00:00 - Good morning, everyone.

00:02 - Welcome to our second day of oral arguments here in Harrisburg,

00:07 - in our beautiful courtroom at the Supreme Court

00:10 - of Pennsylvania's chambers and the majestic state Capitol building.

00:15 - As architect Alfred Houston envisioned

00:18 - this building to be a palace of art.

00:22 - I highly encourage everyone in attendance to visit

00:25 - the rotunda, the legislative chambers, and the governor's reception room

00:30 - with an eye toward the beautifully crafted artwork,

00:34 - particularly the famous Violet Oakley murals,

00:38 - which were installed in 1927

00:41 - and which surround this courtroom.

00:44 - Violet Oakley was the first female artist to receive a major public art commission,

00:50 - and her murals on the evolution of law are simply spectacular.

00:55 - The majesty of this courtroom is designed to remind us

00:59 - all of the seriousness and importance of the work we all do here.

01:06 - I'd like to draw your attention to Violet Oakley's

01:09 - mural in the back right corner of my left of the courtroom.

01:15 - In it, the Supreme Court of Pennsylvania sits around the time of the revolution

01:20 - in its courtroom, now known as Independence Hall.

01:24 - Presiding is Chief Justice Thomas McKean.

01:28 - McKean voted to declare independence and immediately departed Philadelphia

01:33 - to lead a militia in Delaware, returning to Philadelphia in 1781

01:39 - to be the last signer of the Declaration of Independence.

01:43 - Controversially, McKean

01:46 - served as a congressman for Delaware

01:49 - at the same time he served as chief Justice of Pennsylvania.

01:54 - Chief Justice McCain's legal accomplishments include shaping the U.S.

01:59 - Constitution and establishing judicial review as precedent

02:04 - in Pennsylvania ten years before Marbury versus Madison.

02:10 - Next to him is George Brian.

02:13 - Brian was the second president of Pennsylvania.

02:18 - Serving in that role created by Pennsylvania's

02:21 - constitution of 1776.

02:24 - A staunch abolitionist.

02:26 - Brian's most notable accomplishment was ushering through the first law

02:31 - banning slavery in the country's history.

02:35 - That legislation served as an exam

02:38 - for other northern colonies.

02:41 - Another justice pictured in that mural is William Augustus Atlee.

02:46 - Atlee Affirme, a fervent patriot during the revolution,

02:49 - was appointed to serve as a justice in 1777,

02:53 - and after the constitution of 1790

02:56 - required judges to be learned in the law.

03:00 - He was appointed as the President Judge of Lancaster County.

03:05 - Edward Shippen.

03:06 - The fourth stand to the right in the mural ship

03:10 - and descended from a wealthy merchant family of Philadelphia

03:14 - and was for the most part, neutral during the war.

03:18 - However, interestingly, his daughter Peggy, was the highest paid

03:23 - British spy in the war and was married to Benedict Arnold.

03:30 - In the hallway entering our courtroom.

03:33 - Chief Justice Shipman's portrait is displayed

03:37 - next to his grandfather, father who also served in the same role.

03:42 - Finally, not a Pennsylvania

03:45 - Supreme Court justice, but one of the original United States

03:48 - justices, James Wilson, is dressed in blue.

03:52 - You can see him speaking in the mural.

03:55 - You can't hear him, but you can see that he's speaking.

03:59 - He was discussing the westward expansion of the nation with those in attendance.

04:03 - Wilson was one of only six people to sign both the declaration of Independence

04:09 - and the Constitution during the Constitutional Convention.

04:13 - Wilson advocated for governance by the people.

04:16 - As far as practical and is credited

04:20 - for adding the word we to We the people.

04:24 - Finally, as you likely noticed when you were entering the courtroom,

04:28 - the court has a tradition of hanging oil portraits

04:31 - of former chief justices in our courtroom space.

04:35 - I'd like to just briefly touch on three of the portraits

04:39 - on the right side of the entry and their significance

04:42 - to the court, Chief Justice John Bannister.

04:46 - GIBSON is the longest serving justice in the court's history,

04:51 - serving from 1816 to 1851.

04:56 - God bless him.

04:57 - And having held the office of Chief Justice for 24 years.

05:02 - Gibson studied at Dickinson College and he filled the seat left

05:06 - by his legal mentor, Hugh Brackenridge, a man of many interests.

05:11 - Gibson wrote prolifically with one of his most famous opinions,

05:15 - being a dissent arguing against the principle of judicial review.

05:21 - A dissent that may well have cost him an appointment to the U.S.

05:25 - Supreme Court.

05:27 - Displayed next to Gibson is a portrait of his successor, Jeremiah Black.

05:32 - In 1850, the Pennsylvania Constitution was amended to require

05:37 - that judges be elected for the first time in the Commonwealth's history.

05:42 - The entire bench was emptied

05:45 - and an election was held in 1851.

05:48 - The seven newly elected justices

05:51 - drew straws to determine seniority and justice.

05:54 - Black drew the shortest straw, meaning he would only be able to serve

05:58 - a three year term, but he would serve as chief justice.

06:03 - The next shortest straw served a six year

06:06 - term with the final three years being chief justice.

06:10 - The final portrait on display is the most recent chief justice

06:15 - to serve from the Harrisburg area.

06:18 - Thomas Saylor We were privileged,

06:21 - most of us, to serve with Chief Justice Saylor,

06:25 - and listing his legal accomplishments would take too long.

06:30 - However, one of his most notable actions

06:33 - as Chief Justice was selflessly

06:36 - to turn over that position to my predecessor, Max Baer,

06:40 - seven months early to allow Max

06:43 - to have more time as chief justice.

06:46 - Chief Justice Saylor now serves the court

06:49 - in the capacity of Chief Justice Emeritus and together

06:53 - with Chief Justice Gibson and Chief Justice Black,

06:58 - they are the only chiefs to serve as a justice.

07:02 - Following their service as Chief Justice.

07:05 - Before we hear the first case

07:07 - today, I would like to remind counsel of a few things.

07:11 - Appellate counsel please approach the podium when your case is called.

07:16 - I will then give a short summary of your case.

07:19 - You may then begin by stating your name and the party you represent

07:23 - and by introducing your co-counsel to the Court.

07:26 - The justices are familiar with your cases, so I ask that you avoid

07:31 - any unnecessary recitation of facts or procedural history

07:35 - and instead focus on the main issues on which we granted.

07:38 - Review Counsel is welcome to rely on your briefs for particular issues

07:45 - in cases in which there are multiple parties represented by separate counsel.

07:49 - Please avoid repeating the same arguments as your prior counsel.

07:54 - Please try not to interrupt the justices

07:57 - when we are asking you a question, although we may be interrupting you.

08:02 - A justice's question is not meant to trip you up.

08:05 - Rather, it indicates there are particular issues we wish to explore further.

08:10 - I remind you that we do not allow rebuttal.

08:13 - While there is no set time limit for argument in our court.

08:17 - I will advise counsel when the court is satisfied

08:19 - that all of its questions have been answered

08:22 - and at that time I will ask that you conclude your argument.

08:27 - Hello.

08:27 - I'm Scott Cooper.

08:29 - I'm a partner at the Harrisburg Law firm of Schmidt Kramer here in Harrisburg.

08:34 - I'm here today with Ed Springer, who's a partner

08:37 - with the Harrisburg law firm of Wagner in Spring.

08:40 - I specialize in civil cases.

08:42 - Ed specializes in criminal cases.

08:45 - Today, we're going to give you a background into the Pennsylvania

08:49 - Supreme Court and preview the oral arguments

08:52 - for the cases that you'll be hearing over the next few hours.

08:56 - The Pennsylvania Supreme Court

08:58 - is the court of the highest authority in the Commonwealth of Pennsylvania.

09:02 - There are seven justices who sit on the court and generally

09:06 - they are voted on by the citizens

09:10 - of the Commonwealth of Pennsylvania for ten year terms.

09:14 - After ten years, they can choose to vote to stand for retention,

09:19 - where then the citizens of Pennsylvania can vote

09:23 - whether to retain them for another ten years.

09:26 - Generally, they will stand for retention.

09:30 - However, under the Pennsylvania State Constitution,

09:35 - any justice who reaches the age of 75 reaches a mandatory retirement age.

09:40 - So every once in a while a justice will have to step down during the ten year term.

09:47 - They sit in these cases and

09:49 - these are they do not have to accept every case.

09:53 - These are cases that have been appealed

09:54 - from the Pennsylvania Superior Court and the Pennsylvania Commonwealth Court.

09:58 - And the justices decide whether they want to hear the cases.

10:02 - There will be the chief justice, Chief Justice Debbie Todd,

10:06 - who is the first female chief justice on the Pennsylvania Supreme Court.

10:12 - And then there will be six other justices.

10:14 - And in order to win a case, your side must

10:19 - get at least four of the justices or a majority of those that vote.

10:24 - In one of the cases today, you may hear a judge or two

10:28 - recuse themselves, which means there would only be six justices hearing the case.

10:33 - If there is a 4 to 2 vote

10:36 - that there's then there's one side prevails.

10:39 - If there is a tie, say a33 tie,

10:42 - then what happens is the case from the lower court,

10:47 - whether it be the Commonwealth Court or the superior court,

10:50 - that becomes the law of the case.

10:53 - So what you'll be hearing are appeals from the Pennsylvania

10:56 - Superior Court and appeals from the Commonwealth Court.

10:59 - And you're also going to hear at the beginning of each case,

11:03 - the Chief Justice give a summary of what the facts of the case are about

11:08 - and also what the precise issue the court wants to hear.

11:13 - There's been lots of issues that have been litigated in these cases

11:17 - that some of them go back as far as six or seven years

11:21 - where different issues may arise.

11:25 - But the only issue or sub issues the court is going to be focusing on

11:30 - or the issues, that is the issue

11:33 - that the that the chief justice talks about at the beginning.

11:37 - One other thing before we start.

11:40 - There is no time limit.

11:42 - So in some courts like the Superior Court, each side

11:45 - gets 15 minutes and you get a chance for rebuttal sometimes.

11:49 - In the Supreme Court, you're going to hear the appellate first,

11:53 - and that's who is making the appeal from the lower court.

11:57 - And they will go for however long the justices

12:00 - have questions and generally

12:04 - however long they want to ask them questions and answer.

12:07 - The thing to look for is at the end of when the

12:11 - when the justices are happy and satisfied with all their questions and answers,

12:16 - they will say, We think we understand your argument.

12:20 - Then the appellate will go next and they will make their argument.

12:24 - Generally, there is no rebuttal in the Supreme Court

12:27 - of Pennsylvania, so it'll be both sides

12:30 - and then the case would be submitted and then they go on to the next case.

12:36 - If there are multiple lawyers hearing a case or arguing a case, it's

12:41 - generally only going to be if there are multiple issues involved in the case.

12:46 - But generally the court prefers that only one lawyer for each side argue the case.

12:52 - So with all that being said, let's go to the first case.

12:58 - The next case is Schmidt versus

13:02 - the Schmidt law firm.

13:03 - And this again, this involves another worker's compensation case.

13:07 - And this is going to be involving whether cannabinoid oil

13:13 - is considered under the Workmen's Compensation Act,

13:16 - reimbursable as a medical service or medicine and supply.

13:21 - In this case, one of the attorneys in a law firm

13:24 - was injured in a work related accident and injured his back.

13:28 - He was basically treated with pain management

13:31 - and was provided OxyContin, oxycodone, but he was also prescribed

13:37 - cannabinoid oil

13:40 - and then sought reimbursement for that.

13:44 - The Worker's Compensation Act provides that when you're injured

13:50 - in a work related accident, you could seek reimbursement

13:54 - either the provider or the employee

13:59 - for medical services and supplies. And

14:03 - the Commonwealth Court held

14:06 - that the cannabis oil would be considered medical services and supplies

14:11 - within the scope of the worker's compensation law.

14:16 - The employer and in this case, keep in mind

14:20 - what happens is when you're injured in a work related accident, it's you,

14:25 - at least in the caption is showing up that you're

14:29 - making a claim against your employer.

14:32 - However, even if you're a partner in the case, it's really the insurance

14:36 - company for the employer who's bring in who's making the defense here.

14:40 - So Schmidt makes the claim, and now he's saying I should be entitled

14:45 - to reimbursement for the cannabis oil and the employer saying

14:49 - no for a couple of reasons.

14:50 - One, that medical services and supplies

14:54 - only are supposed to be for pharmaceutical treatment.

14:58 - Also, that cannabis oil is not considered

15:02 - a legal under federal law. The

15:07 - court's going to be looking at what the proper

15:10 - or is it his interpretation of medical services

15:14 - and supplies are under the Pennsylvania Workmen's Compensation Act,

15:20 - and you'll hear a little bit about whether it's legal, whether it's not legal,

15:25 - and whether or not the employer,

15:28 - the employee is entitled to be reimbursed.

15:31 - So the issue that the court's looking at, to sum it up, is whether or not

15:36 - the cannabis oil is reimbursable as a medical service

15:40 - and supply under the Pennsylvania Workmen's Compensation Act.

15:44 - Let's go to the court.

15:46 - Thank you, Chief Justice

15:48 - May please the court.

15:50 - My name is John Kennedy.

15:52 - My co-counsel with me today is attorney Robert Elias.

15:56 - We've had the pleasure for the last five or six years or

15:59 - so of representing the claimants, the law firm, the employer in this case,

16:03 - and the insurance company, Donegal Insurance Company.

16:07 - We are here today to

16:09 - request that your honors reverse the Commonwealth Court determination.

16:12 - Finding CBD oil is a medicine or medical supply

16:16 - under Section 306.1 of the Pennsylvania Worker's Compensation.

16:22 - My goal today, your honors.

16:23 - If the court allows, is to address

16:27 - three primary areas.

16:29 - First,

16:31 - I'll address the issue of whether CBD is actually a medicine

16:35 - or a medical supply under Section 306.1 of the act.

16:40 - Second, I want to address the prescription

16:42 - that was submitted by the claimant in this case from his treating provider.

16:48 - And third, I'll analyze section 306f as it relates to the facts

16:52 - in this particular case, which are unique,

16:56 - how the Section three or 6.1 applies to the prescription

17:01 - and addressed some of the arguments, not all the arguments,

17:03 - but some of the arguments the claimant makes in this brief.

17:07 - Now, since we filed our brief in July of 2020

17:10 - for CBD, oil is still a very dangerous product

17:16 - which carries significant health risks that can't be disputed.

17:21 - Why is why is that?

17:23 - Why is your assertion in that regard

17:26 - superior to the appellees physician's

17:31 - recommendation or, quote, prescription, unquote?

17:36 - Excellent.

17:37 - Excellent question, Your Honor.

17:40 - Of course, not bound certainly

17:41 - by the FDA or the CDC in their opinion, on a substance.

17:45 - But the court has to determine whether CBD oil

17:50 - falls under Section 306.1

17:53 - of the ACT is either a medicine or a medical supply.

17:56 - So the status of any substance that a claimant

17:59 - might purchase out of pocket without a prescription

18:03 - certainly must be reviewed by the court to determine

18:08 - if it falls under section three or 6.1 of the act.

18:11 - This is a substance that and I'll get into this more in my presentation,

18:14 - but this is a substance that is relatively new.

18:17 - It wasn't until the Farm bill of 2018

18:21 - when the federal legislature

18:23 - allowed individuals to take hemp and make products out of it.

18:29 - So the concern that the

18:31 - court should have is what is the substance that we're dealing with?

18:35 - What is the chemical that we're dealing with?

18:36 - What is it that the claimant's actually purchased?

18:39 - And if we can't dispute that, it's a dangerous substance.

18:43 - So it has to be something that the court has to look at because the statutes

18:46 - say what you just said, we can't dispute that it's a dangerous substance.

18:50 - Well, according to the FDA.

18:52 - Well, we we're not governed by the FDA.

18:54 - His his medical provider gets his license here in Pennsylvania.

19:00 - And we're not talking about FDA drugs.

19:03 - We're talking about medicine.

19:05 - The General Assembly use the word drugs elsewhere.

19:08 - They didn't use it here.

19:09 - They use the word medicine and supplies.

19:12 - And I don't know what yardstick you're offering us

19:15 - to look behind the judgment of his licensed medical provider.

19:19 - I don't understand why

19:22 - a lawyers opinion of what's dangerous

19:24 - or an FDA bureaucrat's opinion about what's safe and effective

19:28 - has much to do with what his licensed medical

19:31 - provider says is medicine that could help alleviate his pain.

19:34 - Two things on that, Your Honor, and that those are excellent questions.

19:37 - Number one, the prescription that we received was for topical use only,

19:41 - and the claimant admitted

19:42 - when he testified that he was taking the substance orally.

19:45 - So that's the first question

19:46 - that we had about why the claimant was using this substance in violation

19:50 - or against what the actual prescription that we received said.

19:53 - And I understand the Commonwealth Court

19:55 - reasoned their way out of that, found a way to get around that issue.

19:59 - That's the number one issue on that.

20:02 - Number two is the statute speaks in terms of reasonable medical services.

20:07 - There has to be some analysis of what a doctor is prescribing

20:11 - for a claimant and how it's being prescribed is reasonable.

20:15 - Well, there is it's called the you are process utilization review.

20:18 - Your Honor wouldn't apply until this substance

20:22 - actually falls within a medicine or a medical supply.

20:25 - Okay. So I just I'm not going to go down.

20:28 - I don't want to go too far down this road.

20:30 - But if you could actually use the statutory language

20:33 - instead of the language you're using, it's not medication or medical supply.

20:37 - It's medication

20:40 - and supply medicines and supplies for medicines.

20:42 - So if you could stick with the statutory language

20:44 - instead of going medication and medical supply.

20:47 - Medical supply is not statutory.

20:48 - Sure, you're on medication and supply and you're under the section.

20:52 - Actually, I read it word for word because I think every word

20:55 - once again, it's a statutory analysis.

20:56 - We have to give every word, import

21:00 - the first section, the first sentence, rather, of section three or 6.11.

21:04 - So paragraph II, the employer shall provide payment

21:08 - in accordance with this section for reasonable surgical and medical services.

21:13 - Right. But that's services.

21:14 - We're not talking about services. You got to go to the other side.

21:16 - You've got to go to the other

21:18 - the other part of that statute that deals with medications and supplies.

21:21 - Well, this is this wasn't a medical surplus.

21:24 - This wasn't this wasn't a doctor's visit.

21:26 - This is a medicaid.

21:27 - This is this is something a doctor prescribes.

21:30 - So it's not a medical service.

21:32 - This essential service has to be given by a health care provider.

21:36 - I would think so, yeah.

21:38 - Although I think medical services with pharmaceutical services

21:40 - would fall under that, too. Sure.

21:42 - This wasn't like this wasn't distributed by a pharmacy either, correct?

21:45 - It was no, it was not provided by a health care provider. Correct.

21:48 - So you have to go to Medicaid.

21:50 - You have to go to medications and supplies.

21:51 - And let's go to that.

21:53 - Let's go to that step.

21:54 - And well, this is all the first sentence, your Honor, of Section three or 6.1.

21:58 - It's didn't-I I'm very familiar with the statute. Yes.

22:00 - And I think, Your Honor,

22:01 - when you were analyzing the statute, you have to look at all of the provisions

22:04 - of the statute, not pull out just one phrase,

22:08 - which would be the last phrase, medicines and supplies as and when needed.

22:12 - Section 306f point one talks about medical treatment and medical services.

22:18 - The entire section.

22:20 - I don't think when we're analyzing a statute that the proper way to analyze

22:24 - that is to pull out just one phrase medicine sense place

22:27 - and look at only that phrase and ignore what the rest of the statute says.

22:31 - That's our argument. That's our position.

22:33 - Yeah, I'm I'm not ignoring it.

22:35 - I think the debate here is does this fall within a medical

22:40 - you could have coverage

22:42 - under the workers comp act for medications and supplies,

22:46 - even though medication and supplies are not medical

22:49 - services, medicines, medicines, medicines, medicines and supplies.

22:53 - Yeah, even though they're not, the act covers services and medications

22:57 - and supplies, medicines, medicines, cancer medicines and supplies.

23:01 - Yes, medical supplies.

23:05 - Our position is that you have to read the entire statute and take it in context.

23:09 - But I understand your own position on that.

23:11 - And I think just this week's question was simply, if a doctor says, you

23:16 - you have you suffered a chemical burn

23:21 - and instead

23:23 - of giving you this prescription topical ointment,

23:26 - I'm going to enter a treatment plan that requires you to engage

23:31 - in a daily oatmeal bath, a daily wet bath, oatmeal bath.

23:35 - Okay.

23:37 - But you said opium bath.

23:39 - No, I did nothing. Right.

23:42 - That's interesting.

23:43 - That's what I ask for.

23:44 - Clarification, oatmeal, bath, oatmeal.

23:47 - Thank you, Wood.

23:49 - And and, you know,

23:52 - it's in the treatment plan for the for the doctor health care provider.

23:56 - Probably the best medical provider in the Commonwealth of Pennsylvania says

24:00 - instead of giving you this expensive topical ointment, I'm going to tell you

24:03 - to take a daily oatmeal bath, plain oatmeal or

24:06 - steel cut oatmeal.

24:08 - They submit that the purchase of the oatmeal

24:12 - for reimbursement does the carrier have to pay for it?

24:15 - You know, in your honor, this was one of the things

24:17 - that I was concerned about with the argument today.

24:20 - I think CBD oil is such a unique.

24:22 - No, I'm asking about oatmeal.

24:24 - I understand.

24:24 - Okay. It's so hard to draw analogies store

24:28 - question, but let me see if I can answer that.

24:30 - All you have to do is tell me whether under your theory

24:33 - of the case of the statute, your interpretation of the statute can do,

24:37 - can the claimant get reimbursed for the cost of the opiate?

24:41 - I would think, Your Honor,

24:42 - in a situation like that, if a doctor's formally prescribed it

24:46 - and it's for the work related injury and we have the medical reports to back it

24:50 - up, I would find it hard to believe that any insurance

24:54 - carrier would deny payment for something much.

24:56 - So the answer is yes.

24:56 - Yes. Okay.

24:57 - So I guess

25:00 - I guess to me, your best argument

25:04 - is the fact that the health care provider who set forth

25:08 - this treatment plan didn't comply with the cost containment regulations.

25:13 - Before we get to the

25:14 - cost containment regulations, Your Honor, we have to make a determination if work,

25:17 - if the court is going to include a product like CBD oil

25:22 - under Section 306.1,

25:24 - given what the FDA and the CDC, the state of Pennsylvania,

25:29 - at least two legislatures, legislators that we know well, CBD oil is not illegal

25:33 - in the Commonwealth, but CBD, CBD and oatmeal

25:36 - are both as legal in the Commonwealth of Pennsylvania as the oddity, right?

25:40 - I mean, so I'm not sure why you want to focus on that.

25:45 - The question, it seems to me, under the act is

25:47 - did a health care provider

25:50 - provide this as part of the treatment plan for a work related injury?

25:55 - And if they did, and assuming it's not an illegal substance,

26:00 - then you have to pay for it.

26:04 - If it's part of the treatment plan, unless that assuming the physician,

26:08 - the health care provider

26:09 - who who prescribed it as the treatment plan complies with all the documentation

26:13 - so you can seek a you are review if you want to A you are review.

26:16 - Why am I wrong?

26:17 - A lot of questions there. Let me see if I can break down here.

26:19 - Actually, there are a lot of statements, but with one question why am I wrong?

26:22 - I think the comparison between an oatmeal bath

26:25 - for a burn victim and CBD, it can't really be made.

26:28 - Those are separate analysis.

26:30 - We have to deal with CBD oil and CBD products

26:33 - in this case, because that's the product

26:37 - that the claimant in this case sought for reimbursement

26:40 - and it's so difficult to answer a now by analogy

26:43 - because CBD and all the hemp

26:46 - derived products that are out there now is such a new product,

26:50 - it is admittedly controversial to say the least,

26:54 - and it's something that,

26:56 - you know, it didn't come about until the 2018 farm bill

26:59 - where they put that legislation in place that said that you can

27:03 - possess CBD and hemp related products if it has a Delta nine.

27:07 - THC concentration that's under a certain level.

27:11 - That's why it's very hard to analogize

27:14 - CBD to something like an oatmeal bath or other farm bill,

27:17 - but it doesn't of the farm bill, which I appreciate

27:20 - you mentioned a couple of times, That doesn't it doesn't that combined

27:24 - with the proliferation of these shops, these CBD shops,

27:27 - combined with most importantly with what his physician did here

27:32 - suggest, clearly the trend is is opposite your argument.

27:36 - In other words,

27:38 - it seems it seems apparent that the therapeutic trend for CBD

27:43 - oil is much stronger than the trend for oatmeal and and

27:49 - I return, I guess, to the problem of how

27:54 - this court should find a way

27:57 - to credit your argument over

28:01 - what his physician, in his professional

28:05 - judgment, thought

28:08 - was most therapeutic short of a utilization review, which is.

28:11 - You're right. Thank you, Your Honor.

28:15 - Two things on that factually in this case, Dr.

28:17 - Murphy, the claimant's physician, applied a gave a prescription

28:21 - for only topical CBD oil.

28:25 - And that's clear from the prescription.

28:27 - That's part of the record.

28:27 - I think it's 79.

28:29 - A If I'm not mistaken,

28:32 - that prescription was limited to topical application of CBD oil.

28:36 - It says right there apply as directed PRN.

28:39 - So there is no question that when we received that prescription,

28:43 - that was the first question we had

28:46 - this is an application of topically, not orally.

28:49 - Then we took claimant's deposition testimony.

28:51 - I think it's actually I'm sorry, it was a life hearing testimony.

28:54 - Clement testified that he was taking it orally, So he didn't he say both?

28:59 - He said he was taking an orally.

29:01 - He said he understood that the prescription was for

29:05 - topical application of a CBD oil

29:07 - and that he had decided to try both topical and oral and oral.

29:10 - Worked better, sublingual worked better.

29:13 - That's important because you're talking about if a doctor prescribed

29:16 - something, isn't doesn't the doctor's opinion reigns supreme that,

29:20 - you know, that may be a good argument, quite honestly.

29:22 - But in this particular case, that's not what happened here.

29:25 - Why isn't that why isn't that something you'll deal with in the you are review

29:28 - that you are is that that's an excellent area.

29:31 - You might as well get into that

29:32 - you are Your Honor wouldn't apply until there's a determination.

29:36 - First of all, let me take a step back.

29:38 - Klieman is asking to just be able to submit a receipt

29:42 - and look at their forms.

29:44 - I understand that. And I'm I understand that.

29:46 - I understand what the claimant is trying to do.

29:48 - I'm asking you and I asked you to go to the cost containment requirements

29:52 - because I think you have a very good argument

29:55 - that a health care provider who sets forth a a plan of treatment

29:59 - for purposes of a work related injury

30:04 - and doesn't document the required documentation necessary

30:09 - for the insurer or employer, if self-insured, to to perform

30:15 - a review and potentially ask for a you are that's a problem.

30:19 - I think that that I think you have a pretty good argument on that.

30:22 - My question is this issue over whether he followed

30:26 - the doctor's instructions

30:29 - seems to me to be something you can raise as part of the U.

30:31 - R process

30:33 - because the medical necessity and treatment determination

30:36 - is going to make based on the prescription or the treatment

30:40 - plan that the doctor prescribed, not based on how he is using it.

30:43 - And if he's not using it the way the doctor prescribed,

30:46 - I agree you wouldn't have to claim it, but that would come out of the you are

30:48 - due process.

30:50 - If I understand your question right.

30:51 - I don't believe that as part of the U.

30:53 - R process, the utilization review organization will look at the issue

30:58 - of whether claimant is using CBD oil in accordance with the prescription.

31:04 - They will look at the doctor's cost containment records and the doctor's cost

31:07 - containment record

31:07 - should disclose how the patient is using the medication and

31:12 - whether the patient is using a medication according to the treatment plan.

31:15 - Maybe it's possible they might like in this case have just said try CBD.

31:19 - One of the doctor didn't the doctor didn't provide the report.

31:21 - So that's your whole argument? That's right.

31:23 - So so the doctor didn't do anything that required to do.

31:25 - I'm just I don't know, I, I just I don't understand why you keep

31:31 - why you keep saying there has to be sort of threshold determination.

31:34 - I don't know where that is and the fact that you're arguing for.

31:36 - Well, that's right.

31:37 - In the first sentence of section three or 6.1 I that's where I'm taking that from.

31:41 - But there has to be a determination about it.

31:42 - And that's what happened in this case.

31:44 - Quite honestly, I was counsel of record at the time these these receipts came in

31:48 - from Claimant

31:50 - and the prescription came in.

31:51 - And the first question we had was

31:53 - we can't tell from the receipts what was purchased.

31:55 - And the other question we had was, you know, receipts, handwritten

32:00 - and there was, you know, is the claimant using it?

32:03 - And in answer your question as I'm sorry, getting off track, answer your question,

32:06 - Your Honor, I don't think is part of the your process that you are review

32:10 - or will know just by looking at the medical records, the doctor's chart,

32:14 - if the claimant is using it in accordance with.

32:17 - Well, that's true of every medication a doctor could prescribe an opioid.

32:21 - And it may be possible that the that the claimant is abusing

32:25 - the opioid medication the doctor for prescribing antibiotic.

