00:00 - Good morning everyone.

00:05 - Welcome to the first day

00:06 - of our oral arguments session for the fall

00:09 - here in our magnificent courtroom in Pittsburgh.

00:13 - As many of you know, the Pennsylvania Supreme

00:17 - Court is the oldest supreme court in North America.

00:21 - Our roots date back to William Penn's provincial court

00:24 - of 1684,

00:27 - and the Supreme Court was formally established pursuant

00:31 - to the Pennsylvania Judiciary Act of 1722.

00:35 - In 2022, we celebrated

00:38 - the court's historic 300th anniversary in Philadelphia,

00:42 - and we are all very proud of our rich history.

00:46 - We sit today in Pittsburgh City-County building,

00:49 - a 1917 granite Art Deco building

00:53 - which was designed by renowned local architect Henry Horne Bhosle.

00:58 - The city County building houses executive,

01:01 - legislative and judicial offices

01:04 - for both the City of Pittsburgh and Allegheny County.

01:11 - Before we begin, I would like

01:13 - to recognize some of our law students who are here with us today.

01:17 - They are third year students from Duquesne,

01:21 - Thomas our Klein School of Law, whose professor Lauren

01:25 - Gailey, arranged for them to attend our oral argument session today.

01:30 - Our students, would you stand

01:32 - if you're not already standing so you can be recognized?

01:36 - We're happy to have you here.

01:38 - We hope that you will find today's arguments interesting and educational,

01:43 - and I hope that none of the attorneys

01:47 - dissuade you from pursuing careers in law.

01:50 - Thanks for being here.

01:52 - Before we hear the first case, I'd like to remind Council of a few things.

01:56 - Appellant's counsel, please approach the podium when your case is called.

02:00 - I will then give a short summary of your case.

02:03 - You may then begin by stating your name and the party you represent,

02:08 - and introducing your co-counsel to the court.

02:12 - The justices are familiar with your cases, so I ask that

02:16 - you avoid any unnecessary recitation of the facts or procedural history,

02:21 - and instead focus on the main issues on which we granted review.

02:27 - Counsel is welcome to rely on their briefs for any particular issues.

02:32 - Please remember that we do not permit rebuttal

02:36 - in cases where there are multiple parties represented by separate counsel.

02:41 - You should avoid repeating the same arguments as prior counsel.

02:45 - Please try not to interrupt the judges

02:48 - when they are asking you a question, although they may be interrupting you.

02:52 - A justice's question is not meant to trip you up.

02:55 - Rather, it indicates there are particular issues we wish to explore further.

03:01 - While there's no set time for oral argument, I will advise counsel

03:05 - when the court is satisfied that all of its questions have been answered.

03:09 - And at that time, I will ask that you conclude your argument.

03:14 - Hello, I am Joseph Butcher.

03:16 - I'm an attorney with the law firm Zimmer Coons here in Pittsburgh, Pennsylvania.

03:19 - I'm a civil trial lawyer and which includes appellate law in my practice.

03:23 - I am joined by Marc Millsap of Burger and Green, who handles personal

03:27 - injury litigation and also practices appellate law.

03:30 - We're here to introduce the arguments by the Pennsylvania

03:34 - in front of the Pennsylvania Supreme Court.

03:36 - The Pennsylvania Supreme Court typically takes cases from the Commonwealth Court

03:41 - and the Superior Court,

03:42 - which are the intermediate appellate courts of Pennsylvania.

03:46 - Those cases typically involve disputes of Pennsylvania law

03:49 - that have not been decided by the intermediate appellate courts

03:54 - previously, and therefore

03:56 - this is a chance typically 1 in 6 chances in a year, for the Supreme Court to meet

04:01 - and discuss those cases and resolve those issues of Pennsylvania law.

04:06 - Our first

04:06 - case is Commonwealth versus Lee, which raises important questions

04:10 - under both the Pennsylvania Constitution and the United States Constitution,

04:15 - involving sentencing of second degree murder convictions.

04:20 - Under Pennsylvania law, a second degree murder is defined

04:24 - as a criminal homicide that constitutes murder of the second degree

04:28 - when it is committed while the defendant was engaged as a principal

04:32 - or an accomplice in the perpetration of a felony.

04:36 - In this case, Lee and another man robbed a family at gunpoint in their home

04:42 - while the family was with the other robber.

04:44 - The man victim struggled with the gun and was shot and killed by the other.

04:50 - While Lee was upstairs.

04:54 - He was subsequently was subsequently convicted of second

04:57 - degree murder, robbery and conspiracy to commit robbery.

05:03 - In this case, the Supreme Court

05:04 - has agreed to hear this case on two bases.

05:08 - The first question that the court agreed to hear

05:10 - is whether or not the petitioner's mandatory sentence

05:14 - of life imprisonment with no possibility of parole.

05:18 - Parole unconstitutional under article one, section 13

05:22 - of the Constitution of Pennsylvania, where he was convicted

05:25 - of second degree murder in which he did not kill or intend to kill,

05:30 - and therefore had categorically diminished culpability,

05:34 - and where article one, section 13

05:36 - should provide better protections in these circumstances

05:40 - than the Eighth Amendment of the United States Constitution.

05:44 - The second issue that they agreed to here is whether or not petitioner's mandatory

05:49 - sentence of life imprisonment with no possibility of parole

05:53 - is unconstitutional under the Eighth Amendment of the U.S.

05:56 - Constitution, where he was convicted of second degree murder

06:00 - in which he did not kill or intend to kill,

06:03 - and therefore had categorically diminished culpability under the Eighth Amendment.

06:09 - The two constitutional provisions appear in the separate constitutions

06:14 - of Pennsylvania and of the United States, but contain the same language.

06:19 - Language under both constitutions provides that excessive bail

06:23 - shall not be required, nor excessive fines imposed,

06:26 - nor cruel punishment inflicted.

06:30 - So the question

06:32 - under today's argument will raise whether or not

06:36 - the person who did not do the actual killing

06:39 - should be convicted of life

06:42 - for life imprisonment without the possibility of parole.

06:46 - This issue is considered possibly a cruel punishment

06:51 - under the Constitution of Pennsylvania and the United States.

06:55 - One of the key issues that will come up

06:58 - is whether or not the actor who's convicted of second degree murder

07:03 - had sufficient mens rea for mens

07:06 - rea is simply the intent to kill.

07:10 - Another important thing to realize in this argument is that it involves

07:14 - not only a question of whether or not the the statute was fair or unfair to Lee,

07:20 - but also involves a facial challenge, meaning that the statute as a whole

07:25 - is unfair to all criminal defendants.

07:29 - So that is, it is implied under other circumstances.

07:32 - It may be unfair to those actors as well.

07:35 - One of the examples would be an individual who was driving a getaway car,

07:40 - who did not realize that a murder was going to be committed,

07:43 - and may not have even realized that a murder had been committed.

07:47 - Let's hear the arguments in this case.

07:51 - Thank you, Your Honor.

07:52 - And first, I'd like to introduce my co-counsel,

07:54 - Clint Cousins, and some of CSA.

07:56 - And in the gallery of parties Cabrini hosted in Rupali Tours and Nikki Krantz.

08:02 - Welcome.

08:04 - Good morning. And may it please the court.

08:05 - My name is Brick Rodi and I represent appellant Derrick Lee,

08:09 - who has been sentenced to die in prison for a felony murder conviction based

08:12 - on his role in a robbery in which he did not take a life or intend to take a life.

08:17 - If Mr.

08:17 - Lee lived to be 76 years old, at which point it will be the year 2064

08:23 - and he will have been incarcerated for 50 years, even then,

08:26 - he will not be able to go in front of the parole board,

08:29 - even if the Department of Corrections

08:31 - considers him long since completely rehabilitated,

08:34 - he must die in prison for the unintended consequences

08:37 - of criminal conduct and a killing committed by another person.

08:41 - This must no longer be permitted under the Pennsylvania Constitution.

08:45 - It speaks

08:46 - volumes that the Commonwealth and its Mickey do not defend life without parole

08:51 - for felony murder, on the basis that it is necessary to deter crime, or that it has

08:56 - any greater deterrent effect than life with parole for felony murder would has.

09:02 - The only real dispute they raise is that the Pennsylvania Constitution's

09:06 - provision outlawing cruel punishments

09:09 - must be interpreted identically to the United States

09:12 - Supreme Court's interpretation of the Eighth Amendment's Cruel

09:15 - and Unusual punishment clause, which they argue would deny. Mr.

09:19 - Lee, release. What?

09:20 - What do you say to persuade us that our Pennsylvania Constitution provides

09:26 - broader protection against punishment than the US Constitution?

09:32 - Thank you for that question.

09:33 - I would cite to the distinct text and the history informing the meaning

09:39 - of the Pennsylvania

09:40 - Constitution, as well as the meaning of the federal Constitution,

09:44 - Pennsylvania constitutions, cruel punishments, federal

09:46 - constitution, cruel and unusual punishments.

09:50 - Starting with the federal constitution, the term unusual has a distinct

09:54 - substantive meaning within the US Supreme Court's jurisprudence.

09:59 - This was recognized in Harmon Lindsay, Michigan, where it was mentioned that

10:04 - discussed that unusual meant, contrary to long usage, contrary to the common law.

10:10 - This was reiterated in Buckley versus presses in 2019.

10:15 - In just this past summer, in the Grants Pass case, unusual meant punishments that

10:22 - had fallen out of usage and

10:23 - that were not recognized as common within the jurisdiction.

10:28 - Our court held that, those two constitutional provisions

10:33 - are so extensive, this court has held that in Commonwealth the zero.

10:37 - Moyer Commonwealth C Baker Commonwealth C bats.

10:40 - But it is made clear, especially in the post Edmonds holdings,

10:45 - that an Edmonds analysis must be engaged in

10:48 - every time a specific claim is raised under the state constitution.

10:53 - This is the first time that life without parole

10:56 - for felony murder has been in front of this court.

10:59 - Under an article one section 13 claim.

11:02 - Which counsel brings me to my particular concern for us

11:06 - to tread on the Constitution is a significant act.

11:11 - The concern that you're addressing is not so much a constitutional issue,

11:15 - but a statutory issue for which life without parole

11:19 - is applicable under statute 6137 for felony murder.

11:25 - Why should we not restrain from addressing the constitutional issue

11:29 - and require the General Assembly to amend that statute?

11:35 - This court cannot

11:36 - require the General Assembly to amend the statute without that,

11:42 - without

11:44 - striking down an unconstitutional statute,

11:47 - which then could incentivize them to make that particular change.

11:50 - But there is a legal question in front of this court as to whether Mr.

11:53 - Lee's sentence violates article one, section 13.

11:57 - In the assessment for whether it violates article one, section 13 must flow

12:02 - from the Edmonds analysis in the standard that is applied to assess this sentence.

12:07 - Under the Edmonds analysis, we have to go back to the history

12:12 - of the founding in the very framing of article one,

12:14 - section 13 Cruel Punishment clause, and to,

12:18 - refer to the zero Moyer Baker bats line of cases.

12:22 - None of those cases addressed this history, and we have thoroughly briefed,

12:28 - incited ample historical evidence that the founders

12:33 - of the Commonwealth of Pennsylvania viewed cruel punishments as those punishments

12:37 - which were excessive to the need to deter others from committing crime

12:41 - and to reform the person who is.

12:45 - Question on that.

12:46 - I'm sorry. Could be done in just a moment.

12:48 - As I understand your argument, you are not saying that

12:52 - there aren't some cases of, felony murder

12:56 - that would be appropriate for a life without parole sentence,

13:01 - but that yours is not, and that, the courts should have the discretion.

13:06 - Therefore, we should strike the mandatory part of the statute.

13:11 - So thank you for that question.

13:13 - We believe there's multiple different ways you can strike Mr.

13:16 - Lee's sentence down in the way that we think categorically addresses

13:20 - the disproportionality for second degree murder, focuses on the lack of a specific

13:25 - intent to take a life, that lack of a specific intent to take

13:28 - a life is present as a matter of law and or second degree cases.

13:32 - But we also recognize that this court may

13:35 - issue a

13:36 - ruling that is taking into account the lack of a specific

13:40 - intent to take a life, plus, the fact, in this case, that Mr.

13:44 - Lee did not take a life that's a narrower subset of a second degree cases,

13:49 - are you're asking us to parse out the mens rea requirement.

13:53 - But we're asking to focus on the mens rea of requirement

13:57 - as the significant, most salient factor

14:01 - that leads to a disproportionality analysis from our perspective.

14:05 - Counsel question excuse me.

14:07 - The argument you're making doesn't discount that there are some felony

14:12 - murder cases that you would acknowledge are appropriate

14:16 - for, life without parole.

14:19 - But you don't want the mandatory life without parole to apply to every case.

14:23 - Is that correct?

14:24 - We're not acknowledging that life without parole is constitutional

14:29 - for any second degree murder case where most specifically.

14:32 - But you're not arguing that it's not.

14:35 - We're arguing that in this case it is not.

14:37 - As to other cases in front of the court, the court may not reach those cases,

14:41 - and the court may leave for another day.

14:43 - Whether article one, section 13 is unconstitutional with the fact pattern

14:47 - not in front of this, but I thought the gist of your argument

14:50 - was that based on our ruling in the future,

14:53 - the trial courts would be able to sift through the facts

14:59 - and decide, based on the men's rea, or lack of mens rea, of whether or not

15:04 - it's a case suitable for life without parole or just life.

15:09 - So that's not our argument,

15:11 - but that's a way that the court could resolve this case argument.

15:14 - So the I don't I don't disagree with that.

15:17 - We have a number of arguments that we like.

15:19 - Some are we like more than others.

15:21 - Maybe if I can sketch out I think there's four ways we could probably imagine more.

15:27 - But I think there's four ways that Mr.

15:29 - Lee's sentence could be struck down.

15:31 - The mandatory nature of the sentence could be struck down,

15:35 - and that would allow the re sentencing courts after a proceeding.

15:39 - Considering the facts and circumstances of the case, Mr.

15:43 - Lee's role in the offense, any mitigating evidence, prosecutor and victim

15:47 - input, etc., whether to impose life with parole or life without parole,

15:53 - how do I how we said the sentence under, the Pennsylvania Sentencing Code

15:58 - life with parole.

16:00 - How would that happen?

16:02 - We believe that would happen the same way that after

16:05 - Commonwealth the after Miller v Alabama.

16:08 - Commonwealth c bats engage in a severability analysis

16:12 - that allowed a sentencing court to impose a life with parole sentence

16:17 - at its discretion when there was no statute.

16:21 - Commanding, when the minimum sentence would be imposed

16:25 - or whether or not there would be some statutorily based minimum.

16:30 - I thought the sentencing code was designed in such a way

16:33 - that any life sentence resulted in, without parole.

16:39 - It is designed in such a way as it was.

16:42 - And so then, how do we eradicate that aspect of the code?

16:47 - So I would direct the court to this decision,

16:50 - this court's decision in Commonwealth the best, the 2007 teen version,

16:54 - in which the Commonwealth severed the

17:01 - section 6137 of

17:02 - the parole code that prohibited parole eligibility

17:05 - for those sentenced to life imprisonment if they were younger than 18.

17:09 - It also severed the requirement that a sentencing court pay its peg

17:14 - its minimum to half of the maximum, since there was no,

17:21 - half of a life sentence,

17:23 - and then, at the discretion of the re sentencing courts,

17:27 - taking into account relevant legislative statutes, did not directly apply.

17:31 - Specifically the 11 02.1, which was for cases,

17:35 - first and second degree murder committed by somebody who is younger than 18.

17:39 - That occurred after Miller v Alabama.

17:41 - The court imposed a minimum sentence after that severability analysis.

17:46 - The court also recognized in those bad decisions that the legislature

17:51 - could have intervened and created a sentencing scheme, and they did.

17:57 - They did, yes.

17:58 - And it was for the cases that,

18:03 - or the crime was committed on or after the date of military Alabama.

18:07 - Okay.

18:07 - So can I stop you just a moment?

18:09 - Justice Wecht cut off a little bit ago, and I want to give him an offer

18:12 - that happened with Justice Donahue.

18:14 - Finish your line, chief.

18:16 - I actually, I actually have a different line.

18:18 - So you may you may you may pick up my lines.

18:21 - Be my guest.

18:22 - Thank you both for the lines up, counsel.

18:25 - A moment ago, you had mentioned something.

18:29 - Consistent with your briefing about the,

18:32 - penal logical aims of deterrence and rehabilitation.

18:37 - Is the General Assembly not entitled to

18:41 - other objectives

18:43 - in their lawmaking capacity, for example, retribution?

18:48 - And, to the extent that that is a,

18:52 - that is a,

18:54 - an impulse that

18:56 - legislators are allowed to pursue.

19:00 - How are we to how are we to construe

19:02 - that in terms of this argument?

19:06 - So we think the historical evidence of the

19:10 - legitimate punishments or purposes of punishment,

19:13 - embedded within article one, section 13, where deterrence and

19:18 - rehabilitation.

19:19 - However, if this court were to include what the U.S.

19:22 - Supreme Court has recognized as two other major, legitimate

19:27 - interest retribution in incapacitation, we think it's the same result.

19:31 - Retributive theory.

19:33 - Also sometimes called just dessert theory in the jurisprudence, in

19:37 - the criminology, literature is focused

19:40 - on a proportional punishment for the offense that is at issue,

19:45 - and punishing people for the unintended consequences of their actions.

19:49 - Punishing people for felony murder convictions in Pennsylvania

19:53 - with the same punishment as those who have specific

19:56 - intent, violate its retributive principles as well.

19:59 - We brief this in the Eighth Amendment section of our brief.

20:03 - It was also touched on by the criminologists amicus curiae

20:06 - brief as well as for incapacitation.

20:09 - I think that's fairly subsumed.

20:11 - Or could be under the rehabilitative

20:13 - analysis, if somebody is rehabilitated by definition

20:17 - and they do not need to be incapacitated in order to protect the public.

20:21 - And so

20:23 - can I tease out a a comment you made?

20:26 - Am I to understand your position is that

20:29 - there should be no minimum with

20:32 - for felony murder?

20:35 - And if so many of the amicus brief shared with us,

20:39 - the the overwhelming disproportionate contact

20:44 - for those incarcerated based upon the statute as written,

20:48 - are we not treading again into difficult territory

20:52 - by having disproportionate sentencings allowing the judges to determine

20:56 - what the maximum number, the minimum?

20:57 - What if the minimum?

20:58 - Well, where 99 years to life.

21:02 - So I'm not going to pretend that

21:05 - there's not complicating factors with the remedy.

21:11 - We proposed

21:12 - the severability analysis that this court engaged in his battles

21:15 - as a way to resolve this case,

21:17 - because it's something familiar to the court and its jurisprudence.

21:21 - It is the case that the court would have options if you strike down Mr.

21:25 - Lee's sentence, including retaining jurisdiction

21:28 - in order to seek supplemental briefing on the appropriate

21:31 - remedy, consistent with a rule that this court would announce,

21:35 - including putting a ruling on hold to give the General

21:38 - Assembly a time to act, which has been done in other instances.

21:42 - There would be a minimum, and I don't believe there would be a risk

21:46 - that courts of Common Pleas would not discharge their duty

21:50 - to impose a minimum that matches somebody's individualized culpability.

21:55 - And in fact, in the remedy that we propose, individual culpable

21:59 - would still be relevant in three

22:02 - critical phases of the sentencing process.

22:05 - The first would be imposing a minimum for the second degree murder offense itself.

22:10 - If the legislature were to act in response to a ruling of this court to guide

22:16 - how that minimum would be set, that then would also be taken into account.

22:20 - But the second critical juncture where individual culpability

22:25 - would be assessed would be in imposing an aggregate sentence.

22:30 - Oftentimes, maybe all of the times, we say most

22:33 - all of the time when there's a more severe course of criminal conduct,

22:37 - there's multiple charges, multiple convictions,

22:40 - nothing in the rule that we are seeking would limit or hinder

22:44 - a sentencing court's ability to impose aggregate, consecutive stacked sentence.

22:49 - Why don't you share with us the role you believe we should make?

22:53 - We believe the rule should be that life without parole for felony murder,

22:58 - where there's no intent to take a life,

23:01 - is disproportionate to the legitimate purposes of punishment

23:05 - and unconstitutional under article one, section 13.

23:09 - Well, that's a little. That's

23:11 - that's different than the juvenile cases.

23:13 - For example,

23:14 - that was a the juvenile cases were a categorical, categorical situation.

23:18 - You're basically taking anybody who is guilty of felony murder,

23:23 - should be should not get life without parole.

23:25 - That's, that's is that a facial challenge?

23:28 - Is that an as applied challenge?

23:30 - What are you what are you advocating here.

23:33 - So it's a categorical challenge focusing on the sentencing statute.

23:38 - So it's a it's a category challenge for focusing on the same

23:41 - focusing on the entirety of the universe as the category.

23:44 - That's that's what you're focusing on.

23:46 - That's that's what say our maximal position.

23:49 - But we also recognize the court may decide there's a narrower subset

23:54 - for your client, your client voluntarily engaged in, in a, in a violent felony.

23:59 - This isn't the getaway driver situation.

24:01 - Your client voluntarily

24:03 - with with guns entered a home he shouldn't have entered into.

24:06 - Pistol. Webb.

24:06 - Somebody, happened to leave the room.

24:09 - And the surprise is you entered a room with a felony, enter a house with a felony

24:13 - to commit a burglary, and somebody dies and gets killed in the shot.

24:16 - Is your client,

24:19 - the client

24:20 - that you're saying falls into this category that we should say.

24:23 - Oh, for all of these people,

24:25 - these people that commit, that engage in violent felonies with guns,

24:29 - where you're obviously thinking if you're going to

24:31 - somebody is home with a loaded gun, somebody might die.

24:34 - You're this is the situation. We should say.

24:37 - He falls into that category and life without parole is unconstitutional

24:41 - for him.

24:42 - Yes, we believe that him not having an intent

24:45 - to take a life and not taking a life would allow such a ruling.

24:50 - A lot of the conduct you just described, if somebody did not lose

24:53 - their life, is subject to severe penalties under the law.

24:57 - If somebody did lose their life without life, without parole.

24:59 - And that's why I agree with Governor Shapiro that somebody lost their life.

25:04 - Felony murder should permit more serious consequence

25:08 - than simply punishing somebody for the underlying felony.

25:12 - As Governor Shapiro also said, mandating life without parole where there

25:15 - wasn't a specific intent to take a life, doesn't further deter and ends.

25:20 - The US Supreme Court and the Pennsylvania Supreme Court have spoken to the mismatch

25:25 - between deterrence and a crime where there's not premeditation.

25:29 - In 1970, this court stated,

25:34 - in Commonwealth Israel Myers

25:36 - v Smith, if added, deterrence is the goal.

25:39 - The felony murder rule is not the right approach.

25:42 - In 1982 and Edmond v Florida for the U.S.

25:45 - Supreme Court, they recognized for capital punishment to be an effective deterrent.

25:52 - Premeditation has to be involved in the murder.

25:56 - So we are not arguing there should not be severe consequences

26:00 - for second degree murder.

26:01 - Life with parole is a very serious penalty.

26:04 - You're not agreeing.

26:05 - You're not agreeing with the governor's amicus brief.

26:08 - It seems you're not. You wouldn't,

26:12 - you wouldn't view it as a win, so to speak.

26:15 - Here.

26:18 - If you got a ruling that said

26:20 - mandatory life without parole is unconstitutional,

26:25 - you're more ambitious than that in this in this context, right?

26:30 - We would have definitely consider it a win if Mr..

26:34 - The sentence was struck down and mandatory life without parole is unconstitutional.

26:37 - Absolutely. We agree with much in the governor's brief.

26:40 - Not everything in the governor's brief.

26:42 - But I mean you don't want the Miller Batz type approach.

26:46 - In other words, you don't want the the individualized inquiry empowering

26:51 - trial judges to decide whether this person gets life without parole.

26:57 - And this one doesn't.

27:00 - And I'm not I'm not sure,

27:04 - why you think, you've

27:08 - you've made a compelling case to go beyond that. So.

27:14 - We think that

27:17 - felony murder consistent with, say,

27:20 - the US Supreme Court's decisions in Edmond also Graham v Florida

27:23 - about non-homicide offenses which relied on Edmond

27:26 - their capital penalty jurisprudence dealing with crimes

27:29 - that don't involve a specific intent to take a life.

27:32 - Those were cases that took the penalty

27:35 - off the table altogether.

27:37 - But it is certainly the case that if the

27:41 - standard this court were to find in article one, section 13,

27:46 - permitted that life without parole

27:49 - may be constitutional in some instances for felony murder,

27:53 - then the mandatory nature would have to fall in sentencing.

27:56 - Courts would have to make a decision as to

28:00 - whether a particular offense warranted life without parole.

28:04 - Based on the standard this court would announce to apply.

28:07 - Article one, section 13.

28:08 - Currently, I thought that was going to be the gist of this argument,

28:13 - but it's not.

28:14 - But it's not council.

28:16 - You keep referring to bat, and I understand the argument

28:19 - that you're making, but this court had, a cushion in bats,

28:24 - because the legislature had already adopted,

28:30 - a sentencing code that dealt with,

28:33 - the juveniles, in these situations.

28:36 - And if you'll recall, in bat, we said to the trial courts,

28:40 - and why don't you follow

28:42 - in your sentencing scheme that which the legislature had set up?

28:46 - So Bat is really a stopgap.

28:48 - That's not what you're talking about here at all.

28:51 - I mean, you know, if this court struck down,

28:54 - this sentence, the legislature would have to do something.

28:59 - I mean, that do you not agree?

29:01 - I agree, and I think the procedural analog

29:04 - to where this case would be would actually be Miller v Alabama.

29:08 - When Miller v Alabama, was issued, the Pennsylvania legislature had not acted.

29:13 - Obviously, there was a US Supreme Court decision,

29:15 - but if there was a decision in the first instance on the constitutionality

29:20 - of the mandatory life without parole sentencing scheme, then that would

29:25 - basically put us back pretty bad.

29:26 - So don't let me lose my my place in line here to get to my line of questioning.

29:35 - What is the mens rea for this crime?

29:38 - The mens rea for this crime is having the intent

29:41 - to engage in the underlying felony. Okay.

29:45 - And how does that translate into

29:47 - being punished for the death.

29:51 - Because there.

29:52 - So there's three elements. The mens rea.

29:54 - I just said the criminal act is participating in the underlying felony

29:58 - and a death has to occur in the course of that felony that it does.

30:04 - Does a, individual have to have

30:09 - a recklessness?

30:10 - Mens rea, that is.

30:13 - You see, my problem and,

30:16 - I think the District Attorney's Association and others have suggested

30:20 - that what your problem is really with is that crime.

30:23 - I mean, because you're asking us to pass

30:27 - situations in which,

30:29 - an individual dies in the midst of the commission of a felony?

30:34 - Your client, did not was not in the getaway car.

30:40 - But this rule applies to the individual who is in the getaway car.

30:45 - This rule would apply to someone who did not know

30:48 - that the other perpetrator had a gun or a weapon, am I correct?

30:54 - Correct.

30:55 - And isn't that what is the gist of your problem?

30:59 - The latter individual said I described somebody sitting in a car

31:02 - not knowing that, his,

31:05 - accomplice had a, a, a gun and that someone,

31:10 - there was even a possibility that someone would die.

31:13 - In the context of this commission, is is going to go to prison

31:17 - for life without parole.

31:20 - Correct.

31:21 - And isn't that what you're asking,

31:25 - trial judges to have the ability

31:27 - to do to pass that type of conduct?

31:30 - Yes. We would like trial judges to be able to separate

31:33 - between levels of culpability. And that's not.

31:35 - But then that's not the statutory claim.

31:38 - It's. Yes.

31:39 - And we recognize that problem, which is one of the reasons we focused on

31:45 - the element of this

31:46 - lack of specific intent, because that flows from the statute itself.

31:51 - There are other felony murders.

31:52 - That's the problem.

31:54 - The statute presumes that the statute presumes

31:59 - that there is some mens rea, in the commission of the murder.

32:06 - Correct.

32:06 - The mens rea is imputed from the mens rea.

32:09 - What what is imputed?

32:11 - It's the emails from the underlying felony.

32:15 - Correct.

32:16 - Not the murder.

32:17 - Correct.

32:17 - And and therein lies the problem. Correct.

32:21 - One of the problems.

32:21 - Well, so so for us to say to the trial judges,

32:25 - take a look at what really happened here,

32:28 - your client, in the examples that I just gave, had a greater culpability

32:34 - than the individual who's sitting in the getaway car

32:37 - without any knowledge of, you know, a gun being present

32:41 - in the perpetration of the felony or anything like that.

32:46 - But then we aren't talking about the felony murder rule.

32:49 - We're talking about something else.

32:51 - We're talking about, a judge

32:54 - determining what the mens rea is

32:57 - for the actual commission of the murder.

33:02 - And that's not the felony murder rule.

33:04 - So I follow you. And what you're describing.

33:07 - If there would be a mens rea attached to the homicide, would essentially be

33:11 - one of the what I referred to as an aggravated felony murder

33:14 - statute that other states do have.

33:17 - But isn't that what you're talking about?

33:19 - Isn't that what you're asking

33:21 - us to, direct trial judges to do?

33:26 - Assuming we could do that without the legislature stepping in

33:28 - and fixing that problem, we're.

33:32 - There's different ways we can come to release.

