00:00 - Good morning.

00:03 - Welcome to the

00:04 - Commonwealth Court

00:06 - for our UN Banc Arguments.

00:13 - The UN banc

00:13 - arguments are half an hour each,

00:17 - so each side gets 15 minutes.

00:19 - If you have

00:22 - anyone else that you're

00:23 - going to share time

00:24 - with, please make

00:25 - arrangements before you come up.

00:27 - Appellants or petitioners

00:30 - are entitled to rebuttal.

00:33 - So just let us know

00:34 - if you are going to ask for

00:36 - that and we'll deduct that time.

00:39 - We are prepared.

00:40 - So just jump right in.

00:41 - We know that a half hour

00:43 - doesn't seem like a lot of time

00:45 - when you're up here

00:46 - speaking about these cases.

00:48 - But we were ready to hear

00:50 - and we will have questions.

00:53 - If you have any devices,

00:54 - please put them on silent now.

00:58 - And because this is

00:59 - being recorded for PC

01:01 - and I will read a

01:02 - brief introduction

01:04 - before each case begins,

01:06 - we will begin then with number

01:09 - 25 on the list in Ray Appeal

01:12 - of the Gun Range LLC.

01:15 - In our first case,

01:16 - the owner of a gun

01:17 - shooting Range

01:18 - Appeals from an Order of

01:19 - the Court of Common Pleas

01:21 - that affirmed the City of

01:23 - Philadelphia Zoning Board's

01:24 - denial of an application

01:26 - to sell firearms.

01:28 - The gun range

01:29 - challenges the constitutionality

01:31 - of the city's zoning code,

01:33 - which does not permit

01:34 - the operation of a gun shop.

01:36 - A commercial use in any

01:38 - commercial district in the city.

01:41 - The gun range contends that

01:42 - withholding retail sales of guns

01:45 - from commercial districts is

01:46 - an unconstitutional restriction

01:49 - under the Second Amendment

01:50 - of the United States

01:51 - Constitution and Article one,

01:54 - Section 21 of the

01:55 - Pennsylvania Constitution,

01:57 - both on the

01:58 - right of the business owner

01:59 - and on the right of a citizen.

02:02 - Appellant further submits

02:03 - that the code's restriction

02:05 - of gun shops and similar

02:06 - establishments to a small

02:08 - and isolated section of the city

02:11 - classified as

02:12 - industrial constitutes

02:14 - a de facto exclusionary

02:16 - zoning regulation.

02:18 - The city argues that the Second

02:20 - Amendment does not cover

02:22 - the conducted issue,

02:23 - that it protects the right

02:25 - to keep and bear arms,

02:26 - not the right to sell them.

02:28 - The city also argues

02:30 - appellant has failed

02:31 - to articulate how regulating

02:33 - the location of gun shops

02:35 - has interfered with the

02:36 - rights of Philadelphia fans

02:38 - to procure weapons or to

02:40 - possess and carry firearms.

02:42 - So with that introduction,

02:44 - please proceed.

02:46 - I'd like to.

02:47 - Have 3 minutes for rebuttal.

02:49 - 3 minutes?

02:50 - You have it.

02:55 - Good morning.

02:56 - May it please the court.

02:58 - My name is Dawn

02:59 - Tancredo and I represent

03:01 - the gun range in an

03:02 - appeal from the decision

03:04 - of the Philadelphia

03:05 - Zoning Board of Adjustment

03:07 - and the Philadelphia

03:08 - Court of Common Pleas.

03:10 - The court has pursued,

03:12 - reviewed the briefs and

03:13 - is familiar with this case.

03:16 - Today, I would

03:17 - like to focus on the

03:18 - application of Bruin

03:21 - to the question presented.

03:24 - The question is,

03:26 - does the Philadelphia

03:27 - zoning code,

03:28 - as it relates to guns, violate

03:31 - the Second Amendment

03:33 - and the Pennsylvania

03:34 - Constitution because the code

03:37 - does not permit gun shops

03:38 - in any commercial district

03:41 - despite being a commercial use?

03:46 - The first question in analyzing

03:48 - a challenge to a statute

03:50 - as violating the Constitution

03:54 - is does the regulation

03:56 - infringe upon conduct

03:58 - that is protected by the

04:00 - Second Amendment?

04:02 - If so, can the government

04:04 - justify the regulation

04:07 - by demonstrating

04:08 - that it is consistent

04:10 - with the historical tradition

04:12 - of firearm regulation?

04:15 - As to the first question,

04:18 - a gun shop is defined

04:19 - in the Philadelphia Code

04:22 - as any retail sales business

04:24 - engaged in selling,

04:26 - leasing, purchasing

04:28 - or lending of guns,

04:30 - firearms or ammunition.

04:34 - The activity that occurs in a

04:35 - gun shop includes the

04:37 - acquisition of firearms

04:39 - and the maintenance of

04:41 - proficiency for their use.

04:44 - The activity is protected

04:47 - under the Second Amendment

04:51 - because the activity is pro

04:53 - excuse me, because

04:55 - the activity is protected.

04:57 - We proceed to the

04:58 - second question

05:00 - as to

05:00 - whether the city can justify

05:02 - its regulation by demonstrating

05:05 - that it is consistent

05:06 - with the nation's

05:07 - historical tradition

05:08 - of firearm regulation.

05:11 - Here in this case,

05:12 - the city has the burden

05:14 - to show that throughout

05:15 - history, gunshots

05:17 - could be banned entirely

05:19 - from commercial districts.

05:21 - Only those restrictions

05:22 - that have long standing

05:24 - and historical

05:25 - justifications are permitted.

05:29 - The city has not

05:30 - met its burden, nor

05:32 - can the city meet its burden

05:33 - because it failed to put

05:35 - any evidence in

05:36 - the record further.

05:39 - The record shows that the

05:40 - history of banning gun shops

05:42 - from commercial uses

05:44 - only goes back to 2007.

05:47 - In Philadelphia.

05:48 - How do you respond

05:50 - to the location

05:51 - being so close to a

05:52 - residential district? Scuse me.

05:54 - How do you respond

05:55 - to the location

05:55 - being so close to a

05:56 - residential district?

05:59 - Okay.

06:00 - So as for the

06:01 - location being close

06:04 - to a residential district, gun

06:06 - shops are a commercial use.

06:08 - So we're not asking

06:10 - that the use be permitted

06:11 - in a residential district.

06:16 - The zoning code is set up

06:18 - with different

06:19 - districts for residential,

06:22 - commercial and industrial

06:24 - districts.

06:28 - We're not arguing.

06:32 - So as for being located

06:34 - near a residential district,

06:36 - the use would be

06:37 - in a commercial district,

06:38 - not a residential district.

06:41 - As for distance

06:42 - requirements, distance

06:44 - requirements are not

06:46 - necessarily before this court.

06:48 - It's the fact that

06:50 - the use is not permitted

06:51 - in any commercial district.

06:53 - So it is.

06:54 - Permitted requirements made, it

06:55 - is limited in another district.

06:57 - So it's not like

06:58 - the city of Philadelphia has

07:00 - banned the sale of firearms.

07:02 - It's permitted in

07:03 - a different district.

07:05 - Yes. So the issue with

07:07 - that is that even though

07:09 - the sale of guns is not banned

07:12 - entirely from every district,

07:15 - there is still a

07:17 - limitation on access.

07:21 - Restrictions on the

07:23 - ability to purchase an item

07:25 - is tantamount to a

07:27 - restriction on use of that item.

07:31 - What restriction? I'm sorry.

07:32 - What restriction are.

07:33 - You referring to? Sorry.

07:34 - What restriction

07:35 - are you referring to?

07:37 - So the restriction

07:38 - is on the ability

07:40 - to acquire a gun,

07:43 - a firearm, for possession,

07:46 - and for for self-defense.

07:49 - So should we have gun

07:50 - shops on every corner then?

07:52 - Sorry.

07:52 - Can you speaking

07:53 - to that microphone?

07:54 - Should you have gun

07:55 - shops on every street?

07:57 - If not, if not, have it.

07:58 - You're saying that it

07:59 - there's a restriction on it.

08:01 - You're you're you're not.

08:03 - I don't understand what the

08:05 - Second Amendment violation is.

08:07 - The right to sell guns

08:08 - anywhere you want.

08:10 - It's not asking to be able to

08:11 - sell guns wherever you want.

08:13 - So the restriction in

08:15 - this case is on the access

08:17 - to purchase firearms.

08:19 - It does restrict the

08:20 - ability of individuals

08:22 - to possess a firearm

08:23 - for self-defense.

08:25 - Where's the evidence of similar?

08:26 - Where was the evidence

08:27 - of that presented by

08:30 - either party at the trial court.

08:32 - Okay. So.

08:32 - So on its face, there are

08:34 - no permitted gun shops

08:37 - that are permitted in commercial

08:39 - districts similar to carry.

08:41 - The court had found that

08:44 - the limitation of the

08:47 - commercial channels

08:49 - and the number of retail

08:51 - outlets for contraception

08:54 - sales was a limitation on

08:57 - the access to the public.

09:00 - And similarly here,

09:01 - when you have a limitation

09:04 - on the sale of a

09:05 - commercial product

09:07 - in every commercial

09:08 - district, it's a limitation.

09:10 - And because it's a limitation,

09:12 - we have to look at that.

09:14 - And in this case,

09:14 - there's no historical

09:16 - basis for this new limitation

09:18 - that only goes back

09:20 - to 2007, prior to 2007.

09:23 - Gun related uses were permitted

09:26 - in the commercial districts.

09:31 - Was there any evidence presented

09:33 - that these zoning

09:34 - restrictions prevented.

09:37 - Philadelphia.

09:38 - Citizens from buying guns

09:42 - now? And that's not necessarily

09:46 - the standard that

09:47 - needs to be shown.

09:49 - When you look at carry.

09:52 - There was a limitation on access

09:55 - to the public by limiting the

09:57 - commercial channels here.

09:59 - On its face, there's

10:01 - a limitation to access

10:03 - by not permitting a

10:04 - commercial use to be sold in

10:07 - any commercial district.

10:08 - So on to a constitutional

10:10 - right to sell guns

10:13 - that the Second Amendment. Sure.

10:15 - So the Supreme Court

10:16 - hasn't answered that question,

10:17 - and that question isn't

10:19 - before the court today.

10:20 - The focus is on

10:21 - the right to acquire

10:24 - guns and maintain

10:25 - proficiency in their use.

10:28 - Well, what evidence is there

10:30 - that someone can't acquire a gun

10:33 - just because it can't

10:35 - be sold in one district

10:37 - when it can be sold

10:38 - in another district?

10:40 - How is that a

10:42 - preclusion of acquisition?

10:47 - Okay.

10:47 - So because we are talking

10:49 - about a protected right,

10:52 - the Second Amendment

10:53 - analysis does apply.

10:55 - And the question is,

10:56 - what is the historical

10:58 - basis for not allowing the

11:02 - acquisition of guns

11:04 - and maintenance

11:05 - of proficiency in their use

11:07 - in commercial districts?

11:08 - And the record shows that that

11:11 - use was permitted prior to 2007.

11:14 - The city hasn't shown

11:16 - an historical basis.

11:19 - So you're you're

11:20 - alleging that the city,

11:23 - because the restrictions

11:25 - did not apply until 2007,

11:27 - that the city is not permitted

11:30 - to change its

11:32 - zoning regulations.

11:34 - So that the city is permitted

11:36 - to change its zoning.

11:38 - However, once you're

11:39 - limiting access to the public

11:42 - of a Second Amendment

11:44 - protected right, that's

11:46 - where the issue comes in.

11:48 - And courts have held that

11:52 - access to the public

11:53 - of a protected right.

11:56 - But there are other and I

11:57 - know this is asked before

11:59 - there are other

12:00 - there are many other

12:01 - gun shops in Philadelphia

12:03 - where people can

12:03 - purchase guns. Right.

12:05 - There are.

12:06 - And so to suggest that there

12:08 - are ample gun shops in the city

12:11 - really deflects from the

12:13 - wording and the statute.

12:15 - When you look at the

12:16 - statute, the statute itself

12:18 - is restrictive

12:20 - and restricting the ability to

12:22 - purchase guns and firearms

12:25 - is a restriction on

12:28 - the rights of citizens

12:29 - to be able to possess

12:32 - guns for self-defense

12:34 - without an historical

12:36 - basis here, because

12:38 - the history in this case

12:40 - shows that

12:42 - this use was permitted

12:44 - in commercial

12:45 - districts in the past.

12:48 - Is that the only historical

12:50 - basis that we have is

12:51 - to look at what

12:52 - Philadelphia did in 2007.

12:55 - So let me go back

12:57 - further to when the Second

12:58 - Amendment came into existence.

13:00 - Well, yes.

13:01 - So the burden to

13:02 - show that the history

13:05 - justifies the regulation

13:07 - is is on the city.

13:09 - And they haven't

13:11 - presented any evidence.

13:14 - So you're not saying

13:16 - that your client is denied

13:19 - access.

13:19 - And I guess

13:20 - it's even an issue of whether

13:21 - your client has standing

13:22 - because the Second

13:24 - Amendment talks about the people

13:26 - having the right, not

13:28 - a gun shop owner.

13:30 - But I'm still a little uncertain

13:32 - as to exactly where you think

13:34 - that because it can't be

13:35 - sold in a certain location,

13:37 - that there's a violation of

13:39 - the Second Amendment.

13:41 - So even if

13:43 - we were not talking

13:44 - about a protected

13:46 - right here, the zoning code

13:49 - has identified a commercial

13:51 - use that is only permitted

13:54 - in industrial districts.

13:58 - On its face, the statute

13:59 - cannot even meet

14:01 - the rational basis test,

14:03 - and the city has offered

14:05 - no evidence to show to

14:07 - show that it makes sense.

14:10 - I mean, honestly, the.

14:11 - Fact that was asked before, I

14:13 - mean, the shop is located 500

14:14 - feet from a residential area.

14:18 - So, I mean, doesn't

14:19 - the city have a right

14:20 - at some point

14:22 - to look at its population

14:23 - and what's going on in the city

14:25 - and to determine where it's best

14:29 - to have the location

14:30 - of a gun sales?

14:33 - Yes, the city has authority

14:36 - to zone to place zoning

14:38 - restriction ends. And,

14:41 - you know, zoning zoning

14:42 - laws that regulate guns

14:44 - are not above the Second

14:47 - Amendment analysis.

14:49 - I mean, what.

14:49 - The city had prohibited

14:51 - altogether, the sale of guns,

14:54 - then I would agree with you.

14:56 - But I'm concerned here

14:57 - that saying that you're equal

15:00 - in that you get to choose where

15:02 - you want to put the gun shop

15:05 - and saying that that's

15:06 - equivalent to have

15:09 - a denial of the

15:10 - right to bear arms

15:11 - because you can still

15:12 - buy guns in Philadelphia.

15:14 - Right.

15:15 - So the issue is not about the

15:17 - right to a specific location.

15:19 - The issue is about

15:21 - the right to acquire

15:24 - firearms and

15:25 - maintain proficiency

15:26 - and their use and the

15:28 - fact that they're not being.

15:30 - But but

15:31 - your client's not arguing

15:32 - that they're being denied that.

15:33 - Right, because

15:34 - it's still available

15:36 - just in a different

15:37 - location of the city.

15:39 - Well, it is available

15:40 - in a different location,

15:41 - but the argument is that

15:43 - it's a limitation on the right,

15:46 - because it's traditionally

15:48 - been permitted

15:49 - in commercial districts and

15:51 - it's no longer permitted here.

15:53 - And when you look at

15:55 - carry and the limits portion

15:57 - on the availability

16:00 - of commercial

16:01 - channels, that's what we

16:03 - have here is comparing.

16:05 - But but the difference is

16:07 - we're talking contraceptives

16:09 - versus guns.

16:10 - So you're saying that

16:11 - we should apply that

16:13 - the whole strategy in caring

16:18 - even though we're talking

16:19 - Kerry was with regard to

16:21 - contraceptives and not firearms

16:24 - that you're saying that the

16:26 - the analysis is the same

16:27 - as what you're saying?

16:28 - I would say that the

16:29 - analysis is the same and that

16:31 - if there's a limitation

16:33 - on access to the public,

16:35 - that's what should be recognized

16:37 - here by not permitting

16:39 - a commercial use in

16:41 - any commercial district.

16:42 - Okay.

16:43 - And under your

16:44 - theory, would the city

16:47 - be prohibited from

16:49 - regulating sales of firearms

16:51 - in residential

16:53 - districts as well?

16:55 - There's no history to show that

16:58 - firearms should be

16:59 - sold in residential district.

17:01 - There's no history

17:02 - of prohibiting it either.

17:04 - Excuse me.

17:04 - There's no history

17:05 - prohibiting it.

17:06 - So under your argument, I

17:08 - would think you'd have to say

17:11 - that the city can't prevent

17:12 - firearms being sold

17:14 - in residential

17:15 - districts as well.

17:19 - I would not agree with that.

17:21 - And I would say that because

17:24 - cities have been able to

17:27 - create zoning laws.

17:29 - So in Philadelphia, what

17:31 - we have is a conventional

17:33 - set of districts where

17:34 - we've got residential districts,

17:37 - we've got commercial districts

17:39 - and industrial districts, but

17:41 - we've got unconventional rules

17:43 - in that a commercial district

17:45 - is only permitted in

17:47 - an industrial district.

17:50 - How does that make

17:51 - sense on its face?

17:53 - Or are you saying that

17:57 - there can be no limitation

17:58 - once something is classified

18:00 - as commercial use

18:01 - under the zoning code?

18:03 - Are you saying once

18:04 - it's a commercial use?

18:05 - I can't limit that in any way.

18:07 - It just has to be

18:08 - permitted as of. Right.

18:10 - Well, go ahead.

18:11 - I'm not saying that and

18:12 - I'm saying that there are

18:14 - permissible conditions

18:16 - and qualifications.

18:18 - The Supreme Court

18:20 - and other courts

18:21 - have upheld

18:22 - distancing requirements.

18:25 - The court has also

18:27 - discussed sensitive places

18:29 - and restrictions

18:31 - on the locations

18:33 - of guns is a

18:34 - permissible restriction.

18:36 - However, an entire ban on

18:39 - a commercial

18:40 - district has not been

18:43 - upheld.

18:44 - Thank you very, very much.

18:46 - Your time is ended, but

18:48 - you do have time for rebuttal.

18:50 - Thank you.

18:58 - Good morning, Madam Chief.

18:59 - Judge May, please. The Court.

19:01 - I'm Jane Esteban

19:02 - and I represent the city.

19:03 - Today I have. Megan

19:05 - speak up for. Sure.

19:06 - Today I have Megan

19:07 - Finnerty with me.

