00:00 - Hello and welcome to the Commonwealth Court

00:02 - of Pennsylvania's October en banc session.

00:05 - My name is Tiffany Morris and this is my colleague Sam Ickes.

00:09 - And we are staff attorneys

00:10 - in the Commonwealth Court Office of Chief Legal Counsel.

00:14 - The term en banc is French for on the bench and refers

00:18 - to a special procedure where a panel of seven.

00:20 - Commonwealth Court judges

00:22 - hears argument on cases that the court believes

00:24 - implicate complex or important legal issues.

00:27 - Our first case involves a consultation challenge

00:30 - under the Uniformity Clause of the Pennsylvania Constitution

00:33 - to the city of Pittsburgh's

00:35 - nonresident sports facility usage fee.

00:39 - This challenge was initiated by professional athletes

00:41 - who competed in Pittsburgh

00:43 - as members of the city's professional clubs

00:45 - or as members of visiting clubs and their unions.

00:49 - The facility fee requires nonresident

00:51 - athletes and entertainers who use a publicly funded facility,

00:55 - such as a stadium

00:56 - for a professional baseball game or music concert to pay

00:59 - a fee equal to 3% of taxable earned income

01:02 - allocable to the days worked in a publicly funded facility.

01:07 - The uniformity

01:08 - clause provides that all taxes shall be uniform

01:11 - upon the same class of subjects within the territorial limits

01:15 - of the authority

01:15 - living in the tax, and shall be levied

01:17 - and collected under general laws.

01:20 - The trial court ruled

01:21 - that the facility fee violates the uniform rate clause

01:24 - because it imposes a tax only on nonresidents.

01:29 - On appeal, the city maintains that the trial court aired

01:32 - an argues that the facility fee does not violate

01:35 - the uniformity clause

01:36 - because as part of the overall tax scheme,

01:39 - the tax burden on all athletes

01:41 - and entertainers performing at the city's

01:43 - professional facilities is identical, which is 3%.

01:48 - The city maintains that it does not matter to

01:50 - which entity such as the city or the school district.

01:53 - Those taxes or fees are paid.

01:55 - Rather, it is the effect of the facility fee.

01:58 - That is, the amount of money paid that matters.

02:02 - The players and their unions argue

02:03 - that the uniformity clause prohibits

02:05 - the singling out of nonresidents for greater tax burdens.

02:09 - They argue that this is exactly what the facility fee does

02:12 - and therefore ask the court

02:14 - to affirm the trial court's decision.

02:16 - With that, let's listen to the argument.

02:26 - Good morning.

02:27 - Your honors and may have pleased the court.

02:29 - My name is Yazz Ashrawi with Ross Brown. Todd

02:32 - here on behalf of the appellant, the city of Pittsburgh.

02:35 - Did you wish to reserve any rebuttal time?

02:37 - Yes, Your Honor, I'd like to reserve 3 minutes for rebuttal.

02:40 - You've got it.

02:41 - This case, of course, is about the constitutionality

02:44 - of the city of Pittsburgh facility fee, which imposes a 3%

02:48 - income tax burden on nonresident athletes and entertainers

02:53 - who get income from the performances

02:55 - at the city's publicly funded facilities.

02:59 - What this facility fee did

03:01 - was recognize the tax burden on the same class of individuals.

03:04 - That class being professional athletes and entertainers

03:08 - who make their money

03:09 - through performances at these stadiums and facilities

03:13 - because of that facility fee.

03:15 - Both resident and nonresident athletes and entertainers

03:19 - now pay the same income tax rate

03:23 - on the same activities performed

03:26 - at the same facilities in the same city.

03:30 - Mr. Ezrahi I guess just a fundamental question here.

03:33 - It's called a facilities fee, but that's really a misnomer.

03:37 - We all agree this is a tax, right?

03:39 - We do.

03:40 - Your Honor, it is a it is an earned income tax of 3%

03:45 - to. I have one question for you.

03:46 - And when you're deciding how you're going to apply the tax,

03:50 - the ordinance says it's going to be on bonuses, commissions,

03:54 - all all of this other type of revenue.

03:58 - But the trial court noted that

03:59 - what you're doing is taking 3% of game checks.

04:03 - Is everything wrote into a game check?

04:05 - Do you have and if not, do you feel

04:08 - that under this ordinance you have the right to go in

04:10 - to audit the the players or the players

04:14 - unions to see what their bonuses and commissions are?

04:19 - I'll begin by answering your your latter question,

04:22 - Your Honor.

04:23 - I think under the ordinance

04:24 - there is audit authority, just like

04:26 - there would be with any sort of earned income tax with respect

04:30 - to how those taxes are, are allocated or apportioned.

04:36 - It really comes down obviously to the sport.

04:39 - Either the games played

04:40 - and you take the total compensation

04:42 - or total earned income for hockey players and baseball

04:45 - for hockey players and baseball players for the games played.

04:48 - And then you determine how many of those games were played

04:52 - in one of the city's facilities versus

04:54 - how many of those games played outside.

04:56 - So it is the total earned income package, just like any.

05:00 - What about football players who get or the baseball players

05:03 - or hockey players, they all may get bonuses

05:05 - and commissions. I'm very confused

05:07 - by how the ordinance written really, because

05:11 - as the trial court said, you take it off a game check

05:14 - that's usually not inclusive of bonuses and commissions.

05:18 - So how did

05:19 - how did the city think this was going to be implemented?

05:23 - Sure, Your Honor.

05:26 - The taxes implemented on all earned income,

05:29 - just like the cities.

05:31 - What I would call traditional earned income tax.

05:33 - So it is the total compensation package,

05:35 - which includes wages and bonuses.

05:37 - We do not believe the statute, the facility fee ordinance

05:41 - as written strictly relates to a game check.

05:44 - Of course, these athletes. So have you.

05:46 - I'm sorry. Excuse me.

05:47 - Have you already now tried in the past?

05:50 - Tried to audit these players or the unions

05:52 - to see what the bonuses and commissions.

05:54 - In other words,

05:56 - this really isn't

05:58 - even a facility fee or tax.

06:01 - This is a tax on all revenue earned by these

06:06 - players or entertainers, giving the city

06:09 - the right to go in and audit books for every single penny

06:13 - or dollar that they make by way of any type of revenue.

06:18 - Your Honor, it the the definition of the wages

06:22 - or earned income that is taxed under the facility fee,

06:26 - as the appellate

06:27 - have stated in their brief, is virtually identical

06:30 - to the definition of earned income

06:32 - for any other type of taxpayer.

06:34 - So just like the city would have.

06:36 - I know.

06:37 - But you call this you call the ordinance a faceless re fee.

06:41 - But then you disagree with judge.

06:43 - Just agreed with Judge Logic. It's a tax.

06:46 - It is, Your Honor.

06:47 - It is a 3% earned income tax.

06:49 - And just like the city would have. So it's not.

06:52 - But you're missing my point.

06:53 - I think my point is that

06:55 - you implement it under the guise that it was a facility fee.

06:59 - You pay this for use of the facility,

07:01 - bonuses, commissions none of them have.

07:04 - What do they have to do with a facility fee that you're

07:08 - now saying is a tax imposed on all of this revenue?

07:11 - Sure.

07:11 - Well well, the the language in the in the ordinance

07:15 - certainly reads just like an earned income tax.

07:19 - It is an earned income tax, 3%.

07:22 - And what this what this ordinance did is

07:26 - it brought parity to the previously

07:28 - disparate treatment of resident athletes and entertainers

07:33 - versus nonresident athletes and entertainers.

07:35 - Okay, Mr. IZRAEL, I want to get on that.

07:37 - I have a hypothetical for you with the resident athlete

07:40 - entertainers, nonresident athlete entertainers.

07:42 - Okay.

07:43 - And this may be me trying to speak

07:45 - something in the universe, I hope,

07:47 - but let's presume that the Steelers

07:49 - turn their season around and they get the number one seed.

07:52 - Okay.

07:53 - And for purposes of this hypothetical,

07:56 - Kenny Pickett resides in the city of Pittsburgh.

07:59 - So in the AFC Championship, they vanquish

08:02 - like they did this past week.

08:04 - The Baltimore Ravens.

08:05 - Kenny Pickett does not pay this tax.

08:07 - Correct. Because he lives in the city.

08:10 - Kenny Pickett does not pay a 3% income tax.

08:14 - It separate the park.

08:15 - He doesn't pay this tax. Correct. Lamar

08:18 - Jackson.

08:18 - Jackson does pay the tax.

08:20 - That's correct. Does John Harbaugh pay the tax?

08:23 - John Harbaugh does pay the tax under the entertainer.

08:26 - He's a practice.

08:27 - The the any any team personnel including coaches,

08:31 - trainers, etc.

08:33 - Do are subject doctors the ball boys, everyone.

08:36 - Correct.

08:36 - Because they earn income in the city at the stadium.

08:39 - So the following week is a by the next week

08:42 - the Steelers host the chiefs for the AFC championship game

08:46 - in the interim.

08:47 - Kenny and his lovely wife

08:49 - moved to Gibson it like they often do.

08:51 - So now Kenny pays the tax.

08:54 - Yes. Okay, Peggy, we pay the tax because he resides outside

08:57 - of the city.

08:57 - And of course,

08:58 - Patrick Ma homes and Andy Reid pay the tax as well.

09:01 - Correct. Okay.

09:02 - Now, Taylor Swift comes in for the

09:06 - for the game to see Travis play.

09:09 - She decides to do a concert,

09:10 - but she does the concert at the Hard Rock.

09:13 - Does she pay the tax?

09:14 - If the Hard Rock was a publicly funded, it is not,

09:17 - then she would not pay the tax.

09:19 - But if she plays at PG Arena, she pays the tab.

09:22 - That's correct.

09:22 - On the millions of dollars.

09:24 - Now, how is this uniform?

09:26 - It's uniform.

09:28 - Your Honor, when you look at the class of taxpayers,

09:31 - there is a tremendous discretion given to the local

09:35 - taxing authority to identify different classes of taxpayers.

09:39 - The class of taxpayers.

09:41 - At issue in

09:42 - this case are professional athletes and entertainers.

09:45 - That class, as a as a separate taxing taxpayer class,

09:51 - it has has not been successfully challenged.

09:53 - There are various practical and local legislative reasons

09:58 - to have a separate class

09:59 - for professional athletes and entertainers.

10:02 - When you look at that class, when those individuals

10:06 - make money, earn income in the city of Pittsburgh.

10:10 - This.

10:11 - But but it's not though but it's not because you admitted

10:14 - Taylor plays her concert at the Hard Rock.

10:17 - It's a private facility.

10:19 - She doesn't pay the tax. Correct.

10:21 - She would pay a 1% earned income

10:24 - tax under the city's other under the traditional earn.

10:28 - So the hook is using a publicly financed facility?

10:31 - That's correct, Your Honor.

10:32 - And at the end of the day, your honors

10:36 - taxation

10:37 - is a complex web of various regulations.

10:40 - The Supreme Court of this state,

10:42 - the United States Supreme Court, has articulated over and over

10:45 - there is never going to be perfect equality.

10:48 - There is never going to be perfect uniformity in rough

10:51 - justice or rough equality is enough.

10:55 - Yes. Yes. Along those lines.

10:57 - Can you address the trial court, judge Ward's

11:00 - findings and holdings that the 2% school tax is levied

11:03 - by the you're saying nonresidents

11:05 - and residents are being taxed the same.

11:07 - Just point out the 2% school taxes

11:09 - levied by the school board, not the city.

11:11 - And this directly, directly funds the schools.

11:14 - Where is revenue from?

11:15 - The facility fee is paid into the general fund.

11:17 - Defendant cannot find uniformity where a separate entity taxes

11:21 - residents for a separate purpose.

11:23 - Well, athletes pay a 1% tax on their income.

11:26 - Other Pennsylvania

11:27 - athletes pay 3% on their income due to the facility.

11:31 - There's no permissible or rational basis.

11:34 - Absolutely, Your Honor.

11:35 - First and foremost, just to be clear, resident

11:38 - athletes, entertainers pay a 3% income tax.

11:41 - If you look on the

11:42 - city's website and if you look at the tax services

11:46 - that are provided, when the resident.

11:48 - F athletes and entertainers

11:49 - submit their income tax, it is one form.

11:52 - It is a 3% earned income tax.

11:54 - Allocated a portion to the school district.

11:56 - Is the city surrendering

11:58 - 2% of this facility's fee to the school district?

12:01 - They are not.

12:01 - But the school district,

12:03 - the collection of that 2%,

12:04 - a portion of that goes back to the city

12:07 - and the Supreme Court in the city of Share.

12:09 - In case the City of Sharing, which the trial court did

12:12 - not address, addressed this point head on, Your Honor.

12:15 - There there was a ten mill tax

12:18 - on both residents and nonresidents.

12:22 - The nonresidents, however, brought a challenge to that tax

12:25 - under the same premises that this tax

12:28 - is being challenged here, that half of the residents

12:31 - tax revenue is going

12:33 - to the local school district, five mills and five mills,

12:37 - while all ten mills of the nonresidents

12:40 - was going to the General Revenue Fund of the city of Sharing.

12:44 - What the court said was that any

12:47 - two political subdivisions that impose a tax

12:50 - on the same income may impose different rates

12:54 - so long as the total tax burden is equal is uniform.

12:59 - So the principle here is clear.

13:01 - It is

13:03 - constitutionally insignificant

13:05 - where your top tax dollar ends up.

13:09 - Did you discuss that in your brief?

13:11 - We did, Your Honor.

13:12 - Did we did it your reply brief.

13:14 - Maybe it was in the original brief.

13:18 - And I will cite you the page number here.

13:23 - Is it Minnich you're talking about?

13:25 - Yes. Forgive me.

13:26 - I may have

13:28 - mispronounced it. Yes.

13:29 - Munish v v the city of Sherman.

13:32 - The same exact situation happened there.

13:34 - The total tax burden on both nonresidents and residents

13:38 - was ten mills equal, just like the total

13:41 - tax burden on earned income is here and there.

13:45 - Just like here,

13:46 - there was a portion of that tax directed to the school district

13:50 - that was OC as this Supreme Court held

13:52 - the fray case out of the Supreme Court of Maryland is also

13:56 - instructive on this.

13:58 - There, just like here,

13:59 - there was what was described as a special nonresident tax.

14:03 - That special nonresident tax was imposed

14:06 - for the sole reason to equalize the previously disparate

14:11 - treatment of residents and nonresidents.

14:15 - That special nonresident

14:18 - tax was equal to the county tax that Maryland residents paid

14:23 - that nonresidents did not pay.

14:26 - That's analogous to the situation here,

14:28 - where nonresidents don't pay the school district tax

14:31 - and the nonresidents there who, by the way,

14:34 - neither worked or did not work in Maryland,

14:38 - simply derived income in the state

14:42 - lost large the same challenges.

14:45 - And the court there upheld the tax

14:48 - because it equalized the overall tax burden.

14:51 - They said it is of no consequence

14:54 - that a portion of the total tax burden

14:58 - for the residents goes to the counties

15:00 - versus the nonresidents going to the state.

15:02 - Just like the situation here

15:04 - and this equalization principle has been upheld in

15:07 - can I go back to Minnich because I wanted o c over.

15:11 - Never mind. I'll get you one.

15:13 - Oh, I am over.

15:14 - Sorry, Your Honor.

15:15 - Yes, I'll be happy to answer the question on rebuttal.

15:17 - Thank you.

15:17 - Thank you very much.

15:25 - Good morning. And may it please the court.

15:26 - Ryan McManus, on behalf of the Players.

15:28 - Associations and the individual plaintiffs,

15:31 - will you be sharing time?

15:32 - Are you arguing alone?

15:34 - Okay. Alone. Thank you. Thank you.

15:37 - The city's attempt to salvage its special tax

15:40 - on nonresident professional athletes

15:43 - rests entirely on a theory that this tax

15:45 - is simply intended to equalize tax burdens.

15:49 - There's no constitutional violation, the city claims,

15:52 - because although only nonresident

15:54 - professional athletes and others who use these stadiums pay

15:57 - the 3% facility fee, residents of Pittsburgh

16:01 - pay a 1% earned income tax and a 2% school district tax.

16:06 - To paraphrase the US Supreme Court, the city's math is fine,

16:11 - but the example compares apples to oranges by arguing

16:14 - that the facility fee simply equalizes tax burdens

16:18 - and equalizes the school district tax that residents pay.

16:21 - The city is ignoring entirely that the school district tax

16:25 - that residents pay goes to fund local schools

16:29 - that residents enjoy.

16:30 - And in fact, the city is prohibited by law

16:33 - from imposing school district taxes on nonresidents.

16:37 - In other words, the city's defense

16:40 - of its facility fee seems to be predicated

16:45 - on the idea that it is

16:45 - attempting an end run around state law.

16:49 - Well, why does it matter where the money goes

16:52 - that a tax is a tax is a tax?

16:56 - And when the athletes come in,

17:00 - certainly they are able

17:03 - to have the

17:06 - the benefits of an educate population.

17:10 - They have the services.

17:12 - There's additional services that are needed.

17:15 - Taxpayers are helping to fund the the facilities

17:19 - that they're using to be able to to make their money.

17:23 - And their player next to them

17:25 - who lives in the city is paying those taxes.

17:29 - So why isn't it an equalization?

17:31 - Why does it matter where the money goes?

17:34 - It matters for several reasons, Your Honor.

17:35 - First of all,

17:36 - it is two distinct taxes that residents are paying.

17:40 - It's an earned income tax that goes to the city's

17:41 - general fund, and it is a school district tax,

17:44 - 7/8 of which go to fund the school districts.

17:47 - And it's not just that

17:49 - the funding ends up in different places, it's also the fact

17:53 - that the city is, by law prohibited from imposing

17:56 - any school district taxes on residents.

17:58 - So what they say they are equalizing out

18:01 - is, in fact, a tax they can't impose on residents.

18:04 - And I want to point this court to the decision

18:06 - of the Pennsylvania Supreme Court in Daniel, Indiana.

18:09 - Look, the Supreme Court not only rejected

18:13 - a distinction between residents and nonresidents,

18:16 - but it also rejected the very argument

18:19 - that the city is attempting to make here.

18:21 - And Danny, look, the city of Johnstown

18:22 - imposed a $10 occupation tax on nonresidents alone

18:27 - and the city said, well, there's no constitutional violation

18:30 - because residents pay a $10 per

18:33 - capita tax, so they pay the same amount.

18:36 - The Pennsylvania Supreme Court

18:37 - said, hold on, there's a problem here.

18:39 - You're either imposing a special tax on nonresidents,

18:43 - which you can't do, or you're attempting

18:46 - to impose a per capita tax on nonresidents,

18:50 - which is prohibited by law.

18:52 - So either way, you can't impose this $10 tax.

18:56 - How do you distinguish millage, which he was so in millage?

19:01 - The situation was you had a uniform tax

19:05 - and a uniform rate

19:07 - that applied to residents and nonresidents alike.

19:11 - You also had credits

19:13 - that were equally available to residents and nonresidents.

19:16 - So the law at issue drew

19:19 - no distinctions between residents and nonresidents.

19:22 - The issue was this residents of the law

19:26 - also allowed everyone to claim a credit

19:29 - for taxes paid to another political subdivision.

19:32 - So residents of the City of Sharon

19:35 - paid a five mill school

19:36 - district tax and they could claim a credit

19:38 - for that five mill school district tax.

19:40 - The plaintiffs who were challenging this tax

19:42 - regime paid no school district tax in their place of residence.

19:46 - The difference was their circumstances.

19:48 - Those who paid another tax could claim a credit.

19:50 - Those who hadn't paid another tax couldn't claim it credit.

19:53 - It's the same as though a resident of Florida

19:55 - or was attempting to claim a credit

19:58 - for Pennsylvania income taxes paid for.

20:01 - They didn't pay any state income taxes in Florida.

20:03 - They don't get to claim a credit here.

20:05 - So in then there is no distinction by law

20:09 - between between the residents and nonresidents.

20:12 - It was just the distinction based

20:13 - on the personal circumstances of those taxpayers.

20:16 - That's very different from what you have here.

20:18 - You have a law that is targeting nonresidents

20:20 - and just like the analog, it's one or the other either.

20:23 - This is a special law that taxes nonresidents

20:26 - which is impermissible, or it's an impermissible attempt

20:30 - to impose school district taxes on nonresidents.

20:33 - And I want to point out this isn't just problematic,

20:36 - except if they're not sending it

20:38 - to the school district, why does it

20:41 - why is it an unconstitutional

20:44 - school district tax?

20:45 - Well, it's

20:46 - an unconsciously school district tax

20:48 - because that's the burden on residents

20:51 - that the city claims it's offsetting.

20:53 - It says we're not treating nonresidents any different.

20:55 - Our residents have to pay 3%.

20:57 - That's true.

20:57 - But the residents are paying

20:59 - 2% of that 3% in school district tax.

21:02 - So that's the apples and oranges point here.

21:05 - You can't impose that school district tax. I'm not raising.

21:07 - So they're not offsetting.

21:09 - They are both apples.

21:11 - And it's not just a problem under Pennsylvania law,

21:15 - by singling out nonresidents

21:18 - and imposing a greater tax burden on them,

21:20 - the city is also violating the privileges and immunities

21:22 - clause and commerce clause of the federal constitution.

21:25 - And I want to be clear that laws that discriminate

21:28 - against nonresidents on their face, as this law

21:31 - indisputably does, are subject to exacting scrutiny.

21:35 - Under the U.S.

21:36 - Constitution, the city bears the burden of justifying the law

21:40 - under the Commerce Clause.

21:42 - The Supreme.

21:42 - Court has said that laws that discriminate on their face

21:46 - against non residents are virtually per se invalid.

21:50 - In Annenberg, the Pennsylvania Supreme Court

21:53 - acknowledged that it was an extraordinarily heavy burden

21:56 - to overcome that invalidity.

21:58 - And then how do you distinguish the Maryland court

22:02 - decision in?

22:03 - I'm not sure I'm going to pronounce it right,

22:05 - but fry it right.

22:06 - Yes, Your Honor.

22:07 - So Fray involves a very narrow exception.

22:10 - One of the only situations

22:13 - in which the US Supreme Court has upheld taxes

22:16 - that discriminate against non residents.

22:18 - That exception applies in the following circumstances

22:22 - where resident s alone

22:24 - bear a tax burden that funds services

22:28 - that are enjoyed by non residents and residents alike.

22:33 - The US Supreme Court has said, well, in those circumstances

22:36 - you can impose a complementary or compensatory

22:40 - tax on nonresidents to equalize the tax burdens.

22:44 - But this was 1%.

22:46 - If the city of Pittsburgh's tax was

22:48 - 1% on the athletes, you would have no problem.

22:51 - You said no objection to paying the 1% earned income tax

22:55 - that residents of Pittsburgh, it's only the 2%, that it's

22:58 - the additional 2% burden that they are being taxed with,

23:02 - that residents aren't taxed

23:03 - with that unearned income basis that they object to.

23:05 - And not only that, is it a distinction

23:07 - between residents and nonresidents?

23:09 - It's also a distinction between athletes and others

23:11 - who use the stadium and everybody else.

23:13 - So can we cure the unconstitutionality?

23:16 - This act, as you said, by severing 2%

23:19 - off that tax, you could cure it by 72%.

23:23 - In other words, by striking down so much of the tax as applies

23:27 - in excess of 1%.

23:28 - And in fact,

23:29 - I don't think the court needs to look far for that remedy.

23:32 - What the statute that authorized the facility fee says

23:36 - is that if this act or any part of is found unconstitutional,

23:40 - the remedy is that athletes who are subject to the facility

23:44 - fee will become subject to any earned income tax

23:47 - they otherwise would have been subject to.

23:49 - So in other words,

23:50 - if the facility fee is stricken, this court affirms

23:53 - the decision below.

23:54 - Athletes and entertainers who use these stadiums

23:56 - will be subject to a 1% earned income tax.

