00:00 - Welcome to our first day of our spring session

00:03 - oral argument here in the beautiful city of Philadelphia.

00:07 - I have some sad news.

00:09 - I'm very sorry to announce that we lost

00:11 - one of our great public servants last night.

00:15 - Judge Phyllis Beck passed away at the age of 97.

00:20 - Judge Beck was a proud Philadelphian,

00:24 - and she was the first woman to serve on our Pennsylvania Superior Court.

00:30 - She had graduated first in her class from Temple Law School.

00:35 - Judge Beck served on the Superior

00:38 - Court from 1981 to 2006,

00:42 - and her daughter, Alice Beck DuBose, now serves on that very same court.

00:47 - And to my knowledge, they're the only mother daughter duo on on

00:52 - an appellate court.

00:53 - We extend our sincere sympathy

00:57 - to Judge Alice, Debo Beck,

01:00 - Alex Beck, Tebow and to her family.

01:08 - As you may know, the

01:09 - Pennsylvania Supreme Court is the oldest appellate court in North America.

01:14 - Our roots date back to William Penn's provincial court of 1684,

01:19 - and we were formally established pursuant to the Pennsylvania

01:23 - Judiciary Act of 1722.

01:26 - In 2022, we celebrated the court's historic 300th anniversary

01:31 - here in Philadelphia, and we are privileged to sit in three

01:36 - historic courtrooms in Harrisburg,

01:39 - Pittsburgh and Philadelphia.

01:42 - In its earliest years, the court actually convened

01:47 - in private residences while the lower courts met in ale houses.

01:53 - Not sure what you can take away from that, but in.

01:56 - In 1707, the city of Philadelphia constructed the townhouse,

02:02 - a two story house and market that functioned as an early city hall.

02:08 - This court conducted its business at the townhouse until 1743,

02:12 - when it moved into its own courtroom at the house, now Independence Hall.

02:18 - Beginning construction in 1871,

02:21 - it took 30 years to construct this city hall.

02:26 - It was designed in the French Second Empire style

02:29 - by John MacArthur, Jr and Thomas Bostick Walter, sitting atop the building as you

02:35 - know, is a bronze statue of William Penn, standing 37ft

02:39 - tall and weighing 27 tons.

02:43 - Mr. Penn's statue faces north east and points to a spot

02:47 - where he signed a treaty of friendship with the local Native Americans in 1682.

02:53 - City Hall has 700 rooms,

02:56 - which house functioning offices for all three branches of government.

03:01 - This court became the first tenant in this building

03:04 - in January of 1877.

03:07 - After the official opening, reporters deemed this to be the most handsome

03:13 - courtroom in the country and concluded that some of the more

03:17 - fastidious lawyers will hereafter take only Supreme Court cases

03:22 - in order that they may practice in this court.

03:25 - Palace.

03:27 - Before we hear the first case,

03:29 - there are a few things I'd like to mention to counsel.

03:34 - Appellant's counsel, please approach the podium when your case is called.

03:38 - I will then give a short summary of the case,

03:41 - and you may then begin by stating your name and the party you represent.

03:45 - And please introduce your co-counsel to the court.

03:48 - The justices are familiar with your cases, so I ask that

03:52 - you avoid any unnecessary recitation of the facts or procedural history,

03:56 - and instead focus on the main issues on which we granted review.

04:01 - Counsel is welcome to rely on their briefs for any particular issues.

04:05 - Please remember that we do not allow rebuttal in cases

04:09 - in which there are multiple parties represented by separate counsel.

04:14 - Council should avoid repeating the same arguments as prior counsel.

04:18 - Please try not to interrupt the justices when we are asking you a question.

04:23 - A justice's question is not meant to trip you up.

04:26 - Rather, it indicates there are particular issues that we want to explore further.

04:31 - While there's no set time limit for oral argument, I will advise counsel

04:36 - when the court is satisfied that all of its questions have been answered.

04:40 - And at that time.

04:41 - I ask that you conclude your argument.

04:44 - Before we call the first case.

04:46 - I'd like to just mention we love when we have students here to visit.

04:50 - And today we have a young man named Christopher You,

04:53 - who is a senior at Upper Dublin High School, class of 2025,

04:59 - and he is interning for Senator Art Haywood.

05:03 - So welcome to our student, Christopher. You.

05:08 - Hello and welcome to the Supreme Court of Pennsylvania.

05:11 - I'm Virginia McMichael, and my job here today is to give you

05:15 - a brief summary of each of the arguments.

05:17 - You're going to hear.

05:18 - Starting with the first one is Frylock versus scepter.

05:22 - This appeal concerns the constitutionality of a Pennsylvania statute

05:26 - that imposes a limit or cap on the amount of money

05:30 - a plaintiff can recover in an action against the Commonwealth.

05:33 - Plaintiff Hayley Frye sued Septa for money damages

05:37 - to compensate for injuries she sustained when a Septa bus struck her at Broad

05:41 - and Vine Streets in Philadelphia, causing a partial amputation of her foot.

05:47 - Trial was scheduled to begin in November 2021.

05:50 - Shortly before trial, the parties agreed that

05:53 - the fair value of frolics claim was $7 million.

05:57 - Freilich and Septa agreed to the entry of a verdict in that amount.

06:02 - Septa then filed a

06:03 - post-trial motion to reduce the verdict to 250,000,

06:07 - based on a Pennsylvania statute, 42 P.S.

06:11 - section 8528 B

06:14 - that creates a liability cap on money damages.

06:18 - The trial court granted Scepters motion and entered judgment for $250,000.

06:24 - Freilich appealed to the Pennsylvania Commonwealth Court, which affirmed

06:28 - the trial court in this appeal to the Pennsylvania Supreme Court.

06:32 - Freilich argues that section 8528 cap on damages

06:37 - is unconstitutional, as applied to this case.

06:41 - Her counsel will argue that the statute violates the Pennsylvania Constitution

06:46 - because it deprives Freilich of her right to a jury trial,

06:49 - and also that her recovery of $250,000

06:53 - will be consumed by costs, fees, and insurance reimbursement.

06:58 - Claims.

06:59 - Septa argues that there was no right to a jury trial

07:02 - when the Pennsylvania Constitution was ratified, and that there is no such

07:06 - right today, so the damages cap does not violate the right to trial by jury.

07:12 - Septa further argues that the challenges

07:14 - to the statutory damages cap have been unsuccessful in the past,

07:18 - and there is no reason for the court to change the law.

07:22 - Finally, Septa argues that the Pennsylvania Constitution

07:26 - provides that the General Assembly, not the Supreme Court, must decide

07:30 - questions about the limitations on claims against the Commonwealth.

07:34 - The Attorney General of Pennsylvania intervened in the action

07:38 - on behalf of Septa.

07:40 - The Attorney General supports Septa.

07:42 - Arguments that the statutory cap on damages does not violate

07:46 - the Pennsylvania Constitution, and that exceptions to sovereign immunity

07:51 - are to be decided by the General Assembly, not the courts.

07:55 - Thank you,

07:56 - Madam Chief Justice, I my apologies for getting in the way.

08:00 - I'm Tom.

08:02 - I represent, Hayley Freilich, the plaintiff and the appellant in this case.

08:06 - I'm here with Andre Latimer, who is known to the court, and I'm here

08:11 - with, Chip Becker, who's allowed me to argue today.

08:15 - Did you arm wrestle for the purpose?

08:18 - More than an arm wrestle.

08:21 - And,

08:23 - I'm here, on the two principle questions.

08:26 - Before the court.

08:28 - I know that the court is very familiar with these.

08:31 - With these, questions and these issues.

08:34 - This dates back to, both,

08:37 - a decision which was made in, by this court in Southlake.

08:42 - We are not here to re argue this off a case at all.

08:45 - And also following that to concurrence

08:49 - is, the, one, joined,

08:52 - in Southlake by, chief, the chief

08:56 - and, the, concurrence in Grove City, which was joined, of course,

09:02 - by Justice Daugherty and Donahue.

09:05 - And Monday.

09:07 - So, those, gave us a reason to be here

09:12 - and to narrowly craft a, case involving Hailey Freilich

09:17 - where she has been constitutionally deprived both to a right

09:21 - to trial by jury as well as a remedy under the remedies clause.

09:26 - Having, review those cases,

09:29 - Yana Coast in particular, I believe that, that, she has been deprived

09:33 - of both a right to trial by jury and, and a remedy.

09:38 - We have, a case here where Hailey

09:41 - Freilich following the prescription

09:44 - that was, defined in those occurrences as to,

09:49 - putting before the court a developed record, which we have,

09:52 - we can demonstrate to the court that before her, Lynn's, she would get

09:58 - 1% of the stipulated verdict in judgment in this case, and she would get nothing.

10:04 - When the leads are paid, I

10:06 - won't recite the exact facts and figures unless the court would like me to do so.

10:11 - But they're well familiar to the court.

10:14 - And this case proves present the perfect storm.

10:17 - We are here today to ask the court

10:20 - to rule on the Hailey Freilich case.

10:24 - We are not here to establish policy.

10:26 - We're not here to rewrite, legislation.

10:30 - We're not here to declare,

10:31 - any facial challenge to the constitutionality of the cap.

10:36 - We got it, I was here, I have the scars on my back to show for it.

10:41 - And, that's been argued and, and passed.

10:44 - But what we do have in front of the court is a very defined challenge.

10:50 - And it's an as applied challenge.

10:53 - With, two with two issues in mind.

10:57 - The question on organized crime.

10:59 - I understand you've taken up Justice Baird,

11:02 - the late Justice Barry's invitation

11:05 - to develop that record and done it admirably.

11:08 - Thank you. What? When? When?

11:11 - Having developed that record,

11:14 - what about the legal analysis changes?

11:18 - How does the analysis that

11:23 - you ask the court to apply

11:25 - to these questions

11:28 - different?

11:29 - How does the constitutional analysis that the majority

11:33 - take the unanimous majority in soft like apply

11:36 - change the analysis changes?

11:41 - Very much like, like,

11:44 - Parker Matos when there was a change

11:47 - in, in circumstance, where we are not making a,

11:53 - facial challenge to the constitutionality of the cap,

11:57 - we understand that they try hard of of, of that statute,

12:02 - the fact that sovereign immunity is waived,

12:06 - sovereign immunity having been, having been,

12:10 - abrogated on a common law basis and then put into a statute,

12:14 - with exceptions and with a, and then with a,

12:19 - a remedy.

12:20 - The constitutional analysis here is the intention of the legislature

12:25 - in that remedy where the, and also in establishing a right to a trial by jury,

12:32 - where the, where the legislature affirmatively chose

12:37 - to not only protect the public purse, but also compensate victims

12:41 - and miss free, like here, we narrowly tell you,

12:46 - cannot under the constitu tution have any access to the court

12:51 - because she gets nothing or nearly nothing.

12:55 - And she also doesn't have a remedy because there's no remedy

13:00 - to be given to her under, by the way, any rubric of scrutiny that you apply, Mr.

13:06 - Klein. Oh, go ahead, go ahead.

13:08 - Just briefly follow up.

13:09 - Gee, I guess my question is,

13:13 - my hypothesis, there are innumerable,

13:16 - if not innumerable.

13:19 - There are many, sadly, many plaintiffs, who could mount a, a challenge

13:25 - similar to this real estate, indisputably beyond the,

13:29 - having damages and leans, etc., well beyond the cap.

13:35 - And and so

13:38 - where the court to

13:41 - to reverse here and strike down the cap as applied.

13:45 - I don't see in principle the difference between that

13:49 - and the facial challenge, the, the, the argument still has to turn on

13:53 - whether jury trials were available before 1790.

13:58 - In these cases, which I'm not sure where you're going with that.

14:01 - And, and on the remedies clause, if the,

14:06 - if the Constitution instructs that suits may be brought

14:10 - against the Commonwealth in such manner in such courts and in such cases

14:14 - as the legislature, may by law direct,

14:18 - it seems like the it's still a problem

14:23 - that they could they could therefore say you can't bring any cases at all.

14:27 - So if they could say this entire category of cases gets $0,

14:33 - how could we say that

14:35 - any given number arbitrarily is inadequate?

14:39 - I, I in other words, what I'm trying to say is I still don't

14:42 - see the difference between

14:46 - I realize you've done with Justice Breyer in his concurrence.

14:48 - Hers was a development of a record

14:50 - at the end of that rainbow, though I don't see the difference.

14:54 - Let me stop and see if you have anything to say to that.

14:58 - That was a lot that that was not a question.

15:02 - Yeah, well, that's why I, you know, there you go.

15:06 - Tell me where I'm wrong, where we're missing.

15:08 - It well, that was,

15:11 - respectfully, a lot.

15:16 - I don't I don't see it in I don't see it in those terms.

15:20 - First of all, to take you up on something, even by the

15:26 - the studies of this, most recently 2022, when the legislature

15:32 - went about studying this issue, what they found

15:35 - is that there's fewer cases that you think that meet this criteria.

15:38 - And what we've had here is a right that was granted,

15:42 - to the to the citizenry.

15:45 - And that was a an affirmative act by the General Assembly

15:50 - and that General Assembly Act said that they were going to provide compensation.

15:55 - They were going to that

15:55 - there was going to be a remedy provided that remedy is not being provided.

16:02 - The public purse is being, being protected.

16:04 - It was it was the two parts and it was studied,

16:07 - it was studied before the act in the in the wake of the Malay decision

16:13 - which abrogated, I have, immunity

16:16 - and then reestablished and then with a purpose.

16:21 - With a purpose.

16:22 - And that purpose has not been fulfilled here.

16:25 - That purpose, has essentially eroded over time.

16:29 - We might be having a different discussion if we were back in 1978,

16:34 - ironically, when I began to practice law.

16:37 - So I've this this has been the my entire legal career.

16:41 - And, and what we've seen

16:43 - is, is inflation, take it up in this case.

16:48 - In this case, we have $78,000, which were spent on the development

16:52 - of the damages in this case, with liability admitted in this case.

16:57 - And the medical bills are 560, 500,000.

17:02 - There was a disability policy, $500,000.

17:06 - That wouldn't have been the case

17:07 - when the $250,000 cap, which has never been changed.

17:12 - The governor was making $78,000 at that time.

17:15 - The, today the governor makes $234,000.

17:20 - The cap is $250,000.

17:23 - What could you expect to happen from that justice work?

17:26 - What you could expect to happen from that is a diminution of that,

17:31 - of that to a in some cases, zero.

17:35 - And in this case, if I could I follow up.

17:37 - Excuse me.

17:38 - My concern and just speaking

17:41 - from my own perspective, you make a persuasive argument.

17:45 - My concern is practically how would we go about this?

17:50 - And what could happen?

17:51 - Let's say we agree with you

17:52 - and we strike at for for one of the reasons that you put forth

17:58 - we cannot

17:59 - rewrite legislation that is not up to us.

18:02 - Let's say we gave the, legislature

18:05 - six months to rewrite it, which we've done in other cases.

18:09 - When does it become constitutional as applied,

18:14 - you know, is it 500,000 or is it a million?

18:18 - Each trial judge is going to have to determine with, you know,

18:22 - line items if in that particular case as applied, it's unconstitutional.

18:28 - Where do we go from here?

18:30 - If we agree with you,

18:32 - I don't think you need to go, given it that a lot of thought.

18:35 - By the way,

18:36 - I don't think you would need to go any further than to decide this case.

18:40 - If you decide this case, which, by the way, in

18:43 - the Grove, concurrence.

18:46 - And again, I know their justice bears words,

18:48 - but they were also adopted by by some of this court and some members of this court.

18:54 - And if you just look at, at at that,

18:58 - if you, in his words, strike the cap, I don't use the word strike.

19:02 - I don't think you need to strike the cap.

19:03 - I think you need to say that the cap as applied here is unconstitutional.

19:08 - We've agreed, to, a, to a verdict

19:13 - in this case, therefore reduced to should have been raised to a judgment.

19:17 - It was reduced to $250,000.

19:19 - And what needs to be done here is simply strike the cap.

19:23 - My view respectfully, humbly.

19:26 - And I could be dead wrong.

19:28 - But I believe that the legislature will go to work.

19:32 - The legislature and Justice Breyer was saying this needs a wake up call.

19:36 - My word, they were told.

19:37 - So in 2014, in polite terms, by three members of this court.

19:42 - They were told in 2019, politely by by this court,

19:48 - 11 years has passed since growth.

19:51 - Five years have passed.

19:53 - And where are we? Nowhere.

19:55 - They're still studying it.

19:56 - They're introducing bills.

19:58 - But that's not your concern here.

20:00 - Your concern here is Haley Freilich.

20:03 - Your concern here is one woman's case who gets nothing.

20:07 - Well, nothing, Mr. Clarke, I mean,

20:10 - we certainly are concerned about that, but we're also concerned

20:13 - about how the law develops because our opponents develop the law in Pennsylvania.

20:16 - Of course, to say our opinion here is just going to impact your client,

20:20 - I don't think is necessarily a false statement

20:22 - where, you know, we are going to issue a decision in this case, it's

20:25 - not it's going to go beyond your client.

20:28 - But if you could say,

20:32 - tell me, sort of finish this sentence,

20:35 - the cap

20:37 - is unconstitutional as applied when.

20:46 - When,

20:47 - the right to trial by jury is abrogated and the,

20:51 - and there is, no remedy for the plaintiff.

20:56 - Well, okay.

20:56 - So you're you're okay,

20:59 - but so might modify it and say no real remedy.

21:03 - But but but that but therein lies my answer.

21:06 - So so so can you can you monetize that for me.

21:09 - Because the cap is the cap is 250,000.

21:12 - So let's monetize it.

21:13 - When the damages are it's unconstitutional.

21:16 - When the damages are what

21:20 - right expected that question.

21:22 - And and I'm going to give you an unsatisfactory answer

21:27 - probably which is I don't think that it's an equation.

21:31 - And I don't think that it's, I don't think that it can be.

21:35 - You gave quantified.

21:36 - I think it can be, if I may, I think it can be quantified by the legislature.

21:41 - And I think that it can be.

21:43 - I think, by the way, that there can be schemes other than a cap

21:48 - which could be established by the legislature.

21:50 - For example, our neighboring state, new Jersey, has only serious injuries

21:55 - can be brought against the against the, against the sovereign entities.

21:59 - Well, that's different than a cap.

22:02 - And it's protective of the public purse.

22:05 - So the cap and the dollar amount of the cap is not

22:10 - just is not the answer,

22:12 - because there are different ways to go about it in a legislative scheme.

22:16 - But we're not here to to establish that a legislative scheme.

22:19 - What I'm trying to do admittedly, frankly, honestly

22:24 - is to kick the legislature into job.

22:27 - It's our job to rule on a question of law, not to try to supervise the law.

22:31 - I'm not asking or encourage, encourage or discourage legislation.

22:35 - That's all policy for Harrisburg.

22:38 - To follow up Justice Bronson's question, what's the rule

22:42 - that because we're not just deciding Miss Friel, it's tragic case.

22:46 - There's all these other tragic cases out there.

22:48 - What is the rule that that you want us to tell courts all over this Commonwealth

22:54 - to apply?

22:55 - And I still don't know what the rule would be.

22:58 - Is it that if there's a verdict, if there's a verdict

23:01 - or a stipulation over 250, then

23:07 - all bets are off?

23:08 - I don't know what the rule would be because

23:11 - you can say this isn't a as applied challenge.

23:14 - But if if we grant

23:17 - you the relief you seek,

23:20 - that it doesn't just extend to miss free like so

23:23 - I don't know what the rule would be if you grant the rule that we seek you.

23:27 - Overruled. On the free liquor case and the.

23:31 - And we know from that case, as we know in the development of all decision,

23:36 - all law, what the, what the what

23:40 - some of the boundaries are not necessarily all of the boundaries.

23:43 - And yes, you are correct.

23:45 - When I said I'd like to kick the legislature and wake them up,

23:50 - I think that that this case will have that salutary effect.

23:53 - But that's not what I'm asking you to do.

23:56 - I what I'm asking, what I'm asking you to do is to rule on this case.

24:02 - And we would have to agree.

24:05 - Justice Wecht, I think we have to agree that there is no remedy here

24:10 - by any basis, by the way, rational basis, which I know you

24:13 - I adopted in a recent case or or under a strict scrutiny.

24:19 - However you look at this, no remedy is no remedy, counsel.

24:23 - You're saying there's no remedy because of a mathematical calculation.

24:26 - The amount of work that council put in the investigations, the,

24:29 - the the it's a mathematical calculation

24:32 - as to why you reach the result that there's no remedy.

24:35 - But that mathematical calculation extends

24:38 - to cases beyond sovereign immunity cases.

24:41 - You know, you know, you know, Pennsylvania, your minimum

24:44 - auto liability coverage is about 1530.

24:48 - And you can have a judgment proof, player defend it in an auto case.

24:53 - It has tragic injuries in excess of millions of dollars.

24:57 - But that person who is injured is not going to recover.

25:00 - Does that mean that they it's an unconstitutional remedy

25:03 - because they don't recover a totally different situation that here

25:07 - here you have a statute which was enacted by the legislature,

25:11 - which by the way, the legislature recently changed to allow,

25:16 - for a remedy for sexual abuse

25:18 - victims by hand, but didn't increase but didn't increase the cap.

25:22 - Oh, they waved it.

25:23 - They waived it for certain certain causes of actions,

25:26 - but not this cause of action that your client is.

25:28 - Yeah. Yes.

25:29 - By the way, proving severability.

25:31 - And if I can get through that argument,

25:33 - it would easily I think that they that that that shows it.

25:37 - But but what we but but we don't have a private compact. Yes.

25:41 - There are uninsured, defendants.

25:43 - There are underinsured defendants.

25:45 - There are people who get, who get less than, they might be entitled.

25:50 - And by the way, under a cap,

25:52 - under a cap, you get less than that than than than the value.

25:56 - And yes, there is a judgment call that has to be made.

25:59 - And yes, it's a tough call that has to be made.

26:03 - But the suggestion now. So can I interrupt?

26:06 - You're giving away the barn here.

26:09 - I mean, the difference in the end, insured motorist case where you have somebody

26:12 - whose judgment proof the government did not create your inability to recover.

26:18 - If I that is incidental to the characteristic of the defendant

26:23 - here we have a lack of recovery by design of the legislature.

26:28 - I was saying in in a different way and a less artful way.

26:31 - Correct.

26:31 - Well, I guess I guess you could argue that the we could get an argument

26:36 - that the legislature created a lack of recovery

26:40 - by setting the minimum coverage limits so low that someone

26:44 - who is catastrophically injured in an auto accident could never recover.

26:48 - And that's the minimum coverage.

26:49 - The 1530s is a legislatively created and some crafty lawyer could could

26:55 - certainly Somalia can make the argument the General Assembly is denying us

26:59 - of a remedy because they haven't adjusted the minimum coverage, for decades.

27:04 - I'd like to think of myself as less than crafty or not.

27:08 - That description, but but but the but the brilliant savvy.

27:12 - Well, I don't know, insightful insight.

27:14 - I don't know, I know I'm trying to do my best for Haley.

27:18 - I have that seminar in law school that we had called crafty.

27:22 - I, I missed that, obviously,

27:25 - because I needed Justice Donahue at my rescue on that on that one question.

27:29 - But what I but what I do see here, what I do see here is something

27:33 - completely different because as I was praying for this argument,

27:37 - the one thing that I saw is different is that there was a compact made

27:40 - with the citizenry.

27:42 - It was how we are going to go about about this.

27:45 - And they decided, by the way, in their lack of wisdom,

27:48 - not to have a cost of living increase in the most draconian of capped states.

27:53 - There are cost of living increases.

27:55 - I understand some kind of inflation adjustments.

27:58 - I think that's a is a strong argument that you have the

28:01 - that they've given with one hand and taken away with the other.

28:04 - The remedy is illusory and that it defeats the remedies clause.

28:08 - My question on that is this it doesn't just say shall have a remedy,

28:12 - it says shall have remedy by due course of law.

28:16 - And then the next sentence is it suits may be brought, etc.

28:20 - In such cases as the legislature may by law direct,

28:25 - which suggests that they can make it illusory.

28:29 - In other words, with law, with due course of law in effect,

28:34 - in a tragic case like Miss Felix deprive you of that remedy.

28:38 - So, like brass tacks in the hard cases

28:42 - that constitutionally they can choose

28:47 - to, deprive her of a remedy she would otherwise have. Why?

28:52 - Because it is by due course of law that they chose in their cruelty

28:58 - and in their ignorance, benighted in this to prescribe.

29:01 - How would you respond to that?

29:02 - I think it's just the opposite.

29:04 - I think by due course of law, I mean, so that they need

29:06 - that if they provided a remedy,

29:08 - it shall be a real remedy, not something that is illusory.

29:12 - I think it's I frankly think it's just the opposite.

29:15 - And I think that what we have here is exactly that.

29:19 - If this constitutional scheme that they had

29:22 - had a cost of living adjustment, let's just say for, for,

29:25 - for sake of argument and the cap by the, a recent study,

29:29 - shows that it would be worth $1.1 million today.

29:34 - Haley Friedrich would have had some remedy.

29:37 - Not a full remedy, and maybe not a remedy with which I would agree.

29:43 - But she would have had a remedy here.

29:46 - Would she have a remedy here if they accepted

29:47 - the tender of the 250,000?

29:49 - No, not none.

29:51 - When did they tender the limits?

29:53 - I think at or around trial.

29:57 - I might be wrong.

29:58 - I after she had a couple hundred thousand dollars in liens.

30:01 - Yeah. She had $500,000 in leads, by the way.

30:03 - First priority liens by Aetna.

30:06 - The that policy,

30:07 - which is part of this record, says that their first priority leads.

30:10 - She owes money.

30:12 - She owes money.

30:14 - And, that can't be right.

30:18 - Counsel, can I ask you a question that goes back to basics here?

30:21 - It's just this line here.

30:23 - I, I must be throwing money for a since you're looking over there.

30:26 - Oh, no, I, I, I see what or

30:30 - how did the legislature pick $250,000?

30:34 - What was the intention of the legislature when they chose that number

30:40 - all those many years ago?

30:41 - It was ill conceived.

30:43 - And but what was the purpose?

30:44 - It was it was to protect the public purse now.

30:47 - And it was. Well, that in part.

30:49 - But I mean but it was they didn't like they didn't

30:52 - extinguish remedies.

30:55 - What they did is they modified the remedy and they had to have something in mind

31:01 - as to what that $250,000 was going to provide.

31:07 - As relief for Iran.

31:10 - So so what?

31:11 - Where did $250,000 come from?

31:13 - Yeah.

31:14 - I, I don't know that I can tell you with specificity,

31:17 - but it doesn't have to be reason.

31:19 - Even if we applied rational basis, which we don't be

31:22 - until the remedies class, we we apply intermediate scrutiny.

31:26 - But even if we even if we even if we applied rational basis,

31:32 - there has to be an explanation for the choice and the cap.

31:37 - There was $250,000

31:40 - intended to provide edge recovery for it was,

31:44 - I think, intended to provide aid for the

31:49 - for most modest injuries

31:51 - which occur, not catastrophic injuries.

31:55 - Can they do it?

31:55 - What can the legislature do that the can the legislature discriminate

31:59 - between individuals who are catastrophically injured

32:04 - and provide no, relief versus

32:08 - providing a benefit for somebody who slips and falls and breaks an ankle?

32:13 - Gee, that might might pass through, some, some,

32:18 - intermediate scrutiny analysis, but I don't I don't think so.

32:23 - And and I don't think so.

32:24 - Why don't you think so?

32:25 - Well, I start with

32:26 - the Constitution does not violate article one, section 26 of our Constitution.

32:32 - The anti-discrimination clause,

32:36 - probably. Yes.

32:38 - And, and and I would add that, that, that an additional problem

32:43 - is that at or about the same time the, the legislature adopted

32:48 - the Political Subdivision Tort Claims Act, which provided for $500,000 as a remedy

32:53 - that has never made any sense to me.

32:57 - They projected the they protected the Commonwealth purse, the Commonwealth

33:00 - having a much, a larger capacity

33:05 - to pay claims, twice

33:09 - as as as or as graciously, to themselves

33:13 - than they gave to political subdivisions like, Shamokin borough.

33:17 - So just to pick a place. So,

33:21 - you know, you can't attribute rationality

33:25 - to, to, to that statute, and I've just maybe wrongly so accepted.

33:30 - Okay. This is the starting point that I have here.

33:33 - And I'm going to go about proving that this statute cannot

33:36 - and does not compensate an individual.

33:39 - And how can that be when the government, gave a right,

33:43 - not some statute which regulates how much an individual

33:49 - must ensure themselves, but rather what the government's willing to pay down.

33:53 - So if we follow your argument and we find that it is unconstitutional

33:59 - and severable understanding that the intent of the General

34:03 - Assembly is to protect the Commonwealth, the Commonwealth moneys

34:08 - is the end result,

34:10 - limitless liability on the Commonwealth

34:12 - until the General Assembly revisits.

34:15 - Is that what you're suggesting and proposing?

34:18 - And if so, how does that not fly in complete contradiction

34:22 - to the purpose of the cap, which is to protect the Commonwealth monies?

34:27 - Well, I would start I would start here and I'll try to be brief.

34:30 - I would start with, 1973, when the Political Subdivision

34:34 - Tort Claims Act was declared on a common law basis, unconstitutional.

34:39 - I did wrong.

34:42 - And, and there was a period of five years when there was a,

34:46 - when there was no cap, interestingly, in 1978

34:51 - and I and I promised to answer when 1st May like, was,

34:56 - was was enacted.

34:57 - It took the legislature two months to get a, to get a statute passed.

35:03 - And, yes, the Commonwealth would be exposed to.

35:07 - Yeah, I think so.

35:08 - Under whatever you write, they'll be exposed.

35:11 - And if you were to to say that a plaintiff

35:16 - such as Haley Friel gets no remedy, no recovery,

35:20 - it's, it's as applied.

