00:00 - Good morning, everyone, and welcome to an en

00:04 - banc session of the Commonwealth Court.

00:08 - I want to first thank the Pennsylvania cable network PCN

00:14 - for their coverage of our sessions.

00:19 - We also stream our arguments and many other proceedings on YouTube.

00:25 - The links are on our website.

00:29 - If you do watch the program,

00:33 - the PC end recording, you will hear Sam.

00:38 - It is Danielle Nader, Bill Pontius

00:41 - and Corby Miller of our Courts Office of Chief Legal Counsel,

00:47 - who will provide introductions to the arguments.

00:51 - I want to thank them very much for their enlightening

00:56 - introductions.

00:58 - I also want to thank the Allegheny County Court of Common

01:01 - Pleas for providing us this space.

01:05 - Those of you who've been before us before know the rules

01:08 - and maybe a different courtroom, but it's the same rules.

01:12 - 30 minutes per case for our en

01:15 - banc arguments, which is 15 minutes per side.

01:18 - If there are

01:21 - if you're going

01:22 - to share time, please let us know in advance.

01:26 - And if the appellants petitioners wish to reserve

01:29 - rebuttal time, please advise before beginning.

01:33 - We are a hot court.

01:35 - We are prepared for the arguments.

01:38 - And so let's begin.

01:41 - Our first case involves a worker's compensation claim.

01:44 - Before discussing the legal questions at the center of this

01:47 - matter is an individual, Mr.

01:49 - Ryan Marshall, who suffered an extremely significant work injury,

01:53 - resulting in the bilateral amputation of his legs.

01:57 - Throughout this discussion, I will refer to a worker's compensation

02:00 - by the abbreviation of W c

02:03 - under the Worker's compensation or WC act.

02:06 - Employers are required to have to be insurance.

02:09 - Also, medical providers are required to submit work related medical bills

02:13 - to the responsible employer insurer upon receipt of a medical bill.

02:17 - The employer insurer has 30 days to challenge the reasonableness

02:21 - and necessity of the bill by filing a petition for utilization review.

02:28 - In this case, two businesses employed Mr.

02:31 - Marshall.

02:32 - However, neither employer carried the required WAC insurance.

02:36 - The initial WCHA, known as a worker's compensation judge,

02:40 - concluded that both employers were statutorily liable to pay Mr.

02:43 - Marshall's work related medical expenses and specifically held the first employer.

02:48 - Durable bond is liable with a reimbursement rate

02:52 - from the second employer and demote or express.

02:56 - While much of Mr.

02:57 - Marshall's work related medical bills were paid by employers, Mr.

03:01 - Marshall's injuries are significant and require extensive treatment.

03:05 - Pay gap arrears and payment. And Mr.

03:06 - Marshall's home and health care treatment was not billed to employers

03:10 - but to the Department of Human Services due to Mr.

03:12 - Marshall's Medicaid insurance.

03:15 - DHS paid those medical bills and largely a six figure

03:19 - lean against the employers for reimbursement of such medical bills.

03:23 - Upon review, C.J.

03:25 - found the employers were not liable to pay the DHS lead because they were

03:28 - not afforded the opportunity to challenge the bills to utilization review

03:34 - procedure as required by the ACT Act on Appeal.

03:37 - The board reversed that decision

03:41 - on appeal.

03:42 - Dora Bond.

03:42 - AP And I argue that the WC Act requires medical bills and records

03:46 - to be sent to the employer and to afford the opportunity to challenge

03:50 - the bills through a utilization process before the liability for payment begins.

03:57 - Here, the employers were not afforded that process, so they are not liable.

04:01 - They maintain that if this court were to affirm the board's decision,

04:04 - the court would effectively rewrite

04:06 - the WC act and undermine the statutory structure.

04:10 - Mr. Marshall, through counsel, rejects the general concept

04:13 - that the burden is on the claimant to provide and produce medical records.

04:18 - Some final things to know before we listen.

04:21 - First of all,

04:21 - the parties discuss a chargeback option employed by insurance carriers.

04:25 - This appears to be an informal practice employed by insurance carriers

04:29 - but is not specifically recognized in the WC act.

04:33 - Second, you'll hear discussion of the Schmidt case, the full name

04:36 - of which is Schmidt vs Schmidt Committees and the SPC and Schmidt.

04:41 - The claimant's doctor recommended CBD oil as treatment

04:44 - for a work related injury and issued a doctor's note.

04:48 - However, a prescription for the treatment did not exist

04:50 - and claimant paid for the CBD oil out of his own pocket,

04:54 - later sought reimbursement for the same expense.

04:57 - A prior panel of this court clarified that the claimant

05:00 - was not a health care provider subject to the health care provider.

05:03 - Provisions of the WCA Act, which required the submission

05:06 - of forms to an insurer for bill payment.

05:10 - Finally, the parties and the court also discussed

05:12 - whether DHS must be brought into this case as an indispensable party.

05:16 - With that, let's listen to the argument

05:19 - made, please.

05:19 - The Court.

05:20 - My name is Joe Romano and I'm here on behalf of Vermont.

05:24 - I appreciate the opportunity to discuss with the court

05:26 - why the Appeal Board's decision needs to be reversed.

05:30 - If there are no bills and there are no records, there is no liability.

05:35 - That is a foundation of our discussion today.

05:38 - But it is also the foundation

05:40 - of every medical bill dispute under the workers compensation Act.

05:44 - If there are no bills and there are no records,

05:47 - there is no liability.

05:50 - At issue today is a line that is being assessed by the Department

05:55 - of Human Services against the collective employers in this matter.

06:00 - There is no dispute that the Leave was incurred during a compensable work injury.

06:05 - Are you saying that if we were to affirm that board

06:09 - we would be rewriting the worker's compensation Act?

06:13 - No. In fact, I would be saying that you're asserting the Worker's

06:16 - Compensation Act and the exact provisions of the Worker's Compensation Act.

06:20 - I believe that is what is most at fault in the decision

06:24 - by the Worker's Compensation Appeal Board

06:26 - section, if we affirm that That was the question,

06:29 - I said if we affirm the board vote, we will be writing.

06:33 - I'm sorry, not not not affirming the we affirm the board.

06:36 - Would we be rewriting the Worker's Compensation Act?

06:39 - I believe so, absolutely.

06:41 - By doing so, if you affirmed the appeal board again,

06:44 - I apologize for misunderstanding. No worries.

06:46 - If you do so, we are eliminating any requirement

06:51 - that medical bills and medical records be provided to an insurance carrier

06:56 - or an employer before their obligation to make payment begins.

06:59 - My understanding is if you had the bills now and you had the ability

07:02 - to review and dispute anything, you have no problem in paying it.

07:06 - Do that.

07:07 - You haven't been given that opportunity. Correct.

07:09 - And just to make it very crystal clear, we are seven

07:14 - or eight years down the line and

07:15 - still do not have a single medical bill or a single medical record

07:19 - that underlies the Department of Health or the Department of Human Services.

07:23 - Lean years, didn't you didn't you have the same opportunity

07:26 - as the claimant to notify the provider you weren't getting the bills?

07:30 - We had to make any efforts to do that.

07:33 - Yes, we did.

07:34 - We found out and I shouldn't say we I inherited this case just last summer,

07:39 - but that doesn't change the fact that the first time

07:42 - I believe that the parties became aware, or at least I should say the employers

07:45 - became aware of the lean was in September 2020.

07:49 - That is noted on page 78 of the reproduced record

07:52 - amongst discussion of counsel at the time of the first hearing before the judge.

07:56 - So that's 2020.

07:57 - The lean begins in late 2016.

08:01 - So that's a four year delay before the employers

08:03 - found out about it, at least based on the record

08:07 - in that.

08:08 - I'm sorry, Go ahead.

08:08 - And at that point, you had the bill said to you.

08:11 - We requested that we sent correspondence to Marshall's

08:15 - counsel requesting that the bills be provided to us because before that,

08:18 - we even became aware that we we we can't know what we don't know.

08:23 - My client paid literally every bill that he'd ever received on this claim.

08:27 - The only bills that it did not pay

08:29 - are the bills subject to this line, which they had no way of knowing about.

08:33 - And then we tried to get them.

08:34 - We requested those from Marshall's counsel.

08:36 - We still did not get them.

08:37 - I'm not necessarily faulting Marshall's counsel for that,

08:40 - but at the end of the day, my client has not received the bills or the records.

08:45 - Counsel You seem to be saying that what you really want

08:47 - is the ability to review and challenge the bills, and

08:50 - is there a way that we can do that in remanding this matter?

08:53 - Absolutely.

08:54 - There is what we commonly referred to as a charge back scenario,

08:58 - and from time to time, even in a compensable claim, medical bills

09:01 - will just be billed to a private health insurance entity or DHS by accident.

09:05 - Providers make mistakes in in that scenario when we see in

09:09 - the typical solution is you either pay the lead or you request

09:13 - the medical records in the medical bills and you reprice and pay those bills and

09:17 - then the provider charges get reimburses, whatever you were there once.

09:22 - And that's an acceptable solution to us in this matter.

09:25 - And I would state for the record that that was an acceptable solution

09:28 - by Marshall's counsel at the very first hearing.

09:31 - 72 statutory basis

09:33 - for the charge back process, which can you cite it?

09:37 - So I believe it essentially falls under Section 390,

09:42 - and I'm being a little creative, admittedly with that

09:44 - there is no exact words in the Worker's Compensation

09:48 - Act that says this is the process in this scenario.

09:51 - However, Section 319 only allows a subrogation

09:55 - leave in a disputed claim under a claim petition.

09:58 - If you have a compensable claim,

10:00 - which is what we have here, and which is when the line was incurred,

10:04 - then there cannot be a subrogation lien

10:06 - because the act envisions those bills and records are going to be submitted.

10:10 - And so the rationale for

10:11 - if I get a line from a claimant's attorney and they want me to pay it.

10:15 - My rationale is I don't have to pay this because the act doesn't say that

10:19 - I have to pay it, but I do a reasonable, necessary medical treatment.

10:22 - So please give me the bills.

10:24 - Give me the records, and we will process them

10:26 - within the confines of the worker's compensation.

10:29 - So why didn't why did they say why they weren't going to provide the bills?

10:33 - I wish I could tell you it's a mystery.

10:36 - My suspicion and again, I don't want to be

10:39 - a nefarious actor here by any means, but it provides the provider

10:44 - with a means to get unfettered access to DPW funds.

10:48 - They don't they aren't subject to utilization review.

10:50 - DPW makes payments.

10:52 - They aren't subject to causal relationship.

10:54 - DPW makes payments.

10:55 - And so we're a provider once to skirt the requirements of the act.

11:01 - That can happen

11:02 - if we're going to allow the appeal board's decision to stand.

11:06 - And they admit that there's other payments

11:08 - that have been made that were not related to the injury.

11:12 - Absolutely.

11:12 - The lean contains multiple charges.

11:16 - Just to give you examples, 90 excuse me

11:20 - one a other specific mono neuropathies may be related, maybe not.

11:25 - 103a illness unspecified.

11:28 - One day illness unspecified.

11:30 - 131 A through 172 way illness unspecified.

11:34 - 105 it right index finger.

11:37 - So you might look at and say, well, maybe it's related, maybe it's not.

11:40 - But that's exactly what we want to.

11:42 - We want to discover is it reasonable, necessary and cause

11:45 - we really didn't show them will make payment.

11:48 - I believe that there is lot of support not making payment at all,

11:51 - but I don't necessarily want to say it's either payment or no payment.

11:54 - It's payment if we get the rights that we're afforded under the act.

11:58 - And I know I'm black and I don't want to go too far here and take up too much time.

12:03 - Thank you. Thank you.

12:12 - Mark,

12:13 - May it please the court attorney, Mike Russell.

12:15 - I represent Pi and I in this case, I concur with the arguments made by Mr.

12:20 - Romano.

12:20 - He and I basically stand in the same shoes on this case.

12:24 - But I did think it prudent to put in my little $0.02 here

12:27 - because, frankly, I'm a claimants attorney.

12:29 - I've spent 30 years representing tens of thousands of workers

12:32 - comp clients across that state in as injured workers.

12:35 - So I have a little bit different perspective on this,

12:38 - but it comes down to the same thing.

12:40 - When I first meet with a client and it's a denied claim,

12:43 - we find out if they have other insurance, we get them to welfare.

12:46 - If they don't because we need them to treat.

12:47 - So we can support the case, we can litigate the case and they can get better.

12:51 - We submit that line at the closure of the case.

12:53 - It gets paid in the event of the war against the employer.

12:57 - It's not the case we have here.

12:58 - In the case we have here, we haven't denied liability.

13:01 - And as indicated by Mr.

13:02 - Romano, I can tell this court that my client has paid $428,000

13:06 - in medical expenses that have been properly submitted to them since 2016.

13:10 - They continue to pay bills without issue, without problem.

13:13 - The problem here is they did not receive the records and the case at hand.

13:17 - They haven't received

13:18 - one bill, one record, one prescription for in-home health care.

13:21 - And I point out what I have said in the arguments to date on this case

13:24 - based solely upon statements from claimants.

13:26 - Counsel Today it appears that the claimant continues

13:29 - to receive the same type of treatment that is subject to this lean,

13:32 - which appears to be principally in-home health care.

13:35 - I don't have a bill, I don't have a record, I don't have a prescription.

13:38 - I don't know what don't home health care is doing.

13:40 - We have no clue.

13:42 - The whole premise of the compact and the payment provisions of medical bills is

13:45 - we don't have liability to pay until we get a chance

13:48 - to see the records figure out, first of all, whether it's related.

13:51 - Second of all, whether it's reasonable, necessary.

13:54 - First question I or first conversation I have with my client

13:57 - after we win a case is don't submit your bills to welfare anymore.

14:01 - Submit them to work comp.

14:03 - If they're not paid, call me.

14:04 - It's my job to go after the carrier, figure out

14:06 - why it's not paid and file a petition if I need to.

14:09 - That's exactly what I say that one more time.

14:11 - That's it.

14:12 - My my advice to every client, if I win on a case,

14:14 - the first thing I do is say, You won your case.

14:16 - Don't blow your health insurance.

14:18 - I don't want Medicare, I don't want Medicaid,

14:20 - I don't want health insurance paying my clients medical bills.

14:23 - They're supposed to be paid by worker's comp.

14:25 - So my clients are directed.

14:26 - If you submit the bill to work comp and it's not paid, let me know.

14:30 - Send me a bill.

14:31 - I wrote hundreds of letters every year.

14:33 - This bill is not paid nine times out of ten.

14:35 - It's because the carrier says we never got the bill.

14:37 - We don't get the records.

14:38 - I write to the provider, I get the records if need be.

14:41 - I send them off, they'll get paid.

14:43 - Issue resolved. Rarely do

14:44 - we need to file penalty petitions, but that's what we tell clients.

14:47 - That you asked a question.

14:49 - I forget who asked it, but what are we?

14:51 - What happens if we affirm this decision?

14:54 - I'm a claimant's lawyer.

14:56 - Why not just let my clients continue to build welfare?

14:59 - I don't have to face you ask.

15:01 - I don't have to write letter after letter after letter to a comp carrier saying

15:05 - Why is this bill not paid? It looks related.

15:07 - I don't have to run out and get the medical records.

15:09 - My client submits the bills to welfare.

15:12 - Welfare pays the bills.

15:13 - I send a letter off to the attorney after a year or so.

15:16 - Hey, I got this lean.

15:18 - You owe it, pay it and strict liability.

15:20 - You don't get a chance to review those records.

15:23 - And hey, guess what?

15:25 - I get a fee.

15:27 - It doesn't make sense.

15:28 - And it basically undermines the entire structure of the compensation system.

15:34 - It's an absurd result, frankly, what the board did here, and

15:38 - I would suggest the decision is reversed or as indicated by Mr.

15:41 - Romano, at a minimum, this needs to go back so we can get the records.

15:45 - And I would last thing I would want to point out

15:47 - is Joe intimated it in its discussion today

15:51 - that Eileen that we're dealing with in this case was from August of 2019.

15:55 - Counsel suggested in conversations with me

15:59 - that this guy continues to receive that same type of treatment.

16:02 - We acknowledge and we've paid his bills.

16:04 - He had a really bad injury.

16:06 - So if you were the court and you were writing the order,

16:10 - how would it be written?

16:12 - Would you request would you state that reverse the board

16:17 - to direct the claimant, to provide all the bills?

16:21 - And anything that's not provided will not be paid

16:25 - and then give you all an opportunity to review the bills?

16:27 - If I had the best case scenario

16:29 - in my world, Your Honor, I'd ask you just to reverse it and leave me alone.

16:33 - But I can't do that.

16:34 - I mean, I think that's one result because there's other issues here

16:37 - that we've pointed out in our brief,

16:38 - which is welfare has even followed their own statute.

16:41 - Why are they continuing to prevail?

16:43 - If you prevail, the question is what remedy are you seeking?

16:47 - Are you seeking an order?

16:49 - And Judge Kirby said to order the claimants to provide the bill

16:54 - she asked you.

16:55 - And then my question just following up is claimants or the providers.

17:00 - So can you answer her question? Yeah. Yeah.

17:03 - I'm sorry if I got off track there, but again, I would prefer an order

17:06 - saying we don't have to pay it.

17:08 - But the reality is

17:09 - I think the order needs to say this needs to go back to the work comp.

17:12 - Judge So the records and bills can be provided

17:15 - and we get an opportunity to do what we're allowed under the compact, determine

17:18 - whether it's related

17:19 - and determine whether it's necessary and make the appropriate challenges.

17:23 - But we've got to have the records in order to be able to do that.

17:26 - Is there an authority for this chargeback process?

17:30 - I don't

17:31 - I wouldn't say there's any statutory authority, Your Honor.

17:34 - I've had it happen in cases when I've had cases where they've refunded

17:38 - the charges and then they build a comp carrier correctly, honestly,

17:43 - I can't remember the last time that's happened.

17:45 - And I would suggest that's because of my advice to my clients,

17:48 - which is don't submit it to welfare.

17:52 - What happens to the years?

17:55 - Is your time up?

17:56 - Yeah, it is.

17:57 - But if you have a question, what happens to the Leen?

18:00 - The DHS says that the board said they have the right to the reimbursement

18:05 - of what they pay, what happens to their lane

18:08 - if it's sent back and bills are challenged.

18:11 - Well, I can tell you we've already paid a portion of that lane

18:14 - based upon the supersedes decision.

18:15 - But we didn't pay charges that we didn't believe were related or couldn't

18:19 - tell whether they were related or necessary.

18:22 - So that lane has been partially paid in at this point.

18:25 - But as I indicated, there may be another one.

18:27 - If it goes back,

18:28 - then we get the opportunity to review that and challenge that lane, challenge

18:33 - the charges in that lean as either being unnecessary or unreasonable.

18:37 - DHS is the one that's entitled to reimbursement now, correct?

18:40 - Correct.

18:41 - But I would have to what the moneys that they already expended.

18:45 - Well, I could I would say that I do that in cases all the time

18:48 - where Arlene has submitted me to me from DHS on one of my clients,

18:51 - if I see charges that are related, it's a simple process that's usually equity.

18:56 - In our Optima, I send them a letter.

18:58 - These charges don't appear to be related. Remove them from the lane.

19:01 - Here's the injury description and those charges get taken off.

19:05 - And that's what realistically should have happened in this case,

19:09 - albeit things kind of got askew.

19:11 - Okay. Thank you.

19:12 - Thank you.

19:26 - May it please the court Matthew Donnelly, on behalf of Mr.

19:28 - Marshall,

19:31 - would you pick up where counsel left off

19:34 - and let us know whether you agree

19:37 - or disagree with the proposed order

19:40 - as he proposed it to the court and where you would differ with it?

19:44 - And the basis, therefore, is surely.

19:46 - Your Honor, I differ with it

19:49 - first, I disagree with the general concept of

19:54 - placing the burden upon the claimant

19:57 - to produce medical records.

20:00 - As counsel alluded,

20:03 - we have not provided medical records.

20:05 - We have attempted to.

20:07 - So Mr.

20:08 - Marshall had a bilateral amputation episode in Home health services.

20:13 - Now he is bounced between a number of,

20:17 - let's say two or three different in-home service providers

20:21 - that do not maintain good records.

20:23 - We have attempted to secure them in the context of the initial litigation

20:29 - from these various providers who have not surrendered them to us.

20:33 - If I could have provided these medical records, I absolutely would have.

20:38 - So in that situation, we have to go back to the general concept.

20:43 - The Fraud, Abuse and Control Act says that

20:47 - Medicaid has a lean and this lean has to be satisfied.

20:51 - Why did DHS pay the bills then?

20:53 - They just paid it without any supporting documentation.

20:57 - That's my understanding.

21:00 - And again, the payment process

21:02 - for DHS, I'm not familiar with it.

21:05 - It's a it's a process that I don't I don't have I'm not privy to the internal

21:09 - workings of DHS and their mechanism for receiving and paying these bills.

21:14 - All I know is that

21:17 - they sent the lead letter

21:18 - and now I'm subsequently trying to pick up the pieces of one.

21:22 - Why is this medical still being paid by DHS?

21:26 - I agree with counsel.

21:27 - DHS should not be paying for these services.

21:31 - They should be being billed directly to the compensation carrier.

21:36 - So should it be directed that DHS has to submit

21:40 - any supporting documentation?

21:44 - If that is a possibility?

21:45 - I would absolutely agree with that.

21:47 - DHS be here,

21:52 - Judge.

21:52 - I hadn't thought of that, but I believe that they may

21:56 - well be an indispensable party because

22:01 - it it's their internal operations

22:03 - and their payment of of the lean initially

22:07 - or the payment of the expenses leading to the lean initially.

22:11 - That I think is is really one of the major issues here.

22:14 - And the why does why does it continue to make these payments?

22:18 - I what about requiring the providers to provide the bills?

22:22 - I mean, ultimately they're the ones who want the money, right?

22:26 - They have the most incentive to comply with.

22:28 - Well, they're the they already got their money, right.

22:31 - They're already paid. The providers are already paid.

22:33 - The provider's been paid.

22:34 - It's DHS who wants the money now?

22:37 - That's correct. That's correct.

22:39 - I want to lean on a lead and and then I believe that this case also has

22:48 - implications from the Schmidt case where

22:52 - the claimant is not a provider.

22:55 - And the statutes that counsel is

22:59 - arguing are applicable, specifically the utilization review

23:04 - provisions of the Worker's Compensation Act.

23:08 - Those apply to providers.

23:09 - As announced in Schmidt,

23:12 - a provider is defined by the act.

23:14 - It's defined as a health care provider.

23:18 - DHS is not a health care provider.

23:21 - You're are not defined as a provider under the act.

23:24 - So who has the obligation

23:25 - to submit the bills to the employer, the provider or the claimant?

23:29 - The provider,

23:32 - Absolutely.

23:32 - As Schmidt is very clear in

23:36 - announcing the providers

23:39 - are the bear, the burden of submitting those bills,

23:42 - and the providers are going to submit to the employer

23:44 - because they don't know they're going to get paid,

23:45 - but they know they got this cash cow in DHS to pay everything.

23:50 - Correct.

23:51 - So do you think if all of you went to the courts mediation with DHS there,

23:56 - you could come up with a plan and solution for this specific case?

24:00 - Judge, I would not object to that at all.

24:04 - I think that I think that, you know, that throughout the proceedings,

24:08 - we've attempted to arrive at reasonable resolutions of of the outstanding bills.

24:13 - And I agree with counsel.

24:16 - They have paid the vast majority of medical expenses

24:19 - and they satisfied the initial

24:22 - lean that that had accrued during the the initial phases

24:26 - of the litigation prior to our prevailing on our claim protections.

24:31 - So I think that mediation may make a lot of sense.

24:36 - But again, this is where we may need to have DHS available

24:41 - to very rare that you got the appellant in the appellate in a non back

24:44 - argument agreeing and, and,

24:47 - and the only entity that's really creating the problem is not in front of us.

24:52 - And and

24:53 - I think that we ended up in this situation

24:56 - mainly because of the,

25:01 - the opaque way

25:02 - that DHS receives and then pays bills.

25:07 - I just we don't have a mechanism to access it

25:11 - even in the context of the initial litigation.

25:14 - So not knowing what they're paying,

25:16 - how they're paying and why they're paying it is a substantial problem.

25:19 - We certainly acknowledge that.

25:21 - But where and what I am trying to prevent

25:25 - is the the mandates of the fraud, abuse and Control Act

25:31 - resting upon my client's shoulders when in fact, workers

25:36 - compensation are still liable for the payment of medical expenses.

25:40 - Well, they are, but there is a requirement.

25:42 - You agree that

25:45 - that in order

25:47 - for that for the employer and the insurance companies to pay,

25:50 - they're supposed to get the bills

25:51 - and be able to examine them, make sure that they're being billed

25:55 - for a related injury and that it's reasonable and necessary,

26:00 - and that if the providers can send it

26:04 - directly to DHS, which doesn't have that requirement

26:11 - that it

26:14 - it could bypass and kind of undermine

26:18 - the protections that are built into the act

26:20 - to prevent the

26:26 - employers and insurance companies

26:27 - having to pay for bills that either

26:31 - aren't related to the injury or are reasonable and necessary.

26:35 - So this would sort of blow things up if the

26:39 - potentially if the order of the board is continued

26:43 - or not, it wouldn't there be an incentive for providers

26:47 - to bypass comp judges?

26:52 - I, I agree that that incentive may exist.

26:56 - However, the same

26:59 - protections that the

27:01 - that the employer is seeking

27:04 - would

27:06 - should apply to the claimant as well.

27:07 - Because, again, we have to remember that we're talking about a DHS lean

27:12 - and the DHS lean language says we don't care which entity

27:17 - satisfies this lean, whether it's the insurance company or the claimant.

27:21 - The claimant remains liable for these expenses if

27:25 - the carrier does not pay.

27:28 - So it's it's almost like a joint and several liability

27:31 - situation baked into the statutory language.

27:34 - So when Your Honor says the

27:38 - the employer shouldn't have to pay this, what should the claimant have to pay it

27:42 - instead, in lieu of the entity

27:45 - that is statutorily liable for the payment of medical expenses?

27:49 - So it sounds like we need to issue an opinion to establish a clear rule.

27:54 - Hey, would you agree?

27:57 - I agree.

27:58 - I agree.

27:59 - And is there any

28:02 - authority for a chargeback?

28:04 - Not that I.

28:05 - I'm sorry. Are you Not that not that I've seen.

28:08 - And that was one of the concerns that the in reading the

28:13 - the appellants brief was when I see the language

28:17 - regarding chargeback, I'm familiar with what chargebacks are.

28:20 - But that is an informal process that occurs between insurance carriers.

28:25 - That is not something I do not have as a claimant's attorney,

28:28 - a mechanism to enforce or institute a chargeback.

28:33 - I can't simply get the

28:36 - DHS to

28:37 - send or send to get to the providers to send the money back to DHS.

28:42 - And then Bill the the worker's compensation carrier.

28:45 - I don't have that mechanism.

28:47 - So where where that is the proposed remedy and solution.

28:53 - If that doesn't happen

28:55 - and the parties simply leave it at the status quo, well,

28:59 - once again, my client is left holding

29:02 - the bag for for this lean and

29:06 - and the pool of funds that exist to to satisfy this lean

29:11 - were generated through the settlement

29:14 - of the indemnity specific loss

29:18 - and partially a resolution of of a third party claim

29:23 - because of the uninsured nature of one of the defendants.

29:27 - So these are funds that were are not designated medical funds.

29:32 - What we'd be asked to do is invade

29:35 - the funds that were that are not medically designated, funds that we have retained,

29:41 - knowing that this

29:42 - is a possibility and knowing the and frankly,

29:46 - afraid of the mandates of the Fraud, Abuse and Control Act

29:49 - so that we have these funds available if they have to be used to satisfy this.

29:54 - But I don't believe that that should be the claimant's responsibility.

29:58 - I believe that.

29:59 - QUESTION When you're done, finish your thought.

30:01 - Go ahead,

30:03 - please.

30:03 - Okay.

30:05 - And I'd prefer if you would answer this question to when you come back up.

30:09 - I was wondering whether

30:12 - is this a very unusual situation

30:15 - that this case just needs resolved or in the industry?

30:19 - Would it be helpful to have an opinion from the court

30:24 - with an order judge

30:27 - in in light of the absolute dearth of case law

30:31 - regarding a number of these concepts, I think it is a bit unique in that we have

30:38 - the accrual of a very large DHS lean that

30:43 - and quite frankly

30:45 - the in my opinion, the malfeasance of a provider

30:49 - that has not maintained records, refuses to surrender records, and in one case,

30:54 - in contacting one of these providers, they had gone out of business,

30:58 - the entity no longer existed.

31:00 - So that's that's the situation that we're in.

31:03 - However,

31:05 - what I would be

31:08 - welcoming would be a pronouncement

31:11 - that if this situation does arise much like that in Schmitt,

31:17 - that once an entity

31:20 - other than a provider has had to pay one of these bills, that they still have

31:25 - to be satisfied by the worker's compensation insurance carrier.

