00:01 - Good morning everyone.

00:03 - Welcome to our third and final day

00:05 - of our spring oral argument session here in Pittsburgh.

00:08 - And the third day of absolutely different

00:11 - weather that we have every day in Pittsburgh.

00:14 - As you may know, the Pennsylvania Supreme Court is the oldest appellate

00:18 - court in North America.

00:20 - Our roots date back to William Penn's provincial court of 1684,

00:25 - and our Supreme Court was formally established

00:27 - pursuant to the Pennsylvania Judiciary Act

00:30 - of 1722.

00:33 - In 2022, we celebrated our court's historic 300th

00:39 - anniversary in Philadelphia, and we on this court

00:42 - are very proud of our court's rich history.

00:46 - It's truly an honor for us to sit in three magnificent courtrooms

00:50 - in Philadel, Opia, Harrisburg and Pittsburgh.

00:54 - I like to mention a little bit about our Supreme Court history

00:57 - before we start the arguments.

00:59 - As you likely noticed when you were entering the courtroom,

01:02 - our court has a tradition of hanging oil portraits of former chief justices.

01:08 - And our courtroom space yesterday.

01:11 - I, spoke about Chief Justice James Drew,

01:17 - Chief Justice James Starrett, and Chief Justice Robert Frazer.

01:22 - And I wanted to just mention, the remaining chief

01:26 - justices on the wall just as a point of interest.

01:30 - In 1961, by way of background, Governor

01:33 - David L Lawrence appointed Pennsylvania's attorney general

01:37 - an Excel person, to become this court's

01:41 - first appointed female justice.

01:45 - However, in order to win a full term, she had to run for election

01:50 - and she had to defeat Henry X O'Brien, who she didn't defeat.

01:55 - Thus, he's the fourth, justice pictured there.

02:00 - Alpert lost a very contentious election

02:03 - during, Justice Henry X O'Brien's term as chief justice.

02:08 - He established our lawyers Client Security Fund

02:12 - to reimburse clients who were defrauded by their lawyers.

02:17 - O'Brien served as chief justice from 1980 to 1983.

02:22 - To his left on the wall

02:26 - is Chief Justice Samuel Roberts.

02:28 - After graduating from the University of Pennsylvania.

02:32 - Roberts entered a lengthy private practice in his home town of Erie.

02:37 - He served in World War Two.

02:39 - In the United States Navy, and was later elected

02:43 - to the Erie County Bench and later to our court.

02:47 - In 1962, he became Chief

02:50 - Justice of Pennsylvania in 1983 and served until 1984,

02:56 - after which apparently he was a glutton for punishment.

02:59 - He became a senior judge on the Superior Court and a special master for the U.S.

03:05 - Supreme Court.

03:06 - To his left is a justice.

03:09 - Many of us knew Chief Justice John Flaherty.

03:13 - After graduating from law school, he opened a solo

03:16 - practice in Mount Lebanon.

03:18 - Here in the Pittsburgh area,

03:20 - while at the same time teaching at Carnegie Mellon University.

03:24 - He was elected to the Allegheny County Common Pleas bench and bench

03:30 - and gained notoriety for his controversial decisions,

03:33 - including closing an all black middle school in Pittsburgh

03:36 - for illegal segregation and ordering the removal of fluoride from 26

03:42 - communities drinking water, an order that was later overturned on appeal.

03:47 - He was elected to this court in 1979,

03:50 - and he served as Chief Justice from 1996 until his retirement in 2001.

03:57 - Next to Flaherty is Chief Justice Steve Zappala,

04:00 - an outstanding athlete.

04:03 - Zappala played basketball for Notre Dame before

04:06 - moving back to Pittsburgh to play for Duquesne University.

04:10 - After serving in the Army, Cipolla graduated from Georgetown Law School

04:14 - and returned to Pittsburgh to practice with his father and brother.

04:18 - He was elected to the Allegheny County bench in 1979,

04:23 - and two years later to the Pennsylvania Supreme Court.

04:26 - He served as Chief Justice from January 1st of 2002

04:31 - to December 31st of 2002.

04:34 - While on the court, he initiated, developed and fully integrated

04:38 - the largest computer automation system of any type in our country.

04:43 - Next to Zappala is Chief Justice Ralph Kappy,

04:47 - which is fitting because I believe they were always together.

04:51 - Cappie graduated from the University of Pittsburgh School of Law

04:55 - and under private practice before beginning his public service

04:59 - in the Allegheny County Public Defender's Office.

05:03 - He became the director of that office before being appointed

05:06 - to the Common Pleas bench by Governor Sharpe.

05:10 - He won a seat on our Supreme Court in 1989, and became Pennsylvania's

05:15 - Chief Justice in 2003, serving

05:18 - until his retirement in 2008.

05:22 - Chief Justice Cappy died unexpectedly in 2009, shortly

05:27 - before the opening of Pennsylvania's Judicial Center in Harrisburg,

05:32 - because of, Chief Justice Cathy's efforts

05:35 - in, planning and developing and securing funding for that building.

05:40 - His portrait

05:41 - hangs in the Judicial Council room on the first floor of that building.

05:46 - Finally, our late colleague and, my predecessor,

05:50 - Chief Justice Max Baer,

05:53 - he became began his public service with the Allegheny.

05:57 - Pardon me, with the Pennsylvania Attorney General's office before moving to private

06:02 - practice and later to the Allegheny County Court of Common Pleas.

06:06 - During that time, he fought tirelessly to reform the juvenile justice system.

06:12 - After receiving national recognition for those efforts,

06:15 - he was elected to our Supreme Court in 2003

06:19 - and spearheaded several initiatives to help

06:22 - speed up the appellate process for domestic cases involving children.

06:27 - He became Chief Justice in 2021

06:31 - and served until his unexpected death in October of 2022.

06:37 - All of these chief justices from the western Pennsylvania

06:40 - area are a part of our rich heritage of our Pennsylvania Supreme Court.

06:46 - Before we hear the

06:47 - first case, I would like to remind Council of a few things.

06:51 - First of all, appellate counsel, please approach the podium

06:54 - when your case is called.

06:56 - I will then give a short summary of the case.

06:59 - You may then begin by stating your name and the party you represent.

07:03 - And please introduce your co-counsel to the court, if any.

07:07 - The justices are familiar with your cases.

07:09 - So I ask that you avoid any unnecessary recitation of facts or procedural history

07:15 - and instead focus on the main issues on which we granite review.

07:19 - Counsel is welcome to rely on their briefs for particular issues.

07:24 - Please remember that we do not allow rebuttal

07:28 - in cases where there are multiple parties represented by separate counsel.

07:33 - You should avoid repeating the same arguments as prior counsel.

07:37 - Please try not to interrupt the justices while we are asking your questions.

07:42 - Although we may be interrupting you.

07:45 - Justice, this question is not meant to trip you up.

07:48 - Rather, it indicates there are particular issues that we want to explore further.

07:53 - While there's no set time

07:54 - for argument in our court, I will advise counsel

07:58 - when the court is satisfied that all of its questions have been answered.

08:03 - And at that time, I will ask that you conclude your argument.

08:07 - The next case we're going to hear is called NHL at all

08:12 - versus the city of Pittsburgh.

08:14 - This is a really interesting case about the,

08:18 - uniformity provision of the tax code,

08:21 - but it really has a lot of drama associated

08:23 - with it in terms of involving the National Hockey League,

08:27 - the National Football League, and, and, Major League Baseball.

08:31 - So the city of Pittsburgh hosted three major league

08:35 - sports teams the Pirates, the Steelers and the Penguins.

08:39 - And the city said, you know, these players come in

08:43 - and they're making a lot of money and they play in our facilities,

08:47 - and that costs us money, and they should really pay taxes.

08:50 - And so we're going to allocate a certain share of their, incomes,

08:55 - which as you know, can be quite substantial.

08:58 - We're going to allocate a share of their income

09:01 - to the game day experience or different types of formulas.

09:06 - And so in the case of a football player, that 1/18 of his salary

09:11 - is really associated with that game that he plays in Pittsburgh.

09:15 - And so they're going to charge him that ratio

09:18 - of his salary and say city income tax.

09:22 - Now what they're doing the city tax.

09:25 - If you if you're a resident of the city, the city tax would be 3%

09:28 - where you're paying the money, 1% of that or 1% is going to the city

09:33 - and 2% is really going to the Pittsburgh school district.

09:37 - So that's really, an important distinction that's going to come up in this case.

09:41 - So if you're a city resident, whether or not you're in the sports world or not,

09:46 - you pay 3%, the 1% is going to the city

09:50 - and 2% is going to the school district.

09:53 - So here the city is charging these athletes

09:57 - 3%, which is what every city residents paying.

10:01 - But looking at the back end of where that money goes,

10:05 - there's really no basis to send that to the 2% to the school district.

10:09 - So the city is going to keep the 3%.

10:12 - So in the case of the resident, 1%

10:15 - is going to the school, 2% to the to the school district.

10:18 - In the case of this athlete,

10:20 - you take 1/18 of a salary or some other prorated amount

10:24 - and he's paying the same 3%, but it it's going exclusively to the city.

10:32 - So the players association.

10:34 - So when they say this violates the uniformity provision

10:37 - of the Pennsylvania Constitution, you're taxing us in a different manner.

10:42 - And there was a case called Minick versus Sharon,

10:47 - that involved

10:48 - a situation in Sharon where out of town residents had really made

10:52 - the same argument that after the tax was received,

10:56 - it wasn't being allocated equally between the school district in the and the city.

11:00 - It was going exclusively to the city.

11:02 - So effectively, they were they were saying, we're paying a much

11:06 - higher tax to the city than are the residents of Sharon

11:12 - and the court in that case back in the 1950s.

11:16 - And the court indicated that, no, in fact, you're paying the same percentage.

11:21 - So in our case, we have a 3% tax,

11:24 - which is a quarter saying you're paying the same percentage

11:26 - and it's really doesn't affect you or impact you how the money downstream is

11:31 - being allocated. You're paying the same amount.

11:33 - So in the minute case, the court basically upheld

11:37 - the distinction between the resident and nonresident tax.

11:42 - The players association,

11:45 - is looking to another case,

11:48 - that involved the Bethlehem Steel Company.

11:50 - It's called Dan like versus Bethlehem Steel Company.

11:53 - And in that case, the court made a distinction

11:56 - between the, the,

11:59 - what the nonresidents were paying with the residents were paying.

12:02 - And so that did not involve the allocation

12:06 - upon receipt of the tax that involved whether or not,

12:10 - the individuals could be taxed the same or differently.

12:14 - And so that's where the, the court is,

12:18 - looking at that particular issue.

12:20 - The court has articulated the question, that they want to discuss

12:25 - whether the Commonwealth court's majority opinion departed from this court's

12:29 - precedent, and Minick versus Sharon back in 1951 and incorrectly interpreted

12:34 - the Pennsylvania uniformity clause to require,

12:38 - exact uniformity in the ultimate destination

12:42 - of the tax revenue among residents and nonresidents,

12:45 - rather than rough equality to the overall tax burden.

12:49 - What happened in this particular case is the Common Pleas judge in Allegheny

12:54 - County said that the tax did, in fact violate the uniformity clause.

12:58 - It went to the Commonwealth Court,

13:00 - which heard it in bond, which means seven of the nine

13:03 - Commonwealth Court judge judges heard the case and by 6 to 1 vote,

13:07 - they concluded also that it violated the uniformity clause.

13:11 - So it's interesting that the,

13:13 - state Supreme Court is hearing this case

13:15 - and really focusing on this case, Minick versus Sharon,

13:19 - which talked about the allocation of the funds after receipt.

13:24 - In other words, everybody paid the same amount,

13:26 - but it's allocated differently.

13:28 - Whereas the players association is really looking

13:31 - to the the other case, which is now talking about whether they're

13:35 - being treated up front in a different manner.

13:38 - And so it's going to be very interesting to see how this court

13:41 - handles that discussion and whether they're going to really adhere

13:44 - strictly to their own, question that they selected for this argument,

13:50 - namely, as to the back end allocation of the tax

13:53 - or whether they're going to be open and receptive

13:55 - to the argument of the players associations, that they are, in fact,

13:59 - being treated differently from the front end as well.

14:02 - So we're going to hear

14:03 - a very interesting argument on a case that has a lot of repercussions

14:07 - for the city tax situation, and we look forward to the argument.

14:11 - And let's see what what's presented.

14:14 - Thank you.

14:15 - And may it please the court.

14:16 - My name is Yazz Ashrawi and with my colleague and co-counsel, Jordan Blast.

14:21 - We're here on behalf of the appellant, the City of Pittsburgh.

14:25 - Your honor, the purpose of the Pennsylvania

14:27 - Uniformity clause is to ensure rough equality

14:31 - and rough uniformity in the assignment of the tax burden

14:36 - on subjects within a particular class.

14:39 - And the facility at issue in this case, does just that.

14:44 - And it certainly does not clearly,

14:47 - palpably, or plainly violate the uniformity clause.

14:52 - We're asking that you reverse the Commonwealth Court decision

14:54 - and uphold the tax, particularly in light of the presumption of validity

14:59 - that is afforded to this facility by the tremendous discretion

15:04 - that is afforded to local governments in matters of taxation

15:08 - and the heavy burden that a challenger must overcome

15:10 - in order to strike a tax down.

15:13 - And as this court has said, any doubt about the constitutionality

15:17 - of a tax statute must be resolved in favor of upholding it.

15:23 - But there should be no doubt here

15:25 - the facility fee at issue in this case

15:30 - does the exact opposite

15:32 - of create disparate or unequal treatment.

15:35 - It equalizes the earned income tax burden on a class of individuals.

15:41 - To clarify clarify

15:44 - you're referring to it as a fee, but it is a tax.

15:47 - Yes, Your Honor, the city has conceded as a tax

15:50 - and for that reason is treated as a tax.

15:53 - And there's no issue on that point.

15:56 - Of course,

15:58 - it brings parity and equalization,

16:01 - where parity and equalization did not exist prior.

16:05 - Now, regardless of an athlete

16:08 - or entertainers residency,

16:11 - whether they live in Pittsburgh or Philadelphia

16:15 - or Columbus or Boston,

16:18 - they pay a 3% earned income tax

16:22 - on renumeration generated

16:24 - by performing at one of the city's publicly funded facilities.

16:28 - How does that relate to the taxes the, non city

16:32 - residents pay to their home?

16:37 - Municipalities?

16:39 - Your honor, because it is a tax, it can be used

16:43 - or considered for credit purposes, just like any other tax can.

16:48 - And when you look at the language of the uniformity clause, uniformity

16:53 - clause looks at tax uniformity within the territorial jurisdiction

16:58 - of the taxing entity, which would be the city of Pittsburgh.

17:02 - So while there could be a plethora

17:05 - of other taxes that nonresidents pay,

17:09 - whether those are nonresidents that still reside in Pennsylvania

17:12 - or nonresidents that reside elsewhere in the United States,

17:16 - there's going to be differences among those other taxes, no doubt.

17:20 - But the key here is, under the plain language of the uniformity clause,

17:25 - the burden on earned income tax

17:28 - at these publicly funded facilities is the same.

17:31 - It's 3%, but counsel on the balancing act,

17:36 - how can you aggregate a burden

17:40 - here that

17:41 - the nonresidents would in no instance have been permitted to be assessed?

17:46 - I'm talking about the City of Pittsburgh School district tax

17:50 - that could never be laid on the nonresident performers.

17:55 - So how can that come into the mix here?

17:58 - Certainly the reason it comes into the mix, Your Honor, is

18:01 - because it is a tax on the same subject.

18:05 - And when you look at the uniformity Clause, uniformity clause does not

18:09 - look at who the taxing entity is, and neither does this court.

18:14 - In Sharon v Minnick, for example,

18:17 - the residents paid

18:19 - ten mills on their income tax, while nonresidents

18:23 - who worked in the city of Sharon also paid ten mills on their income tax.

18:27 - Half of the millage, half of the revenue for the residents, was allocated

18:32 - to the school district, a tax that nonresidents are not subject to.

18:38 - And they raise the same challenge that has been raised here in this court.

18:42 - In Minnick looked at the overall tax burden on the same subject

18:46 - earned income tax determined that the overall tax burden

18:51 - was the exact same and found no issue with respect to the uniformity clause.

18:56 - But here in the city of Pittsburgh, there are two separate taxes.

19:01 - Right?

19:02 - I'm not talking about the sports add on, but just generally

19:06 - the school school district 2% tax

19:11 - separate apart from the 1% income tax.

19:15 - Is that correct?

19:16 - It is the school income tax.

19:19 - The authority to levy that is separate.

19:22 - The tax itself is the same.

19:24 - It is an earned income tax.

19:25 - For example, there was no earned income tax.

19:27 - Correct. Are separate.

19:29 - There's they're they're separately.

19:31 - There are separate entities that impose them.

19:33 - But that is exactly what happened in Minnesota.

19:37 - And it also exactly what happened in the instructive

19:40 - free case out of the Maryland Supreme Court.

19:44 - And that instance, there was, residents of Maryland

19:48 - paid a state income tax that nonresidents that made money in Maryland also paid.

19:54 - Residents, then paid a county income tax dependent on the county in which

19:59 - they reside, that the totally separate imposed by the local county,

20:05 - the nonresidents, could never be subject to that tax.

20:08 - Instead, Maryland enacted

20:11 - a special nonresident tax on its face applicable

20:15 - only to nonresidents, and that special nonresident tax

20:19 - was equal to the local county tax

20:23 - that the residents paid.

20:25 - So there you have two different entities

20:28 - imposing same income tax under two different sets of authority,

20:33 - and then a special nonresident tax to equalize that burden.

20:38 - And Frey

20:39 - was I'm sorry enough council I of course,

20:43 - could I just go back to Minnick for a second, your honor,

20:47 - when I read that short case, I.

20:50 - But from what I gleaned there, it seemed like the tax.

20:55 - Correct me if I'm wrong in sharing.

20:56 - There it was. It was the.

21:00 - It was a ten mil, ten mil

21:01 - income tax on residents and nonresidents alike.

21:05 - So isn't that right?

21:06 - So I mean, you have a a difference,

21:09 - a distinction with a difference here

21:12 - as opposed to a between that and what's going on here, don't you.

21:16 - Not precisely, Your honor.

21:18 - Minnick was very short.

21:19 - But if you read the ordinance at issue and mimic it, the two things it imposed

21:23 - a ten mil income tax on residents of the city

21:27 - of Sharon, period, irrespective of where they worked.

21:30 - Separately, it imposed a tax on nonresidents

21:34 - that worked in the city of Sharon.

21:36 - So facially it distinguished on residency.

21:39 - Right?

21:40 - So you could be a resident of Sharon and work elsewhere

21:43 - that ten mill tax still apply to you.

21:46 - But if you're a nonresident working in the city,

21:50 - that now applies to you.

21:51 - So slight difference.

21:54 - Regardless, if you look at the present case

21:57 - and you look at Minnick, you have two different taxing authorities.

22:01 - You're talking about an income tax on earned income, the same subject

22:05 - that is, burdened by that tax.

22:09 - You're talking about nonresidents paying a greater amount on the back

22:14 - end, revenue wise, to the city in which they are not residents.

22:18 - Exactly. What's happening here?

22:21 - And you have a tax, as I just pointed out,

22:23 - that was not facially neutral, just like this one is not here.

22:27 - At the end of the day, the court looking at the local enabling tax,

22:31 - which is still applicable

22:34 - today, it's been amended, but the pertinent language still remains,

22:38 - looks at the total tax burden aggregated for a single tax.

22:43 - And that is the earned income tax.

22:45 - And that's why the Commonwealth's Commonwealth Court's reliance on Danny.

22:50 - Look is not correct.

22:54 - Danny, look at the Danny look, can I ask, going

22:58 - a slightly different direction on the uniformity.

23:01 - What earned income taxed as a nonresident

23:05 - pay in the city of Pittsburgh.

23:08 - That doesn't work at that.

23:10 - It's not an entertainer,

23:13 - or athlete?

23:15 - It depends, Your Honor, on a number of things.

23:17 - So if you are a nonresident of Pittsburgh that works there

23:22 - but lives in the state of Pennsylvania, the city

23:26 - withholds the greater of the income tax that the city imposes,

23:31 - or the income tax that is imposed by your resident jurisdiction.

23:35 - The city collects it,

23:37 - and then it allocates it based on the difference there.

23:40 - So if your local jurisdiction, your, your, resident jurisdiction charges

23:45 - less, it, it provides that allocation to your resident jurisdiction.

23:49 - It maintains the balance

23:52 - if it's greater

23:53 - than it pays all of it to your resident jurisdiction,

23:56 - and you still owe your resident jurisdiction money.

24:00 - If you are a non Pennsylvania resident,

24:04 - you owe a 1% income tax to the city of Pittsburgh.

24:09 - And I want to be very clear also what I mean.

24:12 - So here's my concern about this.

24:18 - Special taxation

24:20 - for entertainers and stadiums.

24:23 - And the hook seems to be that there are publicly financed facilities.

24:26 - At least that's the hook that the General Assembly seem to come up with.

24:29 - Courthouses are publicly financed facilities.

24:32 - Hospitals to many degrees are often publicly financed.

24:36 - Airports are public.

24:37 - I mean, we could go down the publicly financed road.

24:40 - Is it constitutional?

24:42 - Then, if the General Assembly wanted to sort of piggyback off of this,

24:47 - framework and,

24:49 - create a very similar law for attorneys that are not living

24:54 - in the city of Pittsburgh, but come in and appear in courthouses or buildings.

25:00 - Would that be a constitutional framework?

25:03 - Under the uniformity Clause, Your honor, if the overall tax burden

25:08 - on that class of individuals, lawyers

25:11 - that appear here is equal,

25:15 - it would be so long as there is enabling state legislation now.

25:20 - So we can dis we can treat professions

25:23 - from a taxation perspective differently that.

25:26 - No, Your Honor, I I'm sorry.

25:28 - Let me we're looking at the uniformity within a class of, of of subjects.

25:34 - So in the facility see that class of subjects

25:38 - is the earned income made from performances at those facilities.

25:42 - And there's no in the earned income we're talking about

25:45 - is the earned income made by lawyers who appear in courthouses.

25:48 - Certainly I in that instance, there may be a uniformity issue

25:53 - between lawyers and non-lawyer non-athletes.

25:59 - Well, that's, that's that's the classification I'm getting to.

26:02 - I'm trying to understand we're not allowed to classify or change

26:06 - classification based on how much money we know. That's the law.

26:08 - You can't do it by money.

26:10 - I'm wondering whether you can constitutionally do it by profession.

26:14 - You can constitutionally do it based on

26:17 - legitimate business and policy related reasons.

26:20 - And there's, there's only been your I.

26:24 - What's your source for that?

26:24 - I mean, what's the the only case related to the hook here?

26:28 - The hook here is it's a publicly financed facility.

26:31 - It's the the athletes and entertain ers that perform there.

26:35 - And the hook there is from a business and policy perspective, and there's really

26:39 - only one case in the nation on this and it's out of Ohio.

26:42 - The court has said in the Hill in Meyer case, when you look at the,

26:46 - justifications and rationale for treating athletes

26:48 - and entertainers differently, they demand a greater,

26:54 - amount of

26:54 - resources for security and safety

26:59 - and traffic control and police protection

27:02 - and stress on the local infrastructure.

27:05 - I was like, judges.

27:06 - Exactly.

27:07 - Your honor, I there's about as many people in here

27:10 - as there were at the 13 inning game last night here in Pittsburgh.

27:13 - Right. So,

27:15 - in any event, those those real world considerations

27:19 - and those real business considerations can be used for classification.

27:23 - Classification in and of itself is not prohibited.

27:28 - If there's classification, there needs to be a reasonable,

27:31 - rational basis for that classification.

27:35 - That's why not everybody that works at

27:38 - our, sports stadiums falls into this.

27:41 - This is just athletes, entertainers.

27:44 - This isn't the guy selling the beer or the popcorn that.

27:47 - That's correct.

27:47 - Your Honor.

27:48 - It's athletes and entertainers that that perform at those stadiums.

27:53 - And that's defined in the local local code that have the 3%

27:58 - tax burden on their earned income, and only the nonresidents,

28:02 - only the nonresident athletes, entertainers claiming then.

28:06 - So the city's claiming then that that that tax is necessary

28:12 - in effect to to cancel out, a different tax that the school district

28:17 - tax that only residents of the city of Pittsburgh pays.

28:21 - Right.

28:21 - I don't think it's so much as canceling out, but it is equalizing the tax burden

28:26 - because if you are a resident athlete or entertainer, right.

28:31 - In our class here are athletes, entertainers.

28:33 - If you are a resident athlete or entertainer,

28:35 - live in the city of Pittsburgh, you perform at one of those facilities.

28:40 - You are taxed 3% on the income generated.

28:43 - There.

28:45 - Now with the facility, see if you're a nonresident

28:49 - if you live in one of the suburbs, if you live in Philadelphia,

28:52 - if you live out of state, you also get taxed 3%.

28:56 - Now, what happens after that money is collected is different,

29:00 - but that's never been a determinative of a uniformity clause challenge.

29:05 - Does it look a lot like what the court,

29:08 - put the kibosh on? And,

29:11 - the Johnstown tried to make the same move in the Daniella

29:14 - case is very different, Your Honor.

29:16 - And let me go let me go through those distinctions.

29:19 - And why Danny Luck does not apply here.

29:22 - There was only one taxing entity in Danny.

29:25 - It was the city of Johnstown.

29:26 - So if if the city said we've got a 1%.

29:32 - Oh, and let me back up.

29:34 - There are two different types of taxes.

29:36 - So the subject of the tax was completely different, right?

29:39 - So if the city of Pittsburgh said we're going to tax residents

29:44 - 3% on earned income, and we're going to equalize that burden

29:49 - on the nonresident athletes, entertainers by taxing them

29:53 - 3% on the value of any real estate

29:57 - and assets they hold in the in the state of Pennsylvania.

30:00 - That would be a different case, because the subject of the tax,

30:03 - which is what the uniformity clause looks at, is different.

30:06 - And that was the case in Danny look and Danny look.

30:09 - There was one taxing authority, two different types of taxes

30:13 - a head tax and an occupation tax.

30:16 - There was and

30:18 - and the main holding and Danny Luck

30:23 - was that the head tax on nonresidents was per se invalid. Why?

30:28 - Because the purpose of a head tax is to provide

30:32 - revenue and resources for services specifically for residents.

30:37 - Right.

30:37 - So the the the subject of a head tax, our residents,

30:43 - nonresidents cannot be subject to a head tax.

30:46 - And any discussion on uniformity in Danny Locke

30:51 - was dicta as indicated by this court in the Leonard case.

30:56 - It reaffirmed the fact that,

31:00 - that the head tax was

31:02 - per se invalid on nonresidents

31:05 - with dicta related to the uniformity clause.

31:09 - If there were an, if there were an occupation tax set on both

31:14 - because occupation taxes are different than earned income taxes.

31:19 - So the two cases that are most

31:22 - factually similar to our case

31:26 - be the city of Sharon

31:27 - and even more so, fray out of Maryland.

31:32 - There you have two taxing entities

31:35 - equalizing an income tax burden on nonresidents

31:39 - that facially calls out nonresidents,

31:43 - both in both cases, this court and the Maryland Supreme Court

31:48 - upheld those special nonresident taxes

31:51 - because the overall tax burden was the same right.

31:56 - And what I,

31:57 - I'm still trying to understand this overall tax burden

31:59 - being the same for nonresidents. I'm not talking about nonresident.

32:02 - I'm I'm sort of focusing on I here nonresident nonresidents of Pittsburgh.

32:05 - Not not someone who lives in California who is coming in for an event.

32:09 - Sure.

32:09 - So let's assume the Pittsburgh Steelers draft the quarterback.

32:13 - That quarterback's going to have an option.

32:16 - Maybe, maybe moving to the city of Pittsburgh, maybe move

32:20 - into Washington County if that quarterback moves to Washington County,

32:26 - is that quarterback going to pay 3% to the city? Yes.

32:30 - Even though they may be paying 3% to

32:33 - Washington County and their local school district.

32:36 - Here's the distinction, Your Honor.

32:37 - And I just didn't answer first. Then you can give me a distinction.

32:40 - They may not be paying that 3% to Washington County

32:44 - or the local school district.

32:45 - And if they are, there's a credit option.

32:47 - And I want to be very clear, this is this income that is generated.

32:53 - Let's take that example.

32:54 - The income that is generated at those facilities is taxed one time.

32:59 - Right.

32:59 - So if that quarterback goes and plays the Cleveland Browns

33:03 - or the Cincinnati Bengals for the Baltimore Ravens,

33:07 - those cities will capture the income generated there

33:13 - and charge income on that

33:18 - on that earned income.

33:19 - So the the the resident, the resident,

33:24 - city or county or school district they live

33:26 - in, unless their statutes say something different.

33:29 - Can't capture income generated outside of there.

33:32 - And if they can, that's where the credit comes in.

33:35 - And I know there's been discussion on, you know, this doesn't allow a credit.

33:39 - The city has now conceded this is an earned income tax.

33:41 - So it's eligible for credit purposes just like any other earned income.

33:46 - Income tax.

33:47 - Tell me how the credit works.

33:49 - Certainly. So,

33:51 - the purpose the general purpose of the credit is so

33:53 - you're not taxed twice on income earned at a particular location.

