00:00 - Welcome to the Pennsylvania supreme court September argument session in city hall in

00:05 - Philadelphia.

00:07 - My name is Leah mints and with me as Bruce marin steam.

00:10 - We are here to provide you with a brief summary of the cases and issues

00:15 - that the court will be considering as part of this argument Sasha.

00:18 - First some brief back round about the court.

00:21 - The Pennsylvania supreme court is the nation's oldest appellate court.

00:26 - Just last year the court celebrated it's

00:28 - three hundredth anniversary.

00:30 - The court hears appeals from

00:32 - primarily from Pennsylvania's to intermediate appellate courts.

00:36 - The superior court and the commonwealth court.

00:39 - In fact the supreme court receives around two thousand requests

00:43 - each year

00:44 - from parties seeking review from of these

00:47 - intermediate court decisions.

00:49 - Today you will hear arguments

00:51 - in some of the those cases

00:53 - that this court has selected for further review.

00:58 - First stop for today's argument session is Kramer vs nationwide property

01:03 - and casualty insurance company

01:06 - case number one oh three am a p twenty twenty two.

01:10 - This case was brought by two homeowners who contend that under the terms of their

01:15 - homeowners policy.

01:16 - Issued by nationwide property and.

01:19 - Casualty insurance company.

01:21 - Nationwide is required to defend the homeowners in a wrongful death action.

01:26 - Nationwide argued that it has no duty to defend the homeowners

01:30 - because the death at issue was the result

01:32 - of a drug overdose which is expressed expressly excluded from the policy.

01:38 - The trial court found that nationwide did have a duty

01:41 - to defend because the exclusion for controlled substances

01:45 - did not apply.

01:46 - On appeal the superior court affirmed the ruling but on a different basis.

01:52 - The superior court concluded

01:54 - that the controlled substance

01:56 - provision did apply to the claims for bodily injury

01:59 - but that nationwide had a duty to defend the homeowners to the extent the underlying

02:04 - action

02:05 - sought emotional distress damages.

02:08 - Before this court nationwide now argues that the superior courts concur illusion that

02:13 - it had a duty to defend.

02:14 - Based on claims for

02:16 - emotional distress damages was wrong.

02:19 - Nationwide contends that it's policy only covers damages for bodily injury

02:24 - and that emotional

02:25 - distress damages do not fall within that definition.

02:29 - Accordingly.

02:30 - According to nationwide it does not provide.

02:33 - Coverage for emotional distress damages

02:36 - and therefore has no duty to defend the homeowners.

02:39 - The homeowners by contrast argue that the coverage under the insurance policy is much

02:44 - broader.

02:45 - According to the homeowners

02:47 - the insurance policy provides coverage for all claims that are

02:50 - due to bodily injury.

02:52 - Not just the bodily injury

02:54 - damages themselves.

02:56 - According to the homeowners the due to language in the policy

03:00 - extends coverage to claims like those for emotional distress damages.

03:04 - Let's listen in.

03:40 - Good morning everyone.

03:42 - Welcome to the first day of our fall session.

03:47 - Here in Phillip.

03:49 - As.

03:49 - You may know because I say it all the time.

03:53 - The Pennsylvania supreme court is the oldest appellate court in North America

03:57 - our roots date back to William penn's provincial court of sixteen eighty four

04:03 - and our supreme court was formally established pursuant to the the.

04:08 - Pennsylvania judiciary act of seventeen twenty two.

04:12 - Last year we celebrated

04:13 - our court's historic.

04:15 - Three hundredth anniversary

04:17 - here in Philadelphia.

04:19 - In it's earliest years the court actually convened in private residences.

04:24 - While the lower courts

04:26 - met in

04:27 - ale house

04:28 - you can draw whatever conclusions you want from that.

04:32 - In seventeen to seven the city of Philadelphia constructed the townhouse which is a

04:37 - two story house

04:39 - and market that function does an early city hall.

04:43 - The court conducted it's business at the townhouse until seventeenth forty three.

04:48 - When it moved to it's own courtroom in the state house now independence hall.

04:54 - Beginning construction in eighteen seventy one it took thirty years to construct this

04:59 - city hall.

05:00 - It was designed in the French second

05:03 - empire style by John MacArthur Jr

05:06 - and Thomas eu's stick

05:07 - Walter.

05:09 - Sitting atop the building as you know is a bronze statue of William penn.

05:14 - It stands at thirty seven

05:16 - feet tall and weighs twenty seven tons.

05:19 - Mr penn statue faces northeast and points to a spot.

05:24 - Where he signed a treaty of friendship.

05:26 - With the local native amer chickens and sixty Navy to.

05:30 - This city hall has seven hundred rooms which house functioning offices for all three

05:35 - branches of government.

05:37 - This cork became it's first tenant.

05:40 - In the building here on January first.

05:44 - Eighteen seventy seven.

05:46 - After the official opening.

05:48 - Reporters deem this to be

05:51 - the most handsome courtroom in the country.

05:54 - And concluded that some of the more

05:57 - fastidious lawyers.

05:58 - Will hereafter take only supreme court cases

06:02 - in order

06:03 - that they may practice in this court palace

06:07 - will see that

06:08 - holds true today.

06:10 - Before we hear the first case I would like to remind the council of a few things.

06:15 - Appellant's counsel please approach the podium when your case is called.

06:20 - I will then give a short summary of the case

06:22 - please begin by stating your name and the party represent

06:26 - and please introduce your co counts

06:28 - to the court.

06:30 - The justices are familiar with the cases so ask that you would

06:34 - avoid any unnecessary recitation of facts or procedural history.

06:39 - And instead focus on the main issues on which we granted review.

06:45 - Council is welcome to rely on their briefs for the particular issues.

06:50 - In cases in which there are multiple parties

06:53 - represented by separate council.

06:56 - Council should avoid

06:58 - repeating the same arguments as prior counsel.

07:01 - Please try not to interrupt the justices when they are asking you a question.

07:07 - A justice

07:07 - question of honestly it's not meant to trip you up

07:11 - but rather indicates that there are particular issues we want to explore for further

07:15 - with you.

07:16 - While there is no set time limit for argument in our supreme court.

07:21 - I will advise counsel when the court is satisfied

07:24 - that all of it's questions have been answered and at that time

07:28 - I asked

07:29 - you conclude your argument.

07:31 - Mr miner would you call the first case.

07:46 - In this matter

07:47 - mother filed a wrongful death and survival action against homeowners.

07:52 - Alleging that they were negligent

07:54 - an interesting their home to their son.

07:58 - Who engaged in illegal drug activity.

08:01 - Which resulted in the fatal drug overdose of mother's son.

08:06 - The wrongful death claim was interpreted as encompassing claims for mother's

08:10 - emotional distress.

08:12 - Arising from her son's death.

08:15 - The homeowners insurer.

08:17 - Refused to defend homeowners in that action contending.

08:21 - That the controlled substance exclusion in the homeowners policy barred coverage.

08:26 - Homeowners subsequently filed this declaratory judgment action.

08:31 - Seeking an order directing the insurer to provide them with a defeat hence

08:35 - the trial court granted summary judgment in favor of the homeowners

08:40 - and the superior court affirmed.

08:42 - Finding that the homeowners policy provided coverage for third party emotional

08:47 - distress damages

08:49 - sought in mothers tort action.

08:52 - Before US the insurer contends.

08:54 - That the superior court erred

08:57 - in it's interpretation of the policy.

08:59 - Arguing that the policy provides liability coverage only for bodily injury

09:05 - and expressly excludes.

09:08 - Claims related to emotional distress.

09:11 - Today we examine the propriety

09:13 - of the superior court's holding and

09:15 - in that regard.

09:18 - Morning your honors may it please the court my name is Nicholas cummins

09:21 - I represent the appellant nationwide property and casualty insurance company in this

09:25 - matter

09:26 - it is an honor and a privilege to be with you this morning.

09:28 - The nationwide.

09:30 - Homeowners liability insurance policy at issue in this case has what is probably the

09:34 - most common formulation.

09:36 - Of an ensuring agreement you'll see in a lion

09:38 - the insurance policy.

09:39 - It's just nationwide will pay damages

09:41 - be insured is legally obligated to pay due to an occurrence.

09:45 - The policy defines an occurrence as bodily injury

09:49 - or property damage that results from an accident

09:51 - and then it goes on to define bodily injury and it says.

09:54 - Emotional distress is not bodily injury unless it's the direct result

09:58 - bodily harm.

09:59 - So then functionally what the nationwide policy says is

10:01 - it will pay damages

10:03 - due to bodily injury.

10:06 - Plaintiff's argument here today before the court.

10:09 - Is that.

10:10 - Even in instances where the bodily injury itself is exclude.

10:14 - The policy covers more than just bodily injury

10:17 - or consequential damages that flow from that bodily injury.

10:20 - And that even in circumstances where that bodily injuries excluded.

10:24 - Nationwide nevertheless has to pay for these

10:26 - consequential damages flowing from the bodily injury.

10:30 - The plaintiffs'

10:31 - argument if accepted.

10:32 - Would

10:33 - wreak havoc on liability insurance companies in this commonwealth.

10:36 - The argument

10:37 - essentially would expose insurance carriers to unforeseen and unforeseeable

10:41 - consequential damages that they didn't contract to undertake.

10:45 - It would essentially nullify the effect of exclusions contained in.

10:49 - Insurance policies throughout the commonwealth

10:51 - the plaintiffs'

10:51 - argument is not in keeping with the plain language of the insurance policy.

10:55 - It's not in keeping with the intentions of the parties to the contract

10:58 - and it doesn't represent a common sense reasonable interpretation of the contract.

11:03 - Nationwide asked the court to interpret the contract

11:06 - to mean what it says

11:07 - the contract covers.

11:08 - Only bodily injury

11:10 - and if the last issue is not bodily injury

11:12 - there is no coverage

11:14 - for the loss.

11:16 - Your honors I'd like to take a step back and begin by

11:20 - the basic concept of how we interpret liability insurance policies

11:23 - to determine whether a claim is covered the first thing that we need to do.

11:27 - Is look at the ensuring degree

11:28 - which is the affirmative Grant of coverage the policy

11:31 - and we have to determine whether or not the clean

11:33 - guess

11:34 - is.

11:35 - The

11:35 - definition of

11:37 - bodily injury.

11:39 - And.

11:40 - The last time the last sentence says that.

11:44 - It doesn't mean emotional distress etc unless they do direct result of bodily injury

11:49 - what

11:49 - weapons that language me

11:51 - yesterday so

11:51 - direct result of bodily carpet

11:54 - and

11:54 - a couple of things that we take from that.

11:56 - The firm

11:57 - is that

11:58 - we know that emotional distress itself

12:00 - can't be bodily harm

12:02 - because then the policy would be circular would say

12:04 - motion of distress as to.

12:06 - Stop the referendum because I think od.

12:09 - On the insured would say

12:11 - that the parents are emotional distress was a direct result of their son's death.

12:17 - And so.

12:18 - Little

12:18 - time with that.

12:20 - And

12:20 - this is what's wrong with that jar

12:21 - so the post uses that the terms direct

12:24 - result.

12:25 - Of bodily harm.

12:27 - The term direct result is not defined in the policy

12:29 - but that doesn't mean it's ambiguous we give

12:32 - the policy its plain and ordinary meaning.

12:33 - When you look up the dictionary definition.

12:35 - Of direct

12:36 - it means purse seating immediately from a source

12:39 - and the dictionary definition of immediate is without any intervening

12:43 - cause or agents.

12:45 - At least answer the question though.

12:47 - I mean I I think that the insured would say.

12:51 - My emotional

12:52 - distress is a direct result of my son's

12:55 - death.

12:56 - And the point is your.

12:58 - Ambiguity does that get construed in favor of the insurer.

13:01 - If there is an ambiguity it does but there is not ambiguity in this case and the

13:06 - reason is the term direct result as I said the dictionary definition.

13:09 - Is an immediate cause and effect relationship with no intervening causes in between.

13:13 - And when we

13:14 - imagine or remember what we're talking about here your honor.

13:17 - Is

13:17 - wrongful death.

13:19 - Emotional distress so this is not a situation where the person who was injured

13:23 - suffered emotional distress

13:24 - and it's not even a situation were say a bystander witnessed the accident

13:28 - and the emotional impact of seeing that caused the emotional distress

13:31 - and wrongful death we're talking about the beneficiaries the family members.

13:35 - And it's really under the rubric of loss of services is how we term it

13:39 - but the mr Murray is deceased.

13:41 - One of the services he no longer provides to his family his.

13:45 - Support short companionship etc

13:47 - and due to the personal makeup of the family

13:50 - members that causes them emotional distress

13:51 - so particularly in

13:53 - wrongful death emotional distress.

13:56 - This is a very much removed situation.

13:59 - From the bodily harm.

14:01 - That where there is initially covered.

14:03 - Under the policy

14:04 - there are multiple things

14:06 - I.

14:07 - Wrong with this case first of all there were no damages pleaded

14:11 - in the complaint

14:12 - none whatsoever correct or not.

14:14 - I.

14:15 - Was that ever cleared up along the way I mean we share a

14:18 - you know a

14:19 - motion for a more specific cleaning or anything of that nature.

14:23 - No

14:23 - to

14:23 - to the best of my knowledge and I'm not

14:26 - involved in the tort case obviously directly but

14:27 - there was never emotion for more specific pleading to my knowledge

14:30 - and you're honor.

14:31 - The I think it's probably fair to say on behalf of both parties that.

14:34 - The superior court's decision is not something that anyone had.

14:38 - Let me ask you what you think.

14:40 - The holding.

14:42 - Of the superior court wise in this case so the super earlier court's holding.

14:47 - Was that the controlled substances exclusion.

14:51 - Only applies to bodily injury.

14:53 - And that the emotional distress damages that the superior court decided were part of

14:57 - the case.

14:58 - Those aren't excluded from coverage

15:00 - and so then the superior court symbol of emotional distress damages aren't

15:03 - excluded.

15:04 - The nationwide has to defend those claims their

15:07 - protests actually covered under the policy

15:08 - of course the problem that your honor is is that the policy only covers bodily injury

15:11 - to begin with

15:12 - so if the emotional distress is not bodily injury.

15:15 - Well then it's not covered in your honor if

15:17 - I was remiss to not making a point earlier.

15:20 - The court had suggested that probably both parties in this case would disagree as to

15:24 - whether or not

15:25 - the emotional distress we're talking about is bodily injury I think that's not true I

15:28 - think that.

15:29 - Both my client

15:31 - and the plaintiff agree with the superior court.

15:33 - That the emotional distress at issue.

15:35 - Doesn't fall within the definition of bodily injury and that that question really not

15:39 - before US know and I I agree

15:41 - that

15:42 - that was.

15:42 - The point everyone has cautioned US not to

15:46 - decide I didn't shoot for whatever re and so.

15:48 - But it's not in this case.

15:50 - It.

15:51 - Did the superior court.

15:55 - Consider

15:56 - the definition of occurrence.

15:58 - In it's opinion it did not indicate that it considered that one way or the other that

16:02 - they said it to a correct they mean certainly part of the opinion they list

16:07 - and appropriately so all of the provisions of the policy that come into play in their

16:12 - interpretation of the contract nothing wrong with that.

16:15 - No no there's nothing wrong with it the court citing the insuring agreement

16:18 - what the court never seems to have pulled out and it's opinion I can

16:21 - obviously tell you what the court was thinking is that

16:23 - they note that you need an occurrence but they don't the court doesn't point out that

16:26 - an occurrence needs to be bodily injury.

16:28 - The superior court overlooked that

16:30 - and this goes back to the ensuring degree your honor is that

16:32 - in the first instance

16:33 - you need a covered occurrence

16:35 - and if it was the superior court's opinion.

16:37 - That all we have in this case

16:39 - is emotional distress which is not bodily injury

16:42 - well that's not covered to begin with because when you read the insuring agreement.

16:45 - It applies only to bodily injury

16:48 - and if this emotional distress is not bodily injury.

16:51 - Then it's not covered.

16:52 - Initially there's there's no reason to look at the exclusions because there's just

16:55 - not coverage

16:56 - for this emotion with it's just that we're here talking about today or you're you're

16:59 - in it you're in a heads you win tails you lose until you win situation

17:03 - because.

17:05 - If it's not bodily injury it's not covered.

17:08 - If it is bodily injury.

17:10 - The superior court was wrong and it was it should have been excluded from coverage

17:13 - under the

17:14 - under the drug exclude then

17:16 - that's exactly correct because superior court's.

17:19 - Analysis of the drugs the

17:20 - exclusion was it was not bodily injury

17:22 - and.

17:23 - The exclusion excludes all bodily injury it didn't carve out.

17:27 - Emotional distress bodily injury and it was all bodily injury.

17:31 - Correct that the reason the exclusion doesn't carve out emotional distress bodily

17:34 - injury specifically because it's not covered to begin with so of course you do well

17:38 - but I think I think I'm going to kind of I'm sort of in this situation too I'm trying

17:41 - to figure out what you want US to decide on what you don't want US to do.

17:44 - And what does

17:45 - the superior court actually.

17:47 - Help.

17:47 - His case I.

17:49 - Think what the superior court said

17:51 - I think.

17:53 - Is.

17:54 - Their

17:55 - disappear court I don't think baby appreciated the fact that and.

17:59 - That.

18:01 - The bodily injury requirement.

18:03 - For coverage and that somehow some way.

18:07 - Emotional distress damages were still available in the absence of a bodily injury.

18:12 - I

18:13 - saw when they when the superior court got to the exclusion and they saw the word

18:16 - bodily injury they went

18:18 - aha the exclusion only applies to bodily the injury they pled emotional distress

18:22 - damages that is not bodily injury but they didn't.

18:25 - Maybe realize that the definition of bodily injury.

18:27 - Includes certain emotional distress damages not all but some.

18:33 - Thought you went to the superior court everybody agreeing there was bodily injury

18:35 - here

18:36 - that's corrected before the superior court that there was no dispute that

18:39 - there is a bodily injury alleged it's the death of mr Murray and no one ever

18:42 - suggested that there was

18:43 - emotional distress that wasn't bottle your key argument was the drug exclusion

18:47 - if that's the only argument that was better that that's correct.

18:50 - What do you want US to do what are you asking.

18:54 - As you enter.

18:55 - The third time maybe

18:56 - it's been asked but what do you want US to do

18:58 - what I'm asking the court to rule your honor

19:00 - is that

19:01 - the emotional distress at issue in this case is not bodily injury

19:05 - that under the plain language

19:07 - of the insuring agreement.

19:08 - It's not covered I thought you didn't want US to address that issue while we just say

19:12 - because the parties are assuming emotional distress is bodily injury.

19:16 - The drug exclusion.

19:18 - Excludes it

19:19 - it's done

19:19 - over the superior the superior court erred

19:23 - by not applying the drug exclusion that's it.

19:24 - That's

19:24 - that's exactly right an embryo we will fight another day

19:28 - because you all seem to be conceding for purposes of this issue the drug exclusion

19:32 - that is bodily injury

19:33 - absolutely that's that's absolutely correct your honor.

19:36 - That that's what it comes down to.

19:38 - Narrow opinion on that one issue

19:40 - I'm sorry you're asking for a narrow opinion on that one issue that that's correct

19:44 - your honor.

19:45 - Since you aren't going to have time for rebuttal I your.

19:49 - Opposing counsel's argument is that bodily injury is a trigger.

19:54 - From which.

19:55 - I and it's not a coverage tissue it's a

19:58 - triggering

19:59 - event.

20:00 - What's your response to that.

20:02 - Is the responses this year so

20:04 - as I understand

20:06 - my opponent's argument policy covers damages due to bodily injury.

20:10 - And the plaintiff's argument is that

20:12 - while this emotional distress is a damage.

20:14 - Where did the bodily injury the bodily injury being the death

20:17 - and so therefore the emotional distress gets covered and the exclusion only takes

20:21 - away the bodily injury

20:22 - but we still have this emotional distress as the damage due to bodily injury that

20:25 - that's how I understand the argument.

20:27 - The problem with that argument is that.

20:29 - The policy doesn't cover consequential damages the flow from the bodily injury covers

20:34 - only the bodily

20:35 - injury.

20:35 - Itself and that's why the policy has a very specific definition of

20:39 - what is bodily injury

20:40 - and there's

20:41 - the problems with the with the plaintiff's argument are textual mainly.

20:45 - In that what the policy.

20:48 - Appears to be the plaintiff's

20:49 - understanding the word damages means harm rights or emotional distress as a harm

20:52 - that's related to bodily injury

20:54 - but that's not what dam it just means

20:56 - damages means.

20:57 - Money

20:58 - owed is compensation for an injury that comes from dictionary definitions the

21:01 - restatement of torts

21:03 - and it's also from the

21:04 - plain language of the policy because it says nationwide will.

21:07 - Pay damages

21:08 - the insured is legally obligated

21:09 - to pay.

21:10 - So

21:11 - when the policy says it pays damages due to bodily injury

21:14 - what it saying is that

21:16 - it will pay money

21:17 - owed his

21:18 - compensation

21:19 - due to bodily injury and then here's your definition of bodily injury

21:22 - but what the plaintiff is asking the court to do in this case the plaintiff is saying.

21:26 - Well in the underlying towards suit we could be held legally obligated to pay

21:30 - for emotional distress

21:31 - and we would like that to be covered but that's not what the policies.

21:34 - Like you're you're client can be responsible for emotional.

21:38 - Distress damages yes it's a direct.

21:41 - Result of bodily harm only in that specific

21:45 - circumstance that falls within the definition.

21:47 - That brings me back to my question which is I think.

21:50 - Not sure about this but I think that's where the.

21:53 - Insurance argument flows from and.

21:56 - That notion that it's

21:58 - a direct result of bodily harm.

22:02 - It's incorrect to say that your your client is not responsible for.

22:07 - Emotional distress damages.

22:09 - It it's incorrect to say it

22:11 - only

22:11 - only in the context of.

22:13 - As stresses direct result

22:15 - in that circumstance

22:16 - absolutely that would qualify as bodily injury then of course it would be excluded

22:20 - but yes if it's the direct result of bodily harm from.

22:23 - Then it will be covered in apologies anyway because of the.

22:27 - Controlled substances exclusion would have your position that's your answer.

22:32 - That is I mean you're you're.

22:34 - I know that we're making this case so complicated

22:36 - that your answer is.

22:38 - To

22:38 - as is

22:39 - it's a coverage exclusion it's not a damages exclusion it's a coverage exclusion

22:43 - that's

22:44 - no bodily injury you can't get damage and the exclusion is a coverage exclusion

22:48 - absolutely one hundred percent and that's why you folks move that's why as I

22:51 - understand it.

22:53 - The the.

22:54 - This is why it's so

22:55 - peculiar how the superior court handle it because.

22:58 - I thought you went to them.

23:00 - For an adjudication of whether.

23:03 - The controlled substances exclusion.

23:06 - I.

23:06 - Kicked in here and

23:08 - there.

23:09 - You agree that.

23:11 - You.

23:13 - There was a cross motions for summary judgment right practitioner.

23:16 - It's very odd output given the input

23:19 - it is in your honor I mean

23:21 - when the case went to the superior court and in the trial court

23:24 - no one discussed.

23:25 - If there was emotional distress or if that was step just wasn't within anyone's

23:28 - contemplation.

23:30 - Everyone I think everyone went there believing

23:32 - that the only thing we're talking about that is

23:33 - mr Murray's death and that is bodily injury

23:36 - and nationwide decrease that would ordinarily be covered

23:39 - but for the exclusion and

23:40 - when that's what was argued.

23:41 - In the superior court essentially agreement said yes

23:44 - the bodily injuries excluded.

23:46 - But we think that there's this emotional distress that is not excluded so therefore

23:49 - it must be covered but where that came from.

23:51 - I honestly can't say I can tell you that

23:53 - we were surprised on our side

23:54 - to hear that

23:55 - well and I sense that you're broadening your arguments simply out of fear that we're

24:01 - going to go there.

