00:11 - The honor roll.

00:12 - The Chief Justice and justices of the Supreme Court have had been.

00:18 - Oh, yay yay yay!

00:20 - All manner of persons who stand guard since one of us

00:23 - in this country now appear each year.

00:26 - God said, come on in this.

00:37 - Morning, everyone.

00:39 - Welcome to the first day of our oral argument session

00:43 - here in the Harrisburg courtroom of the Supreme Court of Pennsylvania.

00:48 - At our majestic state Capitol building.

00:51 - As you may know, the Pennsylvania Supreme Court

00:54 - is the oldest appellate court in North America, and our roots date

00:59 - back to William Penn's provincial court of 1684.

01:03 - Our Supreme Court was formally established pursuant to the Pennsylvania Judicial.

01:08 - Act Judiciary Act of 1722,

01:12 - and in 2022, we celebrated our 300th anniversary

01:17 - with a special session in Old City Hall.

01:21 - We are proud of our rich history and we're still here.

01:25 - Attorneys who have argued

01:27 - before this court are aware that I like to point out

01:30 - some of the splendid works of art displayed at our magnificent courtrooms.

01:35 - First, as you may have noticed, regrettably,

01:39 - this courtroom is not in its usual pristine condition.

01:44 - In July of 2020, we noticed

01:47 - water damage to the intricate plasterwork

01:50 - that adorns the northeast corner behind the bench.

01:53 - Since that time, our Supreme Court administrator, Chris Nays and our court

01:59 - crier, Brian Minner, have diligently worked with the Department

02:03 - of General Services and Capital Preservation, the

02:07 - the Capital Preservation Committee through its executive director,

02:12 - David Craig, to address the water intrusion.

02:15 - And what you can imagine is a daunting process

02:19 - in such historic courtroom.

02:23 - Following extensive repairs in 2023 and 2024,

02:28 - the court made the difficult decision to remove the damaged surfaces

02:34 - and allow the underlying masonry to dry.

02:38 - Thus, you will note that Moses has come down from the mountain.

02:43 - He's no longer in his normal spot.

02:46 - While we are optimistic that the exterior work resolve the issue,

02:51 - additional efforts

02:52 - may be necessary to prevent water from intruding into this space,

02:57 - and our court administration will continue to work diligently to restore

03:01 - this artistic treasure of the Commonwealth

03:04 - to its original grandeur.

03:07 - As architect Joseph Houston envisioned

03:09 - this building to be a palace of art.

03:12 - I encourage everyone in attendance to visit the rotunda,

03:17 - the Legislative Chambers, and the Governors Reception Room

03:20 - with an eye toward the beautifully created artwork, particularly

03:26 - the famous Violet Oakley murals installed

03:30 - throughout this courtroom in 1927.

03:33 - Violet Oakley was the first American

03:36 - female artist to receive a major public art commission,

03:40 - and she devoted over 25 years of her life to this project.

03:45 - Her murals on the evolution of law in

03:48 - this courtroom are simply spectacular.

03:51 - In 1927, Senator George Wharton.

03:55 - Pepper remarked that Oakley's murals

03:58 - would remind the justices of their solemn duty and the advocates

04:03 - to restrain their passions and compel candor,

04:07 - and that these paintings would serve as a silent

04:11 - but convincing witness to those things without which we build in vain.

04:18 - Before we hear the

04:19 - first case, I would like to remind Council of a few things.

04:23 - Appellants.

04:24 - Counsel, please approach the podium when your case is called.

04:28 - I will then give a short summary of the case.

04:31 - Please begin by introducing yourself and your co-counsel and identifying the party.

04:37 - Represent.

04:38 - The justices are familiar with your cases, so we ask that you avoid

04:42 - any unnecessary recitation of facts or procedural history,

04:47 - and instead focus on the main issues on which we granted review.

04:51 - Counsel is welcome to rely on their briefs for particular issues.

04:55 - In cases where there are multiple parties represented by separate counsel, counsel

05:00 - should avoid repeating the same arguments as prior counsel.

05:04 - Please try not to interrupt the justices when we are asking you

05:08 - a question of justice.

05:09 - This question is not meant to trip you up.

05:12 - Rather, it indicates there are particular issues we wish to explore further.

05:18 - I remind you that we do not allow rebuttal.

05:22 - Finally, while we have no set time limit for your argument, I will advise counsel

05:27 - when the court is satisfied that all of its questions have been answered

05:31 - and at that time I will ask that you conclude your argument.

05:35 - Mr. Minner, please call the first case.

05:39 - I'm Neil O'Donnell from Kingston, Pennsylvania.

05:42 - And I'm pleased to be here today to serve as a commentator

05:45 - on the Supreme Court arguments scheduled for this week.

05:50 - And I'm Candace Hall with the law firm of McNeice Wallace in Newark.

05:55 - I am your other commentator

05:57 - for this week's arguments before the Pennsylvania Supreme Court.

06:00 - Pennsylvania Supreme Court is the oldest court in the United States.

06:04 - It's the first supreme court in the United States.

06:07 - You know, for practitioners across the Commonwealth, we recognize that the law

06:12 - of the Commonwealth of Pennsylvania is what the Supreme Court says it is.

06:17 - With that, we'll begin with the first argument.

06:21 - Before the court, this week, it's the matter of R.I.

06:25 - Settlement Trust versus Samsung fire and Marine.

06:28 - This case involves four victims of sex

06:32 - trafficking, at the Roosevelt Inn in the city of Philadelphia.

06:37 - Ultimately,

06:38 - the sex trafficking ring was discovered and broken up.

06:42 - These four victims brought suit in the United States District Court

06:46 - for the Middle District of Pennsylvania, seeking compensation

06:50 - for the human trafficking that they had endured.

06:53 - The case was filed in the United States District Court, and Judge Chad Kenney

06:58 - ultimately found for the defendants

07:01 - on and granted a motion to dismiss.

07:04 - At that point, the matter was appealed to the Third Circuit.

07:06 - The Third Circuit, asked by way of petition for clarification on questions

07:12 - of state law and the matter made its way to the Pennsylvania Supreme Court.

07:17 - The issues posited to the Pennsylvania Supreme Court in this case are as follows.

07:22 - Number one, does Pennsylvania have an overriding public policy

07:28 - against sex trafficking, as evidenced by the sex

07:31 - by the state's anti-sex trafficking statute?

07:34 - And is that overriding policy so strong

07:38 - that an insurer's duty to defend and or indemnify is abrogated

07:43 - when and insured is alleged to have committed or enabled trafficking?

07:48 - If the answer to that question is yes.

07:50 - The next question for the court's consideration

07:53 - is whether the duty is abrogated only in cases

07:57 - of intentional conduct, as opposed to reckless conduct.

08:02 - This case is a significant matter involving the interpretation

08:05 - of insurance contracts, and has implications

08:09 - across the Commonwealth of Pennsylvania and in the in the United States at large.

08:15 - Samsung Fire and Marine Insurance Company versus

08:18 - the rights trust represents investments with John Nelson representing Applebee's.

08:22 - Mr. Williams on.

08:27 - We have agreed

08:28 - to address two questions certified to us from the United States.

08:33 - Court of Appeals for the Third Circuit.

08:36 - The first question is whether Pennsylvania recognizes

08:39 - and overriding public policy against sex trafficking,

08:43 - comparable to the one we identified in Minnesota.

08:46 - Fire and Casualty Company versus Greenfield

08:50 - that may abrogate an insurers duty

08:52 - to defend and indemnify and insured when the insured is alleged

08:58 - to have enabled or knowingly profited from sex trafficking.

09:02 - Assuming that such a public policy exists.

09:06 - The second question we have agreed to address is whether, in such situations

09:11 - and insurers duty is abrogated

09:14 - only when the insureds alleged conduct was intentional,

09:20 - or is a lesser mens rea sufficient?

09:24 - Please proceed.

09:26 - Good morning, Your Honor.

09:27 - May it please the court.

09:28 - John Ellison, from the Reed Smith firm, along with my partner, Luke Dabiq.

09:34 - On behalf of the our Settlement Trust and the other entities that have been

09:39 - rolled into the trust as the result of the underlying bankruptcy.

09:42 - I will refer to them collectively as either the policyholders

09:46 - or the hotel defendants.

09:49 - These two certified questions derive

09:51 - from a decision by federal district court judge, County

09:55 - that denied the claims

09:58 - for coverage that our clients had made under insurance policies related

10:03 - to four underlying lawsuits pending in the Philadelphia Court of Common Pleas,

10:07 - not on the basis that the allegations in the underlying complaints do not trigger

10:12 - coverage, but solely on the basis that Pennsylvania public policy prohibits

10:18 - the insurers from providing the coverage

10:21 - that they sold to the policyholders.

10:25 - That relates to the, the years under which

10:28 - the claims by the underlying plaintiffs have been made.

10:31 - Judge Kenney construed the negligence claims that are pending in

10:34 - those complaints against the policyholders as alleging solely criminal conduct,

10:40 - that violated the state's anti-trafficking law, and therefore held

10:45 - that there was no coverage available because of Pennsylvania's public policy.

10:49 - That is, reflected in that law.

10:52 - But I. Could I stop you there for just a moment?

10:55 - I've looked at the complaints, and and we're talking about

10:58 - negligence, causes of actions in each of the counts.

11:01 - Is that correct?

11:02 - That is absolutely correct.

11:03 - So if there's criminal activity,

11:07 - it is alleged to have been perpetrated by others.

11:11 - The the hotel's liability is entirely premised on negligence.

11:18 - Is that correct?

11:19 - That is that is the way the claims are pled.

11:21 - And, that conclusion, your honor, I agree with 100%

11:26 - is confirmed by the amicus brief that was, filed in this action

11:31 - by the plaintiffs and their counsel, when they, and I'll,

11:36 - I'll read.

11:37 - I wanted to read a quote to you from that brief, which is at page 13,

11:41 - where they said, maybe the district court believe that such conduct should expose

11:45 - the hotel defendants to criminal liability,

11:48 - but these are the initials of the plaintiffs.

11:49 - But M, B, C, A, B, and CR

11:53 - did not state factual allegations of criminal activity

11:56 - or seek compensation for any crime committed by the hotel defendants.

12:01 - They sued them for negligent failures and omissions

12:04 - with respect to preventing others from committing criminal activity.

12:09 - That's what I saw in the complaint, and there were some additional negligence

12:13 - counts, such as negligence, infliction of emotional distress.

12:17 - But all of the counts sounded in negligence.

12:20 - Exactly.

12:21 - And they all derive from allegations of failure to train the employees properly.

12:25 - Failure to supervise the activities of the people

12:28 - who rented rooms at what was a lawful hotel business.

12:32 - But that would be the defendant's conduct.

12:34 - That would not be some other person's conduct, the negligent supervision,

12:39 - negligent training that would be conduct of the defendant,

12:43 - albeit negligence, but of a negligent variety.

12:47 - There was no claims against

12:49 - any of the hotel defendants for any intentional conduct whatsoever,

12:52 - so any underlying criminal conduct is alleged to

12:58 - that is alleged to have occurred, occurred by the people

13:02 - who were, the trafficking part, the traffickers

13:05 - and are not being blamed at this point based on the allegations on the hotel.

13:12 - Correct. Okay.

13:13 - And I think, Your Honor, that's where the intersection

13:15 - of the green field and the more cases meet.

13:19 - And in Greenfield, we had a very clear

13:23 - situation where the perpetrator of the criminal acts,

13:27 - the person who was selling the heroin, who was a drug dealer,

13:30 - was asking to obtain coverage for claims being made against him

13:34 - related to his drug dealing activities, purely intentional conduct.

13:39 - Conduct where the, where the,

13:41 - the the drug dealer had already been convicted of a crime and admitted to,

13:46 - essentially killing the person whose a state was suing him.

13:51 - And I'm sorry, which Greenfield bring the Greenfield case.

13:55 - But even more so the the victim

13:58 - in that case was in Paducah, right.

14:01 - Which was the basis for justice Saylor's Joinder.

14:05 - Exactly. Let me let me ask you something.

14:08 - And I understand the underlying complaint as you do,

14:15 - but that does not appear to be what Judge Carney found.

14:19 - And, and and so,

14:23 - I, I struggle with the certified question that we have for that reason.

14:27 - I mean, all of us are used to seeing these cases

14:31 - where, we have before us the complaint

14:37 - we have before us, the,

14:40 - ultimate question, the first question, which is,

14:44 - is there any way in which

14:47 - the policyholder can

14:51 - recover?

14:51 - I get it, we don't have this here.

14:54 - We have a question that says

14:58 - if we find X, then these out, the coverage.

15:04 - How do we get to what you're talking about?

15:07 - Well, I wanted I wanted to read one sentence to you from Judge.

15:09 - County's opinion, which was at page 15 of the opinion.

15:13 - He concluded the court, strange to imagine a clearer case

15:16 - than the one presented here,

15:18 - in which the facts alleged indicate that the policyholders engaged

15:22 - in criminal conduct in violation of the Pennsylvania Human Trafficking Law.

15:26 - That conclusion, Your Honor,

15:28 - violates almost every aspect of Pennsylvania's

15:32 - but surance coverage and reach that you understand the problem we have.

15:36 - It gets back to what I just said.

15:37 - This is this is a sanitized version

15:41 - of a coverage case that we would never see.

15:45 - I mean, you're you're arguing error correction.

15:49 - We've not been asked to really look at that or have we?

15:53 - Well, or are you arguing error correction in the premise?

15:58 - I mean, we can still reach the issues, can't we?

16:00 - I think you can.

16:02 - I think in, in the in the cases

16:03 - that have been accepted for certification from the Third Circuit,

16:07 - the court has said previously that it is not only entitled

16:11 - to answer the certified questions, but subsidiary questions that are subsumed

16:15 - within those questions that need to be addressed, to answer the questions

16:19 - that the Third Circuit has asked.

16:21 - And given that we accepted the petition for review, I guess the other alternative

16:25 - would have been for us to deny the petition for review,

16:28 - which we're loath to do.

16:30 - You know, we have a sense of comity with the Federal Court.

16:35 - If they ask us to interpret something under Pennsylvania law,

16:39 - we almost always say, yes, accept it for certification.

16:43 - So since we didn't turn it down and we did accept it,

16:48 - maybe we should be glad that it's with us.

16:50 - And I think we know what to do with it.

16:53 - Well, and I think, Your Honor, Justice Donohue, to also address your question.

16:57 - The Third Circuit itself has already taken issue with what.

16:59 - Judge Kennedy said and found in footnote five.

17:03 - On page seven of their decision,

17:05 - they said, we read the underlying complaints in this case,

17:09 - the the allegations have proven at trial would establish only recklessness.

17:14 - But under Pennsylvania law, injury caused by negligent, careless and reckless

17:18 - action does not come within the exclusion for expected or intended injuries.

17:23 - So the Third Circuit itself has already rejected, in our view,

17:27 - the conclusions the judge County reached in that sentence.

17:30 - I read to you from page 15 of the opinion.

17:32 - I didn't I didn't read that that way, to be honest with you.

17:35 - I read it as their, explanation

17:40 - for why the district court judge didn't actually talk about the policy,

17:45 - which is the first place most people would start,

17:48 - and they're saying the policy would cover this.

17:52 - That's what they are saying.

17:53 - They're saying the policy would cover this because,

17:57 - of the recklessness that is at most alleged in the complaint.

18:02 - I think that's exactly right. Most.

18:04 - But could you clarify?

18:05 - I don't recall reading allegations of recklessness.

18:11 - And maybe I just know.

18:13 - I recall

18:14 - negligence, but are there recklessness?

18:17 - Allegation? I don't think there are.

18:19 - Your honor,

18:20 - I think that was perhaps an inference that that the panel, the Third

18:24 - circuit panel, reached from the correct is it an inference to

18:30 - perhaps raise this to a criminal activity level?

18:33 - Because I don't see anything like that in the complaint.

18:36 - I don't think it's in the complaint.

18:38 - I think it was their concern that because Judge Carney had invoked

18:43 - the public policy issue here, the only way that becomes an issue

18:47 - under the trafficking statute, if we get to a level of recklessness,

18:52 - because that that is that's the mens rea

18:54 - that's required under the statute for an actor to be guilty of a crime.

18:58 - But even if even if recklessness have been pled, these cases are defended

19:03 - all the time under resolutions of rights commonwealths. Why?

19:07 - Why should this case be any different?

19:09 - It should not.

19:10 - And in fact, this this originally started with the insurance companies

19:14 - accepting a defense under a reservation of rights.

19:16 - And that's how it was proceeding until the bankruptcy stopped everything.

19:20 - And and then we were in limbo.

19:22 - That isn't it also correct that,

19:25 - maybe memory

19:26 - fails me here, but aren't these cases defended under reservations of rights,

19:30 - even when there are alternative pleadings of intentional conduct?

19:34 - Yes. I mean, as long as there is a claim or a or some facts

19:39 - that would trigger the coverage, potentially at the end of the

19:41 - at the end of the matter, then the defense should be provided.

19:45 - But we don't even have to get there, because if there were intentional

19:50 - allegations of intentional conduct that could be viewed as criminal conduct,

19:54 - then perhaps it raises this, question

19:58 - of our overriding public policy against sex trafficking.

20:01 - But we don't really even get there because

20:03 - we don't have those kinds of allegations.

20:05 - I agree with that, Your Honor. I agree.

20:07 - If I if I could ask, I, I'm not sure what this opinion

20:10 - is going to look like that we would issue in this case,

20:14 - the questions that go into Justice.

20:17 - Donahue's point, the questions we have been asked are sterile.

20:20 - We're being asked the question of Pennsylvania law.

20:22 - That's the only reason they came back to us.

20:24 - And they can decide whether Judge Kennedy's decision was correct or not.

20:27 - Correct.

20:28 - For my purposes, I'm not sure I care what Judge Carney did.

20:31 - I'm being asked to ask answer questions of Pennsylvania law.

20:35 - So I'm going to ask you the question,

20:37 - does Pennsylvania have an overriding public policy against sex trafficking?

20:42 - It has a public policy against sex trafficking.

20:45 - Okay. So we agree with that.

20:46 - We so the first part

20:47 - of the first question, the answer is yes, I think I think that's undeniable.

20:51 - Okay.

20:52 - So then the question becomes can that

20:56 - overriding public policy defeat and then under under

21:00 - certain circumstances, could it defeat a duty to defend

21:04 - and indemnify under our public policy jurisprudence?

21:08 - Or in the alternative, do we even reach that question?

21:11 - Because it's not can it under circum certain circumstances?

21:15 - Isn't the question, does it under this? No, no.

21:17 - That chief, respectfully that's not I'm not looking at the question

21:20 - such that assurance

21:20 - duty defender indemnify is abrogated when insure it is alleged to have enabled.

21:24 - I'm kind of changing the questions. I'm trying to go incrementally.

21:27 - Yes, to see what you agree with.

21:28 - Yeah, but do you agree that under certain circumstances and we'll get to those,

21:35 - the overriding public policy against sex

21:37 - trafficking could abrogate a duty to defend and indemnify?

21:40 - I think the answer could be yes.

21:42 - Okay. So we agree that that could be us. Yes.

21:45 - So what we're being asked

21:49 - then, I guess, is to tell the Third Circuit

21:52 - under what circumstances would that overriding

21:57 - public policy,

22:00 - prevent or abrogate the duty to defend?

22:03 - And then they would take what we tell them in terms of what circumstances it would,

22:07 - and they would apply them to the circumstance of this case.

22:10 - I think that's correct. Okay.

22:12 - I would invite the court to go a little further if you would like.

22:15 - So, I also understand what you're saying. Okay.

22:17 - But I think to answer your question,

22:21 - this is where I think, the greenfield

22:24 - and more cases really provide the answer.

22:27 - And the answer from the policyholders perspective

22:30 - is if you have shortly criminal conduct

22:35 - that is intentional

22:36 - and has been either, pled to be criminal

22:40 - or has been a judge for to be liable criminally,

22:44 - for which that actor is seeking insurance coverage

22:49 - under a policy where they're being sued for the criminal acts they committed.

22:54 - That's against Pennsylvania public policy.

22:57 - I think the case that best reflects the result here

23:00 - is, unfortunately, a superior Court case, but

23:03 - it's a decision in the general accident insurance company case to be Allen.

23:07 - That case was a case involving allegations

23:09 - of sexual molestation of minors

23:13 - relating to lawsuits that were filed against a husband and a wife.

23:17 - The husband was the bad actor.

23:18 - He was the person who molested the children.

23:21 - Wife was being sued because she didn't prevent

23:26 - the molestation of the children, and it was negligent in not knowing

23:30 - what her husband was doing and, and, horrifyingly injuring the kids.

23:36 - The Superior Court held,

23:39 - I think, correctly,

23:41 - that the husband was not entitled to any insurance

23:44 - coverage for any of his conduct because it was criminal.

23:47 - He was found guilty of it. It was intentional.

23:49 - And he is the one who who was the actor that caused the injury.

23:52 - So why should he be entitled to insurance for that?

23:55 - The wife, on the other hand, was found to be entitled to coverage

23:59 - because she was negligent in not preventing the actions,

24:02 - but she had not engaged in any criminal conduct of her own

24:06 - and was never charged with any crime at, nor were any of the accusations

24:10 - in the underlying lawsuits against her involving criminal conduct.

24:15 - And I think that's the difference here, counsel, is there a safety valve

24:19 - to protect a an insurance company from prosecutorial discretion?

24:24 - Let's say the prosecutors decide there's a there's there's

24:28 - an enterprise, there's, individual involved in criminal activity,

24:32 - but the prosecutors choose to go after the individuals and not the enterprise.

24:36 - So no charges, no guilty plea, not Greenfield.

24:38 - Where where he pled guilty to multiple criminal charges.

24:41 - And the enterprise seeks insurance coverage.

24:46 - Is there some kind of, side trial

24:49 - within a trial or some kind of a procedure where the insurer.

24:52 - It could, do the duty to defend

24:58 - under a reservation of rights, as Justice White said.

25:00 - But somehow, some way that prove the criminal liability

25:03 - and abrogate indemnification, I think that is possible.

25:07 - And I think that's the distinction

25:08 - between the duty to defend and duty to indemnify.

25:10 - I think in order for an insurance company to escape the indemnification obligation,

25:15 - they would have to prove the criminal responsibility of the actor,

25:19 - even if they weren't prosecuted separately outside, probably

25:23 - what probably would prove beyond a reasonable doubt under the claim?

25:25 - I would think so.

25:26 - I would say that they're charging a criminal offense.

25:28 - I think they would have to meet that burden.

25:30 - So it doesn't.

25:31 - Doesn't the insurance carrier always have a safety valve

25:36 - and exclusion in the policy for criminal acts?

25:40 - I was I was going to get to that. I mean,

25:43 - you know,

25:43 - we're dancing around the obvious issue here.

25:46 - I mean, we're being asked to add the coverage where the insurance carrier

25:51 - did not have an exclusion for criminal acts,

25:54 - and they could have written that any way they wanted to.

25:58 - If you go back to this court's decision in the Eisenman v Hornberger case,

26:02 - which is which was, I think, one of the original cases on this

26:05 - type of topic about whether public policy can preclude insurance coverage.

26:09 - The court made a point in that case

26:12 - of saying that there was no violation of law exclusion in the policy.

26:16 - So essentially, the insurance company is asking us

26:18 - to rewrite the policy and grant them an exclusion

26:21 - that they didn't put in in the first place,

26:22 - which is exactly what Justice Cappie and Justice Nigro said in Greenfield.

26:27 - Exactly.

26:28 - And Frank.

26:29 - Exactly, but that the holding in the Eisenman case

26:32 - was was what Justice Guppy had repeated in,

26:36 - in the in the dissent to Greenfield.

26:42 - So, Your Honor,

26:42 - I think, I think I've made my points.

26:47 - We think that the limitation that should exist

26:50 - is that if there is intentional criminal conduct

26:55 - directly committed by the policyholder

26:58 - for which they are alleged to have or alleged to, for which they are seeking

27:02 - coverage related to the criminal act they committed,

27:05 - Pennsylvania public policy would preclude coverage for a case like that.

27:09 - Why, counsel?

27:09 - Why are you conceding an allegation?

27:11 - Why are you conceding allegation?

27:12 - I don't think I should have done that.

27:15 - Like it's a difference between

27:16 - if there is a proven crime, if there's proven criminal conduct,

27:20 - which is what existed in Greenfield, which is greenfield.

27:23 - But but mere I mean, looking at the policy allegations,

27:27 - you think that we can that not we of course, the Third Circuit

27:30 - should evaluate the allegations or should we say

27:33 - under Pennsylvania law, mere allegations are not enough.

27:37 - If there are

27:39 - if there are claims of negligence in the underlying complaint that I think

27:42 - a defense needs to be provided.

27:43 - If someone know if there are claims of criminal conduct, any like

27:47 - no, no, no, no no of of

27:51 - negligence, there was you finish your sentence.

27:53 - If there were claims of criminal conduct that alleged solely intentional action

27:57 - by the policyholder that abrogated the duty, I think

28:00 - I think an insurance company could challenge a defense in that case

28:04 - if there's no negligence count

28:05 - pled, not the duty to coverage, but the duty to defend that.

28:09 - I mean, you in even the plurality in Greenfield,

28:14 - I hasten to say,

28:17 - however, in cases that do not involve a criminal act

28:20 - by an insurer with respect to a schedule one controlled substance,

28:25 - our decision on Eisenman reading, the reader, reiterating the test,

28:29 - etc., etc., we changed its validity,

28:33 - meaning, Justice Newman in her plurality

28:37 - which got a full joinder only from Justice Kagan.

28:41 - Right.

28:41 - Was it pains to limit this to hair, which is an interest.

28:46 - I'm going to ask your of your adversary about that, but.

28:49 - I'm interested in your apparent concession that that you would be willing

28:56 - to extend greenfield past its limits.

29:01 - Well, before you answer that, are you talking,

29:03 - then, about a duty to defend or a duty of coverage?

29:07 - You about both?

29:08 - I know, but I'm asking in answering just a question, I'd like you to be clearer.

29:14 - Are you talking about the duty to defend or the duty of coverage

29:19 - on the on the duty to defend?

29:20 - I think if there is any potential for coverage, the insurance company

29:24 - has an obligation to indemnify and greenfield.

29:27 - I don't think, could have been decided any more narrowly than it was.

29:30 - I mean, the court, even in the plurality, was at pains to make it very narrow.

29:34 - And that is based on allegation. Exactly.

29:37 - Thank you.

29:38 - So I think to go back to the question

29:41 - from Justice Roberts and, I think unless there is proof

29:45 - of criminal wrongdoing, that is the exclusive basis for a claim.

29:50 - An insurance company should be defending the case, subject to a reservation

29:54 - of rights, that it might be able to prove that a crime was committed.

29:57 - But even to your point, though, let's say they let's say they

30:01 - let's say they

30:01 - allege negligence, but they also I'm saying vague.

30:05 - I'm not talking about this complaint, basically talking about hypotheticals.

30:09 - The allegations and the allegations in the complaint

30:12 - clearly amount to criminal conduct uncharged, unpledged.

30:18 - I'm convicted.

30:19 - But allegations of criminal conduct.

30:21 - You're saying if the complaint merely alleges

30:26 - criminal conduct, that the insurance company

30:31 - can do what, not defend or bring a deck judgment action and say,

30:36 - we want to prove the criminal conduct and not defend,

30:39 - I think that's what they should do and defend while they're pursuing the category

30:43 - judgment, action.