33:58 - They get the credit, they would get it.

34:01 - Depending on how the, local ordinances are, generally

34:06 - they will receive it against income paid to their local residents.

34:10 - So if, if you're giving them the credit, is the city giving them the credit? Yes.

34:16 - Okay.

34:16 - The city is giving them the credit.

34:18 - Yes. As you do with residents, correct.

34:22 - Credit for their school district earned income tax.

34:25 - Correct. Now, now that the city has conceded

34:27 - this is a tax, it will be an earned income tax.

34:30 - It would be treated as such.

34:31 - And again, your Honor, to go back to, both justice

34:35 - Bronson, justice Donahue's questions, it's going to depend on where

34:40 - that person resides, even in the state, even in the state of Pennsylvania,

34:45 - Philadelphia has a completely different local income tax structure.

34:50 - Other places don't have school income taxes.

34:53 - Some are higher than others.

34:55 - Some don't allow a credit. Some do.

34:57 - And that's why the uniformity clause looks at the territorial limits

35:01 - of the taxing authority.

35:02 - So that is the key is the city of Pittsburgh.

35:05 - We cannot control everything that happens outside the city of Pittsburgh.

35:10 - And, that's been discussed by by this court,

35:14 - in the, life insurance, of Pennsylvania case where

35:19 - nonresident life

35:20 - insurance companies, foreign life insurance companies complained

35:24 - that there were other taxes that they were subject to.

35:28 - In addition to the 2% tax

35:30 - in Pennsylvania that domestic life insurance companies were.

35:34 - And the court said

35:36 - there's there's never going to be perfect uniformity in the state of Pennsylvania.

35:40 - Everyone pays 2%.

35:42 - That is an equalization.

35:44 - If you have to pay taxes, other places for other things.

35:48 - That is part of our taxing system.

35:51 - Again, I go back to my point. I'm not trying to belabor it.

35:53 - Sure, in the city of Pittsburgh, the only nonresidents

35:57 - that have to pay the 3% are nonresident

36:01 - entertainers for the income they earn

36:06 - at a publicly financed facility.

36:08 - That's correct.

36:09 - There is a separate classification of nonresidents and nonresident athletes.

36:14 - Entertainers.

36:15 - General Assembly, in your view, has the power and the authority

36:18 - to continue to do that kind of classification based on job

36:24 - and location, where they do their job based on the real life business interests?

36:29 - Yes, based on the business classification, your profession and where you do

36:34 - your profession, it depending on the profession and depending

36:38 - on the real business implications behind that profession.

36:42 - So again, the court and Hill and Meyer out of Ohio, the only one that's opined on

36:47 - whether athletes, entertainers can be a classification of their own,

36:51 - has said there are real world implications that allow you to classify

36:55 - athletes and entertainers differently than others.

36:59 - Mr. Armstrong,

37:01 - you are admitted here.

37:03 - Pro hockey from Columbus, Ohio.

37:06 - Yes. You're correct.

37:06 - Could we, tax you a little bit extra?

37:10 - I'm sorry.

37:11 - The pro hockey attorney from out of state.

37:14 - If if, if there is a legislative enabling act

37:20 - that allows you to tax income here by me appearing pro hockey.

37:25 - Absolutely.

37:25 - But for the record, I do pay taxes to the city of Pittsburgh

37:29 - because we have an office here and we generate income here,

37:32 - and therefore the apportionment of my income,

37:36 - because you're a partner at the correct apportionment of my income.

37:40 - That is situs to the city of Pittsburgh.

37:43 - We pay local income tax on that.

37:45 - We pay state taxes and other taxes based on school tax.

37:51 - I do not believe so, Your Honor.

37:53 - Yeah, I wish I were an athlete or entertainer.

37:56 - I would.

37:56 - If you are going to argue that you are neither athletic nor entertaining.

38:00 - Yeah,

38:02 - it's probably also true, Your Honor.

38:03 - So isn't that because having a law firm

38:06 - here in the city, you have a larger,

38:10 - intensity on the municipal services that the city offers?

38:15 - Certainly.

38:16 - But, Your Honor, you know, the earned income tax.

38:19 - And again, I go back to the language of the uniformity clause, and it talks

38:22 - about equal burden on the subject of the tax.

38:26 - The subject of the tax here is the earned income.

38:28 - So the benefit of earning that income is really what's being taxed.

38:32 - This is not necessarily a benefits or a privilege type.

38:35 - Taxation.

38:37 - We earn income and we pay taxes on it.

38:39 - Is there is the credit difference on the earned

38:41 - income tax as opposed to the taxes paid by the school district?

38:44 - And the reason I ask the question is because I know the the enabling statute,

38:47 - the legislation for the school district doesn't allow the school district

38:50 - to apply the earned income tax credit earned income tax.

38:54 - So isn't what we're talking about here really an attempt

38:57 - by the city of Pittsburgh to kind of evade that prohibition and the school tax,

39:01 - because my thought process is when you pay taxes, there's a burden.

39:05 - There's also a benefit.

39:06 - If I'm an out of town athlete or entertainer,

39:09 - I don't get any benefit for that 3%.

39:11 - Whereas somebody in the city of Pittsburgh who's equalized

39:14 - gets the benefit of the school district.

39:17 - Your Honor, this and this goes to the benefits theory.

39:19 - So, first I will say that, because the subject of the taxes

39:26 - earned income, this benefits theory or privilege theory doesn't apply.

39:31 - In fact,

39:33 - and that's that's briefed in our case.

39:37 - So in the Airway Arms Inc case,

39:42 - taxpayers may not successfully object on the grounds of the benefits theory

39:46 - to taxation for a general public use, which includes taxes for schools.

39:51 - It up to my original point, which was the school

39:53 - district isn't allowed to impose an earned income tax.

39:55 - It's based upon the residency status.

39:58 - Correct.

39:59 - The school district is permitted to impose an earned income tax

40:02 - on residents of the school district. Correct. We talk about 3%.

40:05 - 3%. Isn't this really just an attempt to kind of evade that prohibition?

40:09 - It is not, Your Honor.

40:10 - It's again, the and the uniformity clause has never

40:15 - and this is a you know, this is the key point here.

40:18 - It is not determinative who levies the tax.

40:21 - You look at the subject of the tax.

40:23 - This is a single tax. It taxes income.

40:26 - It is a public benefit whether it goes to the schools

40:29 - or if it goes to the city.

40:32 - And whether or not you get any direct benefit from the schools

40:38 - is also not determinative of whether the equalization

40:41 - of the overall tax burden meets the uniformity clause requirement.

40:45 - There are a number of individuals and families

40:49 - that pay the school income tax that don't receive a direct benefit

40:53 - from the schools, but there's a general benefit, as this court

40:56 - has stated and as briefed in our from a well-functioning, educated society

41:01 - that is, that is also a general indirect benefit

41:05 - that is enjoyed by nonresident athletes, entertainers.

41:13 - At the end of the day, Your honors,

41:17 - this is a rational basis,

41:20 - highly deferential review of the facility fee under the plain

41:24 - language of the uniformity clause, which requires equal or uniform tax

41:29 - burden on the subject that's being taxed within a particular class.

41:34 - Here we have a class of athletes, entertainers.

41:37 - The subject of the tax is their earned income at these facilities.

41:42 - Not only is the tax burden

41:45 - not disparate, it's identical.

41:49 - Again, regardless of where you live, there will be 3% withheld

41:53 - from your paycheck for money made in the city.

41:57 - If you're an athlete or entertainer, the state enabling statute permits this tax.

42:03 - You know the city didn't do this unilaterally.

42:06 - That state enabling statute still

42:09 - stands has not been challenged.

42:12 - There's a presumption of constitutionality.

42:15 - There's a heavy burden to strike down this statute.

42:20 - And if there's any doubt whatsoever, it should be upheld.

42:27 - All right.

42:28 - Thank you.

42:28 - Your honor argued.

42:29 - Let's hear from Mr. McManus.

42:33 - Also, pro hockey from Boston, I believe.

42:37 - Correct, Your Honor.

42:38 - Madam. Chris, you get rich today.

42:40 - You go. Could.

42:43 - Madam Chief Justice and may it please the court.

42:45 - Ryan McManus, on behalf of the players associations and the individual

42:49 - plaintiffs, and with me at counsel table is my colleague Steven Kidder.

42:55 - Your honor, this is a special tax

42:58 - applicable to nonresidents only of only

43:02 - particular professions.

43:06 - It is not uniform.

43:08 - And the city's entire argument,

43:10 - to the contrary rests on a false equivalency.

43:13 - There's no disputing that a 3% tax on nonresidents isn't equivalent,

43:18 - or even roughly equivalent to a 1% tax on residents.

43:22 - The city tries to manufacture uniformity here

43:25 - by pointing to the 2% tax

43:29 - to the school district that residents pay,

43:31 - that separate burden that residents pay for school district taxes.

43:35 - Now, of course, nonresidents also pay school district taxes wherever they live.

43:40 - City ignores that doesn't factor into its calculus at all.

43:44 - They may or may not, I mean, depending on the tax structure of their resident,

43:49 - city or borough, right?

43:51 - Correct. They pay to fund, they pay to fund schools where they live.

43:53 - Depending on the structure,

43:54 - it may be a separate school district tax, it may be county taxes.

43:58 - But for example, nonresidents of Pittsburgh, Pennsylvania.

44:01 - Exactly. They paid in Pennsylvania.

44:03 - If you if you reside in the suburbs, you're paying a school district tax there.

44:07 - The city you're not you're not getting a credit under the facility fee.

44:11 - That's really important.

44:12 - And I want to clarify that you're not getting a credit for two reasons.

44:16 - One is despite the city's admission

44:18 - in litigation, that this is a tax,

44:21 - the city's facility fee regulations still still instruct

44:26 - that you are not to list the amount paid in facility fee on your W-2 in the local

44:31 - tax box because, quote, this is a fee, not a tax.

44:36 - That's got to change since they're acknowledging it's a tax.

44:40 - Write Your Honor.

44:40 - They acknowledged at the Commonwealth Court that that regulation would change.

44:44 - It hasn't.

44:45 - It's still it still reads exactly the same.

44:47 - But that's not the only issue with the credits.

44:50 - The other issue with the credits is that the city is arguing,

44:53 - not that nonresidents are entitled to a credit against the facility

44:58 - fee that they pay to Pittsburgh for taxes, that they pay where they live.

45:03 - They're arguing the opposite.

45:04 - I think I heard different today, but I'll point you to the city's brief

45:10 - on page 26.

45:12 - They say nonresidents living in Pennsylvania are owed a credit

45:16 - for the facility fee against earned

45:19 - income taxes they owe their home community.

45:22 - They're arguing that it's the jurisdiction of residents

45:26 - that should be getting a credit.

45:27 - They're not giving the credit.

45:29 - Now that's backwards.

45:30 - As a matter of state law,

45:32 - the statute provides that you are entitled to a credit in the place

45:34 - where you work for taxes paid in the place where you live.

45:38 - I mean, I'm I'm confused then, because I thought,

45:42 - what your opposing counsel was arguing was that,

45:46 - the city of Pittsburgh processes the credit.

45:50 - Not that they give the credit I may have.

45:53 - I may have heard it differently,

45:54 - but it's not a question of of processing or the mechanics of it.

45:59 - The question is really,

46:01 - where are you paying the tax and where are you entitled to take a credit?

46:04 - Pittsburgh is not giving credit against facility

46:08 - fee taxes that are paid by nonresidents.

46:10 - What they're arguing in their brief is go claim a credit where you live.

46:14 - There's no statutory basis for nonresidents to claim a credit

46:18 - where they live against facility fee taxes paid.

46:21 - Government may say, well, the regulation says it's a fee.

46:25 - I'm I'm not going to give you a credit for a fee.

46:27 - Correct.

46:27 - And and, you know, they may have a problem and it's not listed on your it

46:31 - shouldn't be listed on your there. So as you understand that

46:36 - at the end of the tax year,

46:38 - there's no form that nonresident entertainers

46:42 - can file with the city that says this is what you have withheld on your 3%.

46:46 - It here's what I pay locally for school taxes.

46:50 - Give me a credit and give me a refund.

46:52 - There's nothing like that. Correct? There is nothing like that.

46:54 - So again, the the,

46:58 - this uniform credits is a significant problem here.

47:00 - It is not the only problem, but I want to be clear.

47:03 - Pittsburgh is not giving credit to nonresidents

47:06 - for the school district taxes or earned income taxes.

47:09 - Those nonresidents pay where they live, which goes to my picture, stood that.

47:12 - But I guess what I'm having trouble with is that,

47:17 - there seems to be some lag in,

47:21 - characterizing this through w-2s and what other other

47:24 - of our other forms they're generating out of the city of Pittsburgh.

47:28 - Now that the city has admitted or acknowledged that it's a tax, not a fee.

47:34 - I'm concerned somewhat that that is not actually that

47:37 - there's not follow up necessary follow up to that admission.

47:41 - And it requires, Your Honor, not just a change of the regulations

47:45 - and a change of the guidance, but

47:47 - Pittsburgh needs to change its position as to where this credit can be taken.

47:50 - Pittsburgh needs to be giving the credit, not demanding that

47:54 - the jurisdictions where athletes reside give the credit.

47:58 - Well, I don't understand that

47:59 - because it is up to the jurisdiction of where they reside ultimately, isn't it?

48:03 - Well, by by law, by Pennsylvania statute, you as a taxpayer

48:08 - are entitled to take a credit for taxes paid

48:11 - where you live against taxes paid to your place of work.

48:14 - So that's what the statute provides.

48:16 - They aren't saying that it should be the reverse here, they say,

48:19 - and again, that position is not consistent with statute.

48:23 - I want to point out also another issue in addition

48:26 - to the credits

48:26 - at the city Council with this issue argued before the Commonwealth Court,

48:31 - what was the city's position when this case was argued

48:34 - before the Commonwealth Court?

48:35 - Were they still claiming that it was a fee not a tax?

48:40 - No. They had conceded that it was a tax in the Commonwealth Court.

48:43 - They conceded it in the briefing before the Court of Common Pleas.

48:46 - That was where they first conceded that it was attached.

48:48 - So this has been this has been their revised position,

48:52 - so to speak, for a long time.

48:54 - And it's essentially always been their litigation position.

48:57 - Their litigation position

48:58 - has always been that that the regulation needs to be changed.

49:02 - As I understand it, they acknowledge that

49:03 - before the Commonwealth Court, but their position has also always been

49:08 - Pittsburgh doesn't need to give the credit.

49:10 - It should be given elsewhere.

49:12 - It should be given where they reside.

49:13 - And they never cited anything in support other than the fact that that makes sense.

49:17 - I mean, because how is Pittsburgh going to give the credit to, you know,

49:22 - with 20 other jurisdictions

49:25 - at issue here, wouldn't it always fall to the home

49:28 - jurisdiction, home residence, jurisdiction to give that credit?

49:33 - It does not, Your Honor, by law, and for all other, wage earners

49:37 - who earn income in Pittsburgh, who pay local taxes where they live,

49:42 - they are claiming a credit against Pittsburgh's tax and that Pittsburgh

49:46 - is not ultimately retaining that because they have to give the credit.

49:49 - So that is how it works.

49:50 - That's what the city imposed a 3% tax,

49:54 - facility tax on everyone.

49:57 - And the Pittsburgh school district

50:01 - had given credit for that 3% for residents.

50:06 - Would that violate the uniformity clause?

50:07 - I would that be uniform if if it gave uniform credits to everyone,

50:13 - then I think that what you're describing would be very close,

50:17 - to what the court, was addressing in Minnich.

50:20 - If you have a uniform tax at a uniform rate

50:25 - applicable to everyone

50:27 - residents, nonresidents, athletes and other wage

50:30 - earners, I think there's two critical distinctions here that are being made.

50:34 - If you had a uniform tax like that and everyone was uniformly given credits,

50:39 - then I think this looks very much like the miniature

50:41 - case, and I would acknowledge that.

50:42 - But that's very different from what the city has done here.

50:46 - This is not a uniform tax.

50:48 - And I want to make clear that, when you say

50:51 - has been done here, they aren't they aren't collecting this tax now.

50:54 - I mean, they are collecting this. Okay. And so,

50:58 - we know definitively that,

51:01 - no credit is being given for tax income taxes paid,

51:05 - in the athletes, home

51:08 - state or home municipality.

51:11 - We don't know that.

51:12 - I don't know that.

51:13 - And I thought that's what you just said.

51:15 - What I'm saying is by by law, there's no basis

51:17 - for someone to claim a credit where they live.

51:19 - The statute wouldn't allow them.

51:20 - No, I mean, that's why I asked the question.

51:22 - I mean, if this tax is being assessed now, there's,

51:27 - evidence as to how this works.

51:30 - Why don't we know that?

51:31 - Why don't you know that?

51:32 - Well, all we know is what the law would permit a taxpayer to claim.

51:35 - And the law.

51:36 - The law wouldn't permit them to claim this.

51:38 - So I have your client know the answer to that question.

51:40 - I mean, our clients have not attempted to claim credits where they reside

51:44 - because they don't believe they have a statutory basis to do that.

51:47 - And because they're not listing

51:49 - this on the W-2, because they're following the city's regulations.

51:52 - So they are not claiming credits where they reside,

51:56 - there may be some athletes that we don't represent.

51:58 - They're doing that,

51:58 - but our clients are not claiming credits

52:00 - where they reside because they don't think they have a legal basis to do it.

52:04 - And that was on your advice?

52:06 - Not not my advice personally, but

52:08 - I'm they're working with their personal tax advisors as well

52:12 - and question whether he advised them and what the law was.

52:16 - I also want to point out, in addition to ignoring the taxes

52:20 - that nonresidents pay where they reside, the city is also ignoring

52:26 - that school district taxes

52:28 - that residents of Pittsburgh pay,

52:31 - by law cannot be imposed on nonresidents

52:35 - and therefore can't justify this separate, even if equivalent burden

52:39 - that they're trying to put on nonresidents.

52:41 - That was that was sort of what I was trying to get at earlier.

52:43 - It seemed like an apples and oranges problem.

52:46 - Am I right? You're exactly right.

52:49 - It was the under this enabling statute, could there be any facility fee

52:52 - that that you could envision that would be constitutional?

52:56 - It would have to be a true fee.

52:58 - I think it's important to keep in mind the legislature did

53:01 - not authorize a tax, and that's a problem.

53:04 - The city's also never grappled with the legislature authorized a fee.

53:08 - That's significant.

53:08 - As a legislator,

53:09 - whether you're going to enact a tax or not is a significant political decision.

53:13 - They authorized a fee.

53:15 - The city has now conceded that what it's imposed is a tax,

53:18 - and it's a tax in excess of 1%.

53:20 - By the way, state law limits taxes on wages to 1%.

53:23 - They've never explained how they can tax this class at 3%.

53:27 - Well, I think that the General Assembly sort of

53:29 - knew that what they were doing here was dicey.

53:32 - They put they put they called

53:34 - it a fee, even though they put it in the local tax, enabling Act.

53:37 - And they specifically referenced on earned income

53:40 - and percentages, which look like a tax and not really a fee.

53:43 - And if it's a fee, then they run into the other problem,

53:46 - which is you're going to have a challenge.

53:48 - The fee. Is that reasonable? Is it?

53:49 - And and the argument would be it would be a tax.

53:51 - You know, that's you know, it's it's so it is

53:55 - it's it's everybody knew this day would come.

53:58 - It's kind of what I'm saying I think that I think that that's right.

54:01 - I think hypothetically, however, under this enabling act,

54:05 - it Pittsburgh could enact some type of fee that could withstand uniform.

54:10 - Correct.

54:11 - Something related to the cost of, you know, regulating

54:14 - professional athletes to the extent that they do.

54:18 - And I think I'm

54:19 - just getting back to the apples to apples or apples to oranges comparison.

54:23 - That's really the correct way to analyze uniformity.

54:27 - It has to be an apples to apples comparison.

54:29 - The question is, with respect to a particular tax burden,

54:34 - our taxpayers similarly situated

54:37 - if they're similarly situated, then the burden has to be uniform.

54:41 - If they're not similarly situated, then you don't weigh

54:44 - those various burdens against each other in a uniformity analysis.

54:48 - That's why a property owner in Pittsburgh can't be heard to object

54:52 - that their neighbor who doesn't own property pays less tax.

54:56 - They're not similarly situated.

54:58 - So that property tax burden isn't going to be considered in a uniformity analysis

55:03 - for the purpose of school district taxes.

55:06 - Residents and nonresidents are not

55:08 - similarly situated by law.

55:12 - Nonresidents can't be charged with school district taxes

55:15 - and as to the benefits, I understand you know, counsel's argument about not,

55:20 - pointing to the various degree to which people benefit from city services.

55:24 - The benefits here qualitatively different.

55:27 - It's not just a matter of degree.

55:28 - Residents can send their children to public schools.

55:31 - Nonresidents cannot.

55:33 - So and that's been codified by law by prohibiting Pittsburgh

55:38 - and other municipalities from taxing nonresidents with school district taxes.

55:42 - So you can't look at school district taxes

55:46 - as sort of a justification to impose a 3% tax on nonresidents.

55:52 - That's apples and oranges.

55:54 - You've got two apples on the scale, and then Pittsburgh's adding an orange.

55:57 - That's not appropriate.

55:59 - No, it's not because

56:02 - you had a uniform tax at a uniform rate.

56:05 - I don't, agree with the contention by council that had two different taxes.

56:12 - It was a ten mill tax applicable to residents on all of their income

56:16 - and applicable to nonresidents on the income

56:18 - that they earned in the city of Sharon.

56:19 - So you had a uniform tax at a uniform rate,

56:23 - and you had credits that were uniformly available to everyone.

56:27 - The issue in Minnich was that residents of the city of Sharon

56:31 - were paying a five mill school district tax,

56:34 - and they were claiming a credit for that tax.

56:36 - The plaintiffs in that case were not paying any school district taxes

56:40 - where they resided, and therefore they weren't entitled to claim a credit.

56:44 - There was no distinction being made by law.

56:46 - The distinction was in the personal circumstances of the individual taxpayers.

56:50 - That's very different here.

56:52 - We're not arguing that the court should overrule or narrow.

56:55 - It's a straightforward application of the uniformity clause.

56:59 - Pittsburgh has simply chosen, chosen to enact a very, very different tax scheme.

57:04 - And we think that the controlling, case here,

57:07 - as both lower courts determined, is the Danyluk decision.

57:11 - Indiana.

57:12 - Look just like Pittsburgh here.

57:15 - City of Johnstown enacted a tax that applied to nonresidents

57:18 - only $10 occupation tax.

57:22 - And like the city here, Johnstown defended that tax

57:25 - by pointing to a tax on residents and said, well, you have a $10 per capita tax

57:29 - on residents.

57:31 - But like the

57:32 - school district taxes here, the per capita tax

57:36 - Indiana look, could not, by law be imposed on nonresidents.

57:41 - And as a result, this court said that tax burden on residents

57:45 - can't justify an equivalent burden on nonresidents.

57:48 - You're not permitted by law to tax

57:50 - residents, nonresidents on the per capita tax.

57:53 - That's what this court held Indiana look at as both lower courts determined

57:56 - that is controlling here

57:58 - that that was not dicta in the Dana look decision, by the way.

58:02 - It's a short decision.

58:04 - It's two pages no fewer than three times.

58:07 - There's this court saying that decision that the tax

58:10 - is violative of, of the uniformity requirement.

58:13 - I think the confusion on this point arises from the fact that

58:16 - the court was trying to understand what this tax was.

58:20 - You got a tax on nonresidents only, and Johnstown was saying

58:23 - it's the same as the tax on residents.

58:25 - And the court said it's

58:26 - not the same as a tax on residents because that's a per capita tax.

58:29 - And you can't impose a per capita tax on residents.

58:32 - So this is something different.

58:34 - It's not the same as that.

58:35 - And because it's a different tax applicable to only nonresidents,

58:39 - it's not uniform.

58:40 - And they could they redo the ordinance and say,

58:44 - oh, try to bring it more in line with Medicaid and just say every

58:48 - athlete, regardless of whether they live where they live, pays 3%.

58:53 - And if you

58:54 - pay a local school district earned income wherever you live,

58:58 - you can get a credit against that.

59:02 - That would still be different from Minnick, in

59:03 - that it would be distinguishing athletes from everybody else.

59:06 - Well, let's I ask my questions about that, but let's look

59:11 - assume that's okay.

59:12 - Assuming applied to everyone. Yeah. Yeah.

59:15 - So if if it applied 3% tax uniformly to residents and nonresidents

59:20 - have a credit of any profession could you could you could submit a form

59:24 - at the end of the tax year that says, this

59:27 - is what you withheld from me for this 3%.

59:30 - This is what I paid in local school district, you know, earned income tax.

59:34 - I want to credit everybody did it.

59:36 - If they if they did that, it would look very much like me.

59:39 - And I think it would be it would be sustainable under the uniformity clause.

59:42 - It's this is very different in multiple ways.

59:45 - As we talked about the credits is one problem.

59:47 - But also this does not apply uniformly to everyone.

59:52 - This singles out particular professions and charges them at a higher rate.

59:57 - 296 This court has always treated wage income,

01:00 - 04.434 which is what this tax is imposed on as a single class.

01:00 - 10.206 And it is always striking down distinctions between and among wage

01:00 - 11.040 earners.

01:00 - 14.677 That's why it struck down a graduated income tax in the Kelly case.

01:00 - 17.547 That's why it struck down the deductions and exemptions.

01:00 - 20.717 And Amidon and I'll point the court to one more case.

01:00 - 23.453 It's the butcher versus City of Philadelphia case.

01:00 - 25.254 It's cited in one of the concurring opinions.

01:00 - 26.556 And on and on.

01:00 - 29.692 It's from 1938, and it dealt with an early version

01:00 - 33.396 of Philadelphia's income tax in butcher is significant

01:00 - 36.733 because it struck down portions of the Philadelphia income tax.

01:00 - 41.137 They granted exemptions for domestic servants and formerly brewers.

01:00 - 45.208 In other words, exemptions that carved out particular professions

01:00 - 48.211 for differential treatment were struck down.

01:00 - 50.880 And that's what this this statute does.

01:00 - 54.384 This ordinance does it targets particular professions.

01:00 - 58.321 And really what it does is it tries to use professions

01:00 - 02.759 as a proxy for income, and it tries to impose, in practice,

01:01 - 04.994 the type of graduated income tax

01:01 - 08.031 that this court has never allowed to say that you can say that.

01:01 - 11.601 However, you have to also acknowledge that professional

01:01 - 15.171 athletes and entertainers coming in to use our stadiums

01:01 - 18.007 have placed a

01:01 - 21.244 burden on our city's resources.

01:01 - 25.214 You know, additional security, additional police, additional,

01:01 - 29.652 counties, sorry, city services,

01:01 - 33.990 to take care of those athletes

01:01 - 37.960 and those entertainers and what impact they have on the city.

01:01 - 40.063 I mean, you can't ignore that, can you?

01:01 - 41.764 So we don't ignore that.

01:01 - 43.199 And we acknowledge that the burdens

01:01 - 46.836 that any profession imposes on the city are going to vary widely,

01:01 - 49.839 and that professional athletes who perform at public stadiums certainly

01:01 - 54.577 require an extent of city services that perhaps lawyers like me do not require.

01:01 - 57.847 But there are many other, you know, services.

01:01 - 00.917 For example, if Taylor Swift comes in place

01:02 - 03.920 not at one of these stadiums, but in a public park

01:02 - 08.524 that's going to impose just as much, if not more strain on city resources.

01:02 - 11.661 And yet she's not going to pay the facility fee for that appearance.

01:02 - 15.932 She will if she performs it in particular stadiums and I think more importantly,

01:02 - 19.802 imposing differential tax

01:02 - 23.473 rates based on the perceived burden

01:02 - 28.911 that different professions impose on the city is really inconsistent

01:02 - 33.382 with the purposes behind enactment of the uniformity clause.

01:02 - 34.417 And this court has detailed

01:02 - 37.820 the history of the uniformity Clause at length and Nextel and Mount Airy.

01:02 - 42.625 The Uniformity Clause was enacted based on the perception

01:02 - 46.062 that particular industries were getting unfair,

01:02 - 49.065 perhaps rational, but unfair subsidies.

01:02 - 52.401 They were, being exempted from from tax laws,

01:02 - 55.505 causing the burden to fall disproportionately on everybody else.

01:02 - 58.975 So it's clear from the history of the uniformity clause

01:02 - 04.046 that you can't say a particular industry provides such public

01:03 - 07.416 benefits, that we're going to exempt them from taxes.

01:03 - 11.254 For example, if the city of Pittsburgh was to say, you know what,

01:03 - 14.524 the future is I and we're going to exempt

01:03 - 17.760 anybody's income that's earned for working at a data center.

01:03 - 21.330 I think that would run afoul of not only this court's cases,

01:03 - 24.133 but the history of the uniformity clause.

01:03 - 27.136 What the city is arguing is really just a variation of that.

01:03 - 30.606 It's trying to say, notwithstanding that you couldn't do that,

01:03 - 35.878 you can try to consider and ascertain different burdens that different

01:03 - 39.715 professions are placing on the city and tax them differently.

01:03 - 40.950 Because of that.

