00:03 - Who we create

00:05 - all of our offices.

00:08 - We work with the business.

00:10 - Something out there.

00:11 - And God created the whole.

00:18 - Good morning, everyone.

00:21 - Welcome to the second day of our fall

00:23 - argument session here in Philadelphia.

00:27 - Today is September 11th,

00:29 - and I'm sure that most of us who are old enough

00:33 - can recall exactly where we were on that tragic day in 2001.

00:38 - I was on the bench in our courtroom

00:41 - at our state capitol in Harrisburg, and I remember it vividly.

00:46 - I ask that we observe a moment of silence to reflect

00:50 - on the devastating terror attacks that took nearly 3000 lives,

00:54 - and to remember those we lost, and the brave first responders

01:00 - who put their lives on the line.

01:14 - Thank you very much.

01:16 - while you're here, I hope you'll take a moment

01:19 - to observe the majesty of our Philadelphia courtroom

01:23 - and its tributes to our system of justice.

01:26 - Before we hear the first case, I'd like to remind Council of a few things.

01:31 - Appellant's counsel, please approach the podium when your case is called.

01:35 - I will then give, a brief summary of the case.

01:39 - Please begin by stating your name and the party you represent

01:43 - and introducing your co-counsel to the court.

01:46 - The justices are familiar with the cases, so I ask that you avoid

01:50 - any unnecessary recitation of facts or procedural history,

01:55 - and instead focus on the main issues on which we granted to review.

02:00 - Council is welcome to rely on their briefs

02:03 - for particular issues if they so desire.

02:06 - I also remind you that we do not permit rebuttal

02:10 - in cases in which there are multiple parties represented by separate counsel.

02:15 - Council should avoid repeating the same arguments as prior counsel.

02:20 - Please try not to interrupt the justices when they are asking you a question.

02:25 - A justices question is not meant to trip you up.

02:28 - It rather indicates there are particular issues we want to explore further.

02:33 - While there's no set time limit for argument.

02:36 - I will advise counsel when the court is satisfied

02:39 - that all of its questions have been answered.

02:41 - And at that time, I will ask that you conclude your argument. Mr.

02:45 - Minter, please call the first case.

02:50 - Hello and welcome to a preview of the Pennsylvania

02:53 - Supreme Court's oral argument for the September session.

02:57 - My name is Kim House, and along with my colleague

03:00 - Alicia Hitchcock, we will be previewing these cases for you.

03:05 - The first case

03:07 - the court will hear today is called

03:10 - Chanel Glover versus Nicole Jr.

03:13 - Miss Glover is appealing an order

03:15 - finding that a contract existed between her and her now ex-wife, Miss Jr,

03:21 - which gave Miss Junior co-parenting rights of a child born to Miss Glover.

03:26 - After the women separated.

03:30 - In January of 2021.

03:32 - Miss Glover and Miss Jr, a same sex couple, were married

03:36 - in California and subsequently moved to Philadelphia.

03:40 - The two women discussed having a child together, and Miss Glover became pregnant

03:44 - with the assistance of a sperm donor via in-vitro fertilization.

03:48 - In August of 2021, the couple then separated

03:52 - during the pregnancy and ultimately divorced.

03:55 - The trial court found, and the Superior Court affirmed,

03:58 - that the two women had a meeting of the minds to undertake

04:02 - to conceive and raise a child together as a child of both of them.

04:06 - Despite such an agreement being oral and informal, the issues before the court

04:11 - today are whether an oral contract existed between the women

04:15 - to have and raise a child, and whether or not Pennsylvania

04:19 - should adopt the doctrine of intent based parentage in the context of a child

04:24 - conceived through assisted reproductive technology, such as IVF.

04:29 - The intent based approach looks at whether or not a person

04:32 - intended to have and parent child, regardless of biological relation,

04:37 - lack of adoption, and marriage to the other parent.

04:41 - Thank you.

04:42 - Good morning.

04:43 - May please the court.

04:44 - My name is Barbara Schneider, and I represent the appellant, Chanel Glover.

04:48 - And this court has granted,

04:51 - an appeal on three issues.

04:55 - one is, as the court said,

04:57 - whether this the holding of the Superior

05:01 - Court on Bank conflicts with the holding of this court's decision

05:07 - in CG versus J.H., there was also an issue as

05:10 - to whether or not, the,

05:16 - there was that

05:18 - a tent based parentage should be applied

05:21 - to reach a conclusion that a contract oral contract

05:26 - established the spouse as a legal parent,

05:29 - the spouse who was an unrelated party,

05:33 - the parties were married.

05:38 - the parties conceived a child during the marriage.

05:42 - Although there are several contracts involved

05:46 - here, the parties separated.

05:53 - explain what you mean by conceived in this context.

05:56 - Conceived was the parties.

06:00 - Miss Glover became pregnant

06:03 - with a child by assisted reproductive technology.

06:07 - The contract that permitted.

06:09 - I didn't want to recite all of the facts again.

06:11 - So the contract that permitted the,

06:17 - conception for the the contract that,

06:23 - extinguished the sperm donors, right.

06:25 - Relinquished the sperm donors right to parenting of the child

06:29 - was a contract through Fairfax Crime Bank.

06:33 - The signatory to the contract was the appellant

06:37 - as the sole responsible

06:41 - parent party, the only signatory to that contract

06:46 - who was named as a responsible parent.

06:50 - The only there were no other, contract

06:53 - provisions, and in the contract itself,

06:57 - it identifies Miss Glover

07:00 - as the sole

07:05 - legal parent to that child.

07:08 - There were no other provisions in the contract

07:10 - that gave Miss Junior

07:14 - any, responsibilities, any parentage,

07:20 - assumptions, anything that.

07:25 - Objectively, looking

07:26 - at that contract, you could say this person,

07:30 - intended to be a parent to that child.

07:34 - Assume responsibilities and I think

07:38 - in, contrast

07:42 - the case that that we referred to as a superior court case,

07:46 - but it's in ray babies

07:48 - where through every step of the process that these parties undertook

07:54 - and it was a heterosexual couple, but we as you know, the law is evolving

07:58 - and evolving, and there's different parenting, family settings.

08:05 - But it was very, very clear,

08:09 - in those contracts, at each step of that,

08:14 - at least stage of

08:16 - bringing a child into this world,

08:20 - the non-related party,

08:23 - in this case, it was the the wife

08:27 - agreed that an adoption was not necessary.

08:31 - She would assume parental rights of this child no matter what,

08:35 - put her name on the birth certificate could be considered the parent be take

08:40 - all of the responsibilities necessitated by a parent

08:45 - that was done each step.

08:47 - It was assured that this child that the couple was bringing

08:52 - into this world in its best interest would have that, assurance,

08:59 - because a lot of our estoppel cases and the concurring opinion

09:04 - by Judge Wecht and Judge Daugherty in this

09:07 - case specifically focus on

09:12 - the best interests of a child, not the parties.

09:15 - It's not a commercial transaction.

09:18 - So let's jump to the the argument of intent based parentage.

09:23 - What's your position on that?

09:24 - My position is that intent based parentage,

09:28 - especially in this case, is, unwarranted here.

09:33 - I don't think it's appropriate

09:35 - because what you do is you take,

09:39 - a nebulous intent.

09:42 - And I've read the concurrence and the, the majority

09:46 - opinion in CG.

09:49 - It requires more than people

09:52 - agreeing to conceive a child together. Why?

09:55 - Because in the best interest of a child, I think that the Commonwealth

10:00 - has an interest in assuring that somebody will take responsibility.

10:04 - Somebody is ready to take the responsibility.

10:07 - And in all circumstances has said to the world,

10:10 - I am the parent of this child in an enforceable contract.

10:14 - Share with us, based upon the facts of this case and what both parties did.

10:18 - Why should this court not find that it was intent based?

10:21 - They decided that they wanted to have a child.

10:23 - They contracted with the service they contract prior to due.

10:28 - They did everything that parents would do in preparation of a child.

10:33 - So share with me why this court should not assume that

10:36 - that's an intent based parentage, because they did not contract.

10:40 - And what was the consider appellant's.

10:42 - Let's talk about that.

10:43 - What would be the consideration in a contract for parentage.

10:47 - Well comments.

10:49 - Have a boy.

10:50 - No. The consideration would be the assumption

10:52 - of parental duties under any circumstance.

10:56 - Not if there's an adoption.

10:59 - Not this was a at best case

11:04 - a your client and joint

11:07 - engaged legal services for second parent adoption.

11:10 - Did they not are the clients engaged in our law

11:16 - for an adoption after

11:19 - after the child was born?

11:21 - And if and if the child if not born

11:25 - by the by the terms of the contract,

11:29 - it was if the marriage survived.

11:32 - And I believe that a big issue here that is being overlooked

11:38 - in my in my opinion, I don't sit here and I don't have the authority, but

11:44 - when you talk about the best interest of a child

11:47 - and you talk about the assumption of parenting responsibilities

11:52 - after the first trimester, which coincides

11:55 - with what we're arguing is an attempt maybe to conceive a child,

11:59 - but not necessarily to assume and carry out parental responsibilities.

12:05 - If my client were in for something, I don't know

12:07 - what there would be to enforce.

12:08 - If you take the parental scenario, if your client took her ovary

12:13 - and had it implanted in junior,

12:16 - that's a different issue because they would both be related.

12:20 - That this

12:23 - this though you would spouse you said they would be related.

12:26 - There's parentage.

12:28 - There's parentage.

12:29 - This is a step parent at the best.

12:33 - Okay.

12:34 - Non-related did not assume responsibilities of if I read CG

12:40 - by the letter of the opinion,

12:43 - it required a substantial

12:46 - and an immediate interest in this child

12:49 - going forward, not in the conception of this child,

12:53 - not up to the date that we agreed to conceive a child.

12:56 - And this glover became the sole responsible party,

13:00 - the only identified parent, the only enforceable contract.

13:06 - party counsel.

13:07 - Let me let me, follow up.

13:09 - and I don't I don't think it I don't know that

13:12 - it be particularly fruitful to debate the facts.

13:15 - The facts are what they are.

13:17 - But, a couple of times now, you've,

13:23 - You've characterized the, the dealings here in a way

13:27 - that seems at variance with, with what occurred.

13:32 - my understanding, you tell me if I'm wrong.

13:35 - Is that the Fairfax CRI bank contract

13:39 - identified JR as the co intended parent in quotes.

13:44 - The co intended parent, and then

13:47 - that subsequently the

13:51 - the care share agreement entered into signed by both Glover

13:56 - and Jr identified jr as the partner

14:02 - in the care share

14:04 - presumably care share of the child.

14:07 - So, it seems a

14:10 - you're you're resting a lot

14:12 - on a, on a, on a pretty fine grained distinction.

14:16 - You want to insist that there was, an agreement to conceive,

14:20 - but not an agreement to parent.

14:24 - But you you also want to argue that

14:28 - intent should not be a factor because it's too nebulous.

14:33 - So I'm not sure whether you want to rule out intent based parentage

14:37 - altogether to the extent you do.

14:41 - characterizing it as nebulous

14:43 - isn't so much of what we do in family law susceptible,

14:48 - to that characterization?

14:50 - That's the interests of the child, for example.

14:52 - Right? I there's several questions in there.

14:55 - So it's not a care shares agreement

14:59 - of parenting the child.

15:02 - It's a financial agreement.

15:04 - It's a financial agreement as to payment for services.

15:09 - It's a we will jointly

15:11 - pay for the service.

15:16 - It doesn't it sets forth the responsibilities under a contract.

15:24 - Miss Jr is identified as

15:27 - the partner, not a parent, not an intended parent.

15:31 - The partner to Miss Glover

15:34 - is that is that, by the way, is that,

15:37 - in your understanding, altogether rare?

15:39 - it it had been my understanding that in this, field around the country,

15:44 - there are many times in which, the, gestational

15:49 - the gestational parent, may be the only signatory,

15:54 - and the other intended parent may not be a signatory to a contract,

15:59 - but intent may nonetheless be there.

16:01 - Do you rule that out?

16:03 - My answer is specific to this case, but we're now interested

16:08 - in this case, obviously, before it's interested in more than your case.

16:11 - Well, what I would point to is where

16:16 - it has been found to there to be an enforceable contract

16:20 - for two parents, and that's in three babies.

16:23 - The parties did not rely upon the contract necessarily.

16:29 - That was just put in front of them to be sure that everybody

16:33 - was clear in the on to the microphone to be sure that everybody was clear

16:37 - what their positions were, what their intent was

16:41 - that, oh, I'm sorry.

16:43 - They added provisions to that agreement so that it was clear in the best interest

16:50 - of this child that these roles

16:53 - would be assumed and carried out.

16:56 - And and there are terms in family law

17:01 - that do seem nebulous.

17:05 - But the bottom line is the best interest of the child.

17:09 - And what I would say specifically, as in as in this case,

17:14 - the facts do not support

17:17 - an intent based parentage

17:19 - for the very reason that, number one, best interest of the child.

17:22 - Number two, there was no specific contract

17:24 - term bestowing those rights, nor was there one made by the parties.

17:28 - And after the first trimester of this pregnancy,

17:34 - Miss Junior left.

17:36 - She the parties separated.

17:39 - She went to, I believe it was Seattle for a writing course.

17:43 - Told my client the appellant,

17:46 - that she would be moving out

17:49 - when the lease on the apartment expired.

17:54 - Came back.

17:54 - That was that was the after the first trimester.

17:58 - So what I would say is the intent with us,

18:01 - how those facts reflect upon a lack of intent to be a parent.

18:06 - Yes. Share with me.

18:08 - Well, I

18:10 - what I would say is in family court

18:13 - and in terms of best interest of a child,

18:17 - I think the court

18:19 - or the Commonwealth needs to be assured that there is

18:23 - a clear assumption of responsibility, clear assumption.

18:28 - My an adoption is not necessary, which it was.

18:31 - In this case, it was intended.

18:34 - It was expected.

18:36 - The affidavits that the parties signed indicated that

18:41 - only after an adoption took place would miss junior

18:45 - be a parent to the child, and and then assume those responsibilities.

18:50 - So I'm a little bit perplexed

18:52 - by your argument because I thought you were going to come in here today

18:56 - and argue against us recognizing or adopting the concept of,

19:03 - intent based parentage.

19:05 - You seem to be arguing more

19:08 - toward the facts that they don't support a conclusion

19:12 - of intent based parenting, but we parentage.

19:16 - But we really need to determine what our framework is, the legal framework.

19:20 - So could you just go back to your position on this court adopting that framework?

19:25 - I think the adoption of intent based parentage,

19:28 - as this court said in CG

19:32 - is not I don't think it's a

19:37 - workable concept.

19:39 - I think the majority in CG said this.

19:43 - This case does not provide the court

19:45 - with a factual basis to make that determination correct.

19:48 - The court did not.

19:49 - The majority did not rule it out and your brief indicates to the contrary.

19:53 - That's not correct.

19:55 - The court says, and I can quote it specifically.

19:57 - I do apologize if it was,

20:00 - misquoted by the

20:02 - if if the court believes it was misquoted.

20:05 - The exact quote.

20:09 - Didn't.

20:17 - Is that CG contends

20:19 - our case law stands for the broad proposition that parentage

20:23 - can be established by intent in situations for where a child is born

20:28 - with the aid of assistive reproductive technology, it does not.

20:34 - Where are you reading that?

20:35 - Can you share with us?

20:36 - That's on I see that it's on,

20:40 - 442 and 905.

20:44 - Then the conclusion of the opinion.

20:46 - Majority's opinion,

20:48 - says accordingly, this case does not provide this court

20:52 - with a factual basis on which to further

20:55 - expand the definition of the term parent.

20:58 - That's why we're here today.

21:01 - Because three of us, three of us, were at least open minded.

21:05 - I think the full court was open minded, but three of us inclined,

21:11 - certainly two of us inclined toward intent based parentage.

21:15 - And I thought that's why

21:16 - we took this case to determine whether a majority stands for that.

21:20 - It was three of us. I joined justice as well.

21:23 - Yeah, but, Justice Daugherty concurrence was somewhat

21:26 - different posture, but open minded about it, certainly.

21:29 - But the specific holding of the case was that it did not apply.

21:33 - That's the holding.

21:34 - And that the court also specifically said that

21:40 - Commonwealth permits assumption

21:42 - or relinquishment of legal parental status under the narrow

21:47 - circumstances of using assistive reproductive technology

21:51 - and forming a binding agreement with respect thereto.

21:55 - Well, nobody denies, nobody here would deny,

21:58 - I mean, that happens every day with sperm donation.

22:02 - that's the other side of this we're talking about.

22:05 - We're talking about gaining parentage, not renouncing it.

22:10 - Well, counsel, is it your position that we should not

22:14 - recognize parentage by intent?

22:17 - It is.

22:18 - And that it also does not apply in this case?

22:21 - Well, I guess I'm sorry if I could if I could,

22:25 - if I could just ask the question.

22:31 - Tell me

22:31 - why you do not believe that the Superior Court

22:35 - and the trial court were correct when they found parentage by contract?

22:39 - Because to me,

22:42 - and I mean maybe, possibly looking at this

22:44 - the wrong way, parentage by contract is a form of intent based parenting.

22:48 - You can't accidentally enter into a contract.

22:50 - So we're talking about is taking intent based parenting by evidence by contract.

22:56 - And this idea of there being intent based parenting without a contract.

23:01 - But here, every court that's looked at this so far

23:04 - has found a contract, at least an oral contract.

23:08 - Well, which I which I've not been told there's a statute

23:12 - of frauds issue here that you need to have a written one.

23:15 - so I guess the question is why is this case

23:19 - the paradigmatic case to even explore

23:24 - extra contractual intent based parenting?

23:28 - If we conclude, as the courts that have looked at this concluded

23:31 - that there is contractual parenting.

23:34 - And that's where the three judge panel,

23:38 - judge Pellegrini's majority opinion, that's where it's stopped.

23:42 - And my argument is, although it seems to be

23:45 - because I'm answering the question, it seems to be a little dispersed. But.

23:50 - the court had to find

23:54 - an enforceable contract under CG

23:58 - because it says the narrow framework.

24:02 - No, not I.

24:03 - So you agree that you can have parentage?

24:08 - you can agree to parentage by contract.

24:11 - You can intend to be parents,

24:14 - by contract, as in re baby rebate in re baby s.

24:18 - Okay. So you agree with that?

24:20 - I don't hear the Superior Court found that was satisfied there was a contract.

24:25 - The trial court found that there was a contract.

24:27 - All I'm saying is, if we find there was a contract,

24:30 - why do why is this case the case that we should be deciding,

24:34 - even though there is a contract here, even though the law says

24:37 - if there's a contract, there's parentage.

24:39 - We should venture into what intent

24:42 - based non contractual parentage would look like

24:45 - in the absence of facts that show no contract?

24:50 - you know, in other words, I'm kind of open to

24:53 - what intent base parentage would look like.

24:56 - But we have a contract here.

24:58 - At least the courts below have said there's a contract.

25:01 - I the reason that subject

25:03 - was included and requested appeal of that

25:08 - was because that was part of the decision of the Superior Court in saying

25:14 - we did not, that the Supreme Court did not specifically decide

25:19 - in this case whether intent based parent, but it could be dicta.

25:23 - It could be it could be dicta because there's a

25:25 - contract, because in my in my opinion, and what I argued was that the superior

25:30 - Court was not within their authority to entertain intent based parentage.

25:36 - It had been ruled that we made clear in

25:41 - that the Superior Court

25:42 - has authority to decide the matters that come before it.

25:46 - They don't have the authority to counter our opinions.

25:49 - But if there's a brave new world, they can go there.

25:52 - Well, my argument is that it does conflict,

25:55 - which is what I argued in my brief because of the statement by this court.

26:00 - But the

26:02 - Superior Court is an error correcting court.

26:05 - So the error that they were tasked to correct

26:10 - was whether or not a contract existed as found by the trial court.

26:14 - And Judge Pellegrini found there was no contract.

26:17 - And then the on bank panel and a divided decision decided that there was.

26:23 - I have an issue with the finding of a contract to begin with,

26:27 - and the assumption of an intent

26:31 - based parentage, as well as intent based parentage in this case.

26:35 - So I've covered tried to cover all bases

26:39 - because I think intent based parentage is a slippery slope.

26:43 - I think it tends to be result oriented, which I believe

26:46 - it was by the Superior Court.

26:48 - I have nothing but respect for the Superior Court.

26:50 - I clerked on the appellate court, but I believe it has,

26:55 - I believe it opens

26:58 - a door to,

27:01 - a lot of issues coming before

27:03 - this court that really

27:07 - need to be ironed out, I would say, by the legislature.

27:10 - I know it not,

27:15 - I suppose, you know,

27:18 - slippery slope arguments are

27:21 - often useful, but in the area of family law,

27:24 - we have a whole lot of slippery slopes.

27:26 - I mean, how to avoid a fact intensive credibility

27:31 - based assessment by the finder of fact.

27:37 - number one and number two,

27:38 - since you mentioned the legislature, how much longer should Pennsylvanians

27:43 - wait for the legislature to give attention to assisted reproductive technology?

27:48 - Maybe, you know, something that we don't know

27:50 - about the intention of the General Assembly to legislate.

27:53 - I have no, I, I know from what I've read in these cases, I've read the cases and

27:57 - and the family law bar itself has waited with bated breath.

28:03 - I know there was something introduced that's been stalled, but.

28:08 - Addressing it on an on a

28:10 - case by case basis is a problem.

28:15 - It it leads to result oriented,

28:19 - decisions such as I don't understand the result oriented decisions argument.

28:24 - I understand your argument that it may lead to protracted litigation.

28:28 - Yeah. So what?

28:29 - Oh, because that just means that the courts are getting

28:32 - involved in really analyzing the facts of the case.

28:36 - If we go with the intent based parentage.

28:38 - But what do you mean, the result of it?

28:41 - I believe that, and it was stated by the Superior Court

28:45 - on the Alabang panel, how is this fair?

28:48 - How is not giving

28:51 - Miss Junior parenting rights here fair?

28:55 - I think we need to strictly apply

28:58 - the law, the law of contracts as it exists and not I mean, if if I know the court

29:05 - has read the opinion of the Superior Court, we're talking about,

29:13 - Interpretations of

29:15 - contracts and picking flowery language that fit into finding a contract

29:21 - that I don't believe necessarily supports a contract, in this case.

29:24 - County counsel, you're conflating the Superior Court's opinion.

29:28 - They had alternative bases for their opinion.

29:31 - One was, contracts plus, of course,

29:34 - of conduct established, parentage in this case.

29:38 - The other was an estoppel argument.

29:41 - Correct.

29:42 - But there are two distinct bases for the opinion.

29:45 - The latter may involve fairness.

29:47 - The former does not.

29:49 - And the issue with the estoppel argument is that and has.

29:54 - This court has viewed and discussed the estoppel argument even in CG,

29:59 - the estoppel argument requires more than

30:05 - conceiving a child.

30:09 - It includes

30:12 - an interest in not just conceiving a child, but in

30:17 - taking care of preserving,

30:20 - having custody, of having legal obligations to counsel.

30:24 - Wasn't that, in fact, the body of the December 21st affidavit each signed?

30:31 - No, actually, the affidavit said,

30:34 - if the child is adopted,

30:37 - if we go through with a formal adoption,

30:40 - my understanding stating for their intent to adopt junior to adopt the son

30:44 - co-parent would equal rights to over and assumed financial obligations.

30:48 - If the if the couple should separate

30:52 - and if the child were adopted,

30:55 - the child can't be adopted according to that contract

30:58 - because the marriage broke up, which it did

31:01 - prior to the birth of the child,

31:04 - there was no maternal.

31:07 - Second maternal figure or argument is that the key factor in a contract

31:12 - for this type of relationship is adoption.

31:16 - Is that what you just told us? No.

31:18 - Then why don't you tell us? Because that's what I heard.

31:20 - No, my argument is that taken as a whole

31:25 - and looking at terms which the Superior Court

31:28 - said, these should be taken as a whole and consider those terms as a whole.

31:32 - And the intent of the parties considering the terms as a whole.

31:37 - There is no contract that bind Miss Jr

31:42 - as a legal parent to this child, absent an adoption,

31:46 - and that was the intent of the parties

31:49 - as expressed in all of these contracts.

31:52 - You start off with Miss Glover being the only legal parent,

31:56 - only one responsible, no other provisions.

32:00 - Then they agree to share the cost

32:03 - of the process.

32:07 - Then they go

32:08 - and agree to have an adoption.

32:12 - If the marriage survives, there would be a legal adoption.

32:17 - And then that's what the affidavits say we intend.

32:21 - Maybe because I don't know in the record we're in the record, does it say

32:25 - in the affidavits that an adoption must occur?

32:28 - That's what the purpose for going to join you.

32:30 - Oh, the the writing of the affidavit, the contract terms.

32:34 - Does it specifically say in that affidavit and upon adoption?

32:40 - Because, yes.

32:55 - I understand that

32:56 - this means the child will have inheritance rights to Nicole.

32:59 - Sean Junior's

33:00 - property will be able to receive Social Security benefits upon her death.

33:04 - And it's if the adoption occurs.

33:08 - I am seeking, seeking to have

33:11 - my spouse adopt this child in order

33:15 - to provide this child with the legal stability of two parents.

33:19 - Where's where's it say it's contingent upon the marriage staying intact?

33:24 - the contract that's

33:25 - included with the general law group that you said was in the affidavit?

33:29 - No, it was the contract with the law.

33:30 - The JR law group specifically says that this is only going to happen

33:35 - if the marriage stays intact.

33:36 - Yes, because the representation

33:39 - of those two parties, there would be a conflict

33:44 - in that representation should they separate.

33:46 - But the affidavit,

33:47 - which is her thing, doesn't say anything about the marriage staying in.

33:51 - No, but it does.

33:52 - She intends she intends her spouse, who was her spouse at the time,

33:56 - to be at the time of the execution of the affidavit, to be the parent.

34:01 - If an adoption occurs.

34:03 - Now, don't say if an adoption occurs.

34:05 - It says. It says I intend her to adopt.

34:07 - There's nothing contingent.

34:08 - I intend to her to adopt. If we remain married.

34:11 - It just says I intend her to adopt.

34:13 - It also says we intend to remain a committed couple.

34:16 - Sure, but that that that was her intent at the time she signed it.

34:20 - But there's nothing in the affidavit that says, oh, and by the way,

34:23 - everything in here is contingent upon us being married.

34:27 - In other words, if our marriage dissolves

34:30 - our our agreement to co-parent this child dissolves.

34:33 - And that's the problem.

34:35 - And that's the issue with this case, is that it did dissolve.

34:39 - And there are no specific, cons terms.

34:45 - Counsel is, as I reminded you, the December 2021 affidavit

34:49 - indicates spousal support or child support should the

34:53 - the couple separate so it was included.

34:57 - So share with me.

34:58 - You can't have it both ways.

35:00 - I'm not I don't mean to have it both ways.

35:02 - What I'm pointing to is they are seeking to have her spouse adopt

35:07 - and then I'm talking the affidavit.

35:10 - Yeah, I'm looking at the I'm sorry. I'm looking at this.

35:12 - They indicate that they will support,

35:17 - the exact Glover will

35:18 - assume financial responsibility should they separate,

35:22 - right to become a legal parent. But

35:25 - should the adoption not occur, this does not happen.

35:30 - And that is her agreement.

35:32 - That's the third prong of the agreement that the Superior Court looked at.

35:38 - Is that as a whole

35:40 - and at each of your argument,

35:43 - if you're correct.

35:47 - Any, married

35:50 - couple

35:52 - that, enters into arrangements like this,

35:58 - with full intentions memorialized as Justice Daugherty was eliciting

36:02 - a moment ago in these affidavits in this affidavit in December 2021,

36:08 - and later, the marriage dissolves as marriages do half of the time.

36:12 - Right.

36:13 - that globally, you

36:16 - you maintain that there's no availability

36:20 - of an intent based parentage claim.

36:24 - in in such cases, it's not just this case, any case.

36:28 - And that's a, that's a breathtakingly, broad

36:34 - concept, isn't it?

36:36 - It is a broad concept.

36:38 - And until there are more, I would say

36:42 - specifics such as

36:45 - contract rights until there's some precept that says

36:48 - this is what is encompassed by an intent based parentage.

36:53 - I suppose.

36:56 - Suppose that suppose, this was a couple

37:00 - that already had kids, and they had raised these kids together.

37:04 - and they,

37:06 - enter into this arrangement

37:09 - for whatever reason, to,

37:12 - engage

37:14 - assisted reproductive technology to conceive another child,

37:17 - and they memorialize it in the way Glover and Junior did.

37:21 - and they have the dual, and they,

37:27 - They,

37:32 - The, the thing proceeds as it did here.