30:44 - And that's basically, I think, the holding that comes out of more because that

30:50 - the first act is clearly a deliberate murder

30:52 - when he goes in to kill the ex-wife, and then when the boyfriend shows up

30:56 - and he shoots him, too, there's a potential

30:58 - that that's accidental, but that's also probably a crime,

31:02 - I think, to shoot somebody, with a gun who's not not attacking you.

31:09 - And in that case,

31:11 - Your Honor, I found that a defense was owed because there was a potential

31:14 - that it was a negligent, action in shooting the boyfriend.

31:19 - So then go back to justice. Who asks question.

31:21 - Why are you willing to extend Greenfield

31:26 - beyond the schedule one controlled substance?

31:31 - What?

31:31 - Why are you willing to do that?

31:35 - I'm not I'm not willing to do that.

31:37 - I'm all I'm saying is,

31:40 - an insurance company might be able to argue if they could show

31:44 - some purely criminal activity that

31:48 - that was intentional harm.

31:50 - That's not. But that's not what Greenfield was about.

31:53 - Greenfield was about the most horrific,

31:56 - terrible crime that the legislature had ever envisioned.

32:00 - And it was a scourge on society.

32:02 - And because of that, two justices

32:06 - said this is an overriding public policy.

32:11 - Justice Cappie, in his dissent, said, this is a slippery slope

32:16 - when the next case that we're going to have, where there is an argument

32:20 - that there is overriding public policy and you are conceding

32:24 - that Greenfield allows for that eventuality.

32:29 - And I'm asking why.

32:33 - I'm I'm

32:34 - just I'm saying an insurance company would it could have an argument

32:38 - that that would fit within what the holding of Greenfield would see.

32:41 - That's what the Third Circuit is asking us.

32:44 - Do they have that argument

32:47 - on these on these facts? No.

32:49 - And the answer and the answer is either yes or no.

32:53 - Well, the under green fence and under Greenfield,

32:57 - where we can extend greenfield to encompass other quote unquote,

33:02 - egregious public policy statements, what about tied DUI?

33:07 - That involves that involves in the death huge public policy regarding

33:13 - that issue, is that the next thing that we're going to look at,

33:17 - I think, is Greenfield stand on its facts, period.

33:21 - Considering it really wasn't a majority opinion, I was right.

33:25 - It's also not a majority opinion.

33:27 - So I'm not even sure it's controlling law.

33:29 - And I think more makes clear

33:31 - how limited and narrow Greenfield was and needs to stay.

33:37 - And I think that's the answer.

33:38 - Isn't your answer that that's an intentional exclusion, correct?

33:42 - Yes. That's what it is.

33:43 - That the cleaner. Yes.

33:45 - That the cleaner. It's the expected or intent. Right.

33:47 - It would fall within the expected or intended language that excludes coverage.

33:50 - You don't need to go down this rabbit hole

33:51 - of what's an overriding public policy here.

33:53 - It's just an underwriting public. Right.

33:55 - I think that's right.

33:56 - On the other hand, there may not be there may be, I don't know,

34:00 - but there may not be much dispute that there is an overriding public policy

34:05 - in a general sense, against sex trafficking in Pennsylvania.

34:09 - Right? I think that's right.

34:11 - But there is also a public a strong public policy in a whole

34:15 - host of decisions from this court about the insurance companies obligation

34:18 - to provide a defense under a policy until it is proven beyond a doubt

34:22 - that there's no aspect of the under.

34:24 - That's the law.

34:25 - I mean, that's a law that we've recognized.

34:28 - And I think it it but it sets forth a policy

34:31 - of how insurance companies are supposed to act in the state

34:34 - when claims are made against their policyholders.

34:37 - Okay. Anybody have any other questions?

34:40 - Do you want to sum up or have you?

34:43 - But I think I have summed up, but I will just say quickly,

34:46 - we think both of the answers to both of the question

34:48 - from the Third Circuit should be in the negative, for the reasons I've stated.

34:51 - And thank you very much for the opportunity to thank you, Mr.

34:54 - Ellis, and let's hear from Mr.

34:56 - Sulzer.

35:03 - Morning.

35:04 - May it please the court.

35:04 - William Sulzer of Swartz Campbell,

35:08 - on behalf of the insurer, appellees, I'm joined

35:12 - by Edward Koch of the White and Williams firm.

35:18 - I'd like to first address,

35:19 - this court's role in the acceptance

35:26 - of the certification of the issues by the Third Circuit.

35:30 - You think we're regretting it?

35:32 - Well, this court,

35:34 - stands in the role of answering the discrete

35:37 - legal questions that have been posed by the third Circuit.

35:43 - It did not have original jurisdiction.

35:47 - That jurisdiction lies in the federal courts.

35:50 - So we resolve the questions.

35:52 - It gets sent back to the federal courts, and they resolve the case.

35:57 - The trust will have its day

36:00 - in court, in the court that has jurisdiction.

36:04 - Well, they'll have to answer in.

36:07 - It'll have its day in court after the Third Circuit

36:11 - has had the benefit of our articulation of the law of Pennsylvania.

36:15 - Absolutely.

36:17 - But what the trust is asking this court to do

36:20 - is to step beyond

36:24 - answering the certified questions, to act

36:27 - as if it were the final appellate court to resolve such questions

36:32 - as did the district court get it wrong in

36:37 - how it construed the complaint?

36:40 - So, for example, the issue of,

36:44 - the averman in the complaints

36:46 - consistent with negligent conduct,

36:50 - do the facts of those complaints control

36:53 - in the analysis of the duty to defend inquiry?

36:57 - It's not an allegation, negligence.

37:00 - Well, there are two things.

37:01 - First, the facts control, not how it has been pled.

37:07 - We also know that in Greenfield,

37:11 - go back to Haven,

37:13 - those lawsuits were played exclusively in terms of negligence.

37:18 - One will not find any intentional tort claims pled

37:22 - in those cases, in fact.

37:24 - So counsel in facts control as a factual matter where any owner, operator

37:29 - or employee of any of the hotel defendants criminally indicted or investigated,

37:34 - they were not got to.

37:35 - That's a fact question.

37:36 - Right?

37:37 - Well, they were not criminally indicted.

37:39 - And most likely I don't know whether they were investigated or not, but in Haven.

37:45 - So is there any direct, intentional conduct

37:47 - by any of the hotel operators or any of the hotel employees? Yes.

37:50 - I mean, those facts that are pled out make out those, make out the fact that

37:56 - the commercial sex

37:59 - trafficking was so rampant and obvious

38:03 - that the defendant, who is charged

38:07 - in the complaints with knowledge of what is transpiring, should have known.

38:11 - I mean, that's a negligence standard, right?

38:14 - Well,

38:15 - it was pled in terms of negligence,

38:18 - but we have to look at the predicate facts.

38:21 - Well, you I mean, you seem to be dancing around something that

38:25 - that is, is glaring and obvious.

38:29 - There's no intentional tort pled in the case.

38:32 - Are you trying to tell us that that's not the case?

38:35 - No. I'm not.

38:36 - There is no intentional tort.

38:37 - What?

38:38 - I'm saying you issued a reservation rights letter,

38:41 - and then, what?

38:43 - You you thought better of it,

38:45 - and you thought you'd take an aggressive position and did not.

38:49 - I says no, no, no, we've never no,

38:53 - we've defended the insured.

38:57 - At all points until such time that a court

39:00 - ruled that we were relieved of that obligation

39:04 - because the facts, if accepted, is true, which is the standard of the duty

39:08 - to defend the inquiry made out

39:11 - claims that in the district court's opinion,

39:15 - would violate Pennsylvania law.

39:18 - Pennsylvania public policy.

39:20 - Because the duty to indemnify

39:24 - carries a conditional I'm sorry.

39:27 - The duty to defend carries a conditional obligation to indemnify,

39:31 - and if you do not have an obligation to indemnify based on the facts pled,

39:36 - you do not have a correspondingly duty to defend

39:39 - the insureds defended until such time that we were relieved.

39:42 - Is that duty to defend jurisprudence apply in this public policy exception,

39:46 - assuming we extend it in greenfield, because.

39:50 - When you're talking about criminal conduct,

39:53 - there's no one a mere allegation.

39:56 - And that's the part of the Third Circuit's first question is, is abrogated

40:01 - when an insured is alleged to have enabled or profited from such trafficking,

40:06 - not proven, not established beyond a reasonable doubt,

40:09 - not even established by a preponderance of evidence, not even,

40:12 - you know, not even not even put in front of a jury, a mere allegation.

40:17 - How can that be true

40:18 - when you're talking about not a duty to defend in terms of was my

40:22 - what did this happen during a claims made period on a claims

40:25 - made policy and all this sort way, date and time and things like that.

40:28 - This is more substantive than the had driven by jurisprudence from this court.

40:32 - Why is a mere allegation enough

40:35 - under this broad policy, public policy exception?

40:38 - Well, the facts plan have always driven the coverage analysis.

40:41 - Not on that, not on public policy, except in not overriding public policy.

40:45 - I didn't find one in Greenfield.

40:48 - He pled guilty.

40:49 - He pled guilty to multiple criminal offenses for which he saw coverage in.

40:53 - Well, if we go back to Haven,

40:55 - there was some discussion of that very fact where, in a footnote,

40:59 - the court said that the fact of the guilty plea was immaterial to the analysis.

41:05 - It was extrinsic to the complaint, and whether or not

41:08 - they had pled guilty would not dictate whether there was a defense obligation.

41:12 - Who would do what.

41:13 - I feel innocent until proven guilty.

41:15 - What happens to you know what? Why not?

41:18 - Why not put your claim in front of the in your debt judgment action?

41:21 - Prove that they prove that they committed criminal conduct

41:25 - and then you'd be out.

41:26 - You won't get out in Greenfield.

41:27 - Assuming we again the analysis if I may, in Greenfield as well.

41:33 - The facts of the of the of the plea

41:38 - in that case, was not played out in the complaint.

41:42 - In fact, that was information that came in extrinsic.

41:46 - It was not central to the court's holding.

41:48 - And I think if we look at that, that wasn't central

41:51 - to the court's role in that guilty plea of Mr.

41:55 - Greenfield

41:57 - to the heroin dealing you're telling us, is that wasn't central to the holding.

42:01 - It was the fact that in the complaint,

42:05 - the insurer discharged it

42:07 - with having delivered heroin, to the decedent,

42:11 - which what the policy was against the heroin distribution.

42:16 - Right? Yes.

42:17 - And here you want to say there's

42:19 - an overriding public policy against sex trafficking.

42:23 - Although the hotel owners were not accused,

42:26 - much less pleading guilty to sex trafficking, am I correct?

42:30 - Yes. We are saying that the overwhelming public policy

42:35 - is that when there is obvious

42:37 - commercial sex trafficking that is taking place, and it is alleged

42:41 - that the defendant knew and and was financially benefited from this.

42:47 - I mean, the complaints say that the traffickers paid cash to the hotels.

42:52 - That's facilitates the trafficking activity.

42:56 - We have an overriding public policy against murder.

43:00 - Yes. Okay.

43:01 - Well, I know you were counsel for amicus in bomb hammers. Yes.

43:05 - I'm here.

43:06 - Yes. I'm here.

43:06 - Members went out and murdered racial and ethnic minorities.

43:11 - His parents claimed coverage under their policy, and they got it.

43:16 - Although you argued that they shouldn't get the coverage.

43:18 - We had a we have an overriding public policy against murder.

43:23 - Why is that policy

43:25 - less overriding than a policy against sex trafficking?

43:29 - Well, first policy there was a Steelers game on Sunday.

43:33 - There were all kinds of tailgaters.

43:35 - I'm sure some of them got drunk.

43:37 - What if one of them got off in a fight and hurt

43:40 - somebody badly and the Steelers got sued?

43:43 - Would you say, well,

43:45 - we have an overriding public policy against drinking in the parking lots.

43:49 - You don't get coverage.

43:50 - I mean, where does this end?

43:51 - Is it everything in our crimes code, an expression

43:55 - by the General Assembly in this building that Pennsylvania has an overriding

43:59 - public policy against that conduct multiple good questions.

44:04 - First, boom hammers.

44:07 - The homeowners

44:09 - had not committed any criminal act.

44:11 - There are no facts that were pled in bound hammers that charged

44:16 - the parents of their son,

44:19 - who had committed the shooting spree.

44:23 - With any with any conduct

44:25 - that would have violated a criminal statute here by distinction.

44:30 - Well, they were negligent allegations in the bomb hammer.

44:33 - Yes, there were negligent allegations.

44:34 - So they should

44:35 - they should have told the authorities that their son was supervised or unstable.

44:40 - They were aware that compared to this case, that's what you're going to say.

44:44 - And so in this case, in contrast, what in this case, in contrast,

44:49 - we have the fact that the traffickers paid the hotel cash for it.

44:54 - They paid the hotel manager,

44:57 - they may have paid the hotel desk clerk that you should the corporate defendants.

45:02 - Correct? Correct.

45:04 - They financially benefited right, from acts

45:07 - that facilitated the activity of that's trafficking.

45:10 - That that's the allegations.

45:12 - That is the allegations. Right.

45:13 - No facts were correct.

45:15 - But and but this is.

45:18 - I mean

45:19 - they couldn't keep their doors open if they're not getting paid

45:22 - for the hotel rooms.

45:24 - If I'm operating a parking lot, and I take money for the parking lot

45:29 - and then some teenagers have a, a party in my parking lot,

45:32 - and somebody gets drunk and gets hurt.

45:34 - Have I profited from these assaults?

45:38 - But there is no statute which speaks to the parking lot

45:42 - having any culpability for profiting by

45:45 - by having collected money,

45:49 - from people that park their cars and then,

45:52 - there is a, there is a, there's criminal activity on the premises.

45:56 - This is this case is distinct from a negligent security case

46:00 - in which a premises owner is charged with having failed

46:05 - to prevent a foreseeable criminal act on its premises.

46:09 - This is not the case.

46:10 - I thought the allegations in this complaint were like precisely that.

46:14 - Like they failed to train, they failed to supervise.

46:20 - I mean, that's exactly what the the allegations

46:23 - as to the corporate defendants were, I mean, take out, take out the lower

46:29 - level, individuals who were employees of the corporate defendant.

46:35 - There's a step between those people who, as alleged, did many things

46:40 - that should have been a clue to them that there was sex trafficking taking place.

46:46 - But you're one step removed from that.

46:49 - I mean, they're the allegation

46:51 - against a corporate defendant has to be that they should have known.

46:57 - I mean, well, the allegations are that they knew

47:00 - and they knew by and through their agents, servants and employees.

47:04 - So, but we're lawyers

47:07 - would have refrained

47:09 - from pleading intentional torts if they had a shred of evidence

47:13 - of intentional talks to go the measure of damages that they could seek.

47:17 - I mean, I can't speak to.

47:19 - Aren't you improving on their complaint?

47:21 - I can't speak to what, their stratagem might be with regard to,

47:25 - the drafting of the complaint.

47:29 - But I think we're all coming back to the same question here.

47:32 - Right?

47:32 - Which is and I appreciate that, you know,

47:36 - certified questions are probably not

47:40 - the common, thing that happens.

47:44 - And, but

47:47 - it ultimately is for the Third Circuit to decide whether the district court right,

47:54 - did not give sufficient

47:56 - weight to what

47:58 - you are referring to as mixed allegations, right of negligence

48:03 - or, or reckless or knowing conduct.

48:07 - Right.

48:08 - Because next, we're not referring to them as mixed allegations.

48:12 - I thought there were only allegations and thank goodness.

48:15 - Well, I you know, you know, I think the facts pled that,

48:20 - the defendants had knowledge,

48:24 - of the indicia of sex trafficking

48:28 - that was prevalent in some cases going on for years.

48:31 - And that, with that knowledge,

48:37 - they did not report or stop the tracks

48:41 - that the trafficking activity meets, that reckless disregard standard.

48:46 - Remember, the district court

48:48 - had concluded that the hotel harbored these persons, right?

48:51 - That was all over Pennsylvania, right?

48:53 - Today in courtrooms around Pennsylvania.

48:56 - Are you denying that carriers are defending cases like

49:01 - this under reservations of rights, where there have been pleadings of recklessness?

49:05 - Are you telling me that that because if that's the case,

49:08 - things have really changed a lot since I was in those courtrooms?

49:13 - My recollection is

49:14 - that defense lawyers are defending under reservations of rights,

49:18 - all kinds of allegations which go beyond negligence,

49:21 - which is all you have here, is that have things changed?

49:25 - You know, things have not changed, right.

49:27 - Carriers do defend cases where there are mixed

49:33 - claims of excluded

49:36 - and not excluded conduct.

49:39 - The carriers in this case defended it

49:41 - until such time that we had a ruling that there was no coverage.

49:45 - The public policy issue that is at stake here, right.

49:48 - Is something that essentially is an antecedent,

49:53 - meaning that if you even wanted

49:56 - to provide coverage for the issue

50:00 - insureds liability based on these allegations,

50:04 - you would not be able to do so because it offends

50:07 - public policy, right?

50:09 - That we look at the to the statute, right,

50:12 - to glean what is the public policy

50:16 - and the point here is, is that if hotels have the ability.

50:22 - To essentially pass the buck

50:24 - to insurance companies for their liability

50:28 - for condoning sex trafficking

50:31 - on the premises.

50:34 - This undermines

50:35 - the central purpose of the statute.

50:38 - Well, speaking of passing the buck, they pass the premium buck to you.

50:42 - You were happy to take the premium.

50:44 - Why didn't you just impose the exclusion that existed in the umbrella? Yes.

50:50 - Public existing exclusion available.

50:53 - You you take it off the shelf.

50:55 - You put it in your policy.

50:56 - If they say, well, you know what?

50:58 - We're going to go to a different carrier because we're not living

51:01 - with that exclusion. You didn't give them that option.

51:03 - You took the premium, you didn't put the exclusion in.

51:07 - And now you bring a Dec actually say, we want to get the exclusion

51:11 - provided judicially that we didn't ask for a contract.

51:14 - Well, public policy would not allow you to write the coverage to begin with.

51:18 - So this whether there is an exclusion

51:20 - or not, is immaterial to the analysis in a public policy case.

51:24 - And that has been the case in any public policy decision.

51:27 - So for example, most of the insurance policies we see then have the exclusion

51:33 - have the exclusion for the Criminal Act.

51:35 - Exclusion

51:37 - just belted suspenders.

51:40 - But well, yeah.

51:42 - I mean, you could say it is belt and suspenders.

51:45 - But the the fact is, is that,

51:50 - even

51:53 - if you do not have a criminal acts exclusion,

51:57 - if it would violate public policy to provide

51:59 - coverage for the acts there you

52:03 - you do not have insurance irrespective of every public policy case.

52:07 - Right.

52:08 - That has been before the court involves

52:11 - a situation where there is not a criminal act exclusions.

52:14 - And in this.

52:14 - So I'd like, you know, if I may ask this.

52:17 - Quite so.

52:18 - So there's these allegations of let's, let's say it's mixed

52:21 - allegations, negligence, straight up negligence in some of the

52:24 - knowing, benefiting, the knowing or recklessness.

52:27 - Let's just assume again, I'm thinking in hypotheticals, not in this case.

52:32 - And we say

52:35 - Pennsylvania law

52:36 - is mere allegations of what could facts that could result in criminal charges

52:42 - and perhaps even a conviction, it would violate public policy

52:46 - to allow insurance companies to defend those cases.

52:49 - Okay, you're our case goes to trial,

52:52 - and the plaintiffs decide not to pursue their knowing allegations

52:57 - or recklessness allegations and purely pursue negligence.

53:02 - What happens with coverage at that point in time?

53:04 - Well, the the complaint controls, I mean, it's if you're saying

53:08 - if I were to file an amended complaint all of a sudden that the plaintiffs

53:12 - at some point in time said,

53:13 - we can't prove this knowing recklessness, then we can't prove it.

53:18 - We planned it, but we can't prove it.

53:19 - We're going straight on negligence.

53:21 - Here we go.

53:23 - What what happens with coverage?

53:25 - The duty defend is always been measured by what's alleged.

53:29 - Use not proven.

53:30 - So say that and I'm sure an amended complaint were filed now.

53:32 - So you say that.

53:33 - And I have never seen it applied in the way that you're asking it to apply

53:36 - the duty to defend is, you know, if when I say duty of a defend,

53:40 - you're talking about did the did the was the car insured by the policy?

53:44 - Was the driver insured by the policy.

53:46 - Did the claim arise as a claims made policy in our current policy.

53:49 - Did it was a properly given notice or things like that.

53:52 - Those you can glean from the complaint?

53:54 - The pretty much, you know, factually this is when it happened.

53:59 - This is you're asking us to take an allegation

54:02 - that they that it's not by a prosecutor.

54:05 - It's it's it's by a plaintiff pursuing a tort recovery.

54:09 - And you're asking us to extrapolate that into an actual criminal charge

54:13 - that would result in the conviction

54:16 - to deny you to to say you don't have to cover under some dominant

54:19 - public policy that's different than the duty defend rubric,

54:23 - where you're talking about where the four corners of the contract control.

54:27 - Well, I, I respectfully disagree.

54:30 - I mean, I would say, you know, that the facts drive it in in your situation.

54:36 - What you the scenario, if the proofs weren't made out at trial

54:40 - to rise to the knowing conduct, it would not

54:45 - have a bearing on the coverage determination

54:48 - if an amended complaint had been filed and changes the facts that are alleged.

54:51 - Well, that's a different issue, right?

54:52 - Because the amended complaint supersedes the prior complaint.

54:55 - But until such time, it's what's pled out in the facts that that drives it,

55:00 - as opposed to what ultimately turns out at trial to be have haven't been proven.

55:06 - Could you, clarify something for me?

55:09 - Are you arguing that there's no.

55:12 - I know you're arguing. There's no duty of coverage.

55:15 - There's no coverage.

55:16 - But are you also arguing that based on these

55:19 - complaints, there's no duty to defend?

55:21 - That's right.

55:22 - You're arguing both.

55:23 - That's correct. Me asking you. Wait, wait.

55:25 - Can I get the rest of that answer and tell me why you're arguing?

55:29 - Both based on the allegations of the.

55:32 - We've argued

55:33 - that based on the factual allegations, which is what the district court had

55:37 - concluded, and in fact, the Third Circuit, quite frankly, in its premise

55:41 - to the certification, likewise had concluded that those facts

55:46 - established knowing, and or reckless conduct and then that

55:51 - created the question posed to

55:52 - the to this court as to whether that sufficed.

55:57 - But yes, the answer is yes.

56:00 - Okay. Thank you.

56:01 - And that's a question

56:02 - the Third Circuit asked us to decide duty to defend or indemnify.

56:07 - Correct? Yes.

56:08 - I mean, I, I let me ask you something else about this.

56:11 - Yeah. I think justice had started a question.

56:13 - Yeah.

56:14 - I the question I was starting to ask, when they interrupted the chief, was,

56:20 - you know, maybe Judge Carey didn't have to worry about this.

56:23 - Could we, as the Supreme Court of Pennsylvania, have to worry about

56:27 - ambling down this road of identifying, quote, overriding public policies?

56:32 - You know, the the plurality,

56:35 - the narrow plurality in Greenfield has this heroin thing.

56:39 - Okay. You want it for sex trafficking?

56:41 - I'll be it. You've got no guilty plea here.

56:44 - We, as you know, we have a horrible sex trafficking problem.

56:48 - We have an even more common problem of,

56:52 - abuse of children, and abuse of elders.

56:57 - Okay, so, what's to say if you prevail that the next case,

57:02 - a, a,

57:07 - a facility,

57:09 - a big nursing home that had one rogue

57:12 - employee that they should have known was abusing elderly.

57:15 - Next thing you know, the carrier is going to be able to deny them

57:19 - the coverage that they've been paying millions of dollars for

57:23 - or the big, daycare facility.

57:26 - There's an allegation that they should have known

57:29 - there were somehow indicia that some rogue employee of theirs was abusing children.

57:34 - All of a sudden their millions of dollars of premium are out the window, too,

57:38 - because now this precedent will allow you to deny coverage there.

57:42 - Where's the end of this slippery slope?

57:44 - Well, I think that the court in Greenfield

57:47 - did the correct thing.

57:50 - It came and its analysis to the discrete issues before the court.

57:56 - We're not here before the court to say

57:58 - the greenfield is pressing and binding this court to find in our favor.

58:02 - Retail provides the framework, the guidelines, right

58:06 - to how to make a decision with regard to public policy.

58:10 - And each case has to be viewed on its merits in terms

58:15 - of looking at the statute, looking at what the public policy of the state is

58:19 - looking at, how a ruling that coverage would be afforded

58:22 - would affect that public policy.

58:24 - And so it's a case by case determination and requires

58:29 - analysis of whatever statute is at play in that particular case.

58:34 - And so I think, just as Danny referred to DUI.

58:38 - Right.

58:38 - And so, for example, in DUI, we would be looking at the purposes

58:42 - of the financial responsibility law, right?

58:44 - Which is to make certain that there is insurance for drivers.

58:49 - And we

58:49 - have to look at the motorist public in terms of what their intentions are,

58:53 - terms of their negligence, and for the victims of their torts.

58:59 - And that leads me to my next question.

59:03 - Greenfield.

59:04 - Justice Newman's opinion in numerous,

59:09 - places, Justice Saylor

59:11 - solely joined that opinion

59:14 - because the victim in that case was impairing to let go.

59:20 - I mean, one could argue,

59:23 - that the decision in that case would have been the same had

59:27 - there been no public policy recognition, because the victim's a state

59:33 - would not have been entitled to recover because she participated in the crime.

59:38 - So when we're looking at these issues of public policy,

59:42 - don't we indeed have to recognize that one of the purposes of insurance

59:47 - is to ensure that victims, are compensated?

59:52 - The purpose of the tort law is to provide

59:55 - compatibility right to injured parties.

59:58 - 707 But the purpose of insurance is risk spreading.

01:00 - 03.309 So what we're really asking here

01:00 - 06.336 from the standpoint of the public policy standpoint,

01:00 - 10.940 which is is it appropriate to say that the liability of the hotel

01:00 - 15.120 can be borne ultimately by the insurers and their policyholders for the conduct

01:00 - 16.522 that's alleged?

01:00 - 18.924 They're always unfortunately, they're they're always

01:00 - 22.328 victims in cases involving insurance.

01:00 - 24.096 I mean, we wouldn't be here

01:00 - 27.232 whether it was in Greenfield or in Haverhill or in any case,

01:00 - 30.035 unless there was an injured, injured party that point.

01:00 - 32.605 Sorry to cut you off. I just wanted to jump in here.

01:00 - 36.909 I'm always concerned when we get a question that comes to us

01:00 - 41.814 strictly on the aspect of public policy, particularly in a circumstance like this,

01:00 - 45.642 because it's landed on our plate purely on a public policy.

01:00 - 47.988 Forum.

01:00 - 50.889 So tell me why.

01:00 - 58.530 Why would it be harmful to you for us to say no for the reasons

01:00 - 02.325 expressed by my colleagues, Justice Donohue and Justice Lact,

01:01 - 06.462 we're not going to extend Greenfield on, on a,

01:01 - 11.067 on a theory of public policy to your case,

01:01 - 15.738 you still have all your tools based upon

01:01 - 20.176 insurance contract to argue that you are not

01:01 - 24.423 obligated to defend or indemnify this claim.

01:01 - 26.291 Aren't you?