01:03 - 44.320 And I submit that that's the same as trying to weigh the various benefits

01:03 - 47.523 that different professions or different industries are conferring

01:03 - 51.327 and doling out preferential or non preferential tax treatment based on that.

01:03 - 53.129 That's the understand the argument.

01:03 - 55.731 Is there anything you'd like to say in summation?

01:03 - 57.300 Can I ask a question before you sum up.

01:03 - 58.467 And I really should have asked,

01:03 - 01.571 opposing counsel,

01:04 - 04.807 this question where in the record, if anywhere,

01:04 - 10.179 can we determine the manner in which credits

01:04 - 14.851 will be given or are being given

01:04 - 18.721 to, the your clients?

01:04 - 19.589 Sure.

01:04 - 22.491 So I'll point to, first of all,

01:04 - 25.761 the state law on credits, which governs where that they can be claimed.

01:04 - 26.796 I understand the law.

01:04 - 30.366 I'm, I'm, I'm asking for where in the record

01:04 - 33.769 can we determine what the city is doing?

01:04 - 37.707 I'm not sure that there's going to be anything in the record,

01:04 - 40.142 regarding what the city is doing beyond what it's arguing

01:04 - 43.212 in, in its briefs, I can point you to the existing regulation,

01:04 - 44.413 and we know they know that.

01:04 - 45.414 Okay. Yeah.

01:04 - 47.850 I think the only looking for facts.

01:04 - 50.386 I don't think there are facts, in the record about credits

01:04 - 53.856 being denied per se, because, again, no one has claimed the credit.

01:04 - 56.492 They don't think law entitles in to.

01:04 - 56.893 All right.

01:04 - 57.894 Thank you very much.

01:04 - 00.596 Although counsel very well argued.

01:05 - 03.332 Although we do not permit rebuttal

01:05 - 06.302 in this courtroom, I am not precluded.

01:05 - 10.706 Justice is not precluded from asking a question.

01:05 - 13.743 In the nature of rebuttal, Mr..

01:05 - 14.543 I should I

01:05 - 19.248 can you enlighten us as to

01:05 - 23.753 whether the city of Pittsburgh has

01:05 - 27.657 amended its forms,

01:05 - 31.928 created new forms to account for this

01:05 - 35.064 acknowledgment by the city

01:05 - 38.567 that this is indeed a tax, not a fee.

01:05 - 40.703 And if not, why not?

01:05 - 42.471 To the best of my knowledge, your honors.

01:05 - 46.676 Because there to to, Justice Donahue's point, there isn't anything in the record

01:05 - 50.980 related to the handling of credits to how do we decide this end.

01:05 - 54.784 I mean, when you rely so heavily on Minick, which which,

01:05 - 58.254 which involves, credits for,

01:05 - 01.223 earned income tax paid,

01:06 - 04.860 you know, to another source sure to questions the credits

01:06 - 08.731 and that just a standard who's concerned about and also just

01:06 - 12.134 the characterization in your,

01:06 - 15.538 processing procedures and in your forms

01:06 - 19.675 as to whether it's a tax or I think there are a number of questions.

01:06 - 23.980 So, I will start with Chief Justice Todd to the to the best of my knowledge,

01:06 - 27.483 the regulations have not been amended

01:06 - 31.387 and there have not been creation or at least finalization of new forms.

01:06 - 35.825 The reason for that is because this court could do any number of things.

01:06 - 39.628 And so we, the city, was waiting for some finality

01:06 - 44.400 on, what this law may or may not look like at the end of the day

01:06 - 48.537 and what parameters may or may not be imposed on the long answer? No

01:06 - 50.072 thank you.

01:06 - 51.607 I thought so to.

01:06 - 52.875 Okay, okay.

01:06 - 55.378 Oh, could could you answer Justice Donahue's question.

01:06 - 59.015 Yes. In your, in your question was how can we decide this case

01:06 - 03.719 if the court know what you mean, in order to, effectuate a credit,

01:07 - 07.623 well earned income tax paid somewhere else?

01:07 - 11.594 The answer to that question directly, Your Honor, is we will comply with what

01:07 - 14.530 the laws say in each of the respective jurisdictions,

01:07 - 17.533 because different jurisdictions have different credits.

01:07 - 22.438 And so and and just take it one step further credit here.

01:07 - 25.641 I thought I asked this question. You did.

01:07 - 27.543 And that is exactly what I said.

01:07 - 32.181 To the extent that it requires to give credit where the where you work

01:07 - 33.449 credit will be given here.

01:07 - 36.986 But I want to be very clear the way professional athletes, entertainers

01:07 - 40.056 are paid, unlike us who receive

01:07 - 43.059 salaries, they receive compensation

01:07 - 46.429 entertainers based on where their concerts are.

01:07 - 51.067 So when Taylor Swift performs here and makes $20 million,

01:07 - 53.502 she's not paying taxes to Nashville, Tennessee,

01:07 - 55.438 because that income isn't generated. There.

01:07 - 57.139 That's that's

01:07 - 00.309 why there's never there can never be perfect uniformity.

01:08 - 02.511 And that's why you need to look at the territory.

01:08 - 06.282 I have to follow up on, on this this line of questioning which in,

01:08 - 09.351 in this rebuttal, situation,

01:08 - 11.353 you can't tell us.

01:08 - 16.759 I mean, are you telling us that there's that there is a way for us to uphold this

01:08 - 20.262 under the promise or guys or possibility

01:08 - 23.799 that the city is going to amend its regulations, its forms,

01:08 - 28.204 and allow a credit that heretofore they have never seem willing to provide.

01:08 - 30.072 Certainly, Your Honor, where the city is going

01:08 - 33.075 to comply with the law, which requires credit to be given.

01:08 - 37.346 But but you're the statute, the statute

01:08 - 40.382 and the regulations

01:08 - 43.352 and the forms don't allow this.

01:08 - 45.121 And that's what's in front of us.

01:08 - 49.291 It's not the scheme that you could craft that could pass constitutional muster.

01:08 - 51.127 It's what's in front of us now.

01:08 - 52.895 And right now.

01:08 - 55.030 Right now, your regulations don't

01:08 - 58.167 allow any declaration as a as a treatment, as a tax.

01:08 - 01.470 That's the scheme that's in front of us, not some hypothetical,

01:09 - 05.341 other scheme that you might be able to craft.

01:09 - 06.742 The solution would be for us

01:09 - 09.745 if we say it's unconstitutional to strike this one down

01:09 - 13.115 and let the city try to craft a new one, that might comply with our decision.

01:09 - 13.482 Sure.

01:09 - 16.552 Your Honor, I would I would respond to that by saying, again,

01:09 - 17.486 I believe the

01:09 - 20.523 credits are a little bit of a red herring, because in the city of Pittsburgh,

01:09 - 22.858 you're paying no more than 3%.

01:09 - 23.726 I understand, but like,

01:09 - 28.531 my simple point is, you can't promise us the city is going to do anything.

01:09 - 29.365 We have to deal with

01:09 - 32.835 what's in front of us now, what's not, what's hypothetically correct.

01:09 - 33.636 And what's in front of you

01:09 - 36.872 now is the city has acknowledged this is a tax and will be treated as such.

01:09 - 39.575 And you've acknowledged in this litigation.

01:09 - 40.042 That's correct.

01:09 - 43.078 But your regulation, which your city is bound to follow until

01:09 - 46.815 it's repealed or declared unlawful, says otherwise.

01:09 - 48.717 And I would I would conclude with your Honor,

01:09 - 51.921 even under the current regulation, which does not allow a credit,

01:09 - 55.758 because within the city of Pittsburgh's territory

01:09 - 58.928 limits, which is in the plain language of the uniformity clause,

01:09 - 03.999 within that territorial limit, all athletes, entertainers pay not a

01:10 - 08.304 roughly uniform tax burden on income, the exact same tax burden on income.

01:10 - 11.373 What happens outside of the territorial limits of the city of Pittsburgh

01:10 - 14.910 is not a concern or determinative under the uniformity clause.

01:10 - 15.444 Okay.

01:10 - 17.846 This is

01:10 - 21.984 unusual for us to do, but I'm going to request further briefing

01:10 - 25.321 on this last issue, on the issue of what the city has done

01:10 - 29.091 and what it has not done and why, with respect to,

01:10 - 34.630 this being a an acknowledgment that this is a tax, not a fee, and also

01:10 - 38.834 the credit issue, how it's being handled and how it should be handled.

01:10 - 42.638 What the impact is legally in Alaska,

01:10 - 47.076 our sanitary to set up an expedited briefing schedule.

01:10 - 48.644 We want to get this right.

01:10 - 52.147 And I think it's important that we understand your positions on this issue.

01:10 - 54.016 So thank you very much, both of you.

01:10 - 57.019 Thank you, Your Honor.

01:10 - 00.389 The next case is Commonwealth of Pennsylvania

01:11 - 04.260 versus Jeter and our criminal justice system.

01:11 - 05.761 Few protections are as sacred

01:11 - 08.731 as the right to a fair trial before an impartial jury.

01:11 - 13.035 Juror misconduct can arise when a juror receives information

01:11 - 16.872 or is otherwise influenced by factors outside of the courtroom.

01:11 - 20.743 If the government or defendant learns of the misconduct, may

01:11 - 24.046 they may ask the trial court to hold an evidentiary hearing.

01:11 - 29.351 This case addresses whether an affidavit detailing a conversation and prayer

01:11 - 32.621 between a juror and their father during

01:11 - 35.524 jury deliberations causes sufficient

01:11 - 39.728 concerns of misconduct to require the trial court to hold a hearing

01:11 - 42.498 in 2020.

01:11 - 45.467 Mr. Jeter was convicted of first degree murder.

01:11 - 46.735 After the trial, Mr.

01:11 - 51.140 Jeter's legal team learned that one of the jurors named juror number

01:11 - 56.845 three, might have engaged in misconduct that could impact the verdict against Mr.

01:11 - 57.880 Jeter.

01:11 - 02.051 Mr. Jeter requested that the trial court conduct an evidentiary

01:12 - 05.821 hearing to investigate juror number three, potential misconduct,

01:12 - 09.625 and supported that request with an affidavit from one of Mr.

01:12 - 11.460 Jeter's lawyers.

01:12 - 15.331 The affidavit stated that based on information from a third party,

01:12 - 18.334 juror number three discussed the case with her

01:12 - 21.337 father while the case was pending,

01:12 - 26.075 prayed with him about it, and then decided to convict Mr.

01:12 - 27.443 Jeter.

01:12 - 32.014 The trial court denied the request for a hearing in support of its decision.

01:12 - 35.684 The trial court noted that the affidavit was based on hearsay,

01:12 - 40.456 which is an out of court statement made by someone else that was too vague

01:12 - 43.926 and did not clearly show that juror number three was influenced

01:12 - 45.627 by the reported conversation.

01:12 - 47.396 Mr. Jeter

01:12 - 50.399 appealed the trial court's decision to the Superior Court,

01:12 - 53.335 which disagreed with the trial court's finding

01:12 - 57.439 and found that the affidavit allegations implied that juror number three

01:12 - 01.977 discussed the case with her father because she could not decide how to vote

01:13 - 05.581 and were serious enough to require an evidentiary hearing.

01:13 - 10.185 The Commonwealth, in its role as the criminal prosecutor,

01:13 - 14.189 then sought review by the Supreme Court, which agreed to consider

01:13 - 17.192 whether the Superior Court was correct in ruling that

01:13 - 20.162 the trial court should have held an evidentiary hearing

01:13 - 25.234 based on the evidence in the affidavit suggesting possible juror misconduct.

01:13 - 29.805 In this appeal, the Commonwealth contends that the trial court's decision

01:13 - 34.777 not to hold an evidentiary healing hearing fell directly within its authority

01:13 - 39.081 and should not be disrupted unless it abused its discretion.

01:13 - 40.949 An abuse of

01:13 - 46.288 discretion means that the trial court acted unreasonably, misapplied the law,

01:13 - 49.391 or otherwise acted with prejudice, bias, or ill will.

01:13 - 54.863 The Commonwealth argues that not only did the trial court not abuse its discretion,

01:13 - 58.767 but the Superior Court failed to show how the trial court did.

01:13 - 02.871 Instead, according to the Commonwealth, the record reflects

01:14 - 05.941 that the trial court's decision not to hold a hearing was based on

01:14 - 09.778 a thorough review of the law and a careful application of the law

01:14 - 14.616 to the facts reported in the affidavit, and, moreover, that the affidavit is vague

01:14 - 17.920 and does not establish that juror number three was influenced

01:14 - 21.190 by the reported conversations. As Mr.

01:14 - 24.193 Jeter responds that the trial court's decision not to hold

01:14 - 28.464 a hearing was wrong, and that the Superior Court properly reversed that ruling.

01:14 - 31.900 Mr. Jeter disagrees with the Commonwealth's position that

01:14 - 36.138 an abuse of discretion by the trial court must be found to reverse its ruling.

01:14 - 41.410 He claims that the Supreme Court's prior reviews of orders denying evidentiary

01:14 - 46.982 hearings on a claim of external juror influence considered the evidence de novo,

01:14 - 50.886 meaning it was considered without deference to another court.

01:14 - 54.523 But regardless of the standard views, Mr.

01:14 - 58.460 Jeter claims that the affidavit raises important questions about juror number

01:14 - 02.264 three's potential misconduct and the fairness of the trial,

01:15 - 06.869 and points out that the Supreme Court has previously ruled that even vague,

01:15 - 09.872 hearsay allegations of misconduct

01:15 - 12.975 are enough to warrant an evidentiary hearing.

01:15 - 16.078 Let's listen to the parties oral arguments.

01:15 - 19.681 Madam Chief Justice and Justices of the court may please the court.

01:15 - 20.782 My name is Shawn Dryer.

01:15 - 23.452 I'm assistant district attorney in Beaver County.

01:15 - 25.921 I'm here with, my boss.

01:15 - 28.223 Nate Bible, our district attorney.

01:15 - 31.226 To explain to this court why,

01:15 - 34.830 the Superior court should be reversed,

01:15 - 37.533 and the grant of,

01:15 - 40.569 the hearing be reversed, and the trial court

01:15 - 44.973 trial court's denial of an evidentiary hearing in this case should be affirmed.

01:15 - 50.846 Your honor, I believe that

01:15 - 55.083 the issue in this case can really be viewed under two different lenses.

01:15 - 58.487 One a substantive one and the other one a procedural one.

01:15 - 03.125 I think the substantive question is what showing does a,

01:16 - 06.728 a defendant who's been convicted

01:16 - 09.731 and that conviction is supported by,

01:16 - 11.700 the evidence?

01:16 - 14.536 What type of showing does such a defendant have to make

01:16 - 19.041 in order to, trigger an evidentiary hearing

01:16 - 22.044 that would require the jurors from that case,

01:16 - 25.280 or at least one of the jurors from that case to appear,

01:16 - 29.217 be examined and cross-examined in a formal proceeding.

01:16 - 34.623 The other question, the procedural lens which should be applied

01:16 - 38.093 is whether or not the trial court answered that question

01:16 - 42.230 in a way that was manifestly unreasonable or otherwise

01:16 - 46.101 constituted an abuse of discretion or to the contrary.

01:16 - 49.571 Was that decision, fully supported by the record

01:16 - 54.176 with respect to the substantive issue,

01:16 - 56.511 that is to say, what does a defendant

01:16 - 00.248 have to provide or show in order to trigger a hearing?

01:17 - 04.686 I believe that the, the answer was provided,

01:17 - 09.625 in, among other cases, the cases that the Chief Justice, wrote

01:17 - 13.061 when she was a, judge on the Superior Court,

01:17 - 16.298 Commonwealth versus Messersmith,

01:17 - 20.969 which says it is only in clear cases of improper conduct by jurors,

01:17 - 26.174 evidenced by competent testimony that a verdict which is fully supported

01:17 - 29.177 by the evidence should be set aside in a new trial granted.

01:17 - 32.814 I'd note that that standard,

01:17 - 38.754 comes from a case that really in 1934,

01:17 - 42.591 Friedman versus Roth brothers, articulated the same standard.

01:17 - 45.661 So it's been nearly for a century that it's been clear that that's what,

01:17 - 49.031 in this type of circumstance, a,

01:17 - 51.533 a defendant needs and needs to do.

01:17 - 54.736 So, you know, I guess you can find language,

01:17 - 59.541 and. Well,

01:17 - 03.045 how do you reconcile that with the fact that trial judges

01:18 - 06.048 all the time make discretionary

01:18 - 09.084 assessments, decisions

01:18 - 12.421 to afford an evidentiary hearing?

01:18 - 15.424 When counsel bring to the judge's attention,

01:18 - 20.162 certain allegations or environments, there's a there's discretion

01:18 - 24.933 in Pennsylvania for Common pleas judges to to order an evidentiary hearing.

01:18 - 27.936 It happens every day across all areas of law.

01:18 - 30.038 And then it's at that hearing.

01:18 - 31.740 It's at that hearing.

01:18 - 34.242 If the judge decides to give that hearing,

01:18 - 37.279 that the test comes in as to whether there's competent evidence,

01:18 - 42.117 in other words, this this barrier, you're you're trying to,

01:18 - 46.021 declare or validate here.

01:18 - 50.492 Is that, that the admissibility has to be determined

01:18 - 54.863 prior to even getting an evidentiary hearing.

01:18 - 59.768 And that seems at war with the way law is practiced in Pennsylvania.

01:18 - 00.368 I mean, it would be

01:19 - 03.538 I think it would be a surprise to judges across the Commonwealth.

01:19 - 05.474 Well, my

01:19 - 09.478 answer to that, justice fact is that in this particular instance,

01:19 - 13.081 in the particular posture of this case, there's already been a verdict.

01:19 - 17.319 There was a, three day for a deer, a seven day trial.

01:19 - 21.189 And I think approximately, probably one day of deliberation

01:19 - 23.458 stretched over two days

01:19 - 25.460 where the case had been

01:19 - 28.463 thoroughly explored, the case had been tried.

01:19 - 31.500 The defendant was afforded the full panoply of rights,

01:19 - 35.070 that all defendants are afforded under our constitution.

01:19 - 36.338 And a verdict was issued.

01:19 - 39.741 A verdict was issued by a jury beyond a reasonable doubt.

01:19 - 43.245 And that verdict has some degree of, of,

01:19 - 46.248 sanctity, if you will.

01:19 - 49.284 I believe that I just did I mean, we all I think we all understand

01:19 - 53.021 and respect the sanctity of a jury verdict that that's I mean, that's a given.

01:19 - 55.290 I thought the question

01:19 - 58.293 was whether there was some,

01:19 - 02.164 you know, some gold standard that says,

01:20 - 07.402 because if we say it, it's going to be a new standard

01:20 - 10.672 that, judges in Pennsylvania cannot,

01:20 - 15.277 cannot order an evidentiary hearing if in their discretion,

01:20 - 19.581 they think one side or both sides have have,

01:20 - 22.651 made a showing that they should be able to

01:20 - 25.620 develop evidence they say is out there.

01:20 - 29.457 I mean, because motions courts in Pennsylvania, civil criminal family,

01:20 - 32.928 they order hearings every day when they decide

01:20 - 36.498 a party should have an opportunity to lay down a record.

01:20 - 40.602 Well, I would respectfully submit, just this fact

01:20 - 45.006 that this is not a new standard, that this is maybe a clarification

01:20 - 49.211 of what the standard is and has been at least since 1934.

01:20 - 52.314 But in a situation where one party

01:20 - 55.317 is attempting to overturn or bringing the question,

01:20 - 58.453 a verdict of a jury, they have to have something.

01:20 - 00.889 If they don't have to have something.

01:21 - 04.159 Competent evidence that shows some possibility of prejudice.

01:21 - 07.162 I believe that is the standard counsel.

01:21 - 10.532 You keep saying that that you keep referring to competent evidence.

01:21 - 15.804 I mean, the only incompetent evidence in this situation would be evidence

01:21 - 18.840 that was proffered to show what happened in the jury room.

01:21 - 23.278 Otherwise, if the affidavit alleges in,

01:21 - 28.049 facts that which support a conclusion

01:21 - 32.187 that there was outside influence that would be competent evidence.

01:21 - 37.525 I mean, competence is defined by what's permissible and what's not permissible.

01:21 - 43.531 Is somebody alleging that juror one said this to juror two in the jury room.

01:21 - 44.833 That would be incompetent.

01:21 - 47.836 That year. This is outside influence.

01:21 - 51.106 That would be one example of incompetence.

01:21 - 54.342 Your Honor, I believe under rule 6 or 2 of the rules of evidence

01:21 - 56.811 that requires one standard of competency,

01:21 - 00.181 one requirement of competency is firsthand knowledge.

01:22 - 03.485 And in this affidavit, where do you get that?

01:22 - 06.688 I mean, what affidavit isn't going to have hearsay?

01:22 - 09.925 I mean, there was hearsay in all of the cases

01:22 - 12.928 that, we've dealt with before in this situation.

01:22 - 16.531 Hearsay is a rule that comes into play at a proceeding.

01:22 - 20.135 So if a judge decides to have a hearing on this

01:22 - 25.407 and somebody takes the sand and says, he told me that, she said, that's hearsay.

01:22 - 28.944 They're going anywhere with that at a hearing, somebody would have, with

01:22 - 32.013 direct knowledge, would have to appear on the stand and testify.

01:22 - 37.018 But an affidavit is always going to contain hearsay.

01:22 - 40.755 Hearsay, the affidavit is hearsay.

01:22 - 42.057 If I could just

01:22 - 45.193 if I could just respond to the two points, I'm not sure that I mean,

01:22 - 50.031 if the lawyer in this case had actually spoken with the father

01:22 - 53.501 as opposed to merely with the,

01:22 - 57.038 the soon to be ex father in law

01:22 - 00.108 who supposedly reported comments from the father.

01:23 - 02.944 If she had gone to the father when she could have done that.

01:23 - 05.947 Carter case doesn't have hearsay.

01:23 - 10.118 You're saying there's too much hearsay in this affidavit to allow the court

01:23 - 13.355 to make a discretionary decision,

01:23 - 16.358 that he or she wants to hear evidence?

01:23 - 19.227 Well, I'm saying that there are three levels

01:23 - 22.530 of hearsay in this particular affidavit, and I would contrast it.

01:23 - 25.533 Your honor said that all the cases had hearsay.

01:23 - 29.170 I don't believe, Your Honor, with respect, that the Pratt case

01:23 - 32.774 that the letter from the juror in Pratt,

01:23 - 36.011 was impacted by hearsay.

01:23 - 40.281 In that case, the juror reported what she observed

01:23 - 45.820 in the in the the deliberation room, specifically the fact that other jurors

01:23 - 50.091 had introduced evidence from other medical professionals that they had consulted.

01:23 - 53.561 And she said this appears to have affected the verdict.

01:23 - 58.700 So I don't know that that is hearsay, at least in the same sense in which

01:24 - 02.103 somebody,

01:24 - 05.573 supposedly told their father, who supposedly told they assumed to be

01:24 - 10.145 a father in law, who told me whatever was supposed to be said.

01:24 - 13.548 Isn't that or aren't you conflating that

01:24 - 17.652 the standard for

01:24 - 21.389 getting an evidentiary hearing with the standard for getting a new trial?

01:24 - 26.895 I mean, it seems like you're frontloading this to the extent that that you would

01:24 - 31.833 foreclose the evidentiary hearing in service of denying the new trial.

01:24 - 32.767 We're not there yet.

01:24 - 35.303 So I think you're right, Your Honor.

01:24 - 37.672 So the question is, what does the defendant

01:24 - 41.776 or the disappointed litigant have to show in order to get there?

01:24 - 45.747 Or is this type of hearing, this type of evidentiary hearing,

01:24 - 50.018 supposed to be granted in every case or in in many, many more cases,

01:24 - 53.121 which is what I believe you will see come about

01:24 - 56.391 if you make it easier and in many cases have started off.

01:24 - 59.194 I mean, this is a very peculiar situation, isn't it?

01:24 - 00.295 Well, this is peculiar,

01:25 - 04.332 but the notion that defendants who have lost a trial and are facing life in prison

01:25 - 07.869 are going to grasp at any possibility to get out of that situation.

01:25 - 11.172 That is not unusual at all, Your Honor, and my view respectfully

01:25 - 13.508 so I think that and this goes,

01:25 - 15.510 but Mr.

01:25 - 18.980 Jeter, in his brief, argues that this case really isn't

01:25 - 21.983 worthy of, of your attention because it's,

01:25 - 26.654 an attempt to have error review instead of fact public policy.

01:25 - 29.924 I think this goes to the heart of the question of whether or not

01:25 - 34.696 this court is going to establish a, a system in which jurors,

01:25 - 39.300 as a routine matter, can expect not only to have to go to jury duty

01:25 - 43.004 and go through all the burdens, that they willingly undertake.

01:25 - 44.672 It's a it's an impressive thing.

01:25 - 48.243 What these folks do, they're not only going to have to do that.

01:25 - 50.879 They're going to expect afterwards.

01:25 - 54.215 People are going to call them back into court maybe a couple of weeks,

01:25 - 57.719 maybe a couple of years later and question what happened

01:25 - 01.289 either in the jury deliberation room or outside the jury deliberation.

01:26 - 02.957 Is that argument,

01:26 - 06.194 that by by the

01:26 - 10.231 the focus on the six and a 6 million minus

01:26 - 13.768 the ability of,

01:26 - 18.373 nurses to ask for more evidentiary hearing

01:26 - 22.076 on what went on in the jury room really focuses on

01:26 - 26.247 two limited, one being one

01:26 - 29.784 information that leads to an outstanding.

01:26 - 35.690 Well, there's two, two standards.

01:26 - 38.593 There's,

01:26 - 41.863 prejudicial information not of record and beyond common knowledge

01:26 - 45.934 and experience or an outside influence brought to bear on any juror.

01:26 - 50.672 So again, my position, Commonwealth's position in this case is that

01:26 - 55.476 a person seeking that type of hearing has to show by

01:26 - 59.547 some sort of prima facia, competent evidence

01:26 - 02.817 that that that that is a real possibility.

01:27 - 09.390 I, I come to, a line a little bit here with the other end of the bench,

01:27 - 13.428 because I hear your arguments about the affidavit

01:27 - 18.032 and based on the fact that it's hearsay and truly it's layered hearsay,

01:27 - 22.070 it could be, affiant gotten a better source of,

01:27 - 25.440 information for her affidavit.

01:27 - 26.741 Surely could.

01:27 - 27.842 But it seems to me.

01:27 - 30.178 Isn't the way that you test.

01:27 - 33.181 Testify is by giving them an evidence of cherry dealing.

01:27 - 36.384 Otherwise, you're going to always deal

01:27 - 39.387 with some level of hearsay.

01:27 - 41.656 Pardon me?

01:27 - 43.691 Just as many.

01:27 - 46.694 Well, again, I think if if,

01:27 - 49.864 Justice Mundy, you're proposing, a rule that essentially

01:27 - 53.034 they don't have to make any sort of showing in order to get a hearing,

01:27 - 56.537 then these hearings are going to be routine procedures

01:27 - 00.008 attached to the end of every trial or many trials.

01:28 - 04.946 Every may be a bit of a hyperbole, but many trials are now going to feature

01:28 - 08.883 this post-trial hearing about what may or may not have occurred

01:28 - 11.886 in the jury deliberation room at Commonwealth.

01:28 - 13.321 So why don't you share with us?

01:28 - 16.291 If we were to decide in your favor, what is it?

01:28 - 18.826 What is it that we should write like?

01:28 - 21.062 What is the threshold showing of prejudice,

01:28 - 25.533 competent evidence of potential prejudice,

01:28 - 28.636 that is to say, something more than,

01:28 - 30.772 this layered hearsay affidavit.

01:28 - 34.142 And frankly, in this case, I'd like to point out that,

01:28 - 39.213 again, the trial judge in this case, not only denied the motion

01:28 - 43.418 because of the hearsay, he also denied the motion because there's

01:28 - 46.621 no clear statement in this in this affidavit

01:28 - 49.891 that the father

01:28 - 53.795 provided any outside influence or outside information to the juror.

01:28 - 57.432 It's just not clearly stated and matter.

01:28 - 00.601 I mean, what it says is that the juror

01:29 - 03.805 discussed the case with her father.

01:29 - 07.408 I mean, discuss it or did they pray over it?

01:29 - 08.309 They discussed it.

01:29 - 10.945 Oh. So I mean, the problem isn't that she prayed.

01:29 - 13.881 The problem is that she discussed it with a third party.

01:29 - 14.682 Right.

01:29 - 19.420 If it's true that the hearings for if it's true, that would be a problem.

01:29 - 23.124 But it's not necessarily, the type of misconduct

01:29 - 26.127 that would warrant an a new trial.

01:29 - 27.462 You could be right.

01:29 - 31.332 But, I mean, no one more than the trial judge

01:29 - 32.700 would.

01:29 - 37.739 Would a trial judge to avoid disturbing this verdict

01:29 - 41.175 more than anyone in this room, more than anyone in this room.

01:29 - 45.046 So a trial judge, using his or her discretion in this situation,

01:29 - 49.951 is going to test the adequacy of the allegations

01:29 - 54.789 to determine whether or not this could establish undue influence.

01:29 - 57.625 That's all. That's all the trial judge had to do here.

