00:00 - Hello and welcome to the Commonwealth Court of Pennsy

00:03 - September Unlock Session.

00:05 - My name is Sam Eckert, and I'm Madison, Antigua.

00:08 - We are staff attorneys and the Commonwealth Court's Off

00:10 - of Legal Counsel.

00:12 - We are excited to return for thi first September argument

00:16 - after the summer hiatus.

00:17 - Madison Welcome back. Sam Thank you. Ditto.

00:20 - We hope everyone enjoyed their s

00:23 - It's so great to be back. What do you think?

00:25 - Should we start with a refresher

00:26 - I think that's a good idea, righ

00:28 - The Commonwealth Court is convening for an argument.

00:32 - The term en banc is French for o bench and refers to a special pr

00:36 - where a panel of seven Commonwea judges hears argument on cases

00:41 - that the court believes implicat or important legal issues.

00:45 - Madison What do we have on today

00:47 - Sam The court will hear four on banc cases ranging from

00:51 - involving the regulation of alte energy products to charter schoo

00:56 - There will be an interesting doc

00:58 - Absolutely.

00:59 - Madison and I will present a bri of each Bond case, followed

01:02 - by the broadcast of the oral arg thereon.

01:06 - With that, let's jump to the first introduc

01:10 - Our first case concerns whether the appellant in this ca

01:13 - Theodore Canton, LLC, received proper notice of the ta

01:17 - upset sale for his property in H after the property was sold

01:21 - to a buyer in an upset tax sale, sought to set aside the tax sale

01:26 - This request was denied by the t on the basis that the Dauphin Co

01:30 - Claim Bureau satisfied the notice requirement

01:32 - under a real estate tax sale law prior to selling th

01:36 - because it mailed the notices via certified mail to Appellant'

01:40 - New York State address for someone signed for the Certi

01:43 - and to sent a second notice to a owner at his New York State addr

01:48 - However, appellant claims that he did not receive notice.

01:52 - The trial court found that the l only requires the bureau to send

01:55 - to the property owner and does not require proof that

01:59 - actually signed the certified re or actually received notice.

02:04 - As such, the trial court conclud that the Bureau complied

02:07 - with the law by mailing notices to appellant's correct mailing a

02:12 - and appeal.

02:13 - Appellant argues that because neither he nor his

02:16 - signed for certified mail receip and an error

02:19 - or agent signature is required f so-called significant doubt exis

02:24 - as to the personal receipt of no by the owner,

02:27 - thus requiring additional notifi efforts.

02:31 - Appellant contends that a certified mail receipt

02:34 - not signed by the owner or agent is invalid for notice p

02:38 - He further maintains that the Bureau has the burden

02:40 - of examining return receipt card

02:43 - Appellant argues

02:44 - that the Bureau admits that it f to examine the card signatures

02:47 - to ensure the notices were ackno by the intended recipient.

02:52 - Thus, appellant maintains that the bureau did not comply w

02:54 - notice provisions of the law.

02:57 - The buyer of the property and th County Tax Claim Bureau argue

03:00 - that there is no significant dou as to the actual receipt of the

03:05 - because green cards

03:06 - on the certified mail receipt co notice of the sale were signed.

03:10 - There were no facial defects in the signatures on the cards

03:13 - and there was no indication that service was not achieved.

03:17 - Thus, the buyer and the tax claim bureau argue

03:19 - that secondary efforts regarding notice were unnecessar

03:23 - With that, let's listen to the a

03:26 - Is Good morning, everybody.

03:35 - Welcome to the Commonwealth Cour

03:40 - For those of you who have been here before, you k

03:43 - that our en banc arguments are a each.

03:49 - 15 minutes per side.

03:51 - That's per side, not per party.

03:55 - So if there are more than one pa

03:57 - please figure out how you want t your time.

04:01 - Respondent's Petitioners and App

04:06 - You get rebuttal if you'd like.

04:10 - Please let us know at the beginn if you'd like to reserve any tim

04:16 - otherwise just know that we've r your briefs.

04:20 - We're familiar with the case.

04:22 - We know even a half hour isn't a lot of time

04:25 - to be able to

04:28 - argue and answer questions and discuss

04:32 - that's so important to your clie and that you've spent so much ti

04:37 - But we are ready, so just jump r

04:42 - and we'll look forward to hearing the arguments today.

04:46 - And we begin with number 77,

04:50 - Theodore Canton versus Dauphin C

04:52 - Tax Claim Bureau

04:56 - in police court.

04:57 - Good morning.

04:58 - My name is Bill Vince SCO, and I represent Theodore Canton,

05:02 - I would like to reserve 3 minutes of rebuttal time.

05:05 - Thank you.

05:06 - This is a unique situation with regard to basically

05:10 - what I determined to be a dichot between an individual signing

05:14 - a certified receipt card versus an LLC or a company.

05:20 - And in this particular situation the trial court and the Tax clai

05:24 - have presented a scenario that markings on a certified mai

05:28 - that are sent to a company as opposed to an individual

05:31 - is sufficient to overcome significant doubt.

05:35 - Under Section 6607 of the Pennsy real estate tax sale law,

05:41 - we believe that that

05:42 - creates an inherent due process violation and allows the

05:46 - claim bureau to essentially do l than is required for an individu

05:52 - The cases that have been address by the Commonwealth Court have s

05:56 - that ill ill legibility creates an obligation of the tax claim b

06:02 - to look more closely

06:05 - than eligibility for the owner of a company.

06:09 - In this particular case, in the trial court's opinion.

06:12 - The judge ruled that just becaus there was a signature on the car

06:16 - and I put signature in quotes

06:19 - with nothing else that the real estate tax sale la

06:22 - that the tax claim bureau send all required notices to the

06:27 - but it does not require proof that the property owner actually

06:31 - the certified mail receipt or actually received the notice.

06:35 - Counsel, I'm going to interrupt for a second, isn't it isn't it

06:38 - that the trial court, though, didn't accept as credibl

06:41 - the allegations that they that wasn't the appropriate sign

06:44 - Yes, but they don't really go in

06:47 - I'm sorry.

06:47 - The trial court does not really into what whether or not it was

06:52 - The issue with the

06:55 - first certified mail for the notice of return an

06:59 - the testimony was clear that

07:02 - there was no identification as t

07:05 - who signed it.

07:06 - There was no address on it.

07:08 - It was not stated whether the pe was an agent or an addressee.

07:12 - And in the second one there was

07:16 - no date, and no reference to agent or add

07:20 - But are you asking us to reevalu that evidence

07:22 - when the trial court's already f not credible?

07:26 - I don't know.

07:27 - I'm looking to have the same sta because I think

07:30 - that the line of cases says that if there is a

07:34 - an illegible signature or if you can't make it out,

07:37 - or if you can't confirm, there's an additional duty

07:40 - to investigate whether or not no was actually received.

07:44 - What the trial court did in this they said, look, it was sent

07:47 - to the same address three times, notably the last time after the

07:52 - Notice the actual

07:54 - record

07:55 - came back or the letter came bac saying that there was no such ad

07:58 - And the court said in their deci

08:01 - that it just doesn't seem credib that somebody else would sign fo

08:04 - But the problem is that takes aw the duty of the tax claim bureau

08:08 - because the tax claim bureau has if they don't understand who it

08:13 - And the testimony from mid-March said it just said

08:15 - New York, New York, no idea where it came from.

08:19 - If the if they have an obligatio under the line of cases

08:22 - for the Commonwealth Court,

08:24 - then they should look at that the same way they would for an i

08:27 - And we don't know. Mr.

08:30 - Boyce said it was not his signat and not that of his wife.

08:34 - So I do believe that the totalit

08:37 - of the circumstances and I have a question,

08:40 - do you think the timing of the t notices significant?

08:43 - In other words, we're looking at whether there was significant do

08:47 - whether the bureau had significa

08:49 - And the third notice

08:51 - that said no such street when I saw that, it was glaring

08:54 - But then when I thought about th that it was after the sale,

08:58 - how can we say that that should be a factor that wou

09:01 - contributed towards significant

09:04 - It it would not contribute to a significant doubt

09:07 - when they're in real time, which I think is what your point

09:10 - So they send a certified mail letter out on

09:13 - I think it was July 22nd of 2022

09:16 - They have to look at that certif part and say, is this acceptable

09:20 - So you're right that last one wouldn't do it.

09:22 - But the whole purpose of this is that they had two of them

09:26 - because they had the notice of r and claim the year before.

09:29 - And both of them did not have an information there.

09:32 - And The Court I'm sorry, the sta the legislature

09:36 - has created a basic dichotomy.

09:40 - They say if the card comes back with no required signature,

09:44 - that's one issue. What they say are under circumst

09:46 - raising certain significant down as another.

09:49 - And if you look at just putting that last third

09:53 - mailing, a signature that's not

09:55 - Boyce is the owner.

09:57 - No written name under the signat no address on the delivery,

10:00 - just a reference to New York, Ne and the notice notices say deliv

10:05 - and left with an individual and primarily for the July 22nd

10:10 - That's has to be restricted deli

10:12 - So you needed to have a requirem to who signed that.

10:16 - So those are the significant dou that I think are raised.

10:20 - And when you look at the restric delivery concept,

10:24 - that inherently creates an issue

10:27 - how do you confirm restricted de for an LLC, for example,

10:31 - when you don't know who the actual LLC owner is?

10:35 - And I would say that the legislature has kind of

10:38 - identified

10:39 - additional issues for people purchasing property and selling

10:42 - now because they were requiring individuals to identify who they

10:47 - But for this particular purpose, it just creates that significant

10:51 - And that's the purpose by which we appealed here today.

10:55 - Mr. Vince Gill

10:58 - And I know I look like Wizard of here.

11:03 - Kelso, I just wanted to ask you, are you asking the Court

11:06 - to establish a bright line rule

11:10 - in this case it was a mutual sig

11:13 - and it was put into the printed

11:17 - there was nothing in the signatu

11:20 - There was no indication that it was signed by agent or w

11:26 - So to establish

11:28 - a bright line rule that in those it's not sufficient for the

11:34 - tax bureau to go ahead and post the notice

11:38 - but that at that juncture they need to take reasonable eff

11:42 - Or do you think that this is a,

11:45 - a factual scenario that the cour would just address in this situa

11:51 - Or do you want a bright line rul

11:53 - I think a bright line rule is ne

11:55 - And I say that because it's what the tax claim

11:59 - bureau's obligation is when they that illegible signature.

12:03 - And I say that because of what you just said, they have a secon

12:08 - for example, with a notice of return in claim

12:11 - they can post the property

12:14 - and that whole issue goes away, which didn't occur in this case.

12:18 - So if there is there already is law that the Commonwealth Court

12:22 - has identified, saying that if it's illegible,

12:24 - there's a duty on the tax claim to further investigate.

12:28 - So if that becomes an issue with the same requirement

12:32 - should be just post the property on the certified mail.

12:35 - There are other ways to remedy that as well, and that would cre

12:41 - that would protect the owners of the property becau

12:45 - Commonwealth Court has stated in the Legislature has stated,

12:47 - the purpose is not to take the p but to get the taxes paid

12:50 - and notices of due process issue

12:52 - So I would respectfully request a more detailed bright line

12:56 - rule on this issue because I bel happening more and more.

13:00 - So is that your position?

13:01 - I mean, because isn't it that an if even if it was this individua

13:07 - could defeat service of this let by just scrawling a name and mak

13:12 - whatever you sign illegible and claim bureau has no control over

13:18 - It's the postal workers who, you

13:23 - get the the form and and are satisfied with it.

13:27 - So are you saying then

13:29 - what further efforts could they have made because it'

13:34 - this is the

13:35 - address of where they live, at least part of the year,

13:41 - a good part of the year.

13:43 - But this summer, I think where t time at a different address.

13:47 - So if they had done additional w

13:50 - investigation, they wouldn't hav a different address.

13:53 - It's not like they sent it to th it was addressed to the wrong ad

13:59 - Are you saying then, that postin in every situation would cure

14:04 - if they get a you know, if if they get a receipt like th

14:08 - they should just post the proper and that would be sufficient.

14:11 - I'll answer that in three ways.

14:12 - The first is that in this particular situation,

14:14 - with the notice of return in cla it would have cured it because t

14:18 - if it comes back illegible or no you can actually post.

14:22 - So that would take care of the n return a claim.

14:24 - The second thing is that in this particular context,

14:28 - the additional notification efforts were not,

14:32 - I don't believe, sufficiently ad here, but if you took a Google s

14:35 - it would have come up as his additional address

14:38 - because it's right there.

14:39 - They could have served it to another party.

14:42 - The other thing is, and this just came up recently,

14:45 - I have a case and that is now before the Commonwealth Court

14:49 - from Columbia County, where the the judge, the trial c

14:53 - said that there's an obligation, a presumption that the

14:58 - United

14:58 - States Postal Service properly did their work.

15:01 - And I I'm arguing in that case that it's almost the same thing

15:06 - is that you're shifting the burd from the tax claim bureau's obli

15:09 - to make sure that they got notic and saying, hey, listen,

15:12 - this is restricted delivery.

15:13 - You have to assume that they did restricted delivery correctly.

15:15 - And I do believe that in these s an additional notification and e

15:21 - properly put in the file separate apart from the return c

15:24 - because that would have cured it in its of itself.

15:27 - But for the certified mail notice of the year of the sale,

15:30 - the regular mail notice out afte because that's what is triggered

15:34 - You put the notice of the additional notification

15:37 - efforts in the file that would a cure the issue.

15:41 - In this case, all those steps we and for that reason, the tax

15:46 - claim itself, because of the not return and claim is invalid.

15:49 - So I do believe that

15:50 - those additional steps are the p that the Legislature put in.

15:55 - Mr. Vance to have a factual ques are look,

15:57 - looking at the two green cards that contain the alleged illegib

16:02 - signatures, the 2021 and the 202

16:06 - May 2021, August of 2022.

16:10 - Were there any factual findings

16:12 - relative to comparing those to w and was it found?

16:16 - Is there in the same the person the same person wrote

16:20 - I don't I don't recall that being the specific issue.

16:23 - I do know that Mr.

16:24 - Boyce testified that it wasn't

16:25 - she said it wasn't hers was not and is not his wife's either.

16:28 - Okay.

16:29 - Judge asked a series of question

16:31 - He said, Did you sign it? No.

16:34 - Did your wife sign it? No.

16:35 - Does anybody else live with you?

16:37 - And then they asked the nature of the residence.

16:39 - It was a row home in New York Ci

16:41 - And he said, Does anybody else

16:44 - get your mail?

16:45 - And it was that type of line of but not specifically a

16:51 - detailed analysis of the actual look at those signatures, they d

16:55 - look to be the hand of the same over the two different signature

16:58 - Would it be different if they we identical, illegible signatures?

17:03 - Would that change our analysis of on your theory?

17:05 - I think so.

17:06 - And I would cite to the Williams the County of Monroe case that i

17:11 - the 303, a third, 1098 and 2023 that had to do more with COVID 1

17:16 - The court actually addressed,

17:18 - if it's C-19 or COVID 19 or something like that, that tri

17:22 - I would say this is along the sa

17:25 - And, you know, if we're going to handwriting experts every time

17:27 - we get a certified mail, it's going to be a logistical nightma

17:31 - And again, it shifts the burden from the tax claim bu

17:34 - I mean, these people have enough work to

17:36 - And there I know they do a good because it's hard to do.

17:40 - But that step of if if you can't read it, just post

17:44 - And I think that that's an easy issue.

17:47 - Didn't happen in this case.

17:48 - I'm not arguing against my clien

17:50 - but I think that the the there are protections in there.

17:53 - And if the court allows a bright test, as Judge McCullough had sa

17:58 - or kind of a guideline as to whe I think it will resolve the issu

18:02 - Thank you. My time. I apologize. Thank you very much

18:13 - Good morning.

18:14 - Meet, please the court.

18:14 - My name is on a niche and I'm he on behalf of the defendant by me

18:18 - Zero, who is the purchaser of th at issue at the tax claims.

18:21 - Now I'd like to reserve 4 minute for my colleague. You.

18:29 - I'd like to start by responding

18:31 - to some of the argument from opposing counsel here.

18:35 - First, the rule that he is propo

18:40 - would require additional notific efforts by the tax claim bureau

18:45 - in every instance in which there an LLC, because under his unders

18:51 - when the tax claim bureau gets the green card back, regard

18:55 - of how legible or illegible the is, they would have no way of kn

18:59 - whether that person was an autho signatory for the LLC or not.

19:04 - So where the address was an LLC, they would in every instance

19:07 - have to take additional notification efforts,

19:10 - which is not what is required by the statute in this case.

19:13 - I think that is even more compou by the fact that the Act is out

19:18 - so that each of the 50 states might have different ways

19:22 - of determining who is. Yes,

19:27 - sign on behalf of an LLC.

19:30 - And here there was the agent box wasn't c

19:33 - The signature was illegible and it was not even placed

19:37 - in the signature portion, but there's no provided signatur

19:41 - So I didn't understand the propo

19:44 - See that,

19:46 - you know, if there's just a sign

19:51 - you have nothing checked on this

19:53 - that indicates an LLC that's an

19:56 - the signature is not even in the place.

20:00 - So, you know, constitutional rig

20:04 - it's a major issue.

20:06 - And to deprive one of their prop because a green card comes in

20:13 - with an illegible signature in a printed box.

20:18 - If it were

20:20 - your client's property, I think you would be

20:22 - making the same argument.

20:25 - Yes. And the constitutional right to the property

20:27 - is paramount, which is why the l has given very specific directio

20:33 - as to the safeguards that must b

20:37 - in before the property can be ta

20:40 - Right.

20:41 - So if it's for an LLC, there's no agent box

20:44 - checked, there is no legible sig in the signature box.

20:48 - There's no printed signature.

20:50 - Why doesn't that

20:53 - constitute

20:54 - circumstances raising a signific

20:57 - to the actual receipt of such a by the named address?

21:01 - See, why shouldn't that trigger at least the next step,

21:05 - which is to exercise merely reasonable efforts

21:09 - by the taxing agency?

21:12 - In our position is that the the mere fact of an

21:17 - signature does not raise signifi because it is such a whether the

21:24 - whether the green card was addressed to an individual o

21:29 - And the

21:32 - it is entirely commonplace for the signature

21:36 - not to be entirely legible, and that when a tax claim bureau

21:41 - or another agency or a court or whoever it is, is seeing hund

21:45 - and hundreds of these signatures every day, they cannot it cannot

21:50 - that it raises significant doubt in ever

21:52 - one of those cases simply because the signature is illegib

21:56 - The tax name bureau has received a green card that is facially va

22:01 - It has the signature on it and that meets the

22:07 - requirements of the

22:09 - statute that's been put in place to safeguard property rights

22:13 - for individual citizens, whether they're an individual or

22:19 - and a it's persuasive precedent.

22:22 - But I would point the court toward the definition case, whic

22:26 - that a mere legible signature do necessarily raise a significant

22:31 - not on its own raise significant as to the validity of the green

22:36 - Notice.

22:44 - I also wanted to

22:47 - address that the

22:54 - the tax claim bureau here

22:56 - did follow all of the necessary

23:01 - other necessary requirements of the statute.