31:28 - I think that that is the overarching

31:31 - idea here that the cop carrier still remains liable.

31:36 - And I'd also like to point out that

31:40 - the utilization

31:41 - review provisions of the Workers Compensation Act,

31:45 - they are not a self

31:47 - executing component of the Worker's Compensation Act.

31:51 - The initial premise of the Worker's Compensation Act

31:54 - as it relates to the payment of medical expenses is that

31:58 - the employer shall pay medical.

32:01 - If the employer thinks that

32:03 - it is unreasonable and unnecessary, they may

32:08 - avail themselves of the processes

32:11 - and procedures under the utilization review statute.

32:13 - Now clear counsel has also argued that there is a due process

32:18 - implication of constitutional due process and property right application judges.

32:22 - I would point out the that that

32:26 - this presumes that the you are provisions

32:29 - belong to and only apply to the insurance carrier and the employer.

32:33 - That is not what the statute says when you read the utilization

32:37 - review provisions of the statute, it says that the employee, employer

32:42 - or insurer may prospectively retroactively

32:46 - or concurrently seek utilization review.

32:49 - It is a

32:52 - is a procedure, not a property right,

32:56 - and it is equally available to the claimant as well as the employer.

33:01 - So to claim that they have a due process right

33:04 - to the utilization review components of the Worker's Compensation Act.

33:08 - Well, so do we if that if that's going to be the extension of that argument.

33:14 - And again, judges, I think that by indicating

33:20 - that there is no due process implication here,

33:24 - you're you're keeping in line with the decision

33:28 - in Schmitt as well as Doughty cited in my brief

33:32 - then admittedly, Doughty was decided prior to Act 44,

33:36 - but the concept remains the same in Doughty.

33:39 - The issue was whether or not there was a essentially a due process property

33:45 - interest in the utilization review process, the payment of medical expenses.

33:50 - So I believe that it remains applicable.

33:52 - And I believe that by entering an order

33:55 - that denies the due process right here, you're keeping in.

34:00 - What about the

34:02 - concept that

34:03 - medical expenses should be related to or that the injury, the

34:08 - than the need for the the expenses should be related

34:11 - to the work injury

34:14 - because DHS

34:16 - or another party doesn't know whether there was an accepted injury

34:21 - or it wasn't an accepted injury

34:23 - Judge And I agree with that component that that the worker's compensation

34:28 - carrier should not be responsible

34:30 - for paying for my client's cold, for his, his, his finger injury.

34:34 - That I absolutely agree that that that unrelated expenses

34:39 - there should be a mechanism to address that.

34:41 - But unfortunately, the statute doesn't it doesn't do that.

34:46 - And nor does the do the provisions of the are

34:51 - provisions of the act to making providers the one that have to provide

34:54 - these records, not a claimant, not DHS in this situation.

35:01 - Thank you.

35:02 - Thank you.

35:11 - I'm sorry.

35:12 - I just had one. And this is for.

35:14 - But has the problem been resolved?

35:18 - I providers now sending the bills to the insurance company

35:22 - or are they still sending them to DHS?

35:25 - Judge, what I can tell you is

35:27 - that DHS is lean is no longer accruing.

35:31 - Okay? So.

35:32 - So whether or not they're billing properly, DHS isn't paying them.

35:36 - I guess that was the question. Correct.

35:38 - So the DHS Leanne and I fortunately,

35:42 - I have an individual on this case at DHS

35:45 - that has been helpful and responsive that the line is not continue to accrue it.

35:50 - That's okay. Thank you. Absolutely.

35:53 - Just to respond to that, much like the Lean in 2020,

35:57 - I don't know what I don't know what I can assert with absolute certainty.

36:01 - When we receive a bill in record, we process it in.

36:04 - My understanding is every one of those have been paid to do okay.

36:08 - I would like to address Judge Wallace Question.

36:11 - The council's right. There's a

36:14 - great

36:14 - dearth of legal guidance on this issue.

36:17 - It was a bit it's astonishing as I stepped into this case to realize

36:21 - I don't really have a lot of guidance,

36:23 - which is why I focused so much on the statutes and the regulations.

36:27 - And at the end of the day, DHS regulations just simply aren't satisfied.

36:31 - How they how do we enter in order without DHS as a party?

36:35 - Well, I actually think DHS is representing today

36:39 - counsel has a 20% attorney's fee with DHS.

36:42 - We pay 20% to counsel out of the DHS that we've already paid.

36:47 - They have representation at the table today.

36:49 - I think he's representing DHS.

36:54 - I paid him on.

36:55 - I paid him on their behalf.

36:58 - But what I'm getting at with

36:59 - my question is, you know, sometimes when there's an absence

37:04 - of caselaw and guidance, we know we need to issue.

37:07 - And I think in the end to provide that much needed guidance.

37:10 - But sometimes when there's an absence, it's

37:11 - because this problem might not arise again for another 100 years.

37:15 - Like, I'm just curious

37:18 - if this unfolding this

37:20 - way is so unique that it could be resolved within the parties.

37:23 - On the other hand, if it would be very helpful for us

37:26 - to issue an opinion that would impact how we resolve the case.

37:30 - Well, as an employer, I watched a lot of oral argument

37:34 - preparing for this one today, and I saw a lot of employers

37:37 - standing up here and saying the sky is falling on us if you do this.

37:40 - But as a claimant's counsel just asserted, there is a world where providers

37:45 - understand what's going on here and they can look at this and say, I'm

37:49 - good enough with DPW payment, I'm going to ignore the Worker's

37:52 - Compensation Act and I'm just going to get paid

37:54 - and then I'm going to go out of business and then you can't get my records

37:57 - and bills.

37:58 - And then you were left with employers who are just left without a solution.

38:04 - And again, DHS isn't satisfied right here.

38:07 - And I know I'm not get I'm not understanding the answer to my question.

38:11 - I understand everything you're saying, but I'm trying to understand

38:15 - when we get together as a group,

38:16 - if we should be talking about the mediation option

38:19 - now, we have to think about jurisdiction over DHS and indispensable parties.

38:23 - But I'm trying to think if that's an avenue

38:25 - for you guys to come up with the solution,

38:27 - or if you need to hear from the court, that and maybe you can weigh in.

38:31 - Could you mind? There's a microphone there.

38:34 - I was going to raise my hand, but I wasn't sure.

38:36 - You're called upon

38:38 - as a claimant's lawyer, and I understand.

38:40 - I'm sorry, as a claim for I can tell you,

38:43 - maybe it's advice I give, but I never see this.

38:45 - Never see this.

38:46 - I never have a case where DHS, other health insurance or anybody else,

38:51 - with limited exception, maybe Medicare.

38:54 - But I don't let DHS pay bills.

38:57 - This is a

38:58 - that's why I said,

38:58 - with all due respect to the question about what the order should be,

39:02 - frankly, DHS, DHS ought to be told they don't get paid

39:05 - because they're not doing what they're supposed to be doing.

39:07 - And there needs to be some guidance to DHS through an order from this court.

39:13 - So this doesn't happen.

39:14 - But I can tell you, I don't

39:18 - 30 years get over 20,000, 20,000 claimants.

39:22 - I don't remember the last time I've ever had DHS pay a bill after an adjudication.

39:26 - Okay.

39:27 - Well, and if if this continues, if this is that the opinion of the board

39:33 - is the last word on it, do you think it would

39:36 - then inspire providers to avoid the process

39:41 - and send it directly to DHS if they're going to pay it?

39:44 - I would say absolutely, frankly, Your Honor, and not to be pessimistic, but

39:48 - it would encourage claimants, attorneys, not myself, to allow it to go to welfare.

39:53 - I don't take fees on medical benefits.

39:56 - I don't think it's appropriate, even though the court allows it.

39:58 - But I do take fees or I'm getting money back from DHS.

40:01 - So I it's a horrible result.

40:04 - My opinion and it's an unusual circumstance and DHS needs

40:08 - some guidance.

40:09 - Can you quickly address Schmid applies or not?

40:12 - I believe you said it didn't apply before now.

40:15 - So. Schmidt

40:17 - Schmidt actually does what I think it's supposed to do.

40:20 - You have a non provider.

40:22 - Okay. Mr.

40:23 - Schmidt, He's he's seeking reimbursement.

40:26 - But in the opinion is, if I may, I

40:32 - in the opinion

40:34 - it specifically says and this is on citation 1156 and 1157,

40:40 - if they want to challenge utilization, if they want to challenge

40:43 - response necessity go to you are that was still available

40:47 - just like in the keystone or X line of cases with pharmacies

40:51 - they complain because they're being left out of the U.

40:53 - R process.

40:55 - The process is there first, all of these non providers, pharmacies,

40:59 - medical supply vendors are seeking CBD oil or medical marijuana.

41:03 - They still step behind the U.

41:05 - R process if that utilization review process isn't satisfied.

41:09 - First, assuming the employer avails himself to it, then

41:12 - they don't get paid regardless of the provider and on provider status.

41:15 - The treatment ultimately has to be reasonable and necessary.

41:18 - If we don't avail ourselves of the process.

41:20 - It's presumed that

41:21 - if we do avail ourselves of the process, then it has to be decided.

41:25 - I look at the situation, I say, What if this was in reverse?

41:28 - What if we had, the bills and records, we challenged you,

41:31 - we won the utilization review and then the bills go to DPW and DPW says,

41:37 - I don't care that you want a utilization review, we pay the bills, pay me.

41:41 - So just look at this in the reverse scenario and you end up

41:44 - at the proper result.

41:45 - It just so happens we have nefarious providers who are

41:49 - fleecing the system and then running away and leaving us to hold the bag.

41:54 - So thank you very quickly, but what can we do?

41:57 - And DHS is in here.

42:02 - I'm going to admit I am not the best person to add to this question.

42:04 - I know what I know and I know what I don't know.

42:08 - I still am of the belief,

42:10 - but I might be wrong here that we have counsel for DHS here.

42:14 - If there is a fee agreement for him to receive a fee for collecting

42:17 - their lead on their behalf, they are represented by counsel today.

42:21 - That is my personal belief.

42:22 - And at the end of the day, regardless of whether DHS is here or not,

42:26 - this court can make a determination

42:27 - on whether DHS followed its proper regulation, which it did not do.

42:31 - It did not identify my client, it did not use my client before it.

42:36 - Issue payment.

42:37 - DHS needs to identify us and seek us out before it pays these bills.

42:43 - Thank you.

42:44 - Thank you.

42:46 - Thank you very much.

42:47 - Very well presented and argued in a very interesting and novel question.

42:53 - Our second case involves the sale of tobacco products

42:56 - before we dive in, let's begin with a bit of background about the law.

43:01 - The Pennsylvania General Assembly has established a law called the Tobacco

43:04 - Products Act, which in addition to a tax on tobacco products, requires

43:10 - a license for any manufacturer selling tobacco products in the Commonwealth.

43:15 - The Tobacco Products Act designates, the Pennsylvania Department of Revenue,

43:19 - as the agency responsible for administrating and enforcing this law,

43:23 - adjudicating license applications and creating the application criteria

43:29 - it believes is necessary to ensure applicants are fiscally responsible

43:32 - to collect and remit tobacco product tax collected from retailers.

43:38 - Among the application requirements, the department requires applicants

43:42 - to consent to an investigation of the applicant's financial resources

43:47 - to be conducted by the department's Bureau of Criminal Investigations.

43:52 - Now turning to the specific facts of this case,

43:55 - East Coast Vapor LLC, which we refer to

43:59 - as ECB, is a vaping retailer.

44:03 - SCV does not believe it is required

44:06 - to obtain a tobacco manufacturing license,

44:09 - but out of an abundance of caution, it applied for one anyways.

44:14 - After initial review of the application,

44:16 - the department asked for additional documentation.

44:19 - E CV submitted some, but not all of the documents

44:23 - and specifically did not submit the consent form

44:26 - to authorize a financial records investigation.

44:30 - In addition, ECB asked for the department's

44:33 - legal justification for the search.

44:36 - The department did not respond and denied the application for incompleteness.

44:41 - E CV challenged the denial to the Department's Board of Appeals,

44:45 - which found the application was appropriately denied due to ECB's

44:50 - failure to meet the minimum statutory requirements for a complete application.

44:54 - Specify only by failing to submit the consent form and a profit and loss statement

45:01 - on appeal to this Court.

45:03 - E CV argues the Board erroneously interpreted

45:07 - the Tobacco Products Act as giving unfettered discretion to the department

45:11 - and argues the department's warrantless searches of financial records

45:15 - lack statutory authority and violate the state and federal constitutions.

45:20 - SCV also asserts that manufacturers and wholesalers

45:25 - are legally distinguishable and the board improperly conflated

45:29 - the license requirements by applying the same legal standard for both.

45:33 - The department argues this case is only about an administrative

45:37 - agency's discretion to deny an incomplete application

45:41 - and that the department had no choice but to deny an incomplete application

45:46 - that failed to satisfy the minimum statutory requirements.

45:50 - Now, let's listen to the argument.

45:53 - May it please the court attorney

45:54 - Anderson AM on behalf of the Petitioner East Coast paper,

46:00 - I'd like to reserve 2 minutes of time for rebuttal.

46:04 - Thank you.

46:08 - In this case,

46:09 - the Department of Revenue has claimed that it has unfettered

46:12 - discretion and authority to require

46:16 - whatever it believes is necessary

46:19 - in order for a manufacturing applicant to obtain a license.

46:24 - As it relates to the e-cigarette business.

46:28 - There's a number of problems with that position.

46:31 - Number one, we have a statutory construction issue.

46:35 - They require, in this case financial records.

46:39 - They also require you to consent and waive your rights under the Fourth

46:44 - Amendment and Article one, Section eight, to allow the Bureau

46:48 - of Criminal Investigations to have access to those financial records.

46:54 - They based that in part

46:56 - on a section of the statute that deals with wholesalers.

47:01 - So in order to be a licensee

47:04 - as a wholesaler, you have to disclose certain financial information.

47:08 - However, in the statute that you're a retailer, right,

47:13 - we are not a wholesaler.

47:14 - We are a retailer. We're a retailer that.

47:17 - Yes, a retailer that you manufacture in.

47:19 - You're a retailer. Correct.

47:22 - But the statute says a dealer is a wholesaler or a retailer.

47:26 - So why isn't this just apply to all dealers?

47:31 - The statute

47:33 - distinguishes between wholesalers, manufacturers and retailers

47:37 - and wholesalers as to specific provision about the financial records.

47:41 - The other ones don't the retailer manufacture just say

47:45 - they can develop the application as they see fit

47:48 - and they saw fit to develop it the same way they did it for a wholesaler.

47:53 - Why is that an abuse of discretion or.

47:57 - Well, again, there's again two reasons.

48:01 - As it relates to the statute, if the legislature wanted a manufacturer

48:05 - to be subject to the same requirements as a wholesaler,

48:08 - they all they would have had to do is say a wholesaler and manufacturer shall

48:13 - submit X, Y, Z, which they didn't do under the rules of statutory construction.

48:18 - It's presumed

48:19 - that when you don't include that language, that you don't intend that result.

48:24 - So that's number one.

48:25 - Number two, there's an additional statutory provision

48:29 - that two statutory provisions that specifically deal with manufacturers

48:35 - and those statutes are unconstitutional on their face

48:39 - because they provide

48:43 - literally no guidance whatsoever

48:47 - under that non delegation doctrine.

48:49 - The separation of powers argument,

48:53 - the legislature has to provide

48:55 - adequate standards, adequate guidelines to the executive.

48:59 - And in this case, that's the Department of Revenue.

49:02 - But if you look at the actual provisions, there's no standard.

49:07 - And in fact,

49:07 - if you look at one of the cases that the department cites in their brief

49:12 - Pennsylvanians Against Gambling Funds, that's one of the cases.

49:15 - It's a Supreme Court decision.

49:17 - And in that case, they actually struck down

49:21 - under the Gambling Act Section 1506

49:24 - of that statute because it provided no standards.

49:28 - But if you actually look at that statute,

49:33 - it's no longer in existence, but it's set forth in the opinion.

49:36 - If you look at what that statute says, it's way more detailed, far more detailed.

49:41 - I could read it, but I won't do that.

49:44 - It's way more detailed than the two statutes that we have here.

49:49 - And what did the Supreme Court do?

49:51 - They said there was no guidance to the Gambling Board

49:54 - as it relates to this provision.

49:56 - It dealt with the slot machine licensing.

50:00 - And so what did they do?

50:01 - They said we are going to strike that portion of the statute

50:06 - under this separation of powers and non delegation doctrine,

50:10 - but we're going to sever it from the rest of the act.

50:14 - So they didn't strike down, obviously, the entire statute.

50:17 - We're not asking for this court to strike down the entire statute.

50:21 - We're specifically saying there's there's three provisions that are problematic.

50:26 - The two that deal with the manufacturing application licensing.

50:31 - Okay.

50:32 - Those two provisions, because they provide nothing.

50:35 - And then a separate section that was argued

50:38 - provides them with authority to request these financial records

50:44 - and request or demand consent

50:48 - to allowing the Bureau of Criminal Investigation to have access to them.

50:53 - But even that part of the statute for the manufacturing license

50:56 - that doesn't require you to submit your financial.

50:59 - It doesn't specify that.

51:01 - That's correct.

51:01 - What they're saying, though, is because it's so broad, we can.

51:04 - We can. Yes, we can do whatever we want.

51:07 - And so so that's why there's the twofold argument of the statute.

51:12 - As if they wanted to, they would have said that.

51:14 - And the other issue is

51:17 - but the other pieces that they're a creature of statute, they can only do

51:20 - what the statute says and it is not authorized and correct.

51:23 - There are no power. Correct.

51:25 - And so what they tried to do and say, well, we do have

51:29 - this power is argue that there's a provision of the statute that gives them

51:33 - the authority to inspect businesses.

51:37 - But the problem with that provision of the statute is it's unconstitutional to

51:42 - there they

51:45 - their response to that is as an e-cig, a business, you're closely regulated.

51:49 - So we have the authority to do this.

51:52 - The problem with that is there's no authority from the U.S.

51:55 - Supreme Court. There's no authority from the Supreme Court.

51:57 - There's no authority at all in Pennsylvania

52:00 - that says e-cigarette businesses are closely regulated.

52:02 - That's number one. There's no authority that says they're not.

52:05 - And there have been other courts in other states that have found that,

52:09 - at least with regard to the regulation of tobacco products, which is the model,

52:13 - I think for the e-cigarette regulation

52:18 - that is closely regulated.

52:21 - There's not been any U.S.

52:22 - Supreme Court decision saying that there have been some circuit court

52:26 - decisions that have said traditional cigaret businesses which have been around

52:32 - for longer than the

52:32 - e-cigarette business are, can be closely regulated.

52:36 - But the problem with that is

52:37 - and even if you look at the cases that they cite for that,

52:41 - even if you're a closely regulated business, the statute

52:45 - ordinance, whatever it is, still has to have reasonable time,

52:49 - place and manner restrictions on authorizing

52:54 - whatever entity it is to go in and conduct these, in this case,

52:59 - inventory searches or record searches as it relates to financial records.

53:04 - But there aren't any in this statute.

53:06 - There's none.

53:07 - There's no time, place or manner restriction.

53:09 - In fact, under the statute, it applies

53:12 - to any taxpayer which is defined.

53:15 - But a taxpayer here under the statute

53:18 - includes anybody who purchases e-cigarettes online.

53:22 - Do you do you

53:26 - as a manufacturer,

53:28 - do you exchange or distribute

53:33 - or receive tobacco products

53:35 - to retailers or other wholesalers in the Commonwealth? No.

53:40 - So what what we do, according

53:44 - that the department has said that we're a manufacturer is we

53:49 - make e-liquid.

53:52 - So we there's primarily three ingredients.

53:55 - We buy those ingredients, we make the e-liquid in the store

54:00 - and then we don't sell that a wholesaler

54:04 - or we or a retailer, we only sell it

54:07 - to people who come into the shop who are our customers.

54:11 - So they would come in and they would say, We want this e-liquid

54:15 - with this flavoring or whatever.

54:16 - And we it's one of the ingredients nicotine.

54:22 - No, no, you don't.

54:24 - You don't have the ingredients.

54:26 - Well, I shouldn't say the three ingredients that we put together

54:30 - are not nicotine, but nicotine can be put into that

54:36 - to the products.

54:36 - So, yes, there can be nicotine

54:39 - added, which is derived from tobacco.

54:43 - It doesn't have to be. But yes.

54:44 - And it doesn't matter under the under the way the courts have interpreted,

54:48 - it doesn't matter if the nicotine comes from tobacco or not.

54:52 - So we're not disputing that at all.

54:55 - So we're classified as a manufacturer, not because we're selling

54:59 - to wholesalers or retailers, but because we are making a a product.

55:04 - Once it's made, it is considered

55:06 - and there's not a dispute, it is considered a tobacco product.

55:09 - And so.

55:11 - But back to the point related to the taxpayer.

55:15 - The taxpayer, if I buy something online,

55:18 - I am now subject to this provision

55:21 - that says

55:22 - the Bureau of Criminal Investigations has the authority to come into my house

55:27 - and look at my phone financial records, look at whatever.

55:30 - And I know the department has has said we don't do that,

55:34 - but it doesn't matter because they have the authority to.

55:37 - And if you look at what the board decided here,

55:40 - not related to the search thing, but the board specifically decided

55:45 - that the department has whatever

55:47 - and that's a quote, whatever it believes is necessary.

55:51 - And that is a significant problem.

55:55 - So we have this the statute not saying that we have the separation

55:58 - of powers problem, we have the constitutional problem

56:02 - as it relates to Article one, Section eight, the time, place and manner

56:06 - restrictions.

56:07 - The other issue is that there actually

56:09 - requiring a licensee applicant

56:13 - to waive constitutional rights in order to obtain

56:18 - this license

56:20 - attached to our petition for review that was filed.

56:23 - I think it's exhibit C is the actual consent form,

56:28 - and it's a waiver of your Fourth Amendment and Article one, Section eight.

56:34 - Right.

56:35 - But that gets us into the unconstitutional conditions doctrine.

56:40 - And that doctrine says you can't require licenses

56:44 - to be waiving constitutional rights

56:48 - in order to obtain a license.

56:53 - And that's again, in the absence of statutory authority to do so.

56:57 - Certainly, certainly. And and,

57:00 - look, I think what happened is

57:02 - the legislature was clearly concerned with wholesalers and retailers

57:07 - because those are the entities that are definitely going to be in Pennsylvania.

57:12 - Right.

57:13 - But they didn't want there to be a loophole for manufacturers,

57:17 - large scale manufacturers, that are out of state.

57:20 - So they close that loophole by defining manufacturers, including manufacturers.

57:25 - But when they went to say what is needed to be a get a license

57:30 - to be a manufacturer, they simply didn't include any standards whatsoever.

57:36 - And so it just says the Department can require whatever it wants on it.

57:41 - You have to fill out a form, an application, whatever the department

57:45 - says, and have the authority to administer and enforce

57:49 - tobacco products. Tax.

57:52 - Yes, including licensing manufacturers, that that is delegated to them.

57:57 - But there has to be some.

57:58 - You do deal in tobacco.

57:59 - That's the definition of a retailer.

58:02 - You you before you were saying nicotine, yes or no, but you.

58:05 - Yes. No, No, I didn't dispute that. I see.

58:09 - So where do you

58:11 - draw the line in that enforcement administration?

58:15 - I mean, asking for financial records

58:18 - is that uncommon for licensing authority in its oversight capacity?

58:24 - Does the legislature have to say specifically you may have those records

58:29 - because it said it under wholesaler at camp export, retail or manufacturer,

58:34 - If you look at the statute as it relates to traditional CIGARET business

58:38 - and in this business, too. Yes.

58:41 - And that's where do you draw the line

58:45 - with what the legislature defines as required.

58:48 - And there's not even in this situation, there's not even a regulation.

58:51 - The Department. Fine.

58:52 - What's required here is your argument.

58:54 - So where would you draw the line?

58:55 - You're saying

58:57 - the legislature has said sorry.

58:59 - The legislature said you may put in their application what you need

59:03 - and you have the administration enforcement of tobacco products tax.

59:08 - You agree if they decided they wanted to have the financial records, why is that?

59:15 - You're

59:15 - trying to argue that because it's not in one and it's in another.

59:18 - It's excluded.

59:19 - But why on your argument of

59:24 - exceeding delegation of authority,

59:27 - where do you draw the line?

59:29 - Because there has to be some standard set forth in the statute.

59:34 - And what typically happens is if there is a standard, then you have

59:38 - the documentary role and you can you give me an example of a standard here?

59:43 - If the legislature would have said

59:46 - you can require financial records,

59:48 - then we would have to comply with that.

59:52 - So they have to say that.

59:53 - One last question after that, and I may.

59:56 - One final. Well,

59:58 - 998 they wouldn't have to say that if in other provisions

01:00 - 07.103 they didn't require it for other entities by not requiring it and requiring it.

01:00 - 09.806 That's the distinction

01:00 - 13.142 to to kind of short question.

01:00 - 16.446 Is the vaping industry a closely regulated business?

01:00 - 19.916 No, Your Honor. Okay. Thank you.

01:00 - 20.850 Thank you.

01:00 - 30.693 Thank you. You.

01:00 - 31.594 Good morning, Your Honor.

01:00 - 33.830 May it please the court attorney Francis Crisp.

01:00 - 36.833 Opacity on the part of the defendant are not.

01:00 - 40.937 Defendant The Department of Revenue.

01:00 - 43.172 I want to address, judge and powers

01:00 - 48.511 question to petitioner about where we draw the line.

01:00 - 50.013 As we've noted,

01:00 - 54.617 the licensing requirements for manufacturers are extremely broad.

01:00 - 57.253 However, that broad

01:00 - 00.523 discretion is cavin by the rest of the statute.

01:01 - 04.093 The rest of the statute includes sections 8214,

01:01 - 07.597 which authorizes the department to inspect the premises

01:01 - 11.834 equipment and books of manufacturers, retailers

01:01 - 16.339 and wholesalers, but that it when the consent forms signed

01:01 - 17.340 no the consent

01:01 - 21.277 form is more of a background check before the application can be processed.

01:01 - 25.415 Essentially, if you know, if I want to hire somebody,

01:01 - 26.783 I would do a background check.

01:01 - 30.687 I mean, I had to do that to get my job with the OIG.

01:01 - 31.754 The consent form

01:01 - 35.792 is because you're not a licensee yet and you don't the department doesn't

01:01 - 40.263 have the authority to, you know, inspect someone who's not a licensee.

01:01 - 44.300 It's simply to say, I can consent, that you can look at my books,

01:01 - 48.237 you can look at my records and make a decision based on that.

01:01 - 51.240 But for the manufacturing license, does it say

01:01 - 56.279 that you have that the department has this authority

01:01 - 59.282 of the court in that particular in that particular section?

01:01 - 03.820 Yes. It says that the department has broad discretion to decide what?

01:02 - 06.489 No, no, I'm not asking whether it said that has broad discretion.

01:02 - 11.127 Does it say that the department is allowed to come in and look at the books?

01:02 - 13.996 Do you have to sign a consent form in order to get the license?

01:02 - 19.102 That is not an explicitly enumerated requirement of that license.

01:02 - 22.839 Is that explicitly stated in other parts of the statute?

01:02 - 27.543 My understanding is that it's not that that's not stated under for retailers.

01:02 - 29.912 No, for for retailers and wholesalers.

01:02 - 32.915 There is some financial ones

01:02 - 33.349 there.

01:02 - 37.987 There there is proof of financial stability.

01:02 - 41.457 There is, but it's not like there's this section

01:02 - 45.294 that says the department shall require a consent form to be sacked.

01:02 - 47.430 Okay. Thank you.

01:02 - 50.032 I think someone I have a question if nobody else does.

01:02 - 53.536 Is the vaping industry a closely regulated business?

01:02 - 54.203 Yes, it is.

01:02 - 56.606 You're also it's a closely regulated business

01:02 - 00.143 because it follows the tobacco industry that vaping is just,

01:03 - 03.513 you know, the new form of tobacco, the form of tobacco.

01:03 - 08.584 But it's a vaping is new, right? Like

01:03 - 10.820 I didn't have it when I was a kid

01:03 - 13.656 and, and they didn't have,

01:03 - 18.294 you know, the internet when, when I was growing up and all these other things.

01:03 - 21.063 If you look at and

01:03 - 24.700 my colleague brought up Article one, section eight of

01:03 - 29.705 Pennsylvania courts follow the federal

01:03 - 31.140 Fourth Amendment jurisprudence

01:03 - 35.678 on this closely regulated business business

01:03 - 36.846 aspect.

01:03 - 39.515 Specifically, there's

01:03 - 44.453 case with DEP involving the Child Waste Management Act.

01:03 - 45.988 Let me get that for you.