01:29 - 58.626 Now you're right.

01:29 - 02.830 And hearing maybe there won't be firsthand testimony of any of this.

01:30 - 06.434 I mean, obviously the father would have to testify

01:30 - 10.772 or the juror would have to testify as to the discussions.

01:30 - 12.473 But that's not where we are here.

01:30 - 16.911 All we have here is a trial judge, he said, well, if that happened,

01:30 - 22.116 there's a problem here or could be a problem here, I don't know.

01:30 - 23.418 I mean, the trial judge

01:30 - 27.355 more than anyone would want to avoid obtaining a jury verdict.

01:30 - 30.858 That's why the exercise of a trial judge's discretion

01:30 - 34.362 in this circumstance, gives me a lot of confidence.

01:30 - 36.664 He turned down the request for a hearing.

01:30 - 37.698 Right.

01:30 - 40.501 I'm sorry, Your Honor. Yeah, yeah.

01:30 - 45.006 Judge, the trial judge turned down the request for a hearing.

01:30 - 47.608 He was overturned by the Superior Court. Yes. You're.

01:30 - 52.313 Well, the only thing I would say justice on.

01:30 - 55.950 And in response to your comment and sort of dovetailing with,

01:30 - 00.121 the comment Justice White had made earlier is that that would indeed

01:31 - 05.293 be a new rule that, as far as I can see, and as far as the cases that I've read

01:31 - 09.397 indicate, there has never been a situation in this Commonwealth where the rule is

01:31 - 12.733 you're automatically entitled to the hearing,

01:31 - 16.304 the rule basis for the reversal.

01:31 - 19.307 I mean, the Spirit court's basis

01:31 - 22.944 was not that

01:31 - 26.280 not on the not on the premise that a

01:31 - 29.350 but of course, we all know the reversal was not premised

01:31 - 32.653 on the notion that litigants are automatically entitled

01:31 - 36.123 to a hearing because we, as much as you would rue the day that,

01:31 - 40.862 every person convicted, you know, automatically gets this sort of hearing.

01:31 - 43.364 So there's no disagreement there.

01:31 - 47.368 But the reversal here was, was premised on the analysis

01:31 - 51.906 that the trial court undertook in denying, well, Irish we're debating about here.

01:31 - 52.573 That's what we're hearing.

01:31 - 56.978 You argue about whether this this, you know, this sort of gold,

01:31 - 00.348 gold not, you know, hearsay standard is the rule.

01:32 - 04.318 Well, and also the, the focus on the abuse

01:32 - 07.855 of discretion or lack of abuse of discretion of the trial judge, right.

01:32 - 10.958 Well,

01:32 - 14.061 the Commonwealth's position in this case, Your Honor, is that in point of fact,

01:32 - 16.564 although the Superior Court said

01:32 - 20.401 that, the lower court judge, the trial court judge abuses discretion

01:32 - 24.205 in denying the hearing, they did not, in fact, apply that standard.

01:32 - 28.709 They did not discuss what the judge actually held.

01:32 - 33.447 Yes. Disagree in your argument is they just disagreed with whether or not

01:32 - 35.750 the hearing should have been granted, rather

01:32 - 39.387 than demonstrating how the trial judge abused its discretion.

01:32 - 40.087 Right.

01:32 - 41.822 And then the standard for abuse of discretion

01:32 - 44.525 is the court is well aware is is exceedingly high.

01:32 - 46.827 It's, it's manifestly unreasonable.

01:32 - 51.132 It's, not applying the law or applying the wrong law or showing

01:32 - 54.502 evidence of partiality, bias or prejudice.

01:32 - 57.572 And the standard it is that

01:32 - 01.442 if there is support in the record for what the lower court judge did,

01:33 - 05.846 then the appellate court, including, although I say it with some trepidation,

01:33 - 09.717 this court should not overturn that decision

01:33 - 13.988 in the absence of an abuse of discretion, which which is an error of law

01:33 - 16.991 and an error of lies, that abuse of discretion.

01:33 - 20.161 And I think that's sort of implicitly what the Superior

01:33 - 23.431 Court weighs, where are talking about.

01:33 - 27.802 That there was an error of law,

01:33 - 30.571 but they didn't point out what the error of law was.

01:33 - 35.009 They said there was an abuse of discretion without going through the the

01:33 - 39.113 I this I'm sure it's a somewhat laborious task to explain

01:33 - 42.617 what exactly the trial court held and why it was manifestly unreasonable.

01:33 - 44.285 They didn't do that. I'm sorry.

01:33 - 52.994 I thought counsel was that under under rule 606B2 juror number three, juror

01:33 - 57.632 number three would clearly be competent to testify to that.

01:33 - 01.969 And that in a, in a, you know, a case of this, gravity,

01:34 - 07.675 the court order or to assess whether this in fact occurred just literally,

01:34 - 12.146 you know, like prayer together session with an with an outside person.

01:34 - 15.516 Well, it depends, Your Honor,

01:34 - 18.653 with respect on what prayer means in this context.

01:34 - 21.756 That might mean different things to different people if it matters.

01:34 - 23.224 I think the fact

01:34 - 27.328 yeah, I think the fact that there's another person is the problem with that.

01:34 - 29.330 That may be misconduct,

01:34 - 32.433 but it's not necessarily the sort of misconduct that would entitle

01:34 - 36.671 the defendant to a new trial, unless there was some demonstration

01:34 - 40.074 that the father or some other party

01:34 - 42.777 provided information or some

01:34 - 47.048 external influence on the juror, that that prejudiced the juror.

01:34 - 47.415 Right.

01:34 - 50.184 The prejudice that I think in addition to showing

01:34 - 52.720 that there was external influence, it had to be prejudicial.

01:34 - 55.723 And I think those those are two separate requirements.

01:34 - 59.694 And it's a fine said that Mr.

01:34 - 04.699 Gabor and this is quoting from the affidavit, the Affianced states, Mr.

01:35 - 07.468 Gabor and Mary talked about the case.

01:35 - 09.203 They talked about the case

01:35 - 12.807 during the jury deliberations and that she was having a hard time

01:35 - 17.044 with deciding what to do and that she and Mr.

01:35 - 18.612 Gabor prayed on it.

01:35 - 21.615 And after they prayed, she made her decision.

01:35 - 25.720 It's,

01:35 - 30.458 it's, it seems like the juror

01:35 - 33.527 at least would be competent to testify at a hearing.

01:35 - 37.832 Under 600 6B2.

01:35 - 41.702 Oh, I there's no doubt that if if the defendant's

01:35 - 44.705 entitled to the hearing, which which is the issue here,

01:35 - 48.976 if if he's entitled to that hearing, then obviously the juror

01:35 - 53.013 obviously in my view, that draw would be competent to testify to any communications

01:35 - 56.817 she had with anybody apart from communications in the deliberations,

01:35 - 59.620 not her thought processes during deliberation.

01:35 - 01.255 But this outside is right.

01:36 - 04.325 But the question is, does this do these,

01:36 - 08.729 very tissue thin allegations in this affidavit

01:36 - 13.834 rise to the level that would justify a court

01:36 - 16.937 and calling that juror back into court now

01:36 - 21.709 to render an account of what happened four years ago.

01:36 - 22.676 Now, just a second.

01:36 - 24.011 Why are they tissue thin?

01:36 - 27.148 If true, they're not tissue thin.

01:36 - 30.451 And we don't know if they're true unless we have an evidence right here.

01:36 - 34.421 Well, we I don't think we know what they mean with respect to having

01:36 - 39.160 she spoke with someone else, her father or any third party.

01:36 - 40.795 They prayed on it.

01:36 - 42.930 She can pray on it herself, certainly.

01:36 - 46.167 But she involved a third party

01:36 - 49.303 and discussed the case.

01:36 - 52.139 They prayed on it together and she

01:36 - 55.142 then was able to make her decision

01:36 - 57.211 that that's troubling.

01:36 - 01.248 I understand why it's troubling, but I would submit that again.

01:37 - 05.853 There is a conflation here between what is argue about misconduct.

01:37 - 08.856 And again, this comes in various levels,

01:37 - 11.926 in various degrees versus an outside influence.

01:37 - 15.996 If the information or influence was all from the juror

01:37 - 19.300 to the father, that's misconduct but not prejudicial.

01:37 - 20.701 Is that what you mean?

01:37 - 24.171 It's not external influence, it's her maybe unburdening herself

01:37 - 27.241 to her father about the problem she's encountering in the jury room.

01:37 - 31.846 Yeah, I mean, that that even said that maybe the court ought to.

01:37 - 36.383 I mean, if it's garbage at the court, an experienced

01:37 - 40.221 any judge is going to recognize it's just garbage and it.

01:37 - 43.324 But how you can just say there's no

01:37 - 46.760 evidentiary hearing on an allegation like this in a murder case.

01:37 - 49.230 I mean, you've got strong evidence.

01:37 - 51.799 If you have to try the case again, you try the case again.

01:37 - 56.604 But, I mean, I don't know, I I'd be surprised if many judges

01:37 - 00.374 would deny an evidentiary hearing on a murder conviction

01:38 - 02.443 with this kind of affidavit.

01:38 - 06.180 And and it looks to me, it looks to me like,

01:38 - 10.951 like a a pretty darn serious allegation.

01:38 - 15.856 If I'm somewhat close and Commonwealth's share with me the issue here

01:38 - 21.061 is that Superior Court substitute, I guess its own judgment for that at the trial.

01:38 - 21.962 At trial judge.

01:38 - 26.333 And we're giving the trial judge great discretion and making a determination.

01:38 - 29.403 And then that judge's determination, he felt that that,

01:38 - 33.540 the affidavit that she spoke to her dad and they prayed on it

01:38 - 35.209 had the

01:38 - 39.380 there's no other evidence submitted before that trial judge to prove that

01:38 - 44.051 there was any outward undue influence, that they prayed on it at best.

01:38 - 46.186 Their religious.

01:38 - 47.121 Yes, your Honor.

01:38 - 49.890 So I'm confused.

01:38 - 54.428 What what's your position with regard to the trial judge's decision?

01:38 - 58.198 It seems like this court's trying to support the Superior Court's position.

01:38 - 02.136 When the real focus is on the abuse, the discretion of the trial judge.

01:39 - 05.339 And since that trial judge has great discretion.

01:39 - 07.007 Where did he abuse it?

01:39 - 08.809 Do you believe he did or did not? What?

01:39 - 10.544 How do you argue this?

01:39 - 13.147 Well, your argument is that there is.

01:39 - 16.150 Frankly, if you review what the trial court

01:39 - 19.286 said in its 1925 opinion,

01:39 - 23.924 he very carefully identifies what the applicable legal principles are.

01:39 - 27.861 He, applies those legal principles to this case, both

01:39 - 32.800 in terms of competency and prejudice, and concludes that both are lacking.

01:39 - 36.236 And that's your position, and that's what the law requires,

01:39 - 39.273 that Superior Court substituted its position.

01:39 - 40.774 Right. And that's good.

01:39 - 43.210 It's a good argument.

01:39 - 46.213 The problem is a good argument to the

01:39 - 49.083 very distinguished counsel.

01:39 - 51.452 All right. Is that it?

01:39 - 54.054 If if that's all the court wants to hear.

01:39 - 55.356 Well, thank you. Very well.

01:39 - 56.090 Thank you very much.

01:39 - 58.959 It's it's been an honor to be here at the Commonwealth, Mr.

01:39 - 01.729 wood. You must like it here. You keep coming back.

01:40 - 04.732 I'm going to start sleeping in the coat room.

01:40 - 06.500 Thank you.

01:40 - 09.003 Chief Justice Todd Corey Woods here today for Mr.

01:40 - 10.204 Jeter.

01:40 - 13.040 I think the court is has kind of,

01:40 - 14.241 hit on the issue here.

01:40 - 17.311 There's a lot of questions about what actually happened.

01:40 - 20.647 And that's why I wanted an evidentiary hearing.

01:40 - 23.917 I wanted to be able to judge. Abused

01:40 - 27.621 his discretion based upon the evidence you submitted and the arguments.

01:40 - 28.655 Make sure.

01:40 - 30.157 So that's what we're here for.

01:40 - 33.627 Not what we believe to be what we would do if we were trial judges.

01:40 - 36.930 But tell us what that trial judge did that was abusive

01:40 - 39.466 and not what the Superior Court would do. Right?

01:40 - 43.103 What he's done right, what the trial judge did and did, he abuses discretion.

01:40 - 47.841 So the trial court determined that because, this was hearsay and it didn't,

01:40 - 49.877 want to raise

01:40 - 52.946 the microphone, because this was hearsay and it

01:40 - 56.717 because it did not fulsomely establish, exactly what was said.

01:40 - 58.719 And prejudice,

01:40 - 00.721 that we're not going to give a hearing

01:41 - 03.724 maybe in 1999.

01:41 - 07.761 That is a reasonable statement of the law.

01:41 - 11.465 The problem is that we've already been through this.

01:41 - 13.500 In Pratt.

01:41 - 16.470 There was a letter, which is a hearsay statement,

01:41 - 19.473 but that was a detail that's easily distinguishable.

01:41 - 23.444 The content of the Pratt letter was very fact specific.

01:41 - 26.647 This was just said she had a conversation with her dad

01:41 - 30.751 because she was troubled by her decision, which is a weighty one, someone's life.

01:41 - 32.719 And they prayed on it.

01:41 - 33.854 But that's so confused.

01:41 - 36.723 It's where this biased prejudice is coming from. So.

01:41 - 40.561 So let me just walk through what exactly was wasn't Pratt.

01:41 - 43.630 So the, we have a,

01:41 - 48.168 a hearsay letter purportedly from a juror.

01:41 - 52.272 We have a statement in there that other jurors said to her.

01:41 - 54.041 That's another hearsay statement.

01:41 - 57.644 Do we take into consideration that the hearsay from the father

01:41 - 00.814 is that he didn't trust the legal system, so he did want to supply one?

01:42 - 02.883 Well, that's that's that's not exactly right.

01:42 - 04.718 Justice.

01:42 - 06.487 I'll flip this around.

01:42 - 09.490 In this case, we have,

01:42 - 13.660 a sworn statement, which we didn't have in Pratt,

01:42 - 16.296 from an attorney, which

01:42 - 19.233 I think has a little more credibility than losing sides attorney.

01:42 - 21.468 Right? That's correct. Okay, so we think that.

01:42 - 23.871 But we had an officer of the court, an officer of the court

01:42 - 27.074 with ethical obligations and and some skin in the game saying that,

01:42 - 29.243 it's true.

01:42 - 31.411 We take in the fact that the losing attorney

01:42 - 35.115 decided to submit something about somebody who doesn't trust the system.

01:42 - 39.786 I suspect that Attorney Cobb would much rather have of, had Mr.

01:42 - 43.223 Smith, sign out an affidavit if he had been willing to do so.

01:42 - 47.828 So, we have a,

01:42 - 51.632 in this case, we have a sworn affidavit

01:42 - 54.635 from counsel that father in law

01:42 - 00.240 was told by father that father had this conversation with the juror.

01:43 - 03.410 It's three layers of hearsay. I get it,

01:43 - 07.247 we have the adjournments, and I want to be very specific.

01:43 - 12.753 The Cobb affidavit at paragraph 11 says we talked about how she was a juror

01:43 - 16.023 and what was happening during the trial.

01:43 - 18.559 We talked about, paragraph 12.

01:43 - 21.695 We talked about the case during the jury deliberations

01:43 - 24.731 and that she was having a hard time with deciding

01:43 - 27.768 what to do, and that she and father prayed on it.

01:43 - 30.604 And after they prayed, she made her decision.

01:43 - 33.607 So it is true that that is not,

01:43 - 38.445 a fulsome explanation of what this conversation entailed.

01:43 - 40.581 Isn't that what's before the court?

01:43 - 44.218 The judge has to decide based upon what you submitted,

01:43 - 46.019 whether

01:43 - 49.022 that's sufficient for the standard of prejudice.

01:43 - 52.459 In another context, I might agree with you, honor,

01:43 - 55.596 but when you look at the Pratt case, here is the language.

01:43 - 58.565 So first of all,

01:43 - 00.567 the Superior Court and Judge Del Sol

01:44 - 05.739 and Judge Cline, they say, okay, we get it, we get it.

01:44 - 07.975 It's not clear.

01:44 - 10.444 And we're going to have a hearing about it.

01:44 - 13.914 And Judge Kavanaugh dissents and says, well, yeah, it's hearsay.

01:44 - 16.516 And it's it's it's not fulsome enough.

01:44 - 18.552 Well, he lost.

01:44 - 21.722 And then before this court back in 2001,

01:44 - 24.057 just a sailor puts kind of a fine point on it.

01:44 - 26.293 He says, we acknowledge appellant's arguments.

01:44 - 28.428 This is, from the Pratt case.

01:44 - 31.431 We acknowledge appellant's argument that juror tans affidavit,

01:44 - 36.703 lacked specificity in material respects and, if believed, would not

01:44 - 39.706 establish the quantum of prejudice necessary to disturb the verdict.

01:44 - 42.242 So it's the same thing. It's hearsay.

01:44 - 43.277 It doesn't.

01:44 - 46.780 All it it said was we talked to somebody about the standard of care

01:44 - 49.616 and that was, oh, that's not true. This is a murder case.

01:44 - 51.251 I apologize with all due respect.

01:44 - 55.122 The Pratt letter, it indicates that despite a medical malpractice

01:44 - 57.224 and the testimony of a Cat scan,

01:44 - 00.027 that they went and spoke to their own professionals.

01:45 - 03.630 They sought out conflicting doctor testimony.

01:45 - 07.301 At no time did they say to their dad, I'm struggling with the life case.

01:45 - 09.503 And he says, let's pray on it. But.

01:45 - 11.305 But we don't know whether it's conflicting.

01:45 - 13.440 And that's that's stated in the case.

01:45 - 15.342 We don't know whose ox is even more.

01:45 - 17.944 It may have been helpful to the party who won.

01:45 - 18.812 It's a cipher.

01:45 - 23.250 But isn't that the burden of the attorney who's bringing this allegation

01:45 - 25.452 to provide the court with the sufficient,

01:45 - 29.056 competent evidence needed for him to determine whether it's bias?

01:45 - 31.658 Not afterwards? No. And here's why.

01:45 - 35.228 Ordinarily, if we're doing a motion to suppress,

01:45 - 39.032 if we're doing whatever, whatever a motion, eliminate, yes, 100%.

01:45 - 43.103 But in Pratt, Justice Saylor goes on

01:45 - 46.940 at some length for four justice hour, that means three paragraphs.

01:45 - 49.943 And so instead of one, he says,

01:45 - 53.146 this is a different context, and this is what I want to get to next.

01:45 - 55.382 Here's why.

01:45 - 57.718 We don't want attorneys

01:45 - 00.721 or other investigators going out to a juror

01:46 - 05.826 or going out to the jurors dad and saying, hey, we need to we need to put

01:46 - 09.863 competent evidence in front of the, the court to, to to show, hey,

01:46 - 13.633 we need a hearing here because we, the court has said

01:46 - 14.434 there's a, there's a case

01:46 - 17.437 with an exclamation point in it that says, don't do this anymore.

01:46 - 21.475 And, and the so we don't want them to do it.

01:46 - 25.112 And number two, one of the reasons we don't want them to do it

01:46 - 29.516 is because we want to give the trial judge control over the situation.

01:46 - 33.420 We want to give the trial judge the ability to police the boundary

01:46 - 38.191 between competent testimony and incompetent testimony.

01:46 - 40.127 Because if you send that investigator out there,

01:46 - 42.028 he's going to go to the juror

01:46 - 45.332 and they're going to talk all about how the case got decided inside the jury room.

01:46 - 48.402 Your position is the trial

01:46 - 53.273 judge was either incompetent or abused its discretion

01:46 - 57.244 based upon the facts and the evidence before him at that trial.

01:46 - 58.145 At that motion.

01:46 - 01.148 So it can go either way.

01:47 - 03.784 I'm trying to find which way to go it can be.

01:47 - 05.719 Either one is just as Donoghue alluded to.

01:47 - 08.188 This is an error of law because under Pratt

01:47 - 11.191 this is sufficient reason as a matter of law,

01:47 - 15.061 to to the Pratt standard of the specificity

01:47 - 17.597 and the factual basis that the Pratt letter.

01:47 - 20.000 But you can easily distinguish what's written in Pratt

01:47 - 21.835 and what's written in this affidavit.

01:47 - 25.539 I think they're factually different, but I think they're factually identical

01:47 - 29.075 in material respects, because again, in Pratt, we just know that

01:47 - 32.679 they talked about the standard of care and specifics about the standard of care.

01:47 - 36.183 But in Pratt, we don't even know who it helped.

01:47 - 38.218 So let me quote from it.

01:47 - 39.386 Beginning during the trial

01:47 - 42.522 and continuing throughout deliberations, some of the jurors reported

01:47 - 45.525 that they had spoken to various people, such as relatives and friends

01:47 - 48.695 involved in the medical profession and their personal physicians,

01:47 - 51.498 to get their opinion regarding whether a cat scan

01:47 - 55.502 could have been performed earlier, whether meningitis test and a Cat scan

01:47 - 57.070 should have been performed at the same time,

01:47 - 00.073 and whether this was standard care for 1989.

01:48 - 03.910 Now you're going to say an individual who has trouble making a decision

01:48 - 07.280 with the life or death case speaks to dad and says, I'm troubled.

01:48 - 10.750 And he says, let's pray is analogous to this.

01:48 - 14.521 I'm just trying to understand the jury, the weighty issue here.

01:48 - 17.991 So it's it's not just that he says, let's pray.

01:48 - 21.061 It's all those other allegations about we're talking about this.

01:48 - 25.165 So what does that conversation entail and how much how does

01:48 - 28.969 how does counsel have the opportunity to develop that?

01:48 - 31.238 We don't we're not supposed to do that.

01:48 - 33.840 You could have brought the father if we're not supposed to do that.

01:48 - 34.741 And we can't do it

01:48 - 37.911 until we've got an evidentiary hearing, which was what I was arguing

01:48 - 39.446 when I was asking for the evidentiary hearing.

01:48 - 43.450 I said, judge, look, I can't send an investigator out there.

01:48 - 45.652 Can you file a petition for extraordinary relief?

01:48 - 48.655 This court has said I cannot do it.

01:48 - 51.858 I can't subpoena the guy who won't sign an affidavit.

01:48 - 52.726 Oh, I got that.

01:48 - 55.829 I can't I can't get the guy in the court without a subpoena.

01:48 - 57.163 You could have asked him.

01:48 - 57.931 He may have come.

01:48 - 01.434 He didn't trust the court system to sign an affidavit.

01:49 - 05.005 Sure, but that doesn't mean he can't be invited to testify.

01:49 - 07.007 If we had gotten a hearing, I would have been.

01:49 - 08.608 I would have subpoenaed him.

01:49 - 09.843 I would have subpoenaed father.

01:49 - 11.545 I would have subpoena juror.

01:49 - 16.249 The trial judge felt that the affidavit was not tantamount

01:49 - 20.620 to sufficient competent evidence such that that mandate.

01:49 - 22.289 And let me just push back.

01:49 - 25.358 I understand how is that an abuse of discretion

01:49 - 29.596 for this court to get down, to say that judge made the wrong decision

01:49 - 34.200 based upon that moment when he compared the Pratt affidavit with this affidavit?

01:49 - 37.337 And just so you understand, that's a very hard question for us.

01:49 - 41.308 How did how did how can you demonstrate

01:49 - 44.311 correct, that that was an abuse of discretion.

01:49 - 45.211 That's the issue.

01:49 - 48.415 So I, I understand that the Pratt affidavit

01:49 - 51.751 is more factually developed. Right.

01:49 - 56.423 It says more facts about, what the conversation was.

01:49 - 00.260 But here's the basis of decision from from Chief Justice Saylor.

01:50 - 02.295 And he's talking about

01:50 - 06.199 how the affidavit lacks specificity in material respects.

01:50 - 09.069 He says, for example,

01:50 - 11.838 Juror Chen's letter is not specific in terms

01:50 - 16.209 of whether the extra record information allegedly communicated to jurors

01:50 - 19.946 was favorable or unfavorable to a police position as plaintiffs,

01:50 - 23.283 or whether it was received by majority or minority jurors.

01:50 - 27.120 Although the tenor certainly raises the implication

01:50 - 31.524 that the unfavorable information was received by majority jurors.

01:50 - 38.732 So. When there is sufficient reason,

01:50 - 41.601 this is, it's almost like voir dire, right?

01:50 - 44.638 When you have a it's that the couple of white deer cases that the court

01:50 - 49.409 had a couple of terms ago is probably considering now, when there's sufficient

01:50 - 53.847 reason to raise the judicial question, what's what's in here?

01:50 - 57.684 And what is the,

01:50 - 59.786 content of these conversations

01:50 - 03.790 until you have that hearing, there's no way to evaluate prejudice.

01:51 - 06.092 You just can't do it.

01:51 - 08.161 And if, if, if this case,

01:51 - 10.864 the principles that

01:51 - 14.334 the trial judge used were it's hearsay, triple hearsay.

01:51 - 17.570 True. And that it's not competent evidence.

01:51 - 18.138 True.

01:51 - 21.875 And Pratt and it doesn't identify objective

01:51 - 25.178 it doesn't identify exactly what the conversations were.

01:51 - 25.545 True.

01:51 - 28.948 And Pratt look judge Del Sol thought about it.

01:51 - 30.884 They came down.

01:51 - 33.887 They those those three things don't matter.

01:51 - 36.389 Justice Saylor and this court thought about it,

01:51 - 39.025 said, well, that's that doesn't matter

01:51 - 40.860 because we don't want them developing it further.

01:51 - 42.962 We want the court developing that.

01:51 - 45.965 And look, here's here's another thing I want to just mention.

01:51 - 47.634 Sure.

01:51 - 50.704 The limit that's not the limit of the trial court's

01:51 - 53.707 losses in this case, that it was hearsay and hearsay.

01:51 - 57.444 The trial court looked at the affidavit and said,

01:51 - 01.047 and I'm quoting from his opinion, there is no allegation

01:52 - 04.250 that juror, through his father told juror three anything.

01:52 - 07.454 Therefore, there

01:52 - 12.459 is no allegation in Attorney Cobb's affidavit that juror three father provided

01:52 - 17.330 any information to the jury that the jury did not have before that at trial.

01:52 - 21.835 And that is markedly different than the allegation.

01:52 - 24.838 And Pratt, where there was

01:52 - 28.341 information sufficient

01:52 - 31.911 in that situation where the juror said

01:52 - 37.484 there was testimony that was brought and there was discussions from other jurors

01:52 - 41.421 about outside that, the professional was not involved in this case.

01:52 - 45.458 And what set out in court was, the casting of the subject.

01:52 - 46.659 Sure.

01:52 - 50.563 And if that were true, I would understand that that's a factual distinction,

01:52 - 51.998 but it's not true.

01:52 - 55.001 It's true or not, but it's your burden of proof.

01:52 - 56.236 Correct.

01:52 - 59.239 To get the evidence evidentiary here.

01:53 - 03.877 And if it if it's not true,

01:53 - 07.680 then the trial does clear if it's true what the trial is.

01:53 - 11.384 Your role is clear is clearly it's not an abuse of discretion.

01:53 - 14.554 And if it's not true what he wrote based upon

01:53 - 18.091 the language of your affidavit, why did you say in the affidavit?

01:53 - 23.863 It's my information and belief that juror number three father told juror

01:53 - 28.268 number three something that she impacted with the jury at the state.

01:53 - 31.437 And so so first of all, I think I think the fair import

01:53 - 34.440 of the affidavit is they talked about this.

01:53 - 35.875 They they talked about it.

01:53 - 38.311 When you look at the affidavit, there's a conversation

01:53 - 40.814 about what's going on in the case, what to do.

01:53 - 43.683 And and she's having a hard time.

01:53 - 45.151 It's a conversation.

01:53 - 48.121 Let me stop you there because I'm listening to everybody's.

01:53 - 50.023 Well made points here.

01:53 - 53.459 But as somebody who actually presided over 40 or 50 jury trials a year

01:53 - 57.497 and then sat on a couple hundred hours on the Superior Court,

01:53 - 59.432 if I'm listening

01:53 - 02.402 to what your argument is, you seem to be arguing that every time

01:54 - 05.205 these kind of amorphous allegations are made,

01:54 - 06.806 we have to have an evidentiary hearing.

01:54 - 10.710 And while it's I think everybody up here would say, well,

01:54 - 14.280 why don't we just give it a hearing and flesh this particular issue out?

01:54 - 17.550 The issue I'm concerned about is future cases

01:54 - 20.820 where you seem to be suggesting that everybody gets an evidentiary hearing

01:54 - 24.757 because of something that was said to somebody's father in law,

01:54 - 27.126 which may or may not have impacted the jury.

01:54 - 30.496 I think what we're what we're lacking here and what Justice Mundy and Justice

01:54 - 33.666 talking to you really hammering at is the lack of specificity.

01:54 - 35.335 You just said it yourself.

01:54 - 38.738 There's it implies that there was discussion, but

01:54 - 40.907 you don't provide any detail.

01:54 - 43.443 You don't provide any test. There was a discussion. Right?

01:54 - 45.612 It says she discussed it with her father.

01:54 - 47.947 There's no detail about what they discussed.

