00:00 - I want to welcome everyone to the Commonwealth Court for unbanked arguments.

00:05 - In addition to those of you here today in our courtroom, we welcome as well

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

00:14 - YouTube channel and those who are watching the broadcast

00:19 - at a later time on the Pennsylvania cable network.

00:22 - I want to thank PCN for their recording and later broadcasting

00:26 - of our unbanked arguments, which they have been doing for many years.

00:31 - When you watch on PCN, you will also see an introduction to each case

00:37 - presented by attorneys in the courts Office of Chief Legal Counsel.

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

00:45 - Pontius and Madison Poetica

00:49 - unless otherwise ordered.

00:50 - Our unbanked arguments are 30 minutes per case,

00:54 - with 15 minutes per side, not per litigant.

00:58 - If more than one attorney will be arguing, please

01:01 - allocate your time and advise us before you begin.

01:05 - Petitioner's appellants.

01:07 - Please advise if you wish to reserve rebuttal time.

01:11 - We know that 15 minutes is not a lot of time to discuss a case

01:15 - that is so important to your client and to you and to us.

01:20 - However, we have spent considerable time reviewing the record.

01:24 - The briefs, the cases you cited and understanding your arguments.

01:29 - Please use your time wisely.

01:31 - Jump right in to your arguments.

01:34 - We're looking forward to hearing them.

01:36 - And with that, we will begin with our first case

01:39 - on our list for today, a Scott versus

01:42 - Philadelphia police officer,

01:45 - Brian Canelo Perez and George Lutz.

01:49 - And I also want to mention that one of our colleagues,

01:53 - Judge Patricia McCullough, is joining us by phone.

01:56 - So if you hear a voice, you'll know it's her.

02:00 - Hello

02:01 - and welcome to the Commonwealth Court of Pennsylvania's June on Banc Session.

02:06 - I'm Madison Poetica, and I'm joined today by my colleague

02:09 - in the Commonwealth courts Office of Chief Legal Counsel, Danielle Potts.

02:15 - The term on bonk is French for on the bench,

02:18 - and refers to a special procedure where a panel of seven Commonwealth

02:22 - court judges hears argument on cases

02:25 - that the court believes implicate complex or important legal issues.

02:29 - Today, the court will hear four on bond cases.

02:33 - Danielle and I will present a brief summary of each on bond case,

02:37 - followed by the broadcast of the oral argument thereon.

02:40 - With that, let's jump into the first introduction.

02:43 - This next case involves the question of whether a plaintiff suing

02:47 - police officers for assault and battery

02:49 - must prove that the police officers engaged in willful misconduct.

02:53 - On July 2nd, 2019.

02:55 - Reginald Scott was driving home in Philadelphia

02:58 - when he was pulled over by police officers Brian Canela Perez and George Lutz.

03:03 - The appellants here while the parties accounts of Mr.

03:06 - Scott's interaction with the appellants following the stop differ.

03:10 - After a three day trial in 2023,

03:12 - a jury found appellants liable for several torts against Mr.

03:16 - Scott, including assault and battery.

03:19 - Prior to jury deliberations,

03:21 - appellant asked the trial court to instruct the jury

03:24 - that to find the police officers liable for the intentional tort of assault

03:28 - and battery.

03:29 - The jury must find that the police officer's actions constituted willful

03:32 - misconduct to overcome police officer immunity under the Tort Claims Act.

03:39 - The trial court rejected the proposed jury instructions,

03:42 - finding that the question of willful misconduct was relevant

03:45 - only to whether the appellants were entitled to indemnity

03:48 - by the City of Philadelphia, not whether they were liable

03:52 - for assault and battery, which are two distinct questions

03:56 - on appeal.

03:58 - Appellants contend that the trial court's refusal to charge

04:00 - the jury, as requested failed to comply with the law.

04:03 - As detailed in this court's recent decision.

04:06 - York v Keenan in York,

04:09 - this court rejected a challenge to a jury instruction, requiring the jury

04:13 - to find that a police officer engaged in willful misconduct

04:17 - to find the officer liable for malicious prosecution.

04:21 - In doing so, the court explained that the Tort Claims Act makes the willful

04:26 - misconduct determination applicable to the issue of police officer immunity.

04:32 - Citing the Pennsylvania Supreme Court case of rank v City of Pittsburgh,

04:36 - the court reiterated that the question of tort liability and willful

04:40 - misconduct must be posed and answered separately,

04:44 - because an officer may be found liable for the tort but still remain,

04:50 - but still

04:50 - retain official immunity if the officer's actions

04:54 - did not constitute willful misconduct.

04:58 - Mr. Scott counters by arguing that appellants waived any claim

05:02 - that the trial court heard by not providing the jury

05:05 - with a willful misconduct instruction concerning the assault and battery claim

05:09 - because appellants never requested a willful misconduct

05:12 - jury instruction on the assault and battery claim at the time of trial.

05:16 - In addition, Mr.

05:17 - Scott argues that the York v canon is inapplicable because the case did not

05:22 - involve assault and battery, and that even if willful misconduct must be proven,

05:27 - the jury implicitly found that appellants engaged in willful misconduct

05:30 - when they employed excessive and unjustified force

05:33 - with the specific intent to inflict bodily harm on him.

05:37 - With that, let's listen to the argument.

05:41 - May please the court.

05:41 - Craig Gottlieb representing the appellants.

05:44 - Police officers Lutz and Cornelio Perez.

05:46 - I'd like to reserve five minutes for rebuttal.

05:48 - You've got it.

05:51 - The issue in this case is whether, under the plain

05:54 - language of the Claims Act, the phrase willful misconduct

05:59 - is the same for purposes of immunity as it is for indemnification.

06:04 - In your case, this court already answered that question

06:07 - and held that it is the same for purposes of immunity as it is for indemnification,

06:12 - and that derives, quite simply, from the plain language of the Claims Act.

06:17 - Section 8550 of the Talk Claims Act is the section of the act

06:21 - that discusses willful misconduct, and there's no basis in that language

06:26 - to distinguish indemnification from immunity.

06:29 - And therefore, under this very straightforward reading, this court should

06:35 - remand this case for neutral and willful

06:37 - misconduct, because the trial court never gave the jury

06:40 - the opportunity to to consider the willful misconduct issue. Mr.

06:44 - banner, up for one moment.

06:47 - I'm gonna go a little bit

06:47 - outside of the record, just for my own edification on this.

06:51 - I'm glad you talked about indemnification and immunity.

06:55 - But are these officers

06:57 - have they secured indemnification from the city,

07:02 - or are they on their own

07:05 - for the liability below?

07:06 - Well, ultimately, we don't know, because there was no.

07:10 - Have they made a request for indemnification?

07:14 - Well, is is the city standing up for them, I guess?

07:18 - I'm not sure. We don't know. Answer to that.

07:21 - All right.

07:21 - Generally, time will tell.

07:23 - The time. Well, I mean, I'm not sure.

07:26 - Generally what happens in that situation is

07:28 - we will represent until there is a finding of willful misconduct.

07:32 - Okay.

07:33 - So I suspect so that's that at least in my analysis, is important

07:37 - because I'm looking at this case.

07:38 - I'm also looking at the next cases to come down.

07:42 - So you're very helpful.

07:44 - I was saying if there is willful misconduct there's no indemnification.

07:48 - If there is no willful misconduct, there is an indemnification.

07:53 - And I think that's material to what the policy reasons are behind

07:58 - the Political Subdivision Tort Claims Act and immunity.

08:01 - And, Your Honor, I can say that

08:05 - that's certainly the way the statute is set up.

08:08 - The way I mean, and I can also say that if there is no willful misconduct,

08:12 - I'm fairly certain that we will indemnify,

08:17 - as far as the other scenario that you laid out,

08:18 - what happens if I'm sorry, if there's not willful misconduct,

08:21 - we will indemnify if there is willful misconduct.

08:24 - I think that's that's as a practical matter, more of an open question.

08:29 - TBD. We have to be determined.

08:31 - Right? Okay.

08:32 - Thank you.

08:32 - And did I understand you to say that there's a difference

08:36 - between the willful misconduct,

08:40 - definition for an indemnity versus immunity?

08:43 - Or are they the same? Yes.

08:45 - Quite the opposite, Your Honor.

08:46 - They are absolutely the same.

08:48 - There is no basis to distinguish the definition

08:51 - of willful misconduct for one purpose than the other.

08:54 - Okay. Because it's just it's just one phrase.

08:56 - Willful misconduct under the language of the Tort Claims Act

08:59 - wasn't the request for willful misconduct only made concerning

09:03 - the malicious prosecution and intentional infliction of emotional distress?

09:07 - Claim?

09:08 - It didn't even come up

09:09 - when the assault and battery claim, which is what is before us.

09:12 - The charge, Your Honor. Ultimately,

09:16 - I think

09:17 - everybody understood that it was for everything.

09:20 - And you don't need to look any further than the judge's 1925

09:24 - bid decision, where the judge,

09:27 - in considering the request for willful misconduct,

09:30 - considered it with respect to assault and battery explicitly.

09:33 - I can I can,

09:35 - but if it's not requested, how can the judge just assume it?

09:39 - Well, because we're stated so I'm sorry.

09:41 - Or state that it is.

09:42 - So even though it was never requested.

09:45 - Well, the judge did state that that it was so

09:48 - the the judge's 1925 opinion specifically linked

09:52 - the willful misconduct issue to assault and battery.

09:56 - And it ruled against us.

09:58 - That's why we're here as an island, but never because of waiver.

10:01 - And in fact, the other point on waiver, Your Honor, is we raised

10:04 - we raised this issue in our post-trial motions, and players never responded.

10:08 - They at that point had the opportunity to say you waived it, but they didn't.

10:13 - There was there was no response

10:14 - the first time they even brought up the issue of waiver was so.

10:17 - So you're saying plaintiffs waived waiver?

10:19 - They did waive the waiver.

10:20 - Okay. Yes. I'm sorry.

10:22 - The first time they brought it up was win on appeal.

10:24 - Thank you.

10:24 - And they had and they had the opportunity in response to post-trial motion

10:28 - to raise the issue. And they did not.

10:31 - And if I may just finish this point on waiver, Your honor, in our,

10:36 - in our,

10:38 - verdict sheet, the verdict sheet has, has a has a question on willful misconduct

10:43 - that comes after all of the liability questions, including assault and battery.

10:47 - And the verdict she says if you find no willful misconduct,

10:51 - then go back to then then you, then your deliberations are done.

10:55 - So the verdict sheet itself also included willful misconduct

10:59 - instruction for, well, for misconduct implication for everything.

11:03 - So if the verdict sheet included that, then

11:06 - then it's not necessary to interpret the judge

11:10 - as having included that in the inquiries relating to assault and battery.

11:14 - Correct.

11:15 - That's true, I understood that.

11:16 - So, so, assault and battery does not necessarily

11:20 - include elements that would assume willful misconduct.

11:24 - The elements of assault and battery could be,

11:28 - there could be assault and battery in instances of reasonable force.

11:31 - And there are instances where willful misconduct cannot be read

11:34 - into the elements of the tort.

11:36 - So if the jury instructions did not include willful misconduct

11:40 - as a separate question, then we would have to see

11:43 - if the instructions relating to the actual tort related to willful misconduct.

11:48 - But here

11:50 - that's not necessary, because you're saying the jury

11:52 - instructions themselves also inquired as to willful misconduct separately,

11:57 - and apart from whether or not assault and battery elements had been met.

12:00 - Well, I'm saying that the instruction should have inquired as to.

12:04 - So that was my understanding when I read it that it was not included.

12:07 - Correct. Okay. It was not.

12:10 - So just to be precise about two things.

12:12 - It was not included in the judge's ultimate instruction.

12:15 - And I think the question that we're that we're passing through at this moment

12:19 - is whether it was included in our requested instructions.

12:22 - Okay.

12:22 - And the specific phrase for assault and battery was not included

12:27 - in the requested instructions.

12:29 - The merits of

12:30 - assault and battery were but but with respect to willful misconduct.

12:33 - But the elements of assault and battery don't assume willful

12:36 - misconduct were some intentional torts do, in fact, assume it.

12:39 - For example, malicious prosecution.

12:42 - I certainly agree with the first half of your sentence

12:44 - that that assault and battery doesn't.

12:47 - I'm not sure I agree with the second half that malicious prosecution does.

12:50 - We don't have to debate that for purposes of this case.

12:52 - Well, one of the cases that are at issue, I believe, I think it might have been

12:56 - rank has to do with malicious prosecution.

12:59 - Assault and battery.

13:00 - Yeah,

13:01 - that was assault and battery. Then it's a different one

13:03 - that I'm thinking of that involve malicious prosecution.

13:05 - It's probably York. Okay.

13:07 - And so in that case, would it be necessary if we're dealing with a word

13:13 - that involves the specific intent within the elements

13:17 - of the tort to have a separate inquiry with regard to misconduct?

13:21 - So the answer is yes, although I think it's

13:25 - a, it's a it's an important question that that is a little bit complicated.

13:30 - If I may take one step back, please.

13:31 - York actually

13:32 - held the actual specific holding of York is that you do have to do both.

13:36 - You have to do

13:37 - you have to give the specific description for malicious prosecution,

13:42 - and then you have to give the specific description for willful misconduct.

13:45 - So it did hold that you have to do both. Okay.

13:47 - Counsel I'm sorry. Let me let you finish that thought.

13:50 - Yeah.