01:03 - 47.356 It's Commonwealth Department

01:03 - 51.093 and Environmental Resources for school and ski disposal service.

01:03 - 54.063 And there the court followed

01:03 - 58.167 federal jurisprudence saying, like here, these closely regulated industries

01:03 - 01.838 and determined that, you know, waste disposal

01:04 - 05.608 issue in that case was whether or not hazardous waste or just

01:04 - 09.445 regular waste was sort of under this closely regulated regime.

01:04 - 12.949 And they said everything is because it's waste and it's highly regulated

01:04 - 16.752 because of the public policy concerns about pollution.

01:04 - 22.291 It's highly regulated because it would require a license to dispose of waste.

01:04 - 25.795 There's all kinds of inspections and other things.

01:04 - 28.064 The same is true of the tobacco industry.

01:04 - 32.335 The tobacco industry is, you know, in the department, just say it's

01:04 - 37.039 because it's so itself and therefore we're going to do whatever we want.

01:04 - 38.274 No of what it says.

01:04 - 40.276 I mean, waste could get all mixed up.

01:04 - 42.745 You could have hazardous waste mixed in with regular waste.

01:04 - 45.748 I mean, I don't know, maybe there's all these different reasons for

01:04 - 51.220 why it's required to be regulated for always as opposed to just hazardous waste.

01:04 - 54.824 I think it's a stretch to say what's going to be applicable here,

01:04 - 59.061 but I don't think so, Your Honor, because, again, tobacco is

01:04 - 00.830 is a closely regulated industry,

01:05 - 03.599 just because the Pennsylvania courts haven't decided that yet.

01:05 - 09.338 And going back to the prior argument, does it mean that it's not an issue?

01:05 - 10.106 This is

01:05 - 14.911 this has come up in this case and it's not the issue in front of us

01:05 - 18.948 whether or not it's a highly regulated no, no, that's that's the subject.

01:05 - 21.083 So part of my argument.

01:05 - 24.086 But let me let me ask you, so what are the qualifications

01:05 - 26.822 to receive a manufacturing license?

01:05 - 29.692 The qualifications to receive a manufacturing license?

01:05 - 33.129 The department has followed, generally speaking,

01:05 - 37.600 the same criteria for a wholesaler's license.

01:05 - 40.069 And the reason for that is because

01:05 - 43.372 the statute works.

01:05 - 44.941 You're Yeah, I paused

01:05 - 48.010 because isn't there one section of the statute that talks

01:05 - 50.813 about a manufacturing license and another part of the section

01:05 - 53.883 that talks about a wholesale license and so why wouldn't

01:05 - 57.820 they just have the same general heading in just one paragraph?

01:05 - 58.921 I think

01:05 - 02.391 might be my answer to your question would be that the General

01:06 - 06.662 Assembly believes that when it drafted the statute that there are certain

01:06 - 09.765 mandatory minimums that must be included

01:06 - 13.336 in a wholesaler license and a retail license

01:06 - 18.040 and didn't include that same language in the manufacturers license,

01:06 - 21.043 just because the department also thinks

01:06 - 24.046 that that is an important criteria

01:06 - 27.283 to include with the manufacturers license doesn't mean that they're

01:06 - 32.388 not authorized to do it by the statute, part of the same provision of the holds.

01:06 - 36.559 It also receiver what wholesaler and retail license

01:06 - 41.831 is that you don't make any material statements.

01:06 - 44.533 You don't essentially you don't lie in your license.

01:06 - 49.005 Does the General Assembly have to tell the Department

01:06 - 52.341 of Revenue that that is a requirement for the revenue?

01:06 - 54.810 Can say that that's a requirement of a manufacturers license?

01:06 - 57.213 That seems fairly common sense.

01:06 - 59.715 I'm sure it's probably a statement where you sign for the license

01:06 - 03.819 that you verify that everything contained herein true and accurate.

01:07 - 04.620 And yes.

01:07 - 07.556 And where would that authority derive from?

01:07 - 08.891 Under

01:07 - 09.625 my colleague's

01:07 - 12.628 argument, that authority is not in the statute,

01:07 - 17.666 and therefore the department couldn't ask for them to assert under oath

01:07 - 21.670 or whatever, that everything that they're providing is true,

01:07 - 24.740 that it's an absurd result.

01:07 - 26.509 Just to go back to my issue

01:07 - 29.812 that I asked about you, you are the Department of Revenue.

01:07 - 33.916 Put the issue of closely regulated business before us,

01:07 - 37.186 because you argued in your brief that they have

01:07 - 40.723 a diminished level of protection

01:07 - 43.359 from invasive inquiries

01:07 - 46.262 because there are closely regulated business.

01:07 - 47.663 It is before us, isn't it?

01:07 - 48.731 And you said no before,

01:07 - 51.801 but I know I didn't mean that it wasn't an issue before the court.

01:07 - 56.005 It's just it is simply a sub argument of my primary argument,

01:07 - 01.710 which is to state before you all that the board has this discretion.

01:08 - 03.879 The General Assembly gave it the discretion.

01:08 - 06.916 It's caben by the statutory

01:08 - 12.221 language, specifically in 8214, which says the Department can inspect

01:08 - 16.592 the books, can inspect the premises, can inspect the equipment of any taxpayer.

01:08 - 18.227 But there's now two different issues.

01:08 - 20.396 So I'm having trouble with the

01:08 - 23.966 obligation argument and the vagueness of the statute.

01:08 - 28.003 You're you're saying that the legislature made certain policy decisions

01:08 - 29.672 and included them within the statute.

01:08 - 33.342 And that's how we derive what it, is that they can ask about.

01:08 - 37.146 But that is not clear in the request or in the statute

01:08 - 41.217 that relates to the application and what can be in that form that.

01:08 - 45.354 Statute is very vague and saying that it shall be in the form

01:08 - 47.957 and contain information prescribed by the department

01:08 - 52.094 and we should be set forth truthfully and accurately the desired

01:08 - 55.865 by the department doesn't make reference to the Legislature's policy

01:08 - 58.901 or the section you're referring to.

01:08 - 00.769 I don't believe that it needs.

01:09 - 04.573 I think ordinary statutory construction would be that we read the entire statute.

01:09 - 07.743 The point here today about what they didn't

01:09 - 10.646 include in their application, correct?

01:09 - 11.547 Yes, Your Honor.

01:09 - 15.951 And so how is it that with that being as big as it is

01:09 - 19.021 and talking about submitting an application containing

01:09 - 22.224 just the information requested by the department, that any app

01:09 - 26.061 you can be aware of what the legislature's intent was there?

01:09 - 26.462 Okay.

01:09 - 29.465 I think I understand your question, Your Honor,

01:09 - 31.867 that I don't believe it's vague.

01:09 - 36.438 The department doesn't believe that that is a vague delegation of discretion.

01:09 - 39.508 It's it clearly states that the Department

01:09 - 43.345 ask for whatever it deems is necessary.

01:09 - 46.649 I know that that's a quote that

01:09 - 49.485 counsel wants to bring up, but it is a quote from the statute.

01:09 - 51.987 So I have to use it.

01:09 - 55.291 And again, you would look to the remaining

01:09 - 58.627 remaining sections of the statute and look at what that authority is.

01:09 - 01.363 The another provision that's really important

01:10 - 05.100 is 8202, which is the remittance of tax.

01:10 - 06.902 And now this is not a tax case.

01:10 - 07.970 I'm not a tax attorney.

01:10 - 10.973 I don't to get into too many tax issues,

01:10 - 16.212 but the remittance of tax is collected by

01:10 - 18.314 manufacturers and dealers.

01:10 - 21.217 The manufacturer under the statutory

01:10 - 25.421 provision collects that tax and remits it to the

01:10 - 26.789 Department of Revenue.

01:10 - 29.625 Now, I understand petitioner's argument

01:10 - 34.997 that his business model doesn't follow this typical model,

01:10 - 40.202 but that doesn't change the fact that as a general, the application,

01:10 - 45.874 a manufacturer is still going to have a fiduciary duty with the department.

01:10 - 49.478 It's still going to collect and remit of the department.

01:10 - 54.083 And that understanding whether or not a business is solvent

01:10 - 57.453 and financially stable, which is what essentially is

01:10 - 02.024 done by the background check done with the consent form,

01:11 - 04.893 seems like the department's asking a lot the General Assembly

01:11 - 08.998 didn't believe was necessary or didn't make the requirement.

01:11 - 09.765 And it's almost like

01:11 - 13.202 the department is stepping into the shoes of the General Assembly,

01:11 - 16.438 and the whole purpose of the statute is to put the public on notice

01:11 - 20.476 and, also to limit the government of what they can and cannot do.

01:11 - 21.443 And it just seems like

01:11 - 25.214 the department is really saying this is what we need because we need it.

01:11 - 27.516 Therefore we can.

01:11 - 30.519 But that's not what the General Assembly granted to the department

01:11 - 34.990 that well, the General Assembly granted them broad discretion

01:11 - 41.130 and is this in part to enforce the taxing

01:11 - 43.365 authority of the department?

01:11 - 44.800 Yes, it's both.

01:11 - 46.702 It's both the taxing authority.

01:11 - 49.705 I believe that the Tax Act, because it's a tax act,

01:11 - 56.178 is primarily for the taxing authority of the department. So

01:11 - 00.049 for the I'm sorry, go ahead.

01:12 - 01.684 You mentioned 8214.

01:12 - 05.654 I was just able to pull it up because I didn't have it here.

01:12 - 08.724 It says the department is authorized to examine the books and records

01:12 - 13.529 the stock of tobacco products and the premises and equipment

01:12 - 14.730 of any taxpayer.

01:12 - 19.735 So you're saying this provision,

01:12 - 23.539 the first one is, you know, make records and return to the general taxpayer?

01:12 - 26.542 Is that the provision you're saying gives

01:12 - 31.213 the department the authority to otherwise, besides the

01:12 - 36.452 discretion that was allotted to it, this B examination?

01:12 - 38.320 Is that it? Yes, Your Honor.

01:12 - 41.357 Essentially, the the department has been given broad

01:12 - 45.928 discretion in the manufacture license statute section,

01:12 - 48.764 and then we can look to see what that discretion

01:12 - 51.767 entails by looking at 8214.

01:12 - 56.572 And that's the purpose of seeing if

01:12 - 57.573 the accuracy of the

01:12 - 01.744 payment of any tax imposed by this article.

01:13 - 04.580 But the licensing manufacturing

01:13 - 07.182 retailer, wholesaler,

01:13 - 10.419 that's not a tax issue, is it?

01:13 - 15.224 That's just the question of licensing to do business in the Commonwealth.

01:13 - 16.792 Well, it's one of the above,

01:13 - 21.497 but as a condition of that license is the remittance of the tax.

01:13 - 24.600 So there are two in the same,

01:13 - 25.734 you know,

01:13 - 29.972 and again I want to address something because opposing counsel brought it up.

01:13 - 32.875 You know, he says that a taxpayer is anybody, anybody

01:13 - 36.211 in the whole world, and that's just simply not true.

01:13 - 39.181 The definition section defines a taxpayer

01:13 - 43.152 as someone who is subject subject to tax into this act.

01:13 - 45.854 And then if we look at and again, this is in the tax case

01:13 - 50.926 and I'm not trying to make it one, but if we look at the taxing sections

01:13 - 53.929 8202 and 8203, it

01:13 - 58.167 speaks exclusively in terms of dealers

01:13 - 02.371 or excuse me, manufacturers, wholesalers and retailers.

01:14 - 05.808 There's a force, unclassified importer

01:14 - 08.677 that is not at issue in this case,

01:14 - 13.515 but the tax is collected from them at the sale

01:14 - 18.020 from the manufacturer to the wholesaler to the wholesaler to the retailer.

01:14 - 20.756 It's not collected from a consumer.

01:14 - 25.961 It's not the department doesn't have discretion to go into a consumer's home

01:14 - 29.798 and look at all their financial records or inspect their premises

01:14 - 35.704 where the legislature explicitly required wholesale license applicants

01:14 - 39.274 to provide financial information but didn't

01:14 - 43.178 have the same requirement for manufacturers.

01:14 - 47.082 Is it your belief that your department can still ask

01:14 - 50.352 for that financial information from manufacturers?

01:14 - 54.823 Yes, it is, even though it's explicit only as to one, but not the other.

01:14 - 57.459 You believe there's an implicit authority?

01:14 - 58.026 Yes, I believe.

01:14 - 00.996 What guardrails are there against

01:15 - 04.666 the Department of Revenue asking for other things.

01:15 - 09.671 I would say that those guardrails are there in 82, 14, 82, 14.

01:15 - 10.138 Yeah.

01:15 - 13.208 Where where it says the department is allowed to look at these things.

01:15 - 18.881 And again, if we think about the consent form as simply a background check

01:15 - 21.183 that the department is asking for

01:15 - 24.186 in its consent form to look at those

01:15 - 27.689 before it approves the license so it doesn't approve a license.

01:15 - 32.661 And then on its first inspection, say, this is a good

01:15 - 33.862 I need to revoke it

01:15 - 37.366 where in 8214, specifically referring

01:15 - 40.669 8214 be

01:15 - 43.472 which allows

01:15 - 45.607 me see if I can put that for you.

01:15 - 48.076 The examination of records.

01:15 - 51.046 Yes examiners recognition of records premises

01:15 - 54.049 but isn't that after the license has been issued

01:15 - 56.952 and here we're just talking about issuance of the license?

01:15 - 57.753 Yes, Your Honor.

01:15 - 02.190 And again, my point is that there isn't that putting the cart before the horse.

01:16 - 04.793 I don't believe so. You don't even have a license yet?

01:16 - 06.995 I don't believe so, Your Honor, because how can the department

01:16 - 10.365 determine whether or not it can give the license to the licensee

01:16 - 13.368 if it doesn't have the authority to look at those things the first place?

01:16 - 16.371 And to answer your rhetorical question,

01:16 - 20.042 doesn't it have to have the statutory authority to do so?

01:16 - 25.847 It and it does in the broad discretion granted by the General Assembly.

01:16 - 30.218 Thank you. But it said that the

01:16 - 32.888 list of the information after the application

01:16 - 34.323 and that would have been captured

01:16 - 37.693 and the part that we're talking about, then I don't think we'd have an issue.

01:16 - 41.897 But in the application it's so broad that it's whatever information they need

01:16 - 46.068 which could include what you're talking about, but it's not listed there.

01:16 - 47.235 That's incredibly broad.

01:16 - 50.138 And one of the concerns I have when I'm considering

01:16 - 54.076 the unconstitutional delegation is in application of it.

01:16 - 57.279 Even though there is a form.

01:16 - 59.881 Could you envision a scenario where an applicant is

01:16 - 03.752 faced with an I'm trying to always have a moving target.

01:17 - 05.087 That's one issue.

01:17 - 09.358 The other could be on equal treatment to applicant.

01:17 - 11.393 Can you respond to those two concerns?

01:17 - 14.863 Yeah, I can respond to those two.

01:17 - 18.000 One, I don't believe that

01:17 - 18.734 an applicant

01:17 - 22.771 wouldn't do that because of the regret that an applicant

01:17 - 27.376 is going to try to always hit a moving.

01:17 - 30.879 But again, this is caben by the statute.

01:17 - 33.749 This is cabin by other case law.

01:17 - 36.451 One of the things I wanted to discuss was the time

01:17 - 38.820 and place and manner restrictions. Okay?

01:17 - 42.024 And you are, over your time, an opportunity

01:17 - 45.460 to briefly respond

01:17 - 48.530 to the and to the equal protection portion of it.

01:17 - 51.366 There's nothing in the statute

01:17 - 55.971 and in that form, to my mind that would say

01:17 - 58.607 that would implicate a suspect class

01:17 - 02.277 or implicate any kind of equal protection issue.

01:18 - 05.347 I understand, Your Honor, concern about the breadth.

01:18 - 11.219 But again, the statute itself doesn't say doesn't authorize the department to.

01:18 - 13.622 Yeah, I wasn't talking about equal protection

01:18 - 16.191 as far as that class, but I was talking about.

01:18 - 19.761 When you consider maybe the purpose of why

01:18 - 22.964 there should not be an unconstitutional delegation, some

01:18 - 26.001 some things that could go wrong when the language is too broad and that

01:18 - 31.039 the department has the authority to ask for whatever information it wants to.

01:18 - 36.244 But I if the PJ would like you to answer the point, you kind of get to it.

01:18 - 37.279 You're welcome to.

01:18 - 39.548 Otherwise you don't need to address my question further.

01:18 - 42.150 No, no, I mean the answer it do you? Right.

01:18 - 43.351 For there.

01:18 - 47.522 Well, I guess if you understand my point wasn't about equal protection

01:18 - 48.557 as far as suspect class.

01:18 - 52.360 If you want to answer that now that I've articulated.

01:18 - 53.261 Yes, Your Honor.

01:18 - 58.333 And I would just sort of bring us all home to what's at issue in this case.

01:18 - 02.637 What's issue in this case is the denial of an incomplete application

01:19 - 05.974 for a manufacturer's license, which at issue in this case

01:19 - 10.645 is the petitioner's refusal to provide a consent form.

01:19 - 13.815 I can't speak to every hypothetical possibility,

01:19 - 19.721 but what I can tell you is what's before this court is just that consent form.

01:19 - 22.591 I hope that answers your question.

01:19 - 23.625 Okay? Yeah.

01:19 - 26.862 And I would just briefly conclude I see that I'm over time.

01:19 - 30.632 Again, this is a simply a license in case the department received

01:19 - 31.867 an incomplete license.

01:19 - 35.537 And this court should affirm the court's decision.

01:19 - 43.345 Thank you.

01:19 - 47.616 This is not simply a licensing case.

01:19 - 51.353 And it's interesting that the department is trying

01:19 - 58.059 so desperately to hang its hat on 8214, because that's precisely argument

01:19 - 04.032 that I made, that that provision itself is unconstitutional on its face as well.

01:20 - 08.170 And the reason for that is

01:20 - 09.771 there's no restrictions on

01:20 - 12.774 who they can search other than it being a taxpayer.

01:20 - 17.279 Now, counsel's indicated that that's not a limitation

01:20 - 23.218 or that's a limitation because it's a manufacturer, licensee, wholesaler.

01:20 - 24.786 It gets us strict.

01:20 - 28.456 And then but then it says any taxpayer,

01:20 - 32.060 which includes an unclassified importer.

01:20 - 34.963 And what is an unclassified importer, that's me

01:20 - 39.534 going online and buying an e-cigarette device online,

01:20 - 44.506 because if you do that, you have not paid the 40% tax.

01:20 - 48.543 But the possession of taxpayer talks about someone responsible for paying tax

01:20 - 50.178 under the provisions of this.

01:20 - 52.080 And that is an unclassified importer.

01:20 - 55.984 If you purchase a device online,

01:20 - 59.020 not from a retailer, not from a licensed retailer.

01:20 - 04.359 If you do that, you have to pay a 40% tax on what you purchase.

01:21 - 08.530 If you buy something for $10 online, it's a device that you

01:21 - 12.300 you know, then you're subject to that 40% tax.

01:21 - 16.671 And the way to enforce that is through 8214.

01:21 - 18.340 But that's a problem.

01:21 - 21.843 And I get the department says I've had hearings

01:21 - 25.046 where agents have said, well, we don't do that.

01:21 - 27.816 But again, the statute says they can,

01:21 - 31.152 and that's where it's unconstitutional on its face.

01:21 - 34.222 It doesn't matter what they do and don't do.

01:21 - 39.961 It gives them the authority and that's it's also circular to argue

01:21 - 44.032 that 8214 gives us this authority

01:21 - 49.271 under the the actual licensing provisions

01:21 - 53.541 which again, no standards whatsoever.

01:21 - 55.510 Thanks each of you hit on it.

01:21 - 56.211 There were standards.

01:21 - 58.413 We wouldn't be here, but there aren't any.

01:21 - 59.881 Thank you very, very much.

01:21 - 00.682 Thank you.

01:22 - 04.085 Yes, you've done over your time.

01:22 - 05.086 Thank you very much.

01:22 - 10.325 Again, another very well-argued and very well-briefed case.

01:22 - 14.696 Our next case asks the question, what is a hearing?

01:22 - 17.332 The Commonwealth Court will seek to answer this question

01:22 - 21.403 in Pennsylvania State Police versus Chad Michael Gress.

01:22 - 25.407 The answer to this question may resolve a controversy about whether Mr.

01:22 - 30.412 Gress should be permitted to regain possession of his firearm despite

01:22 - 36.151 being subject to a protection from abuse order issued under a consent agreement

01:22 - 38.586 under the Protection from Abuse Act.

01:22 - 42.791 Firearms cannot be returned to an individual subject to a PFA

01:22 - 46.328 if the individual is prohibited from possessing firearms

01:22 - 50.298 under federal law prior to having a firearm returned,

01:22 - 55.370 the individual must be given a clearance from the Pennsylvania State police here.

01:22 - 57.072 PSP denied Mr.

01:22 - 01.643 Grass aggressive clearance because the PFA order was still active.

01:23 - 03.211 PSP, the appellant

01:23 - 07.215 here, is asking the Commonwealth Court to reverse an administrative law.

01:23 - 09.351 JUDGE Order holding that Mr.

01:23 - 12.787 Gress is permitted to obtain the return of his firearm

01:23 - 16.992 because no evidentiary hearing occurred in the case

01:23 - 20.295 and because Pennsylvania law grants the trial court

01:23 - 24.733 discretion on whether to prohibit a defendant from possessing firearms

01:23 - 28.870 when approving a PFA consent agreement.

01:23 - 32.907 PSP argues that the ALJ was incorrect

01:23 - 34.743 because the Pennsylvania Crimes

01:23 - 38.546 Code prohibits a person subject to an active PFA order

01:23 - 41.983 from possessing firearms when the person is also prohibited

01:23 - 45.220 from possessing a firearms under federal law.

01:23 - 49.691 PSP contends that this federal prohibition applies to Mr.

01:23 - 55.063 Grass, even though the PFA agreement approved by the trial judge

01:23 - 00.568 specifically excluded the prohibition on him possessing firearms.

01:24 - 04.506 This is where the question what is a hearing comes into play?

01:24 - 06.875 You see, the federal law in question prohibits

01:24 - 09.077 a person from possessing firearms.

01:24 - 15.450 When that person is subject to a PFA order that was issued after a hearing.

01:24 - 21.623 Hearing, however, is nowhere defined in the relevant federal law.

01:24 - 22.290 While the

01:24 - 26.661 ALJ interpreted the federal laws requiring an evidentiary

01:24 - 30.832 hearing PSP in support of its refusal to grant Mr.

01:24 - 32.434 Gress a

01:24 - 35.170 argues for a looser definition of hearing,

01:24 - 38.773 one that, consistent with the federal statutory language,

01:24 - 42.510 only requires notice of a hearing and an opportunity

01:24 - 47.315 for the person subject to the firearm prohibition to participate in the hearing.

01:24 - 50.919 Such a definition would preclude the need for an evidentiary hearing

01:24 - 55.090 to trigger the firearm prohibition and would include circumstances

01:24 - 59.127 where, like here, the trial court judge approves a consent agreement

01:24 - 04.265 between the parties, thereby the need for an evidentiary hearing

01:25 - 09.437 concerning the allegations within the PFA petition.

01:25 - 10.505 Obviously, Mr.

01:25 - 14.109 Grass believes that the ALJ was correct in his decision

01:25 - 18.580 because there was no evidentiary hearing on the abuse allegations.

01:25 - 23.118 He argues that the protection from abuse provisions giving judges discretion

01:25 - 26.921 on whether to order a firearm prohibition and consent agreements

01:25 - 30.558 indicates that there is no strict prohibition under federal law

01:25 - 33.695 like that advocated by PSP.

01:25 - 39.033 Otherwise, no such discretion would have been enacted by the General Assembly.

01:25 - 41.302 To further illustrate this point, Mr.

01:25 - 45.540 GROSS cites the portion of the PSA Act stating that any firearm prohibition

01:25 - 50.211 terminates in any portion of a PFA order prohibiting the possession of firearms

01:25 - 54.782 expires or is otherwise vacated by the trial court.

01:25 - 58.620 He argues that if the firearm prohibition would continue under federal law

01:25 - 02.991 while the PFA order without a firearm prohibition is active,

01:26 - 05.693 then the statutory authority for the trial court

01:26 - 10.532 to remove the firearm prohibition in such an order would be meaningless.

01:26 - 11.132 The parties

01:26 - 14.102 agree that this is a matter of first impression in the Commonwealth

01:26 - 15.570 and that there are conflicting

01:26 - 19.541 persuasive authority from federal courts on the issue.

01:26 - 22.443 In answering the question what is a hearing,

01:26 - 25.180 the court will have to consider the text of the PFA Act

01:26 - 28.183 and the definition of hearing under federal law

01:26 - 30.585 and in its decision may impact how

01:26 - 34.255 PFA actions are handled in Pennsylvania and will likely control

01:26 - 38.593 how PSP considers clearance requests in similar circumstances.

01:26 - 41.529 Let's See what the parties have to say on the matter.

01:26 - 42.497 So good morning.

01:26 - 44.666 May it please the Court? My name is Andrew Lovett.

01:26 - 46.568 I am an assistant counsel with the Pennsylvania State

01:26 - 49.337 Police, representing the agency here as petitioner.

01:26 - 52.574 I would like to reserve 3 minutes possible.

01:26 - 56.544 So in this case, in this case,

01:26 - 01.249 there are really no contested facts.

01:27 - 04.152 My friend on the other side and I were both present.

01:27 - 09.090 Administrative hearing is not contested that the respondent was the

01:27 - 13.328 in in a protection from abuse order action in Fulton County

01:27 - 15.964 that there was a temporary order issued.

01:27 - 18.766 There was a follow up petition

01:27 - 22.303 final PFA that there was a hearing set

01:27 - 25.573 for that final hearing or final petition hearing

01:27 - 30.311 and that he was notified of the time place and date of that hearing.

01:27 - 32.814 It's also not contested that he was represented by counsel.

01:27 - 36.851 Again, my friend on the other side was was respondent's attorney,

01:27 - 41.589 but he then amended agreed to the introduction

01:27 - 46.661 of that final PFA order without going to the full contested hearing.

01:27 - 49.797 There was also a background check when Mr.

01:27 - 53.968 Gress tried to pick up a firearm after the introduction of the order,

01:27 - 57.338 which my client denied him because of the existence

01:27 - 00.074 of that final protection from abuse

01:28 - 04.379 order based on the federal firearm, protect

01:28 - 06.381 federal firearm, domestic violence

01:28 - 10.051 protection order, prohibition 1922

01:28 - 12.720 at the administrative hearing in this case,

01:28 - 16.357 because there is no because you waive the hearing.

01:28 - 20.094 Therefore part of the statute doesn't apply because typically

01:28 - 23.965 a hearing would have to be provided with the opportunity to be heard

01:28 - 26.701 and therefore stated in order

01:28 - 30.338 that the firearm should not be

01:28 - 34.609 provided because of the order.

01:28 - 38.179 There's a lot to unpack there and there is a light on

01:28 - 42.216 my client's position and the ALJ incorrect.

01:28 - 45.119 Is is that the ALJ incorrectly

01:28 - 49.390 decided this case because

01:28 - 52.560 Mr. Grass was afforded

01:28 - 56.297 the opportunity for a hearing is what the federal statute requires

01:28 - 00.201 because he declined it and therefore that becomes a non-issue.

01:29 - 01.803 Absolutely, Judge.

01:29 - 04.605 But federal statute 1920 2g8

01:29 - 07.175 There are three requirements for that to exist.

01:29 - 07.542 Really.

01:29 - 10.678 Only the first 922 A

01:29 - 13.715 is is an issue in the adjudication in this appeal,

01:29 - 14.349 and that's there

01:29 - 17.752 be a hearing that the individual be given actual notice of the hearing

01:29 - 21.222 and that they have an opportunity to participate in that hearing.

01:29 - 25.393 All three of those sub elements are present here, but

01:29 - 30.231 the idea is to be able to make findings that a hearing, no findings were made here

01:29 - 36.437 and a consent decree is was entered

01:29 - 37.405 stating that.

01:29 - 42.944 And that's what they looked at, saying that this did not apply to his firearm.

01:29 - 47.615 So isn't that permissive language of section 61 eight may

01:29 - 51.586 include a prohibition on the defendant's possession of a firearm?

01:29 - 57.158 Are you essentially eviscerating that by saying you can't put that now in a

01:29 - 59.427 No, Your Honor, we're going to I'm sorry.

01:29 - 00.962 Okay. No, Your Honor.

01:30 - 05.233 And there's a lot to unpack in that question to the federal statute.

01:30 - 09.804 So there's interplay between the Federal Gun Control Act of 1968, as amended,

01:30 - 14.876 and then the Pennsylvania Uniform Firearms Act in my client's petition position

01:30 - 17.845 that he's he's prohibited under both.