01:54 - 50.416 I mean, other than we prayed on it.

01:54 - 51.951 And I agree with that.

01:54 - 55.822 I understand the court's I'm looking for a bright line here and you're giving me

01:54 - 58.124 we should just have a hearing and figure it out.

01:54 - 01.361 Well, I'm going to I'm going to give you, Pratt,

01:55 - 03.496 and I'm going to give you the reason

01:55 - 05.365 why in a second, but I'm going to give you a Pratt.

01:55 - 07.200 And it says exactly what you just said.

01:55 - 10.203 There's no specificity here.

01:55 - 13.339 Because the overall question is prejudice, right?

01:55 - 15.241 Is this objectively.

01:55 - 15.808 I'm sorry?

01:55 - 17.210 You asking us to overrule Pratt?

01:55 - 20.213 No, no, no, they are,

01:55 - 23.583 because Pratt says in in that passage,

01:55 - 27.520 I keep going back to the overall question is prejudice right.

01:55 - 31.157 We acknowledge that the the affidavit

01:55 - 34.560 lacks, specificity in material respects.

01:55 - 38.431 And even if belief would not establish the quantum of prejudice necessary.

01:55 - 39.632 So in Pratt,

01:55 - 43.603 this court said, yeah, the affidavit is not specific enough to get us there.

01:55 - 49.475 But you have a duty to investigate because because in the following paragraph,

01:55 - 52.645 Justice Taylor says attorneys,

01:55 - 55.481 even though it's your burden, don't go investigate.

01:55 - 57.617 We don't want you to do that.

01:55 - 01.020 So I can't I can't go and write upon information and belief.

01:56 - 04.357 There was a a conversation.

01:56 - 07.160 The conversation went both ways, because I don't know that.

01:56 - 08.127 And I shouldn't know that.

01:56 - 10.163 I'm not allowed to know that.

01:56 - 12.665 So it's it's I understand this is this is a

01:56 - 15.234 this is a slightly different pleading standard than it is for

01:56 - 18.838 just about every other motion there is in the Commonwealth of Pennsylvania.

01:56 - 20.840 Let me ask you this, Mr.

01:56 - 26.312 Woods, under Carter is the standard for establishing prejudice,

01:56 - 30.950 going through the analysis of Pratt, that you're

01:56 - 34.721 that the juror took this information back to the jury,

01:56 - 38.224 or simply that this juror was somehow prejudiced.

01:56 - 41.527 So that's interesting because Pratt, the civil case.

01:56 - 43.196 Right. And so there's minority and majority

01:56 - 46.199 jurors, and we talk about it in Pratt here.

01:56 - 48.668 One one's enough.

01:56 - 51.270 So it doesn't matter if it goes back to the jurors counts.

01:56 - 53.773 So let me let me try to put a fine point on this.

01:56 - 59.912 And I'm starting from the proposition that jurors are instructed not to discuss

01:57 - 05.685 what's happening in the case with anyone outside of the jurors.

01:57 - 06.719 Correct. Okay.

01:57 - 09.522 So that's sort of the overriding principle here.

01:57 - 09.756 Correct.

01:57 - 12.759 And so we have an allegation here

01:57 - 16.062 that this juror discussed the case

01:57 - 21.367 with someone during deliberations who was not a juror.

01:57 - 24.871 Is that sufficient on its face

01:57 - 30.777 to establish the, ability to have a hearing

01:57 - 34.981 to determine whether or not there was indeed outside influence?

01:57 - 36.416 It may be? The father said. Nothing

01:57 - 40.820 I also discussed would suggest otherwise.

01:57 - 45.992 But is that enough to allege that a juror

01:57 - 51.230 broke the rule that you are not to discuss what's happening

01:57 - 55.868 during this trial with anyone outside of the jury?

01:57 - 58.538 And did that misconduct cause prejudice?

01:57 - 02.341 Because even if she committed that misconduct, it doesn't matter if

01:58 - 05.711 if she's not prejudiced and when do you determine prejudice?

01:58 - 06.045 Yeah.

01:58 - 09.082 So my reading of for all those questions it one great.

01:58 - 11.250 We'll just walk through the post-trial phase.

01:58 - 14.253 My my reading of of Pratt is this

01:58 - 17.590 when there is sufficient evidence to raise

01:58 - 21.494 a judicial question, the trial court has a duty to investigate.

01:58 - 22.862 Maybe that's a hearing.

01:58 - 24.097 And look, just as Saylor

01:58 - 26.265 says, the procedure for doing this is of the trial court.

01:58 - 29.268 So maybe the judge can just do an in-camera inspection.

01:58 - 32.605 Maybe there's all sorts of tools that the judge can use, to, to,

01:58 - 35.708 to inquire here, but the sufficient evidence

01:58 - 40.680 of potential, misconduct that is potentially prejudicial

01:58 - 42.415 creates a

01:58 - 45.451 duty to investigate on the on the trial court's,

01:58 - 47.954 part.

01:58 - 50.790 And once that investigation goes on,

01:58 - 54.026 that's that investigation is subject to abuse of discretion.

01:58 - 58.030 Once you've had your factual development, however you get there,

01:58 - 00.633 that's when you apply. Carter.

01:59 - 03.536 That's when you say, oh,

01:59 - 07.306 now that this, this allegation was raised

01:59 - 11.077 and we've looked into it,

01:59 - 15.381 is this likely to object objectively likely to bias somebody?

01:59 - 20.319 And look, I said at the sentence motion hearing, maybe we have the hearing.

01:59 - 24.323 And, you know, father comes in and says,

01:59 - 27.059 well, we just never had that conversation.

01:59 - 30.029 This is just some guy on the street saying it's completely false.

01:59 - 31.564 And then I call the other guy and he says, no.

01:59 - 34.367 He told me the trial judge makes a credibility determination.

01:59 - 35.034 And then I'm,

01:59 - 38.070 well, wherever that goes, I go.

01:59 - 41.641 Mr. woods, what you're saying is, if we were to follow your recommendation,

01:59 - 45.244 as articulated by Justice Stanley, you, that any time

01:59 - 48.181 an individual sitting in the jury by hypothetically,

01:59 - 51.184 a defendant family member sits in, watches, the trial

01:59 - 55.288 verdict, comes back guilty, we're now permitting someone to make an allegation.

01:59 - 56.656 Oh, I watch juror number

01:59 - 00.393 four and five talk, or I heard them say, or I seen her at lunch.

02:00 - 04.263 And that now gives us carte blanche to have hold an evidentiary

02:00 - 09.268 hearing over each and every allegation based upon hearsay.

02:00 - 12.672 No, I'm saying when,

02:00 - 16.242 there is sufficient evidence

02:00 - 19.245 that there is external influence

02:00 - 22.715 sufficient, I mean, legally sufficient evidence sharing with us

02:00 - 26.552 that from the affidavit that particular I have the affidavit.

02:00 - 29.522 Let me see which of Berman it's paragraphs 11 and 12.

02:00 - 30.690 Are you

02:00 - 33.859 are you saying that that is sufficient, that I had the conversation

02:00 - 38.331 and that we prayed on it is sufficient evidence of undue influence or prejudice?

02:00 - 41.567 I would I would go broader than that.

02:00 - 44.303 I would say that we're

02:00 - 46.572 let me just get the language right.

02:00 - 48.608 We talked about how she was a juror.

02:00 - 50.643 Maybe that's fine.

02:00 - 52.144 What was happening during the trial?

02:00 - 53.980 We talked about what was happening during the trial.

02:00 - 54.580 Is that a crime?

02:00 - 58.818 Since these are open criminal or prejudicial or influential,

02:00 - 01.921 when every criminal courtroom in the Commonwealth is open to the public,

02:01 - 02.822 it's not a crime.

02:01 - 05.958 But if if we went downstairs and someone was talking to a jury

02:01 - 07.860 about a juror, about what was happening at the trial,

02:01 - 11.330 I think the trial court jumps in and says, hey, that's my question.

02:01 - 14.333 What would have happened if this came up during trial?

02:01 - 15.735 Oh, exactly.

02:01 - 19.872 What happens if this if this if this allegation was put forth

02:01 - 24.877 before the jury verdict was rendered, brought to the trial judge's attention

02:01 - 30.883 that you're a we're seen in the hallway talking with her father about the case.

02:01 - 33.519 Right. I think what happened colloquy them.

02:01 - 35.821 Well, you have a couple things you'd have.

02:01 - 38.891 You'd have further correct you to do a court.

02:01 - 40.960 You would colloquy the witness. You'd bring the witness in.

02:01 - 42.962 You would ask about who they were speaking to,

02:01 - 44.997 what the content of the speaking, whether or not

02:01 - 48.000 they received any information that might adversely affect their impact.

02:01 - 49.502 And then you would ask them whether or not

02:01 - 52.271 they imparted that information to other jurors. Right.

02:01 - 55.741 And then you would make a credibility determination and remove them

02:01 - 00.346 and replace them with the alternative that that's different, completely different.

02:02 - 05.951 This is that, that the denial in such circumstances

02:02 - 11.724 of any inquiry or hearing on that alleged contact would be error.

02:02 - 13.859 Right. And and you can call it an error of law.

02:02 - 17.029 If you use a sufficiently construct, you can call it manifestly unreasonable

02:02 - 18.998 because it's it's clear

02:02 - 22.068 that someone has an obligation to investigate under these circumstances.

02:02 - 26.172 But at the end of the day, there's a judicial question about whether

02:02 - 31.110 there's a 13th juror in this case, and I just don't know any,

02:02 - 35.881 I just don't know any basis that we can say,

02:02 - 40.319 it's okay to not not inquire about that right argument.

02:02 - 45.524 And just to be clear, you're not asking for us to reverse a murder conviction.

02:02 - 47.860 You're asking for an evidentiary hearing.

02:02 - 48.194 Right?

02:02 - 51.197 And look, I that's what I thought would happen.

02:02 - 53.466 I thought we would get a hearing.

02:02 - 56.535 And there's one more point that I want to just get out there.

02:02 - 00.706 Part of this is you have the hearing.

02:03 - 06.178 Now you have it when it happens so that you, you you get the evidence right away.

02:03 - 09.715 So this was four years ago.

02:03 - 11.817 Now, the witnesses are not the memories.

02:03 - 12.451 Not so good.

02:03 - 14.487 Who knows who's talking in the community?

02:03 - 17.490 We have in this case,

02:03 - 19.125 and this this is not, Mr.

02:03 - 19.859 Bible or Mr..

02:03 - 22.862 Thank you, Mr.

02:03 - 23.462 Dryer.

02:03 - 26.298 Their mother in law is no longer the father in law.

02:03 - 26.799 Right.

02:03 - 30.503 But we had the predecessor district attorney

02:03 - 33.572 go out and interview my dad,

02:03 - 37.676 unbeknownst to me, while they're saying, hey, you can't go do this in court.

02:03 - 39.845 So so that's going.

02:03 - 41.580 So now, are we calling the former D.A.

02:03 - 43.282 to talk about what dad said?

02:03 - 44.583 You know, there's stuff there.

02:03 - 48.053 We have one of the the potential witnesses from the other claim,

02:03 - 51.557 somehow got the the trial judges,

02:03 - 54.727 cellular phone number and is sending him text messages that he's disclosed.

02:03 - 56.762 So. And I'm not saying this is not.

02:03 - 00.433 I'm not this is not about that, but this is about, like,

02:04 - 04.470 it's it's important to deal with this right away, just like you would

02:04 - 06.806 if they were in the hall. Because

02:04 - 10.876 that's when the evidence is most reliable and it can be managed

02:04 - 13.212 and we can not have conversations about,

02:04 - 16.615 oh, well, what did your x and x or y say in the jury room?

02:04 - 19.385 We can have conversations. Well, what did you say to your dad?

02:04 - 20.619 What did your dad say to you?

02:04 - 22.755 And we're done.

02:04 - 24.123 That's what this is about.

02:04 - 27.159 And it's it's it's about protecting the court.

02:04 - 30.329 It's it's it's interesting. We can, we can.

02:04 - 32.765 I think there's an attitude that that what I'm doing here

02:04 - 35.768 is I'm saying, hey, impeach this jury verdict.

02:04 - 37.870 We're we're trying to mess things up here.

02:04 - 40.873 But what I'm saying is we need to.

02:04 - 43.876 The trial court had an obligation to investigate here

02:04 - 46.412 to protect the jury verdict.

02:04 - 49.448 The trial court's investigation here would police that boundary

02:04 - 51.250 and manage this case.

02:04 - 54.954 By not doing that, we're four years down the road.

02:04 - 56.956 Who knows what this hearing is going to look like now?

02:04 - 59.124 All right. It's really an interesting case.

02:04 - 02.294 It was well argued by both sides and we appreciate it.

02:05 - 02.995 Thank you both.

02:05 - 03.295 Thank you.

02:05 - 07.700 I our next case is Mary Joan Jeter versus

02:05 - 11.537 Benjamin Mangus doing business as mangus inspectors.

02:05 - 14.773 And this is a very interesting case about home

02:05 - 18.177 inspections which any home buyer is familiar with.

02:05 - 20.746 You go, you're about to buy a home.

02:05 - 23.082 You pay a few hundred dollars for a home.

02:05 - 24.917 Inspector to look at the home.

02:05 - 26.986 The inspector gives you a report.

02:05 - 30.289 And based on that report, you may or may not buy the home.

02:05 - 35.427 And so the question is, what if there was a mistake in the report

02:05 - 38.430 or something, was not included in the report

02:05 - 41.867 that then causes you to have to make lots of repairs down the road.

02:05 - 45.204 May you sue the home inspector,

02:05 - 47.139 for giving

02:05 - 50.309 you, inaccurate information in the report.

02:05 - 54.046 So this is a case where the inspector,

02:05 - 57.583 went ahead and did a home inspection.

02:05 - 00.286 Doctor get or buys the home

02:06 - 02.821 and about a year and a half later

02:06 - 07.893 experiences a bad winter and finds out, according to her,

02:06 - 11.397 that there were problems with the house, that the inspection did not detect.

02:06 - 15.000 It involved the whole heating system and foundational work,

02:06 - 17.202 and it's going to cost her a lot of money.

02:06 - 20.205 So she wants to sue.

02:06 - 24.510 Mangus, inspections for the faulty report.

02:06 - 26.946 And here's where it gets interesting.

02:06 - 31.784 There is actually a law, section 7512 of the home inspection law,

02:06 - 37.323 and it provides that an individual has one year to sue the inspector.

02:06 - 41.627 And here's what we have two terms that are really important to understand,

02:06 - 44.663 because this is what the case is about.

02:06 - 46.532 One is the statute of limitations.

02:06 - 51.470 So typically if you're in a car accident you have two years to sue somebody.

02:06 - 56.342 If there's a medical malpractice issue, you may have two years to sue somebody.

02:06 - 59.511 But sometimes you don't discover that there's

02:06 - 02.815 a problem for a year and a half or two years.

02:07 - 07.019 And so the law basically has what's called tolling,

02:07 - 10.623 which means that even if you have a statute of limitations for one year

02:07 - 14.226 or two years, if you're if you couldn't discover the problem,

02:07 - 18.430 then you can sue two years from the time of the discovery.

02:07 - 23.802 So that's a statute of limitations, which typically has this discovery rule

02:07 - 27.673 that may extend the statute beyond the two year period.

02:07 - 31.243 There's another concept that's called the statute of repose.

02:07 - 36.682 And the statutory repose is basically a firm, absolute deadline that no matter

02:07 - 41.353 what the circumstance, you simply cannot sue beyond that time frame.

02:07 - 45.290 And so there are various situations in Pennsylvania

02:07 - 48.861 where there will be a statutory repose that will say, I don't care what happens

02:07 - 53.399 after six years, you cannot sue for this particular type of claim.

02:07 - 57.636 So the question is that this homeowner now has bought the house

02:07 - 01.440 and has discovered that there's a problem

02:08 - 05.010 and brings the lawsuit within one year of the discovery.

02:08 - 10.382 And the inspector says that inspection, that limitation,

02:08 - 14.119 the one year limitation is a statute of repose.

02:08 - 16.722 It is not a statute of limitations.

02:08 - 20.325 And by being a statue of repose, it doesn't really matter

02:08 - 24.129 if she discovered something later, she had one year to sue me on the policy.

02:08 - 28.233 She missed the one year deadline and the case must be thrown out.

02:08 - 33.238 So in interpreting this is a statutory interpretation.

02:08 - 35.074 How do you assess this?

02:08 - 38.243 The Court of Common Pleas in Crawford County said,

02:08 - 41.513 that look at the particular law

02:08 - 44.516 is actually titled statute of limitations.

02:08 - 47.653 So if it's titled statute of limitations, we're going to look

02:08 - 50.689 and we conclude that the discovery rule does apply.

02:08 - 53.859 And she can bring this lawsuit.

02:08 - 56.929 The case goes to the Pennsylvania Superior Court on appeal.

02:08 - 01.233 And the base in the Pennsylvania Superior Court reverses that decision.

02:09 - 04.670 And they cite a case that the same Pennsylvania Superior Court

02:09 - 09.908 had decided about seven years ago, called Tippett versus Eagle Home Inspections,

02:09 - 15.514 where they concluded that this provision was a statute of repose

02:09 - 19.051 that is an absolute firm one year period.

02:09 - 20.285 And that's all you have.

02:09 - 24.323 And the argument from a policy point of view might be that you're

02:09 - 25.591 you're really not paying.

02:09 - 27.993 The homeowner's not paying the inspector that much.

02:09 - 31.530 And the specter shouldn't be on the hook for a few hour inspection.

02:09 - 33.332 And this is a service they're providing,

02:09 - 36.301 but they can't be on the hook indefinitely.

02:09 - 40.472 Well, from the homeowner's point of view, there's a policy concern that if there's

02:09 - 43.509 some something that's been missed here,

02:09 - 46.678 then she should have the right to bring that lawsuit.

02:09 - 49.782 And so the court is now looking at this question of is it

02:09 - 52.985 a stature of repose or a statute of limitations?

02:09 - 56.221 And this also gets into one of the really fascinating questions

02:09 - 00.025 that we sometimes see in application of the law versus

02:10 - 03.729 what you might hear in the media where people talk about,

02:10 - 06.532 you know, legislative intent.

02:10 - 11.470 So we have an interesting situation where the legislature actually went,

02:10 - 15.574 filed an amendment, or some legislators found an amendment

02:10 - 19.511 to amend this law to make it clear that it was not statute of limitation,

02:10 - 23.215 that it was a statue repose, but that law did not pass.

02:10 - 28.053 So one side, the inspector is arguing, see, the legislature

02:10 - 31.790 was trying to reinforce the fact that there was a statute of repose.

02:10 - 35.360 And the other side, the homeowner is saying, see, it never passed.

02:10 - 39.364 So and therefore obviously must be a statute of limitation.

02:10 - 44.736 So the court is now going to hear these arguments about this particular section.

02:10 - 47.506 Is it a statute of limitations

02:10 - 51.243 that would allow the lawsuit to proceed, or is it the statute of repose?

02:10 - 53.545 This involves statutory construction.

02:10 - 55.981 And let's hear how the parties argue this case.

02:10 - 00.085 Thank you, Madam Chief Justice, and may it please the court.

02:11 - 03.388 My name is Phillip Seaver Hall, and on behalf of the Knox Law Firm,

02:11 - 07.659 I have the great privilege today of representing Doctor Mary Joan Dorr.

02:11 - 12.531 This court should reverse the Superior Court remand of the case

02:11 - 17.102 and hold that section 7512 of Pennsylvania's Home Inspection

02:11 - 21.640 Law is a statute of limitations, not a statute of repose.

02:11 - 25.510 The differences between statutes of limitation

02:11 - 28.113 and statutes of repose have been well-settled

02:11 - 31.083 in this Commonwealth for nearly two centuries,

02:11 - 35.554 and against that robust legal backdrop, the General Assembly made

02:11 - 38.757 a deliberate choice to label section

02:11 - 41.760 7512, a statute of limitations

02:11 - 46.899 and put the key textual hallmarks of such a statute into the laws.

02:11 - 48.333 Operative language.

02:11 - 52.471 You say it's been clearly established for, you know,

02:11 - 57.109 hundreds of years, but unfortunately, we're still arguing about it.

02:11 - 58.443 Right.

02:11 - 00.879 Well, there's definitely some there's definitely truth to that.

02:12 - 04.850 Madam Chief Justice, the lines are not always, so distinct.

02:12 - 07.920 And, you know, the purposes underlying statutes

02:12 - 11.290 of limitation and statutes of repose often overlap, right?

02:12 - 14.860 Like statutes of limitation also grant repose to defendants.

02:12 - 17.062 And so there is significant overlap.

02:12 - 21.233 Nevertheless, this court made clear in DuBose versus

02:12 - 24.803 Quinlan in on page 647 of its opinion

02:12 - 28.373 that the words must be commenced

02:12 - 31.376 are some of the biggest hallmarks of a statute of limitations.

02:12 - 34.613 The General Assembly, you know, drafted it

02:12 - 37.683 with precisely such language a draft drafted section 7512.

02:12 - 41.253 But those exact words must be commenced within one year.

02:12 - 43.922 How about the language?

02:12 - 47.225 From 2005.

02:12 - 50.862 And you see, right after a specified time,

02:12 - 54.266 since it descended into.

02:12 - 55.434 Yes, Justice Donohue.

02:12 - 58.770 So on page 15 or 16 of our brief,

02:12 - 01.773 I don't remember exactly which one.

02:13 - 03.675 We we make clear

02:13 - 07.579 that it's not always so clear under the text of 7512

02:13 - 10.782 whether the home inspector will always be the defendant.

02:13 - 12.784 For example. It's not hard to understand.

02:13 - 18.123 It's not hard to ascertain a hypothetical, for example, where the home inspector

02:13 - 22.461 is the plaintiff suing the consumer for breach of contract,

02:13 - 26.031 for delivering a home inspection report.

02:13 - 29.401 But then the consumer skips out on the home inspectors bill

02:13 - 32.971 under the plain text of section 7512.

02:13 - 35.941 That is an action to recover damages

02:13 - 38.710 arising from a home inspection report,

02:13 - 42.147 and therefore it would fall squarely within section 75.

02:13 - 43.315 Twelve's language.

02:13 - 48.220 And so, applying that reasoning from DuBose, it is not clear under

02:13 - 53.091 the text of this law that the home inspector will always be the defendant.

02:13 - 56.061 It happens to be so in this case,

02:13 - 00.198 but engaging in statutory construction, that is hardly preordained.

02:14 - 03.635 If that's true under the language, it's

02:14 - 07.706 they deal with, construction claims.

02:14 - 11.376 And contractor.

02:14 - 13.745 Excuse me? They don't.

02:14 - 15.614 I mean, like,

02:14 - 18.150 we clearly indicated

02:14 - 21.620 that 7536 is a yes.

02:14 - 24.756 We precisely the same language.

02:14 - 31.263 If I can find any contact of the defendant when the gnashing of teeth is ending.

02:14 - 32.664 Certainly.

02:14 - 35.200 If I can very respectfully push back on that just a little bit.

02:14 - 37.569 Justice Donohue.

02:14 - 40.238 The there is materially different language

02:14 - 43.308 between section 5536 and section 7512.

02:14 - 46.711 Section 5536 includes

02:14 - 52.017 the following phrase A civil action or proceeding brought against any person

02:14 - 56.121 lawfully performing, furnishing, the design, etc. of

02:14 - 58.824 or or observation of construction.

02:14 - 02.627 That key phrase brought against a construction worker

02:15 - 08.133 makes clear, unlike section 7512, that the construction worker

02:15 - 11.770 is the defendant under section 5536 here we don't have that.

02:15 - 15.307 And so I don't think there's any textual basis to conclude here.

02:15 - 16.241 Who defendants,

02:15 - 19.711 the, architect.

02:15 - 22.714 I'm sorry, can you delegate the station yard?

02:15 - 26.151 Well, I mean,

02:15 - 28.620 plaintiff, the architect dispute the standing.

02:15 - 31.656 I mean, and I don't think you're going to be making any easier when you

02:15 - 35.393 implies you're not, I don't know,

02:15 - 38.163 clearly, 5536,

02:15 - 41.032 which has the same general dichotomy

02:15 - 44.536 as in, construe discount codes.

02:15 - 47.439 I just don't know how you get around the language.

02:15 - 51.576 That would make and the hallmark, that's again repetitive

02:15 - 55.580 is that the time frame was specified for,

02:15 - 58.950 based upon the defendant's action.

02:15 - 02.754 I think the way we get around that Justice Donoghue is, is from DuBose itself

02:16 - 07.259 on page 647, where the court said that the phrase must be commenced

02:16 - 10.262 is the key hallmark of a statute of limitations

02:16 - 13.565 that you see in 5536.

02:16 - 13.932 Right.

02:16 - 17.335 And I obviously don't want to, you know, argue in circles.

02:16 - 21.506 But, you know, I think that there is a key textual distinction

02:16 - 24.643 here between 5536 and 75, 12 in

02:16 - 28.547 that 5536 is markedly more specific

02:16 - 32.350 about which parties which and here we don't have that.

02:16 - 37.889 And so I think at the very least, it's a legislature didn't speak to it then.

02:16 - 39.391 It is plausibly ambiguous.

02:16 - 41.159 What about the title of the act,

02:16 - 43.261 title of the statute?

02:16 - 44.563 Could you address that?

02:16 - 45.931 Absolutely, Madam Chief Justice.

02:16 - 51.303 So we we fully admit that under the title and headings, canon and unambiguous

02:16 - 56.141 statute, the, when the court is construing or examining an unambiguous statute,

02:16 - 59.945 it can't consider the title and headings to create ambiguity.

02:17 - 01.513 That's not what we're doing.

02:17 - 05.750 Instead, we think that the operative text of section 7512

02:17 - 09.154 is plausibly ambiguous, as the trial court held,

02:17 - 14.159 once you reach that conclusion, the next step, obviously, is to apply

02:17 - 15.360 the canons of construction,

02:17 - 20.031 and then you can turn to the title and headings, which I think you know what?

02:17 - 23.835 What better, you know, example of what the legislature was thinking

02:17 - 27.172 than the actual label they put on their own law, which is

02:17 - 32.377 I'll let him just finish the title on this act is Statute of Limitation.

02:17 - 34.779 Yes, Madam Chief Justice. That's correct.

02:17 - 38.483 Let me follow up on your statutory, construction point.

02:17 - 43.755 In 2019, the General Assembly attempted to amend 7512 to make it

02:17 - 47.659 a statute as proposed specifically, and that was vetoed by Governor Wolf.

02:17 - 49.861 Is that correct? That's correct. What, if any?

02:17 - 54.299 What, if anything, are we to take of that particular action?

02:17 - 56.901 So being as forthright as I can

02:17 - 59.904 with the court, there is case law out there.

02:17 - 03.375 Quoting Justice Scalia that talks about how subsequent

02:18 - 06.878 legislative history is somewhat of a misnomer and that there's little,

02:18 - 09.981 you know, persuasive weight that the court should put

02:18 - 12.984 on subsequent legislative history.

02:18 - 16.988 And we fully can we can see that that's out there.

02:18 - 20.625 But I think if anything, if you are going to examine that,

02:18 - 25.530 what you should take from it is that the legislature identified, hey,

02:18 - 30.201 you know, this is at best ambiguous, at worst is the statute of limitations.

02:18 - 32.671 And that's what we that's not what we want.

02:18 - 34.739 And so we need to effect a change.

02:18 - 39.744 And by specifying that added language, and for the record,

02:18 - 45.283 under the proposed language that the, the General Assembly added in 2019,

02:18 - 48.453 I think there's no question that would have been a statute of repose.

02:18 - 53.491 But again, here, we don't have any anything like that.

02:18 - 55.627 Does that attempt manifest?

02:18 - 58.596 Their intent that it is the statute of limitations is written.

02:19 - 02.067 Does the 2019 amendment,

02:19 - 04.069 the attempted amendment that was vetoed by Governor

02:19 - 08.940 Wolf, in your mind, does that manifest an intention or an omission

02:19 - 11.943 by the General Assembly that it was, in fact, a statute of limitations

02:19 - 14.412 that they were trying to change into a statute of repose?

02:19 - 15.747 I think that's a fair conclusion.

02:19 - 18.083 Justice McCaffrey. Yes.

02:19 - 21.319 At the very least, even if even if you're not persuaded about that,

02:19 - 24.422 the General Assembly made clear that, hey, there's

02:19 - 27.392 some ambiguity here that we need to clear up.

02:19 - 30.028 And so for that reason, I think

02:19 - 34.799 section 7512 is facially ambiguous, requiring the court

02:19 - 39.270 to resort to the canons of statutory construction to resolve the ambiguity.

02:19 - 43.908 One key, one key canon, I think here

02:19 - 48.847 is that section 7512 or excuse me, the home inspection law generally

02:19 - 52.550 is a remedial statute, and this court has made clear that remedial statutes

02:19 - 56.788 must be liberally construed to effectuate their remedial purposes.

02:19 - 01.659 Here, the home inspection law has, a section setting forth

02:20 - 06.097 the duty of care, saying that home inspectors must act as reasonably prudent.

02:20 - 07.699 Home inspectors would.