35:23 - Unconstitutional to her.

35:26 - Well, there might be some other case

35:28 - or 2 or 3 out there that might fit that rubric.

35:31 - The sky won't fall.

35:32 - And the and the Commonwealth won't disappear.

35:35 - I know it's too easy for me to say, trust me, but trust me, it's not

35:39 - going to happen. Actually,

35:43 - catastrophic cases are few and far between.

35:46 - Against the against the Commonwealth.

35:47 - That's the truth of the matter.

35:49 - That's what the studies show.

35:51 - That's what the the the study of the of the state Senate showed.

35:54 - It's part of this record, few and far between.

35:57 - And,

36:01 - but the larger problem

36:02 - is the catastrophically injured person who doesn't have a remedy.

36:06 - There's no remedy.

36:07 - And we can now get into a debate.

36:09 - What number would be a remedy?

36:11 - And I'm going to I'm going to put that rabbit in the hat

36:14 - because it's out there with $50.

36:16 - With $500 with 5000 with 500,000

36:20 - with what's beyond de minimis, jeez,

36:23 - are you down here and you're up there.

36:27 - So, you know, I don't know.

36:29 - I don't know that I can provide that answer,

36:31 - but I can tell you what I see on its face here, is that

36:37 - she has no remedy, and there's, and and yes, it would expose.

36:41 - Yes, yes, your Honor, it would expose the Commonwealth.

36:44 - But I would suggest it will it will likely

36:47 - expose the Commonwealth for some short period of time when they get to it,

36:53 - when they get to, when they get to, to fixing it.

36:56 - And then you can look at it through a different prism.

36:59 - You look at through the prism that, that the genuine and the earnest,

37:03 - and the, and the purposeful actions by a legislature who now understands

37:10 - that you can get to zero with the erosion of time

37:14 - of, of the of the purchasing power of money of $250,000.

37:19 - That's in the for me, the come on category.

37:22 - Mr. Carney, you agree that that

37:23 - and if we issue the decision that you want in response,

37:27 - the General Assembly could constitutionally

37:29 - just get rid of all the exceptions to sovereign immunity.

37:33 - They could, in which case, in which case,

37:36 - no one will recover against the Commonwealth

37:38 - because the Commonwealth has sovereign immunity.

37:39 - And that's constitutional in your view.

37:41 - They can they can, rewrite

37:45 - the statute to exclude certain provisions.

37:48 - Yes, but I'm not operating.

37:50 - Can't get rid of. I'm not. Yes,

37:52 - yes, but I go broader than that.

37:54 - They could rewrite a different scheme just as well, of course.

37:59 - And, and so and so I don't want to get into

38:02 - I think if you, if you, cab in the argument the way that you have

38:07 - justice props and I think that what you do is that you create

38:11 - a, kind of a rabbit hole that you can't that you can't get out of it.

38:15 - Let me let me follow up on justice Providence question.

38:17 - So suppose the court, agrees

38:22 - with you and strikes the cap,

38:26 - finds it unconstitutional, and bring in year round in the General Assembly.

38:30 - Then, and the General Assembly, responds

38:35 - by saying, okay,

38:37 - we're not going to, waive sovereign immunity.

38:42 - We're going to direct that in such cases as the legislature made by Law

38:46 - direct, we're directing.

38:48 - No, no, amenability to suit.

38:50 - So you're conceding, I think, that

38:54 - that that would not violate the Constitution.

38:57 - So I, I return to the question.

38:59 - If they can say $0, why can't they say $250,000?

39:04 - I don't understand the point.

39:09 - That we're operating under the current statute

39:12 - as enacted by the General Assembly.

39:16 - That that purported to give a remedy where there is no remedy.

39:21 - You want to decide some, some fictional proposition

39:26 - that, by the way, is very unlikely to happen.

39:29 - So, I think at that point, this court would revisit.

39:33 - Well, I think what would happen is this court would revisit, sovereign immunity.

39:39 - And as with charitable immunity and sovereign immunity,

39:43 - you would be confronted probably for the first time.

39:46 - I hope I'm around to bring the case if all of this happens, but I.

39:50 - It would be the, it would be a time when this court would have to decide.

39:55 - Is that within the constitutional framework

39:59 - of right to trial by jury and right to, and right to,

40:04 - a remedy and right to open courts?

40:06 - And the answer to that, would be

40:09 - no, I think it would be a resounding

40:13 - no, that we're not going to go back, into the,

40:17 - into the

40:18 - 1800s again, it's not going to happen.

40:22 - So I don't see. Yes.

40:24 - I mean, I think that that they could pass that

40:27 - that's what you're asking me, but I don't think that it would.

40:30 - I don't think it would.

40:31 - I don't think it would stand constitutional scrutiny,

40:36 - let alone, scrutiny under under.

40:39 - Well, it wouldn't, it wouldn't, it wouldn't just,

40:43 - under it wouldn't be sustained by constitutional scrutiny.

40:47 - Mr. Klein, I was curious about something you referenced earlier that, legislature

40:52 - could, rather than having a cap based system, have a different system

40:58 - where cases are screened based on their seriousness.

41:01 - Only catastrophic cases can be brought, etc..

41:03 - How would that work?

41:04 - How would that be defined?

41:06 - Oh, there there are a host of ways to do it.

41:11 - Some of us who

41:12 - have lived in this world have given it, have given it thought,

41:15 - the new Jersey system, I, represented

41:19 - a woman who who died in a, in a derailment in Hoboken.

41:24 - And in that case, I'm familiar with that statute, which provides

41:29 - that, only, injuries which made a serious,

41:33 - permanent injury threshold are compensable.

41:37 - It essentially knocks out the whole bottom layer of the, of the tort,

41:43 - of tort claims and, that's sustained.

41:46 - That's that's been been said to be a constitutionally, valid scheme.

41:52 - There are, you know, there are there are other ways to do it.

41:57 - There could be the legislature since I've been asked to kind of muse

42:01 - about this there, the legislature could establish, could, could establish

42:05 - some sensible cap that could consistent with current earning power.

42:11 - And the legislature could then have

42:13 - a catastrophic injury fund, which is built every year.

42:17 - The budget of the Commonwealth is 27 billion.

42:20 - The payments for the largest transit authority, I think is 27 million.

42:26 - So there's, there's capacity since we're talking about

42:29 - state or quasi state actors to, to provide

42:33 - a, a fund from which, I don't I don't think they should be compensated.

42:39 - Quote.

42:39 - No fault, but I think that you could create

42:41 - the financial capacity to be able to do that.

42:45 - There are people who have thought about this

42:47 - and should be thinking about this, and have been told to think about this

42:52 - sound like great ideas, but don't they belong in Harrisburg?

42:55 - Yes, I asked yes, I asked and amused.

42:58 - Yes, they they all they all belong in Harrisburg.

43:02 - All belong in Harrisburg.

43:03 - But and but but but I believe that, Harrisburg has to think about them.

43:09 - And, they're never going to think about them.

43:12 - If a woman who gets nothing gets no compensation

43:17 - under a scheme which the public purpose of the General Assembly,

43:21 - the elected individuals of of our Commonwealth,

43:25 - signed by the governor, decided to compensate them.

43:29 - There were two parts to that, to that compact, one

43:32 - to protect the public purse and two to provide a remedy.

43:37 - And the second is violated by the erosion of time, as proven in this case.

43:42 - And that's why I think that we have admittedly

43:45 - so threaded the needle with a small hole.

43:49 - But we've threaded the needle and proven the case,

43:53 - and cases and controversy are meant to prove individual cases.

43:57 - And we've proven it.

43:58 - That's how I see it.

43:59 - That's how I've seen it since the day we brought it in front of Judge Crumbly,

44:03 - who said that the trial court looked at this and said

44:07 - compelled to to to to to to reduce it.

44:10 - But it is a an injustice.

44:14 - I think you you stronger where it's an injustice.

44:16 - And as we've gone up the ladder, every judge who I've been

44:20 - in front of Judge Mellen in Bucks County and saw off like it's an injustice.

44:23 - And that case, she got something.

44:25 - And in this case, a Judge Ledbetter,

44:32 - seasoned jurist, spoke out,

44:36 - concurrence, which reads more like a dissent.

44:38 - Because it's wrong.

44:41 - Because it's wrong.

44:42 - Well, there I mean, there's probably nobody up here who thinks it's not wrong.

44:46 - The question is, is it unconstitutional?

44:49 - It is wrong and it's unconstitutional

44:53 - because they get to do stupid things.

44:55 - They do stupid things, and you get to tell them

44:57 - that they were stupid and correct them.

44:59 - Well, we get to tell them they a stupid.

45:01 - Yes, we get to ask them to correct themselves.

45:06 - The question is, when we in so many cases tell the judge, you say

45:11 - this is a matter for you, you need to fix it, you need to fix it,

45:13 - you need to fix it. And they affirmatively choose

45:15 - not to fix it because they're choosing not to fix it.

45:18 - Then the question is, okay, once we elected, once we erected

45:21 - that Jersey barrier between our lane and the legislature's lane,

45:25 - you're asking us to pull the Jersey barrier up and now us go into the lane

45:29 - that we said is where the where the General Assembly is supposed to fix.

45:33 - I don't think that I'm asking you to get in that lane.

45:35 - I just don't think I'm asking you to get in that lane.

45:38 - I'm getting I'm asking, I'm asking this court to rule on this awful case.

45:44 - And I'm not asking you to do any legislating of any kind.

45:48 - Yeah.

45:48 - If we are going to get in the other lane,

45:50 - in my perspective, from my perspective, we would be rewriting the statute.

45:54 - And you're not asking us to do that?

45:56 - Absolutely not.

45:58 - All right.

45:58 - Are there any other questions for Mr. Klein?

46:02 - Do you have anything you'd like to close with?

46:04 - I, I stepped into this courtroom as a law

46:07 - clerk in 1978, for Justice Pomeroy.

46:10 - And it is an honor to be here, at least once in every of five decades.

46:17 - I. And I am proud to be a member of this bar, proud of this court.

46:22 - Proud to be in front of your honors.

46:25 - Whatever the decision is, thank you for hearing.

46:27 - And thank you. Well done and well said.

46:29 - Let's hear from, your opposing counsel.

46:35 - Or in in your honors may please the court.

46:37 - Robert Columbus, on behalf of Septa and your honors, I'll be addressing

46:41 - the first two issues that the court has accepted for review

46:44 - relating to the constitutionality of the damages cap. Mr.

46:47 - Kirkpatrick, from the Office of Attorney

46:49 - General, will address the court's third question relating to severability.

46:54 - Your honors, Mr.

46:56 - Klein has framed this case as a narrow challenge

46:59 - and requesting only as applied relief.

47:03 - But as is already come out in the arguments,

47:05 - there is no way that this court can grant Miss Free

47:09 - like the relief she seeks without far reaching consequences.

47:14 - Well beyond this case and radical changes to existing law,

47:19 - the court would need to completely reimagine article one, section 11.

47:24 - It is, as it's been interpreted by this court

47:27 - for over 45 years, but counsel, I don't mean to cut you off,

47:30 - but let me cut to the chase. Break.

47:32 - The fact that you stipulated to the amount of damages is that in

47:36 - and of itself, not a concession, that the cap is unconstitutional?

47:40 - Absolutely not. Your why?

47:42 - Why should we not see that if you agree to it?

47:44 - Because.

47:45 - Because the right to a remedy, the right to recover

47:48 - is determined by the cap under article one, section 11.

47:52 - Why didn't you stipulate to the $250,000?

47:55 - Because it was the same as if the jury had returned a $7 million verdict.

47:59 - There's no difference in either case.

48:01 - There was an award that determined this was the amount of her injury,

48:06 - and then the cap is applied

48:09 - by law pursuant to article one, section 11.

48:12 - And this court unanimously held under the Remedies Clause

48:17 - that that is appropriate and constitutional ends off.

48:20 - Look, there's no even the concurrence, since Affleck didn't question

48:24 - the fact that under the remedies clause that's constitutional here today, Mr.

48:28 - Klein confirmed he's not seeking to abrogate softwood.

48:32 - There's also no question.

48:33 - And again, the plaintiffs can see this in their brief at page 62, in the opening

48:37 - brief and two and 226 to 28 in the reply brief,

48:41 - there is no question that the General Assembly

48:44 - has the constitutional power to impose damages caps, even in cases

48:49 - where it allows a remedy to be a case to be brought against it.

48:53 - So the question is just whether the General Assembly

48:56 - has the power to impose this cap, and it does it.

48:59 - This court held it did under article one, section 11, just ten years ago.

49:04 - But that was a facial challenge.

49:06 - This is and there's no difference, Your Honor.

49:08 - And this is where I'm going.

49:09 - The the fact that this is an as applied challenge would not mean

49:13 - that the result of this case would somehow be narrow.

49:16 - The court would need to reimagine article one, section 11.

49:18 - It would need to recognize the right to a jury trial against Commonwealth

49:22 - that has never existed in Pennsylvania history.

49:25 - It would, under Mr.

49:26 - Klein's theory, connect a civil litigants jury right

49:31 - to her ability to obtain counsel, which, frankly,

49:35 - Your Honor, is a proposition with such far reaching

49:38 - consequences that it's hard to get one's mind around them.

49:41 - Counsel, can we go back to a statement you've made repeatedly,

49:44 - which is reimagining article one, section 11?

49:47 - Yes, your Honor, you're talking about what sentence are because the two

49:50 - are totally unrelated in purpose and intent.

49:53 - So what part would we have to reimagine?

49:56 - The part that says that anyone who is injured has a right to a remedy?

50:00 - Or do we have to reimagine the second sentence

50:04 - that's been interpreted to say that the legislature

50:07 - can create, immunity based upon sovereign immunity?

50:11 - It would be both, your honor.

50:12 - Now, let's talk about the first sentence, because that's where I'm.

50:15 - That's where I'm troubled.

50:17 - I understand,

50:17 - because this court has gone a long way to bastardize that first sentence,

50:21 - but I think we still have some remaining principles involved with that.

50:26 - Here, the legislature did not intend

50:30 - to eradicate a remedy.

50:33 - They did not, obviously, because they created exceptions.

50:36 - So they intentionally decided that for certain injuries

50:41 - there would be a remedy with me so far.

50:45 - You agree that's what the exceptions do.

50:47 - They provide a remedy

50:48 - to someone who's injured by the negligence of the Commonwealth?

50:51 - Up to 250,000 and while that's fine, it could be used to say

50:55 - that whenever you want to say it.

50:56 - But they they agreed that there was going to be a remedy in that circumstance.

51:00 - My question to you is, in a case of a catastrophic injury

51:06 - like we have before us here, there is no remedy.

51:10 - So the intention of the legislature is not effectuated.

51:14 - In a circumstance of where we are

51:17 - today with a catastrophic injury.

51:20 - Is that okay?

51:21 - Your honor, this court unanimously held it off like that.

51:24 - It is. Okay. And here's why.

51:26 - Because the right to remedy in the first sentence is

51:29 - necessarily limited in cases against the Commonwealth.

51:32 - That is what this court unanimously held off like

51:35 - that was because we were looking at the exceptions

51:39 - and there wasn't a direct challenge

51:42 - to the amount of the remedy as applied

51:46 - to a catastrophic injury, which essentially has been admitted here.

51:51 - I get your point as to the stipulation, but I think we would all agree that a $7

51:56 - million verdict would be representative of a catastrophic entry, correct.

52:00 - And I think that that's where we got in this case

52:03 - that we have, a situation on the record

52:07 - where we have a catastrophic injury for which there will be no remedy.

52:11 - We didn't have that issuance off like,

52:14 - I disagree, Your Honor.

52:15 - That was the issuance off.

52:16 - Like there was a $14 million verdict and a $500,000 cap.

52:20 - And the cap was challenged as a facial matter.

52:23 - And this court held that the right to a remedy under the first sentence

52:26 - of article one, section 11, is necessarily limited by the General Assembly's

52:31 - power under the second sentence to eliminate any remedy which Mr.

52:36 - Cline has admitted it can do constitutionally

52:39 - or as a as a lesser restriction

52:42 - to to cap the damages against the plaintiff.

52:46 - Doesn't that have to doesn't the cap have to be I'm going to use the lowest

52:51 - standard rationally related to something.

52:55 - Yes, Your honor, and this is.

52:56 - And what would that be?

52:57 - Well, Mr.

52:59 - Cline cited the 2022 report that the legislature commissioned

53:02 - in response to this court's rulings with that report shows,

53:06 - is that over, over the entirety of the cap,

53:10 - point 2%, point

53:12 - 2% of all claims against the Commonwealth were for claims over

53:17 - $200,000, meaning approaching the cap not even hitting the cap. So.

53:21 - So 99.8% of claims against Commonwealth come under the cap.

53:25 - But Your Honor, those 2.2% of claims

53:29 - account for 39% of the budgetary impact

53:34 - of the claims against Commonwealth with the legislature constitute

53:38 - nationally and appropriately did through the cap was to strike a balance.

53:42 - It is certainly tragic and not fair to the individual who is burdened by the cap.

53:48 - There is no question about that.

53:49 - What number are you talking about?

53:51 - The $250,000, or the 1.1 million

53:54 - that they think would be the current equivalent of that number?

53:57 - The number in the report is the $250,000.

54:00 - And I will add that the report also look specifically at the decade between 2010

54:06 - and 2020, where the impact of inflation would be the greatest.

54:10 - And it was still point 2% of claims were over 200,000,

54:14 - and those claims accounted for 39.2% of the budgetary impact.

54:18 - So even if we're looking at the time period where the legislature

54:22 - has let the cap sit in recent years after this court's decisions,

54:27 - there is a completely rational basis for that choice, Your Honor,

54:31 - and it's a choice that this court has said repeatedly.

54:35 - And Smith in Suffolk that the legislature has complete control over.

54:41 - That's this court's language.

54:43 - Complete control in Smith versus City of Philadelphia, a case which, again,

54:48 - the plaintiff says she is not seeking to abrogate.

54:52 - Justice Wecht, you asked a question about how relief in this case

54:56 - could could stand next to that reasoning, and it can't.

55:00 - There is no way it can.

55:02 - And the plaintiff certainly has certainly hasn't offered any,

55:05 - hasn't offered any in its brief, and it hasn't offered any today.

55:09 - I'd make another point.

55:10 - Justice Donohue, the cap was set in 1978.

55:13 - In the in.

55:14 - Obviously, inflation has changed the value of the cap over time in the trial court.

55:19 - In this case, plaintiff produced an expert report that said the value

55:23 - of the cap today accounting for inflation, would be $843,000

55:29 - if Miss Freilich had been awarded $843,000 instead of $250,000,

55:34 - she would have really received nothing in this case.

55:37 - Same same exact result would have been

55:40 - a rational explanation for why

55:43 - the legislature picked the number,

55:46 - the rational explanation for why the legislature

55:49 - picked the numbers in the 1978 joint report with the legislature

55:54 - did, was to rely on similar caps in other states,

55:57 - and to candidly admit that it was going to try this cap

56:00 - as a balance, and then see how it worked out.

56:04 - And the way that it worked out is that the cap is sufficient

56:07 - for 99.8% of all claims since 1978.

56:11 - Is that because claims are being being brought because of the cap?

56:15 - No, Your Honor, I don't think it is. There,

56:18 - at least since

56:19 - 2010, 2010 to 2020, there are 76,000 claims that were brought.

56:23 - It's not for lack of below the cap.

56:27 - No total claims.

56:30 - But again, the 39% budgetary impact of that point 2%.

56:35 - This is I mean, that's a tremendous,

56:37 - tremendously outsized impact of the large claims.

56:40 - And, Your Honor, that's with the cap.

56:42 - So one one has to ask oneself what the effect would be of raising the cap.

56:47 - That is a rational basis.

56:49 - This court has said that's the rational basis in Smith and reasoning that Mr.

56:53 - Klein doesn't ask this court to overrule in Zoff logic, in reasoning that

56:57 - this court unanimously chose and is not being asked to overrule,

57:02 - what the court is being asked to do is fashion as applied remedy

57:06 - with no legal rule, no guidance about how to do that?

57:11 - Would $843,000 be sufficient?

57:14 - Well, Miss Freilich would still get nothing under that.

57:17 - Her insurance ness.

57:18 - We're not being asked to craft a remedy.

57:21 - We're being asked to declare something unconstitutional as applied

57:25 - and leave it to the legislature to choose whether to re

57:28 - craft the legislation.

57:31 - Madam Chief Justice, I respectfully disagree with that

57:34 - because this is an as applied challenge.

57:37 - Mr. Klein is saying that specifically,

57:40 - he's only asking for a remedy in this case that something will have to be done.

57:44 - The court could strike the cap on an as applied basis.

57:47 - And then what?

57:48 - In Mr.

57:48 - Klein's world, she gets $7 million.

57:52 - But is $7 million the minimum amount that's needed in order

57:57 - to vindicate her right to a jury trial or her right to a remedy?

58:01 - If the answer to that question is yes, then the court will have effectively

58:04 - struck the cap on a facial basis,

58:07 - and that is a recipe for potential unlimited liability.

58:11 - It will put juries and trial judges across the state in control of public budgets.

58:17 - In a way, the counsel, you've told us that there are so few cases

58:22 - that exceed the cap, what's the danger of that happening?

58:26 - I mean, your point is we just don't have very many cases

58:29 - against the Commonwealth that exceed the cap.

58:31 - So if we struck it in this case on a facial basis,

58:35 - that might be the end of it as applied.

58:38 - If we start to said it would not be the end of it.

58:41 - No. Until four years from now when another case might pop up.

58:44 - No, Your Honor, it would be a starting gun for future cases

58:47 - if it were to say that as applied challenges like this one were permitted,

58:51 - then the court could expect the trial courts to be dealing

58:56 - with this issue in every case where the cap potentially applies.

58:59 - And your Honor, I want to make sure that you're on the cases.

59:02 - I'm sorry, 2% of the cases I'm putting Your Honor against.

59:06 - Please remember the second half of that point, 2% of cases,

59:10 - with 39% of the economic impact on budgets, 0.2%,

59:15 - 39% of the economic impact, 44 out of $10 that the Commonwealth has spent

59:22 - for claims have gone to

59:23 - the larger cases, and that is with the cap.

59:27 - If the court were to just take the cap out or allow it to be

59:31 - taken out by trial judges on an as applied basis,

59:35 - it is obvious that

59:37 - that 40% would jump and jump.

59:40 - It would in a case like this one.

59:43 - Just by way of example, Scepters budget

59:45 - for claims in a given year is $28 million, so this would account for 25%

59:51 - of this whole budget for claims that's going to affect services or fares.

59:56 - They buy insurance.

59:57 - So that is not insurable.

59:59 - 366 Then in many other municipalities, agencies

01:00 - 05.267 are not insurable for the same reason.

01:00 - 07.669 They're providing essential services.

01:00 - 10.305 They have no choice to get out of that business.

01:00 - 14.009 I would say, Your Honor, I also want to let the court know that of the

01:00 - 19.515 the point 2% of cases where the cap is at least approached, 80% of them

01:00 - 23.518 arise in areas of policing,

01:00 - 27.624 corrections, transportation and higher education.

01:00 - 31.694 These are core services that the Commonwealth provides.

01:00 - 37.032 Is that math that you were going through a moment ago, counsel that point 2%

01:00 - 40.469 and that 39%, perhaps a reason

01:00 - 43.640 why the Constitution says in such manner

01:00 - 48.443 in such courts and in such cases as the legislature, may by law direct,

01:00 - 54.150 because the legislature has to weigh these things and and not this court.

01:00 - 56.218 That's exactly right, Your Honor.

01:00 - 57.020 That's exactly right.

01:00 - 01.758 And if the court were to attempt to begin that weighing process on its own,

01:01 - 04.793 it would have to write principles

01:01 - 08.630 from scratch, because they don't exist in American jurisprudence today.

01:01 - 10.899 They don't exist in this court's jurisprudence,

01:01 - 14.103 and they don't exist in the jurisprudence of any other state in the country.

01:01 - 17.740 Because, your honors, no court of last resort in this country

01:01 - 21.110 has ever struck an an as applied or facial basis,

01:01 - 23.613 a statutory damages cap against a sovereign.

01:01 - 28.651 So so your argument is in such cases

01:01 - 33.221 includes in cases where damages are far

01:01 - 36.225 below $250,000.

01:01 - 39.429 That would be in such case, the General Assembly could provide.

01:01 - 45.033 I would say it also is located in article one, section 11, in the in such manner.

01:01 - 45.668 Well, right.

01:01 - 49.204 But you're saying you're saying that exercise in such manner in such cases

01:01 - 53.075 extends to the exceptions and exceptions

01:01 - 56.079 where the damages are below $250,000.

01:01 - 00.917 So somebody I want to call them small claims, but certainly not large class.

01:02 - 05.187 No, I mean, I'm saying that the largest if I, I think I understand your question,

01:02 - 08.223 but the legislature has the ability to limit to limit doubt,

01:02 - 09.658 to eliminate its liability.

01:02 - 13.528 They have they have the ability to allow lawsuits against the Commonwealth

01:02 - 16.498 up to that lawsuits that will generate up to a certain recovery.

01:02 - 17.966 Correct. And the plaintiff agrees with that.

01:02 - 23.840 So how do you respond to, the plaintiff's view, though, that they ignore that

01:02 - 27.977 by simply creating an exception,

01:02 - 31.413 ignore the cap that they want the they they would have you have the cap

01:02 - 34.784 be a separate thing from the waivers that you just focus on the waivers

01:02 - 38.654 by giving the waiver in and of itself.

01:02 - 43.826 That circles back to the first sentence of article one, section 11.

01:02 - 48.331 And once they give the waiver, the first sentence kicks back in.

01:02 - 50.265 Ignore the cap.

01:02 - 55.104 And then then you evaluate the cap against the first sentence.

01:02 - 55.671 Right.

01:02 - 01.344 So how do you respond to that reasoning that that the cap

01:03 - 04.680 is an exercise of the first sentence and not the second?

01:03 - 09.452 The court rejected that argument squarely in Smith versus City of Philadelphia.

01:03 - 15.391 What it held is that the second sentence is encompasses the ability to cap damages.

01:03 - 18.393 And that's that's logical

01:03 - 21.797 and required because the ability of the legislature

01:03 - 26.334 to eliminate the remedy altogether, which it clearly has and Mr.

01:03 - 32.507 Klein concedes, must necessarily include the lesser power to limit damages.

01:03 - 35.711 The court said that any other holding this is the court's words

01:03 - 39.115 would be absurd, or at least unreasonable.

01:03 - 43.718 Mr. Klein has admitted he is not seeking to overrule Smith,

01:03 - 47.623 and he's not seeking to overrule Zoff where this court re adopted that.

01:03 - 52.294 So I mean, on the on the remedies clause there,

01:03 - 56.798 as far as I'm aware, is is no precedent today for Mr.

01:03 - 00.837 Klein to point to at least with respect to article one, section six,

01:04 - 04.039 there are two concurrence, and we stay with the remedies clause.

01:04 - 04.640 Sir Norman,

01:04 - 09.445 and let me ask you the same question that I asked your opposing counsel.

01:04 - 12.280 Can the legislature

01:04 - 17.352 legislatively discriminate between individuals

01:04 - 21.390 who are catastrophically injured and those who are not?

01:04 - 23.925 Yes, Your Honor, and the court held as much

01:04 - 27.396 when it rejected the equal protection challenge unanimously in Zoff.

01:04 - 30.465 And we've overruled that decision,

01:04 - 34.737 our, jurisprudence on article one, section 26,

01:04 - 38.541 the nondiscrimination clause provides that.

01:04 - 40.476 True.

01:04 - 42.878 They may not have to confer a benefit.

01:04 - 44.412 That's absolutely right.

01:04 - 48.918 But once they do, they need to confer that benefit

01:04 - 52.587 so that no one is being deprived

01:04 - 56.025 of a civil right, which is what the challenges here are.

01:04 - 00.363 The court has never overruled that holding and soft luck, but we've overrule the,

01:05 - 05.735 precedent underlying it's article one, section 26, holding

01:05 - 09.071 not with respect to the Commonwealth's ability.

01:05 - 10.373 Well, that's my question.

01:05 - 14.443 Can't can the Commonwealth

01:05 - 19.080 violate article one, section 26 by doing what it does

01:05 - 22.851 here, creating a remedy for catastrophically injured,

01:05 - 27.089 Pennsylvanians and those who are not catastrophically injured.

01:05 - 31.660 It can, your honor, under its express authority under the second sentence

01:05 - 35.597 of article one, section 11, to determine the manner the courts

01:05 - 37.232 and the cases in which it soon.

01:05 - 43.305 But article one, section 26, expressly says that the government

01:05 - 46.775 cannot unequally confer

01:05 - 51.380 or deny benefits so as to deprive a civil right.

01:05 - 54.517 We've interpreted civil right to mean constitutional right.

01:05 - 59.421 So so I, I you make the argument repeatedly as I think your co-counsel

01:05 - 04.859 dies, that, you can't violate the Constitution with the Constitution.

01:06 - 08.664 But, I think based upon article one, section 26, you can.

01:06 - 10.665 Your honor, I make two points.

01:06 - 14.302 First of all, to repeat myself, the court rejected that exact opinion.

01:06 - 15.571 And secondly,

01:06 - 20.342 Mr. Cline and the plaintiff have not raised that question at all. So.

01:06 - 22.277 So I understand your point,

01:06 - 26.082 but it's it is beyond the question that this court has accepted for review.

01:06 - 29.584 And now, Your Honor, we're into the world of straightforward

01:06 - 33.289 facial challenges to the cap, not a narrow as applied challenge.

01:06 - 38.059 And and that's the point is that this isn't a narrow as applied challenge.

01:06 - 41.830 The court will immediately get to the facial challenge,

01:06 - 44.866 which it unanimously rejected, and which Mr.

