00:00 - Good morning, and welcome to our fourth unbound

00:03 - panel of the Superior Court this year.

00:06 - It is my pleasure to introduce the panel to you today.

00:09 - To my immediate right is

00:13 - former President Judge Pernilla from Lehigh County.

00:17 - To my left is Judge Victor

00:19 - Stabile, Cumberland County.

00:22 - To my right again is Judge Alice Tubo from Philadelphia.

00:26 - Good morning.

00:27 - And judge, councilman from Beaver County.

00:30 - Morning, Judge Murray.

00:33 - Good morning.

00:34 - Good morning from Beaver County.

00:35 - Allegheny County.

00:38 - I'm close.

00:38 - Yes, I very close.

00:40 - Judge Megan King from Chester County.

00:43 - Good morning.

00:44 - And Judge Megan Sullivan from Chester County.

00:46 - Good morning.

00:47 - And finally, Judge Beck from Allegheny County.

00:50 - Good morning.

00:51 - Good morning.

00:55 - Yesterday we had the pleasure

00:57 - of having the first all women panel of the Superior Court ever.

01:01 - And it's close to 150 year history.

01:07 - Today,

01:08 - we're allowing Judge Pernilla and Judge

01:11 - to be able to participate just in an interest of diversity.

01:15 - You know,

01:17 - the Superior Court was created

01:18 - in 1895 to assist the Supreme Court.

01:22 - It is one of three appellate courts in this Commonwealth.

01:25 - In addition to the Commonwealth Court and the Supreme Court,

01:29 - we are consisting of 15 commission judges.

01:32 - And currently we have three senior judges.

01:36 - I want to thank PCN for being able to record this.

01:41 - it helps us to present

01:44 - what we do to everyone who's watching.

01:47 - And if you can't sleep, it's a wonderful thing to watch.

01:52 - We do so so that

01:54 - the citizens in Pennsylvania can see us in action and see what we do,

01:58 - and hopefully see how deliberative we are in terms of what we do with our court.

02:06 - I want to thank our commentators today,

02:09 - Dean Robichaud of Temple University,

02:11 - along with Professor Jules Epstein and Professor Mary Levy,

02:14 - who will be doing the commenting on our cases later on today.

02:19 - I want to thank our staff.

02:21 - I know our Brittany cherry bean color is here.

02:24 - Peter Johnson is making sure that we have plenty of it.

02:28 - Our security staff, I see, Sean Brennan,

02:34 - Chris Culver,

02:36 - Brian Leventhal, and Mark and Rich Ruffalo.

02:41 - I always call you Mark, and I'm so sorry, but it's a great comparison.

02:47 - I want to thank the police officers that are here today.

02:50 - We always appreciate security.

02:52 - It's a shame that we have to have them, but I appreciate it.

02:56 - Finally, I want to thank the Supreme Court for allowing us

02:58 - to use this beautiful courtroom.

03:00 - Our superior courtroom cannot hold nine people on our bench

03:05 - and it's wonderful that they've made this available to us.

03:10 - sometimes, even though it's sometimes 80 degrees in here,

03:13 - I which I never thought would happen on November 6th and November 7th.

03:17 - We still are very grateful to have the courtroom to be used

03:21 - to the business at hand.

03:26 - later I will introduce Judge Maria McLaughlin.

03:29 - Judge King is here as a recusal judge only for the first two cases.

03:33 - And we thank you.

03:34 - Please turn off your cell phones, or at least put them on.

03:38 - Silence.

03:40 - We will ask that you state your name

03:42 - and the party that you represent at the beginning of your oral argument.

03:45 - If you have co-counsel, please introduce them to us as well.

03:49 - And if you are going to share any time, please let us know how you'd like the time

03:52 - to be divided.

03:54 - We have reviewed your briefs.

03:56 - We are very familiar with the facts of your case.

03:59 - So we ask that you focus on the issue or issues that you would

04:01 - like us to consider.

04:03 - Remember that we are an error correcting court.

04:06 - It's helpful to us if you can point out where you believe

04:09 - that the trial court erred, and why that error is of such

04:13 - a magnitude, that the relief that you are requesting is warranted.

04:16 - And please don't forget to ask for the relief that you want.

04:22 - If there is more than one appellant or pleased to sign in advance

04:25 - how you want to allocate your time, and let us know that again

04:29 - if you want.

04:30 - Appellants, if you wish to reserve time for rebuttal,

04:33 - please let us know in advance how much time you wish to reserve.

04:37 - Hello, my name is Rachel Bouchet and I'm the dean

04:40 - and a professor of law at Temple University Beasley School of Law. I'm

04:44 - joined today by my colleagues, Professor Jules Epstein and Professor Mary Levy.

04:51 - Welcome to the

04:51 - Pennsylvania Superior Court en banc session.

04:54 - The Superior Court was established in 1895 and consists of 15 judges.

05:00 - The Superior Court hears civil criminal family cases

05:04 - that are appealed from our state courts in each county, where trials

05:08 - take place from the 67 counties in Pennsylvania.

05:13 - The Superior Court receives about 6000 appeals every year

05:17 - and writes about 3000 opinions a year.

05:21 - The Superior Court is charged with reviewing cases

05:24 - that have taken place in our county courts.

05:27 - The court determines whether parties have received a trial that is fair,

05:33 - and that complies with the rules of law that have been

05:35 - developed over time.

05:38 - On behalf of our colleagues.

05:40 - We want to acknowledge President Judge Lazarus and thank her

05:43 - for inviting the Temple University Beasley School of Law

05:47 - to participate in this event session.

05:50 - We at Temple Law School are so proud

05:53 - of our historic relationship with this honorable court,

05:57 - and we take great pride in training the lawyers of this Commonwealth

06:01 - and providing the nation's best advocacy education.

06:05 - With that, I will turn it over to my colleague, Professor Mary Levy.

06:10 - Good morning.

06:11 - My name is Mary Levy, and I am a professor

06:14 - at Temple University Beasley School of Law, where I teach a variety

06:18 - of courses, mainly in the areas of civil procedure and appellate advocacy.

06:23 - I also supervise the law school's Federal Appellate Litigation Clinic.

06:29 - I am delighted to be speaking with you today

06:31 - about the Pennsylvania Superior Court, which in many ways

06:35 - is the workhorse of our appellate court system.

06:40 - First, it is important to understand that both civil

06:44 - and criminal cases begin in the trial courts,

06:47 - which are organized by county and known

06:50 - as the Court of Common Pleas.

06:54 - Once there is a final decision in the case at the trial court level,

06:59 - which usually means that all claims have been decided as to all parties,

07:06 - the losing party has a right

07:08 - to take an appeal from that decision to the appellate court.

07:13 - In Pennsylvania, we have two intermediate appellate courts,

07:17 - the Pennsylvania Commonwealth Court and the Pennsylvania Superior Court.

07:23 - The Commonwealth Court is a specialized appellate court,

07:27 - and it has limited jurisdiction to hear appeals involving

07:31 - governmental agencies and nonprofit

07:34 - organizations, among others.

07:38 - The Superior Court, on the other hand,

07:41 - hears the vast majority of appeals

07:43 - in both civil and criminal cases.

07:47 - The court is comprised of 15 judges,

07:50 - but most appeals are decided by a panel of three judges.

07:55 - Each state also has its own highest

07:59 - Supreme Court in Pennsylvania.

08:03 - Our highest court is the Pennsylvania Supreme Court.

08:07 - Importantly, however, there is no direct right of appeal

08:11 - to the Pennsylvania Supreme Court except in

08:14 - very limited circumstances.

08:17 - Practically speaking, that means that the Superior Court usually

08:22 - has the last word on the matter, and its decision becomes binding on the parties.

08:28 - And if published, that decision also becomes binding on all lower courts

08:34 - who have to resolve similar issues in future cases.

08:40 - In order to

08:40 - decide the appeal, the Superior Court requires the parties

08:45 - to submit their arguments and the law on which they rely.

08:49 - In a written document known as a legal brief,

08:53 - briefs are often anything but brief,

08:57 - as the parties are required to fully discuss the facts of their case,

09:02 - the governing law, and the reasons why they should prevail.

09:06 - Importantly, intermediate

09:08 - appellate courts are error correcting courts.

09:12 - That means that the Superior Court is only concerned

09:16 - with whether the trial court committed some error,

09:20 - and the lower court proceedings that caused harm to the losing party.

09:26 - The losing party, or the person who files an appeal

09:29 - in the Superior Court is known as the appellant, and the party

09:34 - who prevailed in the trial court is known as the Appellate

09:39 - because

09:40 - the appellant is the party bringing the appeal,

09:43 - he or she has the burden of establishing that the trial court committed some error

09:49 - that caused him or her harm.

09:53 - In addition to considering the parties briefs,

09:56 - the court will also hear oral argument in many cases

10:01 - which aids the court in resolving the appeal

10:04 - because the judges can ask the attorneys questions that they have about the parties

10:08 - arguments, the underlying facts,

10:11 - or the law that governs the dispute.

10:15 - As I mentioned, most appeals

10:17 - are resolved by a panel of three judges.

10:20 - However, when the court determines

10:23 - that an appeal presents an issue of significant importance

10:28 - or concerns a complex issue for which there is some conflict

10:32 - or confusion in the law, the full Superior Court

10:36 - may decide to hear the case rather than a panel of three judges.

10:42 - When the full court hears the case

10:44 - that is known as en banc review,

10:48 - the court can decide to resolve the case

10:50 - on bond either at the outset of the appeal,

10:54 - or it can decide to reconsider the decision

10:57 - of a panel of three Superior Court judges

11:01 - by rehearing the case on bond.

11:04 - Today, you have the pleasure of watching several on banc

11:09 - oral arguments of our Pennsylvania Superior Court.

11:14 - Today, the court is considering

11:16 - the case of Poteet versus state.

11:20 - Appellant Antoine Petite

11:22 - hired Appellee's attorneys Gary Mystique and Nino Tanabe,

11:27 - to represent him in a criminal trial,

11:30 - where he faced multiple charges for possession with intent to deliver.

11:35 - Mr. petite signed a written retainer agreement

11:38 - with those attorneys at the outset of the representation.

11:43 - He was eventually found guilty at his criminal trial

11:46 - and received a sentence of 5 to 10 years.

11:50 - He then sought relief from his conviction, arguing that he had received

11:55 - ineffective assistance from his attorneys during the criminal trial.

12:00 - That argument was successful, and in July 2019,

12:04 - the court found that the attorneys had been ineffective

12:08 - in their legal representation and granted Mr.

12:11 - Poteet a new trial

12:13 - more than three years later, in September of 2022.

12:18 - Mr. Petit then filed a civil action against those attorneys,

12:23 - arguing that they had breached the written retainer agreement

12:27 - when they failed to perform to the standards of competence

12:30 - and diligence required by the practice of law.

12:35 - The attorneys sought dismissal of Mr.

12:37 - Petites lawsuit, arguing that his breach of contract claim was insufficient.

12:43 - The attorneys argued that Mr.

12:45 - Petitos claim was really a claim for negligence, not breach of contract,

12:51 - and that the statute of limitations barred the claim.

12:55 - The trial court agreed with the attorneys

12:57 - and dismissed the complaint with prejudice, and Mr.

13:00 - Petit then filed this appeal

13:04 - as a threshold matter.

13:06 - A plaintiff is required to bring his claim

13:09 - within a specified period of time, and if he fails to do so,

13:14 - that claim will be barred and the lawsuit will not go forward.

13:19 - Relevant here in Pennsylvania,

13:22 - the statute of limitations on a breach of contract claim is four years,

13:27 - while the Statute of limitations on a negligence

13:30 - or a malpractice claim, which is a tort claim, is two years.

13:37 - Mr. Petitos argument

13:39 - is that his lawsuit was based on a breach of contract,

13:42 - and therefore the lawsuit was timely filed

13:46 - within that four year statute of limitations period.

13:50 - The attorneys, on the other hand,

13:52 - argued successfully in the trial court that Mr.

13:56 - Petty's claim the cost is a breach of contract action

14:01 - was in actuality a claim that the attorneys were negligent

14:05 - in their representation of him, which is a tort that is barred

14:09 - because it wasn't timely filed within the two year period.

14:14 - In making that argument, the attorneys relied on a legal principle

14:18 - known as the gist of the action doctrine.

14:22 - The purpose of the doctrine is to allow the court to properly classify

14:28 - the type of lawsuit brought by the plaintiff.

14:32 - The court will carefully examine

14:35 - the allegations of plaintiff's complaint

14:38 - to determine the true nature

14:41 - or the gist of his action.

14:44 - That is, whether the heart of the lawsuit is based in negligence

14:49 - and must be brought within a two year period,

14:52 - or instead, whether the heart or the gist of the lawsuit concerns

14:57 - a breach of contract which enjoys a longer

15:00 - four year statute of limitations period.

15:05 - In this appeal, the court

15:07 - hearing the case en banc must determine whether the trial court aired

15:13 - in applying the gist of the action doctrine and dismissing Mr.

15:17 - Petitos complaint by reasoning that the gist or the heart of his lawsuit

15:22 - was a tort claim for malpractice and was therefore untimely.

15:27 - Had the trial court found that the gist

15:30 - or the heart of his lawsuit was instead a breach of contract.

15:34 - Mr. Petty's claims would have been timely

15:37 - and his lawsuit would have been allowed to proceed.

15:41 - Thank you, Your Honor.

15:43 - May it please the court.

15:44 - My name is Ken Albert and I represent appellant Antoine Petite.

15:47 - Do we have all the other counsel that will be arguing

15:52 - on behalf of, Antoine Petite?

15:54 - Yes, ma'am.

15:57 - with the court's permission,

16:00 - please be seated.

16:01 - Thank you.

16:11 - With the court's permission, Your honor, I'd like to reserve

16:14 - two minutes for rebuttal. Sure.

16:16 - Thank you.

16:20 - A soon to be attorney and client

16:22 - sit down at the attorneys desk to sign a retainer agreement.

16:27 - The attorney says to the client, before you sign, I want to explain

16:30 - to you exactly what legal duties this contract imposes on

16:34 - you and on me.

16:37 - The attorney says that the client, when you sign this contract,

16:41 - you are agreeing to pay me exactly what we've agreed to in this contract.

16:47 - If you do not pay me, you will be breaching this contract.

16:51 - I can sue you for breach of contract and I'll have four years to do it.

16:55 - Do you understand?

16:57 - The client says yes.

16:59 - Picks up a pen.

17:00 - Starts getting ready to sign.

17:02 - The attorney says, wait.

17:04 - I want to explain to you exactly what duties this contract imposes on me.

17:10 - When I sign this kind.

17:13 - I am agreeing to provide you with legal services.

17:17 - I am not agreeing to provide you with competent legal services.

17:22 - Do you understand that?

17:24 - The client says no.

17:28 - And the lawyer says. Let me further explain.

17:31 - When I sign this contract, I'm agreeing to provide you

17:35 - with legal services in connection with your fill in the blank.

17:40 - But what this contract does

17:42 - not do is say anything about the quality of those services.

17:45 - I'm agreeing to provide you.

17:48 - When I sign this contract, I will provide you with legal services.

17:53 - But if I make mistakes and they hurt you and your mistakes

17:58 - that other attorneys in the profession would not have made.

18:02 - You cannot sue me for breaching this contract

18:05 - because this contract only requires that I show up.

18:09 - It does not require that I show up and perform up to standard.

18:15 - Do you understand that?

18:18 - And the client

18:18 - says, no, I don't understand that.

18:22 - I'm agreeing to pay you $750 an hour not to make mistakes,

18:28 - but to do the job right.

18:31 - And if you can sue me for not paying that 750.

18:35 - But I can't sue you for not doing your job right.

18:39 - For breach of this contract.

18:41 - Why should I even sign the thing?

18:44 - And the lawyer says.

18:46 - Because if you don't, I'm not going to represent you.

18:49 - And if you ask any other lawyer, they're going to tell you the same thing.

18:54 - Sir, can you talk a little bit about, whether the gist of the action

18:57 - doctrine precludes a breach of contract claim,

19:02 - converting a breach of contract claim into a tort, or

19:04 - if it's only vice versa.

19:08 - So, based on the specified issue, the question,

19:11 - the question you're asking is, first of all, does the trial court

19:14 - have authority to convert one claim to another?

19:17 - And the answer is in my opinion,

19:20 - it is not precluded. Yes.

19:22 - A trial court can convert it either way,

19:25 - but the reality is that you only see this

19:29 - most times when, someone is attempting

19:32 - to bring a negligence claim in lieu of a breach of contract claim.