32:28 - And it may be that the patient is giving the part of the antibiotic to their child

32:32 - because they can't afford antibiotic for the child.

32:34 - I mean, that's that's just inherent in the context of of treatment.

32:38 - That's true.

32:39 - I would agree with you there.

32:40 - You're right

32:41 - that it's possible with any type of medication that the claimant is not using

32:45 - that medication

32:47 - in accordance with the prescription that was issued in the case.

32:51 - That's

32:53 - what you're talking about now is really sort of in the weeds.

32:56 - And if what we're talking about is whether or not he appropriately

33:01 - uses CBD oil,

33:04 - there is an inherent acceptance of the fact that it's a medicine.

33:09 - I mean, I thought you were telling us that CBD oil is not a medicine.

33:12 - I mean, that's the overarching issue here.

33:15 - Well, well, but but if you're okay with the fact that he

33:20 - if he had applied it topically, we wouldn't have a problem.

33:24 - If that was you saying.

33:24 - I don't think that changes the analysis and we're not okay with that, Your Honor.

33:28 - It still would not fall under.

33:31 - In our opinion, our argument is CBD oil, because of its

33:34 - inherent dangerousness, the adverse reactions and so forth.

33:37 - Yeah, but.

33:38 - But then we always get back to the same point.

33:40 - Who are we to say that if his physician prescribed it?

33:44 - And your answer to that is, he didn't prescribe it,

33:46 - You take it orally, he prescribed it, you take it topically.

33:49 - That's not an answer to the question of who are we to say it's not a medicine?

33:54 - I mean, if his if his physician prescribed

33:56 - CBD oil for whatever type of

34:01 - application, doesn't that get us over your argument?

34:05 - Yeah, but some people think it's dangerous.

34:07 - And, you know, this is not something that, you know, we want to encourage.

34:13 - I mean, that's for his doctor to decide.

34:16 - There are many things, your Honor, that doctors might prescribe

34:20 - that might not fall under the definition of a medicine or a supply under Section

34:25 - three and six if there has to be some procedure in place.

34:28 - Well, that's the that's whether it's reasonable, necessary.

34:32 - It's a different issue.

34:33 - It's a different issue.

34:34 - We wouldn't get into our analysis is that you don't get to reasonableness,

34:39 - a necessity and a utilization review process.

34:42 - And so you make that determination that the whatever the substances that

34:45 - the claimant is using falls under section three.

34:47 - See your argument that it's not a medicine and and supply

34:51 - is that it's not reasonable.

34:54 - It's, it's not that it's not reasonable.

34:56 - Is that it.

34:56 - So are you saying CBD oil is reasonable for this.

34:59 - For this.

34:59 - No, just CBD oil today is certainly something

35:03 - that has significant side effects.

35:05 - Is it unreasonable?

35:06 - It's not a reasonable medication to take.

35:08 - It's unreasonable. Correct.

35:09 - Okay.

35:10 - Well, then reasonableness and necessity is decided in the in the you are process.

35:14 - I think it's beyond that, Your Honor.

35:16 - I think it's something that's unsafe.

35:18 - It's something that shouldn't be prescribed.

35:20 - But the fact that you think that well, I don't know where we're I know this

35:25 - the third time a reason is, but I'm still not getting an answer about why

35:31 - an insurance company's thought

35:33 - that something is unsafe trumps a licensed medical providers judgment.

35:38 - If you go back to the time to when this happened,

35:42 - Your Honor, this was all in 2019 and 2020.

35:46 - So the

35:48 - Medical

35:48 - Marijuana Act had just been passed in 2016.

35:51 - So we had legislation in place at that time for medical marijuana

35:55 - that addressed how that product should be sold, how it should be dispensed.

36:01 - The fact that individuals had to get a medical marijuana card,

36:04 - had to see a doctor meet one of the diagnoses in the act,

36:08 - go to a dispensary, be qualified to use that product.

36:13 - And then CBD oil comes into place,

36:17 - CBD oil, hemp related products and marijuana

36:21 - were both schedule one drugs at one time.

36:23 - They were both under the federal designation of a Schedule one drug.

36:27 - Do you think that his physician doesn't know this?

36:31 - I mean, do you think you have a superior?

36:33 - I don't mean you personally.

36:34 - How do you think your carrier has superior

36:37 - knowledge about the

36:40 - medical, the pharmaceutical backdrop than a licensed medical provider?

36:44 - I don't think an insurance adjuster or carrier would have superior knowledge

36:48 - about what the doctor thinks, but I do think the carriers

36:51 - would have an idea as to whether these products fall

36:55 - under the Worker's Compensation Act, specifically Section 306.

36:59 - But but but that doesn't mean it's not a medicine.

37:03 - It means it's a substance that your carrier believes

37:06 - is unreasonable for use under these circumstances.

37:11 - This is a legal substance.

37:14 - You know, this is,

37:16 - you know, going in a circle on this.

37:18 - Yeah, it could be illegal substance, Your Honor.

37:21 - And that's an excellent question. If you allow me to explain.

37:23 - It is a legal substance. Well, it's definitely a legal substance.

37:25 - I mean, I often drive on McKnight Road in the Pittsburgh area,

37:28 - and you can't go a block without seeing a store for this.

37:32 - It's a it's illegal substance.

37:34 - But there are times and that's why we cited this in our brief,

37:37 - there are times when CBD products contain THC

37:40 - and there are plenty of cases, not the least of which was a U.S.

37:43 - Supreme Court case where they just had oral arguments last month, where

37:46 - a trucker took CBD after

37:49 - he had contacted the manufacturer and found out

37:53 - they sent him a correspondence saying it's THC free, don't worry about it,

37:56 - you're fine to take it really took it failed a drug test, lost his job.

38:02 - It's called the porn versus medical marijuana.

38:04 - That's not in my brief.

38:05 - But in that case, he thought he took what he thought was a legal product.

38:10 - It was not a legal product because he had a positive THC drug test

38:13 - after he took it.

38:14 - And as an over-the-road DOT driver, he lost his job, sued that company,

38:19 - and that they just had oral arguments last month in front of the United States.

38:22 - I don't understand how this has any bearing on it.

38:24 - You did. You took his deposition, right?

38:27 - The claim. His deposition?

38:28 - Yeah. Claim It testified live at a hearing? Yes. Okay.

38:30 - So did you ask the claimant where he purchased the CBD?

38:33 - did you ask for a sample of it so you could test the THC content?

38:36 - No. As a matter of fact, Your Honor,

38:38 - the only thing that had come in to us were the receipts.

38:42 - And they were part of the record.

38:44 - The prescription from Dr.

38:45 - Murphy and some records from.

38:47 - I'm saying you had an opportunity to ask him where he purchased it, right?

38:51 - Sure.

38:51 - You had an opportunity to ask him for the CBD oil

38:54 - so you could presumably test it?

38:55 - I you know, we didn't do that, Your Honor.

38:58 - And that's why you had an opportunity.

39:00 - I mean, that's a good I'm not sure why, considering I'm you know, I'm just as well

39:04 - and I do not shop at the same CBD oil store I was in Harrisburg.

39:07 - But but there's a CBD oil store right next to the giant that I shop at.

39:11 - And are you are you suggesting that we are to assume that the CBD oil

39:16 - that that the claimant used here is an illegal substance?

39:20 - It's an illegal substance, yes.

39:22 - It depends on what the THC content asking you.

39:24 - If you're if you're asking us to assume it.

39:26 - No, I'm not asking the court who's obligation.

39:28 - Let's assume he's taking an illegal

39:32 - food.

39:33 - This is I said CBD oil.

39:35 - I'm not sure if it's a drug regulated by as a food or a drug.

39:38 - Let's assume he's taking illegal drug, a drug

39:41 - that on its face is legal or medication that's on its face is legal.

39:44 - But you're saying because of a certain chemical composition, it's illegal?

39:48 - It could be.

39:49 - Okay, who's who has an obligation to prove that it's a claim

39:53 - is burden of proof and the penalty petition, Your Honor,

39:55 - did you did you did you, at the penalty hearing, demand proof

39:58 - that the CBD oil that he was using was a legal substance?

40:02 - At the hearing, I asked the claimant

40:03 - if he was aware that the FDA had raised these issues with CBD.

40:07 - That's not what I asked you. I asked you.

40:09 - I asked you, did you raise the issue of the CBD oil that he was seeking

40:14 - reimbursement of, whether it was legal CBD oil.

40:18 - Did you raise that issue?

40:20 - I know that issue came up, Your Honor.

40:22 - I'd have to go back and I don't want to misspeak and look at the record.

40:24 - It's in the records, in the reproduced record.

40:26 - I know I asked Claimant

40:28 - where it was purchased and I know I asked for specific information on the product

40:32 - that was purchased because we only had the receipt

40:35 - which had a shorthand designation, and there were four or five receipts

40:38 - that spelled out what he purchased.

40:40 - I actually went and found what I thought was the label,

40:43 - which is also part of the record for the product at issue.

40:47 - And I believe there's testimony from the claimant.

40:49 - I don't want to misspeak because I don't have the transcript memorized,

40:52 - but we didn't test it.

40:53 - Your Honor,

40:54 - honestly, I'll be honest with you, that thought

40:55 - never even occurred to me to test the product

40:58 - and see if it was legal or not.

40:59 - I think the point is, is that CBD products right now today as we sit here

41:04 - today, could potentially have THC content that is higher than medical marijuana

41:10 - and people are buying it without a medical marijuana card

41:14 - and then it would be unreasonable to prescribe that.

41:18 - How would you use a way

41:19 - to do what you're doing here, do what you did to the claim and compare.

41:23 - Take it to a utilization review board and say, Here are all the problems with CBD.

41:28 - We don't know if this is adulterated or unadulterated and consequently

41:33 - it's unreasonable to prescribe this under the current circumstances.

41:39 - I made those arguments, Your Honor,

41:40 - to the W C.J., and they were not received favorably.

41:44 - In other words, I lost I so I did raise those

41:48 - to see what that sort of proves the point, doesn't it?

41:52 - I mean, we're talking about a presumptively legal substance

41:58 - that's been prescribed by a physician

42:01 - who understands the risks and rewards of using it.

42:05 - I mean, the alternative for this gentleman was using opioids.

42:08 - Is that what we want to encourage?

42:10 - I don't think so.

42:10 - I mean, this was a reasonable approach to avoiding the use of opioids.

42:16 - The physician agreed with it.

42:19 - I you know, how can we say it's

42:21 - not a medicine based on what, Your Honor?

42:25 - Excellent questions. Let me address the opiate issue.

42:27 - Do we really want a process in place?

42:29 - This is what the claimant is arguing for.

42:31 - The claimant is arguing for a system where injured workers

42:35 - on their own go out to a health food store

42:38 - and purchase products to treat a potentially opiate issue.

42:43 - Is that is that the physician told him to I'm sorry, his physician prescribed

42:49 - that for the treatment of the work related injury.

42:53 - I mean,

42:53 - without that causal connection by a physician that this was prescribed

42:57 - for the treatment of a work related injury,

43:00 - then you're in a different ballpark.

43:01 - But that's not what we have here.

43:03 - The physician in this case prescribed it for topical use, according to doctors.

43:07 - That argument, totally different argument.

43:09 - That has nothing to do with whether or not it's a medicine.

43:11 - I think the claimant is has a requirement, Your Honor, to follow the prescription

43:16 - and that the doctor that does it make it not a medicine.

43:19 - You're saying there's a different flaw in this claim,

43:22 - a flaw that is separate and distinct from whether or not this is in medicine.

43:28 - But, I mean, the overarching issue that we've been asked to look at

43:32 - is whether or not this is a medicine,

43:36 - not if it's topically applied

43:38 - or if it's taken orally, a totally different issue.

43:43 - You may prevail on that.

43:44 - But I mean, what we're really here, as a matter of statewide

43:48 - importance to address is whether or not the CBD oil is a medicine.

43:54 - And, Your Honor, I an excellent point.

43:55 - And Your Honor, my response to that would be as a court

43:59 - in Pennsylvania, the Supreme Court, I think there is an obligation

44:02 - on the Supreme Court to actually look at

44:06 - what we're not bound by it to at least

44:08 - look at what the federal government is saying about this substance.

44:12 - And my brief is replete with examples

44:14 - of so many problems with this substance.

44:18 - So to say that it's a medicine under the Workers Compensation Act

44:22 - when it causes hallucinations and liver damage

44:25 - and it causes problems with pregnant women taking it male reproductive health.

44:30 - But it's somewhat ironic, I suppose, that

44:34 - that you want to parade these horribles

44:39 - with respect to a substance his physician ordered,

44:43 - ostensibly in order to avoid him going to unquestionably

44:48 - dangerous and addictive substances opioids.

44:53 - So I'm

44:56 - is there a disconnect between

45:01 - between the

45:07 - the negatives

45:08 - that you're associating with a legal substance

45:13 - that is physician prescribed

45:16 - while not acknowledging

45:19 - the clear dangers of the substance

45:23 - his physician wanted him to avoid, which were opioids?

45:29 - Your Honor, this substance is available.

45:30 - Pennsylvania Without a prescription, CBD products can be purchased by anyone.

45:35 - So if this court were to say that CBD products falls

45:38 - under the coverage of the Workers Compensation

45:40 - Act, you're going to have injured workers out there buying this without a doctor's

45:43 - presuming a physician, presuming a physician writes

45:47 - a prescription, makes it part of the treatment plan.

45:50 - I wonder how that would work. I'm sorry.

45:52 - Makes it part of the treatment plan.

45:54 - The only you don't need a prescription prescription written

45:58 - on a pad with the prescription are X number of you don't need that.

46:01 - But if a doctor's it's an oatmeal bath oatmeal bath.

46:05 - So back.

46:08 - So if I get a different sample, I don't know.

46:11 - It sounds like I'm I'm beginning to wonder whether Justice Bronson

46:15 - has a side contract with an oatmeal with Quaker Oats.

46:22 - I guess in response to Your Honor's issues,

46:26 - if the court approves it, people

46:28 - are going to buy it and use it for work related injuries without a prescription.

46:31 - Unless the court says, no, you're you're missing a very important point.

46:37 - If a health care provider

46:40 - has made it part of the treatment plan

46:42 - for the work related injury, you're acting like we're ignoring that.

46:46 - That's a very important fact.

46:48 - You're you're worried about injured workers

46:51 - going rogue and saying, I mean, I know my doctor wanted me to take OxyContin,

46:55 - but I'm going to go get CBD oil

46:57 - and then I'm going to submit it to the worker's comp carrier for coverage.

47:00 - In that case, that would be denied without a question

47:03 - because it was not part of the treatment for the work related injury.

47:06 - And we know how to say that in an opinion if that is are

47:11 - committed

47:11 - to a prescription only as part of the treatment plan could be.

47:14 - Yes, because you see part of your argument

47:18 - from this side of the bench and it doesn't involve oatmeal.

47:22 - But isn't the the gist of what you're saying here

47:26 - is you're concerned about the CBD oil because it's not a drug

47:30 - that's been or a medicine that's been approved by the FDA.

47:34 - So in your scheme of horribles, what could transpire is Dr.

47:39 - Feelgood comes into town with his horse and cart and sells

47:43 - snake oil or lavender oil or whatever.

47:47 - And then you have some doctor who, without the FDA

47:51 - approval, says, this stuff is great stuff.

47:54 - Let me write you a little prescription.

47:55 - Go down and see the vendor at the doctor, feel good

47:59 - snake oil stand and get a couple supplies of this on a monthly basis.

48:03 - And then we have a scenario where the Workmen's Compensation Act is supporting

48:10 - a medicine that is who knows what it is and is not approved by the FDA.

48:15 - I think the harder part of your argument is, well, is it a supply,

48:22 - Your Honor?

48:22 - And I can address the supply issue and that that's an excellent point.

48:26 - The Commonwealth Court, when they tried to determine if this constituted a supply,

48:30 - looked at the medical definition of medical supplies.

48:33 - And I understand, Your Honor, your concern about the use of that phrase,

48:37 - but that's what they did.

48:38 - They didn't just look at the word supplies or they

48:40 - you can't really find a definition of medicines and supplies.

48:44 - We looked at once again, I'm I have a lot of respect for my colleagues

48:47 - on the Commonwealth Court, but at this point in time we get that.

48:50 - We get to look at it brand spanking new. Absolutely.

48:52 - So the definition, Your Honor, that they use for medical supplies,

48:56 - they essentially took just the first part of it.

49:00 - They took the section.

49:01 - They said any item that is essential for treating illness or injury,

49:06 - which is quite broad, but what they didn't put in their decision was

49:10 - medical supplies are usually understood to mean articles which are low cost

49:14 - disposable and used in high enough volume that the purchasing department

49:18 - has standing orders in place to ensure that the items of interest,

49:21 - for example, gloves, gauze, needles and syringes are never out of stock.

49:26 - I think, you know, in getting back to

49:29 - Your Honor's position on

49:31 - using the correct language of the statute, medicines and supplies

49:35 - calling CBD oil is supply essentially

49:39 - makes the phrase medicine supplies useless.

49:42 - Well, that doesn't

49:42 - but that doesn't carry the day for you per just per Judge Wallace's concurrence.

49:47 - We could certainly decide it's a medicine.

49:51 - Absolutely. I was answering. Yeah. Okay.

49:53 - Justice Monday's question about fair, is it a supply?

49:57 - I think that's the supply argument that the

50:00 - the Commonwealth Court set forth

50:03 - really didn't take into account the full definition of medical supplies.

50:06 - It's CBD oil is not a medical, it's not a supply.

50:11 - If we're going to separate out medicines and supplies,

50:14 - it's not a supply because it used to be hemp, used to be a schedule one drug.

50:19 - So if we're going to use, you know,

50:21 - look at the language and apply import to all of the words of the statute,

50:25 - you have to give it its it's common everyday ordinary usage.

50:29 - And if you're going to say that CBD oil is a supply

50:32 - and supplies could be medicine, it renders that whole analysis process.

50:35 - I'm going to drop oatmeal because apparently a problem.

50:38 - Aloe vera, aloe vera.

50:41 - What if what if a what if a for burn

50:44 - the tree been a chemical burned the doctor's treatment plan includes

50:48 - apply aloe vera topically not orally twice a day

50:52 - and that claimant submits the aloe

50:56 - vera receipts for reimbursement.

50:59 - Is that a medication or a supply?

51:02 - That would be a supply, your Honor.

51:04 - And that would be reimbursed,

51:06 - As a matter of fact, in this case, my wife and supply aloe vera.

51:10 - No, I think it would be a supply.

51:12 - The medicine just supposed a

51:15 - different I mean, I don't know if aloe vera actually falls

51:19 - under the federal designation of an over-the-counter medication.

51:23 - I'm not an expert on Oliveira.

51:25 - I'm somewhat of an expert on CBD.

51:27 - But aloe vera, if it's considered an over-the-counter medication

51:31 - which has a specific designation, your honors under federal law.

51:36 - Tylenol, Advil, aspirin, all of those products

51:40 - that you go into CVS and Rite Aid and see on the shelf as pain relievers?

51:44 - Bengay Well,

51:45 - the next thing, if you go down that road, then I'm going to get back to oatmeal.

51:48 - What I mean, seriously is, you said oatmeal was covered.

51:51 - So is oatmeal medication or a supply?

51:53 - Oatmeal would be a food product and that's how the the federal government looks at.

51:57 - Well, you said it's reimbursable.

51:59 - I think so. Is it a medication or a supply?

52:01 - Yeah, Your Honor, it's hard to look at these things in the abstract

52:04 - until you're actually face no specific facts.

52:06 - You're you're faced with you're faced with arguing a statutory construction

52:09 - argument here. Yeah.

52:10 - And if you're prepared to argue a statutory construction argument,

52:12 - you've got to be prepared to take it out to its logical extension.

52:15 - So you said oatmeal would be covered.

52:17 - If it's an oatmeal bath for treatment,

52:19 - is it is oatmeal a medication or a supply that would fall into the supplies?

52:22 - I think most adjusters would say that's a supply Now, aloe vera and I don't know,

52:26 - I'm not an expert on Elvis and I don't want him to speak to the court.

52:29 - When you walk into CVS and Rite Aid and so forth, Tylenol, Advil

52:34 - those are all the over-the-counter medications and they're all covered.

52:38 - Yeah, absolutely, Your Honor.

52:39 - That would be something I can't see.

52:41 - You know, an attorney applies and I spoke about this issue many times.

52:45 - And in this case,

52:46 - when we picked up the case initially, we did a stipulation

52:49 - and we covered some of the claimant's

52:51 - out-of-pocket costs just recently, just over the summer,

52:53 - there were some out-of-pocket costs that the claimant purchased.

52:56 - I think there was a back brace he purchased himself and there was

53:00 - some other medications I can't remember.

53:01 - And we we covered them. That's fine. That's not a problem.

53:03 - That's what happens in worker's compensation.

53:05 - But CBD oil is so unique.

53:09 - CBD oil is just

53:10 - and that's why it's very hard to analogize and make analogies to other products

53:14 - because it really doesn't match any other product that's out there.

53:17 - It doesn't match medical marijuana, that's for sure.

53:19 - It's similar to medical marijuana because they come

53:22 - from the strength, the same strain and they have the same effects on people.

53:26 - But CBD oil, I think if it's anything the court would have to find

53:31 - and we disagree with this, it falls under the medicine section

53:35 - of and not the supplies, because that would just render that

53:38 - section that language medicines and supplies completely useless.

53:42 - That point.

53:42 - It wouldn't there would be no meaning to those words.

53:45 - What's your definition in medicine?

53:47 - There is no definition of medicine in the Workers Compensation Act.

53:51 - Do we look to dictionary definitions?

53:53 - I mean, do you seem to think there is because you keep referring

53:56 - to federal designations

54:01 - that somehow

54:03 - render certain substances medicine.

54:06 - Where are you getting that from?

54:07 - I mean, the act refers to medicine,

54:10 - right, Your Honor, when we're looking at a statute,

54:13 - I think you have to give it it's it's plain and ordinary usage.

54:17 - I would look to Webster's for that.

54:20 - Yeah, well, I think when everyone uses the word sense,

54:22 - it's a substance of preparation used in treating disease

54:27 - is in that word TBD.

54:29 - Yeah, Your Honor, the the,

54:32 - the Commonwealth Court used the dictionary definition of medicine

54:36 - as a substance or preparation use in treating disease,

54:38 - but they really focused more on Merriam Webster and the Commonwealth Court.

54:43 - That's that's where I just read it from.

54:44 - I mean, they may have used that also, but what's wrong with that?

54:48 - They focused more, Well, I'm

54:49 - looking at the Commonwealth Court analysis

54:50 - because we're asking to reverse the Commonwealth Court.

54:53 - Then they looked at something that affects well-being

54:59 - and they looked at a substance such as a drug

55:01 - or potion used to treat something other than disease.

55:04 - This is available without a prescription and it never had a test.

55:08 - It never.

55:09 - So what do you mean?

55:11 - That you keep saying that except that you have

55:15 - a physician who made this part of a treatment plan.

55:18 - I mean, who are who are we?

55:21 - On what basis would

55:23 - we decide that that was inappropriate?

55:27 - I mean, they are going to weigh expert opinions

55:31 - or do we take the word of the treating physician in the case?

55:35 - Well, first thing, arguably,

55:37 - it's not arguably factually, it was not part of the treatment plan.

55:40 - Oral ingestion of the substance was never part of the treatment.

55:43 - Keeps going back to that.

55:44 - Let's assume that he didn't orally ingest.

55:47 - Let's assume that what he did is he topically applied it.

55:50 - Would you still be here saying that that's not compensable?

55:54 - It's so hard, Your Honor, and I just have to be honest, honestly,

55:57 - it's so hard to determine what our

55:59 - response would have been to this case if it was just a topical application.

56:03 - Then if you're managing your position, is it not a medicine?

56:06 - Yes, it's a position you keep.

56:08 - You keep defaulting to this argument about topical versus oral,

56:12 - that your position is it's not a medicine and

56:16 - that seems to

56:17 - fly in the face of dictionary definitions.

56:21 - And Dr.

56:23 - Murphy's testimony to the WAC J, which the W C.J.

56:28 - credited, and I might add, and to the fact that you apparently

56:32 - might not have a problem if he used this topically.

56:36 - No, Your Honor, I still it's our position that CBD oil

56:39 - does not fall within under section three or 6.1 for counsel, if I may.

56:43 - Yes, we know the workers compensation Act is remedial

56:47 - and that it should be liberally construed to treat it

56:50 - humanitarian for

56:53 - you have a doctor giving a prescription

56:55 - as part of the medical treatment CBD.

56:58 - If your position that you would rather a doctor

57:01 - order oxycodone despite its addictive

57:06 - as opposed to CBD port.

57:09 - Given the facts of this case and what the Federal Government says

57:12 - in terms of this product? Yes, Your Honor, that is what we're saying.

57:14 - This product should not be used to treat an opiate issue.

57:18 - CBD oil that can be purchased without a prescription

57:21 - by anyone isn't the way to treat an opiate addiction.

57:25 - There are other ways that a doctor that answer is a utilization review.

57:30 - Question.

57:32 - Well, I think it

57:33 - goes more, Your Honor, to whether this just answer my question.

57:36 - Can that argument be raised in the utility utilization review process?

57:39 - Could it be raised? Absolutely. Okay.

57:41 - Absolutely. Yes. And why should we do it here?

57:43 - Because of the utilization review process, They might not see that issue,

57:48 - a utilization review organization reviewing the bland medical records

57:53 - and possibly a statement from the claimant might not see the issue

57:57 - that the claimant is using something off the shelf without a prescription.

58:01 - The utilization review organization might not see the issue

58:04 - that the claimant is not using it according to the prescription

58:07 - unless there's I'm sure you're I'm sure you're able counsel

58:11 - and you will point it out on the record and it will be able to be an appeal

58:14 - after the Commonwealth Court of the

58:15 - you are process in the you are determination

58:17 - and maybe someday we get the question of whether you are determination

58:20 - about this particular formulation of CBD oil, whatever it might be,

58:26 - assuming you create the record is not reasonable and necessary.

58:30 - Your Honor, that's

58:31 - something that can be done that I'm sorry, you've already done that.

58:35 - Have you appealed the decision of the utilization Review Committee

58:39 - At the time of the utilization review?

58:41 - It's my recollection that there was no use by claimant

58:44 - of that substance at that point in time.

58:47 - So, Mr.

58:48 - Kennedy, we do understand it's just a little bit of a tricky issue, but

58:52 - I assure you we're going to figure it out and we're going to hear from Mr.

58:56 - Schmidt next. Thank you, Your Honor. Thank you.

58:58 - Thank you. All.

59:07 - May it please The court I know this is a bit unusual,

59:10 - but I'm Mark Schmidt, counsel for Mark Schmidt.

59:14 - There's a movie about Schmidt

59:16 - there is, I think,

59:19 - very ironic to address

59:21 - Justice Robeson's argument about the utilization review.

59:25 - Yes, there was a utilization review.

59:27 - There was an I me there was a record review by Dr.

59:30 - Francis Lowe.

59:31 - Everything that an insurance company can do to challenge whether or not

59:35 - the use of CBD oil is appropriate in this case was done by the defendant.

59:41 - The utilization review was after

59:44 - the CBD regimen started and I am with Dr.

59:47 - Ilia was after the regimen of CBD started.

59:51 - They tried every avenue that is available

59:54 - when an item is an FDA drug.

59:57 - So there was a defense medical exam, yes.

59:59 - 097 Dr. Alia That was okay.

01:00 - 04.701 And was there a challenge on in suing then?

01:00 - 05.902 No, on causation.

01:00 - 07.604 There was no petition based on Dr.

01:00 - 08.438 Elias exam.

01:00 - 11.708 He was fully informed of the treatment plan.

01:00 - 14.243 He did not address it in his report.

01:00 - 19.749 Claimant's testimony live in front of the judge, stated that he informed Dr.

01:00 - 24.721 Ilia everything that was going on, and the reason for trying CBD

01:00 - 29.258 was specifically to avoid the dangers of increasing opioids,

01:00 - 33.696 of having surgery and being out of work for an unknown period of time.

01:00 - 36.399 The entire discussion was looking

01:00 - 42.005 for alternatives that could be used in that stead and enable

01:00 - 45.274 the claimant to continue working, which was successful.

01:00 - 49.679 The result of any treatment plan shouldn't be determined by the result

01:00 - 53.616 because doctors don't have a crystal ball, they don't know if it's going to work.

01:00 - 00.156 But if the doctor, in their experience and judgment, thinks it's a reasonable plan,

01:01 - 03.092 the insurance company has a process to challenge that.

01:01 - 04.961 They did every single one.

01:01 - 07.230 If they wanted more records from the doctor,

01:01 - 10.400 if they wanted more of an explanation, they could have asked.

01:01 - 11.601 They didn't.

01:01 - 15.438 They wrote back and said, this is not an FDA approved drug.

01:01 - 18.374 It's not a pharmaceutical. We're not paying for it.

01:01 - 23.346 The argument at the time of denial was solely that it's not a drug.

01:01 - 25.815 The petition that was in front of the judge

01:01 - 28.851 was not a review petition to get the definition.

01:01 - 30.887 It was a penalty petition.