01:01 - 27.760 Well,

01:01 - 29.995 yes, in in the abstract. That's correct.

01:01 - 35.367 In fact, the district court did not, if I recall, reach the contract questions

01:01 - 38.937 because the court concluded that as a matter of public policy, coverage

01:01 - 42.474 could not be afforded based on these facts under any circumstance.

01:01 - 46.469 And you've argued the Moore case, and that was purely decided upon

01:01 - 50.349 the allegations of, complaint and,

01:01 - 53.376 in language of the insurance contract.

01:01 - 57.580 Well, well, more, more, I would submit it's not a public policy case.

01:01 - 01.694 A more was purely a question

01:02 - 04.721 of whether there was an occurrence, an accident,

01:02 - 10.969 and therefore, the factual allegations of the struggle and the shots

01:02 - 14.873 being fired in all different directions and in short, acting incoherently.

01:02 - 19.969 All those facts, it's suggested to the court and in a, that

01:02 - 23.382 there was a potentiality for an accident.

01:02 - 26.485 So the court didn't need to go into the public

01:02 - 29.479 policy question, which is whether the statute

01:02 - 34.617 and what can be gleaned from the statute is an impediment to an insurance company.

01:02 - 36.061 I think that answered the question. I'm not sure.

01:02 - 40.099 Public policy decisions, especially in the arena of insurance

01:02 - 46.028 coverage, is a very slippery slope, as Justice Select is said.

01:02 - 48.140 And it's not like you're

01:02 - 52.711 you have a, table of options like, oh, let's jump into this public policy.

01:02 - 56.739 It's just not out there in most cases.

01:02 - 00.085 And maybe you have one here today and maybe you don't.

01:03 - 03.112 But you do have the facts of the complaint.

01:03 - 05.090 And you have your insurance contract.

01:03 - 06.592 Correct. That's. Yes.

01:03 - 11.387 But but you know, the certified question to this court is the public policy issue.

01:03 - 14.457 I mean, and, and, and, and and we

01:03 - 17.736 submit that any decision by the court

01:03 - 21.640 on this issue is limited to what is being put before the court

01:03 - 26.378 on this, on the public policy involving sex trafficking.

01:03 - 29.481 It's not to suggest, just as in Greenfield, that it would

01:03 - 33.142 be applied to other situations involving a nursing home.

01:03 - 35.487 Or some other types.

01:03 - 38.481 Isn't that the same thing that Justice Newman said in Greenfield?

01:03 - 41.960 This is yes, it's going to be with hair, right?

01:03 - 43.996 That's right. And I think that was the right to call.

01:03 - 45.597 That was the right decision in the court.

01:03 - 51.470 Should not stake out public policy issues broadly.

01:03 - 54.831 The court should look at the facts and the statutes.

01:03 - 57.342 Well, but that interests that's that's problematic

01:03 - 00.546 because the Third Circuit specifically asked us to say,

01:04 - 04.316 as found in Greenfield, which we certainly have the ability

01:04 - 07.910 to look at Greenfield and say, you know, a little dicey there.

01:04 - 10.556 I have a straightforward question.

01:04 - 13.826 Maybe, tell me how

01:04 - 18.197 I am to determine which criminal statutes amount to overriding

01:04 - 21.657 public policy versus regular public policy.

01:04 - 25.895 I think the real question is, when you look at this statute,

01:04 - 30.342 the legislature

01:04 - 34.346 enacted this law in 2014, in my view, to follow the money,

01:04 - 38.574 which was not to simply impose liability on traffickers,

01:04 - 40.653 but to reach

01:04 - 44.489 those, the profit and that facilitate sex trafficking.

01:04 - 47.516 Then they went further in 2020,

01:04 - 50.295 in the Buyer Beware Act, to impose

01:04 - 53.665 criminal culpability on the buyers. Right.

01:04 - 58.160 It is a long standing effort of the legislature to take steps

01:04 - 03.408 that are necessary to eradicate sex trafficking.

01:05 - 05.744 And if we extrapolate that into a standard

01:05 - 08.838 and the standard is, is that if to provide coverage.

01:05 - 12.775 No, no, no, no, the standard under which I'm supposed to look at a criminal statute

01:05 - 15.854 and determine whether because because

01:05 - 18.657 that's what the General Assembly does, they make public policy.

01:05 - 22.294 So a criminal statute is by definition, the public policy

01:05 - 23.996 of the Commonwealth of Pennsylvania.

01:05 - 26.698 So, I guess my my question

01:05 - 29.701 simply is taking your example of this statute,

01:05 - 33.195 what is the legal standard or principle I am to apply

01:05 - 36.174 when I look at a criminal statute and say, oh, no,

01:05 - 39.268 that's just public policy, not overriding public policy.

01:05 - 46.184 Well, I guess that's that's a good question.

01:05 - 46.586 Right.

01:05 - 50.155 How to distinguish between public policy and overriding public policy.

01:05 - 53.182 And I think I would submit that,

01:05 - 56.194 when we're dealing with sex trafficking,

01:05 - 02.334 which is a public welfare epidemic, when we're dealing with the fact

01:06 - 07.096 that even efforts to outlaw trafficking has not stopped the problem.

01:06 - 11.209 Where, I think

01:06 - 15.137 there is an intent to, as I say, follow the money.

01:06 - 18.317 Okay, so can you, can you plate that?

01:06 - 20.752 Because that's the same answer you just gave a few minutes ago.

01:06 - 25.090 Well, extrapolate that into a standard that I can move

01:06 - 28.117 to other statutes.

01:06 - 33.398 Well, I guess the I,

01:06 - 35.701 I think the big standard is this,

01:06 - 38.961 which is the question is whether relieving

01:06 - 41.974 the defendant of record,

01:06 - 44.810 personal financial responsibility, right,

01:06 - 49.305 will undermine the goal and purposes of of the statute.

01:06 - 52.250 Right. I think that that gets to the heart of it.

01:06 - 55.811 And I think relieving the defendant, they contracted

01:06 - 59.248 with your client for a policy of insurance.

01:06 - 03.628 And why isn't the answer to Justice Robson's question that it's simply

01:07 - 08.257 a fool's errand to distinguish between an overriding public policy

01:07 - 13.129 and a mundane public policy, because we have an entire crimes code

01:07 - 16.766 that we're not going to be able to pick apart, to delineate

01:07 - 22.304 which ones are going to be, a escape hatches for carriers.

01:07 - 24.249 Well, I think,

01:07 - 28.720 you know, if you look at Central Dauphin, that's the the decision there, right

01:07 - 33.983 where the issue was, there was an unlawful tax levy,

01:07 - 37.763 and there was liability.

01:07 - 41.724 And the entity looked to its carrier, right,

01:07 - 45.270 for insurance for the violation.

01:07 - 48.297 And the court said, well,

01:07 - 50.142 if we were to do so,

01:07 - 53.912 we would essentially, you know, subsidize unlawful activity.

01:07 - 58.441 And the the entity would be able to financially profit from

01:07 - 02.812 issuing an unlawful tax levy.

01:08 - 05.657 The statute says

01:08 - 08.684 the money should be returned to the citizenry.

01:08 - 15.667 And if the the the entity miscellany, you can just turn to its insurance company.

01:08 - 18.003 It defeats the whole purpose of the law.

01:08 - 22.698 And I guess the carrier can protect themselves

01:08 - 26.902 from all of the horrors that you just described.

01:08 - 31.183 The insurance carrier that wrote the umbrella policy

01:08 - 35.320 in this case appears to me to have looked

01:08 - 38.347 at the statute at issue in this case

01:08 - 43.395 and said, we're going to preclude coverage for anything that involves

01:08 - 46.565 abuse of minors, anything that involves

01:08 - 50.059 negligent investigation of what's going on in the facility.

01:08 - 53.271 I mean, it's a specific exclusion dealing

01:08 - 56.298 with precisely what we're talking about here.

01:08 - 00.378 I mean, you're a company, your companies, the resolution

01:09 - 04.106 trust, defendants, whatever the entity is called.

01:09 - 07.185 They could have protected themselves from this.

01:09 - 08.477 Eventuality.

01:09 - 10.456 They did not.

01:09 - 11.690 I mean, maybe they did.

01:09 - 15.784 I mean, I don't know what what remains pending in the Dec action.

01:09 - 18.797 I mean, they're certainly, incidental acts.

01:09 - 23.058 And there's there probably is, intentional acts, exclusion.

01:09 - 25.737 But why would we get involved with this?

01:09 - 27.973 We have we have,

01:09 - 31.200 defendants, policyholders who paid for coverage.

01:09 - 35.447 We have a situation where it's apparent

01:09 - 39.975 that some insurance carrier foresaw precisely what happened here.

01:09 - 43.288 Why would the Supreme Court of Pennsylvania get involved

01:09 - 46.549 with redrafting an insurance policy?

01:09 - 48.994 Well,

01:09 - 53.455 the violation of law exclusion or criminal act exclusion, right.

01:09 - 59.871 Is I think I said earlier sort of the belt and suspenders,

01:09 - 02.898 because that insurers are not contemplating that

01:10 - 06.035 they are insuring a risk.

01:10 - 11.073 That an insurer is engaging in conduct.

01:10 - 12.952 Right.

01:10 - 15.978 That undermines our state's laws.

01:10 - 16.656 Greenfield.

01:10 - 20.725 There was no violation of law exclusion in the case, nor was there one in.

01:10 - 23.161 However, as well.

01:10 - 26.064 In fact, I think, you know, in fact, in Haven

01:10 - 28.400 there was the knowing endangerment exclusion.

01:10 - 31.727 But the court felt that it was important to emphasize that

01:10 - 33.639 in the face of

01:10 - 37.475 the arguments that the exclusion was ambiguous, that it would be

01:10 - 42.781 against public policy to provide insurance for criminal or evil conduct.

01:10 - 45.550 So I think there is this

01:10 - 48.577 you know, the initial concept is that

01:10 - 51.990 you should have to protect yourself.

01:10 - 52.959 I'm sorry.

01:10 - 56.919 The concept is the carrier should not have to protect itself.

01:10 - 58.363 The carrier should not.

01:10 - 02.634 Well, have to, enact an exclusion where

01:11 - 06.829 the absence of that exclusion would allow them to provide coverage

01:11 - 09.941 that would offend the public policy of the Commonwealth.

01:11 - 14.346 That is, that is the core of it, that even if you were intending

01:11 - 19.208 to provide coverage for this activity, it offends

01:11 - 22.520 our morals or welfare.

01:11 - 25.824 You think the carrier that wrote the umbrella policy

01:11 - 28.560 just had a more thorough underwriting process?

01:11 - 32.530 Or did your did your client just want the premium so much

01:11 - 36.158 that they didn't put the exclusion in thinking that the hotel would just

01:11 - 38.670 shop the business somewhere else?

01:11 - 39.734 Which do you think it was.

01:11 - 42.340 Well, I can't,

01:11 - 44.909 I can't speak to underwriting intent

01:11 - 47.936 where I was not unaware

01:11 - 50.482 that the umbrella carrier had this exclusion.

01:11 - 51.350 Right.

01:11 - 54.085 I mean, I know I put this into their policy.

01:11 - 57.413 I highly I highly doubt that the primary

01:11 - 01.684 had any awareness of what the excess carrier was underwriting.

01:12 - 04.753 And and even if it did, I, you know.

01:12 - 06.831 Yeah,

01:12 - 10.993 I don't know that that would factor into into into the decision.

01:12 - 13.204 It would have no difference in this case wouldn't it.

01:12 - 16.231 This case wouldn't be here. Right.

01:12 - 20.145 If you say, well we can we you know, we could. Yes.

01:12 - 21.780 I mean we could draft exclusions

01:12 - 25.317 to try to envision every scenario that would, would, would happen.

01:12 - 27.952 But I can guarantee you there will be arguments.

01:12 - 29.154 We have been held in the last.

01:12 - 30.056 How would that work?

01:12 - 33.825 Just I mean, I don't want to belabor this, but let's say we weren't arguing

01:12 - 35.694 under the public policy and let's say we were

01:12 - 36.529 and we were

01:12 - 40.389 sitting in the shoes of Judge Kenny, and you were arguing criminal, criminal,

01:12 - 41.590 criminal acts, exclusion.

01:12 - 45.970 It would be done based on the allegations.

01:12 - 49.374 Would Judge Kenny simply have to say, is there anything in the allegations

01:12 - 53.769 that could be charged criminally upon which they might get convicted,

01:12 - 56.648 and therefore the criminal acts exclusion applies?

01:12 - 58.850 How how would it apply in practice here?

01:12 - 00.251 I don't think the district court

01:13 - 04.279 is in the position of deciding could it be prosecuted criminally?

01:13 - 07.525 So what's the district court's deciding in their own

01:13 - 11.353 right whether these facts fall within the criminal acts exclusion?

01:13 - 14.690 When the criminal acts exclusion, they're going to make that determination.

01:13 - 18.436 And that determination then is subject to, to review.

01:13 - 20.205 It seems like a lot more straightforward,

01:13 - 23.274 seems like a more straightforward way of addressing this

01:13 - 26.902 than a Third Circuit certification to the Pennsylvania Supreme Court

01:13 - 29.448 and cancel that.

01:13 - 30.715 I can't unravel that.

01:13 - 31.350 Yeah.

01:13 - 35.887 Council, even after Greenfield, we've seen policies

01:13 - 39.615 on numerous occasions that have a controlled substance exclusion.

01:13 - 42.427 Despite Greenfield,

01:13 - 45.454 because it makes business sense

01:13 - 48.657 to contain your exposure.

01:13 - 52.337 I can't quarrel with you.

01:13 - 57.666 I mean, carriers, will often, you know, fine tune policies, right?

01:13 - 00.512 To insert exclusions.

01:14 - 04.783 But I think that sort of strays from this from really I think the core question

01:14 - 09.354 of being certified, it's I don't think the issue here is, oh, well,

01:14 - 13.282 could the insurers have done a better job

01:14 - 16.885 right, at writing the insurance policy?

01:14 - 20.222 And these are the facts and that's that.

01:14 - 21.900 Ultimately I think that's a factor.

01:14 - 24.002 Once again, I keep coming back to the same issue

01:14 - 28.230 for the federal courts to make those determinations.

01:14 - 29.798 This is a really strict

01:14 - 31.777 right.

01:14 - 34.746 But this issue is is there a public policy right

01:14 - 37.773 underneath the, you know, as, as

01:14 - 40.452 to be discerned from the statute?

01:14 - 43.021 And then what is the required mens rea?

01:14 - 47.859 So, I appreciate these questions are good questions,

01:14 - 50.886 but ultimately I think that's for the really what the Trier fact

01:14 - 53.264 in this case, the district court has to wrestle with.

01:14 - 55.099 Okay, Mr. Selzer, we get it.

01:14 - 56.701 We understand your argument.

01:14 - 59.728 Is there anything you'd like to say in conclusion?

01:15 - 04.066 Well, since I sort of straight from my

01:15 - 08.170 my remarks that I when we let you Mr..

01:15 - 14.276 Well, I would just simply conclude to say that, and

01:15 - 16.087 and perhaps this is even recognized

01:15 - 20.358 by my esteemed colleague, we we all recognize that commercial sex

01:15 - 24.720 trafficking is is a is an epidemic in the state.

01:15 - 28.624 It impacts the public welfare and safety of our citizenry.

01:15 - 33.305 The legislature

01:15 - 37.475 has enacted laws over several years in a

01:15 - 41.336 in an effort to eradicate, this horrific crime.

01:15 - 45.240 I think it stands on its own,

01:15 - 50.379 akin to the heroin problem that we have

01:15 - 54.392 recognized by Justice.

01:15 - 57.295 Newman,

01:15 - 59.764 that every case has to be viewed on its merits.

01:15 - 02.791 And so this

01:16 - 08.397 calls for a determination that our public policy,

01:16 - 11.800 as reflected in the human trafficking law,

01:16 - 15.904 may advocate the duty to defend or indemnify,

01:16 - 19.341 because if we find otherwise

01:16 - 24.489 and if hotels can essentially, pass the buck

01:16 - 28.717 to the insurance company for their culpability,

01:16 - 33.188 we will have undercut the efforts of the legislature,

01:16 - 36.334 in their effort

01:16 - 38.937 to eliminate sex trafficking in Pennsylvania.

01:16 - 39.338 Okay.

01:16 - 44.876 We would ask that, that you, answer both certified questions in the affirmative.

01:16 - 47.845 And I thank you for such a vigorous, oral audience.

01:16 - 49.013 Thank you, Mr. Selzer.

01:16 - 51.082 Lester. Obviously. Yes.

01:16 - 52.083 Enjoy yourself.

01:16 - 55.820 Excellent arguments by both sides.

01:16 - 56.888 Thank you so much.

01:16 - 58.914 Mr. Miller. Would you call the next case?

01:17 - 02.460 The next case for the court's consideration

01:17 - 06.021 is the matter of Commonwealth versus her.

01:17 - 10.659 Commonwealth versus his honor has an elaborate procedural history.

01:17 - 14.372 Mr. hitch was pled guilty after being arrested.

01:17 - 18.066 He pled guilty on July 19th of 2013

01:17 - 22.137 to DUI and possession of controlled substances.

01:17 - 25.450 He was sentenced to a period of incarceration,

01:17 - 28.510 after which he would have a lengthy period of supervision.

01:17 - 32.648 Upon the completion of the period of incarceration.

01:17 - 36.652 Mr. Michener sought to transfer his supervision

01:17 - 40.856 from Delaware County to the state of Delaware

01:17 - 44.292 because his mother had taken a stroke, and Mr.

01:17 - 47.429 Kitchener was involved in her care.

01:17 - 52.601 His supervision went along well until about six months

01:17 - 55.937 prior to the expiration of the period of supervision.

01:17 - 01.219 At that point, he stopped appearing, and reporting in the state of Delaware.

01:18 - 06.491 The state of Delaware then notified Delaware County of Mr.

01:18 - 11.486 Kitchener's lack of reporting, and a bench warrant was issued for his arrest.

01:18 - 14.766 Now, keep in mind that the period of supervision ran

01:18 - 18.393 from 2013 to July 19th of 2018.

01:18 - 21.706 Those facts become important because the bench warrant

01:18 - 24.676 was issued February 1st of 2018.

01:18 - 29.347 Mr. Kitchener was arrested January 13th of 2019.

01:18 - 32.808 Outside of the period of his original supervision.

01:18 - 35.353 Certain gag non

01:18 - 39.424 proceedings occurred at that point, and ultimately Mr.

01:18 - 44.586 Kitchener was released but then rearrested on additional violations.

01:18 - 49.424 The gag non hearings extended beyond the original term of probation.

01:18 - 54.272 The appellant challenges the validity of the revocation proceedings

01:18 - 58.700 at this at that point and the case, the question of the

01:18 - 02.747 of the case for the Supreme Court's consideration is whether the lower court.

01:19 - 06.117 Aird, in its discretion in finding the defendant in violation

01:19 - 10.378 of his probation, where he had served the entirety of his sentence.

01:19 - 14.983 Even though Mister Michener's original term of supervision expired.

01:19 - 16.994 Do you mind if I repeat the question?

01:19 - 19.130 They told me just.

01:19 - 19.431 You were.

01:19 - 21.299 They told me you wouldn't have to stop it just yet.

01:19 - 22.691 All right.

01:19 - 25.604 Okay.

01:19 - 27.638 You're getting.

01:19 - 31.767 So the question for the court's consideration in the Hitcher matter

01:19 - 34.645 is whether the lower court abused its discretion

01:19 - 37.739 in finding the defendant in violation of his probation

01:19 - 41.176 after the expiration of the probationary period.

01:19 - 44.980 We'll hear the argument.

01:19 - 47.959 Good morning.

01:19 - 51.763 In this case, appellant pled guilty to driving under the influence

01:19 - 56.400 and was sentenced to 1 to 2 years of incarceration, followed by three years

01:19 - 01.963 of probation following a series of alleged technical probation violations.

01:20 - 07.078 The issuance of bench warrants, the inability to find or apprehend

01:20 - 11.072 appellant and appellant being charged with additional crimes.

01:20 - 15.753 A probation revocation hearing was held at the hearing.

01:20 - 20.558 The Commonwealth presented evidence of probation violations, new crimes

01:20 - 25.263 and appellant's absconding that occurred both before

01:20 - 28.590 and after appellant's maximum probation date.

01:20 - 31.969 And the trial court considered all these events

01:20 - 34.996 and finding he violated his probation.

01:20 - 39.677 We granted Alec's order to determine whether probation may be revoked,

01:20 - 44.315 only for violations that occurred prior to the expiration

01:20 - 49.020 of the originally imposed term of probation, or whether the trial court

01:20 - 53.849 may, in effect, extend the probationary term during periods

01:20 - 57.028 during which defendant

01:20 - 00.055 absconds from supervision.

01:21 - 01.699 Please proceed.

01:21 - 03.234 Good morning.

01:21 - 05.970 Madam Chief Justice, honorable justices,

01:21 - 08.997 excuse me, of the Pennsylvania Supreme Court.

01:21 - 11.843 My name is, excuse me, William Wiseman.

01:21 - 18.173 My Supreme Court number is 39220, and I represent the appellant, William Hitch ner.

01:21 - 23.211 In Commonwealth versus Rosario

01:21 - 27.449 and 2023 at 294 a third 338.

01:21 - 32.129 This court ruled that sections 9754

01:21 - 37.602 and 9771 of the Judiciary Act, title 42, prohibit

01:21 - 40.829 the revocation of a term of probation before it starts.

01:21 - 46.368 In other words, these two statutes prohibit the lengthening

01:21 - 50.338 of a specified term of probation at the front end.

01:21 - 52.750 Appellant William Michener contends

01:21 - 55.777 that those same statutes prohibit the revocation

01:21 - 58.623 of a of a term of probation

01:21 - 01.650 imposed by the court that has expired.

01:22 - 05.086 In other words, those two statutes,

01:22 - 06.964 prohibit

01:22 - 09.901 the revocation of probation,

01:22 - 12.928 by lengthening it at the back end.

01:22 - 16.741 The two statutes at issue here are sections

01:22 - 21.269 97, 54 and 9771 of title for use me counsel.

01:22 - 23.547 But before we get there, I.

01:22 - 25.149 I just need to clarify something

01:22 - 28.176 because it's going to put everything else in the context for me anyway.

01:22 - 31.088 I understand the certified question we took, and I think

01:22 - 34.883 we may have put the rabbit in the hat, but I just want to be clear on something.

01:22 - 37.762 Maybe you and the Commonwealth can. Can I clarify this?

01:22 - 40.898 Ultimately, the gag not hearing that we're talking about occurred on November

01:22 - 45.694 17th, 2021, and was continued until April 26th, 2022.

01:22 - 47.104 Is that correct?

01:22 - 49.273 Yes and no, sir.

01:22 - 52.534 The actual gag non hearing

01:22 - 56.304 gag non two hearing was the November 2021 date.

01:22 - 00.175 So at that hearing, the only person who testified

01:23 - 03.688 was the Delaware County Probation Officer, Deborah Lombardo.

01:23 - 04.956 Right. That would be correct, sir.

01:23 - 07.458 And just so I'm clear from reading of the record,

01:23 - 08.859 she didn't testify that anything

01:23 - 12.897 that offended did or did not do while on probation during the terms

01:23 - 16.524 natural before the terms natural expiration on July 19th, 2018.

01:23 - 19.570 Her entire testimony related to the defendant's absconding

01:23 - 23.098 and failure to appear, which occurred on the record in 2019.

01:23 - 24.575 Is that correct? That's correct.

01:23 - 27.278 So how do we violate somebody's probation

01:23 - 30.805 for conduct that occurred after the natural expiration of the date?

01:23 - 34.943 My appellant's position is that that the court can't do that

01:23 - 38.279 is I mean, isn't this in a sufficiency question as opposed to whether or not

01:23 - 39.991 there's a there's an equitable tolling?

01:23 - 44.452 Well, no, it's it it's not it's not a sufficiency question.

01:23 - 46.597 I don't think we challenged whether or not,

01:23 - 49.624 there was sufficient evidence to establish a violation.

01:23 - 53.070 If I'm a I'm a trial judge at a gag non hearing, and a probation officer

01:23 - 56.407 comes up in front of me and the defendant's probation expires

01:23 - 58.409 in July 2018.

01:23 - 59.410 And the probation officer

01:23 - 02.704 keeps testifying about a failed drug test that occurred in 2019.

01:24 - 03.949 Again, aren't

01:24 - 07.776 I putting the rabbit in the hat because the probation, by its own terms,

01:24 - 12.047 expired on July 18th, 2018 July 19th?

01:24 - 14.792 Why do I care what happened in 2019?

01:24 - 17.819 Judge Pagano, agrees.

01:24 - 21.122 Judge Pagano in the Delaware County Court of Common Pleas agreed.

01:24 - 24.168 In fact, the judge went so far as to find that.

01:24 - 28.897 I know he agreed, but the Superior Court basically reversed him and said, you.

01:24 - 32.009 Well, this was a. Court did did.

01:24 - 33.644 I mean, before we get to the certified question.

01:24 - 36.671 My question is this is going to my what my way thinking

01:24 - 39.874 as a former trial judge, this appears to be in a legal sense.

01:24 - 42.453 If it's in a legal sentence, we have to correct that a legal setting

01:24 - 44.397 before we can even get to the certified question.

01:24 - 49.160 You can't sentence somebody for a violation

01:24 - 51.562 at a current after the expiration of their probation, right?

01:24 - 53.264 Yeah, I it's fundamental.

01:24 - 54.932 That's our position. Yes.

01:24 - 57.268 And I think that's that's the overriding issue here.

01:24 - 59.136 So what not not whether or not

01:24 - 02.931 sufficient evidence was presented, but whether or not you can even violate

01:25 - 07.202 the defendant for transgressions that occurred after that.

01:25 - 09.313 I think we're saying the same thing.

01:25 - 11.248 Yeah. Counsel, I don't I don't.

01:25 - 13.084 The question is,

01:25 - 16.053 the question is I think the answer is it's found itself.

01:25 - 18.289 You I don't think anybody's arguing.

01:25 - 22.016 I don't think the the prosecutor or probation or parole is arguing that

01:25 - 25.362 you can charge someone with violating a term of probation

01:25 - 27.498 after the probation has expired.

01:25 - 30.658 I don't think I think I mean, that seems to be I don't know.

01:25 - 32.992 Have you found somebody that disagrees with you on that?

01:25 - 37.675 To answer your question.

01:25 - 40.478 It seems that it's

01:25 - 43.838 seems to have been assumed that the probation continues.

01:25 - 46.450 So that's the point. So so really, that's the issue.

01:25 - 51.246 The court, the the the legal question can a term of probation.

01:25 - 52.357 Can someone be charged

01:25 - 55.683 with violating a term of probation when they aren't on probation?

01:25 - 59.163 I don't think anybody would agree.

01:25 - 00.598 We agree that they could.

01:26 - 03.625 The question is did did did.

01:26 - 04.569 It was a proven.

01:26 - 07.037 And this I think, does justice. McCaffrey's point.

01:26 - 11.432 Was there proof at the Gannon two hearing that at the time

01:26 - 16.638 that that he had absconded, that he wasn't under supervision

01:26 - 19.717 during a period that he was supposed to be under supervision?

01:26 - 22.620 Because you would have to agree that if you're not under supervision,

01:26 - 26.281 that the period of time you are absconded, you are not under supervision.

01:26 - 27.758 I would agree. Okay.

