00:04 - Good morning everyone.

00:06 - Welcome to the first. Pardon me.

00:09 - Third day.

00:10 - It's been a long week.

00:11 - Welcome to the third day of our spring 2026

00:15 - oral argument session here in Philadelphia.

00:18 - The Pennsylvania Supreme Court is the oldest appellate court in North America.

00:23 - Our roots date back to William Penn's

00:26 - provincial court of 1684,

00:29 - and our court was formally established

00:32 - pursuant to the Pennsylvania Judiciary Act of 1722.

00:37 - In May of 2022,

00:40 - we celebrated our 300th anniversary

00:43 - with a special session at Old City Hall here in Philadelphia.

00:48 - We on the court are very proud of our rich history.

00:53 - In 1996, 274 years

00:57 - after the establishment of our Supreme Court, Madam Justice Sandra

01:03 - Schultz Newman became the first woman

01:06 - ever elected to our Supreme Court.

01:10 - On September 9th, 2025, we gathered in this courtroom

01:14 - to bestow a very special and well-deserved

01:18 - honor upon Madam Justice Newman

01:21 - by renaming this historic courtroom.

01:24 - The Madam Justice Sandra Schultz Newman Supreme Court courtroom.

01:30 - Sadly, Justice Newman passed away

01:33 - last month on February 2nd at the age of 87.

01:38 - Justice Newman was an inspiration to me and to countless

01:43 - other women in the judiciary and to the legal profession.

01:48 - May her memory be a blessing.

01:51 - I would like to introduce some students who are here with us today.

01:55 - They are from my alma mater, Lincoln High School in Elwood City.

02:01 - The students are part of the AP, U.S.

02:04 - government and politics class and the American government class.

02:09 - And they are here with their teacher, Mr.

02:12 - David Davis.

02:14 - And, their other chaperon, miscarry.

02:17 - Smith. So students and,

02:21 - chaperons and teacher, will you stand up

02:24 - so we can acknowledge you?

02:33 - Thank you.

02:34 - We're so happy that you're here with us.

02:37 - I believe this is the 14th year, Mr.

02:41 - Davis.

02:42 - That's roughly correct.

02:43 - The 14th year that, Mr.

02:46 - Davis has brought his students to Philadelphia for an educational trip.

02:51 - They come in on the train, and, they spend a couple of days

02:56 - exploring the historical aspects of Philadelphia with its rich history.

03:01 - And they always spend one day observing our oral arguments,

03:05 - so we're happy to have them.

03:07 - I'm always hopeful they'll be a future lawyer in the bunch.

03:11 - I'm not sure about that this year, but council

03:13 - try not to dissuade them from a career in the law.

03:17 - During your arguments,

03:19 - I'd now

03:20 - like to turn it over to Justice Mundy

03:23 - to talk about a very special video that we're going to show

03:27 - before the arguments begin. Justice Monday.

03:31 - Thank you.

03:33 - As part of our celebration

03:35 - in May of 2022 of the court's 300th anniversary,

03:40 - we put together a group of attorneys from across the state

03:44 - to decide how to celebrate the court's anniversary.

03:49 - And as part of that program, we started looking at the rich history

03:52 - that our court has, and we decided that it was very important

03:57 - to place a marker to mark the place where the Supreme Court's

04:01 - first formally sat here in Philadelphia.

04:04 - Now, that was prior to 2022 and probably around 2018,

04:10 - when we first became a came upon the idea that really would be important

04:15 - to mark the place where the Supreme Court first sat.

04:18 - And all I can tell you, it has been an odyssey to get our marker placed.

04:23 - And here we are, so happy in

04:27 - September of

04:29 - 2026 to now place this marker.

04:34 - So I want to give my congratulations to the Pennsylvania Supreme Court's

04:39 - Historical Commission for completing one of their very first projects,

04:44 - and also to give my heartfelt thanks to Stacey Retallick,

04:48 - Nikki Dipasquale and Brian Minner, among many others

04:52 - who worked tirelessly to, finish

04:56 - this project.

05:03 - That.

05:09 - Results in Pennsylvania and helped shape

05:12 - the South in 17 2235 1684.

05:17 - The category is very important.

05:18 - People of color for the United States.

05:21 - For over 300 years, it has upheld the rule of law, protecting

05:25 - individual rights and strengthen the foundation of our democracy.

05:30 - From the founding of the present day,

05:32 - the court decisions have influenced the outcome.

05:36 - Of course, across the nation.

05:38 - This historical marker stands on the for the for us

05:43 - as a tribute to the

05:44 - generations of journalists who served, the citizens who sought justice

05:48 - for the enduring loss to you

05:52 - as we on because we long for history.

05:56 - We celebrate the anniversary marking Jesus,

06:00 - Pennsylvania for 300 years of justice

06:03 - and the work.

06:16 - Thank you for showing the video.

06:17 - Thank you, Justice Mundy, and thank you for the leadership

06:22 - that you provide to our Historical Commission

06:25 - and for all those who were involved in putting this together.

06:27 - It's an important event for our court.

06:31 - Before we hear the first case, I would like to remind Council of a few things.

06:36 - Appellant's counsel, please approach the podium when your case is called.

06:41 - I will then give a short summary of the case.

06:44 - Please begin by introducing yourself

06:46 - and your co-counsel and identifying the party you represent.

06:51 - The justices are familiar with your cases, so we ask that you avoid

06:55 - any unnecessary recitation of facts or procedural history,

07:00 - and instead focus on the main issues on which we granted review.

07:05 - Counsel is welcome to rely on their briefs for particular issues

07:10 - in cases of where there are multiple

07:13 - parties represented by separate counsel.

07:16 - Council should avoid repeating the same arguments as prior counsel.

07:21 - Please try not to interrupt the justices when they are asking you a question,

07:26 - a justice.

07:26 - This question is not meant to trip you up.

07:29 - Rather, it indicates

07:30 - that there are particular issues that we wish to explore further.

07:34 - I remind you that in our court we do not allow rebuttal.

07:39 - Finally, while we have no set

07:41 - time limit for argument, I will advise counsel

07:45 - when the court is satisfied that all of its questions have been answered.

07:49 - And at that time, I will ask that you conclude your argument.

07:54 - Mr. Miller, we need just a moment.

07:56 - All righty.

08:03 - The next two cases.

08:04 - Commonwealth versus Charles C Cosell.

08:07 - The third and Commonwealth versus Jared R and Scott each involved

08:11 - criminal convictions for violations of the state Controlled

08:15 - Substance, Drug, Device and Cosmetic Act, which is commonly known as the Drug Act.

08:20 - A person commits the crime of drug delivery or delivery,

08:23 - resulting in death, a third degree felony under the Drug Act,

08:27 - when he intentionally administers, dispenses, delivers,

08:31 - gives prescribed cells are distributed to controlled substance

08:35 - and another person dies as a result of using the substance.

08:39 - As the facts for each case will show these appeals, turn on the word deliver

08:45 - and Cosell, the defendant, arranged

08:46 - to purchase heroin and drove with the victim to the dealer's home.

08:50 - There, Cosell

08:51 - purchased heroin from the homeowner that he and the victim used together.

08:56 - The victim then died of an overdose.

08:58 - Cosell was convicted of several crimes, including third

09:01 - degree murder in the crime of a drug dealer, resulting in death.

09:05 - He appealed his convictions to the Superior Court, arguing that

09:08 - because he and the victim acquired the drugs jointly and used them jointly,

09:13 - he did not deliver the drugs to the victim.

09:17 - The Superior Court affirmed his convictions, holding it.

09:20 - Cosell controlled the drugs and that he physically

09:23 - conveyed drugs to the victim that ultimately killed her.

09:26 - That conveyance or transfer was sufficient to constitute delivery under the act.

09:32 - The facts in Scott are slightly different.

09:35 - Scott met with two other savage in what L did.

09:38 - The three plan to acquire drugs from Scott's contacts.

09:41 - Scott did not personally pay for the drugs.

09:44 - He used Savage and Waddle's money, but he did purchase the drugs

09:48 - from his contacts.

09:49 - Scott shared the drugs with the other two,

09:52 - eventually resulting in Savage's death by overdose.

09:55 - Scott was convicted of drug delivery, resulting in death under the act.

10:00 - He also appealed his conviction to the Superior Court,

10:03 - arguing that because he did not pay for the drugs

10:07 - and because the drugs were jointly shared and used, he did not deliver them.

10:12 - The Superior Court disagreed.

10:14 - As in Cosell, the Superior Court held that Scott's

10:18 - physical transfer of the drugs from his contacts to Savage

10:22 - and Waddell was sufficient to establish delivery under the act.

10:27 - The Supreme Court has granted allowance of appeal in both cases,

10:31 - but the issue is identical, for each case is framed by the court,

10:36 - where two or more

10:37 - persons jointly and constructively acquire drugs.

10:40 - Is that a defense to the element

10:42 - of delivery for charges of possession with intent to deliver

10:46 - drug delivery, resulting in death and third degree murder?

10:50 - If so, is the defense sufficient for an acquittal or,

10:54 - in the alternatives, defense, sufficient to obtain a constructive

10:57 - possession style of jury instruction?

11:01 - Let's watch and listen to the arguments in Commonwealth

11:03 - versus Cosell and Commonwealth versus Scott.

11:08 - Thank you very much, Mr.

11:10 - Bitter. What you call the first case.

11:12 - Hello.

11:13 - This video is from

11:15 - the third major comparative study

11:18 - representing the strong

11:21 - reading for the 30.

11:26 - Pursuant to section 2506 of the Crimes Code.

11:30 - An individual commits the crime of drug delivery resulting in death

11:35 - where he intentionally administers, dispenses, delivers, gives, prescribe,

11:41 - sells or distributes any controlled substance in violation of the Drug Act,

11:47 - and another person dies as a result of using the substance.

11:52 - In this appeal by allowance, we granted review to consider number one

11:57 - whether an individual who is charged with this event can negate the delivery aspect

12:03 - by showing that the victim either actually or constructively,

12:09 - jointly acquired, possessed, and or used the drugs.

12:13 - And number two, whether such defense warrants

12:17 - a jury instruction on constructive possession.

12:21 - Good morning.

12:24 - Good morning.

12:25 - May it please the court.

12:26 - Chief justice, attorneys and Kitteridge.

12:29 - My name is Anthony Moreno.

12:31 - I am from the York County Office of Conflict Counsel.

12:34 - And I represent the appellants, Charles Cassell and Jared Scott, in these matters.

12:40 - These appeals ask whether joint acquisition and use of drugs

12:43 - negates a delivery under drug delivery, resulting in death.

12:46 - And in the case of Cassell, his murder three conviction,

12:50 - which relied on a delivery, in order to prove the murder.

12:53 - Three there was first insufficient evidence of a delivery in these cases,

12:58 - as the parties jointly acquired the drugs they used together.

13:02 - Even if there was sufficient evidence, the trial court's denial of the requested

13:06 - jury instruction on the defense was an error which should be reversed.

13:12 - The unpublished Superior Court opinion and Commonwealth.

13:16 - Brown and the Third Circuit's decision in the United States v somewhere

13:20 - found that no delivery occurs when co users

13:23 - jointly acquire and possess drugs for shared use.

13:27 - Counsel of the Brown

13:30 - opinion to which you're

13:31 - referring was only joined by the author himself.

13:35 - Right.

13:35 - There was only Judge Bender,

13:37 - there was the other two on the panel did not join that right.

13:41 - I believe one joined in the result

13:44 - and one wrote a concurring dissenting opinion.

13:47 - There was well, I mean, there's no precedential opinion

13:51 - from the Superior Court in support of your position.

13:54 - Is there

13:55 - there's an unreported single judge opinion by Judge Bender,

13:58 - and that's correct, Your Honor.

14:00 - But we're relying on the the general concept of

14:03 - of joint use and acquisition as a constructive possession.

14:07 - Joint possession.

14:09 - Between two people when they,

14:14 - When two

14:15 - individuals simultaneously enjoy acquire possession of drug

14:19 - for their own use, intending only to share it together.

14:23 - The only crime then would be simple possession.

14:25 - And then thus there couldn't be a delivery between the two.

14:28 - But the, the transfer, the the furnishing of the drugs from Castle

14:33 - to Smith met the statutory definition of transfer.

14:38 - Isn't that correct?

14:39 - Well, I don't think it did, because you can't transfer

14:41 - between two people who jointly possess something.

14:45 - Is that is that correct?

14:46 - As a matter of law, don't the cases in the statute,

14:51 - indicate that,

14:53 - this meant delivery, in other words,

14:56 - or isn't your argument more with the,

14:59 - what the what the General Assembly has codified

15:03 - rather than with the court's handling of the case?

15:07 - Well, I don't I don't think it is because I think,

15:12 - I think a transfer requires a transfer of possession here,

15:15 - and we don't have that when two people jointly require

15:18 - drugs together and that's I mean, we can

15:22 - I don't even know if we can presume that's what happened in Castle, for example.

15:26 - We don't really have evidence of who obtained the drugs in this one.

15:30 - We both know that they showed up

15:33 - in the vehicle together at Chase Smith, the dealer's house.

15:37 - We don't know who got the drugs first.

15:40 - We don't know who or, handed drugs to whom.

15:43 - What we do know is, is that they decided to use together

15:47 - and they went and bought the drugs together.

15:50 - So. And I appreciate the Commonwealth view Brown as an unpublished decision.

15:54 - But it does rely on,

15:57 - factors set forth in the new Jersey Supreme Court case, state vs v Morrison,

16:01 - to assess facts that demonstrate joint, constructive possession.

16:06 - Be counsel. I'm not sure how you get there.

16:08 - I mean, delivery is defined as transfer from one person to another.

16:13 - And I don't think that it's, impossible to say

16:18 - that one in can in actual possession of something.

16:21 - Can transfer it to someone who also

16:25 - had constructive possession of it.

16:29 - But I think there were quite there's required to be a possessor transfer.

16:33 - And the reason that I say that is, is because, for example,

16:36 - in the case of Murphy, which I know the Commonwealth relied on,

16:42 - Murphy

16:43 - still required Murphy was a constructive transfer case.

16:46 - It wasn't an actual transfer case, but Murphy still required

16:49 - a shift in possession.

16:50 - So Cassels involved, like Cassels case involved no third party or agency.

16:56 - It was just two co users who showed up to Chase Smith's house.

16:59 - They bought drugs together and then they shared them back and forth.

17:03 - Under those circumstances, they both had the power

17:05 - and intent to control at the time they acquired the drugs.

17:08 - So there can't be any type of possessor transfer between the two.

17:12 - So under those circumstances, this court

17:17 - but council show it where in the statute is there an intent.

17:20 - The delivery is the physical act of transferring.

17:24 - That's what the statute says.

17:26 - You're trying to impute an intent to deliver.

17:29 - And that's not what is within this statute.

17:31 - Share with us why your argument gains more weight

17:35 - than the plain text of the delivery definition.

17:39 - Well, the drug delivery resulting in death statute requires a knowing delivery,

17:43 - so there has to be some knowledge that you were delivering something to someone,

17:48 - but you can't deliver something to someone if they already possess it.

17:51 - But how did how did it.

17:54 - Mr.. Mr.

17:55 - Castle,

17:58 - purchased the drugs from Chase Smith, and,

18:04 - he then your your client Castle

18:08 - then shared the drugs with Angelique.

18:12 - Angelique Smith, and she died.

18:14 - So he delivered them to her, right?

18:16 - It doesn't matter that they shot up together, right?

18:19 - It doesn't matter that that this is a sympathetic case.

18:23 - And and etc., etc., that the act of him furnishing her

18:29 - the drugs meets the statute, doesn't it?

18:31 - Well, I don't know.

18:33 - I don't think it does because I think

18:35 - I think the statute still requires a possessor re transfer

18:39 - and that that makes the most sense because it is in their possession transfer.

18:43 - You're using that phrase in a, very esoteric sense.

18:47 - I mean, the statute requires transfer from one person to another.

18:53 - It's a physical transfer.

18:56 - What what is not possessor about?

18:59 - I have something, and I give it to Justice Wecht.

19:04 - I'm transferring it.

19:05 - Not drug something other than something other than drugs.

19:08 - Well, yes.

19:10 - And I appreciate that.

19:11 - And I appreciate that question because

19:14 - there's a lot of obviously examples that have gone over

19:16 - into my head, through my head as to what I would use before this court.

19:19 - That makes sense.

19:20 - And I think the easiest way to explain it is, is if you two decided,

19:25 - and this is an example that I believe is used either in similar

19:28 - or a case that somewhere cites called Weldon.

19:30 - If you two decide to order a pizza together,

19:33 - you both have possession of the pizza.

19:36 - Once one of you takes possession of it,

19:38 - you both expect to have some of that pizza.

19:41 - So if you take the pizza and put it in front of you right next to each other,

19:45 - when Justice Walk takes a piece, he expects to have that piece.

19:49 - It's just not what it how. This statute.

19:52 - I don't think that's how the statute envisioned.

19:54 - Say I go to the door, I get the box of pizza, I bring it in,

19:58 - I put it on the table, and I say, here, have a piece of pizza.

20:02 - Under this statute I delivered,

20:04 - I transferred a piece of that pizza to my colleague.

20:08 - Now is it stingy?

20:11 - Should there be an exception for joint use?

20:14 - Maybe, but it's not here as I see it.

20:18 - Well, I would disagree that it's not here, because under Murphy,

20:21 - this court relied on the fact that there needed to be ownership

20:25 - by the individual who was directing somebody to transfer drugs. So

20:30 - this court does

20:31 - contemplate the fact that there is going to be a possessor transfer.

20:34 - And it relied on what the Superior Court said, and in in Murphy, by looking at

20:40 - definitions of what transfer means and it

20:44 - it looked at it as a possessor transfer.

20:47 - So if you look at what the Superior Court said, which this court actually said,

20:51 - it agreed with, it talked about,

20:54 - Dominion over the drugs in that case,

20:57 - it talked about possession and ability to convey.

21:00 - And you can't do that when both of you agree

21:03 - to purchase the drugs together and both contribute to it.

21:06 - And how did Castle not have Dominion when he bought the drugs from Chase

21:11 - Smith came back to the car,

21:14 - furnished them to Angelique Smith.

21:17 - Why does it matter that he and Angelique shot up together?

21:22 - He why?

21:23 - Why does his act not constitute delivery

21:26 - within the meaning of the statute first and castle's case?

21:29 - I don't know if it's exactly clear who, bought the drugs.

21:34 - I don't think that was made clear because Chase Smith didn't testify.

21:37 - The Commonwealth did make an argument that,

21:41 - Castle made a statement that

21:43 - he wet Angelique Smith use as much drugs as she wanted.

21:47 - But if they both decided to purchase the drugs together.

21:50 - And that is what happened here. Castle did.

21:53 - When she called Castle up and said, can you come and get me?

21:55 - Castle did ask her, do you want to use

21:58 - you don't have any precedent from any Pennsylvania court

22:01 - that that allows us to get into this joint decision making calculus.

22:07 - Do you?

22:08 - Because if we did, that would, take us down a rabbit hole of trying

22:12 - to figure out the thought processes of groups that are purchasing drugs?

22:17 - Well, I mean, I,

22:19 - I understand Your Honor is not impressed with the Brown decision

22:23 - as an unpublished decision.

22:24 - It's a single judge that there was Judge Vendor's opinion.

22:27 - Judge, Councilman sear, she concurred in the result.

22:31 - And Judge Collins concurred and dissented.

22:35 - So you have no.

22:36 - And that's an unreported decision in any event.

22:38 - So you have nothing there.

22:39 - I understand that.

22:40 - And now it's before this court, and this court

22:42 - would have to make a decision as to whether there's any way to

22:45 - to reconcile whether that's possible.

22:47 - I would say under that decision that there is,

22:50 - as I was starting to mention, that court did cite state v Morrison, which set out

22:55 - different factors to look at

22:57 - as far as what would demonstrate joint acquisition and use.

23:00 - And those were a whether it was a personal or commercial activity.

23:04 - The statements and the conduct of the parties,

23:06 - the degree of control exercised by one over the other,

23:10 - whether the parties traveled and purchased together,

23:12 - the quantity of drugs that they purchased and whether there was sole possession.

23:16 - And when you look at castle's case, Castle and Smith

23:19 - had an ongoing personal two year relationship.

23:22 - They knew each other well.

23:24 - They knew each other's habits and preferences,

23:26 - especially regarding drug use.

23:28 - So when Castle asked Smith if she wanted to use drugs

23:31 - and she said yes,

23:32 - the implication was there that they were going to get together and used together.

23:36 - That's the mutual plan to buy and used together that that's what they always did.

23:41 - It's a great test.

23:42 - That's an excellent argument to make to the D.A.

23:45 - on why you know, somebody should have gone into the DA's office

23:48 - and made that case, because this case was definitely overcharged

23:52 - and definitely over sentence,

23:53 - but I don't see how we could do anything about it on either end.

23:57 - And, you know, actually, the tests that you read would be

24:00 - an excellent exception to the statute that we currently have.

24:05 - I mean,

24:06 - we need to do a whole lot of,

24:10 - a whole lot of maneuvering,

24:12 - to read that kind of cast into the,

24:16 - clarity of the statute that we have.

24:20 - And I don't disagree with you.

24:22 - It's half

24:25 - but we can't actually do anything about that.

24:28 - In my opinion.

24:28 - My colleagues may not think that the statute, requires the reading is

24:34 - an actual physical transfer, but

24:38 - I think our case law supports that.

24:40 - Well,

24:41 - obviously, I would have to respectfully disagree with that, Your Honor.

24:45 - And we've talked about this a little bit, and I would still say that

24:48 - there is the opportunity that there is the requirement of accessory transfer.

24:53 - And we don't have that.

24:54 - When two people jointly agree to do this and that, this court could make a test

24:58 - such as the one that the new Jersey state Supreme Court adopted in Morrison

25:02 - to do that, in effect.

25:04 - So wouldn't we be rewriting the statute?

25:06 - Wouldn't we be legislating if we did that?

25:09 - I don't think you would be,

25:10 - because I think we have a concept of constructive possession.

25:15 - And one of the things that I mean, I would say is, is that

25:19 - obviously constructive possession when we're talking about drug

25:21 - delivery is something that the Commonwealth uses.

25:23 - And I argued in my brief that this is a sword versus a shield.

25:26 - Well, prior to the fact that there had to be a knowing

25:29 - delivery for drug delivery resulting in death,

25:32 - nobody is going to say, hey, I constructively possess drugs

25:35 - with this guy

25:36 - who was delivering them. They're not going to do that

25:38 - because they're implicating themselves in a felony.

25:40 - But when you have, everyone should do drugs alone.

25:42 - Then.

25:44 - Well, I'm that might not be the safest thing to do, but

25:48 - the point here is, is that if it requires a knowing delivery,

25:52 - then that would mean that joint possession is still on the table here.

25:56 - So under those circumstances,

25:59 - the courts

26:00 - can look and assess as to whether there is a,

26:04 - joint use and acquisition and whether that eliminates the first

26:07 - the element of delivery at all for proof, or whether there should be

26:11 - some form of an instruction given on joint possession.

26:15 - In both of these cases, there was joint possession.

26:19 - I'll talk briefly about the Scott case.

26:22 - But the Scott case, I think is even more clear because the drug deal

26:26 - took place in the vehicle with all three.

26:29 - Scott went and got the drug dealer.

26:31 - The drug dealer came back and got in the car with them,

26:33 - and the money flowed from Savage to Wandell.

26:36 - Savage is the victim to Wandell, who was his friend, to Scott, to the dealer.

26:42 - And the drugs flowed back from from the dealer to Scott.

26:47 - Scott's the middleman.

26:48 - How is that not delivering?

26:50 - Well, he's not the middleman because they agreed to go together

26:53 - and buy drugs, and they ended up using together.

26:55 - So they all contributed something to this.

26:57 - They, Savage, contributed money.

27:01 - Wandell contributed transportation.

27:04 - Scott contributed his

27:05 - knowledge of dealers. And,

27:08 - I think he even used

27:09 - a Suboxone prescription to buy something to cut the fentanyl with.

27:13 - And then he, contributed the location

27:16 - of where they could do drugs together, and that's what they ended up doing.

27:19 - So here, any actual possession was momentary and literally,

27:24 - as I understand the transcript here, the testimony of Wandell

27:27 - is Scott took possession of the drugs,

27:30 - handed them to Wando, and she handed some to Scott

27:33 - that was at best momentary possession under similar.

27:37 - And they all possess it at the same time, because they all had

27:40 - conscious dominion and intent to control those drugs together.

27:43 - They were all in the car.

27:44 - Together they all had equal access.

27:47 - They all.

27:48 - Can I just interrupt for one second?

27:50 - I, I think we're talking over each other in some respects.

27:53 - You're essentially asking this court to fashion us with their ski instruction,

27:56 - which would negate an element I guess, the element of transfer

28:00 - based upon some kind of joint possession or constructive possession theory.

28:04 - Have you submitted a proposed language for such an instruction

28:08 - and is that something that this court can do as opposed to something

28:11 - the General Assembly should should provide for a statute?

28:15 - We submitted a proposed jury instruction.

28:17 - I believe, in Castle.

28:18 - It was put in as an exhibit I.

28:20 - Is that part of the record here?

28:21 - It is part of the record in Castle.

28:23 - To be honest with you, I'm uncertain if we submitted an actual written request

28:27 - or if it was just discussed on the record in Scott.

28:30 - But it was discussed as to what a joint possession

28:33 - like instruction would be under these circumstances.

28:35 - Let me ask you this question.

28:36 - And because there is

28:37 - a lot of talk here about our role, as opposed to the General Assembly's role,

28:41 - the doctrine of joint possession or constructive possession,

28:44 - is that something that the

28:45 - General Assembly came up with, or is that is something that the courts fashioned

28:49 - in order to deal with situations where you had multiple people

28:53 - in close proximity to, say, a gun or drugs

28:57 - to justify a conviction where there was no actual possession.

29:01 - Well, constructive possession is, I believe, in a number of cases.

29:06 - That's called a legal fiction, and I'm presuming it was.

29:09 - It was developed by courts.

29:12 - So that's my point, because

29:13 - we're talking here about the General Assembly's role as opposed to our role.

29:16 - To my knowledge, constructive possession is something that the courts came up with,

29:19 - and it was came they came up with it to deal with the facts of

29:24 - multiple people in a room or multiple people in close proximity to either

29:28 - a gun or drug, something along those lines to justify a conviction.

29:33 - But the General Assembly didn't identify constructive possession.

29:36 - The General Assembly didn't identify or satisfy joint possession.

