00:00 - Good morning everyone.

00:02 - Welcome to our second day of oral

00:04 - argument here in the Harrisburg courtroom of the Supreme Court

00:08 - of Pennsylvania at our majestic state Capitol building.

00:13 - As architect Joseph Houston envisioned this building to be a palace of art.

00:18 - I highly encourage everyone in attendance after your arguments to visit

00:23 - the rotunda, the Legislative Chambers, and the governor's reception room.

00:28 - With an eye toward the beautifully crafted artwork, particularly

00:33 - the famous Violet Oakleigh murals, which were installed in 1927.

00:39 - Violet Oakley was the first female artist

00:42 - to receive a major public art commission,

00:46 - and she devoted 25 years of her life to this project.

00:51 - Her murals on the evolution of law

00:53 - which surround this courtroom are simply spectacular.

00:58 - We also marvel at the 52 million

01:00 - pound terracotta dome above the rotunda, a one third scale

01:06 - model of the dome of Saint Peter's Basilica in Rome.

01:10 - On top of which a 15ft gilded statue named Commonwealth stands.

01:16 - Houston intentionally placed this courtroom on the fourth floor,

01:20 - with the legislative and executive chambers on the second,

01:24 - both to physically separate and symbolically indicate

01:29 - that the judiciary is an independent and equal branch of government.

01:34 - The courtroom was designed in the Greco-Roman art style, as indicated

01:39 - by the ionic columns and the Greek

01:42 - grill wainscoting, all handcrafted.

01:46 - All the wood in the room, including the bench, is

01:48 - mahogany imported from Belize.

01:52 - I'd also like to draw your attention to the two

01:55 - ton bronze chandelier, unique yet different from one another.

02:00 - Under the main light in each is a statue

02:03 - dedicated to the four great law givers.

02:06 - To my right are the Hebrew Law Grant.

02:09 - First closest to the bench is Moses and then the back King Solomon.

02:13 - To my left are the Greeks closest to the bench, as Aristotle,

02:17 - and to the back is Solon, the father of democracy.

02:21 - The green and gold stained glass dome, designed by Alfred Godwin,

02:25 - is one of the many domes in the Capitol, but

02:28 - this is the only stained glass dome

02:32 - and it is only visible from inside the courtroom.

02:36 - The Majesty of this courtroom is designed to remind us all of the seriousness

02:42 - and importance of the work we are all here to do.

02:45 - In 1927, when Violet Oakley's murals were revealed,

02:51 - Senator George Warren Pepper remarked that Oakley's murals

02:54 - would remind the justices of their solemn duty and the advocates

02:59 - to restrain their passions and compel candor,

03:03 - and that these paintings would serve as a silent

03:06 - but convincing witness to those things

03:10 - without which we build in vain.

03:13 - We are privileged to sit in three beautiful courtrooms

03:16 - in Philadelphia, Pittsburgh, and here in Harrisburg.

03:21 - Before we begin, I'd like to just, note sadly,

03:25 - that Justice David Wecht will not be joining us for this argument

03:29 - session as his father, Doctor

03:32 - Cyril Wecht, passed away a few days ago.

03:36 - The court extends its sincere condolences to Justice Wecht

03:40 - and to the entire Wecht family.

03:43 - Justice Wecht will still participate in this session.

03:48 - He has prepared the cases, and he will later

03:51 - watch the videos of your arguments.

03:54 - Counsel, before we hear the first case.

03:56 - Let me just remind you of a few things.

03:59 - Appellant's counsel, please approach the podium when your case is called.

04:03 - I will then give a short summary of the case.

04:06 - You may then begin by stating your name and the party you represent,

04:10 - and introducing your co-counsel to the court.

04:14 - The justices are familiar with your cases, so I ask that you avoid

04:18 - any unnecessary recitation of facts or procedural history,

04:22 - and instead focus on the main issues on which we granted review.

04:27 - Counsel is always welcome to rely on their briefs for particular issues.

04:31 - Please remember that we do not allow rebuttals in cases

04:35 - in which there are multiple parties represented by separate counsel.

04:39 - You should avoid repeating the same arguments as prior counsel.

04:43 - Please try not to interrupt the justices when they are asking you a question.

04:48 - A justices question is not meant to trip you up.

04:51 - Rather, it indicates there are particular issues which we wish to explore further.

04:57 - While there's no set time limit for argument, I will advise counsel

05:01 - when the court is satisfied that all of its questions have been answered.

05:05 - And at that time, I will ask that you conclude your argument.

05:09 - The next case is Commonwealth versus Lear.

05:12 - This case involves the Pennsylvania Rules of Criminal Procedure

05:17 - and the right to a speedy trial.

05:20 - As many people recognize, under the Pennsylvania Constitution

05:25 - and the Rules of Criminal Procedure, a defendant who is being brought in

05:29 - front of a jury or a court for criminal

05:32 - charges has the right to a speedy trial.

05:35 - the rule that specifically will apply and that you'll hear about is rule 600.

05:40 - What rule 600 requires is essentially that a defendant

05:45 - who's being charged with a crime be brought to trial within 365 days,

05:51 - unless there's a plea or an agreement between the parties

05:55 - to delay the trial or some other reason.

05:58 - If, if the Commonwealth,

06:02 - does not do that within 365 days,

06:06 - then the defendant can ask for the charges to be dismissed.

06:09 - However, the Commonwealth could then try to prove

06:13 - that it was acting with due diligence, that it was trying to pursue the case

06:17 - and there were reasons for the certain delay in the case.

06:21 - So in this case, Mr.

06:23 - Leo was arrested, and brought to trial.

06:27 - This case started around the beginning of the Covid

06:30 - pandemic in March of 2020.

06:34 - So by, history really briefly, as everyone

06:39 - realizes, the courts were closed initially

06:43 - by a statewide judicial emergency.

06:46 - Then after about six weeks, the courts were able to open.

06:50 - Although the president judges in each county had discretion about,

06:56 - either canceling trials, postponing

06:58 - certain deadlines, specifically, suspending rule 600,

07:04 - which would require the defendant to be brought to trial

07:07 - within the 365 days.

07:10 - There's probably two, dates you're going to hear about.

07:14 - You're going to hear about in the argument, the mechanical run date,

07:18 - which is generally the 365 date from the date that the person is charged,

07:25 - then you're going to hear about the adjusted run date.

07:27 - The adjusted run date would be something where something happened

07:32 - during the 365 days to kind of stop the clock from running.

07:37 - In this case,

07:40 - Mr. Lear

07:41 - claimed that the rule 600 was violated because it took over a year

07:48 - to bring him the trial from the time he was charged in the spring of 2020.

07:54 - The Commonwealth said no, that the adjusted run date

07:59 - by the time you added in the date for the statewide closure,

08:04 - and then the president chose the suspension

08:07 - of the rule 600,

08:11 - and that they could not have jury trials

08:15 - that would extend the date out for a certain period of time.

08:19 - The case, went to the Superior Court, and the Superior Court

08:23 - found that there was not enough evidence.

08:26 - presented, as to whether the Commonwealth acted for due diligence,

08:31 - with due diligence, to get the exception

08:34 - of the 365 days they were going to.

08:38 - They initially remanded it back, which means sending it

08:41 - back to the trial court for a hearing on that.

08:44 - But the Commonwealth appealed and the Supreme Court accepted.

08:49 - What the court's going to be looking at in this case is whether or not

08:54 - basically, when you have a global pandemic and the that you had,

09:01 - rules and date suspended

09:04 - throughout the state for a certain period of time,

09:08 - then the president judge cancels and suspends trials,

09:12 - suspend rule 600.

09:15 - and there is jury delay whether or not that's enough

09:20 - or you have to look at the Commonwealth's due diligence in this case,

09:26 - if the court says that you don't have to look at the due diligence,

09:31 - then the conviction will most likely be upheld.

09:34 - If the court says you have to look at the due diligence

09:38 - during this exceptional time, then the case would be remanded

09:42 - back to the trial court to determine the due diligence of the Commonwealth.

09:47 - Let's go to the courtroom.

09:49 - Good morning.

09:49 - May please the court.

09:50 - Mercy Booth, on behalf of the Commonwealth, I visited

09:54 - this building as part of my fourth grade class field trip,

09:57 - and I think ten year old me would be shocked that I'm here today.

10:01 - Partially because she wanted to be a pharmacist, but

10:03 - also because of the circumstances of this case.

10:08 - Covid 19 was an unprecedented, uncertain and frankly scary time.

10:14 - There were smaller effects, like not being able

10:17 - to find items at the grocery store or not being able to get your haircut.

10:21 - But there were lasting effects, too, like being forced to miss

10:24 - the graduations, births, and funerals of loved ones.

10:29 - But now we

10:29 - know because of Covid, there is always the possibility

10:32 - of some black swan event, force majeure, or some other unknown unknown

10:37 - when it comes to rule 600 and emergencies, there are two rules that give this court

10:42 - the ability and flexibility to make it clear that during Covid 19,

10:46 - safety was the top priority and ensure that safety will

10:50 - remain the top priority in any judicial emergency moving forward.

10:54 - The first is Pennsylvania Rule of Judicial Administration, 1952,

10:59 - and the second is rule 600 itself

11:02 - under rule 1952.

11:04 - This court and precedent judges have the ability to declare

11:07 - judicial emergencies, which then give them the power

11:10 - to issue orders that modify or suspend statewide and local rules,

11:15 - close courthouse facilities, and take any other action necessary

11:18 - to protect court users, court personnel, and the public.

11:24 - In March of 2020, this court declared a statewide

11:27 - judicial emergency and gave president judges the ability to do the same.

11:31 - In Montgomery County, President Judge Joe Ritchie declared a judicial emergency.

11:36 - Actually, his first one was on March 12th, 2020,

11:39 - because he was the first county to petition this court for that ability.

11:42 - But after the statewide judicial emergency,

11:46 - he again declared a judicial emergency on March 16th.

11:50 - After that point, he issued multiple orders governing

11:53 - courthouse closures, county facility operations,

11:58 - and other restrictions that were in place for the Public safety.

12:02 - Based on the plain language in the declarations and orders.

12:05 - Montgomery County's blanket suspension of rule 600 was in effect

12:09 - until August 31st, 2021, which.

12:16 - Was rule

12:17 - 600 actually suspended by the orders?

12:20 - I thought there was other language in the order.

12:23 - I mean, some of the orders that passed,

12:27 - our desks during the judicial emergency.

12:30 - The PJs actually said they were suspending rule six and

12:34 - others did not.

12:35 - What did they do?

12:38 - The orders.

12:39 - There was one order that also suspended the rule.

12:41 - So most of the suspensions were in the declarations.

12:45 - from March 16th, March 31st, and then in an order on June 3rd.

12:51 - My position is that the June 3rd order

12:53 - was also enough to effectively suspend the rule.

12:57 - But what does that mean?

12:58 - Your position is what did the order say?

13:00 - So the order said,

13:03 - the delay in scheduling caused by the judicial emergency

13:07 - shall be considered a court postponement and shall be

13:11 - considered and shall be excluded.

13:14 - So that shall be excluded.

13:15 - Language shall means mandatory.

13:17 - and in this court, suspension of rule 600, it explained that the

13:22 - the report of a suspension, as at this time shall be excluded.

13:25 - So that June 3rd order also suspended the rule,

13:28 - because it ordered that the time shall be excluded.

13:32 - Yesterday delay was attributable to the judicial

13:38 - emergency.

13:39 - Correct.

13:40 - So in this case, the lower court found that

13:43 - the delay in this case was caused by the pandemic.

13:46 - The backlog, the judicial emergency,

13:48 - and then under that order, it was required to exclude it.

13:52 - could you give me an idea of what was going on?

13:56 - in the courthouse during the period of time that we're talking about,

14:00 - were there no non-jury criminal trial?

14:03 - Frankly, none. Correct. For how long?

14:07 - So the jury trials were suspended for,

14:11 - 14 or 15 months, I believe.

14:16 - Sorry, 14 months, until July of 2021.

14:21 - So. Okay, how about how about non-jury trials?

14:24 - Non-Jury trials were suspended for seven months.

14:27 - they when did they start?

14:29 - When did the court start hearing nine jury trials.

14:32 - They started to consider that possibility in October of 2020.

14:36 - So what I mean by that is at that time there were cases

14:40 - actively awaiting bench trials, jury trials in March of 2020, when Covid

14:44 - hits, everything gets, canceled, suspended and all of those things.

14:48 - So the cases that were awaiting trial in March of 2020

14:51 - were the priority cases in October of 2020,

14:55 - I believe the trial court found that there were 360 cases actively

14:59 - awaiting trials in October of 2020 that were waiting since pre pandemic.

15:06 - so then the court in October of 22.

15:08 - The problem October that's a problem started moving through those cases

15:13 - and then

15:15 - then it would prioritize incarcerated defendants,

15:18 - and defendants who, who were further along in the process before

15:23 - moving to the complaints that were filed in the middle of the pandemic.

15:26 - Well, this was this complaint was filed right at the beginning of the pandemic.

15:30 - Correct.

15:31 - We had the same problem filing complaints during the pandemic, I guess, correct

15:35 - a point. Correct.

15:36 - the three complaints in this case were filed in one in May, June and July.

15:41 - So that's right in the middle of the pandemic.

15:43 - And, when this courts statewide emergency was still in effect,

15:48 - in terms of the specifics of Montgomery County,

15:51 - the when the courthouse closed in March of 2020,

15:55 - prison Judge Silver actually precluded any staff from going into the courthouse.

16:00 - So at that time, all illustrate with an example.

16:03 - At that time, the DA's office was working on desktop computers.

16:08 - none of our processes were set up to be remote,

16:11 - and there really wasn't a reason for us to think they had to be.

16:14 - But the county is

16:17 - is in charge of our equipment and things like that.

16:19 - So in March of 2020, we're working on desktop computers.

16:22 - We get an email saying pack up for two weeks

16:25 - and and we'll come back two weeks to flatten the curve and we'll come back.

16:30 - when that didn't happen, we then had to start working with the county

16:34 - to get things like laptops and,

16:38 - set up virtual desktops

16:41 - and secure, remote programs to do hearings over,

16:46 - over the internet, which we had never had to do before.

16:48 - So there was a everywhere in the comic, correct?

16:52 - True. And this court.

16:53 - So there was a bit of a learning curve.

16:55 - so when that first started,

16:59 - we had to there was an adjustment period that where cases

17:02 - were still being, initiated and they were building into the backlog.

17:06 - Then this court's orders

17:08 - directed the president and judge to focus on what were first

17:12 - called essential functions, but then became, critical functions.

17:16 - So that was bail hearings, gag,

17:19 - some habeas

17:20 - proceedings and things like that.

17:23 - So during that time, we weren't sitting and doing nothing.

17:26 - We were focusing on the critical functions as directed by this court

17:30 - and our president. Judge.

17:32 - So again, there's only so far along that you can get a case

17:35 - before at some point the, the cancellation of, for example,

17:39 - pretrial conferences before you could get it to that point.

17:43 - And then that was as far as you could go until things were safe.

17:46 - So and that early point, we were focusing on the critical functions

17:51 - and focusing on moving the cases as far as we could get them then.

17:55 - So counsel can can you describe for me what you mean by that?

17:58 - Because what you're what you're describing

17:59 - to the non-critical functions of the court

18:01 - or what you've described as a non-critical functions of the of the process,

18:05 - don't really impact rule 600 because rule 600 a speedy trial.

18:08 - Right? Right.

18:09 - Talking about getting the case to trial phase VOP

18:12 - bail hearing, you don't necessarily move that case forward.

18:16 - What, if anything, was the Montgomery County District Attorney's Office doing

18:19 - to move cases forward during the period of the declared judicial emergency?

18:23 - We were I think that's the issue before the court,

18:25 - which is whether or not the Commonwealth is required to show due diligence

18:29 - during the periods where the courts were closed.

18:32 - So we were focusing,

18:35 - on what we could, which was the critical functions.

18:37 - But then we were trying to move the cases as best as we could.

18:40 - but we had to do so under the restrictions

18:44 - and protocols from the president, judge.

18:46 - So we we could, for example, do a preliminary hearing

18:51 - very few per week, and on a rotating basis.

18:55 - So we would do the preliminary hearing and then we would wait for the arraignment.

19:00 - If a defendant didn't

19:01 - waive an arraignment, we would have to wait for that to happen.

19:04 - And with the backlog there was significant delays

19:08 - and even things like an arraignment because we were working through that.

19:11 - So basically what we were doing is focusing on the critical functions.

19:16 - But then when things came up,

19:18 - we would be prepared and make sure we were prepared to go.

19:20 - When we did have that opportunity in October of 2020, for example,

19:25 - that's when we started.

19:26 - We called them triage conferences, which were basically a pretrial conference

19:30 - and just something

19:31 - to figure out the disposition that the case was going to proceed on.

19:35 - So at that listening is when the attorneys,

19:39 - the parties would figure out, is this going to be a jury trial?

19:42 - Is this going to be a bench trial once we or a plea,

19:45 - once we knew that it would get moved into the appropriate bucket.

19:48 - behind, of course, all the cases that were already there

19:51 - while all this while all of this was going on with Judge Del Ritchie's

19:54 - order suspended rule 600, did it not? Correct.

19:57 - So you're acting under a suspect, so no trials are going on at all.

20:02 - Correct?

20:02 - Is that correct?

20:04 - I mean, I'm going to get back to my original question.

20:06 - The order, did not suspend rule 600.

20:11 - The order said that delays

20:14 - attributable to the judicial emergency or to be excluded.

20:19 - I mean, that's really two different things.

20:21 - Some orders did, in fact suspend rule 600.

20:23 - Our original order suspended rule 600.

20:27 - Many of the, orders that we saw from other PJs across the state

20:32 - actually said rule 600 is suspended.

20:35 - That's not what they said.

20:37 - So our rule 600 was suspended.

20:41 - The Superior Court reviewed that May 5th order to find

20:44 - that our blanket suspension ended on May 31st, 2020.

20:49 - That May, fifth order acknowledged that there were both declarations

20:52 - and orders and then suspended only the orders and the declarations.

20:57 - The language is that rule 600 is suspended

21:01 - during the period of the judicial emergency.

21:05 - So our belief and what we operated under is that those declarations

21:10 - suspended the rule for the period of the judicial emergency.

21:14 - Then in the June

21:17 - 3rd order, which said something like delays caused in scheduling caused

21:21 - by the judicial emergency shall be excluded, shall be excluded, is mandatory.

21:25 - So again, we thought that was another

21:28 - is that mean, does that mean you just stop working?

21:32 - Now we see that that's sort of that's the point.

21:35 - That means I'm a little bit, it takes me back a little bit

21:40 - because I would think that your position would be we use due diligence,

21:45 - and good circumstances,

21:47 - as opposed to fighting the notion that you have to establish due diligence.

21:52 - I mean, you guys were sitting on your hands for eight months, nine months,

21:56 - and you could argue those.

21:58 - Truly. Yeah.

21:59 - I mean, that's why it sort of it's it just strikes me as being odd

22:03 - because I sort of the bottom line

22:06 - on what you're suggesting is we didn't have to do anything.

22:10 - And that can't be.

22:11 - I mean, you all of you were working.

22:14 - I mean, there were bench trials taking place during this time.

22:17 - And ultimately, this defendant had a bench trial, not a jury trial.

22:23 - Correct.

22:23 - And that decision is usually made because the case is moving along

22:27 - and you get to the point where it's going to be tried in.

22:30 - That's where the defendant would opt for a non jury trial.

22:33 - So, I just don't I don't understand the.

22:39 - That position, if it is your position

22:41 - that we didn't have to do anything during this time period,

22:46 - is that your position?

22:47 - I think that's part of my position because I think in a pandemic that is

22:53 - leading to many hospital hospitals and deaths, sometimes what you have to do

22:57 - when it's a public health crisis is is nothing.

23:01 - It is sit at home.

23:02 - We didn't do that and we did our best under the circumstances.

23:05 - But part of the issue and why we're here is because

23:09 - we don't have standards for what due diligence means in a pandemic.

23:12 - and cases have been dismissed because we don't have that.

23:16 - What has been happening in the lower courts

23:18 - is that they're applying the usual due diligence standards.

23:21 - So are you filing the bills?

23:22 - Are you is discovery complete?

23:24 - Are you trial ready?

23:26 - during the pandemic, with the backlog building based on the restrictions

23:30 - that were in place, for example, those triage conferences,

23:33 - when those first started in October of 2020,

23:35 - it wasn't that every judge then had a triage conference.

23:38 - It was 12 triage conferences a day with one judge.

23:42 - So yes, they resumed, but they were when everything started

23:46 - to pick back up things, there were severe limitations still in place.

23:50 - So due diligence during that time,

23:54 - we need guidance on what that means.

23:56 - I think I spent a lot of time thinking about this in my early on.

23:59 - My answer was, I have no idea what reasonable efforts are.

24:02 - Due diligence means in the context of a pandemic where the governor

24:05 - is telling you to stay home, I do not, but that ended.

24:08 - I mean, you know, that did not go on, throughout

24:12 - the entire period of time that we're talking about here. Correct.

24:16 - But we still had limitations from the president, judge, many of them.

24:20 - And we did try to, asked to resume different things sooner.

24:25 - And and that was just not an option for Montgomery County,

24:28 - which Montgomery County was dubbed the epicenter of the pandemic.

24:31 - And in Pennsylvania, when it hit, we happened to have a medical doctor

24:35 - chairing our commissioners.

24:36 - So we did our best to respond, but we had many restrictions in place

24:40 - that were meant to protect the public and in that respect,

24:45 - if we applied normal due diligence standards to this case, for example,

24:49 - passing discovery, things like that, when when Covid hit,

24:52 - we had desktop computers and no remote operations,

24:56 - the only way to compile and pass discovery would have been to go to the office.

25:00 - What that would have meant is violating our president

25:03 - judge's orders, keeping us from the office we.

25:07 - When the pandemic first hit, we were allowed to have four people

25:10 - out of more than 50 in our office, four out of that many people.

25:15 - So we had a choice to either violate those orders and try to go in.

25:20 - But there was an issue with that because part of it was that

25:23 - we had to give the sheriffs in a list of who was actually allowed in our office

25:27 - that day. If you were not on the list, they did not let you in.

25:30 - Can I stop you there?

25:31 - Did your office?

25:32 - Did the district attorney's office?

25:34 - have a policy as to how,

25:39 - how it was going to define due diligence under this pandemic?

25:43 - was that a matter for discussion and guidance from your superiors?

25:48 - We didn't have a formal policy.

25:50 - We were instructed to do our best, keep our cases prepped

25:54 - and ready to go for when they did get called in.

25:56 - But it was pretty much just stay safe.

25:59 - These are what this is what the president and judge is telling us to do.

26:01 - We're going to do that.

26:02 - And I think we were operating under the belief that 600 was suspended.

26:06 - So I think if we knew that a year and a half later, the Superior Court would

26:10 - come in and say that it wasn't suspended, we would have done things differently.

26:14 - But even if we made that choice, the first choice is to try to violate

26:18 - the emergency orders that were meant to protect us

26:20 - and the public and everyone and everyone in the courthouse.

26:23 - Assuming we could, we made the choice to ignore the order.

26:26 - We could get past the sheriff so we would make it into the office.

26:30 - Then you could only get it again so far, long

26:32 - before you would just be waiting for it to be scheduled.

26:35 - Which again happened in in as directed by the president and judge

26:39 - with court administration.

26:40 - So you would make the choice to violate all those orders,

26:43 - and then you could still only get your case

26:44 - so far along with since the bottom line is that you need to demonstrate,

26:49 - that if we determined your due diligence was required, that you exercised

26:55 - reasonable due diligence under the circumstances and correct.

26:59 - And I think after I have spent now, over a year

27:04 - thinking about what that means,

27:06 - where I landed is this due diligence during a judicial emergency,

27:09 - especially one that's based on health concerns for everyone in the state?

27:15 - Due diligence in that case means complying with orders from your president, judge

27:18 - complying with orders from this court, complying with orders from the governor.

27:22 - I would submit that that is reasonable effort.

27:24 - I think that's the most effort you can do, unless you want to pick a fight

27:29 - with your president and judge or the county that you work for.

27:32 - Well, that makes sense on one hand, but on the other hand,

27:35 - the due diligence were concerned with this, not just the general due

27:39 - diligence of the office, but the due diligence and moving cases forward.

27:44 - Right. So I have a question.

27:45 - Can I get an answer to that?

27:47 - Is that. That's right.

27:49 - Does that change your, calculus at all

27:52 - when you focus on that, definition of due diligence?

27:56 - Sorry. Can you repeat the first part of that?

27:57 - Sure, sure.

27:59 - you were explaining your due diligence.

28:01 - Says an office.

28:02 - The things that you did in your office.

28:04 - My question was, with respect to the focus of this case, due

28:10 - diligence and moving cases forward

28:13 - that would come under a rule 600 analysis.

28:16 - Does your analysis, does your argument change?

28:20 - I don't think so.

28:21 - you know, this case, I think, is a good example of a case

28:25 - where we obviously took steps to move it along because,

28:28 - within a few months after the run date, the mechanical run day,

28:32 - not the adjusted run day, within a few months, on three weeks

28:35 - notice, we coordinated over 40 witnesses, proceeded to a bench, a three day

28:39 - bench trial on over 70 charges, and introduced over 200 exhibits.

28:43 - We couldn't have done all that with three weeks notice

28:45 - if we weren't doing things during the pandemic.

28:48 - But I also recognize

28:49 - and we're here because not every case is that facts matter, and we do have cases

28:53 - where there might be seven months in between a preliminary arraignment

28:58 - and the ultimate pretrial conference or triage date.

29:03 - I don't know how to explain that, other than we were prioritizing

29:07 - the cases as directed by the president judge, and essentially

29:11 - just waiting for under the process that court administration is waiting for

29:15 - the docket to, to be reached.

29:19 - so it's it's

29:20 - those time periods that under normal circumstances,

29:23 - just waiting on the court administration isn't necessarily due diligence.

29:27 - So without something saying that following what the president judge tells you or

29:33 - it is reasonable efforts

29:34 - to just let court administration do its best to work through the backlog,

29:38 - we the normal due

29:40 - diligence standards, are going to result in cases being dismissed.

29:43 - And they have, so.

29:48 - I think even in terms of due diligence

29:50 - when it comes to an emergency that everyone knows called caused a backlog,

29:54 - we might also need something that says as long as court administration

29:58 - has some reasonable, method of moving cases along, us

30:03 - prioritizing the cases that are going to come up first

30:06 - isn't a lack of diligence in terms of the other cases.

30:08 - It's knowing that certain cases are going to be reached,

30:11 - prioritizing those first and then moving along.

30:14 - But when you do have a backlog, I believe the numbers, pre-pandemic, there were

30:19 - in the 4000, 4000 or so active cases

30:23 - with the backlog in the emergency restrictions and all of those things.

30:26 - Our backlog went up to over 9000 active cases.

30:30 - We didn't get double the attorneys, but we had double the cases.

30:33 - So we prioritize what was coming up first.

30:36 - And those are all reasonable efforts.

30:38 - But but that under traditional due diligence standards,

30:41 - that isn't necessarily due diligence, just waiting for your cases to get called.

30:45 - So we really need guidance from this court for everyone in the state,

30:48 - because other counties did use similar language to the court

30:52 - postponement, shall be excluded language.

30:56 - So we need guidance that recognizes

30:58 - this was a scary time and everybody was doing their best.

31:02 - We trusted our president and judge who trusted, the

31:06 - I believe the language is wide authority or substantial discretion

31:11 - under rule 1952 that this court gave him.

31:14 - And he exercised that.

31:15 - And we didn't question anything he did because we knew this is about safety.

31:19 - This is about protecting the public.

31:21 - Council,

31:23 - getting back to this point and,

31:25 - you know, honestly, I think this is a tough question,

31:27 - because we were responsible for allowing president judges

31:31 - to do what happened during the pandemic.

31:33 - So certainly the buck stops here with that.

31:35 - But there's one thing to declare, a, judicial emergency.

31:41 - And that, of course, impacts entrance

31:43 - into the courthouse and thing, jury trials and things of that nature,

31:47 - which is distinct from what the district attorney's office can or should be doing

31:52 - in terms of moving cases along to the best of the DA's ability.

31:58 - And I keep getting back to that,

32:00 - because to me, they are really two different things.

32:03 - different counties handled this very differently.

32:06 - and I know we don't have an equal protection,

32:10 - argument before us here, but, you know, defending in different counties

32:14 - ended up in very different situations as a result of this.

32:18 - But, why is it that the I'm going to ask again,

32:23 - are you saying that there was no due diligence, duty

32:28 - during the judicial emergency period?

32:31 - In other words, you could sit on your hands for 11 months

32:35 - because there was a declaration of a judicial emergency.

32:39 - Yes, I am saying that.

32:41 - However, I would note there is no incentive to do that

32:44 - because when when the emergency ends, our cases are coming back.

32:47 - So there's no incentive for us to sit there and do nothing.

32:50 - We weren't doing nothing because we were prioritizing our critical functions.

32:53 - And,

32:56 - there's also the constitutional speedy trial analysis.

32:59 - So it's not the defendants are left unprotected by us

33:02 - complying with the president judge's orders.

33:04 - They can still raise constitutional speedy trial claims,

33:07 - which would then consider the length of the entire delay.

