00:00 - Well good morning everybody, and welcome

00:03 - to Commonwealth Court on bank arguments.

00:06 - In addition to those of you here in the courtroom, we welcome as well

00:10 - those who are watching the live stream today

00:14 - on the Commonwealth Court's YouTube channel

00:17 - and those who are watching the broadcast on the Pennsylvania cable network.

00:21 - I want to thank PCN for their recording and later

00:24 - broadcasting of our on bank arguments, which they have been doing for many years.

00:30 - When you watch on PCN, you will also see an introduction to each case

00:36 - presented by attorneys in the Court's Office of Chief Legal Counsel.

00:41 - I want to thank today's presenters Sam Ickes,

00:45 - Danielle Pontus and Kobi Miller

00:49 - are on bank.

00:50 - Arguments are 30 minutes with 15 minutes per side, not per litigant.

00:56 - If more than one attorney will be arguing, please

00:59 - allocate your time and advise us before you begin.

01:03 - Petitioners and appellants, please advise

01:05 - if you wish to reserve rebuttal time.

01:08 - We know that 15 minutes is not a lot of time to discuss a case

01:12 - that is so important to your client and to you.

01:16 - However, we have spent considerable time reviewing the record,

01:20 - the briefs, the cases you stated and understanding your arguments.

01:25 - So please use your time wisely.

01:27 - Jump right into your arguments.

01:29 - We look forward to hearing them.

01:32 - Hello and welcome to the Commonwealth Court of Pennsylvania's

01:35 - May en banc session.

01:37 - My name is Sam Agus, and I'm joined by my colleagues in the Commonwealth

01:40 - Court's Office of Chief Legal Counsel Kobie Miller

01:43 - and Danielle Nabeel Pontus.

01:46 - The term on bonk is French for on the bench,

01:49 - and refers to a special procedure where a panel of seven

01:52 - Commonwealth court judges hears argument on cases that the court believes

01:56 - implicate complex or important legal issues.

02:00 - Today, the court will hear three such unbound cases.

02:04 - Colby, Danielle and I will present a brief summary of each on bond case,

02:08 - followed by the broadcast of the oral argument thereon.

02:12 - With that, let's jump into the first introduction.

02:16 - In our first case, appellant Williamtown submitted a right to no law

02:20 - request in July of 2022 to the Elections Division of Allegheny County, seeking

02:26 - all official mail in and absentee ballots cast in the 2022 primary election.

02:32 - He also sought so-called certified county scans

02:35 - and to be allowed access to the original records, circuit,

02:38 - photograph or copy of the records under supervision.

02:42 - Upon receipt of the request, the county informed

02:45 - appellant that it was extending its time to respond by 30 days in August of 2022.

02:51 - The county denied appellant's request in a letter

02:54 - dated July 27th, 2022.

02:56 - The reason provided for the denial was that the right to know

02:59 - law does not apply to election related documents, because section three

03:03 - and eight of the Election Code governs access to those records.

03:07 - Upon receipt, appellant appealed the county's response

03:10 - to the Office of Open Records, which we will refer to as the lower.

03:16 - On appeal.

03:16 - Before the offer, the county explained that appellant's request for the records

03:20 - could not be granted under section 2648 of the election code because the request

03:25 - is for contents of ballot boxes which are exempted from disclosure.

03:30 - The county consider the requested ballots to be contents of a ballot box

03:33 - once electors return those ballots to the county.

03:37 - The county refuted appellant's claim that sections three one, four, 6.9

03:41 - and 3150.17 of the election code make the requested ballots public records,

03:46 - because those sections refer to the official ballots

03:48 - that the county must create, distribute, not the filled out

03:51 - ballots that are returned to the county by electors.

03:56 - The others final determination held that the mail and absentee ballots

04:00 - that were the subject of appellant's request are public records

04:03 - pursuant to section three, one four, 6.93 and 3150.

04:08 - 17A of the Election Code, which appellant has the right to access.

04:12 - However, LMR also held that the procedures related to the inspection

04:16 - and copying of the subject records is beyond its purview,

04:20 - but could not enforce the provisions related to access.

04:22 - It directed the county to provide

04:24 - appellant with access to the records in accordance with the Election Code.

04:28 - The county appealed

04:29 - the final determination to the Allegheny County Court of Common Pleas.

04:33 - It is decision that the trial court differentiated the definition

04:36 - of official ballots and the election code, and the references to ballots

04:40 - returned to the county by electors without the official designation.

04:45 - The court deferred to the county's interpretation of the statute,

04:48 - and held that the completed

04:49 - and returned ballots are not public records under the Election Code,

04:53 - due to the county's belief that access to the requested records was governed

04:57 - by the Election Code, which exempted the records from disclosure.

05:00 - The trial court reasoned that there was no presumption that the records for public

05:04 - that the county did not act in bad faith when it denied appellant access.

05:10 - On appeal to this court, appellant argues that the requested ballots

05:13 - remain official, whether in the hands of the elector

05:15 - or as returned to the county for processing.

05:18 - Otherwise, appellant argues, the returned ballots would be invalid

05:22 - because they are no longer official,

05:23 - and that there would be no obligation for the county to refuse disclosure.

05:27 - Appellant cites this court's recent decision and

05:30 - the Erie County Board of Elections in support of his argument.

05:34 - In addition, the appellant alleges that the trial court

05:36 - aired and deferring to the county's interpretation of the election code,

05:39 - and in holding that the county did not act in bad faith when it conducted no review

05:43 - for responsive records.

05:45 - The county

05:46 - argues that the trial court did not error and reversing the earlier

05:49 - final determination because the lawyer overreached

05:52 - when it ordered the county to provide the requested ballots to appellant.

05:56 - The county argues that the court had no jurisdiction

05:59 - to direct the county to do so, because the right to know law provisions

06:03 - do not apply to requests for documents subject to the Election Code.

06:07 - The county argues that this court's recent decisions on this topic

06:11 - have sown confusion across the Commonwealth

06:13 - regarding the applicability of the right to know law to request

06:17 - for documents made public or exempt from disclosure under the Election Code.

06:21 - As to the allegation of bad faith.

06:23 - The county contends that it had a reasonable good faith belief

06:26 - that the records appellant requested were not public records

06:29 - as such, and had no duty to search for nonpublic records that could do.

06:33 - It. Possessed.

06:34 - As to whether mail in and absentee ballots

06:37 - that have been returned to the county are public records,

06:39 - the county acknowledges the courts holding them private,

06:42 - which created a public right to view voted ballots, but states that

06:46 - until the Supreme Court hands down a final decision on the public nature

06:50 - of voted mail in and absentee ballots, or declines to hear appeals of probate

06:55 - and the other related election cases in Van Beber and Weaver.

06:59 - It must continue to assert that the official Mail-In

07:01 - ballots and section 3150.

07:04 - 17A of the code refers to blank and voted ballots.

07:08 - The Department of State filed an amicus brief wherein it asserts

07:11 - that the right to know law is wholly and applicable to this litigation,

07:15 - and as such, the law lacked jurisdiction to entertain appellants appeal

07:20 - or the authority to order the production of the election records.

07:24 - With that, let's listen to the argument.

07:27 - We also had issued an order

07:30 - granting an application for the Pennsylvania

07:34 - Department of State as amicus to

07:37 - share time of respondents.

07:42 - Okay.

07:44 - Your honor, I would like to reserve three minutes for rebuttal.

07:47 - Three minutes.

07:48 - You've got it, and it won't tell you precisely.

07:51 - I don't think on your, thing there

07:54 - how much time you have, but you'll notice the lights changing color.

07:57 - Thank you, Your Honor.

08:00 - Your honor, my name is Jeff Wilhelm.

08:01 - I'm an attorney with Reed Smith.

08:03 - I represent Ben Towne, who preceded, below in the trial court proceeding,

08:08 - by myself.

08:09 - The ACLU are here because this case presents very important issues,

08:14 - about the public trust and promoting the General Assembly's,

08:18 - intent on, getting,

08:24 - transparency within the election system.

08:26 - This promotes fundamental fairness.

08:28 - It promotes integrity, it promotes the public's interest in the system

08:33 - itself, specifically in this particular instance, the, my client, Mr.

08:38 - Towne, made a request for what I'm going to refer to as postal ballot.

08:42 - Though for the mail in, the official mail in.

08:44 - And the official absentee ballot in Allegheny for the 2022 primary.

08:49 - This request was made after certification of the results.

08:53 - That request

08:55 - ultimately was granted by the owner, and the Aura's determination was

09:00 - then reversed by the trial court in reversing the

09:03 - the owner's determination, the trial court concluded

09:07 - that, consistent with the county's arguments

09:11 - that the public record is a record that is sent to the voter, and the minute

09:17 - that the voter marks the ballot, it ceases to become a public record.

09:21 - Rather, it's then contents of the ballot box.

09:24 - We think that which is also inconsistent with our precedent.

09:28 - It is inconsistent with the precedent.

09:30 - Although at the time that the trial court made the initial ruling,

09:33 - that precedent had not issued at the time, the trial court made his opinion,

09:38 - that precedent had issued in that precedent was not addressed

09:41 - in that in second opinion, the October opinion.

09:45 - Having said that, Your Honor,

09:47 - I just want to talk a little bit about the postal ballots,

09:49 - because I don't think this is a close call.

09:51 - As the court has concluded in the official ballot, I think

09:55 - the official postal ballot is very, very clear under the code.

10:00 - The official posted ballot is a completed ballot has to be the completed ballot.

10:05 - And I'll tell you why.

10:07 - The postal ballot as a record here indicates, contains

10:11 - that are submitted to the voter upon application,

10:14 - certification and acceptance of that application.

10:17 - For items, one is the outside

10:20 - envelope that a voter would discard in order to actually vote.

10:24 - The second is a declaration envelope.

10:28 - The third is a secrecy envelope that is marked official ballot,

10:33 - and then the fourth is the ballot, which is also marked official ballot.

10:41 - It is very clear

10:42 - as you go through both sections,

10:46 - the section to the absentee and to the section to the mail in ballot

10:50 - that you make an application, the voter makes an application

10:55 - for the, official ballot.

10:59 - Upon certifying that the voter should be able to get the ballot,

11:03 - there is an obligation placed upon the county

11:06 - to mail the official ballot to the voter.

11:09 - Then there's a provision, Your Honor,

11:12 - to add.

11:15 - Section 3146.8

11:18 - that applies to both

11:22 - mail in and absentee ballots,

11:24 - and that requires the county

11:28 - to receive the official mail ballot

11:31 - and then to secure the official mail ballot in a lockbox

11:36 - to take the trial.

11:37 - Court's determination of the county's position would mean, fundamentally,

11:43 - that the ballot that goes to the voter

11:46 - ceases to be the official ballot when the voter marks in.

11:50 - That results in two absurdities.

11:53 - One is only official ballots can be counted.

11:57 - So the voter could not technically finish the act of voting.

12:02 - The second

12:03 - issue that would be a nullity, in which the county under oath agreed

12:08 - they actually do preserve the marked ballot.

12:13 - Is that the obligation of preservation?

12:16 - In the two sections we're talking about?

12:21 - Goes to only two of the four items

12:24 - that went to the voter.

12:29 - That is the

12:33 - declaration envelope,

12:35 - which there are very precise instructions about how the county must open

12:39 - the declaration envelope in such a way as to not,

12:45 - destroy or alter

12:46 - modify the declaration itself.

12:49 - And then the actual voted ballot.

12:52 - And I would point out to you your honors, I think it's in private.

12:55 - I believe the court, in concurring opinion indicated the problem,

13:01 - with reconciling the votes of in-person voting

13:06 - and the way that the state has handled

13:10 - absentee mail ballot voting.

13:13 - I don't think there's a conflict here.

13:16 - Is this matter different?

13:18 - Because what's being requested is not simply,

13:22 - a production or

13:23 - photocopies, but rather inspection and

13:27 - photographing in person.

13:30 - Is that a difference between

13:33 - private or private, as you say?

13:35 - That way.

13:36 - And this situation, I don't think so brief.

13:39 - There is a discussion about, you know, individuals viewing in person.

13:44 - My apologies, Your Honor.

13:46 - I don't think so.

13:47 - At the end of the day, I mean, this was a request made under the article.

13:51 - And I think the request is phrased

13:54 - in a way that gives the election division the option for that.

13:57 - So you are open to, photographic images

14:02 - or photocopies in response to the request.

14:05 - I believe in the way that the, request was phrased.

14:09 - That was open, Your honor.

14:10 - I can't say otherwise.

14:12 - Thank you.

14:15 - If I may, to what aspect

14:17 - of the Office of Open Records decision, do you take exception to,

14:22 - if any,

14:24 - the Office of Open Records exception on this appeal

14:27 - to the Court of Common Pleas decision, right?

14:31 - Yes. Your honor, we take that. Yes, Your Honor.

14:33 - And so, going below that to the O.

14:36 - Are there decision?

14:38 - Do you take any exception to their decision?

14:45 - I think they should have the right, Your Honor,

14:47 - under the article law to require, the production of the information.

14:52 - Yes. Your honor.

14:53 - Okay.

14:56 - In the event

14:57 - that the production in certain precincts

15:01 - would, disclose the.

15:08 - The actual identity of the voters.

15:11 - What do you say about that?

15:13 - Would that be an exception to the request?

15:17 - Your honor, I don't think that

15:19 - particular issue is in front of this court on a factual nature.

15:22 - So I don't know that we can get to that.

15:25 - I think making that argument is making an exception to assume the whole.

15:30 - And that was not the intent.

15:31 - The intent is to enforce what is in the General Assembly's

15:35 - clear and unequivocal statements,

15:37 - which they are public records. Although there is a

15:40 - constitutional protection to individuals to be able to vote

15:45 - in secret.

15:46 - Am I correct?

15:49 - Correct, Your honor, but I think at the end of the day,

15:52 - the way that you vindicate your constitutional right

15:56 - is that factual partner comes up and then it's

15:59 - either an eye supply challenge or it's a facial challenge,

16:02 - which I don't think is before this court

16:06 - properly and in this case, but could be in a future case.

16:10 - It could be, Your Honor. And then I'm going.

16:13 - I would concede that point.

16:15 - Can you address their argument that the right to know law

16:18 - doesn't apply here, that it's preempted by the election code?

16:22 - I disagree with that entirely.

16:25 - I think it's very clear that when you make a request

16:28 - under the precedent of the Pennsylvania Supreme Court,

16:31 - that request goes to the lower the OAA has the ability to interpret

16:37 - even state law in determining the request.

16:40 - And in addition to that, under the Hearst case,

16:44 - I believe there actually has to be a conflict.

16:47 - You know, the first thing that the court needs to do

16:49 - is grapple to determine whether or not the conflict.

16:53 - I think all the case law cited by,

16:56 - both the state and the county in this case

16:58 - involve situations in which the code itself and published

17:04 - regulations gave a request or gave the person who's requesting

17:08 - public inspection an avenue to get the documents

17:12 - and avenue to challenge the documents

17:15 - and avenue, to pay fees

17:20 - and some judicial recourse, which is not here.

17:22 - What the county has suggested

17:25 - is that

17:27 - mandamus would apply.

17:31 - The county is also saying that it is

17:34 - entitled to deference,

17:37 - deference.

17:38 - If deference is given to the county.

17:41 - Mandamus can't lie because mandamus only exists.

17:45 - If the act is ministerial,

17:47 - the minute you have deference, mandamus won't apply.

17:51 - So I would posit to you the remedy

17:53 - that the advance is illusory.

17:58 - You can certainly allow for these public records.

18:01 - So there's no there's no issue with an exemption here.

18:05 - If there is a issue that you're trying to seek, it would be on access.

18:09 - But on access the election code.

18:11 - Very simple.

18:13 - It's got to go to the election director, and the election director

18:15 - has to oversee it on the facts of this case.

18:18 - That is precisely what happened with with

18:21 - with respect to the response by the county.

18:23 - Now you're also asking for, us to find that

18:27 - the county was in bad faith in the way it responded to your request.

18:32 - The right to know law request in this case was made before

18:36 - our decision in, private,

18:39 - private, in our precedent.

18:42 - And since that hadn't been decided,

18:45 - at the time of the request and the county,

18:50 - could believe

18:51 - then that the voted Mail-In and absentee

18:54 - ballots were not publicly disclosed about

18:57 - how could they have acted in bad faith,

19:01 - your honor, I think they acted in bad faith,

19:04 - because I think it's an absolute strange position

19:06 - that they're taking, that these aren't

19:07 - public records based on the based on the express language of the code,

19:12 - but more importantly, the justification that was given after

19:16 - taking five days for an extension and then having 30 days

19:20 - to come up with an explanation, the justification was given that there was

19:25 - a 2021 email, which has nothing to do with postal ballots.

19:29 - And then there was a justification, given that there was an October 22nd email,

19:34 - which came post decision actually came post final determination.

19:39 - The OHA.

19:40 - I don't think it's right for a state actor or even a private actor

19:45 - to try to post hoc rationalization their position.

19:50 - They need to tell you why they took the termination in the first instance.

19:55 - Thank you.

19:55 - I see I'm out of time. You understand? Yes.

19:58 - Yeah. Okay.

19:58 - And you have your rebuttal.

20:12 - Good morning.

20:13 - I see, you know, I have ten minutes,

20:16 - and then I will be yielding my additional five minutes to the state.