13:51 - I think it's a little bit more complicated.

13:53 - That wasn't raised in York is not raised in this case.

13:57 - But what I think you're asking yet about is

14:00 - what about

14:00 - the fact that malicious prosecution has the word malice?

14:03 - And next to willful misconduct in the statute is the word actual malice.

14:07 - That question is, is trickier than this case.

14:10 - It's it's not before this court.

14:12 - We're actually have to be of the view that actual malice for purposes of the

14:17 - tour claims Act is a stricter standard than the malice for malicious prosecution.

14:22 - But that's, that's a, that's a linguistic not that that takes

14:25 - some some sorting out that doesn't, doesn't come up in this case at all.

14:29 - Thank you.

14:30 - Kelsey, did you say that the,

14:33 - willful misconduct was on the verdict sheet?

14:37 - Yeah, yeah.

14:38 - On the verdict, it was on the requested.

14:40 - Your requested version.

14:42 - Sorry, I I'm confusing you.

14:44 - Between which which what actually happened in what we requested.

14:47 - Okay.

14:48 - I requested a verdict sheet, which is on page 119.

14:51 - Okay.

14:52 - Asked for willful misconduct instruction and says if there's no willful

14:55 - misconduct, the case is over, including assault and battery.

14:59 - So. But that was on the that was on the instructions

15:03 - that requested and struck the requested verdict sheet.

15:05 - You request the verdict sheet.

15:06 - So the actual verdict sheet did not mention willful misconduct at all.

15:10 - Okay.

15:11 - And so when you conference with the judge, is that how it how you did

15:15 - you conference about the instructions that would be given and the requests,

15:19 - the verdict sheet, the request that we asked for our requested

15:22 - verdict sheet at 371 of the charge conference, okay.

15:26 - And 376 the judge chose a verdict.

15:31 - Okay. Very well.

15:32 - And that's, that's that's a little bit different

15:35 - than what happened with the instructions themselves.

15:36 - But but I'm on I'm distinguishing between instructions and worksheets.

15:41 - Yes. The verdict sheet was raised at 371 and rejected at 376.

15:47 - Okay. But you don't have that.

15:48 - That didn't happen with the actual instructions.

15:52 - The actual verdict sheet was I didn't say that.

15:55 - And now I'm back to now.

15:56 - Instructions. Instructions. Okay.

15:58 - For the the instructions didn't didn't say the words assault and battery.

16:03 - But it was clear based upon, representations at the charge conference

16:07 - and the judge's understanding that we were requesting.

16:11 - You mean willful misconduct,

16:14 - right?

16:15 - We did.

16:17 - Apologies.

16:17 - We did request

16:19 - assault and battery the merits.

16:21 - Let's let's put that aside.

16:22 - What we're talking about now is whether requested, whether we requested

16:25 - willful misconduct with respect to assault and battery. Yes.

16:29 - And the specific language of the instructions did not did not only said

16:33 - willful misconduct

16:34 - with respect to malicious prosecution, not with respect to assault and battery.

16:38 - However, at the charge conference, and this is at

16:42 - 370 of the charge conference,

16:44 - we did request we we said what's called a general objection.

16:48 - And in this case, the general objection was to

16:52 - this judge's practice of never including

16:56 - a willful

16:56 - misconduct instruction, no matter what the intentional tort was.

16:59 - And we said, judge Judge Kennedy has a practice not including this.

17:04 - He's done it in other cases.

17:05 - So we came into this charge conference knowing that, and we said, judge,

17:09 - we have this as a general objection.

17:10 - We want the willful misconduct instruction.

17:14 - I have a set of is that of record, though

17:16 - Judge Kennedy's practice in these types of cases.

17:19 - Can we look at that?

17:21 - Well, only, you know, not necessarily,

17:25 - except to the extent that it was raised at the charge conference.

17:28 - And there was there wasn't you you made that assertion.

17:31 - But that's the only thing we can rely on.

17:34 - Okay. Correct.

17:35 - I have a question that's a different direction.

17:37 - You're taking your mind in a totally different way.

17:40 - So the statute uses the language it talks about.

17:43 - When that judicial determination of willful misconduct has made

17:47 - a judicial determination.

17:49 - And when I hear judicial I think of or judge.

17:52 - But judicial determination is a defined term.

17:56 - So I looked at the definition of judicial determination.

17:59 - And I still wasn't able to determine whether a jury could make

18:03 - a judicial determination of willful misconduct, or

18:07 - by the phrase of judicial determination that it means

18:10 - that it's a determination to be made by a judge.

18:14 - Yes. That's the the language of that is, is, is, an interesting question.

18:19 - The the practice is that juries make the willful misconduct determination

18:23 - all the time.

18:24 - What is here? Asked for a jury and

18:29 - the concern with the jury making the willful misconduct

18:31 - determination wasn't that it should be a judge, not a jury.

18:35 - It was.

18:35 - It was that it's an unnecessary part of of the purpose.

18:39 - But I don't think anybody was disputing that.

18:42 - It's an appropriate jury question.

18:44 - Well, and it also seems very fact specific,

18:46 - which would also seem like the jury should be the one considering it.

18:50 - But I just I wanted to be sure.

18:52 - Yeah. I agree with you that it's very specific.

18:54 - And, and to bootstrap off that point, Your honor, the the language of 8550

18:59 - refers to a judicial determination of both willful misconduct and causation.

19:04 - It would be strange for the General Assembly to be

19:07 - requiring the judge to find causation, which is a fact based inquiry,

19:11 - and willful misconduct, which is a look at the

19:15 - the subjective, thinking of of the of the individual. So

19:21 - I think

19:21 - what judicial determination means is let the jury figure it out.

19:24 - And then the judge can, as you know, in this case, decided on a post-trial motion.

19:29 - The judge will ultimately have an opportunity for approval.

19:32 - So in that level it's an okay termination.

19:34 - Very good. Thank you.

19:35 - Thank you very much.

19:36 - Thank you.

19:44 - It pleased the court.

19:45 - Jim Wells, on behalf of the appellee, Reginald Scott.

19:49 - So what the, defendants are essentially arguing for here is sort of a blanket

19:54 - global rule that in all cases involving a police officer,

19:59 - the jury must be instructed on willful misconduct.

20:03 - And what that ignores is that before any instruction can be given to a jury,

20:09 - there has to be a factual basis for that charge.

20:13 - And so it's critically important in this case

20:16 - to look at the facts that were presented at trial

20:20 - and that the jury accepted in reaching its verdict.

20:24 - To understand why this verdict should be affirmed.

20:27 - I know that the court has read the briefs and the record, and so you know that Mr.

20:33 - Scott testified that these officers choked him,

20:37 - struck him with a baton known as an asp, that they slammed him

20:42 - against the hood of a car and at some point punched and kicked him.

20:47 - And I know that the court also knows

20:50 - that the defendant officers denied doing any of those things,

20:55 - and they denied doing anything that would explain the injuries

21:00 - that were presented to the jury and for which Mr.

21:03 - Scott was ultimately awarded damages.

21:07 - And although I know you've read it, I do want to just

21:10 - highlight one important part of that record where I asked

21:14 - on cross-examination of Officer Lutz, did you observe Mr.

21:18 - Scott do anything that would justify him being hit

21:23 - or struck or kicked or punched in any way?

21:28 - And his answer was no.

21:30 - I believe what he what we did that and what he did that night,

21:33 - we were detaining him. He resisted.

21:36 - We use just the right amount.

21:38 - We had to get his hands behind his back.

21:40 - That's all we did. And

21:44 - now you're saying

21:45 - the judge, the new based on the facts,

21:49 - did not need a charge of willful misconduct or it's because it wasn't made.

21:54 - It wasn't requested specifically with assault and battery.

21:57 - It was it wasn't made specifically with assault and battery.

22:01 - I'm not sure that was the judge's reason for not giving it.

22:05 - But the reason why it's important here is not only on

22:09 - the question of whether such a charge should have been given,

22:13 - but there's also a harmless error analysis here

22:17 - because the jury ultimately, if the the proposed instruction,

22:21 - which is in writing, limited the willful misconduct

22:27 - charge to the claims for malicious prosecution, and this jury,

22:31 - you know, they didn't just sort of blanket rule in favor of the plaintiff.

22:36 - They considered the evidence

22:38 - and they determined that although the evidence they believed, Mr.

22:41 - Scott, they had to to reach the conclusion that he was assaulted and battered.

22:46 - But they also said, no, there's not enough evidence here of malicious prosecution.

22:51 - So even if that

22:53 - charge had been given, it wouldn't have affected the outcome.

22:57 - And another way to look at that is think about what the defendant's or

23:00 - how do we know it would not affect the outcome

23:03 - because the jury concluded they believed Mr.

23:07 - Scott, that without any without any provocation,

23:12 - without any conduct on his part to justify it, these officers

23:17 - choke him, beat him, slammed them onto the hood of a car.

23:22 - And the reason to to answer your more specific question,

23:25 - if they were only instructed

23:28 - that willful misconduct was something they must find

23:31 - and collect in connection with the malicious prosecution claim,

23:36 - then even if it had been given, it wouldn't have been an issue

23:40 - because they said there was no malicious prosecution.

23:42 - They were never so counsel, your case was essentially an excessive force case.

23:47 - It was.

23:49 - But excessive force, we can all agree, is not willful misconduct.

23:52 - There's a there's space between the two.

23:56 - And it's it's kind of important from our perspective

24:00 - as the government court with immunity in indemnification

24:05 - that Wolfram's conduct is a trigger that leads to other responses.

24:10 - So what it seems to me you're suggesting is, yeah,

24:12 - I don't care about willful misconduct, because that's not what I need to prove.

24:17 - I just need to prove excessive force,

24:21 - which is what it seems you did here based on the record.

24:25 - But the next case that will come down here is,

24:28 - well, was this willful misconduct?

24:31 - And does the city have to indemnify these officers if it comes to pass?

24:37 - So doesn't it make more sense for us to resolve

24:41 - all these issues at once and tell Judge Kennedy

24:44 - this is required here, because otherwise we're having two trials?

24:48 - Isn't that also in play?

24:51 - And I would say it depends on the facts.

24:53 - And let's talk about these facts.

24:55 - And so let me let me preface it by saying this.

24:58 - What rank and by extension York essentially said is

25:04 - actually let's take a step back.

25:06 - If we're not talking about a police officer and just general

25:10 - garden variety willful misconduct cases, it has long been the case

25:15 - that a finding of an intentional tort

25:19 - satisfies the willful misconduct prong.

25:22 - What rank did to address Your Honor's point?

25:26 - That there's a somewhat of a gap

25:29 - between excessive force and willful misconduct is in rank.

25:34 - There was no dispute that there was some altercation

25:37 - that went on between the police officer and the citizen,

25:41 - and the police officer was found liable for excessive force

25:46 - in a claim for indemnity.

25:48 - What the Supreme Court essentially said is this officer

25:52 - may the jury may have determined that this officer used excessive force,

25:57 - but the officer should have an opportunity to say,

26:00 - hey, even though I employed that force,

26:03 - I did it believing that it was necessary under the circumstances.

26:07 - And my main point here today is that could never have been the case

26:12 - on these facts.

26:14 - The jury instruction sheet

26:16 - that I, reviewed in the record appeared to ask for

26:20 - whether or not an assault had occurred and whether or not a battery had occurred.

26:24 - So was the jury instruction that was given for assault and battery.

26:28 - Did it hinge on excessive force, or did it hinge on the elements

26:32 - of the intentional torts, assault and battery?

26:35 - Because excessive force obviously would not be an element

26:38 - of those intentional towards I so I would point this out.

26:42 - It was the standard charge for assault and battery, which was focused

26:46 - on the elements of assault and battery.

26:48 - However, the jury was also instructed to consider

26:52 - whether the officers were justified in using the force that they employed.

26:57 - So your position

26:58 - then, is that if there was excessive force and they were not justified by that,

27:02 - there doesn't need to be a separate jury instruction on willful misconduct.

27:07 - But the jury question on the verdict, see, but that an instruction was given,

27:12 - where is that instruction result?

27:15 - How does that result in the jury sheet?

27:17 - Because if the jury answers the questions with regard to the normal elements

27:21 - of assault and battery, they're not considering that where on the jury sheet

27:25 - was the jury able to express that this, that excessive force was used?

27:29 - So the additional instruction

27:31 - that I would draw your attention, Your Honor's attention to, is it.

27:34 - 446 a of the reproduced record,

27:38 - and the jury

27:38 - was instructed that a police officer is justified in the use of any force

27:43 - which he or she believes to be necessary to effect the arrest,

27:48 - or if any force that he believes to be necessary to defend himself

27:52 - or another from bodily harm while making the arrest.

27:56 - So that gave the jury the opportunity to say that

28:00 - the use of force here was justified, and they did not.

28:03 - Well, where is that related to the elements of assault and battery?

28:08 - It's part and parcel because it involves a police officer.

28:10 - In other words, if if I were accused of assault and battery,

28:14 - the instruction would simply be the elements for assault and battery, right?

28:18 - If I'm a police officer, the jury here

28:22 - and in most cases is advised that there is an instruction

28:26 - from the judge that said, you cannot find that the elements of assault

28:29 - and battery have been met.

28:31 - If you find that the excessive force

28:33 - has been used, or that the force was not justified,

28:35 - I don't think the instructions were that specific.

28:37 - The point is, the jury was given the opportunity

28:39 - to say that the use of force was justified.