19:36 - But what cases out there that has said that

19:40 - a trial court can extinguish a contractual right,

19:45 - because it could be a tort

19:46 - claim, has any, precedential opinion held that just to the action

19:52 - goes both ways that you can extinguish what's written into a contract.

19:58 - Your Honor, my response is that I have done

20:01 - the research based on whether or not it only goes one way.

20:04 - If you do the research, you will find thousands of cases

20:08 - that say it goes from contract to tort.

20:11 - You're not allowed, but you will find cases.

20:13 - And in my mind, intellectually honest, that of course it can go the other way.

20:19 - But yeah, go ahead.

20:21 - My answer to your question about whether the trial court

20:24 - has the authority in general, to convert any claim from one to another,

20:29 - I say the answer is yes,

20:31 - it can, but only if the claim pled is pled improperly.

20:36 - It can then have the power to convert it to what legally would be

20:40 - a properly pled claim, and then take action accordingly.

20:45 - And I would I would direct the court to its own opinion.

20:48 - Just a few months ago on bonk in Erie Insurance exchange, the United Services,

20:53 - which basically says what I just said, it has the authority

20:57 - to convert one way or the other, but only if I have a written contract.

21:02 - Right. You and I have a written contract.

21:05 - And what you're saying is that a provision in a contract suddenly becomes

21:10 - unenforceable and is extinguished

21:14 - because it is the duty is the same as in a in a clause

21:20 - which is relatively significant, especially in your case

21:23 - where we're talking about a statute of limitations.

21:26 - Your honor, I'm actually agreeing with you 100%.

21:28 - And you but you actually, I don't want to say beg the question

21:31 - or put the cart in front of the horse, but in your question is the

21:36 - the actual question that needs to be answered.

21:38 - Your question was based on the premise

21:40 - that they extinguished a provision that was in the contract.

21:44 - That is the question that's here.

21:46 - Is that provision in the contract?

21:49 - I say that it is opposing counsel is not Gorski.

21:53 - Gorski.

21:54 - And I'm blanking on the other case, clearly implies

21:58 - the obligation on a lawyer to provide services.

22:02 - So I'm agreeing with you on that.

22:04 - And I'm agreeing with you, Your Honor.

22:06 - And in that situation, no, there was no authority to convert the

22:10 - the claim, but only because,

22:13 - as I view it, it was properly pled

22:17 - because it

22:18 - included, based on Bailey and Gorski, the provision

22:22 - that every attorney implicitly promises to provide competent services.

22:27 - Counsel, can I pick up on that for a moment?

22:30 - I think there's a point before we reach what Judge Dibble was asking.

22:34 - When you plead both a contract and a tort action.

22:39 - the gist of the action doctrine

22:41 - requires us to examine the duty

22:44 - that's being breached, either by a standard of care

22:47 - or by virtue of the agreement to decide whether it's a contractor tort case.

22:52 - In this case, you're claiming that there is an implied obligation to provide

22:57 - services within the professional standard of care, typically a standard,

23:02 - but your complaint alleges the specific duty that was breached

23:07 - was fair to file a rule 600 motion

23:10 - and to request credit for time served.

23:13 - Those are the breaches that you allege.

23:15 - Where in the retention agreement,

23:18 - does it address council's obligation to do those two things?

23:24 - The retention agreement

23:26 - obviously does not specifically contain

23:29 - anything regarding post-conviction

23:32 - matters if we got that specific, but those are the duties you breach.

23:35 - The reason why I ask it is that if we're going to erase

23:40 - the gist of the action doctrine based upon

23:43 - an implied obligation in every contract,

23:47 - then we basically eviscerate what the gist of the actor

23:50 - doctrine attempts to do, and that is to separate

23:54 - duties imposed as social duty, say, your tort obligation

23:58 - from those that are expressly committed to under contract.

24:01 - So that's where I'm having a problem with your case.

24:05 - I don't see those specific duties that you claim here

24:10 - as being contractual

24:13 - because they're not mentioned.

24:15 - Let me just add, though, one other fact is that the complaint also includes

24:20 - the fact that a the Pcori court found counsel to be ineffective

24:26 - for failing to do to do the rule 600 and s requested serve.

24:31 - Sure.

24:31 - So given how our standard review with pose

24:34 - it is fear in my view, it is fair to assume the fact

24:40 - that a pcori court found counsel to be ineffective,

24:43 - that counsel has breached the duty of meeting professional conduct.

24:47 - Well, I don't know if the duty to the same arb

24:50 - between PCI and a civil action, but,

24:55 - let me ask you, you know, finally,

24:59 - the damages that you claim.

25:01 - What damages are you seeking in this case for contract and tort?

25:05 - Because your remedies are different in both cases.

25:08 - So, first of all, Your Honor, we're not seeking damages in contract.

25:12 - And to the only claim that was brought was a contract claim.

25:15 - All right.

25:15 - So what are your contract damages that you're seeking?

25:18 - And, your Honor, there is a question,

25:21 - regarding what the extent of the damages would be.

25:24 - Obviously, there's case law, and it starts with Bailey.

25:27 - That discusses whether those damages would be limited anyway.

25:30 - But let me tell you the reason why I'm asking the question.

25:33 - I'm trying to see if we can gain insight as to

25:35 - whether this is contract or tort based upon the damages you claim,

25:40 - if the damages you claim, or expectation damages by contract,

25:44 - meaning you know what you paid the council you breached.

25:47 - Therefore I get my money back or they're tort damages

25:50 - where you have consequential damages that arise.

25:55 - Maybe you personally injured, you were thrown in jail or whatever else.

25:57 - I'm wondering if the nature of the damages that you claim can give us insight as to

26:03 - whether or not the gist of the action doctrine applies or not,

26:06 - because if you're damages only relate to contract,

26:09 - and that would mitigate against a tort action and vice versa.

26:14 - Do you understand what I'm trying to say?

26:15 - I do, but and I think at a, at a, at a basic level,

26:19 - the, the fact that we're at least claiming contract

26:22 - damages is all that is needed, really do address that

26:27 - because there is no toward claim now the whether or not

26:31 - at this stage, there can be law that will develop

26:35 - that will allow us to include additional types of damage

26:38 - in a contract claim in a legal malpractice setting.

26:42 - is is is open for, for future litigation.

26:46 - I can tell you, Mister Poteet is looking for more than just

26:49 - the 7500 bucks he paid for the two of the lawyers.

26:53 - he he is looking, for many other types of damages.

26:57 - Whether or not he's entitled to them,

26:59 - is another story and will be left for another day.

27:03 - But to the extent that those damages

27:05 - are the kind that you would normally see with tort,

27:08 - I don't see how that necessarily helps resolve the case

27:11 - currently because we are not there is no.

27:15 - How do you address the case law statements that the

27:19 - counsel performing below the

27:21 - standard of care or standard of competence for counsel as a tort standard,

27:26 - not a contractual standard?

27:30 - I say that Bailey

27:34 - and Gorski say it's both.

27:38 - Now, the question isn't whether the problem with Bruno,

27:41 - or at least the way opposing counsel was using attempting to use Bruno.

27:45 - Bruno does not say that you are not allowed to read.

27:51 - It is into a contract,

27:54 - a protection to the public

27:57 - that already exists and can be pursued and vindicated through the tort law.

28:03 - It does not say that.

28:04 - It doesn't say anything about what can and cannot be read

28:07 - implicitly into a contract to protect the public.

28:11 - The only thing Bruno says is if something is not in the contract,

28:15 - you can't sue on the contract if that's what you're claiming was breached.

28:19 - Let me ask you about the effect of your argument.

28:22 - If we accept what you're saying, that your breach of contract action

28:25 - can be sustained based upon the implied obligation to provide

28:29 - services within the standard of care for an attorney.

28:32 - Then can you envision any tort claim

28:36 - not also being a contract claim

28:38 - and being dismissed because it's really a contract action,

28:42 - and I envision any tort claim of legal

28:46 - malpractice claim in legal malpractice because you have a contractual action.

28:50 - I mean, you have a retention agreement.

28:52 - What legal tort malpractice

28:55 - claim could ever survive the gist of the action doctrine?

28:58 - If we accept your implied obligation as being one only for contract.

29:02 - Okay.

29:03 - Your honor.

29:07 - Bruno, if

29:09 - Bruno applies, Bruno says you have to pick one.

29:13 - It's a binary choice, but Bruno is based on the ability

29:17 - to look at a contract and look at the tort law and actually be able to ascertain

29:23 - which one as opposed to the other, provided to duty.

29:27 - Bruno is silent on what you do when,

29:31 - as a matter of law, it comes from both and nothing in.

29:35 - Bruno says it can't come from both.

29:37 - All Bruno says is if it comes from contract, you got to do the contract.

29:43 - And it sounds like maybe my time is coming up.

29:46 - It is.

29:46 - I would with May I have 30 more seconds, please?

29:49 - Your honor, another question.

29:51 - we have a question for you.

29:52 - Okay.

29:53 - if we, if we agree with your argument that despite the fact that you're talking

29:58 - about standard of care and talking about professional negligence

30:02 - in the context of a breach of contract action,

30:06 - are we not opening up the door to destroy a statute of limitations

30:11 - argument in a medical professional action?

30:15 - Because why would we treat doctors differently than lawyers?

30:19 - So if two years go by and there's no action filed,

30:23 - but There was an agreement signed regarding

30:26 - an operation, regarding a medical procedure.

30:29 - Now they come in with a breach of contract action.

30:31 - So aren't

30:32 - we deciding a much, much broader issue than what you're trying to limit us to?

30:37 - Well, Your Honor, I recognize the consolidated case.

30:41 - And, my response, if you'll give me one second, is.

30:48 - Yes. If

30:51 - no, the question depends.

30:54 - You have to pick one or the other.

30:55 - I'm going to, but it is either or. Yes.

30:58 - If there is a contract

31:01 - between the physician and the patient, the analysis has to be the same.

31:06 - If there is not a contract between the physician and the patient,

31:10 - the analysis does not have to be the same, because the gist of the action doctrine

31:14 - and Bruno are completely irrelevant, because there is no choice to be made.

31:20 - But yes, I would say this if there's a contract

31:23 - between any professional and

31:27 - the client, the patient, the,

31:31 - the whatever.

31:33 - Yes. In that situation,

31:36 - the implied duty to provide

31:38 - the services correctly is in the contract.

31:42 - And under Bailey, it's a four year statute, not a two year statute.

31:48 - And I cite you to McShay, which I quote and rely on heavily.

31:53 - Obviously, in my brief for Mcshane's description of what Bailey stands for,

31:58 - McShay describes Bailey not in specific

32:02 - terms of well.

32:05 - McShay cites Bailey for the proposition that professional services

32:10 - generally can be read into contracts,

32:13 - and then it cites to Bailey, which it

32:17 - then identifies as relating only to legal malpractice.

32:21 - But the Supreme Court in Bailey, in my opinion, telegraphed where it's

32:25 - going to go on that issue, which is

32:29 - Bailey is broader than just legal malpractice.

32:32 - The Bailey rule applies whenever there's

32:35 - a professional relationship requiring professional skills.

32:39 - So let me just ask you a practical question, though.

32:42 - If a if there is a tort claim

32:46 - for professional negligence and a contract

32:49 - and the gist of the action,

32:52 - eliminate the tort claim because you're saying it goes both ways.

32:57 - What about insurance?

32:58 - Because a, a defendant, a professional will not have insurance

33:03 - for a breach of contract action.

33:06 - So doesn't that argument

33:08 - that the gist of the action should go both ways and should be able to extinguish

33:15 - a, tort claim when there's both

33:18 - that's going to leave plaintiffs with an uninsured defendant runner?

33:22 - Okay.

33:22 - It's an excellent question, and I want to

33:26 - the answer is really

33:28 - I believe that it does only go one way.

33:31 - I also believe that the opinion in

33:34 - by the panel, opinion in the underlying case

33:38 - of which you are familiar, also suggests it only goes one way.

33:43 - in my brief, I pick up on that and I can

33:46 - and I say all kinds of material that suggests it only goes one way.

33:51 - However, I believe intellectually it can go both ways.

33:56 - But I also

33:57 - believe, as I also included in my brief, that that is not something

34:02 - that has to be answered in Potts case,

34:04 - because it only involves a breach of contract claim.

34:09 - But, no, I do think it's important for us

34:11 - to understand the ramifications of our decision in this.

34:14 - Absolutely. Your honor.

34:16 - Thank you, thank you.

34:17 - You have your rebuttal.

34:23 - Thank you.

34:24 - Honor.

34:24 - And I just want to clarify for the Swat, folks,

34:28 - we have two, two, 15 minute periods.

34:31 - When do we just want to make sure.

34:32 - Thank you very much.

34:35 - starting off

34:37 - more or less where we left off, and I didn't catch your name.

34:41 - I'm sorry. I'm sorry.

34:41 - My apologies. Josh burn for the appellate.

34:45 - You know, sonari, my apologies, Your Honor.

34:47 - May it please the court starting off where we left off.

34:51 - What the appellant is asking this court to do is to eviscerate Bruno.

34:56 - The real question here is, does

34:59 - the gist of the action doctrine preclude legal malpractice claims?

35:02 - Sounding and contracting.

35:03 - The gist of the action is a generalized duty owed by all attorneys

35:07 - representing clients, and therefore sounds and professional malpractice.

35:11 - And my apologies, Madam Chief Judge,

35:15 - I am going to take about 8 or 9 minutes and then, codefendant for Mr.

35:19 - Harris deck is going to take over. Right. Okay.

35:22 - Stated differently, is there a reason not to apply

35:25 - the gist of the action doctrine to legal malpractice cases?

35:28 - Plaintiff's argument is based on Bailey

35:32 - and Gorski cases, where the gist of the action

35:36 - doctrine was not argued or reviewed

35:39 - in the seminal Pennsylvania doctrine, as you all know, is the Bruno case.

35:43 - For fans of the movie Encanto.

35:45 - Today we talk about Bruno.

35:48 - Bruno applies in both directions to instruct the court to determine

35:53 - what the gist of the action is for a breach of contract claim.

35:58 - As the Bruno Court makes clear, the claim must be based upon a specific promise.

36:04 - You've misstated the holding of Bruno.

36:06 - So you said Bruno found or held.

36:10 - It goes both ways.

36:11 - Bruno involved a contract

36:14 - and a negligence claim, and the question was whether or not the insurance

36:18 - policy precluded the I'm sorry, precluded the tort claim.

36:22 - The the Supreme Court in that case did not say the contract

36:27 - claim is extinguish I it's an important I know that you take like I

36:32 - no which may be persuasive but that was not the holding of Bruno.

36:37 - The Bruno said that if you have a contract claim in a tort claim,

36:41 - the tort can claim, can extinguish and judge.

36:44 - Go with all my great due respect for you, I believe that your opinion

36:50 - is based upon a relatively cribbed reading of Bruno,

36:54 - and if you look at the language in Bruno and it's I agree with you

36:58 - that the language can be interpreted to support your position.

37:01 - I agree with that.

37:02 - But the actual holding at the end of the day and the facts and

37:07 - and the cases, the history of this doctrine,

37:10 - did not hold that the gist of the action can extinguish a contract.

37:15 - That's simply not true, George, and I apologize for being that blunt about it.

37:20 - I'll let you, you know, go ahead.

37:21 - But if you do look carefully at Bruno, you'll note

37:24 - that the very first case that it relies upon is the Zell case.

37:28 - That is a presidential case branded.

37:30 - It is from 1830, but it explicitly says in there that a contract existed.

37:37 - But, quote,

37:38 - the true subject matter of the allegations in the complaint

37:42 - did not relate to defendant's failure to perform his contractual obligations,

37:46 - but rather were allegations that he had performed those obligations

37:50 - in a negligent or careless manner.

37:54 - Also, the

37:56 - Bruno court cited to the Hartleys ville decision,

38:00 - which stated.

38:02 - Consequently, with this decision referring back to Zell,

38:06 - our court endorsed the principle that merely because a cause of action

38:09 - between two parties to a contract is based on the actions of the defendants

38:13 - undertaken while performing his contractual duties, this fact alone

38:17 - does not automatically characterize the action as one for breach of contract.

38:23 - To the contrary, Zell established that the nature of the duty breach, as alleged

38:28 - in the plaintiff's pleadings, is determinative of the gist of the action.

38:32 - This becomes very important when you look at the actual language of Bailey,

38:38 - and that is what I would like all of the judges here

38:41 - to look at, to look at the language about breach of contract

38:45 - that is contained in Bailey, which is very, very narrow.

38:50 - Let me ask you this.

38:51 - What is a contract for the provision of legal services?