24:03 - You.

24:04 - Want to call it feel empathy

24:05 - concern

24:06 - concern.

24:07 - Because look what the superior court yeah

24:11 - you folks may.

24:12 - Handle this any way you like it.

24:14 - There was too strong.

24:16 - We get it.

24:17 - Cover all

24:18 - thank you very much.

24:26 - Karnak.

24:28 - Morning may please the court Kevin cornish

24:30 - tourney for the appellees Stewart Kramer

24:33 - and Valerie Connor cella.

24:35 - Thank you again for your time this morning justices.

24:39 - I think the questions

24:41 - are getting right to the point

24:43 - it is peculiar what the superior court did

24:46 - but what we are dealing with is whether the superior court.

24:50 - Made a proper and reasonable interpretation

24:54 - of this insurance policy.

24:56 - And one thing we need to keep in mind too

24:58 - that I heard during and

24:59 - council's argument

25:00 - as we're talking he mentioned the word pay.

25:03 - Is not an issue of payment

25:05 - right now it's a duty to defend

25:07 - does the policy provide.

25:09 - A duty to defend at this stage are we determining

25:13 - direct result.

25:15 - Of bodily harm are we determining

25:17 - where the damages came from are we determining.

25:21 - Whether or not

25:22 - the

25:23 - bodily harm came from.

25:25 - The deceased's injury or the mother's emotional distress or the mental anguish

25:31 - we're not making those determinations at this stage

25:34 - the trial court

25:35 - we'll have to conduct a trial

25:37 - whether that's before a judge or a jury and there will be findings

25:40 - about where

25:41 - the damages came from

25:43 - what caused the harm.

25:45 - We're taught.

25:47 - Don't really matter though I mean

25:49 - if.

25:50 - I recognize the duty to defend is different from the the duty to pay but we don't

25:56 - require defense where the policy clearly does not provide any coverage and.

26:02 - The

26:03 - the only way regardless of how you want to

26:07 - categorize the emotional most tunnel damages.

26:09 - Is for it to be a covered event to prefer to be an occurrence.

26:12 - Is for the emotional distress to equal bodily injury.

26:16 - That's

26:17 - that's the only thing it's the only way it gets that right if it doesn't equal bodily

26:20 - injury there's no coverage well I dunno that I would agree that you would have to

26:24 - equal bodily injury and that's the important part of this tree vega vs scope the

26:28 - trigger being

26:29 - what is covered

26:30 - scope.

26:32 - When is it

26:33 - cover trigger scope right

26:35 - and I think the policy we will pay damages.

26:38 - And insured is legally obligated to pay due to an occurrence

26:42 - due to a bodily injury.

26:44 - So the question first is we will pay damages doesn't say we will pay

26:49 - bodily injury damages it doesn't say we will pay out.

26:52 - We will pay any kind of damages you want we'll pay damages

26:55 - to the sky and beyond or whatever

26:58 - due to an occurrence.

26:59 - In the absence of an occurrence we're going to just pay damages

27:02 - and there was an occurrence in this case that mean a bodily injury and the flowing

27:06 - from that

27:07 - UK could have

27:08 - various kinds of damages including

27:11 - where you agree you agree you needed to have a bodily injury.

27:14 - Under

27:14 - yes to that property damage but that's why I think you all went to the superior court

27:18 - everybody agreed there was a bodily injury or at least there had to be a bodily

27:22 - injury the issue.

27:23 - To me.

27:24 - Is the exclusion.

27:26 - And the exclusion is an excuse Asian of coverage.

27:29 - Oddly injury

27:30 - is an exclusion of coverage

27:32 - I I.

27:33 - I.

27:34 - Agree that

27:35 - the issue that's why we went to the superior court

27:38 - that's why the trial court wrote it's opinion

27:42 - we were focused on the controlled substance.

27:43 - Exclusion

27:44 - that I follow up on just as broad

27:46 - question so.

27:48 - Given that

27:49 - given that as you

27:50 - as you correctly told justice Robson.

27:54 - And as we've established you folks went to the superior court for that adjudication.

27:59 - You didn't get it.

28:02 - Why can't we.

28:05 - Interpret that exclusion now and dispose of the case on that basis.

28:09 - Well I.

28:10 - I think the reason is because that wasn't within the scope of review

28:14 - I think the concern and that was certainly a concern that

28:18 - our side raised when this the petition was filed

28:22 - and our response to that was.

28:24 - Why we have this issue that the superior court dealt with

28:27 - but we also have our issue here and I don't believe I my clients don't believe

28:32 - that the superior court did

28:33 - nationwide will disagree that the superior court ruled on the controlled substance

28:38 - exclusion.

28:39 - I don't think it did I don't think you can interpret what the superior court did.

28:43 - As

28:44 - deciding that controlled substance

28:46 - I dunno I don't understand how you.

28:48 - The superior court basically said that

28:51 - they they they divorced emotional distress.

28:54 - Damages.

28:56 - From.

28:57 - The bodily injury

28:59 - exclusion.

29:02 - And that's how they that's how they rationalized how the exclusion did not apply

29:05 - because they said the exclusion doesn't apply to a category of.

29:09 - Damages

29:10 - how

29:11 - isn't that an interpretation of that clause that is before US it's an interpretation

29:16 - but that's focused on the damaged section

29:18 - whereas the controlled substance exclusion as the arguments were made to the trial

29:23 - court and to the superior court.

29:26 - Were whether the cause of the loss.

29:29 - Under the policy

29:31 - the controlled substance exclusion only comes into play if the.

29:35 - Bodily harm results.

29:37 - Are from

29:39 - a controlled substance

29:40 - the claims ago against my clients in this case

29:43 - are that they were not involved.

29:45 - In providing drugs

29:46 - they weren't even there when it happened the claims that gets my clients are

29:49 - negligent entrustment

29:51 - negligent supervision

29:52 - type claims

29:53 - so the question then

29:55 - is

29:55 - did.

29:57 - The damages or we don't know because there hasn't been a trial

30:01 - did the damages if any that flow from.

30:04 - What my

30:05 - the allegations against mr Kramer and mrs Khan a cielo.

30:08 - Whether those are result of controlled substance or their negligent entrustment

30:13 - negligent supervision

30:15 - no national

30:15 - policy exclusion doesn't talk about damages the policy exclusion talks about bodily

30:20 - injury.

30:21 - It.

30:22 - So if you if it applies to all bodily injuries

30:27 - as a result of the illegal use of drugs

30:28 - which you have you agree happened right that

30:30 - the death arose here because of

30:32 - the illegal use of drugs.

30:34 - But

30:35 - I agree that it contributed but the

30:37 - the policy says

30:39 - that the controlled substance.

30:40 - Exclusion applies

30:42 - if the loss results from the use of drugs

30:45 - the claims against my there could be multiple causes for the loss

30:49 - it could be the drugs

30:50 - it could be the negligent entrustment it could say the loss or the bodily injury

30:54 - the bodily injury right

30:56 - so I I was using interchangeably but.

30:59 - I'm not sure I would use it interchangeably but.

31:01 - I'm trying to say with the policy language but but.

31:04 - The policy is fairly straight

31:05 - straightforward policy I'm not sure how you can drafted any any clearer.

31:10 - You have.

31:11 - Two types of occurrences that will trigger coverage a duty to pay damages as you say.

31:16 - Property damage which we're not talking about here

31:19 - and bodily injury.

31:20 - And then you go to the exclusion said actions and says

31:23 - we will not pay for these

31:25 - types of bodily injuries

31:26 - period.

31:27 - It seems to me a fairly straightforward.

31:30 - Contract interpretation and application

31:33 - and i'm

31:34 - I'm struggling with your

31:35 - reason for

31:36 - for your argument as to why it's not again this was these were the arguments that we

31:40 - didn't brief for this court but the idea is is

31:43 - what the the exclusion says we don't.

31:46 - Cover bodily injury resulting from.

31:50 - The use.

31:51 - Etc etc of a controlled substance to your argument then

31:55 - following that would be.

31:57 - The bodily injury here

32:00 - was a result of.

32:03 - It could have been multiple things that could have been the drugs it could have been

32:06 - the negligent entrustment it could have been the negligent supervision but for the

32:09 - negligent entrustment that led to the drugs.

32:12 - The drugs were the result the death rates for the trier of fact determined

32:15 - the trier facts going to be posed with the question.

32:18 - Did

32:19 - the plaintiffs.

32:21 - Plaintiffs in this case

32:22 - to defend it's in the underlying case.

32:24 - Are they any lie is there any legal liability it's not merely the causation that

32:29 - we're taught this resulting from isn't merely

32:32 - the physical act that takes the person's

32:36 - life I get that he there was a drug overdose.

32:38 - I understand that the drugs certainly

32:41 - contributed to that but the claim against.

32:44 - My clients

32:45 - is that.

32:46 - They're negligent supervision also caused this loss had they not.

32:51 - Entrusted the house to their son

32:53 - and his friend had they not left for the evening had they not done these things

32:58 - this loss.

32:59 - May not have occurred

33:00 - so he occurrence.

33:02 - The occurrence.

33:03 - Is the is

33:05 - the person's death.

33:06 - That could I could I ask a foundational question that may actually be beside the

33:10 - point but

33:11 - what's

33:12 - emotional distress were emotional distress damages ever even played in the complaint.

33:18 - I would say not that those words not specifically no they weren't.

33:23 - There are no guarantees in speed

33:25 - I I agree that it's very of a

33:27 - survival action.

33:29 - And a

33:29 - depleted the survival action and a.

33:32 - Pleated the wrongful death action.

33:35 - Statutes.

33:36 - Period correct.

33:38 - And

33:39 - you know the superior court also

33:41 - held pursuant to its case law and emotional distress scam the case are available in a

33:47 - wrongful death action.

33:48 - It should have said that's an asset that's also an unsettled principle of plot but

33:52 - that's where you know another day.

33:55 - Or so I mean the damages

33:57 - your clients traditionally or you are.

34:00 - Not your clients the plaintiffs who sued your clients wouldn't be claiming.

34:04 - Would be lots of services.

34:07 - That's correct.

34:08 - And it did but the question I think.

34:10 - This gets back to where we are in terms of the scope or I'm sorry the standard of

34:15 - review here

34:15 - which is very important that I I don't they can be lost here.

34:20 - We have.

34:21 - A trial court judge

34:23 - and three superior court judges plus an on bonk denial the nation ride requested.

34:29 - There's a lot

34:30 - of judges of this commonwealth that have reviewed this issue

34:33 - and that issue the standard of review

34:35 - is it ambiguity

34:38 - if.

34:39 - This policy is ambiguous it is resolved

34:42 - in favor of the insured ambiguity is defined

34:45 - and this is what nationwide says they put it in their brief.

34:49 - Ambiguous is when.

34:51 - The policy language is reasonably subject

34:53 - to more than one reasonable interpretation so we have judges

34:57 - a judge from the con the court of common

35:01 - pleas and three judges from the superior court

35:01 - all who have determined.

35:03 - That there

35:04 - is a reasonable interpretation.

35:07 - Your honors do not need to agree.

35:10 - With what the superior court says you need to.

35:13 - Agree with what we said

35:14 - well that's

35:15 - that's not.

35:16 - Not really true I mean it's a straight legal issue here.

35:19 - I mean

35:20 - it if the argument was.

35:22 - Weak we can't reverse it if an en banc

35:25 - panel denied rehearing then.

35:27 - We'd be out of business

35:29 - no I'm not saying that I'm saying that because we have at least four judges already

35:33 - who have.

35:34 - Made a reasonable I think they're all reasonable and an interpretation that says this

35:38 - policy.

35:39 - Under the facts plaid in the complaint

35:41 - this policy provides.

35:43 - A duty nation one has a duty to defend under this policy.

35:46 - Whatever.

35:48 - However you construed the policy

35:50 - however you define the language however you constrict.

35:53 - The bottom line is that there are judges in this commonwealth who have said that

35:57 - there's a nationwide has a duty to defend and those are not unreasonable

36:01 - interpretations but that's not the question the question is

36:04 - was it legally right or legally wrong

36:07 - but.

36:07 - We're not we're not the way a jury verna secure.

36:10 - No I agree but I think.

36:11 - You're advancing the view for other judges to prove an ambiguity and stature in the

36:16 - construction of the contract language.

36:18 - That's all you're saying that's all.

36:20 - Correct you know we can disagree with that.

36:22 - You might we we all may have a difference of opinion about what this policy says but

36:27 - at least four judges said.

36:29 - They there's coverage under this there's a duty to defend at this stage not pay

36:32 - there's a duty to defend.

36:34 - And that's reasonable they've got the exclusion for drugs.

36:38 - And they've got the limitation of an occurrence to bodily injury.

36:42 - What what could the carrier have done.

36:45 - To make more clear that they wouldn't defend you in this kind of circumstance.

36:50 - How could they have written it differently.

36:52 - They would have had to write

36:54 - well if we're talking about the controlled substance exclusion

36:57 - they would have had to

36:59 - change that word resulting from

37:01 - the controlled substance include exclusion says

37:03 - that we don't cover bodily injury

37:05 - injury resulting from

37:07 - the use etc etc of a controlled substance.

37:11 - They would have to change that causation language from resulting from

37:15 - and change it to something that would say

37:16 - we don't cover anything at any time if there was a drug that even remotely touch this

37:22 - situation you're changing the language you're you're you're equating resulting from

37:26 - two causation.

37:28 - I think you I think you could have had

37:30 - a better argument if the policy said caused by.

37:33 - Cause causation there could be multiple causation

37:36 - but there's no question that the death here resulted from.

37:39 - An overdose

37:40 - why.

37:41 - There's just no question.

37:43 - I I think there is I think the result because resulting from

37:47 - it could be that it resulted from death but the plaintiffs in the underlying case

37:51 - there are argument

37:52 - is that this was.

37:54 - This deceased

37:55 - also.

37:56 - Passed.

37:58 - Because of

37:59 - my clients negligent interest alleged negligence entrustment and negligent

38:03 - supervision

38:04 - of the property.

38:06 - That's a cause that's a causation case that's kind of happy we played out but again I

38:09 - I

38:10 - just think resulting from his

38:11 - is different than causation

38:13 - I agree and and and I think that in just seeing the policy and the exclusions they

38:17 - use two different phrases in the exclusions they use

38:20 - arising out of

38:22 - and.

38:23 - Resulting from there's different causation and that that this is really gets to the

38:27 - heart of

38:28 - what we were arguing before the trial court and the superior core.

38:32 - Of.

38:33 - What does the resulting from the causation question

38:36 - and I think at this day what

38:38 - what

38:38 - should happen

38:39 - is.

38:40 - That nationwide should have a duty to defend ultimately the trial court will have a

38:45 - trial the trier of fact will determine

38:47 - whether the last what resulted from.

38:50 - Drug use negligent

38:51 - try just meant negligent supervision

38:53 - some other cause.

38:55 - And then there's a determination

38:57 - later

38:58 - whether they have to pay what what is the cause what is the result of the loss

39:02 - council let me see if I could.

39:04 - Put this in a hypothetical.

39:07 - Context.

39:08 - Sandy stand your argument let's

39:10 - take some facts.

39:12 - I.

39:13 - Hear ignore can in house.

39:15 - If the parents had been there

39:17 - it could have.

39:17 - Been

39:18 - scary to the defendant

39:20 - and he wouldn't be the heat and he wouldn't have died.

39:23 - Back for the fact that they left

39:26 - house.

39:26 - Totally in control of their sign as opposed to being near

39:30 - supervise.

39:32 - The the eye defeating.

39:34 - Guide

39:34 - is that what your argument is.

39:36 - But that could that's a potential argument a situation and

39:40 - I don't think we know but the point being

39:43 - there could be many.

39:44 - Results of our causes.

39:48 - Of

39:48 - the decedent's death.

39:51 - Was it because of that is it because of what my clients did or did not do is it

39:55 - because he ingested drugs is it because

39:57 - he was

39:58 - you know.

39:59 - Unfortunately he may have had

40:00 - drug problems for many years we don't know what the result

40:04 - of we don't know the final cause.

40:07 - We know the medical cause I get that we know the medical cause of death

40:11 - but the legal cause.

40:12 - That's the issue

40:13 - that's what can't be decided at this stage and that's why there's a duty to defend

40:18 - until we know and if the trial court

40:21 - determines.

40:22 - Or the trier of fact determines

40:24 - that.

40:25 - This death resulted solely from the use of drugs

40:28 - I would completely agree

40:30 - with this court.

40:31 - In

40:32 - is

40:32 - that there is no coverage under the policy.

40:35 - The problem is we don't know that and that's not the allegation against

40:39 - my clients because they.

40:41 - Have been sued for negligent entrustment and you're saying there

40:43 - could be more than one causes and that my legal costs correct.

40:47 - Medical costs different legal cause we're dealing with

40:50 - there could be multiple we don't know yet.

40:53 - Duty to defend until that happens

40:55 - okay I think we get it and take their questions from the justices.

40:59 - What what would you like US to do in this case let's assume that we disagree with the

41:03 - superior court's

41:05 - interpretation of a.

41:07 - Bodily injury and emotional distress as it plays into this claim

41:12 - and

41:12 - this insurance contract.

41:14 - What would you like to see.

41:16 - After that or so as if this court agrees that the superior court erred in it's.

41:22 - Opinion.

41:23 - That I think the appropriate result if well.

41:27 - Justice brought up another issue of can we just decide the controlled substance

41:31 - exclusion I'm not sure that this court is ready to do that we didn't brief that that

41:36 - potentially like Raymond.

41:38 - I think that's.

41:39 - It yeah it would be a remand for the superior court to address the direct issue that

41:44 - was initially presented to the superior court or on.

41:47 - The controlled substance issue which again I don't nationwide would say it was

41:51 - decided I certainly do not agree

41:53 - that there are one line

41:55 - in there decided the controlled substance of what we've been

41:58 - really arguing about the resulting from the causation.

42:01 - So that.

42:02 - That would be the appropriate.

42:05 - Remedy to remand to the spear court to have the superior court address them.

42:10 - Okay well argued by both thank you thank you.

42:13 - The next appeal the court will hear is commonwealth vs Harris number thirty one

42:18 - e a p twenty twenty two

42:20 - and arises from the criminal case in Philadelphia.

42:23 - It is somewhat unusual because the commonwealth or prosecution is the party that is

42:27 - appealing.

42:28 - In most criminal appeals it is the defendant who is appealing not the prosecution.

42:33 - The issue in this case involves the type of evidence that the prosecution must

42:37 - present at a preliminary hearing.

42:40 - A preliminary hearing occurs in many criminal cases after charges are filed

42:44 - in order to determine whether the case can go forward

42:47 - or whether the charges should be dismissed.

42:50 - At the hearing the prosecution must present sufficient evidence

42:53 - that the defendant committed the charged crimes

42:56 - to establish what is called a prima facie case.

42:59 - Prima facie it is a Latin term

43:01 - that simply means there's probable cause for charging the defendant with those

43:05 - particular crimes.

43:07 - In this case the prosecution relied on hearsay at the preliminary hearing

43:11 - to meet its burden of establishing a prima

43:16 - facie case that the defendant shot the victim.

43:16 - Heresy is evidence that is presented in court

43:20 - about what someone said

43:21 - out of court

43:22 - if it is offered to prove the truth of what the person said outside of court

43:26 - here

43:27 - at the preliminary hearing a police officer testified that after the shooting

43:32 - the victim told the officer that it was the defendant who shot him

43:35 - but the victim himself did not testify at the preliminary hearing.

43:39 - The trial court ruled that because the police officer's testimony was hearsay.

43:44 - The prosecution could not rely on it to establish a prima facie see a case that the

43:48 - defendant was the shooter.

43:50 - Because the

43:51 - prosecution presented no other evidence that the defendant was the shooter

43:55 - the trial court held that the prosecution did not establish a prima facie case

43:59 - and it dismissed all of the charges.

44:01 - The commonwealth appealed to the superior court the intermediate appellate court

44:05 - but the superior court agreed with the trial

44:09 - court in from the dismissal of the charges.

44:10 - The commonwealth then asked the supreme court of Pennsylvania to hear the appeal

44:14 - and the supreme court agreed to do so.

44:16 - The question it agreed to answer is whether the prosecution can establish a prima

44:21 - facie case

44:22 - that the defendant was the person

44:24 - responsible for an alleged crime.

44:26 - With hearsay evidence.

44:27 - The key commonwealth will argue first because it is the appellant.

44:31 - Then the lawyer for the defendant Ronald Harris will argue.

44:35 - The commonwealth contends that it should be permitted to rely in part.

44:39 - On hearsay evidence at a preliminary hearing hearing

44:42 - so long as it does not rely solely on hearsay evidence to meet its burden

44:46 - of establishing a prima facie a case

44:48 - that a crime occurred

44:50 - in the defendant was the one who committed it.

44:52 - Here

44:53 - the commonwealth argues that it relied on non hearsay evidence

44:57 - to establish that the crime occurred

44:59 - but hearsay evidence to establish that it

45:03 - was the defendant who committed those crimes.

45:04 - Mr Harris on the other hand argues that while the prosecution

45:07 - may rely on heresy at a plenary hearing

45:10 - to establish certain elements of the crimes

45:13 - it may not rely on hearsay to establish that it was the defendant who committed the

45:17 - crimes

45:18 - he notes that identification evidence is powerful

45:21 - and crucial to a prosecution

45:23 - but often unreliable

45:25 - as a result

45:26 - he argues that the prosecution cannot rely on hearsay evidence to establish a prima

45:31 - facie case

45:32 - that the defendant was the one who committed the crimes.

45:35 - Now let's hear the arguments.

45:37 - Good morning.

45:39 - In this discretionary appeal we are asked to determine the extent to which under rule

45:45 - criminal.

45:46 - Rule of criminal procedure

45:48 - five four two ie.

45:50 - The commonwealth is permitted to establish a

45:55 - prime official case at a preliminary hearing.

45:56 - Through hearsay evidence and in particular

45:59 - but or it may identified the defendant

46:02 - as the perpetrator of the alleged crime.

46:05 - By hearsay evidence alone.

46:08 - Thank you your honors.

46:10 - At.

46:10 - This case is not about the reliability of the content of the hearsay statement but

46:15 - merely the presence of the declarant

46:18 - in court.

46:20 - Had.

46:21 - This case been bound over for trial

46:23 - there's a discrete number of possibilities that could have occurred.

46:26 - Either the commonwealth was not able to locate

46:29 - the victim for trial

46:31 - in which case the case would be dismissed either because we would be required to

46:34 - withdraw the charges

46:36 - or defendant litigates a rule six hundred motion.

46:40 - Or we get the.

46:43 - Victim into court now if the victim refuses

46:48 - to answer any questions about this statement.

46:50 - In that case the statement could not be admitted and again we would not have

46:54 - sufficient evidence to.

46:56 - Get a conviction.

46:57 - Or the victim testifies and regardless of whether the victim stands by the statement.

47:03 - The statement would be admissible as substantive evidence of defendant's guilt.

47:08 - So either the and.

47:10 - Weighing that evidence would be a question for the fact finder a trial so either the

47:14 - victim.

47:15 - Comes and testifies as yes I made that statement it's all accurate

47:19 - the jury or judge as fact finder can

47:21 - you no

47:22 - way that but under Brady lively and pa rule of evidence eight or three point one.

47:27 - One b

47:28 - and if the victim testified inconsistently with with that statement.

47:33 - It would still come in in essentially the same manner having the officer who took the

47:37 - statement come up and testify say

47:39 - yes this is a.

47:40 - True and accurate.

47:42 - Summary of the statement I took from

47:44 - this victim so.

47:46 - Looking at.

47:47 - Those possibilities.

47:51 - The

47:52 - the.

47:54 - Defendant's constitutional

47:56 - rights to due process and under the confrontation clause.

47:59 - Are secured here we are just trying to get this past the preliminary hearing stage

48:04 - and.