33:33 - We're asking this court to make a clear recognition as

33:37 - Governor Shapiro and others have, in the briefing in this case,

33:40 - between Specif specific intent, murder and no intent.

33:44 - Correct. To commit murder.

33:46 - Correct.

33:47 - Now, when you mentioned, you know, is it recklessness

33:50 - for those perhaps, who have,

33:54 - committed the acts that led to a death?

33:57 - It could have been it also could have been involuntary

33:59 - manslaughter and involuntary manslaughter situation.

34:02 - I know hypothetical, I know real cases.

34:04 - And we can talk about that all day.

34:06 - We also know cases where it's just not going.

34:08 - It's going to be difficult to determine because the jury is not required to prove

34:13 - in some case, or to make a finding as to who even committed the murder.

34:18 - If this court were to say there's two greater risk of punishment

34:22 - because mandatory life without parole to greater risk of excessive punishment

34:27 - sweeps in so many

34:29 - people who

34:31 - role in the offense, in their criminal intent,

34:35 - was such that life without parole would not be justified.

34:39 - I think if the court could allow a man a discretionary

34:42 - sentencing scheme that, like so many other sentencing schemes in Pennsylvania,

34:49 - allows trial courts to impose this based on, an assessment

34:54 - of one's culpability and the presentations at a sentencing proceeding.

34:58 - Without that turning into a type of formal fact finding

35:02 - which triggers, which would make it an element to the offense.

35:06 - Interestingly, your client doesn't meet that definition

35:10 - of someone who was not

35:12 - plausibly, did not have an intent.

35:15 - He he had a gun, right.

35:19 - So that, I don't think, means

35:21 - he had any intent to take a life as went into the burglary

35:24 - with a gun or the robbery, which in the US Supreme Court.

35:30 - Consider that

35:31 - Edmond v Florida as to whether robberies and certain violent felonies

35:35 - are so inherently dangerous that it should justify

35:38 - in that case, capital punishment, and it would have a deterrent effect.

35:42 - And they rejected it.

35:42 - And I think that that was capital that was that was capital punishment.

35:45 - That's not

35:46 - and I thought you didn't want us to look to the United States Supreme Court.

35:49 - I thought you wanted to I still looked at the Pennsylvania Constitution.

35:51 - I want you to look at both.

35:52 - And the US Supreme Court can certainly provide guidance and a floor

35:55 - for interpreting the Pennsylvania Constitution

35:58 - when it comes to this being capital punishment.

36:00 - The analysis of deterrence and one's culpability,

36:04 - I think, still holds for the United States Supreme Court, to my knowledge,

36:08 - has not yet ruled life without parole for felony murder is unconstitutional

36:13 - under the United States Constitution, except for juveniles.

36:17 - Category.

36:18 - Is that correct?

36:20 - But there are other holdings from there relating to capital category.

36:25 - Capital punishment from their categorical jurisprudence, which includes

36:28 - capital punishment, as well as Graham and Miller that I think have a lot of

36:32 - Miller was a juvenile guidance that can be very illuminating for this.

36:35 - I want to I want to just follow up on Justice Donahue's point.

36:38 - Here I are.

36:39 - You are she gave you some facts that,

36:43 - you know, the let's talk let's talk for a second about the

36:47 - the the getaway driver, which,

36:48 - which seems to be coming up in every brief that I've read about this.

36:51 - What about the getaway driver?

36:53 - Are you are you telling me that in Pennsylvania,

36:57 - the district attorneys and juries

37:01 - are convicting mere getaway drivers who had no idea

37:06 - that a violent felony

37:07 - was about to be committed and did not participate,

37:09 - that DA's are charging them with felony murderers.

37:11 - Juries are convicting them of felony murder and sending this pure,

37:15 - innocent getaway driver to life without parole.

37:19 - There's cases where getaway drivers and lookouts have been sentenced to life

37:23 - without parole. Certainly.

37:24 - And this is a facial challenges.

37:25 - And it is your challenge.

37:27 - Your facial challenge. Our challenge is to Mr. Sentence.

37:30 - They could be sentenced to life without parole

37:33 - under the current scheme,

37:36 - the getaway driver.

37:38 - They certainly can be sentenced to life without parole. Yes.

37:40 - Our challenge is to Mr. Lee's sentence.

37:42 - So you're you're you're raising an as applied challenge.

37:44 - You're not raising a facial constitutional challenge.

37:46 - We're making a categorical analysis.

37:48 - We understand.

37:49 - Mr. counsel, I'm going to just interrupt free.

37:51 - Second, it's a it's in Pennsylvania.

37:53 - We have two types of constitutionality challenges and statutes.

37:56 - They're either facial or they're as applied

37:59 - are you raising a facial because the law is different on both.

38:02 - Are you raising a facial challenge or an as applied challenge?

38:05 - He was Supreme Court case.

38:08 - We analyze the question differently depending on

38:11 - whether it's facial or as applied. Which are you challenging?

38:13 - We're asking for a distinct analysis this court's never engaged in before

38:18 - under the state constitution. And we figure that has.

38:20 - So you can't

38:21 - you can't tell me whether you're raising a facial or an as apply a challenge.

38:24 - I think both challenges are fairly encompassed

38:27 - within the questions in the arguments presented.

38:30 - You're making a categorical challenge.

38:32 - I don't know how that is not a facial challenge.

38:35 - Okay.

38:36 - So we're making I mean, we're making

38:37 - a categorical challenge, but we also understand

38:39 - that if this court believes that life without parole

38:43 - may be constitutionally permissible in certain instances,

38:48 - there could be a narrower basis for striking down Mr.

38:52 - Lee's sentence, namely the mandatory nature in which it was imposed.

38:56 - That would still be facial.

38:57 - Yeah, because we'd be striking the mandatory

39:00 - okay, your category, your category is everybody who could be charged with, with,

39:04 - with with their felony murder, even asking us

39:07 - to consider retroactive, application.

39:10 - So it seems clearly facial we

39:13 - we recognize you

39:14 - do not have to consider retroactive on direct appeal.

39:17 - We think there's reasons to address that sooner than later.

39:21 - The attorney general's

39:22 - brief said if it is struck down, it should be addressed sooner than later.

39:25 - We also recognize that that raises challenging issues, issues.

39:28 - And and I've been brief supplemental briefing.

39:31 - If this sentence is struck down.

39:33 - But after Montgomery how how can it not be retroactive if we go there,

39:37 - if we strike down, if we strike down, life without parole is unconstitutional.

39:41 - There literally has to be a resentencing for all 1100 people

39:44 - that are currently serving life without parole sentences in Pennsylvania,

39:47 - does it not?

39:48 - Not necessarily.

39:49 - As Montgomery of Louisiana itself said,

39:53 - the remedy for Miller v Alabama did not have to be resentencing.

39:57 - It could be making, defendants parole eligible.

40:01 - So the legislature could act.

40:03 - It would be a watershed moment.

40:05 - Correct.

40:05 - If we correct question, I have excuse me,

40:11 - following your

40:11 - theory and your request of this court, share with us how that jives

40:16 - with felony three, where you have a 40 year Upton.

40:21 - Are you asking this court if we strike it down?

40:24 - In essence, someone charged with felony three

40:27 - could be hit with a more severe sentence than felony murder.

40:32 - At least that's what I'm gathering from you.

40:34 - I want you to clean that up for me.

40:36 - When you say felony three, are you referring to third degree murder?

40:39 - Yeah, I apologize after three.

40:41 - Quite all right.

40:43 - No, I think second degree murder would have a more severe penalty

40:46 - instead of a 40 year max.

40:47 - It would be a life, Max. And

40:51 - I think court.

40:52 - So where do we start? At the minimum, 40 to life.

40:55 - Since 40 is the top for murder three.

41:00 - I'm just trying to find out.

41:01 - 40 is the max for murder. Right.

41:03 - So 20 would be the minimum under the state law, right?

41:07 - It couldn't be any higher than that.

41:09 - For those who are 17 or 16

41:13 - and are guilty of second degree murder, the legislature set the minimum at 30.

41:19 - So I don't think I can tell you that courts there by should, you know,

41:22 - deviate from that is a categorical nature in setting the minimum.

41:26 - That's what the statutory law is for second degree murder.

41:30 - For those who are younger than 18, the minimum is 30.

41:33 - So we're still talking about very severe penalties.

41:37 - There is a question about what the sentencing court could impose

41:42 - if the legislature has not acted to give it guidance, and that's that's

41:48 - it's a big question because is there a way we can give

41:51 - your client relief here without rewriting the sentencing and parole code?

41:56 - There's a difference between striking things.

41:58 - We can strike things.

42:00 - Then we engage in a severability analysis.

42:03 - But what you're asking for, to me, commands us to write something.

42:08 - And that is something that belongs to the General Assembly.

42:10 - How can how can we grant relief to your client

42:13 - without rewriting the sentencing and parole codes

42:17 - the same way that relief was granted in Commonwealth setbacks,

42:21 - which was a severability analysis, and courts did have discretion

42:25 - to impose minimums.

42:26 - They were guided by 11 02.1.

42:28 - But I know many, many people who were sentenced to less

42:31 - than the 35 year maximum for first degree murder when they were resentenced,

42:35 - because courts.

42:36 - What's your client's minimum age?

42:40 - What do we think it is or what it should be?

42:44 - Yeah. Upon remand. Yeah.

42:45 - Because I mean, because the legislature hasn't set one up.

42:49 - Right? So if we were to strike this

42:53 - in your view,

42:54 - your client gets re sentence right, what's the minimum?

42:57 - I mean, we'd be making it up just as much as you'd be making it up here.

43:00 - So why don't you tell us what you think the minimum should be?

43:02 - Correct.

43:03 - We would advocate for 25 years, and the court would probably not impose

43:07 - less than 30. Would be my guess.

43:09 - But you're really arguing for the back end, not the front end.

43:12 - I mean, we have a minimum, maximum statute.

43:14 - You're just basically saying life without parole,

43:16 - without a possibility of parole is unconstitutional.

43:18 - Therefore, every single person is sentenced to life

43:21 - without parole in Pennsylvania,

43:22 - gets a hearing to determine whether or not they've served enough time.

43:26 - What are you asking us to?

43:27 - Fashion is really the question

43:29 - I think you're hearing that's being weaved throughout this.

43:32 - Well, the the problem is life without parole.

43:34 - You can't under the parole code, you can

43:36 - you are considered for parole until you've done your minimum.

43:39 - And that's then the that there's no minimum.

43:41 - I think you're arguing,

43:42 - at least in part, for us to just declare it unconstitutional.

43:47 - And then we could give the legislature 90 days or whatever to to redraft it.

43:52 - I think that would be prudent, especially given the conversation today

43:56 - and all the challenges that there would be.

43:58 - How could they redraft the sentencing code

44:01 - without re re drafting the crime?

44:05 - I understand my problem.

44:08 - I mean, you know, every time we get down to this question

44:11 - about, well, what should your client sentence be?

44:13 - The answer is it would depend on his mens rea,

44:19 - would it not?

44:20 - I mean, you know, to suggest

44:23 - that something a that that our ruling would apply retroactively

44:28 - would somehow imply a one size fits all sentence?

44:34 - And is that really true,

44:37 - given what we're dealing with,

44:40 - with the felony murder rule as it currently exists?

44:43 - That's the first question you raised.

44:46 - How could the legislature,

44:49 - engage in a remedy here?

44:51 - They can amend the parole code and they can amend the parole code

44:55 - in different ways.

44:56 - They have authority to do that.

44:57 - But how would a judge decide what the appropriate sentence is

45:01 - if there is no context in which to determine

45:05 - what the defendant's mens rea is vis-a-vis

45:10 - the actual crime for which he or she is being punished, i.e.

45:14 - the murder.

45:15 - So I think the court could

45:18 - still take into account a number of factors, even

45:22 - without an additional element of the mens, Reya and other sentencing proceedings.

45:28 - People are convicted of one or more offenses that have their mens

45:31 - rea and act as rea

45:33 - in the court has a range of punishments that are within its discretion to impose.

45:38 - We're simply arguing that life without parole, the without parole,

45:44 - must be struck down.

45:46 - Life with parole.

45:48 - That's why I made the suggestion earlier.

45:49 - But what you're essentially

45:50 - asking us to do is strike down as a face to facial challenge life without parole,

45:54 - which would require a resentencing for every single inmate.

45:58 - Right now in Pennsylvania that's serving life without parole.

46:00 - Because what you're really asking us to do is not engage in a factual analysis.

46:04 - It's to give it to the sentencing judge some discretion to hear mitigation,

46:08 - to hear the facts and circumstances of the case,

46:10 - to see what participation, if any, that this particular individual

46:13 - who is serving life without parole participated in the actual case itself.

46:17 - In other words, the getaway driver, as Justice Bronson just mentioned,

46:20 - the person who goes in with a gun, but it's not necessarily

46:23 - the person that fires that the fatal bullet.

46:26 - Correct.

46:27 - That could be one way to respond.

46:30 - The legislature could amend the parole code and say,

46:33 - anybody that has been in X number of years is parole eligible.

46:37 - They could also say somebody who has been convicted of second degree murder.

46:43 - And it was this underlying felony.

46:45 - They said this particular year, number for a minimum, a different underlying

46:49 - felony, they set a different year for minimum eligibility.

46:54 - They would have options in that regard.

46:56 - The legislature been lobbied to rewrite this statute.

47:01 - They have, and then they have not taken that up.

47:04 - The I also in fairness, they have had hearings.

47:09 - There is a bill I think it's in the House.

47:11 - It's not like it's that's not like they've rejected it.

47:14 - It's under consideration.

47:16 - I mean, there's been a hearing in the House Judiciary Committee,

47:20 - but for years and years and years they have not had any full votes.

47:23 - They have not passed.

47:24 - And this court has the role, of course,

47:26 - in the constitutional questions in front of it.

47:28 - Without speculating if there's a violation here,

47:32 - the legislature may solve in the future.

47:34 - But as to the concerns, though, about if any rule is issued,

47:38 - if it would necessarily be retroactive, would that unleash the need

47:43 - for a thousand resentencing proceedings in Pennsylvania?

47:49 - I do want to

47:51 - make clear that if that is the consequence,

47:55 - if those sorts of, to use the words of this court

47:58 - from Commonwealth, the wolf, in discussing the,

48:02 - what happened after the US Supreme Court's Aileen Rowling,

48:05 - if these sorts of unavoidable and widescale consequences are required,

48:09 - then that is necessary to enforce constitutional rights.

48:13 - The Pennsylvania has had a recent resounding,

48:17 - unequivocal success with resentencing

48:20 - over 500 former juvenile lifers.

48:24 - One study it's been cited in many of the briefs found

48:27 - 1% recidivism rate.

48:30 - That's just unheard of when it comes to other criminal offenses.

48:34 - So again, you keep going back to the juvenile lifers.

48:36 - This is not these are not juveniles. We're talking about.

48:39 - Let's let's again, I want to go back to this.

48:41 - Let's assume you're right.

48:42 - Let's assume let's assume we believe that facially facially it's unconstitutional.

48:50 - The remedy

48:51 - you concede is not that all these people get out of a prison.

48:54 - Right.

48:55 - You would suggest it has to be some form of resentencing

49:00 - unless the legislature amends the parole code. Yes.

49:04 - Okay, so but in the resentencing, I'm trying to understand.

49:08 - Let's assume there's no action by the General Assembly, because

49:11 - usually when we ask them to, they take their time.

49:16 - What can we do as a court to give relief?

49:20 - Because I asked you about are we to say, as a matter of constitutional law,

49:26 - the because in order to be eligible

49:28 - for parole, you need to meet your minimum, right?

49:30 - Correct. Okay.

49:30 - So as a matter of constitutional law, does this court have the power to say

49:34 - from here on out until the general Assembly amends the statute?

49:37 - Felony murder is a has a mandatory minimum of 25 years to life.

49:43 - Do we have authority to do that?

49:45 - Under your power to create rules to enforce constitutional rights?

49:49 - I believe you would have the authority, but I'm not familiar.

49:52 - Is it being exercised in that particular way within Pennsylvania?

49:56 - But I'm also not aware of any case where this court

50:00 - has used article one, section 13 at all,

50:03 - let alone to strike down a sentence and to create a remedy for that.

50:07 - But I think you have the power to create

50:08 - constitutional to, to to specify a minimum number of years

50:13 - for us to sit here and

50:16 - I hate to use the word, but to basically legislate a minimum term,

50:21 - if it's a no, you just ask me what the court has the power to do.

50:24 - I'm trying to figure out

50:25 - what we can do to give your client relief if your client wins, right.

50:28 - I think you could do that.

50:30 - You think we could also say we could also strike,

50:34 - keep, keep life because it's two statutes.

50:37 - It's life.

50:39 - And we could also amend the parole code to basically say,

50:43 - because right now the parole code says

50:44 - you're eligible at your minimum and life does not have a minimum.

50:47 - We could blue line and add language there that says,

50:52 - unless you're serving a life sentence for felony murder,

50:56 - in which case you are immediately eligible for parole hearing,

50:59 - we could we could add that language to the parole code to.

51:02 - I don't

51:03 - think you could add that language in for a different reason,

51:06 - because that sort of immediate eligibility for everybody would not be preserving

51:11 - as much of the legislative statutes, intent,

51:16 - in order to remedy the constitutional violation that would be going way beyond.

51:20 - So then, unless there's a third option, our only option is for this court

51:24 - to set a mandatory minimum for felony murder.

51:27 - That is an option.

51:29 - Well, okay.

51:30 - So that's an option that you said it was good.

51:32 - Amending the parole code is not an option.

51:34 - What's the third option?

51:39 - Wait, I gave you two options.

51:41 - One was for this court to legislate a mandatory minimum.

51:44 - You said we could do that.

51:46 - You could create a rule to enforce a constitutional right.

51:49 - I would not use the L word

51:52 - that we could create, not use the R word.

51:54 - I don't think we can do a rule.

51:56 - We could create a mandatory minimum.

51:58 - I could legislate rule, whatever.

51:59 - But you think we can some other word.

52:01 - I don't think you ever have, but I think it's possible we can't.

52:04 - However, according to you, rewrite the parole code to say

52:09 - people serving life life for felony murder are eligible for parole.

52:14 - We can't do that.

52:16 - I think that you would have to attach a number of years in order

52:20 - to preserve as much of the legislature's intent as is constitutional.

52:24 - That's more jarring with the statute, right?

52:27 - It's no different from the first example as to what a minimum would be before

52:31 - somebody is parole eligible in order to comply with what would be

52:34 - a rule under a constitutional ruling under article one, section 13.

52:39 - Other than those two,

52:40 - is there a third option for us to get relief, give you relief?

52:44 - Yeah.

52:44 - Resentencing consistent with the court's decision in bats for Mr.

52:48 - Lee, where do we get the law arguing for us to find it unconstitutional?

52:52 - And in which event we would send it back to the

52:56 - we would hold the ruling for a certain number of days,

53:00 - the effective date until the legislature acted,

53:03 - or we would simply declare it constitutional and let the chip

53:06 - unconstitutional and let the chips fall where they may.

53:10 - I don't see any options for us to rewrite something the legislature has written.

53:16 - We don't do that.

53:17 - I agree that you don't do that.

53:19 - That's why we do not advocate for that.

53:20 - As a question of the court's constitutional powers when engaging in,

53:26 - the establishment of constitutional rights.

53:29 - That's it. That's the problem, Council, because,

53:34 - Magic doesn't

53:35 - like if we strike it down and send it back.

53:38 - If your argument isn't that they're all

53:41 - instantly eligible for parole, the trial courts need to know what to do.

53:45 - There's no minimum in the parole.

53:46 - I mean, that's where do we.

53:49 - Where do we make up a number? That's.

53:51 - I thought, what? Justice Bronson was getting at it.

53:53 - Right? No. So I, I follow.

53:56 - So I think that what Chief Justice Todd just said about our position

54:01 - that it can be struck down,

54:03 - you can maintain jurisdiction, even request supplemental briefing

54:06 - and give the legislature time

54:08 - to act in the legislature could then provide that guidance in that minimum.

54:12 - And if they don't and if they don't, then

54:14 - I believe we're back to bats.

54:17 - Severability unless this court were to use a power under article one, section 13,

54:23 - that has not been used to state that life without parole

54:27 - for felony murder is unconstitutional.

54:29 - And in order to remedy that, individuals sentenced to life

54:33 - without parole for felony murder must become parole eligible after

54:38 - 25 years.

54:39 - That that's the question.

54:40 - Because we had something in bats.

54:42 - We had had we had something.

54:44 - That's that's what I'm getting at.

54:46 - Where do we get that number? The moat.

54:49 - Where do we draw the line?

54:50 - Right. The most?

54:53 - I think proximate sentencing statute

54:57 - is the sentence for life without parole, for felony murder.

55:00 - For those who were younger than 18.

55:05 - That's the most proximate to this case.

55:08 - There's also different underlying felonies that are involved.

55:12 - And after we take it, you're saying is we should take the legislature's intent

55:15 - to, extend grace to juveniles and apply it to everybody.

55:21 - That was not what we said.

55:23 - This was that

55:25 - asking where to find a minimum.

55:27 - It makes sense to look at the only other instance where a second

55:31 - degree murder has a punishment attached to it in the statutory code.

55:38 - All right.

55:38 - Are there other questions for staff?

55:41 - Questions for Mr.

55:42 - Groves?

55:45 - I think we understand your position.

55:47 - Thank you, sir.

55:48 - Thank you.

55:48 - We'll hear from, Mr.

55:51 - McCarthy for the Commonwealth.

56:05 - Chief Justice Todd, members of the court.

56:07 - May it please the court.

56:08 - Kevin McCarthy, assistant district attorney, Allegheny County, on behalf

56:11 - of the Commonwealth.

56:15 - Trust.

56:15 - Chief Justice Todd Justice Donohue, you have demonstrated

56:19 - my own problem in addressing the arguments of counsel.

56:23 - I can't seem to find exactly where appellant is going and what he wants.

56:29 - As I said in my brief, this argument is really a challenge

56:33 - to the felony murder doctrine, period.

56:36 - They don't like the sentence, which is unique to felony murder,

56:40 - and instead they want to say that the sentence is unconstitutional

56:44 - as opposed to the crime is unconscious, or rather, the death.

56:48 - And that's the point.

56:49 - Punishments can't be cruel.

56:51 - So that's what we're asked to decide.

56:53 - I mean, they're saying mandatory life

56:56 - without parole violates the cruel punishments.

57:00 - Why isn't that justiciable?

57:02 - Well, I do believe it is.

57:03 - I'm just saying my consternation and struggles

57:06 - with trying to respond to arguments.

57:07 - It seems as though I'm.

57:09 - I'm, grabbing in a phantom.

57:11 - Well, it's like the arguments are incongruent.

57:14 - I mean, if there is a problem

57:16 - with the manner in which someone is punished,

57:21 - which has nothing to do with that individual's actual culpability

57:25 - for the act for which you're being punished, that would I agree with

57:30 - that, would make the sentence for that unconstitutional.

57:33 - I mean, we're see, I would,

57:36 - but of course, is this members of the court have pointed out this morning,

57:41 - is it a facial

57:41 - challenge or is it a, a, as applied challenge?

57:45 - I think we've determined it's a facial chip.

57:47 - I thought it was to.

57:48 - Oh, and I'm prepared to respond to that.

57:51 - That as applied.

57:53 - It is not unconstitutional.

57:57 - Appellant has many sympathies

58:00 - and and mitigating factors on his side.

58:04 - The Commonwealth has history in this court's precedent on its side.

58:08 - Felony murder doctrine was adopted by the Pennsylvania legislature

58:13 - in 1794, four years after it enacted ratified

58:18 - the first constitution, including, the prohibition against cruel punishments.

58:23 - But nobody does.

58:24 - Sorry to belabor this, Mr.

58:25 - McCarthy, but I don't I shouldn't say nobody.

58:29 - For present purposes, we don't need to question the felony murder doctrine.

58:34 - The question is, I thought whether mandatory life

58:37 - without parole on felony murder is constitutional.

58:40 - And so that's the.

58:42 - That seems to me the issue, or at least an issue here

58:46 - without without troubling the felony murder doctrine,

58:50 - the question of whether the the judge were being required,

58:54 - being required upon that verdict is sentenced to life without parole.

58:58 - Well, that's my point, Your Honor.

59:00 - The felony murder.

59:01 - Doc, the sentence for felony murder was mandatory since its inception.

59:06 - And in 1794, it was death.

59:08 - And that was amended in in the 1925 to be either life or death

59:14 - and amended yet again in 1974 just to be life without parole mandatory.

59:19 - And this court has repeatedly found that that was an appropriate exercise

59:25 - by the legislature to punish someone who is responsible,

59:30 - who has the mens rea to engage in the underlying violent felony.

59:34 - There's a problem right there.

59:36 - That's the mens rea to engage in the underlying felony.

59:40 - That is not where these defendants

59:43 - are being punished for their being punished for a murder.

59:48 - And and therein

59:49 - lies the issue with whether or not that is cruel

59:53 - to punish someone for an act,

59:58 - 898 where no, intent or recklessness

01:00 - 05.602 or any other level of mens rea has been established.

01:00 - 08.972 That's the argument for why it is cruel.

01:00 - 14.611 Well, why don't we have a general rule in this Commonwealth

01:00 - 18.181 that in order to punish someone, there has to be mens rea? Yes.

01:00 - 18.915 Okay.

01:00 - 22.919 And we don't have a mens rea a for the act

01:00 - 26.389 for which these defendants are being punished.

01:00 - 29.926 Well, it has been the law of Pennsylvania.

01:00 - 34.063 The legislature imposed or General Assembly imposed it again all along that

01:00 - 37.333 you are being punished for participating

01:00 - 40.336 in a violent crime which was foreseeable.

01:00 - 41.371 There you go.

01:00 - 43.506 I mean, what about what about the,

01:00 - 47.510 infamous now getaway driver?

01:00 - 50.213 Well, what about what

01:00 - 53.216 about the governor's not.

01:00 - 54.217 But I got him, right.

01:00 - 55.752 This is a facial challenge.

01:00 - 58.955 Let's let's talk about somebody who is not this defendant.

01:00 - 04.394 Let's talk to talk about someone to which this crime attaches,

01:01 - 08.998 which is the getaway driver, the legislature or the General Assembly

01:01 - 13.870 recognized that violent felonies, participation in a violent felony

01:01 - 18.241 is dangerous conduct, that innocent victims or lives are lost,

01:01 - 21.844 and that we must deter that kind of conduct.

01:01 - 24.781 And there is a severe penalty applied.

01:01 - 27.450 And as far

01:01 - 31.154 as justice done, if there is a punishment for the felony

01:01 - 34.857 for which staff are taking yes, for murder.

01:01 - 37.860 So you're asking us to double that punishment?

01:01 - 42.598 The General Assembly has it's not that it's double dipping,

01:01 - 45.702 although they are often sentenced for the underlying felony to.

01:01 - 49.939 Yeah, but they're sentence for life without parole for agreeing

01:01 - 53.509 agreeing to commit the crime, participating in accessory liability.

01:01 - 54.911 It is absolutely.

01:01 - 57.914 Accomplice liability, which is what we noted in our brief,

01:01 - 00.183 accomplice liability.

01:02 - 03.820 Each and every member who participates is responsible

01:02 - 06.823 to the same degree and can be punished to the same degree.

01:02 - 10.860 And that's for the crime in which they intended to participate.

01:02 - 12.361 Arguably.

01:02 - 12.995 Correct.

01:02 - 16.132 Okay, well, then we're back to we impute.

01:02 - 19.368 And that's this, this court's,

01:02 - 24.173 language that we impute to the least culpable

01:02 - 27.176 of the Confederate Confederates.

01:02 - 29.679 The theory these are naturally foreseeable costs.

01:02 - 32.281 Yes, yes, Your honor, the problem that so?

01:02 - 37.053 So I think the discussion, though, is it's an the question is, can this argument,

01:02 - 41.491 if we adopt it, will the felony murder

01:02 - 44.927 charge even survive?

01:02 - 48.598 Because if we say if we say in order for you to be,

01:02 - 53.703 held accountable for the crime of felony murder, constitutionally you have had

01:02 - 56.639 you had to have some sort of an intent to kill,

01:02 - 00.610 then you would need felony murder, current have manslaughter or

01:03 - 04.147 any other form of homicide because there was an actual intent or recklessness.

01:03 - 05.314 There's another charge.

01:03 - 07.717 But if we go along the lines

01:03 - 08.351 and start

01:03 - 12.255 looking at whether it's cruel and unusual because there was no intent to kill,

01:03 - 15.258 then that destroys felony murder on our all the way.

01:03 - 19.629 But that's the argument, isn't it, that that's the argument, of the appellant

01:03 - 20.463 in this case.

01:03 - 23.833 I mean, that's why there's a facial challenge.

01:03 - 27.804 It goes to the fact that this is someone

01:03 - 32.008 who did not kill and did not intend to kill.

01:03 - 38.281 I don't know how you I don't know how you wrap that in a different package

01:03 - 43.352 other than you are attacking the, definition of the crime itself.

01:03 - 47.056 And particularly when we start talking about,

01:03 - 51.360 individualized sentencing for individuals in this circumstance,

01:03 - 55.031 I don't know how you do that without looking at the mens rea,

01:03 - 58.067 for the commission of the act for which

01:03 - 01.070 he or she is going to be punished, which is the murder.