02:20 - 11.870 It includes a section titled Consumer Remedies, where it sets

02:20 - 14.906 forth various consumer remedies in the event of a breach,

02:20 - 18.143 and also it requires that home inspectors

02:20 - 21.613 carry insurance for at least one year,

02:20 - 23.515 thereby

02:20 - 26.551 manifesting the General Assembly's intent to ensure

02:20 - 30.855 that consumers are adequately compensated in the event of a breach.

02:20 - 33.525 And I think.

02:20 - 35.627 Well, I think that,

02:20 - 37.829 any time frame at all, I,

02:20 - 40.899 I see at least one year and that's just to protect

02:20 - 43.668 actually notice provisions, during insurance policy

02:20 - 46.771 or something of that nature one inch any time frame at all.

02:20 - 50.942 I think the reason for including the time frame, Justice Donohue, is, again,

02:20 - 54.646 to ensure that consumers are fairly compensated here.

02:20 - 56.314 Right, exactly.

02:20 - 59.184 And that that they are under a statute of repose.

02:20 - 59.451 Right.

02:20 - 03.988 Well, that language, though at least one year, is the key language here, I think,

02:21 - 05.290 because if Mr.

02:21 - 09.661 Mangus is correct, that liability is all liability

02:21 - 13.965 is cut off after a year and a day, there's no liability that can exist after that.

02:21 - 16.868 All claims have been substantively extinguished.

02:21 - 21.105 Then those words at least one year become mere surpluses.

02:21 - 24.609 And this court has also made clear that that's not how we read statutes either.

02:21 - 29.280 And so I think in order to effectuate, in order to give effect to those words,

02:21 - 34.319 at least one year, you have to read section 7512

02:21 - 38.456 as a statute of limitations to which the discovery rule can plausibly apply.

02:21 - 41.860 We know

02:21 - 44.996 for the record how much your client, paid for this home.

02:21 - 47.131 Back to,

02:21 - 49.601 we don't know from the record how much she paid for the home inspection,

02:21 - 53.905 your Honor, that the home itself was, over over 90.

02:21 - 58.142 I'm interested in working with the, collective,

02:21 - 02.447 the clerk's wife, for the home inspection in the subsequent report.

02:22 - 05.917 As what you're arguing essentially is at this point,

02:22 - 08.920 an inspector is going to be the insurer

02:22 - 12.657 of that home

02:22 - 14.659 for an indeterminate

02:22 - 17.662 amount of time to find discovers,

02:22 - 20.765 a structural defect, 20 years

02:22 - 25.203 after purchase from sector two by 490.

02:22 - 28.907 So far, indeed, only statute is now the insurer.

02:22 - 33.077 Of that claim,

02:22 - 36.080 for that structural exam.

02:22 - 37.982 So if I can just respectfully push back on that.

02:22 - 41.286 Justice Donohue, our position is not that home and home

02:22 - 44.289 inspectors are indefinite guarantors of the home's condition.

02:22 - 47.058 I think Mr. Mangus endeavors very hard to,

02:22 - 50.428 that he does what?

02:22 - 51.162 You're suing.

02:22 - 54.165 You're suing the home inspector,

02:22 - 57.535 for the, damages incurred

02:22 - 03.241 because of the home inspectors failure to identify you structurally.

02:23 - 05.610 But it's not a strict liability.

02:23 - 08.613 Precisely. Madam Chief Justice Bingham.

02:23 - 09.948 Yeah, yeah.

02:23 - 10.582 That's correct.

02:23 - 12.717 We are suing them, and all we're saying is that.

02:23 - 15.153 Hey, just what just what the statute says.

02:23 - 16.921 And the home inspection law, it says

02:23 - 20.625 if you're going to get into this business, you have to exercise reasonable care.

02:23 - 22.427 And that's all we're saying to.

02:23 - 24.195 But you are saying,

02:23 - 28.032 following up on Justice Donahue's question that for an indeterminate

02:23 - 32.670 number of years, you can be sued for negligence, you're in that limited set

02:23 - 36.641 of circumstances, Madam Chief Justice, where there's a hidden defect

02:23 - 41.045 that is readily ascertainable to a professional but not a layperson.

02:23 - 44.048 And I think this is a unique set of circumstances in that way.

02:23 - 49.454 But in this unique set of circumstances, yes, the discovery rule can provide

02:23 - 53.224 for such a suit as it can in many other types of cases.

02:23 - 57.061 Yeah, but in no circumstances you're talking about it have to be to

02:23 - 00.598 you have to engage in discovery to see whether or not it would, in fact be

02:24 - 02.734 covered.

02:24 - 05.536 Or in other words, it was in fact readily discoverable

02:24 - 06.971 at the time of the home inspection.

02:24 - 08.473 That's precisely correct, Your Honor.

02:24 - 09.841 We're not talking about strict liability.

02:24 - 11.576 You still have all the elements of proof, either

02:24 - 14.879 on a breach of contract for four years or a negligence claim for two years,

02:24 - 17.281 if it was a statute of limitations. Right.

02:24 - 18.750 Correct. Justice McCaffrey. Yes.

02:24 - 23.821 And again, this is a pure question of law, whether the discovery rule can plausibly

02:24 - 27.992 apply to section 7512, not necessarily whether it does apply in this case.

02:24 - 30.461 That's an issue for some of judge forever. Right.

02:24 - 32.964 If the if we determine this is

02:24 - 35.133 a statute

02:24 - 38.936 of limitations, not a statute of repose, and therefore it's

02:24 - 43.374 subject to the discovery rule, is it forever?

02:24 - 45.877 That is the liability.

02:24 - 48.212 The risk of liability is that forever?

02:24 - 49.681 Oh, I think not, Madam Chief Justice.

02:24 - 52.717 No, because the case law is clear that, you know,

02:24 - 56.554 you have to exercise reasonable diligence to discover injuries, right?

02:24 - 59.957 If you if you ignore something, for example, like, let's

02:24 - 04.095 assume that they did let's let's assume that they didn't do anything

02:25 - 08.066 like 25 years after the home inspection,

02:25 - 11.703 a structural beef that evidence itself,

02:25 - 15.273 they get two years from that period.

02:25 - 16.808 But that's

02:25 - 17.842 after you come back.

02:25 - 19.911 Yeah. Correct, correct.

02:25 - 21.612 A year by two years.

02:25 - 22.046 Correct.

02:25 - 22.914 Justice Donohue,

02:25 - 26.884 as long as and I think this is important, as long as that structural defect

02:25 - 30.388 was readily ascertainable at the time of the inspection itself.

02:25 - 34.158 Again, we're not saying that home inspectors, home inspectors should have to

02:25 - 38.329 divine likely, you know, issues with a property.

02:25 - 40.064 That's not necessarily the issue.

02:25 - 42.834 They're not indefinite guarantors of the property.

02:25 - 46.671 We're just saying, hey, guarantors, all because it's a negligence standard.

02:25 - 49.440 Precisely, precisely, madam Chief Justice. Yes.

02:25 - 52.744 All we're saying here is that, hey, you should have found out.

02:25 - 57.014 You should have taken a look under the addition and saw that

02:25 - 01.619 it was supported only by four inch by four inch wooden posts without a foundation.

02:26 - 03.387 We don't

02:26 - 06.390 think that's asking too much of a home inspector.

02:26 - 09.160 Turning to,

02:26 - 12.663 the constitutional doubt issue, because I think this is critical,

02:26 - 15.700 especially Justice Donohue under your knockoffs.

02:26 - 18.736 That I think is a key issue

02:26 - 21.773 here under the constitutional doubt canon.

02:26 - 25.042 Yes, of course you can make an argument like that.

02:26 - 27.311 This isn't the only case. This comes up. Okay.

02:26 - 28.446 But the attorney general,

02:26 - 32.784 I know this can be calling into question the constitutionality of this statute.

02:26 - 36.420 No, justice Donohue, because this court has made clear in the past

02:26 - 39.390 that notice to the attorney General is only required in

02:26 - 42.860 facial attacks on a statute's constitutional ality.

02:26 - 44.629 And, Justice Robson, as you said

02:26 - 47.632 in Zimmerman versus Schmitt, in your concurrence,

02:26 - 52.103 that makes good sense, because the reason for the notice rules

02:26 - 55.673 is to ensure that statutes are only struck down on their merits,

02:26 - 59.310 rather than on procedural technicalities like a default judgment.

02:26 - 01.412 And that's not what we have here.

02:27 - 03.648 So those policy rationales don't apply.

02:27 - 07.051 Instead, we're actually asking the court to avoid having

02:27 - 10.755 to strike down the statute as it could be constitutional.

02:27 - 13.057 So we have to go through the entire analysis.

02:27 - 17.728 It could be unconstitutional and then say,

02:27 - 21.666 we're going to avoid this question because it could be unconstitutional.

02:27 - 22.733 I think that's right.

02:27 - 26.070 And that's exactly what the court in Harold versus University of Pittsburgh

02:27 - 29.073 did just a few months ago.

02:27 - 32.143 It first time is right.

02:27 - 36.480 And the issue is not that we have to clearly, palpably demonstrate

02:27 - 39.817 that this is, violative of the remedies clause.

02:27 - 43.621 Instead, what we have to do is show that it raises serious constitutional doubts.

02:27 - 45.857 And on that score, Mr.

02:27 - 50.628 Mangus, at no point in this case has ever contested that proposition.

02:27 - 56.567 He could have, for example, you know, cited a study showing that home inspectors

02:27 - 01.405 are subject to abnormally, you know, high insurance rates or something like that.

02:28 - 04.408 The typical justification for,

02:28 - 07.845 a statute of repose under the remedies clause.

02:28 - 09.113 He hasn't done that.

02:28 - 12.617 And so there's no basis to conclude here that Mr.

02:28 - 15.453 Mangus could satisfy intermediate scrutiny,

02:28 - 18.422 assuming that we're right and this is a statute of limitations.

02:28 - 20.758 And again, all we're

02:28 - 24.095 asking is for this court to do exactly what it did several months ago

02:28 - 27.798 in January in the Herald versus University of Pittsburgh case.

02:28 - 32.003 And I don't know the answer to that.

02:28 - 36.340 With, 55, 36, every challenge has been constitutional.

02:28 - 39.343 We came to the conclusion that the statute of of.

02:28 - 40.778 I don't know the answer to that.

02:28 - 43.414 Justice Donahue admittedly.

02:28 - 44.715 But yeah.

02:28 - 48.519 So the home inspection law, as I was saying, is a remedial statute

02:28 - 50.388 that must be liberally construed.

02:28 - 55.226 And I think also it's important to take into account the absurdity canon here.

02:28 - 57.528 That's a well-established canon of construction.

02:28 - 59.397 And here what Mr..

02:28 - 01.265 The upshot of Mr.. Mangus is argument.

02:29 - 06.203 And the Superior court's conclusion is that consumers can no longer

02:29 - 10.641 rely on their home inspector's expertise, that they have to effectively hire

02:29 - 15.579 additional home inspectors to fact check the findings of those that came before.

02:29 - 18.783 I think there's a common sense matter that cannot be right,

02:29 - 21.886 that cannot be what the General Assembly had in mind.

02:29 - 23.321 It just can't.

02:29 - 26.891 And so for that reason, I think the court should also turn to the absurdity canon

02:29 - 31.562 when construing this statute to avoid that unnecessarily absurd result.

02:29 - 36.534 Turning to the preemption issue that Mr.

02:29 - 39.537 Mangus has raised throughout this case,

02:29 - 42.473 there there have been at least three separate justifications

02:29 - 44.642 for that conclusion.

02:29 - 47.411 I think none of them are applicable here.

02:29 - 50.081 The most,

02:29 - 53.250 the first one that he raises is the statutory exclusivity

02:29 - 56.420 rule, section 1504 of the Statutory Construction Act.

02:29 - 59.991 And here,

02:29 - 02.159 in the section entitled Consumer Remedies,

02:30 - 05.229 section 75 05D of the Home Inspection

02:30 - 09.834 Law, the legislature actually made clear that it desires

02:30 - 13.471 to expressly preserve all remedies available.

02:30 - 16.640 Quote under the the UTP, SPL,

02:30 - 19.810 or other applicable provisions of law.

02:30 - 23.647 And so I think there's just no basis here to conclude

02:30 - 28.386 that the legislature somehow impliedly abrogated the common law,

02:30 - 32.323 when in fact they expressly rejected that presumption.

02:30 - 37.028 Secondly, this,

02:30 - 41.132 the legislative preemption issue that the Superior Court raised, I think, is

02:30 - 47.238 similarly inapt because the Superior Court cited Nutter versus Daugherty.

02:30 - 51.575 A case that discussed legislative preemption and preemption

02:30 - 55.679 is not applicable here, because there's no municipal ordinance

02:30 - 58.682 that's being compared to a state statute

02:30 - 01.919 to compare which should which should prevail.

02:31 - 02.686 There's no express

02:31 - 06.190 preemption, there's no field preemption, and there's no conflict preemption.

02:31 - 07.324 And therefore,

02:31 - 11.495 there's no basis to conclude that the legislature somehow

02:31 - 14.598 impliedly abrogated the common law on that ground,

02:31 - 17.601 either.

02:31 - 20.371 And in fact, in Roe Verano versus

02:31 - 23.574 John Crean incorporated a 2020 case from this court.

02:31 - 27.211 This court rejected that precise argument that Mr.

02:31 - 30.181 Mangus is making here, and that the Superior Court made below

02:31 - 33.751 that, because the statute is somewhat

02:31 - 36.754 comprehensive, that impliedly indicates

02:31 - 40.791 the legislature's unstated intent to abrogate the common law.

02:31 - 42.726 The court in real Verona said.

02:31 - 44.762 Yeah, we don't construe statutes that way.

02:31 - 48.365 The legislature has to expressly preempt common law

02:31 - 51.702 in order for the common law to be disregarded.

02:31 - 56.373 If the court has, any further questions, I welcome them.

02:31 - 58.476 Otherwise I will step down.

02:31 - 02.379 Mr. C for Hollis, is this your first appearance before this court?

02:32 - 04.014 It is, Madam Chief Justice.

02:32 - 05.816 And how long have you been practicing?

02:32 - 07.885 I have been practicing for four years now.

02:32 - 10.754 Well, welcome to the court.

02:32 - 13.090 Very well done. Thank you. Thank you all very much.

02:32 - 15.926 Here from, Mr.

02:32 - 18.929 Martin Nucci, your

02:32 - 21.799 your opponent set a really high bar,

02:32 - 24.802 so you better be good.

02:32 - 28.372 Even worse, we're from the same town, so I have to see him all the time.

02:32 - 30.241 Right now.

02:32 - 33.144 Through the through the.

02:32 - 34.145 We do have those.

02:32 - 37.148 We don't live close enough that I can snow blow to his house, but.

02:32 - 45.723 Madam Chief Justice, justices of this honorable court.

02:32 - 47.725 My name is Arthur Martin Nucci.

02:32 - 49.660 And I'm the attorney for Benjamin Mangus.

02:32 - 52.663 In this case,

02:32 - 54.498 An action

02:32 - 58.269 to recover damages arising from a home inspection report

02:32 - 03.307 must be commenced within one year after the date the report is delivered.

02:33 - 06.443 And that's by virtue of statute of repose.

02:33 - 09.046 This this is the language of the statute.

02:33 - 13.384 Yeah, but I think that the reason I'm asking is I'm curious if you found

02:33 - 17.454 any other, any other one year statute

02:33 - 20.457 of repose and repose in Pennsylvania law?

02:33 - 23.460 No, sir. I mean, what is it? What is it? So,

02:33 - 27.164 you know, special

02:33 - 32.503 about home inspections that would require the strictest standard of repose.

02:33 - 33.637 Talking about standard.

02:33 - 37.107 Yes, sir. Statute repose in Pennsylvania.

02:33 - 40.110 I have all the things in life.

02:33 - 42.413 Why would a one year statute

02:33 - 45.416 of repose exist only,

02:33 - 46.884 only for home inspection?

02:33 - 50.754 And despite the title that it's a statute of limitation, right.

02:33 - 56.727 So. And Justice Daugherty, I have to confess to eavesdropping there

02:33 - 57.161 a little bit.

02:33 - 00.431 And I agree with you because the General Assembly said it. So.

02:34 - 02.066 Right.

02:34 - 05.803 I, I can't get into their heads and tell you why they chose this.

02:34 - 10.140 I can surmise and I can surmise, because if you're going to pay

02:34 - 15.813 somebody $500 to come and take a look at your house for an hour,

02:34 - 19.950 and then you're going to pay several hundred thousand dollars for that house,

02:34 - 23.821 that that individual that you paid $500

02:34 - 29.326 to should not be on the hook for an extended and potentially unlimited,

02:34 - 34.131 certainly in determinate period of time in exchange for that $500.

02:34 - 36.600 But they're not on the hook. It's their insurance company.

02:34 - 38.569 Not that we're supposed to know anything about that, but

02:34 - 43.107 it in theory, you're right.

02:34 - 45.776 But by the same token, sir,

02:34 - 50.381 there are instances where insurance companies deny coverage, okay?

02:34 - 52.850 And maybe it's a contractual basis.

02:34 - 55.853 Maybe it's because the home inspector has stopped

02:34 - 00.457 and a year has passed and he doesn't carry that insurance anymore.

02:35 - 04.862 And they say, well, this is, you know, this this, this is this isn't a policy

02:35 - 08.766 that we're going to honor at this point in time, because you did this inspection

02:35 - 13.003 two years ago and the and the insurance stops now.

02:35 - 14.371 You're not doing these anymore.

02:35 - 15.973 So the insurance stop

02:35 - 19.076 and the claim wasn't made within the time applicable to the policy.

02:35 - 21.545 There are claims made policy, but there's different policies

02:35 - 25.616 you could acquire that would cover you for any damages relating to a

02:35 - 29.386 negligent home inspection, for instance, I think that I think that theoretically

02:35 - 30.888 that is possible.

02:35 - 34.491 But whether or not that is the case here is something that's

02:35 - 39.229 not a matter of record and not relevant that any of this is a matter of record,

02:35 - 43.167 but the insurance premium is likely

02:35 - 46.170 based upon the period of exposure.

02:35 - 48.205 I would agree, absolutely.

02:35 - 50.240 And if

02:35 - 53.777 the exposure is unlimited or the exposure is indeterminate,

02:35 - 57.481 then the cost of that is going to go up and then the cost of the home inspection

02:35 - 58.649 is going to go up.

02:35 - 02.319 Or if this court were to determine that this is a statute of limitations

02:36 - 05.756 and not a statute of repose, then at that point in time,

02:36 - 07.658 you know, parade of horribles.

02:36 - 10.027 But at that point in time, you have a situation

02:36 - 13.263 where insurance policies might just start going by the wayside,

02:36 - 15.032 right, where an insurance company

02:36 - 18.035 says, we're no longer writing this, we're not going to renew you.

02:36 - 19.670 Let me ask you another question.

02:36 - 21.872 That's a more practical question. Yes, sir.

02:36 - 25.209 Everybody I think understands here you acquire a home,

02:36 - 26.910 you retain a home, inspector.

02:36 - 28.679 Do it in his home inspection

02:36 - 31.281 so you don't buy a house that has a lot of damage to it.

02:36 - 33.684 I mean, that's what the you know, you want to obtain an expert

02:36 - 35.552 to take a look at it, make sure everything's okay.

02:36 - 37.988 So you don't have to have expenditures out of your pocket.

02:36 - 41.492 It's almost always done in contemplation of an agreement of sale

02:36 - 43.327 and closing on a property. Right? Yes, sir.

02:36 - 46.230 If we adopt what you're saying and say this is the statute of repose,

02:36 - 48.332 which is one year from the data delivery,

02:36 - 51.402 what happens if discover if my closing is delayed,

02:36 - 54.905 or I choose not to move into the property for a year or a year and a half?

02:36 - 58.609 I mean, basically you're saying that in that situation

02:36 - 02.012 I'm completely out of luck, but you're on notice, right?

02:37 - 05.282 You've got one year from the date that the report is delivered.

02:37 - 06.884 It is clear.

02:37 - 09.887 So you can you can make adjustments at that point in time.

02:37 - 13.390 What adjustments could have made if the if for whatever reason, that

02:37 - 17.461 the seller can't contemplate or close on the deal or buy financing

02:37 - 20.664 doesn't come through for six months or a year, pay another home inspector

02:37 - 23.667 $500 to go out and take another look or give you a new report.

02:37 - 27.371 Okay, possibly bring suit against the home seller

02:37 - 31.108 for failing to disclose defects, or against the realtor

02:37 - 34.511 for failing to disclose defects that should have been discovered,

02:37 - 35.913 assuming there are defects. I'm not.

02:37 - 37.881 I'm just basically saying if we accept that yet

02:37 - 40.951 the statute of repose and I don't close on the property,

02:37 - 44.188 but they give me the report for a year or a year before,

02:37 - 45.756 I can't sue the home inspector.

02:37 - 49.560 If I get in there, I on day one, I discover significant problem

02:37 - 51.962 problems with the property that he should have picked up on.

02:37 - 53.564 I recognize the hypothetical.

02:37 - 57.067 It is within the realm of possibility, but not the realm of probability.

02:37 - 58.135 Okay,

02:37 - 00.671 in that instance,

02:38 - 03.974 yes, you would be out of luck at that point in time.

02:38 - 07.578 Because that's the nature of a statute of repose.

02:38 - 10.981 That's a one year period,

02:38 - 15.953 calling to question the constitutionality of this statute of repose.

02:38 - 17.754 If it is such a thing.

02:38 - 21.091 Well, first of all, I believe that any constitutional arguments have been weighed

02:38 - 23.760 because the attorney general was not put on notice.

02:38 - 25.963 And in this

02:38 - 28.966 I'm sorry with you, I think he's correct about the,

02:38 - 31.101 putting on notice.

02:38 - 33.270 This is not a direct challenge.

02:38 - 35.105 I believe this is a

02:38 - 37.040 if you look at the relief, I believe, respectfully,

02:38 - 39.042 that it would be a facial challenge

02:38 - 43.180 because you're saying that it would be unconstitutional as to the entire class

02:38 - 46.383 of homeowners, it's not an as applied challenge.

02:38 - 52.055 He's saying he's not really challenging the constitutionality.

02:38 - 55.759 He's saying, take a look at this and analyze it,

02:38 - 59.796 and you make include that this could be unconstitutional.

02:38 - 04.568 Therefore, I call it a statute of limitations.

02:39 - 07.571 Okay.

02:39 - 09.439 I think I think that at the end of the day,

02:39 - 11.808 the nature of the challenge would be facial.

02:39 - 16.580 However, looking at that situation, and you're in your analysis of it,

02:39 - 19.683 I do not believe that the fact that it is a one year

02:39 - 24.087 statute of repose poses any constitutional question.

02:39 - 27.958 Mr.. Mark Nucci, could you address the title of the statute?

02:39 - 34.631 The title of the statute is irrelevant, but let's just go.

02:39 - 37.634 Oh, oh, it says it says statute of limitation,

02:39 - 40.771 just like the title of the statute

02:39 - 44.107 in DuBose said statute of repose.

02:39 - 49.980 But you looked at the language of the statute itself and determined

02:39 - 52.983 in that instance that that was

02:39 - 55.852 a statute of limitations, despite its title.

02:39 - 57.020 If it's clear. Right.

02:39 - 00.157 Are we looking at whether it's clear to us that it's

02:40 - 03.493 one or the other, or do you just say we don't look at the title at all?

02:40 - 04.094 I think

02:40 - 07.097 I think that you look at the language and if the language is clear

02:40 - 11.068 and unambiguous, you follow the language and the title is not an issue.

02:40 - 14.471 If you look at the if you look at the trial court's opinion

02:40 - 18.942 in this matter, the trial court went right for the title.

02:40 - 20.811 There was no analysis.

02:40 - 23.380 He said, oh, they wouldn't have called it

02:40 - 27.684 a statute of limitations if they meant it to be a statute of repose.

02:40 - 30.721 Therefore, I find it to be ambiguous.

02:40 - 32.589 That's his analysis.

02:40 - 34.191 Yes, to the title.

02:40 - 38.729 Unless the language of the statute is exactly, exactly.

02:40 - 40.964 And again, you've got 24 words here.

02:40 - 42.032 One sentence.

02:40 - 46.937 This is about as clear a statutory

02:40 - 50.140 directive as you can get

02:40 - 53.143 in this Commonwealth with the General Assembly.

02:40 - 56.880 And there's no ambiguity in any of this language.

02:40 - 02.152 Well, your, opposing counsel says, I don't know if this is an ambiguity

02:41 - 06.623 or just a potential outcome of this, that this could mean that,

02:41 - 10.727 the home inspector would have a year

02:41 - 15.599 to shoo the homeowner for.

02:41 - 20.337 He says damages arising from a home inspection report.

02:41 - 25.409 I'm assuming he's saying for not paying for a home inspection, not for the report.

02:41 - 27.544 But I mean, help me with that and that.

02:41 - 29.413 And that is, I believe, his argument.

02:41 - 33.183 So in that regard, the first thing that somebody would have to do

02:41 - 36.987 is determine whether or not the issuance of an invoice

02:41 - 40.490 arises out of a home inspection report.

02:41 - 44.661 If it does, then yes, the one year statute of repose applies,

02:41 - 50.133 but what is important is the date the clock starts ticking.

02:41 - 53.670 It's the date that the report is delivered.

02:41 - 56.940 And if that's the case,

02:41 - 00.043 and if the home inspector has to live with that, then so be it.

02:42 - 04.381 Counsel.

02:42 - 07.384 Could you distinguish this statute

02:42 - 12.255 7512 from section 5536?

02:42 - 15.425 Honestly, Your Honor, I could not, I believe

02:42 - 18.428 that they are essentially the same language.

02:42 - 21.498 There's a little bit more in play there.

02:42 - 25.202 But the the must commence within a period of time.

02:42 - 27.204 Language is identical.

02:42 - 31.475 And this court has repeatedly held that to be a statute of repose

02:42 - 35.312 and has applied it now, again,

02:42 - 38.081 you might have an issue with the General Assembly's assignment

02:42 - 41.618 of a 12 month period of time, as opposed to a 12 year period of time.

02:42 - 46.189 But let's let's talk about that for a little bit, because if this violates

02:42 - 49.392 the remedies clause, then the legislature

02:42 - 54.331 needs strong reasons, strong government interests

02:42 - 57.868 for imposing a one year statute.

02:42 - 01.471 What would those strong reasons be?

02:43 - 03.206 Well, I think that they would take a look.

02:43 - 06.943 And again, I'm putting myself in the in the place of the General Assembly.

02:43 - 07.978 So hopefully they'll

02:43 - 10.981 they'll follow this argument and listen if they need to do something.

02:43 - 14.251 But at the end of the day,

02:43 - 18.421 I think that they would look at the entire home buying process,

02:43 - 22.893 because getting a home inspection report isn't just a matter of convenience.

02:43 - 26.730 And it's not just a matter of of wanting to,

02:43 - 29.900 make sure that you get a home without a lot of defects in it.

02:43 - 33.570 It goes to financing, it goes to the mortgage process,

02:43 - 36.673 it goes to the insurance process. Okay.

02:43 - 38.742 All of these things are important.

02:43 - 42.612 And if you pull the plug on this and all of a sudden getting a home inspection

02:43 - 46.483 becomes more expensive, or finding a home inspector becomes more difficult,

02:43 - 49.820 then you're going to slow that entire chain of commerce down.

02:43 - 53.123 And I think that, my opposing counsel indicated that there were

02:43 - 57.327 approximately 134,000, homes, maybe even more than that.

02:43 - 00.730 But I forget if it was 130 489,000

02:44 - 03.733 homes purchased in the Commonwealth of Pennsylvania.

02:44 - 06.937 So you're going to put a plug in that, or maybe you're going to,

02:44 - 10.173 make home inspectors more careful.

02:44 - 14.911 The possible

02:44 - 17.881 again, without without,

02:44 - 21.084 without suggesting that my client did anything wrong in this case.

02:44 - 27.424 Again, that is within the realm of probability of possibility.

02:44 - 29.392 But is it within the realm of probability?

02:44 - 30.961 I don't know, I don't think so.

02:44 - 33.463 Well, okay. You're a home inspector.

02:44 - 39.302 The inspector could exclude an inspection for structural damage.

02:44 - 40.804 Could they not?

02:44 - 43.807 I mean, because that's really what the problem is.

02:44 - 46.109 I mean, if somebody, if there's a,

02:44 - 49.112 you know, electrical box defect or,

02:44 - 52.415 you know, I, you know, significant

02:44 - 55.418 plumbing issue or something of that nature that's going to show up.

02:44 - 00.957 But lack of foundation seems pretty foundational, but could but could could it

02:45 - 04.094 could inspect at home, Inspector.

02:45 - 09.099 Exclude an inspection for structural, sufficiency or

02:45 - 13.203 or structural integrity from the home inspection report.

02:45 - 18.074 I would need to take a look at the statute itself,

02:45 - 22.178 because I think that there are specific things that are required

02:45 - 26.249 and specific things that are excluded that's not statutorily driven,

02:45 - 27.584 that's contractual

02:45 - 28.351 because the contract

02:45 - 31.855 between the homeowner, the prospective homeowner and the home inspector,

02:45 - 35.292 the home inspector always excludes certain items that are not visual.

02:45 - 38.628 Visual, for instance, termite damage on a hardwood floor

02:45 - 41.731 where there's carpets down, that's almost always excluded.