01:01 - 35.324 So the judge looked at whether or not it was part of the plan of treatment.

01:01 - 38.428 And agreeably it must be part of the plan of treatment.

01:01 - 42.198 Claimants cannot be going to a gas station on the turnpike and saying, hey,

01:01 - 44.667 this looks good. I'm going to give this a try.

01:01 - 48.071 It was not a self administered treatment plan.

01:01 - 50.773 It was discussed with the doctor.

01:01 - 53.576 When a doctor writes a prescription, not a single pad of paper,

01:01 - 57.180 smaller than this, they're not writing the entire conversation.

01:01 - 59.982 They're writing what the person needs to get.

01:01 - 02.618 And the prescription itself says CBD

01:02 - 05.621 oil slash topical.

01:02 - 10.393 The conversation was try, try them, see what works best.

01:02 - 13.963 The initial prescription that was submitted to the defendant,

01:02 - 15.498 there was an oil

01:02 - 19.202 and there was a topical and claimant testified and the judge credited

01:02 - 23.272 that he tried each type in accordance with the packaging directions,

01:02 - 26.876 found the oil to be more effective and every receipt

01:02 - 30.980 after that the was only for the oil, not the topical.

01:02 - 35.518 So the whole argument about claimants doing their own treatment plan is false.

01:02 - 37.887 That is not part of the record.

01:02 - 40.256 The treatment must be in accordance with the plan

01:02 - 44.660 and if claimant is treating off plan utilization review,

01:02 - 46.462 that's not what this is.

01:02 - 48.598 But there was a utilization review.

01:02 - 49.665 They got one.

01:02 - 52.201 The doctor specifically addressed CBD.

01:02 - 53.336 They did appeal it.

01:02 - 55.138 It went in front of a different judge

01:02 - 57.640 who found the treatment reasonable and necessary.

01:02 - 00.877 So one judge defined it as a supply.

01:03 - 05.481 Another judge found the treatment plan was reasonable and necessary.

01:03 - 09.719 I the issue here is whether it's a medicine or a supply.

01:03 - 12.455 I believe that the court got it correct.

01:03 - 13.856 It fits under either destination.

01:03 - 17.260 You think Judge Wallace had the better of it?

01:03 - 22.632 Because, as she pointed out,

01:03 - 26.402 they define supplies so broadly

01:03 - 30.339 that it would devour it would it would encompass the medicine as well.

01:03 - 31.641 You just have meds.

01:03 - 34.777 The word medicine would just be mere surplus edge. Why?

01:03 - 38.948 Why shouldn't we adopt Judge Wallace's view and concurrence

01:03 - 42.919 that this was, in fact a medicine, saving supplies

01:03 - 47.290 for things like gauze, syringes, bandages that are in stock?

01:03 - 48.825 I absolutely agree.

01:03 - 50.726 And that was my argument in front of the judge.

01:03 - 53.362 And the judge instead defined it as a supply.

01:03 - 56.833 She explained why it was a supply, but my argument from day

01:03 - 00.136 one was that it's a medicine that falls under that definition.

01:04 - 05.474 Does supply encompass medicines the way it's presented?

01:04 - 07.143 It? Absolutely. Could.

01:04 - 11.013 The General Assembly chose to use two broad words

01:04 - 14.383 adjacent to each other medicine and supply.

01:04 - 18.487 Later, in that same section of the act, they used the word drug

01:04 - 23.226 and with drugs they imposed different conditions, rules and requirements

01:04 - 27.230 than they do for medicines rules of statutory construction.

01:04 - 31.467 The General Assembly knows the difference between the two words when they use them

01:04 - 35.171 in the same section of the act and apply different rules to them.

01:04 - 39.041 They knew what they were doing, the remedial intent of the act.

01:04 - 43.746 The general Assembly wanted injured workers to have available items

01:04 - 47.049 that could address their symptoms, whether it was pain, whatever

01:04 - 50.786 their injury might be, address their symptoms, improve their function

01:04 - 54.323 and hopefully reduce the duration of disability

01:04 - 56.993 so that those injured workers can get back to work.

01:04 - 00.663 And in the long run, that would actually save insurance companies money

01:05 - 05.268 because using the phrase off over the counter,

01:05 - 08.738 not in the sense of a drug, but things that an injured worker can get

01:05 - 12.241 without the need for a prescription are generally going to be cheaper

01:05 - 17.179 than what the pharmaceutical companies charge for the dangerous opioids.

01:05 - 20.283 And if the concern is the danger of CBD,

01:05 - 25.621 there's two ways to address that legislation or utilization review.

01:05 - 28.658 They did the utilization review route and the general

01:05 - 31.928 Assembly hasn't come in and said this is illegal.

01:05 - 35.798 The fact that the argument that this can be purchased in gas stations

01:05 - 38.701 shows that it is legal, you can get it anywhere.

01:05 - 43.105 So if it's that dangerous, why didn't the General Assembly step in equating it

01:05 - 48.911 to medical marijuana is a false analogy because marijuana was illegal.

01:05 - 51.747 That's why they had to go through that whole process

01:05 - 55.051 that they didn't need to do for CBD oil.

01:05 - 56.485 Can you address can you

01:05 - 00.756 address the Commonwealth Court's costs containment analysis that somehow

01:06 - 04.694 your health care provider who made this part of the treatment plan

01:06 - 09.398 is not obligated to document the efficacy of it?

01:06 - 10.099 He did.

01:06 - 11.934 And that was not that's not what I'm asking.

01:06 - 12.568 The Commonwealth Court

01:06 - 17.907 seems to seem to take the position that because you purchased the CBD oil,

01:06 - 22.378 you don't have the cost containment regulations don't apply at all.

01:06 - 23.279 True.

01:06 - 26.048 So you have to separate with the providers duties

01:06 - 29.051 where and what the injured workers duties are.

01:06 - 32.621 The provider did fully fulfill his duties.

01:06 - 37.760 He presented his treatment records, his bills, his treatment plan to the insurer.

01:06 - 41.864 They did the utilization as a pre as a precondition to payment, correct?

01:06 - 46.302 Well, yes, because once you filed a request for utilization review,

01:06 - 50.272 I think the I think the statute actually requires that before

01:06 - 54.176 before they can deny payment, the provider has the right.

01:06 - 56.078 So it's pre utilization review, Correct.

01:06 - 00.449 It's information that a provider provides to the insurer, not the treatment plan.

01:07 - 03.819 So the insurer can decide whether to seek utilization review.

01:07 - 04.320 Correct.

01:07 - 06.088 Did your provider do that? Yes.

01:07 - 08.090 And that's why they filed utilization.

01:07 - 10.760 Why did that? That's that's the second issue in this appeal.

01:07 - 13.763 And the Commonwealth Court seemed to think that it wasn't required

01:07 - 18.200 because the utilization review petition was separate from the penalty petition.

01:07 - 20.703 It was addressed in separate litigation.

01:07 - 22.571 They didn't appeal that determination.

01:07 - 25.341 I read the Commonwealth Court's opinion is a little bit broader than that.

01:07 - 29.011 They seem to suggest that because you purchased it and the doctor

01:07 - 35.551 didn't give it to you somehow, some way, you have no obligation to provide this.

01:07 - 37.620 The costs to comply with the cost contained regulations

01:07 - 42.725 because you're not a provider and ergo the doctor had no obligation either.

01:07 - 45.294 If that's the interpretation, I would disagree with that.

01:07 - 45.961 Okay, good.

01:07 - 48.964 That's okay. I was hoping you would say that

01:07 - 50.966 because I don't see that as the interpretation.

01:07 - 54.970 I see the provider defined by section 109 of the Act

01:07 - 58.074 and the injured worker are separate entities with separate duties.

01:07 - 02.378 The injured workers duty when they incur in out-of-pocket costs

01:08 - 06.148 is to supply prima facia documentation

01:08 - 10.386 that the cost was incurred for something that is part of the plan of treatment.

01:08 - 13.389 Injured workers are not just out there doing it on their own.

01:08 - 18.861 That was the prescription and aid report and claimant's testimony

01:08 - 22.198 and the receipt that prima facia documentation

01:08 - 25.167 was presented to them to show it was part of the treatment plan.

01:08 - 26.936 Claimant incurred the cost.

01:08 - 30.272 Claimant submitted it to the defendant for reimbursement,

01:08 - 32.475 the sole basis for denial.

01:08 - 35.878 It's not an FDA pharmaceutical approved drug.

01:08 - 37.947 That was the basis for denial.

01:08 - 42.885 And that's why the petition was a penalty petition as opposed to a review,

01:08 - 46.655 a modification of prospective utilization review.

01:08 - 52.094 It was because of the reason for denial that the type of petition was chosen.

01:08 - 55.197 Okay,

01:08 - 55.998 I think you.

01:08 - 58.100 Any other questions?

01:08 - 00.269 All right. You want to wrap up, sir?

01:09 - 04.473 Basically, the words of the act are medicine and supplies.

01:09 - 06.342 It is not drugs.

01:09 - 09.145 The dangers associated with CBD require

01:09 - 12.948 a legislative remedy or a utilization review.

01:09 - 14.783 That's Not what we're here for today.

01:09 - 18.521 It does fit within the broad definition of medicine and supplies

01:09 - 20.256 as what, an oatmeal bath.

01:09 - 22.825 We're now live Arab bath.

01:09 - 26.562 They would all fit within that definition if it is part of the doctor's

01:09 - 30.065 treatment plan and the insurance companies have remedies

01:09 - 33.068 to address that if they think they're not obligated to pay

01:09 - 37.072 utilization review enemies, there are safeguards in the act.

01:09 - 37.506 All right.

01:09 - 40.676 Thank you. Thank those.

01:09 - 43.646 The next case is Coleman V Parkland School District.

01:09 - 44.380 Parkland School

01:09 - 48.517 District is a public school district located in Lehigh County, Pennsylvania.

01:09 - 53.355 Coleman is an individual who resides in the school district.

01:09 - 56.158 On October 26 of 2021, the school board held

01:09 - 00.362 a public meeting pursuant to the Sunshine Law in Pennsylvania.

01:10 - 05.768 The school district in the board posted its agenda no later than 24 hours prior

01:10 - 09.104 to the meeting, listing the agenda items

01:10 - 11.774 on the date of the meeting.

01:10 - 15.878 The school board moved to add an agenda item during the meeting.

01:10 - 18.781 That agenda item

01:10 - 22.451 revolved around a collective bargaining agreement

01:10 - 26.689 that would just been made that day between the school,

01:10 - 29.725 the school board and the teachers

01:10 - 33.729 the district requested and a vote was held, placing

01:10 - 38.601 this collective bargaining agreement item on the agenda.

01:10 - 41.403 Now, both sides in this case agree

01:10 - 46.308 that in order to add an item to the agenda without violating the sunshine law

01:10 - 49.411 and there are three exceptions listed in the law, there are.

01:10 - 53.282 The first is if there's emergency business that can be added.

01:10 - 57.920 The second involves business arising within 24 hours before the meeting.

01:10 - 01.890 That is de minimis in nature and does not involve the expenditure

01:11 - 06.729 of funds or entering into a contract or agreement by the agency.

01:11 - 10.032 And the third is business arising during the meeting.

01:11 - 15.170 If a resident or taxpayer brings a matter of agency business

01:11 - 18.841 and the matter is de minimis in nature and does not involve

01:11 - 23.846 the expenditure of funds or entering into a contract or agreement.

01:11 - 24.747 The issue

01:11 - 27.850 in this scenario is a fourth paragraph that's listed

01:11 - 32.288 under the exceptions of the Sunshine law in Pennsylvania.

01:11 - 36.558 The fourth paragraph is titled Changes to the Agenda

01:11 - 41.764 and this paragraph specifically states that upon majority vote of the individuals

01:11 - 47.503 present in voting during the conduct of the meeting, an agency may add a matter

01:11 - 54.176 of agency business to the agenda and take official action on the matter.

01:11 - 58.080 The school district argues that this paragraph, paragraph

01:11 - 01.450 four, permits the school board to take action

01:12 - 06.055 on the collective bargaining agreement issue as the majority of members

01:12 - 11.293 that were present in voting voted to add it to the agenda.

01:12 - 16.699 Coleman argues that this fourth paragraph is not designed to allow the school board

01:12 - 21.804 to add last minute items based on the agreement of the members

01:12 - 25.841 that are present, but that this fourth paragraph exists

01:12 - 29.845 to give the school board the ability to add an item to the agenda

01:12 - 34.616 under the previous three paragraphs that I detailed above.

01:12 - 36.852 And they're asking the court to make a determination

01:12 - 42.291 how does this fourth paragraph apply to this scenario?

01:12 - 44.360 So let's go to the court.

01:12 - 46.395 Good morning, Your Honor. May have pleased the court.

01:12 - 50.099 My name is Timothy Edward Gills back, and I have the pleasure of representing

01:12 - 52.601 the Parkland School District.

01:12 - 53.235 The issue, as

01:12 - 56.472 noted in this case, is whether or not there are four stand alone

01:12 - 00.242 exceptions to the 24 hour notice required to pull the microphone up a little bit.

01:13 - 03.145 I think you're a little bit taller than the up advocate.

01:13 - 05.013 There we go. Was that better for Your Honor?

01:13 - 06.582 Thank you. Perfect.

01:13 - 09.585 And then you don't have to slouch.

01:13 - 11.153 Thank you, Your Honor.

01:13 - 15.023 And we believe that both the text of the statute, the structure of the statute,

01:13 - 19.962 as well as the legislative history, confirm four stand alone exceptions.

01:13 - 21.864 Let's start with the text of the statute.

01:13 - 25.868 The text of the statute in subject provides that subsection.

01:13 - 29.905 The exceptions are in B, C, D,

01:13 - 34.309 or E in the traditional rules of statutory construction.

01:13 - 36.845 The word or means if there's a list of items.

01:13 - 39.815 Any one of those will meet the requirement.

01:13 - 42.050 And therefore, the only other way to interpret

01:13 - 45.888 that, as has been proposed by both the State, both the Commonwealth Court

01:13 - 49.758 as well as appellants is, is to replace the word war with the word act.

01:13 - 51.427 And that could mean one of two things.

01:13 - 54.530 On one hand can mean and in all four of those need to be met.

01:13 - 56.031 Clearly, that's not the case.

01:13 - 01.136 Everybody agrees that any one of the other three by themselves is enough.

01:14 - 04.940 But instead, what they have proposed is sort of reading it as a word and

01:14 - 08.477 but more of a sort of, well, you give me one of those three

01:14 - 10.212 and you've got to meet this third requirement.

01:14 - 12.614 But the statute doesn't say anything like that.

01:14 - 16.185 There's nothing in the statute that would remotely suggest that's the case.

01:14 - 17.152 In addition to that,

01:14 - 21.089 if you look at the structure of the statute that confirms that understanding,

01:14 - 24.860 because while it might be rational to look at subsection

01:14 - 28.530 E and say, well, wait a minute, that perhaps is a mechanism

01:14 - 32.901 to apply these other three exceptions, subsection F very clearly

01:14 - 37.306 is a mechanism by which you apply the exceptions.

01:14 - 42.010 Subsection E and subsection F is not listed in subsection A.

01:14 - 45.848 So what you have is on the one hand you have subsection F, everybody agrees

01:14 - 47.483 that's a procedural mechanism.

01:14 - 48.150 On the other hand,

01:14 - 51.987 you've got subsections B, C, and D, Those are clearly exceptions.

01:14 - 54.990 Subsection E is treated in the same way

01:14 - 58.594 as the exceptions, not the procedural requirements.

01:14 - 02.164 That specifically talks about having an attitude that can only

01:15 - 06.768 be expressed as possible.

01:15 - 08.403 I'm sorry, Your Honor.

01:15 - 09.872 Subsection F Yes.

01:15 - 12.875 Talks about items added to the agenda, right?

01:15 - 17.913 Yes. At the meeting and only e speaks specifically to

01:15 - 24.286 items added to the agenda. Yes.

01:15 - 27.990 I think as I interpreted it, subsection F is what you have to do.

01:15 - 33.695 If if an item is added to the agenda of the list of B through E, Yes.

01:15 - 36.632 Only E speaks about adding an item to the agenda.

01:15 - 40.168 There's nothing in B, C, and D that talks about altering

01:15 - 43.472 the agenda.

01:15 - 44.172 I understand.

01:15 - 46.375 You make sure I understand. I hear your question, Your Honor.

01:15 - 50.345 And I think that and on top of that, F talks about in this section

01:15 - 54.616 adding an item to the agenda in this section, correct?

01:15 - 55.617 Right.

01:15 - 59.021 But again, B through B,

01:15 - 01.990 C, and D, do not talk about altering the agenda.

01:16 - 04.993 Only E talks about altering the agenda.

01:16 - 06.094 Correct. I understand.

01:16 - 10.666 And I think that the reason that they do that is that subsections A, B, A, B, C,

01:16 - 14.670 and D speak of various options of the types of items you can do.

01:16 - 18.574 But subsection E provides a mechanism and in fact it's the only mechanism filed

01:16 - 19.708 with the board itself

01:16 - 23.178 can amend its own agenda should it choose to do so at a meeting.

01:16 - 25.581 But you said is independent.

01:16 - 27.482 We believe he is independent. Yes, I know.

01:16 - 31.320 That's a I'm trying to understand that because you you went to f.

01:16 - 35.891 Yes. And F speaks in terms of items added to the agenda.

01:16 - 36.992 Correct.

01:16 - 41.964 B, C and D do not require any alteration of the agenda.

01:16 - 44.600 Well, I don't know that the board

01:16 - 46.401 I think the board would have to amend that

01:16 - 50.072 if you were going to take an action under B, C or D, then what's the point?

01:16 - 51.673 What's the point of B?

01:16 - 56.111 What's the point of B, C, and D if E is covers all of them?

01:16 - 59.448 No, I really think that's a fair question.

01:16 - 02.517 And our position is that ultimately that's an issue that should be said

01:17 - 05.387 to the state legislature. And I I'm going to push back on that.

01:17 - 06.655 Go ahead.

01:17 - 10.926 I do have problems with the Commonwealth Courts wrestling with what we're means.

01:17 - 11.526 Sure.

01:17 - 17.399 But in light of E and in light of EF, I wonder whether there was a Scribner's

01:17 - 22.104 error of some sort here enlisting B through E.

01:17 - 25.340 And maybe it should have been B through D

01:17 - 26.675 because of

01:17 - 30.579 the of B, C, and D are specific things.

01:17 - 33.015 Specific topics.

01:17 - 35.951 E is not the type of thing you would

01:17 - 40.856 we would expect to be in a list like that is a procedural device

01:17 - 43.992 that would seem to cover the items that preceded it in the list.

01:17 - 48.063 And you started with the idea of when items are in a list and there's or

01:17 - 49.965 they're all supposed to be true that independently.

01:17 - 54.102 But that list has to be similar in kind and subject

01:17 - 59.207 and standard E is E does not look like B, C or D.

01:17 - 01.843 Excuse me, Your Honor, I, I agree, is

01:18 - 04.846 clearly much broader than the other the other exceptions.

01:18 - 10.519 But the the issue, of course, you have is that, you know, the state legislature,

01:18 - 13.388 this wasn't simply an issue of they made a mistake

01:18 - 15.757 in drafting the statute because subsection E

01:18 - 19.528 is specifically listed in subsection eight, subsection F is not.

01:18 - 23.432 And I think that's what the say this person is actually going to say.

01:18 - 27.002 Why are you assuming that from the state?

01:18 - 29.771 Because if if if the purpose of subsection E

01:18 - 34.476 is as a procedure, just as subsection F is a procedure, those are separate.

01:18 - 38.447 That doesn't it would not be included in the specific language

01:18 - 42.584 that says you got it, you give 24 hours notice unless and then there's

01:18 - 45.821 this list of these subsections and it includes all of those follow up.

01:18 - 51.626 And I'm sure in a

01:18 - 54.663 we read except as provided in subsection

01:18 - 57.833 B, C, D, or E, an agency member.

01:18 - 02.871 So why is it in Quincy, the bill

01:19 - 05.974 that the General Assembly

01:19 - 09.644 would have given us both substance and procedure in that litany?

01:19 - 12.380 In other words, that

01:19 - 16.551 B, C, and D spoke to substantive exceptions, right?

01:19 - 19.187 And then E except as provided.

01:19 - 22.591 So E is providing a process

01:19 - 24.626 for this.

01:19 - 25.393 Understood.

01:19 - 29.598 But the the where you run into a problem with that is, first of all, that's

01:19 - 33.869 not what the statute says what the what the way you were reading it that way.

01:19 - 38.206 What you're really saying is except as provided by subsection B and

01:19 - 42.310 or C and E or D and he essentially what you're saying is

01:19 - 46.148 they would have to meet both the requirement to be C or D

01:19 - 51.286 and meet the requirement of E, but that's not what the statute says.

01:19 - 55.590 And certainly and again, I think the penalty makes some

01:19 - 59.060 raises concerns about public policy and the like that

01:19 - 03.131 if in fact the state legislature made a mistake, then go back and fix it.

01:20 - 06.301 And in fact, the petitioner, the plaintiff in this case is uniquely

01:20 - 07.302 in a place to do that.

01:20 - 08.970 He is a member of the state legislature, if you want

01:20 - 11.973 if he felt the court that the state legislature made a mistake,

01:20 - 12.874 they can amend it and go.

01:20 - 16.044 For example, the question goes to the question of whether the statute

01:20 - 21.383 is ambiguous, which was written and and and the

01:20 - 24.152 you look at the entire section, you don't look at the one word.

01:20 - 28.056 You have to look at the section as a whole. Sure. And

01:20 - 30.258 I'm having a hard I'm having a difficult time.

01:20 - 33.061 And Lord knows I don't find ambiguity too often in statutes.

01:20 - 35.797 But this statute seems

01:20 - 39.167 there's at least a very good argument of different interpretations

01:20 - 43.104 of this statute, given how it is set forth, given

01:20 - 47.642 how f is worded, given how it is not worded the same way as B, C,

01:20 - 53.815 and D, just the just the just looking at the entirety of the statute,

01:20 - 59.387 why is it not reasonable to say that it's ambiguous

01:20 - 02.691 and we apply the principles of statutory construction to determine

01:21 - 05.293 what the legislators true legislature intent was? Sure.

01:21 - 09.097 And if you go to that point and that so your primary argument

01:21 - 10.031 is it's not ambiguous.

01:21 - 13.101 I do not believe it is ambiguous simply because it's not ambiguous.

01:21 - 17.572 What was the purpose of having B, C, and D? You didn't need it.

01:21 - 18.173 You just have

01:21 - 21.743 E that and that that devours everything, right?

01:21 - 26.715 If you're right and there's no ambiguity, then what?

01:21 - 28.016 Why would you need these?

01:21 - 28.917 B, C, and D?

01:21 - 32.754 Well, I think the short answer is I think certainly the legislature may have

01:21 - 33.154 said, well,

01:21 - 34.823 these are the things we anticipate this

01:21 - 37.826 this will occur under these other kinds of circumstances.

01:21 - 41.730 But also leaving the reality that there may be circumstances

01:21 - 43.198 outside of those three remedies.

01:21 - 46.701 It could I mean, pardon me, but what am I missing?

01:21 - 50.705 So if you're right and I was thinking when I was reading Judge McCullough's

01:21 - 54.776 decision, I was thinking this,

01:21 - 57.078 if you're right and E

01:21 - 00.882 is doing what you're talking about here, what would I be?

01:22 - 01.683 Correct it.

01:22 - 05.754 You just don't need B, C or D at all.

01:22 - 07.155 It would be like saying

01:22 - 12.861 except as provided in.

01:22 - 15.330 Well, I'm not coming up with a hypothetical, but

01:22 - 19.634 these, they've sketched out these three scenarios B, C, and D,

01:22 - 22.971 and then the or is this other category

01:22 - 26.007 E, which is everything.

01:22 - 28.677 A majority can do whatever it wants at any time.

01:22 - 29.411 All right.

01:22 - 34.115 I understand your concern, Your Honor, and sure, that could be that is a concern.

01:22 - 37.919 The one subsection does talk about concerns raised by the public,

01:22 - 40.889 presumably, that something that the state legislature had concerns about.

01:22 - 44.159 And I think, too, if you if you move to the phrase

01:22 - 47.562 of it's ambiguous, we start to look at the legislative history.

01:22 - 50.832 The only reference anywhere in the legislative history

01:22 - 53.935 about the number of exceptions is when this was reported out of committee.

01:22 - 58.239 And they said for exceptions that if there's there

01:22 - 01.242 is conversations about in general terms, that there's exceptions.

01:23 - 05.180 But the only specific reference anywhere in the legislative history

01:23 - 08.316 about the number of exceptions is one that's reported out of the committee,

01:23 - 11.353 I believe it was in the House in which they said, let's try one more committee's.

01:23 - 13.955 Go, go ahead. So

01:23 - 14.522 under your

01:23 - 17.892 reading and tell me if I'm wrong about your reading,

01:23 - 23.164 under your reading and the dissents, reading

01:23 - 26.234 under the rubric of E,

01:23 - 27.902 the board could by mid by

01:23 - 31.239 simple majority, do well, change the agenda in any way.

01:23 - 34.242 It deemed appropriate.

01:23 - 40.315 And in period and therefore

01:23 - 43.585 all the the pains to which

01:23 - 47.722 the General Assembly went in enumerating B, C, and D

01:23 - 50.025 were a complete waste of time

01:23 - 54.529 and essentially entirely meaningless.

01:23 - 54.829 Right.

01:23 - 58.466 That if you read the text of the statute, that's absolutely 100% correct.

01:23 - 01.836 I think what you're hearing, counsel, is

01:24 - 04.906 individuals on this court or textualist who say we don't want to look

01:24 - 08.143 at the General Assembly's intent, We want to look just at the text.

01:24 - 12.113 Yet the clear intent of this particular statute was for notice

01:24 - 13.381 to be given to the public.

01:24 - 16.651 What justice work is pointing out that if we accept what your version

01:24 - 20.722 of this particular incident is or your reading is each the entire statute,

01:24 - 23.925 because it circumvents A, B, C, and D, correct.

01:24 - 28.830 And your position is that probably it's textually speaking, That's 100% correct.

01:24 - 32.367 But the General Assembly should fix this because it's their screw up.

01:24 - 33.501 Fair enough, Your Honor.

01:24 - 35.170 Yet that is essentially the position I'm taking.

01:24 - 37.338 So you take that position.

01:24 - 41.576 I'm sorry. Before you take that. So

01:24 - 42.544 could you

01:24 - 47.115 look at it from a different perspective that even if you are a textualist

01:24 - 50.552 and you're reading this exactly as written, that e

01:24 - 53.621 does not really mean

01:24 - 56.391 that the items in a

01:24 - 00.762 through D would ever have to be included in an agenda,

01:25 - 05.834 but rather would be covered under the situations that arise on A,

01:25 - 10.138 B, C, and D, and then reflected in the minutes

01:25 - 14.275 post meeting rather than ever being added to the agenda.

01:25 - 18.279 Is that a plausible reading?

01:25 - 21.449 I believe I believe you could read it that way, yes.

01:25 - 23.952 In the sense of I.

01:25 - 24.819 Excuse me.

01:25 - 26.554 Yeah, I believe you could read it that way.

01:25 - 29.324 That is sort of we're changing the agenda. The other things may come up.

01:25 - 30.658 They may do something with them.

01:25 - 35.597 They don't necessarily need to be part of an amended agenda.

01:25 - 39.567 They're just handled during the meeting to be reflected later in the minutes.

01:25 - 41.669 Is is that is that reasonable?

01:25 - 42.237 Sure, sure.

01:25 - 46.741 And especially with respect to subsection D,

01:25 - 47.208 you know,

01:25 - 51.246 and having sat at numerous school board meetings, the public raises a concern.

01:25 - 53.081 It very clearly says we can

01:25 - 56.084 the board can directed administrator to go do something.

01:25 - 57.952 Sure. That would not be an amendment to the judge.

01:25 - 01.189 And if that's the case, then maybe there is no Scribner's error

01:26 - 06.494 and maybe there's no ambiguity, except you have to deal with that.

01:26 - 09.430 Well, I was only getting to e,

01:26 - 14.202 I mean, I, I think that's a fair I think that's a fair reading except for F.

01:26 - 18.706 The problem with F is it makes it look like everything in B through

01:26 - 24.679 E is added to the is an amendment to the agenda.

01:26 - 26.981 But yeah,

01:26 - 31.052 I believe, Your Honor, that would be what if action is taken?

01:26 - 35.089 And I guess the question becomes, yeah, if it is specifically says additive

01:26 - 39.327 and yes, the minutes show reflect it, but it also says added to the agenda.

01:26 - 40.261 Right.

01:26 - 42.730 But it also talks under the section. Sure.

01:26 - 43.765 But I'd also say but

01:26 - 45.833 also the other component comes up as if action

01:26 - 47.769 and I guess the other component that comes up with that

01:26 - 51.472 too, is specifically when I'm looking at subsection

01:26 - 54.842 D, there may not be a formal board action, it might more be

01:26 - 56.644 go do something to the administration.

01:26 - 56.945 I think.

01:26 - 01.482 So that's a you know, my interpretation of it is

01:27 - 02.951 I don't believe it's ambiguous.