01:06 - 47.870 Cline doesn't ask the court to overrule.

01:06 - 51.539 Well, this is I agree with you.

01:06 - 56.444 I have a hard time seeing this as a narrow, as applied challenge.

01:06 - 59.080 This is narrow in the sense

01:06 - 02.551 that it's as applied to those who have catastrophic injuries.

01:07 - 03.819 Yeah.

01:07 - 07.889 Yes, Your Honor, but what what that would that principle,

01:07 - 11.092 if that's the principle of this court, were to apply, it would create

01:07 - 15.897 a catastrophic injury exception to the cap and and that would be the result of it.

01:07 - 19.368 And, first of all, Your Honor, we couldn't do that, really.

01:07 - 19.869 I mean,

01:07 - 23.605 we would have to say some constitutional, but that's again, create an exception.

01:07 - 25.273 We would say it's unconstitutional.

01:07 - 28.844 So again, the remedy in this case needs to be determined

01:07 - 31.546 that the court could say it's unconstitutional

01:07 - 34.482 as applied to miss Freilich, but it needs to determine a remedy.

01:07 - 39.421 If the only remedy is the full award, then the court will be saying

01:07 - 42.992 that in this context, the right to a remedy demands a full award.

01:07 - 47.596 Well, the question begging aspect of it in that context would be

01:07 - 52.601 a jurisprudential, more problematic than a facial challenge,

01:07 - 56.505 because it would it would trigger a case by case parade of cases,

01:07 - 02.844 against which courts would be deprived of any standard to decide.

01:08 - 08.451 Is 7 million enough, or is 5 million enough for four or 3 or 1? So,

01:08 - 11.553 am I am I right about that?

01:08 - 12.587 You were right about that.

01:08 - 16.859 There's no judicially discoverable or manageable standard that's been laid

01:08 - 17.992 by the plaintiff

01:08 - 21.863 that exists in this court's law, or that exists in American jurisprudence.

01:08 - 26.502 It doesn't exist, Your Honor, because for hundreds of years, sovereign immunity

01:08 - 31.673 has been upheld and understood to be a core right of states in this country.

01:08 - 36.077 So a statutory damages cap or a statutory invocation of sovereign

01:08 - 42.183 immunity has never been struck down, never in American jurisprudence.

01:08 - 44.786 So the court would have to write new principles.

01:08 - 46.454 Justice Wecht, you're exactly right.

01:08 - 50.226 Some guidance for trial courts or else we've just got a free for all

01:08 - 53.228 or else some trial judges.

01:08 - 54.163 I mean, this will happen.

01:08 - 55.864 Even the court does provide some principle,

01:08 - 00.002 some some trial judges will will say in this case, $1 million is sufficient

01:09 - 02.971 and others will say $5 million is sufficient.

01:09 - 06.407 Your honor, I would just point out if if the if the award in this case were

01:09 - 10.913 $1 million, miss free liquid, then take home 30,000.

01:09 - 15.117 So I have no idea it's 30,000 sufficient.

01:09 - 19.320 Does this court have principles that it can adopt to say

01:09 - 22.291 that 30,000 is sufficient, but zero isn't?

01:09 - 25.894 Is does she need to take home the effect of $1 million would be her

01:09 - 28.963 insurers would be repaid, the plaintiff's counsel

01:09 - 31.966 would receive a greater fee and she would take $30,000.

01:09 - 34.102 Would that be a vindication of her right to trial?

01:09 - 35.703 I don't know whether Miss Free Liquid

01:09 - 39.542 go to trial so that she could personally take home $30,000,

01:09 - 43.311 but one can reasonably question whether a plaintiff would do that.

01:09 - 47.582 Then we would have no idea what 350 odd Common Pleas judges might do.

01:09 - 50.586 That's right, Your Honor, and be putting those judges in a position

01:09 - 55.558 to directly control the budgets, or at least a portion of the budgets

01:09 - 00.029 of the Commonwealth of its agencies and every municipality in the state.

01:10 - 03.031 It would be to give the judiciary a form

01:10 - 06.435 of legislative and executive control over the public purse.

01:10 - 08.803 That's the effect

01:10 - 13.208 of even the narrow as applied challenge that's being put before the court.

01:10 - 16.645 It still has that effect and it can't be avoided.

01:10 - 20.382 Counsel can can I take you back, again

01:10 - 23.418 to the, test

01:10 - 27.222 that we applied to, challenge to the remedies

01:10 - 30.226 clause, and, we've

01:10 - 32.393 just this mind you wrote the opinion.

01:10 - 35.129 Most of us agreed with the conclusion

01:10 - 38.133 that an intermediate scrutiny applied to it.

01:10 - 43.671 And in that context, do we not look to see if there are other,

01:10 - 46.908 less intrusive ways that the legislature could be,

01:10 - 49.912 doing what it intends to do?

01:10 - 53.581 Yes. Your Honor, if intermediate scrutiny were to apply, that would be the outcome.

01:10 - 55.116 And in end in Zoff,

01:10 - 59.087 the court applied intermediate scrutiny to this context and held it satisfied.

01:10 - 00.755 It under the equal protection challenge.

01:11 - 02.390 So that's passed that test.

01:11 - 03.591 It also passed that test.

01:11 - 08.229 And Smith and I, which we did that based upon this notion

01:11 - 12.835 of a distinction between catastrophic and non catastrophic injuries,

01:11 - 17.439 would you say that Southwick and Smith, control that outcome also?

01:11 - 18.741 I would, Your honor.

01:11 - 22.311 It would because the General Assembly is picking a balance

01:11 - 26.649 that's that's closely related to a core government interest.

01:11 - 32.820 And that balance is supported by the evidence but isn't but but isn't

01:11 - 37.059 the question is there a better way to do it, a less intrusive way to do it?

01:11 - 38.827 I mean, if there is a

01:11 - 42.497 and it is a significant government interest, I mean, and this sort of flows

01:11 - 45.833 from the notion we don't write legislation, all we do is

01:11 - 51.239 look at this and say, is there another way that they could have accomplished

01:11 - 55.044 this that doesn't so intrude upon the right to a remedy

01:11 - 58.747 for catastrophically injured individuals?

01:11 - 04.152 The test is whether the cap is closely related to an important government

01:12 - 05.987 interest.

01:12 - 08.991 There's some question as to whether there are other

01:12 - 11.893 avenues out there, but it's not strict scrutiny.

01:12 - 14.295 It doesn't have to be the least intrusive.

01:12 - 16.698 Are there? Other are other, other methods.

01:12 - 18.433 I'm not aware of any other methods.

01:12 - 22.003 There are 37 states in this country that have damages caps.

01:12 - 26.809 Yeah, but Pennsylvania is at the time listed 5 or 6 different,

01:12 - 29.977 schemes that are used elsewhere.

01:12 - 33.715 Not for us to suggest that our legislature use any one of them,

01:12 - 36.784 but it is an example of the fact that there

01:12 - 40.622 are other mechanisms available to achieve the same goal.

01:12 - 44.159 There are certainly other mechanisms available to achieve the same goal.

01:12 - 46.094 But I think one of the one of the examples Mr.

01:12 - 49.098 Klein gave was that one state only allows,

01:12 - 52.735 a waiver of sovereign immunity for catastrophic injury.

01:12 - 56.671 And failure and other not whatever doesn't mean catastrophic injury.

01:12 - 58.005 You can't sue for that.

01:12 - 02.009 That strikes me as an even greater equal protection issue.

01:13 - 04.979 But see, they're eliminating the remedy entirely here.

01:13 - 06.314 That is not what's happening.

01:13 - 09.451 I understand what the case settles on the point, but here

01:13 - 13.255 the legislature clearly intended to provide a remedy

01:13 - 16.858 for anyone who is injured by the negligence of the Commonwealth.

01:13 - 19.894 Then the 7 or 8 exceptions everywhere in the situation

01:13 - 22.898 that just describes and just describe the eliminated remedy.

01:13 - 25.366 But I'm not in favor of that analysis.

01:13 - 27.402 But that's the analysis that we use here.

01:13 - 29.637 Freeze your storage, etcetera, etcetera.

01:13 - 32.373 Respectfully, Your Honor, it's still a blatant discrimination

01:13 - 34.809 between catastrophic claims and non catastrophic claims.

01:13 - 38.180 So the question not to provide a remedy in that situation.

01:13 - 38.547 Okay.

01:13 - 42.583 Well I think it would still be the same discriminatory choice.

01:13 - 46.621 And your, your view that under our convoluted remedies

01:13 - 50.325 law analysis, which allows them to totally eliminate a remedy

01:13 - 54.129 which allows them to totally clear up, we're going to clear all this up.

01:13 - 55.363 Yeah.

01:13 - 58.566 Mr. Columbus, we understand your argument.

01:13 - 00.468 Would you like to wrap up Your honors?

01:14 - 02.336 I think you've heard my points.

01:14 - 03.638 I appreciate the time today.

01:14 - 04.806 And I'll defer now to Mr.

01:14 - 06.774 Kirkpatrick from the office of Attorney General.

01:14 - 09.778 Thank you.

01:14 - 15.349 Good morning,

01:14 - 18.419 Madam Chief Justice justices, may it please the court.

01:14 - 20.755 My name is Sean Kirkpatrick.

01:14 - 24.092 I'm here on behalf of the intervenor, the Commonwealth of Pennsylvania.

01:14 - 26.194 It's attorney general.

01:14 - 29.697 And I'm here to talk

01:14 - 34.001 a little bit about the, severability, non severability.

01:14 - 37.939 But before I get into that, because I think it directly impacts

01:14 - 43.679 that discussion and, is a concern I have, which is

01:14 - 47.182 even if this court is able to cabin

01:14 - 51.286 this decision to, as applied to just this case,

01:14 - 55.324 if I am a Common Pleas judge

01:14 - 58.359 and I have another catastrophic case

01:14 - 03.364 coming before my my bench, I'm going to need to decide,

01:15 - 07.636 do I sever this cap in this case as well?

01:15 - 09.705 Throughout this

01:15 - 13.174 litigation, there does not seem to be a governing principle,

01:15 - 16.178 let alone the limiting principle that has been articulated.

01:15 - 18.479 There has not been a number.

01:15 - 22.818 And so what goes to my mind is

01:15 - 27.088 let's imagine it's the exact same situation as Mr.

01:15 - 31.259 Freilich experienced, but instead of a Septa bus,

01:15 - 34.263 it was a bus by the Indiana County Transit Authority

01:15 - 40.001 who has and there's some they are amicus in this case has an operating budget

01:15 - 44.706 of essentially, I think 5.2 million and a rider,

01:15 - 48.510 number of riders is about 240,000.

01:15 - 51.546 This kind of $7 million verdict

01:15 - 54.550 would is existential to them.

01:15 - 58.053 Should the trial judge take that into consideration,

01:15 - 03.125 the health of the defendant, which would be curious

01:16 - 07.495 in a constitutional analysis,

01:16 - 11.199 and gets into that weighing of the public interests

01:16 - 15.203 that the legislature is best equipped to do?

01:16 - 18.507 It could easily be a

01:16 - 22.677 Philadelphia school district bus.

01:16 - 24.979 Again, another amicus,

01:16 - 27.983 they said that that would be the equivalent

01:16 - 31.486 of 84 teachers.

01:16 - 34.021 Or it could cause the interceptor

01:16 - 37.025 to be less negligent.

01:16 - 41.697 Well, Your Honor, those type of verdict

01:16 - 45.534 for organizations and businesses to reevaluate

01:16 - 49.671 for for businesses, your honor,

01:16 - 54.241 they either go out of business and it hurts their shareholders.

01:16 - 56.110 It hurts their their owners.

01:16 - 58.646 It hurts their employees and maybe customers.

01:16 - 01.215 Catastrophic case.

01:17 - 05.621 So flick involved, I believe 20 students, $14 million.

01:17 - 09.090 The result of that is

01:17 - 10.725 students or.

01:17 - 14.963 Right, citizens who depend upon the public transportation.

01:17 - 17.031 You're right.

01:17 - 19.400 Obviously,

01:17 - 22.404 any kind of cap,

01:17 - 24.605 well, any kind of damage.

01:17 - 26.340 Let me put it that way.

01:17 - 30.878 Should put in mind the idea that you want to limit damages.

01:17 - 33.814 Who has to protect the public purse?

01:17 - 36.818 I don't think that

01:17 - 42.357 if the legislature raised it from 250,000 to 1 million, it would,

01:17 - 47.162 Septa would say, oh, well, we can't be reckless anymore.

01:17 - 50.498 These are accidents by definition.

01:17 - 53.635 That are unplanned.

01:17 - 58.974 So again, we get back into a balancing test.

01:18 - 03.679 On one hand is recovery for,

01:18 - 07.248 parties, whether catastrophic or otherwise,

01:18 - 10.318 who are injured by Commonwealth and municipal employees.

01:18 - 15.891 And on the other hand, is preservation of the public, fisc.

01:18 - 19.494 And so when we get into severability,

01:18 - 23.364 and again, I believe that this court has said in many cases that kind

01:18 - 28.470 of balancing a public interest is best done, by the legislature.

01:18 - 31.740 I think it was, yeah, richly versus

01:18 - 35.876 North Penn School District, which said that when the scale is weighted

01:18 - 40.348 on both sides with legitimate interests, this recognition should end the inquiry.

01:18 - 44.619 So let's talk about severability in this case.

01:18 - 46.188 And that

01:18 - 49.290 would be again, I'm not sure what the number is.

01:18 - 52.461 I'm not sure what the test is, but I suppose the question

01:18 - 56.063 posed to this court is

01:18 - 59.401 if you strike down the cap,

01:19 - 03.472 must you also strike down the waiver?

01:19 - 05.439 Now we recognize that.

01:19 - 08.309 Are there ten waivers under the Sovereign Immunity Act?

01:19 - 12.647 And the 10th one dealing with sexual abuse has no cap.

01:19 - 15.983 So it wouldn't make any sense

01:19 - 19.921 in our minds to necessarily, strike that one.

01:19 - 24.225 And again, it depends on what kind of order this court issues

01:19 - 27.229 or what kind of rule this court issues as to whether

01:19 - 32.166 like, I suppose if it's an as applied case, only apply to Miss Freilich.

01:19 - 35.202 We would be dealing with the first waiver of sovereign immunity, which

01:19 - 36.805 is, vehicle liability.

01:19 - 40.274 But.

01:19 - 43.711 When looking at whether the one of the two exceptions

01:19 - 45.780 to the general presumption of severability

01:19 - 50.151 applies, the touchstone is this court has said, is legislative intent.

01:19 - 53.420 And I think the clearest legislative intent

01:19 - 59.026 is actually the language of 8522 A, which says that the General Assembly,

01:19 - 03.030 pursuant to section 11 of article one of the Constitution of Pennsylvania,

01:20 - 07.102 does hereby waive in the instance set forth and subject section

01:20 - 10.604 B, those are the, enumerated exceptions only

01:20 - 14.643 and only to the extent set forth in this subchapter

01:20 - 17.712 and within the limits set forth in section

01:20 - 20.848 8528, which is the statutory cap.

01:20 - 24.519 So in writing this statute, the General Assembly said, yes,

01:20 - 27.556 we waive, but only

01:20 - 33.028 within the limits set forth in section 8528.

01:20 - 36.064 So if this court were to hold that

01:20 - 40.535 the caps in 8528 must fall,

01:20 - 45.240 this waiver must fall with it as well,

01:20 - 48.509 because they are

01:20 - 50.845 inextricably intertwined.

01:20 - 53.882 And in our brief, we talk about the history.

01:20 - 57.385 We talk about,

01:20 - 01.790 the Joint Commission and I believe 1978,

01:21 - 05.326 or thereabouts.

01:21 - 08.363 And I think it is relevant that

01:21 - 13.300 when in my league, when this court struck down common law sovereign immunity,

01:21 - 16.638 it took two months for the General Assembly to reassert

01:21 - 20.141 that immunity in.

01:21 - 22.810 Was it one

01:21 - 26.146 2310 152 act

01:21 - 29.751 152 of 1978 Carroll versus County of York.

01:21 - 31.919 It was Carroll versus County of York.

01:21 - 34.622 That was the first case, wasn't it?

01:21 - 36.790 Yes. Afterwards. You afterwards.

01:21 - 39.526 You're talking about section 2310.

01:21 - 40.395 Yes. 2310.

01:21 - 41.929 Yes. That's exactly right, your Honor.

01:21 - 43.764 I apologize for the confusion.

01:21 - 47.769 Which was, passed.

01:21 - 52.039 Well, it was enacted and, signed by Governor Sharpe, on September

01:21 - 55.676 28th, 1978, a reason that a date that sticks in my mind

01:21 - 57.278 because it's the day I was born.

01:21 - 02.417 So for my entire lifetime, the General Assembly has,

01:22 - 08.122 made it its express intent that there be sovereign immunity.

01:22 - 11.091 Now, that's again act 152.

01:22 - 14.461 Act 142 of 1980

01:22 - 19.501 was the codification of Sovereign Immunity Act

01:22 - 22.771 and the Torts Claim Act, which sets the waivers

01:22 - 26.107 and also, set the caps.

01:22 - 31.512 So it is our position, and I think it is the only fair

01:22 - 34.516 reading of not only,

01:22 - 39.120 yeah, 8522 A but also the history

01:22 - 42.323 that should this court on an as apply

01:22 - 45.327 basis, whatever that means.

01:22 - 49.430 Feel the need to sever the, damage cap.

01:22 - 52.701 It would also need to sever that waiver as applied to me

01:22 - 57.572 so as, to have no,

01:22 - 01.675 no waiver of sovereign immunity in this context,

01:23 - 03.811 because the General Assembly would not have wanted

01:23 - 07.048 to waive sovereign immunity if it was going to be unlimited.

01:23 - 09.617 If the

01:23 - 13.321 court doesn't have any questions, I stand on our briefs.

01:23 - 14.556 All right. Thank you.

01:23 - 15.123 Well done.

01:23 - 19.127 And may I just compliment again all counsel on your oral arguments

01:23 - 21.662 and also on the quality of the briefing.

01:23 - 24.498 In this case it was extraordinary along with them.

01:23 - 27.334 Keep briefing. So thank you for all that input.

01:23 - 30.338 We will take it under advisement. Thank you.

01:23 - 32.906 Commonwealth versus Sanchez.

01:23 - 35.776 This is an appeal from a criminal conviction for murder

01:23 - 41.583 that resulted in a death sentence in 2008, following a jury trial in Bucks County,

01:23 - 45.720 Alfonzo Sanchez was convicted of two counts of first degree murder

01:23 - 49.556 and attempted homicide and sentenced to death for the shooting.

01:23 - 54.662 Death of Mendez Thomas and Luis Diaz and the attempted murder of Jess Carmona.

01:23 - 58.632 Sanchez appealed, and the Supreme Court affirmed the decision.

01:23 - 00.501 In 2014.

01:24 - 04.506 In 2015, Sanchez filed a post-conviction relief petition

01:24 - 08.576 arguing that the Commonwealth failed to disclose a DNA report

01:24 - 12.914 containing evidence that would implicate Sanchez's codefendant.

01:24 - 17.552 The Commonwealth agreed to vacate the sentence and remand for a new trial

01:24 - 21.255 between 2015 and 2022.

01:24 - 24.259 Sanchez filed various motions challenging his conviction

01:24 - 29.364 after Sanchez exhausted his appeals to the superior Court and Supreme Court.

01:24 - 33.935 The matter was scheduled for a new trial in April 2023

01:24 - 36.570 and 2021.

01:24 - 40.108 While awaiting retrial in the Bucks County Correctional Facility.

01:24 - 45.113 Sanchez was arrested and charged with solicitation to commit homicide

01:24 - 49.983 and related offenses arising from his efforts to have the witness,

01:24 - 54.456 Jess Carmona, killed to prevent her from testifying at the retrial.

01:24 - 59.226 The Commonwealth moved to consolidate the trial of the 2021

01:24 - 03.765 solicitation case, with the retrial of the 2008 homicide.

01:25 - 09.604 The trial court granted consolidation and the two cases proceeded to trial in 2023.

01:25 - 14.142 The jury returned a guilty verdict incentive Sanchez to death

01:25 - 17.144 for the murder of Diaz, and consecutive life

01:25 - 20.148 sentences for the murder of Thomas.

01:25 - 24.118 In this appeal to the Pennsylvania Supreme Court, Sanchez challenges

01:25 - 29.157 both the guilt phase and the penalty phase of his conviction on the guilt phase.

01:25 - 34.161 Sanchez argues that the trial court aired by consolidating the two cases

01:25 - 37.932 against him, homicide and solicitation to commit murder.

01:25 - 42.770 He also argues that there was insufficient evidence to support the convictions.

01:25 - 45.772 After the penalty phase,

01:25 - 49.409 Sanchez argues, among other things, that the court aired

01:25 - 54.616 when it failed to permit argument to the jury on case specific mitigation.

01:25 - 58.919 Sanchez also argues that the court aired and striking the defendant's

01:25 - 02.489 opening statement and that it aired, and limiting the defense's

01:26 - 05.493 argument to the jury during the penalty phase.

01:26 - 07.594 Finally, Sanchez argues

01:26 - 10.765 that the trial court aired and its instructions to the jury.

01:26 - 14.469 Sanchez asked the court to vacate his death sentence,

01:26 - 17.804 vacate the convictions, and send the case back

01:26 - 20.808 to the trial court for a new trial.

01:26 - 23.810 The Commonwealth argues that the trial court did not error

01:26 - 28.182 in consolidating the two cases, because the subject of the solicitation

01:26 - 32.053 case was to be a witness at Sanchez's upcoming trial,

01:26 - 36.658 and the two crimes were therefore part of a single criminal act or transaction.

01:26 - 40.862 The Commonwealth further argues that the trial court did not air

01:26 - 45.599 and precluding mitigation evidence, because the defendant expressly directed

01:26 - 50.672 his counsel not to present evidence or argue in favor of mitigation.

01:26 - 54.541 Finally, the Commonwealth argues that the evidence supporting

01:26 - 59.314 Sanchez conviction was overwhelming and supported the jury's verdict.

01:27 - 01.682 Good morning, justices.

01:27 - 02.550 May it please the court.

01:27 - 03.951 My name is Niels Erickson.

01:27 - 06.253 I am the attorney for Mr. Sanchez.

01:27 - 09.089 I am also the chief public defender for Bucks County.

01:27 - 12.526 Chief Justice, while I agree that all of the issues that we raised in

01:27 - 14.461 our brief are significant.

01:27 - 17.364 I want to focus my time this morning solely on the death

01:27 - 18.532 penalty in the capital.

01:27 - 20.634 Mitigation issues, if I'm right.

01:27 - 24.771 It is our opinion that there were three critical errors that were committed

01:27 - 28.743 by the trial court in this case that require a new penalty phase hearing.

01:27 - 33.847 First, he was denied the opportunity to argue mitigation evidence

01:27 - 38.119 that already existed in the case from the guilt trial portion of the case.

01:27 - 41.054 Second, he was denied the

01:27 - 45.525 ability to have the ET aggravated the catch all mitigating.

01:27 - 46.194 I'm sorry, catch all.

01:27 - 49.930 Mitigating, that any evidence of mitigation,

01:27 - 51.265 including the character

01:27 - 54.302 record of the defendant and the circumstances of the offense,

01:27 - 59.507 and third, the jury instructions that were provided,

01:27 - 03.144 telling the jury that there was no mitigation in this case,

01:28 - 04.911 as well as telling the jury

01:28 - 08.882 that ordinarily I would tell you to weigh aggravating versus

01:28 - 12.887 mitigating circumstances, but that does not apply now.

01:28 - 16.257 I believe that was an uncosted notional jury charge.

01:28 - 19.092 Why did the guilt phase and the

01:28 - 22.096 and the penalty phase are different in that regard?

01:28 - 22.864 I'm sorry.

01:28 - 25.867 Waiver waiver of the mitigation

01:28 - 29.637 in the guilt phase and in the penalty phase should be treated differently.

01:28 - 34.041 No. Well, no, I recognize

01:28 - 37.211 that that my client was his own worst enemy in this case.

01:28 - 40.847 The concern that I have and the argument that I make is,

01:28 - 45.652 is that the trial court conflated waiving of mitigation evidence

01:28 - 50.792 with waiving of any argument by me as his counsel for a life sentence.

01:28 - 53.327 So what what are you specifically talking about?

01:28 - 57.264 There was certain evidence that came out during the actual guilt or innocence phase

01:28 - 01.968 one trial itself, such as intoxication, age, a number of other factors.

01:29 - 04.271 Correct. And I listed one page 50 am I correct?

01:29 - 07.140 So we get to the actual penalty phase.

01:29 - 10.311 The defendant stands up and says I don't want to present mitigation.

01:29 - 11.778 All right.

01:29 - 15.650 At that point, Judge Rubenstein then prevents defense counsel from arguing

01:29 - 19.820 those mitigation factors that came out during the course of the trial,

01:29 - 22.890 and it gives the jury instructions, said there is no mitigation, which is

01:29 - 24.091 essentially

01:29 - 25.826 a death sentence.

01:29 - 26.561 Absolutely correct.

01:29 - 28.495 And that's your argument

01:29 - 31.932 that even if my client wants to make the wrong decision of saying,

01:29 - 36.403 I don't want the presentation of mitigation evidence, which under

01:29 - 41.275 Sam and Pisgah and rigor and Telford, is his right to do,

01:29 - 46.380 I should still, as his counsel, be able to argue for a life sentence.

01:29 - 49.384 Well, in essence, this defendant,

01:29 - 53.587 at some point decided he wanted to be put to death.

01:29 - 56.490 And then he changed his mind.

01:29 - 59.827 No, those are the well, no.

01:30 - 02.830 In the pcori

01:30 - 06.233 context, this case is unique, and I believe it's a first impression

01:30 - 09.369 in that most of the cases that this court has decided.

01:30 - 10.437 Rigor, rigor.

01:30 - 15.142 Sam Puskar Telford were always in the PCR, a context

01:30 - 18.946 where at trial the trial court said fine, no mitigation evidence.

01:30 - 20.881 Rigor is one of my

01:30 - 24.919 I hate to say this, but favorite ones because rigor says are you all you want?

01:30 - 27.287 Just don't talk about a psychologist.

01:30 - 29.623 I don't want to talk about the psychological issues

01:30 - 32.627 and don't put my mother on the team but would have their child.

01:30 - 35.362 This court said, hey, he made a choice.

01:30 - 39.934 He didn't want this mitigation evidence, but he wanted other mitigation evidence.

01:30 - 43.771 The attorneys argued the mitigation that he had

01:30 - 47.408 and then the death sentence was was, issued.

01:30 - 49.076 But I'm

01:30 - 52.145 coming to you directly from the trial court where I was trying

01:30 - 56.217 to argue mitigation evidence that the transcript is a heck of a read.

01:30 - 59.520 In this case, that should have been presented.

01:30 - 02.789 Counsel, just so we're clear, the defendant didn't say you want to be

01:31 - 03.357 put to death.

01:31 - 06.360 He told the judge, I just want the jury to follow the law.

01:31 - 07.195 Correct. Now.

01:31 - 09.629 So it wasn't like he said, I want to be put to death.

01:31 - 10.864 Tell them to put to death.

01:31 - 13.868 There is no mitigation.

01:31 - 17.738 Yes or no?

01:31 - 20.674 You know, there's a no piece to that.

01:31 - 21.542 You want to argue that?

01:31 - 24.545 Yes. He says, I want them to follow the law

01:31 - 27.113 to which Judge Rubenstein and Mr.

01:31 - 29.082 Sanchez then engage in a hypothetical.

01:31 - 30.684 What do you think that means?

01:31 - 32.686 And he says, well, it could be death.

01:31 - 34.187 And is that what you want?

01:31 - 35.388 Well, if the following.

01:31 - 38.192 The law means death, then it's death. My,

01:31 - 40.594 But that's not me.

01:31 - 41.162 I understand you're

01:31 - 45.398 trying to recall the exchange, but I'm not sure it was a hypothetical,

01:31 - 46.100 the court said.

01:31 - 49.103 And what would that be in your opinion?

01:31 - 52.839 The defendant, as far as you know, taking it from you

01:31 - 55.742 and you know, the facts of the case and the sentence should be death.

01:31 - 56.644 That's the law.

01:31 - 58.612 So let it be the court.

01:31 - 00.480 Do you believe that should be the outcome?

01:32 - 03.484 The defendant? I believe that, yes.

01:32 - 05.051 We'll have a full inquiry.

01:32 - 08.755 You're choosing to at least in this in the hypothetical, which I guess

01:32 - 12.092 is where you got the hypothetical language from being executed

01:32 - 15.695 rather than having a chance to serve out your term as a life prisoner.

01:32 - 18.665 Correct. Defendant. Yep. Yes.

01:32 - 20.634 That is absolutely correct. As far as which.

01:32 - 26.474 So how is that not him basically saying, I'm ready to go sentence me to death.

01:32 - 27.842 Let's get on with this.

01:32 - 29.877 I mean,

01:32 - 33.413 I don't believe that this court wants a sentencing structure

01:32 - 36.316 in which the defendant can lead to a death sentence.

01:32 - 40.887 I believe, as I presented in the mechanics, that there are greater

01:32 - 43.925 societal interests at stake when the issue is

01:32 - 47.295 sentence of life or death,

01:32 - 48.129 line up.

01:32 - 52.433 But this question we're here is whether whether your client waived

01:32 - 55.435 making

01:32 - 58.939 making a mitigation argument versus presenting mitigation evidence.

01:32 - 01.141 You're suggesting your argument is

01:33 - 04.711 he waived mitigation eg evidence that the penalty phase.

01:33 - 09.283 But in no way did he intend to waive me arguing mitigation against death penalty.

01:33 - 11.785 Yes. One I agree because it was never asked of him.

01:33 - 14.789 Do you waive mitigation or do you have any argument by your counsel?