29:41 - That was something that the courts came up with, correct?

29:43 - Well, it is something that the courts came up with.

29:45 - And then I think under and I would say the courts came up with it

29:48 - because the courts had to find a way to deal with the concept that

29:52 - when somebody is not actually possessing something, they can't get a conviction.

29:56 - They came up, they they came up with it to expand criminal liability.

30:00 - Correct.

30:00 - Joint joint joint possession is you want to turn it into

30:04 - a theory to reduce liability,

30:08 - which would take a

30:09 - legislative enactment, an amendment to the statute, wouldn't it?

30:14 - No, I mean, I don't I don't think it would take an amendment

30:16 - to the statute because the courts had to come up with the theory to deal

30:20 - with just the concept of somebody not physically possessing something.

30:24 - And under the circumstances, as I already mentioned, nobody's

30:26 - going to cop to not possessing drugs that aren't in their possession.

30:30 - If it if it hooks on by the felony delivery.

30:33 - But in this case, the the legislature, the legislature knew

30:36 - about constructive possession and knew about joint possession.

30:39 - Those concepts have been around since before probably our first drug act.

30:44 - So when they know about it and they amend statutes

30:47 - to allow for an easier knowing delivery element,

30:51 - that doesn't change the fact that they're still in play as a concept.

30:55 - So I think this court can actually say when there is joint use and acquisition,

31:02 - the defendant is at least entitled to an instruction to do that.

31:04 - So the jury can properly assess, you know, kind of what

31:07 - we all intuitively understand, whether you want to make a, you know, by

31:11 - pizza example together or one of the various examples

31:14 - that were used in, somewhere where just passing drugs back

31:18 - and forth or passing a bond back and forth would be considered delivery.

31:23 - And I think that's why,

31:26 - one I'm presuming that's why this court took this case.

31:28 - And I do think this court can say that is a legitimate defense.

31:33 - The legislature doesn't have to enact anything for that to be viable,

31:37 - to be used to deal with delivery, for drug delivery resulting in death.

31:40 - They knew what they were doing when they amended the statute to a knowing delivery.

31:44 - They knew that these concepts were in place.

31:47 - They knew it was possible that somebody could actually say, hey, you know what?

31:50 - I didn't actually deliver drugs to this person.

31:52 - We went out and bought them together.

31:56 - All right.

31:56 - Well, you make a an ambitious argument and we'll take it under consideration.

32:00 - Can I just ask one more question?

32:02 - In the definition of, delivery under the Drug Act,

32:08 - it talks about the actual constructive or attempted transfer

32:11 - from one person to another as a controlled substance,

32:16 - whether or not there is an agency relationship.

32:20 - What does that mean?

32:22 - The agents, my understanding of the agency relationship language had to deal with

32:27 - in the 70s when there was this concept of a buyer's

32:29 - agent or a procuring agent, and they just,

32:33 - in essence, eliminated that aspect.

32:35 - As to you can't make a claim for yourself that you're just buying drugs

32:38 - for the buyer so that you're not part of the sale.

32:42 - And I don't think that really applies here,

32:44 - because when two people agree to buy drugs together, they are doing it jointly

32:48 - and they are possessing it jointly, whether one actually possesses

32:52 - the momentarily and one constructively possesses them, they both have a power

32:56 - and intent to control under a joint possession theory.

33:00 - But one has actual control.

33:02 - One has actual control as Cogs,

33:06 - but joint

33:06 - constructive possession only requires equal access.

33:11 - Sorry, equal access and and joint control.

33:15 - And under this court's decision in McComb

33:18 - and the Superior Court's decision in Gilchrist,

33:20 - it doesn't matter how much control there is, they just have to have some of it.

33:24 - So in the case of,

33:26 - Castle, where he let her use whatever

33:29 - amount of drugs they wanted, well, that cuts both ways.

33:32 - That indicates that she had some control to use the drugs and she had equal access.

33:37 - This all occurred in the vehicle together.

33:39 - So she absolutely had access to the drugs.

33:43 - Thank you, thank you, thank you, Mr.

33:45 - Tambourine.

33:46 - Now, let's hear from the district attorney's office.

33:49 - And, sir, would you pronounce your name for me?

33:52 - Some say it again.

33:54 - Some crypto bitch.

33:56 - Mr.. Some keto bitch.

33:57 - Welcome. Please proceed.

33:59 - Thank you, Your Honor.

34:00 - Madam Chief Justice, members of the court.

34:03 - My name is James.

34:03 - I'm Cato of the York County Attorney's office.

34:07 - Our position is that in this particular case, in addition to the fact

34:10 - that we don't believe that the exception that is attempting to be crafted

34:14 - here is appropriate, factually under this standard, to review being raised

34:18 - as a sufficiency of the evidence.

34:19 - The record in this case does not support the defendant's argument.

34:23 - The drugs in both of these cases were never jointly held.

34:28 - In both of these cases, the drugs were entirely by the individuals

34:32 - that finally delivered them until they were delivered.

34:35 - In the case of Mr.

34:37 - Scott, he was literally a purchasing agent

34:41 - that the two individuals, Miss Wandell and the victim,

34:45 - Zach Savage, brought in because the dealer they contacted, he was unavailable.

34:50 - And apparently, Mr.

34:51 - Scott was, since he was on the other end of the phone,

34:54 - the agreement was that they would take Mr.

34:57 - Scott into the city.

34:58 - They would he would buy their drugs for them.

35:01 - They would give him the money. He would give them their drugs.

35:03 - This is no different than if I offered to take one

35:06 - of my coworkers money to a coffee shop and buy them their coffee.

35:10 - Upon returning, I would give them their coffee and their change in the testimony.

35:14 - Specifically N.T.

35:16 - at 201, there was testimony presented that

35:19 - the drugs given to Wandell remained in one of those hands.

35:23 - Those drugs were used by Miss Wandell and Mr.

35:26 - Savage.

35:27 - Now, there would have been an argument

35:29 - in favor of this exception had the Commonwealth charged Mr.

35:33 - Wandell.

35:34 - Those two were truly in the same position.

35:36 - The Commonwealth, in its discretion, declined to charge miss Wandell.

35:40 - In the case of Mr.

35:41 - Castle, there's testimony.

35:43 - In fact, it's less testimony.

35:45 - It's the defendant's statement to police where he conceded, during the,

35:51 - statement to police that

35:52 - he gave her as much as she wanted in 2007.

35:57 - This is relevant because testimony was presented that

36:00 - miss, Angelique Smith was picked up by him by the defendant from rehab.

36:06 - At that time, she had no money. She had no cell phone.

36:09 - He possessed the only means to obtain the drugs.

36:13 - And that's where the Commonwealth's argument landed.

36:15 - And that's our belief why the jury found her guilty.

36:19 - To just just this weeks opinion about the sentencing.

36:21 - I do want to note that in Mr.

36:24 - Castle's case,

36:25 - there are extenuating circumstances that happened during the course of her,

36:30 - overdose and death, which are the basis for the malice

36:33 - for the third degree murder. That's why the sentence is so long.

36:35 - If it had just been a straight DRD, it's unlikely the judge would have imposed

36:38 - as strong a sentence as what finally came out.

36:41 - Counsel, are you of the opinion that there is room,

36:45 - in this statute for a defense of joint acquisition?

36:50 - In youth? It's just not this case.

36:54 - That's a fair argument.

36:56 - There is also a, argument

36:58 - that the current structure of the statute precludes this.

37:02 - Well, I'm asking you, does it or is there room

37:05 - within the statutory language for that defense

37:10 - currently, in light of the, small amount of medical marijuana statute,

37:14 - when you're reading the entirety of the drug delivery statute as a whole?

37:18 - Comparing the, 781 138 30 versus the 831,

37:24 - the 831 expressly includes a small amount rather than delivery,

37:29 - a transfer of marijuana

37:32 - under the 30g between users that is not for sale.

37:36 - By virtue of that provision in the small amount of marijuana.

37:39 - It demonstrates that the legislature had the ability to create this exception

37:43 - that is being advocate for for actual delivery of, in this case, fentanyl.

37:48 - In light of the fact that the legislature

37:50 - did not invoke its authority to create such an exception,

37:53 - the only out the only reasoning would be that

37:56 - the legislature did not create that an exception on purpose.

37:59 - So as of right now, given the current structure of the statute,

38:02 - that exception does not exist under Pennsylvania law.

38:05 - Mr.. Santa, Commission,

38:07 - what's your thoughts on this for their instruction at the Third Circuit gave?

38:12 - I'm sorry,

38:13 - how do you reconcile the Third Circuit's instructions with Gursky

38:16 - with the concept of joint and constructive possession?

38:21 - Let me give you a hypothetical,

38:22 - because you're going to argue the facts of the case,

38:24 - and we're not really an error correcting court.

38:26 - We've got to deal with other issues.

38:28 - You and I decide we're going to buy some crack.

38:30 - You go up to a crack house, we knock on the door,

38:32 - you and I pull our money together.

38:34 - I hand $20 to the crack dealer. He hands me.

38:37 - He hands me a little baggie

38:39 - where he hands you a little baggie of it, or six files in it.

38:41 - You immediately take three out and give me three and three.

38:45 - I smoke mine, I die.

38:48 - How does that reconcile with the joint constructive possession argument, Ernest?

38:51 - Risky. Do you think that should be punishable?

38:53 - Is transfer dangerous or drugs resulting in death

38:57 - for that?

38:58 - Your honor, I hate to say I would.

38:59 - I would have to find additional circumstances in order for us to prosecute

39:03 - that.

39:03 - That's a situation where our office would not exercise the discretion to proceed,

39:08 - much like we chose with Miss Wandell, where the defendant who was the

39:12 - the transact or with the the field dealer, you're

39:15 - talking about the exercise of discretion by a locally elected district attorney.

39:18 - I'm talking about whether or not the courts should allow a Swirsky

39:22 - type of instruction. Under Pennsylvania law,

39:24 - because of the joint and constructive possession argument.

39:27 - As of right now, given the structure of the statute,

39:29 - Your Honor, I would have to say no.

39:30 - The moment that the the items transfer from one person to another,

39:34 - a transfer does occur, an actual transfer, which is included

39:37 - in the definition of delivery.

39:39 - So not to make your argument for you, but you're arguing that the General Assembly

39:42 - recognize those types of transient or temporary kind of situations

39:46 - in the marijuana statute.

39:47 - The fact that they chose not to put it into this particular statute shows that

39:51 - they don't want it as a defense. Correct. Your honor.

39:57 - Any other questions?

40:00 - Thank you very much. Thank you both.

40:02 - Thank you. Good argument, both of you.

40:03 - Thank you.

40:09 - The next case the court is going to hear

40:11 - is called a lawyer versus Demand Building Corp..

40:15 - And this case, the court will be addressing how homeowners

40:19 - and builders handle construction defect disputes across the state.

40:24 - Pennsylvania has a law called the Statute of Repose.

40:28 - It says that after 12 years from when a building is finished, you can't

40:32 - generally sue the builder anymore, even if you discover a defect later.

40:38 - It's meant to give builders certainty and prevent

40:41 - lawsuits on very old projects.

40:44 - But Pennsylvania's law protects builders

40:46 - who lawfully perform that construction,

40:49 - and that single word lawfully is really what this case is about.

40:54 - In this case, the homeowners and a lawyer, a lawyer said that they discovered

40:58 - major structural problems in their home 12 years after it was built.

41:03 - Normally, that would mean the case is over.

41:05 - It's too late to sue.

41:07 - But the homeowners argued that the builder violated building codes,

41:11 - and if the builder violated building codes, then the work was not lawful.

41:17 - And if the work was not lawful, the builder shouldn't get

41:20 - the benefit of the 12 year statute of repose protection.

41:25 - The builder

41:26 - responded that lawful simply means we were licensed

41:30 - and authorized to build the code violations

41:33 - which happened in almost every project shouldn't wipe out the statute of repose.

41:38 - Otherwise, the 12 year cutoff would be meaningless.

41:42 - The case went to the trial court in Chester County, Pennsylvania,

41:46 - and the court dismissed the claims

41:50 - on the pleadings before the case went to trial.

41:54 - The homeowners then appealed to the Pennsylvania

41:57 - Superior Court, which had recently decided a similar issue

42:01 - in a case called Johnson versus Toll Brothers.

42:04 - And in that case, the court construed the word lawfully

42:08 - the way that the builders in this case have construed it.

42:12 - So now the issue is before the Supreme Court

42:16 - and the Supreme Court is being asked to determine

42:19 - whether or not the statute of repose should be construed

42:23 - the way the builders construe it, or whether the word lawfully

42:27 - means that the statute of repose does not apply in circumstances,

42:32 - as the plaintiffs claim here, where there are violations of the building code.

42:37 - And with that, we'll turn our attention to the courtroom, where

42:39 - we'll hear the arguments. Thank you.

42:43 - And this appeal by

42:44 - allowance, homeowners filed a civil action against the builder

42:49 - who constructed their residence more than 14 years after the construction

42:54 - had been completed, alleging damages resulting from the builders

42:58 - failure to comply with various building codes.

43:01 - The trial court granted the builders motion for judgment on the pleadings

43:05 - and dismissed the homeowner's action with prejudice,

43:08 - finding that it was time barred under the Statute of repose

43:13 - relating to construction projects in section

43:16 - 5536 of the Judicial Code,

43:20 - section 5536, bar civil actions

43:24 - brought against a person lawfully performing construction,

43:29 - filed more than 12 years after the completion of the construction.

43:34 - In doing so, the trial court interpreted the phrase

43:38 - lawfully performing construction as relating to a builder's

43:43 - general licensure or authority to act,

43:47 - rather than the builder strict compliance with regulations,

43:51 - ordinances, or other law while performing the construction.

43:56 - As such, the trial

43:57 - court concluded that the builder performed the construction of the homeowners

44:02 - residents lawfully under the statute of repose.

44:06 - Because the builder was licensed to perform the work,

44:10 - and certificates of occupancy had been issued for the property.

44:14 - Based on its recent decision in Johnson versus Toll Brothers,

44:19 - which interpreted the same challenged language

44:22 - of the Statute of repose, the Superior Court agreed

44:27 - with the trial court's interpretation and rejected the homeowner's contention

44:32 - that the builder was not entitled to the protection of the statute

44:36 - because their action alleged building code violations

44:41 - which rendered the construction of the home unlawful.

44:45 - Additionally, the Superior Court clarified

44:48 - that the period of repose commences

44:51 - on the date the construction is completed, which is the date

44:54 - that the certificate of occupancy is issued.

44:58 - We granted an order to examine the propriety

45:02 - of the Superior Court's ruling in this regard.

45:06 - Please proceed.

45:07 - Good morning, Your Honor. My name is Howard Backman.

45:10 - I represent the plaintiffs.

45:11 - Appellants?

45:11 - Thomas, a lawyer, and Amy Stimson.

45:14 - With me this morning are Jennifer Horn of the horn.

45:16 - Williamson law firm and Todd Bartos of the Bartos Group.

45:20 - Welcome,

45:21 - chief Justice Todd, and may it please the court.

45:24 - Pennsylvania's construction statute of repose,

45:27 - originally enacted in 1965, is unique throughout the United States

45:32 - because it is the only one that conditions the availability of repose

45:36 - on whether the defendant is lawfully performing construction.

45:40 - What does lawfully mean in this context?

45:42 - Both federal and state law prohibit the use of lead paint

45:47 - in the interior of a residence.

45:48 - If a licensed home builder is applying lead paint inside a home,

45:52 - is it lawfully performing construction according to the defendant?

45:56 - The answer is yes.

45:57 - No matter how unlikely that seems.

46:00 - Throughout the first 58 years of its existence.

46:02 - Mr. Benjamin, I just stop you right there real quick

46:04 - because I want to dig down on what you're saying.

46:07 - Lead paint.

46:08 - The type of paint would have to be approved by a local building inspector, right?

46:12 - In other words, we know how construction works.

46:14 - You submit plans to.

46:15 - Some plans are reviewed

46:16 - by the local ordinance to make sure they meet all building codes.

46:19 - If a contractor basically submitted,

46:24 - plans to build something, he said he was going to use lead paint,

46:26 - and that was in violation of building code.

46:28 - Wouldn't the building inspector say,

46:30 - you can't do that, and I'm not going to issue a building permit

46:32 - if you're using lead paint because it's illegal.

46:34 - My hypothetical is not that the plans included expressly stating

46:37 - that lead paint was going to be used, but that it ended up being used,

46:41 - and so that whenever a certificate

46:46 - is is whenever somebody goes to the municipality

46:50 - and asks for permission to build it, a building permit,

46:55 - they have to submit their plans.

46:56 - And they basically there's the plans to be reviewed by the building inspector.

46:59 - The building inspector reviews the plans and wants to make sure that they can.

47:02 - They comply with all of the building codes.

47:05 - The the first step, which is requesting the

47:09 - the permission to build a property, involves

47:12 - going to the municipality and and asking for,

47:17 - the permit, the building permit

47:20 - and the building permit that issues under the

47:24 - under the International Residential Code, which applies here in 2003,

47:29 - requires the builder to perform in accordance with the building code.

47:33 - And so if the builder is not performing in accordance

47:36 - with the building code, the builder is not performing

47:39 - in accordance with the permit that he received.

47:41 - And so these cases involve instances where the builder

47:46 - did not build according to code, even though they were required to do so,

47:49 - and now, looking back 20 years or so,

47:54 - in other words, here certificates of occupancy were issued.

47:59 - 2006 2007.

48:03 - No problems came before at that time.

48:08 - Water infiltration starts to be experienced

48:12 - by your client, but a later a later required or the property.

48:16 - In late 2018.

48:19 - So does the lawfulness not apply to the process of permitting

48:24 - that went on back in?

48:26 - Oh 607?

48:29 - Rather than looking back

48:32 - all these years later,

48:34 - justice worked.

48:35 - I think the answer to your question is, is that's, the issue is whether building

48:41 - code violations existed when the construction was completed.

48:45 - That's what the statute proposed.

48:46 - Speaks to question of whether the, process was undertaken lawfully at the time

48:52 - it was undertaken, rather than looking back after

48:56 - the repose period to fly back to the thing and see if

49:00 - if some, fault could be found in that suspect at the time.

49:04 - No, we don't agree with that in full.

49:07 - We do agree that, getting the building permit is necessary

49:11 - to obtain permission to obtain the benefit of the construction statue repose.

49:16 - But that that is not the end of the analysis.

49:18 - And and that's, the Superior Court erred in concluding that it was,

49:23 - in fact, under under the first 58 years that this construction statue of repose

49:27 - was in existence

49:29 - before the Superior Court issued its Johnson versus Toll Brothers decision

49:33 - in 2003, the statute of Repose was construed

49:38 - to require a home builders compliance with the minimum requirements

49:41 - of the applicable Building Code to be available.

49:43 - Those are decisions dating back to 1975.

49:46 - They're cited in the Brunson decision that we, included in our brief.

49:51 - The sky was not falling before Johnson, nor will it be falling again.

49:54 - If this court holds that lawfully performing construction requires

49:58 - complying with the law in the form of the applicable building code,

50:02 - the applicable building Code is the law that has been adopted by the jurisdiction.

50:06 - Mr. Ashton is sorry. Oh, it's,

50:11 - distinction to me between is the,

50:17 - is the contractor

50:19 - lawfully performing or performing those duties in a lawful manner,

50:23 - performing the construction duties, or is he lawfully entitled

50:28 - to perform the duties?

50:30 - I mean, I think you can argue this both ways, but,

50:34 - I, I think there really is a distinction there.

50:37 - Absolutely.

50:39 - Among the three things I hope to cover here this morning is precisely that point.

50:42 - What does lawfully mean?

50:45 - In addition, I hope to cover what our understanding

50:47 - nullify the statute of repose, which is what the other sides are arguing.

50:51 - We vehemently disagree with that.

50:53 - And then that's just props.

50:54 - And had a question

50:56 - is, is a failure

50:58 - of a contractor to build to code

51:02 - a deficiency in construction?

51:06 - I, I'm not sure I understand

51:08 - what the deficiency in construction term means. It.

51:12 - It's asking you.

51:13 - I'm asking you as we're standing here today and having a conversation

51:16 - right, is a failure to build something to code a deficiency and construction

51:22 - it it certainly could be.

51:24 - And it could certainly give rise to a client per se.

51:27 - Could be maybe if if a building is not built,

51:30 - the code that would be deficient construction.

51:33 - Correct.

51:34 - Well I guess yes, I'll, I'll accept that.

51:38 - But but I think that we recognize that there also has to be proximate

51:41 - cause existing damages.

51:44 - Well, if harm if the argument is that the,

51:49 - that the railing on a balcony on the upper floor of a home

51:52 - is not the proper height, which violates the, the building code.

51:56 - If if the damages that are being claimed

51:59 - as moisture infiltration in the basement of that property.

52:02 - That that I'm not.

52:03 - I'm sorry, I that's not look at causes of action.

52:06 - Right.

52:07 - Let's simply look at do you agree that, failure

52:11 - to build something to code is a deficiency in construction?

52:15 - I agree that it is unlawful

52:18 - conduct under the the code that was adopted.

52:22 - Don't agree that it's a deficiency.

52:24 - Well, I, I'm not sure if, Your honor is like focusing on language

52:26 - from some other provisions of the conversation, Mr.

52:28 - Backman, you know, I mean, I just trying to understand,

52:31 - I wonder you're intelligent, man. Are you ready?

52:33 - We have some high school students here who know what deficiency means.

52:36 - I'm just asking you if you agree that a failure to build something to code

52:40 - would be a deficiency in construction.

52:41 - Yes. Okay.

52:43 - If that's the case, how do you explain A1 which

52:47 - which specifically says you have to bring any claim

52:50 - for a deficiency in construction within the statute of repose period?

52:54 - Your construction that you're offering here would eliminate A1.

52:59 - We we don't agree.

53:01 - That's, that that's correct.

53:02 - And let me just grab my copy of the,

53:06 - the statute.

53:18 - Just bear with me for one more moment.

53:21 - Here it is.

53:25 - The so.

53:28 - So a itself requires that the person who was lawfully performing construction

53:32 - before you get to what it covers.

53:36 - And so, yes, a deficiency in the design,

53:40 - planning, supervision of construction or construction of the improvement

53:44 - would be covered if the builder was lawfully performing construction.

53:48 - You can't you'll never be able to bring it within the 12 you.

53:50 - You'll never be able to bring an A1 within 12 years.

53:53 - If under your view, you were never lawfully performing in the first place.

53:56 - That that is not correct for the following reasons.

54:01 - The construction statute of repose would not apply.

54:04 - As I explained earlier, where there's no proximate cause,

54:07 - where the claim is based on

54:08 - ordinary negligence as opposed to violation of the code,

54:11 - which plenty of claims are based on, where the claim is

54:13 - based on a violation of industry standards, where a claim is

54:16 - based on the failure to follow manufacturer instructions,

54:20 - where the claim is based on asbestos lead pipes,

54:23 - you want to say you want to have it both ways.

54:26 - You want to invoke a provision that's applicable only

54:30 - when the person is lawfully performing, but then you also want

54:35 - to make use of it on the theory that he's not lawfully performing

54:40 - if it has to be one or the other.

54:42 - So doesn't that suggest that lawfully

54:46 - performing means it wasn't some like, Buccaneer

54:49 - builder throwing up a, you know, a shack without permitting?

54:54 - It means was the thing built in accordance with the laws

54:57 - that govern at the time and

55:01 - and then you have to bring it with it.

55:03 - Then the 12 year repose period begins.

55:08 - Isn't that isn't that how it works?

55:09 - The the idea that the General Assembly

55:13 - in 1965 was trying to encourage builders to obtain

55:19 - permits and certificates of occupancy in order to gain the benefit

55:25 - of the statute of repose after 12 years seems unlikely,

55:29 - because you're if you're a builder that is not planning to

55:33 - announce that you're doing the building,

55:35 - having having the ability of the statue repose does not seem to be something

55:39 - that would encourage that entity to

55:42 - I think I think I would I would phrase it a different way.

55:47 - I think when the General Assembly created the statute of repose because they

55:51 - they wanted to have a robust industry for home building and construction

55:56 - available, and the industry lobbied for the statute of repose because

56:00 - unlimited liability would increase the value, cost of construction

56:04 - and things like that.

56:05 - A compromise was reached which, like, will create a statute of repose,

56:09 - where we're only going to protect the builders

56:10 - that are doing business legally, meaning they're

56:14 - they're getting all their permits, they're certified, they're licensed.

56:16 - We are not going to protect fly by night builders

56:20 - who come in and leave and have no licenses and no experience whatsoever.

56:24 - Those people, no statute, repose protection.

56:26 - We don't disagree that that's part of the inquiry.

56:29 - And and in fact, the General Assembly we know, was not seeking to provide

56:34 - repose to the greatest extent possible because it picked a 12 year period,

56:38 - which is one of the longer ones, and it included the word

56:41 - lawfully in the provision which did not exist anywhere else.

56:45 - But council does.

56:47 - It doesn't, that phrase, taken in context, meaning that the person

56:52 - who is authorized to perform whatever it was that,

56:58 - he was engaged in,

57:00 - and doesn't the permit authorized

57:03 - that person to

57:06 - perform.

57:09 - It it means that plus more

57:12 - and the more is what do you apply with the building work?

57:15 - From I mean, this language applies to the person, the person's

57:21 - ability, the person's qualifications, the person's

57:26 - license, authorization.

57:30 - It's a brought against

57:32 - any person lawfully performing.

57:35 - It's not concerned with the building per se.

57:38 - It's concerned with the qualifications or authorization of the person.

57:44 - We we think that the more natural and better understanding of the phrase

57:49 - lawfully performing construction is not merely licensure alone,

57:54 - but rather whether your act of performing construction is lawful in its details.

57:59 - And and if I can just explain that many, many years later,

58:05 - I mean, that seems to be more of a, of a,

58:08 - you know, in the limitations context, you have the discovery rule, right?

58:11 - So, so your, your theory of liability where you, you know,

58:15 - where you within that context would, could avail you in a discovery,

58:20 - you know, more something akin to this latent water thing.

58:24 - So you've got the discovery rule in limitations.

58:27 - Plus you don't have privity anymore.

58:30 - So in addition to those wins, you also want to get

58:33 - a win here to do away with the statute of repose.

58:37 - And so basically, these builders would never,

58:41 - you know, would never have relief from causes of action

58:44 - brought many years later under their theory, am I wrong?

58:48 - Well, I explained earlier, the very large number of scenarios

58:52 - where they would have the benefit of the statue of Repose.