01:27 - 05.954 I think that it they use the term more and that that means

01:27 - 09.457 or that means what anything in that list is appropriate.

01:27 - 13.895 And the cases that are cited both by the Commonwealth Court and by appellate,

01:27 - 18.600 they talk about sort of using the word war to mean and or not in this context

01:27 - 22.503 in which we're in a list of exceptions, It's instead when we're in a context

01:27 - 26.307 in which if the specific case were potential penalties

01:27 - 29.911 that could be applied and I apologize, forget the name of the case,

01:27 - 32.513 but there were specific penalties and the court basically said, okay, yeah,

01:27 - 35.416 you can put one or all of these in that context.

01:27 - 36.417 That's a different context.

01:27 - 39.954 In this context, we're talking about exceptions to a general rule.

01:27 - 44.359 And when you use a language or the statutes vary

01:27 - 45.860 in terms of statutory interpretation,

01:27 - 50.198 that means or means or any one of those four would meet the requirement.

01:27 - 54.769 And to the extent that there are concerns, that sort of that exception interpreted

01:27 - 58.172 that way would would sort of eat up the rest of it.

01:27 - 01.042 I think that's a legislative issue that goes back to the legislature

01:28 - 04.112 and says, well, okay, you've done this if it's not working

01:28 - 07.782 or if there are these parade of horribles that that some of the amicus printed out

01:28 - 12.520 that might happen, if boards can do this sort of thing, then that then the the

01:28 - 15.523 the the way to fix that is go to the state legislature.

01:28 - 18.359 Lastly, I would note, especially in the context of school boards,

01:28 - 21.296 these are elected officials at the end of the day,

01:28 - 24.532 if they start doing all kinds of crazy things at board meetings and adding things

01:28 - 27.302 without people showing up, they're subject to the electorate.

01:28 - 31.306 And prior to 2021, there was no limits on the ability to do anything.

01:28 - 34.575 There was no there was no requirement to provide notice prior to 2021.

01:28 - 35.710 So the state legislature

01:28 - 39.580 created a clear, a clear general rule, but clearly created exception.

01:28 - 44.085 And I and I believe that subsection E creates an exception that permits for

01:28 - 47.155 the very real reality that there are times things will come up

01:28 - 51.359 that aren't considered in the other exceptions.

01:28 - 51.826 Something.

01:28 - 54.829 Any other questions? Thank you, Your Honor.

01:28 - 55.630 Thank you.

01:28 - 59.033 Let's hear from the opposing counsel, Mr.

01:28 - 01.302 Sneed.

01:29 - 02.003 Thank you, Justice.

01:29 - 04.872 I'm going to lower this because I'm much shorter.

01:29 - 06.107 My name is Javits.

01:29 - 09.110 Now I'm here on behalf of Appellate Senator Jerry Coleman.

01:29 - 12.280 And I notice that Chief Justice

01:29 - 15.883 Todd mentioned justices in the courtroom and some portraits outside.

01:29 - 17.852 I wanted to reference a different justice.

01:29 - 21.055 Justice Brandeis, who once said that sunlight is said to be

01:29 - 24.392 the best of disinfectants and the electric light, the best policeman.

01:29 - 26.561 And this is what this case is about here today.

01:29 - 28.563 It's about open meaning requirements.

01:29 - 29.731 And the Pennsylvania sunshine

01:29 - 33.368 just won over Justice Wecht simply by quoting justice friend.

01:29 - 34.502 Yeah, Yeah.

01:29 - 38.506 That's that's a that's a good rule of thumb,

01:29 - 38.806 if you

01:29 - 42.377 could, when Brandeis was a Harvard Law School, speaking of light,

01:29 - 47.582 that the lighting was so bad that his eyesight was damaged then.

01:29 - 51.085 And until he recovered, he had to have another student, a friend,

01:29 - 56.124 read books to him, and he still collected the highest GPA ever.

01:29 - 57.091 There.

01:29 - 57.692 That's impressive.

01:29 - 58.459 It's only Harvard.

01:29 - 01.562 So, you know, counsel, counsel, if you can weave in a quote from Oliver

01:30 - 06.100 Wendell Holmes, I think you can just walk out the door and drop make a fortune.

01:30 - 08.636 I didn't I don't have it in my back pocket, Your Honor.

01:30 - 09.837 I apologize.

01:30 - 12.840 You can submit a post argue.

01:30 - 13.441 Fair enough.

01:30 - 18.279 And I think the the issue here today is, is is what Justice

01:30 - 22.784 Roberts and Justice Wecht and others mentioned is that appellant's

01:30 - 27.755 argument really renders subsections B through d of the Sunshine Act of two

01:30 - 32.093 because it requires a majority vote of all the interviews present

01:30 - 38.699 in Section B and C and D, do not have that the first

01:30 - 39.367 right in

01:30 - 42.570 actually subsections B, C, and D have no requirement or

01:30 - 45.773 no procedure and no process about how an agenda is amended.

01:30 - 48.443 Only subsection E does.

01:30 - 52.880 And so subsection E requires that the reasons for amending agenda be announced.

01:30 - 54.415 I don't read it that way.

01:30 - 00.421 I read it that B gives you a special exception to amend your agenda

01:31 - 05.793 when you have an emergency meeting on a matter of agency business relating to

01:31 - 09.730 and the act specifies very clearly in subparagraph B,

01:31 - 14.836 c allows you to add business within 24 hours before the meeting

01:31 - 18.506 as specified in Section C and D

01:31 - 21.709 allows you to add business arising during the meeting.

01:31 - 25.313 If you meet the requirements of subsection D,

01:31 - 28.115 but only E requires upon

01:31 - 31.118 majority vote of the individuals present.

01:31 - 35.590 So whether or not he may include the items

01:31 - 39.460 included in B, C, or D or not, it's

01:31 - 43.064 contingent on you getting a majority vote of the members present.

01:31 - 44.131 Well and Justice Monday.

01:31 - 47.134 I would respectfully submit that all agencies can only act

01:31 - 50.137 through a majority vote of a quorum that's governing body.

01:31 - 51.138 So absolutely.

01:31 - 58.246 But you can have less than a majority vote say, saying we don't want to hear it.

01:31 - 58.779 What right.

01:31 - 02.450 But but in order for emergency business to be conducted under subsection B,

01:32 - 05.486 a majority of the board has to say, we want to take this action

01:32 - 09.357 in order for any action to be taken under subsection

01:32 - 13.361 C, a majority vote of the members present have to take action on this same thing

01:32 - 17.999 with subsection D, and I think subsection C really highlights and this particular

01:32 - 21.802 factual scenario the problems with appellants interpretation.

01:32 - 26.307 So subsection C has just as many pointed out, provides

01:32 - 29.477 that for business that arises within that 24 hour period

01:32 - 32.947 between when the agenda is posted publicly and when the meeting occurs.

01:32 - 38.452 An agency can't take any official action on that unless it's de minimis in nature.

01:32 - 41.022 It doesn't involve a contract or an agreement

01:32 - 43.891 and it doesn't involve the expenditure of agency funds.

01:32 - 46.894 In this particular case, the record before this court

01:32 - 50.565 reproduced record page 79 A provided that

01:32 - 53.501 the reason why the collective bargaining agreement at issue here

01:32 - 57.171 wasn't on the agenda was because that day the teachers union had voted

01:32 - 58.172 to approve it.

01:32 - 00.908 And so it arose in that 24 hour period.

01:33 - 05.680 So if subsection C prevented the district from taking any action on this collective

01:33 - 07.715 bargaining agreement, because, one, it's a contract to

01:33 - 10.718 it does involve the expenditure of funds because there's a 2.9%

01:33 - 12.053 pay increase in there.

01:33 - 13.921 And three, it's certainly not de minimis in nature

01:33 - 16.057 because it involves the terms conditions of employment

01:33 - 19.160 for hundreds of district employees.

01:33 - 20.194 The district was

01:33 - 22.930 could not take any action under subsection C,

01:33 - 26.701 So to Justice Wax Point subsection, you would swallow the whole

01:33 - 31.572 you know, it would render completely this provision under subsection C meaning.

01:33 - 34.208 So why isn't that an issue for the the General Assembly to take up

01:33 - 37.345 since they were the ones who drafted it and they basically drafted a statute

01:33 - 42.083 that provides for one subsection as well the rest of the entirety of the whole.

01:33 - 45.519 In other words, why are we being asked to fix their mistake?

01:33 - 48.589 Well, Your Honor, I think the problem is

01:33 - 50.524 that's what this court is designed to do.

01:33 - 54.762 Unfortunately, that to a certain extent, we can only do so if we find an ambiguity

01:33 - 55.663 in the text of the statute.

01:33 - 56.831 The statute is pretty clear.

01:33 - 00.368 Well, I think every member of the Commonwealth Court below found that

01:34 - 02.069 it was ambiguous in some way.

01:34 - 04.805 So the majority certainly found it was even the dissent.

01:34 - 09.043 Just Judge McCullough's dissent noted that there were clearly some irregularity.

01:34 - 11.112 Tell me what you find ambiguous.

01:34 - 14.448 Well, I think the problem is that is just that is how do you interpret

01:34 - 17.518 subsection E while giving any effect to subsections

01:34 - 20.254 B, C, or D, D, But that's not an ambiguity.

01:34 - 23.257 I mean, that leads to an absurd result, right?

01:34 - 26.527 And under the rules of statutory construction,

01:34 - 28.195 we certainly can't have an absurd result.

01:34 - 30.064 That's not what the general is actually actually,

01:34 - 32.933 under the rules of statutory construction, you can't have an absurd result

01:34 - 34.068 as long as the statute is.

01:34 - 35.536 As long as the General Assembly passed

01:34 - 39.373 an absurd statute, you can have an absurd result.

01:34 - 40.875 Fair enough, Your Honor.

01:34 - 44.378 I mean, you don't get to the OMB.

01:34 - 44.845 Be careful.

01:34 - 47.882 You don't get to the statutory construction presumption

01:34 - 49.717 of absurdity against absurdity.

01:34 - 53.521 Unless you apply the rules of statutory construction, you don't apply

01:34 - 57.391 the rules of statutory construction unless the statute is ambiguous.

01:34 - 58.693 Correct, Your Honor.

01:34 - 03.764 And what I would say to that is the under

01:35 - 06.100 the rules of statutory construction, the way you interpret

01:35 - 09.870 the plain language of a statute is within its surrounding context.

01:35 - 15.910 And so going back to subsection A of seven one, 2.700 12.1,

01:35 - 19.847 it doesn't make the surrounding context doesn't make any sense.

01:35 - 23.784 The entirety of Section 712.1 provides reasons

01:35 - 26.787 for amending an agenda and a process for amending an agenda.

01:35 - 33.561 Yeah, I want to ask you about the agenda thing.

01:35 - 36.897 Who creates the agenda for the school board?

01:35 - 40.534 So I think that very likely differs between each individual district.

01:35 - 44.705 I would suggest thinking about this school board who who creates the agenda.

01:35 - 46.707 I don't know the answer to that, but I would suggest it's

01:35 - 48.909 probably a combination of the superintendent in the school board.

01:35 - 52.246 President. Right. It's not the board itself.

01:35 - 55.683 So if that's true,

01:35 - 00.321 maybe is a standalone because the board doesn't create

01:36 - 04.959 the agenda the board meets, it confers, it deals with business.

01:36 - 09.130 So it maybe the statute B, C, and D

01:36 - 14.201 is sans agenda has nothing to do with the agenda.

01:36 - 19.707 It just allows the board to take action off agenda under certain circumstances.

01:36 - 22.443 And if those circumstances aren't present,

01:36 - 26.380 it has to go to E and actually formally amend the agenda,

01:36 - 30.417 a document that they didn't create in the first place.

01:36 - 32.386 Well, I think that that

01:36 - 35.189 respectfully ignores some of the realities when it comes to school boards.

01:36 - 38.125 You're dealing with unelected public elected public officials

01:36 - 42.463 that are working for for no pay, that are really deferring their functions

01:36 - 47.768 in a lot of ways, the superintendent and sometimes the board president. So

01:36 - 52.306 it just if subsection E is its own separate

01:36 - 55.442 standalone exemption, there's no reason to have

01:36 - 58.612 a separate subsection for emergency business, for example,

01:36 - 02.817 there's no re in subsection D if a resident or taxpayer,

01:37 - 06.854 which could include a member of the governing body, for example,

01:37 - 11.959 wants, that raises an issue to the the board during a public meeting.

01:37 - 14.328 The agency still can't take any official action

01:37 - 17.331 other than to refer it to staff unless it's de minimis.

01:37 - 18.766 It doesn't involve a contract and doesn't have

01:37 - 20.768 all the expenditure of funds in words.

01:37 - 25.940 In other words, if it just a similar question they ask the opposing counsel,

01:37 - 30.010 if is it your view that if appellant is correct,

01:37 - 36.083 if the dissent is correct, then all the work done by e

01:37 - 40.521 I'm sorry, all the work done by D, C, and D

01:37 - 43.224 could be done by E,

01:37 - 43.991 correct.

01:37 - 46.961 There's there's no other way to to read that because

01:37 - 50.798 if, as I said, here was the collective

01:37 - 54.068 bargaining agreement at issue here, it arose in that 24 hour period,

01:37 - 57.972 they could not operate under subsection C, It was a prohibition.

01:37 - 00.774 But then they're arguing here today that subsection

01:38 - 04.011 E allowed them to do whatever they wanted for any reason.

01:38 - 06.513 You know, and I think what's important to note, too, is

01:38 - 11.018 that appellant didn't identify what reasons they had the list, right.

01:38 - 12.519 So it could be any reason.

01:38 - 14.622 So if counsel if they're making that argument

01:38 - 19.126 because the statute says they can do it, I think that's the problem we run into.

01:38 - 23.530 And the newest member of this court and I'm struggling with text versus intent.

01:38 - 27.301 I mean, we often have people come in here on both sides and read the same exact

01:38 - 30.471 intent or statute and tell us it means completely different things.

01:38 - 31.739 In this particular case,

01:38 - 34.541 we had an amicus brief, I believe, by the Republican Senate

01:38 - 37.912 where the Republican legislature said, no, no, no, we didn't mean what we said.

01:38 - 40.514 We meant something else. Our intent was something else.

01:38 - 43.183 So what are we to do with that particular argument?

01:38 - 46.387 Well, I would say, actually, Your Honor, I would point you to subsection

01:38 - 48.522 E, subsection one,

01:38 - 50.891 which talks about the reasons for changes to the agenda

01:38 - 54.261 shall be announced at the meeting before any vote is conducted.

01:38 - 57.531 Those reasons are contained within B, C, and D.

01:38 - 00.234 So in terms of the Republican caucuses argument,

01:39 - 04.238 I think they did a very nice job of talking about the legislative history.

01:39 - 06.941 Sure, I'm I'm honor bound to say that.

01:39 - 10.344 But then the Texas something else that's that's that's what we're struggling with.

01:39 - 12.680 I think what you're seeing here is,

01:39 - 14.982 you know, twisting yourself into a pretzel to figure out

01:39 - 16.216 we know what the intent was.

01:39 - 17.451 The intent was clearly,

01:39 - 20.454 as you just pointed out at the outset of the quote from Justice Brandeis,

01:39 - 23.223 the intent was to let the public know what's on the agenda

01:39 - 24.558 so they could come to the meeting

01:39 - 27.194 and have a voice and be heard on those particular subjects.

01:39 - 28.362 Subsection eight

01:39 - 30.264 basically allows the board to do whatever they want to do

01:39 - 32.833 and not let the public know and then tell them afterwards what we did,

01:39 - 36.804 which technically speaking, violates both the spirit and the intent,

01:39 - 38.973 but not the text.

01:39 - 41.842 I would agree with you, except for your last point about the text.

01:39 - 46.280 I think it does violate the text because the only way to read section 712.1

01:39 - 49.283 together, giving effect to all of its statutory provisions

01:39 - 55.422 as the rules of statutory construction require, is to read it as B through D

01:39 - 00.627 give the reasons subsection E gives the process and the reasons that.

01:40 - 03.397 Why didn't the General Assembly say that

01:40 - 08.035 Sometimes the General Assembly is not the model of clarity, Your Honor, sometimes.

01:40 - 10.938 Counsel I guess the problem I have with

01:40 - 14.008 this is you're not asking us to interpret this statute.

01:40 - 17.544 You're asking us to rewrite this statute.

01:40 - 21.682 You're asking us to read or e out of this.

01:40 - 23.817 And frankly,

01:40 - 24.551 I don't know.

01:40 - 26.320 I don't know how you get beyond it.

01:40 - 30.090 I mean, I understand all the arguments that we're hearing about.

01:40 - 32.393 They could possibly have intended that.

01:40 - 36.864 Well, if we if we say we're interpreting this statute as written,

01:40 - 43.003 seems to me to be an easy fix for the legislature to go in and take out

01:40 - 49.676 or E and change it to be C or D and then it's over.

01:40 - 53.047 I mean, but but we we we have to rewrite this.

01:40 - 57.284 And if you arguing it's it's ambiguous

01:40 - 01.121 and we start looking at legislative history maybe yes maybe no.

01:41 - 04.191 Legislative history refers to four exceptions.

01:41 - 07.061 So are we supposed to ignore the fact that it refers

01:41 - 10.531 to four exceptions when there are four exceptions?

01:41 - 11.432 You see what I'm saying?

01:41 - 16.270 I mean, if this is an obvious and error, as you suggest it is to me,

01:41 - 20.174 the only way to fix it is through the legislature to fix it.

01:41 - 21.408 I would say two things.

01:41 - 24.878 One, on the legislative history front, those were remarks

01:41 - 28.082 made by a House staffer, not by a member of the General Assembly.

01:41 - 32.019 So I'm not necessarily sure how much weight it holds.

01:41 - 34.088 And it's not a whole heck of a lot.

01:41 - 35.122 Well, but our law

01:41 - 37.758 so doesn't give a lot of weight to the statement of a single legislator.

01:41 - 39.059 Rewrite legislative.

01:41 - 41.662 Legislative history is amendments.

01:41 - 43.864 You know what amendments were made this point? What amendments?

01:41 - 46.333 What did the bill look like? What changes were made?

01:41 - 49.169 Statements of a single legislator about legislative history?

01:41 - 50.237 I agree, Your Honor.

01:41 - 51.105 I take that point,

01:41 - 53.006 and I think the Republican caucus does a nice job

01:41 - 55.275 of spelling out the legislative history here.

01:41 - 59.346 But the other thing I would point out to Justice Donohue's question is,

01:41 - 02.416 is what the Commonwealth found in page 11 of their opinion,

01:42 - 06.653 which noted that the conjunction or must ordinarily be given disjunctive

01:42 - 09.656 meaning unless such construction would lead to an absurd result.

01:42 - 13.494 And that's exactly why we're here today, because it does lead to an absurd result.

01:42 - 16.997 So even though it uses the word awe and even though that's not a model

01:42 - 20.868 of necessarily clarity in this case, because it leads to an absurd result,

01:42 - 25.906 because it would swallow the whole EEAS everything that is.

01:42 - 31.612 That's our argument here today.

01:42 - 32.346 And the only

01:42 - 36.183 other comment, if I could, Chief Justice, is is the other aspect.

01:42 - 39.186 The other problem of this is that it really

01:42 - 41.855 prevents the public from having the ability

01:42 - 46.226 to really meaningfully or offer any kind of public comment whatsoever

01:42 - 48.162 because of the public has no notice

01:42 - 51.798 of what items are going to or may be before a government agency.

01:42 - 53.700 They may choose not to attend.

01:42 - 56.170 And if they choose not to attend and an item is added,

01:42 - 59.173 they have not witnessed the deliberations of the agency

01:42 - 02.743 and borrowing from the language from Section seven of to a subsection A,

01:43 - 04.945 And if a person shows up at a meeting,

01:43 - 08.982 that person is likely going to be completely unprepared to offer any kind of

01:43 - 13.554 meaningful or robust public comment on whatever item is added to the agenda.

01:43 - 16.156 Because that person had absolutely no prior notice

01:43 - 18.425 that the item would be at issue at during that meeting.

01:43 - 20.661 And that argument would be germane.

01:43 - 24.398 If if we find this ambiguous, which

01:43 - 27.467 pretty clearly is ambiguous

01:43 - 31.071 and we are probing for the purpose

01:43 - 32.606 of the statute. Right.

01:43 - 35.609 I agree with that. You're on.

01:43 - 36.910 All right. Thank you very much.

01:43 - 38.245 Thank you. Thank you.

01:43 - 40.881 The next case is summoned versus alarm.

01:43 - 44.251 And this is a premises liability action

01:43 - 49.957 that arose out of a fall at a premises and what the court's going to be looking

01:43 - 55.062 at is the application of the Pennsylvania Rules of Civil Procedure

01:43 - 59.333 as they apply to what's known as a tenancy in common.

01:43 - 04.571 A tenancy in common is generally two people own a property jointly.

01:44 - 09.476 So it would be if me and Ed buy a property

01:44 - 13.013 and we're both listed as owners of the property, we would

01:44 - 16.650 then list us as tenancy in common, meaning we have equal shares

01:44 - 19.219 and we have joint ownership of the property.

01:44 - 21.121 In this case, Ms..

01:44 - 25.092 Simon Falls and brings a case against Mr.

01:44 - 27.461 along as part of the case.

01:44 - 30.230 It's then found out that Mr.

01:44 - 33.667 Aslam had a joint owner or his brother in the property,

01:44 - 38.639 and then his lawyer raised an issue

01:44 - 43.176 what's known as failure to join an indispensable party.

01:44 - 46.213 So you'll hear about the failure to join an indispensable party

01:44 - 52.085 that comes under Pennsylvania rule, civil procedure to 2 to 7.

01:44 - 54.021 So you hear about that, too.

01:44 - 58.959 And basically what rule two 2 to 7 says

01:44 - 01.862 is when a party has a joint

01:45 - 07.434 interest in the outcome of the case, they have to be made part of the case

01:45 - 12.172 or the court does not have mainly jurisdiction over the case.

01:45 - 17.077 And it could get dismissed for failing to join an indispensable party.

01:45 - 20.380 In this case, the trial court found

01:45 - 25.352 that the brother wasn't indispensable party because they were joint owners

01:45 - 29.489 and they both had ownership of the property.

01:45 - 35.062 And the case was made because they were owners of the property.

01:45 - 36.063 The Superior

01:45 - 40.534 Court affirmed and said, yes, they were joint owners of the property

01:45 - 44.705 and the case should get dismissed.

01:45 - 47.441 Simon argued that this really was more

01:45 - 52.946 of an issue of maintenance, and even if they should have,

01:45 - 56.483 they could have joined the brother as the co-owner.

01:45 - 58.018 Really, it was Mr.

01:45 - 03.123 Alarm's negligence that was the basis for the case.

01:46 - 04.891 The case

01:46 - 07.260 was appealed to the Supreme Court.

01:46 - 08.729 This court took the case.

01:46 - 12.566 And the main issue there focusing on is when you have

01:46 - 17.237 two people on a property tenancy in common,

01:46 - 20.374 whether or not both of those parties

01:46 - 26.380 or people must be made part of the case and therefore they're indispensable

01:46 - 31.852 parties, or can you just sue one and still preserve the case against the other?

01:46 - 34.654 So let's go to the court.

01:46 - 37.124 Please proceed. Thank you.

01:46 - 39.426 May I please The court? And good morning.

01:46 - 41.728 Jacqueline Morgan For the appellant.

01:46 - 43.797 Nicole Seaman,

01:46 - 44.531 a tenant in

01:46 - 48.402 common who doesn't exercise, possession or control,

01:46 - 52.339 essentially an owner out of possession.

01:46 - 56.109 There is no liability whatsoever under Pennsylvania law.

01:46 - 59.079 Can I. Can I stop you there? Sure.

01:46 - 01.748 What's your authority for that statement?

01:47 - 03.150 The restatement.

01:47 - 05.419 And when do we adopt the restatement?

01:47 - 07.087 In 1964.

01:47 - 09.156 And what was the case in

01:47 - 10.690 the case that adopted it? Yes.

01:47 - 13.326 I don't have that authority.

01:47 - 13.960 And I'm sorry.

01:47 - 19.132 The the it was originally published in 1965.

01:47 - 24.237 I have no I'm asking I've cited the cases that was published.

01:47 - 28.842 I'm asking when did this court adopt the restatement

01:47 - 30.544 that you're referring to here?

01:47 - 35.282 I know the I know the Superior Court is talking about it on a couple of occasions.

01:47 - 37.417 When did this court adopt that?

01:47 - 38.852 I don't know the exact year,

01:47 - 42.022 but it was certainly adopted at the time of this case.

01:47 - 43.957 And my

01:47 - 48.728 citations in my brief address that.

01:47 - 50.197 In any event, the black letter

01:47 - 55.836 law in Pennsylvania is that in order to have liability

01:47 - 59.940 in a premises case, liability is not based on ownership.

01:47 - 02.909 It's based on possession.

01:48 - 07.547 You must be a possessor of land as defined within the restatement.

01:48 - 08.048 But wouldn't.

01:48 - 12.552 Yeah, wouldn't a bright line rule

01:48 - 15.555 for our common law

01:48 - 17.157 be more clear

01:48 - 20.227 than the state of affairs that brings us here today?

01:48 - 23.463 If we

01:48 - 27.400 if we said that tenants in common were per

01:48 - 30.971 se indispensable, I mean, first of all, I think we should dispense with the notion

01:48 - 35.542 that we're bound in any way by any of the.

01:48 - 38.144 The reason we're here, it's a

01:48 - 41.147 it's a first impression matter. Yes.

01:48 - 43.717 So if if we want

01:48 - 47.053 clarity, predictability and fairness all around.

01:48 - 49.155 Fairness all around,

01:48 - 50.357 wouldn't a bright line

01:48 - 54.528 rule making them indispensable?

01:48 - 57.531 The best avenue

01:48 - 00.667 toward justice, whatever that may be in the case?

01:49 - 03.803 It certainly would, because there are no other cases

01:49 - 07.173 on this issue outside of minor, which isn't the same issue.

01:49 - 08.675 And I'll get to that.

01:49 - 12.312 But ordinarily, what happens in a premises liability case

01:49 - 15.315 when you name

01:49 - 18.184 multiple parties and all the dust settles,

01:49 - 21.821 you let out those that aren't in possession and an owner out

01:49 - 25.959 of possession is a defense to a premises liability claim.

01:49 - 27.794 And I've never seen that.

01:49 - 32.132 I've never seen a premises liability case tried that way.

01:49 - 34.301 I mean, that's that's what I'm struggling with here.

01:49 - 37.971 It's sort of independent of the question of

01:49 - 41.074 who an indispensable party is.

01:49 - 46.613 This notion that an owner of a property has no liability

01:49 - 49.049 for personal injuries

01:49 - 52.452 that occur on that property is foreign to me.

01:49 - 53.787 It's just foreign to me.

01:49 - 57.591 I mean, it's based on some notion that you can ask

01:49 - 00.727 what your ownership responsibilities.

01:50 - 04.097 And that's why I'm asking you the question, where does that come from?

01:50 - 08.134 I mean, the the times in which appellate courts in Pennsylvania

01:50 - 12.706 have talked about liability of possessors of property

01:50 - 17.444 generally deal with situations where the possessor is not an owner.

01:50 - 18.011 And so

01:50 - 21.982 therefore, you can be liable for what happens on the property.

01:50 - 24.384 But I'm just I'm troubled.

01:50 - 28.955 I'm troubled by by this broad proposition

01:50 - 31.925 that your entire case is based on.

01:50 - 37.931 And I'll say it again, I'm not so sure it goes to who is an indispensable party.

01:50 - 42.869 I'm just saying that you are starting with a premise and asking this court

01:50 - 46.673 to right from a premise that I'm unfamiliar with.

01:50 - 51.511 I just don't know of the case that would establish

01:50 - 55.482 that ownership of property does not have attendant to it

01:50 - 58.618 responsibility for what happens on the property.

01:50 - 01.588 Well, again, it is it is black letter law.

01:51 - 04.391 Jury instructions are based on the restatement

01:51 - 08.828 and and the jury instructions and restatement,

01:51 - 14.434 specifically state that to be liable, one must be a possessor of land.

01:51 - 19.172 And those various sections of the restatement are in my brief counsel.

01:51 - 23.510 I think I think the question, though, is not every possessor is an owner,

01:51 - 25.645 but isn't every owner a possessor?

01:51 - 28.648 No, no. Where does that principle come from?

01:51 - 32.152 That's I think that's the question that Justice Donahue is asking you,

01:51 - 35.889 as I understand what the restatement says, because a possessor,

01:51 - 38.191 a possessor is liable

01:51 - 41.761 because the possessor has to be shown to either have had knowledge

01:51 - 46.299 of the dangerous condition or should have had knowledge of the dangerous conception

01:51 - 49.736 and liability can attach to you know, a possessor

01:51 - 52.739 meeting someone who's renting the property or something, I don't know.

01:51 - 54.607 But in addition to the owner.

01:51 - 00.313 But where's your principle that an owner

01:52 - 01.748 is not a possessor?

01:52 - 06.720 There are plenty of situations where an owner rents out their entire house

01:52 - 09.723 and does not retain any response ability

01:52 - 12.892 regarding maintenance, snow removal, etc.