01:33 - 20.327 And number two, I believe that even him suggesting that I should have the right to

01:33 - 25.165 waive is not something that this court should, find as proper in this case.

01:33 - 29.170 So you're asking us to issue a ruling that says that a defendant convicted

01:33 - 35.009 of first degree murder cannot waive mitigation and agree to the death penalty.

01:33 - 38.311 He can waive mitigation in the case law.

01:33 - 41.782 As much as I disagree with it stands for the fact that I believe his attorney

01:33 - 45.085 can still argue for a life sentence and should be allowed to use.

01:33 - 47.787 What if he doesn't want a life sentence?

01:33 - 51.325 I don't believe that we should allow a defendant to plead to death.

01:33 - 55.863 Okay, I believe that there is a greater societal interest in having.

01:33 - 58.531 But who are you as defense counsel? If your client goes to you

01:33 - 00.700 and says, I don't I don't disagree with you, by the way.

01:34 - 02.068 I think conceptually I'm right.

01:34 - 04.971 But from a jurisprudential perspective,

01:34 - 08.175 your you represent your client, you don't represent society.

01:34 - 12.713 And your client says to you, shut up, sit down.

01:34 - 15.515 I don't want you arguing for life.

01:34 - 18.084 They're going to put me to death and I'm good with it.

01:34 - 21.689 Are you saying you can override that out of some societal interest?

01:34 - 24.058 Yes, I believe I.

01:34 - 26.626 It doesn't matter.

01:34 - 27.927 And I don't mean to be flipping.

01:34 - 30.096 I'm going to try and say this is the simplest way possible.

01:34 - 33.100 It doesn't matter what my client thinks.

01:34 - 38.371 The evidence and the verdict should be as to sentence no more than it does.

01:34 - 41.342 And there's a line of cases boses versus versus Oklahoma.

01:34 - 43.443 Both versus Maryland.

01:34 - 47.280 The Commonwealth can't put on a paper to say this is horrible.

01:34 - 50.250 And in my opinion, jury, he should get death.

01:34 - 53.553 They can't put on a detective to say, this is horrible.

01:34 - 56.356 And jury, in my opinion, he should get death.

01:34 - 00.394 I can't put on my client's family to say he.

01:35 - 01.529 This is horrible.

01:35 - 04.330 What happened? But the verdict should be life.

01:35 - 08.469 I can't put my client on to tell the jury what he thinks the verdict should be.

01:35 - 09.437 That's.

01:35 - 10.737 That's irrelevant

01:35 - 14.808 to the jury's analysis of weighing, mitigating and aggravating factors.

01:35 - 15.842 That's not what I asked you.

01:35 - 20.548 I asked you can you, during the penalty phase, can your client can a client

01:35 - 24.350 instruct his or her lawyer

01:35 - 27.354 to sit down and not address the jury?

01:35 - 30.791 I don't believe that that's part of the fundamental rights analysis under,

01:35 - 35.429 Mason, under, McCoy versus Louisiana.

01:35 - 37.697 I don't believe that that's part of the fundamental rights.

01:35 - 41.702 What my say is your client chooses death as opposed to

01:35 - 46.940 maybe the cruel and unusual punishment of isolation in death row.

01:35 - 50.143 What gives you the right to tell him

01:35 - 53.147 what's best for him

01:35 - 56.316 when he's telling you as counsel?

01:35 - 57.251 Don't argue.

01:35 - 58.085 I want to die.

01:35 - 01.889 I don't want to spend 22 years locked up 23 hours a day.

01:36 - 02.757 Well, counsel,

01:36 - 05.458 let me reframe your argument a second, because I think we're going off

01:36 - 06.127 a far afield.

01:36 - 08.862 I don't mean interrupt, but we're framing this.

01:36 - 12.632 Or at least some members of my colleagues up here are framing this as a defendant.

01:36 - 13.501 Right.

01:36 - 16.369 Doesn't a jury have a right to hear all of the factors

01:36 - 19.272 at its disposal before it renders a decision?

01:36 - 20.174 In other words,

01:36 - 24.410 if the Commonwealth is going to prevent present aggravating circumstances,

01:36 - 28.681 and if there are mitigating circumstances before a jury actually makes

01:36 - 32.553 that ultimate decision, doesn't the jury have a right under our jurisprudence

01:36 - 36.157 to hear all of the factors that are necessary that go into its decision?

01:36 - 37.625 In other words,

01:36 - 40.628 we don't want the jurors, 5 or 6 years later, coming back and saying, gee,

01:36 - 42.362 if I had known of

01:36 - 46.100 mitigation factor A, B, C, and D, I never would have given a death penalty.

01:36 - 47.301 So isn't that

01:36 - 50.704 can we couch that as a, as a societal right, or at least a jury right?

01:36 - 53.373 I would agree with you, which is why I suggested in the brief

01:36 - 57.945 that this course court should give some consideration to that long list of cases.

01:36 - 01.114 I don't think they're going away, considering,

01:37 - 05.351 the nature of the death penalty in this Commonwealth as well as defendants

01:37 - 07.153 realizing that nobody's being executed,

01:37 - 10.224 I think we're going to see more of these waiver of mitigation issues.

01:37 - 12.425 It is supposed to be

01:37 - 15.830 the decision of the jury if, based upon the evidence presented,

01:37 - 20.266 and it's up to the defense or the defendant to introduce

01:37 - 23.503 or not introduce evidence for the jury to consider, it's

01:37 - 27.574 really not the jury's business as to learn about evidence

01:37 - 31.411 that a party chooses not to submit to the trial.

01:37 - 34.415 I just I'm conflicted with both.

01:37 - 38.685 Justice McCaffery, thank you for your response to that question.

01:37 - 42.456 As the jury shoot from a defense's adoption

01:37 - 45.692 or knowledge adoption of evidence relative

01:37 - 49.596 to the outcome of just stocker t, your position

01:37 - 53.634 is the current state of Pennsylvania law I happen to agree with with Jack.

01:37 - 57.237 I'm sorry, judge justice McCaffrey's hypothetical is the other Irish,

01:37 - 00.708 which the other Irish guy up here here with me or to stand out.

01:38 - 03.710 What makes the jury have stronger rights?

01:38 - 08.181 If I understand evidence that the defense which does or the defendant

01:38 - 09.483 does not wish to be a victim

01:38 - 13.787 here again, it goes back to the mechanic case where there's a greater

01:38 - 17.590 waiver is wonderful, except that there are times when the issues,

01:38 - 21.762 the interests of society over place would be your clients and company,

01:38 - 27.800 or if your time is temporarily is saved, not if the client knowingly, willingly

01:38 - 31.138 and publicly tells counsel, I don't want that in there.

01:38 - 32.373 Now that's what that.

01:38 - 37.310 But that's not what this court held in McKenna in 1978.

01:38 - 40.314 If I, if I remember correctly, in that,

01:38 - 44.084 McKenna had been convicted and sentenced to die under the old

01:38 - 47.688 death penalty statute, the Supreme Court,

01:38 - 51.391 United States found that that statute and many others were unconstitutional.

01:38 - 56.729 And so all of the defendants then went to, appeal their sentences.

01:38 - 58.998 And McKenna says, nope, I'm good. I'm not going to.

01:38 - 00.333 I want to die.

01:39 - 04.705 I'm not going to appeal what has been clearly determined to be unconstitutional.

01:39 - 08.942 And and I forget the procedural, how it came about,

01:39 - 12.146 that it actually got in front of the supreme of this court.

01:39 - 16.750 But this court said he may prefer death and that may be his genuine interest.

01:39 - 21.588 But waiver was never intended to be a means of choosing your own sentence.

01:39 - 25.758 Societal interest in justice always outweigh or outweighs

01:39 - 27.293 the defendant's interest.

01:39 - 31.231 The standards in which this death sentence or life sentence are set

01:39 - 34.334 must be beyond reproach.

01:39 - 36.970 That's the words of this court in the mechanic case.

01:39 - 41.107 So there is a greater societal, societal interest that we have to be

01:39 - 46.079 as a society, confident that the standards used to find a death sentence

01:39 - 50.583 for someone are beyond reproach, which is not did not happen in this case.

01:39 - 53.353 Counsel, I'm trying to understand, though, what actually happened in this case.

01:39 - 56.357 Did you make these arguments to the trial court judge?

01:39 - 00.794 I'm sorry, did you make this particular greater societal argument with the

01:40 - 02.396 judge?

01:40 - 02.763 Judge?

01:40 - 05.465 You know, I know my client doesn't want to talk about mitigation,

01:40 - 09.235 but there's just general societal interest that I need to inform the jury of.

01:40 - 14.041 And you need to let me riff and go off and and go on this, and we'll just.

01:40 - 15.709 He's fine.

01:40 - 17.210 And I mean, did you make that argument?

01:40 - 20.246 I thought we were here simply because the question was, did your client

01:40 - 24.018 waive new evidence or waive mitigation argument entirely?

01:40 - 26.819 Did my client waive mitigation evidence?

01:40 - 28.021 I believe the answer is yes.

01:40 - 29.555 Under the current state of the law,

01:40 - 32.325 the colloquy as found in sand was followed.

01:40 - 32.526 Right?

01:40 - 36.095 My position is he did not waive, nor should he have waived or nor

01:40 - 39.099 can he waive the mitigation argument by his counsel. Why?

01:40 - 42.336 Okay, so so so I don't remember the part.

01:40 - 47.373 I remember the part in your briefs about, he didn't waive at the trial court Aird

01:40 - 50.610 by saying by waiving the evidence, he waived me from being able

01:40 - 52.845 to argue the evidence that was already in the record.

01:40 - 55.682 I don't remember you saying that he can't

01:40 - 57.651 waive that.

01:40 - 59.352 There's some rule against waiver.

01:40 - 03.389 I don't think my argument was as nuanced that that was more than than it is today.

01:41 - 04.824 Correct. Okay.

01:41 - 09.096 But I did raise the fact I in day two that morning when we came back

01:41 - 12.965 after, and I raised the arguments that following morning saying

01:41 - 14.067 that my client did,

01:41 - 17.704 I have the right to still argue the mitigation that's in this case.

01:41 - 18.272 But you were

01:41 - 21.507 you were raising that as your client has the right to make those arguments.

01:41 - 23.009 Now you have some individual vest.

01:41 - 24.577 Oh no no no no. Correct. Yeah. Right.

01:41 - 28.581 So the issue really the only issue before us is not your the societal question

01:41 - 31.250 that justice McCaffrey was pointing or that you were responding to.

01:41 - 33.419 It's simply looking at the record.

01:41 - 36.756 Did your client waive the ability to make a mitigation

01:41 - 40.694 argument based on evidence incorporated, from the guilt phase?

01:41 - 42.095 Well, two arguments that,

01:41 - 45.898 number one, I don't believe that question was ever asked of the of the defendant.

01:41 - 47.333 So I would say that he did not wait.

01:41 - 49.402 And you're giving me the answers. I'm just saying, is that the issue.

01:41 - 51.504 Correct. Well, that's the issue. Well, there's lots of issues.

01:41 - 55.042 But as to I think but isn't that outcome determinative?

01:41 - 57.977 Isn't that answer outcome determined?

01:41 - 01.247 I mean, that's why I mean, I understand your societal interest points

01:42 - 03.483 and everything else that we've talked about.

01:42 - 07.053 And I think the trial judge did an excellent job.

01:42 - 11.324 I think the trial judge did the very best to get everything on the record

01:42 - 14.427 that was required, including having your client meet

01:42 - 17.431 with the witnesses who were there to testify.

01:42 - 21.235 But as I read the, colloquy,

01:42 - 24.738 I didn't see it to encompass that latter point.

01:42 - 29.977 Was he aware that he there was evidence that was already on the record.

01:42 - 33.279 He was going to have to put his family members to the task of appearing

01:42 - 36.850 and saying good or bad things about he and his life and family.

01:42 - 41.220 But which did he waive the right to have?

01:42 - 46.526 The existing evidence argued on his behalf as mitigation?

01:42 - 48.728 And I don't think he waive that.

01:42 - 50.296 I mean, correct me if I'm wrong.

01:42 - 52.465 I agree with you, Justice Donahue. He did not.

01:42 - 55.001 Those questions were not asked to the extent.

01:42 - 59.106 Was this a satisfactory colloquy for waiving mitigation evidence? Yes.

01:42 - 00.140 To the extent.

01:43 - 04.011 Was this a sufficient colloquy that this short this court should be satisfied

01:43 - 08.048 he waived any argument for a life sentence with the issues? No.

01:43 - 10.349 But we back to your original question.

01:43 - 13.786 I believe this is the gatekeeping issue that I don't get to those other issues

01:43 - 16.155 that I'm arguing if I don't win this issue,

01:43 - 19.560 if this court feels he waived everything, I'm dead. No.

01:43 - 23.730 But I'm confused then, because if, as Justice Donohue phrased it,

01:43 - 28.901 and that's a good approach, that the question is whether he specifically

01:43 - 34.240 waived the right to have mitigation type testimony that already existed

01:43 - 39.680 in the guilt phase, argued and presented is as argument in the penalty phase.

01:43 - 45.785 That wasn't how it was sliced and presented at the trial court, was it?

01:43 - 49.188 Was that how you presented it as a as an issue?

01:43 - 50.990 And was that in fact waived?

01:43 - 52.291 I made the argument

01:43 - 56.096 that I should be able to argue mitigation that already exists in the case.

01:43 - 59.666 I agree with Justice Donohue that the trial court,

01:43 - 03.403 under the circumstances, I think all counsel did an excellent job.

01:44 - 07.473 But I don't know that Justice Rubinstein was hearing what I was arguing.

01:44 - 09.208 I'm not saying that correctly.

01:44 - 13.279 Was not he saw it as waived, therefore game over.

01:44 - 15.815 I thought it was more nuanced than I could.

01:44 - 17.183 I could see how that would happen

01:44 - 20.987 given the length of time and effort that was put into the colloquy.

01:44 - 24.390 But as I recall, as I recall, the,

01:44 - 28.894 request that was made is to argue evidence

01:44 - 32.933 already of record correct and support of mitigation.

01:44 - 40.306 He said, no, not that part of the mitigation that your client was waiving.

01:44 - 43.843 I didn't see that anywhere in the colloquy.

01:44 - 44.745 You're absolutely correct.

01:44 - 46.212 It does not appear in the colloquy.

01:44 - 48.147 I'm so he wasn't colloquy about that.

01:44 - 50.283 He wasn't colloquy about the specific information

01:44 - 51.751 that came out during the course of the trial

01:44 - 55.222 and said, you can present this evidence to the jury as mitigation.

01:44 - 57.623 He was just foreclosed by Judge Rubinstein.

01:44 - 58.891 Decision. Correct.

01:44 - 02.012 So I just want to be clear, and I think the record's pretty clear on this, too.

01:45 - 03.162 There was a colloquy.

01:45 - 06.799 You asked about presenting the mitigation evidence that came out,

01:45 - 09.135 which is set forth on page 50, your, your,

01:45 - 12.405 your brief, which is use of the appellant, alcohol, drug

01:45 - 16.109 intoxication, homicide occurred during the drug deal, etc., etc., etc.

01:45 - 19.145 The evidence that he was,

01:45 - 23.215 for lack of a better expression, objecting to, had to do with his childhood

01:45 - 26.420 and he didn't want to put his mother on correct or correct.

01:45 - 28.821 But at no point did he ever say by the way,

01:45 - 30.923 I don't want you to present that evidence that was presented

01:45 - 33.659 during the course of the trial as mitigation. Correct.

01:45 - 36.462 So what we're talking about here is a court assisted suicide, right?

01:45 - 37.797 Correct. I agree with you.

01:45 - 41.401 Yes. As Justice Marshall would say, counsel, can I can I just

01:45 - 45.472 what let's say we agree with you.

01:45 - 49.508 Let's say let's say the trial court errored by not allowing you to because

01:45 - 53.513 I think the Commonwealth incorporated the record from the, guilt phase

01:45 - 55.848 and into the penalty phase. Right.

01:45 - 58.852 So, so that by the time you stood up, the record was there.

01:45 - 03.255 And let's say looking at the record, it doesn't appear that

01:46 - 06.560 there was a waiver specific as to make the argument on evidence already there.

01:46 - 09.662 What does that mean?

01:46 - 12.064 There's the what is what is the remedy?

01:46 - 15.635 The remedy to go back for another penalty phase or your regular rent

01:46 - 16.902 money would be to go back if.

01:46 - 19.839 Well, I have other issues that I'm relying on my brief on.

01:46 - 21.907 Let's say that's the only one you went on then. Yes.

01:46 - 25.344 The remedy is a new penalty phase hearing, in which the Commonwealth

01:46 - 28.681 will present the aggravating circumstances and the defendant can waive

01:46 - 30.683 and they can present the evidence that was in the record.

01:46 - 33.853 Or do we have to have a whole nother trial on guilt phase?

01:46 - 35.321 That would be a discussion

01:46 - 38.591 between whoever is the district attorney and the counsel for Mr.

01:46 - 40.760 Sanchez at the time of that resentencing.

01:46 - 43.196 But, you know, the remedy would be a resentencing,

01:46 - 47.133 not a retrial, but just a resentencing.

01:46 - 50.669 Well, the I'm sorry, no penalty phase trial.

01:46 - 52.138 That's what you want, right?

01:46 - 55.841 You want the hearing on the on the penalty phase.

01:46 - 58.845 You want that to if you're going to get a new jury, right.

01:46 - 01.180 You're not going to bring back the same jury, right? Correct.

01:47 - 02.381 So you get a new jury.

01:47 - 05.518 My question is is is a is

01:47 - 10.089 the transcript did record of the previous trial adequate in a penalty

01:47 - 13.292 phase trial alone, or will this new jury

01:47 - 16.897 be entitled to hear live witnesses.

01:47 - 20.233 And that changes the question that's before us.

01:47 - 24.270 Is he allowed should he have been allowed to argue mitigation evidence

01:47 - 25.771 that was already presented?

01:47 - 27.473 What was the same jury? I think that, wasn't it.

01:47 - 28.442 Yeah. Well, yeah.

01:47 - 32.478 But I mean, if we rule on that basis and he gets a new trial and presents

01:47 - 34.780 new evidence, that's a whole different ballgame,

01:47 - 37.183 they would have to be a new jury sworn and the Commonwealth

01:47 - 39.685 would have the choice, frankly. And and how they want to present their case.

01:47 - 40.853 Do they want to present it

01:47 - 43.856 by offering a stipulation to the, to the trial testimony,

01:47 - 45.458 or that they want to present it through live with?

01:47 - 48.499 I guess probably the more important question would be, would your client want

01:47 - 52.398 to allow stipulation of the prior record cold to the new jury?

01:47 - 52.866 I don't know.

01:47 - 54.600 I'm not going to speculate

01:47 - 57.571 what my client's thinking is going to be at this point in time.

01:47 - 01.942 There is a lot I could that that's one of my concerns that

01:48 - 05.277 that I hope that this court, regardless of what you decide in this case,

01:48 - 06.846 will provide some clear guidance

01:48 - 10.916 because given the status of the moratorium, it's on.

01:48 - 15.354 It's off, given the status of Pennsylvania has not executed, other than,

01:48 - 20.926 somebody in 1999, there is there is a real temptation

01:48 - 24.464 to mess around and find out on behalf of, of these defendants.

01:48 - 26.732 And I think that was what was going on.

01:48 - 27.634 Here is the only thing.

01:48 - 32.239 And the trial court picked up on it some of its, statements.

01:48 - 35.407 The only thing he can control at this point is, is,

01:48 - 38.411 you know, he's trying to control what the only thing that he can control.

01:48 - 40.813 So I hope that this court will give some guidance

01:48 - 44.416 as to how this procedure should be played out along this line.

01:48 - 45.751 I just have one quick question.

01:48 - 49.522 After the guilt phase and prior to the penalty phase,

01:48 - 53.726 when the trial court was counseling your client, didn't

01:48 - 57.496 he make it clear that if you got up and made any presentation to the jury

01:48 - 01.635 with regard to, mitigation factors

01:49 - 05.071 that he was going to get up and,

01:49 - 10.043 testify to counter, contradict

01:49 - 11.745 whatever

01:49 - 14.748 was told to the jury with regard to mitigation.

01:49 - 18.717 He did say that, but I my recollection is that he was referencing

01:49 - 20.052 if I put those witnesses

01:49 - 23.056 on, then I'm going to get up there and rebut what they said.

01:49 - 27.126 But I think it's undetermined what he meant by that,

01:49 - 30.130 which is not sufficient for as far as a colloquy would go.

01:49 - 30.931 Yeah.

01:49 - 33.900 And and as far as,

01:49 - 38.605 your ethical obligations to your client, if your client tells you

01:49 - 42.441 he does not want mitigation of evidence presented to a jury,

01:49 - 45.644 aren't you bound by that like you normally didn't have?

01:49 - 50.916 Despite despite the trial judge's ruling on an evidentiary matter?

01:49 - 54.987 As a matter of ethics, if you're claiming I asked you not to do

01:49 - 57.924 that, aren't you ethically obligated to follow his wishes?

01:49 - 59.859 I would.

01:49 - 04.530 I would hope that in the capital context, when the issue is death versus life,

01:50 - 05.531 that that would not be.

01:50 - 09.301 So, I can tell you, with all candor, that the only person

01:50 - 12.272 in that courtroom that knew the law was my client,

01:50 - 15.741 that the Commonwealth nor myself, nor the trial judge.

01:50 - 18.711 I mean, as it played out, we all researched the law.

01:50 - 21.380 But at the time this went down, the only one that actually knew the law.

01:50 - 24.583 And if you look at my client's initial request that morning,

01:50 - 26.752 I'd like to waive mitigation. Denied.

01:50 - 29.321 I want to represent myself denied.

01:50 - 31.924 In hindsight, that's how it should have gone down,

01:50 - 36.062 is that if he wants to waive mitigation, then he can represent himself.

01:50 - 40.500 He was the only one in candor to the court that knew the law at that time.

01:50 - 40.867 Yeah.

01:50 - 44.537 I appreciate, the difficult position that you probably were put in.

01:50 - 48.807 Mr. Erickson, you make a very interesting argument.

01:50 - 51.811 And at the conclusion of, this case,

01:50 - 54.948 I would recommend that you write a law review article.

01:50 - 58.417 All right, let's hear from Mr.

01:50 - 59.718 Elkins. It has been an honor.

01:50 - 00.086 Thank you.

01:51 - 03.089 Justices.

01:51 - 07.326 Thank you, Chief Justice Todd.

01:51 - 08.028 Good morning, Your Honor.

01:51 - 11.031 Eric Alcorn for the Commonwealth appellate in this matter.

01:51 - 15.934 There seems to be a little bit more

01:51 - 18.938 waffling over the record in this matter than I would have hoped.

01:51 - 22.041 And while I recognize that this is oral argument

01:51 - 23.776 and your honors are familiar with the record,

01:51 - 26.512 I probably have it in front of you to a certain extent.

01:51 - 30.349 If if the court would indulge me, I would like to read two portions

01:51 - 35.422 of the record from the penalty that I think flatly answer this question.

01:51 - 36.588 Okay.

01:51 - 39.024 This the first portion is from May

01:51 - 43.028 3rd, 2023, notes the testimony, page seven.

01:51 - 44.930 And just for a little bit of context,

01:51 - 47.433 this is a back and forth between the parties where,

01:51 - 50.437 where the parties were discussing whether or not

01:51 - 54.840 the verdict slipped, wood would say presence of mitigating circumstances

01:51 - 57.844 essentially within the guilt phase record, as Attorney Erickson wanted,

01:51 - 02.282 or whether or not the verdict slip would say no mitigating circumstances presented.

01:52 - 04.483 So that's the context.

01:52 - 07.453 The court says, okay, I've seen them both.

01:52 - 09.555 I have to make a decision based upon the evidence

01:52 - 11.857 in the state of the record, we are going to utilize one

01:52 - 15.428 that states none presented because that is exactly what has happened.

01:52 - 18.197 Are we ready for the jury, Mr. Erickson?

01:52 - 19.965 So I can not argue any the court.

01:52 - 22.301 You cannot argue with Mr. Erickson.

01:52 - 24.870 And my only argument can be follow the law, the court.

01:52 - 26.305 I'm going to tell them that, Mr.

01:52 - 27.107 Erickson.

01:52 - 27.607 That's fine.

01:52 - 30.142 I just want the record clear, presumably.

01:52 - 34.981 And well done preserving the record for this issue before your honors.

01:52 - 39.017 Fast forward a day prior to the colloquy from.

01:52 - 41.320 This is from appellant's counsel, Mr.

01:52 - 42.222 Sanchez's counsel.

01:52 - 45.558 It's a direct question back and forth exchange that goes like this.

01:52 - 49.194 This is appellant's counsel, and you understand that

01:52 - 51.497 if there is no mitigating evidence presented,

01:52 - 56.101 that all counsel will be able to say to the jury is that there is no mitigating

01:52 - 59.072 evidence being presented, and you simply want them to follow the law.

01:52 - 02.174 Appellant. Yep.

01:53 - 06.045 All counsel will be able to say to the jury is there is no mitigation.

01:53 - 07.881 That's what you want.

01:53 - 09.915 This is paraphrasing now. Yep.

01:53 - 13.653 But counsel that that begs the question

01:53 - 17.724 was there mitigation evidence in the record.

01:53 - 22.195 Because all of this colloquy is if there is no mitigation evidence

01:53 - 24.263 in that.

01:53 - 28.500 But that's what I'm struggling with, is there there is mitigation

01:53 - 29.169 evidence in the record.

01:53 - 32.806 In fact, the Commonwealth is the one that put it in in the penalty phase.

01:53 - 35.275 So all

01:53 - 38.478 these type questions don't seem to address the scenario of

01:53 - 42.015 you understand there is mitigation evidence in the record.

01:53 - 48.354 Are you sure that you don't want to argue mitigation or you know that are we are

01:53 - 51.624 is it that you just don't want to present new additional mitigation evidence?

01:53 - 55.460 I respectfully, Your Honor, I cannot imagine a scenario

01:53 - 57.029 where you look at this record

01:53 - 01.867 and you can find an avenue within the record to conclude that Mr.

01:54 - 06.004 Sanchez's desire was not to present additional mitigation,

01:54 - 08.507 but he was perfectly fine with the zealous advocacy

01:54 - 10.075 based on mitigation within the record.

01:54 - 11.010 I'm not.

01:54 - 12.644 I'm just responding to the quotes that you read

01:54 - 15.648 because all the quotes you read had a qualifier.

01:54 - 19.651 If no mitigation evidence is presented, well, I would argue that that qualifier

01:54 - 23.088 is just forecasting what will happen, which is that there will be no mitigation.

01:54 - 25.490 Well, there is mitigation evidence, though I disagree with that,

01:54 - 29.696 because there can only be mitigation evidence of record when counsel presents.

01:54 - 31.196 It is not for the jury.

01:54 - 35.200 Did you you you, the first thing the Commonwealth did

01:54 - 38.204 was incorporate the record from the guilt phase.

01:54 - 38.938 Correct.

01:54 - 41.507 But you put the evidence in the record of the penalty phase.

01:54 - 44.177 Correct.

01:54 - 49.248 But it is not for the jury or the trial court to point to evidence

01:54 - 53.586 of record and identify for the jury what the trial court

01:54 - 58.291 or or presumably the jury would feel constitutes mitigating evidence.

01:54 - 00.092 That's the argument.

01:55 - 01.393 I'm sorry, that's argument.

01:55 - 04.397 And that's really the issue that we have in front of us is, is

01:55 - 07.499 is I can agree, it seems to me

01:55 - 11.905 from my reading of the record that he waved it

01:55 - 14.907 up, down, backwards and sideways,

01:55 - 17.911 presenting new mitigation evidence

01:55 - 21.080 to the jury in the penalty phase

01:55 - 25.851 where I'm struggling with is did he waive arguing

01:55 - 28.887 based on mitigation evidence that was already in the record because the

01:55 - 32.091 Commonwealth incorporated the record from the trial, from the guilt phase?

01:55 - 37.462 I don't see a world where the quote that I just read does not contemplate that.

01:55 - 41.367 When his counsel asks him that if we go, I understand you're getting hung up,

01:55 - 42.567 but we don't.

01:55 - 45.270 If we what I say, if we don't, I understand, Your Honor.

01:55 - 49.708 I understand that you're getting hung up on the qualifier of

01:55 - 52.244 if there is no mitigating evidence presented. Right.

01:55 - 54.212 But getting hung up on the words.

01:55 - 56.516 Well, but but nonetheless, Your Honor, that that does not.

01:55 - 00.486 The purpose of those words is not to say.

01:56 - 04.824 All that is saying is that if we do what you want, that's all that's saying.

01:56 - 07.859 All that's saying is, if we do what you're asking here today,

01:56 - 10.195 all counsel will be able to say to the jury is that

01:56 - 12.197 there is no mitigating evidence being presented,

01:56 - 13.732 and you simply want them to follow the law.

01:56 - 15.167 And that is exactly what Mr.

01:56 - 17.069 Sanchez wanted done.

01:56 - 20.372 I don't understand how respectfully, of course, that there is any way

01:56 - 21.773 you can read that statement.

01:56 - 24.777 Well, if it was that clear, we probably wouldn't be here.

01:56 - 26.979 I mean, it's I mean, and this is a serious fight.

01:56 - 28.013 I mean, it's a very serious matter.

01:56 - 29.848 It doesn't get much more serious, of course.

01:56 - 34.319 And and I think your answer that your last answer was the best

01:56 - 39.125 answer was the qualifier doesn't matter because he was specifically told

01:56 - 43.396 that this is what's going to happen if you say yes to my question,

01:56 - 46.898 even if the predicate was wrong,

01:56 - 48.066 this is what's going to happen.

01:56 - 50.502 Do you agree with that, that that's going to happen?