33:10 - So it's not while yes, I think when a president judge

33:14 - under a judicial emergency exercises emergency powers and suspends a rule,

33:19 - I think yeah, we we technically could sit and do nothing.

33:23 - However we didn't I don't know that any office ever really would.

33:28 - But this has to be flexible because any other interpretation is dangerous.

33:34 - well, I'm during this time period where you collecting discovery

33:38 - or were the various police departments throughout the county providing

33:41 - the necessary discovery?

33:44 - Yes. Eventually, again, when we first started,

33:48 - we didn't have remote or any operations for discovery like that.

33:52 - It took time to get we eventually got those in place.

33:55 - It took time to do so.

33:56 - during this time period, the Commonwealth was

33:59 - you were requesting discovery from the various police departments.

34:02 - Quite the fact I've been going to justice Donahue's question.

34:06 - You guys, in fact, still attempted to pursue the prosecution

34:10 - by seeking the necessary discovery during this time period

34:13 - that you weren't allowed into the courtroom.

34:15 - Correct. Okay.

34:16 - And, with our eventually we were allowed eight people in the our office.

34:22 - let me let me.

34:24 - I'm just trying to.

34:25 - What is it you're asking?

34:27 - Just as

34:28 - you keeps coming back to the same point and you're kind of dancing around it.

34:31 - We're the Supreme Court, right?

34:33 - So we have to fashion a rule that is going to be applicable

34:36 - to every county in the Commonwealth of Pennsylvania.

34:39 - So are you suggesting a blanket rule that for whatever time that the court issued

34:44 - an emergency motion that the Commonwealth doesn't have to show due diligence?

34:48 - Or are you suggesting which I think you're suggesting

34:51 - in response to Justice Donoghue and Justice Socrates questioning that

34:54 - this really requires a case by case analysis?

34:56 - No different in part there, Carl,

34:58 - because if you recall on those particular cases, and all

35:01 - I could think of is I think Justice Daugherty wrote the dissent in hearts.

35:04 - But you come out of a pandemic, right.

35:07 - And then the first listing for the trial, you say,

35:10 - we don't have discovery, so we need another three months.

35:13 - Well, did that show due diligence?

35:17 - We're not ready for our witnesses because we've had no conversations

35:19 - with our witnesses. Is that due diligence?

35:21 - So what are you looking for us to kind of fashion a blanket rule?

35:24 - Are you saying that this should really be a case by case analysis

35:28 - to determine due diligence?

35:30 - I think the answer to that question is, both and all explanation

35:34 - around my question. I'll explain.

35:36 - So I think the general rule

35:39 - needs to be that delay all courts, all parties.

35:42 - Everyone agrees. Again, how can it be both?

35:45 - Because if you give me a blanket,

35:46 - okay, in the case of judicial emergencies, you don't have to do anything.

35:49 - If you come out of a judicial emergency

35:51 - and you're not ready on the first listing of the case,

35:53 - how can you say with a straight face, judge, we show due diligence.

35:59 - Okay, so the blanket rule,

36:02 - I'll start there, and then I'll move to when we come out of the pandemic.

36:05 - That's okay.

36:06 - the blanket rule needs to be that judicial delay caused by,

36:12 - a judicial

36:13 - delay caused by a judicial emergency is excluded without the need

36:16 - for the lower court to assess due diligence.

36:20 - If we go beyond that.

36:23 - And I don't necessarily think that you need to,

36:25 - but I understand we need guidance. So

36:29 - how this will work is that this court allowed

36:32 - president judges to suspend the rule until August 31st, 2021.

36:36 - That time period is excluded. Period.

36:39 - No need to assess due diligence.

36:40 - There should be a presumption of exclude ability unless

36:42 - and until the Commonwealth has shown that they're not ready

36:45 - for that time period, it's excluded.

36:48 - Period. once.

36:51 - So September 1st, 2021, we come back, you went to time.

36:55 - Do you want the time clock to begin running again?

36:57 - As soon as the case is listed for trial as a as opposed to what happened in heart?

37:04 - Yes, I think after it, once

37:06 - we hit September of 2021, you kind of it looks more of like a traditional analysis.

37:11 - For example, if if the hypothetical is that

37:14 - we come back and three months later, that's the first triage conference.

37:19 - If at that conference,

37:21 - the Commonwealth says, you know, we need more time to do x, y, z, that's

37:26 - when you look at for that three month period where we delay diligent.

37:29 - That's a relevant talks about relevant time periods.

37:34 - So that time period, if the Commonwealth was not making efforts

37:37 - to complete discovery or move this case along, that time still counts.

37:40 - But really, shouldn't we expect more than that?

37:43 - Should we expect the district attorney's to say, well, yes, we didn't have to.

37:48 - We weren't able to exercise the normal degree of due diligence.

37:53 - But even though there was a suspension of rule

37:55 - 600, we did what we could.

37:58 - We exercised what was reasonable due diligence during that period.

38:03 - You're arguing you don't even need to do that

38:06 - during the judicial emergency, correct?

38:08 - I don't think we need you to do that.

38:10 - Our president judge had directions from this court.

38:12 - once we get back, I think our diligence comes back into play.

38:16 - and during that time period,

38:21 - we would have.

38:22 - But here's the thing.

38:23 - If we weren't making efforts during the pandemic,

38:26 - we wouldn't be able to show it soon after.

38:28 - Well, let me go back to this particular case,

38:30 - although we're going to render a decision that impacts the whole Commonwealth.

38:34 - But with respect to this case,

38:36 - is it your position that, I know it's your position.

38:40 - You didn't need to, but is it your position that the Commonwealth did

38:44 - exercise due diligence, as was reasonable

38:48 - during the pandemic on this case? Yes.

38:52 - discovery or two?

38:53 - Honestly apparent. Yes.

38:54 - discovery was complete.

38:56 - cases were joined timely.

38:58 - We filed the bills.

38:59 - we proceeded the bench trial happened shortly after we came back.

39:04 - but I know not every case is like that.

39:06 - And I agree with you that, you know, maybe making

39:09 - as long as we can show that we make reasonable efforts, we're fine.

39:13 - But that's not what the

39:14 - that's not the standard that the that the lower courts currently have.

39:17 - All they have is, is the normal due diligence stuff where if your bills

39:21 - weren't filed within a few months, that's a sign that you weren't duly diligent

39:25 - during Covid.

39:26 - We have many cases

39:28 - where our bills might not have been filed for eight months or more.

39:31 - so I think if you want to go that route, we need guidance in that respect to that.

39:35 - Look, this was a scary, unprecedented time.

39:39 - And due diligence in this case is in filing bills

39:43 - within two months of the case coming up or things

39:45 - or getting the formal arraignment within two months of that.

39:48 - It's reasonable efforts complying with the orders and things like that.

39:52 - And but that's the issue because we don't have that cases are being dismissed.

39:56 - so I think no matter which way we go, we definitely need guidance.

40:01 - And I would submit, though, that under the plain text of rule 600,

40:06 - delays caused by the Commonwealth, when it has failed to exercise due

40:10 - diligence are included.

40:12 - Any other period of delay is excluded.

40:15 - So in Commonwealth versus Johnson, this court

40:17 - explained that that meant there were two requirements

40:19 - for delay to be included that it's caused by the Commonwealth

40:23 - and and the Commonwealth has failed to exercise due diligence.

40:26 - The next sentence said something like if the Commonwealth did not cause a delay

40:31 - or they did, but they were delayed, it's excluded.

40:34 - This is a case that all parties and all courts agree was not caused

40:37 - by the Commonwealth.

40:38 - There has never been anybody to say that it was caused by the Commonwealth,

40:41 - or that anything we did or didn't do delayed this trial, this.

40:45 - So in this case, and many others like it when you when there's a finding

40:50 - from the lower court that a backlog in the judicial response caused the delay,

40:56 - rule 600 C

40:57 - one comes in as an excuse that as an other period of delay.

41:02 - Okay.

41:02 - I think we understand your your position.

41:05 - Do any of the justices have any further questions.

41:09 - All right.

41:10 - Thank you.

41:10 - Let's hear from your opposing counsel.

41:17 - Okay.

41:21 - Good morning, Madam Chief Justice.

41:23 - Fellow justices, if it please the court, I,

41:26 - James Brown Lee, on behalf of, Jason Leer,

41:30 - I guess let me start by saying I don't think anyone disputes

41:34 - and certainly the defense does not that the pandemic wasn't a very difficult,

41:39 - very trying time or that that can't be a factor

41:44 - to be weighed by the court in assessing due diligence.

41:48 - just as this court's, emergency orders indicated, it could be a factor

41:52 - in assessing compliance with the speedy trial. Right.

41:55 - If your discovery was a month late because your sign investigator

41:59 - was in the hospital with Covid or, you know, if you couldn't

42:02 - get to your computer, those are all things you can recognize

42:05 - at inherent in due diligence, I think, is reasonableness.

42:09 - You know, what is it

42:10 - reasonable to expect the Commonwealth to do under these circumstances?

42:14 - And obviously that's going to change from, you know, a worldwide pandemic to,

42:18 - you know, today, you know, where everything's running smoothly.

42:21 - But that doesn't mean you throw the baby out with the bathwater

42:26 - and in essence, find that the pandemic amounted to a due diligence

42:30 - free card, a 15 month one in which even if the prosecutor just sit and watch

42:35 - Game of Thrones reruns for the whole time, that somehow that's still okay.

42:40 - but that's really

42:41 - what the Commonwealth argues in with respect to this individual case.

42:45 - Why I think remand was appropriate by the spirit court

42:49 - is there's really not a record as to what the Commonwealth did here.

42:54 - They may have been due diligent. We don't know.

42:56 - That's because what you would normally expect that a rule 600 hearing

43:00 - happens at the Commonwealth to,

43:03 - memorialize their due diligence.

43:07 - If historically, it's based upon the court, the record and the

43:12 - the comments written in the, our court files,

43:15 - if all that is suspended by order of president,

43:19 - judge directly, how would the how does the Commonwealth show it?

43:23 - I think at the rule 600, hearing you make a record, you show

43:27 - this is when discovery was requested.

43:29 - This is the email where we sent it.

43:31 - This is the emails or whatever request we made of court administration

43:35 - to try to list this thing faster.

43:37 - Mr. Lear was arrested initially in May 19th of 2020.

43:43 - Montgomery County began its, quote,

43:46 - triage process for where you request a waiver trial or a plea.

43:49 - In August of 2020, Mr.

43:52 - Lear didn't get a triage conference until August of 2021.

43:57 - so I think it

43:58 - what you would normally would expect is once, October 2021 rolled around

44:03 - and we had a rule 600 hearing that you would again

44:06 - offer evidence supporting what you were doing during that time.

44:10 - Was Mr.

44:10 - Lear in or out of custody during his time in custody?

44:14 - Okay.

44:14 - Yeah.

44:18 - Just as Donahue touched on and Your Honor just said that rule

44:21 - 600 was suspended for this entire time, I would differ with that.

44:27 - for the reason that Justice Donahue mentioned.

44:29 - And, in fact, that that is even more apparent

44:31 - when you look at the chronology of emergency orders issued by judge del.

44:36 - Ritchey, his first one on March 16th, which, which,

44:41 - you know, er indicated there was a judicial emergency

44:45 - to April 14th, he said very clearly was based on

44:49 - basically the template, that this court

44:52 - had issued and said rule 600 suspended.

44:55 - He issued another 1st March 31st,

44:57 - extending it to April 30th again.

45:00 - Rule 600 suspended clear as day.

45:05 - But what about the May 28th

45:08 - order, where he just extends the emergency order for he at that point adopts

45:13 - and actually at that point as an adopted he adopted it clear back on April 14th.

45:18 - The third order he issued did not, use the same language

45:23 - and instead use the language that any delay

45:27 - caused by the judicial emergency shall be excludable.

45:31 - And I would say inherent is that in that is really a hard analysis

45:35 - by any other name.

45:36 - In other words, was this solely due to, you know, pandemic delay, or is there

45:42 - some showing of lack of due diligence that it can be attributed to instead?

45:46 - And I think inherent in any robe, you know, the most basic

45:50 - rule of interpretation, be it statutory interpretation here, judicial order

45:54 - interpretation is when someone changes the language on something,

45:58 - they do it for a reason.

46:00 - And I think the reason here is very apparent.

46:03 - When Judge Joe Ritchie issued the April 14th order

46:07 - at that point, the statewide suspension only went to May 31st.

46:11 - Give me April 30th.

46:13 - His order was extending it beyond that.

46:16 - That date by a full month clear till June 1st.

46:21 - And I think he wanted to tread lightly and not completely

46:24 - suspend rule 600, especially given the length of time.

46:28 - I think that was again, his reasoning on the June 3rd order that

46:32 - Justice Daugherty mentioned, which was indefinite.

46:36 - it's one thing to suspend rule 600 for two weeks.

46:39 - It's another to say that the Commonwealth has to exercise no diligence

46:44 - for an indefinite period of time, and it ended up being 15 months.

46:48 - You're suggesting that there should not be a blanket rule,

46:50 - and there should be a case by case analysis, like half.

46:53 - Exactly.

46:54 - If you look at what was done, was it reasonable?

46:56 - You can certainly factor in. Back out.

46:59 - Pardon me. Let me back you up. Sure.

47:02 - Daugherty just asked you a question during the period of 90 days

47:05 - or since to say, for the sake of argument,

47:06 - there's a 90 day suspension order in effect or nine months,

47:10 - whatever it is, what is due diligence look like?

47:13 - I would argue the reason I ask you that question is part this occasion.

47:17 - If you recall, there was a delay.

47:18 - It came out of the lane in the first listing.

47:20 - The Commonwealth said, we're not ready. We didn't complete discovery.

47:23 - We didn't, we didn't contact our witnesses.

47:25 - And the judge said, wait a minute.

47:27 - You know, we've been doing for the last 6 or 9 months,

47:29 - threw it back for a due diligence analysis of danger.

47:31 - That question in this particular case, what are you suggesting the Commonwealth

47:36 - has to show during the periods where in this instance, courts are closed?

47:41 - I would argue first, they need to show

47:44 - and the court is previously in the Edwards Hoc line of cases indicated.

47:48 - There needs to be some efforts to move the case along.

47:51 - I understand there was a huge backlog.

47:53 - And again, but at least you're making the request.

47:57 - and if you're told, no, we can't accommodate that, you tried.

48:01 - More importantly, you also have your discovery obligations that I think

48:05 - you make the argument that this was caused by the courts, this court delay,

48:09 - and therefore it's not excludable

48:11 - remember back in the day when you were in the Philadelphia DA's office

48:13 - and you would ask for a defense attorney, would ask for a continuance?

48:16 - The first thing you would ask the trial judge is judge time ruled Excludable

48:20 - right. And it would be a notation to Justice Socrates point.

48:23 - There would be a notation on the file for the appellate court to say,

48:26 - well, that's excludable time, or what we would sometimes call extendable time.

48:30 - There would be on the record determination.

48:32 - But where courts are closed, how do you make that determination?

48:35 - I think it can be documented and certainly could even be done

48:38 - via testimony of the Da assigned to the case that I made these requests.

48:43 - they couldn't be accommodated.

48:45 - here is when I pass discovery.

48:47 - Here is when it was requested.

48:49 - here is when I requested the earliest possible date,

48:52 - which is another thing we always had to do when I was a Da.

48:55 - In that time, the case was continued.

48:57 - You document those things. There's no record of that here.

49:00 - Largely because at the rule 600 hearing, the defense

49:06 - rule 600 motion allege 123456789

49:10 - ten different environments alleging lack of diligence,

49:13 - one of them alleging lack of due diligence, providing discovery.

49:17 - And it rested on that.

49:20 - that should have really turned to the Commonwealth

49:21 - and at that point, to bear the burden,

49:24 - put some sort of evidence via documentary evidence or testimony

49:27 - or what have you, establishing the efforts that they made.

49:31 - Instead, they just rested on their pleadings,

49:33 - but their pleadings basically were the same argument

49:36 - they're making today, that when you do anything, it's suspended.

49:39 - So they're consistent, Premier, at least they're consistent.

49:43 - Yes, they're at least consistent.

49:45 - so I think one rule, certainly

49:50 - from June 3rd on rule 600 wasn't, quote, suspended.

49:54 - what they were required was to show due diligence,

49:58 - which is why I think the Superior Court, properly remanded this matter.

50:02 - Just another thing I think it's important to note that

50:05 - come with in touch on it here.

50:07 - But in its breathe it asserts that hearth never applied to system wide delay.

50:13 - I think that's an incorrect reading of heart.

50:15 - one of the big chunks of time and hearth

50:18 - was actually the people visit to Philadelphia.

50:21 - I know two members of the court were on the first or just district

50:25 - bench at the time.

50:26 - I think you'll be glad to correct me if I'm wrong,

50:28 - but in other words, that shut down the entire Philadelphia court system, in fact,

50:32 - shut down all the center city Philadelphia people playing

50:35 - Frisbee in the middle of Broad Street and all sorts of stuff.

50:38 - so hearth in and of itself deals with the types of,

50:42 - you know, types of system wide delays that we're dealing with here.

50:46 - This is on a much grander scale for a much longer period of time.

50:50 - But I think that's really the beauty of hearth is it

50:53 - is it factors those things in that's what due diligence

50:56 - is, its reasonableness, what efforts were you're making.

50:59 - But you have to show you were making reasonable efforts.

51:02 - Let me ask you this question because this is something that's long kind

51:05 - of, germinated in the back of my mind.

51:08 - Is there a corresponding obligation on the part of the defendant?

51:13 - Rule six hundreds of successor to rule 1100, right.

51:16 - It's an order.

51:16 - That's basically that's a rule that's

51:18 - codifying a speedy trial, a constitutional right to a speedy trial.

51:22 - I'm thinking, what if the defense attorney doesn't do

51:24 - anything to contact court administration to move the case forward?

51:27 - Are we looking at an ineffective assistance of counsel claim?

51:30 - Should there be a corresponding obligation because you're saying Commonwealth's

51:33 - got to do be due diligent Commonwealth's got to move this case forward.

51:36 - Commonwealth has to ask for a date earlier than the run date.

51:40 - Doesn't the defendant have the same obligation or defense attorney

51:43 - or settlement as with so many things in the criminal justice system?

51:47 - justice McCaffrey, the I think the burden lies with the Commonwealth.

51:52 - the defendant is the one who is sitting in prison.

51:54 - if you want to keep him there and you want to try him, it's incumbent

51:58 - upon the Commonwealth to, to comply

52:02 - and make their reasonable efforts to try to get him to trial.

52:05 - I always say that a criminal defendant is sort of like a groom at a wedding.

52:09 - You're only obligations to show up.

52:11 - and, it's, a I think that's much the same here.

52:17 - You are correct in terms of, a barker, a window analysis, speedy trial.

52:23 - Right.

52:23 - Then how quickly you assert the right is a factor that bacon considered.

52:27 - But that's not the case under rule 600.

52:29 - That's not what the language indicates.

52:32 - so I don't know that, it's really incumbent

52:34 - on the, on the defendant, to do that.

52:37 - I mean, may I ask a question? Sure.

52:40 - Is there a question, in the lower courts

52:44 - about the, concept of reasonableness

52:48 - in, in this do diligence analysis?

52:52 - Because certainly, the circumstances of the pandemic,

52:56 - is, is something that would have to be taken into account.

53:01 - Do you not agree?

53:02 - Absolute analyzing, due diligence.

53:05 - Do you perceive

53:06 - a, misunderstanding on the part of the lower courts in terms

53:11 - of adding that reasonableness concept into due diligence?

53:15 - There seems to be,

53:18 - the two major published opinions, Carl.

53:21 - And this this case indicates, you know, but they deal with different orders.

53:27 - Carl, of course, has the blanket rule 600 suspension.

53:32 - whereas Lear here, I think does recognize the reasonableness.

53:36 - The thing is, I think they wisely I and we did not challenge this at all said

53:41 - that based on the record we have here, we can't make that determination.

53:45 - What we need is to have this sent back

53:47 - and see if the Commonwealth, you know, when given the chance,

53:50 - can establish that they were making those reasonable efforts.

53:54 - in the context of the emergency, of course.

53:58 - Yeah.

53:59 - I mean, normally if your bills are drafted in 30 days after arraignment, but you

54:03 - they were drafted in 60 here

54:04 - because no one could get to a computer because the office was closed.

54:09 - Of course, that's that's something they can factor in.

54:11 - It's another show that no one, no one did anything, you know, the latter

54:16 - I think, would clearly, you know, be a breach of, of the due diligence

54:21 - requirement that Hart imposes and rule 600 and just one other thing I would note.

54:27 - I mean, the Commonwealth indicates cases are being thrown out.

54:32 - I have to say, at least for our office in Montgomery County,

54:35 - Lear has been the law now,

54:38 - since February 23rd, I think 2023.

54:42 - And in that time it's been binding on the trial court.

54:46 - there hasn't been some sort

54:47 - of apocalyptic emptying of the jails or anything like that.

54:51 - there's only been one case that our office is one

54:54 - on a roll 600 motion in that time under Underlier,

54:58 - and it was sort of a comedy of errors, or there really was just,

55:03 - just short of

55:03 - watching Game of Thrones Thrones reruns the whole time.

55:06 - the other time, the Commonwealth, I'm glad to say, as a citizen,

55:09 - was doing his job and they've been able to show

55:12 - this is what we were doing, this is the efforts we were making.

55:15 - And I think that's that's, the appropriate remedy here

55:18 - is to send this back, and to see if they were duly diligent,

55:22 - how the court order arrives at that question is really what?

55:28 - We'll have a system wide effect here.

55:30 - It's one thing to say, yes, this is a very trying time.

55:33 - It can be certainly considered.

55:35 - How, on the other hand, to neutral rather in the way the Commonwealth asks,

55:39 - because what they're really asking for is anything short of just, you know,

55:44 - congested calendars that somehow the due diligence requirement is out the window.

55:50 - isn't it really?

55:51 - And it's we went through a really difficult time in in

55:54 - all fairness, I'm troubled by this case

55:58 - only because, it was our court that issued an order

56:03 - to say we suspend rule 600.

56:05 - We didn't say we suspend rule 600,

56:09 - but we still expect you to exercise due diligence.

56:12 - And when we, allowed the trial courts to issue their emergency orders,

56:18 - we delegated them to find out what was necessary,

56:22 - to keep their residents and court users, safe.

56:26 - And these orders never said.

56:28 - They said we suspend rule 600

56:31 - or we exclude the time under rule 600.

56:34 - But never did any of those orders say to the Commonwealth,

56:37 - but we still expect you to exercise and document your due diligence.

56:43 - so now it's always 5050

56:45 - looking back or 100% view, when you're looking back

56:49 - through the window, a time and, I feel a little bit,

56:54 - unfair to the Commonwealth because from what,

57:00 - the advocate for

57:01 - the Commonwealth Office argued here today,

57:05 - they did do their best to exercise due diligence,

57:08 - despite the fact that none of their orders requested or required them to do so.

57:14 - I think first, it's important to note that the blanket suspension

57:17 - you're referring to in your orders, basically ended on June 1st.

57:21 - So for only 12 days of Mr.

57:24 - Lear's incarceration, was the blanket suspension in effect after that?

57:29 - It the only thing in effect was Judge Joe Rich's order.

57:33 - And again, I think they were on notice, quite frankly,

57:36 - given the change in the language from the original

57:39 - two emergency declarations to the third one and the fourth one,

57:43 - which no longer said rule 600 suspended it and said instead said a true,

57:48 - you know, delays caused by the judicial emergency.

57:52 - I think at that point they should have been on notice that you

57:56 - we have to comply with our due diligence requirements.

57:59 - And then I think, again, council's made quite a few assertions here,

58:04 - but I think it needs to be a case specific thing.

58:06 - Not we were doing this as an office wide.

58:09 - What did you do for Jason Lee or.

58:11 - and that can only really be addressed in a hearing on remand,

58:15 - which is why I think the Superior Court should be affirmed here.

58:17 - Thank you.

58:22 - Before we call the next case, Mr.

58:24 - Minter, I'd like to welcome the students who are with us today.

58:28 - we have the Lower Dauphin

58:31 - High School youth and Government club

58:34 - judicial branch, which, indicates

58:37 - that they have three branches to their youth and government club.

58:41 - I'd like to ask them to stand so that the court may recognize them.

58:46 - Welcome.

58:46 - Thank you for being here.

58:51 - Hopefully we have some future lawyers in that group.

58:55 - these students are here at the invitation of Justice Donoghue.

58:59 - But I would remind, you all that

59:02 - we always welcome students high school, college and law students.

59:06 - So please, encourage your classes and,

59:10 - clubs to come and visit us in our three courtrooms.

59:14 - We're always delighted to see you.

59:17 - Our next case

59:17 - is County of Northumberland versus Township of Cole.

59:21 - The Refund Act is a law that authorizes political subdivisions to refund money

59:26 - that is inadvertently paid, or which is caused to be paid

59:31 - to a political subdivision, such as a township,

59:34 - when the fee or charge is subsequently determined to be invalid.

59:40 - This case is about what a party seeking

59:42 - reimbursement needs to do to perfect its claim

59:46 - by way of history.

59:47 - In January of 2015, the Northumberland County Prison was destroyed by fire.

59:53 - In June of 2016,

59:55 - Northumberland County purchased property within Coal Township for the purpose of

59:59 - 865 converting an existing juvenile detention center

01:00 - 06.502 to into the county's new prison.

01:00 - 10.206 In August of 2017, before the prison project started,

01:00 - 14.377 the county submitted permit applications to Coal Township

01:00 - 17.880 for renovations of existing buildings and new construction

01:00 - 20.850 that was located on the recently purchased property.

01:00 - 25.121 Two days later, the county received invoices from Coal Township

01:00 - 30.727 in the one in the amount of a little over $161,000,

01:00 - 35.431 and one a little over the amount of $220,000.

01:00 - 40.236 Coal Township calculated these amounts at accordance with the Township ordinance,

01:00 - 44.874 based on the county's submissions to Coal Township regarding the estimated

01:00 - 45.875 cost of the project,

01:00 - 48.311 Northumberland County paid

01:00 - 51.381 the first invoice of a little over $161,000.

01:00 - 56.853 Coal Township reminded Northumberland County of the $220,000 balance

01:00 - 01.057 that had not yet been paid, and threatened to stop work on the prison project

01:01 - 04.394 if the remainder was not paid.

01:01 - 07.397 In September of 2017,

01:01 - 10.767 Northumberland County sent payment to Coal Township

01:01 - 16.539 in the amount of $220,801, with a statement saying that the payment

01:01 - 20.243 was being made under protest and threatening legal action.

01:01 - 26.015 They also demanded proof the township showed that the incurred cost

01:01 - 30.486 for the first invoice, which were which were related to the inspection fees

01:01 - 34.957 in the second invoice, which which the township referred to as a permit

01:01 - 39.295 fee, were reasonable and actually incurred.

01:01 - 44.434 Northumberland County ultimately did file a lawsuit against Coal Township,

01:01 - 47.704 seeking a refund of the amounts that it paid

01:01 - 50.707 to the township, claiming that the township buildings, fees, built

01:01 - 55.078 townships, and building fees were unreasonable and unenforceable,

01:01 - 59.415 and they requested a refund for the excess of the townships

01:01 - 03.453 or the excess of the amount paid over the township's actual expenses

01:02 - 06.622 in administering the building permit process,

01:02 - 10.159 the trial court in Northumberland County found

01:02 - 16.065 that there was a total of $269,000 in fees that were assessed by Cole Township

01:02 - 19.302 that could not be justified based upon

01:02 - 22.305 what the township actually expended.

01:02 - 24.140 The township was directed

01:02 - 27.143 to refund that money back to the county.

01:02 - 29.979 But what's at the heart of the case here

01:02 - 33.816 is whether or not Northumberland County complied with the statutory profit

01:02 - 37.687 provisions of the Refund Act, which requires

01:02 - 42.425 that a written and verified claim be filed with a political subdivision

01:02 - 46.195 prior to commencing litigation, to seek

01:02 - 49.432 a refund of contested fees.

01:02 - 52.969 Coal Township contends that Northumberland County by sending a letter

01:02 - 57.340 stating that it was making payments under protest and threatening litigation,

01:02 - 00.543 was not in strict compliance with the Refund Act.

01:03 - 04.213 On appeal to the Commonwealth Court,

01:03 - 05.448 the Commonwealth Court held

01:03 - 09.285 that the letter sent by Northumberland County to Coal Township that the payment

01:03 - 12.922 was being made under protest and threatening litigation, was sufficient

01:03 - 17.493 to meet the Refund Act's written and verified claim requirement

01:03 - 20.763 to notify coal Township that a claim may be pending against it.

01:03 - 25.401 Coal Township has now appealed that ruling to the Pennsylvania Supreme Court.

01:03 - 28.304 Let's go to the court and hear arguments

01:03 - 31.307 on County of Northumberland versus Township of Coal.

01:03 - 33.843 Good morning, Chief Justice.

01:03 - 36.179 Fellow justices may have pleased the court.

01:03 - 39.649 My name is Michael Winfield, and I'm here on behalf of the Township of Coal,

01:03 - 42.718 as outlined by the Chief Justice.

01:03 - 46.656 This case invariably involves the interpretation of a statute,

01:03 - 50.827 and this court is well versed in what that requires.

01:03 - 55.064 there's probably no better established body of jurors prudence

01:03 - 58.467 than that interpreting statutes in this Commonwealth.