02:45 - 44.267 But I think that some of that is addressed in the statute itself,

02:45 - 47.304 some of that is addressed in the statute itself.

02:45 - 49.239 So I think that it is statutorily driven.

02:45 - 51.107 Okay.

02:45 - 53.410 So yes, theoretically they could,

02:45 - 56.613 but could they do it without additional legislative action?

02:45 - 59.616 I don't know, I'd have to look at that to, to to tell you.

02:45 - 01.751 Okay. I think we understand the case.

02:46 - 04.621 Is there anything else you want to say to us?

02:46 - 07.590 We feel compelled to say,

02:46 - 11.227 No. Your honor, I appreciate the opportunity to be here today.

02:46 - 15.365 And, I, I do hope that you will look at this.

02:46 - 20.603 Look at the briefs, and agree that this is, in fact, a statute of repose.

02:46 - 23.974 I promise you, we will look at this and look at the briefs and

02:46 - 26.743 no promises as to the outcome.

02:46 - 28.845 And you did an equally fine job. Yes.

02:46 - 29.479 Thank you, Your Honor.

02:46 - 31.414 I appreciate I'm not going to ask how many years

02:46 - 34.050 you've been out of law school, provided you don't ask me.

02:46 - 35.418 I will not ask you.

02:46 - 39.022 I will tell you that I'm in my 34th year, but this is the first time

02:46 - 40.323 that I've been in front of this court.

02:46 - 42.292 Well, welcome back, Gratulations.

02:46 - 43.960 So when you see him, when you see him on the street

02:46 - 46.796 in your hometown, you can hold your head up high. All right. Well done.

02:46 - 49.966 The next case is

02:46 - 54.270 TMH versus LQ versus

02:46 - 57.574 J RL and CL.

02:46 - 03.380 In this matter there is a minor child's interests at stake, and the court

02:47 - 06.816 has abbreviated the names of the parties to protect

02:47 - 09.819 the interests of that child.

02:47 - 13.556 In Pennsylvania, in order to seek primary physical

02:47 - 17.694 and legal custody of a child, a family member must have legal standing.

02:47 - 22.098 Standing is the right to bring a legal claim or challenge a decision in court

02:47 - 23.533 without standing.

02:47 - 26.870 The challenging family member is unable to seek or obtain

02:47 - 30.173 physical and legal custody of a child.

02:47 - 33.943 This case is about a custody dispute between a maternal

02:47 - 38.214 and paternal grandparents over their 14 year old grandchild.

02:47 - 40.617 After his mother passed away.

02:47 - 43.053 Pennsylvania law allows for family members

02:47 - 47.924 to intervene and seek custody of a child when that child has been neglected,

02:47 - 51.161 or it is in the best interests of the child.

02:47 - 54.798 In this case, the parties disagree about whether the child has been

02:47 - 58.501 neglected, as well as what is in the best interest of the child.

02:47 - 00.570 The background is.

02:48 - 05.175 In 2010, a child was born and lived with his mother and maternal grandparents.

02:48 - 08.178 The mother was not married to the child's father at the time.

02:48 - 13.149 Four years later, the mother married another man and moved in with the child

02:48 - 17.287 to a trailer home located on the maternal grandparents property.

02:48 - 21.558 The maternal grandparents supported and cared for the child

02:48 - 25.195 while he went back and forth between the trailer home on the property

02:48 - 28.064 and the maternal grandparents house.

02:48 - 31.134 During this time, the father had little contact with the child.

02:48 - 35.138 In 2020, the mother separated from her husband

02:48 - 38.741 and moved with the child to live with his paternal grandparents.

02:48 - 44.047 Around that time, the maternal grandparent intervened in the pending custody case

02:48 - 47.984 between the mother and the father by filing a petition

02:48 - 51.621 for emergency shared physical and legal custody of the child.

02:48 - 53.490 In August

02:48 - 57.594 2020, the child's mother, father and paternal grandparents

02:48 - 02.932 signed a consent custody order that gave the paternal grandmother

02:49 - 06.402 intervenor status to proceed in the custody matter

02:49 - 10.573 and ordered shared physical and legal custody of the child

02:49 - 13.877 between the mother and the paternal grandmother.

02:49 - 18.414 This agreement was signed without the knowledge of the maternal grandparents.

02:49 - 21.184 In April 2021.

02:49 - 23.753 The mother unfortunately passed away.

02:49 - 26.322 Thereafter, the maternal grandparents

02:49 - 30.627 filed a complaint for modification of the custody agreement to grant them

02:49 - 33.963 primary physical and legal custody of the child.

02:49 - 39.035 Ultimately, the court granted the maternal grandparents shared

02:49 - 44.574 legal custody and primary physical custody of the child, subject to periods

02:49 - 49.445 of partial physical custody for the father and the paternal grandmother.

02:49 - 52.916 The court also found that the maternal grandparents

02:49 - 56.786 have standing to obtain custody under the relevant Pennsylvania law.

02:49 - 01.057 The paternal grandparents appealed the trial court's decision

02:50 - 06.462 to the Superior Court, which vacated or basically removed the prior decision,

02:50 - 10.800 ruling that the trial court aired when it determined that the maternal grandparents

02:50 - 14.971 had standing to obtain the primary and physical legal custody.

02:50 - 19.042 Because the maternal grandparents lacked standing under the law

02:50 - 24.013 because they did not file their complaint for primary and or legal custody

02:50 - 26.616 within the required time frame,

02:50 - 31.087 the Superior Court also remanded the case and send it back to the trial court

02:50 - 34.891 to consider whether it would be in the child's best interest to award

02:50 - 38.261 maternal grandparents partial physical custody.

02:50 - 42.198 The maternal grandparents are now appealing to the Pennsylvania

02:50 - 45.201 Supreme Court, where they wish to have the courts.

02:50 - 48.304 The Superior Court's decision reversed

02:50 - 52.075 the maternal grandparents make several arguments in the appeal.

02:50 - 56.813 They argued that the prior Pennsylvania Case Authority supports their standing

02:50 - 59.349 and request for custody because of the father's

02:50 - 04.020 lack of involvement, and interest in the child's life constitutes neglect.

02:51 - 07.857 They also argue that they preserved their claim for standing

02:51 - 11.060 and their separate request for emergency custody of the child,

02:51 - 15.798 and lastly, that they believe that it's in the best interest of the child

02:51 - 20.103 and the child's actual preference for them to have primary custody.

02:51 - 24.407 In contrast, the paternal grandparents argue

02:51 - 28.077 that the Superior Court's decision should be upheld for three reasons.

02:51 - 33.216 First, the father's lack of interaction with the child does not constitute

02:51 - 37.020 neglect, and regardless, the trial court's factual findings do not support

02:51 - 41.758 that the child is substantial at risk due to the alleged neglect.

02:51 - 45.762 Second, that granting custody to the paternal grandparents

02:51 - 50.800 is in the best interest of the child due to their previous care for the child.

02:51 - 54.437 And finally, they claim that the maternal grandparents

02:51 - 58.841 do not have standing to challenge custody under Pennsylvania law

02:51 - 02.412 because they did not intervene within the required time period.

02:52 - 05.982 Let's listen to the parties oral arguments.

02:52 - 09.185 Good afternoon, Chief Justice Todd

02:52 - 12.455 and the esteemed justices of the Supreme Court.

02:52 - 14.424 My name is Gail Calderwood.

02:52 - 17.427 I represent the appellant to maternal grandparents,

02:52 - 20.763 and I will refer to them as maternal grandparents throughout my argument.

02:52 - 25.268 If the court would permit, I'll refer to their grandchild as child.

02:52 - 29.005 And for the appellate,

02:52 - 33.743 it is essentially maternal grandmother that is fighting this case.

02:52 - 35.445 I'll refer to her as maternal grandmother.

02:52 - 39.816 The maternal grandfather is a step grandparent and he was,

02:52 - 43.886 as I think the trial court described, a quasi applicant or the court

02:52 - 44.687 described in that way.

02:52 - 49.058 He wasn't that involved longer participating in the appeal.

02:52 - 50.259 Anyway.

02:52 - 51.394 That's the father,

02:52 - 54.530 but the step grandfather just never really the grandfather.

02:52 - 55.732 Yeah.

02:52 - 59.235 He doesn't really seem to play a big role, let's put it that way in this.

02:52 - 02.905 And I don't think he technically filed to intervene.

02:53 - 04.874 It was a that was a paternal grandmother.

02:53 - 08.111 So it gets a little confusing because sometimes the the record

02:53 - 11.114 refers to paternal grandparents, but it's really paternal grandmother.

02:53 - 12.949 All right. So with that out of the way, Your Honor,

02:53 - 17.520 we're here today because, I'm arguing that

02:53 - 20.857 the Superior Court

02:53 - 24.460 committed an error when it ruled that essentially,

02:53 - 29.599 as long as father is alive and hands the reins of parenthood

02:53 - 33.202 to his parents and his mother, the paternal grandmother,

02:53 - 37.273 then the maternal grandparents cannot assert

02:53 - 40.743 that the child is in a state of neglect or substantial risk,

02:53 - 44.013 and they are barred from proceeding under the sub

02:53 - 48.050 prong B of 5324, paragraph

02:53 - 52.121 three, subsection 3IP that was

02:53 - 55.758 that was never raised in any day.

02:53 - 58.628 During and I, I'm

02:53 - 01.831 not aware of how an appellate court

02:54 - 05.234 can change a standing section

02:54 - 07.470 suit for now.

02:54 - 08.838 I understand, Your Honor.

02:54 - 10.640 At the trial level,

02:54 - 15.945 the counsel for the maternal grandparents filed initially a petition to intervene

02:54 - 19.182 and subsequently followed that up with a custody complaint,

02:54 - 21.684 either one of them specifically bringing subsection B here.

02:54 - 22.552 Correct.

02:54 - 25.188 And at various times throughout the litigation,

02:54 - 26.489 there was discussion about whether

02:54 - 29.959 they might have an apprentice status, which they did assert at one point.

02:54 - 33.629 They also at one point argued they might qualify under subsection

02:54 - 36.666 C, the 12 month, six month rule, as I like to call it.

02:54 - 40.403 But they also generically did argue

02:54 - 45.508 that they had standing under 53, 24 on the record in both testimony.

02:54 - 48.845 And then the judge, the trial judge, when he ruled on the matter.

02:54 - 53.816 Granted, it was a very succinct ruling, but he stated that he felt

02:54 - 57.453 they had standing under 53, 24, subsection three.

02:54 - 00.456 He did not go into any great specifics at that time

02:55 - 05.328 about how he reached that conclusion, but our argument is that on appeal

02:55 - 06.762 and its turnover appeal,

02:55 - 11.133 the review of the Superior Court should be to also consider all applicable law.

02:55 - 14.103 And they overlooked. Yeah, that I mean, I'm sorry about that.

02:55 - 17.573 I think that that's another sort of, disjunction here.

02:55 - 20.643 Like I know that the trial court

02:55 - 23.679 can raise them as soon as whatever.

02:55 - 27.083 1915 .58

02:55 - 30.086 but how can the appellate court do that?

02:55 - 34.156 Well, I think the stand was in front of the appellate court under 53, 24,

02:55 - 38.294 and they were considering A, B, and C in their opinion,

02:55 - 43.799 they rather quickly throughout A that did not apply

02:55 - 49.038 and they rather succinctly, disregarded B because again,

02:55 - 54.443 they felt that this cloak of safety put that claim off limits,

02:55 - 55.945 and therefore the maternal grandparents

02:55 - 59.115 were barred and constrained from proceeding under that prong.

02:55 - 02.552 But the spirit court themselves considered all three prongs,

02:56 - 06.789 but in their in their effort to do said the majority opinion overlooked

02:56 - 10.993 the findings that their own court had made in the gap case previously,

02:56 - 15.097 and it was in but Judge Bowes dissent that she argued that that should have been

02:56 - 18.868 a consideration, that the court should have considered all applicable law.

02:56 - 24.373 And so we're just arguing that it falls under the grand umbrella of that 5324,

02:56 - 28.311 standing argument, and that

02:56 - 32.748 under GAAP, it was explicitly this kind of situation

02:56 - 37.420 that the Superior Court was saying should not allow one set of grandparents

02:56 - 41.791 to gain a foothold and shut the door, essentially on the other grandparents,

02:56 - 46.662 and in that case, the maternal great grandparents had custody,

02:56 - 52.234 and they were opposing an award of standing to the other set of grandparents

02:56 - 57.607 and the child at that time, they argued, could not be substantially at risk

02:56 - 00.509 because they were involved and they were taking care of him.

02:57 - 03.479 And their benign presence protected the child.

02:57 - 06.315 But the Superior Court ruled that that was not sufficient.

02:57 - 11.220 If both parents are unavailable and unsure and or unwilling to care for a child,

02:57 - 15.758 and that child is therefore left at risk or and in a state of neglect,

02:57 - 20.029 then the standing can attach for both sets of grandparents.

02:57 - 23.232 And that's all we're arguing today, is that our clients

02:57 - 26.602 should have been allowed to proceed with standing under the cap

02:57 - 30.973 ruling under sub prong B, a 5420, 5324 counselor.

02:57 - 34.043 Yes, we stand here today who has custody of the child.

02:57 - 36.012 My clients have custody of the child, your honor.

02:57 - 39.015 The maternal grandparents still have custody of the child.

02:57 - 40.249 I'm sorry. How long?

02:57 - 44.153 Or they've had custody since 2021.

02:57 - 47.823 And the child has had no contact with the paternal grandmother

02:57 - 51.827 for three years and refuses to talk to her at this point.

02:57 - 56.232 Unfortunately, she refused to talk to her. Why?

02:57 - 59.001 Why has she had no contact for three years?

02:57 - 02.672 The child himself is refusing to contact her honor,

02:58 - 06.208 and when they have tried to make him go, he has threatened to commit suicide.

02:58 - 09.245 Our oldest child now, he turned 15 in January.

02:58 - 12.948 He is in therapy and he takes medication.

02:58 - 14.450 And he's doing very well in school now.

02:58 - 18.254 But he does not want a relationship with the paternal grandmother at this point.

02:58 - 21.190 And part of the problem is all of this litigation

02:58 - 24.060 and everything that has happened has helped to traumatize this child.

02:58 - 27.063 And our clients have been trying to get him all the help that they can.

02:58 - 28.731 And I would note,

02:58 - 29.432 I know we're not supposed

02:58 - 32.635 to argue the facts too much, but during the trial, paternal grandmother

02:58 - 35.404 at one point indicated she didn't believe in therapy.

02:58 - 39.108 And, she actually discontinued his medication when he was in her care.

02:58 - 45.014 So again, the trial judge is aware of all these facts, the new trial judge

02:58 - 49.618 that they have now because the old prior special judge was appointed, retired.

02:58 - 54.256 He has continued on with the case and allowed my clients to keep custody.

02:58 - 57.693 And there's an ongoing standing argument in front of the trial court right now

02:58 - 59.829 that went up on appeal and was quashed.

02:58 - 02.131 The grandmother has now the paternal grandmother herself out

02:59 - 03.899 three appeals in this case, Your honors.

02:59 - 05.401 So going back

02:59 - 09.405 to my argument, if I could, I would just like to note that

02:59 - 14.610 it is undisputed in this case that father is an uninvolved parent.

02:59 - 18.147 I mean, if he's been described as apathetic, he's been described

02:59 - 21.450 as exhibiting parental detachment from the child.

02:59 - 23.853 He barely participated in the proceedings.

02:59 - 26.589 And on questioning on the record, he stated

02:59 - 29.391 he didn't really know if he went to exercise custody of his child.

02:59 - 33.496 You see, the child, as far as I know, he hasn't seen him in the three years

02:59 - 35.030 as far as I know, Your Honor.

02:59 - 37.199 And prior to that, it was extremely sporadic.

02:59 - 39.001 And there was a period of time

02:59 - 42.705 during the litigation where I understand he barely spent any time with him,

02:59 - 44.373 and that might be disputed by the other side.

02:59 - 48.878 But I would say that father has both stated on the record

02:59 - 50.312 and exhibited through his behavior

02:59 - 53.482 a complete lack of willingness to act as a parent to this child.

02:59 - 58.187 And it was parental grandmother who tried to step in and take on that role for him.

02:59 - 01.290 But then she claimed that precluded my client's

03:00 - 04.326 from playing a role in the child's life, even though they try to live with them

03:00 - 06.462 since he was a baby.

03:00 - 10.366 And his pending these appeals has paternal grandmother

03:00 - 15.971 filed a petition under 5325 grandparent statute.

03:00 - 18.674 Paternal grandmother.

03:00 - 21.744 You're saying your client's mom's mom correct.

03:00 - 23.279 She's in custody.

03:00 - 26.282 Correct. Dad's mom has filed three appeals.

03:00 - 29.518 The question is, does this record also consist of.

03:00 - 32.221 While those appeals were pending,

03:00 - 35.191 grandmother father's mother sought some type

03:00 - 38.294 of partial physical custody pursuant to the grandparents statute.

03:00 - 41.263 5325 I don't want to speak out of term, but.

03:00 - 45.768 And I wasn't the trial attorney, but I am not aware that she filed under 53, 25.

03:00 - 48.671 But I will let my counsel speak to that.

03:00 - 49.238 Right.

03:00 - 50.973 I'm sorry I can't answer your question fully,

03:00 - 55.578 but the issue right before this court is that you don't lacks you lack standing,

03:00 - 01.417 that the child should be removed from you and given to the paternal despite

03:01 - 05.688 three years and three appeals, that's exactly what would happen, Your Honor.

03:01 - 09.625 And not only that, but my client's be stripped of their ability, potentially,

03:01 - 15.030 to go back into court and seek, shared or primary custody.

03:01 - 20.102 They would be reduced to only being able to go forward under 53, 25, ostensibly

03:01 - 24.506 depending on how future litigation goes over standing at the trial court level.

03:01 - 30.713 But, your honor, under 5325, a deceased parent doesn't give them the right to have

03:01 - 33.716 the level of involvement with this child that they've had all these years.

03:01 - 37.519 And if something happened to paternal grandmother, then my parents

03:01 - 39.121 excuse me mindset of grandparents

03:01 - 42.091 wouldn't be able to step in and say, oh, we should take this child.

03:01 - 45.661 The child would revert to father who has no interest in this child.

03:01 - 48.797 It has no real bond or relationship with him.

03:01 - 52.268 And that is a major concern of my clients.

03:01 - 54.770 And one of the reasons that they proceeded with this matter,

03:01 - 56.505 they just want what's best for their grandson.

03:01 - 59.642 So I'm sorry, I just share with us

03:02 - 02.878 the issue before us is the standing issue.

03:02 - 03.412 Exactly.

03:02 - 05.681 It's limited to just the standing issue, Your Honor.

03:02 - 07.716 So what's standing there?

03:02 - 09.718 Standing under the gap case, Your Honor?

03:02 - 12.788 And that should have been a considered and applied by the sphere court,

03:02 - 16.659 because under the cap case argument is essentially that one

03:02 - 21.931 set of grandparents cannot create a cloaking protection over this child

03:02 - 25.301 and therefore barred the other grandparents from coming into court.

03:02 - 30.105 The intent of the statute is to allow grandparents

03:02 - 33.108 who have this kind of involvement with the grandchild, to come in

03:02 - 35.878 and potentially play a role, and let the trial court decide

03:02 - 39.782 who should have what type of custody, but to bar them completely

03:02 - 43.519 and shut the door when under GAAP, they have an argument

03:02 - 46.255 that this child is at risk and is in a state of neglect.

03:02 - 49.558 Just because paternal grandmother is there, it doesn't mean he's not at risk.

03:02 - 53.228 Did they raise that again?

03:02 - 57.433 I mean, I think you may have attempted to answer this, but

03:02 - 01.737 did they raise, that argument before the trial court?

03:03 - 04.139 Not specifically, Your Honor. They did not.

03:03 - 07.142 And I think part of that is, as cases develop.

03:03 - 11.981 Well, I think if you take a very technical interpretation.

03:03 - 15.918 Yes, but I also think standing is fluid, as I stated in the gap

03:03 - 18.220 decision and prerequisite.

03:03 - 20.489 I mean, I mean,

03:03 - 22.358 technicalities are what we do.

03:03 - 24.760 I mean, standing is a prerequisite for custody.

03:03 - 26.795 And there's a good reason for that, right?

03:03 - 27.863 For parental rights.

03:03 - 30.766 And Troxel versus Granville and everything.

03:03 - 36.772 And they there were the first time, the first time your client's raised

03:03 - 40.876 this section subsection was in the Superior Court brief.

03:03 - 43.112 It wasn't ever raised before.

03:03 - 45.781 It was didn't look, you had in loco parentis.

03:03 - 48.183 There was language.

03:03 - 52.388 There was language at some point earlier that looked a lot like subsection

03:03 - 56.125 C, different subsection than you're at here.

03:03 - 01.830 I mean, if given they, they never asserted

03:04 - 05.768 this standing under this subsection,

03:04 - 07.503 why isn't it waived?

03:04 - 08.837 Why are we even here?

03:04 - 10.806 How can we even entertain this?

03:04 - 13.575 I don't it just be that we just invoke best interest?

03:04 - 17.746 Because if, you know, if we do that, then the deluge.

03:04 - 18.013 Right.

03:04 - 21.884 If if we can always say just best interest, then there's no bars anywhere.

03:04 - 24.153 And that's why I'm not arguing for best interest, your Honor.

03:04 - 30.092 I'm not what I'm arguing is that they raised 53, 24 generically.

03:04 - 33.429 They also argued a couple specific things at various times during the case,

03:04 - 35.764 as evidence developed when they first went into court,

03:04 - 38.133 it was because mother had committed suicide.

03:04 - 43.138 They knew father was on the periphery, but their concern at the time

03:04 - 47.309 was the child being in a state of lacking a parent because mom

03:04 - 50.312 committed suicide and dad was relatively uninvolved.

03:04 - 54.216 But as the case developed and it became paternal grandmother who stepped forward

03:04 - 58.554 and said, wait, I have a custody order which my clients knew nothing about.

03:04 - 00.889 I mean, when they first filed, they had no idea

03:05 - 03.225 there was this content order because it didn't exist.

03:05 - 05.461 It was it was done a month later. Let's discuss that.

03:05 - 09.765 But first of all, does father share any type of custody, legal custody?

03:05 - 11.633 Who has legal custody?

03:05 - 15.804 He was granted both the paternal grandmother and father,

03:05 - 19.508 in the final order of the trial court were granted

03:05 - 22.511 both some partial custody and some legal custody.

03:05 - 26.648 Yes, they have both legal custody as we stand today.

03:05 - 29.685 Does father have shared legal custody?

03:05 - 33.655 I believe there have been orders entered since.

03:05 - 36.692 And, Your Honor, but, I think he might.

03:05 - 38.360 I would have to. I'm not such

03:05 - 40.195 great.

03:05 - 42.231 I as far as I know, he does still have it.

03:05 - 44.700 He doesn't exercise it, though. He plays it.

03:05 - 46.902 But under the law, he still has legal custody.

03:05 - 50.939 So the issue now is, if we were hypothetically to side

03:05 - 53.942 with the paternal grandparents, find that you have no standing,

03:05 - 57.045 the child would have to be removed from your client

03:05 - 59.848 and given to father

03:05 - 04.052 because he's he's the only one standing except fathered an appeal.

03:06 - 05.888 The decision father only has partial custody,

03:06 - 07.990 so he can't go to father's primary.

03:06 - 10.993 His paternal grandmother who wants him is primary.

03:06 - 14.029 But I'm looking from this from a perspective.

03:06 - 16.231 If your client. If we.

03:06 - 19.768 If hypothetically, you lose your standing position

03:06 - 23.672 that you no longer have standing

03:06 - 26.074 to have primary physical custody of the child

03:06 - 30.145 because it has to revert back to the father, you no longer have custody,

03:06 - 32.481 but it can't revert back to father.

03:06 - 32.915 Your honor,

03:06 - 36.718 that the decision the underlying court right now is the father only has partial.

03:06 - 38.520 And he did not appeal his decision.

03:06 - 40.155 He did not challenge it in any way.

03:06 - 41.690 He's not a part of this appeal.

03:06 - 44.927 It's paternal grandmother who's saying I want primary

03:06 - 48.564 and the other maternal grandparents should be barred from proceeding

03:06 - 50.332 for any kind of shared or primary.

03:06 - 52.501 She wants them relegated to partial.

03:06 - 55.070 Father will remain partial and she will be primary.

03:06 - 56.972 That is the underlying case.

03:06 - 02.244 If we were to follow and find, you know, standing father and his mother could

03:07 - 05.314 coming with a modification

03:07 - 08.517 requesting joint physical and legal custody

03:07 - 11.954 and then mother could raise the child and live happily ever after

03:07 - 14.957 without your your grandparents participation

03:07 - 18.860 unless you file under 5325 grandparent statute.

03:07 - 21.630 Now, I don't know if that would be the best for the child,

03:07 - 24.866 but I'm trying to take back to the legal, logical extreme.

03:07 - 28.370 I mean, hypothetically, father could come into court subsequent

03:07 - 31.473 to this decision and file a modification.

03:07 - 34.810 He still has not, to my knowledge, filed anything with the trial court.

03:07 - 39.648 There is a there are activities occurring in the trial court level

03:07 - 40.782 that I'm not involved in,

03:07 - 44.486 but I know that there have been modifications filed by my client.

03:07 - 47.155 There have been the appeal taken, the quash.

03:07 - 49.358 There was a rule to show cause there was a whole bunch of activity.

03:07 - 50.659 Father took no part in it.

03:07 - 52.561 It is just grandparent versus grandparent.

03:07 - 55.297 But hypothetically, yes, Your honor, that could happen.

03:07 - 58.300 Father actually still has partial legal custody.

03:07 - 00.969 So does he need to be doing anything?

03:08 - 01.770 Well, that's the point.

03:08 - 05.907 He doesn't want to do anything because he has what little he can

03:08 - 08.010 sort of hang his hat on, but he doesn't exercise what?

03:08 - 12.180 He has his father, in a custody sense, in name only.

03:08 - 14.316 He is the biological father, but.

03:08 - 16.818 And he has it on paper that he has some custody rights,

03:08 - 18.387 but he doesn't exercise them.

03:08 - 21.390 And the problem is that is harmful to the child.

03:08 - 25.060 The child suffers because not only did he lose his mother to suicide,

03:08 - 26.862 but she's acutely aware of.

03:08 - 29.998 But his father has zero interest in him and has moved on

03:08 - 33.001 and had three more children with a new woman who he is involved with.

03:08 - 37.506 And so the psychological effect is something that judge versus

03:08 - 40.676 highlighting in her dissent, because substantial risk

03:08 - 43.679 or neglect doesn't just come from physical,

03:08 - 47.482 it can, as she stated, it can transcend the physical maltreatment.

03:08 - 51.153 It can be emotional and mental distress that was never raised.

03:08 - 54.156 But by what? By what court order?

03:08 - 59.494 Are your clients raising this child and have been for the past three years?

03:08 - 00.329 Three years?

03:09 - 03.365 There was a subsequent court order entered at the trial court

03:09 - 06.468 level, three granting them primary custody.

03:09 - 10.639 Your honor, and also granting them standing in new standing in the case

03:09 - 11.540 going forward.

03:09 - 14.543 And that was what was the basis for the paternal grandmother's

03:09 - 18.046 third appeal, which was quashed because of this appeal.

03:09 - 21.783 And so we expect I mean,

03:09 - 23.285 there's a

03:09 - 27.155 court order that superseded the order that we're looking at.

03:09 - 28.056 Is that what you're saying?

03:09 - 31.593 And we're here today because the litigation in this case

03:09 - 32.928 seems to be never ending.

03:09 - 38.967 And I think if my clients are denied standing today, what's going to happen

03:09 - 42.337 is you're going to see a flood of new litigation again in the trial court

03:09 - 46.141 where paternal grandmother goes in and says, well, I'm going to take this child.

03:09 - 47.876 I'm going to have primary custody.

03:09 - 51.146 Apparently, you're a flood of litigation in the trial court

03:09 - 54.182 only because I

03:09 - 57.452 this is difficult to say, but I think because paternal

03:09 - 03.458 because paternal grandmother is taking a very technical stance in this case.

03:10 - 06.862 And all I can say is that if I represented her,

03:10 - 09.030 I would not be advising this course of action

03:10 - 11.800 and I would have standards been waived. It's been waived.

03:10 - 16.538 It doesn't matter if the flood of litigation ensues or the sky falls.

03:10 - 19.875 I mean, no standing, no standing waiver waiver.

03:10 - 21.076 It doesn't matter.

03:10 - 21.977 It you know,

03:10 - 26.481 there are all kinds of sympathetic child custody cases in Pennsylvania.

03:10 - 27.716 Yours isn't the only one.

03:10 - 28.917 I understand, Your Honor,

03:10 - 32.187 but I can I do reiterate, I don't think they fully waive standing.

03:10 - 34.423 I think they raise standing under 5324.

03:10 - 36.892 And that includes all three prongs.

03:10 - 41.630 And that a subsequent trial judge found standing.

03:10 - 43.532 And if so, correct.

03:10 - 46.401 When was that and what date was that? Where?

03:10 - 49.337 Your Honor, I have so.