01:56 - 51.703 And the answer was yes.

01:56 - 52.704 That's your best response.

01:56 - 55.540 I think I understood your, and thank you.

01:56 - 58.777 However I yeah, I would, I would go on to say that I didn't

01:56 - 02.949 actually finish the afterwards there was one additional exchange.

01:57 - 07.252 I assume that you'll have the same issue with it nonetheless, but I will read it,

01:57 - 08.887 which says appellant's counsel.

01:57 - 11.891 You understand the that following the law would necessarily mean

01:57 - 14.760 that in the absence of any

01:57 - 18.430 in the absence of any evidence of mitigating circumstances, if there is

01:57 - 21.967 at least one aggravating circumstance, then the sentence must be death.

01:57 - 23.335 Do you understand that, counsel?

01:57 - 26.339 I understand that's exactly what justice perhaps, and saying

01:57 - 29.641 there was mitigation evidence presented in this particular case.

01:57 - 33.645 So why why don't we impose an obligation upon

01:57 - 36.916 defense counsel that he has to present that to the jury as mitigation?

01:57 - 38.083 Because I don't believe

01:57 - 41.820 there was any mitigation evidence presented, absent counsel presenting it.

01:57 - 43.822 And his counsel did present it to Justice

01:57 - 45.590 Robson went through that for you on page 50.

01:57 - 49.562 It literally lists 6 or 7 different mitigating factors

01:57 - 53.332 that he could have argued to the jury constitutes mitigation,

01:57 - 57.702 he argued in his in his brief on appeal, he did not argue it to the jury

01:57 - 00.005 because his client instructed him not to do so.

01:58 - 03.508 In the absence of the I don't think the client, when he asked the court

01:58 - 07.212 to be able to argue those points, his attorney did, but Mr.

01:58 - 08.181 Sanchez did not.

01:58 - 12.184 And he is the client, and I have not, of course, referred to any of the law

01:58 - 12.718 at this point.

01:58 - 15.554 I don't believe there's much disagreement on the state of the law

01:58 - 18.156 in terms of the validity of mitigation waiver.

01:58 - 21.060 However, if I can boil it down essentially

01:58 - 23.096 the argument is

01:58 - 26.099 under all of the waiver of mitigation case law,

01:58 - 29.634 it is abundantly clear that a lawyer shall abide

01:58 - 33.406 by a client's decisions concerning the objectives of representation.

01:58 - 35.440 I think that's a key word.

01:58 - 40.780 And objective of representation includes things like pleading guilty, testifying,

01:58 - 43.982 on your own behalf, demanding a jury trial

01:58 - 47.920 or in the context of the penalty phase, presenting mitigating circumstances.

01:58 - 49.321 So, of course,

01:58 - 53.391 the Commonwealth would never argue that, an attorney is beholden to every whim.

01:58 - 56.462 And demand of his client in terms of how to go about

01:58 - 59.866 achieving the objectives of representation.

01:59 - 01.066 But this issue,

01:59 - 05.004 whether or not mitigating circumstances will be presented to the jury,

01:59 - 09.709 that is an objective of representation that is within the client's control.

01:59 - 13.778 And I'd like to step back and of course say, of course I'm not up here arguing.

01:59 - 15.313 I think this was a good decision.

01:59 - 17.315 I don't think anybody in this courtroom would say that

01:59 - 19.718 this was a good decision for Mr. Sanchez.

01:59 - 22.354 I would have preferred that it was an adversarial proceeding

01:59 - 24.075 and mitigating circumstances were presented.

01:59 - 26.224 Mr. Sanchez made

01:59 - 29.562 it abundantly, abundantly clear that that is not what was going to happen.

01:59 - 34.667 And the trial court successfully did everything that it could to honor

01:59 - 36.001 that wish.

01:59 - 38.904 So I frankly, and with respect to Mr.

01:59 - 41.908 Erickson and, of course, Your Honor, I think it's a little

01:59 - 45.677 mind boggling that we can allow Mr.

01:59 - 49.581 Sanchez to essentially unpin this grenade, lob it into the courtroom

01:59 - 50.682 to shake all this up.

01:59 - 53.986 And here we are squabbling about whether or not this is actually what he wanted.

01:59 - 57.989 When the the cold record could not be clearer.

01:59 - 01.594 I understand justice perhaps and focusing on some of those qualifiers.

02:00 - 07.766 My argument record I understand but my my argument is still those qualifiers

02:00 - 11.469 do not change this this conclusion, which is a different question.

02:00 - 13.439 Absolutely. I realize you haven't

02:00 - 15.974 address this, but

02:00 - 19.611 am I correct that, he was convicted?

02:00 - 22.615 Sanchez was convicted, among other things,

02:00 - 25.884 of conspiracy to commit murder in the second degree.

02:00 - 28.553 As to Thomas and Diaz. Correct.

02:00 - 32.757 Is that is that an, an oxymoron?

02:00 - 35.761 If we're talking about a felony murder, a

02:00 - 38.597 the under there's an unintentional aspect to the killing.

02:00 - 40.732 There. I'd rather.

02:00 - 42.334 How do you conspire to do that?

02:00 - 44.669 I did note that in my brief.

02:00 - 47.005 And there's two points I would respond.

02:00 - 49.441 And how do we deal with that then? Sure, there's two points.

02:00 - 51.109 I would respond. One is a bit more technical.

02:00 - 56.881 From my recollection, the the preserved claim within, appellant's

02:00 - 00.786 brief was that there was no shared intent, no shared specific intent.

02:01 - 03.488 I believe that was the thrust of the claim.

02:01 - 07.292 So in my view, since second degree murder does not call for specific intent,

02:01 - 10.963 if that's the claim raised on appeal, then any claim beyond that

02:01 - 14.799 that would go to directly challenge whether or not this is like a cognizable

02:01 - 16.668 offense has not been preserved.

02:01 - 19.138 Nonetheless, if we are reaching that question,

02:01 - 21.940 there are a few cases I cite.

02:01 - 23.708 I believe Fisher is one of them.

02:01 - 26.712 There was another case of Rivera, I believe in 2020,

02:01 - 30.082 that did address the anomalies.

02:01 - 33.885 I suppose you could characterize it as a, conspiracy to commit

02:01 - 35.086 second degree murder.

02:01 - 38.356 I, I do acknowledge it's a bit legally nebulous.

02:01 - 41.626 However, I believe that the rationale, for conspiracy to commit

02:01 - 44.630 third degree murder would essentially carry the day here.

02:01 - 46.264 I know that there is case

02:01 - 50.269 law that explicitly permits that as a legally cognizable offense.

02:01 - 53.438 Alternatively, would it be appropriate to vacate that

02:01 - 56.641 conviction and affirm the sentence?

02:01 - 58.777 Nonetheless,

02:01 - 01.546 the conspiracy to commit second degree murder?

02:02 - 03.782 Yes, sir.

02:02 - 06.151 I don't think we accepted that.

02:02 - 08.219 I, I don't believe that was an issue preserve.

02:02 - 09.954 That would be your answer, that it's waived.

02:02 - 12.524 Well, I'd like to know a bit more about the.

02:02 - 15.193 Are you saying that would affect the life? I'm sorry, the death sentence.

02:02 - 16.361 Well, I'm asking you.

02:02 - 16.962 I don't think so.

02:02 - 21.399 Because the aggravated here were, burglary was the predicate felony.

02:02 - 25.638 So I don't believe we're addressing the underlying burglary sufficiency with your.

02:02 - 27.839 No, no, I was talking about the conspiracy.

02:02 - 30.843 I think that was an issue raised. I thought.

02:02 - 34.479 I thought they did raise the issue about whether the second whether you conspired

02:02 - 35.348 to commit second. Yeah.

02:02 - 38.616 There was a sufficient challenge across the board which we have to look at.

02:02 - 41.553 Do we not correct issue number two with sufficiency

02:02 - 43.588 to convict in the first degree?

02:02 - 44.823 There is no driving.

02:02 - 46.891 That's an issue that I discussed with me.

02:02 - 49.294 First we were looking forward.

02:02 - 51.796 Wait, I believe so, Your Honor.

02:02 - 53.098 I think we'll take a look.

02:02 - 54.399 We'll take a look at. Make sure.

02:02 - 56.969 Thank you. Mr.. Okay. Thank you all.

02:02 - 01.841 Our next case is Halperin versus Rico USA.

02:03 - 07.113 This appeal concerns a manufacturers duty to disclose alleged defects in a product.

02:03 - 11.983 In 2015, Robert Halperin purchased a Pentax Model

02:03 - 15.721 K50 camera manufactured by Ricoh USA.

02:03 - 19.724 After five years of light years, the camera started producing

02:03 - 22.862 black or dark photographs under standard exposure settings.

02:03 - 24.929 Although the expected lifespan

02:03 - 28.100 of the camera was approximately 100,000 activations.

02:03 - 32.271 However, this camera had only 9000 activations when it malfunctioned.

02:03 - 36.074 Halpern, a lawyer, sued

02:03 - 39.078 Ricoh in the Philadelphia Court of Common Pleas.

02:03 - 42.914 Ricoh filed preliminary objections to the complaint, arguing

02:03 - 47.018 that the complaint should be dismissed because Halperin did not allege that Ricoh

02:03 - 50.089 made any false or misleading statements about the camera.

02:03 - 52.390 Halperin appealed.

02:03 - 55.960 The Superior Court agreed with Halperin that he was not required

02:03 - 59.431 to plead specific facts or misleading statements, but the court

02:03 - 03.602 nevertheless affirmed the dismissal on the grounds that Halpern's complaint

02:04 - 07.473 failed to plead that Ricoh had a duty to disclose the defect.

02:04 - 10.775 In this appeal to the Supreme Court,

02:04 - 13.979 Halperin asked that the court overrule the Superior Court's

02:04 - 18.083 2001 holding in Romeo versus Pittsburgh Associates,

02:04 - 21.720 which held that a party has a claim for deceptive admission

02:04 - 26.192 under Pennsylvania's Unfair Trade Practices and Consumer Protection Law,

02:04 - 31.063 only if the vendor had a duty to disclose a defect in the good or service.

02:04 - 36.902 Halperin argues that the requirement in Romeo that there be a duty to disclose

02:04 - 40.038 is not supported by the language of the statute,

02:04 - 43.209 and that the decision is outdated and should be overruled.

02:04 - 44.944 In support.

02:04 - 47.812 Halperin cites other states that have interpreted similar

02:04 - 51.749 consumer protection statutes to permit claims based on fraudulent

02:04 - 55.521 or deceptive emissions, even when there is no duty to disclose.

02:04 - 01.560 In response, appellee Rico argues that under the Consumer Protection statute

02:05 - 06.198 and the Superior Court's decision in Romeo, a manufacturer, silence

02:05 - 10.236 does not give rise to a cause of action for deceptive conduct,

02:05 - 13.638 unless there is also a law that imposes

02:05 - 16.642 on the manufacturer a duty to speak.

02:05 - 19.777 Rico further argues that the requirement of a duty

02:05 - 22.781 to speak is supported by the statutory language.

02:05 - 27.052 The state's statutes, legislative history, and Pennsylvania case law.

02:05 - 31.856 Finally, Rico argues that the rule is consistent with other states

02:05 - 36.962 construction of similarly worded statutes and that Halpern has failed to offer

02:05 - 42.067 persuasive argument for challenging the law by overruling Romeo.

02:05 - 44.936 Yes. Good morning, Your Honor.

02:05 - 47.272 Robert Halperin, attorney pro se.

02:05 - 49.807 And may I please the court?

02:05 - 54.212 I think the particulars in this case highlight a gap

02:05 - 00.786 or a, fracture in the consumer protection law of the Commonwealth,

02:06 - 04.890 and that there are situations such as this where there was a serious,

02:06 - 09.061 perhaps defect or problem with a piece of, merchandise.

02:06 - 12.831 And there's no relief that a consumer can find

02:06 - 15.968 under the current law because the,

02:06 - 19.338 the current law encourages

02:06 - 23.943 sellers to remain silent in the face of a defect which they may

02:06 - 28.547 or may not know about, but because of we're bound by Romeo at this point,

02:06 - 32.551 which requires that when that silence requires,

02:06 - 36.422 you can remain silent unless there's a duty to speak.

02:06 - 40.392 Are we talking about a modification or a defect?

02:06 - 43.595 I mean, does it have to be a defect for

02:06 - 47.766 for this argument to, arise, or are you talking about any modification?

02:06 - 51.002 I'm using the term defect very broadly.

02:06 - 56.574 It could be any problem with the, item that was purchased, not any problem.

02:06 - 58.843 And that's a question for the court how we want to

02:06 - 03.082 how the court would like to narrow what this is going to apply to.

02:07 - 04.382 It's called a catch all.

02:07 - 06.217 But I don't think we want to catch

02:07 - 11.457 everything in a revision or bringing a rejection of Romeo.

02:07 - 16.427 So regarding Romeo, I think,

02:07 - 22.000 Greg versus Ameriprise leads us down this path, to a large degree,

02:07 - 26.538 because as the court knows, in that case, it was found that

02:07 - 31.710 a strict liability standard sure should apply to the consumer protection law.

02:07 - 35.079 So if we're looking at Romeo, there's really

02:07 - 39.218 no continuing basis to require at duty.

02:07 - 42.320 The duty that Romeo,

02:07 - 46.157 Thrust upon us

02:07 - 50.361 was really a holdover from the old common law and the old common law.

02:07 - 52.930 And Prosser writes about this in the old common law.

02:07 - 55.934 There was a distinction drawn between

02:07 - 59.103 between misfeasance and non physicians.

02:07 - 02.908 And the common law didn't favor non Ephesians or the lack of action.

02:08 - 06.078 So in fraud cases it was introduced.

02:08 - 08.980 Mere silence

02:08 - 12.818 or lack of action would not normally engender fraud.

02:08 - 15.920 But then there were exceptions that were introduced which required

02:08 - 19.692 a duty, and a duty could be found through a confidential relationship

02:08 - 21.592 or a fiduciary relationship.

02:08 - 25.196 And that duty is what Romeo was referring to.

02:08 - 28.534 The duty which was found in the old common law of fraud.

02:08 - 30.469 But once we get to

02:08 - 33.271 looking at it as the

02:08 - 36.674 once we look at this CPO as, well,

02:08 - 40.979 if you look at the plain language of the CPO as the court and Greg said,

02:08 - 45.050 there's really no reference to a duty that is within the plain language.

02:08 - 50.155 So we're arguing that there's no need for that duty to be there was no need.

02:08 - 53.959 There's no need for that duty to be imported into the CPO.

02:08 - 56.961 Counsel?

02:08 - 00.598 Yes. Can I ask, what would the disclosure

02:09 - 04.069 what would you suggest the disclosure should have been in this case?

02:09 - 07.138 The disclosure should.

02:09 - 10.142 Well, we didn't do have any discovery, but on.

02:09 - 11.776 Well, you knew what was wrong with it.

02:09 - 15.047 I mean, what what should, the,

02:09 - 19.051 manufacturer defendant have said

02:09 - 21.819 about this product?

02:09 - 24.489 They should have disclosed that there were problems with the average.

02:09 - 26.391 So that would lead to the likely,

02:09 - 29.460 now malfunctioning,

02:09 - 33.464 or unused ability of the camera,

02:09 - 36.902 within a short within a possibly within several years.

02:09 - 38.669 And how about the warranty?

02:09 - 42.841 That said, you can rely on this product, being upgradeable for a year.

02:09 - 47.011 What is that to?

02:09 - 48.780 The warranty question is interesting.

02:09 - 52.851 Because my my friends on the other side, they've been arguing that

02:09 - 55.586 they can just rely on the warranty.

02:09 - 58.891 The warranty, they say, sets the expectations,

02:09 - 02.494 but the warranty doesn't really set the expectations about the product.

02:10 - 05.798 It sets the expectations about what you expect to sell it to do.

02:10 - 10.769 If it if I if I have if a one year warranty on on the camera

02:10 - 13.037 and something happens after one year, I don't

02:10 - 16.474 I can no longer expect to sell it to be counsel.

02:10 - 20.244 Are you indicating that a blog should provide

02:10 - 23.482 the basis for the extent of its usage?

02:10 - 26.451 Didn't you base this upon some blog you read

02:10 - 29.954 and introduced

02:10 - 31.622 as opposed to the one year warranty?

02:10 - 33.224 It's some blogs had all these.

02:10 - 36.929 These types of cameras should have 100,000 photos as opposed to

02:10 - 38.797 correct.

02:10 - 42.000 Well, well that was that was part of the fact

02:10 - 44.402 that it was said that the coverage.

02:10 - 48.740 So going back to Justice Donahue's question, you're saying year,

02:10 - 53.345 which was guaranteed, should be extended to seven,

02:10 - 57.281 but your introduction of evidence at that camera

02:10 - 01.386 should have been X number of photos before it turns black.

02:11 - 04.656 I if your argument's conflicting with

02:11 - 07.793 what your brief says, I'm asking you to straighten that out for me.

02:11 - 09.927 Okay? I'm not arguing.

02:11 - 12.630 That had to last for a certain number of photos.

02:11 - 17.369 I'm arguing is that it was sold with a defect, a defective aperture.

02:11 - 18.870 Mechanism.

02:11 - 22.774 Okay, so when did it unable to last, and all through its normal lifetime.

02:11 - 25.743 So it wasn't really. What's the normal lifetime?

02:11 - 29.380 I think that's that that that issue kind of segues into the whole issue

02:11 - 32.516 of the warranty because you're alleging a defect.

02:11 - 35.186 And I mean, I'm I'm going to go back to the duty question.

02:11 - 38.657 If there's no duty, you can't have a material misrepresentation.

02:11 - 42.126 So in this particular case, you're saying that they made some modification,

02:11 - 42.394 which is

02:11 - 45.898 I think is what the chief asked you beforehand on this particular solenoid.

02:11 - 49.500 But that's not a representation or warranty made by the actual seller.

02:11 - 52.471 It was on some kind of third party blog as just a stock replay.

02:11 - 54.673 So what's the defect you're alleging?

02:11 - 59.110 We're alleging that the solenoid in

02:11 - 02.114 the aperture should have been made of a different material.

02:12 - 02.681 It was made.

02:12 - 05.016 It would the material changed over time.

02:12 - 09.220 And then in certain cameras, two models, they used a solenoid made of a different.

02:12 - 11.889 Is that a defect or modification?

02:12 - 14.258 Is that a defect or a modification.

02:12 - 16.861 Doesn't that go to the kind of the merchant ability of the

02:12 - 18.329 of the product itself?

02:12 - 20.998 I mean, the product was still working

02:12 - 21.999 well, no.

02:12 - 24.335 After the after the defect manifests itself,

02:12 - 27.204 you're just getting better pictures in many situations.

02:12 - 29.640 But the defect manifested itself according to your pleading.

02:12 - 31.475 After 5 or 6 years.

02:12 - 34.479 The warranty only lasts for one year.

02:12 - 35.681 Right.

02:12 - 39.483 And but we're saying that the warranty should not determine consumer

02:12 - 40.419 expectations.

02:12 - 44.790 The warranty is really just what the manufacturer or the seller decides to.

02:12 - 46.457 But this is where I'm confused.

02:12 - 51.629 You're your evidence in the record is based upon this third party blog.

02:12 - 54.899 That's what you argue, but now you're not arguing that.

02:12 - 57.002 I'm asking you to qualify that.

02:12 - 00.237 Well, I don't I don't think in the record I was

02:13 - 04.376 I was taking certain facts from the third, from the postings,

02:13 - 10.182 but it was my own camera that had a defect and stopped working after five years.

02:13 - 12.016 Correct. It didn't stop working.

02:13 - 15.086 The pictures were darker than you would appreciate.

02:13 - 15.420 Or did.

02:13 - 18.122 It absolutely just show up as black photos.

02:13 - 19.590 That's not what I read in the breach.

02:13 - 21.625 Correct me if I'm wrong.

02:13 - 23.928 It suddenly I started. I hadn't

02:13 - 27.866 I didn't use this camera that often, so it was a lightly used camera.

02:13 - 31.669 And then one day, one day I started using it and it suddenly

02:13 - 35.474 and other people had the same experience, started producing black images.

02:13 - 39.210 As I explored it a bit, I discovered that the bright light.

02:13 - 42.180 You could get some pictures, but what?

02:13 - 46.251 The aperture is actually frozen, so you're only allowed one opening

02:13 - 47.852 and that'll work in bright light.

02:13 - 50.355 But it's not going to work in many conditions.

02:13 - 54.058 Counsel, can I ask a follow up question?

02:13 - 57.261 And here's where I'm confused because I agree with you with Greg

02:13 - 02.633 says I mean, and the statute itself creates duty, so that, you know,

02:14 - 07.038 a manufacturer or seller can't engage in otherwise deceptive conduct.

02:14 - 10.075 But I'm grappling with what's the

02:14 - 13.210 what the deceptive conduct is here.

02:14 - 16.715 I know that you think that they should have

02:14 - 20.018 advised the purchaser of something.

02:14 - 20.752 Okay.

02:14 - 24.889 And and in this case, it's that the aperture,

02:14 - 29.126 will malfunction or will likely malfunction in five years.

02:14 - 31.896 Is that what you're saying?

02:14 - 34.900 Well, we don't know in how many years it's going to malfunction.

02:14 - 36.001 What do you see that?

02:14 - 36.468 That's what.

02:14 - 39.170 That's what I'm troubled with here. What?

02:14 - 42.874 What is it that they were supposed to disclose?

02:14 - 46.911 I mean, the the the fact that,

02:14 - 50.882 I mean, it could be that the knob on the front of the camera,

02:14 - 53.451 is known to fall off in ten years.

02:14 - 57.221 Did they have to tell a purchaser that the knob is going to fall off in

02:14 - 58.456 ten years?

02:14 - 02.159 Is that is that a problem that has to be disclosed, or is that just

02:15 - 05.730 what happens after ten years of, you show the knob on the camera?

02:15 - 07.698 Same thing with this aperture.

02:15 - 11.001 And I may be talking about something that ultimately goes to discovery,

02:15 - 16.541 but I'm challenged by what the deceptive conduct is here.

02:15 - 19.677 The deceptive conduct is that the camera

02:15 - 22.880 is not performing to minimal levels of performance.

02:15 - 25.149 Who says, oh, who says that?

02:15 - 27.118 That's what I'm struggling with. Maybe.

02:15 - 30.087 Maybe they only last five years.

02:15 - 32.791 Maybe the aperture. Only last five years.

02:15 - 37.461 I'm. That's why my first question to you is what?

02:15 - 41.265 Why is it that you would have liked them to disclose to

02:15 - 45.102 you on the packaging or an insert or something like that?

02:15 - 47.505 What were they supposed to say?

02:15 - 50.141 They were supposed to say

02:15 - 54.278 that the aperture is is not operating properly.

02:15 - 57.282 It's not going to last through the normal life of the camera.

02:15 - 01.319 And not only will it not last, it's going to be very expensive to repair.

02:16 - 04.288 What's the normal life of the camera?

02:16 - 08.493 Well, we projected 100,000, pictures.

02:16 - 10.528 That's just, you know, and product.

02:16 - 15.000 And that's the basis of the third party blog you read.

02:16 - 17.935 Yes or no?

02:16 - 19.170 Correct. Okay.

02:16 - 22.874 Well, counsel, we're we're getting into the weeds here, and I wonder if.

02:16 - 25.143 Yeah, I guess

02:16 - 28.146 I'm let me see if I understand the claim.

02:16 - 31.516 I, I this case was tossed on PIOs.

02:16 - 35.687 And what you're asking us to do is send it back.

02:16 - 40.858 Having overruled Romeo and send it back to apply

02:16 - 44.228 under the, amendments, the 96 amendments.

02:16 - 49.166 And Greg, on the deceptive conduct paradigm,

02:16 - 53.070 whether or not you win is beside the point, right?

02:16 - 56.675 It's it's a question of whether the the paradigm,

02:16 - 01.213 the legal paradigm was correct isn't isn't that

02:17 - 04.449 in other words, you don't have to convince us here of the proof.

02:17 - 08.552 The question I thought was whether Romeo is the wrong paradigm.

02:17 - 09.620 Isn't that the issue?

02:17 - 10.488 Yes, that's correct.

02:17 - 13.791 And I don't think I can convince, everyone on the proof

02:17 - 16.560 because we don't have you might still lose, is my point.

02:17 - 19.663 My, my my question is that you

02:17 - 22.666 don't need to prove us at 100,000 apertures

02:17 - 26.537 or or you know, whether this fact or this warranty isn't.

02:17 - 29.040 I thought you're just asking us to send it back

02:17 - 32.943 under the non Romeo, under the Greg Paradigm?

02:17 - 35.947 Is that what you're seeking? Correct.

02:17 - 39.149 But I would also add that we would suggest that

02:17 - 42.120 just looking at the CPO,

02:17 - 43.921 might not work.

02:17 - 48.059 And my friends raised a lot of concern about the CPO.

02:17 - 51.061 We're talking about omissions rather than affirmative statements.

02:17 - 54.398 I understood I understand you're asking us this to say

02:17 - 57.402 that under Greg and under the 96 amendments,

02:17 - 01.906 you can have a misrepresentation by omission consistent with the fact.

02:18 - 04.608 Isn't that the point? Correct.

02:18 - 08.880 And you may want to go even further and say that these omissions have to be

02:18 - 13.050 I don't want to I don't think material works, but, go

02:18 - 18.990 to, the, the minimum performance level of what you would consider more.

02:18 - 23.060 But that's so that goes I mean, so we do have to decide a legal question.

02:18 - 25.981 We have to decide whether this claim, assuming the fact that you're saying

02:18 - 28.966 falls within the definition of the catchall,

02:18 - 32.170 was it unfair or deceptive?

02:18 - 35.639 Basically, as a matter of law, is this the kind of claim

02:18 - 39.377 that the general Assembly meant to fall under this catchall provision?

02:18 - 42.179 That's the legal question

02:18 - 44.682 I'm struggling with why you don't have a breach of

02:18 - 47.686 warranty claim that's barred by the statute of limitations,

02:18 - 50.922 because if we side with you,

02:18 - 54.659 then the statute of limitations for breach of warranty goes out the window,

02:18 - 58.529 and all breach of warranty claims are now going to fall within the catch.

02:18 - 02.734 All of the unfair, the unfair trade practice and consumer protection law.

02:19 - 05.770 Why am I wrong?

02:19 - 09.039 I understand the concern, but it's a separate claim.

02:19 - 10.974 If we're going to tie your CPO

02:19 - 14.045 to warranty, then you're just going to eviscerate the CPO.

02:19 - 15.280 But what you're

02:19 - 18.682 what you're arguing is warranty you when you have said that the

02:19 - 20.217 that the camera is defective

02:19 - 24.021 because it is not operating for the expectancy of the life.

02:19 - 28.025 It's not it's violating the warranty of merchantability the implied, you know,

02:19 - 30.527 all these implied warranties that we recognize under Pennsylvania law

02:19 - 32.429 that are actionable.

02:19 - 35.700 You're saying, but but you're barred by the statute of limitations.

02:19 - 39.803 You're saying, oh, well, that's not a problem because it was deceptive,

02:19 - 44.675 because they failed to they sold me a product

02:19 - 49.279 that wasn't suitable for 100,000 pictures, the useful life.

02:19 - 50.640 That's a breach of warranty claim.

02:19 - 52.717 They showed me a

02:19 - 55.720 product that was defective and

02:19 - 58.622 the judge, since the GPL claims were heard by

02:19 - 01.626 the judge, is going to have to decide to.

02:20 - 04.228 In what way was I'm using a defective body

02:20 - 07.831 and what we did was not fit for use or whatever.

02:20 - 10.701 However, what that fit for use is a warranty

02:20 - 12.669 claim is an implied warranty claim.

02:20 - 16.374 Well, fitness for purpose, fitness for use Merchantability those are

02:20 - 18.375 those are warranty claims.

02:20 - 19.410 And I'm trying to say

02:20 - 21.044 which the General Assembly has said

02:20 - 23.247 are subject to a certain statute of limitations.

02:20 - 27.684 I'm trying to understand is it your argument that this catchall

02:20 - 31.156 provision includes breaches of implied warranty?

02:20 - 34.525 No. It's.

02:20 - 36.293 And, no. How are they different?

02:20 - 39.864 How is a how is a catchall claim under the Unfair Trade Practices Act

02:20 - 43.468 that you're trying to bring here different

02:20 - 46.136 from a breach of implied warranty claim?

02:20 - 50.274 The catchall claim is that it's likely to lead

02:20 - 53.278 to, mislead or confuse a consumer.

02:20 - 54.378 If the commission is likely

02:20 - 57.949 to mislead a consumer, then it falls within the catchall.

02:20 - 58.950 I'm caught.

02:20 - 00.884 I'm breaking commission. Is the omission.

02:21 - 03.654 Have to stem from the unequal bargaining power

02:21 - 06.723 that prompted the General Assembly to create the Unfair Trade

02:21 - 10.727 Practices Act in the first place, meaning an omission of a fact

02:21 - 14.699 that is solely within the knowledge of the manufacturer or the seller.

02:21 - 18.502 No, I don't I don't think so.

02:21 - 22.005 So as long as it's if it's a publicly available fact

02:21 - 25.243 because, you know, we all Google now and we buy a lot of stuff online.

02:21 - 30.647 And there are a lot of reviews on Amazon, for example, if, if, if there's a review

02:21 - 34.919 posted somewhere that says, hey, do not buy this camera, this camera sucks.

02:21 - 37.588 It has a bad aperture, all that stuff.

02:21 - 40.324 But you're not a you're not a researching consumer.

02:21 - 43.594 You buy the camera anyway without without going out there

02:21 - 46.598 to the blogs or whatever, and it has the failure

02:21 - 50.334 you're saying doesn't matter that it was general

02:21 - 51.635 that the information was out there.