01:26 - 30.752 So I think justice McCaffrey saying

01:26 - 35.332 the question is not whether they can do what you're asking.

01:26 - 36.234 They clearly can't.

01:26 - 39.661 The question is, is what they did here is did they

01:26 - 43.698 did they did they extend a period of parole for a probate

01:26 - 47.902 or a probation for a probation violation that occurred after the term was over?

01:26 - 52.006 Their argument is the term wasn't over because you were absconded.

01:26 - 54.342 You weren't under supervision.

01:26 - 56.755 So the

01:26 - 59.857 question is that the gag on two hearings, as I understand.

01:26 - 05.896 Okay, so as the gag on two hearing was their evidence that your client,

01:27 - 09.157 during a period when he was supposed to be under supervision,

01:27 - 12.694 what had absconded?

01:27 - 16.231 Sir, are you asking if there were the original?

01:27 - 18.776 I'll see you. I'm trying to clarify your question.

01:27 - 22.270 The original run date of the probation, three years

01:27 - 26.541 from when it was imposed was July 19th, 2018.

01:27 - 30.912 And there was no evidence at the gag to that

01:27 - 34.758 of any transgressions of any violations before that date.

01:27 - 37.785 So there was no evidence that he had absconded prior to that date.

01:27 - 39.697 That's correct.

01:27 - 41.999 And with the with the Superior Court,

01:27 - 45.026 did I think, if I understand it correctly,

01:27 - 50.865 is they concluded that your client absconded

01:27 - 53.844 just because he wasn't under supervision,

01:27 - 57.915 as opposed to making the legal determination of whether or not

01:27 - 03.211 that was actually absconding, because you need to prove a violation

01:28 - 07.382 in order to come to the conclusion that he absconded.

01:28 - 08.726 Correct. Yeah.

01:28 - 11.195 And that's that's what that's what happened here.

01:28 - 11.796 I agree.

01:28 - 14.098 They just looked at the fact that he wasn't

01:28 - 18.126 under supervision and missed the whole point, that unless he

01:28 - 22.630 he was found in violation, he was free not to be under supervision.

01:28 - 26.310 Well, what about the bench warrant that would issued in February

01:28 - 29.313 1st of 2018,

01:28 - 33.341 about six months before his probationary term ended,

01:28 - 37.745 that resulted in that resulted in the

01:28 - 42.717 you know, as I understand, he he was the defendant

01:28 - 45.953 the appellant was arrested on that warrant

01:28 - 50.758 after the expiration of the original probationary term.

01:28 - 55.806 Well, the probationary term ended in July 2018,

01:28 - 58.242 and the bench warrant was issued in February.

01:28 - 59.810 That would that would be correct?

01:28 - 00.578 That was that correct?

01:29 - 03.480 There was a bench warrant reflected in the record or the docket.

01:29 - 06.150 I had problems because that's exactly my concern.

01:29 - 10.854 No where in this record is the initial bench warrant.

01:29 - 11.878 Docketed.

01:29 - 15.459 I'm sorry, Justice Doherty.

01:29 - 19.821 I haven't looked at the docket, but it's it's it's a matter of record in the

01:29 - 23.458 in the proceedings from the original gag and on two hearing in,

01:29 - 28.863 I believe November 29th, November 2019, that there was a warrant issued

01:29 - 33.701 because of information received from the state of Delaware, and, and

01:29 - 38.206 and that information was received during the pendency of his probation.

01:29 - 39.183 That's correct.

01:29 - 40.051 That's correct.

01:29 - 43.077 And the gag non two hearing took place.

01:29 - 46.814 And the first gag non hearing

01:29 - 50.485 took place after the original expiration

01:29 - 53.297 of the probationary period, but dealt solely

01:29 - 56.491 with allegations of violation that occurred

01:29 - 00.695 prior during the original probationary period.

01:30 - 04.074 Thus the warrant was issued in February 2018.

01:30 - 06.910 Before and I'm sorry, probation expired.

01:30 - 07.445 Okay.

01:30 - 11.539 However, that initial gag non hearing

01:30 - 16.220 dealt solely with allegations presented by the state of Delaware.

01:30 - 20.047 The probation that had been transferred down there, the superior

01:30 - 24.862 the defendant was the appellant was was found in violation.

01:30 - 27.064 He was we sentenced. He appealed.

01:30 - 30.858 And the Superior Court sent that back, saying, the

01:30 - 34.571 the budget, the grounds for the violation were inadmissible hearsay.

01:30 - 37.107 You got to give him a new gag. Two, two hearing.

01:30 - 38.375 And that's when all this started.

01:30 - 42.570 By then, you know, as supervision period had obviously expired.

01:30 - 45.182 And that's when all this started.

01:30 - 47.317 Okay. Thank you.

01:30 - 48.286 So until what?

01:30 - 51.312 Until he was apprehended

01:30 - 53.457 and post what was happening?

01:30 - 54.159 What was happening?

01:30 - 55.592 At least we can glean from the record

01:30 - 58.796 between the period of the and what you say is the end of his original

01:30 - 01.823 probationary term and the period he was apprehended.

01:31 - 03.767 Well, he was which time?

01:31 - 08.463 I mean, he was he was apprehended several he was apprehended, jailed, released

01:31 - 14.244 several, and quite a few times because he he would he would be confined.

01:31 - 16.447 He he'd undergo a gag on one hearing.

01:31 - 18.840 I'm talking about after his after his.

01:31 - 21.819 When do you believe his probation ended?

01:31 - 24.254 July 19th, 2018.

01:31 - 25.823 July 2018.

01:31 - 29.116 So was he prior to that

01:31 - 32.386 during the period of his supervision, had he absconded?

01:31 - 34.064 He did.

01:31 - 37.091 You're not disputing that.

01:31 - 41.195 Yeah.

01:31 - 44.942 No, I'm not, because he.

01:31 - 47.911 Because he ultimately

01:31 - 49.746 faced a gag on two hearing. Right.

01:31 - 53.207 So how can you how can you be under supervision if you've absconded?

01:31 - 54.952 You're not.

01:31 - 58.355 So there's a period of time that he was abscond, that he was, he had absconded.

01:31 - 01.091 That should not count toward his original period.

01:32 - 02.759 No, I'm not saying it shouldn't count.

01:32 - 05.095 Why should agree? He absconded. Why should it?

01:32 - 06.997 Why, if you're not under supervision?

01:32 - 08.599 Because you absconded.

01:32 - 11.468 How is how are you under probationary supervision for that period of time?

01:32 - 16.006 Well, you're not, but it isn't a the fact that you can't abscond

01:32 - 20.677 unless you violated your probation while the absconding itself is, is a violation.

01:32 - 27.017 Okay, so so could could he have incurred the result here just by the absconding

01:32 - 30.611 or did they first have to prove the initial violation?

01:32 - 36.317 No, I believe the absconding is valid.

01:32 - 41.098 My understanding anyway, is the absconding is itself is a violation.

01:32 - 43.967 Absconding to me means you were supposed to report.

01:32 - 46.837 You didn't. We're supposed to have an approved address. We didn't.

01:32 - 47.838 We can't find you.

01:32 - 50.607 We've left messages, cards in your door.

01:32 - 52.042 You're not around.

01:32 - 55.069 So, based upon during his period of probation,

01:32 - 58.272 your client failed to appear

01:32 - 03.053 during this period of probation to the probation officer several times,

01:33 - 07.982 such that the probation officer requested a bench warrant

01:33 - 12.420 for him as a violation of the transferred probation. Yet?

01:33 - 13.464 Am I correct?

01:33 - 18.826 Prior to the to the to the scheduled expiration of probation in July of 2018,

01:33 - 23.698 when he was sentenced, the supervision was transferred to the State of Delaware.

01:33 - 29.337 The State of Delaware notified prior to the expiration of the probationary term.

01:33 - 32.773 The State of Delaware notified Delaware County

01:33 - 35.719 that he he's in violation.

01:33 - 38.121 We're sending it back under the Interstate compact.

01:33 - 39.323 That's all they can do.

01:33 - 42.292 You don't have violation proceedings down there.

01:33 - 45.319 They send it back to Delaware County to deal with it.

01:33 - 47.664 Delaware County got it back.

01:33 - 50.157 The Delaware County requested a warrant.

01:33 - 53.737 That was February 1st, 2018.

01:33 - 55.072 February 1st, 2008.

01:33 - 57.107 They request a warrant. So why shouldn't we just apply?

01:33 - 00.301 In response to Justice Socrates question the doctrine of equitable tolling

01:34 - 02.846 and extend it off for another six months is the question.

01:34 - 05.349 I'm sorry, could you repeat that, sir?

01:34 - 07.184 February 1st, 2018.

01:34 - 10.053 You just said they issued a bench warrant because you failed to appear,

01:34 - 12.856 which we all know is a violation of your probation, correct?

01:34 - 15.692 Yes, sir. He could have been violated based upon that.

01:34 - 20.454 That simple failure to appear sends a 3 to 6 months when he's picked up.

01:34 - 22.132 You agree with that? Yes.

01:34 - 25.693 So the probation expires July.

01:34 - 28.505 The bench warrants issued February 1st.

01:34 - 30.641 He doesn't get picked up again until September.

01:34 - 31.708 Right? Correct.

01:34 - 32.943 All right, so why don't we just apply

01:34 - 35.970 the doctrine of equitable tolling for the extra 6 or 7 months?

01:34 - 40.951 Well, that's the whole point that the I don't believe equitable tolling applies

01:34 - 44.178 here because it's not it's not permitted by the probation statute.

01:34 - 45.946 It's not in the statute.

01:34 - 51.452 9754 requires a fixed term of supervision.

01:34 - 52.096 Correct.

01:34 - 56.190 That's what this court ruled in Rozario, that means a fixed term beginning in

01:34 - 59.469 the lead, 9754

01:34 - 04.107 does not allow the does not mention tolling.

01:35 - 08.436 It doesn't mention circumstances under which tolling might take place.

01:35 - 09.514 It doesn't,

01:35 - 14.651 it doesn't give any other guidance on, on on what is what is absconding.

01:35 - 16.019 So it's not in there.

01:35 - 20.781 It's, there's your position that a defendant sentenced to probation,

01:35 - 24.518 the defendant fails to appear, never shows up

01:35 - 29.457 and the bench warrants issued, but it doesn't count,

01:35 - 32.502 or we're not to take that into consideration

01:35 - 35.138 based upon the fact that the statute doesn't indicate it.

01:35 - 36.306 Is that what you're sharing with. Oh, no.

01:35 - 39.900 What I'm saying is if he's if he's if he's if a term of probation is

01:35 - 44.014 if the appellant is sentenced to a term of probation and absconds

01:35 - 47.675 a week later and there's a warrant issued, he's violated his probation.

01:35 - 49.252 And that's what we have here. Correct?

01:35 - 50.154 That's correct.

01:35 - 53.156 Okay. Well no no no no no no. Yeah.

01:35 - 55.559 This is this is in this case, Mr.

01:35 - 56.294 Justice Stocker.

01:35 - 02.232 This is an anomaly because because he he violated early

01:36 - 07.261 on, and, and the Commonwealth brought that violation into court

01:36 - 12.032 within the period of time that he was on, he was on probation.

01:36 - 14.746 Court

01:36 - 17.905 found that he was in violation, but based on hearsay.

01:36 - 20.283 And it got in and it was sent back.

01:36 - 23.310 But by the time it got back from superior Court,

01:36 - 27.357 the probationary term had had expired.

01:36 - 29.760 And and for whatever reason,

01:36 - 31.628 I think I know why, but I'm not going to speculate.

01:36 - 34.889 But for whatever reason, at that second CAG

01:36 - 38.092 two hearing in 2021,

01:36 - 41.629 the Commonwealth abandoned

01:36 - 44.441 just gave up on on any allegations

01:36 - 49.146 of a violation prior to the expiration that the original expiration,

01:36 - 51.715 the original abscond that you're saying they gave up on the original.

01:36 - 53.283 It's gone. Well, they didn't give up on it.

01:36 - 54.618 They just didn't present any evidence.

01:36 - 57.978 Instead, that's what I was trying to get at at the beginning of the my remarks.

01:36 - 01.515 What happened in 2021 was that they testified

01:37 - 06.153 to things that happened in 2019, which was after the natural expiration.

01:37 - 07.330 They didn't abandon anything.

01:37 - 07.732 They just didn't

01:37 - 12.736 put anything in about the pre well, the pre natural expiration, violation.

01:37 - 13.538 In other words,

01:37 - 16.797 they didn't put the evidence in that he had scanned while he was on probation.

01:37 - 19.910 Instead they talked about the failed drug test and the bench warrant

01:37 - 23.771 that was issued in 2019 which was after the expiration of the probation.

01:37 - 24.948 That's correct.

01:37 - 25.449 Where was it?

01:37 - 28.042 Where was he while the Superior Court appeal was going?

01:37 - 31.556 There was two.

01:37 - 34.624 Superior Court opinion I for the gag on two hearing.

01:37 - 35.293 Where was he?

01:37 - 38.719 Was he under supervision at any point while he was well he was.

01:37 - 42.389 The gag on the original gag on two was was in 2019

01:37 - 45.936 after he had been apprehended, meaning even show up.

01:37 - 47.804 He didn't even show up for the times he did.

01:37 - 50.607 I mean, he he was he was in and out during that.

01:37 - 51.908 Was he under supervision?

01:37 - 57.104 So, so when so the supervision and according to you, on July 1st,

01:37 - 00.550 19 July 19th, what did he show up

01:38 - 03.577 in June of 2019?

01:38 - 07.414 I'd have to I don't I don't have all.

01:38 - 11.785 Did he show up in May I know that he he was supposed to he was in and out.

01:38 - 14.197 There were times he would get picked up.

01:38 - 16.199 No. But was he showing up for his check ins with.

01:38 - 17.101 He was not.

01:38 - 18.635 He was no. He's absconded.

01:38 - 19.819 Well. He was involved in the.

01:38 - 21.272 Okay.

01:38 - 23.340 Yeah. You absconded. He was in violation of probation.

01:38 - 25.775 He wasn't under Superintendent Show. He gave hot urine.

01:38 - 27.344 He wasn't under supervision.

01:38 - 28.778 He. I want you to repeat that.

01:38 - 30.146 That's my contention. Right.

01:38 - 32.048 That supervision ended in 2018.

01:38 - 33.650 No, but I'm talking about before 2019.

01:38 - 36.586 Was he under supervision?

01:38 - 38.421 Well before July 2019.

01:38 - 41.324 Was he under supervision or had he absconded?

01:38 - 43.960 You can't be both.

01:38 - 46.296 Yeah, well, no, I,

01:38 - 48.465 I that's the whole point of the probation.

01:38 - 51.167 Didn't, didn't survive July 28th.

01:38 - 54.194 Understand I'm saying prior to I'm saying prior to July

01:38 - 57.731 for all the period from July prior, how long was his probation?

01:38 - 59.676 Three years.

01:38 - 03.980 Was he under supervision during that three year period prior to July 28th?

01:39 - 04.115 Yeah.

01:39 - 06.349 Well is it.

01:39 - 08.218 Yes. Until it expired.

01:39 - 10.820 Well, if you said he absconded, how can you be absconded

01:39 - 12.722 and under supervision at the same time?

01:39 - 13.924 And you're.

01:39 - 16.793 Well, I'm talking all right. I'm not under.

01:39 - 19.562 I'm sorry, sir, I'm not understanding the question.

01:39 - 20.563 He's on probation.

01:39 - 24.124 Probation expires July of 2018.

01:39 - 27.771 In February 2018, there's a bench

01:39 - 31.541 warrant issued because he failed to follow conditions of probation.

01:39 - 32.443 That's correct.

01:39 - 36.904 He's not arrested until January of 2019.

01:39 - 37.971 That's correct.

01:39 - 40.417 At that point, he was arrested

01:39 - 44.011 based upon the bench warrant in 2018.

01:39 - 44.655 Correct.

01:39 - 49.793 So it's your position that as long as an individual bench warrants

01:39 - 53.396 longer than the term of their probation, they get a free pass.

01:39 - 56.299 No, Ben, tell me as judge.

01:39 - 59.326 But justice Providence trying to ask you

01:39 - 02.138 from January from February 2018.

01:40 - 05.199 So he was arrested in 19 right.

01:40 - 08.445 Was he under supervision or did he abscond?

01:40 - 11.181 Was under supervision until July of 2018.

01:40 - 13.717 He absconded before July of 2018.

01:40 - 17.854 He violated his probation counsel, I think in February.

01:40 - 21.548 And when he was picked up in 20 and when he was picked up, he was

01:40 - 24.651 he was subject to will to hear a gag on two

01:40 - 28.756 hearing for the violations that occurred prior to July 2018.

01:40 - 32.760 That's what the Commonwealth attempted to prove at the at the first gag on two

01:40 - 38.298 hearing, counsel was where I think the problem is that we're speaking.

01:40 - 40.777 We're using two terms interchangeably.

01:40 - 44.071 Justice Bronson and Justice Daugherty are asking you a simple question.

01:40 - 48.042 He's on a bench warrant status before the expiration of his natural term.

01:40 - 51.745 He was on probation, but he wasn't being supervised.

01:40 - 53.456 That is correct.

01:40 - 56.693 That's that that was a distinction in statute is the statute.

01:40 - 57.794 The statute says.

01:40 - 00.930 And imposing an order of probation, the court shall specify at the time of

01:41 - 05.859 sentencing the length of any term during which the defendant is to be supervised.

01:41 - 09.139 Right. So is what is there.

01:41 - 11.775 So from the date of the bench warrant to the end

01:41 - 15.102 of his original probation term, was he being supervised?

01:41 - 15.846 Because that's what.

01:41 - 17.113 Well, okay then how could it count

01:41 - 19.537 toward his period of probation if he wasn't being supervised?

01:41 - 21.985 Because

01:41 - 24.854 because he was given a three year term that expired

01:41 - 28.058 after a three year term under which he's supposed to be supervised, he abscond.

01:41 - 29.526 So he's not supervised.

01:41 - 33.163 I don't I well, I mean, that's that's the whole that's the whole issue

01:41 - 37.257 here is whether or not my concern at my concern is if we

01:41 - 44.031 my concern is tell me how how if we adopt your view of this

01:41 - 49.036 so we don't encourage people on probation to go into the wind

01:41 - 54.241 until the end of their termination to avoid being arrested on a bench warrant

01:41 - 55.618 and simply come back

01:41 - 59.355 in after the fact and say, hey, I don't have to come to a gag on you.

01:41 - 00.890 Never. You didn't arrest me.

01:42 - 02.725 You never proved I absconded.

01:42 - 06.996 You know, I I've you know, I escaped, I avoided justice promise.

01:42 - 10.023 And my point is not that he is beyond reach

01:42 - 14.027 if he is violated prior to the expiration of of of his

01:42 - 17.798 of the probationary term, he is not beyond the reach of the courts.

01:42 - 19.442 You cannot have.

01:42 - 22.679 He can have a violation hearing after the term expires.

01:42 - 25.115 So this goes to justice McCaffrey's point at the beginning.

01:42 - 28.718 Your issue is not that you're you're not claiming

01:42 - 31.821 that a person who absconds is under supervision.

01:42 - 35.024 You're claiming they simply didn't prove at the gag.

01:42 - 37.694 On two, hearing that he had absconded.

01:42 - 39.395 Correct. That's your point.

01:42 - 42.365 I mean, it's a very it's a very it's a it's it's an evidentiary issue.

01:42 - 44.200 It's not a legal question. It's an evidentiary issue.

01:42 - 50.097 Did they prove that he had absconded prior to the termination of his original term?

01:42 - 54.268 And you're saying they didn't because they abandoned it?

01:42 - 55.312 That's correct.

01:42 - 57.647 Okay. That's correct. No one asked the question.

01:42 - 00.316 Why are you here in January or.

01:43 - 03.653 Yeah, when he was recovered, he's now brought in custody.

01:43 - 06.680 I assume you're in Delco.

01:43 - 10.017 In, January of 2019.

01:43 - 12.795 Right. What.

01:43 - 16.957 What's absent at least I could not find from the record.

01:43 - 20.103 Is there any indication that he was standing

01:43 - 23.664 before a Delco judge because he had been picked up

01:43 - 27.467 on a bench warrant for absconding probation?

01:43 - 30.504 I don't, but do you know where you don't know?

01:43 - 33.149 Finish, please. I'm asking. That's the question.

01:43 - 37.144 No, no, no, there would be evidence on the record that he absconded,

01:43 - 40.480 which would defeat your argument that it was not introduced.

01:43 - 44.294 So what I'm trying to get to the to me, the pivotal question is

01:43 - 46.320 when he stood before Delaware County Judge,

01:43 - 49.432 did anybody say, where'd you come from?

01:43 - 53.469 We transferred this to Delco to Delaware, and someone would have to say,

01:43 - 54.205 yes, Your Honor.

01:43 - 59.275 He violated or he absconded from Delaware State and they violated him.

01:43 - 01.578 And he's before us on a bench warrant.

01:44 - 04.113 You would have to lift the bench warrant.

01:44 - 07.474 The Delaware County judge would have to lift the bench warrant,

01:44 - 12.579 which means if that so, then it's part of the record that there was evidence

01:44 - 16.049 that he absconded up and that a gag on one hearing

01:44 - 18.061 there were hearing in front of a judge, correct?

01:44 - 20.797 No, no, it's a hearing in front of a hearing master.

01:44 - 22.165 And I don't believe it was recorded.

01:44 - 25.702 And I didn't represent him through these these proceedings.

01:44 - 27.637 The bench warrant withdrawn at the hearing

01:44 - 30.173 that the gag on one hearing he was released,

01:44 - 32.675 but the for the bench warrant had to be withdrawn,

01:44 - 34.877 which means it has to be part of the record

01:44 - 38.672 that there was an a bench warrant that was issued during his term of probation,

01:44 - 39.216 I wonder.

01:44 - 43.277 Yeah, that was I, I can I know I can clarify when you did

01:44 - 48.582 day was the first the first gag on Justice Daugherty was January 23rd, 2019.

01:44 - 51.361 Defendant picked up a new arrest. He was arrested.

01:44 - 53.763 At that point, they had to stablish probable cause

01:44 - 55.331 that he had failed to appear.

01:44 - 57.800 The defendant was released. The bench warrant was withdrawn.

01:44 - 00.827 It was ultimately continued because of the Superior Court appeal

01:45 - 04.907 that went up the gag non hearing that we're limited to today, I believe.

01:45 - 05.643 Anyway,

01:45 - 08.669 was what I just asked at the beginning because I wanted to be clear on that,

01:45 - 12.039 which was November 17th, 2022, 2021,

01:45 - 17.720 which was continued to April 26th, 2022, where the testimony that resulted him

01:45 - 21.682 in being sentenced was based upon probation officer Deborah Ludlum.

01:45 - 25.819 Berto of Delaware County's test of testimony, which had to do with

01:45 - 29.022 what happened in 2019 and 2020.

01:45 - 30.334 That's what happened.

01:45 - 32.068 So with the gag, not one hearing,

01:45 - 35.462 they lifted the bench warrant, continued it for the gag non two hearing.

01:45 - 38.641 Meanwhile, there's a Superior Court case that went all the way up.

01:45 - 41.010 Superior court kicked the case back.

01:45 - 42.979 He had a new arrest at that point.

01:45 - 44.914 That's why I asked a question at the outset,

01:45 - 46.816 because I thought I was going to streamline this process.

01:45 - 48.751 And I think we're playing who's on third now?

01:45 - 51.654 Well, I think he got a new arrest after he'd been incarcerated

01:45 - 53.556 if after his incarceration. Correct.

01:45 - 56.059 And then Officer Lamberto testified to that new arrest,

01:45 - 59.086 which and he failed to testify that he failed to show up for drug tests

01:45 - 03.199 and also failed to show up on the extension of the probation.

01:46 - 06.693 But there was no testimony in the record, which is what I was trying to establish

01:46 - 11.398 that he had failed to appear during the term of his original three year probation.

01:46 - 13.043 That's it.

01:46 - 15.678 So this was and I, as I keep saying,

01:46 - 19.072 this was an illegal sentence because you can't violate somebody for,

01:46 - 22.709 conduct that occurred after the natural expiration.

01:46 - 27.614 Everybody here is focused on the bench warrant in the record that occurred during

01:46 - 32.319 January of 2018 or February of 2018.

01:46 - 34.597 You understand that? What's going on?

01:46 - 36.432 I think I got it.

01:46 - 40.293 I mean, I, I mean, it seems to me that, you know,

01:46 - 44.640 what it ultimately boiled down to was it was a subsequently scheduled.

01:46 - 46.075 Gagner two hearing.

01:46 - 50.504 It focused solely on what happened after the original expiration of probation.

01:46 - 52.081 And that's the problem.

01:46 - 53.916 That's that's exactly what I just said.

01:46 - 56.052 Yeah, that's the right.

01:46 - 59.122 The Commonwealth can't pursue alleged violations that occurred

01:46 - 02.149 after the probationary term expired.

01:47 - 03.260 I'm going to write that.

01:47 - 04.660 So just just

01:47 - 07.687 can I just clear clarify something because I've done a thousand of these

01:47 - 11.191 in the last, which is in response to what Justice Bronson said,

01:47 - 14.694 if a probation officer had walked in the door and said,

01:47 - 18.408 Your Honor, a bench warrant was issued for the defendant, here's

01:47 - 22.602 a certified bench warrant of February 21st, 2018.

01:47 - 24.247 Delaware sent it back to us.

01:47 - 26.916 The defendant failed to appear, failed to report.

01:47 - 29.018 At that point, they could have violated him

01:47 - 32.379 because there was evidence on the record that he had failed to,

01:47 - 34.157 that a bench warrant was issued.

01:47 - 37.184 He had failed to report during the term of his probation.

01:47 - 39.429 You wouldn't be saying, judge, that's not a violation.

01:47 - 40.453 Would you know,

01:47 - 43.266 if it if it happened?

01:47 - 43.867 The answer is no.

01:47 - 46.269 I would not be saying that, Your honor,

01:47 - 49.238 if it happened prior to the X, it happened prior to the expiration.

01:47 - 50.740 And we know we know that.

01:47 - 55.068 So if Officer Lamberto had walked in the door even in 2021 and said,

01:47 - 59.272 here's the bench warrant that was issued on February 1st, 2018,

01:48 - 03.810 six months before the natural expiration, the defendant failed to appear.

01:48 - 07.123 That's a violation, right? That is correct.

01:48 - 09.492 In answer to Justice Bronson's question,

01:48 - 12.929 he's not not within the reach of the court for a violation that occurred

01:48 - 14.497 during the course of his probation.

01:48 - 16.666 Right?

01:48 - 18.968 Yes. He's not.

01:48 - 22.305 You're asking, is he within the reach of the company, asking a simple question.

01:48 - 22.805 This is this.

01:48 - 23.740 This is really simple.

01:48 - 28.101 I don't mean to be frustrated, but if Officer Lamberto had produced proof

01:48 - 31.180 at that at a hearing that he had failed to appear

01:48 - 35.008 during the course of his probation, that's a violation, correct?

01:48 - 37.053 Yes. Thank you.

01:48 - 38.945 Let's leave it at that. I'm sorry. I,

01:48 - 43.392 Mr. Justice Bronson, I don't

01:48 - 46.419 believe that that a.

01:48 - 49.565 Probationer who,

01:48 - 56.205 who absconds, and then is arrested after the expiration

01:48 - 00.400 of the original probationary period is getting away with anything

01:49 - 04.280 once he's arrested, he's going to be subject to violation.