03:10 - 52.707 And I said prior to the appeal, I don't know

03:10 - 56.545 what sort of I mean.

03:10 - 56.778 Right.

03:10 - 59.781 But there was a new order.

03:11 - 19.668 Okay.

03:11 - 22.671 It says.

03:11 - 35.851 I'm reading the order

03:11 - 40.422 for rule show clause and where it was quashed in spirit court, and I apologize.

03:11 - 41.857 I'm not the attorney of record.

03:11 - 44.860 That's Todd Spivak.

03:11 - 48.930 I don't understand how all these proceedings are going on

03:11 - 52.801 in the trial court level when this is on appeal on this issue,

03:11 - 00.242 I believe they, started to proceed again when the paternal grandmother

03:12 - 03.144 tried to enforce the decision of the Superior Court.

03:12 - 06.515 She wanted the child to return into her care,

03:12 - 10.218 and she sent the state police to retrieve the child

03:12 - 13.555 because he was refusing to go and the child,

03:12 - 17.659 my understanding, is a child physically broke away from the police, ran away,

03:12 - 20.662 and then told them he would kill himself if they made him go.

03:12 - 23.632 So it was a very volatile situation.

03:12 - 26.101 And grandmother, if I'm not misstating the facts,

03:12 - 29.104 then brought a petition with the trial court to enforce

03:12 - 33.008 my client's filed the modification and to establish new standing.

03:12 - 36.811 And that started a whole new round of the current

03:12 - 40.582 ongoing litigation that's in the trial court level. Wow.

03:12 - 44.753 Why are we what are we what what what are you asking us to do?

03:12 - 47.055 I mean, you're your client

03:12 - 49.691 has custody

03:12 - 52.694 under an order that we've never seen.

03:12 - 54.896 They do. But I'm not asking you to rule in that order.

03:12 - 55.864 What is going to happen?

03:12 - 01.703 No. If if they cannot proceed with the standing under 53, 24,

03:13 - 06.308 they run the risk that the barn door will be shut in their face, apparently.

03:13 - 10.011 But it before or for the first time before the trial court.

03:13 - 15.483 Or why did the trial judge moot the issue if you already ordered standing?

03:13 - 17.018 I'm confused. Yeah.

03:13 - 21.289 You can't sue for standing when the party has standing given by a judge

03:13 - 25.827 because the Superior Court decision said there was no standing and that was that.

03:13 - 29.331 That was the decision that the clients were operating under, that

03:13 - 34.336 the trial judges and finding of standing was legal error or abuse.

03:13 - 37.372 So the court order that was entered

03:13 - 41.409 in June of 2023 is the one

03:13 - 45.747 that was reversed by the Superior Court on April 26th of 2024.

03:13 - 47.716 That's why we're here today.

03:13 - 50.585 And so paternal grandmother takes the position at the trial level

03:13 - 52.654 that my clients don't have standing, because that was

03:13 - 55.123 the decision was to report on appeal to this court.

03:13 - 59.694 Therefore, because of the time that had gone by

03:13 - 02.697 and the fact that my clients continued to exercise custody,

03:14 - 06.001 there's new litigation about whether or not that created

03:14 - 09.604 a new type of set, a new standard for standing in the case.

03:14 - 12.674 How can that be when the case is pending before us?

03:14 - 16.645 I don't I can only tell you that the litigation is ongoing, Your Honor,

03:14 - 19.981 and that is why it was taken on appeal to the Superior Court,

03:14 - 22.450 and it was quashed because of this appeal pending.

03:14 - 25.453 The Superior Court would not rule on it until,

03:14 - 29.057 the trial judge who ruled previously

03:14 - 32.460 was Comen Tech, and he's the only one that

03:14 - 35.463 Lewis was the last when senior Judge

03:14 - 38.466 Lewis was.

03:14 - 42.704 I'm not sure this case is even properly before us at this point.

03:14 - 45.707 We may have been prominently, granted that counsel.

03:14 - 50.311 Let let me let me ask you to recap or tell me if I have this

03:14 - 53.415 if I understand this correctly, the trial court originally

03:14 - 56.985 the case that we are looking at, the trial court originally said

03:14 - 00.088 your clients do not have standing.

03:15 - 01.222 Correct? No.

03:15 - 05.060 The trial court granted standing under 53, 24, two and three.

03:15 - 07.429 Your clients had standing.

03:15 - 10.265 And the Superior Court reversed. Correct.

03:15 - 13.134 They they considered all three prongs.

03:15 - 14.803 They didn't find prong B, it was waived.

03:15 - 18.606 They considered it and said it didn't apply, but they didn't say it was waived.

03:15 - 21.509 And then they denied standing under 5324.

03:15 - 25.847 And so they had to be remanded to consider standing only under 5325.

03:15 - 30.618 And therefore we filed the appeal because my clients feel they did preserve

03:15 - 34.489 standing and the claim for standing, and they feel that the trial court

03:15 - 38.760 was correct and that the law in the case should follow

03:15 - 42.764 the prior considerations of the gap case at the spirit court.

03:15 - 46.201 Or you decided and really, we're just springboard in a little bit off

03:15 - 49.170 of judge Bo's dissent because a little bit a lot

03:15 - 54.175 because after I mean, I read the record in this case the first time

03:15 - 58.079 that this thought crossed my mind was when I read Judge Bo's dissent.

03:15 - 01.015 So it's not spring boarding a little bit.

03:16 - 01.950 It's a lot.

03:16 - 05.153 I understand, Your Honor, and I appreciate your input.

03:16 - 09.224 All I can tell you is that as an appellate trial

03:16 - 12.360 or as an appellate attorney, I want to argue the law.

03:16 - 15.530 I can't change the procedural history, which was

03:16 - 18.700 it was it was very convoluted.

03:16 - 20.101 Let me ask you this question.

03:16 - 24.272 Was there any point in time

03:16 - 27.842 that the trial court's inordinate

03:16 - 33.047 delay in this case resulted in a change of circumstances,

03:16 - 36.484 that changed the,

03:16 - 40.421 possible ruling on your client's standing?

03:16 - 43.091 I mean, I don't know why the trial court found

03:16 - 46.094 that your client had standing, actually, because I think

03:16 - 50.231 I think the superior court majority pretty clearly set forth what was raised.

03:16 - 54.502 And I, so, so if the trial court had acted

03:16 - 57.539 any more expeditiously in this matter

03:16 - 01.342 with the outcome at any point along the way, have been different.

03:17 - 05.880 I mean, I as I read this, I just really wondered

03:17 - 06.981 whether or not there was

03:17 - 10.952 some type of breakdown in the court system that caused this morass.

03:17 - 13.488 Right? I actually believe the answer is yes, Your Honor.

03:17 - 16.591 And I think this court even touched on that in their majority opinion,

03:17 - 20.395 they talk about the fact that if the trial judge had held a standing hearing

03:17 - 22.463 in the beginning of the case, that should have happened

03:17 - 24.032 as we do in Allegheny County.

03:17 - 27.302 Then they could have ruled on the issue

03:17 - 31.272 of whether they met prong C for the 12 months

03:17 - 36.711 and the six filing within six months, because arguably they did meet that prong.

03:17 - 39.714 Depending on your interpretation of whether mother and the child

03:17 - 40.682 lived with the grandparents.

03:17 - 42.450 Now, the Superior Court

03:17 - 45.687 assigned a very hyper technical definition of living together.

03:17 - 49.791 But and they ruled that they had not met the 12 months, six months prior.

03:17 - 53.494 But they did mention that they might have qualified

03:17 - 56.497 under 53, 25,

03:17 - 00.602 for more custody, and that even if mother had then committed suicide,

03:18 - 03.805 they would have had to, so to speak, their foot in the door.

03:18 - 07.542 And I do think the procedural deficiencies in the case

03:18 - 10.645 led to a lot of what we're dealing with today.

03:18 - 13.047 There were innumerable delays.

03:18 - 16.117 I wouldn't say the trial court was responsible for all of them.

03:18 - 19.120 There were a lot of issues of continuances.

03:18 - 22.523 There was the first appeal that was filed that created delay at one point

03:18 - 26.494 prior to the appeal, I think paternal grandmother, was acquiring new counsel,

03:18 - 30.398 and there were some delays in scheduling because of calendar, conflicts.

03:18 - 32.133 And that's all on the record.

03:18 - 37.005 But what ended up happening was you had a three year

03:18 - 40.375 period of time with four interim order

03:18 - 43.645 screening entered in that period of time before a final order was entered

03:18 - 47.882 and and all of the interim orders my clients either had shared

03:18 - 52.186 with paternal grandmother or primary physical custody and then shared legal.

03:18 - 54.722 And then father was always on the periphery,

03:18 - 57.992 just getting small bits here and there of partial custody.

03:18 - 59.928 And I think that

03:19 - 03.831 the impact on this case is,

03:19 - 06.801 you know, we can't turn back the clock, we can't change the history.

03:19 - 09.804 But I do think despite some

03:19 - 14.142 come validated pleadings and convoluted, procedures

03:19 - 17.679 that really should have been more streamlined by the trial court,

03:19 - 23.084 my clients did raise the argument of standing at three 4324, and grandmother

03:19 - 26.154 testified to it, as did her counsel, raising it on the record

03:19 - 29.624 in the hearing that they went to,

03:19 - 31.526 excuse me on

03:19 - 36.297 May 14th, 2021, when it was acknowledged, standing had to be addressed.

03:19 - 38.533 That was in the record on page 64.

03:19 - 39.434 And maternal grandmother

03:19 - 43.571 testified that she and her husband qualified for standing under 5324.

03:19 - 46.307 And that's in the record on page 122.

03:19 - 50.845 Now, again, did they specifically argue the gap case?

03:19 - 51.646 No, they did not.

03:19 - 54.449 That did not come up until it went on on appeal.

03:19 - 57.752 Did they specifically argue prong B? No.

03:19 - 00.088 At that time they didn't on the record.

03:20 - 04.993 But the judge did find that they had standing under prong three of 5324.

03:20 - 07.061 And that's how we ended up on appeal.

03:20 - 08.997 And I do

03:20 - 12.767 think the matter is an important one,

03:20 - 17.705 because it goes to this issue of, are we creating a race to the courthouse?

03:20 - 21.776 If a parent is abdicating their parental responsibility,

03:20 - 26.214 and then they know that the other grandparents are likely to come into court

03:20 - 30.284 to hand the child off to their parent and say, well, you take care of them.

03:20 - 33.421 And then that grandparent can say, well, I'm taking care of them.

03:20 - 34.889 They're perfectly safe.

03:20 - 37.892 And so now the other grandparents can't get in the door.

03:20 - 41.729 Well, just handing off, I mean, there was a consent order, right?

03:20 - 43.931 Well that's debatable.

03:20 - 47.969 Our clients took the position on the record that that was manipulated.

03:20 - 50.204 Mother was in a mental health crisis at the time.

03:20 - 53.307 They had tried to have her committed about a month.

03:20 - 54.809 My clients have turned.

03:20 - 58.112 The maternal grandparents tried to have mother get help or get committed

03:20 - 03.117 in May of 2020 because she was, indicating suicidal ideation.

03:21 - 05.820 She resisted that effort.

03:21 - 07.155 She left their home.

03:21 - 10.958 Her grandmother said, come live with me.

03:21 - 14.162 Our clients filed a case in July.

03:21 - 17.432 The petitioner intervene because there's a preexisting custody case

03:21 - 20.868 on the record from mother and father from way back in 2011,

03:21 - 23.871 and paternal grandmother

03:21 - 27.208 surreptitiously had this consent order drawn up.

03:21 - 31.379 And her husband's an attorney, and it was drawn up

03:21 - 34.082 in mother who was in a mental health crisis, signed it.

03:21 - 37.952 But later a mother filed with the court to, ask that

03:21 - 39.654 that be basically circumvented.

03:21 - 42.890 She was saying right before she committed suicide, she was alleging

03:21 - 45.960 that paternal grandmother was resisting all efforts

03:21 - 49.530 for mother to see the child was keeping the child away from her,

03:21 - 52.733 and she wanted that order vacated or changed.

03:21 - 56.604 Unfortunately, her mental health struggles overtook her ability

03:21 - 59.674 to proceed, and she committed suicide about within a month.

03:22 - 03.711 Don't you think that if we're going to wade into a highly, highly,

03:22 - 09.784 highly idiosyncratic and irregular and convoluted, as somebody said, case

03:22 - 13.688 like this, we ought to do so in a case where there's preservation,

03:22 - 17.258 and no, no appearance that standing has been waived.

03:22 - 19.093 I mean,

03:22 - 22.029 in an ideal world, would everyone raise everything perfectly?

03:22 - 25.900 Your honor, I suppose that's true, but it doesn't happen in family law that way.

03:22 - 29.070 On many occasions, there's very often changing facts,

03:22 - 31.839 and people don't know all the facts when they first file

03:22 - 33.641 and they run into court with their attorney

03:22 - 35.510 and the attorneys trying to get them relief,

03:22 - 38.513 because a child is in distress and a child is at risk.

03:22 - 41.048 But they did raise their standing issues.

03:22 - 44.051 They argued them versus rigorously throughout the case.

03:22 - 47.388 They asked the court to deal with it, as did paternal grandmother.

03:22 - 50.024 Both parties were saying, we need to deal with standing.

03:22 - 53.327 The trial court did not deal with it until the end of the case.

03:22 - 57.131 So that leaves us in a little bit of a mess, because we didn't

03:22 - 00.134 have that clear standing hearing in the beginning of the case,

03:23 - 02.370 but I don't think my client should be punished for that.

03:23 - 03.704 Not only did me deal with

03:23 - 06.307 placing custody in

03:23 - 09.510 your clients throughout that period of time, he did.

03:23 - 15.183 After extensive status conferences, hearings, testimony repeatedly. Yes.

03:23 - 17.852 And that was also after speaking to the child several times.

03:23 - 19.587 He involved a guardian ad litem.

03:23 - 23.691 He had guardian ad litem reports jumped right to best interests, right.

03:23 - 25.226 If he skipped standing, he.

03:23 - 27.328 Yes, he did as a trial judge.

03:23 - 29.297 He absolutely did. Yes.

03:23 - 30.631 But he did find it eventually.

03:23 - 32.133 Yes, Your Honor. Yes.

03:23 - 33.434 And I don't disagree.

03:23 - 36.604 It would have been better if it had been done in reverse, as we're supposed to do.

03:23 - 39.874 But unfortunately, Tania's going to ask the court to do things

03:23 - 42.777 the court doesn't always do what they're asked to do.

03:23 - 44.912 We can't force them to schedule a hearing.

03:23 - 48.482 As you heard near prior argument over whether you always get a hearing,

03:23 - 50.284 you don't always get a hearing from a judge.

03:23 - 55.590 So, everyone had to proceed as the best as they could under the circumstances.

03:23 - 57.692 And a lot of evidence is put in front of the trial court,

03:23 - 01.462 both as to their involvement with the child, the child's preference, etc.

03:24 - 05.666 but in terms of I just want to address one last thing.

03:24 - 07.735 If we're running out of time because I can see the questions

03:24 - 10.004 are winding down a little bit, but running out of time.

03:24 - 12.940 Okay, figure out what on earth to do with this.

03:24 - 17.245 So one last point is paternal grandmother argues in her brief that,

03:24 - 21.048 the fact that this was raised late in the game, the gap argument,

03:24 - 22.283 if you want to call it that,

03:24 - 25.052 she's saying that didn't give her a chance to really defend herself.

03:24 - 28.055 But the issue here is not paternal grandmother.

03:24 - 31.692 We're not here to attack paternal grandmother and her involvement

03:24 - 32.960 with the child.

03:24 - 35.763 All we're arguing is because father

03:24 - 39.900 was clearly not involved with the child, that he was still at risk.

03:24 - 42.737 He was still in a state of neglect, and therefore both grandparents

03:24 - 44.639 should have been given a chance to be heard.

03:24 - 46.307 They both raised standing.

03:24 - 47.508 They both should have been awarded

03:24 - 51.145 standing, and they both deserve to receive standing under the gap decision.

03:24 - 54.949 And paternal grandmother can't defend father.

03:24 - 58.953 She can't change the facts of what father did or what kind of parenting is or who

03:24 - 00.421 he is as a person.

03:25 - 05.026 She can only speak to her evidence and what she does, and she will be given

03:25 - 08.496 that opportunity in this case, as she has been from the very beginning.

03:25 - 11.666 So let's try that first.

03:25 - 13.301 If you were

03:25 - 17.071 asked what is the order provided in your favor, I'm asking you

03:25 - 20.875 to reverse the Superior Court's decision or in the alternative remand.

03:25 - 27.415 So that standing under 5324, specifically prong B can be addressed with the gap

03:25 - 30.985 case being, in the forefront of the,

03:25 - 34.588 consideration for the trial court.

03:25 - 36.691 Okay,

03:25 - 39.126 let's hear from,

03:25 - 42.063 counsel for.

03:25 - 44.598 This court.

03:25 - 45.466 Thank you, Your Honor.

03:25 - 47.702 May it please the court?

03:25 - 48.669 My name is Teri.

03:25 - 51.439 Desk poi and I represent the appellee.

03:25 - 54.442 No, there's some confusion about appellee versus appellees.

03:25 - 59.747 I would like to also indicate my 40 years of practice.

03:25 - 02.049 Lost my first time arguing before this panel.

03:26 - 04.285 So I really appreciate the opportunity.

03:26 - 07.922 And I've considered to be an extreme honor and a highlight of my career.

03:26 - 12.526 Nine days ago, by the way, I was at this very podium

03:26 - 15.763 arguing standing of grandparents rights case as well.

03:26 - 17.798 So this is a very hot topic.

03:26 - 21.869 In any event,

03:26 - 25.406 as you can see, this case is full of,

03:26 - 30.111 confusing facts, confusing law, confusing procedures.

03:26 - 34.081 And I think the best thing I can do

03:26 - 37.118 for this panel is to try to make it

03:26 - 41.689 simple as I can without losing track of what's relevant.

03:26 - 44.892 Because I think,

03:26 - 47.228 I really even preparing this

03:26 - 52.333 case, I found myself going back over transcripts, fact,

03:26 - 55.536 the pleadings that were filed, the the briefs and everything,

03:26 - 58.873 even though I under my appearance in October of 2021.

03:26 - 03.844 So I wasn't involved from day one, but what what I'd like to

03:27 - 07.815 indicate is that is that what's been alleged here

03:27 - 11.819 is that the Superior Court made a mistake

03:27 - 16.090 and, should have analyzed this issue of standing

03:27 - 20.227 by using the the gap case versus J.M.W.

03:27 - 23.063 and analyzing

03:27 - 27.735 23 PACs, section 3520 43I capital B.

03:27 - 30.771 Perhaps

03:27 - 33.974 the best place to start to to try to simplify this

03:27 - 37.912 instead of getting caught up in if I start talking about facts today,

03:27 - 43.050 if, with all due respect, we won't be done until tomorrow.

03:27 - 44.718 I mean, there's just the facts

03:27 - 47.721 go different ways and there's reasons for everything.

03:27 - 53.694 And, but but to get a little bit of a glean of the facts here

03:27 - 57.965 that the child was born out of wedlock and the mother was in high school,

03:27 - 02.169 and the father was only, I believe, 18 or 19 years of age

03:28 - 04.371 and was going to trade school.

03:28 - 07.174 And he wasn't even made aware of the child's birth.

03:28 - 09.510 I didn't know he was a dad until the child was about six months.

03:28 - 12.880 So it started off on the wrong foot and there was contention from day one.

03:28 - 15.616 But if I could just say all you need to do is pull the docket.

03:28 - 18.118 If you think dad wasn't interested and of course, I represent,

03:28 - 21.088 his mom, basically.

03:28 - 24.892 But if you check the docket and you can see the efforts this young man

03:28 - 27.294 made to try to be a part of this child's life,

03:28 - 30.531 he grew frustrated over time because of things that happened.

03:28 - 31.832 I give one example.

03:28 - 33.400 He showed up for a custody trial.

03:28 - 36.170 Guess who didn't show up? His lawyer.

03:28 - 38.372 And, it really put him in a

03:28 - 41.809 in a difficult state of mind, I thought I screwed around.

03:28 - 46.981 I understand this, so we're here because your client's

03:28 - 52.987 father and mother is challenging the standing of mother.

03:28 - 55.990 Father. Correct? Correct.

03:28 - 59.260 And that's based upon the fact

03:28 - 04.598 that mother's mother is arguing she has standing here.

03:29 - 08.602 So. Two 2324 three

03:29 - 11.872 so three for the father, substantial

03:29 - 18.045 parental you and for all grapple you pretty fast, correct?

03:29 - 19.713 That's correct. Now we.

03:29 - 23.684 Have your mother.

03:29 - 28.289 Her paternal grandmother has standing there challenging this,

03:29 - 32.493 considering it's a frontal attack on her father

03:29 - 36.297 who you say is ready, willing and able to participate.

03:29 - 38.766 I'm confused as to that. Okay.

03:29 - 42.603 And with all due respect, judge and I, once again, I respect the fact that,

03:29 - 46.340 it's hard for me to even go back over all these facts.

03:29 - 49.376 But in August of 2021, I believe it was,

03:29 - 54.481 the mother, father and paternal grandmother

03:29 - 57.685 in order into a custody consent order, that was the one that Attorney Calderwood

03:29 - 00.888 had indicated that maternal grandparent weren't aware of.

03:30 - 04.825 And that was that was done at the time frame, quite frankly.

03:30 - 05.359 And once again, I'm

03:30 - 07.561 trying to stay away from facts because once again, we could

03:30 - 09.964 we can go down a little bit more when that happens.

03:30 - 13.167 Did mother have any legal custody of the child at that moment,

03:30 - 16.904 when father decided to enter into a custody agreement with his parents?

03:30 - 18.539 Right.

03:30 - 21.542 With with mother, natural mother and the mother?

03:30 - 23.711 Yes, yes, yes.

03:30 - 26.347 And if I could say one thing,

03:30 - 28.749 some pushback I was getting last week whenever I was argue

03:30 - 32.686 in favor of a grandmother in a in the standing case, was that,

03:30 - 36.090 well, really realistically, the legislature seems to have,

03:30 - 40.294 maybe resorted to a policy.

03:30 - 43.697 That's the what the parents want kind of governs first.

03:30 - 44.698 Okay.

03:30 - 47.701 In in that case, the make a long story short,

03:30 - 50.904 my my my client was the grandma.

03:30 - 53.941 She had five years of time with the child and her daughter turned against her.

03:30 - 55.976 And so the enemy of my enemy became my friend.

03:30 - 58.245 So they both said no. So my client was out of the picture.

03:30 - 59.513 And so I don't want to get into that.

03:30 - 02.650 We're not arguing that case, but to maybe carry that over a little bit

03:31 - 06.253 is that, you know, to really show what the intention was when

03:31 - 09.189 mom at that time was in strife with her mom

03:31 - 14.628 because her mom was supporting her mom's second, or her husband

03:31 - 17.698 who was who she fought a protection abuse against, and she didn't want.

03:31 - 22.069 The maternal grandma did not want, mom to leave him.

03:31 - 24.571 Okay, so that was the the argument there.

03:31 - 27.574 And so, you know, to try to clarify a little bit.

03:31 - 30.978 And so when it came to cutting time, let's say,

03:31 - 35.449 and, you know, we have two parents who then felt that among everybody,

03:31 - 38.519 the best way to handle this situation and have a consent order

03:31 - 42.923 would be basically a consent order that had custody between Natural mom,

03:31 - 46.527 natural Dad and his mom, shared

03:31 - 51.231 on a week about basis, basically, okay for us to find understand, stand

03:31 - 56.437 opposing counsel is this fight that consent between the court

03:31 - 01.875 a trial judge independently found for

03:32 - 05.713 maternal grandmother found by.

03:32 - 11.452 The explanation found standing

03:32 - 14.688 and gave maternal grandparents custody

03:32 - 17.591 versus legal custody.

03:32 - 20.494 But that was after mother committed suicide.

03:32 - 23.197 Yes, yes. Okay, so here's what happened.

03:32 - 23.530 Once again,

03:32 - 27.367 I'm trying to make this as simple as I can because it's not an easy thing to do.

03:32 - 31.672 What what had happened then?

03:32 - 33.941 Maternal grandparents

03:32 - 37.544 started off by filing a a petition

03:32 - 41.682 that they filed three separate petitions that happened,

03:32 - 45.786 whenever we, whenever the child was living with my clients, by the way,

03:32 - 50.824 that the child began residing with the paternal grandparents in March of 20.

03:32 - 54.995 And, and, quite frankly, the best academic year

03:32 - 58.332 and a half that this child ever had was the March 20th, the tail

03:32 - 04.238 end of the 2019 19 to 2019, 2020 year and then 20 2221, where

03:33 - 07.841 the child was under the, the guidance of the paternal grandparents and grandma.

03:33 - 11.011 And she actually whenever that was the year

03:33 - 13.247 whenever a lot of schools had the homebound programs

03:33 - 15.783 and she was teaching the child and he did very well.

03:33 - 18.786 He had always and these and parenthetically,

03:33 - 21.855 we had a review conference last year, I believe it was

03:33 - 24.892 and he was failing under the maternal maternal grandparents.

03:33 - 26.627 He was they were having,

03:33 - 31.465 truancy citations issued against maternal grandparents.

03:33 - 34.301 And he was he couldn't cope with school anymore

03:33 - 36.270 when he claimed he wanted to go back to that school.

03:33 - 40.073 When Tyrone and he was having extreme behavioral problems.

03:33 - 43.710 And so all that went through the trauma caused by his grandparents

03:33 - 46.713 and the it's hard to say, judge, but the point

03:33 - 49.616 but but the point I'm trying to make is that his the best year of his life

03:33 - 51.118 was years spent with the paternal grandparents.

03:33 - 54.121 But the record tried to.

03:33 - 57.491 Well, but that one.

03:33 - 00.494 No, that was after that was after he's taken them I get okay.

03:34 - 02.029 You're trying to.

03:34 - 02.362 Okay.

03:34 - 05.265 What what I'm saying is to saying that the spirit court, they were correct.

03:34 - 07.201 Okay. Because here's why.

03:34 - 11.738 If you look at the pleadings, maternal grandparents filed three separate

03:34 - 17.010 pleadings that they try to sort of weave about and, and get standing somehow

03:34 - 21.481 the first pleading was dealing with there was some emergency petition

03:34 - 23.116 that they filed.

03:34 - 26.486 That they were asking that a guardian ad litem be be appointed,

03:34 - 28.288 and they wanted to be part of the case.

03:34 - 31.959 They didn't cite one statutory provision as far as how

03:34 - 33.660 they would have standing at that time.

03:34 - 35.762 When they filed that first petition,

03:34 - 38.532 the child was actually living at my client's residence.

03:34 - 39.833 Okay.

03:34 - 42.836 So was that challenged by your client?

03:34 - 45.639 Well, what happened was that was one of the three.

03:34 - 45.906 They didn't

03:34 - 48.175 they didn't have any proceedings until what happened

03:34 - 49.776 was they showed up at the first proceeding.

03:34 - 50.811 I'll get to that in a minute.

03:34 - 54.348 Because the first proceeding that they had would have been at the tail end

03:34 - 58.218 of the year, that the school year that the child spent with

03:34 - 01.421 my clients, that would have been the 2022, 2021 school year.

03:35 - 06.360 So in May of 2021, they had the first proceeding

03:35 - 10.497 before the judge Clement, who since, retired.

03:35 - 12.933 In any event,

03:35 - 16.136 at that time, just before the hearing, there was a second pleading

03:35 - 19.239 that was filed where they were asking for some form of standing.

03:35 - 22.042 They were oddly,

03:35 - 26.113 the maternal grandparents attorney, they changed, maternal grandparents

03:35 - 29.883 counsel somewhere in in the spring of 2021, I believe it was.

03:35 - 33.086 But the second, the second, petition,

03:35 - 36.590 no mention of standing third petition was a petition.

03:35 - 38.358 The complaint to to change.

03:35 - 40.394 Change the custody order.

03:35 - 42.996 And what they did was they added their names, the caption

03:35 - 47.334 as plaintiffs changed around the names of the other parties, never been

03:35 - 50.904 a ruling on standing okay on standing know

03:35 - 54.641 my my, review of the record indicates

03:35 - 58.712 that in their June 2020 pleading,

03:35 - 02.316 they only cited in local parentheses.

03:36 - 02.883 Correct.

03:36 - 06.954 And then in May 2021, in their custody complaint,

03:36 - 10.557 they failed to cite any subsection at all.

03:36 - 15.062 But they used language that mirrors the language in subsection C,

03:36 - 19.266 and then that in then finally,

03:36 - 24.671 at on the trial date in July of 2022,

03:36 - 27.841 they argued, they argued in local

03:36 - 32.913 parents and subsection C, and in all three of these instances,

03:36 - 39.319 I saw no invocation of subsection B.

03:36 - 41.488 What is it?

03:36 - 43.890 3B33B. That's correct.

03:36 - 44.591 That's correct.

03:36 - 45.325 Am I correct?

03:36 - 46.860 You are correct, judge.

03:36 - 48.795 You're not waiving the waiver or.

03:36 - 50.397 No. No.

03:36 - 53.400 Why why doesn't this case just get it?

03:36 - 54.134 It should be.