28:41 - And how do you know that the jury thought that when you get the verdict,

28:44 - because of the nature of the factual dispute in this case,

28:49 - remember the officer said, we did not use any force.

28:53 - This was an all or nothing case.

28:56 - You either believed Mr.

28:57 - Scott that he was brutally beaten without justification,

29:01 - or you believe these officers, that nothing they did or nothing that happened

29:05 - that night was the cause of the injuries that were presented.

29:10 - And so my overarching point here is on those facts.

29:14 - When this jury chose to believe Mr.

29:17 - Scott's version, that is, by definition, willful misconduct,

29:22 - you don't need a separate charge on willful misconduct on these facts,

29:27 - because these officers, without justification, brutally beat this man.

29:33 - So that's what distinguishes this from rank

29:36 - or even York, which only involved the malicious prosecution.

29:40 - And I

29:41 - guess I would I'm perfectly willing to entertain any questions,

29:45 - but I do want to point out a couple of things that,

29:49 - counsel said.

29:51 - The first is that it was suggested

29:53 - that or waive or argument was was waived.

29:57 - I would point out that.

30:03 - The post-trial motion in this case

30:05 - was filed on August 10th of 2023,

30:09 - and it was denied by the court on August 24th, 2023.

30:14 - There was no request for a for briefs.

30:17 - There was no response

30:19 - filed to the post-trial motion before it was denied.

30:23 - So this brief was our first opportunity to point out that they never requested

30:28 - a willful misconduct charge in connection with the assault and battery claim,

30:32 - and therefore it was not only waived, even if it had been given,

30:37 - it wouldn't have changed the outcome in this case,

30:40 - was it asked for generally, or was it asked for specifically

30:44 - with regard to malicious prosecution specifically?

30:47 - And you can look at I don't have them, I apologize,

30:51 - I don't have to say here, but you can look at the,

30:55 - precise written proposed charge

30:58 - submitted by the the defendants.

31:04 - How do you respond in your statement?

31:05 - I know that in my brief, you look at my brief, I actually sort of,

31:08 - copied and pasted it so that it's right in there.

31:12 - How do you respond to opposing counsel statement

31:14 - that you made a general objection to the judge?

31:18 - I guess it was in chambers.

31:21 - And you asked for it before, then just said, I just make a general objection

31:24 - that I request this specific charge of willful misconduct.

31:28 - I don't disagree with that.

31:29 - There was a general objection made, but it was

31:33 - it was a general objection to the judge's ruling that he would not give the willful

31:38 - misconduct charge with respect to the malicious prosecution claim.

31:42 - So I don't think that changes anything.

31:44 - The point is, they have to request it.

31:46 - And and we have to ask ourselves, I think, two things.

31:50 - How would anything would have changed if that proposed charge had been given?

31:54 - And how will

31:56 - anything change if this were remanded for a trial on willful misconduct?

32:00 - Only?

32:01 - You know something.

32:02 - I think it was in the defendant's reply brief.

32:05 - They said they said.

32:09 - The jury might not have concluded that

32:12 - that the officers knew their conduct was unlawful.

32:17 - On these facts, that's impossible.

32:19 - But, counsel, you're saying that to two

32:23 - legal minds.

32:26 - But if there were a layperson looking at this,

32:30 - it would seem that there may be a little gap between

32:33 - what the facts were and what the jury found.

32:36 - Wouldn't it be cleaner to have them specifically say willful misconduct,

32:42 - yes or no?

32:45 - Because you're saying, well, it's obvious by the facts.

32:48 - What's obvious to you?

32:50 - Maybe, maybe obvious to us, because this is what we do for a living.

32:54 - But looking from the outside in, not having a legal mind, I don't know.

32:58 - There.

32:58 - There may be something missing

33:02 - if someone else is kind of looking at the total picture.

33:07 - I would say

33:07 - this, Your Honor, one that imposes an additional hurdle for the plaintiffs

33:11 - to really unnecessarily overcome and remember in general, for as long

33:16 - as the willful misconduct statute has existed, that has never been done.

33:22 - We've never asked a jury to make a separate finding.

33:25 - The only reason why we're debating this is because of that nuance of Rank

33:31 - and York that said, well, there may be situations

33:35 - where it's necessary to obtain a willful misconduct finding.

33:40 - And I'm simply saying that and laypersons making up the jury in this case

33:45 - did conclude that Mr..

33:47 - Scott was assaulted and battered as he said he was,

33:51 - and they rejected the defendant's testimony.

33:54 - And my point is, that takes us outside of rank, that takes us outside of York.

33:58 - The officers here

33:59 - weren't saying, well, we may have used it had been a different case.

34:03 - If these officers said, you know, he was trying to strike us,

34:08 - we had to get him under control.

34:09 - We feared for our own safety, and we had to use our batons

34:14 - in order to prevent, harm to ourselves and to get him under control.

34:18 - But they didn't say that.

34:19 - It just had a general denial trigger that would trigger the type of question

34:24 - and rank, meaning if the jury in that circumstance had said

34:29 - no, we think you went overboard and you committed excessive force

34:33 - in that situation, there would need to be a determination

34:36 - whether the officers subjectively intended to use that excessive force.

34:41 - So, Mr..

34:42 - Words to understand your position being that if we agree with you

34:46 - that we do not have to overrule York,

34:50 - you I don't believe you do.

34:51 - I think all you have to say on this issue

34:54 - is that on these facts, that willful misconduct finding is not necessary.

34:57 - And you're saying the distinguishing fact is because the defense was

35:02 - we never did anything do it.

35:04 - That's correct.

35:06 - I thank you.

35:07 - Thank you.

35:17 - Judge Kirby, if I may, Mr..

35:18 - May start where you where you ended.

35:20 - This defense of

35:23 - either we did everything or we didn't do anything.

35:25 - It's not how the trial actually played out.

35:27 - I'm going to read a couple quotes from the officers about what the actual.

35:32 - This is the officer's version of the interaction.

35:34 - So this is the interaction that's claimed to be we did nothing.

35:38 - Officer Lutz says he immediately started moving his arms.

35:43 - Tensing up won't let us get his hands behind his back to detain him.

35:47 - That's on 357 of the record.

35:49 - Kenneth Perez, at 313, says they had to keep pulling and pulling,

35:53 - so it wasn't even under their version.

35:55 - It wasn't as simply as, he he acquiesced.

35:58 - And that was that.

36:00 - The even their version was that there was a tussle, there was a confrontation.

36:04 - Perhaps the best proof comes from plaintiff's own closing.

36:07 - This is plaintiff's closing argument.

36:09 - And in plaintiff's description of the facts,

36:12 - plaintiff says these weren't accidental injuries.

36:15 - These were intentional.

36:17 - But then he says these were, at minimum, a display of reckless disregard.

36:22 - Reckless disregard is not willful misconduct.

36:24 - Reckless disregard, as we know from rank, is a level below for misconduct.

36:29 - So plaintiff's own version of this case is that there was

36:32 - there was a confrontation

36:34 - playing his own version of of our version of the case is that

36:37 - there was a confrontation and that a jury, according to plaintiff, could

36:41 - have, could have ruled in his favor on the on the ground of recklessness.

36:45 - I find it interesting that we're having this conversation

36:48 - about what the facts were and what they mean.

36:50 - I mean, in reality, your position is that that's for the jury to determine

36:54 - that. Yes.

36:56 - And then

36:57 - just just from from one question you asked judge,

37:01 - I just to follow up, I think, I think any remand on willful

37:05 - misconduct would be for purposes of, of indemnification and immunity.

37:10 - It's for both of them.

37:13 - And, if the court has,

37:16 - no other questions, we asked for, a new trial in this case.

37:20 - Thank you very much.

37:25 - Well presented, well-argued and brief.

37:28 - Our first case involves Pennsylvania's Right to Know law,

37:31 - which ensures transparency with governmental action

37:35 - by providing public access to government records.

37:38 - Records are presumed publicly accessible

37:41 - unless an agency proves entitlement to a public access exception,

37:46 - like in instances based on privilege or judicial order.

37:50 - If an agency does not have possession of responsive records, two way

37:53 - request records may still be accessible in two instances, one of which,

37:58 - relating to section 561 of the Right to Know law, is at issue here.

38:05 - Under this section of the Right to Know law records

38:08 - that are in possession of a third party that the agency has contracted with

38:12 - to perform a government function on behalf of the agency,

38:15 - which directly relates to that government function,

38:18 - are publicly accessible records under the right to Know law.

38:23 - The en banc panel will hear argument on attorney

38:25 - Joshua Vasquez, appeal of an Office of Open Records decision

38:29 - denying a request to the Pennsylvania Gaming Control Board.

38:33 - The request sought several months bank statements for Greenwood

38:37 - Gaming and Entertainment Incorporated, doing business as Park Casino

38:42 - Park has a category one slot machine license with the board

38:46 - pursuant to the Pennsylvania Racehorse Development and Gaming Act

38:50 - under the Gaming Act.

38:52 - Park is subject to a daily tax of 34%

38:55 - on daily gross terminal revenue from slot machines

38:58 - operating in the facility, plus a local share assessment.

39:03 - The tax

39:04 - assessment funds are deposited by Park into a park bank account,

39:08 - and held in trust by Park until the funds are transferred

39:11 - into the state Gaming Fund under the State Treasury.

39:15 - In its denial of Attorney Vox's request,

39:18 - the Office of Open Records found that the board proved

39:21 - it did not have possession or control of the records,

39:23 - and found no evidence that the board delegated any of its

39:27 - responsibilities to parks for qualifying section 561.

39:31 - Relationship.

39:33 - On appeal of that decision,

39:35 - attorney Voss cites to parks as self-description of the Commonwealth

39:38 - as a majority business partner to the tax assessment.

39:42 - Attorney Voss argues the slot machine license mimics

39:46 - elements of contract formation and maintains parks performs

39:49 - a governmental function by holding the funds in a trust for the Commonwealth,

39:54 - thus making the records accessible under section 561 of the right to no law.

39:59 - The board and parks, the latter of which is an intervenor in this appeal,

40:03 - both argue the license is not a contract,

40:06 - and that section 561 does not apply

40:09 - because parks is not performing a governmental function.

40:13 - Parks maintains that the Gaming Act licenses are regulatory, not contractual.

40:18 - Parks argues that even if attorney Voss

40:20 - could establish that section 561 applies, its private bank statements are protected

40:26 - from disclosure on the basis of proprietary financial information.

40:30 - Further, parks argues that granting this appeal could lead to absurd results,

40:35 - like requiring private businesses

40:38 - to disclose sensitive financial data

40:41 - simply because they are subject to government regulation.

40:45 - Now let's listen to the arguments.

40:48 - Good morning, Your Honor.

40:49 - May it please the court?

40:50 - Samantha Zimmer, on behalf of petitioner Joshua Voss.

40:53 - I'd like to reserve two minutes for rebuttal, please.

40:56 - You have it.

40:58 - This case concerns public access to documents

41:01 - reflecting state funds that are in parks, casinos possession.

41:05 - The Office of Open Records determined that those documents are not subject

41:09 - to public access under section 561 of the Right to Know law.

41:14 - That decision was an error for two primary reasons.

41:16 - The first being that parks and the Gaming Control Board, particularly

41:21 - in the context of tax collection, have a contractual relationship.

41:25 - And second, that the requested bank statements

41:28 - reflect performance of a governmental function,

41:32 - beginning with what is really the crux of the case here is Parks's

41:36 - unique relationship with the Gaming Control Board

41:38 - under its category one slot license, and to understand

41:42 - that the Gaming Act section is a license, a contract.

41:47 - Your honor, in

41:48 - this case under section 14 03B of the Gaming

41:52 - Act, the license for parks hold reflects a contract.

41:56 - And that's not to say that everything a contract, something you bargain for.

41:59 - There's consideration given.

42:00 - But a license is a privilege that the government grants.

42:04 - Yes, Your Honor, a license is a privilege.

42:06 - However, here the license also carries with it

42:09 - a revenue sharing function that not every license does.

42:12 - And that's what makes Parks casinos license unique,

42:15 - similar to a lottery license that the Supreme Court in Yung

42:19 - Li versus Department of Revenue looked at where the lottery license

42:24 - provides the privilege to the licensee to sell license

42:28 - to sell lottery tickets and receive commissions in return.

42:32 - And that aspect of the revenue sharing gives the license

42:35 - both the aspect of a contract and the license.

42:38 - Just because they're holding funds, it's part of the regulatory scheme.

42:41 - It's not part of a contract here.

42:44 - This holding of funds is unique due to the fact that it's a cut of Parks's

42:49 - revenue, as opposed to the sales tax that parks cites,

42:53 - or the other taxes that are levied on vehicles, and things

42:59 - like that, which are an extra percentage placed on top of something that sold.

43:05 - The gaming control board receives a cut of what is Parks's revenue?

43:08 - $0.54 of every dollar that parks makes

43:12 - is directly going into a bank account for that sole purpose

43:16 - in trust for the Commonwealth, because they're required to by law.

43:20 - It's not a contract.

43:21 - I don't see the contract.

43:23 - That's what I'm trying to understand.

43:24 - Like I understand the basis of your argument was that it's a contract.

43:27 - But everything we learned in law school that you have certain

43:30 - elements of a contract, and I just don't see where it's met here.

43:33 - Like where is the the bargain for exchange?

43:36 - Where is the consideration proposed

43:38 - to have parties on an equal basis, parks not on an equal basis as a government.

43:42 - The government saying we have regulations.