48:05 - I will call back to rule six hundred

48:08 - there there's more than one

48:10 - protection that defendants have in these.

48:14 - Pre trial proceedings to.

48:17 - Prevent them from.

48:18 - Undue pretrial incarceration

48:21 - so.

48:23 - We get to the third preliminary hearing listing at which time.

48:27 - The victim still hasn't appeared for court

48:30 - we as the commonwealth conscious of our rules six hundred obligations

48:33 - then put up the officer to get the statement in

48:36 - relying on.

48:37 - The roof

48:38 - for five forty two

48:40 - and against so this wasn't plan a but we know do we have to move this along

48:44 - and there's plenty of normal case progression time.

48:47 - Most of that happens after the preliminary hearing

48:50 - so this really isn't trying to you know sneak.

48:55 - Some evidence by for trial we're in agreement that if this victim isn't there this

48:59 - evidence

49:00 - isn't coming in we just need to move these pre trial proceedings along one.

49:04 - With regard to due process and confrontation.

49:06 - Clause we think that mcclellan said the constitutional floor.

49:10 - As a matter of due process as relying exclusively and solely on hearsay.

49:15 - For the confrontation clause under.

49:18 - The

49:18 - US supreme court precedent and

49:20 - this court's precedent it's essentially a trial right

49:23 - and.

49:24 - As it stands in the commonwealth the the

49:27 - pa

49:28 - and

49:29 - confrontation clause doesn't offer.

49:32 - Any more protections than.

49:34 - The federal and.

49:36 - I don't think in this case that this is corporate venture to.

49:46 - Only.

49:50 - Your fate is admissible to establish each and every element out of women every year.

49:55 - That.

49:56 - Sorry that mcclellan said the constitutional floor at anything above

50:00 - exclusively and only hearsay so.

50:03 - For you

50:04 - yeah argument for me so far has been.

50:07 - Well we're not speaking anything and we just introduce

50:11 - hearsay.

50:12 - Because we couldn't bring a live witness

50:15 - to testify as to.

50:17 - The relevant credible evidence needed.

50:20 - Fw is that the position that you're asking this court

50:23 - to reconsider.

50:25 - That here fate alone is sufficient to establish.

50:29 - The premise Asia level and employment are here.

50:33 - With regard to I I I just want to be clear that here it was

50:37 - the hearsay evidence was.

50:38 - Only for the.

50:40 - I

50:41 - have ID

50:41 - so I'm answering questions in the affirmative but

50:44 - acknowledging that it can't just be

50:46 - all hearsay for every aspect of the case here it was

50:50 - hearsay for one very discrete aspect of the case

50:53 - which was the defendant's.

50:55 - ID as the perpetrator.

50:57 - I follow up on that

50:59 - yet.

51:01 - So.

51:03 - If I understand your response to justice dougherty.

51:07 - Would it be fair to say that.

51:10 - I

51:10 - assume there was

51:11 - a case where you had.

51:14 - Let's say that

51:15 - a person was charged with.

51:18 - Ten crimes and each of them had five elements.

51:21 - So that's fifty.

51:23 - Do.

51:24 - You.

51:26 - You could.

51:27 - Go with heresy for.

51:29 - Forty nine of them

51:30 - so long as one of them.

51:32 - I'm not being facetious I'm trying to say.

51:34 - How much is too much in other words and.

51:38 - So you're saying to be faithful to mcclelland.

51:41 - It suffices to bring in just one piece.

51:45 - Of non heresy

51:47 - is that

51:48 - somewhat arbitrary me giving you

51:50 - in your brief you say that the.

51:53 - The goal or a goal is to present.

51:56 - A reliable picture for the.

51:59 - The magistrate.

52:00 - Or the presiding.

52:01 - Judicial officer ray

52:03 - and I I guess I just don't know how those two things fit.

52:06 - How the.

52:08 - The apparently arbitrary presence of just one non hearsay element.

52:13 - Would suffice to comply with the spirit of what we were saying a mcclelland.

52:18 - And and and then.

52:19 - Does it suggest to you.

52:21 - That maybe.

52:23 - We should be looking at.

52:24 - Going back to the rule we had before I think it was two thousand and six.

52:30 - Lab reports.

52:32 - Property values and I.

52:34 - Might have been something else

52:35 - I mean in other words the.

52:36 - Bottom line

52:37 - is all of this so fuzzy.

52:39 - That we're just tripping over ourselves and we.

52:42 - The only way to draw a line here is to say.

52:47 - No heresy except for lab reports property values and

52:50 - whatever else we had in that old rule.

52:53 - I wasn't here when we changed the rule I'm not sure why we changed it.

52:57 - I.

52:59 - To

52:59 - to

53:00 - to reflate I

53:01 - know just because of the question that was presented in in mcclelland

53:05 - and.

53:06 - Again I think as far as it gets US is the you know that that.

53:11 - Hypothetical.

53:13 - You gave I

53:14 - I I think.

53:15 - The.

53:15 - Forty nine out of fifty scenario gave that would be be.

53:19 - Consistent with what was decided in mcclellan I will say for for this case

53:24 - fortunately we are dealing with a much more discrete issue of just.

53:27 - The

53:28 - ID coming in

53:29 - and.

53:32 - As as for questions about revisiting the rule I know as this court stated in the

53:36 - current release justice bears descent

53:38 - may have stated that would be a question for the rules

53:41 - committee for revising it but I would

53:43 - disagree with with

53:44 - going back to

53:46 - that previous version in those specific conditions that.

53:50 - Your honor just cited.

53:51 - And I

53:52 - do think.

53:54 - What amick has

53:54 - said here and said in in mcclellan are I.

53:59 - Would be good suggestions under that scenario which which are about the type not the

54:03 - the purpose but again I don't I don't think that's

54:06 - necessary for the outcome.

54:08 - If

54:08 - this carry specifically and then I'll stop.

54:11 - So

54:11 - the bottom line.

54:12 - The commonwealth suggesting to US.

54:15 - What test.

54:17 - For the magisterial district judge what.

54:20 - What is the actual standard.

54:22 - Cause we need to give them guidance here.

54:25 - What.

54:26 - What is compliant

54:27 - specifically because if

54:29 - if there is no specific standard

54:31 - then

54:32 - it's going to be all over the place.

54:34 - And I think your your own argument for

54:38 - reliability is going to go out the window then.

54:45 - Drawing a line below what is present in this case I.

54:50 - Agree would be

54:51 - difficult

54:52 - I think.

54:53 - It is.

54:56 - Sufficient to say that where

54:58 - do

54:59 - I mean defining the you know

55:01 - other end rather than the floor of it is more than.

55:04 - Sufficient

55:05 - to have where the the the sole.

55:08 - Condition

55:10 - that makes this evidence you know.

55:12 - Inadmissible at trial but it admissible at at a pre-law seminary hearing is is merely

55:18 - the presence of the declarant

55:20 - and not.

55:21 - Some other

55:22 - factor impacting the reliability of

55:25 - the content

55:27 - that.

55:27 - The declines mere.

55:30 - Absence.

55:32 - From a preliminary hearing to to prove the truth of the matter asserted in in the

55:36 - hearsay statement.

55:37 - Is

55:38 - does not offend notions of.

55:40 - Due process confrontation clause and

55:43 - I.

55:45 - Or you know mcclelland and would be consistent with rule five forty two

55:50 - as it currently stands.

55:52 - I I have I have a problem with this

55:55 - the.

55:55 - Superior courts.

55:57 - You know

55:58 - really important.

55:59 - Elements of a crime versus not important elements of a crime.

56:03 - That's something I'll continue to wrestle with.

56:06 - But looking at the mcclellan articulation it really struck me and going back and

56:12 - looking at for bonnets and the pluralities in those cases.

56:15 - That.

56:16 - At least what the courts prior to mcclellan

56:19 - sad and what a clown sort of echo the language of was.

56:22 - Because this is a preliminary hearing.

56:25 - Where or.

56:27 - Maybe some rights attached but but the rules of evidence aren't strictly applicable

56:32 - this

56:32 - court historically look to.

56:34 - Administrative law settings and in administrative law there's this thing called the

56:38 - Walker rule.

56:40 - Which basically allows hearsay to prove a fact.

56:44 - So long as the hearsay se has been given some

56:49 - reliability through corroborating evidence.

56:50 - And

56:51 - as I read for bonnets it seemed to me that that's where the pluralities were kind of

56:56 - latching onto

56:58 - and why why shouldn't we.

57:01 - And again I wasn't

57:03 - healing mcclellan decided so i'm trying to figure out what the court meant

57:06 - when they wrote mcloughlin

57:08 - and why isn't it

57:10 - mcallen just building on that principle and saying

57:12 - hearsay alone cannot be used to establish an element of a crime.

57:16 - Unless it's.

57:18 - It has to be corroborated so for example you have a hearsay statement.

57:22 - This person.

57:24 - Was the one that shot me.

57:26 - To the police officer

57:28 - and then you have a witness who saw that person maybe not shooting the person but

57:34 - running from the scene.

57:36 - Adds a little bit of reliability to the hearsay.

57:39 - We've allowed this type of.

57:41 - Corroborate here

57:43 - and administrative agency law for

57:44 - I dunno.

57:46 - Fifty sixty years

57:48 - and

57:48 - why isn't that something we can incorporate here.

57:54 - Because I I see in some ways how that idea can be.

57:58 - An

57:58 - enticing the issue here with the prima fascist standard is about credibility being a

58:03 - question solely for

58:05 - the

58:05 - the jury

58:06 - and.

58:08 - Shopping.

58:09 - At the

58:10 - at the preliminary hearing stage know but what what I'm saying that is what your

58:13 - honor just proposed would

58:15 - I'm not talking about trial I'm talking about at the preliminary hearing

58:19 - sorry that that that is what I'm trying to get it because.

58:22 - It is

58:22 - the the credibility of evidence is not a question at the preliminary hearing.

58:27 - And

58:28 - your your honours proposed rule would.

58:31 - Now.

58:34 - Make there need to be a fact finding credibility.

58:37 - Determination using this and

58:39 - I know it's it's it's not it's reliability so why don't we why don't we allow hearsay

58:44 - evidence right the rule against hearsay is this question a lot of credibility

58:47 - reliability and and

58:49 - and we'll we have in our rules

58:52 - things that are heresy but we allow the meme because they have certain

58:56 - credibility to them.

58:58 - That that it gets over that hump

59:00 - I'm saying that the Walker rule was developed which apparently the court seized upon

59:04 - when for bonnets was written.

59:05 - Has developed in the concept of administrative agency last settings were just like

59:10 - preliminary hearings evidentiary rules are relaxed your says exp Presley allowed

59:14 - to to take what does not fall within a hearsay exception.

59:19 - And

59:20 - and

59:20 - give it that extra level of credibility to allow it to get over that hump and be

59:25 - acceptable to form to just establish a finding of fact.

59:29 - Two things one

59:31 - I would say that the the recognition that these rules are

59:35 - relaxed it is.

59:38 - I understand that that reliability is useful for drawing that line under the rules of

59:42 - evidence saying.

59:44 - Certain types of heresy are either admissible at trial or they are not they draw a

59:48 - hard line based on.

59:50 - You know the the the policy underpinnings are about.

59:53 - Reliability

59:54 - 178 and here I'd say relaxing them obviously

01:00 - 00.538 contemplates going beyond what is allowed by them

01:00 - 04.648 and here we have a case where again the one the one condition.

01:00 - 07.288 That is just not met as the declarant presence.

01:00 - 08.648 Number two.

01:00 - 10.348 And so that you know.

01:00 - 14.848 Therefore focusing that being on the sole distinguishing piece of.

01:00 - 20.068 Rebel reliability that that would make it inadmissible at trial that that that is

01:00 - 21.808 still good enough for a preliminary hearing

01:00 - 23.248 the distinction

01:00 - 24.728 and.

01:00 - 28.768 Your Iran oppose between credibility and reliability is.

01:00 - 31.378 Not recognized by the law

01:00 - 33.148 last time I was before this court.

01:00 - 38.278 Guys igy the case but this this came up in in the context of whether an expert.

01:00 - 39.028 Can.

01:00 - 41.038 Testify as to.

01:00 - 45.088 Like matters of common knowledge and and how it would affect the acure.

01:00 - 46.828 A recollection of events.

01:00 - 51.028 So the whole argument was that reliability is different from credibility the view

01:00 - 52.258 that credibility means

01:00 - 55.558 truthfulness but you could have an inaccurate recollection

01:00 - 58.108 and that reliability meaning like whether.

01:00 - 00.688 That recollection was accurate.

01:01 - 03.688 Three cases from this court Crawford ses.

01:01 - 05.698 I believe Smith is the first.

01:01 - 10.648 Read together show that credibility assumes reliability both truthfulness and

01:01 - 15.088 accuracy which this court has held in all those cases are quite ultimate

01:01 - 17.308 questions for the fact finder at trial.

01:01 - 19.658 So to.

01:01 - 23.458 Tie it all together I would say the reliability of this out of court statement

01:01 - 27.148 is then a question for the fact finder at trial but again we'll note.

01:01 - 32.518 On the condition that we can get the declarant in to testify whether consistently or.

01:01 - 34.318 Or inconsistently so

01:01 - 35.008 counsel

01:01 - 36.328 and that's a big yeah

01:01 - 38.278 let me let me just ask you a question.

01:01 - 39.788 On.

01:01 - 40.708 Rule.

01:01 - 42.928 Five forty two d

01:01 - 43.618 on

01:01 - 44.308 palaces

01:01 - 46.138 that the magistrate.

01:01 - 51.598 Has to make a determination as to two aspects of a prime facie case.

01:01 - 57.418 That an offense has been committed I e the elements of the crime have been established

01:01 - 58.748 and two.

01:01 - 01.258 The defendant has committed it.

01:02 - 06.058 You had nothing but hearsay in order to establish.

01:02 - 07.738 That second point.

01:02 - 09.988 That's what I think your.

01:02 - 15.328 Largest problem is here and I'm harkening back to mcloughlin I mean it says when it

01:02 - 16.858 tests I mean and.

01:02 - 19.618 The problem is is that the role

01:02 - 20.548 vary

01:02 - 25.858 distinctly make that point that there are two things that have to be proven and you

01:02 - 28.828 had nothing but hearsay as to the second point

01:02 - 30.958 the identity of the defendant.

01:02 - 35.098 Which brings me back to your opening remarks because.

01:02 - 37.228 I think that from a.

01:02 - 40.708 Policy perspective you understand the problem.

01:02 - 46.648 With having nothing but hearsay to establish that this defendant committed this crime

01:02 - 50.068 I don't care how much evidence you have that there the offences were met

01:02 - 52.048 you need to establish who

01:02 - 52.678 did it.

01:02 - 53.698 And

01:02 - 56.338 you know of the four scenarios

01:02 - 58.198 that you described.

01:02 - 59.618 Only one of.

01:02 - 00.818 Which takes

01:03 - 03.808 the sun moon and stars to line up correctly.

01:03 - 08.668 Is going to get that statement into evidence as substantive evidence

01:03 - 10.048 and otherwise

01:03 - 14.338 you have a defendant too at the preliminary hearing stage has

01:03 - 19.258 seen no evidence direct evidence as to his identity

01:03 - 20.248 who will then

01:03 - 20.968 set.

01:03 - 21.658 In

01:03 - 22.838 jail.

01:03 - 25.738 Until nobody shows up at trial

01:03 - 30.928 and then the commonwealth case is over because all you have is hearsay evidence

01:03 - 34.618 which is exactly what you had at the preliminary hearing stage.

01:03 - 38.758 And so I have this concern I I agree with I agree with that.

01:03 - 44.578 Justice Robson that this no ocean of cobra corroborating evidence in the example he

01:03 - 47.038 used was precisely the one that I thought of.

01:03 - 50.098 You see someone you see him running from the scene

01:03 - 52.018 and then you have the statement.

01:03 - 52.798 I mean.

01:03 - 57.838 Then you have something that's cooperative and just one more thing and then maybe you

01:03 - 58.858 could help me with.

01:03 - 00.928 A subsection e

01:04 - 02.128 of of the rule.

01:04 - 04.588 Because

01:04 - 10.918 it actually says something akin to what the Walker Walker role would

01:04 - 12.538 require which is.

01:04 - 13.928 Heresy.

01:04 - 15.928 Shall be considered

01:04 - 17.228 okay.

01:04 - 21.658 The second part goes to the elements of the defense.

01:04 - 24.208 Is the elements of the crime prime which

01:04 - 26.248 which is where it talks about.

01:04 - 28.318 Heresy would be sufficient

01:04 - 29.338 to me

01:04 - 32.128 I see in subsection e.

01:04 - 35.668 A direct line between needing.

01:04 - 36.968 Something.

01:04 - 39.178 More than hearsay

01:04 - 41.458 to establish the identity.

01:04 - 44.878 The defendant.

01:04 - 46.438 I.

01:04 - 48.068 Try to get to.

01:04 - 49.358 Everything please.

01:04 - 52.678 Policy about somebody sitting in jail.

01:04 - 53.728 And

01:04 - 57.748 then has to be released because all you have at the end of the day is the same heresy

01:04 - 58.858 that you had at the.

01:04 - 00.668 Preliminary hearing

01:05 - 01.718 certainly.

01:05 - 02.278 Do.

01:05 - 04.228 First the park Shelby.

01:05 - 06.388 Keeping in mind the prima fascia standard.

01:05 - 09.781 Light most favorable to the commonwealth of viewing all.

01:05 - 13.348 Res bubble in France's credibility is not at issue so.

01:05 - 17.068 Evidence that must be considered must be viewed in the light most

01:05 - 18.388 favorable to the commonwealth.

01:05 - 23.278 Whatever the truth of the matter asserted in that evidence is therefore.

01:05 - 26.608 Under the sufficiency standard must be.

01:05 - 29.078 Credited so

01:05 - 30.988 looking at that first first line of a.

01:05 - 32.908 Heresy must be considered.

01:05 - 35.578 It doesn't say credited it says

01:05 - 36.358 considered.

01:05 - 37.215 Correct but

01:05 - 37.686 the.

01:05 - 39.151 This is.

01:05 - 42.388 About a proceeding where all evidence must be

01:05 - 48.208 credited to the extent it establishes art the second part of he goes specifically

01:05 - 50.368 late to the elements of the offense.

01:05 - 55.498 The second part of the work talks about when heresy is sufficient.

01:05 - 58.048 Has nothing to do with identity.

01:05 - 01.018 I mean specifically has nothing to do with identity.

01:06 - 04.708 So this court wrestled with the.

01:06 - 08.938 Meaning of the word any in mcclelland and I think for.

01:06 - 10.858 A different purpose here

01:06 - 11.428 the

01:06 - 12.638 and.

01:06 - 17.098 Looking at what I most well versed in is his sufficiency review

01:06 - 18.808 after there's been a conviction

01:06 - 20.218 where the standard is.

01:06 - 22.678 Evidence this is Sophia action

01:06 - 26.008 to sustain a conviction if it establishes every material

01:06 - 27.238 element of a crime

01:06 - 30.238 beyond a reasonable doubt and consistently.

01:06 - 35.668 Defendants have contested the sufficiency of the evidence to establish their identity

01:06 - 37.198 in this context it's.

01:06 - 38.908 Viewed as

01:06 - 40.138 an element of

01:06 - 40.678 any.

01:06 - 42.418 Offense is established

01:06 - 43.628 establishing someone's.

01:06 - 45.058 Have the rule is written

01:06 - 46.558 that's why that's why

01:06 - 47.518 I

01:06 - 52.288 am and now is the argument that you made in your brief repeatedly iPad identity is an

01:06 - 54.328 element of the offense except.

01:06 - 56.158 Subsection b

01:06 - 01.438 requires prime facie evidence on key things that an offense has been committed

01:07 - 03.838 that is he elements of crime and to.

01:07 - 05.968 The defendant has committed it.

01:07 - 08.188 There they're just distinct.

01:07 - 11.908 Requirements and are distinct finding that the.

01:07 - 14.668 Magistrate has to make based upon.

01:07 - 16.258 The evidence presented.

01:07 - 17.398 So I mean

01:07 - 19.858 identity is not an element of a crime.

01:07 - 23.578 I I you know I understand cases that you cite

01:07 - 26.578 put them aside from them because the general assembly.

01:07 - 28.948 To tell US what the elements have an

01:07 - 29.638 answer

01:07 - 32.218 but more importantly subsection d

01:07 - 33.238 makes a

01:07 - 38.248 stark distinction between the elements of the offense and the identity.

01:07 - 39.868 Of the defendant.

01:07 - 42.829 And that's what I'm struggling with.

01:07 - 46.478 I.

01:07 - 50.518 Understand what what your honor is pointing out within.

01:07 - 53.248 The the language between.

01:07 - 54.808 Subsection d.

01:07 - 56.548 And a

01:07 - 57.668 but.

01:07 - 59.138 That.

01:07 - 03.568 It's it's hard to put the the cases aside where identity is consistently reviewed

01:08 - 04.858 under the same standard that

01:08 - 06.128 is applied

01:08 - 07.388 and.

01:08 - 10.288 At the preliminary hearing about evidentiary sufficiency

01:08 - 11.098 and.

01:08 - 12.778 I just I

01:08 - 16.768 it it it it it is hard to get over that first sense of of e for me

01:08 - 19.378 looking at heresy shall be considered

01:08 - 21.688 and then if it must be considered.

01:08 - 23.258 That.

01:08 - 27.268 If the standard is viewing the evidence in the light most favorable to the

01:08 - 31.018 commonwealth if if the evidence being considered as evidence establishing ID

01:08 - 31.738 then.

01:08 - 32.398 It.

01:08 - 34.348 It should satisfy.

01:08 - 36.118 That aspect

01:08 - 37.298 given given.

01:08 - 40.408 What you've just told justice daughter you about.

01:08 - 42.758 Danny.

01:08 - 46.203 And

01:08 - 47.698 the need for a line

01:08 - 51.388 I mean the need for a standard for magisterial district judges around the

01:08 - 52.388 commonwealth.

01:08 - 54.248 Whoa.

01:08 - 56.998 Why wouldn't the best.

01:08 - 59.428 Oh my lover.

01:09 - 01.178 I'm sorry.

01:09 - 04.108 Trying to

01:09 - 06.898 articulate a standard that could actually be.

01:09 - 09.568 Applied with some consistency.

01:09 - 11.878 Wouldn't the better.

01:09 - 13.948 Construction of.

01:09 - 15.718 These rules.

01:09 - 17.798 Mean that.

01:09 - 18.478 It's the.

01:09 - 20.786 It's the elements at the end

01:09 - 22.348 he the property.

01:09 - 25.528 Damage to property value etc.

01:09 - 27.788 Proof of ownership.

01:09 - 34.048 The the not limited to perhaps the lab reports that were referenced in the old rule

01:09 - 35.698 and put this.

01:09 - 37.058 Identity and

01:09 - 38.217 and and.

01:09 - 40.018 The happening of the offense.

01:09 - 42.118 And the identity.

01:09 - 44.488 In the non years that category why

01:09 - 47.458 why would that be a standard that the commonwealth.

01:09 - 50.218 Couldn't live with and it wouldn't be.

01:09 - 52.708 A workable construction.

01:09 - 54.598 Of these rules.

01:09 - 58.258 I think I.

01:09 - 00.688 Will so that comes down to it.

01:10 - 05.698 Any raw or statute that has an enumerated

01:10 - 06.848 list.

01:10 - 07.378 I agree

01:10 - 09.628 presents as a workable standard

01:10 - 12.248 because of that but the language we're dealing with here is

01:10 - 14.518 including but not limited to which

01:10 - 17.518 is kind of similar to rule forty four bs

01:10 - 19.828 just such as language lists out you know.

01:10 - 22.978 Crimes other acts can be used establish x y and z.

01:10 - 26.488 Including identity which I won't say at least in.

