 37.099 education that is provided at the local level.

02:54 - 40.002 The state funds that

02:54 - 41.838 in part

02:54 - 44.173 the city funds

02:54 - 48.311 that in part in the city funds it

02:54 - 53.282 through its taxing power, which is granted by the state.

02:54 - 58.588 The city funds it with money out of its general fund

02:54 - 02.124 from taxes authorized by the state.

02:55 - 07.630 So the city's actions are all actions of the state.

02:55 - 10.166 And that is one of this,

02:55 - 13.669 the main thrust of why we believe that the city's

02:55 - 16.973 taxing practice is unconstitutional,

02:55 - 21.511 that you must look at it from the state level as opposed

02:55 - 25.481 to the individual local level, and that can go on from there.

02:55 - 27.383 Counsel I'm confused.

02:55 - 29.452 Why aren't you just standing here

02:55 - 33.222 and telling us that the United States Supreme Court decision

02:55 - 35.558 in Maryland versus

02:55 - 39.462 when in 2015 doesn't control the outcome of this?

02:55 - 40.196 It does.

02:55 - 41.998 I was just coming to the. End of it.

02:55 - 44.267 I mean, I truly I mean, they they they

02:55 - 47.570 they considered this precise issue and essentially said,

02:55 - 50.039 we don't care where it's being taxed.

02:55 - 52.608 If it's taxing the same activity, it's the aggregate

02:55 - 55.945 that is in isn't at the end of this discussion.

02:55 - 58.514 I believe so, Your Honor, but

02:55 - 00.983 I just can't get up and say that and sit down.

02:56 - 04.420 I'm trying to figure out why, but I get it.

02:56 - 04.987 Okay.

02:56 - 06.556 I mean, they they

02:56 - 09.392 the United States Supreme Court consider what the Commonwealth

02:56 - 14.830 Court said is, oh, but that's different because in that case,

02:56 - 18.401 the state collected the taxes and that was an accommodation.

02:56 - 20.102 The United States Supreme Court

02:56 - 22.939 said we don't care if it's taxing the same activity.

02:56 - 25.675 I would absolutely agree with that.

02:56 - 28.110 You win decision from the Supreme Court

02:56 - 30.279 is the controlling decision, but shouldn't we?

02:56 - 32.782 If I could follow up on that question, Counsel,

02:56 - 36.552 shouldn't we allow SCOTUS to do that?

02:56 - 39.755 In other words, if,

02:56 - 41.290 if, when, if,

02:56 - 44.727 if it were correct that when required aggregation,

02:56 - 48.531 why didn't I think it was Justice Alito's opinion?

02:56 - 49.832 Right? Why didn't he

02:56 - 54.971 aggregate those Maryland State and county tax is?

02:56 - 58.841 Aren't you asking us to basically anticipate

02:56 - 02.211 somewhere you might like skirt is to go in the future?

02:57 - 03.913 No, I'm not saying that,

02:57 - 07.750 Your Honor, because I believe SCOTUS has already gone there

02:57 - 11.621 and that know that is the law as it is.

02:57 - 14.156 I believe what the city is trying to do

02:57 - 17.994 is restrict what the Supreme Court has already told us

02:57 - 22.064 is the law.

02:57 - 25.201 I think it's perhaps you're right, it seems difficult

02:57 - 28.337 for us to guess where SCOTUS might be on this.

02:57 - 30.373 It's a bit messy, isn't it?

02:57 - 31.407 Well, the courts changed.

02:57 - 34.110 Over the years, which I thought was shocking.

02:57 - 35.711 I have to disagree with that.

02:57 - 37.246 I believe the Supreme Court

02:57 - 39.382 has already told us what the law is.

02:57 - 43.185 You Know the city as the city attempts to distinguish

02:57 - 46.822 the win decision on the basis that

02:57 - 51.160 there's a line and Justice Alito decision that says that

02:57 - 55.765 the county tax that was involved there is a state tax.

02:57 - 01.203 Let me read to you

02:58 - 04.173 what the comptroller of Maryland

02:58 - 09.412 said about the win decision after it was rendered

02:58 - 17.119 and how they are applying it.

02:58 - 20.990 The comptroller in Maryland issued a release on its website

02:58 - 24.860 where they say Maryland's 23 counties

02:58 - 29.498 and Baltimore city level a local income tax,

02:58 - 33.903 which we collect in the state income

02:58 - 37.840 return as a convenience for local governments.

02:58 - 40.943 The local income tax

02:58 - 44.280 is calculated as a percentage of your taxable income.

02:58 - 48.584 Local officials set the rates, which range between two

02:58 - 53.622 and a quarter and 3.2% for the current tax year.

02:58 - 55.825 And then it goes on to talk about,

02:58 - 00.429 you know, the locals, whenever they change the rate, have to

02:59 - 05.501 notify the state of that so they can collect it.

02:59 - 08.471 Now, this is not an uncommon practice.

02:59 - 12.108 There are there are states and other states in this country.

02:59 - 13.175 I would say, direct you

02:59 - 17.113 to New York on a New York state income tax return.

02:59 - 21.317 A resident of the city of Yonkers calculates

02:59 - 25.721 his local Yonkers tax and it's reported to the state.

02:59 - 30.926 The New York state also includes on its state income tax.

02:59 - 34.463 The New York City income tax, which is then

02:59 - 37.900 reported to the state and the state funds it.

02:59 - 40.369 So when you look at so

02:59 - 42.404 this is not an uncommon practice,

02:59 - 44.440 what Maryland has already done here,

02:59 - 47.576 but that doesn't make the New York City,

02:59 - 53.282 the Yonkers, the Maryland county excuse me, county taxes.

02:59 - 55.151 State taxes.

02:59 - 57.686 Like when you look at the

02:59 - 02.291 parallel between the Philadelphia wage

03:00 - 06.862 and the Maryland county tax, this is what you see.

03:00 - 11.700 You have both the county tax and the and the wage.

03:00 - 13.869 Tax authorized by the state.

03:00 - 17.439 Both the county tax and the wage

03:00 - 20.476 tax are imposed at the local level.

03:00 - 24.180 Both the county tax and the wage tax.

03:00 - 26.816 The rate is fixed at the local level.

03:00 - 31.687 The difference is on the wage. Tax.

03:00 - 35.157 It is directly collected by Philadelphia.

03:00 - 38.994 The Maryland tax is directly collected

03:00 - 44.133 by the state and then given to the county.

03:00 - 49.038 And then the county spends that money on the county tax.

03:00 - 51.507 And here Philadelphia spends money.

03:00 - 56.412 The only difference is the administrative convenience

03:00 - 59.315 that the state of Maryland is offering.

03:00 - 03.085 It's municipalities, it's counties

03:01 - 05.721 to collect the tax and remit it.

03:01 - 09.191 It's actually saving them the money of having to spend

03:01 - 13.462 for their departments, collect it and administratively deal

03:01 - 14.163 with it.

03:01 - 19.835 Philadelphia has that capacity on its own, so the state doesn't

03:01 - 22.705 do it, bringing it here into Pennsylvania.

03:01 - 26.008 Philadelphia imposes a sales