43:45 - We will issue you a license if you do A, B and C and oh, by the way,

43:49 - we can revoke that license if you don't uphold the law.

43:54 - While that's true,

43:55 - Your Honor, the the licensing process here does mimic that of contract formation.

44:00 - When parks gives its application for a category one slot license,

44:04 - that is tantamount to an offer

44:06 - which is manifesting a willingness to enter into this bargain

44:09 - and then park, the board has no obligation to accept that offer.

44:13 - It's the Gaming Act, and the Gaming Control Board's regulations are replete

44:18 - with references to the terms of the terms of the contract, negotiable?

44:23 - No, Your Honor, the terms are not negotiable.

44:25 - But to that point, that means that when parks when the board grants

44:30 - the license, it's an unconditional acceptance of the terms

44:33 - that all the parties know they're entering into.

44:36 - And at that point, parks

44:37 - pays its $50 million fee, which operates as consideration here.

44:41 - But the board doesn't

44:41 - even make the terms of the contract the General Assembly does.

44:45 - That's true.

44:45 - But nevertheless, they reflect the form, the terms of a contract.

44:50 - Even with regard to the the regulatory process that has to be followed,

44:55 - for example, administrative procedures, for revocation of a license

44:59 - that's similar to parties bargaining in a contract

45:02 - for mandatory arbitration or mediation procedures.

45:06 - It's there's similar concepts.

45:09 - And even if they make it a contract, it's because there are similar concepts.

45:13 - Well, even if the court doesn't find that the

45:17 - the category one slot licenses itself operates as a contract here.

45:22 - Section 14 03B of the Gaming Act suffices

45:25 - for a contractual relationship as it relates to these requested records.

45:29 - Section 14 03B requires that again, $0.54 of every dollar that parks

45:35 - makes goes into a separate bank account unless the board agrees otherwise,

45:40 - and then parks holds those funds in trust

45:43 - and interest is the operative phrase here, meaning that

45:47 - those funds belong to the Commonwealth the minute that they are assessed.

45:51 - That's what we commonly understand trust to be.

45:53 - They're holding the the funds of another for the benefit of another.

45:59 - And to that point, section 13 A 14

46:01 - 03B of the Gaming Act constitutes its own contract.

46:05 - That's languaging of contracting right there

46:07 - that, for purposes of this specific request, makes the contract

46:11 - under section 561 of the right to know law to governmental function.

46:16 - Yes, Your Honor, that that brings me to my next point, which is that holding

46:20 - those funds in trust for the Commonwealth is a governmental function,

46:24 - which in the Supreme Court noted in winter, mantle

46:27 - is a non ancillary undertaking of government

46:30 - holding the government's money is the governmental function here.

46:34 - It's not slot machine gaming, it's not regulating slot machine gaming.

46:38 - The governmental function is holding the funds of the Commonwealth.

46:42 - What's your best present?

46:43 - I'm sorry.

46:45 - Is it isn't the Commonwealth basically saying we'll issue you a license,

46:49 - but in return for the license, then you have to give us an X percentage

46:53 - because this is going to benefit everybody.

46:55 - And then you have to do A, B, C and D and there's no negotiating.

46:59 - So isn't it still an extension of what the government has offered statutorily.

47:04 - No, Your Honor, because because parks is holding

47:07 - those funds and that that governmental function

47:11 - for for example, recently in February, actually the Pennsylvania

47:15 - Supreme Court issued decision Garcia versus American Eagle Outfitters,

47:20 - where it looked at the sales tax, statutes.

47:23 - It's actually cited in Parks's brief and discussed this concept

47:28 - of holding funds and trust in the tax context,

47:31 - and explained that when a merchant is is assessing that tax and holding it in

47:36 - trust that it's doing so as an extension of the government,

47:41 - it's acting as an agent of the government and holding those funds.

47:44 - But is it an activity of the board

47:46 - because it doesn't really have to be a function of the board

47:49 - in order for you to say

47:50 - that it's a governmental function, and we want to get the records from the board.

47:54 - The board doesn't have anything to do with that.

47:56 - Well, the board is the regulator of this highly regulated industry.

48:00 - And since this is a condition of this contractual relationship,

48:04 - this is this extends to the performance

48:07 - of Parks's governmental function when it's holding these funds.

48:10 - But how is the board involved?

48:11 - You got to bring the board back involved,

48:12 - and I don't see how the board is involved, that it's part of their function.

48:16 - It's part of the board's function through its regulation of parks.

48:20 - Because the request is worded in such a way that it's before

48:23 - that money is transferred over necessarily to the Department of Revenue.

48:28 - So the board is the one that, as the regulator of this

48:32 - highly regulated industry and parks, casino in particular, is

48:37 - tangentially related to these funds.

48:39 - And that's why the request went to the board.

48:42 - Can you tell me your best authority,

48:45 - the site, if you have it for

48:48 - the this

48:49 - function, in this case being a governmental function?

48:53 - Yes, Your honor, and that's that is the winter mantle case,

48:55 - which which discusses the concept of, of the the governmental function as a non

49:01 - ancillary undertaking of government, which is what we see here.

49:04 - And then in winter mantle, the court was concerned with

49:08 - with an authority and a local baseball team

49:11 - which is indicative of the fact that the governmental function analysis

49:16 - has to consider the various circumstances in which you you find the request.

49:21 - We don't typically think of a, a baseball team

49:24 - as a governmental function, but given the, the jurisdiction of the authority

49:29 - and the terms of the contract that brought the

49:33 - the baseball stadium and its functioning into the concept of a government

49:37 - that was a publicly owned stadium, the in this case, it's a privately owned casino.

49:43 - Yes, yes.

49:44 - So there's a big difference, isn't there?

49:46 - Well, section 561 is intended to capture those exact kinds of records.

49:51 - Those that that are not necessarily in the possession of the board,

49:54 - but nevertheless reflects the performance of a governmental function

49:58 - which is here holding those governmental funds.

50:00 - You see, the distinguished

50:02 - the distinguishing feature between that case in this case

50:06 - is that that and I think it was a Yankees that in the name of the case,

50:11 - that was a stadium owned by the government,

50:13 - an agency created to own the stadium.

50:16 - And the therefore the management of it

50:20 - is all essentially governmental.

50:23 - But you have, in this case a private casino.

50:27 - So can you explain how that is your best authority? Yes.

50:31 - Because in that case, the the authority

50:34 - had contracted with a private,

50:37 - a private unit to carry out the authority's

50:41 - responsibilities and obligations with regard to that stadium.

50:44 - And similarly, here, the board has given parks the obligation,

50:48 - the requirement to hold the funds that are the Commonwealth's funds.

50:52 - It sounds like you're saying that gambling is a governmental function.

50:57 - No, Your Honor, it's holding the funds.

50:59 - That's the governmental function.

51:00 - The only problem with that also is, one of the board members stated

51:05 - the board is not involved in the affidavit that they owner accepted.

51:09 - The board is not involved at any stage of either

51:12 - depositing or dispersing the slot machine tax from the bank

51:16 - accounts established and managed by any slot machine licensee,

51:21 - and regardless of the fact that the board is in monitoring this bank account.

51:26 - Nevertheless, parks has this bank account and it's holding

51:29 - a substantial amount of Commonwealth funds in it.

51:32 - But you got to make that connection then to the board and the board

51:36 - saying by affidavit that was found to be reliable and credible

51:40 - that they don't do anything with the fund, they don't control it.

51:43 - They don't decide what goes in, whether it's the right amount,

51:46 - they don't have any connection to it.

51:49 - But section 14 03B specifically

51:52 - provides that this account must be held unless the board agrees.

51:55 - Otherwise, the board has it.

51:58 - Isn't it that from the statute what the General Assembly stated?

52:01 - Yes, but that still is the the board's connection to these funds.

52:05 - And importantly, it just last month parks reported

52:09 - publicly as they have to every month, the amount of revenue that it brings in.

52:13 - And that's $54 million from last month alone.

52:17 - The parks casino has and $0.54 of every dollar from that amount

52:22 - is Commonwealth money that parks is holding, and that Commonwealth money

52:27 - should be subject to public access under section 561 of the right No law.

52:32 - And I just, Did you ask for rebuttal time? Yes.

52:35 - Okay. And had we given that.

52:40 - Had we asked I didn't remember there was little time.

52:42 - Okay. Yes.

52:43 - So you have another minute and a half. Absolutely.

52:46 - I'll wrap it up. Yes.

52:48 - So to that point, this is

52:50 - these are the types of records that section 561 is intended to capture,

52:54 - where a governmental function is being performed by a private party.

53:00 - These are important documents that the public should have access to,

53:03 - given the substantial amount of money that's being exchanged

53:07 - here with the Commonwealth, all in the purpose of advancing

53:10 - the Gaming Act's purpose of providing substantial revenue to the Commonwealth.

53:14 - So with that, I will leave you until rebuttal.

53:16 - Thank you.

53:17 - Thank you very much.

53:25 - Your honor, please may it please the court.

53:27 - My name is Dennis Miller,

53:29 - and I represent the Pennsylvania Gaming Control Board in this matter.

53:32 - It sounds like you understand the, Will you be splitting?

53:36 - I'm sorry. Yes, please.

53:37 - I would like to, reserve five minutes for, the intervenor.

53:42 - I thank you very much.

53:44 - I think the

53:45 - court understands the issues in this fairly well.

53:49 - Very well. And,

53:52 - basically, we argue that there's no contract.

53:57 - The this court has stated that

53:59 - there has to be an actual contract, not an implied contract.

54:03 - The court, and the Supreme Court, which was referenced in Lee, actually,

54:09 - just said that the license was a contract,

54:14 - for the the selling of the lottery tickets.

54:20 - We're a little further removed

54:22 - from a retailer selling governmental products.

54:27 - And the court, the Third Circuit Court

54:30 - and the Pennsylvania Supreme Court have both held that

54:36 - the board's issuing of a license is actually a license.

54:41 - It's it's the approval to open up and,

54:45 - operate a casino.

54:49 - Sorry that's late.

54:50 - Anyway,

54:53 - Our licensing is first.

54:57 - Do you have the application?

54:59 - Second,

55:00 - our Bureau of Investigations comes in and they do a full investigation of the,

55:06 - the individuals that are involved with the casino,

55:09 - the casino itself, to determine if they are public, if they are suitable,

55:12 - if the project is feasible,

55:14 - then we have public hearings where they present their their project.

55:19 - The the public can comment,

55:22 - then it goes before the board and a full evidentiary hearing

55:25 - where they have to come in and they have to present their whole, project.

55:30 - They have to show that they're feasible by providing documentation.

55:35 - And, they get to be cross-examined by our Office of Enforcement Counsel.

55:40 - It's only after you build that record, and we could have an intervenor

55:44 - in that matter.

55:44 - After you build that evidentiary record, it goes to the board, and the board

55:49 - makes a decision whether or not to grant the license or to deny the the license.

55:54 - If it

55:55 - once it makes that decision, an adjudication is actually

55:59 - issued stating whether or not they grant the license.

56:03 - If they don't, if they deny it, it goes directly to the Supreme Court on appeal.

56:08 - If they if they granite and later we

56:12 - we revoke the license or we suspend the license,

56:16 - that matter comes here for an appeal.

56:19 - If there is an allegation that a casino is not depositing the correct

56:24 - amount of money into an account, that's eventually to go to the government,

56:30 - would the board be involved in that now?

56:33 - Your Honor, the, the board is not involved with the financial flow at all.

56:38 - Anything that, any of the auditing would come from the Department of Revenue?

56:44 - They're the ones that monitor through the central computer.

56:48 - The funds, the, taxes that are supposed to be collected.

56:51 - And they would do the audit, the part of the casino making public monthly.

56:57 - How much income they received is a way for the public to know

57:02 - what the percentage should be to the government,

57:04 - to the Department of Revenue would know that as well.

57:06 - Well, the moneys are put into the account, which has been discussed

57:11 - and then is held in trust.

57:14 - But it goes it's paid directly to the Department of Revenue.

57:17 - So really the money has nothing to do with the board.

57:21 - The board is not in any way involved with the monetary budget.

57:25 - Yeah.

57:25 - I think we just Covey was asking that just by doing the math,

57:29 - would there be a way to see

57:32 - what should be going into the account based upon the overall, receipts?

57:38 - The casino,

57:41 - on a monthly basis?

57:43 - Well, on a yearly basis, under 1211, the,

57:46 - the casinos are required to, to report that money.

57:49 - And we put that in our annual report, which is on our public, website.

57:54 - Also, the casinos have allowed us to place that

57:58 - on the website on a monthly basis.

58:03 - As far as what's being requested here

58:05 - with the bank statements, that would be a daily basis.

58:08 - And no, we we would not

58:11 - in any way audit those funds.

58:14 - Everything goes into the Department of Revenue.

58:17 - They're the ones who know what the taxes are.

58:19 - They're the ones who would audit what comes down to them

58:22 - and what's paid to them. Thank you.

58:25 - Okay, the next question then would be, is it a governmental function?

58:30 - And I just kind of touched on that.

58:32 - But basically the money goes in trust into an account,

58:35 - a private account opened by the casino, a private entity.

58:40 - It goes in there, it's held in trust.

58:43 - And once it's paid, goes to the Department of Revenue.

58:48 - That money that's in that trust is no different

58:51 - from an employer who withholds employment taxes,

58:54 - or the 6% sales tax from the retail seller down the road.