58:55 - This only involves building code violations, which is the minimum,

58:58 - the minimum requirements that the law provides, and

59:02 - the question of whether this court should adopt some cramped,

59:07 - overly restrictive

59:08 - partial understanding of the word lawfully as defendant urges,

59:11 - instead of the most natural understanding the word lawful.

59:14 - I did a Westlaw search last night of preparing for the oral argument today.

59:17 - Most of my preparation was done before last night, I can assure you. But.

59:21 - But I searched in the Pennsylvania Statutes and Court Rules database for

59:24 - for the root lawful 2195 responses came back.

59:31 - The the defendant asked this court to hold, in essence,

59:34 - that someone who consumes eight shots of whiskey becomes intoxicated

59:39 - and then gets behind the wheel of a car is lawfully operating a motor vehicle

59:43 - so long as he or she has a driver's license, and the court in that

59:47 - Right to Farm Act case, whose result we don't have any quibble with.

59:52 - We're not asking this court to say that the Right to Farm Act case in Bradenton

59:55 - reached the wrong result.

59:57 - 731 But in a footnote there, the judge wrote that a simple illustration

01:00 - 06.402 will demonstrate the difference between what lawful means and legal means

01:00 - 09.005 and and said that if someone is speeding,

01:00 - 11.040 they are lawfully operating the motor vehicle,

01:00 - 12.909 but they're not legally operating the motor vehicle.

01:00 - 16.546 But if you look at Black's Law Dictionary and also this court's decision

01:00 - 21.284 in McCandless from 1893, which which is cited in the briefing,

01:00 - 24.621 but both of those resources

01:00 - 29.726 present the definition, the definition of lawful as more

01:00 - 32.028 as encompassing

01:00 - 35.031 many more things than just the word legal, which is more narrow.

01:00 - 40.803 And so when the court in Branton said that someone driving above the speed

01:00 - 44.140 limit is lawfully operating the motor vehicle, it got it just backwards

01:00 - 46.409 and just stopped there.

01:00 - 49.846 And so as I understand what you're arguing, is that any building

01:00 - 52.849 code violations that

01:00 - 57.754 occur or in place after 12 years would be actionable

01:00 - 01.124 under your reading of the statute, is that both latent

01:01 - 05.828 violations or any violations?

01:01 - 07.296 Well, obviously,

01:01 - 10.800 it is certainly latent violations because the statute of limitations

01:01 - 14.871 this case was decided at the at the judgment on the pleadings stage.

01:01 - 18.941 And, and so, if, if there was a violation

01:01 - 23.479 that was obvious to the home owner, as I understand your complaint,

01:01 - 28.484 the violation in this case was that the stucco didn't go,

01:01 - 33.022 went all the way to the ground instead of four inches above it.

01:01 - 38.194 So to my understanding, if you looked at the wall, you would see

01:01 - 42.732 whether the stucco was four inches above ground level or all the way to the ground.

01:01 - 44.801 So it's not a latent defect.

01:01 - 47.804 And why should on a, an

01:01 - 51.474 what I'm assuming is an obvious condition,

01:01 - 56.212 why should you be giving more than 12 years to define to claim it?

01:01 - 59.215 I, I agree with that 100%.

01:01 - 01.050 But it's important to know

01:02 - 03.953 that the complaint in this matter and the operative pleading

01:02 - 08.491 is the second amended complaint alleged numerous code violations

01:02 - 11.894 and also said that those were just by way of example.

01:02 - 16.532 And the fact is that someone can't look at a building from the outside,

01:02 - 19.035 meaning the building inspector, when the construction is finished,

01:02 - 20.970 you can't look at a building from the outside

01:02 - 23.539 and see the stucco and know that there were three.

01:02 - 27.677 The necessary three layers were put on that the stucco is of the necessary

01:02 - 31.214 thickness, that the water barrier

01:02 - 34.450 that's supposed to be under the stucco consists of two layers versus one.

01:02 - 39.655 And so it's our argument that if the builder only puts one layer,

01:02 - 44.627 one impervious layer on the building, it's not lawfully performing construction

01:02 - 48.297 while it's doing it, not responding to their present tense, past tense argument,

01:02 - 52.301 or if it only puts on two coats of stucco and not the third, it's

01:02 - 56.973 never lawfully performed construction, as I was saying, but efficient, Mr.

01:02 - 59.275 Bash, it's it's it's deficient.

01:02 - 02.278 But that but that part that that's subpart one

01:03 - 05.548 only applies if you have the benefit of it which is lawfully performed.

01:03 - 06.649 But I, I want to

01:03 - 10.820 I want to ask you that question, what you said you're arguing a limited

01:03 - 14.924 exception or limited definition of lawful right.

01:03 - 18.060 I'm saying they're asking for the most limited on the other side.

01:03 - 20.329 Okay.

01:03 - 23.332 What deficiencies in construction

01:03 - 26.969 would still have to be brought within the statute of repose period?

01:03 - 30.373 Ordinary negligence,

01:03 - 33.376 violation of industry standards.

01:03 - 35.545 Why is the violation of industry standard has to be.

01:03 - 37.413 That's the same thing as a code violation.

01:03 - 39.816 No, it's it it is not.

01:03 - 42.819 The code is minimum standards only.

01:03 - 47.223 The next the next category is not following instruction manuals.

01:03 - 52.662 And then I also described a whole bunch of different particular types of claims.

01:03 - 55.665 Aren't those negligence claims?

01:03 - 57.033 Yes, they're negligence claims.

01:03 - 00.603 And so I'm telling so so explain to me again.

01:04 - 04.540 So deficiencies in constructions include negligence claims.

01:04 - 08.911 What deficiencies in construction claims have to be brought

01:04 - 13.683 that are not part of lawfully performing in your scenario.

01:04 - 16.319 Are you asking me now

01:04 - 19.856 whether someone can behave lawfully while they're performing negligently?

01:04 - 23.459 I yeah, that's what I'm trying to understand because why would

01:04 - 27.096 the General Assembly say all deficiency of construction claims

01:04 - 30.466 have to be brought within the statute of repose period

01:04 - 34.770 and then turn around and say, but certain deficiency in construction

01:04 - 38.007 claims don't have to be brought within, within the statute repose period.

01:04 - 39.375 That's what I'm trying to understand.

01:04 - 42.044 Let me give a two part answer that the first part's very quick.

01:04 - 44.847 Our argument is not the negligence that that negligent

01:04 - 48.784 behavior violates the law as used in the construction statute.

01:04 - 51.454 Repose, the same way that someone wouldn't say that.

01:04 - 55.057 That someone who is negligently,

01:04 - 01.264 Driving a car

01:05 - 05.468 is necessarily violating the law or negligently,

01:05 - 07.503 building something

01:05 - 10.940 is is violating unless unless it violates the minimum standards.

01:05 - 16.445 And, and and then we also know that the building codes are

01:05 - 21.450 part of the law that the municipal, the municipality has adopted.

01:05 - 26.022 And then thirdly, we know that the General Assembly in 1937

01:05 - 30.393 enacted a statute which we cite in our brief section 4102,

01:05 - 35.264 which says that violation of building codes equals unlawful

01:05 - 38.834 construction that may be restrained by the municipality.

01:05 - 40.836 And it's just let mean, let me stop you there.

01:05 - 44.941 And I may have missed this in the record did was Parkland Township

01:05 - 47.944 issue building code violations?

01:05 - 50.513 Do they issue building code violations for this property?

01:05 - 51.213 Yeah.

01:05 - 54.216 I mean, your claim is based upon this alleged stock object.

01:05 - 57.320 You keep talking about building code violations, building code violations.

01:05 - 59.588 Building code violations are issued by township

01:05 - 02.325 officials are either the code official or the building inspector.

01:06 - 03.292 Were they issued in this case,

01:06 - 05.661 they were not issued.

01:06 - 08.130 But can I respond further to your question?

01:06 - 12.268 The building code itself says that even where a certificate of occupancy issues

01:06 - 15.204 and the Superior Court decision recognizes this as well,

01:06 - 18.741 that that is not conclusive proof that there were no building code violations.

01:06 - 20.810 And the reason is, if you look at the building code,

01:06 - 24.113 the inspector only has to be there at specific instances.

01:06 - 27.917 And so defects in the building envelope, which is the term that describes

01:06 - 31.220 what keeps the inside of the house separate from the outside of the house

01:06 - 34.857 cannot be observed once the house

01:06 - 37.994 has been built over the that building.

01:06 - 38.828 Understand that.

01:06 - 41.397 But you keep arguing about building code violations.

01:06 - 44.066 The only people that are authorized to issue a building code

01:06 - 47.069 violation is a code official or the building inspector.

01:06 - 50.239 You. Earlier, in response to my other question, you cited the IRC.

01:06 - 54.744 The IRC even says that if you take a look at page 33 of the IAC,

01:06 - 58.047 it says that the building an international residential code is clear.

01:06 - 02.318 It is up to code officials and building inspectors only, and not private

01:07 - 05.955 plaintiffs, to determine whether a provision of the IRC has been violated.

01:07 - 10.459 You keep citing the IRC and claiming a building code violation

01:07 - 13.796 where none have been issued, even to even trigger the statute of repose.

01:07 - 17.066 But ultimately, it's going to be a court

01:07 - 20.069 that decides what whether the law has been followed or not.

01:07 - 22.138 The court, it's it's ultimately if you're saying there's

01:07 - 25.875 a building code violation, it's ultimately up to the township officials

01:07 - 29.812 who perform building code inspections to issue a violation or not.

01:07 - 32.481 We can't do it. No Court of Common Police can do it.

01:07 - 35.618 No, my argument is not that some building code

01:07 - 37.987 violation had to have been issued by the municipality.

01:07 - 40.990 Obviously that did not occur in this case,

01:07 - 44.260 but when an expert comes in to a case

01:07 - 48.330 and says that the property suffered from these building code violations

01:07 - 52.568 that were not spotted by the inspector, who's only there at limited times.

01:07 - 57.173 And, and we know that, I, I think the argument can't be made

01:07 - 00.376 that just because every house has had a, has had the certificate documents

01:08 - 03.345 taken in other direction, if I think there's a building code

01:08 - 06.415 violation in my house, the first person I'm going to call is not Howard Backman.

01:08 - 08.250 With all due respect,

01:08 - 11.220 or Miss Horne or anybody else, first person, I'm going to call

01:08 - 14.123 the Philadelphia Building inspector to come out and inspect

01:08 - 16.892 and see whether or not there's, in fact, a violation of the building codes.

01:08 - 19.428 I'm not going to call the plaintiff's lawyer

01:08 - 22.598 and fire hire an expert to come out and say, well, there is a violation.

01:08 - 25.801 And even even if there is, the first person I'm going to call after

01:08 - 29.238 that is going to be the building code inspection to issue the violation.

01:08 - 32.408 That seems to be the predicate to me, because your argument is based upon

01:08 - 35.644 alleged violations of the building code.

01:08 - 40.082 My my client has to prove a building code violation to prevail on its claim.

01:08 - 41.684 We acknowledge that.

01:08 - 44.987 And that's the way that court cases proceed.

01:08 - 50.059 The fact that there's this administrative aspect to it is not the final answer

01:08 - 53.462 to whether a building code exists or not in a court of law.

01:08 - 56.866 I appreciate Your Honor's point, which is that, the hope

01:08 - 00.603 is that the building inspector would discover building code violations.

01:09 - 05.107 But we know as a fact that certificate, a certificate of occupancy,

01:09 - 08.611 has been issued for every residence in Pennsylvania, presumably.

01:09 - 12.648 And and this court cannot say that definitively prove

01:09 - 16.085 that every residence in Pennsylvania has been constructed.

01:09 - 19.388 Let me ask you, I'm thinking about the implications of your argument.

01:09 - 23.792 It isn't there, isn't there to taller G in this,

01:09 - 28.631 The you want to

01:09 - 31.600 you want to say,

01:09 - 34.837 that,

01:09 - 37.106 this you

01:09 - 41.977 the whole theory of your complaint is something was done unlawfully and,

01:09 - 45.581 by definition, and it's premised on the theory

01:09 - 49.118 that way back then, something was not lawful.

01:09 - 53.088 So it seems like your your whole attempt to avoid

01:09 - 57.259 the statute of repose collapses the two together.

01:09 - 02.331 In other words, you assert this cause of action on the basis

01:10 - 07.570 that something's been done unlawfully and its premised in turn on the theory

01:10 - 13.442 that way back when, in 2006, something was done unlawfully.

01:10 - 17.012 Correct? It it it's tautological.

01:10 - 20.216 It it the attempt to avoid the statue

01:10 - 23.219 repose, I think, veers into absurdity, doesn't it?

01:10 - 25.387 I I'm not sure.

01:10 - 29.225 I mean, I, I guess one of the questions I was expecting to receive today possibly

01:10 - 29.892 is, you know, what?

01:10 - 33.462 If somebody brings a suit 30 to 50 years

01:10 - 37.366 after the construction was completed, 200, 200 years.

01:10 - 37.800 Right?

01:10 - 40.903 How does somebody prove that that was done unlawfully?

01:10 - 46.141 And, I think my response is there are, you know, if you can prove

01:10 - 49.278 that the code was violated, if the code existed,

01:10 - 51.480 at the time that the construction occurred,

01:10 - 55.517 then then you would have a claim under the statute of that, you have a claim.

01:10 - 58.487 I mean, this is a statute of repose.

01:10 - 03.392 This is not a statute of limitations that we're we're applying the discovery rule.

01:11 - 08.130 We we understand that statutes of repose can have harsh consequences.

01:11 - 11.133 But we also believe that here

01:11 - 15.838 the General Assembly adopted a statue of repose that included this word

01:11 - 20.075 that was not used anywhere else in the context where registration

01:11 - 25.814 and and even permits were not required throughout the Commonwealth.

01:11 - 27.583 In 1965.

01:11 - 32.254 And if the General Assembly wanted to say if the if the builder or architect

01:11 - 34.023 is licensed or permitted,

01:11 - 38.160 those those were terms that were known and available in 1965,

01:11 - 42.031 and would have avoided the whole issue of what lawfully means

01:11 - 46.535 lawfully, can have the very narrow argument that the other side suggests

01:11 - 52.741 it should have, but we believe it should have its proper, full understanding.

01:11 - 54.176 Why it why, Mr.

01:11 - 56.612 bash, let's assume this statutory construction case.

01:11 - 00.582 Let's assume the term is ambiguous.

01:12 - 04.119 What statutory construction principles

01:12 - 08.457 would you have us apply to say?

01:12 - 13.195 Number one, your interpretation is reasonable

01:12 - 17.933 and two is the represents what the General Assembly intended.

01:12 - 19.368 Right.

01:12 - 25.174 And and so we begin with 53 Pennsylvania statutes, 41 and two,

01:12 - 30.479 which is the Municipal Housing Ordinance authorization law enacted in 1937.

01:12 - 31.213 Where are you beginning?

01:12 - 34.316 There wasn't amended with this statute in the statute.

01:12 - 34.950 But what I'm saying

01:12 - 38.487 is that the term unlawful construction was used in that earlier statute.

01:12 - 43.559 And and here it says lawfully constructing it does not say lawfully constructed.

01:12 - 45.027 It says lawfully performing.

01:12 - 49.765 It says any person right lawfully performing.

01:12 - 55.304 And what you're doing is you're collapsing a and a one.

01:12 - 58.941 I mean, as I read this, tell me, tell me what I'm missing here

01:12 - 02.711 as I read this statute of repose, something I'm not a real fan of.

01:13 - 05.447 But here's how I read the Statute of Repose.

01:13 - 08.450 It says if A, a, a, and

01:13 - 11.520 a person is lawfully performing,

01:13 - 15.090 construction,

01:13 - 19.061 then that person is protected

01:13 - 22.064 by a 12 year statute of repose

01:13 - 25.801 from any deficiency in his performance.

01:13 - 30.272 You want to collapse those two things?

01:13 - 34.710 I mean, this anticipates somebody is authorized to perform

01:13 - 39.648 if they are so authorized to perform, they're getting a ride.

01:13 - 40.983 After 12 years.

01:13 - 47.089 You can't sue them after 12 years for any deficiency in that construction

01:13 - 51.927 that was performed pursuant to an authorized construction person.

01:13 - 56.432 Our point is that that is part of it,

01:13 - 00.235 but that lawfully is an adverb that modifies performing.

01:14 - 02.738 There you go. That's the nub, isn't it?

01:14 - 03.071 Right?

01:14 - 07.209 It's not a person so lawfully doesn't modify a person.

01:14 - 08.977 That's what we're going to decide.

01:14 - 11.013 And perhaps, next year, Mr.

01:14 - 15.417 Davis will bring his English class to try to discern,

01:14 - 18.720 which modification, which adverb,

01:14 - 21.423 which phrase the adverb is modifying.

01:14 - 24.426 But we understand your argument, and it's very well done.

01:14 - 26.728 Are there any other questions for Mr.

01:14 - 28.096 Bastiaan?

01:14 - 30.599 All right. Thank you so much. Thank you.

01:14 - 33.502 Here from, your opposing counsel.

01:14 - 40.576 Mr. Coyle.

01:14 - 57.125 Madam Chief Justice,

01:14 - 00.929 this is going to expertly perform your oral argument.

01:15 - 05.334 Are you going to argue to us in an expert manner, or do you lawfully

01:15 - 08.670 have a license?

01:15 - 09.638 I have a bar license.

01:15 - 12.641 So I am lawfully performing this order for you this morning.

01:15 - 14.109 May it please the court?

01:15 - 15.677 My name is Casey Coyle.

01:15 - 17.412 I represent Diamond Building Corporation.

01:15 - 20.415 This appeal, I'm joined save my co-counsel, Blair Granger

01:15 - 22.417 of the Granger law firm.

01:15 - 23.719 At first glance honors.

01:15 - 26.722 This appears to be a statutory interpretation case.

01:15 - 30.893 But upon further review, it's really an attempt to revive expired claims

01:15 - 34.062 through judicial nullification of the construction statute.

01:15 - 35.364 Repose.

01:15 - 38.500 Section 5536 is undisputedly statute repose.

01:15 - 42.471 It was enacted by the General Assembly to extinguish all liability for alleged

01:15 - 43.705 construction defects.

01:15 - 46.942 12 years after completion of construction of an improvement

01:15 - 50.012 to real property, safe to limited exceptions in the statute

01:15 - 54.182 and for the last 60 years, courts you have this Commonwealth have faithfully

01:15 - 58.820 applied section 5536 or its predecessor as the jurisdictional bar.

01:15 - 00.956 It was intended to be protecting

01:16 - 04.526 architects, carpenters, engineers, home builders, roofers,

01:16 - 08.730 plumbers and others in the construction industry, union and nonunion alike.

01:16 - 10.999 From indefinite liability.

01:16 - 13.335 What you just heard from opposing counsel claims

01:16 - 16.371 do not want there to be an end date for construction defect claims.

01:16 - 21.076 Instead, they want to convert section 5536 into a statute of limitations

01:16 - 24.947 where by a mere code violation tolls the running of the 12 year

01:16 - 27.950 repose period until some unknown future date.

01:16 - 32.187 But plaintiff's never ending liability theory cannot withstand scrutiny.

01:16 - 37.593 First place interpretation is antithetical to the entire concept over post,

01:16 - 40.562 which is to provide a firm definitive date

01:16 - 43.732 after which a defendant is assured no liability whatsoever.

01:16 - 44.733 Well, that argument,

01:16 - 48.570 though, presumes there are no exceptions ever to a statute of repose.

01:16 - 50.238 And there are there are, Your Honor.

01:16 - 54.643 But but we're not invoking any enumerated statutory exceptions here.

01:16 - 59.114 Secondly, plaintiffs entire argument is based on a syntax error

01:16 - 03.118 because the dispositive phrase is not lawfully performed.

01:17 - 03.852 Past tense

01:17 - 06.955 doesn't appear anywhere in the statute

01:17 - 10.559 it's lawfully performing or furnishing in the present tense.

01:17 - 15.197 Third, plaintiff's view disregards the actual language of the statute

01:17 - 19.735 as section 5536 plainly keys the commencement, the repose

01:17 - 23.171 period on the completion of the construction, and nothing else.

01:17 - 26.875 Fourth, it violates the basic rules of grammar.

01:17 - 29.911 And I'm a visual learner, so I'm going to take out my copy of the statute.

01:17 - 32.114 Let's start with the structure of the statute.

01:17 - 33.482 There's three sub parts.

01:17 - 36.485 So part a general rule be the exceptions.

01:17 - 38.253 See the limitations.

01:17 - 42.391 The specific language here appears in a general rule not in be.

01:17 - 43.825 Why is that important?

01:17 - 46.828 Because in the reply brief, plaintiffs suggest that the term lawfully

01:17 - 50.098 was really intended to be a latent defect exception.

01:17 - 52.334 That's contrary to the structure of the statute.

01:17 - 54.670 Let's go to the dispositive

01:17 - 58.807 phrase against and subpart F, and that's the phrase,

01:17 - 02.811 as the court has noted, any person lawfully performing or furnishing.

01:18 - 05.681 Let's break that down

01:18 - 06.314 person.

01:18 - 09.317 That's a noun lawfully, that's an adverb.

01:18 - 13.055 And the phrase performative furnishing, those are the verbs.

01:18 - 14.923 And there are present participles.

01:18 - 15.724 And by definition,

01:18 - 18.727 a present participle connotes an action that's not yet complete.

01:18 - 19.995 It's ongoing.

01:18 - 22.397 I'm not sure I remember the present participle.

01:18 - 24.700 So I was okay when you were on the adverb.

01:18 - 26.368 I had to brush up on myself.

01:18 - 28.937 Your honor, for today's presentation.

01:18 - 30.572 But. But why do we start there?

01:18 - 34.309 Because we know lawfully modifies performing or furnishing

01:18 - 37.713 what it doesn't modify is construction or improvement.

01:18 - 41.516 The word construction appears 11 words later in subpart,

01:18 - 44.786 and improvement appears 16 words later.

01:18 - 47.789 So we just focus singularly on the phrase

01:18 - 52.861 we know that lawfully right modifies this action.

01:18 - 54.763 And I think, Your

01:18 - 57.766 Honor, that Justice Ani was hitting on it's the person,

01:18 - 02.370 it's the status of the person performing action and lawfully.

01:19 - 03.338 Right.

01:19 - 07.375 Since 1830 1893, this court has distinguished

01:19 - 11.513 lawfully and legally in the dictionary definition of lawfully at the time

01:19 - 14.516 this statute was passed is authorized by law.

01:19 - 16.051 It's not legally.

01:19 - 18.920 It doesn't mean in strict conformance of the law,

01:19 - 21.723 which in essence is the argument the plants are proffering.

01:19 - 23.925 You've got to comply with the building code

01:19 - 26.962 in order to avail yourself of the construction statute.

01:19 - 28.330 Repose.

01:19 - 30.832 That has no dramatic basis at all.

01:19 - 32.534 But let's go to A1 just as props.

01:19 - 34.202 And you brought up A1.

01:19 - 39.474 There is no daylight between a design defect and a construction code violation.

01:19 - 40.675 There one in the same.

01:19 - 43.411 And so under their argument

01:19 - 47.349 A1 is essentially mere surplus, which I mean just every, every,

01:19 - 52.854 every almost every negligence action against a contractor

01:19 - 57.092 usually includes an argument that the standard of

01:19 - 00.595 care was the building code, or the electric code

01:20 - 04.833 or some other kind of code that set forth the standard of care.

01:20 - 05.300 Correct.

01:20 - 08.303 Your honor, when I'm driving at that point home is they're saying

01:20 - 12.040 that a construction code, deep code compliance are built to code.

01:20 - 15.110 Both would implicate A1

01:20 - 18.113 and implicate the word lawfully that that appears above.

01:20 - 21.583 Again, there's no textual support for that whatsoever.

01:20 - 24.152 Now A1 has been rendered mere supply.

01:20 - 27.823 But let's go back up to support in the phrase within 12 years

01:20 - 30.826 after completion of construction of such improvement,

01:20 - 33.228 that's it's pretty clear.

01:20 - 35.230 That's certainly not ambiguous.

01:20 - 38.233 And what they're essentially doing now, we're writing that out of the statute

01:20 - 40.302 that doesn't apply because we're going to toll it.

01:20 - 43.071 We're going to suspend it until some future date.

01:20 - 46.741 You come into court and you establish it was code compliant under the code

01:20 - 48.410 that appeared at the time.

01:20 - 50.946 But even this idea of code compliance

01:20 - 53.949 rate codes haven't existed since the beginning of time.

01:20 - 56.852 So no definition is going to exempt any structures

01:20 - 58.920 built before the adoption of a code.

01:20 - 00.856 It may seem, but that's preposterous. Premise.

01:21 - 02.324 Why are you bringing it up?

01:21 - 05.360 Because over a quarter of the occupied housing units in Pennsylvania

01:21 - 09.231 were built before 1940, before code, even existed.

01:21 - 12.934 The other obvious flaw in their argument

01:21 - 16.371 it exempts professionals which are subject to the building code,

01:21 - 20.642 like architects, architects aren't subject to building code.

01:21 - 23.712 They also argue in the reply brief after three

01:21 - 26.715 different interpretations of the word lawfully in their principal brief,

01:21 - 31.052 that it really means properly licensed and code compliant.

01:21 - 33.355 Well, now, if we're talking about licensure, well,

01:21 - 37.292 now we've exempted carpenters because carpenters aren't required to be licensed.

01:21 - 38.627 And guess what?

01:21 - 40.662 We've also exempted homebuilders

01:21 - 42.197 because there's no

01:21 - 45.200 state statute that mandates that homebuilders are licensed.

01:21 - 46.167 Right.

01:21 - 48.770 Their argument collapses on itself.

01:21 - 50.672 And it's just as what you were saying,

01:21 - 53.842 I think artfully, what they're really doing is collapse.

01:21 - 56.845 Or did you say in artfully, artfully, oh, but I,

01:21 - 59.347 I talk quickly, so forgive me.

01:21 - 02.350 You said it. Our,

01:22 - 05.020 but you hit the nail on the head justice work.

01:22 - 05.553 What they're doing

01:22 - 09.257 is collapsing the jurisdictional bar with the merits analysis.

01:22 - 11.192 Right. They're merging them into one.

01:22 - 14.262 And the import of that is now the statute inapplicable.

01:22 - 18.867 Because if there isn't a code violation, well, guess what, then?

01:22 - 22.771 Defendant isn't liable on the merits, and we don't have to worry about the defense.

01:22 - 26.675 But if there is a code violation, well, defense doesn't apply.