19:08 - Megan represents the Spring

19:09 - Garden Neighborhood Association.

19:11 - Megan doesn't intend to

19:12 - take up any time for argument,

19:14 - but she's here for questions

19:15 - if the panel has any.

19:17 - So was there an actual hearing

19:19 - before the trial court on this?

19:21 - Judge, I thought

19:22 - there was a hearing

19:23 - before the zoning

19:23 - board of Adjustment.

19:24 - What about when it was remanded?

19:26 - Was there any

19:27 - additional evidence taken?

19:28 - This court instructed on the

19:30 - remand that that there was

19:32 - that there was to be no

19:34 - additional evidence taken.

19:37 - And so with that, I

19:38 - guess I'd like to start

19:40 - because with the notion that

19:43 - that it's significant

19:45 - that under the

19:45 - on the face of the zoning code,

19:47 - that gun shops aren't

19:48 - permitted in commercial

19:50 - and commercial zones.

19:51 - Because I think that's

19:52 - really a misnomer

19:52 - when you look at the fact

19:54 - that this is a Second

19:55 - Amendment challenge,

19:56 - because this is a Second

19:57 - Amendment challenge.

19:58 - The focus isn't on

19:59 - the right of the seller.

20:00 - And I kind of hear the gun range

20:02 - to be admitting that the focus

20:03 - is on the right of an individual

20:05 - to keep and bear arms.

20:06 - Yes, but if someone can't buy

20:08 - guns, how can they possess them?

20:11 - Yes. Yes, Judge.

20:12 - Well, I want milk,

20:13 - but I can't get any.

20:14 - How do I get

20:14 - and I would concede that

20:15 - in the extreme situation,

20:17 - which is something that we

20:18 - had in Israel to something,

20:19 - you know, one of the

20:19 - cases that was discussed,

20:20 - you might have a situation

20:22 - where the rights of individuals

20:24 - are so constrained that

20:25 - they can't acquire firearms.

20:27 - However, what's

20:28 - important is on this record,

20:29 - that's just not the case.

20:31 - And so the reason that I

20:32 - take issue with the notion

20:33 - there's a ban on commercials

20:34 - and there's a ban on gun shops

20:36 - and commercial centers,

20:37 - that they're not permitted

20:38 - on the face of the zoning code

20:40 - is that it ignores

20:41 - the reality of what's

20:43 - on this record, of

20:44 - what's there to serve

20:45 - the needs of the gun owner.

20:47 - And that's the fact that there

20:48 - are shops throughout the city.

20:50 - According to the gun ranges

20:51 - own undisputed testimony,

20:53 - there are about ten gun shops

20:55 - located throughout the city,

20:56 - and that's a quote to serve

20:58 - the needs of gun owners.

20:59 - And more important, no

21:01 - firearms owner judge has.

21:02 - However, I believe

21:03 - you touched on this.

21:04 - There is no evidence

21:05 - coming from a firearms owner

21:07 - explaining how the number of gun

21:09 - shops that we have and

21:09 - what they have available

21:10 - in any way constrains

21:11 - their right to keep and bear.

21:13 - What about this concept

21:14 - that if something is labeled

21:16 - a commercial use

21:17 - and then it is not

21:19 - cannot come to fruition

21:20 - within a commercial district

21:22 - because of any restriction

21:23 - here in this case, distance

21:25 - from a residential.

21:26 - Neighborhood.

21:27 - That constitutes a ban.

21:31 - Just shows that I can't I

21:31 - respectfully I think that

21:33 - that that that's a deflection.

21:35 - It's a very interesting issue

21:36 - with with respect to arguments

21:38 - about our zoning code.

21:39 - And I would stated

21:40 - that in response.

21:41 - Right. And watching.

21:43 - But I'm sorry.

21:44 - No, that's okay.

21:44 - I just

21:45 - I that seems to be their

21:46 - position that if it can't happen

21:49 - in a zone where it's permitted,

21:50 - then that constitutes a ban.

21:53 - Is that

21:53 - and if she's looking at

21:55 - it facially, maybe, yes.

21:56 - But the problem is, again,

21:58 - because the focus is on

21:59 - the rights of the owner,

22:00 - we have to look at the

22:01 - reality of what's on the ground.

22:02 - And we have legacy uses,

22:04 - we have nonconforming uses.

22:05 - We have people who

22:06 - get variances and a result

22:08 - as a result of all of that,

22:10 - there are gun shops in the city.

22:12 - There are gunshots

22:13 - in industrial settings.

22:14 - There's a couple in

22:14 - commercial zones.

22:17 - Does it make it somewhat

22:18 - pointless that it's classified

22:19 - as a commercial

22:20 - use if it can't happen.

22:21 - In a commercial district?

22:23 - Again, I submit

22:23 - that's a question.

22:25 - If there's a challenge,

22:26 - if there's an interpretation

22:27 - of our zoning code,

22:28 - some kind of challenge

22:29 - there, and I'd submit

22:31 - the range had the

22:32 - opportunity to make challenges

22:33 - with respect to their own rights

22:35 - to sell guns and or, you

22:37 - know, preemption arguments.

22:39 - There were arguments

22:39 - with respect to interpretation

22:40 - of the zoning code,

22:41 - and they didn't prevail.

22:42 - And that was in

22:43 - the first decision.

22:44 - And so, again, I

22:45 - think the focus here

22:47 - with respect

22:47 - to the constitutional challenge

22:49 - is this what impact does

22:50 - a restriction on them have

22:52 - upon firearms owners?

22:53 - And on this record, as

22:55 - multiple judges pointed out

22:58 - when they were questioning

22:59 - the gun range, there isn't any.

23:01 - And I think that's belied

23:03 - by the fact that no firearms

23:05 - owner actually came forward

23:07 - to articulate how they're

23:08 - suffering from a burden here.

23:11 - And so for that reason,

23:14 - the gun range hasn't hasn't

23:15 - satisfied their threshold burden

23:17 - under Bruin.

23:18 - And, you know, we've

23:20 - we've articulated the,

23:22 - you know, the excuse me,

23:24 - we've articulated how the

23:25 - burdens operate under Bruyn

23:27 - and because we believe

23:28 - they haven't satisfied

23:30 - that threshold,

23:31 - that threshold issue

23:33 - to articulate that

23:33 - there's a burden

23:34 - on the individual

23:35 - right to keep and bear,

23:36 - that we don't get into

23:37 - the issue of history.

23:39 - Are you saying they

23:40 - don't have standing?

23:41 - We didn't make that argument

23:43 - specifically, Judge Covey.

23:45 - We assumed arguing.

23:47 - No, that in the abstract,

23:49 - perhaps a shop owner

23:52 - could have derivative standing

23:53 - to bring a claim and assert

23:55 - that individual gun owners are

23:57 - hurt by restrictions on them.

24:00 - And, you know, we

24:00 - did that because we rely

24:01 - so heavily on the Tachira case,

24:03 - which we think is the only case

24:05 - that I've found that's

24:06 - on all fours with our case

24:08 - and and to share of the court

24:09 - said the same thing is it's

24:10 - going to assume

24:10 - that there could be derivative

24:12 - standing in the right case.

24:14 - But the reason we

24:15 - didn't address that is

24:16 - this isn't the right case.

24:18 - You need to articulate that

24:20 - there was some kind of burden

24:21 - on the individual gun owner.

24:23 - And again, we come

24:24 - back to the merit

24:24 - to our merits argument that

24:26 - they haven't done so here.

24:27 - Mrs. Flint could

24:29 - assume the argument.

24:30 - Are you, for argument's sake,

24:32 - are you end up that brewing?

24:34 - APPLAUSE Could

24:35 - you respond to Ms..

24:36 - Tancredo's argument

24:37 - that we have to look at this

24:39 - from the perspective

24:40 - of the 2007 zoning

24:42 - rules?

24:45 - If we were doing a

24:46 - historical analysis judge logic,

24:47 - my understanding is

24:49 - you would go back and

24:50 - you would look at history,

24:51 - going back to the founding

24:52 - era and going back to

24:53 - when the 14th

24:53 - Amendment was enacted.

24:55 - And we've cited some

24:56 - of the historical sources

24:57 - that were cited and

24:58 - some of the cases

24:59 - we rely on, which are

25:00 - Teixeira and Drummond.

25:02 - And there is evidence there

25:04 - of the fact that there was

25:06 - significant governmental

25:07 - control of arms sales.

25:09 - And we think that's good enough.

25:10 - But we also think

25:11 - that we don't get there.

25:13 - When they.

25:17 - And I also I

25:19 - wanted to to touch very

25:21 - briefly on Judge Cove's point,

25:23 - asking about the

25:24 - residential uses

25:25 - and I do think

25:25 - that's important here,

25:26 - because I don't hear a limiting

25:28 - principle from the gun range.

25:30 - I hear the gun range to say that

25:32 - because we limit gun

25:34 - shops, that we limit

25:36 - where you can put a gun shop,

25:37 - that that's somehow a per

25:39 - se restriction on gun owners.

25:40 - And to me, I'm not hearing a

25:42 - reason why that wouldn't apply

25:44 - to zoning and residential signs

25:46 - as well as commercial zones.

25:48 - And I think it's important

25:49 - to note that in this case

25:50 - there is a 500 foot rule

25:52 - with respect to regulated use

25:53 - and in this case,

25:57 - this case showed that in

25:58 - the original zoning hearing

25:59 - that the homes that were

26:01 - close to the gun range are

26:03 - within 53 feet and 89 feet,

26:05 - I believe, of the gun range.

26:07 - And so if we couldn't have

26:08 - those kind of restrictions

26:10 - because we couldn't satisfy

26:12 - a historical test, that would be

26:14 - a massive burden on

26:15 - us, a massive imposition

26:17 - on our ability to regulate.

26:18 - And I don't know if I

26:19 - have time to go through

26:21 - some of the passages

26:21 - in Heller and Breuer,

26:22 - but I think Heller and Bruton

26:23 - make very clear that they

26:25 - do not intend to touch upon

26:27 - and put into a presumptively

26:30 - unconstitutional category.

26:32 - Every regulation and that in

26:37 - some way it touches on firearms.

26:43 - So I guess perhaps it's

26:44 - worth just flagging those sites

26:45 - really quickly unless the

26:46 - court has some other questions,

26:48 - because I did want

26:49 - to point out that

26:52 - I never get this quote right.

26:54 - I try to memorize

26:54 - quotes when I come

26:55 - before you, but

26:55 - I can't do it here.

26:56 - But this is

26:57 - I think this is a

26:58 - significant quote

26:59 - Broun cited from

27:00 - Heller that the scope

27:01 - of the Second Amendment right

27:03 - is not a right to keep and

27:04 - carry any weapon whatsoever

27:06 - in any manner whatsoever

27:08 - and for whatever purpose.

27:09 - And I guess I would add

27:11 - here, that means to me

27:12 - it doesn't encompass a right to

27:14 - buy a gun whatsoever location

27:16 - you choose invoking you

27:18 - know Judge Wallace this point.

27:20 - Yes at a certain extreme

27:21 - if the city banned guns

27:23 - and we had owners come forward

27:24 - and say it's very difficult

27:25 - for me to obtain one,

27:27 - that that's a different matter.

27:28 - But that's simply not the case.

27:32 - And then second, I

27:33 - also just wanted to point

27:34 - to the fact that I think I

27:35 - haven't mentioned this yet,

27:37 - that in Judge Kavanaugh

27:39 - and Justice Kavanaugh's

27:40 - concurrence in

27:41 - which he was joined

27:42 - by the chief justice,

27:43 - they both re-emphasized

27:45 - Heller's notion that

27:46 - among that, among the list

27:48 - of presumptively constitutional

27:50 - regulations, that,

27:52 - again, regulations that even

27:53 - though they concern guns,

27:55 - do not come within the scope

27:56 - of the Second Amendment

27:57 - or regulations on the conditions

28:00 - of the sale of commercial

28:03 - regulations on the

28:03 - commercial sale of firearms.

28:06 - And I would submit that that's

28:07 - exactly what we have here.

28:09 - We have a basic zoning code.

28:10 - It doesn't purport to limit

28:12 - the rights of firearms

28:13 - owners in any way.

28:14 - Therefore, it doesn't come

28:15 - within the Second Amendment,

28:16 - within the scope of the

28:20 - Second Amendment.

28:23 - So I think that this

28:24 - court already addressed

28:26 - the de facto anomaly

28:27 - opposing counsel as well

28:29 - in the first opinion

28:31 - that this court already

28:32 - addressed the de facto argument

28:34 - and so therefore is

28:36 - not before us now, it's

28:39 - a difficult question,

28:40 - Judge Colvin

28:41 - and as I was reading,

28:41 - as I was looking at the

28:42 - opinion, I was thinking

28:43 - that it's difficult because

28:44 - well, I said in my brief that

28:46 - that the remand

28:47 - specifically instructed

28:50 - the trial court to only address

28:51 - the Second Amendment challenge

28:53 - and the challenge under Article

28:55 - one, Section 21

28:55 - of the Constitution

28:57 - and didn't mention

28:58 - exclusionary zoning,

28:59 - that therefore

29:00 - that's not within the bounds

29:01 - of what the Court is here

29:03 - to address here.

29:04 - But to be fair,

29:05 - when I looked at the opinion,

29:06 - I really cannot find a reference

29:07 - to the exclusionary

29:08 - zoning claim.

29:10 - But on that one,

29:11 - I mean, it's funny.

29:12 - I think the argument is

29:13 - in the majority case that

29:14 - we cited is very similar

29:16 - here in a majority,

29:17 - the court said

29:18 - when you're looking

29:18 - at a commercial use, you

29:20 - don't look you don't do what

29:22 - the gun range has done

29:23 - here and just say there's

29:24 - a very tiny

29:25 - percentage of the city

29:26 - in which I could get

29:27 - an as of right use here

29:28 - and therefore I'm

29:29 - de facto excluded.

29:31 - Imagine she says no

29:32 - with a commercial use.

29:32 - We don't do that.

29:33 - We look to whether the

29:34 - needs of the community are met

29:36 - with respect to

29:37 - that particular use.

29:38 - And so I would

29:39 - bring the court again

29:40 - back to the fact

29:41 - that on this record

29:43 - there's a record of ample

29:44 - gun shop availability and

29:46 - and in fact,

29:47 - while it's outside the record,

29:48 - during the pendency of this

29:50 - case, the gun shop has obtained

29:52 - the gun range, has

29:52 - obtained a permit

29:53 - to open a gun shop in

29:55 - another area of the city.

29:56 - And so to me, I think

29:57 - they have a very hard

29:58 - right to go on and on.

30:00 - Any exclusionary zoning claims

30:01 - should the court

30:02 - choose to reach it?

30:03 - Thank you.

30:06 - With that, if there are no

30:07 - further questions, I'll rest

30:08 - and I'll ask the Court

30:10 - to affirm the

30:10 - denial of the appeal

30:12 - by both the trial court

30:13 - and the zoning board.

30:14 - Thank you.

30:15 - Thank you very much.

30:24 - Thank you.

30:25 - So the change in the law

30:27 - in Philadelphia in 2007,

30:30 - banned gun shops,

30:32 - anything related to guns

30:34 - from commercial districts.

30:36 - It relegated the use

30:37 - to industrial districts.

30:39 - That creates a burden.

30:41 - And under the Bruin analysis,

30:44 - there's not a question of

30:46 - was it a small burden.

30:47 - Or a burden on. And.

30:49 - A burden on who?

30:50 - So it's a burden on citizens

30:53 - who are trying to acquire

30:56 - firearms for possession,

30:58 - for self-defense.

31:01 - And was there

31:02 - any evidence in the record

31:03 - below that that occurred?

31:06 - So there's

31:07 - no one showed up to say that

31:10 - they were no longer able to.

31:12 - So your answer is

31:13 - no. Right. Right. No.

31:15 - And you know.

31:17 - Don't you have to show that?

31:19 - Well, the burden is on the city.

31:25 - To have the city

31:26 - meet that burden.

31:27 - So so the burden is shown

31:30 - by the change in the law

31:33 - and on its face, the

31:34 - ban would be considered

31:37 - a burden.

31:38 - Because if you

31:39 - take a look at carry

31:41 - the limitation on access to

31:43 - the public is is the change

31:46 - that creates the burden

31:48 - and that change limiting the

31:52 - ability to acquire

31:54 - guns only to

31:55 - industrial districts

31:57 - along with all of

31:59 - the other issues

32:01 - that it's such a small

32:03 - mind you part of the city

32:05 - and and on top of that

32:06 - there's distance requirements

32:08 - that only goes to show

32:11 - the difficulty in the access

32:14 - to guns.

32:18 - Is this court allowed

32:19 - to take public?

32:20 - Is this court allowed

32:21 - to take judicial notice?

32:22 - The short doesn't seem to be

32:23 - a shortage of guns

32:25 - in Philadelphia.

32:28 - Sure. Sure.

32:29 - I mean, that's not

32:30 - what the statute is about,

32:32 - about the shortage of guns.

32:34 - It's about that's what

32:35 - you just said to the court.

32:38 - The the ability to acquire guns.

32:43 - And one other note

32:44 - that I'd like to make

32:45 - is that the statute here is not

32:49 - about a restriction on

32:51 - the rights of gun owners.

32:53 - The zoning ordinance impacts

32:56 - every law abiding citizens

32:58 - right to acquire guns.

33:00 - And it's up to the individuals

33:03 - to exercise that right.

33:06 - Can you address the de facto

33:08 - argument, do you think the court

33:11 - had that encompassed

33:12 - in its remand or no?

33:15 - So I believe that it's

33:17 - part of the remand.

33:21 - It wasn't addressed

33:22 - by the court originally

33:24 - and it's a it's part of the

33:26 - constitutional argument,

33:28 - even though it's not part of the

33:30 - Second Amendment argument.

33:32 - It's a constitutional

33:33 - argument that

33:36 - it's de facto exclusionary.

33:38 - Thank you.

33:40 - Thank you.

33:41 - Thank you very much. Thank you.

33:44 - And we will take this

33:45 - under advisement.

33:47 - Thank you very much.

33:52 - Next move on to number 26,

33:56 - which is

33:58 - Howard DOENITZ

34:04 - versus

34:10 - Charles Sax, DMD

34:13 - and the Workers Compensation

34:16 - Appeal Board.

34:21 - And I will do a short summary.

34:24 - As I said, first, so the

34:26 - next case is an appeal

34:29 - from an order of the Workers

34:31 - Compensation Appeal Board

34:33 - that affirmed the decision of

34:34 - a workers compensation judge

34:36 - modifying claimants

34:37 - benefits from total disability

34:40 - to partial disability effective

34:42 - as of the date of an Act

34:45 - 111 impairment rating

34:47 - evaluation and i r e

34:49 - which was December 15th, 2020.