38:54 - If it's not a contract for the provision of competent legal services?

38:57 - A there is a provision that is read into all contracts.

39:03 - And that is what Bailey does say, that there will be competent legal services.

39:07 - That does not mean that that is where that duty arises from.

39:11 - And that is the fundamental distinction and the important distinction

39:15 - for this argument, the duty to provide the competent

39:20 - legal services is read into the contract, but does not arise from the contract.

39:25 - The duty arises from the attorney client relationship,

39:29 - and that is historically what our Pennsylvania courts have held.

39:34 - There was a long line of legal malpractice cases that preceded Bailey,

39:38 - all of which essentially applied

39:41 - the gist of the action

39:44 - without stating that it was the gist of the action.

39:47 - Those are stormy Golden, where the court said in 1988

39:52 - a breach of contract count does not allege that the appellate

39:55 - failed to follow specific instructions, nor

39:58 - that the breach of a specific provision of the contract occurred.

40:02 - Duke v Anderson, 1980.

40:05 - The client has a choice either to sue the attorney in assumption

40:08 - on the theory that the attorney, by failing to follow

40:11 - specific instructions, committed a breach of contract, or to sue

40:14 - the attorney and trespass on the theory that the attorney failed

40:17 - to exercise the standard of care that he was obliged to exercise.

40:21 - The obligation.

40:22 - Obligation to provide legal services only arises because of a contract.

40:26 - You don't owe me a duty to provide me legal services

40:30 - unless and until we contract for that service.

40:33 - That is a interesting argument, but also fundamentally wrong.

40:38 - And that is plaintiff's fundamental error.

40:41 - The duty arises in an attorney client relationship

40:45 - due to the existence of that relationship.

40:47 - That relationship is not necessarily based on contract.

40:51 - If we look at Atkinson v Vho, which is cited in our memorandum,

40:55 - our court has long held that you can have an attorney

40:58 - client relationship, even if there is no contract.

41:02 - You know, let me test that proposition for a moment.

41:05 - This case, the breach of contract claim, is premised upon

41:08 - an implied duty to provide competent professional services.

41:12 - And you're saying that is not a duty that can be recognized in contract here?

41:17 - It's really a tort claim, but yet in every contract

41:22 - the law implies, with some rare exceptions,

41:25 - that are excluded by statute or otherwise, the law applies in every contract.

41:30 - A duty of fair dealing.

41:33 - If I'm contracting with you

41:36 - and you don't deal with me, honestly, I can sue you for breach of contract

41:40 - on the implied breach of the implied obligation

41:44 - of fair dealing, that that is a separate cause of action.

41:48 - That is not so.

41:49 - No, but my point is,

41:50 - it's an implied obligation that will sustain a breach of contract action.

41:55 - Why won't this implied obligation sustain a contract action?

42:00 - There both implied the breach

42:02 - of the duty of fair

42:05 - dealing is a separate cause of action based on contract.

42:10 - Based on contract.

42:12 - Here, the duty is not based on the contract.

42:15 - The duty of faith and fair is only in the contract.

42:20 - Then we hear the proposition that the implied obligation

42:24 - to provide competent services is not a duty to be found in.

42:27 - This contract is not a duty that it's found

42:30 - that is not that is not fair to the contract.

42:32 - And that's where he gets Bailey incorrect.

42:36 - I think you're you're you're associate has time now if okay.

42:41 - So I want you let me just very quickly go ahead and finish.

42:44 - Yeah.

42:44 - Let me just very quickly note that it is important to look at Bailey,

42:48 - to look both at the language that deals with a breach of contract.

42:53 - During a discussion of the breach of contract claims in Bailey,

42:55 - the court stated an attorney who agrees for a fee to represent a client

42:58 - is by implication, agreeing to provide the client for professional services.

43:02 - This dicta, even if accepted as a holding of Bailey, states nothing more,

43:07 - and that in performing the duties set forth

43:10 - in the contract, the attorney must do so competently.

43:13 - However, that language does not begin to suggest that a breach of contract claim,

43:17 - as opposed to a negligence claim, arises whenever that duty is breached,

43:23 - and I would note very nuance if you look at justice of policy.

43:29 - Footnote four.

43:30 - In his concurrence in Bailey, you will note

43:34 - that he very specifically says, because in my view,

43:38 - the action was not timely commence regardless of which period applies.

43:41 - I do not explore the differences in practice and pleading that would attend

43:46 - the different theories of recovery.

43:47 - I would, however, note our prior holdings

43:51 - that the limitation period is imposed

43:54 - on the cause of action, not on the form of the action,

43:59 - and that the two year limitation

44:00 - period for personal injuries cannot be avoided by the expedient

44:03 - of pleading in the contract.

44:05 - The rest of that footnote makes very clear

44:08 - that the issues of breach of contract were not separately briefed for Bailey.

44:13 - Bailey does not substantively address breach of contract issues.

44:17 - Please read that Gorski is wrong, but what about McShay

44:22 - with the Supreme Court case in, 2010,

44:27 - in the Supreme Court, we,

44:30 - reaffirm the principle of the an implicit,

44:33 - implicit in a contract is the requirement

44:39 - of providing the services, at a, and what I'm saying is that

44:44 - that is what Bailey says, and that can be read in conjunction

44:49 - with Bruno to establish the idea that the duty is read

44:55 - into the contract to perform that contract in a workmanlike, professional manner.

45:00 - However, the duty does not arise from the contract.

45:04 - The duty arises from the attorney client relationship,

45:08 - which can exist even in the absence of a contract.

45:13 - No thank you.

45:22 - Thank you, Your Honor,

45:22 - and good morning, Jim Schuh, on behalf of Pauli Gary at stake,

45:27 - I want to pick up, or at least start

45:29 - by picking up chronologically where Mr.

45:32 - Bern left off, because,

45:35 - we're talking a lot about Bailey and Gorski.

45:38 - And then a couple of years later, after Gorski, that's when Bruno comes in

45:42 - and may or may not have overruled those,

45:45 - whether they were mistaken or good law or bad law.

45:48 - But how would Bruno didn't deal with the interpretation

45:51 - of legal services contracts?

45:53 - So how does Bruno deals

45:57 - with the duties in tort and duties and contract?

46:01 - Bruno doesn't address, and or whether or not implicit in a legal

46:04 - contract is the duty to provide the services at a competent level.

46:10 - No, Bruno did not deal with the contract for legal services.

46:13 - Right.

46:13 - And but you seem to say the Bruno you just seemed to argue

46:17 - that Bruno, overruled Bailey and Gorski.

46:21 - I just want to make it clear there may be language in in Bruno

46:25 - that could be applied in this case, but Bruno did not deal with legal services

46:31 - or the contractual provisions in the legal services.

46:34 - Yeah, agreed.

46:35 - And we don't disagree.

46:37 - But even Mr.

46:38 - Albert himself, in his brief on page I'm sorry, on page 14,

46:43 - he kind of admits that even if it didn't

46:46 - explicitly overrule in the context of a legal services agreement,

46:50 - just in the broader context of the gist of the action doctrine.

46:54 - just from Mr.

46:56 - Albert's brief, that to the extent Bailey and Gorski

46:59 - hold, attorneys who commit malpractice can be sued and tort

47:03 - Bruno is inconsistent because it says they cannot.

47:07 - In this regard, Bruno may have overruled Bailey and Gorski, but if that is true,

47:12 - all the post Bruno courts that dismiss the breach of contract claims erred.

47:16 - It was the tort claims that should have been dismissed.

47:19 - That's the reading, that it is only a one way test.

47:21 - But Bruno is clear.

47:23 - Even if it's not, it's holding.

47:24 - It's expressing throughout that it is a two way test.

47:27 - And when it traces the history back to Zell versus Arnold,

47:31 - that's where that comes from.

47:32 - We have cases going back almost 200 years and including Zell,

47:37 - where it was the contract claim that was dismissed, and the tort claim

47:41 - that was that survived the analysis.

47:44 - And so it is after, Bruno,

47:47 - that we get to the legal malpractice context specifically.

47:51 - First, it's the Third Circuit in 2016, the case called,

47:55 - New York Central Mutual Insurance versus Edelstein.

47:58 - And that's the Third Circuit case.

48:00 - And then we get to this court in 2018.

48:03 - First, a case called signer versus Finkelman again, in 2020,

48:07 - a case called John Stone versus Raphael.

48:10 - and again in 2022, a case called Corliss versus Ciccarelli.

48:15 - And then again in 2023, a case called Outer Limits Technologies.

48:19 - And just among this panel, we have,

48:23 - in John Johnstone, Judge

48:25 - Lazarus and, Judge Councilman, who wrote the opinion

48:28 - found in our favor of this argument that the gist of the action

48:33 - doctrine does bar the contract claim in a malpractice case in the.

48:38 - And that would dovetail with the fact that it deals with the responsibilities

48:43 - in terms of social discourse as opposed to an individual contract with the parties.

48:48 - Correct.

48:48 - It's a generalized duty that all lawyers owe to all clients universally.

48:54 - And that's that's a non precedential decision.

48:57 - Correct.

48:58 - It is face of value.

48:59 - But we're not bound by that.

49:01 - Agreed agreed.

49:02 - So we come we come back to the the principal question we have to answer here.

49:06 - the complaint alleges a duty or an obligation.

49:09 - And the question is whether that arises out of tort or contract.

49:13 - And I think part of our task is to examine,

49:17 - under which course of action that duty arises, the implied obligation to provide

49:22 - professional services in accordance with the, you know, standard of care.

49:26 - Why is that not an implied term in the contract?

49:33 - In this case,

49:35 - it there is a duty

49:38 - by all lawyers to all of their clients

49:42 - to perform competent legal services by virtue of contract or by social policy,

49:47 - but by virtue of the law of torts, whether or not

49:50 - they agreed to that in their contract, whether or not they negotiated it,

49:54 - because that's a distinction the law makes.

49:56 - Does it arise out of contract, or is it a duty established in social policy?

50:00 - It is a duty that just exists by the law of torts.

50:03 - I guess that would be more social policy.

50:05 - You don't have to negotiate this with your client to perform competently.

50:08 - They don't have to pay you extra consideration to represent

50:12 - them versus to represent them competently.

50:15 - It just exists.

50:16 - And if you're if you have a pro-bono client who is not paying you at all, or

50:20 - are you what you're telling us is that in order to sustain a contract action,

50:24 - the obligation has to be explicit, not implicit.

50:28 - It would have to be a duty that you, the lawyer and the client agree agree to

50:32 - that did not already exist just by virtue of the attorney client relationship.

50:37 - So some extra duty and it's harder to find

50:41 - a hypothetical in the lawyer can't lawyer client context.

50:45 - But for example,

50:46 - if it's you're in addition to the normal attorney client relationship

50:51 - and in addition to the generalized duty to provide competent legal services,

50:55 - you also agree that, you know, you're going to,

51:01 - file this particular brief in this appeal.

51:03 - And that's the limited, you know, limited purpose of your representation,

51:08 - and you don't file the appeal.

51:09 - You've reached that term in the contract.

51:11 - There could be some specific damages that flow from that.

51:15 - But, you know, it's it's there has to be something specific that you I think that

51:19 - the basic question is, is the obligation

51:23 - that was, breached or not met here a matter of independent social policy,

51:28 - or does it arise only because of the contract in in this case,

51:33 - you need to look no further than Mr.

51:35 - Poteet own complaint.

51:36 - I mean, he uses the very language of professional negligence.

51:41 - and I can find it in the brief.

51:43 - But just for expediency, I think it is something to the effect of,

51:46 - you know, he's suing the lawyers for breach of contract because they failed

51:50 - to abide by the standard of care that is owed,

51:53 - you know, to all clients or something to that effect that I am paraphrasing.

51:57 - So you're split, you're saying is I'm charged with, in a criminal matter.

52:02 - I hire a lawyer.

52:04 - that lawyer then is found by another court

52:07 - to have provided ineffectiveness of counsel.

52:11 - I don't have a that so you're saying within that contract is not a provision

52:16 - that the lawyer provide, effectiveness of counsel.

52:20 - And I mean, what we have in this case is we do have a finding by the Pcori court.

52:25 - The counsel acted ineffectively, and you're basically saying

52:29 - that's not part of the contract, that it's

52:32 - it is an implied duty that is owed by every lawyer to every client.

52:36 - But at the end of the day, when you when you sue for that,

52:40 - when a client is suing the lawyer for that, it comes down to one or the other,

52:43 - whether they're suing

52:44 - for a breach of the contract or whether they're suing in tort.

52:47 - And that is that is a tort.

52:49 - It is not.

52:50 - And that goes to your argument that the gist of the action goes both ways.

52:54 - Well, I say that only because Bruno suggests that it does.

52:59 - And tracing the case law, you know, back through the decades, it has

53:05 - got your time is your time.

53:06 - But are there any other questions?

53:08 - Counsel?

53:09 - Thank you very much.

53:10 - Thank you.

53:13 - You have your rebuttal counsel.

53:22 - Your honor,

53:22 - it's not a question of one or the other.

53:26 - The question that was just asked recently.

53:28 - Is it an independent, is it independently flowing

53:32 - from tort law or is it flowing from the contract?

53:35 - There is no principle that I know of that says that once public interests are

53:40 - protected by tort law, they they cannot also be protected by contract law.

53:45 - There was no requirement until very recently

53:48 - that an attorney,

53:51 - actually have a fee agreement.

53:54 - Before that, an attorney could not have a fee agreement.

53:57 - Now, there are some with,

54:00 - professional responsibility requirements, but that has nothing to do

54:04 - with whether or not it's a contract action or a tort action.

54:08 - That's just you cannot sue on the

54:12 - for money damages without an actual contract.

54:16 - For a contingency fee case, the rules require you to have,

54:20 - even a non contingency.

54:23 - You have to develop the scope of the contract

54:25 - and what you're going to be charging and how the charges are going,

54:28 - but that that just deals.

54:29 - That has nothing to do with the just to the action.

54:32 - No, not at all.

54:33 - Because there's nothing

54:34 - that says there's no you can have an oral legal services contract.

54:38 - It does not have to be written.

54:40 - Bailey makes that clear because one of the two defendants

54:42 - and Bailey didn't have a written one.

54:44 - They had an oral one. But, no.

54:47 - Whether or not the contract is written or oral,

54:50 - is is irrelevant to the analysis of that, just to the action, doctrine.

54:55 - I'm sorry.

54:56 - I also I'm struggling with how far do we take this.

55:00 - Right.

55:00 - You have an attorney who failed to,

55:03 - you know, had a rule 600 violation, failed to request credit for time served.

55:08 - What about failure to move in your exhibits into evidence

55:11 - or improperly advising a client not to take the stand?

55:15 - Are we are are these all breach of contracts to the extent

55:21 - that those are supported by expert testimony, certificates of merit, etc.?

55:27 - That suggests that those actions,

55:30 - I don't want to say rise to the level, but fail to rise to the level of adequacy.

55:34 - And that they constitute legal malpractice.

55:37 - Yes, they are included.

55:39 - Anything that rises to that level.

55:41 - So now you're saying

55:42 - a certificate of merit would come in on a breach of contract action?

55:46 - I did it, not the certificate of merit.

55:48 - The point was simply that to the extent that any legal malpractice action contract

55:54 - or otherwise requires expert testimony

55:57 - to validated, which begins with the Certificate of Merit,

56:00 - but ends with the expert testimony at trial, that such conduct

56:06 - was a departure from the standards and norms of the profession.

56:11 - Yes, that is a breach of contract.

56:15 - yes. Yes, you're under contract actions, though.

56:18 - I mean, we're looking at the Four Corners.

56:20 - We're looking, you know, this is, you know, I think to to Judge King's point.

56:25 - How far out are we going?

56:28 - I mean, when we're talking about now, expert testimony, certificates of merit,

56:32 - you know, bringing in experts to talk about, you know,

56:36 - what is the standard of care? What is the duty?

56:38 - What was the breach?

56:39 - I mean, now we're we're we're treading very deep into tort waters.

56:45 - You're simply

56:46 - establishing whether there was legal malpractice at,

56:50 - also, if you look at the procedural posture

56:53 - where we're in, this is just preliminary objection.

56:56 - So we have to accept as true the Pcori court finding of ineffectiveness

57:01 - where whether this where this case goes, it's a whole nother issue.

57:06 - Not before us.

57:08 - I have a follow up on,

57:10 - by the way, on the comment of where this case goes,

57:14 - and I'm frankly concerned

57:16 - over your avoidance, and I don't blame you for avoiding it,

57:20 - to address the issue of damages, because it appears to me

57:25 - you're not willing to say we're looking for damages.