20:20 - May it please the court?

20:21 - Your honor, my name is Maggie Shields, and I am here representing Allegheny County.

20:26 - Thank you for the invitation to come back and speak with you for a third time.

20:32 - About voted mail in ballots.

20:34 - However, I am hoping to focus on other issues today

20:37 - because I acknowledge the outcome of my last case before this court,

20:42 - and I acknowledge your decision in private.

20:45 - Those cases are both being held by our Supreme Court

20:48 - pending their decision in the case.

20:51 - So nothing that I have to say about ballots today will be as significant

20:56 - as what our Supreme Court says or doesn't say.

20:59 - Hopefully soon, as soon as possible.

21:01 - We would like counsel.

21:02 - What I would really like to address is your argument that this court

21:06 - has to give, you deference

21:10 - and entitled in, interpreting the election code.

21:14 - It's not your law.

21:15 - It's not your regulation, which is the standard,

21:18 - for the deference application.

21:20 - So can you address that, please?

21:23 - Certainly.

21:24 - I our position is that in a situation

21:28 - where there is a law that does not define a term,

21:33 - and the term is

21:36 - put in place and, used well, in this case, official mail in ballots,

21:41 - when the official mail in ballots are created and processed

21:45 - and managed by a, a department, in this case, the Department of State,

21:50 - and then their regulations

21:53 - flow down to the counties and the county board of elections.

21:57 - You know, there's

21:59 - there's no deference to be given to the General

22:01 - Assembly in a case where they don't define a term.

22:04 - So it's where you say it's not defined.

22:09 - So it's listed in section A, paragraph a

22:13 - of 3150.

22:15 - Then B talks about what is a record and they address the data.

22:19 - Once the electors completed mail and batters ballot is received

22:24 - by the board, I mean, it kind of identifies every part of the ballots.

22:29 - So it's hard to argue that it didn't mean the official mail in ballot,

22:35 - as distinguished from an application for a ballot or the envelope.

22:40 - They even specify in a the envelopes on which the executed declarations appear.

22:46 - All of that is specified as public records.

22:49 - I understand that I completely appreciate your position

22:54 - and the legal reasoning that many of you have used to achieve that position.

22:59 - However,

23:00 - we do continue to argue to the Supreme Court,

23:03 - and we do believe that every end of the term official Mail-In ballot,

23:08 - including where you just listed it, could be referring to the blank ballot.

23:14 - And when the General Assembly stated that official Mail-In ballots

23:18 - were public record and had to be compiled and turned over to a requester,

23:23 - what they meant was we always have to have a copy

23:27 - of every mail in ballot that is sent out to every precinct,

23:31 - so they'll be different depending on the precinct,

23:34 - and we always have to be able.

23:36 - Well, not always.

23:37 - I believe it's there is a time limit, but for the limit of time

23:41 - that we're required to keep the records, you

23:44 - we have to let someone see the mail in ballot that we sent out.

23:49 - That is our possession.

23:51 - I think it's true.

23:53 - I think the legislation bears it out.

23:56 - I think the legislative history, frankly, is silent.

24:00 - And I'm know I'm looking forward to getting to being given the opportunity

24:04 - to argue it.

24:05 - Along with my colleague from the Department of State before the Supreme Court.

24:10 - I truly respect this

24:11 - dissent, and I certainly don't know that we need to have these arguments

24:15 - again, judge McCullough.

24:16 - But, I mean, I'm I'm happy to answer any questions that you have.

24:19 - I think that in a situation where there is a term that's not defined,

24:24 - the departments that are in charge of administering

24:29 - the statute with the undefined term

24:32 - should be able to assert, listen, we know what this term means.

24:37 - We know how to work with this law, and we're working with this law in a way

24:41 - that's consistent with every provision of the law, and that is

24:45 - that Maine are up for work.

24:46 - So could you address Mr.

24:47 - Wilhelm's contention that you're arguing for deference now,

24:52 - but you're also arguing that the

24:55 - proper remedy here is mandamus?

24:59 - Those seem inconsistent because this,

25:03 - deference necessarily leads to discretion.

25:06 - And mandamus is a non-discretionary act.

25:09 - So could you address that, please?

25:12 - Yeah. Your honor, that is interesting.

25:14 - All I can tell you is that this litigant, Mr.

25:19 - Town, has several mandamus actions currently pending in our Court of Common

25:24 - Pleas.

25:24 - We're not attempting to get those tossed.

25:28 - We're litigating them.

25:30 - So. So is it your position, then,

25:34 - that you're not taking that as the output, that it's his selection of remedies

25:39 - that he's trying to cover the waterfront, if you will.

25:42 - We are correct.

25:43 - I mean, we we believe that mandamus is a correct remedy when someone believes

25:47 - that a law requires an action and that the county isn't taking it.

25:52 - And, I mean, I don't, I don't think, but like, but

25:56 - but it's a ministerial action, not a discretionary action.

25:59 - And here you're arguing we need deference.

26:02 - Yeah, but you can't say we need deference, but it's mandamus

26:05 - because they're mutually exclusive.

26:08 - Mandamus means no discretion.

26:11 - You got to do what you got to do once discretions in reduced mandamus goes away.

26:16 - Well, we don't believe that we have discretion regarding ballots.

26:20 - Our position is that the ballots are not public.

26:25 - No ballot is public.

26:27 - Voted.

26:28 - Mail in, voted in person, voted absentee.

26:31 - It doesn't matter.

26:32 - We don't believe that we have any discretion there.

26:33 - So to hone in and put a finer point in your request for deference

26:39 - to the county centers on the definition of mail in ballot.

26:44 - Absolutely. Special ballot.

26:45 - Okay. Correct.

26:47 - Your honor, we understand the case law about about this.

26:51 - However, I don't think it makes any sense to do a tortured reading of the code

26:57 - and just completely not give any credence to the individuals

27:02 - who are actually administering this law and, and, and what they have

27:05 - always thought that a term means, particularly when,

27:08 - as here, that definition works with the entire code.

27:12 - I'm not.

27:13 - You're saying she had time not also wanted.

27:19 - Okay.

27:19 - Okay. Whenever you're doing it, could you just.

27:21 - I'm not sure you want us.

27:23 - You want to interpret mail in ballot?

27:26 - No, we want to assert.

27:29 - And we have consistently that an official mail in ballot, as

27:33 - it is stated in the section 3031, 50, 17 that requires,

27:39 - you know, public disclosure of official mail in ballots.

27:42 - Our argument, to your honor,

27:45 - is that that is a blank ballot. So

27:49 - I, I mean, you know, you can defer to that argument or not.

27:52 - We have plenty of arguments that support it without needing deference,

27:57 - because we can't point to its use in the code in many, many places.

28:02 - So when we argue this before our Supreme Court

28:04 - and when I've argued it here, I haven't had to rely on deference.

28:07 - I mean, in my view, we have plenty of reasons

28:10 - why an official mail in ballot is a blank ballot that are not.

28:14 - Trust us. Who are the experts? Okay.

28:16 - If the office of open, if the O.R., had available to it

28:22 - the current state of our decisions.

28:25 - Do you think.

28:27 - Let me ask it a different way.

28:28 - Did they get it right back then, based on the current state of the law?

28:31 - Now, do you understand what I'm saying?

28:34 - Okay, yes, in a sense, they did.

28:36 - However,

28:39 - I our position is that the O.R.

28:41 - should never have had this case.

28:43 - But what the O.R.

28:43 - should have said was

28:45 - there are access provisions in the election code that govern

28:49 - these ballots, which we now know are public

28:51 - because of the Commonwealth Court's decision.

28:53 - And therefore, we are not going to order the county to do anything

28:57 - because we as the state created, the General Assembly created body.

29:02 - We have no idea if this requester is a qualified elector in the county.

29:07 - You know, we can't arrange for him to go to the Board of Elections

29:12 - and look at the ballots in the presence of other people that work for the board

29:16 - and another thing that I think is important is the language in section

29:20 - 308 that says viewing records

29:25 - is subject to proper regulation for safekeeping of the records.

29:29 - That is a restriction that could be different in every county,

29:33 - depending on what each county board thinks is appropriate.

29:37 - And Allegheny County, we require someone to sign an affidavit similar

29:42 - to the affidavit that you need to sign to obtain voter registration records.

29:47 - We didn't address jurisdiction head on in any of our cases.

29:51 - I that's correct.

29:53 - And I, I, I would like us to

29:56 - are you asking us to go back and reassess that issue

29:59 - since it was never addressed head on?

30:01 - It would be very helpful to me as the right

30:03 - to know attorney for Allegheny County.

30:05 - We, currently there's several different situations in which our process

30:10 - has been to redirect right to know requesters to other department.

30:14 - That's all kind of in flux now because of this court's decisions.

30:17 - And we are making some changes that I don't know

30:20 - that we legally need to be making, and some clarity would be appreciated.

30:23 - But if we did that, would we have to overrule our precedent

30:26 - because we've acknowledged what the right to know law states?

30:33 - I mean, you may have to

30:34 - remand some cases, but if you're also ruling that voted

30:39 - mail in ballots are public under the election code, I mean,

30:43 - the remand would be procedural.

30:44 - I imagine it doesn't get you to where you want to be.

30:47 - It doesn't I

30:51 - honestly, I would just appreciate some clarity

30:53 - regarding the jurisdictional issue. And I think it's an important issue.

30:56 - It applies to counties across the Commonwealth, countless agencies.

31:01 - We need to know how to direct our requesters.

31:05 - And within the scope of the Supreme Court cases, a case that is pending.

31:09 - Now, I don't think it's in private.

31:11 - I did listen to the arguments, and I read the briefs.

31:14 - I don't think that private has anything to do with that.

31:16 - I'm pretty sure that it it is.

31:18 - It is, part of my case, Van Beber Weaver, which is also being held.

31:23 - I'm fully ready to get into this issue with, with our Supreme Court.

31:29 - I would love some clarity about all of this.

31:32 - And if I may, because I keep. Yes, more minutes.

31:35 - That's. We,

31:38 - for for me, your honor, what is really critical

31:41 - today is that I am heard on the issue of bad faith.

31:46 - It is very critical

31:48 - that we don't have a precedent in this commonwealth

31:51 - in which a search for records is required,

31:55 - even in a situation where the Open Records Office knows where the records are.

32:00 - No. Is what the records say.

32:02 - That would just be an absurd result.

32:04 - I don't even know how we would achieve something like that.

32:07 - If we have to search for ballots whose location we know,

32:11 - how would we meet that burden?

32:13 - When there is a good faith, reasonable basis for believing

32:18 - that something is not public under another law,

32:22 - there's no reason in Uniontown newspapers or anywhere else

32:26 - to require some kind of perfunctory search.

32:30 - I just think that what he is asking for, what Mr.

32:33 - Town is asking for regarding that point is, is absurd

32:37 - and would be extremely difficult to to make work.

32:41 - So we are asking that, Your Honor,

32:44 - affirm the trial court's decision that the county was not in bad faith.

32:48 - We are asking that you deny the request for a remand regarding costs and fees.

32:53 - And, we are also asking that the trial court's

32:56 - decision about Mail-In voting ballots be affirmed.

33:00 - Thank you.

33:00 - And I commend you on the difficulty of arguing before a court

33:03 - that's already issued a decision.

33:05 - And you're

33:05 - basically asking the court to reconsider and overrule what it recently does.

33:10 - I'm I'm not even doing that, Your Honor. My

33:13 - my colleague may be doing that.

33:16 - Yeah.

33:23 - Can you hear me?

33:24 - Okay, great.

33:27 - Madam President, judge, an honorable judges.

33:29 - May it please the court.

33:29 - My name is Kenneth Joel, the deputy general counsel.

33:32 - I'm here on behalf of amicus Secretary Schmidt and the Department of State.

33:37 - And I recognize the landscape that we're in.

33:40 - The canvas I'm painting on, if you will.

33:42 - I also recognize I'm now down to four minutes and 55 seconds.

33:46 - So I'd like to focus our time today on what we've called

33:50 - the jurisdictional issue, because I really do

33:51 - think that that is important and it has not.

33:54 - To your point, Judge Covi, it hasn't been addressed head on.

33:57 - It's been nipped around, nipped around, but it's not been addressed head on.

34:01 - Oh, that's what I want to ask you.

34:02 - What if the o o r does not have jurisdiction?

34:05 - What kind of relief can this court,

34:08 - what kind of relief can this court afford?

34:10 - It can affirm so your granted the request?

34:15 - The trial court denied it.

34:18 - This court could affirm the trial court on that alternative basis,

34:22 - which is in the record,

34:23 - which you clearly have the, the province and the ability to do so.

34:26 - Our view would be to affirm the trial court decision

34:30 - denying those records on this alternative basis, that the o

34:34 - r should not have entertained that appeal in the first instance, full stop.

34:40 - And our basis for that up.

34:41 - So put an end to all election challenges

34:46 - all over the Commonwealth.

34:48 - Is that you're not sure I agree with the election challenges part of it.

34:52 - But in this case the election code does not apply.

34:55 - No, no. What you say the o o r cannot. Right.

34:58 - So you want parties to file mandamus

35:01 - and all of the claims across the Commonwealth for any challenge.

35:06 - Is that what the.

35:07 - No no no.

35:10 - The effect is that if somebody is asking for this type of election related material

35:16 - that is clearly governed by the election code,

35:19 - that's what, 3701 of the right to know law says that when another law governs it,

35:24 - when it has processes applicable to it,

35:27 - the right to know law is superseded.

35:30 - If the right to know law is superseded, the o r as a creature of statute has.

35:33 - So what?

35:34 - What procedures provided by the election code for these.

35:37 - So so the request would be made to the election to, to the county.

35:41 - The county would either grant that or deny that that would be a local agency

35:45 - decision that could be appealed up through the trial court and ultimately

35:48 - to this court to make substantive decisions or, if, if or mandamus could.

35:54 - I'm not saying

35:55 - which one would be the most appropriate, but there's at least a couple of avenues

36:00 - to allay your fear that there would never be

36:02 - a judicial decision on the substantive issues.

36:05 - We have different decisions in every

36:08 - 67 of the counties in this Commonwealth, because it's not just

36:13 - one issue like you're framing it or they framed it here.

36:17 - It's any challenge to the election code. So,

36:21 - I mean, where do you get a request for specific documents?

36:24 - And yes, you could have differences.

36:27 - Excuse me.

36:28 - Specific documents as defined and identified by the election code.

36:33 - Yes. Which is what the o r was interpreting.

36:36 - What what the election code was public record. Yes.

36:40 - And our position is the the author should not be

36:44 - in that game to take this one point.

36:47 - I referenced the right to no law.

36:48 - We have the, the energy transfer case.

36:51 - We have it just last week or the week before our Supreme Court issued a decision

36:56 - in, Mesa Kappa where it said, look, cryo

37:00 - applies, cryo tells us whether something goes out the door or not.

37:04 - Cryo tells us who has to respond or not.

37:07 - Not. Oh, okay.

37:08 - What counsel just to follow up on that.

37:10 - And then I'm going to step back here. Sure.

37:13 - Happy to answer any questions you have. Judge

37:16 - I'm glad.

37:18 - What's the procedure for processing the request?

37:21 - If we eliminate the right to know law, all you're left with

37:25 - is an election code that says public record.

37:28 - How in the world is the process to be implemented?

37:31 - There is no procedure.

37:32 - You can't have it both ways.

37:34 - I think there I mean, as as my counsel said, as my colleague said,

37:39 - different counties may have different procedures

37:41 - and you'd follow this process for how you challenge,

37:45 - for how you challenge, it would be either an appeal of a local agency decision,

37:49 - which there's a process for that.

37:52 - And, and parties can follow that process and disclosure

37:56 - and time frames and everything else is provided in the right to no law

37:59 - that goes by the wayside because you don't want it to apply.

38:03 - It's not that I don't want it to a problem.

38:04 - Well, you're saying it can't.

38:05 - You don't want it to. It can't apply.

38:07 - But it's not what I want or don't want.

38:09 - It's that the General Assembly has set this up.

38:11 - Oh, wah!

38:12 - Well, that's your creature of statute.

38:15 - Yes, that is our position.

38:16 - And I think just to put a finer point on it,

38:19 - my colleague talked about the qualified elector

38:22 - or was never set up to determine who's a qualified elector and who isn't.

38:26 - That's the county.

38:26 - What's a public record?

38:28 - What's a public record?

38:29 - Yes. A record is designated under the under the right to Know law.

38:32 - Ha ha.

38:34 - And the election code says these are public records.

38:37 - If you eliminate the right to know law, how do we interpret public record?

38:42 - It's our position.

38:43 - And I'm happy to talk about the statutory analysis that we perform,

38:47 - but that this law governs.

38:50 - And this law specifically

38:52 - says that these types of documents, these types of records are not public.

38:56 - That's our that is our position. That is our statute.

38:58 - The gaping hole.

39:00 - I'm sorry you've left a gaping hole in your argument, but I'm done.

39:04 - Okay.

39:05 - I see my lights flashing, but I'm happy to entertain.

39:07 - Any other questions? I have a quick question. Sure, general.

39:10 - So if we. I'm sorry. Judge. Coffee.

39:11 - If it's looking that way, I apologize. Oh, no worries.

39:14 - If we agree with you, would we have to overrule our current precedent?