01:30 - 21.249 Now, in terms of the federal statute,

01:30 - 23.684 there's only the requirement that there be the hearing

01:30 - 26.721 he be given notice and an opportunity to participate.

01:30 - 28.623 The federal Circuit had a hearing.

01:30 - 29.891 You have findings?

01:30 - 30.625 Yes, Your Honor.

01:30 - 35.930 And and the other hearing and the other elements of of 922, G, eight

01:30 - 39.367 B and C are two of the additional elements.

01:30 - 43.805 There has to be findings of a relationship of an intimate partner

01:30 - 48.576 between the petitioner for the protection order and the defendant.

01:30 - 53.748 The order also has to prohibit certain activity as well,

01:30 - 56.150 Your Honor in terms of

01:30 - 59.520 there not having been an actual contested evidentiary hearing,

01:30 - 03.424 I think for purposes of the federal prohibition, that's of no moment

01:31 - 07.695 because the point of a hearing in that

01:31 - 11.098 context would be to contest all of those things would be to contest

01:31 - 16.437 the relationship would be to contest the allegations in the petition

01:31 - 17.972 that resulted in the hearing.

01:31 - 23.878 And if you agree to all of those things, as the respondent did here, the PFA,

01:31 - 27.181 the PFA was entered by his with his agreement.

01:31 - 28.115 He agreed to it.

01:31 - 31.853 All he did, he agreed to relinquishment

01:31 - 34.989 of his firearm and it of sounds like to me

01:31 - 39.360 that your argument is that because of the protective order

01:31 - 43.297 and you decline the hearing, you have to relinquish your firearm.

01:31 - 46.834 But to me there's like a missing step here that it's that

01:31 - 51.205 last piece that like Judge McCullough was pointing out, there is no finding

01:31 - 55.176 that you must relinquish the firearm because of the protective order.

01:31 - 01.249 And that is one of the two possible ways in terms of the state firearm prohibition.

01:32 - 04.919 But that state level prohibition can come into existence

01:32 - 07.788 for purposes of the federal prohibition in 1922.

01:32 - 10.591 Your Honor, Congress didn't care

01:32 - 14.562 if in front of a court or a fact finder in one of these type of hearings

01:32 - 17.999 says defendant, you must relinquish your firearm.

01:32 - 21.035 They don't care if it's an agreement

01:32 - 24.906 between the individual asking the order and the defendant

01:32 - 28.376 that he doesn't have he or she doesn't have to give up their firearm.

01:32 - 31.812 If Congress had wanted to make that an element of 922 eight,

01:32 - 35.349 it clearly could put it in the statute and it didn't.

01:32 - 37.318 But Judge, to your question, Judge

01:32 - 40.321 McCullough's question, for purposes of the state firearm

01:32 - 46.127 prohibition in section 60 105c6, there's two ways that can come into being.

01:32 - 50.965 The first part of that paragraph subsection is, is that

01:32 - 56.270 there is a final over the individual is the subject of a final PFA order which Mr.

01:32 - 01.242 addresses and the trial court finds

01:33 - 02.910 that the individual

01:33 - 07.782 or indicates that the individual must relinquish his or her weapons.

01:33 - 11.218 And that's a finding that's made pursuant to the Pennsylvania for Protection

01:33 - 12.053 from Abuse Act.

01:33 - 16.190 I think that's section well, Title 23, Section 6108.

01:33 - 18.526 They're both Chapter 61

01:33 - 21.729 and that's and that's under the PFA act.

01:33 - 25.399 Then In 2018, the General Assembly amended

01:33 - 30.171 61 to 5 C six to include a second way a state firearm

01:33 - 34.875 prohibition can exist and that's what the ACP believes exists here.

01:33 - 39.113 It's an incorporation by reference of an existing federal prohibition.

01:33 - 44.318 So you either have a final PFA with the weapon relinquishment box checked

01:33 - 47.655 or you're subject to the federal firearm prohibition

01:33 - 49.523 and that federal firearm prohibition.

01:33 - 53.094 Your Honor, honors can come about through any of hearing

01:33 - 56.964 where the requisite elements of 920 2g8 are met.

01:33 - 58.332 It could be a bail hearing.

01:33 - 02.069 It doesn't have to be a PFA hearing under the Protection from Abuse Act

01:34 - 06.007 and in a bail hearing there's no, you know, weapon

01:34 - 09.477 box to check that

01:34 - 12.046 that argument your honor or that position

01:34 - 16.484 that respondent took regarding the relinquishment of firearm box.

01:34 - 19.053 I think that is that is a very attractive argument.

01:34 - 22.523 But I also think in the facts of this particular case, considering what

01:34 - 27.662 the federal statute says, it's it's it's a no no signal.

01:34 - 31.966 You had said under the federal law, it doesn't matter the type of hearing.

01:34 - 34.902 But I think you could take it a step further and say

01:34 - 37.738 or no hearing at all as long as there was notice.

01:34 - 41.075 Absolutely. And and the opportunity.

01:34 - 41.909 Yes, Your Honor.

01:34 - 44.879 And and it's appears

01:34 - 47.648 that the party find themselves in the interesting position of

01:34 - 49.550 I think this may be a case of first impression.

01:34 - 53.888 I know certainly in front of the ALJ it is but

01:34 - 54.588 the PSP

01:34 - 58.659 cited several federal Circuit Court of Appeals decisions

01:34 - 01.662 from across the country that have dealt

01:35 - 04.331 the issue of 922 eight

01:35 - 08.102 and the hearing concept that's in it.

01:35 - 12.573 While I appreciate they're not mandatory precedent, they certainly are persuasive.

01:35 - 14.475 And since

01:35 - 18.612 the issue in issue of federal law is is squarely

01:35 - 19.780 in front of your.

01:35 - 22.783 Your Honor, we that would be very informative.

01:35 - 26.253 For example, the Fifth Circuit, the United States Bank and United States

01:35 - 29.724 versus banks, it's this situation

01:35 - 32.660 a final protection from abuse or excuse me,

01:35 - 36.897 a final domestic violence protection order is scheduled at that hearing.

01:35 - 38.432 Bank shows up.

01:35 - 41.802 Banks has counsel they banks

01:35 - 45.940 chooses to forego his opportunity to participate in the hearing

01:35 - 50.878 by agreeing to the order and on appeal, the Fifth Circuit had no problem

01:35 - 52.313 with that whatsoever.

01:35 - 56.317 And this is also the same court of appeals that about 13 months earlier

01:35 - 59.920 and United States versus us through screw Hills.

01:35 - 02.757 April, I'm not sure how it's pronounced,

01:36 - 06.227 had said that an individual who was illiterate,

01:36 - 08.195 who there wasn't a petition filed,

01:36 - 11.198 but he showed up at the courthouse and agreed to an order

01:36 - 14.702 and a district attorney's office without having even had an opportunity

01:36 - 18.806 to meet with a judge that under those egregious facts, that that person

01:36 - 21.976 didn't have a hearing because there was no opportunity to participate.

01:36 - 26.614 So as you said, the federal law doesn't specifically say a protective order

01:36 - 29.550 can apply in various situations.

01:36 - 33.687 So how do we get from the fact that he was given

01:36 - 37.792 the opportunity for a hearing and to participate and he declined that.

01:36 - 39.727 And then there's

01:36 - 43.230 in any basis to say that because there was a protective order,

01:36 - 46.233 he relinquished the right to his gun.

01:36 - 52.439 So how do we jump from A to Z so quickly with nothing in between?

01:36 - 55.142 I would suggest, Your Honor, that is no different

01:36 - 59.380 than the vast majority of other federal and state firearm prohibited.

01:36 - 02.783 If you were convicted of felony burglary, you're not

01:37 - 06.620 necessarily told that you have a state and federal firearm prohibition.

01:37 - 10.391 If you are three or two or three or three under the Mental Health Procedures Act,

01:37 - 13.194 you're not necessarily told you have to relinquish your right

01:37 - 16.664 that the but something I'm having difficulty drawing an analogy

01:37 - 20.601 to say that there's a criminal conviction or there's a

01:37 - 24.872 a mental determination and that either protective orders

01:37 - 28.075 that therefore you must relinquish your firearm.

01:37 - 31.779 So I'm just trying to get to where you're drawing the conclusion

01:37 - 33.414 and what is in between.

01:37 - 35.749 That gives us the means to get to your conclusion.

01:37 - 38.752 And I'm sorry, Judge, I think I misunderstood your question that.

01:37 - 42.089 Could I ask you to ask it again?

01:37 - 45.025 Just my my understanding is what you're saying is under the federal law,

01:37 - 48.562 because he was given an opportunity for a hearing and to participate,

01:37 - 51.332 he declined and he has the protective order.

01:37 - 55.069 Therefore, we can require him to relinquish his firearm.

01:37 - 57.338 Yes, sure.

01:37 - 00.474 But I'm asking, is the meat to draw the conclusion

01:38 - 04.545 that simply because he was offered a hearing, which he declined

01:38 - 07.648 and everybody acknowledges that it a protective order,

01:38 - 12.553 how do we get to the automatic conclusion that he must relinquish his firearm?

01:38 - 15.923 It's it's the simple operation of the federal statute, Your Honor.

01:38 - 20.160 And I would also note that what's the language specifically

01:38 - 23.364 you're relying on to give us the meat to get to the conclusion

01:38 - 24.632 you want us to draw in.

01:38 - 30.170 In 18 U.S.C., Section 922 eight, it says it's unlawful for an individual

01:38 - 34.975 who to possess or ship in interstate commerce

01:38 - 37.011 to who has is

01:38 - 41.048 the subject of a court order that which he's given,

01:38 - 44.451 that there's a hearing, he's given notice and an opportunity to participate.

01:38 - 47.121 And the order meets those two other requirements

01:38 - 50.124 to possess or ship in interstate commerce of firearms.

01:38 - 51.592 The statute is clear.

01:38 - 53.527 It is only in Pennsylvania.

01:38 - 57.331 Well, firearm well, I suppose theoretically it's possible

01:38 - 03.671 that a firearm could not travel in or affecting interstate commerce

01:39 - 04.939 would suggest that it

01:39 - 09.443 is almost impossible for that to happen, given that there are any state

01:39 - 12.513 prohibitions, state law prohibitions?

01:39 - 13.580 Well, yes, Your Honor.

01:39 - 19.353 6105 18 Section 60 105c6i

01:39 - 22.623 would also note, Your Honor, to Jacoby, that's my understanding.

01:39 - 27.027 Under the protection from Abuse Act, when the initial temporary PFA is

01:39 - 29.363 is issued under Section

01:39 - 33.701 6107 of Title 23, I believe there are certain

01:39 - 37.471 notices that need to be given to the defendant, including about

01:39 - 42.543 the potential application of both the state and federal firearm prohibition.

01:39 - 44.812 I cannot remember the exact subsection

01:39 - 47.614 you've done great on citing section them for us.

01:39 - 49.917 If I can ask one more question.

01:39 - 54.388 The PFA in this case was basically and I don't want to diminish the

01:39 - 56.690 seriousness of such a document, but

01:39 - 00.761 it was basically a box check form.

01:40 - 02.663 There were no substantive

01:40 - 06.667 findings, this was stipulated

01:40 - 09.737 and therefore it differs

01:40 - 12.740 significantly from the facts underlying.

01:40 - 15.042 Rahimi Right.

01:40 - 18.445 I mean, in Rahimi there were specific factual findings

01:40 - 22.649 that served the Supreme Court's recent decision, but in this case

01:40 - 27.087 there weren't specific factual findings regarding a threat.

01:40 - 30.824 It there are prohibitions in the PFA,

01:40 - 34.294 but there are no fact findings in the PFA.

01:40 - 35.496 Would you agree with that?

01:40 - 41.769 I would agree that a copy of the PFA order that we put in at the hearing

01:40 - 44.805 doesn't contain a lot of that type of information.

01:40 - 51.178 Judge It's the electronic printout version from the from what we hope

01:40 - 53.414 that the protection from abuse database,

01:40 - 56.050 so it's a preprinted form that the profanities officer

01:40 - 00.587 the court fills out so it can be put in this electronic database as to, you know,

01:41 - 05.626 what's in actual trial court record judge at the, at the courthouse.

01:41 - 07.261 I don't know one way or the other.

01:41 - 11.665 Honestly, we did not obtain that for purposes of the administrative hearing.

01:41 - 13.267 So there could be things there.

01:41 - 15.302 There could not. I just honestly don't know.

01:41 - 16.470 But you're correct.

01:41 - 20.541 The copy of the PFA order that was put in in this case is is one

01:41 - 25.112 has a series of preprinted language and sections and boxes

01:41 - 32.853 and things like that and there are certain findings mean thank you very, very much.

01:41 - 34.388 I know the time goes fast

01:41 - 40.427 when we're engaged.

01:41 - 41.728 Please begin.

01:41 - 43.997 Good morning, Your Honor. May it please the court.

01:41 - 48.202 Eric Hall Baker On behalf of Chad Gresh,

01:41 - 52.439 the Pennsylvania State Police seem to concede

01:41 - 56.143 that Pennsylvania law contains a lot of very permissive language

01:41 - 00.781 and allows the trial court's discretion as to whether or not

01:42 - 06.120 to order relinquishment of firearms upon the entry of a PFA order.

01:42 - 09.223 And instead they rely on the federal statute,

01:42 - 12.226 which they have previously brought to

01:42 - 14.895 the Pennsylvania statute.

01:42 - 18.265 6105 actually reference this the federal law.

01:42 - 26.473 So I'll begin by giving a little bit of a disclaimer I or my own feelings on this.

01:42 - 29.743 I find it unfortunate that lots of times as a court

01:42 - 34.681 we can say the state legislature just needs to be prompted to change the law.

01:42 - 38.585 We can't say that in this scenario because it's about a federal law.

01:42 - 44.291 So if this court needs to reach a decision that Mr.

01:42 - 48.662 Grant was in fact prohibited from having the firearm,

01:42 - 52.065 this is going to cause an upheaval

01:42 - 55.335 in how many counties, rural counties,

01:42 - 59.773 apply PFA law, because right now, oftentimes

01:42 - 03.610 someone that's a gun owner will say, you know what, I'll consent to the PFA.

01:43 - 05.279 I don't want to be around this person.

01:43 - 06.346 And usually it's a

01:43 - 10.551 I don't want to be around her anymore, but I do want to go hunting with my son.

01:43 - 12.152 So I'll agree to the PFA.

01:43 - 14.788 We will have the hearing and I get to go hunting,

01:43 - 18.358 which is a bonding experience and a means of food.

01:43 - 22.696 So I understand all of that importance in that context.

01:43 - 23.163 But we don't

01:43 - 26.300 have the authority to ignore what the Federal statute says.

01:43 - 30.170 And then there's federal cases interpreting the federal statute.

01:43 - 33.240 And then where I have a concern, when you said

01:43 - 35.242 you jumped into the Pennsylvania law.

01:43 - 41.048 So we look at 6105 sex and it has

01:43 - 42.883 a reference of state law.

01:43 - 45.919 And if it requires a relinquishment of firearms,

01:43 - 50.591 but then it also says or is otherwise prohibited from possessing

01:43 - 54.194 or acquiring a firearm under the federal law.

01:43 - 56.163 The specific I just referenced.

01:43 - 58.465 So how how do we get around that?

01:43 - 01.468 Well, I mean, you are correct that that is what

01:44 - 06.139 60 105c6 says, Yeah, but my position is that

01:44 - 09.876 this situation does not fall under the federal statute either.

01:44 - 12.746 And it being because the federal statute reads

01:44 - 16.717 after a hearing of which the defendant had notice an opportunity to write.

01:44 - 20.120 But then the federal case says that interpret

01:44 - 23.123 that section reference

01:44 - 26.193 after a doesn't have to mean a hearing.

01:44 - 30.197 It can mean the notice for a hearing, the opportunity for a hearing,

01:44 - 33.300 which current then includes saying, I don't want to have the hearing.

01:44 - 36.803 No, no, no, no. I don't believe that's correct.

01:44 - 38.305 And prove me wrong.

01:44 - 39.206 Okay.

01:44 - 42.609 Now, the multitude of cases that are cited by the state police

01:44 - 46.079 from other circuits that

01:44 - 50.484 touch on the concept of was a hearing necessary or not.

01:44 - 54.288 All of them are not analogous to the situation

01:44 - 57.691 because they pretty much without exception, involve a defendant

01:44 - 01.328 who was adjudicated as a person not to possess.

01:45 - 04.698 He subsequently prosecuted

01:45 - 06.033 under that statute.

01:45 - 10.937 And then on appeal he is complaining of a lack of due process

01:45 - 18.512 or the constitutionality of 922 or a

01:45 - 22.249 the the

01:45 - 24.751 all of the in all of those cases,

01:45 - 28.889 it was a criminal matter in which the defect

01:45 - 32.426 the person who was previously adjudicated, a person not possessed

01:45 - 36.330 is now a criminal defendant being prosecuted for violating that.

01:45 - 39.833 Here we have Mr. Gress

01:45 - 40.634 appearing in

01:45 - 46.573 Fulton county at the designated time for his PFA hearing with myself

01:45 - 50.677 and instructed by the trial judge to go out in the hall

01:45 - 54.548 and see if you all can work this out before I before I hold a hearing.

01:45 - 59.586 We did that and we came back and informed the judge that we had made an agreement

01:45 - 03.490 that was bargained for consideration on behalf of Mr.

01:46 - 06.193 Gress, that he waved that hearing with the specific intent

01:46 - 08.195 that it would allow him to keep his firearms.

01:46 - 10.030 Right. It's it's a weird situation.

01:46 - 13.533 I don't like to use the phrase win win and something as tragic as face,

01:46 - 16.903 but the current scenario you're explaining actually is a win win because the person

01:46 - 21.942 that wants the protection order gets it and your client gets to keep it.

01:46 - 22.509 Exactly.

01:46 - 27.013 Yeah, it's part of the agreement because the PFA document

01:46 - 30.117 itself, it's crossed out where.

01:46 - 32.319 It says relinquishment of firearm.

01:46 - 33.754 That is correct.

01:46 - 37.324 Isn't that a huge statement by everybody?

01:46 - 41.561 And so how do you undo that even the federal law?

01:46 - 43.130 Well, I mean,

01:46 - 44.431 once again,

01:46 - 48.935 my position is that the federal law does not apply because no hearing took place.

01:46 - 49.169 Well.

01:46 - 52.439 So even if there had been a hearing and at the end of the hearing,

01:46 - 56.743 the trial judge had crossed out that section, what would happen?

01:46 - 00.147 Well, in that scenario, if he made a finding

01:47 - 03.383 after a hearing, he wouldn't be able to cross out that section.

01:47 - 05.419 I mean, I won't dispute that.

01:47 - 07.788 So the ALJ just said,

01:47 - 11.992 I'm going to look at the actual language of 922

01:47 - 16.263 eight issued after hearing which person and then went on to say

01:47 - 20.000 reasonable inference can be drawn from the statutory language

01:47 - 24.337 that if the parties to a dispute reach an agreement that obviate the need

01:47 - 26.339 for an evidentiary hearing,

01:47 - 27.073 that agreement

01:47 - 30.844 made with approval, the court encompassed the question of firearm disability.

01:47 - 34.381 And I think the ALJ is opinion is pretty straightforward.

01:47 - 37.017 He looked at the actual language.

01:47 - 40.520 So then I was going to ask you also a Judge

01:47 - 42.189 Kobi just asked you about crossing out.

01:47 - 45.792 But my question is then, would you would your client have entered

01:47 - 49.062 into this consent agreement for PFA

01:47 - 52.499 if the condition for relinquish

01:47 - 57.137 of a relinquishment of a firearm had not been waived?

01:47 - 00.106 I can tell you definitively no.

01:48 - 03.510 And I'll just say that

01:48 - 07.447 the ALJ is opinion that this is a case of first impression for Pennsylvania.

01:48 - 12.786 Absolutely floored me because the agreement that I brokered for Mr.

01:48 - 14.788 Gress and Fulton County that day,

01:48 - 18.258 I have brokered that same agreement for at least ten or 12 other

01:48 - 22.095 previous clients of mine before, and this issue never came up before.

01:48 - 24.698 I went in there telling him,

01:48 - 27.000 we can we can make a deal with her.

01:48 - 31.137 She'll get her PFA, keep your weapons and I will get any of those cases

01:48 - 34.774 go before an administrative hearing. No.

01:48 - 38.512 So I mean, for the hearing officer, it could be a case of first Sergeant.

01:48 - 44.017 No, because all those previous guys, when the final PFA was signed

01:48 - 49.256 that did not contain the firearms prohibition, they then went the sheriff

01:48 - 53.293 and retrieved their weapons and were able to lawfully continue

01:48 - 55.762 possessing their weapons while the PFA was in place.

01:48 - 57.697 I mean, I don't know how.

01:48 - 01.868 This particular case caught the attention of the Pennsylvania Instant Check system

01:49 - 03.403 when so many others have not.

01:49 - 05.739 But that's apparently what happened. That's what I wondered.

01:49 - 08.341 Something different happened like Button got clicked.

01:49 - 11.645 Something happened to trigger, no pun intended.

01:49 - 13.446 It triggered this because the

01:49 - 17.450 the procedure you're discussing, it happens all over the place.

01:49 - 17.884 Absolutely.

01:49 - 20.654 But yet this time something happened.

01:49 - 24.324 And I can feel for you because you had told your client what you told them.

01:49 - 25.792 And then boom,

01:49 - 29.162 and you reference this being rural counties,

01:49 - 30.330 If you've never been to Fulton County,

01:49 - 34.301 it's probably one of the most rural ones we have.

01:49 - 37.070 But yes, I've

01:49 - 40.173 I've represented many PFA defendants who have negotiated

01:49 - 44.878 this exact same scenario and this situation never arisen before.

01:49 - 46.713 Now, I don't know if that's some kind of

01:49 - 48.848 updating and the technology around the picks

01:49 - 50.684 check system that may have caused that or what,

01:49 - 53.687 but it's never happened to me before in eight years.

01:49 - 58.258 What I don't know is and I'll say we as if I'm in your shoes,

01:49 - 02.262 but if we the boots on the ground attorneys making these conversations,

01:50 - 05.298 we're just, for lack of a better phrase, getting away with it.

01:50 - 08.535 Because if it's in violation of the federal law,

01:50 - 13.840 then maybe this whole technique shouldn't have been happening anyway.

01:50 - 16.209 Well, I mean, think it's not in violation of the law?

01:50 - 16.876 Well, no.

01:50 - 20.046 I mean, I continue to come back to the idea that the federal statute

01:50 - 23.550 says after a hearing and when you bypass the hearing,

01:50 - 26.886 you're bypassing the federal restrictions, getting an evidentiary hearing.

01:50 - 27.654 Correct.

01:50 - 30.991 That's a key term re evidentiary hearing because there was a hearing.

01:50 - 32.058 No, no, there was not.

01:50 - 33.593 No, no, it was not.

01:50 - 35.462 Well, there was a hearing.

01:50 - 36.363 There was a notice.

01:50 - 37.564 There was a court date scheduled.

01:50 - 41.434 There was notice an opportunity to participate

01:50 - 42.669 in a waiver

01:50 - 46.206 basically by entering into the PFA by consent.

01:50 - 47.474 Correct. Okay.

01:50 - 48.942 And then what happens with that form?

01:50 - 53.613 You go into the courtroom and you say on the record, Judge, there's been a consent.

01:50 - 56.149 We return to the courtroom, go back on the record

01:50 - 59.152 and say that the parties have reached an agreement.

01:50 - 01.488 Mr. Grass will consent to the

01:51 - 04.591 the entry of a final PFA without admission

01:51 - 09.863 in exchange for his firearms ruling not being prohibited from possessing firearms.

01:51 - 12.332 Your position is that that's not even a hearing.

01:51 - 13.600 Yes. Okay.

01:51 - 17.103 That's the that's the court ratifying an agreement between the parties.

01:51 - 17.604 Okay.

01:51 - 18.238 But like,

01:51 - 21.841 if it was a hearing, you would distinguish it as the administrator

01:51 - 25.145 of hearing officer did between a hearing

01:51 - 28.715 and an evidentiary hearing, as other cases have throughout the country.

01:51 - 32.252 Well, if the parties could not make an agreement

01:51 - 34.621 and the court proceeded to an evidentiary hearing

01:51 - 38.425 and then after that hearing made a finding that

01:51 - 39.626 firearms relinquishment

01:51 - 42.662 was appropriate then my client would be out of like

01:51 - 47.267 a consent order stipulation of evidence on the record during the hearing.

01:51 - 48.501 I'm sorry, Judge, consider it again.

01:51 - 52.806 Consent order a stipulation of evidence that's put on the record

01:51 - 53.940 during the hearing.

01:51 - 57.510 Well, other words, it's an agreement that's been made here being held.

01:51 - 01.247 And this is our evidence that we've agreed and this is our stipulation.

01:52 - 06.553 And we, the PFA, will be granted and the firearm will not be relinquished.

01:52 - 09.956 I don't believe it is no,

01:52 - 18.331 but I guess some

01:52 - 21.401 one more

01:52 - 24.270 thing that I should mention

01:52 - 27.474 or maybe not the job, the genres, everything else.

01:52 - 30.477 For me, if I may be really mute,

01:52 - 34.848 you lose your place.

01:52 - 36.216 Any other questions?

01:52 - 39.085 Well, does distinguish for me the federal cases.

01:52 - 44.324 So I was under the impression that the federal cases in

01:52 - 47.761 interpreting this specific section were indicating that

01:52 - 50.730 even if there was the opportunity for the hearing

01:52 - 54.400 and the notice that there was no hearing it was a no moment.

01:52 - 58.705 And tell me again why those aren't on point.

01:52 - 00.540 Well, I mean it in

01:53 - 03.710 most of those cases, the hearing actually did.

01:53 - 06.613 And in the couple that didn't, I mean, there are one or two,

01:53 - 12.218 I believe Whitman would be one where the

01:53 - 15.355 the parties had had reached a protection

01:53 - 19.425 order by consent beforehand without a hearing.

01:53 - 24.798 However, what's distinctive about that is that that that stipulated to

01:53 - 28.401 protection order did include firearms relinquishment

01:53 - 30.970 where whereas this one

01:53 - 33.973 was created with the specific

01:53 - 36.576 intent of not creating firearms prohibition.

01:53 - 40.113 So Leibman subsequently violated a protective order that he had

01:53 - 50.757 previously agreed to that a firearms restriction that he had consented to.

01:53 - 54.060 Okay,

01:53 - 56.362 how would this ultimately be enforced?

01:53 - 59.365 So you go before the trial court Judge.

01:53 - 02.368 We've worked out this agreement.

01:54 - 05.772 He the doc

01:54 - 09.843 places in an order on the record.

01:54 - 14.480 And then out of nowhere, the state police come and go, no, no, no.

01:54 - 18.985 You can't have the trial court uphold its own order.

01:54 - 22.422 The federal law comes in, and I don't know exactly.

01:54 - 26.159 We still don't know, based on what counsel opposing counsel stated,

01:54 - 30.096 where in the federal law the trial court went astray.

01:54 - 32.966 Because it seems to me that the trial court

01:54 - 36.236 was performing its duties properly.

01:54 - 38.872 Well, I would agree with you, Your Honor.

01:54 - 41.674 I mean, the

01:54 - 44.344 Pennsylvania statute seems to make it very clear

01:54 - 48.214 that the General Assembly understands the federal law to be permissive

01:54 - 52.151 and to give trial courts discretion as to,

01:54 - 54.888 you know, must prohibit as opposed to may prohibit.

01:54 - 58.391 That's exactly what it what it's

01:54 - 03.096 60 108a1a1a and a1b most firearms

01:55 - 08.167 and I'm paraphrasing your prior firearms must be prohibited after the final order.

01:55 - 11.871 B may be prohibited pursuant to any final agreement.

01:55 - 15.308 Now there would be no need for a1b

01:55 - 21.247 if all PFA cases are resolved and firearms restriction

01:55 - 23.549 you know, and that's that's the position that the state police

01:55 - 28.821 are asking this court to adopt, that it is impossible for a

01:55 - 31.224 person to be subject to a protective order

01:55 - 35.161 or temporary or final and not lose their right to possess firearms.

01:55 - 37.864 Now I don't believe that's right, and I believe that

01:55 - 41.634 it turns on the requirement that a hearing be held in the federal law.

01:55 - 44.637 And if there if a hearing is not held,

01:55 - 48.775 then 922 G is not applicable in that situation.

01:55 - 52.845 Was there a you were there was was there a court reporter?

01:55 - 56.683 Yes, there was a transcript made, Yes.

01:55 - 58.651 Okay. Then I do have that actually.

01:55 - 01.988 It's not in the record, is it? I don't believe okay,

01:56 - 03.856 I don't have anything else,

01:56 - 07.260 otherwise there'd be no need on the form to say firearm relinquished.

01:56 - 09.562 Well and actually I do have that with me, Your Honor.

01:56 - 10.730 I picked one up the other day.

