PA Supreme Court Session from Philadelphia recorded on March 8, 2023
00:01 - Welcome to the Supreme
00:02 - Court of Pennsylvania's
00:03 - March 2023 session
00:05 - in Philadelphia.
00:06 - My name is Leslie Greenspan.
00:08 - I'm a partner at the Tucker
00:09 - Law Group here in Philadelphia.
00:11 - With me today is my friend
00:12 - and colleague at the bar,
00:14 - Karl Myers, co-chair
00:15 - of the appellate
00:16 - practice group at the
00:17 - Stevens and Lee law firm.
00:19 - The Supreme Court
00:20 - of Pennsylvania
00:21 - is the oldest appellate court
00:23 - in the nation and recently
00:24 - celebrated its
00:25 - 300th anniversary.
00:28 - The court consists
00:29 - of seven justices
00:30 - and hears cases involving
00:31 - disputes under Pennsylvania law,
00:34 - including criminal, civil
00:35 - and family law disputes.
00:37 - For this sitting, the court
00:39 - has nine cases on its docket
00:41 - in the oral arguments
00:42 - you are about to watch.
00:44 - You will see the justices
00:45 - asking questions of the parties.
00:47 - Lawyers.
00:47 - Those lawyers have
00:48 - already submitted written
00:50 - briefs arguing their positions.
00:52 - The arguments give the
00:53 - chances of the justices
00:55 - a chance to question the
00:56 - lawyers and test the strengths
00:58 - and weaknesses of
00:59 - the parties arguments.
01:00 - Now let's turn our
01:01 - attention to the first case on
01:03 - today's argument list.
01:05 - The first case
01:06 - today is Sullivan versus Warner.
01:09 - Mr. Sullivan was
01:10 - a union carpenter
01:12 - who was seriously injured
01:13 - when the scaffolding
01:14 - he was using collapsed.
01:16 - The Sullivan sued Werner
01:18 - and Lowes for manufacturing
01:20 - and selling a defective
01:21 - product to the scaffold.
01:23 - They sued
01:24 - under both a negligence
01:26 - theory and a strict
01:27 - liability theory,
01:28 - which means that a defendant
01:30 - can be held responsible
01:31 - for the consequences of
01:33 - their actions, regardless
01:34 - of whether they behaved
01:36 - intentionally or negligently.
01:38 - At trial, Werner, the
01:39 - manufacturer of the scaffold,
01:42 - sought to introduce
01:43 - evidence of its compliance
01:44 - with industry and
01:45 - government safety standards.
01:48 - But the trial court
01:49 - excluded this evidence
01:50 - based on a line of cases
01:52 - that barred negligence
01:53 - principles in the context
01:55 - of strict product liability.
01:57 - The jury entered a
01:58 - verdict for $2.5 million,
02:01 - the superior court
02:02 - affirmed in this appeal.
02:04 - Werner, the manufacturer,
02:06 - argues that there was a 2014
02:08 - landmark case from
02:09 - the Pennsylvania
02:10 - Supreme Court called
02:12 - Tincture versus Omega Flex Inc,
02:14 - which is in which the
02:15 - Supreme Court did several
02:17 - important things, two of
02:18 - which are most relevant here.
02:21 - First, it overruled
02:22 - prior precedent
02:23 - holding that
02:24 - negligence principles
02:25 - have no place in strict
02:27 - product liability cases.
02:29 - And two, it restored to
02:31 - the jury the responsibility
02:33 - to determine
02:34 - whether a defective condition
02:35 - was unreasonably dangerous.
02:37 - Because of the tincture
02:39 - case, the trial court
02:40 - should have allowed
02:41 - the manufacturer
02:42 - to introduce evidence
02:43 - that it was compliant
02:44 - with industry and government
02:46 - or regulatory safety standards.
02:49 - In response, the Sullivans
02:50 - argue that the tincture decision
02:52 - rejected the inclusion
02:54 - of negligence principles
02:56 - into the strict
02:57 - liability analysis,
02:58 - and that under the law in
03:00 - Pennsylvania and specifically
03:02 - Section 402 of the
03:03 - restatement second of Torts,
03:05 - a seller of a defective
03:07 - product can be liable regardless
03:09 - of exercising all
03:11 - possible care in the
03:12 - preparation and
03:13 - sale of a product.
03:15 - As such, a defendant
03:16 - cannot introduce evidence
03:17 - of compliance with industry
03:19 - and governmental standards
03:21 - to avoid strict liability
03:22 - for a defective product.
03:24 - Let's go into the courtroom
03:26 - and hear what the arguments are
03:27 - going to be.
03:29 - Morning, everyone.
03:31 - Welcome to our
03:32 - second day of our spring
03:35 - oral argument session
03:36 - here in sunny Philadelphia.
03:39 - As you may know, the
03:40 - Pennsylvania Supreme
03:41 - Court is the oldest
03:43 - court in North America.
03:45 - Our roots date back to William
03:48 - Penn's provincial court of 1684,
03:51 - and the Supreme Court
03:52 - was formally established
03:54 - pursuant to the Pennsylvania
03:57 - Judiciary Act of 1722.
03:59 - Last year, we celebrated
04:01 - the court's historic
04:02 - 300th anniversary
04:04 - here in Philadelphia.
04:06 - We are privileged
04:08 - to sit in three
04:09 - historic courtrooms Harrisburg,
04:11 - Pittsburgh and Philadelphia.
04:14 - Here in city Hall,
04:16 - I just wanted to point out
04:17 - a couple of the beautiful
04:19 - historic details
04:20 - in this courtroom.
04:22 - The facade of the bench is
04:24 - constructed of Mexican Onyx,
04:26 - with each of the
04:27 - seven panels divided
04:29 - by bronze statuary
04:31 - representing Greek
04:32 - figures of law, justice
04:34 - and jurist prudence.
04:37 - To the right of the
04:38 - bench is an Italian marble
04:39 - bust of John Banister
04:41 - Gibson, who was chief
04:43 - justice of Pennsylvania
04:46 - from 1827 to 1851.
04:49 - The Caen Stone, which
04:51 - houses the bust, bears
04:53 - the Latin inscription and
04:55 - Justice Weck speaks Latin
04:57 - so he could correct
04:58 - me if I'm wrong.
05:00 - The Latin inscription,
05:02 - meaning bright
05:04 - and full of majesty, made
05:06 - the decision a loss that
05:08 - to the left of the bench is a
05:10 - bronze bust of George Sharwood.
05:13 - Chief Justice of the
05:14 - Pennsylvania Year.
05:15 - From 1879 to 1882.
05:18 - Chief Justice Charles Wood
05:20 - was a well-respected member
05:22 - of the Philadelphia Bar before
05:24 - he ascended to the bench.
05:26 - Directly behind us is a
05:28 - mural completed in 2002
05:31 - by two local artists Michael
05:33 - Webb and Max Mason.
05:36 - The view is of Independence
05:38 - Hall southern facade
05:39 - with the historic Pennsylvania
05:41 - Supreme Court courtroom
05:43 - to the left.
05:44 - The interior of
05:46 - both our courtroom
05:47 - and the justices conference
05:49 - room, which is behind us,
05:51 - were designed by George Herzog,
05:54 - an American interior designer
05:56 - and decorative painter.
05:58 - While you're
05:59 - here in the courtroom,
06:00 - hopefully you'll
06:00 - get an opportunity.
06:02 - Not not while you're arguing.
06:04 - To take a look at all
06:06 - the beautiful accents
06:08 - in this courtroom.
06:09 - Before we hear the first
06:11 - case, I would like to introduce
06:13 - some students who
06:14 - are here with us today.
06:16 - We're always happy
06:17 - when we have high school
06:18 - or college or law students
06:20 - come to the courtroom
06:21 - to hear our cases.
06:22 - Today we have
06:23 - juniors and seniors
06:26 - from my alma mater, Lincoln
06:27 - High School, in Ellwood City.
06:30 - Could you students stand up?
06:34 - Welcome to Philadelphia.
06:36 - Welcome to the
06:37 - Pennsylvania Supreme Court.
06:39 - These students are part
06:40 - of the AP, US government
06:42 - and politics class, and they
06:44 - are here with
06:45 - their teachers, Mr.
06:46 - David Davis and Ms..
06:47 - Marcia Casanova. Welcome, kids.
06:51 - Also, you can sit down as
06:54 - part of our 300th anniversary
06:56 - celebration I mentioned earlier.
06:59 - We held an essay
07:00 - contest that was open
07:02 - to high school students
07:03 - throughout the entire state.
07:06 - And the winner of that essay
07:08 - contest is here with us today.
07:10 - Grady Smith, would you stand?
07:12 - Grady, congratulations.
07:19 - Grady.
07:22 - Now let's get down to it.
07:24 - Appellant's Counsel When
07:26 - you approached the podium,
07:28 - when your case is called, if
07:29 - you'd pause just a moment,
07:31 - I'll give a short
07:32 - summary of the case,
07:34 - and then you can begin
07:35 - by stating your name
07:36 - and the party
07:37 - you represent and by introducing
07:38 - your co-counsel to the court.
07:41 - The justices are familiar
07:42 - with all of your cases.
07:44 - So I ask that you invoke,
07:45 - avoid any unnecessary recitation
07:48 - of the facts or
07:49 - procedural history
07:50 - and instead
07:51 - focus on the main issues
07:53 - on which we granted review.
07:55 - Counsel is, of course,
07:56 - welcome to rely on the briefs
07:58 - for any issues that they
07:59 - choose in cases where
08:01 - there are multiple parties
08:03 - represented by separate counsel,
08:05 - counsel should avoid
08:06 - repeating the same
08:08 - arguments as prior counsel.
08:10 - Please try not to
08:11 - interrupt the justices
08:12 - when they ask you questions.
08:14 - A justice's question is
08:15 - not meant to trip you up.
08:17 - Rather, it's an indication
08:18 - that there are particular issues
08:20 - we want to explore further.
08:23 - While there's no set time
08:24 - limit for arguments
08:25 - at our court,
08:26 - I will advise counsel
08:27 - when the court is satisfied
08:29 - that all of its questions
08:30 - have been answered.
08:31 - And at that time, I ask that
08:33 - you conclude your argument.
08:35 - Mr. Minner, please
08:36 - call the first case
08:38 - on the list of.
08:39 - Solid water coffee companies
08:41 - representing river flows.
08:44 - Mr. James That
08:45 - represents all of it.
08:46 - As a matter of how fast.
08:50 - In this case, the
08:51 - plaintiff who was injured
08:52 - while using a rolling scaffold
08:54 - brought a product liability
08:56 - action against the scaffold
08:58 - manufacturer and seller.
09:01 - We address whether a
09:02 - jury may consider a product's
09:04 - compliance with pertinent
09:05 - industry and governmental
09:07 - standards under the product
09:09 - liability principles established
09:12 - in our 2014 decision in
09:14 - Tincture versus Omega Flex, Inc.
09:18 - Good morning, Madam Chief.
09:20 - Justice, your arms may
09:22 - please the Court I'm Jim Beck,
09:24 - and along with my
09:25 - co-counsel, Ted Hedges,
09:26 - we represent the
09:27 - appellate work company.
09:28 - In this appeal.
09:30 - We have three main points.
09:31 - First, there should be no
09:33 - bright line rule here, either
09:34 - for or against admissibility
09:36 - of compliance evidence
09:37 - to ensure overruled
09:38 - the absolute separation
09:40 - between negligent conduct
09:41 - and strict liability product
09:43 - condition, and instead adopted
09:45 - an incremental pro jury approach
09:48 - and thus the person exclusionary
09:49 - rule imposed by the Lewis case
09:51 - and reinstated by the Superior
09:53 - Court here cannot stand.
09:55 - Second, to ensure
09:56 - restored to juries
09:57 - the determination of whether
09:59 - product defects create
10:00 - unreasonably dangerous products.
10:02 - That's the normative principle
10:04 - now and here, the plaintiffs
10:05 - chose to prove defect
10:07 - by using the risk utility
10:08 - prong of Tinker's composite
10:10 - test involving
10:11 - alternative designs.
10:13 - Lewis itself recognized
10:15 - the relevance
10:16 - of compliance
10:16 - evidence to these issues.
10:18 - So did this jury.
10:19 - But the question about OSHA
10:21 - not only went unanswered,
10:23 - but the product was
10:24 - altered to prevent
10:25 - this jury from learning of the
10:26 - product's OSHA compliance.
10:28 - Third, the result I'm seeking
10:30 - here is not just majority
10:32 - rule nationwide, but every
10:34 - 400 to a state in the country
10:36 - where juries decide these
10:38 - questions has recognized
10:40 - the standard compliance evidence
10:42 - properly introduced
10:43 - is ordinarily relevant
10:45 - to whether product designs
10:47 - are unreasonably dangerous
10:48 - and therefore
10:49 - defective standards.
10:50 - Compliance evidence is
10:51 - admitted almost everywhere,
10:53 - almost every day without
10:55 - any of the speculative
10:56 - adverse effects mentioned
10:58 - in the opposing briefs.
11:00 - So if we were to accept your
11:01 - argument, would you agree?
11:04 - Would you concede
11:05 - that it would not always
11:06 - be admissible in every case?
11:08 - Yes, it would be a
11:09 - case by case basis.
11:10 - And how would you how would
11:12 - you discern that case by case?
11:14 - It would be on the
11:16 - basis of the relevance
11:18 - of the particular type
11:19 - of compliance evidence.
11:21 - There are there are
11:22 - pretty much three
11:22 - different types of
11:23 - compliance evidence.
11:24 - There's the prevalence in
11:26 - the industry itself
11:27 - of the design.
11:29 - That was one of the
11:29 - things raised here.
11:30 - There are mandatory
11:31 - governmental standards
11:33 - and there are these
11:35 - consensus industries
11:37 - standards, mostly
11:38 - created by standards,
11:39 - saying organizations
11:40 - such as ANSI.
11:41 - In this case, each one of
11:42 - those has somewhat different
11:45 - attributes to it.
11:46 - That would have to be
11:47 - considered in an
11:48 - individual case.
11:48 - But I think they all meet the
11:50 - basic, relevant standard of
11:52 - whether it makes any fact,
11:55 - more or less probable
11:56 - under Rule 401.
11:58 - If we would hold that.
12:00 - You know, you're right,
12:01 - but we're going to do it
12:02 - case by case.
12:03 - It seems to me that
12:03 - it might be creating
12:04 - a quagmire for the trial
12:06 - courts to sift through.
12:08 - I don't think so.
12:09 - Your Honor,
12:10 - we bet we admit the
12:11 - same kind of evidence,
12:12 - under the same kind of
12:13 - standards in negligence cases,
12:15 - and have for over
12:16 - a hundred years.
12:17 - And it's never created
12:18 - a quagmire there.
12:19 - I don't see that that's
12:20 - and it's done in 40
12:21 - something states otherwise.
12:22 - And we've never seen
12:23 - cases that create that.
12:24 - There's a quagmire because
12:26 - of this aspect of the evidence.
12:28 - It can be admitted.
12:29 - There are situations under
12:30 - which it might be excluded.
12:33 - If you want an example of
12:34 - one where it might be excluded,
12:36 - it would be a
12:37 - situation where, say,
12:38 - the standard that the defendant
12:40 - says they complied with
12:41 - was not actually in effect
12:43 - at the time the product
12:44 - was manufactured.
12:45 - That's a case by case basis
12:46 - on which it might be excluded.
12:49 - I'm sorry, just
12:49 - one more question.
12:50 - As a broader prospect,
12:52 - couldn't it be
12:53 - misleading to a jury
12:55 - when these types of
12:56 - standards are admitted?
12:58 - I'm thinking back to
12:59 - the Ford Pinto case.
13:01 - Could be.
13:04 - This is a case I think I'm
13:05 - looking for a case by case
13:06 - basis. This is evidence.
13:07 - I'm not we're not
13:07 - trying to set a rule here.
13:09 - At least I'm not.
13:11 - It could conceivably
13:12 - be misleading if there
13:14 - is evidence of that,
13:15 - which there is
13:16 - none in this case.
13:18 - If there's evidence of that,
13:19 - then the you would have
13:21 - the usual 105 rule one of
13:23 - five pretrial hearing on that.
13:26 - And the court would decide
13:27 - as the
13:28 - gatekeeper of the
13:29 - evidence whether or
13:30 - not in that particular
13:31 - case, in a Ford Pinto case,
13:33 - I'm not sure they're any
13:34 - more rounded around anymore.
13:36 - I hope in that kind
13:37 - of I hope not either.
13:38 - But in that kind of case,
13:41 - it would be on a case by
13:42 - case basis, just
13:42 - like we do it in
13:43 - every other kind of evidence.
13:45 - Counsel, can I follow
13:46 - up on that? Yes.
13:48 - And I'm glad you mentioned that,
13:49 - you know, that we're
13:50 - talking about evidence.
13:51 - What I don't see anywhere
13:52 - in this record
13:53 - is an offer proof.
13:56 - It was.
13:56 - Let me let me just
13:57 - go through with this.
13:59 - And I'm sort of looking at this
14:00 - from the perspective of
14:02 - somebody who used to try cases.
14:06 - There is some assumption here
14:08 - that everybody knows
14:09 - what you're talking about.
14:11 - For example,
14:13 - what our standards in
14:14 - the industry and how are
14:16 - they formed
14:17 - and what are they exactly
14:19 - relevant to in this case, where
14:22 - the seven factors were used
14:25 - in order to establish a defect?
14:28 - And how are we going
14:29 - to get this into evidence?
14:31 - I mean, I, you know, I
14:33 - I'm I'm really groping.
14:36 - What I don't want to
14:37 - have happen here is that
14:39 - we are writing an opinion at
14:41 - 30,000 feet because what we
14:43 - we were waiting for
14:45 - after ten years was a case
14:47 - where the issues were clearly
14:49 - articulated and presented.
14:52 - And so maybe you could
14:53 - help me out with two things.
14:55 - Why wasn't there
14:56 - an off road proof?
14:58 - How was this
14:58 - evidence going to get in
15:00 - and what was the
15:02 - purpose of it in this case?
15:04 - Okay.
15:06 - There was no offer of proof
15:07 - because this was done
15:08 - by eliminate motion.
15:09 - It was done by a pretrial
15:11 - motion and it was granted.
15:12 - And at that point, it
15:13 - was out of the case.
15:15 - And there was no attempt.
15:17 - There was no ability to go
15:18 - and make an offer of proof
15:20 - at that time because it
15:20 - had already been excluded.
15:21 - And that's enough to
15:22 - preserve the issue from.
15:24 - The start of question
15:25 - issue preservation. I get it.
15:26 - The issue is preserved.
15:27 - But when you said it again,
15:29 - then we couldn't get it in.
15:31 - Okay, what was it?
15:32 - What was it?
15:34 - It was it was three things.
15:36 - There was the prevalence
15:38 - of this particular product
15:40 - design among the industry.
15:43 - After the plaintiff
15:44 - brought in examples
15:46 - of other designs
15:47 - that were available,
15:49 - we sought to counter that
15:51 - with evidence of several, what,
15:54 - six or eight scaffolds,
15:55 - different scaffold designs
15:57 - that had the same
15:58 - design, and prove that
16:00 - and prove that this was in
16:01 - fact the most prevalent design.
16:03 - And that goes to
16:04 - several of the factors
16:08 - that weighed factors such
16:10 - as the of the expectation
16:12 - that the user would be
16:14 - aware of the product's
16:16 - condition and the
16:17 - product's attributes.
16:18 - And the more frequent
16:19 - the user
16:20 - has to see those attributes
16:22 - because it's a prevalent design,
16:24 - then that goes and makes
16:25 - that more likely that the,
16:26 - that the user would be familiar
16:28 - with the product, familiar
16:29 - with at risk and able to avoid.
16:30 - And that's one basis
16:31 - for that type of evidence.
16:33 - There was also OSHA
16:35 - and ANSI standards.
16:36 - Those were the ones
16:37 - that were flatly rejected.
16:39 - Let me just follow up.
16:40 - So it was being
16:41 - offered to establish
16:43 - that the design was
16:44 - prevalent in the marketplace?
16:46 - Yes, it was.
16:47 - Well, it was for
16:48 - the reasons being
16:50 - that that is relevant to
16:52 - the the weighed factors
16:54 - that were the jury
16:54 - was instructed.
16:55 - It's not that it's relevant
16:56 - that two somebodies do care.
16:58 - The jury was not
16:59 - instructed on due
17:00 - care, was instructed against.
17:01 - Do I understand that, counsel?
17:03 - But the weight factors
17:04 - were specifically instructed
17:07 - at the request and I
17:07 - don't think there were
17:08 - any objections to the use of
17:10 - the weight factors in this case.
17:12 - There was not.
17:12 - Which of the
17:13 - weighed factors to the
17:16 - the we're talking about
17:17 - industry standards, correct.
17:18 - Which of the weighed factors
17:21 - do the industry
17:23 - standards shed light on?
17:25 - Okay.
17:25 - Industry standards
17:26 - and governmental
17:27 - standards are relevant
17:28 - to the weighed
17:29 - factors such as first,
17:30 - the users anticipated
17:31 - awareness of the risk.
17:33 - That's mostly the
17:33 - prevalence of the design.
17:35 - There is the weight factor
17:37 - for the availability of
17:39 - feasible alternative designs.
17:41 - How does it go to that?
17:42 - And I'm sorry to
17:44 - press you on this, but
17:47 - not having anything
17:48 - in the record
17:49 - from which to draw
17:51 - these kinds of conclusions,
17:54 - I need you to
17:55 - fill me in on this.
17:56 - Well, if if the government
17:59 - sets a standard.
18:01 - Then the government standard.
18:02 - We're talking the ocean oceans.
18:04 - The ocean aspect
18:06 - of it is a government.
18:08 - OSHA and.
18:09 - Industry, American National
18:11 - Standards Institute, ANSI,
18:13 - which is a private standards
18:14 - setting group that does this
18:16 - for hundreds of products.
18:20 - They they recommend
18:21 - they those standards.
18:22 - So before you go in,
18:24 - you're talking about
18:25 - OSHA's standards also.
18:27 - Yes, OSHA and ANSI were
18:28 - both were both met were
18:30 - both in the expert report
18:32 - that's in there
18:33 - that's in the record.
18:34 - There's what we
18:35 - would have discussed.
18:36 - Had there not.
18:37 - Been and eliminate a
18:39 - ruling on that subject.
18:41 - The there's a there's
18:43 - one of the weight factors
18:44 - is the the availability
18:46 - of alternative designs.
18:47 - And if you have
18:49 - the government can
18:51 - set what the design is.
18:53 - The governmental standard
18:55 - can preclude an alternative
18:57 - by saying you're going to do X
18:59 - and not why an ANSI standard
19:01 - can say,
19:02 - we have looked at these
19:03 - and we think this is the optimal
19:06 - way to do it.
19:07 - Or it could be
19:07 - there's a range of things within
19:09 - certain performance standards
19:11 - that would be that
19:12 - would be available.
19:13 - And the and and the defendant
19:14 - can argue this is one of them.
19:17 - That's how that would be
19:18 - relevant to alternative designs.
19:20 - There's also the
19:21 - question of the safety.
19:22 - Follow up on that that I
19:24 - don't quite understand.
19:26 - The the plaintiff in this case
19:28 - offered an alternative design
19:31 - through an expert
19:32 - witness, correct?
19:33 - Yes. Okay.
19:37 - I don't understand
19:39 - how ANSI or OSHA
19:44 - helps in
19:45 - defending against
19:47 - an alternative design
19:49 - unless the alternative
19:51 - design and see.
19:53 - Okay, got ahead.
19:54 - ANSI in this particular case or.
20:00 - Approved.
20:00 - The design criteria
20:02 - that this product met
20:05 - and that is goes to making it
20:08 - more likely that
20:10 - our design is a safe
20:13 - alternative and it's
20:14 - just as safe or safer
20:17 - and it has less of
20:19 - the other factors.
20:21 - You have to say that again.
20:23 - Sorry, I didn't follow that.
20:24 - I'm sorry.
20:25 - The alternative design
20:28 - that our our product represents
20:31 - was approved by met met
20:33 - with the ANSI standards.
20:35 - The industry, the.
20:35 - Industry standards.
20:36 - And it was also satisfied
20:38 - that OSHA standards and the
20:41 - the balanced thing
20:42 - that was done,
20:43 - the tradeoffs that were done,
20:45 - that represent that standard
20:47 - show that this was a
20:50 - not an unreasonably
20:52 - dangerous design to use there.
20:54 - There are other alternatives,
20:55 - but this alternative
20:57 - meets with the with
20:58 - the kinds of trade offs
20:59 - between efficacy and
21:01 - between safety and cost
21:04 - so that our
21:06 - our design is at
21:07 - least more likely
21:10 - to be a not an
21:11 - unreasonably dangerous
21:13 - alternative to the design
21:14 - that was introduced by the.
21:16 - Therein lies my
21:17 - question and our problem.
21:20 - And let me let me
21:21 - just make it clear.
21:22 - I mean, I'm
21:23 - I'm open to the notion
21:25 - that there is a place
21:27 - for this evidence in
21:28 - design, these cases.
21:30 - I just don't see anything here
21:33 - that convinces me of that.
21:36 - I mean, what you
21:37 - just said essentially
21:39 - is that what you were
21:40 - attempting to offer through?
21:42 - I don't know if it's
21:43 - ANSI or was to.
21:45 - An expert witness that
21:45 - would have discussed
21:46 - how these
21:47 - these standards applied
21:48 - into the the design process
21:50 - that produced. This product.
21:51 - We don't have that. But before
21:54 - there was no offer of proof.
21:55 - But let me just
21:56 - finish my thought.
21:58 - What you just said is you
21:59 - essentially wanted to offer
22:01 - this to show that ANSI and OSHA
22:05 - establishes the risk utility
22:09 - conclusion that is
22:11 - the ultimate question
22:13 - in this design defect case
22:15 - and that I have a problem with.
22:17 - Not establish it is evidence.
22:20 - It is not ANSI and
22:21 - OSHA are not binding.
22:24 - They they they have a
22:27 - and a range of designs in them
22:30 - that show that they think these
22:32 - are reasonably safe designs.
22:35 - They are not binding on anyone.
22:37 - The jury can disregard them.
22:40 - The plaintiffs can urge
22:41 - the jury to disregard them.
22:43 - But they are they they meet
22:45 - the bar of relevant evidence
22:47 - and that they have some
22:49 - tendency to make
22:50 - and establish facts
22:51 - such as the the safety of this
22:53 - design more or less probable
22:54 - in this particular case
22:56 - or in any particular case.
22:58 - Because what we're talking
22:59 - about here is a per se rule
23:00 - that was adopted that
23:01 - these don't come in.
23:01 - In any case. I get it.
23:03 - But see you.
23:04 - You know more about
23:05 - this than I do counsel.
23:06 - And I respect that you've
23:07 - been doing this for a long time.
23:09 - But when ANSI
23:11 - standards are when when
23:14 - these standards are adopted,
23:16 - is there a risk utility test
23:18 - that is taken into
23:20 - account before a standard
23:21 - is adopted?
23:25 - The ANSI committees
23:27 - have people on
23:28 - them from both sides.
23:30 - They have industry, industry
23:31 - and other
23:32 - representatives on them.
23:34 - They try to reach a consensus.
23:35 - They call them consensus stands.
23:37 - And what on that.
23:37 - This is this is
23:39 - sufficiently safe
23:40 - to be to that it can be
23:42 - sold in the marketplace.
23:44 - That's what they do.
23:45 - They know risk utility.
23:47 - And there is a risk utility
23:49 - balance inherent in how
23:51 - these committees go about
23:53 - forming these standards.
23:55 - And the standards themselves
23:56 - are substance, are not hearsay.
23:59 - They're basically considered
24:00 - to be substantive facts.
24:01 - Okay. Let me ask
24:02 - you that question.
24:03 - Why isn't this hearsay
24:06 - if if you are offering for
24:08 - the truth of the matter
24:10 - asserted that these
24:12 - standards establish
24:14 - and I'm not sure what either
24:16 - the safety or the risk utility.
24:19 - Why isn't that hearsay?
24:21 - And I look through
24:21 - all the hearsay
24:22 - exceptions and I'm
24:23 - sure you're much
24:24 - better at this than I am, but
24:27 - I just don't see why
24:28 - this isn't hearsay.
24:29 - That's not going to be
24:31 - subject to cross-examination.
24:34 - It is.
24:34 - There's never been
24:35 - this is this is admissible
24:37 - in 40 something states.
24:38 - They've never
24:38 - considered hearsay.
24:39 - Consider me dense.
24:41 - Okay. I mean, I'm just asking.
24:44 - Why is the fact of
24:45 - an ANSI standard,
24:48 - the fact of a
24:48 - governmental standard?
24:49 - A governmental standard
24:51 - is subject to judicial notice.
24:53 - A the fact of an industry
24:54 - standard is considered
24:56 - in the states that
24:57 - allow this to be a fact
24:59 - that is determined the
25:01 - same way you prove facts.
25:02 - This is the standard.
25:05 - You bring in someone
25:05 - with personal knowledge
25:06 - of the standard.
25:07 - They discuss what it is
25:08 - and then decides the sides
25:09 - debate on whether this complied.
25:12 - If that's that's what
25:13 - it's being used for.
25:14 - Yes justice worked select.
25:16 - With respect to the
25:17 - standards counsel.
25:19 - How how should we
25:22 - consider
25:24 - articulating a rule that
25:26 - courts should follow
25:28 - regarding the admissibility
25:30 - of that standard evidence
25:32 - in in circumstances where
25:34 - in a in a given industry
25:38 - you may have just a small
25:40 - number of dominant suppliers.
25:42 - And the
25:44 - since you began by
25:46 - arguing against a per se rule,
25:48 - how should we consider
25:50 - outlier circumstances like that
25:52 - where dominant suppliers
25:54 - may have set standards
25:56 - so low that if
25:59 - the evidence goes to the
26:00 - jury, this is the standard
26:03 - that inherently conveys
26:05 - an authority to the jurors.
26:08 - This is good enough.
26:09 - And how is the jury ever going
26:11 - to be able to reach a conclusion
26:13 - that, you know what, in
26:15 - this particular industry,
26:17 - the standards have
26:18 - been set too low?
26:19 - Is that something that could
26:20 - even ever happen under
26:22 - your view of of
26:23 - this area of law?
26:24 - It could happen if
26:25 - if if there's evidence
26:27 - put in the record of that,
26:28 - that the standard was
26:30 - one of the examples given
26:31 - was written by a lobbyist.
26:33 - Then you bring evidence.
26:35 - You have a rough
26:36 - 105 hearing on it
26:38 - as far as what you
26:39 - would say to a jury or tell.
26:41 - So courts to do
26:42 - this is done all the time
26:43 - in negligence cases.
26:44 - I would just say you apply
26:45 - the same procedural standards
26:47 - to strict liability for that
26:48 - than you would apply to that
26:50 - in the negligence cases that
26:51 - we have done for 100 years.
26:52 - Well, of course,
26:54 - this isn't negligence.
26:56 - I mean, you do acknowledge
26:57 - there's still a difference
26:58 - between strict.
26:59 - Absolutely. There's an overlap.
27:02 - But the the section to that
27:05 - that my opponent
27:06 - friendly opponent
27:09 - emphasizes, that is
27:10 - where the overlap ends.
27:12 - Due care is where
27:13 - the overlap ends.
27:14 - You cannot a defendant
27:15 - cannot introduce these as
27:17 - evidence of its due care.
27:18 - If it does that,
27:19 - even under my rule,
27:21 - that would be likely to
27:22 - raise a Rule 403 question
27:23 - because it would make
27:24 - that evidence confusing that.
27:26 - That was my only
27:27 - other question for now
27:28 - for the three was
27:30 - because I appreciate it.
27:31 - You begin by saying you're
27:33 - arguing against a per se rule.
27:36 - And I'm wondering how
27:38 - in your advocacy here
27:42 - you're not by
27:43 - implication saying that
27:45 - with this species of evidence,
27:47 - the probative value is always
27:49 - going to exceed
27:50 - the prejudicial effect
27:51 - and get over that bar
27:52 - that you were talking about.
27:54 - Well, your.
27:54 - Circumstances might
27:55 - be one situation where
27:57 - if there's actual proof of
27:58 - that, which is
27:59 - not in this record,
28:00 - that's not something
28:01 - that was ever argued
28:02 - by the plaintiff, that there's
28:03 - anything wrong with the answer
28:04 - standard here.
28:05 - But if there's a case like
28:06 - you talked about where
28:08 - there is evidence of industry
28:10 - overreach or something,
28:11 - something of that nature,
28:12 - then that would be something
28:13 - that you have a rule four
28:14 - or five,
28:15 - a Rule 105 hearing, and you
28:17 - raised a four or three question
28:19 - that because of that
28:20 - overreach demonstrated
28:21 - by whatever
28:22 - evidence there is, then
28:24 - in this particular
28:26 - instance, it's either
28:28 - could be confusing to the
28:29 - jury, a waste of
28:30 - time or whatever
28:30 - the four or three is.
28:32 - Mr. BECK Oh, let me
28:33 - just ask this quick question.
28:34 - Could you clarify
28:37 - a statement you
28:37 - made a little bit ago
28:38 - that the industry
28:40 - standards have input into
28:42 - the establishment of industry
28:43 - standard standards have
28:44 - input from both sides?
28:46 - Who are the both sides?
28:48 - Are these these these
28:50 - standards saying organizations
28:53 - are made up of engineers
28:55 - and anyone who is interested in
28:57 - that can apply to be on
28:58 - these committees and
29:00 - one of our amicus briefs
29:01 - discusses this at length.
29:03 - Both sides experts
29:05 - participate in these
29:06 - standard in these consensus
29:09 - attempts to reach
29:10 - consensus standards.
29:11 - So it's not like it's only
29:12 - industry that is involved.
29:14 - It's not always the other guys
29:16 - do it too, because the people
29:18 - who support the plaintiffs
29:19 - side are also in the room.
29:21 - Okay.
29:22 - And they try to reach a
29:24 - consensus and they do this.
29:26 - There are tens of
29:27 - thousands of these standards
29:28 - out there from
29:29 - the various groups.
29:30 - This per se rule would
29:31 - throw them all out.
29:32 - And that's that's
29:33 - why we're here.
29:34 - I assume that's why you took
29:36 - the case because
29:36 - of the the great
29:39 - possible
29:40 - breadth of this this
29:41 - per se rule that the.
29:43 - Superior Court.
29:44 - Justice. Daugherty Yeah.
29:46 - Based upon your explanation
29:47 - of your understanding of
29:49 - industry standards, I'm
29:50 - beginning to understand
29:52 - it seems like you're
29:53 - advocating for us
29:55 - to write that
29:55 - industry standard is
29:56 - an element of the duty of care
29:58 - which falls within negligence,
30:00 - considering this is a
30:01 - strict liability matter.
30:03 - How, how, how?
30:05 - Share with me why this
30:06 - Court should not write
30:07 - based upon your
30:09 - definition of industry
30:11 - standards, that
30:11 - it's really relevant
30:12 - to the element of duty of care,
30:14 - which is not applicable
30:15 - to strict liability.
30:17 - If it were framed in the
30:18 - if it were framed as
30:19 - a negligence issue,
30:21 - it could be relevant
30:22 - to due care.