58:58 - That money is all required under the revenue Code to go into an account,

59:04 - to be held in trust, and then paid to the Department of Revenue.

59:08 - So it's not a governmental function for a private entity

59:12 - to open up an account and have monies deposited into it.

59:16 - In essence, it's a tax.

59:17 - Correct. Exactly, exactly.

59:19 - And all the taxes are go through the Commonwealth

59:23 - or go through, I'm sorry, they go through the Department of Revenue.

59:26 - The board does not collect taxes.

59:29 - And that brings me to the last point.

59:31 - Whether it's a governmental function and or of the the gaming board,

59:36 - the gaming board's sole role is regulation of the casino industry.

59:42 - It does not handle the taxes.

59:44 - It does not handle the flow of money.

59:47 - It just

59:48 - regulates the industry.

59:53 - There's no more questions.

59:54 - I'll set.

59:58 - Thank you very much.

59:58 - 898 Thank you.

01:00 - 09.472 May it please the court.

01:00 - 10.840 My name is Jonathan Goldman.

01:00 - 14.243 I'm here on behalf of Greenwood Gaming, doing business parks.

01:00 - 17.647 I'm very confident that the court understands the arguments,

01:00 - 21.384 and I'm not going to, rehash the ones over 5

01:00 - 24.387 or 6 D1.

01:00 - 29.192 Other than to say the language is very clear

01:00 - 33.196 by the legislature, and we're talking here about

01:00 - 37.667 whether or not third parties, non-governmental

01:00 - 43.406 folks, are being brought into the ambit of the right to know law.

01:00 - 46.309 The language is,

01:00 - 48.444 there must be a contract.

01:00 - 50.613 It doesn't say

01:00 - 54.484 there can be a license or, you know, a regulation

01:00 - 58.021 that's kind of sort of seems a little like a contract if you look at it right.

01:00 - 03.526 It's got to be a contract and there's quite clearly no contract.

01:01 - 07.764 And furthermore, the Supreme Court,

01:01 - 10.033 in the first

01:01 - 13.736 Pennsylvania Bank case, to your point, I believe it was,

01:01 - 18.808 Judge Covey that, it's all regulation, right?

01:01 - 21.844 This is mandated by regulation in that case,

01:01 - 24.914 Department of Transportation.

01:01 - 27.083 It was found that it didn't

01:01 - 30.053 have a contract with the bank

01:01 - 33.890 involving a, a lender for automobile loans.

01:01 - 37.260 And I'm quoting from that case,

01:01 - 41.030 dot was legally required

01:01 - 45.735 under the motor vehicle code, and that's the regulation to follow the statute

01:01 - 50.339 right there was therefore no bargained for exchange and hence no consideration.

01:01 - 53.710 Accordingly, believe the Board of Claims aired

01:01 - 57.013 as a matter of law by concluding that there was a contract.

01:01 - 00.483 There's no question about any of that.

01:02 - 04.120 Judge Wolff, you're obviously right

01:02 - 08.925 that, it's not just that the contract and there is none must,

01:02 - 11.961 be to perform a government function.

01:02 - 15.665 It's that it must be to perform a government function

01:02 - 18.668 and a non ancillary one at that.

01:02 - 24.440 On behalf of the agency being asked for the records on behalf of the board,

01:02 - 27.744 you heard the board.

01:02 - 29.812 The board, council, state.

01:02 - 31.214 And it's in the record.

01:02 - 33.750 They don't do anything with these moneys.

01:02 - 38.154 Every time the petitioner mentions the Commonwealth in the brief,

01:02 - 42.225 I'd like you to ask yourself, were to ask petitioner to identify

01:02 - 45.595 exactly which Commonwealth agency is being talked

01:02 - 48.564 about.

01:02 - 51.667 In the Yankees case,

01:02 - 55.705 Judge Wolff, the Supreme Court,

01:02 - 59.275 credits this court heavily,

01:02 - 01.043 in language.

01:03 - 03.312 You're you're really buttering us up.

01:03 - 05.414 Well, I,

01:03 - 08.251 Your Honor, you make it easy.

01:03 - 11.254 And I mean that sincerely.

01:03 - 14.423 Because all the law is right on point here.

01:03 - 17.393 I mean, there's no question here.

01:03 - 20.563 And I know judge McCullough is remote.

01:03 - 23.332 You know, judge McCullough

01:03 - 26.335 issued a concurring opinion in East Stroudsburg,

01:03 - 30.640 which was credited and validated, along with Judge Ledbetter and Judge Levitz.

01:03 - 35.178 Concurring opinions in East Stroudsburg.

01:03 - 38.181 And Judge McCullough said very clearly,

01:03 - 43.085 confirming that criteria should be read to limit

01:03 - 47.156 or narrow the application for non parties where and I quote

01:03 - 50.693 a private entity has contracted to perform

01:03 - 55.331 a service for the government agency, and such service

01:03 - 58.568 is determined to be a government function

01:03 - 01.838 of that agency.

01:04 - 05.741 I know you're there.

01:04 - 11.180 So the last sort of part and I don't know that it's actually ripe

01:04 - 14.617 here is the question of whether or not the record is exempt.

01:04 - 19.922 The board doesn't have the record.

01:04 - 24.227 And so I don't know that the court

01:04 - 29.999 can really apply that exemption question,

01:04 - 33.636 or that it's the right here that only happens

01:04 - 35.171 if the board gets the document.

01:04 - 38.774 The board doesn't get the document unless, Your Honor is fine, that you know,

01:04 - 42.378 statute is, we need to see actual bank records

01:04 - 46.082 to determine that they're proprietary, to be exempt.

01:04 - 46.549 I mean,

01:04 - 50.186 you don't think we can make that determination?

01:04 - 51.020 Well.

01:04 - 52.889 Well, first of all, the board doesn't have it.

01:04 - 53.656 Have the documents.

01:04 - 56.659 But I don't think you you do need that,

01:04 - 59.996 there are there personal bank records?

01:04 - 02.365 There are two levels of exemption.

01:05 - 04.433 So there's the one under the right to know law,

01:05 - 07.970 but there's also one, the under the Gaming Act, under,

01:05 - 14.110 for a section 12 06F and 1207 two

01:05 - 18.047 and then 58 PA code 400 783.

01:05 - 21.984 That's part of this regulatory construct

01:05 - 26.455 that the legislature requires for the protection of third parties.

01:05 - 31.294 If third parties are being asked to turn over their private records,

01:05 - 34.630 the legislature says we can't be handing them out to people.

01:05 - 38.401 I want to touch on.

01:05 - 42.238 And by the way, those records, as one might think,

01:05 - 47.243 they contain, sensitive financial data, daily gross terminal revenue.

01:05 - 49.045 You heard counsel acknowledge.

01:05 - 53.182 And the court asked, you know, isn't all this stuff made public?

01:05 - 53.916 Right?

01:05 - 56.919 I mean, the question of the public's right to know

01:05 - 59.989 and obviously, this isn't coming from the public.

01:06 - 02.992 Mr. Vos is the requester.

01:06 - 04.894 I don't think he, you know, he withdrew his appearance

01:06 - 07.797 from the docket, and no one who works here and,

01:06 - 09.999 works that, that firm.

01:06 - 12.735 But, the question was, does the public

01:06 - 15.738 have the information to sort of audit,

01:06 - 18.074 my words, not yours.

01:06 - 19.742 And the answer is yes.

01:06 - 22.645 Right. The information's on,

01:06 - 24.380 a website monthly.

01:06 - 27.383 So why are they asking?

01:06 - 30.086 I mean, whoever they is, right? I mean, we can all guess.

01:06 - 31.620 It doesn't really matter.

01:06 - 34.390 But why write that?

01:06 - 38.494 And that it's got to be, Because as we assert

01:06 - 42.231 that it would provide a significant competitive advantage

01:06 - 47.370 to other market participants to know the daily inflows.

01:06 - 53.175 That's not information that's allowed to look at the reason why the requester

01:06 - 56.445 requests documents or information under the right to know law.

01:06 - 01.183 No, I mean, that's not a consideration.

01:07 - 05.554 But I raise it not to say like, they aren't allowed to ask for that, but

01:07 - 08.758 I think it is appropriate to ask here why.

01:07 - 13.062 And there's no wrong answer,

01:07 - 16.832 but the legal issue seems to be so clear.

01:07 - 22.004 This is being filed by incredibly competent counsel,

01:07 - 26.342 counsel for palm, whether it's them or not.

01:07 - 29.812 And, that's why and I don't want to dwell on it,

01:07 - 32.815 but we asked for fees here because it seems so egregious.

01:07 - 35.785 Okay. Thank you.

01:07 - 38.788 Thank you very much.

01:07 - 45.661 Your honor, it's just a few points on rebuttal.

01:07 - 48.697 First, with regard to any comments regarding

01:07 - 52.201 petitioner in this case, petitioner's job, his client's.

01:07 - 54.170 That's inappropriate.

01:07 - 58.407 And something the court has repeatedly held cannot be considered in relation to a

01:07 - 01.811 right to no law request I requesters motivation intent with

01:08 - 05.748 the records is simply not a relevant inquiry under the right to know law.

01:08 - 07.750 Second,

01:08 - 10.986 with regard to the request for fees that was mentioned at the end,

01:08 - 14.857 I know that one of the sections subsections cited in Parks's

01:08 - 18.794 brief permits these for a requester or an agency.

01:08 - 21.797 Parks is not the requester, it is not the agency,

01:08 - 24.700 and it's not entitled to fees under that section.

01:08 - 28.938 Further, there's no indication that this appeal is frivolous, meritless.

01:08 - 30.739 Brought in bad faith.

01:08 - 34.477 I think our spirited discussion today here indicates that this brings up

01:08 - 37.480 an unanswered question. Under the law.

01:08 - 39.648 Next, with regard to

01:08 - 43.652 exemption of the records, first of all, this point was never raised

01:08 - 47.490 until appeal before this court and section 708 of the rights.

01:08 - 51.594 No law requires the the agency to raise exemptions

01:08 - 56.599 which it did not hear with regard to confidential proprietary business records.

01:08 - 00.269 And to the extent that that can be considered

01:09 - 04.106 our our common sense understanding of what a bank statement is

01:09 - 07.910 belies any any notion that these are reflecting

01:09 - 11.013 any kind of trade secrets, or anything of that nature.

01:09 - 16.485 I ask you, how is this case any different than a restaurant with a liquor license?

01:09 - 20.122 Why would somebody be able to go in and request

01:09 - 25.194 all the documentation or the taxes that they're required to pay,

01:09 - 29.064 you know, and delve into their private business because the government

01:09 - 32.134 put it stamp of approval on it to grant them

01:09 - 35.838 the opportunity to operate a restaurant with the liquor license.

01:09 - 37.940 My answer would be no, Your Honor.

01:09 - 39.875 And that's because they're

01:09 - 44.113 this is a unique relationship, this tax sharing relationship, the revenue

01:09 - 47.783 sharing where a portion of those profits goes straight to the Commonwealth.

01:09 - 51.654 But even to the extent that that holding would subsume

01:09 - 54.957 records from other, other licensed entities

01:09 - 59.261 that hold any Commonwealth funds, I think that only goes to further

01:09 - 00.663 the purpose of the right to know law

01:10 - 04.533 and prohibiting secrets and scrutinizing the actions of government officials.

01:10 - 07.670 So with that, I,

01:10 - 11.006 we ask that the court reverse the of our Office of Open Records.

01:10 - 13.609 Thank you. Thank you very, very much.

01:10 - 17.646 Very interesting case.

01:10 - 22.184 Next before the court are the preliminary objections or pose of respondents.

01:10 - 25.688 The Commonwealth of Pennsylvania Governor Josh Shapiro.

01:10 - 29.625 Kim Ward, in her official capacity as president pro

01:10 - 31.927 tempore of the Pennsylvania Senate.

01:10 - 35.531 And Joanne McClintock, in her official capacity

01:10 - 38.634 as a speaker of the Pennsylvania House of Representatives,

01:10 - 43.105 to a petition for review filed by petitioners K.J.

01:10 - 46.875 Warren, Khalid Brockman, Jr, David Macaulay,

01:10 - 49.945 Ashley Skelly, Judson Rideout,

01:10 - 53.816 Faith Pepe, Daryl Cheryl, Alan Way,

01:10 - 57.319 and Zachary Sellers, Jessica Schmidt,

01:10 - 00.656 Andrew Collie, Jason Hice,

01:11 - 03.659 Dustin Galasso, Robbie Robertson,

01:11 - 08.797 Shannon Sword, Heather Hice, and Scott Welsh on behalf of themselves

01:11 - 12.735 and all persons similarly situated, seeking equitable

01:11 - 16.939 declaratory and or mandamus relief relating to the right

01:11 - 21.343 to counsel of indigent defendants facing criminal charges in the Commonwealth.

01:11 - 25.948 Petitioners have filed this class action seeking equitable

01:11 - 30.886 declaratory and or mandamus relief, seeking to protect the rights to counsel

01:11 - 33.188 due process and equal protection

01:11 - 36.759 of the laws for indigent people charged with crimes in the Commonwealth.

01:11 - 40.496 In their petition for review, petitioners note

01:11 - 44.867 that the Commonwealth has delegated nearly all funding and oversight

01:11 - 48.871 responsibilities for indigent defense services to the counties,

01:11 - 53.509 an approach they argue has failed because too many counties

01:11 - 56.845 have shown a lack of capacity or political will

01:11 - 00.182 to adequately fund or supervise these services.