23:04 - So the property was posted.

23:06 - I'm not sure if in discussion wi we were talking about a separate

23:12 - after the significant doubt would have been raised,

23:16 - but the property was posted, it was published,

23:20 - and then additionally the Tax claim bureau sent the

23:25 - the notices by certified mail as was require

23:28 - and they received back signed cards as was required.

23:33 - So all of the necessary steps we

23:36 - And additionally, then

23:39 - in terms of them receiving back the signed green cards,

23:43 - the case that was cited by the trial court, the first ca

23:48 - that case states that where the signature appears

23:51 - to be the signature of the owner or individual authorized, the ta

23:55 - bureau has satisfied the certified mail obligations.

24:00 - And so that gets us back to did that signature

24:05 - was that signature appearing to the signature of the authorized

24:09 - And then when you tie that in with the defense case that says

24:13 - that a mere illegible signature is not enough to raise significa

24:17 - I believe that.

24:17 - I think it's important to excuse this is another effort

24:21 - that there was a printed name and the signature of one of us,

24:24 - that this is part of the part that did not happen here.

24:28 - That is a that is a difference between the two cases. But

24:34 - that is a difference between the two cas

24:37 - But it still says but that's why I am suggesting that it be read

24:42 - in conjunction with the defense which directly

24:46 - addresses the

24:47 - legibility issue.

24:54 - So, Mr.

24:54 - Mitchell, let me let me throw a hypothetic

24:56 - Instead of it being an illegible signature,

24:58 - I have trouble with that word, t Sometimes.

25:01 - If instead it was merely

25:04 - just an X illegible x

25:08 - not knowing who signed it, would

25:11 - give rise to significant doubt in your min

25:14 - I think that it could, and I think that is more similar

25:17 - That is more similar in that hyp to some of the cases

25:21 - decided by the appellant in this

25:25 - So some of the cases you cited there was a legible signature,

25:28 - but it was someone different than the addressee.

25:32 - There was no signature.

25:33 - There was COVID 19 written in, w clearly that the name of an indi

25:38 - and I think that those cases are more in line

25:40 - with the x mark that you are sug as opposed to something that

25:46 - I view as a signature.

25:47 - I know Your Honor said that you did not see it as as such ne

25:53 - but I think that it's in my mind that does look like a signature,

25:56 - somebody that scribbles their si all the time.

25:58 - And I think that is distinguisha from an X mark or other.

26:02 - But in both instances, don't you need to know

26:05 - whose signature it is?

26:08 - Because it's like the cases Mr.

26:11 - Has cited.

26:12 - You know, if it's someone who's to the property, just the next d

26:15 - neighbor signs it. That's not good notice, right?

26:18 - You agree? That's not good. Noti

26:20 - I agree that if you know that it the next door neighbor who signe

26:24 - So again, if they legibly print and sign t

26:26 - and you know that, then that's not good notice. Tha

26:31 - this is a foreign LLC, It's a New York L

26:36 - And I don't know and this might be a question, Mr

26:38 - Gondor,

26:40 - do we require Foreign LLC

26:43 - to have registered agents in Pen like we require foreign corporat

26:50 - I do not know whether they need in order to own property here.

26:53 - Okay. All right.

26:55 - So if that is a requirement,

26:58 - is that a bright line rule that we should throw in there that, y

27:01 - techs clean, Bruce, serve the registered agent as well.

27:09 - That is not is an area that I ha

27:14 - thought out ahead of time.

27:15 - But I think if there was a clear and there was significant

27:19 - if there was significant doubt raised by the signature on the g

27:23 - then I think one of the

27:25 - additional modification steps that would be taken at that poin

27:28 - would be to look at those types and then sort of the person

27:33 - that was notified.

27:36 - Okay,

27:38 - So with that, my client would as

27:41 - because the tax claim bureau did follow the necessary procedu

27:45 - outlined by the statute that the tax claims they'll be u

27:50 - and that the appellants, the PLB dismissed.

27:54 - Thank you.

28:05 - Good morning.

28:06 - Good morning. Your honors.

28:07 - Ryan Gander, solicitor for the Dauphin County Tax Claim

28:12 - I wanted to start with the statu

28:14 - language of of six or seven, which is where obviously all thi

28:18 - is coming from this significant to actual receipt,

28:23 - then a reasonable search is requ

28:25 - It's more than just a doubt and it's to actual receipt.

28:29 - It's not that just a signature is given back to us on a green c

28:33 - It's the fact that the post serv

28:36 - the post office, actually returned a green card.

28:38 - And in 2024 sometimes returned.

28:42 - Getting a green card returned is actually in a fee of

28:47 - And when you add in the fact that it has to be a significant

28:52 - my client is is reviewing to to what my co-counsel said.

28:57 - A lot of green cards on a regula

29:00 - So to get a green card back with a signature, admittedly,

29:04 - I don't think anyone, distinctly disputes the fact that it's ille

29:09 - I don't think we have the facts required for a significant deal.

29:13 - So let me just distract you some else, Mr..

29:17 - Mr.. Connor, because you raised an interestin

29:22 - Green card doesn't come back.

29:23 - What does the tax code bureau do

29:26 - You send it off.

29:27 - You have everything prepared.

29:28 - The post office, whatever reason, doesn't return the green

29:33 - What's your next step?

29:34 - Typically, we do a reasonable search. Look,

29:38 - and it does depend on what

29:39 - part of the process it is, because at times the law

29:44 - if there's not a green card to be received, a posting.

29:47 - So so is it the process now for that when the green card is retu

29:52 - what may or may not be those rare occasions,

29:56 - do they look at the green card a okay, there's a signature good e

30:00 - They put in a pile and they move or do they analyze the signature

30:05 - They're admittedly and it's actually testimony from

30:08 - Marts that they just look for a

30:11 - A signature, Correct. Okay.

30:13 - Following on to the question I have for Ms..

30:16 - Niche, if it's just an X, would that satisfy

30:20 - the tax claim bureau they just throw in the pile and

30:24 - Excellent question, Judge BoJack

30:25 - And that's what I try to do.

30:27 - And when you ask the first time, I've never considered it, but

30:31 - I would imagine that's I would s that's not arguably a signature

30:36 - and therefore they would probabl a result.

30:38 - Signatures are in the hand of th or the signatures or whatever.

30:42 - Okay. Sorry.

30:44 - It's fair.

30:45 - And I think you're getting to th that the tax claim bureaus

30:49 - would be wrestling with.

30:50 - If we are, we're going to set a that has to be legible because,

30:56 - and I pointed this out at the tr

31:00 - the judge there has an illegible when when he signs the order.

31:05 - And so

31:08 - be careful.

31:08 - Be careful.

31:11 - Right. Right.

31:12 - And doctors, obviously are notor for for that as well.

31:16 - And I think it would potentially incentivize folks to

31:22 - willy nilly sign things or

31:24 - or or what have you, because they would know that.

31:27 - Well, it has to be legible.

31:28 - And see, this is why, you know,

31:30 - we got to get back to teaching cursive writing in schools. Okay

31:34 - It's a it's a very so it's a cou

31:38 - You have a service card.

31:42 - The problem here is that you're like all you need is a signature

31:45 - The service card doesn't just have a signature box.

31:49 - It has a signature box which was not used in this case.

31:52 - It has a printed name box.

31:55 - So when you don't have a virtual signature, you have the printed

31:59 - and then you have met your burde you can show there was actual re

32:04 - which is the standard that's set forth in 6078.

32:08 - Actual receipt, if there's any r any circumstances,

32:14 - raising a significant doubt of actual re

32:18 - But the statutory language requi

32:21 - then exercise those reasonable e which were not done here.

32:25 - This is an extremely important constitutional right

32:28 - deprivation of property with allegedly no due process.

32:33 - But notice here

32:36 - the burden is on the taxpayer before they take the pr

32:39 - And and as it was stated earlier the purpose is not to take the p

32:43 - The purpose is to get the taxes.

32:45 - And there is even provision in in the statutory language

32:49 - to allow for entering into of an

32:52 - for payment of taxes, which many property owners do,

32:56 - who have neglected, for whatever reason to pay their

33:00 - That didn't even happen here.

33:02 - So the concern I have is

33:05 - that there was testimony that you often get these cards b

33:10 - with signatures that could be il

33:13 - I don't know where those signatu

33:15 - Are they in the printed name box

33:17 - Are you talking about LLC where you don't have an agent si

33:22 - So I think that the fact that you're ignoring what's

33:25 - right on the card that you use f is is a

33:30 - is a problem when you're dealing with a constitutional right.

33:34 - And at a minimum, I think the burden is on the tax

33:37 - to ensure that they know there was actual receipt.

33:41 - And in a case words and illegible signature in a pri

33:45 - How has that occurred?

33:47 - Just in a can't be just that

33:48 - this is what you've done all alo because that's what the testimon

33:54 - Great point.

33:54 - I see that. My time's up, May. Yes, please.

33:57 - So a few points, Judge.

34:01 - The law.

34:02 - The bureau agrees. We are.

34:04 - We would love not to have to sell properties at a tax sale

34:08 - do appreciate property rights of

34:11 - and particularly owner occupied

34:15 - properties, which gives additional requireme

34:19 - in the law, which here we don't have an owner occupied property.

34:23 - It's owned by an out-of-state LL

34:24 - So if it's owner occupied,

34:26 - not only do we have to do all th but we also have to give persona

34:30 - So there so we're not at the ext

34:33 - of an owner occupied property, which I think is important.

34:36 - And on top of that, Your Honor,

34:38 - the signature in the wrong box

34:42 - compared to a signature in the r I think

34:45 - we've seen, especially during CO

34:47 - where the green cards are actual

34:50 - it was it was post office policy to not be signed by the recipien

34:55 - of the mailing, and it was signe by the person that was doing

34:58 - that was delivering the mail and signed in any particular box.

35:03 - So there's there's a lot of historical context of,

35:06 - of those green cards not being f in the appropriate manner.

35:10 - And that's in my in my client co that as you're looking at signif

35:14 - doubt then-President George I know those times expire

35:16 - but you indulge me

35:17 - just for a couple of questions because I think this is importan

35:22 - Do you know, Mr.

35:23 - Gonder, if we treat Foreign LLC like we treat foreign corporatio

35:28 - that we have to have a registere in the Commonwealth that I was h

35:32 - you didn't ask me that question because I don't know.

35:36 - Okay. So that's that's fine.

35:37 - Let's let's just let's just go w

35:39 - I feel let's assume this was a foreign corporation,

35:43 - which we all know they have to have a registered a

35:45 - Is that the

35:48 - Bureau's practice?

35:49 - If you have a foreign corporatio to serve the registered agent,

35:54 - would you send this mailing

35:56 - to the foreign address as well as the agent?

36:01 - No. So I believe it's the Bureau's practice to serve.

36:05 - Basically in the system itself, they create

36:09 - entries for who should be receiv the mailings for the property

36:13 - and they simply just serve whoever is listed

36:16 - in whoever the owner tells you to write bas

36:20 - Okay, So if they put in a management c

36:23 - you'd send it to the management company, correct?

36:26 - And you only send it to one, eit the owner or the management.

36:28 - Would you send multiple? Multipl

36:30 - Okay.

36:31 - Well, and this one, I think comes from the deed itse

36:35 - When the deed was signed, the ad information was included on the

36:39 - Well, and you're honest for thos we asked that the trial court

36:43 - decision be upheld and and the s and the sale would be upheld as

36:46 - Thank you. Thank you very much.

36:50 - I won't take much more of the ti

36:52 - Judge Walter, just to answer your question, as the title agen

36:56 - I don't believe that an LLC is r to have a registered agent

37:01 - if it's formed in New York and they purchase property.

37:05 - We just have to get confirmation of the certificate of organizati

37:09 - and everything else.

37:10 - But no, there's never been any r to confirm it.

37:13 - They Yeah, I would imagine because an LLC is not a person l

37:16 - So. Exactly.

37:17 - So I'm not expressing myself as any type of authority on that

37:20 - but I think that's all you're as That's helpful.

37:23 - The second thing is that the finished case, and I think t

37:27 - McCulloch summarized everything the way I, I probably in articul

37:33 - but the definition case that was had a handwritten address on the

37:39 - Similarly, in the FS Partners ca

37:42 - Stallman,

37:44 - the lack of

37:44 - authority was not an issue because the card was

37:49 - signed by Mr. Stallman.

37:51 - So there was a different set of circumstances here.

37:54 - And then the final point I wante

37:55 - is we're not contesting the post of the actual sale of the year.

38:00 - We're contesting the fact that there was no posting notice

38:03 - before for the April 2021 notice of return to claim.

38:07 - So there are two posting notices that would have had to have occu

38:10 - And with that I would just ask.

38:12 - Yes, I have one quick question f

38:15 - You kind of answered it, but I want to add something to i

38:18 - Can a credibility determination defeat statutory requirements fo

38:23 - And under these circumstances,

38:26 - I think that's you know, it's hard to say in every case, no or

38:29 - But under these circumstances,

38:35 - I, I think

38:39 - that to say the to say

38:43 - no would take away power from th to make credibility determinatio

38:47 - So I don't want to say that.

38:49 - I think that, you know, judges have a very difficult job

38:53 - because you're only able to review the facts in front of

38:55 - whether you're the trial court or the Commonwealth Court.

38:57 - And in this particular case,

39:02 - there are six different factors that that occurred.

39:04 - So there is a credibility determ which is made,

39:10 - but in this particular case, with due respect to the trial co

39:14 - in Dauphin County, well, they're saying that it's just no

39:20 - that the person didn't receive i which is happening more and more

39:25 - There's been

39:27 - an inadvertent,

39:30 - I must use the word ignorance, but they're ignoring the lack of

39:36 - printed name underneath.

39:37 - They're ignoring the issue related as to the address.

39:40 - They're ignoring the issue as to whether they're an agent or addr

39:43 - And if it goes to the ultimate g

39:47 - constitutional rights, due proce and the right of an individual

39:51 - to keep their property, I think that that credibility

39:53 - determination has to encompass all factors.

39:56 - So I think I'm answering your qu

39:59 - And I would say that in this par case, the credibility determinat

40:03 - did not go far enough, if you wi

40:07 - And with that, I respectfully re

40:09 - Thank you very, very much.

40:10 - And thank you all for your

40:14 - arguments today, as well as the written ar

40:16 - Very well done.

40:21 - Our next case began with a plea.

40:23 - David Hamrick, who is the president of Sunrise

40:26 - LLC, was the successful plaintif in a lawsuit against the Public

40:31 - Commission for exceeding a statutory authority by promulg

40:34 - certain regulations that applied alternative energy products.

40:39 - In October of 2023,

40:40 - appellant Senator Lisa Bass

40:42 - issued a legislative co-sponsors memorandum to all Senate members

40:46 - indicating her intention to introduce legislation to clos

40:49 - what she referred to as the hammock loophole,

40:52 - but that phrase hyperlinked to the court's decision.

40:56 - The memorandum was also posted to the General Assembly's websit

40:59 - Hamrick filed a defamation actio in the Allegheny County Court of

41:03 - Pleas and sought a temporary res order to prevent Senator Bosco's

41:06 - continued use of the term Hendri

41:11 - Senator Bosco also filed

41:12 - preliminary objections in the na of the mirrors on three bases.

41:16 - One her conduct is privileged under the speech and debate

41:19 - clause to her conduct is protect by sovereign immunity.

41:23 - And three Hamrick failed to plea the elements of a defamation cla

41:28 - The trial court sustained a prel objection to the defamation clai

41:31 - and overruled the preliminary ob to the privilege and immunity cl

41:35 - noting that it was not free from as to whether those protections

41:39 - Senator Bosco's appeal to this court, followed

41:43 - by an appeal.

41:44 - Senator Bosco

41:45 - argues that the trial court's or denying her immunity from suit

41:48 - is an immediately appealable collateral order separable from

41:52 - cause of action and involving he to important to be denied review

41:56 - Senator Bosco argues that the right to assert immunit

42:00 - and speech and debate privilege would be irreparably lost

42:03 - if review is postponed until final judgment.

42:07 - Senator Basketball further argue that she is entitled to absolute

42:11 - under the speech and debate clau her circulation of the co-sponso

42:15 - memorandum to her fellow senator

42:17 - within the legitimate legislativ

42:21 - Finally, Senator Bosco argues that she is entitled to sovereig

42:24 - immunity as a Commonwealth emplo within the scope of her duties.

42:29 - And the General Assembly has not sovereign immunity for defamatio

42:34 - Senator Bosco also argues that she is en

42:37 - to high public official immunity for defamatory statements.

42:42 - Initially, he argues that this appeal has f

42:45 - Notwithstanding his filing of an complaint

42:48 - and subsequent preliminary preliminary objections thereto,

42:52 - by Senator of all up before the initiation of this ap

42:56 - as such, he argues that this has

42:58 - an inefficient procedural postur for this case

43:02 - because while the appeal seeks to invalidate the trial court's

43:05 - regarding the preliminary object to the original complaint, the r

43:09 - sought and Senator Bosco's princ seeks dismissal of the amended c

43:15 - as the preliminary objections on the amended

43:18 - complaint have not yet been cons by the trial court.

43:21 - Hammock Appeal argues that this is premature and potentially moo

43:27 - if this appeal is not moot.

43:29 - Hammock argues that the trial court's order

43:31 - is not an appealable collateral

43:33 - because it is not separable from the merits of the underlyin

43:37 - Hallmark maintains that the defe which Senator

43:40 - relies depend upon factual issue which have not yet been resolved

43:44 - through discovery, and that those defenses require

43:47 - driven analysis of the alleged defamatory commun

43:51 - If this court finds it has juris Hammock urges the court

43:54 - to affirm the trial court, which that it was not free and clear f

43:59 - that the asserted defense's third homework's claims.

44:05 - The House, Democratic and Republican caucuses

44:07 - and the Senate Republican Caucus

44:09 - have filed amicus brief in support of Senator Scola,

44:13 - arguing that legislators are ent to legislative immunity

44:17 - under the speech and debate clau

44:18 - in connection with the issuance of co-sponsorship memoranda

44:22 - which they state are clearly within the legislati

44:26 - The caucus also argued that the trial court's order is an ap

44:29 - collateral order because whether sponsorship memorandum is a legi

44:34 - activity is an issue separable from the merits of the defamatio

44:39 - With that, let's listen to the a

44:45 - Okay.

44:46 - Thank you again.

44:46 - I may please the court.

44:47 - My name is Clifford Levin.

44:49 - I have the privilege of representing Senator Lisa sco

44:52 - the defense of the Pennsylvania

44:55 - I also have the privilege of rep the Senate Republican Caucus,

45:00 - the Senate House or I'm sorry, the Senate Democratic Caucus, th

45:05 - Republican and Democratic caucus which have all joined in this to

45:09 - because of the importance of the and debate clause

45:12 - to the operation of that particu

45:14 - I think that's a first in my car on the bench that all four caucu

45:18 - have been unified. So congratula

45:20 - Thank you. Thank you, Your Honor

45:23 - So I think it's important and I think it certainly highlig

45:25 - the importance of this constitutional question.

45:29 - We're going to discuss that.