57:29 - Typical in a breach of contract case, that actually

57:33 - you're going to be looking for damages.

57:35 - Typical in a tort case, in which case, to me, that matters.

57:40 - Whether I might agree that this is a gist of the action case

57:44 - if you're going to be looking at damages moreso created with a toward action.

57:49 - So I wanted to give you another chance to address that question

57:52 - because you were avoid you sidestepped it before.

57:54 - And again, I don't blame you for doing that,

57:57 - but I think it's an important issue.

57:58 - I recognize that, Your Honor, and I think that for the most part,

58:02 - I'll continue to disappoint you.

58:03 - But, my answer is that I'm not sure that I understand the connection

58:09 - between the nature of the damages that's being sought and whether the duty

58:13 - that's being alleged that was breached is one that arose in contract or into court.

58:18 - I'm not sure that I of action defines the damages you can claim.

58:22 - So if the damages you claim

58:23 - are contract damages that would support a contractual action.

58:27 - If the damages you claim are tort damages, that would move it the other way.

58:31 - Explain to me

58:32 - how you can have consequential damages that are not spelled out in a contract.

58:36 - In a contract action,

58:39 - I can see that it may very well be that Mr.

58:41 - Potter could be limited to $15,000 in this case.

58:45 - I don't think that that

58:48 - gives any

58:50 - insight into resolving the legal issues in this case.

58:55 - That may be to miss. To Mr.

58:58 - Poteet disappointment down the road, that the only damages he can get

59:02 - is 15,000, the payment for the for the legal services.

59:06 - But that does not preclude him from getting the

59:12 - the legal ruling that I believe he deserves today,

59:15 - which is that he's entitled to his breach of contract

59:19 - claim and his day in court against the lawyers that caused him

59:23 - to spend four years in jail when he shouldn't have.

59:29 - I guess that's the end of my rebuttal.

59:31 - I thank you for all your time here on. Thank you.

59:34 - Today, the court is also considering a case

59:38 - captioned Swat versus Nottingham Village.

59:42 - Madeline Blues is passed away in 2012

59:46 - while she was a resident at Nottingham Village Retirement Center.

59:51 - Later that year, her sister, as the administrator of her estate,

59:55 - 296 filed a lawsuit against Nottingham in Synergy Grandview Pharmacy.

01:00 - 03.866 Among others, alleging wrongful death and survival,

01:00 - 07.136 along with the claim for breach of contract.

01:00 - 11.207 This appeal has a complicated history in the trial court

01:00 - 14.344 involving numerous lawsuits and parties,

01:00 - 18.214 but relevant to the on bank oral argument, you will hear today

01:00 - 23.720 are the claims appellant asserted against Nottingham and Synergy.

01:00 - 26.456 Grandview pharmacy.

01:00 - 29.459 Initially, Nottingham and Synergy

01:00 - 34.697 asserted defenses to the negligence claims that had been pleaded, arguing that

01:00 - 39.836 those claims were barred by the statute of limitations as to synergy.

01:00 - 44.374 The trial court agreed, concluding that appellant did not assert the claim

01:00 - 48.745 until more than two years after miss loses his death.

01:00 - 54.584 The trial court subsequently granted summary judgment in favor of Nottingham,

01:00 - 57.620 on the same basis that the statute

01:00 - 00.723 of limitations barred appellants negligence claims,

01:01 - 05.561 and that the gist of the action doctrine barred the breach of contract claims.

01:01 - 08.831 The grant of summary judgment in favor

01:01 - 12.035 of Nottingham means that it wins as a matter of law,

01:01 - 16.439 and plaintiff's lawsuit is over without having a trial. More

01:01 - 19.742 importantly, the trial court

01:01 - 24.347 ruled in favor of Nottingham based on the gist of the action doctrine,

01:01 - 28.618 which allows the court to properly classify

01:01 - 31.854 the nature of the action brought by the plaintiff.

01:01 - 35.758 The court will carefully examine the allegations

01:01 - 38.761 of the complaint to ascertain the true nature,

01:01 - 42.965 or the gist of the claims brought by the plaintiff.

01:01 - 46.736 If the court determines that the true nature

01:01 - 51.908 or the heart of the lawsuit is negligence, then the plaintiff must bring her claim

01:01 - 54.911 within two years or the lawsuit is barred.

01:01 - 59.449 If the court reviews the allegations of the complaint and determines

01:01 - 04.987 that instead, the gist or the heart of the lawsuit is for breach of contract,

01:02 - 10.860 the plaintiff enjoys a longer four year period in which to file her lawsuit.

01:02 - 12.929 The Superior

01:02 - 18.167 Court, sitting on bark, must now decide whether the trial court properly granted

01:02 - 23.573 summary judgment in favor of Nottingham based on the gist of the action doctrine.

01:02 - 28.611 The court will also consider whether appellate waived arguments

01:02 - 32.248 related to the trial court's ruling in favor of synergy,

01:02 - 34.784 where she did not include that ruling.

01:02 - 38.187 In the notice of appeal she filed with the Superior Court.

01:02 - 43.226 Although there are secondary questions that the court must resolve,

01:02 - 47.263 the heart of this dispute, like Poteet, concerns

01:02 - 51.734 whether the trial court properly applied the gist of the action doctrine.

01:02 - 53.169 Okay.

01:02 - 54.170 thank you, Your Honor.

01:02 - 56.072 my name is Tim Wotan.

01:02 - 59.342 Represent the plaintiff appellant in this matter.

01:02 - 02.411 and as Your Honor suggested, I suppose

01:03 - 05.414 I should ask, just for a quick point of clarification.

01:03 - 07.650 After addressing the gist of the action,

01:03 - 11.254 I will let you address the other, but I just letting you know.

01:03 - 13.156 Do you want any rebuttal time, counsel?

01:03 - 15.725 just maybe two minutes.

01:03 - 18.728 Sure. Thank you so much.

01:03 - 22.532 Well, Your Honor, as you know, from from,

01:03 - 25.668 reading the briefs, this goes back a while.

01:03 - 28.971 Madeleine Blush is the decedent, signed a contract

01:03 - 33.242 with, Leeds Health Care, which I don't think it's disputed.

01:03 - 37.213 Has an ownership interest in what we call the Nottingham defendants.

01:03 - 40.216 These are the defendants appellees in this case.

01:03 - 44.020 And the contract was for nursing home services.

01:03 - 48.891 The contract in particular, paragraph one is a contract to provide

01:03 - 52.261 and furnish meals and such other personal services

01:03 - 55.832 as may be required for health, welfare and well-being,

01:03 - 58.801 including nursing, including nursing, Your Honor.

01:03 - 00.870 That's correct.

01:04 - 02.805 We allege the plaintiff alleges

01:04 - 07.143 that not only was there a perhaps, failure to rise up

01:04 - 10.580 to the standard of care, which, of course would be a negligence cause of action,

01:04 - 15.751 but there were failures to provide these services in some cases at all.

01:04 - 18.020 And that's where we feel that

01:04 - 22.959 a contract actions should still parallel and remain with the negligence action.

01:04 - 27.597 Can you clarify your pleadings for a moment as I read them,

01:04 - 32.401 you seem to assert both, claims that arise out of tort,

01:04 - 36.572 as well as claims that are grounded in the express terms

01:04 - 39.809 of the contract itself, as you just, you know, reiterated,

01:04 - 45.748 is it possible that what we have here is the preservation of contract

01:04 - 50.086 claims that find their, origin in the language of the contract

01:04 - 53.856 and that we have tort claims that otherwise find themselves

01:04 - 57.660 in the social duty over here, you know, to,

01:04 - 00.663 you know, provide appropriate care.

01:05 - 01.898 That is our argument, Your Honor.

01:05 - 04.901 And I think that's consistent with the e-toll case,

01:05 - 07.103 which says that, of course, a negligence

01:05 - 10.840 and contract action can coexist in one action such as this.

01:05 - 15.111 So the standard to use reasonable care, that's a social policy,

01:05 - 18.881 you know, established in tort law, you know, since time immemorial.

01:05 - 20.416 Correct. Right.

01:05 - 23.419 So can you maintain both tort and contract actions here?

01:05 - 26.322 I believe so, Your Honor, because I think it

01:05 - 28.257 it boils down to whether the services

01:05 - 31.861 were provided in a reasonable way, consistent with the standard versus

01:05 - 35.164 whether the whether the services were provided at all.

01:05 - 39.702 And so there are some instances in which the complaint and the plaintiff

01:05 - 40.803 allege that these services

01:05 - 44.173 were not provided up to standard, such as repositioning every two hours,

01:05 - 46.175 you know, the development of pressure sores.

01:05 - 47.443 But then we also allege

01:05 - 51.347 that food was just straight up not provided on multiple occasions.

01:05 - 53.683 That comes right out of the contract, correct water.

01:05 - 55.651 And so would the trial court be correct

01:05 - 00.556 to toss your tort claims based upon the statute limitations, but that it aired

01:06 - 05.361 in tossing your contract claims, which find their basis in the language itself?

01:06 - 08.497 Well, if we get to the other issue involving the statute of limitations,

01:06 - 08.831 Your Honor,

01:06 - 12.168 and the negligence claims, of course we would vehemently argue against that.

01:06 - 15.037 we we believe, we believe for good reason.

01:06 - 18.574 The negligence claims should stay in as well as the contract for Lazarus,

01:06 - 21.077 or we only arguing the gist of action on this. Right.

01:06 - 23.746 You know, this is a whole the whole second case.

01:06 - 24.413 Okay. Go ahead.

01:06 - 26.515 Well then you may want to address that point as well.

01:06 - 28.284 So are we sticking with gist of action or.

01:06 - 29.685 No. No the whole matter. Yeah.

01:06 - 31.287 You have to do with the whole matter.

01:06 - 34.557 If we determined that the gist of the action knocks

01:06 - 37.727 out your tort claims, then the question becomes for us

01:06 - 41.797 whether or not there still are any contract claims that are still left.

01:06 - 42.398 Understood.

01:06 - 43.566 I do have one question.

01:06 - 47.103 Just before we keep keep moving on, that you say in your brief

01:06 - 51.073 that the gist of the action doctrine forecloses tort claims arising

01:06 - 54.877 solely from contractual relationships, and that it's not a two way street.

01:06 - 58.914 That was the opposite of what counsel said in the last case.

01:06 - 02.218 Can you can you expand a little on your reasoning?

01:07 - 04.253 well, I think

01:07 - 06.956 I'm trying to I'm trying to recall my reasoning.

01:07 - 10.860 I think that I think what I said to, what I said earlier is

01:07 - 13.896 I think that both the negligence and contract claims can coexist. Yes.

01:07 - 16.932 That's so I'm not I'm not sure if one forecloses the other.

01:07 - 17.600 Okay.

01:07 - 20.302 I'm a little confused on what's been mentioned

01:07 - 23.672 several times today that, it goes only one way.

01:07 - 27.777 The gist of the action doctrine does not just simply define

01:07 - 32.348 whether you have a contract action or a tort action means, I mean, so

01:07 - 35.785 if I file a contract claim but as a tort claim, quote,

01:07 - 37.820 you're going to see it on the claim. You have a contract claim.

01:07 - 41.090 There's your writing, it's attached to your complaint and vice versa.

01:07 - 44.093 So, I mean, it looks to see if the course of action

01:07 - 46.929 is supported by where the breach occurred

01:07 - 49.932 or where the standard was unreasonable.

01:07 - 53.269 I think there are some cases, Your Honor's where it's clear that an action,

01:07 - 57.573 is primarily contract or is primarily damages.

01:07 - 59.742 But I mean, we're talking does it only go one way?

01:07 - 04.213 I see it really as a doctrine that just defines which course of action

01:08 - 08.084 you have based upon the breach or the duty that you're claiming.

01:08 - 12.154 My understanding and I could be incorrect, my understanding based upon the

01:08 - 15.624 Ito case, is it doesn't have to be either or both can coexist.

01:08 - 16.358 One action.

01:08 - 19.328 But the duty or the obligation you claim

01:08 - 22.431 that's breached defines which course of action you can assert.

01:08 - 25.067 As to those particular.

01:08 - 27.203 There can be different duties that are reached, right.

01:08 - 30.873 Something you could have a contract and tort action arising out of it,

01:08 - 33.876 like your case where you have express contractual terms

01:08 - 37.413 that you claim were breached, but then you were also alleging action

01:08 - 41.851 sounding in tort based upon social policy, on standards of care.

01:08 - 44.954 And of course, as you know, Your Honor, they have two very different types

01:08 - 45.688 of damages.

01:08 - 48.791 Yes, in this contract action, we're alleging 600,000 and payments.

01:08 - 53.729 And of course, the negligence action, has no ceiling potentially for the damages.

01:08 - 57.133 so if I, if we were to find

01:08 - 00.269 that the negligent, action,

01:09 - 03.239 that action is over

01:09 - 06.642 because of the statute of limitations, that it was not pled appropriately.

01:09 - 09.912 Do you have any law that would sustain your position,

01:09 - 13.282 which I think is that if we still find that there's a contract action,

01:09 - 17.319 it subsumes the negligence action, and it's entitled we're entitled to hear

01:09 - 19.388 both of them in that contract action.

01:09 - 20.856 you'll have to forgive me, Your Honor.

01:09 - 22.591 Off the top of my head, I can't say you anything.

01:09 - 24.460 I kind of thought you might not.

01:09 - 30.032 Okay, so the question for us is if we determine that the negligence action

01:09 - 33.936 is barred by the gist of the action case because of the facts in this case,

01:09 - 37.673 which, admittedly, are very strange.

01:09 - 41.043 are we left with just

01:09 - 44.313 dealing with the contract action?

01:09 - 48.217 And do we have any basis upon which to affirm

01:09 - 51.220 what you are asking for as a remedy

01:09 - 55.925 beyond the $600,000 contract damages?

01:09 - 59.161 frankly, Your Honor, I just don't know if there is case law

01:09 - 02.331 that would say that by pursuing only a quarter, we have to remand

01:10 - 07.503 this case just on a strictly contract basis of this case,

01:10 - 13.209 for a determination as to what parts of the contract itself

01:10 - 14.276 were breached,

01:10 - 16.545 I would imagine that would have to be the appropriate course of action

01:10 - 17.980 if that was the court's decision. Yes.

01:10 - 20.583 Your honor, may I ask about another issue? Sure.

01:10 - 22.651 I want to add to that. Sure.

01:10 - 27.489 Because I we're supposed to look at all of these on, on the issue here,

01:10 - 31.260 whether, this one was properly quashed.

01:10 - 31.860 Yeah.

01:10 - 35.231 there's there's two lines here.

01:10 - 38.334 One that it was premature, so it should be quashed

01:10 - 42.438 or there was a failure to file a motion to strike the non profits,

01:10 - 45.674 which would be fatal to taking an appeal that it should be,

01:10 - 47.643 dismissed on that basis.

01:10 - 50.613 Can you tell us why one or both of those,

01:10 - 53.716 you know, are incorrect?

01:10 - 55.651 Well, thank you for, for the transition.

01:10 - 59.255 Your honor, if I could address the statute of limitations issue on that, just one.

01:10 - 02.524 we we emphatically

01:11 - 06.962 the appellant and I truly believe that it would be inappropriate

01:11 - 10.766 to dismiss that action as as passing the statute of limitations.

01:11 - 11.400 And here's why.

01:11 - 14.403 We have a press P for writ of

01:11 - 18.407 summons filed timely and CV 2014.

01:11 - 19.708 Maybe. I'm sorry.

01:11 - 20.943 It depends on whether we agree

01:11 - 23.345 that the person who filed it had the authority to file.

01:11 - 24.413 Understood. Okay.

01:11 - 26.415 this is just our position

01:11 - 29.418 that it was that the press AP for writ of summons was filed timely,

01:11 - 33.122 three days before the statute of limitations on in the docket.

01:11 - 36.325 We call it the oh five docket CV 20 1405.

01:11 - 41.030 Three months later, the defense filed a rule to it

01:11 - 44.066 to, to file a complaint, to issue a rule, to file a complaint.

01:11 - 46.502 At that time, in the interim,

01:11 - 49.471 the previous executrix of that estate, Janice Hall Baker,

01:11 - 53.676 is replaced by Judge Myers in the Franklin County, Orphans Court,

01:11 - 58.080 he appoints Betty Scott as administrator pro-tem

01:11 - 02.318 to pursue the survival action in the oh five docket.

01:12 - 06.121 His April 11th order from Franklin County says filed this order,

01:12 - 09.091 my order of April 11th in the oh five docket.

01:12 - 13.228 Mary Kilgore's, the attorney for the estate at that time, does exactly that.

