00:02 - The Honorable Chief Justice

00:04 - and Justices of the Supreme Court of Pennsylvania.

00:09 - Oh, yeah.

00:10 - Oh, yeah. Oh, yeah.

00:11 - All manner of persons we stand Belmondo of cognizance

00:14 - or who otherwise have business before this.

00:16 - You know, if you're in the shop.

00:18 - God save the Commonwealth in this hour.

00:20 - Please be seated.

00:34 - Welcome to the first day of our spring oral argument session here

00:38 - in the Harrisburg courtroom of the Supreme Court of Pennsylvania.

00:42 - At our majestic state Capitol building.

00:46 - As you may know, the Pennsylvania Supreme Court

00:48 - is the oldest appellate court in North America.

00:52 - Our roots date back to William Penn's provincial court of 1684,

00:58 - and our Supreme Court was formally established pursuant

01:01 - to the Pennsylvania Judiciary Act of 1772.

01:06 - In 2022, we celebrated our 300th anniversary

01:11 - with a special session in Philadelphia.

01:14 - We on this bench are very proud of our rich histories.

01:18 - Attorneys who have argued before this court are aware that I like to point out

01:22 - some of the splendid works of art displayed in our magnificent courtrooms.

01:27 - First, as you may have noticed, this courtroom

01:31 - is not in its usual pristine condition.

01:35 - In 2020, we noticed water damage to the intricate plasterwork

01:40 - that adorns the northeast corner behind the bench.

01:44 - Since that time, our Supreme Court administrator Chris Nace,

01:49 - and our court crier, Brian Minner, have diligently worked with the Department

01:53 - of General Services and Capital Preservation Committee through its

01:57 - executive director, David Craig, to address the water intrusion.

02:03 - And what you can imagine is a daunting process

02:06 - in such a historic courtroom.

02:09 - That's one of the reasons why Moses

02:11 - is now on the floor rather than on the wall.

02:16 - Following extensive exterior

02:18 - repairs in 2023 and 2024, our court made the difficult decision

02:23 - to allow conservation specialists to remove damaged surfaces

02:29 - and allow the underlying masonry to dry.

02:33 - While we are optimistic

02:34 - that the exterior work resolve the issue, additional efforts

02:38 - may be necessary to prevent water from intruding into this beautiful space,

02:44 - and our court administration will continue to work diligently to restore

02:49 - this artistic treasure of the Commonwealth to its original grandeur.

02:54 - As architect Joseph Houston envisioned

02:57 - this building to be a palace of art,

03:01 - I highly encourage everyone in attendance to visit the rotunda,

03:05 - Legislative Chambers, and the Governors Reception Room

03:09 - with an eye toward the beautifully created artwork,

03:13 - particularly the famous Violet Okoli

03:16 - murals installed in 1927.

03:21 - Over the past 26 years, I've had the privilege

03:24 - of sitting in this bed, in this courtroom, on this bench, to see

03:29 - the majesty of these beautiful murals by Violet Oakley,

03:33 - a woman of incredible talent and vision.

03:37 - What a treasure this confluence of history

03:40 - and art provides to the people of our Commonwealth.

03:45 - The Capitol murals project was the largest

03:48 - commission ever awarded to an American woman.

03:51 - Remarkably, Violet Oakley, a young Philadelphia

03:55 - artist, was selected for this daunting assignment

03:59 - at a time when women could neither vote

04:02 - nor hold elective office.

04:05 - On May 23rd, 1927,

04:08 - the Supreme Court of Pennsylvania convened to unveil the Majesty

04:13 - the Majestic Violet Oakley murals that you see around you.

04:18 - Miss Oakley was selected by the Capitol's

04:21 - architect, Alfred Houston, in the hopes that providing such an opportunity

04:26 - might inspire other women to pursue art.

04:30 - At the time, such a commission was a radical concept,

04:34 - and she was the first female artist

04:37 - ever to receive a large public commission.

04:41 - Miss Oakley proved to be up to the task.

04:44 - Already a well-regarded artist from Philadelphia.

04:47 - Oakley's work in this building made her world renown.

04:53 - Ultimately, she devoted 25 years of her life,

04:56 - from 1902 to 1927,

05:00 - to painting 43 murals in our Capitol.

05:04 - I trust that no one who works here takes this gift for granted.

05:08 - While there might be many things that our three branches

05:11 - of government disagree on, I know that our judiciary,

05:15 - along with legislative and executive branches, all agree

05:20 - that we have been

05:21 - blessed with the privilege of serving the Commonwealth

05:24 - and that our lives are enriched by the beauty

05:28 - of these inspirational murals in our magnificent Capitol.

05:34 - Before we hear the first case,

05:36 - I would like to remind Council of a few things.

05:39 - Appellants.

05:40 - Counsel, please approach the podium when your case is called.

05:43 - I will then give a short summary of the case.

05:46 - Please begin by introducing yourself

05:49 - and your co-counsel and identifying the party you represent.

05:53 - The justices are familiar with your cases, so we ask that you avoid

05:58 - any unnecessary recitation of facts or procedural history,

06:03 - and instead focus on the main issues on which we granted review.

06:08 - Counsel is welcome to rely on their briefs for any particular issues.

06:13 - In cases where there are multiple parties represented by separate counsel.

06:19 - Council should avoid repeating the same arguments as prior counsel.

06:23 - Please do not interrupt the justices when we are asking you a question, a justice.

06:28 - This question is not meant to trip you up.

06:31 - Rather, it indicates that there are particular issues

06:34 - we wish to explore further.

06:36 - I remind you that we do not allow rebuttal.

06:39 - Finally, while we have no set time limit for argument, I will advise counsel

06:44 - when the court is satisfied that all of its questions have been answered

06:48 - and at that time, I will ask that you conclude your argument.

06:52 - Mr. Miller, please call the first case

06:56 - we were in.

07:02 - For the.

07:06 - Welcome to the Harrisburg courtroom of the Pennsylvania Supreme Court.

07:09 - For additional arguments from the court's May 20th 26th argument session.

07:14 - I'm Bob Gracey, a retired judge of the Pennsylvania Superior Court

07:19 - and an appellate attorney in the Section and Stump Appellate advocacy Group.

07:23 - I'm joined by Brigid Landy Cary, an appellate attorney with the Appellate.

07:27 - Law and Post-trial Practice Group at McNeese Wallace in New York.

07:31 - Brigid will introduce the first case.

07:34 - Hello.

07:35 - The first case, for oral argument today is in Cleveland.

07:39 - Brothers company versus Arcadia North Land.

07:43 - This case involves a construction payment dispute requiring the court

07:47 - to interpret a statute known as the Mechanic's Lean Law of 1963.

07:52 - You may have heard of a mechanic's lean in the context

07:55 - of a dispute between a contractor and a property owner.

07:59 - A mechanic's lean is a legal hold placed on the title to the property,

08:04 - typically used by contractors, subcontractors, or suppliers

08:08 - when they complete authorized work or provide materials to a property

08:13 - but are not paid for that work or materials.

08:16 - Pennsylvania's Mechanics Law of 1963 is the.

08:20 - Commonwealth's statute that provides for and governs this process.

08:25 - In this,

08:26 - the central question in this case is whether the term materials

08:30 - includes the heavy equipment rented and used in a construction project.

08:35 - The justices will have to decide whether the owner of the equipment rental company

08:40 - can place a line on the property where the work was done, even though

08:44 - the equipment itself was never permanently built into the finished product.

08:49 - As may be the case with other materials

08:53 - in this case, Cleveland Brothers rented a large excavator to a contractor

08:58 - that was used for about ten months to dig and grade land

09:02 - for an industrial park owned by Arcadia North Land.

09:07 - The company that rented the excavator did not pay for that equipment.

09:11 - So Cleveland Brothers filed a mechanic's lean against the property.

09:15 - The trial court sided with Cleveland Brothers, awarding it

09:18 - roughly $159,000,

09:21 - but the Superior Court and Intermediate appellate court reversed that decision,

09:27 - ruling that under the law, only equipment physically built

09:30 - into the finished structure can provide the basis for a lean

09:35 - on appeal to the Supreme Court.

09:37 - Cleveland Brothers now argues that the law's plain language

09:41 - covers any equipment reasonably necessary for

09:44 - and actually used in construction, not just items cemented into a building.

09:50 - The general contractor, called blue Rock, counters

09:53 - that the law has never permitted liens for rented equipment,

09:57 - and that only the legislature, not the courts, can expand those rights.

10:01 - Cleveland Brothers asks the Supreme Court

10:04 - to reverse the appeals court and reinstate the trial court's judgment.

10:08 - Blue Rock asks court to affirm the appeals court's

10:11 - decision and dismiss the lean.

10:15 - Let's listen in on the oral argument

10:16 - in Cleveland Brothers versus Arcadia North Land.

10:21 - In this appeal by allowance, we are asked to determine

10:24 - whether the mechanic's lean law authorizes a lean against an owner's property

10:29 - for unpaid rental charges related to the use of construction

10:34 - equipment, specifically, an excavator

10:37 - used for excavation, grading, and other preparation work on the property

10:42 - during the development of an industrial park.

10:46 - Please proceed.

10:47 - Thank you, Your Honor.

10:48 - Thank you.

10:49 - Chief Justice Todd and all the honorable justices of this court.

10:53 - May it please the court.

10:54 - My name is Alisha Schmidt, and I represent Cleveland Brothers.

10:58 - Equipment Company in this matter.

11:03 - This case

11:04 - involves the construction of a statute, the Pennsylvania Mechanics Lien.

11:07 - Law of 1963, as it's been amended and as it exists today.

11:12 - The matter calls upon the court to interpret certain language

11:15 - within our Lean law, which we believe is clear and unambiguous.

11:19 - There are four sections of the law that we believe are

11:21 - particularly relevant, which has been addressed in the briefing.

11:25 - The first section of the Lean Law is section 1301, a

11:30 - which is it's not the first thing law, but rather the one that we would like

11:34 - the court to consider first.

11:35 - And it creates the general right to lean in relevant part.

11:39 - That statue provides, that every improvement and the estate

11:44 - or title of the owner in the property shall be subject to lean

11:48 - for the payment of all debts due to the contractor or subcontractors

11:53 - for labor or materials furnished in the erection

11:57 - or construction or alteration, or repair of the improvement.

12:03 - And the next three sections that I'd like to discuss

12:06 - define several of the terms in that section that I just read.

12:10 - Section 1301, the terms that I think are important, to define here for

12:15 - this case are subcontractor, erection, construction, alteration or repair.

12:20 - And materials.

12:22 - And in short, our argument is that Cleveland Brothers was a subcontractor

12:27 - that furnished materials for the erection or construction of the industrial park.

12:31 - That's the real property at issue in this case.

12:34 - Specifically, Cleveland Brothers, as the court noted,

12:36 - furnished a heavy equipment excavator that was used to excavate the site

12:40 - as needed, for the construction of the industrial park.

12:45 - And in this case, there's no real dispute that Cleveland Brothers

12:48 - is a subcontractor.

12:49 - The Superior Court acknowledged that Cleveland Brothers was a subcontractor.

12:54 - And that's significant because under section 1201 five,

12:59 - the definition of subcontractor, it includes one who, by contract

13:04 - with the contractor or another subcontractor, erects, constructs, alters,

13:09 - or repairs and improvement, or any part thereof, or furnishes labor

13:14 - or supplies or hauls materials,

13:17 - fixtures, machinery, or equipment

13:20 - reasonably necessary for and actually used therein.

13:23 - So here Cleveland Brothers, subcontractor to a cell phone firm.

13:27 - Yes, your honor.

13:29 - And in this case, Cleveland Brothers

13:34 - contracted with another subcontractor, which in this case was Dubinsky Brothers.

13:38 - Who was a subcontractor to the general contractor, blue Rock,

13:43 - who worked for Arcadia, the property owner.

13:48 - But Cleveland brothers contracted to supply

13:51 - or haul materials, machinery or equipment.

13:54 - And that language is from the definition I just read.

13:57 - I e the excavator that was reasonably necessary

14:00 - and actually used in constructing the industrial park

14:04 - and as the trial court ruled, as a matter of fact.

14:06 - And it's not disputed here.

14:07 - The excavator was reasonably necessary and actually used.

14:10 - It was used for ten months and over 600 hours.

14:13 - The GPS data shows it was over the site during that period, and the trial court

14:17 - ruled that as a matter of fact, it was integrally, necessary for

14:22 - the construction of the industrial park which was ultimately constructed.

14:26 - You know, upon the excavation done by the excavator.

14:30 - Next, the

14:32 - next section we would like to look at is 120112,

14:36 - which is the definition for erection, construction, alteration or repair.

14:41 - And we merely want to note that that section

14:43 - explicitly includes excavation, grading and filling

14:47 - performed incidental to the construction of an improvement

14:50 - within the term erection, construction, alteration or repair.

14:53 - So any place you hear erection, construction, alteration or repair,

14:56 - you can fill in, excavation.

14:59 - And those terms should be synonymous.

15:02 - And therefore that definition clearly covers the work done by the excavator.

15:07 - Excavation is done by an excavator.

15:09 - So that work is clearly included.

15:12 - Finally.

15:13 - And then this is the, definition that the trial court.

15:17 - And I'm sorry, not the trial court.

15:18 - The Superior Court focused on, with section

15:21 - 1201 seven, which is the definition for materials.

15:25 - And I'd like to focus on the central portion,

15:28 - the core of that definition, which is not what the Superior Court did.

15:33 - And we can obviously get to that in a minute.

15:35 - But the core of that definition defines materials as building materials

15:39 - and supplies of all kinds.

15:43 - And we

15:43 - believe that the excavator clearly falls within that definition because building

15:48 - materials and supplies of all kinds, while it is broad, it's not ambiguous.

15:53 - Well, isn't isn't, machinery,

15:56 - machinery and equipment in the next slide.

16:00 - Isn't that a lot more akin to what an excavator is than materials and supplies?

16:06 - So machinery and equipment is included in the next part.

16:10 - But that next part, which is.

16:13 - And we can get to it now.

16:16 - Machinery.

16:17 - I'm sorry. Materials also includes

16:20 - machinery and equipment that is incorporated therein.

16:24 - And that's the part, Your Honor, is referring to.

16:25 - That and also includes language

16:28 - is necessarily adding to the first part of the definition.

16:32 - It can't take anything away from it.

16:34 - And that's,

16:35 - you know, common statutory construction and common usage of the language.

16:39 - So just because that word equipment appears in that section,

16:43 - it can't take away the fact that it

16:46 - it doesn't mean that that's necessarily the section that applies.

16:50 - The section that applies to you. I'm sorry.

16:52 - Oh, go ahead.

16:55 - I'm missing that point.

16:56 - I thought the second part of 1201 seven actually helped you did.

17:01 - I missed something there. So,

17:05 - so our position is that

17:08 - the first section is the more applicable section.

17:11 - We believe that we can also fit into the second part of the section,

17:15 - but we don't believe that that's the most natural

17:16 - reading of the first section, because you want to avoid and include

17:20 - the incorporated into it, which is really the meat of the case that the question

17:25 - is the real meat of the cases is it isn't the real meat in the case,

17:31 - whether you fit the incorporated

17:32 - into the improvement, isn't that where the real debate is here?

17:36 - We don't believe so.

17:37 - And that is certainly where the Superior Court focus.

17:39 - But we don't believe that that's the correct

17:40 - interpretation of the statute, the natural reading of that section.

17:44 - And I have an analogy I think that may be helpful,

17:48 - because I was, you know, so the statute itself reads.

17:55 - Keeping

17:58 - materials means building materials and supplies of all kinds

18:01 - and also includes fixtures, machinery and equipment

18:05 - reasonably necessary to and incorporated into the improvement.

18:08 - And an analogy that I think may be useful is, if, you know, you

18:12 - imagine a new restaurant came to town and it's a, it's a dessert restaurant.

18:15 - It says, you know, we're going to sell desserts and sweets

18:19 - of all kinds of all kinds.

18:22 - And our menu also includes savory pies and pastries.

18:26 - And I said to my friend, oh, I'm so excited to go to that restaurant.

18:28 - I really would like, you know, probably an apple pie would be great.

18:32 - Or a blueberry pie or maybe a Danish.

18:35 - You know, if your friend turned to you and said, oh, they won't sell that there

18:37 - because the it says savory pies and pastries,

18:40 - so they won't have sweet pies and pastries.

18:44 - That's nonsensical.

18:45 - I think we can all agree that that doesn't make any sense.

18:48 - And just so here, because we fit into the first section,

18:53 - it's it's tempting to just look at that second part and it's like, well,

18:56 - it said two word pies. So pies.

18:59 - You know, that second section must cover the whole universe of pies,

19:03 - but that's not correct in the, in analogy.

19:05 - And I think that that's not correct here.

19:07 - Wouldn't if you're if you are correct, wouldn't

19:11 - the legislature have written including without limitation, instead of

19:16 - using the word also because when we read the word also,

19:21 - aren't we being signaled?

19:23 - There's this other thing.

19:26 - I do agree.

19:27 - And that's that's where the analogy comes in, because

19:31 - while

19:33 - a different thing is involved in the second section,

19:35 - it doesn't take away from the first section.

19:38 - And I think it may help to indicate.

19:41 - So here's what I think the second half means.

19:44 - Okay.

19:45 - And I think this may answer the question, when it says building

19:50 - materials and supplies of all kinds, that means just what it says.

19:53 - And then it says and also includes fixtures, machinery and equipment.

19:58 - I believe that that second part is meant to include things

20:02 - that are not just fixtures, but things that are

20:04 - in the nature of fixtures which may not meet the definition.

20:07 - Well, what's the definition of fixtures?

20:09 - It's things that are physically attached to a building.

20:12 - And this is cited in our, briefing.

20:15 - No, a biennial of Harrisburg

20:17 - could have a better argument if that last stand was an or, I guess,

20:22 - I'm sorry, which last hand?

20:25 - Paragraph seven.

20:26 - You would have a better argument if it was an Or, rather

20:29 - than an incorporated into the improvement.

20:35 - And reasoning necessary.

20:36 - And so so I think

20:39 - if this part of the statute is ambiguous, that maybe it is useful

20:43 - to look at the which

20:47 - useful to look at the comment

20:49 - and the comment to, that section 1201 seven

20:55 - says the act of 1901 contain no express definition of materials.

20:58 - This definition follows existing law,

21:01 - which use the phrase reasonably necessary for and actually use therein.

21:04 - But then, and this does not included in the briefing.

21:06 - But I do think it's important the enumeration of the types of fixtures

21:10 - subject to lean contained in section two, act 1901, is omitted as unnecessary.

21:17 - And I think that what they're doing with that second half of the definition

21:22 - is omitting the long list of fixtures and other things

21:25 - that were similar to fixtures as unnecessary.

21:28 - And if and I do have that section of the council before you go there,

21:33 - I'm, I'm, I'm, I'm not following

21:37 - your construction of the first part of the definition

21:40 - materials means building materials and supplies of all kinds. Yes.

21:44 - Your honor, if you're saying that's a broad, all encompassing

21:50 - thing to include machinery and equipment.

21:52 - Exactly.

21:54 - If that's true,

21:54 - and it's so broad and encompassing, why did the General Assembly do the.

21:58 - And also because it seems to me

22:02 - that everything that comes after the and also

22:05 - would fit what you believe is a broad,

22:09 - a broad,

22:11 - definition or phrase, building materials and supplies of all kinds.

22:15 - So why the additional and also if, if it's as broad as you say it is,

22:19 - I think it is to cover, but again, the list of fixtures

22:24 - and fixture like things that was taken from the 1901 statute.

22:28 - But, but but you but your argument is premised

22:31 - on the idea that the first clause is all encompassing.

22:36 - So that would so you're saying it's basically surplus, which.

22:41 - I don't believe it's surplus.

22:43 - I think that it's meant as clarification language, and it's

22:46 - meant to ensure that those words are not limited unnecessarily.

22:49 - Well, that would be to Justice Rex Point.

22:51 - Then it would be including but not limited to.

22:53 - It wouldn't be.

22:54 - And also and also I, I'm following your argument from the from the jump

22:58 - your argument from the jump was there's this broad term,

23:02 - which is what we're relying on, which includes our staff.

23:06 - And then there's this and also thing that we don't necessarily fall under.

23:09 - So, so but the problem you have I that I'm struggling with is your

23:13 - and also fits under your broad definition as well.

23:18 - So I'm trying to discern the General Assembly's intent here.

23:21 - If, if this statute ended

23:24 - means building materials and supplies of all kinds, period.

23:29 - Everything that follows the

23:31 - and also would arguably be in there, as would your staff.

23:34 - But it's the and also language that cuts

23:36 - against your point that everything before and also is all encompassing.

23:40 - You see what I'm saying?

23:41 - I do see what you're saying, Your Honor.

23:43 - But I think,

23:44 - first of all, I go back to the point that the and also include can't limit.

23:49 - It must only add to because it's that is the nature of that language.

23:53 - Well, that's I mean, just to follow up,

23:59 - Taking the point that it adds to,

24:02 - so the legislature said machinery and equipment

24:06 - and it doesn't an excavator look a whole lot more like machinery

24:09 - and equipment than materials and supplies.

24:13 - I don't think so, Your Honor.

24:15 - And and I would go to that just to the plain language,

24:18 - to the plain common usage of the words, material and supplies.

24:22 - And we've cited,

24:23 - you know, the Oxford English Dictionary and Merriam-Webster in our brief.

24:26 - And I think that that is what is the most relevant here, that,

24:32 - you know, for example,

24:34 - a, you know, the dictionary definitions talk about supplies and material

24:39 - frequently being used are the distinguishing words

24:42 - such as cleaning or writing, or in this case, building.

24:46 - And so a writing material is not just, you know, for example,

24:50 - is not just the ink that's inside the pen, it's the pen itself.

24:55 - It's the apparatus used to do the writing.

24:58 - And likewise, a building material or building supply is not just the thing

25:04 - that's used inside the building, but the apparatus used to do the building.

25:08 - You have to see everything after the and also does not fall within a first class.

25:14 - I, I would agree with that.

25:16 - Right.

25:17 - So machinery equipment does not fall in the first class.

25:21 - But I think that's like my my pie analogy.

25:23 - Just because savory pies and pastries is used in the second half

25:27 - doesn't mean that sweet pies and pastries is not included in the first half,

25:31 - even though the word pies is and you're saying so, you're saying

25:35 - machinery and equipment of your client's time is included

25:39 - in materials and supplies.

25:40 - But machinery, equipment reasonably necessary to incorporate

25:44 - into the improvement is not a material supply.

25:48 - So I think the most natural reading of that second half of the thing is,

25:53 - oh yeah, where you go to natural reading, and that's what I'm trying to understand.

25:57 - And I'm trying to follow your argument.

25:58 - You're saying

26:00 - materials and supplies in the first clause includes your client's excavator.

26:04 - Correct.

26:05 - But it does not include that.

26:06 - Another piece of machinery, equipment necessary to an incorporated

26:12 - that is not the building material or something.

26:17 - I mean,

26:19 - our argument is as a fallback, we can fit under that definition.

26:23 - But no, I think yeah, yeah, yeah, yeah, I don't know what you're, you're

26:27 - how do you respond to that that, that that for for your

26:30 - for your

26:32 - you're saying building material supplies improves your client's excavator

26:35 - but does not include any other type of machinery

26:39 - equipment reasonably necessary to and incorporated into the improvement.

26:42 - So I think that as the statute is drafted, a fixture was considered

26:46 - different from a building material or supply,

26:50 - and there was a long list of fixtures and things that were like fixtures.

26:53 - This isn't just I'm not talking

26:55 - about the fixture part, I'm talking about machinery and equipment. So,

26:58 - so machinery and equipment.

27:00 - So you're saying machinery, equipment that doesn't

27:03 - that isn't a fixture or doesn't become a fixture is a material.

27:06 - And supply.

27:07 - But if the machinery and equipment

27:09 - does become a fixture, it is not a material and supply.

27:13 - It falls within the second clause.

27:15 - So what I'm saying falls under the second clause,

27:18 - and this language comes from the 1901 statute.

27:21 - Is the fitting up or equipment

27:24 - of a real property for the purpose for which the improvement is made.

27:28 - And so that included things like chandelier in section

27:32 - two 4921 of the 1901 statute, but it also included

27:38 - machinery, gearing, boilers, engines,

27:40 - cars or other useful appliances.

27:44 - And so I think what the court was doing with

27:47 - the Assembly was doing there was saying, look,

27:49 - some of these things are going to be fixtures

27:51 - because they're permanently affixed to a structure.

27:53 - Some of these things, while they're necessary for fitting up,

27:56 - and you and the the property for the purpose for which it was intended

28:01 - are not necessarily going to be fixtures because, you know, boilers, engines, cars,

28:06 - some a car and imagine say for

28:08 - example, a a coal mine, you know, the track

28:12 - that the car runs on, the coal car runs on is permanently fixed.

28:16 - The property, the coal car is not movable.

28:20 - However, that was included in the original statute.

28:22 - But that stuff that you're talking about

28:25 - for you to prevail

28:27 - is not are not building materials and supplies.

28:31 - I think that that's a fair statement.

28:33 - Or they wanted to be sure at least that if they weren't

28:35 - considered building materials, they were nevertheless not excluded from

28:39 - what could be the subject of a clean.

28:49 - Yeah, our our position is that

28:52 - it it simply renders the Lean Law absurd that an ex if an excavator,

28:58 - it was actually used to excavate the improvement is not considered

29:02 - an excavation material or supply, then it's hard to fathom

29:06 - what would be considered.

29:07 - It would be more absurd to say that an excavator is not machinery and equipment,

29:11 - wouldn't it? And oh, we're not.

29:13 - We're certainly not saying that, of course.

29:15 - Is it is it the real ground where this battle is joined?

29:19 - Is whether it's incorporated into the improvement?

29:22 - Because I thought part of your brief is arguing that it's incorporated

29:26 - into the improvement even without being physically left there.

29:30 - We do think that that the language incorporated into the improvement

29:34 - is certainly broad enough to include things

29:36 - that are not permanently, physically attached.

29:39 - And that is what the trial court held.

29:41 - The trial court held that it was incorporated into the improvement

29:45 - by means of the fact that it was integrally necessary for the construction

29:50 - of the foundation, and without that, the building couldn't have been built.

29:53 - You can't take the foundation out.

29:55 - You can't take the grading and excavation out.

29:57 - It's a permanent part of the improvement,

29:59 - and therefore it's been incorporated into.

30:01 - And that is what the trial court held.

30:03 - So so Council, you're

30:05 - you're reading this as to distinguish between,

30:10 - things that are incorporated into the building

30:13 - and things that are not incorporated into the building.

30:17 - So as, as the statute reads, the first phrase

30:20 - would apply to those things that are not incorporated into the building.

30:25 - The second movement into the improvement and the second

30:28 - the second phrase, says and it also includes

30:33 - equipment, and machinery that become part of the improvement.

30:40 - So, no, Your Honor, to clarify, we're saying that

30:43 - the first part includes building materials and supplies of all kinds.

30:47 - So that would be the kinds that are incorporated into it

30:49 - that are made a physical, permanent part

30:51 - and the kinds that are not made a physical permanent part.

30:54 - And that includes things like, you know, the court held and excavating

30:58 - temporary risers and spillways, things that are temporarily

31:03 - used in the construction

31:04 - that are reasonably necessary and actually used for the construction,

31:07 - but do not become a permanent part of the property.

31:10 - But why isn't that included in the first part?

31:13 - I don't I don't understand why the distinction that you're making there,

31:17 - you just described is, are, materials and supplies

31:21 - that are not incorporated into the building.

31:24 - You would want to fall into that category, would you not?

31:28 - Yes. Your Honor,

31:30 - I'm I'm not sure I understand the question.

31:32 - So we're saying that the first part of the definition includes things that both are

31:35 - and are not made a permanent physical part of the structure.

31:39 - Why would that be then?

31:40 - Then what's the point of the second part?

31:42 - Why do you have to distinguish that which is not made a part of the building?

31:47 - If it is included in the first class?

31:50 - I don't think that the second part

31:53 - distinguishes things that are not made a part of the building.

31:55 - I think that it

31:57 - it adds to building materials and supplies of all kind fixtures and things

32:01 - in the nature of fixtures that are used to fit up and equipped

32:06 - the the building for the purpose for which it was constructed.

32:13 - All right.

32:13 - I think we understand

32:15 - I think we understand your argument after I asked Counsel Worley question.

32:19 - Europe, you are opposing counsel.

32:27 - Says that, you had other remedies.

32:29 - You could have sued the Bronski Brothers, who are the real villains?

32:33 - You could have sued them

32:36 - in contract, in conversion

32:39 - or under the, contractor and Subcontractor Payment Act.

32:44 - But you didn't do those things, so.

32:46 - Or you could have, I guess, insured against these risks.

32:49 - So how would you respond to those arguments that they make?

32:53 - So, in fact, we did file that suit.

32:56 - We have a suit that's currently stayed in the, Allegheny County.