23:59 - Just like all residents of Pittsburgh are self-executing.

24:02 - Exactly.

24:03 - And just like and just like all other nonresidents

24:06 - who come to Pittsburgh to work are subjected to that 1% tax.

24:10 - That is the appropriate severance remedy here.

24:12 - I think they also suggested that the city suggests

24:16 - that if you strike nonresident

24:20 - from the from this, that it could then deem to be

24:24 - constitutional if it's otherwise unconstitutional.

24:27 - Could you address that? Sure.

24:28 - That that is the city's

24:30 - creative severance argument, that this court

24:32 - should sever the statute by striking the word nonresident

24:36 - and thereby having the facility fee apply,

24:39 - not just to nonresident athletes who come to Pittsburgh,

24:42 - but all resident athletes as well.

24:45 - This argument is, is flawed in multiple respects.

24:49 - First and foremost,

24:50 - it wouldn't cure the unconstitutional

24:53 - classifications in the facility fee.

24:55 - It would address only the resident

24:57 - nonresident distinction.

24:58 - It would not address the other impermissible classification

25:02 - that this law makes

25:03 - between professional athletes on the one hand,

25:06 - and all other non residents

25:07 - who come to Pittsburgh to work on the other hand.

25:09 - That's a distinction between and among different wage earners

25:14 - that the Pennsylvania.

25:14 - Supreme Court has consistently rejected wage income,

25:18 - which is what this tax is imposed on,

25:20 - has consistently been treated as a single class

25:23 - by the Pennsylvania Supreme Court and distinctions

25:27 - among wage income based on occupation

25:30 - have consistently been struck down.

25:32 - That's why the Pennsylvania Supreme Court struck down

25:34 - a graduated income tax in the Kelley case.

25:36 - That's why

25:37 - it struck down the personal income tax in the A mid on case.

25:40 - So that distinction between athletes and everybody else

25:44 - isn't cured by the city severance remedy at all.

25:47 - That's problem number one.

25:49 - In addition, another issue that's not cured

25:51 - is, as you've heard this morning,

25:52 - the city concedes now that the 3% facility fee is a tax.

25:56 - It's not a fee.

25:58 - State law prohibits Pittsburgh from imposing

26:01 - a tax on wages of more than 1%.

26:04 - So it's conceding that this is in violation of state law.

26:07 - The severance remedy doesn't doesn't fix that at all.

26:10 - In fact, it expands the tax.

26:11 - Has it applied to a new class of of of individuals?

26:15 - The second reason

26:16 - this court should reject the city's severance argument is

26:20 - what Judge Roderick raised, which is the proper remedy

26:23 - for any unconstitutionality here is specified in the Facility.

26:27 - Fee Act.

26:28 - What the legislature intended

26:30 - is that if the act is unconstitutional

26:32 - or its application is unconstitutional,

26:34 - you should subject athletes

26:36 - to the same 1% tax burden that everyone else pays.

26:39 - What you shouldn't do,

26:40 - what the city is asking you to do is take this tax

26:43 - and expand it to a class that neither

26:47 - the legislature authorized nor the city ever intended.

26:51 - That would be an exercise of legislative power

26:53 - by this court to take a tax and apply it

26:56 - to classes of taxpayers that were never intended.

26:59 - That's what the Pennsylvania Supreme Court

27:02 - rejected in the Salisbury case that the trial court relied on.

27:05 - There are multiple legislative determinations involved

27:09 - in doing that, and I'll point to just one as an example.

27:12 - If this court were to sever the facility fee tax

27:16 - by expanding it

27:18 - and having it apply to resident athletes as well,

27:22 - all of the taxes that resident athletes pay on their income,

27:26 - all 3% would go to the city's general fund.

27:30 - Currently, two thirds of what the resident athletes pay

27:34 - is school district tax, and 7/8 of that

27:36 - goes to the school district.

27:38 - So if you were to sever the statute in the way

27:40 - that the city suggests,

27:41 - you would be shifting all of that income

27:43 - from the school districts to the city's general fund.

27:46 - There's no indication that the legislature

27:47 - would have intended that result,

27:49 - and that's not a decision

27:50 - I submit, that the court should make on its own.

27:53 - It's a quintessential legislative determination.

27:56 - In addition, another problem with the city severance argument

28:00 - is that it would in fact increase the tax burden

28:04 - for certain residents, increase it beyond 3%.

28:07 - And I'll give an example.

28:09 - A resident of Pittsburgh who who plays

28:13 - professional sports and practices

28:14 - outside of Pittsburgh,

28:15 - take, for example, a member of the Penguins

28:18 - who practices in Cranbury Township.

28:20 - Right now, that person would pay 3% total tax

28:24 - because they would be entitled to a credit against any taxes

28:28 - imposed by Cranbury Township

28:30 - for the 3% that they pay in Pittsburgh.

28:32 - So they pay 3% total.

28:34 - If, rather than paying the 3% earned income tax and school

28:37 - district tax combined,

28:39 - if that athlete were paying 3% facility fee,

28:43 - they would not be entitled to claim a credit

28:44 - against the 1% in Cranbury Township. Why?

28:47 - Because the city, despite its admissions and litigation,

28:50 - still treats this as a fee.

28:52 - It still states in its regulations

28:54 - that this is a fee and not a tax,

28:56 - and therefore it doesn't get reported

28:58 - in the local tax box on a W-2.

29:00 - And therefore, credits as a result aren't available.

29:03 - So some residents would, in fact, see their tax burden

29:06 - increased by the city's proposed severance remedy

29:10 - for another reason this court should reject it.

29:12 - And again, I want to point out,

29:15 - going back to why severance

29:16 - here doesn't cure all of the constitutional problems,

29:21 - this is not just a distinction between residents

29:23 - and nonresidents. It's

29:24 - a distinction between athletes and all other wage earners.

29:28 - That's a distinction that's been rejected in multiple contexts.

29:32 - A graduated income tax, the deductions and exemptions

29:35 - that are available under federal law, but which

29:39 - Pennsylvania Supreme Court says would violate uniformity.

29:42 - And I also want to point out that those cases, Kelly.

29:46 - A mid on, other cases that strike

29:47 - down those classifications,

29:50 - those would all come out very differently

29:52 - under a rational basis, equal protection inquiry.

29:56 - So the city has argued for great deference

29:58 - and says this is rational basis, equal protection.

30:00 - That's not quite true.

30:01 - The city's overstating the level of deference here.

30:04 - Obviously, a graduated income tax,

30:06 - which is used in many jurisdictions,

30:08 - would satisfy a rational basis and equal protection scrutiny.

30:12 - It's been struck down in Pennsylvania

30:13 - as a violation of the uniformity clause,

30:16 - the deductions and exemptions that are baked

30:17 - into the federal income tax code.

30:19 - Obviously, that satisfies

30:21 - rational basis and equal protection.

30:23 - It's been struck down in Pennsylvania

30:24 - as a violation of the uniformity clause.

30:26 - And I would just note, consider what the city's

30:29 - attempt here would open the door

30:31 - to using professions as a proxy for income.

30:35 - How long before the city or the legislature chooses

30:39 - other professions with perceived high income rates

30:42 - and imposes in practice the same type of graduated income tax

30:46 - that has been struck down as unconstitutional?

30:51 - See, my time's up for further questions.

30:56 - Thank you very much, Jonas.

31:09 - Let me first address

31:12 - the Sharon decision and the equalization principle.

31:16 - Generally, this court in 1979, in the Soma versus.

31:20 - Commonwealth case,

31:22 - decided this very issue in citing the city of Sharon.

31:27 - It said, When petitioners question the reasonableness

31:30 - of having to pay the sum of two taxes versus one or vice versa,

31:35 - they not questioning the uniformity of the tax.

31:39 - They are questioning

31:40 - the fairness within the legislative discretion.

31:44 - And that is true both for where there's two separate

31:47 - tax schemes superimposed on one another for a total tax burden

31:52 - or where there are where there is a tax scheme

31:56 - that recognizes a credit of some sort.

31:59 - Is there a credit opportunity here?

32:02 - There is, Your Honor, and I wanted to raise that point.

32:04 - That's a red herring issue.

32:06 - This is a tax.

32:07 - There is nothing in the facility fee ordinance that prohibits

32:12 - receive credit for taxes, paid nothing.

32:15 - The ordinance doesn't address credit,

32:17 - so it defers back to the state law on credit.

32:20 - So it'll show up on a player's W-2.

32:21 - It should now it is a it is an income tax.

32:24 - It is an earned income tax. Let me

32:27 - focus you on what I think is

32:30 - might be a problem with your argument.

32:33 - Not all over borough.

32:35 - It is not part of the city.

32:38 - So if a an athlete is a resident of Mt.

32:41 - Oliver Borough, he pays this tax, correct?

32:44 - That's correct.

32:45 - But he's also paying a 2% tax to the city school district

32:48 - because it's part of the school district.

32:50 - That's correct.

32:51 - So, Your Honor, this is 5% this goes back to the

32:56 - to the point that taxation is never perfect.

33:00 - It is never going to be perfectly equal

33:02 - or perfectly uniform, and it's not uniform at all.

33:05 - Here it is, Your Honor, because all all resident athletes

33:10 - in all professional athletes, entertainers now pay 3%.

33:14 - I want to.

33:15 - Well, I think you just quickly, you didn't address Denmark,

33:19 - which says you can't use resident

33:21 - as a basis for discrimination.

33:23 - But as to your point about taxes,

33:26 - don't doesn't the regulations say that you should say

33:29 - you should not be reported in the local tax box

33:32 - on the W-2 form?

33:33 - Isn't that where taxes are normally subject to a credit?

33:38 - The regulation did say that

33:40 - before the concession in the determination

33:42 - that this was a fee rather than a tax.

33:44 - So now that it is a tax, it can be reported accordingly.

33:47 - So the regulation would be changed?

33:48 - The regulation will be changed? That's correct.

33:50 - It has not been changed yet, correct.

33:52 - Your Honor, let me address the Daniel case.

33:55 - The holding in the Daniel a case related to the per

33:59 - say violation of imposed a head tax on nonresidents.

34:04 - In fact, in two subsequent Supreme Court cases,

34:08 - that was the focus in Goglia verse, The city of Allentown.

34:11 - That was decided just a year after

34:14 - the court specified and articulated what

34:16 - the holding in Danny Locke was and what it wasn't in Danny.

34:19 - Look, this court ruled that a municipality

34:21 - has no legal authority to levy a head tax against nonresidents.

34:25 - The factual distinctions in Danny

34:27 - look were patently different

34:29 - than the issues in Goglia, which related to residency

34:32 - in the city of Pittsburgh versus

34:33 - the Commonwealth of Pennsylvania.

34:38 - The court talked about that.

34:39 - They rejected an attempt to levy a head

34:41 - tax on nonresidents is a per se violation.

34:44 - To the contrary

34:44 - of the appellant's argument there,

34:46 - the court did not conclude that residency

34:48 - is an illegitimate basis for imposing various taxes.

34:52 - That goes back to the fray case which addressed this point

34:56 - head on.

34:56 - The nonresident

34:58 - in fray didn't get any benefit from any more benefit

35:01 - from the county local taxes than nonresident athletes

35:05 - receive from school district taxes.

35:07 - The other point I wanted to make is a correction.

35:09 - The school the school district tax is an earned income tax.

35:13 - It is an earned income tax on income.

35:16 - The last point out, I still got time.

35:18 - The last point I'll make is the

35:21 - excuse me time to wrap it up will give you. Yes.

35:24 - This idea of not being able to classify athletes

35:27 - versus other other wage earners is incorrect.

35:31 - The only case that's been decided on

35:32 - that issue is the Hill and Meyer case of the highest court,

35:35 - where athletes, professional athletes, their pay on the wages

35:38 - they make,

35:39 - where others who are not there for at least 20 days do not.

35:43 - That is a distinction based on that profession and been upheld.

35:48 - And that case has been cited by the NFL.

35:50 - Is it just the professional athletes

35:51 - or is it everybody that travels with the team?

35:54 - In both cases, it was everybody that travels with the team

35:57 - that derive money from performances

35:59 - performed in those facilities, Your Honor.

36:02 - And at the end of the day, we would request

36:04 - that this facility fee be upheld or severed.

36:08 - In the example we gave in our brief.

36:10 - Thank you, Your Honor. Thank you.

36:11 - Thank you very much.

36:13 - Very interesting and very well-briefed and well-argued.

36:20 - These next two cases

36:21 - deal with the

36:22 - legality of the software for a video game machine,

36:25 - which is called the Pennsylvania Skill Amusement Device.

36:29 - This game is also commonly referred to as the POM game.

36:32 - It is as it is manufactured by the semantic company.

36:36 - The Palm.

36:37 - Game is a coin operated video machine that offered

36:40 - several games, including a tic tac toe style puzzle,

36:44 - a potentially unlock able bonus section and a follow me

36:48 - imagine game and a second phase of game play.

36:52 - The party is disagree about whether the Palm game

36:54 - is an illegal gambling device under the Pennsylvania law

36:58 - or a game of skill.

37:00 - Uniquely, the Commonwealth Court has both original jurisdiction

37:03 - over certain matters

37:04 - and appellate jurisdiction over other matters.

37:07 - Previously, in its original jurisdiction,

37:10 - the Court determined that

37:11 - the Palm game is not covered by the Gaming Act.

37:14 - However, the question of whether the Palm game, an illegal

37:18 - gambling device under the crimes code, remains unresolved.

37:21 - These cases,

37:23 - which the court is hearing in an appellate jurisdiction,

37:25 - present that very question.

37:27 - With that, let's listen to the parties arguments.

37:33 - Good morning, Your Honor.

37:34 - May it please the court. My name is Sue Franti.

37:36 - I represent the Commonwealth appellants in this matter,

37:39 - and I'd like to reserve 2 minutes for rebuttal, please.

37:42 - You have it.

37:43 - Thank you, Your Honor.

37:45 - Slot machines are quintessential gambling devices.

37:49 - They've been around for more than 100 years.

37:51 - The phrase immediately will bring images to your mind.

37:55 - You put a coin in, you pull the arm, the real spin.

37:58 - You match three in a row,

37:59 - and you win more money than you put in.

38:02 - Over the years, things have changed.

38:05 - You don't pull that arm anymore.

38:06 - You don't put the coin in anymore. You push a button.

38:09 - But those real still spin and you're still waiting

38:12 - and hoping for three in a row so you can win big.

38:15 - But that's not what we have here, right?

38:17 - I'm sorry. Over here.

38:19 - Sorry. Sorry.

38:20 - That's not just what we have here.

38:22 - We have a game that has two components to it,

38:25 - and you're kind of putting the bunny in the hat saying

38:28 - it's a slot machine.

38:29 - It's illegal because we haven't gotten there yet.

38:31 - We've never made that determination.

38:33 - That's kind of like why we're here today.

38:35 - So, you know, can you address the fact that the standard

38:40 - to be applied is predominant use or character?

38:43 - So how and to the fact that it has the skill component

38:47 - which I don't think

38:48 - the Commonwealth disputes the follow me is skill.

38:52 - We do not. Okay.

38:53 - So both the skill and the chance are part of these games.

38:59 - All right.

38:59 - So I want to be clear, there's two possible tests.

39:02 - There was just the slot machine test

39:03 - that we talk about, the statutory analysis.

39:05 - But I'm going to go right to the predominant factor test,

39:08 - since, Your Honor, we'd like to talk about that.

39:10 - So yes, we agree completely that follow me is 100% skill.

39:15 - What triggers the follow me?

39:17 - That's the problem, Your Honor.

39:20 - When you sit down to play this game,

39:22 - what you see right away are those spinning reels.

39:25 - That's what you play.

39:26 - That's what you see if you play rapid.

39:28 - So what that would mean is you push the button, the real spin.

39:32 - If you don't get a certain partial win,

39:35 - you press the button again.

39:37 - The real Steve spinning you will never see.

39:40 - Follow me even offered at that moment in time.

39:43 - Right.

39:44 - So as a result, did you say because of it was

39:47 - it was already a win and that's why you know.

39:49 - No, no, no. If it's

39:51 - if it is a full loss,

39:54 - it will you press the button, the reels to spin again.

39:57 - So you press the button.

39:58 - The reels don't line up in a way that is a winner

40:00 - or a partial winner is press again

40:02 - so players can sit there and just keep pressing.

40:06 - And if that's what happens, that little toggle

40:09 - at the bottom of the screen will never pop up.

40:11 - It will just spin again.

40:12 - It will pay another $0.40, another $2.

40:15 - Whatever you pay is that if they keep winning,

40:18 - if they don't win, if they do not win,

40:21 - if they do not win at all.

40:22 - So there's two different types of wins.

40:24 - I'm sorry, I'm a don't win. Sorry.

40:26 - I'm sorry. Yes, absolutely.

40:27 - So there's two different types of wins.

40:29 - There's a partial win, there's a full win,

40:31 - and there's just a straight loss.

40:34 - When there's a straight loss, that's when you're never going

40:36 - to see that trigger.

40:37 - You're never going to see follow me at all.

40:40 - And that's important, right?

40:42 - Because that means that

40:43 - first part of the game that part that's advertised, that part,

40:47 - that's the only thing the player sees

40:48 - when they sit down they don't even know about Follow Me.

40:52 - And even when there is a partial win

40:56 - or if they don't play rapid, right?

40:58 - So they lose, but they play it through and they go real slow.

41:03 - It doesn't feel like a slot machine

41:04 - to me, but it's, you know, that's what they're doing.

41:07 - The do play wrap and keep going, just like a slot machine.

41:11 - When that happens, there is a toggle at the bottom,

41:14 - so it may partial win, you win $0.40 or something like that,

41:18 - and then it will flip over and says, Touch here to follow me

41:22 - doesn't explain it.

41:24 - There's no point that they explain it

41:26 - until you as a player think, Well, gosh,

41:29 - I don't know if this is a new process at that point.

41:32 - They do explain it,

41:34 - but not really a part of the game.

41:36 - It's not really a part of what's told to the player

41:39 - when they sit down.

41:40 - This is different than what the trial court found, right?

41:43 - So, no, Your Honor, I don't think it is different.

41:46 - Factually, the trial court simply ignored that.

41:51 - They didn't talk about that at all.

41:52 - The trial court's

41:53 - focus was simply on the fact that follow me existed

41:57 - and the mere existence of it was enough.

41:59 - So I'm not advocating I don't think that's a fair

42:04 - summary of what the trial court said.

42:05 - Follow me that and listen to the testimony of the experts

42:09 - that the Commonwealth presented and then the expert that the

42:15 - right, there's an expert

42:16 - by the league presented and said they find the appellees

42:21 - expert to be credible

42:23 - and the Commonwealth's witnesses not to be credible.

42:26 - This is a matter of credibility on that issue.

42:29 - And the trial court also addressed the fact

42:32 - as to whether you get into follow me or not.

42:34 - So I'm.

42:35 - I'm feeling like you're saying different facts

42:38 - and how the trial court found them.

42:40 - So I would say, Your Honor, that the balancing component

42:44 - is a legal standard, not a factual standard.

42:47 - So I don't think there's a credibility analysis

42:50 - on how to balance you presented expert.

42:53 - We did we didn't found them.

42:54 - Not credible to be not credible.

42:56 - Right.

42:56 - But, Your Honor, I think those experts

42:58 - are talking about the facts.

43:00 - And I mean, this is a legal determination.

43:03 - You don't have to defer to an expert on legal determination.

43:05 - You your honors are in the

43:07 - exact same position that the trial court would

43:09 - it it's a legal determination based on what

43:11 - the trial court said was predominant right answer right.

43:15 - There's no doubt

43:16 - based that on the testimony and the evidence and the record.

43:20 - Right.

43:21 - That's how I understood it.

43:22 - Yes, I think that's right. Your Honor.

43:23 - But I just think that when you're talking

43:25 - about a legal determination, the balancing of facts,

43:28 - that's a legal determination.

43:30 - Well, and is there also a distin

43:36 - are well, how players actually

43:39 - utilize the machines versus how the machines are sort of built?

43:44 - And it seems to me

43:45 - the trial court may have made a determination

43:48 - that you don't look at how players

43:50 - actually utilize the machines, which is a kind of.

43:54 - I guess you'd say there's a legal component to that.

43:57 - And then the question what your I think describing

44:01 - is how players actually utilize the machines.

44:05 - I think you can look at it four ways, Your Honor.

44:07 - I think, first of all,

44:09 - I would say that I think the trial court

44:10 - was incorrect to say that how the game is utilized

44:14 - doesn't matter.

44:15 - I think that's actually a legally incorrect standard.

44:17 - So that's problematic from a legal perspective.

44:20 - But just looking at how the

44:24 - we don't need to demonstrate how the game is played,

44:27 - the game itself speaks for itself.

44:30 - It advertises itself.

44:32 - It shows you what it is.

44:34 - The game was seen, the game is there.

44:36 - The game is of record.

44:39 - The game is not a credibility determination.

44:42 - The game doesn't need

44:44 - to be deferred to the findings don't need to be deferred to

44:47 - the game is like the question like the trial court said

44:52 - predominant factor test for game to constitute gambling.

44:56 - It must be a game where chance predominates rather than skill.

44:59 - I do have to have some factual finding.

45:02 - You do have to have some expert witnesses to establish that.

45:07 - Right. And the trial court said it didn't have.

45:09 - I actually I'm not sure that's true.

45:11 - It's what we would call,

45:12 - I think, a mixed question of fact in law. Right.

45:14 - And in some instances, the facts.

45:17 - So there might be a dispute about

45:18 - whether or not it is skill. Right.

45:20 - So that's something you might need an expert for.

45:22 - We're not disputing that following skill.

45:25 - There might be some question about the chance

45:27 - component of the first phase of the game,

45:30 - and I'm not going to speak for Mr..

45:31 - However SIC we're going to let him do that.

45:32 - But but I think largely we're in agreement.

45:35 - There's a lot of chance it's

45:37 - all about the luck of the rules, just like a poker game.

45:40 - So you have those two things.

45:41 - That's where your facts are and we agree.

45:44 - So there's no credibility issue, there's

45:46 - no credibility, no deference issue.

45:47 - We're actually in agreement.

45:49 - Our question is about how you take those two

45:51 - completely neatly disparate facts

45:52 - and they're completely disparate

45:55 - how you, as a legal matter, balance those.

45:58 - And that's for this court to determine.

46:00 - Well, isn't it designed?

46:03 - No, I don't think so.

46:04 - I thought that was your position.

46:05 - No, my position is that by design,

46:08 - these machines are designed to be games of chance.

46:12 - I'm sorry.

46:13 - Design versus play.

46:14 - How is it actually play?

46:16 - And being the two issues that are really we're looking at here

46:20 - and your design argument is that it's designed

46:24 - to be chance, right?

46:27 - Absolutely. And they're saying it's designed

46:30 - in inter group integrally to be a skill chance.

46:34 - You can't separate the two.

46:36 - That's what that was a factual determination

46:38 - that had to be made.

46:39 - And based on the facts, the legal determination,

46:42 - then, Your Honor, respectfully disagree.

46:44 - I think it is the balancing test that's going on.

46:47 - And I think if you listen to Mr.

46:48 - Haverstock later, he's not talking about the whole game.

46:50 - He's just talking about follow me.

46:52 - Can you explain your balancing test?

46:54 - So balance

46:54 - and I'm sorry, Your Honor, I'm clearly not articulating.

46:57 - Well,

46:58 - what you have on one hand is this first phase of the game,

47:02 - this first component of the game,

47:03 - we're in a full agreement that that is chance

47:06 - you have the second phase of the game

47:08 - that sometimes comes up, sometimes doesn't follow me.

47:10 - Follow me. That is 100% skill.

47:14 - You are

47:15 - faced with two totally different components and the question

47:19 - of how to balance those two components.