01:12 - 15.397 She files

01:12 - 18.400 Judge Myers order in the oh five docket.

01:12 - 22.371 Then Mary Kilgore's, who represents the estate at the time,

01:12 - 25.741 filed a motion to enlarge time to file a complaint.

01:12 - 29.478 Also, that motion was filed in the oh five docket.

01:12 - 32.114 What's so critical, I think, for the court to consider,

01:12 - 34.316 and this is what I consider to be evidence, evidence

01:12 - 35.718 gleaned from the understanding

01:12 - 38.821 of the parties and the court in the motion and the court order.

01:12 - 42.524 The motion, which was filed in oh five docket,

01:12 - 46.829 says that the executrix filed a motion to enlarge the time to file a complaint.

01:12 - 49.465 In this matter, what matter?

01:12 - 52.801 The matter started by pressing p of writ of summons in the oh five docket.

01:12 - 56.638 Executrix filed a writ of summons in this matter.

01:12 - 57.973 That's paragraph one.

01:12 - 01.243 It goes down, further and states that in the wherefore clause,

01:13 - 04.713 executrix request an order granting extension of time to file a complaint.

01:13 - 06.448 Quote in this matter.

01:13 - 10.452 Then Judge William Weast files his order granting the motion

01:13 - 15.824 and says plaintiff has until May 14th, 2014 to file a complaint.

01:13 - 18.961 Quote in this matter, what matter?

01:13 - 24.400 The matter started at the oh five docket on January 2nd, 2014 on a timely basis.

01:13 - 27.936 The defense at that time, the defense consented to this.

01:13 - 31.774 There was no illusion or misunderstanding.

01:13 - 35.844 It consented to filing the complaint or consented to a docket.

01:13 - 38.981 It would be filed under oath because the motion.

01:13 - 40.582 The motion addresses both.

01:13 - 43.118 The motion to enlarge time refers to this matter.

01:13 - 46.889 That's the oh five docket, and that a complaint would be filed in this matter.

01:13 - 48.056 That's the oh five docket.

01:13 - 52.327 I'm just a little confused on the, on the first action proceeds one action.

01:13 - 55.597 I thought that that was dismissed for failure to file a complaint.

01:13 - 59.168 How are you still filing an action to that docket number?

01:13 - 01.770 Here's what happened. if I could.

01:14 - 04.740 So that order was granted, and then Mary, kill this.

01:14 - 08.210 Who represents the estate pursuant to Judge Weeks order,

01:14 - 10.712 tries to meet the deadline.

01:14 - 11.246 The deadlines.

01:14 - 12.548 May 14th, 2014.

01:14 - 15.184 To file a complaint in the oh five docket.

01:14 - 17.886 She she appears at the Northumberland County Proprietary

01:14 - 21.523 one day prior to the deadline, May 13th, and she presents the complaint

01:14 - 24.593 to be filed in the oh five docket.

01:14 - 28.130 Now, for whatever reason, the tary assigns

01:14 - 31.133 a new docket number puts 830 on it.

01:14 - 34.736 The case then proceeds for five years

01:14 - 38.006 under the 830 docket, without any objection from the defense

01:14 - 41.543 or any mention of the statute of limitations at all until five years

01:14 - 46.014 later in 2021, was the order entered dismissing the first action

01:14 - 47.549 for failure to file a complaint.

01:14 - 49.451 That was the that's what this appeals all about.

01:14 - 50.252 The, summary

01:14 - 54.122 judgment order from that, from the judge, the trial judge, the trial judge agreed.

01:14 - 57.192 Basically, that motion was to dismiss if I could file a complaint.

01:14 - 59.194 But you're saying but we filed a complaint,

01:14 - 01.964 but they put it under a different docket. That's correct, Your Honor.

01:15 - 06.869 On that basis, it was all court finds that you never asked to have it

01:15 - 09.872 filed under the first docket,

01:15 - 12.841 that the trial court makes a specific finding about that.

01:15 - 15.210 I don't know how the court could possibly make a finding of that.

01:15 - 16.111 There was no testimony

01:15 - 19.248 or deposition affidavits from the attorney at that time, Mary Gilgeous.

01:15 - 23.085 But the intent of the parties and the court is crystal clear.

01:15 - 27.389 Why would counsel present a pleading to the court with a blank docket,

01:15 - 32.027 a space to put in a docket number if it was to be filed under this action?

01:15 - 34.997 My answer to that question is that the attorney at that time,

01:15 - 38.033 and I wish I could go back, and I wish I could I could do this for the both.

01:15 - 38.734 You have a record.

01:15 - 41.970 But but my answer to that question is that Attorney

01:15 - 44.072 Mary Kilgore's must have goofed.

01:15 - 45.173 It was a snafu.

01:15 - 47.042 She did not put the docket number

01:15 - 49.278 on the top right corner of the face of the complaint.

01:15 - 53.582 I would argue very strenuously that that is simply a procedural defect.

01:15 - 55.884 It's a filing error. It's a daunting error.

01:15 - 59.788 And my brief has a multitude of cases under rule 126.

01:15 - 03.158 Why that should be set aside, why that should be totally disregarded

01:16 - 06.962 because all parties and the court understood what that was meant to be.

01:16 - 10.399 They all knew that that complaint was supposed to be in the oh five docket.

01:16 - 12.200 Everybody knew it.

01:16 - 15.237 Okay, assuming all of this is correct in everything you've said,

01:16 - 20.909 we supported by the record, Betty Slot is the administrator, correct?

01:16 - 22.878 Correct. Okay.

01:16 - 25.881 And she filed this complaint

01:16 - 29.985 and she is the party and the only plaintiff moving forward.

01:16 - 31.086 Correct? That's correct.

01:16 - 35.157 Who is Anne Marie slot and Marie Squat is the daughter of Betty Sua.

01:16 - 36.325 Betty's. What died?

01:16 - 39.127 And so Anne-Marie sua took over as an administrator.

01:16 - 41.830 And has she been replaced officially?

01:16 - 42.798 Formally she has.

01:16 - 45.100 Although I forgive me, I don't remember the date okay.

01:16 - 47.402 Or the number of the reproduced record, but she did.

01:16 - 48.036 She was.

01:16 - 48.337 When?

01:16 - 51.940 When were the letters of administration taken out in this case?

01:16 - 53.976 Even pro tem for that is what?

01:16 - 58.981 No. Anne-Marie for Anne-Marie swap again, your honor, I'm so sorry.

01:16 - 59.815 You have to forgive me.

01:16 - 01.416 That's something I wasn't prepared with today,

01:17 - 03.752 because that was one of the issues that was raised in this case.

01:17 - 04.686 Was that not.

01:17 - 06.688 I don't I don't think so, Your Honor.

01:17 - 08.590 because because she was appointed.

01:17 - 11.293 She was appointed administrator long after.

01:17 - 12.661 It's an opposing counsel brief.

01:17 - 15.330 Yeah. Okay. It was it happened long after these issues.

01:17 - 18.967 In 2014, long after the filing of the May 13th complaint.

01:17 - 21.136 That's the issue. That's the time period to look at.

01:17 - 22.170 Are there any other questions?

01:17 - 24.606 Because otherwise you have your rebuttal.

01:17 - 25.273 Thank you. Thank you.

01:17 - 35.984 Morning.

01:17 - 38.987 Your honors, I'm Peter Callahan from the law firm of Burns White.

01:17 - 42.224 I represent the Nottingham defendants, together

01:17 - 45.560 with the Leeds Health Care and Frederick Kessler.

01:17 - 48.964 I would like to reserve two minutes for my coke.

01:17 - 50.532 You don't get two minute.

01:17 - 53.235 You want to share your tired sign? My time, Your Honor.

01:17 - 54.369 Two minutes from Mr.

01:17 - 57.072 Clay burger, who was representing the pharmacy.

01:17 - 00.642 Okay, if I may start with the motion for, for summary judgment,

01:18 - 03.912 as it has to do with the statute of limitations.

01:18 - 09.051 the statute limitations in this case quite clear,

01:18 - 13.555 in terms of blue three, that they filed several months after the two year

01:18 - 16.792 anniversary of the death to address Lucius, one

01:18 - 19.795 which is the oh five case.

01:18 - 23.965 It was commenced timely.

01:18 - 27.502 There was a motion to extend the time to file a complaint

01:18 - 31.139 in response to a rule to file complaint filed by my office,

01:18 - 36.411 there was a request of the office and we said, sure, we have no issue.

01:18 - 38.714 File your motion to request the extra time.

01:18 - 40.615 We did not oppose that.

01:18 - 43.618 That is the end of the agreement as to the extent

01:18 - 47.789 there was no extension or agreement or meeting of the minds

01:18 - 51.193 as to what was going to be filed, by whom it was going to be filed,

01:18 - 55.330 or if it was going to be filed by separate parties.

01:18 - 56.631 By that point.

01:18 - 59.501 At that time, the only thing that was known was that there was a

01:19 - 04.639 state fight going on in Franklin County,

01:19 - 08.477 which resulted in the order that ultimately replaced Janice Hobb.

01:19 - 10.378 Becker, who was chosen by Mr.

01:19 - 13.381 Lucius as her executor.

01:19 - 16.518 On May 13th, 2014,

01:19 - 19.921 when the Lucius three complaint was filed,

01:19 - 25.026 it's important to note that that is filed by someone of a separate capacity.

01:19 - 28.396 It is not. Janice Hobb. Becker is executive.

01:19 - 32.100 This is now Elizabeth Jane Swart as personal representative.

01:19 - 34.703 So you have a different plaintiff.

01:19 - 37.506 It was filed by a different plaintiff's attorney.

01:19 - 39.708 The original was Mr. Sharp.

01:19 - 42.444 Lucius three was being filed by Miss Kill.

01:19 - 47.716 Guess there is no evidence whatsoever what occurred at the monitoring office

01:19 - 51.119 in the processing and the receiving of this complaint,

01:19 - 55.390 with the exception of there was a filing fee paid.

01:19 - 00.962 and had there not had this been meant to be filed in blue case one,

01:20 - 05.400 there would be no filing fee required at the result.

01:20 - 07.068 At the end of that,

01:20 - 11.907 the result was getting Lucius three complaint with a new caption number.

01:20 - 15.410 They've had the caption

01:20 - 18.413 number since May 13th of 2014,

01:20 - 21.449 from May 13th, 2014

01:20 - 24.452 until approximately sometime in 2020.

01:20 - 27.289 They did nothing to correct,

01:20 - 32.127 amend or to raise the issue that oops, I'm sorry, this was really supposed

01:20 - 37.766 to be filed in blue case number one, when the non price was entered properly,

01:20 - 41.269 they've done nothing to fix the nonprofits.

01:20 - 43.638 They did not timely petition the court.

01:20 - 45.674 They did not reach out to counsel.

01:20 - 49.411 They allowed it to sit because at this point they were proceeding under blue.

01:20 - 51.246 Case number three

01:20 - 53.882 the case law is established and repeated

01:20 - 58.453 in my brief, clearly establishes that in order to get

01:20 - 02.324 the non process lifted, that is a process of timeliness.

01:21 - 06.294 And in this case there was no timeliness, no efforts.

01:21 - 09.798 And it wasn't until a motion for summary judgment was filed

01:21 - 13.735 that they started to raise any of the argument under either

01:21 - 16.972 their relation back or nunc pro tunc theories.

01:21 - 22.043 and the summary judgment was in blue C is three correct?

01:21 - 25.981 Yes. That summary judgment was in blue, C is three and non process in blue.

01:21 - 28.984 Case one blue case one was non processed.

01:21 - 30.252 And there's blue C is two.

01:21 - 32.854 But that's not part of today's arguments.

01:21 - 36.157 So if the tort claim could be considered under blue she is one.

01:21 - 38.059 It would be considered timely but not under

01:21 - 41.062 blue C is three is found by the trial court.

01:21 - 42.831 Sorry your I doing quite get it.

01:21 - 46.968 I said if the tort claim was filed under blue case one,

01:21 - 51.273 then it would be timely but not timely.

01:21 - 53.575 Under blue C is three as found by the trial court,

01:21 - 55.844 correct, your honor, blue case one was timely.

01:21 - 58.313 There is no statute limitations basis.

01:21 - 02.183 The reasons blue C is one know has gone away is because there was

01:22 - 06.087 a non process for failing to file a complaint in that file right now.

01:22 - 09.090 Let me talk versus contract.

01:22 - 13.561 if the tort claims are barred why was it correct

01:22 - 16.765 or was it an error for the trial court to dismiss the contract claims

01:22 - 20.635 when counsel expressly refers to contractual provisions

01:22 - 23.939 as the basis for breach action, it was proper for the court

01:22 - 27.142 to dismiss the contract claim under the gist of the action doctrine.

01:22 - 31.579 In this case, Your honor, the gist of the debt action doctrine.

01:22 - 32.647 And thankfully, this one.

01:22 - 37.118 I don't have to worry about a legal, case in that progeny.

01:22 - 39.020 this case, the

01:22 - 42.023 gist of the action doctrine was interpreted very simply.

01:22 - 45.627 The question under Bruno in the contract, as we have here, is

01:22 - 49.698 whether it's non fees sins versus malfeasance in this contract,

01:22 - 53.335 which is a very simple contract dated in 2006.

01:22 - 56.538 basically says

01:22 - 01.076 we'll give you food, medicine, a bed, a wheelchair

01:23 - 04.579 and, and health care and nursing nursing services.

01:23 - 10.485 Those were given there is no evidence that has ever been produced by the plaintiff.

01:23 - 14.789 None and produced none was produced in response to the motion

01:23 - 18.059 for summary judgment, establishing that there was

01:23 - 21.830 nothing provided to Miss Lucius while she was resident.

01:23 - 24.699 So let me I'd like to clarify that for a moment.

01:23 - 28.003 What you're saying is that even though there are contractual provisions

01:23 - 31.006 that could have been breached, you're saying that for purposes

01:23 - 34.409 of summary judgment, no, no evidence was produced

01:23 - 37.946 to establish the breach of any express provisions, correct, Your honor?

01:23 - 39.247 Absolutely correct.

01:23 - 41.449 There was no evidence whatsoever that was produced.

01:23 - 45.687 and as a result, this case is

01:23 - 49.324 a tort case and should be considered to be only a tort case.

01:23 - 54.462 The court breach of contract allegations were only raised in blue case three.

01:23 - 57.899 They were not previously raised in 1 or 2 blushes.

01:23 - 01.770 Three they I believe, you can surmise that they included

01:24 - 05.607 the breach of contract action to now get the benefit of what would be

01:24 - 09.110 a four year statute of limitations versus the two years statute.

01:24 - 09.811 The tasteless.

01:24 - 15.150 And what and what is your argument that if this were in fact a contract action,

01:24 - 19.354 it would not subsume the tort action, any of the tort allegations?

01:24 - 22.791 No, Your Honor, those would be dismissed because there's not you're not able

01:24 - 26.394 to bring those toward actions under the statute of limitations.

01:24 - 29.497 So they would be limited solely to the,

01:24 - 33.001 breach of contract under the pure contract which they haven't supplied,

01:24 - 37.305 which they did not supply a single shred of evidence, as well.

01:24 - 39.574 And I think it's weight back to your distinction.

01:24 - 40.608 I don't want to lose this.

01:24 - 43.211 The nine seasons versus the misfeasance.

01:24 - 46.214 They've only alleged misfeasance, not nine seasons.

01:24 - 49.317 And they didn't produce any evidence of nine seasons, correct?

01:24 - 52.187 In fact, they didn't produce any evidence of malfeasance either.

01:24 - 55.757 There was no confidence, not misfeasance, no evidence given at all.

01:24 - 59.327 So which your argument that regarding the trial court's

01:24 - 03.031 grant of the motion for summary judgment regarding the contract claim,

01:25 - 07.335 the trial court properly did that because the evidence did not establish

01:25 - 08.603 any breach?

01:25 - 10.505 Or is your argument

01:25 - 13.608 the trial court properly granted the motion for summary judgment

01:25 - 17.412 because the tort claim extinguishes

01:25 - 20.548 the contract claim, or both is doing both?

01:25 - 25.453 If you're doing both, okay, okay, I can read the the opinion of,

01:25 - 31.092 judge, Jones both ways, is quite clear that

01:25 - 34.062 if gist of the action converts the contract claim,

01:25 - 37.765 which I believe are counts 910 up to a tort

01:25 - 40.768 claim that's exhausted by the statute limitations.

01:25 - 44.239 It was also true that there was no evidence, admissible evidence

01:25 - 48.776 that was provided in contra position to the motion for summary judgment.