01:10 - 27.818 It's dicta but

01:10 - 30.298 we cited a few cases in our brief where this court.

01:10 - 31.598 Has treated.

01:10 - 33.718 An identity as.

01:10 - 35.248 An element

01:10 - 36.398 and.

01:10 - 38.398 Have an offense

01:10 - 39.548 and.

01:10 - 42.208 Citing similar language there so while I agree that

01:10 - 45.298 while you're on a proposed to be a workable standard the.

01:10 - 47.228 Commonwealth.

01:10 - 50.228 Cannot live with it because I don't think it's supported by that.

01:10 - 52.738 Non-exhaustive language

01:10 - 54.388 at the end of subsection.

01:10 - 56.818 A including but not limited to.

01:10 - 02.246 The argument even stronger than that given the fact that the wording of sept

01:11 - 05.246 subsection ii says hearsay evidence

01:11 - 06.926 shall be sufficient

01:11 - 08.366 to establish.

01:11 - 09.756 Any.

01:11 - 11.306 Element of an offense

01:11 - 12.986 including but not limited to.

01:11 - 15.786 Correct yeah.

01:11 - 16.946 That's yes and then.

01:11 - 18.736 They probably could jump in here.

01:11 - 23.036 My understanding of the question pose.

01:11 - 24.726 Is significant

01:11 - 28.106 if you understand the historical application here.

01:11 - 30.956 This was initially a Philadelphia problem.

01:11 - 32.766 Historically.

01:11 - 36.416 Assistant district attorneys use Buchanan for bonnets.

01:11 - 38.066 At a plenary hearing.

01:11 - 39.566 That said you can

01:11 - 44.546 in introduce hearsay as long as there was other legally relevant incompetent evidence

01:11 - 45.636 introduced.

01:11 - 47.226 At that time

01:11 - 48.566 that's what was happening.

01:11 - 50.606 Then there was a period of time

01:11 - 55.106 when Philadelphia municipal court judges were discharging cases left and right and

01:11 - 58.886 there was a next possession in the Philadelphia daily news which resulted in the

01:11 - 59.886 supreme court.

01:12 - 01.506 Revisiting.

01:12 - 03.126 The rule.

01:12 - 07.016 At that time justices from Philadelphia in particular

01:12 - 07.976 decided

01:12 - 09.896 that historically

01:12 - 11.456 back in the day you used to

01:12 - 16.166 use commonwealth vs Ric and commonwealth vs branch to introduce these types of

01:12 - 17.166 evidence that being.

01:12 - 22.316 Seizure analysis and ballistic reports that expert reports of medical records.

01:12 - 24.866 And there was always the qualification

01:12 - 26.156 that you would.

01:12 - 30.806 Certify that the witness would appear at time of trial and the evidence was

01:12 - 32.006 introduced as hearsay.

01:12 - 36.086 The language injected in subsection ii

01:12 - 38.306 but not limited to.

01:12 - 40.556 Was a reflection of a conflict.

01:12 - 42.206 Between the justices

01:12 - 44.516 and as it was even plate

01:12 - 45.666 brought forth in

01:12 - 48.416 our deliberation and record resulting in an igy.

01:12 - 50.196 Mcclellan.

01:12 - 52.356 It's purpose

01:12 - 53.846 was to resurrect

01:12 - 56.666 Buchanan backslash for bonet to set

01:12 - 59.846 heresy alone at a pulmonary hearing is inadmissible

01:13 - 03.386 there must be other legally competent relevant evidence.

01:13 - 06.356 That's what that case established.

01:13 - 09.356 It may be criticised but that would establish.

01:13 - 11.936 Justice weapon is concur carrots.

01:13 - 16.706 Brought forth the issue that I find to be the issue today.

01:13 - 20.426 And the issue today is in your particular question.

01:13 - 22.466 Can identification.

01:13 - 24.626 Be introduced

01:13 - 25.746 through hearsay.

01:13 - 27.416 And the comment is

01:13 - 28.596 for this court.

01:13 - 29.706 It can

01:13 - 31.496 if we follow the belief that there's

01:13 - 34.496 other legally competent and relevant evidence

01:13 - 38.696 sufficient to prove that a crime was committed

01:13 - 39.782 and that the defendant committed the crime.

01:13 - 41.876 Am I on the same page here where mile

01:13 - 43.316 off the beaten track here.

01:13 - 45.476 Is that what you're asking US

01:13 - 48.956 to say hey identification can be proven by hearsay.

01:13 - 50.786 Provided we have other legally

01:13 - 52.286 relevant comp an average

01:13 - 55.226 pursuant to mcclellan which resurrected Buchanan.

01:13 - 57.416 I called the Buchanan as opposed to bourbon

01:13 - 58.976 as to identify as

01:13 - 00.081 identification.

01:14 - 00.836 So

01:14 - 01.526 but.

01:14 - 03.626 That's where I would draw.

01:14 - 04.856 Agreed with you

01:14 - 08.966 with how you phrase it up until that point with the.

01:14 - 09.896 Other then

01:14 - 11.816 identification again because I

01:14 - 15.566 I think that violates the the prima fascia case standard

01:14 - 18.986 if once we start introducing that now evidence needs

01:14 - 19.736 some

01:14 - 22.016 independent form of corroboration

01:14 - 23.576 this is this is change.

01:14 - 27.686 The the standard of progressing from a preliminary hearing that

01:14 - 32.006 trial by common sense in terms of what's fair to a defendant.

01:14 - 34.856 You can have all the evidence in the world

01:14 - 36.506 other than hearsay or

01:14 - 37.886 quoting hearsay.

01:14 - 39.836 That the crime was committed

01:14 - 43.256 but if you're the guy who was wrongly

01:14 - 44.436 arrested.

01:14 - 49.886 Shouldn't we have something more than just one piece of hearsay that you're the guy

01:14 - 51.626 that committed this horrible crime

01:14 - 53.246 it doesn't work really matter.

01:14 - 55.736 To him or her

01:14 - 57.405 how much evidence there is

01:14 - 03.056 for crime if there's no direct evidence that he or she was the perpetrator

01:15 - 03.713 that's why

01:15 - 08.066 that's where I'm missing your point and this is where again I think it's worth

01:15 - 09.176 highlighting the

01:15 - 10.016 the.

01:15 - 11.426 Condition

01:15 - 12.836 that is not meant.

01:15 - 19.256 Is this to clearance presence not something inherent about the reliability of the

01:15 - 20.366 content of the statement

01:15 - 21.206 so.

01:15 - 22.286 I actually

01:15 - 25.616 would like to get back to justice work in a workable standard

01:15 - 28.856 I think kind of what justice daugherty hinted at where.

01:15 - 31.766 Were the condition about it's.

01:15 - 33.386 In admit this ability.

01:15 - 34.796 Is.

01:15 - 36.186 Not.

01:15 - 39.546 A.

01:15 - 42.116 Couple of where there's potential in it

01:15 - 45.056 where a condition just needs to be met that.

01:15 - 48.806 Potentially can be met to make it admissible at trial.

01:15 - 50.936 Then that type of hearsay is fine why

01:15 - 52.346 because it sells I'm sure

01:15 - 54.566 I'm not sure it will justice daugherty said

01:15 - 56.066 I I think I.

01:15 - 59.966 You keep wanting to go through the admissible at trial thing which is just.

01:16 - 04.166 We're talking about the preliminary hearing we're talking about what is admissible at

01:16 - 07.766 a preliminary hearing or what is satisfactory to prove a prime official case.

01:16 - 08.816 And

01:16 - 13.736 I think all all look based on what i'm hearing from justice daugherty and the other

01:16 - 15.986 justices that were involved in mcclellan.

01:16 - 18.236 They seem to be saying that that.

01:16 - 19.616 It's the Walker role.

01:16 - 20.696 It's

01:16 - 21.296 it's

01:16 - 24.116 you could have hearsay evidence to establish.

01:16 - 29.756 One two three four or five elements of the crime as well as witness identification

01:16 - 32.876 and if that's all you have you're in trouble

01:16 - 37.496 but if you have hearsay evidence on all five including witness identification and

01:16 - 37.976 some

01:16 - 42.956 independent admissible corroborating evidence that gives it more level of reliability

01:16 - 44.786 you get past preliminary hearing

01:16 - 48.024 now it may be that that stuff may not be admissible at trial but

01:16 - 51.866 it's admissible for purposes of at least establishing your prime aphasia case.

01:16 - 56.906 And that's

01:16 - 57.416 just the

01:16 - 01.136 to use the phrase other legally competent evidence.

01:17 - 03.506 Hearsay plus other

01:17 - 05.246 legally competent evidence.

01:17 - 09.236 The evidence wouldn't substitute for the hearsay but it would

01:17 - 13.406 build it it would give it a foundation that would cabinet would give it some extra

01:17 - 14.786 level of reliability.

01:17 - 17.786 I.

01:17 - 18.426 I.

01:17 - 20.126 I still think.

01:17 - 24.926 Unless that is answering the question of whether it makes evidence.

01:17 - 28.376 Admissible under the rules of evidence

01:17 - 28.976 as

01:17 - 30.326 as constructed.

01:17 - 31.866 And.

01:17 - 35.516 I think that then contravenes

01:17 - 36.326 the

01:17 - 39.056 preliminary hearing standard of review.

01:17 - 40.416 Of.

01:17 - 40.976 It.

01:17 - 44.426 Corroboration not being at issue for.

01:17 - 47.006 Whatever evidence is being considered.

01:17 - 49.166 And I did not actress

01:17 - 51.026 how about if we use buttery.

01:17 - 53.786 Patrick forget forget that.

01:17 - 55.766 Let's get away from the

01:17 - 57.006 problem with.

01:17 - 59.036 Semantics as.

01:17 - 02.966 If you have evidence said battery says the heresy.

01:18 - 03.956 Then.

01:18 - 08.276 You've met you'll find me facie case if you don't which you down in this case and

01:18 - 12.446 I know what you're struggling with I mean and you you or knock any answer.

01:18 - 17.336 I guess this wax question why can't the commonwealth live with this because you still

01:18 - 19.406 have any aggregate reason that you

01:18 - 24.656 you could never certify to a magistrate that

01:18 - 25.862 this witness would actually show up at trial.

01:18 - 26.516 Know the

01:18 - 27.896 as ways the old.

01:18 - 32.426 No and I didn't mean to suggest justice duck was.

01:18 - 34.976 Adopting what what what I was about to say but the

01:18 - 36.716 whole certification would.

01:18 - 45.776 We can absolutely certify that the witness will appear

01:18 - 48.656 but we can certify that the case won't go to trial

01:18 - 50.126 if the witness doesn't appear

01:18 - 54.866 in any time in the meantime the defendant who has not been identified at the

01:18 - 56.876 preliminary hearing and anything other

01:18 - 57.996 than hearsay

01:18 - 59.046 isn't jail.

01:18 - 00.636 Which.

01:19 - 05.846 Will five forty two is in preliminary hearings are not the the only.

01:19 - 09.266 Protection or standard for.

01:19 - 14.936 Limiting a defendant's pretrial incarceration again and especially as it under the

01:19 - 15.936 facts of this case

01:19 - 18.476 are mindful of our rules six hundred obligation one's.

01:19 - 20.966 Rule six hundred is going to come into play

01:19 - 22.116 if we.

01:19 - 23.546 Sat there quite a while.

01:19 - 26.646 The one hundred and seventy nine games

01:19 - 27.816 or.

01:19 - 33.656 The desert stand your argument and I think to some extent were beating a dead horse

01:19 - 34.946 although I'm not sure what

01:19 - 36.066 killed the horse.

01:19 - 37.646 It's a little confusing

01:19 - 41.486 but we understand your argument are there any other

01:19 - 41.876 chief.

01:19 - 45.632 A procedural question if you could just educate me on the mess that the preliminary

01:19 - 50.156 hearing in this case was decided was was handled before mcallen came down right.

01:19 - 51.326 Yes

01:19 - 52.856 so what.

01:19 - 57.386 Is there any argument about the impact on mcclellan being applied here that the

01:19 - 58.226 commonwealth

01:19 - 00.866 the commonwealth is somehow.

01:20 - 02.816 Prejudice

01:20 - 07.466 and that that they that they presented the case under the under the prima cat clown

01:20 - 10.136 paradigm and and then got thrown out later on.

01:20 - 12.276 I.

01:20 - 16.076 In light of the way this discussion has gone I would say yes.

01:20 - 18.626 Because because had.

01:20 - 21.026 I mean had we known it's.

01:20 - 25.616 There are other things I would have you know like that exist in the record

01:20 - 29.156 that I would have liked for it for US to use in light of the fact that now this has

01:20 - 29.876 become an appeal.

01:20 - 33.656 That the statement something that could have gone in as an excited utterance

01:20 - 35.936 would have been when the victim immediately.

01:20 - 37.376 After being shot

01:20 - 38.526 officers arrives.

01:20 - 39.836 Describes.

01:20 - 42.446 Says he's got shot and described who shot him

01:20 - 43.796 but because we have

01:20 - 46.856 this statement we just went with the contents of that rather than

01:20 - 48.866 exploring that because this was.

01:20 - 49.496 a

01:20 - 50.736 pre mcclellan

01:20 - 51.816 and.

01:20 - 53.606 So.

01:20 - 57.386 That being the main aspect that this this part wouldn't have been

01:20 - 58.946 so so what should we do.

01:20 - 03.116 If that if if if that is your argument what

01:21 - 04.356 let's say we.

01:21 - 05.966 Disagree with.

01:21 - 09.686 We sort of agree disagree with the superior court if if.

01:21 - 11.426 If if your honours.

01:21 - 12.756 Do not overrule US.

01:21 - 14.528 It remained for trial then

01:21 - 15.188 then

01:21 - 16.808 then I would like for

01:21 - 17.738 US to remain

01:21 - 18.548 for.

01:21 - 20.058 To to.

01:21 - 22.208 Back to the refile hearing

01:21 - 23.648 so that we can.

01:21 - 24.638 Do.

01:21 - 28.838 In light of this court's holding present what additional evidence we have that we

01:21 - 29.978 didn't because we were

01:21 - 31.508 relying on.

01:21 - 32.708 And.

01:21 - 35.558 A rule that we thought allowed this one

01:21 - 37.538 piece of heresy for this one.

01:21 - 40.358 Well evidence but you chose not to personally.

01:21 - 42.008 Know what I'm saying

01:21 - 44.618 is we didn't have the opportunity to explore whether

01:21 - 48.968 again corroboration is not at issue so we are not putting forth a full trial we are

01:21 - 49.568 getting in.

01:21 - 53.408 Who did it what are the elements and we're trying to get past that preliminary

01:21 - 56.318 hearing at the third listing trying to get it towards trial we're

01:21 - 57.438 also mindful

01:21 - 00.038 of this defendant pretrial incarceration we also

01:22 - 03.428 have to make sure we don't get a case dismissed not because the evidence but because

01:22 - 04.428 of rule six hundred

01:22 - 05.778 and.

01:22 - 06.458 The.

01:22 - 09.578 There there is more than just this one this one aspect.

01:22 - 12.068 That is protecting the defendants.

01:22 - 13.448 You know

01:22 - 14.648 pretrial rights.

01:22 - 17.138 Go ahead an apartment you

01:22 - 17.765 if

01:22 - 18.888 you're sick getting.

01:22 - 21.548 Didn't cut it for identity.

01:22 - 22.938 Then.

01:22 - 23.348 But.

01:22 - 25.598 Rather as to these other items.

01:22 - 27.878 Then perhaps.

01:22 - 30.248 If that were the standard going forward.

01:22 - 33.228 The commonwealth.

01:22 - 34.698 Might.

01:22 - 35.898 Aptly.

01:22 - 39.788 Find ways of establishing that something's either non hearsay

01:22 - 42.278 or covered by an exception to the hearsay rule.

01:22 - 45.548 As you suggested with excited utterance for example.

01:22 - 47.118 So.

01:22 - 48.698 The point of my question is to.

01:22 - 51.458 I suggest that perhaps.

01:22 - 55.958 It would not be the end of the world perhaps if.

01:22 - 58.958 If that was where the line was drawn.

01:22 - 00.518 In some clear way.

01:23 - 02.478 Do you want to re.

01:23 - 03.618 React.

01:23 - 04.208 In any way.

01:23 - 07.868 I'm sorry can you can you though in other words if the line were drawn.

01:23 - 11.768 To say the elements of the crime and identity

01:23 - 13.418 have to be established by.

01:23 - 15.048 Non heresy.

01:23 - 15.968 Are

01:23 - 17.208 sorry they.

01:23 - 20.798 The prima facie case and identity can't be established by.

01:23 - 25.358 Hearsay but these other things lab reports property value.

01:23 - 28.358 Grading element type stuff etc.

01:23 - 30.638 Can be established by hearsay

01:23 - 31.478 and.

01:23 - 34.928 Then if that were the the standard and it was known.

01:23 - 36.318 Then.

01:23 - 38.498 Presumably the commonwealth might

01:23 - 41.798 be able to establish like you mentioned the excited utterance.

01:23 - 44.348 That might have come in on this case or

01:23 - 48.248 some other exception or perhaps something could be sure to be non heresy.

01:23 - 48.998 I.

01:23 - 50.418 Yes.

01:23 - 52.028 I.

01:23 - 57.608 I I if if there were discrete set of circumstances

01:23 - 57.818 of course we can you just you didn't.

01:23 - 00.948 You didn't have the opportunity to do that because you were operating a

01:24 - 02.708 premier clown world and

01:24 - 06.098 and you know you probably would have made a whole bunch of different arguments at the

01:24 - 09.218 preliminary hearing about excited utterance and things like that but you did.

01:24 - 10.788 Absolutely.

01:24 - 14.618 Alright I think we get it does anyone have any other questions.

01:24 - 16.458 Thank you you're.

01:24 - 17.688 Alright thank you

01:24 - 18.948 attorney month.

01:24 - 33.408 Good morning.

01:24 - 37.088 May it please the court my name is Catherine mans and I represent battled Harris

01:24 - 39.638 could you pull the microphone a little closer

01:24 - 43.718 of course I I know you're all aware that I'm using the hearing assist device.

01:24 - 45.759 Very loud to myself.

01:24 - 49.118 You may have to tell me to speak up sometime.

01:24 - 50.853 Closer to

01:24 - 55.107 okay so I may have to let you all know to put the microphone closer as well I know

01:24 - 55.598 I've had to.

01:24 - 57.968 Change the volume a few times already

01:24 - 00.038 and we're pretty loud.

01:25 - 05.738 Just be allowed into your microphone that I left one hearing aid and because

01:25 - 09.668 inevitably sometimes I have to rely on that side and if you have a problem you just

01:25 - 10.298 let US now.

01:25 - 13.958 Trust me I've got a whole lifetime's worth of Italian people to speak up so thank you

01:25 - 14.958 for that.

01:25 - 16.698 And.

01:25 - 17.898 As you are to.

01:25 - 23.408 Discuss the only real issue before this court is whether we'll five forty two permits

01:25 - 24.998 the identification of the defendant

01:25 - 27.098 to be established by hearsay alone

01:25 - 28.428 and it does not.

01:25 - 33.788 So the preliminary hearing is a critical stage in the criminal process.

01:25 - 36.038 It's supposed to be more than a mere formality

01:25 - 38.348 and I was really struck by something

01:25 - 39.818 they commonwealth said

01:25 - 41.078 in argument which is

01:25 - 43.878 we're just trying to get this passed a preliminary hearing stage.

01:25 - 47.258 And that seems to tweet all of these issues.

01:25 - 48.558 Very lightly

01:25 - 52.148 but as you noted my client spent a lot of time in jail

01:25 - 53.618 for when the commonwealth is

01:25 - 55.249 just trying to move the case along.

01:25 - 56.378 And so.

01:25 - 59.798 When I look at all of the arguments that the commonwealth has making.

01:26 - 02.618 That being the point where they started.

01:26 - 07.028 And the fact that they are trying to get in as little evidence as possible and that's.

01:26 - 09.158 Really where they were seeking to go here.

01:26 - 13.148 If you go back to what the preliminary hearing is for

01:26 - 14.448 that doesn't cut it.

01:26 - 18.878 Now the work that this court has already done in commonwealth was just mcclelland to

01:26 - 20.978 interpret ufo five forty two.

01:26 - 23.498 Along with the rules of statutory construction.

01:26 - 26.498 Really do support the notion that.

01:26 - 29.138 Identification is separate from elements

01:26 - 31.928 and it is a separate burden that they carry under the wool

01:26 - 33.188 I kind of.

01:26 - 37.838 Disagreement with I think the rest of the bench here because I think mcclellan is on

01:26 - 39.338 point in this case because.

01:26 - 42.428 To my understanding the koran made no.

01:26 - 47.948 Distinction about the element of identity as with any of the elements of the crime

01:26 - 49.928 and it said holding hearsay evidence

01:26 - 52.388 alone is insufficient to establish

01:26 - 54.818 a prime facie case in a plenary hearing

01:26 - 59.948 so that you had any substantive element on any portion of the elements of the crime

01:27 - 03.533 whether it was identity or some other portion of the

01:27 - 04.238 crime

01:27 - 07.268 it was sufficient at the plenary hearing stage.

01:27 - 10.958 So everybody now has like kind of law latched on to the

01:27 - 12.186 concurrence

01:27 - 13.608 but.

01:27 - 19.688 The majority opinion is what the focus is on the holding for the mcclellan case.

01:27 - 23.198 Wait so actually if you take a look at.

01:27 - 28.238 It in context with d I think that gives you a really good we use exactly.

01:27 - 29.928 What you read.

01:27 - 31.238 It says

01:27 - 32.828 any evidence

01:27 - 35.378 hearsay is sufficient for any.

01:27 - 36.858 Portion.

01:27 - 37.418 Here

01:27 - 39.488 and when you read it in context with

01:27 - 41.048 subsection d

01:27 - 43.568 which gives two separate but it doesn't say

01:27 - 45.458 nd is contingent on.

01:27 - 47.378 It says the

01:27 - 48.368 and then it says

01:27 - 48.878 he

01:27 - 53.528 and I don't mind if you want to change the rule we can change the rule if you get the

01:27 - 54.548 majority of the court

01:27 - 58.208 but I think it's unfair to then read into the rural

01:27 - 59.918 some profess

01:28 - 02.888 that's not in the language of the rule.

01:28 - 04.218 That's just me.

01:28 - 05.928 Well.

01:28 - 09.848 Because subsection d and subsection ii were written at the same time

01:28 - 10.778 and

01:28 - 12.578 as the comment states

01:28 - 13.538 that it is all

01:28 - 18.128 subsection ii is about establishing elements of the offense and that all goes to.

01:28 - 21.458 The first part of the burden and that the commonwealth must carry

01:28 - 24.548 not the second part of the book but that doesn't say so it says

01:28 - 26.078 here say evidence

01:28 - 27.818 shall be sufficient

01:28 - 29.108 to establish

01:28 - 29.828 any

01:28 - 30.398 element

01:28 - 31.578 of an offense

01:28 - 34.058 now if it didn't want to use hearsay

01:28 - 35.648 for the identity

01:28 - 37.118 element of the offense

01:28 - 38.358 he could have said so

01:28 - 39.588 but it doesn't.

01:28 - 41.678 I don't think it's fair

01:28 - 43.508 for the commonwealth to operate

01:28 - 45.038 under a case though

01:28 - 46.508 you should from this court.

01:28 - 48.038 As well as a rule.

01:28 - 50.618 Provided by this court.

01:28 - 53.528 But now you want to change that

01:28 - 56.348 to add this identity element as being.

01:28 - 58.988 Treated differently than the other elements of the crime.

01:29 - 04.058 It be an argument that identification has always been treated differently than the

01:29 - 05.678 rest of the elements of the offense.