37:36 - And then, eventually the marriage dissolves.

37:41 - under all such circumstances, you would maintain

37:45 - Pennsylvania law absolutely forecloses

37:50 - a claim to parentage.

37:51 - Is that is that what you're saying there?

37:54 - It's.

37:56 - If there was, I would say,

38:00 - in my opinion, on the court.

38:02 - But there is an opening.

38:04 - If there is some intention beyond conception,

38:08 - some binding agreement or some explicit

38:12 - intent that.

38:16 - There be an assumption

38:17 - these parents didn't live together and the child wasn't born

38:21 - when when this all happened, there was no child.

38:24 - January junior moved out of the shared bedroom, and in

38:28 - March she told Glover she was

38:31 - moving.

38:32 - February she left, moved to the move

38:36 - to Seattle.

38:39 - After the shortly

38:40 - after the first like into the second trimester.

38:43 - So when you talk about intent and when you talk about looking at which,

38:48 - justice, I read your concurring opinion, which

38:53 - seemed to require more than,

38:57 - conceiving, it was conceiving plus action, which is problematic.

39:02 - Know I'll give you a break for me.

39:04 - I shouldn't promise that.

39:09 - You want us to.

39:10 - You want us to expound a concept like, say

39:13 - that in Pennsylvania law, there is such a thing,

39:18 - whether same sex couples, opposite sex couples that presumably married

39:23 - couples, unmarried couples of intent

39:26 - to conceive versus intent to parent.

39:30 - I'm not aware of cases, anywhere

39:33 - which, which envision that that, people,

39:39 - contract with one another to, to conceive a child.

39:44 - but but not to parent the child I'm not familiar with

39:49 - or how that would apply here.

39:50 - Well, Your Honor, in your concurrence and perhaps I didn't

39:54 - say it as eloquently as you did, but

39:58 - there needs to be more of a,

40:01 - carrying through

40:04 - of a parental intent than just conception.

40:08 - That's what

40:09 - the problem the issue with KG was.

40:12 - That was the issue with the other cases, that I've read, but

40:17 - I believe Your Honor said, and forgive me if I'm misspeaking that

40:22 - in addition to just conceiving a child together,

40:26 - there has to be more either documentary evidence

40:31 - that is binding on the parties that will assure that both parties

40:35 - are legal parents.

40:37 - What we're we're sort of making this up a little bit. Right.

40:39 - So what about this principle, which seems to justice point a fair principle?

40:45 - We're not talking about agreeing to order a shelf from Ikea.

40:48 - We're talking about agreeing to to prove to

40:51 - bring a child into this world.

40:54 - Correct.

40:55 - What about a legal principle that says

40:57 - when two adults agree to conceive a child,

41:04 - to bring a child into this world,

41:06 - the law will presume their intent to parent?

41:11 - unless they disavow it.

41:13 - So, for example, the contracts with the sperm donors require

41:17 - a contract where they give up where where the donor gives up parental rights.

41:21 - What about we say if you enter into an agreement to bring to conceive a child

41:26 - together, unless you disavow your parental

41:29 - right to that child, the law is going to presume your parents.

41:34 - Then how does the

41:36 - Ferguson versus McKiernan work?

41:40 - No, but

41:42 - she didn't disavow.

41:44 - She filed for support and this court enforced

41:48 - in the protection of a donor.

41:50 - This court enforced that contract.

41:54 - But I think it's opening sperm donation.

41:59 - Right.

42:00 - And here if you want to limit it to intent to conceive

42:05 - then junior is not a part of it at all in your reading.

42:08 - Right. Because junior is not a sperm donor.

42:10 - That would open up

42:12 - the floodgates of I believe.

42:17 - Any but I potentially.

42:23 - One night stands potentially.

42:26 - how does that operate?

42:28 - Conceive.

42:29 - No. We you.

42:32 - Oh, gosh.

42:33 - I don't think this would get the one night stands.

42:35 - it could potentially.

42:37 - I'm I I'm I'm saying you have created this paradigm.

42:41 - As Justice Wecht has pointed out, that they

42:43 - you agree they had a contract to conceive a child.

42:47 - You disagree that they had a contract to parent the child together.

42:51 - I agree that there was a contract,

42:55 - a contract.

42:56 - The conception contract had my client

42:59 - solely as the responsible legal parent.

43:03 - So what I would say is if this court okay, but that's that's an argument

43:07 - I'm asking you fact you agree that you're that the couple that the married couple

43:12 - had an agreement to conceive a child together.

43:23 - It wasn't a one night stand.

43:25 - It wasn't, you know, it wasn't.

43:26 - We're drunk. Let's go to a sperm bank and see what will happen.

43:29 - This is.

43:30 - This is they.

43:33 - I don't know how you can.

43:34 - You can take the contrary position that they at least agreed

43:36 - they were going to conceive a child together as a married couple, right?

43:40 - Right.

43:40 - All I'm saying is, what about if we're making this up, which we seem to be doing?

43:45 - What if we say, you know, if you enter to that kind of agreement,

43:50 - similar to how sperm donors have to disavow parental rights,

43:54 - we're going to say, if you enter into that agreement, if you go through the steps

43:58 - to conceive a child together, and that was your intent,

44:02 - we as a matter of law and as a matter of what's in the best interest of the child

44:06 - we are, can I presume you also intended to be parents?

44:11 - Unless, like a sperm donor would?

44:13 - You disavowed it in writing.

44:23 - I don't

44:25 - necessarily agree.

44:26 - I mean, it's a it's a good question.

44:28 - I would tell you that I haven't I mean, I would have to think it through,

44:31 - but I just

44:35 - I don't think

44:36 - in this case I don't want about I'm not sure about this case.

44:40 - I mean, is that an unworkable paradigm.

44:43 - It may not be helpful to your client in this case.

44:45 - I understand that you don't,

44:47 - but I'm asking you to see that seems to me to see a bright line

44:51 - clear non slippery slope pronouncement of law

44:54 - that tells everybody this is what's going to happen in Pennsylvania.

44:58 - If you enter in a contract to conceive a child together,

45:03 - then we are going to presume as a matter of law

45:06 - that you will parent the child together unless one or both disavow.

45:12 - Hopefully not both. And

45:14 - at well and in

45:17 - parenting the the child

45:19 - together you mean by support custody.

45:23 - Well we'll we'll deal with that if if if if there's

45:26 - a dispute over whether one parent is being a deadbeat parent.

45:30 - But the point is, we're not going to leave these children in limbo

45:33 - that are being brought into this world about deciding where their parents are

45:37 - in the world of in the world of reproductive technology,

45:40 - if you agree to conceive a child, to create a child

45:45 - where the law will presume that you both have also agreed to parent the child

45:49 - unless you disavow and we're doing is advancing the definition of parent

45:55 - from traditional notions, I understand I do under question.

45:58 - It's not about custody support.

46:00 - It's should this court now recognize the concept.

46:04 - And I understand that position.

46:06 - Your answer is the court should not adopt the concept for the same sex couples.

46:11 - Well, I'm not going to say same.

46:12 - My my paradigm doesn't even apply.

46:15 - It could apply to it would be in Ray babies, which is a heterosexual couple.

46:19 - It would be any but I'm bringing it.

46:21 - I'm asking you because I'm bringing it home to your I.

46:25 - My answer, quite honestly, is I would have to think of all

46:28 - the different scenarios, but, I would say

46:32 - that.

46:35 - I don't know how

46:38 - it would be enforced in cases such as mine.

46:42 - I know what you're saying, and I would say it's a good question.

46:46 - And it that might be the way the law is going.

46:49 - That is not necessarily my position today.

46:51 - That's my best answer.

46:55 - Okay.

46:55 - Are there any other questions?

46:57 - All right.

46:58 - Let's hear from your opposing counsel.

47:03 - That's water.

47:09 - Good morning.

47:10 - May please the court I'm Megan Watson, and I'm here on behalf of Nicole Junior.

47:14 - I appreciate the court's consideration of this matter.

47:17 - The case law of this Commonwealth has clearly held

47:20 - that parentage can be established by contract.

47:23 - In situations involving assisted reproductive technology.

47:26 - The decisions in the trial court and superior court to grant Vince

47:29 - Jr parental rights were based on such contract principles.

47:33 - Those courts determined that the parties entered into an oral contract

47:36 - with mutual assent, consideration and definitive terms,

47:39 - being that Miss Junior would be the second parent of the child.

47:43 - The evidence supporting that decision is well enumerated in my brief,

47:46 - and the decision of the Superior Court.

47:48 - And as Justice Robinson noted, I do not believe there is a question

47:52 - about that evidence or the application of contract law to these parties.

47:56 - And the final determination of the Superior Court.

47:58 - So I would like to move on to the specific questions this court has presented.

48:02 - In the first you do you agree, counsel, that if we agree with that,

48:06 - that there's track based parentage,

48:10 - that this is not the case to to explore

48:13 - extra type of contractual intent because the facts here support contract?

48:18 - Absolutely not.

48:20 - This is the perfect case to apply intent based parentage.

48:25 - Okay,

48:26 - you got a contract.

48:27 - So I'm not sure I'm not sure what else what facts you have that give us.

48:33 - It would seem to me they export intent based parentage, whatever that is, is

48:37 - we would have to have a situation where there isn't a contract.

48:40 - Well, I would disagree, Your Honor, because just because there might be

48:44 - one legal basis to foreign parentage does not mean that this court

48:46 - cannot find other legal basis to prevent to find parentage.

48:50 - Except it's dicta.

48:52 - Or we could make this the first and ten in the contract

48:54 - parts of dicta.

48:58 - But, Your Honor,

48:59 - I would say that it's the purpose of finding intent based parentage goes

49:04 - well beyond this case, as the questions presented here really have raised.

49:08 - There is a big gap in our law right now

49:12 - addressing the issues of art and children that are conceived by art.

49:16 - Whether we are talking about had our sexual couples or same sex couples.

49:20 - And this case is a perfect example of what happens because of that gap.

49:24 - With regard to the A.R.T., these are cases where you don't have the typical quote

49:30 - unquote one night stands, because the cases are cases

49:33 - where the couples have to give some, deep thought to,

49:40 - proceeding with this technology.

49:42 - It's, complete with many documents that the parties

49:47 - are required to sign financial commitments, an obligation.

49:51 - And certainly in your case, there's a dual,

49:53 - there's a plethora of documents.

49:57 - And my problem or my issue, I guess,

50:00 - with the intent based,

50:03 - concept in this case

50:06 - is that traditionally when we look at, couples

50:10 - who, have children and whether it's a one night stand or not,

50:16 - to say I didn't mean that I didn't intend to be a parent.

50:19 - That doesn't work.

50:20 - So why should it, in your case, work?

50:23 - Where, you have all these documents and now you're saying.

50:26 - But I intended to be in parent.

50:28 - If it doesn't work on

50:29 - one side of the stream, why should it work on the other?

50:32 - Well, that's right, as Your Honor noted, you cannot accidentally get pregnant

50:36 - with art, right?

50:37 - It is absolutely 100% intentional.

50:40 - And both of these parties intended to have this child.

50:43 - So because of that intent to have those child.

50:46 - And I may be misunderstanding your question, Your Honor, but because of

50:50 - that intent is so clear, because there's no accidental pregnancies in art.

50:56 - Well, there's documents in

50:57 - the case, but and there are oral contracts.

51:00 - But it goes, Your Honor, it goes beyond that because

51:04 - and not every not in every jurisdiction and not with every,

51:08 - sperm donor facility or every, facility that, does implantation.

51:13 - Do they have the same contract language and parties, couples

51:18 - who choose to use something other than RDMa, for example,

51:21 - shouldn't be prejudiced because the language of those contracts

51:24 - aren't as clear as perhaps the the contracts were in this case.

51:27 - So in your case, if, your client intended to be a parent

51:32 - and your, your then proposing that the court adopt as a grounds

51:37 - for finding parentage intent, should it also be a defense to parentage?

51:42 - If your client

51:43 - then says, I didn't intend to be in and I just went along with the flow?

51:47 - Absolutely. I absolutely agree, Your Honor.

51:49 - Intent based

51:50 - parentage should be established both to support the rights of a parent,

51:53 - but also then to claim that this person is not now responsible.

51:57 - Then should, couples that have a one night stand,

52:01 - then be allowed the defense

52:02 - that they shouldn't be required to be a parent to a child

52:04 - because they didn't intend to be the parent?

52:07 - I mean, you're going to leave children out there without

52:11 - parents

52:12 - because I didn't intend it in this case.

52:15 - I did intend it in this case. And how can that be the law?

52:18 - So, Your Honor, I would say they did the act.

52:20 - They did the deed to create the baby that makes them the parent.

52:24 - They did the act. They they contracted for art.

52:27 - That makes them the parent.

52:28 - You do the deed,

52:29 - you become the parent county sheriff of your state of the framework.

52:34 - Should we adopt?

52:37 - Thank you, Your Honor, for that question.

52:38 - So I have proposed in, my brief,

52:42 - a standard for which we could,

52:47 - which like the best interest standard, right, would be a case based fluid

52:51 - analysis of the particular circumstances of the situation before

52:55 - the court at that time.

52:57 - I do want to kind of identify, however, that

53:00 - I think that standard should be clear that post-birth conduct.

53:04 - And I want to just talk about that for a second, can establish intent to parent,

53:08 - but it should never be used to negate the intent of a parent,

53:12 - which has been established either pre or post birth.

53:14 - So if you have pre-birth intent to parent

53:18 - and then maybe similar to this case that person is cut off.

53:21 - You can then use post birth conduct to negate the pre birth intent.

53:26 - Okay.

53:26 - So as I said, in other words once a parent always a parent.

53:30 - So first and and my proposed standard

53:33 - is that the court should ask are the parties married at conception.

53:36 - And that is exactly related to what Justice Mundy was asking.

53:40 - And that is you cannot accidentally get pregnant under a party.

53:44 - So I believe that the existence of a marriage at the time of conception

53:47 - through art should conclusively establish intent

53:51 - and should just and should end the inquiry.

53:54 - What if

53:56 - what if, the other

53:59 - spouse is not aware that the spouse went through a party?

54:06 - So I guess in that situation it would be rebuttable.

54:10 - I'm trying to imagine a situation in which any facility he would at a time

54:16 - the parties are married,

54:18 - allow one party to do that without the consent of the other. I'm

54:21 - not familiar, but I guess it is possible that it would that it could happen.

54:26 - and in that case,

54:29 - I guess perhaps it might be a rebuttable.

54:32 - This is.

54:33 - I mean, I'm not going to interrupt your your flow on your your test.

54:36 - I just

54:40 - this is one of the reasons why I'm concerned

54:41 - this case is not the paradigmatic case.

54:44 - if there is, in fact, a contract.

54:47 - but I'll let you keep going, and then I'm going to come back

54:50 - and ask you about my test, which I think seems to be fairly simple.

54:55 - if the parties are

54:56 - not married, I think think the inquiry would continue.

54:59 - And the next question would be whether there is proof of intent

55:02 - for the non caring parent to serve as the as the other parent to the child.

55:06 - That would also be a fact based inquiry, which could be proved by demonstrating

55:11 - if there was significant participation during the art process

55:14 - by way of the parties behaviors leading up to during the pregnancy.

55:19 - and also in assessing

55:20 - how the parties held themselves out to their families, to friends.

55:23 - did they were they presenting themselves as in this case, as both parents?

55:28 - Had they created names for each other? Had they?

55:30 - Were they calling both mothers grandmother?

55:35 - and also, if applicable, after the child is born?

55:38 - But I would say, as I previously mentioned, post birth

55:42 - control conduct should not negate pre-birth intent.

55:46 - In my opinion, this the standard, at least as a practicing family lawyer is

55:51 - is reasonable.

55:52 - It's clear. It's not burdensome, it's not chaotic.

55:55 - It doesn't require

55:55 - any more evidence than we would in like an in local Prentiss case.

55:58 - It sounds like parentage by estoppel.

56:02 - If you're basically

56:03 - saying if they were married at the time,

56:07 - and they held themselves out,

56:11 - then the one parent

56:13 - can't disavow that they are a parent.

56:16 - That's parentage by estoppel,

56:19 - I would have that is one of the other,

56:21 - legal concepts that was relied on by the Superior Court.

56:26 - And I'm just saying your test sounds like parentage by estoppel.

56:30 - I would yes, I acknowledge it's, I would say it's similar to parentage.

56:34 - For example, Your Honor, I ask you about your presumption.

56:39 - the, how how would the presumptions

56:43 - streamline the fact finding in the trial court?

56:47 - I mean, the same evidence that would,

56:52 - rebut the presumption would also be used

56:56 - to prove that there was no intent to parent I.

57:00 - I'm just thinking of, you know, these these wooden presumptions in our law,

57:05 - you know, if the presumption of paternity, etc..

57:08 - what did they actually gain for us?

57:10 - why don't we just,

57:13 - why don't we just articulate a theory of parentage, of intent

57:19 - based parentage and, and instruct the trial courts to conduct the kind of,

57:24 - probing evidentiary inquiry that presumably occurred here?

57:29 - Well, without more resort, without resort to these presumptions.

57:34 - So I'm not I wasn't necessarily a presumption.

57:35 - What I'm saying is, in the cases where the parties are married

57:40 - and and engaged in a party doesn't

57:44 - it doesn't make sense to say that there was no intent.

57:49 - I mean, obviously there was intent.

57:51 - There's intent to create a child together in those sorts of situations,

57:56 - like in this situation.

57:57 - That should be the end of the inquiry.

57:58 - Instead of going on to a full hearing that

58:01 - that included the affidavits for the adoption,

58:04 - that included the contracts, that included all,

58:06 - you know, emails, that that's not necessary if they were married.

58:10 - Yeah, I fully I mean, it's interesting.

58:11 - So you're saying in this case, if it was done properly or in best practices,

58:17 - so to speak, going forward, junior would have a tailwind.

58:21 - She she wouldn't have had to establish what she established in the trial court

58:26 - because she'd be armed with the presumption, you want to arm her with,

58:31 - and I guess I'm just wondering whether that would impoverish

58:35 - the fact finding in these cases going forward in the trial courts.

58:41 - I think it

58:41 - establishes a clear rule, which right now we don't have.

58:45 - And I also think it treats similarly, similarly situated families similarly.

58:50 - Right.

58:51 - We don't question, unless someone's challenging paternity.

58:55 - When you're married, your presumed to be the parent of that child

58:59 - that's that's conceived and born during the course of your marriage.

59:03 - Now, this court has that marital presumption has been,

59:07 - molded by this court in a way that it applies more towards

59:11 - when they're married, because that consideration

59:14 - is about the protection of that marriage in that family.

59:17 - I'm saying if we are child focused, in our case law and our custody laws,

59:22 - we should be focusing on the fact that these two individuals chose

59:26 - to bring a child into the world together and very deliberately did so.

59:31 - And therefore we should then

59:34 - say, you

59:35 - are both parents and the burden should not be on the non carrying spouse

59:40 - to say, no, I really did intend to be the parent,

59:43 - or there was a contract, or we had these conversations

59:46 - or look at my emails or I was calling my mom, grandma, your test is

59:50 - your test is creating a new your justice Works point.

59:53 - Your test is creating a new presumption that would

59:56 - eliminate our contrast based parenting analogies.

59:59 - 898 This is not an alternative to.

01:00 - 04.901 This is not if we go your way.

01:00 - 08.237 Our contract based parenting case law goes away

01:00 - 11.708 because the burden is less.

01:00 - 13.242 You don't have to show.

01:00 - 15.678 As you just said, we don't have to get into agreements.

01:00 - 16.913 We don't have to have do anything.

01:00 - 22.585 All we have to do is show that they were married at the time of,

01:00 - 25.722 of of conception

01:00 - 29.058 and held themselves out to be co-parents.

01:00 - 32.595 That creates a presumption that they are parents,

01:00 - 35.698 and we don't have to get into contracts and agreements

01:00 - 38.835 and affidavits and anything like that in A.R.T.

01:00 - 41.437 cases in these circumstances. Yes, we are talking.

01:00 - 44.641 So we get rid of that and get rid of our case law that recognizes contrast.

01:00 - 47.577 If we go your way, contract based parenting goes out the window

01:00 - 49.646 only with regard to these cases.

01:00 - 52.348 Well, but we've recognized it in our cases. Right? Right.

01:00 - 55.985 So and I'm I'm saying that you're not just asking for a new test.

01:00 - 58.888 You're asking for a test that takes the place of contract based parent.

01:00 - 02.025 Well, in my opinion, it's an expansion of the contract

01:01 - 05.428 based law, case law that we've had in this case.

01:01 - 08.398 And it clarifies, it makes it much clearer and much,

01:01 - 11.901 more realistic for regular families.

01:01 - 16.272 I mean, these parties, if I can point out we're both lawyers, right?

01:01 - 20.510 So they have a sophistication that is probably more

01:01 - 23.513 than just the everyday parent.

01:01 - 25.682 And even they couldn't get it right.

01:01 - 26.249 We are here.

01:01 - 27.684 Two and a half years later,

01:01 - 31.554 my client still hasn't met her son, and we are litigating this case.

01:01 - 36.659 So contrary base principles for the everyday parent,

01:01 - 40.363 they're not thinking, oh, you know, I'm married to this, my spouse,

01:01 - 41.698 we're going to go to art.

01:01 - 44.067 I have to enter into a contract.

01:01 - 47.070 So, I want to recognize

01:01 - 50.673 how the differing ways in which families are created

01:01 - 54.143 and we should be valuing the way all of our families,

01:01 - 57.747 whether they're created more naturally or whether they're created

01:01 - 00.049 more intentionally through art.

01:02 - 02.652 Counsel, can I ask you,

01:02 - 06.522 is your view of the Superior Court opinion in this case?

01:02 - 11.127 Because I, I think I might be reading it differently, than some others.

01:02 - 14.130 I'm just not as certain,

01:02 - 17.934 that the Superior Court decided

01:02 - 20.970 that this is a contract based parentage.

01:02 - 24.307 As I read the Superior Court opinion,

01:02 - 27.477 they've looked at contracts to which

01:02 - 31.247 these two people were parties

01:02 - 35.218 engaging a third party to do something else.

01:02 - 38.488 So it wasn't as though there was,

01:02 - 42.692 an explicit contract between just two people saying X, Y, or Z.

01:02 - 47.663 I looked at the Superior Court viewing these contracts

01:02 - 52.668 for evidence of intent to parent within those contracts.

01:02 - 56.906 You know, the contract that indicated they were both intended parents?

01:02 - 00.143 I mean, is that binding on either of them?

01:03 - 01.110 Probably not.

01:03 - 05.748 But I mean, the Superior Court spent a lot of time talking about the language

01:03 - 09.886 in the agreements and the course of conduct of the parties.

01:03 - 11.988 Right. Evident in

01:03 - 14.924 an intent to parent.

01:03 - 19.228 So it's hard, Your Honor, because intent and mutual assent

01:03 - 23.633 is one of the necessary provisions to establish contract.

01:03 - 24.901 Well, that's true,

01:03 - 30.072 which brings me to, just this broad sense statement very early on.

01:03 - 34.677 And again, in this argument, because, frankly, it was my first reaction

01:03 - 39.749 until I got into this a little bit deeper that this case, anytime

01:03 - 43.019 you have a contract, you're going to have parentage by intent

01:03 - 45.988 because the contract is going to establish the intent.

01:03 - 49.325 So why are we looking at this

01:03 - 54.297 as a vehicle to, recognize, parentage by intent?

01:03 - 58.467 But the more closely I read the Superior Court opinion,

01:03 - 02.338 I believe that they thought that to get to

01:04 - 07.543 where they absolutely ended up in this case, they really did

01:04 - 10.546 have to apply parentage by intent

01:04 - 13.549 concepts to reach this conclusion.

01:04 - 17.220 Bringing me to the to the point where this I see this,

01:04 - 21.324 likely as an appropriate vehicle to address the issue.

01:04 - 23.025 We accepted this question,

01:04 - 25.895 which is whether or not we should recognize the doctrine.

01:04 - 27.029 But am I wrong?

01:04 - 29.165 Do you think that the Superior Court actually said,

01:04 - 32.168 oh, no, there's clearly a contract between these parties?

01:04 - 33.436 I do think so, Your Honor.

01:04 - 37.506 And I think I think all the the judges on the Superior Court said so

01:04 - 42.111 the majority and the concurring opinions, I also think they all believe

01:04 - 44.247 that this was a perfect case for intent

01:04 - 46.315 based parentage, with the concurrence saying,

01:04 - 48.851 but we aren't comfortable deciding it at our level.

01:04 - 50.920 We are leaving it up for the Supreme Court.

01:04 - 54.190 I think across the board, all the judges on the Superior Court

01:04 - 58.494 were an agreement both on the contract, the oral contract that existed between

01:04 - 01.731 the parties and on the fact that this is a would be a good intent based parent.

01:05 - 05.601 And there's no just I don't think, I don't think you can read them any other way.

01:05 - 07.637 I don't think there's any dispute about that.

01:05 - 09.338 What happened in the Superior Court here?

01:05 - 10.973 I would agree with you.

01:05 - 12.275 justice worked, I think.

01:05 - 16.579 Justice Donohue the the issue I have with just continuing

01:05 - 20.249 under contract, using contract law is really an issue of equity

01:05 - 23.519 because we are then very much treating our families differently.

01:05 - 26.555 But the problem, the problem is.

01:05 - 31.227 And maybe we

01:05 - 34.730 do this, I don't know, I'm not very comfortable with it, but

01:05 - 39.502 you may have a very good argument that we should recognize

01:05 - 42.738 that, that that

01:05 - 46.876 even in the absence of a contract, there may be circumstances

01:05 - 51.781 where this court should recognize, parental rights

01:05 - 56.218 and, and an artificial, conception case.

01:05 - 02.658 But if this case is on all fours, a contract case,

01:06 - 07.496 then we don't have in front of us a factual scenario to tell us,

01:06 - 10.733 give us the example of the non-contract case

01:06 - 13.602 to find intent based parentage.

01:06 - 16.539 And the Superior Court pretty clearly said we find that junior

01:06 - 19.775 has an enforceable right to parentage under principles of contract law.

01:06 - 22.878 Certified record demonstrates the parties mutual assent actions

01:06 - 26.248 in furtherance of sufficiently definite terms of the agreement and consideration.

01:06 - 28.818 So I'm

01:06 - 32.121 sympathetic to your desire that we proclaim some

01:06 - 35.691 some other option.

01:06 - 38.694 But as a judge, I need to know what the facts of your client's

01:06 - 42.131 circumstances are such that that other option presents itself.

01:06 - 45.234 Because right now, under current law, you probably win.

01:06 - 49.939 So you have actually you have won.

01:06 - 51.807 Nobody's taking your victory away from you yet.

01:06 - 54.810 You've already won twice.

01:06 - 57.913 So you're on a I would say.

01:06 - 01.050 Specifically with this case

01:07 - 04.587 is evidence of why, if, for example, we had had in place

01:07 - 07.056 what I'm advocating to have in place that when the parties are

01:07 - 09.959 if the parties are married at the time of conception,

01:07 - 13.896 that would have allowed us, we would not be here 2.5 hour, 2.5 hours,

01:07 - 17.633 two and a half years later, arguing about standing

01:07 - 20.803 and whether she was a parent, we would have had a custody hearing.

01:07 - 23.839 My client would have been able to see their son.

01:07 - 28.944 We would be in a very different place had this legal concept been

01:07 - 32.615 had had been established at the time

01:07 - 36.552 that had had our precedent on contract based parentage, not been there.

01:07 - 40.189 This is really what you're arguing your your argument at base

01:07 - 44.226 is for us to discard contract based parenting

01:07 - 48.864 and go with just a just it just intent based parenting.

01:07 - 50.966 It's not adding an additional test.

01:07 - 53.602 It's you. You think it should be easier.

01:07 - 57.106 And you think for in contract base, parenting is too difficult.

01:07 - 00.843 Yes, but you want your honor, you want.

01:08 - 03.712 If you weren't the winner, that would be one thing.

01:08 - 04.380 But you want.

01:08 - 04.947 We won.

01:08 - 08.017 Legally, my client has not won in her life.

01:08 - 10.653 She still has done well and I'm sad about that.

01:08 - 13.656 I think I don't, but I'm not here reviewing

01:08 - 17.960 custody injunctions or orders of the court granting her visitation.

01:08 - 19.895 I'm not here reviewing any of that stuff to decide

01:08 - 21.964 whether that is appropriate or inappropriate.

01:08 - 24.733 Well, none of that has happened because of these appeals, right?

01:08 - 29.638 So we haven't gotten to any custody decisions and none of that has happened.

01:08 - 34.977 and so, so yes, I am saying that in situations of art,

01:08 - 38.447 I believe intent based parentage is a much cleaner

01:08 - 42.184 and better standard than the current law under contract.