01:12 - 04.420 As a result, petitioners state that indigent Pennsylvanians

01:12 - 10.359 regularly face criminal prosecution without effective assistance of counsel

01:12 - 13.329 at each stage of their criminal proceedings.

01:12 - 18.200 Specifically, petitioners raise the following counts in their petition for review.

01:12 - 20.369 Violations of the

01:12 - 23.439 right to counsel under the Sixth and 14th Amendments

01:12 - 27.609 to the United States Constitution, pursuant to 42 U.S.C.

01:12 - 31.513 section 1983 and the Pennsylvania Cause of Action

01:12 - 34.516 announced in Karen v Luzerne County.

01:12 - 38.120 Violations of the right to counsel under article

01:12 - 41.256 one, section nine of the Pennsylvania Constitution.

01:12 - 46.762 Violations of the Equal Protection and Due Process Clauses

01:12 - 52.634 of the 14th Amendment to the United States Constitution, pursuant to 42 U.S.C.

01:12 - 56.205 section 1983 and equitable causes of action.

01:12 - 00.676 Violations of the equal protection of the laws

01:13 - 03.679 as guaranteed by the Pennsylvania Constitution.

01:13 - 07.616 Article one, section one and sections one and 26,

01:13 - 12.354 and article three, section 32 and mandamus.

01:13 - 15.991 The duty on the Commonwealth to ensure that indigent people

01:13 - 20.295 receive effective assistance of counsel when they are charged with crimes

01:13 - 21.497 by the Commonwealth.

01:13 - 26.301 Pursuant to the Sixth and 14th Amendments to the United States Constitution

01:13 - 30.672 and Article one, section nine of the Pennsylvania Constitution.

01:13 - 34.676 Each of the name respondents filed their own post

01:13 - 39.415 seeking dismissal of the action, largely related to the posture of the case.

01:13 - 42.985 Among the arguments raised is whether this question

01:13 - 46.121 is more properly decided in the state legislature.

01:13 - 49.858 With that, let's listen to the argument.

02:15 - 01.893 These three cases

02:15 - 04.996 present an issue regarding the timeliness of process,

02:15 - 09.034 a written communications evidencing an intention to appeal

02:15 - 13.905 and adjudication of a state administrative agency received

02:15 - 18.143 and processed in accordance with section 211 of the Commonwealth Court.

02:15 - 20.612 Internal Operating Procedures.

02:15 - 25.317 The question presented here is how these communications should be treated

02:15 - 30.222 when they are one day late, as compared to ancillary petitions for review.

02:15 - 35.494 Should process communications like ancillary petitions for review

02:15 - 40.198 be treated as timely filed if received one day late?

02:15 - 43.201 Based on the reasoning that the communication

02:15 - 47.239 must have been placed in the mail on the last day to file the appeal,

02:15 - 51.309 the Unemployment Compensation Board of Review

02:15 - 55.046 filed applications to quash based on on timeliness.

02:15 - 58.517 The court stayed merits briefing and directed

02:15 - 01.520 briefing only on the board's motion to quash.

02:16 - 04.523 The court also invited amicus,

02:16 - 07.792 or friend of the court briefs from Philadelphia.

02:16 - 10.128 Legal assistance.

02:16 - 13.165 The board argues that the appellate rules

02:16 - 17.068 provide clear instructions on how to obtain the benefit

02:16 - 21.806 of the date of deposit, which is to obtain the required postal service form,

02:16 - 26.444 or at the very least, provide some sort of evidence showing

02:16 - 31.783 why such a form was not available, or some sort of evidence that could serve

02:16 - 34.920 as the functional equivalent of the required form.

02:16 - 38.924 Without such a form or any other evidence.

02:16 - 42.194 The date of receipt must control.

02:16 - 46.431 The board maintains that Rule of Appellate Procedure 1512

02:16 - 51.937 sets forth a 30 day appeal period, not a 31 day appeal period,

02:16 - 55.407 and that the sole evidence before the court here

02:16 - 59.444 is that these claimants mailed their petition via first class mail,

02:16 - 03.348 with no form or evidence to support the date of deposit

02:17 - 06.785 which was received after the appeal deadline.

02:17 - 11.456 Accordingly, the board argues that these appeals are untimely

02:17 - 14.426 and that its motions to quash should be granted.

02:17 - 17.896 Amicus Philadelphia Legal

02:17 - 22.400 Assistance states that the board focuses exclusively on an argument

02:17 - 27.472 that the petitioners have not establish a basis for nunc pro tunc relief.

02:17 - 31.276 However, amicus argues that petitioners need

02:17 - 35.680 not explain their own timeliness or argue for nunc pro tunc relief

02:17 - 40.085 because their appeal should be found timely based on when they were mailed.

02:17 - 44.089 Anarchism maintains that these cases provide

02:17 - 48.493 this court with an opportunity to clarify and hold

02:17 - 53.999 that the same reasonable approach to timeliness followed under rule 1514

02:17 - 58.436 should apply equally to pro se written communications

02:17 - 02.874 that evidencing an intent to appeal an agency decision.

02:18 - 06.344 With that, let's listen to the argument.

02:18 - 07.512 Good afternoon.

02:18 - 08.913 May it please the court again?

02:18 - 11.316 My name is Caleb Curtis Anderson.

02:18 - 12.617 I'm an attorney representing

02:18 - 15.787 the Unemployment Compensation Board to review on this matter.

02:18 - 20.358 Before I begin, I would respectfully request, two minutes for rebuttal.

02:18 - 22.661 You have it. Thank you.

02:18 - 25.897 Jurisdiction is the

02:18 - 29.567 predicate upon which a consideration must rest.

02:18 - 32.737 And in this case, there's,

02:18 - 35.974 No matter how tempting it may be, seem to reach the merits,

02:18 - 39.644 the jurisdictional hurdle of the petitions

02:18 - 42.814 for review being received one business day after the deadline.

02:18 - 46.084 Means that unfortunately for these petitioners,

02:18 - 49.954 the this court cannot reach, the merits of any of their appeals.

02:18 - 55.493 Under rule of appellate procedure 1514.

02:18 - 01.333 The rule, as it was in place at the time indicated that if a petition is filed

02:19 - 06.971 by first Class express or priority United States Postal Service mail,

02:19 - 11.209 it is deemed received by the entry based on what,

02:19 - 17.716 either the data deposit if a form 3817 certificate of mailing is used,

02:19 - 20.919 otherwise it's the date that it's actually received

02:19 - 23.855 by the, person attorneys office in this case.

02:19 - 26.458 How do we we struggle with Miller, though.

02:19 - 29.461 The Supreme Court stated that even though

02:19 - 32.664 the form wasn't timestamped, which was required,

02:19 - 37.469 there was a manifest intention that it was filed timely.

02:19 - 39.037 And they so found.

02:19 - 40.071 So what do we do here?

02:19 - 44.242 If we know based on what it was received and there was a postmark,

02:19 - 48.413 how that's distinguishable from the Miller case, certainly, Your honor.

02:19 - 52.117 And Miller was a is distinguishable

02:19 - 54.953 for several reasons at first.

02:19 - 58.923 In in Miller, it wasn't just that we had a postmark.

02:19 - 01.626 There was actually an affidavit in the record

02:20 - 04.596 that was submitted by the attorney, indicating

02:20 - 08.066 when the petition for review had been mailed.

02:20 - 12.270 There was a certified mail form which back at that

02:20 - 15.273 time would have been considered,

02:20 - 17.675 acceptable proof of

02:20 - 20.645 to use for the date of receipt.

02:20 - 22.981 However, they weren't able to do that

02:20 - 25.984 because I believe the post office box

02:20 - 29.187 that would have had to stamp it was closed at the time.

02:20 - 33.691 Additionally, there was, in this affidavit, information

02:20 - 39.931 about why they couldn't get a form 3817 due to a closure of the post office.

02:20 - 41.499 How is that any different, though?

02:20 - 44.903 Why would you need an affidavit here if there is a postmark?

02:20 - 49.974 So, you know, when it was mailed and the reason for why it wasn't mailed

02:20 - 53.645 sooner doesn't seem to come into play in the Miller case.

02:20 - 55.680 Like it was there.

02:20 - 58.650 But I don't know if that was a distinguishing factor

02:20 - 01.386 or a reason why the Supreme Court decided the way it did.

02:21 - 03.421 Well,

02:21 - 06.224 respectfully, Your Honor, I'm not I'm not sure I agree with that.

02:21 - 09.828 And that's because of the, you know, the additional evidence.

02:21 - 15.066 It was basically we would have had a form 38 and 17, but we did not.

02:21 - 17.302 And here's the reason why we didn't have it.

02:21 - 20.305 And certainly if they had had a form 3817,

02:21 - 23.274 it would have been timely filed here.

02:21 - 26.110 There's no form 3817 at all.

02:21 - 30.782 So, in comparison to Miller, where there would have been a form,

02:21 - 36.654 but for, an issue with the post office, what's the purpose of the form? 3817

02:21 - 40.859 so the form 3817

02:21 - 45.697 is the post office saying this is when it was deposited in the mail

02:21 - 50.068 and then under taken in conjunction with rule 1514,

02:21 - 54.405 then we then basically you can get the benefit of the earlier date.

02:21 - 59.344 Normally you wouldn't get that, but with the form 3817, the post office

02:21 - 02.814 is essentially acting as the filing office on behalf of this court.

02:22 - 07.485 So if so, that putting it into the

02:22 - 11.489 it shows that it was mailed timely.

02:22 - 14.359 The form 3817 would show that

02:22 - 18.530 it was essentially we're essentially saying it was received

02:22 - 24.269 as of the date on the on the form 3817 by the post office. Yes.

02:22 - 28.640 And so if there's a postmark on a letter,

02:22 - 33.177 do we also not realize

02:22 - 36.180 that it must know it was given

02:22 - 40.518 received by the post office as of the date of the postmark?

02:22 - 42.887 Well, and

02:22 - 45.156 the problem with that, Your Honor, is that

02:22 - 48.426 although the postmark might have been dated before, and

02:22 - 52.363 I believe in at least one of these cases, the postmark was was printed.

02:22 - 54.999 So it's easy to read. But,

02:22 - 57.835 you know, it's certainly the board's experience because,

02:22 - 01.506 you know, we get a lot of, postmarked appeals from referee decisions.

02:23 - 03.441 It's hard to read sometimes.

02:23 - 07.111 Sometimes there is no postmark or it's illegible. So.

02:23 - 09.047 And if the

02:23 - 12.150 rule were, the rule easily could have been written in such a way.

02:23 - 15.853 For example, rule 121 A, which is referenced in.

02:23 - 18.690 This makes specific reference to a postmark.

02:23 - 22.527 If the rule said if the petition review has a postmark on it,

02:23 - 24.095 then that would be the end of the story.

02:23 - 25.597 But the rule doesn't say that.

02:23 - 28.600 It says you have to have the form.

02:23 - 31.269 Otherwise we're going with the date received.

02:23 - 33.638 And and then that's what gets me back to the Miller case,

02:23 - 37.041 because it says, quote, because it was mailed after 5 p.m..

02:23 - 40.311 No date stamping was possible.

02:23 - 44.115 And so if you have a letter with no postmark on it,

02:23 - 47.585 then sadly, maybe the claim is going to be out of luck

02:23 - 48.886 because there would be no proof.

02:23 - 52.357 And I'm sure everybody gets a lot of mail with no postmark.

02:23 - 54.826 But frequently there is a postmark.

02:23 - 59.097 So here when there is a postmark, why can't we rely on that?

02:23 - 02.100 Well you're out. I'm sorry.

02:24 - 04.736 Because in the other case, there was no stamp.

02:24 - 07.305 Correct.

02:24 - 08.439 You're on.

02:24 - 10.708 Yeah. There was no stamp in in Miller.

02:24 - 12.877 But again,

02:24 - 14.712 there was the affidavit explaining

02:24 - 18.983 basically we don't have this form, but here's why we don't have the form.

02:24 - 23.054 And I don't understand how the explanation provides any different result.

02:24 - 27.659 Well, and, Your Honor, I think that's because, I mean,

02:24 - 33.531 although Miller I mean, this court obviously is bound by Miller,

02:24 - 34.399 as is the board.

02:24 - 38.002 But we would respectfully argue

02:24 - 43.675 that the absence of any sort of additional evidence

02:24 - 48.680 about, you know, why a form was not available is a distinguishing factor.

02:24 - 51.416 And I but here we have to look at what we're dealing with.

02:24 - 54.118 This is unemployment compensation

02:24 - 57.221 for people that are in need of financial assistance,

02:24 - 59.991 who become unemployed through no fault of their own.

02:24 - 03.961 So why are we going to put a barrier up that's going to make it more challenging

02:25 - 07.298 to achieve benefits when it's a remedial statute?

02:25 - 12.570 Well, Your Honor, while unemployment compensation is certainly a remedial

02:25 - 16.708 statute, whatever rule is established by the court here in a,

02:25 - 19.777 an interpreting rule 1514

02:25 - 22.680 is going to impact not just you see cases,

02:25 - 28.352 but any appeal involving, petition for review under 1514.

02:25 - 31.422 So, it wouldn't be appropriate

02:25 - 36.694 to impute the remedial purpose of the, you see law to then rewrite the

02:25 - 40.698 Pennsylvania Rules of appellate procedure, because this is going to impact,

02:25 - 45.470 appeals and, you know, hundreds if not thousands of other cases.