34:53 - The workers compensation

34:54 - judge further ruled

34:55 - the claimant was not entitled

34:57 - to any additional

34:58 - partial disability benefits

35:00 - because he had already been

35:02 - paid 500 weeks of temporary

35:04 - partial disability benefits

35:06 - based on a prior modification

35:09 - pursuant to a

35:11 - December 2nd, 2010 IRP.

35:14 - Claimant argues that the first

35:16 - modification of his worker's

35:18 - compensation benefits was

35:20 - based upon an illegal IRP

35:22 - from 2010 that was performed

35:24 - under a statutory provision

35:27 - that our Supreme Court declared

35:29 - unconstitutional in parts.

35:32 - Claimant argues that

35:33 - the unconstitutional statute

35:35 - was void of an issue and

35:36 - should not have the effect

35:38 - of eliminating a worker's

35:39 - vested right to benefits.

35:41 - Claimant further argues that Act

35:44 - 111 the legislature's response

35:46 - to provides cannot apply

35:48 - retroactively to modify

35:50 - benefits for any injured worker

35:52 - whose rights had vested before

35:54 - the effective date of Act 111,

35:57 - which was October 24th, 2018.

36:01 - According to Claimant,

36:02 - although this Court has rejected

36:03 - a retroactive application

36:05 - of prior, as in other cases,

36:07 - this matter presents

36:08 - extraordinary circumstances

36:11 - which, pursuant to the Supreme

36:13 - Court's decision in Dana Holding

36:15 - Corporation, should

36:16 - warrant a different result.

36:18 - Employer, on the other hand,

36:20 - asserts that claimants arguments

36:22 - have been squarely rejected

36:23 - by this court's

36:24 - decision in Pearson,

36:26 - followed by Hutchinson

36:27 - versus Anvil Township.

36:30 - Pearson held that Act

36:31 - 111 is constitutional

36:33 - as applied to claimants injured

36:35 - before its effective date.

36:36 - If the IRP is performed

36:38 - on or after the effective

36:40 - date of Act 111.

36:44 - One morning may

36:45 - have pleased the court.

36:46 - Dan Segal on behalf of

36:47 - Howard Donuts, the petitioner.

36:50 - And you'll need to

36:51 - speak up. I'm sorry.

36:53 - That's usually not

36:54 - a problem for me.

36:55 - Do you want any rebuttal?

36:57 - Yes, please. 2 minutes. Okay.

36:59 - You have it.

37:00 - To say that the

37:01 - court is familiar

37:03 - with the issue of IRAs, I think

37:04 - would be an understatement.

37:06 - This court has had

37:08 - numerous cases

37:09 - where it has addressed

37:10 - the issue of Erie's.

37:12 - However There is

37:13 - there are two real issues

37:15 - in this case, and one

37:17 - that I'll call the global issue

37:19 - that really has not

37:20 - been addressed

37:22 - in this particular case.

37:24 - You have Dr.

37:25 - Dönitz, who received

37:26 - his five weeks of partial

37:29 - under the what I'll

37:30 - call the products I.R.A.

37:32 - and then when seeking

37:34 - those benefits again

37:35 - under Act 11 was

37:37 - denied those benefits.

37:39 - But I want to take this court

37:41 - back first to the language

37:43 - that used, which is is correct,

37:45 - in the Rose Corp decision,

37:47 - where you refer to the fact

37:49 - that through the use of very

37:52 - careful and specific language,

37:54 - the General Assembly provided

37:56 - employers, insurers with credit

37:59 - for the weeks of compensation,

38:01 - whether total or partial

38:03 - in nature previously paid.

38:05 - And that is an

38:06 - accurate statement.

38:08 - And it is been that statement

38:10 - upon which this court's

38:11 - jurisprudence on IRAs

38:13 - has developed, particularly

38:15 - with regard to retroactivity.

38:18 - But where there remains

38:20 - a significant issue

38:22 - is the fact that, yes,

38:24 - the legislature did draw and

38:26 - was careful in its language

38:29 - what it did and what this

38:31 - court essentially acknowledges

38:34 - without saying so, is

38:36 - incorporate language

38:38 - that would allow the what

38:40 - I'll call the Pratt's IRAs

38:42 - to impact the individual's

38:44 - right to benefits.

38:47 - The Prot series are those that

38:49 - were declared unconstitutional.

38:52 - And there is no

38:52 - case loss support.

38:54 - It's never been cited

38:55 - by any of the litigants

38:56 - or any of the courts

38:58 - for the conclusion that

39:00 - the legislature or may,

39:02 - in their drafting of

39:04 - legislation, be able

39:06 - to essentially give

39:08 - life to and give effect

39:11 - to a statute that had

39:12 - previously been declared

39:15 - unconstitutional

39:16 - and void ab in issue.

39:18 - Justice Wecht, when

39:20 - he wrote his opinion in

39:22 - what's talked about the problems

39:25 - that were part of the

39:27 - what I'll call the pirates IRS.

39:30 - So we started

39:31 - everything anew then.

39:32 - So even the credit that an

39:34 - employer would receive saying

39:36 - it really shouldn't apply, that

39:38 - we start everything brand new.

39:40 - I would say that any cases

39:42 - where challenges are made.

39:45 - Yes. Which has been the position

39:48 - that I and others and this is

39:50 - not my first go around here,

39:53 - Rose Corporation

39:54 - properly said that

39:56 - there you can't apply

39:59 - retroactive fully thereafter.

40:02 - This court, including Pearson,

40:03 - which I believe this court

40:05 - should reconsider,

40:06 - essentially enabled

40:08 - an unconstitutional statute

40:10 - void, have been issue

40:12 - through careful drafting by the

40:14 - legislature to give life to it.

40:17 - If you had another decision

40:19 - declaring some procedure

40:21 - unconstitutional,

40:22 - if, for example,

40:24 - your honors decision

40:25 - relating to school funding,

40:26 - if the Legislature

40:28 - next week passes

40:29 - an act that simply says, well,

40:32 - we have a new funding scheme.

40:34 - But by the way, any and entities

40:36 - that have previously used

40:38 - a funding scheme

40:39 - similar to what was before,

40:41 - that's still permissible.

40:43 - Now in a different though that

40:44 - I mean, employers have paid.

40:47 - So do we just ignore the

40:48 - fact that employers have paid.

40:50 - And isn't the whole purpose

40:52 - of the worker's compensation

40:53 - scheme is to balance between

40:56 - employers and employees

40:57 - that, you know,

40:59 - employees can sue for the right

41:00 - that employers have to pay?

41:03 - There is a balancing,

41:04 - but the balancing is

41:06 - consistently supposed to go on

41:08 - behalf of the injured worker,

41:10 - not on behalf of the employer.

41:12 - The employer is the

41:13 - one that gives up the

41:15 - the the that regains

41:16 - the right not to be sued.

41:18 - The employee then

41:20 - is given the right

41:21 - to be entitled to payment

41:23 - of essentially two things

41:25 - wage losses and

41:26 - medical expenses.

41:28 - In this particular

41:29 - case, Howard Jennette

41:31 - is a dentist who was

41:33 - permanently disabled.

41:35 - He has suffered an injury such

41:37 - that he is in the most serious

41:40 - group of persons

41:41 - injured in Pennsylvania.

41:43 - He had 104 weeks before

41:45 - the IRA could even occur.

41:48 - He then received for 500

41:50 - more weeks, 11.6 years.

41:53 - Three years after that,

41:55 - he still is unable to work.

41:57 - His benefits have

41:58 - not been modified.

41:59 - He is the person that

42:01 - that balancing precisely

42:03 - is intended to benefit him. Yes.

42:07 - How would you see

42:08 - this all playing out

42:09 - with your particular client?

42:11 - In this particular case,

42:12 - this court can hold,

42:14 - and I believe should that.

42:16 - And individuals whose

42:18 - benefits were modified

42:20 - and who was period

42:21 - had exhausted prior

42:23 - to the use of the

42:27 - what I call the act 111

42:28 - IRAs are entitled to those,

42:30 - what, 500 weeks of

42:32 - benefits as a partial.

42:34 - Not suggesting that

42:35 - you can't use the IRA,

42:37 - although there are

42:38 - questions about that.

42:39 - The statute was not enacted

42:41 - consistently with the Statutory

42:43 - Construction Act's mandates

42:45 - on how retroactivity applies.

42:47 - Correct me if I'm

42:48 - wrong, but wasn't the IRA

42:50 - in this particular case

42:52 - less than 50% both times

42:54 - the IRA?

42:55 - I don't recall.

42:56 - I can check for the first.

42:58 - The first yesterday, first was

43:01 - 8% and the second was 17%.

43:03 - But still.

43:04 - Even if we

43:05 - would proceed on the basis that

43:07 - you would ask this court to do,

43:08 - I mean,

43:10 - I don't understand

43:11 - how it would be applicable

43:12 - even to your client here,

43:13 - because it was

43:13 - under 50% both times.

43:15 - But he he has lost

43:16 - the benefit of the act.

43:18 - 111 I agree completely.

43:20 - He is without compensation.

43:22 - He has been without compensation

43:24 - for over three years

43:25 - since this litigation and

43:27 - the worker's comp judge

43:28 - reinstated his benefits

43:29 - only to suspend it.

43:31 - He is the person he is.

43:33 - If there is one

43:34 - classic individual.

43:36 - Are you saying that he should

43:38 - get another 500 plus 104 weeks?

43:41 - He should get another 500.

43:42 - He's already passed

43:44 - the 104 weeks

43:45 - since the enactment of 111.

43:47 - But yes, he should be

43:49 - entitled to those 500 weeks.

43:50 - This in addition to the

43:52 - he had 500 weeks already.

43:54 - He had 500 weeks under a statute

43:58 - that the Supreme

43:59 - Court, in part specifically.

44:01 - For your client, was

44:02 - less than 50% under the

44:04 - you know, so I don't understand

44:06 - how in either case that

44:08 - that he loses here.

44:09 - I don't understand why these

44:10 - are special circumstances

44:12 - in this particular case.

44:14 - Maybe maybe a different case

44:15 - where the claimant

44:16 - had greater than 50%.

44:18 - Of the claimant, a great

44:20 - greater than 50% were not here

44:22 - because the claimant

44:23 - is greater than 50%.

44:24 - There is no modification.

44:26 - This prior to the original IRS

44:29 - and even the modified IRAs,

44:31 - Pennsylvania was purely

44:33 - an earnings loss basis state.

44:35 - We change age to that.

44:37 - And when we changed it initially

44:38 - or when the General Assembly

44:40 - changed it, they

44:41 - did so in a method

44:43 - that the Supreme

44:44 - Court referred to

44:45 - as the most unconstitutional

44:47 - delegation of power.

44:48 - Those were quotes from Justice

44:50 - Wecht during the oral argument,

44:52 - and he said that the enactment

44:54 - of it was such that it was

44:56 - it didn't protect

44:57 - and it was administratively

44:59 - arbitrary and capricious.

45:00 - So how was your client harmed

45:02 - by that illegal act, though,

45:04 - specifically? How was he?

45:05 - He had an IRA that was, as

45:07 - Judge Kobi said, under 50%.

45:10 - So he's in the partial

45:11 - for the 500 weeks.

45:13 - Five her weeks are exhausted

45:15 - at 111 comes along and correct

45:17 - from wrong.

45:18 - It dropped the threshold

45:19 - from 50 to 35, right?

45:22 - Correct.

45:23 - And your guy is

45:24 - still under that 35?

45:26 - Correct.

45:27 - So where's the crux?

45:30 - How was he harmed by all that?

45:32 - There's a technical

45:33 - violation that the

45:34 - the pre prods is

45:36 - unconstitutional.

45:38 - But assuming

45:40 - assuming that,

45:42 - where is your client

45:44 - deprived of some.

45:45 - Right.

45:46 - A client is deprived of his

45:48 - right to the future benefits

45:50 - because it is not

45:52 - a technical issue.

45:54 - Regarding the initial IRA.

45:56 - Would we be here if it was 35%

46:02 - on both pre and post parts?

46:05 - We would if it

46:06 - were post-practice.

46:08 - I would say that no,

46:09 - because he should be entitled

46:11 - to serve for two full benefits.

46:13 - However, the act in the case

46:15 - law is that if you are during

46:17 - your period of 500

46:18 - weeks and that expires,

46:20 - then you are not

46:21 - entitled to reinstatement.

46:22 - After that, you're only entitled

46:24 - reinstatement

46:25 - during that period.

46:26 - But the deprivation here

46:27 - is clear and it would be this.

46:30 - It's still using a statute that

46:32 - was void have been issue.

46:34 - That's not my language.

46:35 - That's the Supreme

46:36 - Court's language.

46:37 - But despite it being

46:38 - void to have an issue,

46:40 - it is being used by

46:42 - this court primarily

46:44 - because the Supreme

46:45 - Court has not yet agreed.

46:46 - But used by this court.

46:47 - But, you know, isn't

46:48 - the General Assembly

46:50 - that picked up the reins

46:51 - by enacting Act 111?

46:53 - So therefore, if any

46:54 - change needs to be made,

46:56 - it needs to go

46:56 - back to the General

46:57 - Assembly that they

46:58 - made a policy statement.

47:00 - I know, because

47:02 - in their decision

47:05 - and as this court said in Rose,

47:07 - they used careful drafting.

47:09 - They didn't use the magic

47:10 - words that it was if it was a

47:13 - if they were modified

47:14 - benefits were modified

47:15 - under a prats I Ari just as

47:17 - they could not write a statute.

47:20 - Acknowledging the the authority

47:22 - of the General Assembly

47:23 - and not this court.

47:24 - When we state what the

47:25 - General Assembly stated.

47:28 - No, because the General Assembly

47:30 - has no authority to enact

47:32 - anything that is

47:33 - unconstitutional

47:34 - or to allow something

47:35 - that was unconstitutional

47:37 - previously to be

47:39 - used in the future,

47:41 - as in this case, to take

47:42 - away individual's rights.

47:44 - There are no cases that say

47:46 - that a previously

47:48 - unconstitutional statute

47:49 - could be applied

47:51 - to anything else.

47:52 - If you had a situation where

47:54 - the General Assembly enacted

47:57 - a statute that allowed

47:59 - for jury challenges

48:01 - but didn't say based

48:02 - on, for example, race,

48:04 - but it was implicit

48:06 - in there, this court

48:07 - wouldn't have allowed that.

48:09 - And you have

48:10 - that same situation.

48:11 - So you basically saying

48:13 - Act 111 is unconstitutional.

48:15 - No, I am saying that Act 111,

48:19 - the the application of it to

48:21 - allow the unconstitutional

48:25 - modification of

48:26 - benefits to deprive

48:28 - a claimant, an injured

48:29 - worker of wages.

48:31 - Is inconsistent with the act.

48:34 - The Legislature didn't say,

48:36 - but it's implicit

48:37 - in every statute

48:38 - that the benefits that

48:39 - had to have been reduced

48:41 - had to have been done.

48:43 - The credit that the

48:43 - employer is entitled

48:45 - to had to have

48:46 - been done legally.

48:48 - Well, those benefits

48:49 - were done under a statute

48:51 - that this court initially

48:53 - and then the Supreme Court

48:55 - agreed were unconstitutional.

48:57 - They were modified

48:58 - based on a process

49:00 - that was unconstitutional,

49:01 - a delegation of powers.

49:03 - That's improper.

49:04 - But now, because of careful

49:06 - drafting, we are in a situation

49:09 - where the unconstitutional

49:11 - deprivation of rights

49:14 - is being used to say to

49:15 - the most serious workers.

49:18 - The people. That these cases.

49:19 - Saying unconstitutional

49:20 - deprivation of rights.

49:21 - But if you go back to

49:22 - what's the reason

49:23 - it was unconstitutional was

49:24 - because the General Assembly

49:26 - gave to the AMA the authority

49:28 - to determine what to use as a

49:32 - guiding post,

49:33 - you know, in making

49:34 - the assessments correct.

49:36 - And the Supreme Court said

49:38 - that that was the most

49:39 - egregious example

49:40 - they had seen of it, both in

49:41 - their opinion and during the.

49:43 - General Assembly

49:44 - came back and said,

49:45 - okay, this is how we've

49:46 - looked at everything.

49:46 - This is how we're going

49:47 - to proceed going forward.

49:48 - We put in or,

49:49 - you know, rubber stamp on it

49:51 - that we approve of all of this

49:53 - and therefore there is

49:54 - no delegation of authority.

49:55 - But the General Assembly

49:56 - doesn't have the authority

49:58 - to override it to

49:59 - and to invalidate

50:01 - and in an unconstitutional

50:03 - piece of legislation.

50:05 - That's the distinction.

50:06 - And that's what they did here

50:08 - or that's what they

50:09 - attempted to do.

50:09 - And That's what has

50:10 - happened in practice.

50:11 - Going back to your

50:12 - original question,

50:13 - the Workers Compensation

50:15 - Act is designed to provide

50:17 - a safety net for

50:19 - injured workers.

50:20 - And yet here the legislature

50:23 - tried to modify how

50:24 - that safety net is created.

50:27 - And this court and the

50:28 - Supreme Court said,

50:30 - no, the process you

50:31 - used is not proper.

50:33 - And then after that was said,

50:36 - the General Assembly

50:37 - enacted legislation that enabled

50:40 - and that this Court has said

50:42 - allows you to use

50:43 - the same process

50:44 - that we said was

50:45 - unconstitutional.

50:46 - It is now permissible to use

50:48 - the unconstitutional process

50:51 - to take away rights.

50:52 - In the case of Howard Dean, it's

50:54 - all of his future

50:55 - benefits for wage losses.

50:56 - Thank you. Thank you.

50:57 - Thank you.

51:05 - Good morning, justices.

51:08 - I don't have any

51:09 - brilliant arguments to make here

51:11 - because I think you've heard

51:12 - this case multiple times before.

51:14 - You've ruled.

51:16 - And I would submit

51:17 - that everything

51:18 - that was done here in

51:19 - terms of the judge's decision,

51:21 - the appeal board opinion,

51:22 - it conforms with the law.

51:24 - So you don't think there's.

51:25 - Anything that makes this.

51:26 - A matter of first impression.

51:28 - At all, this. Case? I do not

51:30 - know.

51:31 - I don't think so.

51:32 - You know, and and not to

51:33 - say that counsel hasn't made

51:35 - good arguments in his brief

51:36 - about the humanitarian nature

51:38 - of the act, etc..

51:39 - But there has been

51:40 - a bargain struck here

51:42 - with Act 111 and

51:43 - that is not invalidated.

51:46 - The I.R.S.

51:46 - procedure, it did

51:48 - not make a ruling

51:49 - on mischaracterizing

51:50 - the partial disability

51:52 - benefits are paid under parts

51:54 - for those IRAs.

51:55 - Didn't invalidate them.