01:29 - 09.098 In particular in the preliminary hearing context

01:29 - 14.168 and where this dual burden has been for decades the case law and it was actually

01:29 - 15.398 written into the wool

01:29 - 18.038 and so identification becomes

01:29 - 21.728 not an element but a separate burden that the commonwealth carries they must meet a

01:29 - 23.258 prima facie case on each.

01:29 - 24.308 Of the

01:29 - 25.538 elements of the offense

01:29 - 27.668 and the fact that the defendant committed it

01:29 - 28.478 in fact.

01:29 - 31.838 In commonwealth versus Perez which came out just a few years ago.

01:29 - 33.168 There's a really it's.

01:29 - 33.646 A.

01:29 - 37.628 Really interesting segue from talking about the elements of the offense to.

01:29 - 39.728 Now let's talk about whether this

01:29 - 40.298 is the.

01:29 - 40.838 With

01:29 - 43.839 a prima facie case that this is the person who committed that offense.

01:29 - 46.478 And so in that way.

01:29 - 49.418 I agree that elementary separate

01:29 - 52.808 identification that it's not all one and the same and so.

01:29 - 55.328 Mcclellan can be wed to address.

01:29 - 57.098 One part of the burden

01:29 - 58.928 and the elements of the offense

01:29 - 02.768 but not the identification I I would say this is just a new issue and not.

01:30 - 05.468 What are you doing the old issue.

01:30 - 08.348 I I am not sure

01:30 - 09.550 I.

01:30 - 13.448 Again I'm trying to understand this idea that even.

01:30 - 19.268 Element three is somehow as a matter of law at the preliminary hearing stage less

01:30 - 23.693 important than identifying who the person is that the commonwealth has to produce

01:30 - 24.708 pond the facia.

01:30 - 27.428 Evidence of every element of the crime.

01:30 - 28.958 Which

01:30 - 34.328 under one articulation includes the identification of the defendant as the

01:30 - 35.508 pair if a traitor.

01:30 - 39.128 Under another articulation is separate but still has to be proven.

01:30 - 43.988 The articulation from the superior court I just think is incredibly unworkable

01:30 - 49.028 in the idea that while there are sort of elements of the climate really aren't that

01:30 - 53.078 important and will accept hearsay on but there's other elements that

01:30 - 54.288 we won't.

01:30 - 54.848 Accept

01:30 - 56.678 heresy on and if you just

01:30 - 58.778 if there's like five elements in you

01:30 - 02.798 have one little piece of good invalid and not hearsay evidence on this element you

01:31 - 04.388 can use your save for the rest of them.

01:31 - 07.298 That just seems to beat me to be

01:31 - 08.478 loosey goosey.

01:31 - 10.518 You know.

01:31 - 14.228 It's just a really tough thing to define right I mean I think we're all here for

01:31 - 17.258 partly that reason and the reason that this keeps coming up

01:31 - 17.740 is

01:31 - 18.858 kind of hard to define

01:31 - 20.028 so you know on.

01:31 - 23.708 Wall seems pretty straightforward it says he

01:31 - 27.308 doesn't mention any other evidence as hearsay evidence and I think justice Monday's

01:31 - 28.308 point is is good.

01:31 - 30.084 The the.

01:31 - 34.676 There may be tension between the way the word rule is written.

01:31 - 36.366 And.

01:31 - 37.626 An mcloughlin.

01:31 - 40.196 There may be tension there

01:31 - 41.646 but.

01:31 - 46.016 I'm kind of thinking about this Walker role paradigm because I think

01:31 - 50.683 you are I don't know if there is a will or even a request at the court so recently

01:31 - 51.696 get rid of mcloughlin

01:31 - 53.996 and and say that it just needs to be

01:31 - 55.116 redone.

01:31 - 59.516 But doesn't a walkable this idea of corroborated heresy

01:31 - 04.496 and heresy alone you can't use hearsay alone means you can use hearsay but there has

01:32 - 06.506 to be some bolster at both buttressing.

01:32 - 07.676 Buttressing

01:32 - 09.746 this has to be some buttressing thing.

01:32 - 16.436 If if we say that's what the court meant in mcclellan the raw can sort of survive.

01:32 - 20.372 But you have to acknowledge don't you that there or is some tension between the

01:32 - 23.006 the rule which seems to allow hearsay no matter what.

01:32 - 24.896 And mcclellan.

01:32 - 31.856 I would disagree that there is a real tension there because if subsection he is wed

01:32 - 34.586 to go to the first half of the commonwealth's burden.

01:32 - 37.616 Then it does not address heresy

01:32 - 41.906 for the establishing the identity identity of the person who committed the offense

01:32 - 42.776 and doesn't

01:32 - 47.396 justice daugherty his opinion in commonwealth

01:32 - 47.876 versus Perez rear only answer that really

01:32 - 49.196 clarify that.

01:32 - 51.596 Yeah absolutely it talks about.

01:32 - 53.936 It's all about whether this

01:32 - 57.626 the evidence is sufficient to establish a prima facie case of whether this is the

01:32 - 58.766 person who stabbed the guy

01:32 - 00.536 and that says specifically

01:33 - 03.326 the elements of motor have been met.

01:33 - 07.886 Now let's talk about whether there is evidence that this is the person who

01:33 - 09.066 stabbed him.

01:33 - 09.536 And so he

01:33 - 12.806 tweeted it separates the burden again it reminds US that

01:33 - 14.876 identification is not an element.

01:33 - 16.736 In the legal sense of the word

01:33 - 17.336 and I

01:33 - 19.556 don't believe that McLuhan is

01:33 - 20.736 in.

01:33 - 24.056 Tension with our position here which is that.

01:33 - 26.006 Mcclellan addresses the first

01:33 - 27.156 part of the burden

01:33 - 28.016 and it.

01:33 - 29.966 Holds that some heresy

01:33 - 32.126 comes in for that part of the burden because

01:33 - 36.476 subsection he should be read only to go to that part of the burden so are you saying

01:33 - 38.636 that you you cannot ever.

01:33 - 41.006 Use hearsay evidence to support.

01:33 - 43.256 The identification of the perpetrator.

01:33 - 46.736 Was saying that hearsay evidence must be established

01:33 - 48.806 by legally competent evidence.

01:33 - 51.026 Mattress buttressed

01:33 - 52.326 by.

01:33 - 57.686 We would argue that it is so that you can with buttress because we seem to be working

01:33 - 59.096 up a majority on that.

01:33 - 00.516 A try.

01:34 - 03.426 And.

01:34 - 07.316 That it has to be made out by non hearsay evidence now if

01:34 - 08.558 and frankly.

01:34 - 09.176 Well those are.

01:34 - 10.656 Two different things.

01:34 - 13.826 You said it has to be made out by non hearsay evidence.

01:34 - 16.436 Were I my question to you was.

01:34 - 20.246 Can you use hearsay evidence so long as it's

01:34 - 21.296 buttressed

01:34 - 21.647 I.

01:34 - 22.965 Do.

01:34 - 23.936 Well

01:34 - 27.326 I'm just trying to understand this to this double paradigm in the role and I'll

01:34 - 28.646 accept it for purposes of.

01:34 - 31.106 Of your your response that.

01:34 - 32.606 Elements

01:34 - 34.526 are different from identification.

01:34 - 36.836 Under the rule as you understand it.

01:34 - 40.286 Can you use hearsay to establish the elements.

01:34 - 47.336 Under the wool as read by mcclellan some hearsay is allowed to establish some of the

01:34 - 47.696 elements

01:34 - 52.736 in and you are adopting the superior court's view that if I have heresy for three

01:34 - 56.906 elements but I have direct evidence for a fourth I've made out my prime aphasia case.

01:34 - 58.316 I don't

01:34 - 01.376 necessarily read it that way I think what the

01:35 - 04.586 superior court is trying to do is something along the lines of

01:35 - 05.906 vonage uses the term

01:35 - 07.616 material elements

01:35 - 10.556 the superior court uses the term core elements

01:35 - 14.876 and I think it kind of goes with this list

01:35 - 15.386 that did this at the end of subsection e which.

01:35 - 16.776 Talks about.

01:35 - 21.806 Value value might value damage

01:35 - 23.246 non committed to silent.

01:35 - 25.766 Right and those are the kinds of things that non.

01:35 - 28.196 Factor witnesses so to speak

01:35 - 32.336 establish these are not the person who can describe the acts taken by the defendant

01:35 - 37.586 and not personally identify the defendant but sort of the stuff that is established.

01:35 - 39.716 It's powerful in a way

01:35 - 42.076 so it's not core elements is a hard is

01:35 - 43.946 it is hard way to work it

01:35 - 44.606 but I think

01:35 - 48.326 that language that judge pellegrini used.

01:35 - 49.676 Has.

01:35 - 53.876 Never been used by US I mean that's kind of out of the whole plot

01:35 - 55.056 but come up.

01:35 - 58.652 Her answer really thought that was a comment and I apologize I guess that was a

01:35 - 59.676 question.

01:36 - 01.706 You're right core elements

01:36 - 05.816 and I read it in sort of the same way that I read material elements.

01:36 - 10.556 But you're right it is not it is sort of a new formulation but I read it being sort

01:36 - 11.556 of akin to

01:36 - 13.496 the material elements which we will see and.

01:36 - 15.236 Share with US.

01:36 - 20.036 Historically ownership not permission affidavits

01:36 - 21.476 have been accepted.

01:36 - 24.296 In our courthouses as.

01:36 - 25.626 Heresy.

01:36 - 27.366 Now.

01:36 - 29.006 Are you is it

01:36 - 33.236 the position that that's not a core or material.

01:36 - 36.626 Piece of evidence because without ownership non permission.

01:36 - 38.076 There is no crime.

01:36 - 44.936 And that's that's why it gets harder to define it as core or as material because when

01:36 - 48.746 you get right down to it they're all require and the question becomes one of that I

01:36 - 50.906 find somewhat confusing is it your position

01:36 - 54.326 that identification is not a core worm.

01:36 - 55.866 Important issue.

01:36 - 57.416 Oh no our our

01:36 - 02.486 our position is that identification it is so important it's it's own category

01:37 - 07.406 that must be established by legally competent

01:37 - 07.616 evidence so I guess the question I have is

01:37 - 12.836 historically this has always been left to the discretion of the trial judge or the

01:37 - 13.946 pulmonary hearing judge

01:37 - 17.456 to decide what is the sufficient amount of hearsay

01:37 - 18.446 along with

01:37 - 22.706 other relative incompetent evidence that I would have to take some challenge with my

01:37 - 23.186 colleagues

01:37 - 26.216 to save rebuttable is not in our case law so good

01:37 - 28.646 if we're going to follow our precedent it's.

01:37 - 32.156 Other legally competent and relevant evidence.

01:37 - 34.166 Doesn't have to rebut it

01:37 - 35.606 just has to be part of it.

01:37 - 38.846 So or buttress

01:37 - 42.926 it just has to be part of it that being said I'm assuming trying to inquire.

01:37 - 44.876 As to.

01:37 - 49.406 Where are you where what is your position

01:37 - 51.146 that as long as there's.

01:37 - 53.126 Legally competent

01:37 - 54.246 evidence.

01:37 - 57.596 Any element may be introduced through hearsay.

01:37 - 01.856 And then we leave it to the trier of fact determine whether a prima facie case has

01:38 - 02.276 been made

01:38 - 04.496 or are we putting the confines

01:38 - 05.796 like justice wecht.

01:38 - 06.896 Kind of is

01:38 - 08.246 it requested

01:38 - 09.506 in his concurrence

01:38 - 10.226 that we.

01:38 - 12.956 Make it strictly with regard to.

01:38 - 13.976 Those.

01:38 - 17.786 The value in a retail theft case or or or.

01:38 - 20.366 The medical records after there's been

01:38 - 22.166 from testimony as to.

01:38 - 27.086 Injury but we need to prove whether or serious bodily injury or just bodily injury.

01:38 - 30.476 I'm trying to find the framework I thought this case

01:38 - 33.386 was an extension of mcclellan

01:38 - 35.516 for off that put the parameters

01:38 - 36.866 on the type of

01:38 - 37.796 hearsay

01:38 - 40.076 that is admissible at Plymouth marry here.

01:38 - 43.406 So I

01:38 - 44.606 am confused because we

01:38 - 46.286 seem to be going across the board

01:38 - 47.546 McLaughlin is it.

01:38 - 48.966 In the sense that.

01:38 - 50.426 All we claimed

01:38 - 53.486 the majority is that legally relevant competent evidence.

01:38 - 57.326 Appropriate prima facie case cannot be handled by

01:38 - 58.796 hearsay alone that's it.

01:38 - 01.046 Now it's the additional step.

01:39 - 02.786 Yeah so

01:39 - 04.376 being very myopic

01:39 - 05.576 what is your position

01:39 - 07.616 our position is that

01:39 - 12.986 the only that there is a very limited issue relating to whether identification can be

01:39 - 13.986 established.

01:39 - 15.186 By hearsay.

01:39 - 19.196 And so our position is that because this case is about

01:39 - 24.086 whether the identification can be established hearsay because that was the main piece

01:39 - 27.476 there was no legally competent evidence to establish in this case.

01:39 - 30.626 It's what was waged at the original motion is what was decided.

01:39 - 32.485 As far as it goes that that

01:39 - 33.926 that our issue is.

01:39 - 38.636 That portion of the commonwealth's burden cannot be met by legal competent folk in

01:39 - 39.476 this case

01:39 - 43.436 it was an officer testifying as to a video.

01:39 - 45.026 Of an interview

01:39 - 46.676 that he perceived correct.

01:39 - 47.874 I know.

01:39 - 48.386 That

01:39 - 52.586 it might thinking of another scenario in this in this case there was a responding

01:39 - 53.586 officer who.

01:39 - 55.826 Sees the complainant injured

01:39 - 59.426 he takes him to the hospital and then there's

01:39 - 00.452 a detective who dies a couple of interviews

01:40 - 01.316 and says

01:40 - 03.236 he developed suspects

01:40 - 04.356 and then.

01:40 - 05.666 Right

01:40 - 07.586 and then he circles that photograph

01:40 - 09.326 could I follow up on that account.

01:40 - 10.862 Could you speak a little bit

01:40 - 11.246 oh yeah.

01:40 - 13.287 Sorry is that loud enough yes yes

01:40 - 13.796 ma'am.

01:40 - 16.166 Just to follow up on that question.

01:40 - 17.066 Of.

01:40 - 19.406 Something similar to what I asked

01:40 - 20.706 your colleague here.

01:40 - 22.296 Up.

01:40 - 27.096 To the extent.

01:40 - 28.736 It's worthwhile

01:40 - 30.506 for this court to.

01:40 - 32.036 Draw a.

01:40 - 36.326 Set forth a standard.

01:40 - 38.456 That would be helpful.

01:40 - 41.156 For magisterial district judges.

01:40 - 43.466 Across the commonwealth the

01:40 - 44.706 majority of whom.

01:40 - 48.686 Are outside of Philly or or non non lawyers up.

01:40 - 50.195 Up.

01:40 - 53.546 Wouldn't

01:40 - 54.026 it

01:40 - 54.686 be.

01:40 - 56.076 Useful.

01:40 - 57.086 To

01:40 - 58.316 say that.

01:41 - 03.236 Taking five forty two d and e together.

01:41 - 04.716 That the.

01:41 - 07.166 The two things in d.

01:41 - 09.026 Cannot be.

01:41 - 12.446 Established at the preliminary hearing.

01:41 - 17.156 With heresy and these other elements.

01:41 - 19.256 At the bottom of e.

01:41 - 20.946 On.

01:41 - 23.036 As well as lab reports.

01:41 - 25.396 And the like whatever was in the old rule.

01:41 - 26.766 Those can be

01:41 - 27.266 in other words

01:41 - 28.976 I'm asking you if you could

01:41 - 29.726 give US

01:41 - 30.966 your view.

01:41 - 36.116 On whether there is a standard a line that this court could and should.

01:41 - 37.776 Give.

01:41 - 40.526 To these magistrates around the commonwealth.

01:41 - 42.488 Without it.

01:41 - 44.998 Isn't it the case that we're just going to have.

01:41 - 46.918 Vastly disparate.

01:41 - 48.998 Outcomes.

01:41 - 50.218 Depending on

01:41 - 51.898 who's sitting that day.

01:41 - 54.838 Yes so there's.

01:41 - 57.988 Two burns in which there are lines to be drawn

01:41 - 00.388 and our first and strongest argument is

01:42 - 03.388 the line should be very clear on the identification part of it.

01:42 - 07.318 The I that that line should be drawn very clear that it cannot be established by

01:42 - 08.408 hearsay alone

01:42 - 10.288 and as for the second burden I think.

01:42 - 12.928 If you look at subsection e.

01:42 - 13.948 Now

01:42 - 16.588 the commonwealth wants US to take this word any

01:42 - 19.738 and just run with it but that would make the rest of the.

01:42 - 21.418 Sentence superfluous.

01:42 - 25.438 Because the rest of the sentence gives an example now it does say

01:42 - 27.568 including but not limited to

01:42 - 28.318 but.

01:42 - 30.988 It gives specific examples for a reason

01:42 - 33.148 because those are the kinds of things.

01:42 - 35.008 It could be established.

01:42 - 36.818 And.

01:42 - 39.448 I can tell you as an attorney who was

01:42 - 42.118 started during preliminary hearings in two thousand and eight.

01:42 - 45.298 And who has done them off and on for

01:42 - 47.008 quite a few years now

01:42 - 51.898 and watching the way the changes happened in two thousand and eleven and two thousand

01:42 - 52.898 and thirteen.

01:42 - 57.598 It really did change the practice in Philadelphia a lot and that's when the ownership

01:42 - 59.638 and noncommissioned forum started coming in

01:42 - 01.198 but what it changed

01:43 - 03.448 in practice and from what I could see.

01:43 - 04.808 Is that.

01:43 - 09.688 The main difference there was with two thousand and eleven amendment suddenly there

01:43 - 10.688 were no more.

01:43 - 11.858 Car owners.

01:43 - 13.948 Sitting through several hearing things

01:43 - 15.388 there were no more.

01:43 - 20.908 Homeowners coming in just to say I don't I didn't give that person permission suffer

01:43 - 22.988 is missing from my house hear about how much it cost.

01:43 - 25.318 Who didn't know anything about

01:43 - 26.968 who this person was

01:43 - 31.618 or what they were supposed to have done and that was the main change that happened in

01:43 - 32.878 the practice that I saw

01:43 - 35.368 and in two thousand and thirteen.

01:43 - 38.728 It really did become a lot more confused.

01:43 - 41.158 As to what does this mean

01:43 - 42.368 and.

01:43 - 47.818 Including but not limited to it it changed it but it did largely stay the same in

01:43 - 49.168 Philadelphia there started to be.

01:43 - 50.938 I call it a little bit of.

01:43 - 55.468 Fudging around the edges sometimes a little bit more heresy would be allowed.

01:43 - 56.978 And.

01:43 - 57.868 But.

01:43 - 01.528 Having those specific rules and things like that

01:44 - 03.508 established by non heresy

01:44 - 05.908 what it changed in practice was.

01:44 - 08.908 No more witnesses who didn't know anything about

01:44 - 11.248 what the defendant was supposed to have done.

01:44 - 13.288 It wasn't a difference in.

01:44 - 15.748 Suddenly we don't even know

01:44 - 18.058 anything about how this person was identified

01:44 - 19.108 and that's

01:44 - 21.748 that's where the commonwealth wants to go now to say

01:44 - 25.138 well let's just focus on this word any and run with it

01:44 - 28.198 and ignore the list at the end of subsection e.

01:44 - 29.558 So.

01:44 - 32.638 That is it just a completely different

01:44 - 34.288 animals like once.

01:44 - 37.168 Rico came down and said

01:44 - 39.058 everything can be done by hearsay

01:44 - 43.408 cases like this started to happen cases where they're never going to get

01:44 - 44.878 in touch with this complainant

01:44 - 47.848 I dunno if it's because they waited two years to charge the case.

01:44 - 51.958 They certainly have never established a prima facie burden that I'm sorry a

01:44 - 55.228 probable cause burden which would have allowed them to go to a grand jury if there

01:44 - 56.728 was really witness intimidation

01:44 - 58.558 but what it led to is.

01:44 - 04.378 Let's let people sit in jail or face charges for months and months and months and

01:45 - 05.788 months and so will six hundred.

01:45 - 10.228 Is really great when it actually leads to a dismissal and six hundred.

01:45 - 13.318 B is really great when people actually get out at six months

01:45 - 16.858 but there are a lot of other things that

01:45 - 18.064 keep people in jail for long periods of time.

01:45 - 20.308 Including mr Harrison this case.

01:45 - 21.139 Class

01:45 - 23.578 your understanding of mcclellan and the rule.

01:45 - 24.838 If

01:45 - 26.458 the prosecutor.

01:45 - 30.568 Had put on the hearsay evidence that they used to establish the identity of the

01:45 - 32.248 defendant as the perpetrator

01:45 - 33.518 of the crime

01:45 - 38.758 but also put an additional evidence to show that the defendant was in the area at the

01:45 - 40.018 time the crime happened.

01:45 - 42.088 The defendant was

01:45 - 44.368 seen running from the scene

01:45 - 45.818 and.

01:45 - 47.378 Would would

01:45 - 48.688 that be sufficient

01:45 - 50.098 to get over

01:45 - 53.668 the mcloughlin hurdle because it's not hearsay alone.

01:45 - 55.058 That.

01:45 - 57.418 Sets forth a prime aphasia case

01:45 - 59.638 that the defendant is the perpetrator.

01:46 - 03.658 I would say knowing what we do about.

01:46 - 06.808 How unreliable eyewitness identification is

01:46 - 09.178 that that doesn't actually make US any more certain.

01:46 - 12.724 And certainty is what we want we want to be pretty certain that this is the person

01:46 - 15.088 and so knowing that this person was in the area

01:46 - 17.008 or that when there were gunshots fired

01:46 - 19.558 he was one of the people running from the scene.

01:46 - 20.188 What

01:46 - 21.768 I'm trying to give I'm trying to give

01:46 - 21.912 a.

01:46 - 23.908 I'm trying to give examples but I'm just

01:46 - 29.218 again I want to make sure that I understand

01:46 - 30.754 you're not saying that heresy can't be used.

01:46 - 32.218 To identify a perpetrator

01:46 - 37.378 were our argument is that subsection that there isn't anything in the rule which says

01:46 - 38.608 it can be used.

01:46 - 41.998 That the admissibility issue he goes simply to

01:46 - 46.017 whether an offense has been committed and not to who committed it so when when the

01:46 - 49.738 law says heresy as provided by law shall be considered by the issuing authority

01:46 - 52.468 determining whether a prom efficient case has been met.

01:46 - 56.578 Has been established you interpret that language as being limited

01:46 - 00.418 to the elements even though it says prime official case.

01:47 - 05.338 Well when read in a larger context but if that sentence was the only thing that was

01:47 - 07.138 in subsection e I'd have a different argument

01:47 - 08.938 but because there's the second set.

01:47 - 13.618 There's the comment talking about how subsection he is about elements

01:47 - 18.328 then I said that changes the meaning of it because it doesn't stand alone so you want

01:47 - 20.848 US to actually rule that heresy cannot be used.

01:47 - 21.838 Period.

01:47 - 25.078 On witnesses an identification of the perpetrator

01:47 - 25.738 correct.

01:47 - 28.768 This took a right turn or a left turn to me that

01:47 - 31.918 I thought you were saying it can be used

01:47 - 34.258 but it cannot be the sole evidence.

01:47 - 38.008 As to identity because you're separating as

01:47 - 39.958 this court did in Perez.

01:47 - 42.898 You're separate rating the elements of the offense

01:47 - 48.058 from the identity of the perpetrator and I thought what you were saying in this case

01:47 - 48.508 is

01:47 - 54.448 hearsay can be used but it cannot be the sole

01:47 - 54.838 evidence as to the identity am I wrong there

01:47 - 56.138 well.

01:47 - 57.688 We can't both be right.