33:01 - That is a breach of contract action against the Bronte brothers,

33:06 - quantum Pruitt and unjust enrichment

33:08 - against the property owner and against blue Rock.

33:12 - However, as blue Rock is well aware, the Bronski Brothers is liquidated.

33:16 - They there's no possible recovery against them.

33:19 - And that is, in fact, one of the things so so we have, you

33:23 - know, we've moved for the full judgment, but it's it's not worth anything.

33:26 - We've not gotten into full judgment yet.

33:28 - They never appeared in court. They didn't show up.

33:30 - But,

33:35 - the mechanics clean law

33:37 - is meant to avoid having to go after a property owner in quanta marrow it

33:42 - for the benefit received from the prepayment investment of materials

33:47 - and labor that a contractor or a subcontractor puts into

33:51 - the improvement of a property that's exactly what Cleveland Brothers did here.

33:55 - Ten months of use of the machines, 600 hours of wear and tear on a machine,

33:59 - that that benefited their property and the Cleveland brothers

34:03 - has never been paid for.

34:05 - And the statute is written specifically to protect,

34:09 - that class of,

34:11 - of contractors and subcontractors.

34:14 - And if Cleveland Brothers meets the definition of subcontractors

34:18 - as a superior court acknowledged that we did, then it makes no sense.

34:22 - It's not a norm.

34:22 - It's not a plain language reading of the statute to say

34:25 - that we have created a remedy for you.

34:27 - You're within the special class

34:29 - of of parties that we believe is entitled to this remedy.

34:33 - And yet

34:35 - you're precluded from getting any kind of remedy for the only thing

34:38 - that you do an excavator for excavation, for the improvement of a property.

34:43 - It's just, so so we did do that, Your Honor.

34:47 - But it's it undermines the whole purpose of the statute.

34:53 - All right. Thank you, Attorney Schmitt.

34:54 - Let's hear from your opposing counsel, Mr.

34:57 - Klein.

35:01 - Madam Chief Justice justices, may it please the court.

35:04 - My name is Andrew Klein, and I represent the APA League.

35:07 - Blue Rock construction, Inc.

35:09 - With me today is David Scotti, who represents

35:12 - the owner of the property, Arcadia North Land LLC.

35:16 - Welcome.

35:18 - In this appeal, the court asks a single question whether or not the Lean.

35:22 - Law authorizes a lien for the charges for the use of construction equipment

35:28 - that was reasonably necessary and actually used for the improvement.

35:33 - In addressing that question.

35:34 - Today, I'll demonstrate that every aspect of the Lean Law

35:38 - consistently points to only one answer to that question no.

35:42 - And I'll show that by discussing the definition of materials, the

35:46 - legislative history of that definition, this court's construction,

35:51 - the way this court construed that term, the structure of the lean law,

35:55 - the manner in which lean laws, claims or enforce or judgments are enforced,

35:59 - and also the current pending amendment that the legislature is considering.

36:05 - How can you do all that before dinner time?

36:08 - I think

36:09 - yeah, I'm I'm pretty confident I can do it.

36:12 - The threshold question really is or one of the two threshold questions is

36:17 - whether a commercial excavator constitutes material subject to a tax lien claim.

36:23 - And the place to start, of course, is the definition of materials.

36:26 - Happily, the legislature defined that term and it establishes exactly

36:31 - two categories of materials building materials and supplies of all kinds

36:36 - and fixtures, machinery and equipment that are reasonably necessary

36:41 - to and incorporated into the building with respect to the first one,

36:45 - into the improvement.

36:46 - Into the improvement. I'm sorry. Thank you.

36:49 - Thank you, Your Honor.

36:50 - With respect to the former building materials and supplies of all kinds,

36:53 - the Statutory Construction Act, as it often is, is very helpful.

36:58 - It says two things that are particularly important

37:00 - that we have to construe terms by their common usage.

37:04 - And when general words are preceded by particular words,

37:09 - you have to restrict the meaning by that particular word.

37:13 - And the preceding particular word.

37:14 - Here is building.

37:16 - So in that first, part of the definition, we have to decide

37:20 - what is the common usage of building materials and building supplies.

37:26 - Building materials are things like lumber,

37:29 - brick, steel, drywall, and glass.

37:32 - Building supplies are things like nails, screws, rivets, adhesive.

37:38 - And the commonality and the common usage of those terms, building

37:42 - materials and building supplies are things that actually become part

37:46 - of the finished improvement that are embedded in the improvement.

37:51 - Hammers, screwdrivers, shovels and commercial

37:54 - excavators are not building materials or building supplies.

37:58 - An excavator is equipment.

38:01 - Nonetheless, Cleveland Brothers argues that

38:04 - that a commercial excavator is a building supply.

38:07 - And in preparing for today's argument, I was thinking how is that

38:10 - as a term used in other contexts?

38:13 - Medical supplies are things like Band-Aids,

38:16 - syringes, surgical masks and gloves.

38:20 - A $20 million MRI machine is not a medical supply in its common usage.

38:25 - It's medical equipment, office supplies

38:28 - are paper, pens, paperclips and staples.

38:32 - $100,000, commercial printing machine is not an office supply.

38:37 - It's office equipment.

38:39 - And a commercial excavator is not a building supply.

38:41 - It's construction equipment.

38:43 - And I think to underscore that point, the legislature to, Justice Watch point

38:49 - added the second half of the deficit to the second half of the definition

38:53 - and said and also includes fixtures, machinery and equipment

38:58 - reasonably necessary to and incorporated into the improvement.

39:02 - In so doing, the legislature made clear that there was only one type of equipment

39:06 - that you could lean for,

39:07 - and that's equipment that actually finds its way into the building.

39:11 - Examples that the Superior Court and courts have found are

39:14 - commercial Hvac, units that are attached to buildings.

39:20 - That make

39:22 - you, as a matter of course, would exclude

39:25 - for cranes, excavators, backhoes,

39:29 - scaffolding, lifts, bulldozers,

39:33 - anything that a contractor typically relies on

39:37 - in the construction of small and even large construction projects.

39:43 - And how much sense does that really make?

39:47 - Well, I think it makes sense in, in many different ways.

39:50 - And to answer your question directly, yes, I think it does.

39:54 - The mechanics lean law does exclude those sorts of things.

39:57 - The Lean Law is very it's not intended to make somebody,

40:01 - that does any work on a construction project hold the lean laws.

40:04 - This court said it's an extraordinary remedy.

40:07 - Well, isn't the point of the mechanics lean law to not allow

40:10 - owners of properties to profit on the backside of subcontractors

40:17 - who sweated and toiled to build those properties?

40:20 - I would say that's certainly one of the one of the the reasons for the mechanics.

40:25 - Well, but it's not always the case that owners profit

40:29 - from the sweat of those parties in cases like this one, for example.

40:33 - It's undisputed that both blue Rock and Arcadia, paid in

40:37 - full, under the brothers contract.

40:40 - But what the Lean Law does is it says

40:42 - we're not we're not going to make everyone whole.

40:45 - We are going to we're going to compensate them for the materials and the labor

40:50 - that they used in constructing the, constructing the improvement.

40:54 - It does not include things like the equipment and the shovels,

40:58 - that they carry.

40:59 - And I think that the legislative history of,

41:02 - of the statute and the definition of materials very helpful.

41:05 - We don't have to guess at the legislature's intent.

41:08 - It told us what its intent was.

41:10 - It said, in its official comment,

41:13 - the act of 1901 contained no express definition of materials.

41:17 - This definition, the one that we're discussing today, follows existing law

41:22 - which used the phrase reasonably necessary for and actually used there in.

41:27 - Well, I guess my my problem with your, I'll say parsing of the definition

41:32 - of materials is that, when I do statutory construction, when I read a phrase

41:38 - that says of all kinds, I read that as an a very inclusive phrase.

41:43 - I'm also read and also includes

41:47 - as more of an inclusive phrase as opposed to a limiting phrase.

41:52 - And so that's kind of where I'm hung up with, you know, I would say under either

41:56 - half of the definition, in order to be liable,

41:59 - it has to be incorporated into the improvement physically.

42:02 - The Statutory Construction Act also says that when a court of last

42:07 - resort, this court, has construed the language used in a statute,

42:12 - the General Assembly and subsequent statutes on the same subject

42:16 - matter intends the same construction to be placed on the language.

42:20 - And how has this court construed the definition

42:23 - of the word materials in the Lean Law context?

42:26 - And that was in the Hoffman case, and that was under

42:29 - the 1901 act that the comment and talks about.

42:32 - So can I interrupt? Not quite sure.

42:34 - When we're excavators invented.

42:37 - I have no idea.

42:39 - You're quoting language from 1901, which I understand

42:43 - because it benefits your argument.

42:44 - But the fact of the matter is excavators, cranes, these types of equipments

42:48 - that we're dealing with now weren't even around in 1901 at the time.

42:51 - These definitions

42:52 - and I keep coming back to what Justice Mundy just asked you about,

42:56 - which was in the good old days, or the bad old days

42:59 - when you were trying to level a piece of property.

43:01 - In other words,

43:02 - you would have men out there with pickaxes, shovels doing the work.

43:06 - Under this particular issue, that particular work would have been legal.

43:09 - Would it not?

43:11 - The the labor of doing the work is learn able,

43:14 - but not the not the cost of the shovels that those people were carrying.

43:17 - We're talking about the labor itself.

43:19 - Yeah.

43:20 - The labor is winnable no matter what that labor is.

43:22 - If it's involved in the improvement, you can lean for it,

43:25 - but not for the tools.

43:26 - And that's what the wall, a commercial excavator might not have been

43:29 - invented at the time of, of the Hoffman case, shovels

43:34 - and other implements and appliances used for construction work.

43:39 - And this court specifically said

43:41 - that in order to constitute materials subject to a clean claim,

43:44 - the material must become part of the physical, permanent structure.

43:48 - And, equally importantly, the Hoffman, Hoffman held that lumber

43:53 - for temporary scaffolding.

43:54 - You keep coming back to that definition.

43:56 - But but but the fact that it matters when you're talking about excavating,

43:58 - you're talking about somebody who an excavating company.

44:01 - So your contractors actually subcontracted with an excavation company

44:05 - to provide manpower and somebody to operate the excavator

44:08 - to actually do this particular land, clearing itself,

44:12 - to create the pad, to do the compression of the pad.

44:14 - Everything else is then

44:16 - literally and figuratively built upon the work of the excavator.

44:20 - So under your definition, if I hire an excavator, an excavating company,

44:24 - to rent their particular manpower and their excavator, why isn't it covered?

44:29 - Well, what's covered would be the labor.

44:31 - How do we bifurcate that between.

44:33 - How do you know it's not the labor you're hiring

44:35 - as opposed to the person that actually work the excavator?

44:37 - Well, you couldn't you couldn't you couldn't charge for or recover

44:41 - under a clean claim for the cost of the of the excavator, only for the labor.

44:46 - I mean, that's the way that the, the lean law structured, link lends.

44:50 - And if you think about the way that lean claims are enforced,

44:53 - it makes it helps make sense of all of this.

44:56 - Because viewing the statute as a whole, lean claims are not enforced.

45:01 - When a judgment on laying claim against as a monetary judgment against the owner,

45:06 - they're they're enforced against the the improvement itself

45:10 - so that if the owner doesn't voluntarily pay,

45:13 - the only way to enforce that is by a sheriff's sale.

45:15 - And if you think about that,

45:17 - it makes sense that only things that are physically embedded

45:21 - in the improvement itself, the lumber, the nails, the bricks,

45:25 - an Hvac unit, they they make up the value of the property.

45:30 - That's my point.

45:32 - Where do you draw the line?

45:33 - I we draw the line at where the legislature drew the line.

45:36 - And this court's definition of materials, anything.

45:40 - That's this any physical item that is incorporated into the improvement

45:44 - is Lina Ball. What is it?

45:46 - What is incorporated that improvement?

45:47 - I mean, because when you're talking about excavating,

45:49 - you're you're necessarily talking about the structure

45:53 - is actually built on the work of the excavator.

45:56 - What about infrastructure?

45:57 - In other words, you've got a structure itself.

45:59 - It's built on top of a pad that the excavator actually built.

46:02 - What about the the plumbing, the electric, all of the other lines

46:05 - that go from the structure to the actual public utilities

46:08 - is that included all all of those things are included

46:10 - because they would they fall under the definition of materials

46:13 - that they're a material, the conduit, the plumbing,

46:16 - the wires are not in the structure is my point.

46:19 - But it's part they're part of the improvement.

46:21 - I mean, a physical part of the impact sites, not part of the improvement.

46:25 - The pad site is not part of the improvement.

46:28 - The the pad site is part of the improvement,

46:32 - but the only learn able

46:33 - part of the improvement are things that are physically attached to it.

46:36 - Like this.

46:37 - Sure that upon the Hoffman case,

46:41 - I'm basing

46:42 - in part on the Hoffman case of 1922.

46:45 - Excuse me. I'm sorry, are you basing?

46:48 - I'm also basing it on the structure of the Lean Law as a whole.

46:52 - In every place where the Lean Law talks about what you can lean for,

46:58 - it uses some form of the preposition in and not for,

47:02 - for example, in the definition of subcontractor,

47:05 - the legislature describes an entity that hauls machinery,

47:10 - fixtures, machinery or equipment reasonably necessary

47:14 - and use there in and, I counsel

47:18 - mentioned that there's no dispute that Cleveland Brothers is a subcontractor.

47:21 - We dispute that Cleveland Brothers is a subcontractor

47:25 - because Cleveland Brothers did not haul something

47:27 - that was ultimately incorporated into the improvement,

47:31 - in identifying the right to win, the legislature

47:34 - granted that right for labor and materials furnished in the construction, not for,

47:40 - even in the statutory presumption regarding the use of materials.

47:44 - The legislature presumed that if they were placed in or near

47:48 - the property, it presumed that they were ultimately

47:51 - used there in the prepositions in, into in, they're in

47:56 - have a consistent meaning under the lean law.

47:58 - It means that it's physically inside the improvement.

48:02 - Not so there's there's so I mean, I.

48:07 - I understand where the question has come from in the sense that,

48:10 - you know, it's there's a distinction here between buildings and improvements.

48:13 - A building is an improvement, but not all improvements are buildings or structures.

48:17 - So the thing that I think

48:20 - makes this case a little bit difficult is,

48:24 - an improvement can be a clearing, it can be a leveling, it can be.

48:28 - And that adds value to a piece of dirt,

48:31 - that is not build able, creating a build able surface

48:35 - purely by the use of an excavator adds value to property

48:39 - and and y and I in response, I think you're going to give

48:44 - is because that's what the General Assembly did.

48:45 - But I guess the question is why?

48:47 - If an excavator is the implement to improve the value of the property

48:52 - for the developer, why is the cost of that excavator not livable?

48:58 - Like I said, three answers to that question.

49:00 - The first answer is that the labor would be liable.

49:05 - It's just the why isn't the equipment, it's that the legislature drew the

49:09 - the General Assembly drew the line somewhere.

49:11 - I mean, it said that you you can't lean for everything,

49:13 - or they would have said and in the lean Law,

49:16 - you can, you can file a lean for the cost of construction.

49:19 - And in fact, there is a definition of for the cost of construction in the Lean law.

49:25 - That is extraordinarily broad, that it all costs

49:28 - and expenses pertaining to the erection, construction, alterations and repairs.

49:32 - But that's not how the legislature, defined what you could lean for.

49:37 - That was, use subsequently in a priority thing regarding,

49:42 - regarding the priority with other types of, of judgments.

49:46 - So the legislature knew how to be more expansive than,

49:51 - and could have been more expansive.

49:54 - So that's the first reason, because the legislature, legislature

49:57 - sets up also, entities

50:01 - like Cleveland Brothers are not without remedies.

50:04 - Pre contractual remedies or, an entity like Cleveland Brothers

50:09 - could certainly have required prepayment, for the excavating equipment

50:13 - like commercial movers do, like criminal defense lawyers do.

50:18 - They have safeguards that they could put in place.

50:20 - They could request that a payment bond be be,

50:23 - involved in the project that would ensure that they would receive payment.

50:27 - And the third reason, really is,

50:31 - that this court has said specifically that

50:34 - that you can't lean for, like, temporary scaffolding and structures

50:38 - and things that are used in order to, to create the value in the property.

50:43 - That was one of the pieces in the Hoffman case.

50:46 - So if there was a whole bunch of lumber and other materials that were,

50:50 - and I'm using materials in, in quotes, other sorts of materials

50:55 - that were brought to the site in order to help, develop the property.

50:59 - That wouldn't be liable under Hoffman.

51:02 - It wouldn't be under the mechanic's lean law because those materials

51:06 - were taken away and not ultimately incorporated into the final improvement.

51:12 - What about the erosion and sediment control?

51:14 - Things that are that are isn't there?

51:17 - Was that Hoffman, or is there another case that talks about those being livable?

51:21 - I don't think I don't think there's any case

51:24 - that specifically talks about what materials may be livable.

51:28 - In a excavation case, there's the b n case

51:32 - in which the superior court it involved, it involved excavating,

51:36 - but it never reached the decision as to what, what materials,

51:40 - could be learn able and what constitutes materials that could be learn able.

51:44 - In that case, in that case, the trial court ruled that

51:49 - because there was ultimately no building that was constructed,

51:53 - that, that that involved like erosion and sediment

51:56 - control measures and things like that as well.

51:58 - But you're you're under your theory of the case, those erosion and sediment

52:03 - control measures that are temporary, would not be liable.

52:08 - Exactly.

52:09 - That is that's it.

52:10 - And I think to Chief Justice Todd's point,

52:14 - the General Assembly is currently

52:15 - considering an amendment to the definition of materials.

52:18 - And I think that's really helpful in two ways.

52:21 - The amended proposed amended definition is

52:24 - building materials and supplies of all kinds

52:27 - currently in the statute and also includes fixtures, machinery and equipment.

52:32 - And here's the new language, including rented equipment,

52:35 - reasonably necessary for the construction of

52:38 - or incorporated into the improvement.

52:41 - So the general is versus contractor makes a big difference.

52:45 - So the General Assembly recognized that the way the statutes currently written,

52:50 - it doesn't mean it's an and and it's not an or

52:54 - can I ask you a question on first following up council?

52:58 - The General Assembly did not

53:02 - did not right physically incorporate into the road,

53:05 - incorporate into

53:08 - and so the raises the question

53:12 - for me of whether it can be read to me used in

53:17 - like you have you mobilize all this equipment,

53:19 - you got an excavator, you got this piece, you got that,

53:22 - and there's this big job to build, maybe a, I don't know, suburban

53:26 - shopping center, you know, with the terrorist walls and everything.

53:32 - And,

53:34 - is it fair to say that all of that equipment is incorporated

53:37 - into the improvements such that it would be listenable,

53:41 - not physically incorporated, but it's used in.

53:45 - Think of it this way.

53:46 - If, if I'm right, if I'm writing an opinion

53:50 - and you submit a memo that I find

53:52 - really helpful, I incorporate it into my opinion.

53:56 - But I didn't physically cram it in there, but I incorporate it into my opinion.

54:00 - Why shouldn't we read the statute?

54:02 - That, and I'd say that the Statutory Construction Act says that when this court

54:06 - has construed a term in a prior statute, the General Assembly,

54:11 - intends that the same construction is going to be used.

54:14 - And in fact, the General Assembly specifically said

54:17 - the act of of 1901 contained no express definition of materials.

54:22 - This definition follows existing law and the existing law.

54:26 - Was this court's decision in Hoffman, where the court.

54:29 - This court ruled that in order to be leasable, a material must become

54:33 - part of the permanent structure, that it's no more livable to have to,

54:39 - lean for temporary scaffolding, that it is the tools and appliances.

54:44 - But the equipment that a contractor has used

54:47 - uses to actually construct the improvement.

54:50 - That's the point of the Lean law,

54:52 - physical incorporation, and not at everything that's helpful

54:56 - because to your point, the Lean Law specifically says

54:59 - you can't lean for engineers and architects services.

55:02 - That certainly an architects and engineers

55:05 - grading and design work that certainly, helps

55:09 - obviously instruct in and develop the improvement.

55:13 - But you can't lean for that.

55:15 - It's only the labor, the the skill and superintendence

55:19 - and the physical materials that find their way into the structure

55:22 - that can be lean for

55:23 - and the legislature is addressing is attempting to address that.

55:26 - Now, I don't.

55:27 - And the machinery and equipment that that would be incorporated into a structure.

55:31 - You mentioned Hvac system. Yes.

55:34 - Anything else you can think? Yeah.

55:36 - Commercial refrigeration unit in a supermarket.

55:39 - That would become a permanent part of the structure.

55:43 - Those are the the two clearest examples that I can think of.

55:46 - Generator.

55:48 - Commercial

55:48 - generator that would that would do it also. Yes.

55:52 - And that's why they added that second half to the, to the definition,

55:56 - to to make clear that the only equipment that could be lean

55:59 - for is the stuff that ultimately becomes attached to, to the property.

56:04 - And council, if I make sure I'm

56:07 - wired defrayed phrase of all kinds,

56:12 - it's just so that it's not.

56:13 - It's so that it's not limited in any type of actual building materials.

56:18 - Why would it be limited without that?

56:20 - It says built.

56:20 - It means building materials and supplies.

56:24 - Why would that be limited?

56:27 - If the phrase of all kinds is not added to the end of it?

56:31 - It's just it's just to say that the variety of building materials

56:35 - that all building materials wood, brick, steel, glass, drywall,

56:40 - that would be a building material or supply.

56:44 - Yes. And that's to say, without saying of all kinds, testing

56:47 - of all kinds means that it's expanding and otherwise traditional meaning.

56:52 - Yeah, it's saying that in anything that qualifies as a building material

56:56 - or supply is covered by the by the Lean Law.

57:00 - And that's what it would say, even if it didn't add the phrase of all kinds.

57:05 - There's no words of limitation.

57:07 - That's true.

57:08 - That's true.

57:09 - I think they were just trying to make sense of all kinds mean,

57:13 - broadening the concept

57:17 - of building, which I think I

57:18 - think it's just two words to make clear that they are they're not intending

57:22 - to be limited to any particular category of building materials or supplies.

57:27 - I already said so it's kind of belt and suspenders.

57:30 - Yes, yes.

57:32 - And I'd say that in closing, if there's any doubt in any of your minds

57:37 - regarding whether or not, an excavator constitutes

57:41 - a material, I'll refer back to this court's decision and terrafirma

57:45 - and really, every decision that this court's ever

57:48 - made in a mechanics lane test, it said that,

57:51 - the lean law is a creature in derogation of the common law.

57:55 - And any questions of interpretation shall be,

58:00 - resolved in favor of a strict narrow construction.

58:04 - And in this case, the word narrow is what I want to highlight.

58:07 - The Lean Law isn't isn't designed to create

58:11 - and compensate everyone for every dollar that spent on the project.

58:16 - Ask you a question on short.

58:18 - Also, you mentioned, prepayment bond.

58:21 - How often in your experience is that done?

58:24 - It depends.

58:25 - I say, in in larger projects it's not uncommon.

58:28 - So like get a job like this, would it in your experience, would it be customary

58:34 - for, firm like Cleveland Brothers to get other kind of security in advance?

58:39 - They can certainly.

58:40 - They could certainly request that that that security be provided

58:43 - in, in, in in fairness, a lot of times owners

58:47 - and general contractors don't want to incur the expense of a payment bond.

58:51 - So it doesn't happen in every case.

58:53 - It's very hard to pin down when it does happen.

58:55 - But I have always thought it's a very good idea.

58:59 - If you're working on a project to work on one with a payment bond,

59:02 - because then you know that regardless of what happens on the project,

59:06 - you're going to be you're going to be compensated.

59:08 - I'd rather work on that project. Yes.

59:11 - All right.

59:12 - We understand your argument. Thank you both very much.

59:14 - Thank you.

59:16 - The next

59:17 - case to be argued is Commonwealth against Adams.

59:20 - A criminal case.

59:22 - This is an appeal by allowance from an order.

59:24 - An opinion of the Superior Court.

59:27 - Mr. Adams was convicted of more than 60 counts of indecent assault on a minor,

59:32 - along with corruption of minors and endangering the welfare of a child.

59:37 - Consistent with Pennsylvania law expert testimony from persons

59:41 - who have experience or education in criminal justice,

59:45 - behavioral sciences or victim services, issues related to

59:49 - sexual violence is permitted in cases involving sexual violence.

59:54 - When that testimony will assist the jury in

59:57 - 640 understanding the dynamics of such violence, a victim's responses

01:00 - 05.535 to such violence, and the impact of sexual violence

01:00 - 09.205 on victims during and after being assaulted,

01:00 - 14.153 such as such, expert testimony might include an explanation

01:00 - 17.580 about why a victim of such violence might delay in reporting it.

01:00 - 22.051 This type of testimony was offered in this case to a school counselor.

01:00 - 23.697 Counsel for Mr.

01:00 - 28.057 Adams complained that the prosecution never provided notice to the defense

01:00 - 31.127 that it intended to use this type of expert testimony

01:00 - 32.739 separate

01:00 - 36.399 separate from the statute allowing the use of this expert testimony.

01:00 - 40.679 The rules of criminal procedure mandate that the Commonwealth,

01:00 - 44.440 the prosecution, provide notice of expert witnesses,

01:00 - 48.978 and that notice generally is made before the start of a trial.

01:00 - 52.224 In this case, the prosecution did not provide

01:00 - 55.251 the required notice until towards the end of the trial.

01:00 - 58.530 After the trial victim had already testified.

01:00 - 01.500 The defense objected to the testimony, but the trial judge

01:01 - 04.527 overruled the objection and allowed the expert to testify.

01:01 - 07.773 The jury convicted the defendant, and he was sentenced

01:01 - 10.800 to a term of 8 to 16 years in state prison.

01:01 - 13.612 Mr. Adams sought relief from the trial judge

01:01 - 16.682 who initially granted it, finding that the lack of notice

01:01 - 20.252 of the expert until towards the end of the trial prejudiced Mr.

01:01 - 22.221 Adams case before the jury.

01:01 - 23.355 However,

01:01 - 27.760 the judge waited too long to issue his ruling and was not able to grant Mr.

01:01 - 30.787 Adams any relief on appeal.

01:01 - 32.231 The Supreme Court affirmed Mr.

01:01 - 36.092 Adams convictions and sentence regarding the expert testimony.

01:01 - 37.770 The Superior Court,

01:01 - 41.998 while agreeing that the discovery rule mandating notice had been violated,

01:01 - 46.512 decided differently from the trial court that Mr.

01:01 - 49.839 Adams did not argue that he was prejudiced by the late disclosure.

01:01 - 54.053 The absence of prejudice precluded precluded relief to Mr.

01:01 - 57.080 Adams. In the Superior Court's view.

01:01 - 00.793 In reaching their respective decisions, both the trial court

01:02 - 04.129 and the Supreme Superior Court relied on a case decided

01:02 - 08.357 by the Supreme Court in 2023 that posed a similar issue.

01:02 - 11.670 The name of that case was Commonwealth against Dunn.

01:02 - 15.865 In that case, the Supreme Court decided that the discovery rule mandated

01:02 - 20.779 the pretrial disclosure of a sexual abuse expert, but the court

01:02 - 24.707 was evenly divided on the appropriate remedy for the rule violation.

01:02 - 27.886 The Supreme Court exercised this discretion to hear

01:02 - 31.457 this case limited to only one of the issues raised by Mr.

01:02 - 36.829 Adams, namely, that the trial judge error in overruling the defense objections

01:02 - 40.757 to the qualification and subsequent testimony of the expert witness.

01:02 - 44.737 Perhaps it wants to use this case to answer the question left

01:02 - 46.905 open in the Dunn case.

01:02 - 50.008 In addition to the argument on the issue of the qualification

01:02 - 53.469 and testimony of the expert, there will also be an argument

01:02 - 54.581 that the issue for

01:02 - 58.441 which review was granted is not properly before the Supreme Court,

01:02 - 01.854 because this is not the issue that was presented before the trial.

01:03 - 03.589 And Superior Court.

01:03 - 06.616 The prosecution devotes most much of its brief

01:03 - 09.428 to this concept, known as waiver.

01:03 - 12.698 It provides that if an issue has not been properly raised in the lower

01:03 - 15.892 courts, the appellate court is powerless to address it.

01:03 - 20.530 Let's watch and listen to the arguments in Commonwealth against Adams.

01:03 - 23.375 Oh, sure.

01:03 - 25.611 Good morning.

01:03 - 25.879 Morning.

01:03 - 29.815 This appeal by allowance, we are asked to determine whether the trial court

01:03 - 34.644 aired and permitting the Commonwealth to present expert testimony,

01:03 - 38.056 even though it did not notify the defense of its intent

01:03 - 41.350 to call the expert witness until mid trial.

01:03 - 45.221 In conjunction with this question, we must consider

01:03 - 50.169 whether appellant has demonstrated that he suffered prejudice as a result

01:03 - 55.407 of the Commonwealth's actions and if so, what the appropriate remedy should be.

01:03 - 57.709 Please proceed.

01:03 - 00.736 Madam Chief Justice Justices, good morning.