01:22 - 32.647 So functionally, now we've written section 5536 out of existence

01:22 - 36.584 that is the import of what they're asking this court to do.

01:22 - 39.688 And if there's going to be an exception beyond the two

01:22 - 43.124 that are enumerated in this statute, the proper place for that to be

01:22 - 46.227 decided is with the General Assembly, not with this honorable court.

01:22 - 51.733 I will note what you said in a brief.

01:22 - 54.069 My comments are limited to the second question presented.

01:22 - 57.072 If you think the first question was and it has been been waived,

01:22 - 00.575 it was not separately briefed by plaintiffs in the principal brief.

01:23 - 01.910 It wasn't even meaningfully brief.

01:23 - 05.313 There's a single line in there in the initial brief on the point.

01:23 - 08.850 And as I think justice McCaffrey was sitting on

01:23 - 11.886 a certificate of occupancy,

01:23 - 14.422 it has to start the clock right now.

01:23 - 17.392 Also has to prove authorization because

01:23 - 21.229 it's sort of look at the reports,

01:23 - 24.866 record pages 293 33012302.

01:23 - 27.902 Look at the actual terms of the CEOs are issued here.

01:23 - 29.671 It says that it was built up.

01:23 - 31.806 I don't want you to misinterpret something I may have said

01:23 - 34.909 in the form of a question, but is it your position that it starts

01:23 - 37.579 during the issuance of the certificate of occupancy,

01:23 - 40.749 or at the time of the issuance of the building permit, which obviously

01:23 - 44.452 is going to predate that because I'm just looking at the statute,

01:23 - 47.889 I understand position lawfully performing the construction services.

01:23 - 49.391 That would seem to indicate to me that

01:23 - 52.727 the issuance of a building permit

01:23 - 56.131 basically cloaks the construction, and lawfully performing

01:23 - 00.001 the certificate of occupancy is issued once the construction is completed,

01:24 - 01.669 the building inspectors come out

01:24 - 05.040 and make sure that it was constructed in accordance with their building codes.

01:24 - 07.575 It's a good question. Let me clarify.

01:24 - 08.877 So let's start with the building permit.

01:24 - 09.210 You're right.

01:24 - 12.313 Building permit is going to go to the authorization that phrase lawfully

01:24 - 15.984 performing or furnishing spot on that that is initial.

01:24 - 19.087 That's that's proof that that defendant is is

01:24 - 22.090 lawfully performing the service at the time they're rendered as.

01:24 - 25.093 Also we argue with licensure in the case of an architect

01:24 - 29.330 or an engineer, licensure could also establish that what makes the CEO unique

01:24 - 33.134 is it both satisfies that prong to lawfully perform your furnishing.

01:24 - 37.305 And it starts within 12 years after completion of such construction,

01:24 - 40.742 because what the CEO does, it's retroactive proof.

01:24 - 44.646 And again, look at the cost issue here that says this was performed according

01:24 - 47.649 to the building code and performed for me,

01:24 - 50.418 with the permit and local ordinances.

01:24 - 54.222 And we know pursuant to building code that the code is a requirement

01:24 - 57.926 for further use or occupancy of a residential house.

01:24 - 02.263 And so the CEO is unique in that it can satisfy two elements of the statute.

01:25 - 04.666 But a building permit, most certainly, Your Honor,

01:25 - 08.269 would satisfy the lawful performance or furnishing language.

01:25 - 11.606 Let me spring to my trap on you like you've fallen into my trap.

01:25 - 12.207 Okay, Mr.

01:25 - 17.312 Coyle, I've seen situations in the past representing municipalities and townships

01:25 - 20.315 where the certificate of occupancy has been issued.

01:25 - 24.385 Five, ten years later, new homeowners come in and they have a problem.

01:25 - 25.487 They call the building inspector.

01:25 - 27.388 Building inspector comes out and says

01:25 - 30.692 this wasn't constructed according to code, and they issue a building.

01:25 - 31.693 But the citation.

01:25 - 34.562 How do you reconcile that?

01:25 - 35.196 Because what work.

01:25 - 36.965 Because because it's a false premise.

01:25 - 40.335 The plaintiffs proffer that we're saying that a CEO is a liability.

01:25 - 42.837 I'm not suggesting the plaintiffs proffered that in this case.

01:25 - 43.938 That's why I ask the question.

01:25 - 47.709 Well, it's why they are they are proffering it in their principal brief.

01:25 - 49.043 In our response.

01:25 - 52.547 You have a situation where a certificate of occupancy is issued,

01:25 - 55.950 which indicates that the building was constructed according to code.

01:25 - 57.318 Right, right.

01:25 - 59.254 And then ten years later, you have another building inspector

01:25 - 01.589 comes out and says, no, there's a violation of the code.

01:26 - 03.091 This never should have been done this way.

01:26 - 06.094 That's what's causing. And I'll use this.

01:26 - 08.596 What are infiltration? Sure.

01:26 - 10.431 So what's the triggering event?

01:26 - 14.969 The second building code violation or the certificate of occupancy?

01:26 - 17.906 Or the statute of repose to trigger the statute or pose.

01:26 - 19.908 It's it's the issuance of the code, but

01:26 - 22.443 it's that's the statute.

01:26 - 26.781 The statute says the trigger is completion of construction. Yes.

01:26 - 30.818 You're saying the certificate of occupancy

01:26 - 33.821 equals completion of construction.

01:26 - 37.225 It's one one way which to establish that another way.

01:26 - 40.862 Maybe the statute does not reference it and it doesn't, Your Honor.

01:26 - 44.832 And I don't know why you're stretching the argument

01:26 - 48.770 to say that that shows that there was lawful performance.

01:26 - 52.140 The statute isn't concerned with lawful performance.

01:26 - 55.143 It's concerned with lawfully performing.

01:26 - 59.480 So I mean, all all the all the CEO dies is

01:26 - 04.285 all the code does is trigger completion of construction,

01:27 - 07.288 which is when the statute of repose begins to run

01:27 - 10.758 our position, your honor, which you may disagree with is is it

01:27 - 14.629 checks two prongs of the statute because it's issued.

01:27 - 17.632 It says it was built pursuant to the building permit,

01:27 - 20.235 just as the building permit. Why do you need that?

01:27 - 21.202 We we don't.

01:27 - 24.205 What I'm just saying is it can serve two purposes.

01:27 - 28.443 The building permit absolutely establishes lawfully performing or furnished.

01:27 - 29.177 Well, well, it

01:27 - 32.347 in the case of a non licensed

01:27 - 35.650 individual, the building permit and the and the certificate of occupancy

01:27 - 36.417 are interesting.

01:27 - 39.487 They're evidence of something but they're not the end all be all.

01:27 - 40.655 I mean I could have someone

01:27 - 44.259 I could have someone come into a house and do plumbing work on my house.

01:27 - 47.462 They don't need a building permit to do plumbing.

01:27 - 50.298 Some municipalities may require it.

01:27 - 52.200 Some probably don't.

01:27 - 55.203 Nor do I need a certificate of occupancy when the plumbing is done.

01:27 - 58.473 I mean, those are just evidence of

01:27 - 01.142 can be evidence of lawfully performing,

01:28 - 04.145 can be evidence of when it was completed.

01:28 - 08.116 But that's really not necessarily important in this case.

01:28 - 13.054 What's important is did the contractor here lawfully

01:28 - 17.725 and was the contractor lawfully performing the services

01:28 - 20.628 of which a building permit might be evidence?

01:28 - 22.497 It may not be. There might be other things.

01:28 - 25.300 And when did the statue repose begin?

01:28 - 26.567 It began on completion.

01:28 - 27.902 And I don't think there's any dispute about

01:28 - 29.537 when completion of this project happened.

01:28 - 32.073 I don't care whether there a certificate of occupancy or what.

01:28 - 34.909 I mean, you know, I'm not sure why that matters.

01:28 - 37.412 For purposes of constructing the statute.

01:28 - 39.714 I don't disagree about what I think Your Honor is hitting on

01:28 - 43.251 is a point we try to make in our brief, which is in some respects,

01:28 - 45.153 we've asked for a narrow holding

01:28 - 47.455 because there's any number of permutations, fact patterns

01:28 - 49.657 you could come up with as to how you could,

01:28 - 52.994 what would implicate the lawfully performing or furnishing

01:28 - 57.065 languages statute, and what would arguably implicate thee

01:28 - 01.069 within 12 years after completion of such construction, such improvement

01:29 - 04.939 language in the statute, there's there's there's any number of fact patterns

01:29 - 06.074 you could come up with.

01:29 - 08.876 And so that's why we urged the court to say,

01:29 - 11.846 you know, you may not need to wade into all of that, right?

01:29 - 15.183 In the case of a brand new single family, that's just evidence.

01:29 - 16.884 It's just evidence.

01:29 - 17.452 It's not.

01:29 - 18.119 It's not a

01:29 - 19.420 it's not a it's evidence

01:29 - 22.223 to show the legal significance of the statute being satisfied.

01:29 - 22.657 Correct.

01:29 - 26.060 And what we're not saying, just to some clear why just McCaffrey's

01:29 - 26.661 or the question.

01:29 - 29.664 We're not saying it's a it's a shield for, for liability.

01:29 - 31.632 We're just saying it starts the clock.

01:29 - 33.768 It triggers the 12 year post period.

01:29 - 36.571 All right.

01:29 - 39.540 Any other questions for Mr. Coyle

01:29 - 40.108 a mr.

01:29 - 42.243 Bashford and Mr. Coyle very well argued.

01:29 - 45.246 Thank you so much.

01:29 - 49.050 Our next case

01:29 - 52.120 is Commonwealth of Pennsylvania versus Ebony Gas Bar.

01:29 - 53.621 And this appeal involves

01:29 - 57.258 the Commonwealth's burden of proof for the crime of theft by deception.

01:29 - 01.562 This crime occurs if one obtains property of another through deception.

01:30 - 03.464 The crime typically involves

01:30 - 06.467 making a false statement or creating a false impression.

01:30 - 09.737 The property at issue here was a public housing benefit.

01:30 - 13.641 According to the evidence at trial, the defendant, Ebony Gas Barn,

01:30 - 18.045 was a tenant of the Monroe County Housing Authority Section eight program.

01:30 - 21.582 She was seeking to move to a different section eight rental.

01:30 - 26.554 To do so, she was required to complete new recertification paperwork

01:30 - 29.791 and to disclose any changes in income.

01:30 - 30.992 As part of the process,

01:30 - 34.729 the section eight coordinator phoned dashboard to check on missing paperwork.

01:30 - 38.833 She got dashboard voicemail, which identified the phone number

01:30 - 42.437 as belonging to a business called the quote above the bar.

01:30 - 46.507 So company close quote dashboard had never identified the business

01:30 - 49.944 or any income from it on her prior section eight disclosures,

01:30 - 53.314 despite an ongoing obligation to do so.

01:30 - 56.818 When questioned, dashboard claimed that the business was only a hobby,

01:30 - 00.655 but she had listened to the company on her social media pages,

01:31 - 05.726 and her social media showed storefront retail locations, shelves

01:31 - 09.163 of products and equipment, and travel trailers for sales at flea markets.

01:31 - 10.698 Gaspard

01:31 - 13.701 also rented storage facilities for the business,

01:31 - 17.305 although she eventually provided the housing authority with receipts

01:31 - 20.475 for her gross income, she did not provide any expenses,

01:31 - 23.478 tax returns or records of profits or losses.

01:31 - 26.080 Gaspard received public housing benefits

01:31 - 29.984 from March of 2017 through July of 2021.

01:31 - 33.988 The Housing Authority determined that she had received housing benefits

01:31 - 38.292 worth approximately $65,826.

01:31 - 40.394 During that period,

01:31 - 45.266 she was charged and ultimately convicted of theft by deception and false swearing

01:31 - 49.637 for failing to report her business income while receiving public housing benefits.

01:31 - 53.641 She was sentenced to two years probation and appealed her sentence

01:31 - 55.576 to the Superior Court.

01:31 - 58.613 On appeal, she argued that she may have been entitled to section

01:31 - 01.883 eight benefits even if she had disclosed her business income.

01:32 - 05.620 She also argued that it was the Commonwealth's burden

01:32 - 09.123 to prove that she had actually received housing benefits

01:32 - 14.195 in excess of what she would have received if she had disclosed her business income.

01:32 - 17.231 Gaspard relied extensively on a prior

01:32 - 20.368 Superior Court case, Commonwealth versus Thomas.

01:32 - 24.872 Thomas was convicted of a crime which was then known as false pretenses,

01:32 - 29.610 after she applied for public assistance but failed to disclose her employment

01:32 - 30.845 and wages.

01:32 - 33.748 The Superior Court in Thomas reversed the conviction,

01:32 - 37.251 noting that Thomas was not required to disclose her income

01:32 - 38.586 when her

01:32 - 42.189 application for assistance, and that Thomas may

01:32 - 45.493 still have been eligible for assistance depending upon her level of employment.

01:32 - 49.330 The Superior Court in this case, however, distinguished

01:32 - 54.502 Thomas and found that Gaspard was required to disclose all changes in income

01:32 - 57.838 as well as increases regardless of source.

01:32 - 01.609 On this basis, the Superior Court affirmed sports conviction.

01:33 - 06.380 The Supreme Court has granted Castparts petition for allowance of appeal

01:33 - 09.383 and is framed the following issue.

01:33 - 11.652 Where an individual fails to disclose

01:33 - 14.655 a source of income while seeking public benefits,

01:33 - 19.460 must the Commonwealth, in order to sustain a conviction for theft by deception,

01:33 - 23.331 prove that the amount of benefits would have been different

01:33 - 26.834 if the income had been properly reported?

01:33 - 31.172 Let's watch and listen to the arguments in Commonwealth versus Ebony cash board.

01:33 - 37.111 In this

01:33 - 42.249 discretionary appeal, appellant received benefits from a housing authority.

01:33 - 47.822 Section eight housing voucher program from 2017 through 2021.

01:33 - 52.727 Under this program, appellant was required to disclose

01:33 - 56.864 any changes in her income to the Housing Authority.

01:33 - 01.802 However, throughout the time she received section eight benefits,

01:34 - 05.673 appellant did not disclose income derived

01:34 - 08.843 from her Soap business.

01:34 - 13.514 In 2021, appellant's case manager discovered her business

01:34 - 18.319 and she was charged with theft by deception and false swearing.

01:34 - 21.555 Appellant was convicted of both charges

01:34 - 25.493 but appealed only her theft by deception conviction

01:34 - 30.931 as she did not dispute at trial that she misstated that she lacked income.

01:34 - 35.136 The Superior Court affirmed, concluding that the evidence

01:34 - 39.407 was sufficient to sustain her theft by deception conviction.

01:34 - 43.778 We were asked to address whether to sustain a conviction

01:34 - 45.413 for theft by deception.

01:34 - 49.450 Under these circumstances, the Commonwealth must prove

01:34 - 54.021 that the individual's failure to disclose income affected

01:34 - 57.191 the amount of public benefits received.

01:34 - 58.325 Please proceed.

01:34 - 01.996 Good morning, Eric Klaus for the appellant.

01:35 - 06.100 Bonnie Gaspard with me is co-counsel, Angela Ramos.

01:35 - 09.103 Both of us are from the Monroe County Public Defender's office.

01:35 - 12.339 A lie must cause harm.

01:35 - 17.111 This is an explicit requirement of the theft by deception statute.

01:35 - 21.215 The government was required to prove that a Bonnie gas bard received

01:35 - 24.285 more housing benefits than she was entitled

01:35 - 27.588 to, in order to sustain a conviction for theft by deception.

01:35 - 30.858 The Superior Court held that it was enough that a Bonnie

01:35 - 35.396 merely might have received a benefit she was not entitled to.

01:35 - 37.064 This was error.

01:35 - 39.400 The requirement to prove a difference in benefits

01:35 - 43.270 is a plain reading that stems from the language of the statute.

01:35 - 49.043 This theft by deception statute provides that a person is guilty of theft

01:35 - 54.215 if he intentionally obtains or withholds property of another by deception.

01:35 - 59.120 The statute goes on to define ex deception

01:35 - 05.092 in subsection B, and states that the term deceive does not,

01:36 - 10.231 however, include falsity as to matters having no pecuniary significance

01:36 - 14.668 or puffing by statements unlikely to deceive ordinary persons.

01:36 - 18.939 In the group addressed a lie about an entitlement

01:36 - 22.643 disbursement lacks pecuniary significance.

01:36 - 27.214 Where the applicant was entitled to the disbursement,

01:36 - 30.384 even if the truth was supplied in its stead.

01:36 - 36.190 Welfare benefits are a matter

01:36 - 40.661 of statutory entitlement for persons qualified to receive them.

01:36 - 45.399 This is been a recognized principle of our law for many years,

01:36 - 48.969 dating back to the due process rights to such entitlements

01:36 - 53.541 recognized by Goldberg B Kelly by the United States Supreme Court.

01:36 - 54.642 Entitlements.

01:36 - 58.546 Our legal right to property granted to statutorily, statutorily

01:36 - 02.016 eligible individuals lacking critical resources.

01:37 - 07.254 You either will receive them or you will not based on the statutory eligibility.

01:37 - 11.759 The purpose of the statute has long been recognized

01:37 - 15.763 that it requires that there be harm caused by the lie.

01:37 - 19.099 Where there is no harm, there is no violation.

01:37 - 22.436 The Superior Court

01:37 - 26.307 in Commonwealth v Joy, following this court's decision

01:37 - 30.811 in Commonwealth v Gallo back in 1977,

01:37 - 36.283 interpreted this requirement both on the

01:37 - 40.287 this court's decision in Gallo and also on the comments

01:37 - 44.225 to the model penal code for the theft by deception statute at that time.

01:37 - 48.229 And the court in Commonwealth v Joy said,

01:37 - 52.166 for example, a salesman's misrepresentation of his political

01:37 - 56.270 or fraternal affiliations in order to effect a sale are a

01:37 - 01.675 are characterized as without pecuniary significance, because such representation

01:38 - 05.880 representations do not affect the nature of the property that a party receives.

01:38 - 11.118 For instance, I have

01:38 - 14.521 used the example in thinking about this in preparing of this case.

01:38 - 19.894 Suppose, Justice Robson and Justice Wecht went to the opera together.

01:38 - 23.797 God forbid God, the US in the Joe

01:38 - 27.601 Justice and apparently drag justice work to the opera.

01:38 - 31.305 And they're going to see, lay miserable just as props

01:38 - 36.043 and checks his old hat into the coat check area.

01:38 - 40.381 And afterwards, just as props and so excited about having seen life

01:38 - 43.550 miserable that he goes to buy souvenirs, he tells Justice Wecht,

01:38 - 45.786 you may have my old hat.

01:38 - 48.589 Justice Wecht proceeds to the coat room

01:38 - 51.892 and says, hello, I'm Justice Robson.

01:38 - 53.661 Please give me my hat.

01:38 - 54.361 Okay.

01:38 - 57.798 Justice Wecht is already entitled to the hat.

01:38 - 00.301 He's been given the hat by Justice Robson.

01:39 - 03.637 Even if he lied to the coat room check person,

01:39 - 08.142 that has no pecuniary significance because he's going to receive the hat anyway.

01:39 - 08.943 And if he had told them.

01:39 - 11.946 I'm just going to tell you right now that's an unpersuasive hyperbole.

01:39 - 12.846 Hahaha.

01:39 - 15.849 All right, not so many theater fans are.

01:39 - 17.318 Well, they must miss.

01:39 - 19.687 It's not an opera knowledge. It's theater. Not a

01:39 - 22.222 I misstated lameness.

01:39 - 25.693 I'm sorry, I liked it because it was about a good thief, so.

01:39 - 27.661 Oh, yeah, that's good.

01:39 - 29.096 That's very good, actually.

01:39 - 29.797 Yeah, yeah.

01:39 - 31.832 Scalia and Ginsburg loved opera.

01:39 - 34.134 Robson, I what?

01:39 - 38.372 I was accused of Scalia isms the last time I was before this court, too.

01:39 - 41.342 So I guess that's consistent.

01:39 - 47.181 The the example is, silly, perhaps because

01:39 - 51.652 no one cares about those situations because they're not harming anyone.

01:39 - 55.723 When the state is presented with a situation such as this,

01:39 - 00.928 where there is an entitlement and there is, no clear harm,

01:40 - 06.467 this is not something that the legislature is targeting under this statute.

01:40 - 10.771 And some of the key testimony in this case actually was solicited

01:40 - 13.774 by the Commonwealth when they were discussing,

01:40 - 16.643 the matter with the Housing Authority on the stand.

01:40 - 20.781 And I believe the Commonwealth thought the answer to this question was going to be,

01:40 - 23.150 she's ineligible.

01:40 - 26.153 But instead, when the Commonwealth asked

01:40 - 29.790 after Miss Gaspard had voluntarily provided,

01:40 - 35.162 information about her income receipts and and things of that nature

01:40 - 38.032 after it was discovered by the housing authority,

01:40 - 40.200 the Commonwealth asked the Housing Authority employee,

01:40 - 42.736 was there a determination that she was not eligible

01:40 - 46.840 for housing assistance anymore and the, answer to the Commonwealth

01:40 - 51.412 surprise, I believe, was no, we never made that determination.

01:40 - 55.149 And the Commonwealth then pivoted in their closing and said,

01:40 - 58.152 well, you know, it's not about whether or not,

01:40 - 00.754 she was entitled to it or would have received it anyway.

01:41 - 05.592 It's only about whether or not she lied and that is why we're not challenging

01:41 - 10.631 and did not challenge the false statement to public authorities charge law.

01:41 - 11.799 Yes she did.

01:41 - 17.905 I mean, Miss Miscast barred maintain that ad on the stand that she was confused.

01:41 - 20.908 She thought it meant profit, not income.

01:41 - 24.344 The jury didn't believe that that was their right to not believe

01:41 - 30.451 that if they want also present in the exhibits, submitted by defense was,

01:41 - 35.456 some forms from the office of Income Maintenance where Miss Gaspard

01:41 - 39.093 had disclosed for purposes of Snap and Medicaid benefits,

01:41 - 43.797 her income from the business because she paradoxically believed that

01:41 - 46.867 she did have to disclose it to one agency, but not the other.

01:41 - 51.004 And so, that's why the jury didn't waiver.

01:41 - 55.109 I, I hear there were I think the jury could have gone any which way.

01:41 - 57.578 In this case, they didn't go for us, unfortunately.

01:41 - 00.681 But, nevertheless, the pecuniary

01:42 - 03.851 significance requirement of the statute remains.

01:42 - 09.923 This requirement, I think, is, not only part

01:42 - 14.828 of the definition of deception, but is also implied by the word by.

01:42 - 18.198 So it's a theft by deception

01:42 - 21.602 that, in my view, is a causative requirement.

01:42 - 27.474 In the statute that it has to have been obtained because there was a deception,

01:42 - 33.680 you know, by being as a, as a preposition, implying the means or the agency of.

01:42 - 36.683 So it had to have been caused by the deception,

01:42 - 40.020 and if the result would have been the same, regardless, it was not.

01:42 - 44.558 This causative requirement is also borne out

01:42 - 47.761 in other sections of our laws regarding theft.

01:42 - 52.766 We have two sections, one dealing with grading in 3903

01:42 - 55.769 and that section,

01:42 - 00.841 grades the harm caused by the lie based upon the money,

01:43 - 02.409 the pecuniary significance.

01:43 - 05.445 And when it's over a certain amount, it's a felony of this nature.

01:43 - 08.448 And when it's below a certain amount, it's a misdemeanor of that.

01:43 - 11.618 So that requires a causative amount,

01:43 - 17.991 to be implied in any theft charge, but specifically in theft by deception.

01:43 - 22.196 Also in our restitution statute in 1106,

01:43 - 25.532 it's only things which are a direct result

01:43 - 29.136 of the harm caused by the offense,

01:43 - 32.406 which is going to be awarded in restitution.

01:43 - 36.276 So really, all parts of our law are pointing to this

01:43 - 41.014 causative requirement, which is implied both by the by

01:43 - 45.419 and the theft by deception, and also specifically defined

01:43 - 50.424 in the word deception in the statute regarding pecuniary significance.

01:43 - 54.294 And this is consistent with what this court in Gallo said,

01:43 - 57.598 some 50 some years ago.

01:43 - 00.867 And Gallo stands for the proposition that deception

01:44 - 03.870 has to affect the transfer of property in Gallo.

01:44 - 06.873 A salesman cold called a mr.

01:44 - 09.009 Le Vito the sole proprietor.

01:44 - 15.215 He, represented himself as an executive for a national publication,

01:44 - 18.752 however, he was in reality the sole proprietor,

01:44 - 25.025 of someone who made brochures for advertising for businesses, based.

01:44 - 28.395 You know, this representation was made Mr.

01:44 - 33.166 libido, purchased brochures from Mr.

01:44 - 36.503 Gallo and was Mr.

01:44 - 40.340 Gallo was eventually convicted for lying and theft by deception in that

01:44 - 44.011 however, this court overturned because Mr.

01:44 - 44.911 Libido Stead

01:44 - 48.248 said on the stand that he was impressed with the quality of the brochures

01:44 - 49.383 and essentially

01:44 - 52.919 he would have bought them anyway so it wouldn't have made any difference.

01:44 - 56.823 The, the lie that was supplied,

01:44 - 01.028 just judging the case on the, the truth of the interaction.

01:45 - 02.029 And so there was no

01:45 - 05.732 pecuniary significance and, and there was not a theft by deception

01:45 - 10.504 so as to the determination of over here pecuniary significance.

01:45 - 15.709 Judge King on the Superior Court found that the Housing Authority

01:45 - 18.712 could not investigate

01:45 - 23.116 whether, Gaspard had a net income from self-employment,

01:45 - 27.487 because by failing to disclose her business income,

01:45 - 31.258 she prevented the housing authority from acquiring information

01:45 - 35.062 which might have affected her entitlement to section eight housing.

01:45 - 36.930 Could you comment on that?

01:45 - 41.835 So I think what has been a, focus of both the lower court

01:45 - 45.172 and the superior court in this case is what's the prove ability

01:45 - 48.709 going to be for the Commonwealth in these cases going forward?

01:45 - 52.479 And I'm not saying that the Commonwealth ever has an easy job.

01:45 - 54.648 In any case, though, sometimes they do.

01:45 - 55.882 But the

01:45 - 01.288 the principle is that they have to prove their case.

01:46 - 04.358 And if this is a requirement of the statute, which it is,

01:46 - 05.625 they must prove it.

01:46 - 07.761 And it's not actually going to be that hard.