02:25 - 47.338 I have a question over here.

02:25 - 48.072 Certainly.

02:25 - 51.876 Wouldn't using the postmark actually ensure

02:25 - 55.980 uniformity and equality among the people dropping the stuff into the mail?

02:25 - 01.052 Because that way, whoever drops it in the mail gets the benefit of the postmark

02:26 - 02.019 on that given day.

02:26 - 06.157 Otherwise the person's at the mercy of whether or not it makes it.

02:26 - 08.526 It might take two days. It might take three weeks.

02:26 - 13.197 So people aren't treated similarly.

02:26 - 13.664 Well.

02:26 - 17.135 And and, your Honor, that might very well be what happened here.

02:26 - 21.005 I know, because we did have one appeal that was mailed out

02:26 - 24.675 from the state of Tennessee, and then the other two were were mailed out from,

02:26 - 26.944 from within the Commonwealth.

02:26 - 29.947 And certainly everyone's aware that sometimes, you know, mail

02:26 - 34.552 arrives sooner, even if it's just coming from, you know, Harrisburg

02:26 - 38.589 to Philadelphia, it might not take as long, but, the problem is, again,

02:26 - 43.628 you can drop something in the mail and we have a postmark,

02:26 - 47.632 but again, the postmark might be illegible or it might be missing a postmark.

02:26 - 51.402 So we're really stuck with well, hopefully there's a postmark.

02:26 - 52.537 Hopefully we can read it.

02:26 - 55.173 But date of receipt is something verifiable.

02:26 - 58.342 The profanity knows when it receives something.

02:26 - 03.181 So by using the date of receipt by the,

02:27 - 06.350 profanities office, unless a form is

02:27 - 09.587 used, that's actually the uniformity that. So

02:27 - 14.525 If you were on the Appellate Rules Committee

02:27 - 18.196 and you were coming up with suggestions, and he is on the Appellate Rules Committee

02:27 - 21.966 and, would you consider

02:27 - 25.436 some alternative, like the postmark is to be used unless there's

02:27 - 29.073 not one you'd want available, then like what would the solution be?

02:27 - 32.176 Well, I mean, again, Your Honor, as a

02:27 - 36.514 as I noted a little earlier, rule 121 eight does use the term postmark.

02:27 - 37.481 So certainly

02:27 - 41.652 the rule could say we can use a postmark if there's a postmark available.

02:27 - 44.655 But that's not how the rule is currently written.

02:27 - 47.758 The the rule says you have to use,

02:27 - 51.395 a 3817 or it's, the date received.

02:27 - 56.634 Now, the rule was, I should note, just modified at the end of 2023,

02:27 - 02.673 which became effective, January of last year and additional forms were added.

02:28 - 03.975 Now, that doesn't

02:28 - 08.479 help these particular petitioners because there's predate the amendments.

02:28 - 10.715 But under the new rule, you can use,

02:28 - 13.618 not just the certificate of mailing.

02:28 - 16.854 You can use the form 3800, a receipt for certified mail.

02:28 - 19.724 You can use a receipt for registered mail.

02:28 - 24.996 So, this isn't a rule that hasn't gone unamended since the 1980s.

02:28 - 30.034 Certainly the the Pennsylvania Supreme Court, the Pennsylvania Appellate Rules

02:28 - 33.304 Committee is familiar with, this rule

02:28 - 36.307 and in fact, recently amended it. And,

02:28 - 40.344 the fact that it was just recently amended and postmarked

02:28 - 43.581 wasn't added would would seem to be clear

02:28 - 46.617 evidence that they're not intending for postmark to be,

02:28 - 50.788 used in determining the date

02:28 - 54.959 that an appeal should be considered received by this court is.

02:28 - 56.060 I'm sorry.

02:28 - 56.928 Oh. I'm sorry. Go ahead.

02:28 - 57.228 Please.

02:28 - 00.231 It's one of the concerns that your client has,

02:29 - 02.900 the fact that there's a difference

02:29 - 07.138 between the United States Postal Service dates

02:29 - 12.443 as a postmark and private postal machines that law firms have

02:29 - 17.682 that individuals may have access to through applications on their,

02:29 - 21.686 on their, computer, that you can actually put whatever date you want

02:29 - 25.356 on a postage,

02:29 - 28.326 stamp, when you print it,

02:29 - 30.628 as a private postage

02:29 - 33.631 meter, is that a factor for your,

02:29 - 35.299 well,

02:29 - 37.635 I will say the the board,

02:29 - 40.571 you know, doesn't really have a,

02:29 - 43.274 have a particular,

02:29 - 46.544 far on what, how the rule should be if it

02:29 - 50.014 if it should be amended, if it should include postmark or not,

02:29 - 51.716 because we have our court not to cut you up,

02:29 - 54.785 but our court has recognized the difference between private

02:29 - 57.755 postage meters and the US Postal Service.

02:29 - 59.190 Postage dates.

02:29 - 02.760 Yes. And and, your Honor, I do believe that in the rule,

02:30 - 06.397 it only allows for a United States Postal

02:30 - 09.367 Service, form and,

02:30 - 14.071 presumably that's because, you know, it's a branch of the United States government.

02:30 - 15.673 We can,

02:30 - 18.309 we can infer some reliability

02:30 - 21.679 and in their methodology and things of that nature.

02:30 - 27.218 So the rule doesn't allow for these private meter marks or things like that.

02:30 - 31.856 Certainly in the administer, in the lower appeals, you know, from,

02:30 - 36.394 department determinations or decisions, our regulations

02:30 - 39.964 do allow for the use of, postmarks and things like that.

02:30 - 42.933 But again, this is the I'm sorry.

02:30 - 45.636 No, that's okay. I,

02:30 - 47.338 want to jump back to Miller for a second,

02:30 - 51.308 and this is a bit on the lines of what Judge Wolfe was just asking you.

02:30 - 54.211 It makes reference to,

02:30 - 59.483 when the, record is without dispute, then.

02:30 - 02.887 And is there a circumstance then in your mind where the U.S.

02:31 - 04.922 postmark could be in dispute?

02:31 - 07.925 Oh, well, Your Honor, I don't

02:31 - 11.796 maybe dispute isn't exactly how I would phrase it,

02:31 - 15.733 but I do think it would be, perhaps that if there is no postmark, then.

02:31 - 16.634 Then you can't use it.

02:31 - 19.303 Or if it's hard to read, you know, is it a five?

02:31 - 21.772 Is an eight. Is this a zero? Is this an eight?

02:31 - 25.743 So, I don't think that in this case there's a dispute.

02:31 - 28.112 About what the postmark says.

02:31 - 32.550 But again, I would just return to, my prior statement about,

02:31 - 35.886 you know, the rule easily.

02:31 - 39.623 Could say postmark could have recently been amended to say postmark.

02:31 - 40.458 It doesn't.

02:31 - 42.660 And I believe that that, controls,

02:31 - 47.398 and, I,

02:31 - 49.967 I know we've discussed,

02:31 - 53.137 Miller at length, there were additional cases

02:31 - 56.540 that the court had asked the parties to, brief.

02:31 - 59.543 I would just like to discuss those briefly.

02:31 - 02.546 There was the Alston case, which,

02:32 - 05.649 I don't believe that case is really implicated here.

02:32 - 08.953 And the reason for that is, if Your Honor, recall,

02:32 - 11.956 in Alston, it was, it was a pro se letter,

02:32 - 17.428 showing, an intent to appeal and then they had the, petitioner

02:32 - 21.165 had to file a perfected petition for review, which they did.

02:32 - 26.804 And in that case, there was a question about, well, should that be allowed

02:32 - 31.442 to, you know, even though this court's, internal operating procedures

02:32 - 35.913 use the term received, they did get the date of the, earlier,

02:32 - 40.751 data deposit, because in that case, Alston did use a certificate of mailing.

02:32 - 47.091 So, we're not saying that they didn't file, evidence in intent to appeal.

02:32 - 50.027 It's just that the date

02:32 - 53.831 that we have to use for these petitioners is the date that it was received.

02:32 - 55.266 Because there was no certificate

02:32 - 58.269 of mailing in Alston, there was a certificate of mail in,

02:32 - 03.541 your honors also asked, us to brief the Mitchell case,

02:33 - 06.544 which was a Pennsylvania Supreme Court case.

02:33 - 09.547 Unfortunately, there's really not

02:33 - 12.516 it was a per curiam order.

02:33 - 15.386 I contacted the attorneys office.

02:33 - 20.157 There's there's really nothing else other than the court's citation to,

02:33 - 21.458 the Miller case,

02:33 - 25.796 which we've already discussed at length, as well as a case called Smith.

02:33 - 30.067 But that was a case involving, an inmate, and a prisoner

02:33 - 33.070 mailbox issue, which obviously implicates different,

02:33 - 37.007 ideas of due process and what's possible

02:33 - 41.612 for an incarcerated individual to do, in regards to filing an appeal.

02:33 - 48.152 So. Mickey

02:33 - 51.155 references rule 211 in their brief,

02:33 - 54.792 the this court's, internal operating procedure and,

02:33 - 59.830 just to briefly touch on that, I would note that you can cure

02:33 - 04.435 almost any defect with within initiating filing with this court.

02:34 - 08.372 If you file your petition for specialized review,

02:34 - 11.775 and you were supposed to file a petition for review, that can be corrected

02:34 - 15.846 if you file a pro essay letter and you should have filed a petition.

02:34 - 19.383 Well, you have the ability to correct that.

02:34 - 22.386 If you file with the Superior Court instead of with this court,

02:34 - 25.589 you can correct that, but you can't correct

02:34 - 30.160 that all assumes that you filed something in a timely fashion.

02:34 - 33.364 You can't cure a jurisdictional defect because it goes to

02:34 - 37.101 the ability of the court to hear the case in the first instance. So,

02:34 - 39.503 while I

02:34 - 42.673 understand, Mickey's argument about, well,

02:34 - 47.111 you know, are we being unduly harsh or is there a conflict here?

02:34 - 50.080 Well, respectfully, I don't think there is a conflict.

02:34 - 53.884 And to the extent there's a conflict between how the internal

02:34 - 56.887 operating procedure is written and the rules,

02:34 - 59.790 the operating procedure would have to bend to the rule.

02:34 - 04.895 But it does seem that, the rule is the IOP and the rule are,

02:35 - 11.935 you know, treated in tandem so that if you do file a pro se letter with the court,

02:35 - 16.006 but it's received within that 30 days, then we will let you correct it.

02:35 - 20.477 So if you have, a form, you get the data deposit,

02:35 - 24.315 but if you just file something with a first class postmark, which is what

02:35 - 28.452 the petitioners did in this case, then you're stuck with the, you're stuck

02:35 - 31.722 with the date that it was received by the sheriff's office.

02:35 - 34.725 Do you really care where we land?

02:35 - 37.428 As long as there's a bright line rule.

02:35 - 41.365 In other words, if if we said in a ruling

02:35 - 45.803 a USPS stamped envelope

02:35 - 51.575 the day prior to the deadline received pursuant to Miller is timely.

02:35 - 53.177 Like if we said that,

02:35 - 57.214 does that matter to the board?

02:35 - 01.485 As long as it's a bright line rule and then everybody follows that.

02:36 - 04.922 How do you feel about that?

02:36 - 10.027 Well, I don't want to necessarily put the, the members of the board on the spot.

02:36 - 13.063 You're on your client's you're you're here to represent them.

02:36 - 16.467 But I would say, that would certainly be a clear rule.

02:36 - 20.003 Unfortunately, I just don't believe it's currently supported with the way.

02:36 - 23.240 But the rule of appellate procedure is, is currently written.

02:36 - 25.008 So I'd say there'd be an inconsistency.

02:36 - 27.010 But isn't that before us now?

02:36 - 31.715 And isn't isn't that a ruling that's susceptible to the facts in this case?

02:36 - 36.687 Were all of the petitioners or all of the applicants who were USPS

02:36 - 40.391 mailed stamped envelopes?

02:36 - 43.894 And so can't we make that ruling? I,

02:36 - 48.365 I would say, Your Honor, that it

02:36 - 52.002 unfortunately, I don't think it's I don't think the use of the postmark,

02:36 - 55.105 while it may seem clear, I don't believe it's supported, by the way, that the,

02:36 - 58.742 rule of appellate procedure as it's written.

02:36 - 02.045 I don't believe that's a supportable, interpretation.

02:37 - 05.015 And that rule is subject to the Supreme Court ruling.

02:37 - 08.118 Rulings, correct. Your honor.

02:37 - 08.585 All right.

02:37 - 11.588 Well, thank you very much.

02:37 - 35.546 Good afternoon, Your Honor.

02:37 - 36.880 And may it please the court.

02:37 - 38.615 My name is Julia Simon. Michelle.

02:37 - 42.319 And today I represent Philadelphia Legal Assistance as an amicus party

02:37 - 47.024 in support of petitioner's argument that their appeal should be found timely.

02:37 - 50.461 Now, as several judges

02:37 - 54.064 just explained, there is no dispute

02:37 - 59.503 in this case from any party that the petitioner was mailed

02:37 - 03.207 their letters within the 30 day

02:38 - 06.710 period, as verified by the USPS.

02:38 - 08.846 Postmark on the envelopes.

02:38 - 11.215 What petitioners are asking

02:38 - 14.218 today is not an expansion of jurisdiction.