01:08 - 45.754 Any other questions?

01:08 - 48.757 Thank you. Mr.. Thank you, Your Honor.

01:08 - 52.228 Mr. Minter.

01:08 - 55.030 This is yours.

01:08 - 57.733 The next case that we will hear argument in

01:08 - 03.272 is Borough of Westchester versus the Pennsylvania State System of Higher

01:09 - 06.575 Education and West Chester University

01:09 - 10.212 under both federal and state law.

01:09 - 15.618 The Borough of Westchester is required to have a stormwater management system.

01:09 - 19.855 It has had such a system in place for a long time,

01:09 - 23.359 and it calls it a municipal separate storm

01:09 - 26.362 sewer system, or Ms4.

01:09 - 29.265 But in 2016, in

01:09 - 33.235 order to address the needs that were increasing

01:09 - 37.706 to maintain that system, it passed an ordinance which allowed it

01:09 - 41.877 to assess fees against entities

01:09 - 44.880 that were making use of the stormwater system.

01:09 - 50.052 It sent a bill to the Westchester University, which refused to pay it,

01:09 - 54.256 and it and the Commonwealth System of Higher Education

01:09 - 58.594 both say that this is not a bill for a fee.

01:09 - 01.297 It is instead a tax.

01:10 - 05.701 The case was brought to the to the Pennsylvania Commonwealth Court,

01:10 - 09.538 and the Commonwealth Court decided on the papers

01:10 - 15.110 without a trial, and that the Westchester University was correct,

01:10 - 18.447 that the borough could not prove that it was a fee

01:10 - 21.884 for service, and that it was instead a tax,

01:10 - 27.289 and as a tax it could not be assessed against West Chester University,

01:10 - 31.360 because West Chester University is an arm of the state.

01:10 - 35.030 The question that the Supreme Court is being asked

01:10 - 39.068 is, is this a fee or is this a tax?

01:10 - 44.506 And if it is a fee, is it reasonably proportional to the amount

01:10 - 48.978 that is actually being used by West Chester University?

01:10 - 54.016 That's an interesting question here, because West Chester University

01:10 - 58.554 is only partially in the city of West, in the borough of West Chester.

01:10 - 01.890 The rest of it is in other locations,

01:11 - 06.729 and it also has its own stormwater management system.

01:11 - 11.367 And so it only uses the West Chester system in part.

01:11 - 15.537 This gave rise to 11 amicus briefs

01:11 - 19.575 people who weighed in with different interests, different ways

01:11 - 23.545 of looking at things, including talking about the fact

01:11 - 27.283 that other statutes like the second Class Township Code

01:11 - 30.552 and the Authority's code, gives specific

01:11 - 34.857 rights to assess fees and asking the court

01:11 - 38.961 to take those into account when it makes its decision.

01:11 - 43.766 Others focused on the constitutional right to pure water,

01:11 - 49.305 and asked the court to consider that West Chester is trying to perform

01:11 - 52.775 its duty as a trustee of the Waters.

01:11 - 57.413 Still others sided with the West

01:11 - 01.350 Chester University and talked about the lengths

01:12 - 07.156 to which institutions and entities are going to handle storm water.

01:12 - 10.993 needs, and asked that the borough

01:12 - 15.197 not be allowed to to tax them for it.

01:12 - 20.602 Good morning.

01:12 - 21.203 Good morning. Run.

01:12 - 25.307 As part of its storm water management system,

01:12 - 29.578 the borough of Westchester imposed a stormwater charge

01:12 - 33.315 on developed properties in the borough, which is calculated

01:12 - 37.753 based on the impervious surface area within the developed property.

01:12 - 43.926 The Pennsylvania State System of Higher Education and the Westchester

01:12 - 48.263 University refused to pay the borough stormwater charge,

01:12 - 54.770 alleging that the charge is actually a tax from which the university is immune,

01:12 - 58.907 and the borough sought declaratory relief in the Commonwealth Court.

01:12 - 03.345 That court granted summary judgment in favor of the university,

01:13 - 09.451 finding the stormwater charge was a tax because, among other considerations,

01:13 - 14.656 the funds received from the stormwater charge benefit the community as a whole,

01:13 - 18.060 and the university does not receive a discrete

01:13 - 21.563 benefit from the borough's stormwater management system.

01:13 - 25.567 The court further concluded that the stormwater charge

01:13 - 30.339 is not a permissible service fee, because the borough did not demonstrate

01:13 - 34.443 that the fee is reasonably proportional to the value of the benefit

01:13 - 36.612 received by the university.

01:13 - 39.081 In this direct appeal by the borough,

01:13 - 43.085 we address the propriety of the Commonwealth Court's conclusions.

01:13 - 45.187 Please proceed.

01:13 - 47.289 Good morning, Madam Chief Justice.

01:13 - 48.791 Members of the court.

01:13 - 49.825 May it please the court.

01:13 - 55.497 My name is Michael Gill and I am joined by my co-counsel, Alexandria Roberts.

01:13 - 00.302 I will be arguing the entirety of the case on behalf of the Borough of Westchester.

01:14 - 03.639 Before I begin, I would just like to note

01:14 - 09.344 that I am wearing an insulin pod, which may beep, during my presentation.

01:14 - 12.681 I have not yet, despite having it having it for a number of years,

01:14 - 16.318 figured out how to stop that very audio beeping.

01:14 - 20.589 the borough of Westchester respectfully requests

01:14 - 23.926 that this court reverse the order of the Commonwealth Court,

01:14 - 26.962 which granted summary summary relief

01:14 - 29.631 to the State System of Higher Education

01:14 - 34.036 and Westchester University, and denied such relief to the borough.

01:14 - 39.041 The issue in dispute is the characterization of the borough's

01:14 - 44.179 stream protection fee as either a fee, which, of course, the borough asserts

01:14 - 47.316 it is, or a tax, which the state system

01:14 - 50.319 asserts in holding for the borough.

01:14 - 54.556 This court will join a number of other state and federal courts

01:14 - 00.796 which treat stormwater fees as such and not as taxes.

01:15 - 04.466 This case,

01:15 - 07.469 as most of the cases before this court are,

01:15 - 13.108 is of far greater significance than the approximately $130,000 per year

01:15 - 15.677 which the state system of higher education

01:15 - 20.082 has not paid to the borough of Westchester since the Stream Protection Fee

01:15 - 24.786 program was implemented in 2016, 2017,

01:15 - 28.790 as demonstrated by the considerable number of amici

01:15 - 33.795 in this case, this court's resolution of the issue will have statewide

01:15 - 37.266 ramifications between municipalities,

01:15 - 40.769 which must manage stormwater flow

01:15 - 44.506 and the exempt and immune communities.

01:15 - 47.509 Property owners within those communities

01:15 - 51.280 will be immune property

01:15 - 54.883 owners and exempt property owners who enjoy the benefits

01:15 - 59.021 of connection to municipal stormwater systems

01:15 - 02.391 enjoy those benefits without having to pay for them,

01:16 - 06.562 and if so, who will?

01:16 - 12.167 There are two fundamental truths in this case.

01:16 - 14.570 Firstly, stormwater flows.

01:16 - 15.938 We so

01:16 - 18.941 far haven't figured out any way to stop that,

01:16 - 22.311 and it flows from developed properties.

01:16 - 26.315 And then when it does flow from those developed properties

01:16 - 30.619 in a manner which differs from the natural flow of water,

01:16 - 33.855 which is often the case in development,

01:16 - 37.025 someone must manage that flow.

01:16 - 41.897 You cannot simply discharge stormwater downstream

01:16 - 44.900 when you have altered the natural flow of that water.

01:16 - 47.202 There's to be

01:16 - 49.137 another undisputed fact

01:16 - 52.708 in this case is that stormwater, which flows

01:16 - 58.113 from North Campus at Westchester University, is collected

01:16 - 01.283 by the Borough Collection and conveyance system

01:17 - 06.655 and is conveyed through that system to a receiving watercourse.

01:17 - 10.425 That fact is undisputed water.

01:17 - 14.496 And I'll say it again water from West Chester University's North

01:17 - 18.333 Campus enters the borough's collection and conveyance system

01:17 - 24.272 and is collate and collect, collected and conveyed to a receiving watercourse.

01:17 - 28.443 The borough's expert

01:17 - 32.948 estimated the volume of that flow on an annual basis

01:17 - 38.086 to be approximately 32.5 million gallons.

01:17 - 41.390 Here,

01:17 - 45.293 the state system of higher education and all of the property owners,

01:17 - 49.297 all of the owners of developed properties within the borough of Westchester.

01:17 - 52.534 An important distinction the borough only charges the fee

01:17 - 56.438 to developed property owners, not undeveloped properties.

01:17 - 02.177 Here, the state system and all of those other property owners can rest easy.

01:18 - 05.480 They do not need to figure out how

01:18 - 08.850 they are going to get their stormwater from their properties.

01:18 - 12.020 Edge from the low points on their properties

01:18 - 15.090 to a receiving watercourse.

01:18 - 16.091 We have the clarification.

01:18 - 19.895 When you say all developed properties, you mean residential and commercial? Yes.

01:18 - 24.232 Your honor, a developed property is a is a term defined in the ordinance.

01:18 - 29.104 essentially generally as a property that has man made alterations

01:18 - 32.974 to the calculation is the same for the

01:18 - 36.745 I'll say charge of, you know, fee tax.

01:18 - 38.613 I don't know, we'll figure that out

01:18 - 40.982 is the same for residential as it is commercial.

01:18 - 42.350 It's based on impervious surface.

01:18 - 43.985 The calculation is the same.

01:18 - 48.423 It's $6.70 per 1000ft² of impervious cover.

01:18 - 54.229 and there is a tier system, set up to establish properties into six

01:18 - 58.667 separate tiers based on the amount of impervious cover at each property.

01:18 - 03.405 and then the charges based essentially a multiplier

01:19 - 08.243 or a divisor of divisor of the base fee from there.

01:19 - 09.811 But at the core, at the core,

01:19 - 13.815 the calculation is based on the amount of impervious cover

01:19 - 18.120 at the property times a multiplier times a multiplier, and the multiplier is based

01:19 - 21.957 on what the multiplier was originally determined by.

01:19 - 26.762 or recommended by a stormwater advisory committee, which was which worked

01:19 - 30.599 in the borough over a period of time to develop this program.

01:19 - 33.335 and that tells me who created it.

01:19 - 35.203 The question is, what is it based on?

01:19 - 39.174 It's based on the projected costs by that committee,

01:19 - 43.712 as recommended to Borough Council for the costs of operating,

01:19 - 47.682 the borough system, plus the cost of future

01:19 - 50.986 stormwater projects which the borough would undertake

01:19 - 55.657 and the stormwater advisory committee and then recommended to borough council,

01:19 - 02.597 had essentially a menu of projected future projects to,

01:20 - 05.600 enhance the stormwater management system in the borough.

01:20 - 08.036 there was,

01:20 - 11.039 you know, the Cadillac there was the

01:20 - 14.142 I'm going to do away with that analogy because I'm not good enough with cars.

01:20 - 17.712 There was the high level, the medium level and the low level,

01:20 - 20.148 and I believe that they ended up somewhere,

01:20 - 23.985 just with a fourth option, between medium and high.

01:20 - 27.289 and then they determined the amount of revenue

01:20 - 30.525 that would be needed to carry out that program.

01:20 - 35.897 they, estimated the amount of fees, which would be,

01:20 - 39.167 collected from the developed properties in the community.

01:20 - 44.539 and that led them sort of through reverse engineering to the $6.70.

01:20 - 48.109 see if I remember the ordinance, the ordinance

01:20 - 51.112 specifically defines what is included in the borough system.

01:20 - 53.615 Is that correct?

01:20 - 58.053 there's a specific definition of what the borough system is.

01:20 - 59.654 If I if I may, Your Honor.

01:21 - 16.705 The stormwater

01:21 - 19.975 management system is defined in the ordinance.

01:21 - 23.144 and this is in the record at page 55.

01:21 - 28.884 A, as a system of collection and conveyance, including underground

01:21 - 33.555 pipes, conduits, mains, inlets, culverts, catch basins,

01:21 - 38.827 gutters, ditches, manholes, outfalls, dams, flood control structures,

01:21 - 43.231 natural areas, structural and nonstructural stormwater management.

01:21 - 46.835 Best management practices, channels, detention ponds,

01:21 - 50.772 public streets, curbs, drains, and all devices, appliances,

01:21 - 56.611 appurtenances and facilities a pertinent thereto used for collecting,

01:21 - 01.082 conducting, pumping, conveying, detaining, discharging and or treating stormwater.

01:22 - 04.352 So essentially an entire unified,

01:22 - 08.189 singular system of to boil that down.

01:22 - 12.928 methods for capturing stormwater through inlets

01:22 - 16.197 and conveying stormwater through pipes

01:22 - 18.934 ultimately to a receiving watercourse.

01:22 - 22.370 So so the reason why I asked you that question was, I think I you know,

01:22 - 27.542 I wonder whether there's factual issues in this case, but, and whether the

01:22 - 30.745 whether the Commonwealth, you know, that's where I'm kind of wondering whether

01:22 - 33.815 this was a premature grant of summary relief

01:22 - 35.750 or sort of genuine issues of material fact.

01:22 - 39.754 what in terms of

01:22 - 44.759 the fee that is being charged to West Chester University, you indicated

01:22 - 47.762 in your opening that the stormwater

01:22 - 51.099 at that facility goes into,

01:22 - 54.102 a great gets conveyed by a pipe,

01:22 - 59.574 to a water disc or just to, discharge on a waterway.

01:22 - 00.108 Correct?

01:23 - 04.713 That is correct, your honor, is the fee that you are imposing on West Chester.

01:23 - 08.416 to recover the cost for that conveyance

01:23 - 11.453 of that water through that pipe to the watercourse?

01:23 - 15.957 Or is the fee being used for some greater,

01:23 - 19.194 larger purpose

01:23 - 22.931 unrelated to the system that the borough that that

01:23 - 25.967 that the university is actually using?

01:23 - 27.302 Thank you.

01:23 - 29.471 That that is an excellent question.

01:23 - 32.474 And, one that's really at the core of this case,

01:23 - 36.277 the university, the state system asserts that

01:23 - 39.280 unless the borough is using

01:23 - 42.817 the dollars that it collects from the state system

01:23 - 48.456 to work on the stormwater collection and conveyance system, directly

01:23 - 53.928 adjacent to the university campus, that somehow this can't be a proper fee.

01:23 - 56.364 our position, of course, is the contrary.

01:23 - 01.736 We have a singular, comprehensive stormwater management system

01:24 - 03.038 in the borough.

01:24 - 08.176 it has never been the law of this Commonwealth, as far as we are aware,

01:24 - 11.546 that you must use if you collect

01:24 - 17.118 $100 from a property owner for a fee, that you must use that $100

01:24 - 20.522 to specifically benefit that property owner.

01:24 - 24.692 and if you only use $50 to benefit that property owner,

01:24 - 28.163 you must refund the $50 the other $50 to them.

01:24 - 30.498 I don't I don't think that that's what they're saying.

01:24 - 33.501 I think, I think or at least that's not how I read it.

01:24 - 37.605 I think you my question is, is and I don't think I wonder whether

01:24 - 41.609 the Commonwealth Court opinion wrestled with the facts is,

01:24 - 46.614 is what is are you entitled to

01:24 - 50.285 to assess a charge for the use of the system,

01:24 - 53.822 which I suggest you probably are just like using

01:24 - 56.825 a sewer system or a water system.

01:24 - 02.730 but does your fee, does your structure, collect revenue

01:25 - 08.236 to, to pay for things outside of the system?

01:25 - 09.838 Beyond the system?

01:25 - 12.874 And your argument clearly is no, I understand you believe.

01:25 - 15.877 No, but I just wonder whether there's a factual issue there

01:25 - 19.114 that that was in dispute, that that should have prevented

01:25 - 21.649 the Commonwealth Court from entering summarily.

01:25 - 25.420 Our argument, of course, is no, Your Honor, the stormwater ordinance, the

01:25 - 29.691 the stormwater protection ordinance, which is the genesis of the fee,

01:25 - 34.529 expressly requires that all of the revenue from the stream

01:25 - 39.167 protection fee be deposited into a stormwater fund.

01:25 - 39.467 Right.

01:25 - 41.803 But the fund can only be used for certain purpose,

01:25 - 45.106 and then the fund can only be used for stormwater related purposes.

01:25 - 49.577 the system or just maintaining it?

01:25 - 57.252 If I may throw.

01:26 - 05.527 It to the extent there's a difference

01:26 - 09.697 with the question for the stormwater management fund, this is section

01:26 - 14.335 nine of the enabling ordinance at page 58 of the record.

01:26 - 19.741 all sums collected from the payment of the stream protection fees

01:26 - 24.145 shall be deposited into the Westchester Burrows Stormwater Management Fund.

01:26 - 28.216 The Stormwater Manager subsection B, the Stormwater Management

01:26 - 32.520 Fund, shall be used by the Borough for implementation and management

01:26 - 35.523 of a program to manage stormwater within the borough.

01:26 - 39.427 Constructing, operating and maintaining the borough's stormwater management

01:26 - 40.461 system.

01:26 - 43.464 Debt service for financing stormwater capital projects

01:26 - 47.602 and for payment of other project costs and performance of other functions

01:26 - 53.041 or duties authorized by law in conjunction with the maintenance, operation, repair,

01:26 - 56.511 construction, design, planning and management of stormwater

01:26 - 00.481 management facilities, stormwater facilities, programs and operations,

01:27 - 03.885 though that does not expressly contemplate replacement.

01:27 - 07.855 I would

01:27 - 11.125 I would argue here today that it's inherent,

01:27 - 15.330 that if a portion of the system fails,

01:27 - 18.333 if a pipe that was

01:27 - 22.003 a pipe degraded, and that needed to be replaced, that

01:27 - 25.406 that would be a valid use of the stormwater management fund.

01:27 - 27.141 What about what?

01:27 - 29.477 So I'm glad you brought that provision.

01:27 - 33.381 construction, operating and maintaining the burrow system.

01:27 - 35.350 And again, that's a specific defined thing.

01:27 - 37.619 The burrow system. Correct.

01:27 - 40.622 So that's two.

01:27 - 43.124 But this fee can also be used for

01:27 - 47.362 managing a program generally not just the burrow system, a program

01:27 - 51.799 generally, debt service for capital projects

01:27 - 55.970 which may or may not be related to stormwater

01:27 - 59.274 capital projects which may not be related or related to the system.

01:27 - 03.144 Whatever we define the system is and other things.

01:28 - 05.346 I'm not saying these aren't all stormwater related.

01:28 - 09.851 I'm saying that as I read your ordinance, I'm wondering, is there a distinction

01:28 - 15.923 between the system that they are using of which you should be entitled to do a fee

01:28 - 19.594 and general stormwater things

01:28 - 22.630 you might be doing around that you can use the fund for?

01:28 - 24.165 Well,

01:28 - 27.035 of course, the burrow's position is that this is a is that

01:28 - 30.805 this is a broad read of the, empowerment that,

01:28 - 35.777 if there are things which benefit the system, that could be under

01:28 - 40.148 the Ms4 permit, the borough's Ms4 permit, that could be public outreach.

01:28 - 44.218 The university, as we'll get to in a moment, has its own ms4 permit.

01:28 - 47.388 And part of that permit relies on the resources on the burrow system.

01:28 - 48.956 Yeah it does. Yes.

01:28 - 52.593 But is a is is planting is is is digging a swale

01:28 - 55.697 on the opposite side of the burrow and planting trees

01:28 - 01.102 something that the burrow or that, that this fee that they're paying for.

01:29 - 02.770 I yes, yes.

01:29 - 07.575 Because we have a single comprehensive system stormwater management system

01:29 - 08.743 within the burrow.

01:29 - 11.879 And though there are two separate watersheds,

01:29 - 15.249 there's Goose Creek, and there's Taylor run.

01:29 - 16.918 I'm sorry. Plum run. Excuse me.

01:29 - 22.757 that the, stormwater, because of the way topography is in the burrow run

01:29 - 27.695 stormwater runs to we essentially have a single comprehensive system.

01:29 - 30.898 So improvement to one part of the system,

01:29 - 33.835 benefits the entire system.

01:29 - 37.271 if we want to get philosophical just the same way, a butterfly

01:29 - 40.274 flapping her wings, creates,

01:29 - 43.511 some wind effect, some portal, some part away,

01:29 - 47.215 I would posit that this is much closer, much less attenuated than that.

01:29 - 51.786 I'll also point out, Council, can I can I tease out that particular argument?

01:29 - 52.387 Certainly.

01:29 - 53.788 Because just as props and asking you

01:29 - 56.791 about hypotheticals, you're talking about butterflies.

01:29 - 59.861 Was there any evidence procured in this particular litigation

01:29 - 01.796 regarding the historical uses of the money?

01:30 - 06.167 In other words, did West Chester University engage in any discovery

01:30 - 10.338 where they looked at your historical uses of the fees that were generated and said,

01:30 - 13.741 these weren't really for stormwater management, these were for programs

01:30 - 16.744 unrelated, which is what I think just as props is asking you.

01:30 - 17.512 Yeah.

01:30 - 20.515 Programs unrelated to stormwater management.

01:30 - 24.552 Because to me, instead of engaging in kind of a series of hypotheticals

01:30 - 27.488 that would be useful to the court and I guess to the trial court

01:30 - 30.758 for you to produce or somebody to pursue produce discovery regarding

01:30 - 34.762 when the fee was implemented and all of the uses of those particular fees,

01:30 - 38.433 because if I'm the university, I'm going to challenge the use on that basis.

01:30 - 39.133 Right? Yeah.

01:30 - 41.736 So there is discovery to that effect.

01:30 - 45.173 there are affidavits,

01:30 - 48.443 from the former director of public works at the Burrow.

01:30 - 51.412 There's an affidavit from the borough finance director.

01:30 - 54.182 there's deposition testimony from,

01:30 - 57.819 the university, from university employees, state system employees.

01:30 - 58.553 Excuse me.

01:30 - 01.956 there's deposition testimony from the borough manager.

01:31 - 07.328 but again, at the end of the day, we have a single comprehensive system

01:31 - 12.834 and no legal requirement, of which we are aware, that says you must spend

01:31 - 17.405 a dollar collected from this property owner only to benefit that property owner.

01:31 - 19.874 I'm not talking about property owners. I'm talking about general.

01:31 - 22.877 General uses if just as props and is talking about

01:31 - 26.214 kind of programs that are outside stormwater management, capital

01:31 - 28.583 expenditures, outside of stormwater management.

01:31 - 32.253 If I'm Westchester and I'm saying, well, this is kind of a tax as opposed to a fee,

01:31 - 35.723 you're going to argue the fee is only related to stormwater management.

01:31 - 37.091 I'm going to give examples.

01:31 - 40.761 If I'm the opposing counsel of historical uses of the moneys collected

01:31 - 44.832 for uses unrelated to the management of stormwater management.

01:31 - 45.766 You understand what I'm saying?

01:31 - 48.903 And that may well be an appropriate, Fact-Finding,

01:31 - 52.507 inquiry that the Commonwealth Court must conduct.

01:31 - 58.212 what is the use of each dollar or each tranche of dollars or for every year?

01:31 - 00.047 what was the money used for?

01:32 - 05.152 Again, our position is that, at the risk of belaboring it, is that we use

01:32 - 09.557 every dollar that is collected from the stormwater management fee.

01:32 - 15.162 I'm sorry, from the stream protection fee for, the stormwater management system.

01:32 - 17.565 That does not necessarily mean that

01:32 - 21.135 every dollar is used for the pipes in the ground.

01:32 - 22.937 The inlets in the road.

01:32 - 27.675 I'm not suggesting that, but, every dollar,

01:32 - 31.345 should be used for under the ordinance

01:32 - 36.517 should be used for stormwater related purposes for the purpose of

01:32 - 41.222 maintaining, constructing, maintaining, operating the system and related programs.

01:32 - 46.327 I was saying that the record, does not suggest otherwise.

01:32 - 50.331 We certainly do not believe the record suggests otherwise.

01:32 - 53.200 to the contrary, by the university or what?

01:32 - 55.937 I would you prefer that I use that particular question

01:32 - 58.072 to your opposing counsel? I'm sorry, Your Honor. Would you please.

01:32 - 01.175 Was there any evidence or suggestion or argument

01:33 - 04.612 made by the university that it was? Yes.

01:33 - 05.513 Yes, there is.

01:33 - 10.084 and that and that argument at at the risk of, taking mister of stealing

01:33 - 13.421 Mister Thunder, that argument, essentially

01:33 - 17.625 is that, there are, stormwater

01:33 - 21.796 infrastructure programs going on in other parts of the borough.

01:33 - 25.800 and how does that benefit the university?

01:33 - 27.602 But that's that's a different question.

01:33 - 28.970 I mean, there are two different questions.

01:33 - 32.873 Does the amount gathered in any way specifically benefit

01:33 - 36.811 the university or the second question, the amount gathered?

01:33 - 40.815 Is it solely used for stormwater management and repair purposes?

01:33 - 42.950 Now the second question is the one

01:33 - 46.454 I was pursuing, and I think you said there's no evidence.

01:33 - 49.957 Otherwise we don't think there's any other evidence otherwise.

01:33 - 55.796 Sort of a characterization of something not having to do with stormwater.

01:33 - 59.467 Somebody could stand up and say, well,

01:33 - 04.171 a rain garden, in the northwest northeast corner of town

01:34 - 08.442 is not a stormwater related program.

01:34 - 11.512 I would disagree with that, but they could say that that's not a fact.

01:34 - 13.781 I mean, they haven't established that.

01:34 - 14.615 I don't believe so.

01:34 - 16.651 I would, I would.

01:34 - 21.288 before we move on from this point, I like to draw an analogy,

01:34 - 24.592 to section 5607

01:34 - 27.595 of the Municipal Authorities Act and.

01:34 - 31.499 The Municipal Authorities Act, of course, at section

01:34 - 36.804 5607 has a very long list of powers of municipal authorities

01:34 - 40.574 and section D, nine of 5607

01:34 - 45.146 empowers the General Assembly empowered municipal authorities

01:34 - 49.316 to charge usage fees, which is essentially what we're talking about here

01:34 - 52.753 for the payment and expenses of the authority

01:34 - 56.557 the construction, maintenance, repair and improvement of sewer systems

01:34 - 59.593 treating the system.

01:34 - 02.596 Or if you're in a municipality that has sub sewer districts

01:35 - 05.700 treating the sub sewer district as a whole.

01:35 - 07.702 And again, I want to stress this.

01:35 - 10.705 I am aware of no legal requirement,

01:35 - 14.442 nor apparently is the General Assembly with regard to municipal authorities.

01:35 - 20.948 that says, you have to use the money adjacent to or on the property

01:35 - 25.252 of the fee payer, or you can use the money to fund the system.

01:35 - 31.659 So as I was saying, we

01:35 - 35.396 have, the undisputed fact that water flows into the system.

01:35 - 38.866 and of course, the Commonwealth Court,

01:35 - 42.636 held that that is not a benefit

01:35 - 46.707 before the Commonwealth Court.

01:35 - 50.411 The state system argued that it does not need

01:35 - 53.547 the borough's stormwater collection and conveyance system because

01:35 - 56.550 and I quote from their Commonwealth Court submission,

01:35 - 00.855 there is no reason the university could not simply convey

01:36 - 03.858 to stormwater to its properties edge

01:36 - 06.861 and discharge it there as it does now.

01:36 - 10.831 There are two problems with that logic.

01:36 - 11.899 Firstly, it's

01:36 - 14.969 legally incorrect, as I'll get to in just a moment with your indulgence.

01:36 - 20.808 And secondly, the as it does now is very telling because as it does

01:36 - 25.546 now, the borough collects that stormwater and conveys it away.

01:36 - 27.915 Now, why

01:36 - 30.885 is it legally incorrect that they couldn't do that?

01:36 - 36.123 There are at least four bases for the university, for the state system's

01:36 - 41.061 obligation to make sure that it doesn't just discharge stormwater

01:36 - 44.365 to its properties edge and what it flow from there.

01:36 - 48.135 Those are common law, statutory law,

01:36 - 51.138 constitutional law,

01:36 - 55.176 and the borough and the university's own Ms4 permit,

01:36 - 58.312 which I presume you will hear about in just a moment.

01:36 - 01.115 Under common law,

01:37 - 04.185 as early as the middle of the 19th century,

01:37 - 07.588 as far as we were able to discern, if not earlier,

01:37 - 12.226 it has been the law of this Commonwealth that you cannot alter

01:37 - 16.697 the natural flow of water coming off of your property in a manner

01:37 - 20.734 which is disadvantageous or adverse to your downstream property owners.