01:04 - 04.240 I mean, that's why I think it's part and parcel,

01:04 - 07.143 of this challenge that,

01:04 - 12.548 has, is setting before us is how you deal with the definition

01:04 - 16.586 of this crime in terms of the punishment that's being doled out.

01:04 - 21.624 I've thought throughout

01:04 - 24.794 this whole process, we're always talking about individualized assessment

01:04 - 29.232 and personal responsibility, and that's always a question of sentencing.

01:04 - 30.032 Correct.

01:04 - 34.570 So if we've if the Commonwealth has established the elements of the offense

01:04 - 38.774 as defined by the General Assembly, then we've proven the crime.

01:04 - 40.610 Now what shall his sentence be?

01:04 - 45.081 And in this case, the legislature has decided that the

01:04 - 49.385 deterrent effect of life without parole for to people

01:04 - 54.257 who are engaging in violent conduct to deter that, because this is a natural

01:04 - 59.462 and uncommon outcome from a home invasion involving robbery and rape.

01:04 - 03.032 So that's exactly what the legislature was punishing.

01:05 - 06.302 And why does a heightened and very, very heightened?

01:05 - 09.572 Because it's without the possibility of parole.

01:05 - 12.308 But of course, that doesn't end the question,

01:05 - 17.013 because the sympathetic the truly true wheelman.

01:05 - 18.214 And I have them right here.

01:05 - 20.683 We oh, man, I like that.

01:05 - 21.817 That's better than getaway.

01:05 - 24.320 Better than the getaway driver, right.

01:05 - 27.290 Those those mitigating factors are going to be presented

01:05 - 30.726 to instead of the parole board, the governor's pardons board.

01:05 - 34.297 There's the our Constitution provides for executive.

01:05 - 35.731 And how often does that happen?

01:05 - 39.802 Well, it's happened more recently than before is the freeze.

01:05 - 42.872 But that's a vagrancy of the administration, is it not?

01:05 - 44.941 It is not so much of vagrants.

01:05 - 47.510 I should yes, I'll agree with that statement.

01:05 - 50.179 There were several administrations where they had almost not known,

01:05 - 53.549 but that hasn't been the case in the last two administrations.

01:05 - 56.686 But that's not how you deal with the constitutional challenge.

01:05 - 59.021 And I understand the problem here.

01:05 - 04.260 I think you you can you can see, the, the struggle involved.

01:06 - 07.263 But, that doesn't

01:06 - 10.466 it doesn't change the basic dynamic here,

01:06 - 14.737 which is individuals are being punished for a crime

01:06 - 19.108 for which no level of man's rea has been established

01:06 - 24.513 and which is, which is truly, contrary to,

01:06 - 27.817 anything that, I can count

01:06 - 30.820 is fair in a sentencing scheme.

01:06 - 33.889 Well, you would say that imputing

01:06 - 36.993 it is the same as demonstrating a.

01:06 - 37.860 Correct.

01:06 - 40.663 And that's what this court has said time and again.

01:06 - 44.000 Well, that's the mens rea of an accomplice liability theory generally.

01:06 - 44.533 Right.

01:06 - 47.303 But specifically is the second degree murder to my brief.

01:06 - 47.970 Right.

01:06 - 50.940 But, one thing I didn't understand that you said a moment ago is,

01:06 - 55.011 that you you seemed to indicate you were calling

01:06 - 59.582 for individualized assessment, and that seems to be the opposite

01:06 - 03.285 of a categorical sentence for a second degree murder conviction.

01:07 - 06.622 So why wouldn't,

01:07 - 11.727 why wouldn't a a determination that,

01:07 - 16.365 man, that that life without parole is still available,

01:07 - 19.402 but it can't be mandatory, but

01:07 - 23.773 must be the product of an individualized determination, putting aside

01:07 - 27.043 the administrative problems of the minimum that we didn't get to with you yet.

01:07 - 31.680 But putting that aside for a moment, why would that resolve the matter?

01:07 - 34.750 Since you you called for an I saw it a moment ago.

01:07 - 37.119 You called for an individualized adjudication.

01:07 - 39.722 I didn't call for your honor. I agreed with justice.

01:07 - 42.525 I it's the purpose of sentencing.

01:07 - 44.093 Its purpose. But.

01:07 - 45.327 But it doesn't happen.

01:07 - 46.095 But that's my point.

01:07 - 48.764 But it doesn't happen in these cases. Right.

01:07 - 51.700 Once there's that, once there's the verdict.

01:07 - 52.968 It isn't individualized.

01:07 - 53.769 That's the point.

01:07 - 56.338 Well, as a constitutional matter,

01:07 - 59.275 we have ratified and placed in our Constitution

01:07 - 01.911 the power of the governor of executive clemency.

01:08 - 06.916 Which supplements does it replace but supplements individualized sentence.

01:08 - 10.820 But that's but that's not again that's not an look.

01:08 - 13.689 It may be constitutional end of story.

01:08 - 17.526 But if it's unconstitutional it's not an answer to say the governor can

01:08 - 20.296 pardon that. I mean, you don't seriously mean.

01:08 - 21.330 No, no, I don't do that.

01:08 - 25.401 I do not mean to suggest it simply because that exist

01:08 - 29.705 the statute must be must be unconstitutional

01:08 - 32.675 because it doesn't include it within the sentencing.

01:08 - 36.078 It the fact that stands separately ancillary to,

01:08 - 39.482 counsel.

01:08 - 40.549 Let me ask you a question.

01:08 - 41.884 You've been at this for a long time.

01:08 - 44.220 Just put on another hat for a moment.

01:08 - 47.223 If this court were to strike down,

01:08 - 50.493 this sentence is unconstitutional.

01:08 - 53.462 What would your suggestion be for,

01:08 - 56.432 the court's option in terms of,

01:08 - 01.470 a remedy, do we do nothing and say

01:09 - 04.440 we're going to give the legislature six months?

01:09 - 11.013 To, you know, devise another, paradigm for these situations or what would you

01:09 - 14.950 what would you see as a plausible outcome of that kind of ruling?

01:09 - 18.554 And without any prejudice to the fact that I know you disagree with it?

01:09 - 22.892 Yeah, I, I believe that as has been mentioned by several of Your honors,

01:09 - 27.763 you should not be engaging in the kind of negotiation

01:09 - 30.766 that we could do if we were the Judiciary Committee of the Senate

01:09 - 34.103 and barter as to what the minimum should be.

01:09 - 37.306 I think it would have to be what you just suggested.

01:09 - 40.409 I think that's the only remedy that's available to this court at this time

01:09 - 44.680 is if you find it unconstitutional, then Your Honor is correct.

01:09 - 48.350 It has retroactive application and everyone has to be resentenced.

01:09 - 50.352 And what's the minimum?

01:09 - 52.521 What we're going to resentenced them to? What?

01:09 - 54.390 We're only saying they're eligible for parole.

01:09 - 58.727 But when that's a legislative determination,

01:09 - 00.829 as Your Honor wrote in Hairston,

01:10 - 04.934 this court defers to the general Assembly in these kinds of matters.

01:10 - 08.037 And what would be done that it's actually

01:10 - 13.108 when we have declared, for instance, the Megan's Law to be unconstitutional

01:10 - 17.680 and given the legislature a period of time to remedy it, they do it.

01:10 - 19.048 They know how to do it.

01:10 - 21.150 Yes, they have, they have.

01:10 - 23.152 What if they don't?

01:10 - 26.155 I mean, what's that's what's the.

01:10 - 28.958 I'm not as optimistic as the chief is.

01:10 - 29.758 I mean, what

01:10 - 33.729 what what happens if the general I mean, the General Assembly can't reach

01:10 - 37.633 some kind of bipartisan agreement and get it through two houses?

01:10 - 40.903 There's not a lot of legislative days available over the next over the next

01:10 - 44.073 six months or three months out of it is,

01:10 - 48.244 I suppose the governor could call him back in for a special session.

01:10 - 51.780 I don't know, but but let's assume at the end of the day, it doesn't happen.

01:10 - 54.483 What what what do we what power do we have?

01:10 - 57.152 Oh, strike the statute that

01:10 - 01.090 I imagine which is which puts which then puts it

01:11 - 04.293 truly puts the pressure on them to address the problem.

01:11 - 07.029 I, I see that as a possible outcome. But,

01:11 - 10.866 to your point, you just made,

01:11 - 13.802 you know, they have an amicus brief filed by the governor

01:11 - 15.638 of Pennsylvania supporting their position.

01:11 - 19.041 I find it hard to believe that if this were put back in the legislature

01:11 - 22.811 and the governor would to take the reins in this, it can't be resolved.

01:11 - 26.282 I could easily I don't think you're you're you're from Pittsburgh, right?

01:11 - 29.018 Yeah. I'm on Harrisburg. I'm I'm from Harrisburg.

01:11 - 32.021 Fair, fair.

01:11 - 34.156 But but I,

01:11 - 37.159 I think it's the easiest legislative,

01:11 - 41.997 fix if the General Assembly so desired would be to amend

01:11 - 47.336 the jurisdiction of the parole board to give jurisdiction over persons serving,

01:11 - 50.739 second degree murder convictions, that they would be eligible

01:11 - 54.910 at a term of pick your number, 25, 40, what have you.

01:11 - 58.981 But that, again, is a matter for the legislature.

01:11 - 01.817 It's almost like the Megan's Law registry changes that happened

01:12 - 04.386 recently is the idea that if you if you've been on the register

01:12 - 07.456 for so many years, you can petition to come off of it.

01:12 - 07.956 Yeah.

01:12 - 11.894 And that seems to be like an even the easiest fix if you've been serving life

01:12 - 16.198 without parole for X number of years, you're parole eligible.

01:12 - 19.201 And that that wouldn't necessarily require resentencing.

01:12 - 21.003 And it would seem to be a great legislative fix.

01:12 - 22.738 I just don't know how we could come up with a number.

01:12 - 23.639 I don't believe you can,

01:12 - 26.709 but I think it is the best legislative fix because that provides

01:12 - 30.079 what I've already mentioned before individualized assessment.

01:12 - 33.082 If you have those sympathetic mitigating factors

01:12 - 36.819 to say, I should not spend the rest of my life in prison or aggravating

01:12 - 39.455 or aggravating factors as presented by the Commonwealth

01:12 - 41.557 of Recidivists completely different than you want to

01:12 - 45.227 treat a guy that comes out of the box and gets, you know, an 18 felony murder.

01:12 - 46.695 It's his first conviction.

01:12 - 49.498 I mean, this all this does is really allow individualized sentencing

01:12 - 50.265 that you're talking about

01:12 - 53.702 allows resentencing for the trial judge to take a look at the individual,

01:12 - 57.206 his or her participation in the actual underlying crime,

01:12 - 00.409 as well as the prior history or lack thereof.

01:13 - 04.279 I think you said that the trial judge, I meant the parole board.

01:13 - 05.180 Parole board?

01:13 - 05.881 If we were to

01:13 - 08.917 if you were to strike down the statute and everyone needs to be resentenced,

01:13 - 09.952 then yes.

01:13 - 12.688 And as you pointed out yourself, justice McCaffery,

01:13 - 15.791 we're not talking about just going in and having a sentencing conference.

01:13 - 17.659 We're talking about having many trials.

01:13 - 20.562 We're going to present all the evidence, both mitigating and aggravating

01:13 - 24.633 factors, etc., to prove that this is not just the wheel man.

01:13 - 30.072 This is someone who engaged in violent conduct as a part of the corrupt conduct

01:13 - 33.342 that would go to their mens rea, it would go to the mens rea.

01:13 - 37.045 I mean, we can't we keep getting back to what this statute,

01:13 - 40.482 the felony murder statute, does not require.

01:13 - 42.851 And that's what it does not require.

01:13 - 46.422 That determination of what the defendant intended

01:13 - 48.724 vis-a-vis the commission of the murder.

01:13 - 51.627 Well, or was it recklessness?

01:13 - 52.461 I mean, there are.

01:13 - 57.766 And you and I agree that I mean, generally speaking, if there is no designated mens

01:13 - 00.903 rea in a crime, we at least apply a recklessness standard.

01:14 - 02.070 At least that's the form.

01:14 - 03.272 At least it's the fallback.

01:14 - 06.108 At least that doesn't even happen here.

01:14 - 07.443 That doesn't even happen here.

01:14 - 11.380 So I mean, this notion of going back for individualized sentencing,

01:14 - 12.781 from my perspective,

01:14 - 16.852 you can call it mitigating circumstances, your aggravating circumstances.

01:14 - 20.222 From my point of view, consistent with our sentencing standards,

01:14 - 23.559 you have to determine what the defendant had

01:14 - 26.662 in mind vis-a-vis the commission of that murder.

01:14 - 28.030 I agree with you.

01:14 - 28.630 With your honor, to

01:14 - 32.267 the extent that that goes to finding whether they're guilty of the crime.

01:14 - 37.206 Counsel, do I understand that you are against a retroactive application?

01:14 - 41.343 Should we find it unconstitutional because it requires judges to work?

01:14 - 43.378 No, no,

01:14 - 46.482 Your Honor, no, that is not my point.

01:14 - 49.451 Boy, that's a loaded question.

01:14 - 50.519 That is not my point.

01:14 - 52.754 You always have the trial judge. I think that's our job.

01:14 - 54.456 I've never heard a judge campaign

01:14 - 57.459 for the job by saying, I don't want to take a case.

01:14 - 00.162 I agree with that point.

01:15 - 02.731 I require the legislators to work.

01:15 - 04.299 Yes, may require them to work.

01:15 - 06.869 And Mr. McCarthy, at that point, I think it's intriguing.

01:15 - 08.370 So you've got the front end sentencing.

01:15 - 11.707 I, I'm a little concerned about the idea of having

01:15 - 14.710 a whole slew of people resentenced.

01:15 - 17.813 I, I'm intrigued by the idea of saying that the

01:15 - 21.817 the parole code has to be remedied in some way, in the sense that

01:15 - 25.754 a certain number of, of these people who are serving or have served a minimum

01:15 - 27.956 time, sort of have legislatures handled sauna,

01:15 - 31.960 are eligible to be considered for parole.

01:15 - 35.931 What if we what if we gave the legislature again, assuming

01:15 - 39.668 assuming that the appellant wins here, what if we gave the legislature

01:15 - 42.671 a specific time to figure out if it can,

01:15 - 45.874 what that would look like in terms of the number of years,

01:15 - 48.844 you would have had to have been serving the sentence before you're eligible.

01:15 - 50.579 And if they don't, we just say

01:15 - 53.582 everybody who's serving is eligible and we put it all on the parole board,

01:15 - 55.183 but you can't do that

01:15 - 59.121 because somebody could have been convicted five years ago for felony murder.

01:15 - 01.723 And if we're going to start it right. But that's the stick.

01:16 - 03.292 That's the stick to the General Assembly.

01:16 - 06.562 And that's to stick to the parole board is to say it's to say,

01:16 - 10.499 you guys, you guys, you guys legislate and figure out a certain number of years.

01:16 - 13.569 And if you don't constitutionally, the only remedy we can give is

01:16 - 15.003 everybody has to get it.

01:16 - 15.671 That's now.

01:16 - 17.472 Now they'll they'll deny the five year,

01:16 - 19.174 they'll deny the ten year or something like that.

01:16 - 22.477 But then it's on the parole board to, to figure it all out.

01:16 - 23.912 How's how's that?

01:16 - 27.349 And isn't that better than sending everybody back for resentencing?

01:16 - 29.751 Yes, yes it is.

01:16 - 32.554 And to my to your point, Justice Daugherty,

01:16 - 34.856 having

01:16 - 38.894 resentencing hearings, my point was that resentencing hearings

01:16 - 40.729 are not simply conferences

01:16 - 44.066 in agreeing and discussing how what the sentence should be is in

01:16 - 47.903 the in after there's just been a trial and all the evidence has been heard.

01:16 - 51.239 We're talking about cases that have been sitting for 20 or 30 or 40 years.

01:16 - 54.376 We're going to go in front of judges who've never heard of this defendant

01:16 - 56.612 or know anything about it, and that puts it.

01:16 - 58.013 That happens every day.

01:16 - 58.347 Yeah.

01:16 - 00.949 It's not that people come before us that we don't know who they are.

01:17 - 03.552 When I was a trial judge, I never knew the defendants,

01:17 - 06.722 but we presented the the case to you directly.

01:17 - 09.391 My point is, these are judges who are now come to the case

01:17 - 12.427 that we still present the case file because individualized sentencing,

01:17 - 16.198 an individual require individualized considerations.

01:17 - 19.901 The parole board only takes a look at the adjustment while somebody is in prison,

01:17 - 23.105 and whether or not the parole board thinks he or she should be paroled.

01:17 - 24.906 Individualized sentencing is required.

01:17 - 28.477 An individualized resentencing hearing where you can take a look at the factors

01:17 - 32.180 we just talked about either participation or lack thereof in the crime,

01:17 - 33.181 their history.

01:17 - 35.884 I mean, one of the I mean, Justice Daugherty nine justice work.

01:17 - 37.252 We're all trial judges.

01:17 - 41.123 We sentence individuals based upon who they were, based upon a lot of other

01:17 - 44.226 considerations, mitigation factors and aggravating factors.

01:17 - 46.762 Isn't that a more appropriate sentence?

01:17 - 49.765 If we were to strike them, this is unconstitutional.

01:17 - 53.802 Yes, but that's exactly what the the pardons board does.

01:17 - 56.204 They don't just look at sentence.

01:17 - 59.041 They're not just talking about pardons that would be based

01:17 - 02.044 upon the politics, not the fairness aspect.

01:18 - 07.082 Could we go back to amending the parole code if that were the option,

01:18 - 12.421 that if we sent it to the legislature, gave them so many days to fix this,

01:18 - 17.092 and that was the option they chose, what would exactly have to be amended?

01:18 - 22.097 Just the, years of sentence to be served before you're eligible.

01:18 - 25.400 Well, the way the statute, more than that, I think it's

01:18 - 28.937 probably just that it's the jurisdiction of the parole board.

01:18 - 31.940 The way it's phrased is that they have no jurisdiction over

01:18 - 34.843 anyone serving a sentence of life without parole.

01:18 - 38.380 So presumably the new statute would read

01:18 - 41.750 that they have jurisdiction over those serving life without parole

01:18 - 45.020 because of a sentence of second degree murder,

01:18 - 51.393 which then gets into, all of the specifics as to the elements such as the elements

01:18 - 55.363 and the way the crime occurred and mitigating and aggravating factors.

01:18 - 59.101 And and so while the parole board generally does

01:18 - 02.871 not apply, that I would argue that it should.

01:19 - 05.640 That's not just how

01:19 - 09.511 they're adjusting in prison, but to the extent

01:19 - 13.348 that they were less culpable in the underlying crime.

01:19 - 15.016 But that's not what they do.

01:19 - 16.752 I mean, that's that's not what they do.

01:19 - 21.123 They look at the course of the defendant in prison.

01:19 - 25.260 No, that's part of what they do, though they have sometimes the victims come back

01:19 - 26.294 and testify.

01:19 - 29.931 I would remind the parole board of how devastating the crime was.

01:19 - 34.402 I was going to say, Your Honor, in every case of a homicide coming before,

01:19 - 37.939 the parole board, my office gets a letter

01:19 - 40.876 asked to put up any additional information.

01:19 - 43.845 We we get the record, we send them everything

01:19 - 47.149 we think, which is relevant to show that this is an aggravating case.

01:19 - 50.218 And they do not deserve any clemency at this time.

01:19 - 54.856 On occasion, we've even gone and appeared before the board and testified.

01:19 - 58.660 You're right, though the victims, Crimes Victims Act

01:19 - 02.330 provides that the victim and victim's family have a right to speak to the board.

01:20 - 05.467 So it has been broadened in that respect.

01:20 - 07.235 I can't say that's as broad as a

01:20 - 07.702 if we had

01:20 - 11.306 a sentencing before a trial judge, but it has been broadened to some degree.

01:20 - 14.509 And it does it. What else is it depending.

01:20 - 18.280 I mean, if if we amended the protocol, then what?

01:20 - 21.316 Somebody who's been,

01:20 - 25.921 in prison for, 20 years for a felony murder, well,

01:20 - 27.155 then their opportunity,

01:20 - 30.692 I thought that's all they were arguing for, that it's it's, cruel,

01:20 - 35.430 that they not have the opportunity to go before the parole board life

01:20 - 38.667 without the opportunity or possibility of parole,

01:20 - 41.102 their having given the opportunity.

01:20 - 43.605 And we've done that with the juveniles as well.

01:20 - 45.607 The cruelty aspect is a lack of hope.

01:20 - 49.311 I mean, there's literally zero opportunity regardless of how they've

01:20 - 52.881 rehabilitated themselves over the course of their terms of incarceration.

01:20 - 55.317 I think that's the gist of the argument. Right.

01:20 - 57.953 There should be there should be the opportunity.

01:20 - 00.422 I'm recidivist who has a poor adjustment to prison

01:21 - 03.391 situations, ever get parole?

01:21 - 03.892 Yeah.

01:21 - 07.762 There are some who served long periods of incarceration and long periods

01:21 - 08.864 in solitary confinement

01:21 - 12.534 because they were so dangerous to the rest of the population. Yes.

01:21 - 15.670 Are there other questions for Mr. McCarthy?

01:21 - 18.273 I think we've got it.

01:21 - 19.741 Thank you, thank you, thank you, Your Honor.

01:21 - 22.410 Three shaded.

01:21 - 24.045 Our next case is Garcia

01:21 - 27.048 versus an American Eagle and Garcia versus footlocker.

01:21 - 29.117 The Pennsylvania Unfair Trade Practices

01:21 - 32.821 and Consumer Protection Law forbids unfair methods of competition

01:21 - 37.826 and unfair or deceptive acts or practices in the conduct of any trade or commerce.

01:21 - 42.731 The CPO offers a remedy to consumers who are victims of unfair or deceptive,

01:21 - 46.868 fraudulent or unethical practices by seller goods or services,

01:21 - 50.138 such as misrepresentation or false advertising.

01:21 - 53.675 But these two cases before the Supreme Court began,

01:21 - 56.678 Allegheny County has class action lawsuits.

01:21 - 59.814 Daniel Garcia is the lead plaintiff in each case.

01:22 - 03.652 He seeks the court's permission to act on behalf of the class of persons

01:22 - 07.856 who bought cloth face masks from the defendant retailers and were charged sales

01:22 - 12.394 tax when he claims the law did not permit the retailers to charge sales tax

01:22 - 16.231 on the purchase of that product, and the retailers knew that,

01:22 - 20.969 they knew that they should have not charge sales tax.

01:22 - 24.372 Garcia bought a cloth mask from each of the defendant retailers

01:22 - 26.708 and was charged sales tax on each purchase.

01:22 - 30.879 Garcia sought $100 in damages under the CPA for each purchase.

01:22 - 35.317 Defendants here filed primary objections, arguing that the complaints

01:22 - 39.621 were legally insufficient because improper sales tax collection is not actionable

01:22 - 44.192 under the CPO and Allegheny County Judge ruled in plaintiff's favor,

01:22 - 48.663 the defendant retailer sought permission to appeal from the Superior Court.

01:22 - 53.301 The Superior Court granted their request and reversed the lower court's decision.

01:22 - 54.602 The Supreme Court

01:22 - 58.173 will now hear these cases together because they present the same issue

01:22 - 59.474 in each case.

01:22 - 02.344 The Supreme Court granted the plaintiffs request to appeal

01:23 - 05.280 from the Superior Court's decision to decide the question

01:23 - 08.750 whether the Pennsylvania's unfair trade practices and consumer Protection Law

01:23 - 12.721 applies to merchants collection of sales tax on nontaxable items.

01:23 - 17.158 In other words, if a seller of goods makes an error in the collection of sales tax,

01:23 - 20.929 either deliberately or negligently, it remits the tax to the government.

01:23 - 23.698 Might the seller nevertheless be liable to the buyer?

01:23 - 25.000 Under the Consumer Protection law,

01:23 - 29.371 plaintiffs argued that the Superior Court

01:23 - 31.406 interpreted the consumer protection law.

01:23 - 34.409 They argue that the Superior Court's decision must be reversed,

01:23 - 36.044 because it would permit the sellers to engage

01:23 - 39.781 in all kinds of unfair and deceptive practices in connection

01:23 - 44.252 with the collection of sales tax and other activity connected to the sale of goods

01:23 - 47.622 to consumers governed by the other laws and regulations.

01:23 - 52.994 Defendants in the Supreme Court argue that historically, the Department of Revenue

01:23 - 56.598 considers cloth masks as accessories which were taxable

01:23 - 01.002 with the onset of the Covid 19 pandemic, the department did not issue

01:24 - 04.472 new regulations announcing that cloth masks are not taxable

01:24 - 07.776 and did not issue clear guidance to retailers who inquired.

01:24 - 11.179 Ultimately, the department concluded that cloth

01:24 - 15.817 masks or nontaxable during the pandemic and said it would grant refunds

01:24 - 19.020 to a consumer who paid tax on a cloth mask

01:24 - 22.524 if the consumer certified that they bought the mask to protect against the virus.

01:24 - 26.761 But Garcia did not seek a refund from the government.

01:24 - 29.898 Defendants argue that the alleged mis collection of sales tax,

01:24 - 31.766 without any allegation

01:24 - 35.470 that the retailer gained privately, is not a violation of the CPO.

01:24 - 38.173 They argue that every other state which has addressed

01:24 - 42.277 the question has decided that tax collection is not commercial activity

01:24 - 45.380 that a business engages in for profit, in other words,

01:24 - 48.583 is not trader commerce within the meaning of the CPO.

01:24 - 52.620 Let's hear the arguments in this case.

01:24 - 54.022 Thank you. Justice chard.

01:24 - 55.623 May it please the court?

01:24 - 57.092 My name is Corey Woods.

01:24 - 02.497 I'm here today, with, Stephanie Moore and Jessica Lu, co-counsel.

01:25 - 06.000 So when I introduce them and additional co-counsel in the gallery,

01:25 - 10.038 I represent Daniel Garcia, who is the consumer

01:25 - 14.476 plaintiff, appellant, among other titles, here today.

01:25 - 16.911 Justice Todd,

01:25 - 20.315 Chief Justice Todd identified the question, does the deceptive

01:25 - 24.786 Miss Collection of sums that are identified as sales tax occur

01:25 - 29.023 in a merchant's conduct of its trade and commerce?

01:25 - 32.861 Our position is that it does and,

01:25 - 36.764 that the Superior Court errored in holding that there's somehow an exception,

01:25 - 41.669 to for conducting one's trade and commerce in accordance with applicable law.

01:25 - 46.875 So, let's start where statutory interpretation should start,

01:25 - 51.246 with the text of the statute, section three of the UTP

01:25 - 54.883 or UTP, a couple,

01:25 - 58.319 refers to I don't think anybody calls it that.

01:25 - 59.654 Say it again.

01:25 - 02.423 I just a couple

01:26 - 05.193 refers to,

01:26 - 08.163 unfair or deceptive trade practices

01:26 - 11.299 in the conduct of any trade or commerce.

01:26 - 16.171 But then section two identifies both the words trade and commerce,

01:26 - 19.507 as essentially advertising goods, selling

01:26 - 23.011 goods and services, distributing goods and services.

01:26 - 27.315 It then curiously mentions also any other trade and commerce,

01:26 - 31.352 that, affects citizens of the Commonwealth of Pennsylvania,

01:26 - 35.223 which is kind of an or a borrows if you keep applying the definitions

01:26 - 38.660 to trade, trade and commerce to the definitions of trade

01:26 - 41.796 and commerce within the definition, it's it's a confusing bit, but

01:26 - 44.566 section three,

01:26 - 47.936 again, it identifies in the conduct of trade and commerce.

01:26 - 51.105 And then it exempts publishers of advertisements,

01:26 - 54.475 whether it's on, television, radio, publishing.

01:26 - 58.346 Our position is simple.

01:26 - 02.417 In the conduct of trade and commerce includes everything

01:27 - 05.486 that a merchant does in its overall mission

01:27 - 09.724 to engage in mercantile activity, including regulatory compliance, including

01:27 - 14.095 regulatory compliance, completing its conduct to the applicable

01:27 - 17.131 law, and collecting funds as taxes

01:27 - 20.134 that don't serve to benefit the merchant.

01:27 - 20.935 Well.

01:27 - 23.938 And that's that's interesting because,

01:27 - 27.475 this court in gray,

01:27 - 29.911 and I know Your Honor didn't join Greg, but some did.

01:27 - 33.414 And I president now, said we're not talking about intent.

01:27 - 36.818 We're talking about imposing a burden

01:27 - 39.821 on merchants to ensure that,

01:27 - 44.092 consumers are not deceive with respect to mercantile transactions.

01:27 - 50.932 This is on the the consumer, not on the merchant or where the money goes.

01:27 - 52.967 Precisely. This isn't the Punish

01:27 - 56.070 Unscrupulous Merchants Act, it's the Protect Consumers Act.

01:27 - 59.641 Interestingly, it comes around the same time as strict

01:27 - 03.378 product liability, which does a similar thing for dangerous products.

01:28 - 06.781 If we talk about tenure will be here until well into the evening.

01:28 - 13.154 But it is part of this, this time in the legislature when we're saying, hey,

01:28 - 16.891 we are working on creating the greatest consumer economy in the world.

01:28 - 21.062 An average consumer can't, you know, can't be.