47:22 - I would say the trial court got it wrong

47:24 - when they said this skill component because it exists,

47:28 - it swallows the whole.

47:30 - What we are saying is, no, you have to

47:32 - look at the whole game.

47:34 - And my opponent has said that too.

47:36 - But when I say it, what I mean is, you really do have to look

47:40 - at the whole game.

47:41 - You have to look at the first part

47:43 - and the second part

47:44 - and decide what predominates in looking at the whole game

47:47 - and then looking at the factors that are to be considered.

47:51 - There is a factor for the reward.

47:54 - And how is the reward here different

47:58 - from even assuming argue undo

48:00 - if it's a complete game of chance,

48:01 - an award that would be given in a arcade

48:06 - where there it's complete chance

48:08 - and instead of getting a $10 coupon, you're getting a $10

48:11 - stuffed animal that you can redeem with your coupons.

48:14 - Is the nature amount or character of that reward

48:17 - something that needs to be considered in the analysis.

48:21 - I think the nature I mean, we're in agreement that there is

48:23 - a reward component here.

48:25 - But I think the nature of the

48:26 - reward here is actually pretty important.

48:28 - When you look at the Irwin case, the Commonwealth

48:30 - versus Irwin, Pennsylvania Supreme Court,

48:33 - that case, they were talking a lot about the reward.

48:35 - That was the issue in that case.

48:38 - And what they focused on was when the promised return is

48:42 - less than what was put in,

48:43 - the incentive must be entertainment.

48:46 - So here the promised return

48:49 - even under follow me, interestingly, is 105%.

48:53 - So the promised return actually exceeds

48:57 - it's not about entertainment, it's about winning.

49:01 - The whole game is about winning.

49:02 - And that, I think, does help, Your Honor.

49:04 - Well, isn't arguably a 5% return over a period of time

49:07 - entertainment to some people versus a

49:10 - that does not seem to be the way Irwin focused on it.

49:13 - Actually, in Irwin, they talked about how important it was

49:17 - that the return never exceeded the amount

49:20 - put in.

49:29 - I would like to talk a little bit

49:31 - about the statutory analysis that you're risking that

49:33 - you're not asking me about it.

49:35 - So apparently you're not that interested,

49:36 - but we'll talk about it a little bit.

49:38 - I do think that the crimes code is very clear here.

49:41 - I think you don't even need

49:42 - to get into the predominant factor test.

49:45 - And I would just focus on the language, which is it

49:48 - is a crime to intentionally sell or lease any punch board,

49:53 - drawing card, slot machine or any device

49:57 - we use for gambling purposes except playing cards.

50:02 - It's pretty clear to me that there are two separate lists.

50:04 - Those any break them up

50:07 - to take

50:07 - the device used for gambling purposes

50:11 - and put that to the slot machine is an incorrect

50:14 - reading of the statute.

50:15 - Slot machine speaks for itself

50:17 - and I see my time is running down

50:19 - and you will get to hear from me later.

50:20 - So if you have nothing else, I'll say

50:23 - thank you very much, Madam President.

50:30 - Judge Your Honor, my name is Matt.

50:32 - Have a stick.

50:33 - I represent capital vending along with my partner Josh Foss.

50:37 - Mr. Chris Carson represents champions.

50:40 - I'll be doing the arguing today

50:43 - and it may please the Court.

50:44 - Your Honor, the Commonwealth has a

50:46 - credibility problem and it started

50:50 - at the trial court level and

50:52 - and it ran all the way up until about 90 seconds ago.

50:56 - It's why the trial court needs to be affirmed in this case.

51:00 - Let me jump right into it.

51:02 - You know,

51:02 - we heard some potentially

51:04 - very compelling arguments, I think, from the commonwealth

51:07 - right now about supposed facts elicited

51:10 - at the trial court level.

51:11 - If only they were true, if only it had actually happened.

51:15 - There was no testimony from anyone.

51:18 - Save maybe a college for me

51:20 - about the intent of the creators of the game

51:23 - and why the game was structured the way it was.

51:26 - That's not in the case.

51:27 - Judge Dowling, in fact, excluded their efforts

51:30 - to get that testimony elicited through a witness.

51:33 - So please

51:34 - don't let the Commonwealth come up here and tell you

51:36 - that it has a credible, factual argument

51:39 - about why the game does what it gives me.

51:42 - I read what I thought was conflicting information

51:46 - from the parties,

51:47 - either in this case or the the one we're hearing with it.

51:50 - And it's very important to me

51:53 - for the

51:54 - analysis to understand when the player is notified

51:57 - of the option to Segway into the follow me,

52:00 - which is the game of skill, Your Honor,

52:04 - I think with with some level of death.

52:07 - And in this

52:08 - I can be the voice of what the game play looks like.

52:12 - And by the way, we walked

52:13 - and if you don't want

52:15 - to take my word for it, go through the cross-examination

52:18 - of the Commonwealth's expert, Mr.

52:21 - Ciampi, in which he's about the backstop, everything I say,

52:24 - and he also admitted

52:25 - you can win the game every time, and if you can win a game

52:28 - every time, it's a predominant skill game.

52:30 - But here's exactly what happens in the game play

52:32 - and with respect to the Commonwealth,

52:35 - Judge Dowling below saw it my way too,

52:38 - because you sat there and watched the game.

52:40 - Unlike their phantom witnesses who never came

52:43 - and testified about what they think

52:44 - or do when the game plays, Judge Dowling actually watched it.

52:47 - Here's what happens you approach the game.

52:50 - What you see is a sign that says Pennsylvania Skill.

52:53 - So the first thing you see is not gambling reels.

52:56 - You see a game that says Pennsylvania skill.

52:58 - Before you put money in the game, you can know

53:02 - with 100 certainty what the game is going to do next.

53:06 - So before

53:06 - I put a dollar in the game, I can press a play

53:09 - next button and I will know if there are any winners.

53:12 - And at that point, nobody has a gun to my head.

53:14 - If I don't like any of the things

53:16 - that's going to happen next, I don't play.

53:18 - I don't put any money in the game.

53:19 - But let's let's let's say I'm I'm at a bar.

53:22 - I'm having a good time. I put money in the game.

53:25 - I hit the button for play.

53:27 - It pulls up a tic tac toe grin.

53:29 - Now, at that point, I have to see which spot

53:33 - I want to put a wild symbol in

53:35 - to make the best possible winning combination.

53:38 - Okay,

53:40 - I do that.

53:41 - I win.

53:44 - Now, if I win more than 105% of of what

53:48 - I wagered, the consideration I put in, then I won.

53:52 - You know,

53:53 - I've gotten at least 106% of the consideration I played,

53:57 - if I correctly choose where to put my tic tac toe grid.

54:01 - And it is anything other than more than 105%.

54:06 - There's a blinking

54:08 - status button.

54:10 - It's on the screen

54:12 - status element that says, Follow me.

54:15 - Did you mean less than 105%?

54:17 - Yes, 105 or less.

54:20 - If you hit one less, one or five or less,

54:23 - then follow me pops up as an option.

54:25 - And when I hit that, I go to the instruction screens

54:29 - that I can play, follow me, and then I can.

54:31 - If I, you, as everybody concedes,

54:33 - if I play with skill, I'm going to win a guaranteed 105%.

54:37 - Mr. Harris, let me just stop you for a second.

54:40 - I understand that it's a win or a partial win,

54:43 - but what about if it's, as your adversary said, a loss?

54:47 - Does the follow me pop up then? Yes. Yes.

54:50 - So it pops up every time regardless.

54:52 - It is

54:52 - if you are a skillful player, every witness,

54:56 - the Commonwealth's witnesses,

54:57 - their expert, our expert, every single witness

55:00 - who testify, acknowledges

55:02 - and agrees and admits on every single play of the game.

55:06 - If you can play with skill the whole game,

55:09 - if you can play with skill, you are guaranteed 105%.

55:12 - But that's not the question.

55:13 - I think I know my question is I sit down,

55:17 - I put my money in and I'm not the sharpest pencil the box.

55:20 - I blow it out I lose does follow me pop up

55:23 - if if you don't skillful if you don't use skill to choose

55:27 - the right combination like you know

55:29 - there's two pirates and and

55:32 - and you put your wild cymbal in a row

55:34 - that doesn't create three in a line.

55:35 - No. Then you lose and you don't get to play.

55:37 - Follow me. But you haven't played the skill.

55:39 - But, but.

55:39 - But what's the skill involved?

55:41 - You have to recognize in a limited amount of time

55:44 - where to put the right pattern in the tic tac toe grid.

55:46 - There are only tic tac toe.

55:48 - What about the reels? There's no reels.

55:50 - It doesn't know what it looks like.

55:52 - A tic tac toe screen.

55:54 - They the nine squares populate with different symbols.

55:58 - And invariably what happens is they're going to be two in a tic

56:01 - tac toe line and you have to pick the square

56:04 - in between them or wherever to create three in a row.

56:08 - And sometimes in some versions of the game,

56:11 - there can be potentially two choices

56:12 - where you can make a line of three

56:14 - and then within 30 seconds

56:15 - you have to figure out, all right, well,

56:17 - which one is worth more than are there ever any times when

56:21 - there's no way to put something to make a three in a row?

56:25 - If that happens

56:25 - and it's impossible to win, then you get to play.

56:27 - Follow me the only time you know.

56:29 - So it's not always skill, sometimes it's luck.

56:33 - That's how it comes up.

56:34 - But in that case, it's no different than the outcome.

56:37 - If you win and get less than 105%, you're still

56:41 - presented with Follow me to win 105% with skill.

56:45 - The only time follow me does not present

56:48 - for play or in the following two circumstances.

56:51 - One You play skillfully in the tic tac toe game

56:54 - and you win more than 105%.

56:57 - Two You

56:59 - play the tic tac toe game not skillfully,

57:02 - meaning you don't put three in a row

57:04 - and then you lose and then you can't go further.

57:06 - But that's because that's not because the game made me lose.

57:09 - I, as the player, didn't

57:11 - pick up the right pattern to put the spot in.

57:13 - We put the wild in.

57:15 - What you're saying is not chance at skill.

57:17 - It's yes and every every expert who is.

57:23 - Well, certainly our expert, Dr.

57:24 - Van Kerr, who, you know,

57:26 - I think the trial court correctly

57:28 - weighed the credibility, the two experts.

57:30 - And, you know, back to our credibility point,

57:32 - he found the Commonwealth's expert not credible.

57:35 - He found capital Benning's expert credible.

57:38 - He he testified that there was really skill suffused

57:42 - throughout the game.

57:43 - It's not fair to say

57:44 - that the tic tac toe game is purely chance.

57:47 - It's not.

57:48 - But regardless is and I think this is the right way to look at

57:51 - the predominant factor test.

57:53 - There's and this testimony came from Dr.

57:56 - Van Curry.

57:57 - It came from the Commonwealth's expert.

57:59 - There is nothing the game can do to prevent a skillful player

58:04 - from winning 105% on every play.

58:07 - No element of chance can prevent that.

58:10 - If you are good at the game and you play it skillfully,

58:13 - you will.

58:14 - You will win 105% minimum on every play.

58:18 - Everybody said they still in business.

58:22 - Look, Your Honor, they're smart.

58:24 - I'm not going to run from it.

58:25 - They've created a game that has the ability

58:28 - to be played in a fun way and an ability to be played

58:31 - in a way where you can make $20 an hour and people do

58:33 - is our expert testified and that's no different than

58:38 - an arcade game.

58:39 - And these games are usually in bars right

58:42 - in fraternal people are drinking.

58:43 - Yeah they're in fraternal organizations.

58:45 - They're in bars.

58:47 - Yeah.

58:48 - I mean, they're places where people go and have a good time.

58:50 - And I think that's the genius of the game, frankly.

58:53 - It's it's created a legal game under the

58:56 - the decades long structure

58:59 - we create in the Commonwealth to define what gambling is.

59:02 - And it's done it in a way that, you know, again,

59:06 - you can sit there are expert testified it and win upwards

59:09 - of $20 an hour and play skillfully if you want to

59:12 - or you can have a good time and you can you know,

59:14 - you can just sit there and hit the button still.

59:18 - That's not the game doing that, though.

59:19 - That's the player deciding how to play the game.

59:22 - And I think that's the genius of it.

59:24 - And it's,

59:24 - you know, it's why it's lawful and and in business counsel,

59:29 - in the second case, can you briefly

59:32 - talk about the procedural issues

59:35 - in the Monroe.

59:36 - County case, your Honor, I'm going to leave that to to Mr.

59:39 - Berkovitz in the next case.

59:41 - If that's if that's okay, that's fine.

59:43 - But, you know, Your Honor, while I'm addressing you,

59:48 - I do want to point this out, and I think

59:51 - we all know it, but I think it needs

59:53 - and bears repeating.

59:56 - You authored an opinion, a precedential opinion

59:59 - 398 on exactly these facts and exactly this

01:00 - 06.369 law about a month and a half before the Commonwealth's brief.

01:00 - 09.205 And it's it's not mentioned in the Commonwealth's brief

01:00 - 12.442 that is not a credible appellate approach.

01:00 - 15.311 It's not it gets pinnacle,

01:00 - 18.580 gets a glancing mention in the reply brief,

01:00 - 20.749 but even then it's sort of a blow off.

01:00 - 24.153 I think that is emblematic of what

01:00 - 29.157 this litigation has been looking like from the Commonwealth

01:00 - 32.762 in Dauphin County, in Monroe County, in other counties

01:00 - 37.532 where the approach is designed to come to a particular ending.

01:00 - 39.635 And it's not designed to do justice,

01:00 - 41.771 it's not designed to respect what the facts are.

01:00 - 44.039 It's not designed to respect what the law is.

01:00 - 45.041 I think it's.

01:00 - 48.810 I think it's shocking, frankly,

01:00 - 49.545 that there

01:00 - 53.516 is a presidential opinion on exactly the same facts in law

01:00 - 56.753 that they, in their allocator petition, acknowledge

01:00 - 00.088 is a substantially similar case to this one.

01:01 - 02.458 They say that in their allocated petition that these cases

01:01 - 04.660 are substantially similar.

01:01 - 07.863 They also say, for the record, that the game in PINNACLE

01:01 - 11.333 and the game in our case are virtually identical.

01:01 - 13.402 They say that in their allocator petition

01:01 - 16.338 how that can be the case and it doesn't get mentioned

01:01 - 18.341 by the Commonwealth or addressed at all.

01:01 - 20.977 And then how they can,

01:01 - 23.980 they can see that result in pinnacle

01:01 - 27.250 and make the exact same argument in this case

01:01 - 30.653 the same factual arguments, the same legal arguments

01:01 - 35.724 they just retread in this case without regard to the testimony.

01:01 - 37.125 Judge Dowling heard,

01:01 - 38.226 without regard

01:01 - 41.097 to what this Court has said the operative law is,

01:01 - 45.201 without regard to the abuse of discretion standard that they

01:01 - 47.804 you know, they knew they had to address in pinnacle.

01:01 - 49.271 They just forgot about it here.

01:01 - 52.408 I mean, there's no hardly any maybe not

01:01 - 56.445 addressing of how Judge Dowling abused his discretion.

01:01 - 59.382 And in any of his fact findings and in any of his credibility

01:01 - 01.817 determinations. It's all ignored.

01:02 - 02.652 It's all ignored.

01:02 - 06.655 And I think that omission, Your Honor, is more telling

01:02 - 09.257 than anything they actually did write down on the paper.

01:02 - 11.426 And anything that they're going to tell you today, the fact

01:02 - 13.662 that they can't play straight with this court

01:02 - 14.230 about what

01:02 - 17.967 the game in the face of their own witnesses admitting

01:02 - 21.002 you can win this 105% of the time, you can win this

01:02 - 22.170 if you're skillful.

01:02 - 24.607 Nothing in the game prevents a skillful person

01:02 - 26.274 from winning this game.

01:02 - 29.244 In the face of all of that, they still come in here

01:02 - 30.912 and just pretend like none of it happened.

01:02 - 33.448 And I think that says a lot about

01:02 - 34.549 the Commonwealth's approach

01:02 - 36.084 and I think Judge Dowling figured that out.

01:02 - 38.955 To think he meant to say you can win at 100% of the time,

01:02 - 41.389 you can win 140, you can win every time

01:02 - 44.827 and you can win at least 105% of what you your consideration.

01:02 - 47.129 I don't want to belabor the point.

01:02 - 49.097 I always love to vamp for this court a little bit.

01:02 - 51.733 But but look, I, you know, I, I meant it.

01:02 - 55.505 I think I think it is damning

01:02 - 59.641 that there is no mention of a precedential opinion

01:02 - 00.642 that is about I don't know,

01:03 - 03.045 the ink was barely dry on it when their brief was written.

01:03 - 05.614 So with that, your honors.

01:03 - 07.015 Unless there are any other questions

01:03 - 09.151 for me, I'm happy to sit down.

01:03 - 11.953 You're my time.

01:03 - 13.055 Thank you.

01:03 - 17.893 Thank you, counsel.

01:03 - 18.828 Before you start, Mr.

01:03 - 21.363 Grundy, could you address the elephant in the room?

01:03 - 22.998 Which elephant is that, Your Honor?

01:03 - 25.034 Pinnacle. Pinnacle.

01:03 - 28.069 Your Honor, first off, if we go with the statutory

01:03 - 29.905 analysis, Pinnacle didn't address that point.

01:03 - 31.206 So that's simple.

01:03 - 33.041 You can go in that direction.

01:03 - 35.410 And the second point, respectfully,

01:03 - 38.447 Judge DeMoss, we believe Pinnacle was wrongly decided.

01:03 - 41.350 We will continue to argue that, as we did in our allocator,

01:03 - 45.520 they are substantially similar cases.

01:03 - 47.523 I think the error in PINNACLE,

01:03 - 50.993 again, respectfully, is a focus on facts.

01:03 - 53.863 I think this is a legal determination

01:03 - 55.931 and I think that's the difference.

01:03 - 58.867 So we have to we have to overrule Pinnacle, Your Honor.

01:03 - 59.669 Yes, I really

01:03 - 01.336 if you go down the parameter

01:04 - 03.506 factor test group, then yes, I believe you do.

01:04 - 07.176 But we can avoid that if we do the you know.

01:04 - 07.977 Absolutely.

01:04 - 10.098 Which I think is a much more straightforward analysis.

01:04 - 11.680 I would like to address.

01:04 - 12.781 Judge Wallace this question,

01:04 - 15.384 if I may, just to make sure I answered it earlier.

01:04 - 19.387 If you win more than 100%.

01:04 - 20.323 No, follow me.

01:04 - 21.423 More than 105%.

01:04 - 22.757 No, follow me is prompted

01:04 - 24.926 because it's not available, which makes sense.

01:04 - 27.630 A partial win follow me will pop up on that toggle

01:04 - 30.432 all lost follow me will pop up on that toggle.

01:04 - 32.601 We completely agree. Follow me will pop it.

01:04 - 35.104 Well that's what you said. Yeah, you can say that.

01:04 - 36.872 All right. Let me be very clear.

01:04 - 38.673 I'm sorry if I've misled.

01:04 - 40.543 That was not my intention.

01:04 - 41.477 We agree.

01:04 - 43.044 I agree with everything Mr.

01:04 - 45.814 Ristic just said. Here's the one part he left out.

01:04 - 48.283 And I think it's very important.

01:04 - 51.453 If you are playing rapid, follow me.

01:04 - 54.790 Does not pop up at all.

01:04 - 57.726 You play right through it.

01:04 - 59.628 So I want to make sure that's clear.

01:04 - 01.162 We were playing in rapid mode.

01:05 - 02.698 It doesn't come up. I

01:05 - 05.500 we're going to have to look at the record

01:05 - 06.668 because when I'm reading the brief,

01:05 - 08.804 sometimes I was getting confused on

01:05 - 11.539 it seemed like I was getting conflicting information.

01:05 - 13.609 But can you help me understand what rapid is?

01:05 - 15.577 Is that when the player just decides

01:05 - 17.412 to play quickly, or is it an option

01:05 - 20.382 where the selection comes up and you have to make the choices

01:05 - 22.083 in a really quick amount of time?

01:05 - 25.120 It's a playing quickly patterning.

01:05 - 26.821 So what the player can do

01:05 - 27.490 and they're encouraged

01:05 - 29.492 by the game to do this, they said, you can do this

01:05 - 31.426 because you just keep hitting the button

01:05 - 32.361 and it'll stop

01:05 - 34.429 if you have the option to put one of those wilds in.

01:05 - 36.131 And if it doesn't, it just keeps spinning.

01:05 - 38.567 So keep taking your $0.40, $0.40, $0.40.

01:05 - 40.402 So that's the difference.

01:05 - 42.037 So it's not that when you walk into the game,

01:05 - 43.438 you're saying, I want to play Rabbit.

01:05 - 45.174 It's the manner in which you play.

01:05 - 47.909 You disagree though with Mr.

01:05 - 51.347 Have a six assertion that outside of rapid

01:05 - 55.518 just a normal game mode that a skilled player

01:05 - 59.221 who knows what he or she is doing and is not say

01:06 - 03.759 enjoying himself or herself too much in the fraternal

01:06 - 08.297 or cavernous aspects of the play

01:06 - 10.800 can win 100% of the time,

01:06 - 14.170 Your Honor, I think it's a little bit of a trick.

01:06 - 17.239 Yes, they can win. So I do agree.

01:06 - 20.710 What I disagree with is the reality of that.

01:06 - 23.713 Yes, they've put a tag along game here.

01:06 - 26.815 They've done everything they can to make it the most

01:06 - 29.518 unappealing game possible.

01:06 - 32.354 20 minutes.

01:06 - 34.022 You're sitting there, you're playing your point.

01:06 - 36.491 I'm sorry, I misspoke. 12 minutes.

01:06 - 37.293 I can feel Mr.

01:06 - 39.428 Harris reacting.

01:06 - 41.263 He does that go

01:06 - 43.531 12 minutes

01:06 - 46.601 as opposed to 2.5 seconds?

01:06 - 47.969 It's a completely different game.

01:06 - 49.070 Yes, it's available.

01:06 - 52.107 But you have to look at the whole thing.

01:06 - 53.641 That's the difference. And that's where we disagree.

01:06 - 55.811 We're I'm not following you as you were

01:06 - 00.081 critiquing the pinnacle decision because it allowed

01:07 - 02.083 for the fact analysis which occurred.

01:07 - 05.388 But yet in your concise statement of errors

01:07 - 07.789 that you raised on a peer, you say that

01:07 - 08.657 the trial court aired

01:07 - 09.991 by concluding the question of

01:07 - 13.162 chance versus skill depends on the gaming machines themselves

01:07 - 16.598 and not on how a player plays them.

01:07 - 18.433 Where the court focused on the opportunity

01:07 - 20.168 to play the optional second date,

01:07 - 22.037 wouldn't that be the factual question

01:07 - 24.339 you're saying is not the proper test, but yet

01:07 - 28.043 when you raised it on appeal and then you can clarify for me

01:07 - 31.479 because I'm having trouble following your argument.

01:07 - 32.781 And then you say that

01:07 - 35.216 the trial court abused its discretion

01:07 - 39.054 by just sustaining the objection to Officer Shope, testifying

01:07 - 40.889 to what others told him about the game.

01:07 - 42.957 Again, a factual thing.

01:07 - 44.192 So what are you saying here?

01:07 - 46.494 I mean, look at the facts or don't look at the facts.

01:07 - 47.862 There are certain factual components.

01:07 - 49.631 I think that the court got wrong,

01:07 - 51.232 but I don't think you need to get into any of them.

01:07 - 53.602 And that's why I'm not talking about abuse of discretion,

01:07 - 57.405 because I don't think you can accept the factual components

01:07 - 59.407 of what that's what I'm trying to get you.

01:07 - 04.447 The fact I'm sorry I'm not being intentionally, I'm really not.

01:08 - 07.183 There are factual

01:08 - 09.084 findings about what the characteristics

01:08 - 11.086 of the first part of the game are.