01:37 - 24.305 So we start with this very ancient, rule.

01:37 - 27.708 You can't just develop your property and say the heck with it.

01:37 - 30.778 You deal with the stormwater coming off of my property.

01:37 - 35.182 Statutorily, the Stormwater Management Act

01:37 - 38.552 proscribe or prescribes

01:37 - 42.089 the discharge of stormwater downstream in a manner

01:37 - 46.193 which is disadvantageous or adverse to downstream property owners.

01:37 - 50.130 This court is very well

01:37 - 53.133 familiar with the Environmental Rights Amendment.

01:37 - 57.638 I posit how an agency

01:37 - 02.109 or an instrumentality of the Commonwealth could take the position

01:38 - 06.680 that it could just discharge stormwater to its properties edge

01:38 - 09.884 and let it flow where it is want to flow.

01:38 - 13.487 And then finally, their ms4 permit

01:38 - 16.824 as a university, as an institution,

01:38 - 20.961 the West Chester University is required to have an Ms4 permit.

01:38 - 25.232 The testimony from some of which we saw in our brief

01:38 - 28.969 and the documentary evidence in this case, makes clear

01:38 - 34.141 that the university relies upon the burrow, stormwater

01:38 - 38.879 and collection system in order to comply with its ms4

01:38 - 42.683 with the university's Ms4 permit obligations.

01:38 - 47.421 In other words, they must have somewhere to discharge their stormwater

01:38 - 49.189 under their

01:38 - 53.527 own permit, which they argue is a reason to not find,

01:38 - 56.597 that they benefit from the university system.

01:38 - 00.401 But the very terms of that permit, or at least as described

01:39 - 05.205 by documentary and testament testimonial evidence, is predicated

01:39 - 09.843 that permit is predicated upon the existence of the burrow system.

01:39 - 13.814 So so we reach a conclusion here

01:39 - 16.817 on the benefits side of this analysis.

01:39 - 20.387 And I didn't really get to the three, prongs of the analysis,

01:39 - 23.390 but we have to identify is there a service and benefit

01:39 - 27.194 is the use of the service and benefit voluntary?

01:39 - 31.665 And is the fee proportional to the value of the service

01:39 - 36.236 or to the cost of providing service?

01:39 - 41.442 On the benefit side, we think it clear that the Commonwealth Court, in relying

01:39 - 46.280 upon a single trial court opinion from a from the Federal Claims

01:39 - 50.884 Court in DeKalb, in DeKalb, excuse me, in DeKalb County,

01:39 - 53.854 versus United States.

01:39 - 54.588 Got it wrong.

01:39 - 58.926 We just think that the Commonwealth Court got it wrong by not seeing,

01:39 - 02.329 the existence of the municipal stormwater system

01:40 - 05.499 as a benefit to the owner of a developed property.

01:40 - 09.970 Interestingly, before I move on to voluntariness,

01:40 - 12.773 the Commonwealth Court did not note,

01:40 - 15.776 even though they relied upon a 2013,

01:40 - 18.746 federal claims court decision,

01:40 - 23.684 they did not note the 2019 decision of the Fourth Circuit Court of Appeals

01:40 - 27.588 in Norfolk Southern versus city of Roanoke, where the Fourth Circuit,

01:40 - 32.493 held that stormwater fees are just that fees and not taxes.

01:40 - 35.896 Of course, this court's not bound by any of that.

01:40 - 38.799 With regard

01:40 - 42.903 to voluntariness, we know, the existence

01:40 - 46.473 of the credit program within the ordinance,

01:40 - 50.077 property owners may obtain a credit

01:40 - 53.547 against the stormwater management fee for

01:40 - 56.150 improvements to their own

01:40 - 59.319 properties, which reduce the amount of stormwater

01:40 - 01.221 which flows from their properties

01:41 - 04.425 or treats the stormwater before it leaves their properties.

01:41 - 07.428 Wow, that was an interesting point that you raised below.

01:41 - 11.865 How if you can't meter the stormwater,

01:41 - 15.302 you can't have a fee system that meters the stormwater

01:41 - 16.804 going into the drainage pipe.

01:41 - 20.107 How are they supposed to meter how much stormwater they can divert?

01:41 - 25.479 Well, the amount of stormwater which they

01:41 - 29.249 how can they matter how much they can divert it?

01:41 - 32.186 The credit program, Your Honor, does not look at,

01:41 - 35.389 how much volume has been diverted.

01:41 - 38.392 What it does is say, have you done things which,

01:41 - 43.397 because of good engineering, because of known engineering practices,

01:41 - 47.234 are known to reduce the volume of stormwater and other matters.

01:41 - 49.536 How great, no matter how small.

01:41 - 53.006 I don't know, Your Honor, and I apologize.

01:41 - 56.443 within defined radiations

01:41 - 59.446 within the, credit program.

01:41 - 00.881 But I can give an example.

01:42 - 03.917 Westchester University's, library,

01:42 - 08.088 the FH Green Library, has a green roof.

01:42 - 10.557 If the university

01:42 - 14.328 came to the borough and said we have a green roof.

01:42 - 15.562 And by the way,

01:42 - 19.566 they do an awful lot of other really good environmental things on campus.

01:42 - 22.736 but they if they were to come to the borough

01:42 - 25.973 and say we're doing all of these things, including our green roof,

01:42 - 29.576 we deserve a credit against our fee,

01:42 - 33.947 I imagine that would lead to a rather substantial reduction of the fee.

01:42 - 37.784 I guess that's my question, is how how do you calculate that,

01:42 - 41.155 the appeals manual, has the.

01:42 - 46.226 It field manual has,

01:42 - 49.096 the methods for calculating that.

01:42 - 53.433 I don't believe it's just willy nilly discretion, for the borough manager

01:42 - 56.103 to decide how much of a well, so for example,

01:42 - 59.907 your fee is based on impervious surface, and then you have a multiplier, right?

01:42 - 04.211 Yes. So I would expect, I mean, if the field manholes in the record,

01:43 - 08.215 I look at it that the credit system is also based on impervious surface.

01:43 - 10.350 Yes. There are

01:43 - 13.353 calculations in the appeal manual.

01:43 - 17.257 so on page and this

01:43 - 21.428 the appeal manual runs from page 1915, a

01:43 - 24.965 including the actual application and the appendices,

01:43 - 28.235 to page 1981, a.

01:43 - 34.441 And just flipping to page 1930, a

01:43 - 39.346 there is a section entitled Calculation of Nonresident credits.

01:43 - 43.483 and if I could read the calculation for whatever that's worth,

01:43 - 49.022 stream protection fee credit, SPF credit equals treated impervious area

01:43 - 52.993 divided by 1000 times credit percent by type

01:43 - 56.697 times stream protection fee.

01:43 - 59.666 So there is a formula there.

01:43 - 03.003 it's not just but it's based on

01:44 - 07.507 it's based on the size of what was previously impervious surface

01:44 - 10.744 versus what they've either,

01:44 - 12.879 versus

01:44 - 16.817 the amount of, treatment or volume reduction

01:44 - 21.355 through various BMPs, that the best management practices that they're able to.

01:44 - 23.557 Wouldn't that just be a reduction in impervious surface?

01:44 - 27.761 If I have a 50,000 or 100,000 square foot asphalt roof that's impervious

01:44 - 30.764 surface, I'm going to pay a fee based upon the impervious surface.

01:44 - 32.165 If I put a green roof on there

01:44 - 36.570 on, I just reducing my impervious surface and thereby reducing the fee. Yes.

01:44 - 39.573 So there are both credits and appeals.

01:44 - 41.508 within the program.

01:44 - 45.078 And if you can demonstrate that the other words,

01:44 - 46.913 they've got a big parking lot out there, right.

01:44 - 49.850 That's part of the impervious surface as part of the fees calculation,

01:44 - 51.885 if they ripped up the parking lot and put grass down,

01:44 - 53.687 it would reduce the impervious surface, right?

01:44 - 56.356 Absolutely. Your honor, that would then go down. That's correct. So.

01:44 - 01.995 So the amount of impervious surface, that's used in the first instance

01:45 - 06.300 to calculate the fee is taken from Chester County GIS data.

01:45 - 08.769 And that's always subject to kind of recalculation.

01:45 - 10.304 If a yes you're on. Absolutely.

01:45 - 14.975 If a property owner, comes to the burrow and says those data are wrong,

01:45 - 19.746 the county's GIS is wrong, that doesn't capture the fact that last year I,

01:45 - 25.485 ripped up my swimming pool and returned my backyard to the entire green area.

01:45 - 28.789 Then that would lead to a recalculation.

01:45 - 32.159 Mr. Gill, you've been doing a great job

01:45 - 35.562 answering all these questions, but I think we've got the case.

01:45 - 37.464 Unless there are other questions.

01:45 - 41.702 I lost the connection of the the, responses

01:45 - 44.404 you were giving to my colleagues. in the last couple moments.

01:45 - 46.873 Were they?

01:45 - 47.674 Is there a tie?

01:45 - 50.610 B is there a connection to the concept of voluntariness?

01:45 - 52.646 Because you you were talking about voluntariness

01:45 - 55.482 and then you got a question and I, I lost the connection. Thank.

01:45 - 56.350 Thank you, Your Honor.

01:45 - 59.353 for allowing me to return to voluntariness.

01:45 - 04.024 as I said, the state system could reduce its fee.

01:46 - 07.427 and if the state system

01:46 - 12.833 demonstrated that it discharges its stormwater outside of the burrow,

01:46 - 17.137 under a change to the appeals program, which did happen

01:46 - 20.140 during the pendency of this case, I wanted to be clear about that.

01:46 - 24.911 then they could, eliminate the stream protection fee altogether.

01:46 - 26.146 I do want to.

01:46 - 29.149 In all candor, I do want to make the court aware,

01:46 - 33.553 that there is a what appears to be an inconsistency.

01:46 - 37.157 language was added to the appeal manual,

01:46 - 41.895 after the commencement of this case, to say if you drain outside of the burrow,

01:46 - 46.266 you are not a developed property and you don't pay the fee.

01:46 - 50.303 There still is language in this manual which caps,

01:46 - 53.740 the reduction at 60%.

01:46 - 59.646 and that language, I believe as I stand here today, that is an oversight.

01:46 - 03.717 It would certainly be my advice to my client that if you demonstrate

01:47 - 06.887 that you that you drain entirely outside of the burrow, in other words,

01:47 - 08.989 you don't rely upon the burrow system.

01:47 - 10.690 I'm sorry to interrupt.

01:47 - 12.592 Just just, conceptualize that.

01:47 - 19.032 Would it be akin to, I, I opt out of my municipal trash

01:47 - 22.068 collection because I'm going to take it to some dump somewhere,

01:47 - 26.773 and I established that to get out of the fee or, I,

01:47 - 29.776 I put it in a septic plant

01:47 - 33.046 on my own property, so I'm not tapping into the sewer system.

01:47 - 37.317 I think that is a very apt analogy.

01:47 - 42.055 without getting into the weeds on what act 537 would

01:47 - 45.058 or would not allow you to do from a sanitary sewer perspective?

01:47 - 47.394 I think that's a very apt analogy.

01:47 - 49.696 Okay. Can I just follow up real quickly on that one point?

01:47 - 55.302 You said a discharge outside the burrow or outside the burrow system,

01:47 - 59.639 the or the the appeal manual says

01:48 - 02.275 I don't want you.

01:48 - 04.211 You said that you quoted outside the borough.

01:48 - 08.081 Are you suggesting that if they were able to get,

01:48 - 13.320 a discharge permit for an on site system that discharged into a stream,

01:48 - 16.957 you consider the stream part of the burrow system?

01:48 - 20.026 No, I my interpretation of that

01:48 - 24.764 and that is the that that is exactly the situation

01:48 - 28.502 that the Burrows expert contemplated for their expert report.

01:48 - 31.505 Would that be would be that the university builds its own collection

01:48 - 35.475 and conveyance system and then discharges directly to a receiving watercourse?

01:48 - 37.644 That receiving watercourse could be in the borough?

01:48 - 41.648 It could be, but not part of that would not be part of the burrow system.

01:48 - 43.517 I just wanted to clarify, I think.

01:48 - 43.850 All right.

01:48 - 46.186 Are there any other final questions?

01:48 - 47.854 you can wrap up if you'd like. Mr..

01:48 - 50.724 Thank you, Your Honor. I do just want to,

01:48 - 55.362 touch on that issue of proportionality,

01:48 - 59.599 which I didn't get any questions on, but if I may,

01:49 - 03.537 Justice Robinson,

01:49 - 07.207 in 2015 wrote in at the Commonwealth Court in

01:49 - 10.944 GSP management company versus Duncanville municipal Authority.

01:49 - 16.583 and I'm paraphrasing, that precise proportionality is not required.

01:49 - 21.288 It is not it is not the borough's obligation to show

01:49 - 24.791 that we are using every single

01:49 - 27.794 dollar of the,

01:49 - 32.332 of the stream protection fee, for stormwater management purposes

01:49 - 37.470 at this particular property, so long as there is some reasonable relationship

01:49 - 40.507 between the cost of maintaining the service

01:49 - 44.411 for all customers and the customers,

01:49 - 48.248 challenging the rates received some benefit from the system.

01:49 - 51.284 Proportionality is met there.

01:49 - 53.253 Then, of course, is the underlying question

01:49 - 56.756 which the Commonwealth Court directly addressed of the use

01:49 - 59.759 of impervious surface as a proxy.

01:50 - 04.130 we know of no other means

01:50 - 09.436 by which municipalities or municipal authorities can establish

01:50 - 14.641 the volume of use or the scope of use of a municipal stormwater system.

01:50 - 20.013 We know, from various Commonwealth pronouncements,

01:50 - 24.584 including chapter 102 of title 25, the Environmental Code.

01:50 - 28.922 we know that the Commonwealth sees a direct relationship

01:50 - 31.992 between impervious surface and stormwater runoff.

01:50 - 35.795 so again, we think, respectfully, the Commonwealth Court

01:50 - 39.199 just got it wrong in saying that there is no relationship

01:50 - 43.036 between impervious surface and stormwater runoff.

01:50 - 44.704 Okay. Thank you, Mr. Go.

01:50 - 46.406 We understand your argument,

01:50 - 49.409 and I believe you made it as interesting as was possible.

01:50 - 50.577 Thank you. Here on.

01:50 - 56.116 Do we get any better than this?

01:50 - 59.319 I'm sorry.

01:51 - 03.289 Yeah.

01:51 - 04.591 Thank you, Madam Chief Justice.

01:51 - 06.660 And may it please the court. My name is Steven Covert.

01:51 - 09.329 Us and I represent the state system

01:51 - 12.265 of higher education in West Chester University, who I'll refer

01:51 - 15.602 to collectively today, hopefully just as the university, because I know

01:51 - 18.872 West Chester might not be as helpful given the parties in the case.

01:51 - 24.010 counsel, before you get started, I have a very short attention span.

01:51 - 27.514 Could you answer the question that I asked your opponent?

01:51 - 30.383 And I said I was going to reserve it for you regarding whether or not

01:51 - 32.519 there was any discovery on the uses

01:51 - 36.289 and any argument by the university that the monies that were collected under

01:51 - 40.794 this fee were being used for purposes other than stormwater management.

01:51 - 44.998 Yes, there was discovery, and that is a core issue in the case.

01:51 - 45.899 So the case began

01:51 - 48.535 and preliminary objections and the Commonwealth Court

01:51 - 49.936 had a lot of the same questions

01:51 - 54.007 that, Your Honor, that the court did about what exactly the fund is being used for.

01:51 - 56.776 And that was the focus of the discovery in the case.

01:51 - 59.446 And what discovery and again, what discovery?

01:51 - 03.917 revealed and not, you don't have to go through it

01:52 - 04.718 line by line.

01:52 - 06.186 Well, you can point to the reproduce record

01:52 - 07.620 where it is because I didn't see it.

01:52 - 10.156 Well, it's the focus would be the Perone deposition.

01:52 - 11.891 that's where we point to in our papers.

01:52 - 13.159 That's the borough manager, Mr.

01:52 - 16.229 Perone deposition and the reproduce record at page 1250,

01:52 - 19.933 beginning of page 1250, where Mr.

01:52 - 23.470 Perone was asked about the the representative of the borough was asked

01:52 - 27.173 about what the projects would be used for, and he described the various projects,

01:52 - 32.245 the the park improvements, including that would include

01:52 - 36.549 pervious paving, tree planning, storm sewer improvements to that park.

01:52 - 38.785 This is about a mile north of campus.

01:52 - 42.322 there are other projects like tree planting and street sweeping.

01:52 - 44.691 So they would plant trees along roadways.

01:52 - 48.795 They would sweep away, leaves and trash that would collect on storm

01:52 - 49.996 sewers, planting

01:52 - 54.000 rain gardens that the collection areas that you see that have big plants in them

01:52 - 57.971 that are designed to cut in times of high rain, collect that water.

01:52 - 01.841 that these are not related to stormwater management?

01:53 - 06.045 No. The contention here and this goes to the legal question here.

01:53 - 09.149 So these are certainly related to stormwater management.

01:53 - 10.683 And there is no dispute in this case

01:53 - 13.686 that the projects that are being used are broadly as,

01:53 - 17.624 as just as Robson pointed out earlier, everything that they're using the fund for

01:53 - 20.627 is broadly related to the concept of stormwater management.

01:53 - 22.695 But that's not the legal question here.

01:53 - 25.665 The legal question is

01:53 - 28.368 whether there is a fee for service, whether this can be

01:53 - 32.205 categorized as a fee for service or whether it's something else.

01:53 - 35.375 Why is it any different from the trash

01:53 - 39.012 removal and sewer tap, scenarios?

01:53 - 41.848 I asked your opposing counsel about it.

01:53 - 43.817 It is very different from a trash removal

01:53 - 45.885 because of the projects that are being paid for.

01:53 - 48.788 So I think we we separate.

01:53 - 53.059 The borough's stormwater system has existed for 100 years, over 100 years.

01:53 - 57.163 And it is in that if if the charge were to convey water,

01:53 - 02.035 if this were simply a user fee, as as was posited to convey water,

01:54 - 06.072 that's not what this fund is being used for there.

01:54 - 07.240 So how could it be?

01:54 - 10.243 How could it be limited to that since it can't be metered?

01:54 - 11.978 That is certainly a problem.

01:54 - 13.780 It can't be metered, it can't be measured in that way.

01:54 - 15.915 But that's also not what the fund is paying for.

01:54 - 18.251 It's not paying for the upkeep.

01:54 - 22.856 I, the borough manager, is asked directly, is there any intention over the next,

01:54 - 27.160 I believe, decade to use this money to build

01:54 - 30.196 or even maintain the actual piping system?

01:54 - 31.564 And he said, no,

01:54 - 34.567 they're instead, this money is being used for these other projects.

01:54 - 39.873 These other projects are, they are for a general environmental benefit.

01:54 - 42.375 And as as my friend.

01:54 - 44.577 So I explored this with,

01:54 - 47.480 with, the borough council,

01:54 - 53.419 that's really how you defined the, system.

01:54 - 57.023 If you define the system purely by the pipes

01:54 - 00.026 and the drains, then,

01:55 - 03.863 you know, your your fee should be appropriately used

01:55 - 07.634 to maintain the pipes in the drains, which is what you use.

01:55 - 11.838 But if you define the stormwater system

01:55 - 15.441 more broadly to include everything

01:55 - 19.779 that the borough does to manage what goes into the drains

01:55 - 22.849 and the pipes to alleviate

01:55 - 25.852 what goes into those discharge sources,

01:55 - 31.391 then then you have an obligation to pay for a portion of the cost

01:55 - 34.627 of the entire system, including those,

01:55 - 37.630 portions of the system that,

01:55 - 41.401 ameliorate discharge into the pipes.

01:55 - 45.238 What Your Honor is describing is a classic tax, or that's

01:55 - 47.507 that would be true of an average property

01:55 - 49.275 owner of your average private, every private,

01:55 - 51.945 every private property owner of developed property is paying this.

01:55 - 53.513 That's exactly right.

01:55 - 57.016 The the the core legal issue in the case is whether this is a tax

01:55 - 59.719 or whether it's a fee for service, because what what Your Honor,

01:55 - 03.823 just described as is why we have tax or at the very least a regulatory fee.

01:56 - 07.660 And this is not the borough is not argued that this is a regulatory fee,

01:56 - 10.096 because they know that they don't have the authority,

01:56 - 12.198 because we're dealing with a Commonwealth entity,

01:56 - 14.867 they cannot impose a regulatory fee on the Commonwealth entity.

01:56 - 18.237 And in fact, this is the key distinction.

01:56 - 21.975 My friend brought up the DeKalb County case versus the Norfolk Southern case.

01:56 - 25.545 The key distinction between those two cases is DeKalb County

01:56 - 28.815 involved a county who was trying to impose a fee on the United States.

01:56 - 32.518 There was no regulatory authority in that case,

01:56 - 35.188 so it had to be a fee for service, as this court

01:56 - 38.825 has previously categorized it, a quasi contract arrangement.

01:56 - 43.262 So the state only has to pay when we're talking about a quasi contract

01:56 - 46.265 arrangement like Justice Wecht, trash pickup.

01:56 - 50.703 however, and in DeKalb County, what the court said was

01:56 - 53.973 because we're talking about a county imposing a something, a charge

01:56 - 59.145 on the United States of America, it has to be in that fee for service.

01:56 - 03.683 And it is not that as opposed to the Norfolk Southern case, the court

01:57 - 07.887 there was dealing with a private party who is not who didn't have that who

01:57 - 12.558 and said it says explicitly in that case that there is regulatory authority here.

01:57 - 17.497 So it can be imposed as a regulatory fee that the court should put that aside here,

01:57 - 19.665 because it's not an issue in this case that was breached.

01:57 - 23.236 There's no contention that this could be charged as a regulatory fee.

01:57 - 27.874 The question is usage and again, I come back to the actual with the record.

01:57 - 29.976 As justice McCaffery is pointed out,

01:57 - 33.079 the what the record here has actually shown the uses.

01:57 - 36.749 So for example, let's talk about the rain basins.

01:57 - 40.153 Why do we have those rain basins, why are they being built?

01:57 - 44.257 And the reason isn't to manage the stormwater

01:57 - 47.427 in the sense of, to help convey it to a water watercourse.

01:57 - 50.763 The reason is because it provides an environmental benefit.

01:57 - 51.964 Well, it the reason is

01:57 - 52.965 the reason is because it's

01:57 - 55.735 going to reduce the amount of money that goes into the reduce

01:57 - 58.071 the amount of stormwater that goes into the pipes.

01:57 - 00.206 It reduces the amount of right, which doesn't

01:58 - 02.875 that doesn't affect the pipes themselves. The it does.

01:58 - 07.380 It makes the pipes last longer, less water flowing through, less deterioration.

01:58 - 10.817 There's certainly nothing in the record about that, that that's the reason

01:58 - 12.318 for the deterioration of pipes.

01:58 - 15.154 The issue is the deterioration of the end watercourse.

01:58 - 18.157 So they want to have less water with less pollutants

01:58 - 21.661 and less speed in that, in that receding watercourse. So

01:58 - 24.130 I'm not

01:58 - 27.133 I mean, I guess I'm not viewing this,

01:58 - 32.205 perhaps through the proper lens, but why is it not a discrete benefit,

01:58 - 37.477 rather than ones to be spread across all taxpayers,

01:58 - 41.747 for you to be assessed based on the amount of your impervious area,

01:58 - 45.017 and similarly, landowners in the borough to be assessed

01:58 - 47.987 based on the amount of their impervious area,

01:58 - 52.058 as opposed to taxpayers who have no impervious area.

01:58 - 55.962 Because we're the Commonwealth, and because that's the issue here, is

01:58 - 57.797 whether this should be imposed on the Commonwealth.

01:58 - 00.766 What Your Honor just described would be the same argument as to

01:59 - 04.370 why the Commonwealth should have to pay property tax to fund schools. Why?

01:59 - 10.042 Why should a, a university, a state university,

01:59 - 13.846 a state building, be exempt from property tax for paying for schools?

01:59 - 18.718 Why should a courthouse be exempt from property tax in order to pay for schools?

01:59 - 22.555 And the reason is because with the court as well developed the concept of immunity

01:59 - 25.992 and tied to the alteration of the natural environment

01:59 - 29.929 that you, the property taxes is tied to the value of the property.

01:59 - 33.900 So there's the value of the property and and it's similar in the respect

01:59 - 36.903 that we assess a property tax in order to pay for schools.

01:59 - 39.939 And we assessed that property tax equally on.

01:59 - 44.377 Regardless, I dropped my kids off at Philadelphia Public Schools

01:59 - 47.747 this morning, and I get assessed the same property tax as others.

01:59 - 51.584 So there is no question that I derive an individual benefit.

01:59 - 53.619 I send my kids to Philadelphia public schools.

01:59 - 55.388 I derive a personal benefit.

01:59 - 56.622 That's not the question.

01:59 - 59.458 The question is why this system exists in the first place.

01:59 - 04.730 And the reason that we fund schools through tax, through property

02:00 - 07.767 taxes, is because everybody benefits from good public schools.

02:00 - 10.503 Whether you have children, had children, don't have children.

02:00 - 11.837 Everybody benefits from it.

02:00 - 15.741 What is the what is the test that you want this court

02:00 - 20.146 to use to make the determination of whether the the.

02:00 - 24.917 The projects that are being funded

02:00 - 28.754 by the moneys paid toward the storm system

02:00 - 32.158 have a close enough nexus

02:00 - 37.263 to the operation of the storm system to be considered versus

02:00 - 40.833 what I think you're describing is those projects

02:00 - 45.605 that have some attenuated nexus, but are more in the,

02:00 - 49.675 range of a,

02:00 - 51.711 environmental

02:00 - 55.081 good thing to do for all the neighbors of the community.

02:00 - 56.015 Are you

02:00 - 57.783 I mean, to follow up on that, are you suggesting that

02:00 - 00.786 we apply the three part framework from San Juan Celular?

02:01 - 03.089 I certainly,

02:01 - 06.092 I think that that's part of it, but I think there's an initial test here,

02:01 - 10.396 and I think it's right there in the name fee for service, a three part test.

02:01 - 13.065 Number one, there's a fee which is not challenged here.

02:01 - 14.567 There's a charge of some kind.

02:01 - 17.503 Number two, that there is a service, that there's

02:01 - 20.840 an individual discreet private service rendered.

02:01 - 24.443 And number three, that the charge is related to the service

02:01 - 25.745 that's being provided.

02:01 - 29.582 And as I think let me start on that last part as why

02:01 - 34.553 I think the borough's argument fails here as as my friend began his argument

02:01 - 37.556 by saying the they develop this multiplier,

02:01 - 41.027 this this particular ordinance was developed as a multiplier using

02:01 - 45.197 reverse engineering, looking back on what future projects they wanted to fund.

02:01 - 49.335 So it's not the fund was not designed

02:01 - 54.340 to improve or provide more service, more more water,

02:01 - 59.312 or to build a system of conveying water to a to a waterway.

02:01 - 04.050 It was designed to provide greater environmental benefits, infrastructure

02:02 - 07.753 developments along those, and environmental benefits along the way.

02:02 - 09.255 And in fact,

02:02 - 13.559 if it had been designed the other way, if it was, well, we want you to pay.

02:02 - 17.396 We think property owners should pay based on impervious service

02:02 - 20.733 for the construction of a storm sewer system.

02:02 - 26.872 What we walk into is the exact situation in the Southwest Delaware County case,

02:02 - 31.877 where this court held about 80 years ago, that a front foot assessment

02:02 - 37.183 for the construction of a storm, a I'm sorry, a sanitary sewer system was a tax

02:02 - 40.786 could not be imposed on a public entity.

02:02 - 45.691 So either way that they frame it, they walk right into the immunity problem.

02:02 - 49.195 And again, the issue, the the immunity issue here

02:02 - 53.432 is, is why this is different than the average property owner.

02:02 - 55.668 We're not standing here is the average property owner.

02:02 - 59.271 And what makes us different is because the Commonwealth has other ways

02:02 - 00.272 to fund these things.

02:03 - 04.910 But but what makes this different than, a storm than a gray,

02:03 - 06.078 what it would take away, it makes it different

02:03 - 09.715 from a great water system or, or a public water system.

02:03 - 12.818 What? Why is storm water different

02:03 - 16.689 in kind from a sewer, a

02:03 - 19.692 municipal sewer system, and a municipal water system?

02:03 - 23.262 It. Well, first of all, those can be metered.

02:03 - 23.662 And they are,

02:03 - 27.133 you know, I have a meter at my house to measure the water that that comes in.

02:03 - 29.435 It fails because then you say you can't.

02:03 - 31.771 That argument doesn't help me because then you're basically the same.