01:28 - 23.097 I'm sorry. Maybe not. Can't be.

01:28 - 26.501 But the average consumer can't, shouldn't be forced

01:28 - 30.138 to figure out whether they're being cheated or deceived in some way.

01:28 - 31.839 That's up to the merchant.

01:28 - 33.174 They get to do that.

01:28 - 34.809 How are they cheated or deceived? They're.

01:28 - 37.812 Their receipts indicated they were being charged a sales tax.

01:28 - 41.749 The receipts indicated they were being charged sales tax.

01:28 - 44.152 They did no sales tax.

01:28 - 46.054 I understand, but there's a remedy for that.

01:28 - 48.089 That you're acting like that doesn't happen.

01:28 - 51.092 That happens all the time.

01:28 - 52.927 Across the Commonwealth of Pennsylvania.

01:28 - 54.262 And there's a remedy for it.

01:28 - 56.931 And you go to the state and you get a refund.

01:28 - 00.902 And and I sort of disagree with your, your concept that it's difficult

01:29 - 01.636 to get a refund.

01:29 - 04.639 It's not that a, particularly on a sales tax item that, that

01:29 - 06.874 this isn't a convoluted sales sale.

01:29 - 08.776 And your point is it's very simple, right.

01:29 - 12.280 So to file for the sales tax refund should have been very easy.

01:29 - 13.681 So I,

01:29 - 16.918 I want to answer in two ways.

01:29 - 20.621 First of all, whether or not it's procedurally

01:29 - 24.625 easy is one question and I well, I thought you wrote in your brief

01:29 - 26.294 somewhere that it was procedurally hard.

01:29 - 29.797 Well, it's procedurally hard in comparison

01:29 - 32.800 to the $0.07 that you're going to get on the dollar.

01:29 - 35.203 But that's, that's that's one answer.

01:29 - 37.972 The second answer is yes. And we cited the case.

01:29 - 41.042 So you should be entitled to more than more than the tax you pay.

01:29 - 42.877 That would make it easier.

01:29 - 46.514 Well, my point is that if we're going to say that something is

01:29 - 52.453 an adequate remedy, the cost of pursuing it should not be greater than the benefit,

01:29 - 55.823 even if it's the government's fault and not the retailers fault.

01:29 - 59.527 Well, it is the retailers fault because the retailer has deceived

01:29 - 01.863 the consumer into thinking that they owe something.

01:30 - 04.098 And this is this is where I this is where I'm

01:30 - 07.101 this is gets us right to the point that I'm struggling with your argument.

01:30 - 10.772 The retailer is collecting the tax on behalf of the Commonwealth.

01:30 - 13.941 The retailer is serving as the the retailer doesn't want to tax your client.

01:30 - 16.577 The retailer would rather not do that.

01:30 - 19.914 The retailer is forced to do it because they're acting on behalf

01:30 - 22.316 of the Commonwealth and collecting that tax,

01:30 - 25.353 because the Commonwealth can't have kiosks outside of retail sales.

01:30 - 28.489 To say, oh, hey, did you pay that sales tax on that when we collect it?

01:30 - 31.559 So so what, you're basically

01:30 - 35.062 punishing the agent for acting for the principal?

01:30 - 39.700 No. So first of all, I think it's it's something of a weak argument

01:30 - 44.071 that's been made here, and it's gone a little unexamined that you are

01:30 - 48.476 that merchants are, in a literal sense, agents of the Commonwealth.

01:30 - 51.779 The cases that they cite for that, there's two of them.

01:30 - 56.017 One of them is a pin tech case

01:30 - 00.121 that's not dealing with a merchant, that's dealing with an actual taxing authority.

01:31 - 04.292 So that that has nothing to do with whether merchants are agents.

01:31 - 07.428 The other case is the gray case.

01:31 - 11.065 And actually the Shaffer case that's cited within the gray case.

01:31 - 15.536 And that is referring to that's in the context of a,

01:31 - 20.508 consumer that's trying to get a refund of sales tax directly from the merchant.

01:31 - 23.144 Nothing to do with what we're talking about here.

01:31 - 25.179 Well, what's the what's the remedy if the merchant doesn't

01:31 - 26.881 collect the sales tax?

01:31 - 28.983 I mean, who's going to come after me?

01:31 - 32.520 I'm just I'm looking I'm exploring the converse of your argument.

01:31 - 35.723 You're saying they're not really an agent for the Commonwealth,

01:31 - 39.360 but if the merchant doesn't collect the sales tax, what's going to happen?

01:31 - 43.097 So if the merchant does not collect sales tax,

01:31 - 47.768 that the consumer is not obligated to pay, nothing happens.

01:31 - 48.135 Oh, no.

01:31 - 51.138 If they are obligated to pay because there seems to be a, you know,

01:31 - 54.308 an argument here that the government gave some conflict.

01:31 - 57.378 Surprise, surprise, the government gave conflicting advice on whether or not

01:31 - 00.381 sales, these particular items were subject to sales tax or exempt

01:32 - 02.083 because of the Covid crisis.

01:32 - 03.017 So let me push back on that.

01:32 - 05.820 That's not that's not exactly true.

01:32 - 08.990 There are regulations, and I know this court's recent cases

01:32 - 12.560 have said, you know, maybe we should give a little more deference to folks.

01:32 - 13.327 I don't know that

01:32 - 14.729 that's going to be relevant to our analysis,

01:32 - 17.732 but I but I think I actually answered my question first.

01:32 - 20.801 If the if the merchant doesn't collect the sales tax, what's the remedy?

01:32 - 24.472 If the merchant does not collect sales tax that is due,

01:32 - 26.941 then they have problems with revenue.

01:32 - 29.544 Yeah, that's absolutely true. But here's here's the thing.

01:32 - 31.312 And I want to get to this because this is the

01:32 - 34.081 this is kind of the answer to both your question, justice McCaffery

01:32 - 36.684 and your question, Justice Roberts I don't mean the point.

01:32 - 37.351 I'm looking,

01:32 - 42.256 in the

01:32 - 46.294 particular case that we've cited in the brief, we've heard this song before.

01:32 - 48.563 We're regulated over here.

01:32 - 49.830 It's very complex.

01:32 - 52.800 It's hard to run a business.

01:32 - 56.237 The UTP is another layer puts us in a double bond,

01:32 - 59.540 in particular secular superior court, Commonwealth court.

01:32 - 05.346 And this court have said in different contexts all over the board we don't care.

01:33 - 09.417 The UTP, CBL is focused on the deception to consumers,

01:33 - 11.452 whatever the other regulations say.

01:33 - 15.990 So that's in the context of insurance, by the way.

01:33 - 19.260 That's the same counsel we argued, Greg argued secular and

01:33 - 23.297 and and said no insurance is subject to the UTP.

01:33 - 27.301 CBL, even though it's got a boatload of regulation

01:33 - 30.538 from the state, including a specific remedy about,

01:33 - 36.043 unfair trade practices in insurance.

01:33 - 38.980 This court set it in the context of purchasing

01:33 - 41.983 housing and elder care versus gas fair back in the 70s.

01:33 - 43.684 It set it in Commonwealth

01:33 - 46.420 versus monumental properties about rental housing.

01:33 - 49.490 And in particular they go over these other contexts

01:33 - 52.526 banking, investment car

01:33 - 55.529 financing and public insurance adjusters.

01:33 - 59.300 So the idea that, oh, no, businesses are in a double bind.

01:33 - 02.403 And so we should shift all the costs of that double bind,

01:34 - 04.472 the cost of compliance with the law

01:34 - 08.275 to consumers at a couple cents a clip, and they'll never know.

01:34 - 09.910 But I understand that point.

01:34 - 14.015 But in any of those cases, was the defendant acting

01:34 - 16.150 as an agent for the state as it was here?

01:34 - 18.052 So. Well, first

01:34 - 21.055 of all, I think if you look at the insurance industry,

01:34 - 24.325 there is some authority and I'm happy to file a letter brief with.

01:34 - 26.627 It's helpful.

01:34 - 30.631 That it's so heavily regulated

01:34 - 34.468 that it's on the order of, you know, a government actor, I think.

01:34 - 35.136 Oh, yeah.

01:34 - 36.003 You don't want to go there.

01:34 - 39.273 I don't know this guy gets very.

01:34 - 41.142 That's not true.

01:34 - 44.512 There's a highly regulated industry, just like the medical profession,

01:34 - 47.682 just like, you know, any licensed entity. But.

01:34 - 50.051 But there's

01:34 - 53.054 to argue that an insurance company is an arm of the state.

01:34 - 54.722 I don't think you're going to get there

01:34 - 56.691 or that they're acting on behalf of the state.

01:34 - 01.595 Maybe the, care fund, would be doing that, but but not at not a private insurer.

01:35 - 05.132 There's no piece of their action in those contexts going to the state.

01:35 - 08.102 Whereas here it's a different animal, isn't it?

01:35 - 12.306 This is a piece that's going to the state miss collection of that piece.

01:35 - 13.474 So it.

01:35 - 18.746 First of all,

01:35 - 21.782 the allegations in this case, we haven't had a deposition.

01:35 - 23.784 We haven't exchanged documents.

01:35 - 25.352 We don't know what they did.

01:35 - 28.355 They might have put it in their pocket if absolutely no idea.

01:35 - 30.658 And if they had brought up,

01:35 - 33.661 you know, if they went to discovery and they should, that's a different argument.

01:35 - 37.064 But did you plead that we pled

01:35 - 40.067 that it was, deceptive conduct?

01:35 - 42.870 We didn't plead because we don't know what they did.

01:35 - 45.372 How would we?

01:35 - 48.542 They've said in briefs we've never seen any evidence of it.

01:35 - 51.512 Oh, we just forward it to the state.

01:35 - 52.747 Fine.

01:35 - 57.051 But but look, whether they give it to the state or not

01:35 - 01.555 is a separate question from whether it is legally required or not.

01:36 - 06.427 And that's the question upon which are the consumers deceived or not?

01:36 - 08.129 Well, but that that goes to the last question.

01:36 - 12.099 I said, the General Assembly has created a remedy

01:36 - 17.671 for people who are charged a sales tax, who believe it was wrongfully collected.

01:36 - 20.808 And you go to the Department of Revenue and you get it back.

01:36 - 23.511 You don't go, you don't sue

01:36 - 25.412 the person that collected it and passed it on to

01:36 - 27.414 the Department of Revenue to get it back.

01:36 - 31.418 Why is that remedy inadequate for?

01:36 - 33.687 It's it's been the remedy forever.

01:36 - 34.922 I mean, this court has seen

01:36 - 38.859 and the Commonwealth courses on a fairly regular basis refund claims

01:36 - 43.297 for for refunds of even sales taxes that weren't appropriately collected.

01:36 - 48.202 Why why do we need this extra remedy when all your client,

01:36 - 52.139 your representative client had to do was click a form with the Department

01:36 - 56.043 of Revenue, attach the receipt and say, and he's $0.07 back.

01:36 - 59.213 So I think that's a legislative question.

01:36 - 00.514 Justice problem. Well, they answered it.

01:37 - 03.250 They said you submit a refund to the Department of Revenue.

01:37 - 06.787 Well, how would the how would the consumer necessarily know

01:37 - 10.191 that he has been overcharged

01:37 - 14.795 or that he, you know, was inappropriately charged sales tax?

01:37 - 16.530 How would he know the. Precisely.

01:37 - 20.167 And that's when I want to like dovetail into Greg.

01:37 - 21.435 Right.

01:37 - 22.102 We're going to

01:37 - 25.139 create the most powerful consumer economy in the history of the world.

01:37 - 28.275 And the way we're going to do that is we're going

01:37 - 32.012 to essentially change the relationship of vendor and customer.

01:37 - 33.480 And we're going to say that

01:37 - 36.050 it's just as whacked as you said.

01:37 - 39.520 And, Greg, it is on the vendor to make sure

01:37 - 42.823 that the consumer is not deceived in the transaction.

01:37 - 47.094 And I think that's true no matter whether we're talking about

01:37 - 50.598 the price of the item, which is really what we're talking about here,

01:37 - 53.601 because again, we don't we don't know where this money went.

01:37 - 57.838 But but look, let's let's get back to the government agent issue.

01:37 - 01.809 First of all, actual government agents,

01:38 - 05.279 are not subject to the UTP. CPO.

01:38 - 08.382 I think I had an extra P in there.

01:38 - 11.185 Just as Todd, authored the,

01:38 - 13.487 the Meier case, a majority

01:38 - 17.658 in that case, and it said the legislature has defined

01:38 - 20.661 person in the statute

01:38 - 23.597 not to include government agents,

01:38 - 27.067 agencies, at least in that case, a political subdivision

01:38 - 30.070 agency, a community college, and in Beaver County.

01:38 - 33.040 Or can these these particular merchants aren't government agents.

01:38 - 35.309 They're they're acting as trustees for the government.

01:38 - 37.711 They're taking the tax interest and give it

01:38 - 39.413 and then giving it over to the government.

01:38 - 42.182 And I think that distinction and by the way, if I were you,

01:38 - 45.252 I think you did so brilliantly by quoting Justice Wecht out of the box.

01:38 - 46.987 But my

01:38 - 50.891 point is that in Greg Ameriprise, my understanding is that Justice works.

01:38 - 54.595 Opinion really talked about a profit motive on behalf of Ameriprise,

01:38 - 58.232 and that's where the conduct of that's likely to be deceptive comes in.

01:38 - 01.702 What's the profit motive for the defendants in this particular case

01:39 - 04.772 to collect a sales tax and then send it along to the government?

01:39 - 07.708 I and I understand your argument and it's going to

01:39 - 09.910 my next question is going to be very simple.

01:39 - 12.846 You said at the outset this is really a consumer driven statute.

01:39 - 16.784 It's not meant to punish the merchant, but if were to take what you're saying

01:39 - 19.954 at face value and to rule in your client's favor, aren't

01:39 - 23.590 we really punishing the merchant and the terms of travel damages,

01:39 - 27.294 actual damages that were incurred, attorney's fees, theoretically,

01:39 - 29.830 because they complied with a government directly?

01:39 - 33.634 No. And here's why.

01:39 - 37.237 And I, I'm not in the business of suggesting questions,

01:39 - 40.574 but I think it's worth interrogating what is a merchant?

01:39 - 43.577 And they've been saying all the time, what were we supposed to do?

01:39 - 46.013 We emailed someone at the Department of Revenue.

01:39 - 47.481 That's not binding guidance.

01:39 - 50.484 They could have asked for binding guidance.

01:39 - 52.152 They changed their mind a couple of times,

01:39 - 55.155 and we just went with whatever the most recent person said.

01:39 - 57.591 But what were they supposed to do?

01:39 - 00.995 They were supposed to find out the law that applied to their enterprise,

01:40 - 06.900 make a definitive determination and execute that,

01:40 - 10.804 conduct their business in compliance with the law that costs money.

01:40 - 14.308 And if their answer is, we're just going to

01:40 - 17.244 email someone at the door.

01:40 - 20.881 And that allows us to potentially overcharge tax to consumers.

01:40 - 24.985 Is there a profit motive there?

01:40 - 26.887 It sure seems like that affects the bottom line.

01:40 - 29.523 What how does that affect the.

01:40 - 31.525 I can't think of any merchant in the Commonwealth

01:40 - 34.528 of Pennsylvania that enjoys charging people sales tax.

01:40 - 37.364 I mean, I don't I don't know, in fact in fact, they're looking for ways

01:40 - 40.701 not to charge people sales tax because it gives them a better advantage.

01:40 - 45.305 And, and so I would like your reaction to that, but I'd also like your reaction

01:40 - 46.874 that you said that they could have gotten

01:40 - 49.877 binding guidance from the Department of Revenue.

01:40 - 53.881 What binding guidance can the Department of Revenue issue absent

01:40 - 57.051 promulgating a regulation or issuing adjudication there?

01:40 - 58.285 There are,

01:40 - 01.455 there is a mechanism in the statute that we've outlined in the brief,

01:41 - 06.093 as I understand it, where you can obtain essentially a safe harbor letter,

01:41 - 10.464 that says, hey, this is our interpretation of the law, is that it's

01:41 - 14.802 like a formal opinion versus, you know, an email from an employee on a Tuesday.

01:41 - 18.472 That's the the procedure that we've outlined that's not binding

01:41 - 18.972 guidance.

01:41 - 22.309 That's a that, that's a you said is a safe harbor letter.

01:41 - 25.512 And it may protect them from prosecution from the department,

01:41 - 28.015 but doesn't necessarily protect them from a you

01:41 - 31.318 if you have your unfair trade practices, a consumer protection law claim,

01:41 - 33.587 it wouldn't necessarily protect from that. Right.

01:41 - 36.223 So go to the Department, get their guidance,

01:41 - 39.393 find out what they think, you're going to do.

01:41 - 42.262 I'm sorry. They think you're required to do.

01:41 - 44.631 And then perhaps you have arguments about estoppel.

01:41 - 48.435 And I'll all of the sort of arguments that they raise below, and by the way,

01:41 - 53.207 didn't get certified on appeal now because they want to talk about,

01:41 - 55.809 you know, whether some things you do in the course

01:41 - 58.512 of running your business aren't part of your business, but

01:41 - 01.181 you do that

01:42 - 04.184 and then you're you're safe on the revenue side.

01:42 - 06.854 But I think it's telling because it cuts both ways.

01:42 - 09.156 Justice, perhaps. And you see it in their brief and their brief.

01:42 - 12.359 They say, well, if we have to,

01:42 - 16.029 comply with the UTP,

01:42 - 19.032 our sales tax decisions are,

01:42 - 22.202 reviewable as deceptive.

01:42 - 27.141 Well then obviously we're going to tax people less and that's bad for the public.

01:42 - 30.177 Fisc. Well that cuts the other way.

01:42 - 33.480 No they're, they're, they're, they're they're messed up either way.

01:42 - 35.549 There's there's no win for them.

01:42 - 38.218 If, if, if you're correct, there's no win for them.

01:42 - 40.521 They have to be absolutely perfect.

01:42 - 42.556 Because if they're not perfect on everything,

01:42 - 45.392 on the collection of the tax, if they don't charge enough tax,

01:42 - 47.361 the Department of Revenue is going to come after them.

01:42 - 50.797 And if we recognize a, Unfair Trade Practices Act claim,

01:42 - 54.868 a plaintiff, class action law

01:42 - 58.205 firm is going to find enough plaintiffs and they're going to sue for class action.

01:42 - 02.042 It's true for unfair, deceptive acts in the insurance industry,

01:43 - 03.877 even though the General Assembly has said the revenue,

01:43 - 06.313 the remedy per consumer is to seek a refund.

01:43 - 07.681 That's absolutely true.

01:43 - 10.017 You have to conduct your business in compliance

01:43 - 11.552 with the law and not deceive consumers.

01:43 - 14.388 It's true for insurers, it's true for housing providers.

01:43 - 15.556 It's true for bankers.

01:43 - 17.724 These are all heavily regulated industries.

01:43 - 20.494 You can see this is this is a different matter.

01:43 - 25.632 This is tax I mean you you want to lumped in with Greg and all these other cases.

01:43 - 28.168 But this is tax collection.

01:43 - 31.171 So what is the Department of Revenue.

01:43 - 35.609 They make a retroactive change and say something's tax exempt,

01:43 - 40.380 but they've already collected the sales tax, from the buyer.

01:43 - 45.419 What do they do in that scenario to avoid liability under the CPO?

01:43 - 46.153 I'm sorry.

01:43 - 49.756 Can you repeat that just so that there's a there's a determination by revenue

01:43 - 54.127 that this is tax exempt, but the tax has already been collected.

01:43 - 56.430 What do they do to avoid liability.

01:43 - 00.634 So I think that's where guidance comes into play.

01:44 - 03.570 You you know it's a cost of doing business.

01:44 - 06.640 There's all kinds of legal compliance requirements that can expose you

01:44 - 09.643 to liability on the other side of your business.

01:44 - 12.646 It's part of the cost of doing business.

01:44 - 15.616 You know, it's true that you can get yourself caught in a it's

01:44 - 19.119 connected to Justice Robson's with which I what I call this whipsaw question.

01:44 - 21.121 Right. Because,

01:44 - 23.490 that there between the rock

01:44 - 26.493 and a hard place right there between the department

01:44 - 29.596 and the potential trouble and punitive on the other.

01:44 - 33.900 Right where where is prior to you coming here, the only the only thing

01:44 - 36.903 they had was, well, if we're wrong,

01:44 - 40.207 at least the consumer has a refund remedy, and that's great

01:44 - 43.510 for the Department of Revenue and that's great for the merchant.

01:44 - 47.914 But that uncertainty is being priced out to consumers.

01:44 - 50.150 How does that happen?

01:44 - 52.386 How is that being priced out to consumers.

01:44 - 54.087 Well, let's let's I mean this is a great example.

01:44 - 58.058 Let's say there's ambiguity about the taxability of a particular item.

01:44 - 59.926 What are the incentives here.

01:45 - 05.198 If it's arguably taxable tax, it

01:45 - 09.569 revenue's not going to complain.

01:45 - 12.406 I don't think so anyway.

01:45 - 15.842 And then who pays for that ambiguity?

01:45 - 19.446 Consumers pay the money's been upstream to the state.

01:45 - 22.783 There's not a there's not a deception motive pled in this.

01:45 - 23.884 Did you plead that.

01:45 - 24.951 Did you plead a

01:45 - 29.356 that they've siphoned the money to their to their treasure, to their pockets?

01:45 - 32.793 Well, just as well there may not be a deception motive.

01:45 - 35.662 They may not be intent to deceive them. They may not be reckless

01:45 - 36.763 or even negligent.

01:45 - 41.735 But is the consumer being charged more?

01:45 - 42.302 I'm sorry.

01:45 - 44.905 Are they being deceived as to what they're paying?

01:45 - 47.908 And they are, because the retailer wants to profit the state?

01:45 - 52.412 The because the retailer wants to get more money to the Department of Revenue?

01:45 - 57.150 No, because the retailer wants to avoid problems with the Department of Revenue.

01:45 - 59.586 And he says let's just export the cost to the consumer.

01:45 - 00.220 Well, you know,

01:46 - 02.489 you're also aware that class actions are filed

01:46 - 04.491 against the Department of Revenue for refunds, right?

01:46 - 10.230 And if, if, if there if there is a common practice of retailers

01:46 - 14.368 overcharging for sales tax and in this claim

01:46 - 15.769 you say exists under these,

01:46 - 19.373 you know, Unfair Trade practices Act, then then why has it been for the last

01:46 - 22.542 how many years that class action lawyers have been suing the Department of Revenue

01:46 - 25.712 to get refunds of taxes, sales taxes in particular, that shouldn't have been paid?

01:46 - 27.981 Yeah, I mean, I, I don't have an answer.

01:46 - 29.249 I don't know,

01:46 - 32.652 maybe it's because nobody's come up with this theory before because it isn't really

01:46 - 34.721 some sort of one.

01:46 - 39.393 When you considering it's the Commonwealth who is benefiting from this transaction.

01:46 - 42.729 Well, respectfully, before Greg, no one had said,

01:46 - 47.134 you know, that deception is itself actionable.

01:46 - 51.671 Well, and aren't we looking in this Consumer Protection Act, not this.

01:46 - 54.908 Who benefited on the sales side, but

01:46 - 58.178 who was there a detriment to the consumer?

01:46 - 59.780 That's precisely correct.

01:46 - 02.849 And look, I Greg talked about at length

01:47 - 06.620 the courts at Pennsylvania when the statute was enacted.

01:47 - 09.423 Some folks are really comfortable with the common law.

01:47 - 12.492 And so we started in drafting these new elements,

01:47 - 15.429 from fraud toward and all these other things.

01:47 - 18.932 And I think why Greg was such a watershed moment

01:47 - 21.935 is it says now we're going to look at the text,

01:47 - 25.539 and I hate to use the dog didn't bark cannon here,

01:47 - 30.677 but if the sales tax existed before the UTP was enacted,

01:47 - 34.080 if you talk to an average business owner, they're going to say that

01:47 - 37.350 one of the things that they do in the context of their business is,

01:47 - 40.954 I comply with tax laws and sales tax laws.

01:47 - 44.391 And the legislature said,

01:47 - 47.527 I don't think well, they didn't say, oh, well, if you're a

01:47 - 51.298 a government agents and you don't have any motive, then that doesn't count.

01:47 - 53.800 That's not textually there.

01:47 - 58.472 And I think what the argument that, my colleagues are making here

01:47 - 01.975 is that the legislature is hiding an elephant in the mouth of

01:48 - 05.479 because if we're going to say in this language

01:48 - 10.016 that may or may not be a copy of the Federal Trade Commission Act, but

01:48 - 14.354 that's that's, you know, maybe that's not necessarily where we are analytically,

01:48 - 16.323 if we're if we're

01:48 - 19.860 going to say we're going to exempt this whole category of things

01:48 - 23.330 that businesses do, that, by the way, still can deceive consumers.

01:48 - 28.935 Are we going to hide it in this kind of circular definition of trade and commerce?

01:48 - 33.173 Or when we're talking about real government agents, are we going to say

01:48 - 34.541 they're not even people?

01:48 - 37.544 They don't. They're not in the statute.

01:48 - 39.145 I don't think that it's the business

01:48 - 42.415 of the legislature to hide from the court.

01:48 - 46.920 Maybe sometimes they're doing that to hide from the court who it intends

01:48 - 49.923 to be in and out of the statute, and what the conduct now,

01:48 - 53.760 look, I don't, I don't I don't want to incorporate criminal principles,

01:48 - 56.029 criminal law principles into what we're talking about here.

01:48 - 59.032 But you're asking us pretty much to draw a bright line

01:48 - 02.769 into and impute certain principles into this particular act.

01:49 - 06.273 In other words, you want us to impute strict liability principles

01:49 - 09.843 into the consumer protection law, regardless of men's right?

01:49 - 12.812 In other words, I don't care if they if they intended to deceive.

01:49 - 13.980 I don't care if they did.

01:49 - 17.517 This catchall provision allows us to kind of proceed via strict liability.

01:49 - 20.253 Yes. I think that's what Greg did. Yeah.

01:49 - 22.088 I think that's what Greg it's.

01:49 - 23.723 Yeah, that that's unquestionable.

01:49 - 27.394 The question is do you, do you get to this tax piece.

01:49 - 28.762 Right.

01:49 - 31.765 And again, I think if the legislature wants to carve out

01:49 - 34.768 this vast swath of activity that businesses are engaged in,

01:49 - 39.306 it says it says a little more explicitly, but but look,

01:49 - 43.243 what they did say was in the conduct of now we've just heard

01:49 - 47.747 two hours about killings that occur in the conduct of a felony.

01:49 - 50.350 Murder is a robbery.

01:49 - 52.953 It's not. It's self robbery.

01:49 - 54.921 This is how we say,

01:49 - 57.991 we refer to an overall mission or an overall enterprise.

01:49 - 01.561 And we've cited a couple of statutes that talk about that fraud

01:50 - 04.864 in the, conduct of your election duties.

01:50 - 09.402 Defrauding people is not an election duty, that I'm aware of.

01:50 - 13.106 Discrimination in the conduct of your business.

01:50 - 16.109 Discrimination is not itself business.

01:50 - 18.278 I hope,

01:50 - 19.946 using automotive,

01:50 - 23.016 automobile dealer plates in the conduct of your administrative functions.

01:50 - 26.252 Driving to the meeting is not an administrative function,

01:50 - 29.956 but it's this broader category of stuff that you do

01:50 - 33.026 so that you can do business.

01:50 - 35.095 And here's why.

01:50 - 38.431 It has to include things that are beyond

01:50 - 43.503 advertising, selling and, distributing goods

01:50 - 47.907 in the UTP, GPL, there's a provision that talks

01:50 - 51.144 about failing to comply essentially with a warranty.

01:50 - 53.847 Product has already been sold.

01:50 - 56.249 It's already been advertised. It's already been distributed.

01:50 - 58.385 You're not you're not living up to what you did.

01:50 - 00.086 Why is that in the statute?

01:51 - 01.621 It's part of the overall enterprise.

01:51 - 05.825 That's a classic, classic consumer protection provision.

01:51 - 08.828 I mean, that's like the granddaddy of consumer protection.

01:51 - 12.532 But I if you win here, what

01:51 - 15.702 what aspects of regulatory

01:51 - 19.305 compliance would be beyond the reach of the CPO.

01:51 - 19.839 Yeah.

01:51 - 22.609 And look we talked about this in preparation a lot.

01:51 - 25.278 Where are the limiting principles coming from.

01:51 - 28.281 And I think the the major limiting principle

01:51 - 31.284 is, is the consumer deceived.

01:51 - 31.785 Right.

01:51 - 36.056 Because that's the catch all fraudulent acts now fraudulent different question

01:51 - 39.092 intent reliance, all these sorts of things deceptive

01:51 - 43.830 is is this activity something that deceiving consumers.

01:51 - 48.435 So for example, or is it something that the merchant

01:51 - 51.705 intended to deceive the consumer?

01:51 - 54.107 Well, I don't

01:51 - 59.546 I'm not sure that an intentional deception is anything different than fraud.

01:51 - 05.018 Well, yeah, but I mean, deceive doesn't deceived in it by definition.

01:52 - 08.822 If you're going to deceive someone, doesn't the word connotes

01:52 - 12.525 some level of, mens rea in and of itself.

01:52 - 18.198 If you deceive someone, if you deceive someone, there is a mens rea.