01:04 - 05.651 It pleased the court not to welcome Chief Deputy Public Defender for Lycoming.

01:04 - 08.778 County on behalf of the appellant, Charles Hammonds.

01:04 - 12.624 At the heart of this appeal is Mr.

01:04 - 15.618 Adams is right to have a fair trial

01:04 - 18.397 by the court, allowing the Commonwealth

01:04 - 21.424 to qualify the child's guidance counselor

01:04 - 26.229 as an expert under section 5920 without any advance notice.

01:04 - 28.431 He was denied that right.

01:04 - 31.710 As Justice Mundy noted

01:04 - 34.737 in her opinion in support of affirm, it's in Dunn.

01:04 - 38.784 Trial by ambush is contrary to the spirit

01:04 - 41.811 and letter of the rules of discovery.

01:04 - 44.981 By allowing the testimony despite the flagrant

01:04 - 48.751 discovery violation, the trial court committed a significant error.

01:04 - 53.489 Quarantine a new trial, a conclusion it came to on its own.

01:04 - 55.434 In its opinion on Mr.

01:04 - 58.427 Adams's post sentence motions.

01:05 - 01.673 All six justices

01:05 - 05.001 participating in the Dunn opinion found

01:05 - 09.581 a discovery violation under 573, when the Commonwealth

01:05 - 13.609 waited until the night before trial to inform counsel

01:05 - 17.313 of their intent to call an expert under 5920,

01:05 - 21.751 providing at that time a CV and a bullet pointed

01:05 - 25.497 bullet pointed email covering generally

01:05 - 28.524 what the testimony would include.

01:05 - 30.903 There was none of that here.

01:05 - 34.830 There was no report, no CV, no notice.

01:05 - 39.769 It was done in trial after jeopardy had attached the Commonwealth claim.

01:05 - 42.939 They had provided their report to prior counsel.

01:05 - 46.518 Yes. So that was a claim made during post motions that.

01:05 - 47.186 So Mr.

01:05 - 51.523 Adams initially had private counsel at the beginning and the Commonwealth

01:05 - 55.718 had filed a motion for a testimony by alternative means.

01:05 - 59.956 As part of that, the Commonwealth said that they shared

01:06 - 04.136 at least a brief statement by this guidance counselor

01:06 - 05.203 as to why it would cause

01:06 - 09.141 a substantial emotional distress for the child to testify in front of Mr.

01:06 - 12.168 Adams, as well as a CV,

01:06 - 16.949 that was brought up in the post set into motion and in the post sentence

01:06 - 21.219 opinion, the motion on the post, the opinion on the full sentence motions,

01:06 - 22.254 the judge mentioned

01:06 - 25.524 that it asked the Commonwealth to provide that has never been provided.

01:06 - 30.028 In any event, it was never provided to the trial counsel.

01:06 - 32.931 Once he took the case. What was never provided?

01:06 - 34.967 I'm so sorry. What was never provided?

01:06 - 37.169 You said it was a pretrial motion,

01:06 - 40.706 a post sentence about, oh, for when they would have received

01:06 - 44.276 any information on this guidance counselor you just said the Commonwealth said

01:06 - 48.914 that they filed a motion a pretrial motion to allow alternative.

01:06 - 49.938 What was it again?

01:06 - 53.719 Yes, they had filed that prior to the preliminary hearing.

01:06 - 57.823 What did they file so that that would have been well before the preliminary?

01:06 - 59.124 No, you're not missing.

01:06 - 01.893 What specifically what was the motion?

01:07 - 04.863 Is a motion to allow the child to testify via video.

01:07 - 09.025 And in that motion, they referenced that the guidance counselor would be testifying

01:07 - 11.104 in that motion.

01:07 - 15.474 They mentioned in that motion, they simply stated

01:07 - 18.477 the language of the statute that it would cause the child substantial

01:07 - 19.711 emotional distress to text.

01:07 - 23.081 I understand that, but as part of that, they discussed,

01:07 - 26.108 they claim they discovered two original counsel.

01:07 - 30.279 A brief statement by this guidance counselor, as well as theirs,

01:07 - 33.315 is that anywhere in the motion is what I'm trying to get at.

01:07 - 36.094 Not, to my knowledge, was the name of this counselor

01:07 - 39.555 anywhere in the pretrial motion, was there any kind of indication?

01:07 - 42.667 In other words, if I take over the case from you? Yes.

01:07 - 44.269 And I'm taking a look at the docket entries.

01:07 - 45.404 The first thing I'm going to look at is

01:07 - 47.639 all the motions that were filed beforehand, right? Correct.

01:07 - 50.666 And myself, to find out what the status of the cases

01:07 - 54.279 anywhere in any of those pretrial motions, did it mention this guidance counselor

01:07 - 56.081 that we're going to call this guidance counselor?

01:07 - 57.582 Not to my knowledge.

01:07 - 00.485 She wasn't listed as a witness for trial.

01:08 - 03.512 We did not have the transcript from the jury selection.

01:08 - 06.958 So there was no and there was no other emails or anything

01:08 - 07.827 along those lines

01:08 - 10.929 to indicate that this guidance counselor was going to be a witness.

01:08 - 11.164 In fact,

01:08 - 13.498 the guidance counselor herself does not appear

01:08 - 16.892 in the entirety of the police report, was not in the witness list.

01:08 - 21.363 Her name was not in the witness list, not as I said.

01:08 - 24.142 There was no transcript of the jury selection.

01:08 - 27.479 So I don't know if the Commonwealth mentioned her in the jury selection role.

01:08 - 31.583 Was there a list of potential witnesses provided to the trial judge

01:08 - 33.018 prior to trial?

01:08 - 37.146 No formal witness list, provided that I've seen in the record,

01:08 - 39.925 I. You didn't try the case.

01:08 - 41.793 I did not

01:08 - 44.196 counsel can I can I go to the objection now

01:08 - 48.090 because I'm looking at the objection that was raised at trial. Yes.

01:08 - 51.627 The objection to trial was a strenuous objection.

01:08 - 55.197 From the fact that they did not receive an expert report,

01:08 - 59.435 I did not find an objection to a lack of notice.

01:08 - 00.546 I see an objection

01:09 - 03.572 to the lack of an expert report which the trial judge addressed,

01:09 - 07.119 and, allowed it and allowed

01:09 - 10.146 the testimony in the absence of an expert report.

01:09 - 12.424 Where was the objection to?

01:09 - 15.293 We had no notice of this witness. Yes, just as props.

01:09 - 19.564 And I think when we look and we can I can the section sections pulled

01:09 - 23.492 right from the brief, the mention was

01:09 - 26.638 I object strenuously, Your Honor.

01:09 - 29.674 And this is on page five from the fact that I have not received

01:09 - 32.735 an expert report, I have not received a CV, etc.

01:09 - 35.514 So due to those reasons, I would object to that. Right?

01:09 - 39.518 I think given that context, it's quite apparent that he was not

01:09 - 43.312 put on notice that they were going to call and try to qualify this guidance.

01:09 - 45.757 Well, how are you telling me as that?

01:09 - 49.051 If you would have that, if there would have been notice a witness list,

01:09 - 52.531 but no CV

01:09 - 55.558 that the CV objection couldn't have been raised.

01:09 - 58.203 He could have raised that objection as well.

01:09 - 59.871 But I think given why should I,

01:09 - 02.374 why should I read the transcript that this isn't just a CV

01:10 - 05.443 objection, that this is an objection beyond just a CV objection.

01:10 - 07.245 And it's a it's a pure we didn't even have.

01:10 - 08.747 No, we're being ambushed.

01:10 - 13.885 In other words, how do I how do I read that objection on the record and conclude

01:10 - 17.112 it was an ambush objection as opposed to just we haven't received the CV.

01:10 - 21.026 I think given the context, it's readily apparent from the situation

01:10 - 25.387 the Commonwealth is moving now to qualified this guidance counselor.

01:10 - 29.258 In no prior time had they given any indication they were going to calls.

01:10 - 32.428 But I but I don't know that I don't I don't know that.

01:10 - 35.798 All I know is I'm reading the transcript

01:10 - 39.235 and clearly counsel could have said,

01:10 - 42.080 Your Honor, this is ambush with this witness was that

01:10 - 45.784 we were never told anything about this witness, let alone get a CV.

01:10 - 46.586 But we had we.

01:10 - 47.852 This is a complete surprise.

01:10 - 49.888 You can't allow this to happen.

01:10 - 53.391 But as I read the transcript on a cold record, that doesn't seem to be

01:10 - 54.060 what happened here.

01:10 - 55.794 What seem to be happened here? Your Honor, we objected.

01:10 - 00.098 We don't have a CV for this witness until I respectfully disagree with that.

01:11 - 04.469 I think that he was so caught at that moment, all of a sudden,

01:11 - 09.874 they're trying to qualify, and they didn't even stay a but section 50.

01:11 - 11.409 I'm sorry. Pardon me.

01:11 - 12.811 There are two different objections.

01:11 - 15.146 That's what I'm concerned about.

01:11 - 16.881 They are two different arguments.

01:11 - 19.908 We weren't given notice that this witness would testify,

01:11 - 24.313 or we knew about the witness but didn't have a CV,

01:11 - 27.926 didn't know that she was going to offer expert testimony.

01:11 - 32.621 I mean, it is a little bit murky as to what happened here. Yes.

01:11 - 35.667 There was no indication either in the post sentence.

01:11 - 39.595 At the post sentence, the hearing on the post sentence motions

01:11 - 43.908 that trial counsel actually ever had any indication

01:11 - 46.411 that they were going to call this guidance counselor as a witness?

01:11 - 49.938 The objection was for no CV, no report.

01:11 - 51.750 All the hallmarks of things.

01:11 - 56.478 Typically, you're going to receive, from the Commonwealth to let you know

01:11 - 00.215 we're going to be calling this person as a witness here, as an expert witness

01:12 - 02.384 and also mentioned, etc.. I mean,

01:12 - 05.697 counselor, are is that your argument

01:12 - 12.103 that the application of 5920 requires compliance with criminal rule for future?

01:12 - 13.571 573 correct.

01:12 - 15.307 John, I'm basing that off of the six

01:12 - 18.310 justices that participated and done in both of their opinions.

01:12 - 21.146 All agreed to that's the gist of your argument, correct?

01:12 - 22.447 Correct.

01:12 - 23.481 So, so, yes.

01:12 - 26.518 So 573 would apply, that given

01:12 - 30.755 the circumstances here mid trial, no advance notice

01:12 - 35.417 that they were going to call this guidance counselor is an expert under 5920.

01:12 - 39.030 They had no ability to even request a report.

01:12 - 41.700 This was scheduled for a one day trial.

01:12 - 45.494 The testimony in this trial was completed after two hours.

01:12 - 49.107 The idea

01:12 - 54.813 that the trial judge would have been able to somehow continue it is out of

01:12 - 00.342 the question is a question because it's so jeopardy of detached at this point.

01:13 - 01.653 They were two witnesses.

01:13 - 05.180 They had the Affiant testify, and the child had already testified.

01:13 - 07.025 At that point.

01:13 - 09.894 Then they called this guidance counselor,

01:13 - 12.364 and then they seek to qualify them as a witness.

01:13 - 15.958 This is a lot different than in done where it was the night before.

01:13 - 19.604 Well, I understand that, but, you can ask for a continuance

01:13 - 22.540 in the middle of trial. Say, Your Honor, I'm not prepared.

01:13 - 24.342 I didn't know anything about this witness.

01:13 - 27.479 And the judge could have said, I'll give you till tomorrow to get prepared.

01:13 - 30.506 We will reconvene tomorrow with this witness.

01:13 - 33.351 So the problem with that is the jury itself.

01:13 - 35.520 Did you did was there ever an ask?

01:13 - 38.022 Was never an ask for a continuance problem with it.

01:13 - 39.858 But I would still argue that it's

01:13 - 42.885 substantially different from the situation in Dunn.

01:13 - 45.029 Which would have occurred beforehand.

01:13 - 48.867 This jury was selected for one day their availability of all the jurors.

01:13 - 49.891 It's just not

01:13 - 53.772 practical to be able to say, all of you are going to need to come back.

01:13 - 57.266 And even on that regard, that gives you maybe that

01:13 - 01.312 maybe we say we continue it overnight and we allow the Commonwealth to confer

01:14 - 04.616 with this expert and be able to provide

01:14 - 08.243 some kind of report, such as was provided

01:14 - 10.221 where you could have gone to sidebar

01:14 - 13.248 and asked for an offer of proof on what she was going to testify to,

01:14 - 16.494 and then take your day or the rest of your day

01:14 - 19.521 to prepare and reconvene and

01:14 - 22.567 complete the trial, except the burden falls on the Commonwealth

01:14 - 25.727 to provide that material not at the defendant.

01:14 - 26.338 Correct.

01:14 - 29.698 And how is he going to have any opportunity to go reach out to his own

01:14 - 33.111 understanding at 5920 allows him to do that on his own.

01:14 - 36.014 But now he's just at your trial.

01:14 - 37.081 That's your argument.

01:14 - 39.984 If you get in a report beforehand, you can actually get your own expert.

01:14 - 43.288 Give him him or her the report and say, is this correct?

01:14 - 45.290 Would you like to perform your own report?

01:14 - 48.560 If not, and they say everything is correct and that that expert that you're

01:14 - 52.154 consulting with can also provide you with critical cross-examination,

01:14 - 53.832 critical cross-examination,

01:14 - 57.593 setting all of the different materials that that expert would have relied upon.

01:14 - 00.872 That's the prejudice and that that's the prejudice.

01:15 - 04.742 It's in many ways similar to the prejudice that was brought out and done

01:15 - 06.444 by how I counsel Council.

01:15 - 09.113 Did you ever argue that prejudice?

01:15 - 12.217 I know that I'm looking I'm, you know, reading the transcript.

01:15 - 15.720 I mean, what you just said now would have been a wonderful argument

01:15 - 19.815 as to prejudice, but the best I could tell, that argument was never made.

01:15 - 22.760 So the argument, I do believe it was preserved

01:15 - 25.787 until I do believe it is argued in the Superior Court brief.

01:15 - 28.733 Trial counsel indicated

01:15 - 31.736 that because of the decision of the judge

01:15 - 35.497 to allow, the testimony was unable to be permitted to be prepared for trial.

01:15 - 38.743 And we should infer and the court should infer prejudice.

01:15 - 40.211 I didn't see any argument.

01:15 - 42.180 And how about the trial court?

01:15 - 45.407 I mean, when was that argument made to the trial court?

01:15 - 50.288 Had had had we had known, we could have gotten our own expert

01:15 - 55.460 or I could have, prepared, otherwise by doing research, etc..

01:15 - 56.494 I mean,

01:15 - 00.965 I don't know when that argument was made before the trial court during the trial,

01:16 - 05.603 not in the post sentence motions and the hearing on that matter.

01:16 - 06.105 It was.

01:16 - 10.041 And that's where the trial judge himself even acknowledged the argument

01:16 - 13.201 that was made before the trial court was I was ambushed.

01:16 - 14.747 Correct.

01:16 - 18.206 And then the trial judge is supposed to infer what that means.

01:16 - 20.019 I was

01:16 - 23.121 ambushed, and then therefore I could not.

01:16 - 26.991 I mean, I'm just I'm just wondering,

01:16 - 32.788 where this prejudiced argument was made in the trial court,

01:16 - 37.526 which is, you know, was a critical aspect of the Dunn decision?

01:16 - 39.904 Yes. That was the split and done well.

01:16 - 41.105 And that's what I'm saying.

01:16 - 45.867 All the more reason for us to look at this record and see where is the argument

01:16 - 49.037 as to the prejudice that was incurred.

01:16 - 52.483 The argument was not fleshed out nearly to the same degree.

01:16 - 54.519 And part of the reason for that was we didn't

01:16 - 56.854 there was no report like there was in Dunn.

01:16 - 02.794 There was no way to go back into research and to consult with a different justice,

01:17 - 06.188 or to consult with a different expert, because you didn't even have that

01:17 - 09.534 testimony and you didn't have the report that you had initially.

01:17 - 12.437 What I think is a problem here

01:17 - 15.597 is that it's apparent there was a discovery violation.

01:17 - 19.134 The Commonwealth sprung this expert mid trial

01:17 - 23.238 without any advance notice, without the CV, without the report, etc.

01:17 - 27.852 The trial court, the judge Aird by allowing

01:17 - 31.480 that testimony should have precluded it, should have called,

01:17 - 34.850 should have done any number of things rather than just allow

01:17 - 38.654 that expert to then testify over the trial court's objection.

01:17 - 40.465 But that gets back to the point.

01:17 - 44.960 I mean, if if the objection was no notice,

01:17 - 48.272 that opens up a variety

01:17 - 51.299 of responses from the trial court.

01:17 - 53.878 However, if the objection is

01:17 - 57.415 I didn't get an expert report that limits

01:17 - 00.618 a response that the trial judge is going to be able to make.

01:18 - 03.745 And, you know, back to this, back to this question.

01:18 - 08.192 I mean, you know, I don't see anything in the record

01:18 - 11.996 that would suggest that the trial judge knew that

01:18 - 15.891 there was no notice that this witness was going to be called.

01:18 - 20.896 Yes. I think that that was apparent from the objection that was made.

01:18 - 24.776 I don't have an expert report that the defendant have the CV.

01:18 - 29.480 I never I never received the CV, I never but but that that could have again,

01:18 - 31.315 I'm reading it as a cold record. Right, right.

01:18 - 36.788 If I'm reading that transcript, that argument could simply be we requested

01:18 - 39.815 it under the rules of criminal procedure and they have not provided it.

01:18 - 41.693 There was a request.

01:18 - 45.821 It was initial discovery request when trial counsel took over the case

01:18 - 49.224 that largely track the language of 573, right.

01:18 - 53.295 The Commonwealth never provided anything, never provided any notice.

01:18 - 54.572 And that's the argument you made.

01:18 - 58.209 We asked for the CV and they didn't give it to us and asked for the report.

01:18 - 02.938 We asked for any materials or any other continuing duty to disclose under 573 D.

01:19 - 03.449 Right.

01:19 - 07.185 In the end, if the moment and they obviously this guidance counselor

01:19 - 10.712 lived and worked in New York state, she was subpoenaed for trial.

01:19 - 14.425 The Commonwealth utilized the testimony

01:19 - 17.452 it got from her in its closing argument.

01:19 - 19.497 20% of the client's questioning.

01:19 - 22.700 And my concern in this case is not about whether the district attorney acted

01:19 - 23.835 properly or not.

01:19 - 27.605 And I'm not I'm not saying they did or they didn't at this point in time,

01:19 - 32.009 my, my, my focus of my questioning has been on the trial.

01:19 - 35.036 Counsel raised the right objection.

01:19 - 38.974 And is this objection about lack of notice

01:19 - 41.719 before us?

01:19 - 45.656 Because it seems to me it's a separate eye and you haven't really convinced me yet.

01:19 - 46.958 I'm still open to be convincing.

01:19 - 50.619 That lack of notice versus lack of CV are the same thing.

01:19 - 52.830 I understand that, Justice Robson.

01:19 - 55.900 However, I just continue to point to the context,

01:19 - 58.927 and I believe it was readily apparent in the rule 103.

01:19 - 00.438 I think it's preserved.

01:20 - 05.867 I think that the way this went down, the way this exchange transpired, because

01:20 - 09.747 all of a sudden they're calling the child guidance counselor

01:20 - 13.341 again, never mentioned once in the police report in discovery.

01:20 - 17.321 You're calling this witness, and now you're going to try

01:20 - 21.950 and qualifiers an expert in child sex abuse behavior on the spot.

01:20 - 23.427 Big trial.

01:20 - 24.796 Defense counsel stands up.

01:20 - 27.298 Says, your honor, I object strenuously.

01:20 - 28.966 I've never received a report.

01:20 - 31.993 I've never received the CV, etc.

01:20 - 37.008 I think that given that context, it's quite apparent that he was surprised by it

01:20 - 41.169 and he was objecting to never having any notice event in advance

01:20 - 44.806 of receipt of this, the Commonwealth's intend to call this expert,

01:20 - 47.685 and I don't believe into shift.

01:20 - 50.712 I understand the the large prejudiced,

01:20 - 54.482 debate that went on in the various opinions and done

01:20 - 58.186 however harmless error analysis here

01:20 - 01.957 places the burden on the Commonwealth to show

01:21 - 06.361 right beyond a reasonable doubt that this error was harmless.

01:21 - 08.105 I don't believe they can do that.

01:21 - 11.766 This testimony, this was not the typical sanitized

01:21 - 14.903 5920 expert that's become commonplace.

01:21 - 17.715 This was the child's guidance counselor.

01:21 - 22.577 You review the transcripts, the testimony, pages 71 through 73.

01:21 - 26.624 You will see that not only does the guidance counselor get into

01:21 - 30.051 some of that more generalized type victim behavior,

01:21 - 36.358 we associate with 5920, but also brings up areas,

01:21 - 40.471 I would argue, touching on credibility, such as this child is so intelligent,

01:21 - 43.541 who so very engaged that it wasn't until she was able

01:21 - 46.568 to move up into a different state that she got comfortable.

01:21 - 51.439 Was the, child at the time the trial time of 12, 14 years old.

01:21 - 51.717 Okay.

01:21 - 56.311 And how old was the child at the time that she reported the offenses?

01:21 - 58.089 I believe it ended at the age of nine.

01:21 - 59.314 Nine. So,

01:22 - 03.060 at some point in time,

01:22 - 06.755 you had to realize that one of your key defenses

01:22 - 12.103 to this case would be lack of memory or inaccurate memory or delayed reporting.

01:22 - 14.105 Certainly. Yes.

01:22 - 16.974 Yeah, obviously. And,

01:22 - 20.902 and as I stated, the way that the prosecutor on pages,

01:22 - 25.683 I mean, it roughly worked out to about 20% of the prosecutor's

01:22 - 29.477 closing pages 116, 170 and 120 in the transcripts.

01:22 - 34.015 Weren't that directly into her theory of the case.

01:22 - 37.419 This is not something you came up with on the spot.

01:22 - 41.198 You knew you were going to use this guidance counselor as an expert

01:22 - 43.100 under 5920.

01:22 - 46.127 You never gave any notice to defense counsel.

01:22 - 48.506 Nobody even ever used to work the term.

01:22 - 52.076 Nobody even cited the statute between trial counsel,

01:22 - 55.370 the Commonwealth nor the trial judge at the time of the trial.

01:22 - 59.174 She just moved to qualify that expert.

01:22 - 03.854 The court allowed it and allowed her to testify in that testify.

01:23 - 06.223 And that testimony was significant.

01:23 - 08.392 This was not a slam dunk prosecution.

01:23 - 10.895 There was 178 counts here.

01:23 - 14.222 Mr. Adams was acquitted of 116 of those counts.

01:23 - 20.195 You can't discount the impact that testimony from the child guidance counselor

01:23 - 22.007 who was asked to

01:23 - 25.009 is able to testify in that hybrid manner

01:23 - 28.036 about typical victim of sex behavior,

01:23 - 32.550 of sex crimes behaviors, as well as her own personal knowledge

01:23 - 35.019 and understanding from over a two year period

01:23 - 38.046 meeting with the child on a near weekly basis.

01:23 - 39.724 That's significant.

01:23 - 42.751 That's something that if it had been litigated ahead of time

01:23 - 47.164 very well, very likely would have passed out that testimony,

01:23 - 52.803 because that's why prosecutors have moved toward this more high approach,

01:23 - 56.398 where you have that sanitized tape expert that doesn't have that same type

01:23 - 59.868 of direct involvement with, the complainant

01:24 - 03.581 and who and then when the prosecution calls them, tends to do it

01:24 - 05.516 through the use of hypotheticals.

01:24 - 06.984 Here was a hybrid.

01:24 - 09.310 Was there a ten year motion filed in this case?

01:24 - 13.791 So there was there

01:24 - 17.018 was for the for the preliminary hearing, there was no ten.

01:24 - 17.662 I'm sorry.

01:24 - 20.688 That was an objection throughout the rest of the trial,

01:24 - 24.125 in the different transcripts, never a tender years motion held

01:24 - 27.772 there was that alternative means of testimony for the preliminary hearing,

01:24 - 31.800 which was ultimately stipulated to by original counsel.

01:24 - 35.346 So it never had to get to the point where this guidance counselor

01:24 - 37.381 would have been called as part of that.

01:24 - 40.608 Pre preliminary hearing alternative means.

01:24 - 42.820 So she never testified previously.

01:24 - 45.423 This guidance counselor, could you clarify something for me?

01:24 - 48.826 The trial judge, president judge,

01:24 - 51.829 Nancy Butts, heard the case.

01:24 - 56.200 Was she the judge who entered the new trial order,

01:24 - 59.170 or was that the senior judge that stepped that was senior.

01:24 - 02.697 The senior judge was the trial judge, Judge Kenneth Brown.

01:25 - 03.642 Okay.

01:25 - 06.510 And he's the one that heard the,

01:25 - 10.538 post sentence motions it just and found in fit.

01:25 - 14.819 He applied his own harmless error doctrine and found that it wasn't harmless error

01:25 - 16.287 found that he wanted a new trial.

01:25 - 21.358 However, it was past 150 days, and therefore was unable to take effect.

01:25 - 23.194 I misunderstood that, all right.

01:25 - 24.519 Thank you. Yes.

01:25 - 28.165 Anything else?

01:25 - 28.366 Yeah.

01:25 - 33.428 So I just it really boils down to that it was a clear cut violation.

01:25 - 37.308 Clear cut discovery violation.

01:25 - 38.342 The trial court aired.

01:25 - 39.743 And allowing the testimony.

01:25 - 41.178 That was not harmless. Error.

01:25 - 41.613 Harmless.

01:25 - 44.181 There is burning the Commonwealth date.

01:25 - 46.784 I have not heard any

01:25 - 50.154 argument necessarily showing why beyond a reasonable doubt.

01:25 - 53.591 Allowing this testimony from this guidance

01:25 - 57.285 counselor qualified as an expert hundred and 5920 was harmless error.

01:25 - 00.788 I don't believe that they can meet that burden.

01:26 - 04.893 And I, I would argue about the idea that we need to show us.

01:26 - 07.962 Pacific quantum of prejudice

01:26 - 10.108 to overcome that.

01:26 - 15.646 I think the harmless error analysis in this case warrants finding of a new trial.

01:26 - 18.282 And the counterman he was denied a fair trial.

01:26 - 21.852 Counterman was cited by both, Justices.

01:26 - 25.113 Donahue Mundy in both of the opinions.

01:26 - 27.358 The there were three opinions.

01:26 - 29.126 And, you know, I'll leave you out.

01:26 - 30.361 Just you just didn't bother me.

01:26 - 32.062 Just don't don't forget justice.

01:26 - 33.531 Wax opinion.

01:26 - 35.299 And you did forget it.

01:26 - 37.468 You did forget. Well, I didn't forget it.

01:26 - 38.436 I didn't forget it.

01:26 - 41.972 I tried to form much of my argument around that flipping

01:26 - 45.099 of the burden, really, in, in the,

01:26 - 48.579 harmless error analysis.

01:26 - 51.549 It doesn't the defendant doesn't need it's

01:26 - 54.576 not the defendant's burden to come up here and meet this certain plot,

01:26 - 58.012 he stated, albeit briefly, in

01:26 - 01.992 the Superior Court brief, that he was unable to be prepared for trial.

01:27 - 05.019 That establishes prejudice to prejudice is apparent

01:27 - 08.423 from how the situation went down mid trial.

01:27 - 11.502 No ability to even exercise.

01:27 - 15.997 573 be to be could not request

01:27 - 19.176 a report could have, but it wouldn't have been practical

01:27 - 19.878 as we stated,

01:27 - 21.946 and wouldn't have been able to get any to do

01:27 - 24.848 any of the research needed to combat it and prepare for trial.

01:27 - 28.152 The problem, from my perspective, and you are aware,

01:27 - 32.690 what I wrote in the Dunn case is that discovery violation

01:27 - 37.528 doesn't equal new trial discovery violation prejudice.

01:27 - 38.963 Then you get new trial.

01:27 - 42.533 And, truly my issue with it

01:27 - 46.527 is that I don't think prejudice was argued until you got to the appellate courts.

01:27 - 50.741 It did not appear in the the trial court in my opinion.

01:27 - 52.876 But my colleagues may differ.

01:27 - 53.078 Yeah.

01:27 - 57.071 And I think given the nature of this situation, the prejudice was apparent.

01:27 - 59.583 Can I can I just follow up on that? Yes.

01:27 - 02.886 The one guy that didn't, wasn't, done dumb deaf in one ear.

01:28 - 03.910 So I can't

01:28 - 06.123 didn't the trial judge read an opinion

01:28 - 09.227 in response to the post-trial motions finding that there was actual prejudice?

01:28 - 10.295 Correct.

01:28 - 12.329 So we don't even have to concern our self with the prejudice

01:28 - 15.466 the trial judge found it, he found it, and he ordered a new trial.