02:21 - 53.170 It was generally available to everybody.

02:21 - 55.739 The, you know, caveat emptor is kind of out the window.

02:21 - 59.343 If somebody puts a product up and there's a, there's a, there's a defect in it,

02:21 - 03.248 they have to affirmatively disclose it to before I buy it, even if it's out there.

02:22 - 06.984 That's that's your view of what that clause captures.

02:22 - 08.318 I would go so far as to argue

02:22 - 12.357 for strict liability that even if they that they have,

02:22 - 16.060 they had an obligation to disclose it, whether or not they even had knowledge.

02:22 - 17.761 Oh, my question is, if it's deceptive,

02:22 - 20.732 if the statute says deceptive, then they have to be trying.

02:22 - 23.367 They have to be deceiving you.

02:22 - 25.903 And how can you, how can somebody deceive you

02:22 - 28.907 with information that is generally available to the public?

02:22 - 33.745 I agree, in that case, if you if you if the consumer had knowledge,

02:22 - 37.015 let me backtrack or could have had knowledge

02:22 - 39.616 or could have had not newer should have known if the consumer knew,

02:22 - 41.785 it should have known before buying the product that the prior year.

02:22 - 46.090 It has a certain solenoid that might fail within 4 or 5 years.

02:22 - 48.692 I don't know that I would go

02:22 - 51.696 that far, because then we're putting a burden on the consumer and

02:22 - 57.602 when we read cases about the CPO, that's caveat emptor, which I thought we should.

02:22 - 58.736 I'm sorry.

02:22 - 00.737 Justice Robson started with a question

02:23 - 03.741 about the warranty, and I'm just reading the warranty.

02:23 - 06.276 You have to helping with this.

02:23 - 10.048 It says that, Rioch, warrants

02:23 - 14.051 to the original retail purchaser for a period of one year

02:23 - 17.455 from the date of purchase against defects

02:23 - 20.524 in material or workmanship.

02:23 - 23.360 Now, you're you're you're alleging.

02:23 - 28.633 I believe, that the problem with the aperture is a defect in the material.

02:23 - 30.168 Right.

02:23 - 33.605 Does this mean nothing this this one year

02:23 - 37.274 warranty limitation?

02:23 - 38.142 It means something.

02:23 - 40.577 But they could have given a three month warranty.

02:23 - 43.580 They could have given a you to bought it knowing that

02:23 - 46.584 that's what you were purchasing, a camera

02:23 - 49.519 that had a three month warranty, and you look elsewhere

02:23 - 52.055 because you could have probably gotten one with a one year warranty.

02:23 - 56.059 But I mean, I'm just trying to I'm trying to decide

02:23 - 59.063 what the intersection is here between

02:23 - 02.065 a warranty against defects for a year.

02:24 - 05.035 And what you're suggesting is that five years later,

02:24 - 08.205 if I find out that there's a problem, I have a claim

02:24 - 12.710 under the catchall provision, of the Unfair Trade Practices Act.

02:24 - 15.213 I'm trying to

02:24 - 18.582 unhitch the CPO claim from warranty claim.

02:24 - 20.150 Oh, that's why I'm asking you.

02:24 - 24.589 How are you saying maybe the warranty is a defense against the claim,

02:24 - 29.894 as opposed to, an affirmative bar against the claim?

02:24 - 33.030 No, I don't think the warranty is really in the picture at all.

02:24 - 33.898 Okay.

02:24 - 36.566 Because you're you're not, but you're not.

02:24 - 40.338 See, I it seems to me you're getting tangled up here.

02:24 - 44.274 By walking down

02:24 - 47.378 that path, I thought from the briefs

02:24 - 52.350 that your argument is that you're entitled to.

02:24 - 56.888 You're entitled to, to get to discovery

02:24 - 01.992 on, on on your claims of deceptive conduct

02:25 - 05.463 without the paradigm of Romeo

02:25 - 09.533 confining you, you're that you're entitled to show

02:25 - 12.704 deception by material omissions,

02:25 - 16.440 that you may have a really hard road

02:25 - 20.444 to hoe here, but you ought to be able to try to hoe it.

02:25 - 22.179 I thought that was the argument.

02:25 - 25.549 I mean, that is the argument, but I'm taking it a step further.

02:25 - 29.219 Maybe I'm just causing a bit of confusion, but the step further is

02:25 - 31.488 what type of omissions are we talking about?

02:25 - 35.126 And if you look at a case like, Thomas Keller, which is cited in brief,

02:25 - 38.496 I believe it's the first a First Circuit case.

02:25 - 41.565 They goes and it's derived from the FTC.

02:25 - 46.237 The FTC addresses this in terms of, omissions,

02:25 - 51.442 and they talk about it commissions or do not meet a minimum standard.

02:25 - 55.646 Then they're deceptive and they're not talking about warranties.

02:25 - 57.881 They're talking about the omissions themselves.

02:25 - 00.617 And it has to they use the phrasing.

02:26 - 02.486 It has to be fit for the intended purpose.

02:26 - 04.888 That's why I used that phrasing before.

02:26 - 05.889 Or the requirement.

02:26 - 08.191 Yeah, that's an implied warranty.

02:26 - 10.527 Fitness for a particular purpose.

02:26 - 10.828 Right.

02:26 - 15.232 But they're using that phrase not in the sense of what you

02:26 - 16.566 I mean, they're incorporating the warranty.

02:26 - 19.436 You don't get confused by express warranties and implied warranties.

02:26 - 20.937 What Justice Donohue was talking about

02:26 - 23.975 was the express warranty of the product that was given by the employer.

02:26 - 27.645 In addition to those express warranties, there are implied warranties.

02:26 - 29.013 And I'm.

02:26 - 32.517 I was talking about the implied warranties of fitness for a particular purpose.

02:26 - 33.650 I agree with you.

02:26 - 37.822 Under the law, they couldn't put a product in the stream of commerce with that way.

02:26 - 40.123 Yeah, that that breach the implied warranty of fitness

02:26 - 41.424 for a particular purpose.

02:26 - 43.960 I think that's what your claim is coming on.

02:26 - 47.731 But you you're trying to avoid the statute of limitations to put it in the unfair

02:26 - 50.167 Trade Practices Act, maybe to get troubled damages,

02:26 - 53.270 maybe to get attorney's fees, maybe to bring as a class action.

02:26 - 56.474 I don't know, but I'm trying to I'm, I'm struggling with and I'll,

02:26 - 58.942 I'll not ask the question again after this is

02:26 - 02.513 what is the difference between a breach of implied warranty claim

02:27 - 06.617 and this claim you're trying to bring under the Trade Practices Act?

02:27 - 10.321 Well, it depends how omissions get too far defined.

02:27 - 13.290 So we're using the broad term omissions.

02:27 - 16.727 It's probably too general because it's going to incorporate

02:27 - 18.361 all kinds of problems.

02:27 - 21.331 So it's probably going to have to be narrowed material.

02:27 - 22.866 I'm saying we're going to have to narrow it.

02:27 - 25.703 You're going to have to narrow it. Right. So the

02:27 - 29.239 it could be and the FTC offers some guidance

02:27 - 32.543 like I talked about in my brief, what the implied warranty.

02:27 - 35.245 I'm really trying to avoid that.

02:27 - 35.947 And it's true.

02:27 - 39.617 I, I don't want to be bound by that stuff of statute of limitations.

02:27 - 43.286 But the applied warranty can be disclaimed by a seller.

02:27 - 46.289 So there could be there could be, it could be sold as is.

02:27 - 48.325 So it doesn't even exist.

02:27 - 50.193 But then you know that, right?

02:27 - 53.230 The buyer to just to start to use point.

02:27 - 57.001 If you got on the website and you saw a camera and the camera said,

02:27 - 00.638 here's a digital camera, as is

02:28 - 04.575 what I'm going to tell you, what it does as is,

02:28 - 07.644 could you bring in unfair trade practices that claim

02:28 - 10.648 because they didn't disclose a bunch of things about the camera of

02:28 - 15.753 if they sold it as it is and they they made a noticeable and maybe not.

02:28 - 17.822 There also has to

02:28 - 20.825 be but they didn't make a particular representation

02:28 - 23.894 about the sell annoyed or how long the camera

02:28 - 26.898 would last.

02:28 - 28.466 Right.

02:28 - 31.469 But as is means I'm I'm taking it

02:28 - 34.705 with any problems that come with it.

02:28 - 36.640 Okay, I think we've got this.

02:28 - 39.644 I'd like you to wrap up, if you would,

02:28 - 42.712 and just,

02:28 - 44.881 there's also the reliance component of the CPO,

02:28 - 46.383 so they would have to show reliance.

02:28 - 48.151 So that would address some of your concerns.

02:28 - 51.389 And other than that, I would thank the court for time.

02:28 - 54.525 Thank you, Mr. Helper.

02:28 - 55.892 Let's hear from Mr.

02:28 - 58.896 Courtney.

02:29 - 02.133 Madam Chief

02:29 - 05.268 Justice and members of the court may please the court.

02:29 - 09.440 My name is Gordon Cooney and I represent the appellee, Ricoh USA,

02:29 - 11.309 members of the court.

02:29 - 16.080 It's undisputed that plaintiff's camera performed properly for nearly five years,

02:29 - 19.849 which is almost four years after the expiration

02:29 - 22.853 of the express warranty that the court has discussed.

02:29 - 28.426 And even beyond the UK's four year limit on implied warranty claims

02:29 - 32.262 and what would be the implied warranty claim here, it wouldn't be fitness

02:29 - 33.430 for a particular purpose.

02:29 - 37.801 That's when the seller knows that there's a specific use by the buyer.

02:29 - 40.737 We had no dealings between the parties here.

02:29 - 44.841 It could potentially be an implied warranty of merchantability

02:29 - 48.813 that their defect, or the problem with the product was so significant

02:29 - 51.849 that it rendered the product unmentionable

02:29 - 54.751 that the express

02:29 - 58.356 warranty in this case did not disclaim implied warranties.

02:29 - 02.426 And so the bundle of rights that the plaintiff got in this case

02:30 - 07.698 was the one year Express warranty, where Rico said if there are any defects

02:30 - 12.203 in materials and workmanship, we're going to pay to repair that.

02:30 - 13.771 Why isn't that?

02:30 - 19.843 Why isn't it, incumbent on a company if you know that if you, you use lens

02:30 - 24.180 A, that camera is going to work for ten years,

02:30 - 28.853 but if you use lens B, the camera is going to work for six years.

02:30 - 32.490 And you know that as the manufacturer, don't you have a duty

02:30 - 38.028 when you sell a camera to somebody to let them know that, hey,

02:30 - 42.098 you can buy this camera, it has lens A, it's going to last ten years.

02:30 - 44.567 But if you buy this camera, which is cheaper,

02:30 - 46.870 it has lens B and it's only going to last six years.

02:30 - 49.874 So that the consumer can make a educated

02:30 - 53.009 decision about which camera they want to purchase.

02:30 - 53.511 So, Your Honor,

02:30 - 58.682 I would say several things in response that first, I think we have to construe

02:30 - 02.319 what the statute focuses on and the statute focuses on,

02:31 - 05.823 and what the 96 amendment focuses on

02:31 - 08.925 was adding the conduct concept of

02:31 - 12.897 not just fraudulent conduct, but deceptive conduct.

02:31 - 17.500 And so what we're talking about here is what does deceptive conduct mean?

02:31 - 22.406 And I can come back to what I think, if you look at the language

02:31 - 24.340 and if you look at the structure

02:31 - 29.547 of the act, if you look at the legislative history of the act, deceptive

02:31 - 32.749 does not mean that,

02:31 - 36.387 a manufacturer who has had no dealings at all,

02:31 - 40.990 with, the consumer has an obligation.

02:31 - 41.158 Yeah,

02:31 - 42.459 but is that really fair,

02:31 - 46.129 since so much of the consumer goods now are purchased over the internet

02:31 - 48.865 and you never have any communication with them.

02:31 - 53.370 And but the question is, has the manufacturer been deceptive?

02:31 - 58.309 And, if you look at the way the statute is written,

02:31 - 01.311 if you look at the legislative history to the amendment,

02:32 - 04.380 if you look at all of the Pennsylvania cases

02:32 - 08.118 that have construed this, and the other courts around the country

02:32 - 12.890 that have construed similar language, no courts have held there is a duty.

02:32 - 15.091 But let's talk about the duty.

02:32 - 17.594 What has you can you finish what you were just saying?

02:32 - 19.529 No. Courts have held there was a duty to.

02:32 - 25.436 There is a pure duty to disclose in the absence of 1 or 2 things, Your honor. One,

02:32 - 28.004 the defendant said

02:32 - 31.909 something that is a half truth that's misleading by omission.

02:32 - 34.644 Or two.

02:32 - 38.849 There is an expectation of disclosure that's created by the law.

02:32 - 42.252 And there are a number of different contexts

02:32 - 45.755 where the law does create, an expectation,

02:32 - 48.759 like remaining silent when

02:32 - 52.596 remaining silent, when that silence,

02:32 - 55.298 constitutes,

02:32 - 58.735 an implied but false representation. Right?

02:32 - 01.604 I mean, you know, those those two things. I guess what I'm getting at.

02:33 - 02.705 Sorry to interrupt you,

02:33 - 06.676 is that those two things are at least in tension with Romeo.

02:33 - 07.911 Right, Romeo?

02:33 - 09.846 Do you think Romeo survives, Greg?

02:33 - 13.883 I do, Your Honor, and I, I do want to come back to Justice

02:33 - 16.853 Monday's question because I think in this context,

02:33 - 20.324 let me say, I think this case is actually quite simple.

02:33 - 24.594 The question of whether Romeo survives in another context.

02:33 - 28.831 I have a long argument about what the statute means, but here the consumer's

02:33 - 32.702 expectation is the one year

02:33 - 35.739 express warranty that the manufacturer gave

02:33 - 39.242 and the four year backstop

02:33 - 42.246 that the UCC gives on Merchantability claims.

02:33 - 44.280 That's the expectation.

02:33 - 47.551 And it is not deceptive for a manufacturer

02:33 - 50.587 to remain silent and not say,

02:33 - 54.358 oh, by the way, this component, it might only last five years.

02:33 - 57.661 That component, it may only last seven.

02:33 - 00.563 A complex product like this

02:34 - 03.567 has hundreds, if not thousands of components.

02:34 - 07.705 What would the disclosure have to be in an automobile or a computer?

02:34 - 11.408 Well, what if the what if what if you layer on top of that,

02:34 - 15.546 disclosure of a component

02:34 - 18.615 that the manufacturer or seller,

02:34 - 21.619 knows to be a problem

02:34 - 25.922 and that the general public, the buyer, would not know.

02:34 - 28.591 And if they did know what influenced their purchasing decision,

02:34 - 30.827 I would say two things about that, Your Honor.

02:34 - 35.832 First, I think the expectation of the parties is set by the warranty.

02:34 - 40.170 And if all plaintiff would have to do to get around

02:34 - 43.406 the temporal limits

02:34 - 47.243 of the warranties that have long been established under the law and under

02:34 - 51.215 the UCC is to allege the defendant, consumers should have known

02:34 - 54.284 that this component

02:34 - 57.288 wouldn't last more than five years.

02:34 - 00.290 And so the defendant should have disclosed that

02:35 - 03.861 even though the only expectation the plaintiff could possibly have had

02:35 - 09.599 is that if it's any kind of a problem with defects in workmanship, it's one year.

02:35 - 12.001 If it's merchantability, it's for years.

02:35 - 14.804 So can I just add just for clarity?

02:35 - 18.574 That's not exactly the end of what your warranty says,

02:35 - 20.009 because the last sentence says

02:35 - 24.381 this warranty policy does not affect the consumer's statutory rights.

02:35 - 28.017 And your Honor, I think what that is referring to clearly

02:35 - 32.723 is statutory rights under, for example, the UCC, which has

02:35 - 35.025 specific

02:35 - 38.761 provisions with regard to implied warranties.

02:35 - 43.200 So why wouldn't it anticipate the Unfair Trade Practices Act?

02:35 - 44.767 That's a statutory right.

02:35 - 48.472 So, Your Honor, I think the question, though, again, is

02:35 - 54.311 is there something deceptive or fraudulent about a manufacturer

02:35 - 58.348 not advising affirmatively that a component

02:35 - 01.352 in the product might

02:36 - 05.522 last only five years or eight years or nine years or ten years?

02:36 - 08.291 And what would that disclosure have to look like?

02:36 - 10.626 Well, that was my question to your opposing counsel.

02:36 - 12.662 I'm not certain what the answer to that is.

02:36 - 16.966 I think, Your Honor, the only appropriate way to think about

02:36 - 20.671 this would be in order to protect itself,

02:36 - 24.241 a manufacturer would have to disclose

02:36 - 27.443 what it understands to be the useful life

02:36 - 31.448 of almost every different component in, its product.

02:36 - 34.952 And what the the FTC has said.

02:36 - 38.822 One of the plaintiff argues that a defendant,

02:36 - 42.292 a manufacturer, should disclose all material facts.

02:36 - 44.428 The FTC has

02:36 - 48.031 specifically rejected that standard under the FTC act.

02:36 - 52.668 This isn't your argument here, that it's not a material defect.

02:36 - 55.471 It's therefore I don't have a duty to disclose.

02:36 - 59.242 And really, our personal law here is just

02:36 - 03.280 purely is does the plaintiff have to have it?

02:37 - 05.181 Does the defendant have to have a duty?

02:37 - 08.718 So, Your Honor, I would say there are several things that

02:37 - 13.524 several arguments that we have that are all in alignment with one another.

02:37 - 16.794 One is,

02:37 - 19.362 the law does not require,

02:37 - 22.031 in order to avoid deception

02:37 - 25.035 for a manufacturer to say

02:37 - 28.971 what the useful life is of components of their product

02:37 - 32.342 that are beyond the express or implied warranty period.

02:37 - 35.446 It is not deceptive to fail to say that you're going to.

02:37 - 37.281 You're going to open up yourself

02:37 - 41.317 to additional liability under the under any contract or whatever.

02:37 - 43.986 If you have to do what you say would be

02:37 - 47.224 which is expressly disclosed, the useful life of your product,

02:37 - 51.461 if that's what the if that's what the unfair trade practice law requires,

02:37 - 54.030 is that every seller has to have a paragraph,

02:37 - 57.034 sort of like disclosing carcinogens in food or something.

02:37 - 59.469 The useful life of this product is five years.

02:37 - 01.404 That becomes an express warrant.

02:38 - 02.572 Exactly, Your Honor.

02:38 - 05.642 And so I think the point I'm making is,

02:38 - 09.413 hey, it's not deceptive to fail to say that

02:38 - 12.816 be it's a completely unworkable standard.

02:38 - 15.351 And see, in this context,

02:38 - 18.255 recognizing the claim even to go forward

02:38 - 22.392 would effectively negate

02:38 - 26.063 the established law that this court has recognized.

02:38 - 29.967 With regard to express and implied warranties,

02:38 - 34.371 asking as a question I mean, I think these are good points.

02:38 - 37.073 I just need to tease this out.

02:38 - 41.344 On the Romeo rubric aspect here.

02:38 - 47.316 So in your in the briefing, there's this irreducible minimum term, right.

02:38 - 49.819 So it's a construct, a hypothetical. Right.

02:38 - 52.722 But but this is posed so we don't know what the proof would be.

02:38 - 55.758 So assuming this irreducible

02:38 - 59.162 minimum scenario where like where the product is not,

02:38 - 04.767 not really what it appears to be, in some sense, or you know, what?

02:39 - 08.538 It appears to be on its face, just not, you know, that car, that car scenario.

02:39 - 09.373 Right?

02:39 - 14.176 Do you'd I assume you do not dispute that

02:39 - 18.481 silence in that scenario could be deceptive.

02:39 - 23.152 And if you do agree to that, it seems to me there's an issue

02:39 - 27.090 because I think Romeo, even in that situation,

02:39 - 32.262 Romeo would mandate an affirmative duty to disclose to get to a jury.

02:39 - 33.930 So am I right about that?

02:39 - 37.100 So, Your Honor, I think, the example that the FTC cites

02:39 - 42.004 it, it posits the possibility it first rejects the notion

02:39 - 46.108 that a materiality standard is workable because the disclosure that would be

02:39 - 50.446 required is so vast that it would be overwhelming

02:39 - 54.350 for the consumer, and it would bury all the important information

02:39 - 58.455 and think about a product like a camera, or a computer, or a car

02:39 - 01.825 that has thousands and thousands of parts with differently useful lots.

02:40 - 04.894 The FTC said.

02:40 - 08.065 There might be some circumstances where

02:40 - 13.936 the product fails to meet even an irreducible minimum

02:40 - 17.641 standard of performance, and the example that the FTC gives is a car

02:40 - 20.343 that only goes 35 miles an hour.

02:40 - 23.347 But the manufacturer says nothing about.

02:40 - 25.414 But here there's

02:40 - 28.919 no issue of irreducible minimum standard of performance.

02:40 - 33.290 This camera performed perfectly for five years

02:40 - 37.561 beyond the express warranty period, beyond the implied warranty period,

02:40 - 41.732 and to say that the irreducible minimum standard of performance

02:40 - 46.570 applies to five years, eight years, ten years down the road

02:40 - 51.775 that completely negates, the protections of the warranty coverage.

02:40 - 56.580 And it should be determined as a matter of law that that is not

02:40 - 59.815 that irreducible minimum standard

02:40 - 04.420 of performance standard has nothing to do with a product

02:41 - 08.557 that may experience difficulties outside the warranty period.

02:41 - 09.725 It's just not relevant.

02:41 - 13.030 And it's not what the FTC was talking about in its standards.

02:41 - 15.197 If liability were

02:41 - 18.201 permitted here, if this case were allowed to proceed,

02:41 - 22.339 manufacturers could not rely

02:41 - 25.574 on the temporal limits of their own warranties.

02:41 - 29.312 And the four year period that the UCC has established

02:41 - 33.549 as kind of the backdrop and think about that.

02:41 - 38.321 Merchantability standard, Merchantability and minimum, standard or performance

02:41 - 41.692 are two sides of the same coin.

02:41 - 44.761 If if a a purchaser buys a product

02:41 - 48.431 that is unmentionable,

02:41 - 50.599 that purchaser has four years

02:41 - 53.637 to discover that performance problem and bring a claim

02:41 - 56.806 that's effectively

02:41 - 59.642 the irreducible minimum standard of performance.

02:41 - 02.545 If the product doesn't perform,

02:42 - 05.081 to a merchant able

02:42 - 08.151 level during four years, there is a warranty claim.

02:42 - 13.323 But the net effect of recognizing a duty to disclose here

02:42 - 19.296 and that the non-disclosure that the plaintiff complains about here is deceptive

02:42 - 23.266 would would absolutely nullify

02:42 - 27.471 settled law with regard to warranty standards.

02:42 - 29.839 Mr. Cooney, we understand the arguments.

02:42 - 31.974 Are there any other questions from the justices?

02:42 - 34.710 Thank you both very much.

02:42 - 37.981 Our next case is Tranter versus Z and tour.

02:42 - 42.151 These consolidated appeals arise from a mass casualty

02:42 - 45.155 accident that occurred on the Pennsylvania Turnpike.

02:42 - 48.457 The issue before the court is whether the underlying cases

02:42 - 51.461 should be tried in Philadelphia, where they were commenced,

02:42 - 54.631 or Westmoreland County, where the accident occurred.

02:42 - 57.466 At around 3:30 a.m.

02:42 - 03.206 on January 5th, 2020, a motor coach bus operated by Z and detour

02:43 - 06.342 was traveling westbound on the Pennsylvania Turnpike

02:43 - 09.346 when the operator lost control of the vehicle.

02:43 - 12.482 The bus struck an embankment at highway speed,

02:43 - 16.085 rolled over, struck the median, and came to rest,

02:43 - 19.823 blocking the entire width of the westbound portion of the turnpike

02:43 - 23.526 approximately 30s.

02:43 - 27.964 After the bus overturned, it was hit by a Fedex ground tractor trailer

02:43 - 32.068 that was unable to come to a complete stop in time to avoid the bus.

02:43 - 33.537 A U.P.S.

02:43 - 36.839 tractor trailer owned by Penske then hit the rear

02:43 - 39.843 of the Fedex ground tractor trailer.

02:43 - 42.478 At the time of the accident, the bus was carrying

02:43 - 46.082 59 passengers from New York to Columbus, Ohio.

02:43 - 49.518 The accident resulted in five fatalities

02:43 - 52.522 and injuries to dozens of bus passengers.

02:43 - 57.060 Plaintiffs commenced their actions in the Philadelphia Court of Common Pleas

02:43 - 01.430 after the pleadings closed, but before discovery, defendants

02:44 - 04.968 filed petitions to transfer the cases to Westmoreland County,

02:44 - 09.406 where the accident occurred and where 13 related cases were pending.

02:44 - 13.909 Defendants sought to transfer based on the doctrine of forum

02:44 - 17.780 non convenient, a legal doctrine that gives a trial court

02:44 - 22.319 the power to decline jurisdiction when in the interest of justice.

02:44 - 25.589 The case should be tried in a different location,

02:44 - 28.592 often referred to as a different forum,

02:44 - 32.695 in support of their motions to transfer defendants file witness

02:44 - 37.801 statements of 40 potential witnesses, including paramedics, fire personnel

02:44 - 41.470 and the Westmoreland County Coroner, stating that they would suffer

02:44 - 46.376 substantial hardship if they were required to travel to Philadelphia for trial.

02:44 - 48.510 The defendants also

02:44 - 52.983 filed reports from the Pennsylvania State Police and the NTSB

02:44 - 57.187 to support their arguments that the case should be tried in Westmoreland County,

02:44 - 00.689 the trial court granted the petitions to transfer

02:45 - 03.660 plaintiffs appeal to the Superior Court of Pennsylvania.

02:45 - 06.762 On appeal, the Superior Court entered

02:45 - 09.766 an order vacating the trial court's orders.

02:45 - 12.969 The court held that the trial court abused its discretion

02:45 - 18.107 when it granted the motions to transfer, because the defendants had failed

02:45 - 22.711 to produce evidence establishing that key witnesses in and around Westmoreland

02:45 - 25.848 County would offer relevant testimony

02:45 - 28.852 that was necessary to the defense.

02:45 - 32.321 The Supreme Court granted allowance of appeal to determine

02:45 - 37.260 whether the Superior Court misapplied the doctrine of forum non convenient

02:45 - 41.096 when it vacated the trial court's order allowing the transfer to

02:45 - 42.232 Westmoreland County.

02:45 - 45.768 In their appeal to the Supreme Court,

02:45 - 49.371 appellants argue that the Superior Court misapplied

02:45 - 54.076 the forum Non Convenient standard when it failed to follow Pennsylvania

02:45 - 59.716 Supreme Court precedent in two cases, Cheeseman and Braddock and Cheeseman.

02:45 - 04.387 The court held that petitions to transfer for form on convenience should be granted

02:46 - 08.058 if the defendant can demonstrate that the plaintiff's chosen forum

02:46 - 11.294 is oppressive or vexatious to the defendant.

02:46 - 14.597 In Braddock, the court held that although mere inconvenience

02:46 - 19.335 is insufficient to support a transfer from form non convenience, the proof

02:46 - 22.471 to support a transfer does not need to be exhausted,

02:46 - 25.442 fully detailed or come in any particular form.

02:46 - 29.913 Appellants argue that instead of following Cheeseman and Braddock

02:46 - 35.251 as it was required to do, the Superior Court created an entirely new standard

02:46 - 39.422 that requires defendants to demonstrate that a key witness to the defense

02:46 - 44.060 would suffer a hardship if required, to litigate in the plaintiffs choice of form.

02:46 - 47.964 In response, appellees argue, among other things,

02:46 - 51.568 that appellants are overly relying on Cheeseman and Braddock

02:46 - 55.705 and ignoring other appellate decisions that construe the doctrine differently.

02:46 - 59.442 They argue that defendants were required to show that plaintiffs choice

02:46 - 02.946 of Philadelphia for trial was both vexatious

02:47 - 06.282 and oppressive, not merely in convenient.

02:47 - 11.354 Finally, appellees argued that the court should consider technological advances,

02:47 - 15.859 including remote testimony and the electronic transmission

02:47 - 18.962 of documents when deciding whether to transfer a case

02:47 - 23.233 for form non convenient and their reply briefs, appellants argue

02:47 - 26.770 that they have a right to have witnesses testify in person at trial,

02:47 - 30.105 and that technological advances should not be grounds

02:47 - 33.108 for taking a wrecking ball to the doctrine of form.

02:47 - 34.109 Non convenience.

02:47 - 37.413 In your honor, may it please the court.

02:47 - 39.648 My name is Robert Tapper Jr.

02:47 - 42.752 I represent Federal Express Corporation in this matter.

02:47 - 44.119 Mr. Palumbo's.

02:47 - 46.422 Represents Penske and Mr.

02:47 - 49.425 Stewart represents UPS.

02:47 - 54.130 On behalf of Fedex, I will argue that the Superior Court misapplied

02:47 - 58.802 the doctrine of forum non convenience in reversing the trial court's order,

02:47 - 02.338 which transferred the underlying actions to the county

02:48 - 05.642 in which the incident giving rise to the claims occurred.

02:48 - 08.310 On behalf of Penske, Mr.

02:48 - 10.012 Palumbo's will address

02:48 - 14.217 the appellee request that the court reconsider the doctrine of forum

02:48 - 18.421 on convenience in light of advanced communication technology.

02:48 - 20.789 On behalf of U.P.S., Mr.

02:48 - 24.828 Stewart will address any remaining arguments that are unique to his client.

02:48 - 28.330 When preparing

02:48 - 33.937 and filing a petition to transfer based upon form nine convenience

02:48 - 40.410 under rule 1006, in February of 2022,

02:48 - 43.980 the North Star was Braddock.