01:08 - 13.588 I'm not challenging those in any way.

01:08 - 15.190 There are factual findings about what

01:08 - 17.792 the characteristics of the Follow Me game are.

01:08 - 20.462 I'm not challenging those in any way.

01:08 - 21.996 I am challenging that.

01:08 - 24.400 When you look at this whole game and you balance

01:08 - 27.503 which is the legal predominant factor test,

01:08 - 30.672 when you do that and you have these two

01:08 - 33.609 completely different things, how do you weigh that?

01:08 - 34.643 How to legal

01:08 - 37.513 predominant factor test without looking at the facts?

01:08 - 39.481 That's what I don't understand.

01:08 - 41.951 That's why I thought Pinnacle was a good opinion. But.

01:08 - 44.152 Okay, thank you.

01:08 - 44.820 Thank you.

01:08 - 47.156 Yes, I think we understand

01:08 - 50.292 the positions here in the arguments.

01:08 - 53.729 Again, very well briefed and argued. Yes.

01:08 - 57.565 And to stay with our theme,

01:08 - 59.902 we're going to move to number 84,

01:09 - 02.938 which is in RE

01:09 - 06.908 for Pennsylvania skill, amusement devices and one ticket

01:09 - 09.777 redemption terminal.

01:09 - 10.412 And again,

01:09 - 13.648 it's the appeal of the Commonwealth of Pennsylvania.

01:09 - 16.218 And this one comes from Monroe County,

01:09 - 20.689 Dawson, and we have new counsel here.

01:09 - 22.824 Good morning, Your Honor.

01:09 - 24.092 Good morning, Court.

01:09 - 25.860 My name is Curtis Rogers, assistant

01:09 - 27.495 district attorney of Monroe County

01:09 - 29.030 on behalf of the Commonwealth, as Your Honor

01:09 - 31.466 noted, the jurisdiction at issue in this case.

01:09 - 35.436 This case comes to the court by a slightly different posture.

01:09 - 37.439 How you going to want rebuttal time?

01:09 - 38.706 Thank You for reminding me, Your Honor,

01:09 - 40.909 I would request 2 minutes of rebuttal time.

01:09 - 42.644 Certainly. You have it.

01:09 - 43.212 Thank you.

01:09 - 44.113 So, Your Honor,

01:09 - 46.014 as Your Honor is now, this case was transferred

01:09 - 48.249 to this court by the Superior Court on Appeal,

01:09 - 49.351 the Commonwealth.

01:09 - 51.352 Based upon the Commonwealth's assertion

01:09 - 54.056 that the trial court in this case had no jurisdiction,

01:09 - 56.724 that's really what the Commonwealth believes

01:09 - 58.960 is the starting at any point here.

01:09 - 00.795 There is clear case law,

01:10 - 01.996 particularly from the Superior Court,

01:10 - 04.199 Commonwealth versus Harris and others

01:10 - 07.001 that state the failure to have returned the record

01:10 - 09.071 and the receipt of the record by the Lower Court

01:10 - 12.041 does not ever enable the Lower Court to act

01:10 - 13.841 for the very valid reason

01:10 - 16.177 that while pending appeals are underway

01:10 - 18.746 of the trial court risks entering a decision

01:10 - 20.481 that is not consistent with

01:10 - 22.584 or following the ultimate decision

01:10 - 25.654 of an appellate court in the case, as is undisputed.

01:10 - 27.722 We have a pending petition

01:10 - 29.224 for allowance of appeal with the Supreme Court,

01:10 - 31.559 and that is still pending as of today.

01:10 - 33.428 Therefore, the record has not been returned.

01:10 - 35.330 That is not in dispute.

01:10 - 37.800 Without a return record, this court had no jurisdiction.

01:10 - 40.313 I don't think I need to belabor that point. I think it's clear.

01:10 - 42.670 Well, is that the case?

01:10 - 46.507 If there's an appeal of an interlocutory order?

01:10 - 47.909 Not in every situation,

01:10 - 49.344 Your Honor, I will certainly say that.

01:10 - 51.447 But in this situation, I believe it is the case.

01:10 - 54.583 The case is cited by the trial court to try to

01:10 - 58.886 describe this matter as an improper interlocutory appeal.

01:10 - 01.156 Unworthy of consideration

01:11 - 02.890 of the return of the record standard,

01:11 - 05.227 I believe, are inapplicable as described in my brief.

01:11 - 06.995 There are cases where there are clear

01:11 - 09.431 procedural violations in this case.

01:11 - 13.569 It admittedly is somewhat factually complex.

01:11 - 14.303 We have sort of an

01:11 - 17.706 intermixing here, but we believe, as we argued

01:11 - 19.540 initially and we're still arguing

01:11 - 21.142 with the Pennsylvania Supreme Court

01:11 - 22.810 that this is a matter that is quasi

01:11 - 24.312 criminal nature, that is the motion

01:11 - 26.448 for return of property, particularly when it's bundled

01:11 - 30.352 with a suppression matter that I would believe

01:11 - 33.856 without any dispute or doubt, makes it a criminal matter

01:11 - 35.690 overwhelmingly.

01:11 - 37.592 Also added to the fact, as referenced in

01:11 - 39.761 our brief, is the fact that

01:11 - 41.963 criminal charges in this matter where it becomes a little bit

01:11 - 43.598 more complex, that's not the center

01:11 - 45.400 focus of this case, but criminal charges

01:11 - 48.604 related to the seizure of these machines were filed, sometimes

01:11 - 51.073 sometime after this motion of return of property.

01:11 - 52.708 Those

01:11 - 55.977 criminal cases were disposed of by colleague, judge

01:11 - 57.712 of our Court of Common Pleas in Monroe County

01:11 - 59.947 using a collateral estoppel analysis.

01:11 - 02.784 In other words, that colleague judge adopted the trial

01:12 - 05.621 court's analysis here, dismissed criminal charges.

01:12 - 06.988 Why is that important?

01:12 - 09.758 Because it critically implicates Rule 311.

01:12 - 10.392 Clearly,

01:12 - 12.761 our case is substantially prejudiced or handicapped,

01:12 - 14.829 and we've actually seen the result of that

01:12 - 17.032 a companion judge dismiss the criminal case.

01:12 - 18.966 So we believe it's beyond dispute

01:12 - 19.768 that this type of

01:12 - 22.771 interlocutory appeal fits squarely within Rule three a11d

01:12 - 24.739 and is a proper one to considered.

01:12 - 27.241 Now, we certainly understand the Supreme Court

01:12 - 29.410 may not feel it's an issue worthy to address,

01:12 - 31.479 but we do believe it is at this juncture

01:12 - 34.216 very appropriate as an interlocu.

01:12 - 37.518 The second aspect of our argument,

01:12 - 39.554 if for some reason jurisdiction is found

01:12 - 40.955 not to be the critical determinant

01:12 - 43.458 and we believe it will be, is that

01:12 - 45.660 the trial did not follow proper procedure

01:12 - 47.595 with regard to the suppression aspects.

01:12 - 50.665 It did not in any way attempt to comply with Rule 581.

01:12 - 52.767 And again, we have a suppression here, bundled

01:12 - 56.004 with a return of property and rule 581 is clear.

01:12 - 59.540 Have you did you raise those now?

01:12 - 00.075 Yes, Your Honor.

01:13 - 01.777 It's raised in our brief,

01:13 - 05.346 but if we remand, will you be able to appeal

01:13 - 06.581 from any determinations

01:13 - 07.182 on the suppression?

01:13 - 08.083 Because you have to allow

01:13 - 09.884 findings of fact and conclusions.

01:13 - 13.555 We on briefing, we we believe that if it's remanded

01:13 - 15.957 for an appropriate hearing, we would have

01:13 - 17.392 a number of opportunities

01:13 - 20.461 to see what the court's reasoning was and properly plot.

01:13 - 21.996 And we know that the court has now bootstrap

01:13 - 24.133 some of that reasoning into its 1925 opinion,

01:13 - 26.753 but that was not in the fashion that would have allowed us,

01:13 - 29.937 we believe, to have cogently and fully argued

01:13 - 31.572 an appeal to this court.

01:13 - 33.541 We could not be expected merely guess.

01:13 - 35.676 And while there are cases

01:13 - 38.447 where the failure of a court to follow Rule 581

01:13 - 41.417 has been tolerated by appeals courts,

01:13 - 43.951 I would submit that in those cases it's been clear

01:13 - 44.620 when the court has

01:13 - 46.754 perhaps stated on the record at the time of hearing

01:13 - 47.556 what its decision

01:13 - 49.792 is, what its concerns are, what its reasoning is,

01:13 - 51.460 that those situations

01:13 - 54.396 make it clear to the parties what the decision is going to be

01:13 - 55.863 if the court reviews the record.

01:13 - 57.331 And I know it has and I know it will

01:13 - 59.467 in this case, the hearing in this matter

01:13 - 01.537 did not have that type of aspect to the hearing.

01:14 - 02.304 This matter.

01:14 - 04.505 At the end, the court merely said

01:14 - 06.934 it will consider the issues and allow the submission of briefs.

01:14 - 08.309 I'm sorry, can you just tell me where

01:14 - 10.479 in your brief you actually argue those?

01:14 - 11.980 I see all the

01:14 - 15.349 jurisdictional questions in Rock port.

01:14 - 21.489 And yes, Your Honor, if you give me a moment,

01:14 - 24.126 I will give you a

01:14 - 29.331 we're looking for merits on the suppression issue.

01:14 - 33.068 Page 21, Subsection D,

01:14 - 37.438 page 20, subsection C, talk about the failure of the court

01:14 - 40.776 to follow the mandates of Rule 581.

01:14 - 41.710 Well,

01:14 - 45.379 I was asking if you were arguing the merits of the suppression.

01:14 - 47.583 Oh, I apologize, Your Honor. No, we're not airwaves.

01:14 - 51.252 And for if if this doesn't go back, they would be.

01:14 - 53.488 But I believed that it was going

01:14 - 56.692 to be so problematic to sufficiently and

01:14 - 59.694 clearly argue merits that I did not want to be boxed

01:14 - 01.195 into arguing those merits

01:15 - 04.699 incompletely or inaccurately or unfairly to the Commonwealth.

01:15 - 06.267 I recognize that.

01:15 - 08.069 I do not think we're in a position to argue the merits.

01:15 - 10.004 I also understand that is probably not

01:15 - 12.206 the central issue of concern to this court

01:15 - 15.142 relative to the characterization and character

01:15 - 16.511 of the machines themselves.

01:15 - 18.145 We also understand that the Court's decision

01:15 - 19.981 relative to those machines will certainly guide

01:15 - 22.183 us as we go forward, and we respect that.

01:15 - 24.319 So I do understand Your Honor's concerns,

01:15 - 27.054 but I believe the jurisdiction and procedure

01:15 - 28.322 where the government concerns here

01:15 - 29.803 and that's why we addressed it is such

01:15 - 32.660 that the court has no other questions.

01:15 - 34.763 I yield the balance of my time.

01:15 - 37.666 Well, you may certainly have some of that

01:15 - 39.700 for rebuttal if needed.

01:15 - 40.701 Thank you.

01:15 - 46.207 Morning honors may please.

01:15 - 47.042 The Court

01:15 - 51.012 Edward Berkovitz appearing on behalf of appellees.

01:15 - 54.382 I think it's important to start with trying to understand

01:15 - 57.519 what it is the Commonwealth is actually asking

01:15 - 00.155 this Court to do in this case.

01:16 - 03.190 Looking at their conclusion,

01:16 - 06.828 they just say they want reversal sent back to the court.

01:16 - 08.997 There's no reason

01:16 - 11.198 if that happens

01:16 - 14.369 based on the purely technical objections that they've raised.

01:16 - 17.271 All that's going to happen is the court enters

01:16 - 20.442 the same findings and incorporates the

01:16 - 23.411 thorough discussion

01:16 - 25.814 included in its 1925 opinion.

01:16 - 29.251 So I think and I'll go through some of the

01:16 - 32.620 the other tactics that were employed in this case,

01:16 - 38.026 we see it's a transparent stall campaign.

01:16 - 41.597 But let's start first with the issue of no jurisdiction.

01:16 - 43.598 Commonwealth was pretty quick to say

01:16 - 46.100 that it's clear that there was no jurisdiction

01:16 - 48.135 for the trial court to enter its final order.

01:16 - 50.205 It is absolutely incorrect.

01:16 - 52.708 They do not deal with the

01:16 - 54.942 Pennsylvania Rule of Appellate Procedure.

01:16 - 57.111 1701b6.

01:16 - 00.581 That case, that rule explicitly authorizes

01:17 - 03.084 the trial court to proceed in a case

01:17 - 07.422 where a notice of appeal has been filed in connection

01:17 - 10.258 a non appeal able interlocutory order.

01:17 - 14.496 The one case that they cite on that issue, Harrison,

01:17 - 15.097 and you heard it

01:17 - 19.166 mentioned a few minutes ago that, was not a 1701d6 case.

01:17 - 21.670 That was a case where there was a final order entered.

01:17 - 23.771 It was appealed.

01:17 - 26.541 Therefore, under 1701, a

01:17 - 29.411 it divested to the trial court of jurisdiction.

01:17 - 32.246 And then you get into when does the record get remanded?

01:17 - 34.549 When does the trial court resume jurisdiction?

01:17 - 36.651 What we have here is jurisdiction

01:17 - 39.053 never left the trial court.

01:17 - 41.022 We don't have to guess at whether or not

01:17 - 42.023 this was a non appeal able

01:17 - 45.994 interlocutory order that was expressly raised decided

01:17 - 50.031 and addressed thoroughly by Judge Pellegrini

01:17 - 54.703 in an earlier opinion in this same case.

01:17 - 57.606 So simply put, there's

01:17 - 00.942 there's no question that there was jurisdiction.

01:18 - 05.080 The question that the court may ask is, will it

01:18 - 08.550 why did the trial court wait and file

01:18 - 12.521 its findings so quickly after the quashing order?

01:18 - 16.758 It's not because the trial court believed that the quash order

01:18 - 18.559 returned jurisdiction.

01:18 - 20.528 It's because there was a stay in place.

01:18 - 23.665 The Commonwealth recognized that it needed to obtain a stay

01:18 - 25.599 when it appealed the interlocutory order

01:18 - 29.237 because it did not divest the the trial court of jurisdiction.

01:18 - 31.472 So there was no automatic stay.

01:18 - 33.708 So they did take affirmative action.

01:18 - 35.376 They were successful in that.

01:18 - 38.279 And the superior court granted a temporary

01:18 - 41.950 stay pending disposition of that interlocutory order.

01:18 - 45.152 So when the

01:18 - 46.854 when Judge Pellegrini

01:18 - 49.523 issued his opinion explaining thoroughly why

01:18 - 51.760 the superior court did not have jurisdiction

01:18 - 55.997 to address the interlocutory order,

01:18 - 00.701 the stay automatically terminated

01:19 - 05.941 and the trial court was free to resume in with proceedings.

01:19 - 09.443 And the trial court waited until the superior court said

01:19 - 12.214 it was interlocutory, right? Correct. Correct.

01:19 - 14.483 I mean, I don't believe that it needed, but it

01:19 - 16.785 what it needed to do is wait for disposition.

01:19 - 17.986 And that's not

01:19 - 20.655 because of any rule of civil procedure, that just because

01:19 - 25.060 there was a order of stay in place until disposition.

01:19 - 28.463 So as soon as disposition occurred, trial court was free

01:19 - 31.433 to enter its order.

01:19 - 35.903 What I think we also see

01:19 - 40.142 and heard here is a pattern of judge shopping.

01:19 - 44.445 So as soon as Judge C bam the Commonwealth perceived

01:19 - 46.447 that it wasn't doing well in front of her.

01:19 - 48.649 They filed a motion for recusal.

01:19 - 51.051 They do everything they can to get in front of another judge.

01:19 - 53.755 They want to basically tie up,

01:19 - 56.924 put that case on the backburner, file criminal charges

01:19 - 58.125 and hopefully,

01:19 - 00.761 you know, get a criminal judge that's going to

01:20 - 02.196 find the way that they want to.

01:20 - 04.932 So they file criminal charges.

01:20 - 06.535 We proceed in the criminal case.

01:20 - 10.305 They complain that that

01:20 - 13.440 ultimately charges were dismissed in those cases

01:20 - 17.512 because collateral estoppel effect of judge C bum's ruling.

01:20 - 19.647 But I would note that

01:20 - 22.717 we sought a stay of the criminal proceedings so that

01:20 - 26.888 all objections to Judge Seebohm could work its way through

01:20 - 30.090 that was rejected and opposed by the Commonwealth.

01:20 - 31.292 The reason for that is obvious

01:20 - 34.461 because they wanted to keep the two matters separate

01:20 - 36.130 and they were hoping to push forward

01:20 - 37.698 and get a decision from Judge Mark

01:20 - 39.700 that would be in their favor.

01:20 - 40.868 It didn't work out that way.

01:20 - 42.304 And in fact,

01:20 - 45.340 when we had our final hearing in that criminal case

01:20 - 46.774 at the last minute,

01:20 - 49.678 the Commonwealth filed another motion for recusal

01:20 - 53.647 as to Judge Mark and in fact filed a motion for recusal

01:20 - 56.051 as to the entire bench, Monroe County.

01:20 - 00.120 Now, all arguments in this case where they argue

01:21 - 01.856 there's no jurisdiction tie back

01:21 - 05.293 to collaterally attacking Judge Pellegrini's

01:21 - 08.129 well-thought out well explained decision

01:21 - 11.198 that 311 did not apply because double

01:21 - 12.667 jeopardy was not implicated

01:21 - 15.736 in that procedural posture.

01:21 - 17.204 Unhappy with that.

01:21 - 19.139 They're now trying to go to a different court,

01:21 - 23.510 this panel, to enter a ruling that would require implicit

01:21 - 27.414 overruling of that decision without even acknowledging that

01:21 - 35.023 that is, in fact, what they're doing doing.

01:21 - 38.193 I would also note the criminal charge

01:21 - 40.027 that you heard a lot about,

01:21 - 43.063 the importance of these criminal charges and the 311.

01:21 - 45.734 D was tied to criminal charges.

01:21 - 50.272 You know that there's this quasi criminal proceeding

01:21 - 52.573 that was in front of Judge seven, but criminal charges.

01:21 - 55.009 Criminal charges.

01:21 - 56.343 As opposing counsel noted,

01:21 - 58.312 those criminal charges were dismissed.

01:21 - 00.381 The Commonwealth filed an appeal.

01:22 - 02.651 Briefing schedule was issued in that case.

01:22 - 05.287 The briefing deadline was October 2nd.

01:22 - 07.989 As of today, no brief has been filed.

01:22 - 11.859 So I think it's fair to expect that those appeals

01:22 - 13.360 are going to be dismissed.

01:22 - 16.563 So I think that issue goes away and shows that it's really

01:22 - 19.901 just a weapon to try to confuse things, muddy the waters,

01:22 - 23.771 not to obtain relief in their favor,

01:22 - 26.408 just to continue to stall proceedings, because

01:22 - 30.979 it's clear that what is not at issue in this case

01:22 - 33.113 are the substantive merits.

01:22 - 35.951 There is no challenge to any of the findings

01:22 - 38.919 in the court's order.

01:22 - 43.891 They did not include them in their 1925 statement,

01:22 - 46.894 manifesting that this was not an oversight

01:22 - 48.462 but an intentional waiver

01:22 - 52.367 in their Rule 2154 designation of issues to be briefed.

01:22 - 56.404 They included a subset of challenged the court's

01:22 - 58.072 subset of findings.

01:22 - 00.307 So what happens after this?

01:23 - 00.976 They didn't raise

01:23 - 03.545 any of the substantive issues, the merit, correct?

01:23 - 06.982 If we say the trial court acted properly,

01:23 - 10.651 then it then it stands there.

01:23 - 13.221 They were required to return the devices.

01:23 - 16.557 There's a whole separate issue of of whether

01:23 - 19.561 the Monroe County will abide by court orders.

01:23 - 22.329 We've run into that on multiple occasions.

01:23 - 26.434 But after more than two years, the appellees

01:23 - 31.272 that depend on these legal devices for income get them back

01:23 - 34.609 if they ever institute forfeiture proceedings.

01:23 - 39.881 After they took the machines, they did not hold briefing.

01:23 - 41.782 There was an invitation to do.

01:23 - 43.450 So they declined to do

01:23 - 46.820 so with the only explanation being that they didn't have to.

01:23 - 48.323 They didn't feel they needed to.

01:23 - 51.826 They delayed proceedings, saying that they were conducting

01:23 - 54.762 more and more investigations they couldn't commit to whether

01:23 - 56.797 they were ever going to file criminal charges.

01:23 - 00.834 Suddenly, Judge Sidebar issued some rules to show cause

01:24 - 04.239 to kind of nail down exactly what's happening in this case

01:24 - 07.675 briefing on whether forfeiture petition needed to be filed.

01:24 - 11.379 Lo and behold, on the day before that deadline,

01:24 - 14.482 they decide now they've got to file criminal charges.

01:24 - 17.252 They don't like how things are going in front of Judge seven.

01:24 - 19.119 They want to try to complicate things.

01:24 - 21.288 They want to get in front of another judge,

01:24 - 23.390 and that was their vehicle for doing so.

01:24 - 25.827 They just briefly addressed the second issue.

01:24 - 30.298 It makes I have a hard time understanding

01:24 - 33.434 the genuinely the argument.

01:24 - 37.972 I mean, Judge Seebohm wrote findings that

01:24 - 41.375 felt that supported

01:24 - 44.112 and return of the devices finding them to be legal.

01:24 - 48.148 First, this argument about there wasn't sufficient reasoning

01:24 - 51.885 stated in the order would apply only to the suppression issue.

01:24 - 55.790 At best, it has no effect on the finding

01:24 - 58.560 with respect to legality of the devices,

01:24 - 00.861 but more importantly

01:25 - 03.430 on May 19th, the trial court issued

01:25 - 06.401 a 23 page opinion going above and beyond.

01:25 - 08.268 It found it found waiver.

01:25 - 09.970 It found all these things the Commonwealth did wrong,

01:25 - 12.039 but still out of an abundance of caution,

01:25 - 14.109 gave its reasoning for everything that it did

01:25 - 19.012 between then and when the Commonwealth filed its appellate

01:25 - 24.119 brief on August 12th or 16th, they had plenty of time.

01:25 - 26.187 They didn't only have the

01:25 - 30.225 opportunity, I believe the obligation to brief

01:25 - 33.460 any issues that they have

01:25 - 36.730 with the findings in that as spelled out

01:25 - 39.701 in those opinions and the rules for appellate procedure out,

01:25 - 43.071 you know, if you get an order that doesn't give enough detail,

01:25 - 45.874 that doesn't leave the appellate with

01:25 - 50.311 without recourse it that happens

01:25 - 54.348 and when it happens the appellant is to generally

01:25 - 56.250 state what their issues are.

01:25 - 57.985 Explain that they can't give more detail

01:25 - 00.454 because of the lack of detail

01:26 - 03.056 that notifies the trial court what issues

01:26 - 03.858 it's supposed to cover.

01:26 - 05.894 And it's in its 1925 opinion.

01:26 - 09.763 Those things together create a record

01:26 - 12.966 for meaningful review by an appellate court judge.

01:26 - 16.570 Seebohm held up her end of that arrangement.

01:26 - 18.438 She issued a thorough opinion.

01:26 - 21.775 It's the Commonwealth that, as you heard, intentionally

01:26 - 25.380 chose to for ego that they're the ones that have deprived.

01:26 - 28.515 If there's an inability address

01:26 - 32.086 any of these substantive issues, that's all self inflicted harm

01:26 - 36.623 committed by the Commonwealth.

01:26 - 38.893 So if there are no

01:26 - 40.794 questions, I yield

01:26 - 43.431 first of my time.