01:25 - 51.779 So I believe it actually handled under under both.

01:25 - 55.416 And from a legal standpoint, you were just relying on Bruno

01:25 - 59.487 for the proposition that if there is a tort claim

01:25 - 03.925 that can extinguish a party's, rights under a contract, we're relying on

01:26 - 09.397 Bruno to say that it is not how one labels an action that governs.

01:26 - 11.733 It is the nature of the action that governs.

01:26 - 15.270 And as you look at it, under the duties

01:26 - 19.174 that are established by either social policy versus those limited by the

01:26 - 23.178 to the contract, that this is a tort claim.

01:26 - 26.447 This is also, you know, really just dealt Bruno

01:26 - 29.384 the holding of Bruno was that the Supreme Court said,

01:26 - 32.820 you have a contract, you have a toward the tort claim can go ahead.

01:26 - 35.590 The gist of the action doesn't apply. Correct.

01:26 - 40.128 The Supreme Court did not extinguish contractual rights under Bruno.

01:26 - 43.631 It just said you have these two similar actions.

01:26 - 46.201 We're going to compare the duties. The duties are different.

01:26 - 50.271 So even though there's a contract here, we're going to allow you to proceed under.

01:26 - 52.240 I was remanded, Your Honor.

01:26 - 54.108 I know, but that was the holding of Bruno.

01:26 - 54.576 It was.

01:26 - 57.712 But I'm using the reasoning of of Bruno what they did, the fact

01:26 - 59.647 the facts of the case are somewhat different.

01:26 - 00.782 I mean, it's very hard to say

01:27 - 04.652 a professional malpractice claim, which is what a nursing home claim is.

01:27 - 07.922 Is is akin to an insurer

01:27 - 10.892 going out to inspect a house after water damage.

01:27 - 15.363 and the problem, I believe, is with the gist of the action doctrine

01:27 - 18.900 not really keeping up with the newer contracts

01:27 - 25.673 and the way that the society as a whole has evolved since its, its original,

01:27 - 28.142 creation.

01:27 - 30.678 Originally it was, you know, free.

01:27 - 35.250 You sold a car, you sold services that were very measurable and distinct.

01:27 - 38.586 That is not the case in the nursing home malpractice case.

01:27 - 40.221 Nursing home malpractice case.

01:27 - 43.191 Oftentimes, there's not even a signed contract by the family

01:27 - 46.694 due to the way the admission processes are currently done.

01:27 - 51.432 And we have the responsibility to provide all residents,

01:27 - 55.803 whether a contract or not, services within the state.

01:27 - 57.538 Let me ask this hypothetical.

01:27 - 59.807 You and I have a contract. You're going to sell me a car,

01:27 - 02.810 you sell me, you sell me car, I pay you for the car.

01:28 - 06.214 I drive the car and the tires blow out.

01:28 - 09.083 And I am in a I'm in an accident.

01:28 - 15.423 I file a claim against you, claiming, that you,

01:28 - 19.661 you sold me a car that was defective.

01:28 - 22.797 How do you apply the gist of the action?

01:28 - 25.566 I and so and so I sue you both breach of contract.

01:28 - 29.971 Because you you sold me a defective car, and I filed a claim

01:28 - 33.775 with my rights under the contract,

01:28 - 36.778 be extinguished by the tort claim,

01:28 - 39.213 assuming you're not injured.

01:28 - 41.582 I believe that the contract itself. I'm injured.

01:28 - 42.383 I'm introducing the.

01:28 - 44.252 Yeah, you can put. That is really not severely.

01:28 - 45.620 Yeah.

01:28 - 46.487 can I?

01:28 - 47.922 Because what I'm trying to do

01:28 - 52.293 is take the gist of apply the gist of the action to non professional service.

01:28 - 54.495 But you're not you're not suing.

01:28 - 57.498 In that case you're not really suing for the same thing.

01:28 - 01.269 In that case, in your tort action you are suing for the damages that

01:29 - 04.906 you sustained as a result of the accident, the blow out, what have you.

01:29 - 09.243 In the other aspect, you are suing for a, repayment of the money

01:29 - 11.346 because you're alleging that the car is defective.

01:29 - 13.348 Dealing includes Bruno.

01:29 - 16.284 If you compare the two duties and Bruno

01:29 - 19.887 said the duties in the contract are different from the duties in the tort.

01:29 - 22.557 So we're not applying the gist of the action.

01:29 - 26.994 But you have two separate duties that sustain two independent causes of action.

01:29 - 27.962 In that illustration.

01:29 - 30.198 I know

01:29 - 33.768 you have a you have do you have a breach of the contract?

01:29 - 39.240 And then you also have the, the tort action on the defective product.

01:29 - 43.244 Well, in, in our case and loses, your honor.

01:29 - 46.581 We provided medicine, we provided water, we gave a bet.

01:29 - 49.784 It's all replete within the deposition of the transcript given by.

01:29 - 50.251 All right.

01:29 - 51.786 Which is why,

01:29 - 54.355 it's only a question of how

01:29 - 57.792 those services were being provided even after we look,

01:29 - 01.662 since we can affirm on any basis, do we need to unravel

01:30 - 05.700 this gist of the action doctrine as applied by the trial court?

01:30 - 08.703 If we find that summary judgment otherwise was proper

01:30 - 12.340 because there was no evidence to support no contract.

01:30 - 15.910 Oh, in the absence of evidence, the motion for summary, you know that.

01:30 - 16.744 That's my point.

01:30 - 20.148 If if we think the trial court got it wrong on the gist of the,

01:30 - 21.382 action doctrine,

01:30 - 25.887 we can still affirm dismissal based upon no evidence for summary judgment.

01:30 - 27.021 Yes. Okay.

01:30 - 31.058 Yes. Your honor,

01:30 - 32.860 the 30s left.

01:30 - 34.061 Thank you, Your Honor.

01:30 - 38.266 the other issue, in terms of the gist of the action,

01:30 - 39.333 the one thing that I would want to

01:30 - 42.637 bring up is when you look at the complaint filed in blue case three,

01:30 - 46.207 all of the breach of the of contract claims

01:30 - 51.913 the exact same language as the negligence claims reads virtually verbatim.

01:30 - 56.851 So at this point, Your Honor, I would request that there's an affirmation

01:30 - 00.655 of firmness of the grant to the motion for summary judgment from the court of,

01:31 - 04.292 below and a dismissal of all claims against my clients.

01:31 - 06.027 Thank you.

01:31 - 09.030 Thank you.

01:31 - 23.010 Good morning, Your Honor.

01:31 - 24.412 Matt Clay burger with Thomas.

01:31 - 27.448 Thomas and Hafer, on behalf of defendant appellee, synergy.

01:31 - 29.217 Grandview pharmacy incorporated.

01:31 - 30.751 your Honors

01:31 - 35.022 synergy is a bit of an afterthought in this appeal, and perhaps rightfully so.

01:31 - 39.293 to begin, the gist of the action doctrine simply does not impact the analysis

01:31 - 42.830 as to synergy, in this case, the issues before the court on appeal

01:31 - 46.868 that relate to synergy are based on waiver in the statute of limitations.

01:31 - 51.372 in terms of synergy being an afterthought, the panel concluded that

01:31 - 54.375 there was a waiver of any appeal issue as to synergy.

01:31 - 56.143 And synergy continues to advance

01:31 - 59.380 that waiver argument and its substituted on bond brief.

01:32 - 03.751 in short, to use a bad pun, the gist of our waiver argument,

01:32 - 07.989 Your Honors, is that synergy was not named in the notice of appeal

01:32 - 12.460 synergies April 2016 order receiving judgment on

01:32 - 15.863 the pleadings was not identified anywhere in the Notice of appeal.

01:32 - 19.300 Synergy was not served with the appeal filings in this case,

01:32 - 22.370 and only learned of this appeal after the appellant's brief had been

01:32 - 26.340 filed, and synergy had to intervene into this appeal in order to be heard

01:32 - 29.377 for the reasons we've articulated in our brief,

01:32 - 33.247 we respectfully request that the court find a waiver under those circumstances

01:32 - 35.983 and quash the appeal as to synergy.

01:32 - 38.219 But Your Honors, respectfully, it doesn't matter

01:32 - 41.455 if a waiver occurred here or not, because the trial court's entry

01:32 - 44.492 of judgment and synergies favor should be affirmed on the merits.

01:32 - 48.229 Synergy only was a party to the blue case three action.

01:32 - 51.632 The only claim that proceeded against synergy

01:32 - 55.603 was a negligence claim, subject to a two year statute of limitations.

01:32 - 58.940 But the reality is Lucius three was not filed

01:32 - 01.742 within two years of Madeline Lucas's death.

01:33 - 05.379 The original complaint in that action was filed May 13th, 2020

01:33 - 09.784 for approximately four months in one week after the statute of limitations

01:33 - 13.955 period had expired, and synergy was not even named in that pleadings.

01:33 - 18.693 It was not until the amended complaint was filed June 30th, 2014,

01:33 - 22.163 that synergy became a party to the case, and by that time

01:33 - 25.366 it had been approximately six months since the expiration of the statute.

01:33 - 27.168 So for those reasons, Your Honor,

01:33 - 28.202 we respectfully request

01:33 - 31.205 that the trial court's entry of judgment on the pleadings be affirmed.

01:33 - 32.840 Thank you, thank you, thank you.

01:33 - 38.813 Thank you.

01:33 - 39.480 Thank you, Your Honor.

01:33 - 41.882 So, try to keep it under two minutes. Here.

01:33 - 42.883 Got you two minutes.

01:33 - 45.119 With respect to, Mr.. Mr.

01:33 - 50.524 Callahan's, observations that with respect to the May 13th, 2014

01:33 - 54.462 filing of that complaint by attorney Mary Kilgore, is that there was a filing

01:33 - 58.232 fee charged by the monetary by initial response to that is so what

01:33 - 01.535 Miss Kill Guess had to do with the plaintiff.

01:34 - 03.971 Told what the monetary told her to do before

01:34 - 05.673 he said you had to pay a fee to file this.

01:34 - 07.808 And she said, okay, I'll pay the fee.

01:34 - 11.612 We can't glean anything from her mental intent based upon the filing of the fee

01:34 - 14.348 sheet. Wait, she could have said, no, I don't.

01:34 - 16.017 There's already an action that's been filed.

01:34 - 17.818 I'm filing this at that other action.

01:34 - 20.588 Well, the prompt, the problem, Your Honor, is that we

01:34 - 21.889 we don't know what she said.

01:34 - 24.892 None of us were witnesses to that back, and there's nothing in the record.

01:34 - 28.596 But we know that there was a filing fee paid that that may be so.

01:34 - 32.433 But again, you're also as if you're claiming negligence to excuse this,

01:34 - 36.170 the burden is upon counsel to establish that it's excusable.

01:34 - 39.240 And when you pay a filing fee, you don't provide a docket number

01:34 - 41.375 and accept it as a separate action.

01:34 - 44.111 That burden sounds like it falls on counsel, not the court.

01:34 - 46.580 We're not we're not claiming that the monetary was negligent.

01:34 - 49.350 That's not the amount of argument I'm saying counsel was.

01:34 - 50.651 Well,

01:34 - 54.755 I guess I guess what I'm getting at here, honor, is if Miss Kill

01:34 - 56.757 guess I put the oh five docket number on the face

01:34 - 59.427 sheet in the corner of the face sheet like he should have.

01:34 - 00.361 We wouldn't be here.

01:35 - 03.330 I mean, that would be considered part of the oh five docket.

01:35 - 08.202 so her only defect, her only error trolling snafu was not putting

01:35 - 11.205 that little number in the right hand corner of the top of the front page.

01:35 - 15.376 Is that so terrible an error that we're going to dismiss the entire action?

01:35 - 18.379 It is because when you establish a new action

01:35 - 21.248 that establishes when the statute of limitations runs.

01:35 - 23.784 But, your Honor, you can only establish you can only interpret

01:35 - 26.754 that as establishing a new action, quote unquote.

01:35 - 31.826 If you completely disregard the clearly memorialized intention

01:35 - 36.263 and understanding and knowledge of all parties and the trial court at that time.

01:35 - 39.633 But there's also a now there's also a non cross on policy.

01:35 - 40.568 Is one correct.

01:35 - 44.438 And the reason why that was not proceeded upon was because there was no way

01:35 - 48.642 in the world that the estate thought that five years later, that the defense

01:35 - 51.645 lawyer would suddenly make a statute of limitations argument.

01:35 - 56.183 They proceeded under the 830 docket with the understanding that this was just

01:35 - 59.787 part of the oh five docket, or essentially and an appendage from it,

01:35 - 01.388 and that it was going to be timely

01:36 - 03.157 and they weren't going to challenge the timeliness of it.

01:36 - 04.692 Because your time is short.

01:36 - 06.393 I have allergies for interrupting.

01:36 - 10.765 Can you address the appellate argument that in your response to the motion

01:36 - 15.069 for summary judgment, you did not provide any evidence

01:36 - 19.340 of the police failure to provide the services?

01:36 - 24.211 I'm sorry, provide the services for the contract claim.

01:36 - 25.646 Yeah, well,

01:36 - 28.649 we believe there were certainly evidence in the form of an expert report.

01:36 - 29.450 There's an expert report.

01:36 - 31.185 This part of the record that addresses the services

01:36 - 34.789 not provided, as well as deposition testimony of Anne-Marie squat herself.

01:36 - 37.892 Okay, but did you attach that to your response for the motion

01:36 - 40.861 for summary judgment?

01:36 - 43.864 Because that's your burden under rule 1035 is you have to

01:36 - 47.802 then come forward and produce evidence and attach it to your reply.

01:36 - 49.904 I'm trying to remember, Your Honor.

01:36 - 52.907 I apologize if it was attached to the motion response.

01:36 - 54.942 I know it's in. Generally it's in the record.

01:36 - 57.077 I know that doesn't matter if it's in the record.

01:36 - 00.781 The rule says you have to show the court in your answer

01:37 - 03.484 to the motion for summary judgment. You have the burden of coming forward.

01:37 - 07.121 Now just to show that there's a creation or genuine issue of material fact,

01:37 - 10.257 not what's otherwise filed in the record, because sometimes,

01:37 - 12.393 you know, the accident report isn't even filed yet,

01:37 - 15.729 and that's why it's your burden to produce it at that moment in time.

01:37 - 17.631 I'd have to revisit that.

01:37 - 20.634 Your honor, my last statement before I'm done with you, if you'll permit me,

01:37 - 23.737 I would just ask the court very kindly to please revisit

01:37 - 26.907 the cases cited in my brief relating to rule 126.

01:37 - 29.343 I believe this is a defect that should be overlooked.

01:37 - 30.644 Thank you. Thank you.

01:37 - 36.317 The next case, the court on bank will.

01:37 - 41.755 Here is Commonwealth versus her forward in Pennsylvania.

01:37 - 45.326 When a person is convicted of a crime and sentenced

01:37 - 49.263 and then appeals the case but wins no relief,

01:37 - 52.466 there are only a few limited ways

01:37 - 55.469 to make a later challenge to that conviction.

01:37 - 00.341 One way is when the convicted person finds what is termed

01:38 - 03.911 after or newly discovered evidence.

01:38 - 07.982 This can be a witness unknown at the time of trial.

01:38 - 11.518 A document of photographs,

01:38 - 16.123 and when there is a claim of new evidence in the form of a witness,

01:38 - 20.261 a judge who reviews this has a task.

01:38 - 24.365 Is the witness credible, believable?

01:38 - 27.167 In their testimony?

01:38 - 29.470 This next case involves

01:38 - 32.473 how that question gets answered.

01:38 - 35.542 In 2011, Mr.

01:38 - 39.513 Herford was convicted of three counts of second degree murder

01:38 - 43.350 arising from a shooting in Allegheny County.

01:38 - 47.254 In June 2020, Mr.

01:38 - 51.558 Herford filed a petition saying he had found a new witness,

01:38 - 55.029 someone named Quentin Ingram.

01:38 - 58.198 Mr. Ingram states that he saw

01:38 - 01.502 two men enter the home where the murders occurred.

01:39 - 04.638 Moments before the shots, and that

01:39 - 08.175 neither one of those people was Mr.

01:39 - 10.411 Herford.

01:39 - 14.081 When the petition was filed, the prosecution opposed it

01:39 - 17.618 and they argued it was too late.

01:39 - 20.087 It didn't explain why

01:39 - 23.190 Ingram was not found earlier,

01:39 - 26.894 and it also said it doesn't matter.

01:39 - 29.964 Mr. Ingram is not believable.