30:22 - But it's not and is only
30:24 - relevant to the issues
30:26 - that are before the jury in
30:27 - a strict liability case here.
30:29 - That is the seven Wade
30:31 - fact, the well, the Wade factors
30:34 - where you have, you know,
30:36 - what's the what's the
30:37 - cost and benefit of this
30:39 - and this is some evidence
30:40 - that a jury could find
30:42 - that there's a sufficient
30:43 - cost benefit ratio,
30:44 - because this standard
30:45 - applies that you're not going
30:47 - to be able, as a defendant
30:49 - to just go and plop on the desk
30:50 - and say, here's the standard.
30:52 - We complied with
30:53 - it. We should win.
30:54 - It has to be tied in to one,
30:56 - one or more of the Wade factors
30:59 - if it's a risk
31:00 - utility test or to
31:01 - the consumer expectations
31:04 - test should which is
31:05 - not used here but should
31:06 - that be the relevant prong
31:09 - for any particular case?
31:11 - So it's not that you
31:12 - just put it on this.
31:13 - You have to go and
31:14 - set a foundation for it
31:16 - and establish through
31:17 - expert testimony or otherwise
31:19 - that this affected the design
31:21 - process and the trade offs
31:23 - that created the safety
31:24 - profile of this product,
31:26 - which is what the condition
31:28 - of the product is in this case
31:30 - on strict liability.
31:31 - If it goes to due care, if the
31:32 - defendant argues due care,
31:35 - they're going
31:35 - they're going to have
31:36 - that evidence is
31:36 - going to be excluded
31:37 - in strict liability
31:38 - and strict liability,
31:39 - because that's not
31:40 - that's where due care is,
31:41 - where the overlap ends.
31:43 - Counsel Can we get
31:44 - back to the weight factors
31:46 - I'm looking out at
31:49 - Wade factor number two,
31:52 - the safety aspects
31:53 - of the product,
31:55 - the likelihood that
31:56 - it will cause injury
31:57 - and the probable
31:59 - seriousness of the injury.
32:01 - Yes. Okay.
32:04 - And back to back to the the
32:07 - issue that I have
32:09 - with this record,
32:11 - I assume that you would
32:13 - argue that the standards
32:15 - both OSHA, Nancy, go to
32:17 - that second weight factor.
32:18 - It would correct.
32:19 - If we
32:19 - if we did
32:20 - not have an eliminate ruling,
32:22 - we would have had an expert
32:24 - testimony about that.
32:25 - And then the jury decides
32:26 - which side they believe.
32:28 - But, yes, an expert is can
32:30 - put on evidence that this
32:33 - that these these a set
32:36 - piece, A, B and C of this
32:38 - ANSI standards, I think in
32:40 - this case is 1018
32:41 - would be relevant
32:43 - to the safety aspects
32:44 - of this product
32:45 - and hopefully be
32:46 - able to say it's relevant.
32:47 - The safety aspects
32:48 - that were causal in the
32:49 - case. I'm looking at the rested,
32:51 - the weight factors
32:52 - and I just don't
32:54 - I just don't
32:55 - see as I understand
32:57 - what the anti and OSHA
32:59 - that you're talking about
33:01 - are supposed to encompass.
33:02 - I don't see where else
33:03 - they fit into the equation.
33:05 - And so I don't know.
33:07 - I mean, is it your argument
33:11 - that they should be that
33:12 - the standard should be
33:14 - admissible to establish
33:16 - the safety of the product?
33:18 - Yes, the safety of the product.
33:20 - The the trade the
33:22 - trade offs between
33:24 - the cost of alternatives.
33:26 - That's a different issue.
33:27 - See, that's why you
33:28 - keep going down this
33:30 - this rabbit hole with this.
33:32 - I mean,
33:32 - I don't know I don't know
33:34 - that that's with the anti
33:36 - your OSHA standards do
33:37 - and if there's actually a cost
33:39 - benefit analysis edge done
33:40 - in the formulation
33:41 - of the standards.
33:43 - I mean
33:43 - that goes to the
33:44 - ultimate question
33:45 - that the jury is
33:46 - asked to decide.
33:47 - And I think we get
33:48 - back to my question.
33:50 - How does anybody cross-examine
33:52 - the legitimacy of that cost
33:54 - benefit analysis
33:56 - that or that you're arguing
33:59 - are established through the
34:01 - ANSI and OSHA standards?
34:03 - It's not conclusive.
34:06 - It is at one piece of evidence
34:09 - that the jury can weigh
34:12 - in any given case that
34:15 - if they can choose to disbelieve
34:17 - it, the plaintiffs can
34:18 - urge them to disbelieve it.
34:20 - But you're saying
34:22 - that you're saying.
34:23 - Go ahead. I'm sorry.
34:25 - The result of the per
34:27 - se rule here is that
34:29 - there is no ultimate authority
34:31 - except the litigation specific
34:34 - opinions of paid experts
34:36 - and what you do is you
34:38 - you do is
34:39 - you put the OSHA's standard
34:40 - of the ANSI stand as one element
34:42 - that they can consider
34:44 - and discuss with the jury
34:45 - and discuss in their opinions.
34:47 - And the expert
34:49 - would what testify
34:50 - as to how the
34:51 - standard is formulated.
34:54 - How they stint, how
34:55 - the not know how
34:56 - that necessarily how
34:57 - they're formulated,
34:58 - how they're formulated
35:00 - unless it is challenged
35:01 - that they're formulated
35:02 - for some of the reasons that
35:03 - Justice Wecht talked about.
35:05 - It's do they meet the standards?
35:08 - You don't you don't need to
35:09 - go into the background
35:10 - of them in any case.
35:12 - Only if it is only if it is
35:13 - challenged for some reason.
35:15 - But there is the rub that's
35:17 - the concern I have about this.
35:19 - Hopefully, we will never have
35:20 - a Ford Pinto scenario again.
35:22 - But if we did, you know,
35:24 - reviewing that evidence,
35:26 - that car met the
35:29 - industry standard
35:32 - and yet it killed
35:33 - a lot of people.
35:35 - And it
35:38 - Ford was found liable in
35:39 - many cases where it not
35:41 - withstanding
35:41 - meeting the standard
35:43 - because the plaintiffs
35:44 - successfully argued
35:46 - that the standard was no
35:47 - good and the juries rejected it.
35:49 - So that's all we're
35:50 - asking, is that we see a lot
35:51 - that both sides are allowed
35:52 - to go and bring the standard
35:54 - and then present it to the
35:55 - jury and let the jury decide.
35:57 - Yeah, I guess that's what
35:58 - when I asked, could it
35:59 - be misleading to the jury?
36:01 - That's the concern
36:02 - I had in mind.
36:03 - Now, in a particular case,
36:06 - these are though
36:07 - that's an extreme case.
36:09 - There are hundreds of
36:10 - thousands of these standards.
36:12 - And you're using an extreme
36:13 - case to justify a per se rule
36:15 - that would throw them all out.
36:16 - I was just asking
36:17 - a question. Okay.
36:19 - Anyway, that is the
36:20 - just the superior court
36:21 - that was using was
36:22 - using extreme cases.
36:24 - My, my good friend here
36:25 - was using extreme cases
36:27 - to justify a per se rule
36:29 - that throws out everything
36:30 - from ANSI standards to the FDA.
36:33 - Now, it's a case with this.
36:34 - Can I just say rule?
36:36 - I mean, it's not a per se rule.
36:37 - I mean,
36:37 - if the plaintiff opens the door
36:39 - and you get in your standards.
36:42 - Yes. And sometimes it happens.
36:43 - I mean, that's not
36:44 - unusual for that.
36:45 - That does happen.
36:46 - But that
36:48 - Your Honor, what I would
36:49 - like to have and see that open
36:50 - that one way door becomes a
36:52 - two way street in these cases.
36:53 - And the defendant
36:54 - has the same right
36:56 - to put that before the
36:57 - jury in the first instance,
36:58 - as the plaintiff does.
37:00 - And then the. Downside.
37:01 - Where you're going ultimately is
37:03 - if the plaintiffs
37:05 - have the ability
37:06 - and authority to introduce
37:08 - an alternative design
37:10 - that is safer, which they
37:11 - do, then you should have.
37:14 - We should be able to turn it.
37:16 - We should be able to contested.
37:17 - And that's a fair argument.
37:18 - And this is a matter of
37:20 - what what briefing calls do
37:22 - dual relevance
37:24 - in under rule 105 a
37:26 - and that this is
37:27 - this is evidence
37:28 - that could potentially
37:29 - if it were phrased
37:30 - in a different way
37:31 - or phrased incorrectly,
37:32 - go to the issue of due care.
37:34 - It is also the type of
37:36 - standards that can go to issues
37:39 - such as the safety.
37:39 - The safety aspects of
37:40 - the product are that
37:42 - irrelevant to 4 to 8?
37:45 - And we've done
37:45 - that several times.
37:46 - Counsel Can. I
37:47 - understand you have other.
37:48 - I just I just
37:49 - I was listening very attentively
37:51 - to to what you were saying.
37:52 - I just want to make
37:53 - sure I understand,
37:53 - because I think
37:54 - you contradicted yourself
37:55 - and you didn't intend to do it.
37:57 - You're not asking us to
37:58 - rule that this evidence gets to
38:00 - a jury.
38:01 - You're just asking us to rule
38:03 - that there shouldn't be a per
38:04 - se bar to the
38:05 - court considering it,
38:07 - which is what
38:08 - the court did here.
38:08 - They just apply to per se bar
38:10 - that into a standard
38:11 - admissibility relevancy equation
38:14 - because just a few seconds ago
38:15 - you said you want this
38:16 - evidence before a jury.
38:17 - You're not asking
38:18 - us to rule that
38:19 - there's a per se rule
38:19 - that it goes to a jury?
38:20 - Yeah, in a general sense. Okay.
38:23 - In any particular case,
38:24 - there may be reasons
38:26 - why under rule 4403,
38:27 - usually if there's a reason,
38:30 - it wouldn't come in.
38:31 - In that case. Right.
38:32 - But that there you
38:32 - don't want a person rule.
38:34 - It can be presented. You
38:35 - don't want a per se rule.
38:36 - Either way.
38:37 - We don't have a
38:38 - situation where you get
38:39 - an interim and a
38:40 - ruling and that's
38:41 - you can't even reconsider
38:43 - and that's the end of it.
38:44 - And we don't that's
38:45 - one of the reasons
38:45 - we don't have a
38:46 - full record here.
38:47 - All right. Any other questions?
38:48 - Thank you very much, Mr. Beck.
38:50 - We'll hear from Mr.
38:51 - PASHMAN.
38:55 - Let me guess.
38:56 - You don't agree with that?
38:59 - You're correct, Your Honor.
39:02 - Chief Justice Todd and
39:03 - may please the court.
39:04 - My name is Howard Bachmann,
39:05 - and I represent the plaintiffs,
39:06 - Michael and Melissa Sullivan.
39:08 - With me at counsel table
39:09 - are Geoffrey Leslie and Stuart
39:11 - Ryan.
39:15 - Let me begin
39:16 - just by discussing some
39:18 - of the facts of this case,
39:19 - which were not discussed at all
39:21 - and the other side's,
39:22 - because I think it will help
39:23 - this court understand
39:24 - how this issue arises.
39:25 - This this case involves a
39:27 - type of rolling
39:28 - steel scaffolding
39:30 - that is constructed
39:31 - according to the instructions.
39:34 - And at that point,
39:36 - there's no dispute that
39:37 - the scaffolding is safe.
39:38 - However, when the scaffolding
39:40 - is moved from point to point,
39:41 - as it was here three times,
39:43 - the condition of the
39:45 - product can change
39:46 - and the platform
39:46 - can become unseated
39:48 - and not be noticed by
39:49 - the person using platform.
39:51 - And that's what happened here.
39:52 - So so the top of the
39:53 - platform became unseeded.
39:55 - My client went up to do
39:56 - additional work on the platform
39:58 - and he fell through the platform
40:01 - and and so this is a situation
40:03 - where the defect is
40:05 - as a result of using
40:07 - the product as
40:08 - opposed to the product
40:09 - in its original condition
40:10 - once its constructed.
40:11 - Now, I believe that the industry
40:13 - and governmental standards
40:14 - that my esteemed
40:15 - adversary is discussing
40:17 - focus on the
40:18 - condition of the product
40:19 - when it's originally constructed
40:21 - and not necessarily
40:22 - when it's used.
40:23 - And in fact, the plaintiffs
40:24 - put in evidence of
40:25 - these other scaffolds
40:27 - that don't manifest this defect
40:28 - when they're moved around.
40:30 - And and the jury in this
40:32 - case was laser focused
40:34 - on the precise product
40:35 - that was being challenged.
40:37 - And as you've
40:37 - heard this morning,
40:38 - what the defense would
40:39 - like to do is to is to bring
40:41 - in examples of similar
40:42 - scaffolding to its own
40:44 - and industry and governmental
40:45 - standards that that it says
40:47 - show that it at least meets
40:49 - some minimum safety level.
40:51 - But that puts the plaintiff
40:52 - in a case like this at a
40:54 - severe disadvantage,
40:55 - because the jurors are
40:57 - going to think that the folks
40:59 - who came up with these
41:00 - industry and government
41:01 - standards are experts as
41:02 - compared to themselves,
41:04 - and that the industry in
41:06 - government standards
41:08 - consider the evidence usage
41:09 - and the condition
41:11 - of the product.
41:12 - That's at issue in the case,
41:13 - which as Justice Donahue,
41:15 - I believe, correctly observed,
41:17 - there is no evidence whatsoever
41:19 - to establish that, and there's
41:20 - no way to cross-examine
41:22 - the creators of these standards
41:25 - to determine what level of
41:26 - thoughtfulness went into it.
41:29 - We discussed Ford Pinto.
41:30 - But and and, you know,
41:32 - I agree there never should
41:33 - be another case like that.
41:34 - But the Takata air bags, you
41:35 - know, come pretty close to that.
41:37 - And so Ford Pinto is
41:39 - is not a single example.
41:41 - Takata airbags were marketed.
41:42 - They comply with
41:43 - governmental industry standards.
41:45 - Just as Donohue,
41:46 - you touched upon
41:48 - the rules of evidence and the
41:49 - exception to the hearsay rule.
41:51 - But one of the reasons
41:52 - that Pennsylvania
41:53 - is different from other states
41:55 - is that it has not adopted
41:56 - the learned treatise
41:57 - exception to the hearsay rule.
41:59 - And I believe that that can
42:01 - and should prove fatal to the
42:03 - agency standards.
42:04 - Maybe governmental standards
42:06 - would not be that
42:07 - type of evidence.
42:08 - How do you reconcile
42:09 - that, though, with the fact
42:10 - that they're admitted
42:12 - regularly in negligence
42:13 - cases? The
42:20 - you know, I think that what
42:21 - the other side wants to do here
42:22 - is to put the actual
42:23 - standards in front of the jury,
42:25 - as opposed to just saying
42:27 - that, you know, I the expert
42:29 - looked at the standards and
42:31 - and they were satisfied here.
42:32 - So I think I think that
42:33 - that may be the difference.
42:35 - But but I you know, I don't
42:36 - know that you can actually get
42:38 - the industry standards
42:40 - in front of the jury
42:42 - by reading them
42:42 - to the jury or by, you know,
42:44 - just putting a copy of them
42:46 - before the jury.
42:47 - I think that, again, it
42:48 - comes through expert
42:49 - testimony that the
42:50 - expert has looked at it
42:51 - and and that's his opinion,
42:53 - that it complied
42:53 - with the standards.
42:55 - Well, Mr.
42:55 - Bastian, we don't really know
42:57 - we because it never got past
42:59 - the per se bar motion limited.
43:01 - You never had a chance to argue.
43:04 - Should are these standards
43:05 - are these standards hearsay?
43:07 - There was no we
43:08 - never got past that.
43:09 - They just want to get
43:10 - past the per se bar.
43:11 - See, so all these
43:12 - things that we're talking
43:13 - about how they
43:14 - come in, is it hearsay?
43:16 - Are they going to read
43:17 - the standards and
43:18 - relevancy, all that stuff?
43:21 - They you never got to that
43:22 - discussion in the trial court
43:23 - because a trial court just
43:24 - applied the superior court
43:25 - precedent set per
43:26 - se bar. It's over.
43:27 - I don't disagree with that.
43:29 - So in other words, I do
43:30 - agree with what you just said
43:31 - that was not
43:31 - considered in this case.
43:33 - And so what's wrong with
43:34 - what's wrong with letting
43:36 - with with getting
43:37 - rid of the per se bar,
43:38 - letting the trial court judges
43:40 - decided on a case by case basis,
43:42 - and if they let it in,
43:43 - let the very skilled lawyers
43:44 - on both sides of counsel table
43:46 - destroy the expert
43:48 - or prop up the expert
43:49 - and the jury gets
43:51 - charged and that's it.
43:53 - Well, there are two things
43:53 - that are wrong with it.
43:54 - The first is what I
43:55 - touched upon earlier,
43:56 - which is that it creates
43:57 - a sideshow or a case
43:58 - within a case focusing
44:00 - on these things that
44:02 - are simply
44:04 - that the manufacturer
44:06 - exercised due care.
44:08 - And then secondly, it's
44:09 - that this court, of course,
44:10 - would have to overrule
44:11 - the Lewis decision,
44:12 - which I didn't
44:13 - hear the other side
44:14 - spend any time at all
44:15 - even acknowledging exists,
44:17 - which had two bases
44:20 - for its rule that industry
44:22 - that industry standards
44:24 - that that was a similar case
44:25 - involving the fact that there
44:27 - were other types of equipment
44:29 - that that had the same
44:31 - type of operating system
44:34 - that made it easy
44:35 - to cross accidentally.
44:38 - And and so the two grounds
44:40 - and Lewis at this
44:41 - court relied upon
44:43 - or yes one of them was
44:43 - based on it as irrelevant.
44:45 - You have to
44:45 - keep strict liability
44:46 - separate from negligence.
44:47 - But the other was
44:48 - that it would improperly
44:49 - divert the attention of
44:50 - the jury from the product
44:51 - to the reasonableness
44:52 - of the manufacturer's
44:54 - conduct in choosing its design.
44:57 - That that to
44:58 - me and and the three
44:59 - judge panel of this case
45:01 - found that that second
45:03 - basis for this court's
45:04 - ruling in Lewis remains
45:06 - our good law, even
45:08 - even in the aftermath of
45:10 - Nasrallah's overruling and.
45:12 - Didn't overrule. Lewis.
45:14 - I'm sorry.
45:14 - Tincture did not overrule Lewis.
45:17 - Correct. Enter did
45:18 - not overrule Lewis.
45:19 - If even
45:22 - even Justice Taylor in his book
45:24 - Bogus Dissents from this
45:26 - court's dismissal
45:27 - of the exceptions
45:28 - of review as improperly granted,
45:30 - said that it would be possible
45:32 - that if this Court adopted
45:34 - the third statement
45:35 - that Lewis could
45:36 - remain good law.
45:38 - And and unlike in tenure where
45:39 - numerous justices of this court
45:42 - had spoken out
45:43 - repeatedly to criticize
45:45 - the standard that was before
45:47 - the court in intentionally,
45:49 - I haven't seen any criticism
45:52 - similar to that of
45:54 - the Lewis case.
45:55 - The current system works.
45:57 - If this court were to overrule
46:00 - Lewis would require the retrial.
46:02 - The retrial of numerous
46:04 - cases that are in the pipeline
46:07 - right now that
46:07 - have gone to verdict
46:08 - and that are
46:09 - currently on appeal, it
46:10 - would result in less safety,
46:13 - not more safety.
46:14 - And counsel, can
46:15 - I follow up on on
46:18 - this entire issue and just props
46:22 - and race is the issue that
46:24 - on its face makes sense.
46:26 - Why not just let the judge
46:28 - decide in each and every case?
46:31 - But I'm sure too hung up
46:32 - on still my predicate question.
46:35 - I understand
46:36 - there was emotion
46:36 - and alimony in this case,
46:38 - but there is argument
46:39 - on the motion alimony.
46:40 - And when there is an argument
46:42 - on the motion of alimony,
46:43 - there was an offer to
46:45 - establish what was going to be
46:48 - the defense perspective
46:50 - on what the jury should hear.
46:52 - I don't see it.
46:53 - I don't see it as a
46:54 - waiver argument,
46:55 - not by any stretch
46:56 - of the imagination.
46:57 - But what I'm saying is it
46:59 - leaves me at a loss as to
47:02 - understand what the standards
47:04 - were being offered to prove.
47:07 - In other words,
47:08 - what were they relevant
47:10 - to to use the terminology
47:12 - that your opposing
47:14 - counsel uses in their brief?
47:16 - Now I'm looking at the
47:19 - weight factors and
47:21 - apparently that's disregard
47:23 - regard to use the way factors
47:25 - to establish a design defect.
47:27 - Okay so that's
47:29 - what happened here.
47:31 - Why don't the ante
47:32 - in OSHA's standards
47:35 - go to the second weight factor,
47:37 - the safety aspects
47:39 - of the product.
47:41 - Now it goes further.
47:43 - It says the likelihood
47:44 - that it will cause injury
47:46 - and the probable
47:47 - seriousness of the injury.
47:49 - That's what the jury is
47:50 - supposed to consider in deciding
47:53 - whether it's safe
47:54 - in that regard.
47:56 - Did the anti standards
47:57 - and OSHA's standards
47:58 - go to the likelihood
48:00 - that a design will cause
48:02 - injury and probable
48:04 - serious have the injury or not.
48:08 - Know it just goes to
48:09 - the fact that this
48:11 - industry organization
48:13 - has has decided that scaffolding
48:15 - of this nature of this nature
48:17 - should have certain features.
48:18 - There's nothing in the
48:19 - record to demonstrate.
48:20 - Tell me you did
48:21 - this kind of work.
48:22 - I mean, what
48:23 - what what exactly are the anti
48:25 - and OSHA's standards doing?
48:28 - They're saying
48:29 - it's safe, correct?
48:31 - Yes. No, see, that's a
48:33 - problem with deciding this case
48:37 - is sort of the vacuum that
48:38 - at least I'm living in now.
48:40 - I, I think that on our side,
48:42 - you know, we would not be
48:44 - adverse to the court deciding
48:46 - that this is not a good case
48:47 - to decide this question.
48:48 - But but to answer
48:49 - your question directly,
48:51 - the the ocean, the standards
48:53 - are not in the record,
48:55 - and so is the appellate
48:56 - attorney in this case.
48:57 - You know,
48:57 - I can tell this court
48:59 - what they would or
49:00 - would not establish
49:01 - because they're not there.
49:02 - I'm at the same disadvantage as.
49:05 - You, the expert.
49:06 - There's an expert report
49:07 - by the defendant's expert.
49:10 - And that is.
49:10 - What that expert was
49:12 - going to. Say. Right.
49:13 - That that
49:14 - this scaffolding complied
49:15 - with those standards, period.
49:18 - Right. Is what is what he
49:19 - said in the expert report.
49:20 - Right. Okay.
49:26 - All right.
49:26 - Any other questions?
49:27 - Do you want to
49:28 - conclude, Mr. Marshman?
49:29 - Well, we.
49:30 - We believe, for the reasons
49:32 - that I have discussed, that's
49:33 - that this court should
49:35 - retain the Lewis decision
49:37 - because its ruling intent here
49:40 - did not does not require
49:42 - the overruling of Lewis.
49:43 - And that's the fact that this
49:45 - court recognized in Lewis
49:47 - that that allowing
49:48 - in this evidence
49:49 - would improperly divert
49:50 - the attention of the jury
49:51 - from the product
49:52 - to the reasonableness of
49:53 - the manufacturer's conduct
49:55 - in choosing its design
49:56 - is is precisely correct.
49:58 - Allowing in this evidence
50:00 - would create the
50:01 - type of sideshow
50:03 - and trial within a trial
50:04 - that would be severely
50:05 - advantageous, disadvantageous
50:08 - to the plaintiffs,
50:08 - because it's impossible
50:10 - to cross-examine
50:11 - these industry
50:12 - governmental standards.
50:13 - Evidence Mr.
50:14 - Basham and Justice
50:14 - Donahue as a final question.
50:16 - A broad based question
50:18 - where do you see
50:21 - negligence concepts
50:22 - overlapping with
50:24 - strict liability?
50:27 - Would we believe that
50:28 - this court got it exactly
50:30 - right in the Rove Reno
50:31 - decision, where this court said
50:34 - that in Pennsylvania,
50:36 - strict liability law
50:37 - remains a separate
50:39 - cause of action.
50:40 - So to my question, I agree
50:42 - with that decision
50:43 - wholeheartedly.
50:44 - My question is,
50:44 - where do they overlap?
50:46 - Clearly, in the 186
50:48 - pages of the Tennessee
50:51 - decision, there is
50:52 - numerous reference
50:53 - to the fact that
50:54 - there is an overlap.
50:56 - Where do you see the overlap?
50:57 - There is reference to that.
50:58 - And what the center
50:59 - of decision says
51:01 - is that strict liability
51:02 - arose as an amalgamation
51:05 - of negligence and
51:06 - warranty causes of action
51:08 - and and that
51:10 - it resulted in a separate and
51:11 - independent causes of action
51:13 - all of its own.
51:14 - Would you agree with
51:15 - the proposition that
51:16 - in terms of the foreseeability
51:18 - aspect of negligence law,
51:20 - there is an overlap
51:22 - between that negligence
51:23 - concept and strict liability?
51:27 - No, I would absolutely disagree,
51:29 - because I think that remains
51:30 - the law in Pennsylvania
51:31 - that the defendant,
51:31 - that a plaintiff doesn't
51:32 - have to prove that the
51:34 - defendant could
51:35 - foresee the defect
51:36 - that has manifested itself
51:38 - in order to recover
51:39 - in strict liability.
51:40 - But that is the one
51:41 - concept of negligence law
51:43 - that the court
51:44 - specifically addressed.
51:46 - It said
51:48 - maintaining these
51:49 - strict lines between
51:51 - these concepts
51:52 - have resulted in in
51:54 - unusual outcomes.
51:56 - And they cited
51:57 - specifically to Justice
51:59 - Capps opinion in FETs
52:01 - versus Crickett later.
52:04 - That was a foreseeability
52:06 - case, purely and simply.
52:08 - They obviously the manufacturer
52:13 - of a lighter, could foresee that
52:14 - a kid would pick up a lighter.
52:17 - But keeping this strict,
52:19 - the lines between forcible
52:21 - ability and negligence
52:22 - out of strict liability led
52:24 - to the conclusion that
52:26 - there was, you know, the the
52:28 - the impasse was created between
52:31 - and so Justice Cappie
52:32 - said no recovery.
52:35 - The ten year court said
52:37 - that's an unacceptable outcome.
52:40 - Don't you agree?
52:41 - And isn't foreseeability at
52:43 - least the one concept that
52:45 - at least I could identify
52:47 - that is clearly an overlap
52:49 - between negligence
52:50 - and stick liability?
52:53 - Well, I, I'm going to stick
52:54 - to my original answer, but
52:57 - but the reason that that I
52:59 - was a little bit
53:00 - taken by surprise
53:03 - by the question was
53:04 - simply that foreseeability
53:07 - was not an issue that
53:08 - this case directly presents
53:11 - the other side, the other side's
53:14 - witness, its corporate designee,
53:17 - testified that that
53:18 - it was foreseeable
53:20 - to Werner Company
53:21 - that the platform
53:22 - could become dislodged
53:24 - when when the
53:24 - scaffolding is moved around.
53:26 - And that's in the reproduced
53:28 - record at 534 to 540.
53:29 - Okay. So you
53:30 - would win that point.
53:31 - Okay.
53:31 - But that is an overlap between
53:33 - negligence and strict liability.
53:35 - You really I'm just
53:36 - taking the opportunity
53:37 - to try to make more
53:38 - sense out of the change.
53:39 - Your decision by
53:40 - asking you that question.
53:41 - Okay.
53:45 - All right.
53:45 - Thank you very much.
53:46 - Thank you. Thank
53:47 - you both. Well argued.
53:49 - Our next case is
53:50 - in adoption of MDL.
53:53 - This is an adoption
53:54 - case from York County.
53:56 - Under Pennsylvania law,
53:57 - a person may adopt a child,
53:59 - while one parent still retains
54:00 - parental rights in
54:01 - two circumstances.
54:03 - One, the person
54:04 - may adopt the child
54:06 - if that person is the
54:07 - spouse of the parent.
54:08 - Who retains parental rights.
54:10 - In other words, this is called
54:12 - the stepparent adoption.
54:14 - And then the other exception
54:15 - is if the court
54:16 - decides that cause
54:18 - has been shown for the
54:19 - person to adopt the child,
54:21 - while one parent.
54:22 - Retains parental rights.
54:24 - The question in this case is
54:25 - how broadly the cause
54:27 - exception should apply.
54:29 - In this case, the
54:30 - mother and her boyfriend
54:33 - ask the courts
54:33 - to terminate the
54:34 - father's parental rights
54:36 - regarding his six
54:37 - year old daughter.
54:38 - The basis was the
54:39 - fact that the father
54:40 - had given up his parental
54:42 - claim for over six months
54:44 - and had failed to perform
54:45 - fatherly duties for that time.
54:47 - In the meantime,
54:49 - the boyfriend had been
54:50 - acting in the role of the father
54:51 - and is known to the
54:52 - child as the father.
54:54 - The trial court agreed
54:55 - with the mother and the
54:56 - boyfriend and decided
54:57 - to terminate the
54:58 - father's parental rights.
55:00 - The court also said it
55:01 - would allow the boyfriend
55:02 - to adopt the child in
55:03 - a future proceeding.
55:06 - The father appealed
55:07 - to the Superior Court
55:08 - and the court ordered the
55:10 - case back to the trial court
55:11 - to decide if cause
55:12 - had been shown
55:13 - to terminate the
55:14 - father's parental rights.
55:16 - The father did not think that
55:17 - the trial court should consider
55:18 - that issue and asked the
55:19 - Supreme Court to take his case.
55:22 - The court agreed to do so.
55:24 - The father contends in his brief
55:26 - that the adoption law requires
55:28 - both parents parental rights
55:30 - to be terminated before
55:32 - a child may be adopted.
55:34 - The only exception to that
55:36 - is the stepparent exception.
55:38 - That is, if an adoptive parent
55:40 - is the spouse of
55:41 - an existing parent.
55:43 - Here,
55:43 - the boyfriend
55:44 - should not be eligible
55:45 - for that exception
55:45 - because he is not
55:46 - married to the mother.
55:48 - And the father also argued
55:49 - that the cause shown exception
55:51 - should not be
55:51 - allowed to apply here.
55:53 - Or else it could
55:54 - invite mischief.
55:55 - For example, during
55:56 - divorce proceedings,
55:58 - parents might try to
55:59 - use the clause exception
56:01 - to try to get courts
56:02 - to eliminate the other
56:03 - parents parental rights.
56:05 - The mother predictably,
56:06 - argues to the contrary.
56:08 - She asserts that the
56:09 - statute should be read
56:10 - to allow the court to exercise
56:12 - discretion to find cause exists
56:14 - in cases like
56:16 - cases like this one.
56:17 - She argues that
56:18 - there is nothing wrong
56:19 - with allowing trial
56:20 - courts this discretion,
56:21 - as they are more than
56:23 - capable of making these factual
56:24 - findings under
56:26 - that legal standard.
56:28 - Now, let's go into the courtroom
56:29 - and watch the parties arguments.
56:33 - Okay.
56:33 - In this case, a
56:34 - mother petitioned
56:35 - for the involuntary
56:36 - termination of her ex-husband's
56:39 - parental rights over
56:40 - their child in anticipation
56:42 - of a proposed adoption by
56:44 - mother's long term partner.
56:47 - Under the Adoption Act,
56:48 - the parent of an adoptee must
56:50 - relinquish their parental
56:52 - rights over the child.
56:53 - Unless the adopting party
56:56 - is their spouse or the parent
56:59 - has shown cause to excuse
57:00 - the terminate and requirement.
57:03 - Here we must determine
57:04 - whether the proposed
57:06 - adoption by mother's
57:07 - partner can constitute cause
57:10 - to excuse the termination
57:11 - requirement under the Adoption
57:13 - Act as the Superior
57:15 - Court impliedly concluded.
57:20 - Good morning,
57:20 - Madam Chief Justice.
57:22 - Members of the Court.
57:23 - May it please the Court.
57:24 - My name is Dean Reynoso, here
57:25 - on behalf of the
57:26 - appellant Father
57:28 - and as Justice Todd aptly
57:30 - stated, the facts of the case
57:32 - is this I'm going to go right
57:33 - to the heart of the case.
57:34 - This case is about
57:35 - the for cause exception.
57:38 - There's two cases from
57:39 - the Supreme Court, RB,
57:40 - F and R.D., I
57:41 - believe the initials are
57:43 - RB F is factually completely
57:45 - distinguishable from this case.
57:47 - In that case, there are two
57:48 - two consolidated appeals
57:50 - involving two same sex
57:52 - partners who wanted to
57:54 - who had one of the partners had.
57:55 - Left the microphone
57:56 - a little bit.
57:57 - In vitro, in vitro
57:58 - fertilization.
57:59 - And the second partner.
58:00 - The second case involved
58:01 - a father who had solely
58:02 - adopted two children,
58:05 - and then they wanted to
58:06 - have their partner adopt.
58:08 - And back
58:08 - when that case was presented
58:10 - to the court, same sex marriages
58:11 - were not permitted
58:12 - in the Commonwealth.
58:14 - In that case, there
58:15 - was a specific reason
58:16 - they could not meet the
58:17 - elements of the adoption act.
58:18 - They could not marry unless
58:20 - and the adoption
58:21 - could not proceed
58:22 - unless the other parent.
58:24 - And that was cause.
58:25 - That was gone.
58:26 - That was found to be cause
58:28 - m r d did not reach the cause
58:29 - analysis per se.
58:30 - There is a sense
58:32 - of the court justice.
58:34 - I think it was Justice Todd
58:35 - who wrote that decision.
58:37 - Indicated a concurrence.
58:39 - And a concurrence. That's right.
58:40 - A special concurrence,
58:41 - I believe it was titled.
58:42 - In that case, they
58:43 - the court determined that there
58:45 - was gamesmanship going on.
58:46 - It was not a natural
58:47 - it was not a new family unit
58:49 - per se, that new family unit,
58:51 - because the mother
58:52 - was having her father
58:53 - try to adopt the child
58:55 - and tried to terminate
58:56 - the father's rights.
58:57 - Well, and if I could
58:58 - just mention something
58:59 - that I think is relevant to
59:01 - this case for both sides,
59:03 - in my concurrence, which was not
59:05 - a majority opinion, it
59:06 - was just my offering.
59:08 - I indicated that societal
59:10 - norms have changed
59:12 - and we don't live any longer
59:14 - in a society where every family
59:16 - is expected to have a
59:18 - mother, a father and children.
59:20 - Sometimes there's
59:21 - a single parent raising children
59:22 - and doing a perfectly good
59:24 - job of it.
59:25 - So that I thought that
59:26 - this clause requirement out
59:28 - and the spousal requirement
59:31 - was an anachronism.
59:34 - Nonetheless, in my
59:35 - concurrence, I acknowledged that
59:37 - that's a question.