01:56 - 14.000 The application for a PFA that is in

01:56 - 18.438 use in Franklin and Fulton Counties, which are two that are joint

01:56 - 21.007 that has a box right there that petitioner does

01:56 - 25.445 or does not request that the court order relinquishment of firearms.

01:56 - 30.316 So even on the front end, the application is giving the petitioner

01:56 - 34.687 the option to seek relinquishment or not?

01:56 - 36.522 Thank you.

01:56 - 39.525 I've got 10 seconds as a

01:56 - 40.593 thank you.

01:56 - 47.600 Thank you, Your Honor.

01:56 - 49.068 And and Your Honor, I'm

01:56 - 52.672 from Clinton County, so I think we give Fulton the run for its money.

01:56 - 55.908 They might beat us a little bit in terms of being a little bit more rural,

01:56 - 00.947 but I'm completely cognizant of those issues that you're talking about.

01:57 - 05.251 T to the question about what happened before,

01:57 - 08.321 they must not have gone through a pix check to try to get their firearms back

01:57 - 11.290 because before 2018,

01:57 - 14.093 the 79 amendments, which would added the disjunctive

01:57 - 18.031 half of sixth of 61 to 5 c six

01:57 - 21.300 we I have been doing you say that just chunk the path

01:57 - 22.702 you mean the reference to the.

01:57 - 23.536 Yes, your Honor.

01:57 - 26.539 Or prohibited under 922 G

01:57 - 30.977 My client would deny individuals based upon phase without the firearm

01:57 - 35.381 box checked, but we would just deny based on federal law.

01:57 - 38.384 So you're saying whenever there's a PFA file,

01:57 - 42.655 a protective order is entered all firearms must be relinquished.

01:57 - 46.225 I just have the blanket rule under the federal ban.

01:57 - 50.163 Yes, I would say I mean, you do have outliers like

01:57 - 55.301 like some of the federal cases based upon the very specific circumstances.

01:57 - 58.905 But yes, I would say generally speaking, yes.

01:57 - 01.374 And to your question originally,

01:58 - 05.278 to me Your Honor, and that you mentioned again to my friend,

01:58 - 07.113 the trial court

01:58 - 09.348 doesn't have to do anything

01:58 - 12.919 in terms of making a firearm, finding or saying

01:58 - 17.323 firearms must be relinquished for the federal law.

01:58 - 21.494 It has to do that under the state PFA act for an individual

01:58 - 24.997 to be required to relinquish firearms under that act,

01:58 - 29.435 and that has some cocktails at that finding under the PFA.

01:58 - 30.670 Why the trial court?

01:58 - 32.105 Why the trial court do anything?

01:58 - 36.542 I mean, well, the trial court had a, you know, a document in front of it,

01:58 - 40.480 it reviewed it and then gave it a stamp of approval.

01:58 - 44.217 And now basically we're going to say, you know what,

01:58 - 46.586 the federal laws supersede anything that you did.

01:58 - 49.055 And like, I don't know, it just seemed like all of that was a waste of time.

01:58 - 52.191 Well, Your Honor, under the PFA Act, if the trial court

01:58 - 56.095 either chooses to check the box when there's an agreement

01:58 - 59.365 or does it by a requirement of the statute,

01:58 - 03.936 when there's a full hearing that kicks that kicks off some relinquishment

01:59 - 08.841 requirements under the PFA Act, a 24 hour clock starts to run

01:59 - 13.146 if that box is not checked, the federal prohibition still exists.

01:59 - 18.985 The disjunctive part of 60 105c6 still kicks in, but the relinquishment

01:59 - 22.288 period is a little little longer under the way that statute.

01:59 - 27.193 So there's ramifications for that under the PFA Act.

01:59 - 30.029 But are you in place yourself in the shoes of the parties

01:59 - 33.966 like you go into court, the judge approves the

01:59 - 38.371 the agreement and then you leave and then you go, got you.

01:59 - 43.676 Under federal law, you can't get to give up your firearm,

01:59 - 44.243 Your Honor.

01:59 - 45.678 I mean, I'm not

01:59 - 49.782 sure exactly what you're pointing to, to give me the meat to get to the conclusion.

01:59 - 53.085 So under the federal law, we must rule that way.

01:59 - 56.355 Well, Your Honor,

01:59 - 00.026 my time, my 3 minutes is gone even quicker than the original 12.

02:00 - 03.062 I would note also that

02:00 - 06.265 under the state Supreme Court's decision here in Pennsylvania,

02:00 - 10.069 state police versus Paul Schock, and that's 836 Atlantic.

02:00 - 13.472 Second 110, A state trial court

02:00 - 17.043 cannot relieve an individual of a federal firearm disability.

02:00 - 19.712 That's a case that came up in a criminal conviction context.

02:00 - 21.047 But why bring that up?

02:00 - 23.449 Because even if the Fulton County Court of Common

02:00 - 25.351 Pleas or the Allegheny County Court of Common

02:00 - 26.485 Pleas wanted to say,

02:00 - 29.021 no, no, no, that federal prohibition doesn't apply to you,

02:00 - 30.623 they just don't have the ability to do that.

02:00 - 32.858 But with all due respect, that was a conviction.

02:00 - 35.294 It was. But

02:00 - 37.897 the crux is not the conviction.

02:00 - 40.900 It's the existence of the federal firearm prohibition.

02:00 - 42.001 Well, thank you.

02:00 - 42.335 Thank you.

02:00 - 45.338 The hearing. Thank you very, very much.

02:00 - 47.173 Appreciate again, another

02:00 - 50.876 very well argued and very interesting case.

02:00 - 54.046 In our next case, appellant Lucy Bennett Kalinsky appeals

02:00 - 57.049 from a decision of the Court of Common Pleas of Washington County,

02:00 - 00.086 which denied her motion return of property.

02:01 - 04.023 The property at issue here, which are two dogs, were seized by the police, started

02:01 - 07.293 criminal investigation related to a puppy mill.

02:01 - 10.263 Appellant was charged with animal cruelty, but the charges were

02:01 - 14.567 subsequently dismissed after the seized evidence was suppressed.

02:01 - 19.138 Thereafter, appellant filed the motion that is the subject of this matter

02:01 - 23.809 the trial court Relying on our Supreme Court's 2014 decision, the Commonwealth

02:01 - 27.913 Dick Allen determined that appellant waived her right to return to the property

02:01 - 32.852 because she filed her motion more than 30 days after the dismissal of the charges.

02:01 - 37.290 The motion here was filed 38 days after the charges were dismissed.

02:01 - 41.027 Appellant's appeal to this court followed

02:01 - 42.028 on appeal.

02:01 - 44.997 Appellant argues that the imposition of criminal procedures

02:01 - 48.301 into a civil process through the application of the Allen case

02:01 - 51.871 deprived her of property without due process.

02:01 - 54.640 Additionally, appellant maintains that the application

02:01 - 58.577 of the criminal court's jurisdiction to the civil forfeiture proceeding imposes

02:01 - 03.282 limitations on criminal defendants ability to seek return, seize property

02:02 - 06.385 without implicating their Fifth Amendment right to be free

02:02 - 09.388 from self-incrimination.

02:02 - 10.856 Finally, appellant,

02:02 - 13.659 that if the jurisdiction of the criminal Court is to be imposed

02:02 - 16.362 upon her and the petition for return of property,

02:02 - 19.999 she should have been afforded the benefit of an eight day delay due

02:02 - 24.070 to the health issues of her counsel.

02:02 - 25.938 The Washtenaw County District Attorney argues

02:02 - 28.541 that the Allen case does not provide

02:02 - 31.177 does not deprive the appellant of due process rights

02:02 - 35.181 and that the procedure set forth in that case to file a return of property

02:02 - 39.852 motion cannot simply be deemed impractical on the basis that it cannot be filed

02:02 - 42.855 prior to the disposition of criminal proceedings,

02:02 - 46.692 because the court stated that an individual may file such a motion

02:02 - 51.464 30 days after final disposition of the criminal charges because appellant

02:02 - 54.800 filed the return of property past the 30 day deadline.

02:02 - 59.705 The DA maintains the trial court lost jurisdiction to rule on the matter.

02:02 - 02.375 With that, let's listen to the argument

02:03 - 02.575 made.

02:03 - 03.909 He pleases Honorable Court.

02:03 - 05.378 My name is Dennis Pop Jazz.

02:03 - 07.613 I represent the appellant this matter.

02:03 - 10.282 That was the petitioner at the trial court below.

02:03 - 13.152 This is the owner of one a Shiatsu

02:03 - 16.789 named the Mighty Mouse and one Maltese name, Henry Mason.

02:03 - 19.892 I'm going to wish to reserve any rebuttal time.

02:03 - 22.428 I would ask to reserve 5 minutes, rebuttal time.

02:03 - 24.196 So you have it.

02:03 - 27.500 Thank you, Your Honor.

02:03 - 27.967 Here.

02:03 - 31.570 This this case is very unique

02:03 - 35.174 as set forth in my brief.

02:03 - 38.944 This case results from the seizure of these two animals.

02:03 - 43.048 On August 22nd of 2018.

02:03 - 46.719 There was a suppression hearing that was filed in that matter,

02:03 - 50.556 where the search warrant was determined to lack probable cause.

02:03 - 53.592 As a result, on September 13th,

02:03 - 56.762 2020, to the Commonwealth in no prior

02:03 - 00.733 the charges against the appellant here, In which would it be?

02:04 - 03.669 Lucy Bennett Kosky How do we get around?

02:04 - 06.272 Alan?

02:04 - 07.339 You you're

02:04 - 11.877 my argument regarding Alan would be that it

02:04 - 16.081 I don't believe it was constitutional was applied

02:04 - 19.385 If the Alan decision

02:04 - 23.522 was determined strictly on a waiver determination.

02:04 - 27.493 It was determined that a criminal defendant

02:04 - 32.431 who was participant in those proceedings where you had a seizure

02:04 - 35.000 after the closure, those proceedings

02:04 - 39.171 essentially did not apply or the failed to ask

02:04 - 43.142 for the return of property and appropriate fail period.

02:04 - 46.212 As the dissent it

02:04 - 50.616 and thus the court there would lack jurisdiction in the criminal court.

02:04 - 55.754 However, the issue in the Alan case really didn't the analyze

02:04 - 59.091 where it should have come from, which the dissented

02:04 - 03.362 as it relates to a property rights analysis,

02:05 - 07.967 it just analyze it as a waiver, not a property rights analysis.

02:05 - 12.404 The central question as Chief Justice Todd had looked at the in

02:05 - 17.676 the dissenting opinion, which I believe was the correct analysis, and that matter

02:05 - 21.113 was that we can't follows, as

02:05 - 25.784 I understood it, Judge, But I think that would have been the correct analysis.

02:05 - 30.422 And I think that the decision in Alan is in fact unconstitutional

02:05 - 34.193 as it can't be applied correctly.

02:05 - 36.862 The property rights in of people

02:05 - 40.633 who have seized property then don't just heat extinguished.

02:05 - 43.469 For example, as we sit here today, the question

02:05 - 46.772 I would pose, the court is who owns these two dogs?

02:05 - 49.808 Who has title

02:05 - 53.612 based on the court and based on the court's opinion below?

02:05 - 55.781 I don't know the answer to that question.

02:05 - 59.051 Now. I believe it's axiomatic

02:05 - 03.689 in all of our jurisprudence that where you have a property right,

02:06 - 07.860 that property cannot be extinguished by the government without due process.

02:06 - 10.996 That's baked into our Constitution.

02:06 - 12.498 No one disputes that.

02:06 - 15.701 Well, I think one thing that's different here,

02:06 - 21.507 and I don't know if you did this intentionally or not in Alan,

02:06 - 24.710 the application for return of the property came through

02:06 - 29.048 and you mentioned the criminal docket, but that is the entire reason that the rule

02:06 - 32.585 was looking at jurisdiction and that 30 days was triggered, triggered.

02:06 - 34.620 This isn't at the criminal docket.

02:06 - 35.220 That's correct.

02:06 - 38.190 Or that is my second argument in my brief

02:06 - 41.927 as. Carmen when you file your petition for return of property

02:06 - 46.098 that goes under a miscellaneous docket, it is a another proceeding

02:06 - 49.034 wholly set forth in apart from the criminal proceeding.

02:06 - 52.504 So the jurisdictional issues raised in Alan are applicable here.

02:06 - 55.507 I would argue that as I was my second point in the

02:06 - 58.978 in my brief, Your Honor,

02:06 - 01.847 that those restrictions don't apply.

02:07 - 06.251 This is as the Court and Alan indicated,

02:07 - 10.556 while it's quasi criminal, these primarily civil proceedings, we're talking

02:07 - 16.462 about the rights of property, the rights of persons in their property,

02:07 - 19.531 the issues raised in Alan don't

02:07 - 23.702 necessarily consider the interplay between

02:07 - 28.507 the criminal context of those cases and the request to ask for property back.

02:07 - 34.213 Because as as it occurred in this case, these charges were no priced.

02:07 - 36.615 Does that extinguish the criminal case?

02:07 - 37.783 It wanted to does.

02:07 - 42.655 But the problem is where you have a defendant who is going to ask

02:07 - 46.692 for property back in the form of a petition for return of property

02:07 - 48.927 and you have no price charges.

02:07 - 52.097 There is nothing to say that the Commonwealth can say,

02:07 - 53.799 thank you for your petition.

02:07 - 57.603 I see you acknowledged your right to the property, we're going to refile

02:07 - 01.006 and until the statutory,

02:08 - 03.442 the limitation period extinguishes with the underlying

02:08 - 07.046 criminal charges that continues.

02:08 - 11.717 So just by the fact that the criminal case was no process

02:08 - 14.820 still implicated, you were right against self-incrimination.

02:08 - 18.357 So essentially you're foreclosed from ever trying to seek your property.

02:08 - 20.559 So is that the distinguishing factor?

02:08 - 22.494 That is another distinguishing factor.

02:08 - 23.362 I think there are many

02:08 - 27.132 distinguishing factors now, Alan, and I think Justice Todd had it correct.

02:08 - 28.901 This is a property issue.

02:08 - 32.471 This is not a waiver issue just for the mere fact

02:08 - 35.441 that and I would also add rule five eight,

02:08 - 39.945 as every court has indicated, does not include a time frame.

02:08 - 41.013 There's nothing in there

02:08 - 45.818 to suggest that this should be 30 days or at the closure of a criminal case.

02:08 - 51.256 And that was correctly identified where you have situations

02:08 - 51.824 where you have a

02:08 - 54.927 third party who's not party to the criminal case

02:08 - 59.231 that has property taken or seized by the government.

02:08 - 02.935 They're not a party to add to what applicable time period applies there.

02:09 - 05.637 And if I recall correctly, our courts have determined

02:09 - 10.042 that the catch or six year provision, statute limitation provision applies.

02:09 - 14.046 And I don't understand why that wouldn't apply to any person trying to recover

02:09 - 18.817 property that was improperly and illegally taken by the Commonwealth.

02:09 - 22.654 So in that sense, Your Honor, I think

02:09 - 25.090 in as it applies to this particular case.

02:09 - 29.595 Now, I would also be remiss if I wouldn't have indicated that Alan,

02:09 - 33.298 by its own text indicates it is very fact.

02:09 - 36.135 Specific is confined to the facts of the case.

02:09 - 38.771 And here we are arguing this on a case by case basis

02:09 - 44.143 with another case where we have a a no price and

02:09 - 45.210 a request

02:09 - 50.649 mere eight days later, after the 30 days expired for the return of these items,

02:09 - 54.019 the Commonwealth has indicated, well, we can't do it

02:09 - 57.022 anything because we don't have them, which is also alarming.

02:09 - 01.426 But we haven't had a chance to address that because we haven't got the to

02:10 - 02.561 the petition.

02:10 - 03.595 Has the judge determined

02:10 - 07.099 that there was no jurisdiction, which I would ask this honorable court

02:10 - 11.069 remand the matter back for a hearing on that determination.

02:10 - 14.573 And so I can, I guess, locate

02:10 - 19.578 these two animals in return and do ask for where they are.

02:10 - 21.213 The Commonwealth has indicated

02:10 - 25.517 the they don't know where the animals are

02:10 - 28.620 being that they presumably were evidence.

02:10 - 32.691 And the underlying case is problematic and

02:10 - 34.860 being that there are it's property

02:10 - 39.331 that has been determined to be illegally seized, my client,

02:10 - 40.232 the fact that they don't

02:10 - 44.036 know where they are is also alarming.

02:10 - 46.371 While I understand that these are animals

02:10 - 50.275 that need to be fed and taken care of,

02:10 - 52.644 I in my opinion,

02:10 - 55.781 and I think rightfully so, these animals have no different

02:10 - 00.252 characteristic in any other thing seized by the Commonwealth money cars

02:11 - 04.022 as one of the first things we learn in law school.

02:11 - 06.158 Even though you may love care for their pet

02:11 - 09.361 and they may be the most valuable thing in the world to you

02:11 - 13.966 as you learn and taught, it's worth exactly what it costs to the purchase.

02:11 - 20.005 You don't rehome a stolen car if you rehome a dog right?

02:11 - 22.341 You could store a car, right?

02:11 - 25.510 But the dogs require,

02:11 - 27.946 you know, care, nurture and that kind of thing.

02:11 - 29.581 And my argument would be

02:11 - 33.552 if the Commonwealth will take it upon itself to seize a item,

02:11 - 40.993 it is also incumbent upon them to preserve the item was nunc pro tunc relief. So

02:11 - 42.861 not particularly if it was not sought.

02:11 - 47.032 This was just a petition filed the miscellaneous docket

02:11 - 52.271 and then deny it for lack of jurisdiction and via this appeal followed

02:11 - 56.341 and has a separate civil action been brought to recover the property.

02:11 - 59.378 A separate civil action has not been filed to cover the property

02:11 - 04.182 because was the mechanism that was utilized. And.

02:12 - 07.653 But isn't aren't you saying that in fact this is really just about

02:12 - 10.255 returning the property and it shouldn't be associated

02:12 - 13.191 with the jurisdiction of the criminal court?

02:12 - 13.392 Well,

02:12 - 16.361 I'm saying they should not be associated with the jurisdiction of criminal court,

02:12 - 20.999 and that's what I was intending to do to actually recover the property.

02:12 - 24.569 If I were to pursue another remedy, it would be essentially

02:12 - 27.839 the cost of the property, which that's not what my client wants.

02:12 - 30.842 My client wants the physical return of these two animals.

02:12 - 35.881 And I have to proceed the way that the Supreme Court has determined,

02:12 - 40.585 the way you proceed, which is the rules that were promulgated under 588.

02:12 - 42.654 The problem I

02:12 - 45.824 have is that I don't know where they are

02:12 - 49.294 Commonwealth's indicated, they don't know where are.

02:12 - 52.030 But the only people I can seek

02:12 - 55.033 redress from are the people who took the animals.

02:12 - 58.570 So this petition was filed.

02:12 - 00.939 So and I would also include,

02:13 - 04.609 Your Honor, as if the Court were

02:13 - 06.411 as it relates to my final argument,

02:13 - 08.580 if the Court were to determine that this was based

02:13 - 12.617 primarily on the jurisdictional issues set forth by the underlying court,

02:13 - 15.520 the delay was eight days, it was de minimis.

02:13 - 18.056 And the other issue was

02:13 - 21.193 you are the original counsel for this.

02:13 - 25.364 Petitioner was counsel in the criminal case.

02:13 - 27.399 He became ill.

02:13 - 29.701 I took over at that time

02:13 - 32.938 and was out of time to file this.

02:13 - 35.474 I promptly thought it as soon as I was asked.

02:13 - 38.677 So I basically took two roles, whereas my role in the underlying

02:13 - 41.680 criminal case was with another codefendant,

02:13 - 46.151 but that the code, the counsel of criminal counsel for

02:13 - 49.321 Lucy Bennett Kosky, who is the petitioner, became ill.

02:13 - 51.256 So I assisted him in that proceeding.

02:13 - 53.091 That's why my name is on that.

02:13 - 56.561 And is that another basis for your request?

02:13 - 57.229 Yes, John.

02:13 - 59.231 And that would be my third argument, my brief.

02:13 - 03.535 So you are making a request for non negligent circumstance.

02:14 - 06.972 That's why I did that with the trial court and that was denied.

02:14 - 07.806 Okay.

02:14 - 09.741 It wasn't a formal non-product petition.

02:14 - 14.179 I brought it in, indicated that I think DeLay should be excused for that reason.

02:14 - 15.380 The trial court should consider.

02:14 - 18.383 So I guess I'm just to put another way.

02:14 - 20.285 You were asking for that type of relief.

02:14 - 22.754 You just didn't use the Latin phrase, correct.

02:14 - 24.256 Okay.

02:14 - 24.656 Thank you.

02:14 - 31.530 Thank you, Arch.

02:14 - 33.465 Good morning.

02:14 - 35.801 Good morning. It's good morning, sir.

02:14 - 37.536 Waiting for my clock to run.

02:14 - 39.171 May, please the court.

02:14 - 43.308 I'm John Paul Lewis from the District Attorney's office, the appellee.

02:14 - 47.746 I am asking that this court affirm trial court.

02:14 - 51.516 I believe, as my colleague said

02:14 - 55.887 when he filed this motion, as he put it, he was out of time.

02:14 - 57.489 Where the dogs.

02:14 - 59.458 Where are the dogs?

02:14 - 02.327 Where are the dogs? I do not know.

02:15 - 03.595 How is that possible?

02:15 - 05.630 Well, I was not trial counsel. I was not.

02:15 - 08.166 No, I don't mean you personally. I mean, how could they not know?

02:15 - 11.870 They're the entity that sees that force that seized the property?

02:15 - 15.941 I understand they're safe keepers of the property.

02:15 - 19.411 Yes. My understanding is that in connection

02:15 - 25.283 with these animal cases, they are rehoused while the case is pending.

02:15 - 29.187 This is not, as the court pointed out, a case of a gun or car

02:15 - 30.655 that just put in storage.

02:15 - 31.022 Okay.

02:15 - 35.093 This was an allegation that it was that take me through the normal.

02:15 - 38.196 The Commonwealth follows when it is duty

02:15 - 42.467 bound to keep property, but doesn't think it should be returned to the owners.

02:15 - 47.706 What does the Commonwealth do in the case of those firearms?

02:15 - 48.907 That's fine.

02:15 - 49.541 That's fine.

02:15 - 50.742 The firearm is fine.

02:15 - 54.813 Well, I believe it's kept in evidence at the police station, Your Honor.

02:15 - 57.382 It's brought to court in the event of a hearing.

02:15 - 00.819 No, I mean, when it gets to the point that the Commonwealth doesn't

02:16 - 06.558 want to return the property to an owner, how does it go about

02:16 - 07.292 forfeiting?

02:16 - 10.228 Like asking, saying they don't get this property back?

02:16 - 12.631 Take me through that process.

02:16 - 17.335 There could be a fourth forfeiture petition.

02:16 - 21.873 The items could be forfeited by agreement.

02:16 - 24.676 You know, it will turn on a contraband analysis.

02:16 - 24.976 Right.

02:16 - 29.981 So normally the commonwealth state keeps property and either

02:16 - 33.718 returns it to the property owner or goes through a process

02:16 - 35.820 of asking the court, I don't want a return.

02:16 - 40.492 I, the Commonwealth don't want to return this to the property owner, right? Yes.

02:16 - 45.096 They don't just give the property. No.

02:16 - 50.602 But in the event that would be the case, here was an allegation of a puppy mill.

02:16 - 53.672 So this is not a property case.

02:16 - 56.675 This was the case with many, many animals.

02:16 - 00.478 So I don't know the specifics of what occurred here.

02:17 - 05.383 But as was pointed, you cannot just store living animal.

02:17 - 07.953 And that's beside the point.

02:17 - 10.789 The point is the title didn't pass.

02:17 - 14.059 If we just even talk about the sense just in that you're

02:17 - 17.963 still the custodian of the property, no title passed.

02:17 - 20.198 So where is the property?

02:17 - 25.170 Because at any point in time court could have ordered that it be returned.

02:17 - 25.904 I believe it.

02:17 - 26.605 Sorry, Judge.

02:17 - 28.907 And you're still only the custodian.

02:17 - 30.542 No title has transferred here.

02:17 - 35.180 So where is the property that might be ordered to be returned?

02:17 - 40.085 It has to be somewhere where the entity that forfeited

02:17 - 44.889 the property seized can return it to its rightful title owner.

02:17 - 46.524 If a court so decides.

02:17 - 50.095 And I believe it is, Your Honor, I just can't get the court in an address.

02:17 - 52.197 There's no allegation this case.

02:17 - 55.600 Are you saying then your office knows where they are?

02:17 - 56.268 No, I'm not.

02:17 - 58.236 And in fact, I'm saying that I don't know.

02:17 - 59.571 I specifically don't know.

02:17 - 01.906 Perhaps somebody my office does.

02:18 - 04.442 And how could you comply with a court order

02:18 - 07.946 to return the property if that if that were the case,

02:18 - 11.349 if in the event that this court orders the return of property,

02:18 - 15.487 we would have to make inquiries and have the property returned.

02:18 - 20.025 It's often the case that the district attorney's office itself does not

02:18 - 22.427 maintain property, for example,

02:18 - 26.197 in a drug case that the drugs are often kept

02:18 - 30.402 in the evidence locker of whatever police department has the drugs.

02:18 - 33.071 And this is the same fashion.

02:18 - 36.241 We do not have a kennel at the district attorney's office.

02:18 - 39.477 The property is not kept at the district attorney's office.

02:18 - 43.248 It's sort of a collaboration where the properties kept off site.

02:18 - 45.750 But respectfully, I think we're getting a little off track.

02:18 - 48.720 I don't think this is a case where there's an allegation

02:18 - 53.091 that the property or these animals mishandled by the commonwealth.

02:18 - 56.995 Can you can you address in response to counsel's

02:18 - 00.532 argument that Allen is distinguishable? Yes.

02:19 - 01.266 Your Honor.

02:19 - 03.601 I don't believe Allen is distinguishable.

02:19 - 10.575 I believe, as the trial court found, that Allen is controlling,

02:19 - 13.178 as counsel said, he was out of time

02:19 - 18.116 when he filed his petition for the return of property.

02:19 - 21.753 So even if we accept that to be true, the trial abused its discretion

02:19 - 24.656 and not having taken into consideration

02:19 - 28.393 the circumstances for why it was 88 days late.

02:19 - 33.398 No, Your Honor, I don't believe that the trial court did abuse its discretion.

02:19 - 37.802 I think that the 30 day limit is jurisdictional.

02:19 - 42.774 I think she was honoring the state Supreme Court's decision.

02:19 - 48.012 And the mean time was excusable

02:19 - 54.018 if right if the became ill and another attorney had to step in

02:19 - 57.122 in order to be able to file it, why wouldn't

02:19 - 00.358 that be very similar to,

02:20 - 05.063 you know, the cases that the Supreme Court and our court is held

02:20 - 09.267 just to by non negligent circumstances?

02:20 - 13.605 I think maybe in this case it will come down to a review of the record.

02:20 - 16.708 I think that if the court looks at the record,

02:20 - 21.012 you will see that my colleague actually entered the case

02:20 - 25.517 a long time ago, as early as January of 2022.

02:20 - 27.819 There's a continuance which is in the docket.

02:20 - 31.856 It's in the record for for who's client,

02:20 - 34.893 because I think he indicated he represented a different party.

02:20 - 37.395 He he was at this dock at Your Honor.

02:20 - 40.331 Did he represent the petitioner

02:20 - 44.602 in this matter before the time ran out? Yes.

02:20 - 49.974 So in January of 2022, my colleague continued the case

02:20 - 53.044 and indicated that he was taking over the case.

02:20 - 58.616 If you look at all subsequent orders, you will find his name on those representing.

02:20 - 00.118 The petitioner in this matter

02:21 - 06.057 before the 30 day deadline ran out in this docket. Yes,

02:21 - 06.691 I know that he

02:21 - 10.428 did make the request and using the magic words of nunc pro tongue.

02:21 - 13.531 And it doesn't appear that there there's any verbiage

02:21 - 16.234 for the basis of a pro tunc relief.

02:21 - 19.871 There's that undermined his argument.

02:21 - 21.906 Yes. Uphold the trial court.

02:21 - 24.375 The trial court did not. Abuse of discretion.

02:21 - 24.976 Yes, Your Honor.

02:21 - 29.481 I think he would have to make those investments to satisfy

02:21 - 31.483 some sort of relief from this court.

02:21 - 36.588 And that much has to be placed in there for the trial court to be placed on notice

02:21 - 39.557 that not spoke Tunc relief was requested.

02:21 - 45.196 I think it would have to satisfy the trial court that there is an excusable

02:21 - 47.599 missing of the time limit in this case.

02:21 - 50.001 I don't think that that can be satisfied.

02:21 - 55.206 As I said, counsel was active in the case going back to January of 2022,

02:21 - 59.511 which was well before, matters were resolved.