01:28 - 18.836 However, it was by operation law passed 150 days.

01:28 - 21.538 So I'm pretty sure that. All right. Thank you.

01:28 - 24.565 Well, prejudice is a legal conclusion, right?

01:28 - 27.211 All right.

01:28 - 27.612 Thank you.

01:28 - 30.638 Let's hear from your opposing counsel.

01:28 - 36.954 This is,

01:28 - 38.222 a little bit shorter.

01:28 - 39.123 All right.

01:28 - 39.457 Morning.

01:28 - 40.691 Justice for,

01:28 - 43.727 Lycoming County District Attorney's office for the Commonwealth of Pennsylvania.

01:28 - 45.162 Do you try the case?

01:28 - 48.189 I did not try the case either. So.

01:28 - 54.204 So I do think that the question,

01:28 - 58.066 that we're here to address is different than if Attorney Walker presented it.

01:28 - 02.570 The, question that Alice Carter was granted on was whether the

01:29 - 07.418 trial court aired, in permitting the, testimony

01:29 - 10.445 of the Commonwealth's expert.

01:29 - 13.991 The objection as raised

01:29 - 17.719 by defense at the trial was on.

01:29 - 18.830 He objected to the fact

01:29 - 21.856 that he had not received a CV and hadn't received an expert report.

01:29 - 25.202 The Commonwealth's position is that the trial court

01:29 - 28.229 can only rule on the objection that's presented to it at the time,

01:29 - 32.600 and the objection presented was no report in no CV.

01:29 - 35.946 What anybody who's tried a case or presided

01:29 - 38.973 in the case ought to understand.

01:29 - 42.219 When the defense gets ambushed like this

01:29 - 45.246 and defense counsel says, quote,

01:29 - 49.593 I object strenuously, Your Honor, from the fact that I have not received

01:29 - 53.054 an expert report, I have not received a CV, etc.

01:29 - 56.033 So due to those reasons, I would object to that.

01:29 - 59.494 And you seem to say that the word notice is a magic word

01:30 - 03.931 that since defense counsel didn't use the magic word of notice

01:30 - 07.368 that the trial judge couldn't possibly understand

01:30 - 10.514 that the defense lawyer was saying he's ambushed here.

01:30 - 11.582 Is that isn't that your point?

01:30 - 14.918 No. Your honor, I'm not saying that, notice is a magic word

01:30 - 17.287 or that the trial court couldn't understand that.

01:30 - 18.479 I shouldn't say that

01:30 - 22.426 the an expert report is not mandatory.

01:30 - 25.796 Obviously, mandatory discovery would include, an expert opinion.

01:30 - 29.490 And then the report can be ordered later or requested later.

01:30 - 34.238 So I think that the way that trial counsel presented it, the court

01:30 - 37.732 ruled on the objection in front of it, just lack of see the lack of report.

01:30 - 41.035 I don't think it necessarily follows that he didn't have notice at all.

01:30 - 47.008 I think that let's stop right there is your argument that if you're

01:30 - 50.211 utilizing 5920 for an expert,

01:30 - 53.281 you don't have to comply with 573.

01:30 - 55.526 No, that's not my argument, and I don't think so.

01:30 - 58.228 Not providing the expert report is not

01:30 - 01.198 does not mean you're not in compliance with rule 573.

01:31 - 05.235 Obviously, the expert opinion some kind of notice is required

01:31 - 08.262 under 573, not necessarily a formal report.

01:31 - 11.532 And I think that's where some of that confusion can lie.

01:31 - 16.713 Is that defense objected to that lack of report and lack of CV, not lack of notice.

01:31 - 21.118 I think that because we have the expert opinion is under mandatory discovery

01:31 - 26.356 and whether or not a report is, produced is under discretionary,

01:31 - 29.383 I, I think that's probably where some of the confusion came from here.

01:31 - 33.321 You're failing to take into consideration that the witness,

01:31 - 36.467 the expert witness was actually the child's counselor.

01:31 - 39.670 So their common sense likely there would be a plethora

01:31 - 43.397 of information that she had written with her contact with that person.

01:31 - 45.742 Is that your position? That's not relevant.

01:31 - 49.713 Under 573 that you should have provided that information

01:31 - 52.740 if you're calling the counselor as an expert.

01:31 - 57.778 So by telling the counselor as an expert for her expert opinion on children

01:31 - 02.483 like that, typical victim behaviors,

01:32 - 06.120 I don't think that her counseling records

01:32 - 09.891 with the child would fall under.

01:32 - 15.105 But her testimony, if I'm not mistaken, dealt directly with issues regarding that

01:32 - 19.042 particular child, not a generalized yes, her testimony did delve in there.

01:32 - 21.211 That was probably in violation of 5920.

01:32 - 23.046 That should have been an objection.

01:32 - 24.047 No objection was made.

01:32 - 27.074 Are you saying now I'm now I'm confused.

01:32 - 30.254 I as I read your brief,

01:32 - 33.281 I did not see you disputing.

01:32 - 36.059 Adam's assertions of prejudice.

01:32 - 39.086 It seemed like you're relying exclusively on waiver.

01:32 - 42.557 But now, as you're arguing here today,

01:32 - 47.271 and in response to Justice Daugherty, are you saying that the Commonwealth

01:32 - 51.074 did not violate the rules and that there's no prejudice?

01:32 - 53.243 Are you making that argument as well?

01:32 - 55.102 No, sir. I'm sorry, I don't follow how that,

01:32 - 00.083 it you're you're I,

01:33 - 04.078 I take it that your argument here is entirely waiver.

01:33 - 06.356 As I flip through your brief.

01:33 - 07.724 It's a brief. Brief?

01:33 - 11.028 You seem to stand only on a waiver argument.

01:33 - 16.833 But in listening to your answers here, it seems like you're you're backpedaling.

01:33 - 18.135 You're you're trying to suggest

01:33 - 21.295 there wasn't a violation and that there's no prejudice.

01:33 - 24.899 What exactly is the Commonwealth's argument here?

01:33 - 28.102 Argument first, Your Honor, is that

01:33 - 32.106 the court ruled on the objection in front of it, which was not no notice.

01:33 - 34.618 It was no CBA, no report.

01:33 - 36.186 From that, yes.

01:33 - 40.090 I am arguing that there was waiver

01:33 - 44.085 because the defense did not argue prejudice

01:33 - 47.264 in its appeal to the Superior Court.

01:33 - 51.802 So what what would be the what in your view,

01:33 - 55.472 would be the appropriate remedy for the clear discovery?

01:33 - 56.074 Violent?

01:33 - 00.334 I mean, you can't dispute there's a violation of 5703DI mean,

01:34 - 04.171 what would be the appropriate remedy here for this,

01:34 - 08.643 this violation even more egregious than what happened in Durham?

01:34 - 10.487 This is in the middle of trial.

01:34 - 12.122 Jury's in the box. Okay.

01:34 - 14.391 So going to the trial juries in the box defense says

01:34 - 17.418 we don't have an expert report and we don't have a CV.

01:34 - 19.796 Continuance is a possibility,

01:34 - 22.899 a recess, as I think they had a recess in Counterman.

01:34 - 24.635 I know that was going to stop right there.

01:34 - 27.137 The burden is on the Commonwealth pursuant to the rule.

01:34 - 31.132 Why is it incumbent upon the defendant to stop and request a jury

01:34 - 32.576 in the midst of a jury trial,

01:34 - 36.279 look like they're ineffective or unprepared based upon being sabotaged

01:34 - 38.815 by the Commonwealth? Okay. That's my concern.

01:34 - 43.377 So why your argument right there carries any weight with this court?

01:34 - 44.411 Okay.

01:34 - 46.991 Because you.

01:34 - 49.693 What you're saying is we don't have to give you anything.

01:34 - 52.753 Know that we're in front of a jury trial, and now we're going to tell you.

01:34 - 57.200 And the request is you defended, have to request a continuance

01:34 - 59.102 and keep your client in have or whatever,

01:34 - 03.064 so that the appearance in front of the jury is defense attorneys not prepared.

01:35 - 03.775 Okay.

01:35 - 07.401 That's not fair because that's what the rules not permit.

01:35 - 09.513 But you're asking us to accept.

01:35 - 13.050 Explain to me that, I am not defending how

01:35 - 16.477 the trial was handled by that attorney from the Commonwealth's position.

01:35 - 20.691 What we are dealing with here is whether or not the trial court aired

01:35 - 23.984 and making a ruling on the objection that was made in front of it,

01:35 - 27.698 but didn't didn't the trial court issue an opinion in response

01:35 - 29.933 to the post-trial motion saying, I made a mistake.

01:35 - 31.635 It's clearly prejudicial.

01:35 - 33.704 I mean, everything justice, work, justice, nocatee

01:35 - 35.906 and everybody else is asking you about prejudice

01:35 - 37.774 and about whether or not there is prejudice

01:35 - 40.801 and who's got the burden of proof, the trial court acknowledged,

01:35 - 44.605 based upon the totality of circumstances, based upon what happened,

01:35 - 47.751 and that the judge sitting up there, the trial court, he's got the best view

01:35 - 48.952 of what happened.

01:35 - 51.555 The judge said there's clearly prejudice here.

01:35 - 53.323 The trial court did find that there was prejudice.

01:35 - 57.227 Now, I think if you read the way you read the sentence opinion, I also don't think

01:35 - 00.254 that the trial court saw that initial objection

01:36 - 02.833 as saying that they had no notice at all.

01:36 - 04.191 But I understand that. But I'm

01:36 - 07.104 maybe my experience is a little bit different.

01:36 - 11.398 But having tried as many criminal cases as I've tried and in civil cases

01:36 - 16.279 in the context of a civil case, if if an attorney, a plaintiff's counsel

01:36 - 18.615 walked up in the middle of a criminal trial and said, judge,

01:36 - 19.950 I'm calling an expert,

01:36 - 22.977 and the defense attorney had no notice of it and was sitting there,

01:36 - 25.222 that would be an automatic mistrial.

01:36 - 28.258 I mean, at the drop of a hat I can't see.

01:36 - 32.295 I can't see under any circumstances why you're asking us to countenance

01:36 - 35.322 the same type of discovery violation

01:36 - 39.794 in the context of a criminal prosecution, where somebody liberties at stake,

01:36 - 43.640 which is so much more important than in civil remedies.

01:36 - 46.676 I mean, you have a clear violation of a of a rule.

01:36 - 50.547 You have a defense attorney who's sitting there, no notice, no expert

01:36 - 54.108 report, nothing, no ability to kind of get their own expert,

01:36 - 57.411 no ability to consult with their own expert about the report.

01:36 - 59.422 And I know we're going to argue in the back

01:36 - 00.924 about whether or not this constitutes

01:37 - 03.918 quote unquote, prejudice, but I can't see anything more prejudicial

01:37 - 07.688 to a defense attorney than sitting there and getting hit with an expert

01:37 - 10.858 at the time of trial, without an expert report or no notice.

01:37 - 13.703 And now we're going to argue about whether or not they properly

01:37 - 17.198 preserved it, made a prejudicial argument at the time of trial.

01:37 - 20.544 That's a lot of words I'm sorry about.

01:37 - 21.078 No, that's okay.

01:37 - 22.846 I'm trying to find it and just wondering,

01:37 - 25.816 what is it you contend because it's just this stock you just mentioned.

01:37 - 27.250 We've got a clear violation.

01:37 - 28.552 What do you think the remedy is?

01:37 - 30.654 And whose burden is it to show prejudice?

01:37 - 33.223 And and if you're going to say it's a defense burden,

01:37 - 37.084 what did they have to show or to object at the time of trial to have it excluded?

01:37 - 39.963 I don't know. And perhaps a misunderstanding.

01:37 - 43.490 I didn't believe that defense was required at the trial level to show prejudice.

01:37 - 47.461 I think that it wasn't properly preserved through their superior court argument.

01:37 - 49.306 Why do you say they have to?

01:37 - 49.774 I mean,

01:37 - 51.274 they raised it in a post-trial motion,

01:37 - 53.410 and the judge dealt with it in a post-trial motion.

01:37 - 57.438 What more do you need, for it to be raised in front of the Superior Court

01:37 - 01.284 for preservation of the argument that there was prejudice.

01:38 - 04.278 They didn't argue prejudice.

01:38 - 07.157 So you so notwithstanding

01:38 - 11.619 that your brief only makes this waiver argument, you're

01:38 - 15.665 you're you're not renouncing a claim that he wasn't prejudiced.

01:38 - 20.995 You you're maintaining that this guy was not prejudiced by this this ambush tactic.

01:38 - 24.398 No, I'm saying that he waived the you are.

01:38 - 27.434 So you are relying strictly on this waiver argument? Yes.

01:38 - 40.381 You have any further arguments, fees?

01:38 - 47.988 You just a motion.

01:38 - 52.736 No. Your honor, I think that covered everything.

01:38 - 55.438 Thank you. All right. Thank you both very much. You.

01:38 - 55.740 Thank you.

01:38 - 58.766 Very good.

01:38 - 02.078 The next case to be argued is Schmidt versus

01:39 - 05.081 the Pennsylvania Department of Transportation.

01:39 - 08.785 This case asks the court to determine whether a government agency

01:39 - 12.589 can be held liable for the wrongful death of an individual

01:39 - 15.015 who was killed when a tree fell on his car.

01:39 - 18.929 Ellen Schmidt is the appellant in this case.

01:39 - 21.698 Mr. Schmidt is the widow of Jeffrey Schmidt,

01:39 - 25.936 who was killed in 2018 when a rotted tree limb fell onto his car

01:39 - 29.530 as he drove along South Gulf Road in Upper Merion Township.

01:39 - 33.567 The Pennsylvania Department of Transportation, or PennDOT,

01:39 - 35.111 is the appellate.

01:39 - 38.872 They're the party defending the lower court's ruling in its favor.

01:39 - 44.187 The central dispute is whether PennDOT can be held legally responsible for Mr.

01:39 - 46.923 Schmidt's death under Pennsylvania law.

01:39 - 48.758 The government is generally immune

01:39 - 52.019 from lawsuits unless a specific exception applies.

01:39 - 56.399 One such exception covers dangerous conditions on government

01:39 - 59.660 owned land, known as the real estate exception.

01:40 - 04.541 The key question is whether that exception applies here, where the dangerous

01:40 - 09.536 rotted portion of the tree allegedly hung directly over PennDOT highway.

01:40 - 14.375 But the tree trunk tree's trunk was rooted on a neighboring property

01:40 - 15.676 owned by someone else.

01:40 - 19.556 Mr. Schmidt is appealing the decision

01:40 - 22.425 of the Commonwealth Court, the intermediate appellate court

01:40 - 25.562 in this case, which ruled that PennDOT is immune

01:40 - 28.589 because the tree did not grow from PennDOT owned land.

01:40 - 32.960 Mrs. Schmidt argues that that ruling was wrong,

01:40 - 36.573 namely that because the decayed, dangerous part of the tree

01:40 - 41.544 was located in the airspace above PennDOT road, it was effectively

01:40 - 45.506 a hazard on PennDOT property, and PennDOT should be held accountable.

01:40 - 49.552 PennDOT counters that ownership of property does not extend

01:40 - 54.591 to objects merely suspended in the air above it, and asked, and that the tree

01:40 - 57.618 clearly originated from someone else's land.

01:40 - 00.296 Mr. Schmidt asks this court to reverse

01:41 - 03.323 the lower court's decision and send the case back for trial.

01:41 - 07.494 PennDOT asks the court to uphold the ruling that shields it from liability.

01:41 - 10.507 Let's listen and watch to the argument in Schmidt

01:41 - 13.767 versus Pennsylvania Department of Transportation.

01:41 - 18.882 Good morning.

01:41 - 23.353 The Commonwealth enjoys sovereign immunity against tort liability,

01:41 - 26.547 except where it is waived by the general Assembly.

01:41 - 33.263 In this appeal, Jeffrey Schmitt sustained fatal injuries after a rotted portion

01:41 - 38.926 of a tree overhanging a Commonwealth highway fell and crushed his vehicle.

01:41 - 43.940 Relevant for purposes of this appeal, although the portion of the tree

01:41 - 48.602 that fell extended over the road and PennDOT right away,

01:41 - 53.774 the base of the tree was located outside of that right away.

01:41 - 59.222 We granted Cotter to consider whether the overhanging portion of the tree

01:41 - 03.150 constituted a dangerous condition of Commonwealth real estate.

01:42 - 06.529 Thereby satisfying the rural property

01:42 - 09.923 exception to the Commonwealth's sovereign immunity.

01:42 - 15.338 As I understand it, there will be one argument

01:42 - 20.000 by the appellant and, two separate arguments by the appellees.

01:42 - 21.969 All right. Please proceed.

01:42 - 24.747 Good morning, Chief Justice Todd.

01:42 - 25.949 And may it please the court.

01:42 - 29.243 My name is Howard Ashman, and I represent the plaintiff,

01:42 - 34.681 appellant, Ellen Schmidt, as administrator of the estate of Jeffrey Schmidt.

01:42 - 38.128 With me at counsel table is David Cross

01:42 - 41.421 of the Saltzman Galaxy law firm co-counsel in the case.

01:42 - 45.259 And I'll tell you all, this is a very interesting case.

01:42 - 47.670 Very interesting case. So go ahead.

01:42 - 49.205 Thank you.

01:42 - 53.200 As you explain, Chief Justice Todd, this this case implicates

01:42 - 59.339 subsection b4 of the exceptions to sovereign immunity statute.

01:42 - 02.685 That's, applies to Commonwealth real estate.

01:43 - 05.712 And what that statute states at its outset

01:43 - 09.325 is that sovereign immunity is waived where there exists

01:43 - 13.520 a dangerous condition of Commonwealth agency real estate and sidewalks,

01:43 - 16.766 including Commonwealth owned real property.

01:43 - 21.995 In this case, plaintiffs expert witness, arborist and tree risk assessor

01:43 - 25.308 opined in his expert report, which was before the trial court,

01:43 - 28.969 that the summary judgment stage that the part of the tree that was rotted,

01:43 - 32.849 decayed and diseased and that fell and killed plaintiff's

01:43 - 36.610 husband was located directly above PennDOT roadway.

01:43 - 40.881 The dangerous condition was located within PennDOT right of way

01:43 - 46.053 under this court's decision in Snyder versus Harmon from 1989.

01:43 - 50.324 The dangerous condition must derive from, originate from,

01:43 - 53.460 or have as its source Commonwealth Realty.

01:43 - 57.106 It is our position in this case that where the rotted portion

01:43 - 00.801 of the tree that failed exists directly above the Commonwealth roadway.

01:44 - 05.706 That is a dangerous condition that originates from the Commonwealth

01:44 - 06.584 real estate,

01:44 - 11.345 because the Commonwealth's real estate does not consist merely of the dirt.

01:44 - 13.189 And as I said at the outset,

01:44 - 16.783 this provision waives for real estate and real property,

01:44 - 21.421 real property being even more broad than than just real estate.

01:44 - 25.025 But rather it also extends upward to the sky

01:44 - 27.237 and and down to the center of the earth.

01:44 - 34.010 If you're if you're including airspace, generally, would would you include

01:44 - 37.037 bridges, trestles, power lines,

01:44 - 40.307 anything going over the commonwealth's, highway?

01:44 - 43.087 Well, if

01:44 - 45.989 it became a dangerous condition, I mean, the hypothetical

01:44 - 48.891 that comes to mind for me, and this may be somewhat absurd.

01:44 - 52.729 Would be, you know, these cantilever arms that we see now on the interstates,

01:44 - 54.364 which are just incredibly huge.

01:44 - 59.135 Well, what if a private property owner, erected one of those and put an art

01:44 - 03.697 installation on top of the interstate or the Pennsylvania Turnpike?

01:45 - 07.477 And, and the purpose of the art installation was, you know,

01:45 - 11.138 this is a dangerous thing that someday is going to fall down here.

01:45 - 15.242 Well, if that's permanently there, on top of the Commonwealth real estate,

01:45 - 18.588 the Commonwealth's position is, you know, that's not a dangerous condition

01:45 - 19.256 of our real estate

01:45 - 23.050 because it's connected to the ground on the adjoining owners property.

01:45 - 28.388 And and so, you know, we we do draw a distinction between

01:45 - 33.260 the circumstances that are not persistent the way that this tree was.

01:45 - 37.631 This is an American sycamore that's, lives for hundreds of years.

01:45 - 39.776 That gets worse every year.

01:45 - 44.838 If if the bridge is deteriorating over the over the Commonwealth roadway and,

01:45 - 48.508 and it doesn't it's not Commonwealth property,

01:45 - 52.555 which I assume is a assumption of Your Honor's question,

01:45 - 55.716 because obviously, obviously, if it is, then that it's covered in any event.

01:45 - 59.095 You know, we we think that that could be a circumstance

01:45 - 02.765 that would give rise to liability because it's under your theory.

01:46 - 03.100 And, Mr.

01:46 - 05.868 Backman, the Commonwealth owns the bridge.

01:46 - 07.136 I'm sorry. Missed the very beginning.

01:46 - 09.839 Under your theory, the Commonwealth owns the bridge

01:46 - 13.276 just by virtue of the fact that, under your theory of this case,

01:46 - 16.737 the Commonwealth owns anything from hell to heaven

01:46 - 20.540 above its Crown property owns it.

01:46 - 25.078 It is a dangerous condition of Commonwealth real property.

01:46 - 27.123 No, no, no. You're saying they own it.

01:46 - 31.051 You're you're you're you're relying heaven to hell is your theory,

01:46 - 34.464 which means they owned the tree that was over topped, but not the tree.

01:46 - 35.865 The branch they didn't own the tree.

01:46 - 37.867 They just owned this branch.

01:46 - 41.661 And if your theory is adopted, they also own the bridge.

01:46 - 42.972 They also own.

01:46 - 43.540 Regardless of

01:46 - 47.534 whether it's a dangerous condition or not, it's property of the Commonwealth.

01:46 - 50.913 The Commonwealth is allowing this, this dangerous

01:46 - 54.508 trespass to exist, which gives rise to a dangerous.

01:46 - 57.520 So you're changing the you're changing the facts table for it.

01:46 - 58.521 Yeah, right.

01:46 - 01.391 I'm saying that they're responsible for it.

01:47 - 04.494 We we do not dispute the fact that in Pennsylvania,

01:47 - 08.288 the owner of the tree is based upon where the trunk goes into the ground.

01:47 - 12.602 So. So, I'm not saying that the Commonwealth that the Commonwealth.

01:47 - 15.438 And by the way, the Commonwealth does have the tree because it's separate property.

01:47 - 17.273 And that's a separate Commonwealth entity.

01:47 - 18.841 But but that's beside the point.

01:47 - 23.170 Well, it's not beside the point because you'll recover from one or the other.

01:47 - 27.007 Well, that and you'll hit maybe, unless you want to try to double the cap.

01:47 - 29.685 That's not necessarily germane to the legal issues.

01:47 - 30.709 Through

01:47 - 33.022 because

01:47 - 36.650 the tree was not dangerous above Septa property

01:47 - 41.121 approximately ten days before my client was killed in this winter storm.

01:47 - 45.568 Some, some good Samaritan called PennDOT and said, you know,

01:47 - 49.238 there's a dangerous tree limb at this very location

01:47 - 52.532 and the ownership of the thing, it's the ownership of the duty

01:47 - 56.036 so that the duty and talk can you're saying

01:47 - 00.507 speak to the immunity question in this context?

01:48 - 02.185 Isn't that right?

01:48 - 05.988 Yes. And and so, you know, all that the statute requires

01:48 - 09.792 is a dangerous condition of Commonwealth real property.

01:48 - 14.087 Not not that the Commonwealth owns the thing that's giving rise

01:48 - 15.965 to the dangerous condition.

01:48 - 19.735 You respond, then, to the Commonwealth's argument

01:48 - 22.762 about the implications of

01:48 - 25.107 of the notice aspect there.

01:48 - 27.801 In other words, how would you

01:48 - 31.047 recommend this court

01:48 - 36.243 set parameters for, the universe of cases out there

01:48 - 41.882 where rotting tree branches could be leaning over roads

01:48 - 45.252 or deteriorating bridges, for that matter?

01:48 - 47.997 What would be the what would be

01:48 - 50.991 the the common law rule to set there?

01:48 - 53.636 Well, certainly there's no such thing as strict liability

01:48 - 57.430 in tree, damaged cases.

01:48 - 03.045 So, so so one aspect of what plaintiffs will need to prove at this trial, which

01:49 - 08.084 we're very much hoping to pursue, is, is that the Commonwealth was negligent.

01:49 - 09.752 And for purposes of this appeal,

01:49 - 12.655 the Commonwealth does not dispute at the summary judgment stage

01:49 - 16.249 that the plaintiff has sufficient evidence to reach a jury on that point.

01:49 - 19.653 So the argument that somehow the Commonwealth now becomes liable

01:49 - 24.124 for any instance when when a tree falls onto a roadway is false for two reasons.

01:49 - 25.291 The first reason is

01:49 - 27.236 the patent case from the.

01:49 - 31.440 Commonwealth Court from 1996 involved a tree

01:49 - 34.710 that was damaged above the roadway, and liability was found to exist there.

01:49 - 38.281 That the Clarke case, which is a separate case where the tree

01:49 - 41.875 split in half from adjoining land off the road.

01:49 - 46.146 In that case, the Commonwealth Court correctly held that the

01:49 - 47.657 that the PennDOT was not liable

01:49 - 50.684 because the damaged portion of the tree was not over the road.

01:49 - 55.088 And so in that case, the deceased part of the tree was the trunk.

01:49 - 59.059 In our case, the disease part of the tree is the limb above the right.

01:49 - 03.763 But doesn't that doesn't the distinction have to turn on

01:50 - 10.012 whether the dangerous condition was one that the Commonwealth knew

01:50 - 11.847 or should have known, rather

01:50 - 15.141 than an act of God, because it absolutely could create the right.

01:50 - 19.045 No, I agree that we also have to prove that the Commonwealth's negligence

01:50 - 21.357 was negligent under the circumstances.

01:50 - 24.384 And and again, that is assumed

01:50 - 27.930 for purposes of this case.

01:50 - 33.360 Do I understand your argument of Commonwealth agency real estate includes airspace?

01:50 - 37.364 Yes. And and indeed,

01:50 - 41.301 if one looks to this court's decision in the Wise

01:50 - 45.839 case from 2021, that, Chief Justice Bear wrote,

01:50 - 50.577 and I believe that five members of the current court sat on which involved

01:50 - 54.247 a situation of inadequate lighting.

01:50 - 58.685 In that case, this court found that the real estate exception was triggered

01:50 - 03.323 by plaintiff's allegation of inadequate lighting and and lighting,

01:51 - 09.238 is even more attenuated in terms of not being attached to anything.

01:51 - 10.439 It's attached to a pole.

01:51 - 12.875 Yeah, well, there's a light that's attached to the bulb,

01:51 - 16.679 but but the but the light from the pole was being blocked by a tree

01:51 - 18.147 and some other things.

01:51 - 21.608 And maybe you even have a case where the tree limb is coming from off

01:51 - 24.754 of Commonwealth property and blocking the light.

01:51 - 28.591 And I think in the wise case, you know, the outcome would still be the same.

01:51 - 32.152 Whether it was a tree on the Commonwealth property or a tree counsel.

01:51 - 33.996 That's a little bit attenuated.

01:51 - 36.132 I mean, back to Justice, Socrates point.

01:51 - 41.061 I mean, your argument, involves the space above.

01:51 - 43.072 Here we have a highway.

01:51 - 45.775 I mean, it doesn't it didn't have to be a tree.

01:51 - 48.177 It could have been Chief Justice Todd's example.

01:51 - 51.547 It could have been a bridge that had concrete

01:51 - 54.717 falling from it onto the roadway.

01:51 - 59.713 The question is, does the Commonwealth have the obligation to have the duty

01:52 - 05.061 to maintain their roadway in a manner that would include

01:52 - 09.522 taking care of that dangerous, overhanging condition?

01:52 - 10.634 Right.

01:52 - 15.795 And and I know that there's been some discussion in separate opinions,

01:52 - 19.432 and of which I believe you joined Justice Donoghue,

01:52 - 22.945 saying that, you know, in an appropriate case

01:52 - 25.972 that should be the Commonwealth's duty,

01:52 - 29.618 if if the Commonwealth allows a dangerous condition

01:52 - 33.847 to exist on its roadway, whether it's through action or inaction.

01:52 - 36.292 I don't join that opinion. I wrote that opinion.

01:52 - 37.350 Right, right. And

01:52 - 38.962 and I, you

01:52 - 42.832 know, I'm just I'm questioning I mean, I get the notion

01:52 - 46.736 that the leader of this tree was the culprit in this case.

01:52 - 50.473 Yes, but the real issue is, does the Commonwealth

01:52 - 53.600 have a duty in the context of maintaining

01:52 - 56.870 their real property in such a fashion

01:52 - 00.306 to prevent this known problem

01:53 - 05.078 from creating the exact danger that it created and,

01:53 - 06.723 you know, I,

01:53 - 10.984 I think I, I realize that that may be a very difficult question at some levels,

01:53 - 14.864 but but in actuality, you know, the phone call came in the next day.