01:52 - 21.768 If you engage in deceptive conduct, there is no mens rea.

01:52 - 22.869 It's strict liability.

01:52 - 24.270 That's that's the bottom line.

01:52 - 26.372 A great cross that bridge. Right.

01:52 - 27.540 We're through that.

01:52 - 30.176 It's I mean, it is it's kind of like strict liability.

01:52 - 31.411 Yeah, well, it's a deceptive act.

01:52 - 34.380 The statute statute says a deceptive act.

01:52 - 36.783 Right. And that's that's what Greg said.

01:52 - 38.017 We're not worried about intent.

01:52 - 42.222 It gets directly then to the question, was the consumer deceived precisely.

01:52 - 46.092 But look, so we have this this warranty provision

01:52 - 49.796 if if we're just talking about buying and selling it, it's simply

01:52 - 51.264 that that's out of the statute.

01:52 - 52.932 We've drawn a line through it.

01:52 - 55.568 Same thing for, making substandard repairs.

01:52 - 57.704 That's another specifically enumerated,

01:52 - 00.507 statutory provision.

01:53 - 03.510 The attorney general, who, by the way, has

01:53 - 06.312 regulatory promulgated authority in this case,

01:53 - 09.415 adopted a whole chapter of the the Pennsylvania Code that's,

01:53 - 11.551 cited in the brief.

01:53 - 14.554 It's the Automotive Industry Practices Regulations Act.

01:53 - 19.993 It's a little wordy, but, it talks about things like not forwarding the tax

01:53 - 23.930 and the fees and the title fees and so on to the department in a timely fashion.

01:53 - 27.734 It talks about not writing down your odometer reading.

01:53 - 31.604 When you take the car into the shop, it talks about not driving your car around

01:53 - 32.906 while it's in the shop.

01:53 - 35.909 These are not things that have anything to do with the

01:53 - 39.112 the purchasing and selling of goods with the

01:53 - 42.115 advertising of goods

01:53 - 44.918 or, with the distribution of goods.

01:53 - 49.489 These are things that occur in the overall enterprise and include taxation.

01:53 - 52.926 But there were all all of those things are incidental to the

01:53 - 56.162 this the service and the product that they were offering.

01:53 - 00.099 It was in furtherance of what they were being paid for.

01:54 - 01.234 They were being paid.

01:54 - 04.871 They were they were being paid to, you know, deliver the title,

01:54 - 08.641 to, to drive the car to make sure it's operating cuz

01:54 - 10.543 they will be paid for the service.

01:54 - 13.413 They're not being paid by the consumer for anything

01:54 - 16.416 related to the sales tax.

01:54 - 20.520 Well, again, the regulation talks about not forwarding taxes

01:54 - 23.857 and not forwarding title fees to the department in a timely fashion.

01:54 - 27.093 So if you're an agent when you're collecting taxes

01:54 - 28.728 and we're outside the statute,

01:54 - 31.497 then we're we're drawing a line through that regulation to it's gone.

01:54 - 34.467 But wouldn't you have to that's what I'm,

01:54 - 37.470 I'm trying to tease out the, the,

01:54 - 40.273 the, the regulatory activity

01:54 - 43.376 on the one hand and the commercial interests on the other.

01:54 - 46.479 I guess clearly if the pleading

01:54 - 49.616 were something along the lines of a of

01:54 - 53.586 of, a siphoning off

01:54 - 56.656 or a, mischaracterization by the retailer,

01:54 - 02.562 they had, you know, set up something at the register or where the consumer got

01:55 - 06.766 some of that said tax and it was, but it was going right to the retailer

01:55 - 10.503 that, you know, obviously we've got a couple problem there.

01:55 - 13.940 But here,

01:55 - 16.843 here you've got a collection

01:55 - 19.846 for the Department of Revenue.

01:55 - 22.749 And then there's a re characterization

01:55 - 25.752 of the exemption or the non exemption.

01:55 - 30.123 And, and so I guess where's the deception

01:55 - 34.694 if the activity was not done in pursuit of the retailer's commercial interest.

01:55 - 39.799 So if this were the punch line Retailers Act I agree with you 100%.

01:55 - 44.037 If the private action provided a remedy, for ascertainable

01:55 - 47.073 ill gotten gains to merchants, I would be with you 100%.

01:55 - 49.342 But it doesn't. It provides,

01:55 - 52.879 a remedy for deceptive conduct resulting in an ascertainable loss.

01:55 - 55.481 That's what the text says.

01:55 - 57.951 That's where we are when it brings us back to the point

01:55 - 03.222 is, is what Justice Wecht is describing is the CoA is the collection of a sales

01:56 - 06.292 tax on behalf of the Commonwealth and remitting it to the Commonwealth.

01:56 - 12.732 Part of, you know, is that the trading business of the consumer, I mean,

01:56 - 14.434 that's the

01:56 - 17.737 driving around, driving around a vehicle or not driving around a vehicle

01:56 - 19.973 when you're supposed to be taking care of it is within the

01:56 - 21.507 is is clearly within the trade.

01:56 - 26.179 A business honoring a warranty that you sold is is in the trade or business.

01:56 - 29.182 The real question is, is, is collecting the tax

01:56 - 32.185 that the state tells you you have to tax to, you know, to remit it to them?

01:56 - 35.088 Is that part of your trade or business?

01:56 - 35.321 Right.

01:56 - 38.324 And look, they're not doing it for their personal,

01:56 - 40.259 edification.

01:56 - 42.362 They're not doing it for some non-business purpose.

01:56 - 43.830 They're doing it because they want to be

01:56 - 46.299 in the business of buying and selling goods.

01:56 - 49.102 This is part of the overall enterprise of being a merchant.

01:56 - 51.838 You have to comply with the law, whether it's

01:56 - 55.274 sweeping your sidewalk outside, whether it's

01:56 - 57.810 let me give you another example.

01:56 - 00.246 Let's talk about the act six,

01:57 - 02.915 pre foreclosure notice.

01:57 - 04.550 I think that's an interesting example.

01:57 - 07.553 So could I come tomorrow and say, hey,

01:57 - 10.623 the, the foreclosure,

01:57 - 14.027 agent came forward and they said, okay, we're foreclosing.

01:57 - 16.295 You have ten days to give it over or we're going to.

01:57 - 18.831 That's the locks out under their theory.

01:57 - 19.966 And this is why this is

01:57 - 23.403 I think I don't want to impugn motive, but I think this is why they selected

01:57 - 23.970 the issue.

01:57 - 27.874 They selected because what they want is a way to carve out

01:57 - 31.711 conduct that they can tethered to some regulatory requirements.

01:57 - 34.747 This this may be just about sales tax today,

01:57 - 37.917 but tomorrow it's about every notice that's required for every,

01:57 - 40.553 consumer transaction that may or may not be required.

01:57 - 43.022 It's about every other legal compliance issue.

01:57 - 45.892 And we'll say, no, we're just doing what the state tells us to do.

01:57 - 49.162 But the

01:57 - 52.865 the misleading part of that is the whole point of what they're doing

01:57 - 57.003 is so that they can sell goods to Pennsylvanian consumers,

01:57 - 58.938 they're not doing it for fun.

01:57 - 01.941 If we go back to, you know, driving your your dealer plates,

01:58 - 05.678 if you drive with your dealer plates and you're going on

01:58 - 09.082 vacation, that's not in the conduct of your administrative function.

01:58 - 11.050 It's not in the conduct of your business.

01:58 - 13.953 If you're driving to a business meeting,

01:58 - 16.422 the meeting exists so you can be in business.

01:58 - 18.958 That's what this statute is intended,

01:58 - 22.995 to, to, encompass is everything that you're doing

01:58 - 25.832 so that you can get access to that consumer market.

01:58 - 30.002 So then your answer to my prior question about regulatory compliance is nothing.

01:58 - 33.039 That nothing would be outside the ambit of the statute.

01:58 - 34.373 Nothing.

01:58 - 38.211 Nothing that a merchant does to comply with the law

01:58 - 41.280 would be outside of sections three.

01:58 - 44.217 But the other provisions in the act, whether it's the

01:58 - 48.054 the ascertainable loss requirement, whether it's the deceptive requirement,

01:58 - 53.426 so on and so forth, those provisions really do limit, what's going on here.

01:58 - 55.128 It's consumer facing transactions.

01:58 - 57.029 We're not talking about business to business.

01:58 - 01.400 We're not talking about, you know, my my my lease with my commercial landlord,

01:59 - 02.401 things like this.

01:59 - 05.204 We're focused on deceptive

01:59 - 08.641 and unfair practices in the conduct of your trade in commerce.

01:59 - 11.544 All right. I think we understand.

01:59 - 13.713 Are there any other questions for Mister Woods?

01:59 - 16.082 That was a well-argued at a creative argument.

01:59 - 18.518 We will take that under advisement.

01:59 - 19.652 Let's hear from

01:59 - 23.723 the appellee. So.

01:59 - 29.228 Good morning.

01:59 - 30.930 Your honors may please the court.

01:59 - 34.967 Jonathan Ellis, I'm here on behalf of the appellate defendant.

01:59 - 39.672 Dependent appellees in the first case, I plan to address and happy to answer

01:59 - 43.709 questions about any of the aspects of the shared question presented here.

01:59 - 46.812 Counsel for Foot Locker is also here in the related case.

01:59 - 50.149 He will address the court after me and can answer any further questions

01:59 - 52.919 that you have. And you're here for American Eagle?

01:59 - 56.722 I represent nine of the 12, defendants in the first case,

01:59 - 59.725 but I'm arguing behalf of all the defendants in the first case.

02:00 - 03.329 The Superior Court correctly

02:00 - 06.332 held that CPL does not include,

02:00 - 10.369 collecting sales tax within the in the conduct of any act.

02:00 - 11.337 Excuse me

02:00 - 13.339 taking and it's not taken in the conduct

02:00 - 15.841 of any trade or commerce for three reasons.

02:00 - 19.679 The plain text, uniform precedent and the consequences.

02:00 - 23.082 First, the plain text of the act forecloses Mr.

02:00 - 26.485 Garcia's claim as defined in the act, trade

02:00 - 29.622 or commerce is defined as three distinct activities

02:00 - 34.360 the sale, the advertisement, or the distribution of goods or services.

02:00 - 38.130 Collecting sales tax is not in the conduct

02:00 - 41.100 of any of those three mercantile activities.

02:00 - 43.970 As a matter of Pennsylvania law, collecting

02:00 - 46.973 sales tax is done on behalf of the Commonwealth.

02:00 - 51.277 It's not done by a retailer and it's private capacity.

02:00 - 55.314 But as an agent of the Commonwealth, the funds, as soon as they are

02:00 - 58.351 collected, are deemed to be provided directly to the Commonwealth

02:00 - 01.020 and whether they are properly or improperly collected

02:01 - 04.323 are the Commonwealth's funds immediately upon collection.

02:01 - 07.426 You would concede if there was any portion that wasn't

02:01 - 10.596 remitted to the Commonwealth so you you could be exposed, right?

02:01 - 10.863 You would.

02:01 - 12.031 I think that's a different case.

02:01 - 13.966 Is the concurrence recognized below?

02:01 - 17.737 There has been no allegation in this case that the funds were not remitted

02:01 - 21.007 to the Commonwealth, and I think it is on the plaintiff,

02:01 - 23.476 to to make that allegation.

02:01 - 23.809 Okay.

02:01 - 28.514 So you'd concede though, that hypothetical that if that were pled,

02:01 - 31.550 for example, if that were pled, I think that's a different case.

02:01 - 34.053 I think it's a different case, both in the plain text of the act.

02:01 - 34.353 I think it's

02:01 - 37.790 but different case on the precedent and a different case on the consequence.

02:01 - 39.125 I don't think the court needs

02:01 - 42.395 could they played that, though with when you haven't gotten to discovery yet,

02:01 - 45.031 they simply don't know what you do with the money.

02:01 - 48.567 I think the easiest way to find that out would be to actually seek a refund,

02:01 - 51.737 of the tax that they paid from the department.

02:01 - 54.674 And if department comes back and says there's no refund to be give you

02:01 - 56.475 because there's no collection of that,

02:01 - 00.146 record of that of the tax being collected and sent to the Commonwealth, they know.

02:02 - 01.747 And then you'd have a different case,

02:02 - 05.017 and you've been make an allegation in your complaint and make that claim.

02:02 - 06.285 But that's not what's happened.

02:02 - 08.321 But also do a pre complaint discovery if that's

02:02 - 10.022 if that's the theory that's recognizable.

02:02 - 11.590 You could do pre complaint discovery.

02:02 - 15.461 I'm not entirely familiar with how that would work in this context of your honor.

02:02 - 17.263 But it may be may be an option as well.

02:02 - 19.465 The second reason that

02:02 - 22.568 the the collecting of sales tax is not within,

02:02 - 27.773 the CBL is the uniform precedent on the other side of my friend's

02:02 - 31.577 claim here, that state and federal courts, everyone to have considered this

02:02 - 36.182 question and issued a recent decision, has recognized that collecting sales tax

02:02 - 38.284 does not fall within the conduct of trade or commerce

02:02 - 41.620 within the meaning of the Pennsylvania EPL or of this,

02:02 - 45.691 the udev statutes, similar with identical language in other states.

02:02 - 49.562 The High Court of Massachusetts, and the Connecticut Court of Appeals

02:02 - 52.932 more than a decade ago held that collecting sales tax

02:02 - 55.935 does not fit within the identical language within their statutes,

02:02 - 59.038 and three different district court judges in the Western District

02:02 - 02.842 of Pennsylvania have recognized the same under the Pennsylvania CPO.

02:03 - 06.312 We think those decisions are persuasive in their own right, and the court should,

02:03 - 07.713 pay deference to them.

02:03 - 11.550 We also think that they are afforded, awarded or warrant great deference

02:03 - 15.388 under Pennsylvania law, at least the ones from Massachusetts and Connecticut,

02:03 - 19.525 because they interpret the identical language in the same model law.

02:03 - 22.628 And the third reason that collecting sales tax

02:03 - 26.532 does not fit within the conduct of any trade or commerce under the CPO

02:03 - 30.536 are the consequences, of the of a contrary ruling,

02:03 - 35.408 the deciding the taxability of retail sales of goods involves

02:03 - 39.211 fine distinctions and judgments that are not always intuitive

02:03 - 42.415 on the face of the code or the department's binding guidance.

02:03 - 45.718 This case well demonstrates that it wasn't at all clear

02:03 - 49.488 until January of 21 whether cloth masks were should be thought

02:03 - 53.225 of as medical supplies that are in taxable or everyday clothing,

02:03 - 56.662 or an accessory that is taxable and has always been taxable.

02:03 - 59.799 Whether a five ounce energy drink is taxable,

02:03 - 02.802 turns on whether it comes in less or more than four ounces,

02:04 - 06.572 whether a tie is taxable, turns on, whether it's formal or informal.

02:04 - 10.042 These are not the sort of distinctions that courts are well-situated to make

02:04 - 13.245 or vested with the authority to make in the first instance.

02:04 - 14.313 And yet, Mr.

02:04 - 19.585 Garcia would have retailers pay a penalty of one $100 per transaction.

02:04 - 23.556 If, if a court ultimately finds, that

02:04 - 27.860 that the retailer has predicted incorrectly the answer to those questions,

02:04 - 32.431 ultimately, there's no need to create such an impractical scheme,

02:04 - 35.534 and there's no evidence that the legislature intended to do so

02:04 - 37.036 has been recognized this morning.

02:04 - 41.106 Retailers have no profit motive, to overcharge sales tax,

02:04 - 42.842 from their consumers.

02:04 - 44.710 They don't retain those funds.

02:04 - 47.780 All it does is increase the price of their goods.

02:04 - 48.714 But Mr..

02:04 - 54.220 Mr. woods argues that the profit motive is not determinative.

02:04 - 57.790 I don't know that, he argued it was irrelevant, but it wasn't determined

02:04 - 02.328 because the question is how is the consumer impacted?

02:05 - 05.331 Not whether the profit is.

02:05 - 08.100 So we do think the profit motive is relative.

02:05 - 10.135 Is relevant in a couple of different respects.

02:05 - 14.173 And I guess I'll start with the ones that I think affect the consumer

02:05 - 17.510 and their, and their, experience.

02:05 - 21.480 The first I think, is just the is the existence or excuse me, is the,

02:05 - 24.750 is the likelihood of that occurring at all?

02:05 - 26.151 I think that if you look at the

02:05 - 29.688 the CPA is intended to regulate private mercantile activity.

02:05 - 34.426 It's intended to to address and change the incentives or exploitative merchants,

02:05 - 38.297 so that they that are, that are driven by a profit motive

02:05 - 42.401 in some cases, to engage in unfair, acts and practices.

02:05 - 45.437 We think they make those that makes those practices more likely.

02:05 - 48.240 And for a consumer to more likely suffer those.

02:05 - 51.610 And so I think in that respect, it matters to the consumer's experience.

02:05 - 53.479 It's just less likely to happen.

02:05 - 56.482 And the other way it matters is really the,

02:05 - 00.085 the, the opportunity for redress, where there is a profit motive

02:06 - 04.056 driving the retailer's, conduct because they are keeping the funds.

02:06 - 06.258 The only you know, I don't know.

02:06 - 08.460 Yeah, but but I yeah. I'm following you.

02:06 - 11.830 I, I guess my quizzical look, I think you're responding to my quizzical

02:06 - 15.401 look because it seems like part of their theory might be that,

02:06 - 20.406 in an uncertain, or,

02:06 - 26.111 new, tax environment, they're shifting to you.

02:06 - 26.679 I'm sorry.

02:06 - 29.682 They're you're shifting to them.

02:06 - 35.421 The the cost of predicting where the tax liability will be.

02:06 - 38.257 They're, they're saying, in effect, that,

02:06 - 40.693 you over taxed us and,

02:06 - 45.064 and put that cost on us, and we ought to be able to come at you

02:06 - 47.132 for that deception.

02:06 - 49.635 So putting putting intent aside, you know,

02:06 - 53.005 it is an uncertain environment with these masks, Covid, etc., etc..

02:06 - 56.942 So you just you just said, you know, pay the tax

02:06 - 01.213 and now it turns out they weren't liable

02:07 - 05.651 and they want a remedy from you because you couldn't be bothered to

02:07 - 09.054 figure, even though you had the superior capacity

02:07 - 13.459 ostensibly to find that out, you didn't and you shifted that cost to them.

02:07 - 16.095 So I don't think that's a fair characterization of what's happening here.

02:07 - 19.031 Nor is it really a realistic way to look at how this would go.

02:07 - 21.900 As I was just saying it, retailers have no incentive.

02:07 - 23.402 The profit motive points the other way.

02:07 - 26.305 We don't want to charge any more taxes than we have to,

02:07 - 29.875 because if we charge taxes that are not, we are not required to charge.

02:07 - 32.177 All it does is effectively raise our prices

02:07 - 35.881 as compared to our competitors and so lowers our profits.

02:07 - 38.884 And it's also not fair to say that we there's nothing done here.

02:07 - 42.354 And if you look at the record at 230 and 233, those were questions

02:07 - 46.191 were asked about whether, cloth masks were taxable.

02:07 - 51.230 And the answer was no, or yes, they are taxable until January of 2021.

02:07 - 52.698 I think that was the better

02:07 - 55.701 reading of the guidance from the department and of the law.

02:07 - 59.571 I think what and so what we're really saying is that,

02:08 - 03.475 that we should take the risk, we should bear the risk and not just to

02:08 - 07.513 pay back the tax, but to pay $100 per transaction and penalty.

02:08 - 11.083 And I think that is just not what the legislature intended.

02:08 - 15.187 And I think what the refund mechanism demonstrates is that the legislature

02:08 - 19.491 had another mechanism in mind, an out of court efficient mechanism.

02:08 - 22.761 It's taken advantage of by thousands of consumers every year.

02:08 - 25.431 Isn't that isn't that also that's part of the answer, right.

02:08 - 30.002 Is is about this shifting of the of the risk or burden.

02:08 - 33.939 The General Assembly has said, you know, there is uncertainty

02:08 - 37.276 and that's why we're giving a refund remedy to the consumer

02:08 - 39.878 if the consumer feels that they have been overcharged.

02:08 - 44.516 And so that's the General Assembly that's shifted that that burden or risk.

02:08 - 45.250 Absolutely. Right.

02:08 - 46.719 I do want to address this idea

02:08 - 49.655 that we could have sought more guidance instead of a binding guidance

02:08 - 50.823 that gets us nowhere.

02:08 - 51.924 I think what we've established

02:08 - 55.260 in the conversation this morning is that even if we had something more formal

02:08 - 56.762 than the Q and A that we had,

02:08 - 00.899 and what that said was what the Q&A said, those are taxable.

02:09 - 04.703 And then it came along later and with the 21 guidance and said, you know what?

02:09 - 07.106 Actually it's not they were not taxable.

02:09 - 09.708 Now we have a safe harbor against the department.

02:09 - 13.045 But under his theory, we're still, have committed an unfair

02:09 - 14.379 or deceptive act or practice.

02:09 - 17.883 And the fact that we didn't think we were is no different than this case.

02:09 - 20.986 We haven't there's no allegation that we didn't take the but

02:09 - 24.289 the utmost care in trying to charge the proper amount.

02:09 - 26.492 And as we've discussed over and over again this morning,

02:09 - 28.894 the center doesn't apply here. There's no mens rea.

02:09 - 32.765 So the fact that we thought, that we couldn't we had to charge

02:09 - 36.602 sales tax here isn't going to protect us from, from a CPO claim.

02:09 - 38.003 But that's his point.

02:09 - 44.510 I have a I have a little bit of a harder time getting over this notion that the,

02:09 - 47.646 charging, and collecting the

02:09 - 51.917 sales tax is not part of, the sales transaction.

02:09 - 56.321 That certainly encompassed within those types

02:09 - 59.892 of activities that we look to in, enforcing this act.

02:10 - 02.928 So I don't I think that that's a matter, really of Pennsylvania

02:10 - 05.731 law that it is not the retailers wearing a different hat.

02:10 - 06.899 And when it's collecting sales.

02:10 - 09.568 Oh, you're saying it's a matter of Pennsylvania law?

02:10 - 14.106 We're being asked to say that as a matter of Pennsylvania law, collecting the tail

02:10 - 19.845 sales tax is indeed part of the sales transaction as anticipated in this act.

02:10 - 20.078 Right.

02:10 - 22.481 So so I kind of proceed in two different steps.

02:10 - 25.851 First, you start with the CPO and you ask, what are the kind of,

02:10 - 30.088 activities that the CPO intends to regulate in sales?

02:10 - 31.456 That's right.

02:10 - 33.992 Yes. Private mercantile activity is what my friend,

02:10 - 37.029 recognized this morning, I believe, sales of goods.

02:10 - 41.133 And I hear, I think that, Chief Justice Castillo's concurring opinion in the Myer

02:10 - 42.601 decision is helpful. Right.

02:10 - 44.269 Well, first of all,

02:10 - 47.272 that's, that was, Judge Pellegrini's,

02:10 - 51.276 quotation that appears in Justice Castillo's,

02:10 - 55.714 concurring opinion, which is an excellent,

02:10 - 56.949 statement of something.

02:10 - 00.919 But, this notion of this notion of,

02:11 - 04.156 this this notion of, exempting

02:11 - 08.393 the performance of public duties is a much broader,

02:11 - 12.331 much broader proposition than what we're talking about here.

02:11 - 15.868 I think what what we're asking here, and it is, is for the court

02:11 - 19.872 to recognize the collecting of a sales tax, is an act that is not,

02:11 - 23.642 in conduct of a sale, that the retailer is wearing a different hat.

02:11 - 27.079 That the gray case that we talked about already this morning says

02:11 - 30.549 it explicitly that the retailer is acting as an agent of the Commonwealth there,

02:11 - 32.050 and that was entirely relevant.

02:11 - 34.486 A call to it, rose and a refund. Case.

02:11 - 38.357 The whole idea was, once you give the money to the retailer,

02:11 - 42.461 the statute of limitations for for filing a refund petition has begun

02:11 - 44.763 because you've given it to the Commonwealth,

02:11 - 47.733 because the retailer is acting as an agent in that capacity.

02:11 - 51.536 The tax those who bring claims under this

02:11 - 55.607 statute, oftentimes many times have breach of contract actions.

02:11 - 57.209 So what.

02:11 - 57.609 Yeah.

02:11 - 01.446 This so I think there's there's multiple things in the, in this case

02:12 - 05.984 that indicate that collecting a sales tax is not within the trader commerce.

02:12 - 09.521 It's true that the the alternate remedy that's provided

02:12 - 12.524 by the, by the legislature is a powerful part of that story.

02:12 - 15.127 But but actually, I think there's a lot more than that.

02:12 - 17.362 I think, as I was saying, that the fact that they're acting

02:12 - 20.465 as an agent of the Commonwealth indicates that they are not acting

02:12 - 23.669 with their private retailer hat on when they collect that sales tax.

02:12 - 26.738 The fact that the tax code says that the collection of sales

02:12 - 31.009 tax has to be done alongside making a sale, not not in making the sale,

02:12 - 33.211 not with making the sale, but alongside of it.

02:12 - 36.248 The fact that the tax code says that when you're advertising,

02:12 - 39.885 you have to separately advertise the price that you're charging.

02:12 - 43.455 In the sale and the tax that will be collected, that you cannot

02:12 - 46.692 tell consumers that you're going to absorb that price.

02:12 - 50.262 I think those are all strong indicators that these are different tasks,

02:12 - 56.101 and they are not that this is not inside the the sales that are reached by the CPO.

02:12 - 58.203 You're looking for an exception.

02:12 - 59.972 No, Your Honor, I disagree with that.

02:12 - 01.873 We are looking for an interpretation.

02:13 - 05.210 I'm not suggesting that that is necessarily wrong, but

02:13 - 08.213 I'm just saying that I have a hard time

02:13 - 13.952 separating the collection of a sales tax from the sale itself.

02:13 - 18.423 I mean, that is indeed part of the transaction when that has to be done.

02:13 - 23.562 In order for, the retailer to be in business.

02:13 - 25.797 So you have to collect sales taxes.

02:13 - 28.433 So we are not seeking an exception, your honor, we are seeking

02:13 - 31.636 an interpretation of what it means to be in the conduct of trade or commerce.

02:13 - 33.872 I think what I heard my friend say this morning,

02:13 - 38.043 I think he eventually said it right explicitly, that he thinks that that work,

02:13 - 42.180 that's that phrase does no work, that any conduct that is taken by

02:13 - 46.018 a retailer is in the, in the, in the conduct of their trade or commerce.

02:13 - 48.553 And I can't that cannot be what the statute meant.

02:13 - 52.591 The legislature is not in the business of adding in whole phrases

02:13 - 55.727 and definitions of those phrases that do no work.

02:13 - 59.798 We are asking the court to enforce the limitation, the element of a CPO

02:13 - 03.235 claim that requires the conduct to be in the trade or commerce.

02:14 - 04.136 And I think if you look

02:14 - 08.707 at the court's cases in Massachusetts, the case where the last case or the other,

02:14 - 11.043 the case is interpreting CPL and the district courts,

02:14 - 15.380 you'll see that none of those decisions are, writing, exceptions into the law.

02:14 - 18.850 They're all interpreting what it means to be, to, to

02:14 - 21.920 take conduct, take actions in the conduct of trade or commerce.

02:14 - 26.792 Why are we why are I I know this maybe is not germane

02:14 - 31.563 or takes us back a few steps, but why is the issue whether,

02:14 - 37.069 this is in the conduct of any trades, trade or commerce

02:14 - 38.503 within the meaning of the law,

02:14 - 42.074 rather than whether this can be an unfair method of competition

02:14 - 45.577 and unfair or deceptive acts within the meaning of the law.

02:14 - 48.613 So we advanced several different defenses below.

02:14 - 52.451 But I think the one that, we'll hear before this court on

02:14 - 55.620 is whether it comes in within the conduct of a trade or commerce.

02:14 - 58.623 That's an element just like the unfair, or deceptive.

02:14 - 00.759 Why is it why is it that and not the other?

02:15 - 04.229 In other words, why is the issue whether

02:15 - 09.134 the collection of tax is in the conduct of any trade or commerce, rather

02:15 - 12.270 than whether it can be unfair method

02:15 - 15.340 of competition and unfair or deceptive act?

02:15 - 19.177 I I'm not in the business of telling the court, you know how we should win.

02:15 - 22.547 I'm happy to take a win on any ground, but I think the reason that we advance

02:15 - 25.484 this argument, and the reason that the other courts to address

02:15 - 28.753 your question, Your Honor, have done this, is because there is a definition

02:15 - 31.957 in the code of what that means, that it has to be have a real limit here.

02:15 - 35.260 It has to and it is defined, I think, rather

02:15 - 38.697 not unlimited limitlessly, but as three distinct acts.

02:15 - 42.834 And I think that the that the code, indicates that the, the both

02:15 - 47.606 the CBL itself, as well as the tax code, the Pennsylvania state tax code suggests

02:15 - 48.106 that that's,

02:15 - 50.375 that is outside that limitation, because the reason

02:15 - 55.413 I ask you not to belabor it, but Justice Donahue's question, surface for me.

02:15 - 01.119 The possibility that, the collection of tax,

02:16 - 05.590 though it's on behalf of the state, could be

02:16 - 09.194 within the conduct of any trade or commerce, but nonetheless,

02:16 - 13.331 as a matter of law and not be an unfair method of competition,

02:16 - 18.970 an unfair or deceptive act absent a pleading of siphoning or what have you.