02:21 - 04.215 It was months and months before the case was done.

02:22 - 07.986 I also believe that on the merits,

02:22 - 12.223 the defendant is not entitled to release the appellant here.

02:22 - 15.727 There is an allegation that Allen violates the appellant's

02:22 - 20.331 due process under various provisions of the Constitution.

02:22 - 23.801 Well, is that

02:22 - 26.070 sort of part of

02:22 - 28.740 the point that and I think

02:22 - 31.910 appellant has raised the question about,

02:22 - 36.814 although under rule 588 petitions for return of property

02:22 - 40.952 can be brought along with motions to suppress.

02:22 - 43.922 There may be Fifth Amendment self increment

02:22 - 47.125 barriers to doing so. Yes.

02:22 - 49.060 Yes. What is your response to that?

02:22 - 53.431 In this case, Your Honor, the rule applies nonetheless.

02:22 - 55.033 Cannot ignore Allen.

02:22 - 56.467 There's still a requirement

02:22 - 00.338 that it be filed in a timely fashion that requests for a return of property.

02:23 - 03.374 Also in this case, in Commonwealth.

02:23 - 07.211 No. Prior to the charges, the evidence was suppressed.

02:23 - 08.880 The evidence was suppressed.

02:23 - 12.083 And despite

02:23 - 13.685 the appellant's concerns

02:23 - 17.455 about self-incrimination, you will see that she did in fact

02:23 - 22.193 make some form of allegation about possession of the property.

02:23 - 24.262 It's just that it was late.

02:23 - 27.198 So that's why we're hearing now that, you know,

02:23 - 30.201 she can't allege ownership of the property.

02:23 - 35.807 What I'm struggling with is so I understand Allen and I

02:23 - 37.442 you heard me mentioned earlier

02:23 - 39.978 that was a motion filed with the criminal docket

02:23 - 42.580 that would have triggered the 30 days that the trial,

02:23 - 46.150 the criminal trial court lost jurisdiction.

02:23 - 48.753 But what I'm struggling with is

02:23 - 52.056 until the commonwealth and so maybe I don't know

02:23 - 55.560 if that that we were off track what who that was directed to.

02:23 - 59.631 It was both Judge Bukola and I what we were getting at is

02:23 - 04.802 there is a statute that specifically a mechanism and a timeline

02:24 - 11.843 for a Commonwealth to file a forfeiture act to file for forfeiture. So

02:24 - 14.345 the property owner continues

02:24 - 18.850 to own the property and the Commonwealth is a mere safe keeper.

02:24 - 22.920 So until the time that the title,

02:24 - 26.958 it's still is the owner of the couch of the couches,

02:24 - 31.929 what will say the couch, the sofa instead of dogs or gun or drugs,

02:24 - 34.899 it still belongs to that person until the Commonwealth

02:24 - 38.169 gets permission to own the title.

02:24 - 42.774 So a couch owner would think the Commonwealth keeping that couch

02:24 - 46.377 and the statute provides that the Commonwealth has,

02:24 - 50.248 what is it, six years to file a forfeiture petition?

02:24 - 53.284 If that doesn't happen, it's presumed the property is going to go

02:24 - 56.521 back at the Commonwealth, doesn't give the property back.

02:24 - 00.258 Somebody might file at a miscellaneous docket,

02:25 - 03.661 give me my couch back.

02:25 - 05.563 Yes, that's a possibility, Your Honor.

02:25 - 07.932 But there are time limits to those filings.

02:25 - 10.735 In this case, the time limit was not met.

02:25 - 13.871 Well, how do you reconcile 30 days and Allen

02:25 - 17.775 to six years for the Commonwealth who owns the property in that gap

02:25 - 22.313 between 30 days post a criminal that a determination?

02:25 - 23.047 Sorry, Your Honor.

02:25 - 24.048 No, no, go ahead.

02:25 - 27.051 That's a determination made by the Supreme Court.

02:25 - 30.455 We have to follow the precedent of Allen.

02:25 - 33.291 The court looked very thoroughly,

02:25 - 36.894 and I'm sure the courts read Allen or will read Allen.

02:25 - 40.198 The Supreme Court evaluated this issue very thoroughly

02:25 - 43.835 and has made that determination in this case.

02:25 - 46.838 Is there one dismissed?

02:25 - 47.338 Sorry.

02:25 - 49.440 Go ahead.

02:25 - 50.608 thank you.

02:25 - 53.945 Does it matter that it was filed at a miscellaneous docket number?

02:25 - 57.482 In other words, 588 applies with the criminal prosecution here.

02:25 - 59.550 Miscellaneous docket.

02:25 - 00.752 Yes, Your Honor.

02:26 - 06.390 This is the arguments raised by that before the trial court

02:26 - 12.029 and before this court are under the rules of criminal procedure.

02:26 - 13.998 The only difference would be that

02:26 - 17.502 it was filed out of miscellaneous stock docket.

02:26 - 18.669 Excuse me.

02:26 - 21.672 I don't that that was

02:26 - 26.277 some sort of distinction that matters.

02:26 - 29.747 Every argument made by

02:26 - 35.052 the appellant has been under the rules of criminal procedure.

02:26 - 36.921 There is a

02:26 - 41.192 way that somebody can make a request for return of property.

02:26 - 48.032 There is a statute as well, but that was not invoked here. The

02:26 - 52.103 so there's been no raising that issue with the trial court.

02:26 - 52.503 And they're not

02:26 - 57.441 there's been no briefing of the issue and they're not precluded from doing that.

02:26 - 58.109 There's that.

02:26 - 59.076 I think that might have been

02:26 - 03.281 what the court was bringing up before, But that's not the case before the court.

02:27 - 05.082 That's not the case before the court.

02:27 - 08.553 And it was never raised to my other questions

02:27 - 12.990 before about where the dogs didn't go to whether you were mishandling them.

02:27 - 16.561 But in the event that there is an order

02:27 - 21.465 to return the property at some point down the line,

02:27 - 22.733 would you just have to be sure?

02:27 - 26.370 I think what you told me was that you know, the chain of custody,

02:27 - 29.941 that your office would be able to track it and find them.

02:27 - 32.677 It's not like they're lost, is it not?

02:27 - 36.781 I lost somewhere to everyone.

02:27 - 38.115 That's a fact here.

02:27 - 41.018 My short answer probably would be, Judge, I do not know the answer

02:27 - 44.655 to that question, but I know there are methods and procedures

02:27 - 48.192 by which, in the case of animals are kept safe.

02:27 - 52.363 They're fed, they're housed, if

02:27 - 52.797 present.

02:27 - 58.803 Counsel for petitioner was not on notice of the process, and the attorney

02:27 - 02.673 who was of record received the electronic notice

02:28 - 05.376 and the client not.

02:28 - 08.145 But the attorney was ill.

02:28 - 13.384 Don't you think they have a colorable claim to excuse the eight day

02:28 - 14.518 delay?

02:28 - 17.922 Perhaps, Your Honor, but I think that's not the case here today.

02:28 - 21.826 I think that in this case, as I said, if you look at the docket,

02:28 - 25.463 you will see that my colleague was, the active candidate of record

02:28 - 27.865 on the docket of the criminal case of record,

02:28 - 31.636 because I looked at the docket and I didn't see the criminal case docket

02:28 - 35.940 in our docket, I do have the actual record with me,

02:28 - 37.642 I would assume would be made part of the record.

02:28 - 39.510 I'll rely on my co-counsel for that.

02:28 - 43.581 But I can tell the court and as an officer of the court,

02:28 - 50.087 going back to January 6th of 2020 to my colleague here today, continued

02:28 - 53.357 the case, indicated that he was going to

02:28 - 56.594 be taking it over for he'd he'd Gonski.

02:28 - 58.963 I don't know if it said that name specifically

02:28 - 01.432 that was but that's who we're here for. Yes.

02:29 - 04.101 It was under that docket. It was under the docket of this case.

02:29 - 07.738 There is are more than one defendant under that docket.

02:29 - 11.842 Each defendant would have a separate docket I what I'm saying is

02:29 - 17.381 that he didn't represent Lucy Bennett count Gonski at the 30 day deadline.

02:29 - 18.683 I think he was, Your Honor.

02:29 - 24.188 We'll ask him when he comes back in in all manners entering appearance.

02:29 - 27.425 He my understanding was I believe he

02:29 - 30.728 in fact, represented all manners except entering in appearance.

02:29 - 31.629 Right.

02:29 - 35.733 And I believe he's sorry to interrupt you, but entering an appearance means

02:29 - 41.105 that you get electronic notice of filing, such as a no process.

02:29 - 45.042 Whereas if you're not and you haven't entered your appearance.

02:29 - 48.145 You're helping a sick colleague.

02:29 - 50.147 You may not get noticed.

02:29 - 53.784 I don't know. It sounds plausible. All

02:29 - 54.885 respect for Your Honor.

02:29 - 56.320 I think there is more than that.

02:29 - 59.690 I think he was acting as attorney,

02:29 - 02.193 going back to that date that I mentioned before.

02:30 - 06.630 And I don't think if I fail to enter and appear at my appearance,

02:30 - 10.801 that's I think on me, it's not the fault of the court

02:30 - 14.405 based it on the client, is it on the client?

02:30 - 16.841 Can can the client be excused?

02:30 - 19.543 Let's say he was neglectful for not entering his appearance.

02:30 - 22.246 For weeks he'd been in currency.

02:30 - 24.048 Can we excuse that?

02:30 - 27.151 As against the party, we are often

02:30 - 30.354 bound by the decisions of our counsel.

02:30 - 33.290 Your Honor, for better or for worse.

02:30 - 35.159 And in this case,

02:30 - 38.496 as I said, I don't think that this

02:30 - 42.767 the taking of the dogs was not some sort of revelation out of the blue.

02:30 - 44.135 This was something that happened.

02:30 - 46.804 In fact, years prior.

02:30 - 51.542 The case was moving along to no process was kind of out of the blue, wasn't it?

02:30 - 54.311 No, Your Honor, I don't think so.

02:30 - 56.781 The normal process was entered

02:30 - 01.752 September 13th of 2022, if my notes are correct.

02:31 - 04.188 The case was filed back

02:31 - 07.191 in October of 2019, a criminal complaint.

02:31 - 11.162 So these dogs were at issue and subject

02:31 - 15.666 to requests by their own adverse interest.

02:31 - 18.335 Yeah, there was a successful suppression

02:31 - 21.038 of residence, which is why the charges were not passed.

02:31 - 24.041 Yes. So it was litigated very thoroughly.

02:31 - 27.044 That's another thing I was going to raise with respect to due process.

02:31 - 29.380 This case had plenty of due process.

02:31 - 30.981 There was a criminal complaint.

02:31 - 34.885 There was pretrial hearings, there was suppressions.

02:31 - 37.321 I mean, there was counsel throughout all stages.

02:31 - 39.690 A preliminary hearing was waived.

02:31 - 40.024 Thanks.

02:31 - 42.827 Thank you to the court for its time.

02:31 - 46.630 Thank you very, very much.

02:31 - 48.032 Okay.

02:31 - 52.803 It's Your Honor, to answer your question to begin.

02:31 - 54.472 So during the

02:31 - 59.243 I got involved this the underlying criminal case at a later stage,

02:31 - 01.812 I was hired specifically by Emily Bean.

02:32 - 06.884 Accosted is the sister of the petitioner to file the suppression.

02:32 - 09.120 Now, there were three counsel involved at that time.

02:32 - 11.255 There were three co-defendants.

02:32 - 13.724 There was a third codefendant, which was the mother

02:32 - 17.461 of the two Bennett Caskey sisters, which was Emily and Lucy.

02:32 - 19.230 I represent Emily.

02:32 - 22.433 Mr. Keaton represented the petitioner here.

02:32 - 23.467 In fact, Mr.

02:32 - 27.771 Keaton showed up to the suppression hearing we had and participated in it.

02:32 - 29.607 It was after that that Mr.

02:32 - 31.142 Keaton became ill.

02:32 - 33.043 He was hard to reach, he was hard to contact.

02:32 - 36.046 So every now and then, if something would happen

02:32 - 40.017 that needed to be done on the case, I would submit, for example,

02:32 - 43.420 the judge, the trial judge wanted a brief on the matter.

02:32 - 46.891 And if I recall correctly, I may have assisted him in filing the brief

02:32 - 50.761 and he basically adopted my position, which ultimately proved to be correct

02:32 - 55.166 because Commonwealth had the evidence suppressed

02:32 - 58.636 at I think the at the end of the case,

02:32 - 01.639 there was an issue about trying to facilitate

02:33 - 06.210 getting the no price to the Commonwealth and signing off on it.

02:33 - 11.749 I think I assisted him in that as well and in my view

02:33 - 13.784 after that no process was entered.

02:33 - 16.220 My participation in the case was over.

02:33 - 19.757 But then I got contacted by Lucy Bean, excuse the petitioner here

02:33 - 22.793 in indicating that she in fact wanted her daughter back.

02:33 - 24.762 And I said, I'll see what I can.

02:33 - 27.965 That's why I answered this petition here.

02:33 - 32.169 Now, I will also remind the court, if you look back at the record,

02:33 - 36.273 when the petition was filed for the return of the property,

02:33 - 39.476 the Commonwealth said we're no longer a party.

02:33 - 42.012 Even at the miscellaneous docket. They said we're not a party.

02:33 - 45.749 And by the way, the reason we're not a party is we don't even have the animals.

02:33 - 47.351 You got the wrong guy.

02:33 - 50.354 That was their response at the time, not that you were late.

02:33 - 54.391 We don't have these dogs and we talk about

02:33 - 57.795 neglectful behavior in the hierarchy of neglect behavior.

02:33 - 02.766 This entire case, I would argue that the lost of not

02:34 - 05.769 only of my client's property,

02:34 - 08.806 but evidence in an underlying criminal case.

02:34 - 13.877 Don't forget, this was a case about the alleged puppy mill.

02:34 - 15.079 These dogs are evidence.

02:34 - 16.380 I would have had the opportunity

02:34 - 20.251 to have those dogs examined to see if they were healthy, maintained.

02:34 - 23.320 I wouldn't have had access to it because the Commonwealth said, you know what?

02:34 - 24.722 We're going to take these animals

02:34 - 28.892 and give them to whoever, which we don't know because there's no answer.

02:34 - 29.994 Who knows where they are?

02:34 - 31.562 I don't and I can't get an answer

02:34 - 33.797 out of the Commonwealth because they obviously don't.

02:34 - 36.934 Is this the appropriate means to take care of evidence in this Commonwealth?

02:34 - 38.602 I don't think so.

02:34 - 44.008 It's not only that this is my client's property, that's why we're here.

02:34 - 49.179 The V is I indicated in the court's analysis and Alan

02:34 - 53.651 Allen looked at it through the lens of criminal prosecution,

02:34 - 57.554 but ignore the essential features of a criminal prosecution, specifically,

02:34 - 02.293 as we addressed before, with the potential for self.

02:35 - 07.631 When you have these return of property issues, as counsel indicated,

02:35 - 10.734 did I have the opportunity to do this prior to or did Mr.

02:35 - 14.371 Keating have the opportunity this prior to when the pending criminal case existed?

02:35 - 16.540 Yes. Would he have done that

02:35 - 19.943 as a competent counsel who wanted to maintain their licenses? No.

02:35 - 23.314 You can't put a petition indicating that that's your property,

02:35 - 25.482 even if you don't think you're going to incriminate.

02:35 - 27.484 But the possibility could exist.

02:35 - 29.586 You can't proceed that way.

02:35 - 31.588 Do you have to wait until the end the case?

02:35 - 34.591 But the problem also here is we have a no priors.

02:35 - 38.295 We're still bound by the applicable statute limitations on the criminal case.

02:35 - 43.167 So, yes, it's essentially over, but it's really not over.

02:35 - 43.967 And you really

02:35 - 46.970 still can't incriminate yourself if you file these type of petitions.

02:35 - 53.410 Would you agree with me that the sole basis for denying the return by the

02:35 - 57.981 the judge below was the timing issue.

02:35 - 01.318 It was the late, according to her.

02:36 - 04.488 It looks like that was the sole basis for.

02:36 - 08.325 Was there a substantive ruling that was on the merits?

02:36 - 12.129 I would agree that the court indicated the time frame.

02:36 - 15.132 They did not have the jurisdiction and it followed it.

02:36 - 20.738 So would you be satisfied if we ruled that it should be remanded for a hearing?

02:36 - 22.272 The merits?

02:36 - 25.275 I would be satisfied, Your Honor.

02:36 - 28.712 I also am cognizant of the state of the law

02:36 - 30.914 and of forfeiture in this Commonwealth.

02:36 - 32.583 Think that,

02:36 - 34.651 if I recall, it might have been just as tied

02:36 - 39.957 to the state of the forfeiture law as somewhat,

02:36 - 43.026 if I recall her exact phrase,

02:36 - 47.364 which was very appropriate

02:36 - 50.267 to the trial court, unique and marked with conflict,

02:36 - 56.173 the trial court entertained an unfortunate petition. No,

02:36 - 58.509 there was an incompetent petition filed.

02:36 - 01.912 There was this petition filed, but timeliness wasn't raised at that time.

02:37 - 03.647 The trial court raised that issue.

02:37 - 05.282 You raised it in your brief.

02:37 - 08.018 You that Mr. Keaton was it Mr.

02:37 - 09.052 Keaton was the counsel.

02:37 - 12.256 You raised the issue that he was ill and you asked

02:37 - 16.627 to have the eight days excused in your brief? Yes.

02:37 - 17.094 Maybe.

02:37 - 21.031 The other piece of that puzzle I didn't mention was I had also filed a motion

02:37 - 25.102 for reconsideration and included request of that relief.

02:37 - 25.803 That petition

02:37 - 28.906 may have been in the reconsideration that gave the trial court an opportunity

02:37 - 33.410 to address that specific issue, which is why you see it in their opinion.

02:37 - 35.379 So I did cover base,

02:37 - 38.582 if you will, with no formal motion for relief.

02:37 - 40.083 None was filed.

02:37 - 43.487 You didn't use the magic words, but you asked for that relief, in essence.

02:37 - 47.357 No. And I from a position is I don't believe it's out of time.

02:37 - 50.494 I believe this should be governed by the six year statute limitations.

02:37 - 53.063 We had another forfeiture act

02:37 - 53.697 that you didn't

02:37 - 59.002 file in the civil context you filed it for.

02:37 - 59.837 That's the issue.

02:37 - 02.139 Then it's under another docket.

02:38 - 05.676 That's the way Washington County handles a return of the miscellaneous

02:38 - 08.278 out of miscellaneous docket. I would argue that I did.

02:38 - 11.281 I would argue that I did, in fact, comply with that rule

02:38 - 14.418 because the authorities office essentially wouldn't accept it

02:38 - 17.888 because they would file forfeiture action against you, your client.

02:38 - 20.924 There is no forfeiture petition filed,

02:38 - 23.460 which probably would have been the appropriate thing for the Commonwealth

02:38 - 27.798 to do if it intended to dispose of the animals, but it did not.

02:38 - 30.234 Thank you. Thank you.

02:38 - 31.935 Thank you very, very much.

02:38 - 36.073 Another very, very interesting well-briefed and well-argued case.

02:38 - 39.476 One of the roles of the State Civil Service Commission in Pennsylvania

02:38 - 42.713 is to serve as a neutral adjudicatory type of tribunal

02:38 - 45.782 hearing and resolving employment appeals.

02:38 - 48.652 In our next case, the Commission's decision relates

02:38 - 54.491 to a 2021 employment dispute between Asia Al Wilkerson and Allegheny County.

02:38 - 57.027 The employment dispute arose from the requirements

02:38 - 01.698 enacted by Allegheny County to address the COVID 19 pandemic.

02:39 - 04.268 These requirements included weekly

02:39 - 08.472 as well as a mandate that all Allegheny County Executive branch employees

02:39 - 12.943 be fully vaccinated against COVID 19 by December 1st.

02:39 - 16.547 The testing came first and was communicated to employees

02:39 - 21.285 and an August 30th email sent by the county's human resources manager,

02:39 - 24.688 Miss Wilkerson responded to that email, stating that due

02:39 - 28.725 to her spiritual beliefs, she was declining the vaccine and testing.

02:39 - 33.063 The human resources manager responded, explaining that he did not believe

02:39 - 36.867 that a medical or religious exemption applied to testing.

02:39 - 39.870 Ms.. Wilkerson participated in two separate interviews

02:39 - 43.240 related to her religious exemption request,

02:39 - 46.510 first with an employee relations coordinator on September

02:39 - 51.248 9th and later with the Human Resources Generalist on October 13th.

02:39 - 54.785 Ultimately, this Wilkerson request was denied.

02:39 - 59.489 In the interim, on September 29th, Allegheny County announced its December

02:39 - 03.794 1st vaccine mandate, touting it as the way to slow the spread

02:40 - 08.365 of COVID 19 and protect against infection by the Delta variant.

02:40 - 11.168 Despite the denial of her request for exemption, Ms..

02:40 - 16.006 Wilkerson failed to comply with either the testing or vaccine requirements

02:40 - 17.407 on November 23rd.

02:40 - 22.579 Allegheny County In-Service Wilkerson of an investigatory hearing to be on

02:40 - 27.551 November 29th, related to her failure to provide proof of vaccination,

02:40 - 30.420 the notice stated that she had an opportunity to submit

02:40 - 34.791 a written response that could include a request for accommodation.

02:40 - 36.526 On November 27th, Ms..

02:40 - 41.131 Wilkerson submitted a written response to the notice, which, among other things,

02:40 - 44.901 included a were less a request for a religious exemption.

02:40 - 48.238 She also intended the event attended the investigatory

02:40 - 52.209 hearing after which Allegheny County terminated her employment failure

02:40 - 57.180 to show proof of vaccination status or a valid religious exemption.

02:40 - 59.850 On appeal, the commission found in favor of Ms..

02:40 - 02.919 Wilkerson and ordered County to erase

02:41 - 05.989 the termination from their records and reinstate Ms..

02:41 - 08.959 Wilkerson with back pay and benefits.

02:41 - 11.795 The Commission based its decision on a finding that Allegheny

02:41 - 15.132 County failed to show they had just cause to terminate Ms..

02:41 - 17.334 Wilkerson's employment.

02:41 - 18.935 The Commission further found that Ms..

02:41 - 22.773 Wilkerson had established a prima fascia of discrimination

02:41 - 25.842 and that Allegheny County failed to make a good faith effort

02:41 - 29.079 to reasonably accommodate her spiritual beliefs.

02:41 - 33.583 The court is now tasked determining whether the commission got it right.

02:41 - 37.220 Let's hear what the parties have to say and

02:41 - 38.088 may please the court.

02:41 - 42.025 Jake Lifson for the Allegheny County Department of Health Centers.

02:41 - 47.064 This case centers around Allegheny County's COVID 19 vaccination requirement,

02:41 - 52.669 which was announced to all Allegheny County employees in September of 2021

02:41 - 56.940 and made effective December 1st of that same year.

02:41 - 58.542 I'm sorry, did you went.

02:41 - 59.509 yes, I forgot.

02:41 - 05.482 I forgot to mention if I could observe 3 minutes for rebuttal if I got it in time

02:42 - 09.786 at this time in the fall of 2021, Allegheny County, as a region, saw

02:42 - 13.690 a 300% increase in COVID related

02:42 - 16.993 cases, hospitalizations and deaths

02:42 - 20.564 and at that time, the CDC and all public health agencies were sounding

02:42 - 25.469 the alarm bells for employers to implement vaccine incentives where possible.

02:42 - 27.270 And vaccine mandates.

02:42 - 31.007 And that's exactly what the county did here.

02:42 - 34.010 Allegheny County implemented a vaccine mandate.

02:42 - 35.345 And ultimately, Ms..

02:42 - 38.448 Wilkerson refused to comply with that mandate and was terminated

02:42 - 41.651 in December 2021 As a result.

02:42 - 42.152 And Ms..

02:42 - 46.523 Wilkerson's appeal to the Pennsylvania Civil Service Commission as to her,

02:42 - 48.325 the commission found in favor of Ms..

02:42 - 52.028 Wilkerson ruling that the county did not have just cause

02:42 - 55.799 for the termination and also discriminated because she was a career question.

02:42 - 59.302 So because she's a civil servant employee,

02:42 - 02.372 she the department required

02:43 - 06.209 to follow the rules and there must be just cause for termination.

02:43 - 06.810 That's correct.

02:43 - 10.547 There must be just cause for the termination of a civil service employee.

02:43 - 14.084 So isn't just caused normally when someone's unfit for duty.

02:43 - 19.256 And here she asked for a religious exemption from the vaccine requirement

02:43 - 25.729 and also asked for a religious exemption for the daily testing.

02:43 - 27.164 The record does not support that.

02:43 - 31.301 She asked for a backup religious exemption accommodation.

02:43 - 36.339 As to the testing, her statement was that she did not want to get tested

02:43 - 41.845 because she would never get vaccinated and the policy said you must get

02:43 - 44.014 tested until fully vaccinated.

02:43 - 47.484 And she said, I have a spiritual objection to the vaccination

02:43 - 51.755 and because I will never get vaccinated, because the policy says

02:43 - 55.058 I must test until fully vaccinated,

02:43 - 57.894 I will test in fact.

02:43 - 01.164 Okay, So I would say, what distinction are you trying to make?

02:44 - 03.600 Because you didn't ask

02:44 - 06.069 for the religious exemption for testing,

02:44 - 10.540 but only asked for the religious for not being vaccinated.

02:44 - 11.274 Correct.

02:44 - 14.377 She only asked for religious accommodation after the vaccination

02:44 - 15.712 and not for the testing.

02:44 - 19.683 But if the end result of the policy that you continue to be tested

02:44 - 23.320 until you're vaccinated, doesn't it all come to the same end?

02:44 - 26.990 no. In fact, that was clarified in the record

02:44 - 28.892 show this with Ms..

02:44 - 29.993 Wilkerson.

02:44 - 33.129 Ms.. Wilkerson received a one day suspension for refusing to comply

02:44 - 36.499 with the test before being terminated

02:44 - 39.169 for the vaccination.

02:44 - 41.204 They explained to her that this was separate.

02:44 - 43.940 We would address your religious accommodation,

02:44 - 47.077 but you must comply with the testing at this point.

02:44 - 47.844 Do not.

02:44 - 51.081 But didn't she say to you, I don't want to be tested every day

02:44 - 54.384 because I'm never going to be vaccinated early on?

02:44 - 58.421 But then when she got the one day suspension, she clarified, I'm now to go

02:44 - 59.189 get tested.

02:44 - 03.159 The record more flak that even after confirming

02:45 - 07.731 that I don't have a religious objection to the testing and I will get

02:45 - 11.101 she still refused to show up for the required testing.

02:45 - 14.304 She then got a three day suspension for refusing to

02:45 - 15.805 show up for the required testing.

02:45 - 18.642 After that, had clarified with her and during

02:45 - 22.412 and after actually the interactive process it started.

02:45 - 25.382 As for her, this is contrary to what the commission found.

02:45 - 28.451 They found that

02:45 - 29.419 some employer

02:45 - 30.620 named Joyce didn't

02:45 - 35.025 review the memorandum of record where she made her accommodation request,

02:45 - 40.230 and that was little or no burden to be done to to to accommodate that.

02:45 - 43.066 That's her accommodation. Pardon me.

02:45 - 44.567 That's a later request.

02:45 - 49.205 So there was an October there was an August request

02:45 - 51.841 for an accommodation as to the vaccination requirement.

02:45 - 54.210 Okay. That was it. Just focus on what the commission said.

02:45 - 55.879 That's what I'm trying to look at pointing out

02:45 - 00.617 is that to date that the request in the memorandum of record

02:46 - 04.754 and that it failed to demonstrate, to make a good faith effort

02:46 - 09.292 to accommodate the appellants religious spiritual beliefs.

02:46 - 12.562 But that's only as to the vaccination requirement

02:46 - 15.665 but that that holding by the commission is only in relation

02:46 - 17.033 to the vaccination requirement.

02:46 - 17.801 That's the reason

02:46 - 22.105 why she was terminated was for failure to comply with vaccination requirement.

02:46 - 25.408 There was no religious accommodation request for the testing.

02:46 - 29.746 She received a one day, a three day and a five day suspension for the testing,

02:46 - 31.581 but never

02:46 - 32.649 requested a

02:46 - 37.354 religious accommodation for the testing was fired for not getting vaccinated,

02:46 - 40.357 for not being tested, for not being vaccinated.

02:46 - 45.528 And she made a request to be exempted for the vaccination for spiritual reasons.

02:46 - 46.363 That's correct.

02:46 - 48.565 And then that request was denied. That's correct.

02:46 - 50.133 That request was denied.

02:46 - 53.503 And then there was nothing after that to seek an accommodation

02:46 - 55.271 that she felt that she needed.

02:46 - 58.208 So are we here to I'm sorry, answer that question.