45:30 - Before you get started on your

45:32 - your discussion of the merits of the appeal.

45:34 - I have a procedural question that I would like you to address

45:38 - The preliminary objections that are on appeal here

45:40 - to an original complaint that has since been amended,

45:43 - Does the filing of that amended extinguish

45:45 - essentially the original complai and moot out the issue?

45:48 - I actually think the appeal

45:51 - would take the jurisdiction away from the trial court to proceed.

45:55 - So so the amended complaint that has not formally been filed

45:59 - is that your position?

46:00 - Well, it was filed, but it's it's not

46:03 - It's not active.

46:04 - And it's that and the reason, Your Honor, would be that,

46:08 - let's assume were correct with the arg

46:11 - about speech and debate that would end the litigation.

46:15 - So it wouldn't make sense to all for the amendment of the complai

46:17 - which was only on the defamation

46:21 - The court had ruled conclusively on the speech and debate in sove

46:24 - immunity was a complaint that's been filed.

46:26 - Then your position is it doesn't replace the complaint

46:29 - that we know because this court has jurisdiction of the of the c

46:32 - Once we find the appeal, once the appeal was filed,

46:35 - and if it was a collateral order

46:38 - and a appealable as then,

46:41 - any further action in the trial would have been essentially stay

46:46 - Until the resolution of the appe

46:48 - And so we didn't formally or mov you know. Right.

46:51 - It was taking the action and the trial judge was not eith

46:54 - So just because we have to deal collateral order issue, just a c

46:59 - facts that are really in dispute

47:03 - This is a welcome case from so many confusing facts.

47:06 - These are pretty straightforward

47:08 - Mr. Hamm, Rich

47:10 - is the president of Sunrise Ener

47:13 - It's provides

47:13 - solar energy to local utilities and participates in net metering

47:18 - established under the Commonweal Alternate Energy Portfolio Stand

47:22 - So basically we have the electric energy grid

47:28 - and with alternative energy, we're basically saying that

47:31 - those who use solar power are ab

47:35 - put put their excess energy into and the utility

47:38 - has an obligation to accept that there was an issue.

47:41 - The Public Utility Commission proposed regulations that limite

47:47 - those who could basically sell into th

47:50 - or get credits into the grid,

47:52 - basically to residential units and not to commercial units.

47:55 - And Mr.

47:55 - Hamrick, on behalf of this compa challenged those regulations,

48:00 - and he brought a case that was c Rich versus Public Utility Commi

48:04 - And this court judge Logic wrote the opinion in that

48:06 - And in 2017, and the opinion basically conclu

48:10 - that the PUC, while having inher to regulate utilities

48:14 - under this particular alternativ portfolio standards,

48:19 - did not have the discretion to l between the residential unit

48:23 - and the commercial operator.

48:25 - And so the commercial operator could get full credit for

48:29 - for the solar energy

48:31 - that was being placed into the g

48:35 - So that was the decision was pub

48:36 - and it's called is published at a third

48:40 - 1027 It's called Hamrick versus

48:43 - All right.

48:44 - So Senator Bob Scola is a state from Pennsylvania.

48:47 - She represents portions of Lehigh and North Ham

48:50 - She serves as the minority chair of the Consumer

48:53 - Protection and Professional Lice Committee, which has oversight

48:57 - for consumer protection and for regulated public utility

49:00 - So this is clearly within her do as a state senator,

49:04 - there was a committee hearing on this question

49:07 - following the court decision about the net metering.

49:11 - And is this a good thing or a ba

49:13 - You know, a typical sort of legislative analysis that mig

49:16 - a decision of that nature after the hearing in October of

49:24 - Senator, Pascagoula

49:26 - introduced a bill that would limit the net meterin

49:30 - to the residential customer and for the wholesale commercial.

49:34 - When she sent out the memo and e why she wanted to have

49:37 - this bill passed, was that in ac with normal procedure, yes,

49:40 - you would get other legislators

49:44 - you know, join you in your your bill completely.

49:47 - It's called a co-sponsorship mem

49:50 - There's actually rules in the Se which are part of this record.

49:54 - There are rules in the Senate which describe in detail how you

49:57 - What you include in the purpose co-sponsorship memo is to identi

50:02 - what it is that you're hoping to and to seek co-sponsors.

50:05 - And she was able to obtain a number of co-sponsors based on

50:09 - And this memorandum, which really goes to the core of

50:13 - It is part of the rules of the S

50:15 - The memorandum actually then say

50:20 - references the, quote, hammer lo

50:23 - And there's a link to hammers to the point.

50:25 - If you click on the link, you get the hammer versus PUC de

50:30 - So she's referencing that, that particular decision

50:33 - that we're going to limit the ne metering here.

50:36 - So, Mr.

50:36 - Devine, when she wrote how much loophole was there

50:41 - an indication outside the link was an indication that

50:47 - was referring to the plaintiff in this matter,

50:51 - telling this matter, or was it referring to the case?

50:55 - Meaning was it in italics? Was it underlined?

50:57 - Was there any indications like a hyperlink?

50:59 - Yeah, which is Hamrick loophole.

51:01 - I think it quote and then if you click on Hamrick

51:04 - it went right to the case to the next one opinion by the w

51:09 - the exactly would it make a difference whether

51:13 - it was being

51:14 - referred to the individual or referred to the case where th

51:18 - and debate clause apply regardle so long as all the other factors

51:21 - have some satisfied absolutely in the case supports

51:25 - So first, just on the collateral order iss

51:27 - just to get that out of the out of the way.

51:30 - Well, I'm sorry.

51:31 - So after Mr.

51:33 - Hammer sent a cease and desist l to Senator Boswell, if to take t

51:36 - you said no this is part of what we're trying to do in the commit

51:40 - He then brought a defamation act in the Court of Common Pleas.

51:43 - Senator Abascal the filed prelim objections, raising speech and d

51:47 - sovereign immunity, and also rai the question that you have.

51:50 - You even pled defamation

51:51 - because what this loophole reall is that a defamatory comment.

51:55 - We had an argument in front of J McVeigh, Judge McVeigh actually

52:00 - said, well, there's a question about whether you've even pled d

52:03 - So judge can and that's why he s go ahead and file an amended com

52:07 - But he rejected the preliminary and the sovereign immunity

52:11 - and the speech and debate. That's when we took the collater

52:13 - But in the filing, the amended c isn't that an action

52:16 - by the individual filing, not an action by the court.

52:20 - So isn't that essentially withdr of their original complaint?

52:24 - You know, I mean, they called it an amended complaint and it did

52:28 - It simply referred it directly referred to what

52:30 - the judge was ordering in respec

52:35 - the preliminary objections that you amended complaint in part.

52:39 - Sure.

52:40 - It's you're amending the complai but he ruled definitively on spe

52:45 - and debate in sovereign immunity and that under collateral

52:48 - order rules, Rule 3313, we have to take an appeal and challenge

52:53 - because at the essence, one of it is we'll talk about on

52:57 - the sort of key ingredients of s immunity and speech and debate

53:01 - is not only that, you don't get with a judgment at the end of a

53:04 - You don't get sued.

53:06 - Have you responded to the amended complaint you did

53:09 - We did not.

53:10 - We did not.

53:11 - And so so so here we are, collat

53:14 - And so the question is, first of all, is is a collateral

53:17 - We have excellent guidance from a unanimous decision

53:19 - of the Pennsylvania Supreme Cour in a case called Brooks Viewing

53:23 - which is from 2021, just Justice Mondi wrote the dec

53:27 - That case involved a lawsuit against the Family Court of Phil

53:32 - And the question was, does a family court have sovereign im

53:36 - So that was the issue was, is this a collateral order?

53:39 - And the Supreme Court

53:40 - concluded, yes, it is a collater or just three factors to conside

53:45 - Is the question at issue separab from the underlying tort action?

53:49 - So if I present the question, is family court

53:52 - an agent of the Commonwealth, it really matter what the tort was

53:56 - The facts were what happened.

53:57 - It's a discrete and separate iss

53:59 - So she said, yes, it's separate.

54:02 - Does the claim involve an import

54:04 - Yes. Sovereign immunity is predi

54:07 - It's based in the Constitution, Article one, section 11.

54:09 - So it is a very important. Right

54:11 - And does the appeal present an issue that will be irreparabl

54:16 - if appellate review is postponed

54:18 - And yes, and this gets to the po that it's not just that you're p

54:21 - from the judgment, you're protected from the lawsui

54:24 - So obviously, if you go through lawsuit, you haven't been protec

54:27 - So the Supreme Court unanimously Justice Dockerty did not partici

54:31 - because he was involved with the Family Court.

54:32 - But the other justices unanimous that under the collateral

54:37 - where you can bring it in, sover immunity cases dismiss same fact

54:41 - Here.

54:41 - We don't need to really get into the hypothetical of the question

54:45 - As Judge Covey pointed out, the question really is

54:47 - where was this alleged defamator remark made?

54:49 - It's made in this official co-sp memorandum.

54:52 - The court can determine, is that part of the legislative

54:55 - Does that fit within sovereign i

54:57 - Does it fit with the speech and

54:59 - And for the other reasons of

55:01 - just as Justice Mundy pointed ou sovereign immunity is an importa

55:04 - So is speech and debate,

55:05 - which is predicated in the Const Article two, section 15.

55:10 - And finally, what happens if we don't jump in now and look

55:14 - Well,

55:16 - Senator Biscoe,

55:16 - it could be brought through

55:17 - an entire lawsuit

55:18 - and at the end of the day conclu

55:20 - you weren't you didn't have to go through that lawsuit.

55:21 - So it matches exactly with the Brooks case.

55:24 - And so this is appropriate for consideration by this court.

55:30 - Some of the cases that

55:32 - my colleague have cited really d with very complicated factual qu

55:36 - about whether you were within your scope of authority,

55:39 - whether you're within your legislative function

55:40 - So, for instance, there's a case another judge, Roger case here.

55:43 - So you're on one fire. You're on fire here.

55:47 - This is that melts your case.

55:49 - Now, she ought to be alive, I th

55:51 - But that case involved a judge suing a assistant D.A.

55:56 - for defamation.

55:57 - And it was a factual mess.

55:59 - And were these allegations made drinking with friends where the

56:04 - was within official duties?

56:05 - And there the court said this is really confusing.

56:07 - I can't separate the issue to figure out that.

56:10 - First one is it's not a severabl

56:12 - It all ties together those cases

56:14 - We don't have those cases.

56:16 - We are clearly in a very clear is is the co-sponsorship

56:19 - memorandum within this core func

56:23 - So that gets us then to the the substantive ques

56:25 - speech and debate and sovereign speech and debate, of course, is

56:29 - And that's the only evidence tha they point to as far as any wron

56:34 - That is the memorandum. Exactly. Your Honor.

56:37 - And article two, Section 15.

56:39 - Then, of course, is speech and d

56:40 - The protect speech and debate in either House.

56:43 - The members shall not be questio in any place.

56:46 - And this call is actually back from the Articles of Confederati

56:50 - It's in the federal Constitution it's in the state constitution,

56:54 - and the cases go back and forth.

56:55 - Our state courts will often look to federal guida

56:58 - So it's a very similar situation

57:00 - The Pennsylvania Supreme Court

57:01 - in in the seventies in a case called Consumers Education, whic

57:05 - said like the federal counterpar this must be broadly interpreted

57:09 - It's not just literally speech a

57:12 - It really involves

57:14 - anything, anything that falls within the q

57:16 - the legitimate legislative spher

57:20 - So whatever.

57:21 - That's so that's what we're look is the co-sponsorship memo withi

57:24 - this big circle called the legitimate legislativ

57:28 - The state Supreme Court in the 1 in a case

57:33 - called Consumer Party in Pennsyl indicated that really anything

57:36 - leading up to the legislation is within the sp

57:40 - So obviously co-sponsorship memo which is seeking

57:43 - co-sponsorship and explaining the bill is within that sphere

57:46 - and this court in two decisions.

57:51 - President Judge had a decision i Penn which noted that anything i

57:55 - to the legislative process would be in that sphere.

57:57 - Judge Robson and Judge Robson

58:00 - heard a case involving the reapp the League of Women Voters case,

58:03 - which involved the congressional reapportionmen

58:05 - And there was an issue there about discovery.

58:08 - This is, of course, legislative, the congressional map is legisla

58:12 - So there was a discovery questio can the can the people challengi

58:16 - that map get into the details of what the Republican caucus

58:20 - was looking at terms of calculat how those districts would be des

58:23 - And Judge Roberts said, no, that's all all that discovery,

58:27 - all that fact finding this part of the legislative process,

58:30 - it is not available for discover that is protected.

58:33 - So the Supreme Court and this court have drawn

58:35 - a very broad circle around co-sponsorship memorandum

58:39 - And I would prefer to get to Judge Cosby's question.

58:44 - It is part of the Senate functio

58:46 - and I would refer to that wonder brief pages seven and eight,

58:49 - which really detail exactly the what happens and how, in fact,

58:55 - Senator Abascal was able to get other co-sponsors as part of thi

58:58 - There have been federal case the two federal reach and federal ca

59:03 - one involving Representative Ber who introduced a bill called Mar

59:07 - This is an unpublished opinion

59:09 - cited on page 12 of the Amicus, eight of our reply brief.

59:13 - And there it was a similar memor

59:16 - And the courts ruled that that Representative Bernste

59:19 - had immunity, that you couldn't you couldn't sue for defamation.

59:22 - The guy who had actually committ a murder was suing for the defam

59:26 - I guess so, sir. Mr.

59:27 - Fine, is that your position that whatever is written

59:32 - in these co-sponsorship memorand qualifies for speech and debate

59:38 - Yes. It's it's per se, a immunized person immunized.

59:43 - And this was a sovereign immunit

59:46 - But I think it's a very parallel

59:48 - So so if if there is actual defamatory statements

59:53 - in that that that caused monetar

59:56 - to an individual, that's great.

59:58 - They're out a lot.

59:59 - 263 And that's correct.

01:00 - 04.600 Wilson versus Mero is a public Pennsylvania Commonwealth Court

01:00 - 06.368 917 a second.

01:00 - 10.939 357 sovereign immunity protectio even when the plaintiff alleges

01:00 - 14.944 intentional tort, which includes defamation, which is an intentio

01:00 - 19.481 and even if there is malice, says the Supreme Court in the DO

01:00 - 23.953 Franklin County case at 174, a t these are cited to absolute,

01:00 - 27.122 absolute privilege and those who called it a fraudu

01:00 - 32.060 and your client's name fraudulen loophole, he would still be prot

01:00 - 34.730 She would still be protected. Yes. Yes, it would.

01:00 - 35.565 That's protected.

01:00 - 37.499 So the case is really center on.

01:00 - 42.271 Are you within this legislative

01:00 - 42.839 obviously the

01:00 - 46.041 co-sponsorship memorandum, our v is within the sphere, sovereign

01:00 - 48.510 It's are you within your scope of employment.

01:00 - 53.082 So there are cases where if somebody lies, for inst

01:00 - 56.251 in that case, judge say, if somebody lies, you might say,

01:00 - 59.622 you're not within your that's not within your scope of employm

01:00 - 03.660 you're not allowed to lie and th you're outside the scope of empl

01:01 - 05.927 You don't enjoy the sovereign immunity protection.

01:01 - 09.865 But if you're within that protec and you were to say, just as fra

01:01 - 14.569 as the judiciary could put somet the opinion might get something

01:01 - 18.573 don't get sued over that because within your framework of protect

01:01 - 19.475 But even if it was

01:01 - 23.311 outside of the scope of employme for sovereign immunity purposes,

01:01 - 28.518 it could still be within the spe and debate protection could be

01:01 - 30.152 of of that clause.

01:01 - 31.286 Actually, that's true.

01:01 - 34.790 But in here she's actually actin as a senator, getting a sponsor.

01:01 - 36.825 There's nothing more court to th

01:01 - 40.696 The other thing I just point out and they just get further a litt

01:01 - 45.600 and suspenders here is that ther actually two statutes that recog

01:01 - 48.971 how the legislative memorandum are part of the legislative reco

01:01 - 52.641 So, for instance, if if you have a statutory

01:01 - 56.412 construction act issue and you have an ambiguous statut

01:01 - 58.947 you're allowed in the rules of statutory construction

01:01 - 01.951 to look into the the co-sponsorship memorandum.

01:02 - 04.286 So if we had a question about whatever bill might arise

01:02 - 05.554 or whatever law might arise,

01:02 - 08.123 one of the questions might be, w we could be arguing to this.

01:02 - 10.992 Court. Well, that followed homag Public Utility Commission.

01:02 - 12.861 They were trying to narrow the s

01:02 - 17.399 So that is an appropriate tool for statutory construction,

01:02 - 19.668 which would suggest it's within the legislative court.

01:02 - 24.907 In addition, the right to know l which we signed in our briefs, t

01:02 - 29.645 law recognizes these co-sponsors memorandum as part of the record

01:02 - 33.349 And so clearly this is protected speech and debate.

01:02 - 37.819 Similarly, under the sovereign i to address a judge.

01:02 - 39.020 Well, just question.

01:02 - 40.655 It doesn't really matter the nature of the statement.

01:02 - 43.025 She's acting within the scope of

01:02 - 44.926 her authority.

01:02 - 47.429 It whatever she says, we don't have to get into the

01:02 - 50.298 whether it's defamatory or not, it ends the inquiry.

01:02 - 53.835 And so the co-sponsorship memorandum is clearly,

01:02 - 57.606 clearly within the legislative s at all times.

01:02 - 01.544 Senator Bissell was acting withi her scope of authority as a stat

01:03 - 04.412 She has absolute immunity under speech and debate.

01:03 - 07.115 She enjoys absolute immunity under sovereign immunity

01:03 - 11.153 because she's a state actor and therefore this court should

01:03 - 15.257 the decision below and ruled that the defamation lawsuit

01:03 - 18.261 against Senator Pasquale should be dismissed.

01:03 - 26.361 Thank you very much.

01:03 - 32.341 Good morning, Your honors.

01:03 - 33.975 My name is Kyle Magee.

01:03 - 34.710 And Mr.

01:03 - 37.746 Magee, Before you go on, I still would like follow up

01:03 - 41.783 on my colleague, Judge Fasano Cannon, on this procedura

01:03 - 46.321 It's my understanding that the amended complaint

01:03 - 49.992 and the preliminary objections w before the appeal.

01:03 - 51.193 That is correct, Your Honor.

01:03 - 53.762 Okay. So do we have the ability to han

01:03 - 57.065 And I also don't think that in the second preliminary o

01:03 - 00.636 the issue of immunity was raised. Is that true?

01:04 - 01.504 Your Honor, forgive me.

01:04 - 02.171 I'm covering this.

01:04 - 06.541 I don't recall the nature of the what's in the second planning ob

01:04 - 10.313 This is my my colleague was handling this at the trial c

01:04 - 12.614 I could look that up real quickl

01:04 - 15.618 so, you know, be able to even he at this point.

01:04 - 17.285 My answer to that is no.