01:03 - 02.405 The Statutory Construction Act is the guidepost

01:04 - 04.407 for the interpretation of statutes.

01:04 - 05.408 This court has issued

01:04 - 10.012 hundreds of opinions over the years regarding the application of that statute.

01:04 - 13.282 And in fact, three decisions have already been issued this year.

01:04 - 15.484 Yesterday you heard a case.

01:04 - 18.254 the first case out of the gate was on the statutory construction Act,

01:04 - 21.524 which, consistent with almost all of your opinions

01:04 - 25.261 that come forth, is how the case is set up in terms of the analysis.

01:04 - 30.600 And I want to refer to a decision that was issued this year in 2024,

01:04 - 33.569 authored by judge or Justice Robson,

01:04 - 35.238 that dealt with the Statutory Construction Act.

01:04 - 38.241 That's that's dangerous. Yes,

01:04 - 39.709 they all start out similarly.

01:04 - 42.845 And in saying that we are guided in our analysis

01:04 - 47.550 by the Statutory Construction Act of 1972, which provides that the object

01:04 - 49.285 of all statutory interpretation

01:04 - 52.788 is to ascertain and effectuate the intention of the General Assembly.

01:04 - 55.892 Generally, the plain language of the statute provides

01:04 - 58.895 the best indication of legislative intent.

01:04 - 02.131 If the statutory language is clear and unambiguous

01:05 - 05.201 in setting forth the intent of the General Assembly,

01:05 - 07.937 then we cannot disregard the letter of the statute

01:05 - 10.806 under the pretext of pursuing its spirit.

01:05 - 14.744 In this vein, we should not insert words into a statute that are plainly not there.

01:05 - 18.614 When the statutory language is ambiguous, however, we may ascertain

01:05 - 23.152 the General Assembly's intent by considering the factors set forth

01:05 - 26.289 in the Statutory Construction Act

01:05 - 28.591 and other rules of statutory construction.

01:05 - 31.994 Moreover, words and phrases shall be construed according to rules of grammar

01:05 - 34.463 and according to their common and approved usage,

01:05 - 37.466 though technical words and phrases in such others have a

01:05 - 41.003 as have acquired a peculiar and appropriate meaning,

01:05 - 44.874 or are defined in, the Statutory Construction Act shall be construed

01:05 - 48.311 according to such particular and appropriate meaning or definition, and

01:05 - 51.914 we also presume that the General Assembly does not intend a result

01:05 - 55.985 that is absurd and possible of execution or unreasonable,

01:05 - 59.922 and that the General Assembly intends the entire statute

01:06 - 01.390 to be effective in certain.

01:06 - 04.293 That's generally

01:06 - 07.296 the language that is used in all of your decisions.

01:06 - 11.834 What's what's, noteworthy here is

01:06 - 15.171 even though this is a case involving the interpretation of a statute,

01:06 - 20.476 none of the lower courts ever referenced the Statutory Construction Act,

01:06 - 24.313 nor did they follow this analysis in reaching their decision

01:06 - 29.618 with the lower court, did Is took a statute which contained certain

01:06 - 34.590 specified steps to effectuate a remedy conveyed by the legislature,

01:06 - 38.327 and exercised one of the requirements set forth in those steps.

01:06 - 42.064 And they did it without referencing

01:06 - 45.067 that that the statute was on or was ambiguous.

01:06 - 45.735 They did it

01:06 - 49.138 without referencing a justification under the Statutory Construction Act.

01:06 - 52.742 They did it in violation, really, of the principles

01:06 - 55.745 that have been established over and over and over again.

01:06 - 57.880 And the core of those principles.

01:06 - 00.282 And I'm struck by something that, Chief Justice

01:07 - 04.220 Todd said at the very beginning today and that this this court

01:07 - 08.758 was placed on this floor, right, as an example of separation

01:07 - 13.095 between this body and this branch and the legislative branch.

01:07 - 16.999 And that's really at the core in the essence of the Statutory Construction Act.

01:07 - 22.171 It's to it's to recognize the distinctions and the roles of the various branches.

01:07 - 25.741 And it's not for this court to legislate,

01:07 - 28.744 and it's not for the legislature to adjudicate.

01:07 - 31.981 And so the Statutory Construction Act provides us our map.

01:07 - 36.419 It provides us how we go through and analyze when we have a statute to interpret it

01:07 - 38.888 here.

01:07 - 40.923 So, counsel, if I might.

01:07 - 43.893 Yes. what what

01:07 - 46.462 what would this verified

01:07 - 49.465 request look like in your mind?

01:07 - 53.469 Well, verification has is I know it's difficult to find requires

01:07 - 57.406 both and I swear that what I swear that the facts set

01:07 - 00.776 forth in the following claim are true and correct to the best of my knowledge.

01:08 - 01.510 Information, please.

01:08 - 01.911 Subject.

01:08 - 04.914 Okay, now here's the problem I have with that.

01:08 - 06.982 the county

01:08 - 10.252 of Northumberland asked Coal Township

01:08 - 13.956 for a specific portion

01:08 - 18.461 of the actual costs that were incurred in the permit.

01:08 - 20.696 inspection.

01:08 - 22.698 They got no response.

01:08 - 25.701 Now, had there been a response to that?

01:08 - 27.536 I understand your point.

01:08 - 31.607 Then they could say we, hereby make demand for,

01:08 - 36.645 $107,000, which is the excess of the amount

01:08 - 40.216 charged versus, that which were the actual costs.

01:08 - 43.052 but they got no response to that.

01:08 - 48.390 So as I'm, as I'm seeing this situation as it's presented to us,

01:08 - 53.262 what you anticipated was a letter that says,

01:08 - 57.366 we swear that we are demanding payment of excess costs,

01:08 - 59.401 period.

01:08 - 01.237 What does that tell you?

01:09 - 04.240 What does that tell your client?

01:09 - 08.310 in terms of, the specificity

01:09 - 11.347 that I would expect to see in a,

01:09 - 14.450 a claim, that's verified,

01:09 - 18.988 it seems to me that they couldn't do what you're asking them to do

01:09 - 22.258 because they never got a response to their request

01:09 - 26.162 for information regarding actual costs.

01:09 - 30.432 Am I missing something in the, you know, the

01:09 - 34.003 the way the this played out, actually, justice, I believe you are.

01:09 - 37.039 And that is they were able to file a complaint to some setting and attach a

01:09 - 37.940 verification to it,

01:09 - 41.443 and they move forward in doing so.

01:09 - 41.877 Right.

01:09 - 44.880 So the ability to verify was there

01:09 - 48.083 what your what you're talking about is what are you verifying.

01:09 - 51.654 But what we're talking about here is the ability to verify.

01:09 - 53.322 They still put forth the complaint.

01:09 - 57.960 They still made a request for a refund, and they did it with a verification

01:09 - 01.063 attached to it in the complaint, so they could have years.

01:10 - 04.233 and they did it within three years, which is. No.

01:10 - 06.602 So, so and that's what gets to the heart.

01:10 - 07.803 And I think it's important.

01:10 - 10.372 And you're zeroing in on and the point

01:10 - 12.641 and the point is to take a look at the statute

01:10 - 15.077 and what the statue provides, which is intended to provide.

01:10 - 17.479 Is it a notice statute, not only a notice statute?

01:10 - 18.547 In order to determine that,

01:10 - 22.117 we have to read the text of the statute, and we have to look at the statute

01:10 - 26.589 in conjunction with the history behind what its purpose is.

01:10 - 30.392 And the history as the Aaronson case and as Stranahan point out,

01:10 - 35.297 is that common law, someone who paid a tax under protest

01:10 - 38.300 or paid a fee under protest to a public entity

01:10 - 41.537 or a political subdivision did not have a right to a refund.

01:10 - 43.072 It didn't exist.

01:10 - 44.139 It didn't exist.

01:10 - 47.943 And so this act was passed in order to convey that.

01:10 - 50.846 Right? So now it created a right and a remedy.

01:10 - 54.250 And in doing so, it set forth a process and a procedure to follow.

01:10 - 57.253 And that process and procedure, your, your,

01:10 - 00.456 your whole issue here is that the verification that was on this

01:11 - 03.692 particular letter doesn't satisfy the Statutory Construction Act.

01:11 - 07.463 You've used that term now 3 or 4 times the statutory Construction Act.

01:11 - 10.699 The Statutory Construction Act doesn't define verified.

01:11 - 15.271 But yet in response to Judge Donahue's question, Justice John Hughes question,

01:11 - 17.273 you're actually asking us to insert

01:11 - 20.609 an additional requirement in the Statutory Construction Act

01:11 - 25.180 in accordance with 18 section 4904, regarding unsworn falsifications?

01:11 - 28.050 actually, no, I'm not, Your Honor.

01:11 - 30.019 justice. McCaffery.

01:11 - 33.255 The Statutory Construction Act actually does provide a definition for verified.

01:11 - 34.123 Right.

01:11 - 38.160 But you're asking us to say that what was sent in this particular letter,

01:11 - 41.597 in other words, when I was elected judge, they give you a little stamp, right?

01:11 - 44.600 And I was under the impression when I first got elected

01:11 - 47.036 judge that the stamp had to be on everything I signed.

01:11 - 48.304 But then I was told, you know what?

01:11 - 51.307 When you sign something in your official capacity as a judge,

01:11 - 52.975 your signature is the verification.

01:11 - 55.144 Your signature is all that's required.

01:11 - 58.147 In this particular case, you have an elected or appointed official

01:11 - 01.817 on behalf of the county who sends a letter saying, we dispute that

01:12 - 05.387 we have to pay these particular things asking for the backup information.

01:12 - 08.023 And you're saying that doesn't constitute a verification?

01:12 - 11.360 What should they have put a little stamp on the bottom?

01:12 - 14.697 Should they have signed that under subject to unsworn falsifications?

01:12 - 16.832 Why doesn't that signature of an official,

01:12 - 20.302 an elected or appointed official official in their official capacity,

01:12 - 23.005 satisfy the verification requirement?

01:12 - 26.375 Because the Statutory Construction Act defines verified

01:12 - 30.245 as it relates to a writing as being under oath or affirmation, it defines it.

01:12 - 34.450 And it's not up to this court to question why it defined it that way.

01:12 - 37.786 It's not up to this court to erase that requirement.

01:12 - 40.456 There are all kinds of notice requirements.

01:12 - 45.060 There are all kinds of requirements, that, that, that the legislature

01:12 - 49.164 puts on parties, that puts on citizens in order to do stuff.

01:12 - 52.568 And verification is a very specific one.

01:12 - 54.803 It's not very commonly used.

01:12 - 56.338 We don't see that all the time.

01:12 - 59.341 There had to be a reason that the legislature chose it.

01:12 - 02.478 It's not ambiguous because it is defined in the act.

01:13 - 04.947 It would be ambiguous, potentially.

01:13 - 05.848 Justice McCaffery.

01:13 - 08.851 Maybe it would be ambiguous if they didn't supply definition.

01:13 - 13.422 But the Statutory Construction Act actually supplies the definition.

01:13 - 16.725 And under the under the provisions of the statutory Construction Act,

01:13 - 20.195 when the Statutory Construction Act provides a definition

01:13 - 23.799 that's of a term that's used in a statute that's not defined in the statute,

01:13 - 25.834 that is the definition that is to apply.

01:13 - 27.870 Okay, counsel, let me ask you this question.

01:13 - 31.273 What did satisfy you if the letter, that

01:13 - 35.444 they sent had a statement on the bottom that said,

01:13 - 41.717 this demand for a refund is made subject to penalties, of perjury.

01:13 - 46.021 We demand a refund period underneath.

01:13 - 49.892 And it says we, certify that this refund

01:13 - 52.895 demand is made under penalty of perjury.

01:13 - 53.829 It would

01:13 - 56.398 that would have satisfied the verified component

01:13 - 58.033 certainly would satisfy the verify

01:13 - 01.770 complete whether that in of itself would satisfy the claim component.

01:14 - 04.206 We're not that's not before this court. Well,

01:14 - 08.444 but why isn't it.

01:14 - 13.482 Well it was it wasn't part of what was brought up before this court.

01:14 - 15.551 But we can we can certainly talk about that in terms

01:14 - 18.554 of what we can surely talk about in terms of what constitutes a claim.

01:14 - 19.788 Is it a claim?

01:14 - 22.591 If we take a look at the letter, what does the letter actually say

01:14 - 24.660 that the letter say we're demanding refund.

01:14 - 26.862 No it didn't. What did the letter actually say?

01:14 - 29.865 The letter said we are requesting information.

01:14 - 33.535 We don't believe that you have the right to charge us anything above what

01:14 - 35.637 your costs are. So provide us information.

01:14 - 38.640 If you don't provide us information, we're filing a lawsuit.

01:14 - 41.643 It didn't say we demand in this letter that you repay.

01:14 - 44.413 It didn't say we repaid in the entire amount.

01:14 - 47.616 It didn't contain any of the things that would satisfy the standard

01:14 - 50.652 of a claim in the court below for us to review.

01:14 - 54.089 I believe it certainly it was raised in the record.

01:14 - 56.291 Certainly it was argued at every level.

01:14 - 59.661 certainly it was argued it wasn't necessarily granted

01:15 - 02.731 in the in the questions for review before this court,

01:15 - 05.801 but I would certainly argue it doesn't even rise to the level of a claim.

01:15 - 06.702 But you don't even

01:15 - 09.705 get to the level of the claim if you can't get past the verified.

01:15 - 12.841 Well, you don't get the whether it's verified unless it's a claim.

01:15 - 14.643 Fair enough.

01:15 - 18.180 So I'm trying to I mean, that's that jumped out at me,

01:15 - 21.216 that the, the letter

01:15 - 24.253 itself does not request a refund at any point in time.

01:15 - 24.753 It does not.

01:15 - 26.522 It threatens a lawsuit

01:15 - 28.924 if you don't provide information to Justice Donoghue's point.

01:15 - 32.895 It's it's basically we it's almost an allegation

01:15 - 36.932 that we don't have the information we need to file the claim.

01:15 - 42.070 Provide us with your explanation as to why you think this is a fee and not attacks.

01:15 - 46.041 And by the way, if you don't respond, we're going to bring a lawsuit

01:15 - 48.477 which seems to be jumping the gun under the statute.

01:15 - 51.480 Now, this is all very interesting to me,

01:15 - 55.450 but if it's not here, we can't reverse for any reason.

01:15 - 57.286 We can affirm for any reason.

01:15 - 58.820 But you want a reversal.

01:15 - 01.823 And it doesn't seem to me like you have.

01:16 - 02.457 Maybe.

01:16 - 05.994 Did you ask for us to take that issue and we limited it to the verification

01:16 - 10.532 we asked to take the issue of whether or not the the actions of the

01:16 - 13.535 of the lower court,

01:16 - 16.572 effectively overruled the Stranahan decision

01:16 - 19.575 or implicitly overrule the strange, ahem, decision

01:16 - 21.743 because it altered the process and procedure.

01:16 - 25.213 So so actually, it is it actually is before this court.

01:16 - 29.885 in context of, I didn't we didn't brief it.

01:16 - 35.223 We didn't brief here in detail that it didn't constitute claim.

01:16 - 40.329 I believe I referenced in the in the brief that it doesn't it's not a claim.

01:16 - 44.299 But we didn't I did not go into details to, to that specific,

01:16 - 48.270 component of it, but it's certainly not verified.

01:16 - 49.037 And in fact,

01:16 - 52.407 the whole premise and the whole basis for the a Commonwealth Court decision

01:16 - 53.508 has to be verified.

01:16 - 57.613 Well, but if it's not verified, it doesn't meet the statute either.

01:16 - 00.949 And the basis by which the Commonwealth Court made its decision

01:17 - 04.953 was, in focusing in on the verification

01:17 - 09.024 and stating that it is undisputed that it was not verified.

01:17 - 13.228 So what the Commonwealth Court did is the Commonwealth Court teed up and said

01:17 - 16.264 this doesn't meet the statute, whether it was a claim or not.

01:17 - 18.667 The Commonwealth Court said it doesn't meet the verification.

01:17 - 21.770 Commonwealth court said it was a claim because it seemed like every bit.

01:17 - 26.074 But by the time this got here, it seemed like everybody was assuming

01:17 - 27.809 that it was a claim.

01:17 - 29.911 Even the Commonwealth courts seemed to think it was a claim,

01:17 - 31.980 because, I mean, I really doubt the Commonwealth Court

01:17 - 34.950 would have gone to the verification issue if they didn't think it was a claim.

01:17 - 38.954 And that's that's kind of where I'm struggling with is, is

01:17 - 42.024 I don't know if this is a case where

01:17 - 46.261 we should be deciding to what level a claim has to be verified.

01:17 - 48.063 If we don't even have a claim in front of us

01:17 - 52.034 to allow the decision below to stand

01:17 - 55.437 would allow a lower court decision

01:17 - 00.742 that did not analyze the statute pursuant to the Statutory Construction Act,

01:18 - 05.580 and basically wrote out a requirement by saying it's undisputed.

01:18 - 08.550 This is not this was not verified, but

01:18 - 12.387 we're going to provide relief.

01:18 - 15.123 So what does that set as

01:18 - 18.126 by way of a precedent from this court,

01:18 - 22.998 it's what it establishes is that a lower court can take a look at a requirement

01:18 - 26.101 and say, I don't have to do statutory construction analysis.

01:18 - 28.270 I don't have to determine whether this ambiguous.

01:18 - 32.441 I can simply say it wasn't met and I don't care.

01:18 - 33.809 It wasn't met.

01:18 - 37.479 And I'm going to and I'm going to find a way to get to an outcome.

01:18 - 40.749 That's exactly what statutory construction analysis says.

01:18 - 41.683 You cannot do.

01:18 - 44.653 This is bigger

01:18 - 47.656 than the participants in this case.

01:18 - 51.493 So does Coal Township have

01:18 - 53.829 do they use any forms

01:18 - 57.766 that they provide to people who want to request a refund?

01:18 - 00.035 I don't know the answer to that.

01:19 - 03.105 I mean, because, you know, the way you have this set up now,

01:19 - 07.375 they could have verified this letter and you'd say, no, that's not enough.

01:19 - 10.312 That's doesn't put us on notice of what we need to know.

01:19 - 13.615 And then they add another piece of information and you say,

01:19 - 15.817 oh, that's not enough.

01:19 - 18.954 it doesn't meet, the statutory requirement.

01:19 - 22.958 and I'm, I'm just challenged by the fact

01:19 - 27.529 that had someone responded to their request for information

01:19 - 31.466 regarding the actual costs, we probably wouldn't be here.

01:19 - 34.970 I mean, this is $100,000 overcharge.

01:19 - 38.774 I mean, which obviously they perceived in the context of everything

01:19 - 42.344 that was going on here with the purchase of this facility.

01:19 - 46.047 So, I mean, you know, it just seems as though,

01:19 - 49.818 your client is taking a position

01:19 - 52.888 and that, can change, with the wind,

01:19 - 57.526 in terms of what is in fact, necessary to meet what,

01:19 - 01.396 you know, you're arguing is a statutory requirement.

01:20 - 03.832 I it with justice.

01:20 - 06.334 With all due respect, I don't think we're taking a position that changes with wind.

01:20 - 09.337 I think what we're doing is we're following the statute as it's written.

01:20 - 13.875 The statute as it's written creates a remedy and a right.

01:20 - 18.213 And with the statute steps provide for is how that right accrues.

01:20 - 22.651 That right doesn't accrue until several things happen.

01:20 - 26.021 First, there is a payment under protest.

01:20 - 29.157 Second, there is a written

01:20 - 32.594 and verified claim that is submitted to the political subdivision.

01:20 - 36.464 Third, there is a denial of refund.

01:20 - 39.467 It's only then do you get to

01:20 - 44.339 then if those things happen and subject to the limitations set forth above,

01:20 - 47.642 it's only then do you get to the step

01:20 - 51.580 where you have a claim that you can pursue in a Court of Common Pleas.

01:20 - 53.682 See here. Here's my here's my problem with that.

01:20 - 57.018 And I'm looking at the statute, because I agree with your argument.

01:20 - 01.656 this statute and the request, by the taxpayer

01:21 - 07.362 is premised on a knowledge that the fees were

01:21 - 10.432 fees to which

01:21 - 13.702 the subdivision was not legally entitled.

01:21 - 17.038 How would they know that?

01:21 - 20.442 Unless they know what the township

01:21 - 24.112 was legally entitled to?

01:21 - 27.148 And that was their request for information?

01:21 - 30.952 But, I mean, you know, at at this juncture, I mean,

01:21 - 35.090 how did they file anything that's verified unless they can make a determination

01:21 - 39.628 that the township got money to which they were not legally entitled justice.

01:21 - 42.797 I'm going to go back to what I had said previously, and that is

01:21 - 44.499 they filed a complaint.

01:21 - 46.001 It was verified.

01:21 - 47.802 They filed a complaint that was verified.

01:21 - 50.071 It survived preliminary objections.

01:21 - 53.341 So they were able to file a claim based upon that knowledge

01:21 - 55.310 because they sought a refund.

01:21 - 57.879 So to suggest that they couldn't do the same thing,

01:21 - 59.414 you know, what they could have done?

01:21 - 02.751 They could have submitted a draft complaint with a letter

01:22 - 05.854 that said, we're demanding a refund.

01:22 - 08.723 If you don't supply us with the refund, we're going to file

01:22 - 12.360 this complaint in court, and the complaint could have been verified

01:22 - 15.230 and that would have satisfied the act.

01:22 - 18.833 You know what they also could have done when this issue was raised and it was

01:22 - 22.170 raised within a three year period of time that's set forth in the statute.

01:22 - 26.942 They could have withdrawn their action, discontinued it without prejudice.

01:22 - 30.478 They could have then taken their their complaint that they had filed.

01:22 - 33.481 They could have sent it back to the township

01:22 - 35.717 and they could have cured this.

01:22 - 36.851 But they didn't do that.

01:22 - 40.255 They rely upon the Willow case.

01:22 - 42.390 And that's what happened. The Willow case. They filed a lawsuit.

01:22 - 43.825 They hadn't filed a claim letter.

01:22 - 46.227 They went back and filed the claim letter within. Right.

01:22 - 49.230 They went back and tried to cure, and the court relied upon it and

01:22 - 53.101 looked upon that we are this happened in 2017.

01:22 - 55.036 Weren't 2024.

01:22 - 57.872 Not once did they try to cure this,

01:22 - 00.842 not once knowing that the issues were out there.

01:23 - 02.911 These issues were raised in 2018.

01:23 - 04.746 Within a year,

01:23 - 07.282 the issues that they didn't follow, the act, they were argued,

01:23 - 08.216 and preliminary objections.

01:23 - 10.652 They were argued to two summary judgment motions.

01:23 - 12.821 They had plenty of time to cure this.

01:23 - 14.556 They didn't.

01:23 - 18.360 They want all of those preliminary objection motions, did they not

01:23 - 21.629 sure they won them, but in winning that,

01:23 - 25.000 the court never said that the Refund act doesn't apply.

01:23 - 26.768 But did you ever make the determination

01:23 - 28.837 of whether they were correct and entitled to the refund?

01:23 - 32.407 I mean, you seemed to be asking this court to sanction all kinds of

01:23 - 34.642 technical defenses.

01:23 - 36.311 We've never even gotten to the substantive issues.

01:23 - 39.314 You're saying a lot of things they could have done in the last seven years.

01:23 - 42.183 And the short answer that I keep running through my own head is,

01:23 - 45.020 did your client ever perform an analysis to see whether or not they were correct,

01:23 - 48.023 and just cut him a check back for the for the overpayment?

01:23 - 51.092 My client actually has a counterclaim that was never decided.

01:23 - 54.696 My client has a counterclaim based upon additional costs that were incurred.

01:23 - 58.633 Question did you ever perform an analysis to see what the determine

01:23 - 01.469 whether or not they were correct and they were entitled to the refund?

01:24 - 03.938 The analysis part of the counterclaim is part of the counterclaim.

01:24 - 05.940 They're not entitled to the refund that they're asking for.

01:24 - 06.908 That's our position.

01:24 - 08.676 That counterclaim has never been adjudicated.

01:24 - 10.512 It wasn't even referenced by the court. And what they did.

01:24 - 14.182 And so it

01:24 - 16.885 it's not a technical defect.

01:24 - 19.921 Striking a provision of a statute is not a technical defect.

01:24 - 21.256 Failing to comply with something

01:24 - 24.259 that the legislature says you must comply with is not a technical defect.

01:24 - 26.861 Listen to your answer to these questions, that there's nothing in the refund act

01:24 - 29.864 that requires you to respond to an informal discovery request,

01:24 - 32.434 or to do a calculation or anything like that.

01:24 - 33.902 It's very responsibility

01:24 - 37.238 to properly present a claim before they can go to court.

01:24 - 41.109 That's a that's the only the statute imposes no obligation on your client.

01:24 - 42.510 That's exactly correct.

01:24 - 46.681 The statute imposes no obligations in what Stranahan and and Aronson

01:24 - 51.920 previously indicated is that this act requires

01:24 - 55.156 a strict compliance and a strict application,

01:24 - 00.061 and to soften it, to give a liberal construction to say you

01:25 - 03.832 don't have to comply with the verification is contrary to those decisions.

01:25 - 09.804 But also point out is the decisions that the county rely upon will and others.

01:25 - 14.576 None of those decisions, even though they were reviewing a statute,

01:25 - 18.213 none of those decisions employed a statutory Construction Act analysis.

01:25 - 19.080 None of them.

01:25 - 24.085 I said that this case is bigger than the parties that are before you,

01:25 - 25.220 and it is.

01:25 - 29.023 And the reason it is, is because this is a slight tear

01:25 - 32.594 in the fabric of the jurors prudence of statutory construction.

01:25 - 35.430 What's the next step that happens?

01:25 - 39.434 The next step that happens is no longer if verification is no longer required,

01:25 - 41.102 maybe written is no longer required.

01:25 - 42.370 Maybe notice isn't required

01:25 - 44.372 under the political Subdivision Tort Claims Act

01:25 - 46.841 before filing a civil claim against the subdivision.

01:25 - 51.513 This could be applied across the board to any statute if allowed to stand,

01:25 - 56.117 the lower courts must acknowledge.

01:25 - 00.221 They must know that when they are reviewing a statute

01:26 - 05.560 and they want to perhaps relax it, revise it,

01:26 - 09.030 or try to carry out its intent and purpose,

01:26 - 12.834 they've got to follow the Statutory Construction Act and those principles

01:26 - 17.772 that this court has established over and over and over and over again.

01:26 - 19.240 Thank you. Mr. Winfield.

01:26 - 20.675 I think we understand your argument.

01:26 - 22.710 Let's hear from Mr. Garrigan. Thank you.

01:26 - 29.584 Chief justice,

01:26 - 33.154 the court, may please the court.

01:26 - 34.389 My name is Frank Garrigan.

01:26 - 36.191 I'm here on behalf of the county of Northumberland.

01:26 - 39.861 as this court is aware, the county of Northumberland

01:26 - 42.864 submitted a, request for a refund.

01:26 - 44.866 Now, I understand it.

01:26 - 48.836 Justice Robson has brought up the matter of whether or not this was, in fact,

01:26 - 50.505 a request for a refund.

01:26 - 55.043 But the issue, one of the issues here is that,

01:26 - 00.548 at the time, the part of the determination of whether or not,

01:27 - 04.886 the county is entitled to a refund is

01:27 - 09.624 what was the township's fee like?

01:27 - 13.561 How much did it actually cost them to administer the permit?

01:27 - 20.068 We knew there was no way in the world it was over $200,000, but

01:27 - 24.572 we had no way of ascertaining the amount that was due to the refund.

01:27 - 29.310 And in fact, in discovery, we later found out that the township's

01:27 - 32.480 numbers that they were providing for what the actual cost of administering

01:27 - 36.451 the permit was because they had an outside contractor do the,

01:27 - 40.321 all the inspections, all the work related to the permitting.

01:27 - 46.194 They were actually getting a kickback from the, outside, inspector.

01:27 - 48.229 So we would not have known that.

01:27 - 51.332 But for the fact that we determined these things in discovery,

01:27 - 53.668 that happens all the time in refund actions.

01:27 - 56.671 And what happens is you file the claim for the full amount.

01:27 - 59.907 If you want to get the court, you file the claim for the full amount.

01:27 - 02.043 If you can't, if you can't figure out what's up.

01:28 - 04.212 I mean, consumers do this all the time.

01:28 - 06.347 Lawyers make a living out of, you know, you work for the county.

01:28 - 07.815 The county gets refund claims.

01:28 - 12.587 But but certainly we the amount you seek if you don't know the smaller amount

01:28 - 13.755 you seek the full amount

01:28 - 15.356 and that side that gets you in the door

01:28 - 17.125 of the Court of Common Pleas if it's not paid.

01:28 - 20.528 But certainly we knew that they had some expenses

01:28 - 23.398 related to this, but we did not know the amount.

01:28 - 25.500 And we said, please provide us with the amount.

01:28 - 28.870 And if you don't, we are going to seek a refund via the

01:28 - 31.406 by filing a complaint, which you were able to do,

01:28 - 33.841 you were able to file a verified claim claim.

01:28 - 36.911 And what did you seek as the refund amount in your verified complaint?

01:28 - 40.348 We sought the,

01:28 - 44.419 the entire amount that was the, percentage above.