01:39 - 34.001 The judge hearing the case said no,

01:39 - 36.804 this petition is timely.

01:39 - 38.605 But after hearing Mr.

01:39 - 42.109 Ingram testify, said in effect,

01:39 - 45.546 it is not believable testimony.

01:39 - 50.250 The Superior Court will have to address two questions.

01:39 - 55.055 First, is the prosecution correct that Mr.

01:39 - 00.494 Herford had no right to have his claim heard because he was too late?

01:40 - 05.099 He was not diligent in finding the new evidence.

01:40 - 07.034 If Mr.

01:40 - 09.069 Herford was timely.

01:40 - 15.175 The second question is, was the trial judge wrong in disbelieving Mr.

01:40 - 17.878 Ingram, since things Mr.

01:40 - 22.683 Ingram said actually were corroborated by evidence

01:40 - 25.953 in the trial record?

01:40 - 29.723 A judge's job in this situation is to ask

01:40 - 34.728 whether the nature and quality of the evidence is such

01:40 - 38.265 that there is a reasonable probability

01:40 - 41.101 that the jury would have believed it,

01:40 - 44.071 and possibly found

01:40 - 47.074 Mr. Hurford not guilty.

01:40 - 50.744 The Superior Court will now have to decide

01:40 - 55.382 if the trial judge answered that question correctly.

01:40 - 57.751 May it please the court.

01:40 - 59.219 Good morning, Your Honor.

01:40 - 00.421 My name is Rob Perkins.

01:41 - 03.991 I represent the appellant, Isaiah Hereford, and I would request

01:41 - 07.261 three minutes of rebuttal time for

01:41 - 07.761 that.

01:41 - 10.764 I begin by making two observations,

01:41 - 15.035 one based on my lengthy experience doing litigation.

01:41 - 20.474 There are many petitions that lack merit, but not all of them.

01:41 - 21.842 And this one has merit.

01:41 - 26.013 The second observation is that in general,

01:41 - 30.818 this court should defer to the credibility determinations of the court.

01:41 - 33.120 Trial court below,

01:41 - 36.156 but it is not a role of blind adherence.

01:41 - 38.826 It is not completely insulated from review.

01:41 - 41.095 And there are exceptions to the general rule.

01:41 - 44.331 The exception to the general rule applies in this case, because the PCR,

01:41 - 47.401 PCR, a court's credibility determinations

01:41 - 51.071 were based on facts findings that were unsupported by the record

01:41 - 56.643 in inaccurate, incomplete and demonstrate a fundamental misunderstanding of the

01:41 - 00.280 how this new witnesses testimony fit into the case

01:42 - 03.283 as a whole.

01:42 - 05.452 Your honor, as far as the credibility

01:42 - 09.490 findings of the court, okay, I think it's helpful,

01:42 - 12.759 perhaps to start with what did the court not cite

01:42 - 14.995 and piece rate?

01:42 - 18.465 Court did not cite these factors because they did not exist in this case.

01:42 - 22.269 The first is there was no discussion of the witnesses demeanor

01:42 - 26.306 in a way that would be unfavorable to the to the new witness whose name was unfair.

01:42 - 29.109 You said these are facts that they did not discuss.

01:42 - 30.644 Correct at the trial court,

01:42 - 34.348 did not discuss or the PCI, but they are facts that are in the record.

01:42 - 36.049 No, they're not facts in the record.

01:42 - 37.518 Then how can we even consider them

01:42 - 40.154 acting?

01:42 - 42.723 I guess I was making a rhetorical point, Your Honor, that I.

01:42 - 45.692 Oh, these are the types of facts that you would be

01:42 - 48.529 you'd expect to see back, to see that exist in this case.

01:42 - 49.329 Okay. Thank you.

01:42 - 52.099 So no no discussion of the witnesses demeanor.

01:42 - 55.569 The witness was never impeached with the prior inconsistent statement.

01:42 - 59.239 There was no motive offered as to why this witness would have lacked

01:42 - 03.877 nothing of the sort that you expect to see whenever a trial court

01:43 - 07.181 trial judge, a fact finder, is making a credibility determination

01:43 - 12.819 and I cited this in in the brief extensively.

01:43 - 17.124 Ultimately, there's a single paragraph of facts

01:43 - 20.994 that were offered in support of the court's credibility, determination.

01:43 - 24.498 But it's in our standard of review.

01:43 - 28.202 doesn't our standard of review obligate us to see not

01:43 - 31.805 what the court could have looked at, but whether the record contains

01:43 - 35.275 sufficient evidence to support what the court did find?

01:43 - 38.845 Yes, Your Honor,

01:43 - 42.115 I think in way words is it is a deferential standard.

01:43 - 44.952 Unless it's manifestly unreasonable. Yes. Okay.

01:43 - 47.955 And this again, is the rare case where it's manifestly unreasonable.

01:43 - 50.958 Okay. And.

01:43 - 54.294 Your honor, with respect to what the court did offer,

01:43 - 58.131 you know, one of the findings that the court made or relied upon in

01:43 - 02.002 for the credibility determination was while the the new witness said that

01:44 - 06.707 the the two shooters, neither of whom was my client was shorter

01:44 - 10.210 or she they were taller than their my client Isaiah Hartford.

01:44 - 14.348 And not just a little taller, but significantly taller like six inches.

01:44 - 19.886 Yes. And that's not a reason to detract from the witnesses credibility.

01:44 - 22.623 That's a reason to find the witness to be credible.

01:44 - 26.193 So it it's it's hard to grasp in some ways what what

01:44 - 29.162 the court was offering to support is credibility, determination.

01:44 - 30.397 And I want to get into the weeds.

01:44 - 32.366 But I discussed this in the brief.

01:44 - 32.532 Yeah.

01:44 - 35.602 The another aspect was the judge said, well, he you know, he admitted

01:44 - 38.605 he didn't see the two shooters fire shots in the house.

01:44 - 39.973 That's a red herring.

01:44 - 42.075 That's misleading because what the new witness

01:44 - 45.612 said was, I watched two people go into the house.

01:44 - 49.116 They had masks covering their faces, shirts covering their faces.

01:44 - 52.886 And then, you know, very shortly thereafter, you know, shots were fired.

01:44 - 54.788 So he didn't have to be inside the house

01:44 - 57.891 to draw the inference that these two people were the shooters.

01:44 - 01.094 What did we do, though, with the trial court's, statement

01:45 - 04.965 that it didn't find Ingram's testimony to be credible at all?

01:45 - 10.437 So without Ingram's testimony, a lot of your arguments go away.

01:45 - 15.142 Are you saying that the court was wrong in making that credibility, determination?

01:45 - 17.978 And that's precisely what I'm saying.

01:45 - 21.915 Can we disturb that on appeal, even though we may have found differently

01:45 - 23.984 to say, if the judge says, I don't believe him,

01:45 - 26.987 I think you know, his story makes no sense.

01:45 - 28.622 How do we set that aside?

01:45 - 31.591 We engage in

01:45 - 34.961 a review of the record, and we look at what the court cited to support

01:45 - 39.533 his credibility, determination and what the court cited was unpersuasive.

01:45 - 42.769 But not sure we would have to point to the fact

01:45 - 45.772 that what the court said has no support in the record.

01:45 - 48.008 Yes. Okay.

01:45 - 50.510 And I think part of that is to flesh out what does it mean to have support

01:45 - 54.481 and to record what the Commonwealth points to in its brief is creative speculation.

01:45 - 56.249 Why would the witness do this?

01:45 - 57.551 Why would the witness do that?

01:45 - 00.420 And I can offer a lot more persuasive questions.

01:46 - 04.591 For example, how would this witness know what he knew and testify in this detail

01:46 - 05.826 if he weren't there?

01:46 - 07.761 But what they don't point to as evidence?

01:46 - 10.130 So supporting the record means evidence, right?

01:46 - 11.898 But what also about the fact and not

01:46 - 15.869 and most of us were trial court judges is when you're making credibility

01:46 - 19.773 determinations as a trial court judge, you see the witness testified,

01:46 - 23.744 there's a lot of information regarding credibility, determination

01:46 - 27.481 that the trial court gets that's not in the transcript.

01:46 - 30.417 How do we address that issue?

01:46 - 33.186 Well, I have to respond to that, Your Honor.

01:46 - 35.789 that is put a lot of time in that question.

01:46 - 38.792 And one is that you have to believe the court

01:46 - 42.362 that what they say is, is the reason they made the credibility determination.

01:46 - 46.032 So if this court would have said, for example, I watched this witness

01:46 - 48.902 and he was looking to the side and he was looking down

01:46 - 51.805 and he was sweating and he was extremely nervous.

01:46 - 55.342 All, you know, these bodily movements, these mannerisms,

01:46 - 59.212 mannerisms showed me that this demeanor was inconsistent with someone

01:46 - 00.013 telling the truth.

01:47 - 02.883 We don't require the trial courts to do that.

01:47 - 06.453 We we generally accept the trial court's

01:47 - 10.257 observation without it's not as if it's a motion to suppress,

01:47 - 16.296 and or the police officer has to provide specific bodily actions

01:47 - 20.100 in order to determine whether or not the police had a reasonable suspicion.

01:47 - 24.504 Rather, we consistently defer to the trial court

01:47 - 28.675 because not only criminal, but all cases control courts in that courtroom.

01:47 - 29.709 We're not in that court

01:47 - 33.680 when we have a court transcript, which as a former trial court judge,

01:47 - 37.050 there's a lot of information I don't get anymore

01:47 - 40.053 because I'm not in the courtroom when I'm looking at a cold transcript.

01:47 - 43.657 So I'm struggling to overcome that issue.

01:47 - 46.960 So that's what I'm asking you about, I guess, just to finish that.

01:47 - 47.561 Yeah.

01:47 - 51.531 Before the judge never said that he was relying upon the demeanor.

01:47 - 54.401 If the judge would have said that he was relying on the demeanor, then,

01:47 - 56.570 then that would be something you may want to defer to.

01:47 - 01.208 The second response to that, Your Honor, is that this judge who presided over

01:48 - 06.379 the hearing did not sit over the trial, wasn't present in the original trial.

01:48 - 11.351 So the the only thing that the judge heard was this witnesses testimony.

01:48 - 15.455 But to understand how that testimony fit into the case as a whole,

01:48 - 19.359 the court had to review the entire transcript, had to understand

01:48 - 21.161 whether it contradicted

01:48 - 24.164 corroborated with other evidence that was offered at the trial.

01:48 - 26.666 So I would agree with you if if it was the same

01:48 - 30.136 judge that heard the trial, then there would be more reason to defer.

01:48 - 34.808 But the original judge wouldn't have heard Ingram's testimony anyhow.

01:48 - 38.712 So the the original judge couldn't judge Ingram's credibility.

01:48 - 42.015 Only the judge that heard his testimony and that was this judge.

01:48 - 44.551 Well,

01:48 - 47.554 the issue is, is that context matters.

01:48 - 51.458 You need to understand how this excuse the historic court

01:48 - 55.996 made certain suppositions, thought that was going to be applied some.

01:48 - 59.699 But there was support for what you would see in the report

01:48 - 03.403 from the crowd, from the other witnesses who testified. Yes.

01:49 - 08.408 And ultimately, the point is that in order

01:49 - 11.411 a witness comes in and testify about a murder that happened

01:49 - 15.415 ten years ago, if all you listen to is that witnesses testimony, then it's hard

01:49 - 18.885 to understand whether it's corroborated or contradicted by other evidence.

01:49 - 23.156 But the truth is, it had the court reviewed the trial transcript in

01:49 - 25.592 that's understood how it fit in with the other evidence,

01:49 - 28.094 they would have seen that if it was credible,

01:49 - 30.630 because it was consistent with the trial evidence,

01:49 - 33.366 because it was consistent with the eyewitness testimony.

01:49 - 36.603 It matters that and details that you wouldn't have known,

01:49 - 39.539 other than you really had a mastery of the record.

01:49 - 42.642 Some of those issues, though, were before the jury, and

01:49 - 45.745 the testimony of the witness was not consistent

01:49 - 48.748 with probably the most important thing, the jury's verdict,

01:49 - 53.186 such as didn't the jury see Mike pronouncing his name correctly?

01:49 - 55.055 Hurford. Yes.

01:49 - 58.058 And Kurt stand next to each other. Yes.

01:49 - 01.995 So the issue of the height was before the jury, and the jury

01:50 - 03.930 made a determination on that.

01:50 - 06.633 Why revisit the same issue?

01:50 - 08.935 Because we have a new objective

01:50 - 11.371 witness who's come and provided credible testimony.

01:50 - 12.105 Who says that?

01:50 - 13.940 Well, let's talk about that for a moment,

01:50 - 17.777 a witness and correct me if I'm wrong, who doesn't appear until ten years later?

01:50 - 21.047 Yes. A witness who was a convicted murderer.

01:50 - 22.782 Correct? Correct.

01:50 - 25.685 A witness who was an admitted drug dealer? Yes.

01:50 - 28.688 A witness who admits that he purposely,

01:50 - 33.259 hid his appearance on the day in issue. Yes.

01:50 - 37.397 All those things don't add into a judge's determination of credibility.

01:50 - 40.867 Because before you talked about a lot of things that the judge didn't say,

01:50 - 44.437 well, there's an awful lot in the record

01:50 - 47.440 that the judge was before the judge.

01:50 - 51.711 I was I didn't hear the witness, but when I read those facts,

01:50 - 54.714 I said, boy, I would question this witnesses testimony.

01:50 - 57.984 Adding to Judge Pinnell, this question wasn't this witness

01:50 - 01.955 also the son of a prior eye witness? Yes.

01:51 - 03.423 And he lived with her

01:51 - 08.028 during the time when she was testifying and trying to help your client.

01:51 - 12.265 Especially he was telling the truth about what he saw that night.

01:51 - 13.800 But, yeah, he is related to a witness.

01:51 - 15.802 He he was living with his girlfriend primarily,

01:51 - 17.904 but he did stay with his mother from time to time,

01:51 - 19.272 and they all lived in the general vicinity.

01:51 - 22.275 So it makes sense that they would see what happened that evening.

01:51 - 26.279 but he was under some type of prohibition to be in that area, right?

01:51 - 27.947 Yeah. It's pretty common housing project.

01:51 - 29.282 If you've been arrested before there,

01:51 - 31.051 then they'll put you on this no trespassing list,

01:51 - 33.520 and then you can get your girlfriend evicted if they know that you're there.

01:51 - 35.522 So that that I'm with you.

01:51 - 37.490 That in general, whenever someone comes forward

01:51 - 40.560 after ten years, there's a reason to be skeptical.

01:51 - 43.630 But you have to look at every single case on its facts and understand

01:51 - 44.831 how it fits in as a whole.

01:51 - 45.965 So we talked about what

01:51 - 48.902 what the eyewitness or what the evidence was in the original trial

01:51 - 51.871 where my client was convicted, there was only one eyewitness

01:51 - 53.606 who testified that my client was a shooter.

01:51 - 57.944 There was two surviving eyewitnesses, one of whom said, I couldn't

01:51 - 01.448 see who the shooters were, the other one who did identify my client.

01:52 - 03.183 Look at that testimony.

01:52 - 06.586 That testimony contradicts the testimony of the other trial eyewitness

01:52 - 09.856 who testified it, admitted to smoking marijuana and drinking alcohol

01:52 - 10.557 that evening.

01:52 - 13.426 He told the media that evening that I had my head down.

01:52 - 14.561 I didn't see anything.

01:52 - 16.763 But all of that was before the jury, wasn't it?

01:52 - 18.231 But Quintin

01:52 - 21.601 Ingram's testimony was not before the jury, but also so I

01:52 - 26.239 you also had at the trial you had a trial court judge who was there.

01:52 - 30.110 And if the trial court thought that the jury was incorrect,

01:52 - 33.012 the trial court could have granted a motion for acquittal.

01:52 - 37.617 So we do have even though you were critical of the

01:52 - 42.055 with the jury's determination, was there also was a trial court judge there

01:52 - 45.291 who also blessed with the trial what the jury did.

01:52 - 50.563 In my experience, generally, judges are pretty deferential to jury verdicts.

01:52 - 52.766 But the point of view in the courtroom. Right.

01:52 - 54.000 But put a picture.

01:52 - 58.371 But I, I agree with you that trial judges rarely grant motions for acquittal,

01:52 - 00.073 but they certainly can.

01:53 - 02.842 The trial judge has never heard Quentin Ingram testify.

01:53 - 03.743 Like that's the point.

01:53 - 06.379 Is this this, after discovered evidence moves the needle.

01:53 - 10.583 It was a I'm shocked that he was even convicted on this evidence, quite frankly.