01:49 - 06.549 Well, that's the hearing can happen, right?

01:49 - 10.620 But the the point here, which I think justice McCaffrey is driven

01:49 - 15.558 home with you, is what what what you're saying didn't happen here is

01:49 - 18.585 he was arrested on the bench warrant, no doubt.

01:49 - 22.122 But when it came to actually, the gag on two

01:49 - 26.626 hearing the Commonwealth for some reason, I guess we'll hear soon

01:49 - 30.931 didn't present any evidence of the original

01:49 - 34.100 absconding from Delaware.

01:49 - 35.612 That's correct.

01:49 - 36.979 That's that's what the case is about.

01:49 - 40.574 It's not a it's not a case about whether the Commonwealth can,

01:49 - 44.220 extend a probationary period that's expired.

01:49 - 45.721 Clearly they can't.

01:49 - 49.425 The the question is, the question is, was there a parole violation

01:49 - 51.894 because of what's common in your point is very simple.

01:49 - 52.962 They didn't prove it.

01:49 - 53.630 That's correct.

01:49 - 54.897 Okay. Okay.

01:49 - 56.799 Mister. Mister, I think you have it. Yep.

01:49 - 59.693 Oh, thank you very much. Let's hear the Commonwealth.

01:50 - 02.772 Let's hear from the Commonwealth.

01:50 - 05.799 Miss Kemi.

01:50 - 07.911 Good morning.

01:50 - 10.546 To start as ten members of the bench.

01:50 - 11.714 My name is Rachel Kemi.

01:50 - 14.741 I'm here on behalf of the Commonwealth of Pennsylvania.

01:50 - 17.811 Delaware County District Attorney's Office representing the appellee.

01:50 - 20.923 And I'm going to jump right into, Justice Robson,

01:50 - 24.084 you had started with a question about whether or not

01:50 - 27.887 the Commonwealth was going to be here, arguing that we could extend

01:50 - 32.993 someone's probation when we can, but that's not my argument.

01:50 - 37.206 My argument here is that the date that everyone keeps mentioning,

01:50 - 42.211 this magical run date of January 18th, 2018, you don't contest that.

01:50 - 43.746 That was the date.

01:50 - 47.183 Should defendant have abided by the terms of his probation

01:50 - 48.751 and remain under supervision?

01:50 - 51.454 It absolutely would have expired on that date.

01:50 - 53.880 Well, we keep using this date as though it's

01:50 - 55.926 the end all, be all.

01:50 - 58.294 It's not. The sentence is the end all, be all.

01:50 - 59.029 And that was it.

01:50 - 02.055 The defendant served three years of probation.

01:51 - 04.667 Probation is a supervisory term.

01:51 - 08.795 The supervisory capacity had to be being supervised for that term to count.

01:51 - 12.742 The mechanical run date of this

01:51 - 16.712 July 18th, 2018 is the date the probation puts together.

01:51 - 18.247 Should you abide by all of your rules.

01:51 - 20.416 This is when you'll be done.

01:51 - 22.585 What happened here

01:51 - 25.912 was that the defendant was not on supervision for almost a year,

01:51 - 29.416 and when he was picked up on that warrant

01:51 - 34.930 and did come before a gag on one master for ten for, determination

01:51 - 38.958 of whether there was enough, information to say that he violated probable cause.

01:51 - 40.752 They did. Right. Probable cause. It violated.

01:51 - 44.106 They found that he was released.

01:51 - 44.374 Okay.

01:51 - 46.709 From there, I hope they found probable cause.

01:51 - 50.746 Then he was released, and a magistrate can't extend the terms of probation.

01:51 - 53.149 That's got to be a judge under.

01:51 - 54.350 Okay. Justice McCaffery. Yes.

01:51 - 56.519 So you're going to argue equitable tolling, right?

01:51 - 57.987 Yes. Okay.

01:51 - 59.121 Let me just ask the question.

01:51 - 01.524 I ask your opposing counsel at the outset.

01:52 - 04.627 We are here today to talk about a sentence that was imposed on November.

01:52 - 08.197 Excuse me, April 26th, 2022 for a gag on two hearing.

01:52 - 10.866 It started on November 17th, 2021.

01:52 - 14.770 Yes. At that hearing did Officer Deborah Lombardo,

01:52 - 18.541 the Delaware Delaware County probation Officer, testify or present

01:52 - 22.878 any evidence whatsoever that he had absconded and had failed

01:52 - 26.639 to appear during the term of his probation before it naturally expired?

01:52 - 28.818 Before we even get to the equitable tolling?

01:52 - 32.288 Because to my way of thinking, if there's an illegal sentence,

01:52 - 34.156 we have an obligation to fix that

01:52 - 37.217 illegal sentence before we can even get to the equitable tolling question.

01:52 - 38.394 Right?

01:52 - 39.062 Absolutely.

01:52 - 42.355 So the Deborah Lamberto testify or put any evidence in the record

01:52 - 48.495 at that hearing on the 21st November 17, 2021 or April 26th, 2022,

01:52 - 51.507 that the defendant had absconded, failed to appear

01:52 - 54.534 during the course of his natural three year probationary term.

01:52 - 58.071 My reading of Deborah's testimony was that it was mentioned,

01:52 - 01.150 is there a do we move forward on that allegation? No.

01:53 - 02.752 Then how do you believe

01:53 - 06.513 she testified about the failed drug test and that he failed to appear

01:53 - 10.650 after after the fact, which you can't violate somebody for

01:53 - 12.362 my my

01:53 - 15.388 questions, not my question is an evidentiary one.

01:53 - 17.366 You can't sentence somebody to invite.

01:53 - 18.534 You can't find a violation

01:53 - 21.761 unless you found that they violated while they were on probation.

01:53 - 24.306 Right? Yes.

01:53 - 27.500 So was there any testimony that he violated while on probation,

01:53 - 30.703 or was that testimony about stuff that occurred in 2019,

01:53 - 33.616 2020 and 2021?

01:53 - 36.485 Our argument to that would be that he was all of those things,

01:53 - 40.113 those 19, 20, 21, he was still on probation for.

01:53 - 41.857 Our argument is that it did not.

01:53 - 45.785 I thought you just conceded to justice McCaffery for all of us that you

01:53 - 50.223 the statute doesn't allow you no extended term of probation.

01:53 - 54.670 It doesn't you you seem to want to have it both ways.

01:53 - 58.231 Like he's he absconded so he's not under supervision.

01:53 - 01.277 And yet his violations

01:54 - 04.304 during that time can be used.

01:54 - 06.849 I'm not sure how you can have it both ways.

01:54 - 08.918 Let me clarify just as much.

01:54 - 11.911 When we say that the defendant was on probation,

01:54 - 16.692 we don't mean to say that we're just going to keep extending and extending.

01:54 - 18.494 The defendant still owed that time.

01:54 - 19.995 That's our argument.

01:54 - 21.497 Whether that was the six months

01:54 - 25.024 or applied to some other defendant who absconded for two, three, ten years.

01:54 - 29.839 When you pick back up, we're not asking you to serve more than you agreed.

01:54 - 33.800 We're asking you to just finish out the term Commonwealth in is

01:54 - 36.803 was that evidence introduced

01:54 - 39.882 and part of the record.

01:54 - 42.785 But justice McCaffery was initially indicating

01:54 - 46.312 was all the information that led to the probable cause for the violation.

01:54 - 49.949 Post stated the expiration of his probation.

01:54 - 53.963 Was there any evidence that there had been a bench

01:54 - 56.990 warrant during the pendency of his probation,

01:54 - 59.969 that he absconded in the state of Delaware?

01:54 - 03.830 That's what I'm what he's indicating that the record is absent

01:55 - 06.008 and I'm indicating or I'm questioning.

01:55 - 07.376 I couldn't find it in the record.

01:55 - 12.038 I was asking if, you know, was that introduced as part of the Commonwealth?

01:55 - 14.783 I understand your question just exactly.

01:55 - 17.810 And the answer to that is no, I do not believe

01:55 - 21.991 that at that particular hearing, evidence or testimony

01:55 - 26.386 was put on about the allegations that originally arose from Delaware.

01:55 - 28.898 I do not I, I don't see it in the record either.

01:55 - 31.934 I'm sorry I, I just to follow up on just historian's question.

01:55 - 36.138 So then what is the what is the the legal basis

01:55 - 39.165 that empowers us to validate,

01:55 - 42.869 you see, seeking a revocation

01:55 - 47.140 based on new crimes he committed while he's in Absconder.

01:55 - 51.144 I don't see the authority to that.

01:55 - 53.555 Well, it's not necessarily

01:55 - 56.549 for new crimes that he committed.

01:55 - 00.596 While he was absconding, because some of these crimes also were.

01:56 - 03.565 Once he was picked up on a warrant, he gets a new case in jail.

01:56 - 04.967 He's not necessarily absconding.

01:56 - 09.996 Then my argument is that everything from the time

01:56 - 13.442 the defendant agreed to serve this three year term, until we get to

01:56 - 16.803 this hearing, you know, final, final, final going on years and years later,

01:56 - 21.240 is that all of that time he was on probation.

01:56 - 23.085 But this is not rule 600.

01:56 - 26.588 I mean, there's no authority in statute or rule

01:56 - 30.216 for this kind of equitable extension that you're seeking.

01:56 - 34.387 Where does that authority come from in the statute?

01:56 - 35.131 Well, I don't

01:56 - 38.791 I agree with you that it's not specifically written out in the statute,

01:56 - 41.904 but 9725 says that

01:56 - 45.107 the judge is supposed to prescribe a term of probation.

01:56 - 46.942 Well, it talks about the conditions.

01:56 - 48.877 The court can mess with the conditions, right.

01:56 - 50.312 But it can't extend this.

01:56 - 52.448 This is a sentence or the sentence.

01:56 - 54.149 Yes. Our argument is that it wasn't

01:56 - 58.111 necessarily we're using the word extended maybe two different ways here.

01:56 - 02.982 And that's maybe what is I'm confusing for the court extending it.

01:57 - 08.397 What I mean by that is we're just asking him to serve the term that he agreed to.

01:57 - 11.133 I don't think we extended it past three years.

01:57 - 13.702 You could in under just one more thing on this, if I may.

01:57 - 14.137 Not sure.

01:57 - 18.664 It seems like the logical extent of your argument, counsel, would be that

01:57 - 24.270 if we kept doing this in a scenario of, you know, absconding, to use your term,

01:57 - 27.950 you could easily get to a point where you go

01:57 - 31.811 beyond the statutory maximum, and that would be nonsense, wouldn't it?

01:57 - 34.847 Yes. So what's the difference

01:57 - 36.826 between a

01:57 - 39.852 hypothetical like that and your situation?

01:57 - 41.865 Well,

01:57 - 45.067 the difference and the difference and I hate to, I hate to

01:57 - 49.328 to beat it at horse, but this really is where at least my mind stops with this.

01:57 - 50.506 All right, all right.

01:57 - 54.000 Can't get past that if we use this July date,

01:57 - 57.804 July 2018, and we say, well, probation ended, then,

01:57 - 01.517 well, then he's rewarded for absconding for that

01:58 - 04.586 year, that he wasn't violated for things he did during the term.

01:58 - 07.613 Right? Yes.

01:58 - 09.758 But that's what didn't happen here.

01:58 - 14.196 Nobody proved that there was a bench warrant outstanding.

01:58 - 17.866 And then he had to be rested during the period of probation.

01:58 - 20.002 That I mean, it would have been easy.

01:58 - 22.371 It would have been easy for the Commonwealth.

01:58 - 24.373 And I hope that in a nutshell, yes,

01:58 - 27.733 it's the Commonwealth's burden to prove that there have been an open thing

01:58 - 32.181 and come on, record is conspicuously absent that such existed.

01:58 - 33.482 The record only indicates

01:58 - 37.910 of all the potential violations that occurred after the expiration.

01:58 - 41.090 And someone introduced that bench warrant, we wouldn't be here.

01:58 - 43.875 Well, actually, they couldn't introduce the bench warrant, could they?

01:58 - 48.297 Because a bench warrant was declared by the Superior Court to be void AB an issue.

01:58 - 49.531 That's the that's the key.

01:58 - 53.535 I'd forgotten in this particular case, the Commonwealth relied originally on the

01:58 - 57.063 on the bench warrant from Delaware State being issued in Delaware County.

01:58 - 59.041 That was appealed to the Superior Court.

01:58 - 02.478 And Superior Court cleared that bench warrant void ab initio.

01:59 - 03.479 And now I'm reading.

01:59 - 08.174 If you just bear with me for a second, is it just my memory?

01:59 - 11.611 The September 13th, 2022 opinion from Judge Pagano.

01:59 - 16.692 This court then held a gag nine two hearing on November 17th, 2021, wherein

01:59 - 17.860 the Commonwealth,

01:59 - 21.363 as his words, completely abandoned reliance upon any alleged Delaware

01:59 - 25.400 state violations and went to great lengths in order to exclude any information

01:59 - 29.438 regarding violations that occurred prior to July 19th, 2018.

01:59 - 30.539 Maximum date.

01:59 - 33.575 Rather, the Commonwealth offered allegations of violations

01:59 - 36.602 that occurred on or after March 22nd, 2019,

01:59 - 39.715 which was eight months and four days after the scheduled supervision.

01:59 - 40.739 Maximum date.

01:59 - 43.986 That was the basis of Judge Bigelow's decision.

01:59 - 45.687 Is there anything wrong about that?

01:59 - 48.390 Because I asked a question at the outset about the evidence.

01:59 - 51.927 That evidence came right from the record and was also contained in Judge Bigelow's

01:59 - 56.155 1925 opinion that the Commonwealth didn't produce any evidence,

01:59 - 59.759 that of a violation that occurred before the natural expiration.

02:00 - 03.438 And the basis of the equitable tolling argument was the bench warrant

02:00 - 06.465 that was declared void had been issued by the Superior Court.

02:00 - 08.510 I see where your argument goes.

02:00 - 12.838 Justice McCaffery I, I can't tell this court why

02:00 - 16.552 the Commonwealth didn't proceed on those Delaware charges.

02:00 - 17.986 I don't know.

02:00 - 21.156 My my guess is that because we had all of these

02:00 - 25.651 other violations, we decided to move forward with that.

02:00 - 28.230 Do I think that there is a bit of a difference here?

02:00 - 31.991 Had we argued all of the violations, including that one?

02:00 - 34.269 Yes, it's entirely possible,

02:00 - 37.163 but I do think that that doesn't necessarily negate the fact,

02:00 - 39.008 or at least

02:00 - 42.001 I would ask or urged the court to take into consideration

02:00 - 46.172 that if we let that go, the end result of that

02:00 - 50.319 is that defendant never really served his three years.

02:00 - 52.654 That's the problem.

02:00 - 56.482 They obviously know how to put tolling provisions in statute,

02:00 - 57.593 and they've done it.

02:00 - 02.121 As you know, counsel points out, they did it in 55.54.

02:01 - 05.925 I mean, it's an argument you're making for policy

02:01 - 11.230 that belongs in the legislature's bailiwick, not not in ours.

02:01 - 13.442 We we don't have this power to do that,

02:01 - 15.877 notwithstanding what Superior Court did in Ortega.

02:01 - 19.982 We don't we don't have the authority to sort of invent, tolling doctrines.

02:01 - 23.009 Do we, in this criminal law context?

02:01 - 25.621 No, I see where you're going with that justice work.

02:01 - 28.648 And I would say, though, and again, it's

02:01 - 31.693 as you mentioned, Ortega is by no means controlling on this court.

02:01 - 33.662 It is superior court opinion.

02:01 - 37.733 But Ortega and actually 20 recently in 2024

02:01 - 39.635 and I'm going to get the name wrong.

02:01 - 43.739 Greg Acker Gignac the Superior Court again mentions

02:01 - 47.533 that Absconder can't be rewarded at the time tolls.

02:01 - 52.748 So I just I would throw it out there as instructive or, or good argument

02:01 - 57.119 to follow is that our lower courts have, in fact, sort of addressed the issue.

02:01 - 58.854 And I would just urge that I don't know why.

02:01 - 01.423 Equitable I don't know why equitable tolling is the answer.

02:02 - 04.660 I mean, you had said something earlier that I thought was pretty interesting.

02:02 - 08.321 You had something about he owed the time he did.

02:02 - 12.825 What evidence did you produce at the gag on two earing that he owed the time,

02:02 - 16.605 that he hadn't fulfilled his

02:02 - 19.632 three years of probation?

02:02 - 21.210 Well, I would argue,

02:02 - 24.212 is Justice Lambert a testimony to the court?

02:02 - 26.348 Whose justice or Justice Lamberto.

02:02 - 28.850 I've just elevated her to? I'm sure she's excited.

02:02 - 30.218 She's excited.

02:02 - 31.853 I will tell her that later on.

02:02 - 33.755 The parole officer again, I can't

02:02 - 36.758 I can't tell you that she handed up this warrant.

02:02 - 38.627 And you can't. You you can tell you.

02:02 - 41.296 Well, you can tell us what she did. Did she fruit.

02:02 - 42.464 She did, did she?

02:02 - 44.399 Well, you can tell us what she did, counsel.

02:02 - 47.135 What did she prove?

02:02 - 49.604 He owed time.

02:02 - 53.008 My argument would be is how with her testimony to the court,

02:02 - 56.836 which was she explained to the court how everything got to where we got to.

02:02 - 58.680 I mean, she did talk about what happened

02:02 - 01.616 in Delaware, and that supervision was transferred to Delaware County

02:03 - 04.319 and that he had they issued the bench warrant they couldn't find him.

02:03 - 06.054 For she did talk about all of that.

02:03 - 10.492 So she testified that he was absconded for a period of time

02:03 - 12.160 from his term of probation.

02:03 - 13.495 Yes. And I used the word.

02:03 - 16.489 Well, why did Judge Pagano say that they that you abandoned it?

02:03 - 19.434 I don't know, I don't know.

02:03 - 21.436 And we didn't agree with Judge Pagano.

02:03 - 25.998 Even when he then wrote his opinion, he originally found her in violation,

02:03 - 29.368 wrote his 1925 opinion and changed his mind.

02:03 - 31.680 So you're saying you're telling us today.

02:03 - 34.707 And I'm sure justice McCaffery has looked at the record very carefully.

02:03 - 38.220 The you're saying there is evidence

02:03 - 40.956 of his violation of the terms of his probation

02:03 - 43.949 in Delaware?

02:03 - 46.228 Yes, arguably, I would say yes.

02:03 - 46.529 What do you mean?

02:03 - 49.598 Arguably there is evidence or there isn't evidence.

02:03 - 52.591 Is there evidence that he violated the terms of her probation in Delaware?

02:03 - 55.804 Okay, I do see what you're seeing. Justice.

02:03 - 58.831 I do see what you're saying this is about in her testimony,

02:03 - 02.668 did not talk about the underlying violations in Delaware.

02:04 - 03.178 Okay?

02:04 - 03.780 What she did

02:04 - 05.313 talk about was that

02:04 - 08.316 they had received information that he was allegedly violating in Delaware.

02:04 - 09.818 Right? Yeah.

02:04 - 12.487 They issued they asked Delaware County to issue the warrant.

02:04 - 14.289 Right. Kind of did. Right.

02:04 - 17.459 We picked him up because we couldn't find him for a year.

02:04 - 18.483 And sometime right.

02:04 - 21.296 I that is my that's saying

02:04 - 24.323 that's proof that he owed time.

02:04 - 27.602 Yes. That time that he was absconded. Yes.

02:04 - 29.671 I would say that that's proof that he owed time. Yes.

02:04 - 34.333 So he wasn't so under all that time that you want carved out.

02:04 - 37.446 He wasn't under supervision.

02:04 - 39.281 Yes, but is that right?

02:04 - 43.042 He was not under supervision for purposes of your legal analysis?

02:04 - 46.712 Yes. Just as much for purposes of our for purposes of our analysis,

02:04 - 50.258 the only time that we're doing anything, any criminal acts

02:04 - 55.621 he committed during that period, then, he would not be susceptible.

02:04 - 59.234 To revocation based on those right?

02:04 - 02.261 He couldn't be since you weren't supervising.

02:05 - 06.142 Any. Actually, I'm sorry.

02:05 - 09.401 I just mean, I understand you'd like to have it both ways there.

02:05 - 13.506 Either he was under the supervision or not.

02:05 - 18.487 Well, he wasn't under supervision because he wasn't doing

02:05 - 22.081 the things that one is supposed to do when under supervision.

02:05 - 25.227 Well, either he was or he wasn't. So.

02:05 - 26.228 Because if he.

02:05 - 29.221 If he wasn't, then the provisions are inoperative.

02:05 - 37.506 I guess, yeah.

02:05 - 41.076 See, he can't be under supervision for some purposes

02:05 - 44.069 and not under for others.

02:05 - 47.476 Well, I would argue he was supposed to be under supervision during that time.

02:05 - 49.651 I mean, I'm going to take one more shot at this

02:05 - 52.678 because I again, I never did this before.

02:05 - 56.391 Did some judge

02:05 - 59.728 somewhere adjudicate him as an absconder

02:05 - 02.755 from his original probationary term?

02:06 - 07.993 No, I think let me just make sure I have the majority.

02:06 - 10.305 Is there a hearing determine?

02:06 - 13.332 Well, it was a hearing to know. Did a judge.

02:06 - 16.602 Yes. Did any court adjudicate him

02:06 - 21.483 to have been an absconder during his three year

02:06 - 25.444 period running from the date it began to this July magical date?

02:06 - 29.848 Has anybody ever adjudicated him to be an absconder during that period?

02:06 - 33.628 I would argue the only time that that.

02:06 - 35.230 But I don't want you to argue. I just want to judge.

02:06 - 37.566 Tell me. I want you to tell me. If they did, did it?

02:06 - 41.336 Can you point me to a judicial order or an opinion where something

02:06 - 44.339 where some court adjudicated him to have absconded during

02:06 - 47.366 that three year, what you call the magical period?

02:06 - 50.278 No. Not necessarily. Okay. No.

02:06 - 54.306 And if there are, Madam Chief Justice, I would be happy to answer anyone

02:06 - 55.484 anyone's questions.

02:06 - 58.086 If not, I will sum up, please.

02:06 - 58.688 Sure.

02:06 - 02.281 The common lost argument is not to say that we're asking

02:07 - 05.327 anyone to do anything that they didn't already agreed to.

02:07 - 08.354 The defendant agreed to serve three years of probation.

02:07 - 11.299 My argument is that all three years of that

02:07 - 13.525 have to be under the probationary supervision.

02:07 - 18.030 I understand appellant's argument.

02:07 - 20.842 I just caution that

02:07 - 23.869 I think worked in order to get to that.

02:07 - 26.748 What it is saying is that

02:07 - 29.742 there is some merit to absconding

02:07 - 32.787 and not finishing out your term just because of this mechanical.

02:07 - 35.814 And I just respond to that real quickly because you said that before.

02:07 - 41.120 Okay, maybe the lesson is not on us,

02:07 - 46.568 maybe the lesson is on the Commonwealth, and that if you want to make the argument

02:07 - 49.537 that, probation or was not under supervision

02:07 - 52.307 during a period of time, you don't want that time to count.

02:07 - 56.111 You have to prove that, in fact, they were not under

02:07 - 59.138 supervision during the time that you're claiming to carve out.

02:07 - 01.807 Maybe that's the lesson, not what we do.

02:08 - 04.253 And that

02:08 - 07.279 that is certainly within this court's purview to decide. Yes.

02:08 - 10.091 But, I respectfully

02:08 - 13.118 would just ask that you affirm the lower court's decision.

02:08 - 15.163 And on that, I will rest.

02:08 - 17.632 And congratulations to everyone who has retained you.

02:08 - 20.659 Thank you, Mr..

02:08 - 24.463 Thank you both.

02:08 - 28.109 The next case is, Peter, a project versus

02:08 - 31.136 the Unemployment Compensation Board of Review.

02:08 - 35.274 Peter worked as a salesman for an eye care company

02:08 - 38.553 and lost his job through no fault of his own.

02:08 - 41.556 He then applied for unemployment benefits

02:08 - 44.426 during the period of time he was searching for new employment.

02:08 - 48.487 He also explored the possibility of opening his own business,

02:08 - 51.690 which would provide eye care services online.

02:08 - 54.636 He truthfully indicated on his unemployment

02:08 - 57.663 application that he was exploring this possibility

02:08 - 01.633 and spending approximately 2 to 10 hours per week on the effort,

02:09 - 06.081 after he so indicated he was disqualified

02:09 - 09.608 from unemployment benefits on the basis of being self-employed.

02:09 - 12.854 The Unemployment Compensation Board of Review

02:09 - 17.316 affirmed his disqualification from benefits, finding that he had taken

02:09 - 21.420 positive steps towards starting a new business.

02:09 - 26.024 Mr. Pratt appealed the decision of the board to the Commonwealth Court,

02:09 - 29.895 which is the state's first level appellate court for these types of matters.

02:09 - 33.007 The Commonwealth Court agreed with the board

02:09 - 36.034 and upheld the disqualification from benefits.

02:09 - 40.014 The Supreme Court took the appeal to consider whether the test

02:09 - 43.818 used by the board in the Commonwealth Court, namely whether Mr.

02:09 - 48.180 Pract had taken positive steps towards self-employment, was the correct test

02:09 - 51.717 be used to determine whether or not he qualified for benefits?

02:09 - 57.065 The positive step test requires disqualification when a claimant's

02:09 - 01.527 actions show he had intentions of starting a new business or trade.

02:10 - 04.072 That test was

02:10 - 07.075 created by prior judicial decisions.

02:10 - 10.178 In a similar case recently, Lohmann versus

02:10 - 13.305 the Unemployment Compensation Board of Review.

02:10 - 18.944 The Supreme Court threw out that test as it applied to people

02:10 - 24.883 seeking employment with third parties as independent contractors.

02:10 - 27.896 Specifically, in that case, it was Uber.

02:10 - 30.632 The court in Lowman held that the test should be whether

02:10 - 33.892 under a specific section of the Unemployment Compensation Act.

02:10 - 36.871 The claimant is customarily engaged

02:10 - 39.898 in an independently established business.

02:10 - 43.611 The question in this case is which standard should apply

02:10 - 47.115 when there is no third party, such as Uber involved,

02:10 - 51.243 and the claimant reports only efforts at establishing their own business?

02:10 - 55.290 Interestingly, the Unemployment Compensation.

02:10 - 58.459 Board has changed its position from what it is asserted

02:10 - 02.630 in earlier stages of the litigation and now agrees with Mr.

02:11 - 07.326 Pratt that the positive steps test should be thrown out

02:11 - 11.897 and that the standards set forth in the Unemployment Compensation Act

02:11 - 13.332 is what should be applied.

02:11 - 14.977 This should be

02:11 - 19.404 an interesting argument, as both sides are in agreement on the central issue,

02:11 - 22.483 which doesn't often happen before the court.

02:11 - 25.510 Let's listen.

02:11 - 26.388 Morning.

02:11 - 28.690 It's still morning.

02:11 - 30.258 And this appeal by allowance.

02:11 - 34.996 A claimant lost his employment with an optical company and thereafter

02:11 - 40.459 created an online optical consultation and business, and designed a website,

02:11 - 44.730 but did not perform any services for compensation.