51:56 - And that's what that's what

51:57 - we're really talking about here.

51:59 - So the legislature in 2018

52:01 - comes up with a new proposal

52:03 - and there is a bargain made

52:04 - in that there's an exchange.

52:06 - We reduce the

52:07 - threshold from 50% to 35,

52:10 - and we allow the partial

52:12 - disability benefits to be paid

52:14 - under prior series to

52:16 - still be characterized

52:18 - as partial disability benefits.

52:19 - The claimant did collect

52:21 - 104 weeks of total

52:22 - 500 weeks of partial.

52:25 - He stipulate that

52:26 - that he had received

52:26 - those benefits

52:27 - and those benefits

52:28 - ended in June of 2020.

52:30 - And so I think this was

52:31 - correctly decided by the judge.

52:33 - I think it was correctly

52:34 - decided by the appeal board.

52:35 - And I don't see there any

52:37 - way that that's overturned here.

52:40 - Repeated decisions from

52:41 - this court have found act 111

52:43 - to be constitutional.

52:44 - Repeated decisions from

52:45 - this court have said that

52:47 - those benefits were paid

52:48 - as partial disability benefits.

52:50 - Under the priorities the

52:51 - approach invalidated,

52:53 - IRAs are still partial

52:54 - disability benefits.

52:56 - So on that basis, I

52:58 - ask that the opinions

53:00 - of the judge, the appeal

53:01 - board, be affirmed.

53:03 - Thank you.

53:05 - You get the award for

53:07 - the shortest argument.

53:08 - Congratulations

53:10 - the first time here.

53:12 - Thank you.

53:19 - Thank you.

53:21 - In Dana holding

53:23 - the Supreme Court addressed

53:24 - the concept called equitable

53:26 - balancing, a concept rarely used

53:29 - in Pennsylvania jurisprudence.

53:32 - We have to presume.

53:33 - I want. To jump in

53:34 - and ask. You, I've.

53:36 - I've wondered what.

53:36 - A fact pattern looks

53:37 - like where equitable

53:38 - holding would be triggered.

53:39 - But in this instance, both

53:41 - both times the claimant.

53:42 - Was under the 30. 5%.

53:44 - So what facts trigger the

53:46 - equitable holding in this

53:47 - case.

53:48 - The need to look

53:49 - into that section?

53:51 - Well, I think they

53:52 - were present here.

53:53 - They're present

53:54 - in the Riley case,

53:54 - which this court ruled

53:56 - against the claimant.

53:57 - I was counsel in that case.

54:00 - The equitable balancing

54:01 - is not the nature

54:03 - of the number of weeks

54:05 - that the legislature decided

54:07 - was the appropriate

54:09 - number for a modification.

54:11 - The equitable balancing

54:12 - was in the context in Dana

54:14 - holding of when the

54:16 - when the decision in pirates

54:19 - could be applied to

54:21 - retroactively permit

54:23 - an injured worker to

54:25 - resume or to receive benefits.

54:28 - Well that mostly

54:29 - analyzing timing.

54:30 - No, not

54:32 - I don't understand

54:33 - what's extraordinary

54:34 - about your case didn't

54:35 - your client wait three.

54:36 - Years before he appealed after.

54:41 - After practice was decided.

54:44 - He there was the time.

54:46 - But so what's extraordinary

54:47 - about this case to

54:49 - invoke. Equitable principles.

54:51 - What's extraordinary is

54:53 - that he is under one statute

54:56 - being deprived of any

54:58 - compensation based upon

55:00 - a prior under the application

55:03 - of an unconstitutional statute.

55:06 - So your position is he

55:08 - gets more substantive rights

55:11 - because there was a

55:12 - procedure rule failure

55:15 - that was unconstitutional

55:16 - under the prior statute

55:18 - found by prods, which

55:20 - basically reloads his 500.

55:23 - Well, I would agree, except

55:25 - I don't believe it's

55:26 - a procedural failure.

55:27 - This was a substantive failure.

55:29 - It was the enactment by

55:31 - the legislature of statute

55:33 - that was substantively

55:35 - unconstitutional

55:37 - because of how it was

55:38 - created at the original.

55:40 - Act and the unconstitutional

55:42 - part of that was a

55:44 - delegation, correct?

55:46 - Well, how would this case be

55:47 - different from all the others?

55:49 - I don't believe it

55:50 - should be, but I'm not.

55:52 - So equitable. Balancing.

55:54 - But equitable balancing.

55:56 - Then, under your interpretation

55:58 - of equitable balancing,

56:00 - that would apply

56:01 - to all all the cases.

56:03 - Well, I believe it

56:04 - applies to cases,

56:05 - particularly where the

56:07 - issue was preserved

56:08 - or where there are the most

56:10 - extraordinary circumstance.

56:11 - What's most what's

56:12 - so extraordinary?

56:13 - I guess that's my

56:14 - question you said

56:15 - or the most extraordinary

56:16 - circumstances.

56:19 - I'll tell you,

56:20 - to paraphrase the Supreme Court,

56:21 - you know what, when you see it

56:24 - in that analogy.

56:26 - But the reality is here you

56:28 - have the most seriously

56:30 - injured type of person,

56:31 - someone who was not

56:32 - returning to work after

56:34 - 12 and a half, 15 years.

56:37 - And yet he's being

56:38 - deprived of his wage losses,

56:41 - which is what these three

56:42 - individuals need to survive,

56:44 - not because of anything he did,

56:47 - but because of the

56:48 - application of a statute

56:50 - that was unconstitutional

56:52 - and void from the moment it was

56:54 - it was enacted and its effect

56:56 - on a second statute where

56:58 - it should have no effect.

57:01 - I want to jump in.

57:02 - So I admire your advocacy

57:03 - and I can appreciate

57:05 - your passion and

57:06 - expertize in this area.

57:08 - So knowing that you

57:09 - practice in this area a lot,

57:11 - it sounds like what I hear

57:12 - you saying is your client

57:14 - already received five

57:15 - he received 500 weeks.

57:17 - You think he should

57:18 - receive 500 more?

57:19 - Do you have any clients

57:20 - that would say to you

57:21 - if they knew this, that they

57:22 - felt that they were treated

57:23 - unequally because this client

57:26 - got 500 weeks two times?

57:29 - It's possible.

57:31 - We have I've had probably half

57:33 - a dozen clients who have

57:35 - already been before this court

57:38 - with not a

57:39 - favorable result from

57:40 - the court or the other.

57:42 - Where you have those

57:43 - circumstances, it's to me

57:45 - there is a dividing line

57:46 - among claimants, counsel.

57:48 - There are we have

57:49 - different philosophies,

57:51 - but I believe cases

57:52 - that we're still in litigation

57:54 - or cases with extraordinary

57:56 - circumstances do warrant

57:58 - the court's analysis.

57:59 - The language of

58:00 - equitable balancing

58:01 - that's in the Supreme Court

58:02 - decision has been given no

58:04 - no credence in any decision.

58:06 - So counsel of the

58:07 - Supreme Court man.

58:09 - No, go ahead. Yes.

58:10 - I don't believe the Supreme

58:12 - Court did that extensive

58:14 - analysis of equitable balancing

58:16 - something that they rarely do

58:18 - purely for their own

58:20 - academic reasons.

58:22 - I believe they did it

58:23 - to give guidance to courts,

58:24 - to workers comp judges

58:26 - as to how they should

58:28 - consider certain cases.

58:30 - But that has not been accepted.

58:33 - That's what I was

58:34 - going to ask you.

58:34 - So your

58:35 - and I guess you

58:36 - really answered my in

58:37 - saying that you don't believe

58:39 - that the Supreme Court

58:40 - took into consideration

58:43 - injuries or the

58:44 - extent of injuries

58:45 - in reaching this deal

58:48 - that counsel

58:49 - characterize this as.

58:52 - That would be fair.

58:53 - I mean, I if if I can say

58:56 - so sort of judiciously now,

58:59 - no pun intended, you know, I

59:01 - would have hoped that in Dana

59:03 - holding that the Supreme Court

59:05 - would have given this court

59:06 - workers, contractors

59:08 - and all of us more clarity,

59:10 - because as you

59:11 - can see, we're here

59:13 - and we've been here on a

59:14 - variety of nuanced issues

59:16 - that if they had given better

59:18 - guidance, we may not be here,

59:20 - but now it falls

59:21 - again to this court.

59:22 - Are you asking us,

59:23 - under the principle of

59:25 - the equitable balancing,

59:27 - to basically rewrite the statute

59:29 - and give your client an extra

59:30 - five weeks of

59:31 - partial disability?

59:33 - No, I'm asking this

59:35 - court to interpret Act 111

59:38 - the way it should

59:39 - have been written

59:40 - and what is clearly

59:41 - implicit in its drafting,

59:43 - which is that the only benefits

59:45 - that should have been credited

59:47 - are those that were

59:48 - legally credited.

59:50 - Legally credited

59:51 - are not the benefits

59:53 - that were suspended based

59:54 - on an unconstitutional irony.

59:56 - Well, see, your client

59:57 - pay all the money back.

59:58 - If we're going to

59:59 - 930 start over again.

01:00 - 02.532 It wouldn't be paying back.

01:00 - 03.610 He would be getting

01:00 - 04.867 additional benefits.

01:00 - 05.969 He would have been

01:00 - 07.995 receiving benefits ongoing

01:00 - 09.872 for another 500 weeks.

01:00 - 11.541 There's nothing to give back.

01:00 - 12.572 It's not as though

01:00 - 13.610 he was overpaid.

01:00 - 14.611 He's been deprived.

01:00 - 16.346 Thank you.

01:00 - 19.349 Thank you very much.

01:00 - 26.656 Next on the list is number

01:00 - 30.960 27, the dairy

01:00 - 33.805 DEO petitioner versus the state

01:00 - 36.199 board of Osteopathic Medicine.

01:00 - 39.369 Respondent.

01:00 - 41.838 And I will

01:00 - 45.608 give a brief introduction.

01:00 - 48.845 You may be seated.

01:00 - 50.163 This case presents a

01:00 - 52.281 petition for review of a final

01:00 - 53.887 adjudication of the State

01:00 - 55.952 Board of Osteopathic Medicine,

01:00 - 58.299 which denied petitioners

01:00 - 59.789 petition to reinstate

01:00 - 01.575 his osteopathic medical

01:01 - 03.292 license on the basis

01:01 - 04.700 the petitioner pleaded

01:01 - 05.795 nolo contendere

01:01 - 07.273 to one count of indecent

01:01 - 08.665 assault of a patient,

01:01 - 11.061 the board relied on

01:01 - 12.502 statutory language

01:01 - 16.773 Section 3113 Subsection

01:01 - 20.843 D of Title 63, Act 53,

01:01 - 23.090 providing that a licensing

01:01 - 24.480 board may not issue

01:01 - 26.282 a license or, quote,

01:01 - 29.085 otherwise allow an individual

01:01 - 30.273 to practice as a

01:01 - 32.288 health care practitioner.

01:01 - 34.554 If the individual has been

01:01 - 36.826 convicted of a sexual offense

01:01 - 39.251 and, quote, the board held

01:01 - 41.864 and it argues here on appeal

01:01 - 43.061 that it had no

01:01 - 44.600 discretion to deviate

01:01 - 46.584 from the unequivocal

01:01 - 49.172 language of section 3113

01:01 - 50.532 D Firing Petitioner

01:01 - 52.475 from practicing medicine.

01:01 - 55.357 Petitioner maintains that

01:01 - 57.480 Section 3113 Subsection

01:01 - 59.612 D, which became effective

01:01 - 01.751 on December 28th, 2020,

01:02 - 03.482 does not apply to him

01:02 - 05.288 since he held an existing

01:02 - 07.090 medical license prior to the

01:02 - 09.158 effective date of the statute.

01:02 - 11.036 Petitioner argues it

01:02 - 12.962 affects only the eligibility

01:02 - 15.198 of new applicants for a license.

01:02 - 17.231 There is also no

01:02 - 18.901 language in Act 53,

01:02 - 20.227 he argues, making the

01:02 - 21.871 new provision retroactive.

01:02 - 24.410 For this reason, Petitioner

01:02 - 26.676 argues retroactive application

01:02 - 28.911 to his license violates

01:02 - 30.331 his rights to procedural

01:02 - 32.115 and substantive due process.

01:02 - 34.003 Finally, Petitioner

01:02 - 35.251 argues that Section

01:02 - 38.254 3113 D is an ex post facto law.

01:02 - 40.012 The board asserts

01:02 - 41.491 that the statute is clear

01:02 - 42.373 and unequivocal

01:02 - 43.559 in its application

01:02 - 44.448 to all health

01:02 - 45.895 care practitioners,

01:02 - 47.008 and that the section

01:02 - 48.297 satisfies due process

01:02 - 50.133 says in all respects.

01:02 - 52.235 It also

01:02 - 54.151 maintains that the application

01:02 - 56.139 is not a punitive consequence

01:02 - 57.256 protected by the

01:02 - 58.941 ex-post facto clauses,

01:03 - 04.046 and with that we may proceed.

01:03 - 05.948 Good morning, Your Honor.

01:03 - 07.116 My name is David Dearden.

01:03 - 07.991 I have the privilege

01:03 - 08.918 of representing Dr.

01:03 - 11.320 Muhammad Cordery in this matter.

01:03 - 12.918 I'd like to introduce

01:03 - 13.723 to the court

01:03 - 15.040 Lawrence Fisher, who

01:03 - 16.893 is a Villanova law student

01:03 - 17.741 who's assisted

01:03 - 18.961 me with the brief.

01:03 - 19.695 Wonderful.

01:03 - 22.632 May I please support.

01:03 - 24.411 I'd like to just describe

01:03 - 25.201 a couple of things

01:03 - 25.943 about the hearing

01:03 - 26.869 that was presented,

01:03 - 28.404 because it's important.

01:03 - 29.915 Dr. Guidry testified that

01:03 - 31.374 he has been practicing

01:03 - 32.642 for over 20 years.

01:03 - 33.666 He's not an applicant

01:03 - 34.844 for a medical license.

01:03 - 36.512 He described the incident

01:03 - 37.626 with the patient that

01:03 - 38.748 led to the charges.

01:03 - 39.689 The reason that

01:03 - 41.017 he agreed to a plea

01:03 - 42.708 and the probation and house

01:03 - 44.720 confinement that he underwent.

01:03 - 46.198 He testified that had

01:03 - 47.590 he known about Act 53,

01:03 - 48.484 which he couldn't

01:03 - 49.492 have at the time,

01:03 - 50.526 he would not have agreed to.

01:03 - 51.669 The plea would have

01:03 - 53.062 risked going to trial

01:03 - 54.375 because he always

01:03 - 55.898 intended to return to practice.

01:03 - 57.992 He negotiated the right in the

01:03 - 59.769 consent agreement with the board

01:04 - 01.771 to petition for reinstatement.

01:04 - 03.046 So he has a contractual

01:04 - 04.106 right to do that.

01:04 - 05.838 Lauren Casler, a licensed

01:04 - 07.577 professional counselor,

01:04 - 09.156 certified sex offender

01:04 - 10.479 treatment provider

01:04 - 12.322 with 20 years of experience

01:04 - 14.317 ence, was assigned to evaluate

01:04 - 15.751 and recommend treatment for Dr.

01:04 - 17.650 Kadiri by the Delaware County

01:04 - 19.622 Probation and Parole Office.

01:04 - 21.107 She was a contractor,

01:04 - 22.158 not an employee,

01:04 - 23.141 but she, under

01:04 - 25.261 subpoena, testified that Dr.

01:04 - 26.078 Guidry was safe

01:04 - 27.396 to return to practice.

01:04 - 28.899 And that's why the hearing

01:04 - 30.700 officer examiner in this case

01:04 - 32.475 agreed with that testimony

01:04 - 34.203 and reinstated the license.

01:04 - 35.460 The Commonwealth did

01:04 - 36.806 not put on any witnesses.

01:04 - 38.527 And I mention all this because

01:04 - 39.909 in the Commonwealth's brief

01:04 - 42.347 they ask that if you find

01:04 - 44.881 3113 D does not apply to Dr.

01:04 - 45.514 Guidry,

01:04 - 47.412 that the case be

01:04 - 48.718 remanded for a hearing.

01:04 - 50.849 We oppose that because

01:04 - 52.488 he's they've already

01:04 - 54.173 been given plenty of opportunity

01:04 - 55.391 to review the record.

01:04 - 56.361 They didn't put

01:04 - 57.260 on any testimony.

01:04 - 58.527 What the bureau didn't.

01:04 - 00.930 And the board has no.

01:05 - 03.064 They waited a whole year from

01:05 - 04.901 the time of the adjudication

01:05 - 06.631 until they reversed

01:05 - 08.004 using Act 53,

01:05 - 09.852 which they knew about making

01:05 - 11.774 us wait an additional year.

01:05 - 13.409 And now we're, of course, here.

01:05 - 14.541 So I don't think that's

01:05 - 15.878 appropriate for a remand.

01:05 - 18.427 If you find and I hope you do

01:05 - 21.150 the 3113 D does not apply to Dr.

01:05 - 23.063 Guidry idea that this court

01:05 - 25.054 reinstate his license. Mr.

01:05 - 27.123 Dearden, just so I'm clear that

01:05 - 28.989 the Department knew all

01:05 - 30.793 along that you were attacking

01:05 - 33.146 the validity and applicability

01:05 - 35.665 of of this particular statute.

01:05 - 36.933 Yes, Your Honor. Okay.

01:05 - 37.908 We made that brief, so

01:05 - 39.335 that's not a surprise of that.

01:05 - 42.405 And the department made a choice

01:05 - 44.584 not to present witnesses

01:05 - 46.342 even with that in play.

01:05 - 47.677 Couldn't say.

01:05 - 50.012 Was it if we were to say that

01:05 - 52.590 that he should not

01:05 - 54.016 be precluded from

01:05 - 55.026 or this should not

01:05 - 56.552 apply, then you're saying

01:05 - 57.578 the individual assessment

01:05 - 58.654 has already taken place?

01:05 - 00.856 That's right. I am.

01:06 - 01.666 They didn't take

01:06 - 02.892 any criticism with it.

01:06 - 04.160 You'll note when they just

01:06 - 05.584 they issued their decision,

01:06 - 06.963 they said, we reject Dr.

01:06 - 09.116 Mr. Blackburn's decision, but

01:06 - 11.233 they didn't provide any at all.

01:06 - 12.301 And they just

01:06 - 14.036 said Act 53 applies

01:06 - 15.541 as far as the legal

01:06 - 16.605 issues are concerned.

01:06 - 17.502 I have four that I

01:06 - 18.407 want to mention.

01:06 - 19.859 The first is that my

01:06 - 21.610 reading of the statute

01:06 - 24.730 indicates that it applies

01:06 - 26.349 only to applicants.