02:16 - 22.674 Sir, we do not think that we engage in an unfair act or practice here.

02:16 - 25.810 Your honor, I just understand the court to be grappling with,

02:16 - 30.115 a separate question today, and I think it's our argument as well.

02:16 - 30.782 Founded. Indeed.

02:16 - 35.987 It is the unanimous view of the courts, that whatever it means to be

02:16 - 39.624 the catchall phrase certainly hasn't pointed to any of the enumerated phrases,

02:16 - 45.564 that this is not an act that was done in the conduct of any trade or commerce.

02:16 - 46.865 And I do think that though, though

02:16 - 48.667 you could have argued, you could have argued,

02:16 - 49.568 or maybe you will still

02:16 - 53.338 have an opportunity to argue that, that this what is being alleged

02:16 - 56.741 does not fall within the category of one of the 21 enumerated.

02:16 - 59.044 We did. We did, Your Honor. We advanced that below.

02:16 - 02.280 We have an advance in this court, but we did make those defenses.

02:17 - 04.449 I was going to say that I think they enumerated

02:17 - 07.552 unfair acts and practices here do have relevance, even to the question

02:17 - 09.487 that the court is grappling with today.

02:17 - 13.258 And I think it just reinforces, if you look at those list of, of of acts,

02:17 - 17.295 they are all ones that are that a retailer takes in their private capacity,

02:17 - 19.030 in their profit seeking capacity.

02:17 - 20.899 And I think it just reinforces,

02:17 - 24.035 what I think, Chief Justice has Steele and Pellegrini.

02:17 - 27.172 If I said that we really, had,

02:17 - 30.875 found in, in the Myer case that both in this court and below

02:17 - 34.412 that really what the talking did is private mercantile activity.

02:17 - 37.549 And, and I think that that when you're undertaking,

02:17 - 40.785 a government obligation, specifically this one, specifically the collecting

02:17 - 44.222 of sales tax, where you are and the retailer is an agent of the state,

02:17 - 47.559 and the funds are collected for the Commonwealth and transmitted

02:17 - 51.863 to the Commonwealth, that that's just not the sort of private mercantile, I guess.

02:17 - 55.700 And, Judge Pellegrini at the time, president, judge

02:17 - 58.203 wrote a dissent in the lower court in Myers.

02:17 - 01.840 And that's where that often sided quotation comes from. But,

02:18 - 04.442 here's my problem.

02:18 - 05.277 Very basic one.

02:18 - 08.213 It's called a sales tax.

02:18 - 12.117 The only the only, entities that impose

02:18 - 15.620 this tax are people who engage in sale.

02:18 - 21.259 I mean, I could buy an argument that maybe it is in an unfair practice,

02:18 - 25.630 but I mean, to suggest that this is outside of the realm of,

02:18 - 28.933 commerce, as is anticipated

02:18 - 32.070 in this act, strikes me as a stretch.

02:18 - 35.206 As I said, I think you'd have to call it something else.

02:18 - 36.341 Like it's an exception.

02:18 - 41.680 They are acting as an agent for the state, not as someone conducting a sale.

02:18 - 43.348 See, I find that a stretch.

02:18 - 46.484 So I grant you, your honor, that it happens at the same time.

02:18 - 46.885 Right.

02:18 - 49.888 But I, I think it happens separately, and I,

02:18 - 53.258 I try one more time to persuade you of that.

02:18 - 55.293 Yes, I know,

02:18 - 58.930 but I do think I think the look at the court's decision and Feeney I think

02:18 - 02.734 it includes a good description of this as well as the court's description, case

02:19 - 07.372 the analysis in Lisowski, which is, which is a Western District pencil.

02:19 - 10.408 From your perspective, it's a separate transaction, but

02:19 - 14.913 from the consumer's perspective, it's one seamless transaction.

02:19 - 19.284 And and and so I guess the question it's a question of the lens,

02:19 - 22.754 how wide or how narrow we want to draw the lens here or should draw the lens.

02:19 - 26.858 Because viewed from,

02:19 - 30.028 a consumer's perspective perhaps,

02:19 - 32.130 all of these

02:19 - 36.701 things are cost of doing business for you, all of which you're absorbing

02:19 - 40.438 in, in pursuit of the bottom line at the end of the,

02:19 - 43.975 at the end of the business venture, which is some profit hopefully for you.

02:19 - 44.642 Right.

02:19 - 48.413 So that that you're expected to absorb all of these costs and,

02:19 - 52.317 and it's on you from their perspective, if any of them

02:19 - 54.519 have had a disruptive effect.

02:19 - 56.721 So it's not a strict is not an intent based.

02:19 - 57.555 I mean of course, in

02:19 - 02.460 some in some sense, everything that we do as a retailer is in this is in the,

02:20 - 05.296 it's toward the profit making.

02:20 - 07.432 Right? So is the hiring, so is the buying.

02:20 - 10.635 But we know right from Chesapeake Energy that the buying is not

02:20 - 11.603 within trade or commerce.

02:20 - 12.971 I don't think anyone really thinks

02:20 - 16.541 that hiring is within the conduct of trade or commerce within the CPL.

02:20 - 18.910 It cannot be everything that we do.

02:20 - 22.213 And so I then it really comes down to your point that to the retailer

02:20 - 25.283 or to the consumer, it's it's one transaction and to your point

02:20 - 28.586 you and that that's your opposing counsel's point.

02:20 - 29.287 Right.

02:20 - 32.857 But to me, all it to suggest,

02:20 - 38.029 that it is somehow unfair competition is a very large leap.

02:20 - 42.033 And that's sort of the underlying argument here, which is there's no profit motive.

02:20 - 43.401 They aren't making any.

02:20 - 48.907 So, I mean, unfair competition means to me that you're doing something

02:20 - 53.344 to put yourself above your competitors, in the marketplace.

02:20 - 55.480 This would be the antithesis of that.

02:20 - 59.150 But that doesn't mean it's not in the context of a sale

02:20 - 02.654 or to incentivize the consumer to buy your goods.

02:21 - 07.826 In a way, through some deceptive act.

02:21 - 11.196 We do not think that we engage in any deception or unfair practice here.

02:21 - 14.632 And if there's nothing, there's nothing about separately line item A sales tax

02:21 - 18.269 that incentivize a consumer to purchase at your store versus some others.

02:21 - 18.903 Absolutely not.

02:21 - 21.406 There's certainly nothing about collecting a sales tax that we don't.

02:21 - 24.175 Oh, that's going to, incentivize a consumer to.

02:21 - 27.946 My concern is here somehow limiting the notion of what

02:21 - 31.516 a sale is in the context of this act?

02:21 - 34.752 That, to me, is something,

02:21 - 38.590 totally unnecessary under the circumstances of this case,

02:21 - 42.026 and certainly in the context of the fact that this is

02:21 - 45.864 a seamless transaction for the consumer, and that's who we're focused on.

02:21 - 48.700 So, I mean, so to, to somehow,

02:21 - 51.202 you know, make a sale

02:21 - 54.873 something narrower than, appears on the face of,

02:21 - 58.142 the statute is, I think, a dangerous proposition.

02:21 - 59.777 So I'd love to address,

02:21 - 02.981 if I could, the concern about sort of the knock on effects here.

02:22 - 04.382 And then I'd like to come back to why

02:22 - 08.219 I still think it is a different part of the sale, a legally different one.

02:22 - 11.556 But to the to the sort of slippery slope idea, I think

02:22 - 15.193 the best I can point you to your honor, is the fact that Massachusetts,

02:22 - 18.630 decided this question as clear as day in the High Court.

02:22 - 21.232 Over ten years ago, the Connecticut Court of Appeals

02:22 - 24.235 decided it over ten years ago in a binding decision.

02:22 - 27.372 No court in the land has has granted

02:22 - 31.042 this sort of claim, when it when it grappled with this argument.

02:22 - 36.748 And yet what my my friend can't point to any actual, adverse consequences to that.

02:22 - 40.552 It's we've had over a decade in those states of a being crystal clear

02:22 - 43.187 that that in the conduct that a collecting of sales

02:22 - 45.223 tax is not in the conduct of any trade or commerce.

02:22 - 49.027 And there haven't been any sort of sweeping, bad effects in other parts

02:22 - 52.830 of, of their, consumer protection statutes that I'm aware of or that,

02:22 - 53.898 my friends, has identified.

02:22 - 57.835 So I don't think you should have concerned about about the next step on the chain.

02:22 - 59.671 I lose sleep over things like that.

02:22 - 01.506 So I will be concerned about.

02:23 - 03.975 Okay.

02:23 - 06.377 Any other questions for Mr. Ellis?

02:23 - 07.111 Well-Argued.

02:23 - 10.114 Let's hear from your co-counsel, Mr. Martin.

02:23 - 11.282 Seems like Mr.

02:23 - 13.017 Ellis covered just about everything,

02:23 - 16.020 but if you have anything to add, we'd love to hear it.

02:23 - 20.658 Mr. Ellis did cover everything, and I take the admonishment literally.

02:23 - 25.330 I will add only one thing to the immediate discussion where we left off,

02:23 - 30.201 about sales tax and the concern about sales.

02:23 - 34.138 I would focus that on the word tax.

02:23 - 37.508 And the difference here in the analysis

02:23 - 40.945 is that the prerogative to tax

02:23 - 45.483 the imposition of a tax and the directive

02:23 - 50.521 to tax starts with and comes from the government.

02:23 - 54.225 It's not something that the merchant,

02:23 - 57.195 dreams up in the context of the sale.

02:23 - 02.634 And I think that's why we can take this out of the statutory scheme.

02:24 - 06.437 Because of where the prerogative and directives comes from.

02:24 - 10.108 So that would be my point to add to the analysis and thank you.

02:24 - 12.844 Anybody have any questions for Mr. Martin? No.

02:24 - 14.579 Those are thank you.

02:24 - 16.180 Well argued by all.

02:24 - 19.550 Mr. Ellis, you were admitted pro hockey and our corked up.

02:24 - 21.052 Where is your home?

02:24 - 22.520 North Carolina, North Carolina.

02:24 - 24.989 Well, you're welcome in Pennsylvania any time.

02:24 - 25.690 Thank you. All.

02:24 - 27.258 In the next

02:24 - 32.263 case, captioned in the interest of s w a minor, the Supreme Court will consider

02:24 - 36.634 when a foster parent has standing to intervene

02:24 - 41.105 in a proceeding involving juvenile dependency.

02:24 - 45.610 Juvenile dependency is when a court takes jurisdiction over a child,

02:24 - 49.947 because his parents are unable to take care of him properly.

02:24 - 53.151 In this case, S w was born on

02:24 - 56.154 September 15th, 2020.

02:24 - 00.992 The Cyf subsequently became involved and the child was adjudicated dependent

02:25 - 04.062 on November 25th, 2020

02:25 - 07.632 and was placed with an W and a W.

02:25 - 10.702 The court subsequently

02:25 - 13.838 entered an order moving the child to a new foster home

02:25 - 17.875 on August 26th, 2022, and W

02:25 - 21.446 and and W sought to intervene in the proceedings.

02:25 - 26.050 Unfortunately, in the view of A, W and and W,

02:25 - 30.121 they were denied the opportunity to intervene in the case.

02:25 - 35.326 The issue which came up was whether or not they were unable to intervene

02:25 - 38.463 because they did not have legal custody of the child.

02:25 - 41.532 As you will recall, custody had been given to

02:25 - 45.036 Cyf under the November 25th, 2020 order.

02:25 - 50.208 In this case, they had argued that pursuant to a court

02:25 - 54.679 made rule known as the adoptive parent standing exception,

02:25 - 58.583 they would be entitled to standing in the court

02:25 - 02.620 that was decided under an older case known as Mitch versus

02:26 - 05.890 Bucks County Children and Youth Social Service Agency.

02:26 - 10.228 Subsequent to that case, the Pennsylvania legislature

02:26 - 15.867 adopted a statute which addressed issues concerning notice, hearing,

02:26 - 19.003 and possibly standing of a foster parent

02:26 - 22.273 who does not have custody of that child.

02:26 - 25.510 The statute has two important provisions

02:26 - 28.780 that are applicable to the discussion here.

02:26 - 31.816 The first provision states that the court shall direct

02:26 - 37.188 the county agency or juvenile probation department to provide the child's

02:26 - 42.059 foster parent, pre adoptive parent relative providing care for the child,

02:26 - 45.229 or a personal kinship care resource under

02:26 - 48.499 67 statute 7507.

02:26 - 52.637 With timely notice of the hearing, the court shall provide the child's

02:26 - 58.009 foster parent pre opt a parent or relative providing care for the child,

02:26 - 01.712 the right to be heard at any hearing under this chapter.

02:27 - 07.451 So the issue becomes, since the statute only says the right to be heard

02:27 - 12.123 and also provides a notice right, does that confer or preclude

02:27 - 16.594 standing a second provision in the same statute also states

02:27 - 21.199 that unless a foster parent, pre adoptive parent, relative providing

02:27 - 25.002 care or kinship care resource for a child has been awarded

02:27 - 28.973 legal custody pursuant to section 6357,

02:27 - 33.744 nothing in this section shall give the foster parent, pre adoptive parent

02:27 - 37.915 relative providing care a potential kinship care resource

02:27 - 42.220 for the child legal standing in the matter being heard by the court.

02:27 - 48.359 So the question because becomes because the statute does not give standing

02:27 - 52.096 in the court, does that preclude adoption

02:27 - 55.099 of a court made rule to allow standing?

02:27 - 56.901 Let's hear the arguments.

02:27 - 59.303 Thank you.

02:27 - 01.472 She's chief justice. Todd, my name is Tom.

02:28 - 03.241 Well, Sean's I'm with kids voice.

02:28 - 05.309 We are guardian ad litem for you.

02:28 - 07.345 And the underlying dependency case.

02:28 - 10.681 Today I will be focusing on the issue of the abrogation

02:28 - 14.886 of the Superior Court case law by section 6336.1 a.

02:28 - 16.554 And I'm going to emphasize

02:28 - 20.157 the reasons why this is important from the perspective of foster children.

02:28 - 23.160 Miss Streicher from the Allegheny County Law Department

02:28 - 26.464 will focus on the importance of this issue for the county agency.

02:28 - 29.533 And this fall, Penny from the Juvenile Court project will focus

02:28 - 32.536 from the perspective of parents.

02:28 - 34.405 Today, we are asking you

02:28 - 38.776 to hold that pursuant to section 6336.1 A of the Juvenile Act,

02:28 - 42.980 foster parents, including pre, adoptive, foster parents,

02:28 - 46.651 have a right to notice of every hearing and dependency court

02:28 - 49.921 and the right to be heard at every hearing and dependency court.

02:28 - 53.591 But unless they have been awarded legal custody of the child,

02:28 - 57.828 they do not have standing for any purpose in the case.

02:28 - 03.034 We are the statutory allowance right to appear and be heard.

02:29 - 05.102 That's correct.

02:29 - 07.838 Chief Justice Todd Yes, we're asking essentially

02:29 - 12.076 that the statute to which was enacted after the Superior Court line of cases

02:29 - 16.147 began be enforced, because we think that it hasn't been,

02:29 - 20.618 followed, of course.

02:29 - 23.621 The statute says nothing in this section

02:29 - 27.124 shall confer standing.

02:29 - 30.194 They said, imply that

02:29 - 32.530 there are other contexts

02:29 - 35.533 in which standing could be conferred.

02:29 - 38.235 Justice Donoghue I have two comments to that.

02:29 - 41.672 First of all, this is the only section in the juvenile act that references

02:29 - 45.109 standing for foster parents or gives foster parents any rights at all.

02:29 - 50.681 Second of all, we know when this statute was enacted in 1998,

02:29 - 55.353 we know that prospective adoptive or pre adoptive foster parents

02:29 - 59.790 had standing to intervene to challenge removal of the child

02:30 - 03.260 pursuant to Mitch and Griffin in that line of cases.

02:30 - 04.895 So that starts in 1990.

02:30 - 07.665 In 1989,

02:30 - 10.868 if section 6336.1,

02:30 - 16.374 they simply said nothing in this section shall give a pre adoptive parent standing.

02:30 - 20.544 Then I think there's an argument that the letter to the General

02:30 - 24.515 Assembly was was allowing that earlier,

02:30 - 26.851 exception to continue.

02:30 - 28.652 But that's not all the section says.

02:30 - 34.792 If you look at the language of the last sentence of 6336.18, it starts

02:30 - 38.929 with this clause that says unless a foster parent, pre, adoptive parent, etc.

02:30 - 43.200 has been awarded legal custody, so they didn't need to do that.

02:30 - 47.605 If the General Assembly intended that Mitch Griffin line of cases to continue,

02:30 - 52.910 all they needed to say was they start with where it says nothing in this section.

02:30 - 55.746 Then I think he's got an argument. But there's more.

02:30 - 59.950 There's this first clause and we can't you know, we shouldn't interpret a statute

02:30 - 03.754 to say that language has no meaning as or or is superfluous.

02:31 - 07.258 And I wanted to put this a little bit of a different way.

02:31 - 12.630 If the legislature had intended the Mitch Griffin standing to survive,

02:31 - 18.169 then they would not have included pre adoptive parents as needing

02:31 - 22.506 to have legal custody to have standing because they already had it under Mitch.

02:31 - 25.576 So if you look at again this last sentence, unless a foster

02:31 - 28.579 parent comma pre adoptive parent

02:31 - 31.782 this says they need to have legal custody to have standing.

02:31 - 35.252 But pursuant to Mitch and Griffin they didn't need legal custody.

02:31 - 36.587 They already had standing.

02:31 - 39.990 So my point is this is doing it to us.

02:31 - 44.328 This language is clear and unambiguous that the General Assembly's intent

02:31 - 48.032 was to abrogate this line of cases.

02:31 - 50.835 So they are both superior court cases, correct?

02:31 - 53.237 That's correct. That's correct. Justice Daugherty

02:31 - 58.008 I, it is without

02:31 - 01.612 question, of course, that foster parents serve an important role to this system.

02:32 - 04.782 And the General Assembly recognized that in section

02:32 - 08.185 6336.18, it does give them the right to notice.

02:32 - 10.054 It does give them the right to be heard.

02:32 - 13.224 But again, it's clear that unless they've been awarded legal custody,

02:32 - 14.425 they don't get standing.

02:32 - 17.628 The foster parents in this case had never been awarded legal custody.

02:32 - 20.531 The Superior Court,

02:32 - 22.466 I think it's the Superior Court.

02:32 - 23.734 Understood.

02:32 - 26.403 You can't reconcile these earlier cases.

02:32 - 29.073 You can't reconcile Mitch. You can't reconcile Griffin.

02:32 - 34.111 You can't even reconcile MRF three with section 6336.18.

02:32 - 37.081 Why do we

02:32 - 39.717 why am I even looking at those?

02:32 - 42.720 Why aren't I just looking at what the statute provides?

02:32 - 43.921 Yeah.

02:32 - 48.526 It's almost like you're asking me to look at prior case law to to find an ambiguity

02:32 - 53.998 or resolve intent of the General Assembly when if I read this statute, it's,

02:32 - 59.470 you know, and I think it's relatively clear, to justice Donahue's point

02:32 - 04.008 is it's a no to statute to notice and an opportunity to be heard statute.

02:33 - 07.778 But the people that get statutory notice in an opportunity to be heard,

02:33 - 11.949 can't rely on that, that notice an opportunity to be heard

02:33 - 15.819 as a basis for standing unless there are additional things to them.

02:33 - 20.224 But that doesn't mean that they can't rely on something else to give them standing.

02:33 - 22.593 They just can't rely on that statute to give them standing.

02:33 - 28.299 Why is what what forces what ambiguity in there

02:33 - 31.569 that you can find within the four corners of the language allows me

02:33 - 35.239 to look beyond that to cases that preceded it,

02:33 - 39.109 or some other external force to define legislative intent.

02:33 - 43.581 Justice Robson, I don't think there is ambiguity.

02:33 - 46.584 And let me go back to the point I made about if I can, can you make that

02:33 - 50.521 no ambiguity argument without referencing prior case decisions

02:33 - 55.025 with me and tell me in the statutory language, just look at the language

02:33 - 56.460 and tell me what

02:33 - 00.130 what you think that language means, based on what the words

02:34 - 03.133 are chosen by the General Assembly without reference to a prior decision.

02:34 - 03.901 Sheriff court.

02:34 - 08.072 So I'm going to flip the language around because the language says unless you have

02:34 - 11.242 legal custody, you don't have standing under this section.

02:34 - 12.109 Under this section.

02:34 - 14.011 Right. Which to me, if you flip it around,

02:34 - 16.113 if you have legal custody, you have standing.

02:34 - 19.116 That's a that's an award of standing.

02:34 - 22.920 If you have legal custody, that's unambiguous, that's clear.

02:34 - 26.724 And that's our beliefs certainly have a statute clearly confirms

02:34 - 30.961 that was the belief of the, of the Superior Court in this case was

02:34 - 35.232 that they were constrained to apply MRF because it was this

02:34 - 38.235 this doesn't exist in a vacuum, but the statute clearly provides for that.

02:34 - 41.238 If you if you have if you have custody,

02:34 - 44.942 you can rely on this section for purposes of standing. Yes.

02:34 - 45.976 That's correct. Okay.

02:34 - 49.380 If you don't have custody, you don't have standing.

02:34 - 52.716 Or if you don't have custody, you can't rely on this section for standing.

02:34 - 54.885 If you don't have legal custody, you don't have standing.

02:34 - 58.589 Where does that say that the statute I referenced

02:34 - 01.625 the language, unless a foster parent, adoptive parent, etc.

02:35 - 03.661 has been awarded legal custody,

02:35 - 06.163 nothing in this section gives them nothing in this section.

02:35 - 08.332 That's that's back to just on his point.

02:35 - 12.202 I think we have to recognize that this this line of cases did exist.

02:35 - 13.737 We did have why?

02:35 - 16.740 Because this this section, I believe,

02:35 - 21.478 directly affects this was let me back up.

02:35 - 22.746 The juvenile act doesn't define

02:35 - 25.082 who are parties in the case, but case law has established

02:35 - 28.052 that parties to a dependency case are the parents parent's legal custodian,

02:35 - 30.721 and the person whose care control is in question.

02:35 - 32.790 That's been established. We,

02:35 - 35.793 so we have

02:35 - 39.596 beginning in 1988, beginning in 1989, the Superior Court

02:35 - 41.732 creates this exception to that and says,

02:35 - 44.134 we all know that this has been the way it is,

02:35 - 47.871 but we're going to add another layer of another

02:35 - 51.475 class of people who have some standing in a dependency case.

02:35 - 55.612 And that's what Mitch was, and that's what Griffin was prior to that,

02:35 - 58.015 there was no,

02:35 - 01.819 there were no there was no grant of rights to foster parents at all in the Juvenile

02:36 - 07.291 Act in 1998, the Juvenile Act was amended to give foster parents rights.

02:36 - 08.525 It gave them the right to notice.

02:36 - 12.863 It gave them the right to be heard, but it didn't necessarily give them standing.

02:36 - 14.298 I'm sorry.

02:36 - 16.500 It didn't necessarily give them a standing.

02:36 - 17.835 It did not give them a standing.

02:36 - 20.070 It says it's it's our belief.

02:36 - 23.574 And I think it was the belief of the Superior Court in this case that that

02:36 - 27.745 it says unless you have legal custody, you don't have stand under this section.

02:36 - 28.345 So that's what I'm sorry.

02:36 - 31.415 You're the history tour is interesting to me.

02:36 - 32.950 But from the statute

02:36 - 37.020 under the Statutory Construction Act, I don't get to look for the history tour.

02:36 - 42.259 If the language is is clear and unambiguous, the history tour

02:36 - 45.829 is at all the nature and occasion of the statute why it was enacted.

02:36 - 48.999 And, you know, we can look at decisions there, but

02:36 - 52.002 if the language is clear, we don't get to do the history tour.

02:36 - 54.538 Yeah, I appreciate that justice, perhaps.

02:36 - 57.541 And and it's our position that the language is clear.

02:36 - 59.076 It's our position that,

02:37 - 01.145 there's no other

02:37 - 04.148 section in the juvenile act that would that would,

02:37 - 09.353 grant foster parents, adoptive parents, any of these people standing at all

02:37 - 12.856 and any, in any dependency case,

02:37 - 14.591 the fact that it says nothing,

02:37 - 17.060 there's there's nowhere else that this could come from,

02:37 - 19.897 what could come from common law, it could come from William Penn parking.

02:37 - 23.367 It could come from I mean, we have a lot of common law,

02:37 - 27.538 out there in terms of people's ability to have standing to intervene in all kinds

02:37 - 29.573 of judicial procedures. Right?

02:37 - 33.010 You're you're you're saying this language excludes all of that.

02:37 - 36.947 Clearly and unambiguously without legal custody? Yes.

02:37 - 41.718 The reason that I think that this is important and the reason that I told you

02:37 - 42.453 I want to address this

02:37 - 43.954 from the perspective of foster children

02:37 - 46.957 is because if the decision of the Superior Court is affirmed,

02:37 - 48.926 we have a situation where,

02:37 - 51.695 people who

02:37 - 56.433 identify themselves as prospective adoptive parents now get to come to court,

02:37 - 59.736 and now they get to argue that they are prospective adoptive parents

02:37 - 03.640 and they have some standing in the case, the standing that's been outlined,

02:38 - 06.677 and Mitch and Griffin and MRF is the standing to challenge

02:38 - 09.680 the removal, of the child from their home.

02:38 - 13.584 But if we are in this situation.

02:38 - 16.920 This will undoubtedly,

02:38 - 20.757 undoubtedly lead to delays in permanency for children, as foster parents litigate

02:38 - 25.295 the issue of whether they qualify as pre adoptive or prospective adoptive parents.

02:38 - 31.001 If the trial court denies that request like it did in this case, the the pre

02:38 - 34.037 adoptive parent gets an opportunity to go to superior Court.

02:38 - 35.572 So excuse me.

02:38 - 40.043 Yes. Pre adoptive parent would be a family

02:38 - 43.380 that has particularly in an agency adoption.

02:38 - 46.650 You would have to have the approval of the agency.

02:38 - 48.085 Correct.

02:38 - 51.421 These are highly fact specific analyzes

02:38 - 57.227 just to say that the prospective adoptive family in this particular case

02:38 - 00.998 no longer is in possession or control of that child.

02:39 - 03.166 Is this family.

02:39 - 06.003 You are correct that the child was removed

02:39 - 08.972 in, in September of 2022.

02:39 - 09.806 Okay.

02:39 - 12.743 And now we have a second family.

02:39 - 14.244 Has the agency

02:39 - 18.849 indicated that this family could now be a prospective adoptive family?

02:39 - 21.652 I believe the agency has, and I believe that

02:39 - 24.988 the trial court has as well, because, of course, we have S.W.

02:39 - 28.158 at the intermediate appellate court level, which says

02:39 - 31.395 prospective adoptive parents have standing here.

02:39 - 35.165 We now have a hearing that has that is scheduled

02:39 - 38.001 as a result of the Superior Court's decision in this case,

02:39 - 41.071 where the former foster parents

02:39 - 47.411 have counsel, they have standing, and the current foster parents do as well,

02:39 - 50.581 because the issue is, will the child be removed from their home.

02:39 - 54.418 And so now we have multiple layers of foster parents are former foster

02:39 - 58.755 parents who have standing to challenge this very narrow issue.

02:39 - 01.124 I'm not saying that this is standing in the entire case.

02:40 - 05.963 It's a narrow issue, but what it's done is delayed permanency for this child.

02:40 - 07.431 And it will.

02:40 - 09.066 How how how does that happen, though?

02:40 - 11.034 Because these people were entitled,

02:40 - 14.805 at least under the statute, to a notice, an opportunity to be heard, right? Yes.

02:40 - 18.942 The only the only thing standing gets them beyond that is an opportunity to appeal,

02:40 - 22.646 which has delayed this case by many months.

02:40 - 26.850 I understand, but but you were saying that the mere activity

02:40 - 29.853 of the hearing was delaying, but the hearing could happen with

02:40 - 32.823 the standing issue was only with respect to whether they get appeal rights.

02:40 - 33.857 That's correct.

02:40 - 35.892 Yes, that's right. But I mean, that's what it is.

02:40 - 39.262 This child has now been in the current foster home for two plus years.

02:40 - 41.264 Permanency could have been achieved.

02:40 - 45.202 The case was nearly ready to close prior to the Spirit court's decision

02:40 - 46.703 in this case several months ago.

02:40 - 50.841 It has stayed up, and it will continue to stay open while this issue is resolved.

02:40 - 54.011 That will happen for countless children across the Commonwealth.

02:40 - 00.684 The And keep in mind, just like in this case,

02:41 - 03.320 this issue of intervention can be raised at any point.

02:41 - 07.224 The the procedural posture here was

02:41 - 10.227 that the child had actually already been removed.

02:41 - 13.630 The foster parents did not seek to intervene.

02:41 - 17.968 The foster parents came back at a later point within a few weeks.

02:41 - 22.139 But after a hearing on the removal and at that point sought to intervene,

02:41 - 24.708 there's as if you look at the Superior Court's

02:41 - 27.711 decision in this case, that's a discussion that they have.