02:38 - 19.156 What petitioners are asking is simply that this court does not read

02:38 - 23.927 rule or section 211 in a different manner

02:38 - 28.265 than the Rule of Appellate Procedure 1514,

02:38 - 33.170 in essence, that this section should be considered, as this court laid out in La

02:38 - 37.341 Roca, a process through which the court provides petitioners

02:38 - 40.410 an opportunity to amend and clarify

02:38 - 43.480 and prominently filed appeals.

02:38 - 46.817 Any other interpretation that creates more of a limit

02:38 - 52.222 on the timeline that petitioners have to appeal to this court

02:38 - 57.294 creates a harsher standard for petitioners in this situation.

02:38 - 01.131 Jobless workers going through the unemployment compensation system,

02:39 - 03.233 then litigants with counsel.

02:39 - 06.136 What do we do if we agree with you?

02:39 - 08.739 And I think the board's a little concerned about that,

02:39 - 11.742 we will be making a bright line rule.

02:39 - 16.380 So you get the envelope that has no postmark on it, or it's fuzzy

02:39 - 19.616 and you really cannot decipher what the date is.

02:39 - 24.488 How would you apply that situation if we would rule in your favor?

02:39 - 25.355 Certainly.

02:39 - 29.192 And actually, I think Miller answers that question because Miller lays out

02:39 - 33.297 that what the substantial compliance doctrine means

02:39 - 37.301 is that timeliness can be determined from the face of the document,

02:39 - 40.504 or an examination of the court's internal records,

02:39 - 43.340 and no additional evidentiary hearing is needed.

02:39 - 45.709 Right. That is, the rule is laid out by Miller.

02:39 - 49.179 So, absolutely, if there is an identifiable U.S.

02:39 - 49.713 postmark.

02:39 - 54.651 And I just brought an example with me here today of what a postmark is, it's

02:39 - 58.488 literally when the post office receives it, right?

02:39 - 02.259 If if a, if a letter is dropped in a USPS blue box

02:40 - 05.262 or handed to a mail carrier, it doesn't get a postmark at that point.

02:40 - 06.964 It's only when it goes to the office,

02:40 - 10.367 which is the same thing that happens when somebody in office stamps right

02:40 - 11.702 here on this form.

02:40 - 16.373 It a postmark is only

02:40 - 19.376 used really to be able to x out the postage rate.

02:40 - 21.778 That's the whole reason for a postmark.

02:40 - 25.849 And so you can see right on this one there's a clear, date.

02:40 - 31.355 So when there's a clear date that should rule when there's not a clear date.

02:40 - 34.324 Your honor, I understand that that presents an issue, but I think

02:40 - 38.128 Miller actually addressed that as well, because Miller applied

02:40 - 43.066 logical reasoning that if a if a letter was received,

02:40 - 47.137 envelope was received the day after the appeal period, then

02:40 - 51.808 by almost just definition, it must have been placed in the mail

02:40 - 54.511 during the appeal period. Right.

02:40 - 56.046 So I think you can expand it.

02:40 - 59.983 I'm sorry, but that's that's still only if it has a postmark,

02:40 - 03.654 because I'm not saying that this has ever happened,

02:41 - 06.657 but there is a possibility that that I'm alone

02:41 - 11.328 could have ended up in that office the day, the day after,

02:41 - 14.831 and not have gone through the mail process.

02:41 - 15.632 Right?

02:41 - 18.235 Meaning somebody could have dropped it off.

02:41 - 18.902 They could have.

02:41 - 21.471 I'm not saying it happens after thinking. Right.

02:41 - 26.576 But it it could happen because if there is no postmark, how do we know that?

02:41 - 30.547 How do we know when it actually made it to the

02:41 - 33.517 the front office or the mail room in that building?

02:41 - 37.688 So I can't speak exactly

02:41 - 40.691 to what the court's internal procedures are,

02:41 - 45.429 but if I may speak out of turn in most law firms or legal offices,

02:41 - 50.233 there is someone stamping a document, a letter as received as soon as they

02:41 - 54.304 pick it up, as the mail person drops off a pile of letters.

02:41 - 57.874 And so I can't speak for how that happens at the court.

02:41 - 01.378 And so I do think that if there was an issue with whether

02:42 - 05.348 there was evidence on its face that it had been mailed

02:42 - 09.086 right then this court would have the ability to discount that.

02:42 - 11.154 Right. Again, evidence on the face.

02:42 - 15.625 So I think that the Miller rules still protects in that situation.

02:42 - 20.030 And that's why the court does have the ability, think, to apply that

02:42 - 24.234 logical reasoning for appeals that are received the day after.

02:42 - 26.603 I'm not sure how much further you can push it. Miller.

02:42 - 29.840 Clearly push it a little bit further, because there is a weekend,

02:42 - 33.877 and they seem to understand the way the two Harrisburg post offices work together.

02:42 - 35.278 But generally speaking,

02:42 - 39.316 I think at least the day after is a pretty clear line for that reasoning.

02:42 - 41.918 And and just to be clear, you asked opposing counsel

02:42 - 44.921 if there was a solution here for a change in the rules.

02:42 - 46.356 And there is one.

02:42 - 48.158 It's in the board's regulations.

02:42 - 50.894 It's what they apply every single day,

02:42 - 53.897 which is that first you look at the postmark.

02:42 - 57.734 If there's not a postmark, then you look at one that's received.

02:42 - 01.505 That's section 101.82 of the boards regulations.

02:43 - 04.641 And we represent hundreds

02:43 - 08.011 and thousands and have represented thousands of claimants over the years.

02:43 - 09.846 Unemployment

02:43 - 13.150 compensation claimants almost never do anything other than drop

02:43 - 17.420 a piece of mail in the USPS box or hand it to their mail carrier,

02:43 - 21.992 because it's an additional burden at a time of great trauma and stress,

02:43 - 25.762 to always make it to a post office, to even know that there's a reason

02:43 - 28.832 to do that, as opposed to hand it to your mail carrier.

02:43 - 33.236 We actually have advised clients over the years not to mail,

02:43 - 36.006 their appeals.

02:43 - 38.608 During the unemployment compensation process, because we worry

02:43 - 42.412 if you put it in the USPS box, it might not get picked up for five days.

02:43 - 43.246 Right.

02:43 - 47.117 And so you risk that your appeal then becomes untimely.

02:43 - 48.285 Right.

02:43 - 52.355 And the same kind of element is applying and working here.

02:43 - 55.492 The reason, at least as far as we can tell,

02:43 - 59.329 that 1514 provide for these additional documents

02:43 - 03.400 is not to serve as a sword against those who did not use them.

02:44 - 06.136 But as this court laid out in Alston,

02:44 - 08.605 it is

02:44 - 12.776 hard to show for a claim it to make use of the US

02:44 - 17.080 Postal Service form to ensure timely filing.

02:44 - 19.082 The reason you get the form

02:44 - 22.786 is because you can't rely on when it's going to be postmarked, right?

02:44 - 25.288 But if it is postmarked in time,

02:44 - 28.558 that should not kick someone out of having a timely appeal.

02:44 - 32.729 That seems to be using, again, the kind of reading of the rule

02:44 - 35.732 against these claimants.

02:44 - 37.534 Which is why,

02:44 - 40.737 you know what, Miller and Austin and then,

02:44 - 43.740 what we barely know of Mitchell,

02:44 - 47.244 show that substantial compliance, right?

02:44 - 51.348 It doesn't have to be the letter of the rule, but substantial compliance

02:44 - 54.584 gets these claimants a timely appeal,

02:44 - 57.554 doesn't expand the deadline.

02:44 - 00.323 If anything, it keeps the same deadline.

02:45 - 04.628 Because if you say that they have, the court has to have received it by day

02:45 - 08.765 30, that means they only had till day 29 to mail it.

02:45 - 13.236 So if you go based solely on receipt, you actually are shortening

02:45 - 17.140 the appeal deadline for these litigants, which is

02:45 - 20.176 the exact opposite of what we want to be doing

02:45 - 23.847 and of what the Supreme Court laid out and has laid out about the rules

02:45 - 27.517 of appellate procedure, which is that they were adopted to ensure the orderly

02:45 - 30.520 and efficient administration of justice at the appellate level.

02:45 - 34.424 They were not intended, however, to be so rigidly applied

02:45 - 38.461 as to result in manifest injustice, particularly where

02:45 - 41.464 there has been substantial compliance and no prejudice.

02:45 - 44.734 And this is nowhere more important than in the application

02:45 - 47.938 of a remedial statute like the unemployment compensation law

02:45 - 51.741 that we ask here today.

02:45 - 55.378 And if there's nothing further from the court, that this court administer

02:45 - 58.715 justice in situations where pro se litigants have substantial,

02:45 - 02.252 fully complied with the rules governing petitions for review,

02:46 - 06.389 the court should find the communications initiating an appeal

02:46 - 09.326 are the equivalent of improvident filed appeals

02:46 - 13.029 for the purposes of determining timeliness, and thereby

02:46 - 17.000 allow pro se litigants the same rights to reach the merits of their cases.

02:46 - 19.502 Before this court.

02:46 - 19.736 Thank you.

02:46 - 22.739 You're on this.

02:46 - 34.351 If I may, Your Honor.

02:46 - 38.421 So, Judge Wolff to to respond to the last thing

02:46 - 42.659 that that was asked of me about, you know, how does the board feel about this?

02:46 - 45.662 I, I would again note that

02:46 - 48.798 while we are dealing with a remedial statute

02:46 - 54.137 in the context of these appeals, if the rule is changed or interpreted

02:46 - 58.608 by this court to include postmark, that's not going to just simply impact.

02:46 - 01.678 You see claimants, it's going to impact anyone

02:47 - 04.714 who files a petition for review under 1514.

02:47 - 08.985 So there's obviously going to be lots of other, individuals filing appeals

02:47 - 13.356 with this court who are not being given the benefit of looking at a remedial.

02:47 - 16.359 What would be the wrong thing to do about

02:47 - 19.229 I mean, why would that be wrong?

02:47 - 21.131 As was said,

02:47 - 25.068 is it possible to read

02:47 - 28.471 rule 1514 instead of

02:47 - 31.541 providing a sort

02:47 - 34.544 if you don't follow this year?

02:47 - 36.813 You you you're in trouble.

02:47 - 41.684 But just sort of illustrating the point that,

02:47 - 45.188 if this is evidence

02:47 - 48.258 that you did put it in and give it to the U.S.

02:47 - 53.029 Postal Service, if there's other evidence, why couldn't you use it?

02:47 - 54.664 You you made a point before that.

02:47 - 59.936 It's not specified there, but if it's interpreted that way,

02:48 - 04.774 what what's the harm

02:48 - 09.112 if somebody actually does get their petition

02:48 - 12.115 for review filed

02:48 - 15.518 with the Postal Service in a timely fashion,

02:48 - 19.956 why should their appeal period be reduced?

02:48 - 26.062 Oh, so, Your Honor, it's not necessarily that it's, you know, prejudice to the

02:48 - 29.933 to the board because it was received on day 31 instead of day 30.

02:48 - 32.936 It's just that the way the rule is written,

02:48 - 38.108 it it says it has to be a form or we're using the date received.

02:48 - 40.543 So, an a postmark is not a form.

02:48 - 41.945 It's a, it's a stamp.

02:48 - 45.315 So I respectfully I don't believe it's supported by,

02:48 - 48.351 that interpretation that, that although

02:48 - 52.355 rule 105

02:48 - 55.191 and let's see, I had it.

02:48 - 00.096 But now I don't have the exact language here, but rule 105 of the appellate rules

02:49 - 05.702 basically says we're supposed to interpret the rules to provide for the just fair,

02:49 - 09.172 you know, oh, thank, thank you.

02:49 - 12.308 Thank you.

02:49 - 13.209 I'll read it. Right.

02:49 - 17.013 I did have it up on my screen before, and then now I don't have it, but,

02:49 - 20.016 the rule, these rules

02:49 - 24.053 shall be liberally applied to secure the just speedy and inexpensive

02:49 - 28.324 determination of every matter to which they are applicable. All.

02:49 - 32.462 So if that's the rule we're interpreting,

02:49 - 36.132 why doesn't this rule help us?

02:49 - 38.001 Well, broaden that.

02:49 - 40.670 Well, Your Honor, rule 105

02:49 - 44.507 B indicates, you know, generally should be liberal

02:49 - 47.977 with extensions of time and deadlines, but not correct.

02:49 - 52.749 No, that's not with regard to expanding, enlarging the time.

02:49 - 56.286 So unless there's good cause.

02:49 - 57.153 Well, here.

02:49 - 00.490 But we may not enlarge the time for filing a notice of appeal.

02:50 - 03.459 But how are we enlarging the time here?

02:50 - 07.197 Because, Your Honor, if the rule says date received

02:50 - 12.335 and it wasn't received until day 31 and the form wasn't used them,

02:50 - 15.038 we have to say that basically they filed their appeal,

02:50 - 16.573 after

02:50 - 19.709 31 days, which would be expanding it, which is a strict rule.

02:50 - 20.176 Okay.

02:50 - 23.179 And I see the that argument.

02:50 - 25.782 Thank you, Your Honor.

02:50 - 27.183 Thank you.

02:50 - 30.286 Again, very well argued.

02:50 - 34.057 And it's an issue that we've been sort of struggling with.

02:50 - 37.060 As you can see from, for quite a while.

02:50 - 38.094 So thank you.

02:50 - 40.363 We appreciate your time.

02:50 - 43.366 Court is now adjourned.

02:50 - 55.778 Further.