02:48 - 47.282 In 2014, this court

02:48 - 51.721 provided clarity to litigants and discretion to trial courts

02:48 - 54.724 and applying the format on convenience doctrine.

02:48 - 57.960 In particular, this court

02:48 - 01.431 provided five key Guideposts one.

02:49 - 05.400 Rule 1006 does not require

02:49 - 08.371 any particular form of proof,

02:49 - 11.240 and affidavits have never been held

02:49 - 14.244 necessary to obtain transfer.

02:49 - 17.679 Two there is no burden to show

02:49 - 20.683 near the crowning and oppression.

02:49 - 25.320 Three A trial judge need not be told like a child

02:49 - 29.158 how distance in and of itself makes things more disagreeable

02:49 - 32.462 and disruptive to the persons obliged to travel.

02:49 - 37.533 It is not necessary to articulate to a jurist the inherently empirical

02:49 - 41.571 concept that distance and expedience are inversely proportional

02:49 - 47.476 for the interference with one's business and personal life caused

02:49 - 50.779 by the participatory demands of a distant

02:49 - 54.117 lawsuit is patent and number five.

02:49 - 57.854 The trial court can intuit oppressiveness

02:49 - 01.124 from the job titles of the proffered witnesses.

02:50 - 05.661 Of course, Braddock was a wrongful use of civil proceeding case

02:50 - 10.366 against a law firm and its client, with seven witness affidavits

02:50 - 12.035 that describe

02:50 - 15.070 the disruption in personal and financial hardship

02:50 - 18.174 the witnesses would encounter by a trial in Philadelphia.

02:50 - 23.613 The affidavits in Braddock employed nearly identical language

02:50 - 26.849 in describing the hardship of participating at a trial

02:50 - 29.685 approximately 100 miles away,

02:50 - 34.457 this court reinstated the trial court transfer to Dauphin County

02:50 - 38.361 and reversed an embark decision of the Pennsylvania Superior Court.

02:50 - 42.297 In this case, Fedex surpassed

02:50 - 45.301 the Braddock record by a wide margin.

02:50 - 47.970 Importantly, the trial court's decision in this case

02:50 - 52.207 was not manifestly unreasonable, which is, of course required

02:50 - 55.845 in order to reverse under the abuse of discretion, standard.

02:50 - 00.349 Under the deferential standard of review, the Superior Court

02:51 - 04.220 should not substitute its own judgment for that of the trial court,

02:51 - 08.224 even if it would reach a different result.

02:51 - 11.059 This court had cautioned

02:51 - 15.465 in Cheeseman that a transfer petition should not be a tool

02:51 - 20.435 by which a defendant may forestall litigation in the underlying case

02:51 - 24.173 by generating litigation concerning the transfer petition.

02:51 - 28.043 With this court's admonition in mind,

02:51 - 31.914 the defendants in this case promptly submitted to the trial court

02:51 - 35.117 11 affidavits, 32 witness

02:51 - 38.121 statements, Pennsylvania State Police reports,

02:51 - 41.491 and National Transportation Safety Board reports

02:51 - 45.661 taken together, that record

02:51 - 48.865 established that many critical witnesses were in western Pennsylvania

02:51 - 54.037 for a motor vehicle accident occurring 250 miles from City Hall.

02:51 - 00.108 That record included the identity and roles of 13 Pennsylvania

02:52 - 04.747 State Police officers from Westmoreland, Washington and Butler counties.

02:52 - 08.651 Their record established that more than 50 injured parties

02:52 - 11.954 were transported and treated by medical providers

02:52 - 16.626 at six hospitals in Allegheny, Westmoreland and Somerset counties.

02:52 - 20.663 That record established that ten fire and EMS departments

02:52 - 25.968 in Westmoreland and adjacent counties transported more than 50 injured parties.

02:52 - 29.205 After assessing their injuries and treating them at the scene.

02:52 - 34.876 All of that recorded evidence was submitted within the 30

02:52 - 38.848 to 60 day window afforded by the trial court

02:52 - 42.085 to provide evidence on the form nine convenience issue.

02:52 - 46.356 In particular, the trial court permitted the parties to conduct discovery

02:52 - 49.758 for approximately 60 days, limited

02:52 - 52.762 to the issue of form non convenience.

02:52 - 56.566 The trial court thus directed that there would not be any discovery on the merits

02:52 - 00.702 of any claim or defense, and affording 30 days for affidavits

02:53 - 05.907 and 30 days for depositions, again limited to the issue of form non convenience.

02:53 - 08.176 Under Braddock,

02:53 - 11.748 as argued by Fedex and its FNC petition,

02:53 - 15.351 and as explicitly found by the trial court,

02:53 - 18.955 the evidence in Western Pennsylvania was relevant to many topics

02:53 - 22.391 in this case the weather conditions,

02:53 - 26.294 including visibility for an accident occurring at 3:30 a.m.

02:53 - 29.432 on the turnpike without any artificial lighting.

02:53 - 33.302 The road conditions including whether the road surface was dry,

02:53 - 37.740 wet, or slippery slippery on a snowy January night,

02:53 - 41.176 the exact position of the vehicles,

02:53 - 44.280 the location of the bus passengers before and after the collisions,

02:53 - 47.893 including whether they were seated at the front of the bus or the rear of the bus.

02:53 - 53.055 Counsel, I don't mean to cut you off, but the issue, as rephrased

02:53 - 56.324 is your allegation

02:53 - 00.530 that a superior court misapplied the doctrine of of non convenience.

02:54 - 04.167 Can you share with I know their facts in this case, share with us

02:54 - 07.636 how did they miss apply the doctrine for non convenience?

02:54 - 08.637 Let's get to the issue.

02:54 - 14.677 Justice Daugherty, the Superior Court

02:54 - 18.113 misapplied the doctrine because it relied

02:54 - 22.751 on its prior decision in the Emer case and in the amber case.

02:54 - 25.086 First of all, was not factually analogous.

02:54 - 30.058 Emer was a, two vehicle accident in which the plaintiff's vehicle struck

02:54 - 33.996 the rear of a truck that was moving more slowly, in the right lane

02:54 - 40.202 in the amber case, three witness affidavits were submitted, and the,

02:54 - 45.208 experts agreed that the scene was not a contributing factor in the accident.

02:54 - 49.679 This case, of course, involves multiple vehicles, many affidavits,

02:54 - 54.550 and the scene is paramount to the cause of this accident.

02:54 - 58.286 But, your Honor, even more importantly,

02:54 - 01.056 for for for purposes of this court,

02:55 - 04.060 Emer was decided incorrectly

02:55 - 07.263 because it relied on case law

02:55 - 11.400 that either was no longer valid or does not apply under this circumstance.

02:55 - 15.403 And that that, Your Honor, is for three principal reasons.

02:55 - 20.142 First, the Irish decision relied principally on a case

02:55 - 23.412 from the Superior Court in 1987

02:55 - 26.582 called petty versus Suburban General Hospital.

02:55 - 31.320 In this court's jurisprudence, over 25 years,

02:55 - 37.326 from 1989 to 2014, from a person to Scola to Cheeseman to Braddock,

02:55 - 40.829 this court never, adopted

02:55 - 43.833 the so-called key witness requirement.

02:55 - 45.600 But that's what's concerning me.

02:55 - 49.638 Share with me how you what's your concern or what's your argument

02:55 - 51.072 against the Superior Court

02:55 - 55.044 adding this new requirement of identifying key witnesses?

02:55 - 00.582 My concern, Your Honor, is it is that it is inconsistent

02:56 - 04.654 with this court's precedent, and it is based upon law

02:56 - 09.157 that does not apply and should not apply to rule 1006.

02:56 - 11.560 Intrastate transfers.

02:56 - 14.563 The the

02:56 - 17.899 source of the case law on which the Amber court

02:56 - 21.237 relied was, was, was, as I mentioned, the petty case.

02:56 - 25.507 But the petty case in turn relied on a federal Third

02:56 - 28.611 Circuit case, Renault versus Piper Aircraft,

02:56 - 31.880 and that Reno versus Piper aircraft

02:56 - 36.819 case involved the dismissal of a case in federal court

02:56 - 41.290 because, an interstate dismissal based upon improper form

02:56 - 44.460 involved a plane crash that occurred in Scotland

02:56 - 48.397 and in the petty case in 1987,

02:56 - 54.270 the Superior Court talked about the federal law as it existed under Reno,

02:56 - 58.640 and it also talked about public interest factors, which this court held.

02:56 - 01.176 And Cheeseman were not to be considered.

02:57 - 03.979 When you take into when you take together

02:57 - 06.615 that, the Superior Court

02:57 - 09.619 in 1987 was relying on a

02:57 - 14.155 since repudiated public interest factors, and as well as the fact

02:57 - 18.060 that it was relying on federal court cases involving the dismissal

02:57 - 21.329 of an interstate dismissal,

02:57 - 24.099 your honor, I think that the 1987,

02:57 - 28.270 ruling simply not is only inconsistent

02:57 - 31.874 with with the precedents of this court, but should not apply.

02:57 - 36.379 This court addressed for non convenience in occurs

02:57 - 39.581 in scale out and Cheeseman and in Braddock.

02:57 - 40.349 And at no point

02:57 - 44.419 did it did it expressly or impliedly hold what was a key witness requirement.

02:57 - 49.290 What would you suggest that we rule as to what burden

02:57 - 53.129 the defendant would have to show for upset, oppressiveness, or vexation?

02:57 - 57.033 I think that the court in Bray to,

02:57 - 02.438 set forth the appropriate rule because it, provided

02:58 - 07.443 clarity to the litigants in not requiring any particular form of proof,

02:58 - 12.848 and at the same time clearly stating that affidavits have never been required.

02:58 - 17.252 And it provides the trial court with a discretion

02:58 - 21.356 and looking at the evidence here, Your Honor, there were 11 affidavits.

02:58 - 23.191 There were 32 witness statements.

02:58 - 27.363 There were Pennsylvania State Police reports, and there were NTSB reports,

02:58 - 30.633 all provided to the court in February

02:58 - 34.203 of of on February 25th, 2022,

02:58 - 37.405 for lawsuits that were filed, in November,

02:58 - 40.409 and December of 2021

02:58 - 43.745 with the court with with keeping in mind this court's

02:58 - 46.949 admonition in Cheesman that

02:58 - 48.584 a motion

02:58 - 51.987 to transfer should not be used as a tactic to forestall litigation,

02:58 - 56.091 as most members of this court surely where there's an early case

02:58 - 57.726 management conference for courts filed

02:58 - 01.564 in Philadelphia County and in a finite period of time is provided for discovery.

02:59 - 04.566 So the court was able

02:59 - 09.004 to intuit from all the information that we provided, that

02:59 - 13.675 the witnesses, that there were many witnesses, surely dozens

02:59 - 19.681 of witnesses in western Pennsylvania that had relevant evidence to this case.

02:59 - 22.584 Was there anything here in Philly?

02:59 - 24.486 Any witnesses? Anything?

02:59 - 25.820 Not not not at all, Your Honor.

02:59 - 30.258 Which which makes it distinguishes is from some of the Superior Court cases

02:59 - 33.895 where perhaps a party is in Philadelphia County

02:59 - 36.164 or there's an expert in Philadelphia County,

02:59 - 39.168 or there's a treating physician in Philadelphia County.

02:59 - 41.870 All of that is conspicuously absent here.

02:59 - 43.505 All of that is conspicuously absent.

02:59 - 46.141 Counsel, can I just follow up?

02:59 - 49.444 In, Braddock, there is a footnote,

02:59 - 53.149 I that that really, I think, addresses what's at the heart of this case.

02:59 - 55.817 And the footnote

02:59 - 58.954 essentially says the Superior Court presumed

02:59 - 03.225 that the affiant testimony would be admissible.

03:00 - 07.096 Relevant non-cumulative and necessary.

03:00 - 10.932 You weren't suggesting that that

03:00 - 13.668 that they are not considerations

03:00 - 16.672 that the trial court has to take into account?

03:00 - 22.845 You're, opposing the notion that there has to be specific affidavits

03:00 - 26.414 that identify the precise role

03:00 - 29.418 that each and every witness would play.

03:00 - 31.553 Correct. I think that's right. You're right. Okay.

03:00 - 35.123 I mean, because and you've said it a couple of times and,

03:00 - 39.060 I mean, the trial court here could certainly intuit

03:00 - 43.198 that these witnesses, many of them were key witnesses.

03:00 - 44.666 You could call them key witnesses.

03:00 - 47.135 You could call them necessary witnesses.

03:00 - 51.639 But they were at the scene of an accident where the cause was totally unknown

03:00 - 54.643 and they were investigative officers, etcetera, etcetera.

03:00 - 58.747 I mean, I think, like the lesson from Braddock

03:00 - 03.384 as it's extended, is you have to give the trial court credit to be able

03:01 - 08.190 to intuit from evidence of record the importance of these witnesses.

03:01 - 08.891 Okay.

03:01 - 12.394 So you don't disagree with that, do you know, Your Honor?

03:01 - 12.995 No, you're right.

03:01 - 17.065 I sense that it would be, beyond that to,

03:01 - 20.236 to almost require complete discovery

03:01 - 23.939 to have to be more specific than in your honor.

03:01 - 24.974 That's why

03:01 - 28.943 I think I've made reference to Cheeseman on, on on two separate occasions.

03:01 - 29.944 Hold on just a minute.

03:01 - 39.854 That's to allow the viewers

03:01 - 42.858 to know where in Philadelphia.

03:01 - 46.394 Objection.

03:01 - 48.363 Or Pittsburgh

03:01 - 50.865 or Harrisburg

03:01 - 52.000 police. Continue.

03:01 - 55.703 Your honor, I think that's probably why I have made reference to Cheeseman

03:01 - 57.605 already on two separate occasions.

03:01 - 02.711 And that is that the motion to transfer, I think the case law suggests to us

03:02 - 06.315 should be filed at the at the earliest possible time.

03:02 - 11.119 And when you have, as we did in this case, we had access to Pennsylvania

03:02 - 14.757 State Police reports, access to NTSB reports,

03:02 - 18.793 and we filed the petition at the earliest juncture.

03:02 - 23.498 So the so the parties could know where the case would be litigated,

03:02 - 27.469 whether it be in Philadelphia County and Westmoreland County, so that when we start

03:02 - 31.205 started the process of deposition discovery, in this case,

03:02 - 34.209 we would know if we were in Westmoreland County or Philadelphia County.

03:02 - 38.447 And I don't think that, in thinking about this,

03:02 - 42.685 I don't think that a motion to transfer is supposed to be akin

03:02 - 46.788 to a motion for summary judgment, where at the end of the case, after

03:02 - 49.792 you have a fully developed record under rule 1034,

03:02 - 52.760 you file a motion with all the affidavit, with all the depositions

03:02 - 54.362 attached to you make argument.

03:02 - 58.766 The idea under rule 1006, I believe, is to file

03:02 - 02.203 the petition at the earliest possible juncture when it can be done.

03:03 - 03.105 So in good faith.

03:03 - 08.444 And I think that the trial court record in order in this case demonstrates,

03:03 - 11.579 the practical practicalities associated with

03:03 - 15.985 I think I honestly, I, I agree with you and thank you percent.

03:03 - 20.822 I mean, I think what the Superior Court did here was created an evidentiary burden

03:03 - 25.560 that this court has never, indicated existed in these types of motions.

03:03 - 29.097 But that's different than saying that the evidence of record doesn't

03:03 - 32.935 have to support the A finding

03:03 - 36.070 that there are key and necessary witnesses

03:03 - 39.074 that are located in another form.

03:03 - 41.943 I think that's what the trial court found here.

03:03 - 44.779 Correct. And isn't that what Ammar did also?

03:03 - 49.985 I mean, you know, Elmer, really I said it's important to identify

03:03 - 55.523 something that makes the witnesses necessary because their inconvenience

03:03 - 59.027 is more important than maybe a dozen other witnesses

03:03 - 02.030 who are really not necessary or they're cumulative.

03:04 - 05.199 So I think this is just the development of an evidentiary standard

03:04 - 09.438 that's beyond the realm of anything that this court has done.

03:04 - 12.206 You agree?

03:04 - 13.142 I do agree with that, Your Honor.

03:04 - 20.049 I think that that under what what the court did was

03:04 - 23.084 look at not only the Petit case

03:04 - 26.755 that I mentioned earlier, which referred to a federal court case

03:04 - 29.958 and a third circuit case and an instruction from the Third Circuit

03:04 - 33.762 on a, dismissal for an interstate transfer.

03:04 - 39.468 But the Amer case also looked at, ironically cited the poquito case.

03:04 - 42.670 And poquito is very similar to Reno.

03:04 - 45.674 It's a it's an air crash that occurred in Portugal

03:04 - 50.445 and and and applied principles that would apply under section

03:04 - 54.049 5322 for a dismissal of a case.

03:04 - 59.253 And I think that, the burden should be higher for,

03:04 - 02.858 for an, for dismissal of a case based upon an interstate transfer.

03:05 - 05.060 We're talking about an intra state

03:05 - 07.195 transfer here to a

03:05 - 11.099 more convenient, a convenient a form that's more convenient

03:05 - 14.569 for the parties and more important to the more convenient.

03:05 - 16.604 Excuse me, to the witnesses.

03:05 - 19.407 And, you know, maybe we aren't saying the same thing because I don't look

03:05 - 22.945 at this actually as a burden of proof issue.

03:05 - 28.050 I mean, I think what the standard is, is that there has to be evidence of record,

03:05 - 33.421 not affidavits necessarily, not anything of the evidence of record

03:05 - 39.393 to support the trial court's decision that the witnesses who are at play in

03:05 - 43.432 this case are relevant, their testimonies admissible.

03:05 - 47.636 It's necessary, to the adjudication of the case.

03:05 - 51.739 Actually, it's interesting because that footnote that I referenced

03:05 - 57.212 that appears in Braddock with Braddock, actually with the trial court sideways

03:05 - 00.582 and we recognize that these are key witnesses.

03:06 - 04.552 So, I mean, I don't think this is a burden of proof.

03:06 - 08.457 I think however you do it, you have to establish that these are

03:06 - 12.394 important witnesses or key witnesses who are going to be inconvenience.

03:06 - 16.598 No, Your Honor, I think you have to establish that they're their witnesses.

03:06 - 22.337 When a, you know, for whenever, and we can we can

03:06 - 26.875 sometimes, you know, dictionary definitions are helpful, at least to me.

03:06 - 31.812 So I was looking at the Webster definition of, of a witness.

03:06 - 37.019 And it's one who gives evidence and one who has personal knowledge of something.

03:06 - 40.087 And the,

03:06 - 43.591 the case is from this court that I think

03:06 - 48.763 the Superior Court uses various synonyms to describe what this witness should be.

03:06 - 52.633 It was critical key, but we didn't use key.

03:06 - 54.702 We didn't we did not use the word key.

03:06 - 56.637 We use necessary. Correct.

03:06 - 00.841 So so I think that to that point we'll go ahead and finish your sentence.

03:07 - 02.310 I'm sorry.

03:07 - 05.547 No, Your Honor, what I was simply going to say was, was that,

03:07 - 10.685 it's a very, very getting back to Chief Justice Todd's point.

03:07 - 13.555 It's very difficult to know, if not

03:07 - 16.657 highly improbable, to know

03:07 - 21.063 at the outset of the case how material a particular witness might be.

03:07 - 25.200 The 13 state troopers whose names are listed at,

03:07 - 28.270 this record at 705,

03:07 - 33.242 what exactly they know in terms of the witness,

03:07 - 37.446 summaries, the statements, the measurements, the photographs,

03:07 - 39.880 those aren't clearly known

03:07 - 43.285 and will not be known until substantial discovery is completed.

03:07 - 48.356 So, so so, Your Honor, I don't know, maybe we are saying different things

03:07 - 49.024 because it be.

03:07 - 52.026 I mean, because let's say that the witnesses that you listed

03:07 - 55.430 were the 72 nurses who treated,

03:07 - 00.134 the plaintiff, a plaintiff.

03:08 - 00.902 Okay.

03:08 - 02.937 Are they key witnesses?

03:08 - 06.874 So it's 72 nurses who, during the course of the hospital

03:08 - 10.579 stay, came in and out of the room over the course of the 25 days.

03:08 - 12.346 They be key witnesses.

03:08 - 14.782 They would. It's very unlikely that they would be.

03:08 - 17.718 So we aren't saying we see we are saying the same thing.

03:08 - 21.822 I mean, there's an intuitive nature to what the trial court does

03:08 - 23.124 in this situation.

03:08 - 27.963 Anyone who has ever been on this part of, interstate state

03:08 - 32.033 76, in Westmoreland County would understand

03:08 - 36.705 the critical nature of the people who did the investigation on the scene

03:08 - 41.409 and the accident reconstruction people and those people who took the measurements

03:08 - 43.044 and things of that nature.

03:08 - 47.516 And a judge in Westmoreland County is certainly, going to have that.

03:08 - 50.786 And the judge in Philadelphia is certainly going to understand that

03:08 - 55.222 that truly would not be the case in the other forum.

03:08 - 59.260 So, I mean, there is an intuitive nature, but I still think that the witnesses

03:08 - 04.465 have to be, more than cumulative,

03:09 - 09.770 informational types of, witnesses in a lawsuit. Yes.

03:09 - 13.140 I think they certainly need to have relevant evidence.

03:09 - 17.511 And until deposition discovery is really complete, though, Your honor,

03:09 - 20.716 I don't know if you would know that whether they were cumulative or not.

03:09 - 23.451 I mean, using some of the

03:09 - 26.455 depositions that were ultimately submitted in this case,

03:09 - 31.726 one of the paramedics treated six of the plaintiffs.

03:09 - 36.097 One treated five as the plaintiffs, one only treated for the plaintiffs.

03:09 - 39.700 But what, is really,

03:09 - 43.838 interesting or compelling about her testimony is she was the one who

03:09 - 50.344 treated the family of the, young lady, the girl who was missing at the time.

03:09 - 51.512 And it was all determined.

03:09 - 53.881 She suffered fatal injuries in the accident.

03:09 - 59.187 So she was with that family in the minutes after this horrible tragedy.

03:09 - 03.692 And unless and unless and until the record is developed,

03:10 - 08.162 one will not know how important that that testimony may be.

03:10 - 12.633 How key that testimony may be, whatever adjectives one uses.

03:10 - 16.637 But I think that what what the Superior Court did here and did in

03:10 - 21.443 Emer was impose a very but but the way that it described it

03:10 - 26.381 in terms of it even suggests that in the witness affidavits themselves

03:10 - 29.316 they should be describing why they're key witnesses

03:10 - 32.320 or how their testimony can be helpful to the defense.

03:10 - 34.955 And I think that's that's rife with problems.

03:10 - 38.794 If you're asking a disinterested witness to provide

03:10 - 42.330 in an affidavit some affirmation as to why

03:10 - 45.867 their testimony could be important to one party or another in a case.

03:10 - 47.802 Justice Mundy had a question

03:10 - 52.040 that I'm glad that I let you, continue, because that was exactly,

03:10 - 57.044 my issue with some of the witnesses listed in this case.

03:10 - 00.848 Seem like you could come through a medical record and come up with 30

03:11 - 07.354 or 40 witnesses that not necessarily would be called at the trial of this case.

03:11 - 10.525 And different than Cheeseman and different than Braddock.

03:11 - 13.761 Shouldn't there be some concern that in this case,

03:11 - 17.031 maybe for the first time before our court, we have a situation

03:11 - 20.569 where there is about, I think you said 50 injured parties.

03:11 - 24.038 I didn't count the caption, but there's a substantial

03:11 - 29.211 amount of parties that are involved as the plaintiffs in this case.

03:11 - 33.147 And we know that first and foremost, the plaintiffs

03:11 - 37.319 choice of form should be given some some weight.

03:11 - 40.055 And so can you address that?

03:11 - 43.190 Certainly, your honor, please.

03:11 - 45.292 The,

03:11 - 47.828 there is no question that the law from this court

03:11 - 52.399 and as applied in the lower courts, is that the plaintiffs choice of form

03:11 - 57.439 is to be given deference, but it is not absolute.

03:11 - 03.210 And in this case, as as was pointed out by Justice Wecht earlier,

03:12 - 06.281 there is simply no connection to Philadelphia County.

03:12 - 08.549 None of the plaintiffs are from Philadelphia County,

03:12 - 10.885 and none of the witnesses are from Philadelphia County.

03:12 - 14.421 So while deference, should be given,

03:12 - 18.126 I think that the cases from this court

03:12 - 21.228 have also said that the FMC doctrine

03:12 - 25.267 is a necessary counterbalance to ensure fairness

03:12 - 28.769 and practicality,

03:12 - 32.640 and to guard against a seriously inappropriate forum.

03:12 - 36.677 And I think, under the facts of this case, for an accident

03:12 - 40.581 that occurred 250 miles from City Hall, that,

03:12 - 44.519 that that that Philadelphia County is a seriously and appropriate forum.

03:12 - 49.023 Mr. Tapper, could you explain to me,

03:12 - 52.761 what amount of consideration we should give

03:12 - 57.332 to the advances in technology and availability for remote testimony?

03:12 - 00.200 Yes, I am, I am happy to do that.

03:13 - 03.204 Oh, I'm sorry, your other your other, Mr..

03:13 - 03.705 Oh, no.

03:13 - 06.440 We'll wait for him. I'm sorry. I was planning to address that.

03:13 - 07.242 I'll wait for him.

03:13 - 10.245 Thank you.

03:13 - 11.546 Someone else. So.

03:13 - 14.549 But also going to address the abuse of discretion ensures that.

03:13 - 19.721 No, Your Honor, that that certainly said I have not adequately addressed that.

03:13 - 21.488 I would like to.

03:13 - 23.991 I guess that's my point. You know the focus.

03:13 - 25.259 I understand the issue about this key

03:13 - 28.263 witness language that the Superior Court uses.

03:13 - 31.332 But you identified virtually

03:13 - 34.336 every witness, say, for the plaintiffs

03:13 - 37.906 that are going to be called in this case, right.

03:13 - 40.708 We try to identify as best as you could

03:13 - 43.778 earlier all the facts, all the factual witnesses.

03:13 - 45.079 Right. So non-expert.

03:13 - 46.447 Yeah, I would assume they're,

03:13 - 49.484 you know, whether they're all important or some of them are important.

03:13 - 52.252 We have to agree there are important ones in there. Right.

03:13 - 52.921 Is there any dispute

03:13 - 57.558 that there are important ones in that list that you came up with, your honor?

03:13 - 58.926 I don't think so.

03:13 - 03.999 And I think that there was that's why, it's in particular

03:14 - 08.035 I think it's footnote 11 of the of the Superior Court opinion in this case

03:14 - 12.040 where certain excerpts were taken from the depositions

03:14 - 15.810 of, of the of the nine witnesses who were taken to the effect.

03:14 - 17.611 Well, you know, I didn't see the accident.

03:14 - 20.447 I don't think I'm an important witness. Something like that.

03:14 - 25.452 Well, that will ultimately be up to the court to determine at a trial

03:14 - 28.456 whether someone has relevant and admissible testimony.

03:14 - 29.124 And I give you

03:14 - 29.958 I mean, I don't I don't

03:14 - 31.792 I don't believe by the time you get to that point

03:14 - 34.194 that the judge decides whether a witness is important or not,

03:14 - 37.198 they decide whether they have relevant and admissible evidence.

03:14 - 38.932 Yes. Yes, you're right.

03:14 - 42.703 And that's why I gave the example of the one paramedic who one up treating

03:14 - 47.676 the family of this, of this young, young girl who was fatally injured.

03:14 - 49.910 And she was with that family.

03:14 - 53.615 And in the minutes after this accident, who at the time she was she was missing.

03:14 - 58.819 And I don't think until you start the deposition discovery process in a mass

03:14 - 03.425 casualty case, do you know exactly which witnesses will be providing

03:15 - 06.895 particularly relevant test or how relevant the testimony?

03:15 - 09.363 But I'm trying to figure out where the Superior Court,

03:15 - 11.131 I'm trying to figure out where the Superior court,

03:15 - 14.101 I think I read the opinion correctly, where the Superior Court said there was

03:15 - 15.303 an abuse of discretion,

03:15 - 18.138 was saying that the

03:15 - 21.542 Superior Court failed to apply.

03:15 - 23.410 This key witness paradigm

03:15 - 27.916 is that the only abuse of discretion that they basically they're

03:15 - 30.985 they didn't follow the law, the trial court didn't follow the law.

03:15 - 34.889 They didn't they didn't analyze each witness to determine which ones were key

03:15 - 38.158 and didn't have the right number of key witnesses.

03:15 - 41.162 I mean, is that is that the abuse of discretion that's been identified?

03:15 - 43.030 Yeah, I believe so, Your Honor.

03:15 - 46.968 I think it it obviously needs to be manifestly unreasonable,

03:15 - 52.140 but but but here and it it also if there's any proper basis

03:15 - 55.442 on which to affirm the trial court,

03:15 - 58.446 that's what should occur under the abuse of discretion standard.

03:15 - 01.348 And here, Judge

03:16 - 05.019 Cohen found that the state troopers,

03:16 - 09.090 the emergency medical providers, the medical providers themselves,

03:16 - 14.996 the investigators all had relevant evidence on

03:16 - 18.999 he listed 8 or 9 specific topics, whether they be the road

03:16 - 22.504 conditions and the weather conditions and the passenger conditions and so forth.

03:16 - 26.340 He listed all of those and gave a couple of example

03:16 - 29.943 specific examples, of deposition testimony.

03:16 - 31.145 And I submit that

03:16 - 35.382 that instead of giving the deference that, that the Superior Court should have,

03:16 - 38.586 under the circumstance, substituted its own judgment

03:16 - 43.224 and reviewed the record in a way, as advocated by the plaintiffs,

03:16 - 46.426 that that diminished the importance of that testimony

03:16 - 47.895 and looked at it through a different prism.