02:41 - 30.747 They say the rules of civil procedure don't require and they say

02:41 - 33.950 intervention can happen at any point.

02:41 - 37.120 Our fear is that if the Superior Court's decision,

02:41 - 38.689 which the Superior Court is saying,

02:41 - 42.192 we don't think our decision can withstand scrutiny of the Supreme Court,

02:41 - 46.263 if this court affirms that decision, that

02:41 - 50.100 will be the the green light for any foster parent.

02:41 - 54.071 So, again, we we recognize that they serve a very important role.

02:41 - 55.906 But we may have foster parents

02:41 - 59.876 who have cared for a child for nine months or ten months who litigate this issue

02:41 - 02.879 and then appeal this issue, and then things are delayed.

02:42 - 05.549 And, you know, do we have a circumstance?

02:42 - 06.550 I apologize for interrupting

02:42 - 08.318 because you write something interesting about the delay.

02:42 - 10.420 I notice the delay in seeking intervention.

02:42 - 12.189 Is that an issue that's in front of us?

02:42 - 14.725 And as to whether they acted timely in seeking intervention,

02:42 - 15.926 it was an issue at the Superior Court.

02:42 - 18.361 It's not an issue that you took that this court took.

02:42 - 19.429 We didn't we didn't.

02:42 - 20.964 Did you ask us to take we did not.

02:42 - 22.532 We did not just Robson.

02:42 - 30.640 The, Is the goal still reunification?

02:42 - 33.009 Are you moving for termination,

02:42 - 35.779 justice Daugherty rights have been terminated already.

02:42 - 38.682 Okay. That matter has been appealed.

02:42 - 41.384 The Superior Court has affirmed the termination.

02:42 - 45.655 This child is ready for adoption and has been for quite some time.

02:42 - 49.993 Have you done two family studies on both alleged pre adoptive families?

02:42 - 53.697 So the first the former foster.

02:42 - 54.898 But I'm referring to this former

02:42 - 58.201 foster parent had an adoption caseworker who was assigned to.

02:42 - 01.304 I'm not sure where the adoption caseworker was in that process.

02:43 - 04.808 The second foster home, the current foster home,

02:43 - 08.111 they have done everything necessary to complete the adoption of the child.

02:43 - 12.682 We're just waiting on the outcome of this, of this situation. And,

02:43 - 18.855 Unless there's

02:43 - 22.092 any other questions I've covered, we think that this is clear.

02:43 - 25.395 We think that a decision affirming this will lead to further delays.

02:43 - 29.132 And, with nothing further.

02:43 - 31.768 Thank you.

02:43 - 34.771 Thank you, thank you.

02:43 - 39.643 Striker.

02:43 - 42.078 Good afternoon, Your Honor.

02:43 - 43.780 My name is Alexandria Streicher.

02:43 - 45.782 I represent the Allegheny County Office

02:43 - 48.752 of Children, Youth and Families in this matter.

02:43 - 50.954 I would primarily echo what Mr.

02:43 - 52.556 Welsh has stated thus far.

02:43 - 54.124 Not to belabor the point.

02:43 - 59.162 We believe section 6336.1 A is absolutely crystal clear

02:43 - 03.767 without legal standing, a pre, adoptive or foster parent cannot.

02:44 - 05.468 Without legal custody,

02:44 - 07.938 a foster parent cannot have standing under the juvenile act.

02:44 - 08.471 It is.

02:44 - 12.342 I ask you to, similar question to what Justice Donohue asked your colleague.

02:44 - 14.377 Pardon my interruption.

02:44 - 15.812 What the on this. Nothing.

02:44 - 16.413 In this section.

02:44 - 20.684 Language is there is there a reasonable interpretation of that

02:44 - 25.856 that would suggest the legislature was just confining,

02:44 - 30.627 confining the analysis there to what?

02:44 - 31.728 What's in that

02:44 - 35.732 provision?

02:44 - 38.335 Indicating that other,

02:44 - 41.605 other, rules for standing survived

02:44 - 44.641 is that is that a plausible reading in your judgment?

02:44 - 46.776 Your honor,

02:44 - 50.413 as counsel stated, this extending exception

02:44 - 54.985 has been in effect in the jurisprudence for many, many decades.

02:44 - 58.622 If the legislature wanted to memorialize

02:44 - 01.858 this exception within the Juvenile Act, they would have done so.

02:45 - 04.995 And they clearly made a deliberate choice, not to.

02:45 - 07.797 And that's really significant.

02:45 - 10.800 How do you know they didn't do that?

02:45 - 16.172 It I understand all the arguments about the importance of permanency.

02:45 - 17.173 And I get that.

02:45 - 20.176 And I know how this tends to work against it. But,

02:45 - 25.248 why were they talking about standing at all here?

02:45 - 28.351 I mean, you know, you're suggesting

02:45 - 31.588 that there's some clarity to this under the law, if,

02:45 - 37.460 a person has a statutory notice, an opportunity to be heard

02:45 - 41.731 because that person then, implicitly have standing,

02:45 - 46.236 did the legislature have to say anything about the fact

02:45 - 50.340 that notice an opportunity to be heard did not confer standing?

02:45 - 51.975 Your honor,

02:45 - 55.312 we believe if the legislature intended to award standing

02:45 - 58.882 specifically, they would have used the word standing and they didn't.

02:45 - 01.885 That use notice and the opportunity to be heard.

02:46 - 06.222 The legislature was this was floating around in the courts

02:46 - 11.027 for decades prior to the enactment of this legislation.

02:46 - 14.664 And they made a deliberate choice not to be specific within the statute

02:46 - 18.301 that, oh, there is no prospective adoptive parent exception

02:46 - 21.671 within the Juvenile Act anywhere.

02:46 - 25.108 But then why use the phrase why use phrase?

02:46 - 29.312 Nothing in this provision shall confer standing.

02:46 - 33.750 Doesn't that imply that there is another avenue,

02:46 - 37.620 through which standing may be,

02:46 - 40.056 recognized?

02:46 - 41.925 Not necessarily. Right.

02:46 - 45.628 It's significant that the Juvenile Act is the governing statute

02:46 - 47.864 for dependency cases in general.

02:46 - 51.101 That would be the arena in which to address foster parents standing

02:46 - 53.036 if it existed.

02:46 - 57.173 Did the noted this notice and here opportunity to be heard statute.

02:46 - 01.511 Did that exist in a different form before this.

02:47 - 04.080 Nothing in this section language should be there.

02:47 - 05.081 Not to my knowledge.

02:47 - 06.649 Are you talking chronologically?

02:47 - 08.918 Yes. Was it prior to this section?

02:47 - 10.754 Was there any section of the juvenile act

02:47 - 13.757 that said these people get notice and an opportunity to be heard?

02:47 - 14.958 Not to my personal, not so.

02:47 - 17.961 It was all it was all one section enacted at one time?

02:47 - 21.698 Yes. The the entire juvenile act was enacted in 1998.

02:47 - 23.400 And and you don't see

02:47 - 26.703 a plausible construction of that to the for the General Assembly to say

02:47 - 29.305 we think certain people should have notice

02:47 - 32.709 of these proceedings and an opportunity to appear and be heard,

02:47 - 38.281 but we don't think we want that to give them standing in and of itself

02:47 - 41.751 that they would need to have standing some other way.

02:47 - 44.554 Yes, Your honor, notice of the hearing

02:47 - 47.557 and opportunity to be heard are different.

02:47 - 50.226 Consideration than standing generally.

02:47 - 50.527 Right?

02:47 - 54.297 Because standing affects the appeals like you, like you're calling the same justice

02:47 - 58.168 process, and presumably also to call witnesses at the in the trial court.

02:47 - 59.869 Right. Exactly.

02:47 - 03.139 To present evidence, to cross-examine witnesses, to appeal matters.

02:48 - 07.277 Standing is a very, very serious matter, and it's not something that courts

02:48 - 08.578 take lightly.

02:48 - 10.013 It's really significant.

02:48 - 14.551 The Juvenile Act does not use the word standing in regard to awarding

02:48 - 18.955 prospective adoptive parents or foster parents without legal custody.

02:48 - 22.926 So. So how would you have read this?

02:48 - 26.996 How would how would you have us read the statute unless.

02:48 - 30.100 Unless what?

02:48 - 34.170 Unless a person has legal custody,

02:48 - 37.474 your honor, no standing.

02:48 - 37.841 Is that.

02:48 - 40.844 Is that how you want us to read this?

02:48 - 43.980 For the classes listed within that

02:48 - 47.383 section, which includes foster parents and printed off their parents? Yes.

02:48 - 50.386 Without the legal custody, they cannot have standing.

02:48 - 54.023 So, in essence, what you're sharing with us

02:48 - 56.459 is the language.

02:48 - 59.762 Nothing in this section means the statute is now permitting

02:49 - 04.033 foster parent to have notice and to appear.

02:49 - 08.037 But within this section, the General Assembly is advocating

02:49 - 11.040 the judicially created constant

02:49 - 14.644 concept of pre adoptive foster parent and stating

02:49 - 19.182 despite the fact that we're giving them notice and the ability to appear

02:49 - 22.485 is not implicit standing.

02:49 - 24.420 In fact, the only way you get standing through

02:49 - 27.090 the statute is having legal custody.

02:49 - 29.859 That's exactly right. Yes, that's what I thought. Counsel.

02:49 - 33.062 What are you asking us to do as appellants?

02:49 - 36.065 What happens next if we agree with you?

02:49 - 41.004 Well, broadly speaking, or in the terms of this specific case, both.

02:49 - 42.038 Okay.

02:49 - 46.843 Broadly speaking, we as the county agency are seeking clarity from this court.

02:49 - 50.280 We have a number of responsibilities under the Juvenile Act

02:49 - 53.383 that we have to follow in regard to the families that we serve.

02:49 - 57.387 We are seeking clarity so we could administer that correctly

02:49 - 01.224 and justly, and we can follow the rules as prescribed by the statutory law

02:50 - 02.759 and by the courts.

02:50 - 04.894 We're seeking clarity here today on a broad scale.

02:50 - 08.898 In this particular case, we are asking the court

02:50 - 13.870 in finding that the standing exception has been abrogated, that

02:50 - 18.174 the the former foster parents in this particular matter

02:50 - 22.879 do not have standing as prospective adoptive parents and do not have a right

02:50 - 26.816 to intervene upon that basis so that you can complete the adoption.

02:50 - 30.220 But the family that currently possesses the child?

02:50 - 34.891 Yes, the agency is in favor of completing adoption with the child's

02:50 - 38.561 current foster family, who are legal, who have legal custody.

02:50 - 42.232 No, Your Honor, the agency retains legal custody at this time, right.

02:50 - 45.168 Which is typical of dependency case. Yes. All right.

02:50 - 48.071 Thank you. All right.

02:50 - 50.607 If there is nothing further, I press on my brief.

02:50 - 52.508 Thank you,

02:50 - 53.576 thank you.

02:50 - 56.212 Just for pony.

02:50 - 58.281 Good afternoon, Your Honors.

02:50 - 01.351 I'm here on behalf of the mothers whose rights have been terminated,

02:51 - 03.186 as you've already heard. And,

02:51 - 07.824 as far as the questions that have been asked so far,

02:51 - 11.127 the issue of standing

02:51 - 16.733 is specific at 63, 36.1, but it does references you to other parts

02:51 - 20.303 of the Juvenile Act, specifically 6351,

02:51 - 24.240 the dispositional hearing wherein the court has the ability to,

02:51 - 28.411 give temporary legal custody or permanent legal custody

02:51 - 31.714 to a foster parent or a pre adoptive parent.

02:51 - 37.987 There's also section 6357, which is the rights and duties of the legal custodian.

02:51 - 43.860 So this not 63, 36.1 is not the only place where we're addressing legal custody.

02:51 - 46.963 And I did in our brief and my colleague is here,

02:51 - 49.299 but I do want to introduce her name is Andrea Groh.

02:51 - 51.301 She is present as well.

02:51 - 54.637 And we do find ourselves in a very unique position here today

02:51 - 00.310 because by rule of Appellate Procedure 908, we are acting,

02:52 - 02.845 we're on the side of the appellant in the argument,

02:52 - 06.015 but we're actually recognizes appellees in this case.

02:52 - 10.887 And, the other unique thing is this is the first time in my 26 year

02:52 - 13.890 history of working in child welfare in Allegheny County,

02:52 - 17.593 where you're seeing the county solicitor, the guardian ad litem for the child

02:52 - 19.662 and the parent attorney all in agreement that.

02:52 - 25.268 So, but we did point out in our brief, and I do want to go to this

02:52 - 29.639 because as though was pointed, the Adoption Safe Families Act became law

02:52 - 35.678 in 1998 and our Juvenile Act was changed to reflect,

02:52 - 39.282 what we referenced in our brief regarding the,

02:52 - 42.051 portion of notice and hearing.

02:52 - 46.589 We cite to section 104 and section 475 five,

02:52 - 51.027 the Social Security Act and the language that we have is 6336.

02:52 - 53.429 And one is very similar to that language.

02:52 - 55.865 And I'm just going to read it briefly.

02:52 - 00.002 So it says in here, the foster parents of any other child and any pre adoptive

02:53 - 04.340 parent or relative providing care for the child are provided with notice of

02:53 - 08.478 and an opportunity to be heard in any review or hearing to be held

02:53 - 12.482 with respect to that child, except that this subpar paragraph

02:53 - 16.252 shall not be construed to require that any foster parent, pre,

02:53 - 20.123 adoptive parent, or relative providing care for the child be made a parties

02:53 - 24.160 to such a review or hearing solely on the basis of such notice.

02:53 - 26.195 An opportunity to be heard.

02:53 - 29.198 6336 one is the general Assembly

02:53 - 32.068 putting this into the juvenile Act?

02:53 - 34.470 I also want to point out that there was the,

02:53 - 37.807 hearings held when Aspo was

02:53 - 41.010 enacted, and we have cited that in our brief as well.

02:53 - 46.015 And, it's, I think, important to note that what they are talking about,

02:53 - 50.119 opportunity and notice is because they wanted foster parents

02:53 - 53.456 or pre adoptive parents to be able to come to the court

02:53 - 55.825 and give information about the child because

02:53 - 59.362 the child is in their physical custody, not their legal custody,

02:53 - 00.430 and therefore

02:54 - 04.200 they might have very relevant information to provide to the trial judge

02:54 - 07.970 as to what is actually in the child's best interest, so that notice,

02:54 - 11.841 an opportunity to be heard was to serve that purpose and ask that.

02:54 - 15.511 And we believe that's why the General Assembly, in the way they have

02:54 - 23.286 set up the, the statute in in 63, 36.1, but also reference 9 to 63 and 51.

02:54 - 27.390 The dispositional hearing, as I mentioned, at 63, 57, the

02:54 - 31.694 rights and duties of the of a

02:54 - 33.763 the Guardian.

02:54 - 36.799 Or excuse me, the rights and duties of a legal custodian.

02:54 - 40.703 So we think it is very clear

02:54 - 43.573 and we haven't yet talked about the cases that happened.

02:54 - 48.911 I want to point out quickly that, 63, 36.1 has been amended

02:54 - 52.081 three times since 1999, when it was enacted.

02:54 - 54.750 The first time was in 2002.

02:54 - 59.288 And at that time they argued or they added the subordinate conjunction

02:54 - 03.559 of unless you are placed in legal custody, do you have standing?

02:55 - 06.496 And that's where that started.

02:55 - 09.499 Counsel, before before you move on to another topic,

02:55 - 12.435 in the earlier part of your argument, did

02:55 - 15.771 I understand correctly that we could read this provision?

02:55 - 18.774 Nothing in this section shall give

02:55 - 23.646 may in fact refer to the to the proposition that there are

02:55 - 29.252 other sections within the Juvenile Act that may confer custody.

02:55 - 33.756 I think that's a fair read, but I the reason I'm pointing out in 2002,

02:55 - 37.994 when this was amended again, I think our General Assembly

02:55 - 42.164 foreclosed bad by saying unless you have legal custody

02:55 - 47.336 and again, you can give legal custody to a foster parent or adoptive parent

02:55 - 51.707 or now kinship because that's the next time we change the actual

02:55 - 55.278 or the 6330 6.1 was amended

02:55 - 59.615 was February of this year to add in kinship resources as well.

02:56 - 02.985 Anyway, but I don't know how that helps your argument,

02:56 - 07.390 because we know because we're here that the Superior Court

02:56 - 10.760 and the trial courts have been allowing intervention.

02:56 - 15.231 And yes, it was so clear what the legislature intended

02:56 - 16.632 and that wasn't happening.

02:56 - 19.168 You would think that they would have clarified it.

02:56 - 20.002 But what?

02:56 - 25.541 Why are you rejecting my interpretation based upon your earlier statements

02:56 - 28.210 that what the legislature was referring to here

02:56 - 32.248 were other provisions within the Juvenile Act that might confer,

02:56 - 35.151 standing?

02:56 - 39.255 Well, I think the that would take care of my problem with what does this mean,

02:56 - 44.594 except as provided in this provision, they may mean there are other provisions

02:56 - 47.830 in the statute that allows

02:56 - 51.400 I understanding it clearly in the disposition

02:56 - 54.403 of portion of the 6351,

02:56 - 58.207 the court has the authority to make somebody

02:56 - 00.476 a legal custodian on a temporary basis

02:57 - 04.380 or permanent basis to different sections of that same portion of it.

02:57 - 07.383 So yes, the court can do that, but

02:57 - 11.287 but what we haven't addressed yet is the case law that cites from the time

02:57 - 14.457 six 3336 one was in place

02:57 - 18.961 that the intermediate appellate court did not address, which is the whole line.

02:57 - 24.266 This court addressed this issue in GC and counsel and a number of other cases.

02:57 - 28.170 It and you can see they were

02:57 - 33.542 interpreting 6330 6.1 to mean exactly what we're putting forward here today.

02:57 - 37.947 Is that there if you have not been awarded legal custody

02:57 - 43.452 and another provision of the act, 63 and 51 in particular, and 63, 57 the

02:57 - 47.657 rights and duties of a legal custodian, then it is foreclosed.

02:57 - 51.494 So I think you have to also keep in mind that, Mr.

02:57 - 55.131 Welsh was pointing out that when this idea of,

02:57 - 58.634 legal standing was,

02:57 - 02.505 for pre adoptive or prospective adoptive parents, it was 1989

02:58 - 05.608 and we had not had the Adoption Safe Families Act.

02:58 - 08.611 We did not have 6330 6.1.

02:58 - 12.615 We didn't I don't believe we had 6351 about

02:58 - 16.719 temporary and permanent legal custody being awarded to other people.

02:58 - 21.223 So I think even though, Justice Robson didn't want to go on the history tour,

02:58 - 24.226 I do think it's it's important for how this,

02:58 - 27.063 how this is where we are, where we are now.

02:58 - 28.898 Well, well, thank you for bringing this back to me.

02:58 - 34.470 I, I think I understand what you're I think I understand

02:58 - 39.775 better what your side's position is, but it seems to be relying on.

02:58 - 43.045 And I think it necessarily relies on the idea

02:58 - 46.615 that the statute is a comprehensive, all encompassing fox.

02:58 - 50.886 That leaves no room for common law anything.

02:58 - 55.791 And therefore, if you don't have statutory standing, if you can't cite

02:58 - 59.795 to a provision in the code that gives you standing,

02:59 - 03.666 the General Assembly,

02:59 - 05.735 intended that you not have it,

02:59 - 07.837 meaning that there's that there's no even though

02:59 - 09.972 this court of the Superior Court has previously recognized

02:59 - 12.975 some common law standing principles associated with the code.

02:59 - 18.247 Now we are supposed to interpret this language

02:59 - 22.218 as being the General Assembly's intent to say no.

02:59 - 25.254 You either have statutory standing or nothing at all.

02:59 - 29.225 Is that that that seems to be the anchor of your argument? Yes.

02:59 - 30.826 That is that's correct.

02:59 - 33.362 That's what we believe the law is at this stage.

02:59 - 36.832 And and I do need to point out that the interest

02:59 - 40.136 that we're talking about for biological parents is really clear.

02:59 - 42.171 They have a fundamental,

02:59 - 45.307 liberty interest, a due process, interest in their children.

02:59 - 48.544 As we pointed out in our brief, that's just not true

02:59 - 52.615 for pre adoptive or prospective adoptive parents or foster parents.

02:59 - 56.685 Their rights are solely created based on statute itself.

02:59 - 59.622 You could look right now if you wanted to pa.gov

02:59 - 03.025 and see all the rules and regulations that are applicable to anybody

03:00 - 06.028 who wants to be a foster parent or an adoptive parent.

03:00 - 07.897 So their rights are derivative.

03:00 - 11.100 And so the statute does define where,

03:00 - 14.103 where that, that right is coming from.

03:00 - 18.908 So I don't believe it's quite the stretch that the when the common law,

03:00 - 22.545 standing standard was being introduced by the court

03:00 - 27.716 in 1989, before we had asked them before we had these changes to the juvenile act.

03:00 - 32.855 I think these changes are a direct result of of the concept of trying

03:00 - 37.860 to recognize the interest that the foster parent or adoptive parent has,

03:00 - 41.397 which is the opportunity to be heard and be able to talk about what's happening

03:00 - 41.964 with the children.

03:00 - 46.101 But it does not put them on the same level as what a parent's interest

03:00 - 47.102 is in their kids.

03:00 - 50.139 Does anyone have any more questions for me?

03:00 - 51.874 So pony, thank you very much.

03:00 - 54.877 Let's hear from this McMorrow.

03:01 - 01.483 May it please the court.

03:01 - 04.587 My name is Brooke McMorrow and I represent appellees,

03:01 - 08.991 and I'm going to start with the,

03:01 - 12.995 abrogation.

03:01 - 17.399 The enactment of 66336.1 A does

03:01 - 21.670 not and need not abrogate the prospective adoptive parent exception.

03:01 - 25.441 The case law has carved an extremely narrow,

03:01 - 28.277 exception to permit the limited participation

03:01 - 32.147 of a foster parent who has attained prospective adoptive parent status.

03:01 - 34.850 And how does that survive the adoption of this statute?

03:01 - 35.651 Council is.

03:01 - 39.321 It seems like when the legislature adopted

03:01 - 42.324 this language in, was it 98?

03:01 - 43.525 Yes. That's correct.

03:01 - 46.795 That that they did away with that and that the courts should have,

03:01 - 50.633 should have woken up and smell the coffee

03:01 - 53.636 at that point that this exception was was done.

03:01 - 55.237 Why is that not the case?

03:01 - 59.408 Well, Your Honor, I, I believe that,

03:02 - 02.811 in even in subsequent cases,

03:02 - 07.216 there was a recognition that there's a

03:02 - 12.454 we cannot, ignore the Polestar being the best interests of the child.

03:02 - 17.126 And so the foster parents bring something else

03:02 - 20.863 to the table, and we need to we can't overlook that.

03:02 - 24.366 And so if you look at,

03:02 - 27.369 in the interest of GC,

03:02 - 34.076 and, In 1996,

03:02 - 37.079 that was actually beforehand,

03:02 - 39.615 Justice Newman talked about the best interest,

03:02 - 42.618 but then it carries over into

03:02 - 47.456 in 2018, with MRF the third

03:02 - 51.460 where they affirmed the

03:02 - 53.896 the interest this this liberty

03:02 - 57.299 interest that foster parents have in that

03:02 - 01.737 they are suffering a substantial and direct injury

03:03 - 07.276 by virtue of children being removed from their from their physical custody.

03:03 - 11.447 But didn't the legislature indicate in adopting the statute

03:03 - 15.751 that something that's something that's, intuitive, right.

03:03 - 19.788 That the law doesn't really care about, so to speak, about the foster

03:03 - 20.956 parents interest?

03:03 - 23.025 Who cares about the child? Right.

03:03 - 28.597 So by by providing the foster parents the opportunity to be heard

03:03 - 32.401 and to get notice that the legislature

03:03 - 34.570 afforded adequate

03:03 - 37.573 opportunity for the trial court

03:03 - 39.908 to discern what's going on

03:03 - 44.680 and and make its determination without affording,

03:03 - 49.284 clients like yours standing, which could delay permanency.

03:03 - 54.423 Right, Your Honor, but the issue, especially in this case,

03:03 - 57.192 is they really didn't have an opportunity to be heard.

03:03 - 01.563 If you review the the opinion they they didn't get to put on anything.

03:04 - 04.433 They, they were they were shut out.

03:04 - 07.236 They didn't testify in the juvenile court.

03:04 - 09.438 They, they were not allowed to say anything.

03:04 - 10.773 They received notice. Right?

03:04 - 12.541 They did. And they were there and they wanted to speak

03:04 - 14.543 and they weren't permitted to.

03:04 - 16.111 But that's a different issue.

03:04 - 20.249 But but that's what I was just that's a that's a trial court error at that level.

03:04 - 23.519 That has nothing to do with intervening.

03:04 - 25.020 Understood.

03:04 - 26.789 It was just a question that was posed.

03:04 - 28.791 So that's why I mean, they had

03:04 - 31.093 they had the notice and the opportunity to be heard.

03:04 - 32.561 They tried to be heard.

03:04 - 34.396 Then they intervened after that.

03:04 - 38.267 And I think it's also important to, well, they had notice, but they didn't

03:04 - 39.501 have the opportunity to be heard.

03:04 - 39.935 Yeah.

03:04 - 42.838 It's not really in front of us right now. Right.

03:04 - 45.541 But it is a part of this, of the law.

03:04 - 48.210 I mean, we've been talking about that the whole time that they have the notice

03:04 - 52.081 and the opportunity to be heard, and therefore they don't get legal.

03:04 - 53.615 They don't get legal standing.

03:04 - 55.184 And it's all part and parcel.

03:04 - 57.553 The same. Trial court denied intervention.

03:04 - 01.623 That's correct, that they provided insufficient grounds.

03:05 - 02.591 I mean,

03:05 - 05.194 I mean

03:05 - 08.664 that just it's I mean, that's the trial court

03:05 - 12.835 who, conducted the hearing, where they were present

03:05 - 16.472 but didn't have an opportunity to speak, also heard their intervention.

03:05 - 19.641 And, yes, what was a motion

03:05 - 22.644 denied on, statutory grounds?

03:05 - 25.414 That's correct. Counsel. Yes.

03:05 - 30.152 My concern in our analysis, how should we take into consideration

03:05 - 34.256 the fact that the agency removed the children from your client's care

03:05 - 37.759 for being inappropriate and changing doctor's appointments

03:05 - 41.630 and not cooperating with the child?

03:05 - 44.166 Service providers?

03:05 - 47.269 And if so, how is that to be analyzed as well?

03:05 - 50.272 Is what is your legal theory that gives you standing?

03:05 - 54.843 So I think that, let me take the first part,

03:05 - 59.615 which is about them acting inappropriately.

03:06 - 02.885 All it takes is for one,

03:06 - 07.523 perhaps angry or disillusioned caseworker to say whatever they want

03:06 - 10.492 and make baseless allegations against people

03:06 - 13.495 who never had the opportunity to defend themselves.

03:06 - 15.397 It was never proven.

03:06 - 19.001 It was just taking one person's word without ever getting to hear

03:06 - 22.437 from my clients about their side of the story is justice.

03:06 - 22.838 Thank you.

03:06 - 25.941 That should have been an appeal to Superior Court for an abuse of discretion.

03:06 - 28.010 That's not we're now here.

03:06 - 31.146 You're trying to say that your client has a has

03:06 - 34.283 a right to standing, a statutory right to standing,

03:06 - 38.086 despite the fact that the child has not been in your client's possession

03:06 - 42.090 for a couple of years, and that this is an agency adoption

03:06 - 46.628 and the agency has removed the child from your clients

03:06 - 50.065 based upon these allegations, which the court accepted.

03:06 - 53.569 So we can only take the record as it is under.

03:06 - 57.506 So I'm asking you, tell me, how are we to consider that

03:06 - 01.677 in our analysis as to whether you, your clients, I should say,

03:07 - 05.280 have standing despite being out of,

03:07 - 08.016 control of this child for a couple of years,

03:07 - 10.352 they should have standing because they have

03:07 - 13.922 they have suffered a direct, substantial injury

03:07 - 17.025 by removal of that child, as has the child.

03:07 - 19.861 They were bonded. They lived together for two years.

03:07 - 22.231 They raised this child since she was one month old.

03:07 - 24.733 How old's the baby now? For.

03:07 - 26.635 Okay so and the pre adopted

03:07 - 30.505 this new family has had the child an equal amount of time correct.

03:07 - 31.940 Yes your honor okay.

03:07 - 35.143 Yes. But there's there's no denying that.

03:07 - 38.113 And unfortunately we we have to follow that.

03:07 - 40.882 The courts obviously are not a perfect system.

03:07 - 41.650 Okay.

03:07 - 43.051 And we're dealing here. Perfect.

03:07 - 44.553 But you're right, of course, general here.

03:07 - 47.556 Oh, no no no no, Your Honor, I'm not I'm not I'm not saying,

03:07 - 53.228 but, you know, I was I was saddened to hear that

03:07 - 57.332 it took so long to get a superior court decision.

03:07 - 00.902 My clients, we're to we're willing to jump in at any point.

03:08 - 06.275 They've waited and waited patiently to try to get this child back into their lives,

03:08 - 10.712 or at least have the opportunity to have standing in

03:08 - 13.782 what happens to this child that they bonded with, didn't you?

03:08 - 18.086 Again, I mean, I, I think the only issue we took was a purely legal question.