39:18 - I think he would, in all honesty, well,

39:23 - that would really throw the, you know, into a tailspin

39:26 - because some of the cases are already there.

39:30 - It's an interesting question, and you may not have to overrule it, per se,

39:34 - because you really have never dealt with this issue head on,

39:38 - but it would adversely affect, I think it would adversely impact.

39:41 - And I would note, you know, we have the energy transfer case,

39:45 - even this court cases, I mean, honey was decided

39:48 - on section 308, no provision of the right to no law.

39:52 - Stroman was decided on 308, not a provision of the right to Nola honey.

39:57 - The trial court even said pursuant to the to the election code

40:01 - that Miss Honey didn't have standing to even be there.

40:04 - No right to no law issue. There.

40:06 - Even private, which, you know, I acknowledge went the other way

40:10 - inserted Van Vivian waiver was decided on 1307 and 1309 of the election code.

40:16 - So this court has been sort of.

40:21 - Walking around the issue there.

40:22 - Yeah, it has in some way just been walking around it.

40:25 - I don't know that it's been ever as well. Counsel.

40:27 - I wouldn't say we weren't walking around.

40:29 - The jurisdictional issue was never raised in this part.

40:32 - And I was and that's the point I was just going to make is that I'm

40:34 - not sure it's never been as forcefully articulated, by the litigants.

40:39 - It and to answer your question, Your Honor, judge Wolff.

40:42 - It is before, honey, we have made that and we are a party.

40:46 - Actually, in the honey case,

40:47 - the department and the secretary are not just to me

40:50 - because we are actually litigants in that case.

40:52 - And we have put that case.

40:53 - We have put that issue front and center in our briefing.

40:56 - So whether they'll bite, whether they'll address it, who knows.

41:00 - But but it is fair.

41:01 - But it is fair with the president judge's indulgence.

41:04 - I just have one blinking red light.

41:06 - Question.

41:07 - If you may, Mr.

41:10 - Joy, your colleague Michelle said about, you know, it's

41:13 - an official ballot until it's voted.

41:17 - What what happens to the ballot then?

41:19 - What what what do we call that once about a blank that was voted?

41:24 - I'm not sure.

41:24 - She said it's an official ballot to vote it.

41:26 - I thought that's what my friend on the other side, I heard it somewhere.

41:29 - So let's just so let's just assume that so.

41:31 - But I take your question.

41:32 - So we believe that if you look at even just this one provision, right,

41:37 - this one provision in subsection B of it talks about a completed

41:41 - mail in ballot or in the absentee version, a completed absentee ballot.

41:46 - The General Assembly

41:47 - knows how to call something voted and completed when it wants to.

41:50 - It didn't in subsection eight.

41:52 - So our view is the official ballot means for purposes of this section,

41:56 - which would be consistent with other provisions

41:58 - in the election code, it is the ballot that goes.

42:01 - It's the the certified ballot, if you will.

42:03 - I mean, it's it's, I found interesting my friend on the other side's history

42:08 - lesson about political parties sending out ballots versus government officials.

42:13 - That, to me is where we're talking about official versus unofficial.

42:16 - You know, we're gone from a time when the parties send out ballots

42:20 - for people to vote and turn back in that that, to me, is what we're getting at.

42:23 - So I hope that answers your questions.

42:26 - Thank you.

42:27 - I see I'm way over.

42:28 - I'm happy to answer any other questions.

42:30 - But again, thank you for the opportunity to, to discuss this with you today.

42:34 - Thank you very much.

42:43 - Thank you, Your Honor.

42:46 - I wish to point out to this court

42:49 - that the public record provision

42:52 - for the mail in ballot and the absentee ballot is in a preservation right.

42:57 - That preservation right is two years.

43:00 - I would encourage the court very much so to go look at the preservation.

43:05 - Right.

43:05 - That is in the general code for the in-person ballot.

43:09 - That preservation right says that you must preserve

43:13 - the official ballot, and it calls out the official ballot directly.

43:18 - So that also goes to the fact

43:22 - that the official ballot is a ballot that is completed and voted.

43:27 - Let me also say to this court that there is a way

43:30 - to reconcile all of this because there is a point,

43:34 - a provision, a clause in 308 that has not been interpreted,

43:39 - and that is the last clause

43:42 - and the last clause

43:44 - of that particular provision.

43:49 - Says and provided further

43:52 - that general and duplicate returns, tally

43:55 - papers, affidavits of voters and others,

43:58 - and all other papers required to be returned

44:03 - by the election officer to the County Board,

44:05 - sealed, shall be open to the public

44:09 - only after the County Board shall, in the course of computation

44:13 - and canvasing of the returns have broken, search sealed, and finish for the time

44:18 - their use of said paper in connection with computation and canvasing

44:23 - that the things that are required to be returned

44:27 - include the contents of the ballot box, including.

44:31 - Is there an exception for the contents of the ballot box,

44:33 - which is not to be disclosed?

44:35 - Not public record?

44:36 - No, no, Your Honor, well, there is an exception

44:40 - when that is in the ballot, in the content of the ballot earlier,

44:44 - only in the correlator in that same sex, earlier in that same section.

44:48 - This section basically says that the ballot box

44:52 - has to be opened, and the ballot box has to be empty before the next election.

44:56 - Sure. Our request came after certification.

44:59 - We think that it is absolutely reasonable that all ballots,

45:04 - not just simply the postal ballots,

45:05 - but all ballots, be treated equally and can be treated equally

45:09 - by providing by applying this proviso as it is applied in the mail, in

45:14 - and in the, absentee ballots,

45:17 - then would you agree that the jurisdiction of the law should not

45:22 - know, deciding, and that it should all come back under the election code?

45:26 - I disagree that it should come back.

45:28 - I disagree that the jurisdiction of the o

45:32 - o r that the that the law has no jurisdiction here.

45:36 - I think the election code and the, rec law just is a coroner's act,

45:42 - and the law can be reconciled in a way that harmonizes the two together.

45:48 - So is that argument raised before, because this also

45:50 - seems like a new argument that the bottom half of section

45:54 - 308 is in a briefing, or it is in our briefing.

45:58 - It okay.

45:59 - Would that square if we agreed with the

46:03 - with the other side that only the law has jurisdiction?

46:09 - I mean, only the only jurisdiction

46:11 - falls under the election code and a law has no jurisdiction.

46:14 - Would then it line up all of our cases, because some of our cases do seem

46:19 - like they're a little conflicting about when you can

46:22 - you can't get a, in-person ballot, but you can get a Mail-In or absentee ballot.

46:28 - Well, I think, Your Honor, by treating everything as a public record

46:31 - after the limited time exception that aligns the same way.

46:35 - Am I making a hopefully I'm making sure.

46:37 - No, no, no, no, I because I had thought the same,

46:41 - result.

46:41 - Thank you, thank you. Understood.

46:43 - Thank you very, very much.

46:45 - In the next argument, the Fraternal Order of Police fought Pit

46:49 - Lodge Number one on behalf of police officer Keith Edmunds.

46:54 - Appeals a trial court order that vacated an arbitration award

46:58 - directing the City of Pittsburgh to reinstate Officer Edmunds.

47:03 - In 2022, the city disciplined and eventually terminated

47:07 - Officer Edmunds after he violated numerous police department policies

47:11 - during an investigation into the theft of a bicycle

47:16 - during his interaction with the suspect, Jim Rogers.

47:20 - Officer Edmunds deployed his Taser numerous times.

47:23 - Mr. Rogers died not long after the interaction

47:28 - following his termination.

47:30 - The FOP filed a grievance on behalf of Officer Edmunds pursuant

47:34 - to a collective bargaining agreement, and in 2023,

47:37 - an arbitration panel directed the city to reinstate Officer Edmunds

47:42 - and return him to his former position with all rights and privileges.

47:47 - In reaching its decision, the arbitration panel found that

47:50 - the evidence was not sufficient to justify offer

47:54 - officer Edmunds termination.

47:57 - A dissenting arbitrator believed that the majority abandoned

48:00 - the law by not applying the just Cause standard of termination, and the Police

48:04 - Civil Service Act and criticized the award for prioritizing officer discretion

48:09 - over city policies designed to provide for the safety of its citizens.

48:16 - The city filed a statutory

48:17 - appeal of the arbitration award with the trial Court

48:22 - in vacating the award.

48:23 - The trial court found that the arbitrators won deprive the city of its due process

48:28 - rights by dishonestly finding that officer Edmunds did not violate city policies.

48:33 - Two the arbitrators exceeded their authority

48:36 - by invading the city's exclusive right to manage,

48:40 - administer and supervise its police officers.

48:43 - Three the arbitrators exceeded their authority

48:46 - by determining the city had not adequately trained officer Edmunds.

48:50 - When there was neither evidence or argument concerning this issue,

48:54 - and for the trial court, found the arbitrators deprived

48:58 - the city of its due process rights by refusing to allow Officer

49:02 - Edmunds to be cross-examined on his Taser training.

49:07 - In its briefing on appeal,

49:09 - FOP argues that the trial court order should be vacated

49:13 - because, under the extreme deference standard,

49:16 - the arbitration award did not exceed the arbitration panel's

49:19 - jurisdiction or powers under the collective bargaining agreement

49:24 - or violate the city's due process rights.

49:27 - Unlike the trial court in the city,

49:30 - FOP believes that the collective bargaining agreement

49:33 - and not the police civil service Act, should define

49:37 - whether the city had just cause to terminate officer Edmunds.

49:42 - In addition, under the extreme deference standard,

49:46 - FOP argues that the trial court only had the authority to question

49:50 - and arbitrator's award in excess of the arbitrators powers.

49:55 - It contends that under this standard, the trial court was bound

49:58 - by the arbitrators determinations of fact and issues of law,

50:03 - even if incorrect.

50:06 - In contrast, while agreeing that an arbitrator's fact

50:10 - finding is entitled to deference, even if wrong,

50:14 - the city argues that a plenary non deferential standard

50:18 - is applicable on review when it concerns the jurisdiction of the arbitrators.

50:23 - The regularity of the proceedings, in excess of the arbitrators powers,

50:28 - and the deprivation of constitutional rights.

50:32 - The city

50:32 - alleges that the arbitration panel's decision improperly removed from the city

50:37 - its ability to strictly interpret the rules, regulations and policies

50:42 - it promulgates for its police officers.

50:46 - Furthermore, it contends that the arbitration panel

50:48 - improperly granted individual officers the right to exercise their own

50:52 - discretion and ignore rules, regulations, and training

50:56 - which may subject the city to tortious liability.

51:01 - This case hinges on the amount of deference the trial court

51:04 - was to give the arbitration panel,

51:05 - when considering the panel's decision to reinstate Officer Edmunds,

51:09 - and whether a trial court can vacate an arbitration award because it believes

51:13 - that the panel dishonestly evaluated the evidence before it.

51:18 - Let's listen to the arguments.

51:20 - Good morning, Your Honor. Can you hear me?

51:22 - Okay.

51:22 - At this time, I'd like to, Designate two minutes for rebuttal period.

51:31 - You have it.

51:32 - Okay. Good morning. My name is Ronald Resch.

51:34 - I'm here on behalf of the FOP Lodge one and the directly affected grievance

51:38 - officer, Keith Edmonds.

51:39 - We are the appellant before you.

51:42 - However, the case originally started out as an appeal from the city.

51:45 - It emanates from an an act 111 grievance arbitration award from work winners.

51:49 - It was followed by a supporting opinion that's permitted by the party CBA, wherein

51:53 - he returned Officer Edmonds to employment,

51:56 - eliminating all discipline and making him whole.

51:58 - And this arose out of a case involving, an interaction with him and an individual,

52:02 - Jim Rogers, of whom it was, ended up passing away

52:06 - shortly after the incident that was involved.

52:08 - Ultimately, the city had initially appealed and challenged the award.

52:12 - And why we're here is because the lower court,

52:14 - Judge Hertzberg, and the Court of Common Pleas overturned the award.

52:18 - And he overturned the award essentially

52:20 - on four points that overlap two areas under neurosurgery.

52:25 - So, as you know, and to re-emphasize, which is the point for appeal

52:31 - act 111 awards, both interest and grievance are intended

52:34 - to be final and binding by the Pennsylvania legislature.

52:36 - And the reason for that is so all of these different disputes,

52:39 - mostly in our case labor disputes, don't always wind up in front of the courts,

52:43 - because it requires the courts to do fact findings.

52:46 - And under neurosurgery or I, in this particular case, Judge

52:50 - Hertzberg found that there was an excess of powers

52:53 - and a due process violations.

52:56 - And the due process violations focused on him basically

53:00 - holding that there was dishonesty by the arbitration panel.

53:06 - So at the lower level, there is a tripartite arbitration panel

53:09 - in which arbitrator winners was the neutral picked by both parties.

53:13 - There was an FOP partial arbitrator and a city partial arbitrator.

53:16 - And the decision came out in favor of the FOP.

53:19 - His, main position on dishonesty was he believed,

53:24 - upon a review of the fact finding that he disagreed, and that there was sufficient

53:28 - just cause to uphold the discipline with meaning terminate Officer Edmonds,

53:32 - and that to find otherwise based on the record was dishonest.

53:37 - And you address that the fact the argument that was made concerning

53:41 - the lack of training

53:42 - and whether or not the arbitrators should have considered any evidence,

53:46 - or was that part of the issue, did it fall under just cause?

53:50 - Yes. There's a couple reasons why he the court lower court found that

53:55 - that was in excess of his powers as opposed to due process.

53:58 - So he determined that there wasn't

54:00 - sufficient evidence of record for the FOP to submit in its argument

54:06 - that there was improper training in this case, and therefore

54:09 - it was an excess of powers for the panel to rely upon the evidence

54:14 - that it did of record, because the court found it to be insufficient,

54:18 - and therefore it went from that to say it was outside of the arbitrators powers.

54:23 - In other words, it wasn't raised by the FOP

54:27 - in the arbitration, but it was the FOP submitted.

54:30 - James Montella says the main exhibit, when it came to, failure in training,

54:36 - one of the main points of failure of training that, Michaelis pointed out

54:40 - was this wasn't just a situation where one officer showed up at the scene,

54:44 - and whether an officer did or didn't do something constituted a violation

54:47 - that could have resulted in this man's death.

54:49 - There were multiple officers that responded, nine of them.

54:53 - And one of the contentions that was in the, Cfpb

54:56 - review board petition, or I'm sorry, a report was that

55:00 - there was a failure to notice a required need for medical treatment for Mr.

55:04 - Rogers, and therefore, you attribute that to to officer Edmonds solely.

55:09 - And Montella came in and said, no, there's nine officers there.

55:13 - And this all happened within less than a half hour.

55:16 - And you're trying to interpret that all nine of these officers

55:19 - apparently had a form of indifference.

55:21 - There was like a depraved indifference on the on the actions of the officers

55:25 - that allowed them to just say, hey,

55:27 - all nine of us are not going to get this guy medical treatment.

55:29 - And therefore it was more than just a

55:32 - mistake by one officer or even a lack of training.

55:36 - And Montel was pointed out, no,

55:38 - if you have nine officers that are coming in there

55:40 - and they're all missing what they think, oh no, that

55:43 - this man had been tasered well, so many times.

55:47 - Well, the officer who tasered him that many times did, I think didn't he.

55:52 - Just he he hit him or something.

55:54 - He reported that there was Taser deployed.

55:57 - However, though the court acknowledges, hey, there were ten attempted

56:01 - uses of the Taser, there were only full contacts obtained twice.

56:05 - And in the actual video when you which is submitted of record

56:09 - as part of the reproduced record, he administers

56:12 - the taser and does not get compliance from the the individual.

56:15 - So he tased them.

56:17 - There's initially some like non-response like a partial response gave commands.

56:22 - He was refused, tased him again.

56:24 - Eventually he gets Taser contact where he actually is able to fully

56:27 - effectuate the Taser, and other times he doesn't get full contact.

56:30 - And the suspect in this case, Mister Rogers,

56:34 - basically shook it off and kept not complying and kept not complying.

56:37 - So the other officer, was he not complying?

56:39 - He was lying on the ground with the guy on top of him.

56:43 - Well, that's because he had originally approached the approach.

56:46 - Mr. Rogers, in order, in response to a 911 call, asked him

56:50 - for additional information.

56:51 - And the point of that, I mean, I get your questions,

56:53 - Your Honor, but part of it is it's a that's a fact finding analysis

56:57 - that under narrow search, your eyes normally entitled to extreme deference.

57:00 - The idea is whether the findings, whether the panel,

57:04 - at least a

57:05 - majority of the panel crossed a line into dishonesty.

57:08 - Now, the court can I follow up with that?

57:10 - Because didn't, the suspect asked for medical, assistance

57:15 - to prevent he made vocalizations for medical assistance.

57:19 - And ultimately, medical assistance was provided by the lieutenant,

57:23 - who was the primary, officer at the scene.

57:26 - You know, let me finish my question. I'm sorry.

57:28 - Why wasn't the request made to the agreement?

57:31 - He was one of the individuals was made to. Yes.

57:34 - Was there no cross examination?

57:38 - Concerning

57:40 - the lack of training or what actually transpired?

57:44 - I thought there was an issue also there that the grievance testified

57:48 - to the training, but there was no cross examination thereof.

57:52 - It was not allowed.

57:53 - That dovetails into another issue.

57:55 - You're right.