01:26 - 44.866 Thank you.

01:26 - 46.901 Thank you very much.

01:26 - 48.403 Thank you, Your Honor.

01:26 - 51.505 I'm rapidly becoming an old lawyer

01:26 - 53.640 and probably not a very sophisticated one.

01:26 - 54.975 But I was always taught

01:26 - 57.078 to argue the facts and the law and not attack

01:26 - 58.246 opponent's motives.

01:26 - 00.715 So I'm not going to go there, but I'm disappointed in

01:27 - 02.883 what I will say, though.

01:27 - 05.052 Are you asking us to reach a different result

01:27 - 08.856 in this superior court on the appellate ruled 311 issue

01:27 - 10.124 and you wouldn't

01:27 - 12.359 we have to reach a different result

01:27 - 15.230 in order to reverse that you don't order

01:27 - 17.531 you can vacate the order for lack of jurisdiction.

01:27 - 19.932 Because one aspect when we said what's going to be different,

01:27 - 22.469 there's one thing that could be different

01:27 - 23.171 with respect,

01:27 - 26.240 and that is the Supreme Court could grant our appeal.

01:27 - 28.008 The Supreme Court could find merit to it.

01:27 - 29.343 The Supreme Court could,

01:27 - 31.111 using the dictates of Commonwealth versus

01:27 - 33.647 white order recusal of judge c Obama

01:27 - 35.682 and we could get a brand new hearing with a brand new judge.

01:27 - 37.763 Those are significant factors that could still occur.

01:27 - 41.923 But how would that enable us to reverse

01:27 - 45.459 February 8th order on the basis that the trial court

01:27 - 47.160 lacked jurisdiction?

01:27 - 47.629 I believe

01:27 - 48.895 it would enable you to do so

01:27 - 51.866 because the pending petition for allowance of appeal deprives

01:27 - 53.333 lower court of jurisdiction as simple

01:27 - 55.703 as the pending petition for allowance of appeal.

01:27 - 58.205 Because the record has not been returned,

01:27 - 00.140 it is as clear as that.

01:28 - 01.742 If I'm wrong, then I'm wrong.

01:28 - 02.577 But I believe it.

01:28 - 05.746 Is that clear for the for the reasons stated

01:28 - 08.049 in cases like Harris and others, including this court,

01:28 - 11.918 an unpublished opinion as well.

01:28 - 13.754 So there are reasons to believe

01:28 - 15.989 that the lower court had no jurisdiction.

01:28 - 21.229 And that is the only issue was here is the case under 1701b6

01:28 - 22.829 do not recall her speaking here,

01:28 - 24.966 but I believe that this same principles apply.

01:28 - 27.402 The return of the record is the return of the record.

01:28 - 30.538 And the Supreme Court could take a different approach here

01:28 - 32.839 for the reasons expressed in Harris, Judge.

01:28 - 35.142 See man could then be acting on an appellate decision.

01:28 - 36.610 That isn't the final word in the case,

01:28 - 38.712 meaning Judge Pellegrini's decision.

01:28 - 40.213 We have a right to have that decision

01:28 - 41.715 at least potentially review.

01:28 - 43.817 And until that right is concluded

01:28 - 45.987 through the appropriate process is granted to us.

01:28 - 48.723 Judge seven does not have jurisdiction should not invite.

01:28 - 50.457 We would have to then find that

01:28 - 52.727 this was not an interlocutory order.

01:28 - 54.127 Yes, sir.

01:28 - 55.963 Thank you, Your Honor.

01:28 - 59.033 Thank you very much.

01:28 - 02.703 This case concerns the statue of Christopher Columbus

01:29 - 06.140 in Schenley Park on City of Pittsburgh owned land.

01:29 - 10.744 The statue was constructed via a 1955 ordinance

01:29 - 13.581 granting the Sons of Columbus and its successors

01:29 - 16.084 the right to erect and maintain the statue.

01:29 - 19.554 Appellant, Italian sons and daughters of America

01:29 - 22.557 sought to enjoy in the city from removing the statue,

01:29 - 26.160 claiming to be a successor to the Sons of Columbus.

01:29 - 30.063 Before this court, appellant appeals the trial court's

01:29 - 33.034 order, sustaining the city's preliminary objections

01:29 - 36.337 on the basis that removal of the statue consists.

01:29 - 40.273 I'm sorry constitutes government speech and appellant lacks

01:29 - 43.844 standing to present a viable claim.

01:29 - 45.779 Appellant argues that while the city

01:29 - 48.950 has a free speech right, the right is not unchecked

01:29 - 52.220 and it must adhere to local ordinances and state law.

01:29 - 54.454 Appellant claims that is challenging

01:29 - 57.525 the process used to effectuate removal of the statute

01:29 - 00.895 which violated city's home charter rule.

01:30 - 03.631 I'm sorry, cities home rule charter.

01:30 - 06.800 Further, appellant argues it has standing

01:30 - 10.237 as the named successor to the Sons of Columbus.

01:30 - 12.373 The city argues, among other things,

01:30 - 15.809 that a fair reading of the Home Rule Charter shows that

01:30 - 19.547 the act of removing the statue would be a function properly

01:30 - 22.883 under the executive authority of the mayor and that the city

01:30 - 25.987 followed the proper process to effectuate that removal.

01:30 - 29.257 With that, let's go to argument.

01:30 - 32.692 Respectfully, Your Honor.

01:30 - 35.562 My name is George Picardo, and I am appearing here

01:30 - 38.866 on behalf of the Italian Sons and Daughters of America.

01:30 - 40.901 And I would first like to point out

01:30 - 44.505 that it is my privilege to be here in front of this court

01:30 - 47.408 once again, particularly on bonk.

01:30 - 51.612 I'd like to reserve 3 minutes of rebuttal, if I may.

01:30 - 54.015 You certainly may.

01:30 - 57.919 I'm going to start by

01:30 - 00.120 describing what is clearly

01:31 - 05.258 the essence of the lower court's opinion, both its main opinion

01:31 - 07.895 and in granting the preliminary objections.

01:31 - 09.663 Stand that I.

01:31 - 12.500 I think that we have to talk about standing first.

01:31 - 13.868 All right.

01:31 - 17.538 Because all the other issues might be resolved.

01:31 - 20.373 How does your client have standing?

01:31 - 22.810 I'm I'm delighted to address that.

01:31 - 27.881 I will note the lower court never analyzed a standing,

01:31 - 30.718 although it has been raised in the appellate briefs.

01:31 - 33.588 And we can resolve it de novo.

01:31 - 35.388 Yes, absolutely.

01:31 - 37.224 I think that's an important issue to address.

01:31 - 39.459 First Thank you very much.

01:31 - 41.729 Standing exists here almost

01:31 - 44.397 identically because

01:31 - 46.934 of the standing that was found to exist

01:31 - 51.772 in the Marconi Plaza case, which was a Commonwealth Court case.

01:31 - 56.410 We're standing was found concerning the attempted removal

01:31 - 57.612 of Columbus

01:31 - 01.182 statute in Marconi Plaza in Philadelphia, Pennsylvania.

01:32 - 06.754 There I represented the Friends of Marconi Plaza.

01:32 - 11.325 That was a community group that was involved directly

01:32 - 14.961 in caring for the statute, conducting parades

01:32 - 16.463 at the statute,

01:32 - 20.501 enjoying their ethnicity in the park with the statue.

01:32 - 25.439 And this court ruled that that set of facts

01:32 - 28.910 signal never gently and directly impacted

01:32 - 32.880 that entity, both with direct standing

01:32 - 37.618 and with derivative standing, because there was

01:32 - 40.555 there were individuals in that case

01:32 - 43.858 that were part of that group that lived

01:32 - 47.962 and regularly visited and cared the statute.

01:32 - 52.433 Isn't the evidence in this case so much different?

01:32 - 56.469 There is a person who occasionally goes and cleans

01:32 - 57.572 up around the statue.

01:32 - 59.774 Why would that

01:32 - 03.010 bring your group into standing here?

01:33 - 04.778 Well, I think that it's really based

01:33 - 06.346 on a handshake and an agreement,

01:33 - 08.114 nothing written, nothing anywhere.

01:33 - 12.253 So I think the Marconi Plaza case is much different.

01:33 - 14.187 Well, with all due

01:33 - 17.758 respect, Your Honor, I think the fact that Mr.

01:33 - 20.860 Ferreiro in this case, who testified that

01:33 - 23.364 he once a month visits the site,

01:33 - 26.499 they care for it, they conduct their campaigns.

01:33 - 29.869 But here's a significant fact present here

01:33 - 33.273 that was not present in the Marconi Plaza case,

01:33 - 35.710 which I believe supports standing

01:33 - 39.413 the Sons of Columbus

01:33 - 42.582 to from which we are

01:33 - 46.354 the successor organization, the Sons of Columbus.

01:33 - 50.190 Actually, by contrast, your successor organization

01:33 - 54.061 by a handshake for the most part in terms of this statute,

01:33 - 57.330 well, by handshake and also assumption of duties

01:33 - 59.232 and responsibilities, Your Honor.

01:33 - 01.869 I mean, the Sons of Columbus cared for

01:34 - 04.705 regularly this statute in Schenley Park.

01:34 - 06.207 So does the

01:34 - 10.277 current Italian sons and daughters of America.

01:34 - 11.945 And we've been doing that.

01:34 - 12.847 And there's nothing

01:34 - 16.917 in the record to contradict the fact that we still do that.

01:34 - 22.422 But bear this in mind, Judge Fischler, Sons of Columbus,

01:34 - 26.360 entered into a contract with the city of Pittsburgh

01:34 - 30.831 as memorialized by Ordinance 198

01:34 - 34.300 to erect this statue.

01:34 - 38.738 And here was the contract Sons of Columbus said will erect.

01:34 - 40.874 It will pay for it will do everything

01:34 - 43.711 we need to do to install it in this location.

01:34 - 47.681 The city, in their obligation, said,

01:34 - 50.618 once you do that, we will maintain it.

01:34 - 55.122 So in addition, judge, to the kind of Marconi

01:34 - 58.092 standing because of the

01:34 - 01.962 relationship to the park and the statue itself,

01:35 - 06.333 we're actually a party, we're contractual party to this deal.

01:35 - 09.036 Well, didn't you assuming it was a contract,

01:35 - 13.507 the contract ended and any obligations by

01:35 - 16.609 the prior organization.

01:35 - 18.713 It ended when the city maintained

01:35 - 21.347 and control of the statute.

01:35 - 24.651 There was no no, that's not correct, Judge, with all due

01:35 - 30.057 respect, the ordinance imposes the ongoing obligation

01:35 - 33.961 of the city of Pittsburgh to maintain that statute.

01:35 - 36.329 It's not a one and done.

01:35 - 38.932 Once it's installed, they do something

01:35 - 41.068 and then they're obligations are complete

01:35 - 43.471 under the ordinance, under the contract.

01:35 - 47.108 To this day going forward, they are obligated

01:35 - 51.312 to maintain that statue and that's it.

01:35 - 55.381 Are you saying then that the the government has absolutely

01:35 - 58.451 no right to remove that statue under any circumstances?

01:35 - 01.956 I'm not saying that I'm I'm positively not saying that.

01:36 - 06.761 But what I am saying is that there are strictures

01:36 - 10.029 that apply here and that gets me back

01:36 - 13.267 to the essence of the lower court's ruling.

01:36 - 14.667 If you get to that

01:36 - 17.837 and just continue our discussion on this ordinance, number

01:36 - 19.072 198, Mr.

01:36 - 22.176 Ricardo, it says that the Sons of Columbus of America

01:36 - 24.611 and its successors have the right to erect

01:36 - 25.812 and construct a memorial.

01:36 - 28.682 And so is it your position that this particular

01:36 - 31.751 then continues

01:36 - 34.521 to be fought under the statute?

01:36 - 36.489 Because the issue is whether it should be

01:36 - 38.759 disassembled and taken away. Yes.

01:36 - 39.860 And construction?

01:36 - 42.263 Yes, absolutely. Absolutely.

01:36 - 46.200 And that is of critical importance in this case.

01:36 - 48.835 Could you just describe a little bit more in detail

01:36 - 51.004 how it is that your group is a successor

01:36 - 53.374 to the Sons of Columbus of America,

01:36 - 56.777 the Sons of Columbus of America dissolved.

01:36 - 59.445 And in their dissolution process.

01:36 - 00.880 There was an agreement reached

01:37 - 02.415 and this is all a matter of record.

01:37 - 03.250 Below

01:37 - 04.517 an agreement was reached

01:37 - 05.585 between the leadership

01:37 - 08.021 of the Sons of Columbus and the leadership

01:37 - 10.658 of the Italian sons and Daughters of Italy.

01:37 - 15.529 That the latter organization would succeed to their right

01:37 - 19.399 and to their responsibilities and to carry

01:37 - 22.870 on the organization and the purposes and the goals.

01:37 - 24.738 Originally

01:37 - 26.807 postulated by the Sons of Columbus

01:37 - 32.112 through the Italian Sons and Daughters of America.

01:37 - 35.849 Nothing like this is in writing, though.

01:37 - 37.885 Well, there is nothing in Rome.

01:37 - 38.985 For what? No.

01:37 - 43.723 There was no formal successor type contract or agreement.

01:37 - 45.291 That's true. Your Honor.

01:37 - 48.529 But I would submit that in Pennsylvania,

01:37 - 53.901 oral contracts are enforceable, perfectly recognized as valid.

01:37 - 57.605 There's no disputing on the record that there was such

01:37 - 00.841 an oral understanding and successor ship.

01:38 - 04.278 And I would also point out to you, of course, of practice

01:38 - 07.248 ever since that happened, many years ago, Judge,

01:38 - 11.285 this time sons and daughters of Italy have carried out

01:38 - 14.922 all of the responsibilities of the Sons of Columbus.

01:38 - 19.093 But Here's where and if I may.

01:38 - 21.394 Here's where I think the lower court

01:38 - 25.332 really misperceived what the issue is

01:38 - 28.268 in its main opinion.

01:38 - 32.438 And in its 1925 opinion, the lower court says

01:38 - 33.940 the following.

01:38 - 36.810 Justice Alito's opinion in Summon

01:38 - 39.980 effectively gives the city of Pittsburgh

01:38 - 42.950 free rein to remove the Columbus statute.

01:38 - 46.386 And he says that because the city of Pittsburgh,

01:38 - 49.589 like every city, has a governmental speech.

01:38 - 50.590 Right.

01:38 - 53.559 But here's what Judge McVeigh failed

01:38 - 56.130 to recognize and failed to distinguish, which

01:38 - 01.268 the city of Pittsburgh is, not just the mayor.

01:39 - 04.871 There is a legislature.

01:39 - 07.508 The legislature the city council

01:39 - 10.945 also has a right to government speech.

01:39 - 15.215 And they have exercised that government speech

01:39 - 18.319 when they ordinance 198.

01:39 - 23.289 They said we are going to allow this monument to be erected.

01:39 - 26.693 An ordinance doesn't appear on the books.

01:39 - 27.794 It's it.

01:39 - 30.730 And could it be considered a resolution which doesn't

01:39 - 35.235 have the same legislative or impact on the government?

01:39 - 37.871 With all due respect, Judge, I.

01:39 - 39.939 I disagree with that.

01:39 - 41.074 It is an ordinance.

01:39 - 42.942 It's dubbed an ordinance.

01:39 - 46.747 It was legislated in the perfectly same manner

01:39 - 49.949 that all order or other ordinances are

01:39 - 52.986 legislated is not simply a resolution.

01:39 - 54.887 Resolutions come and go.

01:39 - 56.956 And by the way, that's a major distinction

01:39 - 00.094 in the Taylor case, which the lower court relies on.

01:40 - 05.064 That case only involved a resolution which.

01:40 - 05.733 I would agree.

01:40 - 06.766 Your Honor,

01:40 - 10.137 if this were just a resolution, it would be a different case.

01:40 - 11.871 But it's not a resolution.

01:40 - 15.409 It's an ordinance, an expression by Pennsylvania

01:40 - 19.112 I'm sorry, the Pittsburgh Council of their government

01:40 - 22.182 speech that we want Columbus statute in Schenley Park

01:40 - 25.352 having your I'm is it.

01:40 - 29.189 No no I just going to follow up is it your position then

01:40 - 32.826 that in order to properly remove the statue,

01:40 - 36.563 the mayor and the city council

01:40 - 40.400 must repeal the ordinance number 198

01:40 - 43.837 and then the art commission as well would have to vote

01:40 - 45.405 to remove the statue.

01:40 - 48.175 It's exactly what should have taken place.

01:40 - 50.644 Judge, if they want to remove the statue,

01:40 - 54.213 importantly, city

01:40 - 57.251 hasn't vacated ordinance 198.

01:40 - 59.185 By the way, this case has been going on

01:40 - 00.586 for two and a half years.

01:41 - 05.292 They still have not vacated ordinance 198.

01:41 - 09.430 And so we have here, Judge Eisler and your honors,

01:41 - 13.700 a classic clash of separation of powers.

01:41 - 15.868 We have an executive

01:41 - 19.672 who's attempting to undo or repeal the free speech

01:41 - 21.207 or the governmental speech rights

01:41 - 23.709 already expressed by the legislature.

01:41 - 25.478 Summon Taylor.

01:41 - 28.048 All the cases relied on by Judge McVey

01:41 - 31.485 all involved a unanimity

01:41 - 35.155 of both the executive and legislative branches.

01:41 - 37.356 So that's what I understand.

01:41 - 41.095 Your basic I mean, your argument about standing as a successor

01:41 - 42.728 set aside.

01:41 - 44.897 It's just that you're not, as you said earlier,

01:41 - 45.833 you're not trying to say

01:41 - 46.933 they can never remove it,

01:41 - 50.036 but they have to go through the proper procedures to do that.

01:41 - 52.271 And that has not been done in this case.

01:41 - 53.473 Your position?

01:41 - 55.475 Yes, very simple. Straightforward.

01:41 - 56.909 I think that you're saying

01:41 - 59.011 they have to do that, which would include

01:41 - 01.314 public notice opportunity for hearings

01:42 - 04.151 before they do anything to to vacate the ordinance.

01:42 - 06.486 You're exactly on point, Judge.

01:42 - 09.822 And that's exactly what some in the preservation

01:42 - 14.161 of the historic and whatever value of the of the statue.

01:42 - 16.797 That's the process judgment that.

01:42 - 17.865 That's exactly right.

01:42 - 20.567 Your judgment they if you read his opinions

01:42 - 22.335 he says everything else

01:42 - 24.438 goes out the window, everything is moot.

01:42 - 27.039 If the mayor wants to remove the statute, that's it.

01:42 - 29.443 Nothing else to discuss. That's wrong.

01:42 - 32.713 And by the way, this case is not moot.

01:42 - 35.882 And if it were moot,

01:42 - 39.185 my esteemed opposing counsel would not be sitting

01:42 - 40.386 in this chair.

01:42 - 43.956 They are still arguing in favor of Judge Mcvey's

01:42 - 47.861 dismissal of the injunction that we obtained below,

01:42 - 51.899 which keeps the Columbus statute in Schenley Park.

01:42 - 52.766 Mr. Bricker,

01:42 - 55.301 could you address the last sentence of Section

01:42 - 57.170 one of Ordinance 198, which would

01:42 - 59.373 which provides the erection of this memorial

01:42 - 02.542 shall be under supervision, subject to the direction

01:43 - 04.243 and control of the Director

01:43 - 06.579 of the Department of Parks and Recreation,

01:43 - 08.748 along with subsection C.

01:43 - 11.552 It says maintenance be borne by the city.

01:43 - 12.352 Does that

01:43 - 16.156 does that not give the authority to the Department of Parks

01:43 - 19.959 to do with the statue what they so desire

01:43 - 21.861 in the department parks is the mayor?

01:43 - 23.563 Well, yes, the Department of Parks

01:43 - 25.097 is part of the executive branch.

01:43 - 30.136 But I believe that section clearly and unmistakably relates

01:43 - 33.640 to the manner of erection and the manner of going about

01:43 - 37.611 placing the statue in Schenley Park, the once it's placed.

01:43 - 40.046 End of story.

01:43 - 41.681 And it may be up to

01:43 - 45.219 the Department of Public Works to continue the maintenance.

01:43 - 47.620 For example, if somebody comes by

01:43 - 49.823 and graffiti date or that type of thing,

01:43 - 52.358 they would have an obligation to remove that graffiti.

01:43 - 53.659 But I do not believe

01:43 - 56.195 that language says they can just willy

01:43 - 57.763 nilly remove it whenever they want.

01:43 - 01.000 Under that provision, can Department of Parks move

01:44 - 03.370 the the statue elsewhere in the in Shirley Park?

01:44 - 08.942 That's a very good question, George.

01:44 - 11.444 You know,

01:44 - 15.414 it may be that they could, if it were to be moved

01:44 - 19.086 within Schenley Park, I think that would also comport it

01:44 - 22.154 with the constitutional the Pennsylvania

01:44 - 25.058 constitutional implication that exists in this matter,

01:44 - 27.527 which is the public trust doctrine.

01:44 - 29.296 I think it would

01:44 - 32.165 it might be judge that could move it,

01:44 - 34.767 but that's not what the city wants to do.

01:44 - 36.435 They want to remove it.

01:44 - 37.770 They don't want to just move it.

01:44 - 39.071 I see my. Time is up.

01:44 - 41.173 Happy to answer any other questions.

01:44 - 42.942 Back in a few minutes for my rebuttal.

01:44 - 47.513 Thank you so much.

01:44 - 48.881 Thank you, Your Honor.

01:44 - 50.951 Julie Korn, on behalf of the City of Pittsburgh,

01:44 - 54.888 I would submit to your honors that the city of Pittsburgh

01:44 - 58.491 is permitted to remove the statue

01:44 - 01.495 because it is a matter of govern

01:45 - 05.398 the city mayor with council approval.

01:45 - 06.732 Well, mayor with council approval

01:45 - 08.901 because he was the elected mayor of the city of Pittsburgh

01:45 - 10.369 at the council approval,

01:45 - 12.838 there was no submission to the council.

01:45 - 15.274 But in this particular case, I would submit to you

01:45 - 16.842 that assuming the Council

01:45 - 19.579 approval was necessary is an over reading of the rules.

01:45 - 22.481 There's there was a process in place.

01:45 - 24.483 I'm sorry, didn't you just say with council,

01:45 - 26.319 with council's approval, though?

01:45 - 28.187 Yeah, that's if I did. I was I misspoke.

01:45 - 28.755 I apologize.

01:45 - 32.693 You did okay there, I would say with a process in place.

01:45 - 35.861 So the process that was afforded in this particular case

01:45 - 36.763 and I would say the city

01:45 - 39.799 of Pittsburgh took great care with this, was to observe

01:45 - 42.703 that there was a call and a reason under.

01:45 - 46.073 Mayor Pugh those guidance to remove particular statue.

01:45 - 47.773 He contacted the art commission.

01:45 - 50.077 The commission also contacted him.

01:45 - 52.244 The art commission was put into place

01:45 - 55.482 by enabling legislation through the city of council

01:45 - 59.051 many years ago, and Mayor Pluto was the elected mayor

01:45 - 59.653 at the time.

01:45 - 03.489 After these exchanges of letters occurred, there were multiple

01:46 - 04.424 public hearings.

01:46 - 08.194 Was there any formal delegation by city council

01:46 - 10.230 to the art commission? No, Your Honor.

01:46 - 12.332 No, Your Honor.

01:46 - 14.768 But I would submit that that was not required.

01:46 - 17.470 The argument about requiring this

01:46 - 20.106 to be considered as an ordinance and a binding ordinance

01:46 - 23.709 that lasts forever is inaccurate because.

01:46 - 26.712 It is an ordinance that essentially we've complied with.

01:46 - 28.481 It is essentially a resolution.

01:46 - 30.249 And that's what it would be considered today

01:46 - 32.284 as a memorialization of a gift.