59:38 - So the legislature and I, in
59:40 - essence, asked the legislature
59:42 - to revisit this,
59:44 - and that was 2016,
59:46 - and they haven't done so.
59:47 - So I have to assume
59:49 - that the legislature is fine
59:51 - with the spousal requirement
59:53 - and is fine with
59:55 - the statute as it is.
59:57 - So given that backdrop,
59:59 - 763 please proceed.
01:00 - 02.318 And I acknowledge that the
01:00 - 03.766 Court the society is changing.
01:00 - 04.874 Parents and families are
01:00 - 06.202 changing as society changes.
01:00 - 07.094 However, the
01:00 - 08.271 legislature, I think, is
01:00 - 09.665 is the body of the body in this
01:00 - 11.174 commonwealth who makes the law.
01:00 - 12.519 The legislature provided
01:00 - 13.910 for an exception to the
01:00 - 15.119 to the relinquishment
01:00 - 15.678 requirement.
01:00 - 16.921 That exception is in
01:00 - 18.314 stepparent adoption.
01:00 - 19.849 They have not.
01:00 - 20.859 The legislature could
01:00 - 22.185 have after the invitation
01:00 - 23.886 from from Your Honor,
01:00 - 24.988 to revisit it
01:00 - 26.514 and change that law to say,
01:00 - 28.291 okay, well, now might be time
01:00 - 30.003 to change that and allow
01:00 - 31.494 this for cause exception to
01:00 - 33.701 to also include or
01:00 - 36.165 allow the requirement
01:00 - 38.699 not be there for for situations
01:00 - 40.136 like the one we have here.
01:00 - 41.104 They didn't do that.
01:00 - 42.245 And that's, that's how
01:00 - 44.040 this case is different, I think.
01:00 - 45.347 Council let's follow
01:00 - 46.876 up or flesh that out.
01:00 - 49.796 2901 specifically says unless
01:00 - 52.382 the court for cause shown
01:00 - 54.429 while I agree with her honor
01:00 - 56.552 that it is left for the General
01:00 - 57.615 Assembly to catch
01:00 - 58.955 up to the evolution
01:00 - 01.491 of the new family structure.
01:01 - 03.554 But this is very
01:01 - 04.961 this this statute
01:01 - 06.729 specifically permits
01:01 - 08.965 the court to, on a case
01:01 - 10.392 by case basis, to decide
01:01 - 11.441 whether for cause
01:01 - 12.502 has been shown.
01:01 - 14.003 So if the evidence
01:01 - 15.004 on this record
01:01 - 16.487 is that mother and
01:01 - 19.075 paramour are long time lovers
01:01 - 21.218 for five years or more, share
01:01 - 23.279 a child and have an intent
01:01 - 26.449 to continue this relationship.
01:01 - 28.315 Why is that not sufficient,
01:01 - 30.553 excluding the old term spouse?
01:01 - 31.800 Because ten years ago
01:01 - 32.955 when we said spouse,
01:01 - 34.552 we could not include
01:01 - 36.092 same sex spouses.
01:01 - 36.872 We had to terminate
01:01 - 37.593 parental rights
01:01 - 39.328 and do second parent adoptions.
01:01 - 41.515 So let's step aside the whole
01:01 - 43.499 General Assembly scheme,
01:01 - 45.608 because that's not necessarily
01:01 - 47.603 relevant to the statute which
01:01 - 49.524 places the focus on the
01:01 - 52.141 court for finding just cause.
01:01 - 53.576 So what's the cause?
01:01 - 56.145 My question is,
01:01 - 59.215 why should a court not find that
01:01 - 01.165 a long established relationship
01:02 - 02.885 between a man and a woman
01:02 - 04.053 who are sharing
01:02 - 05.354 a child among themselves
01:02 - 06.878 and now wish to bring this
01:02 - 07.851 other child into
01:02 - 08.958 the relationship
01:02 - 09.807 based upon the
01:02 - 10.860 fact that the child
01:02 - 12.395 doesn't know who dad is
01:02 - 13.988 and assumes paramour is
01:02 - 16.232 dad and cause this person dead
01:02 - 18.501 and that this is about the
01:02 - 20.536 ultimate permanency for a child.
01:02 - 22.972 Why would you argue that?
01:02 - 24.729 That's not overwhelming evidence
01:02 - 26.509 clear and convincingly to show
01:02 - 29.879 for cause has been that the.
01:02 - 30.952 To answer that question in
01:02 - 32.215 this case the superior court
01:02 - 33.805 analyzing the for cause
01:02 - 36.185 exception of 2901 says for cause
01:02 - 37.809 as it was citing to RPF
01:02 - 39.956 and Marty the superior court
01:02 - 41.526 in this case said When
01:02 - 43.192 parties cannot attain
01:02 - 44.128 all the elements of an
01:02 - 45.261 adoption act, this case.
01:02 - 46.253 I don't think that I
01:02 - 46.929 don't think that's a
01:02 - 47.730 I don't think that's a case.
01:02 - 48.331 I don't think
01:02 - 49.554 there's a situation
01:02 - 50.800 where they cannot
01:02 - 52.112 follow all the requirements
01:02 - 53.202 of the adoption act.
01:02 - 54.771 They choose not to.
01:02 - 55.588 I think the testimony
01:02 - 56.706 at the at the termination.
01:02 - 58.042 Is that what have they failed
01:02 - 59.542 to accomplish? To get married?
01:02 - 01.244 To get. Married. Against that.
01:03 - 02.549 But why do I have powerful
01:03 - 04.080 arguments that at the court.
01:03 - 05.080 Could I fall up on Justice
01:03 - 06.182 Daugherty's questionnaire?
01:03 - 07.241 You still haven't
01:03 - 08.251 answered my question
01:03 - 09.886 because this is pivotal to me.
01:03 - 12.522 They they
01:03 - 13.360 cannot I think they
01:03 - 14.490 choose not to testimony
01:03 - 15.057 at the termination
01:03 - 15.691 hearing with mother
01:03 - 16.514 said that was asked,
01:03 - 17.527 are you going to marry
01:03 - 18.097 or is that as
01:03 - 19.228 marriage in the future?
01:03 - 19.865 If I recall the
01:03 - 20.830 testimony correctly,
01:03 - 21.653 she said that might be
01:03 - 22.765 in the cards in the future.
01:03 - 24.155 Not right now. The answer
01:03 - 25.401 was we cannot marry.
01:03 - 26.465 We do not want to marry
01:03 - 27.837 and we're not going to marry.
01:03 - 29.539 That might be in the future.
01:03 - 30.821 So that's why they choose
01:03 - 32.542 not to meet the elements of the
01:03 - 33.543 Adoption Act.
01:03 - 34.812 But State has to
01:03 - 37.146 qualify for that exception.
01:03 - 38.114 I got that.
01:03 - 39.343 Maybe they didn't marry for
01:03 - 40.917 the record wasn't brought forth.
01:03 - 41.939 Maybe they didn't marry
01:03 - 42.985 for religious reasons
01:03 - 44.141 or personal religious
01:03 - 45.822 reasons or political reasons
01:03 - 47.323 or financial reasons.
01:03 - 48.958 That was not delved into.
01:03 - 50.070 That's that's they are
01:03 - 51.360 facts to be considered.
01:03 - 53.052 The question before this
01:03 - 55.131 court is why should we not take
01:03 - 56.966 the totality of the evidence
01:03 - 58.534 as proffered to the court
01:03 - 00.033 to determine whether
01:04 - 01.537 clear and convincingly
01:04 - 03.644 cause has been shown to permit
01:04 - 05.575 this second person adoption?
01:04 - 06.642 This is not about whether
01:04 - 07.777 they're getting married.
01:04 - 08.754 This is about whether
01:04 - 10.179 that child's going to have a
01:04 - 11.996 legitimate connection
01:04 - 13.549 to a particular father,
01:04 - 14.817 as opposed to a man
01:04 - 15.629 who vowed not to
01:04 - 16.619 pay child support
01:04 - 18.012 and only comes in after the
01:04 - 19.689 termination petition has come.
01:04 - 21.591 So share with me
01:04 - 22.225 are we to take
01:04 - 23.159 into consideration
01:04 - 23.772 that your client
01:04 - 24.760 refused to pay for this
01:04 - 26.262 child has not seen this child.
01:04 - 27.230 The child doesn't know him,
01:04 - 28.104 doesn't know his name
01:04 - 29.298 and doesn't refer to that.
01:04 - 30.766 Are we to assume
01:04 - 32.045 that that those facts should
01:04 - 33.302 not come into this record
01:04 - 34.686 to determine what's
01:04 - 36.138 the best for this child
01:04 - 37.338 in this child's future
01:04 - 38.507 and his permanency?
01:04 - 39.323 I think what the court
01:04 - 40.276 has to do is follow the
01:04 - 41.177 the adoption act.
01:04 - 42.178 So is the question,
01:04 - 43.048 should we take that
01:04 - 44.313 stuff into consideration?
01:04 - 45.748 Because you seem to be arguing
01:04 - 46.549 we should be taking
01:04 - 47.416 into consideration
01:04 - 48.684 the fact that mother indicated
01:04 - 49.406 while we may get
01:04 - 50.519 married down the line.
01:04 - 52.436 See, that's a
01:04 - 53.789 potential speculation.
01:04 - 55.332 We have evidence and proof
01:04 - 56.893 that your client refused to pay
01:04 - 58.199 support, support it to
01:04 - 59.829 agree not to pay support,
01:05 - 01.242 and hadn't seen the child
01:05 - 02.732 for what, two or three years?
01:05 - 04.132 And the child at the tender age
01:05 - 05.601 doesn't even know who's David.
01:05 - 06.699 Oh, it's somebody
01:05 - 08.104 I go to school with.
01:05 - 08.704 Are we.
01:05 - 09.105 Are you.
01:05 - 09.305 Are you
01:05 - 10.695 is it your contention
01:05 - 11.908 that those facts
01:05 - 13.300 are not in this record for
01:05 - 14.877 our judicial determination,
01:05 - 16.434 whether for cause
01:05 - 17.880 has been shown?
01:05 - 18.422 Your Honor, I
01:05 - 19.415 believe respectfully,
01:05 - 20.388 I believe the fact is that
01:05 - 21.384 there's an adoption act.
01:05 - 22.485 The legislature is.
01:05 - 23.986 Has I. That's your question.
01:05 - 25.013 It's a real simple
01:05 - 26.122 yes or no answer.
01:05 - 26.884 The record is what the
01:05 - 28.057 record is. The facts are there.
01:05 - 28.648 The court has to
01:05 - 29.792 consider what the record is.
01:05 - 30.600 They're not the facts.
01:05 - 31.394 They're the record.
01:05 - 32.091 But Again, I go
01:05 - 33.095 back to my argument
01:05 - 33.796 as cause
01:05 - 35.047 what the legislature has said,
01:05 - 36.365 what's required for adoption,
01:05 - 38.265 either a spousal, either
01:05 - 39.902 there's a saying, there's a
01:05 - 41.871 there's a stepparent adoption
01:05 - 42.359 or both parents
01:05 - 43.239 relinquish their rights.
01:05 - 43.768 And that didn't
01:05 - 44.573 happen in this case.
01:05 - 45.519 And there's no reason as
01:05 - 46.609 to why that cannot happen
01:05 - 47.882 as a superior court, as
01:05 - 49.045 what happened in RPF.
01:05 - 50.112 It could not happen.
01:05 - 51.482 But see, I, I fail
01:05 - 53.182 to follow that logic
01:05 - 55.008 in the sense that the one
01:05 - 57.153 key missing in the adoption
01:05 - 58.538 act is the termination
01:05 - 00.456 of father's parental rights.
01:06 - 02.907 Yet 2901 specifically
01:06 - 04.894 says unless good cause
01:06 - 06.500 can be determined otherwise,
01:06 - 08.130 no decree shall be entered
01:06 - 09.557 unless the natural parent's
01:06 - 11.167 rights are being terminated.
01:06 - 13.903 So you're trying to use
01:06 - 15.031 the argument that, well,
01:06 - 16.372 we haven't met the element
01:06 - 17.110 of failure to
01:06 - 18.507 terminate Dad's rights
01:06 - 20.056 when the concept of
01:06 - 22.144 2901 is to circumvent that.
01:06 - 23.237 If we could show
01:06 - 24.380 good cause, a.k.a.
01:06 - 25.853 he doesn't be involved
01:06 - 26.682 in the child's life,
01:06 - 27.917 the child's at the tender age
01:06 - 28.978 and wants to develop a
01:06 - 30.453 relationship and a long term
01:06 - 32.255 legitimate relationship and
01:06 - 34.090 financial security with another.
01:06 - 35.891 So I'm confused.
01:06 - 36.858 How do you say what's
01:06 - 38.361 missing from the Adoption Act?
01:06 - 39.428 In this particular
01:06 - 40.224 case, pursuant to
01:06 - 41.330 the specific statute?
01:06 - 42.431 2901.
01:06 - 43.250 I go back to how the
01:06 - 44.467 court has interpreted that.
01:06 - 45.926 2901 and there's a dearth
01:06 - 47.703 of case laws, only two cases
01:06 - 49.005 essentially from this court.
01:06 - 50.272 RBA and RBA.
01:06 - 51.406 If there was a situation
01:06 - 52.708 where that cannot happen,
01:06 - 53.830 that's they say they found
01:06 - 55.111 good cause, said the parent.
01:06 - 56.712 They cannot marry.
01:06 - 58.555 So there's good cause in Maddy
01:06 - 00.483 that analysis wasn't reached.
01:07 - 02.618 Justice Bear
01:07 - 03.386 was concerned in
01:07 - 04.262 his concurring opinion
01:07 - 05.121 as to saying again,
01:07 - 05.855 that's for the point
01:07 - 06.889 of the legislature
01:07 - 08.524 to decide that this this whole
01:07 - 09.643 concept of a new family
01:07 - 11.327 unit creating a new family unit.
01:07 - 12.695 Well, that's not in the statute.
01:07 - 14.063 That's not in the adoption act.
01:07 - 16.165 So could you acknowledge
01:07 - 17.915 that if fathers rights
01:07 - 19.769 are not involuntarily
01:07 - 20.725 terminated, he
01:07 - 22.605 certainly could be denied
01:07 - 23.630 visitation under
01:07 - 24.874 the custody laws?
01:07 - 25.441 Absolutely.
01:07 - 26.413 This this issue could be
01:07 - 27.777 dealt with in the custody court
01:07 - 28.844 because the courts are not going
01:07 - 30.326 to provide custody to a father
01:07 - 31.981 who has not been in the picture
01:07 - 32.982 since 2019.
01:07 - 35.851 And I don't disagree
01:07 - 37.653 one bit with everything.
01:07 - 39.021 Justice Daugherty
01:07 - 40.656 had has said about
01:07 - 41.534 what would make
01:07 - 42.792 sense in this case,
01:07 - 43.928 what would be right,
01:07 - 45.261 what we'd like to do.
01:07 - 47.651 I just may differ in the
01:07 - 49.965 sense that I do think
01:07 - 51.859 it's a legislative determination
01:07 - 53.002 whether to remove
01:07 - 55.037 the spousal requirement.
01:07 - 56.439 And so I guess in that.
01:07 - 59.515 It's, say, child looses out on
01:07 - 00.943 how many years of child support
01:08 - 01.921 because support is
01:08 - 02.552 retroactive to
01:08 - 03.512 the date of filing.
01:08 - 05.114 So now all these years,
01:08 - 06.368 the father left the child
01:08 - 07.950 and didn't support the child.
01:08 - 08.684 Child goes
01:08 - 10.281 without financial assistance
01:08 - 11.787 and could potentially be
01:08 - 13.613 penniless and the
01:08 - 14.824 child gets nothing.
01:08 - 15.883 So the child suffers
01:08 - 17.159 for the sins of the father.
01:08 - 17.760 For what?
01:08 - 18.427 A statute
01:08 - 19.862 which permits the court
01:08 - 20.990 the discretion to make a
01:08 - 22.331 determination of recourse.
01:08 - 23.076 But that's a
01:08 - 24.366 discussion further back.
01:08 - 25.589 Could I could I get
01:08 - 26.902 a question in here
01:08 - 28.141 at the beginning
01:08 - 29.638 of your argument?
01:08 - 31.736 You you acknowledged
01:08 - 33.542 that we're here
01:08 - 36.479 on 29.
01:08 - 38.547 We're here on 29 or one.
01:08 - 39.849 The cause exception.
01:08 - 42.918 We're not here on 2903.
01:08 - 44.320 Stepparent adoption.
01:08 - 45.521 You're with me so far, right?
01:08 - 48.491 Yes. Okay.
01:08 - 52.242 Why? And you you
01:08 - 54.697 stand on them already.
01:08 - 55.649 And as you know, I
01:08 - 56.732 was very concerned
01:08 - 58.055 in that case with,
01:08 - 59.401 the gamesmanship
01:08 - 00.438 that the facts in this case
01:09 - 01.770 are very different, aren't they?
01:09 - 02.984 I mean, doesn't isn't
01:09 - 04.573 it isn't it possible that
01:09 - 06.488 that in taking this case,
01:09 - 07.810 we were interested in in
01:09 - 10.212 explicating the cause exception
01:09 - 13.048 and the fact that
01:09 - 16.018 the legislature has
01:09 - 19.054 left that
01:09 - 20.320 provision in would
01:09 - 22.391 suggest, would it not, that
01:09 - 25.531 that this court can expound
01:09 - 27.730 what cause shown is.
01:09 - 29.606 And to the extent that
01:09 - 32.101 that's the case, why isn't this
01:09 - 34.503 an appropriate case
01:09 - 38.874 for an opportunity
01:09 - 39.985 to show by clear and
01:09 - 41.177 convincing evidence
01:09 - 43.609 that the adoption
01:09 - 44.613 should go forward?
01:09 - 46.403 In other words, isn't
01:09 - 48.817 this case that, unlike DD,
01:09 - 51.275 is the appropriate case for
01:09 - 53.122 the cause shown exception?
01:09 - 54.784 Isn't this the case
01:09 - 56.559 that t's up for us
01:09 - 59.695 an opportunity
01:10 - 01.862 for the police to
01:10 - 03.699 establish causation
01:10 - 05.748 given the apparent absence
01:10 - 07.236 of the gamesmanship
01:10 - 09.686 that troubled us in ma
01:10 - 11.507 d because otherwise
01:10 - 14.064 aren't we just nullifying the
01:10 - 16.145 Legislature's authorization
01:10 - 17.642 for the opportunity
01:10 - 18.447 to show cause?
01:10 - 19.625 Doesn't it just
01:10 - 21.383 render it a nullity?
01:10 - 22.284 I appreciate the question.
01:10 - 23.501 Justice, work, but I
01:10 - 24.987 respectfully disagree.
01:10 - 27.656 What I what I see here is I'm
01:10 - 28.282 I've gone and I
01:10 - 29.358 looked at the authority
01:10 - 30.539 that the opinion
01:10 - 31.894 RBF specifically
01:10 - 32.995 and there there was a
01:10 - 33.815 because there was a
01:10 - 35.097 reason they could not marry
01:10 - 35.998 and then obviously
01:10 - 36.599 obviously a
01:10 - 37.396 disagreement among this
01:10 - 38.534 court that's been going on for
01:10 - 39.902 for obviously through m, r, d
01:10 - 41.449 and and there was a case
01:10 - 43.539 by Judge Daugherty that didn't
01:10 - 44.740 really talk about the cause
01:10 - 45.474 analysis, but
01:10 - 47.109 there's obviously a disagreement
01:10 - 47.784 among the court about
01:10 - 48.744 among the court about that.
01:10 - 49.578 But I go back to what
01:10 - 51.271 the superior court said in
01:10 - 53.315 this case, that 2901 is there
01:10 - 55.384 when the parties cannot meet
01:10 - 56.243 all the elements
01:10 - 57.453 of the adoption act.
01:10 - 58.602 And again, I don't
01:10 - 59.955 think we have that here.
01:10 - 00.938 We don't have a situation
01:11 - 02.224 where the parties cannot meet.
01:11 - 03.859 So cause doesn't step in.
01:11 - 04.560 Well, we're going to
01:11 - 04.994 we're going to have
01:11 - 06.468 a long discussion about
01:11 - 08.030 this, I'm sure, within
01:11 - 08.998 within our court.
01:11 - 11.033 I guess one of the
01:11 - 13.080 questions is how broadly we
01:11 - 15.304 could read for cause shown.
01:11 - 17.106 Because
01:11 - 19.331 my proffer is that
01:11 - 21.176 cause shown means
01:11 - 23.209 cause y you cannot
01:11 - 25.047 meet the statutory
01:11 - 28.412 not cause shown by other
01:11 - 29.766 reasons why this
01:11 - 31.387 would make sense.
01:11 - 32.306 And there are plenty
01:11 - 33.155 of other reasons
01:11 - 35.685 why this would make sense, but
01:11 - 38.494 cause shown why you cannot meet
01:11 - 40.302 y she could not meet
01:11 - 41.797 the spousal requirement
01:11 - 45.301 is in my view at this point.
01:11 - 46.869 There are two solutions to that.
01:11 - 48.442 One, they marry and meet
01:11 - 50.172 the spousal requirement.
01:11 - 51.999 Or two, they demonstrate
01:11 - 53.642 why they cannot meet the
01:11 - 55.210 spousal requirement,
01:11 - 57.023 such as he's encumbered to
01:11 - 59.281 another life and another state
01:11 - 00.783 and he cannot remarry.
01:12 - 02.273 Maybe, maybe that would
01:12 - 03.786 because I don't know.
01:12 - 06.040 But to my view as I've
01:12 - 08.524 read it cause pertains
01:12 - 10.054 to your inability to meet
01:12 - 11.794 the statutory requirement.
01:12 - 13.083 And I imagine that
01:12 - 14.830 your understanding is.
01:12 - 15.394 I'll leave it at
01:12 - 15.931 that, Your Honor.
01:12 - 16.449 That's how I'll
01:12 - 17.132 finish my case. I
01:12 - 20.436 wouldn't get counsel,
01:12 - 21.671 but then we would still
01:12 - 23.472 affirm the superior court. We'd
01:12 - 26.014 be remanded and there'd
01:12 - 28.110 be an opportunity to establish,
01:12 - 29.665 for example, I live in
01:12 - 31.814 Utah, I can't get a divorce.
01:12 - 33.115 It's where I was married.
01:12 - 33.804 I live here for
01:12 - 34.750 the last 20 years,
01:12 - 35.928 but I'm still married, so I
01:12 - 37.086 can't get married again.
01:12 - 39.688 But I think. That's a
01:12 - 40.599 perfectly legitimate
01:12 - 41.857 reason why you can't meet
01:12 - 43.134 the statutory requirement
01:12 - 44.693 that would require a remand.
01:12 - 45.836 But but I think the
01:12 - 46.762 court can at least provide
01:12 - 48.130 some instructions and guidance
01:12 - 49.744 as to forecasts for causes
01:12 - 51.633 you to get to the fore cause
01:12 - 52.860 you have to establish
01:12 - 54.169 some reason why you cannot
01:12 - 56.002 meet the statutory
01:12 - 58.040 requirements of the adoption.
01:12 - 59.508 Act just to STOCKARD.
01:12 - 00.696 Yes share with me
01:13 - 02.544 and 2901 is specifically
01:13 - 03.953 that you have to meet
01:13 - 05.147 the statutory requirements
01:13 - 07.160 as opposed to unless you
01:13 - 09.485 can terminate natural parent.
01:13 - 11.920 Or parents rights.
01:13 - 12.585 It does not say
01:13 - 13.455 that as governor.
01:13 - 15.057 Okay, but you care for Congress.
01:13 - 15.913 You just said.
01:13 - 17.226 Yeah, right. So my.
01:13 - 19.561 My argument follows from
01:13 - 20.179 the cases that the
01:13 - 20.996 court has interpreted
01:13 - 22.281 29 on one specifically
01:13 - 23.766 RBF, where in that case
01:13 - 24.591 there was a reason why they
01:13 - 25.501 could not meet the elements
01:13 - 27.603 and therefore a cause was found.
01:13 - 28.735 All right, this is what
01:13 - 30.139 makes our job interesting.
01:13 - 31.186 We don't always agree,
01:13 - 32.641 and we will figure this out.
01:13 - 33.675 Thank you.
01:13 - 35.546 Let's hear from your
01:13 - 37.346 opposing counsel.
01:13 - 40.783 Morning, Chief Justice.
01:13 - 41.750 Good morning, Your Honor.
01:13 - 42.251 May, please.
01:13 - 43.615 The Court Attorney Alexis
01:13 - 44.522 Swope, on behalf
01:13 - 45.554 of the appellate
01:13 - 47.778 mother of the minor child, Emil,
01:13 - 49.992 who has legal counsel present,
01:13 - 51.366 Kelly McNeely, should the
01:13 - 53.262 court have any questions for her
01:13 - 55.136 or should she feel like
01:13 - 56.665 I've missed anything
01:13 - 58.317 so my obviously, my
01:13 - 00.869 client requested this court
01:14 - 02.402 affirm the Superior Court
01:14 - 04.039 decision and send this matter
01:14 - 05.659 back to the trial court for
01:14 - 07.242 a factual determination.
01:14 - 08.972 And obviously that's
01:14 - 10.813 what 2901 intended.
01:14 - 13.649 2903 The spousal exception
01:14 - 15.654 was an exception
01:14 - 16.952 across the board.
01:14 - 17.833 2901 gives
01:14 - 19.988 deference to the court
01:14 - 20.861 to determine whether
01:14 - 22.024 or not it's appropriate.
01:14 - 24.497 The fear of opening
01:14 - 25.394 the floodgates
01:14 - 26.871 of third party, third
01:14 - 28.230 parties, coaches,
01:14 - 30.494 friends, stepping
01:14 - 31.834 in to adopt a child
01:14 - 32.948 and push out a
01:14 - 34.236 biological parent.
01:14 - 37.473 That's for the court to decide.
01:14 - 38.574 The trial court
01:14 - 39.172 and if it's an
01:14 - 40.142 abuse of discretion,
01:14 - 41.640 it's coming back up this way
01:14 - 43.378 for you to make that decision.
01:14 - 44.346 Counsel, did.
01:14 - 45.964 Did did your client
01:14 - 47.950 argue cause as to why
01:14 - 50.571 they should be excused
01:14 - 52.554 from the spousal requirement?
01:14 - 54.338 No. And the record reflects
01:14 - 55.991 we did not even address that.
01:14 - 56.999 As it was. Is there
01:14 - 58.193 a waiver issue here?
01:14 - 59.169 What's up? Is there
01:14 - 00.429 a waiver issue at all?
01:15 - 01.830 No. Okay.
01:15 - 02.798 So so, you know,
01:15 - 05.179 so you want to go back to show
01:15 - 07.903 cause and reason why your client
01:15 - 09.643 can't meet the marriage
01:15 - 11.406 requirement is right.
01:15 - 12.574 What?
01:15 - 13.775 I don't know what that is.
01:15 - 15.310 Honestly, I'm going to admit
01:15 - 16.516 I think we have a
01:15 - 18.247 reason why she cannot.
01:15 - 20.090 Our interpretation is at
01:15 - 21.550 that time, she could not.
01:15 - 23.433 If we're talking about
01:15 - 24.520 gamesmanship, I think
01:15 - 26.522 forcing mother
01:15 - 27.925 to be married to
01:15 - 30.325 overcome this requirement
01:15 - 31.151 when there's the
01:15 - 32.127 ability for the court
01:15 - 33.695 to make that determination
01:15 - 34.988 based upon the facts of
01:15 - 36.532 evidence is gamesmanship.
01:15 - 39.189 So I'm I don't want to
01:15 - 40.736 telegraph which camp
01:15 - 43.074 I'm in in terms of terms
01:15 - 45.240 of where things are.
01:15 - 46.798 But it seems to me
01:15 - 49.077 that rightly or wrongly,
01:15 - 50.591 whether I agree with it or not,
01:15 - 52.080 the General Assembly has put
01:15 - 54.287 a fairly strong indication
01:15 - 56.518 in the statute that they
01:15 - 58.022 that they want the
01:15 - 00.422 adoption to be to a spouse.
01:16 - 04.359 And I guess my concern
01:16 - 05.188 and I have a great
01:16 - 05.994 deal of respect
01:16 - 06.830 for justice Dockerty
01:16 - 07.563 and his passion
01:16 - 08.494 on this issue and his
01:16 - 10.032 experience here on these things.
01:16 - 11.708 But I'm a statutory
01:16 - 12.935 construction nerd.
01:16 - 15.571 And and I guess my concern is
01:16 - 17.344 if the for cause provision can
01:16 - 19.141 be interpreted in such a way
01:16 - 22.544 as to basically not be tethered
01:16 - 24.544 to the General Assembly's
01:16 - 26.648 policy, but B, you know,
01:16 - 28.459 may be linked to
01:16 - 29.885 how how terrible
01:16 - 30.652 the father was,
01:16 - 31.421 who's whose rights
01:16 - 32.387 are being terminated
01:16 - 33.003 or the mothers whose
01:16 - 33.956 rights are being terminated.
01:16 - 34.623 It could be either.
01:16 - 36.892 And these sort of
01:16 - 38.556 general reasons why
01:16 - 40.596 you have a bad parent
01:16 - 42.630 or a good non-marital
01:16 - 43.865 relationship.
01:16 - 45.768 The General Assembly
01:16 - 46.868 could have said that.
01:16 - 48.126 And and if we open
01:16 - 49.972 up the door there aren't
01:16 - 51.675 we basically allow in the for
01:16 - 53.342 cause exception to swallow
01:16 - 55.398 the General Assembly's
01:16 - 56.979 very expressed desire
01:16 - 59.655 that this only occur in
01:16 - 02.217 a in a marital adoption.
01:17 - 03.819 I don't think so.
01:17 - 07.004 29 oh 2903 The spousal
01:17 - 10.359 exception was enacted
01:17 - 12.260 prior to 2901 which
01:17 - 14.396 provides for the exceptions.
01:17 - 16.120 And if you look at some
01:17 - 17.566 of the arguments in RDF,
01:17 - 19.602 the concurring
01:17 - 21.136 opinion in Amar, do
01:17 - 24.188 you see where they indicate
01:17 - 25.607 that the best permanency
01:17 - 27.110 and stability for a child
01:17 - 28.577 is an intact marriage?
01:17 - 30.318 Because a marriage
01:17 - 31.413 is much harder
01:17 - 33.815 to sever than a cohabitation?
01:17 - 35.083 But I disagree.
01:17 - 35.984 It's not.
01:17 - 37.219 Father argues
01:17 - 38.555 that this permanency
01:17 - 40.522 for this child only so long
01:17 - 42.099 as the relationship of
01:17 - 43.458 mother and boyfriend.
01:17 - 45.163 See my but see I think that's
01:17 - 46.628 an excellent argument because.
01:17 - 47.195 I think.
01:17 - 48.617 I think that's an
01:17 - 49.531 excellent argument
01:17 - 50.687 because I think that's what
01:17 - 51.867 the chief was indicating.
01:17 - 53.002 And and I'm not going to sit
01:17 - 54.202 here and disagree with you,
01:17 - 54.603 but I could
01:17 - 55.685 probably walk out on the
01:17 - 56.389 street and find
01:17 - 57.339 15 people that do.
01:17 - 59.991 And that's why we elect a
01:18 - 02.644 General Assembly to establish
01:18 - 04.905 a statewide policy
01:18 - 07.382 on that type of subject,
01:18 - 10.018 not one that, you know,
01:18 - 12.362 fits a particular judge,
01:18 - 14.056 a particular court.
01:18 - 16.213 And that's where I can
01:18 - 17.659 agree with you 100%.
01:18 - 20.450 I'm I'm struck with
01:18 - 22.564 if I change this,
01:18 - 24.526 if we say that for cause
01:18 - 26.101 can be any reason
01:18 - 29.504 that that
01:18 - 30.469 this relationship
01:18 - 31.573 is better for the
01:18 - 35.453 than it then that just swallows
01:18 - 36.878 the marriage requirement.
01:18 - 38.680 That's my problem.
01:18 - 39.501 I'm not sure you can
01:18 - 40.282 help me get over it.
01:18 - 41.155 I don't think. I
01:18 - 42.217 can either. Okay.
01:18 - 43.485 The council,
01:18 - 44.902 you know, we we are
01:18 - 47.222 critical of the of the statute.
01:18 - 48.247 And I think you hear
01:18 - 49.658 from members of the court
01:18 - 50.892 that we'd like
01:18 - 52.015 to see the legislature
01:18 - 53.729 revisit this, but they haven't.
01:18 - 56.185 But we also have to
01:18 - 57.933 acknowledge that they
01:18 - 00.309 considered the public
01:19 - 02.104 policy and concluded that
01:19 - 05.211 there was a benefit to having a
01:19 - 07.976 married person, a spouse adopt.
01:19 - 10.074 And you talked about the
01:19 - 12.080 permanency, your temporary
01:19 - 14.037 nature of marriage as
01:19 - 16.318 versus some companionship.
01:19 - 18.909 But in this case,
01:19 - 21.256 if the mother's
01:19 - 24.559 longtime partner paramour
01:19 - 26.172 is permitted to adopt
01:19 - 27.963 and that relationship
01:19 - 30.932 falls apart at some point
01:19 - 31.700 and, mother,
01:19 - 33.440 who is the biological mother
01:19 - 34.341 of this child,
01:19 - 35.704 decides to remarry.
01:19 - 38.061 Then where is that
01:19 - 40.075 spouse in the mix?
01:19 - 42.070 That spouse could adopt
01:19 - 44.613 the child because her prior
01:19 - 47.101 boyfriend gained the adoption
01:19 - 49.317 authority over the child.
01:19 - 51.143 It gets complicated so you
01:19 - 52.426 have to understand
01:19 - 53.722 the legislature,
01:19 - 54.799 while we may not
01:19 - 55.991 agree with the statute,
01:19 - 57.993 we think it could be updated.
01:19 - 59.566 They weren't without
01:19 - 01.163 concern and logic,
01:20 - 02.510 but they weren't
01:20 - 04.900 disregarding public policy
01:20 - 06.103 when they came up
01:20 - 07.402 with this statute council.
01:20 - 10.305 From what I have heard. Oh.
01:20 - 10.960 I thought that was a
01:20 - 11.673 comment. I'm sorry.
01:20 - 14.209 I agree. There was concern.
01:20 - 15.860 And I just want to
01:20 - 17.813 point out, the 2903
01:20 - 20.286 for the spousal exception
01:20 - 22.484 was enacted in 1981.
01:20 - 25.987 I'm not I was born after 1981.
01:20 - 28.623 Don't rub that.
01:20 - 30.865 And the exception
01:20 - 33.161 clause was put in in 1982.
01:20 - 34.366 So we're not
01:20 - 36.198 asking for a blanket.
01:20 - 37.416 Every long term committed
01:20 - 39.100 partner should be able to adopt.
01:20 - 40.569 Case by case,
01:20 - 42.205 these parties mother and
01:20 - 44.072 proposed adoptive father.
01:20 - 45.578 They have another
01:20 - 46.708 child together.
01:20 - 48.174 He has a child outside of this
01:20 - 49.811 relationship, just as she does.
01:20 - 51.375 But we're hoping to put
01:20 - 52.747 that child back in this one.