01:28 - 49.090 And whatever it, I believe we also included proviso,

01:28 - 52.093 whatever the amount was that,

01:28 - 55.196 was not actually charged by the outside,

01:28 - 58.633 by the third party contractor, which it turned out there was.

01:28 - 01.202 You're saying an amount would not have done that

01:29 - 04.772 in a verified request pursuant to the statute?

01:29 - 08.209 Well, what I'm saying is that we would not have any idea what the dollar

01:29 - 12.046 figure was, but we did state and frankly, I would I

01:29 - 13.314 would you know,

01:29 - 16.050 this is an interesting case in that it's a municipality

01:29 - 17.352 versus another municipality.

01:29 - 20.355 And I would dare say that there's probably the only refund case

01:29 - 23.624 out there in which that has occurred.

01:29 - 26.894 we submitted a letter

01:29 - 31.132 on Northumberland County letterhead signed by the chief clerk, hand-delivered

01:29 - 35.169 by the county commissioner to the township.

01:29 - 37.872 There's no way that they didn't have notice.

01:29 - 42.076 And the whole point of this verification process is

01:29 - 47.315 to, first give the, township the opportunity

01:29 - 51.652 to make a refund without having to go through the process of,

01:29 - 55.356 filing a complaint.

01:29 - 58.226 The in this case, the

01:29 - 01.229 there are two cases, KPI

01:30 - 04.699 Malvern and FP Willow, which with both

01:30 - 07.769 and a number of other cases which state that the three year,

01:30 - 10.638 for example, the three year statute of limitations

01:30 - 14.575 or it's not a statute of limitations, it's a notice provision and,

01:30 - 18.279 I would just point out that the

01:30 - 20.982 while

01:30 - 25.653 my colleague says that, there's, Stranahan and Aronson

01:30 - 31.426 both refer to strict construction of the Tax Refund Act.

01:30 - 35.663 Both of those cases are very specific, and they're the only ones

01:30 - 40.168 that reference the, that this is to be strictly construed.

01:30 - 44.005 The those cases involved attempts to file

01:30 - 47.942 class action lawsuits outside of the Tax Refund Act.

01:30 - 53.281 And it's my, belief that both of those cases are saying

01:30 - 58.886 you cannot go outside of the the language of the Tax Refund Act.

01:30 - 03.991 And the Tax Refund Act does not say that you are entitled to pursue class action.

01:31 - 07.862 The Willow Ridge case, for example.

01:31 - 08.863 I think you didn't.

01:31 - 10.798 You threatened the class action.

01:31 - 12.200 We did. Yeah.

01:31 - 12.733 Yeah.

01:31 - 17.605 Well, well, we threatened, Your Honor, but, we then but but then we just.

01:31 - 19.040 But the class action.

01:31 - 21.943 And you threatened to file suit if they didn't give you information.

01:31 - 26.714 You didn't threaten to file suit if they didn't give you a refund. The.

01:31 - 33.521 I understand, however, you must.

01:31 - 35.189 This court.

01:31 - 35.490 The reason

01:31 - 38.960 why it's important to me is the section that gives you the right to file suit.

01:31 - 44.665 Because it says in the event of a refusal or failure on the part of the authority

01:31 - 49.804 of the political subdivision involved to make any such refund of taxes,

01:31 - 52.540 licensing fees, penalties, fines or other monies

01:31 - 55.943 to which the political subdivision is not legally entitled, or if you fail

01:31 - 58.946 to pay interest as required by section one.

01:31 - 03.584 It's it's the failure, the refusal of the authorities to make such refund

01:32 - 07.154 and as required by section one

01:32 - 09.991 and in this case, they never refuse.

01:32 - 11.626 They never did anything.

01:32 - 13.060 We sent them. We sent them.

01:32 - 16.097 You can count that as a failure if you asked for it.

01:32 - 18.966 But it seems to me that the General Assembly is saying,

01:32 - 22.069 like they say, with the notice provision under the Political Subdivision or

01:32 - 25.273 Claims Act, for you to for your cause of action to accrue,

01:32 - 31.812 you first have to have notice and demand and a refusal or failure to pay.

01:32 - 36.484 And, your honor, Judge justice apologies.

01:32 - 40.021 The, the Tax Refund Act

01:32 - 43.024 is supposed to be a way for the average citizen

01:32 - 46.928 to go about getting back money to which they are entitled.

01:32 - 50.698 And if you are to read it, now,

01:32 - 52.466 in this case, we have the county of Northumberland.

01:32 - 56.103 But if this was the average citizen who sent out a letter like this,

01:32 - 01.576 the whole point of the the notice provision is to give the township notice

01:33 - 04.579 that there is a claim here, and to then

01:33 - 08.115 the burden shifts to them to go and find

01:33 - 12.520 you didn't give them a notice of a claim, you gave them notice of, of a question.

01:33 - 16.257 You questioned whether it was excessive.

01:33 - 19.293 You cited the case law that said it could be excessive, meaning

01:33 - 22.296 you knew this was an issue of whether it was a fee versus a tax.

01:33 - 26.400 But you never said in your letter, we believe this is excessive

01:33 - 28.936 and we believe we are owed.

01:33 - 30.571 We should get the whole thing back.

01:33 - 33.674 You basically, it was basically an informal request for information.

01:33 - 39.480 The well, I would point out that this court did not, this court limited

01:33 - 42.750 what the matters were for,

01:33 - 45.720 that it was going to hear on appeal.

01:33 - 47.822 Not that was not great argument.

01:33 - 48.956 That's a great response.

01:33 - 53.160 I'll just say that I was I wasn't entirely prepared to come here and argue

01:33 - 58.232 whether or not the, the initial letter was in fact a demand letter,

01:33 - 01.235 because that was not a matter that was brought that was,

01:34 - 03.738 requested for on appeal.

01:34 - 08.609 But that said, I think that the average citizen, if they and the,

01:34 - 15.049 if they sent out this letter and stated that they were going to file a lawsuit

01:34 - 18.152 demanding the money back, that is a demand.

01:34 - 20.988 You say you're filing a lawsuit. That is a request.

01:34 - 23.190 That is a demand, and that's that.

01:34 - 25.559 Would people my argument let me get you back on track.

01:34 - 26.460 So my colleagues okay.

01:34 - 28.262 General Assembly

01:34 - 31.265 said verified what the bending okay.

01:34 - 34.635 That's a little unclear because they don't really there is nothing

01:34 - 39.473 in the, in the Tax Refund Act defining what the verification was.

01:34 - 43.411 We acknowledge that the,

01:34 - 47.214 the rules of statutory construction define, verified

01:34 - 51.619 and that there was not a verification that there was not an acknowledgment.

01:34 - 56.924 I will concede that that is the case. The,

01:34 - 01.328 but that said, the

01:35 - 06.500 if this court is to one of the rules of statutory construction is

01:35 - 10.404 that you're not, the rule should not

01:35 - 14.341 the statute should not be construed so as to result in an absurd.

01:35 - 17.912 That's the only if the statute is ambiguous

01:35 - 21.916 and the General Assembly is absolutely entitled to pass absurd statutes.

01:35 - 24.218 True.

01:35 - 27.221 And in this case the the absurd result.

01:35 - 31.492 The absurd result would be that since

01:35 - 35.262 KPI and, will overage both state

01:35 - 38.499 that there was that you can go

01:35 - 42.737 as long as there was notice that was given that you can go back

01:35 - 47.641 after the three years and the three years, first of all, and I would just point out

01:35 - 53.080 that it says, you shall submit a request within three years.

01:35 - 57.184 And yet there are two cases out there wherein, for example,

01:35 - 00.955 in Willow Ridge, they did not submit it within three years.

01:36 - 03.257 They submitted it after three years.

01:36 - 08.662 So clearly this in the past, this statute has not been strictly construed.

01:36 - 11.632 I think the last sentence,

01:36 - 16.337 the last sentence of this section refers to a written demand.

01:36 - 20.574 it doesn't refer to a verified demand.

01:36 - 24.178 Right. Verified written demand. Correct.

01:36 - 28.182 So are we talking about two different things within the context of this section?

01:36 - 31.685 That's great question.

01:36 - 35.790 I don't know why they left out the word verified in.

01:36 - 38.626 You would make the point that you did make a written demand.

01:36 - 42.863 And oh, which I understand just describes in this, discussion.

01:36 - 48.135 I sort of raised it myself early on, but I, I, I think the Commonwealth Court

01:36 - 51.906 proceeded under the notion that this was actually a claim for a refund.

01:36 - 56.277 That certainly seemed to be the impression from all the lower court

01:36 - 02.349 that this was, that this qualified as the a written claim.

01:37 - 05.853 And we did submit a written claim.

01:37 - 08.722 We can see that it was not verified.

01:37 - 12.026 Obviously, the complaint itself was verified

01:37 - 17.331 and in fact Willow Ridge after the fact, after the three years expired,

01:37 - 20.401 this all that the notice was,

01:37 - 24.471 was saying, hey, by the way, here's our our written complaint and the

01:37 - 27.675 our previous demand letters attached to it.

01:37 - 30.845 And they said, that's that's good enough.

01:37 - 34.081 So, the county has,

01:37 - 38.419 is of the belief that the absurd result that would

01:37 - 42.356 that would happen here is that as soon as this case ends,

01:37 - 48.262 if you guys filed against the county, we're going to be filing another claim.

01:37 - 50.130 They certainly were on notice.

01:37 - 51.565 There's no prejudice to them.

01:37 - 56.537 And we're right back to, starting this case from the get go again.

01:37 - 59.773 And what was the prejudice to the township?

01:37 - 04.278 They knew full well exactly what was going on from the

01:38 - 05.980 from the beginning of this thing.

01:38 - 09.183 They were basically taking $100,000 to which

01:38 - 12.152 they were absolutely statutorily not entitled.

01:38 - 16.423 Is there is there precedent for us to read prejudice into the statute

01:38 - 20.928 as a factor in determining whether your client complied with the gate

01:38 - 24.632 threshold, procedural requirements to get access to the court?

01:38 - 25.900 There is,

01:38 - 29.870 when the the question

01:38 - 33.307 in regard in Willow Ridge,

01:38 - 37.778 they stated that one of the factors to take into consideration is would the

01:38 - 43.284 was there any prejudice to the, municipality, ma'am,

01:38 - 47.121 by the,

01:38 - 48.722 notice coming in after three years?

01:38 - 53.160 So, yes, that's one of the factors. Yes.

01:38 - 54.962 Let me just clarify.

01:38 - 56.664 You don't have an answer to my question.

01:38 - 01.335 How do we reconcile the reference to a written demand

01:39 - 06.373 in the last sentence of, section one with the verified

01:39 - 09.710 and written demand in the earlier

01:39 - 12.713 portion of that same section,

01:39 - 15.649 and my answer

01:39 - 18.852 and I, I know that it's unsatisfactory,

01:39 - 23.324 but my answer is, I don't know why

01:39 - 27.861 they didn't put verified, why they didn't repeat themselves,

01:39 - 32.032 but clearly we maybe they only meant to say written,

01:39 - 37.504 if I were you, that's the answer I would yeah, I would say yes.

01:39 - 38.405 We certainly.

01:39 - 40.607 And I don't think there's you know, it.

01:39 - 45.212 I understand Justice Robinson disagrees, but my argument isn't

01:39 - 46.680 yet until I put pen to paper.

01:39 - 50.851 I got a vibe this.

01:39 - 55.556 That, that

01:39 - 58.459 the, the county

01:39 - 01.895 or the county submitted a written demand for a refund,

01:40 - 05.299 and the,

01:40 - 10.237 I'm sorry.

01:40 - 12.539 I lost my train of thought.

01:40 - 14.141 The get it within three years.

01:40 - 15.542 Oh, sir. Absolutely.

01:40 - 18.912 We we submitted the written demand within a month.

01:40 - 21.982 We I mean, this was not.

01:40 - 25.652 Again, there is no shock or surprise to the to the township.

01:40 - 28.422 This was in every newspaper in Northumberland County. This was a

01:40 - 29.523 big deal.

01:40 - 33.861 And we had a commissioner hand deliver this letter to them.

01:40 - 37.865 So I was it verified?

01:40 - 40.901 No, but we did have a commissioner

01:40 - 45.806 deliver a letter written by the chief clerk of the county

01:40 - 49.710 on county letterhead stating we would like a refund.

01:40 - 52.646 Okay. I think we get it, Mr. Garrigan. Thank you.

01:40 - 54.782 Thank you both. Very well argued.

01:40 - 58.352 I'm not sure the subject matter will inspire our high school

01:40 - 01.455 students to become attorneys, but it was very well.

01:41 - 04.491 The next case is Setka

01:41 - 07.194 versus Prospect Medical holding.

01:41 - 09.997 This case has a long history.

01:41 - 13.434 that goes all the way back to 2016.

01:41 - 18.772 But basically what this case is about is the closure of the only emergency room

01:41 - 24.011 at a hospital in Delaware County in 2016,

01:41 - 28.582 Crosier Chester, purchased,

01:41 - 32.119 the Delaware County Hospital.

01:41 - 36.590 And as part of the purchase agreement, which was with Prosper Medical Holdings,

01:41 - 41.595 a purchase agreement was made that the new owner

01:41 - 45.966 would not attempt to close any, business

01:41 - 50.304 within ten years of the date of purchase in and around the Lee.

01:41 - 53.307 in 2022,

01:41 - 57.578 Prospect Medical wanted to close the hospital

01:41 - 00.747 and open a behavioral health center

01:42 - 03.350 as part of that, dispute.

01:42 - 05.519 Filed the

01:42 - 08.889 complaint against prospect seeking an injunction.

01:42 - 09.656 An injunction?

01:42 - 13.460 Meaning, the court looking at the issue,

01:42 - 16.830 saying that if they allow this to be closed,

01:42 - 21.568 it would create irreparable harm to the citizens of Delaware County

01:42 - 24.805 because the only medical center would have been closed.

01:42 - 30.344 The case was filed in the trial court, and,

01:42 - 35.048 there was attempts to issue the injunction to not issue the injunction.

01:42 - 38.919 This Supreme Court took a look at the initial case

01:42 - 42.856 and said that there was not a developed record.

01:42 - 43.790 Totally.

01:42 - 46.793 But the trial court could take a look at the issue

01:42 - 50.764 and that there should be a highly deferential standard applied,

01:42 - 55.536 on any, on any reviews so that the trial court would be basically

01:42 - 01.208 in a really good position to determine whether or not there was irreparable harm.

01:43 - 05.312 So the trial court found that there would have been irreparable harm

01:43 - 08.682 when the only, local community

01:43 - 12.319 hospital would be closed in that community.

01:43 - 15.789 In granting the injunction, the case was appealed

01:43 - 19.326 to the Commonwealth Court, and the Commonwealth Court reversed

01:43 - 24.331 and basic said they did not think that irreparable harm was proven

01:43 - 27.534 and therefore the injunction should be reversed.

01:43 - 32.139 Case was appealed to to this court.

01:43 - 36.510 And what this court has is going to be looking at is

01:43 - 40.948 whether the Commonwealth Court made a mistake

01:43 - 44.384 when it disregarded the application

01:43 - 47.387 of a highly deferential standard of review

01:43 - 50.958 in this case, instead of the trial court,

01:43 - 53.627 when there was potentially

01:43 - 57.598 irreparable harm showed when the only local community hospital

01:43 - 01.301 would have been closed, in Delaware County.

01:44 - 04.071 So let's go to the courtroom.

01:44 - 09.142 Chief Justice Todd and Associate Justices, Jim Sargeant here.

01:44 - 12.145 And with me is Andrew Stafford, my colleague

01:44 - 16.083 from our office in Newtown Square making a repeat appearance, I see.

01:44 - 20.320 Yes, he's he's the stalwart in our firm.

01:44 - 23.223 I see he's the brief writer.

01:44 - 24.091 More than that.

01:44 - 26.793 He's, the brains of the outfit. All right.

01:44 - 30.664 thank you very much, Your Honor.

01:44 - 33.767 I'm, I'm sort of,

01:44 - 37.471 not only, impressed by the weight of this occasion, but

01:44 - 40.540 also by the weight of the material over my head.

01:44 - 42.109 Makes me intimidated.

01:44 - 43.543 I hope it doesn't fall down.

01:44 - 45.746 I'm glad you're paying attention.

01:44 - 48.015 Your honor,

01:44 - 51.985 we are here from an appeal of a preliminary injunction,

01:44 - 55.856 which is a obviously and unique procedural,

01:44 - 00.294 form of relief.

01:45 - 03.997 we would argue that we satisfied the six elements

01:45 - 07.000 that are required for preliminary injunctive relief.

01:45 - 10.137 the first being immediate, irreparable harm.

01:45 - 11.305 I can't imagine anything

01:45 - 16.009 more immediate and irreparable than closing down a hospital

01:45 - 19.780 that's been in a local community for generations.

01:45 - 23.150 People who have gone there, to deliver babies

01:45 - 28.021 to, attend to acute illnesses for emergency room

01:45 - 31.892 care in a disadvantaged community, lower

01:45 - 35.195 economic, community in Delaware County.

01:45 - 39.032 I'm interested to note your, your honor, that,

01:45 - 41.868 Violet Oakley

01:45 - 46.073 was painting her murals here when Delaware County Hospital

01:45 - 49.509 first opened its doors on January 1st.

01:45 - 52.746 1927. Noted.

01:45 - 55.482 I'm sorry. July 1st, 1927.

01:45 - 00.320 So immediate, irreparable harm here is is, defined,

01:46 - 04.324 of course, by what happened to this community hospital.

01:46 - 05.959 It was closed.

01:46 - 09.730 it arose

01:46 - 13.233 the claim arose from the breach of a clear contractual,

01:46 - 16.937 agreement to keep the hospital open.

01:46 - 20.307 There is no other remedy that can't be addressed

01:46 - 23.610 in damages is absolutely impossible.

01:46 - 27.481 The parties stipulated that if,

01:46 - 32.652 the contract was breached, that would result in irreparable harm.

01:46 - 33.720 I want to return to that.

01:46 - 38.358 That's a very important point, which the Commonwealth Court essentially discounted.

01:46 - 43.196 the second element, there's greater harm from refusing

01:46 - 46.800 to grant relief in this instance than from granting the relief.

01:46 - 51.071 Clearly, we just sought to have the hospital continue.

01:46 - 54.074 That's what prospect had agreed to do.

01:46 - 57.144 So it's it's a much greater harm to the community

01:46 - 01.481 to close down the hospital than just to, say, stay the course prospect.

01:47 - 04.050 you can't close it down now.

01:47 - 06.286 it was necessary.

01:47 - 08.922 The relief to preserve the status quo.

01:47 - 11.925 Obviously, the status quo was the open hospital.

01:47 - 14.361 that was changed by prospect,

01:47 - 19.833 likelihood of prevailing on the merits.

01:47 - 26.406 The fourth element, we think very strongly that the contract is clear.

01:47 - 30.911 Prospect agreed to keep the hospital open, and there is no excuse

01:47 - 32.179 for not keeping it open.

01:47 - 36.349 Now, prospect would like this court to interpret,

01:47 - 40.353 the section 11.15,

01:47 - 43.790 which allows prospect

01:47 - 46.793 to discuss continue specific services

01:47 - 50.831 which are no longer commercially reasonable to maintain

01:47 - 57.604 as engulfing 11.16 which says they'll keep the hospital open.

01:47 - 00.841 And so I can I just interrupt briefly on that.

01:48 - 02.542 Absolutely.

01:48 - 06.746 Isn't there a, a revocation by the Department of Health

01:48 - 09.382 regarding the certification to operate as a community hospital,

01:48 - 10.817 in effect right now?

01:48 - 13.386 Well, that's not exactly correct.

01:48 - 14.488 Justice McCaffrey.

01:48 - 15.555 What happened here?

01:48 - 18.158 And it's I wanted to kind of answer that question in conjunction

01:48 - 20.927 with your position that there's a greater likelihood of success on the merits,

01:48 - 23.930 because if the hospital's closed by order of the Department of Health,

01:48 - 27.267 I wanted to kind of I want you to answer that question.

01:48 - 29.870 It's almost like a moot issue to me. But, Your Honor,

01:48 - 32.506 justice McCaffery.

01:48 - 35.208 That's a self-fulfilling prophecy.

01:48 - 38.311 So what happened here was that in the spring

01:48 - 42.749 of 2022, prospect started terminating services.

01:48 - 47.153 It terminated the acute care, services it previously had.

01:48 - 50.557 It came in, had terminated labor and delivery.

01:48 - 56.296 Then in October, September September 21st, 2022,

01:48 - 01.501 prospect announced it was closing in the local press.

01:49 - 05.038 It was closing the hospital and it told the 200

01:49 - 08.041 plus employees you no longer have a job.

01:49 - 10.710 It was almost like a preemptive breach.

01:49 - 12.412 It certainly was.

01:49 - 14.581 If you don't have personnel, you can't run.

01:49 - 15.682 An E.R.

01:49 - 19.252 and prospect self reported to the Department of Health, saying,

01:49 - 20.520 we don't have any personnel.

01:49 - 22.622 Well, the reason they didn't have any personnel

01:49 - 25.625 was they chose as part of their plan

01:49 - 28.895 to turn this into a behavioral health center,

01:49 - 32.332 to, to shed all the employees.

01:49 - 36.403 So the Department of Health and this is what really

01:49 - 41.041 the dissent held, this is what the the trial court held.

01:49 - 44.911 All you have to do is rehire those employees and the Department of Health

01:49 - 47.714 certification goes away. Thank you for that.

01:49 - 52.452 So the the counsel, if I might, can I ask you to,

01:49 - 55.922 focus on the evidence of irreparable

01:49 - 00.961 harm that was, provided, during the injunction hearing,

01:50 - 06.633 you know, as as I understand the, issue,

01:50 - 11.504 this is a question of whether unduly standard announced in summer town center.

01:50 - 14.541 the evidence of irreparable harm in

01:50 - 18.445 this case was sufficient to meet the, specific data,

01:50 - 23.783 supporting irreparable harm required meant that was set forth in Summer town.

01:50 - 27.854 So what kind of evidence was there of irreparable harm?

01:50 - 31.458 Thank you. Justice Donohue.

01:50 - 35.629 There was testimony from the director

01:50 - 38.732 of the Department of Health in Delaware County,

01:50 - 41.701 which is strongly

01:50 - 44.804 reinforced, the concept that when you closed down

01:50 - 50.310 a hospital in a local community, the local community suffers.

01:50 - 54.914 now, I also point out again that the parties had stipulated

01:50 - 56.549 to irreparable harm.

01:50 - 59.653 Let me let me just focus on the actual evidence.

01:50 - 01.588 first,

01:51 - 05.925 because they stipulated to a lie regarding pulmonary injunctive relief.

01:51 - 09.362 But the, evidence, the expert

01:51 - 12.365 testimony that you just described

01:51 - 15.001 strikes me as being

01:51 - 17.937 very similar to the expert testimony

01:51 - 20.940 that was offered in Summer Town Center, which is.

01:51 - 26.913 Well, other tenants will leave because that large space is now vacant.

01:51 - 32.619 it will be more difficult to release property

01:51 - 36.256 within the Summertown Mall because of the

01:51 - 39.392 and this court said not good enough.

01:51 - 41.561 We're looking for data.

01:51 - 43.396 what what what what?

01:51 - 47.167 And so I'll ask you again, because I don't think

01:51 - 50.170 there is any such evidence in this case.

01:51 - 52.939 for example, the number of,

01:51 - 56.443 emergency room visits that will be,

01:51 - 59.612 necessary to move to

01:51 - 04.918 another hospital or, the inability of adjacent,

01:52 - 08.722 emergency rooms to handle the population that will be,

01:52 - 11.725 you know, sent as a result of this closure.

01:52 - 16.396 Is there anything like that in this record to support the irreparable harm claim?

01:52 - 22.302 Justice Donohue, I will preface my answer by pointing out that the,

01:52 - 26.740 the prospect announced it was closing the hospital

01:52 - 29.743 September 21st, 2022.

01:52 - 33.346 The complaint was filed on September 28th.

01:52 - 36.349 A week later, the preliminary injunction

01:52 - 40.987 hearing was on October 7th, 2022,

01:52 - 45.191 essentially three weeks after the closure announcement.

01:52 - 49.929 And the practical reality is, the impact on the community

01:52 - 55.468 could not possibly be felt or measured within that time frame.

01:52 - 58.671 Which brings me to a very important point to,

01:52 - 02.942 in fact, summit, Township, involved a case

01:53 - 06.813 where there was clearly, an economic remedy.

01:53 - 10.016 There are damages that could be calculated.

01:53 - 13.753 There was actually liquidated damages caused in the contract,

01:53 - 19.192 and the testimony that a 1% shareholder

01:53 - 23.563 was going to call a 1%, sorry, tenant

01:53 - 29.202 was going to cause a tsunami of vacations in this 550,000

01:53 - 33.706 square foot shopping center, just didn't ring true.

01:53 - 38.411 And I think the court let me ask you, the three week period, and,

01:53 - 42.715 you know, I understand the global, view that

01:53 - 46.452 any type of closure of a hospital like this is going to have an impact.

01:53 - 51.224 But in the three week period between the closing of the emergency room

01:53 - 56.029 and the preliminary injunction hearing, were there any patients who presented

01:53 - 59.966 at the emergency room who had to be sent somewhere else?

01:54 - 02.869 There were anecdotal instance of that.

01:54 - 04.470 I'm not talking about anecdotal.

01:54 - 06.873 I'm talking about was there evidence in the record

01:54 - 10.310 that in this period of time there were ten,

01:54 - 15.181 patients who had to be transferred or seven or 6 or 20?

01:54 - 18.451 I mean, was there any kind of, evidence like that?

01:54 - 21.788 There was not, Your Honor, as far as I know.

01:54 - 25.291 But let me remind your honor of what this court said

01:54 - 28.862 in 1904, in Hicks versus

01:54 - 33.333 American Natural Gas Company, a very endearing quotation.

01:54 - 37.637 It is somewhat embarrassing to an appellate court to discuss the reasons

01:54 - 41.941 for or against a preliminary decree, because generally, in such an issue

01:54 - 46.846 we are not in full possession of the case either as to law or testimony.

01:54 - 51.584 Hence, our almost invariable rule is to simply affirm the decree, or,

01:54 - 52.919 if we reverse, to give it

01:54 - 57.490 only a brief outline of reasons, and then it then in that case,

01:54 - 03.596 the court said only if it is plain no ground exist to support the decree,

01:55 - 09.469 or that the rule of law relied upon was palpably wrong or misapplied.

01:55 - 11.104 Will the court reverse?

01:55 - 16.276 That has been the tradition of this court since 1904, and that that's why

01:55 - 20.680 I'm continuing to focus on the standard that was said in Summertown center.

01:55 - 23.082 This is a mandatory injunction.

01:55 - 26.786 I mean, this required rehiring staff,

01:55 - 30.323 this required reopening of facility.

01:55 - 32.926 I mean, this is in a prohibitive injunction

01:55 - 37.430 where the I believe the standard is, less, onerous.

01:55 - 39.699 and, you know,

01:55 - 44.437 whether or not, it appears obvious to anyone in retrospect

01:55 - 48.841 that this was a spur East claim by the owner of Summertown Center.

01:55 - 53.112 The courts decision is really based upon sort of a data

01:55 - 56.149 driven analysis of the evidence

01:55 - 59.152 to support an injunction that's mandatory.

01:55 - 02.522 and and as I see it, I mean,

01:56 - 06.659 that appears to be the, to me, the,

01:56 - 12.031 floor, in in the case that you're presenting,

01:56 - 15.969 I don't know if it's one that can be overcome, but it just seems to me

01:56 - 20.573 that the opinion of an expert that says, essentially,

01:56 - 26.746 most times, maybe all times, this has an impact on the community,

01:56 - 30.516 which is the essence of the expert opinion in this case.

01:56 - 34.754 I just don't know if that's enough to support a mandatory injunction.

01:56 - 36.255 Well, Your

01:56 - 42.862 Honor, I would, raise an issue as to whether it's mandatory or prohibitory

01:56 - 49.102 because, in fact, the injunction simply held prospect to its bargain.

01:56 - 53.639 It enjoined it from closing down the hospital had to hire back.

01:56 - 58.711 Well, well, well, Your Honor, that that is a self-fulfilling prophecy.

01:56 - 01.681 They chose to to fire all the employees.

01:57 - 06.986 So if they have to hire all the employees back to live up to their promise

01:57 - 11.591 to keep the hospital open, then they have to hire the employees back.

01:57 - 14.961 I don't think Summertown center also.

01:57 - 18.231 Well, Summertown, Chandler, they wanted their tenant to move back in

01:57 - 20.333 and operate the shoe store.

01:57 - 23.469 And there was evidence, Your Honor, they moved out.

01:57 - 25.671 There was evidence of how much it would cost,

01:57 - 29.208 and it was an economic analysis and Summit Town's center.

01:57 - 33.346 We could not possibly perform an economic analysis of the harm

01:57 - 37.650 to the residents of this community when that hospital was closed down.

01:57 - 40.853 That's what differentiates this from some of the town center.

01:57 - 45.491 I will point out that in both Summit Town Center and in this case,

01:57 - 49.162 the intermediate appellate court made the mistake

01:57 - 53.533 of substituting its judgment for that of the trial judge.

01:57 - 59.072 And this court called out the Superior Court and Summit Town Center for doing so.