57:56 - What that separate issue was, is also under,

58:01 - that was under the due process where the judge found that

58:04 - there was no due process

58:06 - because in that particular instance, you were dealing with the Taser policy.

58:10 - Now, Officer Edmonds had been disciplined

58:12 - for numerous policy violations, but none of them were.

58:16 - You are responsible for Mr.

58:19 - Rogers death.

58:20 - It was

58:21 - you did these various things, allegedly, and that you or you failed to do others.

58:25 - And one of those policy violations was not a violation of the Taser policy.

58:30 - Now, the one of the calls, is there a policy that says you have to be

58:34 - responsible for somebody's death in order for there to be just cause termination?

58:38 - No, but if you're arguing that the primary cause of the individual's

58:42 - death was your use of the Taser, you would think that the city

58:45 - would disappoint him under the Taser policy.

58:47 - And that was the point that the FOP made.

58:49 - The city began to cross-examine based on the Taser policy.

58:52 - The FOP attorney lodged an objection based on relevancy, and technically,

58:56 - it could exceed jurisdiction because a Taser violation of the Taser

59:00 - policy was not something that was brought against the officer

59:03 - when the union grieved it and took it to arbitration.

59:05 - It's not a rule or a violation in front of the panel.

59:09 - So the panel would be making a determination

59:11 - beyond what he was alleged to have violated.

59:13 - The city said, well,

59:15 - that policy is subsumed in a general neglect

59:18 - of duty policy, which is basically like a general catchall.

59:21 - We shall not neglect your duty.

59:22 - But what is the cause of death?

59:24 - The cause of death was, a seizure.

59:26 - It was, here.

59:28 - I can actually read it, summarize it.

59:32 - Was the seizure brought on by the tasing?

59:34 - That was the opinion of the cities here.

59:36 - I can summarize it.

59:37 - He had died of an acute global hypoxic ischemic

59:41 - injury to the brain, meaning there was not enough oxygen to the brain.

59:44 - The city's expert opined that this was as a result of the tasing.

59:48 - How he phrased it was,

59:52 - it was in its facts, an asphyxia of the brain

59:54 - that was caused directly or indirectly by the result

59:58 - 731 of the actions of the officer that that doctor, doctor whom

01:00 - 04.734 also held that the restraint asphyxiation was made through the Taser.

01:00 - 08.371 He also opined that the position that Rogers was arrested in Belly Down,

01:00 - 12.875 as well as being seated in a car, in handcuffs, on a seatbelt

01:00 - 15.878 with his hands behind him, was what contributed to causing the problem.

01:00 - 18.915 The FOP experts disagreed,

01:00 - 21.918 indicated that although he agreed on the cause of death,

01:00 - 25.088 the cause of death was the same and the lack of oxygen to the brain.

01:00 - 29.292 Doctor de Souza, the FAA expert, indicated other factors

01:00 - 32.295 contributing factors that caused it, namely, he had a history of a seizure

01:00 - 36.065 disorder, prescribed two anti-seizure medications, of which Mr.

01:00 - 39.669 Rogers was non-compliant, confirmed by medical records that placed Mr.

01:00 - 42.672 Rogers at significantly high risk for recurrent seizures.

01:00 - 45.642 It was the opinion of documents that in torts,

01:00 - 48.244 you know, you take your plaintiff as you find them.

01:00 - 51.180 But the point was they're trying to say, look, you tased this guy

01:00 - 52.815 and you killed him because of the Taser.

01:00 - 55.885 And the medical experts for the FOP said, know that

01:00 - 58.921 when people die of tasers, they die of cardiac issues.

01:00 - 02.125 And as he determined here, there was no evidence that said doctor

01:01 - 03.593 de Sousa reviewed his workup.

01:01 - 04.293 And Mr. Rogers

01:01 - 07.864 had a normal level of troponin, troponin as a marker of damage to the heart.

01:01 - 10.400 And in this case, Rogers had no evidence of cardiac issues.

01:01 - 11.434 Appointed mission.

01:01 - 12.769 There were no remarkable findings

01:01 - 16.439 to suggest a cardiovascular issue, no abnormalities noted noted.

01:01 - 19.676 He indicated that the cause of someone's death when they're shocked

01:01 - 22.879 by a Taser is ventricle fibrillation, which occurs immediately.

01:01 - 27.550 Mr. Rogers had no sudden cardiac issue, but had pulseless

01:01 - 31.187 electrical activity upon admission to the hospital like a half hour later

01:01 - 33.322 due to a lack of oxygen to his brain

01:01 - 36.325 that occurred approximately 30 minutes after Taser deployment.

01:01 - 39.429 So it wasn't something that was incident immediate to the Taser.

01:01 - 40.630 There is a passage of time

01:01 - 43.633 that came which determines whether or not there's any causation.

01:01 - 47.637 But my question, goes along the lines of the officer

01:01 - 51.340 testifying that he violated the rules and the policy,

01:01 - 52.842 and then the

01:01 - 55.845 arbitrator saying, oh, but he had discretion.

01:01 - 59.515 Yes. That was that not well, our disagreement

01:01 - 02.785 was that he didn't testify to violating the rules.

01:02 - 10.860 If you can bear with me for a second.

01:02 - 15.765 He had testified that he was taught to use the least amount of force

01:02 - 18.201 necessary to accomplish his goal, and explained that while he

01:02 - 22.205 originally received training in 2014, he did receive at least annual updates,

01:02 - 25.975 but there was no further development on how significant those annual updates were,

01:02 - 29.112 whether they actually had hands on training things of that nature.

01:02 - 31.013 He explained that actions that he could use

01:02 - 34.550 for de-escalation of a situation versus actions for control differed.

01:02 - 39.522 He testified to being trained to place a suspect in a position of disadvantage

01:02 - 42.658 depending on the situation, such as by having a suspect

01:02 - 45.394 get on the ground when they're held at gunpoint,

01:02 - 48.331 having the suspect face a wave, or some of their hands interlocked

01:02 - 51.400 further, while Emmons admitted to placing his hands in the soles of his pockets

01:02 - 54.971 due to a bulge it presented which resulted in obtaining the suspect's wallet,

01:02 - 56.439 which he testified that per

01:02 - 00.276 his training, could be used by a suspect to conceal a weapon, namely a razor

01:03 - 02.645 or other small sharp item which, if it could conceal

01:03 - 06.415 a weapon, is within policy, and the arbitration panel, majority

01:03 - 10.119 thereof held that the the writings of the city's policies,

01:03 - 13.122 which it should be construed against the drafter,

01:03 - 17.393 provided numerous options for the officers to exercise discretion.

01:03 - 21.531 The officer should or may, in an all in all likelihood try to do this,

01:03 - 25.067 but it ultimately depends upon officer discretion and the situations

01:03 - 27.203 that the officer finds themselves in.

01:03 - 30.773 And again, that review of the rules, which is another thing that the lower

01:03 - 32.575 court found to be,

01:03 - 37.180 but that the, the exceptional said

01:03 - 40.983 they concluded that he may not have followed each

01:03 - 43.986 and every policy, rule and regulation by the strict letter.

01:03 - 47.990 He did not violate them either, because each one permits

01:03 - 50.993 the officer to use their discretion.

01:03 - 51.727 Correct.

01:03 - 55.464 So that's and relating to following from

01:03 - 58.534 what was the city's argument that the lower court adopted was

01:03 - 03.172 it was an excess of powers for the arbitration panel to review

01:04 - 07.310 the policies, procedures and rules that were violated.

01:04 - 09.278 And the lower court said, well, no, sorry.

01:04 - 12.281 The city has a managerial right to say that has to be strictly construed.

01:04 - 14.784 Now, case law says otherwise.

01:04 - 17.820 Case law Pennsylvania case law indicates that when this is,

01:04 - 22.158 put before an arbitrator, the rules, it's in the brief of I

01:04 - 26.395 in a second, I can pointed out the when just cause is under a contract,

01:04 - 29.565 which it is here undefined by the parties which it was here.

01:04 - 32.768 And the arbitrator has to determine just cause the rules, regulations

01:04 - 36.205 and policies cited as violated or considered subsumed in the collective

01:04 - 37.106 bargaining agreement,

01:04 - 40.843 whether they were actually written, incorporated or not, which would allow

01:04 - 43.980 the arbitration panel to review those rules and interpret them,

01:04 - 45.848 which could include reviewing them and saying,

01:04 - 49.252 well, there is officer discretion that's here that was put in front of the panel.

01:04 - 51.721 And one thing I wanted to

01:04 - 55.224 note quickly, because it recently developed,

01:04 - 59.595 is one of the justifications that the lower court had in this case.

01:04 - 01.297 I'm running over time, but I wanted to note

01:05 - 04.800 it was in pointing to the Civil Service Act of second class

01:05 - 07.803 cities, which talks on just cause and are both parties briefs.

01:05 - 11.073 Go into it in detail that the judge found.

01:05 - 15.211 Hey, because this this case doesn't, in my opinion,

01:05 - 17.046 demonstrate a merit based review

01:05 - 21.117 dealing with competency and ability in some logical manner, as is provided

01:05 - 25.021 for the Civil Service Code which is mentioned in the parties CBA.

01:05 - 29.292 Arbitrator winners in the panel didn't fall of that as he as

01:05 - 32.728 he goes on to elaborate, and therefore that's a violation of

01:05 - 36.198 those are the grounds he used.

01:05 - 38.100 I think it was due process.

01:05 - 41.904 The problem is this court has since held recently, like last month

01:05 - 45.908 in the Thomas Potts case in 263 CD 2024

01:05 - 49.645 and the Dalton Daily case at 415 CD 2424.

01:05 - 51.714 Both admittedly presently appealed

01:05 - 54.283 to the Pennsylvania Supreme Court awaiting a decision on out of the court

01:05 - 58.387 or that this the Civil Service Act does not apply to these parties

01:05 - 02.425 because the parties negotiated act 111 scope and standard of review,

01:06 - 03.960 including narrow certiorari,

01:06 - 08.264 so trying to point to the Civil Service Act and saying that defines in any way

01:06 - 12.168 just cause is inappropriate because just cause is defined by the arbitration panel.

01:06 - 14.804 Just cause then, would determine whether or not

01:06 - 17.940 the rules and regulations are interpreted a certain way,

01:06 - 21.510 and just cause would necessarily implicate training on those rules and regulations.

01:06 - 23.846 Now, way over time.

01:06 - 26.816 Now two minutes. Tom, thank you.

01:06 - 28.284 Thank you very much.

01:06 - 42.631 Good morning.

01:06 - 43.966 May have pleased the court.

01:06 - 44.667 Irene.

01:06 - 47.670 Donna Thomas, I represent the city of Pittsburgh,

01:06 - 51.574 and we submit that the trial court order should be affirmed.

01:06 - 54.744 Because the,

01:06 - 57.747 question of the arbitrators dishonesty

01:06 - 03.252 is at the bottom of the, of the entire arbitration award.

01:07 - 09.725 I'd like to start with, that issue, if the court, doesn't mind, as we know,

01:07 - 16.499 arbitration is highly favored not only in Pennsylvania, but federally.

01:07 - 22.371 There is an implicit foundation to that policy,

01:07 - 27.410 and that's that the arbitrators decision is going to be made in good faith.

01:07 - 32.882 How do we know that every statute that ever has been promulgated

01:07 - 37.286 regarding arbitration has a provision for vacate?

01:07 - 42.391 Sure, that deals with arbitrator misconduct in some form or fashion,

01:07 - 47.696 whether it's, bias, whether it's, evident partiality.

01:07 - 50.399 Every arbitration

01:07 - 53.402 statute, including the statutes in Pennsylvania.

01:07 - 58.274 So in the United States Supreme Court and Misko more famous

01:07 - 02.078 for the public policy argument, but that's not being made here.

01:08 - 05.815 United States Supreme Court in miscue, miscue.

01:08 - 10.086 Misko said a decision procured

01:08 - 14.990 through the arbitrators dishonesty need not be enforced.

01:08 - 19.295 What do you point to specifically where the arbitrators were dishonest?

01:08 - 25.868 Okay, let's, let's start with the, arbitrators holding that, the,

01:08 - 30.473 as as one of the, justices said that the

01:08 - 34.777 employee or the former officer,

01:08 - 37.913 he didn't follow all of the rules.

01:08 - 42.818 But, you know, he didn't violate them either.

01:08 - 44.587 That's that's honest.

01:08 - 47.123 That's an absolutely dishonest statement.

01:08 - 50.126 First, as was pointed out,

01:08 - 52.495 Mr. Edmonds admitted

01:08 - 55.865 that he violated every rule for which he was challenged.

01:08 - 58.968 Charge every single rule.

01:08 - 02.838 And the most important, that I'd like to point out

01:09 - 06.175 is the rule about the Terry style.

01:09 - 10.646 There's no question about it. Mr.

01:09 - 14.617 Edmonds realized, well, knew that he was violating this rule.

01:09 - 18.521 He should have known that he was violating this rule in the first place.

01:09 - 22.825 We don't have an issue as to whether or not he had a reasonable belief

01:09 - 25.828 that the suspect was or Mr..

01:09 - 29.965 Jim Rogers, was involved in criminal activity.

01:09 - 32.501 There was a reasonable belief of that.

01:09 - 37.606 The question is whether or not he had a reasonable belief that Mr.

01:09 - 41.243 Rogers was presently armed and dangerous.

01:09 - 45.147 That's what the rules requires, presently armed and dangerous.

01:09 - 50.252 If you look at the, the Critical Incident Review Board report,

01:09 - 54.223 he has never, ever been able to articulate

01:09 - 57.826 a reasonable belief that Mr..

01:09 - 00.930 Rogers was armed and dangerous.

01:10 - 02.665 Indeed. Mister.

01:10 - 06.168 Yes. Q yes, let me ask you the fact that he was resisting.

01:10 - 10.739 The officer put his hand on his hand and didn't

01:10 - 14.176 the officer testify that he thought there was something in the pocket?

01:10 - 17.346 Well, in the first place, Your Honor. Yes.

01:10 - 19.381 They say he resisted.

01:10 - 21.784 However, at that point, Mr.

01:10 - 24.019 Rogers was not under arrest.

01:10 - 27.890 He had, he was never even told he was under arrest

01:10 - 29.758 until after he was tased.

01:10 - 32.061 And most importantly, Mr.

01:10 - 34.930 Edmonds testified that he knew Mr.

01:10 - 37.433 Rogers had a wallet in his pocket.

01:10 - 40.669 At that point, he did not have probable cause

01:10 - 44.240 to go in his pocket under the rules or under Terry.

01:10 - 45.774 V Ohio only.

01:10 - 49.645 He only required a reasonable suspicion at the point of stop.

01:10 - 51.580 Yes. And

01:10 - 54.617 he had a reasonable suspicion that and we don't argue

01:10 - 58.320 that that he that the criminal, let's say criminal activity was afoot.

01:10 - 01.223 Let's say it like that. We don't we don't argue that.

01:11 - 04.893 We argue whether or not he was allowed, permitted

01:11 - 07.896 under the rules to do the patdown.

01:11 - 12.501 And we submit that he wasn't because his own testimony says,

01:11 - 16.405 I knew he had a wallet and I went to ID him.

01:11 - 20.943 So even if, he wanted to claim that there was

01:11 - 24.113 some type of weapon in his pocket, the moment he admitted

01:11 - 28.083 I wanted to ID him, he made it very clear

01:11 - 31.153 that he knew there was a wallet and he wanted to get it.

01:11 - 33.355 That was the purpose of the pat down.

01:11 - 34.356 Totally illegal.

01:11 - 36.358 And the hardest part about an arbitration award

01:11 - 39.628 is that you don't have a whole list of findings of facts here.

01:11 - 41.397 It's very short.

01:11 - 45.367 So are we allowed to go beyond what the arbitrators in the short

01:11 - 48.604 statement stated and looked to the facts

01:11 - 52.174 to say, hey, you were dishonest because ABC and the

01:11 - 56.345 of what was testified to and is there a transcript in this case?

01:11 - 01.150 Yes, Your Honor, because the combination of Mr.

01:12 - 05.287 Edmonds is admissions that he violated these rules.

01:12 - 07.823 For example, another rule he's supposed to have,

01:12 - 11.994 where can we find the admissions?

01:12 - 15.864 Let's see which which one do we want to talk about?

01:12 - 17.733 Just any. Anyone. Okay.

01:12 - 22.071 The pat down notice that he had a wallet in his pocket.

01:12 - 23.072 You could look at the record.

01:12 - 27.743 At 946 a he was just going to ID him.

01:12 - 33.182 That's at the on the record at 940 a he admitted that pat down

01:12 - 36.185 searches should be conducted by at least two officers.

01:12 - 39.588 You could find that at, well,

01:12 - 42.958 you could look at city exhibit two at page 230.

01:12 - 46.795 He was trained, not the call of backup.

01:12 - 48.731 He admitted that that the city.

01:12 - 50.733 Exhibit two 230.

01:12 - 52.067 He was in training.

01:12 - 56.572 He admitted that he was trained in the academy not to engage someone alone.

01:12 - 58.941 And yet, that's exactly what he did.

01:12 - 02.111 The city, exhibit two at 230.

01:13 - 05.814 So, and and I can go on.

01:13 - 09.685 He didn't go, when doing a pat down, he admitted, you don't

01:13 - 13.389 go inside a pocket unless you feel the article is a weapon.