01:47 - 59.788 It

01:47 - 00.947 it.

01:48 - 05.008 Most of the types of heresy that are butter saying or supplemental

01:48 - 09.358 are actually not excluded by the rules so I think that maybe one or two because under

01:48 - 10.738 eight o three point one.

01:48 - 14.818 If the complainant had come in and made an identification the detective could also

01:48 - 15.538 have put in

01:48 - 18.418 his prior statements of identification and so there's other

01:48 - 23.338 your guess going back to our buttress theory right and so I guess that different than

01:48 - 25.018 when you can't use I'll say hey.

01:48 - 28.888 You can't access here so I guess that would be legally competent evidence that and

01:48 - 30.358 right so this is

01:48 - 30.958 so.

01:48 - 34.978 If a person is there to testify to it then their prior identification.

01:48 - 38.968 Is legally competent evidence because they can be cross-examined on it

01:48 - 40.978 and so I guess that's.

01:48 - 45.868 Because Pennsylvania rules of evidence still call that heresy.

01:48 - 48.448 Maybe that's a little bit of the confusing part but.

01:48 - 53.548 If I would say legally competent evidence is required to make the identification.

01:48 - 55.438 And so.

01:48 - 00.268 If those additional information that they were seen in the area I almost don't even

01:49 - 01.558 know that something like that.

01:49 - 03.898 Establishes identification right.

01:49 - 08.518 It could just as easily explain why this person identified the wrong

01:49 - 09.758 the wrong guy.

01:49 - 13.078 It's a little bit complicated but we're going to figure it out.

01:49 - 17.638 Ever faith that I think we understand your argument are there any other

01:49 - 18.758 questions.

01:49 - 21.418 Very well done by both thank you thank you.

01:49 - 29.308 Our third case for today is Pennsylvania state education association.

01:49 - 32.698 Vs public school employees retirement board

01:49 - 35.488 ninety and a p twenty twenty two.

01:49 - 40.918 This appeal arises from the ruling of the commonwealth court sitting in it's original

01:49 - 41.918 jurisdiction.

01:49 - 46.348 Therefore this as a direct appeal to this court and no discretionary review.

01:49 - 47.918 Was required.

01:49 - 52.798 The Pennsylvania state education association or p s e a

01:49 - 56.908 filed an action for declaratory judgment in the commonwealth court.

01:49 - 59.458 Arguing that the Pennsylvania school.

01:50 - 03.028 Employees retirement board or piece heiress board rd.

01:50 - 08.728 Acted outside of its power and is required to take certain actions in order to ensure

01:50 - 10.078 that the retirement system

01:50 - 11.098 is funded

01:50 - 14.218 when jobs are subcontracted or outsourced

01:50 - 16.318 to companies that do not contribute to the.

01:50 - 17.738 Pension fund.

01:50 - 22.828 Right at the beginning of the case the pieces board filed preliminary objections

01:50 - 24.868 to psc as standing.

01:50 - 27.167 Arguing that psc

01:50 - 29.638 was not the correct plaintiff in this case.

01:50 - 31.528 The Pennsylvania school

01:50 - 34.198 board association intervened in the case

01:50 - 36.838 and filed similar preliminary objections.

01:50 - 41.428 Rather than getting to the merits of the case the commonwealth court agreed

01:50 - 44.848 that psc a lacked standing and dismissed the lawsuit.

01:50 - 49.018 On appeal psc a argues that this was error

01:50 - 50.518 because it's actions.

01:50 - 54.028 It's action met the stat test for standing.

01:50 - 59.788 In other words psc a argues that his interests in the pieces board's actions.

01:51 - 05.278 Are substantial direct and immediate as required under Pennsylvania standing law.

01:51 - 07.138 Is in particular.

01:51 - 13.438 Psc a argues that if interest is direct because sub-contracting is a major part.

01:51 - 16.288 Of union negotiations with school districts.

01:51 - 18.448 According to psc a

01:51 - 22.318 the pieces board's refusal to apply the funding statute.

01:51 - 23.648 At issue

01:51 - 25.948 when school districts outsource jobs

01:51 - 31.018 may means that psc a cannot assess the true cost of sub-contracting.

01:51 - 35.878 Psc a claim that needs this information in order to inform their bargaining

01:51 - 37.088 positions.

01:51 - 42.538 Pieces board and it's aligned intervener the Pennsylvania school board association.

01:51 - 46.528 Argue that the commonwealth court was correct to dismiss for lack of staff.

01:51 - 50.664 According to these parties just because pieces

01:51 - 52.944 board's actions could affect

01:51 - 56.094 the bargaining position of psc as members

01:51 - 58.344 during contract negotiations.

01:51 - 00.804 Does not give p s ii a standing.

01:52 - 03.804 According to the pieces board and the school

01:52 - 05.124 board association.

01:52 - 09.894 Pieces real dispute is with the school boards not with the pieces board

01:52 - 14.934 which has no role in deciding whether school

01:52 - 15.294 districts will subcontract or outsource some.

01:52 - 17.664 Positions at some point.

01:52 - 19.854 Let's listen to the arguments.

01:52 - 22.104 Good morning

01:52 - 23.364 good morning your honours

01:52 - 29.364 in this declaratory judgment action the

01:52 - 29.754 Pennsylvania state education association psc a.

01:52 - 35.874 Which is a labor union representing itself local associations and member employees

01:52 - 42.204 seeks to challenge the refusal of the public school employees were retirement board

01:52 - 46.584 to apply in sub-contracting situations.

01:52 - 52.914 The withdrawal liability provisions of the public school employees retirement code.

01:52 - 58.284 These provisions apply when an employer withdraws employees

01:52 - 02.274 from the public school employees retire Vermont's system.

01:53 - 06.534 We've been asked today to determine whether psc a

01:53 - 09.204 has standing to bring this action.

01:53 - 11.554 Thank you your honor.

01:53 - 15.024 I am pleased to be here this morning.

01:53 - 19.464 Actually I've been here before.

01:53 - 24.504 Fifty one years ago I was sitting in one of the reserved seats as a clerk for Ben Jones

01:53 - 25.914 chief justice Jones.

01:53 - 27.484 And.

01:53 - 31.434 One of my professional goals was always to be back in front of this court to decide

01:53 - 35.004 important issues unfortunately I've had the opportunity to do that.

01:53 - 36.774 On several occasions asians.

01:53 - 38.004 And this is

01:53 - 44.184 why Thomas Scott I am Thomas Scott representing psc I am representing psc our honor.

01:53 - 49.704 And this is an important issue before you today.

01:53 - 51.574 The real question.

01:53 - 53.604 I think has been stated.

01:53 - 57.204 On many occasions by this court in predecessor courts.

01:53 - 59.634 Are we an inappropriate

01:53 - 00.754 plaintiff.

01:54 - 03.384 The answer is

01:54 - 05.454 we are the proper plaintiff

01:54 - 07.374 to bring this case.

01:54 - 12.924 Like so many cases that come before this court it's not straightforward.

01:54 - 14.704 The law

01:54 - 18.534 can be easily stated and has been repeatedly stated.

01:54 - 19.914 It.

01:54 - 22.074 Could be that if you were to

01:54 - 25.854 string together all the citations of what creates standing.

01:54 - 28.224 You might have the longest singles.

01:54 - 29.854 During sight.

01:54 - 31.764 In the history of the Pennsylvania courts.

01:54 - 37.974 And we've been adding to that in recent years yes in recent months

01:54 - 39.124 actually.

01:54 - 39.774 And

01:54 - 40.213 the.

01:54 - 43.374 Interestingly the divergence of opinions.

01:54 - 45.654 Among within the court and

01:54 - 46.374 among

01:54 - 47.724 the justices.

01:54 - 52.374 Shows that although it should be easy it's not always easy.

01:54 - 54.564 Because after all

01:54 - 56.634 that standing determination

01:54 - 00.504 that's the gatekeeper that gets people into court

01:55 - 01.974 or not into court.

01:55 - 03.564 And

01:55 - 04.854 therefore becomes

01:55 - 07.764 in many instances the determining factor

01:55 - 10.824 and in this case it is the determining factor.

01:55 - 12.834 And what it determines

01:55 - 14.394 is whether or not.

01:55 - 16.764 The retirement board Peters.

01:55 - 20.034 Is going to be able to take a statute

01:55 - 22.134 enacted by the general assembly.

01:55 - 24.864 That says you you're supposed to imply.

01:55 - 27.594 Employer withdraw liability

01:55 - 29.514 under these set of circumstances

01:55 - 31.014 one of which we say

01:55 - 32.394 the subcontracted.

01:55 - 34.464 You are to identify it.

01:55 - 36.174 You are to quantify it

01:55 - 37.494 you are to apply it

01:55 - 39.864 and you are collected your to do this.

01:55 - 40.704 And.

01:55 - 42.864 We're not talking about peanuts.

01:55 - 47.274 That employer withdrawal liability as a substantial amount of money.

01:55 - 49.044 The general assembly.

01:55 - 50.184 Interested they

01:55 - 53.424 the same day they passed the law the governor signed it

01:55 - 54.174 and it's and

01:55 - 57.534 it's effective in sixty days which should have been.

01:55 - 59.964 September of two thousand and nineteen.

01:56 - 02.274 Here it is four years later

01:56 - 04.044 nothing has been done.

01:56 - 06.894 It'd be bad enough

01:56 - 08.424 if nothing had been done.

01:56 - 10.104 But in this case.

01:56 - 13.104 The retirement board said in it's own resolution.

01:56 - 15.324 Twenty twenty one dashiell eight

01:56 - 17.964 we're not going to do anything.

01:56 - 20.364 We are not going to apply.

01:56 - 21.724 The provisions

01:56 - 24.564 of withdrawal liability to outsourcing.

01:56 - 26.274 Until there is a

01:56 - 27.864 study done by our people

01:56 - 29.244 that might have been ok

01:56 - 30.654 but be

01:56 - 32.784 and additional legislation.

01:56 - 35.694 Under what set of circumstances.

01:56 - 36.624 Does a

01:56 - 41.064 state agency even one is a pin independent and as important as pieces.

01:56 - 42.684 Have the right to say.

01:56 - 45.144 We're not going to apply this law.

01:56 - 47.364 Until you pass another law.

01:56 - 49.114 That.

01:56 - 50.784 That's why we said.

01:56 - 53.124 It's an ultra theories action.

01:56 - 54.984 But I don't want to get

01:56 - 56.544 into the weeds on the merits.

01:56 - 59.124 The issue today is standing.

01:56 - 00.984 Do we have.

01:57 - 04.974 A direct and immediate direct

01:57 - 07.584 and substantial interest in this case.

01:57 - 09.334 The immediacy.

01:57 - 10.654 Issues pretty.

01:57 - 13.554 From my perspective at least pretty easy to solve.

01:57 - 14.994 Who.

01:57 - 18.804 Has any do we have a greater interest than the general public

01:57 - 20.334 and the application of an.

01:57 - 22.644 Employer withdrawal liable realty.

01:57 - 24.534 In the retirement system.

01:57 - 26.164 We certainly do.

01:57 - 29.844 Our members are the members of that system.

01:57 - 33.114 A big chunk of our money goes into that system.

01:57 - 35.604 Our employers provide

01:57 - 38.754 significant money in that system and ultimately that pension.

01:57 - 42.714 Is in some regards one of the most important aspects of our employment.

01:57 - 48.624 Another issue that can be addressed there is if not US.

01:57 - 50.194 Then who.

01:57 - 51.984 The reality is.

01:57 - 53.964 The other two parties

01:57 - 56.304 the other two legs to this three legged stool.

01:57 - 57.504 Are sitting

01:57 - 59.064 at the police table.

01:57 - 03.534 The school districts do not have any interest in paying withdrawal liability.

01:58 - 06.504 And pieces has said we're not going to do it.

01:58 - 11.934 From our perspective.

01:58 - 14.394 Our interest is certainly.

01:58 - 15.934 Substantial.

01:58 - 21.504 It's substantial because there is a causal relationship.

01:58 - 24.234 Between what pieces has done.

01:58 - 25.564 In this case.

01:58 - 29.784 They the the cases talk about the action that you are complaining of.

01:58 - 31.854 Does it violate a legal right.

01:58 - 35.724 The action were complaining of here is inaction.

01:58 - 38.484 And it clearly violates illegal right

01:58 - 40.734 and the legal right that we have.

01:58 - 45.114 Is to know when we negotiate collective bargaining agreements

01:58 - 46.824 whether or not.

01:58 - 50.134 The facts.

01:58 - 51.564 That exist.

01:58 - 55.332 Are on the table for negotiation does that make

01:58 - 57.144 your legal right though.

01:58 - 59.104 It makes US.

01:58 - 59.634 Your honor

01:58 - 01.524 I believe that our legal right.

01:59 - 06.714 You have to put two statutes together here

01:59 - 07.374 there's no.

01:59 - 08.394 I'm not going to

01:59 - 09.684 back away from that.

01:59 - 11.514 Because that's what you do.

01:59 - 14.184 There's plenty of reasons why you should do it

01:59 - 16.224 because they relate to the same.

01:59 - 20.274 Basic issue I mean we could talk about Perry materia but we're talking about

01:59 - 22.164 employees employers pensions

01:59 - 22.704 and

01:59 - 24.534 collective bargaining agreement.

01:59 - 28.944 The labor board has declared.

01:59 - 31.914 That when sub-contracting is raised.

01:59 - 34.764 The employer has an obligation

01:59 - 38.034 to provide the employee organization the union.

01:59 - 41.064 With the information necessary

01:59 - 43.314 to adequately respond

01:59 - 45.384 to the subcontract proposal.

01:59 - 48.384 That information necessary.

01:59 - 50.334 Pretty simple most of the time.

01:59 - 52.524 Here's what it's going to cost US

01:59 - 54.054 if we sub-contract

01:59 - 57.684 and here's what your union contract is going to cost US

01:59 - 00.084 and there's four million dollars in difference

02:00 - 02.604 so if you can save US four million dollars

02:00 - 05.454 we might not subcontract but if you can't.

02:00 - 07.734 We're sorry but we're going to

02:00 - 10.554 I'm talking about economic sub-contracting here.

02:00 - 12.384 And it's a numbers game.

02:00 - 15.054 The reality is.

02:00 - 15.834 That.

02:00 - 18.058 Going to get into the merits but I'm like one.

02:00 - 19.464 So

02:00 - 21.564 employers must tell US.

02:00 - 23.484 What is

02:00 - 25.374 between a sub-contracted.

02:00 - 27.454 Future.

02:00 - 29.784 And a unionized collective bargaining

02:00 - 30.904 future.

02:00 - 34.524 One of the singularly important issues

02:00 - 35.704 in that.

02:00 - 37.494 Determination.

02:00 - 38.904 Is.

02:00 - 41.964 What are the pension costs associated

02:00 - 43.644 with the sub contracting.

02:00 - 48.294 Vs retaining the unionized employees who are members of pi servers.

02:00 - 51.384 The

02:00 - 54.384 statute that the general assembly passed.

02:00 - 55.914 Was intended

02:00 - 57.324 and in fact.

02:00 - 59.254 If applied.

02:00 - 00.574 Will.

02:01 - 03.934 Recapture.

02:01 - 05.925 From employees that

02:01 - 08.274 are employers rather that subcontract

02:01 - 10.914 public sector workers to the private sector.

02:01 - 13.174 The.

02:01 - 14.814 Unfunded liability

02:01 - 17.844 that they are leaving behind in pacers

02:01 - 19.704 for those employees.

02:01 - 23.274 The general assembly said

02:01 - 24.514 when you do that.

02:01 - 25.062 In.

02:01 - 26.814 Public sector employer.

02:01 - 28.404 After the fact

02:01 - 30.414 pieces can collect money from you.

02:01 - 34.854 The value of whatever that withdrawal liability is.

02:01 - 36.894 It's a calculable number.

02:01 - 42.564 If that statute were being applied.

02:01 - 43.644 As.

02:01 - 44.514 Written

02:01 - 47.004 and as directed by the general assembly.

02:01 - 51.042 Pleasers would not be saying.

02:01 - 53.032 To.

02:01 - 54.592 Employers.

02:01 - 57.042 We're not going to apply.

02:01 - 59.532 Withdrawal liability

02:02 - 01.242 to outsourcing.

02:02 - 03.492 Until there's more legislation.

02:02 - 05.532 Mr mr Scott.

02:02 - 06.912 Guess I have

02:02 - 08.292 I have a couple of questions.

02:02 - 09.312 I think I

02:02 - 11.352 understand what your point is but.

02:02 - 16.602 I'm just wondering whether a declaratory judgment action in the commonwealth court.

02:02 - 19.632 It is the proper place.

02:02 - 21.702 For this issue to

02:02 - 22.972 be raised

02:02 - 25.242 and you mentioned bargaining.

02:02 - 27.492 In the context of bargaining.

02:02 - 32.412 You would have an opportunity to use the calculations in the statute

02:02 - 34.122 to tell the.

02:02 - 36.822 School district if they are unwilling to.

02:02 - 41.862 Include that in their calculations of savings what back cost is going to be and

02:02 - 43.512 that's something you would be able to.

02:02 - 46.002 Deal with in the bargaining process correct.

02:02 - 47.542 Your honor.

02:02 - 49.572 If pieces.

02:02 - 53.142 Had simply said in their resolution or that.

02:02 - 55.572 If peace if the position of pacers.

02:02 - 57.172 Today.

02:02 - 59.292 Was we will apply.

02:02 - 01.272 Withdrawal liability

02:03 - 04.632 to outsourcing or sub-contracting situations.

02:03 - 07.062 We would not need to be here.

02:03 - 09.852 Well they didn't say they're not I'm going to guess they did

02:03 - 11.652 they said we're not going to do it

02:03 - 15.342 if you look at that resolution that says we're not going to apply it

02:03 - 17.652 until there is additional legislation

02:03 - 18.102 okay.

02:03 - 19.432 So.

02:03 - 20.572 Let's assume we're right

02:03 - 25.482 what relief are you asking for in the commonwealth court petition for review

02:03 - 30.282 in the commonwealth court petition for you we you are asking for a declaration.

02:03 - 35.292 That that resolution was an ultra varies act and has no validity.

02:03 - 36.252 a

02:03 - 37.432 and b

02:03 - 42.492 that the statute does in fact apply to

02:03 - 43.182 outsourcing and they must apply it to outsourcing

02:03 - 47.952 that's all we want but don't need any numbers or anything else so the prb makes an

02:03 - 48.672 interesting argue

02:03 - 51.192 and I think that their their point being.

02:03 - 54.612 Not every what you call outsourcing.

02:03 - 56.892 Is going to trigger.

02:03 - 01.632 The liability under the statute and they need to be able to make independent

02:04 - 05.532 assessments based on each particular alleged outsourcing.

02:04 - 09.312 And you seem to want this sort of blanket.

02:04 - 13.902 Do you want to come off court through a trial through an argument to decide that

02:04 - 16.872 which the general assembly has vested the board with deciding.

02:04 - 19.102 Your honor.

02:04 - 21.762 From our perspective.

02:04 - 23.982 The opposite is true

02:04 - 25.212 I can concede

02:04 - 26.532 that not every.

02:04 - 29.442 Sub contracting outsourcing whatever you want to call it.

02:04 - 30.892 May.

02:04 - 31.902 Entail

02:04 - 33.432 withdrawal liability.

02:04 - 38.982 Not every outsourcing or sub-contracting may entail enough numbers to move the.

02:04 - 40.522 Meter.

02:04 - 41.572 In bargaining.

02:04 - 43.962 But some of them will.

02:04 - 45.285 So it's a problem.

02:04 - 46.682 That gets to my point though.

02:04 - 49.272 If you get what you want.

02:04 - 51.702 You're not going to get

02:04 - 56.142 anything because you're still going to have a debate over whether the particular

02:04 - 59.562 outsourcing that your union is fighting over that you're eating is bargaining over

02:04 - 01.932 whether it is the type of outsourcing

02:05 - 04.002 that would be triggered by the statute.

02:05 - 09.432 So you're you're not getting any finality to your concern I can see wanting to I can

02:05 - 12.912 see wanting to get the pl rb to make a decision.

02:05 - 16.542 Or to at least put school districts on notice.

02:05 - 20.802 That they may be subject to the withdrawal liability on the statute.

02:05 - 22.649 But you seem to

02:05 - 26.232 one a blanket declaration that all withdraws.

02:05 - 27.192 That that

02:05 - 31.272 that the statute applies to every withdrawal and everything that is going to happen

02:05 - 34.152 and use that as an arrow in your quiver.

02:05 - 37.452 During labor negotiations

02:05 - 39.192 which also seems to run.

02:05 - 43.392 Counter to the declaratory judgment act that says it's not intended to eight a party

02:05 - 44.502 in another transaction.

02:05 - 45.892 Your honor.

02:05 - 47.892 I said all the things that.

02:05 - 51.702 I was willing to concede but I never got to my point

02:05 - 53.002 my point is.

02:05 - 54.712 The way.

02:05 - 55.602 That

02:05 - 57.852 ps ers has handled this

02:05 - 00.822 they have made a blanket declaration.

02:06 - 03.192 They are the ones that have said

02:06 - 07.152 we're not going to apply withdrawal liability

02:06 - 08.332 to outsourcing

02:06 - 09.882 until there's more legislation.

02:06 - 11.262 That.

02:06 - 13.842 That's not just a chilling effect your honor

02:06 - 16.002 that's a complete bar I mean.

02:06 - 18.772 What.

02:06 - 20.772 What reasonable school district.

02:06 - 22.932 Is going to remotely.

02:06 - 24.262 Consider.

02:06 - 27.192 The potential for outsourcing liability.

02:06 - 32.412 When the agency that is to identify assess and collect that liability

02:06 - 34.362 has said in a regulation

02:06 - 36.402 we're not going to do that.

02:06 - 38.712 Not going to do it now we're not going to do it.

02:06 - 41.412 In some unforeseen future

02:06 - 43.062 the result of that has been.

02:06 - 45.462 The absolute nullification.

02:06 - 47.622 Of one entire subsection.

02:06 - 49.132 Of.

02:06 - 51.882 Section eighty three twenty seven point one.

02:06 - 55.242 That's beyond their scope your honor.

02:06 - 59.262 One of the things that I

02:06 - 59.552 that

02:06 - 03.612 the other side has said repeatedly and that the commonwealth court quite frankly

02:07 - 04.932 where they got it wrong.

02:07 - 07.152 The biggest single mistake

02:07 - 08.982 made by the commonwealth court.

02:07 - 12.672 Was to say we are here to avoid sub-contracting.

02:07 - 14.202 We are not.

02:07 - 17.982 We are here to require hire a state agency.

02:07 - 19.572 To

02:07 - 21.612 fulfill a directive

02:07 - 23.592 given by the general assembly.

02:07 - 25.452 To assess.

02:07 - 28.872 Liability under a certain set of circumstances.

02:07 - 30.672 If they do it.

02:07 - 33.402 It doesn't matter that it comes after the fact

02:07 - 35.832 it doesn't matter that it might be variable

02:07 - 39.762 it doesn't matter that it might not affect any particular sub cant tracking.

02:07 - 44.922 What matters is that by saying no we're not going to do it anytime anywhere.

02:07 - 48.792 It affects all sub contracting and it affects it in a way

02:07 - 51.402 that takes that knowledge off of the table.

02:07 - 57.042 This is a significant number in many subcontractors.

02:07 - 58.902 It's millions of dollars.

02:07 - 00.232 Potentially.

02:08 - 02.272 And.

02:08 - 04.612 If.

02:08 - 08.322 If an employee of a school district came to the bargaining table and said well we're

02:08 - 08.862 only going to

02:08 - 10.212 tell you about

02:08 - 11.832 part of our cost.

02:08 - 12.552 Of

02:08 - 16.062 that we're going to cost when it's going to cost US when we sub-contract

02:08 - 18.942 but there's at least twenty percent of it out here that.