01:46 - 11.965 Any time someone is charged with theft by deception

01:46 - 17.971 based upon lying about income on a welfare disbursement

01:46 - 21.508 application, the state has discovered that there was income.

01:46 - 26.880 The state is aware that there is income, and then they have all their normal tools

01:46 - 32.452 in their toolbox in order to determine how much income there would be,

01:46 - 36.623 there could be warrants for, bank account records.

01:46 - 41.228 There could be, you know, simple interviews with defendants.

01:46 - 46.233 Miss Gaspard in this case was extremely accommodating because when

01:46 - 51.505 the housing authority called her phone, the answering message was above the bar.

01:46 - 55.742 So, I mean, she wasn't doing a very great job of, concealing this.

01:46 - 00.347 And then the Housing Authority employees said, do you have such a business?

01:47 - 03.417 And, yes, I do. And clean. Yes.

01:47 - 07.487 Finally, a joke about above the bar.

01:47 - 09.256 So for I was expecting like something

01:47 - 12.626 about above the law, but I like that she wasn't trying to scrub the record.

01:47 - 14.661 Okay.

01:47 - 17.664 We're going to go all the way down this slippery slope.

01:47 - 20.867 Anyway, so

01:47 - 25.772 the, she they had a nice little conversation

01:47 - 30.110 with Miss Gas Barnes, and she said, well, here's my income receipts from the app.

01:47 - 34.581 I used to sell things out of my brick and mortar store in Monroe County.

01:47 - 37.117 She actually,

01:47 - 38.952 got a spot in a news article.

01:47 - 42.889 Hook, which is one of the things that, was discovered, I believe, and became.

01:47 - 47.727 And she had, like, a little, blurb interview about above the bar soap free

01:47 - 50.764 and how she was trying to make it a success in Monroe County.

01:47 - 54.201 It was manifestly not a success, but,

01:47 - 57.637 she did run that.

01:47 - 02.742 She was convicted of false swearing when she was so forthcoming in other ways.

01:48 - 07.214 Well, you know, it's a defense attorney sometimes you're very sour grapes

01:48 - 09.983 about the jury getting it wrong, but that is their purview

01:48 - 12.018 to get it wrong or right if they want.

01:48 - 15.822 And as I said, we're not asking the court to revisit it for that reason.

01:48 - 18.325 That one, that one, you're not that first of all,

01:48 - 20.026 it's a second degree misdemeanor, right?

01:48 - 24.397 But yes, but also that you're not contesting and

01:48 - 27.667 you don't have to contest on this appeal that she lied about her income.

01:48 - 29.703 That's the false swearing, right?

01:48 - 31.404 That's right. Yeah.

01:48 - 33.540 Yeah. So we're not contesting that.

01:48 - 38.278 But the state again, the state has all its normal methods

01:48 - 42.082 of investigating whether or not something is true or not.

01:48 - 46.453 In, you know, witnesses or, or any other manner.

01:48 - 50.023 So it's not the housing authority that needs to,

01:48 - 55.028 investigate and prosecute these kinds of things that are referred

01:48 - 00.000 to, you know, official criminal investigations in this case, I believe

01:49 - 03.436 it was the Monroe County District Attorney's Office, Detectives Division,

01:49 - 05.238 in order to do that.

01:49 - 08.241 And, you know, they had it doesn't matter in

01:49 - 12.712 terms of the Superior Court's analysis, it's not so relevant,

01:49 - 16.216 whether the Housing authority had the ability at the time

01:49 - 21.087 to investigate and determine because of her lack of, you know,

01:49 - 25.025 yeah, lack of candor,

01:49 - 28.562 when certainly between that point and trial, the,

01:49 - 32.232 investigators from the district attorney's office

01:49 - 35.235 and the police certainly had an opportunity to determine that.

01:49 - 37.437 That's absolutely correct, Your Honor.

01:49 - 41.341 And, you know, I, I think in, in this case, ironically,

01:49 - 44.344 all they had to do to,

01:49 - 48.381 either prove Miss Gaspard guilty or prove her

01:49 - 52.285 innocent was to have crunched the numbers that they had in front of them.

01:49 - 54.454 They just didn't. And isn't your answer.

01:49 - 57.457 Also, it's not her job to help the prosecution prosecutor.

01:49 - 59.826 That that's certainly true, Your Honor.

01:49 - 04.931 But, you know, in terms of concern for whether or not the prosecution

01:50 - 08.301 will have a fair opportunity to investigate

01:50 - 11.304 and prosecute crimes like this, I counsel think they certainly do.

01:50 - 13.173 Yes. I think Mrs.

01:50 - 16.242 Gasp or Miss Gasper it's failure to put forth this income.

01:50 - 20.046 Doesn't that handicap the Commonwealth's in their ability to determine

01:50 - 22.282 whether she is eligible?

01:50 - 26.853 I'm sorry, could you say it's in her failure to provide that information?

01:50 - 31.024 Doesn't that handicap the Commonwealth's, attempt

01:50 - 34.027 or ability to determine her eligibility?

01:50 - 37.230 Because what you're saying is we can have this discovery, which means

01:50 - 40.500 in every single case, the Commonwealth

01:50 - 43.737 will now have to subpoena bank records.

01:50 - 45.338 That's not going to happen.

01:50 - 48.341 Well, I'm not sure that will happen in every single case,

01:50 - 52.812 Your Honor, but I do have a somewhat cheeky response, to that.

01:50 - 54.748 And I mean no disrespect.

01:50 - 57.684 It is always an inconvenience to the Commonwealth

01:50 - 01.421 when the defendant does not help the Commonwealth prosecute them.

01:51 - 05.859 So the it's a normal course, though.

01:51 - 09.929 I mean, a lot of my clients unfortunately help the Commonwealth

01:51 - 14.267 prosecute them very much and and say all sorts of things

01:51 - 16.903 that if I was standing there, I would hit them

01:51 - 18.605 with the newspaper and say, please don't say that.

01:51 - 20.840 We're going to exercise our right to remain silent.

01:51 - 24.844 But this is when they've discovered something like this.

01:51 - 27.847 They've they've immediately got false swearing.

01:51 - 28.515 Okay.

01:51 - 34.921 The initial discovery that leads to the idea of charges will be false swearing.

01:51 - 37.824 And then if they want to prove

01:51 - 41.895 the measure of harm, which all theft charges require,

01:51 - 46.566 then they are going to have to do some sort of other investigation. So,

01:51 - 50.103 that that is a burden on the Commonwealth.

01:51 - 51.705 But that's a statutory one.

01:51 - 54.708 So you don't believe there's,

01:51 - 57.444 a theft of opportunity

01:51 - 00.447 that can support the charge, meaning,

01:52 - 05.285 your deception prevented the government from performing a function

01:52 - 09.022 to determine whether you were entitled to certain benefits, and that

01:52 - 13.059 that that was the theft, not necessarily the benefits,

01:52 - 16.896 but the theft of the government being able to do its lawful job.

01:52 - 20.967 Well, Justice Robson, that's a very interesting theory.

01:52 - 24.437 I mean, I would say, no, I don't I don't think there is, but,

01:52 - 28.241 that wasn't the theory that the Commonwealth proceeded on in this case.

01:52 - 31.111 There wasn't the there theory was we didn't have to prove it at all.

01:52 - 32.579 We didn't have any theft.

01:52 - 33.213 That's right.

01:52 - 35.749 They said, you know, this is the value,

01:52 - 39.285 that she unlawfully received.

01:52 - 42.222 And we don't have to prove that she unlawfully received it.

01:52 - 44.057 Basically.

01:52 - 44.424 All right.

01:52 - 46.326 I think we understand your argument.

01:52 - 50.296 More questions is I I'm sorry, but as I understand the record,

01:52 - 51.464 in this case, there

01:52 - 55.368 was a very good accounting of the money that your client made from her soap

01:52 - 58.438 business. So,

01:52 - 00.540 So it seems like.

01:53 - 01.741 Oh, this is an easy case.

01:53 - 04.410 Here's the money. Like, either qualified or not.

01:53 - 08.348 It's not a big analysis, but what happens in the situations

01:53 - 11.451 with people that I'm sure you represent who have these

01:53 - 14.721 maybe off businesses that they don't have an accounting.

01:53 - 17.724 They they make $5, they spend it.

01:53 - 20.527 It's all a cash business and there's no records of it then

01:53 - 23.530 that still fall on the Commonwealth to,

01:53 - 27.567 establish that the money that they made, increased

01:53 - 32.472 their income to a level that they wouldn't qualify for benefits, just as money.

01:53 - 34.140 I, I'd first like to say that,

01:53 - 36.843 this is probably the only case

01:53 - 40.914 that I've ever seen where a defendant had their own business that they set up.

01:53 - 45.685 It's usually it's somebody working under the table for some other business,

01:53 - 49.622 in which case the Commonwealth then goes to that business and they say,

01:53 - 52.025 where are they doing that? And the business said, yes.

01:53 - 54.460 What they didn't report that on their income.

01:53 - 56.563 I don't I didn't know that and I don't care.

01:53 - 58.231 Here's all the information.

01:53 - 02.402 So but but yes, to your question

01:54 - 06.773 directly, that is on the Commonwealth to prove, again,

01:54 - 11.110 because all of these theft cases are concerned with the valuation.

01:54 - 14.814 And if it's not, in the initial requirement

01:54 - 17.817 in the elements, it's at least required in the grading.

01:54 - 19.652 Thank you. Yeah.

01:54 - 19.986 All right.

01:54 - 22.388 Thank you very much. Let's hear from Mr. Schuck,

01:54 - 25.592 who's

01:54 - 28.595 teaching.

01:54 - 34.200 So thank you, Chief Justice.

01:54 - 36.035 Other honorable members of the bench.

01:54 - 37.270 My name is Matthew Shuck.

01:54 - 40.273 I'm representing the Commonwealth of Pennsylvania through

01:54 - 42.075 Monroe County District Attorney's Office.

01:54 - 43.509 In this matter,

01:54 - 46.846 the giving of public assistance is based upon truth and honesty.

01:54 - 48.948 Without aid, the government would have to spend

01:54 - 52.986 an immense portion of the already limited money set aside for public assistance

01:54 - 55.054 on investigating potential fraud,

01:54 - 58.057 reducing the amount of assistance that goes to those in need.

01:54 - 01.361 Ruling for the appellant would require every applicant for a public aid

01:55 - 05.098 to consent to allow the government to investigate every aspect of their

01:55 - 08.501 they person's life if they are receiving public assistance.

01:55 - 10.570 The appellant applied for public assistance

01:55 - 14.040 and agreed to provide information which included income.

01:55 - 17.477 She chose not to provide it and because she considered it a hobby.

01:55 - 18.878 This determination

01:55 - 22.215 is not the appellants to make, it is the income that was not reported.

01:55 - 24.751 Well. And your requirement?

01:55 - 27.420 I'm sorry. No, no. Go ahead, jump in to

01:55 - 32.358 to achieve the but for

01:55 - 35.528 causation criminal case, I mean you have to in other words

01:55 - 39.666 you how did you show

01:55 - 43.403 that her failure to report the information you're talking about

01:55 - 51.544 cause her to receive the $65,826 that that's the piece that seems to be missing.

01:55 - 53.713 In other words, there's no question about the lie.

01:55 - 55.982 That's how you get the fall summary.

01:55 - 58.651 But you didn't charge for your second count.

01:55 - 00.353 You didn't charge well for fraud.

01:56 - 04.357 You chose for, I don't know what reason to charge theft by deception.

01:56 - 08.261 So you you had to prove the

01:56 - 13.099 the causation of how she received this 65,000 change.

01:56 - 14.767 Ha, ha.

01:56 - 17.370 What did you do on that?

01:56 - 17.870 Justice.

01:56 - 21.407 The Commonwealth is limited in its ability to investigate.

01:56 - 25.445 As US is already pointed out, we would essentially need search warrant

01:56 - 28.614 for everything you have, but the ability to get all the warrant you need.

01:56 - 31.084 To an extent, justice.

01:56 - 34.320 There would be things outside of the Commonwealth's ability to subpoena

01:56 - 38.825 and seek warrants for, and it would ultimately require

01:56 - 41.828 in every single case where there's any potential theft,

01:56 - 46.232 if not all cases, for the Commonwealth to seek out

01:56 - 50.069 very intrusive requests from

01:56 - 53.306 every person seeking public assistance to look through, we should have.

01:56 - 54.841 So we should ignore the fact

01:56 - 57.110 that the Commonwealth has failed to meet its burden of proof,

01:56 - 00.113 because it would be inconvenient for the Commonwealth to do its job

01:57 - 02.949 and investigate and prove it beyond a reasonable doubt.

01:57 - 07.620 Just it isn't that we are asking that the burden is reduced.

01:57 - 08.521 It is mere.

01:57 - 12.625 It is more so that it is virtually impossible

01:57 - 16.729 as people do work off the books people have in

01:57 - 20.833 an illicit income that they would never report.

01:57 - 26.105 They have potentially working outside of the Commonwealth.

01:57 - 27.707 Potentially they receive income

01:57 - 30.710 from outside of the United States in its entirety.

01:57 - 35.648 There no possible venue for the government to ever gather that information.

01:57 - 38.584 How do you how do you meet your burden to process you and say, instead of

01:57 - 40.286 lying about

01:57 - 43.990 income, she had lied about her address or her date of birth?

01:57 - 47.493 It would seem

01:57 - 50.496 there's no doubt you would just since you're just presuming

01:57 - 54.167 without showing a dollar a dollar harm,

01:57 - 58.104 there would be the same conviction for theft by deception.

01:57 - 02.241 Just by implication, since you think you have no burden to show

01:58 - 05.711 the financial Harmonix Theft by deception charge, you can just assume

01:58 - 09.115 that the lie about the address or the lie about the date of birth

01:58 - 13.586 also must result in ensuing harm.

01:58 - 16.389 So she's convicted on on that theory. Two House.

01:58 - 17.790 What's the difference? Justice?

01:58 - 22.028 I would disagree as there there would be no pecuniary harm

01:58 - 25.798 no matter what, as a result of lying about the address or date of birth.

01:58 - 29.135 It whether someone reported

01:58 - 32.805 they were 39 or 49, it doesn't affect their benefit.

01:58 - 35.374 Either way, your theory is

01:58 - 39.345 to convict this person of a felony.

01:58 - 43.449 Your theory is the court can just presume a dollar,

01:58 - 47.920 a dollar, a dollar amount of harm without any proof of that.

01:58 - 50.323 So I don't see the difference.

01:58 - 51.891 The lie is about the date of birth,

01:58 - 54.894 the lies about the name, of the lies about income.

01:58 - 57.864 If the lie is is is it

01:58 - 00.666 is enough for theft by deception.

01:59 - 02.935 And you don't have to prove financial harm.

01:59 - 05.938 Why does it matter?

01:59 - 08.774 Justice.

01:59 - 11.777 It is quite, quite literally

01:59 - 14.780 impossible for us to determine the financial harm as

01:59 - 18.151 all of the information is in the sole possession

01:59 - 20.786 of the person, the defendant.

01:59 - 24.090 Why not simply to get your felony conviction?

01:59 - 27.460 Why not charge welfare fraud instead?

01:59 - 29.428 Isn't that wouldn't that have been more appropriate here?

01:59 - 32.765 It could have been, judge, it is justice.

01:59 - 35.201 I'm sorry. It is discretionary though.

01:59 - 38.237 And what the Commonwealth chooses to charge in certain matters.

01:59 - 41.207 Council can I can I try to help you out here?

01:59 - 42.642 I want to make sure I just understand

01:59 - 47.580 because I don't think the Commonwealth sirree here is completely off the rails.

01:59 - 51.817 I think what you're saying, or what the Commonwealth's position

01:59 - 55.922 is, is the only people that are entitled to benefits

01:59 - 00.726 are people who are truthful in asking for them

02:00 - 04.664 and in the sense they fill out the materials, particularly

02:00 - 08.167 the material elements of the application, in a truthful fashion.

02:00 - 11.470 If you aren't truthful,

02:00 - 14.440 you are not entitled to the benefits.

02:00 - 17.944 Her problem was she lied about a material element

02:00 - 22.682 of the application, even if that lie ultimately wouldn't.

02:00 - 27.820 If she would have changed her her the amount her her, the benefits

02:00 - 31.857 she received may not have been unchanged, but it's the lie itself

02:00 - 35.528 about the income

02:00 - 38.664 that disqualified her from receiving any benefits.

02:00 - 41.167 And therefore that's the theft.

02:00 - 43.202 I think that's your theory. In the case

02:00 - 45.905 she isn't entitled to benefits

02:00 - 48.908 when she lies about a material element in the application,

02:00 - 52.011 regardless of how that impact might have been.

02:00 - 54.513 If she would have been truthful.

02:00 - 55.081 Yeah.

02:00 - 59.452 Yes, it would effectively eliminate her own.

02:01 - 02.555 You don't give benefits to liars.

02:01 - 04.624 A liars are not entitled to benefits.

02:01 - 06.359 That's your theory,

02:01 - 10.529 Amy, in matters that affect the income.

02:01 - 12.932 Yes, Joe justice, it has to be a material loss.

02:01 - 13.633 It has to be a lie.

02:01 - 17.136 That is is is important to determining what those benefits are.

02:01 - 20.906 Not the birthday, not the, the, the name

02:01 - 24.310 or things like that, but you, in order for you

02:01 - 28.080 to be eligible for these benefits, you must be truthful.

02:01 - 31.050 And if you are not truthful, you are stealing.

02:01 - 34.253 Okay, so if that's the argument

02:01 - 37.290 on what do you rely to make that argument?

02:01 - 41.193 Justice and the chief justice.

02:01 - 42.828 I'm sorry,

02:01 - 46.265 the appellant had income

02:01 - 51.570 just because she views it as a hobby rather than income

02:01 - 55.207 doesn't turn it into something she didn't have to report

02:01 - 58.244 when she wasn't

02:01 - 01.347 gaining the income in 2017 and 2018.

02:02 - 07.787 She failed to report it and thus would have given up her entitlement.

02:02 - 11.223 So from that point onward, she effectively was entitled

02:02 - 14.260 to $0 and was receiving benefits.

02:02 - 16.162 She wasn't the factual predicate.

02:02 - 19.832 On what legal basis do you maintain that

02:02 - 22.835 no further proof was required?

02:02 - 24.303 Justice.

02:02 - 27.306 Just a plain reading of the statute is,

02:02 - 30.843 is that it creates or forces

02:02 - 33.813 a false impression, including the value,

02:02 - 38.184 by inappropriately giving the value to,

02:02 - 41.821 she is causing a deception

02:02 - 45.925 that she was required to correct once she had income.

02:02 - 48.494 Okay, so you were

02:02 - 52.298 relying on the same analysis that Judge King

02:02 - 57.370 set forth in the Superior Court that she,

02:02 - 02.575 in essence, prevented or hindered the prosecution

02:03 - 06.245 from calculating and investigating.

02:03 - 09.448 You know, concluding what the amount was.

02:03 - 11.050 That is correct.

02:03 - 14.053 I mean, by the very nature of justice.

02:03 - 17.623 But for the first time here.

02:03 - 21.327 But Chief Justice, even she claims that

02:03 - 25.865 that all of her income was by square and she the reported.

02:03 - 29.468 But it was a storefront business.

02:03 - 32.471 Surely someone paid cash.

02:03 - 34.440 We don't know how many people did.

02:03 - 35.741 We don't know the value of it.

02:03 - 38.644 You know, we don't do that. People have felonies.

02:03 - 39.812 Do we?

02:03 - 43.549 On the basis that surely someone did X, Y or Z?

02:03 - 48.754 But there's no you know, we don't we don't hit somebody with a big mallet

02:03 - 52.391 on their head because they lied and and she's convicted of false swearing.

02:03 - 53.192 That's over here.

02:03 - 58.230 That's a misdemeanor where you don't have nobody did a calculation.

02:03 - 01.167 There are forensic accountants.

02:04 - 02.401 They're out there.

02:04 - 07.206 Nobody gave us a calculation of how this unreported, alleged,

02:04 - 12.178 unreported business revenue affected her section eight benefits, if at all.

02:04 - 16.982 We don't know, for example, if this business operated at a loss,

02:04 - 21.053 like you might say, by golly, she must have made money.

02:04 - 22.288 That's that.

02:04 - 23.823 You can say that all day long.

02:04 - 26.759 But that's not proof for a criminal conviction.

02:04 - 31.430 So how is there something about section eight benefits that

02:04 - 34.934 that we don't know?

02:04 - 37.536 That would make it just obvious

02:04 - 40.539 beyond a reasonable doubt

02:04 - 43.742 that any unreported business revenue

02:04 - 46.979 would automatically affect her benefits calculation?

02:04 - 50.182 No justice.

02:04 - 51.383 I do not know of any.

02:04 - 54.086 And I and and I

02:04 - 57.089 the question isn't whether she violated section eight,

02:04 - 59.792 but the issue is does

02:04 - 06.165 her conduct meet the elements of 3922, which is did she

02:05 - 08.701 is she guilty if she intentionally obtained

02:05 - 11.670 or withhold property of another by deception,

02:05 - 16.175 such that intentionally create for 3 or 4 sets of false impression

02:05 - 20.179 or false impressions, are flawed value of attention, or fails to,

02:05 - 23.983 prevent another from acquiring information which would affect

02:05 - 25.718 a judgment or transaction.

02:05 - 28.888 So we're not looking at a violation of section eight.

02:05 - 29.822 This is strictly

02:05 - 34.727 a matter of criminal law and statutory that reading the statutory definition.

02:05 - 36.795 That's your argument, correct?

02:05 - 39.231 Yes. Justice respond to injustice.

02:05 - 40.099 I briefly

02:05 - 42.401 I will concede that we did

02:05 - 45.404 not have a forensic accounting done in this case.

02:05 - 49.408 I'm not suggesting the statute requires you to read them.

02:05 - 54.013 I'm just I'm just getting at the property issue that your opposing counsel

02:05 - 55.214 was talking about.

02:05 - 58.450 We we have this big question mark here

02:05 - 02.121 about this thing called the the property of another.

02:06 - 05.858 And, and, and, we just don't know.

02:06 - 09.795 I don't see on this record

02:06 - 13.232 that the, the proof of that what that property

02:06 - 17.403 was, it's just presumption that she had to make money on this.

02:06 - 22.408 So business and counsel, you're asking us to create a presumption

02:06 - 26.378 that what happened here, her lack of disclosure,

02:06 - 29.815 you're asking us to presume that that had

02:06 - 32.818 pecuniary significance.

02:06 - 35.988 But what is the basis for that?

02:06 - 39.358 Because the information, in

02:06 - 42.561 order to properly account for it,

02:06 - 46.465 the amount she would have been entitled to,

02:06 - 50.436 but for her hiding all of the potential information

02:06 - 54.773 would mean that we would have had to have a forensic accounting done.

02:06 - 57.276 Why don't you like my theory of the case?

02:06 - 00.479 I don't, I don't I mean, I don't I don't know why you keep going,

02:07 - 02.281 why you're adopting this.

02:07 - 05.517 I mean, I understand why because that's kind of what the appellant

02:07 - 06.585 is asking you to do.

02:07 - 08.420 The appellant is taking you down this path

02:07 - 09.989 and you're just sort of not pushing back.

02:07 - 12.992 And but it it seems to me that

02:07 - 17.863 the only way you can really prevail, because you don't have

02:07 - 21.066 the evidence of the buffer is to take the argument

02:07 - 24.236 that I'm sort of teeing up to you, which is

02:07 - 29.041 an applicant who fills out a form seeking something

02:07 - 33.946 and lies in a material fashion on that form material meaning the the,

02:07 - 37.716 the, the, the, the fact that you misrepresented is a fact

02:07 - 41.520 that is taken into account for purposes of the government doing what it does.

02:07 - 44.757 That and then you receive benefits.

02:07 - 46.592 People who

02:07 - 50.663 lie on those forms to the government are not entitled to benefits.

02:07 - 53.666 It doesn't matter if it would have changed the number at all.

02:07 - 58.904 You cannot obtain government benefits by lying before you.

02:07 - 03.842 Before you answer that, where in the statute would you.

02:08 - 07.579 Well, I I'm, I'm, I okay fine.

02:08 - 08.747 You can amend my question.

02:08 - 12.217 I mean I'm just trying to understand if that's not your theory,

02:08 - 14.553 if you're going to go down this.

02:08 - 17.489 But for path, I think you're in trouble.

02:08 - 21.226 But I think the case is a little bit closer, and I'm I'm

02:08 - 24.363 I'm not sure I understand why you're resistant to that.

02:08 - 27.766 It's a better argument.

02:08 - 29.401 I will accept the lifeline.

02:08 - 31.570 Some from the court. Judge.

02:08 - 32.671 Justice. What?

02:08 - 34.239 What do you hope you have for counsel?

02:08 - 36.875 Is that the SAT is set.

02:08 - 41.613 The statutory section provides that the term deceive does

02:08 - 46.652 not include false, that the as to matters having no pecuniary significance.

02:08 - 50.489 My point show pecuniary significance.

02:08 - 53.325 You can't just unless you.

02:08 - 56.128 Well, this is a discussion we should probably have not here.

02:08 - 00.799 But I think, I think my my theory of pecuniary significance,

02:09 - 03.902 which is she received benefits

02:09 - 09.007 and lied on an application to get the that's pecuniary.

02:09 - 14.246 We don't give benefits to liars whether the lie is ultimately

02:09 - 17.249 if whether you we if you would have told the truth, it would have changed.

02:09 - 21.820 But there was a deception on a material element of the application.

02:09 - 25.858 She received benefits which were pecuniary and the government does not

02:09 - 28.026 give benefits to liars.

02:09 - 29.528 I mean, that's following it.

02:09 - 31.096 Following that argument, the question.

02:09 - 33.165 And now I'm a little confused.

02:09 - 34.900 The A person is guilty if that.

02:09 - 38.704 If he intentionally obtains or withholds property of another by deception.

02:09 - 42.908 The property we're discussing the deception is my understanding.

02:09 - 46.411 The basis of your Commonwealth charge is that, in fact,

02:09 - 47.746 she obtained

02:09 - 51.316 the property that being public housing, which means housing that belongs to us

02:09 - 54.453 and she's getting it by use of our taxpayer dollars,

02:09 - 58.190 by not providing that information, she obtain housing,

02:09 - 00.058 whether that pecuniary interest,

02:10 - 03.061 whether if would have put her in the bracket is not the issue.

02:10 - 08.567 The issue before this court is whether did she obtain property, our public housing?