01:57 - 04.410 It's exactly what the Commonwealth Court did here recited the same testimony

01:58 - 08.614 and decided for itself, as Your Honor is suggesting.

01:58 - 10.450 You might do that.

01:58 - 13.719 This isn't sufficient, but that's not the standard

01:58 - 17.890 that this court has adhered to for well over a century.

01:58 - 19.725 The standard has been injured.

01:58 - 23.129 It is the standard, if what we are doing is applying

01:58 - 26.232 a legal test

01:58 - 29.569 that did what the lower court do here, meet

01:58 - 33.473 the legal standard established in Summertown Center.

01:58 - 38.945 Now, your argument that this is different because, certainly in no case

01:58 - 43.483 could, monetary, damage award correct this harm?

01:58 - 45.184 That might be the difference.

01:58 - 49.655 I'm just testing the evidence itself based upon the legal

01:58 - 55.128 standard set in Summertown Center for, an injunction such as this.

01:58 - 57.096 Well, perhaps justice here.

01:58 - 00.433 We should discuss what that legal standard is,

01:59 - 06.038 because my understanding of the legal standard established and reinforced

01:59 - 11.911 in Summit Town Center is that if there are apparently reasonable grounds.

01:59 - 15.047 This is actually quoting Hicks from 1904.

01:59 - 19.018 then the trial court

01:59 - 22.622 will be affirmed, and only if no grounds exist

01:59 - 27.260 or the legal basis was palpably erroneous or misapplied.

01:59 - 28.728 Will the court reverse.

01:59 - 30.263 Will the appellate court reverse?

01:59 - 33.766 That's the standard I understand now. Mr.

01:59 - 37.470 Bayer, who was accused us of slogans

01:59 - 40.740 and modifiers, likes the term concrete evidence.

01:59 - 43.943 That is not an appropriate standard.

01:59 - 50.082 There cannot be concrete evidence in an emergency preliminary injunction setting.

01:59 - 53.186 Perhaps if at the end of a trial,

01:59 - 58.090 on a final injunction, you could, call out concrete evidence.

01:59 - 00.393 I don't even know what concrete evidence is.

02:00 - 01.494 What is that?

02:00 - 05.364 I think a problem, though, is summit does use that language.

02:00 - 09.702 I think, though, you raise an interesting point,

02:00 - 13.239 which is how far does that language really go?

02:00 - 17.243 Did it really alter anything in our jurisprudence?

02:00 - 20.780 Was it, was it used out of context?

02:00 - 24.116 You got to kind of go look at the cases that Summertown cited

02:00 - 27.954 for that proposition, to see whether they they have applicability here.

02:00 - 30.489 I think you're better response, which I think just astonished

02:00 - 33.659 you tried to try to feed to you is

02:00 - 38.698 there is no this this loss, this harm, which I can't imagine people

02:00 - 42.902 don't understand that closing a community hospital results in harm to a community.

02:00 - 45.404 is irreparable,

02:00 - 48.541 is is irreparable sort of per se, because there's no economic.

02:00 - 52.245 There's no way to rectify the harm with monetary damages.

02:00 - 55.514 There's no amount of money that can be paid to to

02:00 - 59.986 once that hospital is closed, to compensate the community for the closure

02:00 - 03.789 of those local health care facilities and isn't that the answer?

02:01 - 05.791 That it isn't summit? It's this is not an exit.

02:01 - 08.794 If it was purely economic harm,

02:01 - 11.030 it wouldn't be irreparable anyway.

02:01 - 12.732 That's why

02:01 - 16.235 that's why the whole Summit Township thing doesn't really work in a case like this.

02:01 - 18.437 Thank you, Justice Broughton.

02:01 - 20.072 I couldn't agree more.

02:01 - 23.075 I mean, this is not,

02:01 - 25.411 Excuse me.

02:01 - 27.580 oh, I agree it is.

02:01 - 29.749 Your problem is. And you haven't addressed it.

02:01 - 30.950 You haven't addressed it directly.

02:01 - 33.953 Is the summit town language. It's.

02:01 - 39.458 I can't I can't blame the Commonwealth Court and judge, Mr.

02:01 - 45.131 Byer and his clients for, for for hitching their wagon to that language.

02:01 - 46.632 And it is it is harsh.

02:01 - 49.201 And I mean, it wasn't just hypothetical.

02:01 - 53.072 I mean, for example, they said there is no evidence of vacancy

02:01 - 59.178 rates before and after closing to support the retention of these stores.

02:01 - 05.051 I mean, they backed up the notion of, concrete evidence

02:02 - 08.921 with the type of evidence they consider to be concrete.

02:02 - 14.093 Yes, you're up, but

02:02 - 17.330 the fact is that in Summit Town Center,

02:02 - 22.802 there was a an hypothesis which was facially

02:02 - 28.607 implausible, that the vacation of a 1% tenant

02:02 - 33.746 was going to cause a massive vacation on the part of all tenants.

02:02 - 35.948 And there was an economic remedy.

02:02 - 38.951 It was clear that the issue was damages.

02:02 - 42.421 And so, in juxtaposition to this proposition

02:02 - 46.892 that a 1% tenant leaving is going to cause everybody else, even the

02:02 - 50.196 the big stores to leave, the court said, well,

02:02 - 53.332 you've got to come up with something more than that.

02:02 - 56.635 And that's why the term concrete was used.

02:02 - 00.973 But as Justice Robson has pointed out in this context,

02:03 - 05.010 where you have a judge and and quite frankly, trial judges,

02:03 - 11.384 for this court are the eyes and ears, the boots on the ground in these context?

02:03 - 14.153 They are people who have grown up in these communities.

02:03 - 14.487 Here.

02:03 - 19.091 You had a senior judge who whose father was a doctor

02:03 - 22.228 in Delaware County at Rydell Memorial Hospital.

02:03 - 24.964 He's the sort of person you have to rely on.

02:03 - 26.198 You can't be there.

02:03 - 28.067 You can't make those decisions.

02:03 - 32.972 And what he did was to take the obvious, which no one could deny,

02:03 - 37.743 that in this community, a hospital that's been open for a hundred years

02:03 - 43.916 is going to develop a whole, dependency in, you know, among the population there.

02:03 - 48.020 And combined with the testimony of this,

02:03 - 51.957 22 year head director

02:03 - 55.361 of public health in Delaware County,

02:03 - 59.432 he comes to the conclusion that a preliminary, an emergency

02:03 - 03.736 preliminary injunction is appropriate to stop the hemorrhaging

02:04 - 07.373 of health care from this particular location.

02:04 - 11.143 So we know from the record how many inpatients there were

02:04 - 14.346 in the hospital prior to the announcement of the closure.

02:04 - 17.917 Well, when the complaint was filed, there were nine in patients.

02:04 - 22.621 Do we know what that number was prior to the announcement of the closure?

02:04 - 27.393 Well, the announcement of the closure was September 21st, 2022.

02:04 - 30.596 The ICU had been

02:04 - 35.267 had been terminated months and months before that, so had labor and delivery.

02:04 - 41.040 So all of that information about the impact on, you know, shedding

02:04 - 44.777 patients, all related back to steps that,

02:04 - 48.280 prospect had taken to,

02:04 - 52.017 you know, slowly wind down the hospitals.

02:04 - 54.987 operations.

02:04 - 58.791 So those I don't know what those statistics would be.

02:04 - 01.794 I don't think they'd be particularly useful in this context.

02:05 - 03.395 All right.

02:05 - 05.531 I do want to sort.

02:05 - 07.967 Well, I would sum up by saying

02:05 - 11.170 we demonstrated the six elements for,

02:05 - 14.640 emergency preliminary injunctive relief.

02:05 - 20.746 This trial judge, rendered a decision based on the facts

02:05 - 24.383 and the appropriate inferences from the circumstances.

02:05 - 27.887 And the Commonwealth Court substituted its judgment.

02:05 - 31.156 Did not, defer

02:05 - 34.960 did not apply the high, highly deferential standard of review.

02:05 - 37.930 All right. Thank you. Thank you. Your own.

02:05 - 40.299 Yeah, absolutely.

02:05 - 44.503 I'm sorry, but what I think is really, important about this case

02:05 - 48.641 is that this contract was made by the parties,

02:05 - 53.045 and it said that, they both stipulated

02:05 - 55.781 that if the hospital is closed, it would be irreparable harm.

02:05 - 57.416 Why isn't that enough?

02:05 - 02.488 Why do we why are we so concerned with the summit case?

02:06 - 06.358 If we have two parties who agree that there's irreparable harm?

02:06 - 09.929 Just as Monday, again, I couldn't agree more.

02:06 - 12.331 I was going to raise that issue earlier.

02:06 - 15.200 The fact is that in all of the cases

02:06 - 18.771 that have been cited in which the Commonwealth Court or, or,

02:06 - 23.409 my worthy colleagues have said we don't enforce those provisions,

02:06 - 29.014 they all involved economic damages almost exclusively.

02:06 - 32.318 So in this case, it's not just boilerplate.

02:06 - 37.089 Who better than prospect and the selling hospital

02:06 - 41.293 would know the importance of this hospital to the community.

02:06 - 45.631 I think it's almost an admission against interest by prospect.

02:06 - 50.769 So I would enforce that in this context where there are no economic damages.

02:06 - 56.141 Can I take that one step further as I understand the contract, it also said,

02:06 - 00.713 that the parties shall be entitled to a preliminary injunction.

02:07 - 02.348 So why why

02:07 - 04.617 was was there an attempt

02:07 - 07.620 to enforce that provision in that enforceable.

02:07 - 09.188 Absolutely.

02:07 - 13.826 if that's the only form of relief, that's again, an admission

02:07 - 17.529 you can't remedy this breach and damages there.

02:07 - 21.433 So then it's a a breach

02:07 - 24.570 without a remedy that can't be possible.

02:07 - 28.741 And the under the law you couldn't you couldn't use that clause

02:07 - 33.779 to come to the court and say to the court,

02:07 - 38.250 we don't even have to present to you all the elements of a pie.

02:07 - 41.654 We have a contract that says we're entitled to it.

02:07 - 44.990 Here's a recipe to enter a preliminary injunction.

02:07 - 47.026 You're not suggesting that?

02:07 - 49.194 Absolutely not. At most.

02:07 - 52.564 What you're suggesting is they were contractually stopped

02:07 - 54.900 from contesting your preliminary injunction.

02:07 - 57.469 Well, that's a good argument.

02:07 - 00.139 I hadn't thought of it in quite those terms, Your Honor.

02:08 - 03.742 But the practical reality is this is contextual.

02:08 - 08.280 If if it's a boilerplate provision in a contract

02:08 - 12.184 where damages are the appropriate remedy, then the court can disregard it.

02:08 - 15.387 If it is a a provision in a contract

02:08 - 19.692 such as this, it's it's maybe an admission,

02:08 - 24.196 maybe, an estoppel, irreparable harm provision in a covenant not to compete.

02:08 - 26.331 Correct.

02:08 - 29.268 Well, you would suggest we adopt when we're faced

02:08 - 32.738 with, an agreement like this in the contract.

02:08 - 35.941 I think it's a case by case analysis.

02:08 - 39.211 The court first has to satisfy itself

02:08 - 42.514 that there is no monetary remedy.

02:08 - 44.249 There's no remedy at law.

02:08 - 48.821 If there's a remedy at law, then one has to scrutinize that provision

02:08 - 50.789 to see if that's really appropriate.

02:08 - 54.860 But in context such as this, where the two sophisticated parties

02:08 - 57.629 acknowledge that a breach is going to cause

02:08 - 00.999 irreparable damages, and the only possible remedy

02:09 - 04.970 is injunctive relief, then I think it should be enforced.

02:09 - 06.271 I think it's compelling.

02:09 - 09.441 So I think there's a preliminary injunction request.

02:09 - 11.844 The argument is there's no adequate remedy at law.

02:09 - 13.712 Correct?

02:09 - 15.280 It may be

02:09 - 19.918 it may be argued, yes, Your Honor, but that doesn't preclude the court

02:09 - 25.591 in this, the argument that this sort of provision

02:09 - 30.062 could preclude a court from exercising

02:09 - 33.699 its equitable powers is pure sophistry.

02:09 - 34.767 Of course, the court is

02:09 - 38.403 going to scrutinize the context and make a decision for itself,

02:09 - 41.306 whether it's appropriate to apply the clause.

02:09 - 42.841 It's appropriate here.

02:09 - 46.712 It isn't appropriate in the context of the case where you can get damages.

02:09 - 48.180 It's as simple as that.

02:09 - 51.650 Have we heard from everyone?

02:09 - 54.353 Okay. Thank you. Thank you so much.

02:09 - 58.257 You don't want to use summarize again I think we I think we've got it this time.

02:09 - 59.358 Thank you Mr..

02:09 - 00.259 Let's hear from Mr..

02:10 - 03.262 Buyer.

02:10 - 09.601 Thank you very much, Madam Chief justice.

02:10 - 11.103 And that please the court the

02:10 - 15.974 I am Robert fire and I'm joined by my co-counsel Ryan Moynihan.

02:10 - 22.114 And we represent Prospect Medical holdings and Prospect Crosier, LLC.

02:10 - 24.750 Mr. buyer, could you bring the mic down just a little?

02:10 - 27.753 Thank you. Yes.

02:10 - 32.191 We have summarized in our brief this court's jurisprudence

02:10 - 36.094 on the irreparable harm issue and on the standards of review.

02:10 - 41.500 And for 50 years, this court has, a consistent line of decisions

02:10 - 44.503 in which the court has required that

02:10 - 49.408 the preliminary injunction, elements and in particular

02:10 - 53.545 the element dealing with irreparable harm be supported by evidence

02:10 - 58.550 that is not speculative, that is not hypothetical, that is related

02:10 - 03.121 to the facts of the situation that is being placed before the court.

02:11 - 06.592 The Commonwealth Court here correctly

02:11 - 11.363 analyzed the expert testimony that the plaintiff introduced

02:11 - 15.467 and found that it was lacking in the required specificity,

02:11 - 19.204 that it was hypothetical, that it was conjectural,

02:11 - 22.641 and that it was not based on actual data.

02:11 - 26.511 yes, this was a preliminary injunction hearing,

02:11 - 33.018 but there was always the possibility and the availability of subpoenas

02:11 - 37.022 that the plaintiff could have served to obtain evidence

02:11 - 42.628 with respect to the admissions, with respect to the ability

02:11 - 46.932 of other hospitals in the area to absorb the patients.

02:11 - 50.636 and this is a context where we know that

02:11 - 53.005 Mercy Fitzgerald Hospital,

02:11 - 57.342 a full service hospital, was located only two miles away

02:11 - 00.879 from, Delaware County Memorial Hospital,

02:12 - 05.550 which at the time of these events was underutilized

02:12 - 08.854 to the point where there were only nine inpatients.

02:12 - 14.126 And, the hospital was losing staff. Mr.

02:12 - 15.494 Brock, thank

02:12 - 17.362 listening to

02:12 - 21.300 Justice Robinson's question and Justice Monday's question,

02:12 - 24.803 why are you not stopped from challenging

02:12 - 28.173 the irreparable harm part

02:12 - 31.143 when you stipulated the written contract?

02:12 - 33.645 Well, two points, justice, talk to you.

02:12 - 38.050 The answer to that first, estoppel was not raised by the plaintiff in this case.

02:12 - 41.186 so that's not an issue that was ever asserted.

02:12 - 45.324 The contract provision was asserted, but not in the context of estoppel.

02:12 - 48.694 And we argued in the Commonwealth Court accepted

02:12 - 53.198 that the majority position in the United States is that contractual

02:12 - 56.568 clauses of this nature are not enforceable,

02:12 - 01.440 that they're against public policy because there is a public policy component

02:13 - 04.443 that the court always has to apply in

02:13 - 07.746 determining whether to issue a preliminary injunction.

02:13 - 11.416 Does that mean you entered this contract with not clean hands?

02:13 - 15.587 If you know, if it's in violation of public policy?

02:13 - 19.191 I can't answer as to why or how

02:13 - 22.194 the circumstances under which this contract was entered.

02:13 - 26.164 that's not of record in this case, and I was not involved in that.

02:13 - 31.203 But the issue of that contract is before the issue is before you and the

02:13 - 35.640 there's only one state that applies those clauses as written, and that's Delaware.

02:13 - 39.478 the issue has not come up in Pennsylvania before this case

02:13 - 44.416 and every other court that has considered that has rejected it, though, I mean,

02:13 - 48.987 the this starts to unravel

02:13 - 52.391 if this provision

02:13 - 55.527 was a material part of the bargain.

02:13 - 00.298 Because if you're saying now, if you're saying now that it was

02:14 - 04.102 that it's unenforceable, then the whole bargain is suspect.

02:14 - 06.071 There was no meeting of the minds.

02:14 - 09.841 If this was a material term to these people, to this foundation, that

02:14 - 13.345 that everybody we all thought we agreed this was irreparable harm.

02:14 - 15.714 We had no idea you were going to come in and argue it wasn't.

02:14 - 16.948 Now, maybe a court chooses

02:14 - 20.786 not to be bound by it, which I think is a different question.

02:14 - 24.122 But I sort of disagree with you

02:14 - 27.092 that they had to use the word magic, the magic words estoppel.

02:14 - 30.462 I think what they're saying is we had an agreement.

02:14 - 32.064 They agreed with us

02:14 - 35.067 that this is irreparable harm, and now they're arguing it's not.

02:14 - 37.469 Why is that not enforceable?

02:14 - 40.372 Maybe it's not enforceable to us, but maybe your client

02:14 - 42.174 just has to be silent on this.

02:14 - 45.944 Well, that would be a position that only Delaware has accepted.

02:14 - 49.047 And every other court that has considered it has rejected it.

02:14 - 50.148 I'm not sure.

02:14 - 51.183 I'm not sure I agree.

02:14 - 51.750 I think every

02:14 - 55.620 the court that has looked at it has said the courts are not bound by such a clause,

02:14 - 59.091 but I'm not sure they've said they dealt with this specific issue,

02:14 - 00.292 which is whether,

02:15 - 03.762 you know, in other words, we can look at this from a or the trial

02:15 - 06.765 court can look at it from a planar injunction perspective and say,

02:15 - 11.336 we don't see irreparable harm here, even though the parties have stipulated to it.

02:15 - 13.038 But I don't think those courts have said,

02:15 - 15.974 oh, and by the way, the parties that have stipulated to it,

02:15 - 19.811 one who stipulated can change their mind for the purposes of convincing us

02:15 - 21.379 that there is no irreparable harm.

02:15 - 24.416 I don't know that there was that level of specificity in the cases

02:15 - 28.320 so much as a determination that there had to be proof

02:15 - 32.324 of irreparable harm in those cases, and that proof could not be supplied

02:15 - 38.163 by the contract alone to argue, that well, those cases involve,

02:15 - 42.100 you know, some of those cases involved economic issues that aren't involved

02:15 - 43.201 or easily provable.

02:15 - 46.771 Here is beside the point, because where you do have economic issues,

02:15 - 50.842 of course, you don't have a preliminary injunction that those are not.

02:15 - 54.813 If it's compensable, then the harm is by definition not irreparable.

02:15 - 58.817 So I think those cases do support what the Commonwealth Court

02:15 - 00.085 did in this situation.

02:16 - 03.088 Again, we're talking not on the merits ultimately,

02:16 - 06.391 in terms of whether there should have been a permanent injunction.

02:16 - 09.628 And that's an issue that I'll talk about momentarily in terms

02:16 - 12.898 of the unique procedural posture that we are in now.

02:16 - 18.904 But on this issue of, was there sufficient proof of, irreparable harm?

02:16 - 20.705 I think the common wolf court

02:16 - 24.976 clearly got it right, particularly in view of this court's case law.

02:16 - 27.946 What, what and I apologize for interrupting you.

02:16 - 32.517 But again, if you have a if you're in a major urban or metropolitan area

02:16 - 37.055 and there's one grocery store in this community

02:16 - 41.626 that provides food to everybody, and that grocery store closes,

02:16 - 45.564 does that community not suffer some form of harm

02:16 - 48.633 because it doesn't have as easy of access to groceries?

02:16 - 52.470 I think it's a question of degree.

02:16 - 56.808 And, and the question is whether it's the type of extreme, irreparable harm

02:16 - 00.812 that would justify preliminary injunctive relief.

02:17 - 05.951 Getting the word extreme from, normally the case is referred

02:17 - 09.955 to an urgent necessity, in terms of a preliminary injunction.

02:17 - 12.390 That doesn't mean that doesn't mean the farm has to be that.

02:17 - 14.226 That's correct, Your Honor.

02:17 - 15.727 All that's required is harm.

02:17 - 18.363 Harm legally. Of what level?

02:17 - 19.898 And it has to be irreparable.

02:17 - 20.932 Yes, but it doesn't.

02:17 - 22.634 It can't be a de minimis harm.

02:17 - 24.903 And here we have

02:17 - 30.041 hospitals in the in the vicinity, though I think there were there was evidence

02:17 - 33.645 of four other hospitals, one of which was only two miles away.

02:17 - 38.216 Now, obviously, you would like to have, in a perfect world,

02:17 - 42.587 a hospital every mile, just as you'd like to have a grocery store every mile.

02:17 - 44.889 But that world doesn't exist.

02:17 - 47.459 And there is absolutely

02:17 - 50.695 no evidence that was presented on this record

02:17 - 53.732 as to how the closure

02:17 - 57.369 of, closure, I should say, the transition

02:17 - 02.407 of this hospital, because the term closure was never used by the,

02:18 - 07.045 defendants in terms of what they were doing.

02:18 - 11.182 They were transitioning to a special hospital, a 100 bed mental

02:18 - 14.185 health facility that the community also needed.

02:18 - 18.290 but here,

02:18 - 21.493 in terms of, evidence,

02:18 - 25.563 that there would be any degree of prejudice,

02:18 - 30.068 maybe some inconvenience, that people would suffer.

02:18 - 33.138 But we don't know what the effect would be because there's simply

02:18 - 34.773 no evidence of that.

02:18 - 37.309 Counsel, let me ask you a question.

02:18 - 40.412 So it bothers me about this case in the posture of it.

02:18 - 45.417 If there is not a preliminary injunction in this matter, the harm just continues.

02:18 - 48.286 And I think what is the remedy for this breach?

02:18 - 51.256 What is the remedy?

02:18 - 56.061 you know, you just, your client, decided it was going to do what it wanted

02:18 - 59.364 to do without consultation with the foundation and,

02:19 - 03.134 the other steps required by the contract, and they just go there.

02:19 - 05.804 Mary, where is that? Where's the remedy for that?

02:19 - 06.271 Well, first.

02:19 - 09.374 First, Your Honor, you're assuming that there was a breach.

02:19 - 11.409 Now, that was very much an issue.

02:19 - 14.179 The Commonwealth Court did not reach that question.

02:19 - 18.850 The, issue here is whether this transition of services

02:19 - 22.053 within, five year, I mean, after

02:19 - 26.024 five years from the entry into the agreement with something

02:19 - 30.462 that the contract specifically permitted in section 11.15

02:19 - 33.732 and that 11.15 had to be read,

02:19 - 38.169 in context, that 11.16, the trial judge relied on

02:19 - 41.773 had to be read in the context of 11.15,

02:19 - 44.943 and those issues had not been reached.

02:19 - 46.611 They have not been determined.

02:19 - 49.614 I think there is a substantial case.

02:19 - 50.348 How could that be?

02:19 - 53.385 Didn't they have to consider the likelihood of success on the merit?

02:19 - 56.287 That would be a factor that would

02:19 - 59.824 necessarily be considered in granting a preliminary injunction. Yes.

02:20 - 04.729 And, you know, the trial court did the trial court did.

02:20 - 07.532 The Commonwealth Court did not reach that question,

02:20 - 10.668 but the trial court had to decide that there was a likelihood

02:20 - 13.938 of success on the merits, i.e., the contract was breached.

02:20 - 15.240 Correct? Yes.

02:20 - 20.345 And we suggest and that issue, by the way, is subject to de novo review on appeal.

02:20 - 23.681 And we argued in the Commonwealth Court

02:20 - 27.385 that the trial judge was wrong in making that determination.

02:20 - 30.555 The Commonwealth Court did not reach that question, but that we

02:20 - 32.090 reverse the Commonwealth Court.

02:20 - 36.327 It would go back for their consideration of the remaining preliminary injunction.

02:20 - 40.265 Yes. If if the if this court were to determine

02:20 - 45.703 that the Commonwealth Court heard on its determination of irreparable harm,

02:20 - 49.441 then the remedy would not be to reinstate the injunction.

02:20 - 51.543 And I can talk about that in a minute.

02:20 - 56.514 The remedy would be to remand for further consideration, but you have to vacate

02:20 - 59.584 the Commonwealth court's order reversing the preliminary injunction.

02:20 - 00.919 There would be a reversal

02:21 - 04.522 in a remand, yes, but it would not necessarily be reinstated.

02:21 - 09.694 And that would be because there needs to be a determination of these other elements

02:21 - 14.265 with respect to injunctive relief and the circumstances have changed.

02:21 - 16.334 But that's a reason.

02:21 - 17.902 Yeah, that doesn't make any sense to me.

02:21 - 20.004 They had a preliminary injunction at the trial court.

02:21 - 21.339 It went to the Commonwealth Court.

02:21 - 25.176 The Commonwealth Court reversed it for one reason and one reason only.

02:21 - 28.446 We we reversed that Commonwealth Court determination.

02:21 - 30.482 You're saying you still get the injunction?

02:21 - 31.683 No, there was not.

02:21 - 33.485 Is there a stay of the injunction? Yes.

02:21 - 35.487 The injunction was stayed pending appeal.

02:21 - 36.588 Oh, as by who?

02:21 - 40.792 Judge sighs during the Commonwealth Court on December 7th, 2022.

02:21 - 46.831 I wasn't aware that injunction has not been in effect for over a year and a half.

02:21 - 49.834 Meanwhile, circumstances have changed.

02:21 - 54.639 The, Department of Health entered its order that justice McCaffery

02:21 - 58.743 spoke about shortly after the Commonwealth court's preliminary injunction,

02:21 - 02.413 because the entry of the preliminary injunction,

02:22 - 04.415 actually had the

02:22 - 08.486 effect of, accelerating the departure of staff

02:22 - 11.322 from the hospital to the point where the Department of Health

02:22 - 14.559 and we were yes, it was self-report, and we're required to report

02:22 - 18.296 to the Department of Health and the Department of Health ordered that

02:22 - 22.166 the facility be closed because it didn't have the staff

02:22 - 28.106 and we had an impossibility defense that it was we were trying to hire staff.

02:22 - 30.942 After Judge Jenkin made his order, it was impossible.

02:22 - 33.945 And then Judge Sisler entered the stay.

02:22 - 36.848 When that stay was entered

02:22 - 40.752 before the briefing, before the argument in the Commonwealth Court,

02:22 - 44.556 the plaintiff could have challenged that in this court.

02:22 - 48.393 There was no challenge to the stay pending appeal.

02:22 - 52.263 The appeal in the Commonwealth Court from,

02:22 - 56.367 the preliminary injunction was expedited on our motion.

02:22 - 01.272 And then after the Commonwealth Court entered its decision,

02:23 - 05.109 reversing again, there was no effort on the part of the plaintiff

02:23 - 08.780 to seek any additional emergency relief.

02:23 - 13.518 The plaintiff could have gone back into the trial court under the rules

02:23 - 18.523 of appellate Procedure, and moved the case forward for a permanent injunction.

02:23 - 22.393 If there had been evidence of irreparable injury

02:23 - 25.396 that patients were suffering,

02:23 - 29.100 the people were having greater injury

02:23 - 32.470 because they couldn't get to an emergency room.

02:23 - 35.440 that was closer than that.

02:23 - 38.142 The one that was two miles from this hospital.

02:23 - 40.211 first of all, I think that would have been reported.

02:23 - 44.282 And secondly, I think that would have been the subject of a of a renewed request

02:23 - 48.453 for preliminary injunction relief, which the rules of Civil Procedure permit.

02:23 - 51.823 We saw none of that from the plaintiffs in this case, Mr.

02:23 - 55.293 Barr, the other four hospitals, that you said were in the vicinity.

02:23 - 58.262 How many of them have emergency rooms?

02:23 - 00.698 I believe that all of them do.

02:24 - 02.600 I would have to look at that.

02:24 - 07.071 But certainly Mercy Fitzgerald has a full service emergency list the two mile away.

02:24 - 09.474 Yes, that has a full service emergency room.

02:24 - 11.442 Okay. And,

02:24 - 14.912 so in terms of whether,

02:24 - 18.282 I mean, we have a unique situation here with this case at this point,

02:24 - 23.554 we have looked and we have not found any situation where this court ever

02:24 - 27.058 has reinstated

02:24 - 31.095 a preliminary injunction that an intermediate appellate court

02:24 - 34.465 had reversed,

02:24 - 39.871 this long after after the fact, the closest, that we have come to finding

02:24 - 44.842 any situation like that was, in the,

02:24 - 48.446 the giant eagle case in, I believe, 1994,

02:24 - 51.449 when the, Court of Common

02:24 - 54.452 Pleas enjoined mass picketing,

02:24 - 56.821 the strike was settled,

02:24 - 00.224 the Superior Court reversed the injunction,

02:25 - 05.697 abort the mass picketing, and then this court reinstated that order,

02:25 - 09.100 mainly because it found the decision

02:25 - 12.103 wasn't moot because there was a council fee remedy involved.