02:08 - 20.742 We're not going to tell you about.

02:08 - 24.732 That would be an unfair labor practice in a heartbeat and yes we need to bring it to

02:08 - 26.382 the pl are we would we would

02:08 - 27.096 but.

02:08 - 31.572 How does it impact you directly though in terms of your collective bargaining.

02:08 - 33.508 Whether you know this information

02:08 - 35.442 because your honor if we if

02:08 - 37.422 we don't even need to know the numbers

02:08 - 39.102 all we need to know.

02:08 - 40.272 Is that

02:08 - 41.862 this liability.

02:08 - 43.602 Is applique w

02:08 - 45.012 to outsourcing

02:08 - 46.312 when.

02:08 - 50.592 A covered entity removes part of it's workforce

02:08 - 52.212 from the retirement system

02:08 - 54.222 but you won't know that that goes back to the

02:08 - 55.542 point that you conceded.

02:08 - 01.512 You won't know that because every transaction is different you're simply going to be

02:09 - 02.512 arguing.

02:09 - 07.002 In your labor negotiation over whether this particular

02:09 - 09.672 proposed outsourcing will trigger.

02:09 - 11.182 The statute.

02:09 - 16.632 I would I would disagree with that because I think the statute is clear.

02:09 - 19.392 That that in fact it is triggered your honor.

02:09 - 22.452 If and then there again

02:09 - 24.642 if also distributed every okay so

02:09 - 25.272 that

02:09 - 29.832 I thought you conceded earlier that not every outsourcing would trigger the statute

02:09 - 32.232 that's possible I mean I I'm not sure how

02:09 - 32.772 but

02:09 - 33.192 true

02:09 - 34.602 to my initial point.

02:09 - 36.582 If that is an issue

02:09 - 39.822 and if that's an issue worthy of judicial consideration.

02:09 - 44.892 That's the issue we didn't get to raise because

02:09 - 45.312 they said we had no standing to robot okay

02:09 - 46.552 but that kind of.

02:09 - 51.012 Again I'm worried about standing because I'm also worried about the idea that

02:09 - 54.882 you're the real leaf you're seeking from from the commonwealth court.

02:09 - 58.842 And and maybe it's really just standing maybe it's not but.

02:09 - 00.282 The idea.

02:10 - 03.372 That you're going to get something

02:10 - 05.082 that is going to help you

02:10 - 06.852 in labor negotiations.

02:10 - 11.862 The only thing that I think you could get that would help you is a declaratory

02:10 - 16.332 judgment by the commonwealth court that in every outsourcing transaction in every

02:10 - 17.332 proposed.

02:10 - 18.742 Outsourcing.

02:10 - 22.152 The statute is going to be triggered and it's going to do triggering a withdrawal

02:10 - 23.152 liability.

02:10 - 25.602 Is that what you're asking the commonwealth court to give you

02:10 - 26.157 your honor

02:10 - 26.532 it's

02:10 - 28.302 not quite that draconian.

02:10 - 31.002 What we're asking the commonwealth court to do.

02:10 - 32.622 Is to declare that

02:10 - 33.732 Peters

02:10 - 35.112 cannot say.

02:10 - 37.002 In black letter law

02:10 - 40.482 we're not going to apply outsourcing until there's more legislation

02:10 - 41.682 that's the a part.

02:10 - 44.382 Take that resolution off the table.

02:10 - 46.122 And then the beep part.

02:10 - 47.502 Is to say.

02:10 - 50.862 Do what the statute says which is

02:10 - 53.562 collect facts make a detour emanation

02:10 - 57.822 and let the world that we're dealing with here which is the world of school districts

02:10 - 58.692 know

02:10 - 00.972 that this is a potential cost

02:11 - 02.772 and it doesn't just help US your honor.

02:11 - 04.752 If there is sub-contracting.

02:11 - 06.912 And if down the road

02:11 - 08.832 and it's done to save money

02:11 - 12.312 and if down the road pieces makes a determination that.

02:11 - 14.982 Indeed eat there is withdrawal liability

02:11 - 16.902 and it's a huge number.

02:11 - 22.302 Then all of a sudden not just our bar you know we lost our jobs but the taxpayers

02:11 - 23.502 may lose their money.

02:11 - 26.022 So you want a declaration.

02:11 - 31.782 Just to just to sum up you are not asking for a declaration that all outsourcing

02:11 - 32.982 triggers liability.

02:11 - 34.962 You want a declaration.

02:11 - 36.292 That.

02:11 - 39.012 The board just simply needs to follow the law.

02:11 - 41.352 Strike the resolution

02:11 - 47.352 and recognize that at some point on a transaction specific occurrence.

02:11 - 51.342 Which remember the assessment doesn't happen until after the transaction is done.

02:11 - 53.472 They may assess a will.

02:11 - 57.044 I ability and that's enough for you that they might

02:11 - 00.344 a declaration that they might assess of withdrawal liability.

02:12 - 01.904 Your honor

02:12 - 05.744 frankly from today's perspective all we're asking is that we have the right to

02:12 - 07.994 be in court to challenge those questions

02:12 - 08.654 but.

02:12 - 10.074 Down the road

02:12 - 13.784 yes your honor what I I'm not going to say it quite that narrowly.

02:12 - 16.364 Because I think the statute says it more.

02:12 - 18.164 More perfectly.

02:12 - 19.584 When it says.

02:12 - 22.454 Here is when a liability attaches

02:12 - 23.984 liability attaches

02:12 - 26.594 when an entity remains in business

02:12 - 28.934 but removes some of it's employees

02:12 - 30.494 from the retirement system.

02:12 - 32.804 If that if those facts exist

02:12 - 34.454 yes then there's liability d.

02:12 - 37.014 If if.

02:12 - 39.444 If the.

02:12 - 40.544 Really if the

02:12 - 44.114 people involved in this if the union and the school districts

02:12 - 48.704 knew that that was the fact which we believe is pretty clearly what the law says.

02:12 - 50.544 Then.

02:12 - 52.184 Whip.

02:12 - 56.264 Quite frankly we'd probably do our calculation of what we think withdrawal liability

02:12 - 56.594 is and

02:12 - 58.604 they'd certainly do their calculation

02:12 - 00.614 and those numbers would be on the table.

02:13 - 01.484 What

02:13 - 02.634 were at that.

02:13 - 04.454 All we are seeking.

02:13 - 06.164 Is the ability

02:13 - 10.304 to have what the general assembly said is a potential cost

02:13 - 11.774 of sub cant attracting.

02:13 - 18.614 Enforced and put on the table not nobody's going to collect money as a result of this

02:13 - 20.204 but we're going to know that it's.

02:13 - 21.534 That it's out there

02:13 - 26.384 for today's purposes all we're determining is whether you are the

02:13 - 29.504 appropriate party whether you have standing

02:13 - 30.404 to

02:13 - 32.294 to make that challenge.

02:13 - 35.414 Yes your honor are we what's the word.

02:13 - 39.884 Are we an improper plaintiff.

02:13 - 43.484 And I would submit to you that we are the proper plaintiff.

02:13 - 45.794 Because it is our interest.

02:13 - 47.954 That is directly affected

02:13 - 48.764 by.

02:13 - 51.314 The peace servers determination

02:13 - 54.194 that they're not going to enforce this statute

02:13 - 55.904 until there's more legislation.

02:13 - 01.034 With respect outsource what you said at the beginning of your argument if not ask him.

02:14 - 05.714 Is there any other party that you could identify that would have standing.

02:14 - 11.024 Not that I'm aware of your honor.

02:14 - 12.974 That.

02:14 - 17.624 Maybe an individual or arguably perhaps the commonwealth of Pennsylvania because the

02:14 - 19.904 commonwealth of Pennsylvania as a funding source

02:14 - 20.684 to.

02:14 - 22.304 Do this system but they.

02:14 - 25.814 Are aware of what's going on and they haven't done anything about it or school

02:14 - 26.324 district

02:14 - 27.444 or individual jewels

02:14 - 28.124 school gift

02:14 - 31.304 an individual school district but they are here your honor represented by.

02:14 - 34.154 Waiting quite a PSP or something else.

02:14 - 36.325 The answer is.

02:14 - 36.884 Edible.

02:14 - 40.394 Just if I could just just clear up a couple of extra things that.

02:14 - 45.794 Although I cited to the firearms case.

02:14 - 48.434 Well decided by the way

02:14 - 49.734 initially.

02:14 - 57.374 Not it's not because of any of that damocles choice or inappropriate it's it

02:14 - 58.874 has nothing to do

02:14 - 03.104 with language in that case that you don't you shouldn't have to choose between two

02:15 - 04.754 evils and that will get you into court.

02:15 - 06.414 It is.

02:15 - 07.934 The greater reality.

02:15 - 11.504 That where we do have declaratory judge my actions.

02:15 - 17.024 Some of the more stringent standards with respect to standing and ripeness.

02:15 - 22.484 Have been can be and ought to be relaxed I think that.

02:15 - 27.434 When justice sailor talked about the dynamic dynamic tension between standing and.

02:15 - 30.674 And declaratory judgment actions that's

02:15 - 32.264 more along the lines of

02:15 - 35.204 of what he was talking about and that dissenting opinion.

02:15 - 36.884 And I

02:15 - 41.234 don't want to get off on that tangent but I think it's important to recognize.

02:15 - 42.654 That.

02:15 - 49.184 In declaratory judgment actions were the goal frankly is to.

02:15 - 54.404 Have we been heart do we claim of being harmed by the.

02:15 - 56.504 Application of a statute

02:15 - 57.774 yes we do

02:15 - 01.724 we're being harmed because we are being deprived of the ability to know.

02:16 - 04.214 That a significant cost factor.

02:16 - 06.284 Will be on the table.

02:16 - 08.534 When we negotiate subcontracted

02:16 - 10.454 what mr Scott there is a there is the counter

02:16 - 13.784 one provision in the statute declaratory judgment acts where the general assembly

02:16 - 15.854 doesn't want it to be used as a weapon

02:16 - 20.324 and and and you didn't respond to the idea of the provision that says it's not to be

02:16 - 25.514 used ate another party in another transaction so why aren't you trying to use this to

02:16 - 26.514 aid you

02:16 - 27.254 and your

02:16 - 28.664 your client.

02:16 - 32.174 And another transaction that being labour negotiations.

02:16 - 35.204 Your honor I would

02:16 - 36.324 I would submit that.

02:16 - 37.614 The the fact that

02:16 - 38.924 psps sitting.

02:16 - 41.114 At the table next door.

02:16 - 45.854 Indicates that we are not involving a third party in our dispute.

02:16 - 48.824 Our dispute is not with school districts.

02:16 - 50.504 Our dispute is with

02:16 - 51.714 pieces.

02:16 - 54.344 It is pieces action that we challenge.

02:16 - 55.064 It is.

02:16 - 58.334 Pieces action that we asked this court to change

02:16 - 00.044 what happens after that.

02:17 - 02.204 Is simply what happens afterwards

02:17 - 02.984 but

02:17 - 05.924 right now none of that can occur.

02:17 - 07.541 Because.

02:17 - 10.094 Pisa said we refuse

02:17 - 11.114 to act.

02:17 - 12.914 On this section of the law

02:17 - 15.014 as ap like a Boulder sub-contracting

02:17 - 19.154 okay I think we understand your argument are there any further questions from

02:17 - 20.334 my colleagues.

02:17 - 22.724 Alright thank you so much mr thank you your honor.

02:17 - 37.334 May it please the court my name is Kayla Jackie ballots counsel for the public school

02:17 - 38.744 and police retirement board.

02:17 - 43.124 Council for the Pennsylvania school boards association Richard Goldman will also be

02:17 - 47.534 arguing today because there is really only one issue standing we did not divide up

02:17 - 51.494 the issues but he plans to add any additional points not otherwise argued.

02:17 - 57.164 The question today is whether the commonwealth court correctly held that psc does not

02:17 - 57.854 have standing

02:17 - 00.914 to challenge a funding provision of the retirement code

02:18 - 03.764 which will not affect member retirement benefits

02:18 - 04.884 pieces.

02:18 - 10.033 Standing requires that psc a have a substantial direct and immediate interest in the

02:18 - 11.033 litigation.

02:18 - 15.194 Courts will look to the zone of interest allies designed to protect to help

02:18 - 16.364 determined standing.

02:18 - 18.903 Psc a stated interest here

02:18 - 23.594 is remote and speculative and does not fall within the zone of interest the lies

02:18 - 24.764 designed to address.

02:18 - 27.374 I'm not sure it's

02:18 - 28.494 remote.

02:18 - 31.334 Or speculative so could you tell US why.

02:18 - 33.044 Yes and

02:18 - 38.984 as far as it being speculative psc has acknowledged I I consider pfcs harm from their

02:18 - 40.484 pleadings their alleged harm

02:18 - 43.964 that employers are more likely to sub-contract.

02:18 - 48.824 If withdrawal liability is not applied and they're less likely to subcontract if

02:18 - 50.564 withdrawal liability is applied

02:18 - 55.094 but they've acknowledged that an employer may

02:18 - 56.120 decide to subcontract or not to subcontract

02:18 - 00.104 regardless of the application of which are liabilities that they acknowledge I

02:19 - 01.544 I take it that that's the.

02:19 - 03.434 District's decision.

02:19 - 05.384 But they need to be able to

02:19 - 07.484 come to the bargaining table.

02:19 - 09.204 With the relevant.

02:19 - 10.554 Information.

02:19 - 13.184 Which the general assembly.

02:19 - 15.404 Told your client.

02:19 - 19.514 They have to provide and your client just declared.

02:19 - 21.434 They're not going to follow the statute.

02:19 - 22.794 So why doesn't

02:19 - 23.994 psc have.

02:19 - 25.687 Have standing to to

02:19 - 26.294 get the

02:19 - 27.944 formation of the general assembly

02:19 - 29.744 said is supposed to be provided.

02:19 - 35.834 I think I I have a couple of points in response to that first there is no pre

02:19 - 37.724 determination requirement in the law

02:19 - 41.354 so thesis is not required to be part of contract negotiations

02:19 - 45.974 review contract proposals and issue a pre determination on each proposal whether

02:19 - 47.954 withdrawal liability is going to apply.

02:19 - 49.484 After the fact.

02:19 - 53.984 I also disagree with the characteristic of their injury.

02:19 - 57.284 As a lack of information during bargaining

02:19 - 58.064 and

02:19 - 59.234 they've described.

02:19 - 02.174 Sub-contracting as the labor equivalent of

02:20 - 04.364 the nuclear bomb they don't want this

02:20 - 06.734 information just for the sake of information.

02:20 - 09.554 They want to use it for a specific purpose.

02:20 - 13.574 Nuclear bombs aside.

02:20 - 16.274 The general assembly told you.

02:20 - 17.864 That.

02:20 - 18.873 You need to

02:20 - 23.474 among other things determine the amount of the employers withdraw liability

02:20 - 27.434 and you you're bored just decided it wasn't going to do that.

02:20 - 28.514 And and

02:20 - 30.914 and and putting the merits aside for a moment.

02:20 - 32.364 They're here

02:20 - 35.144 because they want to get into court to challenge that

02:20 - 36.074 because they

02:20 - 38.264 say they want they need to know.

02:20 - 39.894 That amount.

02:20 - 41.364 Otherwise.

02:20 - 44.954 They don't know whether they can make a better deal or a better offer as it were

02:20 - 46.254 to these boards.

02:20 - 47.894 Around the commonwealth.

02:20 - 50.804 And and you're taking the position that.

02:20 - 52.034 They can't even

02:20 - 53.504 get into court.

02:20 - 57.044 To litigate that issue so if they can't do it.

02:20 - 58.794 Who can

02:20 - 00.434 and if nobody can.

02:21 - 02.534 Then haven't you folks just.

02:21 - 06.134 Arrogated some imperial power to.

02:21 - 08.734 Say you're going to make the law in this commonwealth.

02:21 - 12.614 Yeah there are a few questions there so I'll do my best to answer them but please ask

02:21 - 13.874 again if I miss one of them

02:21 - 17.684 as far as if not psc who I think that's a fair question

02:21 - 22.034 because withdrawal liability is about funding it would be the other employers who

02:21 - 23.384 contribute to pieces.

02:21 - 26.474 It happens with teasers is there is an unfunded liability

02:21 - 31.004 and all the employers are currently paying to that through contributions based on

02:21 - 32.004 their current payroll

02:21 - 36.884 so before we try liability if an employer were to leave pacers and this is it

02:21 - 41.084 that's I mean I've pointed it out in my brief but the law doesn't say outsourcing it

02:21 - 42.734 doesn't say stop contracting.

02:21 - 46.814 It presents a sir scenario and a prime example

02:21 - 47.474 of this would be a charter school closing

02:21 - 51.404 that would be the a one scenario where a school just goes out of business.

02:21 - 55.754 Without withdrawal liability their share of that unfunded liability would be passed

02:21 - 58.274 onto all the other employers in a cost sharing plan

02:21 - 01.724 withdrawal liability does is it says after you leave

02:22 - 04.064 the board's going to assess it's going to be.

02:22 - 05.594 Is going to collect it

02:22 - 09.854 and not cvss the other employers from having to pay their unfunded liability

02:22 - 13.484 so there is a proper plaintiff here and this case is really about

02:22 - 16.964 witnesses challenged or if it's challenged that the proper plaintiff is here

02:22 - 20.354 challenging it and that's the other employers because it is about funding

02:22 - 23.354 this all the other districts in the whole commonwealth.

02:22 - 24.494 Should come into

02:22 - 25.124 court

02:22 - 28.244 and litigate against the districts that want to

02:22 - 29.484 come out.

02:22 - 31.034 Is this because they don't want.

02:22 - 34.754 They they could but I I do want to point out they.

02:22 - 39.134 That those aren't the only employers who pay ntp servers there are other employers

02:22 - 41.294 that aren't school districts such as charter schools

02:22 - 44.894 or community colleges so it wouldn't just be limited to a district

02:22 - 50.834 but yes if other employers if if if it applies to sub-contracting as well that is the

02:22 - 53.054 substantive issue that has it been resolved

02:22 - 55.814 there are scenarios for this luck clearly

02:22 - 00.014 applies and that would be if a charter school closes the luck clearly applies

02:23 - 02.864 if a charter school closes off teasers membership

02:23 - 07.274 they could leave pacers and so if they open an alternative retirement plan

02:23 - 10.724 and say all our incoming employees are now going to enroll in that

02:23 - 14.024 then those are employees of those schools who are not in

02:23 - 17.954 rolling in pieces anymore and they're not contributing based on those employees

02:23 - 21.794 so those are two scenarios where it's very clear that it applies

02:23 - 23.924 and it is b I

02:23 - 27.134 don't think there's any challenge in this case that it hasn't been applied in those

02:23 - 28.134 situations.

02:23 - 33.074 And did I did I answer all your questions I'm sorry there were a few.

02:23 - 35.564 Counsel I think I think mr

02:23 - 37.034 Scott made the point

02:23 - 38.244 that.

02:23 - 42.134 And I think he recognized some things that your statutory duty that he says that his

02:23 - 44.114 clients are arguing that you are shirking.

02:23 - 48.344 Is the statutory duty after he withdraw his happen.

02:23 - 51.734 So after the labor negotiations went through and

02:23 - 52.214 the

02:23 - 54.614 district decides to go through with the negotiation

02:23 - 55.884 and actually

02:23 - 58.094 engages in the outsourcing.

02:23 - 01.514 That's when the statute requires.

02:24 - 05.084 Appeasers to make this assessment and

02:24 - 07.214 and impose a withdrawal liability right.

02:24 - 09.584 I think what mr Scott is arguing

02:24 - 13.304 by by the fact that you have issued some blanket resolution.

02:24 - 15.704 That says you're not

02:24 - 16.994 doing that.

02:24 - 18.734 Until.

02:24 - 24.134 A you've studied whether the statutory language actually applies to

02:24 - 25.694 outsourcing at all.

02:24 - 28.154 And b

02:24 - 30.344 till the general assembly does something.

02:24 - 32.294 He's saying that.

02:24 - 34.134 The.

02:24 - 36.224 When this outsourcing comes

02:24 - 38.414 up or if it comes up.

02:24 - 40.254 He.

02:24 - 42.194 The school districts.

02:24 - 47.624 Are basically relying on your inaction and not including the estimated withdrawal

02:24 - 51.434 liability which the statute gives an estimated withdraw liability calculation

02:24 - 52.994 on the table.

02:24 - 56.894 For purposes of the negotiations with the labor unions.

02:24 - 59.504 Can you address that alleged.

02:24 - 00.764 Harm

02:25 - 02.264 that that you're.

02:25 - 06.104 Apparent refusal at least alleged refusal for purposes of the

02:25 - 07.784 the the standard of review here.

02:25 - 09.074 And

02:25 - 09.764 is

02:25 - 10.304 is

02:25 - 11.684 preventing.

02:25 - 14.324 The union.

02:25 - 15.804 From.

02:25 - 19.124 Forcing that number on the table.

02:25 - 24.314 I think that that's a good point because when

02:25 - 25.400 it comes to is how this injury is indirect.

02:25 - 26.744 It's ultimately

02:25 - 27.074 the

02:25 - 31.094 public school employer that psc has a dispute with that they're not.

02:25 - 34.544 Accounting for withdrawal liability during bargaining

02:25 - 35.504 and.

02:25 - 38.954 Even if that resolution didn't exist and I think it's a

02:25 - 40.304 I I understand

02:25 - 42.134 psc as arguing it's a little bit.

02:25 - 44.384 Ambiguous what it calls for

02:25 - 48.704 I do think they're ignoring quite a chunk of

02:25 - 49.184 the resolution and saying that it simply says

02:25 - 50.624 we aren't applying it.

02:25 - 52.454 But nonetheless even if

02:25 - 55.184 even if PSP serve after the fact

02:25 - 58.604 assessed a withdrawal liability I'm one of this to schools

02:25 - 02.474 that they argued have outsource pocono mountain and schick allow me

02:26 - 06.374 that wouldn't change that dispute in contract negotiations

02:26 - 10.484 whether that resolution did exist or didn't exist and whether we've assessed it in

02:26 - 11.684 one case or haven't

02:26 - 15.314 it's still going to be an argument because it's a fact determination that's made

02:26 - 18.644 after the fact how would they get how would they possibly.

02:26 - 23.654 Enter into nego vacations not having any idea what the numbers were.

02:26 - 25.794 Like for example.

02:26 - 28.214 Presumably the negotiation has to involve.

02:26 - 29.624 Some decision.

02:26 - 30.613 By

02:26 - 32.624 ps yea on whether they can.

02:26 - 35.714 Make a better offer to this district you know you want to.

02:26 - 36.614 You want to.

02:26 - 37.974 Okay district

02:26 - 40.124 you want a chalet me or whatever the other one is.

02:26 - 44.834 You want to outsource these bus drivers or these other non instructional.

02:26 - 47.684 Folks that are currently organized by US.

02:26 - 49.514 You're going to save

02:26 - 50.664 x dollars

02:26 - 51.374 but.

02:26 - 52.424 We can

02:26 - 53.864 we can do y

02:26 - 55.214 in other words that that's

02:26 - 56.334 bargaining.

02:26 - 56.954 So I

02:26 - 58.194 guess.

02:26 - 01.424 I might hearing you to suggest you want to.

02:27 - 05.084 Encourage the districts to.

02:27 - 07.094 Engage in a bad faith.

02:27 - 08.564 Practice now

02:27 - 09.864 not bargaining.

02:27 - 11.184 Well then.

02:27 - 15.224 If you're not arguing that the districts should engage.

02:27 - 17.504 In a bad faith practice

02:27 - 19.274 and refused to bargain.

02:27 - 20.784 Then how can

02:27 - 22.814 psc not have standing.

02:27 - 24.324 To at least.

02:27 - 25.454 Challenge

02:27 - 26.774 your boards.