02:46 - 03.480 And there was there was also in October, there was an interactive process meeting

02:47 - 07.984 as to Wilkerson's request for religious accommodation.

02:47 - 10.253 That request was denied in October,

02:47 - 13.690 as October 22nd, 2021,

02:47 - 16.826 that requested that time was to be exempted from the vaccine,

02:47 - 21.264 to be allowed to mask and social distance and to test

02:47 - 24.401 only when there was a confirmed contact. Ms..

02:47 - 28.238 Wilkerson had come from contact with COVID or whether she's showing symptoms.

02:47 - 32.442 That was her request in October at the 11th hour.

02:47 - 36.146 So she an

02:47 - 37.847 Loudermilk notice

02:47 - 43.253 on November 27th, 2021, and that's a Tuesday.

02:47 - 46.289 And Saturday

02:47 - 50.026 before the Monday hearing, she sent a response to Loudermilk

02:47 - 54.931 here, hearing notice That was a three page letter.

02:47 - 57.901 She addressed mask disciplines,

02:47 - 00.170 various other matters, and buried in

02:48 - 03.173 that letter was a request to telework

02:48 - 05.442 that the Saturday

02:48 - 09.212 before the Monday hearing and the record shows that Ms..

02:48 - 12.248 Wilkerson did not raise those points at Lettermen hearing

02:48 - 14.117 simply showed up at Lowery's hearing.

02:48 - 18.455 So I have a continued spiritual objection to this vaccination requirement

02:48 - 20.090 and then was terminated.

02:48 - 23.693 So I didn't have an obligation to make

02:48 - 27.630 that additional religious request for the Loudermilk hearing.

02:48 - 31.634 And I understand in your advocacy role why you would use the phrase

02:48 - 35.638 buried in a letter, putting a request in writing to your employer.

02:48 - 38.741 I mean, that's a that's an accommodation request,

02:48 - 40.477 but you have to look at the circumstances here.

02:48 - 42.979 So you have months that go by.

02:48 - 44.747 Her accommodation request was denied.

02:48 - 48.151 Her accommodation request was denied October 22nd, and Ms..

02:48 - 52.388 Wilkerson makes no further mention of any other accommodation request for.

02:48 - 56.359 Months until December, when she's about to be terminated.

02:48 - 00.029 She sends this letter on a Saturday before a monday morning hearing

02:49 - 02.465 and makes no mention of an additional accommodation

02:49 - 06.069 request to the department when she's in fact in front of the department

02:49 - 11.708 under case law involving requests for accommodation where one party does

02:49 - 16.913 not participate in the in good faith in the in the interactive process,

02:49 - 21.017 that failure to participate in good faith is held against that party.

02:49 - 24.320 It's my position under that line of cases, Ms..

02:49 - 29.392 Wilkerson's delay of several months in trying to seek the accommodation

02:49 - 32.529 that she wanted and then to bury that nomination in a letter.

02:49 - 34.531 I understand that it's you writing on a Saturday

02:49 - 38.168 before a monday morning hearing, and to make no mention of that request

02:49 - 42.572 at that Monday morning hearing is not in good faith.

02:49 - 43.473 It sounds like to me

02:49 - 47.610 that you're arguing the facts and the commission is the fact finder.

02:49 - 48.511 That's not us.

02:49 - 52.215 I mean, you even stood up in the very beginning and, said

02:49 - 56.052 all the reasons for the policy, but the commission actually found

02:49 - 57.453 the opposite,

02:49 - 00.723 that all the reasons that you stated, they said in their decision

02:50 - 02.559 that there was no evidence to support that.

02:50 - 08.031 In fact, they said to the contrary, the number of cases COVID cases increased

02:50 - 13.570 during the period of the palace and so I just want to get to where

02:50 - 18.374 you believe that the commission aired and that there's no factual

02:50 - 22.679 basis for its findings as opposed to arguing the facts.

02:50 - 24.480 I wasn't here to argue the facts.

02:50 - 27.884 I'm only responding to questions about this 11th

02:50 - 32.555 hour request of the of accommodation.

02:50 - 35.525 As to the error, you're right.

02:50 - 39.963 The commission decided that this policy could not stand muster.

02:50 - 41.130 Its muster was.

02:50 - 42.732 But this has never happened before.

02:50 - 47.303 Typically when you go before the Civil Service Commission, if you have a firearms

02:50 - 52.275 in the workplace policy tardiness policy, an off duty conduct policy,

02:50 - 56.913 if you prove those violations of that policy, the commission doesn't

02:50 - 01.551 look to see if there's any way they can invalidate the policy itself.

02:51 - 03.720 But that's exactly what the commission did here.

02:51 - 06.656 Know that under the commission,

02:51 - 10.627 the commission said the appointing authority even alleges the appellant

02:51 - 14.831 never made an accommodation request, which is belied by the record of the case.

02:51 - 18.101 Then it goes on to talk about an accommodation request

02:51 - 22.372 and whether there was any burden to to granting that request.

02:51 - 27.043 And based on the record, they found that the appointing authority did not offer

02:51 - 32.282 appellant any a combination ignored about appellant's accommodation requests

02:51 - 35.785 that what the what the Commission did not do is engage

02:51 - 39.622 in any of the framework that is applicable to

02:51 - 43.226 a claim of discrimination that involves a reasonable accommodation.

02:51 - 49.065 Now I'm skipping over just cause and time, but in Janacek, this court

02:51 - 53.436 announced the framework for such a

02:51 - 57.240 discrimination case involving a request for reasonable accommodation.

02:51 - 02.578 The first burden is on the employee to show

02:52 - 05.648 a prima facie case of religious discrimination,

02:52 - 09.118 and that would include where the accommodation was made.

02:52 - 12.121 The person has a sincere religious belief

02:52 - 15.058 and where no just cause exists.

02:52 - 18.094 If the employer were to grant that accommodation

02:52 - 22.265 that the commission engage in none of that analysis,

02:52 - 24.634 the Commission did not analyze whether or not Ms..

02:52 - 27.403 Wilkerson had a sincere religious belief and all.

02:52 - 30.073 But why it conceded.

02:52 - 33.309 I remember specifically reading something about

02:52 - 37.447 we don't question the sincerity of evidence.

02:52 - 39.282 That's what concerns.

02:52 - 40.950 So the EEOC.

02:52 - 44.087 Back to your answer to my question, I have to disagree.

02:52 - 49.292 Page 34 The Commission engaging upon review the record the Commission finds

02:52 - 53.629 Appellant established a prima facie case of religious discrimination.

02:52 - 56.699 First, appellant holds a sincerely held religious

02:52 - 59.402 belief, etc., etc.,

02:52 - 02.872 but not under the standard, not under any standard.

02:53 - 05.408 Just reach that conclusion without citing to anything.

02:53 - 09.011 And it's important to note that the former Frazier case doesn't

02:53 - 12.448 much basically just need to allege I have a sincere religious belief.

02:53 - 13.383 It can't be.

02:53 - 16.786 It has to be a religious belief and not a statement about personal health.

02:53 - 17.620 And if you look at Ms..

02:53 - 21.157 Wilkerson's statement, her statement was, I have a belief centered

02:53 - 26.529 in African spirituality and overall wellness that the body can heal itself.

02:53 - 30.066 She did not say that I have a religion

02:53 - 33.302 or religious belief that conflicts with the vaccination requirement.

02:53 - 34.537 And if you look at it,

02:53 - 37.306 I think that's what she said in the statement that you stated.

02:53 - 39.876 And I don't believe you have to use any magical words.

02:53 - 45.548 And what will you then look at page 35 and 35 of the appellant

02:53 - 46.983 old spiritual beliefs centered around

02:53 - 50.853 African spirituality like any old self, and in accordance with those beliefs,

02:53 - 54.524 she has not taken any vaccines for 6 to 7 years.

02:53 - 55.324 That's correct.

02:53 - 58.327 And that raises a good point to.

02:53 - 00.930 Look, she took a vaccine six years ago.

02:54 - 03.900 Fallon requires that the objection to vaccine

02:54 - 07.570 be part of an overarching belief system.

02:54 - 10.706 So when somebody chooses to take some vaccines

02:54 - 14.444 and not others, that is not an overarching vaccine

02:54 - 18.548 system of beliefs. And

02:54 - 24.821 getting back to your points as to

02:54 - 27.757 I've lost my train of thought, so I'm going.

02:54 - 29.692 But I guess I found that.

02:54 - 31.694 What was your question? I think that's what I want to respond to.

02:54 - 36.165 And it was I had said I recall reading somewhere that Ms.

02:54 - 40.203 that your client had said, we don't doubt the sincerity of.

02:54 - 44.674 And then so the EEOC sets forth a framework

02:54 - 47.543 where employers are supposed to how employers

02:54 - 49.812 supposed to deal with requests for religious accommodations.

02:54 - 52.448 And the EEOC tells employers,

02:54 - 56.419 you must take the request at face value and deal with the undue hardship.

02:54 - 01.791 But that doesn't mean that in a subsequent case

02:55 - 06.262 where the plaintiff is suing the employer, the plaintiff is excused

02:55 - 09.932 from meeting their burden to establish the sincere religious belief

02:55 - 13.936 because under that framework in Fowler and other and third

02:55 - 18.407 Circuit precedent, this is dealing with a are a in Title seven.

02:55 - 21.344 It's the employee's burden

02:55 - 25.548 to establish a reasonably a sincerely held religious belief,

02:55 - 28.885 not the employer's burden burden to debunk it.

02:55 - 30.820 So here

02:55 - 32.088 the county did

02:55 - 36.759 exactly what the EEOC says to do, which is to take the employee's

02:55 - 40.796 religious belief at face value and deal with undue hardship.

02:55 - 44.500 We did that, and we think undue hardship does exist in this case.

02:55 - 47.970 And as Wilkerson shared, an office with one person,

02:55 - 51.908 shared an office suite with eight other people, was part of community

02:55 - 55.845 outreach, and the county had to go out to community events and meet with people.

02:55 - 58.180 Yes, this was suspended for a brief period of time,

02:55 - 01.918 but by the time the hearing came about in

02:56 - 04.987 six months after she was terminated, that'll be July 2022,

02:56 - 08.691 those community outreach events were still were up and running in full.

02:56 - 11.994 So there was a brief period of a couple of months where that was suspended.

02:56 - 14.463 But by the time we were for the commission,

02:56 - 18.601 it was Wilkerson would have been hired to make sure that it makes sense

02:56 - 22.838 for the commission have said you need to prove that by her

02:56 - 26.475 not being vaccinated, she was spreading a disease

02:56 - 28.978 know, because that's not what the commission ever did.

02:56 - 33.883 And I to go back to Perry on this just cause in Perry,

02:56 - 36.986 the Commonwealth Court review, the commission's order

02:56 - 42.024 that upheld a termination for, an employee who had a 30 year unblemished record

02:56 - 46.629 who brought a gun into the workplace once, no signs of violence.

02:56 - 49.799 The commission did not say, okay, well let's look and see

02:56 - 52.735 if this gun policy is required. Let's look back.

02:56 - 56.238 Were there any gun incidents at this at this employer

02:56 - 59.241 for the last 30 years?

02:56 - 03.212 Did this employee present any specific risk of harm?

02:57 - 06.415 No. The Perry and Perry, the commission.

02:57 - 10.820 I don't know how you can draw an analogy from a gun case

02:57 - 14.590 to where you're being mandated to put something into your body.

02:57 - 16.592 I mean, there's a big difference here.

02:57 - 20.596 And then the one is based on a on a religious belief where

02:57 - 24.800 I don't know a person's religious beliefs that they have to carry the gun

02:57 - 26.102 or the Second Amendment right.

02:57 - 27.203 They didn't go in.

02:57 - 31.107 Perry and look at Second Amendment rights as to why this person

02:57 - 32.508 had a right to carry the gun.

02:57 - 37.747 In Perry, the commission, as affirmed by this court, affirmed

02:57 - 41.150 and deferred to the employer's discretion in determining, hey,

02:57 - 44.520 you guys have made up your mind that this gun policy is important to you.

02:57 - 45.921 You have proof that this employee

02:57 - 49.525 violated it and we're going to affirm the termination.

02:57 - 52.695 And that's the case in every case I've ever argued before the commission.

02:57 - 56.599 You have a case where somebody has been tardy a lot for a short period of time.

02:57 - 59.969 No proof that their work part of it has as suffered,

02:57 - 03.205 but simply they are tardy and violating our policy.

02:58 - 06.542 If we can prove that they are tardy in violating our policy, the Commission

02:58 - 09.145 would uphold just cause. And

02:58 - 10.713 you agree with me in any

02:58 - 15.518 regards that there's a difference between carrying a gun and an employer,

02:58 - 19.488 forcing someone to put a vaccine into their body or lose their job?

02:58 - 21.557 Well, I would say a policy is a policy.

02:58 - 23.192 If you have a policy that prohibits

02:58 - 27.430 gun ownership, somebody who's very hot on certain

02:58 - 28.297 question.

02:58 - 29.765 So thank you very, very much.

02:58 - 31.067 You've done well over your time.

02:58 - 33.269 You have a few minutes left for rebuttal.

02:58 - 40.076 Thank you,

02:58 - 40.509 Attorney.

02:58 - 43.579 Listen, may it please the Court My name is Nicholas Adeleke.

02:58 - 46.615 I'm representing the commission in this matter.

02:58 - 48.684 Will you be sharing your time?

02:58 - 50.753 No, I'll be doing the argument in. I'm sorry.

02:58 - 55.391 This is Chief Counsel Lawson with our office as well.

02:58 - 58.694 She's a serious for moral support. So

02:58 - 59.395 you use that.

02:58 - 02.898 What's the standard of review?

02:59 - 06.769 The standard of review here as to

02:59 - 09.105 these cases that are before?

02:59 - 12.808 Your Honor, as to the

02:59 - 14.143 there's two issues.

02:59 - 18.280 There's the just cause issue under the Civil Service Act.

02:59 - 21.717 And then there is also under the Civil Service Act,

02:59 - 25.888 the of Discrimination.

02:59 - 27.189 So the review

02:59 - 32.328 here, by Your Honor, is by this Court excuse me is to excuse

02:59 - 35.631 we would be

02:59 - 38.701 you're not reevaluating the facts,

02:59 - 39.969 I would say.

02:59 - 45.708 And in this case, one thing I'd like to touch on as to the Perry case

02:59 - 49.011 that the department was saying here,

02:59 - 52.381 when they say there's a policy in place that someone is tardy,

02:59 - 55.785 an absentee policy is in place,

02:59 - 58.854 the issue there is that touches on the person's ability

02:59 - 02.658 to do their job if they're tardy and they're not showing up to work on time,

03:00 - 04.260 they're not doing their job.

03:00 - 10.533 So affects their ability to do their job competently and correctly.

03:00 - 13.202 If you're out there, you can't do your job.

03:00 - 16.672 Can you respond to their argument that

03:00 - 18.274 there's a difference in this case?

03:00 - 23.946 Because the commission came in and started questioning the basis for the policy,

03:00 - 29.718 we we didn't I would say we didn't necessarily question the basis

03:00 - 31.053 for the policy.

03:00 - 34.824 I mean, the policy was put in place by the department.

03:00 - 39.161 Their reasoning was for overall public safety

03:00 - 41.397 to Allegheny County generally,

03:00 - 44.733 and then the coworkers within the Department of Health.

03:00 - 50.539 We had looked at the policy in the sense of

03:00 - 51.173 does Ms..

03:00 - 55.778 Wilkerson's vaccination status affect her ability to do her job,

03:00 - 59.148 and does that equate to just cause for removal?

03:00 - 02.251 So that was the reason why we were looking at the policy

03:01 - 07.456 and also we looked at cases such as Butler and Garvey

03:01 - 10.993 to provide us with guidance to try to see what type of factors

03:01 - 13.996 we should look at to make the correct decision in case.

03:01 - 16.398 So we did look at things like Ms..

03:01 - 18.667 Wilkerson's job duties.

03:01 - 22.037 She did work with a coworker at the time, except it was one coworker.

03:01 - 25.374 Both were required to be mask at the time

03:01 - 25.808 she had

03:01 - 29.678 discussed with her supervisor moving to a different office

03:01 - 34.884 in which there was open office space for her to move to.

03:01 - 37.953 And in addition

03:01 - 40.556 there was also this in the department resource up

03:01 - 44.593 the public collaboration portion of her job

03:01 - 48.397 at the time that she was actually removed, that she she wasn't required

03:01 - 53.936 to do that portion of her job, as I will say, hiatus due to the pandemic

03:01 - 57.439 the department citing two that at the time they removed her,

03:01 - 01.243 it was almost a preemptive removal because obviously,

03:02 - 02.344 if it's not a part of her job

03:02 - 06.148 that time, it can't be used as a reason for just cause to remove her.

03:02 - 08.250 I think the department

03:02 - 11.921 could have decided to say, well, okay, you're doing your job at this time.

03:02 - 13.188 We have this policy in place,

03:02 - 17.192 there is this public relation aspect of your position.

03:02 - 22.331 We can at this case grant an accommodation for you to mask social

03:02 - 27.303 continue to test, which is Wilkerson was willing to pay for the testing portion

03:02 - 34.343 and revisit this in six months when this public of your job comes back into effect.

03:02 - 38.280 And if at that time it is creating a health and safety risk in effect

03:02 - 42.217 and you can't do your job, that may have been for just cause,

03:02 - 47.256 but here they are using that as a reason to

03:02 - 48.490 remove her

03:02 - 53.329 when in fact it was not part of her job that time.

03:02 - 56.832 We also looked at factors is whether or not there was an existing

03:02 - 00.703 vaccination requirement in place when she took the job.

03:03 - 05.741 There was not for the flu or pneumonia or something like that.

03:03 - 08.110 So obviously workers then took the job.

03:03 - 12.381 She did not anticipate that she'd have take vaccines for this.

03:03 - 14.316 Also,

03:03 - 16.952 the department did not deem that this job

03:03 - 19.922 that she had required, that she needed to get vaccines.

03:03 - 25.561 Had they done that, it could have been put in as a requirement at the time.

03:03 - 28.230 As And then we also looked at the reasonable relation

03:03 - 29.665 between the ends and the means.

03:03 - 33.635 And in doing that, that's when we did look at the evidence

03:03 - 39.274 presented by the Department as to why they put this policy in place

03:03 - 44.013 and in the framework of just cause we had looked at.

03:03 - 47.383 Well, they're saying it's for public safety

03:03 - 51.520 and for the safety of the fellow employees.

03:03 - 55.391 Well, at that point they had a 75% vaccination

03:03 - 58.394 rate within the department

03:03 - 02.765 as your Honor had pointed out, their own witnesses

03:04 - 06.602 who testified that the numbers had plateaued.

03:04 - 11.373 And actually the numbers didn't increase until after conceivably

03:04 - 14.810 they would have fired everyone who was not vaccinated

03:04 - 18.080 because they began increase in December and then in January.

03:04 - 22.451 So just looking at that, in terms of, well,

03:04 - 27.022 you're willing to potentially fire a quarter of your staff

03:04 - 30.759 based on this vaccination policy and the numbers

03:04 - 36.231 that your own witnesses are providing us don't seem to match up with the reasons

03:04 - 39.701 why you're saying you put this policy into place.

03:04 - 42.971 So based on that, all of that, we found that Ms..

03:04 - 45.974 Wilkerson was competently doing her job at the time

03:04 - 51.680 and her vaccination standards didn't hamper her ability to do her job.

03:04 - 54.616 And as a civil service employee,

03:04 - 57.486 the department does have to present just cause to show

03:04 - 02.024 she should be removed.

03:05 - 04.793 As to the

03:05 - 08.130 discrimination portion of this,

03:05 - 08.831 we found Ms..

03:05 - 12.501 Wilkerson did present sufficient evidence establishing discrimination

03:05 - 16.105 by the department in that area, make any effort to accommodate Ms..

03:05 - 20.375 Wilkerson's religious beliefs, and that reasonable her reasonable

03:05 - 28.083 accommodation request would have not posed an undue burden on the Department.

03:05 - 31.053 Under that, we obviously looked at Title seven

03:05 - 34.656 because this was a religious discrimination case.

03:05 - 36.191 We found that Ms..

03:05 - 41.630 Wilkerson did make out a prima facie case of discrimination.

03:05 - 45.701 We found that she did hold a sincerely held belief.

03:05 - 48.370 She had testified that she had read

03:05 - 51.540 African spirituality, that her body can heal itself

03:05 - 55.110 in accordance with those beliefs and has not received a vaccine

03:05 - 01.517 in six or seven separate six or seven years since she had those beliefs

03:06 - 03.552 as to the

03:06 - 06.121 department's objection or

03:06 - 10.092 contesting of whether she had a sincerely held belief

03:06 - 12.661 that was something that they had raised

03:06 - 15.664 before us when

03:06 - 21.103 during the hearing they did not elicit testimony or cross-examine Ms.

03:06 - 25.574 on her beliefs during the hearing when she had testified.

03:06 - 29.011 And additionally, in their brief to us,

03:06 - 33.382 they specifically stated that are conceding that issue

03:06 - 36.718 and that what they were actually contesting was

03:06 - 40.822 there was a conflict between her sincerely held beliefs

03:06 - 43.292 and the policy, and there was not a conflict, I'm sorry,

03:06 - 49.631 between your sincerely held beliefs and the policy that was in place.

03:06 - 52.768 We found, obviously, that she did have sincerely

03:06 - 55.904 held belief based on her testimony, and that did conflict

03:06 - 59.575 with the vaccination policy because she believes

03:06 - 02.144 had a religious objection to being vaccinated.

03:07 - 05.681 She informed her employer multiple times about that

03:07 - 08.016 and there was interviews about it

03:07 - 12.821 and was disciplined because she was ultimately removed.

03:07 - 13.822 So we found

03:07 - 16.892 she made out a prima facie case at that point.

03:07 - 20.062 Then we looked at whether or not the department made a good faith effort

03:07 - 23.799 to reasonably accommodate her beliefs.

03:07 - 26.335 In doing that, we looked at this court's case

03:07 - 29.338 in Canteen Corporation.

03:07 - 32.140 There.

03:07 - 35.143 This Court It said that the interactive process,

03:07 - 39.081 as its name implies, requires employers to take some initiatives.

03:07 - 41.149 The interactive process would have little meaning

03:07 - 44.720 if is interpreted to allow employers in the face of a request accommodation

03:07 - 50.392 simply to sit back passively offer nothing, and then in post termination

03:07 - 54.796 litigation knocked down every specific accommodation is an undue burden

03:07 - 57.332 and also

03:07 - 00.202 is put in place because this court had found it

03:08 - 02.471 unfair, exploits the employee's comparative

03:08 - 06.341 lack of information about the accommodations the employer might allow.

03:08 - 11.013 And as to the finding that there was really interactive

03:08 - 16.485 process here, that it was just interactive in name only.

03:08 - 18.420 The way this was done

03:08 - 22.591 was the interviewers in these cases

03:08 - 26.028 had no say in whether or not accommodation would be granted or not.

03:08 - 29.631 They, the viewer, for Ms..

03:08 - 34.903 Wilkerson She testified that he had no say in that

03:08 - 38.073 he was told to ask questions and that's what happened.

03:08 - 39.675 He went in, ask questions about Ms..

03:08 - 44.413 Wilkerson's beliefs and then also about her job duties.

03:08 - 47.783 He then wrote up a summary about that, presented it to Ms..

03:08 - 50.485 Well, it said, Ms.. Wilkerson said, Is this accurate.

03:08 - 51.720 Is there anything you want to add?

03:08 - 52.287 And then he said,

03:08 - 56.692 I sent it up the upper management, and that was all I had to do with this.

03:08 - 00.062 There was no testimony from the department

03:09 - 04.700 that there was ever a conversation about a religious accommodation.

03:09 - 07.536 During that that interview,

03:09 - 10.005 the interviewer didn't testify to.

03:09 - 13.008 There was no other evidence offered as that.

03:09 - 16.745 And getting back to something that Department had said, they said

03:09 - 20.682 that there were multiple discussions

03:09 - 22.117 and that Ms..

03:09 - 28.423 Wilkerson was not acting in good faith when she had provided that memorandum

03:09 - 30.692 in looking the evidence

03:09 - 34.229 that was presented to us, it seemed that there was never a conversation

03:09 - 37.332 or even a request from the Department to Mrs.

03:09 - 39.601 Wilkerson to present an accommodation.

03:09 - 43.405 She received that letter that was mailed out on November 23rd,

03:09 - 46.141 and when she received that letter on November 23rd,

03:09 - 50.579 she immediately wrote up this written memorandum of record

03:09 - 54.983 and where I would say it was not varied in the letter.

03:09 - 58.920 It was actually quite clear in the letter where she stated,

03:09 - 02.557 I would like to ask, is a formal request of accommodation request

03:10 - 05.560 to reinstate to be reinstated to work if possible.

03:10 - 09.331 I would like to request to have my office space moved to a room

03:10 - 14.102 where I can work by myself or an option to work from home until further guidance

03:10 - 18.073 on religious accommodations during the pandemic is received.

03:10 - 20.108 That seems fairly clear.

03:10 - 21.810 That seemed fairly curious as the Commission

03:10 - 25.647 that that is a request for accommodation.

03:10 - 27.349 The common

03:10 - 29.851 the departments witness

03:10 - 32.020 acknowledged that they receive that letter.

03:10 - 34.156 They received it before the interview.

03:10 - 38.627 The I'm sorry, hearing on her violation of the vaccination.

03:10 - 41.563 They testified they did not fully review it.

03:10 - 45.400 And then the no testimony that they actually

03:10 - 47.936 it at the hearing either.

03:10 - 51.807 There was no testimony in the record that said, we had I think did it come over

03:10 - 55.577 like just before the weekend, before the interview?

03:10 - 59.414 Is that why they couldn't review it or No.

03:10 - 02.184 So they heard testimony.

03:11 - 04.453 She didn't have time to fully review it.

03:11 - 10.459 It was came in, I believe, on the so the letter dated November 23rd,

03:11 - 14.463 that Saturday is when it came in the interactive

03:11 - 17.032 or the I'm sorry the hearing on the violation

03:11 - 20.435 was on that Monday which was the one Saturday to Monday.

03:11 - 21.603 Correct. Okay.

03:11 - 24.673 So that does kind of explain why somebody might not

03:11 - 27.943 have had a chance to review it and that it's possible.

03:11 - 31.880 Yes, I agree with Your Honor, although I would say that

03:11 - 34.683 the reason that I was a ms.

03:11 - 38.954 will present in this case wait until that point was the original letter

03:11 - 45.260 that sent out to I sent out to her way back when announcing this policy.

03:11 - 50.131 It didn't say, hey, give us accommodations

03:11 - 52.834 when she went in for these interactive interviews.

03:11 - 58.907 There no discussions or offer from the department to discuss accommodations.

03:11 - 02.244 When she was denied

03:12 - 05.780 the accommodation 22nd, there was nothing in there saying

03:12 - 10.185 and the accommodation was specifically, I would say the language of that

03:12 - 14.389 was specifically from the Department where they're saying

03:12 - 19.394 she's asking for an exemption from the Vaxart vaccine.

03:12 - 21.930 Yes. But you never discussed

03:12 - 24.933 what an alternative could be to that.

03:12 - 27.969 So that was, I think, the issue

03:12 - 32.674 where it too late in the day because it's the first time she got a letter saying

03:12 - 36.211 if you have accommodations, please let us know.

03:12 - 37.913 So she did.

03:12 - 40.282 Regardless,

03:12 - 43.285 after that meeting on the 28, she was immediately

03:12 - 48.089 December 1st, the next day following that.

03:12 - 53.061 So I think it was a clear asking for the accommodation

03:12 - 58.033 and it was not properly handled

03:12 - 58.967 as to.

03:12 - 03.672 So ultimately the interviews didn't discuss accommodations.

03:13 - 07.609 The department never proposed accommodations like there's supposed

03:13 - 10.812 to be a back and forth conversation, I would submit for that.

03:13 - 12.080 And they ignored Ms..

03:13 - 14.282 Wilkerson's for an accommodation.

03:13 - 18.453 As to the undue burden, I would just note under Rau

03:13 - 22.657 V the joy that the standard

03:13 - 23.825 announced by the U.S.

03:13 - 25.493 Supreme Court now is the employer must show

03:13 - 27.896 that the burden of granting the accommodation will result

03:13 - 33.134 in substantial increased cost in relation to the conduct of a particular business

03:13 - 36.137 and that the court should consider

03:13 - 39.207 the accommodations at issue, the accommodation issue and the practical

03:13 - 41.977 impact in light of the nature, size and operating costs.

03:13 - 45.714 The employer here I submit that there was no burden

03:13 - 49.317 on the Commonwealth to accommodate make the accommodations Ms..

03:13 - 52.187 Wilkerson was requesting. They had open office space

03:13 - 56.424 in the Allegheny County and yes, I'm sorry, Allegheny.

03:13 - 58.426 I apologize.

03:13 - 01.863 In Allegheny County, they had open office space for her.