02:25 - 18.476 And so but we've never seen a situation where a preliminary injunction was granted

02:25 - 22.780 and then stayed not in effect for nearly two years

02:25 - 27.819 and then reinstated without an analysis of the situation on the ground.

02:25 - 33.491 And that's why the rules of appellate procedure allow for prompt review.

02:25 - 37.895 But that's why the rules also allow the case to continue in the trial court.

02:25 - 43.201 So where are we on the permanent injunction hearing in this case?

02:25 - 46.671 The case has been stayed in the trial court now

02:25 - 51.342 pending the, possibility of a sale of the hospital.

02:25 - 54.445 And we attached that order to our to our brief,

02:25 - 57.882 plaintiff stipulated to that stay.

02:25 - 02.053 And, so the case is not move forward, but there was no effort up

02:26 - 05.289 until the time of the entry into that stipulation

02:26 - 08.793 to move the case forward on the permanent injunction.

02:26 - 13.564 Mr. Sargent's brief argues that our filing the appeal prohibited

02:26 - 17.135 the taking of discovery, prohibited the moving of the case to trial.

02:26 - 21.272 That is not the case under rule 311 of the Rules of appellate Procedure.

02:26 - 26.944 So this is a case that involves a unique procedural circumstance.

02:26 - 30.982 And that is why Justice Robson and I apologize for the long answer.

02:26 - 32.683 It would be inappropriate

02:26 - 36.521 for this court merely to reinstate the preliminary injunction,

02:26 - 40.224 even if this court were to find the Commonwealth Court.

02:26 - 43.861 And I apologize because I wasn't aware of the stay of the injunction.

02:26 - 47.331 but, you know, we took the case, at least as I understand it.

02:26 - 50.902 because of a concern

02:26 - 55.406 that, of creeping preliminary injunction, appellate jurisprudence, where

02:26 - 59.210 where we aren't necessarily clear,

02:26 - 01.279 or maybe some of our cases have been applied

02:27 - 04.282 a certain way by our intermediate appellate courts to really get

02:27 - 08.786 rid of the deference or highly deferential standard

02:27 - 12.423 that we give the trial court judges any apparently reasonable grounds.

02:27 - 16.494 the, the what I think is,

02:27 - 20.264 complicated language in summit town of concrete evidence

02:27 - 24.302 of a harm that you're trying to prevent in a preliminary injunction context.

02:27 - 25.937 That's why we took it.

02:27 - 28.506 Can we address those?

02:27 - 30.741 Is this a wrong vehicle to address those issues?

02:27 - 31.843 Is that what you're arguing?

02:27 - 35.413 I think this is the wrong vehicle at this point to address those issues.

02:27 - 38.249 But if the court is interested in those issues,

02:27 - 41.385 I would agree that it does require a clarification.

02:27 - 45.423 And there are two things I would commend the court for its consideration.

02:27 - 49.227 there are two really interesting law review articles.

02:27 - 53.397 These are not in our brief, but, there was an article by Judge Henry

02:27 - 54.565 Friendly.

02:27 - 57.602 31 Emory Law Journal,

02:27 - 01.339 747 from 1982,

02:28 - 04.141 in discretion about discretion,

02:28 - 08.746 in which Judge Friendly goes at great length about the use of the term.

02:28 - 13.985 Discretion in the context of analysis of a of preliminary injunctions,

02:28 - 18.389 an appellate review of those decisions, and why, perhaps,

02:28 - 23.027 some of the language has been imprecise and has failed to distinguish

02:28 - 26.864 between different levels of, discretion and,

02:28 - 32.169 why this has led to confusion and erroneous decisions in his, opinion.

02:28 - 36.674 Another great article by Professor Morris

02:28 - 40.578 Rosenberg entitled Judicial Discretion

02:28 - 44.682 of the Trial Court viewed from above,

02:28 - 49.287 was in the 1971 Syracuse Law Review.

02:28 - 53.057 And again Judge Rosenberg talked or Professor

02:28 - 58.195 Rosenberg talks about the confusion that's come about as the result

02:28 - 02.166 of what he referred to as automated verbiage

02:29 - 05.369 and knee jerk terminology

02:29 - 10.341 in, describing the use of discretion when what we're really talking about

02:29 - 15.012 is the application of legal standards, which this court has summarized

02:29 - 16.747 in the Somerton case.

02:29 - 19.083 And Judge Friendly's argument is

02:29 - 22.853 you measure preliminary injunctions against those legal standards,

02:29 - 25.856 and the question is whether the evidence supported

02:29 - 29.060 the exercise of those standards in a given case.

02:29 - 34.031 And when you mess that up with language about discretion and highly deferential,

02:29 - 38.469 it confuses the inquiry of what courts really are doing.

02:29 - 41.539 And I think you have to distinguish between how you're

02:29 - 45.042 describing the standard and then what that standard really is.

02:29 - 47.645 What are the courts doing in these situations?

02:29 - 50.247 What is the reality of appellate review?

02:29 - 53.050 What is the reality of trial court review?

02:29 - 56.754 And the term discretion is just so imprecise.

02:29 - 01.325 Judge Alderson has written about this in his book, The Judicial Process.

02:30 - 06.130 Professor Dworkin and Taking Rights Seriously heart and sax

02:30 - 07.832 in the legal process.

02:30 - 11.736 and discretion is probably not the right term.

02:30 - 16.073 But again, while these are issues that I think it is right

02:30 - 19.143 for this court to consider and clarify the law,

02:30 - 22.113 I don't know that this case is the vehicle to do that.

02:30 - 26.684 Why is it, I mean, why isn't this the case to test

02:30 - 30.521 the concrete evidence standard of some account?

02:30 - 34.592 The court could do that in the context of this record,

02:30 - 37.094 but I'm referring to the ultimate relief

02:30 - 40.097 that would be granted at the conclusion of the decision.

02:30 - 43.467 is this court rendering what might be an advisory decision?

02:30 - 46.370 Would you like to sum up, Mr. Barr?

02:30 - 47.938 one other question before Mr.

02:30 - 49.740 Fire sums up, please.

02:30 - 50.041 Sure.

02:30 - 53.944 why wouldn't this be an appropriate case for us to does

02:30 - 57.214 to resolve the issue of a term of,

02:30 - 00.885 your your, irreversible harm

02:31 - 04.922 in the context of the contract for use and preliminary objection.

02:31 - 08.092 Since you've said that our court has not reached that issue.

02:31 - 09.994 Yes. Irreparable harm. Yes. I'm sorry.

02:31 - 13.798 I believe that that should be determined on the basis of a full record

02:31 - 16.801 with respect to how this contract was negotiated.

02:31 - 21.939 And, I think that should do so at a preliminary injunction stage

02:31 - 26.477 rather than at a permanent injunction stage, would, result in,

02:31 - 30.247 at best, only a tentative construction of the agreement.

02:31 - 33.517 And I think that, in the absence of a full record,

02:31 - 36.687 we don't know what considerations the parties were taking into account.

02:31 - 42.793 And while I appreciate your, comments on, the discretionary nature of,

02:31 - 46.730 this case, and, it seems to me that,

02:31 - 49.233 you would

02:31 - 53.838 have a stronger argument, at least in my view, if the trial court,

02:31 - 56.941 who was the court hearing the facts

02:31 - 01.846 and applying the facts to the law framework here, particularly where,

02:32 - 05.883 there's not an obvious monetary

02:32 - 08.853 relief in this case for the parties.

02:32 - 12.957 if they had ruled in your favor on the planar injunction, I have a

02:32 - 17.161 a different view where the appellate court is

02:32 - 20.131 the one who,

02:32 - 22.199 granted or

02:32 - 23.968 denied the preliminary injunction.

02:32 - 25.736 Well, and then we get into the question is,

02:32 - 30.141 did the Commonwealth Court exercise the appropriate level of review

02:32 - 34.678 and apply this court's precedent in Somerton and other cases?

02:32 - 38.382 And that certainly is presented by the record in this case?

02:32 - 39.917 Thank you.

02:32 - 43.320 Now, do you wish to sum up or have you, we think

02:32 - 46.524 the Commonwealth, this court should affirm the decision of the Commonwealth Court.

02:32 - 48.425 All right. Thank you, Mr. Byron. Mr.

02:32 - 50.828 Sargeant expertly argued on both sides.

02:32 - 53.063 Your clients are well served.

02:32 - 55.866 Our next case is Commonwealth versus hunt.

02:32 - 58.769 This case involves the constitutionality of section

02:32 - 02.106 3755 of the Pennsylvania motor Vehicle Code.

02:33 - 07.411 This allows for emergency room physicians or the physician's designee

02:33 - 11.315 to take blood samples from operators of motor vehicles who

02:33 - 12.516 are involved in an accident,

02:33 - 14.685 who require

02:33 - 17.688 medical attention in an emergency room.

02:33 - 21.125 If there's probable cause to believe that the driver was operating

02:33 - 24.929 under the influence of alcohol or controlled substance.

02:33 - 29.767 The trial judge in Cumberland County in the underlying case

02:33 - 33.037 held that section 3755

02:33 - 36.040 is unconstitutional and dismissed a criminal case

02:33 - 40.311 because the issue involves the constitutionality of a statute,

02:33 - 44.048 the Commonwealth was permitted to immediately appeal directly

02:33 - 46.650 to the Supreme Court.

02:33 - 49.720 The case involves a fatal automobile accident that occurred

02:33 - 51.755 in Cumberland County.

02:33 - 54.758 When the police arrived at the scene of the accident,

02:33 - 57.328 they found two people who were on the roadway

02:33 - 00.798 who were, believed to have been ejected from the vehicle.

02:34 - 04.702 They also found fentanyl patches on the on the ground

02:34 - 07.805 and found open containers of alcohol.

02:34 - 10.241 The defendant,

02:34 - 13.978 who was a driver, had an odor of alcohol, slurred speech

02:34 - 16.981 and admitted that he was the driver and that he had been drinking.

02:34 - 20.017 The passenger succumbed to her injuries at the scene.

02:34 - 24.555 The defendant was transported to Holy Spirit Hospital

02:34 - 26.890 in Camp Hill for treatment.

02:34 - 28.959 When the investigating trooper arrived

02:34 - 32.329 at the defendant's bedside, he found him to be unconscious.

02:34 - 36.734 However, he read the unconscious defendant

02:34 - 41.038 the language from a form concerning the right to refuse blood test.

02:34 - 45.876 He then requested medical personnel to draw the defendant's blood,

02:34 - 49.580 and submitted an acknowledgment that the determination

02:34 - 52.583 of probable cause for DUI had been established.

02:34 - 56.587 After the blood was drawn, the trooper applied for and received

02:34 - 00.190 a warrant from a magisterial district judge for a blood draw

02:35 - 02.593 when the blood was

02:35 - 06.063 drawn, when the blood that was drawn from the defendant was tested,

02:35 - 07.865 his blood alcohol level

02:35 - 10.968 was approximately twice the legal limit for driving in Pennsylvania,

02:35 - 14.438 and there was marijuana and cocaine present in the defendant's system.

02:35 - 20.077 At trial, the defendant prior to trial, I should say the defendant

02:35 - 24.715 filed a pretrial motion motion seeking the suppression of the blood test results

02:35 - 28.352 and asked the court to dismiss certain charges.

02:35 - 32.323 The trial judge found that

02:35 - 36.327 the hospital that the blood that was drawn in the hospital in response

02:35 - 39.797 to the state troopers determination of probable cause was improper

02:35 - 43.200 because there was not a search warrant issued.

02:35 - 47.171 The trial court then granted the motion to suppress the blood test,

02:35 - 51.842 the blood test results concluding that section 3755

02:35 - 56.480 of the Motor Vehicle Code violated constitutional search and seizure rights.

02:35 - 59.383 The issue before the court is

02:35 - 02.853 whether or not the blood draw performed at Holy Spirit Hospital before search

02:36 - 05.856 warrant was obtained violates the United States Constitution.

02:36 - 10.794 The Pennsylvania Attorney General's Office has intervened and filed a brief

02:36 - 14.565 supporting the position of the District Attorney of Cumberland County,

02:36 - 17.901 seeking the reversal of the trial court's order.

02:36 - 22.072 Let's go to the courtroom and listen to the arguments in Commonwealth versus hum.

02:36 - 24.241 May it please the court.

02:36 - 25.142 Jennifer Robinson

02:36 - 28.145 from Cumberland County District Attorney's Office, opposing counsel,

02:36 - 32.182 as Your Honor just indicated, the Commonwealth does believe

02:36 - 36.420 that the trial court aired by addressing the constitutionality of 3755.

02:36 - 40.090 I submit that this analysis in this case

02:36 - 43.827 could have been done through the lens of exigent circumstances,

02:36 - 47.564 which is a well accepted exception to the warrant requirement.

02:36 - 52.536 My position is that by reaching the constitutionality of this

02:36 - 56.473 particular statute, the trial court ignored clear precedent from this

02:36 - 00.811 this court that constitutionality should be reached as a last resort,

02:37 - 05.282 and only when the language of the statute is clearly, palpably and plainly

02:37 - 09.186 in violation of the Constitution or right of the individual counsel.

02:37 - 12.956 did the Commonwealth raise exigent circumstances?

02:37 - 16.627 So the attorney that handled the suppression

02:37 - 19.930 hearing, I don't think she actually used the word exigent circumstances.

02:37 - 23.901 However, she did on the record have the troopers testify

02:37 - 25.536 to the surrounding circumstances.

02:37 - 28.872 And there were documents submitted to the trial court with the suppression,

02:37 - 32.042 records that outline the time frames.

02:37 - 36.814 in this particular case, the crash occurred at 10:34 p.m.,

02:37 - 41.785 and the troopers testified that, you know, it was essentially mayhem.

02:37 - 42.986 There was debris everywhere.

02:37 - 46.023 There was, the victim, Mary Staggs, who unfortunately

02:37 - 48.625 did not actually make it to the hospital. She died enroute.

02:37 - 52.296 There was many things that need to be taken care of on scene.

02:37 - 56.200 And the troopers eventually were able to get one, was able

02:37 - 58.268 to get to the hospital with Mr. Hunt.

02:37 - 01.805 However, when he arrived, the defendant at that point in time was no

02:38 - 02.940 longer conscious.

02:38 - 06.510 I would note that the blood draw completed

02:38 - 10.781 for pursuant to 3755 was done at 12:30 a.m..

02:38 - 13.450 So we were very close to that two hour window.

02:38 - 16.453 Would you explain why they didn't attempt to get a warrant?

02:38 - 19.156 possible.

02:38 - 23.694 The timing was, I think, no MV available.

02:38 - 29.132 I mean, what was the explanation for failing to get the warrant?

02:38 - 32.970 So I don't believe that anyone at the trial court level of specifically

02:38 - 37.140 asked that I would submit that because it was very close

02:38 - 39.409 to that two hour time limit. It was the middle of the night.

02:38 - 43.947 And in Cumberland County, we require Ada approval before the magistrate approval

02:38 - 45.749 that if they had sought

02:38 - 49.653 to get that warrant, they were already at the two hour time.

02:38 - 53.023 And then when you add on top of that the Ada approval and the magistrate,

02:38 - 55.893 you're well beyond your two hour time frame. The record

02:38 - 58.862 they did not ask anything

02:38 - 03.300 about the attempt or lack of attempt to get a search warrant.

02:39 - 08.639 It was very, much conceded that this was done

02:39 - 12.809 at the request of the hospital pursuant to 3755. Yes.

02:39 - 15.412 Let's go back to the Constitution panel issue.

02:39 - 15.946 Correct.

02:39 - 18.949 When you look at 3755 A

02:39 - 22.786 and how it reads is anyone who determines probable

02:39 - 26.557 cause shall cause a blood withdrawal by a medical.

02:39 - 31.094 How is that not facially unconstitutional as a

02:39 - 35.198 no exception to the warrant requirement, which is not so, Your honor,

02:39 - 39.002 I would direct this court to history from the Commonwealth Court

02:39 - 42.806 because with all due respect, we'll look at the history at the same big.

02:39 - 44.341 It's not ambiguous. It says.

02:39 - 46.009 And what's ambiguous? Maybe.

02:39 - 46.843 Who can determine?

02:39 - 50.347 Can my third grade student determine probable cause?

02:39 - 53.617 Can the the maintenance and the maintenance person in the hospital

02:39 - 55.285 determine there's probable cause?

02:39 - 57.054 The question I have, as you said,

02:39 - 00.157 they incorrectly approached the constitutionality of the statute.

02:40 - 01.625 Very specifically.

02:40 - 05.562 When you look at the plain text, it indicates

02:40 - 10.000 the general rule is anyone, anyone, undefined person

02:40 - 14.671 who determines probable cause mandates a medical examiner

02:40 - 17.908 to puncture someone's body to withdraw their blood.

02:40 - 21.244 Tell me how that's not facially unconstitutional.

02:40 - 25.415 I submit that because the courts have interpreted that to mean

02:40 - 28.752 the police are to make the probable cause determination, that it's

02:40 - 32.823 really a mechanism for the police to execute their exigent search.

02:40 - 38.061 The police would be determining probable cause and have exigencies,

02:40 - 41.164 and then requests that the hospital submit the blood pursuant to this.

02:40 - 46.637 And if you look at subsection B and the, history of analysis from other courts,

02:40 - 49.773 in this particular section, they look at the fact that this section

02:40 - 54.778 was actually enacted to prohibit lawsuits or protect the emergency personnel

02:40 - 57.781 who are actually complaining that we just added language to the statute

02:40 - 00.717 that doesn't exist, by saying police officers

02:41 - 02.486 will determine the probable cause.

02:41 - 03.787 That's not in the statute.

02:41 - 04.287 I do.

02:41 - 06.890 Yes, I agree it's not in the plain language. Yes.

02:41 - 09.393 My position is that because a problem with that,

02:41 - 14.131 I believe that because the courts have reviewed it

02:41 - 17.034 and taken the position that the legislature

02:41 - 20.203 intended that to be a probable cause determination by the police,

02:41 - 22.773 that that's a reasonable reading of the statute

02:41 - 25.776 and would not lead it to be specifically

02:41 - 30.914 any person making the determination in the Commonwealth Court in Emory

02:41 - 35.552 in 1985 actually specifically declined to find this statute unconstitutional.

02:41 - 38.755 And they were analyzing the fact that the

02:41 - 41.725 the police officer would make that probable cause determination.

02:41 - 46.196 So in this case, and I'm just a little confused about the facts,

02:41 - 49.566 why didn't the police officer

02:41 - 53.070 try to get a warrant for the blood that was already taken

02:41 - 56.907 by misunderstanding the order of events here?

02:41 - 59.910 So my understanding from

02:42 - 02.379 speaking with the trial counsel

02:42 - 05.782 is that that essentially took place at the same time as this blood draw.

02:42 - 09.553 The record is very lacking as to any detail other than that line

02:42 - 12.556 of testimony from the trooper indicating that they had drawn medical blood.

02:42 - 18.128 it's obviously not evidence in the record, but I can tell you that we

02:42 - 21.565 our office has historically had problems with that particular hospital

02:42 - 23.133 and how they do testing,

02:42 - 26.770 and it's not usually done in a way that's admissible in court.

02:42 - 31.141 So I'm presuming that the trooper was familiar with that and knew that

02:42 - 35.579 Holy Spirit Hospital only does screening for drug and alcohol using urine,

02:42 - 40.050 and that possibly that blood draw was truly just really

02:42 - 42.686 for medical purposes and had nothing to do with what they were looking for.

02:42 - 45.422 But again, I can see the records very lacking on that issue.

02:42 - 45.889 Thank you.

02:42 - 51.628 I think yes, yes.

02:42 - 54.364 Follow up on justice doctor.

02:42 - 58.034 So there are a lot of circumstances.

02:42 - 01.872 I think the statute could be applied in a potentially unconstitutional way.

02:43 - 07.711 we're not here presented with a situation where a custodian

02:43 - 11.481 at the hospital made a probable cause determination and tried to compel

02:43 - 14.518 a physician to take the, take the,

02:43 - 17.888 blood draw.

02:43 - 20.857 Presumably, if the statute is written in such a way

02:43 - 23.226 that only medical professionals can take the blood draw,

02:43 - 26.530 that the medical professionals would at least have to be have a basis

02:43 - 27.731 for probable cause,

02:43 - 30.901 whether somebody convinced them of probable cause or law enforcement in that.

02:43 - 32.202 But there's a

02:43 - 35.806 there's a lot of there's a lot of facts that I can imagine that could tie up.

02:43 - 39.476 What here is sort of a facial constitutional challenge.

02:43 - 43.413 Should we first

02:43 - 46.383 determine whether

02:43 - 49.386 this particular person's constitutional rights were violated

02:43 - 54.691 before we allow them to facially challenge the the constitutionality of a statute?

02:43 - 58.562 Wouldn't the facial constituted unconstitutionality of a statute

02:43 - 59.329 be addressed

02:43 - 02.899 better, more appropriately, by somebody whose constitutional rights were violated?

02:44 - 05.402 That's my question.

02:44 - 08.939 I would agree that probably is a better way to look at it.

02:44 - 12.909 it's like a standard question, which is sort of raised

02:44 - 14.544 and it kind of goes to justice.

02:44 - 17.547 Donoghue's question is and the procedure was kind of weird, right?

02:44 - 19.716 Because this is it was a suppression motion. Yes.

02:44 - 23.486 this wasn't a Commonwealth Court original jurisdiction action challenge.

02:44 - 25.922 The facial constitutionality of a statute.

02:44 - 29.226 There's different burdens of proof, correct suppression and things like that.

02:44 - 33.063 But it does it does create a problem because

02:44 - 37.267 there could be exigency here.

02:44 - 41.104 But the decision by the district attorney not to push it

02:44 - 45.075 at the hearing forces almost, almost,

02:44 - 48.211 almost cabin's us to ignore it

02:44 - 51.448 and treat it as if this person's rights were violated

02:44 - 55.619 when it's entirely possible and we could strike the statute as unconstitutional.

02:44 - 59.522 But that doesn't necessarily mean the evidence is suppressed.

02:44 - 01.291 Right? I would agree with that.

02:45 - 05.662 I think that, this particular statute has had different

02:45 - 08.298 views by the courts over periods of time.

02:45 - 13.904 If you look back to the 1980s and 1990s, this statute is referred to

02:45 - 19.776 as a counterpart of implied consent, and it's referenced to be related to comply.

02:45 - 21.678 excuse me, implied consent,

02:45 - 25.382 but the courts specifically say that it's not actually implied consent.

02:45 - 29.386 However, that's evolved over time, and it's kind of now become considered

02:45 - 30.820 part of implied consent.

02:45 - 32.689 So I think that if we really look back

02:45 - 36.526 to how this statute originated, that changes the analysis.

02:45 - 39.763 And I think it's also important to look at after Burchfield,

02:45 - 44.367 the General Assembly went back and they did amend 1547.

02:45 - 45.902 This statute was not amended,

02:45 - 46.770 which takes me back

02:45 - 50.073 to the original intent of this statute, really just being a mechanism

02:45 - 54.210 for the police to work with the hospital under those exigent circumstances.

02:45 - 57.047 So far, as Justice Daugherty pointed out, we don't

02:45 - 00.050 the intent is what's written, in the words of the General Assembly.

02:46 - 00.684 Right.

02:46 - 04.554 And unless it's if it's ambiguous, then you can try to figure out what the

02:46 - 05.488 what the nature

02:46 - 09.025 and the occasion of was for the statute and things like that to construe it.

02:46 - 10.193 Are you content?

02:46 - 12.329 Are you claiming the statute is ambiguous?

02:46 - 16.499 No, I know, I do think, though,

02:46 - 20.170 to your point about constitutional rights violations, things of that nature.

02:46 - 21.304 The trial court here

02:46 - 25.075 completely ignored federal case law related to the Fourth Amendment,

02:46 - 30.180 specifically Mitchell versus Wisconsin and other similar circumstance is

02:46 - 33.616 where the federal courts have said that context like this,

02:46 - 36.619 where there is an emergency circumstance, there is a crash.

02:46 - 37.654 In this particular case,

02:46 - 40.757 there was a person who was deceased as a result of that crash.

02:46 - 42.292 Did you guys argue that?

02:46 - 43.660 Did the DA's office argue it?

02:46 - 46.229 Did you argue, Mitchell, did you say, Your Honor,

02:46 - 48.131 you do not need to address the Constitution

02:46 - 51.501 or the statute because this defendant, his constitutional rights were not violate.

02:46 - 55.205 From my reading of what was submitted

02:46 - 58.274 by defense counsel and the trial attorney, they handled the suppression.

02:46 - 01.311 No one specifically said that it was raised

02:47 - 04.748 in the, we say it

02:47 - 07.751 I think, in a way, in a way, in

02:47 - 10.653 in defense, in the suppression motion,

02:47 - 14.324 they asserted that there was no exception whatsoever that applied.

02:47 - 17.861 And the your response, you said there was

02:47 - 23.867 the prosecutor put on evidence that I submit would support exigency,

02:47 - 27.003 and it's not unheard of that a court could, on their own recognize that.

02:47 - 30.006 But I concede she did not specifically use the words exigency.

02:47 - 33.143 Judge Maslin aired

02:47 - 36.279 when he wrote, in his opinion

02:47 - 40.884 that that we don't I don't see an alternative basis

02:47 - 43.553 on which to rule on this question. I must address

02:47 - 46.523 the constitutional question, which is essentially what he wrote.

02:47 - 50.126 I would I would disagree, I would disagree with that.

02:47 - 53.663 However, my bigger disagreement is the reliance on miers.

02:47 - 56.766 I think miers is very much to students distinguishable from this case.

02:47 - 00.136 If you look at miers, in that particular instance,

02:48 - 02.839 the defendant was not involved in a car crash.

02:48 - 06.443 The defendant was taken and essentially became unruly and was Medicaid

02:48 - 07.343 by the hospital.

02:48 - 11.848 And the whole analysis was done under the implied consent statute, consent statute.

02:48 - 17.220 And he then essentially said, that's the same as 3755 and relied on miers

02:48 - 21.591 disregarding any other case law related to this particular issue.

02:48 - 26.796 When we have other cases, such as Trey, he that look

02:48 - 30.333 to potential exigent circumstances under these types of facts,

02:48 - 34.070 even Jones Williams got a little because to me,

02:48 - 37.574 to get over, very strong case

02:48 - 42.612 law, somebody got to say we couldn't get a warrant because

02:48 - 45.949 because in my view, the default is get a warrant.

02:48 - 48.284 What's what's the exit you keep? Yeah.

02:48 - 50.687 I mean, what is this? What's the exigency? Yeah.

02:48 - 55.892 So our position is the exigency is that the defendant at 10:34 p.m.

02:48 - 58.194 was in a very severe crash

02:48 - 01.831 that resulted in both him and the passenger being objected.

02:49 - 05.902 There was, extensive response by first responders.

02:49 - 10.173 The troopers were out on scene up until the time that the cars unit

02:49 - 11.474 which is there crash reconstruction.

02:49 - 14.043 People could come out at 11:18 p.m..

02:49 - 16.713 The trooper that respond

02:49 - 19.716 to the hospital arrived there at 1150

02:49 - 23.319 and attempted to interview the defendant and request a consensual blood draw.

02:49 - 24.420 But at that point in time,

02:49 - 28.158 the defendant had, become unconscious or was not responding.

02:49 - 28.691 The trooper,

02:49 - 33.363 the trooper was asking for that consent because at the time

02:49 - 35.832 they were investigating the crash scene, they saw liquor bottles.

02:49 - 38.101 They had witnesses saying the defendant smelled of alcohol.

02:49 - 41.571 He admitted he had been drinking fentanyl patches, cocaine, marijuana,

02:49 - 44.574 all these things, they call in for a warrant right then and there.

02:49 - 45.842 Yeah. Again.

02:49 - 49.812 So if you look at the timeline, we're now up to 1150.

02:49 - 52.982 The trooper in the defendant or at the hospital, as we recognize

02:49 - 55.185 alcohol dissipates

02:49 - 58.588 battery versus McNeely, basically said that the natural metabolism of alcohol

02:49 - 01.291 is not a per se exception under the Fourth Amendment.

02:50 - 04.260 I, I agree it not on its own. It is not.

02:50 - 07.530 I think that when you when you see argument in this case,

02:50 - 10.600 I think when you look at the totality of the circumstances of everything

02:50 - 14.070 that was occurring and the limited time frame, they had to get that warrant,

02:50 - 17.006 they were already at the two hour mark when he was at the hospital,

02:50 - 20.944 which he was under, under, the DUI laws

02:50 - 24.781 that come is required to get the blood alcohol draw down within two hours.

02:50 - 28.885 There is a potential to argue that why you did not do it.

02:50 - 31.588 But again, we're back to the problem of alcohol dissipating.

02:50 - 33.122 So then you're evidence you're at.

02:50 - 35.725 And so what's the citation to that?

02:50 - 36.292 To our law.

02:50 - 38.528 it's under 3802.

02:50 - 40.964 It's one of the subsections under the DUI law.

02:50 - 43.533 Okay. Council, you're at an hour and,

02:50 - 47.370 20 minutes by my calculation.

02:50 - 51.574 But between the time of the crash and the time the blood draw form was done

02:50 - 52.675 at the hospital,

02:50 - 56.879 they would have had approximately 16 minutes to comply with that two hour rule.