01:04 - 21.423 I do believe that that under the Pennsylvania jurisprudence,

01:04 - 25.061 when an amended complaint is fil it becomes the operative complai

01:04 - 28.930 The the original complaint, prel objections filed before the appe

01:04 - 32.067 And that is correct, Your Honor, in that reproduced record number

01:04 - 34.870 there is a copy of the docket and the timeline of events

01:04 - 38.740 that were the order from which t was taken from the trial

01:04 - 43.212 court was on January 16th, 2024.

01:04 - 47.817 We filed an amended complaint shortly thereafter on February 2

01:04 - 51.086 and the senator filed preliminary objections

01:04 - 55.391 about a week later, on February along with a brief in support.

01:04 - 59.562 It wasn't until a week on, not quite a week,

01:04 - 02.665 February 14th thereafter that this appeal was

01:05 - 06.601 And so I would submit that no, you cannot hear this because

01:05 - 10.605 because of the amended complaint the order from which this was ta

01:05 - 13.308 was sustaining in part in overruling, in part

01:05 - 15.744 preliminary objections to the original complaint.

01:05 - 19.115 And it's very important, if you look at the trial court o

01:05 - 23.852 which talks about the part that was sustained, the part was

01:05 - 27.455 has to do with the underlying de claim and the facts.

01:05 - 30.492 The part that was overruled is the issue that's before this

01:05 - 31.260 with the immunity.

01:05 - 35.630 If this court can reach those is and why I believe that's importa

01:05 - 40.903 is because it goes to the collat that brings us here today.

01:05 - 42.904 You know, we talked

01:05 - 45.440 there are the elements of this collate

01:05 - 47.909 All have to be met

01:05 - 49.577 and I'll briefly recite them.

01:05 - 53.349 This has to be severable from the underlying cause of act

01:05 - 56.251 Include a right to important to

01:05 - 59.488 and present an issue irreparably

01:05 - 03.458 As I'm sure you're all aware fro our briefing, our primary argume

01:06 - 07.596 is that the the severable issue is that here

01:06 - 11.132 this is not subject to the under cause of action, the issue,

01:06 - 15.370 the underlying merits issues as to whether the alleged

01:06 - 20.109 defamatory conduct is protected by either speech in debate

01:06 - 24.847 for immunity or sovereign immunity are inextricably intert

01:06 - 28.584 with the facts and on the record before this co

01:06 - 29.718 The facts are different

01:06 - 33.689 because there is an amended comp filed for which there are curren

01:06 - 37.893 another set of flimsy objections pending at the trial court that

01:06 - 38.527 You don't know

01:06 - 42.365 if the issue of immunity is in t set of preliminary objections.

01:06 - 45.000 I forgive me, Your Honor, I can look it up.

01:06 - 48.571 If you if you give me a moment, I'm sure I have it here in this.

01:06 - 56.637 I believe I have it here.

01:07 - 12.395 I'll try to look through as well

01:07 - 12.828 Your Honor,

01:07 - 17.399 I'm looking at reproduce record B, which is the supplemental rec

01:07 - 23.172 that we filed, which is the table of Contents.

01:07 - 27.043 And to our brief

01:07 - 31.781 I'm sorry, forgive me

01:07 - 33.448 to its to the brief

01:07 - 39.155 in opposition to the amended com and I do not

01:07 - 42.157 I do not see a reference to to those arguments.

01:07 - 45.727 And so I think that I would argu the whole appeal

01:07 - 49.799 is moot for that reason, at least on this record.

01:07 - 52.634 Well, I think there may be a footnote

01:07 - 56.338 the PO on the speech in debate was previously overruled

01:07 - 00.775 and that the senator was renewin her objection on those grounds.

01:08 - 02.444 So we don't see that much.

01:08 - 04.379 I believe so. I don't have it ri

01:08 - 10.152 I apologize for not knowing that Your Honor, for you thinks, okay

01:08 - 14.323 But if, in fact,

01:08 - 16.191 I would

01:08 - 20.429 whenever you allege about the

01:08 - 26.102 the memo, the co-sponsorship mem

01:08 - 32.174 circulated, if it is actually im

01:08 - 35.176 an the basis of sovereign immunity or speech and debate,

01:08 - 40.081 can you amend your complaint at ever to overcome

01:08 - 43.385 that?

01:08 - 44.819 I think the answer is yes.

01:08 - 46.254 And the reason that is, is becau

01:08 - 50.192 I think you have to have those f in order to determine.

01:08 - 53.262 I will concede if this court

01:08 - 56.832 or any appellate court, if it is the law of the Commonwe

01:08 - 03.072 that a co-sponsorship memoranda any circumstance ences

01:09 - 07.543 is protected by the immunities, then I would agree that

01:09 - 11.547 if that's the law, then no amend

01:09 - 15.451 Well, what is the basis of your saying

01:09 - 20.156 this co-sponsorship memo, which only referred to

01:09 - 23.158 the loophole with the individual

01:09 - 28.030 name, is not protected by speech or sovereign to me,

01:09 - 31.065 because we don't we don't believe it is within th

01:09 - 34.736 of legislative any any co-sponsorship memorandu

01:09 - 36.070 I think it would depend on the f

01:09 - 38.640 Your Honor, I want to speak to this specific

01:09 - 40.275 Okay. A copy of it in here.

01:09 - 43.545 And I think the the issue here i

01:09 - 46.715 is this legislative activity or is it political activity?

01:09 - 49.919 The case law cited extensively in the briefing

01:09 - 53.389 legislative activity, generally speaking, is protected

01:09 - 55.723 Political activity is not.

01:09 - 59.762 And among other cases, we've got the league versus government of

01:09 - 03.132 Islands case, which for the prop that a promise for

01:10 - 07.735 or future legislative acts aren' and well,

01:10 - 12.341 isn't a co-sponsorship memo always looking at future.

01:10 - 17.346 It's trying to get sponsorship so that they can

01:10 - 20.081 I think it's stating a political political po

01:10 - 23.151 here with to this statement there is no legislation.

01:10 - 27.223 I mean, I will I will quote it this is it reproduced record 54

01:10 - 31.927 the memorandum on the substance where the senator says, quote,

01:10 - 37.233 In the near future, I intend to introduce legislatio

01:10 - 39.200 which was ultimately introduced.

01:10 - 39.668 That's correct.

01:10 - 42.003 But at the time of the memorandu it was not.

01:10 - 43.738 And so this is effectively

01:10 - 47.643 a statement produced as he was trying to get support

01:10 - 50.144 because I think that's that's what the issue is,

01:10 - 53.881 is coming down to Your Honor, is I think that she's stating a

01:10 - 57.453 position here, a political polic to get support.

01:10 - 59.454 But until you have.

01:10 - 03.859 No I'm sorry, Your Honor, the se paragraph says my legislation wi

01:11 - 07.161 I No. 66 No, I agree.

01:11 - 08.831 And that's

01:11 - 09.765 that's what it says.

01:11 - 14.402 But again, we believe this is th that the senator was expounding

01:11 - 18.406 to her colleagues and on the Internet to the respo

01:11 - 22.878 to make public policy for the citizens of the Commonwe

01:11 - 24.045 It absolutely is.

01:11 - 26.180 But I think the distinction that we're drawing in this

01:11 - 29.484 case, Your Honor, where where if you get to the me

01:11 - 33.022 notwithstanding the procedural i

01:11 - 35.023 the issue is where does somethin

01:11 - 38.293 from political to being within t of legislative authority?

01:11 - 41.162 And we think there has to be

01:11 - 43.931 the legislation has to be introd it to be discussed.

01:11 - 49.471 This is are we to make that I'm she didn't make that determinati

01:11 - 50.039 I'm sorry.

01:11 - 50.339 You said.

01:11 - 54.375 The Court I think the Court on t can make the determination,

01:11 - 58.447 but at this stage it has to be based on the facts

01:11 - 59.547 in the amended complaint.

01:11 - 02.283 But if you look at this

01:12 - 04.485 memoranda, and I think that's

01:12 - 08.489 what the issue comes down to, this is our is this is a sta

01:12 - 12.360 This is my policy, my proposed.

01:12 - 14.162 But this is this is my political

01:12 - 15.730 We think this is a political sta

01:12 - 17.732 It doesn't become legislative

01:12 - 21.403 or distinguished political state from the statement of

01:12 - 24.205 I believe this should be the Commonwealth's public policy

01:12 - 28.943 And then before you answer that three is additionally, this legi

01:12 - 34.650 will require a utility in roofto to be equivalent of 5.5% of reta

01:12 - 37.585 I mean, there's a basis that she continues on

01:12 - 40.589 how she would craft,

01:12 - 42.590 and I concur that that's what it

01:12 - 45.760 I think that your line that I wo to answer your question is

01:12 - 49.063 I think you have to have the leg to debate the merits of that

01:12 - 52.067 before it becomes legislative.

01:12 - 55.270 What's the distinction and defin

01:12 - 57.338 definition of political?

01:12 - 02.144 The distinction between a politi statement and a public policy st

01:13 - 03.711 I would draw that distinction he

01:13 - 07.483 I would say that I'm asking the what is your definition

01:13 - 09.283 of a political statement?

01:13 - 12.053 I Think a political statement wo would be a statement of policy

01:13 - 15.056 objectives, of political ideas a

01:13 - 18.359 I think a legislative statement would be here is, in fact, the b

01:13 - 21.829 I've introduced here is what we need to discuss.

01:13 - 24.265 Does it meet?

01:13 - 26.067 Well, it doesn't. Is it the nuts and bolts?

01:13 - 27.068 The legislative action

01:13 - 31.106 is the nuts and bolts of the bil that would potentially become a

01:13 - 35.009 The political statement is the p the roadmap to get there.

01:13 - 39.347 I think that's where where our position distinction i

01:13 - 40.915 I hope that answers your questio

01:13 - 42.417 How does the court come in and s

01:13 - 45.386 guess the senators and state representative?

01:13 - 48.055 Well, you know, we really think what you said wa

01:13 - 52.027 political versus policy statemen

01:13 - 54.328 a bright line rule would you wri

01:13 - 57.899 We would be the courts coming in and micromanaging everything.

01:13 - 59.200 The general said.

01:13 - 04.839 I think you have to look at the where the where the issue is.

01:14 - 09.511 I think when you're talking abou the immunities that we're here t

01:14 - 11.012 I don't think they're triggered.

01:14 - 14.917 And if you read the case law, I I will reference briefly the cas

01:14 - 17.652 that was cited in appellant's

01:14 - 20.656 reply brief, the Bernstein matte

01:14 - 25.160 That was a case where that dealt

01:14 - 29.564 Marcie's law and it discussed the types of things that were le

01:14 - 35.437 in nature, investigative legisla things that were done towards th

01:14 - 39.775 In that case, there was a letter by Senator Bernstein to a collea

01:14 - 43.912 that discussed the bill that was that was found to be protected.

01:14 - 45.980 And I think that's the distincti we're drawing here,

01:14 - 47.682 because there had been actually legislation.

01:14 - 53.322 And whereas in this case, the me it talks about, in the future,

01:14 - 57.459 I will introduce legislation and the case law that we cited the p

01:14 - 00.495 promise of future legislation, Future Act is not protected.

01:15 - 04.031 And we would say, therefore, it doesn't reach the legislative

01:15 - 07.936 because there was so there's no ability for them

01:15 - 10.938 for a legislator to

01:15 - 14.642 want to include the positions of colleagues

01:15 - 19.448 or their comments or suggestions when legislation.

01:15 - 20.815 I certainly think they can.

01:15 - 24.118 They just can't do it with defamatory conduct.

01:15 - 25.319 I don't think the immunities

01:15 - 29.691 that are reached in that context it would be the same as giving a

01:15 - 32.761 that case law says would not be

01:15 - 36.265 This interest in your position t this is my position.

01:15 - 40.201 We would liken it to a political because that's her telling her c

01:15 - 41.269 this is my plan.

01:15 - 43.137 And through the Internet, postin

01:15 - 47.108 telling the citizens of the Comm this is my political objectives.

01:15 - 52.880 It doesn't become legislative until was this co-sponsorship me

01:15 - 57.218 then not consistent with the rules of the Senate.

01:15 - 01.023 With regard to those memorandum,

01:16 - 02.823 I know we are not saying that.

01:16 - 05.827 We're saying that the immunity just doesn't attach because it w

01:16 - 08.162 the submission or the introduction of the bill.

01:16 - 10.331 Would your position be changed,

01:16 - 14.102 McKee, if the last line of the memorand

01:16 - 18.172 And so to further this attach is draft legislation

01:16 - 21.175 that I intend to

01:16 - 25.146 introduce and I'm seeking co-spo I don't think so.

01:16 - 26.881 I think it would need to be intr

01:16 - 28.115 I'm looking at the U.S.

01:16 - 32.620 versus House stock case, which t about a promise to deliver a spe

01:16 - 36.892 solicit votes or promise to intr a bill is not a legislative act.

01:16 - 37.593 I think so.

01:16 - 38.626 You have a bright line.

01:16 - 41.663 Your point has to have a legisla

01:16 - 45.967 You have a bright line that co-s memoranda then are not covered

01:16 - 47.535 by the speech and debate clause.

01:16 - 51.272 Unless if the if the co-sponsorship memorandum

01:16 - 53.574 the introduction of the bill, I would draw that right. Okay.

01:16 - 56.578 So if instead they said she said

01:16 - 59.180 I introduced this bill today,

01:16 - 03.385 it's closing the Hamrick Hamrick

01:17 - 04.852 Join me in sponsoring it then.

01:17 - 06.788 That's speech and debate.

01:17 - 08.789 I think the

01:17 - 12.761 the Bernstein case would support that conclusion.

01:17 - 14.829 We asked a whole different quest

01:17 - 17.732 So It's neutral.

01:17 - 20.101 So how do we know?

01:17 - 23.070 How could you prove that they're

01:17 - 26.575 to the individual and not the ca

01:17 - 28.275 Does that make a difference?

01:17 - 31.178 Because as you know, lawyers

01:17 - 33.914 and anybody who relies upon cour decisions

01:17 - 37.119 referred to in the caption of th

01:17 - 40.321 under right to the homage

01:17 - 44.259 case, does that make a difference as o

01:17 - 47.094 individual and if it does make a difference

01:17 - 50.532 how would you prove what they were referring to?

01:17 - 51.999 She was to?

01:17 - 55.469 Well, we've alleged that it was referring to our cli

01:17 - 57.138 And at the preliminary objection

01:17 - 59.140 the trial court was bound by that allegation.

01:17 - 02.009 I think that's an issue that we would take up in discove

01:18 - 08.583 But I would note that if it wasn a loophole, if you go into disco

01:18 - 09.551 well, I don't even know if

01:18 - 12.587 how are you going to prove I mean, it has to be I don't kno

01:18 - 16.291 So you got to take the allegations as true.

01:18 - 18.325 How are you going to establish

01:18 - 21.028 that it was the individual and not the case?

01:18 - 23.264 I think we'll have to see how th settles, the discovery.

01:18 - 23.699 But I think

01:18 - 28.503 you start with the document itse and you talk about the hammer lo

01:18 - 30.404 And it wasn't a loophole.

01:18 - 36.311 I mean, it was a decision of thi and just said that these these r

01:18 - 38.846 went to loopholes, quote unquote

01:18 - 43.050 come about because we're decisio I guess we don't see it as a loo

01:18 - 43.852 Your Honor.

01:18 - 49.024 The the I know you don't, but I mean, I'm saying

01:18 - 53.494 there was there was a new law as of this court decision eventuall

01:18 - 56.031 Yes, Your Honor. That's my under

01:18 - 56.498 And so

01:18 - 00.235 that that that was the I underst that was the point.

01:19 - 05.439 What we don't take issue with th trying to change the law.

01:19 - 07.441 If she get this support, that's

01:19 - 11.780 We take issue with the statement referring to what happened in th

01:19 - 15.116 versus PUC case as a loophole and invoking his name.

01:19 - 18.085 And I appreciate that that is th of the case and that's used.

01:19 - 22.591 But we still think we can prove the defamatory nature of that.

01:19 - 26.027 So your issue is the characterization, correct?

01:19 - 29.130 That is correct, Your Honor.

01:19 - 31.499 So I think, you know, as I know I'm running out of time.

01:19 - 36.337 I think I'll just circle back an just submit that as a threshold

01:19 - 40.542 I don't think this court has jurisdiction, this case,

01:19 - 42.409 by both because of the

01:19 - 46.413 pendency of preliminary objectio to an amended complaint that hav

01:19 - 50.017 to be adjudicated by the Court of Common Pleas, as

01:19 - 53.021 we don't think that the

01:19 - 54.321 as set forth in our brief.

01:19 - 57.892 I didn't have time to get totall but we don't think that the seve

01:19 - 01.329 element of the collateral source rule can be met here.

01:20 - 04.231 And on the merits, I think we di the merits of our position,

01:20 - 06.634 But for all of the reasons discu and since I'm over,

01:20 - 10.437 I would just respectfully reques that this. Court So even if it w

01:20 - 16.178 us, you don't think that the imm would be that,

01:20 - 20.749 that that would be a collateral

01:20 - 22.049 I do not know.

01:20 - 24.485 I do not because I don't think it's sever

01:20 - 27.121 I think you have to look at the of the communication.

01:20 - 30.191 So would that always true then in any immunity case?

01:20 - 31.492 I don't think it would always be

01:20 - 34.595 I think it's a factual inquiry that depends on the circumstance

01:20 - 35.463 of the specific case.

01:20 - 36.398 In this case.

01:20 - 39.401 I don't think you can you can sl

01:20 - 42.537 So I would I would request the t

01:20 - 45.539 either be affirmed or that the court quashed the ap

01:20 - 53.540 for lack of jurisdiction. And I thank you all. Thank you.

01:20 - 00.721 Now, I know you didn't request the 3 mi

01:21 - 01.556 you did 3 minutes.

01:21 - 04.558 Okay, well, we'll certainly give you 3 minut

01:21 - 08.730 You've got a lot to respond to t

01:21 - 10.831 judge. Can I want to get to this

01:21 - 13.167 So here's the procedural,

01:21 - 15.336 which is a record one.

01:21 - 17.905 So what happened was they filed the complaint.

01:21 - 19.807 We filed preliminary objections.

01:21 - 20.709 We had an argument.

01:21 - 24.012 The judge ruled on December 16th

01:21 - 26.547 In the ruling, he he gave them l

01:21 - 29.450 to further support the defamatio

01:21 - 33.255 And then he ruled against us on the sovereign immunity

01:21 - 36.358 and speech and debate.

01:21 - 41.029 They then filed an amended compl within the 30 day period.

01:21 - 44.866 So so it was his decision was January 16th.

01:21 - 47.969 Then on

01:21 - 52.641 February 2nd, they filed amended complaint.

01:21 - 56.311 We filed preliminary objections that just as a precaution, sayin

01:21 - 58.379 we still preserve our right.

01:21 - 02.817 And then we took the appeal within the 30 day period

01:22 - 04.251 because

01:22 - 05.020 we could be in a

01:22 - 09.224 vicious cycle if we went back an preliminary objections again

01:22 - 12.393 and argued again to the judge that we're protected under sover

01:22 - 14.428 immunity and speech and debate.

01:22 - 18.767 And if he ruled that against us, and then we would then it's amen

01:22 - 21.802 And so that's how we have it.