01:20 - 54.482 So to your question,
01:20 - 55.701 if this relationship
01:20 - 57.252 ends, mother remarries,
01:20 - 58.214 where does that
01:20 - 59.654 step parent fall in?
01:21 - 01.045 Same place any other
01:21 - 02.123 step parent falls in
01:21 - 04.087 because the child has a father
01:21 - 05.493 now with whom she shares
01:21 - 06.695 a sibling.
01:21 - 08.236 It's any other marriage
01:21 - 10.098 or relationship that ends.
01:21 - 11.351 COUNSEL You think they
01:21 - 12.767 should be remanded, I take it?
01:21 - 13.435 I do.
01:21 - 13.802 Okay.
01:21 - 15.099 But, you know, and
01:21 - 16.638 with all deference,
01:21 - 17.289 I don't know if
01:21 - 18.273 you tried this case,
01:21 - 19.370 what the strategy was,
01:21 - 20.642 but as you pointed out,
01:21 - 22.110 the statutes that we're
01:21 - 23.573 talking about have been
01:21 - 25.380 in play for like 40 years.
01:21 - 27.015 Everybody knew
01:21 - 28.850 that there
01:21 - 30.379 was an issue, had to
01:21 - 32.087 I mean, not married,
01:21 - 33.888 knew what the statute
01:21 - 35.390 said, knew there was a four
01:21 - 36.391 year requirement.
01:21 - 38.057 And yet no one stepped
01:21 - 40.128 up to the plate to, like,
01:21 - 41.148 make the record to say, we
01:21 - 42.430 just don't want to get married
01:21 - 45.700 or we can't.
01:21 - 47.335 Although I have a feeling based
01:21 - 48.009 upon what you're
01:21 - 49.137 saying, it's the former.
01:21 - 49.757 We just don't
01:21 - 50.839 want to get married.
01:21 - 52.212 So what are we doing
01:21 - 53.608 by remanding this?
01:21 - 54.576 I you know,
01:21 - 56.449 if the court actually is of
01:21 - 58.346 the view and I don't know
01:21 - 59.770 if that's the case, that, you
01:21 - 01.416 know, the fact of the matter is
01:22 - 03.835 you can't overcome
01:22 - 05.887 the spousal exception.
01:22 - 08.556 Should we just decide that
01:22 - 10.592 you're your clients
01:22 - 11.757 are in a perfect
01:22 - 13.461 position to fix this?
01:22 - 15.864 They can get married.
01:22 - 17.751 Or we can follow,
01:22 - 20.302 as I was going to say,
01:22 - 22.847 General Assembly intentionally
01:22 - 24.639 write absurd statutes.
01:22 - 25.801 But the reality is they're
01:22 - 26.942 second parent adoption.
01:22 - 29.008 So if we followed the
01:22 - 30.145 General Assembly,
01:22 - 31.022 what the required
01:22 - 32.447 gamesmanship would be for
01:22 - 33.448 mother to have her own
01:22 - 34.883 her own
01:22 - 35.727 parental rights
01:22 - 37.052 terminated so she and
01:22 - 40.003 living a boyfriend can
01:22 - 41.723 file second parent adoption
01:22 - 42.946 and then they could
01:22 - 44.292 be granted adoptions.
01:22 - 46.061 Correct.
01:22 - 47.914 And so the reality is, which
01:22 - 49.564 game do you want to play
01:22 - 51.399 with the General Assembly?
01:22 - 52.817 Do we want to have mother
01:22 - 54.602 terminate her parental rights
01:22 - 56.869 so that she and boyfriend
01:22 - 58.974 can be the legal parents
01:22 - 00.713 which is allowed by
01:23 - 02.644 the General Assembly?
01:23 - 05.880 Or do we find for courts shown
01:23 - 08.238 based upon the same
01:23 - 10.385 facts but a different statute?
01:23 - 12.667 And again, I have to differ
01:23 - 14.422 with my my colleagues.
01:23 - 16.420 There's nowhere in 2901
01:23 - 18.360 that says other that says
01:23 - 19.404 anything about meeting
01:23 - 20.328 the requirements.
01:23 - 22.430 You read the statute in toto.
01:23 - 23.565 It says if all the other legal
01:23 - 24.532 elements have been met,
01:23 - 26.568 but for the termination.
01:23 - 27.602 So Mother chooses
01:23 - 28.632 not to terminate her
01:23 - 29.738 own parental rights
01:23 - 31.589 because she has 2901 there
01:23 - 33.608 as opposed to another statute.
01:23 - 35.486 But that again, it's a policy
01:23 - 37.345 issue that the General Assembly
01:23 - 38.967 has given various
01:23 - 41.449 avenues for you or mothers
01:23 - 44.819 counsel to choose.
01:23 - 46.639 It's up for this court to
01:23 - 48.556 direct with path is best
01:23 - 50.433 because either side with
01:23 - 52.260 either argument is absurd.
01:23 - 54.396 Yes, I agree.
01:23 - 55.710 Well, your if can I follow
01:23 - 57.098 up on that on that point.
01:23 - 00.535 Counsel your your your position.
01:24 - 03.905 I take it would be that
01:24 - 04.979 that you're doing
01:24 - 06.141 it the right way
01:24 - 07.637 you're seeking to
01:24 - 10.045 establish for cause shown
01:24 - 13.348 under 29 or one
01:24 - 15.884 by invoking that
01:24 - 17.069 exception rather
01:24 - 18.653 than playing a game
01:24 - 20.460 rather than doing
01:24 - 21.890 the grandparent
01:24 - 24.141 rigmarole or probably now
01:24 - 26.227 terminating your own rights.
01:24 - 27.291 And that brought my
01:24 - 28.663 dissent in seem worse.
01:24 - 29.230 Right?
01:24 - 30.768 I said that you were
01:24 - 32.200 bringing head on to us
01:24 - 33.277 the question of
01:24 - 34.669 for causation and
01:24 - 39.207 and perhaps
01:24 - 40.925 perhaps one might
01:24 - 43.578 say, if on on this record
01:24 - 45.520 you can't establish clear
01:24 - 47.148 and convincing evidence,
01:24 - 48.868 then the for cause shown
01:24 - 50.251 doesn't mean a thing.
01:24 - 51.426 Correct, except
01:24 - 52.787 for the Utah bigamy,
01:24 - 54.387 you know, scenario, which
01:24 - 56.191 is, you know, kind of absurd.
01:24 - 56.691 Right.
01:24 - 59.761 I mean, isn't your point that
01:25 - 02.530 if for causation means anything
01:25 - 03.612 and we don't think the
01:25 - 04.966 legislature means nothing
01:25 - 05.621 when it puts
01:25 - 07.135 something in the statute,
01:25 - 07.986 that this is a case
01:25 - 08.770 where you ought
01:25 - 10.394 to have the opportunity
01:25 - 12.540 to to to meet that high bar.
01:25 - 14.542 Isn't that the argument?
01:25 - 15.390 It is. And thank you
01:25 - 16.478 for making that for me.
01:25 - 19.147 Because because you.
01:25 - 21.916 You had the opportunity.
01:25 - 24.319 You just decided not to do it.
01:25 - 25.616 Specifically address
01:25 - 26.688 the question. Yeah.
01:25 - 28.593 I mean, I let's be honest
01:25 - 30.391 about what we have here.
01:25 - 31.973 I mean, this is a guest
01:25 - 33.995 get a remand on this period
01:25 - 35.530 and I'm not sure which choice.
01:25 - 37.165 We have, to be honest with you.
01:25 - 38.262 I mean, because
01:25 - 39.901 don't have a record,
01:25 - 41.439 you know, we we I can
01:25 - 43.371 assume that your clients
01:25 - 44.606 just don't want to get married,
01:25 - 45.288 but I don't know
01:25 - 46.341 that from this record.
01:25 - 47.625 So in order to to
01:25 - 49.544 why I decide this issue
01:25 - 50.602 at some point in time, we
01:25 - 51.813 new record which we don't.
01:25 - 52.925 That's correct and
01:25 - 54.249 that's the question
01:25 - 55.496 I think just describes it
01:25 - 57.018 raised the question is there
01:25 - 58.119 is there a waiver in
01:25 - 58.814 is that fair in
01:25 - 59.721 this circumstance
01:25 - 01.229 when the child's rights
01:26 - 03.224 are at stake to find waiver?
01:26 - 04.397 Because counsel decided
01:26 - 05.593 and the court decided
01:26 - 06.592 just to ignore the
01:26 - 07.896 elephant in the room.
01:26 - 09.797 I don't think there is waiver
01:26 - 10.641 that wasn't
01:26 - 12.600 specifically addressed.
01:26 - 13.588 It needs to go back
01:26 - 14.969 to establish the record.
01:26 - 17.146 To give you the opportunity
01:26 - 19.107 to show cause whether or not
01:26 - 20.675 you can. Correct.
01:26 - 22.544 Okay. Any other questions?
01:26 - 25.046 Thank you both.
01:26 - 27.056 The next case today is
01:26 - 28.683 Hangi versus Husqvarna.
01:26 - 30.223 This case deals with
01:26 - 31.252 the issue of venue
01:26 - 33.382 that is in which county
01:26 - 35.323 a lawsuit may be filed,
01:26 - 36.524 a corporation
01:26 - 37.187 and whether a
01:26 - 38.393 defendant corporation
01:26 - 39.705 has sufficient contacts
01:26 - 41.329 with the county to justify
01:26 - 43.164 bringing suit there.
01:26 - 44.499 In this case, Mr.
01:26 - 45.576 Hangi was severely
01:26 - 47.101 and permanently injured
01:26 - 48.897 while using a lawn mower
01:26 - 50.772 at his home in Wayne County
01:26 - 52.312 but filed suit in
01:26 - 53.641 Philadelphia County.
01:26 - 55.443 The defendant company
01:26 - 57.122 was in the business of selling
01:26 - 58.713 lawn and garden equipment.
01:26 - 00.355 Mr. Hangi claims
01:27 - 01.749 that each defendant
01:27 - 03.226 he sued regularly conducts
01:27 - 05.186 business in Philadelphia County.
01:27 - 06.957 The company does not
01:27 - 08.623 advertise in Philadelphia,
01:27 - 10.137 did not own property or
01:27 - 12.060 have facilities in Philadelphia,
01:27 - 13.583 and was not registered to
01:27 - 15.196 do business in Philadelphia.
01:27 - 16.836 The trial court
01:27 - 18.266 sustained the company's
01:27 - 19.785 preliminary objections
01:27 - 21.536 based on improper venue
01:27 - 22.858 and concluded that
01:27 - 24.339 none of the defendants
01:27 - 26.467 regularly conducted business
01:27 - 28.142 in Philadelphia County
01:27 - 29.243 so as to render
01:27 - 30.812 venue proper there.
01:27 - 32.748 The Superior Court
01:27 - 34.148 reversed finding.
01:27 - 35.507 The trial court erred
01:27 - 37.151 in focusing exclusively
01:27 - 38.019 on the percentage
01:27 - 39.159 of the defendants business
01:27 - 40.588 that occurred in Philadelphia.
01:27 - 42.380 The defendants contacts,
01:27 - 44.092 according to the superior Court
01:27 - 45.226 with Philadelphia,
01:27 - 46.962 were sufficiently continuous
01:27 - 49.097 so as to be considered habitual.
01:27 - 51.399 According to the Superior Court,
01:27 - 52.745 the percentage of sales
01:27 - 54.469 of a corporation in a venue
01:27 - 56.234 is but one factor to
01:27 - 58.239 consider when determining
01:27 - 59.978 whether the quantity prong of
01:27 - 02.043 the venue analysis is satisfied,
01:28 - 04.045 and such evidence must viewed
01:28 - 05.080 within the context
01:28 - 06.080 of the business
01:28 - 08.583 at issue in each case.
01:28 - 10.340 Pennsylvania courts apply
01:28 - 12.120 the two pronged quality
01:28 - 13.783 quantity test to determine
01:28 - 15.857 whether a defendant's business
01:28 - 17.446 activities in the county
01:28 - 19.260 are of sufficient quality
01:28 - 20.956 and quantity to
01:28 - 23.131 render venue proper.
01:28 - 25.296 In this appeal, the corporation
01:28 - 27.001 argued that the trial court
01:28 - 28.412 correctly concluded
01:28 - 30.371 that venue was improper.
01:28 - 31.785 In Philadelphia County,
01:28 - 33.408 the company's de minimus
01:28 - 35.385 amount of business
01:28 - 38.713 0.005% of its annual revenue
01:28 - 40.762 was insufficient to lay
01:28 - 42.750 venue in Philadelphia.
01:28 - 44.919 In response, the hangings argue
01:28 - 46.428 that the Superior Court
01:28 - 48.189 was correct in its analysis
01:28 - 49.745 and consideration of
01:28 - 51.292 all relevant evidence
01:28 - 52.260 to determine
01:28 - 54.028 that the company was regularly
01:28 - 54.916 conducting business
01:28 - 56.064 in Philadelphia County
01:28 - 57.799 at the time in question.
01:28 - 59.257 The trial court should not
01:28 - 01.135 have elevated the importance of
01:29 - 02.671 or given dispositive
01:29 - 04.605 weight to one consideration,
01:29 - 06.309 which was the percentage of
01:29 - 08.042 sales in Philadelphia County
01:29 - 09.250 as compared with the
01:29 - 10.511 entire United States.
01:29 - 12.357 Let's head into the courtroom
01:29 - 13.548 and hear the arguments
01:29 - 14.553 that sued the
01:29 - 15.950 corporate distributors
01:29 - 17.518 of a lawnmower for injuries
01:29 - 18.686 he sustained in a
01:29 - 20.009 lawnmower accident that
01:29 - 21.589 occurred in Bucks County.
01:29 - 23.854 The question for this court is
01:29 - 25.893 whether, under our venue rules,
01:29 - 27.762 the Defendant Corporation
01:29 - 30.031 regularly conducted business
01:29 - 31.884 in Philadelphia County such
01:29 - 33.968 that venue was proper there.
01:29 - 35.603 Specifically, we are asked
01:29 - 37.705 whether the corporate defendant
01:29 - 39.006 can be considered
01:29 - 40.914 to have regularly conducted
01:29 - 43.344 business in Philadelphia County,
01:29 - 44.859 where its total
01:29 - 46.381 annual percentage
01:29 - 48.141 of national sales of lawn
01:29 - 50.351 equipment within Philadelphia
01:29 - 54.822 County amounts to 0.005%.
01:29 - 57.558 Yes, Your Honor.
01:29 - 59.460 5000 of 1%.
01:29 - 01.129 5,000th of 1%.
01:30 - 03.831 Brick 34 Husqvarna and Trump.
01:30 - 04.914 Bauer and my
01:30 - 06.934 co-counsel, Mike Mu,
01:30 - 09.530 who wrote a lot of the briefs
01:30 - 12.206 and has been me on all of this.
01:30 - 15.309 So, first of all,
01:30 - 17.199 in Pennsylvania, as Your Honor,
01:30 - 19.113 to know, in a product's case,
01:30 - 20.727 there are only a few places
01:30 - 21.916 where you can be sued.
01:30 - 22.870 You can be sued where
01:30 - 23.985 the accident happened.
01:30 - 25.809 You can be sued where
01:30 - 27.321 the product was sold.
01:30 - 28.756 You can be sued
01:30 - 30.365 where the company has
01:30 - 32.693 principal place of business,
01:30 - 34.903 or you can be sued where
01:30 - 37.098 you regularly conduct business.
01:30 - 39.549 Now, Trump Tower has its
01:30 - 41.569 principal place of business
01:30 - 43.269 in Bucks County, and the
01:30 - 44.237 product was sold
01:30 - 45.339 in Bucks County.
01:30 - 48.094 The accident happened 130
01:30 - 49.391 miles, 12 miles
01:30 - 51.045 from the New York
01:30 - 52.406 border up in Wayne
01:30 - 54.782 County at a property that Mr.
01:30 - 56.560 Hankey owned where he was
01:30 - 58.719 mowing near a retention pond
01:30 - 01.823 and drove into a 15 foot ditch.
01:31 - 05.493 And of course, they filed Mr.
01:31 - 06.360 Mongol to see him.
01:31 - 08.034 Mr. American filed their
01:31 - 10.364 lawsuit in Philadelphia County,
01:31 - 14.435 alleging that Husqvarna
01:31 - 16.292 regularly conducted business
01:31 - 17.972 in Philadelphia County.
01:31 - 21.209 And judge New as Your Honor.
01:31 - 24.585 No followed the procedure
01:31 - 27.415 to a tee he set up.
01:31 - 29.050 We filed preliminary objections
01:31 - 30.256 and he immediately set
01:31 - 31.652 up a discovery schedule
01:31 - 33.676 with interrogatories, with
01:31 - 35.756 depositions, with affidavits.
01:31 - 38.423 And then we had a hearing
01:31 - 39.694 in front of Judge New.
01:31 - 40.995 And Judge
01:31 - 42.682 knew very carefully, went
01:31 - 44.732 through all of the evidence.
01:31 - 45.967 And the evidence
01:31 - 47.828 was overwhelming in favor
01:31 - 49.937 of the fact that Husqvarna
01:31 - 52.214 did not regularly conduct
01:31 - 54.976 business in Philadelphia County.
01:31 - 57.289 They have no employees
01:31 - 59.413 in Philadelphia County,
01:31 - 00.696 they have no executives
01:32 - 02.116 in Philadelphia County.
01:32 - 03.252 They don't have a
01:32 - 04.819 principal place of business.
01:32 - 05.353 So a small
01:32 - 06.466 percentage of business
01:32 - 07.655 they conducted there.
01:32 - 08.623 Correct.
01:32 - 12.393 And applying the law as Judge
01:32 - 14.962 New did Madam Chief Justice.
01:32 - 17.302 He looked at the Kantor
01:32 - 19.467 case and Purcell and Monaco.
01:32 - 21.767 And he said all of those
01:32 - 24.238 cases looked at the proportion
01:32 - 27.210 of business that a company
01:32 - 29.977 does in in the county.
01:32 - 31.245 And here,
01:32 - 34.215 as far as proportion,
01:32 - 37.618 business is 5000 of 1%.
01:32 - 40.588 Query on that number.
01:32 - 43.090 Why? Just maybe there's
01:32 - 44.713 an obvious reason,
01:32 - 45.927 and I'm unaware of it.
01:32 - 47.917 Why is the calculation based
01:32 - 49.931 on national sales business
01:32 - 51.472 rather than Pennsylvania,
01:32 - 53.534 since we're talking about venue
01:32 - 54.740 in a particular county
01:32 - 55.970 within Pennsylvania?
01:32 - 57.438 Sure.
01:32 - 59.617 Where you look at it, each
01:32 - 02.410 case under the law under Cantor
01:33 - 04.168 and Purcell is reviewed
01:33 - 06.180 on a case by case basis,
01:33 - 08.149 and in this case has four.
01:33 - 09.630 And it happens to be a
01:33 - 11.165 national international
01:33 - 12.153 corporation.
01:33 - 13.928 So you're going to look at
01:33 - 15.656 house fairness, total sales,
01:33 - 17.792 not just in the Commonwealth
01:33 - 19.083 of Pennsylvania, but
01:33 - 20.528 in the other States.
01:33 - 22.457 And the person who knew
01:33 - 24.832 that was Judge New because
01:33 - 27.057 in his opinion, in a footnote,
01:33 - 29.604 you will find that he says there
01:33 - 31.964 3141 counties in
01:33 - 34.775 the United States.
01:33 - 35.943 I didn't know that.
01:33 - 37.836 And then he divided house
01:33 - 39.981 for his business and said,
01:33 - 41.641 if you look at how much
01:33 - 44.051 proportional business Husqvarna
01:33 - 46.569 should do, on average,
01:33 - 49.457 it's about 300th of 1%.
01:33 - 50.434 And then he said, look,
01:33 - 51.692 if you look at what they do
01:33 - 52.631 in Bucks County,
01:33 - 54.128 where Trump is located,
01:33 - 57.331 it's 2/10 of 1%.
01:33 - 58.745 But if you look at
01:33 - 59.834 Philadelphia you're county
01:33 - 00.708 where there are
01:34 - 01.902 not a lot of lawns
01:34 - 03.875 and not a lot of outdoor
01:34 - 06.007 power equipment sold, it's
01:34 - 07.842 five thousands of
01:34 - 10.244 1% or 40 times less.
01:34 - 11.779 And it
01:34 - 15.721 I'm born and raised
01:34 - 17.018 in South Philadelphia.
01:34 - 18.419 It's all cement.
01:34 - 21.522 I grew up with no grass.
01:34 - 23.624 I'm not surprised.
01:34 - 26.360 At my Home Depot or Lowe's.
01:34 - 28.562 We may have one
01:34 - 30.965 lawn mower, no lawn tractors.
01:34 - 33.673 However, Home
01:34 - 36.137 Depot sells tractors.
01:34 - 37.772 It's not Husqvarna.
01:34 - 38.522 I'm sorry for
01:34 - 39.940 interrupting, but not.
01:34 - 41.275 It's hypothetical.
01:34 - 42.017 Yeah. So the
01:34 - 43.411 question becomes if,
01:34 - 45.875 despite the fact
01:34 - 47.648 that they regularly
01:34 - 49.569 do business in
01:34 - 51.152 load in our Lowe's
01:34 - 52.892 with their equipment,
01:34 - 54.288 but we don't purchase it
01:34 - 56.312 because our our geographical
01:34 - 58.359 layout doesn't require it.
01:34 - 00.233 How does that equate
01:35 - 02.029 to the percentage like
01:35 - 04.224 why should I apply a percentage
01:35 - 06.300 quantity quality rationale,
01:35 - 07.944 which is to additionally
01:35 - 08.938 create, create
01:35 - 10.371 it to a definition
01:35 - 11.995 of regularly conducting
01:35 - 13.163 business because
01:35 - 14.709 as far as I see it,
01:35 - 16.867 those who are
01:35 - 18.713 producing lawn mowers
01:35 - 20.376 or lawn tractors are
01:35 - 22.650 regularly doing business.
01:35 - 24.470 But the percentage of sales
01:35 - 26.053 is extremely low because
01:35 - 28.622 you can't mow cement.
01:35 - 31.203 So let me see if I
01:35 - 33.194 can break that all out.
01:35 - 35.693 Justice Storti First
01:35 - 37.465 of all, the test is
01:35 - 39.199 for whether or not you're
01:35 - 40.935 regularly conducting business.
01:35 - 42.724 And of course, that
01:35 - 45.106 way back to the general
01:35 - 46.939 jurisdiction analysis
01:35 - 48.709 and all of that is
01:35 - 50.825 should Husqvarna be
01:35 - 52.947 regularly conducting business
01:35 - 54.571 in every all 67
01:35 - 57.418 counties in Pennsylvania
01:35 - 59.577 the way the law has looked
01:35 - 01.422 at it under let's take singly
01:36 - 02.581 versus flier the
01:36 - 04.158 Villanova law school
01:36 - 05.868 where Villanova had three
01:36 - 07.995 graduate level courses down here
01:36 - 09.897 at the Philadelphia Naval Yard.
01:36 - 10.677 And when they
01:36 - 12.333 looked at that they said,
01:36 - 13.653 yeah, they're
01:36 - 14.769 holding classes there.
01:36 - 16.507 But that's not the majority
01:36 - 18.139 of one of its business.
01:36 - 19.071 The majority of
01:36 - 20.908 Villanova's business occurs
01:36 - 21.822 out of Montgomery
01:36 - 22.977 in Delaware County,
01:36 - 24.253 where the fall down actually
01:36 - 25.646 occurred in Delaware County.
01:36 - 27.186 And they said
01:36 - 29.750 Villanova is not regularly
01:36 - 31.193 conducting business
01:36 - 33.120 in Philadelphia County.
01:36 - 35.072 Now, you brought up
01:36 - 37.858 another point that's important,
01:36 - 40.633 and that point is,
01:36 - 42.730 should Husqvarna
01:36 - 45.222 be responsible for the
01:36 - 47.868 sales in this case of Lowe's,
01:36 - 49.441 which my esteemed colleague
01:36 - 51.272 has suggested, but they never
01:36 - 52.740 a record under it.
01:36 - 54.382 And our position is
01:36 - 56.310 under under our rule
01:36 - 57.678 of appellate procedure.
01:36 - 00.247 305i think they've waited.
01:37 - 01.346 Counsel Can I
01:37 - 02.616 follow up on Justice
01:37 - 03.698 Daugherty's question
01:37 - 05.352 a little bit different line.
01:37 - 08.589 Your client has an
01:37 - 09.847 authorized dealership
01:37 - 11.492 in Philadelphia, correct?
01:37 - 13.580 It's an independent
01:37 - 15.296 dealer dealer electronics
01:37 - 16.971 who sells some of
01:37 - 19.066 Husqvarna products.
01:37 - 19.994 And authorized.
01:37 - 21.635 Dealers. It is. Correct.
01:37 - 22.770 And, you know,
01:37 - 24.628 I understand the long history
01:37 - 26.574 of looking at percentages of
01:37 - 27.875 sales and things like that.
01:37 - 29.343 But I mean,
01:37 - 31.071 the purpose of that test is
01:37 - 33.080 to determine whether the acts
01:37 - 35.020 are so continuous and sufficient
01:37 - 36.984 to become general or habitual.
01:37 - 38.977 And to me, the
01:37 - 41.188 fact that your client
01:37 - 43.438 has an authorized dealership
01:37 - 45.793 in Philadelphia establishes
01:37 - 48.335 general or habitual
01:37 - 50.764 acts in, the venue.
01:37 - 53.113 I don't I'm just
01:37 - 55.636 loathe to the notion
01:37 - 57.394 that you have to fall back
01:37 - 59.039 on percentage of sales
01:37 - 00.840 when you have other
01:38 - 03.210 evidence that would establish
01:38 - 04.823 the continuous and habitual
01:38 - 06.580 or the general and habitual
01:38 - 11.118 habitual acts within the venue.
01:38 - 12.392 So why? Why is
01:38 - 13.621 that. Wrong? Sure.
01:38 - 15.810 So it's wrong because of the
01:38 - 18.259 two words that you mentioned.
01:38 - 21.862 It is continuous, which means
01:38 - 24.632 regular and sufficient.
01:38 - 26.628 And the reason sufficient is
01:38 - 28.535 important is because that's how
01:38 - 30.104 Cantor Purcell or
01:38 - 32.373 Sam Penn or Barry
01:38 - 34.066 Monaco, they all looked at
01:38 - 36.110 whether or not it was enough.
01:38 - 37.077 The all.
01:38 - 37.711 Those cases.
01:38 - 38.480 Counsel If I can
01:38 - 39.713 jump in all those cases
01:38 - 41.637 involved, a defendant that did
01:38 - 43.584 not have a physical presence
01:38 - 46.420 in, in in Philadelphia.
01:38 - 50.424 So they're not exactly on point.
01:38 - 52.700 So but there are cases
01:38 - 55.796 where, for instance, the Pico
01:38 - 57.084 case, Pico versus
01:38 - 59.466 Philadelphia, suburban water,
01:38 - 01.135 Philadelphia Suburban
01:39 - 03.370 Water actually has a water line
01:39 - 04.860 that runs in the
01:39 - 06.674 county of Philadelphia
01:39 - 07.763 every day of the
01:39 - 08.943 week, all the time
01:39 - 12.012 and there are other cases.
01:39 - 14.181 SCHULTZ Versus am I
01:39 - 16.231 where they found quality and
01:39 - 18.218 they didn't find the quantity.
01:39 - 20.221 And so there are plenty
01:39 - 22.423 of cases where you look
01:39 - 25.076 and you say, is the defendant
01:39 - 27.661 doing business here regularly?
01:39 - 28.929 And the Villanova case,
01:39 - 30.275 the reason I brought that
01:39 - 31.699 up, Justice Roberson, is
01:39 - 33.676 Villanova is in the
01:39 - 35.669 business of holding classes.
01:39 - 38.339 I think to go to other cases.
01:39 - 39.228 I think the Villanova
01:39 - 40.441 case is your best example,
01:39 - 41.310 but that doesn't mean the
01:39 - 42.343 Villanova case was correct.
01:39 - 44.244 Right. Right.
01:39 - 46.596 So you can't the exception
01:39 - 48.882 can't swallow the rule.
01:39 - 52.086 Now, if I may interrupt that.
01:39 - 53.253 So I apologize.
01:39 - 54.321 I guess I'm I'm kind of
01:39 - 55.377 following up on on
01:39 - 56.991 Justice Thomas sitting in
01:39 - 59.455 on his question
01:39 - 00.961 as well, like Justice
01:40 - 04.331 Donahue did, is is
01:40 - 06.800 if we overlook
01:40 - 07.873 this authorized dealer
01:40 - 08.969 or maybe there's not
01:40 - 09.937 enough facts in the record
01:40 - 11.454 for us to figure out
01:40 - 13.607 what kind of dealer it is.
01:40 - 15.142 You know, I think there
01:40 - 16.900 maybe there's a distinction
01:40 - 18.879 between making your tractors
01:40 - 20.479 available to Home Depot
01:40 - 22.383 and Lowe's to sell versus
01:40 - 24.277 making your tractors available
01:40 - 25.652 to an authorized dealer.
01:40 - 26.614 I don't know if there's a
01:40 - 27.755 difference between the two.
01:40 - 28.405 Maybe there need to
01:40 - 29.323 be more facts developed.
01:40 - 30.552 But to me, I'm the
01:40 - 32.426 physical presence aspect.
01:40 - 34.633 It you seem to be hanging
01:40 - 37.131 your hat on the idea that,
01:40 - 40.170 yes, we can sell, we can have
01:40 - 42.302 a physical presence in terms
01:40 - 43.170 an authorized dealer.
01:40 - 44.151 I assume Husqvarna does
01:40 - 45.372 not have corporate stores.
01:40 - 47.565 They they don't in
01:40 - 49.243 Philadelphia County, they have
01:40 - 51.202 you have their own standalone
01:40 - 52.913 dealerships in certain.
01:40 - 53.907 Well dealership is
01:40 - 55.149 an authorized seller
01:40 - 56.350 but do they have a do they.
01:40 - 58.585 Have standalone Husqvarna.
01:40 - 59.653 Torana owned.
01:40 - 00.637 Dealers. Corporate
01:41 - 01.755 source dealership.
01:41 - 02.156 Okay.
01:41 - 03.160 I think that's I think that's
01:41 - 04.224 an interesting fact as well.
01:41 - 05.324 But but I guess what
01:41 - 06.560 I'm trying to say is
01:41 - 09.745 let's say Husqvarna has
01:41 - 12.266 one of those in Philadelphia.
01:41 - 12.866 Yeah.
01:41 - 16.003 Just because it wants to have a
01:41 - 19.473 a visible presence in a city
01:41 - 21.404 where everybody lives,
01:41 - 23.610 where Justice Dockerty grew up
01:41 - 25.156 and there's only pavement,
01:41 - 26.547 but they want to have
01:41 - 29.616 Husqvarna as lights.
01:41 - 32.080 So people can see that
01:41 - 33.420 when they're driving through
01:41 - 34.894 as tourists or whatever and
01:41 - 36.723 they don't sell a single thing.
01:41 - 41.061 Your theory would say
01:41 - 42.538 that Husqvarna can never
01:41 - 44.164 be sued in Philadelphia,
01:41 - 46.229 despite the fact that they have
01:41 - 48.202 a store there showing equipment
01:41 - 49.952 because we just don't sell
01:41 - 51.538 to people in Philadelphia.
01:41 - 52.843 So the physical presence
01:41 - 53.803 under your theory
01:41 - 54.775 doesn't matter.
01:41 - 58.412 So that's not correct.
01:41 - 01.548 And I I've been practicing law
01:42 - 04.384 for almost 43 years, and the
01:42 - 05.995 sometimes the lack of
01:42 - 06.744 evidence is
01:42 - 08.322 significant evidence.
01:42 - 09.513 And I started by
01:42 - 10.824 giving a laundry list
01:42 - 13.223 Husqvarna has, as Justice
01:42 - 15.062 Donahue pointed out,
01:42 - 16.818 they have independent
01:42 - 19.066 dealers who sell their product
01:42 - 21.902 one or two Philadelphia County,
01:42 - 23.933 but they don't have a
01:42 - 25.139 storefront like
01:42 - 26.840 the the in apposite
01:42 - 28.727 analogies that my
01:42 - 30.878 esteemed colleague put up.
01:42 - 32.547 I mean, Apple Computer,
01:42 - 33.947 if Apple Computer
01:42 - 36.383 is selling
01:42 - 38.353 iPhones and an
01:42 - 40.187 iPhone costs $1,000
01:42 - 41.973 and you sell hundreds of
01:42 - 44.458 iPhones in Philadelphia County,
01:42 - 46.047 you have other evidence
01:42 - 47.050 that the trial
01:42 - 48.495 court can look at.
01:42 - 50.966 You have a storefront,
01:42 - 52.966 you have employees.
01:42 - 54.359 You might have a contract
01:42 - 55.869 with the city of Philadelphia.
01:42 - 57.218 You might you might
01:42 - 58.805 rent property there.
01:42 - 00.697 And none of those
01:43 - 03.310 are present in this case.
01:43 - 04.111 Now, who knew?
01:43 - 06.480 That judge knew knew that.
01:43 - 08.382 And what's the test here?
01:43 - 09.627 The test that the
01:43 - 11.118 superior court was
01:43 - 12.542 to have followed was
01:43 - 14.421 abuse of discretion. And
01:43 - 17.291 under the abuse of discretion.
01:43 - 18.659 Standard Judge
01:43 - 20.144 knew, knew every bit of
01:43 - 21.146 evidence that I
01:43 - 22.629 just recited to you.
01:43 - 24.023 And he knew five
01:43 - 25.499 thousandths of 1%.
01:43 - 27.122 And he knew that the Carter
01:43 - 28.769 case and the Purcell case
01:43 - 30.498 and the Monaco case and
01:43 - 32.139 Santana Barry all looked
01:43 - 35.943 at continuous and sufficient,
01:43 - 37.538 because it's not just
01:43 - 39.846 that it's happens regularly.
01:43 - 41.815 It's is it. Enough?
01:43 - 42.711 Could I jump in on
01:43 - 43.884 that sort of counsel?
01:43 - 46.579 I take it, I take it and tell
01:43 - 48.522 me if I'm incorrect here that
01:43 - 50.527 you're not advocating today
01:43 - 52.659 for a bright line test, correct?
01:43 - 54.361 I'm not and never have.
01:43 - 57.097 And the the
01:43 - 59.398 what we could say the
01:43 - 00.701 new new argument. I'm
01:44 - 05.048 essentially I guess
01:44 - 06.773 what I'm wondering is,
01:44 - 10.010 aren't all of these cases then
01:44 - 13.435 going to be, well,
01:44 - 14.548 abuse of discretion?
01:44 - 15.875 You know, one of your
01:44 - 17.417 arguments here and and
01:44 - 20.921 I'm searching for
01:44 - 24.324 a what possible value we could
01:44 - 25.597 deliver in a case like
01:44 - 27.361 this as far as the law goes,
01:44 - 29.558 when it's basically
01:44 - 30.831 all going to be
01:44 - 34.062 the discretion of the
01:44 - 35.269 trial court, I mean,
01:44 - 36.733 unless there's a wild outlier
01:44 - 38.272 in one direction or another,
01:44 - 42.142 how can it ever be?