01:06 - 30.086 And I'm going to read it

01:06 - 30.720 and I'm going to

01:06 - 31.921 pretend like the first part.

01:06 - 33.255 I'm yelling.

01:06 - 34.023 Okay.

01:06 - 35.443 When determining

01:06 - 37.793 eligibility for licensure

01:06 - 39.355 as a health care

01:06 - 41.063 practitioner comma,

01:06 - 42.852 the whole focus is

01:06 - 44.433 determining eligibility.

01:06 - 46.822 A licensing board or licensing

01:06 - 48.437 commission may not issue

01:06 - 50.244 a license registration

01:06 - 52.141 certificate or permit

01:06 - 53.275 or otherwise

01:06 - 54.832 allow an individual to practice

01:06 - 56.245 as a health care provider.

01:06 - 58.393 If the individual has been

01:06 - 00.716 convicted of a sexual offense,

01:07 - 01.949 the otherwise allowed

01:07 - 03.719 language the way I read this

01:07 - 06.837 modifies eligibility

01:07 - 08.057 for licensure.

01:07 - 08.958 That's it.

01:07 - 10.359 It doesn't jump up

01:07 - 12.373 all of a sudden and allow this

01:07 - 14.663 to cover licensed practitioners.

01:07 - 16.246 This individual was licensed

01:07 - 17.933 or is issued, has been issued

01:07 - 19.531 and is now just in a state

01:07 - 21.137 of perpetual suspension.

01:07 - 22.538 Is that right?

01:07 - 24.149 Well, the license

01:07 - 26.108 was issued in 1994.

01:07 - 29.378 It was suspended by the consent

01:07 - 32.782 agreement in 2017, I believe.

01:07 - 35.051 And right now, it's it

01:07 - 37.353 was denied reinstatement.

01:07 - 38.688 So it's sitting there kind of

01:07 - 40.089 in limbo at the present time.

01:07 - 43.626 Counsel. What do you.

01:07 - 44.757 I want to make sure

01:07 - 45.895 I understood you.

01:07 - 49.031 Is now the.

01:07 - 51.208 Are they precluded now from

01:07 - 53.636 exercising their discretion.

01:07 - 54.570 To revoke his.

01:07 - 56.417 Practice under the Osteopathic

01:07 - 57.840 Medical Practice Act.

01:07 - 59.642 And Criminal History.

01:07 - 01.164 Record, Infirm Information

01:08 - 02.812 Act following a conviction

01:08 - 04.814 for a crime of moral turpitude.

01:08 - 06.003 Did you say they precluded

01:08 - 07.016 from doing that? No.

01:08 - 08.384 No. So there's still.

01:08 - 09.385 Another mechanism

01:08 - 11.383 that probably would have

01:08 - 14.223 been the best way to go on this.

01:08 - 15.273 Well, I certainly hope

01:08 - 16.092 they don't do that.

01:08 - 17.975 I don't know how

01:08 - 19.195 they're going to proceed.

01:08 - 21.130 But there is a certain amount

01:08 - 22.336 of fairness in these

01:08 - 24.033 cases and a certain amount

01:08 - 26.020 they've had their

01:08 - 28.137 opportunities, and that would be

01:08 - 30.357 kind of being tricky

01:08 - 31.974 to go about it that way

01:08 - 34.443 if when the record is produced,

01:08 - 35.311 they don't

01:08 - 36.846 put on their own expert to say,

01:08 - 37.561 we don't think

01:08 - 38.747 he's safe to practice

01:08 - 40.406 because of a moral turpitude

01:08 - 42.251 issue, which they did not do.

01:08 - 44.076 I mean, we just keep

01:08 - 45.754 going and going in circles

01:08 - 47.948 and try to find a way to stop

01:08 - 49.625 somebody from practicing.

01:08 - 50.893 That's really not fair.

01:08 - 51.516 I'd be back in

01:08 - 52.595 front of you, I think.

01:08 - 54.096 Counsel, can I just ask,

01:08 - 55.607 was the consent agreement

01:08 - 57.066 with the board, wasn't

01:08 - 58.155 that to indefinitely

01:08 - 59.635 suspend the license? Yes.

01:08 - 01.403 With the right, however,

01:09 - 03.063 to petition for reinstatement

01:09 - 04.673 after some period of time.

01:09 - 06.208 We waited until the

01:09 - 08.010 criminal probation was over.

01:09 - 09.367 We checked with the

01:09 - 10.412 probation and parole,

01:09 - 11.455 found a favorable witness

01:09 - 12.381 who said he was safe

01:09 - 13.382 to practice.

01:09 - 14.240 Filed a petition

01:09 - 15.484 with the petition on.

01:09 - 16.876 Had lots of character

01:09 - 18.654 witnesses come in and presented

01:09 - 19.348 a case that he was

01:09 - 20.089 safe to practice.

01:09 - 23.092 So the statute

01:09 - 24.829 that I'm talking about that

01:09 - 26.896 we're here to talk about 3113.

01:09 - 28.787 Every single part of that

01:09 - 30.833 statute talks about applicants

01:09 - 33.440 a qualification for

01:09 - 35.571 be applicant CE

01:09 - 37.506 meets requirements for issuance.

01:09 - 39.243 We've already covered d

01:09 - 41.443 e may be granted a license.

01:09 - 43.145 Every single one of them.

01:09 - 45.512 This is clearly an

01:09 - 48.150 applicant statute.

01:09 - 49.658 Can it be used in a

01:09 - 51.220 retroactive fashion?

01:09 - 52.621 I've argued no.

01:09 - 53.822 There's nothing in the statute

01:09 - 55.684 that says that it should be

01:09 - 57.693 given a retroactive effect.

01:09 - 59.495 And therefore, under one

01:09 - 01.310 CSA 1926, it's not to

01:10 - 03.566 be provided in that way.

01:10 - 05.064 The hearing officer

01:10 - 06.202 in this case, Mr.

01:10 - 07.148 Blackburn, agreed

01:10 - 08.270 with our position,

01:10 - 10.804 and that's why he ruled in

01:10 - 13.342 the face of 52, 53 that Dr.

01:10 - 15.411 Goodrich could be reinstated.

01:10 - 17.276 He chose the Linus case, the

01:10 - 19.415 Brown case, the Thailand case,

01:10 - 21.328 to argue that there was a

01:10 - 22.952 vested right in the license.

01:10 - 25.988 The board says, Well,

01:10 - 27.604 Baron and Oliver indicate

01:10 - 29.258 there's no vested right.

01:10 - 31.299 But I point out to the court

01:10 - 32.861 that in those two cases,

01:10 - 35.389 they both deal with applicants,

01:10 - 37.166 not license physicians.

01:10 - 38.754 So I think there's

01:10 - 39.902 a bit of a difference.

01:10 - 41.237 The fact that

01:10 - 42.538 there was a consent agreement

01:10 - 43.836 that gave a contract

01:10 - 45.207 rights in this case

01:10 - 46.858 to allow for a petition

01:10 - 48.010 for reinstatement.

01:10 - 49.426 You have someone

01:10 - 50.813 who has essentially

01:10 - 52.214 a vested right, a property

01:10 - 53.515 right in their license

01:10 - 56.159 indicates that the statute

01:10 - 57.886 should not be applied

01:10 - 59.955 retroactively to Dr. Guidry.

01:11 - 01.992 So I think we win on

01:11 - 03.192 those two arguments

01:11 - 04.374 alone without getting to

01:11 - 05.761 the constitutional issues,

01:11 - 08.543 which are somewhat difficult

01:11 - 11.066 because they're complicated.

01:11 - 13.447 Section 3113 D

01:11 - 16.505 creates an ear rebuttable

01:11 - 20.342 that any applicant for licensure

01:11 - 22.707 who has a sexual offense in

01:11 - 25.281 his or her history is so likely

01:11 - 27.179 to re-offend with patients

01:11 - 29.451 that unless those individuals

01:11 - 30.845 are forever barred

01:11 - 32.421 from treating patients,

01:11 - 33.719 the Pennsylvania

01:11 - 35.357 public will be an addict.

01:11 - 37.592 Unacceptable risk of suffering

01:11 - 40.095 from abuse by those individuals,

01:11 - 41.180 no matter the

01:11 - 42.631 nature of the crime,

01:11 - 44.379 the impact on the victim,

01:11 - 45.968 its remoteness and time

01:11 - 47.767 lack of criminal history after

01:11 - 49.204 the date of the conviction

01:11 - 50.621 and the rehabilitative

01:11 - 52.041 efforts of the individual

01:11 - 54.276 following the conviction.

01:11 - 55.891 I say that justification

01:11 - 57.379 and cannot be viewed

01:11 - 59.155 as rational, measured

01:11 - 00.649 or anything other

01:12 - 01.730 than a punitive

01:12 - 03.686 legislative overreaction.

01:12 - 07.289 I looked at the cases of of J.B.

01:12 - 09.554 where the Supreme Court declared

01:12 - 11.593 unconstitutional the sauna act

01:12 - 13.570 requiring lifetime registration

01:12 - 15.364 by juvenile sex offenders.

01:12 - 17.294 It found the presumption

01:12 - 19.034 is not universally true

01:12 - 20.645 and other means existed

01:12 - 22.538 to provide an individualized

01:12 - 24.173 risk assessment.

01:12 - 26.158 In Johnson versus Allegheny,

01:12 - 28.577 this court found lifetime ban on

01:12 - 30.624 employees convicted of homicide

01:12 - 32.414 offenses under the public

01:12 - 35.370 school code was

01:12 - 37.052 unduly oppressive

01:12 - 38.244 and patently beyond the

01:12 - 39.755 necessities of the offense.

01:12 - 41.571 In the Warren County

01:12 - 42.725 versus Roberts.

01:12 - 43.937 This court found

01:12 - 45.494 that a lifetime ban

01:12 - 47.406 from hiring anyone convicted

01:12 - 48.764 of aggravated assault

01:12 - 50.055 to work with children

01:12 - 51.600 to be unconstitutional.

01:12 - 53.226 Finally, in Peake versus

01:12 - 54.670 Commonwealth, this court

01:12 - 56.155 found that a lifetime

01:12 - 57.506 ban on employment

01:12 - 59.164 under the older Adult

01:12 - 00.909 Protective Services Act

01:13 - 02.846 for conviction of a list of

01:13 - 04.747 crimes was unconstitutional.

01:13 - 06.886 All of these cases show

01:13 - 08.851 that a blanket prohibition

01:13 - 10.695 against a citizen's ability

01:13 - 12.821 to work in a certain capacity

01:13 - 15.103 that lacks fine tuning treating

01:13 - 17.126 all enumerated client crimes

01:13 - 18.894 the same regardless of

01:13 - 20.729 their vintage or severity.

01:13 - 22.114 The statute will violate

01:13 - 23.465 the individual due process

01:13 - 24.405 rights under the

01:13 - 26.001 Pennsylvania Constitution

01:13 - 27.535 and Pennsylvania law, and

01:13 - 29.238 that is one of our arguments.

01:13 - 31.557 The record of this

01:13 - 32.941 case established the Dr.

01:13 - 34.498 Cadbury proved that

01:13 - 36.612 certain health care providers

01:13 - 39.261 can who have a sexual offense

01:13 - 41.750 in their background can be safe.

01:13 - 44.520 The practice. Therefore, Dr.

01:13 - 45.360 Goodrich contends

01:13 - 46.555 that as applied to him

01:13 - 48.151 3113 D sweeps

01:13 - 50.492 unnecessarily, broadly

01:13 - 52.226 and violates his substantive

01:13 - 53.328 due process rights

01:13 - 55.099 under the Pennsylvania

01:13 - 56.131 Constitution.

01:13 - 58.000 Continuing on,

01:13 - 59.064 Dr. Goodyear has

01:13 - 00.269 made a clear showing.

01:14 - 04.072 The 3113 de violates the ex post

01:14 - 05.127 facto law and the

01:14 - 06.875 Pennsylvania Constitution.

01:14 - 09.219 That law acts as a

01:14 - 12.080 restraint on the legislature

01:14 - 14.092 by requiring it to provide

01:14 - 16.084 fair warning to individuals

01:14 - 17.877 as to what will result in

01:14 - 19.822 a sanction in the future.

01:14 - 21.594 And that principle

01:14 - 23.492 resonates here because Dr..

01:14 - 25.112 He had no notice,

01:14 - 26.595 no advance notice,

01:14 - 29.561 that his nolo contendere plea

01:14 - 32.234 to a sexual offense in 2017

01:14 - 33.453 could possibly

01:14 - 34.970 interfere with his efforts

01:14 - 37.039 to have his license reinstated.

01:14 - 37.613 Counsel Do we

01:14 - 38.640 have to get into the.

01:14 - 40.130 Constitutional issues at

01:14 - 41.877 all considering that there

01:14 - 42.878 a very clear.

01:14 - 46.815 Retroactive provisions?

01:14 - 48.159 Didn't your client's

01:14 - 50.118 actions fall outside of the

01:14 - 53.355 the retroactive provision?

01:14 - 54.456 So why do we need to get into

01:14 - 55.693 the whole constitutionality

01:14 - 56.525 of this statute?

01:14 - 58.861 That alone should should be.

01:14 - 59.428 I agree.

01:14 - 00.829 But Belton suspenders

01:15 - 02.573 requires to proceed with the

01:15 - 04.700 constitutional argument as well.

01:15 - 07.269 I just want to make sure.

01:15 - 08.717 So as I was saying,

01:15 - 10.105 the principle resonates

01:15 - 12.207 because as you mentioned

01:15 - 14.097 the sexual offense was

01:15 - 16.178 in 2017 and the statute

01:15 - 17.826 was not even proposed

01:15 - 19.481 until 2019 enacted.

01:15 - 21.430 So the only the basis

01:15 - 22.718 that they revoked

01:15 - 24.378 his license was based

01:15 - 26.522 on this one section. Yes.

01:15 - 28.293 And so the fact

01:15 - 29.791 that he had a license

01:15 - 31.659 and he was given the

01:15 - 34.096 privilege to be a doctor

01:15 - 35.517 in the commonwealth,

01:15 - 37.232 and that he did commit

01:15 - 39.475 he agreed that he

01:15 - 41.336 committed a crime.

01:15 - 42.256 There was another avenue

01:15 - 43.338 that they could have taken

01:15 - 45.237 to revoke his license, but the

01:15 - 46.642 Commonwealth chose not to,

01:15 - 48.944 and they could have tried

01:15 - 56.051 him on a different basis.

01:15 - 59.121 Maybe. I don't think.

01:15 - 00.384 It would seem that that

01:16 - 01.757 the intent of the consent

01:16 - 05.861 decree was more protective

01:16 - 07.839 of your client than

01:16 - 09.631 it it could have been.

01:16 - 11.225 And I'm not sure. I

01:16 - 12.267 don't know if you recall.

01:16 - 13.802 What do you recall?

01:16 - 15.748 Well, do you recall what

01:16 - 17.539 the time period was?

01:16 - 18.848 I mean, we're talking about

01:16 - 20.409 something that happened in the

01:16 - 21.358 the license was

01:16 - 22.544 suspended in 2017.

01:16 - 24.546 Do you think that it was

01:16 - 26.028 likely that the

01:16 - 28.317 Commonwealth believed or

01:16 - 31.053 that they believe that

01:16 - 32.017 in a matter of just

01:16 - 32.988 a few short years

01:16 - 34.076 and he would be

01:16 - 36.191 reapplying for his license?

01:16 - 37.492 I think so.

01:16 - 40.729 These these types of

01:16 - 42.603 unlimited suspensions

01:16 - 44.399 with the right to petition

01:16 - 47.142 the court to return to practice

01:16 - 49.538 are more or less standard

01:16 - 51.396 practice for for the bureau

01:16 - 53.675 and then approval by the board.

01:16 - 55.020 We do this on a

01:16 - 56.912 fairly often basis.

01:16 - 58.503 Dealing with when

01:16 - 00.148 sexual abuse is the

01:17 - 03.585 underlying case or reason for.

01:17 - 05.139 Maybe not having had that

01:17 - 06.888 many sexual abuse matters.

01:17 - 07.654 To really know

01:17 - 08.757 the answer to that

01:17 - 09.938 but but normally

01:17 - 11.793 there's a decision made

01:17 - 15.597 to by counsel by me.

01:17 - 17.499 Okay. Time is right.

01:17 - 18.363 We think we now think

01:17 - 19.401 we have enough evidence

01:17 - 20.265 to be able to

01:17 - 21.737 show rehabilitation.

01:17 - 22.630 And there's been an

01:17 - 24.239 understanding of what went wrong

01:17 - 25.374 before.

01:17 - 26.595 The matter in this case

01:17 - 28.143 was a minor sexual offense.

01:17 - 29.706 It was not a rape or of

01:17 - 31.413 any violent in any way.

01:17 - 32.882 And therefore, with

01:17 - 34.282 the right testimony,

01:17 - 35.599 we thought, okay, this

01:17 - 37.285 this case can proceed now.

01:17 - 38.399 And we we believe we can

01:17 - 39.988 show that he's safe to practice.

01:17 - 42.424 So he had that right.

01:17 - 43.671 And that was what

01:17 - 45.293 was important to us.

01:17 - 47.209 And to then have it taken

01:17 - 49.364 away by Act 53 to us shows

01:17 - 50.732 that it's that it's punitive.

01:17 - 51.984 And do we need to get

01:17 - 53.902 into the constitutional issue?

01:17 - 55.582 You know, what's ironic about

01:17 - 57.172 it is that if the legislature

01:17 - 59.508 really thought

01:17 - 01.719 that this act was going to

01:18 - 04.279 apply to licensed providers,

01:18 - 06.803 it then takes on a greater

01:18 - 08.283 sting of punishment

01:18 - 10.585 than if it just viewed

01:18 - 11.769 we're going to apply

01:18 - 13.021 this prospectively,

01:18 - 15.016 because then there's some

01:18 - 17.059 notice that's being provided

01:18 - 18.645 those in medical school

01:18 - 20.295 or in a graduate program

01:18 - 21.724 to realize, okay,

01:18 - 23.031 maybe I need you.

01:18 - 24.151 But you're saying like, like

01:18 - 25.400 this is all brand new to him.

01:18 - 26.506 I mean, he's been a

01:18 - 28.203 practicing for a long time.

01:18 - 31.139 So he also understood

01:18 - 33.539 that he can't sexually

01:18 - 34.910 assault a patient.

01:18 - 36.541 So, of course, not

01:18 - 37.746 like he's just walking

01:18 - 38.831 in through the door

01:18 - 39.981 of like, oh, okay.

01:18 - 41.512 Well, I, you know, I didn't know

01:18 - 43.051 this because I'm an applicant.