01:22 - 22.771 So that was the issue.

01:22 - 26.740 So whether so you view this as d of the preliminary objections

01:22 - 29.810 on the amended, the first, I don't see how the the amended

01:22 - 32.947 doesn't really deal with the col or the issue that's in question.

01:22 - 35.616 Sovereign that is finally ruled

01:22 - 36.418 I don't know that I could

01:22 - 40.155 go back to the trial judge and say, Judge, hear me ou

01:22 - 42.589 I'd like to have this whole argu about sovereign immunity.

01:22 - 44.191 He would say or speech in debate

01:22 - 46.527 You said we didn't. We we just discussed that.

01:22 - 50.131 So and there was a question, do I lose that right of appeal?

01:22 - 53.601 If I don't appeal from the first Do I then live with that?

01:22 - 56.470 If they and the amended complain and you filed the same

01:22 - 59.640 preliminary objections to the am complaint that were filed previo

01:22 - 59.941 That's right.

01:22 - 04.212 We did that as a precautionary m noted, our ability to take the a

01:23 - 08.049 Now, it's sort of if you remand

01:23 - 10.951 and we have to file the prelimin objections and the judge rules

01:23 - 15.122 the same way, and then we take a will be exact with the same issu

01:23 - 18.093 So it makes no sense to just keep going in a circle.

01:23 - 20.961 We think that the proper we thin

01:23 - 23.965 we have the right to appeal that because I don't know

01:23 - 28.436 if we didn't appeal the first or I don't know if we have to live

01:23 - 29.170 decision.

01:23 - 32.373 Then I'm and the amended complai understanding it,

01:23 - 36.311 the trial court only allowed the on the basis of the.

01:23 - 37.778 It's very clear his order.

01:23 - 41.549 If you read his order, he doesn' opinion, is what it is. Yes.

01:23 - 42.750 Yeah. Yeah.

01:23 - 46.221 So I was just on the on the defa so it's like, well that's not th

01:23 - 48.489 And it goes to the point about d

01:23 - 49.723 I don't know what we're going to

01:23 - 51.392 Here's the legislative memo.

01:23 - 54.628 So just it's in the record at re

01:23 - 58.466 I mean, it's this nice colorful it says Co-sponsorship System.

01:23 - 01.502 Senate User Guide, 20 pages

01:24 - 05.139 on how senators supposed to put how you respond,

01:24 - 06.974 how you indicate if you want to co-sponsor.

01:24 - 09.910 It is clearly inherently part of the Senate rules.

01:24 - 12.312 This was adopted as the procedur and that's

01:24 - 15.215 why all the caucuses are here, because this is how they use it

01:24 - 17.551 and this is how they communicate to one another.

01:24 - 21.321 And it is also public because th has a right to know just in term

01:24 - 25.527 of what the senators are doing and the other legislators.

01:24 - 30.330 The idea that you have to be on and introduce a bill and you can

01:24 - 34.568 any work is completely shot down Bryson's decision

01:24 - 35.669 and League of Women Voters.

01:24 - 39.941 Were this talking about the prel plans for the congressional map

01:24 - 43.278 and he he says Judge Bronson says in League One

01:24 - 47.182 the protections of the speech and debate clause are not, howev

01:24 - 51.319 confined to the walls of the Pen House or Pennsylvania Senate cha

01:24 - 54.422 They also extend a fact finding information gathering

01:24 - 58.859 in investigative activities which are essential prerequisite

01:24 - 02.697 the drafting of bills in the enl debate over proposed legislation

01:25 - 07.367 And he cites the federal case of government of Virgin Isle.

01:25 - 10.872 So because the federal cases are with one another

01:25 - 14.642 with the state cases, you asked for an example of what's politic

01:25 - 17.111 Obviously, if I'm if I'm on the floor of th

01:25 - 18.645 and I say I think we should support this b

01:25 - 21.883 for whatever reason, one could c that as being political.

01:25 - 23.584 And how do you make that distinc

01:25 - 26.888 If I introduce a bill, some bill are written in a way that is pol

01:25 - 28.889 It's hard to sort of separate th

01:25 - 33.060 The key is, is there a political to to our government?

01:25 - 33.695 Of course, there's

01:25 - 36.698 going to be always political ove to Senate and House actions.

01:25 - 40.702 The key is whether it's in with the legislative sphere,

01:25 - 41.136 and that's

01:25 - 45.105 a very broad circle that surroun and clearly would include someth

01:25 - 49.309 that is done pursuant to Senate as an example of political.

01:25 - 51.812 If you're looking at what politi there's a decision

01:25 - 53.847 called Dickey versus CBS.

01:25 - 57.751 And we sometimes enter to win federal and state.

01:25 - 01.021 This is a 387 F up 1332

01:26 - 04.158 Eastern District of Pennsylvania

01:26 - 05.425 It was a single judge.

01:26 - 08.997 Judge Higginbotham was the judge for t

01:26 - 12.432 And So the guy who appears on a show, congressman

01:26 - 14.902 who appears on television show and says something

01:26 - 17.304 and there's a question about whether that's defamatory.

01:26 - 21.241 And so the judge is analyzing that situation and he says some

01:26 - 25.213 of things that congressmen might that is not a legislative act.

01:26 - 29.350 A wide range of legislative errands, perform for constituent

01:26 - 33.420 the making of appointments with agencies, assistance in securing

01:26 - 37.292 government contracts, preparing so-called newsletters to constit

01:26 - 41.362 news releases and speeches delivered outside of Congress.

01:26 - 42.729 These are political in nature

01:26 - 45.733 and as such are not protected by the speech and debate clause.

01:26 - 49.671 In light of the body of this cas interpreting speech and debate c

01:26 - 53.941 it's clear that the appearance of Congressman Williams on a tel

01:26 - 57.612 show broadcast by defendant was not protected by the clause.

01:26 - 59.580 We don't have case here.

01:26 - 03.451 We don't have a complicated inte of factual circumstances

01:27 - 06.420 where where Senator Abascal was all over the place saying th

01:27 - 10.757 It is limited to her putting the loophole in a co-sponsorship

01:27 - 15.396 memo done pursuant to the specif standards and guidelines of the

01:27 - 19.132 And therefore it is absolute pro under both speech and debate

01:27 - 20.500 and under sovereign immunity.

01:27 - 23.470 That reason the decision should be overruled

01:27 - 25.505 Thank you. Thank you very, very

01:27 - 30.043 Very interesting arguments and very well presented.

01:27 - 33.481 We will certainly be reviewing t very carefully.

01:27 - 41.022 Thank you, Your Honor.

01:27 - 43.423 Our next case involves the Pennsylvania W

01:27 - 47.629 Compensation Act in sense facts involving a fatal work injury.

01:27 - 51.098 Before we dive into those facts, there are three types of workers

01:27 - 53.000 compensation benefits at issue,

01:27 - 55.836 which will be helpful to know while you were listening.

01:27 - 58.840 The first is called Total Disabi Benefits.

01:27 - 59.607 These are benefits

01:27 - 04.212 that are paid for the duration o that an individual is unable to

01:28 - 07.047 as a result of a work related injury or illness.

01:28 - 10.518 The second type are called speci loss benefits.

01:28 - 15.055 These are benefits paid to an in person who has either lost a bod

01:28 - 19.294 or lost the ability to use a bod because of a work injury.

01:28 - 21.895 The third type are called fatal

01:28 - 25.867 These are paid to the decedent's such as surviving spouse and dep

01:28 - 31.673 If the decedent's death was caus related injury or illness

01:28 - 35.443 in 2011, Almario sustained a spi at work

01:28 - 38.512 which resulted in the loss of us of his arms and legs.

01:28 - 41.849 At first, he received total disa benefits for the injury

01:28 - 43.183 because he was unable to work.

01:28 - 47.354 As a result, in 2020, he petitioned the worker's compe

01:28 - 51.858 judge and later the Workers Comp Appeal Board for conversion

01:28 - 55.930 of his total disability benefits to specific loss benefits

01:28 - 59.567 in order to receive compensation for the loss of his arms and leg

01:28 - 03.537 Tragically, in 2021, before decision was rendered, Mr

01:29 - 07.842 Real died as a result of the wor he sustained

01:29 - 11.546 under the worker's compensation at a decedent's family may recov

01:29 - 14.949 fatal claim benefits for the surviving spouse as life

01:29 - 16.616 if two things happen.

01:29 - 20.120 First, the decedent has to have because of the work related inju

01:29 - 20.955 or illness.

01:29 - 23.757 And second, the death has to have occurred w

01:29 - 27.695 300 weeks of sustaining the inju or illness.

01:29 - 31.766 The legislator limited recovery to three weeks to prevent specul

01:29 - 35.770 as to the cause of death, years after injury occurrence.

01:29 - 38.071 If a decedent's work related injury has resulted

01:29 - 41.909 in the loss of body part or loss of the use of body part,

01:29 - 45.546 the decedent's family may recove loss benefits

01:29 - 52.720 only if the decedent's death was not caused by the work relat

01:29 - 55.021 The Workers Compensation Appeal decided Mr.

01:29 - 57.424 Rule's conversion petition was rendered moot,

01:29 - 00.927 meaning there was no longer basi to bring forth the claim. Mr.

01:30 - 04.732 Real from his work related injur so his family is not eligible

01:30 - 06.566 for specific loss benefits.

01:30 - 10.037 However, he deceased ten years after the injury occurred

01:30 - 13.541 several years beyond the three w statutory limitation.

01:30 - 16.611 So he is also an eligible for fa benefits.

01:30 - 21.615 Thus, under the Workers Compensa there's no recovery basis for Mr

01:30 - 23.116 Mills family.

01:30 - 25.352 The petitioners, Mr. and Mrs. C.

01:30 - 29.689 Real, whose interests are repres counsel, argue the Worker's Comp

01:30 - 33.661 Act fails to consider a scenario where due to modern medicine,

01:30 - 37.031 an individual dies ten years after their work injur

01:30 - 40.101 And because of this, their family is left without a r

01:30 - 43.703 Employer The respondent in these proceedings posits that

01:30 - 46.773 Real's arguments contravene the Workers Compensation Act,

01:30 - 50.478 plain meaning and well-establish president precedent.

01:30 - 53.314 Now, let's listen to the argumen

01:30 - 57.852 Next on the list is numbers 79

01:30 - 02.457 real are IHS versus Baylor Broth

01:31 - 07.829 Respondent Workers Compensation Appeal Board

01:31 - 10.197 Appeal from a decision of the Wo

01:31 - 16.737 Comp Appeal Board.

01:31 - 17.271 Good morning.

01:31 - 17.672 May I please?

01:31 - 21.776 The Court I would like to reserve 3 minutes for rebutta

01:31 - 22.777 My name is Drew Gannon.

01:31 - 26.646 On behalf of decedent Almario and his surviving

01:31 - 29.650 widow, Sadie Rep counsel,

01:31 - 32.720 Certainly

01:31 - 34.187 I'm representing Alma,

01:31 - 37.791 real decedent, as well as his surviving widow,

01:31 - 40.060 Real Mr.

01:31 - 41.127 Real Sustained.

01:31 - 43.530 A traumatic on October two. Sorr

01:31 - 46.433 And just to be clear, so we don't run into this proble

01:31 - 49.669 Did you wish to reserve rebuttal

01:31 - 51.605 3 minutes, please. Okay.

01:31 - 52.173 Okay.

01:31 - 55.075 Did you okay? Yeah.

01:31 - 56.576 He sustained a traumatic injury

01:31 - 00.414 on October 6th of 2011 when he fell off of a ladder.

01:32 - 02.549 Your time going to go really fas

01:32 - 07.054 This is an extremely important, difficult, challenging case.

01:32 - 09.956 Yes. So I want to get right to the crux of it.

01:32 - 12.492 So, as you well know, this court has issued

01:32 - 16.497 a number of decisions that are not in your favor.

01:32 - 18.064 So in order

01:32 - 23.004 to get to the result that you de how can a court get there?

01:32 - 27.775 Based on the precedent that would work against you?

01:32 - 30.076 Certainly. And I'll jump right t

01:32 - 33.313 I think Your Honor may be referr most recently to the state's dec

01:32 - 36.851 which was issued by this court, written by Your Honor, last year

01:32 - 39.719 that is currently on appeal to t Court.

01:32 - 42.122 It's been briefed but not argued

01:32 - 43.790 I believe the procedural history

01:32 - 47.695 of this case separate it from st and that there is a path forward

01:32 - 52.033 to award benefits without even getting into the le

01:32 - 55.602 or statutory construction of three of six G,

01:32 - 59.040 which was at the heart of states

01:32 - 03.543 This case is distinguished because unlike states in the Har

01:33 - 07.681 upon which it relies, the claima in those cases died.

01:33 - 11.786 And then the estate brought a cl for the specific lost benefits

01:33 - 13.720 which had already been awarded.

01:33 - 15.021 In this case, Mr.

01:33 - 19.760 Real used a unique procedure within the Act to pursue

01:33 - 23.531 specific loss benefits while he was still

01:33 - 25.432 So the decision had not been mad

01:33 - 29.470 Does that make a distinction based upon the statutory languag

01:33 - 33.473 I think with Section 410 ruling

01:33 - 37.979 that if a claim is preserved and and a claimant dies

01:33 - 41.515 before the ultimate decision, the award is still payable.

01:33 - 42.816 In this case, Mr.

01:33 - 48.723 Real sought to end his total disability benefits during his l

01:33 - 52.660 and begin collect the specific l

01:33 - 57.197 The Act allows the Appeal Board to grant that relief if it deter

01:33 - 01.969 that the financial benefit to hi is greater than otherwise.

01:34 - 04.738 So they had found that he did pr

01:34 - 08.743 or the WCG had found that he proved specific loss. Yes.

01:34 - 12.345 And I guess there is no determin that that would be

01:34 - 16.384 a greater benefit for specific l benefits than total disability.

01:34 - 18.718 My guess you can look at it on p

01:34 - 21.087 It's just there is no final ruling on that

01:34 - 23.323 The the judge found that there w

01:34 - 25.291 But the appeal board said

01:34 - 28.828 we would likely find that there a greater financial benefit to h

01:34 - 34.301 But we're deferring that based upon our reliance on three of si

01:34 - 37.370 Is the fact that that wasn't fin determined?

01:34 - 42.176 Actually, what makes fall under because it's still not adjudicat

01:34 - 44.310 Yes, sure.

01:34 - 48.249 Another distinction between stat

01:34 - 50.083 Your Honor, and the majority

01:34 - 55.021 opinion wrote that the humanitar purposes of the act are not invo

01:34 - 59.125 because states did not have a surviving widow in this case.

01:34 - 01.594 Mr. Real did have a surviving wi

01:35 - 04.799 And that was one of the main fac they cite

01:35 - 08.636 behind his decision to pursue this specific loss ben

01:35 - 12.972 He was approaching 60 at age 66.

01:35 - 16.710 His benefits would be cut based upon his receipt of Social

01:35 - 17.678 retirement benefits.

01:35 - 20.981 So it was in his own financial benefit to do so.

01:35 - 26.921 But it was also in order to prot wife and provide those benefits

01:35 - 28.655 So we're left with that

01:35 - 33.527 difficult situation where during the litigation he d

01:35 - 36.964 medically, his injuries that are related to the accident

01:35 - 41.202 he developed sepsis and

01:35 - 42.602 ultimately succumbed to that.

01:35 - 46.439 And the the medical evidence was that that was due to the effects

01:35 - 49.710 of the work injury.

01:35 - 52.011 The result here is that

01:35 - 54.848 he won his claim for specific lo benefits.

01:35 - 58.352 He proved that he had injuries separate and apart,

01:35 - 01.421 and he proved, at least to the judge, that his

01:36 - 05.593 this would be in his best financial interest,

01:36 - 06.760 that because he died of

01:36 - 10.364 the very injuries that he was being paid under,

01:36 - 15.603 the specific loss is being denie under three of six G

01:36 - 19.573 the widow, instead of being enti

01:36 - 23.277 close to 30 years worth of suppo

01:36 - 26.347 gets zero because he died from the work in

01:36 - 31.619 If he had died from cancer or any other innumerable cause

01:36 - 34.420 not related to the work injury, she would be entitled

01:36 - 35.588 to the worker's compensation.

01:36 - 38.491 But that doesn't make sense to m

01:36 - 42.463 So he agrees

01:36 - 43.963 with me.

01:36 - 46.967 It does.

01:36 - 49.269 I can't explain it

01:36 - 50.670 without getting into the well.

01:36 - 56.243 Would she be able to file a fata petition? No.

01:36 - 59.313 And that's my third argument tha

01:36 - 04.318 the act limits fatal claims to three weeks from the date of

01:37 - 05.852 Roughly six years.

01:37 - 09.757 He died roughly ten years after the injury.

01:37 - 12.392 I suggest it was due to the effe

01:37 - 15.361 of, you know, modern medicine that kept him alive.

01:37 - 18.766 But she is precluded from bringing a fatal claim,

01:37 - 24.672 and that's a distinction in Harr and in Andrus, those two cases

01:37 - 29.009 where the claimant was not allow to seek specific loss,

01:37 - 32.613 the claimant had died within two years of the injury.

01:37 - 36.050 And I think in those circumstanc

01:37 - 36.984 the court said, well,

01:37 - 40.588 you can't get specific loss beca entitled to fatal claim benefits

01:37 - 42.622 You can't double dip.

01:37 - 44.824 The way this is interpreted, Mrs

01:37 - 47.460 Rico, is being barred from eithe

01:37 - 48.962 And I think that's the injustice

01:37 - 53.000 I mean, I think when we talk sta construction, one of the presump

01:37 - 58.272 that General Assembly did not intend an absurd result,

01:37 - 59.572 and these are the

01:37 - 02.743 facts that show that it's a pretty absurd result

01:38 - 05.612 Did the WCG find that

01:38 - 07.981 he died from his work injuries?

01:38 - 11.619 Yes, that was the medical conclu

01:38 - 16.022 I'm arguing in my brief that under the definition of inj

01:38 - 19.760 and death under section 301c,

01:38 - 24.064 if it doesn't occur within three it's not a work related death.

01:38 - 27.835 And so I think we can just by the statutory language i

01:38 - 31.639 clear black letter, statutory la that we can bypass

01:38 - 36.377 three or six C and that's the pa to obtaining the benefits throug

01:38 - 41.682 But can you can you bypass it alone just wit

01:38 - 44.183 Not under

01:38 - 46.519 states, I don't believe,

01:38 - 48.988 given the this court's statutory

01:38 - 52.459 interpretation of states.

01:38 - 57.398 I think it states the death didn't occur until

01:38 - 58.464 before it occurred,

01:38 - 01.702 before the specific lost benefit requested.

01:39 - 04.037 When was the death in states?

01:39 - 05.638 The death in states?

01:39 - 08.641 No. The specific loss had already been awarded in stat

01:39 - 11.912 but was not collectible until af

01:39 - 15.448 So I agree that with the fact

01:39 - 18.452 pattern here, the death occurrin

01:39 - 21.621 prior to the actual award 410 is triggered.

01:39 - 26.126 But there will be an issue to de

01:39 - 30.597 I thought you said just correct me or clarify.