01:44 - 42.976 How could it ever
01:44 - 44.849 be an abuse of discretion if
01:44 - 46.947 we get a reasoned application
01:44 - 47.713 of the continuous
01:44 - 48.915 and sufficient standard,
01:44 - 49.988 given that there's no,
01:44 - 51.084 you know, particular
01:44 - 52.224 numerator denominator,
01:44 - 53.754 no, no particular fraction.
01:44 - 57.658 So to find an abuse of
01:44 - 59.226 discretion and to
01:44 - 01.561 overrule a trial court,
01:45 - 03.907 the what the Superior
01:45 - 05.232 Court has to do
01:45 - 06.873 is find that the decision
01:45 - 08.869 was manifestly unreasonable,
01:45 - 10.895 arbitrary, capricious,
01:45 - 12.806 failed to apply the law
01:45 - 13.995 or motivated
01:45 - 15.842 by bias or ill will.
01:45 - 17.966 What they can't do
01:45 - 19.980 is change the law.
01:45 - 21.815 And what the superior court,
01:45 - 23.292 the majority here did
01:45 - 25.218 was they changed the law.
01:45 - 26.553 And if I might,
01:45 - 28.217 let me just read one sentence
01:45 - 29.790 from the superior court's
01:45 - 31.250 decision where the
01:45 - 33.960 majority didn't follow the law.
01:45 - 35.913 The majority said the
01:45 - 37.764 percentage of a company's
01:45 - 39.415 overall business that it
01:45 - 41.368 conducts in a given county
01:45 - 44.171 standing alone is not meaningful
01:45 - 46.028 and is not determinative
01:45 - 47.641 of the quantity prong.
01:45 - 50.977 If I were looking at that
01:45 - 51.981 in a brief from
01:45 - 53.280 my colleague, Mr.
01:45 - 54.181 Mueller.
01:45 - 55.226 I would say, what's
01:45 - 56.350 the site for that?
01:45 - 57.951 And the
01:45 - 59.035 answer is there
01:45 - 00.654 is no site for that.
01:46 - 03.123 That is that. On that point.
01:46 - 03.990 Certainly, your.
01:46 - 05.150 Honor, I apologize
01:46 - 06.660 for interrupting you.
01:46 - 07.194 But I'm sorry.
01:46 - 07.960 Wouldn't it make a
01:46 - 09.096 difference in this case,
01:46 - 10.650 if your total sales
01:46 - 11.898 were $75,000.
01:46 - 14.101 Per year, whether it was one.
01:46 - 16.770 Sale of $75,000 product.
01:46 - 19.105 Or 10,000 sales of a
01:46 - 21.675 product that was $7.50.
01:46 - 24.611 I mean, there's a continuum
01:46 - 26.947 continuum scale that can.
01:46 - 28.238 Slide from the one
01:46 - 29.916 sale to 10,000 sales.
01:46 - 31.079 You could have a
01:46 - 32.853 hundred sales at $750.
01:46 - 34.225 And all that would
01:46 - 35.522 make a difference
01:46 - 38.792 on your view of that activity.
01:46 - 41.368 And that kind of
01:46 - 43.230 bothers me with this.
01:46 - 45.732 I get it Your Honor. It might.
01:46 - 47.200 But that,
01:46 - 49.240 first of all, the defendant's
01:46 - 51.304 duty is to raise the issue.
01:46 - 52.611 And under Rule 1028,
01:46 - 54.007 we raised it and we
01:46 - 56.343 we established a record.
01:46 - 58.138 The plaintiff's duty then to
01:46 - 00.280 go forward is to establish, oh,
01:47 - 02.135 no, there's enough evidence
01:47 - 04.084 here to counter Vail that.
01:47 - 04.992 And they have to
01:47 - 06.153 do their job, too.
01:47 - 07.498 The plaintiff does, and
01:47 - 09.456 then the trial judge weighs it.
01:47 - 11.379 But what we don't allow is we
01:47 - 13.527 don't allow the Superior Court
01:47 - 15.009 to then stand in
01:47 - 16.763 the shoes of the trial
01:47 - 18.030 judge and say, I
01:47 - 19.800 disagree with judge.
01:47 - 20.995 No, the new do they
01:47 - 22.469 don't get to do that.
01:47 - 23.537 They they
01:47 - 26.564 it's either an abuse
01:47 - 28.542 of discretion or it's a de
01:47 - 29.409 novo review.
01:47 - 30.176 And here the
01:47 - 31.745 review is not de novo,
01:47 - 33.447 although I would
01:47 - 34.781 argue strenuously
01:47 - 36.175 that that's exactly what
01:47 - 37.651 the Superior Court did.
01:47 - 39.791 Instead, it's abuse of
01:47 - 41.688 discretion and under
01:47 - 43.549 an abuse of discretion,
01:47 - 45.759 you cannot change the law
01:47 - 47.048 and then say, oh, well, judge
01:47 - 48.361 knew didn't follow the law,
01:47 - 49.117 that we're now
01:47 - 50.230 saying it's a luck.
01:47 - 51.798 No, that's not how it works.
01:47 - 53.667 And so it is.
01:47 - 54.923 I am not advocating
01:47 - 56.136 as justice works
01:47 - 57.595 that I am not advocating
01:47 - 59.139 for a bright line test.
01:47 - 01.379 I am advocating for this
01:48 - 03.243 body to send a message
01:48 - 04.580 to the Superior
01:48 - 06.480 Court that standard
01:48 - 09.082 of review means something.
01:48 - 11.284 And I. May I follow up on that?
01:48 - 12.363 Yes. The superior
01:48 - 13.787 wrong in saying that
01:48 - 16.141 each case is depending on
01:48 - 17.791 the facts and circumstances,
01:48 - 19.126 the totality of the facts and
01:48 - 20.393 circumstances. Yes, sure.
01:48 - 22.395 You're wrong about that.
01:48 - 23.430 They said that.
01:48 - 24.064 Who says here?
01:48 - 25.289 Your court said they
01:48 - 26.600 did cases depending
01:48 - 27.735 on the totality of the
01:48 - 29.102 facts and circumstances.
01:48 - 31.238 Is that incorrect?
01:48 - 34.774 So I'm not entirely following
01:48 - 37.677 your each case under Purcell.
01:48 - 40.164 Each case is to be
01:48 - 42.215 evaluated on own.
01:48 - 44.658 And the superior court, I
01:48 - 47.153 believe, was saying that
01:48 - 49.946 the trial court did
01:48 - 52.626 not correctly the law
01:48 - 54.819 because its decision
01:48 - 56.830 was based exclusively
01:48 - 58.221 on the percentage of
01:48 - 00.267 sales without consideration
01:49 - 01.467 of the other facts,
01:49 - 02.435 circumstances
01:49 - 03.967 footnote authorized
01:49 - 05.772 dealership in the venue.
01:49 - 10.143 So my, my, my colleague Mr.
01:49 - 11.386 PASHMAN has said in
01:49 - 13.513 his brief and I agree with it,
01:49 - 15.942 he said, look, opinions
01:49 - 18.518 of court are not statutes.
01:49 - 21.143 And judge knew when he wrote
01:49 - 23.790 his seven or eight page opinion
01:49 - 26.301 he didn't include the fact
01:49 - 27.994 that Husqvarna doesn't
01:49 - 28.931 have an office there
01:49 - 30.130 doesn't have employees,
01:49 - 31.048 doesn't have all the things
01:49 - 31.650 that I've already
01:49 - 32.265 told you about.
01:49 - 34.668 Don't pay taxes, no address.
01:49 - 36.102 They don't have a storefront.
01:49 - 36.503 They don't
01:49 - 38.472 have a manufacturing facility
01:49 - 40.807 or or a distributor center here.
01:49 - 41.908 They don't have any of that.
01:49 - 43.310 He didn't include that.
01:49 - 44.875 But that was all
01:49 - 47.547 evidence that he reviewed
01:49 - 49.549 and that was presented to him
01:49 - 51.026 when he found that
01:49 - 52.953 Husqvarna was not regularly
01:49 - 53.987 conducting business.
01:49 - 55.155 Now we know
01:49 - 58.273 that the scope of review by
01:49 - 01.995 the superior Court is plenary,
01:50 - 04.012 but the standard of review
01:50 - 06.366 is abuse of this discretion.
01:50 - 07.634 And why am I saying that?
01:50 - 09.302 Because the Superior Court could
01:50 - 10.894 look at all of the evidence
01:50 - 12.272 that I just gave you,
01:50 - 13.359 that we don't that
01:50 - 14.574 Husqvarna does not have
01:50 - 16.143 a business front end
01:50 - 18.211 and all of those things.
01:50 - 19.846 And the Superior Court
01:50 - 21.385 then say, did judge new
01:50 - 23.016 abused his discretion.
01:50 - 25.423 Well he followed Kanter and
01:50 - 27.520 Zam pen a very and Monaco
01:50 - 28.624 he followed with
01:50 - 30.223 them all and he didn't.
01:50 - 32.292 I disagree with Mr.
01:50 - 33.793 Bastian where Mr.
01:50 - 36.239 Bachelet in his brief says
01:50 - 39.466 that there was a 1% bright line.
01:50 - 42.002 Never it judge news opinion.
01:50 - 43.370 Does he say that?
01:50 - 44.971 Rather what he does
01:50 - 46.830 is he shows what the national
01:50 - 48.842 average would be and he shows
01:50 - 51.115 Husqvarna, what business
01:50 - 52.345 Husqvarna was doing in
01:50 - 53.946 Philadelphia, in Philadelphia
01:50 - 55.181 and in Bucks County.
01:50 - 56.760 In Bucks County,
01:50 - 58.685 Husqvarna does 40 times
01:50 - 00.343 more business than they
01:51 - 02.389 do in Philadelphia County.
01:51 - 04.546 And so look under due process
01:51 - 06.726 and under equal protection.
01:51 - 07.994 We want to treat all
01:51 - 10.236 corporations the same and
01:51 - 13.133 the proportional test is fine.
01:51 - 15.262 And the way Judge Newt did
01:51 - 16.786 it, frankly, is is
01:51 - 18.238 very convincing
01:51 - 20.010 because he looked at the
01:51 - 22.475 test as it relates to Husqvarna
01:51 - 24.514 and said Husqvarna is six
01:51 - 25.696 times lower in
01:51 - 27.480 Philadelphia County
01:51 - 28.281 than what
01:51 - 30.047 they would sell on average
01:51 - 32.385 in the United States in general.
01:51 - 34.151 And they're 40 times lower than
01:51 - 36.056 what they sell in Bucks County.
01:51 - 37.554 So they're not regularly
01:51 - 38.858 doing business here.
01:51 - 39.898 Counsel I don't I'm not
01:51 - 40.927 sure a comparison of,
01:51 - 41.985 of, of another
01:51 - 43.430 viable form is the test
01:51 - 44.719 for whether Philadelphia
01:51 - 46.032 is is the wrong forum.
01:51 - 48.613 But if I'm understanding your
01:51 - 50.170 argument, you acknowledge
01:51 - 51.422 that judge new in
01:51 - 52.772 his 1925 opinion
01:51 - 53.886 only focused on the
01:51 - 55.675 percentage which seems to be
01:51 - 56.372 what the Superior
01:51 - 57.510 Court had a problem with.
01:51 - 01.414 Correct.
01:52 - 02.615 I'm not going to argue with you.
01:52 - 03.616 Your I mean.
01:52 - 06.286 I just I mean, I know.
01:52 - 07.781 Because I think your argument
01:52 - 09.456 if that's which I think it is,
01:52 - 11.675 I think your point
01:52 - 13.126 is and as I think
01:52 - 15.200 multiple appellate
01:52 - 16.563 courts have said
01:52 - 17.750 when reviewing a trial court
01:52 - 19.132 decision, abuse of discretion,
01:52 - 19.908 it's not necessary
01:52 - 21.101 that the trial court cite
01:52 - 21.958 every piece of evidence
01:52 - 22.802 that the trial court
01:52 - 23.822 relied on to reach
01:52 - 25.038 a decision precise.
01:52 - 26.426 And that's what. But
01:52 - 27.907 so your argument is
01:52 - 31.111 is even is
01:52 - 31.917 what the superior court
01:52 - 32.679 should have done was
01:52 - 33.880 look at everything
01:52 - 34.838 if they if they were going
01:52 - 36.082 to say that the trial that that
01:52 - 38.021 that judge knew
01:52 - 39.552 abused his discretion,
01:52 - 42.722 they had to look at his decision
01:52 - 44.075 in light of all of the
01:52 - 45.825 evidence that was produced
01:52 - 46.888 and not just the evidence
01:52 - 48.061 he cited, in his opinion,
01:52 - 48.911 and decide whether
01:52 - 50.263 the result that he reached
01:52 - 52.124 was an abuse of discretion
01:52 - 53.700 in light of the evidence.
01:52 - 55.640 Certainly, it's a it's
01:52 - 57.871 the standard of review.
01:52 - 59.155 The standard of review
01:52 - 00.640 is abuse of discretion.
01:53 - 02.710 But the scope of review,
01:53 - 04.544 the what is plenary
01:53 - 06.242 that the superior court can
01:53 - 07.747 look at all of the evidence,
01:53 - 09.641 but then they have to
01:53 - 10.558 determine the
01:53 - 12.051 standard of review,
01:53 - 13.294 which is an abuse
01:53 - 14.954 of discretion standard.
01:53 - 17.148 And my overriding point is
01:53 - 19.959 you don't get to change the law
01:53 - 21.950 and then say judge knew,
01:53 - 23.730 abused his discretion.
01:53 - 24.569 Okay, we understand
01:53 - 25.298 your argument.
01:53 - 26.221 Are there any other
01:53 - 27.167 questions for Mr.
01:53 - 27.834 Bodie?
01:53 - 28.701 All right.
01:53 - 29.335 Thank you, sir.
01:53 - 30.270 Let's hear from Mr.
01:53 - 36.142 Baseman, who apparently
01:53 - 42.549 can't get enough of us.
01:53 - 43.266 Chief Justice Todd
01:53 - 44.250 May, please the court.
01:53 - 46.319 My name is Howard Benjamin.
01:53 - 46.897 In this case, I
01:53 - 47.854 represented plaintiffs
01:53 - 48.988 Ronald and Rosemary
01:53 - 50.990 hanging with me at Castle Table
01:53 - 54.369 are Robert Bungalows
01:53 - 57.263 in our African.
01:53 - 58.171 The record shows with
01:53 - 59.365 Huxtable and his products
01:53 - 00.763 are continuously offered for
01:54 - 02.235 sale in Philadelphia County
01:54 - 03.173 through Husqvarna
01:54 - 04.470 as authorized dealers
01:54 - 05.939 and the evidence shows
01:54 - 07.307 that the sale of those products
01:54 - 08.180 to consumers are
01:54 - 09.576 occurring on a frequent
01:54 - 11.007 and regularly recurring basis
01:54 - 12.412 rather than being isolated
01:54 - 13.880 and limited.
01:54 - 15.309 The trial court in case and
01:54 - 16.816 several other trial courts
01:54 - 18.973 before it transformed decisions,
01:54 - 21.154 holding that 1% of a company's
01:54 - 22.561 total business in a
01:54 - 24.290 given county suffices
01:54 - 25.627 to conduct a regularly
01:54 - 26.926 conducting business
01:54 - 29.295 into a necessary minimum amount.
01:54 - 30.414 These courts took something
01:54 - 31.598 that was deemed sufficient
01:54 - 33.700 and made it mandatory
01:54 - 34.321 and necessary
01:54 - 35.501 requirement to qualify
01:54 - 36.149 as regularly
01:54 - 37.370 conducting business.
01:54 - 38.532 That was legal error,
01:54 - 39.606 which constitutes
01:54 - 40.974 an abuse of discretion.
01:54 - 42.442 Indeed, if that were the law,
01:54 - 43.584 Husqvarna could have
01:54 - 45.211 $5 million in annual sales
01:54 - 46.324 in Philadelphia County
01:54 - 47.513 and still not qualify
01:54 - 48.844 as regularly conducting
01:54 - 49.849 business there.
01:54 - 50.979 This court's decision in
01:54 - 52.418 Cantor versus American Honda
01:54 - 53.887 compels a firm.
01:54 - 54.723 It's the bank's
01:54 - 55.922 superior court hear
01:54 - 57.357 the relevant facts of Cantor,
01:54 - 58.318 which led to the reversal
01:54 - 59.459 of the trial court's order.
01:54 - 00.393 In that case,
01:55 - 01.518 transferring venue from
01:55 - 03.162 Philadelphia County are all but
01:55 - 04.451 indistinguishable from the
01:55 - 05.965 relevant facts of this case.
01:55 - 07.699 Annual sales in Philadelphia
01:55 - 09.002 County and Cantor range
01:55 - 11.177 from 35 to 40000 per year on
01:55 - 13.573 the low side to approximately
01:55 - 14.715 approximately half as
01:55 - 15.909 much as this case involved
01:55 - 17.577 to 70 of 80,000.
01:55 - 18.633 On the high side, exactly
01:55 - 19.712 the facts of this case.
01:55 - 21.708 The automobiles being sold
01:55 - 23.516 in Canter were on average way
01:55 - 25.251 more expensive than the products
01:55 - 25.993 Husqvarna has been
01:55 - 27.387 selling in Philadelphia County,
01:55 - 28.821 as shown by the record here.
01:55 - 29.656 And we have the reproduced
01:55 - 30.808 record sites in our brief
01:55 - 31.891 and I have them handy
01:55 - 33.960 right here, as you mentioned. Ca
01:55 - 36.471 Because I'm searching
01:55 - 37.830 as I was with Mr.
01:55 - 39.832 Bodie, the the
01:55 - 41.399 this the standard
01:55 - 42.936 that that this court
01:55 - 44.374 should articulate,
01:55 - 46.239 if any, in this case.
01:55 - 49.388 And I take it that you're also
01:55 - 51.811 not advocating for a bright line
01:55 - 53.304 rule or you can correct
01:55 - 54.414 me if I'm wrong on that.
01:55 - 56.604 And and and
01:55 - 01.421 furthermore, if if the
01:56 - 04.919 if this if the test is going to
01:56 - 07.860 be an abuse of discretion,
01:56 - 09.533 what meaningful guidance
01:56 - 11.230 can this court provide
01:56 - 15.368 that would that would
01:56 - 18.604 provide adequate
01:56 - 20.294 provide an adequate adequate
01:56 - 22.008 standard for trial court's
01:56 - 23.881 beyond don't be a wild
01:56 - 25.878 outlier in this direction
01:56 - 28.414 or in that direction
01:56 - 30.650 because if if there's
01:56 - 33.711 if there's not going to
01:56 - 35.388 be a number, a fraction,
01:56 - 38.891 a percentage.
01:56 - 39.959 I'm just
01:56 - 41.689 wondering if if these cases
01:56 - 43.830 just don't come in Syria, Adam,
01:56 - 46.145 and the courts just have to
01:56 - 48.668 say, yeah, we think that's okay.
01:56 - 49.821 You know, instinctively
01:56 - 51.404 we think that what's not okay
01:56 - 52.618 is it just the seat of
01:56 - 53.673 the pants judgment?
01:56 - 54.857 How how can we come up
01:56 - 56.609 with any satisfactory standard
01:56 - 00.580 to deal with these cases?
01:57 - 01.274 Well, obviously,
01:57 - 02.081 this is the case
01:57 - 03.649 that you presented with today.
01:57 - 04.413 And I think that is a
01:57 - 05.385 very difficult question.
01:57 - 06.300 You know, I disagree
01:57 - 07.286 with the other side
01:57 - 08.385 that they're saying that
01:57 - 09.555 there's not some cutoff
01:57 - 10.031 because they're
01:57 - 10.890 saying there's a cutoff.
01:57 - 12.279 They're saying that their
01:57 - 13.860 number is not good enough.
01:57 - 16.049 Apparently something is good
01:57 - 17.964 enough as, a percentage of sales
01:57 - 19.699 in a given county alone.
01:57 - 21.100 And the problem is
01:57 - 22.199 they're not here to tell
01:57 - 23.369 you what the answer is,
01:57 - 24.770 which I think is a fatal
01:57 - 26.372 defect in their argument.
01:57 - 26.639 You know,
01:57 - 28.462 I think the best hypothetical
01:57 - 30.309 to try to compare this case
01:57 - 31.668 with the real world
01:57 - 33.846 outside of this case is Ford
01:57 - 35.698 is does Ford Motor Company
01:57 - 36.916 regularly do business
01:57 - 38.084 in Philadelphia County?
01:57 - 39.437 There are three Ford
01:57 - 41.087 dealerships located in
01:57 - 42.694 Philadelphia County, Pacific,
01:57 - 44.157 oh, Ford, Chapman, Ford.
01:57 - 48.094 And see Ford in in 2022, Ford
01:57 - 50.593 had $108 billion worth
01:57 - 53.800 of sales in North America.
01:57 - 56.903 If we take 1% of that,
01:57 - 57.531 they'd have to
01:57 - 58.504 have $1,000,000,000
01:57 - 59.507 worth of sales in
01:57 - 00.773 Philadelphia County
01:58 - 02.178 to be regularly doing business
01:58 - 03.176 in Philadelphia County,
01:58 - 03.844 even though
01:58 - 05.278 similar to Husqvarna,
01:58 - 06.851 they have dealerships that
01:58 - 08.448 are open every day, more
01:58 - 09.754 or less in Philadelphia
01:58 - 11.484 County selling Ford product.
01:58 - 13.180 The key to your argument and
01:58 - 14.309 me, I'm struggling
01:58 - 15.388 because I mean,
01:58 - 16.930 if you're suggesting that
01:58 - 18.558 this percentage of sales
01:58 - 19.972 is sufficient, then
01:58 - 21.861 Justice Wecht is right.
01:58 - 23.463 I mean, we're wasting our time.
01:58 - 25.140 I mean, that's an abuse of
01:58 - 27.100 discretion kind of standard.
01:58 - 29.402 And the trial court
01:58 - 31.404 within in its discretion
01:58 - 32.371 to do what it did.
01:58 - 34.930 If, on the other hand, your
01:58 - 37.043 argument is a defendant
01:58 - 39.380 who chooses to have
01:58 - 42.482 a presence in the forum
01:58 - 46.219 on a continuous basis,
01:58 - 48.472 establishes the general
01:58 - 50.156 and habitual nature
01:58 - 52.525 of the activities in the forum,
01:58 - 53.673 and that fulfills
01:58 - 54.894 the quantity test.
01:58 - 55.428 Here.
01:58 - 56.783 Regardless of the
01:58 - 58.564 percentage of sales.
01:58 - 59.249 I think that's
01:58 - 00.266 absolutely my argument.
01:59 - 01.892 And I thank you for thank
01:59 - 03.870 you for letting me say that.
01:59 - 05.333 I'm not arguing other thing,
01:59 - 06.873 I'm not I'm not here to say
01:59 - 08.404 that percentage of
01:59 - 09.976 sales should govern.
01:59 - 10.817 In fact, we're saying
01:59 - 11.844 absolutely the opposite
01:59 - 12.718 and precisely what
01:59 - 13.813 you just summarized,
01:59 - 15.466 which is that having a
01:59 - 18.050 presence to an authorized dealer
01:59 - 19.485 in Philadelphia County
01:59 - 21.604 is insufficient to address
01:59 - 24.157 what Justice Mundy had asked.
01:59 - 25.024 It's possible
01:59 - 26.408 to have one or two sales of a
01:59 - 27.960 particularly expensive product
01:59 - 30.893 and get to 1% of a company's
01:59 - 33.266 total revenue in theory
01:59 - 35.017 and my argument to you is
01:59 - 35.800 not that that
01:59 - 37.136 would be sufficient.
01:59 - 37.770 You have
01:59 - 39.805 the Superior Court
01:59 - 40.506 and bank
01:59 - 42.001 and the panel before it got
01:59 - 43.743 it absolutely right by saying
01:59 - 45.507 that percentage of
01:59 - 47.747 sales is not the cynical
01:59 - 48.957 non of of deciding
01:59 - 50.950 regularly doing business but
01:59 - 52.419 but in your response to
01:59 - 54.153 Justice Donohue's question
01:59 - 56.689 physical presence regardless
01:59 - 57.637 of whether you sell a
01:59 - 59.158 single product, is dispositive.
01:59 - 01.220 No, the fact that the
02:00 - 02.595 record here shows
02:00 - 04.630 that there is in the record
02:00 - 06.020 evidence of what the sales
02:00 - 07.433 were on an annual basis.
02:00 - 08.785 Also, that's not
02:00 - 10.169 that's not my point.
02:00 - 11.210 And I think I think Justice
02:00 - 12.471 Donahue framed it to you like,
02:00 - 13.899 why are we talking
02:00 - 15.474 about percentages?
02:00 - 16.940 You know, you have an
02:00 - 18.711 authorized dealer here.
02:00 - 20.042 You availed yourself of the
02:00 - 21.447 forum, you sold a product.
02:00 - 22.742 Why are we talking about
02:00 - 24.050 whether you were successful
02:00 - 24.803 at selling or not
02:00 - 25.985 selling? You were there.
02:00 - 27.753 You were offering your products.
02:00 - 29.476 And my question to you is,
02:00 - 31.691 your position would be, I think
02:00 - 33.795 that the physical presence
02:00 - 35.328 of an authorized dealer
02:00 - 36.851 offering your products for sale,
02:00 - 38.397 regardless of whether you sell
02:00 - 40.933 a single one, is dispositive.
02:00 - 41.883 And the fact
02:00 - 42.802 that the trial court
02:00 - 43.803 judge didn't treat it
02:00 - 44.685 as dispositive was
02:00 - 45.938 an abuse of discretion.
02:00 - 47.823 I think that I disagree
02:00 - 49.175 with your characterization.
02:00 - 50.250 My argument for for
02:00 - 51.577 the following reason.
02:00 - 52.861 The there's both what's
02:00 - 54.113 known as the quality
02:00 - 56.282 and the quantity standards
02:00 - 57.773 that this court has announced
02:00 - 59.185 in a series of decisions.
02:00 - 01.756 And if if no sales are going on
02:01 - 04.056 through the authorized dealer,
02:01 - 06.106 then then I think that you
02:01 - 08.227 fail to satisfy the quantity
02:01 - 10.329 prong of the analysis,
02:01 - 11.664 because there's nothing that's
02:01 - 13.110 going on of that county
02:01 - 14.834 that advances the central
02:01 - 16.711 component of of the
02:01 - 18.537 business that's being sued.
02:01 - 19.375 That's because
02:01 - 20.906 counsel, isn't it, that
02:01 - 22.429 that we're dealing here
02:01 - 24.243 with the prong number two
02:01 - 26.112 regularly conduct business.
02:01 - 26.782 Right that's why
02:01 - 27.647 the courts develop
02:01 - 28.825 the quality quantity
02:01 - 30.383 continuous insufficient.
02:01 - 31.284 Am I right. Right.
02:01 - 32.902 And it's undisputed here
02:01 - 35.087 that that the quality prong is
02:01 - 36.790 satisfied has grown in cases
02:01 - 38.824 that judge knew recognize that.
02:01 - 40.416 But you want a little
02:01 - 41.761 bit of everything, right?
02:01 - 43.725 You want you want the standard
02:01 - 45.331 to be you look at everything.
02:01 - 46.599 You look at the quantity,
02:01 - 47.700 you look at the quality.
02:01 - 49.969 You get the continuous nature,
02:01 - 50.582 the regularly
02:01 - 51.604 conducted business.
02:01 - 52.605 You look at. Everything.
02:01 - 53.486 And if I can just
02:01 - 54.707 touch on very briefly
02:01 - 56.475 the abuse of discretion argument
02:01 - 58.380 that the other side makes in
02:01 - 00.446 preparing for this argument.
02:02 - 00.579 You know,
02:02 - 01.658 I went back and looked at
02:02 - 02.848 the cases and Your Honor,
02:02 - 03.576 I have already pointed out,
02:02 - 04.383 you know, some of the cases
02:02 - 05.172 they're relying on
02:02 - 06.118 the Villanova case.
02:02 - 07.480 That was a superior
02:02 - 08.721 court decision.
02:02 - 09.855 But but this court's
02:02 - 10.956 ruling in Monaco,
02:02 - 11.861 which was the first
02:02 - 13.225 one to take on this issue,
02:02 - 15.000 and then two years later in
02:02 - 17.063 cancer and then even 13 years
02:02 - 18.747 later in Purcell, it's
02:02 - 20.533 one of those reversed
02:02 - 22.523 the trial court's decision
02:02 - 24.136 on on the venue issue.
02:02 - 25.154 And I believe that Monaco
02:02 - 26.072 and cancer were both
02:02 - 27.673 direct appeals to this court
02:02 - 28.768 from trial court rulings,
02:02 - 29.842 and this court applied
02:02 - 30.698 the abuse of discretion,
02:02 - 31.220 said the trial
02:02 - 31.977 court got it wrong
02:02 - 33.412 as a matter of law.
02:02 - 34.180 Now, I heard Mr.
02:02 - 35.711 Bodie argue, you know,
02:02 - 37.616 the superior courts can't
02:02 - 40.548 make a new ruling of law
02:02 - 43.322 and and apply it to the case
02:02 - 44.763 without constituting
02:02 - 46.592 an abuse of discretion.
02:02 - 48.526 You know, this, as Your Honor
02:02 - 49.929 said, well recognized every.
02:02 - 51.290 One of these cases presents
02:02 - 53.032 its own facts and circumstances.
02:02 - 53.792 And it was dealing
02:02 - 54.533 with this case.
02:02 - 55.601 And it decided
02:02 - 56.119 when you had
02:02 - 57.236 $1,000,000,000 company,
02:02 - 58.660 which none of these
02:02 - 00.940 earlier cases involved, that
02:03 - 02.308 that the percentage of business
02:03 - 03.798 in a given county perhaps
02:03 - 05.311 becomes less meaningful
02:03 - 06.794 that than in the earlier
02:03 - 08.047 cases that had arisen
02:03 - 10.282 which which were not ones that
02:03 - 10.793 especially in
02:03 - 11.650 front of this court
02:03 - 13.584 were not ones that involved
02:03 - 15.254 such large companies.
02:03 - 17.323 And so the superior court ruled
02:03 - 18.401 that judge knew
02:03 - 19.625 committed an error of
02:03 - 20.678 and and the abuse
02:03 - 22.194 of discretion standard
02:03 - 23.563 has is one of the
02:03 - 24.330 elements and Mr.
02:03 - 25.631 Boadu even said it
02:03 - 26.729 did did the trial court
02:03 - 27.900 commit an error of law
02:03 - 29.429 and and that was
02:03 - 31.303 the basis of reversal.
02:03 - 32.556 What was the error?
02:03 - 33.672 What was the error?
02:03 - 35.252 The error was in in
02:03 - 37.276 viewing as dispositive
02:03 - 38.951 the fact that the percentage
02:03 - 40.079 of sales was so low.
02:03 - 40.479 And let me just
02:03 - 41.013 clarify one thing
02:03 - 41.800 that you asked
02:03 - 43.182 earlier, which is that
02:03 - 44.583 we've we've been
02:03 - 46.010 in this case together
02:03 - 46.998 throughout the
02:03 - 48.421 appellate process.
02:03 - 49.962 So this is our third appellate
02:03 - 51.424 oral argument of the case.
02:03 - 53.058 And the other side
02:03 - 54.563 has been very consistent
02:03 - 56.662 in pointing it out at each step
02:03 - 58.969 that here's all the facts that
02:03 - 00.666 were in front of Judge News.
02:04 - 01.558 So it's not like the
02:04 - 02.835 Superior Court didn't know
02:04 - 04.336 any of the things that Mr.
02:04 - 05.388 Bode is saying about there
02:04 - 06.505 was no physical presence,
02:04 - 07.440 there's no this, there's
02:04 - 08.845 no that you know, all
02:04 - 10.476 all of that was there.
02:04 - 12.031 And and the superior
02:04 - 13.846 court understood that
02:04 - 15.014 and recognized it.
02:04 - 15.921 And and they looked
02:04 - 16.949 at judge's decision
02:04 - 17.805 and said, you're the
02:04 - 19.118 reason the judge new decide.
02:04 - 20.544 So none of that's there. So
02:04 - 21.821 that doesn't weigh in our favor.
02:04 - 23.656 One thing weighs in our favor.
02:04 - 25.312 And the question is,
02:04 - 27.326 is that enough or not?
02:04 - 27.794 So it's not an
02:04 - 28.527 issue of, you know,
02:04 - 30.834 all these other things overcome
02:04 - 32.865 the one thing they don't.
02:04 - 33.818 And that's what the
02:04 - 35.100 superior court decided.
02:04 - 36.529 So I have I have one
02:04 - 38.270 final question for me,
02:04 - 40.437 and it gets back to this
02:04 - 42.074 conflation of the quality
02:04 - 46.545 and quantity tests.
02:04 - 48.080 I'm not so sure
02:04 - 49.360 that you're correct in
02:04 - 51.016 giving up that point here,
02:04 - 52.351 but tell me if I'm wrong.
02:04 - 54.001 I mean, let's say
02:04 - 56.555 that the dissenting tier
02:04 - 58.906 had $75,000 worth of sales
02:04 - 01.827 through Lowe's and Home Depot.
02:05 - 03.095 That hypothetical.
02:05 - 06.999 Okay, that would be
02:05 - 09.348 every sale of their product is
02:05 - 11.203 the essence of their business.
02:05 - 12.859 And so that would sell
02:05 - 15.374 the quantity, the quality test,
02:05 - 18.101 but it wouldn't have anything
02:05 - 20.946 to do with the quantity test
02:05 - 22.963 and they would
02:05 - 24.450 fail the quantity test
02:05 - 25.502 if that's how they
02:05 - 26.519 met the quality
02:05 - 29.822 aspect of this analysis.
02:05 - 31.663 The difference here is
02:05 - 33.459 that the way they matched
02:05 - 35.849 the quality analysis was
02:05 - 38.764 to have a physical presence
02:05 - 41.090 in the venue by virtue of
02:05 - 43.235 the authorized dealership.
02:05 - 44.961 So you can have
02:05 - 46.739 can have a situation
02:05 - 48.216 where you meet the quality
02:05 - 50.175 but you don't meet the quantity.
02:05 - 51.563 I'm just wondering
02:05 - 52.945 in this situation,
02:05 - 55.317 can you ever not meet
02:05 - 58.050 the quantity aspect of it
02:05 - 59.440 because of the physical
02:05 - 00.853 presence in the venue
02:06 - 02.764 which establishes the
02:06 - 04.757 habitual and general
02:06 - 06.293 nature of the activity,
02:06 - 08.594 which is all this test is about.
02:06 - 09.913 It's to answer that
02:06 - 10.996 question, right?
02:06 - 11.958 Even if they never
02:06 - 13.432 successfully made a sale.
02:06 - 15.406 I if the court wishes
02:06 - 16.702 to conclude that,
02:06 - 17.272 I think to my
02:06 - 18.270 side still prevails,
02:06 - 19.473 we're happy to have
02:06 - 21.340 that as as the as the rule.
02:06 - 23.576 So, you know, I'm not sure.
02:06 - 26.016 But I mean, I see, the I see
02:06 - 27.367 the possibility
02:06 - 29.181 in this situation.