01:52 - 16.262 and relinquishes complete control to their tenants.

01:52 - 18.598 In that case, they're an owner out of possession.

01:52 - 24.170 And if somebody slips on the sidewalk and they the tenant didn't shovel the snow.

01:52 - 26.005 The owner is not responsible.

01:52 - 27.774 Why is it fair for our company?

01:52 - 31.444 Why is it better for our common law going forward that

01:52 - 35.115 that we consign all these matters to extensive discovery

01:52 - 40.253 along those lines, rather than a bright line rule

01:52 - 45.492 that would say the deeded owner is presumptively

01:52 - 49.429 indispensable to the adjudication because he or she has an interest

01:52 - 53.500 as an ownership interest in the property.

01:52 - 56.503 Well, a bright line rule would certainly clarify things,

01:52 - 00.006 and I think this court could certainly clarify the minor case.

01:53 - 04.110 And one of the points I want to make is that even though

01:53 - 08.214 the restatement wasn't adopted in the minor case,

01:53 - 11.551 which was decided in 1949,

01:53 - 17.624 that court did state that exclusive possession

01:53 - 20.393 and control is essential to liability.

01:53 - 27.033 So back in 1949, even though the restatement wasn't in existence,

01:53 - 30.703 the Supreme Court at that time applied the very same

01:53 - 34.040 legal principles that are in the restatement today.

01:53 - 39.112 And if you allow me to do the analysis in conjunction with the restatement,

01:53 - 43.716 you'll see that that is the case.

01:53 - 46.419 The lower courts in this case

01:53 - 49.422 latched on to the one statement in minor

01:53 - 53.226 where the court said having grown out of liability,

01:53 - 58.998 having grown out of ownership, requires all the

01:53 - 00.066 brothers, in that

01:54 - 03.937 case the tenants in common to be joint.

01:54 - 06.472 The only reason ownership became

01:54 - 10.510 an issue in minor was because we had three brothers

01:54 - 15.014 who were devised a property from their uncle who had passed.

01:54 - 20.053 And lo and behold, at some point someone fell on the property.

01:54 - 24.224 The brothers had not taken possession of the property.

01:54 - 28.728 They tried to escape liability by saying, no, we didn't

01:54 - 32.699 accept ownership of this property, so we don't need to be a party.

01:54 - 34.067 The lawsuit.

01:54 - 40.006 Well, the Supreme Court quickly dismissed that argument and said,

01:54 - 44.077 no, you never renounced ownership.

01:54 - 47.714 So therefore you are owners

01:54 - 51.918 and you can't you can't renounce ownership.

01:54 - 54.487 The mean

01:54 - 57.690 their deeds to property

01:54 - 01.527 through which one traces the ownership of the property.

01:55 - 05.331 It may be in certain situations that an owner hires

01:55 - 08.468 someone else to care for the property.

01:55 - 11.104 And if something happens on the property

01:55 - 16.376 when someone else is managing it for the minimum possession of it,

01:55 - 21.347 the owner may be indemnified by the person who is managing the property,

01:55 - 26.619 but the owner is an off putting responsibility for the property.

01:55 - 31.658 I mean that that's sort of the the I mean, I'm going to say it again,

01:55 - 35.228 you know, because we took this as an indispensable party case and,

01:55 - 36.930 you know, obviously that's the issue.

01:55 - 40.633 And I could never get over

01:55 - 45.505 the legal principles upon which this argument was based.

01:55 - 50.109 Now, it may very well be that you don't have to sue

01:55 - 54.080 each owner of the property in order to bring a claim

01:55 - 58.017 for personal injuries that occur on the property.

01:55 - 01.688 But that doesn't mean that each owner isn't responsible

01:56 - 05.458 for what happens on that property.

01:56 - 06.960 The point isn't whether

01:56 - 11.698 somebody can renounce ownership that clearly if you're

01:56 - 14.067 if you have a devise according to a will,

01:56 - 17.103 you can refuse that and and allow it in this state.

01:56 - 18.638 The brothers didn't do that here.

01:56 - 21.941 But the point that I wanted to make was

01:56 - 27.213 if the minor court meant to say that

01:56 - 30.750 liability and

01:56 - 34.354 indispensability is

01:56 - 38.091 based on or should be based solely on ownership,

01:56 - 42.095 then the opinion could have stopped right there.

01:56 - 43.496 But it didn't.

01:56 - 47.100 The court went on to examine possession and control

01:56 - 50.937 and they stated that exclusive possession and control

01:56 - 55.008 is essential to impose liabilities regardless of what was said there.

01:56 - 55.875 All right.

01:56 - 57.276 Well,

01:56 - 00.513 under your scenario, because we just deciding this case

01:57 - 04.050 about these two brothers, a fool and some cool, right.

01:57 - 05.585 Is this going to be a decision

01:57 - 09.655 that's going to affect Pennsylvania's common law for all these actions?

01:57 - 14.761 Right. So if you prevail,

01:57 - 16.095 how how

01:57 - 21.567 are the interests of the the deeded owners who are not there on the

01:57 - 25.338 on the spot protect how do they protect their rights?

01:57 - 28.408 They their their hostage,

01:57 - 31.277 their interests, their ownership interests

01:57 - 35.448 and potential prejudice

01:57 - 39.285 and catastrophic losses to their interests,

01:57 - 42.188 reclusive losses to their interests

01:57 - 46.692 are at the whim of the the tenant in common

01:57 - 50.196 because they don't even have to get notice they this whole lot

01:57 - 55.802 a whole loss and could proceed to verdict

01:57 - 57.070 without them ever

01:57 - 01.741 even knowing they're not all going to be brothers.

01:58 - 03.443 The tenants in in common

01:58 - 08.014 have a divisible interest and

01:58 - 12.218 if there is a judgment then a petition action is filed.

01:58 - 14.520 They are protect that small solace.

01:58 - 15.721 I'm going to I'm going to have a

01:58 - 19.559 that's for this massive, massive verdict entered against me.

01:58 - 22.061 I you know, I, I own this property.

01:58 - 26.566 This schnook I own it with doesn't tell me, you know, I'm not

01:58 - 30.236 I wasn't required to be join in blows the case

01:58 - 33.606 and now I'm out millions of dollars and my solace is

01:58 - 37.243 there's going to be a partition and maybe I'll get a check down the line.

01:58 - 40.513 But if there's no if there's no liability

01:58 - 44.784 against the owner out of possession, then

01:58 - 47.887 that's, you know, that's a disingenuous

01:58 - 50.923 maybe I would have wanted to hire a decent lawyer.

01:58 - 55.261 Maybe I would have wanted to take a different litigation strategy.

01:58 - 57.497 Maybe I would have wanted to advise settlement.

01:58 - 01.467 And we call these things due process, the opportunity to participate

01:59 - 03.703 in litigation affecting my interests.

01:59 - 06.706 Well, I, I think the distinction

01:59 - 09.375 you were kind of missing here is tenants in common.

01:59 - 12.245 If a judge is justice, where can I buy a piece of property

01:59 - 15.248 and I'm the schnook in this situation anyway,

01:59 - 18.985 if I'm the schnook and you and you name me, and without naming

01:59 - 20.786 justice wack, if the judgments entered as entered

01:59 - 23.756 against my interest in the property, not just his, it doesn't affect him.

01:59 - 27.026 So in other words, if you own a piece of property, it's worth $1,000,000.

01:59 - 29.695 Is a $500,000 judgment against me.

01:59 - 32.365 It doesn't affect justice wex interest in the property, it affects mine.

01:59 - 33.065 That's your argument.

01:59 - 33.933 Exactly. Yeah.

01:59 - 36.068 But the whole is greater than the sum of its parts.

01:59 - 38.137 And and

01:59 - 38.738 again, this

01:59 - 42.642 partition action is not a cure all for a lucrative property.

01:59 - 43.176 Right.

01:59 - 46.078 And a partition action also affects would affect just

01:59 - 49.315 as what interest in the property as well because it would be a for sale

01:59 - 52.051 and he would have to go into business with somebody else or liquidate

01:59 - 55.755 his particular interest in the property so you could execute on your judgment.

01:59 - 57.890 So what effect jumped a little forward And, you know,

01:59 - 59.592 can you help educate me for a second?

01:59 - 01.694 Because I thought we were talking about indispensable parties

02:00 - 07.266 for purposes of getting a not an in REM judgment and in pursuit of judgment.

02:00 - 10.369 We've kind of jumped the shark to execution of the judge.

02:00 - 13.372 And that's why I said I agree.

02:00 - 16.609 That's and that's the point that I made earlier about I'm

02:00 - 22.815 not certain I'm not certain about the indispensable party issue.

02:00 - 23.482 I'm more

02:00 - 26.886 concerned about the general principle of law

02:00 - 30.890 that you're suggesting exists in the Commonwealth of Pennsylvania,

02:00 - 35.628 that an owner of property by mere ownership of the property

02:00 - 40.233 has no liability for personal injuries that occur on that property?

02:00 - 44.270 That I am saying I do not believe it's the law of the Commonwealth.

02:00 - 44.904 Pennsylvania.

02:00 - 48.641 And let me let me just help you with that because

02:00 - 50.610 again, I'm I'm looking at

02:00 - 53.613 this very just about looking at as an interim judge.

02:00 - 55.014 There's no interim judgment here.

02:00 - 59.352 This is an and personal judgment that that is being pursued against

02:00 - 02.421 the person who the plaintiff determines

02:01 - 06.425 to be the one most responsible for the condition of the property,

02:01 - 09.662 sued them, argue they have notice of the condition.

02:01 - 11.430 It was their responsibility to remedy that.

02:01 - 15.434 They're responsible. Now, that Schnook

02:01 - 17.903 could, I assume,

02:01 - 21.274 file a bring and bring in the other owners

02:01 - 24.877 and seek to have them as additional defendants?

02:01 - 27.213 I don't think he's the snuck in that scenario.

02:01 - 31.250 Well, he what the judge schnook himself by bringing in the other owners.

02:01 - 35.621 Well, I mean we're going to all these permutations of what of what can happen.

02:01 - 37.056 But the

02:01 - 39.458 in this case I think goes is Justice Donohue's

02:01 - 42.595 point is there may be many other people who have liability.

02:01 - 44.497 All the owners may have liability,

02:01 - 48.334 but the question is whether they're indispensable to the in persona judgment

02:01 - 51.470 against one of the which is which is a different issue.

02:01 - 55.908 But it and that's why I keep saying that my disagreement

02:01 - 59.812 with you and your brief is the

02:01 - 02.181 general principle of why that you're stating

02:02 - 05.551 that mere ownership of property does not have the can go into it.

02:02 - 07.853 Any liability for injuries that occur on it.

02:02 - 09.322 I don't think that's the law

02:02 - 13.059 in the Commonwealth of Pennsylvania for reasons totally unclear to me.

02:02 - 17.697 Your client chose not to sue all the owners of the property.

02:02 - 20.466 Generally speaking, in a premises liability case,

02:02 - 24.136 the first thing that anybody does is goes to the deed

02:02 - 27.039 and see who is on the deed

02:02 - 31.277 and spends a lot of time running around before the statute of limitation runs

02:02 - 35.681 to make sure that you're suing everybody who is on the deed for reasons unclear.

02:02 - 40.052 To me, that didn't happen here, which is why I think this is an issue

02:02 - 43.522 of first impression, because nobody doubts what your client did here,

02:02 - 47.593 which is not to all of the owners on the deed.

02:02 - 49.662 Maybe, maybe that's okay

02:02 - 53.265 for indispensable party purposes.

02:02 - 54.400 Maybe that's okay.

02:02 - 57.803 But we cannot start

02:02 - 01.207 writing an opinion on this case based upon a premise

02:03 - 06.011 that in your ownership or property carries with it no responsibilities

02:03 - 09.882 for liability that occurs on that property.

02:03 - 11.417 And it's just not it.

02:03 - 14.820 That to me is a I don't think it's ever been the law.

02:03 - 17.390 And B, I think it's terrible policy.

02:03 - 23.195 The liability comes from possession and control and the negligence alleged.

02:03 - 25.898 It arises out of the maintenance

02:03 - 29.568 and inactions and actions in maintaining this property.

02:03 - 33.105 The out the absent owner had nothing to do with that.

02:03 - 34.807 He wasn't the landlord.

02:03 - 38.244 The defendant in the action was the landlord.

02:03 - 41.414 And again, there's no cases on point

02:03 - 44.717 because typically owners out of possession are led out.

02:03 - 49.321 But the there is one very persuasive case

02:03 - 53.426 that has adopted the restatement as well, and that's the Washington

02:03 - 00.232 Supreme Court case where the management company of a mall

02:04 - 03.235 was the name defendant and the owner was not.

02:04 - 07.540 And the court said that the test isn't

02:04 - 10.876 who is the true owner, it's who is the possessor.

02:04 - 13.746 The test is who the possessor of land is.

02:04 - 16.415 And that is consistent

02:04 - 21.120 with Minner, because, as I said, Minner then went to look at

02:04 - 24.523 whether these brothers were in possession and control.

02:04 - 30.396 If ownership alone was enough for them to decide

02:04 - 34.700 that these brothers were indispensable parties, then the court would not have

02:04 - 38.604 gone through the analysis of possession and control, wouldn't have better rule.

02:04 - 39.805 But they did.

02:04 - 43.309 Wouldn't

02:04 - 49.515 wouldn't a better common law rule be that

02:04 - 52.585 the owners are indispensable

02:04 - 55.054 and that rather than having

02:04 - 01.227 this fact intensive morass of possession or possession on the front end,

02:05 - 03.629 you allow motion practice

02:05 - 06.966 later by which the out of possession landowner

02:05 - 12.505 could seek to get out of the case by reason of being out of possession.

02:05 - 18.777 Because the reason I asked that is that would at least protect the process rights,

02:05 - 20.779 the property interest rate

02:05 - 23.649 of the owner

02:05 - 27.286 who allegedly is out of possession.

02:05 - 31.290 You're your approach,

02:05 - 32.391 it seems to me,

02:05 - 36.729 would have no recognition of the deprivation

02:05 - 40.232 that he or she faces.

02:05 - 42.368 I don't know that that would be a better approach.

02:05 - 46.605 I think you you then risk flooding the court system and always having to drag

02:05 - 50.843 in owners every time the owners, you're always sued.

02:05 - 54.980 I mean, you're talking about this is though I what what what

02:05 - 01.954 we're discussing is the outside the boundary situation.

02:06 - 06.825 I mean, you look at it before you bring a lawsuit

02:06 - 12.331 based on the regarding property

02:06 - 13.499 that's owned by someone.

02:06 - 15.968 I mean, Leslie said, I don't know why that didn't happen here.

02:06 - 21.073 And it may be this is why we never actually looked at this issue before.

02:06 - 24.043 But but what we're talking about here

02:06 - 28.547 is not an oddity that you sue the owners of property.

02:06 - 32.851 I mean, you're client was apparently in a situation where they knew

02:06 - 35.721 who is managing the property.

02:06 - 39.491 It's exactly didn't bother to look at the deed

02:06 - 43.529 but what you see there was a problem with the deed with getting There you go.

02:06 - 45.965 There you go. That's what happened here.

02:06 - 48.901 And that's why we're here on this argument,

02:06 - 52.404 because the first thing you did was you look you try to look at the deed.

02:06 - 58.043 What was the problem in looking at the deed, there was a problem

02:06 - 03.115 getting it because there was a conflict in the address

02:07 - 07.653 and it didn't come back

02:07 - 10.956 with the owners that were reflected.

02:07 - 16.128 And I wasn't involved in that case or difference in the two owners name.

02:07 - 17.463 So that didn't have anything to.

02:07 - 19.264 Yeah, well, that was confusing.

02:07 - 20.466 I mean, that was confusing.

02:07 - 24.136 But as between the burden on a plaintiff too,

02:07 - 28.874 and like Justice Donahue suggested that the rarity of this is because,

02:07 - 33.245 you know, 99% of plaintiffs want to grab as many defendants as they can.

02:07 - 34.513 Wait nine, nine, nine, nine.

02:07 - 35.314 Right, Right.

02:07 - 41.487 So that in your scenario, shouldn't the burden be on the plaintiff to do his

02:07 - 45.391 or her homework and mind the deeds

02:07 - 51.597 and figure out rather than rather than allow this shortcut,

02:07 - 56.735 which again, is, I think, constitutional implications

02:07 - 00.406 and go ahead.

02:08 - 03.275 So the

02:08 - 07.212 ordinarily, as I said, being an owner out of possession is a defense.

02:08 - 11.116 And typically, once the dust settles and you figure out who's managing

02:08 - 12.685 and who's responsible,

02:08 - 15.754 who bears the responsibility, who's in possession of control,

02:08 - 20.292 we stipulate the others out or they often are entitled

02:08 - 25.497 to get out a motion for summary judgment or to defense in the case.

02:08 - 27.099 That's why

02:08 - 30.102 the black letter law, the restatement is written as it is.

02:08 - 34.073 If if this case is is allowed to stand,

02:08 - 37.943 then the the restatement is going to have to be written.

02:08 - 38.777 we don't care about that.

02:08 - 43.415 We say it's a bunch of I'm part of the I'm a member of realize it a bunch of people

02:08 - 47.920 you know used to be Henry Friendly and you know a lot of smart people,

02:08 - 50.389 but it's still just a group of people who makes recklessly

02:08 - 53.425 the minute I'm a member of it and why it is a bunch of smart,

02:08 - 57.062 but I mean it but but they they're making recommendations to us.

02:08 - 59.465 We're not making recommendations to them.

02:08 - 00.532 And I don't think we

02:09 - 04.436 this court has ever adopted the restatement that you're referencing.

02:09 - 08.240 I mean, I did a search prior to this

02:09 - 12.144 because I find this to be an intriguing argument

02:09 - 16.248 and the Superior court has cited restatement sections,

02:09 - 20.152 but I don't think this court has ever adopted it.

02:09 - 21.186 Should we? Should we not?

02:09 - 23.055 I'm not sure that's part of the issue.

02:09 - 27.259 I'm this indispensable party point. But

02:09 - 29.995 the premise that you're starting from here is really,

02:09 - 33.398 I think, startling to most people.

02:09 - 36.135 But we're going to we're going to figure that out for sure.

02:09 - 42.074 But I just want to try to understand your approach here was that it

02:09 - 48.514 didn't really matter if you brought in the second brother, because ultimately

02:09 - 52.518 as an owner, out of possession, he was going to have no liability.

02:09 - 53.685 That was your right

02:09 - 58.357 and he had no liability and his brother exonerated from it and said he absolutely

02:09 - 02.060 had nothing to do with this property other than he contributed to financing.

02:10 - 05.664 So if I help my brother out because he can't afford

02:10 - 09.134 to buy a property, I don't want to be drug into a lawsuit.

02:10 - 13.238 And usually I don't know any owners out of possession who are jumping

02:10 - 18.310 on board asking to be sued.

02:10 - 25.250 But you know, the

02:10 - 27.186 the court

02:10 - 34.126 in are clearly stated that

02:10 - 37.196 and and

02:10 - 39.431 and evaluated

02:10 - 44.469 this case again under the principles of the restatement

02:10 - 48.874 which even though it didn't exist, we can look to Minner for that guidance.

02:10 - 51.877 And the only reason

02:10 - 55.147 that ownership were that the court said liability

02:10 - 00.686 grew out of ownership was because that ownership created possession

02:11 - 04.656 and control because they were all deemed in possession and control.

02:11 - 09.261 This was a multi tenant unit with one tenant so that one

02:11 - 13.398 tenant could not have taken control and nobody else took control.

02:11 - 16.401 So the court said

02:11 - 18.770 you are because you are owners

02:11 - 24.076 and you are entitled to occupation as the definition

02:11 - 28.647 in the restatement of of torts says

02:11 - 33.585 that is what makes you liable and that's what renders you

02:11 - 38.757 in possession and control and if you look at

02:11 - 40.626 the definition of a possessor

02:11 - 45.130 of land, a possessor is somebody who was

02:11 - 48.734 either in in is in or was in

02:11 - 51.803 with the intent to control the property.

02:11 - 56.808 And if you're not either of those which none of the brothers were in that case,

02:11 - 59.711 then the court

02:11 - 03.982 I see is a person who is entitled to immediate occupation

02:12 - 08.620 and who's entitled to immediate occupation by an owner.

02:12 - 12.424 But if that alone makes them a possessor, then again

02:12 - 15.193 the restatement would have stopped right there. But it doesn't.

02:12 - 18.797 And it says a person who is entitled,

02:12 - 23.769 if no other person is in possession and in Michener,

02:12 - 25.470 no one else was in possession.

02:12 - 29.441 But in this case the school was in possession.

02:12 - 34.379 And if the tenants were also in possession, tenants cannot.

02:12 - 36.248 Tenants are not in possession.

02:12 - 39.818 Possession is essentially equated with with control.

02:12 - 42.087 They they weren't in possession.

02:12 - 44.489 They didn't they were in possession of their unit.

02:12 - 46.224 But they weren't in the common areas.

02:12 - 48.193 Right. Exactly.

02:12 - 50.762 Okay. I think we understand your argument.

02:12 - 52.898 We have a few things to figure out here,

02:12 - 56.802 but we appreciate your position and let's hear from your opposing counsel.

02:12 - 04.176 Thank you,

02:13 - 04.843 Madam Chief

02:13 - 08.880 Justice, distinguished justices of this court.

02:13 - 10.048 Attorney Morgan.

02:13 - 13.352 My name is Martin Durkin, and I represent the appellant.

02:13 - 15.420 The appellant in this matter,

02:13 - 20.492 what the appellant is asking this court to do is to set aside

02:13 - 23.495 a rule that was promulgated by this court

02:13 - 26.164 84 years ago,

02:13 - 30.035 Rule two, 2 to 7, a mandates that persons

02:13 - 33.805 having only a joint interest in the subject matter of an action

02:13 - 38.777 must be joined on either side as plaintiffs or defendants.

02:13 - 43.982 This rule does not state anything about possession or control.

02:13 - 45.851 The appellant in this case is asking

02:13 - 48.854 this honorable court to set aside

02:13 - 53.558 or to ignore the precedent from 1949 in the minor case

02:13 - 58.497 that specifically adopted Rule 2227, a

02:13 - 01.800 and the issue regarding possession and control

02:14 - 05.971 that counsel persuasively is arguing to arguing to the court

02:14 - 08.407 that she says, as stated in the in her case

02:14 - 13.078 and that should convince you to add that to the case only had to deal

02:14 - 17.015 with additional defendants who were mortgagees counsel.

02:14 - 19.451 Let me ask you some more questions.

02:14 - 24.423 Why can't justice be done in the absence of your client?

02:14 - 28.093 I mean, bearing in mind what Justice Robson raised, this is in persona.

02:14 - 31.997 I'm not in. So

02:14 - 33.465 supposing a verdict is entered

02:14 - 38.737 against a mix of the forms of court,

02:14 - 42.140 against the possess or

02:14 - 45.744 how does that

02:14 - 48.680 how does that impair

02:14 - 52.918 your client's rights?

02:14 - 55.153 It doesn't impair my

02:14 - 58.523 it potentially impairs my client's rights because

02:14 - 02.427 let's say that there is that that the appellant prevails at trial

02:15 - 04.830 and that there's a judgment against my client.

02:15 - 09.534 That judgment ultimately if my client cannot.

02:15 - 12.003 No, no, no. It's not against your client's.

02:15 - 14.406 Okay. He's not. He's he's the actual named defendant.

02:15 - 16.942 I said, Yeah, I'm the name defender. He's not. Your brother's never been.

02:15 - 17.542 You're the name.

02:15 - 23.815 Defendant A judgment is entered against you.

02:15 - 25.117 How does that affect the brother?

02:15 - 26.952 Yeah, that's accurate.

02:15 - 31.223 So if there's a judgment entered against my client, which could be the case,

02:15 - 34.326 then, and my giant and my client cannot

02:15 - 40.031 satisfy that judgment, then ultimately, and it's not likely in this case

02:15 - 43.902 because of other factors, but potentially, and this is my public policy argument,

02:15 - 46.905 the property could be leaned and there in that affects

02:15 - 51.977 the interest of not only his interest only that's on only his interest can be

02:15 - 55.547 that only his interest can link

02:15 - 58.617 and we it's case law in Pennsylvania that stands for that property

02:15 - 01.820 understand could lead to a partition so that's correct.

02:16 - 05.790 But when that can happen, that can happen in any negligence action.

02:16 - 05.991 Right.

02:16 - 10.162 Your client could get involved in a car accident and be named

02:16 - 14.199 as a defendant and, a crap ton of money.

02:16 - 20.438 And if doesn't pay, their interest could be subject to execution

02:16 - 23.341 through a partition action plan to be put on their interest.

02:16 - 27.179 So does that mean that any time, any time a defendant

02:16 - 32.384 who happens to own property as a tenant in common is sued

02:16 - 36.154 first in a civil action, the any joint

02:16 - 40.225 or tenants in common have to be notified and made indispensable parties?

02:16 - 43.895 Well, yes, we're arguing that that is the case under rule 2 to 2.

02:16 - 45.430 So you get you jump past

02:16 - 50.068 the in persona part and you fast forward to potential execution and if if

02:16 - 53.872 if you go through, that's how we're going to determine who indispensable

02:16 - 57.809 parties are, if there's any assets that could potentially be at issue,

02:16 - 58.610 I don't think so.

02:16 - 59.711 You're you're on the case.

02:16 - 02.514 78278227.

02:17 - 06.484 A states persons having only a joint interest

02:17 - 09.754 in the subject matter of an action must be joined

02:17 - 13.892 must be joined as either this is not either

02:17 - 16.328 this is not a joint interest,

02:17 - 19.831 this is these are tenants in common or not.

02:17 - 22.100 This is not a joint tenancy.

02:17 - 25.103 This is not a joint tenancy with right of survivorship.

02:17 - 28.506 In a joint interest means you own

02:17 - 31.576 one half of the whole code tenants.

02:17 - 34.412 This is several, this is several.

02:17 - 39.284 These cotangent have several interests, not a joint interest.

02:17 - 42.854 You're under the the minor court, the Moorehead Court, the end right court.

02:17 - 49.060 This is, these are cases from 49, 1949, 1982 and 2003.

02:17 - 53.198 The minor the facts in the minor case are strikingly similar to this case

02:17 - 58.336 and they were all in that case tenants in common with a joint interest.

02:17 - 03.241 So The Court This Court What is the joint interest?

02:18 - 08.179 A joint interest, Your Honor, is an interest that all owners

02:18 - 09.347 have in the property.

02:18 - 12.217 So this isn't but this isn't a this isn't an interim action.

02:18 - 13.785 It's not a quiet title action.

02:18 - 16.054 It's not a dispute over the sale or property.

02:18 - 20.492 It's not it's not even an action relating to a municipal league.

02:18 - 23.161 This is this is negligence.

02:18 - 25.697 It's like a car accident.

02:18 - 26.531 That's correct. Your Honor.

02:18 - 27.098 And that's.

02:18 - 28.466 And that's that.

02:18 - 29.934 The same in minor.

02:18 - 33.138 Minor. I understand. Minors. Minors.

02:18 - 34.239 Minors. Your best argument.

02:18 - 36.007 Just stick with minor and we're done to justice.

02:18 - 39.144 WEX point is probably the easiest legal principle that you can pass.

02:18 - 39.844 That's right.

02:18 - 46.051 And that is I'm trying to understand why in an in persona action

02:18 - 50.255 all owners of potentially executable property

02:18 - 54.059 for purposes of satisfying a judgment that has never been entered or in persona

02:18 - 00.098 judgment are in dispensable parties in every case because that's to justice.

02:19 - 00.865 What's point?

02:19 - 04.903 You're asking us to adopt a legal principle that I think would change

02:19 - 07.872 common law in the Commonwealth of Pennsylvania.

02:19 - 09.341 You're going to have to do

02:19 - 13.178 you're going to have to do discovery in aid of execution before you even file

02:19 - 16.715 the complaint to determine what property you could potentially get to.

02:19 - 19.718 And if there are joint owners, in your view of potentially

02:19 - 22.987 excludable property, you have to name all of them

02:19 - 26.758 as defendants because they're in dispute and dispensable.

02:19 - 27.759 And it's our position.

02:19 - 31.029 Your Honor, respectfully, that's what 22278 says.

02:19 - 34.032 That's what Minor says.

02:19 - 37.535 And when you have an action against personal injuries, you've got to uphold

02:19 - 38.336 the deed.

02:19 - 41.339 You've got to do your due diligence, see the deeds almost irrelevant.

02:19 - 45.844 The reason you do that is to get as many defendants as possible,

02:19 - 50.048 because there is liability that flows from ownership.

02:19 - 51.916 I mean, this case could have been pleaded

02:19 - 56.054 that the code tenant was negligent in allowing your client

02:19 - 01.126 to operate the property on various X, Y and Z reasons.

02:20 - 02.961 That's accurate there.

02:20 - 05.230 They could he could have been sued.

02:20 - 06.898 He just wasn't.

02:20 - 11.369 We're here to answer the question, should he did he have to be joined?

02:20 - 14.873 It's a whole different whole different issue, whole different issue.