01:53 - 15.732 The Commonwealth went out

01:53 - 19.959 and took a look at the situation and the reason it didn't do anything,

01:53 - 24.807 I believe the record supports is, is that the person who went and took

01:53 - 29.545 a look, was testified it was characterized by by a more senior.

01:53 - 33.716 Commonwealth employee later in depositions as having been unqualified

01:53 - 38.120 and did a bad job in looking, said so without issue on dangerous condition.

01:53 - 39.355 So that'd be trial.

01:53 - 41.624 That'd be that get you in front of facts line.

01:53 - 42.892 So yes.

01:53 - 46.452 And and so if, if this Commonwealth employee went out and took a look

01:53 - 51.357 and saw that the tree was in a dangerous condition above the Commonwealth roadway,

01:53 - 52.836 she wasn't going to

01:53 - 55.862 then decide that it was on Septa property and so will ignore it.

01:53 - 00.867 But but that is the risk that I believe this court could create

01:54 - 03.979 if if the court affirms the Commonwealth Court,

01:54 - 08.875 which is that now the Commonwealth will not be motivated to take action

01:54 - 12.512 to address dangers that exist above its property that it's aware of,

01:54 - 15.758 because it faces no liability as a result of not doing that well.

01:54 - 18.952 But that's that's arguments against immunity for everything.

01:54 - 22.765 You know, like, how do you how do you deal with the language insider

01:54 - 26.235 that says that the dangerous condition has to derive, originate,

01:54 - 29.696 or have its source in the reality?

01:54 - 34.176 Yes, I mean, this the only way you can address

01:54 - 38.938 that is by arguing that the Commonwealth owned the airspace above the road.

01:54 - 42.052 The Commonwealth does on the airspace of the brother of it having to help

01:54 - 43.420 from having to help,

01:54 - 47.957 including including power lines, including bridges, including anything

01:54 - 51.718 that goes over the real estate that it's it's basically tax exempt property.

01:54 - 55.865 Obviously, power lines are not ordinarily going to be dangerous conditions.

01:54 - 56.966 Well, that's not true

01:54 - 59.959 because I live in a valley where power lines fall down all the time.

01:54 - 02.271 Okay. Well,

01:55 - 05.908 that may be due to something that that's, is not obvious beforehand.

01:55 - 09.111 Perhaps, but let me address it could be a rotted, frayed power line

01:55 - 13.215 that was damaged through, many, many storms and is just kind of

01:55 - 16.743 hanging there low and is at risk of breaking at any point in time.

01:55 - 18.354 If the Commonwealth hadn't noticed that,

01:55 - 20.756 then, then I think that's at the same result would apply.

01:55 - 22.524 Let me answer your main question, which was about Snyder,

01:55 - 25.551 because that that is a key point in this case, it.

01:55 - 28.655 Snyder said that the dangerous condition was and I was going to say

01:55 - 31.691 exactly the exact same thing you just said must derive from,

01:55 - 35.929 originate from, or have has its source, Commonwealth Realty and

01:55 - 40.075 again, I don't think that that was an example of belts and suspenders.

01:55 - 42.378 I think those are three separate things.

01:55 - 46.949 And and in our case, at a minimum, we think that we satisfy the originate

01:55 - 50.953 from prong of Snyder because the dangerous, diseased

01:55 - 54.314 and rotted portion of the tree was above the Commonwealth rules.

01:55 - 56.725 But it didn't exist by itself.

01:55 - 58.861 The tree was attached.

01:55 - 00.462 It's a tree, right?

01:56 - 03.966 It's not a hanging limb in the middle of the air.

01:56 - 07.660 It's a tree that that comes down on someone else's property.

01:56 - 11.898 If I if I have a neighbor's tree over my property they know has a rotted limb,

01:56 - 15.735 and I decide to have guests over and throw the party under that rotted limb.

01:56 - 20.482 You know, I think that there's a pretty good argument that I could be liable

01:56 - 25.244 if those guests sustain injuries, even though the owner of that tree

01:56 - 29.349 is my next door neighbor, because I was aware of the condition.

01:56 - 34.029 And I'm I'm I'm still a little confused because I thought we had established

01:56 - 38.491 that you were arguing responsible for the the Commonwealth was responsible

01:56 - 42.295 for things in the airspace above its highway. But

01:56 - 46.342 then I thought you agreed with Justice Robinson,

01:56 - 49.402 that you're actually arguing that they own it.

01:56 - 53.206 To my point, Snyder doesn't talk about who's responsible for it,

01:56 - 58.745 who has it doesn't talk about who has a duty to ameliorate a risk.

01:56 - 03.959 It simply talks about the defective condition must derive from, originate,

01:57 - 09.231 or have its source in Commonwealth real estate, not prop, not real estate,

01:57 - 14.093 that the Commonwealth has a privilege to to do something with.

01:57 - 16.972 So could you just, clarify that for me?

01:57 - 20.209 Are you arguing that in this kind of situation,

01:57 - 23.236 the Commonwealth owns everything in the airspace?

01:57 - 27.383 What we are saying is that the term real property,

01:57 - 30.410 which is also in this section before,

01:57 - 33.846 is the entire bundle of rights that includes not just the surface,

01:57 - 37.116 but everything above and below the ground that now

01:57 - 39.061 I when my came in from the federal government and say,

01:57 - 42.388 you know, at some point there's rights that belong to air travel,

01:57 - 45.134 you know, they can be used by air place, things like that. So I'm not.

01:57 - 46.668 So it doesn't extend indefinitely.

01:57 - 48.537 Well, it's the distinction there.

01:57 - 50.305 That's the famous chicken case. Right.

01:57 - 55.611 So so the airport the you know the FAA can fly the airplanes back and forth.

01:57 - 58.704 But you're not talking about transient condition, right?

01:57 - 02.084 You're talking about dangerous conditions of the real estate.

01:58 - 06.112 You're saying that from heaven to hell, these things known

01:58 - 08.624 known to the UN, which the Commonwealth's on notice,

01:58 - 10.592 the Commonwealth's responsible for. Correct.

01:58 - 13.986 And this lightning strike hit the tree over the road.

01:58 - 17.390 And that and that is where the danger originated, was in that spot.

01:58 - 20.827 And that spot is Commonwealth real estate because it's above the road.

01:58 - 24.706 And so this is a condition that originates from Commonwealth, a dangerous condition

01:58 - 27.330 that originates from Commonwealth real estate. That's my argument.

01:58 - 29.611 Okay.

01:58 - 32.638 So we ask that you would reverse any other questions.

01:58 - 34.117 Thank you very much.

01:58 - 35.717 Thank you.

01:58 - 37.519 Let's hear from, Mr.

01:58 - 40.546 Marla.

01:58 - 47.729 Madam Chief Justice and may please the court.

01:58 - 48.964 My name is Daniel Mullen.

01:58 - 50.099 I'm with the Pennsylvania.

01:58 - 53.426 Attorney General's office, and I'm here representing appellate PennDOT.

01:58 - 56.438 With me here today is my co-counsel, Deputy Attorney.

01:58 - 59.999 General Hannah Cogan, who did excellent work on the brief in this case.

01:59 - 04.904 Also here today is counsel, for Upper Merion Township, Michael Salak.

01:59 - 07.316 I'm going to just quickly go over the division of labor

01:59 - 08.917 between myself and Mister Salak.

01:59 - 12.654 Before I dive into my argument, I'm going to address the main issue

01:59 - 15.715 before the court today, the issue on which Al Khadra was granted,

01:59 - 19.519 which is whether or not PennDOT enjoys sovereign immunity from suit in this case,

01:59 - 22.297 Mister South will then address how the court's

01:59 - 26.359 disposition of that question could impact liability for municipalities.

01:59 - 31.264 It can I just ask, please, how does Upper Merion get to argue settle the case?

01:59 - 37.446 It's a good we don't want to Mickey argue except believe it's a good question.

01:59 - 40.182 Justice Wecht you're an appellate.

01:59 - 42.284 They're there by default in appellee.

01:59 - 45.988 And they they filed a brief and I matter's been satisfied as to them.

01:59 - 48.190 Right? That's right. They settled the case.

01:59 - 51.817 I still don't understand how they get to argue in case you choose.

01:59 - 55.130 I'm, you know, not entirely sure either.

01:59 - 55.765 Justice fact.

01:59 - 58.934 I mean, I again, I think the rules say that by default,

01:59 - 01.737 if you're not an appellant, you're an appellee.

02:00 - 05.598 I suppose we could have a penalty of record.

02:00 - 07.010 Correct.

02:00 - 08.911 And they elected to participate.

02:00 - 11.980 I didn't, you know, see that there was space for us

02:00 - 15.007 to and and the chief Justice said, yes.

02:00 - 17.119 Most importantly, I would have said no. Yeah.

02:00 - 18.921 And the case is over for them.

02:00 - 20.522 And most importantly, for my purpose.

02:00 - 21.924 They supported our argument.

02:00 - 23.458 So we didn't see any reason to,

02:00 - 25.527 you know, move to strike their brief or anything like that.

02:00 - 27.095 Okay.

02:00 - 30.699 So yeah, we think the court should affirm the Commonwealth court's ruling

02:00 - 34.727 that this case falls outside the plain text of the Sovereign Immunity Act.

02:00 - 38.473 As this court is well aware, the General Assembly enacted the Sovereign.

02:00 - 42.811 Immunity Act to insulate the Commonwealth not just from tort liability, but

02:00 - 47.149 from suit altogether, except for certain enumerated circumstances.

02:00 - 50.276 And it is well-established that the exceptions of sovereign immunity

02:00 - 54.213 must be strictly construed, consistent with the General Assembly's intent.

02:00 - 55.625 As has been

02:00 - 58.860 discussed already, the text of the real estate exception

02:00 - 02.130 limits the Commonwealth's liability to dangerous conditions that are.

02:01 - 05.157 Quote of Commonwealth Agency real estate.

02:01 - 09.829 My friend's interpretation of that exception is untenable for three reasons.

02:01 - 13.642 First, it's contrary to the plain text.

02:01 - 16.979 Second, it's contrary to 40 years of this court's decisions

02:01 - 21.274 interpreting that plain text dating back to Snyder in 1989

02:01 - 24.987 and continuing through Jones, Kagi and Ys, this court

02:01 - 28.190 has consistently interpreted the phrase of Commonwealth agency

02:01 - 31.250 real estate to require that the condition derive,

02:01 - 35.297 originate from, or have as its source the Commonwealth's land.

02:01 - 38.066 It must be the land itself.

02:01 - 42.337 Third, my friend's interpretation would upend 30 years of Commonwealth Court

02:01 - 44.306 jurisprudence, which has faithfully

02:01 - 47.833 and consistently applied both the text of the real estate exception

02:01 - 53.015 and this court's precedents, dating back to Snyder, to treat two to injurious

02:01 - 58.110 three cases where the base of the tree is situated on non Commonwealth property.

02:01 - 03.449 Again, those decisions correctly look at the base to determine who owns the tree

02:02 - 06.752 and whether or not it is of the Commonwealth Agency's land

02:02 - 09.731 here, because the tree was situated in this land,

02:02 - 11.266 not PennDOT.

02:02 - 14.660 The Commonwealth Court correctly determined that PennDOT enjoys sovereign immunity.

02:02 - 17.372 This court should reject my friend's,

02:02 - 21.777 request to have hundreds of thousands, if not millions, of trees that trespass

02:02 - 25.247 upon the Commonwealth's airspace be deemed of the Commonwealth's

02:02 - 28.341 land, as the Commonwealth Court correctly highlighted.

02:02 - 32.020 That novel argument would dramatically expand the real estate

02:02 - 36.015 exception beyond, what the General Assembly intended with its tax.

02:02 - 39.852 And this court has said many times that the plain text,

02:02 - 43.165 of the real estate exception is unambiguous.

02:02 - 44.299 But I want to point the court

02:02 - 47.827 towards another provision which I think reinforces that conclusion.

02:02 - 49.571 And that's a political subdivision.

02:02 - 52.665 Tort Claims Act, which was enacted on the exact same day.

02:02 - 56.102 And if you review the two statutes side by side,

02:02 - 59.472 the Political Subdivision Tort Claims Act,

02:02 - 02.117 ways liability for municipalities,

02:03 - 05.444 for property that is within their care, custody or control.

02:03 - 08.757 And they have a specific tree exception as well, which again

02:03 - 12.251 uses that same language care custody or control.

02:03 - 15.530 And we have to distinguish that from the language in the real estate

02:03 - 19.258 exception, the sovereign immunity of Commonwealth agency real estate.

02:03 - 20.036 And the

02:03 - 21.403 I think we have to effectuate

02:03 - 24.430 the difference between the language in those two statutes.

02:03 - 28.567 And if you were to hold that something that trespasses or encroaches upon

02:03 - 34.216 our airspace is of the Commonwealth land, I think we're essentially grafting

02:03 - 38.387 on to the Sovereign Immunity Act that care, custody and control language

02:03 - 40.122 that, again, does not appear

02:03 - 44.183 in the Sovereign Immunity Act, but does appear in a different statute.

02:03 - 47.662 I welcome any questions the court may have for me.

02:03 - 50.399 Please do, I suspect so, since you're a Pittsburgh.

02:03 - 52.200 Yep.

02:03 - 56.872 So you're coming in from the airport, and you you, you drive under that

02:03 - 00.175 massive, Norfolk Southern Railway

02:04 - 03.536 bridge and Carnegie, and it's crumbling.

02:04 - 06.605 Actually, this happened in the, Greenfield Bridge.

02:04 - 08.884 Right. That was shut down. Yeah.

02:04 - 11.186 There's big piece, big chunks of concrete.

02:04 - 13.989 Now, Asuma assume a scenario

02:04 - 17.359 where the Commonwealth knows about it, as it learned with the Greenfield Bridge.

02:04 - 18.527 Right.

02:04 - 24.466 You might shut the whole highway down

02:04 - 27.860 in order to repair it, just like you did with the Greenfield Bridge.

02:04 - 32.131 Now, isn't that a dangerous condition of your roadway?

02:04 - 35.110 Regardless of the fact that you might not own the bridge

02:04 - 38.704 or whatever it is that's overhanging it, and I in other words,

02:04 - 42.808 putting the putting the ownership question aside, is it not

02:04 - 46.245 is there not a dangerous condition of that road

02:04 - 49.815 because of what's hanging over it and dropping chunks of concrete?

02:04 - 53.528 I'm not sure I fully understand all the details of that,

02:04 - 56.898 but just as well, I don't know that we can set the ownership issue aside.

02:04 - 59.234 That's the sole issue in this case.

02:04 - 01.503 Is who owns the tree. You want it.

02:05 - 06.232 You want to go with ownership as a term of art, but ownership, not the

02:05 - 07.609 the language in the statute

02:05 - 12.071 is a dangerous condition of Commonwealth agency real estate.

02:05 - 12.815 Right.

02:05 - 17.643 So is it a dangerous is there a dangerous condition of your road

02:05 - 23.391 if there's this thing above hanging above that's going to drop, I would say no.

02:05 - 26.661 That's a dangerous condition of the bridge and something that overhangs

02:05 - 30.398 our airspace or trespass is on our airspace is not of the land to

02:05 - 33.535 to determine whether or not something is of our real estate,

02:05 - 36.862 you have to look to the ground, not the airspace, not to

02:05 - 40.942 do when it receives a phone call from a resident

02:05 - 44.403 saying there's a rotting bridge above that road.

02:05 - 46.848 Yeah, I think the same thing we do.

02:05 - 48.717 In any case, we investigate it,

02:05 - 53.255 we bring in the appropriate parties and the owner of the bridge.

02:05 - 55.657 I think in that scenario, we would alert them that, hey,

02:05 - 59.285 there's this condition that you need to fix so that it doesn't

02:05 - 01.630 know you actually out on the hike to take that tree down.

02:06 - 06.125 By law, we we we we do have a statutory bridge.

02:06 - 08.637 Well, do you have the right to take the bridge stuff?

02:06 - 10.872 No, we of course don't have the right to take the bridge out.

02:06 - 14.276 We don't have the right to take utilities down to another example you reference

02:06 - 17.245 earlier just right to close the roadway,

02:06 - 19.347 we might have a right to close the roadway.

02:06 - 20.615 And just look to your point.

02:06 - 23.118 The problem of the real estate.

02:06 - 23.753 Sorry. Say it again.

02:06 - 28.323 Just Diane, there exists a problem of the real estate of the property

02:06 - 31.951 because of the, problem that hovers above it.

02:06 - 33.863 No, I don't think that

02:06 - 36.898 renders it a condition of the real estate.

02:06 - 38.066 Justice done it.

02:06 - 42.137 And I think we it makes it it it's a dangerous condition

02:06 - 45.307 of the real estate under that scenario.

02:06 - 48.076 It is a dangerous condition of the real estate.

02:06 - 52.137 It makes it treacherous for motorists to, pass.

02:06 - 54.115 I respectfully disagree, Justice Donaghue.

02:06 - 56.484 I think to be a dangerous condition of the real estate.

02:06 - 59.154 We have to look at what's affixed to the land.

02:06 - 01.222 If I say, Mr. Mullen, what if I say, Mr.

02:07 - 02.457 Mullen, I've got a pool.

02:07 - 05.694 Why don't you bring your wife and child over and we'll have a pool party?

02:07 - 07.596 So you come over and there's this.

02:07 - 10.365 This is overhanging, massive tree branch

02:07 - 14.226 about to fall on you, or a wire that's about to fall on you.

02:07 - 17.496 Is it not a dangerous condition of my of my real estate?

02:07 - 19.708 Yes. Not necessarily.

02:07 - 22.611 No. If you don't own the tree and you don't own the wire.

02:07 - 24.746 No, it's not a dangerous condition of your real estate.

02:07 - 28.717 Now, you might have the right to take that tree branch off, but that doesn't

02:07 - 33.989 mean that it a trespassing, tree branch is necessarily of your real estate.

02:07 - 36.191 It's just that it's it's a trespass.

02:07 - 38.927 And so I think we need to be careful not to conflate,

02:07 - 42.597 I think the first prong, the the subpart A, which is whether we have a duty

02:07 - 45.958 and whether you can meet the traditional, you know, test for negligence.

02:07 - 50.305 And the subpart B question, which is, is this of the real estate

02:07 - 53.875 as the General Assembly intended when in an act of the sovereign Immunity Act.

02:07 - 57.379 So we're here on a pure I think, statutory construction

02:07 - 00.715 analysis, not a common law negligence duty.

02:08 - 04.552 And but you're right in the sense that, you know, I certainly understand

02:08 - 06.688 where that what some of the justices are coming from.

02:08 - 09.724 If we were looking at the statutory language in of itself at this point

02:08 - 13.118 in time, looking at of the real estate, you could say

02:08 - 14.830 looking at nothing

02:08 - 18.900 else, if there is a trespassing, rotting tree above my home,

02:08 - 23.062 that's a dangerous condition for my home with no spare with me.

02:08 - 27.108 Sure, I'm putting aside what I think is the problem for the other side's

02:08 - 30.135 position, or the problem is Snyder.

02:08 - 35.107 Snyder already interpreted that language of the statute a long time ago

02:08 - 38.186 and said when the General Assembly was saying dangerous

02:08 - 42.257 condition of the real estate, they said the dangerous condition has to derive,

02:08 - 46.528 originate or have its source in Commonwealth real estate.

02:08 - 52.133 Commonwealth Realty, these are these hypotheticals about the bridge, the wire,

02:08 - 57.896 the tree are dangerous conditions, no question, but they're dangerous.

02:08 - 01.366 The question is, is it a dangerous condition that emanates

02:09 - 03.912 from Commonwealth real estate? Which is why I think Mr.

02:09 - 05.413 Bousman was being very honest.

02:09 - 07.582 He's saying in order for me to basically win,

02:09 - 10.585 I have to prove that the tree belong to the Commonwealth, right?

02:09 - 12.287 Yeah. I think that was all really well put.

02:09 - 13.588 Justice Bronson and I

02:09 - 17.425 agree with how you characterized it all and what the court said.

02:09 - 19.260 And we could overrule Snyder, I guess.

02:09 - 20.862 I mean, you haven't been you haven't been asked to.

02:09 - 23.264 And I know this court takes its precedent really seriously,

02:09 - 25.633 and it doesn't typically overturn precedent

02:09 - 29.437 without a being asked to and be developed advocacy on that point.

02:09 - 32.307 So my as I understand my friend's brief,

02:09 - 35.734 he takes Snyder and all of this court's precedent as a given.

02:09 - 38.880 And so I think in light of that, we have to effectuate that language

02:09 - 40.749 that you that you read, which is,

02:09 - 44.676 you know, again, the load bearing term and the real estate exception is of

02:09 - 47.722 it has to derive, originate from or have as its source.

02:09 - 51.960 So, you know, the premise of our summary judgment motion was assumed.

02:09 - 52.928 They can, you know,

02:09 - 56.722 prove everything else to a jury, including that the condition was dangerous.

02:09 - 57.867 The only question is,

02:09 - 01.326 is it of meaning derive originated from or have as its source

02:10 - 06.775 and to to make that determination, you look to the ground and and would be.

02:10 - 08.734 Let's tease that out a bit please.

02:10 - 10.946 Your argument

02:10 - 13.939 is that the object must be attached to the ground.

02:10 - 18.987 So under the definitions, first of all, highways are construed

02:10 - 22.014 as part and parcel of a Commonwealth real estate

02:10 - 25.083 at 5822 before

02:10 - 28.530 and it describes at the highway

02:10 - 32.391 under definitions is quote unquote a way or place

02:10 - 36.261 of whatever nature open to the use of the public

02:10 - 40.432 as a matter of right for purposes of vehicular traffic.

02:10 - 44.469 But the definition of highway is in premised

02:10 - 47.973 on the latter, a literal road on the ground.

02:10 - 52.044 How can we give 5822 before

02:10 - 57.549 such a, construction that it requires something to be affixed

02:10 - 02.621 when the General Assembly said it in a much broader term.

02:11 - 03.165 Right.

02:11 - 07.468 I'm confused because it your argument negates

02:11 - 12.030 the definition of highway and your argument of immunity

02:11 - 14.009 doesn't hold weight.

02:11 - 19.071 With regard to the definition, I don't see any inconsistently inconsistency.

02:11 - 20.348 Justice. Dockery.

02:11 - 24.118 So, as this court said in Kagi, I mean, a highway is

02:11 - 29.123 just another one category of real estate, you know, that's covered by the act.

02:11 - 32.727 It's, it's but so we're looking at whether it is of Commonwealth agency land.

02:11 - 37.055 And so I don't think there's any inconsistency with how we describe.

02:11 - 38.300 PennDOT.

02:11 - 41.269 You know, overall obligation over the highway.

02:11 - 42.238 But then when we're looking

02:11 - 46.708 at the specific waiver, it has to be of the real estate itself.

02:11 - 48.209 And the way this court has interpreted

02:11 - 51.703 that phrase is it has to be affixed to the land.

02:11 - 57.142 And so I think I don't see any tension between those two concepts.

02:11 - 01.346 And as this court identified, both in Kagi and Ys,

02:12 - 05.126 you know, we're not going to presume that that Commonwealth agencies

02:12 - 09.021 act irresponsibly when it comes to the safety of the highways.

02:12 - 12.433 But again, we have to effectuate the intent

02:12 - 15.770 of the legislature in enacting the Sovereign Immunity Act.

02:12 - 19.107 And the purpose there was to limit our liability.

02:12 - 24.136 Unless you fall into the four, you know, the four walls of the exception itself.

02:12 - 28.206 I hope I've answered your question, but yeah, council here here's,

02:12 - 32.086 and this is really an follow up to, Justice Daugherty.

02:12 - 35.580 So, question here's my problem.

02:12 - 39.885 The source of the problem here

02:12 - 44.289 with notice of that overhanging recorded leader,

02:12 - 49.161 the source was allowing the roadway to remain open.

02:12 - 55.410 That was the source of, of the, the, danger

02:12 - 59.638 that existed here with knowledge of that overhanging leader.

02:12 - 03.275 The source of the issue is,

02:13 - 06.321 is of the Commonwealth property,

02:13 - 09.781 i.e., maintaining the roadway, operational.

02:13 - 11.226 Yeah.

02:13 - 14.329 I mean, I, I suppose I see sources

02:13 - 18.132 as sort of a synonym for like, derive originated from or have its source.

02:13 - 21.869 And I think, again, first source, it means the trunk of the tree.

02:13 - 22.137 Yeah.

02:13 - 25.306 I think to determine the source you have to look at the base of the tree because,

02:13 - 30.578 as Justice Bronson alluded to earlier, a tree can't exist in out of thin air.

02:13 - 33.581 It has to be affixed to the ground somewhere.

02:13 - 37.309 So I don't think we accept the overhanging leader here,

02:13 - 43.091 which is ultimately not the actual source of the injury here.

02:13 - 48.353 I the actual source of the injury was PennDOT allowing its roadway

02:13 - 52.834 to remain open with knowledge of that danger.

02:13 - 56.804 So it was allowing the traffic to continue,

02:13 - 00.165 to, you know, travel in that area. I mean,

02:14 - 05.013 I see your, definition or

02:14 - 09.107 use of the word source, to be more limited.

02:14 - 13.011 So it's not to capture what actually happened here.

02:14 - 17.883 I mean, had had the had the roadway been closed, we wouldn't be here.

02:14 - 20.161 I appreciate that just a tiny bit.

02:14 - 24.956 So, you know, it is the real property that is, at issue here.

02:14 - 29.604 Why why is it maintained in a fashion that made it safe for the intended use?

02:14 - 29.805 Right.

02:14 - 33.799 But as the as the arborist report suggests, it wasn't maintained by Septa.

02:14 - 37.178 The owner of the tree and, you know, I think we can't work backwards

02:14 - 41.006 from the sort of happenstance of like the exact point where the tree,

02:14 - 45.510 if you can, if if God had knowledge of this

02:14 - 50.258 issue, width of their property, of their property,

02:14 - 55.821 that portion of their property was dangerous as a result of the overhang.

02:14 - 01.169 Again, I think in an a trespassing or encroaching condition

02:15 - 05.540 that originates from another property or has its source, another property.

02:15 - 08.509 Change the facts. Let's say the tree fell down.

02:15 - 09.211 That's all I got.

02:15 - 11.913 And the road and PennDOT was aware there was a tree

02:15 - 13.848 in the middle of the road.

02:15 - 18.477 And someone got injured, by hitting the tree in the middle of the road.

02:15 - 23.381 Does is is that now the road has a dangerous condition

02:15 - 26.127 because of branches in the road.

02:15 - 31.165 I know I think still the the source of the tree is non Commonwealth land.

02:15 - 32.867 I mean if we just that's Jones right.

02:15 - 34.802 Jones is the rock salt case correct.

02:15 - 38.330 And and and we basically said

02:15 - 42.176 that the rock salt did not derive from the real estate.

02:15 - 44.445 Correct. So it has to derive from the land itself.

02:15 - 44.780 Right.

02:15 - 48.583 So, so the shutting down of the plat, there was no duty to shut down the train

02:15 - 49.584 platform. And Jones.

02:15 - 51.986 No not put it was put aside the duty question. Yeah.

02:15 - 53.955 There was no liability.

02:15 - 54.456 Correct.

02:15 - 58.826 For the dangerous condition of the platform by virtue of the rock salt.

02:15 - 59.061 Right.

02:15 - 02.287 The salt didn't derive from the land itself, just as a tree

02:16 - 05.366 sitting on the ground doesn't derive from our land itself.

02:16 - 08.603 It it derives in this case from except land,

02:16 - 11.839 which I'll note is also a commonwealth agency here.

02:16 - 14.442 So it's a sort of quirk of, of, of this case.

02:16 - 18.146 But I think it is telling that they haven't moved for summary judgment.

02:16 - 20.414 They haven't participated in this case.

02:16 - 24.576 And, you know, if my sort of friends theory of this case is to be believed,

02:16 - 27.622 they're not on the hook at all because there was no dangerous condition

02:16 - 29.457 deriving from their real estate.

02:16 - 31.492 But of course, they are still here

02:16 - 35.220 because the base of the tree was firmly situated in this property.

02:16 - 38.390 That's who was responsible for maintaining the entirety of the tree.

02:16 - 39.201 Either or.

02:16 - 42.336 You, you know, the chain has to be there or it can't be.

02:16 - 45.106 It can't be. It doesn't have to be. There can be joint liability.

02:16 - 48.576 But I think in this particular case, because the base of the tree in its

02:16 - 53.271 entirety was situated on his land, it's responsible for it, not PennDOT.

02:16 - 56.250 You can have situations where perhaps it sort of

02:16 - 00.087 goes down the middle of the property line, and the base of the tree is situated

02:17 - 00.422 in both.

02:17 - 04.759 And I think there you would sort of engage in a joint and civil liability analysis.

02:17 - 09.854 But so it doesn't have to be, but in the context of this case, it is.

02:17 - 10.732 All right.