01:46 - 34.854 There's really no other way to read that ordinance.

01:46 - 36.256 And it's not, as you mentioned,

01:46 - 38.257 just the last lines of the ordinance,

01:46 - 41.128 but the approval of the design and the placement.

01:46 - 43.496 There's nothing in the ordinance that requires

01:46 - 46.132 the city of Pittsburgh to display this forever,

01:46 - 48.201 but it does have a maintenance requirement

01:46 - 50.970 and it has been maintained by the city.

01:46 - 53.506 And I would submit not by the plaintiff or the appellants.

01:46 - 56.143 In this particular case. Yes, go ahead.

01:46 - 58.911 Who has the title of the statue?

01:46 - 01.147 I believe the city of Pittsburgh owns it.

01:47 - 04.083 And that's clear from from a reasonable

01:47 - 05.051 reading of the ordinance.

01:47 - 08.621 Even if it were to be construed as a contract,

01:47 - 12.558 there is no party that would enter into an or an agreement

01:47 - 15.694 to take someone else's property and maintain it forever in

01:47 - 18.798 exactly the way the other party wants it to be maintained.

01:47 - 19.366 I mean, that

01:47 - 20.399 that could definitely happen,

01:47 - 21.867 but I don't think that that would be a reasonable

01:47 - 24.438 reading of an ordinance in this particular case.

01:47 - 26.338 We do have an ordinance on the books.

01:47 - 30.242 So I understand the city saying and the Travers saying

01:47 - 32.178 this is a government speech. They disagree.

01:47 - 33.379 But in front of Marconi,

01:47 - 35.882 our court said that doesn't that's not the issue.

01:47 - 39.285 You don't remove it because you don't agree with the message.

01:47 - 41.353 It's a historic preservation issue.

01:47 - 42.688 It's an ordinance issue.

01:47 - 44.890 It's a procedural issue.

01:47 - 47.359 You have an ordinance on the books

01:47 - 50.263 to say, oh, we can just take it down

01:47 - 53.566 without addressing ordinance on the books.

01:47 - 57.537 Which does not say you can take it down at any time,

01:47 - 01.640 doesn't remove it from the procedural requirements

01:48 - 05.644 that are inherent here, and that is what I understand

01:48 - 09.381 their position to be, is that you have to follow the procedure

01:48 - 13.653 to now impact that ordinance by vacating it, whatever

01:48 - 15.821 which may or may not happen.

01:48 - 18.792 So there are multiple issues, I believe,

01:48 - 20.759 tied up in that question.

01:48 - 22.895 And comparing to the case of Marconi

01:48 - 25.332 Plaza is a good way to examine those.

01:48 - 26.732 In that particular case, I believe

01:48 - 28.767 the statue was designated as historic.

01:48 - 30.970 The statute in this case, as far as I understand

01:48 - 33.406 it, is not designated as a historic object.

01:48 - 35.641 There was a procedure. I don't know.

01:48 - 37.710 I mean, the public trust doctrine

01:48 - 40.279 is what they're arguing. And that's one. Yes, I agree.

01:48 - 42.181 That's one of the issues I don't think it's

01:48 - 47.486 been designated historic statue or building, but it's historic.

01:48 - 47.687 Yeah.

01:48 - 49.188 I mean, that's not a question of.

01:48 - 52.057 Well, I it's a statue of historic figure.

01:48 - 53.125 I'm not sure if the statue in

01:48 - 54.894 and of itself is historic right now.

01:48 - 56.897 But let's focus on the.

01:48 - 57.764 Thank you.

01:48 - 58.665 See, Drew,

01:48 - 00.299 there was a procedure that was afforded

01:49 - 03.402 that is from the home rule charter that

01:49 - 05.906 the Art Commission had multiple public hearings.

01:49 - 08.908 The Art Commission accepted emails,

01:49 - 11.745 examined even comments from the public

01:49 - 14.313 when those public hearings were occurring,

01:49 - 16.315 took that under consideration and voted on it,

01:49 - 17.950 and there was a unanimous vote.

01:49 - 20.052 The comments were both pro and con.

01:49 - 22.087 That is accurate yes.

01:49 - 24.724 And once that procedure occurred, the vote

01:49 - 26.625 was transmitted to the mayor

01:49 - 28.327 and the mayor asked to have the statue removed.

01:49 - 29.262 And then at that point in time,

01:49 - 31.264 we had this particular case that involved Mayor

01:49 - 33.132 ask for another vote or something.

01:49 - 34.366 I believe there were two votes.

01:49 - 36.969 And I. Right.

01:49 - 39.371 There's so much in this case that I just wanted to say that

01:49 - 41.675 I know that the final vote was vote to remove

01:49 - 42.976 the particular statue.

01:49 - 43.976 At issue,

01:49 - 47.980 there's nothing in the arguments of appellants

01:49 - 48.615 that show

01:49 - 50.650 that there was some other mysterious procedure

01:49 - 53.119 that arises from the reading of the Home Rule Charter.

01:49 - 55.354 You have an ordinance?

01:49 - 56.488 I would have an ordinance.

01:49 - 59.125 The question is an interpretation of the ordinance.

01:49 - 02.561 You don't get around that by establishing an art

01:50 - 03.629 commission and saying, oh, now

01:50 - 06.099 the art commission can decide wherever it wants to do.

01:50 - 07.800 Regardless of the fact that there's

01:50 - 10.603 an ordinance on the books you have to address ordinance.

01:50 - 11.770 That's their position.

01:50 - 13.872 And I would respectfully disagree

01:50 - 16.575 that this ordinance had to be repealed in some formal way.

01:50 - 18.878 An ordinance is generally a change to the rules

01:50 - 22.782 that are ongoing, affect what people have to follow as

01:50 - 24.850 essentially the rules of the Commonwealth.

01:50 - 25.884 In this particular case,

01:50 - 28.488 even though it's titled ordinance is from 1955,

01:50 - 29.888 it is a resolution

01:50 - 31.925 memorializing the gift of an object

01:50 - 33.659 of personal property to the city.

01:50 - 35.761 The city has maintained it over time.

01:50 - 38.498 The city has displayed it and the city essentially

01:50 - 40.899 fulfilled all of the requirements

01:50 - 42.067 of the ordinance that

01:50 - 44.270 the Department of Public Works was able to approve.

01:50 - 47.740 The design was able to approve a place for it to be located,

01:50 - 48.974 but there was never

01:50 - 51.144 a requirement for ongoing maintenance.

01:50 - 51.911 There is

01:50 - 53.412 a requirement of maintenance,

01:50 - 55.715 but there's no requirement for display.

01:50 - 59.351 And I would suggest that although this is a case

01:50 - 00.653 from 1955,

01:51 - 02.721 the Home Rule Charter and the rules about second

01:51 - 03.523 class cities

01:51 - 04.957 do not apply to the city of Pittsburgh

01:51 - 07.961 until the 1970s, so reading them together can be difficult.

01:51 - 10.963 Again, the Taylor V Virginia is very instructive

01:51 - 14.466 on the issue of government speech in this particular case,

01:51 - 16.835 because in that case, although there was an ordinance

01:51 - 19.873 passed in and it wasn't passed until later and I believe

01:51 - 22.141 or I would submit that the ruling in that case

01:51 - 23.409 said that the mayor was allowed

01:51 - 26.012 because the check and balance on that is not the ordinance,

01:51 - 28.480 but the check and balance is actually the election.

01:51 - 30.750 So we heard arguments from council. Yeah.

01:51 - 34.820 How do you how do you square that with the fact

01:51 - 39.059 that it was the legislative body of the city

01:51 - 43.028 that enacted the ordinance and said this

01:51 - 44.798 we want this statue here

01:51 - 48.133 and then for

01:51 - 51.203 it shouldn't it have to be the legislative body

01:51 - 54.874 that also agrees with then taking it down?

01:51 - 59.245 I believe that the procedures that we had once

01:51 - 02.181 the home rule charter was enacted

01:52 - 04.416 and then the city council at that time,

01:52 - 04.818 which would have been

01:52 - 06.919 a different constitution of city council

01:52 - 08.253 because there was different elections

01:52 - 12.125 that had happened between 1955 and the 1970s,

01:52 - 15.160 put the art commission rules in the Art.

01:52 - 17.529 Commission into existence through enacting legislation.

01:52 - 22.401 So so basically you're saying is that before the home

01:52 - 26.139 rule charter, the City Council

01:52 - 30.243 acted both as sort of executive well as legislative,

01:52 - 33.713 if you will, and that now they've separated.

01:52 - 35.114 I don't agree.

01:52 - 38.984 I am just trying to understand why you think that home

01:52 - 39.985 rule charter

01:52 - 43.422 changed what

01:52 - 46.459 was a legislative enactment

01:52 - 51.130 into something else that's no longer legislative.

01:52 - 53.132 I think it just requires I would submit to you,

01:52 - 54.134 Your Honor, that it requires

01:52 - 56.169 a reading of the actual ordinance

01:52 - 59.339 as a resolution, which is how it would be memorialized today,

01:52 - 02.575 that it is not an ordinance of ongoing permanent display.

01:53 - 05.377 And if it were, it would be

01:53 - 07.847 something that butted up against the

01:53 - 09.581 how do we write that speech

01:53 - 11.483 to the government that they have now?

01:53 - 13.586 How do we know it's not ongoing?

01:53 - 17.757 It says the right to erect and construct a memorial

01:53 - 21.593 of granite and bronze of Christopher Columbus in such

01:53 - 24.931 place and location in the park, as shall be designated

01:53 - 27.599 by the director.

01:53 - 29.201 It never says that,

01:53 - 32.905 and then it can be taken down at any time or not

01:53 - 36.542 for an indefinite period or for ten years or 20 years,

01:53 - 38.310 if it just says

01:53 - 41.413 they have that right to erect and which they did,

01:53 - 45.517 they incurred money to put this statue into the form

01:53 - 46.352 that it is.

01:53 - 49.288 They They incur money to continue to maintain it,

01:53 - 51.123 even though the city does, they've allege

01:53 - 52.124 they also do.

01:53 - 57.397 So how do you get around an ordi

01:53 - 00.899 that would trigger the right to take it down

01:54 - 03.269 or that you're saying it could be maintained?

01:54 - 04.504 Where?

01:54 - 07.206 In a basement somewhere.

01:54 - 10.943 I would submit to you, Your Honor, that there is in the

01:54 - 13.012 language of this ordinance, they have the right,

01:54 - 15.781 the Sons of Columbus, not the Italian sons

01:54 - 18.785 and Daughters of America, had the right to erect a statue,

01:54 - 20.819 and that is where their rights ended.

01:54 - 22.120 I would also submit to you

01:54 - 24.623 that the record does not reflect that they've spent money.

01:54 - 26.258 You're not reading the Host Home.

01:54 - 28.761 Ordinance to erect and construct

01:54 - 33.700 in such place and location in Schenley Park.

01:54 - 35.801 That language goes together.

01:54 - 38.070 So it wasn't just to erect and construct it.

01:54 - 39.938 It was to erect it, construct it

01:54 - 40.440 and have it

01:54 - 41.807 put in a place in Schenley.

01:54 - 44.611 Park, as Shelby agreed to by the director of Parks.

01:54 - 46.511 Yes. And I would submit you

01:54 - 48.214 that that has occurred and is occurring

01:54 - 50.983 to some degree currently.

01:54 - 53.553 And I would submit to you that that does not

01:54 - 57.290 this particular ordinance is silent on the permanency.

01:54 - 00.826 But even if it were to say it was permanent,

01:55 - 03.295 it butts up against the right to the speech of the government

01:55 - 05.965 at the time that the statue was being asked to remove in 20

01:55 - 07.133 from this court.

01:55 - 09.201 You're in with respect to the ordinance,

01:55 - 12.805 as I understand it, I may be behind, which is my habit.

01:55 - 18.110 This is merely a formal acceptance under the

01:55 - 23.682 then second class city code of a gift to the city, I believe.

01:55 - 24.217 Yes, Your Honor.

01:55 - 26.118 I'm not sure that second class city

01:55 - 28.287 code applied at this time in 1950 or whatever.

01:55 - 29.321 The governor?

01:55 - 30.822 Mm hmm. Yes, which may have been.

01:55 - 34.060 Because we're Dillon's rules state yet

01:55 - 36.829 the state government controls what city?

01:55 - 39.432 Yes. And I would argue that the

01:55 - 42.534 common reading of this or the reasonable reading of

01:55 - 45.972 this would require that to be the way it has to be read.

01:55 - 48.407 Let me ask you something

01:55 - 50.442 a little bit from a different angle here,

01:55 - 53.713 but let's take a look at, say, the skating rink

01:55 - 55.681 in Schenley Park.

01:55 - 56.949 If there was a ground

01:55 - 58.183 swell that too many kids

01:55 - 00.185 are being injured there, we don't like ice skating.

01:56 - 02.020 The penguins lost last night. It's terrible.

01:56 - 03.889 We want to get rid of skating in the city.

01:56 - 06.359 We need to get rid of Schenley Park, Ice Rink.

01:56 - 07.660 How does that happen?

01:56 - 10.663 Can the mayor, Mayor Gainey, say get rid of it and it's done?

01:56 - 11.930 What do you need, Councilman?

01:56 - 13.031 Like action to approve?

01:56 - 14.766 Well, I think that the question is

01:56 - 16.568 would beg a different procedure.

01:56 - 19.072 There would be a procedure, but the skating rink is

01:56 - 21.907 is not government speech.

01:56 - 24.309 The skating rink is a facility asset.

01:56 - 24.877 It's an asset.

01:56 - 26.445 But we're talking about a statute

01:56 - 27.980 that constitutes government speech.

01:56 - 29.915 And those two things really cannot be separated.

01:56 - 30.683 That's my question.

01:56 - 33.319 You know, how will we go about getting rid of Shirley Park

01:56 - 33.886 ice rink?

01:56 - 35.020 I believe that there would have

01:56 - 36.822 to be probably a budgeting process.

01:56 - 38.256 There would have to be discussions

01:56 - 39.791 between multiple groups

01:56 - 42.060 or multiple organizations within the city of Pittsburgh

01:56 - 43.695 to determine what would happen with it.

01:56 - 45.698 Need to be council action, this council

01:56 - 46.732 to prove something like that.

01:56 - 48.700 I'm I'm thinking that the Arts Council

01:56 - 51.304 would have to prove things along those lines. Yes.

01:56 - 54.606 What if it wasn't something as drastic

01:56 - 58.477 and it was something really minor, like switching the what

01:56 - 00.145 side of the road you're supposed to park on

01:57 - 01.947 from Monday at 6 p.m.

01:57 - 03.582 for the next 24 hours.

01:57 - 05.384 City Council has to prove that.

01:57 - 07.652 Well, we're getting into some intricate questions

01:57 - 09.922 about everything that city council might have to approve.

01:57 - 12.491 This is an ordinance on an ordinance.

01:57 - 16.395 I, I would have to read the ordinances

01:57 - 17.896 that are already in existence

01:57 - 20.532 relating to parking in the city of Pittsburgh

01:57 - 21.666 to be able to answer that question

01:57 - 22.235 and apologize

01:57 - 24.236 for not knowing off the top of my head,

01:57 - 25.670 I do not believe that City Council

01:57 - 28.541 would have to approve every single one of those changes

01:57 - 31.109 because I believe there will probably be

01:57 - 34.312 an overriding part of that or part of the processes

01:57 - 36.594 within the city of Pittsburgh that would allow for changes

01:57 - 38.717 that would

01:57 - 41.087 aid in safety or whatever reason the parking would be moved.

01:57 - 43.556 What about something like removing picnic shelter?

01:57 - 45.890 They would not have to approve that.

01:57 - 49.561 And this is

01:57 - 51.797 an object that is different than a picnic shelter

01:57 - 52.998 because it is government speech

01:57 - 54.466 and that's really what it comes down to.

01:57 - 59.772 But doesn't council councils part of the government so

01:58 - 04.076 what would happen if council didn't

01:58 - 07.780 want to take the statue down and the mayor did?

01:58 - 11.951 Then who's speaking the government?

01:58 - 14.519 Well, I believe, Your Honor, that at this point in time,

01:58 - 17.022 the process that was in place was a sufficient process,

01:58 - 18.957 because it is the position

01:58 - 22.260 of our of the city that the mayor is in control

01:58 - 23.029 of the assets

01:58 - 26.666 that belong to the city as it goes for objects like art,

01:58 - 28.500 which the statue would fall under.

01:58 - 29.868 And it would be within the purview

01:58 - 32.505 of the mayor's decision making and not city council

01:58 - 34.206 to be able to go through the process

01:58 - 36.676 that he went through in order to remove this statue.

01:58 - 41.413 This court has city council raised its hand and said, hey,

01:58 - 43.782 we want to stop this. Have they now?

01:58 - 45.283 Have they passed?

01:58 - 47.786 I can't speak on behalf of city council personally,

01:58 - 49.721 but I know that has occurred

01:58 - 50.556 and there's nothing in the record

01:58 - 51.690 that would say that there's been no

01:58 - 55.594 sense of council saying, Hey, we disagree with this, disagree

01:58 - 57.162 with removing the statue or disagree

01:58 - 59.564 with not removing the statue from the statue.

01:58 - 00.999 We don't want to remove the statue.

01:59 - 02.067 I feel very uncomfortable

01:59 - 04.035 speaking for city council because I believe many council

01:59 - 05.937 members have changed since the time this occurred.

01:59 - 08.473 But I believe the city council would vote to remove the statue.

01:59 - 10.242 Is there anything on the road?

01:59 - 12.345 I know I'm asking you to speak to a negative.

01:59 - 13.578 No. There's nothing in the record

01:59 - 14.147 that would indicate

01:59 - 18.217 that there's any disagreement or or not even a bill filed.

01:59 - 21.387 Yes, I that that is accurate that there's no

01:59 - 25.157 nothing that would would intervene

01:59 - 29.394 with this chair for dissolving an ordinance.

01:59 - 30.629 What's the process

01:59 - 32.964 it would go through, I believe, an amendment

01:59 - 36.034 or a similar legislative process to introduce a new bill

01:59 - 40.572 that would eliminate the old or if the council through council.

01:59 - 42.140 Yes. You have to give public notice.

01:59 - 43.708 There have to be hearings. Yes.

01:59 - 45.869 And there were public notice and hearings in this case.

01:59 - 46.878 No. For

01:59 - 50.549 what Judge Spicer said, yes.

01:59 - 52.384 Vacating or rescinding an ordinance.

01:59 - 53.652 Repealing an ordinance.

01:59 - 54.853 I don't know our public hearings

01:59 - 56.555 on the rescinding of every ordinance.

01:59 - 58.156 I mean, there's through legislative process.

01:59 - 00.459 Yes, there are public hearings,

02:00 - 01.826 but I don't think they're special hearings.

02:00 - 02.662 In this particular case,

02:00 - 04.129 we had a regular art commission meeting

02:00 - 08.333 and we had a special public it would be on an agenda.

02:00 - 10.302 Which public notice. Yes.

02:00 - 11.770 And that occurred here as well.

02:00 - 14.873 The meeting and voice their. Yes.

02:00 - 16.641 And that that that occurred in this case

02:00 - 19.778 through the art commission, not as an ordinance process.

02:00 - 20.646 That's what we're saying.

02:00 - 23.515 That's correct.

02:00 - 25.350 I live about 30 seconds left, I believe, Your Honor.

02:00 - 27.587 I would just mention or don't actually, but.

02:00 - 29.988 Oh, I'm sorry. I'm over 30 seconds. Yeah, but that's okay.

02:00 - 31.356 You can sum up quickly.

02:00 - 33.597 I just want to sum up that I believe that the trial court

02:00 - 36.462 followed all of the appropriate standards

02:00 - 39.564 and took into consideration significant laws

02:00 - 41.633 from the United States Supreme Court and persuasive

02:00 - 43.168 and instructive information

02:00 - 44.836 from other courts that have dealt with

02:00 - 48.940 this exact same fact scenario, and that we follow the processes

02:00 - 50.809 that were required within the city of Pittsburgh

02:00 - 53.212 to have the statue removed and that it should be removed.

02:00 - 54.113 Thank you.

02:00 - 58.783 Thank you very much.

02:00 - 59.918 Yes, that's big.

02:00 - 03.722 City council passed an ordinance repealing all.

02:01 - 04.990 That's 198.

02:01 - 06.358 Will we still be here?

02:01 - 08.561 Probably Not. Probably not.

02:01 - 10.362 If they passed the ordinance saying

02:01 - 13.366 we agree with the removal of the statue, would we be here?

02:01 - 15.967 I don't think so, Judge.

02:01 - 18.069 But let me just point out a couple of things.

02:01 - 19.304 I don't want to belabor the point.

02:01 - 20.773 Again, I'm privileged to be here.

02:01 - 24.776 The Home world Charter specifically says

02:01 - 28.179 the mayor must obey

02:01 - 30.650 and enforce all ordinances.

02:01 - 35.655 It doesn't say all ordinances that the mayor likes

02:01 - 39.558 or ordinances that the mayor regards as

02:01 - 43.129 purely ceremonial or

02:01 - 46.732 as a resolve or resolution.

02:01 - 49.367 It says all ordinance.

02:01 - 52.837 And I'm going to throw out the analogy, Judge BoJack,

02:01 - 56.342 because having said through the earlier three arguments,

02:01 - 59.945 I know this is a favorite

02:02 - 04.182 reasoning process of yours.

02:02 - 06.252 Let's say.

02:02 - 09.054 Governor SHAPIRO were to wake up tomorrow

02:02 - 13.326 morning and say, you know what, I don't like Columbus Day

02:02 - 16.962 no more day in the Commonwealth of Pennsylvania.

02:02 - 19.699 Could he do that, that government speech?

02:02 - 24.035 No, because Columbus Day

02:02 - 27.373 is a matter state statutory law.

02:02 - 30.743 It was the legislature that created Columbus Day.

02:02 - 34.146 This very court was closed Monday

02:02 - 36.315 because of that statutory provision.

02:02 - 39.285 And Governor SHAPIRO cannot

02:02 - 42.021 nor could Mayor Peduto

02:02 - 46.092 wake up one morning and say that's the end of that.

02:02 - 48.194 Get it out of there.

02:02 - 49.394 Mr. Picardo.

02:02 - 50.675 Commonwealth courts always open.

02:02 - 53.732 Well understood, Judge.

02:02 - 56.334 Thank you very much. We were.

02:02 - 57.903 Thank you very much.

02:02 - 00.038 Thank you very much.

02:03 - 04.043 Yes, again, very well-argued, very well presented.

02:03 - 07.379 Propel Schools operates four charter

02:03 - 10.149 schools in or near Wilkinsburg, Pennsylvania.

02:03 - 13.185 Betty Bell lives in Wilkinsburg with her two

02:03 - 16.489 grandchildren, one of whom attends a Propel Charter School.

02:03 - 19.191 Bell does not drive, and for three years,

02:03 - 21.693 the Wilkinsburg School District

02:03 - 25.096 or the district provided private transportation via

02:03 - 28.234 school bus to propel students, including Bell's grandson.

02:03 - 33.037 On or about July 18th, 2018, Bell received notice

02:03 - 34.139 from the district

02:03 - 37.208 that it would not provide school bus transportation to students

02:03 - 40.946 who attend Propel Schools for the 20182019 school year.

02:03 - 44.717 The notice indicated that families in Wilkinsburg

02:03 - 47.887 would need to sign up for a Port Authority connect card

02:03 - 50.288 to receive free public bus transportation

02:03 - 52.090 for propel students.

02:03 - 54.459 The district continued to provide transportation

02:03 - 57.997 to public school students throug

02:03 - 01.801 on October 12th, 2018.

02:04 - 04.302 Bell and Propel Schools

02:04 - 05.970 known as the appellants in this case,

02:04 - 08.407 filed a civil complaint against the district

02:04 - 09.708 in the Court of Common.