02:20 - 18.376 Understand, it's our position that the rules

02:20 - 23.515 and that men are adopting that rule again going back 80 years

02:20 - 26.017 this is counsel used the term black letter law.

02:20 - 30.388 This is as black letter law as you can possibly get all of the deeded

02:20 - 35.794 owners of the property in IT action stemming in personal injury have to be

02:20 - 40.298 named as defendants, otherwise the court loses criminal justice problems.

02:20 - 42.667 This point about pre discovery

02:20 - 46.404 native execution or anticipatory discovery or color.

02:20 - 49.908 When you will do you foresee a problem

02:20 - 56.047 if your rule were adopted by this court with a not uncommon scenario

02:20 - 59.651 where in the sort of in the commercial space there's

02:20 - 03.855 or residential for that matter, there are like obscure holding companies

02:21 - 07.459 that are that have ownership interest and

02:21 - 13.331 and might be somewhat opaque somehow for the plaintiff

02:21 - 14.432 what would would

02:21 - 19.504 would imposing this rule as a requirement rather than as a

02:21 - 22.807 as a common course

02:21 - 26.744 B the burdensome on some personal injury plaintiffs.

02:21 - 29.647 Is that a clear question? But it's kind of clear, Judge.

02:21 - 32.984 But I would say that, in fact, that's exactly why

02:21 - 37.622 the legislature, why this this court in 1940

02:21 - 42.260 adopted rule 22278 to take out all of those uncertainties.

02:21 - 44.629 So if you're going to have a personal injury action

02:21 - 48.666 that you're commencing in the court, you've got to name all of the owners,

02:21 - 53.671 all of those folks who have a joint interest in the property.

02:21 - 56.975 And certainly you keep going to keep the property

02:21 - 00.144 and that's I'm in the subject matter.

02:22 - 01.646 You're the subject matter.

02:22 - 04.482 That's the rule is your principle is beyond that, though.

02:22 - 10.722 Your principle is in in is if I, if I.

02:22 - 11.189 my gosh.

02:22 - 14.058 It's like if a doctor performs medical negligence.

02:22 - 14.459 Right.

02:22 - 17.462 And you sue the doctor for medical negligence,

02:22 - 20.598 you'd you do discovery to find out

02:22 - 25.937 every potentially executable property that that doctor could have.

02:22 - 28.206 And if he or she

02:22 - 31.943 jointly owns any property, maybe it's a car,

02:22 - 35.046 maybe it's a second home, maybe it's stock.

02:22 - 37.549 You know, maybe it's any number of things.

02:22 - 40.518 You your rule that you're saying here is

02:22 - 44.689 you have to name every single person, which with that

02:22 - 48.927 physician has some sort of joint property interest as a name defendant,

02:22 - 52.363 even though they have absolutely nothing to do with the medical negligence.

02:22 - 54.198 Of course, Your Honor, that's not what we're suggesting.

02:22 - 55.500 We're suggesting

02:22 - 59.971 that we focus on the rule which says which is the subject matter of the action.

02:23 - 03.541 The subject matter of this action was the premises that was jointly owned

02:23 - 06.311 by the subject matter. My action was the negligence.

02:23 - 06.878 That's correct.

02:23 - 10.815 Which is stemming from an incident occurring.

02:23 - 11.616 Mike,

02:23 - 15.386 My client's jointly owned property with his brother.

02:23 - 17.088 That's our position.

02:23 - 19.591 Okay? And that's true. That's true.

02:23 - 23.695 But the only

02:23 - 25.396 if if a judgment

02:23 - 29.567 is entered and later execution takes place even before execution,

02:23 - 33.271 the judgment is entered in, the lean is placed.

02:23 - 40.545 The lean would be placed only on your client's share of the property.

02:23 - 41.346 That is correct.

02:23 - 43.348 The property is sold.

02:23 - 48.252 I the plaintiffs in this case would be paid

02:23 - 52.724 out of the sale of the property to the extent of your client's interest.

02:23 - 56.394 The other co tenants interests would not be affected.

02:23 - 02.133 The co tenant would receive his share of the sale of the property.

02:24 - 02.834 That's Why?

02:24 - 05.770 I think it's it's

02:24 - 09.707 the this whole issue of indispensable party

02:24 - 13.711 really does have to come down to whether or not that companion's

02:24 - 18.683 Canyon's interest is somehow affected by this lawsuit.

02:24 - 22.720 And the answer is I don't see how it is.

02:24 - 24.522 I don't I don't know how that is.

02:24 - 29.527 It's just based upon, you know, the manner in which executions

02:24 - 32.196 and even it might never get to the property,

02:24 - 35.967 you know, I mean, your client may own a piece of property on his own,

02:24 - 37.235 and Ilene could be placed

02:24 - 40.371 on that other piece of property, and that would be the end of the story.

02:24 - 44.475 And the tenant in this situation wouldn't be impacted at all.

02:24 - 45.143 That's accurate.

02:24 - 52.183 Just the judgment has nothing to do with the WHO has to be sued in this case.

02:24 - 54.185 That's potentially accurate justice.

02:24 - 00.058 But we don't know what the interests are vis a vis the joint owners

02:25 - 04.962 of the property of any property when a lawsuit is commenced.

02:25 - 08.666 So it's my my client's position

02:25 - 13.805 that to 2 to 7 A protects the non sued parties interest

02:25 - 16.207 because there could be all kinds of machinations

02:25 - 19.210 that could exist with respect to the ownership of the property.

02:25 - 23.147 And if there's a judgment that results in a lean on the property,

02:25 - 27.985 it may be the property could be sold and everybody goes the merry way.

02:25 - 29.353 But that's just one scenario.

02:25 - 34.058 There are other many potential other scenarios where the non sued

02:25 - 39.397 parties interest could be encumbered, could be prejudiced by their

02:25 - 43.568 not being able to participate in the litigation, not being able to participate,

02:25 - 47.438 don't they have a right to kind of seek to avoid the judgment against them?

02:25 - 50.508 Potentially, But that's expensive to justice.

02:25 - 54.112 And that goes also to this issue of

02:25 - 57.215 you're a non party and there you are going along with

02:25 - 59.884 your life merrily still six and one half does in the other

02:25 - 02.887 because if I'm an out of possession landlord, I'm owner

02:26 - 05.757 and I didn't have anything to do with that ownership or

02:26 - 08.659 excuse me, the maintenance of the property and I can name that,

02:26 - 12.196 but that means I have to go out, retain counsel and either engage

02:26 - 15.900 in pre complaint discovery or discovery or file preliminary objections.

02:26 - 18.569 It's not going to cost me money no matter how you look at it.

02:26 - 20.772 In the scenario you just gave.

02:26 - 23.808 Doesn't the plaintiff filed a lawsuit against the defendant at their own risk?

02:26 - 26.244 They don't need somebody that's potentially liable.

02:26 - 28.713 They can't execute or enter judgment against that person

02:26 - 31.783 because their due process rights are implicated.

02:26 - 32.316 That's right.

02:26 - 36.154 But getting back, I understand what your Your Honor is saying.

02:26 - 39.490 But again, it's our position

02:26 - 43.728 that the intent of 2227a adopted by Minner

02:26 - 48.299 is that the non two parties rights also have to be protected.

02:26 - 51.803 And that's the subject matter of the action

02:26 - 55.573 is the liability associated with the premises.

02:26 - 59.377 The Court

02:26 - 00.945 In order for you to prevail,

02:27 - 04.482 must the subject matter of the action, the life

02:27 - 08.686 a liability claim relating to the premise because of it,

02:27 - 12.423 if the subject matter of the action is, is it,

02:27 - 16.861 is it tort action, then

02:27 - 19.063 then thinking of Justice Robson's doctor?

02:27 - 19.764 Right.

02:27 - 22.767 So you lose under that

02:27 - 28.639 because then then the is if say a physician owns owns a property

02:27 - 34.178 and he or she is a tenant in common with some other person.

02:27 - 39.684 Right.

02:27 - 41.786 Well, may I respond?

02:27 - 42.386 Yeah.

02:27 - 44.856 I'm just trying to walk through this because there's

02:27 - 47.825 then you've got his contract, then you've got his car accident scenario.

02:27 - 49.227 Right. How should we come down on it?

02:27 - 50.261 So it is different.

02:27 - 54.065 So it's different than Judge Justice's

02:27 - 58.035 oatmeal manufacture claim.

02:27 - 59.971 If we have one of those, it's different than the automobile

02:27 - 04.508 is different than the doctor, because the case law specifically states

02:28 - 07.178 that in an action pertaining to personal injuries

02:28 - 10.181 related to a premises, that's what Minner is all about.

02:28 - 14.385 That's what Moorehead was about, and that's what Enright was about.

02:28 - 19.490 Now, Moorehead and Enright, those dealt with the husband and wife situation, but

02:28 - 22.593 all of those cases dealt specifically with

02:28 - 26.697 personal injury actions pertaining to

02:28 - 28.332 premises liability.

02:28 - 32.436 So it is different, but that's because they had liability

02:28 - 35.773 for what happened on the property,

02:28 - 36.340 correct?

02:28 - 37.308 That's accurate.

02:28 - 39.944 Okay. I mean, it doesn't have to do with anything else.

02:28 - 43.948 And your your opposing counsel,

02:28 - 47.685 I decided or didn't have any other choice

02:28 - 52.156 but to only sue the tenant in possession of the property,

02:28 - 56.594 therefore willing to forego any claim against other cocaine

02:28 - 00.564 who who may have liability, might have liability.

02:29 - 02.667 But she just decided not to sue them. Why?

02:29 - 04.669 Why does it why isn't that All right?

02:29 - 09.340 Well, Judge Justice, I do need to respond that in the appellant's brief,

02:29 - 12.376 the appellant states that my client

02:29 - 15.947 never disclosed that the property

02:29 - 20.017 was jointly owned with his brother before the statute of limitations had expired.

02:29 - 25.856 However, the record in this case, 30 2fi believe it is, or be specific,

02:29 - 29.660 has contained in their four interrogatory answers

02:29 - 33.965 that my client gave for the statute of limitations had expired,

02:29 - 36.867 saying prop I owned the property jointly

02:29 - 39.870 with my brother Muhammad Zar fuel alarm

02:29 - 42.673 so kind of gets to

02:29 - 46.978 it gets to those issues as well that the appellant did have notice

02:29 - 49.847 prior to the expiration the statute of limitations

02:29 - 54.852 and chose for whatever reason, strategic or whatever, perhaps other reasons.

02:29 - 58.422 But rule two 2 to 7 a

02:29 - 59.857 get back to it

02:29 - 03.327 is designed to protect the non sued joint owner.

02:30 - 04.795 That's our position.

02:30 - 07.665 Okay, I think we understand both of your arguments.

02:30 - 09.233 Thank you very much.

02:30 - 11.869 The next case is Commonwealth V Walker.

02:30 - 15.506 In this case, the defendant was convicted of numerous sexual offenses,

02:30 - 19.410 including rape of a child and other related violations.

02:30 - 22.847 At issue in this case is a question that the Commonwealth was permitted

02:30 - 25.850 to pose during the jury selection process.

02:30 - 28.886 Now, the jury selection process and how jurors are questioned

02:30 - 32.123 varies from county to county in the state of Pennsylvania.

02:30 - 35.493 Sometimes attorneys are permitted to ask the questions themselves.

02:30 - 39.563 Other times, the attorneys are requested to submit questions to the judge,

02:30 - 42.867 who will then ask questions of the prospective jurors

02:30 - 46.737 to make a determination whether or not they can be fair and impartial.

02:30 - 49.607 Specifically, in this case, the Commonwealth requested

02:30 - 52.943 and was permitted to have the following question

02:30 - 57.782 over objection by the defendant posed to the jury.

02:30 - 59.984 The question was under Pennsylvania law.

02:30 - 03.187 The testimony of the alleged victim standing alone,

02:31 - 06.824 if believed by you, is sufficient proof upon which to find

02:31 - 10.594 the defendant guilty in a sexual assault case.

02:31 - 12.696 Thus, you may find the defendant guilty.

02:31 - 16.901 If the testimony of the alleged victim convinces you beyond a reasonable doubt

02:31 - 21.639 that the defendant is guilty, would you be able to follow this principle of law?

02:31 - 25.176 And that was the question that the Commonwealth was permitted

02:31 - 28.179 to ask the particular jurors in this case.

02:31 - 32.049 Now, the purpose of jury selection is to make sure that we choose a fair,

02:31 - 34.919 impartial, competent jury.

02:31 - 39.490 It is not designed to empanel a jury sympathetic to one side or the other.

02:31 - 43.394 It is not to be used to ascertain a prospective prospective jurors

02:31 - 46.630 present impressions or attitude.

02:31 - 50.801 And neither counsel for the defense or the Commonwealth should be permitted

02:31 - 56.874 to ask direct or hypothetical questions designed to disclose when a juror

02:31 - 01.912 might have a present impression or opinion as to what his decision

02:32 - 07.184 will likely be under certain facts which may be developed in this case.

02:32 - 10.855 So in this case, the defendant is arguing that the question that was asked

02:32 - 14.859 that would reveal how someone would approach the facts of the case, a bar,

02:32 - 17.928 as opposed to whether the defendant is fair in general

02:32 - 20.998 are improper, that the question should not have been asked.

02:32 - 25.970 And because that question was asked, the defendant was denied

02:32 - 31.242 a proper trial as well as it violated his constitutional rights.

02:32 - 33.110 So let's go to the case.

02:32 - 35.579 You may proceed. Thank you.

02:32 - 37.214 Good afternoon, Your Honor.

02:32 - 39.583 May please the court. My name is Jamie Schumann

02:32 - 42.553 from the Allegheny County Office of the Public Defender.

02:32 - 44.288 I represent the appellant, Mr.

02:32 - 45.756 Harold Walker.

02:32 - 48.459 And our argument is that the what?

02:32 - 52.296 Your question at issue here is impermissible as a matter of law.

02:32 - 57.601 The law states that voir dire must not be used to impanel jurors

02:32 - 02.473 sympathetic to the positions of one party or to disclose what is jurors

02:33 - 06.377 opinion would be under facts that were to be developed at trial.

02:33 - 10.014 And that's what this question sought to do.

02:33 - 12.349 Is it just it

02:33 - 15.352 indicates somebody is biased like the normal question.

02:33 - 18.189 So you have to ask your family, who's law enforcement?

02:33 - 21.692 Do you believe the testimony of a police officer more than you would

02:33 - 25.462 average citizens there if they're there for the time?

02:33 - 26.864 Correct.

02:33 - 29.600 Those questions are part of the standard form, Yes.

02:33 - 30.768 The other side.

02:33 - 32.636 So this is different.

02:33 - 36.941 Your Honor, what it's doing is giving the Commonwealth

02:33 - 39.944 the tools to impanel people

02:33 - 43.747 who agree that you can have can convict on little

02:33 - 47.585 to no corroborating evidence of people, express doubt

02:33 - 51.855 about the ability to convict on little to no corroborating evidence

02:33 - 54.925 gives the Commonwealth the tools to strike them.

02:33 - 58.462 It's especially problematic because a lack of evidence

02:33 - 01.298 is a legitimate basis to acquit.

02:34 - 04.635 The standard jury instructions for reasonable doubt.

02:34 - 07.071 State This is state that

02:34 - 09.073 will lack of evidence.

02:34 - 12.042 Isn't there a jury instruction at the end saying that

02:34 - 16.513 what a lawyer says or questions is not evidence, it's

02:34 - 21.252 the responses from the witnesses and to what?

02:34 - 24.521 Was there an inappropriate jury instruction that was not provided

02:34 - 28.926 that would in fact make this harmless error analysis.

02:34 - 34.598 So this question, if I'm getting you right, this

02:34 - 38.936 this what your question is based on a jury instruction that was given

02:34 - 43.207 in this case as well, you're saying that this is an inappropriate,

02:34 - 44.308 I'm sure, correct?

02:34 - 45.676 Well, I don't know about that.

02:34 - 48.979 But let's say the fact is it's eliciting

02:34 - 54.785 by or favoritism, whatever it may be.

02:34 - 59.423 Well, isn't it also just reflective of a principle of law?

02:34 - 02.926 The question that's being asked, isn't that a true

02:35 - 07.131 statement of the legal principle that the testimony

02:35 - 12.803 of an alleged victim standing alone, if believed, is sufficient for getting

02:35 - 15.172 the appropriate jury instruction is similar,

02:35 - 18.742 which in essence makes it so?

02:35 - 22.780 So I believe this is a structural error analysis.

02:35 - 28.452 But before getting into that, this is

02:35 - 31.455 it's an inaccurate version of a legal principle.

02:35 - 32.456 In what way?

02:35 - 36.093 So it doesn't include the requirement

02:35 - 39.963 that you need to prove every element beyond a reasonable doubt.

02:35 - 42.066 So the question

02:35 - 46.103 says you if if believed by you the testimony of the alleged victim

02:35 - 50.674 standing alone is sufficient proof upon which to find the defendant guilty

02:35 - 55.446 in a sexual assault case, but it's missing that

02:35 - 56.980 you need to find every element.

02:35 - 59.983 So if you take your. But isn't that part of the final charge?

02:35 - 02.286 Pardon me? Isn't that fine? That's part of the final charge.

02:36 - 04.088 So under the totality of the circumstances,

02:36 - 07.858 when a judge says at the end of the case the defendant's been charged with

02:36 - 11.395 these particular crimes, he then instructs the jury that they have to find each

02:36 - 14.398 and every element of the crime charge, even if they don't do it in voir dire.

02:36 - 18.202 So it is part of the final charge, your Honor,

02:36 - 21.305 but it is out of context

02:36 - 24.942 in misleading and inaccurate to have it in also.

02:36 - 28.245 Well, dear, because

02:36 - 32.349 if you take this question as it's written,

02:36 - 36.987 you know, if someone is charged with rape of a child and

02:36 - 40.791 five different charges, as often happens in these types of cases,

02:36 - 43.861 if there is an evidence of rape of a child,

02:36 - 49.566 but the alleged victim's testimony shows evidence of the other

02:36 - 54.671 you taking this at face value, you can convict across the board.

02:36 - 58.709 And I don't think we can expect with a lay person juror

02:36 - 01.945 who is not a lawyer, to be able to understand

02:37 - 04.948 that you need to

02:37 - 06.950 that you need to prove every element.

02:37 - 11.188 So if if someone is charged with aggravated indecent assault and

02:37 - 16.460 indecent assault and everything is proven, but penetration under the plain

02:37 - 21.398 text of this question, it's okay to convict across the board.

02:37 - 24.835 So this question contains

02:37 - 25.736 a legal error.

02:37 - 28.205 And I think that,

02:37 - 30.174 you know, it's an error to give the question

02:37 - 33.911 if there with such as thus you may find the defendant guilty.

02:37 - 36.246 If the testimony of the alleged victim

02:37 - 39.917 convinces you beyond a reasonable doubt that the defendant is guilty.

02:37 - 42.553 Would you be able to follow that principle?

02:37 - 44.254 And obviously, is justice McCaffery

02:37 - 48.125 You said it was going to be instructions as to what the law.

02:37 - 48.725 Right.

02:37 - 51.528 So so what the question is saying is

02:37 - 56.200 if the witness testifies and meets the elements, that that is sufficient,

02:37 - 00.237 their needs, not their need not be the missing gun or the smoking gun

02:38 - 04.942 or the law and order, where the next.

02:38 - 09.246 So even though there were jury instructions

02:38 - 12.549 that might provide more context,

02:38 - 16.520 this is certainly misleading and confusing and it's because it's out of context.

02:38 - 20.657 But I think it's the wrong analysis to look at the end of the trial,

02:38 - 23.827 because this question

02:38 - 26.897 affects the composition of the of the jury,

02:38 - 31.568 and it gets rid of the presumption that we have a jury that is fair

02:38 - 36.840 and impartial in saying, do you believe a cop more than a person,

02:38 - 38.809 a layperson

02:38 - 41.278 or an expert witness, more than one person?

02:38 - 43.113 How is it any different?

02:38 - 45.249 Sure. Well,

02:38 - 48.685 I think those types of questions that are, you know, from the the standard

02:38 - 55.092 form of the cop that's more about probing, no fixed opinions.

02:38 - 01.031 But that's what's so so

02:39 - 02.833 I think it would be useful to compare it

02:39 - 06.036 to the Commonwealth in this case also requested questions.

02:39 - 09.439 Do you have like

02:39 - 15.679 have you ever been an alleged victim or been accused of

02:39 - 18.148 unwanted sexual misconduct?

02:39 - 21.084 I think those questions were go

02:39 - 24.321 to a person's qualifications,

02:39 - 29.259 whether they can be fair in general, whether they can listen impartially

02:39 - 33.830 to the evidence, deliberate, impartially and impartially, follow

02:39 - 36.633 the trial court's instructions,

02:39 - 41.972 because they go to someone's life by life experiences if they have bias.

02:39 - 44.408 But I think so, yeah.

02:39 - 47.644 You ask if you believe a police officer

02:39 - 53.383 yet more than a witness, you're trying to determine

02:39 - 54.251 exactly.

02:39 - 55.686 This is different.

02:39 - 58.889 This is asking for is to follow the law.

02:39 - 00.290 So this

02:40 - 04.728 or an inability to follow the law, I mean, or an inability to follow the law.

02:40 - 06.096 It's not just the general.

02:40 - 09.533 Can you follow the court's

02:40 - 13.236 recitation of the law, which is part of the standard instructions?

02:40 - 13.570 Yeah.

02:40 - 17.674 But with these the particular jury, the particular voir dire question

02:40 - 20.811 you're asking about are are given after the general instructions.

02:40 - 22.813 In other words, panel comes in your room. Right.

02:40 - 26.183 You've been some jury selection panel comes in your room with 40 people.

02:40 - 27.851 You give the general instructions

02:40 - 31.455 if they raise their hand to a particular one, you mark down the answer

02:40 - 35.258 to a particular question and then you do individual voir dire.

02:40 - 37.628 This particular question that you're complaining about

02:40 - 40.631 is given in the context of individual order.

02:40 - 43.834 And then you ask them whether or not you explained them to the law.

02:40 - 46.503 Somebody says, Well, yeah, I don't know if I can follow that.

02:40 - 50.207 You explain them what the law is and then you say to them, Can you?

02:40 - 52.109 That's the law. That's how I will instruct you.

02:40 - 54.911 My job is to instruct you in the law. Your job is to follow the law.

02:40 - 56.179 Can you follow that instruction?

02:40 - 58.515 And if they say no, they're stretching for force.

02:40 - 00.651 So there's a chance to rehabilitate them.

02:41 - 03.620 If they say they can't answer this or they can't follow this instruction.

02:41 - 05.822 But you're addressing the problem with this question

02:41 - 09.192 is it's outside of the scope of voir dire to begin with,

02:41 - 13.930 because it's not trying to expose whether you are

02:41 - 17.334 that threshold question of whether you have bias such

02:41 - 21.204 that you can't listen to all of the evidence instruction.

02:41 - 24.841 Isn't it designed to dispel

02:41 - 26.643 impressions that the

02:41 - 30.614 public may have this legal principle that it's

02:41 - 34.551 okay to the legal principle that says

02:41 - 38.255 testimony of the victim alone, if believed sufficient proof

02:41 - 42.492 to convict beyond a reasonable doubt?

02:41 - 44.428 Isn't that legal

02:41 - 50.734 principle itself a reaction to society today and all the,

02:41 - 54.671 you know, television programing on DNA and evidence,

02:41 - 00.010 whereas there's this supposed impression in the public

02:42 - 04.181 that individual testimony by a victim is not enough.

02:42 - 07.751 You have to have all this other forensic evidence.

02:42 - 11.321 So there is some logic behind

02:42 - 16.560 trying to find out if a juror can follow this principle of law.

02:42 - 22.265 So, Your Honor, that wasn't the rationale that the D.A.

02:42 - 23.800 gave at trial.

02:42 - 29.873 You know, this is a this is a question that in Allegheny County,

02:42 - 33.176 in this particular courtroom, it's routine practice

02:42 - 37.681 to ask these questions in child sexual assault cases.

02:42 - 41.051 And my point of view is that it's outside the scope of voir

02:42 - 44.321 dire because it's not gauging qualifications.

02:42 - 49.493 It's trying to find out your a the jurors

02:42 - 51.228 viewpoint on a specific

02:42 - 55.031 legal principle and trying to find people who,

02:42 - 57.734 you know, are favorable to the Commonwealth's viewpoint

02:42 - 01.171 that you can convict, but it's not favorable to the Commonwealth's viewpoint.

02:43 - 05.075 It's favorable to following the law.

02:43 - 08.445 You know, I think that's a reasonable question to ask.

02:43 - 13.316 If a juror or a proposed juror is going to be able

02:43 - 17.020 to follow a principle of law, which this is.

02:43 - 20.891 Now, if this were not a principle of law, I'd agree with, you know,

02:43 - 22.592 they shouldn't be asked this question.

02:43 - 27.597 But I just guess I'm struggling to find the harm in asking the question

02:43 - 31.802 whether a juror can follow this particular principle of law.

02:43 - 36.973 Your Honor, the harm is that it is designed to expose people who have

02:43 - 41.244 leanings to one side or the other, and that's not the purpose of lawyer.

02:43 - 45.182 The case law says that voir dire is to find people who are, you know,

02:43 - 49.085 fair and generally impartial to listen to the court's instructions.

02:43 - 53.523 Another problem with this is there is, you know, a line of cases, a rule

02:43 - 58.695 that that says the questions in the nature of jury instructions

02:43 - 01.932 are outside the scope of four broader questions

02:44 - 04.935 involving the definition of a legal principle.

02:44 - 08.805 That's the scope of the trial court to give those instructions

02:44 - 11.474 after the evidence against you about those instructions.

02:44 - 13.944 Is it your view that

02:44 - 15.679 that the

02:44 - 17.747 the instructions that were given

02:44 - 22.385 on reasonable doubt and the burden on the Commonwealth

02:44 - 27.023 to establish every element of every crime charged

02:44 - 31.094 did not cure the incomplete nature

02:44 - 35.332 of the voir dire question Yes, that's my view.

02:44 - 40.237 And why is that, given the the small

02:44 - 44.274 my understanding of the incompletions and tell me if I'm wrong

02:44 - 48.612 is the

02:44 - 49.412 absence

02:44 - 52.415 of the words beyond a reasonable doubt

02:44 - 57.254 after the clause, if believed by you in line two, that's one thing.

02:44 - 02.092 And then in this in the penultimate line

02:45 - 03.660 after the word victim

02:45 - 07.264 testimony of the alleged victim,

02:45 - 11.401 it should have said establishes each element of the crime as my right.

02:45 - 12.636 Those are the two really.

02:45 - 16.406 Each element is is is the beyond a reasonable doubt is there?

02:45 - 19.242 Well, yeah, Chief, but it's not there up top.

02:45 - 23.446 Yeah, but you beyond a reasonable doubt which is consistent with the jury charge.

02:45 - 25.315 Right.

02:45 - 28.585 The question is consistent with the jury charge and I have an issue

02:45 - 31.755 of the jury charge too, but I know that's not before, Your Honor. So.

02:45 - 38.161 So my question is, given that voir dire is to get a

02:45 - 41.865 an impartial jury pool,

02:45 - 48.505 why the the charge, the latter charge

02:45 - 51.341 before the jury was sent out couldn't cure

02:45 - 56.212 those two incompletions, which are ostensibly pretty minor.

02:45 - 58.782 So, Your Honor,

02:45 - 04.187 the charge doesn't cure the completions because the damage has already been done,

02:46 - 08.491 because the problem is that this affects

02:46 - 10.160 the composition of the jury.

02:46 - 11.561 And due

02:46 - 16.032 to step, that's my issue with the question is not just that it's inaccurate.

02:46 - 20.870 And I think an incomplete question statement is is inaccurate, but also

02:46 - 26.977 excuse me that it is outside the scope of what here, because it

02:46 - 28.478 tries to give the Commonwealth

02:46 - 32.682 the tools to weed out jurors who were less inclined.

02:46 - 34.651 So it's a selection bias argument.

02:46 - 36.953 It's not it's yeah.

02:46 - 42.692 So your argument isn't so much that the ADA was allowed to

02:46 - 45.695 to suggest a direction

02:46 - 49.599 to the jury here was that that it was

02:46 - 52.202 actually affecting the composition of people.

02:46 - 52.869 Exactly.

02:46 - 58.675 So it previews what the Commonwealth's, you know, state of evidence

02:46 - 03.046 and strategy is and it tries to find jurors who will agree with that.

02:47 - 09.219 And I cite in my in my brief to a lot of analogies cases I point to moon

02:47 - 12.522 and there this court found improper a question

02:47 - 16.559 that defined the insanity defense and asked jurors

02:47 - 20.897 if they'd be able to find someone guilty if he can't distinguish right from wrong.

02:47 - 24.434 The reason this question was improper was because its purpose

02:47 - 28.304 was to have jurors indicate in advance how they decide

02:47 - 32.642 under a certain state of evidence and to commit them to a definitive view.

02:47 - 34.611 The question here is no different.

02:47 - 39.482 It provides a legal principle that is germane to the case

02:47 - 43.920 and tries to find out how jurors would would would decide.