03:16 - 52.065 And I think that standard of his view is is paramount.

03:16 - 53.434 So that if

03:16 - 55.436 in ruling in

03:16 - 59.306 this case, I think that, as I said at the outset,

03:16 - 04.345 I think the clarity, to the litigants that Braddock afforded and the discretion

03:17 - 08.081 to the trial courts operator before it was, was the right balance.

03:17 - 11.084 And I think that, it was not,

03:17 - 14.656 while it may have been, I'm sure,

03:17 - 18.126 looking at the 1987 decision and Perry

03:17 - 22.463 or looking at the the 2009 decision and but Vaccaro

03:17 - 26.467 I mean, is the language of the superior court cites in and I'm or in this case

03:17 - 30.104 it exists, but it exists from a completely different context

03:17 - 33.775 and a completely different standard and a completely different issue,

03:17 - 36.945 which is a 53, 22 dismissal.

03:17 - 40.215 And it involves,

03:17 - 42.482 principles that this court,

03:17 - 45.719 specifically, disavowed and Cheeseman.

03:17 - 47.921 That is the public interest factors. Yeah.

03:17 - 48.323 All right.

03:17 - 49.356 I think we've got it.

03:17 - 51.960 Thank you. Let's hear from, Mr. Columbus.

03:17 - 57.332 Thank you.

03:17 - 00.535 Good afternoon.

03:18 - 03.538 Your honors may please court Robert Columbus on behalf of Penske

03:18 - 06.540 and your honors, I'm here to address the plaintiff's

03:18 - 09.576 argument that modern communication technology

03:18 - 13.214 makes the forum non convenience doctrine questionable as a whole.

03:18 - 18.152 Plaintiff in their briefs have, asked the court to reconsider

03:18 - 21.154 the application of the doctrine and evolve the factors

03:18 - 24.158 based on this communications practice.

03:18 - 26.760 The first point that I'd make on this, Your Honor, is that

03:18 - 29.731 it is not the question that's before the court.

03:18 - 33.635 And what this court accepted for review was the specific question of whether

03:18 - 38.806 the Superior Court misapplied the doctrine by adding the key witness requirement.

03:18 - 41.341 Isn't it subsumed in the question?

03:18 - 44.645 I don't think it's subsumed to the extent that what plaintiff is asking for

03:18 - 48.749 is a complete revision to the form nine convenience factors,

03:18 - 52.954 which is what I understand to be in plaintiff's brief to the extent that,

03:18 - 57.759 the question is what Your Honor asks, which I think is a good question.

03:18 - 59.893 What is the role of technol

03:18 - 03.697 of communication technology in the analysis that certainly is subsume?

03:19 - 04.698 I agree with that.

03:19 - 07.267 So I'm specifically addressing the court case.

03:19 - 10.038 The way I phrased it is, okay. The way you phrase it is right

03:19 - 13.440 on page 18 of the plaintiffs brief.

03:19 - 15.642 I see them to be suggesting something very different.

03:19 - 19.079 I see, which is that this the court should revise and reconsider

03:19 - 25.353 the whole doctrine, given that today anybody can testify live by remote video.

03:19 - 28.588 And I would respectfully suggest that does not

03:19 - 30.924 that does not justify reconsidering the doctrine.

03:19 - 32.626 First of all, it's not before the court.

03:19 - 35.662 It wasn't that what issue was not preserved below wasn't

03:19 - 38.800 raised in opposition to the forum non convenience motion.

03:19 - 40.400 And so therefore the trial judge

03:19 - 44.372 in the Superior Court did not exercise any discretion around that question.

03:19 - 47.074 But on the merits itself.

03:19 - 51.078 This court has repeatedly expressed a strong preference

03:19 - 55.083 for live in-person testimony at a trial.

03:19 - 56.883 That's what a trial is.

03:19 - 02.256 And to the extent that the availability of remote video technology,

03:20 - 06.660 is a new a new thing, new technology, it doesn't change

03:20 - 08.228 the very nature of a trial.

03:20 - 13.568 This court went back to in-person trials in 2021 for a reason, though.

03:20 - 17.204 And it also, kind of removes the discretion

03:20 - 20.273 from the trial lawyers as to how to try their case.

03:20 - 20.975 Exactly. Right.

03:20 - 23.143 That's fundamentally there's an unfairness here

03:20 - 27.014 because on both sides, the state of play here.

03:20 - 30.617 Is that what we well, we may not be able to identify

03:20 - 33.587 specifically which witnesses will come from Westmoreland.

03:20 - 37.824 We know that all of the eyewitnesses, any of the important witnesses,

03:20 - 38.292 will be there.

03:20 - 41.295 And so the defendants are in a position where they need to either

03:20 - 44.866 drag these witnesses to Philadelphia, whichever ones they end up being,

03:20 - 48.336 or choose to present them remotely

03:20 - 51.572 live or, by video deposition.

03:20 - 56.777 And none of those is a fair choice to put on just one side of the case,

03:20 - 59.814 and it's all the result of the plaintiffs choice of forum.

03:21 - 02.482 So it's a it's an unfair and oppressive choice.

03:21 - 07.621 And that's why the trial judge can consider in the in the mix of factors

03:21 - 11.992 that Braddock sets forth and in the mix that has already been discussed by Mr.

03:21 - 15.629 Knepper, it can consider the technology.

03:21 - 19.199 And it might I could even imagine a situation where the court said,

03:21 - 23.070 okay, there's one witness, that witness has some relevant testimony

03:21 - 26.641 and they may need to testify remotely, but that won't be burdensome.

03:21 - 30.111 But in a situation like this where every single

03:21 - 31.946 potentially

03:21 - 34.949 key witness, every eyewitness, the crash is remote,

03:21 - 38.786 the court is well within its discretion to do what Judge Cohen did, which

03:21 - 42.523 is to say that it would be oppressive to keep the case in Philadelphia.

03:21 - 46.827 Thank you very much, Your Honor.

03:21 - 49.831 Thank you.

03:21 - 53.066 Yes. Oh, do you want to do it now?

03:21 - 54.901 After I

03:21 - 58.573 go? Before you begin, I want to thank you for your,

03:21 - 01.808 giving your time so generously to the seminar.

03:22 - 05.946 This on involving young lawyers, in oral argument

03:22 - 08.882 and how they can make themselves available for that.

03:22 - 13.253 And I think we have in our audience some of the, young lawyers

03:22 - 15.922 who are attending the Pennsylvania Defense Institute

03:22 - 18.592 seminar this afternoon so they can hear you in action

03:22 - 21.195 and then hold you to it later on this afternoon. But

03:22 - 23.630 thank you for your

03:22 - 27.101 generous, generosity and giving your time to that.

03:22 - 29.669 Oh, thank you very much, Justice Donohue.

03:22 - 31.671 It's an honor and a privilege to be here.

03:22 - 33.740 Maybe it's a little bit more pressure.

03:22 - 35.342 I'll do the very best I can today.

03:22 - 40.381 I get the honor of going last, and we'll see what we can do with that position.

03:22 - 43.216 I just want to comment on a few things.

03:22 - 45.152 I thought it was interesting.

03:22 - 48.222 Justice Brooks said when you brought up the standard of review.

03:22 - 51.959 And that's initially what was I going to comment on right off the bat?

03:22 - 57.631 Many, many, many years in my legal, career, I had the honor

03:22 - 01.969 of clerking with two appellate judges, Robert Byer and Rochelle Friedman.

03:23 - 07.708 And while that was many years ago, the first thing that I was taught,

03:23 - 10.710 as a brand new greenhorn lawyer

03:23 - 14.549 was that the standard of you was where you started your journey.

03:23 - 18.151 And in this case, the Superior Court did that.

03:23 - 22.123 When they reviewed Judge Cohen's decision, they cited it right off the bat.

03:23 - 25.158 Then they turned around and, in my opinion, did a deep

03:23 - 26.726 dive in the affidavits.

03:23 - 28.628 They criticized the affidavits.

03:23 - 31.765 They basically decided not to reference other material

03:23 - 34.802 that Judge Cohen took to review, including the reports

03:23 - 38.071 and the National Traffic Safety Board information,

03:23 - 41.642 which provided a plethora of information to allow him to make a decision

03:23 - 44.912 based on the totality of the circumstances.

03:23 - 48.081 Then they, in our opinion, and I would suggest they substituted

03:23 - 51.986 their judgment and conclusions, for the trial judge.

03:23 - 54.988 And they basically reversed the decision.

03:23 - 59.427 If this was not a de novo review of the evidence, I don't know what was,

03:24 - 04.966 in our opinion, Justice Cohen, reviewed all of that, uses common sense

03:24 - 09.537 and decided that this case, should be transferred to Westmoreland.

03:24 - 13.006 Conversely, if he would have done that same drill

03:24 - 17.211 and he would have decided that this case remained in, Philadelphia,

03:24 - 21.214 I think it would be hypocritical for us to turn around and say, well, there you go.

03:24 - 23.316 He abused his discretion even. No.

03:24 - 26.320 He looked at the city for the exact same information.

03:24 - 29.956 I think it's a very important standard, which was taught to me by those two fine

03:24 - 30.691 jurists.

03:24 - 34.662 And I would suggest that that's exactly what the Superior Court did. Well

03:24 - 37.564 that's interesting.

03:24 - 40.200 Are you saying that,

03:24 - 43.271 regardless of what Judge Cohen had determined,

03:24 - 47.340 you would have.

03:24 - 50.777 Opined that the Superior Court would necessarily ratify that?

03:24 - 55.148 I mean, I would have thought you would have argued that, had he had

03:24 - 59.220 Judge Cohen here in Philadelphia ordered the case.

03:25 - 04.691 To stay in Philly, that you would have felt

03:25 - 09.330 that was an abuse of discretion given the witnesses and everything in Westmoreland?

03:25 - 10.764 No. Personally, Your Honor,

03:25 - 14.435 obviously, our client's as a defendant's, we we would be sorry that we lost,

03:25 - 18.004 but I think we have to honor and look at the what the standard

03:25 - 22.143 of review of that trial judge would be if we were to appeal that decision.

03:25 - 26.414 And that's what I find troubling, is the fact that he did a very,

03:25 - 28.014 thorough job.

03:25 - 29.783 He said it forth in his opinion.

03:25 - 34.020 And yet the superior Court turned around and quite frankly, in our opinion,

03:25 - 35.155 and we would suggest

03:25 - 38.592 it has a nova review of that which we do not seek was appropriate.

03:25 - 41.861 I mean, I just found that concession

03:25 - 45.466 curious because I, I, I'd be surprised that

03:25 - 48.601 you seem to suggest that,

03:25 - 51.605 discretion could not be abused.

03:25 - 55.408 No, I think absolutely discretion, can be abused

03:25 - 58.746 depending on what is set forth in the opinion by the trial judge.

03:25 - 00.780 It's a trial judge turns around and admits

03:26 - 02.382 that they didn't review much of anything.

03:26 - 05.919 I think when you look at that record, then the Superior Court

03:26 - 09.656 would be able to say that he or she did not do this, or he or she did not.

03:26 - 13.460 I think the decision that was set forth by Judge Cohen adequately sets

03:26 - 17.964 forth everything that he did when he ordered justice.

03:26 - 20.367 So let's let's hold off just a moment. Just.

03:26 - 23.370 The only way

03:26 - 26.806 I understand it that the that the Superior Court was able to get to

03:26 - 30.810 abuse of discretion was by suggesting that or not even suggesting holding

03:26 - 35.850 that the trial judge committed an error of law somehow.

03:26 - 40.688 She didn't apply the right,

03:26 - 44.791 you know, I mean, the minute the minute you start

03:26 - 48.027 putting guardrails on abuse of discretion, it's no longer an abuse of discretion,

03:26 - 51.432 but but somehow, some way that there's this legal doctrine of key witness,

03:26 - 55.602 on top of the fact that the affidavit of the key

03:26 - 58.606 witness has to start with, I am a key witness.

03:26 - 02.275 I mean, it just seems that that was in a superior court

03:27 - 03.376 sort of made that conclusion

03:27 - 06.713 and then jumped off from there and said, okay, so he made a mistake.

03:27 - 08.014 This is how we should have ruled.

03:27 - 09.349 And that's why we're reversing.

03:27 - 12.085 Is, is, is that my understanding of how they did it?

03:27 - 13.520 That's our understanding as well.

03:27 - 14.921 I mean, quite frankly,

03:27 - 19.125 we were rather surprised when this key witness, element was now

03:27 - 23.130 put to the forefront of determining whether the a case should be transferred.

03:27 - 26.266 And I think you're only saying is if they would have followed abuse

03:27 - 30.738 of discretion, that was a straight abuse of discretion.

03:27 - 36.643 You think that Judge Cohen maybe could have reached a contrary conclusion

03:27 - 37.977 and it would have gone up on a pure

03:27 - 41.282 abuse of discretion standard, and he would have gotten the benefit

03:27 - 45.585 of the doubt as an on an abuse of discretion side of things.

03:27 - 48.621 There would have to be show manifest all those things.

03:27 - 51.625 You're not necessarily saying you would agree with it, but

03:27 - 54.594 you just want an even playing field in a standard

03:27 - 57.030 that is an abuse of discretion, which is highly deferential.

03:27 - 58.698 Absolutely. It's highly differential.

03:27 - 59.266 And that's what

03:27 - 02.435 that's why I think the standard is there to pretty much I'm not going to say

03:28 - 05.472 protect the trial judges, but to give them the authority

03:28 - 09.243 and the ability to use their experience when they make these kinds of decisions.

03:28 - 13.146 And go ahead.

03:28 - 16.316 So another point that I'd like to talk about very, very briefly is

03:28 - 19.820 the case law refers to the convenience of the parties and the witnesses.

03:28 - 24.724 And I think sometimes when we start to talk about these cases and the parties

03:28 - 28.128 and who the witnesses are, and here we have the issue of the key witness,

03:28 - 31.698 I would suggest that

03:28 - 35.336 who protects the convenience of the respective witnesses?

03:28 - 39.339 It's not it's not the lawyers because they're more interested

03:28 - 41.774 in their parties and defending their position.

03:28 - 43.776 It, frankly, is the trial judge.

03:28 - 47.146 And I think that's why there should be more, authority

03:28 - 50.183 given to the trial judge to take a look at who these potential witnesses

03:28 - 53.521 may be and what they what they might know and the he should be able

03:28 - 56.957 he or she should be able to use, their common sense in determining that.

03:28 - 58.892 And an example of that.

03:28 - 03.764 Your honors are the first responders to these cases.

03:29 - 06.165 And in many times in these kinds of accidents,

03:29 - 10.638 we're really only talking about one state trooper, maybe 1 or 2 EMS personnel.

03:29 - 14.240 So it's not really that big of a deal in this case.

03:29 - 17.677 I would suggest that just about every state trooper within many,

03:29 - 22.950 many miles of this terrible event, as well as just about every EMS, voluntary, fire

03:29 - 27.054 department official and so forth, were there for an extended period of time.

03:29 - 31.591 And discussion in the briefs was brought up about how well, it's

03:29 - 33.393 not that big of a deal to have a state trooper

03:29 - 37.131 drive to a distant forum to give testimony at a trial.

03:29 - 40.901 Well, if they were like a typical fact witness, that's probably true.

03:29 - 44.170 But the first responders, don't forget,

03:29 - 48.409 have a very important role in their respective counties.

03:29 - 52.111 The fact of requiring them to try to to drive

03:29 - 55.783 a great distance to a distant forum degrades the safety,

03:29 - 59.686 the response time, the the lessons, the availability of manpower

03:29 - 03.624 and the ability for them to do their jobs in that particular county.

03:30 - 07.361 And so if we have a number of them that are scheduled to be far away

03:30 - 10.129 and God forbid something else was to happen

03:30 - 12.632 that would not be appropriate for that particular county.

03:30 - 14.368 And I think that's one reason why,

03:30 - 16.469 when there's a large

03:30 - 19.473 amount of first responders involved,

03:30 - 24.210 further deference should be given to that factor

03:30 - 27.448 in considering what county is appropriate.

03:30 - 33.187 The last issue that I'd like to raise

03:30 - 36.322 is one that is related to some of the issues

03:30 - 41.762 that were discussed by my brothers, and when we look at these cases,

03:30 - 46.500 many, many of them relate to cases involving Philadelphia.

03:30 - 50.337 And that's all well and good, but we would suggest

03:30 - 53.674 your honors that this is not a Philly thing.

03:30 - 56.542 This is a Commonwealth of Pennsylvania thing.

03:30 - 59.980 And quite frankly, there are 67 counties in our Commonwealth

03:31 - 03.916 that have respective trial judges that deserve a better way

03:31 - 08.155 and a more efficient way to decide these types of cases and decide

03:31 - 12.692 what is necessary for a case to be whether it should be in Pike County

03:31 - 16.062 or Bradford County or Erie County, depending on where else it might have

03:31 - 19.066 taken place and where all the witnesses might be.

03:31 - 22.236 We would respectfully request that you

03:31 - 26.372 not only affirm the trial judge and reverse the Superior Court,

03:31 - 30.444 but maybe possibly clarify the Braddock decision

03:31 - 34.147 and the standards set forth there so that we'll have a better understanding

03:31 - 37.651 in the future so we can avoid what has happened in this case.

03:31 - 42.056 This terrible situation happened more than five years ago.

03:31 - 43.823 Five years ago.

03:31 - 46.894 We're still in the first inning of the litigation.

03:31 - 49.529 Counsel, how do you suggest we do that?

03:31 - 52.165 I'm sorry. Over here. Oh sorry.

03:31 - 53.166 Just as a Gafford.

03:31 - 54.600 How do you suggest we do that.

03:31 - 55.935 Well I think one of the issues

03:31 - 59.707 that always comes up in my mind is having practiced for as long as I did

03:32 - 05.645 is these motions for transfer of venue usually occur at the outset of the case.

03:32 - 07.380 And you don't know who you're going to call

03:32 - 10.350 until you actually go through the discovery process and witnesses.

03:32 - 12.552 I mean, my thought process has always been the same, which is

03:32 - 16.590 maybe we should just kind of delay the, motion practice

03:32 - 18.458 for change of venue on a form

03:32 - 19.393 non convenience argument

03:32 - 21.961 until we actually finish discovery and figure out

03:32 - 24.731 who we're going to call, because I know what the plaintiffs argument

03:32 - 28.335 is going to be in this particular case, which is you've identified 72 witnesses.

03:32 - 29.736 But when we get in to trial,

03:32 - 33.407 you're only going to call an accident reconstructionist in maybe one fact ways.

03:32 - 37.210 So how do we sit here and say to the trial judges,

03:32 - 40.214 or implement some kind of standard to the trial judges,

03:32 - 43.650 that what they should look at on a motion to transfer venue

03:32 - 47.520 at what amounts to a preliminary objections standpoint early

03:32 - 50.490 in the process, before we know who the witnesses are, what,

03:32 - 53.359 if any, relevance their testimony has to the case

03:32 - 55.161 and whether or not they're going to be called.

03:32 - 56.796 And that's that's a very valid point.

03:32 - 57.997 Justice McCaffery.

03:32 - 02.101 But, well, I think there's one issue where when you commented

03:33 - 05.105 that maybe we should wait till later in the case,

03:33 - 09.809 unfortunately, we have done that in cases where we've done substantive discovery.

03:33 - 10.611 And quite frankly,

03:33 - 14.548 our focus was on trying to resolve the case, maybe, and it didn't resolve.

03:33 - 17.718 And we said, oh boy, maybe we need to file a motion to transfer.

03:33 - 20.820 And we were told, quite frankly, you did all the substantive discovery

03:33 - 23.824 already in this particular forum, and you were, frankly,

03:33 - 26.559 in, you know, view of the trial judge.

03:33 - 27.827 That's a bit of a misnomer. And.

03:33 - 31.068 Well, and the reason I say that is because we've actually talked about that issue.

03:33 - 33.032 I mean, the parties are going to be deposed

03:33 - 34.734 wherever you say they're going to be deposed.

03:33 - 37.837 If I mean, having practiced law, I'm I'm sure you guys have practiced

03:33 - 40.373 law for longer than I ever did and probably better than I ever did.

03:33 - 43.610 But if you've got a fact witness, you're going to go to word of fact witnesses.

03:33 - 47.146 You're not going to drag a fact witness from Westmoreland County to a deposition

03:33 - 50.217 in Philadelphia County, or you well know that may be true.

03:33 - 54.520 However, when the trial takes place, the fact witness should not have to

03:33 - 58.692 be able to have to travel to a state forum in order to appear at the trial.

03:34 - 01.861 But that's inevitable.

03:34 - 05.098 What if you've got 15 fact witnesses, all from different counties

03:34 - 08.101 in different parts of the state, you're going to have to drag them

03:34 - 11.370 14 of them, to some form that's inconvenient to one of them

03:34 - 14.207 is not going to be inconvenient. It's always a possibility.

03:34 - 15.508 It is a possibility.

03:34 - 18.144 And I think it depends on the particular facts of the case.

03:34 - 21.215 In in this case, the process in this case,

03:34 - 26.086 all of the witnesses are from those three counties right around there,

03:34 - 29.922 especially the first responders, especially the first responders.

03:34 - 31.290 They're all right there.

03:34 - 32.992 So what does that to do with form nine give me.

03:34 - 36.930 So if you're 12 that positions in Westmoreland County that that suggests

03:34 - 41.168 the fact in a case especially like this with those particular facts

03:34 - 44.337 that were in the county, that makes it the least

03:34 - 47.341 convenient, inconvenience, convenient.

03:34 - 47.908 Yeah.

03:34 - 50.878 Most convenient for those particular, individuals

03:34 - 53.412 can't cancel it.

03:34 - 54.547 It's important right here.

03:34 - 57.783 We're in these these cases have to stand

03:34 - 01.355 on their own facts and their own totality of the circumstances.

03:35 - 03.122 Absolutely. And that's one.

03:35 - 07.560 And I think that's part of the problem that I'm struggling with for with your

03:35 - 12.598 suggestion that we clarified the role, I think our role is pretty clear.

03:35 - 16.602 I mean, there has to be evidence of record to support the trial court's

03:35 - 19.840 decision that the forum is inconvenient

03:35 - 23.609 and the trial court writes an opinion like this trial court,

03:35 - 25.711 in which was an excellent opinion,

03:35 - 29.316 frankly, establishing that the witnesses were key witnesses.

03:35 - 33.619 I know you guys don't like the word, but I mean, there's no way you could read

03:35 - 36.822 that trial court's decision without coming to the conclusion

03:35 - 40.060 that he determined that in any trial of this matter,

03:35 - 44.931 these witnesses or some subset of them were going to be key

03:35 - 48.602 to, the liability portion of the case.

03:35 - 51.938 You just given the circumstances of the accident.

03:35 - 54.440 So I'm not sure how much clearer we can make it.

03:35 - 56.842 I mean, you have a trial court, you write a good decision

03:35 - 59.478 that takes into account all of the evidence of record

03:35 - 03.183 and the totality of the circumstances, and comes to a reasoned conclusion.

03:36 - 06.319 What else do you want to tell them to do?

03:36 - 10.089 I would suggest that maybe there's a little bit more clarity.

03:36 - 11.457 I mean, right now there's a

03:36 - 15.028 at the points about a great difference on the on the plaintiff's choice of forum.

03:36 - 18.097 And that's all well and good, but I think you might want to also

03:36 - 21.401 take a look at the difference should be maybe affected

03:36 - 26.173 if the plaintiff has nothing to do with that particular forum life. Why?

03:36 - 28.607 That's because, quite frankly, is the forum they can bring,

03:36 - 32.445 they can bring in an action in any of the designated counties.

03:36 - 34.814 That's what makes it the plaintiff choice, the forum.

03:36 - 36.882 There are some situations where it doesn't matter.

03:36 - 37.651 Don't you agree?

03:36 - 41.320 I agree in some situations why you have the plaintiff shows the forum, right.

03:36 - 44.390 But there's also cases where I think there should be more of a balance

03:36 - 49.629 where it absolutely affects and it the inconveniences can inconveniences.

03:36 - 52.431 A number of the witnesses, especially in a case like that.

03:36 - 57.370 May be it may be a tacit consideration that a judge might consider in a case

03:36 - 00.507 where there are all these witnesses

03:37 - 04.111 hundreds of miles away, in a case.

03:37 - 08.280 And the only connection the case has to the current venue,

03:37 - 12.118 which is otherwise inconvenient, is it just happens

03:37 - 15.121 to be the plaintiffs choice, a forum that's forum, not convenience.

03:37 - 17.289 I mean, that's to Justice Donahue's point.

03:37 - 20.226 I mean, I'm not

03:37 - 22.862 you know, I think I think I don't understand too

03:37 - 26.832 what you're else you're asking for, but I'm not sure you need to sample.

03:37 - 30.170 Nobody complained about the cases that were brought in Allegheny County.

03:37 - 32.805 Right. Well, I think it would depend.

03:37 - 34.673 I mean, maybe in this case.

03:37 - 35.609 Oh, in this case, no.

03:37 - 39.045 Filed in Allegheny County, the cases stayed in Allegheny County.

03:37 - 42.815 Unfortunately, it doesn't appear like anything has happened in any of these

03:37 - 46.353 cases for reasons that are unclear to me, but they're all state.

03:37 - 49.822 I agree that you're that you're complicating and perhaps undermining

03:37 - 50.557 your own case.

03:37 - 53.560 I mean, Braddock Braddock is very clear.

03:37 - 56.595 What's not clear is the Superior Court's opinion here, right?

03:37 - 57.330 I will agree with that.

03:37 - 00.834 So I don't know why you're why you insist on on overcomplicating this.

03:38 - 03.569 Well, I just think that there and I would just suggest that

03:38 - 06.038 and I'm sorry if I did that, but I just think that the

03:38 - 10.276 that the ability of the, the trial judges to utilize the totality

03:38 - 13.279 of their circumstances and their common sense to look at the overall record,

03:38 - 17.184 to make a decision, is should be supported.

03:38 - 19.585 Okay. Thank you. Thank you very much for your time.

03:38 - 24.890 Let us hear from, Attorney Sarnoff or the appellees and Mr.

03:38 - 25.292 Sarnoff.

03:38 - 29.328 You should feel flattered by the fact that we had three attorneys.

03:38 - 31.130 It took three attorneys

03:38 - 34.567 to counter your arguments that you're making all by yourself.

03:38 - 37.504 And a camera case and a camera case before yours.

03:38 - 41.841 He's a camera expert, everybody.

03:38 - 42.842 Chief justice Todd,

03:38 - 46.713 I don't know if I feel flattered by that, but I certainly feel something,

03:38 - 52.618 by given the number of forces raised but not intimidated.

03:38 - 55.387 Certainly not that. No.

03:38 - 59.626 Chief Justice Todd and may please the court, David Sarnoff for Apple's

03:39 - 02.294 in the movie The Matrix.

03:39 - 04.830 At the very beginning of the movie,

03:39 - 08.235 the main characters given a choice between taking a blue pill or red pill.

03:39 - 11.237 If the character takes the blue pill, he's

03:39 - 15.008 going to live in a world that's not real.

03:39 - 18.678 If he takes a red pill, he's going to learn the truth

03:39 - 21.247 even if he doesn't like it.

03:39 - 26.952 And I will suggest to you that form nine convenience is one of the few blue

03:39 - 32.224 pill red pills, questions or choices left in Pennsylvania law.

03:39 - 36.997 And what I mean by that is that the defendants

03:39 - 40.633 always try and convince, or the moving party always tries

03:39 - 44.404 to convince the trial judge to take the blue pill

03:39 - 47.573 to live in this altered reality,

03:39 - 50.543 where 66 first

03:39 - 55.182 responders from three different counties are all going to be called to trial

03:39 - 01.154 in a case where all of the plaintiffs are passengers

03:40 - 04.858 and there is no liability issue to be decided

03:40 - 09.995 except as between the defendants and the plaintiffs.

03:40 - 14.133 On the other hand, always try and convince

03:40 - 18.103 the trial court to take the red pill and go live in a world

03:40 - 23.243 that's much less nice than if you take the blue pill.

03:40 - 26.612 But I suggest to you that we would rather live

03:40 - 29.616 in that world for the following reason.

03:40 - 32.751 What it seems to me has been

03:40 - 35.889 occurring is that and the and the reason.

03:40 - 39.693 And this culminated in the courts, I think, Emma decision perhaps

03:40 - 44.197 the Superior court's emer decision, perhaps the Ritchie decision before that

03:40 - 48.235 is that the defendants have reduced

03:40 - 51.838 form nine convenience transfer motions

03:40 - 54.907 to some kind of formula.

03:40 - 58.011 And what I mean by that is, if they have enough

03:40 - 01.080 evidence in the form of

03:41 - 04.985 affidavits, depositions, whatever the case may be,

03:41 - 10.322 they put that in the record, but they list every potential witness.

03:41 - 14.728 So they pile up 66 affidavits or but Mr..

03:41 - 17.796 Off if if this was a case where

03:41 - 22.635 there was any any evidence that the defendants were learning

03:41 - 28.207 the record with cockamamie concocted, evidence, that would be one thing.

03:41 - 31.777 But tell us what what there was

03:41 - 35.048 a by way of evidence that wasn't Westmoreland County evidence.

03:41 - 38.351 The first responders, the coroner's people, the police,

03:41 - 42.187 this was all three of us drove over the mountains yesterday from Pittsburgh.

03:41 - 45.124 And we passed this site, as we do often.

03:41 - 49.262 And it's definitely quite a bit more remote than Dawson,

03:41 - 52.298 which this court unanimously said

03:41 - 55.302 was too remote from Philly in Braddock.

03:41 - 58.605 So if, if the if Dauphin

03:41 - 03.409 was too remote in Braddock, in a case with fewer Dauphin

03:42 - 07.680 witnesses than Westmoreland witnesses here, how can you say that?