01:18 - 44.593 You know, he's been

01:18 - 45.654 a practicing doctor.

01:18 - 47.549 I mean, I, it goes back to what

01:18 - 49.391 the Commonwealth relied upon

01:18 - 50.458 in suspending the

01:18 - 52.227 application as opposed to,

01:18 - 54.306 you know, how this statute

01:18 - 55.964 was enacted for applicants.

01:18 - 57.532 It's not like it was new to him

01:18 - 58.448 of how he needed

01:18 - 59.601 to conduct himself

01:18 - 00.672 with the license that the

01:19 - 01.837 Commonwealth granted him.

01:19 - 03.171 No, I didn't mean to say that.

01:19 - 04.553 All I meant to say is

01:19 - 06.208 that the bar of Act 50,

01:19 - 07.441 if applied to him, he

01:19 - 08.977 had no understanding of.

01:19 - 10.896 So when he pled with the nolo

01:19 - 12.881 plea, instead of going to trial,

01:19 - 14.073 he thought, You know

01:19 - 15.617 what, I'll have an opportunity

01:19 - 17.335 to petition the court to

01:19 - 18.987 have my license restored

01:19 - 20.338 subject to someone

01:19 - 21.590 saying I'm not safe.

01:19 - 23.592 So he took that risk.

01:19 - 24.319 I'm sorry to hear

01:19 - 25.227 that. No, go ahead.

01:19 - 26.508 You indicated earlier that

01:19 - 27.896 the individual assessments

01:19 - 28.498 already been

01:19 - 29.664 done, but I note that

01:19 - 30.511 it doesn't appear that

01:19 - 31.366 the hearing examiner

01:19 - 32.491 went through all of the

01:19 - 33.869 factors in their analysis.

01:19 - 34.767 Could you address the

01:19 - 35.971 adequacy of the assessment.

01:19 - 37.246 The hearing officer did

01:19 - 38.306 go through that entire

01:19 - 39.999 all of all of the factors

01:19 - 41.777 under see each one of them.

01:19 - 44.383 And he then concluded in

01:19 - 46.348 fact he found one of them

01:19 - 48.652 he didn't think he felt that

01:19 - 50.552 when my client testified

01:19 - 51.957 that he was seeking

01:19 - 53.889 no sexual gratification,

01:19 - 55.828 which was backed by the

01:19 - 57.425 polygraphs that he took.

01:19 - 58.960 I mean, whatever.

01:19 - 00.462 So however great they are

01:20 - 02.731 then.

01:20 - 04.017 But the hearing officer said,

01:20 - 05.534 notwithstanding the fact I'm not

01:20 - 07.142 I believe that the

01:20 - 09.237 rest of all of the factors

01:20 - 11.006 and I think there's ten of them

01:20 - 12.874 fall in his favor, and therefore

01:20 - 13.848 I'm going to kind of

01:20 - 14.976 push that to the side

01:20 - 16.378 and grant reinstatement.

01:20 - 17.575 So he did cover

01:20 - 19.181 all those factors.

01:20 - 20.515 Thank you very much.

01:20 - 22.651 Thank you.

01:20 - 27.656 Good morning.

01:20 - 28.490 May it please the court.

01:20 - 29.191 My name is Shannon

01:20 - 30.866 Walter, representing the State

01:20 - 32.661 Board of Osteopathic Medicine.

01:20 - 34.848 As a preliminary matter, I'd

01:20 - 36.865 like to make some clarifications

01:20 - 37.510 as far as the

01:20 - 38.700 procedure that occurred

01:20 - 40.014 in this case in 2017 and

01:20 - 41.336 make sure to speak up.

01:20 - 42.447 Thank you for. The

01:20 - 43.772 markup a little bit, too.

01:20 - 45.273 In 2017, Dr.

01:20 - 46.093 Godrej was subject

01:20 - 46.875 to an immediate

01:20 - 47.817 temporary suspension

01:20 - 48.577 of his license

01:20 - 49.811 after he was charged

01:20 - 50.990 with the sex crimes

01:20 - 52.614 relating to his patient.

01:20 - 54.120 In 2018, he entered the

01:20 - 56.051 nolo plea in criminal court.

01:20 - 57.586 And in 2019 he.

01:20 - 58.570 Entered into a consent

01:20 - 00.055 agreement with the Commonwealth

01:21 - 01.176 indefinitely

01:21 - 02.691 suspending his license.

01:21 - 05.760 In 2020, he submitted a petition

01:21 - 06.977 for reinstatement of

01:21 - 08.630 his license to the board.

01:21 - 10.465 At the time, a decision.

01:21 - 11.217 Was made on the

01:21 - 12.834 reinstatement for his license.

01:21 - 15.904 Act 53, Section 31, 13 D was in.

01:21 - 17.009 Effect at that time, and

01:21 - 18.306 that's what the board did.

01:21 - 20.442 They applied 3113.

01:21 - 23.263 It's important to note

01:21 - 25.313 that contrary to what

01:21 - 27.238 the petitioner has stated, a

01:21 - 29.584 licensure is not a vested right.

01:21 - 31.224 There is plenty of case

01:21 - 33.421 law that talks about licensure

01:21 - 34.608 as being a protected

01:21 - 36.458 right and not a vested right.

01:21 - 37.726 A right is when.

01:21 - 38.653 Someone is when

01:21 - 39.961 someone is pleading

01:21 - 43.565 no contest to a criminal charge

01:21 - 45.605 and they have a

01:21 - 46.902 professional license.

01:21 - 48.060 Obviously, they're

01:21 - 49.404 making that decision

01:21 - 50.772 or that you would think that

01:21 - 51.729 that's factoring

01:21 - 52.874 into their future

01:21 - 53.666 and what their future

01:21 - 54.542 is going to look like

01:21 - 56.407 when they're determining what

01:21 - 58.280 they can do moving forward.

01:21 - 59.714 When they enter into the consent

01:21 - 01.493 decree, the consent agreement,

01:22 - 03.518 it's the same way when they file

01:22 - 04.914 the petition for reinstatement,

01:22 - 06.021 isn't it? The same way?

01:22 - 07.403 And then you're at a hearing

01:22 - 09.090 and you're presenting something.

01:22 - 10.457 And even at that time,

01:22 - 12.394 the law wasn't in effect. So.

01:22 - 14.016 So how is it that this

01:22 - 16.164 individual was, it appears,

01:22 - 17.384 is really subject to the

01:22 - 18.867 timing of the adjudication?

01:22 - 22.103 How is that something that?

01:22 - 23.209 How how should he have a

01:22 - 24.739 lifetime ban on his employment?

01:22 - 26.235 Because the adjudication took

01:22 - 27.842 long enough that the law came

01:22 - 28.643 into effect.

01:22 - 30.879 The prohibition

01:22 - 32.580 on him practicing.

01:22 - 37.252 Is a a function of 3113 d.

01:22 - 39.154 The Board nor Mr.

01:22 - 39.782 Goderich can

01:22 - 41.156 predict every collateral

01:22 - 42.972 collateral consequence of

01:22 - 45.160 his what essentially amounts

01:22 - 46.394 to a guilty plea.

01:22 - 48.512 What would have happened if

01:22 - 51.032 at 53, had it been instituted?

01:22 - 53.034 If we didn't have an Act 53,

01:22 - 53.835 what would the

01:22 - 55.103 procedure have been?

01:22 - 55.770 If Mr.

01:22 - 56.571 Guy Deery filed

01:22 - 57.839 a petition for reinstatement,

01:22 - 58.908 the board would

01:22 - 00.342 have looked at his

01:23 - 01.805 any evidence he presented

01:23 - 03.511 relating to rehabilitation.

01:23 - 04.412 Okay.

01:23 - 06.248 So considering that part

01:23 - 08.016 of the consent decree

01:23 - 09.451 was that he negotiated

01:23 - 11.111 the ability to reapply, which

01:23 - 12.721 would make no sense at all

01:23 - 14.171 if he had the crystal

01:23 - 15.490 ball to look into the future

01:23 - 16.371 to determine that

01:23 - 18.093 negotiating that was worthless.

01:23 - 19.273 Like why even negotiate

01:23 - 20.829 that into the consent decree?

01:23 - 25.600 Why wouldn't the

01:23 - 26.704 government just

01:23 - 28.703 advance under pre act 53,

01:23 - 31.106 the I'm just sorry.

01:23 - 32.007 What I'm. Looking at.

01:23 - 32.874 Is in addition

01:23 - 33.707 to protecting the

01:23 - 34.943 public, we also have to

01:23 - 35.646 look at this

01:23 - 36.945 fundamental fairness

01:23 - 38.713 of what transpired here.

01:23 - 39.860 And I'm not asking you to

01:23 - 41.383 literally answer this question,

01:23 - 42.884 but just like think

01:23 - 44.177 if you are in this position,

01:23 - 45.153 how you would feel.

01:23 - 46.488 To say that this.

01:23 - 47.859 Act is going to apply to

01:23 - 49.524 you when it just came into.

01:23 - 51.760 Existence after the fact?

01:23 - 53.294 I certainly understand.

01:23 - 54.396 How that would be.

01:23 - 55.697 Mr. got your position.

01:23 - 57.068 But the General Assembly

01:23 - 58.333 made a policy choice

01:23 - 59.868 and that policy choice

01:23 - 01.115 was to protect the public

01:24 - 02.270 through a prohibition

01:24 - 03.842 on allowing health care workers

01:24 - 05.473 to practice in the profession.

01:24 - 07.315 We're looking at a very

01:24 - 08.410 vulnerable population.

01:24 - 09.707 When we're looking

01:24 - 11.012 at patients and.

01:24 - 12.847 Physicians and

01:24 - 14.295 other health care practitioners

01:24 - 15.517 in the General Assembly.

01:24 - 17.424 I thought it was important that

01:24 - 18.953 those individuals be protected

01:24 - 20.601 from individuals

01:24 - 21.723 like Mr. Gualtieri.

01:24 - 23.584 Who is a registered

01:24 - 25.060 sex offender.

01:24 - 25.593 Okay.

01:24 - 26.570 I don't know if that

01:24 - 27.662 answered the question

01:24 - 28.359 because saying

01:24 - 29.564 it's a balancing test.

01:24 - 30.865 I mean, this isn't anything new

01:24 - 31.456 for the General

01:24 - 32.333 Assembly to look at.

01:24 - 33.534 They just finally got

01:24 - 35.203 around to enacting the law.

01:24 - 37.504 But the petitioner here

01:24 - 39.074 wasn't aware of what

01:24 - 39.943 the law was because

01:24 - 40.775 it was important

01:24 - 42.006 attention, because it

01:24 - 43.244 hadn't been passed.

01:24 - 44.448 So how do we deal with

01:24 - 45.880 the post facto argument?

01:24 - 48.212 It's it is not an ex

01:24 - 50.518 post facto violation.

01:24 - 52.245 This court in Galena versus

01:24 - 54.322 the State Board of Medicine has

01:24 - 55.845 made a determination that

01:24 - 57.125 the automatic suspension

01:24 - 57.850 provisions of the

01:24 - 58.626 Medical Practice

01:24 - 59.615 Act are not an ex

01:24 - 00.962 post facto violation.

01:25 - 02.806 The United States

01:25 - 05.166 Supreme Court in regulating

01:25 - 06.213 union dockworkers,

01:25 - 07.268 has decided that

01:25 - 10.305 regulating

01:25 - 11.765 individuals convicted

01:25 - 12.941 of felonies is not

01:25 - 15.210 an ex post facto violation.

01:25 - 15.970 Johnson versus

01:25 - 17.612 Allegheny Intermediate Unit.

01:25 - 19.380 Although it

01:25 - 21.663 is a civil regulatory

01:25 - 22.951 scheme and it has

01:25 - 24.352 the sting of punishment. It.

01:25 - 26.550 Doesn't rise to the level of

01:25 - 28.756 incarceration, deportation

01:25 - 31.655 or any of the other hallmarks

01:25 - 34.863 of an ex post facto violation.

01:25 - 35.663 Thank you.

01:25 - 40.201 So is the whole basis act 53 for

01:25 - 43.204 why this state took away

01:25 - 44.685 license or refused

01:25 - 46.174 to reinstate it?

01:25 - 47.584 The text of 3113

01:25 - 49.444 says that the board

01:25 - 50.904 shall not otherwise allow

01:25 - 52.547 an individual to practice.

01:25 - 54.752 And if that doesn't apply to

01:25 - 56.551 licensees, who else would it

01:25 - 57.485 apply to?

01:25 - 58.927 Applicants are at the

01:25 - 00.722 beginning of the section

01:26 - 02.014 and then there's the

01:26 - 02.924 part that otherwise

01:26 - 03.836 that prohibits the

01:26 - 04.959 board from otherwise

01:26 - 05.730 allowing an

01:26 - 07.495 individual to practice.

01:26 - 08.815 And licenses would

01:26 - 10.732 fall into that category.

01:26 - 12.986 So the board didn't exercise

01:26 - 14.936 any discretion that it wasn't

01:26 - 16.874 isn't allowed to exercise

01:26 - 18.573 and simply apply 3113

01:26 - 20.241 as it's written.

01:26 - 22.161 So it wouldn't have mattered

01:26 - 24.379 what assessment had been done by

01:26 - 25.662 and by the the

01:26 - 27.315 other professional

01:26 - 28.714 wouldn't really it

01:26 - 30.251 wouldn't have mattered.

01:26 - 31.352 Correct.

01:26 - 31.853 Right.

01:26 - 33.461 The board applied

01:26 - 35.456 the criteria of 30.

01:26 - 38.126 113 D to the facts as they.

01:26 - 38.860 Existed.

01:26 - 41.496 And that's Mr.

01:26 - 42.608 Guidry at the two part

01:26 - 44.032 test, which is health care

01:26 - 45.124 practitioner, convicted

01:26 - 46.034 of a sex offense.

01:26 - 48.636 And the board apply that.

01:26 - 49.771 And the only way.

01:26 - 50.901 That it can which

01:26 - 52.440 to those two factors.

01:26 - 53.642 And if we were to

01:26 - 54.475 say that the board

01:26 - 55.852 didn't need to apply

01:26 - 57.445 it and and we were to

01:26 - 59.505 look at this in

01:26 - 01.049 terms of the prior law

01:27 - 02.060 would have permitted

01:27 - 03.251 the individual assessment.

01:27 - 06.888 Was that assessment. Adequate?

01:27 - 09.292 The evidence that was presented

01:27 - 11.859 was evidence of rehabilitation.

01:27 - 12.746 And since the

01:27 - 14.395 proposed adjudication.

01:27 - 17.131 Was released.

01:27 - 18.331 Around the time that

01:27 - 19.901 Act 53 became effective,

01:27 - 21.950 the evidence of

01:27 - 24.105 rehabilitation was kind of

01:27 - 27.842 woven into the 3113 see factors.

01:27 - 30.845 So. Okay.

01:27 - 32.576 Should if should this court

01:27 - 34.315 remand for a new hearing?

01:27 - 37.153 If were to say that it should

01:27 - 38.219 not have been applied

01:27 - 39.587 as it was by the board,

01:27 - 42.095 there is evidence

01:27 - 43.224 on the record that.

01:27 - 44.608 Has already been presented

01:27 - 46.427 relating to rehabilitate action,

01:27 - 47.261 and the board could

01:27 - 48.196 make a determination

01:27 - 57.138 based upon that evidence.

01:28 - 03.444 One of the big differences,

01:28 - 04.881 I think, that's important

01:28 - 06.614 between the litany of cases.

01:28 - 08.049 That.

01:28 - 09.229 Mr. Dearden went

01:28 - 10.718 through, which is Nixon

01:28 - 13.121 Johnson Peak is new here.

01:28 - 16.015 Are you able to

01:28 - 17.525 hear, oh, kick it.

01:28 - 20.261 I'm okay.

01:28 - 23.097 Yes. Make sure you speak up.

01:28 - 25.000 All of the petitioners

01:28 - 26.367 in those cases

01:28 - 28.439 their convictions occurred

01:28 - 29.637 before they were hired.

01:28 - 31.512 Johnson's conviction occurred

01:28 - 33.541 before he was hired by the AIU.

01:28 - 35.209 The petitioners and Nixon.

01:28 - 36.944 Their convictions occurred.

01:28 - 38.038 They were hired and

01:28 - 39.314 the same as in peak.

01:28 - 42.118 Kadiri was a licensee when he

01:28 - 44.786 was convicted of a sex offense,

01:28 - 45.865 and I think that's an

01:28 - 47.055 important distinction

01:28 - 49.938 between this case

01:28 - 51.159 and the other cases

01:28 - 52.892 and how 3113 D is

01:28 - 56.064 applied to his reinstatement.

01:28 - 58.099 As he as he filed it

01:28 - 04.432 after the effective

01:29 - 09.210 date of Act 53.

01:29 - 10.429 Regarding the hearing

01:29 - 12.180 about allowable presumption.

01:29 - 15.644 In. Peake, the Clayton

01:29 - 16.684 test was employed

01:29 - 18.686 talking about the encroachment

01:29 - 19.821 on a protected interest.

01:29 - 21.884 The the presumption

01:29 - 23.958 of universal truth

01:29 - 25.853 and a reasonable alternative

01:29 - 28.096 to ascertain the presumed fact.

01:29 - 29.750 The difference.

01:29 - 31.165 Between this case.

01:29 - 32.993 And Peake is that in Peake

01:29 - 34.969 it was a facial challenge,

01:29 - 36.713 and the court determined that

01:29 - 38.706 it's not universally true that.

01:29 - 41.175 Everyone falling into.

01:29 - 42.770 Employing it under

01:29 - 44.312 the older Adult Services

01:29 - 46.046 Protective Act would be

01:29 - 48.015 unsafe to practice here.

01:29 - 50.518 We're only looking at Mr. Guy.

01:29 - 51.337 We're looking at

01:29 - 52.987 essentially what is a universe

01:29 - 55.056 of of one.

01:29 - 58.326 And it is permissible

01:29 - 00.061 to protect the

01:30 - 01.728 public interest to look

01:30 - 03.331 him and say that Mr.

01:30 - 04.409 Guy deary poses a

01:30 - 06.067 substantial risk of harm

01:30 - 08.002 to members of the public.

01:30 - 09.495 Well, it but that's

01:30 - 10.838 it sounds to me

01:30 - 13.771 like that's being based

01:30 - 16.444 purely on the statute

01:30 - 18.626 saying that you couldn't

01:30 - 20.281 give him a license.

01:30 - 20.581 Right.

01:30 - 22.650 You said that there was evidence

01:30 - 24.259 that he wasn't a danger

01:30 - 26.087 or was safe to practice.

01:30 - 27.822 So how does that square

01:30 - 29.274 with what you just said,

01:30 - 31.159 that it's it's his assessment

01:30 - 32.882 of, the evidence that he

01:30 - 34.328 is not a danger to practice

01:30 - 36.966 the board make an

01:30 - 38.132 assessment of that.