02:17 - 13.601 Thank you, Mr. Mullen. Let's hear from Mr. Celik.

02:17 - 14.625 Thank you.

02:17 - 21.742 Good morning. All.

02:17 - 22.644 May it please the court.

02:17 - 25.379 Michael Salak here on behalf of Upper Marion Township,

02:17 - 27.982 can I ask you, counsel, normally when you settle a case,

02:17 - 29.784 you don't want to have anything to do with it.

02:17 - 31.085 You're done with it.

02:17 - 33.621 I mean, putting aside the issue of.

02:17 - 34.323 Can you be here?

02:17 - 36.691 Why why do you why do you need to be here?

02:17 - 40.528 So the township's interested in this to the extent that this ruling will be

02:17 - 43.788 used in the future to argue any expansion of tree liability

02:17 - 46.767 in the governmental immunity context.

02:17 - 48.536 So there's not really a different statute.

02:17 - 50.171 I mean,

02:17 - 52.106 they're here under,

02:17 - 56.177 the the Sovereign Immunity Act, and you're talking about the Tort Claims Act

02:17 - 00.105 or totally different statute, and you have the word trees in your statute.

02:18 - 02.018 They don't have the word trees in their statute,

02:18 - 03.619 correct, your honor.

02:18 - 06.645 So there is case law out there that says the two immunities

02:18 - 12.460 can be interpreted consistently when addressing the same subject matter, i.e.

02:18 - 12.995 trees.

02:18 - 17.531 So, the township believes, I believe, that there is a possibility

02:18 - 20.558 that if this issue crops up again in the future,

02:18 - 24.605 this ruling will be held, even though it's a sovereign immunity matter.

02:18 - 28.776 I get that will be used to argue for an expansion of tree liability

02:18 - 30.845 in the governmental immunity context.

02:18 - 33.281 I don't believe that's what you have greater liability.

02:18 - 36.441 Your immunity is lessened for care, custody and control.

02:18 - 37.985 I'm sorry, Your Honor. I didn't catch the first.

02:18 - 42.390 You don't acknowledge that your immunity is less or less or less protection

02:18 - 44.525 than the Commonwealth because you have care,

02:18 - 46.927 custody and control liability or lack of immunity.

02:18 - 51.656 That, I'm not sure that I would agree to that.

02:18 - 55.060 I think today

02:18 - 59.140 I think what concerns the township in this case is the fact

02:18 - 03.144 that this ruling could be used in the governmental immunity context.

02:19 - 06.738 I think the case is pretty clear that the two immunities can be used,

02:19 - 12.677 one way or the other when addressing the same subject, that

02:19 - 15.589 because it is your concern that the floor is raised here

02:19 - 18.626 for Commonwealth liability that necessarily raises your for.

02:19 - 21.962 Oh, my concern is that what what appellants are asking for

02:19 - 26.033 is an expansion of tree liability, a broad interpretation

02:19 - 29.561 of tree liability contrary to to the directives of the court.

02:19 - 32.606 And I think that's a very dangerous result that we have to prevent that.

02:19 - 35.600 I think the Commonwealth Court astutely ruled to prevent.

02:19 - 38.312 And so that that's my concern.

02:19 - 40.715 And that's why I'm here, and that's why I issued

02:19 - 43.617 that's why I submitted the brief.

02:19 - 46.454 Just does that answer your question sufficiently?

02:19 - 49.481 All right. So,

02:19 - 55.396 So for many of the same reasons that were set forth by Mr.

02:19 - 57.298 Moreland, the township agrees

02:19 - 00.625 and believes that the Commonwealth court's ruling should be affirmed.

02:20 - 03.704 I'm not going to repeat all of those.

02:20 - 06.364 I am going to hit on a couple,

02:20 - 08.477 nuances that

02:20 - 11.503 are specific to governmental immunity and for the township.

02:20 - 11.812 Okay.

02:20 - 12.681 And I'll keep it brief,

02:20 - 16.517 because I know that this is, batter number two here on this argument.

02:20 - 19.544 So I'm cognizant of that.

02:20 - 23.290 In listening to all of the arguments today.

02:20 - 24.625 But but obviously this one,

02:20 - 28.987 there are a lot of issues that are involved in this, appeal,

02:20 - 33.324 some more important than others, some relevant,

02:20 - 36.761 some more relevant than others.

02:20 - 39.974 I tend to look at things,

02:20 - 43.001 try to boil them down into, into

02:20 - 47.148 the, the, the crux of it, the bottom line, what we should focus on.

02:20 - 50.175 And in this case, in this case,

02:20 - 53.087 what we can't lose

02:20 - 56.290 sight of, the fact is the directive from Pennsylvania courts

02:20 - 59.751 that both of these immunities, but particularly governmental immunity,

02:21 - 04.155 need to be narrowly construed, narrowly interpreted.

02:21 - 05.856 Okay.

02:21 - 09.461 And the only way to do that with this issue,

02:21 - 13.574 the only way is to draw

02:21 - 16.868 the line of tree liability at the right of way.

02:21 - 20.939 If we expand tree liability to include trees

02:21 - 26.587 whose bases are outside the right of way, whose branch is sprawling,

02:21 - 29.614 we make their way over other people's properties.

02:21 - 34.028 To me, that is a very clear way

02:21 - 37.522 to broadly interpret this immunity, something we cannot do.

02:21 - 40.568 So the only way to narrowly interpret

02:21 - 44.438 it is to base it on the tree trunk, on the tree base.

02:21 - 45.806 Where is that?

02:21 - 48.876 And it's got to be within the right of way beyond that.

02:21 - 52.680 Then, you know, we are in a commonwealth with a lot of trees

02:21 - 55.349 and a lot of roads that are flanked by a lot of trees.

02:21 - 59.253 We are expanding municipal liability to now

02:21 - 03.081 include these trees, hundreds of thousands of additional trees

02:22 - 07.294 as part of their liability and and you know,

02:22 - 10.464 I think we all know what that's going to do is it's going to increase the

02:22 - 13.758 the cost of these municipalities to maintain their roads.

02:22 - 17.671 They're going to have to retain arborists to now drive these roads

02:22 - 18.873 and look for any branches,

02:22 - 22.567 regardless of where the tree is located, regardless of who owns the tree.

02:22 - 23.578 All of a sudden now

02:22 - 27.739 municipalities need to retain arborist to look for branches of others.

02:22 - 28.917 Why don't.

02:22 - 34.012 I don't know if this is too granular, but why is that parade of horribles

02:22 - 36.490 attending here isn't the

02:22 - 39.951 issue of not retaining an arborist, but simply

02:22 - 44.756 reporting up the chain of command when notices given about a dangerous tree

02:22 - 48.793 as as could have happened here?

02:22 - 52.697 Doesn't take an arborist to know there are branches.

02:22 - 55.776 Oh, yes, I was just somebody drove through.

02:22 - 56.044 Right.

02:22 - 00.047 So here notice was given and somebody did drive

02:23 - 03.074 through it just remedies weren't undertaken.

02:23 - 06.987 Yes. I was just giving that as one example of how the cost on municipalities

02:23 - 07.489 would go up.

02:23 - 11.292 Obviously the liability would and would increase and premiums

02:23 - 13.527 would go up and all that. That was just one example.

02:23 - 16.521 But the reason why I gave that example is because

02:23 - 20.467 that flies directly in the face of the legislative intent

02:23 - 24.538 and the objective of immunities, which is to limit liability and limit

02:23 - 28.700 costs and limit the taxation on the, on the, public treasury.

02:23 - 31.845 And so that was, Your Honor, I understand your question now.

02:23 - 35.607 That was just one example of how it would fly in the face of that objective.

02:23 - 37.384 Okay. I think we understand.

02:23 - 39.377 Thank you very much. Thank you. You all,

02:23 - 42.890 Mr. Menor.

02:23 - 45.025 Or will,

02:23 - 49.120 take a lunch recess until, 1230.

02:23 - 52.690 We're in recess until 1230.

02:23 - 57.962 The next case on today's list is another criminal case.

02:23 - 00.507 Commonwealth versus Blumer.

02:24 - 05.003 It poses questions of statutory construction and the constitutionality

02:24 - 08.840 of Pennsylvania's statute that limits sentencing appeals.

02:24 - 11.051 In this case, Mr.

02:24 - 14.512 Blumer was convicted of the summary offense of harassment.

02:24 - 16.490 The victim of the offense was Mr.

02:24 - 18.258 Bloomers neighbor.

02:24 - 22.062 Mr. bloomer pled guilty to the offense before the local magisterial district

02:24 - 23.764 judge

02:24 - 26.567 and was sentenced to pay a fine, along with court costs

02:24 - 29.560 totaling approximately $500.

02:24 - 32.272 From that decision, he exercised his right to appeal

02:24 - 36.034 from the Magisterial District Judge Court to the Court of Common Pleas.

02:24 - 39.780 After a trial in the Common Pleas Court, Mr.

02:24 - 44.142 Bloomer was convicted and sentenced to one and a half to three months in jail.

02:24 - 47.378 The maximum sentence allowed for a summary offense.

02:24 - 49.357 He argued that the.

02:24 - 53.351 Common Pleas judge abused his discretion in imposing

02:24 - 56.721 too harsh a sentence after the new trial.

02:24 - 00.167 After the judge rejected that argument.

02:25 - 03.194 Mr. bloomer appealed to the Superior Court

02:25 - 05.439 on an appeal.

02:25 - 08.042 The Superior Court rejected all of Mr.

02:25 - 12.346 Bloomers non sentencing claims and then concluded as a matter

02:25 - 15.840 of first impression, that the Sentencing Code precluded

02:25 - 18.719 the Superior Court from reviewing his claim,

02:25 - 21.655 challenging the discretionary aspects of his sentence

02:25 - 24.682 because he was convicted of only a summary offense.

02:25 - 28.462 The court reached this conclusion based on the plain language

02:25 - 30.464 of the Sentencing Code.

02:25 - 34.802 Under the code, the Superior Court may only entertain appeals arising from

02:25 - 39.597 the discretionary aspects of sentences imposed for felonies and misdemeanors.

02:25 - 43.410 The court noted that summary offenses were never mentioned

02:25 - 48.248 in this statutory section, so it was deprived of jurisdiction to entertain Mr.

02:25 - 50.875 Bloomers appeal. In the Superior Court's view.

02:25 - 53.687 The Supreme Court granted Mr.

02:25 - 58.116 Boomer's request for discretionary review limited to two issues.

02:25 - 01.819 First, did the superior Court error in holding

02:26 - 05.265 that it lacked jurisdiction to consider the discretionary aspects of Mr.

02:26 - 07.935 Blumer sentence under the Sentencing Code?

02:26 - 09.737 And second,

02:26 - 10.337 does Mr.

02:26 - 10.705 Bloomer

02:26 - 14.198 have a constitutional right to appeal the discretionary aspects of his sentence

02:26 - 18.970 under article five, section nine of Pennsylvania's Constitution?

02:26 - 23.016 In his brief to the Supreme Court, counsel for Mr.

02:26 - 27.078 Bloomer argues that the Superior Court misconstrued the sentencing statute

02:26 - 31.082 as depriving it of jurisdiction to entertain his challenge

02:26 - 34.352 to the sentence imposed on him for a summary offense.

02:26 - 39.500 His argument continues that such a limitation runs afoul of Pennsylvania's

02:26 - 43.494 constitutional right to appeal found in article five, section nine.

02:26 - 49.534 That section states in part there shall be a right of appeal in all cases.

02:26 - 52.079 In response,

02:26 - 55.106 the prosecution argues that this constitutional right

02:26 - 58.852 is not absolute for to allow the review that Mr.

02:26 - 03.347 Bloomer seeks would inundate the courts with merit less sentencing appeals.

02:27 - 07.261 The prosecution notes that there is a right to appeal

02:27 - 10.564 from a trial court to the appellate court, which Mr.

02:27 - 14.959 Bloomer exercised, but there is no right to appeal every issue

02:27 - 18.196 from a lower court to a higher court.

02:27 - 23.177 Importantly, the full Superior Court rejected such a constitutional challenge

02:27 - 26.504 to this provision of the Sentencing Code in 1991.

02:27 - 30.007 In the case of Commonwealth versus MacFarlane,

02:27 - 32.653 while the Supreme Court affirmed the decision

02:27 - 37.014 in MacFarlane in 1992, it did so without an opinion.

02:27 - 40.818 So the Superior Court's decision in MacFarlane

02:27 - 44.031 remains the controlling law in this area.

02:27 - 47.692 This case presents an issue for the first time for resolution

02:27 - 51.028 by the Supreme Court, again an issue of first impression.

02:27 - 54.665 Let's listen to the arguments in Commonwealth against bloomer.

02:27 - 58.903 Pertaining to.

02:28 - 02.050 Good afternoon.

02:28 - 03.051 Good afternoon.

02:28 - 07.712 In this case, appellant was convicted of the summary offense of harassment

02:28 - 11.349 and sentenced to 45 to 90 days in prison.

02:28 - 13.327 Following the trial court's

02:28 - 17.088 denial of his motion for reconsideration of that sentence.

02:28 - 20.234 He appealed to the Superior Court, challenging

02:28 - 23.261 the discretionary aspects of his sentence.

02:28 - 27.007 The Superior Court held that it lacked jurisdiction

02:28 - 31.745 to consider appellant's claim, because section 97

02:28 - 36.783 and 81 of the Sentencing Code provides for the filing of a petition

02:28 - 41.178 for allowance of appeal of the discretionary aspects of a sentence

02:28 - 45.283 only with respect to felonies or misdemeanors.

02:28 - 49.463 We granted discretionary review to consider two issues.

02:28 - 54.191 First, whether the Superior Court aired and concluding that under

02:28 - 59.597 section 9781, it lacked jurisdiction to consider appellant's challenge.

02:28 - 03.410 And second, if the Superior Court was correct,

02:29 - 07.038 whether appellant had a constitutional right to appeal

02:29 - 11.018 the discretionary aspects of his sentence under article

02:29 - 15.579 five, section nine of the Pennsylvania Constitution, please proceed.

02:29 - 19.860 And please the court, Leonard says, not for Mr.

02:29 - 20.628 Bloomer.

02:29 - 23.654 I'm here with my co-counsel, Alexander Ward.

02:29 - 29.536 Oh. I'll focus today of my argument

02:29 - 33.197 on the constitutional issue, which was not considered at all

02:29 - 36.367 by the Superior Court, but their suicide decision.

02:29 - 41.439 9781 has been around for almost 50 years.

02:29 - 45.719 But longevity doesn't make it constitutional

02:29 - 48.288 under the Pennsylvania Constitution.

02:29 - 49.023 Come up first.

02:29 - 50.958 Lee is a good example of that.

02:29 - 53.327 Very recent decision of this court.

02:29 - 56.797 Invalidating on cruel

02:29 - 02.736 punishment grounds under the Pennsylvania Constitution, the second degree murder

02:30 - 05.806 sentencing statute, which had been around for,

02:30 - 08.833 perhaps more than 50 years.

02:30 - 13.604 The text of this statute is plain and unambiguous.

02:30 - 17.375 I mean, Texas's constitutional provision, article five, section nine,

02:30 - 21.021 is plain and unambiguous.

02:30 - 24.048 It says there shall be a right of appeal.

02:30 - 27.351 And then it says from a court not of record to a court of record,

02:30 - 29.262 etc., etc..

02:30 - 32.790 And it also expressly limits the role of the legislature

02:30 - 36.193 at the end of the provision, besides providing the right to appeal

02:30 - 40.273 the legislature's role

02:30 - 43.944 in this whole scheme is the selection

02:30 - 48.982 of such court to be, as provided by law, and there shall be

02:30 - 52.843 other such other rights of appeal as may be provided by law.

02:30 - 58.992 There's no authority to constrict the absolute right to appeal.

02:30 - 02.620 And I use the word absolute because that's the word this court has used

02:31 - 07.501 more than once about four different decisions.

02:31 - 09.569 Talk about the absolute right to appeal.

02:31 - 14.141 And the issue today is not even one a first impression come off versus

02:31 - 17.778 stuck was a case where a defendant

02:31 - 20.814 wanted to appeal his summary conviction.

02:31 - 22.449 And sentence.

02:31 - 25.152 And the question was

02:31 - 28.155 could he claim ineffective assistance of counsel?

02:31 - 31.024 This court, in a unanimous opinion,

02:31 - 36.363 held, of course, he can claim ineffective assistance of counsel if he had counsel,

02:31 - 41.025 because that's the only way he had asked his counsel to appeal.

02:31 - 45.763 And he had a right at least three times in the decision.

02:31 - 49.700 He had a right under article five, section nine,

02:31 - 53.413 to appeal his summary

02:31 - 56.216 conviction and sentence,

02:31 - 59.753 and therefore he had a right, if he had counsel,

02:31 - 04.815 that counsel had applied effective assistance of counsel.

02:32 - 07.060 The Commonwealth makes

02:32 - 12.423 no argument on the text at all except to say, well,

02:32 - 16.660 it doesn't expressly say that the legislature can't limit

02:32 - 19.973 or eliminate appeals from summary

02:32 - 23.000 discretionary sentences.

02:32 - 25.345 That argument holds no weight.

02:32 - 28.405 Constitutional provisions are usually

02:32 - 31.518 a couple of sentences, sometimes one sentence.

02:32 - 33.386 They don't spell out every circumstance.

02:32 - 36.413 There might be 50 different circumstances under the law

02:32 - 40.351 where the standard is abuse of discretion or an appeal. And,

02:32 - 46.257 there's no list of 50 that would be provided under a constitutional provision.

02:32 - 50.060 And the fact that this one doesn't appear

02:32 - 52.906 as specifically,

02:32 - 56.776 delineated at the end of the provision, means nothing.

02:32 - 57.311 In fact,

02:32 - 59.179 if the Commonwealth was right, nobody would have the

02:32 - 03.174 right to appeal in any situation because article five, section nine

02:33 - 08.479 doesn't list any specific situation where there's a constitutional right to appeal.

02:33 - 10.790 Really,

02:33 - 14.218 since there is no textual argument this court has held

02:33 - 18.389 repeatedly, it's an absolute right to appeal under the under this section

02:33 - 21.768 and struck when to hold.

02:33 - 24.762 There's a right to appeal and a summary case.

02:33 - 29.533 Summary case a conviction means not just trial or pled guilty,

02:33 - 32.970 but your sentence could

02:33 - 36.106 counsel your your client has a right to two appeals.

02:33 - 36.783 Pardon me.

02:33 - 37.485 You're right.

02:33 - 40.511 Your client has a right to two appeals.

02:33 - 41.155 Correct.

02:33 - 44.524 If you're well, that's the way the constitutional provision

02:33 - 45.792 is written to provide it.

02:33 - 49.553 That way, it does not have a right as a right to go to an appellate court.

02:33 - 52.299 That's what's clear from the constitutional provision.

02:33 - 55.359 It does not have a right, for example, 9781

02:33 - 00.240 is constitutional to the extent that it provides that in section.

02:34 - 03.634 F you don't have another right to appeal to this court.

02:34 - 07.981 It could be limited to one right to appeal to an appellate court

02:34 - 11.008 after a court of record, common pleas court.

02:34 - 16.256 And that was the situation, by the way, and stuck in a first before district

02:34 - 20.918 justice stock went from an MG to an.

02:34 - 24.321 And the appeal was to the Court of Common Pleas.

02:34 - 26.766 And that's what he was denied in that case.

02:34 - 30.294 It wasn't the right to an appellate court review.

02:34 - 32.639 Then I stand corrected for

02:34 - 35.666 that, factual difference from what I just said,

02:34 - 40.671 but it has been interpreted to mean a right to appeal.

02:34 - 45.075 Appeal includes an administrative agency has a right to appeal

02:34 - 48.679 to an appellate court, not just the trial level court.

02:34 - 52.792 Well, it really can you think of any other situation

02:34 - 56.620 where the right to an appellate court from a court of Common Pleas is limited?

02:34 - 01.158 I mean, take, for example, a civil case that starts before an MDA.

02:35 - 06.306 That civil litigant has a right to an appeal to the Court of Common Pleas.

02:35 - 09.309 And from there, that civil litigant has the right

02:35 - 12.512 to appeal to the Superior Court. Yes.

02:35 - 15.839 I was just trying to think of another situation in which

02:35 - 18.985 this right to appeal to an appellate

02:35 - 22.188 court is limited, and I couldn't think of one either.

02:35 - 23.212 Could I?

02:35 - 26.650 I mean, this this is sui generis, really

02:35 - 29.920 what the legislature has done in 97, 81

02:35 - 33.891 and trying to limit a constitutional right to appeal.

02:35 - 37.761 And, really this

02:35 - 40.798 the text alone should be dispositive.

02:35 - 44.001 This court had yard a couple of years ago

02:35 - 46.880 that right to bail under the Pennsylvania Constitution.

02:35 - 50.383 The attorney general even had interpreted it in a way that favored

02:35 - 53.577 the defendant as a life sentence prisoner.

02:35 - 57.081 And this court said, we are not at liberty

02:35 - 01.585 to ignore the plain language of the text of the Constitution.

02:36 - 05.322 In that case, the bail provision, this that really should be the end

02:36 - 07.667 of deciding this case.

02:36 - 10.694 But I will go on, because

02:36 - 14.765 this is a case was also if there was any ambiguity at all,

02:36 - 20.471 there's a complete marriage between the text and the legislative history,

02:36 - 23.149 the legislative history, and

02:36 - 28.722 there's only a couple of pages set forth in the brief citations to what happened

02:36 - 31.749 at the convention that led to article five,

02:36 - 35.252 section nine, being being adopted.

02:36 - 38.655 The whole purpose from the people who initiated

02:36 - 43.603 the the the amending the Constitution was so that people,

02:36 - 46.697 in summary cases and zoning appeals, that was the initial

02:36 - 49.876 that was the initial,

02:36 - 54.371 momentum for having this and that.

02:36 - 59.843 The, whole thrust was to change what had been before,

02:37 - 04.758 which was one there was only a right to appeal under the Pennsylvania.

02:37 - 09.686 Constitution for felonious homicides as far as criminal cases.

02:37 - 12.766 But there was another constitutional provision

02:37 - 15.793 that said you could do summary appeals

02:37 - 18.738 if cause was shown.

02:37 - 23.143 And one of the main purposes of this provision was to take out that you had

02:37 - 29.072 to show courts to the appellate court before it would hear your case.

02:37 - 32.519 That was one of the main reasons for the adoption

02:37 - 35.579 of article five, section nine.

02:37 - 40.751 There's more legislative history than as far as the debates

02:37 - 43.930 that went on before this was adopted.

02:37 - 46.990 But it is exactly to prohibit

02:37 - 50.828 with 97, 81 does substantial question.

02:37 - 55.742 It's not much different from courts shown.

02:37 - 59.203 And this even goes further as far as 97, 81

02:38 - 03.507 provides really the exact same procedure

02:38 - 06.777 that litigants have to go to ask this court

02:38 - 11.014 to hear a case after it's been heard in the intermediate appellate court.

02:38 - 12.826 Counsel, can I can I interrupt you for a second?

02:38 - 16.629 I just I'm trying to avoid,

02:38 - 19.656 I guess the constitutional question if I can't avoid it, but

02:38 - 23.527 does the sentencing code even apply here?

02:38 - 26.964 With regard to these summary dispositions?

02:38 - 28.908 Summary charges?

02:38 - 31.611 Yes. Which section of the sentencing code dictates

02:38 - 34.638 the sentence that had to be applied here to the trial court

02:38 - 37.975 to pardon me, which section of the sentencing code

02:38 - 42.145 dictates the sentence that the trial court had to apply here?

02:38 - 45.892 You mean as far as a judge?

02:38 - 49.762 As far as minimum the maximum the the the particular crime

02:38 - 51.130 at issue or offense here at issue?

02:38 - 54.334 Well, there's a statute, section 1105 of title

02:38 - 57.461 18, it says the maximum sentence shall be I'm looking at the state.

02:38 - 01.098 I'm talking about the sentencing code though, so I'm I'm about to okay.

02:39 - 02.475 That okay.

02:39 - 02.676 Okay.

02:39 - 07.471 So 9721 provides all the factors a judge must consider at sentencing.

02:39 - 11.184 9722 provides all the factors

02:39 - 14.411 the judge must consider for an order of probation.

02:39 - 19.149 And you're saying that that these all apply to summary case summary cases.

02:39 - 21.661 They're not excluded at all.

02:39 - 24.688 They're not excluded in any of the provisions.

02:39 - 29.569 So 97, 21, 97, 22 you can go to partial confinement.

02:39 - 31.838 You get a total confinement.

02:39 - 34.865 Every provision is generally

02:39 - 38.144 and of course it has to be that way

02:39 - 41.171 would be an absurd, unreasonable situation

02:39 - 46.310 if judges were permitted to send people to jail under any circumstance,

02:39 - 49.822 summary cases or otherwise.

02:39 - 51.991 What was what was the charge here?

02:39 - 53.459 Harassment. Okay.

02:39 - 56.129 And you said 9720

02:39 - 58.865 was was the sentencing code one of the sentencing code provisions?

02:39 - 02.936 You said what I'm saying that's basically 9721 is a general one.

02:40 - 03.970 First.

02:40 - 07.698 Then there's 9722, which talks about probation.

02:40 - 10.577 There's 97.

02:40 - 13.479 And remember the numbers wrong.

02:40 - 16.974 But total confinement, partial confinement.

02:40 - 20.386 And the judge for the opinion this case. Yes.

02:40 - 23.380 You know, until this case, until the court

02:40 - 26.450 was funding and bloomer

02:40 - 29.162 decided that a judge doesn't

02:40 - 32.966 have to give any reasons for a sentence because it's doesn't matter.

02:40 - 34.667 There's no appeal.

02:40 - 36.669 The discretion of just

02:40 - 38.972 a judge abused discretion.

02:40 - 41.999 It will is the bottom line here.

02:40 - 45.502 If there's no protection

02:40 - 48.905 this judge because it was pre bloomer in the lower court

02:40 - 50.250 wrote an

02:40 - 53.810 opinion given his reasons talking about the sentencing code,

02:40 - 58.649 why I considered this, why I considered that and why I in the end

02:40 - 03.220 here with us under 9781 big

02:41 - 06.766 the word summary offense is not included.

02:41 - 08.868 That's correct.

02:41 - 13.030 Now, why is it not to be deemed at the General Assembly

02:41 - 17.110 within their right, excluded it just as well as the fact

02:41 - 20.913 that a summary offense doesn't have a right to a jury trial

02:41 - 23.916 because it's considered a petty offense.

02:41 - 25.918 So that's a constitutional

02:41 - 28.788 a they do not have a constitutional right to a jury.

02:41 - 29.456 Correct.

02:41 - 32.482 If we're denying them a constitutional right to a jury,

02:41 - 36.295 why can't the General Assembly deny them a right to an appeal pursuant

02:41 - 41.058 to 9781 B because of article five, section nine, you have a right to it.

02:41 - 45.862 You have a constitutional right to appeal, and that means decision on the merits.

02:41 - 49.599 The trial in Philadelphia would be a trial de novo to the Court of Common Pleas.

02:41 - 51.040 That's the right to appeal

02:41 - 53.047 first.

02:41 - 56.073 Right or.

02:41 - 00.153 In Philadelphia to be a right to appeal de novo.

02:42 - 03.180 And then there's a right to appeal to the appellate court.

02:42 - 05.625 That's

02:42 - 09.119 just like I say this, this statute, there's no

02:42 - 12.999 the legislature wasn't given the power to limit that.

02:42 - 17.327 People can't in some cases have a right to appeal.

02:42 - 19.739 It's just not been given to the legislature.

02:42 - 21.140 And this court held the stock.

02:42 - 24.167 I mean, I'm not making a real novel argument here.

02:42 - 27.246 And like I said, the legislative history

02:42 - 30.273 supports that

02:42 - 34.854 litigants don't have to show cause to be able

02:42 - 39.449 to appeal a case to the Superior Court or the Commonwealth Court.

02:42 - 42.986 If the legislature can do that here,

02:42 - 47.467 they can do it with a sentencing statute

02:42 - 50.861 that reaches beyond summary cases

02:42 - 55.365 and just says abuse of discretion can't be appealed.

02:42 - 59.245 And the sentencing discretion

02:42 - 02.706 can't be it can't be appealed unless you show substantial question.

02:43 - 05.184 There's no limiting principle.

02:43 - 08.211 They could they could have a statute

02:43 - 12.048 that says, any time, just an abuse of discretion, claim,

02:43 - 16.553 for example, continuance in a case,

02:43 - 21.324 whether evidence was properly admitted,

02:43 - 24.270 a litigant cannot appeal

02:43 - 27.297 unless they show this essential question.

02:43 - 32.178 There's not a limiting principle for what the legislature has done here.

02:43 - 35.205 And as I said, the legislative history, if there's any,

02:43 - 38.742 room for ambiguity

02:43 - 42.479 and none was raised by the Commonwealth,

02:43 - 45.558 was there's any room for ambiguity.