02:11 - 49.611 When the claimant later sought unemployment compensation benefits,

02:11 - 54.983 he was deemed ineligible on the grounds that he had taken positive steps toward

02:11 - 59.354 establishing his own business, rendering him self-employed

02:11 - 02.490 and thus ineligible for benefits under the Unemployment.

02:12 - 05.584 Compensation Act on appeal.

02:12 - 09.030 Based on this court's 2020 decision

02:12 - 12.991 in Lohmann versus Unemployment Compensation Review Board,

02:12 - 16.738 the claimant contended that the standard for determining

02:12 - 21.934 whether a claim in itself employed is not the positive steps test

02:12 - 27.649 employed by the lower Tribunal, but rather the test set forth in the act.

02:12 - 32.987 In section 4L2B, which specifies control

02:12 - 36.848 and independence considerations for self-employment.

02:12 - 41.896 The claimant argued that the statutory test was not satisfied,

02:12 - 45.424 as he had not performed any services for wages.

02:12 - 48.694 In connection to his consultation business.

02:12 - 52.874 In a divided decision, the Commonwealth Court rejected

02:12 - 57.602 the claimant's contention and upheld the positive step standard.

02:12 - 02.050 We granted allowance of appeal to determine the propriety

02:13 - 05.177 of that court's ruling. Please receive.

02:13 - 09.090 Good morning, Chief Justice.

02:13 - 11.993 Members of the court Julius Simon Michelle from

02:13 - 15.253 Philadelphia legal assistance on behalf of Howard Peter Pract.

02:13 - 17.899 And if you're a pilot, I apologize.

02:13 - 19.300 I may need to take a few breaks.

02:13 - 23.161 I was with two sick toddlers all week trying to lose my voice a little bit.

02:13 - 24.572 Do you have a glass of water there?

02:13 - 26.674 I have a water bottle. Okay.

02:13 - 29.510 We are here today to address

02:13 - 34.248 whether the Commonwealth Court's judicially created positive steps.

02:13 - 38.076 Test should survive in light of this court's recent precedent.

02:13 - 41.990 Both appellant and the government now agree.

02:13 - 45.017 The answer to that question is no.

02:13 - 48.162 In Lohmann, this court held

02:13 - 52.290 that the General Assembly had intended for the two prong test

02:13 - 56.528 from section four to be the exclusive and definitive test

02:13 - 00.832 for evaluating eligibility under section 428 of the law.

02:14 - 06.271 Lohmann involved a worker for a third party, in that case, Uber

02:14 - 09.283 the court because it was not before.

02:14 - 13.512 It did not explicitly rule on whether the positive match test

02:14 - 18.016 could continue to be used as part of the section four test.

02:14 - 21.253 In the standalone context.

02:14 - 25.800 As the president judge noted in her dissent below, the Commonwealth Court

02:14 - 29.704 majority in essence, took that judicial restraint as tacit

02:14 - 34.399 approval of the positive steps test and continue to apply it in this case.

02:14 - 38.770 We are now back before this court to squarely address

02:14 - 42.474 the question of the positive step test in the standalone context.

02:14 - 47.879 The court should permanently abandon that test today for three reasons.

02:14 - 53.327 First, the test directly conflicts with this court's interpretation

02:14 - 56.354 of the independence prong primarily that,

02:14 - 59.658 whether someone is customarily engaged,

02:15 - 03.161 as this court, interpreted in,

02:15 - 06.274 a special touch and in Lowman.

02:15 - 12.013 Second, the positive steps test contravenes the plain language of section

02:15 - 16.708 four, which requires an established business in the past tense,

02:15 - 21.179 not simply a step towards establishing a business.

02:15 - 26.360 And finally, the test undermines the remedial purpose of the unemployment

02:15 - 30.865 compensation law by punishing claimants who try to explore a path

02:15 - 35.703 to financial independence, and also causes differing treatment of claimants.

02:15 - 36.727 Under the law.

02:15 - 42.643 You have to receive remuneration or,

02:15 - 46.104 is it enough to just hold yourself out

02:15 - 49.608 as performing services for remuneration?

02:15 - 54.779 It's not enough to hold yourself out as performing services for generation.

02:15 - 00.261 The general idea here is that in addition to the two prong analysis,

02:16 - 03.955 there's a prerequisite in section four that you must first performed,

02:16 - 07.392 services for wages or remuneration.

02:16 - 10.996 So you have to perform the services for that

02:16 - 15.233 were renumeration in this case, were there any wages or anything for.

02:16 - 17.345 Renumeration.

02:16 - 19.780 No, he had no clients performed. Absolutely.

02:16 - 22.807 So you never get the two prong analysis?

02:16 - 23.152 Yeah.

02:16 - 26.187 In this case, the argument would be you don't even go, you know, you don't

02:16 - 30.057 pass, go, and get to the two prong, test.

02:16 - 32.827 So, counselor, can I ask a question about that?

02:16 - 35.530 How do we square that with the wages definition,

02:16 - 39.191 with the reality of what the act is supposed to do?

02:16 - 42.837 In this particular case, you've got an optometry optician. Yes.

02:16 - 45.106 Who basically is collecting unemployment.

02:16 - 46.607 Unemployment compensation?

02:16 - 49.577 If I'm an optician, and I go out and I'm collecting unemployment compensation

02:16 - 53.648 and I form an LLC and I hire somebody else to perform services

02:16 - 57.576 for me, like in this case, I set up a website, I set up an LLC.

02:16 - 59.120 They're performing the services.

02:16 - 02.147 That person, my employee is getting paid.

02:17 - 04.749 If that person is getting paid and I'm making money,

02:17 - 07.762 that would go for the purpose.

02:17 - 09.263 That would count because not a wage.

02:17 - 11.332 That's a that's that could be a return on investment.

02:17 - 13.067 It could be any number of things a wage.

02:17 - 14.569 My my way of thinking, it's not really

02:17 - 18.129 defined under the act would be something along the lines of a W-2 employee.

02:17 - 21.433 If I'm the sole shareholder of a company and I'm getting return on my,

02:17 - 26.271 my investment, through passive investments or through active investments,

02:17 - 28.317 I'm still getting money.

02:17 - 32.119 I mean, theoretically, I could be making 4 or 5, six, seven, ten times

02:17 - 35.780 the amount I made as wages in my prior employment

02:17 - 39.117 would not defeat the entire purpose of the Unemployment Compensation Act.

02:17 - 42.697 Well, that's why in this case, when you're looking at remuneration,

02:17 - 46.200 you're looking at a lot of the different definitions in section four, right?

02:17 - 49.704 Which all point to, I think, a broader

02:17 - 52.907 acceptance of what type of income counts here.

02:17 - 53.174 Right.

02:17 - 53.475 And if you

02:17 - 57.211 actually that's my question to you, where do we draw that line in this point?

02:17 - 01.106 I think a business that is actively performing services

02:18 - 06.011 for pay, right, for any sort of pay or compensation, that's not what the action.

02:18 - 07.221 That's not what you're advocating.

02:18 - 09.757 You're saying that the employee, Mr.

02:18 - 11.959 Pratt, is not performing the services.

02:18 - 13.894 No you're not actually, that's not what we're saying.

02:18 - 15.796 Because at this in this situation,

02:18 - 19.667 what they're asking is whether he has an independently established business.

02:18 - 23.471 It's whether that business has performed services.

02:18 - 25.373 So if the business is performing services,

02:18 - 28.400 even though he's not receiving wages from that business,

02:18 - 31.312 well, this this business did not provide any services.

02:18 - 36.017 I'm just asking a hypothetical if if, if the business had clients,

02:18 - 40.845 had performed services and had, therefore received pay

02:18 - 44.582 or any sort of compensation for those services, that would be enough

02:18 - 50.155 to meet that prerequisite and then turn to the the two prong analysis.

02:18 - 54.426 It wouldn't be enough to necessarily say that individual is self-employed,

02:18 - 56.572 but it would certainly meet that initial prerequisite

02:18 - 59.940 in this case.

02:18 - 01.208 Now, for Mr.

02:19 - 03.711 Pratt, he did not do any of that.

02:19 - 06.547 At most he was developing a website.

02:19 - 10.675 There were no clients there were no services performed.

02:19 - 14.322 And in a special touch.

02:19 - 17.525 And then again in Loman, this court made clear that in order

02:19 - 22.420 to be customarily engaged in an independently established business,

02:19 - 26.834 there must be, someone who is actively holding themselves out

02:19 - 30.462 as providing services or who is actually providing services.

02:19 - 35.967 It's not about what someone could do, it is about the facts of what they have done.

02:19 - 40.472 And in fact, in Lohmann, this court said that an occasional offer of work,

02:19 - 42.750 an acceptance of work, is not enough.

02:19 - 46.911 So certainly no offer of work and no provision of services

02:19 - 51.359 can be enough under that reasoning, which is why not only Mr.

02:19 - 55.253 Pratt should be eligible, but also why the positive steps test

02:19 - 59.324 can't continue, because the entire premise of that test

02:19 - 03.637 is that you can take steps towards establishing a business,

02:20 - 07.999 but does not actually require, like this court has in its cases,

02:20 - 11.936 the actual provision of services that somebody is habitual, really

02:20 - 15.073 providing services, which is how this court,

02:20 - 19.210 defined customarily engaged in its prior cases.

02:20 - 24.182 I think part of the I think part of the confusion in this case is the,

02:20 - 27.928 income tax return that was filed,

02:20 - 32.157 or scheduled to it that indicated the payment of wages.

02:20 - 35.427 We don't actually know what that is.

02:20 - 39.006 There is no, evidence or testimony on the record,

02:20 - 42.243 that describes anything that happened in that schedule.

02:20 - 43.477 See,

02:20 - 48.149 what the claimant did testify to is that he was actively developing a website.

02:20 - 51.519 And so it's so he could have paid someone to set up the website.

02:20 - 54.422 Yeah. Paid his wife. He set up the website? Yes.

02:20 - 57.425 And it's

02:20 - 01.486 not unusual for individuals to expend resources as part,

02:21 - 04.465 of, of this process

02:21 - 08.092 and that I know that that concerned the Commonwealth Court below.

02:21 - 10.337 Right. And I understand that concern.

02:21 - 13.040 But I would put forth to you

02:21 - 16.668 that it's not unusual for jobless workers

02:21 - 22.607 to spend resources on bettering themselves during a period of unemployment.

02:21 - 25.252 Right. Someone could spend that money on a training course.

02:21 - 29.447 Someone could spend that amount of money on buying a better wardrobe.

02:21 - 32.650 Someone could spend that amount of money to invest in a car.

02:21 - 35.162 Getting a really strong license.

02:21 - 38.356 Yes, in anticipation of

02:21 - 42.303 engaging in a business that never goes off the ground. Yes.

02:21 - 46.998 Or in anticipation of making themselves a better candidate for a better job.

02:21 - 47.809 Right.

02:21 - 51.402 And as, as, the the president judge said below

02:21 - 54.915 from a policy perspective is not what we want, right?

02:21 - 56.016 Why are we punishing someone

02:21 - 59.143 for spending their money on that as opposed to taking a vacation to Greece?

02:21 - 03.090 And so while I understand the concerning aspect of the fact

02:22 - 06.117 that somebody reported a loss, I don't think that takes this,

02:22 - 09.621 this, claimant, this, this jobless worker

02:22 - 13.024 out of the realm of being connected to the active labor market

02:22 - 17.304 and being eligible for benefits that he qualified for

02:22 - 21.208 because he lost a job through no fault of his own and turned him instead

02:22 - 27.038 into this experience business person who is now in sole control of his feet.

02:22 - 31.042 And whether he has any counsel,

02:22 - 32.420 during

02:22 - 37.057 this period of time that he is setting up his independent

02:22 - 40.418 business, is he also seeking employment?

02:22 - 44.632 Because that's a requirement for you to be continuing

02:22 - 47.701 to get unemployment, checking in with, services and things like that.

02:22 - 50.070 So I'm assuming he's complying with that as well?

02:22 - 52.406 Absolutely not. Removed himself in the labor market?

02:22 - 53.407 Not at all. Absolutely.

02:22 - 56.010 He testified that he was actively looking for work.

02:22 - 59.037 He wanted full time W-2 employment.

02:22 - 02.249 And he was complying with the work search, requirements.

02:23 - 04.818 And to your honors point,

02:23 - 07.388 there are other protections in the unemployment law

02:23 - 11.592 to make sure that somebody has not just removed themselves from the labor market

02:23 - 16.020 to begin preparing a business, working on that business, and kind of ignoring,

02:23 - 20.358 the, the job market from which they, which they came.

02:23 - 23.470 I think, the government pointed out as well

02:23 - 28.709 that, section 401 D1 able and available, provides, another safety

02:23 - 32.170 net there as, as do the work search requirements under the law.

02:23 - 32.414 Right.

02:23 - 37.609 So this this section alone does not have to, kind of address

02:23 - 41.346 the question of whether that person is still connected to the labor market.

02:23 - 46.651 The one of the things that has not really been,

02:23 - 51.198 evaluated as much before this court and, and do not get evaluated

02:23 - 56.570 by the Commonwealth court majority, is the fact that there is a word

02:23 - 00.531 in the statute whose plain language, I think just

02:24 - 06.146 straight says cannot be squared with the positive steps test.

02:24 - 10.174 And that is the word established which is used in the past tense.

02:24 - 13.878 So just based on that alone,

02:24 - 16.890 taking a step towards

02:24 - 19.917 establishing a business with an entrepreneurial intent.

02:24 - 26.224 Yes. It cannot, cannot, survive,

02:24 - 29.236 the statutory analysis because we have to give common

02:24 - 34.032 and approved usage, attractive terms, their common and approved usage.

02:24 - 38.979 The Cambridge Dictionary defines established as accepted or respected

02:24 - 42.073 because of having existed for a long period of time.

02:24 - 46.077 And so we've done a lot of interpretation

02:24 - 50.548 of, section four over the last two decades.

02:24 - 55.653 Established is not, a word that has come before the court to look at.

02:24 - 59.733 But I think a simple look at that shows that the positive

02:24 - 01.292 steps test cannot remain.

02:25 - 04.505 Finally,

02:25 - 07.799 this test undermines the remedial purpose of the law.

02:25 - 11.011 This court is no stranger to the fact that the unemployment

02:25 - 14.105 compensation, a compensation law, is remedial in nature.

02:25 - 18.619 It's intended to provide benefits to individuals who have lost their job

02:25 - 22.256 through no fault of their own, and that this qualification

02:25 - 27.452 provisions should be narrowly construed so that a claimant is only denied

02:25 - 31.155 by language that unequivocally exclude.

02:25 - 34.401 That's right. Unequivocally, I apologize.

02:25 - 38.639 I claim it must not be denied compensation unless he is unequivocally excluded

02:25 - 41.666 by the plain language of these provisions.

02:25 - 45.970 This individual was not,

02:25 - 50.842 was not excluded by the plain language of these provisions.

02:25 - 54.688 And the positive steps test, unfortunately, really serves now

02:25 - 57.791 to just expand this disqualification provision.

02:25 - 00.752 And I think it's time for the court to take a step back from that.

02:26 - 05.199 We want individuals to get back to work.

02:26 - 07.067 That is the public policy of the Commonwealth.

02:26 - 10.804 That is the point of the law, is to provide benefits

02:26 - 13.831 while people reengage a variety of policy.

02:26 - 17.745 You know, I was I would have to

02:26 - 20.772 I would have to plead, no contest.

02:26 - 24.184 I can't say that I followed the different in the earlier argument.

02:26 - 25.819 Sorry, not my area.

02:26 - 29.857 But I think we can say that

02:26 - 32.860 at least there is a public policy here.

02:26 - 34.461 And that is to get people back to work.

02:26 - 38.156 And as this court recognized in Lowman,

02:26 - 41.335 this type of work

02:26 - 44.362 where people are kind of more able to get access

02:26 - 48.866 to different forms of work to earn some sort of compensation,

02:26 - 52.713 especially while they're waiting for benefits, while they're looking for a job.

02:26 - 56.007 It's just something we're going to encounter more now in this economy.

02:26 - 01.012 And it's important that we consider that in how we evaluate these individuals.

02:27 - 03.924 Our client and Mr.

02:27 - 06.093 Pract,

02:27 - 08.862 wants to show that they are trying,

02:27 - 14.101 that they are making an effort, to engage in the economy, to better themselves

02:27 - 18.772 and to better their community and what the positive steps tested.

02:27 - 21.999 And unfortunately, what the Commonwealth Court did in this case is punished.

02:27 - 23.911 Mr.. Perfect for you.

02:27 - 25.879 It's a shame it sounds so positive.

02:27 - 28.215 The positive steps,

02:27 - 28.917 but it does.

02:27 - 32.977 And actually, it was originally kind of used as a way to protect people.

02:27 - 33.555 Right.

02:27 - 36.390 But it's now kind of spun in a different direction.

02:27 - 38.058 Okay. We understand your argument.

02:27 - 39.927 Are there any other questions?

02:27 - 41.395 Okay. Thank you very much.

02:27 - 43.997 Miss Simon Michaud.

02:27 - 46.991 Mr. Anderson.

02:27 - 52.930 This may be the easiest case we have all week.

02:27 - 55.609 And you two actually agree, right?

02:27 - 56.610 That that's correct.

02:27 - 57.611 And that's nice.

02:27 - 00.314 That's of the most best neck wear. Yes.

02:28 - 00.949 Very nice.

02:28 - 03.908 Thank you. Very nice. My wife made this, nice.

02:28 - 07.221 She regularly employed in the business. She.

02:28 - 12.626 Yeah, she does an occasional offer of work to make just for one client.

02:28 - 15.829 And that's me. Nice for that. For what?

02:28 - 18.498 You received? No. Renumeration.

02:28 - 21.368 She's a physical therapist, so this would be a sideline business.

02:28 - 23.871 Oh, okay.

02:28 - 25.172 Yeah. Thank you.

02:28 - 26.907 Good morning.

02:28 - 29.509 Madam Chief Justice, may it please the court?

02:28 - 31.245 My name is Caleb Curtis Anderson.

02:28 - 33.513 I represent the unemployment compensation board.

02:28 - 35.115 A review of with me is,

02:28 - 38.776 the Department of Labor and Industries chief counsel, Benjamin Holt.

02:28 - 40.487 With me as well.

02:28 - 43.156 And I pull the microphone a little closer.

02:28 - 45.559 Certainly, Your Honor.

02:28 - 49.263 As you as you pointed out, Madam Chief Justice,

02:28 - 53.267 this is a case where the board obviously is now taking a position

02:28 - 56.870 that is now in alignment with with the appellant in this case.

02:28 - 01.699 So, I don't want to unnecessarily belabor the points that, my.

02:29 - 04.878 Only if you want to clarify what you you know, expect

02:29 - 07.905 the standard to be or what you're urging us to adopt.

02:29 - 08.939 Yeah.

02:29 - 09.951 Certainly, Your Honor.

02:29 - 14.578 And really, the only thing I would add to that is just that,

02:29 - 19.593 you know, in removing positive

02:29 - 22.787 steps from the standalone business context,

02:29 - 27.768 the board doesn't believe this is a sea change in in how the court

02:29 - 33.440 would interpret for our 2 or 4 XL to be, as was pointed out in Loman,

02:29 - 38.069 this court said that it simply wasn't compatible in the third party context.

02:29 - 42.916 And although there was the footnote suggesting, well, we'll leave

02:29 - 46.186 that open for another day, what to do on the standalone business context.

02:29 - 50.281 Obviously, that case has now presented itself in the form of this case.

02:29 - 51.825 And there,

02:29 - 56.630 as as we point out in our brief, there's there's really no reason to treat

02:29 - 59.833 standalone business entities differently under the law

02:29 - 03.694 than, a situation where you're looking at a claimant and a third party,

02:30 - 06.931 putative employer and,

02:30 - 12.079 additionally, I although I recognize that although the board recognizes that,

02:30 - 17.942 positive steps has certainly been used by Commonwealth court for several decades

02:30 - 22.990 in analyzing for or to h a common theme

02:30 - 28.095 in all of those cases really seems to be that there really isn't a dispute.

02:30 - 31.999 If you look at most of those cases that the individuals applying for benefits

02:30 - 36.603 ultimately did become self-employed, would have become disqualified for benefits.

02:30 - 38.705 It's really more a matter of timing.

02:30 - 43.977 For example, in McCleary versus CBR case from 1974,

02:30 - 50.274 the claimant agreed to build houses in the Kirk case, which was from 1981.

02:30 - 52.285 They created a landscaping business.

02:30 - 55.780 And sort of a common theme in all of them is there's language

02:30 - 00.618 tucked into all of those cases where the, where the Commonwealth Court said,

02:31 - 02.063 look, the

02:31 - 05.532 claimant agrees that once they started performing work, once they started

02:31 - 08.869 building a house, once they started servicing an air conditioner

02:31 - 12.329 unit, whatever the case may be, they would have been disqualified at that

02:31 - 16.576 at that point, however, using positive steps

02:31 - 20.371 then served to disqualify them earlier when they first, you know,

02:31 - 24.642 formed a corporation or, you know, took out a loan or something like that.

02:31 - 26.053 And really,

02:31 - 29.513 all we're asking, all the board is asking this court to do is to say that,

02:31 - 33.894 you know, those steps are certainly things that would need to be done

02:31 - 35.328 in order to create a business.

02:31 - 39.390 But it it's inconsistent with the plain language of the statute

02:31 - 43.661 to then say, well, you took your first preliminary step,

02:31 - 46.740 now we're going to disqualify you, even though no services

02:31 - 49.900 have been performed for any sort of wages or remuneration.

02:31 - 53.313 And that's just simply not consistent with the plain language

02:31 - 56.316 of for all of what I asked your colleague counsel.

02:31 - 57.451 Yes.

02:31 - 59.152 You talked about,

02:31 - 03.114 the actual operation of customer facing business, in your right.

02:32 - 06.584 So, similar to what I asked your colleague.

02:32 - 11.198 Does does the test rely on on money

02:32 - 14.458 being in the bank or who like receivables count?

02:32 - 16.203 Is there does it matter?

02:32 - 20.331 When we articulate what the test is or to the extent we do

02:32 - 24.368 do anything here, should the court try to

02:32 - 27.647 articulate

02:32 - 30.641 a line there, or is that do fine grained?

02:32 - 33.286 Respectfully, Your Honor, I think it might be difficult

02:32 - 37.791 because as as was pointed out earlier, wages isn't defined in the act.

02:32 - 41.051 And certainly, you know, whether or not you're, let's say you're,

02:32 - 45.365 you know, selling clothing or something like that versus providing

02:32 - 49.002 professional services like you're an accountant or, you know,

02:32 - 52.139 operating a landscaping business, something like that.

02:32 - 56.267 The line may look different, and it may be hard for this court

02:32 - 00.714 to sort of draw an exact line because this case, like almost

02:33 - 04.117 any unemployment compensation case, is very fact specific

02:33 - 08.245 and is going to depend on the facts of this case of, of each specific case.

02:33 - 11.715 So, as far as but in terms of giving

02:33 - 16.096 full faith and credit, as it were, to the prefatory language,

02:33 - 19.966 the services performed for wages, there would need to be some sort of,

02:33 - 24.171 you know, in, in the, in, in the traditional customer

02:33 - 26.506 facing business, it might be, you know, look,

02:33 - 29.376 I made you a pair of eyeglasses here is, you know, $100.

02:33 - 31.645 That might might be the line, but it might be different

02:33 - 35.382 for a different type of product or for a different type of business.

02:33 - 38.151 So we're not asking this court to, you know,

02:33 - 41.922 contemplate the infinite possibility of scenarios

02:33 - 45.692 where, where that line would be just recognizing that there has to be

02:33 - 49.453 that preliminary exchange before we can even get to the additional prongs,

02:33 - 51.755 under section four out to be

02:33 - 55.859 and,

02:33 - 59.139 Unless there are any further questions from the court,

02:33 - 02.175 we would just respectfully ask this court to extend its holding.

02:34 - 05.202 And Lohman and,

02:34 - 06.947 overall, the use of positive steps,

02:34 - 10.884 whether it's in the standalone or the third party, employment context.

02:34 - 12.452 Thank you, thank you.

02:34 - 13.920 All right. Thank you very much.

02:34 - 17.357 Thank you both. Succinct and to the point.

02:34 - 19.559 We appreciate that.

02:34 - 21.962 The next case before the court is Commonwealth

02:34 - 24.955 of Pennsylvania versus Kevin R Peters.

02:34 - 29.960 This is a criminal matter involving a conviction for a drunk driving homicide.

02:34 - 33.673 The defendant appellant argues that the standard

02:34 - 38.311 for a conviction or a requires recklessness such that life

02:34 - 41.739 threatening injury is essentially certain to occur,

02:34 - 45.442 and that such recklessness did not occur here.

02:34 - 50.490 He argues that the Superior Court, which is the intermediate appellate court

02:34 - 54.551 that heard this matter, previously, applied a lesser standard

02:34 - 58.889 when it upheld his conviction, and if the proper standard were applied,

02:34 - 02.893 the evidence was insufficient to show malice,

02:35 - 08.032 or that life threatening injury was essentially certain to occur.

02:35 - 11.012 The Commonwealth

02:35 - 14.271 contends that the Superior Court did not in its analysis

02:35 - 17.617 and application of the standard of malice,

02:35 - 21.679 which has long been the standard in Pennsylvania,

02:35 - 24.924 and that further the evidence from the trial

02:35 - 27.985 must be viewed in the light most favorable to the Commonwealth.

02:35 - 30.997 When the evidence is viewed in that light,

02:35 - 34.024 it was sufficient to uphold the conviction

02:35 - 37.737 for two counts of third degree murder.

02:35 - 41.207 The case presents both the question of whether the Superior Court

02:35 - 45.269 applied the correct standard in evaluating the evidence against the defendant,

02:35 - 50.274 and if it did, whether that evidence was sufficient to meet the standard.

02:35 - 54.988 The defendant essentially admits that he engaged in some actions

02:35 - 57.991 typical of drunk driving, including swerving,

02:35 - 02.228 driving at varying speeds, and then briefly driving at a high speed

02:36 - 05.656 before the collision that resulted in the deaths,

02:36 - 09.803 but argues that none of those actions, either individually

02:36 - 14.064 or cumulatively, made death essentially certain to occur.

02:36 - 19.503 Let's listen to this argument.

02:36 - 22.550 In December

02:36 - 28.321 2019, appellant crashed his SUV into a van which burst into flames,

02:36 - 32.182 severely injuring two of the passengers and killing two others.

02:36 - 36.053 Appellant had been drinking prior to operating his vehicle

02:36 - 39.933 and at the time of the accident had a blood alcohol

02:36 - 44.328 content of 0.151%.

02:36 - 49.476 A jury convicted appellant of numerous offenses,

02:36 - 54.214 including third degree murder and aggravated assault, serious bodily

02:36 - 58.776 injury, which are the only two convictions at issue before US

02:36 - 04.124 appellant appealed those convictions to the Superior Court, arguing

02:37 - 08.728 that the evidence was insufficient to support the jury's finding that

02:37 - 12.656 he possessed the requisite level of malice for these convictions.

02:37 - 16.603 In a divided on bond opinion, the Superior Court held

02:37 - 21.064 that the level of malice required to sustain the convictions

02:37 - 24.444 required a showing that appellant had a conscious

02:37 - 30.040 disregard for an unjustified and extremely high risk

02:37 - 35.045 that his actions might cause death or serious bodily harm.

02:37 - 39.216 The court determined that appellant displayed this level of malice

02:37 - 43.296 as he engaged in extremely reckless conduct

02:37 - 46.924 over a considerable period of time prior to the crash.