02:47 - 48.491 Would you compare this question to the questions asked to a death

02:47 - 53.029 qualified a jury about could they apply the death penalty

02:47 - 57.801 if the if the facts and the law called for it?

02:47 - 59.636 Well,

02:47 - 01.938 the case law shows that there is

02:48 - 05.542 an exception for death penalty cases

02:48 - 10.613 where there is a like a bit more broad probing is allowed

02:48 - 15.318 just because of the the nature of those cases.

02:48 - 19.756 I believe the case law says that cases of widespread public concern,

02:48 - 24.194 you know, but even in the case of Bomer that I did, I cite in my brief,

02:48 - 30.733 you know, a question that was trying to probe how jurors

02:48 - 35.305 would react to have a favorable view of the mitigating evidence

02:48 - 40.443 that was that was not allowed for the same reasons that I'm saying here.

02:48 - 46.015 And that is trying to it is a one sided way to find out

02:48 - 49.452 that the death penalty questions are different, different

02:48 - 53.756 because of a wide spread that the case law seems to indicate.

02:48 - 00.363 There's a kind of a general rule that these questions that are in the nature

02:49 - 05.802 of jurisdiction are not allowed that pertain to legal principles.

02:49 - 10.874 But when it's a case, when it's an issue of widespread public concern is death.

02:49 - 15.011 Isn't the sexual abuse of children an issue of

02:49 - 15.912 public concern?

02:49 - 19.215 I think that the death penalty cases are kind

02:49 - 23.052 of singled out as as as really different.

02:49 - 27.290 The Commonwealth made no showing first that this was a mistake.

02:49 - 30.360 Yeah, of course, if I'm wrong,

02:49 - 32.929 I thought that is the law

02:49 - 37.033 regarding death penalty cases, which is different.

02:49 - 40.036 In the case, there was a showing

02:49 - 43.439 that there was a widespread concern

02:49 - 49.045 that a jury would not be able to impose a death penalty.

02:49 - 52.749 So there were and there was a showing in those early cases

02:49 - 57.020 that that was indeed the widespread concern here.

02:49 - 58.221 There was no showing.

02:49 - 01.925 And I don't think that we can we can't just say,

02:50 - 06.429 hey, this is widespread public concern because then

02:50 - 08.231 the murder case, this kind of like

02:50 - 11.801 every case, that's what I am grappling with here.

02:50 - 15.471 This this notion that you can convict

02:50 - 18.741 on uncorroborated evidence is law

02:50 - 21.611 in every so crappy.

02:50 - 25.381 So forget about sexual assault. Yes. So

02:50 - 28.451 the commonwealth,

02:50 - 32.922 you know, when it advanced this question, said it is an accurate

02:50 - 39.429 portrayal of Section 3106 and then the superior court

02:50 - 41.965 said it reflects that as well.

02:50 - 45.468 But the question actually

02:50 - 47.904 that that section that that that provision

02:50 - 51.774 has three prongs to it it and only picked out one

02:50 - 54.310 and by singling out

02:50 - 58.748 that in sex offense cases there is this

02:50 - 02.252 is the alleged victim's testimony standing alone is enough

02:51 - 06.889 by singling that out, it suggests that there is a special standard.

02:51 - 11.661 And that's exactly, ironically, what section 30 100

02:51 - 16.532 30 106 tries or wants to prevent,

02:51 - 21.104 because the three requirements of 31 or 66 are one.

02:51 - 25.208 The credibility of the complainant in a sex offense case shall be determined

02:51 - 27.043 by the same standard as other cases.

02:51 - 30.546 As for other crimes to the testimony of the complainant,

02:51 - 35.018 the sex offense case need not be corroborated and three

02:51 - 38.388 no instruction shall be given, cautioning the jury to view the complainant's

02:51 - 42.759 testimony in sex offense cases differently than in other cases.

02:51 - 47.664 So this question ignores requirements one in three, but it only says

02:51 - 52.502 the testimony in the sex offense cases need not be corroborated

02:51 - 56.539 and the act of singling out sex offense cases,

02:51 - 00.443 but not explaining that these cases should be viewed

02:52 - 03.046 by the same standard as others who actually suggest

02:52 - 05.114 that a special standard exists.

02:52 - 06.549 There's a Supreme Court case.

02:52 - 11.287 Richardson kind of use that rationale for

02:52 - 16.826 there's a question about whether racial prejudice.

02:52 - 19.829 Can you ask if you're a prospective juror about racial prejudice.

02:52 - 24.667 And in that case, the defendant was black and the alleged victim was white.

02:52 - 27.003 But they said

02:52 - 29.572 there was no showing here, that this was like an explosive,

02:52 - 31.140 highly racially sensitive case.

02:52 - 36.012 And just by asking that question, it creates extra importance

02:52 - 39.182 and creates an issue where there might not have were there wasn't one

02:52 - 40.083 in the eyes of the jurors.

02:52 - 43.753 And my argument is that by singling this out,

02:52 - 46.723 it suggests that sex offense cases should be treated differently.

02:52 - 50.893 But the law says clearly that they share with the court.

02:52 - 54.063 Maybe I'm not sure how you distinguish

02:52 - 00.970 what the question with standard jury instruction, what 2013 did.

02:53 - 03.172 I'm sorry, can you repeat that?

02:53 - 06.876 Shared with you how you think

02:53 - 11.214 that jury instruction that I mean, the what your question that was asked

02:53 - 16.152 with the standard criminal jury instruction 4.13 that.

02:53 - 17.653 Sure,

02:53 - 20.857 I agree that they use

02:53 - 22.325 similar language.

02:53 - 23.893 The difference is the jury.

02:53 - 26.863 I mean, what's different so that the difference,

02:53 - 30.032 Your Honor, is that for the jury instruction,

02:53 - 33.469 there's other instructions that provide

02:53 - 37.240 context and say, you know, you have to

02:53 - 40.643 look at all of the instructions, you have to consider every element.

02:53 - 45.615 But the but again, it's not the problem is that

02:53 - 48.885 looking at the jury instructions focuses on the end of the trial.

02:53 - 52.588 And I'm saying by asking this question as the beginning,

02:53 - 56.959 when it's outside the scope or idea, because voir dire, the law

02:53 - 01.431 says that you can't ask questions that probe one side's trial strategy

02:54 - 05.968 or try to get information gathered in advance.

02:54 - 11.908 How the jurors will decide based on the facts of the case,

02:54 - 12.708 those types of

02:54 - 15.711 questions simply are not allowed.

02:54 - 19.782 And when you're asking this, yes, I

02:54 - 22.885 I'm trying to I'm trying to I completely get your point,

02:54 - 26.322 which is which is you can't charge on part of the law.

02:54 - 27.557 You can't voir dire.

02:54 - 30.159 I'm part of the law and remedy it by charging on all of it.

02:54 - 32.195 I think that's your point, right?

02:54 - 36.532 I'm trying to understand where is this line in our jurisprudence that set?

02:54 - 40.603 Because what you're basically saying is if they voir dire on that question,

02:54 - 43.406 you should be entitled to voir dire on every jury

02:54 - 46.642 instruction that could possibly given this jury.

02:54 - 49.078 And and is that what our law says is

02:54 - 53.015 were the purpose of voir dire is to or voir dire depending on where you're

02:54 - 56.919 my cousin Danny depends on what part of the state you're from.

02:54 - 58.721 Probably I'm probably pronouncing it wrong.

02:54 - 01.224 No, no, you're right. Okay.

02:55 - 04.760 If what I'm trying to understand is, is

02:55 - 08.331 what is an appropriate jury question

02:55 - 12.668 that incorporates a charge

02:55 - 15.738 in what is an inappropriate jury question,

02:55 - 20.209 that incorporates a charge, or should the law simply be?

02:55 - 23.145 You can't pre charge

02:55 - 26.415 a juror that isn't yet empaneled.

02:55 - 29.118 So, Your Honor, I think the appropriate question

02:55 - 32.989 is the one in the standard form that asks, are you able

02:55 - 36.726 to follow the court's instructions on the law?

02:55 - 41.197 Because that's what you're just trying to find people who are fair in general

02:55 - 45.535 not to kind of sneak ahead and find out how they're going to decide.

02:55 - 48.371 And there's case law from the Supreme Court

02:55 - 53.910 that shows this in Calhoun, the court found that you can't ask

02:55 - 57.380 a broader question that defines the insanity defense and ask

02:55 - 00.383 about jurors ability to apply that principle.

02:56 - 03.786 It says the court said counsel may not examiner prepares

02:56 - 07.456 proposed juror about his understanding of the law.

02:56 - 10.993 One may be asked the broad question whether he would accept an act

02:56 - 13.963 upon the law as stated to him by the court.

02:56 - 18.434 And this is as far as the examination on the voir dire, may properly proceed.

02:56 - 19.669 So why isn't that why?

02:56 - 23.139 Why, why hasn't why isn't that the principle that should apply here?

02:56 - 28.477 And why isn't that the principle that the trial court applied here?

02:56 - 30.813 The only question you can ask

02:56 - 34.784 with regard to your ability to follow the law is a general question.

02:56 - 39.055 If I charge you that the law is X, will you be able to follow it?

02:56 - 42.458 Why shouldn't that be the limit of a charge?

02:56 - 44.760 I, I agree with you.

02:56 - 48.798 I mean, I you know, do you concede that on the standard form,

02:56 - 53.903 there are these very broad questions,

02:56 - 57.340 you know, about constitutional principles that are relevant in every case?

02:56 - 00.576 Do you agree with the legal principle that the defendant is presumed

02:57 - 03.579 guilty, excuse me, innocent?

02:57 - 06.282 So so so what I'm wondering is there

02:57 - 08.117 you know, this kind of goes to the chief justice question.

02:57 - 12.221 So there's a general rule that you can't pre charge on the law. Yes.

02:57 - 15.424 Other than to ask where you follow the charge,

02:57 - 19.061 There is where you charge, where you follow the law that I charge you.

02:57 - 20.262 There are exceptions.

02:57 - 23.265 One, when a constitutional

02:57 - 26.636 protection is particularly implicated, you get the charge on the proof

02:57 - 28.671 beyond a reasonable doubt presumption of innocence.

02:57 - 31.240 You can charge you you can you can inquire on that.

02:57 - 34.677 Well, there are exceptions in the standard form that is very broad,

02:57 - 39.348 that are applicable to every case, but those are to preserve constitutional.

02:57 - 41.550 The constitutional structure of the criminal trial.

02:57 - 42.451 Correct?

02:57 - 43.419 Yeah. Okay.

02:57 - 46.956 And then there's this exception for death penalty cases.

02:57 - 48.290 Correct. Okay.

02:57 - 54.063 And you're saying that this charge, which relates to a substantive legal

02:57 - 57.500 principle, does not fall within the constitutional

02:57 - 01.570 or the death penalty and therefore should just be barred by a precedent

02:58 - 04.073 that says you can't pre-charge a jury on war barred.

02:58 - 06.442 Yes, Your Honor, barred by that precedent.

02:58 - 08.778 And I'm so you finish I'm sorry. Yeah.

02:58 - 15.851 And also by the precedent that says that you can't

02:58 - 16.585 use voir

02:58 - 20.189 dire to impanel jurors sympathetic to the positions of one party

02:58 - 25.494 or to disclose in advance what jurors opinions are to be on the facts of a case.

02:58 - 29.331 But again, that said, yeah, but your argument there is is is again,

02:58 - 34.603 to my prior question on this, this is not that it was it was pre

02:58 - 39.542 charging the jury, as it were, but rather slanting the composition of the jury.

02:58 - 41.644 Right.

02:58 - 42.478 I'd say both.

02:58 - 47.616 But the huge problem with it's slanting the composition and believe it

02:58 - 52.354 I think it was okay And then and then so then the answer is

02:58 - 56.859 you've given to a couple of my colleagues questions suggests that

02:58 - 58.828 you then your

02:58 - 02.398 and your reply brief also indicates there was a judge.

02:59 - 05.167 Rangers held a pretrial hearing

02:59 - 08.204 and yes, but you're still you're still picking the jury down

02:59 - 09.538 in the assembly room.

02:59 - 12.141 You're still not in these sex crime cases.

02:59 - 16.378 There's the DA's office is now asking for this instruction.

02:59 - 19.381 Yes. Every case of child sex abuse.

02:59 - 23.119 And and you had an opportunity to contested in a hearing,

02:59 - 27.356 but you you still did the selection down in the

02:59 - 29.792 in the assembly room Act without judge wranglers

02:59 - 32.828 being in there ready to come up to the table for individual one.

02:59 - 35.798 You're an individual, correct? Yeah. Yeah.

02:59 - 38.901 So this one went to the whole panel before the individuals

02:59 - 41.904 came up to the table, which I'm not sure.

02:59 - 43.773 Can you repeat this? This question?

02:59 - 46.242 This one Your question

02:59 - 48.277 was read to the whole venire

02:59 - 51.547 prior to individual venire persons coming up to the table.

02:59 - 51.680 Right.

02:59 - 54.550 So, Your Honor, we don't have a transcript,

02:59 - 57.353 you know, from the from the grand jury, it doesn't exist.

02:59 - 00.956 But we do know from both the defense closing

03:00 - 05.594 and the Commonwealth closing that this question was asked everyone.

03:00 - 08.597 This was decided the the D.A.

03:00 - 13.636 highlighted the fact that it was asked in in its closing.

03:00 - 15.671 Yes. Yes.

03:00 - 19.041 You're going to get any responses that we were aware of.

03:00 - 23.646 Are you aware of now from the panel to the question?

03:00 - 24.380 Sure, Your Honor.

03:00 - 26.749 We you know,

03:00 - 28.250 don't have that information.

03:00 - 30.452 But what we do have

03:00 - 34.190 we know that the question was asked, the record made that clear.

03:00 - 37.359 And just the fact that this question, this improper

03:00 - 41.397 question was asked, what is our future?

03:00 - 45.401 I was just going to say it's your degree, it's our review on this question

03:00 - 50.673 as a means of discretion from the trial court.

03:00 - 52.308 The court below, Your Honor,

03:00 - 57.146 used abuse of discretion, but I actually think that the correct

03:00 - 58.881 review is is de novo.

03:00 - 03.085 So I am looking for Your Honor, is guidance on that is our argument

03:01 - 09.058 is that this question is this impermissible as a matter of law?

03:01 - 12.795 The issue of the questions, the legality, it's a question of law.

03:01 - 15.130 And then it's all I don't know.

03:01 - 16.165 There may be some debate

03:01 - 20.436 among my colleagues whether it's a de novo review, but an abuse of discretion.

03:01 - 25.374 But it puts us certainly in a difficult position to determine that

03:01 - 28.944 if we and I appreciate the fact this is a good

03:01 - 32.781 a good question to bring before the court, but it's

03:01 - 34.483 it's disappointing that we

03:01 - 38.821 don't have a transcript to show whether there was any reaction,

03:01 - 41.523 favorable or unfavorable to the question

03:01 - 45.794 because the Commonwealth has raised a harmless error argument.

03:01 - 48.063 So, Your Honor is on my hand.

03:01 - 50.065 We're a couple a couple of points. One,

03:01 - 54.003 even if this was an abuse of discretion standard, it's an abuse of discretion.

03:01 - 55.871 If the law is misapplied.

03:01 - 58.274 And our argument is that it was misapplied here.

03:01 - 04.013 But do we need to look at this under the structural error framework or counsel?

03:02 - 07.750 If you're going at direction and I was, you would be going that direction to

03:02 - 09.618 on a structural error. Yes.

03:02 - 10.719 I want to tease this out.

03:02 - 15.791 What's the difference between this and in a capital death penalty qualified jury?

03:02 - 16.759 I mean, you have to

03:02 - 19.929 ask people whether or not they can impose a death penalty for a death penalty case.

03:02 - 20.629 Right.

03:02 - 23.565 Aren't you in effect arguing that if you're asking

03:02 - 27.202 this particular question in a sex crimes case, that's a structural error,

03:02 - 29.438 that if you ask somebody if they can impose the death

03:02 - 32.107 penalty, wouldn't that also be a structural or.

03:02 - 37.947 Your Honor, I can't see that I have expertise on these death penalty cases.

03:02 - 42.685 But I do know from the research I've done that the law shows that these

03:02 - 46.922 the death penalty cases are an exception that be treated differently.

03:02 - 50.292 But back to the Senate, and it's treated differently because of the nature of what

03:02 - 51.527 you're asking the jury to do.

03:02 - 53.796 The jury is going to impose the death penalty. Right.

03:02 - 56.532 In this particular case, the reason this particular question

03:02 - 59.902 question is asked on voir dire and then ultimately given later

03:03 - 04.306 as part of a charge is because in sex crimes cases, often

03:03 - 07.476 the only thing you have because of the nature of the checks to the sex

03:03 - 11.380 crime is the testimony of one victim and one defendant.

03:03 - 15.684 So if you have a juror who's going to say, I can't find somebody guilty

03:03 - 18.988 beyond a reasonable doubt based upon one person's testimony

03:03 - 21.590 without anything else, you need to know that going in.

03:03 - 25.027 That's that's why these questions asked in sex crime cases

03:03 - 28.731 and that's why it's charged in every other case.

03:03 - 31.233 I think that's what the DA's arguing in this particular case.

03:03 - 32.201 So what would be the difference

03:03 - 35.938 between this if we found this to be structural error?

03:03 - 40.042 It's as a constitutional imperative, we would be forced to strike down

03:03 - 43.379 that any kind of question regarding death penalty, capital representation,

03:03 - 48.550 capital jurors, I would just say that based on my reading of the death penalty

03:03 - 53.989 cases, are saying that as a as an exception, why would see it?

03:03 - 56.291 What's the rationale behind an exception for the death penalty?

03:03 - 57.326 But not here?

03:03 - 02.164 The rationale that was given was that it was a proven and demonstrated

03:04 - 05.601 showing of widespread public concern

03:04 - 10.706 about people's ability to fairly apply,

03:04 - 11.874 you know,

03:04 - 14.777 the law not imposing or not imposing it.

03:04 - 21.450 And I don't think that's showing is it isn't isn't present here.

03:04 - 25.087 Yes. In fact, that for sure.

03:04 - 28.991 You you said you were unsure whether it is abuse of discretion.

03:04 - 33.295 I, I believe, are cases

03:04 - 36.999 well, at least going back to 2022 and hold

03:04 - 42.204 We said that the scope avoided here rests within the sound discretion

03:04 - 45.474 of the trial court and it won't be

03:04 - 48.477 disturbed absent probable error.

03:04 - 53.182 So all of the cases that I found when I was

03:04 - 56.952 researching this issue involved a question

03:04 - 01.156 that was reject there, that wasn't allowed,

03:05 - 04.827 and it was about the judges, the challenge

03:05 - 06.862 to the judge's discretion to reject a question.

03:05 - 09.231 This is different. This was a question that was admitted.

03:05 - 13.602 And I'm saying that it was impermissible as a matter of law.

03:05 - 17.906 And I'm looking for I believe it's a non de novo standard of review.

03:05 - 20.809 But even under the abuse of discretion,

03:05 - 21.844 you know,

03:05 - 26.048 it's an A that occurs when the law is is misapplied.

03:05 - 27.983 Yeah.

03:05 - 28.984 I mean, you've set it up.

03:05 - 32.421 The fact that this question,

03:05 - 34.923 this question is asked

03:05 - 38.861 in every case in our county that involves a sex crime involving

03:05 - 43.665 the child is routinely asked, Yes, well, is it routinely ask

03:05 - 47.503 or is it only when the Commonwealth doesn't have court reading evidence?

03:05 - 52.641 Because I think your argument here is your testing, your evidence is

03:05 - 56.512 routinely asked in in these cases where

03:05 - 58.780 there is no corroboration, said case. Yes.

03:05 - 01.416 But if you if there is a

03:06 - 06.288 another a sister or a cousin or someone in the room who watched who, you know,

03:06 - 09.892 who can testify that the act occurred, then there's cooperating evidence.

03:06 - 14.296 And this this question is not ask him before

03:06 - 18.200 I, I don't I don't think your whole point is they're testing their.

03:06 - 19.434 Yeah, exactly.

03:06 - 22.538 They're testing their evidence in this case.

03:06 - 25.240 Correct. And they're trying to find people who.

03:06 - 28.410 And that's why you're saying that this is improper.

03:06 - 29.111 Correct.

03:06 - 33.682 Or because they're testing their evidence, they're testing their trial strategy,

03:06 - 36.952 and that is not the appropriate

03:06 - 38.353 purpose for.

03:06 - 40.656 Yes. But in fairness, the D.A.

03:06 - 46.228 going up doing in to avoid dear may not know unless there's been motion

03:06 - 50.132 lemonade rulings already, may not know which other.

03:06 - 52.534 If he has other evidence, which other evidence, he's

03:06 - 53.835 going to be admitted or not.

03:06 - 57.606 So it would make sense if the Commonwealth is requesting

03:06 - 01.176 this more direct question, it would be requesting them

03:07 - 04.613 the question in all sex and all child sex assault

03:07 - 08.050 cases,

03:07 - 09.551 you know, that could be the case. Yes.

03:07 - 14.022 I want to go back to the the structural error.

03:07 - 15.490 Yeah.

03:07 - 19.494 Did you just say to just use question

03:07 - 24.433 that this question is only asked when there's a singular Commonwealth

03:07 - 29.137 witness and it's only going to be a he said no, no, I'm saying that it's commonly

03:07 - 35.477 asked in the courtroom in Allegheny County where it's child sex case.

03:07 - 40.282 So it's not challenging the evidence because

03:07 - 41.617 I gathered from Justice

03:07 - 45.287 Donohue's question to you that the purpose of this question

03:07 - 48.857 is to determine or bias the potential juror.

03:07 - 51.860 Yes, he said she said, that's not what you're saying.

03:07 - 55.430 You're saying this is a routine question asked in all sexual assault

03:07 - 58.500 cases out of what do I know?

03:07 - 02.537 I think that that is not exactly my impression.

03:08 - 05.440 I'm not a trial attorney here. I'm appellate attorney.

03:08 - 08.043 My impression is that it's asked in these cases

03:08 - 11.046 where it's the he said she said there's actually been

03:08 - 14.516 like you count two or three other superior court appeals

03:08 - 16.385 from Allegheny County on this same question.

03:08 - 20.289 And it's he said she said cases where there's no forensic evidence,

03:08 - 21.757 no eyewitness testimony.

03:08 - 24.293 Okay. You don't know of other cases.

03:08 - 28.497 I can't I can't say one way or the other.

03:08 - 30.032 But that's your whole theory, isn't it?

03:08 - 35.370 Yeah, your whole theory is your your your base objection to this question

03:08 - 38.607 is that the Commonwealth is testing their evidence.

03:08 - 43.712 Yes. In the case that this jury is going to hear. Yes.

03:08 - 45.881 And the purpose of what you're.

03:08 - 49.851 I've said before is to find people who are fair

03:08 - 53.655 and impartial and general who can deliberate with others,

03:08 - 58.694 who can listen to the court's instruction and render a fair purpose for a verdict.

03:08 - 02.731 And this goes let me call for what is in fact,

03:09 - 06.868 what are the facts of the case that this question revealed as part

03:09 - 09.471 Justice Tanya's question

03:09 - 10.205 that you

03:09 - 11.173 hear she's pregnant

03:09 - 15.711 saying you're questioning the evidence, referring to read Your grief is based

03:09 - 19.114 upon the notion that this is an attempt to test the evidence.

03:09 - 21.616 I mean, I know, I know.

03:09 - 25.454 Well, it's it's an attempt to shorten the order.

03:09 - 30.559 But my argument is it's an attempt to find jurors

03:09 - 35.731 who, you know,

03:09 - 40.569 are amenable to convicting on thin evidence,

03:09 - 44.539 who are mental, to convicting when they're off.

03:09 - 49.010 But the law is also that

03:09 - 51.546 the law is also that lack of evidence

03:09 - 56.051 is a legitimate basis to acquit, but also holds the scope of readier

03:09 - 01.990 is that you can't go into finding exactly how sure I get the side of what.

03:10 - 05.827 Okay, it's section 30 106b of the crimes code,

03:10 - 11.233 which says it pertains specifically to sexual assault cases,

03:10 - 12.234 and it provides

03:10 - 16.571 that the credibility of a complainant shall be determined by the same standard

03:10 - 22.144 applicable to complainants of other crimes and need not be corroborated.

03:10 - 24.379 But the question doesn't say that.

03:10 - 29.317 It says that it just singles out sex offense cases

03:10 - 33.321 and this is just events, but it suggests that it said it's different.

03:10 - 39.261 And I'm saying even if you were using that first prong from 3106,

03:10 - 44.065 it would be improper because of the line of cases that says that

03:10 - 46.902 questions about legal principles are improper.

03:10 - 49.671 And also, you know, the cases that say

03:10 - 53.275 that you can't disclose in advance how

03:10 - 57.379 what the leanings of a juror is going to be, I yes, I do.

03:10 - 58.547 Okay.

03:10 - 03.218 And just quickly on that, on the structural error, there's a line of cases

03:11 - 07.289 that show that structural error occurs when the jury has been selected

03:11 - 11.493 upon improper criteria, as it calls into the objectivity

03:11 - 14.796 into question, the objectivity of those deciding guilt.

03:11 - 19.301 There are also cases that say when this situation is, you know,

03:11 - 24.906 gives rise to the risk of the fact finders bias, that structural error.

03:11 - 28.076 So if that's true, why do we have Batson challenges?

03:11 - 30.512 Why are they just thrown out of structural structure?

03:11 - 34.549 Because the court found that there was a racial discriminatory purpose.

03:11 - 38.453 So if I followed your lead, we shouldn't have Batson because it's structural.

03:11 - 47.162 Why do we have

03:11 - 47.996 the case?

03:11 - 50.999 Because it's not structure where otherwise Batson

03:11 - 54.803 would not result in replacing or resetting the juror.

03:11 - 56.805 It would be the case dismissed

03:11 - 00.842 because there was a finding of racial bias from the selection.

03:12 - 05.146 So I point to the cases Sheppard versus Maxwell,

03:12 - 08.783 which is, yeah, that's that's a classic bias case.

03:12 - 13.054 A judge found that the prosecutor was racially motivated

03:12 - 17.759 in selecting jurors and the response and the remedy is to have that.

03:12 - 22.297 Viewers see if we follow your logic on this case, that these factors

03:12 - 27.903 structural are that structural are I you know on coding

03:12 - 32.574 so tell me I can't have it both ways can have Batson challenges

03:12 - 37.178 and say this issue with a structural arc which one is is the Allegheny County

03:12 - 40.916 Public Defender's office say should be paramount for the sports

03:12 - 44.753 ref to strike down Batson

03:12 - 47.622 You know, I'm not sure how that's

03:12 - 51.760 how you know, how those that would that's trying to bias the

03:12 - 54.596 yeah you just

03:12 - 57.999 well I don't see it any more obvious a structural error.

03:12 - 02.571 you're lucky that a prosecutor is discriminating.

03:13 - 04.406 So based upon the race.

03:13 - 08.443 So the case there are when there is a jury selected

03:13 - 13.882 upon racial discrimination that's been found to be structural error,

03:13 - 19.054 if you just received the door,

03:13 - 25.293 the also structural error when the when the

03:13 - 31.032 when the situation gives rise to the risk of bias.

03:13 - 35.337 So the exposure to pretrial publicity, we don't know

03:13 - 39.240 We're not inside the minds of of of

03:13 - 42.344 you know of the jurors and that Sheppard versus Maxwell case but

03:13 - 46.214 it was your virtual reversible error because there was a risk of bias

03:13 - 48.783 in Williams versus versus Pennsylvania.

03:13 - 51.553 The chief justice failed to recuse himself.

03:13 - 53.488 He had earlier been the prosecutor,

03:13 - 57.192 but he didn't cast the deciding vote in the appellate court.

03:13 - 00.161 But because there is the risk of bias, there are structural error

03:14 - 02.631 so equitable that this is a joke.

03:14 - 06.468 Who signed the death warrant and then sat on the case as a juror?

03:14 - 09.537 Rationales for structural error, you know, and as a judge?

03:14 - 10.672 Yeah.

03:14 - 13.074 When it was the justice when when the right

03:14 - 17.979 when the right at issue is is the fundamental

03:14 - 20.181 and when the effect of

03:14 - 25.286 the error is too hard to measure, these are

03:14 - 27.589 what what occurred here.

03:14 - 29.591 Yeah. Okay.

03:14 - 31.993 Okay. Are there other questions?

03:14 - 32.761 All right.

03:14 - 33.094 Thank you.

03:14 - 33.962 Stand your argument.

03:14 - 44.005 Let's hear from.

03:14 - 45.273 Good afternoon.

03:14 - 46.241 May it please the court?

03:14 - 49.778 I am Daniel for Nacchio from the Allegheny County District Attorney's Office

03:14 - 54.649 on behalf of the Commonwealth, as I believe.

03:14 - 56.818 The bottom line is the law is clear

03:14 - 00.889 that the testimony of a victim standing alone is enough to convict the defendant,

03:15 - 02.057 so long as

03:15 - 06.361 it convinces the jurors of the defendant's guilt beyond a reasonable doubt.

03:15 - 09.030 The Commonwealth asks this jury it stop.

03:15 - 10.398 That's for dear question.