01:13 - 17.726 This is is that the record at 937 a so he's he's

01:13 - 23.098 admitting all of these violations of each and every rule for which he was charged.

01:13 - 28.704 And yet for the arbitrators to even suggest that.

01:13 - 33.475 For it

01:13 - 36.478 for the arbitrators to suggest that he didn't.

01:13 - 38.814 Let me ask you a different question.

01:13 - 42.551 So the argument that was made on the other side is the issue

01:13 - 46.121 of whether or not he had the necessary training.

01:13 - 50.125 Do you believe that that automatically becomes subsumed

01:13 - 52.394 in the issue of good cause?

01:13 - 55.130 Because my understanding is that

01:13 - 57.866 what was argued on the other side is that it implicates that,

01:13 - 00.969 but it's not necessarily a part of but we just imply it.

01:14 - 03.639 In the first place.

01:14 - 08.811 The, the issue about the training, as we argued in the brief,

01:14 - 11.847 the the union never raised

01:14 - 14.817 that issue in the grievance procedure.

01:14 - 16.485 It was never brought up.

01:14 - 20.923 It wasn't until we were ready for arbitration we were actually

01:14 - 22.324 at arbitration.

01:14 - 27.663 The grievance, decisions had already been issued that this Mr.

01:14 - 31.667 Montclair's, comes up with this failure of training.

01:14 - 35.771 But if the court would just review where Mr.

01:14 - 40.843 Michaels made this opinion, what he did was he regurgitated

01:14 - 44.346 what the A or B did, what the CRB said.

01:14 - 49.852 And what's important about that is that the CRB report

01:14 - 56.191 was actually discussing the officers who were at the car looking at Mr.

01:14 - 00.529 Rogers in medical distress and not doing anything about it.

01:15 - 04.366 That's the context of the C or B report.

01:15 - 08.070 Another important point on that issue, Mr.

01:15 - 11.740 Edmonds admitted he never went to the car.

01:15 - 14.076 Let me back out. Okay,

01:15 - 15.744 so because the

01:15 - 19.181 arbitrator can set the issue, the CBA basically states

01:15 - 22.718 what the issue is in the case, which is whether or not there's just cause.

01:15 - 27.222 Can you automatically imply, as part of the decision

01:15 - 30.225 making process of whether or not there is good cause?

01:15 - 35.030 The issue arises as to whether or not a grievance had proper training?

01:15 - 39.301 No, no, no, Your honor, I respectfully disagree,

01:15 - 43.739 because if that could happen, the grievance procedure is meaningless.

01:15 - 44.973 We don't.

01:15 - 50.345 We would never have an opportunity to, counter any evidence.

01:15 - 55.117 If we just rely on now, we're going to do this at arbitration.

01:15 - 56.351 We could not counter that.

01:15 - 00.289 For example, had the union raise the failure to train

01:16 - 03.926 during the grievance arbitration procedure, not only could

01:16 - 08.764 we have had evidence that they they get the standard training.

01:16 - 10.332 And in fact, Mr..

01:16 - 14.703 Edmonds got to receive the training twice because he flunked out the first time,

01:16 - 17.706 and then he gets the annual update.

01:16 - 21.276 So, he had twice as much training

01:16 - 25.147 as any other officer had, and he still couldn't follow, didn't follow the rules.

01:16 - 28.917 So, but to answer your question, yes, Your Honor,

01:16 - 32.721 it's not or I should say no.

01:16 - 36.124 It's not acceptable

01:16 - 41.496 for the union to raise an issue for the first time at arbitration.

01:16 - 44.499 Well, actually, they raise it in arbitration.

01:16 - 48.770 An arbitrator relied on it, and the city, was did not an opportunity

01:16 - 51.773 to present additional evidence on that question.

01:16 - 54.977 I'm having trouble. Separating the facts.

01:16 - 58.347 So at first blush, I think maybe because at the very beginning

01:16 - 01.650 I had what I thought I understood the facts to be.

01:17 - 05.287 And then when I read more, I realized that the picture wasn't quite accurate.

01:17 - 08.390 So at first I thought there was a gentleman.

01:17 - 11.960 Mr. Rogers had been tased ten times and then passed away.

01:17 - 17.799 Then I came to read that there were only two successful actual tasing,

01:17 - 21.470 so there were eight attempts, but we wouldn't count that as being tased.

01:17 - 25.674 Then I read that the city fired the police officer, but

01:17 - 28.844 one of the reasons they did not fire him for was the Taser policy.

01:17 - 31.713 So should I be putting all of that aside

01:17 - 35.183 and just looking at what he actually was charged with?

01:17 - 40.322 And then my next question, like the two questions, the two part question is

01:17 - 44.860 if we look at only the policies he was charged with, like, for instance,

01:17 - 48.363 the pat down should have had a second officer.

01:17 - 50.932 The policy goes on to say when possible.

01:17 - 52.501 So that's probably where the discretion comes in.

01:17 - 55.470 But anyway, if we look at just those policies

01:17 - 59.408 as having him be fired, the

01:17 - 02.911 proper result and do we even reach that, is it up to me to make that decision?

01:18 - 04.479 So the three questions.

01:18 - 05.881 Sorry. Yes.

01:18 - 08.216 Having him fired is the proper result.

01:18 - 12.554 Given all of the facts and the context of this particular case,

01:18 - 17.993 beginning with the unconstitutional, effort

01:18 - 21.229 to take his wallet out of his pocket when he knew it was a wallet,

01:18 - 22.798 he knew that it was not a weapon.

01:18 - 28.136 So even if there was no Taser issue and maybe even no passing away of Mr.

01:18 - 32.007 Rogers, you think that that would be enough

01:18 - 36.978 that he was charged with the pat down when there was no imminent danger?

01:18 - 38.580 Well, yes.

01:18 - 42.150 I mean, the illegal pat down subjects the city to,

01:18 - 48.023 high liable over and over again for any individual officer

01:18 - 51.860 who decides that they're going to, use their discretion,

01:18 - 55.731 whatever that means, to the officer at any particular day.

01:18 - 00.502 And but the city of Pittsburgh and its citizens will be the ones paying for it

01:19 - 04.773 because, until the United States, Supreme Court

01:19 - 09.778 and or the Pennsylvania Supreme Court changes his mind, that's illegal.

01:19 - 13.415 And we would be on the hook for it.

01:19 - 15.550 Now. Mr..

01:19 - 19.855 Ralph spent a lot of time talking about the FOP.

01:19 - 21.656 He's expert witness.

01:19 - 23.592 What the FOP and Mr.

01:19 - 26.595 Ross did not share with you is that Mr.

01:19 - 29.831 D'Souza is not a forensic pathologist.

01:19 - 33.068 He is not qualified to talk about

01:19 - 36.071 the cause and manner of someone's death.

01:19 - 39.107 And yet you had, Doctor Omalu,

01:19 - 42.878 a world renowned forensic pathologist

01:19 - 48.517 who not only reviewed the, the brain tissue of Mr.

01:19 - 51.620 Rogers and reviewed the autopsy report.

01:19 - 54.156 He came to a different conclusion.

01:19 - 58.727 And that was the tasering in addition to the fixation,

01:19 - 02.063 caused the, the death of Mr..

01:20 - 03.799 Rogers.

01:20 - 07.135 And indeed, he said that he had no physical

01:20 - 10.105 and why wasn't a violation of the Taser policy charged.

01:20 - 15.010 I can't answer that here.

01:20 - 17.779 Do you know if the record includes the Taser policy?

01:20 - 19.548 I read the sections.

01:20 - 22.584 Okay, so I read the sections that he was charged

01:20 - 25.420 with, but I was curious about the section he wasn't charged with.

01:20 - 27.055 And that's in there then.

01:20 - 30.926 Well, the, the issue was the neglect of duty charge,

01:20 - 35.163 of course, which the city was not permitted to, cross-examine on.

01:20 - 39.000 We can charge that's not that's not 100% accurate.

01:20 - 44.406 The the part that the city was not able to inquire on which form

01:20 - 48.944 the basis for the trial judge's decision was an inquiry into the Taser.

01:20 - 55.317 Yes, but the city argued that that had to do with the neglect of duty.

01:20 - 59.688 But the FOP argued that since the Taser

01:20 - 03.325 charge was not in the case, as we just talked about,

01:21 - 06.561 it was safe

01:21 - 10.398 for them to rule that that inquiry should not be permitted.

01:21 - 12.400 And that's what the record shows. Yes.

01:21 - 14.336 And that's exactly what I was saying,

01:21 - 18.206 your Honor, that we had to neglect of duty charge.

01:21 - 21.810 And we are permitted under that charge to demonstrate that

01:21 - 28.083 the officer violated his duty with respect to any of those rules.

01:21 - 30.585 And that's exactly what we were about to do.

01:21 - 33.221 That does not give, correct me if I'm wrong.

01:21 - 37.025 That does not give, the officer fair notice.

01:21 - 40.428 If you're going to say neglect of duty opens the door to everything.

01:21 - 44.199 I mean, the neglect of duty in the Da

01:21 - 47.535 had to do with medical attention.

01:21 - 50.472 Well, this was mentioned in the grievance procedure,

01:21 - 53.642 and that's why that's another reason why we have the grievance procedure.

01:21 - 57.445 We don't have to, to draft charges as though

01:21 - 03.385 it's a, a complaint with, or, you know, with precision

01:22 - 08.223 that we have to give notice and we gave the notice about the, neglect of duty.

01:22 - 11.393 And they the parties discussed it during the grievance procedure.

01:22 - 15.730 So the, the parties had full notice.

01:22 - 19.634 In fact, if you look at the record, it was the FOP who introduced

01:22 - 23.838 the Taser policy into the record because they knew that

01:22 - 27.175 that's what we had been talking about throughout the grievance procedure.

01:22 - 30.045 So there's no lack of notice here.

01:22 - 33.682 Which is why the city did not object to its introduction.

01:22 - 36.685 We had been talking about it throughout the grievance procedure,

01:22 - 41.156 and we were permitted to cross-examine on that document

01:22 - 44.326 once it was into the record and it cut you off.

01:22 - 47.595 Oh, I'm sorry, but the blinking light scares me, too.

01:22 - 48.997 Okay. I'm sorry.

01:22 - 52.133 The, dishonest fact finding

01:22 - 55.270 legal argument is based on federal cases.

01:22 - 58.239 Is there a single

01:22 - 01.776 case in the Commonwealth of Pennsylvania that deals with that?

01:23 - 04.813 Not that, not that I found,

01:23 - 10.185 but I, we submit that the United States Supreme Court, holding

01:23 - 13.621 as well as the fact that,

01:23 - 18.259 underlying all of arbitrate, all arbitrator's award,

01:23 - 21.529 they are responsible for determining the facts,

01:23 - 24.899 the legal question of just cause

01:23 - 28.670 based on those facts and the judgment question,

01:23 - 32.307 what the remedy is going to do, also, based on those facts.

01:23 - 36.578 So if the facts or dishonest, everything else

01:23 - 38.546 falls apart, including the policy

01:23 - 41.516 that I was just looking for, whether there's any Pennsylvania.

01:23 - 46.855 No, no, you're aren't most of the cases that deal with dishonesty in arbitration,

01:23 - 51.026 aren't they mostly procedural issues such as failing

01:23 - 54.295 to disclose a conflict of interest, failing

01:23 - 58.967 to, disclose the arbitrators always have to do a lot of disclosure.

01:24 - 03.004 Most of them are procedural.

01:24 - 04.472 Well, some of them.

01:24 - 07.776 But say you don't you don't need the, the United States Supreme Court to say

01:24 - 10.879 that because under, for example, the FAA

01:24 - 16.518 or the, the Federal Arbitration Act or the Uniform Arbitration Act,

01:24 - 21.656 and now the revised Uniform Arbitration, that there's specific sections

01:24 - 27.128 that talks about vacate or on the grounds that, Your Honor is mentioning.

01:24 - 30.365 So there's no there was no need to say that

01:24 - 33.234 unless there's some other dishonesty

01:24 - 37.405 that, might not be enforced in terms of the arbitrators conduct.

01:24 - 43.044 And as I had mentioned in Pennsylvania, you have, statutes

01:24 - 47.048 that suggest about the, it doesn't come out and say

01:24 - 51.386 the arbitrators dishonesty, but you still have the Uniform Arbitration Act.

01:24 - 55.523 Even the prior Arbitration Act of 1927,

01:24 - 59.494 we have not adopted the revised Uniform Arbitration Act.

01:24 - 03.498 All of those statutes still had provisions

01:25 - 08.203 for vacating of an arbitrator's award, if any misconduct had been alleged.

01:25 - 12.774 But but you're right, in terms of this contract, you're alluding to is

01:25 - 17.078 dishonest fact finding that

01:25 - 21.382 the conclusions of the majority of the arbitrators,

01:25 - 26.054 their conclusions are completely not supported by the record,

01:25 - 32.127 and that they departed from the record so far that it lacks honesty.

01:25 - 33.461 That's your argument?

01:25 - 38.133 Well, yes, in this particular case, not to mention the fact that the,

01:25 - 42.170 the city also contends, as Mr.

01:25 - 46.841 Rouse pointed out, that the parties negotiated the,

01:25 - 50.812 the definition, and the standard of review

01:25 - 53.982 of the the Police Civil Service Act

01:25 - 56.985 into, the collective bargaining agreement.

01:25 - 57.685 And as Mr.

01:25 - 01.856 Rouse pointed out, this court recently held that,

01:26 - 05.460 that that was not a viable argument.

01:26 - 09.497 We fought tooth for a couple of reasons, one of which the,

01:26 - 12.500 court said that there was no precedent.

01:26 - 17.038 Where, this language said language,

01:26 - 20.074 the just cause language had been, interpreted.

01:26 - 24.279 That's not entirely We disagree.

01:26 - 27.482 There are cases out there in the predecessor statute

01:26 - 31.653 where the just cause provision for police and fire had been,

01:26 - 35.323 had been discussed by the

01:26 - 38.326 courts, not only this court, but the Pennsylvania Supreme Court.

01:26 - 42.630 So there was a, mechanism for determining whether or not

01:26 - 45.633 how to define just cause under that statute.

01:26 - 50.605 And second, and more importantly, the record showed very clearly that the

01:26 - 54.108 that the judge court standard

01:26 - 57.145 was in section four B

01:26 - 59.647 this court agreed with that.

01:26 - 02.550 This court agreed that that language had been adopted

01:27 - 05.720 into the collective bargaining agreement on just court.

01:27 - 09.357 But that's not the language that the arbitration either.

01:27 - 12.760 Arbitrator in either case, that's not the language they interpret it.

01:27 - 16.297 They interpreted section four a

01:27 - 19.534 totally different section, almost like an error of law.

01:27 - 23.938 No. Well, Your Honor, their job is to determine honesty.

01:27 - 27.442 Well, well, on this issue, because this is a different issue.

01:27 - 31.813 The arbitrators job is to determine the parties intent.

01:27 - 37.852 Now, if you look at section one, D, it talks about an officer

01:27 - 43.024 can go before the Civil Service Commission if he's subject to termination.

01:27 - 46.160 And if you look at section five, the arbitrator

01:27 - 49.430 I mean the person can also go to arbitration.

01:27 - 52.500 The parties intent was to prevent

01:27 - 56.704 forum shopping that regardless of the forum they went to,

01:27 - 01.643 the officer would be subject to the same standard.

01:28 - 04.679 And by permitting the,

01:28 - 09.417 arbitrator to decide under section four A

01:28 - 14.989 instead of four B, that entire intent, that entire concept was destroyed.

01:28 - 17.692 Fact finding. I'm sorry.

01:28 - 21.329 The arbitrators were accused by the trial judge of dishonest fact finding.

01:28 - 22.497 What you're describing

01:28 - 24.799 is not fact finding.

01:28 - 26.334 Well, and that's true.

01:28 - 28.569 But I didn't raise it as fact finding.

01:28 - 30.338 I raised it in response to Mr.

01:28 - 33.675 Rouse's argument about what this court recently held.

01:28 - 36.711 So, that's that's what that point was.

01:28 - 38.680 Counsel, I just have a quick question.

01:28 - 41.416 I got permission from the. Okay. Thank you.

01:28 - 45.219 Because this is a very important case, I want to make sure I have it clear.

01:28 - 49.223 One of the findings by the individual arbitrator was that the,

01:28 - 52.060 that Mr. Rod, Mr.

01:28 - 56.030 Rogers was still combative at the time he was being put into the car.

01:28 - 58.199 They couldn't even have the medics look at.

01:28 - 02.036 Another fact finding was that he had cocaine in his system.

01:29 - 06.441 And those are findings we we can't refined right.

01:29 - 08.376 So you

01:29 - 12.146 reference Doctor Marlowe's, expert testimony

01:29 - 17.018 and he says the restraint, a asphyxiation was made through the Taser.

01:29 - 19.087 Okay. But we also know

01:29 - 22.357 and George Wallace clarified it was two times that he was tased.

01:29 - 27.228 So I'm not saying whether I did, you know, but agree with it or whatever.

01:29 - 28.396 It's not my call.

01:29 - 32.767 But the point is, if the finding is that Mr.

01:29 - 36.671 Rogers was combative and he had cocaine, we know that can be an issue

01:29 - 38.740 for, law enforcement.