02:37 - 52.095 The dissent, however, maintained that in the DUI context,

02:37 - 56.200 this court requires a heightened level of malice,

02:37 - 01.381 specifically a level of recklessness that involves an awareness

02:38 - 06.243 that conduct is essentially certain to cause death or serious bodily injury.

02:38 - 12.058 The dissent opined that appellants act of applying his brakes

02:38 - 15.829 just prior to the crash supported a finding

02:38 - 19.456 that appellant lacked the requisite malice to support his conviction,

02:38 - 24.027 and that any chain of sustained recklessness was broken.

02:38 - 26.706 We granted review

02:38 - 30.601 to address whether the Superior Court applied the correct standard

02:38 - 35.615 in determining whether appellant possessed the requisite level of malice

02:38 - 41.588 for third degree homicide and aggravated assault in DUI cases, and,

02:38 - 46.550 if so, whether under the proper standard, the evidence was sufficient

02:38 - 49.529 to support appellant's convictions.

02:38 - 50.730 Please proceed.

02:38 - 51.465 Thank you.

02:38 - 54.033 Madam Chief Justice, may it please the court.

02:38 - 57.437 Good afternoon, Jules Epstein, on behalf of Mr.

02:38 - 59.105 Peters,

02:38 - 03.100 I don't usually begin an argument this way, but I am going to.

02:39 - 06.379 What my client did was horrible.

02:39 - 11.675 What my client did was terrible and caused unbelievable consequences.

02:39 - 14.921 And he was properly convicted

02:39 - 18.215 of numerous charges and properly sentence.

02:39 - 19.959 Then,

02:39 - 21.861 as you pointed out, Madam Chief.

02:39 - 24.888 Justice, the issue here is the malice charged.

02:39 - 30.160 And it is our contention that there are two errors here.

02:39 - 36.242 One is that the Superior Court indeed departed from and in some way

02:39 - 40.103 is disregarded or indeed disrespected,

02:39 - 43.407 clear precedent of this court.

02:39 - 46.610 And that goes back to the language that you quoted.

02:39 - 47.788 What is it?

02:39 - 50.514 Four words essentially certain to occur,

02:39 - 53.493 and that those words which

02:39 - 56.396 four members of the five

02:39 - 59.423 member Superior Court majority,

02:39 - 04.294 in a concurring opinion, dismissed as mere dicta, are not dicta?

02:40 - 07.798 They are clear holdings of this court.

02:40 - 09.742 And so the two matters.

02:40 - 13.637 We do ask you to address are indeed that the standard

02:40 - 16.916 in the context of drunk driving,

02:40 - 20.944 which is the precise language this court used repeated daily,

02:40 - 25.115 has that essentially certain to occur,

02:40 - 29.886 not the might language that you, Chief Justice Todd, quoted.

02:40 - 32.899 And that when you apply that

02:40 - 36.970 and this court's precedent and indeed the Superior.

02:40 - 42.375 Court's own precedent, except for this case, Mr.

02:40 - 45.645 Peters conviction for the malice crimes

02:40 - 48.705 and only those crimes should be reversed.

02:40 - 51.851 If this is solely based

02:40 - 54.845 on the argument that he hit his brakes before the crash.

02:40 - 58.181 No, Your Honor, there is more to it than that.

02:40 - 02.228 If you want to take it at your own order, that's fine.

02:41 - 02.595 Very good.

02:41 - 03.197 Thank you.

02:41 - 06.223 Kind of. For before you go on.

02:41 - 08.501 O'Hanlon. Yes.

02:41 - 11.004 Language that the majority

02:41 - 14.031 of the Superior Court uses and the decision.

02:41 - 19.412 Packer uses the language from the majority of the Superior Court and the dissent.

02:41 - 25.151 So, I appreciate your argument, but, how can you say that either one of them

02:41 - 28.388 deviated so grossly from the standards

02:41 - 31.415 that this court has announced?

02:41 - 34.127 I suggest

02:41 - 36.763 that that was done somewhat by ellipsis.

02:41 - 38.631 Justice Donohue.

02:41 - 42.869 And in Packer, where you wrote the opinion

02:41 - 45.896 for the court, which was unanimous,

02:41 - 50.767 and I quote, it had page five of our reply brief.

02:41 - 55.706 That read in context of the paragraphs together

02:41 - 00.010 this court made clear and it's in the tag line

02:42 - 04.514 that the recklessness must therefore

02:42 - 07.827 be such that life threatening

02:42 - 10.887 injury is essentially certain to occur.

02:42 - 15.201 This state of mind is accordingly equivalent

02:42 - 18.228 to that which seeks to cause injury.

02:42 - 24.434 I agree that there are pieces of language, if you will, other clauses

02:42 - 29.005 where it said slightly differently, including that might language.

02:42 - 32.018 But if we were to look at the case

02:42 - 35.045 and this is what I must ask this court to do,

02:42 - 39.583 I am suggesting that a fair reading of Packer

02:42 - 46.933 and it's 1688 third and 170 that when you read those two paragraphs

02:42 - 51.328 in its entirety, which is why I printed them in the reply brief,

02:42 - 54.831 because I suggest my colleague did not,

02:42 - 58.911 that they set that high standard.

02:42 - 01.681 So I the page number again, I'm Packer.

02:43 - 03.940 Yes, it's 168

02:43 - 09.546 Atlantic three A case 0170 I'm sorry.

02:43 - 10.324 All right.

02:43 - 14.651 And isn't it fair to say that we need to clarify this area of the law?

02:43 - 17.697 I mean, if you read Packer, which

02:43 - 21.267 which cites to, O'Hanlon

02:43 - 25.404 repeatedly, and O'Hanlon uses both languages,

02:43 - 27.907 I'm not sure they're different standards, is what I'm saying.

02:43 - 30.934 I mean, isn't isn't isn't the issue here.

02:43 - 33.312 What is the standard for malice?

02:43 - 37.216 And it's we know it's not different than that, which would apply

02:43 - 40.243 in an aggravated assault case

02:43 - 42.622 because we said that the mens rea

02:43 - 46.082 in both is malice. Yes.

02:43 - 49.319 And the added.

02:43 - 51.297 The added issue,

02:43 - 55.525 if I may, is that and this is what I'm suggesting

02:43 - 01.598 the court did, you know handling of reaffirmed in Comber.

02:44 - 07.470 So O'Hanlon was 1995 Comber was 1998.

02:44 - 12.008 We're back to this court in 2017 where you wrote.

02:44 - 16.146 We see no reason to revisit this remains the standard

02:44 - 19.649 which state which stated both standards.

02:44 - 21.327 I mean, that's what I'm saying.

02:44 - 25.021 I mean, I carefully read all of the opinions.

02:44 - 25.999 You're correct.

02:44 - 31.995 I authored for the court the decision in, Packer.

02:44 - 34.508 I don't know if

02:44 - 37.534 we were noting a distinction.

02:44 - 40.904 So what is the correct definition of malice and why?

02:44 - 44.774 So my understanding of reading those cases

02:44 - 49.388 is that it was precisely because the court was writing,

02:44 - 52.449 and I quote these words in the DUI context.

02:44 - 54.460 Why would it be different?

02:44 - 58.889 And the reason is, I think for two points,

02:44 - 03.970 one is we have a legislative scheme that already includes

02:45 - 07.874 drunk driving, specific assault and drunk driving.

02:45 - 11.244 Specific homicide and or drunk

02:45 - 14.271 driving is arguably reckless,

02:45 - 19.452 so that the court was acknowledging, as I understood it, both

02:45 - 22.812 because we exist in that statutory scheme

02:45 - 25.858 and because there's a horrible

02:45 - 30.363 prevalence of drunk driving, that for the rare case

02:45 - 33.423 to be drunk driving, malice murder,

02:45 - 37.136 it had to be at that extreme

02:45 - 39.963 because otherwise it doesn't pay

02:45 - 41.708 respect.

02:45 - 47.404 My word to the statutory screening scheme and doesn't acknowledge

02:45 - 51.341 the problem that we would swallow up full of drunk driving in it.

02:45 - 55.211 Well, except we took care of that problem by saying merely driving drunk

02:45 - 57.423 is not malice. Right.

02:45 - 59.625 I think we took care of that problem. Right?

02:45 - 03.086 And so you took care of it by saying, that's it.

02:46 - 05.031 We call it the low end, right?

02:46 - 06.699 That's what's not.

02:46 - 09.435 But to say what is it has to get to that

02:46 - 13.430 level of certainty for the facts in this case,

02:46 - 17.133 such that the defendant was driving, by the way, from

02:46 - 21.204 removed his eyes off of the road,

02:46 - 23.950 was two times the legal limit,

02:46 - 27.944 and was traveling at 115 miles an hour.

02:46 - 32.949 How do those facts not comport to your definition?

02:46 - 36.562 You said yes.

02:46 - 39.589 You're quoting the reckless recklessness.

02:46 - 42.401 Must therefore be such that

02:46 - 45.395 life threatening injury is essentially certain to occur.

02:46 - 47.139 And they did, in fact, did.

02:46 - 48.641 And it did, in fact did.

02:46 - 52.311 And if we were to work backwards from it, in fact did that different

02:46 - 55.681 respectfully from was it essentially certain to occur?

02:46 - 58.708 And here's why. Just justice Doctor Day.

02:46 - 03.422 There is no question that in those last five seconds,

02:47 - 08.251 because that's all that, the black box

02:47 - 11.597 event data recorder can capture.

02:47 - 14.624 His speed was up over 100,

02:47 - 18.328 talked about 115113106.

02:47 - 23.433 Any of the numbers is absurdly high for five seconds.

02:47 - 27.971 We do know that the very first witness who testified at trial,

02:47 - 31.917 who is actually the last person to see Mr.

02:47 - 35.788 Peters drive just before the accident, said

02:47 - 39.315 he was speeding but gave no description like that.

02:47 - 41.994 And what appears to have happened in the Commonwealth

02:47 - 44.997 seemed to have accepted this in their closing argument.

02:47 - 48.868 It was apparently, as he bends down looking for his phone.

02:47 - 51.094 Stupid, unsafe,

02:47 - 54.640 reckless

02:47 - 57.634 that I guess he put his foot down.

02:47 - 02.872 What we also know is there were no prior warnings.

02:48 - 05.851 And I want to make clear as I turn to that.

02:48 - 08.220 What do you mean no prior warnings? Okay.

02:48 - 11.381 One of the issues that came up below,

02:48 - 16.486 and it is actually acknowledged in the decision, the law here is it is.

02:48 - 19.698 I don't want to ever say more reckless, but hey,

02:48 - 26.196 a constituent part of the recklessness analysis is who was on notice of what.

02:48 - 31.644 So no one said to him, gee, Joe, you shouldn't drive.

02:48 - 34.380 Exactly. So drunk. Exactly.

02:48 - 37.407 Which is contrasted with Packer.

02:48 - 41.353 Where is Packer was personally on notice

02:48 - 44.380 having half right, snorted

02:48 - 48.351 cleaning fluid before she knew.

02:48 - 51.530 If I do that, it makes me unconscious.

02:48 - 56.192 I'm going to do it anyway and just it's not equivalent to say

02:48 - 01.407 I'm going to drink apple and get in the car on I-95 and drive

02:49 - 06.536 at least 100 miles an hour as I look for my phone on the floor.

02:49 - 08.981 You don't think that certain to occur?

02:49 - 09.549 Who do you?

02:49 - 11.250 Who needs to tell you? Stop!

02:49 - 12.251 Don't do that.

02:49 - 14.444 I didn't get the guys that I killed.

02:49 - 19.315 Just as doctored a.

02:49 - 21.927 I agree with you about the tragedy.

02:49 - 24.396 That's where I started.

02:49 - 25.831 In other cases.

02:49 - 30.160 And Komar is the best exemplar in Comber.

02:49 - 35.999 It was speeding on Roosevelt Boulevard in Philadelphia.

02:49 - 40.403 Much more highly trafficked than this area.

02:49 - 41.615 Comber.

02:49 - 45.675 This was I-95 somewhere in Bucks County

02:49 - 48.721 at about 1230 or 1 in the morning,

02:49 - 53.125 where even the video capture this does not show a highly traffic.

02:49 - 57.363 There was some traffic, but everything you're saying

02:49 - 00.390 respectfully is.

02:50 - 04.537 Often what happens in drunk driving.

02:50 - 07.897 And that's why I talked about there wasn't a warning.

02:50 - 13.379 And at least in some of the cases, the fact that the person

02:50 - 18.641 never attempted to breath was also considered a pertinent fact.

02:50 - 22.011 We do know that there was an attempt to break

02:50 - 25.191 both from the electronic data recorder

02:50 - 29.686 and from the fact that it wasn't head on that there was this at an angle.

02:50 - 32.855 I just have a record of reflected that.

02:50 - 37.193 Early on in the evening, when the work party

02:50 - 41.440 broke up, that somebody suggested they give your client

02:50 - 46.135 a ride home and that would be could be considered as a notice.

02:50 - 50.983 So that was what the Superior Court majority classified it

02:50 - 52.818 as the actual language.

02:50 - 55.778 And I'm sorry, I don't have it memorized. Was not

02:50 - 59.916 anything like, I think you should come with me or something.

02:50 - 02.628 It was. Hi, I'm going back to Bucks County.

02:51 - 03.729 Do you want a ride?

02:51 - 05.064 He offered other of the person

02:51 - 08.791 offered others rides to or made the general general offer.

02:51 - 11.870 So Justice Mundy, maybe.

02:51 - 12.606 And I don't mean.

02:51 - 15.307 Well, the facts of the fact is found by the trial court.

02:51 - 20.837 But I just wanted to say that likewise with your analogy on the breaking.

02:51 - 22.382 Certainly.

02:51 - 27.844 He could have been breaking for his personal reasons as opposed to,

02:51 - 31.590 conceptualizing the harm he was and the danger

02:51 - 35.151 he was placing the people that he ultimately wrecked into.

02:51 - 39.231 I don't think that was his testimony, but I certainly understand the court's

02:51 - 43.135 point, applying your request for us

02:51 - 46.162 to accept this proposed malice standard.

02:51 - 49.041 Can you what sort of.

02:51 - 52.011 UI injury or death aside from that?

02:51 - 55.238 Or can you imagine that would satisfy such a standard?

02:51 - 59.018 So we actually cite cases and our principle

02:51 - 02.554 brief where the Superior Court found more facts.

02:52 - 07.092 And I'm I'm sorry, I don't have them all memorized, but I think one is called pig.

02:52 - 10.663 Pig where there was warning

02:52 - 15.858 and the person persisted, there's one where somebody was in the crosswalk

02:52 - 19.662 and the driver saw that and sped up towards them.

02:52 - 23.208 So there are cases on there are cases

02:52 - 26.445 where people persist despite warnings.

02:52 - 29.581 Those all cases where the driving was ongoing

02:52 - 32.608 or I mean, because are you making the argument,

02:52 - 35.988 that conduct before

02:52 - 39.015 one gets behind the wheel is categorically irrelevant?

02:52 - 44.063 Or would you concede that there could be facts, hypothesize

02:52 - 47.090 a situation where we also had in the facts that your

02:52 - 50.093 your client, admitted,

02:52 - 54.564 you know, verbally that he was too drunk to drive in these,

02:52 - 57.209 you know, round when he removed the parking barrier,

02:52 - 00.470 etc., etc., that he admitted to others that he knew he was too drunk.

02:53 - 02.114 Could that be in the calculus here?

02:53 - 05.050 Absolutely. There's no

02:53 - 07.753 where I disagree with the Superior Court.

02:53 - 10.856 Justice Wecht is there thesis

02:53 - 14.593 that he was reckless from 8:00 that morning

02:53 - 19.789 when he chose to take his car to work, knowing that there was a party that night?

02:53 - 23.035 That distance, to me is too far.

02:53 - 29.408 Once he's drinking, certainly things he says, things he does, things

02:53 - 35.004 he's told could fairly contribute to the recklessness analysis.

02:53 - 38.107 We don't disagree with that at all.

02:53 - 42.545 We say that when you line this up with, again, I cite to Comber,

02:53 - 47.550 Comber was particularly egregious.

02:53 - 50.820 And in other cases after,

02:53 - 55.892 Comber actually a case called Delvecchio,

02:53 - 59.128 which was decided the same year as Comber.

02:53 - 03.199 The Superior Court said there's not enough here.

02:54 - 05.411 And that person was speeding.

02:54 - 08.147 It was a .191

02:54 - 12.275 or some higher within my client's level.

02:54 - 15.053 Where does wanton behavior fit into this?

02:54 - 19.715 Where does Wantonness fit into this spectrum?

02:54 - 24.096 Would you concede your client

02:54 - 25.330 conduct was wanton?

02:54 - 28.324 And does that equate to malice?

02:54 - 33.472 But not having good

02:54 - 37.400 hearted, depraved heart taking you back to the classroom here, professor.

02:54 - 40.379 Thanks.

02:54 - 42.781 And so my answer is two parts.

02:54 - 45.384 That was actually part of the jury instruction here.

02:54 - 50.746 So what happened is that the trial judge instructed on the three

02:54 - 54.993 different definitions of malice that we have

02:54 - 58.688 in the Pennsylvania suggested standard jury instructions,

02:54 - 03.359 none of which is the language of essentially certain to occur.

02:55 - 05.027 So we're to

02:55 - 07.973 one could make an argument if

02:55 - 11.734 this were decided under that standard.

02:55 - 15.872 And that goes back to a case called Commonwealth versus Drumm,

02:55 - 19.551 which is the historic origins of, malice

02:55 - 22.612 standard in Pennsylvania, that, yes,

02:55 - 25.858 what our argument has been

02:55 - 31.521 and remains and justice just forgive me for members of the Superior Court

02:55 - 34.933 right now, president Judge Lazarus seem to agree.

02:55 - 37.960 Is that this court's precedent

02:55 - 41.039 set that to the side.

02:55 - 43.942 My words, not hers.

02:55 - 46.969 In a drunk driving case.

02:55 - 52.084 Because in that context, and it goes back to what I tried

02:55 - 56.145 to explain when responding to Justice Donahue's question.

02:55 - 00.225 It was to separate this out

02:56 - 04.220 from the recklessness inherent in drunk driving

02:56 - 10.192 in a statutory scheme where we already have.

02:56 - 15.398 And I'd say that's name wrong, but it's homicide by drunk driving has a statute.

02:56 - 17.400 Councilman helped me

02:56 - 19.012 different.

02:56 - 22.038 Help me understand, please.

02:56 - 24.383 The line between

02:56 - 27.410 ordinary drunk driving recklessness

02:56 - 31.981 and this other level of recklessness that you're.

02:56 - 35.127 That you're talking about, that you say our case law.

02:56 - 39.255 I mean, I, I mean, I, I'm having a hard time figuring out

02:56 - 43.225 what set of facts get me past ordinary drunk driving recklessness.

02:56 - 47.873 So there are some analogies in the cases,

02:56 - 52.578 and then I will try and actually try and do what I watched people try and do.

02:56 - 55.671 Not necessarily successful today give you a test.

02:56 - 56.415 Oh that's great.

02:56 - 57.250 I like tests.

02:56 - 00.276 I will try. Okay.

02:57 - 03.512 But there's language in there, like Russian roulette.

02:57 - 09.461 Something like that, where we know in the context of driving

02:57 - 13.122 and everything else, that as in Russian roulette,

02:57 - 16.425 there are only six times somebody is going to die.

02:57 - 18.971 And so if the circumstances

02:57 - 21.998 were such that this person were driving

02:57 - 26.178 in the middle of the day outside of a school

02:57 - 28.981 where they knew they were outside of the school,

02:57 - 29.649 and the reason

02:57 - 33.242 I haven't given you a test yet, but I'm trying to do it first by example,

02:57 - 36.722 that we would say

02:57 - 39.725 you have to be on notice at that point.

02:57 - 43.452 The streets are so crowded, the situation is so bad.

02:57 - 46.656 And to go back to the language,

02:57 - 51.127 life threatening injury is essentially certain to occur.

02:57 - 54.463 But your distinction, I appreciate that you're, you know,

02:57 - 57.500 providing an example to illustrate, but I think,

02:57 - 00.612 it's it's a thin read

02:58 - 05.041 because to say that the, the law would recognize,

02:58 - 09.121 a, a distinction of this significance between,

02:58 - 12.515 as you said, driving down an urban street, whether it has a school or something,

02:58 - 18.597 and, and careening around I-95 at any hour, it's uncontested.

02:58 - 19.198 There were cars.

02:58 - 21.933 Are these two people called in 911?

02:58 - 23.402 He narrowly missed one of them.

02:58 - 26.762 Why is that not akin to Russian roulette?

02:58 - 28.607 It may be there are.

02:58 - 33.111 You know, maybe there are more chambers in the barrel in this version

02:58 - 38.374 of Russian roulette that are empty and fewer in the other version.

02:58 - 41.019 And but it's still Russian roulette is.

02:58 - 44.046 And it's going to it's going to happen here,

02:58 - 47.583 right?

02:58 - 51.587 I wish I could answer you scientifically.

02:58 - 56.158 He's not doing wheelies in a in a in a farmer's field.

02:58 - 58.270 Agreed on that.

02:58 - 02.140 And we're we're somewhere in the middle between farmer's field

02:59 - 04.276 and incredibly crowded street.

02:59 - 07.403 But I go back to this court's decision in Comber,

02:59 - 10.282 and I say, respectfully, I'm hard pressed.

02:59 - 14.744 But that's obviously just my opinion to say that Comber,

02:59 - 18.590 who not only drank which is legal

02:59 - 21.617 but also use drunk, is

02:59 - 24.854 and then gets in the car and is driving

02:59 - 28.190 now another hundred and or 106,

02:59 - 32.895 but at 70, in a 45 mile zone

02:59 - 38.634 on Roosevelt Boulevard, which at all days, all hours of day and night,

02:59 - 42.605 I would always ask this court to take judicial notice of it.

02:59 - 45.508 I live near there. It's crowded. I.

02:59 - 48.320 I'm I'm still struggling.

02:59 - 51.347 I know you didn't get to get to to the test.

02:59 - 54.259 You're you're almost.

02:59 - 57.453 And maybe my issue is with the court's precedent on this.

02:59 - 00.665 I could make an argument.

03:00 - 04.193 Maybe nobody would find it persuasive that

03:00 - 07.439 engaging in drunk

03:00 - 10.466 driving as an adult, getting inebriated,

03:00 - 15.538 getting behind the wheel of a car is malice.

03:00 - 17.682 Period.

03:00 - 19.918 I could I could make that argument.

03:00 - 22.945 I realize that sort of runs counter to

03:00 - 24.756 some of our precedent.

03:00 - 28.059 I realize that, and it also doesn't necessarily make a lot of sense

03:00 - 31.387 when it comes to the different gradations of DUI and things like that.

03:00 - 35.433 But what I'm having a hard time is trying to ascribe some kind of

03:00 - 39.061 an intentional voluntariness to someone who is inebriated,

03:00 - 41.573 who is who is intoxicated and can't drive.

03:00 - 42.741 I'm supposed to look at,

03:00 - 44.509 well, did they know that if they drank,

03:00 - 46.845 they were going to get drunk and hit people?

03:00 - 47.713 Did they?

03:00 - 50.081 Do they know that they can't drive while they're intoxicate?

03:00 - 52.984 I mean, did somebody warn them by drinking and getting behind?

03:00 - 58.280 I mean, this is all stuff that seems to me to be intuitive with drunk driving.

03:00 - 01.760 So I'm going to have a longer answer

03:01 - 04.696 if that's permissible, except for the fact I thought justice Works argument

03:01 - 06.932 where justice works fact pattern was very interesting though.

03:01 - 10.259 If you're doing wheelies in a field where you would

03:01 - 13.271 that where no one reasonably would expect the person to be.

03:01 - 13.573 Right.

03:01 - 17.275 And in the course of doing that, some farmers walking out there

03:01 - 20.302 and picking some corn and they get hit.

03:01 - 23.405 That's probably not malice, right?

03:01 - 25.917 But that's not what we have here.

03:01 - 28.944 Agreed. So

03:01 - 32.090 to take it from the top, so to speak.

03:01 - 33.625 Okay.

03:01 - 36.652 If this court were to now say

03:01 - 39.831 all drunk driving is malice

03:01 - 42.934 or whatever we said in

03:01 - 45.961 those cases was indeed

03:01 - 48.206 the rule of law.

03:01 - 50.609 But we got it wrong.

03:01 - 53.636 We're now realizing we misinterpreted.

03:01 - 58.841 Mr. Peters, I would suggest, respectfully, is entitled to the law unstated

03:01 - 03.846 because we can't go backwards and reduce the stand.

03:02 - 07.416 I'm assuming I'm correct of where the standard gets,

03:02 - 11.553 but this court

03:02 - 16.325 rule 20 something years ago, 95,

03:02 - 19.995 almost 30 years ago, that.

03:02 - 25.100 Drunk driving,

03:02 - 27.779 third degree murder or drunk driving?

03:02 - 29.581 Aggravated assault.

03:02 - 32.841 Malice needed more

03:02 - 38.714 and all drunk driving is dangerous.

03:02 - 42.961 Some things are dangerous,

03:02 - 45.988 arguably below the level of malice.

03:02 - 48.800 And so the court, the formulation.

03:02 - 51.469 I am asking this court my words,

03:02 - 54.773 and I realize I may be presumptuous here to stick with.

03:02 - 57.833 If I'm reading that,

03:02 - 02.614 Packer case correctly is in the context.

03:03 - 05.641 When you were driving drunk that day.

03:03 - 12.548 Did this meet that had essentially certain to occur standard?

03:03 - 18.420 And if it turns out that that's wrong and prospectively the law shouldn't be that.

03:03 - 22.667 I would again urge that's not fair for Mr.

03:03 - 27.162 Peters, if that indeed is what this court meant.

03:03 - 30.141 And O'Hanlon, Comber

03:03 - 33.335 and Packer, I know we can't change it for your client.

03:03 - 35.380 Right. Prospectively.

03:03 - 39.575 Should we go back to first principles and put aside the precedent for a moment

03:03 - 42.821 and look at the statutory language about

03:03 - 46.915 offense to find, reckless,

03:03 - 49.627 intentionally, knowingly or

03:03 - 54.065 recklessly under circumstances manifesting extreme

03:03 - 57.960 difference, indifference to the value of of human life.

03:03 - 02.264 If we just applied that without reference to judicial

03:04 - 06.201 overlays, does that put your client in a more

03:04 - 10.181 precarious situation or people like him in the future?

03:04 - 11.750 People like him in the future?

03:04 - 15.677 Yes. There's one tiny problem, I think justice work.

03:04 - 17.522 And that is.

03:04 - 21.250 And forgive me, I can't do this without writing it out.

03:04 - 24.720 I'd have to overlay that language

03:04 - 28.123 from the aggravated assault statute

03:04 - 31.236 with Drumm and the various definitions

03:04 - 34.263 of third degree murder malice.

03:04 - 37.433 I'm not sure that I and I may be wrong.

03:04 - 40.211 I would have to process that for a minute.

03:04 - 43.205 Whether the language of 2701

03:04 - 47.786 that you're quoting is actually third degree murder,

03:04 - 52.881 malice language, which O'Hanlon said they should be the same.

03:04 - 54.192 Yeah, that's what I was going to say.

03:04 - 56.261 Do you not consider doing the same?

03:04 - 00.498 I do, I have to I have to actually write that out

03:05 - 03.525 or reread the definition.