02:04 - 12.278 Pleas of Allegheny County or the trial court

02:04 - 16.248 seeking declaratory, declaratory and injunctive relief

02:04 - 21.187 for violations of Section 1726 A of the charter school law.

02:04 - 25.223 The trial court found that appellants failed to establish

02:04 - 25.991 the district,

02:04 - 28.861 violated the charter school law or the public school code

02:04 - 32.297 by not providing private or school bus transportation

02:04 - 32.898 to residents.

02:04 - 35.366 Students attending Propel Schools.

02:04 - 38.137 The trial court determined that the charter school law

02:04 - 40.805 only requires that the districts provide charter

02:04 - 44.943 school students with free, and the public school

02:04 - 48.012 code allows this transportation to be furnished by common

02:04 - 51.416 carriers such as the Port Authority.

02:04 - 54.153 Appellants Appealed the trial court's decision to this court.

02:04 - 57.288 This court reversed the trial court determining

02:04 - 58.356 that the district

02:04 - 00.291 needed to obtain approval of its altered

02:05 - 03.496 transportation plan before implementing the change.

02:05 - 05.597 The district appealed this court's

02:05 - 07.532 decision to the Supreme Court,

02:05 - 08.900 which determined that the district

02:05 - 09.869 was not required

02:05 - 12.705 to obtain prior approval from Department of Education

02:05 - 15.941 and remanded for consideration of issues not addressed.

02:05 - 20.311 Namely, whether Section 1726 A of the charter school law

02:05 - 21.813 required the District

02:05 - 25.049 to provide the charter school students with the identical form

02:05 - 26.050 of transportation

02:05 - 28.654 provided to students attending its own schools.

02:05 - 32.191 And whether the district's use of public transport busses

02:05 - 35.193 to transport propel students violated Section

02:05 - 38.697 131362 of the public school code.

02:05 - 43.067 Appellants argue that the charter school law commands

02:05 - 45.203 equal transportation rights for students

02:05 - 48.641 attending district schools and those attending charter schools.

02:05 - 51.443 They acknowledge that Section 17

02:05 - 55.781 six of the law has been amended several times.

02:05 - 57.315 However, they maintain that the

02:05 - 01.219 intent of the General Assembly is to provide equal treatment

02:06 - 03.621 and transportation for all students.

02:06 - 05.690 Appellants note that the core purpose

02:06 - 08.260 of the public school code and the charter school law

02:06 - 10.395 is to increase learning opportunities

02:06 - 13.365 for all students and to obtain a better education

02:06 - 15.633 for children of the Commonwealth.

02:06 - 18.537 Transportation is a critical part of a quality education

02:06 - 20.171 and the safety of students

02:06 - 23.275 in that transportation must be of utmost concern.

02:06 - 26.578 The district argues that neither the charter school law

02:06 - 28.646 nor the Pennsylvania Constitution

02:06 - 32.016 requires the district to provide identical modes transportation

02:06 - 34.587 to all students residing within its boundaries.

02:06 - 39.591 With that, let's go to argument.

02:06 - 41.927 Thank you, Your Honor, and may please the court.

02:06 - 43.928 I'm Alan SHAPIRO.

02:06 - 46.732 My partner, Kathy Clark, is also at counsel table

02:06 - 50.268 for its entire of over 20 years.

02:06 - 53.237 I'm proud to represent Propel Schools

02:06 - 55.239 and I'm happy to represent Betty Bell.

02:06 - 57.742 And I would like to reserve 2 minutes. I'm sorry. Yes.

02:06 - 58.510 Thank you.

02:06 - 02.213 Well done.

02:07 - 06.151 Section 1726 of the charter school law provides

02:07 - 09.321 at least the same, if not greater, rights

02:07 - 12.558 to transportation for charter school students.

02:07 - 15.361 And the reason I say that is because

02:07 - 18.297 the charter school students must be transported,

02:07 - 21.634 whether or not transportation is provided

02:07 - 26.037 on such dates and periods to students attending schools

02:07 - 27.105 of the district.

02:07 - 31.342 Now, that is to say that even in a walking school district,

02:07 - 31.777 I think Mt.

02:07 - 34.513 Lebanon around here might be a walking school district.

02:07 - 37.783 They still have to transport the charter school students.

02:07 - 40.451 Interestingly, if you go to the department

02:07 - 43.554 of Education's website, it has a frequently

02:07 - 46.392 asked questions piece with the following question.

02:07 - 50.729 Are school districts required to transport students?

02:07 - 51.597 And the answer

02:07 - 54.933 is with the exception of charter school students.

02:07 - 58.069 Pennsylvania law does not require a school

02:07 - 01.607 district to provide transportation to its students.

02:08 - 06.811 So the question for this court is, would the General Assembly

02:08 - 10.482 unequivocally provide for transportation

02:08 - 12.984 for charter school students,

02:08 - 16.120 even at a higher priority than district or private school

02:08 - 17.456 students on the one hand?

02:08 - 19.458 But then intent the

02:08 - 22.695 very same section of the statute

02:08 - 25.797 to be able to be interpreted

02:08 - 29.835 that a district may totally disregard the safety

02:08 - 33.272 of the most vulnerable charter school students

02:08 - 38.342 those of tender elementary school age, as young as five,

02:08 - 41.680 such that they are offered only Port Authority bus passes

02:08 - 45.983 totally unsupervised, including transferring

02:08 - 48.353 in downtown Pittsburgh to another bus.

02:08 - 52.057 The answer is, of course no.

02:08 - 54.759 That would be an absurd and in our view,

02:08 - 57.963 unconstitutional and against public interest.

02:08 - 01.966 Result targeting one class of students, charter

02:09 - 04.870 school students and exposing them to a myriad

02:09 - 07.773 of unsafe conditions and hazards.

02:09 - 09.273 What if it's a scenario

02:09 - 10.742 where the public school students

02:09 - 13.444 are walking only and the only option provided

02:09 - 17.982 to the charter school students was the Port Authority bus.

02:09 - 22.354 So our position is that

02:09 - 25.056 the topic

02:09 - 28.793 and the considerations of health, safety

02:09 - 32.264 and welfare are baked in to the school code.

02:09 - 36.467 And the Supreme Court has said that in the roads

02:09 - 39.003 and Springfield cases, which we've cited

02:09 - 42.040 extensively in our brief, those are Supreme Court cases

02:09 - 47.412 involving private school and public school students.

02:09 - 50.182 And I would like

02:09 - 51.916 to point your attention

02:09 - 54.052 to a case that actually the district cited in there.

02:09 - 56.421 Not sure you answered my question. I'm getting there.

02:09 - 57.156 Thank you.

02:09 - 59.258 I Apologize if I'm taking too long.

02:09 - 04.363 Judge Wiles, the Chip man case in the.

02:10 - 08.266 Chip man versus Alvin Grove, which the district cites

02:10 - 11.537 and we extensively cite in the reply brief.

02:10 - 15.973 In that case, the school district

02:10 - 19.645 was providing transportation, including a transfer.

02:10 - 22.981 And what the Commonwealth Court said was,

02:10 - 23.982 we're not going to look

02:10 - 27.986 at the quality of transportation except for health,

02:10 - 31.256 safety and welfare, which we're always going to look at.

02:10 - 35.226 And our position in this case is that health, safety

02:10 - 37.996 and welfare must looked at by this court.

02:10 - 41.365 The trial court made great factual findings, which

02:10 - 45.771 this court adopted in its prior opinion, which talked about

02:10 - 49.106 unsupervised children

02:10 - 51.677 transfers downtown Pittsburgh.

02:10 - 54.179 All of that is adopted by the

02:10 - 56.614 by this court and the trial court.

02:10 - 00.118 But the trial court thought, well, I guess I don't want to

02:11 - 02.019 rule by judicial fiat.

02:11 - 03.020 And what I'm saying is

02:11 - 05.290 you don't have to rule by judicial fiat here.

02:11 - 07.860 You need to look at health, safety and welfare.

02:11 - 09.927 Look at this Chip man case.

02:11 - 14.131 In that case, the court said, well, there's the transfer

02:11 - 18.502 from one bus to another is okay because the school district

02:11 - 21.072 is providing for adult supervision.

02:11 - 23.608 There was a security guard and there were two adults

02:11 - 27.778 at the transfer and the busses only had students on them.

02:11 - 29.947 Unlike here where we have,

02:11 - 31.884 who knows who's on the Port Authority busses?

02:11 - 36.087 I know judges McCullough and Judge Virgil have both spent

02:11 - 36.688 a lot of time

02:11 - 40.492 in downtown Pittsburgh and could could probably picture

02:11 - 44.563 young students transferring on Smithfield Street.

02:11 - 46.330 So is that your position then?

02:11 - 47.698 I'm sorry. Yes.

02:11 - 49.567 Is it your position

02:11 - 53.704 that because typically we look at the language of a statute

02:11 - 57.608 and we say the words are ambiguous.

02:11 - 01.312 Unless the statutory language is ambiguous,

02:12 - 02.080 we don't start

02:12 - 05.483 looking outside of the statute for intent or various

02:12 - 06.784 other things.

02:12 - 09.721 Is it your position then that

02:12 - 15.761 what sort of makes this

02:12 - 21.033 or creates maybe some ambiguity in what the statute says

02:12 - 24.503 is that whether it's there or not

02:12 - 26.771 we always look at health, safety

02:12 - 28.539 and welfare as that in every statute,

02:12 - 33.311 or is that only in those that involve children,

02:12 - 35.379 but that we take we always have to

02:12 - 37.014 look at health, safety and welfare.

02:12 - 41.653 And if looking at that creates an ambiguity, then we

02:12 - 44.189 do our thing

02:12 - 48.260 with respect to the school code, which this is part of.

02:12 - 51.162 I think we always have to look at health, safety and welfare,

02:12 - 53.832 and I believe that that's what the cases say.

02:12 - 57.970 So in every statute of the school code,

02:12 - 02.239 we always consider it in the context of the health,

02:13 - 03.841 safety and welfare.

02:13 - 05.710 I believe that's the case.

02:13 - 08.814 Now, my position is that this

02:13 - 13.317 the statute is unambiguous, that the charter school students

02:13 - 15.420 must be provided free transportation.

02:13 - 18.089 Free transportation. I agree with you.

02:13 - 20.792 Now, one thing I want to point out is that.

02:13 - 22.293 But I agree.

02:13 - 24.195 I agree that you need to look at health,

02:13 - 25.163 safety and welfare,

02:13 - 29.066 and especially in this situation, transportation.

02:13 - 31.203 And we've cited several cases.

02:13 - 33.804 Transportation is looked at that way.

02:13 - 36.140 That's the whole point of Transport Minister Shukla

02:13 - 39.845 doesn't doesn't section 1362 of the public school code

02:13 - 43.382 directly speak to what health, safety and welfare

02:13 - 45.484 we're looking at concerning transportation.

02:13 - 47.886 In the first part, it talks about walking

02:13 - 51.055 and then road traffic conditions.

02:13 - 53.290 No hazards certified by the department.

02:13 - 55.827 Transportation presence of sidewalks.

02:13 - 57.495 Talks all about walking.

02:13 - 00.298 How it has to be safe for the children.

02:14 - 04.136 Then it goes and talks about motor vehicles employed

02:14 - 07.372 and all talks about there is liability insurance.

02:14 - 10.474 So are we to reason that that that's the only health,

02:14 - 12.611 safety and welfare that the General Assembly

02:14 - 15.513 wants us to consider here?

02:14 - 18.683 Or are we to expand that, to

02:14 - 22.820 look at the actual conditions?

02:14 - 25.590 That is not the only thing that you are to consider.

02:14 - 28.927 And a couple of things.

02:14 - 34.432 About 1361, 1362 in particular, because the trial court

02:14 - 37.768 said, well, common carrier is one of the it's listed.

02:14 - 39.103 There's a laundry list of,

02:14 - 41.740 you know, private conveyance, school conveyance,

02:14 - 44.175 common carrier that could be considered

02:14 - 47.245 by a school district in providing transportation.

02:14 - 50.449 Our position, first of all, the school code was was

02:14 - 55.053 enacted in 1949.

02:14 - 56.621 Secondly,

02:14 - 59.723 that list doesn't mean that each one of

02:14 - 02.594 those is appropriate in every situation.

02:15 - 03.528 Okay.

02:15 - 06.098 And we have to look at the age of the kids.

02:15 - 07.731 In fact, if you if you read the record,

02:15 - 10.801 which I'm sure you have probably twice since it's back

02:15 - 13.905 again, the record in this case is

02:15 - 17.342 is very interesting in that

02:15 - 19.410 the school district

02:15 - 20.444 doesn't dispute

02:15 - 22.680 that they put no effort into determining

02:15 - 24.115 whether any of this was safe or not.

02:15 - 27.485 They just said, look, we made this decision of that.

02:15 - 29.019 It was a financial decision.

02:15 - 29.521 And we sent

02:15 - 30.688 a letter out to everybody

02:15 - 33.992 saying you can get a pet bus card if you want.

02:15 - 36.795 And they didn't talk to the Port Authority.

02:15 - 40.031 They didn't scope out the routes or anything of that nature

02:15 - 41.233 in advance.

02:15 - 45.203 In fact, you can get a bus card, right?

02:15 - 47.572 They'll provide that bus, but not you go mobile.

02:15 - 49.174 Correct.

02:15 - 51.909 The district will get paid for that.

02:15 - 53.043 That that's correct.

02:15 - 55.147 And by the way, I think we all understand that

02:15 - 57.915 it is the district's financial responsibility

02:15 - 01.385 under the charter school, also to pay for.

02:16 - 02.653 Well, they're getting it's

02:16 - 05.257 got to be free that they're getting paid

02:16 - 10.494 that the per student amount that is available to the charter

02:16 - 13.898 school accepts out the transportation costs.

02:16 - 16.034 So it's their burden. There's no doubt about it.

02:16 - 17.468 We're not arguing about that.

02:16 - 19.270 COUNCIL Are you saying that the district

02:16 - 21.306 is not providing the same type

02:16 - 23.975 or the same option to public school students?

02:16 - 26.745 Correct. The record here

02:16 - 29.113 is that

02:16 - 33.685 they provided regular yellow school busses to their students,

02:16 - 37.322 but then made a decision over it over the summer

02:16 - 39.156 after they got a study

02:16 - 41.326 from the school business officials saying

02:16 - 45.696 that they could save money if they if they didn't provide

02:16 - 49.000 yellow busses to the charter students, but instead just

02:16 - 52.169 told that they could get Port Authority bus passes.

02:16 - 55.974 And again, our point here is that this was for all students.

02:16 - 01.379 K through 12 charter students all were put into the same mix.

02:17 - 05.149 And we filed this case in equity and asking for

02:17 - 06.250 a declaratory relief.

02:17 - 09.587 And so to your question, Judge, Logic,

02:17 - 11.622 I think maybe Judge, while I apologize,

02:17 - 13.858 I forget who was the judge coach earlier has asked.

02:17 - 17.161 This is an equity case.

02:17 - 18.630 I don't think the statute

02:17 - 20.498 if the

02:17 - 23.201 statute is unambiguous, I would say it's in our favor.

02:17 - 25.569 If it's not, then it's ambiguous.

02:17 - 27.204 And we need to look at the Statutory.

02:17 - 29.374 Construction Act, which is what we contended.

02:17 - 33.111 And an absurd result will

02:17 - 37.148 be the result if we have kindergartners

02:17 - 39.917 taking these busses

02:17 - 43.655 downtown, transferring, which the record clearly shows.

02:17 - 46.091 I mean, if it's

02:17 - 49.893 sort of per say,

02:17 - 52.864 unreasonable to say that

02:17 - 55.600 students of certain ages

02:17 - 59.371 shouldn't take public conveyance unsupervised,

02:18 - 04.041 why can I mean,

02:18 - 07.144 Section 1362 of the public school code

02:18 - 10.447 says transportation of pupils may be furnished

02:18 - 14.052 by using either school conveyance, private conveyances

02:18 - 17.589 or electric railways or other common carriers.

02:18 - 23.528 Well, when it's not

02:18 - 25.764 one and a half

02:18 - 27.931 more than one and a half miles,

02:18 - 29.968 but it provides that

02:18 - 33.405 option.

02:18 - 34.705 It doesn't say,

02:18 - 38.410 but not for young students or only for high school students.

02:18 - 41.412 So isn't that a legislative determination?

02:18 - 43.615 Are we telling them that they're unreasonable

02:18 - 46.418 or absurd?

02:18 - 47.718 Well,

02:18 - 52.223 respectfully, I think if the decision the court

02:18 - 56.861 would be to allow that that that would be an absurd result.

02:18 - 00.597 I understand, of course, that those words that you just spoke

02:19 - 01.699 are not in the statute.

02:19 - 04.101 I mean, the statute it says what it says.

02:19 - 06.037 I understand that.

02:19 - 09.640 But I believe that we can't look at this statute

02:19 - 14.111 and say the only safety thing that matters is

02:19 - 16.480 if they have to walk more than a mile and a half

02:19 - 19.784 and if the PennDOT certifies a hazardous route,

02:19 - 22.520 there are more things that go into transportation

02:19 - 25.957 and whether what is being provided

02:19 - 28.593 is actually providing transportation.

02:19 - 30.160 I mean, I want to I would like

02:19 - 31.962 I don't jeez, I'm running out of time.

02:19 - 37.402 But I would like to read for you what Betty Bell said at trial

02:19 - 41.106 when she was asked about

02:19 - 44.775 whether she would put her second grader on a pat bus

02:19 - 48.213 and she said that she would be worried sick.

02:19 - 49.480 This is her grandson

02:19 - 52.783 if her second great grandson were on a pat bus by himself.

02:19 - 54.551 And she also said

02:19 - 56.687 that she did not believe that he was alert enough

02:19 - 58.822 to get on and off the bus at the correct stop.

02:19 - 02.627 And I think we all can understand that experience here.

02:20 - 04.828 My point to you

02:20 - 08.800 is that it's in your discretion and you should

02:20 - 11.034 look at the health safety and welfare.

02:20 - 13.237 There's no judicial fiat here.

02:20 - 14.471 I have your scope.

02:20 - 16.540 Two questions for you.

02:20 - 19.778 I see your time's up, but I have two questions for

02:20 - 22.212 and one I think bolsters your position

02:20 - 23.882 and the other is your weakest link.

02:20 - 28.253 So the first, we'll start with

02:20 - 31.422 the one that I think may bolster

02:20 - 34.025 your position and I can read section

02:20 - 38.929 1362 is a list of options if I think of it as a statewide

02:20 - 42.634 legislative body that wrote this for 67 counties,

02:20 - 44.768 it's writing out different options,

02:20 - 46.203 like McKean County doesn't have

02:20 - 49.040 an electric railway that kids are going to ride in.

02:20 - 52.744 So I could see this is different options

02:20 - 57.314 where what might be safe and in the best interests

02:20 - 57.982 of children.

02:20 - 00.150 And McKean County may be different

02:21 - 02.886 than what is in the best interests of for children

02:21 - 04.888 in Allegheny County. So then I go there.

02:21 - 07.891 But then and this still, I think, helps your position in

02:21 - 10.361 something you might want to take note of is.

02:21 - 13.230 I don't know the name of the act,

02:21 - 15.700 but I know there's acts that require

02:21 - 18.101 anyone that wants to work with adults

02:21 - 20.237 to go through these clearances. Right.

02:21 - 23.074 So I'm trying to think of how to read that statute

02:21 - 26.977 together with a statute that would even allow children

02:21 - 29.747 to get on common carriers, that which is filled with

02:21 - 33.051 all sorts of adults that don't have the clearances.

02:21 - 34.118 Right.

02:21 - 35.420 I think, you know, and I'm

02:21 - 35.887 not I'm

02:21 - 37.488 not trying to help my opponent,

02:21 - 40.158 but I believe that the testimony at trial was that

02:21 - 42.559 there was somebody from the Port Authority that testified.

02:21 - 44.761 I think the drivers themselves.

02:21 - 46.563 I think the testimony was that the drivers

02:21 - 48.065 themselves did have clearances.

02:21 - 50.301 But everybody else that's on the bus.

02:21 - 53.136 That's right. We have no idea who's on those busses every day.

02:21 - 58.610 There was no these aren't segregated busses for kids.

02:21 - 01.179 About yellow pad busses. They're not yellow.

02:22 - 01.880 Yeah, right.

02:22 - 06.317 And unlike in the Chip man case, there's no school district

02:22 - 08.485 like the school district didn't say. All right.

02:22 - 10.020 We're going to give you a pat busses,

02:22 - 12.624 but we'll do something to make sure everything's okay.

02:22 - 14.137 They didn't. There's nothing like that

02:22 - 15.159 then.

02:22 - 17.428 As to the part that I think

02:22 - 21.064 damns your position is can you address

02:22 - 23.735 the removal of words in the legislative history?

02:22 - 25.270 Yeah, I'd be.

02:22 - 27.671 Yeah, that's that's that's deep stuff

02:22 - 29.874 and that's in the brief that's in both briefs.

02:22 - 31.342 But and

02:22 - 33.043 as I was getting ready for this,

02:22 - 35.379 I was trying to figure out what I was going to say about this.

02:22 - 38.382 But what I think is critical here is

02:22 - 40.517 if you look at the timing,

02:22 - 43.620 the amendment that someone might

02:22 - 46.991 think is bad for us took place in 2000

02:22 - 50.794 because the original language the original language of the law

02:22 - 55.233 said that the kids that lived in the

02:22 - 56.501 that went to a charter school

02:22 - 58.535 in, the district, were to be transferred.

02:22 - 00.137 I forget if it was same terms and conditions,

02:23 - 02.039 terms and conditions, something like that.

02:23 - 03.574 And then it said

02:23 - 07.345 and then kids outside within ten miles are under 13 one.

02:23 - 10.582 Okay, then this Mosaic case came up and

02:23 - 14.252 under the Mosaic case, the issue was,

02:23 - 18.021 is that language about the 1361, what does that mean?

02:23 - 19.022 Is that good enough?

02:23 - 20.223 Do do the charter

02:23 - 22.994 school kids get transported outside the district

02:23 - 28.066 and in 2002 that case is pending before the Supreme Court

02:23 - 31.502 and about a month before

02:23 - 34.739 or two months before the legislature got involved.

02:23 - 37.474 And my belief to what they did was they said,

02:23 - 39.611 all right, we don't want charter school kids.

02:23 - 41.912 We don't want something bad to happen.

02:23 - 43.480 We want them to be transported.

02:23 - 47.085 So they amended the statute to say what I just said,

02:23 - 49.720 which is saying they all have to be transported,

02:23 - 52.423 whether it's, you know, it's within the ten mile boundary.

02:23 - 55.660 So I believe that the 2002 amendment wasn't

02:23 - 59.563 by the legislature to help charter students

02:23 - 03.133 to head off a potentially bad result in Mosaic.

02:24 - 05.203 And now Mosaic actually ended up

02:24 - 08.272 going the way of charter schools.

02:24 - 11.141 So we sort of have a double barrel.

02:24 - 14.411 We have Mosaic as saying the charter kids

02:24 - 17.048 should be treated akin to the private kids.

02:24 - 19.384 And we have the language that I read.

02:24 - 23.320 So I so does that mean it's ambiguous

02:24 - 24.521 and that you get to look

02:24 - 27.824 at the public policy here and the statutory construction?

02:24 - 28.893 I think it might.

02:24 - 30.461 Thank you.

02:24 - 32.129 Thank you. All right.

02:24 - 33.530 Do I still get to. Yes.

02:24 - 36.134 Do. Yes, you certainly do.

02:24 - 39.503 You were you were answering our questions.

02:24 - 40.705 And that's

02:24 - 44.241 we appreciate still.

02:24 - 45.976 Good morning. Your honors may please.

02:24 - 46.277 The Court.

02:24 - 49.147 My name is Christopher Voltz on behalf of the Wilkinsburg.