02:06 - 31.023 I mean, it's a it's
02:06 - 33.085 a narrow situation,
02:06 - 35.057 but I'm not sure how frequently
02:06 - 36.989 or infrequently it comes up.
02:06 - 38.203 But I mean, that is a
02:06 - 39.792 distinction in this case.
02:06 - 42.821 And and again, since the
02:06 - 45.798 quality prong was conceded
02:06 - 47.284 and and was accepted
02:06 - 49.168 by by the courts below,
02:06 - 53.038 that has never been a scenario
02:06 - 53.960 that this case
02:06 - 55.774 actually itself presents.
02:06 - 57.326 But if I'm back
02:06 - 58.978 arguing that case,
02:06 - 01.036 I would be happy
02:07 - 03.449 to have you up there.
02:07 - 03.916 Okay.
02:07 - 04.934 Does anyone have any
02:07 - 06.285 other questions for Mr..
02:07 - 07.853 And thank you.
02:07 - 08.656 Thank you both.
02:07 - 09.755 Very well. Argued.
02:07 - 10.709 Our next case is the
02:07 - 11.590 Commonwealth of.
02:07 - 12.425 Pennsylvania
02:07 - 14.059 versus Kevin Jackson.
02:07 - 15.214 This is a criminal case
02:07 - 16.595 from Philadelphia County.
02:07 - 18.584 One night in December
02:07 - 20.299 2019, a Philadelphia police
02:07 - 21.764 officer was on patrol
02:07 - 23.535 when he heard gunshots.
02:07 - 24.799 He drove to the area where
02:07 - 26.038 the gunshots originated
02:07 - 27.857 and he saw a man named
02:07 - 29.775 Kevin Jackson running down
02:07 - 31.143 the sidewalk.
02:07 - 32.878 The officer asked why Mr.
02:07 - 33.598 Jackson was running
02:07 - 34.380 and he said it was
02:07 - 36.415 because he heard gunshots.
02:07 - 37.449 The officer ordered Mr.
02:07 - 38.564 Jackson to stop because
02:07 - 39.752 he thought he might be
02:07 - 40.651 somehow involved
02:07 - 41.687 in the shooting.
02:07 - 42.121 But Mr.
02:07 - 43.622 Jackson didn't stop
02:07 - 44.823 and as he was running, he
02:07 - 46.291 threw items into the bushes,
02:07 - 47.655 which later were determined to
02:07 - 49.028 be a handgun and a cell phone.
02:07 - 51.285 Mr. Jackson was later charged
02:07 - 52.665 with unlawful possession,
02:07 - 53.999 a firearm,
02:07 - 54.759 but then he filed a
02:07 - 55.868 motion in the trial court
02:07 - 56.998 asking to suppress that
02:07 - 58.103 evidence against him
02:07 - 59.526 because he said that the
02:07 - 00.213 officer did not
02:08 - 01.140 have a good reason
02:08 - 02.341 to order him to stop
02:08 - 04.143 the trial court,
02:08 - 05.450 decided that this evidence
02:08 - 06.578 had to be suppressed
02:08 - 08.095 because when the
02:08 - 09.248 officer yelled for Mr.
02:08 - 10.816 Jackson to stop
02:08 - 12.221 that moment, at that moment,
02:08 - 13.752 he had detained formerly Mr.
02:08 - 14.887 Jackson.
02:08 - 16.113 And so he needed to have
02:08 - 17.723 reasonable suspicion that Mr.
02:08 - 18.658 Jackson was involved
02:08 - 19.758 in criminal activity.
02:08 - 21.326 But according
02:08 - 22.620 to the officer's testimony,
02:08 - 24.229 he did not have that suspicion.
02:08 - 26.165 He was just Mr.
02:08 - 27.248 Jackson was just running
02:08 - 28.400 because he heard shots.
02:08 - 30.374 The prosecutors appealed
02:08 - 31.537 to the superior court,
02:08 - 33.739 which the trial court,
02:08 - 34.873 the superior court found the
02:08 - 36.451 totality of the circumstances
02:08 - 37.943 made the stop reasonable.
02:08 - 39.736 The officer reasonably
02:08 - 40.679 surmise that Mr.
02:08 - 41.974 Jackson could be the
02:08 - 43.816 victim, could be a witness
02:08 - 44.720 or the perpetrator in
02:08 - 46.085 connection with the shooting.
02:08 - 47.772 And so stopping him was
02:08 - 49.521 reasonable, and thus the gun
02:08 - 50.823 could be used as
02:08 - 52.725 evidence against Mr..
02:08 - 53.403 Mr. Jackson then
02:08 - 54.493 asked the Supreme Court
02:08 - 55.384 to take his case
02:08 - 56.695 and the court agreed.
02:08 - 58.564 In his brief, Mr.
02:08 - 59.576 Jackson argues that
02:08 - 00.666 the evidence shows
02:09 - 01.692 he was not suspected
02:09 - 03.001 of doing anything wrong
02:09 - 04.079 when he was ordered by
02:09 - 05.304 the officer to stop running.
02:09 - 07.027 The officer testified it
02:09 - 08.140 was normal for someone
02:09 - 09.103 to run away from an area
02:09 - 10.375 where a shooting has occurred
02:09 - 12.287 and the officer testified
02:09 - 13.278 he did not see Mr.
02:09 - 14.929 Jackson commit a crime or have
02:09 - 16.715 any reason to suspect that Mr.
02:09 - 18.984 Jackson had committed a crime.
02:09 - 20.331 On the other hand, in their
02:09 - 22.054 brief the prosecutors argue the.
02:09 - 24.022 Superior court got it right.
02:09 - 24.846 They point out that the
02:09 - 25.657 evidence showed that
02:09 - 26.378 the area where the
02:09 - 27.326 shooting had occurred
02:09 - 28.662 had experienced an
02:09 - 30.996 increase in gun violence. Mr.
02:09 - 32.230 Jackson also was the
02:09 - 33.799 only person in the area
02:09 - 34.892 and he was running
02:09 - 36.068 away from the gunshots.
02:09 - 38.403 Mr. Jackson also admitted
02:09 - 39.496 that he was running away
02:09 - 40.706 because of the gunshots.
02:09 - 42.140 In addition, the
02:09 - 43.175 officer was dealing
02:09 - 44.443 with a rapidly developing
02:09 - 45.744 situation and dangerous
02:09 - 47.412 circumstances in the field.
02:09 - 49.926 So there certainly was enough
02:09 - 51.817 for the officer to detain Mr.
02:09 - 53.549 Jackson, and as a result,
02:09 - 55.654 the evidence could fairly be
02:09 - 57.422 considered against him.
02:09 - 58.634 Let's go into the courtroom
02:09 - 59.825 now and watch arguments.
02:10 - 02.161 In this case.
02:10 - 03.483 A Philadelphia police
02:10 - 05.464 officer was in his patrol car
02:10 - 07.933 when he heard several gunshots.
02:10 - 08.978 He drove in the
02:10 - 10.202 direction of the shots
02:10 - 12.018 and saw the appellant running
02:10 - 14.173 on the sidewalk towards his car.
02:10 - 16.394 The officer exited his car
02:10 - 17.976 and asked the appellant
02:10 - 20.078 why he was running and he
02:10 - 21.058 that he was running
02:10 - 22.114 from the gunshots.
02:10 - 23.482 The officer
02:10 - 25.075 directed him to stop, but
02:10 - 26.885 the appellant kept running
02:10 - 29.788 and the officer gave chase.
02:10 - 31.223 As the appellant ran,
02:10 - 32.510 he discarded a cell
02:10 - 34.026 phone and a handgun.
02:10 - 37.005 Prior to a trial on gun related
02:10 - 39.298 charges, the appellant moved
02:10 - 41.600 suppress evidence of the gun,
02:10 - 43.051 arguing that he was
02:10 - 44.603 unconstitutionally
02:10 - 46.138 ordered to stop
02:10 - 47.744 because the officer did not
02:10 - 49.374 have reasonable suspicion
02:10 - 51.048 believe he was involved
02:10 - 52.611 in criminal activity.
02:10 - 54.008 The trial court
02:10 - 55.480 suppressed the evidence.
02:10 - 58.016 The Superior Court reversed
02:10 - 59.641 and we accepted review to
02:10 - 01.486 assess that determination.
02:11 - 03.889 Good morning.
02:11 - 05.106 Good morning, Chief Justice.
02:11 - 06.391 And good morning, justices.
02:11 - 07.426 It's a pleasure to be here.
02:11 - 10.762 Thank you.
02:11 - 12.519 That sounds like what I wrote
02:11 - 13.649 in my brief to the
02:11 - 14.666 Superior Court
02:11 - 15.280 is my statement
02:11 - 16.168 of facts and what I
02:11 - 17.510 wrote in my allocator,
02:11 - 18.937 almost word for word.
02:11 - 21.408 Typically, when I'm
02:11 - 23.208 here before this court
02:11 - 24.504 arguing from the
02:11 - 26.078 criminal defense side,
02:11 - 29.747 I'm trying to break new ground,
02:11 - 32.017 expand something, or making
02:11 - 33.725 what is kindly referred to
02:11 - 35.787 as a very novel argument. Mr.
02:11 - 36.421 Lloyd.
02:11 - 38.594 Here I find myself on the other
02:11 - 40.292 side of the table, so to speak.
02:11 - 42.327 I'm asking the Court to
02:11 - 43.343 reaffirm what
02:11 - 44.997 this court has said
02:11 - 45.992 and the Supreme Court,
02:11 - 47.332 United States has said, and
02:11 - 49.234 Superior Court of Pennsylvania
02:11 - 50.235 said over and over
02:11 - 51.203 and over again.
02:11 - 52.902 And that is in order
02:11 - 54.539 to justify a stop
02:11 - 56.773 or seizure based on
02:11 - 58.777 reasonable suspicion,
02:11 - 00.031 the officer has to
02:12 - 01.380 have a particular
02:12 - 04.182 particularized belief
02:12 - 06.142 that the person that
02:12 - 07.552 is being stopped,
02:12 - 08.703 the particular person
02:12 - 09.988 that is being seized,
02:12 - 12.320 is involved in criminal
02:12 - 13.992 activity, and that
02:12 - 16.995 although there was lip service
02:12 - 17.706 paid to that in
02:12 - 18.730 the superior Court,
02:12 - 19.929 they actually use
02:12 - 21.366 that exact phrase.
02:12 - 24.303 That's not what happened.
02:12 - 26.586 Mr. Brown was not
02:12 - 29.274 suspected by officers.
02:12 - 31.076 When asked if being involved
02:12 - 31.944 in criminal activity,
02:12 - 33.045 he was actually directly
02:12 - 35.220 asked that question at
02:12 - 37.816 the hearing and said no.
02:12 - 38.952 At the moment I
02:12 - 40.419 said to him, Stop
02:12 - 41.785 after I initially said,
02:12 - 42.721 What are you doing?
02:12 - 43.984 And he said, I'm running
02:12 - 45.324 away from the gunshots.
02:12 - 48.093 Yes, Mr.
02:12 - 51.129 BROWN Well, why you're running?
02:12 - 51.801 You said I'm running
02:12 - 52.531 away from gunshots.
02:12 - 54.166 And then he said, stop.
02:12 - 55.262 And that moment is
02:12 - 56.935 when I think we all agree
02:12 - 58.270 the seizure occurred.
02:12 - 00.806 And at that point, offense.
02:13 - 01.867 Counsel at the motion
02:13 - 03.208 asked the officer, well,
02:13 - 04.224 at that moment
02:13 - 05.777 when you said stop,
02:13 - 07.336 did you were you stopping
02:13 - 08.981 him because you believed
02:13 - 10.195 he was involved in criminal
02:13 - 11.750 activity? And the answer was no.
02:13 - 14.925 The Superior Court, I think,
02:13 - 16.822 reached the wrong decision
02:13 - 18.557 based on two principles.
02:13 - 20.812 And one was when they looked
02:13 - 23.495 at a prior Superior Court case.
02:13 - 25.454 Bryant There was some
02:13 - 28.000 looser usage of language,
02:13 - 29.445 although that was also a
02:13 - 30.769 reasonable suspicion case.
02:13 - 33.059 There wasn't that formula
02:13 - 35.140 we've heard over and over again
02:13 - 36.699 that the that the officers
02:13 - 38.343 have to have a particular
02:13 - 40.288 suspicion that the
02:13 - 41.580 person stopped,
02:13 - 42.880 was involved in
02:13 - 44.916 criminal activity in Bryant.
02:13 - 46.418 The court said that the
02:13 - 48.186 defendants who were stopped,
02:13 - 49.411 the defendant who was
02:13 - 51.189 stopped there, was acting in
02:13 - 53.303 an unusual, suspicious manner
02:13 - 55.660 and they didn't finish it out.
02:13 - 57.396 But the import of their ruling
02:13 - 00.078 and all the other cases they
02:14 - 03.168 cited used that full language.
02:14 - 05.274 And the Superior Court said
02:14 - 07.639 that this case was analogous
02:14 - 09.143 with Bryant, and there are
02:14 - 10.442 certainly some similarities.
02:14 - 11.331 They both happened
02:14 - 12.244 in Philadelphia.
02:14 - 13.398 They're both situations
02:14 - 14.880 where police heard gunshots
02:14 - 16.661 and did what they are duty
02:14 - 19.017 bound to do and ran toward them.
02:14 - 21.124 And in this case,
02:14 - 22.487 we saw only Mr.
02:14 - 24.122 Brown running from the scene.
02:14 - 25.222 The officer never made it to
02:14 - 25.877 the actual scene
02:14 - 26.625 of the shooting.
02:14 - 28.260 He was on his way there.
02:14 - 29.761 Mr. Brown was running away.
02:14 - 30.469 Mr. Brown wasn't
02:14 - 31.696 running from the officer,
02:14 - 32.786 was actually running
02:14 - 33.899 toward the officer
02:14 - 34.603 when the officer
02:14 - 35.600 first comes upon him
02:14 - 39.271 in Bryant,
02:14 - 41.656 the officer testified this
02:14 - 44.342 was a high crime area here.
02:14 - 46.139 The trial court, the
02:14 - 48.013 suppression court found that
02:14 - 49.232 it was not a high crime
02:14 - 50.582 area, that specifically
02:14 - 51.460 the Commonwealth had
02:14 - 52.584 and carried its burden.
02:14 - 54.186 This they did not meet
02:14 - 55.419 the burden of establishing
02:14 - 56.388 it was high crime.
02:14 - 57.557 I know in their brief
02:14 - 59.257 they point out that officers
02:14 - 00.955 who Nawrocki said there had
02:15 - 02.994 been an increase in gun violence
02:15 - 04.424 over a period of
02:15 - 06.064 years in that area.
02:15 - 08.934 And again, defense counsel Why.
02:15 - 09.734 Is that important?
02:15 - 11.022 Counsel Why you talking
02:15 - 12.504 about a high crime area?
02:15 - 14.473 Because
02:15 - 18.247 the amicus brief, I think,
02:15 - 19.845 is kind of misleading.
02:15 - 20.674 What does it have
02:15 - 21.780 to do with your case?
02:15 - 23.568 I I'm just and well,
02:15 - 25.650 we said very recently
02:15 - 29.187 that that factor is irrelevant.
02:15 - 30.188 So what you're
02:15 - 31.141 talking about, why why
02:15 - 32.424 are you talking about that?
02:15 - 33.397 Because the Supreme
02:15 - 34.860 because the Superior Court
02:15 - 36.628 relied on Bryant.
02:15 - 37.417 And that was an
02:15 - 39.030 essential element in Bryant.
02:15 - 40.134 So in Bryant, there were
02:15 - 41.633 three factors high crime area.
02:15 - 43.516 The men who ran in
02:15 - 45.170 Bryant were running when.
02:15 - 46.938 Everyone else remained still.
02:15 - 47.889 And that's what raised
02:15 - 49.040 the officer's suspicion.
02:15 - 51.776 Don't you lose under ran?
02:15 - 53.011 I mean, if we look
02:15 - 54.546 at what an objective
02:15 - 57.181 perspective would
02:15 - 59.417 give you of your client
02:15 - 00.459 running from the
02:16 - 01.920 scene, what could be
02:16 - 05.323 could be the shooter
02:16 - 07.359 could be.
02:16 - 08.206 But that's not even
02:16 - 09.528 what this officer believes.
02:16 - 10.605 But but then would
02:16 - 12.130 say that doesn't matter
02:16 - 14.841 if the objective circumstance
02:16 - 17.002 says would lead one to conclude
02:16 - 19.163 something even other than
02:16 - 21.373 what the police officer said.
02:16 - 23.453 He thought at the time it's
02:16 - 25.944 sufficient to the suppression.
02:16 - 28.448 Well, here that officer was
02:16 - 30.048 directly asked about Mr.
02:16 - 30.849 Brown's behavior.
02:16 - 31.733 And we have to view this
02:16 - 32.347 through the eyes
02:16 - 33.051 of that officer.
02:16 - 33.987 And that's the record
02:16 - 35.353 that was built not in Turin.
02:16 - 36.188 We don't
02:16 - 38.258 the direct testimony
02:16 - 39.191 was that Mr.
02:16 - 40.625 Brown's behavior was normal.
02:16 - 41.293 I know, but
02:16 - 42.851 but if but if there is
02:16 - 44.362 an objective manner
02:16 - 45.831 in which to perceive
02:16 - 47.399 that same evidence,
02:16 - 48.182 that would lead
02:16 - 49.201 to the conclusion
02:16 - 51.158 that criminal activity may have
02:16 - 53.138 been sought, don't we have to
02:16 - 54.306 look at that
02:16 - 56.675 if. But it only
02:16 - 58.276 supports reasonable suspicion
02:16 - 59.678 and even applying that,
02:16 - 00.962 it only supports
02:17 - 03.081 reasonable suspicion if Mr.
02:17 - 05.089 involved in that activity
02:17 - 06.885 and he's from his own words,
02:17 - 07.752 here's the opposite
02:17 - 08.920 of involvement from it.
02:17 - 10.956 He's running away from it.
02:17 - 13.625 So you or this.
02:17 - 16.661 Weather report
02:17 - 19.698 or law with regard to
02:17 - 21.433 this said, what's.
02:17 - 22.835 The purpose of police
02:17 - 24.221 officer if I suspect
02:17 - 25.203 the incident
02:17 - 26.331 was not a criminal
02:17 - 28.306 activity, it's the fact that.
02:17 - 31.243 Given the way that.
02:17 - 33.979 Occurred, have the words stop
02:17 - 38.149 and you brought him one minute.
02:17 - 41.653 So guilty that
02:17 - 42.754 scenario,
02:17 - 44.277 the issue before this
02:17 - 45.323 court that involves
02:17 - 48.033 consideration of like a
02:17 - 50.262 part of criminal activity.
02:17 - 51.930 Well, here it's
02:17 - 53.415 it's significant that
02:17 - 55.066 deflate did not begin
02:17 - 56.404 upon police arrival.
02:17 - 57.969 This isn't a classic.
02:17 - 59.051 I think it's the m is
02:17 - 00.105 the case in Newark
02:18 - 01.373 which ward law
02:18 - 02.373 where it's unprovoked
02:18 - 03.541 flight in a high crime
02:18 - 04.447 area or something
02:18 - 05.810 along those lines here,
02:18 - 08.094 we know what provoked a flight
02:18 - 10.448 running for safety running away
02:18 - 12.037 from danger as the police
02:18 - 13.952 officer was approaching it here,
02:18 - 16.488 the officer and Mr.
02:18 - 17.181 Brown were moving
02:18 - 18.023 toward each other.
02:18 - 19.073 Mr. Brown was not
02:18 - 20.959 trying to evade the officer.
02:18 - 22.063 He didn't turn around
02:18 - 22.861 when the officer
02:18 - 24.307 pulled down the street in a
02:18 - 25.830 marked car he didn't make.
02:18 - 28.466 Yeah, you'll see it in the case.
02:18 - 29.674 The Bleeding motions,
02:18 - 31.603 trying to hide anything, trying
02:18 - 33.071 to run away from the officer,
02:18 - 34.889 he continued in the exact path
02:18 - 36.975 that he was on and even answered
02:18 - 38.911 the police officer's question,
02:18 - 40.612 the police officer said,
02:18 - 42.213 Why are you running?
02:18 - 43.691 He said, There's gunshots,
02:18 - 45.250 which the officer himself
02:18 - 45.849 had heard at that
02:18 - 46.651 point and was moving
02:18 - 48.219 toward the Fourth Avenue.
02:18 - 50.310 It was never as far as wasn't
02:18 - 52.424 it wasn't because we agreed
02:18 - 55.260 that as
02:18 - 58.330 soon as his officer told Mr.
02:18 - 00.065 Brown to stop, after Mr.
02:19 - 00.987 Brown answered
02:19 - 02.400 the first question,
02:19 - 03.596 that that itself
02:19 - 05.570 constituted the seizure.
02:19 - 07.644 So that brought it within
02:19 - 10.075 Matos and long line of case
02:19 - 10.962 all this says so so
02:19 - 12.110 long as it's abandoned
02:19 - 13.545 after the seizure occurs.
02:19 - 14.813 This wasn't
02:19 - 17.481 which weren't the
02:19 - 18.216 facts here and I think
02:19 - 20.485 we do agree on that points.
02:19 - 23.921 But so it's your position
02:19 - 25.957 that these circumstances
02:19 - 28.281 viewed objectively do
02:19 - 30.962 not support this stop.
02:19 - 32.479 They do not support
02:19 - 35.066 particularized belief that Mr.
02:19 - 36.482 Brown was involved
02:19 - 38.002 in criminal acts.
02:19 - 38.999 Irrespective of
02:19 - 40.572 what the officer said.
02:19 - 42.078 Objective facts did
02:19 - 44.008 not support this stop.
02:19 - 45.282 Yes, irrespective
02:19 - 46.778 what the officer said.
02:19 - 49.280 If the standard is
02:19 - 50.784 the way the standards written
02:19 - 52.417 in the way the Superior Court
02:19 - 53.329 even said it out at the
02:19 - 54.386 beginning of its opinion
02:19 - 55.508 that there has to
02:19 - 57.122 be a particular belief
02:19 - 59.302 that the very person stopped
02:19 - 01.593 was in the criminal activity.
02:20 - 03.598 Objectively
02:20 - 05.463 speaking, if one hears
02:20 - 06.632 gunshots, the normal
02:20 - 08.533 response is to run the safety.
02:20 - 09.701 If one sees a bear,
02:20 - 10.928 the normal response
02:20 - 12.570 is to run away from it.
02:20 - 14.184 Well, and when a police officer
02:20 - 15.874 says stop, the normal response
02:20 - 19.344 is to stop the.
02:20 - 20.362 But when the police
02:20 - 21.513 officer says, stop,
02:20 - 22.261 there has to be a
02:20 - 23.615 constitutional basis for it.
02:20 - 24.778 So that's why the
02:20 - 26.551 flight, after saying stop
02:20 - 28.704 sort of puts the cart,
02:20 - 29.954 the horse or caught
02:20 - 30.825 something in the
02:20 - 31.856 wrong order there.
02:20 - 32.791 Okay.
02:20 - 36.194 Anyone have any other questions?
02:20 - 37.829 Mr. Lloyd? Thank you.
02:20 - 42.934 Mr. FARINA Thank you very much.
02:20 - 43.589 Morning, Your Honor.
02:20 - 44.235 Your May, please.
02:20 - 45.469 The Court could intervene on
02:20 - 46.771 behalf of the Commonwealth.
02:20 - 49.280 Your Honors, as this Court
02:20 - 50.875 is well aware of the fourth
02:20 - 52.778 to the Federal Constitution
02:20 - 53.945 in Article one, Section
02:20 - 55.847 eight to our state constitution
02:20 - 57.112 prohibit unreasonable
02:20 - 58.583 searches and seizures.
02:20 - 00.822 So the question in this
02:21 - 02.220 case and in any case
02:21 - 03.488 in which we're considering
02:21 - 05.041 whether or not a police
02:21 - 06.891 officer stop of a citizen
02:21 - 09.027 was constitutional or not, is
02:21 - 09.684 whether or not
02:21 - 10.795 the officer's actions
02:21 - 11.693 based on what he knew
02:21 - 12.831 at the time of the stop.
02:21 - 15.133 Were those actions reasonable
02:21 - 19.971 for the certainly
02:21 - 23.141 under
02:21 - 24.495 the facts that were
02:21 - 25.510 known to the officer
02:21 - 26.781 at the time that he
02:21 - 28.413 stopped the defendant,
02:21 - 29.166 those actions
02:21 - 30.415 clearly reasonable.
02:21 - 31.555 And what we have here is
02:21 - 33.151 an officer on patrol in an area
02:21 - 34.424 that had seen a large
02:21 - 36.087 increase in gun violence.
02:21 - 38.779 The officer hears multiple
02:21 - 41.092 gunshots, officers on his own.
02:21 - 42.527 He immediately drives toward
02:21 - 44.295 where the gunshots sounded from.
02:21 - 46.799 He sees the defendant
02:21 - 48.933 fleeing from that area.
02:21 - 49.962 Wait just. A minute.
02:21 - 51.536 Let's let's not say fleeing.
02:21 - 52.937 He was running. It was running.
02:21 - 56.107 Thank you.
02:21 - 57.909 Running from that area.
02:21 - 59.597 The defendant is the only
02:21 - 01.446 person who is out at all.
02:22 - 03.523 The only person whom
02:22 - 06.251 the officer sees before.
02:22 - 07.619 The officer stops the defendant.
02:22 - 08.308 He asks the defendant,
02:22 - 09.020 Why are you running?
02:22 - 10.121 The defendant says, I'm
02:22 - 11.489 running from the gunshots.
02:22 - 12.524 Did the defendant
02:22 - 14.308 have any obligation at all
02:22 - 16.461 to answer the police officer?
02:22 - 18.604 Was there any basis under
02:22 - 20.231 Terry commanding him?
02:22 - 21.732 Couldn't he have
02:22 - 23.635 just kept running?
02:22 - 24.802 Was the person running?
02:22 - 27.005 Your.
02:22 - 28.166 Well, Your Honor, I think
02:22 - 29.374 there's a as I understand
02:22 - 30.110 it, two different
02:22 - 31.309 questions, whether or not
02:22 - 32.777 the question is whether or not
02:22 - 33.713 an officer can
02:22 - 35.146 stop the defendant.
02:22 - 36.309 And I think he was entitled
02:22 - 37.582 to do so under these facts.
02:22 - 39.751 And then the question is, does
02:22 - 41.604 the defendant, is he required
02:22 - 43.288 to answer the officer's?
02:22 - 44.479 I think the answer to
02:22 - 46.324 that is is no, that an officer
02:22 - 48.175 can never force somebody
02:22 - 49.894 to answer questions.
02:22 - 51.396 You would need to bring a person
02:22 - 52.695 into court in order to compel
02:22 - 54.198 the person to answer questions.
02:22 - 56.185 But the officer is entitled
02:22 - 57.936 to put himself in a position
02:22 - 59.526 so that he can ask those
02:22 - 01.406 questions to the defendant
02:23 - 02.875 or to the person who
02:23 - 04.509 stopped and see whether or not
02:23 - 05.610 that person would want to.
02:23 - 08.279 Counsel outside of the facts.
02:23 - 09.574 The rule by the
02:23 - 11.416 panel in this case,
02:23 - 13.750 specifically ruled the police
02:23 - 15.386 can conduct a Terry stop
02:23 - 16.454 when they have
02:23 - 17.847 reasonable suspicion an
02:23 - 19.691 individual is a perpetrator,
02:23 - 21.469 victim or eyewitness
02:23 - 23.428 of a possible shooting.
02:23 - 24.996 Share with us
02:23 - 26.114 where there is case law,
02:23 - 27.632 whether it's the United States
02:23 - 29.489 Supreme Court or this court,
02:23 - 31.636 any lower court that indicates
02:23 - 34.639 that a witness, an individual
02:23 - 37.942 eyewitness is it's permissible
02:23 - 39.517 for a detention of a
02:23 - 40.945 permissible witness.
02:23 - 42.647 I assure you,
02:23 - 44.015 I think there are really
02:23 - 45.582 two different standards that
02:23 - 47.285 that apply here potentially.
02:23 - 48.681 Number one is
02:23 - 49.621 the Terry standard.
02:23 - 51.623 And I agree that under Terry,
02:23 - 53.020 you normally have suspect
02:23 - 54.892 that the person you're stopping
02:23 - 56.384 is himself engaged
02:23 - 57.662 in criminal activity
02:23 - 58.445 or has engaged
02:23 - 59.764 in criminal activity.
02:23 - 00.219 And if I could
02:24 - 00.898 just very quickly,
02:24 - 02.433 I disagree with my colleague.
02:24 - 03.394 The officer in this
02:24 - 04.636 case repeatedly stated
02:24 - 05.691 I thought that he was
02:24 - 06.871 possibly an offender.
02:24 - 08.208 He said, I thought
02:24 - 09.440 he could be a witness,
02:24 - 11.067 he could be a victim himself
02:24 - 12.777 or he could be an offender.
02:24 - 14.603 So it's our argument
02:24 - 15.780 that under Terry, that
02:24 - 17.187 that's a sufficient
02:24 - 18.916 a fair suspicion that
02:24 - 20.852 permitted.
02:24 - 22.820 And then for potential reason.
02:24 - 23.900 We've all learned
02:24 - 25.390 when we were rookies,
02:24 - 27.056 you know, you can't shrug
02:24 - 28.693 your shoulders and walk away,
02:24 - 30.354 but a reasonable
02:24 - 32.163 hunch is not sufficient.
02:24 - 34.121 What you just put on what
02:24 - 36.100 your argument is that he had a
02:24 - 37.324 you didn't have a
02:24 - 38.436 suspicion. It was a hunch.
02:24 - 39.635 He may be he may
02:24 - 41.539 be the concept of Terry
02:24 - 42.563 is that I think he
02:24 - 43.841 committed the crime.
02:24 - 46.434 The concept of Terry,
02:24 - 48.379 Your Honor, is reasonable
02:24 - 49.980 suspicion that has been
02:24 - 51.279 defined this court
02:24 - 52.517 by other courts
02:24 - 54.059 as being a standard
02:24 - 55.787 that's considerably less
02:24 - 56.778 than the preponderance
02:24 - 58.022 of the evidence standard.
02:24 - 59.248 But it has to be
02:24 - 00.558 criminal activity.
02:25 - 03.228 It has to be as particularized
02:25 - 05.296 as to that defendant.
02:25 - 06.631 And in responding to justice.
02:25 - 07.783 Daugherty You
02:25 - 10.034 didn't grapple with the
02:25 - 13.538 that this Superior Court panel
02:25 - 15.087 applied to apply to extend
02:25 - 16.841 it to victims and witnesses
02:25 - 19.015 which Terry and he bar and
02:25 - 21.212 Dunaway have never done.
02:25 - 23.448 SCOTUS has never proved that.
02:25 - 26.244 And my question for
02:25 - 29.821 you is, if we affirm here
02:25 - 34.025 who can the police not stop?
02:25 - 36.466 If we affirm here, isn't it
02:25 - 38.262 the case that the police
02:25 - 40.519 could stop anybody
02:25 - 42.800 in any situation
02:25 - 44.799 if there are gunshots and
02:25 - 46.104 people are running away?
02:25 - 48.897 What will, Your Honor, and
02:25 - 50.708 how does that not violate?
02:25 - 51.542 Well,
02:25 - 54.378 my my position is that there are
02:25 - 55.321 basically two frameworks
02:25 - 56.647 under which we need to consider
02:25 - 57.181 this case.
02:25 - 58.374 The first is Terry, which
02:25 - 59.784 we have been talking about.
02:26 - 01.708 But the second framework is
02:26 - 03.521 just a general reasonableness
02:26 - 04.155 standard
02:26 - 04.989 that's been applied
02:26 - 06.520 by this court in the
02:26 - 08.693 Beaman case from 2004 and.
02:26 - 09.936 If when your honors
02:26 - 11.863 review my brief, you'll see
02:26 - 13.469 my entire second section
02:26 - 15.032 deals with situations
02:26 - 17.062 where courts have found
02:26 - 19.203 various courts from the country.
02:26 - 20.705 Federal and state courts
02:26 - 22.774 have found
02:26 - 24.493 that if a serious crime
02:26 - 26.010 has just occurred,
02:26 - 27.957 if a person seen in
02:26 - 29.947 the vicinity of the crime
02:26 - 30.700 right after it's
02:26 - 31.716 occurred, occurred,
02:26 - 33.109 if it's believed that that
02:26 - 34.418 person has information
02:26 - 36.132 that can help the police
02:26 - 37.955 respond to that serious crime,
02:26 - 39.924 that the police are justified
02:26 - 41.700 in temporarily detaining that
02:26 - 43.561 person to see if that person
02:26 - 45.296 can provide information.
02:26 - 47.765 That's a whole second
02:26 - 48.856 framework under which we
02:26 - 50.201 need to consider this case.
02:26 - 51.735 And it's something that I've
02:26 - 53.404 addressed fully in my brief,
02:26 - 55.177 as I've said, cases from
02:26 - 56.974 throughout the country
02:26 - 59.253 have held that under these
02:26 - 00.812 particular circumstances,
02:27 - 01.746 because we need to remember here
02:27 - 03.686 that the officer in this case
02:27 - 05.650 isn't simply trying to play
02:27 - 06.488 detective and
02:27 - 07.819 solve a past crime.
02:27 - 09.787 She's not trying to, you know,
02:27 - 10.940 gain evidence that we can
02:27 - 12.490 use in some future prosecution.
02:27 - 14.070 We have a situation on
02:27 - 15.726 the street where someone
02:27 - 17.236 has potentially just been
02:27 - 18.830 shot, multiple gunshots.
02:27 - 21.192 The officer needs to
02:27 - 22.567 know how to respond.
02:27 - 23.858 Where are these people who are
02:27 - 25.303 who have potentially been shot?
02:27 - 28.072 So we're not discussing
02:27 - 29.714 the protocol or practice of
02:27 - 31.809 law enforcement's investigation.
02:27 - 33.511 We're discussing
02:27 - 35.523 what is the particularized
02:27 - 37.248 and objective basis.
02:27 - 39.750 Suspecting a particular person
02:27 - 41.707 has been stopped
02:27 - 43.321 for criminal activity.
02:27 - 45.256 That's the issue.
02:27 - 46.888 So you're trying say to
02:27 - 48.759 us, hey, guys, you know,
02:27 - 49.602 our officer has
02:27 - 50.528 a right to detain
02:27 - 51.188 because we need
02:27 - 52.096 to know witnesses.
02:27 - 53.172 That's police procedure
02:27 - 54.131 and investigation.
02:27 - 55.571 That's not the issue with
02:27 - 56.734 the Fourth Amendment.
02:27 - 58.035 The issue here is
02:27 - 58.973 you've articulate
02:27 - 00.438 what is the articulation
02:28 - 01.828 of the particularized
02:28 - 03.241 and objective basis
02:28 - 05.042 for stopping an individual
02:28 - 06.259 who is just running down
02:28 - 08.012 the street in the city at night,
02:28 - 11.482 which is called for?
02:28 - 12.416 I did it many a day.
02:28 - 14.819 Well, I think this is
02:28 - 15.967 this is a little bit different
02:28 - 17.255 because this is the only person
02:28 - 18.258 who's running from gunshots
02:28 - 19.323 that have just been fired.