01:30 - 39.859 The board reviewed the record,

01:30 - 41.536 but determined that despite

01:30 - 43.747 or and the evidence on

01:30 - 45.773 the record was irrelevant

01:30 - 47.571 because the board was

01:30 - 49.977 limited to applying 3113 D

01:30 - 51.646 it has no discretionary

01:30 - 53.602 authority and it cannot exercise

01:30 - 55.383 any discretionary authority

01:30 - 56.617 in this

01:30 - 57.713 circumstance without

01:30 - 59.587 specific legislator legislature.

01:31 - 01.689 So how is that different?

01:31 - 03.571 I mean, I didn't understand

01:31 - 05.460 your argument about Peake

01:31 - 08.563 then. In its.

01:31 - 10.127 In relation to the rebuttal

01:31 - 11.466 for assumption, right

01:31 - 12.804 Isn't the statute an

01:31 - 14.402 irrevocable presumption

01:31 - 17.137 the way the board let me

01:31 - 19.273 say it this way didn't the board

01:31 - 21.542 apply it to

01:31 - 25.179 the petitioner here

01:31 - 26.229 as an irreversible

01:31 - 28.049 presumption because it didn't

01:31 - 31.159 evaluate the evidence

01:31 - 33.654 that he had presented?

01:31 - 37.625 Contrary to that, it's

01:31 - 40.425 it's not in rebuttable

01:31 - 42.129 presumption.

01:31 - 44.832 He was convicted of a sex crime.

01:31 - 45.840 So he's been

01:31 - 47.401 determined that he is

01:31 - 50.171 he's unsafe.

01:31 - 52.037 But I'm just asking

01:31 - 54.108 here, in this case,

01:31 - 55.560 with the evidence

01:31 - 56.744 that the board had,

01:31 - 58.378 there was evidence

01:31 - 59.547 that he presented

01:31 - 01.749 that would show that

01:32 - 03.718 he wasn't a danger.

01:32 - 04.833 But the board

01:32 - 06.053 didn't look at that

01:32 - 08.041 because instead it

01:32 - 10.591 presumed based on the

01:32 - 14.362 that he's unsafe.

01:32 - 16.155 Why isn't that an irreparable

01:32 - 18.266 presumption if the board refuses

01:32 - 20.448 to allow him to rebut

01:32 - 22.270 that with evidence?

01:32 - 25.506 The General Assembly

01:32 - 27.111 had made a statute that

01:32 - 29.143 says that, but that exists.

01:32 - 30.554 The General Assembly created

01:32 - 32.146 the new rebuttable presumption.

01:32 - 34.081 Correct.

01:32 - 34.956 I don't understand

01:32 - 36.083 how this would not be

01:32 - 37.754 an irreparable presumption

01:32 - 39.820 in the way that it was applied

01:32 - 40.621 by board.

01:32 - 42.523 In this case,

01:32 - 44.525 that was a policy choice.

01:32 - 46.216 The board is unable to make

01:32 - 48.229 any determining interpretation

01:32 - 50.442 or constitutional determinations

01:32 - 51.832 about the statute.

01:32 - 53.337 That is, as it is written, we

01:32 - 54.902 are limited to the authority

01:32 - 56.103 that was granted.

01:32 - 57.972 Thank you. Make that assessment.

01:32 - 58.580 Before you leave,

01:32 - 59.340 Counsel. I'm sorry.

01:32 - 59.866 Could you go

01:32 - 00.841 through the timeline

01:33 - 01.909 that you started with again?

01:33 - 03.283 Please remain

01:33 - 05.513 sure. In 2017, Mr..

01:33 - 07.404 Godrej was charged with

01:33 - 09.550 sex offenses relating to

01:33 - 12.386 a patient of his.

01:33 - 14.889 In 2018, he entered.

01:33 - 17.925 A nolo plea to one count of

01:33 - 19.484 indecent assault,

01:33 - 21.128 which is a sex offense

01:33 - 23.684 on the list of sexual offenses,

01:33 - 26.000 as it's described in 3113.

01:33 - 29.376 I in 2019, he entered into a

01:33 - 32.640 consent agreement with the.

01:33 - 33.402 Commonwealth and

01:33 - 34.508 the consent agreement

01:33 - 35.973 provided for the indefinite

01:33 - 37.445 suspension of his license

01:33 - 39.310 with the opportunity to

01:33 - 41.082 petition for reinstatement,

01:33 - 43.551 which obviously Mr.

01:33 - 44.848 Guy he did petition

01:33 - 46.153 for reinstatement

01:33 - 47.355 in that consent agreement.

01:33 - 48.789 There was no. Counsel.

01:33 - 50.224 Could you speak up?

01:33 - 51.555 There was no

01:33 - 53.094 contractual obligation

01:33 - 55.639 for his license

01:33 - 57.098 to be reinstated.

01:33 - 58.061 It was only to give

01:33 - 59.133 him the opportunity

01:33 - 01.402 be heard, which the board did.

01:34 - 03.137 So he petitioned the court.

01:34 - 04.539 He petitioned for

01:34 - 06.941 reinstatement in 2020. Yes.

01:34 - 08.909 Okay.

01:34 - 12.213 And do you know, were

01:34 - 14.063 as it related to

01:34 - 15.383 the consent decree

01:34 - 17.314 with the with the Commonwealth,

01:34 - 18.753 were there collateral

01:34 - 21.802 consequences discussed

01:34 - 23.190 during the colloquy.

01:34 - 24.392 Do you know

01:34 - 26.560 it is not the.

01:34 - 27.773 Commonwealth's obligation

01:34 - 28.896 to discuss collateral

01:34 - 31.065 collateral consequences of.

01:34 - 32.933 An in and of counsel.

01:34 - 33.901 I just asked you

01:34 - 35.759 and an ask about responsibility

01:34 - 37.204 as he said if you know

01:34 - 39.319 was that discussion and was

01:34 - 41.142 that a part of the discussion

01:34 - 43.377 of the the colloquy? I'm sorry.

01:34 - 44.923 The limitation of my knowledge

01:34 - 46.580 of the discussion is contained

01:34 - 47.682 in the consent agreement.

01:34 - 49.940 Okay, Counsel, do you know

01:34 - 52.553 if there was a corresponding

01:34 - 54.794 civil action brought

01:34 - 56.891 by the patient against

01:34 - 58.726 the petitioner?

01:34 - 59.629 This instance, I.

01:34 - 00.861 Am not aware of that.

01:35 - 02.941 So if there were, would

01:35 - 04.765 that patient be permitted

01:35 - 06.341 to use the nolo plea as

01:35 - 08.269 an admission of liability.

01:35 - 10.885 That is outside of the

01:35 - 12.406 purview of the board?

01:35 - 14.508 If there was a matter.

01:35 - 15.443 As a matter of

01:35 - 17.474 procedure, do you do

01:35 - 19.080 you know if that's possible?

01:35 - 20.586 I'm not aware of what evidence

01:35 - 21.949 she would be able to use.

01:35 - 23.152 He can't use another

01:35 - 24.518 plea in a civil proceeding.

01:35 - 26.120 Why is it any different here?

01:35 - 28.403 It's it's a conviction,

01:35 - 31.092 but it's not an admission

01:35 - 32.881 for purposes of

01:35 - 35.396 collateral matters,

01:35 - 37.391 like a licensure proceeding,

01:35 - 39.066 like a civil proceeding.

01:35 - 43.671 If he came into this recognizing

01:35 - 44.676 that it's a next step,

01:35 - 45.506 that you have to

01:35 - 46.733 then have another trial

01:35 - 48.342 within a trial, effectively,

01:35 - 49.677 you can't use that.

01:35 - 50.887 No. The plea that is

01:35 - 52.713 the effect of a guilty plea.

01:35 - 54.560 Doesn't that strike you

01:35 - 56.016 as fundamentally unfair.

01:35 - 58.417 In 63 relating to

01:35 - 00.287 licensure issues?

01:36 - 02.089 It describes

01:36 - 03.707 the different types

01:36 - 04.625 of dispositions

01:36 - 05.981 and in criminal law case

01:36 - 07.628 that are considered a plea.

01:36 - 09.638 I know a plea is one of

01:36 - 11.298 them as is and a hard case.

01:36 - 13.189 So for our purposes, a

01:36 - 15.236 plea has the same effect

01:36 - 19.006 as a guilty plea like.

01:36 - 19.673 Thank you.

01:36 - 26.914 Thank you very much.

01:36 - 28.382 Okay. Thank you.

01:36 - 29.461 Thank you. Thank

01:36 - 30.818 you all very much.

01:36 - 33.674 We will take this as well

01:36 - 36.423 under advisement. Yes.

01:36 - 40.861 You mean in the.

01:36 - 42.830 And now our

01:36 - 46.400 final case for the morning list

01:36 - 54.642 is K State Petitioner

01:36 - 57.100 versus Celebration

01:36 - 00.447 Fireworks Inc Respondent.

01:37 - 02.457 And this case is an appeal

01:37 - 04.785 from an order of the Workers

01:37 - 06.854 Compensation Appeal Board

01:37 - 08.712 that affirmed the decision of a

01:37 - 10.457 worker's compensation judge

01:37 - 11.531 denying the claim

01:37 - 12.993 of claimant's estate,

01:37 - 15.359 seeking payment of 840

01:37 - 18.065 weeks of specific loss benefits

01:37 - 19.845 previously awarded by the

01:37 - 21.669 Worker's Compensation Judge.

01:37 - 24.059 The decision noted that

01:37 - 26.073 nothing in the Act requires

01:37 - 28.113 an employer to pay specific

01:37 - 30.010 loss benefits in a case

01:37 - 31.989 where the injured worker died

01:37 - 34.181 as a result of the work injury

01:37 - 36.032 and that there was nothing

01:37 - 37.651 in the act that would require

01:37 - 40.299 the payment of specific benefits

01:37 - 42.790 to anyone except dependents.

01:37 - 44.388 Claimant died as a

01:37 - 46.060 result of her work injuries

01:37 - 47.512 with no dependance

01:37 - 49.296 on appeal claimants.

01:37 - 50.477 The state argues

01:37 - 52.333 that this case provides

01:37 - 54.212 the court with an opportunity

01:37 - 55.970 to reconsider and clarify

01:37 - 58.151 an earlier decision of this

01:37 - 00.007 court in a state of Harris

01:38 - 02.811 Workers Worker's Comp Appeal

01:38 - 05.412 Board on which both the WCG

01:38 - 06.971 and the Worker's

01:38 - 09.049 Compensation Appeal Board

01:38 - 13.721 relied.

01:38 - 14.760 Please proceed.

01:38 - 16.223 Good morning again.

01:38 - 17.157 May it please the Court.

01:38 - 17.992 Dan Segal

01:38 - 19.827 on behalf of the petitioner

01:38 - 20.949 and I would like to reserve

01:38 - 21.996 2 minutes for rebuttal.

01:38 - 23.397 You have it.

01:38 - 24.746 As Your Honor

01:38 - 26.533 indicated, this case

01:38 - 28.936 that is

01:38 - 30.317 assuming this case

01:38 - 31.538 seeks to address

01:38 - 33.891 the impact of Section

01:38 - 36.110 306g and this Court's

01:38 - 38.275 prior decision in 1972

01:38 - 40.547 in a state of Harris.

01:38 - 43.234 As a general matter, the

01:38 - 44.852 Workers Compensation Act

01:38 - 46.988 provides that compensation

01:38 - 49.189 for specific loss benefits

01:38 - 50.639 accrue at the

01:38 - 52.426 time of the specific

01:38 - 55.262 loss, but are not payable until

01:38 - 57.570 after the payment of

01:38 - 00.200 disability benefits ends.

01:39 - 02.441 In the case of this case,

01:39 - 04.939 misdeeds, they did not occur.

01:39 - 06.132 Benefits did not

01:39 - 07.708 end until she died.

01:39 - 10.945 This court in 1972

01:39 - 12.660 issued the decision in a

01:39 - 14.281 state of the state of Harris.

01:39 - 17.451 When you look at that decision,

01:39 - 18.901 you recognize

01:39 - 21.588 that one, it is harsh.

01:39 - 23.524 Two, it's inequitable.

01:39 - 25.715 And three, something that in

01:39 - 28.228 terms of research, even before

01:39 - 30.177 today that I apologize

01:39 - 31.532 is not in the brief,

01:39 - 34.301 is that in 1972,

01:39 - 36.168 the General Assembly

01:39 - 37.972 amended the statute.

01:39 - 39.573 That's at issue here.

01:39 - 41.439 And that amendment goes

01:39 - 44.044 back to the original enactment

01:39 - 45.354 of the Workers

01:39 - 47.548 Compensation Act in 1921

01:39 - 50.141 and in 1921, there

01:39 - 52.586 was no Section 306g.

01:39 - 54.649 There was a Section

01:39 - 56.590 306f that started with

01:39 - 58.888 Should a claimant

01:39 - 00.894 die, etc., etc.

01:40 - 02.596 and then the benefits that

01:40 - 04.348 the claimant would be entitled

01:40 - 05.933 to should be entitled to.

01:40 - 07.797 And it says, should the employee

01:40 - 09.269 die as a result of the injury,

01:40 - 10.471 the period during

01:40 - 11.480 which compensation

01:40 - 13.340 shall be paid, etc., etc., etc.

01:40 - 15.646 It ended with the

01:40 - 17.511 paragraph with should

01:40 - 19.041 the employee die from some

01:40 - 20.814 cause other than the injury?

01:40 - 22.013 The liability for

01:40 - 23.283 compensation trustees

01:40 - 26.754 eventually during codification,

01:40 - 28.371 not during anything

01:40 - 30.090 done by the legislature.

01:40 - 32.482 That last sentence was

01:40 - 35.129 made into a separate provision,

01:40 - 38.232 and then the legislature or, as

01:40 - 39.883 in part, of course,

01:40 - 41.001 part of codification,

01:40 - 43.472 placed the title on there

01:40 - 45.873 that the relating to dying

01:40 - 49.073 that paragraph was

01:40 - 50.811 amended in 1972

01:40 - 52.545 after the decisions

01:40 - 53.847 that were issued

01:40 - 56.132 to be more clear in

01:40 - 58.352 terms of what it says,

01:40 - 58.886 because it

01:40 - 00.610 then said it originally said

01:41 - 02.156 should the employee die

01:41 - 03.003 from a cause other

01:41 - 03.857 than the injury?

01:41 - 04.645 Liability for

01:41 - 06.293 compensation shall cease.

01:41 - 07.209 And now it says

01:41 - 08.562 payment compensation

01:41 - 11.165 shall be paid, etc., etc..

01:41 - 12.866 But the point is

01:41 - 14.579 there was never under the

01:41 - 16.437 Worker's Compensation Act

01:41 - 18.847 any provision that said

01:41 - 21.475 that should an employee die

01:41 - 24.233 as a result of the work injury,

01:41 - 26.580 that that employee was not

01:41 - 28.242 or should not be entitled to

01:41 - 30.150 payment of additional benefits

01:41 - 32.738 in particular specific loss

01:41 - 35.222 benefits, and to interpret

01:41 - 36.681 it as the way it did, as

01:41 - 38.392 we explained in the brief,

01:41 - 40.946 takes the position that

01:41 - 43.130 if mistreats who suffered

01:41 - 44.285 catastrophic,

01:41 - 45.999 horrendous injuries

01:41 - 47.901 as think we can all agree

01:41 - 49.559 if she had died from some other

01:41 - 51.171 cause and contracted cancer,

01:41 - 53.450 she would have received

01:41 - 55.909 over $200,000 in benefits.

01:41 - 57.244 But because she

01:41 - 59.213 died from the injury

01:41 - 00.948 that caused an inflicted

01:42 - 02.644 all of these conditions,

01:42 - 04.985 she's not entitled to anything.

01:42 - 08.088 So folks who'd. Who.

01:42 - 11.024 Pass away unrelated to work.

01:42 - 12.408 The work injury

01:42 - 13.861 get more benefits.

01:42 - 15.662 That was the interpretation.

01:42 - 16.731 Judge Sigler in

01:42 - 18.165 a state of Harris.

01:42 - 19.800 So those injured,

01:42 - 21.641 those who die of the work

01:42 - 23.637 injury get less get less.

01:42 - 25.071 And I'm surprised this

01:42 - 26.840 hasn't come up before. I.

01:42 - 28.742 I will

01:42 - 30.175 artfully say that lawyers

01:42 - 31.845 who've had this case before

01:42 - 33.333 simply accepted the

01:42 - 34.948 decision in a state of.

01:42 - 36.472 HARRIS And really didn't

01:42 - 38.385 look further at the history.

01:42 - 40.521 Can you distinguish Harris.

01:42 - 42.956 From from this. Situation here?

01:42 - 43.693 Well, I think

01:42 - 44.625 there's two issues.

01:42 - 46.393 One is Your Honor

01:42 - 48.156 and I previously ruled on

01:42 - 50.564 this case in a published opinion

01:42 - 51.932 and affirmed

01:42 - 53.744 the entitlement of the estate

01:42 - 55.502 to specific loss benefits.

01:42 - 57.099 I believe that this

01:42 - 58.472 court, if it seeks

01:42 - 59.727 to, could simply

01:42 - 01.542 affirm your decision.

01:43 - 04.178 That is, you know, due to Carter

01:43 - 05.941 and it should collaterally

01:43 - 07.614 a stop any further litigation

01:43 - 09.384 and bind the employer

01:43 - 11.652 to have to overrule Harris.

01:43 - 14.788 I think the better decision

01:43 - 17.991 would be to either how.

01:43 - 19.993 Can we affirm the prior

01:43 - 21.897 matter in this case

01:43 - 23.096 under race you to Carter

01:43 - 24.296 with Harris South or

01:43 - 25.465 it seems like Harris's

01:43 - 26.753 a big block in the

01:43 - 27.601 middle of the road.

01:43 - 29.970 I think if you win, you know,

01:43 - 31.050 I think we have

01:43 - 31.872 to overrule Harris.

01:43 - 33.538 I think that is the more

01:43 - 35.142 appropriate response.

01:43 - 37.411 So it's yes.

01:43 - 38.679 But as yes.

01:43 - 40.022 But as you know from

01:43 - 42.182 earlier today, you know, we we

01:43 - 44.221 I do try to be judicious in what

01:43 - 45.953 I suggest that the court do.

01:43 - 47.584 But Harris appears

01:43 - 49.122 to be an anomaly

01:43 - 51.464 that is one inconsistent with

01:43 - 53.760 the full statutory construct.

01:43 - 55.671 Well, wait, she died after

01:43 - 58.031 our court's decision, correct?