03:05 - 05.794 If they are this if, if,

03:05 - 09.674 if they're the same,

03:05 - 12.701 then perhaps we've gone astray.

03:05 - 16.748 And perhaps going forward it wouldn't apply to Peters.

03:05 - 21.844 But perhaps going forward we would then say just look at the statute

03:05 - 27.926 and the reckless under circumstances

03:05 - 31.954 manifesting extreme indifference to the value of human life

03:05 - 35.800 would look a whole heck of a lot like what he did on 95.

03:05 - 38.827 Would you agree?

03:05 - 42.307 Just.

03:05 - 47.345 I would probably debate the extreme, but certainly in difference in Malone.

03:05 - 51.540 Where were we not, interpreting the aggravated resolved

03:05 - 56.245 malice standard in Malone, the Russian roulette case?

03:05 - 59.748 I apologize, I don't recall, because in Malone,

03:06 - 04.062 we said that it's an act intentionally done

03:06 - 07.055 in callous disregard of its likely

03:06 - 10.325 harmful effects on others.

03:06 - 13.605 I I'm sorry. Justice done.

03:06 - 15.140 I'm not prepared for what's right.

03:06 - 16.698 What's wrong with that definition?

03:06 - 20.702 Likely harmful effect on

03:06 - 22.380 others or another.

03:06 - 25.407 Likely harmful.

03:06 - 30.121 And again, I'd have to line that up against the the drum traditional.

03:06 - 33.358 And I'm sorry without having it written out in front of me,

03:06 - 36.194 if the drum is shooting into a crowd, is that the drum case?

03:06 - 37.295 I believe so.

03:06 - 39.130 Yeah, well,

03:06 - 41.699 that would be a likely an intentional act.

03:06 - 44.726 Shooting a gun, right?

03:06 - 46.871 In callous disregard

03:06 - 49.898 of its likely effect on others.

03:06 - 54.436 And I mean, we're here on we're here on a charge to the jury, right?

03:06 - 57.472 Yes. That that's what you want is to straighten out here.

03:06 - 01.052 Well, I'm not here on the charge to the jury, actually,

03:07 - 04.179 because there was no objection made to the charge to the jury.

03:07 - 04.890 Okay.

03:07 - 10.018 So this is purely a sufficiency claim that upon review,

03:07 - 13.956 whatever the jury was instructed, do these facts.

03:07 - 16.301 Again, we're back to step one.

03:07 - 18.169 What is the test?

03:07 - 21.430 Step two is under that test.

03:07 - 26.201 If I'm wrong about the test, the case is almost certainly over.

03:07 - 28.246 If I'm right about the test.

03:07 - 32.841 Then we come to the issues that Justice Daugherty and Munday were asking me

03:07 - 35.920 about these particular facts and the facts.

03:07 - 38.089 I would respond with that.

03:07 - 41.025 No one sees him walking. Staggering.

03:07 - 44.753 We have plenty of videos with him, although we also have the video of him

03:07 - 49.591 doing this weird thing with the gate in the in the garage.

03:07 - 52.894 Are you saying because he didn't know he was drunk?

03:07 - 58.400 I am saying that

03:07 - 01.436 he knew how much he drank, right?

03:08 - 03.047 He was not mad.

03:08 - 08.343 If somebody is walking around falling down, it's it's a conscious somehow.

03:08 - 11.522 So I just want to make sure I say so.

03:08 - 15.994 We would have a different case if he was so inebriated that he couldn't

03:08 - 19.421 control his body functions, and probably had no idea what he was doing.

03:08 - 23.468 I think that that rises to malice when he had no idea what was going on,

03:08 - 27.062 because hopefully, how would you how would you get to malice?

03:08 - 28.707 That's immense.

03:08 - 31.709 It's a state of mind is completely inebriated, falling down.

03:08 - 35.580 And we're going to ascribe a greater level of malaise, a little reckless

03:08 - 39.141 because in Pennsylvania we do not allow

03:08 - 43.988 voluntary intoxication to negate mens rea.

03:08 - 45.123 Agreed.

03:08 - 47.025 He was voluntarily intoxicated, right.

03:08 - 51.653 But you were asking if someone was so drunk that they're falling over.

03:08 - 54.499 Therefore they're not realizing it.

03:08 - 56.934 We don't give anybody that out.

03:08 - 58.770 Is my understanding agreed?

03:08 - 01.863 Explain to me, though, why the falling down drunk

03:09 - 05.067 translates it from recklessness to malice.

03:09 - 06.844 I don't, that's what. That's what I don't understand.

03:09 - 09.471 I mean, I think just a study. You ask the question about drunk.

03:09 - 13.151 I could make an argument again.

03:09 - 18.313 Maybe not very persuasive that drinking heavily,

03:09 - 22.593 being intoxicated as a law would define it, getting behind a vehicle

03:09 - 26.822 or getting on I-95 at any time of the day is just as dangerous

03:09 - 30.392 as shooting a gun into a crowd.

03:09 - 33.495 You're playing with lives.

03:09 - 37.532 People are playing with lives every single time they drink and drive.

03:09 - 39.410 I can't well, maybe make,

03:09 - 42.804 but maybe somebody is not doing it when they're doing wheelies in a field.

03:09 - 46.451 But when they get on the I-95, that's that.

03:09 - 48.319 That's what makes it.

03:09 - 54.116 That's what takes it from, couldn't possibly have happened.

03:09 - 55.893 Who would have seen this? Who would have seen that?

03:09 - 59.397 They would have driving their car at three miles an hour through a cornfield

03:09 - 03.425 to try and get from the road to their, their, carport.

03:10 - 07.205 And they hit somebody in the middle of a cornfield versus, I'm

03:10 - 10.866 going to get my car out of this garage, I'm going to drive on I-90 five.

03:10 - 13.378 Everybody knows there's car.

03:10 - 17.014 It's not like I-95 closes down in this, but the same would be true

03:10 - 18.649 of Roseville Boulevard, too.

03:10 - 19.251 That's right.

03:10 - 22.677 And that's why it come back to this court's press event,

03:10 - 26.023 which would presumably inform the legal

03:10 - 30.194 sufficiency standard, as it should apply to Mr.

03:10 - 33.455 Peters, as opposed to perhaps prospectively,

03:10 - 42.798 I'm happy to answer other questions of the court.

03:10 - 48.379 I come back to the language and why we wrote in detail

03:10 - 51.640 in our reply brief, of

03:10 - 55.820 using the full context of your words.

03:10 - 58.847 Justice Donohue from Packer.

03:10 - 03.895 Which was from O'Hanlon, which also use the same standard

03:11 - 06.922 that the majority of the Superior Court used.

03:11 - 08.633 Therein lies the problem.

03:11 - 10.902 Okay. Except

03:11 - 13.404 I'm suggesting that we were you.

03:11 - 17.032 You know, we're not attempting to make new law in Packer.

03:11 - 20.202 We started out by saying we are reaffirming.

03:11 - 23.181 We are reaffirming O'Hanlon and Comber.

03:11 - 27.576 And if we go back to them, that's where this language came from.

03:11 - 31.480 So that's the language that the majority of the Superior Court used.

03:11 - 34.583 It can't it also came from O'Hanlon.

03:11 - 38.420 So and Justice Donohue, if the court determines

03:11 - 41.365 I'm being I'm being blunt with you.

03:11 - 44.392 I mean, I think if you're looking for clarity,

03:11 - 49.273 in the, precise language,

03:11 - 53.168 that's coming from these decisions, I just don't think it's there.

03:11 - 56.581 I mean, I think I think both are used.

03:11 - 59.608 I mean, my question to you at the outset was,

03:11 - 03.245 does it make a difference, likely to declines or

03:12 - 06.290 what the Superior Court said

03:12 - 09.317 may cause given the prefatory language to it?

03:12 - 13.197 And my answer is, I don't know why.

03:12 - 19.437 This court then added in, particularly when it was focused on drunk driving

03:12 - 24.466 and the dilemmas that we face on what is the continuum of recklessness.

03:12 - 29.638 Why? This court said, I would suggest emphatically

03:12 - 34.442 and was included in that later quote in Packer,

03:12 - 38.747 and it's right here, so please bear with me.

03:12 - 42.727 Essentially certain to occur a state of mind

03:12 - 46.555 that is equivalent to that which seeks to cause injury.

03:12 - 52.160 And I don't know that those words were I, to use that phrase, mere surplus edge.

03:12 - 54.438 I understand the

03:12 - 57.508 nuances that you're drawing and drunk driving cases.

03:12 - 01.670 But I think as that was developed, we were trying to be very careful

03:13 - 05.116 to not impose a different malice

03:13 - 08.810 standard in aggravated assault cases

03:13 - 13.949 and the, drunk driving, homicide case that we have here.

03:13 - 18.353 I think we were trying to be very careful that malice with malice,

03:13 - 23.058 under those, two different, statutes.

03:13 - 25.403 And I accept that.

03:13 - 28.930 And all I can say is, for some reason, the court included

03:13 - 32.901 for my paraphrase, the virtual certainty,

03:13 - 36.738 I I'm I'm not certain that's different from what I suggested earlier.

03:13 - 40.918 Malone said, is likely of its likely

03:13 - 45.547 harmful effects on others, likely harmful effects

03:13 - 51.820 to me essentially certain to occur is different from likely, but that.

03:13 - 54.198 I'm not.

03:13 - 57.034 Would you perhaps said too much? Yes.

03:13 - 01.572 We've said too much in in our effort, in the court's efforts over the decades

03:14 - 06.101 to bring clarity, we perhaps have rendered something less than clear.

03:14 - 10.748 So many years ago, I argued a case and Justice Breyer said, Mr.

03:14 - 13.150 Epstein, would you take off your advocate hat

03:14 - 16.478 and put on your professor hat and give me the answer?

03:14 - 17.756 All right.

03:14 - 20.782 Luckily it was the same that day.

03:14 - 24.252 My professor hat says

03:14 - 28.432 there are little I mean, no disrespect,

03:14 - 31.693 but because of all that language, there,

03:14 - 35.606 whether we cause a little messy or a little extra

03:14 - 38.633 verbiage that

03:14 - 41.445 everyone who wants can find what they want

03:14 - 44.839 in, it is a fair way of saying that.

03:14 - 48.019 But for some reason,

03:14 - 51.046 talking about by example,

03:14 - 54.525 it's like Russian roulette.

03:14 - 58.119 It's like driving into a crowd of people,

03:14 - 01.523 to me, was an attempt to define it

03:15 - 04.702 precisely because

03:15 - 09.431 of the epidemic nature of drunk driving.

03:15 - 15.746 How fast was your client driving when he decided to reach over

03:15 - 20.608 and try to find his telephone on the passenger seat of the car?

03:15 - 23.645 I think it's fair to say, and I'll defer to my colleague.

03:15 - 27.758 I don't know if that was in the last five seconds

03:15 - 31.662 or shortly before the last five seconds, so it may have been.

03:15 - 36.558 He bent and then his foot presses down on the accelerator.

03:15 - 40.962 We only know the last five seconds, and it's hard to say.

03:15 - 42.540 Was it its second five?

03:15 - 48.279 Was it the second six second aid when he made that reach again?

03:15 - 52.416 All I can do is refer you to the testimony of the very first witness.

03:15 - 53.440 The trial,

03:15 - 56.887 who was an ambulance driver

03:15 - 01.049 who's driving along Swan Pass, and he was going very fast.

03:16 - 04.228 Not maybe it was extremely fast,

03:16 - 07.255 but never said anything like this was like,

03:16 - 10.167 forgive the words bad out of it, right?

03:16 - 12.570 The proverbial cannon ball.

03:16 - 14.305 That's the best I can answer you.

03:16 - 16.907 The record is not clear.

03:16 - 19.276 All right, professor Epstein, thank you so much.

03:16 - 21.212 Thank you for your kind attention.

03:16 - 22.947 Let's hear from the Commonwealth, Mr.

03:16 - 25.974 Lewis.

03:16 - 29.344 And please correct me if I was wrong.

03:16 - 32.413 Thank.

03:16 - 34.526 Madam Chief

03:16 - 37.795 justice, members of the court, Timothy Lewis, on behalf

03:16 - 41.031 of the Commonwealth for Bucks County, Pennsylvania district Attorney's

03:16 - 44.058 office.

03:16 - 46.570 Your honors,

03:16 - 48.239 at this point in time,

03:16 - 52.343 I think the line has been said was the first thing in my notes.

03:16 - 53.711 Malice is malice.

03:16 - 55.279 Malice has always been malice.

03:16 - 56.814 Malice has been defined

03:16 - 00.108 and was finally defined in the end of the Packer decision by your honor,

03:17 - 04.388 saying the standard or malice enunciated and done, reiterate, reiterate it

03:17 - 08.416 in O'Hanlon and reaffirm today requires recklessness of consequences

03:17 - 12.353 and the conscious disregard for an unjustified and extremely high risk

03:17 - 16.024 that a chosen course of conduct might cause a death or serious personal injury.

03:17 - 19.236 That has been said many times over the years.

03:17 - 21.005 You might was a misstatement.

03:17 - 23.808 Either the word of might was a misstatement.

03:17 - 26.610 I don't believe so, Your Honor, because looking at other cases,

03:17 - 28.036 it's a quote from O'Hanlon

03:17 - 31.515 that is the final holding, in fact, of the year.

03:17 - 34.218 Honor. Yes. What do you think? Do you think that was?

03:17 - 37.245 Do you think that was a mistake when we first used it to say mine?

03:17 - 40.615 No, Your Honor, because if we look at the other cases here over the years,

03:17 - 43.761 the intentional act of doing an uncalled for act and callous

03:17 - 46.788 disregard of its likely harmful effect on others,

03:17 - 49.333 the gross, reckless, grossly reckless conduct

03:17 - 52.360 which he should have known was likely to result in serious bodily harm

03:17 - 57.341 might and likely, these terms of use over a lot of things might happen, right?

03:17 - 00.144 And a lot of things that might happen or not likely to happen.

03:18 - 00.612 Right?

03:18 - 03.538 I'm just I'm just probing the, you know, the the,

03:18 - 05.884 the holes that might have

03:18 - 08.910 opened up in the jurisprudence over all these,

03:18 - 12.714 you know, iterations of the standard judicially,

03:18 - 16.694 I would think that there might be different phraseology by the court

03:18 - 18.462 or different nuances as to which was used.

03:18 - 23.358 But malice has always been the same thing, which malice is that action

03:18 - 27.495 that this court has relied on over the years of that

03:18 - 32.634 of what it needs to be with that risk, what the what the extremely high risks

03:18 - 35.670 with the knowing the risks and disregarding it

03:18 - 38.549 with the might

03:18 - 41.085 or likelihood that it was going to happen.

03:18 - 43.654 But the court has specifically said, which is three different things.

03:18 - 44.089 Okay.

03:18 - 48.049 My yes, Your Honor, but in due respect, Your Honor, it's the court's language.

03:18 - 49.560 Over the years that has been that way.

03:18 - 52.463 I understand that, but it's been many things over the years.

03:18 - 55.232 Malone news is afraid. I mean, malice is malice.

03:18 - 56.800 You you started out with that.

03:18 - 00.595 I think we said that, I'd have to look again at the,

03:19 - 05.276 difference in gradation that might clouds in different conclusion or,

03:19 - 09.413 whatever your, opponent's well stated argument.

03:19 - 09.781 Whites.

03:19 - 14.351 But certainly Malone, which is a pure aggravated assault malice

03:19 - 19.623 case, uses the phrase as it's likely harmful effect on others.

03:19 - 22.593 Do you agree that the standards should be the same?

03:19 - 23.228 Of course, Your Honor.

03:19 - 24.929 I now should be the same regardless.

03:19 - 26.764 And I think that's where I differ in opinion with Mr..

03:19 - 30.100 I've seen in regards to there being a different standard of malice

03:19 - 33.127 versus driving under the influence offenses and different standards.

03:19 - 36.807 Males can have more than one definition.

03:19 - 39.743 There can be the nuances and different phrases and choices with that.

03:19 - 41.979 But you cannot have a DUI malice.

03:19 - 44.448 You can't have an aggravated assault, malice.

03:19 - 46.150 You can't have a third degree malice.

03:19 - 49.444 Now this is across the board, the same exact thing.

03:19 - 50.455 I don't think Mr.

03:19 - 54.825 Epstein is necessarily arguing that that's a bad thing,

03:19 - 58.829 to have the same definition of malice across across crimes.

03:19 - 01.856 I think what he's arguing is if you want to do that,

03:20 - 06.194 don't hold my client accountable for what seems to be,

03:20 - 09.340 messy, messy and so messy language.

03:20 - 13.701 Messy language that, on one hand said

03:20 - 19.049 essentially likely or essentially certain, which you can't divorce that

03:20 - 22.076 language, you can't exercise that language out of the opinions. Yes.

03:20 - 26.023 And likely and he's saying, go ahead

03:20 - 29.217 and fix this if you want to fix this, if you think it was wrong.

03:20 - 31.419 But my client still deserves relief.

03:20 - 34.565 What do you say to that?

03:20 - 37.592 I think at the end of the day, the.

03:20 - 44.842 The essentially certain language

03:20 - 48.236 for regardless of what this court would choose to use, if you were going to alter

03:20 - 51.148 whatever the definition of malice is or what you believe it to be,

03:20 - 54.175 we would meet that essentially certain language

03:20 - 56.253 in this case.

03:20 - 59.123 And what why is that?

03:20 - 00.391 You want to go through,

03:21 - 03.627 what facts lead to that conclusion,

03:21 - 07.355 or is there really only one fact that makes a difference here?

03:21 - 07.932 Your honor?

03:21 - 12.193 Arguably rise off of the road and reaching over for your phone.

03:21 - 15.963 When you're going at a very fast rate of speed, you've got.

03:21 - 18.342 Your Honor, I would say.

03:21 - 18.877 And I know Mr.

03:21 - 22.079 Epstein took issue with this, that the events leading up the entire day

03:21 - 23.614 is how I explain everything in the brief

03:21 - 26.550 and how we explained everything from the beginning of his choices.

03:21 - 29.920 Those are all factors in the ultimate totality

03:21 - 31.055 of circumstances, viewed in the light

03:21 - 34.816 most favorable to the Commonwealth, that when we get to that moment

03:21 - 38.562 of him getting behind the wheel of him breaking the gate

03:21 - 42.356 because of his intoxication, because of his decision and malicious act,

03:21 - 45.893 keep going to almost hitting the two cars

03:21 - 50.074 or the hitting the one car, the 2911 call was the driving.

03:21 - 55.002 The three most important things in this case, Your Honor, is the .151.

03:21 - 57.881 It's 115 miles an hour.

03:21 - 01.909 And it's a decision that he made to take his eyes off the road.

03:22 - 06.190 He purposely made that decision to take his eyes off the road

03:22 - 10.551 to look down, reaching within his bag to find what he was looking for.

03:22 - 12.230 No need

03:22 - 13.931 to tell anyone that they shouldn't

03:22 - 16.266 be taking their eyes off the road while they're going 150 miles away.

03:22 - 19.703 If he hadn't had done that, and he had gotten in the car and he'd

03:22 - 24.475 gotten on I-95 and he was driving down and he was the most attentive drunk driver

03:22 - 29.203 you have ever possibly imagine, like, was absolutely locked in.

03:22 - 32.316 You know, I know I'm loaded.

03:22 - 32.884 I don't want to.

03:22 - 34.618 I don't want to hurt anybody.

03:22 - 38.479 But, you know, somehow some way swerves and,

03:22 - 41.816 you know, hits somebody who walking on the berm

03:22 - 46.020 is that malice?

03:22 - 47.931 I think it could be.

03:22 - 51.759 It's a fact in that fact pattern that takes it away from ordinary drunk driving.

03:22 - 55.229 I think in that scenario in

03:22 - 58.809 the court, this court in the spirit court has repeatedly

03:22 - 02.570 said the driving while driving drunk alone is not malice.

03:23 - 03.248 Right.

03:23 - 06.274 So in your hypothetical, your Honor,

03:23 - 11.355 that only leads to a slight deviation or something along those lines.

03:23 - 13.056 It wasn't that it was perfectly driving.

03:23 - 16.326 This was the decision choices that he made.

03:23 - 18.929 I suppose, actually, in your circumstances or under, he's

03:23 - 22.199 making more of the affirmative decisions to do things such as Mr.

03:23 - 23.724 Peters said. And that's malice.

03:23 - 28.238 I'm just saying as far as active decision making, while I'm trying

03:23 - 31.408 to figure out what the difference between normal drunk driving that leads to death.

03:23 - 34.435 Yes, and malice drunk driving that leads to death.

03:23 - 38.815 And here you're saying it was sort of a confluence,

03:23 - 41.842 but you you do focus on the idea that,

03:23 - 44.988 while he's driving drunk, he moved his eyes away from the road,

03:23 - 45.924 grabbed the phone, and.

03:23 - 48.892 Oh, by the way, if anybody shouldn't do that, nobody should do it.

03:23 - 50.494 But a drunk driver certainly shouldn't do that.

03:23 - 52.029 And that's what gets us to malice.

03:23 - 54.731 I'm saying that didn't happen.

03:23 - 56.433 He was the most attentive, drunk driver

03:23 - 59.460 you could possibly imagine and still killed somebody.

03:23 - 00.904 Then I rise to mouth.

03:24 - 03.674 I don't know for certain that it would, Your honor.

03:24 - 05.676 I know it's not just that. It's. You know.

03:24 - 05.877 Yeah.

03:24 - 09.570 So following up on that in Justice Robson's hypothetical,

03:24 - 15.676 it it wasn't the

03:24 - 19.122 driving drunk on

03:24 - 21.058 route 95.

03:24 - 23.560 That was the Russian roulette aspect.

03:24 - 27.288 It was the fact that Peters, in your view,

03:24 - 30.534 was not the most attentive drunk driver.

03:24 - 33.070 He was a what a careless drunk driver.

03:24 - 34.438 No, Your Honor, it would be.

03:24 - 37.107 It was with Peters.

03:24 - 38.609 It was playing Russian roulette.

03:24 - 41.111 It was what it was playing Russian roulette.

03:24 - 45.606 Him driving down the road, not looking, being that drunk, not paying attention.

03:24 - 50.578 Increase his speed as he was bending over, his speed increased.

03:24 - 52.990 We don't know more than those five seconds out,

03:24 - 55.926 but we know that as he was leaning over which his last words

03:24 - 58.953 were as he was testifying, I looked up and the car was there.

03:24 - 01.465 Yes, it was increasing.

03:25 - 03.333 You've eloquently articulated the facts.

03:25 - 05.502 I guess the follow up question, I would have it.

03:25 - 09.597 Do you think the legal standard we have is adequate is adequately clear?

03:25 - 13.143 I think the definition, yeah.

03:25 - 15.245 I think it would be clear for this case.

03:25 - 19.116 Yes, I think it's clear I think now is is perfectly defined as it is.

03:25 - 22.219 I understand that there differentiations.

03:25 - 25.246 But the final holding of the sport was in Packer saying the likely,

03:25 - 27.257 the likely and the might

03:25 - 30.284 it all reaches the same level standard of malice at malice.

03:25 - 34.121 It doesn't look it doesn't really likely is very different than might

03:25 - 37.601 likely likely to cause

03:25 - 40.695 versus might cause are two very different things.

03:25 - 42.706 Okay.

03:25 - 46.434 I mean, I could make an argument that, driving drunk,

03:25 - 50.614 which means you don't have, the reaction time

03:25 - 53.874 that you either my wife otherwise might have,

03:25 - 00.214 but nothing more than a split second, delay and putting on the brakes.

03:26 - 01.858 That wouldn't be malice.

03:26 - 04.885 That's driving drunk, you know, and having reduced,

03:26 - 07.955 reaction time

03:26 - 11.802 that's different than

03:26 - 14.962 doing that is likely to cause.

03:26 - 19.710 Harm to another.

03:26 - 22.737 I think with the likelihood, though.

03:26 - 27.875 With the facts of the case and him driving down the highway where there were cars,

03:26 - 32.380 where he almost ran into the cars repeatedly and over the circumstances,

03:26 - 35.959 he was playing that standard of Russian roulette.

03:26 - 39.754 He was the likelihood of him causing that injury

03:26 - 43.324 was clear and

03:26 - 45.402 going to happen

03:26 - 48.429 because of everything that was going on with him.

03:26 - 52.509 On that time period with the driving drunk, the speeding, he was going that

03:26 - 53.077 fast.

03:26 - 56.137 You, all three of them combined together

03:26 - 59.549 is what gets you there, right?

03:26 - 00.751 I think we understand.

03:27 - 03.553 Do you have anything else that you wanted to add?

03:27 - 04.721 Just a few things.

03:27 - 06.189 If I could

03:27 - 08.516 add one of the things that was focused on by

03:27 - 12.362 the bonk panel under the sun and that was mentioned

03:27 - 15.823 briefly today, was the decision to the breaking.

03:27 - 21.362 One of the focuses was by the dissent that the brakes were applied.

03:27 - 24.808 One of the issues that was used by the Commonwealth

03:27 - 28.602 is that he replied, the brakes at point four seconds before the accident.

03:27 - 31.815 My argument is that is that A is effectively not breaking at all

03:27 - 35.810 at point four seconds in terms of that as well.

03:27 - 40.023 That doesn't take away him hitting the brakes doesn't take away

03:27 - 43.050 the malicious act that occurred that caused the accident.

03:27 - 46.086 That would be me shooting into a crowd,

03:27 - 48.732 sorry, into a crowd of people and trying

03:27 - 51.759 to reach out and grab that bullet before it hits somebody else.

03:27 - 55.472 That doesn't take away the moment that I made that decision to shoot that

03:27 - 56.897 gun into a crowd of people.

03:27 - 01.178 So I think the focus on and viewing the breaking.

03:28 - 04.638 But there are two different, parts of the malice standard

03:28 - 08.042 and intentional act is the first part

03:28 - 11.121 you're talking about. That's the first part.

03:28 - 14.424 The second part is, is that intentional

03:28 - 19.653 act likely to cause harm to another? Yes.

03:28 - 24.067 Which is the same thing which with which was happening

03:28 - 28.028 when he was intentionally driving down the highway on I-95,

03:28 - 31.908 when he intentionally took his eyes off the road and was intentionally

03:28 - 35.135 going 150 miles an hour, he didn't need anyone to tell him

03:28 - 38.772 to not do any of those things, because all of them were improper.

03:28 - 40.517 All of them, he knew was wrong.

03:28 - 44.111 And as his own testimony said, I thought it would be okay.

03:28 - 47.815 That's a reflection upon himself that he knew when he was doing that.

03:28 - 49.583 I think it might be okay,

03:28 - 53.787 but knowing that he shouldn't have done it.

03:29 - 03.807 In light of the Peters,

03:29 - 06.409 in the circumstances of this case, I would ask that you would affirm,

03:29 - 09.770 Your Honor, the decision by the on superior Court.

03:29 - 13.650 I believe that there was enough to show with the totality of the circumstances

03:29 - 16.119 in the light most favorable to the Commonwealth, that Mr.

03:29 - 19.146 Peters did act with malice when he was driving on those days.

03:29 - 23.117 That's committing the two third degree murders and the two aggravated assaults.

03:29 - 25.062 Thank you.

03:29 - 26.630 Thank you both, Mr.

03:29 - 30.391 Miller, will adjourn for the day and for the jury.

03:29 - 31.925 Thank you. Counsel.