02:43 - 48.852 The legislative history is clear as day.

02:43 - 52.422 The only argument they make is,

02:43 - 55.568 well, McFarland case in Superior court.

02:43 - 57.103 Bunk

02:43 - 57.571 five.

02:43 - 00.597 The three decision in 1989.

02:44 - 04.277 The McFarland decision said two things.

02:44 - 09.372 One, you could have reasonable regulations of appeals to legislature.

02:44 - 11.050 That's true.

02:44 - 14.077 You can regulate the manner of appeal.

02:44 - 19.182 You cannot say you cannot limit review of the merits.

02:44 - 22.395 So the one case that Phahlane relied

02:44 - 25.422 on, the case that they quote for three, four pages in a brief,

02:44 - 31.070 the one case the McFarland relied on was the 1879 decision of this court.

02:44 - 32.596 Commonwealth versus Sayre

02:44 - 34.640 and the

02:44 - 39.202 issue and there was was a felonious homicide first degree murder case.

02:44 - 43.073 And I think he was sentenced to be hanged at the time.

02:44 - 47.711 And the issue at the time was a legislature

02:44 - 50.690 said you must appeal

02:44 - 53.717 from your judgment a sentence within 20 days.

02:44 - 56.896 And this court held

02:44 - 02.225 that is a reasonable regulation when the manner of taking an appeal

02:45 - 05.729 it does not, unlike 97, 81,

02:45 - 09.266 limit the merits at all.

02:45 - 10.610 It's the analog.

02:45 - 14.304 Those are 30 day rule now, the court said, and Sayre,

02:45 - 18.117 a litigant, doesn't have a right to appeal whenever he feels like he might be

02:45 - 21.254 on the gallows, about to be hanged and says, oh, I'm following an appeal.

02:45 - 22.955 Don't hang me.

02:45 - 25.658 That's a reasonable regulation.

02:45 - 29.386 Rule three oh two of the Pennsylvania Rules of Procedure.

02:45 - 31.998 You waive issues

02:45 - 34.991 if you don't preserve them in the lower court.

02:45 - 36.570 That's reasonable.

02:45 - 39.596 Litigant doesn't have the right to raise

02:45 - 42.642 any issue in any manner.

02:45 - 44.777 But article five, section

02:45 - 48.271 nine is the converse of rule 302.

02:45 - 53.143 If you preserve an issue, you have a right to review on the merits

02:45 - 56.980 that's constitutionally guaranteed.

02:45 - 00.884 The only issue,

02:46 - 05.021 that is raised by the Commonwealth

02:46 - 08.234 is actually a policy one

02:46 - 11.261 would like to just that they argue.

02:46 - 14.698 And this is Partizan McFarland decision from the Superior court.

02:46 - 17.176 Bunk. The majority,

02:46 - 20.012 if we allow this to clog

02:46 - 23.039 the courts and,

02:46 - 26.052 there are several problems with that argument.

02:46 - 30.113 First, policy cannot override a constitutional provision.

02:46 - 33.559 And this court has held that many times,

02:46 - 37.830 even in cases where, the consequence being faithful

02:46 - 41.758 to the Constitution might produce some danger to the community.

02:46 - 42.435 Cases like.

02:46 - 42.736 Come on.

02:46 - 47.063 First is Alexander, counselor to sex policy, cannot trump

02:46 - 50.343 the rights guaranteed under the Constitution.

02:46 - 51.367 That's first.

02:46 - 55.171 Second, it's totally contrary, as I said before,

02:46 - 00.210 to the legislative history of the case, because while this is being debated,

02:47 - 02.521 some of the legislature said, wait a minute,

02:47 - 05.124 this is going to clog our courts.

02:47 - 08.594 And the ones who advocated for article five, section

02:47 - 12.698 nine said, even if that happens, we don't think it'll happen.

02:47 - 16.159 But even if that happens, we're talking about fundamental rights here.

02:47 - 20.106 And it passed with only two dissenting votes in the end.

02:47 - 23.009 So the whole business of trying to amend this, because it'll clog

02:47 - 26.903 the courts, that was already considered when this was promulgated

02:47 - 31.484 empirically, this will not flood the courts either.

02:47 - 34.944 There's no support for flooding the courts.

02:47 - 37.690 And that's for two fundamental reasons.

02:47 - 39.091 I think.

02:47 - 41.785 One is that until bloomer

02:47 - 44.296 Louis County

02:47 - 47.666 decided that you cannot appeal the discretionary aspects

02:47 - 51.127 of the summary appeal, there weren't that many appeals.

02:47 - 56.409 We know the court won't be inundated

02:47 - 59.436 if it's recognized that there's a constitutional right to appeal,

02:47 - 02.639 because we know it up until bloomer this case.

02:48 - 06.252 The other reason is when we're talking about so many cases

02:48 - 09.779 in particular, as far as appealing a summary case,

02:48 - 13.950 most tenants aren't going to appeal

02:48 - 16.986 because of the cost involved.

02:48 - 20.123 They got a very short jail sentence or a fine.

02:48 - 23.860 The cost of pursuing the appeal is a big deterrent,

02:48 - 27.106 and also if there were to have some chance of winning a lawyer

02:48 - 29.208 and that's a big deterrent. Cost lives.

02:48 - 32.202 So it's just not going to happen.

02:48 - 35.371 And I want to comment on on one thing further

02:48 - 38.541 about, judicial economy.

02:48 - 43.646 In the context of this situation right now,

02:48 - 45.525 judges have to

02:48 - 48.551 go through several factors to decide

02:48 - 51.497 whether there's a substantial question,

02:48 - 54.524 a whole free analysis

02:48 - 56.769 of the case to decide

02:48 - 59.796 whether and it's opinion.

02:49 - 03.233 It wants to allow the case to proceed to the merits.

02:49 - 06.970 And again, article five, section nine is written totally discretionary,

02:49 - 11.975 even if this is a central question, it says the court may hear the appeal.

02:49 - 14.286 It's not even required to.

02:49 - 18.157 But you have to go through all substantial factors and,

02:49 - 21.184 writing opinion, considering the factors

02:49 - 24.521 and again decide whether it has any merit.

02:49 - 28.300 That is, as some judges have expressed

02:49 - 32.662 before fleeing a dissenting opinion, and they've fallen

02:49 - 36.132 or wasting judicial time.

02:49 - 39.011 They get to the holding.

02:49 - 40.713 It doesn't have any merit.

02:49 - 44.641 Rather than go through this rigamarole, and I want to refer to one one case

02:49 - 48.521 just as an example of this, what the system produces,

02:49 - 50.046 and that's called First circle,

02:49 - 54.417 a decision from the Superior Court 2015,

02:49 - 58.721 where Justice Wecht and a judge authored the opinion.

02:50 - 02.868 There's about 2 or 3 pages

02:50 - 05.929 dealing with the issue of whether the substantial question,

02:50 - 10.109 in other words, seriously address, just like the legislature said, to

02:50 - 14.871 go through the whole rigamarole before deciding the decision in the end was

02:50 - 18.942 this is really incredibly weak argument.

02:50 - 22.278 It doesn't even merit our merit review

02:50 - 27.116 that could have been arrived, that if you were not bound by this statute,

02:50 - 31.187 that could have been arrived at in a paragraph based on past precedent.

02:50 - 35.558 And in that case, the other reason I mentioned circle

02:50 - 38.571 is because Judge Strasburg

02:50 - 41.598 wrote a long concurring opinion

02:50 - 44.710 and, he stressed

02:50 - 49.038 how it is unconstitutional under article five, section nine,

02:50 - 54.477 for a court to refuse to entertain an appeal on the merits.

02:50 - 57.790 This issue that's properly served.

02:50 - 02.652 Counsel, can I and you you you responded by saying

02:51 - 05.855 I'm sympathetic to it.

02:51 - 08.567 Judge Strasburg has said that I'm bound

02:51 - 11.537 by precedent and I'm bound by the statute.

02:51 - 14.440 There wasn't a constitutional issue raised.

02:51 - 17.142 Council, what are you what do you

02:51 - 20.803 what is your client asking for in terms of a result?

02:51 - 25.475 So in this case, because the client, your client's charge

02:51 - 28.621 is completely excluded from 97, 81.

02:51 - 29.089 Pardon me?

02:51 - 32.248 Your client's charge is completely excluded from 9781.

02:51 - 32.659 All right.

02:51 - 36.962 So so what does your client want in terms of

02:51 - 43.226 he wants it declared unconstitutional 9781 because he has a right to appeal.

02:51 - 46.572 Not well, but he's he's excluded from it.

02:51 - 49.174 That's the statute. Statute is unconstitutional.

02:51 - 52.201 So since the statutes unconstitutional, the only question is

02:51 - 55.214 what is his relief on remand?

02:51 - 56.582 Not that article one.

02:51 - 00.819 Article five, section nine, the right to appeal from a court of non

02:52 - 02.054 record to a quarter record.

02:52 - 04.290 Why is that not sufficient?

02:52 - 05.158 That's that.

02:52 - 08.584 That's what the Constitution permits based upon summary offenses.

02:52 - 13.332 And it restricts it under 9781 to not include summary offenses.

02:52 - 17.536 So I'm I'm confused that where you think you have this continual constitutional

02:52 - 20.539 right when the constitutional right provided by five

02:52 - 23.566 nine is your right to appeal the Court of Common Pleas.

02:52 - 27.670 Well, first of all, that would require,

02:52 - 34.644 I don't think that's what the text provides given

02:52 - 38.948 all of what it says about the right to appeal,

02:52 - 42.185 does it plainly, palpably violate the Constitution?

02:52 - 46.823 If the right to appeal is permitted in summary cases,

02:52 - 51.027 by going from a court of non record to a quarter record, aka

02:52 - 54.740 you got your constitutional rights and the government the General Assembly

02:52 - 58.444 has the right to determine what authority we judges have.

02:52 - 01.471 And they did that through 9781.

02:53 - 06.752 I don't believe they can exclude summary discretionary sentences.

02:53 - 11.056 I mean, how it plainly, palpably violates the Constitution when we have embedded

02:53 - 12.224 constitutional rights in it.

02:53 - 15.485 You may not like them, but that's what the Constitution permits.

02:53 - 18.464 Okay, that this is what I'll say.

02:53 - 21.491 The error here, the Earth law that was committed

02:53 - 25.037 was by the Common Pleas Court.

02:53 - 26.405 But you still didn't answer my question.

02:53 - 28.607 No, I don't I'm trying to answer your question.

02:53 - 31.577 It abused its discretion in sentencing.

02:53 - 32.601 Is the claim.

02:53 - 36.048 And since then, abuse its discretion.

02:53 - 39.017 Use its discretion by following the statute.

02:53 - 42.478 No. We make allegations this the statute?

02:53 - 47.183 No. The statute permits no appeal at all from the Common Pleas Court judge

02:53 - 48.194 in other words,

02:53 - 51.220 if there's no right to appeal for the Common Pleas Court judge state,

02:53 - 52.031 that's fine.

02:53 - 56.135 If there's no right to appeal, that means and this would be to me,

02:53 - 00.506 a distortion of the legislative history and the language that would mean

02:54 - 03.533 a judge in summary, case in a country's court

02:54 - 06.445 could abuse discretion at will.

02:54 - 10.215 Does not have to give any reasons because you couldn't

02:54 - 13.242 appeal to a superior court of final review.

02:54 - 15.788 That's similar to saying that you lose here.

02:54 - 16.456 What are we doing?

02:54 - 19.458 We're violating your rights because we disagree with you.

02:54 - 20.793 I think the differences

02:54 - 22.728 I think the difference is, and I'm not expressing it

02:54 - 24.620 well, I think the difference is

02:54 - 28.066 an appellate court

02:54 - 30.569 and the summary case situation

02:54 - 33.596 is not functioning as an appellate court.

02:54 - 35.507 It's the Novo.

02:54 - 39.969 So because it's de novo, it's a completely new situation.

02:54 - 45.341 The first appeal is from the Common Pleas Court decision.

02:54 - 48.520 The decision of the district

02:54 - 51.547 justice is wiped out by trial de novo.

02:54 - 54.960 That's one of the reasons that rights are sometimes limited

02:54 - 00.799 with the district justice, because you are entitled to a trial

02:55 - 03.826 with more rights and common pleas court,

02:55 - 07.296 and that is a decision.

02:55 - 10.533 The first level of appeal from the Common Pleas Court

02:55 - 15.104 is the Superior Court of Pennsylvania, and that's what can't be eliminated.

02:55 - 18.851 If I understand counsel in that context, your reference

02:55 - 21.854 in the second clause of the constitutional article,

02:55 - 24.881 and there shall also be a right of appeal from a court of record,

02:55 - 28.351 blah, blah, blah, to a court of record or to an appellate court.

02:55 - 31.888 Isn't that what you're referencing in response?

02:55 - 34.824 Yes. I'm also referencing.

02:55 - 36.936 I'm also

02:55 - 40.672 referencing the holding of this court as far as article five, section

02:55 - 45.134 nine, in the stock case, it's the right of appeal.

02:55 - 48.347 And in that case, I know that you're actually you're

02:55 - 50.649 you're you're mixing apples and oranges here.

02:55 - 53.352 This is the discussion we had early on.

02:55 - 56.379 I happen to agree with your argument, but, I mean,

02:55 - 59.191 you're you're now talking about the first sentence.

02:55 - 00.692 There shall be a right of appeal

02:56 - 04.720 in all cases to a court of record from a court, not of record.

02:56 - 08.057 That's your client's first right of appeal.

02:56 - 10.636 It doesn't matter that it's a trial de novo.

02:56 - 13.305 Constitutionally, your client is entitled.

02:56 - 16.666 That is called a right of appeal in the Constitution,

02:56 - 20.369 from the magistrate judge to the Court of Common Pleas.

02:56 - 24.283 He's also entitled, under the second sentence, a

02:56 - 28.711 right of appeal from that court of record to an appellate court.

02:56 - 30.956 Yes. I mean, and that was my first question.

02:56 - 34.750 I mean, yes, not only gets two appeals, they said exactly.

02:56 - 38.997 They're different, but they're appeals according to the Constitution.

02:56 - 42.034 And I ask you, the question, is there any other circumstance

02:56 - 45.261 that you could think of where we limit the right,

02:56 - 50.166 of an appeal from, the court of Common Pleas,

02:56 - 54.737 like, and, for example, magistrate, district judge hears civil cases,

02:56 - 56.549 that civil

02:56 - 00.710 litigant has a right to an appeal to the Court of Common Pleas.

02:57 - 04.222 There's no question that that civil litigant has a right

02:57 - 09.018 to an appeal to the Superior Court from that common Pleas court.

02:57 - 10.429 Yes, correct.

02:57 - 11.097 Sui generis.

02:57 - 15.867 There's no other situation that I know of that was that was my early question,

02:57 - 18.894 because I think it's easy to say you get one appeal.

02:57 - 23.041 Well, your client had one appeal from from the

02:57 - 27.245 from the magistrate district judge to the, Court of Common Pleas.

02:57 - 29.214 But that's not what the Constitution says.

02:57 - 33.075 And that institution says there is another right of appeal.

02:57 - 37.480 And I would say that that would be an excessively literal

02:57 - 41.050 interpretation of the constitutional provision,

02:57 - 44.920 which, again, if if it was ambiguous, all the legislative history

02:57 - 48.424 is against such an interpretation, because

02:57 - 52.528 giving somebody a trial de novo

02:57 - 56.932 means it's a brand new situation.

02:57 - 00.912 It's not an appeal in the traditional sense.

02:58 - 03.081 That's not what the Constitution says.

02:58 - 05.083 The Constitution calls.

02:58 - 08.878 What happens in that circumstance a right of appeal.

02:58 - 15.894 I would say that if that was the holding of this court, that the defendant loses

02:58 - 20.556 because he had a right to appeal, I think you're I think you're missing.

02:58 - 22.901 I think Justice Donoghue is trying to help you. I'm trying to.

02:58 - 25.237 There's two, there's two, there's two. Rights of opinion.

02:58 - 26.738 I really am trying to help you.

02:58 - 29.799 I mean, I think you doing have I.

02:58 - 31.076 I know you're helping me.

02:58 - 32.511 I'm just trying to.

02:58 - 34.246 She's giving me the argument that.

02:58 - 36.548 I mean, she's answering Justice Socrates question.

02:58 - 39.575 No, frankly, I mean, you know, you're

02:58 - 42.587 my first thought was, well, he had a right to an appeal

02:58 - 46.482 to the Court of Common Pleas, but that's not what the Constitution says.

02:58 - 47.326 I know that

02:58 - 51.387 because if he then has the right of an appeal from that to an appellate court.

02:58 - 51.798 Okay.

02:58 - 55.534 So if we let's say you literally interpret

02:58 - 59.528 trying now to use your help, go another step.

02:59 - 03.975 Let's say you have a right to appeal

02:59 - 07.002 from magistrate to the Common Pleas court,

02:59 - 11.207 and then you had no right to appeal further period.

02:59 - 14.219 In other words, that would be the interpretation of no right.

02:59 - 16.054 No, no, that's not what Justice Scalia was saying.

02:59 - 17.723 It was the opposite.

02:59 - 18.924 She's arguing.

02:59 - 20.926 I'm saying exactly the opposite.

02:59 - 23.862 Except not in article, not section nine.

02:59 - 28.924 It says the selection of such court to be as provided by law.

02:59 - 33.929 And the law that restricts us summary appeal is 9781

02:59 - 36.608 because that too is in the statute.

02:59 - 39.211 And we had to read the statute together.

02:59 - 40.946 We just can't separate it.

02:59 - 46.108 It has to be read the languages the General Assembly gets to permit,

02:59 - 48.386 which works.

02:59 - 52.248 Individuals have a right to appeal, quote unquote, as provided by law.

02:59 - 55.351 But Justice Donahue's reading from the Constitution,

02:59 - 58.721 an appeal to to an appellate court,

02:59 - 03.659 the selection of such court to be provided by law.

03:00 - 06.271 So you call it a superior court.

03:00 - 09.298 They can call it the Commonwealth Court, they can call it Veterans Court.

03:00 - 13.736 They can't or they can restrict the right to appeal

03:00 - 17.473 after its right to appeal and look for the Common Pleas.

03:00 - 21.243 So this would be an unreasonable interpretation of the Constitution

03:00 - 24.480 because that would mean

03:00 - 27.125 that anybody convicted in common.

03:00 - 30.452 Pleas court this no, no, no, thank you.

03:00 - 33.732 If you're charged in the Common Pleas Court, you have a right to appeal.

03:00 - 36.034 If you're charged, there's some record, the majesty.

03:00 - 37.302 That's the whole issue here.

03:00 - 38.603 I know what the issue is.

03:00 - 40.639 You have a right to appeal it.

03:00 - 43.666 What part of it we just disagree is to the reading of the

03:00 - 45.744 of the constitutional provision.

03:00 - 46.768 If you have a right,

03:00 - 49.281 if there was

03:00 - 52.541 no right and I hope I'm paraphrasing correctly,

03:00 - 56.712 if you're right under article five, section nine is completely fulfilled

03:00 - 00.292 by going to the right of appeal

03:01 - 03.385 from the District court de novo to the Common Pleas Court.

03:01 - 07.332 What I would do interpretation of the Constitution.

03:01 - 11.594 Because what that would mean is, when you had that trial de novo,

03:01 - 15.064 a judge could do whatever he or she won,

03:01 - 17.809 could violate the law.

03:01 - 21.604 It abused discretion and there would be no recourse.

03:01 - 25.283 That can't be the meaning as far as this court.

03:01 - 28.820 No, he says, with statutes, it can't be an absurd or unreasonable thing.

03:01 - 31.356 And that would be totally unreasonable.

03:01 - 34.383 Probably this policy decision by the general Assembly

03:01 - 38.697 to view summary offenses as not being that I may disagree with it.

03:01 - 42.625 Maybe the General Assembly doesn't believe 90 days in jail is that extreme,

03:01 - 43.835 such that it doesn't.

03:01 - 46.471 Your constitutional right doesn't attach, I don't know.

03:01 - 48.440 That's the policy at the General Assembly.

03:01 - 51.376 Oh, I know it's that's what 9781 exclude

03:01 - 54.546 summaries and by the operation of law

03:01 - 58.140 it cannot be applied pursuant to article five, section nine.

03:01 - 00.376 And I not a fair reading.

03:02 - 03.722 It's a

03:02 - 06.191 no. That's a that may be a fair reading.

03:02 - 09.961 The statute I have you know I leave that's my brief is the Constitution

03:02 - 12.988 I'm reading by applying the statute to the Constitution.

03:02 - 14.132 Applying statute,

03:02 - 18.536 the Constitution would mean if the legislature thought summary cases

03:02 - 22.698 may go to jail, then I may be disposed to the intent

03:02 - 26.735 that people go to jail for 90 days is not that important.

03:02 - 30.348 So we're not going to give them the right when you have to spend time in jail.

03:02 - 33.409 I know that, I know that very well. I agree.

03:02 - 36.388 I also can I go back to my question about what

03:02 - 39.415 you're asking for.

03:02 - 42.060 So you're saying

03:02 - 45.087 you just wants to wipe 9781 off the map,

03:02 - 49.367 but your client's charge is not within 9781.

03:02 - 50.835 Why do we have to touch that?

03:02 - 55.030 Why can't we just say your client has a constitutional right to an appeal?

03:02 - 01.313 97, 81, doesn't address your client's situation.

03:03 - 03.214 We'll leave 97 or only one of the books.

03:03 - 05.417 We'll just say you have a constitutional right to an appeal.

03:03 - 06.285 Take your appeal.

03:03 - 08.486 Why do we have to strike? Page 781?

03:03 - 09.721 You could say that

03:03 - 12.748 the question would be what would be the relief for this defendant?

03:03 - 15.784 The relief is you get the relief as you get an appeal to the Superior Court.

03:03 - 20.289 The relief would be he's entitled to a decision in the Superior Court.

03:03 - 22.367 Right. That's what the remand should be here.

03:03 - 22.969 Well, that's what I.

03:03 - 24.602 But then you can leave 97.

03:03 - 26.871 Well, that's what I'm trying to understand, is we don't.

03:03 - 27.872 Do you believe that?

03:03 - 31.367 We must if we agree with you, do you believe that we must

03:03 - 33.979 strike 97, 81?

03:03 - 35.380 I don't think you must.

03:03 - 39.108 But logically, it probably would be

03:03 - 42.454 the best course to take.

03:03 - 46.515 Because if you leave 97, 81 intact

03:03 - 50.419 and my client with a summary case

03:03 - 53.798 remand order,

03:03 - 58.660 article five, section nine, you must decide the merits of this summary.

03:03 - 01.964 Helen's discretionary aspects and sentence.

03:04 - 06.902 Then summary litigants will have more rights

03:04 - 11.707 as far as an appeal than those in felonies and misdemeanors.

03:04 - 13.351 And the court could do that.

03:04 - 16.187 If you don't want to touch 9781.

03:04 - 18.623 And I think logically,

03:04 - 23.318 the best course is to consider 9781

03:04 - 27.423 on its merits, because otherwise, as I said,

03:04 - 31.236 the only relief under the Constitution should be remain

03:04 - 35.197 for the merits of my client's appeal, not whether it's a substantial question,

03:04 - 38.576 not a pre merits decision before the merits

03:04 - 41.703 under article five, section nine, but a decision on the merits.

03:04 - 45.083 But that but you're not asking for us to shoehorn

03:04 - 48.110 your client into 9781.

03:04 - 53.148 You're just saying my client has the right to appeal to the Superior Court, period.

03:04 - 58.487 It was a superior court to shoehorn this case into 97, 81.

03:04 - 03.101 So there is no argument in the brief that statutory construction

03:05 - 08.464 saying you can shoehorn summary cases into 97, 81.

03:05 - 11.609 And that's referring to several principles

03:05 - 14.636 of statutory discretion.

03:05 - 17.449 Statutory construction.

03:05 - 21.176 However, I recognize there's a strong argument the other side there.

03:05 - 24.980 As far as 97, 81, it doesn't include the words summary appeals.

03:05 - 27.058 And it talks about the guidelines.

03:05 - 30.085 So the statutory construction issue in this case

03:05 - 33.431 how I could go through. Very sorry.

03:05 - 35.400 We get it.

03:05 - 37.402 All right. We get it and we got it.

03:05 - 38.270 Thank you, Mr. Song.

03:05 - 40.805 Thank you. Appreciate it.

03:05 - 43.832 You're from the Commonwealth attorney Chesler.

03:05 - 47.312 Pleased the court.

03:05 - 48.280 I'm Lisa transfer

03:05 - 51.874 from the Northampton County DA's office representing the Commonwealth.

03:05 - 52.952 Could you speak up a little?

03:05 - 55.220 Counsel? Are like.

03:05 - 57.288 Yeah. There you go. Can you hear me? Better now?

03:05 - 58.413 Yes.

03:06 - 01.060 As much

03:06 - 04.262 as Justice Docket, these arguments favor my side.

03:06 - 08.524 I, in candor, must say that the Commonwealth agrees

03:06 - 12.937 that under article five, section nine, all defendants,

03:06 - 17.509 including those in summary cases, have a constitutional right

03:06 - 20.969 to appeal the judgment, which includes the sentence.

03:06 - 24.840 The Superior Court did entertain his appeal.

03:06 - 27.118 They decided his evidentiary question.

03:06 - 30.088 They decided his sufficiency of the evidence question.

03:06 - 33.649 They just said, we can't hear your pure

03:06 - 37.853 discretionary aspects of sentence question.

03:06 - 42.391 So you have to look at what the Constitution

03:06 - 46.728 intended to create when it created this

03:06 - 50.608 provision, saying you have a right of appeal.

03:06 - 53.835 There is a huge distinction

03:06 - 58.383 between appeals for legal error and appeals

03:06 - 04.947 that are purely about the way a sentencing judge weighed permissible.

03:07 - 08.050 What you're talking about, this purity concept, I mean, most

03:07 - 11.920 most appeals are not that he exceeded the statutory max,

03:07 - 14.899 but some some species of abuse of discretion.

03:07 - 17.926 So I'm not familiar with this whole,

03:07 - 21.363 area of purity, of, purity of whatever,

03:07 - 24.342 the vast majority of cases

03:07 - 27.836 are going to challenge some aspect of discretion.

03:07 - 29.480 Correct.

03:07 - 32.741 But so if you're right about your argument here,

03:07 - 34.987 as I'm flipping through

03:07 - 38.013 your briefs, I'm wondering if you're right,

03:07 - 41.383 what would stop the General Assembly from tomorrow

03:07 - 44.462 from just eliminating, appeals

03:07 - 47.489 and discretionary sentence for anything?

03:07 - 49.367 Well, at the time

03:07 - 53.328 that the Constitution was passed, this provision was passed.

03:07 - 56.608 The it was common

03:07 - 59.844 for courts to hear appeals based on abuse of discretion,

03:07 - 04.273 but they defined abuse of discretion in terms of a legal error

03:08 - 08.610 and legal sentence, jurisdictional defect,

03:08 - 11.656 violation of the rules of evidence,

03:08 - 14.192 insufficient due process claims.

03:08 - 17.219 Insufficient evidence. Judicial bias.

03:08 - 20.322 Federal constitutional violations.

03:08 - 22.100 Equal protection.

03:08 - 27.162 So it it was not commonplace at that time

03:08 - 32.310 for a court of appeals to say there's no legal error.

03:08 - 35.937 There's the sentence was not infected by any legal error.

03:08 - 41.486 But we are going to as an appellate court, we're going to look at the sentencing

03:08 - 44.780 factors that the court considered, and we're going to re weigh them.

03:08 - 50.628 We're going to say, well, he didn't give enough, importance to this factor.

03:08 - 53.598 He he gave too much importance to that factor.

03:08 - 56.434 That is something that historically had not happened

03:08 - 01.897 even when a court of appeals was saying that the sentence was excessive.

03:09 - 06.244 They usually come on the first issue, as did superior.

03:09 - 11.683 Court, erred in holding that it lacked jurisdiction to consider the discretionary

03:09 - 14.752 aspects of petitioner's sentence under

03:09 - 17.779 not 9781 B of the sentencing Code.

03:09 - 19.657 What's your answer? What's the Commonwealth position?

03:09 - 22.994 No, they did not air the,

03:09 - 25.997 when they first passed the constitutional provision.

03:09 - 29.925 This whole question of allowing appeals that were strictly about

03:09 - 33.638 how a judge weighed

03:09 - 36.965 factors in a otherwise lawful sentence

03:09 - 39.977 that wasn't part of the legal landscape,

03:09 - 43.147 it wasn't stated in the constitutional provision

03:09 - 46.842 that they were going to suddenly open up a whole new

03:09 - 50.712 class of appeals, where they were going to re weigh

03:09 - 55.426 what a sentencing judge had done in terms of the factors of possession

03:09 - 59.855 with question two, does the petitioner have a constitutional right to appeal

03:10 - 02.867 the discretionary aspect of the sentence

03:10 - 05.894 under article five, section nine?