03:15 - 14.102 During jury selection,

03:15 - 16.137 in order to uncover

03:15 - 20.408 any jurors who may hold fixed beliefs that conflict with the law, namely

03:15 - 25.080 that they would any jurors who would insist on corroborating evidence

03:15 - 29.684 or who could never convict on a pure, he said she said case.

03:15 - 35.190 Counsel, can you draw the line for me on what

03:15 - 39.861 what jury charge questions,

03:15 - 42.230 legal charge from a judge

03:15 - 46.501 are appropriate and in balance when picking the jury?

03:15 - 47.469 Sure.

03:15 - 52.273 I disagree with appellant here that there is bright

03:15 - 56.811 line rule saying that questions in the nature of a voir dire

03:15 - 59.114 were to your questions in the nature of a jury instruction.

03:15 - 04.385 I will probably mix up those two repeatedly in this argument.

03:16 - 07.322 The suppose of bright line rule that you can't do that.

03:16 - 10.325 I don't agree that that exists under this Court's

03:16 - 14.062 and the Superior Court standard of review for abuse of discretion.

03:16 - 19.434 If you if you read the cases in detail, these these are all cases

03:16 - 23.638 in which a particular question is thought to be asked.

03:16 - 26.641 And the trial judge says, well, I'm going to charge them that later.

03:16 - 28.143 So no, I'm not going to let you do that.

03:16 - 31.880 And then the appellate court says, yeah, that was within the trial discretion

03:16 - 32.680 to say that.

03:16 - 35.083 I don't agree that that creates a bright line rule.

03:16 - 37.786 But I guess my question is, should there be a bright line rule?

03:16 - 42.223 I know why Why should

03:16 - 45.493 why should the lawyers

03:16 - 48.997 or in the context of picking a jury,

03:16 - 52.066 be able to explore a

03:16 - 55.603 specific legal principle by legal principle, whether a jury

03:16 - 00.809 will follow the law as charged versus just asking the general question?

03:17 - 02.243 I'm the judge.

03:17 - 05.613 I will instruct you on the law.

03:17 - 07.515 I expect you to follow it.

03:17 - 09.150 The law presumes you will follow it.

03:17 - 11.553 Does anybody have a problem with that?

03:17 - 14.088 Why isn't that adequate?

03:17 - 16.057 I think

03:17 - 19.394 that if a trial court were to insist that

03:17 - 22.730 its voir dire be constructed in that way, it would not be an abuse of discretion?

03:17 - 24.432 I think it's fair for the Commonwealth.

03:17 - 25.834 I'll get to your request.

03:17 - 28.269 So it depends on which judge you pool.

03:17 - 30.405 I think that's the nature of an abuse of discretion.

03:17 - 31.239 Standard of review

03:17 - 35.276 is in light of the facts of this case, of the particular case in front of it,

03:17 - 39.113 the judge will be asked by the parties, Can we ask this particular question?

03:17 - 40.915 You're getting an advance.

03:17 - 43.852 So if one question is good, then all of them should be good.

03:17 - 48.122 If one question I mean, what we're going to do is if that's per se.

03:17 - 52.160 Okay, meaning we don't reverse it,

03:17 - 54.696 then if if you

03:17 - 58.733 as the prosecutor want to ask about one principle,

03:17 - 01.102 I ask the defense counsel, I'm going to say, well,

03:18 - 04.072 if we're open in that box, I want you to I want you to pre charge all the jurors.

03:18 - 05.440 Now, that whole jury pool now is

03:18 - 06.007 I want to find out

03:18 - 06.307 if there's

03:18 - 10.245 any legal principle specifically that they're not going to be able to follow.

03:18 - 12.614 I think that if a defense attorney

03:18 - 16.317 wants to ask a broader question like that, I think they are

03:18 - 19.454 within their rights to ask the trial court for permission to do so.

03:18 - 23.057 And again, it comes back to the court's discretion of, well,

03:18 - 26.394 what what legal principles are we concerned about in this case?

03:18 - 30.431 But aren't we I don't have a problem as a per se, a problem

03:18 - 34.535 with a defense attorney asking a corresponding

03:18 - 37.538 but opposite voir dire question, whatever that may be.

03:18 - 41.676 So long as that word to your question is an accurate statement of the law

03:18 - 44.412 and is something that is relevant to the case

03:18 - 47.782 and may presume all the legal charges are relevant to it.

03:18 - 49.117 It's fair enough.

03:18 - 52.520 But this this is interesting because

03:18 - 53.955 I take your point

03:18 - 57.992 that there's a large quantum of discretion here with the trial judge

03:18 - 02.530 based upon the type of case that she or he is dealing with.

03:19 - 06.634 Hence the question about believing police officers, for example, might be in play

03:19 - 11.773 in one case or another in death case, could you impose it, that sort of thing.

03:19 - 18.012 But here, the discretion of allegedly

03:19 - 21.749 tell me if I'm wrong is exercised in a categorical way

03:19 - 24.852 with respect to all sex assault cases involving a child?

03:19 - 26.821 Is that is that a is that correct?

03:19 - 29.390 In Allegheny County right now?

03:19 - 30.591 I can't say for sure.

03:19 - 35.129 I did represent in my brief and it is my understanding that it is routinely asked.

03:19 - 37.832 I can't represent that it is asked in every case.

03:19 - 42.804 I don't know if it is asked, like what specific amounts of evidence

03:19 - 44.439 the Commonwealth has in its possession

03:19 - 48.209 before it chooses to or if it in fact does choose to ask this question.

03:19 - 48.810 We don't.

03:19 - 53.214 So we don't we don't necessarily know, but we have the representation

03:19 - 56.017 from the defense that it's a categorical thing.

03:19 - 01.422 So just working from that premise right now, how do we

03:20 - 01.756 how do

03:20 - 06.327 we as a court assess whether something I saw in the paper or something about why

03:20 - 12.400 a matter of widespread public concern me so

03:20 - 17.005 the obviously assault on sexual assault on children,

03:20 - 20.842 matter of widespread public concern, how do we decide

03:20 - 25.613 that's a matter widespread public concern, this isn't over here?

03:20 - 28.850 Or is that an unsatisfactory

03:20 - 33.588 litmus test for reviewing trial judges

03:20 - 40.161 decisions on whether or not to allow question

03:20 - 42.096 I can't give you a standard as to

03:20 - 45.266 what is and is not a significant public concern.

03:20 - 48.469 Of course, both death penalty

03:20 - 52.740 cases and cases such as this one are I don't think there's any dispute

03:20 - 58.479 that they are, you know, some significant public concern.

03:20 - 02.717 But perhaps that's perhaps that's a

03:21 - 09.557 perhaps that that's a misplaced, misplaced,

03:21 - 11.626 you know, hermeneutical device.

03:21 - 14.629 Maybe we should dispense with this widespread public concerns.

03:21 - 18.966 We're not taking opinion polls on which cases are more important than others,

03:21 - 23.438 but we need to assess whether the trial judge abused his

03:21 - 28.042 or her discretion in well, did did they mistake the law?

03:21 - 29.377 That's not really.

03:21 - 32.713 And that's just a marginal claim here, I take it.

03:21 - 37.652 But did they abuse their discretion by structuring the jury

03:21 - 41.522 in an improper way through the question at the voir dire stage?

03:21 - 42.723 Isn't that it?

03:21 - 45.626 Well, I don't.

03:21 - 48.096 I don't want can I get an answer first?

03:21 - 49.497 And answer.

03:21 - 53.501 To be clear, the Commonwealth's position here is not that it's

03:21 - 57.872 a matter of widespread public concern and therefore we can ask this question.

03:21 - 01.242 It is a matter of concern to the prosecutors in the Allegheny County

03:22 - 05.079 DA's office that there is a misconception among the public

03:22 - 12.019 that corroborating evidence is required or that there are people.

03:22 - 13.921 I don't know what percentage I do not.

03:22 - 17.291 I will fully admit I don't have these studies might exist, but

03:22 - 21.062 I don't have studies to say how widespread these misconceptions in society are.

03:22 - 24.832 But I don't have them for me, you know, in my brief or with me here.

03:22 - 29.570 But that is the that is based on our experience as prosecutors.

03:22 - 33.207 That is our good faith belief that there is some percentage

03:22 - 34.942 of the population that won't convict

03:22 - 38.379 without corroborating evidence or in a pure he said she said case.

03:22 - 41.215 And so that's why we seek to ask that question,

03:22 - 45.186 just to make sure that potential jurors know what the law is.

03:22 - 49.157 Well, and that must be in part why the General Assembly enacted

03:22 - 52.126 Section 30 106b,

03:22 - 54.662 which likens sexual

03:22 - 59.800 assault cases to any other credibility case by saying

03:22 - 05.339 that one victim's testimony, if believed, is sufficient, I would imagine so, yes.

03:23 - 09.310 So can I follow up on this widespread public concern issue?

03:23 - 13.447 Because that's not what my understanding of the death penalty case

03:23 - 15.583 law is based upon.

03:23 - 21.355 And let let me just start with my understanding and sure, correct me if I'm wrong,

03:23 - 22.056 there is a

03:23 - 25.259 general rule that it is sufficient to determine

03:23 - 28.930 with a general question to the jury, can you follow the law?

03:23 - 31.933 I'm going to instruct you under law and I can't.

03:23 - 33.401 Well, you follow the law.

03:23 - 36.337 General rule, death penalty cases.

03:23 - 40.741 There was an exception made that the specific question

03:23 - 45.780 could be asked, Can you impose a sentence of death?

03:23 - 49.750 And the reason that that question is allowed is because

03:23 - 53.054 there was a determination

03:23 - 57.291 that there was a widespread public perception

03:23 - 01.729 that jurors could not impose a sentence of death.

03:24 - 06.234 And so the was made for asking the question,

03:24 - 09.136 can you impose the death sentence?

03:24 - 11.606 So this isn't just a question.

03:24 - 15.042 Are sex crimes against children

03:24 - 18.879 heinous or against anyone heinous trafficking?

03:24 - 22.450 So the public concern is that a juror

03:24 - 27.555 cannot follow the law based upon a showing

03:24 - 32.627 that there is a wide spread public concern that they can follow the law.

03:24 - 33.995 Here we don't have that.

03:24 - 38.566 We don't have a showing of a widespread public concern

03:24 - 43.871 that jurors will not believe uncorroborated evidence

03:24 - 45.573 that is out there

03:24 - 48.175 that is fair, that in this appeal, I don't have

03:24 - 50.544 there may be such, you know, studies that have surveyed

03:24 - 53.147 the public and taken their opinions on this.

03:24 - 58.486 The only thing I could push back on is

03:24 - 04.492 I think everyone has heard the term the CSI effect, and that is sort of the

03:25 - 09.163 although I don't that's obviously not, you know, the greatest evidence.

03:25 - 13.100 But I think when I say those words, everybody in this room knows what I mean,

03:25 - 17.505 that because of whether it's because of mass media or whatever perception

03:25 - 20.174 that it has its own name in common usage

03:25 - 24.845 and that has more evidence, that's true in every case.

03:25 - 30.584 That's not only true in sexual assaults on children, which is why the General

03:25 - 36.791 Assembly said that they did they weren't to be treated with special care.

03:25 - 40.561 They had the same quantum of proof necessary

03:25 - 44.031 as in any other case in this Commonwealth.

03:25 - 44.532 That's correct.

03:25 - 49.704 And the CSI effect would be in effect in every single case in this Commonwealth,

03:25 - 57.278 not only cases involving sexual abuse of of children.

03:25 - 57.778 I mean, I

03:25 - 01.515 guess that's fair enough that jurors may always want more evidence.

03:26 - 04.719 But in the nature of these sex assault cases, there often isn't.

03:26 - 08.689 And it's again, the Commonwealth asks this question just to make sure that we're

03:26 - 11.926 all clear on what the law is and to just prescreen, correct.

03:26 - 15.563 If you're correct, this question can be asked of

03:26 - 19.333 every juror in every criminal case in this Commonwealth,

03:26 - 23.471 because it is precisely the same principle of law

03:26 - 28.376 that applies, you can convict based upon uncorroborated,

03:26 - 33.981 uncorroborated evidence, if believed it's true in any criminal case, so long as it

03:26 - 36.884 the evidence establishes all of the elements and all and things like that.

03:26 - 39.153 But that brings you to her point, because it does jury,

03:26 - 42.289 which is that's not what the jurors say at the outset.

03:26 - 43.090 Let me follow up.

03:26 - 46.060 That's exactly what I was going saw in every single case.

03:26 - 48.863 This is why we use the trial judges, unless that means something.

03:26 - 52.133 31 years of trying juries, every single case

03:26 - 56.036 you go into, the prosecution, the defense, know what the evidence is? Yes.

03:26 - 58.873 You've got a one witness case with no corroborating evidence.

03:26 - 01.842 You are expected to propose or get proposed voir dire.

03:27 - 05.279 The judge looks at the proposed voir dire, and that's why I give it up

03:27 - 08.215 for the judge, for the abuse of discretion standard,

03:27 - 09.917 you know, going in, whether or not you've got

03:27 - 12.620 a one witness case with no corroborating evidence.

03:27 - 14.054 That's why the questions asked.

03:27 - 17.291 And Judge Donahue, just this time is 100% correct.

03:27 - 21.962 If I have a robbery case where I have one witness or an identification

03:27 - 25.332 note, no corroborating evidence that questions will be asked at

03:27 - 29.804 the voir dire stage of a robbery case or any other case for that matter.

03:27 - 31.572 We've only got one witness.

03:27 - 36.911 This is this is not just this voir dire question that is specific

03:27 - 40.848 to sex abuse cases, although in a sex abuse case, it's almost always is.

03:27 - 42.583 It's applicable to any other claim

03:27 - 45.085 where you've got one witness with no corroborating evidence.

03:27 - 46.487 Is that correct?

03:27 - 49.190 I think that you could voir dire the jury on that.

03:27 - 51.258 Yes, I will have to say that

03:27 - 55.029 I believe Section 31 or six of the crimes code does specifically reference

03:27 - 59.133 sex assault victims, sex assault cases, but it doesn't limited this district.

03:27 - 03.204 What's your question to the board here is left to the discretion

03:28 - 03.904 of the trial judge.

03:28 - 06.440 If the trial judge in any given case

03:28 - 09.643 believes that this particular question is appropriate,

03:28 - 13.614 given what the judge knows about the case under the circumstances,

03:28 - 18.519 that is the kind of judgment call that the the case law permits a judge to make.

03:28 - 21.589 And it is also, I think, commonly accepted that

03:28 - 26.260 in a sexual assault case, particularly sexual assault of a child,

03:28 - 32.733 there is likely to be other corroborating evidence other than the

03:28 - 36.570 testimony of the child and the testimony if he chooses to give it.

03:28 - 38.706 No, there's often physical evidence.

03:28 - 42.009 There's often not there's often no physical evidence at all

03:28 - 46.213 when in a sexual assault of the child and you're left simply with the

03:28 - 47.314 he said she said.

03:28 - 52.186 So it's it it makes abundant sense to me that the legislature

03:28 - 55.422 would have adopted Section 30 106b

03:28 - 00.594 to to clarify that sex assault cases are to be treated

03:29 - 04.565 the same as other cases where the testimony of a witness

03:29 - 08.602 is sufficient, if believed beyond a reasonable doubt.

03:29 - 09.603 Yeah. Yes, sir.

03:29 - 14.441 Counsel, are you of the view that you can actually ask your

03:29 - 20.180 a question specific to the evidence that you're going to be presenting?

03:29 - 22.016 No, You know, Your Honor, the

03:29 - 26.921 the advantage or question cannot probe as to a jurors reaction to specific.

03:29 - 30.057 Isn't that precisely what this is that we're going to see?

03:29 - 35.329 Yeah, he said he said, Kate, aren't you by the seashore?

03:29 - 38.832 By the seashore, Yes.

03:29 - 40.701 Isn't that exactly what you're doing?

03:29 - 41.135 Well.

03:29 - 44.438 Well, you can get even though I don't have any corroborating evidence.

03:29 - 47.908 No, the the question the call of the question is,

03:29 - 49.910 can you follow this principle of law?

03:29 - 52.246 That's what and I think that's a material distinction.

03:29 - 55.916 But why not just ask that question back to it? Yes.

03:29 - 58.819 Robson said many, many, many minutes ago.

03:29 - 03.157 If you start with that proposition, you ask that, you ask the juror,

03:30 - 06.360 the panel, that question, I'm going to instruct you on the law.

03:30 - 10.698 Will you be able to follow my instruction if anybody hems in lies

03:30 - 12.166 that you're going to be going

03:30 - 14.501 and then you're not going to get to individuals individual right here.

03:30 - 16.303 It doesn't have to be specific.

03:30 - 19.573 You will follow the law of that.

03:30 - 24.712 Even though I have uncorroborated evidence, you can still come back.

03:30 - 25.245 True.

03:30 - 27.147 How does that get you, Father?

03:30 - 30.150 I well, first thing I would say is,

03:30 - 34.822 again, this is just because there is the discretion to permit this question.

03:30 - 37.324 There is also the discretion not to permit this question.

03:30 - 39.893 But beyond that,

03:30 - 43.797 my main initial reaction to your question is

03:30 - 47.501 a juror may in good faith believe, yeah, I can you know, I'll follow the law

03:30 - 48.369 when instructed

03:30 - 51.939 but doesn't know the specifics of what all that answer actually entails

03:30 - 56.710 until they get into the jury box and are instructed and realize that here we are.

03:30 - 59.680 All I've heard is the uncorroborated testimony of the victim.

03:30 - 02.383 And now I'm being instructed that that that could apply

03:31 - 05.052 to multiple jury instructions. I mean, you can apply that to every.

03:31 - 06.987 Well, that's not a stupid legal principle.

03:31 - 09.223 I'm not going to apply that reasonable doubt.

03:31 - 11.659 Yeah, this is reasonable. How stuff really is really bad.

03:31 - 16.530 So your principle earlier that I thought you said was the reason

03:31 - 20.701 why the DA's asked for this question is because of a concern

03:31 - 24.304 that a potential juror might insist on corroborating evidence.

03:31 - 25.706 Is that yes. Okay.

03:31 - 29.209 So let's apply that principle that that

03:31 - 32.980 that firmament for you and your office.

03:31 - 36.250 Let's say in this case, the defense counsel, one of the one of the

03:31 - 39.019 one or two ask the jurors,

03:31 - 39.687 particularly in

03:31 - 44.224 light of your question, whether the jurors might be more inclined

03:31 - 49.329 to believe a child victim of sexual assault

03:31 - 53.867 under the belief that children typically wouldn't lie about something like that?

03:31 - 58.205 Based on your concern, your office, would you object to that instruction?

03:31 - 59.273 I see.

03:31 - 01.809 I think I would, because I think that's a different kind of instruction.

03:32 - 03.477 I think you asking that question

03:32 - 07.614 that you just posed is asking jurors for their opinions of the evidence.

03:32 - 12.086 This question in this case is asking if they can follow the law based on

03:32 - 16.890 based on the evidence that will eventually be presented at trial.

03:32 - 19.426 Sure. But I think giving them an advance look at the evidence.

03:32 - 20.661 No, I don't agree.

03:32 - 23.664 I, I think

03:32 - 25.365 the case law I'm not sure here.

03:32 - 27.334 I would like to agree with you.

03:32 - 30.137 I would like to agree with you that it's different.

03:32 - 31.739 Tell me why it's different, though.

03:32 - 33.974 You're it's just to me. It to me. I hear it.

03:32 - 35.109 I hear wording.

03:32 - 37.277 The questions are worded differently.

03:32 - 40.180 But but it's still a question about

03:32 - 42.349 how do you feel about

03:32 - 47.521 uncorroborated ad child testimony in a child sex abuse case.

03:32 - 48.522 I will agree with you.

03:32 - 50.290 It's a subtle distinction.

03:32 - 51.825 I think it's a material distinction, though.

03:32 - 55.229 And what I would point to you Justice Roberson, is this court's decision

03:32 - 58.832 in Beaumont, which both appellant and I cite in our briefs

03:32 - 02.302 and I discuss at length, I have it up here.

03:33 - 07.040 I think it speaks exactly to your concern, because the in Beaumont,

03:33 - 11.478 the judge talked about

03:33 - 14.081 sorry, the defense counsel basically wanted to ask questions.

03:33 - 19.686 Would the jurors, with the potential jurors, consider

03:33 - 22.956 certain types of evidence like the defendant's character,

03:33 - 25.325 the defendant's record, such and such,

03:33 - 28.996 the this court considered those to be improper, but notably,

03:33 - 33.433 the trial court didn't permit the defense attorney to ask those questions,

03:33 - 36.837 but restated them into there will be mitigated.

03:33 - 39.473 There will be mitigating circumstances that are presented.

03:33 - 42.442 If I instruct you that the law requires that you consider that,

03:33 - 43.811 would you follow that law?

03:33 - 47.247 And this court put its stamp of approval on that restatement of that question.

03:33 - 49.116 And so it is a subtle distinction.

03:33 - 50.017 We're both still talking

03:33 - 55.255 about what mitigating evidence might be presented at trial, but

03:33 - 00.260 when one asks the potential juror if,

03:34 - 02.663 you know, would you consider this or, you know, what's your opinion,

03:34 - 04.431 what would your opinion be of this evidence?

03:34 - 05.766 What would you think about this evidence?

03:34 - 09.403 While the other is, I'm going to instruct you, you must consider this.

03:34 - 10.938 Would you follow that?

03:34 - 11.638 Not you.

03:34 - 16.476 I suspect we could discuss this case all day because we all have a lot of.

03:34 - 18.412 Let's

03:34 - 21.582 see, I we may have already taken up a lot of the day,

03:34 - 25.118 but if you would give your closing remarks.

03:34 - 26.353 Sure. Of course.

03:34 - 29.356 I think we've probably covered it up.

03:34 - 30.290 Yes, Your Honor.

03:34 - 33.894 Of course,

03:34 - 35.863 the Commonwealth's bottom line argument

03:34 - 40.100 is that this is an accurate statement of the law, at least what is included.

03:34 - 43.337 I understand there's concerns about what is permitted, although I must

03:34 - 47.708 briefly say to Justice Rex points, I'm just remembering this now.

03:34 - 50.344 The omissions

03:34 - 52.746 as they were from the voir dire

03:34 - 56.083 question, are also omitted from the jury instruction.

03:34 - 57.818 They are included in other jury instruction.

03:34 - 00.954 But the I believe the the word to your question

03:35 - 05.092 here is designed to scrupulously adhere to

03:35 - 05.893 jury instruction.

03:35 - 11.865 4.13 B So with to continue with my closing,

03:35 - 13.967 it is an accurate statement of the law.

03:35 - 18.205 Furthermore, at trial, the trial court accurately instructed

03:35 - 21.575 the jury jurors are presumed to follow the court's instruction.

03:35 - 25.545 And so any insinuation of prejudice

03:35 - 28.682 or anything like that is unfounded.

03:35 - 31.184 And I would ask this court to affirm. Okay. Thank you.

03:35 - 33.353 Thanks. Did an excellent job.

03:35 - 36.123 Thank you. Thank you very much.

03:35 - 38.358 The next case is Commonwealth V Smith.

03:35 - 39.826 These are two separate cases

03:35 - 42.796 against the defendant that were consolidated for trial.

03:35 - 44.197 In both of the cases.

03:35 - 45.399 Defendant The Defendant Smith

03:35 - 49.336 was convicted of sexual offenses against two girls ages six and eight,

03:35 - 53.573 where the only evidence consisted of the girl's testimony.

03:35 - 58.612 At trial, the defendant requested that the court ask a specific question

03:35 - 03.483 to the jury regarding their ability to be fair and impartial in this case.

03:36 - 06.219 The trial judge declined to ask the question,

03:36 - 11.024 which was whether the jury would be likely to believe the testimony of a child

03:36 - 14.861 alleging sexual abuse because the jurors would have difficulties

03:36 - 19.533 believing a child would lie about such a thing.

03:36 - 22.602 Instead of presenting this question to the jury.

03:36 - 26.907 The court gave the standard instruction about credibility determinations

03:36 - 31.611 and asked a general question about the jurors being fair and impartial.

03:36 - 34.781 The defendant argued that the comment that the court's failure

03:36 - 39.353 to ask his specific question related to the believability of children

03:36 - 44.124 violated his constitutional right to a fair and impartial trial.

03:36 - 47.761 The section the second issue in this case regards this regards

03:36 - 52.099 the sufficiency of evidence for the charge of unlawful contact

03:36 - 57.204 with a minor, unlawful contact of him with a minor

03:36 - 58.705 exist

03:36 - 02.242 if the person is intentionally in contact with the minor

03:37 - 06.880 for the purpose of engaging in an activity prohibited under under

03:37 - 13.220 any of the sexual offenses listed in that specific paragraph of which rape

03:37 - 17.024 and the other sexual offenses would fall under that violation.

03:37 - 20.327 Now, the defendant was convicted of this violation based on evidence

03:37 - 24.398 that during the subsequent attacks on the minors,

03:37 - 28.769 he gave them instructions as to what he wanted them to do.

03:37 - 32.472 The defendant argues in this case that that type of communication

03:37 - 37.477 was not what the legislature legislature intended to prevent.

03:37 - 40.580 He argues that the legislature intended to prevent

03:37 - 44.818 the type of communication that occurs prior to the assaults,

03:37 - 49.856 whether it be communication via email or any sort of electronic or Internet

03:37 - 53.560 communication, such as reaching out to children

03:37 - 56.830 or in some situations, detectives posing as children.

03:37 - 00.033 So in this case, he argued that the statute of unlawful contact

03:38 - 03.236 with a minor should only apply to scenarios

03:38 - 06.506 where he was reaching out in advance through electronic means

03:38 - 11.445 and such to contact these minors and not the conduct that occurred

03:38 - 15.549 while he was with the children while the crime was taking place.

03:38 - 17.150 So let's go to the case.

03:38 - 17.551 Thank you.

03:38 - 19.352 Your Honor, May please the court.

03:38 - 20.787 My name is Robyn Forrest.

03:38 - 23.690 I represent the appellant, James Smith.

03:38 - 24.458 Your Honor,

03:38 - 28.361 obviously this case is related to the Howard Walker case

03:38 - 32.299 that you just heard, but I think your case is a lot weaker.

03:38 - 36.536 Yeah, because when I first read,

03:38 - 38.205 when I first read this proposed

03:38 - 41.374 question, I had no idea where it was coming from.

03:38 - 43.844 I mean, it's it's almost counterintuitive.

03:38 - 46.546 And certainly the opposite could be just as true.

03:38 - 50.784 Well, what was it that you presented to the trial judge

03:38 - 53.587 which would support the necessity

03:38 - 57.057 for giving such and such a

03:38 - 58.291 such a voir dire question?

03:38 - 03.930 Your Honor, nothing was presented to the trial judge in support of this question.

03:39 - 09.736 But I, I would argue that the trial judge had reason to believe

03:39 - 15.342 that this kind of predisposition exists, or I would think it would be

03:39 - 18.478 just as likely that they would believe a child

03:39 - 21.481 could lie to children being prone

03:39 - 24.584 to misapprehensions or confusion or

03:39 - 28.355 or fear or understood all manner of things.

03:39 - 30.957 The question to me strikes, I don't know.

03:39 - 33.260 Having been a trial judge, if I had seen this question,

03:39 - 37.397 I frankly don't think I would have spent a whole lot of time even considering it.

03:39 - 38.899 Well, it seems outlandish.

03:39 - 40.167 Can you tell me why I'm wrong?

03:39 - 43.370 Yes. First of all, Your Honor, there are studies.

03:39 - 45.105 They were not presented to the trial judge,

03:39 - 48.775 But I would refer, Your Honor to pages 18 to 20 of my brief,

03:39 - 53.213 where I discuss some of these studies that have shown what I think already.

03:39 - 55.982 Trial judges would have reason to believe.

03:39 - 00.687 And that is that jurors that sit in child sex assault

03:40 - 04.724 cases are more likely to believe young complainants than older complainants.

03:40 - 08.595 One of those studies, for example, compared the testimony of a six year

03:40 - 10.964 old child versus a 15 year old child.

03:40 - 15.936 And what the studies show is that the six year old had higher, quote

03:40 - 20.507 unquote credibility ratings, that that translated into more guilty verdicts.

03:40 - 25.612 And jurors explained that the reason that they convicted in this case is

03:40 - 30.917 because they thought that the young child was too sexually naive,

03:40 - 35.789 unsophisticated, lacking of knowledge and life experience,

03:40 - 40.827 and believed the way the study put it was they lacked the cognitive capacity

03:40 - 43.997 to even fabricate a charge of a sexual nature.

03:40 - 47.634 And that's why Justice Wecht, when you asked about

03:40 - 51.104 everybody knows that children, you know, might lie,

03:40 - 54.107 could lie, maybe if you have a child or even more inclined to think that.

03:40 - 57.444 I'm not advocating that this kind of question be asked

03:40 - 01.281 in every case where there is a child witness, although

03:41 - 04.284 I don't think that would necessarily be a wrong conclusion by this court,

03:41 - 08.888 that the key here is that when we're talking about sexual assault charges,

03:41 - 13.226 allegations of this particular nature, there is reason

03:41 - 17.597 not just reason to think, but reason to think that