02:10 - 12.137 Does she get to live in it by lying and being deceptive of it?

02:10 - 14.273 That's the question I understand.

02:10 - 15.641 Am I wrong or

02:10 - 17.442 does this I

02:10 - 21.146 would answer that comment with that is exactly what she did.

02:10 - 23.582 Wow, couldn't you have said that to me?

02:10 - 25.617 I would have felt a lot better.

02:10 - 26.652 I think he was saying it.

02:10 - 28.654 It just didn't come out that way.

02:10 - 30.622 All right, we understand.

02:10 - 33.559 And we'll have a, nice discussion

02:10 - 36.562 about this matter and in conference.

02:10 - 39.231 First of all, thank you.

02:10 - 42.434 This was, your first argument before the Supreme Court.

02:10 - 44.603 And it is my first appellate argument, chief.

02:10 - 46.338 First in Salida. Arch.

02:10 - 50.108 How long have you been with, the Monroe County district Attorney's office?

02:10 - 51.877 Just since August, chief justice.

02:10 - 54.479 Well, they threw you right in, and so.

02:10 - 56.114 Yeah, very nice job.

02:10 - 58.550 And and, you're always welcome.

02:10 - 00.619 What about, Mr. Schock?

02:11 - 02.254 Have you been with us before?

02:11 - 03.155 I'm Mr..

02:11 - 05.190 Plus, he's Mr. Trump. You're Mr.. Here.

02:11 - 07.960 I'm so sorry, Mr.. Klaus. Have you been with us before?

02:11 - 09.261 Absolutely, yes I did.

02:11 - 13.966 I had the privilege of arguing, I believe back in 2021, when Chief

02:11 - 17.402 Justice Bear was still on the bench, I say a very nice job.

02:11 - 19.705 Yes, very nice job. Thank you.

02:11 - 21.273 Thank you both.

02:11 - 25.110 We are now going to, take a lunch recess. Mr.

02:11 - 29.248 Minner, could you adjourn court until 1230

02:11 - 32.284 for a good reason?

02:11 - 34.920 The next case the court is going to hear is a case

02:11 - 37.923 called CCM versus Pennsylvania State Police.

02:11 - 43.095 And the basic issue in this case is, does a man convicted in 1987

02:11 - 46.365 have to register as a sex offender today?

02:11 - 50.235 The background of this case is interesting.

02:11 - 55.841 He committed his crimes third degree murder, rape and conspiracy in 1987.

02:11 - 59.011 He pled guilty in 1995 and received

02:11 - 01.980 a sentence of 15 to 30 years in prison.

02:12 - 03.916 But here's the key point.

02:12 - 06.919 When he committed the crimes, Pennsylvania

02:12 - 10.889 had no sex offender registration law at all.

02:12 - 13.058 During the years he was incarcerated.

02:12 - 15.928 The state passed several different registration laws.

02:12 - 19.364 But never but none of them ever applied to him

02:12 - 22.567 because he was already in prison and not subject to registration.

02:12 - 27.639 He remained incarcerated until 2020, when he was finally released.

02:12 - 31.443 The Pennsylvania State Police said he had to register as a sex offender

02:12 - 36.181 under subchapter one, the part of the law that applies to older offenses.

02:12 - 38.383 CCM challenged that decision.

02:12 - 41.520 Kim says that the

02:12 - 45.257 sub chapter, one that the Pennsylvania State Police

02:12 - 50.295 uses, applies only to two groups of people those who committed offenses

02:12 - 55.467 between 1996 and 2012, or those who are already required

02:12 - 59.171 to register under a prior law during that same period.

02:12 - 02.641 His argument is that he fits neither category.

02:13 - 07.312 His crimes were in 1987, before any registration law existed,

02:13 - 11.383 and he was never required to register under any earlier law

02:13 - 14.686 because he was in prison the entire time.

02:13 - 19.324 His alternative argument is if the if the text of the statute

02:13 - 22.728 is ambiguous on this point, that the tie should go to him

02:13 - 27.232 either way, he says he should not be required to register.

02:13 - 31.770 Predictably, the Pennsylvania State Police takes a different view.

02:13 - 35.974 The state police argue that the legislature intended subchapter

02:13 - 39.311 one to cover all people convicted of serious sexual

02:13 - 42.314 offenses, regardless of when the crime occurred.

02:13 - 46.084 They say that the law was passed to ensure public safety

02:13 - 49.488 and to close loopholes, not to exempt people simply

02:13 - 54.159 because they were incarcerated at the time the law was passed.

02:13 - 58.363 So the Supreme Court now is being asked

02:13 - 04.069 whether or not someone like C.M., given his history, can be forced

02:14 - 08.040 to register as a sex offender decades after his crime,

02:14 - 11.043 even if he was not required to register

02:14 - 14.046 under any law that existed at that time.

02:14 - 17.215 So with that, let's turn to the courtroom and listen to the arguments

02:14 - 20.786 in CCM versus state police afternoon

02:14 - 24.423 lawyer, the Sexual Offender Registration

02:14 - 28.860 and Notification Act, or Sorna, states that subchapter

02:14 - 32.397 II of the act is applicable to individuals

02:14 - 36.101 who were required to register with the Pennsylvania State Police

02:14 - 40.772 under a formal former sexual offender registration law,

02:14 - 45.110 and whose period of registration had not expired at the time.

02:14 - 48.280 Shawna became effective in this case.

02:14 - 52.818 Appellant committed a sexual offense in 1987

02:14 - 57.823 and began a sentence of imprisonment for that crime in 1995,

02:14 - 03.361 while appellant was serving his sentence, our General Assembly enacted a series

02:15 - 09.134 of sexual offender registration laws culminating in the promulgation of Sorna,

02:15 - 13.939 which became effective while appellant remained incarcerated.

02:15 - 16.975 We must determine whether, despite

02:15 - 22.714 his incarceration, appellant was required to register as a sex offender under

02:15 - 26.518 one of these previous sexual offender registration laws

02:15 - 29.821 such that subchapter one, Pardon

02:15 - 32.791 Me, subchapter II, applies to him.

02:15 - 33.925 Please proceed.

02:15 - 35.827 Thank you.

02:15 - 37.762 Good afternoon, Your Honors counsel.

02:15 - 38.797 May it please the court.

02:15 - 43.335 My name is Brian McNeil with the York County Public Defender's office.

02:15 - 45.470 I run a lot of your county.

02:15 - 48.473 This I know, punching above our weight.

02:15 - 52.110 I represent CM, the appellant.

02:15 - 55.080 This is a simple case of statutory construction.

02:15 - 58.850 CMS interpretation of the relevant statute gives effect to the language.

02:15 - 01.119 The General Assembly opted to use

02:16 - 04.122 in defining the reach and scope of subchapter I.

02:16 - 07.626 Its language is clear and should be applied as written, given

02:16 - 11.663 plain and ordinary meaning, so as to exclude him from any duty to register.

02:16 - 15.300 And the alternative, to the extent the language is ambiguous,

02:16 - 19.437 Cms's interpretation must prevail under the strict construction required

02:16 - 21.273 for statutes of this nature,

02:16 - 25.310 as well as the context and background of the enactment of subchapter I.

02:16 - 28.346 Starting point here,

02:16 - 31.082 as I think in all cases the statutory construction

02:16 - 35.620 is the relevant language, and here the key phrase is really required to register,

02:16 - 39.991 because subchapter I only applies to CM to the extent

02:16 - 43.962 that he was required to register under a prior scheme in Pennsylvania,

02:16 - 49.000 during the relevant period, which is roughly 1996 to 2012,

02:16 - 53.438 CMS interpretation is clear and straightforward,

02:16 - 55.006 and that is it required to register.

02:16 - 00.512 Means required to register means that he was actually under a legal obligation

02:17 - 04.516 to undertake the act of registration during the relevant period.

02:17 - 07.652 It's not enough that,

02:17 - 11.189 a prior scheme applied to him or covered him, or even that

02:17 - 14.659 it indicated that he would have to register at some point in the future

02:17 - 18.029 if he was not required to register during the relevant period.

02:17 - 20.732 There was no legal obligation, and he cannot be said to have been

02:17 - 21.900 required to register.

02:17 - 26.204 And that's key for CCM, because under the relevant provisions,

02:17 - 29.908 the duty to register did not kick in until after release

02:17 - 32.911 from incarceration, or at least until such release was imminent,

02:17 - 36.381 and CM never got anywhere near that point.

02:17 - 39.150 During the relevant period.

02:17 - 42.387 SP is interpretation, by contrast, of course, is much broader.

02:17 - 48.093 And essentially it is that, CM was required to register under

02:17 - 52.397 Megan's Law to even though he never did anything at all pursuant to that statute

02:17 - 55.734 or that scheme, and he was not actually required to do so.

02:17 - 00.305 In other words, the interpretation essentially is that if a prior scheme

02:18 - 03.808 applied to someone or covered them, that that's enough and that that means

02:18 - 06.811 they were required to register for the purposes of subchapter II.

02:18 - 10.382 The language the General Assembly opted to use, however, supports

02:18 - 14.286 CMS interpretation and not the purpose required.

02:18 - 19.591 Suggests meaningful actual obligations, not unrealized inchoate,

02:18 - 23.228 possible obligations that could arise in the future.

02:18 - 24.963 And here again, it's undisputed.

02:18 - 26.998 The CM never did anything at all

02:18 - 30.001 and was never required to under these prior schemes,

02:18 - 31.736 this language should simply

02:18 - 35.607 be applied as written and exclude CM from any duty to register,

02:18 - 39.344 and in the alternative, as the language is ambiguous,

02:18 - 42.347 the strict construction is required

02:18 - 45.583 under one tax section 1928

02:18 - 49.087 which indicates that anytime you have a retrospective

02:18 - 52.724 or retroactive statute, we need to adopt a strict construction.

02:18 - 54.592 And here, there's no question about it.

02:18 - 57.595 Subchapter II is explicitly retroactive,

02:18 - 00.699 meant to apply only retroactively.

02:19 - 04.069 To people that aren't covered under under another scheme,

02:19 - 09.040 additionally, excluding CCM from registering under subchapter II,

02:19 - 12.077 is also consistent with the reason to show that chapter

02:19 - 16.181 II was enacted in the first place, which was to remedy

02:19 - 19.517 the ex post facto problems that were present,

02:19 - 22.687 based on this court's decision in Commonwealth v monies,

02:19 - 26.424 in invalidating ex post facto application of Sorna.

02:19 - 29.461 It's a step back from that scheme.

02:19 - 32.630 And it makes sense to exclude someone like CCM because the key

02:19 - 36.234 motivating principles for ex post facto laws are certainly

02:19 - 38.470 notice and fairness.

02:19 - 42.006 Or as I think this court said in news, you know, the absence of fair warning.

02:19 - 46.911 And that's the case with someone like, CM whose, offenses actually predate

02:19 - 50.248 the very concept of sex offender registration.

02:19 - 53.184 And in response to all this, the PSP relies

02:19 - 56.621 on what he refers to as context, including federal law.

02:19 - 00.625 But the context, as I just noted, actually supports CMS interpretation.

02:20 - 03.661 A lot of the reasons a subchapter II exists in the first place.

02:20 - 06.898 As for federal law,

02:20 - 09.634 that's 180 degree is wrong.

02:20 - 12.637 Subchapter II is actually a reaction against federal law.

02:20 - 15.907 It's a reaction against Sorna, and it's a reaction to human use,

02:20 - 20.311 and therefore represents a step back from the maximum coverage,

02:20 - 23.548 and maximum punitive ness of Sorna,

02:20 - 27.752 so to say that it should be maximally expansive, is just wrong.

02:20 - 33.391 PSP also relies on perceived absurd results in this case,

02:20 - 36.361 and I see is a perceived because the results

02:20 - 39.364 the PSP identifies are really not absurd at all.

02:20 - 42.267 The hypothetical that PSP has put forward,

02:20 - 45.069 and adopted by the Commonwealth Court,

02:20 - 47.338 all it really demonstrates is that there will sometimes

02:20 - 50.508 be some incongruity between who has to register and who doesn't.

02:20 - 53.878 And that's well within the contemplation of the general Assembly.

02:20 - 57.749 If the General Assembly had wanted a perfect,

02:20 - 01.486 narrowly tailored scheme of registration, they could have required individualized

02:21 - 04.756 assessments for each potential registrant to determine

02:21 - 08.660 whether registration is necessary at all, or what the requirements are.

02:21 - 11.062 But they didn't do that.

02:21 - 14.065 They opted instead for categorical classifications, i.e.

02:21 - 17.235 conviction of certain enumerated offenses.

02:21 - 21.272 And so the General Assembly was well aware that there was going to occasionally be

02:21 - 26.010 some over inclusiveness and occasionally some under inclusiveness and registration.

02:21 - 29.581 And so to say that we can imagine a hypothetical where

02:21 - 31.649 maybe someone who some might think should have to

02:21 - 35.420 register doesn't have to register, and maybe someone who think we might think

02:21 - 38.823 doesn't have to register, does, is well within what

02:21 - 42.594 the General Assembly contemplated when it put subchapter II into effect.

02:21 - 47.565 Counsel, is it conceivable that when the General Assembly

02:21 - 52.837 created subchapter II for the purpose of dealing with retroactive application,

02:21 - 55.673 specifically when they use

02:21 - 00.945 the phrase required to register in that statute, they meant one thing,

02:22 - 05.450 and that when with the May versions of Megan's Law

02:22 - 09.621 that was in effect when your client was incarcerated, required

02:22 - 12.924 to register had a different context, a different meaning.

02:22 - 16.160 Is it possible that we should just look at

02:22 - 19.130 the statute that created

02:22 - 22.500 the retroactive aspect to determine what did the General Assembly mean

02:22 - 25.904 when they said required to register in our prior scheme?

02:22 - 28.873 I mean, I think ideally we'd have harmony

02:22 - 31.876 between all the schemes as far as what that phrasing means.

02:22 - 35.013 But certainly you would want to, you know, internally

02:22 - 37.982 within one individual scheme because it's enacted in one session.

02:22 - 40.752 And of course, different statutes though.

02:22 - 41.486 Correct? Yeah.

02:22 - 45.423 And you're looking back, you know, via the enactment of subchapter II,

02:22 - 48.893 you're looking back at what it means to have been required to register.

02:22 - 52.230 And to me, that that only reinforces

02:22 - 56.200 cms's interpretation by if only because

02:22 - 59.971 they could have made it so much easier if they wanted to just apply.

02:23 - 03.408 You know, if someone to whom a prior scheme applied or covered

02:23 - 06.110 under a prior scheme, they could very easily have ordered it that way.

02:23 - 08.846 The fact that they chose this phrasing required to register,

02:23 - 12.417 I think that most people, when they hear a phrase like that,

02:23 - 15.153 I think they would understand that to mean that you actually had to do something.

02:23 - 19.223 Well, I'm, I'm not sure if that's I, I never professed

02:23 - 23.061 to be the average reasonable person, but but but a a person off the street

02:23 - 26.230 who here was required to register under a former act,

02:23 - 29.233 probably wouldn't put the nuance on it that you're putting on it.

02:23 - 32.337 I think it's, it's, it's possible, Your Honor, I know I,

02:23 - 33.638 I can see this possible.

02:23 - 36.641 I'm just saying I'm not sure it's that clear.

02:23 - 37.709 Understood, Your Honor,

02:23 - 40.878 and I mean, and that's why essentially, our fallback position is that,

02:23 - 44.782 if we have two reasonable interpretations of the same phrasing,

02:23 - 47.785 that really governs the outcome of this case,

02:23 - 50.021 the court has to go with the strict construction,

02:23 - 52.890 because this is a retrospective statute, and a strict construction

02:23 - 56.094 is explicitly required under section 1928.

02:23 - 00.698 So if we can imagine to, you know, competing reasonable

02:24 - 04.435 interpretations of that same language, then I think CMA has to prevail.

02:24 - 07.171 Any other questions for Mr.

02:24 - 08.773 McDowell?

02:24 - 10.041 All right, sir. Thank you.

02:24 - 11.209 Thank you very much, Your Honor.

02:24 - 14.045 Let's hear from, Attorney Cogan for the state

02:24 - 17.048 police.

02:24 - 26.457 I'm not sure.

02:24 - 27.992 Great. Please.

02:24 - 28.359 The court.

02:24 - 31.763 My name is Hannah Hogan, and I'm a deputy attorney general with the office

02:24 - 35.667 of Attorney General here representing appellate Pennsylvania State Police.

02:24 - 40.038 The parties present the court with two readings of the same language

02:24 - 45.843 in subchapter I of Sorna to section 979952, subsection two.

02:24 - 48.880 Ascertaining the plain language of a statute

02:24 - 52.116 requires reading the words and phrases in context.

02:24 - 55.887 Here, the statutory language concerns individuals

02:24 - 59.891 who are required to register under former sex offender registration law.

02:25 - 04.495 The correct plaintext reading is that individuals who are required

02:25 - 09.634 to register means individuals with a legal obligation to register.

02:25 - 14.272 Under previous laws, the general Assembly in this provision, entitled Scope,

02:25 - 18.843 aimed to capture a category of people those who are required

02:25 - 23.047 to register regardless of when they began performing that obligation.

02:25 - 27.118 The text is unambiguous, and that reading is consistent

02:25 - 30.788 with the language of Megan's Law as one and two, and federal law

02:25 - 34.358 ordering these from incarceration is unambiguous, isn't it?

02:25 - 36.294 It is, but

02:25 - 41.065 it is not in the challenged provision in this case that language, upon release

02:25 - 45.303 from incarceration, is actually found in the Registration Procedures

02:25 - 49.140 and Applicability section, not in the section

02:25 - 52.410 that is straight up titled registration,

02:25 - 55.413 which details the category persons

02:25 - 58.683 subject to registration that have the obligation

02:25 - 02.353 based on whether or not they've committed an enumerated effects,

02:26 - 07.391 the Attorney General of the view or the I'm sorry, the state police of the view

02:26 - 12.096 that section 9790 5.2 does not apply to this case.

02:26 - 13.898 I wasn't aware that that was your position.

02:26 - 16.801 It does apply, but it applies

02:26 - 22.006 in context with the provision right before 8.1, which is entitled

02:26 - 26.377 registration and provides who is obligated

02:26 - 31.616 and who is required to register the Registration Procedures

02:26 - 36.120 and Applicability section where you have the upon release language in point two

02:26 - 40.391 is is discussing how to carry out that obligation.

02:26 - 40.591 Right.

02:26 - 43.594 So if you're not released from incarceration,

02:26 - 45.663 you're not required to register.

02:26 - 49.500 Isn't that you language so required to register

02:26 - 53.871 we would say is unambiguous that it is talking about or capturing

02:26 - 59.443 a category of people similar to how if I were to go into my tax accountant's

02:26 - 04.816 office today and ask in my required to file federal taxes, you would say yes,

02:27 - 08.386 because I generally always have this passive requirement

02:27 - 12.857 when that requirement when I perform that requirement or what

02:27 - 17.428 my deadline is, is April 15th, a later date in the future.

02:27 - 18.963 But first we look at

02:27 - 23.367 who is required to register, and then we look at this administrative

02:27 - 28.206 or regulatory scheme of how we perform that that requirement, counselor,

02:27 - 30.007 you keep saying

02:27 - 33.010 that the plain language is unambiguous.

02:27 - 33.845 What does that mean?

02:27 - 38.282 That we'd have to find that the panel erred because of its decision

02:27 - 41.252 of the, quote unquote, the absurdity of CMS,

02:27 - 43.654 interpretation?

02:27 - 46.591 No, Your honor, the absurd results

02:27 - 49.627 conclusion reached by the Commonwealth Court were simply affirmed.

02:27 - 52.630 Were alternative grounds.

02:27 - 56.434 In the first instance, the Commonwealth Court actually agreed

02:27 - 00.238 and had the same position as I'm suggesting here that the plain text

02:28 - 03.875 is, unambiguous, who read point one and point two together.

02:28 - 07.311 One tells you exactly who is required to register.

02:28 - 12.149 The second is how you fulfill that obligation and that requirement.

02:28 - 15.152 So you don't need to

02:28 - 17.255 you don't need to do that, Your Honor.

02:28 - 20.124 Well, I'm not following it.

02:28 - 21.659 He was a we can all agree.

02:28 - 24.662 He was in prison for 96 to 2012, right?

02:28 - 28.332 Yes. By definition, he was not released from prison

02:28 - 31.936 until that release date in 2012.

02:28 - 32.436 Correct.

02:28 - 36.007 But he was required to register because he's not released in prison.

02:28 - 38.809 Why is that complicated? It. It's.

02:28 - 42.780 I don't want to say it's not complicated, but it is not.

02:28 - 45.983 It's not complicated because he was required to register

02:28 - 50.388 under point one of the section we were discussing of Megan's Law two.

02:28 - 54.525 How did then carry out that process?

02:28 - 58.930 How to fulfill that obligation is found in point two.

02:28 - 02.433 Let's say let's have a sentence in prison

02:29 - 05.403 into a term of probation.

02:29 - 07.405 That'll start when I'm a little start

02:29 - 11.742 upon release from prison, am I am I on probation already,

02:29 - 14.745 when I'm in prison or when I'm released from prison?

02:29 - 17.081 It's upon release.

02:29 - 20.618 And that's why, again, that's found in registration procedures

02:29 - 23.921 and applicability, but not in the section regarding

02:29 - 27.491 who is required to register the prior section.

02:29 - 31.295 That is, describing all those who have committed certain

02:29 - 34.298 enumerated offenses are required to register.

02:29 - 39.070 And we know too, that the the scope provision here

02:29 - 40.638 is the preliminary language.

02:29 - 44.041 It's individuals who were required to register

02:29 - 48.446 this register, who is in prison

02:29 - 51.115 that what we know.

02:29 - 53.985 Right. Well, we know where he was. He was in prison.

02:29 - 58.022 But what I'm saying is that we're talking about in this provision, individuals

02:29 - 01.759 who were required to register, whereas the registration,

02:30 - 06.897 the registration procedure section, it's actually doesn't start with individuals.

02:30 - 07.298 It's.

02:30 - 10.201 But then but then his, registration

02:30 - 13.204 period would begin to run on that same day.

02:30 - 14.739 It does it does not.

02:30 - 18.676 And that's and we know that because we have this entire procedure

02:30 - 23.381 section with, with which is where we then have the language of upon release.

02:30 - 26.817 But then under your reasoning, by

02:30 - 29.954 my hypothesis,

02:30 - 33.357 you should be charging a large number of people

02:30 - 36.360 who are incarcerated with failure to register

02:30 - 39.663 because they're required to register.

02:30 - 43.200 Under your reasoning, all these people who are still incarcerated

02:30 - 48.105 on these sex crimes should be charged now with failure to register.

02:30 - 52.543 No, because the way this has been consistently read across

02:30 - 56.947 Megan's Law two and then sauna one, sauna two.

02:30 - 59.383 And given the history, this is the context.

02:30 - 03.721 I think my other side even said we were supposed to read them in harmony

02:31 - 04.955 or ideally in harmony.

02:31 - 07.758 The General Assembly, of course, would want them done in harmony

02:31 - 12.596 and have uniformity and predictability across the series of laws.

02:31 - 14.398 Sure, they want to do a lot of things.

02:31 - 15.933 So the question is, what did they do?

02:31 - 17.401 They did do that here.

02:31 - 20.671 Each time they've amended or updated Megan's Law,

02:31 - 27.545 they've meant and they've repeatedly captured the prior, I would say,

02:31 - 32.349 category of persons that would have fallen under the previous law.

02:31 - 35.219 And each time it builds upon the prior.

02:31 - 40.958 And I would say that from and saw, no one was then trying to also fall

02:31 - 45.129 into compliance with the federal sort, which uses the same required

02:31 - 47.031 to register language.

02:31 - 51.135 And the Second Circuit, which I know is not precedent to this court.

02:31 - 55.372 But they also have said the required to link to register

02:31 - 59.677 language is read naturally and unambiguously the same way.

02:31 - 03.414 Pierce is suggesting here, and not how Siena's doing it.

02:32 - 07.751 So are you saying that that that the your opponents

02:32 - 11.522 construction, which was a construction at the Commonwealth Court in a

02:32 - 13.657 prior opinion, had adopted,

02:32 - 18.329 unreported, I believe, small school you're talking about.

02:32 - 20.965 Yeah, I'm a little familiar with it.

02:32 - 23.701 The, didn't write it.

02:32 - 26.837 But that, that that was

02:32 - 30.674 an unreasonable alternative construction of the statute.

02:32 - 35.312 So I don't recall be saying that it was an unreasonable.

02:32 - 36.547 No, I'm asking you.

02:32 - 39.650 Oh, you believe that the instruction

02:32 - 44.522 given in small scale and given by counsel for the, petitioner

02:32 - 48.993 here is an unreasonable construction, I think.

02:32 - 51.395 I don't know if I want to talk about reasonableness.

02:32 - 53.397 I would say it's wrong. You're going to have to.

02:32 - 57.735 Because if it's unreasonable, then it's.

02:32 - 59.470 Then there's no ambiguity.

02:32 - 03.240 If it is a reasonable alternative construction, then it's ambiguous.

02:33 - 05.943 And we have to look to other rules of statutory construction.

02:33 - 06.277 Right.

02:33 - 09.313 So in those terms I would go with the latter

02:33 - 11.282 that it's that it's unreasonable.

02:33 - 14.785 No, that it would be ambiguous that there's two then possible

02:33 - 18.189 readings of the phrase require individuals who were required.

02:33 - 23.861 Why don't we why don't we then apply the canon we do about retroactive application

02:33 - 27.198 and making it construe it with the most narrow construction,

02:33 - 30.601 because we still are looking.

02:33 - 32.803 I follow

02:33 - 35.806 the canon of the Statutory Construction Act, and we look at 1921.

02:33 - 38.809 See, when a statute is ambiguous,

02:33 - 42.880 and when the text is ambiguous, we look at the 1921, see factors

02:33 - 46.617 and hear each one of those weigh in favor of reading.

02:33 - 52.089 And those are general factors, but there's a specific part

02:33 - 56.393 of the statutory Construction Act that deals with retroactive statutes.

02:33 - 01.532 So we again, what's your answer to the retroactive statute?

02:34 - 05.903 Narrow construed most narrow reading I yeah, it is the most narrow reading.

02:34 - 09.573 I do think, though, that we still have to think about the context

02:34 - 12.576 and the intent of the legislature, even when were there.

02:34 - 17.348 And here they are talking about a oh no, because now you're falling into the trap.

02:34 - 20.918 You're advocating why your interpretation should work.