02:03 - 34.774 Metering is the rule. But and

02:03 - 38.711 which, which you agree can't be metered and you say because it can't be metered,

02:03 - 41.714 they can't collect a fee for the service.

02:03 - 44.583 Because it can't be metered.

02:03 - 46.652 What what can't be meter?

02:03 - 48.053 Here is the benefit.

02:03 - 52.258 Let me correct the meter thing structurally and the way

02:03 - 55.661 municipalities run water and sewer systems.

02:03 - 58.697 How is the way the municipality here

02:03 - 02.067 runs their stormwater system system different?

02:04 - 05.171 That makes those fine in terms of fees.

02:04 - 09.208 But this one bad is just metering because the for example, water.

02:04 - 13.045 There's an individualized benefit to water that I receive at my house.

02:04 - 15.915 I there's a quasi contract arrangement there.

02:04 - 19.385 When I agree, when I open up the spigot of my house to bring in water,

02:04 - 21.587 I agree to pay for that water in the amount.

02:04 - 25.291 Also, you also agree to pay a charge regardless of how much water you draw.

02:04 - 26.525 Most.

02:04 - 31.230 Most water systems have a flat fee just to have the system available to you.

02:04 - 38.137 Same thing for sewer at again, and I think a lot of these things you can look at,

02:04 - 42.308 there are always collective benefits and individual benefits to everything.

02:04 - 42.942 Correct.

02:04 - 48.147 So but we've got to put these into buckets or else or else there's no line at all.

02:04 - 53.018 So certainly as I mentioned there's individual benefits to a property tax

02:04 - 53.953 that I get.

02:04 - 57.022 But that doesn't make it in say you derive no individual

02:04 - 00.025 benefit from being able to access the stormwater system for the borough.

02:05 - 00.759 Absolutely not.

02:05 - 03.362 There are individual benefits, but on the whole,

02:05 - 05.030 the system is designed for the collective good.

02:05 - 08.267 It's designed for general environmental benefit, different from a public water

02:05 - 10.436 or public sewer system, because at its core,

02:05 - 14.607 when I drop water, I'm I'm bringing in water for my personal use.

02:05 - 16.242 I decide how much water there is.

02:05 - 17.710 I agree to pay for that water.

02:05 - 20.012 I do pay for that water at the end of the month,

02:05 - 23.349 when you tap into the borough system, you agreed to use the borough system

02:05 - 26.352 for discharging your stormwater for purposes of your permit,

02:05 - 29.188 you could have chosen not to have completely control

02:05 - 33.292 over doing other impervious surface modifications to reduce your fee, but

02:05 - 37.997 you are choosing to access and have chosen to access the borough system,

02:05 - 40.833 which is not unlike choosing

02:05 - 43.836 to tap into the public water system or the public sewer system.

02:05 - 46.605 First, again,

02:05 - 50.242 I don't believe that that's what this fee is charging for.

02:05 - 52.077 It's not charging a user fee for use.

02:05 - 56.415 It's charging a fee to pay for environmental improvements

02:05 - 58.384 along that system.

02:05 - 01.654 But additionally, the,

02:06 - 06.158 but there are environmental movements to there are environmental improvements

02:06 - 09.161 to sewage systems, their environmental improvements to water. I'm

02:06 - 14.500 you haven't yet given me any distinction between treating stormwater

02:06 - 17.503 differently from gray water and public water,

02:06 - 22.908 because stormwater when I when I bring in public water,

02:06 - 26.245 I'm charged for it because and I'm charged based on a contract basis,

02:06 - 27.613 I can turn my spigot off.

02:06 - 30.282 I can get water from a different source. I can get, well, water.

02:06 - 32.685 There are voluntary choices that go in here.

02:06 - 33.586 We're talking about rain.

02:06 - 35.354 We're talking about something that happens

02:06 - 39.191 that falls on the surface and that travels and collects and, and,

02:06 - 42.995 and we have a collective rain as a collective problem.

02:06 - 46.665 Managing a managing rainwater is a collective problem.

02:06 - 49.635 It's a societal. It's more of a governmental function.

02:06 - 52.638 But you chose your client, chose

02:06 - 57.576 to deal with your water problem by tapping in to the burrow system.

02:06 - 59.712 Well, you chose that.

02:06 - 01.914 You could have done something different.

02:07 - 04.850 Do they have an obligation to let you tie into that system?

02:07 - 05.651 No, that we

02:07 - 08.954 could not have chosen anything different because rain falls and inevitably

02:07 - 12.491 leaves it inevitably travels.

02:07 - 14.193 What have your own system?

02:07 - 14.960 That's right.

02:07 - 18.464 That's the two discrete benefits.

02:07 - 21.900 So if and thank you justice.

02:07 - 24.970 That was my next point, which is I think what Justice

02:07 - 27.973 Rothman referencing is the ms4 here.

02:07 - 32.444 That's not what's being charged for, because if it was,

02:07 - 35.547 the university would be treated differently than everybody else

02:07 - 39.952 because we're the only entity, I believe, in the borough that has its own ms4.

02:07 - 44.156 So if it were true that this was a fee for service, that we were going to charge

02:07 - 47.159 for relying on us in the ms4,

02:07 - 50.996 that's not what the way this is structured, that's not what this is.

02:07 - 53.966 Whether or not it could be designed that way is a wholly separate

02:07 - 57.136 question that would have to be done and then litigated separately.

02:07 - 58.203 But that's not what this is.

02:07 - 01.740 This is not being charged is not no connection charge for an Ms4.

02:08 - 05.611 because if it were, only the university would be paying what

02:08 - 09.014 I think what I think you're saying, if I understand your argument and

02:08 - 14.086 I think you're making it very well as unlike a water and a sewer system,

02:08 - 18.457 this system doesn't exist specifically for you.

02:08 - 22.561 You are taking advantage of it. but

02:08 - 26.865 but it's a it's a it's it's not a system.

02:08 - 29.301 You you don't believe. It's a system you tap into.

02:08 - 32.371 You don't have any kind of contract with them for them to provide it to you

02:08 - 33.238 or not.

02:08 - 36.675 It's something they do to manage stormwater within the borough.

02:08 - 39.778 And everybody has a right to use

02:08 - 43.382 that burrow stormwater system without being charged that.

02:08 - 44.583 That's exactly right, Your Honor.

02:08 - 48.387 Why do I use water for my own personal benefit?

02:08 - 53.592 But why does this system exist to channel and clean

02:08 - 57.262 and slow down the water, to prevent erosion, to

02:08 - 01.633 to provide cleaner water, to provide more general environmental benefits.

02:09 - 04.636 That's what makes this different than the water line coming into my house,

02:09 - 06.905 where I use it for my own personal benefit.

02:09 - 10.342 If I go on vacation, I can turn it away and I turn it off and I don't pay for it

02:09 - 11.210 here.

02:09 - 13.579 If it if we have a drought, we're still paying for it

02:09 - 15.714 because there are still improvements that have to be made.

02:09 - 18.517 Because really, at its core, this is an infrastructure project.

02:09 - 21.286 You've both made, very persuasive arguments.

02:09 - 24.256 Are there any other questions at this time?

02:09 - 26.024 All right. I'd ask you to sum up.

02:09 - 30.028 Or say goodbye

02:09 - 31.997 with that, Your Honor, we would just ask that this court

02:09 - 33.966 affirm the decision of the Commonwealth Court.

02:09 - 36.969 All right. Thank you. Thank you.

02:09 - 40.239 We're not job.

02:09 - 45.744 The next case

02:09 - 49.581 the court will hear argument on is Jennifer GQ versus soft

02:09 - 53.018 pretzel franchise worker's compensation appeal board.

02:09 - 57.623 When a person is injured on the job, they are usually entitled to worker's

02:09 - 01.460 compensation benefits pursuant to the Worker's Compensation Act.

02:10 - 06.365 This act includes specific methods for calculating the amount of wages

02:10 - 10.769 per week an individual is entitled to based on a variety of factors,

02:10 - 14.173 including the severity of the injury, the body part injured,

02:10 - 18.644 and the length of time that injury causes the person to be disabled from work.

02:10 - 23.515 In this case, miss Jack, who suffered the amputation of her right forearm

02:10 - 27.653 after it was crushed in a pretzel machine while she was working for

02:10 - 29.788 Soft Pretzel franchise.

02:10 - 33.158 The injury caused Miss Jakku to be disabled from her employment

02:10 - 37.896 at Soft Pretzel franchise, and also from a second job she was working at gap.

02:10 - 43.101 As a result of her injury and subsequent disability, miss Jack, who received

02:10 - 48.740 worker's compensation benefits in the amount of $289.85 per week.

02:10 - 52.477 This amount took into consideration both of her jobs,

02:10 - 58.150 and was calculated pursuant to section 306A of the Worker's Compensation Act.

02:10 - 02.921 Miss Jack, who argued to the Worker's Compensation Judge that her benefits

02:11 - 07.960 should have actually been calculated under section 306 C 25,

02:11 - 13.732 which would have amounted to $540.50 per week in wage benefits.

02:11 - 17.736 The Commonwealth Court, in a 4 to 3 decision, held

02:11 - 21.340 that star decisis demanded that prior case all be followed,

02:11 - 26.144 which mandated that section 306A be used to calculate her benefits.

02:11 - 29.648 The Pennsylvania Supreme Court is now being asked

02:11 - 33.051 by Miss Jakku to find that she is entitled to benefits.

02:11 - 38.190 Per section 306, C 25 and that method of calculation.

02:11 - 41.827 I know I said I in on this point.

02:11 - 44.663 They were in court.

02:11 - 45.764 All right.

02:11 - 49.501 In this case, the claimant in this worker's compensation

02:11 - 52.804 matter was injured in the scope of her employment,

02:11 - 57.042 resulting in the amputation of her forearm.

02:11 - 02.514 While it was undisputed that the claimant was entitled to specific loss benefits

02:12 - 06.385 under the worker's Compensation Act, the parties disagreed

02:12 - 10.856 as to which provision of the act sets forth the proper rate

02:12 - 14.192 for calculating those benefits, finding itself

02:12 - 17.329 bound by the Commonwealth Court's 1980

02:12 - 22.401 decision and Walton versus Cooper, which held that the General Assembly

02:12 - 25.704 intends to treat total disability benefits

02:12 - 29.007 and specific loss benefits identically.

02:12 - 33.679 The Worker's Compensation Judge applied the schedule of compensation

02:12 - 37.149 for total disability benefits in section

02:12 - 40.152 306, of the Act.

02:12 - 44.323 The Commonwealth Court agreed in a divided decision,

02:12 - 50.228 opining that star decisis required it to follow the prior decision.

02:12 - 55.734 In Walton, the dissenting opinion found that under the Statutes Plain language,

02:12 - 02.407 the rates set forth in section 360 be applied to calculate

02:13 - 05.877 the claimant's specific loss benefits, and Walton,

02:13 - 09.715 which held to the contrary, was wrongly decided.

02:13 - 14.286 We granted allowance of appeal to determine which provision in the act

02:13 - 19.691 sets forth the proper rate to calculate the claimant's specific loss benefits.

02:13 - 20.826 Please proceed.

02:13 - 23.228 Madam

02:13 - 27.132 Chief Justice Justices, may I please the court?

02:13 - 29.134 My name is Joseph Primm.

02:13 - 32.471 I represent Jennifer Jak2, my co-counsel.

02:13 - 35.741 So George Beatty is present as well.

02:13 - 42.881 So this matter really involves

02:13 - 46.151 the question of the separation of powers

02:13 - 49.087 in our governmental system.

02:13 - 53.091 The legislature writes the statute, the,

02:13 - 57.896 judiciary takes the facts

02:13 - 01.199 and applies the law to those facts to make determinations.

02:14 - 05.203 And if the statute is unclear,

02:14 - 09.674 then it will interpret the language of the statute

02:14 - 13.345 to try to understand what the legislative

02:14 - 16.348 intent is.

02:14 - 19.451 In 1980,

02:14 - 22.721 as Chief Justice indicated,

02:14 - 26.825 a three judge panel of the Commonwealth Court determined

02:14 - 33.331 that they needed to rewrite the actual language of the statute

02:14 - 38.170 in order to achieve what they believed was the legislative intent.

02:14 - 42.774 This was not something that was argued to them,

02:14 - 48.447 and there's nothing in either the briefs or the decision which should

02:14 - 52.350 which would show that they investigated the legislative intent.

02:14 - 57.089 So the Workers Compensation

02:14 - 00.892 Act is a complex, voluminous act.

02:15 - 04.429 And but there are four basic

02:15 - 07.432 schedules of benefits.

02:15 - 10.035 There's, benefits

02:15 - 13.271 for medical benefits under section 300,

02:15 - 16.875 six of those federal claim benefits

02:15 - 20.245 under section 307, disability

02:15 - 25.884 benefits under section 306 A, and schedule specific

02:15 - 28.854 loss benefits under section 360.

02:15 - 33.892 Those benefits, section 306 C,

02:15 - 39.131 is a schedule of losses for individuals who suffer an amputation, lose a body part

02:15 - 42.634 a permanent loss of a body part, as occurred here.

02:15 - 47.005 Each of those separate sections of the act,

02:15 - 50.175 dealing with separate and distinct benefit

02:15 - 53.712 patterns, has their own method

02:15 - 58.083 of determining the benefits to which each individual is entitled.

02:15 - 02.754 Fatal benefits are treated differently than disability benefits,

02:16 - 05.757 which are treated differently than scheduled benefits.

02:16 - 10.562 So section 306 C

02:16 - 15.700 has an average benefit two thirds the wages of an injured worker,

02:16 - 18.770 a maximum benefit,

02:16 - 21.873 the statewide average weekly wage, and a minimum benefit

02:16 - 26.344 which is 50% clearly stated, 50%

02:16 - 31.416 of the statewide average weekly wage is the minimum

02:16 - 35.887 benefit that a low wage or owner would get for the loss of a body part.

02:16 - 39.090 When they lose, an arm or a leg is cut off.

02:16 - 44.996 Please pay for 3

02:16 - 47.999 or 6025% of

02:16 - 52.370 that refers to the amount of total disability.

02:16 - 57.442 It follows immediately after the it says for total disability

02:16 - 00.445 as calculated under section three of six eight.

02:17 - 03.248 It's clearly states that the minimum would be

02:17 - 07.152 50% of the statewide average weekly wage.

02:17 - 10.922 It doesn't refer back to that 50%.

02:17 - 14.559 If it did, it would be a total contradiction.

02:17 - 16.494 You would have to eliminate that.

02:17 - 19.598 It it refers immediately after that.

02:17 - 21.032 And to make it even clearer,

02:17 - 23.001 the next

02:17 - 27.806 sentence, the next paragraph begins as to what a healing period is.

02:17 - 31.443 So disability is different than the loss of a body part,

02:17 - 35.113 especially when you're dealing with low wage earners

02:17 - 38.383 or typically those just getting involved

02:17 - 42.554 in the in the labor market individuals,

02:17 - 45.624 they're usually young people and entry level positions.

02:17 - 49.060 They've lost that arm for the rest of their lives.

02:17 - 53.665 So they were treated differently than those that suffered disability

02:17 - 58.570 while Walton was wrongly decided.

02:17 - 03.575 And as the dissent stated there, it should be set aside.

02:18 - 06.811 It should never have been considered in the first place.

02:18 - 08.246 Whole.

02:18 - 13.285 Have you assume there are countless people who compensation should be capped?

02:18 - 17.389 It should be calculated, as the legislature states it, there

02:18 - 22.193 for low wage earners, if they lose a body part, if they have an arm

02:18 - 25.363 arm lost, the minimum that

02:18 - 29.234 they get is 50% of the statewide average weekly wage.

02:18 - 32.904 If you look at council, sure, I'm not sure.

02:18 - 36.408 Justice Daugherty asked you the question

02:18 - 40.812 that that I have in this case, what does as provided

02:18 - 43.882 in subsection a of this section mean?

02:18 - 49.487 What it means is how disability is capped.

02:18 - 56.061 Total disability is calculated as under section 306.

02:18 - 58.496 It doesn't reference total disability.

02:18 - 03.668 It specifically references specific loss compensation.

02:19 - 08.373 Compensation under paragraphs one through 24 shall not be more than the maximum

02:19 - 12.377 compensation payable nor less than 50%

02:19 - 16.381 of the maximum compensation payable for week for total disability.

02:19 - 18.083 That's.

02:19 - 20.919 But you would have a stop there.

02:19 - 23.922 Know what it goes on to say

02:19 - 29.127 for total disability as provided in subsection A?

02:19 - 34.332 In other words, you calculate what total disability is under section

02:19 - 37.469 306A.

02:19 - 40.939 It doesn't say okay, so I've calculated total disability

02:19 - 44.376 under 306A but I come up with I.

02:19 - 47.812 But but then how do I apply this.

02:19 - 52.083 not less than 50%

02:19 - 56.354 because that's not in a the minimum compensation payable for loss

02:19 - 59.624 of a body part for an amputation is 50%

02:19 - 02.627 of the statewide average weekly wage.

02:20 - 05.997 The statewide average weekly wage for disability

02:20 - 09.734 is calculated under section 3068.

02:20 - 11.803 The statewide average weekly wage. Right.

02:20 - 14.806 And then you take 50% of that.

02:20 - 17.575 You why do you have to go back to a what's the what's appropriate?

02:20 - 20.412 You could do that if it didn't have any reference to

02:20 - 21.646 what's the purpose of the reference?

02:20 - 26.518 I would have a it has a redundancy in and of itself in referencing.

02:20 - 32.090 306A here I say total disability is calculated in section.

02:20 - 35.126 Well, I think that's the redundancy is the ambiguity.

02:20 - 40.432 It seems to me to show the legislative intent to clarify the legislative intent.

02:20 - 45.503 You understand the next paragraph that deals with the healing period.

02:20 - 50.175 And they specifically state in dealing with the healing period,

02:20 - 53.812 you pay the amount for disability.

02:20 - 58.149 And so what happens when you have an arm cut off?

02:20 - 01.152 You have a stump. That stump has to heal.

02:21 - 02.687 And what the

02:21 - 06.591 legislative legislature has done is given a period of time

02:21 - 11.396 to allow that to heal before you get paid for the specific loss.

02:21 - 15.266 And it says here that's calculated.

02:21 - 21.339 The the benefit that you get is calculated under section 3068.

02:21 - 25.210 So that for that healing period for your disability,

02:21 - 29.247 you get minimum 90%.

02:21 - 32.250 When this when what was decided?

02:21 - 35.753 Well, you get the lesser right under a, you get the lesser of

02:21 - 38.923 you get the last 50% or 90% of disability.

02:21 - 45.096 So conceive what's happening when you have a low wage earner,

02:21 - 49.000 usually someone starting out and they suffer a disability.

02:21 - 53.872 Theoretically they'll recover from the disability if they don't.

02:21 - 58.476 There's whole sections under section three of six as to how you deal with it,

02:21 - 01.813 whether you have vocational placement, whether you have an IRA,

02:22 - 05.350 whether you have, return to partial disability,

02:22 - 09.153 you lost the body part, you've lost it forever.

02:22 - 11.089 And if you're a low wage earner,

02:22 - 14.459 you're going to have that problem the rest of your life.

02:22 - 17.362 So that's why it's treated differently.

02:22 - 19.564 I'm not disagree.

02:22 - 23.801 I'm. Look, I understand the policy argument that when somebody loses a limb,

02:22 - 27.872 we should pay them more than I understand that.

02:22 - 30.475 I'm asking whether that's what the General Assembly said.

02:22 - 33.678 And I'm trying to reach a construction that does not render

02:22 - 37.782 any language in see superfluous.

02:22 - 42.287 And it seems like your your construction, which is definitely more favorable

02:22 - 43.821 to the worker.

02:22 - 46.958 I get it, would render some

02:22 - 49.961 language superfluous

02:22 - 53.131 and maybe we have to, maybe we have to render some language superfluous.

02:22 - 56.801 I don't know, but but but I still don't understand.

02:22 - 00.471 I don't understand the reference back to a.

02:23 - 03.474 It seems completely unnecessary for purpose,

02:23 - 06.177 not with regard to healing, period,

02:23 - 10.014 but it seems completely unnecessary for us to reach your construction

02:23 - 13.685 the way the statute is written at the present time.

02:23 - 16.087 I believe that's true.

02:23 - 19.023 Historically, there have been changes in the

02:23 - 22.794 statute and that language

02:23 - 24.295 may have

02:23 - 29.267 clarified things back before the 1975 amendments to the act,

02:23 - 34.739 where they changed the, the benefit rate,

02:23 - 40.044 the maximum benefit rate was two thirds of the statewide average weekly wage.

02:23 - 40.511 Right.

02:23 - 41.846 And then it became

02:23 - 46.117 the statewide average weekly wage in order to increase the benefits throughout.

02:23 - 50.888 And there's a long historical basis for that, including the fact

02:23 - 54.626 that there was a national movement in order to increase

02:23 - 58.730 benefits statewide for injured workers

02:23 - 01.733 because the federal government was

02:24 - 04.268 challenging the different states.

02:24 - 08.539 And they said, we're going to take over the whole worker's compensation system

02:24 - 11.809 unless the states get things together.

02:24 - 15.413 And Pennsylvania responded, as did many of the other states,

02:24 - 18.950 by increasing the benefits for the injured workers.

02:24 - 24.055 And that increased the benefit rate from two thirds of the state

02:24 - 28.526 average weekly wage to the actual statewide average weekly wage.

02:24 - 32.030 later,

02:24 - 35.400 they decreased the minimum

02:24 - 38.803 for disabled workers because

02:24 - 42.573 there was a time when workers were getting more and workers

02:24 - 47.245 compensation benefits than they would be if they're working.

02:24 - 51.849 And the insurance industry and employers looked at that and said,

02:24 - 54.552 there's no incentive for people to get back to work

02:24 - 57.822 because they're making more sitting at home collecting benefits.

02:24 - 01.325 So the legislature changed it and reduced that

02:25 - 05.430 from a third of the statewide average weekly wage, at a minimum to 90%.

02:25 - 10.868 That doesn't apply at all to people that are suffering, suffer a specific loss.

02:25 - 13.871 They get paid for the loss of that limb,

02:25 - 17.008 and they typically don't get and they don't get wage loss benefits.

02:25 - 20.678 They don't get wage loss benefits, except unless they opt for it,

02:25 - 25.316 they can't opt for it if they've lost that body part.

02:25 - 26.818 That's their only remedy.

02:25 - 29.520 There are exceptions.

02:25 - 32.056 If you lose two body parts you can opt for.

02:25 - 36.461 If you lose an arm and a leg, you can opt for total disability.

02:25 - 40.098 But that's, Well, you're presumed to be total.

02:25 - 43.434 You're presumed to be totally disabled.

02:25 - 44.602 That's the assumption.

02:25 - 45.937 If you lose one arm,

02:25 - 49.640 but you're because you have a presumption of total disability, you lose one arm.

02:25 - 52.243 You are not presumed to be totally disabled, right?

02:25 - 55.413 You could and you could proceed either

02:25 - 59.350 to get partial disability benefits or take your specific loss benefit.

02:25 - 00.651 But you can't get both.

02:26 - 01.986 You don't have a choice.

02:26 - 04.088 You get the specific loss benefits.

02:26 - 06.557 You don't get disability benefits.

02:26 - 10.728 Your only option under the statute if you have lost a limb

02:26 - 12.663 or it's, a failure.

02:26 - 14.599 You're saying that this is a Scribner's error?

02:26 - 17.368 No, I think that's a

02:26 - 20.905 residual phrase that's in there

02:26 - 24.909 for explaining what,

02:26 - 27.145 what,

02:26 - 31.816 the statewide average age for total disability is that was

02:26 - 36.387 left in there when the statute was amended time and time again, it explains

02:26 - 41.692 what maximum disability, what the,

02:26 - 45.663 so you would read it as shall not be more

02:26 - 49.901 than the maximum compensation payable as provided in subsection

02:26 - 54.005 a nor or less than 50% of the maximum compensation

02:26 - 57.108 payable for week for total, you would move it.

02:26 - 59.677 I would put it right here.

02:26 - 02.513 It says that

02:27 - 07.251 it shall not be, nor less than 50% of the maximum compensation

02:27 - 10.254 payable per week

02:27 - 13.224 for total disability as provided.

02:27 - 17.795 The maximum compensation per week for total disability is provided in subsection

02:27 - 21.232 which is the statewide average, which is the statewide average wage.

02:27 - 22.200 Yes, exactly.

02:27 - 26.938 So it's clear that the

02:27 - 30.374 legislature intended these people to be treated differently.

02:27 - 35.713 They recognized the fact that if you suffer a specific loss,

02:27 - 38.816 that is going to be

02:27 - 42.520 have an effect upon your ability to earn wages for the rest of your life.

02:27 - 45.623 And the individuals involved are the,

02:27 - 50.261 entry level people, people that are,

02:27 - 53.698 just getting involved

02:27 - 57.401 in the labor market and they have to be treated differently.

02:27 - 59.737 And those that are suffering a disability.

02:27 - 00.071 Okay.

02:28 - 01.906 I think we understand your argument.

02:28 - 04.242 Are there any other questions?

02:28 - 05.443 Thank you sir.

02:28 - 08.012 Thank you.

02:28 - 08.746 Let's hear from Mr.

02:28 - 08.980 Palm.

02:28 - 11.983 Grace.

02:28 - 18.656 May please the court.

02:28 - 21.359 Paul con Grace, on behalf of the appellee.

02:28 - 24.362 Soft pretzel. franchise.

02:28 - 29.033 the the key to this argument, I believe, is,

02:28 - 32.036 if you're looking at Walton, how they interpreted

02:28 - 36.474 the amendments from the legislature, I won't go into detail.

02:28 - 38.009 The Walton Court already does that.

02:28 - 43.414 But there is one, issue that I want to highlight that I don't think the Walton

02:28 - 48.953 court highlights, and the dissent, in the, in this, in this,

02:28 - 52.990 Commonwealth Court, case also mentions it,

02:28 - 56.060 but brushes over it and that is,

02:28 - 00.965 there was prescription language

02:29 - 04.735 in the original act.

02:29 - 07.104 Paragraph C ended with,

02:29 - 10.107 but in no event more than

02:29 - 13.644 I'm sorry, in no event more than the employer.

02:29 - 16.580 The employees average weekly wage.

02:29 - 20.318 So they specifically had in the act a sentence

02:29 - 24.355 that says you can't get more benefits than what you were earning.

02:29 - 28.626 That was taken out by the legislature.

02:29 - 31.696 And I believe that when

02:29 - 34.732 when you harmonize,

02:29 - 37.435 as the Commonwealth Court said,

02:29 - 39.503 paragraph A with paragraph C,

02:29 - 44.108 you don't need the prescription language because you don't you don't ever get to it

02:29 - 47.111 that

02:29 - 52.516 you use the 90% floor in paragraph A,

02:29 - 56.020 which means you don't need to say

02:29 - 58.356 the employee does not need to,

02:29 - 01.759 does not get benefits more than what they were earning.

02:30 - 05.563 Why don't we just why don't why don't we just do with

02:30 - 08.833 the legislature told us rather than what Walton told us?

02:30 - 10.901 Why wouldn't we just apply the plain language?

02:30 - 13.904 Instead of going through all this legerdemain about

02:30 - 17.174 figuring out what the we think their intent might have been?

02:30 - 17.875 Well,

02:30 - 22.046 Your Honor, if you

02:30 - 24.849 read paragraphs,

02:30 - 27.852 see, literally, it provides in this case,

02:30 - 31.022 an absurd result which ends in a windfall.

02:30 - 35.226 This particular, injured worker would end up with

02:30 - 40.197 significantly more benefits than what she had been earning in gross wage.

02:30 - 44.568 She probably like to have her gross wages back and and,

02:30 - 47.738 have her arm back.

02:30 - 50.574 I would not disagree with you.

02:30 - 53.411 and I know that part of the argument

02:30 - 56.414 is that an amputee should be should be treated differently.

02:30 - 59.683 The act does treat an amputee differently.

02:30 - 04.822 That's why there is section A and section C specific losses.

02:31 - 09.126 That's the point that that you you conceded

02:31 - 13.064 as you must that the legislature set out two different paradigms here. Yes.

02:31 - 16.067 What what Walton did was ignore that.

02:31 - 18.069 Oh I don't I don't think they did.

02:31 - 22.773 They what Walton did was eliminate the, the

02:31 - 26.977 as in this case, the result where the benefits

02:31 - 31.715 far exceed the, gross wage that was being earned.

02:31 - 35.352 But that assumes that you're assuming the General Assembly's intent in giving

02:31 - 40.024 specific loss benefits is the same intent in providing disability benefits.

02:31 - 43.861 Disability is defined in the worker's compensation law as wage loss.