01:39 - 34.335 I thought you said you could dis states from this case, but then

01:39 - 39.306 I thought you just said to judge know, Canada, that we're kind of

01:39 - 41.708 You know, there's a barrier because of eac

01:39 - 42.609 No, I apologize.

01:39 - 45.679 I did not mean that I you can clearly distinguish stat

01:39 - 49.950 based on the procedural backgrou for all the reasons you gave bef

01:39 - 50.684 Okay.

01:39 - 53.653 You're giving us multiple option

01:39 - 57.358 how we can award benefits to your client. Yes.

01:39 - 58.725 Multiple paths.

01:39 - 03.497 And it's, you know, in coordinat

01:40 - 05.064 support of the

01:40 - 07.934 statutory language that we all k that we're supposed to pursue

01:40 - 11.305 the humanitarian purposes of the that is supposed to be

01:40 - 15.274 liberally construed, and that under these circumstanc

01:40 - 18.578 I think there are multiple oppor to comply

01:40 - 25.019 with those directives.

01:40 - 25.786 I'll leave it at that.

01:40 - 26.819 Thank you very much.

01:40 - 34.820 I thank you.

01:40 - 40.000 Good morning.

01:40 - 40.801 They pleased the court.

01:40 - 44.670 My name is Wendy Smith and I'm h on behalf of the respondent Biel

01:40 - 49.209 Brothers Inc., who is the respon appellate in this case.

01:40 - 53.080 I'm going to kind of go back to what we ended with

01:40 - 56.382 the appellants argument about these multiple paths

01:40 - 00.487 that were presented to the court to get around 306

01:41 - 02.722 this is not a novel issue,

01:41 - 06.560 that we're here before the court on the legislat

01:41 - 12.032 and the case law that has been s by this court is very clear.

01:41 - 17.103 306g as the board in this case and this court has said time

01:41 - 20.474 and time again, in the cases of

01:41 - 24.244 the state of Harris Andrus Burns

01:41 - 27.146 that is the claimant

01:41 - 30.150 dies of related reasons.

01:41 - 33.454 Specific loss benefits are not a

01:41 - 36.523 in that case, and that is exactly what the cas

01:41 - 41.295 But only the facts in the other is different in that

01:41 - 45.966 they died after the three weeks, so therefore you could

01:41 - 49.001 often find something different that it wasn't work related.

01:41 - 50.903 Like how do you prove that it wa related?

01:41 - 53.639 If it was ten years after the wo

01:41 - 57.510 I think the court is actually ad this is it 306 applies

01:41 - 59.946 regardless of the date of claima death.

01:41 - 02.950 We're dealing with a very specif

01:42 - 07.253 where in benefits, you know they talked about fatal claim benefit

01:42 - 09.789 Fatal claim benefits are not awarded in this

01:42 - 14.695 The claimant died after 300 week the original date of injury.

01:42 - 17.296 But that was the same in Burns.

01:42 - 22.302 In the case of Burns, the claima after 300 weeks was passed.

01:42 - 24.570 Original date of injury and the

01:42 - 28.542 This court has held that the pre to payment are specific loss

01:42 - 32.578 payments to survivors is that th death was from a cause

01:42 - 36.549 other than the work injury, and that was clear in burns.

01:42 - 40.487 And then also there is a that's been cited in the briefs,

01:42 - 42.255 the Zack case was announced.

01:42 - 46.727 So why would they pay specific loss benefits

01:42 - 49.595 if the death was unrelated to the injuries?

01:42 - 51.564 I can't figure that out.

01:42 - 54.300 Unrelated, Why would they pay th

01:42 - 56.202 Because I think that

01:42 - 59.472 you have to look at what the pur of specific loss benefits are.

01:42 - 02.175 There a unique category of benef

01:43 - 05.646 And in this case, it's after

01:43 - 09.850 they've been paid, targeted or total temporary disability be

01:43 - 12.920 In this case in particular or th

01:43 - 15.588 you know, there is some other pending liti

01:43 - 20.194 going on with regards to the sca that were awarded to the widow.

01:43 - 24.198 But. 30306g.

01:43 - 29.036 And the legislative intent was very clear in that

01:43 - 31.837 it in the case of death, you know, spe

01:43 - 35.409 what he could have tried to get loss benefits before he died

01:43 - 38.478 and they could have ended before he died as well.

01:43 - 40.713 I mean, the Mr.

01:43 - 43.015 Real injury was in 2011.

01:43 - 45.918 He doesn't die until 2021.

01:43 - 49.256 Wasn't the litigation still goin

01:43 - 52.892 concerning he you they found that he proved specif

01:43 - 55.761 Was the litigation still ongoing at the time that h

01:43 - 00.199 It was so to shorten up a long procedural history.

01:44 - 02.835 Originally they filed incorrectl

01:44 - 04.537 I filed a motion to dismiss

01:44 - 08.641 because the board actually has original jurisdiction on.

01:44 - 09.942 Does that really make a differen

01:44 - 13.814 I you just answered the question that litigation was still ongoin

01:44 - 18.118 And then you also answered Joe S question that the infamous wisdo

01:44 - 22.823 whatever reason the General Asse makes this distinction,

01:44 - 23.657 but here he

01:44 - 27.394 proved specific loss and the litigation is still ongo

01:44 - 32.899 So does Section 410 create a dif result than how the board was pr

01:44 - 37.537 Now, Judge Koven, actually, I was just going to get to that.

01:44 - 41.375 Well, the courts already addressed thi

01:44 - 43.943 one, the provision does not prov an independent

01:44 - 48.415 or supporting basis for the specific loss award

01:44 - 52.819 and the Section 410 is based on

01:44 - 55.922 Section 14 only applies up to the date o

01:44 - 57.290 Section 410 states.

01:44 - 02.762 In any case any claimant shall d before the final adjudication of

01:45 - 06.233 or her claim the amount of compe due such claimant.

01:45 - 10.169 And I'm going to emphasize two the date of shall be paid to

01:45 - 16.209 the dependants entitled to compe or if no dependents to this to t

01:45 - 19.245 Do you dispute that the litigation was still on

01:45 - 20.846 It was still ongoing.

01:45 - 25.285 And do you dispute that he prove that he had a specific loss?

01:45 - 27.086 He it was.

01:45 - 28.654 But there were actually issues g

01:45 - 30.690 So Mr. Real was a quadriplegic.

01:45 - 34.494 And one of the arguments that I made in the underlying ca

01:45 - 41.201 that was before the board was th he was totally permanently disab

01:45 - 44.471 and that he shouldn't have gotte loss awards.

01:45 - 50.043 I didn't appeal that because he during the pendency of that liti

01:45 - 55.282 and the board, consistent with the case law and with the j

01:45 - 59.518 with three of six G found that the specific loss b

01:45 - 02.956 that would have been awarded once TTD ended upon death

01:46 - 07.761 was not awarded to the survivors or the estate or the dependents

01:46 - 11.298 because he died of related cause

01:46 - 13.966 So I understand that the litigation was still going o

01:46 - 15.000 I could have appealed that.

01:46 - 18.037 I could have tried to say, you k I should have won,

01:46 - 21.041 because he's not entitled to spe benefits.

01:46 - 25.712 He should be deemed totally permanently disabled.

01:46 - 28.381 Therefore, you got TTD.

01:46 - 32.352 If that was deemed if I won that that you might have lost

01:46 - 33.886 I mean, I might have lost, too.

01:46 - 39.059 But he could have cheated upon d

01:46 - 40.226 But but then

01:46 - 43.229 what is supposed to happen under

01:46 - 46.867 you know, if if the injury is

01:46 - 50.636 if if the person dies within the three weeks

01:46 - 54.641 would be that the survivors coul fatal claim benefits, correct?

01:46 - 55.742 Potentially.

01:46 - 59.846 But then you have to and it is potentially because 30

01:46 - 04.316 then comes into play again as to the related, you know, was the d

01:47 - 08.722 related to the original work injury or not.

01:47 - 13.927 And so you agree that fatal clai would not you know,

01:47 - 20.634 if the widow were to file four f claims, she wouldn't be entitled

01:47 - 22.201 Not in this case.

01:47 - 23.003 No. And that's very clear.

01:47 - 26.472 And again, the court has dealt with this issue again in other c

01:47 - 29.910 BURNS And there's that case.

01:47 - 34.848 There's also another interesting that has come up in the briefs.

01:47 - 35.916 And I know that

01:47 - 38.651 just discussed in argument, but,

01:47 - 41.420 you know, we talk about the the multiple pairs have been try

01:47 - 46.660 to get around this issue and the courts longstanding case

01:47 - 47.427 section.

01:47 - 51.297 The court was correct in holding that section 301c does not creat

01:47 - 55.902 a presumption that death occurri more than 300 weeks after the in

01:47 - 00.707 now puts it in the category that the work in the death is no

01:48 - 04.811 It's not related to the original work injury.

01:48 - 08.114 I think that they're trying to p such as Toohey

01:48 - 12.219 and some other cases to try to p to provide a new category.

01:48 - 16.322 But I think that it goes back to why in doing that, I think it go

01:48 - 19.792 to the original argument that we make that three

01:48 - 24.931 of six G is the President

01:48 - 27.700 law and the cases that follow th

01:48 - 31.471 You know, again, I mentioned state address burns.

01:48 - 34.541 You know, they this court has al

01:48 - 38.378 and you state correctly, I even pulled this out.

01:48 - 42.516 You know, that

01:48 - 43.682 the state of Harris

01:48 - 49.422 and I'm going to say this is jus is precedential and that stari d

01:48 - 52.826 maintains for the purposes of so jeans stability of law.

01:48 - 56.963 The conclusion reached in one ca should be applied to those that

01:48 - 59.098 So one case is here.

01:48 - 03.770 When he applied for specific lost benefits.

01:49 - 08.174 But is that fact in the other ca that you rely upon?

01:49 - 10.809 Yes. They were all seeking speci

01:49 - 13.979 lost benefits as well as having

01:49 - 17.884 the total disability benefits in some of the cases th

01:49 - 20.954 And but that was the litigation

01:49 - 25.392 Those cases at the time that the individual

01:49 - 26.492 I think that there

01:49 - 29.662 was and Zach and I and I'm not sure in the state of

01:49 - 32.866 I know it wasn't that's what's distinguished in states.

01:49 - 36.101 But again I don't think it matters that it was ongoing.

01:49 - 40.073 I think that 3 to 6 year old brings you to the same point

01:49 - 44.144 that three of six, no matter when they die,

01:49 - 47.847 Is it related to the original wo

01:49 - 51.451 with regards to specific lost?

01:49 - 54.119 You know, again, if this was a case where, you kn

01:49 - 57.456 there was no issue with specific benefits and Mr.

01:49 - 59.625 Real had died

01:49 - 03.296 and was just getting TTD, it would be over.

01:50 - 07.900 And I know that the legislation can't account for

01:50 - 12.305 and neither can this court accou for every different situation ou

01:50 - 16.543 And I think that, you know, Judg Covey said this best in Steve

01:50 - 22.248 and I know the judges love when their words to also says this

01:50 - 25.651 that the the court considered, you know, the claimant

01:50 - 28.654 the state's policy arguments regarding the humanitarian

01:50 - 32.058 purpose of the act and the fairn and the unfairness,

01:50 - 35.227 you know, which goes to judge sa you know, isn't this absurd?

01:50 - 38.698 Is it this unfair,

01:50 - 41.567 you know, of treating claimants and their dependents differently

01:50 - 46.139 whether the claimant dies from t injury or from some other cause.

01:50 - 49.308 But ultimately, it's not this co

01:50 - 53.078 to rewrite a statute, which is what, three or six G

01:50 - 57.651 was when it was enacted by the 1 amendments,

01:50 - 00.720 just to achieve

01:51 - 02.621 a just outcome.

01:51 - 04.657 And, you know, the

01:51 - 08.293 Pelley the appellant and real fa you know,

01:51 - 12.032 they're setting forth different that this court can

01:51 - 14.733 look at to see if they can get around this.

01:51 - 17.102 But this court has already looke at those past.

01:51 - 20.373 You've already discussed the applicability of 410 and I

01:51 - 24.778 and again, I reiterate it to you after it's

01:51 - 28.481 that 410 as a general provision, it doesn't apply here.

01:51 - 31.950 You have to look at the meaning in enforce section

01:51 - 35.288 410 of the timing of the benefit

01:51 - 41.560 but also three go back to three, you know, three or six G that st

01:51 - 47.167 specifically that specific loss which is what we're dealing with

01:51 - 48.734 do not survive and they do

01:51 - 52.806 not go to the estate once

01:51 - 54.573 it is deemed that the cause of d

01:51 - 58.311 was related to the work injury.

01:51 - 00.779 And that's not at question here.

01:52 - 02.648 I mean, we put on medical eviden

01:52 - 04.550 It's not part of this appeal.

01:52 - 06.385 There's no question that Mr.

01:52 - 10.055 Real his death was caused by his original work

01:52 - 14.194 injuries is as sad as it is.

01:52 - 17.062 I also point out that

01:52 - 19.465 the case of KUJAWA has been used

01:52 - 22.469 Jerry kind of goes back to the 301c ar

01:52 - 25.705 that claimants counsel makes.

01:52 - 31.411 The widows peal appeals the die of a fatal claim petitio

01:52 - 34.213 So we're not dealing with state of claim position.

01:52 - 37.282 But the court is of course even said that under three of si

01:52 - 41.755 was the specific loss of ward to it survives the decedent's death

01:52 - 47.593 The death is not cause for compe and I think that's really import

01:52 - 51.530 Again, when I highlighted the la in the for ten about the timing

01:52 - 56.469 in Section 301, see, it's applied incorrectly he

01:52 - 02.207 Here the claimants death was not for compensation and 301c

01:53 - 06.980 only relates to cases where the due to as a cause for compensati

01:53 - 08.580 That was addressed by this court

01:53 - 15.221 in that case, which again I know is unpublished and the ca

01:53 - 19.392 just to sum up my arguments here you know,

01:53 - 22.261 the again, I'm going to go back to the lang

01:53 - 26.733 that was set forth in the state' which I think is very important

01:53 - 30.302 You know, under the statutory co principle expressed

01:53 - 33.339 you money is exclusively altria'

01:53 - 36.308 And I just want to let you I practiced that a million times

01:53 - 39.111 Yes, well done. Very impressive.

01:53 - 41.880 And I actually also looked up the definition.

01:53 - 45.585 But under that statutory constru principle,

01:53 - 49.955 the court must find that because the General Assembly condition p

01:53 - 54.661 of specific loss benefits on the because other than the work inju

01:53 - 59.799 it intended to exclude death related by the work injury.

01:54 - 03.703 And I think again, that's really

01:54 - 06.773 it at issue here in this case,

01:54 - 11.711 if you actually looked at the 19 amendments and what was changed

01:54 - 15.882 and I address this in our brief to the court, you know, all the

01:54 - 18.684 all the General Assembly, all legislation had to do

01:54 - 23.556 was move a bracket over a little if that's what they really inten

01:54 - 26.626 And I think that the in the legislative intent

01:54 - 31.931 and the case law here is very cl as to what 306g of the act

01:54 - 35.935 means, how it is applied, how it is applied in this case.

01:54 - 40.839 And again, I've had this case just as long as Mr.

01:54 - 43.843 Gannon has it is a very tragic c

01:54 - 48.147 Again, you know, you appeal on humanitarian purposes of the

01:54 - 52.485 but I circle back again that, you know, this court legis

01:54 - 56.221 you can't you weigh out the humanitarian p

01:54 - 59.192 you weigh out the fairness, the unfairness of this, but you

01:54 - 03.730 so in the employer filed the not compensation that they were goin

01:55 - 07.332 Is that how it triggered automatically a total disability

01:55 - 12.939 benefits being paid when they filed the MCP here ris

01:55 - 14.773 No. Well, yes and no.

01:55 - 17.075 So originally it was

01:55 - 18.510 the quadriplegia.

01:55 - 23.615 He was actually getting the TD because we later stipulated that

01:55 - 28.588 a psychiatric condition in relat to the quadriplegia and to the a

01:55 - 30.923 So did he get to choose?

01:55 - 34.193 That's specific loss versus total disability?

01:55 - 36.995 He did later on, a little later on, later on.

01:55 - 43.336 But in the beginning that you co have done that before, right, as

01:55 - 43.836 Thank you.

01:55 - 44.437 Thank you.

01:55 - 50.143 Thank you very much.

01:55 - 50.910 If I could just

01:55 - 54.380 first address the 410 argument,

01:55 - 59.018 the way it would work in this ca is that the benefits

01:55 - 04.257 because he died during the litig and was successful,

01:56 - 09.428 the benefits would have been con specific loss prior to his death

01:56 - 13.333 It would have been with the fili of the petition with the appeal

01:56 - 16.668 Therefore, the specific loss benefits would be in place and

01:56 - 20.505 would not stop as a result of hi if he was just litigating

01:56 - 24.610 a claim petition and died during litigation.

01:56 - 28.080 Those benefits, if he was succes the benefits would stop

01:56 - 31.049 as of death and the family would not get anything else.

01:56 - 34.486 But because he was successful in arguing that his benefits

01:56 - 38.757 should actually have been specif those continue beyond death.

01:56 - 43.563 And that's why for ten, we would not preclude ongoing be

01:56 - 46.198 of specific loss on.

01:56 - 50.803 The reliance of C bound by an original determination

01:56 - 52.738 that he was collecting the TD

01:56 - 59.579 Or is there a mistake that he sh been receiving specific loss.

01:56 - 02.682 It wasn't a mistake that he was

01:57 - 03.882 TD Right.

01:57 - 07.754 That he wasn't receiving specifi No, it was his choice

01:57 - 09.955 under the Act to petition

01:57 - 14.359 the board specifically, and then you can request the cha

01:57 - 17.363 and the WCG has the authority to any time

01:57 - 21.234 the Well, the Appeal Board has t

01:57 - 24.202 original jurisdiction on this particular issue.

01:57 - 27.407 They send it to the judge to make the decisions.

01:57 - 31.476 The Zack opinion relied upon by

01:57 - 32.911 It's an

01:57 - 35.480 unpublished memorandum opinion

01:57 - 40.085 which I submit was supersede it by the Supreme Court's decision.

01:57 - 45.023 In two and two, we dealt with a similar situatio

01:57 - 51.064 it was an occupational disease c that arose beyond the 300 week t

01:57 - 55.535 which left the surviving widow without a remedy

01:57 - 58.438 and I'd like to leave on

01:57 - 01.507 the words of now Chief Justice T

01:58 - 05.077 it is inconceivable that the Leg in enacting a statute

01:58 - 09.781 specifically designed to benefit who have suffered the most serio

01:58 - 14.487 related injuries intended to leave a certain class without

01:58 - 16.021 in that court.

01:58 - 18.857 Or in that case, the court looked at the definiti

01:58 - 24.564 of a death of an injury relating and said It shall only mean well

01:58 - 28.935 the statute says it shall only m resulting from such injury

01:58 - 34.607 and its resulting effects and oc within three weeks after the inj

01:58 - 37.976 If we apply the same Latin phras that counsel used,

01:58 - 40.980 which I will not try to repeat

01:58 - 43.715 what is included,

01:58 - 45.750 what is excluded,

01:58 - 48.153 that's why it's in Latin.