01:29 - 40.575 If they're dealing with someone who has cocaine,

01:29 - 44.278 they can be much stronger violent than they normally would be.

01:29 - 47.348 And the finding is that he was combative.

01:29 - 50.818 Then you have a policy that says you're allowed to tase.

01:29 - 54.922 It is twice essentially from the record as you're shaking your head.

01:29 - 57.024 But that's what our record indicates.

01:29 - 00.428 So if doctor, I was saying that tasing caused the death is

01:30 - 05.600 is really an issue about whether tasing should be part of a policy

01:30 - 12.607 or whether, you know, the the officer here violated it.

01:30 - 15.610 He he followed that by only tasing twice.

01:30 - 21.149 Only I use carefully because that's there's no number in the policy.

01:30 - 24.886 But so he tased someone twice who was

01:30 - 26.621 found to be

01:30 - 29.624 combative and have cocaine in his system.

01:30 - 33.594 And very, very sadly, you know,

01:30 - 36.864 Doctor Morrow finds that the tasing was the cause of death.

01:30 - 41.636 But to me, this seems more a case about whether than tasing

01:30 - 44.705 is even something that should be permitted.

01:30 - 50.878 If that's a cause of death and not a just cause for violation of the policy.

01:30 - 53.881 But I looking forward to your answer. Okay.

01:30 - 59.387 With respect to the tasing, twice where that really comes from is

01:30 - 05.960 when the lieutenant arrived on the scene, Edmunds told him I hit him twice.

01:31 - 07.695 That's where that comes from.

01:31 - 10.698 The in the record is the the Taser.

01:31 - 16.704 The taser shots from the actual Taser missed, machine.

01:31 - 19.006 And I can look in the record and get that for you

01:31 - 23.978 from the critical incident review, board report that shows the number of time

01:31 - 28.316 that that Taser was engaged and made contact, and it wasn't twice.

01:31 - 34.455 So, I think there were two times that it didn't connect, but it was not twice.

01:31 - 37.758 So, we can we can put that to the side.

01:31 - 40.695 But the other thing is, Mr.

01:31 - 41.529 Rogers

01:31 - 45.032 was not combative in that car.

01:31 - 49.604 And anyone who reviews the video can see that, according to Mr.

01:31 - 51.939 Omalu, we make another finding.

01:31 - 52.573 I'm sorry.

01:31 - 54.275 Can we make another finding?

01:31 - 58.346 Well, it goes to the question of dishonesty.

01:31 - 59.780 You know you can.

01:31 - 04.085 And the arbitrator had the, videos, too, so it's not like he didn't.

01:32 - 05.386 And what Mr.

01:32 - 08.923 Omalu actually testified to is in that car.

01:32 - 12.960 Mr. Rogers was dying.

01:32 - 16.531 He was not combative.

01:32 - 21.002 He was dying, and his brain was losing oxygen.

01:32 - 22.069 And then.

01:32 - 24.839 And when that happens, he explains it all in his report.

01:32 - 29.644 And when that happens, the body, reacts in certain ways.

01:32 - 32.280 That man was not

01:32 - 33.714 combative.

01:32 - 36.050 He was requesting medical help

01:32 - 39.053 to the officers who was standing there

01:32 - 40.888 and who did not

01:32 - 45.593 and who did not give him

01:32 - 47.628 any assistance at all,

01:32 - 50.631 and basically let him die.

01:32 - 53.834 So he was not combative.

01:32 - 56.370 Thank you very, very much.

01:32 - 57.238 You sure? Thank you.

01:32 - 00.241 I appreciate it.

01:33 - 04.712 Thank you, Your Honor.

01:33 - 06.514 Short time to get through most of this.

01:33 - 08.749 Should we watch the video?

01:33 - 09.984 It's part of the referee's record.

01:33 - 10.985 You're free to do so.

01:33 - 13.387 You watch it, I did everything.

01:33 - 16.390 Is there everything that the party submitted of record is there.

01:33 - 19.794 So ultimately, a lot of the discussion that was had on

01:33 - 23.030 a police side was whether or not the Taser caused his death.

01:33 - 24.799 But when this court asked her

01:33 - 28.402 why they didn't charge the violation of the Taser policy, there was a pause.

01:33 - 30.738 Pregnant enough for me to read War and Peace in.

01:33 - 33.774 It's because they didn't think that the Taser actually caused his death.

01:33 - 37.878 And as Appellate Console stated today, officers plural

01:33 - 40.881 stood there and didn't provide medical care to him.

01:33 - 42.683 It wasn't just Officer Edmonds.

01:33 - 45.219 It was nine officers, which goes to Mr. Moore.

01:33 - 47.622 Kelly's argument about the sufficiency of training

01:33 - 49.023 and whether or not training was implicated,

01:33 - 51.025 plus a lieutenant on the scene.

01:33 - 53.494 Now, as for the, FOP,

01:33 - 57.398 he should have made that argument during the grievance arbitration

01:33 - 02.670 instead of waiting, so that there could be evidence presented.

01:34 - 05.272 So I wasn't present during the grievance procedure.

01:34 - 08.809 But as far as putting it in a grievance, the union doesn't even have to.

01:34 - 13.614 The way this policy works under the grievance policy for the CBA is

01:34 - 14.815 it's strange,

01:34 - 18.986 but they don't draft their own grievance for discipline that follows a Da.

01:34 - 22.790 So the union basically says, look, there's no just cause for discipline.

01:34 - 25.793 You as the employer have the burden of proof in order to show that.

01:34 - 30.264 So when you go through the Da process, step one and step two, they have to show

01:34 - 31.799 the city has to show that evidence.

01:34 - 33.901 They have to show what their policy violations are.

01:34 - 37.672 And contrary to council when they say, yeah, we just, you know, hit her.

01:34 - 40.241 Tatum generally with what they're violated against.

01:34 - 43.244 It's like well no you have to give us enough sufficient justification

01:34 - 46.580 to know why you're disciplining somebody so they can go in front of an arbitrator

01:34 - 49.483 and you can't use it as a catchall if you miss something.

01:34 - 53.187 Now, the United States Supreme Court, I wanted to point this out

01:34 - 56.490 with regard to dishonesty.

01:34 - 59.193 The United States Supreme Court and Major League Baseball Players

01:34 - 03.564 Association, which is 530 to us, 504, which is in my brief,

01:35 - 06.567 indicates that when an arbitrator resolves disputes

01:35 - 08.269 regarding the application of a contract

01:35 - 11.272 and no dishonesty is alleged, the arbitrator arbitrators imperfect

01:35 - 15.609 improvident even silly fact finding does not provide a basis

01:35 - 18.579 for reviewing court to refuse to enforce the award,

01:35 - 20.681 even serious error on the arbitrators part.

01:35 - 23.484 This part does not justify overturning his decision

01:35 - 27.254 and that dovetails with excessive powers where under neurosurgery,

01:35 - 31.225 even if the reviewing court disagrees with the underlying holding

01:35 - 34.495 of the lower court or the arbitrator in this case, the arbitrator,

01:35 - 36.497 even if it's an error or a factor,

01:35 - 40.167 an error of law, the reviewing court owes the award extreme deference.

01:35 - 43.437 So if you're going to show dishonesty, they're reviewing court.

01:35 - 48.309 In this case, a lower court has to clearly articulate this panel was dishonest.

01:35 - 50.144 They were liars. They were untrustworthy.

01:35 - 52.313 Anything else can be an error of law

01:35 - 55.883 or an error of fact that's not subject to review under neurosurgery.

01:35 - 58.119 Which is why when the initial decision came down,

01:35 - 01.255 the initial order that came down from Judge Hertzberg,

01:36 - 04.391 there was no elaboration on why he held that very basic.

01:36 - 08.562 And I immediately filed a notice of appeal immediately

01:36 - 10.464 was requested this file a concise statement.

01:36 - 13.167 And then Judge Hertzberg then issued a larger opinion.

01:36 - 16.670 But even in looking in Judge Hertzberg as opinion, he basically

01:36 - 18.339 I mean, you can read it yourself.

01:36 - 21.342 He basically says, no, I think that Edmonds causes that.

01:36 - 24.612 And I would I disagree with the medical experts

01:36 - 27.915 I would really like to find for the city, but my hands are tied.

01:36 - 28.549 I can't,

01:36 - 31.552 but I'm going to use this other way and say it was dishonest is due process.

01:36 - 33.287 In order to get around it.

01:36 - 36.023 And that's in my opinion, that's what happened.

01:36 - 39.894 And if if the lower court is going to give a fact finding analysis,

01:36 - 43.931 it has to be is at least in depth is what the arbitrator gave in the reviewing

01:36 - 47.802 court, didn't the case passing reference, if anything, to any of the union's

01:36 - 48.536 witnesses?

01:36 - 49.904 The reproduce record is huge.

01:36 - 52.306 It's thousands of pages plus videos.

01:36 - 55.609 And if you're going to have a dishonest finding by the lower court, at least

01:36 - 58.946 give it the same amount of attention and focus as the underlying arbitrator

01:36 - 01.916 did, who's ultimately tasked with making the initial determinations.

01:37 - 03.918 That's why extreme deference applies,

01:37 - 07.221 so that the courts aren't forced to go through the thousands of pages

01:37 - 10.758 of evidentiary reproduced records in order to do the case over again.

01:37 - 14.395 Well, normally we don't we don't have to go to that level

01:37 - 15.830 because of the extreme deference.

01:37 - 19.300 But what's unique in this case is the accusation of the false fact finding.

01:37 - 22.169 So at least for me, I would never speak for my colleagues.

01:37 - 23.070 When I was preparing,

01:37 - 26.006 I actually walked in with what I feel like is a bird's eye view.

01:37 - 29.577 So I'm going to have to and I'm glad to do it.

01:37 - 30.778 It's my role, actually.

01:37 - 34.048 Dig into the record, read the transcript, look at the videos,

01:37 - 38.185 and then determine if there was lies by the arbitrator.

01:37 - 41.355 Technically, what you're referring to, Your Honor, is the plenary standard.

01:37 - 44.625 A review for determining whether or not the four areas

01:37 - 47.328 and their assertion are implicated because the case law holds.

01:37 - 49.196 Look, the court is not going to be held

01:37 - 52.199 handcuffed to whether an arbitrator says there's no jurisdiction issue here.

01:37 - 55.903 So if a jurisdiction issue or an excess of powers due process

01:37 - 59.306 violation, irregularity proceedings that can be brought up in the court

01:37 - 02.776 does have a plenary standard review to at least look at the record.

01:38 - 06.180 But part of that also involves looking at the lower court's opinion

01:38 - 08.382 and finding out whether or not the lower court

01:38 - 11.318 had enough of a justification to determine that.

01:38 - 12.753 And in this case, we feel there wasn't

01:38 - 15.222 time.

01:38 - 15.589 That's it.

01:38 - 19.226 If unless you have any other questions now, thank you very, very much.

01:38 - 20.094 Thank you again.

01:38 - 22.363 Very well briefed, very well argued.

01:38 - 23.464 A very important case.

01:38 - 26.467 Very important case.

01:42 - 27.708 Good morning, Madam President.

01:42 - 28.509 And your orders.

01:42 - 30.811 And may it please the court.

01:42 - 33.013 I would like to reserve three minutes for rebuttal.

01:42 - 34.181 You have it.

01:42 - 36.116 My name is Richard de Blasio.

01:42 - 39.086 Counsel for the petitioner, Altoona Housing Authority.

01:42 - 42.289 And I'd like to preface this argument by stating that what occurred,

01:42 - 47.494 as a result of this work injury in May of 2017 was certainly a tragedy.

01:42 - 51.498 And petitioner extends its, well wishes to the injured worker, Mr.

01:42 - 52.533 Beckham Ball.

01:42 - 55.536 However, the issue before this court is who,

01:42 - 58.438 if any, entity is responsible under the Workers

01:42 - 01.808 Compensation Act for payment of workers compensation benefits.

01:43 - 06.180 The lower court, the workers compensation judge and then subsequently

01:43 - 09.416 the worker's compensation, a billboard found the my client,

01:43 - 13.720 the Altoona Housing Authority, was the statutory employer under 302A,

01:43 - 19.459 the relevant analysis that the, Supreme Court excuse me,

01:43 - 24.164 that the appeals board held, was that my client, the Altoona Housing Authority,

01:43 - 28.068 contracted, with Kyler contracting,

01:43 - 31.572 the direct employer of Garrett Beckham Mall.

01:43 - 34.708 And that, that and that he was injured,

01:43 - 39.146 during a regular and recurrent, part of the business of the Altoona

01:43 - 42.983 Housing Authority section 302A this court is probably familiar

01:43 - 44.618 with the six L's packing case.

01:43 - 47.788 Quite frankly, over the years since

01:43 - 53.227 Steve McDonald, factors for 302 be, which is the sister

01:43 - 56.930 statutory employer, section of the Workers Compensation Act.

01:43 - 01.034 The courts have gone back and forth, culminating in what I'll call

01:44 - 04.571 the 2012 case six L's packing, which stated

01:44 - 08.709 that really, the analysis focuses on regular and recurrent,

01:44 - 12.579 part of the business in the statutory employer context.

01:44 - 15.882 What I would submit to this court today,

01:44 - 18.652 this is a case, certainly a first impression.

01:44 - 21.655 And this case here, the the issue in this case

01:44 - 25.459 has not been presented, to my knowledge, to this court or the Pennsylvania

01:44 - 28.762 Supreme Court, and is certainly distinguishable from six L's packing,

01:44 - 32.065 not to

01:44 - 35.769 get into the weeds of all the facts, but there are some important facts here

01:44 - 39.339 that the court needs to consider and that the judges considered as well.

01:44 - 43.310 At the lower level, claimant worked for Kyler Contracting,

01:44 - 46.713 which was a roofing company in Altoona, Pennsylvania.

01:44 - 52.519 His father was one of the three owners of the Kyler contracting company.

01:44 - 55.789 In 2016

01:44 - 00.193 November 2016, Kyler Contracting was awarded a bid according

01:45 - 05.232 to an RFP request for proposal from Altoona Housing Authority to complete

01:45 - 09.536 a roofing project on the Fairview Fairview Hills Roofing project.

01:45 - 12.639 It's owned and maintained by the Altoona Housing Authority.

01:45 - 16.543 As a part of that contract and as a part of that request

01:45 - 20.747 for proposal, Altoona Housing Authority required the Kyler Contracting

01:45 - 25.585 submit certificates of insurance for both general liability and workers

01:45 - 29.890 compensation insurance for employees that would be working on that position.

01:45 - 33.460 Additionally, as part of the RFP and as required by HUD,

01:45 - 35.929 the funding source fell to the Housing Authority.

01:45 - 38.398 Potential

01:45 - 42.536 employees were to be submitted from Kyler to the Altoona

01:45 - 46.707 Housing Authority, to review a background check.

01:45 - 48.208 As part of that, you have to

01:45 - 51.945 would have to pass a criminal background check to be working on the project.

01:45 - 52.646 Can I jump in?

01:45 - 55.649 Because I know there's a lot of facts. Yes.

01:45 - 57.651 And I just have a couple of questions.

01:45 - 02.622 So there is a finding of fact that was

01:46 - 05.992 it was a part of their regular and recurrent business.

01:46 - 10.097 So the only way we can overturn a finding of fact is

01:46 - 11.665 if it's arbitrary and capricious.

01:46 - 16.203 So is there any evidence in the record or is not substantially supported

01:46 - 20.574 by the record that a as a part of its regular

01:46 - 24.177 and reoccurring business was in the roofing business?

01:46 - 29.082 Well, judge, I would submit to you that before we even get to that analysis,

01:46 - 32.486 one of the things that the courts need to consider, and this is where

01:46 - 36.223 the distinction lies from six is packing is claimant.

01:46 - 38.492 And there's a finding to this as well.

01:46 - 41.595 Was aware that he was not permitted to be on that property.

01:46 - 47.067 Oh, but is also a finding that says, the JFL claimant credible

01:46 - 51.471 and accepted claimant's testimony that he was told to blend in air quotes.

01:46 - 53.607 Though he was not

01:46 - 56.610 approved to be to work on the job. So.

01:46 - 00.714 Well, it was like later he was verbally given

01:47 - 03.784 permission and and I realized there was a conflict.

01:47 - 04.050 Right.

01:47 - 06.420 So the Housing Authority person

01:47 - 09.156 later said, I don't remember if I ever told him that,

01:47 - 13.393 but that's not up for us to decide because the WSJ believed claimant

01:47 - 17.497 and I think his father as well, that he was told just blend in.

01:47 - 20.634 Well, the claimant was not directly told

01:47 - 23.937 by an individual from the Altoona Housing Authority judge.

01:47 - 24.571 And again,

01:47 - 29.042 I would argue, that that conversation that that goes into credibility.

01:47 - 32.379 And I know that's not the purview of the court, however,

01:47 - 37.117 if you if you read the findings of fact by the judge, the claimant,

01:47 - 42.522 testified that he overheard a conversation between

01:47 - 46.893 a, Altoona Housing Authority employee and his father, Robert Beckenbauer.

01:47 - 50.897 So there was no direct conversation between an Altoona Housing

01:47 - 53.200 Authority employee and the claimant.

01:47 - 56.269 But now you're you're arguing a credibility determined.

01:47 - 58.338 And that was clearly made.