02:50 - 00.183 And since they waited that long to do anything.

02:51 - 01.117 I mean, so far

02:51 - 05.221 you still haven't mentioned anything about why they couldn't get a warrant.

02:51 - 07.624 Well, the troopers were 80 to 1.

02:51 - 10.860 The two troopers that were responding were on scene with the victim,

02:51 - 12.862 who was severely injured and ultimately died.

02:51 - 14.697 They were on scene with this defendant.

02:51 - 18.401 They were basically managing a very large crash scene.

02:51 - 20.203 We're thinking about investigating at that point.

02:51 - 23.439 They were thinking about dealing with the immediate issues of the accident.

02:51 - 25.074 Yes. Essentially triaging.

02:51 - 26.609 They had to close down the road.

02:51 - 28.711 They had to call for the crash reconstruction team.

02:51 - 30.513 They had to wait for fire and EMS to arrive.

02:51 - 33.616 The victim was life flighted out of the crash scene,

02:51 - 37.720 so there was a lot of pieces, all which go to things

02:51 - 41.624 that the courts have recognized can be exigent circumstances that can I ask that?

02:51 - 42.091 Just follow.

02:51 - 45.528 If you don't get the blood within two hours,

02:51 - 48.531 it doesn't mean there's a per se rule that the blood's out.

02:51 - 51.234 All it means is you've got to offer an excuse as to why

02:51 - 55.405 you couldn't get it within two hours or or offer relation back testimony.

02:51 - 57.273 Right? Correct. The.

02:51 - 01.577 So again, why don't you just get it to two and a half or three hours and provide

02:52 - 04.847 the same explanation that you just provided to us

02:52 - 08.184 to the trial court and then provide relation back testimony?

02:52 - 11.621 You'd still have the blood, and the blood would still be good.

02:52 - 13.923 Potentially, yes, it would be.

02:52 - 17.093 I think hindsight is probably 2020 for the troopers.

02:52 - 20.830 I think probably in the moment they're trained to get that blood

02:52 - 22.598 within two hours. And that's the best evidence

02:52 - 25.935 we're required to put blood draw evidence in at trial.

02:52 - 29.439 again, with alcohol dissipating, which this court

02:52 - 33.176 and federal courts have recognized, that's a problem for criminal prosecutions

02:52 - 36.879 with the dissipation and the levels required to prove the DUI.

02:52 - 39.549 and this particular case, a homicide by vehicle.

02:52 - 42.518 While DUI, it was very important to have accurate results.

02:52 - 46.055 So what did McNeely mean when it said the mere

02:52 - 50.426 dissipation of alcohol is not, in and of itself, an excuse?

02:52 - 55.198 I read that is, I read that as being if you have your standard DUI case

02:52 - 57.300 and for some reason

02:52 - 01.437 there's some problem getting that person to get their blood drawn.

02:53 - 05.208 And they, you know, that that alone is not going to be an exigency,

02:53 - 09.312 but where you have not just the standard case

02:53 - 11.514 where you have something extra, you have a crash,

02:53 - 12.849 you have the person unconscious,

02:53 - 16.052 which I believe some courts have said that the person be unconscious alone

02:53 - 20.790 constitutes an exigency where you have, fatal crash investigation.

02:53 - 23.860 You have all of these different pieces working together

02:53 - 26.763 in addition to that dissipation of alcohol.

02:53 - 29.499 I think that's where you get to the point where it's an exigency.

02:53 - 33.569 I'm not asking for a per se rule that alcohol and dissipation

02:53 - 35.071 would somehow be exigency.

02:53 - 37.673 I'm not saying in every single crash that that would be the case,

02:53 - 41.611 but I am saying that in this particular instance, due to all of those factors,

02:53 - 44.580 that it should have been considered to be in exigent circumstances.

02:53 - 47.650 And when you review that, how do we review that?

02:53 - 48.184 Is that,

02:53 - 53.256 is that do we review something

02:53 - 56.459 like that on an abuse of discretion by the trial court?

02:53 - 00.430 Do we review it as a question of whether the evidence

02:54 - 03.433 supports the factual finding of exigency?

02:54 - 06.502 none of which we can do here, because the trial court did

02:54 - 08.838 because the trial court didn't address it at all.

02:54 - 12.341 But I'm just kind of wondering is that when you say it's

02:54 - 15.411 a case by case, what is the role of an appellate court?

02:54 - 19.248 If the trial court says this particular

02:54 - 22.585 DUI, suspected DUI, as opposed to a

02:54 - 26.456 as opposed to a

02:54 - 31.461 check DUI checkpoint, this particular DUI, has DUI plus.

02:54 - 36.032 So I think, you look to the rule that says any totality

02:54 - 39.902 of the circumstances for exigency, and you still follow that same analysis.

02:54 - 42.572 It still has the trial court of the Appellate court.

02:54 - 44.774 Is it? I believe it is,

02:54 - 48.444 counsel, that all of that might be true.

02:54 - 52.181 But somebody at the suppression hearing had to say, Your Honor,

02:54 - 55.184 their exigent circumstances here

02:54 - 59.989 that permitted this blood trial, no one said that here

02:55 - 04.861 and that that's the corner we're sort of backed into.

02:55 - 07.663 And it's not a corner. I mean, it's what the trial court said.

02:55 - 10.399 I've been offered no other choice here,

02:55 - 13.469 but to decide the constitutionality of the statute.

02:55 - 17.740 And, I mean, unless somebody raises the issue head on,

02:55 - 22.612 and the trial court doesn't have to search for it,

02:55 - 26.449 I would submit that under all the circumstances presented

02:55 - 29.151 to the trial court in the record, that it would not have been unreasonable

02:55 - 32.522 to recognize it as without somebody asking him to,

02:55 - 36.192 I understand the prosecutor did not use those words,

02:55 - 37.360 but I would still go back

02:55 - 41.264 to the defense attorney raising the issue, initially claiming no exception

02:55 - 44.767 applied, and specifically listing out voluntary consent or exclude

02:55 - 47.637 on the suppression on the suppression hearing.

02:55 - 50.239 And again, I said the procedural posture is right.

02:55 - 53.242 Unfortunate because the burden was really on you

02:55 - 58.047 at the suppression hearing to, you know, he he was heading off.

02:55 - 00.316 He was he was trying to head off.

02:56 - 01.984 You're arguing there was an exception.

02:56 - 04.787 And he teed it up and said no exception.

02:56 - 07.223 Just announced it to you.

02:56 - 11.794 It would make sense that when he that when your response should be the wrong.

02:56 - 15.998 There is an exigency here and that and and again I'm,

02:56 - 19.869 I mean I think we yes, we did hear but we are in sort

02:56 - 23.806 of a peculiar position with the procedural issues.

02:56 - 26.809 the issue was raised is essentially challenging the

02:56 - 30.980 constitutionality of 3755, which places some burden of persuasion on defense.

02:56 - 34.150 I would submit there wasn't really a whole lot done on that side of things.

02:56 - 37.853 But again, the there's a burden at suppression, constitutionality.

02:56 - 42.892 And and again, you're right, because on that issue, they raised it

02:56 - 45.561 in the context of a suppression hearing where the burdens on you.

02:56 - 48.564 But the burden of proving costs unconstitutionally on its face,

02:56 - 52.602 which is higher than as applied challenge, is on that, right?

02:56 - 54.704 Commonwealth. Yes.

02:56 - 57.840 If I'm not mistaken, when I read the notes of testimony

02:56 - 02.478 from the suppression hearing, there were there the blood had already

02:57 - 07.116 been drawn for medical purposes prior to the request of law enforcement.

02:57 - 09.952 Correct. So I looked into that a little bit further.

02:57 - 13.889 The trooper testified and stated that there is nothing

02:57 - 17.860 in any of the criminal complaint incident report,

02:57 - 20.863 any other reference anywhere whatsoever to that happening.

02:57 - 24.634 We can only go on the record that we have it on page nine through 11

02:57 - 28.237 of September 1222 suppression.

02:57 - 31.641 It's, although hospital personnel

02:57 - 34.710 had already drawn blood from APL for medical purposes,

02:57 - 38.514 two additional vials were drawn at the request of Trooper German.

02:57 - 43.552 So the question I have is in lieu of Commonwealth, Commonwealth versus shore,

02:57 - 45.721 you knew

02:57 - 49.825 law enforcement new blood had been drawn to vials there.

02:57 - 53.596 There is no exigency because the blood is preserved,

02:57 - 58.267 yet no warrant was obtained for requested.

02:57 - 01.337 they did actually do a search warrant

02:58 - 02.371 after. Correct.

02:58 - 06.709 They did after that hospital with they drew blood again.

02:58 - 09.979 Yes. Yes, they did do a search warrant.

02:58 - 12.314 I will note the language in the search warrant.

02:58 - 16.619 Doesn't specify which blood sample they were requesting.

02:58 - 19.789 they did a search warrant to secure the blood sample,

02:58 - 25.428 and they did a second search warrant to have it test it at the forensic lab.

02:58 - 28.464 so, honey, how do you.

02:58 - 29.432 Why do you say that?

02:58 - 34.070 I mean, my understanding is the hospital was willing to hand them the vials.

02:58 - 36.072 That's my understanding as well. Yes.

02:58 - 38.641 Then you knew which blood was going to be tested

02:58 - 41.677 because the officer said no, you hang on to it.

02:58 - 42.912 We're going to get a warrant.

02:58 - 46.082 what I meant was, when you look at the actual affidavit

02:58 - 49.285 attached to the search warrant, the trooper doesn't articulate.

02:58 - 52.221 I'm requesting the blood that was drawn pursuant to this request form.

02:58 - 53.923 It simply says the hospital drew.

02:58 - 55.391 But that's the blood I'm requesting.

02:58 - 57.026 So to me, that was a little ambiguous.

02:58 - 00.763 Was also assumes that the blood that was taken for medical purposes still exists.

02:59 - 01.464 Exactly.

02:59 - 05.034 And it assumes that the blood taken for medical purposes was, in fact,

02:59 - 08.471 enough to test forensically and that all of this

02:59 - 11.640 other things that go along with that, which again, we unfortunately don't know.

02:59 - 15.411 Right.

02:59 - 18.414 There are there any other questions?

02:59 - 19.448 We'll figure it out.

02:59 - 19.915 Thank you.

02:59 - 22.918 Let's hear from your opposing counsel.

02:59 - 30.426 May please the court.

02:59 - 32.428 David Rudolf ski for the appellate.

02:59 - 36.699 I want to go right to the point that, Justice Daugherty and,

02:59 - 42.071 justice props and raised, rule 582 H of the rules of criminal Procedure.

02:59 - 46.876 Put the burden on the Commonwealth, to show the legality

02:59 - 49.912 of what the police did at any suppression hearing.

02:59 - 53.582 as you've all noted, the Commonwealth made no attempt

02:59 - 57.720 whatsoever to show that there were any exigent circumstances.

02:59 - 02.091 as the AG concedes, this statute is void on

03:00 - 05.828 its face to the extent it relies on implied consent.

03:00 - 09.265 what obligation do you have

03:00 - 12.768 asserting a facial unconstitutionality of a statute

03:00 - 16.772 to establish that your constitutional rights were violated?

03:00 - 17.206 Right.

03:00 - 22.444 I, I understand that and the argument that was made in the trial court,

03:00 - 25.648 and that we made in our brief to this court,

03:00 - 30.653 is that given the combination of McNeely, Burchfield and Skinner versus,

03:00 - 34.590 railway labor, which was another drug to,

03:00 - 38.627 a drug to, blood test in case and in the federal courts,

03:00 - 42.865 those three Supreme Court cases made it clear,

03:00 - 44.900 and it was McNeely that started it,

03:00 - 48.671 that in this kind of situation, you need a search warrant.

03:00 - 51.140 there can be no implied consent statute.

03:00 - 55.711 So on its face, by authorizing a search

03:00 - 00.516 simply on the request of a state trooper who says, I have I have probable cause

03:01 - 03.886 who had there's no argument that didn't have time to do it.

03:01 - 06.655 There's no argument that he had consent.

03:01 - 11.260 Those are the only two possible exceptions to the search warrant requirement.

03:01 - 15.197 What if you had a statute that said, because you live in a house

03:01 - 18.300 that's taxed, you give up your Fourth Amendment rights, right?

03:01 - 20.202 You implied a consent.

03:01 - 22.071 That's to a search of the House.

03:01 - 24.240 That's a little different than this,

03:01 - 28.410 because it specifically says you give up your Fourth Amendment rights.

03:01 - 31.780 This said this was silent as to whether you needed anything

03:01 - 32.815 more than probable cause.

03:01 - 37.419 But on its face, it allows what the Supreme Court has said

03:01 - 38.654 is impermissible.

03:01 - 42.291 And I think this court has, has said as well, a search

03:01 - 45.661 without a search warrant, without some exception.

03:01 - 48.797 But here but here, the again, I mean, and that was the argument

03:01 - 52.601 that we put it on the table at the motion, put it here.

03:01 - 57.006 And this will be my I mean, because again, the posture of this is difficult.

03:02 - 03.345 Did the trial court here actually rule

03:02 - 07.917 that your client's constitutional rights were violated?

03:02 - 13.088 I think the trial court did rule that, implicitly, if not explicitly.

03:02 - 16.859 said what the comma which was to come, what would the trial court did?

03:02 - 22.064 And very clearly in effects, they laid out the fact that after

03:02 - 25.935 the accident, client was taken to the hospital of the trooper,

03:02 - 29.738 German came filled out the form so that the actual form.

03:02 - 32.474 It's exhibit one to the suppression hearing.

03:02 - 35.577 Fill out a form requesting the blood draw.

03:02 - 36.178 Right.

03:02 - 39.048 gives no reason why they couldn't have gotten a search warrant.

03:02 - 39.615 They couldn't have called

03:02 - 43.052 for a search warrant from the scene, or whatever, on that level.

03:02 - 47.723 following that, after that blood draw of the of the two vials,

03:02 - 50.960 they then get a search warrant not for the blood draw,

03:02 - 53.996 but just to seize the evidence and to test it.

03:02 - 55.998 That's the fruit of the poisonous tree.

03:02 - 00.469 That blood draw itself on its face was authorized by this statute.

03:03 - 03.973 And the statute that authorizes a search

03:03 - 07.843 of this kind with the invasion to the body, which is Burchfield.

03:03 - 10.546 remember, was only a a breath test.

03:03 - 13.515 You would need a search warrant, but because of the invasiveness,

03:03 - 15.384 you need a search warrant.

03:03 - 18.954 it's the Commonwealth's burden to show that there's some exception.

03:03 - 20.689 that have been mentioned.

03:03 - 21.824 Exigent circumstances.

03:03 - 23.792 They made no argument that it's services.

03:03 - 25.060 That issue was waived.

03:03 - 28.664 this court on many occasions has said both of the Commonwealth

03:03 - 29.965 and for the defense.

03:03 - 33.902 If you don't raise the argument below, you can't make it here,

03:03 - 38.107 that they now try to get around the clear, unconstitutional

03:03 - 41.944 the statute by saying, well, maybe it could have been exigent circumstances.

03:03 - 44.179 They presented no evidence of that.

03:03 - 48.017 and sure, they gave the background as to what happened,

03:03 - 51.120 but they didn't make the argument that was exigent circumstances.

03:03 - 52.988 Let's assume they made the argument.

03:03 - 57.159 Let's assume they said there were exigent circumstances,

03:03 - 00.696 and let's assume there are exigent circumstances.

03:04 - 06.001 Is the statute facially unconstitutional if it was applied in a constitutional way?

03:04 - 06.301 Here,

03:04 - 08.504 that the

03:04 - 11.874 statute, in our view, is still facially unconstitutional,

03:04 - 14.943 they may have a reason to say in this case, right,

03:04 - 19.681 because there was accident circumstances, or what if it was consent?

03:04 - 19.982 Right.

03:04 - 24.319 But what if what if the, you know, he was alive and consented?

03:04 - 27.222 the fact is, they went under the statute.

03:04 - 29.992 They didn't go under the statute as multiple things.

03:04 - 30.292 Right?

03:04 - 34.930 The statute, the statute compels, medical providers

03:04 - 38.100 who are otherwise only,

03:04 - 41.837 only authorized to provide medically necessary treatment.

03:04 - 45.574 It authorizes, if not compels you to, say, compel,

03:04 - 50.512 compels them to take blood for a non medically necessary purpose

03:04 - 54.183 and shields them from liability for doing so.

03:04 - 54.850 Correct.

03:04 - 59.955 My my question is if if the statute is followed

03:05 - 04.393 and the police officer presents probable cause and the person,

03:05 - 07.729 the person draws the blood, but the police officer also establishes

03:05 - 10.999 actions and circumstances, is the statute still unconstitutional?

03:05 - 14.203 I think it's malpractice, yes.

03:05 - 15.871 It operated the way it was supposed to.

03:05 - 17.673 The doctors did it?

03:05 - 18.841 Not medically necessary.

03:05 - 22.077 Blood test and gets civil immunity in that case.

03:05 - 25.114 The reason is that if there were exigent circumstances or consent,

03:05 - 29.051 and there's no record of this at all in this case, none whatsoever.

03:05 - 31.753 Trying to differentiate between this is whether it's should be faced. Right.

03:05 - 34.623 And there may be a case out there where they can show it.

03:05 - 38.494 That gives them an alternative grant to argue with the statute itself

03:05 - 41.830 by authorizing this type of invasion, it

03:05 - 44.099 violates both the Fourth Amendment and beyond that.

03:05 - 45.200 Article one, section eight.

03:05 - 48.504 I mean, I think the other side misreads or overreach.

03:05 - 51.540 Mitchell versus Wisconsin.

03:05 - 52.207 I mean, this court

03:05 - 55.911 on many situations have said we're talking about a personal invasion of liberty

03:05 - 58.413 with the Supreme Court has said in the best example

03:05 - 00.616 I can give you is the dog sniff cases, right.

03:06 - 03.619 With the US Supreme Court has said a dog sniff is not a search,

03:06 - 06.788 because have been only alert to, for for drugs.

03:06 - 09.791 This court rejected that and Commonwealth versus Morton.

03:06 - 13.795 at 30 years ago and said a dog sniff of a person

03:06 - 17.866 is not only a search in Pennsylvania, but you need for probable cause.

03:06 - 20.369 and you've got Alexander with cars.

03:06 - 23.372 I mean, you've differed from the US Supreme Court on many occasions

03:06 - 26.341 on, on this on this question of privacy.

03:06 - 29.478 And so you've got a statute here that authorizes,

03:06 - 32.614 with this court and the US Supreme Court has said you cannot do.

03:06 - 32.881 Well.

03:06 - 36.118 What's curious here to me, though, is, section

03:06 - 42.524 37, 55 wasn't even necessary in this case.

03:06 - 44.693 They didn't need this statute.

03:06 - 48.931 If the police officer just got no more and asked for the blood,

03:06 - 50.499 we wouldn't even be here.

03:06 - 52.401 And if they give. No, I agree with that.

03:06 - 55.704 And they give no reason why the officer didn't seek a warrant.

03:06 - 58.907 The thing about two officers on the scene, they could have called in and said,

03:06 - 00.442 somebody get a warrant. We've got enough here.

03:07 - 05.914 Our medical providers required to comply with to

03:07 - 08.250 to with police officer said a warrant to the blood

03:07 - 09.985 is an addressed to a particular medical provider.

03:07 - 12.988 Is that a court order directing the medical provider to take the blood?

03:07 - 14.389 Right.

03:07 - 15.891 I'm sorry I missed that.

03:07 - 19.127 That is a warrant to secure a blood sample

03:07 - 21.063 in order,

03:07 - 24.066 compelling any medical provider to take it.

03:07 - 25.267 I think it is.

03:07 - 28.270 I mean, that that, that, that, that that's directed to a particular right.

03:07 - 31.273 If this officer had gone to a judge,

03:07 - 35.077 gotten a search warrant, right, based on these facts

03:07 - 38.113 presented to the hospital, that's state action, right?

03:07 - 42.618 under this statute, the hospitals then compelled to do

03:07 - 46.788 the blood draw under this without 37, 55 either way.

03:07 - 50.792 Yeah, that's what I that's a I'm changing that from chief because I'm not sure

03:07 - 54.263 this I'm not sure there is anything that compels the absence of the statute

03:07 - 58.800 a, a physician or phlebotomist or whoever is authorized

03:07 - 02.304 by medical licensing in Pennsylvania to,

03:08 - 06.141 to take blood for a non-medical purpose.

03:08 - 08.677 And I'm not sure what I mean.

03:08 - 11.747 What what stops the doctor from saying, look, I'm not taking this blood.

03:08 - 12.881 It's not for medical purposes.

03:08 - 14.950 Bring your own phlebotomist in to come and take the blood.

03:08 - 16.351 But I'm not.

03:08 - 17.886 They may take the position.

03:08 - 20.889 I think once a judge issued a warrant, let's say

03:08 - 24.393 a judge issued a warrant to the hospital for a search of certain records.

03:08 - 24.893 Right.

03:08 - 28.230 based on some probable cause, that the hospital

03:08 - 32.067 has information relating to criminal activity of somebody else.

03:08 - 36.872 officer comes to the hospital and says we want to do what they say.

03:08 - 39.808 on the doctor here. I'm not letting in.

03:08 - 41.343 They can go in and grab.

03:08 - 43.779 I mean, the same way if you don't let somebody in your house,

03:08 - 48.216 it doesn't matter that it's a, the hospital or some other institution.

03:08 - 52.187 Once a judge issues the search warrant, then the officers have the power

03:08 - 52.721 to execute.

03:08 - 55.557 Doctor may say, go ahead, take the blood,

03:08 - 56.892 then. I'm not doing it.

03:08 - 57.192 Go ahead.

03:08 - 58.460 Here's here's the patient.

03:08 - 01.396 Draw the blood to the trooper.

03:09 - 04.599 You know, I, I don't think they would have refused in that kind of situation.

03:09 - 07.302 but, you know, you'd have to deal with at that point.

03:09 - 11.907 The the problem is in this case, there was an established process in this hospital.

03:09 - 15.377 They've got a form, that they use that they must have agreed to,

03:09 - 19.314 which this officer filled out again, it's exhibit one in the suppression hearing.

03:09 - 22.617 it's a form, that he requested.

03:09 - 24.186 And the hospital gives the blood.

03:09 - 26.154 I don't know if any hospital in Pennsylvania that wouldn't.

03:09 - 28.190 And they

03:09 - 31.193 proceeded under the statute that's at issue here.

03:09 - 33.362 Absolutely. It's completely under the statute.

03:09 - 33.962 And when they

03:09 - 37.366 had the opportunity in the trial court to make any of these arguments.

03:09 - 39.901 None. And they've got the burden under 582.

03:09 - 41.370 That's that's why they beat that burden.

03:09 - 44.573 I understand your point about the facial unconstitutionality.

03:09 - 48.410 We put that on the table and said this statute authorizes,

03:09 - 52.714 law enforcement to proceed in a way that's completely contrary

03:09 - 55.717 to the Fourth Amendment on McNealy and Burchfield.

03:09 - 59.221 and, of course, you know, the Jones Williams case you had before where

03:09 - 03.024 the court was split on that, that was because the evidence was clear

03:10 - 06.495 in that case that the blood had been drawn by the hospital,

03:10 - 10.098 and that was the blood that was tested and therefore the court.

03:10 - 11.233 It was three, three.

03:10 - 15.604 Anyway, it on a lot of these issues, but that's the distinct difference.

03:10 - 17.072 And this trial judge got it right.

03:10 - 21.843 He said this case is clear that the blood that was drawn, the two vials

03:10 - 24.012 gotten by the

03:10 - 27.649 search warrant after the blood draw, the warrantless would blood draw.

03:10 - 29.451 That's the direct route here.

03:10 - 32.387 And and that those second warrants are the as

03:10 - 35.390 I say, the fruit of the poisonous tree of this of this matter.

03:10 - 38.760 so I think on the table for this, for this court and you and you listed

03:10 - 42.397 in your, in your disposition order on, on oral argument,

03:10 - 46.501 did the judge properly reach the question of,

03:10 - 49.671 facial unconstitutionally,

03:10 - 52.707 unconstitutionality and is it facially unconstitutional?

03:10 - 56.311 Shall, we submit that the court got it specifically right.

03:10 - 00.449 And and beyond that, the prosecution, the Commonwealth failed to,

03:11 - 04.953 show any other grounds, any other grounds, consent,

03:11 - 08.557 exigent circumstances, impossibility, whatever you want to call it.

03:11 - 11.993 for this warrantless action.

03:11 - 14.763 Well, they might have had them. They didn't show them.

03:11 - 19.000 While they might have had other grounds, they did not demonstrate hypothetically.

03:11 - 19.868 Maybe they did.

03:11 - 22.337 But, you know, I I've never seen a case where this court

03:11 - 24.940 said, well, hypothetically, you had it in the evidence in there.

03:11 - 26.408 We don't usually say that.

03:11 - 28.477 We'll, we'll we'll go ahead and do it. All right.

03:11 - 29.678 Any other questions?

03:11 - 31.780 I mean, a very strict rule on both sides.

03:11 - 33.682 So I've read your cases on waiver.

03:11 - 35.750 I believe they and I and I teach this stuff.

03:11 - 37.319 I said raise it.

03:11 - 38.386 Raise it again.

03:11 - 42.057 Raise it again because the court's not going to hear you raise, you know,

03:11 - 45.360 I'll I'll say no more.

03:11 - 47.762 All right. Thank you both very much.

03:11 - 49.831 The last case is Pig

03:11 - 53.735 Nettie versus Commonwealth of Pennsylvania Department of Transportation.

03:11 - 55.770 This is an eminent domain case.

03:11 - 01.676 Eminent domain is the situation when the government needs to use

03:12 - 07.916 the property that you own for usually to put in a road, or to build a building.

03:12 - 14.389 And what they do is they basically do what's called a, declaration of taking,

03:12 - 15.891 which is where the government says

03:12 - 19.094 we're going to take your land and then they compensate you.

03:12 - 22.931 this case is going not necessarily involved

03:12 - 25.800 whether or not they're allowed to take the land,

03:12 - 29.337 but it's dealing with the damages or the compensation

03:12 - 32.707 that the feds who own the land would receive.

03:12 - 36.778 In this case, they own two parcels of land that were close to each other

03:12 - 40.315 and, under the eminent domain code,

03:12 - 44.419 if your land is if you have two parcels of property

03:12 - 47.722 that are unified together,

03:12 - 51.326 you're going to most likely end up with more compensation

03:12 - 56.731 than if you had two separate parcels that are being, evaluated separately

03:12 - 01.002 in this case, the pig, Nettie, said that their parcels,

03:13 - 05.006 which are going to be known in the case as parcels 44

03:13 - 10.879 and 45, were used together for a unified purpose under section

03:13 - 16.051 705 of the eminent Domain Code, which was enacted in 1964

03:13 - 21.590 under the section 705 of the Eminent Domain Code.

03:13 - 26.394 If you're able to show that the light that the two parcels of property

03:13 - 29.965 were used by a unified for a unified purpose,

03:13 - 34.703 then you, can recover that compensation

03:13 - 37.973 based on the two,

03:13 - 40.742 properties being considered together.

03:13 - 43.011 If you couldn't, then their shepherd.

03:13 - 46.915 However, one of the issues and the main issue in

03:13 - 50.919 the case is going to be the old law, which really wasn't a law.

03:13 - 54.556 It was defined in statute prior to 1964,

03:13 - 58.093 which said that it was almost a stricter standard,

03:13 - 01.096 that other than showing there was a unified purpose

03:14 - 05.433 under the new law, that you had to show that the that the,

03:14 - 08.236 two properties were

03:14 - 11.873 so inseparably connected by use

03:14 - 16.511 that to separate them would be unfair and injure the person.

03:14 - 22.350 So what happened here in the trial court was the trial court found that under

03:14 - 25.553 section 705, the penalties had shown

03:14 - 28.790 that there was this unified purpose.

03:14 - 34.195 the case, went up to the Commonwealth Court and the Commonwealth Court reversed.

03:14 - 38.533 What the Commonwealth Court said was that really,

03:14 - 41.870 not only did they have to show under section 705

03:14 - 46.441 that there was the, unified purpose

03:14 - 50.612 of being used, but also the old requirement under pre

03:14 - 56.418 1964 case law, which had never been overturned, that you also had to show

03:14 - 00.889 the inseparable connection of the of the two properties together.

03:15 - 04.592 Panetti appealed and the Supreme Court accepted it.

03:15 - 09.831 And what they're going to be looking at is whether the Commonwealth Court aired,

03:15 - 14.669 when it added the requirement of showing

03:15 - 19.941 the inseparably connected requirement, even though that's in not in 19.

03:15 - 23.878 I mean, in section 705 of the eminent domain code,

03:15 - 27.916 and also whether the Commonwealth Court aired

03:15 - 31.286 when it did not find in favor the penalties

03:15 - 34.522 if they showed that there was a unified purpose.

03:15 - 36.991 so let's go to the courtroom,

03:15 - 39.461 if I may.

03:15 - 41.262 Please, please the court.

03:15 - 46.201 Chief Justice Todd and justices I represent, the penalties

03:15 - 51.306 the appellants, condominiums and former property owners in this matter.