02:27 - 30.404 Declaration that you're just not going to do this.

02:27 - 33.164 Well that

02:27 - 34.904 this calculation for.

02:27 - 35.834 Calculating

02:27 - 39.644 trial liability is hard wired into the retirement code

02:27 - 43.754 so psc a and the district can still calculate the amount

02:27 - 47.864 and discuss if it were to apply it will be this amount if it doesn't apply it will be

02:27 - 51.764 this amount when they're bargaining so they still can bargain over the term stuff

02:27 - 53.024 like try liability

02:27 - 54.044 but there is

02:27 - 56.534 no pre determination requirement in the law

02:27 - 59.924 it would be impractical for the board to have to review

02:28 - 05.084 every contract negotiation every contract proposal and there could be multiple ones

02:28 - 09.434 in all the districts across the commonwealth some of which have multiple local unions

02:28 - 10.124 within then

02:28 - 13.154 that would be a lot of contract negotiations

02:28 - 16.274 when there's no requirement in the law that the board do that

02:28 - 17.594 isn't the difference.

02:28 - 18.704 Between.

02:28 - 20.654 What you're saying is.

02:28 - 22.524 Whether.

02:28 - 25.724 The the psc I.

02:28 - 27.914 Can assert this.

02:28 - 34.244 Amount of money maybe at issue in trying to come to a resolution with the outsourcing.

02:28 - 36.554 Versus.

02:28 - 38.844 The school district.

02:28 - 40.814 Taking the position well.

02:28 - 46.124 Ps jar isn't going to ever come after that money because they're not fallen statue

02:28 - 47.244 isn't that.

02:28 - 48.944 How this makes it a direct.

02:28 - 50.624 Harm to p s Yang.

02:28 - 54.344 Why do you think they would still have to prove

02:28 - 58.064 or to get it away from speculative they would still have to show

02:28 - 01.184 that if withdrawal liability were to apply

02:29 - 05.084 that would actually change an employer's mind and I don't think that they've

02:29 - 07.754 established that and they've acknowledged that it might not

02:29 - 11.114 and so that's why I don't think that it fits the standing requirements

02:29 - 11.804 even

02:29 - 12.164 if

02:29 - 12.884 the

02:29 - 16.274 school districts are directly saying because of the board

02:29 - 20.384 and what they've said we're not going to apply it but that still as another party

02:29 - 24.194 said making a decision the school districts are making the decision well.

02:29 - 25.574 I'm sorry

02:29 - 26.694 if.

02:29 - 28.574 The difference between.

02:29 - 33.764 A school district outsourcing and a school district not outsourcing is.

02:29 - 35.444 Ten thousand dollars.

02:29 - 37.375 And.

02:29 - 38.714 The.

02:29 - 41.744 District has to consider that.

02:29 - 46.634 Fifteen thousand dollars is going to be the cost of applying

02:29 - 48.794 eighty three twenty seven point one.

02:29 - 51.074 That definitely is going to be a difference.

02:29 - 56.144 And I I mean I guess that's.

02:29 - 57.524 Thing

02:29 - 02.324 I I understand what what you're saying that this information could be helpful during

02:30 - 04.964 bargaining I do appreciate your point on

02:30 - 09.734 and your considerations on that I still think that it ignores that it's another party

02:30 - 10.754 making the decision

02:30 - 14.294 and they're bringing this declaratory judgment action against the board

02:30 - 15.554 to aid themselves in

02:30 - 17.365 different negotiations and

02:30 - 19.844 different transaction with somebody else and I

02:30 - 21.344 think that fails on standing

02:30 - 23.895 council it seems like though you could with your client could

02:30 - 25.784 resolve this whole thing.

02:30 - 28.664 By withdrawing the resolution.

02:30 - 30.614 And issuing some sort of

02:30 - 32.444 statement a policy that says.

02:30 - 34.604 We may apply the statute

02:30 - 35.784 to outsourcing.

02:30 - 39.344 Is going to be a case by case specific circumstance

02:30 - 42.554 and if you did that it would seem like the dispute would go away.

02:30 - 43.634 I have.

02:30 - 46.784 The impression even the beginning of the statue and.

02:30 - 51.044 This is where standing in substance kind of mashed together a little bit

02:30 - 55.664 the beginning of this that the resolution does direct peace or staff to perform an

02:30 - 58.694 outreach to relevant organizations to elicit input

02:30 - 01.874 and feedback into research and prepare a report.

02:31 - 03.794 My interpretation is

02:31 - 06.974 is some they they want that information for a purpose

02:31 - 09.044 not to never do something without him

02:31 - 10.694 but in the meantime the meantime that

02:31 - 16.544 in the meantime there are potentially outsourcing negotiations going on and.

02:31 - 17.934 You know.

02:31 - 19.734 Again it seems like.

02:31 - 24.224 If mr Scott and his client are not seeking the home run.

02:31 - 28.544 Which is basically a declaratory judgment in the commonwealth court that says

02:31 - 33.014 you have to apply the statue to every outsourcing everything that happens regardless

02:31 - 34.014 of facts

02:31 - 36.524 and all they're seeking is a declaration that

02:31 - 40.394 you need to decide on a case by case basis whether a particular transaction meets

02:31 - 42.464 outsource or meets the statue or not.

02:31 - 46.874 If that's what you're saying you're already doing we're fighting over nothing.

02:31 - 50.064 Right I I

02:31 - 51.434 think that if.

02:31 - 54.914 Right I think that the board is applying the law

02:31 - 58.964 to where it clearly fits I don't think the board needs to look at every single case

02:31 - 03.374 and decide whether it does or does not defy it only needs to decide if it does apply

02:32 - 07.994 so it doesn't ever need to give a negative decision if it reviews facts then decides

02:32 - 08.994 against it.

02:32 - 14.620 Resolution I thought your resolution made kind of a blanket statement.

02:32 - 23.170 Right I I appreciate your points on the resolution I I do think that the board was

02:32 - 24.700 seeking more information

02:32 - 28.810 it seems like perhaps they wanted to give some sort of guidance on the issue I I

02:32 - 29.470 think that

02:32 - 34.360 I I do want to point out that before the resolution as far as the amended petition

02:32 - 38.230 and what psc a alleges and I I don't know if there are additional facts beyond this

02:32 - 41.110 but there was actually only one case of outsourcing

02:32 - 45.610 that occurred between when the law came into

02:32 - 46.060 effect and when the resolution was passed

02:32 - 48.010 so it doesn't seem like this was

02:32 - 50.110 such a widespread an.

02:32 - 53.680 Issue but I I appreciate what you're saying on that.

02:32 - 55.690 It's widespread enough

02:32 - 56.810 that.

02:32 - 59.050 The general assembly.

02:32 - 02.650 Decided way back in twenty nine team.

02:33 - 03.760 That.

02:33 - 06.490 The law of Pennsylvania was going to be that.

02:33 - 07.940 Rather than

02:33 - 09.490 spread the cost of this.

02:33 - 12.010 All across the districts that.

02:33 - 12.989 The

02:33 - 14.110 district that was.

02:33 - 16.750 Holding onto the relevant cash.

02:33 - 18.460 Would be responsible

02:33 - 20.260 and and by virtue of.

02:33 - 21.639 Your board.

02:33 - 24.580 In two thousand and twenty one just halted in its tracks.

02:33 - 26.560 So none of this however many

02:33 - 28.960 districts are involved none of it's happened.

02:33 - 29.860 So.

02:33 - 31.310 How is that.

02:33 - 32.660 How is that.

02:33 - 34.030 Since we're here understanding

02:33 - 37.090 how is that not a bone the psc a

02:33 - 38.530 ship be allowed to pick

02:33 - 39.100 here

02:33 - 44.239 but I do think you're assuming the substance here and I I understand that's what psc

02:33 - 45.790 as saying that this law was

02:33 - 47.230 written to address

02:33 - 50.350 outsourcing but it doesn't say that anywhere in the law

02:33 - 53.710 it never says that this was designed for outsourcing.

02:33 - 58.390 Participate not participating right but that could not be outsource arsene is

02:33 - 03.040 substantively it doesn't apply I don't see that the general assembly was specifically

02:34 - 04.040 contemplating

02:34 - 07.060 outsourcing they didn't change the public school code

02:34 - 09.370 and more importantly they didn't add in

02:34 - 14.050 any pre determination requirement if psc is correct that this law was somehow

02:34 - 15.910 designed to prevent outsourcing

02:34 - 17.020 then it

02:34 - 18.160 understanding that

02:34 - 19.390 they have to bargain

02:34 - 20.851 there would be a pre-determined.

02:34 - 21.690 I'm sorry to speak

02:34 - 23.940 other I'll just shut up after this let me just say.

02:34 - 28.120 You're right it doesn't have to be else is non participating so.

02:34 - 32.560 The argument for today isn't whether or not.

02:34 - 35.620 They want to prevent outsourcing they concede

02:34 - 36.910 as I understand it.

02:34 - 37.600 That.

02:34 - 40.810 Folks can districts can decide they want to outsource this.

02:34 - 43.300 The school bus driver

02:34 - 43.900 thing

02:34 - 45.200 and.

02:34 - 45.880 You don't.

02:34 - 51.040 But they they want to get into the battle if if it makes sense for them

02:34 - 52.930 to make a better offer

02:34 - 55.720 and and by virtue of your resolution.

02:34 - 57.460 They don't have the data.

02:34 - 58.210 And

02:34 - 58.592 the

02:34 - 00.443 district doesn't have any interest

02:35 - 01.810 given your resolution.

02:35 - 03.760 In handing them the data right

02:35 - 04.970 why would the district

02:35 - 08.330 the district why would the district want to come up with these numbers for them.

02:35 - 13.630 I just struggle to see how knowledge alone without any sort of

02:35 - 14.650 a fact

02:35 - 19.570 can be a substantial interest in anything more than an academic classes to do I

02:35 - 21.700 understand your argument to be.

02:35 - 22.720 That.

02:35 - 27.370 We can say that this case is about frame working the framework of the heart.

02:35 - 32.500 And you're challenging them on standing by saying there's no casual connection

02:35 - 36.280 between the alleged harm of impairing sub-contracting negotiations.

02:35 - 39.010 And risking retirement benefits.

02:35 - 40.390 Because.

02:35 - 41.900 Your.

02:35 - 42.490 Your our

02:35 - 43.700 client.

02:35 - 45.280 Issued a resolution

02:35 - 46.960 saying we're not giving it to you.

02:35 - 51.970 I'm somewhat confused you're the barrier that's creating the harm.

02:35 - 53.680 So.

02:35 - 55.180 It's almost.

02:35 - 58.720 Share with me how how I should proceed that differently.

02:35 - 00.390 That what you're in here doing is

02:36 - 03.190 I created the harm and now I'm punishing you

02:36 - 04.750 and you don't have a right.

02:36 - 08.230 To have redress because I'm punishing you

02:36 - 09.520 because there's no injury

02:36 - 11.050 because then I'm not telling you

02:36 - 12.880 what could possibly be.

02:36 - 13.900 Bad if their show

02:36 - 16.900 or not so tell me how I'm missing the point.

02:36 - 22.510 Eight I think that I understand your points on

02:36 - 25.840 but they still are trying to use a council.

02:36 - 27.250 It's very simple.

02:36 - 28.640 Share with me.

02:36 - 30.700 Am I correct or am I wrong.

02:36 - 31.840 If I'm wrong

02:36 - 33.110 tell me.

02:36 - 34.570 What your position is

02:36 - 36.160 that proves me wrong.

02:36 - 39.880 I I think you're incorrect correct because they ultimately

02:36 - 43.810 they can frame it as they want knowledge but

02:36 - 44.320 they want knowledge for a specific purpose

02:36 - 48.490 and that's to prevent sub-contracting at bargaining I couldn't understand you they

02:36 - 49.490 want knowledge

02:36 - 50.260 and then what

02:36 - 52.630 excuse me for a specific purpose

02:36 - 54.550 they don't just want to know

02:36 - 59.680 and if the knowledge does not affect contract negotiations and if it will not affect

02:36 - 01.060 contract negotiations

02:37 - 06.160 from a standing perspective this resolution is ultimately irrelevant where deployment

02:37 - 08.470 or hearing stage you're challenging the merits.

02:37 - 11.410 The question is do they have their day in court

02:37 - 14.890 you've just conceded that they there is a issue.

02:37 - 17.380 Before this court so obviously what you

02:37 - 18.190 share with US

02:37 - 21.340 is that we should overrule the objection and give them their day in court

02:37 - 23.860 are you disagreeing with them I do disagree with that

02:37 - 26.080 they need to have a substantial indirect and

02:37 - 28.330 immediate interest in the litigation

02:37 - 29.920 with their cases all.

02:37 - 34.660 Has always been about and however they try to characterize it it's ultimately about

02:37 - 36.730 trying to prevent sub-contracting

02:37 - 37.850 well.

02:37 - 40.540 I don't know if that's necessarily fair

02:37 - 43.930 they're trying to be able to use

02:37 - 45.050 the.

02:37 - 46.220 Threat.

02:37 - 49.150 That the board is going to apply.

02:37 - 54.340 This statute to sub-contracting as part of labor negotiations.

02:37 - 56.880 I don't think it's fair to say they're trying to stop it.

02:37 - 59.320 They're certainly trying to get informed nation.

02:37 - 03.130 And again the information is not the what the what the penalty would be imposed it's

02:38 - 05.890 just cause they can calculate under that under the statute now.

02:38 - 08.320 The information is simply that the board.

02:38 - 09.740 May

02:38 - 14.710 assess this transaction as something that triggers a withdrawal liability that's the

02:38 - 18.700 information I understand mr Scott is trying to get from the commonwealth court

02:38 - 21.970 simply a declaration that your resolution is wrong

02:38 - 25.180 that it's an open question as to whether these transactions

02:38 - 26.530 would trigger liability

02:38 - 29.590 and board you can't wait till some study happens

02:38 - 33.520 you need to start looking at these transactions

02:38 - 33.970 as they come to you in assessing them and

02:38 - 37.360 make a decision as to whether impose withdrawal liability or not that's what I

02:38 - 38.380 understand is asking for

02:38 - 38.920 yeah.

02:38 - 43.450 I I think that you probably are right on that they want it as leverage

02:38 - 47.560 they want this statement as leverage but in this case the votes as

02:38 - 50.560 they brought it to cases where outsourcing has occurred.

02:38 - 54.190 Pocono mountain and shake allow me those are the only cases.

02:38 - 56.290 The board could actually assess

02:38 - 57.940 so what they could get up

02:38 - 58.540 go ahead

02:38 - 59.200 no please

02:38 - 59.620 finish.

02:39 - 03.820 What I was going to say is what they could get is a determination ultimately that

02:39 - 05.800 which all liability applies in one

02:39 - 08.170 or both of those cases hypothetically

02:39 - 10.420 and then a different local union

02:39 - 12.970 could use that against a different employer

02:39 - 14.770 to try to persuade them against

02:39 - 18.580 sub-contracting but the arguments would remain the same that board could argue these

02:39 - 19.360 facts are different

02:39 - 21.310 the pacers won't apply it

02:39 - 22.630 and vice versa

02:39 - 26.980 and so the case doesn't actually change even if the board were to apply it in one of

02:39 - 31.930 those scenarios okay I think we've heard these arguments and unless.

02:39 - 34.840 Any of the justices have further questions

02:39 - 36.520 we'll hear from mr Goldman

02:39 - 37.870 thank you thank you.

02:39 - 41.260 Only if you have something to add

02:39 - 42.380 mr Goldman

02:39 - 42.850 thank you.

02:39 - 44.390 May it please the court

02:39 - 48.370 Richard Goldman live in legal group representing the appellee Pennsylvania school

02:39 - 49.370 boards association

02:39 - 50.581 and it is an honor to be here

02:39 - 51.800 thank you.

02:39 - 54.310 Very briefly.

02:39 - 59.890 I think what's being lost and I think is clearly in our briefing and clearly in in

02:39 - 01.060 both the police briefs.

02:40 - 03.700 Is the act the issue is not that

02:40 - 04.210 it's

02:40 - 07.360 his standing and standing alone it's not the merits.

02:40 - 08.780 Most of.

02:40 - 09.970 Opposing counsel's

02:40 - 10.720 arguments

02:40 - 12.160 were on the merits

02:40 - 13.060 we have

02:40 - 15.370 a problem that we're trying to solve

02:40 - 18.310 the problem is they're picking the wrong statute.

02:40 - 20.650 Because the statute doesn't apply

02:40 - 22.990 to anyone other than employers

02:40 - 25.480 and it only applies very specifically

02:40 - 27.940 to withdraw liability vs of the.

02:40 - 29.650 Withdrawing employer

02:40 - 31.750 and remaining employers

02:40 - 33.020 and the only

02:40 - 35.680 the only person who has standing

02:40 - 36.850 under that section.

02:40 - 38.980 Under the under all of the prior.

02:40 - 40.630 Commonwealth court was correct

02:40 - 42.160 in arguing this point.

02:40 - 43.030 Is

02:40 - 45.760 would be other employers who would argue

02:40 - 47.110 pisa should be.

02:40 - 49.960 Applying the standard we're going to be harmed

02:40 - 51.520 we are the direct harm.

02:40 - 54.400 All the employers would be directly harm

02:40 - 56.230 by withdrawing them play lawyer

02:40 - 58.090 not being charged their

02:40 - 58.600 their.

02:40 - 01.150 Their fee for withdrawing.

02:41 - 04.870 Anybody else who's suing including Peters.

02:41 - 08.440 Whether it be students parents taxpayers

02:41 - 10.210 could all make the same arguments

02:41 - 13.360 there there declare correct declaration not

02:41 - 13.882 to

02:41 - 14.710 to

02:41 - 18.040 go after withdrawal liability in such circumstances.

02:41 - 19.630 Affects me

02:41 - 21.040 it affects me in.

02:41 - 23.470 As a tax payer because.

02:41 - 24.905 You know.

02:41 - 29.410 Because they're my district is going to have higher costs because of

02:41 - 31.936 you're not taking the withdrawal liability from the other.

02:41 - 33.820 Suggesting p s a's.

02:41 - 37.360 P s e a's interest is as remote.

02:41 - 41.980 As a random taxpayer yeah they aren't that it's entirely his remote.

02:41 - 44.470 That's it seems to me to be.

02:41 - 48.370 A bit off because.

02:41 - 49.700 The.

02:41 - 50.950 The idea.

02:41 - 53.770 That you're suggesting I think is that.

02:41 - 54.850 The

02:41 - 56.680 the undifferentiated

02:41 - 57.250 and.

02:41 - 59.500 Infinitesimally small.

02:41 - 02.320 Interest of a single taxpayer be that a.

02:42 - 03.340 Person

02:42 - 05.440 or a one school district.

02:42 - 08.140 Somewhere around this commonwealth.

02:42 - 11.290 I would would would impel them

02:42 - 12.560 to come to court.

02:42 - 14.290 To challenge.

02:42 - 15.890 Peas herbs.

02:42 - 17.740 Resolution here.

02:42 - 19.060 Whereas

02:42 - 20.710 here we have a plaintiff.

02:42 - 22.750 Who who wants.

02:42 - 25.840 The information that the statue.

02:42 - 27.514 Compels

02:42 - 29.364 and that the board

02:42 - 31.134 has refused.

02:42 - 37.044 To allow to be generated so why isn't the latter are more direct than just some

02:42 - 38.724 single random.

02:42 - 39.564 First

02:42 - 41.574 person or district the idea

02:42 - 42.694 for.

02:42 - 46.254 It's substantial direct and immediate is the standard first.

02:42 - 47.904 With standard for standing.

02:42 - 49.484 That's that's the first thing

02:42 - 50.754 and it is no

02:42 - 53.664 it is no more substantial meaning substantive

02:42 - 56.664 no more direct and no more immediate.

02:42 - 59.814 Than than it would be the psc a's claim

02:42 - 03.684 would be any more immediate or more substantial or more direct

02:43 - 08.244 than a taxpayer or parent organization Asian

02:43 - 08.424 that's upset because they don't want their.

02:43 - 11.634 Their their teachers be contracted out where their.

02:43 - 13.884 Or their staff being contracted out.

02:43 - 17.664 It's all perspective to begin with first of all because it's not

02:43 - 18.834 a sure thing.

02:43 - 21.084 It's entirely speculative.

02:43 - 22.944 On everyone's part

02:43 - 24.324 including psc as

02:43 - 26.274 to argue that this is a harm

02:43 - 29.184 because it is speculative because it's contingent upon

02:43 - 32.034 them not getting information from the employer

02:43 - 35.634 or not getting a bargaining position from the employer which by the way they have

02:43 - 37.104 other avenues to address

02:43 - 38.574 under under statute

02:43 - 39.414 whether it be

02:43 - 42.144 via arbitration under a collective bargaining agreement

02:43 - 44.244 whether it be under appeal rb

02:43 - 45.834 action administrative action

02:43 - 49.014 to argue though all of the points relating to bargaining.

02:43 - 52.044 And whether they're getting a fair shake in bargaining

02:43 - 54.414 or all visa via the employer

02:43 - 57.084 and there's an Avenue for all of them in the statute.

02:43 - 58.434 Let me finish.

02:43 - 59.514 This week also

02:43 - 00.894 let me ask you this way so.

02:44 - 03.094 Here.

02:44 - 05.454 You have a scenario where there's a

02:44 - 06.634 there's two districts

02:44 - 08.244 whether it's bus drivers.

02:44 - 09.834 Aides whatever they are

02:44 - 14.364 and currently I I assume they're organized by.

02:44 - 17.844 One a psc as well I don't assume I read it in the papers

02:44 - 19.284 there organise okay so.

02:44 - 22.794 Now the district comes forward as it as it can do.

02:44 - 23.934 And

02:44 - 26.574 one of the boards that is

02:44 - 29.154 within your client association

02:44 - 30.834 and say you know what we

02:44 - 31.984 were going to.

02:44 - 32.544 Do.

02:44 - 34.224 We're going to outsource this

02:44 - 35.124 and

02:44 - 35.934 and.

02:44 - 38.214 And and that board.

02:44 - 39.694 That.

02:44 - 40.974 Your client.

02:44 - 42.514 Associates

02:44 - 43.104 and

02:44 - 45.114 has the relevant information

02:44 - 45.684 and and

02:44 - 46.954 and now.

02:44 - 48.244 The.

02:44 - 50.364 Psc a wants to come to the table

02:44 - 51.894 and they want to say you know.

02:44 - 52.704 We want.

02:44 - 55.374 We want to have a chance to make a better offer

02:44 - 57.684 or show you why you can save money

02:44 - 59.034 or get better service

02:44 - 00.154 or both.

02:45 - 02.814 We don't have that we don't have the data.

02:45 - 03.744 And

02:45 - 05.064 they don't have the data

02:45 - 07.974 because peas are despite the statute.

02:45 - 09.304 Refuses

02:45 - 13.434 to generate the determination that the statue compels whereas like this you're you're

02:45 - 14.574 missing a lot first of all.

02:45 - 18.684 First of all the district school district involved in that negotiation would have a

02:45 - 21.444 duty under law to provide whatever information they have

02:45 - 23.124 and they'd have a duty to provide

02:45 - 26.724 the underlying information to arrive at calculations

02:45 - 29.904 so they could they would have a duty to provide the union with raw data.

02:45 - 32.274 That that would be available available to them.

02:45 - 36.414 The statute itself creates the mechanism for calculating.

02:45 - 38.334 The the withdraw the liability

02:45 - 40.674 and and commonwealth court noted that.

02:45 - 42.054 Fairly

02:45 - 43.734 a couple of times in fact.

02:45 - 45.174 The reality is

02:45 - 49.944 the parties already have the information in the calculations this is not complicated

02:45 - 52.974 there is a section in in in eighty three twenty seven point one

02:45 - 53.694 which says

02:45 - 55.134 here's how you calculate.

02:45 - 59.454 So both sides opening the law the statute could read it say.