02:34 - 24.488 But the question really is not whether what you think

02:34 - 28.559 the question is, what does the Statutory Construction Act require us to do?

02:34 - 31.262 And how do we avoid the rule?

02:34 - 33.097 It's like the role of entity in a criminal statute.

02:34 - 35.733 No, this is not a criminal statute, but the statute.

02:34 - 40.771 The General Assembly has told us that when dealing with a piece of retroactive,

02:34 - 44.642 legislation, when it's ambiguous,

02:34 - 48.178 the court must give the language its most narrow reading.

02:34 - 53.984 And the narrower group of of individuals are

02:34 - 59.189 that CMA is suggesting that that is more narrow than the group of individuals

02:34 - 02.326 that we are reading the statute to say, I'm not

02:35 - 05.129 I don't want to suggest that that's not true.

02:35 - 08.565 But I still I understand

02:35 - 11.735 we want the most narrow reading, but we still I don't I don't want the most

02:35 - 14.338 sorry, I was going with your hypothetical.

02:35 - 16.507 I'm just trying to I'm just trying to apply

02:35 - 18.842 what the General Assembly has told us we have to apply

02:35 - 21.845 when construing their statutes, because we can't pull them.

02:35 - 25.082 There's no such thing as true legislative history in Pennsylvania.

02:35 - 27.084 We have to look at what they have told us

02:35 - 30.287 to look at in the statutory Construction Act, says

02:35 - 34.124 if there is an ambiguity in a retroactive statute,

02:35 - 38.362 we must give the language the most narrow of the reasonable interpretations.

02:35 - 42.032 I don't know, I unless I am misreading it.

02:35 - 43.200 It's a fairly clear provision.

02:35 - 46.203 I do not believe you're misreading it, Your Honor.

02:35 - 47.338 But I don't like it.

02:35 - 49.940 I don't want it.

02:35 - 51.108 Right.

02:35 - 57.181 I, I still think that regardless of when it's ambiguous or in an ambiguous,

02:35 - 00.184 you still want to fulfill

02:36 - 03.487 the effectuate the intention of the General Assembly.

02:36 - 07.424 It wasn't interested in the supposed intention, or, as you often

02:36 - 11.395 say, the context, which I think masquerades as masquerading for purpose.

02:36 - 12.663 I'm interested in the text.

02:36 - 16.433 Do we can we just agree that Megan's to was the law

02:36 - 18.068 that replied to we agree on that.

02:36 - 18.969 Sure. Okay.

02:36 - 22.306 Can we agree that Megan's Law to you says

02:36 - 25.376 required to register upon release from incarceration?

02:36 - 28.979 We agree that it says that in the procedure section.

02:36 - 31.982 Yes, it says that in the law. Sure. Okay.

02:36 - 35.986 And so can we agree there was no requirement for him

02:36 - 40.190 to register while incarcerated per that the statutory language

02:36 - 44.161 under the procedures statutory language, but also in Megan's

02:36 - 48.866 Law two, in the section just before it says who is required

02:36 - 51.168 to register, and it's based off of whether or not

02:36 - 53.404 you've committed one of the enumerated offenses

02:36 - 57.107 that people under these categories are required to register.

02:36 - 00.277 The question is, is he released from incarceration?

02:37 - 05.149 But why is that the question when we're now saying required to register,

02:37 - 08.852 is the statutory text and language that's at issue in the scope?

02:37 - 12.689 Provision in this way is the obligation to register

02:37 - 16.794 enforceable while a person is in prison?

02:37 - 21.498 No. If not,

02:37 - 24.501 how is it an obligation to do anything?

02:37 - 25.636 Sorry.

02:37 - 28.639 You said the obligation or the failure to register

02:37 - 31.241 it is the obligation

02:37 - 34.378 to register enforceable while a person is in prison.

02:37 - 37.514 The obligation exists.

02:37 - 40.517 But, in terms of what?

02:37 - 43.821 Fulfilling that obligation doesn't begin until they are released

02:37 - 46.890 to be inventing some other language.

02:37 - 49.993 Is it an obligation to do something or is it not?

02:37 - 52.763 It's an obligation. Period.

02:37 - 55.766 What was he obliged to do while he was in prison?

02:37 - 00.971 He was not obliged to do anything because the procedures and fulfilling

02:38 - 04.942 that obligation, that section does not kick in until they are released.

02:38 - 08.879 But the requirement in itself exists

02:38 - 09.947 based off of

02:38 - 13.517 if they are an individual who has committed one of the enumerated offenses.

02:38 - 18.288 Can you analogize this to a period of probation as part of someone's sentence?

02:38 - 21.725 They're supposed to serve five years in prison,

02:38 - 26.396 followed by a period of, you know, 12 months of probation.

02:38 - 29.600 He's subject to probation while he's in prison.

02:38 - 30.267 But the,

02:38 - 33.937 actual obligation to begin

02:38 - 38.375 probation cannot possibly begin until he's discharged from prison.

02:38 - 41.011 Is that analogous to this?

02:38 - 44.014 I believe so, Your Honor. I.

02:38 - 47.251 I know less about probation, I would say.

02:38 - 50.254 And here it is not

02:38 - 54.191 those facts definitely are not CMS circumstances.

02:38 - 57.494 But our state prisoners are serving probation.

02:38 - 00.564 No, no,

02:39 - 03.700 those that are incarcerated are subject to it if it's part of their self.

02:39 - 06.336 Well, yeah, it's part of the terms of the sentence. Sorry.

02:39 - 09.840 Is it possible, then, that that an individual can be subject

02:39 - 14.011 to their registration requirement as part of the terms of the sentence?

02:39 - 14.611 Let me finish.

02:39 - 17.915 Even though it doesn't commence that obligation doesn't

02:39 - 21.552 commence until he's discharged from prison. Yes.

02:39 - 24.755 Your honor, so he he when he got convicted

02:39 - 27.758 of the particular enumerated offense,

02:39 - 33.096 your position is that he was aware upon that conviction after his sentence,

02:39 - 37.067 he is still required or obligated to register as a sex offender.

02:39 - 38.302 I know what you're saying.

02:39 - 39.536 Generally speaking, yes.

02:39 - 43.840 Your honor, the only slight change here, I would say, is that based off of the year

02:39 - 48.111 he was convicted, we're talking about a retroactive provision in Megan's Law to,

02:39 - 52.249 which took effect and makes a big difference, doesn't it?

02:39 - 57.721 It. Yes, I understand, but it we've also said that in Daniel

02:39 - 01.725 that it the retroactive provision is is fine.

02:40 - 04.528 There's been no challenge that and there's no challenge here

02:40 - 09.199 to retroactivity of any of the Megan's Law versions.

02:40 - 15.405 I do understand that if there is a one,

02:40 - 18.942 if there is two plausible readings

02:40 - 21.945 here, I would just suggest that there could.

02:40 - 25.649 It would be contrary to how federal Sorna is.

02:40 - 29.987 Read to and understand in terms of required to register.

02:40 - 33.357 And there would be

02:40 - 35.892 potentially, an inconsistency

02:40 - 39.930 if CN's reading is accepted here with federal Sorna

02:40 - 43.133 and how required to register is read under the federal Sorna.

02:40 - 48.372 We are required to

02:40 - 50.007 we are also

02:40 - 54.211 Pennsylvania law, not federal statute, I would agree.

02:40 - 59.282 I would just add that here, part of the genesis of Megan's Law

02:40 - 04.388 and the different Sorna versions was to adopt and incorporate federal Sorna.

02:41 - 09.059 It's a little it's a little known fact that, sorry, the feds

02:41 - 12.796 don't have a statutory construction that the feds do.

02:41 - 15.499 Common law construction of statutes.

02:41 - 19.269 We have a statute that we have to follow

02:41 - 23.507 which sometimes yields different results, than a federal court would apply.

02:41 - 27.344 I don't disagree with that, Your Honor.

02:41 - 31.181 Even as you write that there's some ambiguity in required

02:41 - 33.583 to register upon release from incarceration,

02:41 - 37.387 would not the Pennsylvania rule of letter T require,

02:41 - 40.590 as I said, a criminal?

02:41 - 43.694 Yeah, I was exactly what I was going to say, Your Honor, that it's

02:41 - 46.530 my understanding bears thought on this at all, in your view.

02:41 - 50.100 So the rule of law would not apply in this case

02:41 - 53.303 because it's not a criminal statute or criminal

02:41 - 56.306 provision here.

02:41 - 56.773 All right.

02:41 - 58.942 Any other questions?

02:41 - 59.443 Okay.

02:41 - 02.446 Thank you both very much.

02:42 - 10.721 Hello, everyone, and welcome to the Pennsylvania

02:42 - 15.125 Supreme Court's March 2026 oral argument list.

02:42 - 19.730 For this session, the Supreme Court is sitting in Philadelphia, Pennsylvania.

02:42 - 23.700 My name is Maureen McBride, and I'm an appellate lawyer at landmark

02:42 - 25.469 ruling in Westchester.

02:42 - 29.072 And with me is my friend and colleague, Gaetan Alfano,

02:42 - 32.309 who is a trial lawyer at the Patrick Gallo firm.

02:42 - 35.312 The first case we're going to hear

02:42 - 39.883 today is a case called ETA versus NCB.

02:42 - 46.256 And that case asks whether workers can sue for late paychecks

02:42 - 49.593 even if the employer eventually pays.

02:42 - 54.798 This is a case that could affect workers and employers throughout the state.

02:42 - 56.900 The question is

02:42 - 59.903 what happens when your employer pays you late?

02:43 - 05.275 The reason this matters is Pennsylvania, like other states, has wage payment laws

02:43 - 08.445 which require employers to pay,

02:43 - 12.482 regular wages at a at a regular interval.

02:43 - 16.787 If a employer does not pay wages on time,

02:43 - 21.358 the employee can sue for unpaid wages, attorney's fees,

02:43 - 25.562 and then also liquidated damages 25% on the total.

02:43 - 28.799 These penalties are meant to discourage employers

02:43 - 31.802 from paying, wages late.

02:43 - 37.140 In this case, Marcelo Ada was a CEO of NCB Management Services.

02:43 - 41.077 He, As part of his compensation, he was paid a retention

02:43 - 44.815 bonus that he earned while staying with the company.

02:43 - 49.119 But NCB had cash flow problems and for 11 months

02:43 - 52.122 did not pay him the bonuses he was due.

02:43 - 57.227 Eventually, the company paid him those bonuses, but Ada still sued the company.

02:43 - 01.631 He said the company violated the law by not paying on regular paydays.

02:44 - 05.902 That the law requires employers to pay when wages are due,

02:44 - 09.439 not when they feel like paying and because the payments were late.

02:44 - 11.775 He said he was entitled to liquidated damages,

02:44 - 15.045 but the employer said the money has been paid.

02:44 - 17.747 In fact, the money was paid before the lawsuit was filed.

02:44 - 20.317 Therefore, he had no claim.

02:44 - 25.188 But the lower court granted the motion of the employer, Ada,

02:44 - 28.592 and said that the employer did have to pay the liquidated damages,

02:44 - 31.194 although not the entirety that he was seeking,

02:44 - 34.231 because some of that was barred by the statute of limitations

02:44 - 40.070 and denied the motion that the employer had filed seeking to dismiss the claims.

02:44 - 44.207 The employer filed an appeal under the wage, Payment and Collection

02:44 - 48.411 law and made the argument that because the money had been paid,

02:44 - 51.781 there was no basis for liquidated damages.

02:44 - 56.820 The Superior Court ruled in favor of the employee and against the employer,

02:44 - 01.324 and now the Supreme Court is being asked to decide a narrow but important question,

02:45 - 06.396 which is what does the wage, payment and collection law allow suit

02:45 - 10.634 to be filed when wages are still owed at the time the suit is filed?

02:45 - 13.937 Since he had not been fully paid, did he have?

02:45 - 17.974 I'm sorry, since he had been fully paid, did he have any loss?

02:45 - 23.013 Should he, be able to collect a penalty against his employer?

02:45 - 27.317 If the Supreme Court sides with Ada employers who pay late,

02:45 - 30.420 even if they eventually paying full, may still have to pay

02:45 - 34.224 penalties and attorney's fees if the court sides with NCB,

02:45 - 39.362 who employers who eventually catch up may be able to avoid such penalties.

02:45 - 43.934 Either way, the ruling will define what payday means under Pennsylvania law.

02:45 - 46.836 With that, let's go to the court and hear the arguments.

02:45 - 52.342 Good afternoon and afternoon.

02:45 - 57.047 In this discretionary appeal, an employee entered into a bonus agreement

02:45 - 00.383 with his employer and CBA management services Inc.,

02:46 - 04.354 under which NCB agreed to pay the employee

02:46 - 07.357 monthly retention bonus installments

02:46 - 11.194 after experiencing cash flow issues, NCB

02:46 - 15.131 failed to make multiple installment payments in a timely manner,

02:46 - 19.235 but ultimately paid all wages due under the bonus agreement.

02:46 - 23.873 Thereafter, the employee filed a complaint against NCB,

02:46 - 28.812 alleging in relevant part that NCB violated the Pennsylvania Wage

02:46 - 32.882 Payment and Collection law and sought liquidated damages.

02:46 - 36.252 Notably, by the time he filed suit,

02:46 - 39.923 all wages owed under the bonus agreement had been paid.

02:46 - 43.159 The trial court granted summary judgment

02:46 - 47.364 in the employee's favor and awarded him liquidated damages.

02:46 - 53.670 NCB appealed, arguing that the employee did not have a viable claim under the wage

02:46 - 58.008 law because he had no outstanding wages at the time of filing.

02:46 - 01.611 In a split decision, the Superior Court affirmed

02:47 - 06.416 we granted allowance of appeal to determine whether the text of the wage

02:47 - 09.486 law limits relief to employees

02:47 - 12.889 who were owed wages at the time they filed suit.

02:47 - 14.224 Please proceed.

02:47 - 16.826 Thank you, Madam Chief Justice, if it please the court.

02:47 - 18.028 My name is Robert Herron.

02:47 - 20.897 I represent NCB Management Services, Inc.

02:47 - 25.668 in this case, another case involving the construction of the statute.

02:47 - 27.370 This matter

02:47 - 31.408 calls upon the court to interpret certain language in the wage payment law.

02:47 - 33.777 That is clear and unambiguous.

02:47 - 37.313 Specifically, the court needs to focus on three sections of the law

02:47 - 39.282 to resolve this matter.

02:47 - 43.686 The first is section nine A, and that section provides

02:47 - 48.091 that any employee or party to any wages or type of wages

02:47 - 52.729 payable may institute actions provided under this act is

02:47 - 55.832 payable is the key to our argument in this case, Your Honor.

02:47 - 59.803 It means presently owed wages.

02:47 - 03.740 There's no other construction that's viable in connection with that language.

02:48 - 07.310 Similarly, section nine AB,

02:48 - 10.880 allows actions by an employee again

02:48 - 14.617 to whom any type of wages is payable to recover

02:48 - 19.289 unpaid wages and liquidated damages or liquidated damages.

02:48 - 21.791 So the two were connected.

02:48 - 24.794 And that's consistent with section ten of the act

02:48 - 27.564 which discusses liquidated damages.

02:48 - 32.235 And in that section of the act, the legislature provides

02:48 - 35.238 liquidated damages as an add on remedy

02:48 - 39.542 to wages were that were due out, were due at some other time,

02:48 - 42.879 were previously due, but were due at the present time.

02:48 - 45.648 You're on what are the liquidated damages for?

02:48 - 46.483 I'm sorry, Your Honor.

02:48 - 49.486 What are the liquidated damages for? Delay?

02:48 - 50.954 It's a penalty.

02:48 - 56.559 It's a disincentive, for employers who fail to pay wages in a timely manner.

02:48 - 58.061 Could it be, could it

02:48 - 01.531 could it be a delay like a substitute for on calculable, delayed damages?

02:49 - 02.565 Harm?

02:49 - 04.901 Well, I think the act also provides

02:49 - 07.904 for prejudgment interest, Your Honor, which is a make all remedy.

02:49 - 12.375 Okay, so you're saying liquidated damages is is not really liquidated damages.

02:49 - 14.344 It's a civil penalty payable to the planet.

02:49 - 15.445 Yes, that's what I'm saying.

02:49 - 19.015 I guess they probably could have said that instead of they could

02:49 - 22.252 probably said that instead of liquid damages, it's not the same as a penalty.

02:49 - 24.454 It's like, damn it, right? With the court.

02:49 - 25.488 I think some of the courts

02:49 - 28.658 have interpreted at the Andrews case, a Superior Court case,

02:49 - 31.561 interpreted liquidated damages

02:49 - 35.965 as being a disincentive or penalty because the employer,

02:49 - 39.836 did not pay wages, in a timely manner.

02:49 - 43.406 Counsel, can can I ask you,

02:49 - 46.676 just to, explain to me

02:49 - 50.613 what you think the phrase or party to whom

02:49 - 53.783 any type of wages is payable means?

02:49 - 56.553 She said it can only mean one thing.

02:49 - 59.622 Well, I think it applies to everything in that sentence, Your Honor.

02:49 - 04.961 Employee, labor organization or party who had a party?

02:50 - 09.432 B, that's about to be in a state of of a, you know, deceased employee

02:50 - 13.136 could have been in the contractor labor, suppose independent contractor,

02:50 - 17.840 an independent contractor, perhaps, but I don't think that it doesn't make sense.

02:50 - 21.477 It's not logical for that only to apply to the term party

02:50 - 24.280 and not the other parties listed in the statute.

02:50 - 27.850 How would a labor union.

02:50 - 31.621 Sorry, if it's a party, who otherwise

02:50 - 35.491 would be entitled to wages?

02:50 - 36.459 Excuse me?

02:50 - 40.029 It's not an employee who we know receives wages.

02:50 - 44.267 So this party that's being described here

02:50 - 47.637 is someone other than an employee.

02:50 - 50.106 Yes, I think, who is entitled to wages.

02:50 - 50.406 Right.

02:50 - 51.808 Again, it could be the estate

02:50 - 55.144 of a deceased employee, for example, or the secretary of Labor.

02:50 - 58.648 If if the Secretary of Labor brings suit to enforce

02:50 - 01.651 a claim for unpaid wages.

02:51 - 05.355 I think the other, point,

02:51 - 08.591 that's important that the courts review of the case is the

02:51 - 13.062 you know, I just let me just follow through with that if I can.

02:51 - 17.100 If you look at, subsection B,

02:51 - 21.137 which describes the actions that can be brought, yes,

02:51 - 25.375 it refers to or his representative,

02:51 - 28.645 it says party or his representative,

02:51 - 33.616 when that phrase capture the representative of a mistake

02:51 - 37.053 that you just described, it could, your Honor, it could also be a why?

02:51 - 40.590 Why would you say why then party means something else.

02:51 - 43.693 Well, I mean, I'm only assuming that's what it means.

02:51 - 46.362 Your honor, I don't know, for asking something doesn't it?

02:51 - 47.096 Right.

02:51 - 50.800 And I think it can be a representative of class rep.

02:51 - 52.235 It could be,

02:51 - 55.238 again,

02:51 - 57.407 the the estate bringing the claim

02:51 - 00.410 on behalf of a deceased employee.

02:52 - 01.611 It doesn't make sense.

02:52 - 06.215 The seek to sort of separate out party from the other items

02:52 - 08.184 listed in the statute.

02:52 - 10.386 It makes it nonsensical.

02:52 - 13.389 How would how would a labor union build wages?

02:52 - 14.657 Right. Excuse me.

02:52 - 17.694 How would a labor organization be owed wages?

02:52 - 20.830 Well, they would bring the claim on behalf of the union members, Your Honor.

02:52 - 24.100 Well, then that doesn't mean the labor it says labor or your construction

02:52 - 27.103 would requires the, say, labor organization.

02:52 - 29.672 To whom?

02:52 - 31.974 To whom any type of wages is payable.

02:52 - 35.244 Well, I think that refers to, again, the union members upon

02:52 - 36.512 whom they're representing.

02:52 - 38.981 Well, they be the employees, right?

02:52 - 42.085 It could be a class of employees or I think what it says is

02:52 - 43.619 the labor organization

02:52 - 46.823 has standing to bring the claim on behalf of its union members.

02:52 - 50.326 It's the labor organization is in a home,

02:52 - 52.862 it says a party to whom?

02:52 - 56.733 So I just don't know how that could be labor organization

02:52 - 01.671 to whom any type of wages is payable.

02:53 - 05.007 I mean, I think it's an awkward it's just an awkward construction.

02:53 - 08.678 And I was just trying to determine whether what

02:53 - 13.383 the legislature was trying to capture here was some

02:53 - 16.052 party otherwise

02:53 - 19.255 not identified here, who could receive wages.

02:53 - 19.622 Right.

02:53 - 22.725 So that to whom any type of wages is

02:53 - 26.729 payable is just this a description of not

02:53 - 30.333 necessarily in futuro is owed wages,

02:53 - 33.436 but at any point in time wages were payable.

02:53 - 37.340 Well again I think the is the first payable

02:53 - 41.110 sort of answers that question because it's presently owed wages.

02:53 - 44.947 I don't think you can

02:53 - 46.382 rule out

02:53 - 49.385 the word is in connection with how the statute is interpreted.

02:53 - 49.752 Okay.

02:53 - 52.922 Well, subsection A creates a private class of action, right?

02:53 - 55.591 That's what we've several got in here.

02:53 - 56.692 Yes okay.

02:53 - 00.530 So what is the action that can be brought that's in this subsection

02:54 - 03.533 B correct. Yes.

02:54 - 05.401 What what

02:54 - 10.506 indications in subsection B are there that claims

02:54 - 14.310 must be due in owing at the time the action is brought?

02:54 - 19.649 Well, it's again it says any type of wages is payable to recover unpaid wages.

02:54 - 21.617 So you're hanging your entire hand on that.

02:54 - 22.885 Yes I am, Your Honor. Okay.

02:54 - 26.155 How do you resolve the

02:54 - 29.559 30 day grace period for the liquidated damages?

02:54 - 33.362 Well, Your Honor, that's a time period under which an employee,

02:54 - 34.797 in addition to the other remedies

02:54 - 38.634 provided by the act, could sue and recover liquidated damages.

02:54 - 42.505 Section ten, again, of the act says liquidated damages

02:54 - 46.342 or additional revenue available to employees who are due wages.

02:54 - 49.679 I know, but your your your view is that

02:54 - 54.016 as long as I pay

02:54 - 56.853 at some point in time before a liquidated damages award,

02:54 - 00.056 even after 30 days liquidated damages

02:55 - 03.059 become off the table.

02:55 - 06.596 Yes, Your Honor, so you could go all the way to the day

02:55 - 12.268 before trial and moot a liquidated damages claim by paying the unpaid wages?

02:55 - 15.705 No, I think the cutoff date would be the date the lawsuits commenced.

02:55 - 18.741 And that's entirely in the control of the employee.

02:55 - 23.379 The employee can sue, you know, if he's not paid on the next pay

02:55 - 27.717 pay date, he can then bring the suit for on unpaid wages.

02:55 - 31.587 And after 30 days, he can tack on the additional revenue if liquidated.

02:55 - 34.857 So on the 31st day, if there are unpaid wages and they sue,

02:55 - 39.362 they get liquidated damages and the unpaid aspect of it is fixed

02:55 - 40.730 as of the day of the suit.

02:55 - 42.698 That's correct. Okay.

02:55 - 44.233 Thank you for that clarification.

02:55 - 48.571 In terms of subsection B, again, I thought you're going to tell me

02:55 - 52.842 that the indicator in subsection B that your position is correct,

02:55 - 56.946 is that the claim that can be brought in

02:55 - 02.251 court is for unpaid wages and liquidated damages. Yes.

02:56 - 03.319 That's correct.

02:56 - 06.589 Well, that's different than relying solely on is pay

02:56 - 09.692 any party to whom wages is payable.

02:56 - 13.963 Well, I just when I'm looking at this, I'm, I'm looking at what action

02:56 - 18.467 is actually permitted under the statute.

02:56 - 24.240 And it is an action to recover unpaid wages and liquidated damages.

02:56 - 27.209 Right. Correct, Your honor. And that connects the two.

02:56 - 31.614 And that's consistent with section ten, which provides that liquidated damages

02:56 - 35.384 are an additional, remedy to wages that are due.

02:56 - 36.819 In fact, it's calculated,

02:56 - 40.856 at 25% of wages to.

02:56 - 43.326 So unless you have wages,

02:56 - 46.329 do you don't get liquidated damages.

02:56 - 47.797 That's that's correct.

02:56 - 50.399 And that is the time of your reading of B.

02:56 - 50.700 Yeah.

02:56 - 53.169 So at the time of the filing, the pursuit of the,

02:56 - 56.472 the payment of wages and interest, and we've paid interest in this case

02:56 - 01.010 the harm to, to the plain of the employee, it's already been rectified.

02:57 - 03.980 So there are no longer wages payable.

02:57 - 06.983 Well, maybe the harm hasn't been rectified completely

02:57 - 11.587 but by but your argument is simply it was completely

02:57 - 15.558 in their power to get liquidated damages and they sat on their rights.

02:57 - 18.561 That's they could have sued after 30 days

02:57 - 21.631 and gotten everything, but they waited

02:57 - 25.167 and gave you an opportunity to pay and had the suit off. Yes.

02:57 - 27.903 Mr. Ada could have brought suit.

02:57 - 30.573 60 days after the,

02:57 - 33.809 bonus payment was due and argued at that point,

02:57 - 37.146 it was in addition to the bonus, he was entitled to liquidated damages.

02:57 - 40.950 And just just for

02:57 - 44.320 purposes of completion of what's contemplated here,

02:57 - 48.290 if of someone

02:57 - 52.962 who is seeking action under the act foregoes a private cause of action,

02:57 - 56.432 they can make a claim through the Secretary of Labor.

02:57 - 57.033 That's correct.

02:57 - 01.437 In which case they obviously need to have outstanding wages.

02:58 - 02.204 Am I correct?

02:58 - 02.972 That is correct.

02:58 - 04.907 That's the way the statute's written as well,

02:58 - 07.710 and there's no liquidated damages.

02:58 - 12.381 Instead, in conjunction with that claim for unpaid wages,

02:58 - 15.785 the Secretary gets to collect certain penalties.

02:58 - 18.354 That's correct, Your Honor.

02:58 - 18.688 All right.

02:58 - 21.090 Any other questions for Mr. Harden?

02:58 - 21.824 Thank you sir.

02:58 - 22.291 Thank you.

02:58 - 25.294 Let's hear from attorney colleagues.