03:08 - 19.821 I think that's the only thing that we took.

03:08 - 22.924 So I'm not sure how, you know, I appreciate the background,

03:08 - 25.927 but procedurally, though, your client's didn't move to intervene.

03:08 - 28.497 Well, they they did after.

03:08 - 30.332 So let me take a step back. No.

03:08 - 33.902 The August you got notice of the, you know, got notice of the hearing, right.

03:08 - 36.772 Your client's got notice it wasn't to remove them.

03:08 - 38.707 It wasn't for removal. It was for something.

03:08 - 40.142 It was to terminate parental rights.

03:08 - 41.777 That's what it was scheduled for.

03:08 - 44.980 So you never got notice of the decision to remove the child?

03:08 - 47.382 Yes, but not in.

03:08 - 48.417 Not for that.

03:08 - 51.286 What was your earliest opportunity to intervene before the court?

03:08 - 54.289 To have your client's arguments being heard?

03:08 - 58.327 I unfortunately, I my associate had handled that

03:08 - 59.728 but I that's not a good answer.

03:08 - 01.797 I understand, Your Honor.

03:09 - 03.565 I believe it was early August.

03:09 - 04.900 I think I can answer this.

03:09 - 06.735 August 26th, 2022.

03:09 - 11.073 There was a hearing, and at the end of that hearing, the court decide

03:09 - 14.710 it was in the best interest of the child to be removed from your client's care.

03:09 - 17.813 And at that time, your clients were there with counsel

03:09 - 20.816 and did not attempt to intervene.

03:09 - 24.052 So, it seems like we have,

03:09 - 27.089 well, we you we didn't take.

03:09 - 27.723 We didn't take.

03:09 - 28.256 I mean, it's a

03:09 - 30.625 we didn't take the intervention question about whether you're

03:09 - 33.595 whether your clients moved quickly enough to intervene.

03:09 - 37.866 So, so I mean, it's a little frolic and detour, but I'm trying to understand.

03:09 - 40.569 I think I seem

03:09 - 44.072 to understand their argument a little bit better than I did when I came in here.

03:09 - 48.110 And the idea is that when the General Assembly passed

03:09 - 52.547 this statute, this section of the code,

03:09 - 57.052 then they intended through this language

03:09 - 00.989 to basically be this is the only the code.

03:10 - 03.492 It's a statutory proceeding.

03:10 - 06.495 If you're looking for standing, it has to be in the code.

03:10 - 09.431 If it isn't in the code, you don't have it.

03:10 - 11.700 There's no common law, anything like that.

03:10 - 13.935 These are statutory proceedings and it's in the code.

03:10 - 16.471 That seems to be their argument.

03:10 - 19.107 Your argument is no.

03:10 - 21.042 There can still be all kinds of common law

03:10 - 23.545 standing that we may have found beforehand.

03:10 - 26.548 Why is your argument better than theirs?

03:10 - 30.952 Because it's not clear and unambiguous based on the plain language.

03:10 - 34.723 It does not say that the pre adoptive or the

03:10 - 38.727 the adoptive parents,

03:10 - 41.396 the prospective adoptive, parents

03:10 - 46.101 exception is stricken or that we're not going to go by that.

03:10 - 48.870 It doesn't say anything about that.

03:10 - 51.606 So it's it's it's word soup.

03:10 - 54.810 You have to you're putting together an equation, okay.

03:10 - 58.613 You're parsing apart the words themselves, but no matter how

03:10 - 02.617 I put the words as I read it, it doesn't explicitly.

03:11 - 05.220 Well, maybe our precedent was bad.

03:11 - 08.857 Maybe, maybe, maybe we don't have a superior courts.

03:11 - 11.259 Maybe superior court precedent was bad.

03:11 - 13.628 That's an easier arguments, an easier argument.

03:11 - 17.132 The superior Court's precedent was bad because in in because we're never wrong.

03:11 - 22.070 The the in most statutory proceedings,

03:11 - 26.141 the General Assembly will choose who has standing and who doesn't have standing.

03:11 - 28.777 And if the General Assembly hasn't given you a standing, you don't have it.

03:11 - 33.048 There's no way for us to, as a court to wave a magic wand and give it.

03:11 - 37.252 Maybe that's the mistake that the General Assembly was clarifying here is.

03:11 - 39.855 Oh, by the way, this is a statutory proceeding.

03:11 - 43.592 These are the people we intend to have standing, and that's enough.

03:11 - 48.630 And that could be Your Honor's position.

03:11 - 53.668 I don't know, but if you look at the plain language, it's simply isn't there.

03:11 - 55.337 I agree, it's it's a clunky word.

03:11 - 58.039 It's a way of saying it. It is.

03:11 - 02.878 And the the thing that I was laying in bed last night thinking about, this is

03:12 - 06.681 what is the harm because we've

03:12 - 10.685 we've heard arguments today about this is going to clog up the judicial system.

03:12 - 16.124 It's been going on for decades and I don't notice any change.

03:12 - 19.127 I used to be a conflict parent advocate 15 years ago.

03:12 - 21.863 The system slow to begin with.

03:12 - 24.933 Unfortunately, and I don't think that the

03:12 - 28.370 that the juvenile system has crumbled in light of this.

03:12 - 31.373 Regardless of all that, I mean,

03:12 - 34.576 the legislature said nothing in this section.

03:12 - 38.013 So unless you can provide us something in some other section

03:12 - 40.916 that gives you standing, I don't see how you win.

03:12 - 45.921 Again, I think that

03:12 - 49.658 if they want it to be clear, they would have been clear.

03:12 - 53.695 And I think that they left the door open for other instances

03:12 - 57.132 because it's not an all side or, one size fits all.

03:12 - 59.234 It's not in a box.

03:12 - 02.671 And that it gives this court the permission to.

03:13 - 04.172 But counsel. Yes.

03:13 - 07.943 You know, you said something very early on in your argument and and,

03:13 - 09.878 you know, we've been dancing around it.

03:13 - 14.950 You said that your client has an interest in that child,

03:13 - 19.254 and the legislature has apparently said not so.

03:13 - 24.492 I mean, and, and other than the legislature saying that you do,

03:13 - 28.897 your client certainly doesn't stand on the same footing as a parent

03:13 - 32.033 who has a fundamental right,

03:13 - 35.971 you know, to, to to the child's, relationship.

03:13 - 41.309 I'm grasping for where this right is that your,

03:13 - 44.079 suggesting exists that gives you the funding

03:13 - 47.582 to claim standing if it's not statutorily created

03:13 - 53.088 in this rather comprehensive statute that's been around for about 25 years.

03:13 - 54.756 Right. Well, I think it was.

03:13 - 58.326 It's conferred through, obviously starting before the statute,

03:13 - 01.329 but then it's only confirmed through MRF.

03:14 - 03.999 Or I'm sorry, MFR in 2018.

03:14 - 07.469 I mean, it's, it's MRF, but that's not our case.

03:14 - 09.437 We don't care about MRF.

03:14 - 10.905 I mean, we didn't decide that.

03:14 - 13.008 That's the Superior Court of.

03:14 - 18.013 So, well, I, I understand, I think that you ask me

03:14 - 21.916 what is conferring it and we continue to, to

03:14 - 26.287 confirm what the court in in,

03:14 - 30.859 Mitch v box with this prospective, adoptive parent.

03:14 - 34.963 Exception is so that's why I come before this court

03:14 - 39.000 to bring that to light and to give these folks

03:14 - 43.672 it's not the opportunity to be held higher on the,

03:14 - 46.474 in a hierarchy above a parent.

03:14 - 51.946 That is not what we're saying, but they have the opportunity to have standing

03:14 - 56.718 just in the narrow situation of when a child is removed from their care.

03:14 - 59.888 And I think we understand your argument

03:14 - 01.656 and I just ask one, one follow up question.

03:15 - 03.725 I'm sorry, chief,

03:15 - 05.760 is there a way

03:15 - 08.897 to afford, as a matter of common law,

03:15 - 12.701 to afford your client with standing

03:15 - 16.571 without doing so, contrary to what

03:15 - 20.442 the General Assembly says is required for standing in this section?

03:15 - 29.250 Yes, I think that you could do it.

03:15 - 34.789 Could we could we give can we give, foster parents?

03:15 - 39.160 Can we give foster parents standing as a matter of common law?

03:15 - 42.664 If they don't have custody without conflicting

03:15 - 45.667 with the General Assembly's intent in this section?

03:15 - 48.636 I think that they can run

03:15 - 51.639 alongside each other as they have

03:15 - 53.007 counsel and.

03:15 - 56.010 Sorry, depresses points. Okay, but

03:15 - 58.913 what is your interest?

03:15 - 00.081 What is their interest?

03:16 - 04.352 I mean, you went through the recitation of substantial, immediate, etc.

03:16 - 07.388 in order to establish standing, but but what is the interest?

03:16 - 12.494 It's an expectation of a yes continued relationship.

03:16 - 13.862 And where would that come from?

03:16 - 16.898 Well, Your Honor, when foster parents,

03:16 - 20.902 are as involved as mine are, or as mine were,

03:16 - 25.240 they formed a very reasonable expectation

03:16 - 27.675 that they were going to be adopting this child.

03:16 - 30.345 And, in fact, there were

03:16 - 33.381 they were assigned to an adoption caseworker.

03:16 - 35.049 They were,

03:16 - 36.785 they were

03:16 - 40.121 told that rights were going to be terminated on a date certain

03:16 - 45.193 these there was an expectation formed over that course of two years.

03:16 - 49.097 And then right beforehand, right before those rights

03:16 - 51.132 were going to be terminated, all of a sudden

03:16 - 54.369 the child was taken away from them, absent an absent action

03:16 - 57.872 by the juvenile court, that expectation does not become an entitlement.

03:16 - 02.043 And the agency has custody, right, that the agency does have custody.

03:17 - 06.481 But in the case law, it does state that it

03:17 - 11.052 if the if you can show that there is an expectation of adoption

03:17 - 13.688 and it's reasonable,

03:17 - 14.923 which I think under under

03:17 - 18.293 these circumstances, having this baby since basically since birth,

03:17 - 22.797 for two years and being assigned an adoption caseworker and,

03:17 - 26.668 and being notified about when the rights were going to be terminated,

03:17 - 30.638 my clients formed a reasonable belief and an expectation

03:17 - 33.174 that they were going to be the adoptive parents of this little girl.

03:17 - 35.276 All right.

03:17 - 35.877 Thank you.

03:17 - 37.912 Yes, thank you very much. And thank you, Your Honor.

03:17 - 40.582 So by all,

03:17 - 43.585 our next case is Commonwealth versus William Roberts.

03:17 - 47.188 Megan's law first established that persons convicted of certain sexual

03:17 - 50.692 assault crimes much must register with the Pennsylvania State Police

03:17 - 53.995 and inform the state police of their address, report

03:17 - 56.998 annually, and provide current address information.

03:17 - 00.468 Certain parts of Megan's Law were declared unconstitutional,

03:18 - 04.472 and the legislature revised the law to address those court decisions.

03:18 - 08.243 Pennsylvania Pennsylvania Sexual Offender Registration

03:18 - 11.913 and Notification Act Shauna has replaced Megan's Law.

03:18 - 16.084 In 2005, William Roberts pleaded guilty in Westmoreland County

03:18 - 20.421 to four related offenses, including statutory sexual assault.

03:18 - 24.192 In 2006, he was sentenced to one and one half

03:18 - 27.729 to three years imprisonment in order to register as a sex offender

03:18 - 30.598 for life pursuant to that version of the Megan's Law.

03:18 - 31.666 In effect,

03:18 - 34.435 he was required to report to the State Police annually

03:18 - 38.273 to verify his personal contact information and be photographed

03:18 - 41.609 and notify the State police of any changes to his address.

03:18 - 45.313 When Shauna was passed, he remained a lifetime registrant

03:18 - 48.549 and the obligation to report to the State police annually

03:18 - 53.388 and report changes to his address continued in 2020. Mr.

03:18 - 55.523 Roberts failed to report to the state police

03:18 - 58.159 for his annual verification and failed to notice

03:18 - 01.162 notify the State police of a change to his address.

03:19 - 02.997 He was charged with two counts of failing

03:19 - 05.633 to comply with the registration requirements.

03:19 - 09.938 He was tried by a jury in the Court of Common Pleas of Fayette County.

03:19 - 13.608 State Police Trooper Adam John.

03:19 - 16.711 Oscar was a certified Megan's Law liaison for the State Police.

03:19 - 20.181 State police maintained a set of certified records detailing

03:19 - 23.751 Robert's sex offender registration obligations and reporting history.

03:19 - 27.288 Trooper John Oscar testified that the state police would send

03:19 - 30.525 Roberts a letter about two weeks before his annual verification date,

03:19 - 33.828 reminding him to report to a designated registration site.

03:19 - 37.298 Over the years, Roberts reported a number of times to these sites,

03:19 - 41.069 but Brett Roberts Megan Law package contained no paperwork reflecting

03:19 - 44.906 that he had reported during 2020 for his annual verification.

03:19 - 49.911 Washington County Police Chief Richard Taylor testified that the state police's

03:19 - 54.449 Megan Law Section contacted his department for help to determine whether Roberts

03:19 - 58.720 still lived at his last reported address in Belle Vernon, Pennsylvania.

03:19 - 02.490 He went to that address himself and found that the home was empty and unoccupied.

03:20 - 05.426 Mr. Roberts testified that no one informed him

03:20 - 08.663 that he was required to report for life for verification.

03:20 - 13.001 He said that his lawyer and the prosecutor agreed to a ten year registration term.

03:20 - 16.170 The Westmoreland County Sentencing Order reflects

03:20 - 19.307 that Megan's Law registration was a term of his sentence,

03:20 - 23.211 but it does not state the length of the defendant's registration term.

03:20 - 25.213 The prosecutor responded to Mr.

03:20 - 29.017 Roberts testimony with several documents from the Megan's Law packet

03:20 - 32.120 bearing his photo signature that showed his term of

03:20 - 36.090 registration was lifetime, most recently from July 2019,

03:20 - 38.159 defendant would have been

03:20 - 41.529 given a copy of the registration form each time he appeared for registration.

03:20 - 43.131 The jury convicted Mr.

03:20 - 44.699 Roberts of both counts.

03:20 - 47.702 The court sentenced him to 5 to 10 years imprisonment.

03:20 - 50.838 Mr. Roberts appealed to the Superior Court,

03:20 - 52.540 arguing that the evidence failed to prove

03:20 - 55.843 that he knowingly failed to comply with his registration requirements.

03:20 - 59.080 The Superior Court affirmed this conviction.

03:20 - 02.250 The Supreme Court granted Roberts request to appeal. Mr.

03:21 - 05.753 Roberts framed the issue as whether the evidence was sufficient to convict him.

03:21 - 09.690 When the Commonwealth failed to prove that the defendant knew of

03:21 - 12.827 and was non-compliant with his registration obligations,

03:21 - 17.698 or was the Commonwealth required only to prove that he did not register, Mr.

03:21 - 19.901 Roberts describes the Superior Court's ruling in

03:21 - 22.637 just that way that the court ruled that whether Mr.

03:21 - 25.640 Roberts was mistaken, that he was no longer required to

03:21 - 28.943 register was irrelevant because the prosecution had to prove only

03:21 - 32.780 that he failed to appear for registration when he was required to do so.

03:21 - 36.150 He argues that the prosecution failed to offer testimony

03:21 - 38.152 from any of the troopers who registered him.

03:21 - 41.155 The fact that he signed forms that do not refer to specific

03:21 - 44.559 like of length of registration, or how often he had the report,

03:21 - 48.663 did not prove that he knew of his specific registration obligations.

03:21 - 52.233 The prosecutor argues that the evidence showed that Roberts did

03:21 - 55.636 know that he was a lifetime registrant, and he was required to report

03:21 - 59.040 to law enforcement for his 2020 annual verification

03:21 - 02.043 and to report an address change, but failed to do so.

03:22 - 05.480 The prosecutor asserts that the Superior Court did not rule

03:22 - 08.583 that knowledge of the registration requirement is irrelevant.

03:22 - 09.884 Rather, the court found that

03:22 - 13.321 the evidence prove Roberts knowingly failed to register his change of address

03:22 - 14.789 within three days,

03:22 - 17.792 as the law requires, and failed to complete his annual verification.

03:22 - 19.594 Let's hear the arguments.

03:22 - 22.663 Good afternoon, Your Honors.

03:22 - 25.066 May it please this most honorable court.

03:22 - 26.701 My name is Matthew Jaynes.

03:22 - 30.771 I am with the Fayette County Public Defender's office a week ago.

03:22 - 32.607 And you have a pen in your ear. Thank you. Your.

03:22 - 34.609 Take it out.

03:22 - 38.613 Oh, and also, if you could, you're much taller than the previous counsel.

03:22 - 42.216 So you could lean the mic up, bend it up a little.

03:22 - 45.153 There you go. Thank you.

03:22 - 48.022 This case comes down to,

03:22 - 51.692 this court's and the court's below interpretation

03:22 - 55.930 of the knowledge requirement under 4915

03:22 - 59.734 one a at a one and two.

03:23 - 03.871 It appears that the Commonwealth

03:23 - 06.941 and the defense agree that,

03:23 - 11.445 a defendant, a particular defendant, would need to know

03:23 - 14.715 of his registration requirement.

03:23 - 17.718 That's not what the Superior Court in our

03:23 - 20.755 in our estimation, held below.

03:23 - 23.791 They simply stated that simply

03:23 - 26.827 knowing that he didn't register would be enough.

03:23 - 31.499 With regard to the specifics of this matter,

03:23 - 37.338 there was a there was a state trooper who testified that Mr.

03:23 - 40.908 Roberts, he would have been given certain information.

03:23 - 43.844 This particular trooper never met with Mr.

03:23 - 46.847 Roberts. That was, Trooper Adam John Osco.

03:23 - 50.451 He stated that there were three particular

03:23 - 54.322 state troopers, Megan's Law, state

03:23 - 57.325 troopers, specific state troopers who had met with Mr.

03:23 - 59.760 Roberts over over the years.

03:23 - 02.730 And that was over approximate a 12 year span.

03:24 - 03.664 So Mr.

03:24 - 07.735 Roberts had reported, he reported for more than ten years,

03:24 - 12.907 was excused in 2018 from reporting, but by all accounts,

03:24 - 16.811 he had properly registered up until the year 2020.

03:24 - 20.581 His position, of course, at trial was

03:24 - 23.551 that he didn't believe he had to register.

03:24 - 26.087 The Commonwealth did very little

03:24 - 30.524 to prove, in fact, did nothing to prove that he knew

03:24 - 34.328 of his registration requirement, as I stated.

03:24 - 36.731 So how would the Commonwealth prove that?

03:24 - 38.699 How do you prove anybody's knowledge of the law?

03:24 - 42.436 And thank you for the question, Your Honor,

03:24 - 45.473 with specific regard to this case in

03:24 - 48.843 and any other case as a whole,

03:24 - 53.414 the Commonwealth, I said, I believe and we believe that

03:24 - 57.285 they had ample opportunity

03:24 - 00.688 to present any state troopers who could have come forward and said,

03:25 - 03.958 we specifically gave this information to Mr.

03:25 - 04.992 Roberts.

03:25 - 10.064 We specifically gave this information to a particular defendant.

03:25 - 10.564 Wait a minute.

03:25 - 13.601 Didn't he check the box that he understood this?

03:25 - 17.138 So and thank you for the question, Your Honor, on pages

03:25 - 20.141 one and two of the,

03:25 - 23.711 sort of the registration requirements,

03:25 - 27.782 there was no indication that Mr.

03:25 - 30.184 Roberts was a lifetime registrant.

03:25 - 33.421 What the testimony at trial was was that Mr.

03:25 - 36.057 Roberts was handed a packet. What?

03:25 - 37.158 And not even that he was.

03:25 - 39.927 I don't even want to misspeak on that point because it's important.

03:25 - 42.430 It's that he would have been handed a packet.

03:25 - 43.264 But Mr..

03:25 - 47.201 Apologize, my review of the record indicated that

03:25 - 52.573 the Megan's Law packet was accepted into the record as exhibit two,

03:25 - 58.279 which was a set of certified records from the PSP, which detailed your client's

03:25 - 03.784 sex offender registration obligations, as well as the required reporting history.

03:26 - 06.420 How was that not sufficient

03:26 - 09.357 evidence to indicate

03:26 - 12.993 the mens rea of your client's awareness of his registration?

03:26 - 15.296 And, your honor, as trial counsel?

03:26 - 17.198 I can I can certainly speak on that.

03:26 - 20.401 With regard to pages one and two of that packet.

03:26 - 23.771 My client signed page two.

03:26 - 26.040 Page two what?

03:26 - 29.477 Up until that point, nothing indicated his lifetime status.

03:26 - 32.480 Nothing indicated any sort of status.

03:26 - 36.250 The packet as a whole was not sent out with the jury.

03:26 - 39.253 The jury never got to see it. The jury?

03:26 - 42.590 The jury didn't even consider it as evidence.

03:26 - 46.460 So when we're discussing sufficiency, Your Honor, that.

03:26 - 47.995 I'm sorry, I need to back up.

03:26 - 50.498 You say you were trial counsel. I was, Your Honor.

03:26 - 52.533 But doesn't trial counsel have an affirmative obligation

03:26 - 55.336 to notify his client upon conviction of what the.

03:26 - 58.105 The penalty is, including the sort of registration

03:26 - 01.475 I was not trial counsel of his initial of his initial case.

03:27 - 03.978 I was trial counsel for this specific case.

03:27 - 07.615 But my my point is still remains the same.

03:27 - 10.718 That doesn't you have doesn't counsel have an obligation or a court

03:27 - 13.788 at the time of sentencing to notify him what his requirements are?

03:27 - 17.491 And so after ten years, like, well, I don't remember what happened

03:27 - 18.159 ten years ago.

03:27 - 21.462 So I stopped reporting is what do we do with it?

03:27 - 25.232 I mean, I'm just wondering why this is an error correction or what is it

03:27 - 29.370 we're being asked to decide here as as the Supreme Court of Pennsylvania,

03:27 - 33.474 we can't impute knowledge to every single it or make this a strict

03:27 - 36.310 liability crime, can we? In that? That's correct, Your Honor.

03:27 - 37.111 This is not a strict

03:27 - 40.748 liability crime, and that it does require the knowledge element.

03:27 - 42.416 But I'm not sure.

03:27 - 44.885 My question is this is isn't that a question for the jury?

03:27 - 47.721 And in this particular case, they answered that question in the affirmative

03:27 - 51.959 that they said you thought your client did have knowledge in certain regards.

03:27 - 55.262 Your honor, it the Commonwealth could prove,

03:27 - 58.532 of course, could prove sufficient knowledge.

03:27 - 02.336 But what the Superior Court said below is that his knowledge

03:28 - 05.873 that he did not register there was enough to convict.

03:28 - 09.076 That's results versus the nature of the offense.

03:28 - 14.982 So what what we're what we're saying here is what the Superior Court saying is

03:28 - 18.152 simply that he knew he didn't register.

03:28 - 21.422 That's that's our reading of the Superior Court's opinion.

03:28 - 23.224 That's counsel.

03:28 - 24.458 I think you're right on that.

03:28 - 26.594 And I think the Commonwealth agrees with you.

03:28 - 30.898 And I think they Superior Court misstated

03:28 - 34.969 that element of this particular offense.

03:28 - 38.806 However, what you're now arguing really is error correction.

03:28 - 41.208 And the trial court got it right.

03:28 - 44.211 The trial court the trial court said

03:28 - 47.214 he had to have knowledge, and he did.

03:28 - 51.719 He he had forms that were presented to him every year.

03:28 - 54.288 And they said he was a lifetime registrant.

03:28 - 55.155 Now, he says

03:28 - 59.393 they only had to register for ten years, except he registered for 11 years.

03:28 - 02.763 So the the trial court got it right.

03:29 - 06.000 The Superior Court arguably got the law wrong.

03:29 - 08.235 And it's good that you brought that to our attention.

03:29 - 12.406 But the second aspect of your argument really does go to error

03:29 - 13.474 correction, does it not?

03:29 - 17.278 Your honor?

03:29 - 20.247 We our position is that

03:29 - 22.283 the Commonwealth didn't do

03:29 - 25.953 and specifically didn't do anything, didn't do anything to show correction.

03:29 - 27.087 That's error correction.

03:29 - 30.558 I mean, we took this case to determine whether or not

03:29 - 33.561 essentially this is a strict liability crime.

03:29 - 36.196 You're saying it's not a strict liability crime.

03:29 - 39.900 The Commonwealth has to establish your client's knowledge.

03:29 - 44.672 Of of the requirements trial court agreed with you.

03:29 - 50.210 As I understand what the trial court did here, the trial court tried this case,

03:29 - 54.481 on the basis that the Commonwealth had to establish knowledge

03:29 - 59.086 and found that they did.

03:29 - 01.655 Now, see, if you disagree with that, that's a question

03:30 - 04.925 of whether or not the evidence is sufficient to support that.

03:30 - 09.229 Maybe you wouldn't ask us to send it back for a consideration

03:30 - 13.701 of that issue by the Superior Court, but that's not really why we took this case.

03:30 - 16.971 And I do understand that, Your Honor,

03:30 - 19.974 my understanding is that,

03:30 - 23.811 I may also argue the sufficiency here

03:30 - 27.281 as well, that I do understand where you're coming from.

03:30 - 30.384 On that note, but specific, I just.

03:30 - 33.587 And of course, the court knows this at this time.

03:30 - 37.291 This you took the case

03:30 - 40.461 regarding the knowledge requirement regarding strict liability offenses.

03:30 - 45.366 What the Superior Court says is that Mr.

03:30 - 48.802 Roberts would have had to be dead,

03:30 - 52.406 in a coma or otherwise incapacitated.

03:30 - 52.806 Right.

03:30 - 57.411 So what we're asking the court to do, of course, is to correct,

03:30 - 03.083 correct that notion, which is is clearly wrong in our in our estimate.

03:31 - 06.687 That's see, that's the interesting point, is that the, that the,

03:31 - 11.759 that the Superior Court made a mistake here, but the, the, the appellee,

03:31 - 15.462 the Commonwealth does not does not in effect

03:31 - 19.466 defend their legal holding, just counter states.

03:31 - 23.170 The issue is that the evidence was sufficient that your client knew.

03:31 - 26.206 So that's why we're in in this pickle here.

03:31 - 26.640 Because,

03:31 - 29.877 we took this

03:31 - 34.048 because of the legal proposition on mens rea, but neither you nor the

03:31 - 37.317 the you and the Commonwealth don't appear to disagree on the mens rea.

03:31 - 40.320 You're just you're just disagreeing on the evidence at this point,

03:31 - 43.490 on the sufficiency.

03:31 - 45.259 And in a sense, Your Honor, I,

03:31 - 47.094 I don't want to speak for the Commonwealth, of course.

03:31 - 48.729 And of course, in reading their brief,

03:31 - 50.898 I think there may be some minor discrepancies.

03:31 - 54.234 But, with regard to the evidence, I think what

03:31 - 57.237 we have stated in our brief,

03:31 - 59.606 not only that, Mr.

03:31 - 02.643 Roberts would have to be dead, in a coma

03:32 - 05.612 or otherwise incapacitated, but

03:32 - 08.549 that's the the Superior Court

03:32 - 11.318 appears to be stating that

03:32 - 14.555 in our estimation, that Mr.

03:32 - 16.490 Roberts, there was sufficient evidence.

03:32 - 18.292 And of course, we do disagree with that.

03:32 - 19.860 Okay.

03:32 - 21.261 Limits. Yes, certainly.

03:32 - 26.567 Let's assume that you win on the issue that we granted, allowance of appeal,

03:32 - 29.837 which is the Superior Court was wrong to the extent

03:32 - 32.940 that they are explicitly saying we're inferential.

03:32 - 35.242 He's saying this is a strict liability crime.

03:32 - 36.443 What do we do then?

03:32 - 39.446 Do we send it back to the Superior Court?

03:32 - 41.348 Do we remand? They didn't say.

03:32 - 44.218 Take a look at the sufficiency, the evidence, because

03:32 - 47.321 apparently, you know, that's, protected on the record.

03:32 - 49.223 Or can we decide that on our own?

03:32 - 51.158 My evidence is sufficient.

03:32 - 51.725 Thank you, Your Honor.

03:32 - 52.760 And my understanding

03:32 - 55.763 is that this court would be able to answer that question on its own,

03:32 - 59.199 for purposes of judicial economy, of course, sending it

03:32 - 03.504 back to the Superior Court would take up more of their time.

03:33 - 06.206 A narrow issue, or there's care.

03:33 - 09.209 But this is

03:33 - 11.612 an and that's okay.

03:33 - 14.581 I just can I just get a point of clarification?

03:33 - 19.052 Your client was sentenced under at the time of Megan's Law three, correct? Yes.

03:33 - 24.091 Did Megan's Law three have a provision like sauna has right now about the notice

03:33 - 27.961 during the colloquy where the trial court judge is supposed to notify

03:33 - 31.498 the defendant of of their registration requirement.

03:33 - 35.602 If I may ask, ask a question in response.

03:33 - 38.539 Are you asking specifically

03:33 - 41.008 during the initial registrable

03:33 - 44.211 offense back in 2006, or are you asking specific?

03:33 - 46.713 I'm asking when he was when he was sentenced.