02:31 - 47.098 And you're assuming that

02:31 - 50.534 the General Assembly met in compensating for specific loss.

02:31 - 53.804 They've had to be compensating for wage loss to not something else.

02:31 - 55.973 That's an assumption you're making.

02:31 - 58.109 Well,

02:31 - 59.410 you know, specific loss,

02:31 - 02.413 I believe if I can use an extreme

02:32 - 06.250 example, if you have a worker who,

02:32 - 09.787 you know, with more fortitude than I would ever have

02:32 - 12.990 if they lose a finger, they go to the hospital in the next day,

02:32 - 17.061 they go back to work, and they have no wage loss.

02:32 - 19.096 Well, the act says

02:32 - 23.134 that's still a work related injury and they deserve to be compensated.

02:32 - 24.835 That's where specific loss comes into.

02:32 - 27.838 Specific loss has nothing to do with wage loss.

02:32 - 29.240 I agree, so why are you.

02:32 - 31.709 So why are you so,

02:32 - 36.714 strident in your belief that that because

02:32 - 41.452 that that somehow, someway, the specific loss has to match

02:32 - 44.755 or bear relation to the disability payment?

02:32 - 51.862 Well.

02:32 - 55.633 I think I can answer that,

02:32 - 58.636 Your Honor, by,

02:32 - 01.906 the term being use grievous injury.

02:33 - 05.876 And I believe the dissent in the Commonwealth Court pointed to

02:33 - 10.915 and has hung their hat on the fact that an amputation is a grievous injury.

02:33 - 14.285 But the act does not define

02:33 - 17.421 grievous injury and doesn't take into account grievous injury.

02:33 - 20.057 And there's no room for anyone to say

02:33 - 23.060 that an injured worker is more grievously injured than another.

02:33 - 26.697 as you say, no room for anybody.

02:33 - 28.632 The legislature has all the room.

02:33 - 31.669 It wants to differentiate between these classes.

02:33 - 33.604 Well, that's correct.

02:33 - 39.210 And they they provide in subsection C, how you calculate the defined benefit.

02:33 - 43.514 And the defined benefit is looking back at a and again interrupt.

02:33 - 48.319 But that that that reminds me your your brief

02:33 - 51.522 I'm not sure whether you're saying it's plain language or ambiguity.

02:33 - 57.494 It seems like I think you seem to rest on both points at various junctures.

02:33 - 00.431 Which do you think it is? Plainly what resolves this case?

02:34 - 05.836 Plain language or ambiguity is there's not a third option to say it's sports.

02:34 - 06.337 Walton.

02:34 - 09.340 I mean, that doesn't answer our it doesn't answer for us

02:34 - 11.375 ambiguity or plain language.

02:34 - 12.610 What do you think?

02:34 - 18.115 Well, I if you read the plain language,

02:34 - 22.086 I think there is an ambiguity between A and C,

02:34 - 26.890 but don't we have to resolve it, in favor of the claim?

02:34 - 29.793 And under the humanitarian purpose jurisprudence?

02:34 - 32.730 Well, first, I don't think we're left without guidance.

02:34 - 37.935 I think the legislative intent is important in determining how you work a

02:34 - 41.338 and C together and harmonize them as far

02:34 - 44.875 as the humanitarian nature of the act.

02:34 - 49.213 you know, in this case, I think the athlete wants a bigger safety net.

02:34 - 52.716 They want more benefits than what she had been earning

02:34 - 57.054 the floor, the safety net in this in this act,

02:34 - 00.257 the humanitarian nature of the act is the 90% floor.

02:35 - 03.661 That's that's that's it's for disability.

02:35 - 04.695 Correct.

02:35 - 07.298 I you know, I'll ask you the same question, a similar question.

02:35 - 10.968 How do I get to your result without rendering the 50% average

02:35 - 14.905 statewide weekly average language superfluous

02:35 - 17.708 in C,

02:35 - 20.077 C says not less than 50% of the maximum

02:35 - 23.080 compensation payable, which is the average statewide weekly wage.

02:35 - 26.684 How do I get to your result without rendering that language superfluous?

02:35 - 32.356 I don't believe it's superfluous until you get to a low income amputee.

02:35 - 35.025 Well, then it's superfluous.

02:35 - 37.828 Well.

02:35 - 41.965 Not if you looked at legislative intent when they harmonized A and C

02:35 - 46.203 who's who, because who's they that harmonized A and C

02:35 - 49.907 and legislative and legislative intent starts with the statutory language.

02:35 - 54.044 So so we are supposed to assume that all the provisions,

02:35 - 57.348 are effective and can operate.

02:35 - 01.218 And what you're saying is, I think in response to my question, is

02:36 - 06.223 the language becomes ambiguous when you deal with a low income worker.

02:36 - 08.659 That's a problem, right?

02:36 - 10.094 Well, the act doesn't allow

02:36 - 13.764 for preferential treatment when calculating a specific loss benefits,

02:36 - 17.234 even if it means, as the Commonwealth Court said here,

02:36 - 20.838 if it means lower benefits for the injured worker.

02:36 - 27.444 But I would just want to make sure I understand what you're saying is

02:36 - 31.248 the language is superfluous for some claimants, but not all claimants,

02:36 - 33.617 and therefore we should apply.

02:36 - 36.120 We should not apply the language here.

02:36 - 39.123 Now, I believe once the wage,

02:36 - 43.460 the wage is low enough that the benefits

02:36 - 47.131 exceed the average weekly wage,

02:36 - 50.834 you look to a and use the 90% floor.

02:36 - 54.071 That's the remedial calculation.

02:36 - 58.809 Okay, we understand your argument.

02:36 - 01.812 are there any other questions?

02:37 - 02.946 Thank you both.

02:37 - 05.949 Do you do want to did you want to conclude or are you good.

02:37 - 07.217 No I'm fine, thank you.

02:37 - 08.218 All right. Pretty much.

02:37 - 09.987 Thank you both very much.

02:37 - 10.621 Mr. Menor.

02:37 - 13.624 The court will take a one hour recess for lunch.

02:37 - 17.361 Recess?

02:37 - 20.964 This case is the Pennsylvania

02:37 - 25.402 Game Commission versus the Thomas Proctor Heirs Trust.

02:37 - 29.907 It comes to the court in a very unusual posture,

02:37 - 34.011 because this case was originally brought in federal court

02:37 - 39.049 and after the district court made its decision and it went up on appeals

02:37 - 43.954 to the Third Circuit Court of Appeals, the Third Circuit determined

02:37 - 47.925 that the question was one peculiarly of Pennsylvania

02:37 - 51.528 law that the Pennsylvania Supreme Court should answer,

02:37 - 57.401 and therefore it certified the question to the Pennsylvania Supreme Court.

02:37 - 01.405 The Pennsylvania Supreme Court agreed to take the question.

02:38 - 05.409 And so it is now evaluating the issue.

02:38 - 10.214 And the issue itself goes back all the way to the 1700s,

02:38 - 14.318 when there was a land grant known as the Heinz warrant,

02:38 - 19.356 and Lo in Leroy Township in Bradford County.

02:38 - 23.560 It involved 407 acres of land.

02:38 - 29.066 Over time, that land had two separate layers of rights

02:38 - 32.402 the surface rights and the subsurface rights.

02:38 - 37.875 The subsurface rights allow someone to mine coal, oil,

02:38 - 41.144 whatever else is under the surface,

02:38 - 44.114 and it rested with two people.

02:38 - 46.250 Proctor and Hill.

02:38 - 49.253 The surface rights, on the other hand, were suffered

02:38 - 52.589 and they were sold to a company.

02:38 - 56.660 After time, the company failed to pay its taxes,

02:38 - 01.298 and when it went to redeem the property a year later,

02:39 - 07.104 it used an agent who came in and purchased the property and,

02:39 - 13.043 then after two years, gave it back to the company.

02:39 - 16.046 The question arises whether

02:39 - 20.951 what the title was that he gave back was title to the surface

02:39 - 24.922 rights only, or, as the Game Commission contends,

02:39 - 29.893 was rights to the surface and subsurface rights

02:39 - 33.096 because they couldn't.

02:39 - 36.900 The Game Commission contends that the title was washed

02:39 - 41.805 when it was reacquired at the tax sale, and in that washing,

02:39 - 44.975 all of the rights passed to the Game Commission.

02:39 - 49.146 When the Game Commission took ownership of the property, the Proctor

02:39 - 54.718 Heirs Trust, on the other hand, claims that it never lost its subsurface rights

02:39 - 00.490 and that it is going to be able to use those subsurface rights and indeed

02:40 - 04.061 has used those subsurface rights all along.

02:40 - 07.731 This case has engendered quite a bit of support

02:40 - 13.470 from different people on both sides, with amicus briefs ranging from,

02:40 - 17.374 the International Development Company

02:40 - 21.545 and EQ and equity to the Pennsylvania

02:40 - 25.282 Department of Conservation of Natural Resources,

02:40 - 32.322 which mentions that it manages 300,000 acres of state park land

02:40 - 36.093 and 2.2 million acres of state

02:40 - 39.563 forest land that it is authorized to lease.

02:40 - 42.699 And all of that will be put into question.

02:40 - 45.702 Depending upon how this court rules.

02:40 - 50.941 There were also amicus briefs filed in support of the Procter heirs

02:40 - 54.111 from people who are very interested

02:40 - 58.715 in keeping the property with the subsurface suffered

02:40 - 02.586 and not having people able to get better title

02:41 - 07.424 by redeeming the property themselves after failing to pay the taxes.

02:41 - 09.660 Let's listen to that argument.

02:41 - 13.897 over 20 years.

02:41 - 17.300 Representing a lady to our nation.

02:41 - 21.038 In this certified question from the United States

02:41 - 23.373 Court of Appeals for the Third Circuit.

02:41 - 26.810 We are asked to determine whether a 1908

02:41 - 30.480 tax sale of an unseeded parcel of land,

02:41 - 34.851 which had been divided into a surface and subsurface estate,

02:41 - 38.088 each with separate owners,

02:41 - 43.660 constituted a quote unquote, tidal wash, thus divesting the subsurface

02:41 - 46.763 owner of his ownership interest and giving the purchaser

02:41 - 51.134 ownership of both the surface and the subsurface estate.

02:41 - 55.505 Of note, the property at issue was sold by Bradford County

02:41 - 59.476 because the surface owner failed to pay taxes on the surface estate.

02:42 - 02.512 However, the property was sold

02:42 - 06.049 to an agent of the defaulting surface

02:42 - 09.720 owner, so do enlighten us as to all the issues.

02:42 - 12.856 Thank you, Madam Chief Justice, and may it please the court.

02:42 - 14.191 My name is Michael Currency.

02:42 - 16.293 I am a senior deputy attorney general

02:42 - 18.228 with the Pennsylvania Office of Attorney General.

02:42 - 20.163 I'm here representing appellant,

02:42 - 23.166 the Pennsylvania Game Commission, on this certified appeal.

02:42 - 27.337 Your honors, this court should answer yes to the certified question.

02:42 - 31.441 The 1908 tax sale of the Heinz Warrant resulted in a title wash.

02:42 - 35.512 This court already answered the certified question in her to spring

02:42 - 40.217 there the unanimous court in what you, Madam Chief Justice, called a thorough

02:42 - 45.322 and scholarly opinion, reaffirmed in 2016 what it had said for 200 years.

02:42 - 50.360 Unseated land owners did not owe a duty to the state to pay taxes.

02:42 - 53.764 The duty was on the land because of the federal

02:42 - 56.767 district court's errors in reading, Pennsylvania, law.

02:42 - 00.871 The Game Commission is here asking this court to reaffirm its precedent.

02:43 - 04.608 The proctors, however, want you to upend 200 years

02:43 - 08.145 of precedent and, in the process, create chaos for landowners.

02:43 - 11.214 Beginning with Heard of Spring?

02:43 - 13.850 In Heard a Spring, this court reverted back to Powell,

02:43 - 17.020 which you decided 120 years earlier in 1896.

02:43 - 20.524 And what you said and heard a spring is that the Powell Court

02:43 - 25.128 explained the duty, or lack thereof, of landowners to pay taxes.

02:43 - 29.599 And again later on, in that opinion, tax unseated land.

02:43 - 32.903 Land tax on unseated land was the liability,

02:43 - 36.439 was the liability of the land rather than the owners.

02:43 - 40.010 And then in Powell, you said the taxes under

02:43 - 42.979 which the sale was made in this case were on unseated lands,

02:43 - 46.483 and there was no personal responsibility on the owner thereof.

02:43 - 48.919 The land alone was liable.

02:43 - 51.621 And then again later in that opinion, neither owner

02:43 - 54.591 is under any obligation to the state to pay.

02:43 - 58.094 Now, the proctors say Proctor, they say Powell

02:43 - 01.998 and Herd of spring are different, because the tax sale purchaser

02:44 - 05.702 did not own the land when it was assessed for taxes.

02:44 - 09.206 But that factual distinction is not legally significant

02:44 - 13.610 because, as you've said many times, ownership is immaterial.

02:44 - 16.580 In fact, 40 years before Powell

02:44 - 21.852 in 1856 and Cox versus Gibson, as even the district court recognized here,

02:44 - 25.922 the taxes were at least partially assessed against the land, while the tax sale

02:44 - 27.757 purchaser owned the property.

02:44 - 30.660 And you still held that that was the title wash.

02:44 - 33.496 As I said, the taxes, as I said,

02:44 - 36.600 ownership was so immaterial that it was often the case.

02:44 - 39.769 Again, as you recounted in Curtis Spring, that often

02:44 - 43.406 the county commissioners did not even know who owned the land.

02:44 - 46.710 The land was assessed in the name of the warranty owner.

02:44 - 50.380 The warranty owner was the person who first received the land

02:44 - 52.549 from the Commonwealth,

02:44 - 54.117 and then

02:44 - 57.120 after Powell, six years after Powell in 1902,

02:44 - 00.523 we see, the Superior Court in a case by,

02:45 - 03.693 that was written that authored by former Governor James Beaver.

02:45 - 07.964 And his name is important for later reasons that I'll discuss that case.

02:45 - 09.733 Think versus Miller.

02:45 - 13.136 The appellants in that case raised the same exact arguments

02:45 - 16.206 as the proctors are raising here that it mattered

02:45 - 19.075 who owned the land when the taxes were assessed

02:45 - 22.145 and the Superior Court there said, no, it doesn't matter.

02:45 - 25.615 and then we see authorities

02:45 - 29.486 over the next 120 years saying the same thing, that it does not matter

02:45 - 32.489 who owns the land, that a landowner could even

02:45 - 36.059 purposely default on the taxes and still acquire

02:45 - 39.262 both the surface and subsurface, in a tidal wash.

02:45 - 41.631 We see that with the title examiner opinion.

02:45 - 45.635 I know the proctors like to cite the title examiner opinion, but he recognized

02:45 - 49.739 that there was, quote, a widespread belief, unquote, that a person could

02:45 - 53.510 purposely default and acquire the land, both surface and subsurface,

02:45 - 58.148 at a tax zone testing that the legislature,

02:45 - 01.851 would impose tax on property

02:46 - 06.089 while not imposing a corresponding duty on anybody to pay the tax.

02:46 - 08.325 Isn't that a little hard to believe?

02:46 - 11.361 As I said in my brief, this was a legal fiction

02:46 - 14.464 that the law created to address certain problems that,

02:46 - 17.534 the legislature was having in acquire

02:46 - 20.603 in, collecting taxes from these land.

02:46 - 24.507 These lands were some of the most rugged in the, in the Commonwealth at the time.

02:46 - 27.877 These owners were not registered with the county commissioners.

02:46 - 31.448 They were often living far off on the coast.

02:46 - 36.386 So the law created this sort of legal fiction so that, the,

02:46 - 39.789 the courts could acquire jurisdiction over these,

02:46 - 44.127 owners who are living far away through in rent proceedings.

02:46 - 47.931 Also, the the legislature wanted to encourage people

02:46 - 51.301 to have their land assessed so they could collect, tax.

02:46 - 55.038 And then once the land is being assessed, of course

02:46 - 58.408 the owner is going to want to make a productive use of the property.

02:46 - 01.411 So there were legitimate reasons why the legislature

02:47 - 04.547 decided to go, this route.

02:47 - 08.718 And as I was saying before, it's after the title examiner opinion.

02:47 - 13.490 We have, a federal district court in 1956, Sycamore versus Proctor,

02:47 - 19.295 who, after reading, Pennsylvania law, commented that owner of unseated land

02:47 - 22.298 may purchase the same as an entire stranger to the title

02:47 - 25.468 and then recognize that the decisions are, quote, many and uniform,

02:47 - 29.973 that there is no personal obligation whatsoever on the part of any individual

02:47 - 33.643 owner to pay taxes on land assessed as unseated.

02:47 - 35.045 And so can I ask you a question,

02:47 - 38.048 a factual question, before you go on and keep talking?

02:47 - 41.584 It's Third Circuit Senate here because apparently it isn't

02:47 - 44.921 clear enough for them to decide what what Pennsylvania law is. But

02:47 - 47.590 isn't there isn't in this record.

02:47 - 48.558 Don't we have a situation

02:47 - 52.896 where the with the taxing body was aware that the subsurface rights were severed

02:47 - 57.200 and was aware of who owned the subsurface rights and the surface rights?

02:47 - 59.569 Well, I don't I don't think they were aware

02:47 - 01.137 who owned the surface and subsurface.

02:48 - 04.808 Now the court, the district court did make a factual finding that.

02:48 - 10.280 kplc had reported we challenged that factual finding, in the Third Circuit.

02:48 - 13.349 But that fact is not actually dispositive.

02:48 - 16.419 The dispositive fact is what was assessed.

02:48 - 19.255 And we know that this land was assessed in its entirety.

02:48 - 20.490 Meaning, I understand that.

02:48 - 24.861 I'm just saying, though, but but you heard all the reasons for the Herder

02:48 - 28.731 spring Powell idea that you gave may not be here.

02:48 - 30.300 The county

02:48 - 33.036 was put on notice.

02:48 - 36.406 The taxing body was put on notice of a I don't know if they filed

02:48 - 39.709 what, a certification or a recording or something like that, but there was a

02:48 - 43.246 there was a notification of severance on who owned which estates prior to this.

02:48 - 44.114 Taxpayers.

02:48 - 45.715 So let me just clarify a couple things.

02:48 - 48.485 The factual finding that the court made was that there was a reporting.

02:48 - 52.822 Our position is that reporting was based on the fact that Kplc paid the taxes.

02:48 - 56.659 But again, that's not on a recording of that of that happened at the time

02:48 - 58.094 the subsurface rights were separated.

02:48 - 59.896 There's no there's given to the county.

02:48 - 01.431 There's no recording in the record.

02:49 - 05.401 All the all that it was is that Kplc paid the taxes on the property.

02:49 - 09.272 And and from that, the court made, the finding that,

02:49 - 13.810 therefore, the sum that that it should have been assessed separately

02:49 - 18.114 and on separately, but it was not it was assessed in its entirety.

02:49 - 21.251 And we know that because, as you explained

02:49 - 24.254 in part, have been assessed, so should have been assessed separately.

02:49 - 25.855 Well, so if it should have been assessed

02:49 - 28.191 separately, that's what we say is irregularity.

02:49 - 31.761 It's something that had to be challenged within two years of the tax sale.

02:49 - 34.097 It wasn't. You made this point and heard a spring.

02:49 - 38.902 In other cases like Williston versus Coal Kent, that would be an irregularity.

02:49 - 41.204 It's not something you can raise 120 years later.

02:49 - 43.139 It's not a jurisdictional defect.

02:49 - 47.076 but what happens if this will be my last factual question?

02:49 - 47.744 Okay.

02:49 - 53.082 What happens if, after the supposed title wash,

02:49 - 57.887 the entity who acquired full ownership

02:49 - 03.626 by way of the tidal wash, continues in deed after deed after deed

02:50 - 08.932 to recognize the subsurface separation and subsurface separate estate.

02:50 - 11.601 So it depends what would say in the clause.

02:50 - 13.203 Well, let me put it this way.

02:50 - 16.072 Once the title has been washed, that interest has been extinguished

02:50 - 20.743 unless the prior owner takes certain actions like redeeming within two years

02:50 - 23.846 or challenging an irregularity within two years.

02:50 - 28.718 so, if it's said something like if the deed said something

02:50 - 33.256 like it's subject two, that's not enough to resurrect an extinguished,

02:50 - 38.161 something an interest that was extinguished, by the tidal wash.

02:50 - 39.128 Why not?

02:50 - 43.866 because the law says it's not subject to is just like a breach of warranty.

02:50 - 47.637 claim it's a breach of warranty provision.

02:50 - 51.975 Protects you against, you know, I'm not going to be sued

02:50 - 54.911 because I put you on notice that there might be something out there.

02:50 - 58.715 You have to contrast that with, an exception and reservation clause

02:50 - 01.718 where I grant you justice.

02:51 - 03.453 Props, and I, I'm going to grant to you

02:51 - 07.490 the surface, but I'm going to accept and reserve onto myself the subsurface.

02:51 - 11.527 In that sense, that wouldn't pass, the subsurface.

02:51 - 13.663 But but we don't we don't have that here.

02:51 - 14.764 This is not a deed case.

02:51 - 18.001 This is the what was the what was the purpose in this case of the deeds

02:51 - 23.973 language that the as as as I think you agree it was here.

02:51 - 26.376 everybody seemed

02:51 - 29.379 to be operating under the impression that that the subsurface.

02:51 - 32.649 Right, survived the alleged title loss.

02:51 - 36.686 so the deed language had this subject to language.

02:51 - 37.553 It was just a breach

02:51 - 41.391 of warranty provision, a way to prevent being sued in the in the future.

02:51 - 44.093 But it was not a provision that resurrected

02:51 - 45.662 something that was extinguished.

02:51 - 49.699 And getting back to what you just commented that everybody knew at the time,

02:51 - 51.367 everybody did know at the time what this was.

02:51 - 53.836 It was a a tidal wash. It wasn't a redemption.

02:51 - 57.640 I know the title examiner expressed what would be a minority opinion

02:51 - 58.341 at the time,

02:51 - 59.375 but he recognized that

02:51 - 02.712 this was a widespread belief that this had been a tidal wash.

02:52 - 05.715 And this was the kind of thing that happened on a regular basis.

02:52 - 09.519 If you look at a Superior Court case from 2019, he had a guess,

02:52 - 11.721 which was decided after heard a spring.

02:52 - 13.556 It's the same exact facts.

02:52 - 15.091 kplc.

02:52 - 19.262 Owned in 1908, Macaulay Jr bought at the tax sale.

02:52 - 24.701 He sold it back to Kplc two years after the redemption period had passed,

02:52 - 28.204 and the Superior Court rejected all these arguments about agency

02:52 - 30.673 and said that it resulted in a tidal wash.

02:52 - 33.176 So the the law is really on our side. You're on,

02:52 - 38.481 See, I have this on.

02:52 - 43.920 I, but let me ask you about, Powell because I think Powell is the case.

02:52 - 46.956 That is sort of the genesis of this role that we're talking about.

02:52 - 49.258 Is that correct? I think, well, I want to be clear.

02:52 - 53.329 The rule itself, this idea that you can't neglect from your

02:52 - 56.532 you can't acquire a better title through your own neglect.

02:52 - 59.135 I think that predates Powell by many years.

02:52 - 02.905 It's like black letter law, but we've used it shorthand to mean

02:53 - 07.076 the rule of Powell just to express that, that that concept.

02:53 - 09.679 Well, let me ask it a little differently.

02:53 - 12.749 Don't these cases stand for the proposition that when

02:53 - 16.552 when you have unseated land,

02:53 - 20.390 a taxing body in a

02:53 - 24.026 attempt to collect those taxes

02:53 - 27.029 by way of a tax sale,

02:53 - 32.101 can look to the property for the collection of the tax

02:53 - 35.104 as opposed to looking to the,

02:53 - 38.141 personal, assets of the owner.

02:53 - 40.610 Yeah, that's that's correct.

02:53 - 41.477 that's different.

02:53 - 46.182 That doesn't say that the owner does not have a duty to pay taxes.

02:53 - 48.985 Except you've said it over and over again for 120 years.

02:53 - 52.221 And I think and I'm questioning that proposition.

02:53 - 55.925 I mean, sure, because, frankly,

02:53 - 59.028 the notion that a property

02:53 - 03.766 owner has no duty to pay taxes is nonsensical.

02:54 - 08.571 I mean, the property owner may not have a personal responsibility

02:54 - 14.343 from personal assets to pay the taxes, add a tax sale.

02:54 - 19.382 But to turn that into there is no duty to pay taxes.

02:54 - 22.151 I think it's a gigantic step.

02:54 - 25.221 I mean, the problem with Herder Springs is the addition

02:54 - 28.825 of one clause in the middle of the paragraph

02:54 - 32.662 that says duty to pay taxes, if any comma.

02:54 - 38.634 That's that's the misplaced statement in Herder Springs, in my opinion.

02:54 - 42.805 I'm I'm just looking for your your your question about, well,

02:54 - 45.141 how do you get, jurisdiction

02:54 - 48.144 if you don't actually know who the property owner is?

02:54 - 52.315 I mean, you do that, like, in the way it was done.

02:54 - 57.019 You bring the action, you bring a collection effort.

02:54 - 00.590 And at the, at the tax sale,

02:55 - 05.061 you sell the property to pay the tax obligation of the owner.

02:55 - 10.800 You don't look to the owner to pay from, his or her personal assets.

02:55 - 13.102 His in this time frame, you swimming?

02:55 - 16.105 Actually didn't own a lot of property in this point in time,

02:55 - 19.876 but I, I'm just I, I'm, I'm a little bit uncomfortable

02:55 - 24.447 in landsea in the Powell case, he wasn't the property owner at the time.

02:55 - 26.315 The assessment. Right. I pointed that out.

02:55 - 28.818 He had no duty period.

02:55 - 29.719 He had no duty.

02:55 - 32.054 So when you say that the owner had no duty, it's

02:55 - 35.057 because he didn't own the property at that time.

02:55 - 37.527 Well, I have several responses to that, to your honor.

02:55 - 38.394 first, I'd say

02:55 - 41.197 when when we talk about the word duty, if we just want to start with that.

02:55 - 43.499 Oh, you used it in the straightforward way.

02:55 - 44.700 We all know what duty means.

02:55 - 48.304 It's a legal obligation, and we're supposed to read legal opinions,

02:55 - 51.507 as straightforward expressions of denotation,

02:55 - 55.311 meaning we take them literally unless there's some kind of contrary indication

02:55 - 57.313 in the opinion and there's not.

02:55 - 00.182 We've you said, there's no duty in a variety

02:56 - 03.486 of different ways, no personal obligation, no personal responsibility.

02:56 - 05.087 The land alone is liable.

02:56 - 08.491 If you look at Neil versus Lacey, I think it's a very important opinion

02:56 - 11.294 because there you have a court holding

02:56 - 15.464 that there could not be an unseated landowner, could not recover

02:56 - 19.468 in contribution if he paid the entirety of the taxes.

02:56 - 22.939 And the rationale that underpinned that case

02:56 - 25.942 was that there was no duty on the landowner.

02:56 - 29.412 And I think this gets into some of the many holes that we see

02:56 - 32.415 in the Proctor's argument, in terms that I've touched already on

02:56 - 34.717 ownership is immaterial.

02:56 - 36.953 I've talked about contribution.

02:56 - 39.155 If if the personal duty.

02:56 - 41.624 I know you said it was just in the middle of an opinion.

02:56 - 44.527 The idea about that duty, if any. Right.

02:56 - 47.697 But actually but actually you mentioned it twice

02:56 - 51.334 in that opinion, and it was pivotal to both parts of the opinion.

02:56 - 54.637 That opinion dealt with the extent of the assessment

02:56 - 57.640 and the legal consequences of the sale in 1935

02:56 - 00.009 and then constitutional due process.

02:57 - 00.910 And it was pivotal.

02:57 - 04.814 It was integral to this court's opinion on constitutional due process,

02:57 - 06.949 that there was no duty,

02:57 - 10.219 because if there was a duty, just like for ceded land, then

02:57 - 13.723 the landowner would have been entitled to personal notice.

02:57 - 17.827 Now, if you say there's personal, a personal duty here,

02:57 - 20.830 then all those unseated landowners would have been entitled

02:57 - 24.367 to personal notice because an impersonal action requires personal analysis.

02:57 - 25.468 Notice.

02:57 - 28.270 So that would throw into doubt every unseated land,

02:57 - 32.041 case that's happened in the past 120 years.

02:57 - 35.311 And of course, notice is a jurisdictional requirement.

02:57 - 39.048 So that could be challenged even 120 years, down the line.

02:57 - 44.220 and I'd like to just point out a couple other things

02:57 - 45.721 in terms of the duty argument.