01:58 - 50.522 Whatever is included by referenc is, you know, the

01:58 - 53.526 anything that's excluded is also

01:58 - 55.193 So if we use that here,

01:58 - 59.365 if if it's beyond 300 weeks, the the death cannot be deemed work

01:58 - 01.800 And that's why

01:59 - 05.071 I think 301c provides the path forward for us.

01:59 - 06.605 Thank you.

01:59 - 07.839 Thank you very much.

01:59 - 12.210 And we are very grateful for the knowledgeable arguments

01:59 - 13.979 that you've made today.

01:59 - 15.580 In addition to your briefs.

01:59 - 20.153 It is a very difficult case.

01:59 - 24.190 Our final consolidated cases con Pennsylvania's charter school la

01:59 - 27.293 and the funding dispute between Pennsylvania charter schools.

01:59 - 31.130 The petitioners in this case and the Philadelphia School dist

01:59 - 33.031 This is the first time a charter

01:59 - 36.035 is challenging the federal rates utilized by a school district.

01:59 - 38.904 And the dispute between these pa implicates the entire

01:59 - 42.141 charter school funding system in Pennsylvania.

01:59 - 45.043 Under the charter school law, school districts are

01:59 - 46.845 to fund charter schools.

01:59 - 50.582 This law provides a statutory fo for funding and allows districts

01:59 - 54.987 to take certain deductions while calculating tuition amount

01:59 - 55.688 Initially,

01:59 - 58.925 petitioners filed a report with the Department of Education

01:59 - 02.594 claiming the School District of Philadelphia failed to pay pe

02:00 - 06.399 the proper amounts for the 2015

02:00 - 10.236 and the 2016 to 2017 years.

02:00 - 13.572 The Department of Education cons whether Philadelphia School dist

02:00 - 16.575 tuition rates, which were calculated based on c

02:00 - 20.179 expenditures, were proper.

02:00 - 23.348 The department decided the charter school law does not

02:00 - 28.453 which format or version of which prekindergarten expendi

02:00 - 33.025 Federal grant funds must be dedu from tuition calculations

02:00 - 35.827 and concluded the district's use of its amended budget

02:00 - 40.032 and deduction of certain expendi was proper.

02:00 - 42.601 On appeal to this court, petitio

02:00 - 45.938 the Department of Education aire by allowing the district

02:00 - 49.242 to take deductions that are not in the charter school law.

02:00 - 53.478 These deductions, petitioners ar resulted in the erroneous calcul

02:00 - 56.916 of petitioner's funding for the 2015 to 2016

02:00 - 59.851 and the 2016 to 2017 school year

02:00 - 00.986 The district argues

02:01 - 04.991 the Department of Education reso the competing legal obligations

02:01 - 09.661 by correctly interpreting the ch school law consistently with oth

02:01 - 14.467 law provisions and in a manner that avoids conflict with federa

02:01 - 17.102 The district contends that the Department of

02:01 - 21.440 is agency designated with overse the use of all federal grant mon

02:01 - 26.412 and that its decision is entitle to substantial deference.

02:01 - 29.914 Finally, there have been several briefs filed on behalf of the Sc

02:01 - 33.919 District of Philadelphia by Bethlehem Area School Distric

02:01 - 36.454 Northern Lehigh School District, Pittsburgh

02:01 - 40.226 School districts, and the Pennsy School Boards Association.

02:01 - 41.160 Amicus briefs

02:01 - 45.031 are filed by persons or organiza that are not parties to the acti

02:01 - 49.335 but are permitted to offer exper insight or information to the co

02:01 - 53.306 With that, let's listen to the final argume

02:01 - 57.510 And I will call numbers 82 ATC

02:01 - 00.111 consolidated cases involving

02:02 - 03.848 the Esperanza Academy Charter School Petitione

02:02 - 07.920 versus the School District of Philadelp

02:02 - 10.388 Department of Education Responde

02:02 - 14.627 And before we begin, I just want

02:02 - 16.094 thank PCN.

02:02 - 20.833 I neglected to do that at the be but PCN

02:02 - 24.636 televises our banc arguments and we're grateful

02:02 - 29.709 to the Pennsylvania cable networ for them doing so.

02:02 - 33.979 And for those of you watching th

02:02 - 38.084 televised argument, which is done at a later date,

02:02 - 43.988 you will also have the benefit of introductions from two of our

02:02 - 49.895 attorneys in our office of Chief Counsel Sam Ickes and Madison Pa

02:02 - 54.299 And I want to thank them very mu for their work and efforts

02:02 - 59.772 and appreciate the introductions that they provide.

02:02 - 01.740 So with that.

02:03 - 05.778 Now, you may begin your argument

02:03 - 07.912 Thank you for having me. Please. The Court.

02:03 - 09.914 My name is Mark Morford from MacKenna Snyder.

02:03 - 13.219 We represent the Esperanza chart in this appeal.

02:03 - 16.522 I'd like to reserve 2 minutes for rebuttal, if I may.

02:03 - 17.789 Yes, Your Honor.

02:03 - 20.792 In first Philadelphia, this court held that quote,

02:03 - 24.229 It is the authority of the depar to mandate subsidy

02:03 - 27.666 calculations inconsistent with the statutory

02:03 - 29.234 End quote.

02:03 - 32.605 But that's what the secretary's below in this matter does.

02:03 - 37.243 He mandated subsidy calculations inconsistent with the statutory

02:03 - 40.011 And because of that, we believe the secretary's decis

02:03 - 43.549 should be reversed in favor of t schools.

02:03 - 47.219 I'd like to touch on four main r for that argument, your honors.

02:03 - 51.290 One, the statute in this case that's at issue is not ambiguous

02:03 - 54.360 to the language in the statute is mandatory.

02:03 - 57.729 Three, the argument that federal somehow prohibits applying the s

02:03 - 59.697 as it is written is incorrect.

02:03 - 05.304 And four, that the secretary mis the burden of proof in this case

02:04 - 09.073 with respect to the statute and its ambiguity

02:04 - 14.646 thereof are section 1725 of the school law sets forth a calculat

02:04 - 20.185 for determining how much a distr a charter school for each studen

02:04 - 23.189 who resides in the district but attends the charter school.

02:04 - 26.859 And it has two basic calculation

02:04 - 29.994 The first calculation is the cal for a regular education

02:04 - 33.666 student, a student not receiving special education

02:04 - 35.700 And that calculation is fairly straightforward.

02:04 - 40.573 It says that the district should quote, budgeted total expenditur

02:04 - 43.908 and then it should subtract seven deductions from those budg

02:04 - 45.243 total expenditures.

02:04 - 49.148 And then you divide that by the daily membership of the district

02:04 - 50.482 in the proper idiom.

02:04 - 53.785 Average daily membership is at i in this case, but will stand on.

02:04 - 56.789 Our brief on that issue is it's it's a bit of a side issue.

02:04 - 59.958 So if that's the calculation tha

02:04 - 03.229 the amount that the resident dis is supposed to pay

02:05 - 06.030 to the charter school for each s residing there, attending

02:05 - 08.200 the charter school,

02:05 - 09.068 there's a

02:05 - 12.337 second calculation that needs to for special education students

02:05 - 16.141 that adds an additional amount on to the regular education amou

02:05 - 18.910 And that additional calculation

02:05 - 23.349 is based on the district's special education spending.

02:05 - 25.383 That calculation does not have

02:05 - 28.721 any deductions with respect to i

02:05 - 31.389 in the list, the deductions that are allowed.

02:05 - 35.026 And just to be clear, these dedu reduce the amount that the distr

02:05 - 40.265 will be paying per student to th school in that list of seven ded

02:05 - 44.270 that's allowed in the regular ed student calculation.

02:05 - 47.739 There's no language whatsoever indicating that the list of dedu

02:05 - 49.274 is not exclusive.

02:05 - 54.013 There's no words of enlargements including or including, but not

02:05 - 57.516 or any language of that sort that precede that section of the

02:05 - 58.783 It's just a list.

02:05 - 02.520 Here's the set of deductions or the other deductions.

02:06 - 04.490 Reasonable.

02:06 - 05.424 I know.

02:06 - 08.894 Not really, Your Honor, on those seven deduction.

02:06 - 11.429 I'm sorry. I guess I should ask

02:06 - 13.865 if you mean the deductions that the government allowed are

02:06 - 15.767 the ones that are listed in the

02:06 - 16.935 Now, I'm I'm sorry.

02:06 - 17.503 I should been clear.

02:06 - 21.106 The ones that the department actually took.

02:06 - 22.407 Whether they're reasonable.

02:06 - 23.042 Your Honor,

02:06 - 24.509 no, we don't believe they're a r

02:06 - 26.844 for the simple reason that they're not included in the

02:06 - 30.983 So you're you're saying that bec the statute did not specifically

02:06 - 34.218 these other deductions, that the they should not have

02:06 - 36.487 taken those deductions? Yes, that's correct.

02:06 - 37.889 Okay.

02:06 - 38.490 Thank you.

02:06 - 41.660 And, Your Honor, that specifically because of the

02:06 - 43.328 and I'm not going to attempt the here,

02:06 - 46.998 I'll just give you the English translation, which is the doctri

02:06 - 50.336 that when certain things are specifically in a statute,

02:06 - 54.173 all omissions should be understo as inclusions, as exclusions.

02:06 - 55.440 Excuse me.

02:06 - 57.976 Unless, of course, you have that kind of prefatory

02:06 - 02.114 that's absent, like including or but not limited to.

02:07 - 05.883 But can you speak directly to the one deduction regarding t

02:07 - 08.354 pre-kindergarten program?

02:07 - 10.421 Yes. You're out of the prekinder program deduction.

02:07 - 12.657 There's actually two deductions there, Your Honor,

02:07 - 17.161 and it might be possible to be c those with the ready to learn de

02:07 - 21.700 which have some additional statu language, the prekindergarten de

02:07 - 24.535 I think they're extremely signif in this case

02:07 - 28.807 because as well perhaps get to l

02:07 - 32.310 part of what the district and the various amicus

02:07 - 36.514 briefs are arguing and possibly from the secretary's decision.

02:07 - 39.350 To me at least, it's not entirel

02:07 - 42.888 Seems to be saying is, well, federal law compels th

02:07 - 44.956 But the interesting thing about the pre-kindergarten fundi

02:07 - 47.960 is there's two deductions granted for pre-kindergarten.

02:07 - 53.565 One deduction is for pre-kinderg funding from federal funds

02:07 - 57.169 and one for pre-kindergarten spending from state funds.

02:07 - 01.906 And the secretary allowed both d which in our line of thinking

02:08 - 06.311 really undermines the argument that somehow federal law require

02:08 - 11.617 These deductions because the pre-kindergarten sta

02:08 - 14.419 expenditures obviously are not affected by fe

02:08 - 16.554 That's the state pre-K counts.

02:08 - 17.555 Yes, that's correct.

02:08 - 19.290 But are you authorized?

02:08 - 21.959 I'm sorry. Were you finished? Ye

02:08 - 22.828 Are you authorized?

02:08 - 26.598 Are your charter schools authorized for pre-K programs?

02:08 - 29.902 They are not operating charter,

02:08 - 31.202 But we don't actually think that

02:08 - 35.240 particularly sniffed in here, because that comes back to kind

02:08 - 39.311 well, is it fair that the charte should have this included in the

02:08 - 41.412 But fairness is not the test her

02:08 - 43.648 The test here is what's in the s

02:08 - 46.617 And the statute contains 7% in J likely.

02:08 - 48.286 Isn't it just as likely that

02:08 - 51.322 the legislature didn't need to i those deductions in the statute

02:08 - 54.358 because there were already legal addressing the issues that you a

02:08 - 55.794 saying that

02:08 - 58.596 the district shouldn't have cons

02:08 - 01.265 I don't believe that there is any clear legal vehicle

02:09 - 03.735 that indicates that these amount should be

02:09 - 07.106 automatically excluded in any wa Your Honor.

02:09 - 10.475 I absolutely believe that the legislature, had they w

02:09 - 13.911 those be excluded, would have and should have listed them ther

02:09 - 16.915 The legislature certainly knows

02:09 - 21.253 districts spend federal dollars and spend federal grants.

02:09 - 24.356 I certainly don't believe that there's anything clear about

02:09 - 27.125 the idea that there's existing vehicles out there that

02:09 - 30.763 absolutely clear that these thin shouldn't be included in this ca

02:09 - 34.398 The secretary in his decision, he did not cite any language

02:09 - 35.633 from any federal statute.

02:09 - 38.569 He didn't cite any regulatory de

02:09 - 40.404 He didn't cite any cases.

02:09 - 43.408 Like I said, he didn't cite the of the statutes that he appears

02:09 - 46.512 to me may be compelling his deci

02:09 - 51.116 And that hardly screams clarity that that screams

02:09 - 53.985 this is something where the legi if they'd wanted to be clear,

02:09 - 57.156 they would have included those as specific deductions.

02:09 - 57.523 Okay.

02:09 - 02.059 But those specific deductions, if you're not an authorized prov

02:10 - 03.995 that would mean that you would b

02:10 - 08.133 or your schools would be getting for services that it could not p

02:10 - 10.501 Your Honor, I don't think that's the proper way to look at

02:10 - 14.306 This is just a calculation that's being made to say how muc

02:10 - 15.540 I understand that.

02:10 - 16.441 But I'm asking,

02:10 - 21.013 can you answer that question or would that actually be the si

02:10 - 24.348 I don't believe so, no, Your Hon because I think it's just

02:10 - 28.219 coming to an amount and it's not here's some for pre-kindergarten

02:10 - 29.587 some for this or some for that.

02:10 - 31.589 It's just here's an amount.

02:10 - 34.593 And I guess the best way I could when I started answering,

02:10 - 38.163 when I started answering the que that I misunderstood before

02:10 - 43.735 is, for example, there is in the deductions that are included in

02:10 - 48.774 there's deductions that district are allowed to take for, for exa

02:10 - 53.278 they can take a deduction for facility spending.

02:10 - 55.479 Well, charter schools need facil

02:10 - 56.647 All schools need facilities.

02:10 - 59.885 Even cyber charter schools have the facility at physical locatio

02:10 - 01.652 Is that deduction in any way fai

02:11 - 02.687 Does it make sense?

02:11 - 04.522 No, it's ridiculous.

02:11 - 05.790 They just said too bad for you.

02:11 - 08.760 You don't get money for faciliti

02:11 - 11.429 Similarly, there's a deduction for what they call other

02:11 - 15.601 financing uses, basically the cost of borrowing

02:11 - 17.835 And that's often a very large de

02:11 - 18.103 It is.

02:11 - 22.441 In these cases, charter schools borrow money, usually for facili

02:11 - 26.378 to buy or renovate facilities, but that's allowed to be deducte

02:11 - 29.247 So the idea of this sort of like it's it's not fair that

02:11 - 32.251 they should get pre-kindergarten

02:11 - 34.318 when they don't have a pre-kinde

02:11 - 37.221 Well, a it's not segregated pre-kindergarten funding.

02:11 - 40.124 And B, the statute are set up the way i

02:11 - 41.959 It's it's a legislative compromi

02:11 - 43.094 There are things that charter sc

02:11 - 45.663 don't get paid for that are completely unfair.

02:11 - 47.665 But that's just how the statute

02:11 - 50.568 And as this court has already in the the idea

02:11 - 53.572 is to enforce the statute as it is written.

02:11 - 57.575 I did want to touch very briefly Your Honor, on the Ready to Lear

02:11 - 58.976 which may been the other piece

02:11 - 02.047 you might have been asking about because there was a citation,

02:12 - 05.549 an additional statute that said don't include that amo

02:12 - 08.719 in the calculation on if you'll see our brief.

02:12 - 11.989 I point out that the statutes, a as they're written now, don't ta

02:12 - 16.028 about the years in question, which I think raises an issue.

02:12 - 16.728 They may have

02:12 - 19.597 the secretary may have been refe to a previous version of these s

02:12 - 22.500 I couldn't determine that on on

02:12 - 25.636 But in any case, it's also a bit of a red herring,

02:12 - 29.808 because when the district made these calculations and so the di

02:12 - 35.914 using a form drafted by the Depa made in that form is called the

02:12 - 39.851 It made these calculations not once in this case, but twice

02:12 - 43.621 it filled out a PD 363 at the beginning of the school y

02:12 - 46.591 in question and said, okay, this is what we're going to pay

02:12 - 48.759 And then it came to the hearing and it said, Hey,

02:12 - 52.364 we're going to defend these 360 that we drafted before.

02:12 - 55.433 And then they put the witnesses and the witnesses says, we can't

02:12 - 57.234 we can't recreate these calculat

02:12 - 59.670 Now, time has passed. Too much time has passed.

02:12 - 02.674 We look at our system, we can't get the exact numbers.

02:13 - 08.380 So they created new PD 363 for t

02:13 - 10.781 for the hearings, the litigation in this

02:13 - 14.686 And when they did that both orig and the second time

02:13 - 17.521 when they were calculating their quote, budget

02:13 - 21.827 a total expenditure and quote for all of these 363 f

02:13 - 25.496 they included all of these as part of their budgeted

02:13 - 29.934 total expenditures and then turn and subtracted them out, even th

02:13 - 36.274 those subtractions, those deduct are not permitted under the stat

02:13 - 39.710 I also want to point out that their own witness

02:13 - 42.680 their chief financial officer who testified said

02:13 - 46.551 he wasn't sure that those two nu netted out, is how he put it.

02:13 - 50.255 He wasn't sure that the amount t

02:13 - 53.925 originally netted out to the amo that was deducted.

02:13 - 57.262 In the course of that, they had witness who said, yes, they do n

02:13 - 59.430 but they had their CFO saying, no, I don't think they do.

02:13 - 02.500 Now, can you spend a little bit talking about which

02:14 - 06.270 budget and using legal authority to support your position on why

02:14 - 10.275 the more recent budget should not have been the one use

02:14 - 16.114 Your Honor, from my perspective, there are two things on that.

02:14 - 16.948 One is,

02:14 - 20.084 again, I think this is a little of a red herring because frankly

02:14 - 25.590 if you use their budget but don' them to take the deductions, tha

02:14 - 29.461 The non statutory deductions, to

02:14 - 33.598 I think this is really a burden situation, Your Honor.

02:14 - 38.769 The PD 2028 form that was used by the schools

02:14 - 42.707 to make their calculation as to what they thought was owin

02:14 - 49.013 is a form drafted by the Departm Education and completed by the d

02:14 - 51.415 That is it's called a quote.

02:14 - 54.051 Let's see, what is the quote?

02:14 - 57.322 It is called a

02:14 - 58.422 sorry, what's the quote here?

02:14 - 00.291 It's called a

02:15 - 02.159 final general fund budget.

02:15 - 05.630 That's a sort of final general fund budget, end quote.

02:15 - 08.132 So it's not so much.

02:15 - 11.602 And then the burden went to them under the burden of proof, in th

02:15 - 15.372 under the Antonio Pinto case and under the Chapter

02:15 - 18.776 two case, the burden was on them that it was invalid.