02:28 - 19.747 He's running
02:28 - 20.558 from that direction.
02:28 - 21.058 But it's
02:28 - 21.587 the general
02:28 - 22.827 reasonableness standard
02:28 - 23.720 that's been applied
02:28 - 24.495 by this court.
02:28 - 25.663 Let's let's flesh that out.
02:28 - 27.865 When when you say
02:28 - 29.125 there's gunshots, one
02:28 - 31.135 alleged gunshots, the testimony
02:28 - 32.221 that the officer heard, what
02:28 - 33.371 he believed to be gunshots.
02:28 - 36.240 And we also. Know that
02:28 - 37.686 there was no indication
02:28 - 39.410 of shellings or anything,
02:28 - 41.145 no radio cool.
02:28 - 43.085 All the usual things
02:28 - 45.049 that come in, play
02:28 - 47.785 radio, call, man in the area.
02:28 - 49.320 We got that. Bell.
02:28 - 50.967 But I don't I don't mean
02:28 - 53.190 that we have better than that.
02:28 - 55.172 We have a highly trained
02:28 - 57.261 officer hears gunshots.
02:28 - 58.764 He goes in that direction
02:28 - 00.331 where the gunshots were fired.
02:29 - 01.982 He sees the defendant
02:29 - 04.201 running from that specific area.
02:29 - 05.705 He says to the defendant,
02:29 - 06.904 Why are you running?
02:29 - 07.829 The defendant says, I'm
02:29 - 08.940 running from the gunshot.
02:29 - 09.240 He said.
02:29 - 10.596 Because I heard he said,
02:29 - 11.976 quote, Because I heard
02:29 - 14.312 gunshots, unquote.
02:29 - 15.607 That's that's the that's
02:29 - 16.981 the suppression record.
02:29 - 18.916 That's right. You are. But that.
02:29 - 20.552 And that's the
02:29 - 21.585 court did suppress.
02:29 - 22.241 The trial court
02:29 - 23.187 did suppress it so.
02:29 - 24.532 That the trial court also
02:29 - 26.390 said it's not a high crime area.
02:29 - 28.674 Every area in the city, but
02:29 - 30.161 one outside of the traces of
02:29 - 31.095 the station.
02:29 - 31.729 What area?
02:29 - 33.181 And now we could talk in a
02:29 - 34.338 city that wealthiest
02:29 - 35.333 district around
02:29 - 36.567 what we've had
02:29 - 37.827 the last three weeks, we
02:29 - 39.270 had three brutal beating.
02:29 - 40.382 So this is a high crime
02:29 - 41.372 area where we sit.
02:29 - 42.740 So that's all nonsense
02:29 - 43.740 coming from Philadelphia,
02:29 - 44.642 you know, we all do.
02:29 - 45.943 That's even worse.
02:29 - 46.638 It's more bias
02:29 - 47.912 against our population.
02:29 - 48.913 Well, I say it because.
02:29 - 49.313 I say
02:29 - 50.577 because the Commonwealth
02:29 - 51.453 doesn't hesitate
02:29 - 52.450 to rely on that.
02:29 - 53.451 Oh, absolutely.
02:29 - 54.315 And they don't even
02:29 - 55.619 have that to rely on here.
02:29 - 56.675 So anyways, the
02:29 - 58.022 trial court suppressed
02:29 - 01.792 and I just was I jumped in
02:30 - 03.667 because the suppression record
02:30 - 05.629 was because I heard gunshots.
02:30 - 08.232 I'm sorry. Go ahead, sir.
02:30 - 09.199 That's I mean, what
02:30 - 10.601 you're saying is correct.
02:30 - 11.060 That's what the
02:30 - 11.669 trial court said.
02:30 - 12.798 But the trial court
02:30 - 13.771 was incorrect.
02:30 - 15.094 The witness, the
02:30 - 17.108 defendant specifically
02:30 - 18.123 said, I am running
02:30 - 19.276 from the gunshots.
02:30 - 20.644 I point that out in my brief.
02:30 - 21.317 And yes, sir, the
02:30 - 22.013 superior court.
02:30 - 23.347 Let's let's follow that.
02:30 - 25.549 I'm running from the gunshots.
02:30 - 27.128 How is that objectively
02:30 - 28.386 and particularly
02:30 - 29.826 significant that
02:30 - 31.088 he's the shooter?
02:30 - 34.358 I think and let's be honest,
02:30 - 35.627 the officer's in a
02:30 - 37.561 marked police car, right?
02:30 - 38.281 The officer is in a
02:30 - 39.063 marked police car.
02:30 - 40.765 So I'm a shooter.
02:30 - 41.609 I'm born and raised in
02:30 - 42.633 the city. I'm a shooter.
02:30 - 43.415 And I'm going to
02:30 - 44.568 run towards the cops.
02:30 - 45.369 Oh, you kidding?
02:30 - 46.069 I'm going to go.
02:30 - 46.971 Up the next alley.
02:30 - 48.172 Well, what happened?
02:30 - 48.842 What happened
02:30 - 50.007 here, Your Honor, is
02:30 - 51.271 the officer hears the gunshots.
02:30 - 52.476 He drives up to the corner.
02:30 - 53.611 He turns the corner,
02:30 - 54.480 and then he sees the
02:30 - 55.946 defendant run in his direction.
02:30 - 57.231 He asks the defendant,
02:30 - 58.149 why is he running?
02:30 - 58.756 Of course, the
02:30 - 59.917 defense not going to say
02:30 - 01.017 I'm I'm running because
02:31 - 02.286 I just shot four people.
02:31 - 03.709 He says, I'm running
02:31 - 04.889 from the gunshots.
02:31 - 06.135 So we have a very
02:31 - 08.292 factually intense case here
02:31 - 09.004 and we're going to
02:31 - 10.061 take a close look at it.
02:31 - 11.461 Does anyone have any
02:31 - 13.097 additional questions?
02:31 - 15.933 Yes, I do, counsel.
02:31 - 18.009 Just as the chief justice
02:31 - 19.303 said, we have a very fact
02:31 - 20.771 intensive case.
02:31 - 22.216 And in this case, the
02:31 - 24.241 suppression record included
02:31 - 26.043 the officer testifying.
02:31 - 27.645 I didn't know if he's injured.
02:31 - 29.346 He could have been shot in shot.
02:31 - 29.794 He could have
02:31 - 30.548 been a good witness
02:31 - 31.335 or possibly an
02:31 - 32.716 offender at that time.
02:31 - 34.923 How does that allow us to
02:31 - 37.421 invalidate the suppression
02:31 - 38.655 court's judgment that that
02:31 - 40.057 was not a valid Terry stop?
02:31 - 42.565 Well, I think that information
02:31 - 44.095 is sufficient for a valid
02:31 - 44.695 Terry stop.
02:31 - 46.242 But let's say let's just
02:31 - 48.332 pretend that the officer knows
02:31 - 49.914 for certain that this
02:31 - 52.203 defendant wasn't the gunman.
02:31 - 54.572 He would still be entitled under
02:31 - 55.889 the standard, the
02:31 - 56.974 reasonableness standard
02:31 - 58.054 that's been set up by the
02:31 - 59.376 United States Supreme Court.
02:31 - 00.360 That's been set
02:32 - 01.378 up by this court.
02:32 - 02.835 That's been followed by courts
02:32 - 04.315 from throughout the country.
02:32 - 04.582 That's
02:32 - 07.852 been followed by
02:32 - 09.101 Professor Lafave, who
02:32 - 10.554 we've all studied from
02:32 - 12.256 from when we were in law school,
02:32 - 13.628 that if there was a serious
02:32 - 15.126 crime that's just occurred,
02:32 - 17.216 if a person believed to
02:32 - 18.896 have have information
02:32 - 20.136 that will help the officers
02:32 - 21.632 respond to that serious crime,
02:32 - 23.661 that person can be temporarily
02:32 - 24.969 detained, if that's what.
02:32 - 26.023 The repeating were
02:32 - 27.338 repeating arguments.
02:32 - 28.613 You've already made. Up on
02:32 - 30.307 that, because I just don't quite
02:32 - 31.942 maybe I don't understand.
02:32 - 33.344 What cases are you relying on?
02:32 - 34.710 Aren't those cases that
02:32 - 36.280 deal with suspicion less
02:32 - 39.650 that are not?
02:32 - 41.519 They are systematic.
02:32 - 42.692 They are set up in
02:32 - 44.021 a fashion in which
02:32 - 46.346 there's no targeting
02:32 - 47.691 any one individual.
02:32 - 49.927 But many individuals are
02:32 - 51.261 are interrogated under
02:32 - 52.496 the circumstances.
02:32 - 54.567 Well, some of those
02:32 - 56.834 cases are that they are real.
02:32 - 58.035 No, no, they're not.
02:32 - 58.636 You are.
02:32 - 59.579 Many of the cases that I
02:32 - 00.905 cite that I discussed at length
02:33 - 03.340 are cases exactly like this.
02:33 - 05.125 I cite a case from the District
02:33 - 06.877 of Columbia Court of Appeals
02:33 - 08.100 almost exactly like
02:33 - 09.346 that. Gunshots are fired.
02:33 - 10.549 The officers go to where
02:33 - 11.582 the gunshots are fired.
02:33 - 12.793 They see people there.
02:33 - 14.084 They stop the people.
02:33 - 15.152 They don't know if the person
02:33 - 16.133 was the perpetrator
02:33 - 17.555 or a victim or a witness.
02:33 - 18.389 And the court
02:33 - 20.029 has specifically held that
02:33 - 21.692 the fact that the person
02:33 - 23.856 was a witness to a
02:33 - 25.930 potentially violent crime
02:33 - 27.192 that just occurred, that
02:33 - 28.532 the police are entitled
02:33 - 28.953 under the
02:33 - 30.167 reasonableness standard
02:33 - 31.143 to stop that person
02:33 - 32.403 for a brief detention.
02:33 - 33.763 I cite two cases from from
02:33 - 35.306 Oregon, a domestic violence
02:33 - 36.856 where the police
02:33 - 38.042 received a911 call.
02:33 - 39.743 They go to the
02:33 - 40.437 the home where the
02:33 - 41.312 call has been placed
02:33 - 42.102 from a man and
02:33 - 43.547 woman come to the door.
02:33 - 45.020 The woman has bruising
02:33 - 46.417 above her, her eye,
02:33 - 49.787 and the officers
02:33 - 50.735 take the man into custody
02:33 - 51.822 and they say to the woman,
02:33 - 53.042 come out of the
02:33 - 54.091 house. Stay right there.
02:33 - 55.359 We want to talk you.
02:33 - 56.348 The court finds that
02:33 - 57.361 she's been seized.
02:33 - 58.957 There's no suspicion that that
02:33 - 00.631 she's done anything improper.
02:34 - 01.893 But the courts have held
02:34 - 03.000 that in those situations.
02:34 - 03.234 When we're
02:34 - 04.586 responding to a serious
02:34 - 06.437 crime that has just occurred,
02:34 - 07.876 the police are entitled
02:34 - 08.939 to briefly detained
02:34 - 10.808 somebody to find information.
02:34 - 13.110 And again, this is a situation
02:34 - 14.441 we have multiple gunshots
02:34 - 15.322 being fired on a
02:34 - 16.547 Philadelphia street.
02:34 - 17.147 We have. A house.
02:34 - 18.215 We know we've heard it all.
02:34 - 19.610 So does anyone have
02:34 - 21.252 any other questions?
02:34 - 21.752 Okay.
02:34 - 25.923 Necessary in under. The
02:34 - 26.636 touchstone of the
02:34 - 27.458 Fourth Amendment.
02:34 - 28.926 The reasonableness standard.
02:34 - 29.927 Is it necessary that
02:34 - 31.480 the police officer, before
02:34 - 32.997 he stops an individual,
02:34 - 34.934 rule out their innocence
02:34 - 37.301 or prove their culpability?
02:34 - 38.401 Not at all, Your
02:34 - 39.303 Honor. Not at all.
02:34 - 40.297 Is their case law from the
02:34 - 41.238 United States Supreme.
02:34 - 42.673 Court case.
02:34 - 44.020 Okay, so this is a case
02:34 - 45.509 this is the same court,
02:34 - 46.615 if you think of Terry
02:34 - 47.611 versus Ohio itself.
02:34 - 49.680 So it's just in this case, the.
02:34 - 53.817 Person running.
02:34 - 55.386 Could have been a victim.
02:34 - 56.919 Or a witness or
02:34 - 58.889 a or the shooter.
02:34 - 01.127 Was it necessary for the
02:35 - 02.993 police officer to discern that?
02:35 - 04.328 And is that
02:35 - 06.481 a factual question out before
02:35 - 08.732 he asked the person to stop?
02:35 - 09.406 You know, Your Honor,
02:35 - 10.067 it wasn't necessary.
02:35 - 10.680 That's why we
02:35 - 11.702 the Terry standard,
02:35 - 12.469 so that the officer
02:35 - 13.859 can investigate to try to
02:35 - 15.272 find out what happened.
02:35 - 16.867 If you take the argument
02:35 - 18.275 of some of my colleagues.
02:35 - 20.010 That's been presented here
02:35 - 22.553 today, would have done
02:35 - 25.816 reasonable for the police.
02:35 - 26.681 Officer just to do
02:35 - 27.618 nothing when he's
02:35 - 28.886 the only person on the street
02:35 - 30.354 where you heard active shooter.
02:35 - 31.382 That's that's the
02:35 - 32.556 proverbial shrug,
02:35 - 33.542 shrugging of the
02:35 - 34.892 shoulder of the shoulders.
02:35 - 35.926 I mean, the officer here
02:35 - 37.802 did exactly what we as a
02:35 - 40.331 society want an officer to do.
02:35 - 41.466 He ran who drove to
02:35 - 42.866 the sound of the gun.
02:35 - 44.125 He was driving toward
02:35 - 45.469 the danger. Exactly.
02:35 - 46.870 And he attempted to find out
02:35 - 48.605 what happened.
02:35 - 49.775 Are there people down who
02:35 - 50.457 need immediate
02:35 - 51.442 medical attention?
02:35 - 52.375 Is there a gunman
02:35 - 53.944 who is still on the loose?
02:35 - 54.696 This happened right
02:35 - 55.512 near the elevator.
02:35 - 56.780 Charlie, as an experienced
02:35 - 58.370 police officer, he knows
02:35 - 00.317 what a gunshot sounds like.
02:36 - 00.951 It does.
02:36 - 02.144 And in fact, with the
02:36 - 03.821 fact that you heard active.
02:36 - 06.690 Gun. Shots.
02:36 - 14.365 Kind of trump the issue
02:36 - 17.601 of whether or not this was a
02:36 - 19.327 I can't think of the phrase
02:36 - 21.038 dangerous high crime area.
02:36 - 21.604 I mean, you knew
02:36 - 22.339 there was a crime.
02:36 - 23.107 That was committed.
02:36 - 23.407 Right.
02:36 - 25.109 That's why the high crime area
02:36 - 26.109 is sometimes relevant
02:36 - 27.277 because it can tell us
02:36 - 28.666 whether or not these actions
02:36 - 30.280 are related criminal activity.
02:36 - 32.416 Let's follow that logic.
02:36 - 34.039 If it's a high crime area and
02:36 - 35.686 this officer is experienced
02:36 - 36.969 and believes that a
02:36 - 38.822 high crime just occurred,
02:36 - 40.018 more likely than not, that
02:36 - 41.191 seasoned police officer
02:36 - 41.935 would be looking
02:36 - 42.893 for the individual
02:36 - 44.072 that is the recipient
02:36 - 45.162 of those bullets,
02:36 - 47.059 not someone who's running away
02:36 - 48.932 saying, I'm running from bullets
02:36 - 49.806 because they were
02:36 - 51.068 in a safe predicament.
02:36 - 53.158 Considering that there
02:36 - 55.239 was no one else on the street
02:36 - 56.940 as per the officer,
02:36 - 58.152 the only evidence that
02:36 - 59.443 this court can assume
02:36 - 00.839 is that this is the
02:37 - 02.112 only person running
02:37 - 03.802 which is consistent with
02:37 - 05.516 running from gunshots.
02:37 - 07.217 I guess it's up.
02:37 - 08.952 It's fact specific,
02:37 - 10.525 but there's what is the evidence
02:37 - 12.122 that this is a high crime area
02:37 - 13.726 or that a crime even
02:37 - 15.626 occurred because gunshots,
02:37 - 17.150 maybe somebody just had a
02:37 - 18.829 baby and they were celebrating
02:37 - 19.625 as often happens
02:37 - 20.597 in the city, but.
02:37 - 22.199 Somehow they celebrate. Yep.
02:37 - 23.208 I had a bullet through my
02:37 - 24.568 car window as a result of that.
02:37 - 26.236 And Your Honor, I would.
02:37 - 27.551 I would try not to have
02:37 - 29.006 a baby in Philadelphia.
02:37 - 29.735 I would think,
02:37 - 30.307 though, Your Honor,
02:37 - 31.957 that just discharging a firearm
02:37 - 33.577 repeatedly on a Philadelphia
02:37 - 35.686 street is a crime, regardless
02:37 - 37.381 of whether you start.
02:37 - 37.714 I would
02:37 - 39.683 think that discharging a firearm
02:37 - 41.552 repeatedly on a Philadelphia
02:37 - 43.053 street is a crime.
02:37 - 44.312 Oh, God. This of whether
02:37 - 45.489 or not you actually.
02:37 - 46.610 That's assuming
02:37 - 48.058 it was a gunshot.
02:37 - 49.400 Other than the evidence
02:37 - 51.061 of the officer's comments,
02:37 - 52.133 I believe it to be with
02:37 - 53.464 no other further evidence.
02:37 - 54.965 So the record speaks for itself.
02:37 - 55.741 And you would
02:37 - 57.267 agree with the officers
02:37 - 58.722 at the suppression hearing
02:37 - 00.370 that running from gunshots,
02:38 - 01.339 from the sound of
02:38 - 02.506 gunshots is, as he
02:38 - 03.707 said, quote, absolutely
02:38 - 05.142 normal behavior, unquote.
02:38 - 06.243 I do agree with that.
02:38 - 07.470 But also agree that I
02:38 - 08.779 would also point out
02:38 - 10.444 that this individual was
02:38 - 12.483 the only person in the area
02:38 - 13.517 which greatly enhanced
02:38 - 14.641 the probability that
02:38 - 15.619 he was involved
02:38 - 16.401 in the shooting,
02:38 - 17.454 that just occurred.
02:38 - 19.156 All right. Like we get it.
02:38 - 20.791 We get it. Thank you so much.
02:38 - 23.393 Good arguments.
02:38 - 24.595 Thank you.
02:38 - 25.843 The last argument of
02:38 - 27.431 the day is for the case
02:38 - 29.900 of many investors versus Tufano.
02:38 - 31.502 Many investors
02:38 - 32.790 sued the directors and
02:38 - 34.338 officers of the company,
02:38 - 35.561 the directors and
02:38 - 36.540 senior officers
02:38 - 38.235 that is alleging securities
02:38 - 40.143 fraud under the Pennsylvania
02:38 - 41.308 Securities Act and
02:38 - 43.347 fraudulent misrepresentation.
02:38 - 45.793 Mimi Investors claims arose
02:38 - 47.067 out of the purchase
02:38 - 48.085 of securities
02:38 - 49.662 of a privately held
02:38 - 51.355 startup tech company.
02:38 - 53.418 At a shareholder meeting,
02:38 - 54.858 the directors and officers
02:38 - 56.193 made statements
02:38 - 56.931 the amount of
02:38 - 58.328 interest and preorders
02:38 - 59.493 for space in the
02:38 - 01.098 company's new data center,
02:39 - 03.287 relying on the representations
02:39 - 04.935 of the directors and officers.
02:39 - 05.702 The company
02:39 - 07.583 purchased another $500,000
02:39 - 09.706 of the company's securities
02:39 - 11.860 in the trial court, the
02:39 - 13.477 directors and officers filed
02:39 - 14.829 preliminary objections,
02:39 - 16.680 which, under Pennsylvania law
02:39 - 18.115 test the sufficiency
02:39 - 19.249 of the complaint
02:39 - 21.758 the trial court overruled
02:39 - 23.253 essentially denied
02:39 - 24.999 the directors and officers
02:39 - 26.356 preliminary objections
02:39 - 28.280 and sent the parties into the
02:39 - 30.294 discovery phase of the case.
02:39 - 32.462 The Superior Court affirmed
02:39 - 33.729 the trial court's decision
02:39 - 35.265 on the preliminary objections
02:39 - 36.500 today.
02:39 - 37.701 The directors and officers
02:39 - 39.266 argue that center the
02:39 - 41.605 intent to deceive, manipulate
02:39 - 43.351 or defraud is required by
02:39 - 45.542 clear and convincing evidence
02:39 - 46.792 in connection with the
02:39 - 48.345 purchase and sale of securities
02:39 - 49.968 because such ill
02:39 - 51.381 intent is required.
02:39 - 52.749 Pennsylvania Laws
02:39 - 54.621 About How a plaintiff needs
02:39 - 56.587 to plead its case requires
02:39 - 58.310 sufficient particularity and
02:39 - 00.057 not just general pleading.
02:40 - 02.135 Federal law requires a
02:40 - 03.894 plaintiff to plead center
02:40 - 05.996 and the Pennsylvania Securities
02:40 - 06.945 was intended to be
02:40 - 08.398 uniform with federal law.
02:40 - 11.135 In response, many investors
02:40 - 13.236 argues that the plain text
02:40 - 15.126 of the Pennsylvania Securities
02:40 - 17.040 Act does not require center.
02:40 - 18.952 And even if it did, Mimi
02:40 - 20.911 pled enough in its complaint
02:40 - 22.720 to establish the directors
02:40 - 24.047 and officers intent.
02:40 - 26.350 The text of the Pennsylvania
02:40 - 27.951 statute is different from
02:40 - 29.720 that of the federal statute,
02:40 - 31.025 leaving out the words
02:40 - 32.856 manipulative and deceptive.
02:40 - 34.391 Let's head on into court
02:40 - 35.400 and hear the final
02:40 - 36.660 argument of the day.
02:40 - 37.961 Well, it's always good to
02:40 - 44.067 in this discretionary appeal,
02:40 - 45.569 the issue is presented
02:40 - 47.503 of whether the Securities
02:40 - 49.773 Act of Pennsylvania of 1972
02:40 - 51.997 requires the plaintiffs to
02:40 - 53.710 plead and prove Santore
02:40 - 55.786 in connection with an alleged
02:40 - 57.814 violation of Section 1401,
02:40 - 59.601 which regulates the
02:40 - 01.985 purchase and sale of securities
02:41 - 03.320 in the Commonwealth.
02:41 - 04.176 Also at issue is
02:41 - 05.489 whether the plaintiffs
02:41 - 07.729 sufficiently pled its claim
02:41 - 09.993 in the amended complaint.
02:41 - 12.329 Please proceed.
02:41 - 13.997 The morning.
02:41 - 15.777 Still, Madam Chief Justice
02:41 - 16.628 Todd and the
02:41 - 18.201 rest of the justices
02:41 - 18.959 of our Supreme
02:41 - 20.237 Court, along with Mr.
02:41 - 21.511 George Ferro, my
02:41 - 23.774 colleague, I am Joel EADS.
02:41 - 26.109 I represent
02:41 - 28.145 four gentlemen, Mr.
02:41 - 29.346 Dave Crocker, Mr.
02:41 - 30.781 Dennis Cronin, Mr.
02:41 - 32.883 Neil Mathison and Mr.
02:41 - 34.618 Paul Tufano,
02:41 - 36.399 all of whom have been for
02:41 - 37.876 seven or approaching
02:41 - 38.922 eight years.
02:41 - 40.806 Now, the unfortunate defendants
02:41 - 42.592 in a securities fraud case.
02:41 - 44.817 The court certified
02:41 - 45.696 a single issue,
02:41 - 47.302 whether for or one of the
02:41 - 48.932 Pennsylvania Securities
02:41 - 50.405 Act, requires the plaintiff
02:41 - 51.902 to plead and prove center
02:41 - 53.319 by clear and
02:41 - 54.604 convincing evidence.
02:41 - 56.324 And if so, did the
02:41 - 58.742 plaintiff, a family run
02:41 - 00.848 single purpose investment
02:42 - 02.813 vehicle, sufficiently plead
02:42 - 04.537 fraud in its amended complaint
02:42 - 06.516 filed at the close of discovery,
02:42 - 08.093 which we'll get back to, but I
02:42 - 09.853 think is an important book note
02:42 - 13.044 not bearing the headline
02:42 - 14.391 burying the leads.
02:42 - 15.375 The answer is yes,
02:42 - 16.660 I am sure is required
02:42 - 17.485 and it is actual
02:42 - 18.962 knowledge that is required
02:42 - 20.263 that is undisputed
02:42 - 22.099 Supreme Court evidence.
02:42 - 24.691 The answer to whether or not
02:42 - 26.136 they have pled the complaint
02:42 - 28.376 with particularity is no, they
02:42 - 30.340 haven't even come close.
02:42 - 31.464 And we're going to cite
02:42 - 32.809 authority from this court
02:42 - 34.544 that establishes that.
02:42 - 35.984 They haven't told you who
02:42 - 37.681 said what when they said it
02:42 - 38.523 and what they knew
02:42 - 39.483 when they said it?
02:42 - 41.736 All of the precursors
02:42 - 44.121 to securities fraud.
02:42 - 44.989 Let's start with
02:42 - 46.156 the statute itself.
02:42 - 47.620 The Statutory Destruction
02:42 - 49.226 Act admonishes us to look
02:42 - 50.549 at the language.
02:42 - 52.062 Language matters
02:42 - 57.033 here talked part four is 401.
02:42 - 59.202 And that part is entitled
02:42 - 00.136 Fraudulent and
02:43 - 01.905 Prohibited Transactions.
02:43 - 07.077 Where I'm from, fraud is the
02:43 - 10.113 Statutory Construction Act of
02:43 - 11.740 1924 tells us that while the
02:43 - 13.450 heading is not dispositive,
02:43 - 15.107 that is relevant to this
02:43 - 16.787 Court's consideration.
02:43 - 19.259 I pivot then to the Construction
02:43 - 21.057 Act 1921 B which says
02:43 - 22.841 we enforce the language
02:43 - 24.961 of the statute as written
02:43 - 28.231 that statute provides.
02:43 - 30.050 It is unlawful in connection
02:43 - 31.501 with the offer, sale
02:43 - 34.119 or purchase of a security to
02:43 - 36.573 employ any device scheme
02:43 - 39.338 or artifice to defraud, to
02:43 - 41.411 make untrue statements,
02:43 - 43.647 and to engage in any act
02:43 - 45.916 that would operate as a fraud
02:43 - 50.220 or a deceit on any person.
02:43 - 52.342 The language from the 1930s
02:43 - 54.324 might not sound to our ears
02:43 - 56.066 like the current status
02:43 - 58.061 of how we alleged fraud,
02:43 - 00.332 but nonetheless fraud
02:44 - 03.033 devices, schemes, artifices,
02:44 - 04.483 untrue statements which
02:44 - 06.403 reflect the speaker's knowledge
02:44 - 08.224 and the catch all
02:44 - 09.706 phrase which proscribed
02:44 - 12.016 that operate as
02:44 - 13.210 a fraud or deceit.
02:44 - 14.835 They mean fraud and fraud
02:44 - 16.746 requires science and fraud.
02:44 - 18.457 Science requires actual
02:44 - 20.217 knowledge in these cases,
02:44 - 23.486 reviewing identical language.
02:44 - 25.471 Identical language, except
02:44 - 26.890 for an Oxford comma.
02:44 - 27.618 But we can we
02:44 - 28.658 can talk about that,
02:44 - 31.294 if that is to be relevant.
02:44 - 33.230 Reviewing identical language.
02:44 - 34.594 The United States Supreme
02:44 - 35.388 Court in Ernst
02:44 - 36.533 versus Hochstetter
02:44 - 39.936 in 1976 looked this section
02:44 - 42.370 and it said that the
02:44 - 44.608 verbiage is the commonly
02:44 - 46.049 understood terminology
02:44 - 47.911 of intentional wrongdoing,
02:44 - 50.840 and it held that ten be,
02:44 - 53.383 which is the language
02:44 - 55.661 upon which four or one
02:44 - 58.588 draws requires the center.
02:44 - 59.423 The Securities and
02:44 - 00.423 Exchange Commission
02:45 - 02.027 invited the United States
02:45 - 03.526 Supreme Court to pass
02:45 - 06.997 the ten be
02:45 - 07.795 the statute
02:45 - 09.566 subsections A, B, and C.
02:45 - 11.361 The Supreme Court
02:45 - 12.636 declined to do so.
02:45 - 15.038 The Supreme Court noted that
02:45 - 19.003 the science
02:45 - 20.644 requirement I'm sorry that
02:45 - 22.131 the rulemaking authority
02:45 - 23.580 that the SCC employed
02:45 - 26.182 was to create a statute that
02:45 - 28.885 that addressed intentional
02:45 - 33.924 conduct, attempting to create
02:45 - 39.863 intentional harm counsel. Yes.
02:45 - 43.066 Are we looking at Section 401
02:45 - 44.559 sales and practices and
02:45 - 46.469 in particular subsection B?
02:45 - 50.140 So the plaintiff
02:45 - 53.610 have hung their hat on 401b
02:45 - 54.778 in an effort to
02:45 - 55.779 say the language,
02:45 - 56.504 there is not as
02:45 - 57.647 clear as four or one.
02:45 - 58.751 A Certainly not
02:45 - 00.250 as clear as title.
02:46 - 03.386 Fraudulent. But
02:46 - 06.315 the statute was
02:46 - 08.291 drawn from Section
02:46 - 09.814 one on one of the Uniform
02:46 - 11.361 Securities Act in 1956,
02:46 - 14.241 which its official comment
02:46 - 17.033 drew from SCC Rule ten B five.
02:46 - 17.500 But don't
02:46 - 19.099 we have to look at the language
02:46 - 20.670 in the Pennsylvania statute?
02:46 - 22.038 Of course.
02:46 - 23.413 401 subsection.
02:46 - 25.275 B of course we do.
02:46 - 26.864 And there's nothing in
02:46 - 29.079 subsection B that has a C entry
02:46 - 33.149 requirement, is there?
02:46 - 34.184 Well, two things.
02:46 - 34.952 One, to make an
02:46 - 35.952 untrue statement,
02:46 - 37.039 I think reflects upon
02:46 - 38.254 the speaker's intent.
02:46 - 39.807 If I'm saying something
02:46 - 41.624 untrue, I know it's untrue.
02:46 - 43.526 Doesn't say it erroneous.
02:46 - 44.748 Not necessarily true. I
02:46 - 46.262 mean, that's not accurate.
02:46 - 46.830 I mean, you could
02:46 - 47.840 make a statement that
02:46 - 49.165 turns out to be not true,
02:46 - 50.935 but you didn't know it was
02:46 - 53.003 untrue when you were making.
02:46 - 54.971 And I think the answer is that
02:46 - 57.774 the US Supreme Court, in
02:46 - 59.403 looking at identical language,
02:46 - 01.111 was invited to pass this and.
02:47 - 03.051 It said No ten B five
02:47 - 05.015 and its subsections
02:47 - 07.215 are the creation of the
02:47 - 08.785 SCC rulemaking authority
02:47 - 09.468 to prescribe
02:47 - 10.754 intentional conduct.
02:47 - 12.302 But how does that get us around
02:47 - 13.823 the language of our statute?
02:47 - 14.429 Isn't that the
02:47 - 15.325 first thing we do?
02:47 - 16.014 We look to the
02:47 - 17.327 language of our statute.
02:47 - 19.249 If there is no ambiguity
02:47 - 21.598 in the discussion analysis.
02:47 - 24.374 Yes. But then this
02:47 - 27.470 court would find itself
02:47 - 28.964 in the unique situation of
02:47 - 30.540 taking identical language
02:47 - 31.540 applied by a United
02:47 - 32.776 States Supreme Court.
02:47 - 34.538 And every circuit court
02:47 - 36.079 of appeal at every U.S.
02:47 - 37.241 district court and
02:47 - 38.948 applying it differently.
02:47 - 40.571 Could I pursue that
02:47 - 42.218 for a moment just
02:47 - 43.486 because
02:47 - 48.825 in error in 1980,
02:47 - 52.562 the SCOTUS looked at
02:47 - 54.338 the 33 Act Section 17
02:47 - 56.399 with the same language,
02:47 - 58.293 same language as our statute
02:47 - 00.003 speaking the plain language
02:48 - 02.572 and and held
02:48 - 03.938 the two subsections do
02:48 - 05.642 not require science here.
02:48 - 08.203 So why would the same plain
02:48 - 10.480 language analysis not apply?
02:48 - 11.054 I mean, aren't you
02:48 - 11.848 just putting the bunny
02:48 - 13.357 in the hat that federal
02:48 - 15.552 statute applies rather than the
02:48 - 17.576 the 33 Act with this identical
02:48 - 19.122 language to our statute?
02:48 - 20.056 Yeah.
02:48 - 21.923 And this is quite a rabbit
02:48 - 23.159 hole that we can go down,
02:48 - 24.494 but it goes like this.
02:48 - 26.432 The 1933 Act, unsurprisingly,
02:48 - 28.731 was written before the 1934 Act.
02:48 - 31.356 What the Pennsylvania Supreme,
02:48 - 33.403 the General Assembly adopted
02:48 - 35.159 was the Uniform
02:48 - 37.574 Securities Act, Section 101.
02:48 - 39.385 The official comment
02:48 - 40.777 to the Uniform Securities
02:48 - 42.643 Act says, We adopted ten
02:48 - 45.081 B five as the SCC interpreted
02:48 - 46.390 under its rulemaking
02:48 - 48.318 authority under the 34 Act.
02:48 - 51.354 Now it is
02:48 - 52.989 a mystery to me
02:48 - 56.693 why the drafters of the 34 Act
02:48 - 57.642 because there are
02:48 - 58.728 some differences,
02:48 - 00.831 why the drafters of the 34 Act
02:49 - 03.099 grabbed the language from 17 a
02:49 - 05.936 put it into use this
02:49 - 07.504 rulemaking authority
02:49 - 10.359 to create a rule that requires
02:49 - 13.143 center uniformly agreed and
02:49 - 16.167 yet allow under the 33
02:49 - 18.982 Act a different interpretation.
02:49 - 20.617 Under two subparts
02:49 - 22.267 there may be some answer
02:49 - 24.287 in the fact that the 33 Act
02:49 - 27.056 regulates IPOs.
02:49 - 30.071 The offer of initial securities
02:49 - 32.328 to the marketplace 34
02:49 - 33.756 regulates the
02:49 - 35.565 exchange place itself,
02:49 - 38.768 offers and sales.
02:49 - 41.838 It may be that
02:49 - 44.674 the 33 Act 17
02:49 - 45.733 does not provide for a
02:49 - 47.010 private right of action.
02:49 - 49.431 If you look at all of the cases
02:49 - 51.181 cited by the Department at page
02:49 - 53.277 ten of their brief, they're
02:49 - 55.084 all versus SCC or SCC
02:49 - 57.420 versus an independent
02:49 - 00.123 citizen.