01:43 - 59.846 She died after the court's

01:43 - 01.101 decision by Judge Sykes.

01:44 - 01.702 Right.

01:44 - 04.905 So that's why Harris would.

01:44 - 06.473 I mean,

01:44 - 08.971 it's that that creates

01:44 - 10.444 the problem here.

01:44 - 13.347 Correct. Right.

01:44 - 15.242 And how do how do you line up,

01:44 - 16.917 Harris, with with the statute?

01:44 - 17.462 Because, I mean,

01:44 - 18.118 I agree with you.

01:44 - 19.786 It just seems

01:44 - 21.461 so upside down,

01:44 - 23.190 backwards and sideways

01:44 - 24.848 that someone who dies

01:44 - 26.927 from non-work related injuries

01:44 - 28.528 gets more than somebody

01:44 - 30.197 who dies from their work

01:44 - 31.278 related injuries. Oh,

01:44 - 32.366 I agree completely.

01:44 - 33.448 Especially when

01:44 - 34.067 there's already been

01:44 - 34.745 the award of

01:44 - 36.169 specific loss benefits.

01:44 - 38.405 I think if you look at Harris,

01:44 - 42.542 Harris was a very narrow

01:44 - 44.577 decided case in the

01:44 - 46.813 sense that it was decided

01:44 - 48.381 based solely on an

01:44 - 50.917 examination of Section 306j

01:44 - 53.419 and the conclusion that

01:44 - 55.689 opinion was that since

01:44 - 57.329 it was the Latin

01:44 - 58.325 expression that since it

01:44 - 59.731 didn't include the contrary,

01:44 - 00.994 therefore it was meant,

01:45 - 02.954 but that so without

01:45 - 04.765 looking at the history

01:45 - 07.000 and the context of the statute

01:45 - 08.238 and looking at the other

01:45 - 09.536 sections of the statute

01:45 - 11.076 which we've laid out in our

01:45 - 12.773 brief which explained, you know,

01:45 - 13.955 there are benefits

01:45 - 15.409 payable after death.

01:45 - 16.645 When I was

01:45 - 18.312 preparing for this case.

01:45 - 20.214 I initially thought the way

01:45 - 21.982 you did and I had notes

01:45 - 23.129 like, oh, wow. And like,

01:45 - 24.284 this seems outrageous.

01:45 - 25.775 But when I pause and I

01:45 - 28.021 consider the purpose of the act

01:45 - 29.342 is to replace for wages,

01:45 - 31.058 and then the act specifically

01:45 - 32.761 just talks, you know,

01:45 - 35.529 dependents and funeral expenses.

01:45 - 37.803 I guess what I'm

01:45 - 39.232 asking you to respond to

01:45 - 40.896 is consider the specific

01:45 - 42.602 language in the statute

01:45 - 43.749 as well as the

01:45 - 45.272 intent behind this act,

01:45 - 46.104 and let me know how

01:45 - 47.341 you would respond to that.

01:45 - 48.742 The act,

01:45 - 50.774 the sections that you're talking

01:45 - 52.813 about, relate to compensation.

01:45 - 54.744 There are two forms of

01:45 - 56.683 compensation under the Act.

01:45 - 59.484 There are benefits for wage

01:45 - 01.788 loss and fatal claim benefits

01:46 - 03.443 which are paid solely

01:46 - 05.625 based upon dependency, etc.,

01:46 - 07.427 other than a funeral benefit.

01:46 - 08.963 On the other hand, there

01:46 - 10.764 are specific loss benefits

01:46 - 11.845 you lose in hand,

01:46 - 12.933 you lose a leg.

01:46 - 14.601 Those types of benefits,

01:46 - 16.903 those benefits are compensation

01:46 - 18.694 that are of a different nature

01:46 - 19.973 and are always payable

01:46 - 22.372 only after payments for

01:46 - 24.478 wage losses are done.

01:46 - 25.579 The Act,

01:46 - 26.891 this Court and all the courts

01:46 - 28.348 have always looked at those as

01:46 - 31.418 a separate type of compensation

01:46 - 33.921 because they are independent

01:46 - 35.956 of the ability to work,

01:46 - 37.587 which is the core

01:46 - 38.792 concept of okay.

01:46 - 39.773 Yeah, I understand that

01:46 - 40.894 and that's a great answer.

01:46 - 42.552 Now when we then

01:46 - 44.998 turn to the specific loss,

01:46 - 46.466 how do you respond to

01:46 - 48.018 the statutory section

01:46 - 50.170 dealing with specific loss?

01:46 - 51.739 And I interpreted it to mean

01:46 - 53.540 there needed to be dependents.

01:46 - 55.071 Now, the fatal claim

01:46 - 56.476 petition. Fatal claim.

01:46 - 58.378 Claim requires dependents.

01:46 - 59.653 There's no there wasn't

01:46 - 01.214 a fatal claim filed below.

01:47 - 02.883 There's No dependents here.

01:47 - 04.661 So the only you don't have

01:47 - 06.653 that, but the specific loss

01:47 - 09.027 benefits accrue and

01:47 - 12.159 thereafter the benefits

01:47 - 14.089 are then payable either

01:47 - 16.163 to the estate or to heirs.

01:47 - 17.697 But they're payable

01:47 - 19.533 regardless of dependency

01:47 - 22.030 because they a benefit

01:47 - 24.004 that is paid separately.

01:47 - 25.698 And that's why the statute

01:47 - 27.207 makes that distinction.

01:47 - 28.442 Well, counsel, if

01:47 - 31.411 if we're if the purpose.

01:47 - 32.662 The humanitarian

01:47 - 34.548 purpose of the act is.

01:47 - 35.753 To protect the

01:47 - 37.484 worker and his or.

01:47 - 39.219 Her dependents.

01:47 - 40.921 If there are no dependents what.

01:47 - 43.523 Would be the benefit to anyone

01:47 - 47.260 to to pay

01:47 - 49.830 anything but funeral expenses.

01:47 - 51.144 For. That's why there

01:47 - 52.466 are fatal benefits,

01:47 - 53.569 that there are no

01:47 - 54.901 dependents, and that's why

01:47 - 55.860 there's always a

01:47 - 57.671 dependency analysis on that.

01:47 - 59.539 See what? I'm sorry.

01:47 - 00.403 I'm. I'm sorry. Could

01:48 - 01.441 you let me finish that?

01:48 - 02.542 I didn't hear your lines.

01:48 - 03.773 I hadn't finished.

01:48 - 05.011 I don't want to.

01:48 - 06.308 Yeah, I want you to

01:48 - 07.681 finish. I couldn't hear.

01:48 - 09.816 So you have fatal benefits.

01:48 - 11.442 Are payable because

01:48 - 12.819 of dependency.

01:48 - 14.688 You have to show. And the.

01:48 - 16.416 The act has different listings

01:48 - 18.325 depending on how many a spouse,

01:48 - 19.493 children, etc.

01:48 - 20.342 and when when a

01:48 - 21.995 spouse can be disqualified.

01:48 - 23.693 On the other hand,

01:48 - 25.799 the right to the specific

01:48 - 28.502 loss is a separate compensation.

01:48 - 29.836 It's it's it's

01:48 - 31.784 it doesn't matter whether

01:48 - 33.740 the person dies or not.

01:48 - 35.966 Those benefits are a right

01:48 - 38.712 that vests to the injured worker

01:48 - 41.234 as soon as that specific

01:48 - 44.284 loss, whatever it is, occurs.

01:48 - 46.091 And that is that worker's

01:48 - 47.420 asset, essentially.

01:48 - 49.251 So it is you have to look

01:48 - 51.057 at it perhaps as separate

01:48 - 52.381 pots or funds, but

01:48 - 53.860 they are separate.

01:48 - 55.573 And that's why you don't

01:48 - 57.030 have dependency here.

01:48 - 58.638 But the worker was

01:48 - 00.734 entitled to those benefits

01:49 - 03.010 as of the moment they accrued,

01:49 - 04.671 which is what Your Honor

01:49 - 06.439 wrote in the decision.

01:49 - 09.242 What was my. Decision?

01:49 - 10.143 Your decision?

01:49 - 12.512 And I do I have this idea.

01:49 - 13.631 Or I don't. Remember

01:49 - 14.581 what I did yesterday.

01:49 - 16.716 So we're I'm glad.

01:49 - 17.549 I remember when I

01:49 - 18.685 did an hour ago here.

01:49 - 21.688 It's 257,

01:49 - 26.393 a third, 1271.

01:49 - 27.787 Didn't I understand

01:49 - 28.895 your argument

01:49 - 30.738 and I understand the struggles

01:49 - 32.465 and it seems to be unfair.

01:49 - 34.868 However, didn't the General

01:49 - 36.269 Assembly make a policy

01:49 - 37.644 determination and

01:49 - 39.839 therefore they determined

01:49 - 40.942 how it was all

01:49 - 41.908 going to play out?

01:49 - 43.151 And it kind of goes back to

01:49 - 44.678 the conversation we had earlier

01:49 - 46.422 that the general

01:49 - 48.481 Assembly gets to decide

01:49 - 50.270 how all of this plays

01:49 - 51.751 out and they determine

01:49 - 54.060 what the employee gets and

01:49 - 56.423 what the employer has to pay.

01:49 - 57.408 And it appears to

01:49 - 58.692 me that this statute

01:49 - 00.911 is clearly written as to

01:50 - 02.629 what the General Assembly

01:50 - 04.898 has determined

01:50 - 06.621 and that this Court doesn't

01:50 - 08.735 have the authority to go around

01:50 - 10.354 that provision or somehow

01:50 - 12.305 write it out of the statute.

01:50 - 14.704 I'm not suggesting that this

01:50 - 16.676 court needs to specific loss

01:50 - 19.158 benefits accrue the right vests

01:50 - 21.648 as of the moment that become.

01:50 - 22.815 But doesn't section

01:50 - 24.017 three or 60 states

01:50 - 24.881 should the employee

01:50 - 26.119 die from some other cause

01:50 - 27.830 and the injury then they they

01:50 - 29.489 only get funeral expenses.

01:50 - 32.629 That is the essentially the

01:50 - 35.362 error of the state of Harris.

01:50 - 35.962 When you go

01:50 - 37.230 back to the original.

01:50 - 37.845 No, no, I'm not

01:50 - 38.798 talking about Harris.

01:50 - 39.580 I'm just talking

01:50 - 40.567 about the statute.

01:50 - 41.324 But that's what I

01:50 - 42.402 want to do. I'm sorry.

01:50 - 43.436 That's what I wanted to explain.

01:50 - 46.640 Again, the that's a result of

01:50 - 48.765 how the statute was codified,

01:50 - 50.677 not the actual language.

01:50 - 51.827 And that's something that the

01:50 - 53.146 General Assembly has to take up.

01:50 - 53.841 I mean, are we kind

01:50 - 54.581 of stuck with that

01:50 - 56.049 now that the General Assembly

01:50 - 57.639 has to make a determination

01:50 - 59.119 that they made an error

01:50 - 00.720 in codification?

01:51 - 02.133 No, it was the the

01:51 - 03.790 statute was written

01:51 - 06.717 so that initially 1921, there

01:51 - 09.295 was one provision of 306f

01:51 - 11.152 and 306f talked about what

01:51 - 13.033 benefits should the employee

01:51 - 14.301 die as a result of

01:51 - 16.002 the injury, etc., etc.

01:51 - 17.637 and nowhere in the act

01:51 - 18.872 and does it state

01:51 - 20.136 that if an employee

01:51 - 21.808 suffers a specific loss

01:51 - 23.039 that those benefits

01:51 - 24.344 cease or terminate

01:51 - 25.052 or anything else

01:51 - 26.079 at the time of death.

01:51 - 27.247 That's not in the act

01:51 - 28.982 they're payable at that time.

01:51 - 31.752 Ongoing Section

01:51 - 34.788 306f back in 1921.

01:51 - 35.603 And I can provide

01:51 - 36.523 this to the court

01:51 - 37.791 if you wish to see it.

01:51 - 40.122 That's the original act from

01:51 - 42.128 19 as amended in 1921,

01:51 - 44.077 ends with the separate line

01:51 - 46.066 that should the employee die

01:51 - 47.113 from a cause other

01:51 - 48.168 than the injury,

01:51 - 50.570 compensation shall cease.

01:51 - 54.574 Then that provision, as the Act

01:51 - 56.003 was codified, if no

01:51 - 58.044 longer exist, it's f one.

01:51 - 58.652 And as we know,

01:51 - 59.512 that's the lengthy,

01:51 - 00.814 lengthy provision

01:52 - 02.059 that has everything from

01:52 - 03.416 a series to compensation

01:52 - 04.401 and everything

01:52 - 05.819 else in the world.

01:52 - 08.822 306g was made

01:52 - 11.591 into a separate provision

01:52 - 13.343 and it was codified by

01:52 - 15.562 whoever does the codification.

01:52 - 16.196 However, that.

01:52 - 17.162 Let's just look at this

01:52 - 18.431 case from our point of view.

01:52 - 19.189 How, how would

01:52 - 20.500 we write this opinion?

01:52 - 22.402 General Assembly Yeah.

01:52 - 23.783 Erode and codification,

01:52 - 25.171 and so we're going to

01:52 - 26.457 look at that and say

01:52 - 28.174 that it doesn't apply here

01:52 - 29.809 because you made a mistake

01:52 - 30.954 and because there's a

01:52 - 32.545 conflict within the statute

01:52 - 34.371 that you get specific loss

01:52 - 36.416 at the time that is awarded

01:52 - 37.748 and you can never

01:52 - 38.618 have that removed.

01:52 - 39.886 Therefore claimant wins.

01:52 - 40.740 Is that how we would

01:52 - 41.688 address the opinion?

01:52 - 42.422 I mean,

01:52 - 43.530 some of it seems

01:52 - 44.924 a little out there

01:52 - 45.821 that we don't have

01:52 - 46.926 a strong foundation.

01:52 - 50.463 I would suggest that

01:52 - 52.606 there needs to be a one, a

01:52 - 54.434 complete statutory analysis,

01:52 - 55.315 which was not done

01:52 - 56.236 in a state of Harris.

01:52 - 57.169 State of Harris only

01:52 - 58.438 looked at three or six G.

01:52 - 00.470 You can't look at the Workers

01:53 - 02.509 Comp Act with one provision

01:53 - 04.043 when there are others

01:53 - 05.371 that apply, including the

01:53 - 06.813 provisions of death, etc.

01:53 - 09.472 If you follow the brief

01:53 - 11.084 that we have filed,

01:53 - 13.751 it talks about those provisions,

01:53 - 15.889 looks at those provisions,

01:53 - 17.803 and you can see from that

01:53 - 19.793 that there was never an intent

01:53 - 20.794 and there's nothing in

01:53 - 22.705 the statute that suggests

01:53 - 24.931 that specific loss benefits

01:53 - 26.399 or any other benefit.

01:53 - 28.310 But that's essentially the

01:53 - 30.303 mankind would cease to be

01:53 - 32.036 a benefit or would cease to

01:53 - 33.673 accrue at the time of death.

01:53 - 35.485 Then you add in

01:53 - 37.377 the fact that when

01:53 - 38.698 whomever did the

01:53 - 40.513 codification, because

01:53 - 42.766 that's what happened here,

01:53 - 44.717 when they did that codification,

01:53 - 46.674 they made 306ga

01:53 - 49.189 separate provision.

01:53 - 50.224 And that was not

01:53 - 51.591 done by the legislature.

01:53 - 53.388 The legislature enacted

01:53 - 55.428 three or six throughout.

01:53 - 57.269 And then in codifying

01:53 - 59.332 it, three or six g becomes

01:53 - 01.845 77 piece 513 well, that's

01:54 - 05.071 not an act of the legislature.

01:54 - 06.588 The legislature has

01:54 - 08.374 never taken an act here

01:54 - 10.589 that would be consistent

01:54 - 12.278 with depriving rights.

01:54 - 13.757 And in fact, when the

01:54 - 15.315 statute was modified

01:54 - 17.588 in 1972 to its current

01:54 - 19.953 provision at that time,

01:54 - 22.262 this court and the Pennsylvania

01:54 - 23.990 Supreme Court had to deal

01:54 - 26.220 with three decisions, one

01:54 - 28.995 called KUJAWA versus Latrobe,

01:54 - 30.756 that both this court and

01:54 - 32.599 the Supreme Court ruled

01:54 - 35.198 upon, and Swindon, all of which

01:54 - 37.637 came down in 1971 and 1972.

01:54 - 41.074 And all of those were based upon

01:54 - 44.277 the harshness of depriving

01:54 - 46.019 someone who died of benefits

01:54 - 48.081 from another cause of benefits.

01:54 - 49.883 There was never a discussion.

01:54 - 50.705 There's nothing in

01:54 - 51.718 the jurors prudence.

01:54 - 53.049 There's nothing in the General

01:54 - 54.387 Assembly legislative history

01:54 - 56.343 that suggests or supports

01:54 - 58.258 an interpretation of the Act

01:54 - 00.737 that would deprive a claimant

01:55 - 02.929 who suffers a specific loss,

01:55 - 03.977 which vests at that

01:55 - 05.531 moment from those benefits

01:55 - 07.148 merely because they died

01:55 - 08.868 because of the work injury.

01:55 - 10.883 So you're saying we should rely

01:55 - 12.672 on those cases as the bridge?

01:55 - 14.941 Yes, it's a history.

01:55 - 16.457 And I do apologize

01:55 - 18.177 that we didn't address

01:55 - 19.412 that in the brief.

01:55 - 20.323 But in preparing

01:55 - 21.414 for the argument,

01:55 - 22.453 I kept saying there's

01:55 - 23.650 something missing and.

01:55 - 25.159 Can you provide us the name

01:55 - 26.686 of those cases in the citation?

01:55 - 28.187 So I can do that.

01:55 - 30.185 And I also have here

01:55 - 32.692 the actual Senate bills

01:55 - 35.968 which show the amendment

01:55 - 39.399 and how 306g was amended,

01:55 - 41.145 including highlighting

01:55 - 43.036 the deletion and insertion

01:55 - 44.155 so that if the Court

01:55 - 45.271 would like to see that,

01:55 - 46.339 I do have that, but

01:55 - 47.640 I'm happy to do that.

01:55 - 48.597 However, maybe it.

01:55 - 49.776 Prefers I apologize.

01:55 - 51.529 It wasn't a post submission

01:55 - 53.680 and a post argument submission.

01:55 - 56.149 I provide it to counsel as well.

01:55 - 57.350 I will do that. Thank you.

01:55 - 57.750 Thank you.

01:55 - 58.734 Over meantime, can you

01:55 - 00.219 just provide the case citation?

01:56 - 02.322 Absolutely referred to? Yes.

01:56 - 06.159 Who won is

01:56 - 10.029 to 88 a second to 847,