02:57 - 49.492 another I think problem with their argument is that they recognize

02:57 - 53.095 that title wash happens in a number of of different situations.

02:57 - 56.098 They talk about how, where the property is assessed as whole

02:57 - 00.236 and then purchased by the, a third purchase by a bona fide purchase.

02:58 - 03.139 That's the heard a spring situation. They say that's a title wash.

02:58 - 04.073 They say where there's adverse

02:58 - 07.076 claimants to title, where there's a potential cloud on title,

02:58 - 10.146 and one of them purchase, that's the title wash.

02:58 - 14.550 And they say even when, someone acquires the property after there's

02:58 - 18.654 been a lean that person can buy at the tax sale, and it's still a title wash.

02:58 - 19.922 So that property is recognized.

02:58 - 23.092 All these different situations, whether it is a title wash.

02:58 - 27.463 and so I think, how can there be a duty just some of the time?

02:58 - 29.732 There has to be a duty all of the time.

02:58 - 33.569 And I think another problem that they have with their theory, what I would call the

02:58 - 39.141 the quantum theory of title wash, is the idea that, it matters.

02:58 - 42.611 This theory hinges on what McCauley did after he bought.

02:58 - 45.681 So if you're familiar with, Schrodinger's

02:58 - 50.553 cat with that thought experiment where, the idea that particles can be in

02:58 - 54.824 two different states at the same time, depending, until you observe them,

02:58 - 00.396 you know, that's, or, you know, Schrodinger's cat thought experiment,

02:59 - 04.266 where the cat could be both dead and alive, depending on

02:59 - 06.235 until you open the open the box.

02:59 - 08.671 It's the same thing with the title wash.

02:59 - 13.209 It could have been a title wash if he sold to Kplc,

02:59 - 17.046 but it's not a tidal wash if he sold to somebody else.

02:59 - 19.548 And I think that gets into the problem.

02:59 - 21.751 What kind of rule of law is that?

02:59 - 24.653 That it depends on what someone does after the fact.

02:59 - 27.590 And how it's someone who's examining the title record.

02:59 - 30.559 Know if this is a title wash just on the back face.

02:59 - 34.730 The the fact that, McCauley Jr.

02:59 - 39.135 Sold to Kplc unless, you know, examining things extrinsic

02:59 - 42.304 to the title record to figure out who this person was.

02:59 - 46.208 And you're saying there's no obligation for the taxing bodies

02:59 - 51.313 to examine the deeds on the record for the property to determine who has.

02:59 - 52.381 Yes. That's certain.

02:59 - 53.749 Yeah. You made that very clear.

02:59 - 54.250 In order to spring,

02:59 - 59.121 they have no obligation to say no, I understand that we we made that.

02:59 - 02.324 But I'm again I'm I'm, I'm wondering whether we hit,

03:00 - 05.761 whether we're creating, whether that law that creates the fiction.

03:00 - 08.764 Yes. Makes a lot of sense in an era

03:00 - 12.201 where, deeds are recorded,

03:00 - 16.705 the way they were back then and the way they are now.

03:00 - 20.776 I mean, it means that the legislature provided different ways

03:00 - 22.711 for a land owner to protect himself.

03:00 - 26.882 There's nothing inequitable here, but it was not an obligation on the part

03:00 - 30.319 of, the, the county commissioners to go searching through the deed

03:00 - 33.489 records to see who owned the land and how it was transferred.

03:00 - 38.794 That was up to, the landowners and just to point out some of the ways,

03:00 - 43.132 the question hasn't come up so much, but there was nothing inequitable here.

03:00 - 47.136 What is inequitable is coming to this court 120 years

03:00 - 50.773 later in seeking to destroy, the title that we gainfully,

03:00 - 54.777 acquired, the proper way for the proctors to protect themselves.

03:00 - 56.378 There were six different ways

03:00 - 57.947 they could have, paid

03:00 - 03.018 the taxes on the entirety of the property, just as Kplc had done,

03:01 - 07.223 for those many years when the excuse me, the proctors were free riders.

03:01 - 10.459 Who got the who got the tax notifications during those years?

03:01 - 13.028 There's I don't believe there's tax notifications.

03:01 - 15.831 The tax notifications were the tax laws.

03:01 - 18.801 These everybody that's that's what the case law says.

03:01 - 22.071 Everybody knew that these taxes were due every two years.

03:01 - 27.209 And the tax sales happened on the same second Monday of June every two years.

03:01 - 31.580 That was the notification, that the law provided at the time.

03:01 - 33.249 This was not the time of the internet. You know.

03:01 - 43.893 Do we know if taxes were assessed to the subsurface?

03:01 - 47.196 We know absolutely that taxes were not assessed to the subsurface.

03:01 - 50.900 This was a taxation of the land in its entirety.

03:01 - 54.036 And the way we know that is because,

03:01 - 58.107 as you explained in Heard of Spring,

03:01 - 01.510 you look to the treasurer's deed and to the assessment record,

03:02 - 04.680 that would have to be something that indicates in either the assessment

03:02 - 05.547 record of the Treasurer's team

03:02 - 09.084 that this was a sale of only the surface or an assessment of only the surface.

03:02 - 13.522 It would say something like coal only or gas only, or mill minerals only.

03:02 - 18.260 And keep in mind, as I pointed out in my brief from 1890 to 1935,

03:02 - 22.765 there was never a assessment of a subsurface land in all of Bradford County.

03:02 - 26.335 And the Proctor's actually concede that there was never a separate assessment.

03:02 - 30.639 Their argument in response is that this land did not have,

03:02 - 33.876 this land lacked accessible value.

03:02 - 34.376 Now, the.

03:02 - 42.851 Yes. To pay it

03:02 - 45.854 entirety, just like LCC was paying the entirety.

03:02 - 48.691 Well, those taxes were on the entirety

03:02 - 52.428 they belonged to, both to Kplc and to the proctors.

03:02 - 57.266 Either one could have paid to A to assure that their land was not sold.

03:02 - 58.767 But there were many other ways.

03:02 - 01.670 If they had gone and got a separate assessment,

03:03 - 04.940 they could that would have happened with a separate assessment is that

03:03 - 09.712 if the taxes were not paid on the surface, only

03:03 - 13.615 the surface would have passed at a tax, but they didn't obtain a separate surface.

03:03 - 16.986 They could have made an arrangement with Kplc and made a contract

03:03 - 20.589 and say. No.

03:03 - 31.667 They had an obligation under one of the acts to come

03:03 - 35.170 and report their interest and make sure that it was separately assessed.

03:03 - 37.239 If you did not have it assessed.

03:03 - 48.384 When you report this supposed to be an assessment,

03:03 - 51.387 but there.

03:03 - 54.456 That's that's true, Your Honor.

03:03 - 55.958 They found that there was a reporting.

03:03 - 59.762 However, there was not a separate assessment as a matter of fact and law.

03:03 - 02.965 And that's something that you can't come to this court

03:04 - 06.402 a 120 years later and say, oh, you should have separately assessed it.

03:04 - 08.437 No, you have to do that within two years.

03:04 - 09.738 That's very clear in the law.

03:04 - 11.006 That's an irregularity.

03:04 - 13.275 You've said that in some of the cases I mentioned before,

03:04 - 15.377 heard a spring and Williston versus Coquette.

03:04 - 18.180 Well, what what more is the proper you supposed to do than

03:04 - 22.051 to come to the county and say, I own these subsurface rights?

03:04 - 27.089 I'd like to place my notice on the record that those are my rights.

03:04 - 31.593 Isn't that them up to the county to take the next step to do the taxes?

03:04 - 32.995 Yes. Again.

03:04 - 35.130 And and but it didn't happen here.

03:04 - 36.765 And what the practice could have done

03:04 - 40.402 in addition is that after the property was sold at a tax sale,

03:04 - 43.572 they had two years after that to either redeem

03:04 - 46.341 or pay that out or pay the taxes.

03:04 - 49.344 I mean, excuse me, pay the tax, redeem by paying the taxes

03:04 - 52.815 or challenge that lack of assessment as an irregularity.

03:04 - 55.184 There were many ways that they could have protected themselves.

03:04 - 56.251 They did none of them.

03:04 - 58.620 And for that reason, they lost their property.

03:04 - 59.988 Counsel. Counsel.

03:04 - 02.958 what? what if excuse me?

03:05 - 06.495 What if in the, 1908 tax sale,

03:05 - 14.736 The, let's see if what would have happened

03:05 - 18.207 if, kplc had gone

03:05 - 21.210 to the tax sale and paid the taxes,

03:05 - 24.813 then there would have been no tax, because if you paid before, would would

03:05 - 28.584 would they have acquired the subsurface rights before the tax them?

03:05 - 32.821 No. At the tax sale they come in and they pay the taxes at the tax sale.

03:05 - 35.357 it has the default happened already.

03:05 - 35.858 I mean,

03:05 - 39.628 if there's yes, if the default then yes, they acquire the surface and subsurface.

03:05 - 41.630 No, no redemption

03:05 - 44.800 if it's a redemption, if you go to the tax sale and you're the record owner

03:05 - 47.002 and you pay the tax on the tax, so that's a redemption.

03:05 - 51.273 And all you get is what you owned, which is not the subsurface rate.

03:05 - 55.477 That's because they had no they would there's been a default.

03:05 - 56.345 There's been a default.

03:05 - 59.348 You buy it that you would acquire a title, which I believe you're on.

03:05 - 03.218 but when you can't do a redemption at the sale,

03:06 - 05.521 you could do it a redemption, but it would have been

03:06 - 07.022 so if there was a redemption,

03:06 - 07.789 there would have been

03:06 - 11.026 a stamp on the, on the, on the deed that would have set up a redemption.

03:06 - 14.997 Not but but but this was not a, this I'm giving you in the hypothetical. Yes.

03:06 - 18.200 Instead of using their agent

03:06 - 22.838 so that in their view, a title wash would be effectuated.

03:06 - 25.941 Instead of doing that, the property is put up for sale

03:06 - 31.580 because there's been a default on the taxes and kplc goes in

03:06 - 36.618 and pays the taxes, they don't acquire the subsurface rights in that context.

03:06 - 37.452 Correct.

03:06 - 39.254 If there hasn't been a default, yes, they're paying

03:06 - 40.889 if they're paying the taxes, I think so, yes.

03:06 - 44.860 But it would have to be you

03:06 - 47.362 would have to have an indication that this was a redemption.

03:06 - 50.999 And I think the way that that occurs is through a stamp on the deed

03:06 - 54.136 saying that this is a redemption only not a not a tax.

03:06 - 57.806 So at their option, well, the treasurer would have done that.

03:06 - 01.243 Interest is not his point is though is is

03:07 - 04.112 you would agree in a tax sale even today.

03:07 - 08.183 And yes, that if a property owner showed up at the tax sale

03:07 - 13.388 the day of the tax sale and wrote a check for the unpaid taxes,

03:07 - 17.125 the tax sale would be called off and it would be a redemption.

03:07 - 20.796 You know, I'm thinking of Neal versus Lacey, Your Honor.

03:07 - 22.030 I think in that case,

03:07 - 26.535 they had both parties show up at the sale and one purchased at the property.

03:07 - 29.538 And the court made a comment in that case that,

03:07 - 33.342 if it wasn't redeemed within two years, it would have constituted a title wash.

03:07 - 35.577 So I'd point to Neal versus laser saying that you're saying

03:07 - 37.746 that the taxpayer has no ability to pay the tax.

03:07 - 38.914 I think they do.

03:07 - 43.051 I think it depends on, on, on on a 10th there, I guess

03:07 - 45.520 I think they do

03:07 - 49.491 I, I honestly, I'm sort of lost by that analysis.

03:07 - 52.094 So they decide whether they get a title.

03:07 - 56.365 I think the treasurer decides that's, that's, that's I, I think the treasurer

03:07 - 56.999 decides, Your Honor.

03:07 - 00.669 That's, that's I would if the treasurer says the current owner gets a title wash,

03:08 - 03.705 why in the world would the treasurer, why in the world would the

03:08 - 08.810 past owner and now current owner, ever a challenge of redemption?

03:08 - 10.178 Because if they do a redemption,

03:08 - 12.547 then they lose the most that they got at the time, right?

03:08 - 13.815 Right. I see your point. You're on.

03:08 - 16.418 I do, and,

03:08 - 18.287 I would go back to Neil versus Lee.

03:08 - 22.291 I think you can pay at the tax sale and redeem.

03:08 - 25.160 I mean, excuse me, pay your taxes and then you don't lose your land.

03:08 - 25.994 I think that's true.

03:08 - 28.897 But that's because you have a duty to pay those taxes

03:08 - 32.000 that know, your Honor, this this.

03:08 - 35.103 You said very clearly many times there's no duty.

03:08 - 39.107 And as I pointed out, you can't you can't say there's a duty.

03:08 - 41.176 And then say a person isn't entitled to contribution,

03:08 - 43.979 and you can't say there's a duty and then not provide personal notice.

03:08 - 46.315 The theory falls apart as soon as you say this.

03:08 - 50.252 A theory, the personal notice would allow the taxing authority

03:08 - 55.190 to look to assets other than the property, to collect the taxes.

03:08 - 58.060 That's what personal notice would get them.

03:08 - 03.532 You get jurisdiction over the person so that as opposed to looking to the land,

03:09 - 07.936 you look to the assets of the individual other than the land.

03:09 - 14.209 But but you said that it this for ceded land, the law was for personal duty.

03:09 - 15.811 You had to have personal notice.

03:09 - 18.814 So I think that's again what I just said.

03:09 - 23.585 Yes, but but for unseated land, it's different rises from your.

03:09 - 25.420 That's if

03:09 - 29.991 that's looking toward the individual assets of the person

03:09 - 35.030 other than looking to the land to pay the taxes

03:09 - 38.300 you got, you know, you, you,

03:09 - 40.001 you know,

03:09 - 43.071 garnish for a bank account or something of that nature.

03:09 - 47.142 That's why you need personal jurisdiction over the owner.

03:09 - 50.278 You don't have personal jurisdiction over the owner.

03:09 - 53.281 You in fact, have jurisdiction over the land.

03:09 - 55.083 And so that's what we say.

03:09 - 57.386 You look to the land.

03:09 - 58.520 You know, I disagree. I'm sorry.

03:09 - 01.423 I go back to you still need personal notice

03:10 - 02.858 if you're going to have an in person home action.

03:10 - 05.861 And I think that was integral to your opinion in Heart of Spring.

03:10 - 07.629 And I agree with you.

03:10 - 08.463 I agree with you.

03:10 - 10.932 These are in grand proceedings, right?

03:10 - 14.970 You can only look to the land to satisfy the debt.

03:10 - 17.439 And that that and

03:10 - 23.078 that is the history of the law regarding an unceded land, as I understand it.

03:10 - 28.984 I mean, and obviously the other cases, leave something to be desired

03:10 - 33.555 since the Third Circuit is asking us to clarify it in this context. But,

03:10 - 37.259 and let me if I, if I may, Your Honor, maybe I can just talk about

03:10 - 41.496 a few of the cases that the district court thought was so, pivotal in this case.

03:10 - 45.400 And really, my my friends, the proctors haven't really talked about those cases.

03:10 - 47.302 I just briefly would like to go through them.

03:10 - 48.870 McCoy versus Masu.

03:10 - 52.240 Bresch versus Cox and City of Philadelphia versus riddle.

03:10 - 56.011 All these these three cases did not raise a power issue.

03:10 - 59.281 and for that reason, they're not controlling.

03:10 - 02.851 McCoy versus Misu had to do with the duty to report, not the duty to pay.

03:11 - 05.020 bresch versus Cox had to do

03:11 - 08.990 with a jurisdictional defect in the sale because the landowner attended

03:11 - 12.561 or attempted to tender payment, well before the sale.

03:11 - 15.430 And then City of Philadelphia versus riddle.

03:11 - 17.132 It's about adverse possession.

03:11 - 21.937 where the argument was that the, the, taxpayer,

03:11 - 26.041 the person who failed to pay his failure to pay constituted abandonment

03:11 - 30.779 for purposes of counting the 21 year requirement, to gain adverse possession.

03:11 - 33.548 And as far as the act of 1887, I know that was a big issue.

03:11 - 34.816 That was brought up

03:11 - 37.452 the act of 1887.

03:11 - 41.957 we have to read that statute, in its statutory context.

03:11 - 46.194 And the context was a 6% interest charge, not changing the law.

03:11 - 49.231 And I know I mentioned,

03:11 - 50.899 the former governor, James Beaver,

03:11 - 53.902 he was the one that signed the act of 1887 into law.

03:11 - 56.738 So he understood unseated land and what that meant.

03:11 - 00.442 And as I said at the beginning of this, he decided that case, Fink

03:12 - 04.312 versus Miller 15 years later, and he didn't cite to the act of 1887,

03:12 - 08.650 and needed that this court and Powell or her to spring your on.

03:12 - 10.018 I had a couple more.

03:12 - 11.953 just two more points, if I may.

03:12 - 17.292 so, alternatively, if you do say there's a duty

03:12 - 21.596 on the part of a landowner to pay our position is that that duty

03:12 - 24.699 was owed to the Commonwealth, and therefore

03:12 - 27.969 only the Commonwealth can complain about a breach, not the proctors.

03:12 - 29.004 This is.

03:12 - 32.040 I would analogize it to tort and contract law.

03:12 - 36.411 Someone who suffers, someone who's, who's owed a duty.

03:12 - 39.714 That's the person who gets to sue, not the proctors.

03:12 - 44.319 And I pointed to Justice Cooley in my my, brief, who made the same point

03:12 - 46.621 that when a tax sale has been made and the state has received

03:12 - 52.160 its revenue, albeit, tartly, but made up with costs

03:12 - 55.630 and interests, there's no wrong been to done to the state.

03:12 - 57.899 So how can one landowner insist

03:12 - 01.002 that the other shall discharge a duty to the government for his protection?

03:13 - 04.739 And we've also relied on the statute of limitations.

03:13 - 08.243 our position is that, although the proctors say

03:13 - 09.210 they're really just challenge,

03:13 - 12.213 they're trying to figure out the effect of the sale, what they're in fact,

03:13 - 14.583 challenging is an irregularity in the sale.

03:13 - 17.586 The Third Circuit actually made this observation

03:13 - 21.056 in their certification opinion in a in a point heading.

03:13 - 26.027 They asked whether Macaulay status as an agent of the,

03:13 - 29.264 CPSC constituted a jurisdictional defect.

03:13 - 30.098 And it's not.

03:13 - 31.766 It's a mere irregularity.

03:13 - 36.771 And that's something that has to be raised within two years after the tax sale.

03:13 - 37.505 And it wasn't.

03:13 - 41.309 if if

03:13 - 44.312 there's no more questions, I'll wrap up, Your Honor.

03:13 - 44.679 Okay.

03:13 - 47.983 If the practice brief is any indication, in a moment, you'll hear from the attorney

03:13 - 51.286 a lot about stealing their land and how they are innocent victims.

03:13 - 54.055 Before this court is a legal question.

03:13 - 57.058 And that legal question is of the practice on making.

03:13 - 00.095 Because the taxes on the Haynes warrant weren't paid,

03:14 - 03.298 and because the practice, they didn't try to redeem the land after the sale,

03:14 - 06.701 and they didn't attempt to timely challenge the sale.

03:14 - 10.005 This court is a court of law, and it decides legal questions.

03:14 - 14.509 And the answer to the Third Circuit's legal question is governed by Powell

03:14 - 18.480 and heard a spring and not by dicta or digressive statements

03:14 - 22.784 from legally distinguishable cases, and certainly not by rhetoric.

03:14 - 24.819 Thank you, Your Honor. All right.

03:14 - 25.854 Thank you very much.

03:14 - 28.790 We see why the Third Circuit sent this to us.

03:14 - 32.794 It's a complicated issue,

03:14 - 34.863 Mr. Aaron. Check.

03:14 - 36.898 may I please the court?

03:14 - 42.103 And, I'm Mark Aaron Schick, representing the trust of the Proctor heirs.

03:14 - 43.204 And with me is Mr.

03:14 - 46.508 Weigel, Your honors,

03:14 - 51.780 I'm going to sort out all of the misstatements

03:14 - 54.783 and misstatements of law and in fact, a fact

03:14 - 57.852 that my opponent, presented to you.

03:14 - 01.589 And I'm going to answer all of the questions that you asked

03:15 - 03.291 in due course.

03:15 - 06.294 If you give me time.

03:15 - 10.131 PJC is advancing

03:15 - 13.334 two propositions in this case,

03:15 - 17.972 two propositions that are unsupported by any case law.

03:15 - 21.876 And when you just scratch the surface, they make no sense.

03:15 - 24.979 So let's just start there.

03:15 - 28.717 First, were owners of unseated land exempted

03:15 - 33.321 from everyone else's duty in the 19th century to pay their taxes,

03:15 - 37.459 and decidedly not.

03:15 - 40.929 And second, was it even true in Pennsylvania?

03:15 - 43.932 In fact, in anywhere, anywhere

03:15 - 47.335 that someone could acquire a surface estate?

03:15 - 50.705 Not by deed, surface estate.

03:15 - 54.075 That's what it says, not pay taxes on it.

03:15 - 59.347 Go to a tax sale on the property and not only get back their property,

03:15 - 02.717 but have the state processes the power of the state,

03:16 - 06.121 take a neighbor's property and give it to them as well.

03:16 - 09.924 And that makes no sense either.

03:16 - 12.093 The analytic framework for the Third

03:16 - 15.096 Circuit's questions is the power rule,

03:16 - 16.731 not Herder Springs.

03:16 - 20.602 Herder Springs is a secondary part, which I will address, but the power rule

03:16 - 24.939 is the analytical framework, because that rule says

03:16 - 29.577 that you cannot profit by your wrongdoing

03:16 - 33.248 and improve your title, or get someone else's property.

03:16 - 37.385 The difference between the case before you and Herder

03:16 - 40.388 Springs are two important facts, and I think justice.

03:16 - 43.892 You, put her finger on it earlier,

03:16 - 47.262 and that is Herder Springs.

03:16 - 51.766 You had a bona fide good faith

03:16 - 54.769 purchaser to tax a stranger to a title

03:16 - 00.341 who owned no duty to pay the owners taxes

03:17 - 05.446 owed, no duty to pay to report the owners severance.

03:17 - 07.448 This was a stranger.

03:17 - 11.219 And that person can go to a tax sale and buy whatever was up at the tax sale.

03:17 - 13.888 And the second is

03:17 - 17.091 the, landowners

03:17 - 20.295 and Herder Springs did not report their severance.

03:17 - 23.131 They violated their duty

03:17 - 24.065 in this case.

03:17 - 27.068 Kplc did report its severance.

03:17 - 31.406 Here are the key facts that

03:17 - 34.843 to sort through that really matter in this case,

03:17 - 39.447 Kplc had a deed which

03:17 - 41.683 expressly

03:17 - 46.154 reserved the rights to subsurface rights to Proctor and Hill folks,

03:17 - 51.292 and all they got were this surface rights in 1904.

03:17 - 54.662 They paid their taxes and they had their surface rights.

03:17 - 56.531 Didn't get anything else.

03:17 - 00.768 Same in 1905, same in 1906, 1907.

03:18 - 02.871 They didn't pay council. Just clarify.

03:18 - 05.607 You said they paid their taxes.

03:18 - 09.410 They paid the taxes on their surface assessment.

03:18 - 10.678 So you're you're saying

03:18 - 14.449 factually there were separate assessments for surface and subsurface

03:18 - 17.886 what the district court found was that, first of all,

03:18 - 21.856 it will not matter for my analysis as I go forward for the Powell rule.

03:18 - 25.093 But second, the district court said

03:18 - 28.329 they reported their surface rights.

03:18 - 32.066 Therefore, we presume that that was the assessment that the search

03:18 - 34.102 was charged with assessing those rights.

03:18 - 38.139 That's how the statute works and that there was no value,

03:18 - 40.975 no assessment, no value in Herder Springs.

03:18 - 44.312 In fact, this court Chief Justice Baer said,

03:18 - 48.650 if there is no value, there is no assessment.

03:18 - 52.020 And that is what is in the record of this case.

03:18 - 55.657 Third circuit has asked you to look at the record, the findings

03:18 - 59.027 in this case, not they told you you're not doing fact finding.

03:18 - 02.430 You're taking the record as it is proposed to you.

03:19 - 03.865 And as the district court found

03:19 - 07.902 now. The,

03:19 - 11.205 the the other step I was taking it

03:19 - 14.542 in terms of the facts are then in 1907,

03:19 - 18.413 they don't pay their taxes on the surface estate, no doubt,

03:19 - 23.251 as you can read in the cases, because they had taken

03:19 - 26.254 whatever they needed, the lumber company took whatever they needed

03:19 - 29.791 at that point in time, and they were either doing a business deal

03:19 - 33.127 to force a reassessment because it's a triennial assessment,

03:19 - 37.031 or they just didn't pay their taxes.

03:19 - 44.038 My opponent is saying suddenly each year when they pay their taxes,

03:19 - 47.709 they have only their surface estate, but suddenly they don't pay their taxes

03:19 - 48.910 and they go to a tax.

03:19 - 53.147 So and they wind up with their surface estate and a reward, a bonus

03:19 - 55.249 that the state,

03:19 - 58.086 the power of the state, takes somebody else's property

03:19 - 59.620 and gives it to them as well.

03:19 - 00.922 That's nonsensical.

03:20 - 01.622 And here's why.

03:20 - 03.591 We know it's nonsensical and here's why.

03:20 - 08.396 We know that there was a duty, Justice Donahue,

03:20 - 13.034 justice Mundy, everyone else who asked this makes no sense.

03:20 - 15.169 Of course, there was a duty.

03:20 - 18.740 I want to start with the statutes that create the duty.

03:20 - 22.844 I like to start with statutes, and then I'll go to the case law.

03:20 - 27.815 The 1804 statute was an innovation, no doubt

03:20 - 31.853 they were having trouble getting unseated

03:20 - 34.856 land owners who lived elsewhere to pay their taxes.

03:20 - 36.257 It's a burgeoning state.

03:20 - 37.759 They need the taxes.

03:20 - 39.494 New government, local governments.

03:20 - 41.562 They want their taxes.

03:20 - 45.600 So rather than give a break to the unseated landowners

03:20 - 49.037 who live out somewhere else, make their life easier.

03:20 - 51.939 They made their lives harder.

03:20 - 54.642 They said, no more in persone,

03:20 - 58.846 remedy for you, which is what they had for the unseated landowners.

03:20 - 00.481 We're not going to go chase you.

03:21 - 03.051 What we're going to do is something harsh.

03:21 - 04.786 You don't pay those limited taxes.

03:21 - 07.789 We're going to put an interim proceeding to take your land.

03:21 - 11.025 In the 1804 statute

03:21 - 15.096 they gave one year before that interim proceeding could start.

03:21 - 19.667 What is supposed to happen in that one year, the land is going to

03:21 - 24.172 get up and go down to the assessor's office and pay taxes in that year.

03:21 - 28.076 And the Bruen case says so in that year,

03:21 - 30.478 that that

03:21 - 34.482 the owner can come in and pay the taxes and avoid losing their land.

03:21 - 37.251 They gave him a grace period a year

03:21 - 38.719 in 1806.

03:21 - 42.457 In the next statute, what happens in the next statute?

03:21 - 48.529 They say that if you become an owner of unseated land,

03:21 - 51.866 you have to report who you are, your ownership.

03:21 - 56.804 Why, two years later, are they saying to people, report your ownership.

03:21 - 00.675 If you don't have a duty to pay the taxes, why are they wasting their time?

03:22 - 04.545 In 1815, they hammer it down again

03:22 - 07.849 in section one and three and four of that statute.

03:22 - 11.219 It's all about the owner can come back in

03:22 - 14.388 and the owner can redeem the owner.

03:22 - 17.758 They didn't say the land walks back downtown and redeems.

03:22 - 20.695 This is all about the owner.

03:22 - 22.363 Now the court.

03:22 - 26.134 I'm going to go to 1887 and a second, and I'm going to show you why

03:22 - 27.869 we're not talking about elephants and mice,

03:22 - 33.741 but the court now has 60 years of cases.

03:22 - 37.378 We recite some of them in our brief.

03:22 - 40.648 But let's start with Katanning.

03:22 - 44.485 You're this court unanimously.

03:22 - 48.756 Persons pay taxes, not property.

03:22 - 49.790 This is so.

03:22 - 53.661 Even when the remedy for the recovery of the tax is in rem,

03:22 - 57.465 the law only takes hold of property

03:22 - 01.002 as a means of enforcing the duty of the person.

03:23 - 04.205 This is your words. This court's words.

03:23 - 06.874 It would be absurd to think otherwise

03:23 - 10.144 because inanimate things cannot perform duties.