02:58 - 38.941 Chief justice and members of the court.

02:58 - 40.009 May it please the court.

02:58 - 43.012 My name is Patricia Collins, and in this matter,

02:58 - 47.316 I have the honor of representing Marcelo Ada, who has done me

02:58 - 50.653 the favor of joining me in court today, which is always fun.

02:58 - 55.391 And, I'm happy to be here to argue

02:58 - 58.694 this very interesting issue under the wage payment and collection law.

02:58 - 02.665 And, you know, I just want to start by saying that the,

02:59 - 08.771 the argument proposed by NCB and the dissent, below,

02:59 - 12.942 it would require this court to read a requirement,

02:59 - 17.613 a hurdle into the collection of wages and liquidated damages

02:59 - 23.285 that is not in the text of this statute, not in any clear and unambiguous way.

02:59 - 27.256 And said, as we just heard, it requires some, some,

02:59 - 31.293 some verbal semantics and piecing together of disparate

02:59 - 34.897 sections of the statute to get to that conclusion.

02:59 - 36.966 And it's just not felt there.

02:59 - 41.804 And I would posit that this argument doesn't start at section nine.

02:59 - 44.373 It starts at section three.

02:59 - 47.209 That's what defines the word payable.

02:59 - 50.012 That's what says what the requirement is.

02:59 - 55.184 That's what says with the violation of this statute as and in section three,

02:59 - 01.991 what it says is that every employer shall pay all wages on regular paydays

03:00 - 06.428 designated in advance by the employer or on the date as set forth in agreement.

03:00 - 09.765 And once you failed to do that,

03:00 - 14.703 once you fail to do that, to pay them on the date that those wages are payable,

03:00 - 18.174 that's the first place the statute uses the word payable.

03:00 - 20.976 You have violated the statute.

03:00 - 23.913 So payable and the overall context.

03:00 - 28.350 The structure of this statute payable means the date it was to

03:00 - 32.221 the payday, the date under the agreement, the date it was due.

03:00 - 38.260 And there's no dispute in this case that NCB violated the statute

03:00 - 41.463 by not paying the bonuses when they were payable.

03:00 - 43.666 That's how this statute is set up.

03:00 - 47.136 And if you look at the plain

03:00 - 51.006 language of the liquidated damages section,

03:00 - 54.210 that built into that liquidated damages

03:00 - 58.514 section is a chance for the employer to fix it right.

03:00 - 01.517 And avoiding the liquidated damages it's built

03:01 - 05.454 into that, that they've got 30 days in some,

03:01 - 10.092 some cases and 60 days in our case to remedy that situation.

03:01 - 13.929 And once they don't remedy the failure to pay wages

03:01 - 16.932 when payable, liquidated damages are too.

03:01 - 19.168 That's how the statute reads.

03:01 - 22.137 Counsel the liquidated damages clause.

03:01 - 23.005 Liquidated damages.

03:01 - 25.474 I think Judge Justice Donnelly is going to ask my question.

03:01 - 27.543 So I think you can ask it. Go ahead.

03:01 - 30.846 What the data damages clause actually defines liquidated damages

03:01 - 34.817 is 25% of the amount that that is payable that is due.

03:01 - 38.854 So if those amounts are paid what are payable for liquidated damages.

03:01 - 40.022 What is payable.

03:01 - 43.726 What's payable is 25% of the of the

03:01 - 49.698 the wages that constitute the violations that were payable, the 25%.

03:01 - 51.300 That's not what the statute says.

03:01 - 52.801 Counsel, I wish you were right,

03:01 - 56.438 because I think that truly because I really do think that this is,

03:01 - 58.807 draconian.

03:01 - 01.710 Just in terms of what you're looking,

03:02 - 04.179 you know, to, to effectuate here.

03:02 - 07.049 But the liquidated damages are payable,

03:02 - 10.052 the total amount of wages do

03:02 - 14.456 there are no wages you do in your case.

03:02 - 18.961 And to me, that's consistent

03:02 - 23.866 with a language that says that liquidated damages can be claimed

03:02 - 27.102 in addition to wages that you do,

03:02 - 30.239 which is consistent with subsection B,

03:02 - 35.010 which talks about bringing your claim for wages

03:02 - 39.214 and liquidated damages in the same clause of action.

03:02 - 43.919 And then it goes on at the end to say, lest we need anything else to say, that

03:02 - 47.289 you're talking about wages that are due, that,

03:02 - 51.827 that amount that you do, can be, compromised,

03:02 - 55.297 you know, within the context of,

03:02 - 57.967 the litigation or in settlement

03:02 - 01.170 and so, I mean, I'm, I'm struggling truly,

03:03 - 06.475 I to come to the conclusion that liquidated damages are not tied to

03:03 - 09.812 wages that are due and payable at the time

03:03 - 12.781 that the course of action is brought.

03:03 - 16.852 And I'm happy to walk the course through each part of your question.

03:03 - 19.421 Convince me I'll try to go in order.

03:03 - 21.790 We'll start with the 25%.

03:03 - 24.426 It says 25% of wages do.

03:03 - 26.695 That is the language.

03:03 - 29.231 That's the calculation language.

03:03 - 31.567 Right. Of of wages do.

03:03 - 36.271 But if you if you go back to the beginning of that section, what it says

03:03 - 41.410 is that where the wages are unpaid for 30 days or 60 days, as the case may be,

03:03 - 46.348 then they're then they're entitled to these liquidated damages.

03:03 - 49.618 And the 25% is how they're calculated.

03:03 - 54.189 It doesn't say, for example, I recall this is a remedial statute.

03:03 - 56.692 This is a borderline interpretation.

03:03 - 01.263 It has to go towards the injured party and towards its remedial purpose.

03:04 - 06.035 So it doesn't say, for example, the total amount of wages

03:04 - 09.238 due on the date that you filed a lawsuit.

03:04 - 13.776 And actually, you know, Your Honor, it's built right into your earlier

03:04 - 17.012 I think it was Judge Robson's earlier question as well.

03:04 - 21.383 Let's change this fact pattern and say NCB decided the day before trial

03:04 - 25.020 to pay the to pay their wages. Right.

03:04 - 26.055 If there's pages.

03:04 - 30.359 Look, am I done at trial because no wages are due.

03:04 - 32.995 That cannot be what the legislature intended.

03:04 - 36.298 It would say that it would say that in this statute,

03:04 - 40.436 the counsel, if I can just interrupt and I don't mean to get too far

03:04 - 44.540 into the facts, but these were bonuses that were due and owing to your client.

03:04 - 48.310 My understanding from reading the facts was that when they were doing payable,

03:04 - 49.945 the company didn't have the proceeds.

03:04 - 54.049 They approached your client who agreed you can pay them in the future.

03:04 - 57.820 You're now going back and saying, well, at that point, even though they were paid

03:04 - 01.423 ultimately before we filed suit, we're still entitled to the 25%

03:05 - 03.759 it was doing payable even though he agreed to it.

03:05 - 06.495 And I understand what you're saying, but and the only reason I'm bringing that up

03:05 - 09.331 is because you just said yourself, this is a remedial statute.

03:05 - 11.300 It's meant to help employees.

03:05 - 14.570 But if you have an employee in this particular circumstance who agrees,

03:05 - 17.039 I understand I'm owed the money.

03:05 - 20.042 You can pay it whenever our cash flow gets better.

03:05 - 24.413 How do we how do we factor that into this particular argument

03:05 - 27.416 that you're making for 25% liquidated damages?

03:05 - 30.352 First, that is disputed that

03:05 - 33.822 that my client agreed that was never a finding of fact.

03:05 - 36.325 And that was a fact that was disputed, that Mr.

03:05 - 39.328 IRA agreed to the delay of these,

03:05 - 42.764 that I don't concede that fact file suit.

03:05 - 44.266 Yeah.

03:05 - 48.270 Yes. He filed a civil suit as soon as as soon as this this wasn't paid.

03:05 - 51.507 No, no, thanks.

03:05 - 53.609 But that's not a record in this case.

03:05 - 55.043 And I submit to you it's not relevant.

03:05 - 56.345 There's a three year

03:05 - 59.348 question because you brought up the fact that this is a remedial statute.

03:05 - 03.152 And basically you want to punish employers with this liquidated damage clause

03:06 - 05.187 for not paying wages.

03:06 - 07.022 When do and payable.

03:06 - 10.159 I'm not saying that that's what the statute says.

03:06 - 13.295 The statute says wages are payable on this date.

03:06 - 17.866 And if you fail to make those payments on the dates they're due and 30 days

03:06 - 22.204 or 60 days have passed, you must pay this employee liquidated damages.

03:06 - 24.540 That is what the statute says.

03:06 - 27.943 You said you must pay them or you have the opportunity to seek them.

03:06 - 30.145 It is

03:06 - 36.018 the statutes say they have to be paid in the absence of a lawsuit.

03:06 - 39.021 Or is this more along the lines you can make a claim

03:06 - 42.090 for unpaid wages and liquidated damages.

03:06 - 45.327 I don't want to say it wrong, so I'm checking the language I think it says

03:06 - 48.330 may claim, but.

03:06 - 50.365 The employee shall be entitled to

03:06 - 53.936 claim is the way it reads to claim in a lawsuit.

03:06 - 55.003 In a lawsuit.

03:06 - 57.706 Right. Well, it don't know. It doesn't say in a lawsuit.

03:06 - 00.175 It says he may be entitled to claim.

03:07 - 02.678 How else would they be able to claim them?

03:07 - 07.249 The Secretary of Labor, Fair Labor, in which case you're clearly only entitled

03:07 - 10.485 to pay your wages, had to do

03:07 - 15.524 and in the procedures before the Secretary understood that that's what the

03:07 - 16.525 the procedure is.

03:07 - 20.596 And so you're saying they're two different, two different intents

03:07 - 22.164 between B and C.

03:07 - 25.033 Let me just go back to liquidated damages.

03:07 - 28.203 Again. They are 2060, ten.

03:07 - 29.972 It says

03:07 - 35.911 were wages remaining unpaid for 30 days beyond the regularly scheduled

03:07 - 37.713 pay pay day.

03:07 - 43.919 And no good faith contest or dispute of any wage claim exists

03:07 - 47.923 exists accounting for such nonpayment.

03:07 - 51.660 And then it goes on to say you get in addition, liquidated damages.

03:07 - 54.930 Clearly this clearly anticipates

03:07 - 58.734 that the dispute over the payment of wages exists

03:07 - 03.338 at the time that the claim for liquidated damages is brought.

03:08 - 07.609 I mean, I'm, I'm it doesn't say existed

03:08 - 10.579 or there was,

03:08 - 14.750 a a good faith reason for withholding.

03:08 - 20.622 I mean, it it's it's all written in the context of ongoing litigation.

03:08 - 23.625 And I'll say it again, I mean, I think this is,

03:08 - 28.096 draconian in the sense that it allows an employer potentially,

03:08 - 30.932 to game the system.

03:08 - 34.603 But the but as you just pointed out, as a result of,

03:08 - 40.075 Justice Breyer, since questioning, the only seems to be on the employee

03:08 - 43.078 to bring a claim to enforce

03:08 - 46.081 the unpaid wages context,

03:08 - 51.520 and I just don't know how to read all of these sections together

03:08 - 53.121 to get your point

03:08 - 57.292 where you could bring any kind of action after the wages have have been paid,

03:08 - 59.561 I believe I can

03:08 - 03.231 okay that I was trying to go through the sections as you presented them, but.

03:09 - 03.432 Well,

03:09 - 08.103 it just to the tense of the word exists

03:09 - 11.139 and and the word in addition,

03:09 - 14.810 there's a couple places where we've talked about things in the present tense.

03:09 - 17.813 I think it's in point nine A as well.

03:09 - 20.015 That would require this court

03:09 - 23.885 to ignore that the way this statute works is

03:09 - 28.123 the violation is baked in as soon as the payment is laid.

03:09 - 28.824 Right.

03:09 - 32.227 That's the way, according to section two to,

03:09 - 36.264 to section three, the violation is baked.

03:09 - 38.333 And as soon as it's unfixable.

03:09 - 38.700 Right.

03:09 - 42.904 The violation has it's it's it's only violation if there's no good

03:09 - 47.676 faith basis for withholding or other set off of things of that nature.

03:09 - 53.515 Well, let me be clear, because the good faith section

03:09 - 56.518 is only in the liquidated damages section.

03:09 - 59.221 I mean, the parties might dispute how much wages are due

03:09 - 01.356 and you might have litigation about that,

03:10 - 05.227 but the failure to pay the wages is baked in when they're late.

03:10 - 08.730 That's that's the way the statute works.

03:10 - 13.135 And so they use and that's consistent with how liquidated

03:10 - 16.538 damage awards were right there for a violation.

03:10 - 18.206 That's right. Exactly.

03:10 - 21.543 And that's and that is how the statute, I think is meant to work.

03:10 - 24.713 So when you see the present tense, I think the present tense

03:10 - 28.917 is tied to the fact that the violation has occurred.

03:10 - 33.488 What was the state of play on the date that the wages were due?

03:10 - 35.857 Was there good faith basis for you?

03:10 - 37.192 The failure to pay?

03:10 - 39.995 And so I think that's the way to read,

03:10 - 42.731 the present tense in section

03:10 - 47.235 point ten and section point nine, a because otherwise

03:10 - 51.273 the statutes definition of payable in section three is meaningless.

03:10 - 53.041 Right. Or it has a different meaning.

03:10 - 56.011 Any place you see it in the statute and that is absurd.

03:10 - 58.980 So you're so your argument and I think it's a decent argument,

03:10 - 04.052 is that when the statute says unpaid or payable,

03:11 - 08.723 that's as of the date of the violation, nothing can alter once, once

03:11 - 14.529 they were payable or unpaid under the act, they are forever payable and unpaid.

03:11 - 16.198 That's right, that's right.

03:11 - 18.900 And here's the other thing. But but but then you couldn't.

03:11 - 22.370 That's if there was no good reason for them

03:11 - 25.941 not to be paid as you know, we've talked about there were some,

03:11 - 29.010 rationale for why they weren't paying.

03:11 - 32.047 Well, that would prevent liquidated damages, but that, that wouldn't prevent.

03:11 - 32.747 But, but

03:11 - 35.951 but then you run into the other problem, which we we completely interrupted.

03:11 - 38.954 You going through all this provision of justice Donohue

03:11 - 41.823 asked you to go through, but then you run into the problem

03:11 - 46.361 of liquidated damages being in addition to the unpaid wages.

03:11 - 49.731 If they're already paid, you can't double recover.

03:11 - 53.435 Well, I think you have to read that in addition to and the

03:11 - 57.706 and the same way you read the present tense meaning at the time,

03:11 - 02.377 in addition to the wages that were due at the time when they were payable.

03:12 - 04.179 Yeah, it has to be in addition to.

03:12 - 07.849 So you would have to in addition to getting liquidated,

03:12 - 11.453 I was getting a ward of unpaid wages, which there are none.

03:12 - 13.421 Your client had none.

03:12 - 16.258 No idea they had, pay for purposes of the violation.

03:12 - 16.892 Right.

03:12 - 20.061 But factually, as a matter of double recovery,

03:12 - 23.298 unless under your theory, you also get to recover them again.

03:12 - 25.200 No, I got to recover.

03:12 - 26.701 What wages again.

03:12 - 27.168 Yeah.

03:12 - 29.971 Oh that would. No, I'm not arguing for a double recovery.

03:12 - 34.042 What I'm saying is the word in addition to an and that's in two places as well.

03:12 - 39.381 But council if you look at subsection B again yeah I don't know.

03:12 - 43.919 So I think it's sort of critical where the legislature explain the kinds of action.

03:12 - 44.719 Correct.

03:12 - 47.556 It contemplates the

03:12 - 51.660 liquidated damages claim being brought with the wage claim.

03:12 - 54.029 In fact, it says so. Right.

03:12 - 58.233 It says and in B and in point 90 and it says

03:12 - 02.504 in addition in section ten and I, we can adjust them both the same way.

03:13 - 05.874 And that is if

03:13 - 09.444 one, I go back to my premise, which is

03:13 - 13.982 the unpaid wages we're talking about is the violation itself,

03:13 - 16.985 which is baked in on the date that the early one.

03:13 - 22.223 And then two,

03:13 - 25.760 the an employee is always entitled

03:13 - 28.763 to unpaid wages to whatever is not paid.

03:13 - 29.731 They always are.

03:13 - 32.601 And that is the traditional way that it comes in.

03:13 - 36.838 And if the legislature had intended that there be some, that it's

03:13 - 40.208 going to be outstanding on the date of filing suit or the date

03:13 - 43.912 you go to the Secretary of Labor like it did with the Secretary of Labor,

03:13 - 47.482 you got to be on paid on the date you go to the Secretary of Labor.

03:13 - 50.752 It would say that here it would be different.

03:13 - 52.754 Why would it be different?

03:13 - 54.656 Why would the Secretary of Labor have it?

03:13 - 58.960 Because you're using the the resources of the Commonwealth to pursue wages

03:13 - 00.395 that were already paid.

03:14 - 05.266 And what what is the language that you're relying on in subsection

03:14 - 09.938 C, which is not a private class of action, but going through the,

03:14 - 13.742 it's in the alternative.

03:14 - 17.045 So that to me means it's an alternative

03:14 - 20.048 to what you could get in subsection B,

03:14 - 24.019 you're bringing a subsection B claim

03:14 - 27.756 in the alternative bank and go through the secretary of the company.

03:14 - 28.256 That's right.

03:14 - 33.628 And that section C has built into it that you need to need to be paid, that

03:14 - 36.765 you need to have someone pay wages.

03:14 - 39.534 But that's not the right way to read

03:14 - 42.237 B, because that requirement is an indie.

03:14 - 45.073 Why would it be and why wouldn't they have repeated that requirement?

03:14 - 49.411 And b that what about what about the actions by an employer?

03:14 - 51.112 I, I like your theory.

03:14 - 55.650 I it makes it makes sense in the sense that when you're talking about wages

03:14 - 58.687 payable, you're talking about timely payable,

03:14 - 01.690 payable and at the date of the violation I get that.

03:15 - 05.794 But you run into the other use of the phrase unpaid wages,

03:15 - 07.562 which is different from wages payable.

03:15 - 12.000 It says wages is payable to recover unpaid wages

03:15 - 15.303 and liquidated damages.

03:15 - 18.973 They have to bring a lease under this civil cause of action

03:15 - 21.009 that is authorized an action.

03:15 - 24.012 You can't just bring an action for liquidated damages.

03:15 - 25.113 This says you can.

03:15 - 29.651 You have to bring an action to recover unpaid wages and liquidated damages.

03:15 - 30.852 Not or.

03:15 - 33.388 I don't read

03:15 - 37.025 this as excluding a claim for liquidated damages only that

03:15 - 41.396 how do you reconcile to recover unpaid wages and liquidated damages?

03:15 - 44.799 I think it's meant to be inclusive, not exclusive.

03:15 - 48.470 In other words, an employee has these remedies available to them.

03:15 - 52.674 You can go file a suit, you can get on paid wages, or you can get liquidated.

03:15 - 54.976 Well, and if the if the converse were true,

03:15 - 59.481 then your example of settling on the courthouse steps a

03:15 - 03.318 someone pays the unpaid wages the day before you go to trial.

03:16 - 06.588 That would eliminate the liquid liquidated damages claim.

03:16 - 08.456 That can't be true. That can't be true.

03:16 - 10.759 Well no, but by that time, your suit is joined.

03:16 - 13.928 By that time you when you filed the suit, you have to have

03:16 - 17.232 you have to seek recovery of unpaid and liquidated damages

03:16 - 20.769 with all due respect, I don't see that language here.

03:16 - 23.972 I mean, you just disagree with how we're

03:16 - 26.775 how I'm proposing to read unpaid wages and liquidated damages.

03:16 - 32.080 You think it's unpaid wages and liquidated damages and punitive damages or blank?

03:16 - 35.216 You're saying you're reading it a sort of an exclusive one.

03:16 - 35.984 Choiceless. Right.

03:16 - 41.823 And the legislature had available it to it the opportunity to say should.

03:16 - 45.493 And they remain unpaid on the date of filing suit.

03:16 - 48.897 If they're filing suit appeared anywhere in here, maybe

03:16 - 53.368 I'd have a harder time with this argument, but I did the way it struck and it

03:16 - 56.471 and I think by it, our interpretation is right.

03:16 - 59.374 And the Superior Court was right, and the trial court was right

03:16 - 01.609 for a couple of other reasons.

03:17 - 05.880 If you look to the attorneys fees provision, just by way of example, how

03:17 - 08.917 the statute is structured, the attorneys fees

03:17 - 12.086 provision is keyed to judgment.

03:17 - 17.125 So that's a place where the General Assembly went out of its way.

03:17 - 19.327 To put in a timing requirement.

03:17 - 22.797 You need to have a judgment in order to get your attorney's fees.

03:17 - 28.069 So obviously that drafting was available and known to the legislature

03:17 - 29.070 when they drafted this.

03:17 - 32.874 How would that make how it would how would eternity's ever be awarded

03:17 - 33.842 prior to judgment,

03:17 - 35.210 though

03:17 - 38.213 there are other statutes out there, remedial statutes

03:17 - 41.249 in the world that have different language relating to attorney's fees.

03:17 - 44.319 But the timing piece of this statute is that you have to have a judgment.

03:17 - 47.655 So you're saying unpaid

03:17 - 52.260 wages in subsection B means unpaid

03:17 - 55.263 wages on the date

03:17 - 57.999 that they were due

03:17 - 01.002 on paid wages on the date that they were to.

03:18 - 04.606 But it's an action to recover unpaid wages.

03:18 - 05.540 That's the problem.

03:18 - 11.646 It's an action to recover unpaid wages, not wages that are due, which relates

03:18 - 16.084 back to your original argument, which I could buy into.

03:18 - 19.921 But this is this is talking about something else,

03:18 - 23.191 talking about unpaid wages.

03:18 - 26.761 And then you go to liquidated damages and it's based upon

03:18 - 29.731 unpaid wages.

03:18 - 30.865 And I don't believe it.

03:18 - 34.435 I think the only way to look at unpaid wages

03:18 - 39.741 is a calculation of what was payable, what was due on the due date.

03:18 - 44.712 That is what the on that is the unpaid wages to which the statute is referring.

03:18 - 48.983 Otherwise you arrive in an inconsistent result.

03:18 - 53.521 In which the inconsistent result

03:18 - 55.990 that the statute is built around

03:18 - 59.794 remedying that the statute is built around the concept

03:18 - 02.997 that the violation occurs on the date it's late, right?

03:19 - 04.165 That's the violation.

03:19 - 08.169 It's on the employee to enforce the,

03:19 - 11.472 provision.

03:19 - 13.741 Of course, that's where the secretary of Labor, but

03:19 - 17.679 it's on the employee to either go to court or go to the Secretary of Labor.

03:19 - 18.513 It's the employee.

03:19 - 21.149 Somebody has to go to the Secretary of Labor.

03:19 - 21.683 Correct.

03:19 - 22.417 That's correct.

03:19 - 25.420 It's on the employee to do those things.

03:19 - 30.091 But the timing that the employee chooses is not relevant.

03:19 - 33.394 This statute has a three year statute of limitations.

03:19 - 35.830 That's the only relevant timing.

03:19 - 37.231 It's relevant in a sense.

03:19 - 41.202 It's the sense that you might give up the opportunity to get, quote,

03:19 - 43.037 to recover unpaid wages.

03:19 - 48.076 I'm so sorry.

03:19 - 48.843 I'm not sure.

03:19 - 53.514 It's it's it's when you initiate the lawsuit is relevant

03:19 - 58.286 to whether you can quote recover unpaid wages use.

03:19 - 02.924 Your point is I can always sue to recover liquidated damages

03:20 - 06.060 even if I don't have unpaid wages.

03:20 - 11.432 But, but but if you delay, you might be avoiding.

03:20 - 11.833 You might.

03:20 - 15.370 You might lose the opportunity to seek unpaid wages,

03:20 - 18.906 but you always have the authority to get the ability to get liquidated damages.

03:20 - 19.007 Right?

03:20 - 22.410 Well, presumably the employee, as in this fact pattern,

03:20 - 25.813 maybe already got them from from some other mechanism.

03:20 - 28.149 Right. Because you didn't sue right away. Right.

03:20 - 32.120 And there's lots of reasons that are not dilatory

03:20 - 35.923 that an employee might not have filed a claim yet.

03:20 - 39.994 Maybe they didn't have the money to hire a lawyer or pay the retainer.

03:20 - 43.064 I think that's why you could go to the Secretary of Labor.

03:20 - 46.601 I think that's why this statute provides for just give notice

03:20 - 48.770 to the Secretary of Labor.

03:20 - 52.407 And then the Secretary of Labor takes over and processes the claim.

03:20 - 56.577 You lose your right to liquidated damages and you that scenario.

03:20 - 59.580 But, it's a true self-help.

03:20 - 04.852 Well, that's presuming that that a, a regular employee, you know, out there

03:21 - 08.222 doing his job every day knows that this remedy even exists.

03:21 - 11.526 I mean, that would be a quite, a quite an act

03:21 - 16.497 not consistent with the remedial purpose of this statute to build in a.

03:21 - 18.633 Gotcha. Well, let's go. Gotcha.

03:21 - 20.468 I mean, for for tab,

03:21 - 24.338 an employee to bring a lawsuit in court has to know the remedy exists.

03:21 - 26.474 There's just two different

03:21 - 29.477 ways to approach remedy under the statute.

03:21 - 29.977 Yeah.

03:21 - 31.479 My point that yes.

03:21 - 34.482 My point being that that's something lawyers know

03:21 - 36.451 that's not something ordinary employees.

03:21 - 40.121 Now, are there any other questions for Miss Collins?

03:21 - 43.658 All right. Thank you both. Very well done.

03:21 - 46.661 Thank you.

03:21 - 52.500 This will conclude our,

03:21 - 55.770 spring argument session in Philadelphia.

03:21 - 00.074 I'd like to thank PCN for broadcasting our,

03:22 - 04.545 sessions for educational purposes to the public.

03:22 - 06.114 We appreciate that.

03:22 - 11.419 I'd like to thank our court crier, Brian Miller, and our auditory Caitlin Gorman,

03:22 - 14.722 along with our court security,

03:22 - 17.792 John Evans, Scott Towne and Gary Shovlin,

03:22 - 22.630 as well as the Philadelphia police and their special dignitaries unit.

03:22 - 25.700 Mr. Miller, you may adjourn the court

03:22 - 28.703 order for your.

03:22 - 35.243 Legal.