03:14 - 04.933 She was already teleworking, so there was no additional expense.

03:14 - 05.567 Plus, Ms..

03:14 - 09.371 Wilkerson was also willing, as she said, to pay for any continued testing.

03:14 - 10.538 So really, there was no expense.

03:14 - 13.408 So thank you for your time.

03:14 - 16.711 I would just ask that this court affirm the decision by the commission

03:14 - 27.155 in this matter. Thank you very much.

03:14 - 30.759 If I could briefly, with respect to Ms..

03:14 - 35.430 Wilkerson's ability to do her job, it was acknowledged that

03:14 - 37.565 once community outreach

03:14 - 41.002 portion of her work opened back up,

03:14 - 44.039 that the county determined that she would not be able to do that

03:14 - 46.107 portion of her job should they have waited.

03:14 - 49.110 Until that portion of her work was

03:14 - 51.546 so reinstated, there was such a brief period.

03:14 - 55.050 Again, by the time the hearing was held some six months later,

03:14 - 57.552 that portion was fully up and running.

03:14 - 01.189 So it transitioned back into that aspect.

03:15 - 04.159 Moreover, that has never been

03:15 - 06.995 so in cases dealing with tardiness.

03:15 - 10.331 There's never evidence about what work is not performed.

03:15 - 14.069 There are other cases to where a violation of policy

03:15 - 17.072 without other evidence of

03:15 - 21.676 of an inability to perform their job constitutes just cause.

03:15 - 25.346 We've had cases where off duty conduct with our employee storm

03:15 - 29.517 to a school bus and yelled racial slurs at the school bus driver.

03:15 - 32.921 That was an off duty conduct by a civil service employee.

03:15 - 35.857 No impact on the employee's ability to do their job.

03:15 - 36.858 The employee was terminated.

03:15 - 40.195 The commission did not look behind the off duty conduct policy

03:15 - 42.230 and simply upheld termination.

03:15 - 45.900 Similar, We had an employee for the Civil Service Commission

03:15 - 48.903 or the employee had hundreds of inappropriate pictures on their computer,

03:15 - 53.174 but there was no evidence of any impact on their job responsibilities.

03:15 - 00.281 Again, termination and was upheld by the Commission.

03:16 - 03.351 As to the

03:16 - 07.288 undue hardship and the request for religious accommodation.

03:16 - 12.327 The Commission found that a religious accommodation that Ms..

03:16 - 17.232 Wilkerson had voiced a sincerely held religious belief.

03:16 - 21.269 However, if you look at the case that I cited in my brief filing,

03:16 - 24.973 in that case, the employee makes similar representations

03:16 - 28.676 about having a religious belief that precludes the flu vaccine,

03:16 - 31.913 because the employee believes that the flu vaccine

03:16 - 35.984 does more harm than good and the employee's body can heal itself.

03:16 - 41.322 Similar requests, similar statement of religious beliefs.

03:16 - 44.926 But the court and Salon found that the employee did not meet

03:16 - 49.097 their burden in establishing a sincerely held religious belief.

03:16 - 54.035 And finally, in Janacek, that's not the end of the analysis

03:16 - 57.438 to determine if the employee had set forth a prima facie case and.

03:16 - 00.875 There is no undue hardship, which I would contest that the Commission

03:17 - 04.579 never even looked into the safety aspect of undue hardship.

03:17 - 05.680 They're sitting up here today

03:17 - 18.426 talking about the hard costs but in a case cited in my brief, it's

03:17 - 21.029 the I can't remember

03:17 - 25.099 Camp Corcoran versus Lancaster General Hospital safety concerns.

03:17 - 29.103 Not just hard costs, but safety concerns can an undue hardship.

03:17 - 32.974 And finally, under Janacek, even if there's a prima facie case

03:17 - 37.345 and no undue hardship, the Commission must then undertake an analysis.

03:17 - 41.449 Compare the employee's proffered reason here was safety

03:17 - 45.420 and determine whether there was any evidence, a pretext,

03:17 - 48.122 and only if there's no evidence of pretext

03:17 - 52.093 would the Commission find that there was discrimination.

03:17 - 55.096 It's not purely a Title seven analysis.

03:17 - 58.833 Janacek imposes a step on the Commission,

03:17 - 00.935 which the Commission did not even acknowledge.

03:18 - 03.671 There was no analysis of whether the counties

03:18 - 07.675 proffered reason safety in the work's place was pretextual.

03:18 - 10.111 And for that reason,

03:18 - 13.815 the Commission aired in reaching a decision

03:18 - 18.353 that discrimination existed in this case because it simply didn't follow own

03:18 - 20.855 framework as established by Janacek.

03:18 - 22.590 Okay.

03:18 - 23.424 Thank you. Yes.

03:18 - 24.926 Thank you very, very much.

03:18 - 29.030 Again, another very well briefed, argued case.

03:18 - 33.768 And we appreciate your arguments today.

03:18 - 38.273 Our last two consolidated cases involve appellant Matthew von Bevers right to know

03:18 - 42.076 law request seeking digital copies of the 2020

03:18 - 45.513 general election ballots for Allegheny County.

03:18 - 49.550 Later, appellant Patricia Weaver filed a right to no law request with the county

03:18 - 54.322 seeking digital copies of all ballots for the 2020 general election.

03:18 - 57.692 The county denied both requests for access, arguing that

03:18 - 02.597 the requested records are confidential under Section 308 of the election code.

03:19 - 05.133 And Bieber and Weaver filed timely appeals

03:19 - 08.770 to the Office of Open Records.

03:19 - 11.873 Following proceedings before the Office of Open Records, appeals

03:19 - 15.810 officers noted that both the Weaver request and the request

03:19 - 19.414 sought digital copies of all ballots, including mail in ballots,

03:19 - 24.319 and determined that mail in ballot images are public under the election to

03:19 - 26.921 the Office of Open Records, then ordered the county

03:19 - 29.023 to provide access to the mail in ballots

03:19 - 32.794 in accordance with the access provisions of the election code.

03:19 - 35.630 The county filed appeals at the Office of Open Records.

03:19 - 37.999 Final orders. The trial court.

03:19 - 42.437 The trial court consolidated the matters, held a hearing, and then issued orders

03:19 - 45.440 granting the county's appeals chambers and Weaver's

03:19 - 48.443 appeals to court followed.

03:19 - 52.981 Appellants argue that the election code expressly makes official mail in ballots

03:19 - 57.151 subject to the public access, and that the trial court aired and holding

03:19 - 58.653 that the county was not required

03:19 - 02.323 to provide appellants with access to voted official mail in ballots

03:20 - 06.627 that are free of any information identifying voters

03:20 - 07.195 further.

03:20 - 11.099 Because the election code provides for public access to election related records

03:20 - 15.570 and also the contents of ballot boxes, and follow the canvasing

03:20 - 19.574 and computation of votes noted official mail in ballots are removed from

03:20 - 22.577 and no longer among the contents of the ballot boxes

03:20 - 25.313 is the contention of the appellants that the trial court aired

03:20 - 30.852 and voted official mail in ballots are forever secret.

03:20 - 32.020 The county argues that the

03:20 - 35.590 election code, which controls the public nature and distribution of records

03:20 - 40.161 related to elections, supersedes the right to know law

03:20 - 43.531 as administrative body responsible for adjudicating disputes

03:20 - 45.033 under the right to know law.

03:20 - 47.902 The county argues that the Office of Open Records lacks

03:20 - 52.140 jurisdiction over requests for records that are governed by the election code.

03:20 - 54.842 The county maintains that the election code provides

03:20 - 57.812 that voted ballots are not open to public inspection.

03:20 - 01.816 Now, this prohibition on public access to voters ballots includes ballots

03:21 - 06.621 that were cast by mail, whether by an absentee voter or a mailing voter.

03:21 - 09.991 Although the election code provides public access to official mail in ballots

03:21 - 13.961 the county, maintains that an official mail in ballot is not a voter's ballot

03:21 - 18.032 as public access to voted ballots does not depend on how the voter ID ballot

03:21 - 20.568 is cast.

03:21 - 23.905 The Pennsylvania Department of State filed an amicus curiae brief

03:21 - 28.142 arguing that the right to know law does not govern the requested issue here,

03:21 - 31.712 as both the law itself and the governing case law make it clear

03:21 - 34.382 that the right to know law cannot supersede other law

03:21 - 37.552 and that the Office of Open Records is without authority to order

03:21 - 41.522 disclosure of records based upon other statutes.

03:21 - 44.525 As such, it is the department's position that the Office of Open

03:21 - 47.528 Records lacked jurisdiction to order disclosure of the records.

03:21 - 49.730 At issue here.

03:21 - 51.265 Further, the Department maintains

03:21 - 54.902 that the Office of Open Records was wrong in the merits of the election code

03:21 - 58.773 does not permit the public to access voter ballots.

03:21 - 03.077 The department explains that Section three of the election card states that

03:22 - 07.915 the contents of ballot boxes and voting machines are not open to public inspection

03:22 - 12.453 and that appellants wrongfully claimed that Section 1370 of the Election Code,

03:22 - 14.255 which provides for public disclosure

03:22 - 19.260 of official mail in ballots, somehow abrogates Section 308.

03:22 - 21.596 The department maintains that the language upon

03:22 - 25.800 which appellants rely refers to the inverted form of the ballot.

03:22 - 30.004 The Department of verse of the trial court correctly recognized that Section 308

03:22 - 34.375 denies the public access to the contents of ballot boxes and voting machines.

03:22 - 37.512 And it would be it would make no sense to deny access

03:22 - 41.616 to those records, but permit access to voting mail in ballots.

03:22 - 43.784 As such, it is the department's position

03:22 - 46.787 that the trial court correctly reversed the offices that have been records

03:22 - 51.492 and concluded that voted in ballots are not subject to disclosure.

03:22 - 54.362 With that, let's listen to the argument.

03:22 - 56.797 Thank you, Your Honor. Now, my name is J.

03:22 - 00.101 I would like to reserve 5 minutes of rebuttal time.

03:23 - 00.935 I'm pleased.

03:23 - 05.473 The Court We are here today to ask that the trial court be reversed.

03:23 - 09.577 And in your honor, this is a case that was so nice it had to be argued

03:23 - 10.044 twice.

03:23 - 14.382 This is the second time we're here today to argue this case

03:23 - 18.352 about whether the three decisions issued by, the Commonwealth Court,

03:23 - 22.089 since this was last argued impact, whether voted mail in ballots

03:23 - 26.127 or subject to public access under the Pennsylvania right to know law,

03:23 - 29.430 we believe that these decisions support allowing the public to see voted

03:23 - 34.202 mail in ballots after they are no longer in use by county election officials.

03:23 - 36.137 Now, before we discuss these three cases,

03:23 - 40.374 I just want to about two elements that I think was really more discussed.

03:23 - 43.778 This got very much by the Commonwealth Court in its opinions

03:23 - 47.048 in private, in honey, in

03:23 - 50.084 Strowman, as well as first.

03:23 - 53.621 There's the Pennsylvania Supreme Court, his long held sense

03:23 - 57.658 that the election code is a highly remedy statute.

03:23 - 01.028 It must be interpreted, delivered liberally

03:24 - 05.199 in order to secure a proper computation of votes in an election,

03:24 - 08.536 and should also be interpreted in favor of machinery

03:24 - 12.006 that ensures good arithmetic in counting ballots.

03:24 - 16.310 That's a 1959 case and ray recount of ballots of Rome Township,

03:24 - 21.482 155 Atlantic second, 361.

03:24 - 24.785 Secondly, the Pennsylvania Constitution, under Article one,

03:24 - 29.357 Section five, provides that elections must be free and equal.

03:24 - 33.094 We believe that the course that we advocate for here today

03:24 - 37.331 and that that this court followed in private is solely designed

03:24 - 42.336 to ensure that good arithmetic occurred and comports with the election codes.

03:24 - 44.338 Remedial purpose.

03:24 - 44.905 As to those

03:24 - 48.976 cases, the first of which is Honey versus Lycoming County.

03:24 - 51.946 In that case, the court held that a cast vote record

03:24 - 56.017 is not subject to public access under Section 308 of the election Code

03:24 - 00.454 because it is among the contents of a ballot box or a voting machine.

03:25 - 03.624 In the present case, however, there's no CVR at issue.

03:25 - 06.294 The cast vote record is not what's being requested here.

03:25 - 08.896 It's just the voted mail in ballots.

03:25 - 11.465 And unlike those records in Honey

03:25 - 16.671 Section 1307, D of the election code provides that mail in ballots are public.

03:25 - 19.240 A Section 308 of the election code.

03:25 - 22.510 The contents of ballot boxes are not

03:25 - 25.413 now in an unreported case that was a companion

03:25 - 28.382 to honey stirrer ham versus Lycoming County.

03:25 - 30.351 This court held that voted.

03:25 - 33.788 In-person ballots are not subject to public access,

03:25 - 37.291 however, that case, it's important to note that the election board

03:25 - 38.826 provided the requester

03:25 - 43.130 with voted mail in ballots, and this court agreed with the lower court

03:25 - 46.534 that the special of Section 1307

03:25 - 51.972 and 1309 as to mail in absentee ballots, quote, are an exception

03:25 - 53.741 to the general language of Section

03:25 - 57.545 three eight barring disclosure of voted ballot images.

03:25 - 00.348 And that's at START page six in that case.

03:26 - 04.952 So how would you define voted ballot voted?

03:26 - 07.955 Well, it depends on which kind of ballot you're talking about.

03:26 - 11.625 So we have mail in ballots here and we have in-person ballots

03:26 - 13.361 for purposes of 308.

03:26 - 16.831 I think a distinction between voted ballots for purposes

03:26 - 21.602 of the traditional voting sense since 1937 and the new mail in ballots system.

03:26 - 26.640 Why explain I would turn you to section three or nine of the election code.

03:26 - 30.644 So three or nine of the election code, it requires all official ballots

03:26 - 34.849 and the content of ballot boxes to be preserved for four months.

03:26 - 37.952 However, Section 13 07d instead

03:26 - 41.722 requires mail in ballots to be kept for a period of two years.

03:26 - 44.191 If mail in ballots are to be

03:26 - 48.696 the same as the content of ballot boxes or official ballots,

03:26 - 51.599 then they would be subject to the same retention requirements

03:26 - 52.233 and instead

03:26 - 56.170 the general Assembly explicitly decided to treat mail in ballots differently

03:26 - 00.341 than either official ballots or the content of ballot boxes.

03:27 - 02.843 And as a result, the restriction under Section

03:27 - 06.080 of eight of the election code does not apply at all.

03:27 - 10.151 What about the secret ballot clause of the Pennsylvania Constitution?

03:27 - 14.522 Well, first, I would turn your attention to the reproduced at page 182.

03:27 - 18.225 In that particular section, the County Board of Elections testified

03:27 - 20.227 that there is absolutely no voter

03:27 - 23.230 identifying information on these records whatsoever.

03:27 - 26.667 And so really, there's no privacy or secrecy issues

03:27 - 36.444 here based on the record before this court,

03:27 - 38.546 although that

03:27 - 41.949 I mean, I suppose that

03:27 - 45.486 if you had the official ballots as well,

03:27 - 49.757 they don't have any they don't contain any

03:27 - 52.660 identifying on them, do they?

03:27 - 53.928 They do not.

03:27 - 56.931 So would the same.

03:27 - 59.233 How do you distinguish

03:27 - 01.101 between that,

03:28 - 04.972 between voted ballots and the mail in ballots or.

03:28 - 07.475 Right. And and and even official ballots.

03:28 - 13.481 If you're talking about the secret ballot not applying unless there's a

03:28 - 17.651 unless there's identifying information on a ballot.

03:28 - 20.955 Well, I'm not so sure The secret ballot clause doesn't apply.

03:28 - 23.991 I think the ballots still are secret because there's remains in

03:28 - 27.595 both cases, no voter identifying information on those ballots.

03:28 - 30.531 What you had is in 219,

03:28 - 33.434 when the General Assembly implemented the whole new voting system

03:28 - 37.605 with respect to mail in ballots, a sea change in the way votes were cast.

03:28 - 40.708 So I think one of the questions I think this court and I think Judge Wolf

03:28 - 44.845 noted, is we're treating mail in ballots differently than in-person ballots.

03:28 - 47.815 And I think there is a rational basis for doing so.

03:28 - 51.785 And because they the General Assembly, implemented a brand new process, it's

03:28 - 53.954 only fair that the General Assembly wanted a little bit

03:28 - 00.294 more transparency about how these votes are going to be tabulated and canvass

03:29 - 03.364 the wisdom of really the legislature's

03:29 - 07.501 thought process in terms of treating mail in ballots and voted ballots differently.

03:29 - 09.703 It's not really for this court.

03:29 - 13.440 This court can really only look at what the General Assembly chose to write.

03:29 - 16.844 And here the General Assembly under 1307 of the election

03:29 - 19.847 code shows that make mail in ballots public.

03:29 - 23.918 And that's the text that we're left with.

03:29 - 25.119 And, you know,

03:29 - 28.122 I think even if there is a conflict

03:29 - 31.659 between 308 and 13 07d

03:29 - 34.662 this court's noted you have specific language

03:29 - 39.633 when it comes to ballots under 13 of 70 that declares those ballots to be public.

03:29 - 43.404 And because it's a specific statute, specific language controls over

03:29 - 46.407 the more general language under the rules of statutory construction,

03:29 - 49.610 37 language should prevail.

03:29 - 53.280 The judge noted that Judge Wolf noted in his concurring opinion in private

03:29 - 58.686 verses Erie County that Section 13 of 70 is also the later in time statute.

03:29 - 03.390 And as a result, that's another reason for 13 07d So language

03:30 - 09.029 about public access controlling over that of section three eight

03:30 - 10.831 And I think even

03:30 - 14.301 I would even go further to say if you if you had the argument

03:30 - 19.206 that under section 13, under Section three of eight that voted mail in ballots

03:30 - 23.577 or among the contents of ballot boxes, I would still since respectfully submit

03:30 - 26.981 that honey did not directly address whether there's

03:30 - 31.151 any kind of temporal limitation about when that access ends.

03:30 - 35.255 I think there's been some discussion that potentially it's forever.

03:30 - 38.359 But the unreported decision and still am really did not analyze.

03:30 - 44.031 The entirety of section 308 specifically 308 provides that the contents of ballot

03:30 - 49.637 boxes should not be open to public inspection, quote except as hearing

03:30 - 53.140 within that same section, the statute provides, quote

03:30 - 56.910 all other papers required to be returned by election officers

03:30 - 01.048 to the county board, sealed shall be open to public inspection

03:31 - 04.952 after the county board has finished its computation and canvasing

03:31 - 08.889 voted in-person ballots for among the other papers

03:31 - 12.393 that are required to be returned to county boards sealed.

03:31 - 15.462 And as a result, they should be available for public inspection

03:31 - 19.233 after the county is finished with its computation and canvasing of those votes.

03:31 - 22.603 Of those votes, to the extent that man held.

03:31 - 26.540 Otherwise, we would respectfully submit that that decision should be reversed as

03:31 - 29.543 at that point. Well, the

03:31 - 33.380 so you said the secrecy is being preserved

03:31 - 36.650 because there's no identifying information

03:31 - 40.020 and there's no

03:31 - 42.990 way to figure out who voted

03:31 - 45.159 if that's not the case.

03:31 - 49.763 And I believe the county argues that there

03:31 - 53.434 with other publicly available voter information.

03:31 - 56.870 And if you can compare that to some of the voted ballots, that

03:31 - 02.042 if you could identify by voters, if that were to be the case

03:32 - 06.013 and proven then, which you

03:32 - 08.382 reevaluate your argument.

03:32 - 09.216 Well, I think, one,

03:32 - 12.219 it would need to be proven, and that's not currently the facts before us.

03:32 - 15.122 But I think, secondly, the same would absolutely be true if.

03:32 - 16.590 There was no mail in ballots

03:32 - 20.160 If you had a small precinct that had a very small number of voters,

03:32 - 25.466 you could presumably ascertain how the three people in that precinct voted.

03:32 - 25.999 You know,

03:32 - 28.502 it's true, regardless of whether it's a mail in ballot

03:32 - 30.404 or whether it's an in-person voter ballot.

03:32 - 33.107 And so would would those

03:32 - 36.543 are all of those be available or not available?

03:32 - 39.046 Well, I think you can interpret this two ways, Your Honor.

03:32 - 43.117 I would say under 1307 of the election code, you can, as Judge

03:32 - 46.820 Woolf noted, treat mail in ballots and vote in in-person ballots differently.

03:32 - 49.556 And that's currently where we stand.

03:32 - 53.660 I think you can also look at section three eight of the election code

03:32 - 57.798 a bit more closely to say, yes, it temporarily restricts

03:32 - 01.101 access to all ballots that are within the contents of the ballot

03:33 - 05.272 boxes during voting and until canvasing computation is complete.

03:33 - 09.409 But it doesn't forever bar that well, except that to the extent

03:33 - 13.680 that secrecy in voting must be preserved, I guess we'd have to figure out

03:33 - 18.018 what does the Pennsylvania Constitution mean because that would

03:33 - 22.856 override any of the other provisions in the statutes.

03:33 - 24.124 AM I correct.

03:33 - 27.895 Well, I mean, I think the Pennsylvania Constitution is never self-executing.

03:33 - 32.933 And you know that the election code is a highly remedial statute.

03:33 - 34.234 And so with that in mind,

03:33 - 38.338 it should be construed in favor of public access and construed liberally.

03:33 - 41.475 And that's what we're advocating for here today.

03:33 - 52.352 Thank you.

03:33 - 54.721 Yes, please.

03:33 - 55.923 Afternoon. May I? Please.

03:33 - 00.027 The Court My name is Maggie Shields, and I represent, Allegheny County.

03:34 - 02.329 I will be splitting my time today with Mr.

03:34 - 03.130 Kenneth Jewel,

03:34 - 05.132 who works for the Office of General Counsel,

03:34 - 07.935 and we will each be taking seven and a half minutes

03:34 - 10.771 and first of all, I would tell you that I appreciate

03:34 - 14.174 the invitation to appear before the court on block today.

03:34 - 18.045 And I am here to ask you to rule.

03:34 - 23.150 The Office of Open Records overstepped its authority when it ordered the county

03:34 - 27.554 to produce images that well, to produce images of voted mail in ballots.

03:34 - 32.192 But more importantly, to produce records that are comprehensively governed

03:34 - 33.660 by a superseding law.

03:34 - 38.365 So distribute have control here. Now.

03:34 - 41.468 So it certainly does hang heavily over us today.

03:34 - 43.837 And I was going to get to that point.

03:34 - 47.107 But, Your Honor, that is a big issue.

03:34 - 50.477 I don't believe that it does control because

03:34 - 53.847 the timing of our earlier argument, private argument,

03:34 - 57.317 the request that was made for us to submit briefs on block,

03:34 - 00.888 you know, the case was pending when private was issued.

03:35 - 03.824 And it's the presidential law now.

03:35 - 07.661 And you are here about two months.

03:35 - 11.298 I believe that we are here because we were given an opportunity

03:35 - 16.436 to argue our belief, the county's belief, that it should be revisited.

03:35 - 16.904 And Mr.

03:35 - 21.041 Cheney was given his chance to argue that it should be applied.

03:35 - 24.912 So I don't believe that we would be here before, Your Honor,

03:35 - 29.816 if it was completely finished to settle the issue that it applies.

03:35 - 33.553 I certainly understand that if private were to govern,

03:35 - 37.057 it settles One of the issues here.

03:35 - 41.495 I, along with the Commonwealth, are here to respectfully request

03:35 - 45.532 that it be reconsidered in light of the of the briefing

03:35 - 47.868 and the arguments are in this record

03:35 - 51.772 and that we're not talking about yield to the Supreme Court now to it is.

03:35 - 54.641 But again, this all kind of happened.

03:35 - 55.442 The timeline of

03:35 - 58.745 everything while this case was pending,

03:35 - 02.316 private was decided and then we were asked to come before you to argue.

03:36 - 05.152 And I think that

03:36 - 08.755 the private case lacked something extremely vital,

03:36 - 13.126 the briefing and the argument, and that is an explanation, a discussion

03:36 - 16.229 of what official mail and ballot means and,

03:36 - 20.233 that is what is before, Your Honor, on this record.

03:36 - 23.203 And when we argued before, it was obviously briefer.

03:36 - 24.204 Not everyone was here.

03:36 - 27.207 And I you know, I don't believe it was fully fleshed.

03:36 - 30.377 But the

03:36 - 33.714 the administrators of elections in Allegheny County

03:36 - 37.784 and in the Commonwealth have consistently in this case

03:36 - 41.421 that an official mail in ballot is not a voted ballot.

03:36 - 45.525 So if you look at the record, there's testimony from our director of elections

03:36 - 49.596 that believes an official mail in ballot is not a voter ballot.

03:36 - 53.300 The Commonwealth submitted an amicus brief in this case.

03:36 - 56.403 So setting it aside,

03:36 - 58.638 we have presented

03:36 - 02.042 a fuller record with more arguments,

03:37 - 06.313 and it is my humble belief that upon considering what we have to say

03:37 - 09.649 and what the Commonwealth has to say, both today and in our briefing,

03:37 - 13.053 that this Court may reconsider that decision.

03:37 - 16.456 But I think it does address official absentee

03:37 - 20.560 ballots, it does, and it goes into discussion

03:37 - 26.833 quite on point as to why that would include the completed ballot.

03:37 - 27.401 It does.

03:37 - 31.071 And, you know, we certainly acknowledge that Judge Seiler

03:37 - 34.841 did perform a statutory analysis there.

03:37 - 40.414 However, the record in that case didn't include an alternative,

03:37 - 44.051 which I think is quite clear and contains a lot of common sense.

03:37 - 47.254 And furthermore put before Your Honor, common sense.

03:37 - 53.293 Three What would the value of a blank mail in ballots be to anybody?

03:37 - 54.728 That's a great question.

03:37 - 57.531 So an official ballot

03:37 - 59.566 for an official mail in ballot.

03:37 - 02.769 The value is that every precinct is going to be different.

03:38 - 05.872 There will be, you at certain times, depending on the type

03:38 - 09.176 of election, different people on the ballot.

03:38 - 12.712 And there are plenty of reasons that somebody might want to see

03:38 - 15.749 what the official ballot like before the election.

03:38 - 19.486 Official ballots are also required to be posted up at the polling place

03:38 - 22.155 and when mail in voting,

03:38 - 24.691 why would somebody need thousands of

03:38 - 27.694 official blank mail in ballots?

03:38 - 30.797 I don't know what would be the purpose.

03:38 - 35.235 The well, I mean, you only need one.

03:38 - 39.072 I could see somebody wanting to see the official mail in ballots

03:38 - 40.974 that went out in every precinct.

03:38 - 43.176 So that wouldn't be thousands. It might be hundreds.

03:38 - 46.413 And Allegheny County. It would be dozens in other places.

03:38 - 49.082 I could see the public interest in knowing before

03:38 - 52.953 an election for ballots go out the mail what that's going to look like, especially

03:38 - 58.125 when mail in voting was set up and it had not yet occurred

03:38 - 58.792 there.

03:38 - 02.762 You know, pretty much everything involved in mail in voting is public.

03:39 - 06.967 There's a database that you can access that shows when I requested my ballot,

03:39 - 08.969 when it was mailed to me, when I received it.

03:39 - 13.673 But there's also a need to exercise precaution

03:39 - 17.144 that there's no fraud because the process is drawn out.

03:39 - 18.512 Different people handle it.

03:39 - 22.649 There's room for or inner interception.

03:39 - 28.989 So that just makes sense that they would allow and intend.

03:39 - 31.625 That's what they meant by official ballot.

03:39 - 33.660 It might make sense to some.

03:39 - 37.197 However that basis regarding

03:39 - 41.768 avoiding fraud, it's not really there in the statute every time

03:39 - 46.006 the word official mail in ballot is used it applies to an on voted ballot.

03:39 - 49.309 I don't know that it does apply to a non voter ballot like.

03:39 - 50.610 I'm looking at it.

03:39 - 55.315 It says the actual ballot itself at the top of the official ballot.

03:39 - 58.618 Then underneath it says official mail ballot.

03:39 - 04.558 So but I don't know that the ballot itself changes just because you voted.

03:40 - 09.362 I mean, the General Assembly definitely knows what it official mail ballot is.

03:40 - 12.032 And I think they knew that when they wrote the statute.

03:40 - 12.632 I agree.

03:40 - 18.171 And I think that I mean, the title doesn't change is still an official mail ballot.

03:40 - 19.339 It's an official mail

03:40 - 23.276 ballot that is stamped as such by the elections division

03:40 - 28.348 and then sent out to those who requested it once it's printed way.

03:40 - 31.318 I mean, it's printed at the very top. Correct.

03:40 - 33.019 All the ballots are printed that way.

03:40 - 36.957 And then it's just the individuals that you can vote for in

03:40 - 40.560 different locations changing for different local officials.