01:47 - 02.576 So I actually was going with another credibility determination that was made.

01:48 - 03.610 And I don't know how

01:48 - 05.912 you dispute

01:48 - 11.117 something where the made a credibility determination when there is record

01:48 - 15.355 evidence as to the finding in that particular instance.

01:48 - 20.460 Well, certainly judge and there's also though also the judge found

01:48 - 24.498 that the claimant was aware and the WkbW noted this as well.

01:48 - 27.667 And their decision that he was not permitted on the property.

01:48 - 30.136 And I don't think there's a dispute to that,

01:48 - 33.773 but I'm concerned whether or not the other credibility determination

01:48 - 38.578 that he was told to blend in doesn't negate what his knowledge was.

01:48 - 42.349 Well, again, and then and I'm not I don't think that's really the issue

01:48 - 43.950 in front of us. Right.

01:48 - 47.420 So I'd like to go back to the question that I asked you.

01:48 - 51.491 Is there is it arbitrary and capricious for the finding that was made

01:48 - 55.228 as to whether or not RH a regular

01:48 - 58.431 and reoccurring business, is replacing Ruth?

01:48 - 59.666 Yes, judge.

01:48 - 03.703 And I would argue that, the claimant who has the burden here still,

01:49 - 05.539 even though it's a statutory employer,

01:49 - 08.742 they still have the burden of proving all the elements of the work injury existed,

01:49 - 13.079 including that the statutory employer was, in fact, a statutory employer.

01:49 - 16.716 I don't believe that they they've reached that burden.

01:49 - 20.654 And again, I think it's because we go to the point,

01:49 - 23.857 and I know that, there's some conversation on whether

01:49 - 26.893 or not we're going into to a credibility determination.

01:49 - 30.564 I think what the WCA be noted here is the

01:49 - 34.267 claimant was aware that he was not permitted on the property.

01:49 - 39.506 And therefore, as soon as he stepped on the property, he becomes a trespasser.

01:49 - 42.642 And to me, I think that that gets more into

01:49 - 46.947 whether or not that is a statutory employer, analysis.

01:49 - 51.751 But to answer Judge Kirby's question, can you tell us if it's an obligation of a

01:49 - 55.655 to maintain safe and habitable?

01:49 - 58.625 Housing for its residents?

01:49 - 01.628 And was this contract with was it Cuyler?

01:50 - 06.533 Was this an ongoing contract for all roofing or was it just this one

01:50 - 12.806 particular this this contract specifically was for one, specific, what I'll call

01:50 - 16.843 building that, or complex that Altoona Housing Authority does maintain.

01:50 - 18.411 And I would submit Altoona Housing

01:50 - 21.648 Authority is a public entity providing public housing.

01:50 - 27.687 I don't think the records suggest or confirm what is regular or.

01:50 - 31.324 Excuse me, I don't think the courts have completely defined

01:50 - 34.327 what is regular and recurring, what was maintained.

01:50 - 36.930 There's a obviously a standard to maintain.

01:50 - 38.765 Safe and habitable.

01:50 - 40.700 Yes, sir. Yes.

01:50 - 44.104 So is that an obligation of the

01:50 - 48.308 is that it's ties in dovetails

01:50 - 53.046 with the finding that it's a recurring I would say that that is an obligation.

01:50 - 56.049 But whether or not it is a regular and recurring obligation,

01:50 - 00.353 I think we need to have a definition of what regular and recurring is.

01:51 - 04.658 I think the issue is whether or not they're in the business of roofing,

01:51 - 07.193 and that's what it comes down to.

01:51 - 11.231 And so the question is whether or not there is evidence in the record

01:51 - 15.502 to support the finding that it was regular and recurrent.

01:51 - 19.339 And I guess the evidence that was relied upon was that the individual,

01:51 - 23.276 the supervisor from went up on the roof and turned a shingle over.

01:51 - 26.312 Well, I don't know, because you turned a shingle over.

01:51 - 27.247 Does that mean that they're

01:51 - 31.418 in the business of roofing and, you know, is there a sufficient record evidence?

01:51 - 35.755 And so, yeah, you can write all that, but I ask you the same question that does.

01:51 - 37.824 I really think that's what this case comes down to.

01:51 - 39.459 And that's the heart of it.

01:51 - 43.530 And which also makes it different than some of the other cases that we've heard.

01:51 - 44.464 Right.

01:51 - 45.432 And certainly does it.

01:51 - 47.967 And I and I think that that is an important aspect of this,

01:51 - 53.306 but I don't want to to lose the fact that it is also very important to me.

01:51 - 58.511 And, and I think to this case, because it the courts haven't decided on this is

01:51 - 02.582 if the claimant was in fact a trespasser,

01:52 - 04.451 he he trespass immediately

01:52 - 07.887 as he was on that property, but did his father give him permission

01:52 - 11.157 and his father was the one that was in charge.

01:52 - 13.693 So how does he doesn't he become an invitee?

01:52 - 17.630 Well, his father was also well aware, as in him,

01:52 - 22.168 as the employer of Kyler Contracting, who was told twice by the Altoona

01:52 - 25.705 Housing Authority that his son was not permitted on the job.

01:52 - 28.808 And, due to the failed criminal background check.

01:52 - 32.078 And this is on the record, he testified to it

01:52 - 35.014 that he went back to Altoona Housing Authority

01:52 - 38.818 even after their initial determination asked them to reconsider.

01:52 - 42.088 And Altoona Housing Authority said, we cannot do that.

01:52 - 43.556 We're not he's not right.

01:52 - 45.225 I, I agree with all that.

01:52 - 48.695 My concern is, doesn't that then take claimant out

01:52 - 52.632 of being a trespasser because his father, who was permitted to be there

01:52 - 57.237 and was the supervisor of the job, said, sure, you can go on,

01:52 - 01.775 you can work well there and paid him, understandably.

01:53 - 04.978 But as a as it relates to the Altoona Housing Authority

01:53 - 08.148 claimant was still trespassing and his father

01:53 - 11.684 should not and admitted this in June of 2017.

01:53 - 13.119 That that's in the record as well.

01:53 - 17.824 Admitted to this in a correspondence to the Altoona Housing Authority board

01:53 - 21.694 that it was his sole decision to bring the claimant,

01:53 - 26.199 on the roof that day and asked, the Altoona Housing Authority

01:53 - 29.402 to reconsider their position that Kyler breached the contract.

01:53 - 32.405 And I think it's what makes this case so challenging is that

01:53 - 37.076 it appears that they did all the background checks, did

01:53 - 40.046 all the necessary requirements to ensure that everybody

01:53 - 43.016 was covered by worker's comp, and then they have this tragedy.

01:53 - 45.952 Yeah. And judge said it is.

01:53 - 47.086 And that's what makes this case.

01:53 - 48.154 We were joking.

01:53 - 51.758 Opposing counsel during the, the fact finding, discovery was

01:53 - 53.526 this is a law school fact pattern.

01:53 - 55.061 Given

01:53 - 58.064 all the situation and on top of everything, unfortunately,

01:53 - 02.235 one of the aspects of this case is that Kyler Contracting has since gone bankrupt.

01:54 - 06.673 So there is no recourse for Altoona Housing Authority to recover anything.

01:54 - 11.511 So what happens then, if we would rule in your favor, would claimant

01:54 - 15.315 then be entitled to benefits under the state fund?

01:54 - 17.584 Yeah, I think he would be honored under the,

01:54 - 21.688 I think that that's clear as day because there was no, insurance for him.

01:54 - 25.124 And there's no statutory employer relationship,

01:54 - 27.293 and UGS would be responsible.

01:54 - 31.231 So the other cases that were decided by the Supreme Court wasn't their concern

01:54 - 34.767 that there would be no financial ability to help claim it.

01:54 - 39.372 And that's why they wanted to ensure the, the, the the,

01:54 - 41.341 the current and

01:54 - 44.911 reoccurring business foundation that the claimant would have coverage.

01:54 - 49.983 But here it appears that they did everything that it was required to do.

01:54 - 53.953 So it doesn't it take this case away from the Supreme Court cases.

01:54 - 55.889 It doesn't have the same concern.

01:54 - 56.756 Exactly. Judge.

01:54 - 00.393 And briefly, if I may, that the legislative intent

01:55 - 06.199 behind the statutory employer concepts is clear as day and six owl packing notes.

01:55 - 09.202 This is that you know

01:55 - 13.606 it is you don't want to give an employer a contract or is what they called it,

01:55 - 16.910 a free walk for not ensuring

01:55 - 19.512 that the subcontract or did not are

01:55 - 22.515 had worker's compensation insurance if that happened here.

01:55 - 27.387 And so it's a very unfortunate incident and I don't think I do

01:55 - 28.421 think that this is a case

01:55 - 32.191 of first impression with regard to, first of all, the trespass or issue.

01:55 - 35.628 But then second of all, Altoona Housing Authority did everything

01:55 - 40.533 it could under its power, in my opinion, within reason to

01:55 - 44.637 how is this case different though from cases are Supreme court has ruled in

01:55 - 48.207 where are there are for example, those on premises working

01:55 - 50.109 that don't have the legal status to be there?

01:55 - 54.213 Let's say, someone who has immigration status that doesn't permit them to work.

01:55 - 55.715 Those cases indicate

01:55 - 59.419 that they are able to collect worker's compensation from their employer.

01:55 - 02.655 If that were the situation here and you were the statutory employer,

01:56 - 03.723 how would that be different?

01:56 - 08.995 Well, I would argue in those cases there's no explicit, communication to,

01:56 - 13.433 the, the subcontractor or the employee equal reason

01:56 - 17.937 for a lack of permission to work that everyone should be aware of

01:56 - 19.706 was will.

01:56 - 20.373 Certainly.

01:56 - 21.741 But there was the

01:56 - 25.578 this isn't necessarily a legal reason why the claimant wasn't permitted to work.

01:56 - 26.245 Judge.

01:56 - 29.549 This was a work funded by HUD.

01:56 - 33.186 HUD requires us to do criminal background checks on potential employees.

01:56 - 36.856 And therefore, you know, you didn't pass your criminal background check.

01:56 - 38.825 We don't want to jeopardize our funding.

01:56 - 40.760 You're not permitted on the property.

01:56 - 45.098 You can't keep your funding, though, if you don't have the criminal background

01:56 - 48.901 check, unless you establish the person's able to be there on premises, correct.

01:56 - 51.604 Thank you very much.

01:56 - 54.607 Thank you.

01:57 - 06.853 May it please the court?

01:57 - 08.087 My name is David Kraft.

01:57 - 11.090 I represent the Uninsured Employers Guarantee fund.

01:57 - 13.626 It's our position that the judge got this one right.

01:57 - 15.962 Will you be splitting your time at all?

01:57 - 21.034 Yes. I'll try to get this done in eight minutes, and we'll give him seven breaths.

01:57 - 23.836 And you're just splitting with one other.

01:57 - 24.337 Okay.

01:57 - 27.373 Thank you.

01:57 - 31.044 There are essentially four elements to establishing statutory

01:57 - 34.714 employer liability under section 302A of the act.

01:57 - 37.917 First, there needs to be a contract for work.

01:57 - 39.752 Obviously, we have that here.

01:57 - 43.689 Altoona Housing Authority contract it with Kyler Contracting

01:57 - 46.926 to replace six roofs on one of his housing projects.

01:57 - 52.865 The second issue is whether they'll work with regular and recurrent, here.

01:57 - 58.905 Altoona Housing Authority Supervisor James Stevens testified that roof replacement

01:57 - 03.109 was a recurrent business activity for Altoona Housing Authority.

01:58 - 06.579 The judge accepted that testimony as a fact,

01:58 - 08.915 and that finding fact was not challenged on appeal.

01:58 - 11.084 So I believe that issue is dead.

01:58 - 15.254 The third issue is whether the subcontractor is uninsured.

01:58 - 17.023 And here it certainly is.

01:58 - 18.624 And that just on an appeal issue,

01:58 - 22.295 the fourth issue is whether claimants

01:58 - 25.298 work as a part of Altoona Housing Authority, as business.

01:58 - 30.269 I would emphasize that the product here for Altoona Housing Authority is housing.

01:58 - 32.338 That is its product.

01:58 - 36.609 That is what it is selling, and it is hiring Tyler housing.

01:58 - 36.976 Right.

01:58 - 41.347 So I would say I'm saying the product for every business has a product.

01:58 - 45.685 And for Altoona Housing Authority, it's housing for low income individuals.

01:58 - 49.856 Kyle Controls isn't isn't the question what

01:58 - 53.359 whether or not they were in the business of roofing?

01:58 - 55.194 No, I don't believe so.

01:58 - 58.197 Because in six hours, you may recall

01:58 - 02.969 the alleged statutory employer was a farming industry.

01:59 - 05.438 They were like in tomatoes.

01:59 - 08.107 They pack tomatoes or cans. They had farms.

01:59 - 10.610 And then the common law employer in that case

01:59 - 13.613 was a transportation company like Garcia Trucking or something.

01:59 - 17.617 And Garcia, I'm sorry,

01:59 - 22.121 six else argued that, hey, we don't make money on transportation.

01:59 - 24.056 We don't own trucks.

01:59 - 25.691 We don't hire truck drivers.

01:59 - 28.427 How can we be in the trucking business?

01:59 - 30.696 And the courts rejected that argument.

01:59 - 31.931 They found six else to be

01:59 - 35.334 a statutory employer, because the transportation of the tomatoes

01:59 - 38.804 was a regular and essential part of their business.

01:59 - 42.508 We also have the Zwick case and Zwick.

01:59 - 45.478 We had a real estate developer.

01:59 - 49.649 Let me ask you, isn't it different if a company or a business

01:59 - 52.618 has to transport on a regular basis?

01:59 - 58.157 But here there was testimony that they replaced roofs every 20 or 30 years.

01:59 - 01.460 So it's not a regular basis here.

02:00 - 04.597 It was only one roof, one contract.

02:00 - 09.368 It wasn't like they contract it with them continuously for all the roofs.

02:00 - 13.673 I know there was a plan to possibly do that, but that's not the facts.

02:00 - 16.309 Well, for starters, I would

02:00 - 18.878 argue that this issue wasn't even raised in the appeal.

02:00 - 22.081 In fact, there are only two specific issues before the court.

02:00 - 26.219 One is whether there's this violation of a rule, and two,

02:00 - 29.488 whether there's some sort of fixed site exclusion or owner exclusion.

02:00 - 35.194 The terms of the statute are regular or recurrent,

02:00 - 38.798 and I take that to mean it has to be some kind of routine, normal

02:00 - 41.801 activity or something that's repeated over and over again.

02:00 - 43.603 And here, Mr.

02:00 - 47.740 Stevens, one of the maintenance supervisors for Altoona Housing Authority

02:00 - 51.777 testified the Altoona Authority, Altoona Housing Authority has,

02:00 - 54.981 replaced a lot of roofs over the years.

02:00 - 57.116 They do it every every couple of years.

02:00 - 59.252 They start a new project.

02:00 - 00.686 But he also testified that,

02:01 - 03.589 I mean, it's

02:01 - 05.358 basically known you probably could almost

02:01 - 08.361 take judicial notice of it, that unless you have a bad roof,

02:01 - 11.364 you're going to replace your roof every 20 or 30 years.

02:01 - 14.433 And he also testified to that. Right.

02:01 - 18.371 But that would still constitute a repeated recurrent replacing of roofs.

02:01 - 22.975 And also it's still part of it's an expected regular business occurrence.

02:01 - 24.577 It's an expected business expense.

02:01 - 27.580 They know they have to replace these roofs every 20 years.

02:01 - 29.949 And that's just the big roof replacements.

02:01 - 33.319 Of course, there is just general upkeep of the roofs, which also happens.

02:01 - 36.555 And a more frequent basis, which, that work

02:01 - 40.059 would be carried out by the, maintenance employees of Altoona Housing Authority.

02:01 - 43.062 They had their own maintenance department, had eight employees,

02:01 - 46.299 and these employees also would work on the roof and fix, like,

02:01 - 49.302 leaks and, you know, loose shingles and that sort of thing.

02:01 - 54.006 I think it's different replacing a roof versus periodic repair.

02:01 - 59.645 But let me ask you if if we didn't find a way to be the statutory employer,

02:02 - 03.582 would the fund then cover claim its benefits,

02:02 - 10.389 be obligated to probably, unless the court

02:02 - 15.494 were to say that the violation was like a violation of the positive work order.

02:02 - 17.697 Claimant knew of a rule and violated it

02:02 - 20.966 anyway, which is contrary to the actual findings of fact in this case.

02:02 - 25.171 But if the court would somehow find that there was a violation of a positive

02:02 - 28.274 work order, then the claimant would get no benefits at all from anyone.

02:02 - 31.811 But if it's a question, should

02:02 - 34.347 Altoona Housing Authority or UHF pay benefits?

02:02 - 37.316 I think the equities are certainly in our favor.

02:02 - 41.053 Altoona Housing Authority picked Kyler Contracting to do the work.

02:02 - 44.023 They were in a position to patrol the work site.

02:02 - 44.990 They were in a position

02:02 - 48.527 to make sure that people on site had workers compensation insurance.

02:02 - 52.064 They were deciding equity, were deciding as a matter of law.

02:02 - 53.299 Right.

02:02 - 54.266 But I am saying

02:02 - 58.104 that I think the law is on our side, and the fairness is to be considered here.