03:23 - 13.714 And this court said so again

03:23 - 17.985 in, in, in British, in fact, in the

03:23 - 23.357 let me get the name of the,

03:23 - 28.196 sort re case.

03:23 - 31.699 This court said directly.

03:23 - 34.335 I'm sorry.

03:23 - 35.436 It's the strange case.

03:23 - 40.041 In 1841, this court said directly a vigilant owner has nothing to fear.

03:23 - 41.776 All he has to do is pay his taxes.

03:23 - 45.813 And he's bound to do this upon every principle of equality and justice.

03:23 - 49.250 That exact sentence was quoted

03:23 - 53.187 twice by Chief Justice Bear and Herder Springs to say

03:23 - 58.326 that Herder Springs says there's no duty when this court quotes

03:23 - 02.330 that statement from 1841, and it's the same in the Brice case.

03:24 - 07.268 The payment of taxes on sun unseated land is a duty and a failure to perform.

03:24 - 08.402 It is the fault of the owner.

03:24 - 11.005 And as I said, Herder Springs says that as well.

03:24 - 15.743 And it's not a moral duty, as they try to say, because you said

03:24 - 21.782 in McCoy, in Laird in Katanning that this is a legal duty you can't take.

03:24 - 26.287 Somebody is in Ram property without the breach of a legal duty or

03:24 - 30.891 your I, I'm completely follow what you're saying

03:24 - 33.861 and I understand what you're saying, but there seems to be a factual,

03:24 - 39.333 factual legal dispute between the two parties here.

03:24 - 42.737 One whether

03:24 - 45.172 whether the taxing authority was on

03:24 - 48.175 notice of the severance of the estates,

03:24 - 53.481 and two, whether the assessment was based

03:24 - 57.585 only on the surface owners estate,

03:24 - 02.490 because their theory sort of relies on the idea

03:25 - 05.493 that if there was a duty, it was a duty owned by everybody.

03:25 - 09.397 Okay, so let me let me try to sort that out.

03:25 - 12.199 We're going a little bit over to the second breach of duty.

03:25 - 13.634 We were talking about duty to pay here.

03:25 - 18.339 But their point at this point is this point is your client had a duty to pay to

03:25 - 20.975 if there was a duty to pay, it was a duty to pay by everybody.

03:25 - 24.145 There are two separate estates here.

03:25 - 26.414 They were reported as severed.

03:25 - 30.318 The subsurface owner has no duty to pay the other guy's taxes.

03:25 - 34.055 I mean that that's like fundamental and yet factual

03:25 - 37.058 dispute over whether

03:25 - 40.461 whether there was actually whether the assessment here

03:25 - 45.032 was purely for the surveyor to state, you have to I'll go to Herder.

03:25 - 48.002 Let's just forget about Powell for a second.

03:25 - 50.538 Herder says you have a duty to report.

03:25 - 53.708 If you don't report, you're at risk.

03:25 - 56.444 You violated your duty if you're the owner.

03:25 - 57.945 By the way, just footnote.

03:25 - 00.181 Who doesn't report?

03:26 - 01.549 That's the power rule.

03:26 - 04.852 You can't go in and get something more than what you failed to report about.

03:26 - 07.521 So Powell hurts them.

03:26 - 10.124 But put that aside.

03:26 - 14.028 If you report the way the 1806 statute, 1815

03:26 - 18.165 statute, the way the case law analyze is, that is,

03:26 - 20.401 the assessor

03:26 - 25.039 is charged at that point, can only assess on what was reported.

03:26 - 30.010 The surface owner assessment can only assess on what was reported.

03:26 - 33.381 That's what the assessor did with Kplc

03:26 - 36.384 and its predecessor

03:26 - 38.552 in 04567.

03:26 - 41.355 That's the charge on the assessor.

03:26 - 43.624 That's the obligation of the assessor.

03:26 - 46.727 Anything more is avoids is a void sale.

03:26 - 48.162 It's a void assessment.

03:26 - 50.331 It's like as if it never happened.

03:26 - 53.567 And in Herder Springs, the chief said, and I keep saying that.

03:26 - 54.769 But he wasn't the chief then.

03:26 - 56.670 But to me he's always the chief.

03:26 - 00.441 The this court said that

03:27 - 04.512 you presume that the assessor has acted rightly

03:27 - 08.582 so, that that's what he did, and that's what the district court finds.

03:27 - 10.184 The district court finds. Yes.

03:27 - 15.122 There was reporting and we presume that it was only on the assessment.

03:27 - 18.559 After all, it was only kplc paying the taxes each year.

03:27 - 21.996 They paid the taxes and they only had a deed

03:27 - 25.032 for their surface rights before the tax sale.

03:27 - 28.102 I think the question is a little bit different.

03:27 - 30.371 And I said, I thought you might have answered it earlier.

03:27 - 33.674 the district court found much. Yes.

03:27 - 37.611 We discussed in Herder Springs that there was no value

03:27 - 42.116 attached to the subsurface rights, so there was nothing to assess.

03:27 - 44.785 That didn't mean there weren't subsurface rights.

03:27 - 47.588 They just did not have a value attached to it.

03:27 - 50.124 Do I understand that that is true?

03:27 - 52.059 And that is also the answer.

03:27 - 55.429 you know, it's not like there was coal everywhere

03:27 - 58.432 all over northeast Pennsylvania and all these different counties.

03:27 - 03.404 And if and these were wild lands with no value

03:28 - 08.108 and no no obvious activity on them and no obvious activity nearby.

03:28 - 11.745 And so it is not surprising

03:28 - 15.182 that much of the land, from an assessor's point of view, had no value.

03:28 - 17.084 And if it has no value, that's the end.

03:28 - 20.187 My opponent makes up these conventions like, well,

03:28 - 23.691 the assessor still had to give a tax bill that said zero on it says who?

03:28 - 25.493 Where does that come from?

03:28 - 29.663 The the what actually happened was as this court

03:28 - 33.133 said in Herder Springs, no value, no assessment.

03:28 - 35.903 Not like you generate some zero tax or something.

03:28 - 38.572 No value, no assessment. And so

03:28 - 43.377 so I will get back if I haven't fully answered your question, Judge Robertson.

03:28 - 50.117 But I want to go on to the duty because my opponent is conflating all sorts of law.

03:28 - 54.321 And the first place he conflates is, well, there are these other cases that say

03:28 - 58.826 the land is responsible, the land has an obligation, the land has a liability.

03:28 - 02.129 So it must be that they had this massive fiction

03:29 - 04.899 that only the land had a duty.

03:29 - 10.237 Now there's two rows of cases in the 19th century from this court

03:29 - 15.709 to that, say doody, doody, doody, legal, legal, legal.

03:29 - 19.480 And these are some of the ones, starting with Kittanning, that I have cited.

03:29 - 25.085 There's another set of cases that says the consequence of breaching the duty.

03:29 - 28.556 What happens when it's breaches is in an REM proceeding.

03:29 - 31.725 We in that proceeding, we don't care about ownership.

03:29 - 33.694 We know it's a piece of land

03:29 - 36.864 that's going to be sold because you didn't pay your taxes.

03:29 - 42.570 And yeah, the land is then responsible and, and, and

03:29 - 47.308 the, the two main treatises of the time.

03:29 - 50.344 I'm not this is are not random citations.

03:29 - 54.081 The two main treatises purely on taxation.

03:29 - 57.217 Black Black's Law dictionary.

03:29 - 59.219 Black on taxation.

03:29 - 02.089 Both of them say exactly that, that

03:30 - 05.526 any kind of colorful language about the land is responsible.

03:30 - 08.629 They're talking about the consequence of the breach of the duty

03:30 - 10.531 these cases harmonize.

03:30 - 13.534 You have a duty to pay. You don't do it.

03:30 - 18.539 The land is responsible as a remedy for covering what you should have done.

03:30 - 23.444 So then I get to the 1887 statute

03:30 - 26.280 where they talk about elephants and mice and cats today.

03:30 - 29.383 Also, the 1887 statute

03:30 - 35.456 is a they accuse us of reading a statute, plain English.

03:30 - 36.590 Can you believe that?

03:30 - 40.127 They accuse us of reading a statute the way they should be read

03:30 - 42.262 in plain English.

03:30 - 45.833 But the plain English is that the owner has an obligation

03:30 - 50.537 to pay the taxes within a year, and if not as a 6% interest.

03:30 - 54.441 The 1887 statute is just picking up 80

03:30 - 58.612 years of 19th century law and stating it again.

03:30 - 03.751 The innovation was a 6%, interest for failure to pay.

03:31 - 06.787 Because if you look at the past statutes, there was no interest rate.

03:31 - 12.593 So it and then in 1945, the legislature says it again

03:31 - 16.063 before the concept of ceded and unseated failed.

03:31 - 19.767 So what are the implications of the existence of the duty?

03:31 - 21.101 That's the herder rule.

03:31 - 23.070 I mean, I'm sorry, the power rule.

03:31 - 27.741 That's why this is a power one analysis case in Powell.

03:31 - 32.513 It clearly says that you cannot do wrong and benefit.

03:31 - 35.883 This is fundamental. This is a Cooley said.

03:31 - 41.622 This is such a fundamental rule as to not even require any explanation.

03:31 - 44.525 And black said the same. It's universal.

03:31 - 47.528 It's a universal rule. You cannot profit.

03:31 - 50.097 What you used to be able to get away with that.

03:31 - 51.432 Well yeah.

03:31 - 52.900 Well then I'll explain to.

03:31 - 54.868 But it's so basic.

03:31 - 58.372 But I'm going to tell you something interesting, and I suspect it might even

03:31 - 00.474 be. It'll be interesting for the whole court for sure.

03:32 - 02.910 But I think for you, justice worked.

03:32 - 05.579 And that is let's deconstruct for a second.

03:32 - 06.714 Powell.

03:32 - 09.083 Let's look at what the Powell Court

03:32 - 12.086 relied on in setting forth the Powell rule.

03:32 - 15.322 They relied on three sources

03:32 - 18.592 of law one, Michigan cases.

03:32 - 19.793 Extremely important.

03:32 - 23.263 And I will explain why two other states

03:32 - 26.433 cases and three, the Cooley and Black treatises.

03:32 - 30.104 The Michigan case. Why is this important?

03:32 - 31.405 Here's why it's important.

03:32 - 34.274 This is kind of a cool fact of legal history.

03:32 - 38.979 The case that they cite in

03:32 - 42.082 the Powell case is Blackwood,

03:32 - 45.052 written by Chief Justice Cooley in Michigan,

03:32 - 48.822 the chief justice who wrote the treatise, and he said

03:32 - 53.160 there is a duty on unseated land owners to pay their tax.

03:32 - 55.162 That's what he said in that case.

03:32 - 58.799 The second case, which the chief was part of the panel,

03:32 - 02.136 the Hirsch case in Michigan.

03:33 - 05.839 This says that there are these situations.

03:33 - 09.076 Another conflation that I'll get to here of adverse claimants

03:33 - 12.279 to the same piece of land, the same title.

03:33 - 15.816 Two people have a colorable right to the same plot.

03:33 - 18.919 This is classic title washing.

03:33 - 23.290 You go and you figure out how to clear the defect on that title.

03:33 - 28.862 This is not a case, neither the surface or subsurface owners were claiming each

03:33 - 32.666 other's property, or a defect on their property or anything of the sort.

03:33 - 36.203 So Cooley says the Hirsch case says

03:33 - 39.773 don't conflate the adverse claimant cases.

03:33 - 41.575 They're different.

03:33 - 45.679 And then the third case, and this is the cool part, is Cooley versus Waterman.

03:33 - 50.017 The chief is now a plaintiff in the case.

03:33 - 51.952 What happened?

03:33 - 54.188 His identical door case.

03:33 - 59.393 His neighbor defaulted on a bunch of lots and then claimed Cooley his lot.

03:33 - 04.064 Poor justice Chief Justice Cooley's lot as part of his own

03:34 - 06.867 and then went to try to redeem it.

03:34 - 09.870 I mean, to purchase it all at the tax sale.

03:34 - 13.273 And the court said Plaintiff Justice Cooley, plaintiff

03:34 - 16.310 who didn't participate, it says so in the opinion

03:34 - 20.714 you didn't lose your property.

03:34 - 22.282 He can't benefit

03:34 - 25.452 by defaulting on his lots and go take you.

03:34 - 29.089 If you're his your neighboring lot.

03:34 - 34.494 And it is this set of cases that go into the Cooley treatise on taxation.

03:34 - 35.863 It's only five pages long,

03:34 - 39.533 and you will see it's a duty to pay the power rule doesn't

03:34 - 43.637 let you take your neighbor's property, and the adverse interest against,

03:34 - 47.741 the same property that two people claim title to.

03:34 - 49.676 that's different.

03:34 - 52.346 That's a classic title defect.

03:34 - 54.548 So I think that's kind of a pretty cool fact.

03:34 - 00.287 But what they are saying is that Cooley versus Waterman was wrong.

03:35 - 02.089 That that everybody should have known.

03:35 - 03.924 Chief, you lost your property.

03:35 - 05.926 They're saying that that applies here today

03:35 - 09.529 to let me explain to you what is actually happening here

03:35 - 12.532 in a couple of ways that I know that that this court is,

03:35 - 15.402 you know, you can see in the advocacy briefs.

03:35 - 17.804 Let me explain a couple of things. First of all,

03:35 - 20.474 they are

03:35 - 24.211 conflating duty and responsibility

03:35 - 27.214 that remedy conflating them

03:35 - 29.750 when no case ever conflated them.

03:35 - 32.819 Two, they're conflating adverse claimants

03:35 - 36.623 to the same plot with steel taking.

03:35 - 39.893 Okay, your neighbor's property by power of the state,

03:35 - 43.697 conflating those when they are unconsolidated,

03:35 - 46.700 and in addition, they are trying to conflate conflate

03:35 - 52.272 mere irregularities that you clear up in two years with the effect of a tax sale

03:35 - 56.176 in Fisk and in Lyman, and in Herder Springs itself.

03:35 - 00.847 This court has said over and over again, when you get to the effect of a tax sale,

03:36 - 01.581 that could come up

03:36 - 06.787 any time in the future or no time, maybe nobody claims a problem in Herder.

03:36 - 09.790 It came up six years later in,

03:36 - 12.092 Brainard case.

03:36 - 15.996 30 years later, the if somebody bothers to come in

03:36 - 18.966 far in the future and say, that's my property

03:36 - 21.969 and it's because of the tax sale, and I want to go over the effect of it.

03:36 - 25.672 You come in any time the court sits here to decide,

03:36 - 28.976 do you have that property or didn't you, as a result of that tax?

03:36 - 33.046 So they say, well, no, you should have gone in in two years

03:36 - 34.047 and said, hey, wait a second.

03:36 - 35.115 I want everybody to know that

03:36 - 38.285 the effect of this tax sale is I didn't lose my subsurface rights.

03:36 - 43.590 Why in this case here where we're dealing with sophisticated people,

03:36 - 47.494 none of them believed at the time in 1908

03:36 - 51.465 that the subsurface rights were lost to CPCs.

03:36 - 55.702 None of them believe that they they knew that it.

03:36 - 00.574 McCauley went in and got a redemption, and they proceeded for the next ten,

03:37 - 06.680 12 years where the er, the proctors had the subsurface rights.

03:37 - 08.181 They were even leasing out

03:37 - 11.752 rights to see if there was coal in some of the subsurface property.

03:37 - 15.155 And in the CPO c transaction.

03:37 - 20.627 I mean, this part is, is really, a misstatement.

03:37 - 24.164 And this is when I said that I don't lightly say that in the CPO,

03:37 - 29.970 the transaction, the deed that went to Kplc said, you got surface rights.

03:37 - 32.973 It's not a subject to it. Says

03:37 - 35.609 reserve.

03:37 - 38.845 The deed says reserving and saving

03:37 - 42.916 onto Proctor and Hill all the minerals, coal,

03:37 - 46.119 oil, gas or petroleum under the surface of any

03:37 - 50.223 or all of the lands, which includes this warrant.

03:37 - 53.927 That's not subject to that's a plane reservation in the deed.

03:37 - 57.130 And PGC knew it in 1920.

03:37 - 01.535 They say, well, maybe their title examiner was advancing a minority view.

03:38 - 03.870 No, it read it's in the record.

03:38 - 06.873 He was saying you don't have the subsurface.

03:38 - 10.010 And for the next 70 years until somebody found

03:38 - 13.013 Marcellus Shale, they all acted in the same way.

03:38 - 15.682 Now here is the part that I wanted to get to. Mr..

03:38 - 17.751 Before you get before you get to that point, I want to

03:38 - 21.655 I want to make sure I understand you're you're purely distinguishing this case,

03:38 - 25.725 on the Powell methodology.

03:38 - 32.833 In other words, if the agent of CP C did not purchase it,

03:38 - 36.136 but it was a good for good faith purchaser for value,

03:38 - 39.206 you would concede a title wash happened, I would.

03:38 - 39.973 Okay.

03:38 - 41.041 Thank you

03:38 - 44.878 that if there was a good faith purchaser and if the whole warrant

03:38 - 51.184 was put up for a Texaco so chaos chicken,

03:38 - 54.354 little stuff, things you always hear when they know they're in trouble.

03:38 - 57.023 Here's the reality.

03:38 - 01.695 There's about 300 and 350 tracts, parcels

03:39 - 05.999 that are Kplc McCauley, or in some cases, Jones.

03:39 - 10.804 The general counsel who took over for McCauley of Kplc.

03:39 - 13.006 There's about 300, 350 parcels

03:39 - 17.444 collectively with the three families, the founders

03:39 - 20.814 of so much industry in Pennsylvania, which I'll address in a second.

03:39 - 22.616 There's about that number.

03:39 - 25.619 And for this purposes, they're identical.

03:39 - 29.356 There's surface rights to kplc reservations, to the proctor's

03:39 - 32.626 tax sales from a McCauley or a Jones or some agent.

03:39 - 37.597 Then deeds that show that all that Kplc had was surface

03:39 - 41.201 and the errors kept the subsurface.

03:39 - 46.473 You decide this case the way I am suggesting that there was a duty to pay

03:39 - 51.111 and the power rule applies, those cases all go away.

03:39 - 54.381 You will never see these title cases again,

03:39 - 57.384 and it is the largest range of dispute

03:39 - 00.587 that remains involving Marcellus Shale.

03:40 - 03.456 Related to the point

03:40 - 05.192 in the Donovan and read amicus

03:40 - 08.895 brief about, the uncertainty being priced in.

03:40 - 14.201 Well I I'll I'll address that in a slightly different way.

03:40 - 17.204 I think what you're you're getting to that. Yes.

03:40 - 18.004 Yeah.

03:40 - 20.807 Well, first of all there will not be chaos.

03:40 - 23.677 There will be stability.

03:40 - 29.616 If you decided our way, if you just stability in reality

03:40 - 33.286 of what the lawyers the you decided there way.

03:40 - 37.157 We got to go back on every one of these and fight was there reporting.

03:40 - 38.325 Was there not reporting.

03:40 - 40.160 Was there a sale? What happened at the sale?

03:40 - 41.795 What happened after the sale?

03:40 - 46.066 All of what the district court dealt with for several years,

03:40 - 51.271 and developing the record that becomes necessary in almost all the cases

03:40 - 56.309 and and the notice issue, which they talk about, that's

03:40 - 59.379 but also that goes away because it's not

03:41 - 02.949 the subsurface owners who were claiming that they should have received

03:41 - 04.651 some more notice.

03:41 - 06.586 You don't even get to that issue.

03:41 - 10.490 The the subsurface owners kept their subsurface rights.

03:41 - 13.093 Here's the

03:41 - 16.296 meta issue of what's what's going on.

03:41 - 17.631 And I and I

03:41 - 21.334 you get this out of the amicus briefs, you get this out of the dynamics of briefs.

03:41 - 25.705 There is a closed loop of people who were paying attention to this issue.

03:41 - 28.708 They all know who each other is, and they all know where the tracks are.

03:41 - 32.879 And what happened was there was some clever investors from IDC.

03:41 - 35.582 It's in the amicus. You can read it.

03:41 - 38.551 Who said, gee, you know, Kplc is in bankruptcy.

03:41 - 40.987 A few years ago,

03:41 - 45.392 just by all these stale, these old deeds, let's see what we can make out of them

03:41 - 50.363 and came up with this idea that, hey, maybe if we look at this again,

03:41 - 53.600 the Treasury sales all back then were several Treasury sales,

03:41 - 56.503 passed along subsurface rights.

03:41 - 58.138 We'll take a flier.

03:41 - 01.141 We'll we'll just take a speculation, a flier.

03:42 - 05.111 Now, what they went and did was to bring a different case,

03:42 - 10.850 which is in the record, the IDC case as between these speculators,

03:42 - 15.488 these Wall Street types, a few of them and PGC.

03:42 - 19.426 And they said, you know, if you have any subsurface rights

03:42 - 22.429 and we don't know if you do or you don't, we think you do.

03:42 - 25.632 That has to be litigated. That's this case.

03:42 - 28.435 Our rights in bankruptcy trump your rights.

03:42 - 33.006 So what the fight really is all about here is whether or not

03:42 - 36.376 some speculators reason speculators

03:42 - 39.446 have the royalty stream, which runs 16

03:42 - 42.449 to 22% depending on negotiating.

03:42 - 45.819 and what's under or what they think might be underground,

03:42 - 51.057 whether they get the royalty or the heirs of these families

03:42 - 54.427 who invested enormous

03:42 - 57.997 amounts of money to create a gigantic leather industry.

03:42 - 01.801 When we had virtually no significant industry in Pennsylvania

03:43 - 05.004 in the early 19th and the mid 19th century,

03:43 - 09.242 and then went on to help facilitate a lumber industry

03:43 - 12.512 where towns are being built and railroads are being

03:43 - 16.850 laid and houses are being built and jobs are created, and then went on

03:43 - 21.388 and kept the subsurface rights and allowed for leases to explore.

03:43 - 23.289 Maybe there's coal somewhere.

03:43 - 25.291 And that created more industry.

03:43 - 28.294 And now their heirs have these subsurface rights

03:43 - 31.164 and voila, there's maybe some more shale

03:43 - 34.334 shale underneath.

03:43 - 38.004 Some of these tracks won't be under all the tracks, some of these tracks,

03:43 - 41.808 and they want to come to you and say, take it all the way,

03:43 - 45.078 because the PGC in 1920

03:43 - 48.615 is, what, stupid different

03:43 - 52.852 than the PGC in 2020 and 2024?

03:43 - 55.688 No, this is it.

03:43 - 59.526 And and and I'll wrap up here because I'll give you a powerful analogy.

03:43 - 02.729 This is asking you to get into your Delorean

03:44 - 06.032 and go back in time

03:44 - 09.769 and control all these areas of the I'm sorry, conflate

03:44 - 14.374 duty and remedy, conflate irregularity and effect of attacks.

03:44 - 18.178 They'll conflate adverse interests, and you can take your neighbor's

03:44 - 21.181 property, ignore the power rule like it didn't exist.

03:44 - 23.383 Go back in time and change all that law.

03:44 - 24.784 Get back into your Delorean.

03:44 - 26.719 Come here today and say, you know,

03:44 - 29.222 the law really was different.

03:44 - 32.225 there's a different owner of the subsurface rights.

03:44 - 35.195 It's not you, the Proctor heirs.

03:44 - 38.164 Anyway, if there are any other questions, I'd.

03:44 - 39.532 I'd be happy to hear them.

03:44 - 42.535 They're probably some some things I didn't cover.

03:44 - 47.941 I don't think there's anything you didn't cover.

03:44 - 48.875 All right, well, thank you.

03:44 - 49.709 Thank you very much.

03:44 - 52.712 Thank you. Folks.

03:44 - 56.015 Next case, Mr..

03:44 - 59.819 The next case

03:44 - 02.822 the court will hear argument on is Barbara Triano versus

03:45 - 06.459 the City of Philadelphia Workers Compensation Appeal Board.

03:45 - 09.529 The appellant in this case is Barbara

03:45 - 12.532 Triano, who was injured in 2016.

03:45 - 16.436 In the course and scope of her employment as a City of Philadelphia police

03:45 - 18.004 officer, Mr.

03:45 - 22.242 Yano injured her foot during her investigation of a car accident

03:45 - 26.679 when she stepped into a hole left by Pico, a utility company

03:45 - 30.517 which had previously replaced the pole after the accident.

03:45 - 34.354 Mr. Yano received benefits under the Heart and Lung Act,

03:45 - 38.791 which provides police officers and other first responders who are injured

03:45 - 42.562 with a payment of their salary and medical and hospital expenses.

03:45 - 46.399 Mr. Yano brought a civil lawsuit against the utility

03:45 - 49.569 company Peco, which settled in 2019.

03:45 - 54.674 The city of Philadelphia then filed a modification review petition

03:45 - 59.612 on April 7th of 2020, seeking reimbursement of benefits paid

03:45 - 03.950 based on its subrogation lean against Miss Tiana's recovery.

03:46 - 07.654 In her civil suit against Peco,

03:46 - 11.124 a subrogation lien is a legal right of a third party

03:46 - 14.961 to request reimbursement from a monetary settlement or award.

03:46 - 18.731 The Commonwealth Court affirmed the order of the Worker's

03:46 - 22.635 Compensation Appeal Board, and found that the City of Philadelphia was entitled

03:46 - 26.239 to subrogation for benefits paid under the heart and Lung Act.

03:46 - 31.377 Miss piano is now appealing that order, and argues that the city does not have

03:46 - 35.615 a right to subrogation for benefits received under the heart, and Lung Act.

03:46 - 38.785 Thank you, Mr.

03:46 - 39.452 Manor.

03:46 - 43.623 In this appeal, we consider whether a self-insured government entity

03:46 - 47.393 may suffer great heart and lung benefits against a third party

03:46 - 51.331 settlement received by a police officer under its employ

03:46 - 56.836 who was injured in a work related injury which did not involve a motor vehicle.

03:46 - 58.972 Please proceed.

03:46 - 00.273 Good morning, Your Honor.

03:47 - 04.410 Chief justice, fellow justices, may it please the court?

03:47 - 06.479 I'm Steven Robin Wright, represent Mr. piano.

03:47 - 07.480 I'm here today with David

03:47 - 12.185 String from my law firm, who's co co-counsel on this case?

03:47 - 14.587 this is not

03:47 - 19.859 factually we agree with basically on all of the facts here. Mr.

03:47 - 23.129 piano was a police officer in Philadelphia, injured,

03:47 - 27.300 in the line of duty when she investigated a motor vehicle crash.

03:47 - 29.202 But this is not a motor vehicle case.

03:47 - 32.472 She came on the scene afterwards, and she was injured

03:47 - 36.976 when she stepped in a hole, left by PCO at the property.

03:47 - 39.646 that's not really in dispute.

03:47 - 44.851 What did happen is there was a third party case and PCO settled that matter with us

03:47 - 48.154 while she was receiving heart and lung benefits,

03:47 - 51.357 which were not worker's compensation at the time.

03:47 - 54.427 And the confusion is that this case,

03:47 - 57.597 this court in the cases of Oliver Bush,

03:47 - 00.733 Topolsky and Non-0

03:48 - 04.370 Sturm LLP, has made various decisions,

03:48 - 09.008 over the last 20 years relating to heart and lung benefits

03:48 - 13.312 and workers compensation benefits that all involve motor vehicle cases.

03:48 - 14.714 So this, in a sense,

03:48 - 18.751 is a case of first impression, because this is the only case that is

03:48 - 20.553 involved.

03:48 - 25.792 Non motor vehicle injuries which we stipulate the facts stipulate to that.

03:48 - 30.063 And not only is there no issue about the facts of the case

03:48 - 34.434 and that motor vehicle that's it doesn't arise out of

03:48 - 38.037 or relating to a motor vehicle accident like in the alpine case

03:48 - 41.274 where they expanded motor vehicle, vehicle accident to include

03:48 - 44.310 dram shop where there was a motor vehicle accident.

03:48 - 49.182 She was injured and in receiving heart and lung benefits.

03:48 - 54.554 there was a distinction, there's a distinction in all of the cases

03:48 - 57.557 that the court needs to realize, and that is that.

03:48 - 01.394 And all the all the cases do realize this heart and lung benefits

03:49 - 05.865 are not worker's compensation benefits to completely different things.

03:49 - 07.500 But all of the cases

03:49 - 11.237 and all the reason that these cases have made it to the Supreme Court.

03:49 - 16.142 they will deal with the fact that the court's since heart

03:49 - 20.379 and lung benefits were enacted by statute in 1935.

03:49 - 26.252 The courts have basically said that because both cases involve

03:49 - 30.823 an injured employee, even though I'm going to discuss that in a second.