03:15 - 53.842 the issue in this appeal,

03:15 - 57.278 specifically, is whether the two parcels condemned by PennDOT

03:15 - 01.649 should be valued together pursuant to section 705 of the eminent domain code.

03:16 - 04.986 The penalties were the record owners of the two parcels.

03:16 - 09.090 As such, since the property was taken, they're entitled to just compensation.

03:16 - 12.627 Property was located in the Fishtown section of Philadelphia,

03:16 - 16.197 although that was not technically contiguous at some.

03:16 - 19.534 At one point it is only separated by 5 to 10ft.

03:16 - 23.471 as Chief Justice Todd said,

03:16 - 27.242 it was used for storage for the genetic,

03:16 - 32.213 electrical business of trucks and, equipment and other things.

03:16 - 36.451 And as both the trial court and the Commonwealth Court both found,

03:16 - 41.322 the condominiums use the parcels for the same use and purpose of

03:16 - 42.757 both courts said that

03:16 - 45.426 now courts have recognized

03:16 - 48.930 that properties may be worth together more than they are separately.

03:16 - 53.701 In fact, PennDOT own manual references this that it gives two appraisers.

03:16 - 57.305 It's referred sometimes as pilotage or assemblage,

03:16 - 01.442 and the purpose of 705 and the design of 705

03:17 - 06.815 is to ensure that just compensation considers that fact in appropriate cases.

03:17 - 09.317 This is one of those cases.

03:17 - 12.420 Section 705 language is clear

03:17 - 15.690 and unambiguous and is met here.

03:17 - 19.227 There are two and only two requirements

03:17 - 22.230 of 705 for noncontiguous properties.

03:17 - 25.600 705 says that noncontiguous

03:17 - 29.404 parcels shall be valued together

03:17 - 32.740 if one they have substantially identical ownership,

03:17 - 36.211 and two they're used together for a unified purpose.

03:17 - 39.948 As the trial court found, both elements are satisfied here.

03:17 - 45.787 and unfortunately, the Commonwealth Court added a new requirement,

03:17 - 50.258 which I'll get to in a second regarding the use issue, and I will

03:17 - 53.628 therefore, start with that issue.

03:17 - 56.998 As now stated for the third time, there was no question

03:17 - 59.100 that they were used together for the same purpose.

03:17 - 03.371 They were used for the electrical business, not the same purpose.

03:18 - 04.806 It's a unified purpose, I think.

03:18 - 08.776 705 if you look at the 1964 amendments, the seven apply it

03:18 - 12.013 specifically references the case of Morris versus Commonwealth right.

03:18 - 14.682 And that was where the unified purpose comes in.

03:18 - 18.753 Not saying it's essentially single use and it's got to be a unified purpose.

03:18 - 20.054 That was a holding Morris.

03:18 - 20.588 Right?

03:18 - 23.591 Yeah.

03:18 - 25.293 The storage of vehicle

03:18 - 28.263 unified for purposes of valuation.

03:18 - 31.532 Let me address Morris, because I don't believe that's

03:18 - 35.303 necessarily inaccurate, even though that's what the court, the Common Court said.

03:18 - 38.306 I don't believe it properly applied. Morris.

03:18 - 41.376 so I'm going to get into the weeds a little bit, if that's okay.

03:18 - 42.243 I believe.

03:18 - 42.777 Okay.

03:18 - 44.145 Well, here we go.

03:18 - 46.447 Morris is a very short case.

03:18 - 48.483 It's a pre-Code case.

03:18 - 49.884 It was established in 19.

03:18 - 53.588 It was, issued by this court in 1951 before the code.

03:18 - 58.293 And, therefore did not consider 705

03:18 - 02.430 as the court said, it was referenced in the comment section.

03:19 - 06.301 I respectfully submit that the only reason of references is to

03:19 - 10.171 establish is to reference the concept, and not the actual words

03:19 - 13.141 as applied by the Commonwealth Court below.

03:19 - 16.411 So here's what Ma said, and here's what it didn't say.

03:19 - 18.813 First of all, the Commonwealth Court,

03:19 - 21.349 as I said, it's a very short case.

03:19 - 23.418 There's only three paragraphs that matter.

03:19 - 28.156 The first paragraph is the, the one that the Commonwealth Court cited to

03:19 - 32.226 which cites the consular case.

03:19 - 36.130 That is what specifically the Commonwealth Court address is said.

03:19 - 37.966 See, this is what the test is.

03:19 - 40.468 And it's quoting Coster.

03:19 - 42.136 That was not the holding Amar's.

03:19 - 45.540 If you read the the opinion, it says that the appellant

03:19 - 48.576 raised Cussler and it wasn't applicable there.

03:19 - 53.348 It specifically said that Cussler was a applicable

03:19 - 56.651 and therefore that is not the law of Mars.

03:19 - 58.553 So that's number one.

03:19 - 01.756 Number two, if you continue to follow it down,

03:20 - 05.026 it says.

03:20 - 12.333 References a Montana case

03:20 - 15.503 in which that Montana case, which it said was basically

03:20 - 17.839 what what courts around the country are saying

03:20 - 20.541 and that says if they're used together as a single enterprise

03:20 - 25.046 and the whole is depreciated in value as a result of the taking, damages suffered

03:20 - 26.914 thereby may be compensated.

03:20 - 29.650 Where lands are separately connected in use,

03:20 - 33.221 the injured to one must necessarily and permanently injured the other.

03:20 - 37.392 What that means is that if you've got properties

03:20 - 41.162 that are used together in the same use, if you take one away,

03:20 - 45.666 the injury to one must necessarily and permanently injure the other.

03:20 - 49.504 That that is the the effect of taking it and you don't.

03:20 - 53.307 So what you focus on is the use and not the impact.

03:20 - 56.244 It was the impact that the Commonwealth Court focused on.

03:20 - 57.678 But most importantly

03:20 - 00.181 is the next paragraph.

03:21 - 03.151 That is where the Mars court

03:21 - 06.421 issued its holding and the Mars court said

03:21 - 09.724 unambiguously, again, the important element

03:21 - 14.095 is the entire entirety of use of the separate tracks.

03:21 - 19.700 In that case, all three tracks tracks were used as a unit where that is.

03:21 - 23.004 So the injury to one tract is reflected as a consequent

03:21 - 25.907 in injury to the entire enterprise.

03:21 - 27.708 Again, no analysis of impact.

03:21 - 29.510 It's the use here.

03:21 - 34.982 It's clear that the parcels were used together as a unit.

03:21 - 35.817 As Mr.

03:21 - 39.220 Pinion specifically testified, they were used for his business.

03:21 - 40.455 They were needed for his.

03:21 - 41.289 He specifically said

03:21 - 44.392 they were needed for his business and that he needed both of them.

03:21 - 48.229 So why were they needed

03:21 - 51.566 for storage if I take away his storage?

03:21 - 53.568 On one occasion, he stores property.

03:21 - 55.470 So not necessarily first of all.

03:21 - 57.972 And second of all, that's a damage issue.

03:21 - 02.243 Yes. No. Yes.

03:22 - 04.278 These are used for storage in my truck.

03:22 - 04.879 Right.

03:22 - 07.548 One car and you're still using the other one for trucks.

03:22 - 10.384 Right? Right. But not all the trucks. Right.

03:22 - 13.387 So how is that a continuous use?

03:22 - 16.624 Because they're both used for the same unified purpose.

03:22 - 20.761 The unified purpose is the test, and the only tests

03:22 - 22.196 are dependent on each other.

03:22 - 24.699 They're just yeah, they are.

03:22 - 27.368 No I disagree there are if

03:22 - 30.104 maybe I can I see it a little differently.

03:22 - 31.739 Assume that Mr.

03:22 - 36.077 Panetti has, eight large utility vehicles,

03:22 - 40.681 and he uses both plots for parking purposes,

03:22 - 44.385 because otherwise that area in Fishtown under I-95

03:22 - 48.189 is a highly gentrified area for which there is no parking.

03:22 - 48.890 Right.

03:22 - 52.059 So if one was confiscated, he would be unable

03:22 - 55.563 to have the unified purposes that he has a protected area

03:22 - 59.400 where he can store his personal property or business property.

03:22 - 04.739 But by the confiscation of one, he's now left without parking for his four

03:23 - 08.776 utility vehicles, subject to ticket damage.

03:23 - 10.011 Whatever. Right.

03:23 - 12.947 And that is that is exactly what I believe.

03:23 - 13.614 Mark says.

03:23 - 17.151 If they're used as a unit together, if you lose one of the

03:23 - 20.421 in that case the tree tracks, you necessarily injure it.

03:23 - 23.891 And is that the injury that he's claiming or that's the continued use

03:23 - 26.327 so he can store his electrical equipment.

03:23 - 27.228 Correct.

03:23 - 30.031 And confused because I thought Morris talked

03:23 - 33.901 about the injury to one constituting an injury to the other,

03:23 - 38.573 not in the analysis and not in its holding.

03:23 - 40.908 What? It's what it does. Say it though.

03:23 - 45.246 What it says is that if you lose one, not in the portion

03:23 - 49.217 that is cited by the Commonwealth Court, I'm looking at the case itself.

03:23 - 49.784 Okay.

03:23 - 53.487 So if you go to the bottom of the,

03:23 - 57.692 the column where I've got it, it's,

03:23 - 01.696 under four, one four, seven, six for those pages and go to the bottom.

03:24 - 04.465 It says it's, it's sort of midway through.

03:24 - 07.468 If they're used together as a single enterprise,

03:24 - 11.239 damages suffered thereby may be compensated.

03:24 - 13.975 Where lands are inseparably connected in use, the injury

03:24 - 17.144 to one must necessarily and permanently injury the other.

03:24 - 18.212 That's what I'm referred.

03:24 - 19.447 And what I believe that means

03:24 - 23.384 is exactly what Justice Dani said, which is that doctor said, which is that

03:24 - 27.655 if you if you need both and you lose one, you necessary leave

03:24 - 30.291 a price on one property.

03:24 - 30.825 That's right.

03:24 - 34.228 That property's injured because you're losing your professional equipment,

03:24 - 37.965 as I say, and you're not required to prove anything more other than the fact that,

03:24 - 42.370 as it says here in the next paragraph, Chief Justice Todd, that

03:24 - 46.707 the important element governing the basis for determination of damages,

03:24 - 51.145 in where noncontiguous tracks are involved,

03:24 - 55.349 in addition to proximity, is the entirety of the use.

03:24 - 59.353 It's the use argument apply to any particular tracks.

03:24 - 02.356 If I've got a particular track of land that I use to store

03:25 - 06.060 my electrical vehicles under I-95 and Fishtown,

03:25 - 09.330 and I've got another one in Wayne, Pennsylvania,

03:25 - 12.733 that's all I could in your argument equally apply.

03:25 - 14.935 Well, I can't park the ones in Fishtown any more.

03:25 - 16.604 Therefore, you owe me for the one in Wayne.

03:25 - 19.974 So the law actually addresses that specifically.

03:25 - 20.675 And it's not here.

03:25 - 23.411 There's a proximity, requirement.

03:25 - 26.414 And it's not teed up here necessarily that it was raised.

03:25 - 29.950 It's been a little bit of a shifting argument by PennDOT over time.

03:25 - 33.120 But initially that was one of their arguments was there's a proximity.

03:25 - 35.289 Are they have to be proximate to each other here?

03:25 - 36.624 They're less than a mile.

03:25 - 39.560 They'll certainly the two are within ten feet of each other.

03:25 - 40.094 And they were less

03:25 - 43.497 than a mile to the other point right near the, the music, the Fillmore.

03:25 - 44.899 Yes. Right nearby.

03:25 - 47.468 That's right. Right back. I don't know exactly. Exactly.

03:25 - 50.838 So that would be solved by the proximity issue

03:25 - 55.576 until I just historically gave you a perfect setup.

03:25 - 56.010 Right.

03:25 - 59.246 And I agree with what Justice Daugherty said.

03:25 - 59.780 Right.

03:25 - 06.287 You have a tractor trailer that requires either the width or the depth

03:26 - 11.258 of both of the partials in order to allow parking to take place there.

03:26 - 17.331 And so if you lose one, you lose the ability of using the other lot

03:26 - 20.468 because one without the other is useless to you,

03:26 - 23.804 because one law will not allow you

03:26 - 26.807 to park your oversize tractor trailer.

03:26 - 29.610 That's not my understanding of the evidence in this case.

03:26 - 34.915 My understanding of the evidence in this case is that there was no evidence

03:26 - 39.854 addressing implications of losing one parcel or the other, or,

03:26 - 43.290 on the continuity of the electrical business.

03:26 - 43.557 Right.

03:26 - 46.660 This is this situation, as I see it, is

03:26 - 51.332 you have trucks or vans or whatever they are,

03:26 - 55.302 some of which are parked in one parcel, the other of which are parked

03:26 - 56.670 on another parcel.

03:26 - 00.474 If you lose one, you could still use the other for parking.

03:27 - 02.476 The other vehicles.

03:27 - 06.113 That's the difference between what Justice Daugherty described

03:27 - 09.950 and what my understanding is of what we have here.

03:27 - 13.020 I agree with you factually, but not legally.

03:27 - 16.290 I agree with you factually, legally, that is not the test.

03:27 - 19.293 Test is not the damage to the other.

03:27 - 22.029 Nowhere in 705 does

03:27 - 25.533 it address has to say you have to prove the impact right.

03:27 - 28.736 But it says a unified purpose, right?

03:27 - 34.241 Not the same purpose because the General Assembly knew how to use the word same.

03:27 - 41.182 They used it in the preceding, part, which says,

03:27 - 45.252 the same, substantially the same ownership.

03:27 - 48.422 It then goes on to say which are used together

03:27 - 51.258 for a unified purpose, not the same purpose.

03:27 - 52.226 Right. Unit.

03:27 - 57.398 So the two parcels of land had to be unified in the purpose in justice.

03:27 - 02.169 Socrates example is your parking oversize tractor trailers

03:28 - 06.040 that that absolutely requires utilization

03:28 - 09.043 of the to continue and contiguous lots.

03:28 - 11.045 That's a unified purpose.

03:28 - 12.613 That's not what we have here.

03:28 - 15.249 again, I well I disagree with that factually.

03:28 - 15.683 Okay.

03:28 - 21.021 they were used for a unified purpose, depending on your definition of unified.

03:28 - 24.225 If you take, for example, what Morris said,

03:28 - 27.294 which is if they're used in as a unit. Okay.

03:28 - 31.232 If you say that that's what unified means they were used as a unit.

03:28 - 36.570 They were both integral in the operation of the electrical business.

03:28 - 39.640 They were both needed, you know, could they have been replaced?

03:28 - 41.175 Maybe.

03:28 - 43.644 But but that's not the issue.

03:28 - 45.212 The issue is how are they actually used

03:28 - 48.415 and what was the purpose for which they were use and they were used.

03:28 - 49.250 Make sense?

03:28 - 51.952 I mean, then it's not a unified purpose.

03:28 - 55.189 Let's say that the contiguous lots were used.

03:28 - 58.058 One of them was used for parking.

03:28 - 59.727 and then you

03:28 - 02.997 skip over to the other lot and that's used for storage.

03:29 - 07.535 That's in no way, shape or form a unified purpose

03:29 - 10.771 under two different purposes.

03:29 - 14.108 One is for parking, one is for storage for the same business.

03:29 - 15.976 What difference does it make?

03:29 - 17.211 Same difference or not?

03:29 - 18.812 I mean, they're they're just

03:29 - 23.217 they're totally different uses, let alone a unified purpose.

03:29 - 23.884 Sure.

03:29 - 27.321 So in for example, the,

03:29 - 30.925 Marsh case, they were used for a form

03:29 - 35.796 and their form use different components.

03:29 - 40.034 So to your analogy, one would be for parking and one would be for storage.

03:29 - 42.469 But they were both are support the form now.

03:29 - 46.440 But the one in the Marsh case is exactly what Judge Donahue's talking about.

03:29 - 48.676 The Morris case, the track that was being taken

03:29 - 51.779 was it's a dairy farm and there were sheep and cows.

03:29 - 54.915 The one track that was being taken had the stream through it.

03:29 - 56.517 So when they took that tract

03:29 - 59.520 and the sheep and the farm could no longer access to water,

03:29 - 02.990 they said, well, you can no longer use it as he as a sheep and dairy farm,

03:30 - 04.725 because they have no more access to water.

03:30 - 07.695 Therefore it's an interdependence of use.

03:30 - 11.365 In other words, the use of the the grazing pasture is

03:30 - 14.969 directly dependent upon the water access

03:30 - 17.972 which is being taken away, so you can no longer use them.

03:30 - 19.173 In this particular case,

03:30 - 23.010 if we take the one, you can still store your vehicles on the other, right?

03:30 - 26.013 But you may not be able to support the stand you mentioned,

03:30 - 29.416 but you may not be able to support the business and what the

03:30 - 33.854 Morris Court is saying, which I think is a correct way to look at it, is

03:30 - 38.092 if you have tracks that are used together and you take 1

03:30 - 42.663 or 2 away, you have necessarily injured the entire enterprise.

03:30 - 43.163 You know, Mr.

03:30 - 46.166 Snyder, the more you talk, the more you're convincing me.

03:30 - 49.370 I I'm starting to see it's very typical.

03:30 - 52.473 It's it's very difficult if you have a business and

03:30 - 57.611 maybe your business relies on having easy access to all of your parked vehicles

03:30 - 02.483 and having access that your employees can go out of door

03:31 - 03.917 and have them all right there.

03:31 - 05.853 Maybe that is injury to the other,

03:31 - 08.922 as if it's injury to one if they're not together, right.

03:31 - 12.893 And I think it's a lot frankly, I think it's a very low threshold now

03:31 - 16.130 down the road, when you get to the board of you

03:31 - 19.800 and the trial, you're going to have to prove what the amount of it.

03:31 - 23.070 But this is just simply a ticket to say

03:31 - 26.206 you have to value these two together, counsel.

03:31 - 29.309 And I think that's important because we have to think down the road

03:31 - 31.278 of how this is going to work.

03:31 - 33.047 Are you

03:31 - 37.017 saying that these two properties, these two noncontiguous properties,

03:31 - 40.020 which at one point in time were one block correct?

03:31 - 42.890 No, I thought I thought that there was an earlier taking.

03:31 - 45.259 Now the city actually owned that.

03:31 - 46.493 They're all irregularly shaped.

03:31 - 50.731 I didn't mean to inject something confusing, but, are you suggesting

03:31 - 55.502 that when this goes to the board of view, that the valuation

03:31 - 00.841 of these now together for a unified purpose, lots

03:32 - 04.812 includes this third lot somewhere where the business is located?

03:32 - 07.314 No, just the two that were taken.

03:32 - 12.553 Then how how do you how do you possibly litigate

03:32 - 17.825 that valuation without considering the impact of losing one?

03:32 - 20.060 Well, the business sure.

03:32 - 21.028 Because you can't

03:32 - 21.662 you can't

03:32 - 24.231 you can't value the impact of losing it to the other

03:32 - 26.633 because you're keep every time, every justice ask you that question.

03:32 - 28.702 You keep going back to the impact of the business, which is a lot.

03:32 - 30.537 We're not even talking about. Right.

03:32 - 31.638 So how do you do that?

03:32 - 35.576 So first of all, again, if you look at the the

03:32 - 41.415 the clear wording is was it used together at that time for a unified purpose.

03:32 - 42.716 Right at that time.

03:32 - 45.319 Now you may, as I think,

03:32 - 48.322 maybe either Justice Daugherty Mr.

03:32 - 51.725 Justice McCaffery said Fishtown section is going nuts right now

03:32 - 55.329 in terms of of development, you could change the highest and best use.

03:32 - 57.197 I'm not suggesting you would or you wouldn't.

03:32 - 01.235 All I'm saying is that the section requires,

03:33 - 04.872 if you check the boxes, which we do here,

03:33 - 08.242 that they have to be valued as one.

03:33 - 10.410 Now, if a, if a,

03:33 - 14.548 if permanent wants to come in later and say, and I know Judge Roberts

03:33 - 17.785 and you know this from your time in the Commonwealth court, that it

03:33 - 22.356 that if, it's, you know, excess land

03:33 - 26.360 or surplus land or something else and therefore it's got a de minimis value.

03:33 - 28.862 Okay, we'll fight that out later.

03:33 - 31.765 But for now, the only question is,

03:33 - 35.869 do you check the boxes of the clear worthy and the clear wording?

03:33 - 38.038 I guess we're focusing on the word unified.

03:33 - 40.641 Well, I, I I'm not going to belabor the argument,

03:33 - 43.644 but I, I actually think the your a bigger issue was the word together.

03:33 - 46.446 But that's okay

03:33 - 49.616 I, I think I think you could arguably say it was unified

03:33 - 52.553 in the sense that they both used it for the same purpose. Right.

03:33 - 55.689 The question of the togetherness, to me is kind

03:33 - 00.360 of the issue is did they actually were they together

03:34 - 03.897 or were they separately doing the same purpose?

03:34 - 05.232 Like what?

03:34 - 06.366 What was the okay.

03:34 - 08.402 What was the creating of the togetherness?

03:34 - 10.237 I guess that's really what it but but I don't want to

03:34 - 13.574 I don't want to, but I want to I just want I've been a little off of.

03:34 - 19.313 So, you know, I just want to raise 1 or 2 other things before I move on.

03:34 - 22.382 And of course, answer any of the questions the court has.

03:34 - 24.017 But I just want to raise one more.

03:34 - 28.689 One other issue when it comes to the applicability of Morris, the

03:34 - 32.726 I think it has to be read in conjunction with Warner,

03:34 - 36.230 which is the only other, Supreme Court case that's addressed here.

03:34 - 37.865 And what's interesting about Warner

03:34 - 41.401 is although it was decided just after the adoption of the code,

03:34 - 44.705 it was really was a pre code case because it was filed before the code.

03:34 - 48.342 And it goes through a little bit of an analysis and it says

03:34 - 53.013 and of course it cites to Mars and what it says is

03:34 - 56.750 that we're not going to address the issue

03:34 - 01.188 because the record wasn't properly preserved.

03:35 - 04.491 But the most interesting part of Warner is it says,

03:35 - 07.828 quote, the doctrine is still in its infancy now cites tomorrow.

03:35 - 09.429 So this is after Morris.

03:35 - 11.932 It says the doctrine is still in its infancy,

03:35 - 14.735 and the outlines of the doctrine have not been spelled out.

03:35 - 19.406 So Werner saying, okay, we got Morris and we may have some other cases,

03:35 - 21.909 but we're not quite sure what this thing really means yet.

03:35 - 26.613 I think it was answered by the, the, the, the General Assembly when it enacted.

03:35 - 31.018 705 so to the extent that you're looking at, you know,

03:35 - 34.254 who's right here, for lack of a better way of saying it,

03:35 - 37.891 if you look at the plain wording of 705 and, and maybe we're

03:35 - 41.295 we have different definitions of things that were going around, around on,

03:35 - 43.397 on words. But I think that

03:35 - 46.400 in my opinion, the reading of it

03:35 - 52.272 is that 7 or 5 replaces anything before it, number one and number two

03:35 - 57.277 that you have to just, check the boxes, which I think, happened here.

03:35 - 00.480 I will also say one other thing before I move on.

03:36 - 05.852 courts have specifically said

03:36 - 10.924 in many contexts, in essence, the that the cases the statute should be

03:36 - 15.796 liberally construed for condemnation in this case for the property owner.

03:36 - 20.400 And in this case, they explain that the purpose of section 705

03:36 - 24.471 is that the economies receive just compensation, and that therefore

03:36 - 29.209 it must be liberally construed to affect its object and produce a just result.

03:36 - 32.913 I don't under any way you look at it, I don't think it's at all,

03:36 - 37.050 possible that someone would have caught come in here

03:36 - 40.053 and bought one without the other, they would have bought them together.

03:36 - 43.056 And as a result, if you're trying to say what would have happened in real life,

03:36 - 43.523 what is it?

03:36 - 45.258 Just compensation here.

03:36 - 47.761 They have to be valued together.

03:36 - 50.397 So unless there's any other questions on that, I'll just

03:36 - 53.467 very briefly get to the substantial to the ownership.

03:36 - 57.471 Yes. A record that says no one would have bought these separately.

03:36 - 58.705 No. Okay.

03:37 - 09.716 The what is on the record is that there was discussions

03:37 - 12.719 at one point of developing this that got forwarded

03:37 - 16.289 because of the threat of the taking and that they actually had put

03:37 - 20.160 some, plans together to, to, to develop it.

03:37 - 23.296 and they would have been just like that

03:37 - 26.299 one would have been assuming would have happened.

03:37 - 29.469 one would have been for some kind of residential development,

03:37 - 30.804 and the other would have been for parking.

03:37 - 34.674 So, briefly on the identical ownership,

03:37 - 37.744 first of all, Commonwealth Court chose not to address this.

03:37 - 41.882 it was just addressed by the, trial court.

03:37 - 45.519 it's undisputed that economies were the sole record owners

03:37 - 48.522 of the parcels that they paid the taxes here.

03:37 - 51.491 Now, PennDOT claims in that it has

03:37 - 57.097 an unrecorded easement over parcel 45, precluding the application of 705,

03:37 - 00.567 as the trial court said, PennDOT fell

03:38 - 05.105 therewere its words, woefully short in proving that it had that interest.

03:38 - 09.209 Now, first of all, PennDOT admits it can't produce a document establishing

03:38 - 11.778 the ownership. The alleged ownership.

03:38 - 15.115 there's no declaration of taking, there's no deed,

03:38 - 18.552 there's nothing else that conveys what it claims is an easement.

03:38 - 21.555 Right. to the property.

03:38 - 24.558 Instead, it cites highway plans

03:38 - 28.795 from 1966 and the 2010 deed.

03:38 - 30.597 Neither creates a property interest.

03:38 - 34.501 The plans are just that plans.

03:38 - 36.536 They don't create interests.

03:38 - 38.038 They're just plants.

03:38 - 41.041 So that and they don't allege that in any of their briefs,

03:38 - 43.844 that that created an interest.

03:38 - 49.149 Similarly, the deed doesn't say that there's an easement.

03:38 - 52.586 It doesn't say subject to an easement, that instead

03:38 - 55.622 there are times when it references the Delaware Expressway.

03:38 - 59.626 But it's merely and right away lines merely because,

03:38 - 02.762 it's using information valid description to see what

03:39 - 05.732 the outline is. Now,

03:39 - 09.469 even if PennDOT has some kind of, easement rights,

03:39 - 13.640 it has the burden to prove that these rights preclude application of.

03:39 - 18.745 705 since they can't prove the nature of the alleged interest

03:39 - 21.748 other than them saying, take my word for it.

03:39 - 24.818 they they don't meet their burden.

03:39 - 28.388 Section 705 does not require exact

03:39 - 32.959 identical ownership, only substantially identical ownership.

03:39 - 36.763 And it was amended in, in 2006,

03:39 - 41.868 to add that to give flexibility to, the courts,

03:39 - 45.305 when addressing this issue in this case,

03:39 - 48.308 the only one that owned the parcels where the condominiums,

03:39 - 53.313 they're the record owner and there's no recorded document, of any interest.

03:39 - 55.148 What PennDOT,

03:39 - 58.084 even if they have an easement, that doesn't mean they have an ownership

03:39 - 59.319 interest in the property.

03:39 - 02.522 It means they have easement rights to use part of the property.

03:40 - 04.991 And those are two distinct issues.

03:40 - 09.496 Also, even if they have that easement, it doesn't mean that it defeats

03:40 - 13.099 the substantial own, portion,

03:40 - 17.037 at at most what they have claimed below.

03:40 - 20.273 Although again, it's a little bit of shifting ground that they have

03:40 - 24.611 aerial easement which permits parking.

03:40 - 28.782 that would not defeat either the current use, the then car

03:40 - 32.752 use or any other future use to the extent that it would have parking.

03:40 - 34.821 And PennDOT has said we're good with that.

03:40 - 38.058 We're going to allow people to use the property other than where

03:40 - 41.061 the actual, cement is.

03:40 - 44.864 and then lastly, I want to say that

03:40 - 49.102 if you were to believe and accept their argument

03:40 - 54.941 that these easement rights defeated it, it would leave lead to absurd results.

03:40 - 57.877 There are any

03:40 - 00.880 number of properties that have easements on their property,

03:41 - 04.451 whether it's a utility easement or some other kind of easement.

03:41 - 09.289 That would mean that every single time that that, you know, the electric company

03:41 - 12.993 came in and got an easement for lines, you could never apply.

03:41 - 15.228 705 that was not the intent.

03:41 - 17.264 It's substantially identical.

03:41 - 20.133 And it's clearly met here.

03:41 - 22.869 as the trial court found.

03:41 - 24.204 All right. Thank you.

03:41 - 25.438 Thank you.

03:41 - 25.605 There.

03:41 - 26.439 Let's hear from Mr.

03:41 - 29.442 Boyer.

03:41 - 34.981 We always like to close court with an eminent domain argument.

03:41 - 37.384 Don't we? All?

03:41 - 40.053 Madam Chief Justice may please the court.

03:41 - 43.290 Jacob Boyer, I'm back of the Department of Transportation.

03:41 - 47.527 I would like to begin with questions that if, Your Honor,

03:41 - 50.964 Madam Justice and Justice perhaps were asking about the electric business,

03:41 - 52.198 and it's important here.

03:41 - 55.402 I believe Your Honor said you were persuaded by some of the relevance there.