02:02 - 58.804 Let me ask you.

02:02 - 01.407 So light asked the same question to opposing counsel.

02:03 - 03.542 The fact that the

02:03 - 06.445 the Supreme Court has issued its prior decisions

02:03 - 09.448 in similar cases, and they said the concern was to make sure

02:03 - 12.551 that subcontractors, employees had workers comp

02:03 - 15.888 insurance coverage and to make sure

02:03 - 19.825 that the contractor and the subcontractor all work together according to law.

02:03 - 24.830 So here it appears that they did everything that it was required to do

02:03 - 28.401 and ensuring that there was worker's compensation coverage.

02:03 - 30.903 Do you think those cases are

02:03 - 34.407 distinguishable from the incident matter, and would it be a slippery slope

02:03 - 39.044 where an employer does take the necessary steps to comply with the law

02:03 - 42.047 and is still found to be a statutory employer?

02:03 - 46.419 Well, I believe the court has in part already addressed this issue

02:03 - 49.121 in a case called rebuild a Boles, which is an unreported case.

02:03 - 52.825 But in that case, he did point out that if the General Assembly had wished

02:03 - 57.263 to eliminate statutory employer liability with the creation of the UG,

02:03 - 00.266 if they could have done so, but they didn't, they kept

02:04 - 03.969 section 302A and B in the Workers Compensation Act.

02:04 - 08.441 So there's nothing about the creation of EGF that would lead to a conclusion

02:04 - 12.278 that they intended to somehow lessen statutory employer liability.

02:04 - 15.881 That's what we builders actually went the other way that it

02:04 - 19.251 supports, appellant's position rebuild the BLS.

02:04 - 21.854 Yes, I had the case here I can that's okay.

02:04 - 22.721 We don't need to take time.

02:04 - 25.424 We can both go back and read it afterwards.

02:04 - 26.592 Okay.

02:04 - 29.328 For getting back to my other point, though,

02:04 - 32.498 I mean, in Zwick, we had a case where, the individual,

02:04 - 36.368 the statutory employer was basically an investor.

02:04 - 39.605 He bought properties to flip them, and he hired people

02:04 - 44.443 to basically rehab, his properties so he could get a higher value.

02:04 - 48.747 In that case, Swick argued, hey, I don't make money on construction.

02:04 - 50.516 I'm not in the construction business.

02:04 - 52.785 I don't employ carpenters.

02:04 - 54.787 This is a completely different business.

02:04 - 55.855 And the court

02:04 - 00.926 this court concluded that no rehabbing properties is part of your business.

02:05 - 02.328 You may call yourself an investor,

02:05 - 06.098 but still, it's still a regular return, a part of your business to do this work.

02:05 - 11.637 And therefore, we are going to find it to be section 302, a liability for his work.

02:05 - 16.509 We also hear an argument from Altoona.

02:05 - 22.047 I mean, they did argue a second item besides the the violation, the rule.

02:05 - 25.918 They're arguing for a fixed site exclusion zone or exclusion.

02:05 - 29.321 I think it's pretty clear under the case law that there is no owner

02:05 - 32.324 exclusion or fixed site exclusion.

02:05 - 37.062 Under section 3028, that is purely limited to section 302 B,

02:05 - 40.366 and I don't think we should be even discussing that anymore in light of,

02:05 - 43.369 the six L's case from the Supreme Court.

02:05 - 47.106 And as far as the violation, the rule again,

02:05 - 51.176 claimant overheard a conversation from one of Altoona Housing Authority

02:05 - 57.116 agents saying it was okay for unapproved individuals to be on that work site.

02:05 - 00.419 So claiming heard that.

02:06 - 01.220 Understood.

02:06 - 04.223 An exception was being made for Tyler Contracting.

02:06 - 08.627 And the judge found that testimony the test might presented

02:06 - 12.598 by claiming in his father to be credible that an exception had been made.

02:06 - 15.868 They rejected any, suggestion from Altoona housing

02:06 - 18.871 Authority's witness that no exclusion had been made.

02:06 - 21.607 So we feel this just straight credibility termination.

02:06 - 25.778 Thank you very much.

02:06 - 29.014 Thank you.

02:06 - 33.652 Good morning.

02:06 - 35.621 May it please the court? My name is Zachary Agard.

02:06 - 37.556 I am, counsel for claimant Garrett.

02:06 - 38.791 Back and forth,

02:06 - 42.027 and I think I might be the first one to not use all of my time this morning.

02:06 - 46.565 I want to tailor my time to, specifically just to address

02:06 - 50.269 the allegations or the argument that my client was a trespasser.

02:06 - 52.638 I want to revisit that.

02:06 - 55.574 The workers compensation judge is the ultimate fact finder.

02:06 - 58.978 Credibility determinations are solely his or her own

02:06 - 02.047 and are not to be disturbed unless arbitrary and capricious.

02:07 - 05.818 There's been no allegation that his fact finding or his credibility determinations

02:07 - 07.553 were arbitrary or capricious.

02:07 - 10.956 And in fact, the Appeal Board addresses that head on, saying that the fact

02:07 - 12.858 that there might be an alternative,

02:07 - 16.061 way to interpret the facts does not mean that that's grounds for reversal.

02:07 - 17.930 There's substantial and competent evidence,

02:07 - 20.332 which is just evidence that a reasonable person could use,

02:07 - 22.234 that would

02:07 - 27.206 lead them to draw the same conclusions here. Mr.

02:07 - 30.209 Beck involved was credited to be a, and I should say,

02:07 - 32.611 claim that Garrett Beck Campbell was created to be credible.

02:07 - 34.713 So was his father, Robert.

02:07 - 37.316 And I think that's been addressed already.

02:07 - 40.052 Quite a bit, but something that hasn't been brought up is,

02:07 - 44.156 Greg Stetler, who was the Altoona housing authorities, acting

02:07 - 47.126 supervisor in place of James Stevens.

02:07 - 52.164 Robert Beck and Barr testified that as well as well let me revisit

02:07 - 57.569 we touched on claimant's, conversation that he overheard with, Mr.

02:07 - 59.304 Stickler and Mr.

02:07 - 01.340 Beck and Ball, Robert back and Barr,

02:08 - 04.476 Robert Beck and Bob also testified that prior to,

02:08 - 07.546 beginning the job in question,

02:08 - 09.982 Greg Stetler told him that unapproved workers could work

02:08 - 12.251 because the Housing authority was having a very difficult time

02:08 - 14.720 finding enough people that could pass the background check.

02:08 - 17.156 Moreover, Greg

02:08 - 20.192 Stickler testified that he supervised the work on a daily basis,

02:08 - 23.195 and he was up on the roof from which my client fell.

02:08 - 28.000 Robert Beck and Bob testified that, it's a very small roof.

02:08 - 29.968 There was only four people up there at one time

02:08 - 32.071 in which Greg Stetler was also up there.

02:08 - 34.473 My client was upset because I wasn't there.

02:08 - 35.941 Also, testimony from Mr.

02:08 - 38.110 Stetler that he was on vacation that day.

02:08 - 40.879 On the day that my client cell, he was on vacation.

02:08 - 43.882 So this was prior to the fall.

02:08 - 45.184 It was a small roof.

02:08 - 48.020 There were four people up there, one being Greg Stiller. One day.

02:08 - 51.023 Had they been on the job before your client fell?

02:08 - 54.259 One. It was the second day on his job.

02:08 - 55.427 That's what I thought.

02:08 - 56.361 So there would have

02:08 - 59.865 been only one other opportunity that he would have seen him there

02:09 - 01.667 to be on the roof. Correct.

02:09 - 03.669 Prior to that, that they were delivering materials

02:09 - 07.039 as my understanding, and people were there unloading things like that.

02:09 - 12.978 So the upshot of this testimony is,

02:09 - 16.782 I've heard that the, Altoona Housing Authority did everything they could

02:09 - 20.352 to ensure that worker's comp, was secured and followed.

02:09 - 21.954 I don't think that's the case.

02:09 - 25.858 If the testimony that the worker's compensation judge found to be credible,

02:09 - 27.359 is true, and that's that.

02:09 - 29.595 Greg Stiller, who was the acting supervisor,

02:09 - 32.431 was very well aware that, unapproved workers were working.

02:09 - 33.966 He, in fact, encouraged it.

02:09 - 36.969 He had a job to get done, and he needed bodies on these roofs.

02:09 - 39.538 He saw my client up there,

02:09 - 44.009 and he actually encouraged Robert Beckenbauer to, not just my client, but

02:09 - 47.513 also other workers, that were not approved

02:09 - 50.916 or passing the background check.

02:09 - 56.221 Moreover, I think the appeal board addresses this,

02:09 - 59.391 eloquently and directly.

02:09 - 02.294 I think it's a red herring as to whether he was, trespassing or not

02:10 - 04.930 or whether he was allowed to be there or he was not.

02:10 - 08.200 The relevant inquiry under 3 or 2 way is the nature

02:10 - 11.236 of the business relationship, which has been visited, quite a bit.

02:10 - 14.239 Was this a recurrent, irregular part of their business?

02:10 - 19.211 Attorney Craft already let me ask you, because, I went back to my notes.

02:10 - 25.751 So the rebuild case, the owner of the property in that case was 7400.

02:10 - 27.019 Roosevelt.

02:10 - 30.656 And our court decided that because 7400

02:10 - 34.693 Roosevelt was not in the business of installing carpet,

02:10 - 38.263 it was in the business of property ownership and management.

02:10 - 43.402 We held that 7400 Roosevelt was not the statutory employer.

02:10 - 45.971 Is there any similarity between that case? In this case?

02:10 - 49.975 It's all open to interpretation, Your Honor.

02:10 - 51.810 I don't think so.

02:10 - 53.846 I think that the irregular and recurrent business

02:10 - 56.582 is not just installing roofs, as Your Honor has put it.

02:10 - 58.650 It's maintaining the roofs.

02:10 - 00.252 They had a maintenance department.

02:11 - 03.622 They had multiple witnesses from the Altoona Housing Authority confirm.

02:11 - 06.859 Isn't there a difference between maintaining a roof and installing

02:11 - 09.862 the whole roof?

02:11 - 12.397 They didn't always maintain the roofs themselves.

02:11 - 14.099 I think they outsourced a lot of the work.

02:11 - 14.933 If it was,

02:11 - 17.803 something the maintenance department could perform on their own,

02:11 - 19.671 they had someone in-house that could do that.

02:11 - 22.674 And in fact, Greg Stiller was up on the roof directing work.

02:11 - 26.278 I that show that they were not in the business.

02:11 - 27.813 Then a roofing.

02:11 - 29.615 They were in the business of providing housing.

02:11 - 34.586 Well, respectfully, Your Honor, I think if you're in the business of providing

02:11 - 37.556 housing, you're in the business of providing a solid roof overhead.

02:11 - 40.826 Would it be any different if, say,

02:11 - 43.562 an insurance company owned their own building?

02:11 - 44.897 Clients come in there.

02:11 - 47.900 They have an obligation to provide a safe place,

02:11 - 51.236 you know, to meet their clients or say it was,

02:11 - 54.339 for drug rehabilitation.

02:11 - 00.279 You know, some another public policy, a public, purpose.

02:12 - 04.816 And they were having maintenance work done on their, their roof

02:12 - 08.620 because it they need to keep it safe

02:12 - 12.858 for the clients or the, you know,

02:12 - 17.329 people who are the patients.

02:12 - 22.567 So does that make them now in the business of, in the regular

02:12 - 27.172 and recurring business of maintaining roofs, like take it out of the

02:12 - 31.276 the the box that this happened to be a housing authority,

02:12 - 34.413 government entity providing,

02:12 - 37.416 you know, a drug rehab center

02:12 - 40.519 or a halfway house or anything like that.

02:12 - 44.456 Are they also in the business of

02:12 - 47.492 of a recurring business and regular,

02:12 - 50.796 providing roofing?

02:12 - 54.266 Well, I'll try to take it out of the box, but I think the box is important here.

02:12 - 58.437 And I think the verbiage about a halfway house, they live in those

02:13 - 02.941 got to have a roof over halfway house.

02:13 - 03.508 Certainly.

02:13 - 07.646 And the question is, is, is maintaining roofs or installing

02:13 - 11.316 roofs a regular or recurrent part of the housing authorities business?

02:13 - 14.486 How about a halfway house?

02:13 - 17.756 I think that it would be because they're building a rehab center.

02:13 - 21.026 Well, if the business is housing people, providing a safe

02:13 - 24.029 and habitable place, a hospital.

02:13 - 26.732 I think that you could make the argument

02:13 - 30.702 that maintaining a safe and effective roof

02:13 - 33.705 is a regular and recurring part of their business,

02:13 - 36.074 not necessarily that they're in the business of roofing,

02:13 - 39.778 but that's a regular and recurring part of maintaining a hospital.

02:13 - 40.946 Oh, okay.

02:13 - 46.385 I think the more we use other examples, more difficult it is to fit that in.

02:13 - 47.786 But fair enough.

02:13 - 50.355 Okay. No, I appreciate your argument.

02:13 - 51.223 You're doing a good job.

02:13 - 53.992 There's 10s.

02:13 - 56.728 No, I'm 12 seconds over, so I didn't get it done.

02:13 - 58.997 I apologize, that's all my time. They ask too many questions.

02:13 - 02.000 When you said that you were going to be sorry.

02:14 - 06.104 Thank you, thank you, thank you.

02:14 - 10.675 Thank you, Madam President.

02:14 - 10.942 Judge.

02:14 - 14.212 And your honor, you know, it's interesting here.

02:14 - 19.184 My my my colleagues here talk about the contract is one of the aspects of,

02:14 - 22.254 statutory employer, one of the elements.

02:14 - 25.557 Well, I think you could argue you can make the argument

02:14 - 28.693 that as soon as an employee that was not permitted

02:14 - 32.364 to be on the property, and that was,

02:14 - 37.069 that information was provided to Tyler Contracting

02:14 - 40.739 as soon as he enters the property, they're in breach of a contract.

02:14 - 44.976 I don't think that's your strongest argument, because at first blush, again,

02:14 - 48.747 once we delve into this further, sometimes our opinions change.

02:14 - 50.882 At first blush, I thought you were correct,

02:14 - 54.953 but the fact that the statutory employer at first did what it was supposed to,

02:14 - 58.924 but then later said, we know you're you want to be here lawfully,

02:14 - 59.891 but go ahead, come on.

02:14 - 04.996 Blunden and the ICJ found that to be true, whether regardless of it was overheard,

02:15 - 06.731 I know the finding was in the passive voice.

02:15 - 09.334 Doesn't matter. We have a credibility to termination.

02:15 - 11.069 I don't think that's your strongest argument.

02:15 - 11.770 I think you need to

02:15 - 15.107 focus on the business of the part that Judge Cove is focused on.

02:15 - 20.479 Well, and I would agree with you, judge, I but I do think that this does have a

02:15 - 23.815 a play in the analysis, because this is the first time

02:15 - 27.018 that this court has is come across this type of scenario.

02:15 - 29.654 So I do think it is part of the analysis.

02:15 - 33.658 But to your point, with regard to the regular and recurrent,

02:15 - 36.862 aspect of 302A

02:15 - 41.433 one thing that we haven't heard, from my colleagues over here is,

02:15 - 42.901 when was the last time

02:15 - 46.438 Altoona Housing Authority did a, full job roof replacement?

02:15 - 51.209 That that's not, submitted into into the evidence that,

02:15 - 54.679 that I'm aware of, or no findings of fact to that effect.

02:15 - 57.916 So at that point, you know, the question

02:15 - 00.952 then becomes, is the what is regular and recurrent?

02:16 - 06.291 And in my review of of the case law, I don't think that there is an objective

02:16 - 10.495 standard that has been set, by this court or the Pennsylvania Supreme Court.

02:16 - 12.497 So is that a substantial evidence argument,

02:16 - 14.466 then?

02:16 - 15.634 Excuse me?

02:16 - 18.837 Are you saying it lacks substantial evidence to find that

02:16 - 20.739 they're in the business of roofing,

02:16 - 23.875 because there's no evidence saying when the last time they put a roof on was,

02:16 - 27.712 yes, Your Honor, although, to the effect of,

02:16 - 32.751 it regular and recurrent, but obviously with regard to, to the question of law,

02:16 - 37.055 whether or not the the Altoona Housing Authority is a statutory employer.

02:16 - 38.056 That's my question.

02:16 - 41.426 Is it a factual or legal issue of regular or recurrent?

02:16 - 46.731 Well, through 302, eight uses the term in its in the statute regular or recurrent.

02:16 - 50.936 So I would argue that the, the conclusion of law that Altoona Housing

02:16 - 54.940 Authority as a as a statutory employer that's where challenge in that conclusion

02:16 - 58.944 and regular and recurrent falls within that realm.

02:16 - 01.947 And you and so you do believe it's before us.

02:17 - 04.916 You raised it. Yes, absolutely.

02:17 - 07.018 With that, I'm running out of time.

02:17 - 07.619 Any questions?

02:17 - 09.921 Thank you.

02:17 - 11.923 Thank you very, very much.

02:17 - 14.926 Again, another very interesting Well-argued case.

02:17 - 16.228 Thank you.

02:17 - 19.231 Judge.

02:17 - 26.137 O'Connor.

02:17 - 45.123 And. This.