02:24 - 50.681 Wilkinsburg School District.

02:24 - 51.982 To my right is my colleague,

02:24 - 54.218 Matthew Hoffman, the solicitor for the district.

02:24 - 56.820 Will you be sharing time or are you?

02:24 - 59.090 I will not. I will be going giving argument.

02:24 - 59.991 Okay.

02:24 - 03.227 So one of the issues was with respect to health,

02:25 - 05.662 safety and welfare of our students.

02:25 - 08.532 And when the Supreme Court remanded this case

02:25 - 11.169 to this court, it noted in footnote 14

02:25 - 13.904 that these are matters which at their core,

02:25 - 16.039 at their core involve policy judgments,

02:25 - 17.607 and as such were

02:25 - 20.645 presumably carefully considered by the General Assembly

02:25 - 22.913 when it permitted student transportation

02:25 - 27.185 by common carriers under Section 1362 of the school code,

02:25 - 30.688 while imposing explicit student safety requirements

02:25 - 33.057 which a school district must meet.

02:25 - 34.525 It is not

02:25 - 38.563 this court's role to supplant these policy determinations.

02:25 - 39.763 Well, I'm glad you read that,

02:25 - 42.133 because I might like the part that says

02:25 - 46.104 imposing explicit student safety requirements.

02:25 - 50.240 How is it safe for a five or six year

02:25 - 54.311 old to board a public pet transit bus

02:25 - 58.549 unaccompanied by any adult in the dark hours of the morning

02:25 - 01.753 and, even in some cases having to catch

02:26 - 05.223 make a transfer?

02:26 - 08.326 That's what I just would like you to address, how that meets

02:26 - 12.497 all safety concerns with and in two ways.

02:26 - 14.031 First,

02:26 - 17.434 this case that the trial court was before it was a non-jury

02:26 - 20.471 trial and the parties submitted proposed findings of fact.

02:26 - 24.508 The trial court rejected

02:26 - 28.378 propels argument that pet busses are not safe for children.

02:26 - 30.515 K-2 Five. As a factual matter.

02:26 - 32.950 In addition,

02:26 - 36.219 the Legislature has set forth the safety

02:26 - 39.157 requirements in Section 1326 of the school code,

02:26 - 42.527 which includes the 1.5 mile walking requirement

02:26 - 45.830 that there be shelters when there are when necessary,

02:26 - 51.202 and that there are no routes as determined by PennDOT.

02:26 - 55.739 And the trial court also found, as a matter of fact,

02:26 - 59.777 that the district's plan complied these requirements.

02:27 - 03.180 Is the reason you just didn't get charter busses

02:27 - 05.817 for these students, like the mini yellow busses?

02:27 - 07.350 Was it all budget?

02:27 - 10.521 I mean, finances are important to a school district.

02:27 - 12.189 I mean, as this court recognizes,

02:27 - 15.793 the funding of public schools is unconstitutional.

02:27 - 17.761 So money matters to schools.

02:27 - 19.329 If it's that important, why didn't

02:27 - 21.332 we also put all of the public students,

02:27 - 23.066 although I think arguably a charter

02:27 - 23.968 school is a public school.

02:27 - 25.368 But let's say that

02:27 - 26.903 the public school district students,

02:27 - 29.073 why aren't they on public school bus?

02:27 - 31.442 I mean, the transit busses,

02:27 - 36.313 from what my understanding is, they had a consultant

02:27 - 37.781 look at this issue

02:27 - 39.716 and that consultant made a recommendation

02:27 - 42.252 that they could get a 100% refund

02:27 - 45.488 from the state if the proposal if the charter school students

02:27 - 46.756 were issued bus passes.

02:27 - 47.757 Okay.

02:27 - 52.629 So let's look at

02:27 - 56.567 what the General Assembly laid out for us, 1726

02:27 - 00.671 of the school law mandates that school districts provide

02:28 - 04.242 free transportation to certain charter school students

02:28 - 09.613 and 1326 of the school code authorizes

02:28 - 13.150 for modes of transport, free transportation, common carrier,

02:28 - 18.389 electric rail, private carrier and school busses

02:28 - 21.592 subject to those safety requirements.

02:28 - 26.130 Now Propel is arguing that this court should add a requirement

02:28 - 29.033 that the transportation provided be identical

02:28 - 32.503 to what the district provides its own students.

02:28 - 35.006 So can the school district

02:28 - 39.342 require Patt to monitor the students

02:28 - 40.744 to ensure their safety?

02:28 - 43.214 Like you would enter in a contract with a private,

02:28 - 45.215 you would have control.

02:28 - 46.950 You make sure that they were safe.

02:28 - 48.351 There would be a representation.

02:28 - 52.723 Can they do any of that when they use the PED bus system

02:28 - 54.291 in these children?

02:28 - 57.428 The port, there are no such restrictions.

02:28 - 01.197 It is a common carrier as authorized by 1362 of

02:29 - 02.198 the school code.

02:29 - 04.968 There's no age on the busses.

02:29 - 05.569 Correct.

02:29 - 07.772 Your school busses have age, don't they?

02:29 - 09.106 Some do.

02:29 - 11.175 Yeah. So

02:29 - 16.413 now with respect to

02:29 - 20.016 the requirement that the same mode or the same terms

02:29 - 22.887 and conditions of transportation apply that language

02:29 - 25.790 not appear in 1726 of the school

02:29 - 29.126 charter school law.

02:29 - 30.661 However.

02:29 - 35.765 And to make this argument propel goes back more than 20 years

02:29 - 38.903 to a previous version which did contain that language.

02:29 - 42.473 However, the legislator expressly removed

02:29 - 45.576 this requirements and replaced it with free transportation.

02:29 - 49.280 So our position is that this Court should not add

02:29 - 53.783 under the guise of statutory interpretation, a requirement

02:29 - 56.587 which the Legislature did not see fit to include,

02:29 - 59.990 in fact, the requirement that the legislator legislature

02:29 - 03.894 expressly omit it.

02:30 - 06.731 Now propel, in its brief, argued that

02:30 - 11.468 the statute, if lacking this identical or same terms

02:30 - 14.872 and conditions requirement, is unconstitutional.

02:30 - 18.675 Initially, this argument of constitutionality

02:30 - 19.643 was never raised before.

02:30 - 20.777 The trial court

02:30 - 24.415 never raised before this court on the first time we were here.

02:30 - 26.884 And our position is that it was waived.

02:30 - 30.220 They try to get around this by referring to section

02:30 - 33.657 1922 three of the Statutory Construction Act.

02:30 - 36.794 Now, neither of us cited this case in our briefs,

02:30 - 40.730 but in preparing for this, I came across a case called.

02:30 - 44.134 Commonwealth Versus Gambie Pennsylvania Supreme Court

02:30 - 51.574 case in 202022838229828388a

02:30 - 55.279 yes probably 3d298

02:30 - 59.716 where the Supreme Court said that it had specifically

02:30 - 03.921 and wisely issued the use of Section 1922 three

02:31 - 08.392 in this on the grounds of waiver and absence of advocacy.

02:31 - 10.860 In other words, if we're going to declare a

02:31 - 13.296 statute unconstitutional or an interpretation

02:31 - 16.199 unconstitutional, the parties need an argument

02:31 - 17.001 and the courts need

02:31 - 20.904 to hear arguments on the constitutionality of that issue.

02:31 - 23.174 And that is not present in this case.

02:31 - 27.344 What about Mosaic?

02:31 - 30.114 Can Mosaic be interpreted

02:31 - 32.950 to hold that

02:31 - 37.253 transportation to charter

02:31 - 39.990 school students needed needs to be provided

02:31 - 41.624 by school districts

02:31 - 45.096 in the same way it provides it to private school students?

02:31 - 49.132 I Don't believe so, because that version

02:31 - 53.104 expressly referenced 1361, which applies to

02:31 - 57.675 and so that is what triggered then potentially an amendment.

02:31 - 00.644 An amendment which removed that language.

02:32 - 07.517 Absolutely.

02:32 - 09.987 Sorry, but my question

02:32 - 14.724 so with respect

02:32 - 17.261 to safety matters, the trial court found

02:32 - 20.831 that PennDOT had not certified any routes be hazardous,

02:32 - 22.899 the total distance of any student.

02:32 - 25.101 But don't they only certify those routes

02:32 - 27.605 if the school district asks them to take a look?

02:32 - 31.574 I believe parents can request the school district to do so.

02:32 - 34.311 I know that's the case in my personal situation

02:32 - 36.312 and then typically,

02:32 - 37.881 but there's an incentive and I think one of our

02:32 - 40.150 transportation providers testified that

02:32 - 43.854 if there is a hazardous route and we provide transportation,

02:32 - 46.223 we get subsidized for those costs.

02:32 - 48.625 So there's no incentive for the district

02:32 - 53.330 not to find something, not to be hazardous.

02:32 - 57.300 So you're subsidized only to a certain amount

02:32 - 01.205 for the charter school students in the sense that,

02:33 - 04.875 I mean, otherwise you could provide busses

02:33 - 08.912 for charter school, yellow busses for charter

02:33 - 10.180 school students.

02:33 - 11.981 So there's a cap somewhere.

02:33 - 13.950 It seems to be the trial court.

02:33 - 16.387 The facts never really got into the details of why

02:33 - 21.024 school busses are subsidized at a lower rate than at busses.

02:33 - 23.293 But that is the conclusion that was reached

02:33 - 27.030 has turned out to be true.

02:33 - 30.800 So 1726 requires that you can use these carriers

02:33 - 34.505 if you maintain all aspects, see all aspects of it.

02:33 - 37.407 And but you answered that.

02:33 - 38.741 Don't have a bay on the bus.

02:33 - 40.443 No one's watching these children.

02:33 - 42.345 There's no agreement with the carrier

02:33 - 44.781 that they will ensure the safety of the children.

02:33 - 45.883 So how are you

02:33 - 49.520 maintaining all aspects?

02:33 - 52.989 I don't believe 1726 provides that.

02:33 - 55.593 I think a properly excuse me, a

02:33 - 57.728 a yes.

02:33 - 00.096 I can put a statue in front of me.

02:34 - 01.097 I never.

02:34 - 09.173 I know there was a regulation

02:34 - 14.277 discussing all aspects of transportation,

02:34 - 17.014 but I don't believe that in 1726 A.

02:34 - 20.283 What do you mean that isn't in there?

02:34 - 22.720 The Looking out for the welfare and interests of children

02:34 - 26.256 that the school in 1726 a that the school district

02:34 - 29.293 is responsible for all aspects of transportation.

02:34 - 34.297 I don't believe that language is in 1726.

02:34 - 37.567 And with respect to the regulations, you know,

02:34 - 45.568 that was the issue that went up to the Supreme Court already.

02:34 - 51.282 1726 requires us to provide free transportation.

02:34 - 53.616 It does in excess of the code.

02:34 - 56.854 I say the wrong code. 23.4.

02:34 - 59.989 I don't know if I have that here.

02:34 - 02.191 Code 23.4.

02:35 - 07.463 Okay.

02:35 - 11.168 And where is the language of maintaining all aspects?

02:35 - 14.704 My response to that is that the Department of Education

02:35 - 17.173 has always approved our transportation plans

02:35 - 20.711 retroactively by giving us the full subsidy

02:35 - 23.179 whether or not we were complying.

02:35 - 26.316 I thought I understood that they were not looking at

02:35 - 27.417 all of this, that you don't

02:35 - 31.055 want to have to submit this to them specifically.

02:35 - 33.023 They just give you the

02:35 - 35.925 the reimbursement rate

02:35 - 37.193 because you have a public carrier,

02:35 - 38.661 which we're you're allowed to do.

02:35 - 42.298 But does that alleviate you from having to oversee

02:35 - 46.602 all of it under the code?

02:35 - 51.674 My understanding and my position is that we are complying

02:35 - 56.679 with the charter school law and the school code and.

02:35 - 58.014 The extent

02:35 - 00.584 and I believe that if we comply with those requirements

02:36 - 05.422 that we are in compliance with the law. Like

02:36 - 09.492 my question was, how are you controlling all aspects of it?

02:36 - 14.163 By not having an aid, by not being able to contract with the.

02:36 - 15.698 You have a site for that?

02:36 - 18.335 2320322.

02:36 - 21.237 Code 23.4.

02:36 - 22.806 It was in the prior.

02:36 - 30.913 Okay.

02:36 - 31.914 I did.

02:36 - 35.052 I mean, I guess my position is that

02:36 - 39.989 our position is that the statute,

02:36 - 42.126 the charter school law and of

02:36 - 45.962 the school code

02:36 - 48.264 are the requirements we need to meet

02:36 - 50.967 if we are not complying with the Department

02:36 - 52.502 of Education Regulation.

02:36 - 53.503 I assume there is an

02:36 - 57.107 administrative remedy that could be sought by anybody

02:36 - 59.576 who alleges that we are not complying with that.

02:36 - 03.013 In fact, the charter school law provides the same thing

02:37 - 06.783 that if we are not in compliance with the transportation

02:37 - 07.850 requirement.

02:37 - 11.155 1720 a b

02:37 - 13.556 if the Secretary of Education determines

02:37 - 15.993 that we are not providing the required transportation,

02:37 - 18.161 they can withhold our subsidy

02:37 - 20.530 and give it to the charter school.

02:37 - 22.433 So that finding has not been made

02:37 - 26.068 and we believe

02:37 - 31.107 we are in compliance with the applicable laws.

02:37 - 33.276 Can you address the question I asked earlier

02:37 - 35.211 that asked you to take note of dealing with,

02:37 - 35.979 you know, there's an act

02:37 - 38.881 that requires clearances for all adults.

02:37 - 40.149 It's not for all adults.

02:37 - 43.252 It's for people who are responsible for the care

02:37 - 44.854 and custody of children. Yeah.

02:37 - 47.157 What does that include transporting children to?

02:37 - 49.526 Well, as mentioned, the bus drivers do,

02:37 - 52.662 and I don't think I need a clearance to go on a Port.

02:37 - 55.432 Authority public bus because I'm not responsible

02:37 - 58.001 for any child that is also on that.

02:37 - 00.203 So as long as there's one person there, it's almost like

02:38 - 04.274 the driver is the supervisor of the other adults then.

02:38 - 06.042 Well, I don't even know if it's that

02:38 - 08.244 I believe that you're in a public place

02:38 - 10.379 like I don't think if you go to a restaurant

02:38 - 12.782 with your kids that the owner of the restaurant

02:38 - 15.218 needs to have a clearance because someone else

02:38 - 16.552 is in charge of the shelter.

02:38 - 18.921 No one's in.

02:38 - 21.758 So I don't think that's really a question for another day.

02:38 - 23.526 But what got me thinking about it is

02:38 - 24.094 I was trying to

02:38 - 27.964 think of scenarios when you remember I said, okay

02:38 - 30.566 in this county, this option might be safe

02:38 - 32.134 in this particular school district.

02:38 - 33.603 And another one it may not.

02:38 - 36.507 I was trying to think of a scenario where it's ever safe

02:38 - 40.143 for a child to put on a public transit bus

02:38 - 41.978 because of all the people

02:38 - 43.613 that we don't know that are on that bus.

02:38 - 45.414 But that's not the issue before the court today.

02:38 - 50.020 It just got me thinking down that direction.

02:38 - 52.622 That's all.

02:38 - 54.825 And I would point out that there was a common well,

02:38 - 58.861 there is a common pleas decision like 1972

02:38 - 02.265 with Schwartzmiller and where it was in Pittsburgh.

02:39 - 05.002 There was a transfer downtown via bus

02:39 - 08.872 and that pass muster in 1972.

02:39 - 14.278 And then in Hoffman versus Hoffman versus Valley 2015,

02:39 - 17.981 that case involved another bus to downtown,

02:39 - 21.884 then a subway ride and then a mile walk.

02:39 - 24.554 And the court tonight, this court upheld a denial

02:39 - 27.591 of a preliminary injunction against that practice.

02:39 - 30.159 And in that case, also the parent elected

02:39 - 32.996 to get reimburse for driving her student

02:39 - 36.233 school.

02:39 - 39.436 So looks like my time is up.

02:39 - 41.804 So with there are no further questions.

02:39 - 42.973 I'll take a seat.

02:39 - 47.277 Thank you very much.

02:39 - 53.350 Thank you.

02:39 - 56.353 I'm reading from the Road's.

02:39 - 59.789 Supreme Court case road case, which I mentioned earlier.

02:39 - 01.958 It's actually also cited in the Springfield School.

02:40 - 04.126 District case, which is in our brief.

02:40 - 07.330 School bus transportation clearly involves the safety

02:40 - 08.798 and health of our children.

02:40 - 11.602 The bus sing of school children is for their protection

02:40 - 14.770 against hazards of the roadways and of traffic.

02:40 - 18.342 Against dangers occasioned by exposure to weather.

02:40 - 21.011 Against evils of child molestation.

02:40 - 23.679 That's common law.

02:40 - 27.183 OC Common law is here in this case, it's

02:40 - 30.854 not just reading some words on on a page.

02:40 - 34.358 It asked earlier

02:40 - 39.962 about what was the district's motivation?

02:40 - 43.332 Was it just for money?

02:40 - 45.401 I don't know what their motivation was.

02:40 - 48.238 I wasn't there when their school board made this decision.

02:40 - 49.272 But I will tell you what

02:40 - 52.809 the impact of this, if this is allowed to

02:40 - 57.214 be continence by this court,

02:40 - 01.952 will be that we will create a second class

02:41 - 04.186 type of student charter

02:41 - 07.024 school students, particularly younger charter school students

02:41 - 10.293 and families who have chosen charter schools.

02:41 - 13.463 They won't they just won't be able to do this

02:41 - 16.632 in in our case, Propel

02:41 - 19.903 happened to have the financial wherewithal

02:41 - 21.937 to hire their own company,

02:41 - 23.706 which they shouldn't have had to have done,

02:41 - 26.308 because they wanted these kids to still be able

02:41 - 27.376 to come to propel.

02:41 - 30.547 And they've done that as this litigation has gone on. Mr.

02:41 - 32.916 Shukla Do they get reimbursed by the Commonwealth for that.

02:41 - 34.183 They don't.

02:41 - 35.152 They do not.

02:41 - 38.220 Now, counsel mentioned that there's an administrative

02:41 - 42.659 procedure under Section 1726, like it's true

02:41 - 45.228 that a charter school could go to the state and say

02:41 - 47.063 they're not providing transportation,

02:41 - 49.066 but Betsy Bell can't do that. Okay.

02:41 - 52.335 And this money is important.

02:41 - 54.770 And it's important.

02:41 - 56.972 But this case is about more than money.

02:41 - 00.209 As I said earlier, it's a it was a declaratory judgment action.

02:42 - 01.510 It's a case in equity.

02:42 - 03.346 And we have the right to be

02:42 - 06.315 to have this case heard.

02:42 - 07.850 And it was fully heard.

02:42 - 10.286 We heard about the preliminary injunction case.

02:42 - 11.320 The Chip man case was a

02:42 - 13.957 preliminary injunction case that had way different facts.

02:42 - 17.928 But the demonstrated that on the merits of

02:42 - 19.862 of after a full trial

02:42 - 22.399 happened here and the record that you can review

02:42 - 25.302 that health, safety and welfare is important.

02:42 - 27.804 And is this a question?

02:42 - 33.043 I mean, I don't, I don't doubt at all

02:42 - 36.313 that the health, safety and welfare of these children

02:42 - 38.247 is important.

02:42 - 40.650 And I also.

02:42 - 44.020 I'm, as

02:42 - 46.056 you know, uncomfortable as well

02:42 - 49.993 with the idea of young children

02:42 - 53.863 finding their way through

02:42 - 56.866 the, you know, different transfers

02:42 - 59.636 and riding on public transportation by themselves.

02:43 - 03.073 But is this an argument that you make to us,

02:43 - 06.510 or is this an argument that you make to the legislature

02:43 - 11.080 and say like that language that you took out of the statute

02:43 - 16.386 that required them to be provide us parody, put it back in.

02:43 - 19.121 Do you see what I'm saying?

02:43 - 21.591 Why is this a decision for

02:43 - 26.929 and not for the legislature?

02:43 - 28.631 We would take any help we could get.

02:43 - 29.533 And I'm not

02:43 - 32.602 saying that it would be great if the legislature,

02:43 - 36.706 you know, perhaps similarly to the mosaic case,

02:43 - 39.875 got involved before another

02:43 - 42.479 five and a half years of this case.

02:43 - 47.150 And but again, I believe I've I believe I've expressed it.

02:43 - 51.621 The the intent of this statute has always been

02:43 - 54.523 that charter school students are to be provided

02:43 - 58.962 transportation on akin to which is what Mosaic has said

02:43 - 02.566 on equal footing with district students.

02:44 - 04.868 Charter students are public school students

02:44 - 07.571 and equal to private school students.

02:44 - 10.440 Why wouldn't they be? Why? What?

02:44 - 14.176 Come up with any possible reason why that wouldn't be the case?

02:44 - 19.182 And as my partner Strasburg wrote in in our brief,

02:44 - 22.151 this amendment,

02:44 - 25.955 this tortured history of four or five different amendments,

02:44 - 30.626 that the legislature does not hide elephants in mouse holes.

02:44 - 34.396 And so if the intent was to suddenly say, nope,

02:44 - 37.934 charter school students can all open season on them,

02:44 - 40.836 there would have been some indication

02:44 - 42.371 in the legislative record.

02:44 - 43.740 Instead,

02:44 - 47.777 this amendment was a clarifying amendment.

02:44 - 51.280 And as I answered earlier to Judge Wallace

02:44 - 54.250 this question, our position is that that clarification

02:44 - 58.121 was an attempt to expand or to solidify

02:44 - 01.490 charter school students rights to transportation.

02:45 - 03.592 And that's where we sit today.

02:45 - 06.563 Chuck, if I may indulge and present Judge,

02:45 - 07.964 I know you're able to

02:45 - 11.066 I just have a few questions that think any more,

02:45 - 14.170 depending on how you answer that I need you help me with

02:45 - 17.773 this just deals with Wilkinsburg school district

02:45 - 20.977 not other school districts correct deal with Propel.

02:45 - 25.514 And the flip side is it's only propel and is it just Ms..

02:45 - 28.684 Bell and her grandchildren or their other children.

02:45 - 30.452 But what know there were many children

02:45 - 32.121 in the record. The records

02:45 - 34.991 very detailed on that and it's cited in our brief.

02:45 - 37.360 But that is it a point that I

02:45 - 40.429 think I tried to make earlier where I was

02:45 - 43.333 saying, you don't have to not to make new law here.

02:45 - 46.503 But I think all you need to do is look this case.

02:45 - 51.140 But but the only child or children involved are Ms..

02:45 - 53.442 Bell's children or grandchildren.

02:45 - 55.978 No parties or parties.

02:45 - 57.046 Yes, as parties.

02:45 - 00.549 But but we demonstrate not brought a class action.

02:46 - 03.186 It's not a class action. And there are two children involved

02:46 - 06.056 here.

02:46 - 07.222 There's one child.

02:46 - 12.461 Okay, but but but again, we propel brought these cases

02:46 - 15.865 essentially on behalf of of but it's not a class action.

02:46 - 18.501 How old is that child now?

02:46 - 23.205 He well, he was in second grade in 2019.

02:46 - 25.508 So he's whatever grade is now.

02:46 - 28.177 I, I believe so.

02:46 - 31.180 Yes, I believe so. Yes.

02:46 - 33.515 Do I have. Thank you. Thank you.

02:46 - 34.050 Thank you.

02:46 - 35.651 Thank you very much again.

02:46 - 36.419 And tell Mr.

02:46 - 38.721 Strasburg I'm disappointed that he wrote the brief.

02:46 - 40.389 He's not here in front of us.

02:46 - 41.690 You're a great substitute.

02:46 - 46.396 Thank you, sir, for your.