02:15 - 21.679 And the secretary never held that that was invalid

02:15 - 25.916 So it's not so much that their budget was necessaril

02:15 - 26.885 It was that

02:15 - 30.421 they didn't prove that our budge that the ones that we used, I sh

02:15 - 34.259 say our budget, it's the budget they completed was invalid.

02:15 - 36.361 And then third

02:15 - 37.028 and I don't know

02:15 - 41.566 if this really goes to what you' with respect to, you know,

02:15 - 45.703 legal authority, but it's simply sort of common sense.

02:15 - 50.141 The first budget, quote unquote, budget that they completed was d

02:15 - 55.013 on the last day of the school ye to which it applied June 30th, 2

02:15 - 58.083 It's hard to conceive of how any

02:15 - 02.153 think of something like that in witness testified that, yes, of

02:16 - 06.191 you would take your actual spend into consideration when you calc

02:16 - 08.425 you know, putting together an amended budget, if you knew i

02:16 - 11.428 up to that day and,

02:16 - 16.100 you know, they knew 365 out of 365 days of their of thei

02:16 - 19.203 and spending by that point that see that I'm pattern of tim

02:16 - 23.908 So I'll just conclude by saying we would request that discord en

02:16 - 28.346 the statute as written and reverse the secretary's deci

02:16 - 36.413 Thank you. Thank you very much.

02:16 - 40.191 Good afternoon.

02:16 - 43.928 This is almost not quite still m may have pleased the court.

02:16 - 46.932 Alison Peterson on behalf of the district of Philadelphia,

02:16 - 51.369 I want to thank the court for he very important case on Bonk.

02:16 - 54.673 We have issues here that have never been presented

02:16 - 58.509 in the history of the charter school law back to 1997.

02:16 - 02.581 So if my math is correct, that's approximately 27 years.

02:17 - 07.152 This is the first time any charter school has

02:17 - 10.454 filed litigation and challenged

02:17 - 14.793 in which a school district has calculated the rates,

02:17 - 19.397 reflecting specifically on the federal funds, inclusion

02:17 - 23.368 and the ready to learn block grant and pre-K.

02:17 - 26.837 This is an issue of vast signifi

02:17 - 30.075 and ramification to school districts in Pennsylva

02:17 - 33.210 The record that you have in fron which happens

02:17 - 36.982 to involve the largest school district in Pennsylvania,

02:17 - 40.318 indicates clearly and undisputed

02:17 - 44.689 that if the argument that these two charter schools

02:17 - 49.894 in the state out of the 150 plus charter schools in the stat

02:17 - 53.897 the argument that they are makin would have ramifications on the

02:17 - 59.804 District of Philadelphia alone to the tune of over $100 million

02:17 - 03.841 It's not often that an attorney has to come before this tribunal

02:18 - 07.512 a case of that magnitude, and that is not lost on me.

02:18 - 10.982 But this is so important that we do have the participatio

02:18 - 15.186 The amicus parties here and the district is very grateful for th

02:18 - 18.256 because this is a case of statew importance.

02:18 - 22.694 The arguments that are making ap every charter school

02:18 - 27.164 in terms of how they are funded, because the rates that are calcu

02:18 - 32.337 for every school district are th that they pay to charter school.

02:18 - 37.008 This is not just about Esperanza or Esperanza Cyber School.

02:18 - 40.811 It is about every charter school that it is is enrolling

02:18 - 45.216 school students in the school di of Philadelphia in in our situat

02:18 - 48.920 There are 87 brick and mortar charter schools.

02:18 - 53.291 At the time this case was filed, operating in the school district

02:18 - 57.394 all being paid the same rates, plus all of the students

02:18 - 02.100 that enroll in the cyber charter that Philadelphia residents

02:19 - 03.300 enroll in.

02:19 - 07.305 So the magnitude here can't be understa

02:19 - 09.173 The arguments that they are

02:19 - 12.410 making are not in law.

02:19 - 12.844 All right.

02:19 - 16.348 Well, and just to confirm, these

02:19 - 20.285 calculations are the ones that t did that the department

02:19 - 25.223 and school district have been using since 1996.

02:19 - 26.191 90. Correct.

02:19 - 30.695 The PD 363 form that council referenced is the f

02:19 - 33.630 that the department has utilized

02:19 - 37.201 I maybe since 1998, they had to get their feet under

02:19 - 40.405 a little bit after the charter school law was

02:19 - 43.407 And it has always permitted

02:19 - 47.712 federal funds, so expenditures paid for with federal funds

02:19 - 54.519 because those funds are specific for the purposes in federal law

02:19 - 58.990 for the reasons that are in ever district's unique application,

02:19 - 05.163 a consolidated application that as the state educational Agency

02:20 - 11.936 administering federal Law in Pen under Title one, Title three, et

02:20 - 13.504 And those

02:20 - 17.341 PD has always permitted federal funds to be excluded

02:20 - 21.812 because those are specific grant that are and they acknowledge

02:20 - 25.817 that the federal funds are part of what they're looking for.

02:20 - 27.050 They they won.

02:20 - 29.620 Well, it's interesting you bring that up, Judge Kobi,

02:20 - 32.757 because the way their argument has now morphed,

02:20 - 35.759 they started out saying that they started out say

02:20 - 39.596 that every school district that receives federal funds,

02:20 - 43.501 which I would hazard a guess in Pennsylvania, is all 50

02:20 - 46.003 must include the federal funds

02:20 - 49.674 as part of the charter school calculation rate calculation.

02:20 - 53.043 Their argument has now morphed that it's really up

02:20 - 57.681 to the school districts to decide for themselves

02:20 - 02.754 if they want to include federal in their general fund budget.

02:21 - 06.724 And if they happen to choose to

02:21 - 08.325 then they have

02:21 - 11.462 to pay the charter schools a portion of those federal funds

02:21 - 15.599 and include that those funds in the recalculation, those scho

02:21 - 20.438 districts and Philadelphia happe to be one of those that, ironica

02:21 - 23.608 federal funds are not in Philade general fund budget,

02:21 - 28.079 which is supposed to be what charter school rates are up

02:21 - 31.148 There are categorical funds that are in a separate budget

02:21 - 34.084 because they're subject to all kinds of different rules.

02:21 - 38.690 But Philadelphia, to make things nice and neat and tidy per piece

02:21 - 41.024 direction to file their 2028 for

02:21 - 45.063 every year has to add those funds back into the mix,

02:21 - 49.667 and they want to rely on 2028 fo that's convenient to their argum

02:21 - 52.503 that those funds need to be in, but they're not.

02:21 - 54.037 No school district is required

02:21 - 57.308 to include federal funds in their general fund budget.

02:21 - 00.077 So that's that's one of our prin arguments

02:22 - 03.081 is what we're talking about here isn't even required.

02:22 - 06.451 But those districts that don't c

02:22 - 10.555 to include federal funds in their 2028 form

02:22 - 13.625 under their nuanced new argument

02:22 - 18.630 don't have to include federal fu in the mix of the rate calculati

02:22 - 20.797 What does that result in?

02:22 - 25.469 Probably a denial of equal prote because now you are treating sch

02:22 - 28.472 districts unequally in terms

02:22 - 31.809 of how they fund charter schools

02:22 - 37.348 So a charter school might take kids from Philadelphia where

02:22 - 41.252 the 2028 form happens to include the fede

02:22 - 44.989 they might take kids from Chelte

02:22 - 49.793 I Don't know what John Hamm does but Cheltenham could choose to e

02:22 - 54.699 the federal funds from their bud which means their rates would no

02:22 - 58.002 federal funds, meaning their rates would be low

02:22 - 59.770 Did you say that P.D.

02:22 - 04.942 informs Philadelphia that this i that they had to complete their

02:23 - 10.081 informs School District in Penns through the 363 form

02:23 - 13.550 that they're on the second page there is a list of deductions.

02:23 - 15.652 It includes the seven deductions

02:23 - 17.020 Morford referenced.

02:23 - 20.358 It also includes deductions for every funding code

02:23 - 22.793 that are funded with federal fun

02:23 - 27.198 It includes the pre-K expenditur that were referenced earlier.

02:23 - 30.567 And there is a line item to deduct the portion of the rea

02:23 - 35.206 to learn block grant that is explicitly stated in sta

02:23 - 40.244 not to be included in the calcul of charter school funding.

02:23 - 43.780 And that is how every district, to the best of my understanding,

02:23 - 48.353 calculates their specific unique

02:23 - 50.988 and reports that to PD.

02:23 - 54.224 And that has been the consistent constant directio

02:23 - 56.927 since The charter school law was

02:23 - 59.731 But you said earlier that

02:23 - 03.567 federal funds are treated differ

02:24 - 08.206 In a report differently in Phila than some of the other counties

02:24 - 11.274 in terms of whether they are add

02:24 - 14.978 into the budget for purposes of calculating charter school fundi

02:24 - 19.751 Yes, Philadelphia, there is sign testimony about this in the reco

02:24 - 22.319 I can't cite any specific, but M

02:24 - 26.123 Munson, who's now secretary of t here in the Commonwealth,

02:24 - 29.127 was the CFO at the time for the school distr

02:24 - 34.032 He testified Edward Rogalski, who's an accounting

02:24 - 37.769 officer in the district, testified exten

02:24 - 42.073 about the steps that the district has to take

02:24 - 45.610 to neatly package the 28 form.

02:24 - 47.544 And that's what then they utiliz

02:24 - 49.780 So they add the federal funds in

02:24 - 54.385 but with the understanding always that they would then take

02:24 - 56.687 Same with the prekindergarten ex

02:24 - 58.321 Those are categorical funds.

02:24 - 02.026 They're not in the district's ge and therefore

02:25 - 05.930 they're just added back for the 2028 process.

02:25 - 10.034 But they're not part of that because they have their own spec

02:25 - 13.171 grant responsibilities that.

02:25 - 15.572 But is that unique to Philadelph

02:25 - 18.508 I think that there are probably other districts that do that.

02:25 - 22.046 We don't have a record in this case to support that.

02:25 - 23.213 It could be

02:25 - 26.983 that other districts don't accou for federal funds in that way,

02:25 - 32.589 and it could be that other distr not even include federal funds a

02:25 - 35.926 Their 363 form, which means the

02:25 - 39.230 would be zero because they weren't there to be

02:25 - 44.634 And I'm just talking about the purpose of the charter

02:25 - 49.006 school law, because that's reall what's at the heart of this case

02:25 - 52.610 The two charter schools want to focus on the seven deduc

02:25 - 57.981 but you really need to look at t purpose of this, the law, which

02:25 - 03.821 make sure that students attendin schools are are paid for.

02:26 - 08.859 Okay, There are no pre-K student three and four year olds

02:26 - 13.064 attending any charter school in Pennsylvania including these

02:26 - 16.434 They don't they don't make that representat

02:26 - 21.839 There is no reason with in terms of the intent of the charter sch

02:26 - 27.278 to fund those students because they don't exist there.

02:26 - 28.445 Similarly with

02:26 - 32.215 the federal funds, charter schoo receive their own federal funds

02:26 - 36.587 based upon their unique populati of students sitting in their sea

02:26 - 40.992 Federal funds are not issued based on the concept

02:26 - 46.197 a Adim average daily membership, which is a creature of state law

02:26 - 51.035 They are issued as a result of grant application

02:26 - 54.037 that each each LGA,

02:26 - 57.942 local educational agency, school districts and charter schools

02:26 - 01.045 individually submit to PTA

02:27 - 04.448 as the SCA State Educational Age

02:27 - 09.654 and that those applications dict what money they get.

02:27 - 11.788 Now, those could be competitive applications.

02:27 - 14.792 They could be formula driven app for Title one money,

02:27 - 17.962 but it's all based on who is sitting in those seats.

02:27 - 23.201 So if the deductions are

02:27 - 26.736 allowed to move forward the way you request, does

02:27 - 30.574 that create incentives on charte

02:27 - 33.578 not apply for those federal fund

02:27 - 36.179 Absolutely not, because they hav

02:27 - 40.317 and I believe it was in SBA's amicus brief cited statistics.

02:27 - 44.422 I think it was from the 2020, 2021 school year

02:27 - 48.825 that charter schools alone are receiving over $450

02:27 - 54.732 million in federal funds annually, or at least in that ye

02:27 - 55.733 So they are

02:27 - 58.768 receiving those funds for their unique kids.

02:27 - 04.709 They are not getting slighted or deprived of any funding simpl

02:28 - 09.479 PD, pursuant to their understand of the statutory construction is

02:28 - 14.318 here, requires those federal fun to be deducted from from the ove

02:28 - 17.922 calculation.

02:28 - 19.689 Can you address this argument

02:28 - 23.995 about the budget and it being completed the day b

02:28 - 27.797 So this isn't an interesting thi

02:28 - 34.004 that again, may be unique to Phi because of the way the Home Rule

02:28 - 38.775 is set up and expressively permits amended

02:28 - 42.412 although there are provisions in the school code that allow a

02:28 - 45.882 district, any school district to amend their budget and.

02:28 - 50.287 Certainly I think part of the re that we don't have

02:28 - 55.192 a more specific definition in th school law about what a budget i

02:28 - 58.262 is because that could be unique to every district,

02:28 - 00.864 because the circumstances in every district

02:29 - 04.701 are going to be unique from year to year in Philadelphi

02:29 - 09.040 It just so happens as a matter of course, under the Home Rule C

02:29 - 13.176 the school district amends its b annually and it typically does

02:29 - 14.611 so by the end of May.

02:29 - 16.780 But in this, in one of the years that issue,

02:29 - 19.049 it happened to have to wait a little bit lon

02:29 - 22.053 There was some issues that were

02:29 - 26.257 but it is still a budget and it

02:29 - 28.024 legally authorized

02:29 - 31.962 budget that we are not talking about actual expenses.

02:29 - 34.264 This is not first Philadelphia.

02:29 - 35.899 It never has.

02:29 - 39.370 And the charter schools, if they had thought

02:29 - 44.809 there was a basis to argue that the amended budget was an a

02:29 - 49.146 the actual expenditures could have put on testimony

02:29 - 52.949 to, for instance, bring the district's IFR,

02:29 - 57.922 the annual financial report, which reports out on actual expe

02:29 - 03.927 into the record here to try to c and suggest, it's actual noneven

02:30 - 05.061 It didn't do that.

02:30 - 08.064 So there's nothing in the record that's in front of you

02:30 - 12.669 that would even indicate these a budget figures have any relation

02:30 - 17.074 to what ended up being the actua at the end of the school year.

02:30 - 19.342 A budget is a budget.

02:30 - 21.946 It is a projection.

02:30 - 23.713 An amended budget could

02:30 - 27.318 based on a more real time expect

02:30 - 30.621 But all it is is authorizing spending to occur.

02:30 - 33.623 And if that doesn't happen,

02:30 - 37.694 the district can't spend the mon but that has no relationship

02:30 - 40.698 to what they end up actually spending at the end of the year.

02:30 - 46.737 And there's no indication in the here that the amended budget was

02:30 - 50.540 There is nothing in the charter school law, in the fiscal code,

02:30 - 55.079 in any other provision of the sc that would

02:30 - 58.983 support their argument that an amended budget

02:30 - 04.121 can't be used for purposes of of calculating the rates.

02:31 - 07.590 And in fact, it wouldn't make se from a timing perspective

02:31 - 13.164 because when you calculate the c rates, you're calculating the ne

02:31 - 16.467 rates based on the prior year.

02:31 - 19.502 So they would already have that information.

02:31 - 22.773 The charter schools, this these are things that are done i

02:31 - 27.478 these are things that are done at public board meetings.

02:31 - 31.014 And the charter school would kno that an amended budget was happe

02:31 - 34.617 But the district has always util its amended budget to do this

02:31 - 37.220 since the beginning. This is not a new phenomenon.

02:31 - 41.025 This is not a change in circumst like what happened in first Phil

02:31 - 43.259 This is the way it's always been

02:31 - 46.062 And so the district, the rates that every charter sch

02:31 - 50.033 has been paid to date since 1997 by the school

02:31 - 55.439 District of Philadelphia have be on their amended budget rates.

02:31 - 58.843 I'm happy to answer any other qu but I thank you for your time.

02:31 - 03.581 Certainly the district is asking and seeking the Court to affirm

02:32 - 07.618 the Secretary's decision on this

02:32 - 08.552 with your questions.

02:32 - 14.091 Thank you very much,

02:32 - 14.692 Your Honor.

02:32 - 18.496 With respect to opposing counsel argument

02:32 - 21.331 of both regarding sort of the impact of this decis

02:32 - 25.336 and sort of saying, hey, you kno the purpose of the charter schoo

02:32 - 29.106 as this court knows, we're not supposed to disregard

02:32 - 33.210 of the statute in the guise of pursuing the spirit of the st

02:32 - 37.548 There are seven deductions set forth in Section 1725 eighth

02:32 - 42.820 the form that was used here allo

02:32 - 45.890 that doesn't comply with the letter of the law

02:32 - 50.960 and willy nilly adding on 15 ded based on the idea that that's fa

02:32 - 55.432 or closer to the purpose of the school law is not allowed.

02:32 - 00.203 Counsel referenced the idea that there was nothing in the re

02:33 - 04.475 showing that the actual budget was based on

02:33 - 08.112 or excuse me, the amended budget was based on actual spending.

02:33 - 09.579 Their own witness, Mr.

02:33 - 12.682 Rogalski, had testified that he would expect

02:33 - 17.821 anybody calculating a budget like anybody would if calculatin

02:33 - 18.289 during the

02:33 - 21.292 course of the period where spending has been going.

02:33 - 24.060 You're going to take your actual spending into account.

02:33 - 29.433 So you think that the amended bu then would be the same as the IF

02:33 - 32.869 I don't know that I can't testif because the AFR is not in the re

02:33 - 36.506 But I guess more to the point is kind of slipping the burden of p

02:33 - 38.641 The burden was on them to prove

02:33 - 41.845 that the charter schools calculation was invalid,

02:33 - 46.417 not on the charter school to pro the district's calculation was i

02:33 - 48.318 But I do think just on the face

02:33 - 51.555 adopting a budget on the last day of the budget pe

02:33 - 55.725 looks a lot like actual spending like a violation of this court's

02:33 - 57.060 On First Philadelphia.

02:33 - 00.730 Is there any prohibition for the to use an amended, amended budge

02:34 - 04.768 Isn't it the opposite that amend budgets are authorized?

02:34 - 07.470 Amended budgets are authorized b Rule charter?

02:34 - 08.105 Yes, Your Honor.

02:34 - 09.606 But I think there's a real quest

02:34 - 13.310 whether something adopted the last day is an actual budget

02:34 - 16.780 And then I just last very briefly wanted to

02:34 - 19.215 point out that she raised an equal protection argument.

02:34 - 22.219 That's not in any of the briefin is not before the court.

02:34 - 23.519 Thank you.

02:34 - 25.021 Thank you very, very much.

02:34 - 28.192 Very, very interesting case.

02:34 - 30.393 And as the

02:34 - 34.732 were very well presented and arg

02:34 - 36.532 in session on the last point.

02:34 - 41.905 Counsel Yeah, it looks like

02:34 - 43.540 of course the center.