01:53 - 14.220 But once the jury hears this new witness, it moves the needle.

01:53 - 17.657 It's an objective witness who comes in and the details matter.

01:53 - 20.560 The details about one of the shooters had two shirts covering their face,

01:53 - 21.261 but can use.

01:53 - 24.264 Can you point to something specifically in the record

01:53 - 28.168 because you're saying with the credibility determination rather than general Lee,

01:53 - 31.838 that these credibility determinations should be overturned because of that?

01:53 - 34.941 Can you tell me something specifically where the judge made

01:53 - 37.944 a credibility determination on something that was inaccurate

01:53 - 41.214 and there's something in the record rather than in general,

01:53 - 45.051 because you're asking us generally to look at what the trial judge did.

01:53 - 47.187 I think I made a couple

01:53 - 49.756 references, but one reference I don't think I reference already.

01:53 - 52.659 One of the things that the record judge said,

01:53 - 55.829 and this is probably the most specific finding that the court offered, was,

01:53 - 58.231 well, this witness,

01:53 - 01.601 the background was that at one point that the the Commonwealth sent

01:54 - 05.371 to the Affiant in Quentin Ingram's case to interrogate him

01:54 - 08.374 and ask him about the statement. And,

01:54 - 11.578 you know, during that interaction, Quentin

01:54 - 14.581 Ingram didn't immediately recognize the officer, hadn't seen him in ten years.

01:54 - 18.284 But then the officer identifies himself, says, hey, I was the person on your case.

01:54 - 21.654 And then Quentin Ingram says, yeah, I remember you, remember you.

01:54 - 23.690 Now, I remember you being at the trial.

01:54 - 24.991 So what the piece rate court.

01:54 - 26.860 And again, that's the most specific finding they offer.

01:54 - 28.428 The court judge says,

01:54 - 31.497 well he said he didn't recognize the the detective in his own criminal case.

01:54 - 34.234 Therefore I don't believe that's not what he said.

01:54 - 37.237 What he said was I didn't immediately recognize that detective.

01:54 - 41.274 But once he introduced himself, I say, okay, yeah, I remember you now.

01:54 - 43.676 It's been ten years. I look different than I did ten years ago.

01:54 - 48.815 I'm sure the detective did, but like, it was just an inaccurate reading of.

01:54 - 50.683 And that's not what he said.

01:54 - 54.621 What he said actually made sense.

01:54 - 57.924 He also said that he didn't want to talk to a detective.

01:54 - 00.627 I have in the open at the prison.

01:55 - 03.630 I have somebody else see that who was snitching.

01:55 - 07.066 And that's a legitimate concern for his safety.

01:55 - 09.502 So yes, that's why the interview started.

01:55 - 10.803 You know, they surprised him.

01:55 - 11.971 He said, I don't feel comfortable.

01:55 - 13.239 There's a bunch of other people outside

01:55 - 14.941 I don't want them to think I'm telling on people.

01:55 - 17.911 You know, I put myself in physical danger.

01:55 - 21.180 I'm an undercover, discredited that as well. Yes.

01:55 - 22.582 And then I would add that,

01:55 - 26.619 you know, after this conversation, he offered to to meet with the detective

01:55 - 30.290 and the call will never bother to send a detective to take it back.

01:55 - 31.157 Correct.

01:55 - 37.230 Let's have another further questions, Your Honor.

01:55 - 40.233 Thank you.

01:55 - 41.668 He has three minutes.

01:55 - 44.671 Right?

01:55 - 48.341 I'm sure.

01:55 - 51.978 The morning.

01:55 - 52.512 Your honors.

01:55 - 55.715 Frank Napa for the Allegheny County District Attorney's office.

01:55 - 00.053 the question before you is, is very.

01:56 - 00.486 I'm sorry.

01:56 - 02.522 Can you just speak into the microphone a little?

01:56 - 03.556 I'm sorry.

01:56 - 04.590 I can't hear you.

01:56 - 07.593 the question for this court is very narrow,

01:56 - 12.832 and it's simply whether the record offers support for the PCR, PCR.

01:56 - 14.901 A court's conclusion that Mr.

01:56 - 18.671 Herefords, after discovered witness, testified incredibly

01:56 - 21.941 and that therefore a new trial wasn't warranted.

01:56 - 25.979 And I think judge the vestibule test I mentioned earlier

01:56 - 31.150 the standard of review here, which is that unless the record contains no support,

01:56 - 35.121 for the PCR, a court's conclusion,

01:56 - 38.424 then its ruling must be upheld.

01:56 - 41.327 So with all due respect to this court,

01:56 - 46.165 the question is not whether or not you judges can look in this record

01:56 - 51.971 and find something that maybe supports the testimony of Mr.

01:56 - 52.372 Ingram.

01:56 - 54.307 the the

01:56 - 58.711 question is whether the record judge says and his conclusion

01:56 - 01.714 that his testimony was not credible.

01:57 - 05.184 And there are myriad reasons for it being incredible,

01:57 - 08.521 some of which he cited in his trial court opinion.

01:57 - 12.759 Now, I don't even know that that a judge has to cite any reasons.

01:57 - 14.093 In his trial court opinion,

01:57 - 17.730 he could simply say, I found the witness incredible, and that's the end of it.

01:57 - 21.000 And if you if there's support in the record for that conclusion,

01:57 - 25.271 it must be affirmed whether and whether it's there, support the record for that.

01:57 - 26.939 Just a fair statement.

01:57 - 29.742 Unless he tells you why he's done something.

01:57 - 33.980 Well, again, I don't know that there is any law that says he has to do that.

01:57 - 37.350 But in this case, he did do that and he offered reasons

01:57 - 40.286 in support of his decision.

01:57 - 42.822 there are others that we mentioned in our brief, but he,

01:57 - 47.760 he made some himself, one of which was that it took ten years

01:57 - 51.130 for this witness to come forward with this information.

01:57 - 54.901 Now, the reason the witness gave he gave a couple reasons

01:57 - 59.439 for taking that long, one of which was that he was a trespasser.

01:57 - 02.742 and so that's why he didn't come forward at first.

01:58 - 06.579 That does not explain why he did not come forward for ten years.

01:58 - 10.416 That might offer an explanation as to why he did not want to talk to the police.

01:58 - 13.853 That night, but it does not explain why it took him ten years.

01:58 - 16.956 He also said one of the reasons that he did not,

01:58 - 21.427 come forward is because he did not know that Mr.

01:58 - 24.397 Hereford was charged as a shooter.

01:58 - 27.400 Well, that's not believable. His mother is.

01:58 - 31.137 As someone mentioned, his mother has been trying to get Mr.

01:58 - 34.574 Hereford out from under this conviction for a decade.

01:58 - 39.545 She gave a statement in 2012 saying that she from a different vantage

01:58 - 43.950 point than her son, saw the actors fleeing from the scene and neither was Mr.

01:58 - 44.650 Hereford.

01:58 - 48.054 There is no estrangement between Mr., Mr.

01:58 - 52.758 Ingram and his mother and so, yet so he said I didn't come forward

01:58 - 58.231 because I didn't know the extent of the involvement of, of, of Mr.

01:58 - 00.900 Hereford or I didn't know the extent of the charges against him.

01:59 - 02.101 That doesn't make any sense.

01:59 - 05.071 That was touched on by the judge in in his trial court opinion,

01:59 - 09.408 the judge also said one of the reasons he didn't find him believable

01:59 - 13.946 is because he was serving a life sentence, essentially a life sentence.

01:59 - 15.081 And that is true.

01:59 - 20.453 He's serving 76 to 152 years for murder, Mr.

01:59 - 21.287 Ingram is.

01:59 - 22.822 And that's a valid reason.

01:59 - 26.192 There's case law that says that that's that's a valid reason

01:59 - 29.462 not to find an after discovered witness credible.

01:59 - 32.565 So there are reasons in the trial court's opinion.

01:59 - 36.602 There are other reasons that also support his decision,

01:59 - 40.606 such as the fact that the version of events testified to by Mr.

01:59 - 43.609 Ingram at the hearing do not match

01:59 - 47.180 what the surviving witnesses testified to at trial.

01:59 - 52.852 Mr. Hereford said he saw two masked men, at least one of whom had a gun,

01:59 - 56.756 in the a couple of minutes before the murder.

01:59 - 59.358 He saw them wearing masks.

01:59 - 00.426 One of them had a gun.

02:00 - 05.398 He said he decided to follow them, which seems absurd, at 1:00 in the morning.

02:00 - 08.568 And he said they ran into the they

02:00 - 11.938 they bum rushed the door and started firing.

02:00 - 14.574 That's not what the two witnesses said.

02:00 - 18.344 The two witnesses testimony indicated that a one man

02:00 - 21.781 came to the door, knocked on the door and asked to buy a cigaret.

02:00 - 24.083 That person was unmasked.

02:00 - 26.452 Obviously, if he's asking to buy a cigaret.

02:00 - 30.456 did Brittany Poindexter say whether the second person was masked?

02:00 - 33.192 I thought she didn't provide that testimony. Did not.

02:00 - 34.627 She was not asked that question.

02:00 - 36.896 She did not provide an identification.

02:00 - 41.968 But it seems clear from her testimony that the person was not was not masked,

02:00 - 45.871 because first of all, like I was just saying, it doesn't make sense for a masked

02:00 - 49.075 man to come to the door and asked by a cigaret,

02:00 - 52.612 Secondly, the police showed her a photo.

02:00 - 53.980 Several photo. Right?

02:00 - 56.015 They're not going to show photo arrays

02:00 - 59.018 to somebody who did not see the face of the witness.

02:00 - 02.521 So it seems it seems intuitive from the record

02:01 - 06.492 that she was not saying that the person who showed up showed up with knife.

02:01 - 11.097 Anyway, the the the surviving, victims testified

02:01 - 14.967 that there was this ruse of somebody coming to the door asking for a cigaret,

02:01 - 19.905 because the the defendant or the victim sold cigarets out of their apartment.

02:01 - 22.008 They went to find a cigaret.

02:01 - 25.745 They brought it back as soon as they open the door to sell

02:01 - 30.683 the guy a cigaret, he came in, followed by the co-actor, and they started firing.

02:01 - 32.952 That does not match with Mr.

02:01 - 36.656 Ingram's testimony that these two men will rushed the door

02:01 - 39.725 after appearing in the window and then immediately running in.

02:01 - 42.561 So there are plenty of reasons not to,

02:01 - 47.133 not to find this individual credible, some of them stated by judge,

02:01 - 50.136 says Naski in his trial court opinion, some of them not.

02:01 - 54.240 But you can use all of them to affirm his decision.

02:01 - 57.343 And you're you're required to. You are not.

02:01 - 00.746 You are not required to look for reasons to find

02:02 - 03.816 that the witness, credible,

02:02 - 08.220 in contradiction to the finding of the of the record judgments.

02:02 - 10.523 And that's the Commonwealth's position.

02:02 - 14.260 The Commonwealth also, by the way, believes that this case is time barred

02:02 - 18.230 and there is no ability to even get to the merits of it.

02:02 - 21.400 I won't go into that, but it's set forth very clearly in my brief.

02:02 - 24.003 so that's that's first things first.

02:02 - 26.472 If you don't get by the time bar, then you can't even get this.

02:02 - 28.441 But anyway, that's the Commonwealth's position.

02:02 - 29.709 If you have any other questions,

02:02 - 33.212 thank you very much.

02:02 - 35.314 If you found

02:02 - 38.317 this.

02:02 - 44.423 your orders briefly.

02:02 - 48.828 And there was some questioning about, you know, piece a court made a credibility

02:02 - 49.428 finding there.

02:02 - 52.431 Therefore, we have to defer to them that

02:02 - 55.334 this court has a more searching standard of review than that.

02:02 - 00.740 And while we afford deference, we also expect the court to to do its job.

02:03 - 03.509 Explain. It's the reasons for its decision.

02:03 - 06.479 And in the context of an after discovered evidence claim, review

02:03 - 09.482 the evidence in light of the record as a whole

02:03 - 12.752 with respect to the Commonwealth, much of what they said was false.

02:03 - 17.056 I mean, please read the record because they talk about,

02:03 - 20.659 you know, the pretty Poindexter set, you know,

02:03 - 23.362 it's creative speculation.

02:03 - 27.066 You know, she must have testified that, you know, one of them was not masked.

02:03 - 28.901 You know, the detectives would not ask someone

02:03 - 32.138 to look at a photo array because if they had a mask, first of all, that's not true.

02:03 - 34.173 Having tried homicide cases,

02:03 - 36.776 depending on various facial features, they'll still show you photos.

02:03 - 42.548 But more importantly, Brittany Poindexter told the police that night

02:03 - 45.885 at the hospital that both of the individuals wore masks.

02:03 - 46.719 That is

02:03 - 49.622 not only

02:03 - 52.258 unsupported by the record is contradicted by the record.

02:03 - 53.793 This, this, this discussion

02:03 - 57.763 of there's this, you know, contradiction in the timeline, this contradict it,

02:03 - 00.766 or is it that there's conflicting testimony on that point?

02:04 - 04.603 Miss Poindexter was traumatized by this.

02:04 - 05.671 That's one of the issues

02:04 - 08.307 with respect to eyewitness identification that can make it more suspect.

02:04 - 10.976 She was traumatized. She couldn't identify anyone.

02:04 - 12.645 It during the trial.

02:04 - 15.548 She couldn't remember or wasn't asked about the mask,

02:04 - 18.651 but there was testimony from a police officer in the defense

02:04 - 22.354 asked a police officer, hey, when you question her that night, did you tell?

02:04 - 25.658 Did she tell you, excuse me, that both of the individuals wore masks?

02:04 - 26.792 And she said yes.

02:04 - 29.728 And they talk about this contradiction between Quentin

02:04 - 32.731 Ingram's testimony and the two surviving eyewitnesses.

02:04 - 34.900 That is not true, Quentin.

02:04 - 36.435 His testimony is more consistent

02:04 - 39.872 with Brittany Point, Dexter's trial testimony than Marcus Madison's.

02:04 - 43.042 So if you're arguing the weight of the evidence to us now, what

02:04 - 44.610 we're where the thing he said.

02:04 - 46.545 One of the reasons I'm sorry, one of the reasons

02:04 - 49.715 the trial court found his not credible is because he was a trespasser.

02:04 - 53.853 But as you indicated, he, he he he didn't want to come forward

02:04 - 57.556 because I could implicate his girlfriend who was on the premises and he had a,

02:04 - 00.793 stay away provision from the from the housing project.

02:05 - 04.129 The trespassing is not a criminal offense.

02:05 - 06.799 So that would have nothing to do with credibility.

02:05 - 08.067 That's true, Your Honor. And this point.

02:05 - 10.102 Well, he's he's serving a conviction for murder.

02:05 - 13.172 Therefore he's a liar that doesn't follow not everything.

02:05 - 15.774 Do we believe in rehabilitation in the Commonwealth of Pennsylvania?

02:05 - 18.744 Do you believe that every person in prison must be lying? No.

02:05 - 23.148 The Commonwealth said that there's case law

02:05 - 26.652 that supports the principle that a witness with a life sentence.

02:05 - 29.989 That alone is enough to find the witness, not to be credible.

02:05 - 31.290 Do you agree with that?

02:05 - 34.660 Or do you think the case law does not, in fact, say that you're.

02:05 - 36.962 I'm glad you asked that question because I forgot to mention that before.

02:05 - 38.664 So there's Commonwealth versus Johnson is a case.

02:05 - 41.500 They're referring to the Commonwealth versus Johnson.

02:05 - 45.204 The it is true that they said the person had little to lose

02:05 - 45.771 because they're serving

02:05 - 50.142 a murder conviction, but the more significant reason that the court

02:05 - 53.145 relied upon to find the witness, not credible, is because it was a perjure,

02:05 - 56.382 because they provided a previous false statement,

02:05 - 58.684 not because he was serving a life sentence.

02:05 - 01.854 And the irony here is the Commonwealth relied upon a jailhouse snitch

02:06 - 03.956 who was incentivized to provide testimony in this case.

02:06 - 07.026 So it's not true that every single person in jails line.

02:06 - 09.595 We have to look at each case under its individual facts.

02:06 - 12.998 The mere fact of serving the life sentence doesn't mean that they're not criminals.

02:06 - 15.367 The fact that they may not have anything to lose.

02:06 - 17.002 If you cite that 85.

02:06 - 20.105 I guess you can bet

02:06 - 23.108 I can make a lot of arguments. Yes.

02:06 - 25.010 Thank you. So thank you, Your Honor.

02:06 - 26.412 Thank you for.