02:50 - 02.075 There is no private
02:50 - 03.126 right of action.
02:50 - 05.174 What happens then is
02:50 - 07.864 that we have one statute
02:50 - 09.366 that has language
02:50 - 10.934 similar to both statutes,
02:50 - 13.127 but the federal statutes
02:50 - 14.671 have been organized.
02:50 - 16.969 No private right of action,
02:50 - 18.241 private right of action.
02:50 - 19.726 We adopted the private
02:50 - 21.411 right of action verbatim.
02:50 - 23.727 We did not adopt 17
02:50 - 26.382 verbatim industries where.
02:50 - 27.784 It is.
02:50 - 28.818 The private rate of action.
02:50 - 29.818 Thing is, is really
02:50 - 31.054 my jumping off point.
02:50 - 32.594 Are you familiar with
02:50 - 34.057 Section five or one
02:50 - 35.592 of the SEC?
02:50 - 36.684 Pennsylvania Securities
02:50 - 38.328 Officer? Why didn't you cite it?
02:50 - 40.597 Because that's to me,
02:50 - 41.789 that's the provision
02:50 - 43.366 that creates the private
02:50 - 44.255 right of action
02:50 - 45.468 under Pennsylvania
02:50 - 46.264 law for Section
02:50 - 47.570 four or one violation.
02:50 - 48.471 And it specifically,
02:50 - 49.919 at least as I can tell,
02:50 - 51.708 addresses your issue here.
02:50 - 54.811 But it puts the burden on you
02:50 - 56.766 to prove that it was a
02:50 - 59.282 knowing, untrue statement.
02:50 - 00.291 I mean, it creates
02:51 - 01.551 a private it creates
02:51 - 02.825 civil liability for
02:51 - 04.354 the violation of 401.
02:51 - 05.822 So you have to go to it
02:51 - 08.563 if you're to bring a for a one
02:51 - 11.327 section and it provides that
02:51 - 14.859 basically in light of the
02:51 - 16.833 circumstances that the purchaser
02:51 - 17.833 not knowing of
02:51 - 19.435 the truth or mission
02:51 - 20.303 and who decides to stay
02:51 - 21.392 in the burden of proof
02:51 - 22.505 that he did not know
02:51 - 23.234 and the exercise
02:51 - 24.173 of reasonable care
02:51 - 25.104 could not have known
02:51 - 26.342 the untruth or omission.
02:51 - 27.824 That's your burden
02:51 - 28.778 to prove that.
02:51 - 31.447 So why are we talking about
02:51 - 32.497 what they had to do
02:51 - 34.017 with regard to say, enter
02:51 - 35.318 when it seems like 501
02:51 - 37.120 says you file an affirmative
02:51 - 39.352 defense of it not being
02:51 - 42.292 knowing were not recklessly.
02:51 - 45.570 So because I'm a defendant
02:51 - 48.264 and I am defending against
02:51 - 49.197 claims claims
02:51 - 51.100 initially pled as fraud.
02:51 - 53.507 The securities common law fraud
02:51 - 55.738 we did three years of discovery
02:51 - 57.711 they can't get close to
02:51 - 59.142 fraud versus my guys
02:52 - 01.366 so what they do they sought
02:52 - 02.645 to amend the complaint.
02:52 - 05.581 The trial court gave them leave
02:52 - 06.955 and they now see
02:52 - 08.785 is not on for a one
02:52 - 10.315 which is the only statute
02:52 - 11.654 they were sued under.
02:52 - 13.457 They seized on for a1b,
02:52 - 15.758 and they're trying to dance
02:52 - 17.237 on the head of a pin
02:52 - 19.262 and tell you that for a1b
02:52 - 21.785 notwithstanding,
02:52 - 22.899 it's in subpart four.
02:52 - 23.713 Fraudulent and
02:52 - 25.201 prohibited transactions
02:52 - 27.236 does not require center.
02:52 - 28.414 But it says fraudulent
02:52 - 29.238 and progress.
02:52 - 29.946 Since you want
02:52 - 31.140 to rest on the title,
02:52 - 32.575 the fact that it's fraudulent
02:52 - 33.509 and prohibited
02:52 - 35.211 practices would suggest
02:52 - 37.168 to the extent the
02:52 - 38.581 titles matter at all,
02:52 - 39.752 that there are fraudulent
02:52 - 41.184 practices and then there are
02:52 - 42.685 other prohibited practices
02:52 - 43.340 that might not
02:52 - 44.687 necessarily rise to fraud.
02:52 - 46.889 When you combine that fact
02:52 - 48.239 with the fact that for one B
02:52 - 49.759 does not have the word fraud,
02:52 - 50.915 net, doesn't that
02:52 - 52.395 argue the other way?
02:52 - 54.864 Well, I.
02:52 - 56.177 I took fraudulent and
02:52 - 57.767 prohibited transactions
02:52 - 00.670 as adjectives
02:53 - 02.748 modifying transactions
02:53 - 05.041 that every transaction
02:53 - 06.174 fraudulent every
02:53 - 07.610 transaction prohibited.
02:53 - 10.062 And then I look at the statute
02:53 - 12.382 and for one sees the catch all
02:53 - 15.050 and for one see the catch all
02:53 - 17.353 says to engage in any practice.
02:53 - 18.654 Of course, a business
02:53 - 19.870 which operates would
02:53 - 21.724 operate as a fraud or deceit
02:53 - 24.594 upon any person.
02:53 - 25.675 And there's a body
02:53 - 26.963 of federal case law
02:53 - 28.877 which is well-developed
02:53 - 31.401 that that in effect statute.
02:53 - 35.138 But it is to
02:53 - 38.641 act as a catch all.
02:53 - 40.158 We all know that in 29
02:53 - 41.978 the stock market crashed
02:53 - 43.668 the 33 and 34 acts
02:53 - 45.148 were in response
02:53 - 47.048 to the mayhem that
02:53 - 49.485 ensued to bring control,
02:53 - 50.727 engender confidence
02:53 - 52.588 in our securities markets.
02:53 - 55.175 The statutes, therefore,
02:53 - 57.293 were written broad because go
02:53 - 59.162 figure there was no end
02:53 - 01.464 to the schemes, artifices,
02:54 - 04.420 devices that were being
02:54 - 06.903 employed to defraud Americans
02:54 - 08.198 in connection the sale
02:54 - 09.705 or purchase of a security.
02:54 - 11.869 So while there's
02:54 - 13.342 very scant legislative
02:54 - 16.112 history about Section ten,
02:54 - 18.268 we that it was
02:54 - 19.615 to prescribe fraud
02:54 - 21.431 and we know that the statute
02:54 - 23.186 was in response to the never
02:54 - 25.061 ending schemes that
02:54 - 27.557 existed and had created
02:54 - 30.493 or had reduced
02:54 - 31.805 confidence in the
02:54 - 33.763 securities marketplace.
02:54 - 35.337 So the short
02:54 - 37.400 answer is A, B and C
02:54 - 39.892 are trying to capture everything
02:54 - 41.370 that can possibly happen
02:54 - 42.475 in this world to
02:54 - 44.373 prevent fraud in the sale
02:54 - 45.887 or purchase of the
02:54 - 47.510 Security Council.
02:54 - 50.613 Back to my original question
02:54 - 51.761 in conjunction with
02:54 - 53.483 Justice brought six point.
02:54 - 55.862 If we look at the statute,
02:54 - 57.587 it would appear that
02:54 - 59.237 in answer to the question
02:54 - 00.923 that we accepted for review,
02:55 - 03.422 there's no pleading of C
02:55 - 05.895 center required under 41b.
02:55 - 08.731 However, you can defend
02:55 - 11.405 pursuant to another provision
02:55 - 13.202 of the statute by asserting
02:55 - 14.317 that you didn't know,
02:55 - 15.671 nor could you have not.
02:55 - 17.989 So why doesn't that
02:55 - 20.743 just resolve the entirety
02:55 - 22.433 of the manner in which
02:55 - 24.380 this type of securities
02:55 - 26.604 action has to proceed
02:55 - 27.817 without looking,
02:55 - 29.241 without looking to the
02:55 - 30.820 Act 33, the Act of 34?
02:55 - 32.321 We just do what
02:55 - 33.923 our Statutory Construction Act
02:55 - 35.696 says and look at the
02:55 - 37.760 words of the statute.
02:55 - 39.161 The answer is because
02:55 - 45.601 the plaintiffs
02:55 - 50.540 sued us for securities fraud.
02:55 - 51.910 They didn't initially
02:55 - 53.142 tell us A, B or C,
02:55 - 56.045 it was a securities fraud
02:55 - 57.660 when they couldn't get, they
02:55 - 59.081 created a creative argument
02:55 - 00.249 because no one has advanced
02:56 - 01.747 this argument in the
02:56 - 03.419 Commonwealth before,
02:56 - 04.331 that they're only
02:56 - 05.321 trying to sue us
02:56 - 09.392 for material misrepresentation.
02:56 - 10.560 The question I think
02:56 - 11.804 respectfully puts the cart
02:56 - 13.362 a little bit before the horse,
02:56 - 14.956 which is I have law
02:56 - 16.532 from the United States
02:56 - 17.708 Supreme Court saying
02:56 - 19.502 you can't pass this statute.
02:56 - 21.013 It prescribes fraud,
02:56 - 22.471 whether it's A, B or C.
02:56 - 24.574 It is our staff to do that.
02:56 - 25.892 I mean, I don't
02:56 - 27.944 I'm certain at a loss
02:56 - 29.098 why it's wrong for the
02:56 - 30.913 plaintiff to come forward to say
02:56 - 32.682 I'm bringing my cause of action.
02:56 - 34.050 And therefore, when B.
02:56 - 38.888 Because Your Honor, we adopted
02:56 - 40.597 the 56 Uniform Securities
02:56 - 42.124 Act that is accepted
02:56 - 45.661 56 Securities Act, Section 101
02:56 - 47.662 says it adopt the rule
02:56 - 49.799 the language of ten B five.
02:56 - 51.298 There's a dissonance I
02:56 - 52.969 understand where you're going
02:56 - 54.927 because 17 the 33 act
02:56 - 57.940 section 17 you have attorneys,
02:56 - 00.298 the SCC who have interpreted
02:57 - 02.712 it be to apply to negligence.
02:57 - 04.985 But we've made a policy
02:57 - 06.189 decision over the
02:57 - 07.617 course of 90 years
02:57 - 09.606 that when it comes to
02:57 - 11.487 a private right of action,
02:57 - 14.004 whether A, B or C,
02:57 - 16.759 it's proscribing conduct.
02:57 - 17.827 Well, me,
02:57 - 19.629 I don't I'm not sure I disagree.
02:57 - 21.197 With you on that.
02:57 - 22.520 Where I'm where
02:57 - 23.466 I'm struggling with
02:57 - 26.802 is your your your your demand.
02:57 - 28.537 And again, it seems that
02:57 - 29.262 there are some court
02:57 - 30.306 decisions in favor of you.
02:57 - 31.056 If we go down this
02:57 - 32.041 rabbit hole of the 33
02:57 - 34.143 and 34 act and ten B, whatever
02:57 - 37.580 your your command, that
02:57 - 40.750 because you can't be held liable
02:57 - 44.987 for mere negligent untruths.
02:57 - 47.890 They have to plead
02:57 - 49.444 an affirmative knowing
02:57 - 51.093 untruth when it seems
02:57 - 52.911 you can read for a
02:57 - 55.364 one and 501 in harmony
02:57 - 58.239 to say all they have to plead is
02:57 - 00.670 an untrue statement under 4a1.
02:58 - 02.057 But in order for
02:58 - 03.305 them to get a court,
02:58 - 04.377 you actually should have
02:58 - 05.241 sued under five. A one?
02:58 - 06.275 Not for a one.
02:58 - 08.477 But in order for you to prevail
02:58 - 10.846 on your 501 claim to have civil
02:58 - 12.372 liability against the
02:58 - 14.216 person who violated 4a1
02:58 - 17.520 you, meaning the defendant,
02:58 - 18.659 have the opportunity to
02:58 - 20.122 prove that it wasn't fraud,
02:58 - 22.190 that it wasn't knowing,
02:58 - 24.026 that it wasn't reckless.
02:58 - 26.096 And that's I mean, the statute
02:58 - 28.030 says it's your burden of proof.
02:58 - 30.073 So so I go back to my
02:58 - 31.934 question, which you did
02:58 - 33.803 a really good job of dodging.
02:58 - 35.037 How do you apply?
02:58 - 35.976 How does when does.
02:58 - 37.039 518 come into play?
02:58 - 40.810 So that's not the question
02:58 - 41.553 that the court
02:58 - 42.912 certified and I am not.
02:58 - 43.841 Sure it is because we
02:58 - 45.014 asked what the question is,
02:58 - 46.760 what has to be pleaded, what
02:58 - 48.718 they what they have to plead.
02:58 - 49.916 But if the burden
02:58 - 51.053 of proof is on you,
02:58 - 52.197 then that sort of
02:58 - 53.322 answers the. Question.
02:58 - 54.351 They don't have the
02:58 - 55.458 burden of proving.
02:58 - 57.259 I mean, it's possible
02:58 - 59.228 that defendant could not
02:58 - 00.718 raise an affirmative,
02:59 - 02.298 affirmative defense available to
02:59 - 05.334 you under 51a and they will.
02:59 - 07.369 But all they have to
02:59 - 08.458 plead is a violation
02:59 - 09.405 of four of one.
02:59 - 12.663 And if if I'm reading these two,
02:59 - 14.744 whether it's the same statute,
02:59 - 17.313 the two sections together
02:59 - 18.235 that answers the
02:59 - 19.648 question that we took,
02:59 - 21.096 which is to plead a cause
02:59 - 22.685 of action under four one.
02:59 - 25.154 You do not have to plead fraud.
02:59 - 27.368 But to prevail, the
02:59 - 29.024 Court has to consider
02:59 - 30.176 the defendant's
02:59 - 31.861 affirmative defense of not
02:59 - 33.674 knowing untruth or
02:59 - 35.464 omission or reckless.
02:59 - 36.925 Why isn't that the
02:59 - 37.800 proper construction
02:59 - 41.537 of both sections together?
02:59 - 43.906 Maybe ultimately it is.
02:59 - 46.213 But under 40 over 40 years
02:59 - 48.544 of unbroken law applying
02:59 - 51.505 the Pennsylvania Securities
02:59 - 55.151 Act, Santore has been required.
02:59 - 55.818 When you look
02:59 - 56.938 at the history of the
02:59 - 58.621 statute, where it comes from,
02:59 - 59.955 the Supreme Court
03:00 - 03.793 saying is require
03:00 - 06.462 it became such a problem,
03:00 - 07.438 class action,
03:00 - 09.198 securities litigation
03:00 - 11.433 that Congress
03:00 - 13.012 had adopting assuming
03:00 - 15.070 working within the rubric
03:00 - 17.070 that ten be required saying
03:00 - 19.542 under every statutory provision
03:00 - 21.470 doubled down and
03:00 - 22.978 it passed the Private
03:00 - 24.635 Securities Litigation
03:00 - 26.315 Reform Act in 1995.
03:00 - 27.817 What did that do?
03:00 - 28.518 Well, it tried to
03:00 - 29.285 address the ills
03:00 - 30.263 that were the
03:00 - 32.254 Securities Class Action.
03:00 - 33.937 Relevant here is
03:00 - 36.492 that it took the fraud
03:00 - 38.076 pleading requirement
03:00 - 39.528 eight in the federal court
03:00 - 42.631 and heightened it and required
03:00 - 45.189 that the inference of
03:00 - 47.736 fraud be at least as strong
03:00 - 49.388 as the inference of innocence
03:00 - 51.006 for whatever it looks like
03:00 - 52.296 that is not fraud
03:00 - 53.609 in those cases.
03:00 - 58.380 So when I'm sued under for a1a
03:00 - 00.249 or for a one and
03:01 - 02.251 I'm defending client
03:01 - 04.111 and the landscape
03:01 - 06.388 as I know it is center
03:01 - 07.688 and I defend the
03:01 - 09.091 case for three years
03:01 - 12.037 under that landscape and
03:01 - 14.964 against that burden of proof.
03:01 - 15.743 And then they
03:01 - 17.032 seek leave to amend
03:01 - 18.153 and ask this court
03:01 - 19.235 to do something
03:01 - 20.377 that no Pennsylvania
03:01 - 21.370 court has done,
03:01 - 22.860 which is remove
03:01 - 24.506 their heavy burden,
03:01 - 25.529 which is not only, by the
03:01 - 26.742 way, an evidentiary burden,
03:01 - 28.399 but will be a burden at
03:01 - 30.012 trial, clear and convincing
03:01 - 31.313 evidence instead of just
03:01 - 33.482 the negligence standard,
03:01 - 36.285 a preponderance of the evidence,
03:01 - 38.454 they threw a curve ball
03:01 - 39.665 that is not recognized
03:01 - 40.456 by any court
03:01 - 43.052 that changes the
03:01 - 45.060 landscape for the defense,
03:01 - 47.133 changes the notion
03:01 - 48.998 of what is securities
03:01 - 51.299 fraud to the practitioner
03:01 - 53.068 in this state and
03:01 - 57.339 we saw the interlocutory appeal.
03:01 - 58.093 The Superior
03:01 - 59.508 Court gave it to us.
03:01 - 00.843 They didn't answer the question.
03:02 - 03.078 So we came to this court.
03:02 - 04.546 Maybe works out that it
03:02 - 06.682 becomes my affirmative defense.
03:02 - 07.659 And this court will
03:02 - 08.817 choose to be at odds
03:02 - 09.948 with all federal courts
03:02 - 11.053 applying ten b five.
03:02 - 13.290 But I think and I hope
03:02 - 15.024 and my gentleman hope
03:02 - 16.474 that more likely
03:02 - 18.060 it's a fraud statute.
03:02 - 20.062 Fraud means fraud.
03:02 - 21.505 They have to prove they
03:02 - 22.743 intended to defraud
03:02 - 23.732 these people.
03:02 - 25.267 You look at their complaint,
03:02 - 26.655 we all know they don't
03:02 - 28.704 even get close to get counsel.
03:02 - 29.972 The fraud means fraud.
03:02 - 31.528 So why not just get the General
03:02 - 33.108 Assembly to simply throw word
03:02 - 34.543 fraud into be and we're done.
03:02 - 36.512 I mean, if it's so
03:02 - 38.280 clear, why can't you just tell
03:02 - 39.257 the legislature, look,
03:02 - 40.482 you folks have messed up.
03:02 - 41.645 You need the word
03:02 - 43.385 fraud in there and and,
03:02 - 45.120 you know,
03:02 - 46.589 why wouldn't that
03:02 - 47.656 be the solution here?
03:02 - 49.024 So so great question.
03:02 - 50.953 There is law from this
03:02 - 52.995 court that the courts
03:02 - 54.675 I'm sorry, the General Assembly
03:02 - 56.131 is presumed to understand
03:02 - 57.164 how the courts are
03:02 - 58.801 interpreting its statutes.
03:03 - 01.044 There have been over
03:03 - 02.438 40 years of federal courts
03:03 - 03.089 looking at the
03:03 - 04.473 Pennsylvania Securities Act
03:03 - 05.805 unanimously requiring
03:03 - 07.276 saying federal courts.
03:03 - 08.344 Yes, sir.
03:03 - 09.015 But that's only
03:03 - 10.212 because our state courts
03:03 - 11.280 have not taken it up.
03:03 - 12.548 I don't know why they counsel.
03:03 - 14.125 The presumption is that the
03:03 - 15.784 General Assembly knows how
03:03 - 16.920 this court is
03:03 - 18.754 interpreting a statute.
03:03 - 20.153 This is a case of first
03:03 - 21.323 impression, correct?
03:03 - 22.691 This is a case.
03:03 - 24.565 Presumption at all about what
03:03 - 26.462 the General Assembly thinks
03:03 - 28.063 this court has done.
03:03 - 30.790 Well, the authority that
03:03 - 31.934 I cited in my reply brief,
03:03 - 33.335 I understood to apply
03:03 - 35.591 to the appellate courts
03:03 - 37.773 of the Commonwealth.
03:03 - 39.300 But I think if the court is
03:03 - 40.909 done with those questions,
03:03 - 42.044 we can pivot
03:03 - 43.406 to the amended complaint if
03:03 - 45.047 you care to take a look at it.
03:03 - 47.149 Okay.
03:03 - 52.654 So in conclusion, the department
03:03 - 54.596 for one requires I enter
03:03 - 56.225 under every subsection.
03:03 - 57.420 They haven't come
03:03 - 58.794 close to pleading it.
03:03 - 00.645 This is their attempt in
03:04 - 02.364 an amended complaint
03:04 - 04.033 at the close of fact discovery
03:04 - 05.146 that was lengthy and
03:04 - 06.902 expensive and time consuming.
03:04 - 08.704 They still didn't get there.
03:04 - 09.837 In fact, they changed
03:04 - 10.939 very of their fact
03:04 - 13.709 in support of their claims.
03:04 - 14.977 For these reasons,
03:04 - 16.178 the complaint should be
03:04 - 17.613 dismissed with prejudice.
03:04 - 18.880 They've had their shot.
03:04 - 20.282 The litigation is over.
03:04 - 21.358 Thank you very
03:04 - 22.718 much. Thank you, Mr..
03:04 - 32.361 Mr.. Lubell.
03:04 - 32.995 Good morning,
03:04 - 34.068 Madam Chief Justice and
03:04 - 34.845 Justices of this
03:04 - 35.731 Honorable Court.
03:04 - 36.957 My name is Christopher
03:04 - 37.699 Level and I'm here
03:04 - 40.135 on behalf of Mimi Investors LLC.
03:04 - 41.729 The other credibly we now
03:04 - 43.539 passed into the afternoon.
03:04 - 45.707 Well.
03:04 - 47.109 WOMAN Good afternoon.
03:04 - 48.471 I'm here with my
03:04 - 51.146 co-counsel, Jeffrey Kurtzman.
03:04 - 52.719 Mimi Investors, LLC respectfully
03:04 - 54.216 asked that this court affirm
03:04 - 55.795 the Superior Court's decision
03:04 - 57.453 and conclude that as written
03:04 - 59.386 Section 401b of the
03:04 - 01.256 Pennsylvania Securities
03:05 - 03.225 Act does not require a party
03:05 - 05.360 to plead and proofs I enter.
03:05 - 07.415 Appellants urged
03:05 - 08.430 this court to adopt
03:05 - 09.909 an interpretation of the statute
03:05 - 11.366 as they wish it were written.
03:05 - 12.902 The statute is not,
03:05 - 14.403 however, written in a way
03:05 - 15.197 that supports
03:05 - 16.572 this interpretation.
03:05 - 17.973 The plain
03:05 - 19.647 language of the statute simply
03:05 - 21.176 does not contain language
03:05 - 22.417 that would bear the
03:05 - 23.946 imposition of Santer.
03:05 - 25.375 Now, this Court's been
03:05 - 26.949 given two competing narratives
03:05 - 28.880 about what the true
03:05 - 31.687 antecedent of Section one B is.
03:05 - 33.422 On one hand,
03:05 - 34.740 we have the appellants who
03:05 - 36.492 argue that the proper antecedent
03:05 - 39.026 of the p the PSA is this
03:05 - 41.797 the SCC Rule ten B five,
03:05 - 43.111 which is derived, of
03:05 - 44.933 course, from the 1934 Act,
03:05 - 47.373 which is in turn derived
03:05 - 49.138 from section ten B of that.
03:05 - 50.572 And the line of federal cases
03:05 - 52.034 that come from Ernst and
03:05 - 53.642 Ernst versus Hoc Salter.
03:05 - 54.807 And that should
03:05 - 56.545 control the outcome.
03:05 - 58.274 Of the section
03:05 - 59.581 of the fascinating
03:05 - 02.484 stack down in this class.
03:06 - 06.855 This actually sounds to show
03:06 - 08.712 maybe we are follow
03:06 - 10.159 the same two back
03:06 - 14.245 and forth interpretation
03:06 - 15.364 of the industry
03:06 - 17.432 related
03:06 - 21.436 yes section one is
03:06 - 24.439 thank you.
03:06 - 25.274 Yeah.
03:06 - 26.560 Well two comments
03:06 - 28.210 in response to that.
03:06 - 32.381 First it's there are differing
03:06 - 33.802 holdings from the
03:06 - 34.883 Supreme Court about what
03:06 - 36.141 the federal securities
03:06 - 37.019 laws require.
03:06 - 39.651 As was referenced earlier,
03:06 - 41.790 under the 33 Act Section 17,
03:06 - 44.574 there is not a requirement
03:06 - 46.328 of center where in the 34 Act
03:06 - 50.132 ten v five rule, there is.
03:06 - 52.359 Now, other courts in this
03:06 - 55.237 country have faced this issue.
03:06 - 57.306 The Supreme Court of Washington
03:06 - 58.135 has dealt with
03:06 - 59.408 this precise issue.
03:06 - 00.781 And looking at the
03:07 - 03.178 language that you just stated
03:07 - 04.442 about coordinating
03:07 - 06.014 with federal policy,
03:07 - 07.804 they concluded that
03:07 - 09.618 coordination doesn't mean
03:07 - 11.386 precise limitation.
03:07 - 12.628 It doesn't mean you
03:07 - 14.423 have to exactly copy what
03:07 - 17.326 the federal statutes do.
03:07 - 19.819 It would obviate the reason
03:07 - 21.663 for states having their own
03:07 - 23.180 blue sky laws such as
03:07 - 24.866 Pennsylvania has. And
03:07 - 28.670 I would submit that so long as
03:07 - 29.926 Pennsylvania's rule
03:07 - 31.540 isn't interfering with
03:07 - 33.036 or hindering the
03:07 - 35.310 application of the SCC
03:07 - 36.857 in the federal securities
03:07 - 37.627 laws, it can
03:07 - 39.114 coexist alongside it.
03:07 - 41.489 And it has for a
03:07 - 44.186 number of years.
03:07 - 45.120 You know, on the other hand,
03:07 - 46.888 we have the Department
03:07 - 48.038 of Banking and Securities
03:07 - 49.258 that has filed an amicus
03:07 - 49.929 brief here, and
03:07 - 51.126 they've urged this court
03:07 - 52.389 to recognize that the
03:07 - 54.162 true analog of this statute
03:07 - 57.633 is Section 17 A of the 1933 Act.
03:07 - 00.173 And the line of cases that
03:08 - 02.304 we talked about in there
03:08 - 04.359 versus the SCC and that that
03:08 - 06.375 should control the outcome.
03:08 - 09.177 Now, our position is that
03:08 - 11.125 although we agree
03:08 - 12.547 with the interpretation
03:08 - 13.524 submitted by the
03:08 - 14.616 amicus on the point
03:08 - 15.291 that the statute
03:08 - 16.118 before this court
03:08 - 17.602 today does not require
03:08 - 19.655 pleading and proving intent,
03:08 - 21.118 we don't think the
03:08 - 22.491 court needs to go there.
03:08 - 23.558 We don't think the court needs
03:08 - 25.355 to make a finding on the
03:08 - 27.929 law's true proper federal analog
03:08 - 29.431 to resolve this dispute,
03:08 - 30.546 because I think the court
03:08 - 32.000 can look at the plain language
03:08 - 34.773 of Pennsylvania's own statute
03:08 - 36.905 and understand what it means.
03:08 - 37.878 Do you agree with
03:08 - 38.607 the department?
03:08 - 41.009 We agree with
03:08 - 42.234 the department
03:08 - 44.012 to the extent that
03:08 - 45.212 in terms of what
03:08 - 46.815 the true analog is,
03:08 - 49.830 I think there's evidence
03:08 - 51.086 going both ways.
03:08 - 52.784 And I think, again, that
03:08 - 54.790 it's it's highly pertinent
03:08 - 56.525 to the outcome here.
03:08 - 58.388 We do agree with
03:08 - 01.096 them that the statute
03:09 - 02.843 for a1b does not require
03:09 - 04.366 to plead and prove.
03:09 - 06.368 Santer And and would
03:09 - 07.889 negligence be enough or is
03:09 - 09.905 it a strict liability provision?
03:09 - 11.058 What does he mean
03:09 - 12.441 or what does B require?
03:09 - 14.614 Our position is that
03:09 - 16.378 it is essentially a strict
03:09 - 18.345 liability claim that is, of
03:09 - 20.482 course, subject to defenses
03:09 - 22.370 that are set forth in Section
03:09 - 24.019 five or one of the PSA.
03:09 - 26.355 Which if they.
03:09 - 27.960 Which would take it away
03:09 - 29.925 from strict liability. Yes.
03:09 - 32.685 So it really is it
03:09 - 34.996 is a fraud statute.
03:09 - 38.467 If the it is a fraud statute.
03:09 - 43.171 But the fraud is sort of presume
03:09 - 46.274 meets its burden of proof
03:09 - 47.490 that it was not knowing
03:09 - 48.677 untruth or omission,
03:09 - 51.205 did not know the exercise
03:09 - 52.314 of reasonable care,
03:09 - 54.449 that it was untrue.
03:09 - 55.815 So it really is a fraud statute,
03:09 - 57.119 but it's up to the defendant
03:09 - 59.567 to to prove that it was not a
03:09 - 02.124 knowing or reckless untruth.
03:10 - 04.376 You know, I think that
03:10 - 06.361 it's it's certainly subject
03:10 - 07.262 to those defenses.
03:10 - 08.236 We wouldn't agree
03:10 - 09.931 that it is a fraud statute.
03:10 - 11.700 I mean if you look at part
03:10 - 12.899 four of the Pennsylvania
03:10 - 13.769 Securities Act,
03:10 - 16.693 it's referred to as fraudulent
03:10 - 18.440 and prohibited practice.
03:10 - 20.193 So I know I'm focusing
03:10 - 22.210 on the cause of action,
03:10 - 23.278 which you wouldn't have
03:10 - 24.746 but for the existence of 501,
03:10 - 26.172 because five or one gives
03:10 - 27.549 you the private right of action.
03:10 - 29.551 There's plenty of other,
03:10 - 30.345 you know, statutes
03:10 - 31.520 give criminal penalties.
03:10 - 32.275 This has a criminal
03:10 - 33.054 penalty provision
03:10 - 34.016 and it gives enforcement
03:10 - 35.123 provisions to the agency.
03:10 - 36.858 This does that generally
03:10 - 38.326 when that happens,
03:10 - 38.873 if you supposed
03:10 - 39.594 to be recognized,
03:10 - 40.562 a private rate action,
03:10 - 41.363 the General Assembly
03:10 - 42.564 has to authorize it,
03:10 - 44.032 which they did on 501.
03:10 - 46.768 And by recognizing that defense
03:10 - 48.434 would seem to have expressed
03:10 - 49.971 the General Assembly's intent
03:10 - 52.201 that defendants should
03:10 - 53.875 only be held liable
03:10 - 55.842 if they fail to prove
03:10 - 56.912 by a preponderance
03:10 - 57.815 of the evidence
03:10 - 59.047 that they're there
03:11 - 01.483 that their
03:11 - 02.585 statement was unknowing
03:11 - 03.518 and not reckless.
03:11 - 05.320 I would agree.
03:11 - 06.950 I would I would agree that
03:11 - 08.857 it is there is a burden that
03:11 - 11.225 the defendants can take up
03:11 - 13.495 to show that it was effectively
03:11 - 15.230 an innocent misrepresentation,
03:11 - 16.476 even though it was, in
03:11 - 18.033 fact, untrue at the time.
03:11 - 19.491 I mean, I construe the
03:11 - 21.136 statute that our burden
03:11 - 22.964 is to show that this was
03:11 - 24.406 the sale of a security,
03:11 - 26.083 that there was a
03:11 - 28.176 misstatement that was made
03:11 - 28.871 that was untrue
03:11 - 29.778 when it was made.
03:11 - 30.992 And that was material
03:11 - 32.814 that it was it was, you know,
03:11 - 34.842 important to the
03:11 - 38.053 transaction of the security.
03:11 - 41.256 I do want to
03:11 - 43.692 address comments that my
03:11 - 46.606 esteemed adversary made
03:11 - 48.763 concerning the reason for why
03:11 - 51.459 we amended our complaint just
03:11 - 53.668 by way of a historical footnote.
03:11 - 54.603 I mean, it
03:11 - 56.093 set forth in our motion to the
03:11 - 57.606 Bucks County Court of Common
03:11 - 59.241 to amend.
03:11 - 00.442 And that is
03:12 - 02.738 one of the main reasons
03:12 - 04.646 why we did it was not because
03:12 - 07.216 we didn't have the
03:12 - 09.518 facts, have many facts,
03:12 - 10.170 and which we
03:12 - 11.620 previewed in that motion
03:12 - 13.509 about things that we would
03:12 - 15.390 expect to put on at trial.
03:12 - 18.065 The reason why we did it
03:12 - 20.395 was to take the word fraud
03:12 - 21.786 out of the complaint
03:12 - 23.131 with an aim towards
03:12 - 25.233 possibly fostering a settlement.
03:12 - 26.400 I mean, we stated
03:12 - 27.869 this in the motion.
03:12 - 29.604 It was hardly
03:12 - 30.805 a moment of waving the
03:12 - 32.121 white flag and saying, Gee,
03:12 - 33.708 we don't have enough evidence.
03:12 - 35.844 There is a reason for it.
03:12 - 37.178 It doesn't matter if it was made
03:12 - 37.973 within the statute
03:12 - 38.747 of limitations,
03:12 - 39.918 and that has not been
03:12 - 41.283 an issue in this case.
03:12 - 42.883 So it doesn't really matter
03:12 - 44.686 why you amended my right or.
03:12 - 50.258 So with respect to the comments
03:12 - 51.502 concerning whether or
03:12 - 53.128 not it's adequately pled,
03:12 - 55.235 we would ask this court
03:12 - 56.965 to to agree with what
03:12 - 58.098 the Superior Court
03:12 - 59.701 wrote, which is even if
03:13 - 01.011 a court were to
03:13 - 01.937 decide that, say,
03:13 - 03.809 enter is a requirement under
03:13 - 05.840 the statute, it's adequately
03:13 - 07.677 here, there is specificity,
03:13 - 08.677 there are dates,
03:13 - 11.054 there are assertions of
03:13 - 13.448 fact, there are a setting.
03:13 - 15.193 There's a time, a
03:13 - 17.586 place, there's speakers.
03:13 - 19.054 Even if one of the four
03:13 - 20.760 isn't identified, it's not
03:13 - 22.357 as if we said someone.
03:13 - 24.327 It's one of the four
03:13 - 25.860 defendants that are
03:13 - 27.295 before this court today.
03:13 - 29.998 So we think that it's adequately
03:13 - 31.940 set forth in our
03:13 - 33.101 amended complaint,
03:13 - 34.869 and we ask the court to
03:13 - 35.931 to affirm the superior
03:13 - 36.871 court's decision.
03:13 - 38.011 Thank you. Does anybody
03:13 - 39.074 have any questions?
03:13 - 40.787 You know, it's a shame
03:13 - 42.077 that we're not offering
03:13 - 43.854 CLE credit in securities
03:13 - 45.580 law for this argument
03:13 - 46.476 because it's been
03:13 - 47.983 outstanding on both sides.
03:13 - 49.751 And thank you very much.
03:13 - 51.753 Thank you very much, Mr. Miller.
03:13 - 18.146 I mean.
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