03:10 - 07.639 As long as you

03:10 - 10.808 define abuse of discretion as what they were looking at

03:10 - 14.312 when they passed article five, section nine, which was some violation

03:10 - 18.340 of some legal principle, not just simply re weighing

03:10 - 21.119 how much weight the judge gave to the sentence.

03:10 - 22.054 Not at all.

03:10 - 27.125 I don't I that that doesn't make, a right to appeal sentence or you have a problem

03:10 - 29.885 with the discretionary aspects of sentence. I'm not sure.

03:10 - 31.764 Where does the.

03:10 - 34.790 Constitution drive a distinction that you're drawing?

03:10 - 38.593 It didn't say it in so many words, but it didn't address the issue at all.

03:10 - 41.897 Well, I did say you have a right of appeal,

03:10 - 47.044 but in judge proper diagnosis descent in McFarland, he pointed out

03:10 - 51.940 that at the Constitutional Convention, the concern was about legal

03:10 - 56.087 errors and insufficient evidence that that was the concern.

03:10 - 57.688 It wasn't.

03:10 - 59.824 We think that people who have,

03:10 - 04.186 had a sentence where the judge weighed permissible factors

03:11 - 08.199 should be allowed to go to the Court of Appeals and have them re

03:11 - 12.227 weigh all of those factors and seem to be there's no need to be raising.

03:11 - 15.106 It's almost a justiciable question.

03:11 - 18.042 You seem to be saying that when the General Assembly passed

03:11 - 21.069 the sentencing code and may this limitation,

03:11 - 23.681 they purposefully didn't want appellate

03:11 - 27.552 courts substituting their judgment for the judgment

03:11 - 31.513 of the duly elected Common Pleas court judges who were doing the sentencings

03:11 - 37.118 and only to examine, the legality of it.

03:11 - 38.029 Well, because they

03:11 - 38.697 the General Assembly,

03:11 - 41.790 set forth the sentencing code to tell judges how to sentence people.

03:11 - 44.860 The General Assembly did in the sentencing code,

03:11 - 49.507 create a body of law for the precise purpose.

03:11 - 49.708 Right.

03:11 - 53.301 But influencing a what am I am I am I correct in the idea, though,

03:11 - 55.646 that you're really what you're saying is, is the General Assembly

03:11 - 00.075 made a policy decision that when we created the sentencing code,

03:12 - 04.088 there is nothing to appeal when it comes to a discretionary

03:12 - 07.148 aspect of sentence, because as long as it is within

03:12 - 11.329 what we say they can sentence, we don't want appellate courts

03:12 - 15.433 to second guess Common Pleas Court judges only within the parameters

03:12 - 20.137 of the Sentencing Code and the specific, very carefully circumscribed.

03:12 - 22.640 It's not the same as an abuse of discretion,

03:12 - 25.409 as we would like an evidentiary ruling or something like that.

03:12 - 28.479 Discretionary aspect of sentence is different from abuse of discretion.

03:12 - 29.747 That seems to be what you're arguing.

03:12 - 31.082 Yes. Well, I,

03:12 - 34.785 I don't follow that at all, but I still want an answer to my question.

03:12 - 38.413 If you if if you win this case,

03:12 - 41.926 and we affirm the Superior Court,

03:12 - 45.887 what I want you to tell me is what prevents the General Assembly

03:12 - 49.033 from repealing 97 and 81 tomorrow

03:12 - 53.604 and just eliminating all appeals in all discretionary challenges.

03:12 - 56.240 There's no principal distinction that I see here.

03:12 - 59.243 They created it in the first place, is what I would say, your Honor,

03:12 - 02.671 there was no such body of law before then.

03:13 - 04.849 Okay. So you you're I appreciate that.

03:13 - 10.211 So I think your answer then is that if you win tomorrow or today,

03:13 - 14.992 the General Assembly could just repeal 97, 81 and there'd be no challenge

03:13 - 18.286 to discretionary aspects of sentencing in the Commonwealth period.

03:13 - 25.260 If it was purely discretionary aspects of sentence and not legal question,

03:13 - 28.930 just purity concept is one I've never heard of in a legal excuse.

03:13 - 34.936 What would you consider repeal 9781 or what would you say?

03:13 - 38.115 There's no bar, or any limitation.

03:13 - 42.811 I want to raise a sentencing issue to an appellate court.

03:13 - 48.826 It's not if it's just about how the court weighed the sentencing factors

03:13 - 55.900 as opposed to illegality as opposed to illegality, jurisdictional defect,

03:13 - 01.539 violation of the rules of evidence, violation of a constitutional principle.

03:14 - 04.308 There's lots of ways that

03:14 - 08.479 violations of the law came to be viewed by the courts and described by the courts

03:14 - 13.441 as abuse of discretion, but they were not talking about and in fact,

03:14 - 15.519 they often said, we're

03:14 - 20.358 not going to disturb a sentencing court's weighing of the factors,

03:14 - 23.385 as long as it was, as long as it didn't violate any law.

03:14 - 28.623 But just as Monday's hypothetical was a if if 97 and 81 went away,

03:14 - 32.169 you're suggesting there would be no appeals of discretion?

03:14 - 33.038 You asked me a sentence.

03:14 - 36.264 The exact opposite is true, because 5101 of the judicial code

03:14 - 39.076 would give them a right of appeal for everything. Right.

03:14 - 40.678 This is a limitation.

03:14 - 44.181 9781 limits the otherwise general right of appeal.

03:14 - 46.384 And the judicial code

03:14 - 49.186 in the judicial code, which would apply.

03:14 - 52.189 But for the fact that this is more specific.

03:14 - 52.491 Right.

03:14 - 55.517 But so if if this went away,

03:14 - 57.228 all of them would be appeal able.

03:14 - 58.063 Not none of them.

03:14 - 01.298 Well, I would just say that as historical matter,

03:15 - 04.459 in terms of what the courts have held, it was never

03:15 - 06.471 appeal able.

03:15 - 10.098 It was not commonplace at all for the courts of appeal.

03:15 - 13.277 If a three way legitimate sentencing factor,

03:15 - 17.515 if the plain language of the statute is clear, we don't really go to the history.

03:15 - 22.720 And as I read, 97, 81, it's a limitation on appealing solely

03:15 - 27.048 the discretionary aspects of a sentence for a felony or a misdemeanor.

03:15 - 32.854 If you want to read 97, 81 and the Constitution together,

03:15 - 35.966 it just means that summary offenses can do whatever they want

03:15 - 37.168 with regard to their appeal.

03:15 - 38.836 And they have a right from non

03:15 - 42.497 record court to record court, from record to an appellate court.

03:15 - 46.668 And they aren't bound by the limitations of 9781.

03:15 - 50.214 They're not bound by the 9781 limitations.

03:15 - 53.808 They're bound by the state of the law prior to the time that the

03:15 - 58.480 the sentencing guidelines are 97 and 81, were the first time that the legislature

03:15 - 01.659 tried to create a body of law

03:16 - 04.753 that would direct the judge how to weigh

03:16 - 09.691 purely discretionary aspects of sentence as opposed to legal questions.

03:16 - 15.072 And they since they were creating it, it's a jurisdictional statute.

03:16 - 18.500 At the same time they created it, they placed limitations on it because they

03:16 - 21.412 didn't want it wasn't about clogging the courts so much.

03:16 - 26.317 It was about we didn't historically, we did not want appellate courts

03:16 - 30.378 to revisit the decisions that were made by a sentencing judge.

03:16 - 34.749 And I think is there's a difference between limiting

03:16 - 37.495 an appeal

03:16 - 41.298 versus totaling, barring an appeal that our Constitution

03:16 - 45.035 provides for, they don't barred appeal for summary sentences.

03:16 - 46.904 I mean, he says they do. But it doesn't.

03:16 - 48.239 They did hear his appeal.

03:16 - 51.432 They just didn't hear the discretionary aspects of sentence, part of his appeal.

03:16 - 53.477 That's the only issue on appeal.

03:16 - 54.346 Excuse me.

03:16 - 55.913 What if that's the only issue on appeal?

03:16 - 58.516 What if what if what if it was a perfect trial?

03:16 - 01.685 And the only issue is, I think the trial court

03:17 - 03.788 judge abused their discretion in putting my son and I.

03:17 - 05.289 Are they it

03:17 - 08.359 the the I want I want the Superior Court to look at what this judge did.

03:17 - 11.462 This is egregious compared to all these other factors.

03:17 - 14.465 And, that's the only issue.

03:17 - 17.492 If it's egregious, Your Honor, in all likelihood,

03:17 - 20.805 it's not going to just be discretionary aspects of sentence.

03:17 - 21.740 I don't see that at all.

03:17 - 22.807 That's not true.

03:17 - 24.899 There are two different things coming up with a,

03:17 - 27.611 an argument that surprises me.

03:17 - 32.049 I don't follow your, categorization of appeals

03:17 - 35.977 in criminal cases, and I still don't understand your art.

03:17 - 39.323 Your response to the question, what prevents them

03:17 - 43.227 from just barring all challenges to discretionary aspects of a sentence?

03:17 - 46.254 If you're right, is there any answer to that question?

03:17 - 49.366 I don't think the statute stops them from it,

03:17 - 51.502 and I don't think the Constitution would stop them from it,

03:17 - 54.529 because the Constitution didn't address that question in the first place.

03:17 - 55.240 Council.

03:17 - 58.909 That's that's where I'm I'm really struggling with this argument

03:17 - 03.104 because I'm looking at the words of the Constitution.

03:18 - 08.710 You're you're reading into this some historical perspective,

03:18 - 13.381 that has nothing to do with the language of the Constitution.

03:18 - 16.594 The language of the Constitution couldn't be clearer.

03:18 - 18.863 There shall be a right of appeal.

03:18 - 20.364 It says there should be a right of appeal.

03:18 - 22.867 It doesn't say that we're going to institutionalize

03:18 - 25.469 every conceivable decision that a judge might have made.

03:18 - 27.938 It's either right or it's not a Snyder. Exactly.

03:18 - 28.406 I mean,

03:18 - 31.942 the background that you're reading into, first of all, the legislative history

03:18 - 36.104 or the constitutional history about this amendment is about a page and a half long.

03:18 - 40.174 I mean, and and I mean, nothing could be clearer.

03:18 - 44.288 This was a huge expansion of the right of appeal

03:18 - 47.315 from that which existed under the prior constitution.

03:18 - 51.161 Huge expansion in the limitation that you're reading into.

03:18 - 55.556 It is just totally absent from the language of the Constitution.

03:18 - 57.568 That's what I'm struggling.

03:18 - 00.404 It was definitely an expansion of the right of appeal.

03:19 - 03.431 And as justice Mark Hawkins pointed out,

03:19 - 06.977 it was the at the Constitutional Convention.

03:19 - 10.281 They were saying we didn't have,

03:19 - 13.317 you know, in lots of these cases, people didn't have a right of appeal.

03:19 - 14.718 They couldn't appeal.

03:19 - 19.390 So they were concerned about they talked about what they were concerned about.

03:19 - 21.992 It was errors of law and insufficient evidence.

03:19 - 23.427 They weren't talking about discretionary.

03:19 - 23.595 Yeah.

03:19 - 27.031 But let's see, prior to the 68 Constitution,

03:19 - 30.801 there was a very limited right to appeal for only homicide

03:19 - 35.730 and other cases in which the legislature allowed the right of appeal.

03:19 - 37.875 That's essentially what it said.

03:19 - 42.179 I mean, what you're talking about is sort of reinserting

03:19 - 45.606 what existed in the 1874 Constitution.

03:19 - 48.786 I mean, this did exactly the opposite.

03:19 - 53.791 It took out that discretion of the legislature to otherwise determine

03:19 - 58.519 which cases could be appealed, and just created a right of appeal.

03:19 - 01.098 That's what that's what I'm struggling with. With the

03:20 - 04.501 are not saying that the legislature said you can't appeal a summary case.

03:20 - 05.437 You can appeal it.

03:20 - 09.630 You just can't appeal based on historical jurisprudence

03:20 - 13.043 come from though there's no historical jurisprudence.

03:20 - 16.070 Footnote to article five, section nine.

03:20 - 19.240 I mean, it's a fairly crisp

03:20 - 22.510 recitation of what the rights are.

03:20 - 26.423 I that's why this historical perspective is just not anything

03:20 - 30.218 that's embedded in the actual language of the Constitution.

03:20 - 31.962 There's no ambiguity.

03:20 - 36.300 I mean, we can't even look to find what you're talking about

03:20 - 39.927 because there's no ambiguity in what the Constitution says.

03:20 - 41.839 Let me ask you a question.

03:20 - 46.543 Let's assume let's assume that, just for the sake of discussion,

03:20 - 50.671 because I don't know if we have to reach the constitutionality of,

03:20 - 53.784 of 97, 81.

03:20 - 58.088 But if we did, would there really be that many more appeals to the Superior Court?

03:20 - 59.289 I can't answer that question.

03:20 - 03.494 I can't okay, so having come from the Superior Court, much time

03:21 - 07.121 is spent on deciding whether or not there is a substantial question.

03:21 - 11.335 I mean, I wouldn't I couldn't even guess at the percentage

03:21 - 16.531 of the cases that involve that issue, but it's a significant percentage.

03:21 - 21.169 Well, if you accepted my argument that the,

03:21 - 26.116 constitutional provision was not a wide open, it was not a

03:21 - 30.011 wide open invitation to appeal every single aspect of the sentence.

03:21 - 33.257 Then the legislature came along and said, okay,

03:21 - 37.127 we're going to create a comprehensive sentencing scheme, along with what is it?

03:21 - 37.829 My question?

03:21 - 42.466 My question is suppose suppose we said 9781 is unconstitutional.

03:21 - 44.802 You can't limit the right to appeal.

03:21 - 49.197 How does that really impact the caseload of the Superior Court?

03:21 - 53.077 Vis-a-vis these discretionary aspects of sentence case and answer that.

03:21 - 56.747 I can tell you that historically, we think the legislatures

03:21 - 59.683 are better equipped than courts to make those determinations.

03:21 - 01.852 When they passed the sentencing guidelines,

03:22 - 04.254 they published the proposed guidelines.

03:22 - 07.091 They solicited input from all the stakeholders

03:22 - 09.660 and experts, people in the criminal justice system.

03:22 - 11.929 They had hearings, debates.

03:22 - 14.131 That's what legislatures do.

03:22 - 18.368 Courts are not in a position to perform comprehensive investigations like that

03:22 - 20.838 and make decisions about comprehensive schemes.

03:22 - 23.841 That's something that we generally leave to the legislature.

03:22 - 25.843 They took that project on.

03:22 - 27.945 They created the sentencing guidelines.

03:22 - 32.607 But at the same time they said, we're creating this jurisdiction to review

03:22 - 37.245 what previously was not, in their view, reviewable, which was just

03:22 - 41.315 pure reweighting of a kind of a judge's.

03:22 - 42.994 Yeah.

03:22 - 45.529 Which, which factors he gave more weight to.

03:22 - 47.831 Which factors he gave less weight to.

03:22 - 50.858 They said for that kind of appeal,

03:22 - 53.170 we're going to limit this to felonies and misdemeanors.

03:22 - 55.772 And it's quite I think I agree with the Superior Court

03:22 - 00.144 that the language of that statute is is plain and unambiguous.

03:23 - 06.016 It's and it's backed up by many, many sections of the statute.

03:23 - 09.877 They all invoke they they all contain that limitation.

03:23 - 12.122 They contained it from the very beginning.

03:23 - 15.283 They there's no doubt that the statute does not.

03:23 - 19.420 I think that the statute does not apply to summary cases.

03:23 - 23.057 That doesn't answer your question about what happens if we eliminate 98,

03:23 - 25.435 97 and 81.

03:23 - 28.438 I think what the legislature would think the legislature would say,

03:23 - 32.333 if you want to apply the framework that we have for 1997 and 81,

03:23 - 36.113 do summary cases, then propose that to us, and we'll hold hearings

03:23 - 40.007 and do the same thing for that that we did before for felonies and misdemeanors.

03:23 - 43.053 But that

03:23 - 46.290 all presupposes that you disagree with me, that you think

03:23 - 52.787 the constitutional provision is clear on its face, that it doesn't.

03:23 - 55.666 In your view, what is it about this

03:23 - 59.627 constitutional provision that is not clear and unambiguous?

03:23 - 04.131 What is it about this language that you find to be ambiguous,

03:24 - 08.545 only that if you you have to look at the constitutional provision

03:24 - 09.546 against the backdrop?

03:24 - 12.282 No, you don't one you don't look at the backdrop.

03:24 - 15.309 You have to get the language of the Constitution.

03:24 - 18.779 And if there's no ambiguity, you stop, okay.

03:24 - 24.118 No, that's what I'm that's what I'm struggling with about your argument.

03:24 - 27.922 If you're saying that the intent of the drafters is not meaningful

03:24 - 31.759 at all, you look at it as the language, its constitution.

03:24 - 33.470 The best indicator

03:24 - 37.908 of the intention of the drafters is the language of the Constitution itself.

03:24 - 38.676 Okay.

03:24 - 42.503 And if the Constitution said there shall be a right of appeal and it shall include

03:24 - 44.749 every

03:24 - 48.643 issue in the case, including those hitherto deemed not

03:24 - 52.489 appropriate for appellate review, like there's no language, there's

03:24 - 55.959 no limitation language in the Constitution, okay?

03:24 - 58.595 There's no a right of appeal.

03:24 - 01.622 So it doesn't address it expressly.

03:25 - 02.533 I can't deny that.

03:25 - 04.334 It doesn't expressly.

03:25 - 07.337 I mean, it's stated in very general terms.

03:25 - 11.341 That doesn't mean that, you know, the legislature and the courts

03:25 - 15.646 can't make decisions about what kinds of appellate

03:25 - 19.249 issues are necessary in order to effectuate the right thing.

03:25 - 23.453 If you're correct, they should have said, unless otherwise provided

03:25 - 27.415 by the general Assembly, there shall be a right of appeal.

03:25 - 30.827 But see, it doesn't say that

03:25 - 35.923 it and your entire argument is based upon that proviso.

03:25 - 39.827 My argument is based on the intent of the drafters. Yes.

03:25 - 45.132 And I don't think you can read into the intent of the drafters that

03:25 - 50.338 although there had never been appeals that were just based on reweighting,

03:25 - 55.076 permissible sentencing factors, they suddenly intended to create that

03:25 - 56.521 without saying.

03:25 - 00.891 So I think they would have said so if they intended that result and they didn't.

03:26 - 03.527 I think we get it. Are there any other questions?

03:26 - 04.685 Thank you both very much.

03:26 - 07.565 The next case

03:26 - 10.758 for argument is Wegmans Food market versus coal.

03:26 - 14.338 This is a worker's compensation dispute.

03:26 - 18.032 Pennsylvania has a statute known as the Worker's Compensation Act.

03:26 - 22.713 As a general matter, this law is designed to insure employees

03:26 - 26.607 who are injured on the job receive medical care and wage

03:26 - 30.354 lost compensation for on the job injuries

03:26 - 34.515 without requiring a determination of fault on the part of the employer.

03:26 - 38.295 And in exchange, employers receive protection

03:26 - 41.322 from liability in civil court.

03:26 - 45.168 The central question in this case is whether an employer

03:26 - 48.195 can suspend an injured worker's benefits

03:26 - 52.433 when that worker disregards her doctor's advice to stop smoking,

03:26 - 57.238 advice that her physicians agreed was medically necessary for her recovery.

03:26 - 01.017 The worker, Miss Bonnie Cole, suffered a leg

03:27 - 04.111 fracture on the job at Wegmans Food Markets.

03:27 - 07.491 Despite medical advice to quit smoking.

03:27 - 10.861 She continued, and her condition worsened, ultimately

03:27 - 13.888 requiring amputation of her lower leg.

03:27 - 17.267 The worker's compensation judge suspended Mrs.

03:27 - 21.996 Cole's benefit, finding she had refused reasonable medical care.

03:27 - 25.041 However, the Worker's Compensation Appeal.

03:27 - 28.845 Board reversed and the Commonwealth Court affirmed

03:27 - 32.673 that reversal, ruling that the employer never proved this.

03:27 - 36.787 The specific treatment offered a smoking cessation

03:27 - 40.080 prescription, had a high probability of success.

03:27 - 45.295 The employer, Wegmans, now asks the Supreme Court

03:27 - 49.957 to reverse the Commonwealth court's ruling, arguing that medical advice alone

03:27 - 53.894 qualifies as, quote, medical service under the law.

03:27 - 57.465 And that proof that the disregarded medical advice

03:27 - 01.978 would have prevented deterioration of the medical condition

03:28 - 05.005 is enough to justify termination of benefits.

03:28 - 09.009 Miss Cole asks the Supreme Court to affirm the lower court,

03:28 - 12.489 arguing the employer never met its initial burden of proving

03:28 - 15.916 that a reasonable treatment was actually offered and refused.

03:28 - 20.888 Let's listen in on the argument in Wegmans food market versus coal.

03:28 - 22.799 May have pleased the court.

03:28 - 25.168 Madam Chief Justice justices.

03:28 - 28.738 My name is Burke Macklemore, and I'm privileged to represent Wegmans.

03:28 - 30.507 Food Markets Incorporated in this.

03:28 - 33.534 My final appellate argument.

03:28 - 36.746 I'd like to

03:28 - 39.883 just sort of clear up the elephant in the room on this case.

03:28 - 42.910 The elephant in the room in this case is the

03:28 - 45.522 interpretation of the

03:28 - 49.216 statute that always says you should always look toward,

03:28 - 53.053 interpreting the statute in favor of a claimant.

03:28 - 53.798 Right.

03:28 - 58.759 In this particular case, though, we have a situation

03:28 - 02.229 in which the claimant herself

03:29 - 05.332 was the one who was responsible for her own injury.

03:29 - 09.837 And this court in the muse case put it quite bluntly,

03:29 - 14.618 who can be cured and won't soon dry sympathy.

03:29 - 17.645 And we're the most willing helpers.

03:29 - 20.290 Now, I'd like you to imagine if you could please

03:29 - 23.317 the following situation.

03:29 - 26.530 An individual becomes injured at work

03:29 - 29.990 and sustains an ankle fracture exactly like happened.

03:29 - 34.895 And she goes for follow up with her doctor.

03:29 - 38.265 And the doctor said, this is cold.

03:29 - 43.003 You have to keep that wound clean and dry.

03:29 - 47.741 If you don't keep it clean and dry, you're going to develop an infection.

03:29 - 51.721 And when you develop an infection, it's going to lead to osteomyelitis.

03:29 - 54.157 And then you're going to lose the leg.

03:29 - 58.986 And this admonishment is given repeatedly by every physician.

03:30 - 03.090 The person sees.

03:30 - 04.569 Irrespective of

03:30 - 07.595 whether she receives medication or anything like that.

03:30 - 12.132 The rule is keep the wound dry and clean.

03:30 - 15.378 And when she doesn't do so, guess what?

03:30 - 18.472 She develops osteomyelitis and loses the limb,

03:30 - 24.144 knowing full well exactly what the harm was anticipated to be.

03:30 - 30.250 So counsel, is that medical medical advice or is that part of the treatment plan?

03:30 - 32.896 That's there a difference? That's my whole point.

03:30 - 37.224 It's the Commonwealth Court missed the boat, in my opinion,

03:30 - 40.437 by failing to differentiate between

03:30 - 43.831 active medical care and passive medical care.

03:30 - 47.101 This is what I would call passive medical care.

03:30 - 47.812 In Mrs.

03:30 - 51.939 Cole's case, the passive medical care was the admonition.

03:30 - 54.951 Mrs. Cole, you have to stop smoking.

03:30 - 57.253 But, counsel, you're.

03:30 - 00.280 I'm struggling with your interpretation.

03:31 - 03.159 It seems, I mean, you're saying

03:31 - 06.720 advice is the medical service, but

03:31 - 11.592 there's medical services being furnished in the course of which advice is given.

03:31 - 15.229 Well, let me, let me let me give you a different hypo.

03:31 - 20.944 Suppose, you go to a domestic relations lawyer

03:31 - 24.371 because your fiancé presented you a prenup,

03:31 - 29.376 and, that you consult with that lawyer,

03:31 - 33.280 and that lawyer urges you not to sign it,

03:31 - 37.685 but you disregard his or her advice, and you sign it anyway.

03:31 - 41.922 You did not follow the advice, but you got legal services, didn't you?

03:31 - 43.901 Well that's true.

03:31 - 45.168 You did get legal services.

03:31 - 49.797 How do you how are you conflating for this woman the advice and the service.

03:31 - 50.641 Right.

03:31 - 53.510 I will point out that the worker's

03:31 - 57.547 compensation statute says the carrier

03:31 - 02.342 or the employer has to pay for all medical treatment irrespective.

03:32 - 03.688 And in the instant,

03:32 - 07.514 in the circumstance that I mentioned earlier, was to keep clean and dry.

03:32 - 09.492 You go into the doctor's office.

03:32 - 13.854 The only thing he does is he looks at your leg and says, keep it clean and dry.

03:32 - 17.767 Do you think for one second that the carrier

03:32 - 20.794 or the employer wouldn't have to pay for that visit?

03:32 - 23.840 It's a two way street.

03:32 - 25.809 If you have to pay for the visit. I'm sorry.

03:32 - 27.010 No, no. Please proceed.

03:32 - 29.512 If you have to pay for the visit, that's the treatment.

03:32 - 31.915 You got the treatment and you disregarded it.

03:32 - 36.577 But doesn't it depend in some ways on the nature of the treatment?

03:32 - 39.289 That seems much clearer to me.

03:32 - 43.059 Not speaking for my colleagues, but the directive

03:32 - 47.354 that in order for your wounds to heal, you need to keep it clean and dry.

03:32 - 52.326 Seems much more akin to medical treatment.

03:32 - 53.603 I mean, it is advice,

03:32 - 58.007 but much more akin to medical treatment than you should stop smoking

03:32 - 01.911 or you should lose weight or, you know, lifestyle

03:33 - 04.938 advice in that way up.

03:33 - 09.309 There's a there's an interesting little factor that goes into this as well.

03:33 - 11.287 And you pointed it out.

03:33 - 14.515 Chief Justice Todd, during your introduction of the case.

03:33 - 15.825 And that is she received

03:33 - 18.919 not only counseling, she got medication and she didn't use it.

03:33 - 23.223 And that was specifically found by the judge that she didn't use it.

03:33 - 26.660 And what's really important here, counselor, can I can I stop you there?

03:33 - 30.406 She say she broke her leg or broke her ankle along the lines of what?

03:33 - 32.776 Justice work. And the chief was just asking you.

03:33 - 33.977 And the doctor said, you know what?

03:33 - 36.613 You're grossly overweight or obese.

03:33 - 39.640 I'm going to prescribe for you a GLP one or a semaglutide.

03:33 - 42.485 I think you need to lose weight because it's going to help your leg clear.

03:33 - 44.229 And she decides she doesn't want to do that.

03:33 - 48.424 How do you how do you force somebody to go on some kind of metric?

03:33 - 50.994 Smoking is is is illegal.

03:33 - 53.830 It's legal and it's an addiction.

03:33 - 56.633 It's an addiction. It's legal. It's no different than, you know what?

03:33 - 58.868 You should eat more vegetables or you need to lose weight,

03:33 - 00.703 or you need to stop drinking alcohol

03:34 - 04.131 because all of these things would basically help your body recover itself.

03:34 - 07.277 But if they can't do it, it's how do you distinguish

03:34 - 10.304 between lifestyle advice and medical device medical treatment

03:34 - 13.516 and that's that's a point that I was going to get to.

03:34 - 15.151 And I'm glad you raised it.

03:34 - 18.178 In this particular case, there was no claim by the claimant

03:34 - 21.257 that she couldn't stop smoking.

03:34 - 22.158 She never raised it.

03:34 - 22.793 She never said,

03:34 - 26.386 I can't stop or I'm having a problem stopping or anything like that.

03:34 - 28.889 And that was specifically found by the judge

03:34 - 30.467 that what

03:34 - 33.493 does the smoking have to do with a fractured ankle?

03:34 - 36.730 The smoking has everything to do with the failure to heal.

03:34 - 41.268 And it was the unanimous medical opinion of all the doctors who testified.

03:34 - 45.339 But you're saying Wellbutrin resolve fractures? No.

03:34 - 48.918 Wellbutrin was designed to help her stop smoking.

03:34 - 51.855 I know why Wellbutrin, but the

03:34 - 52.790 and Wellbutrin.

03:34 - 55.525 And honestly, Mr.

03:34 - 58.995 Justice, Wellbutrin isn't the issue here, in my opinion.

03:34 - 01.998 In my opinion, the issue is what was the medical advice

03:35 - 05.058 that medical advice was refused the medical services. She.

03:35 - 09.129 I mean, if you if your argument is correct and you prevail,

03:35 - 12.909 it would seem to have some significant consequences

03:35 - 18.248 statewide because, anybody who goes to see a doctor

03:35 - 22.542 gets all sorts of advice, you know, lose some weight, get some exercise.

03:35 - 27.323 And if you're right, by logical extension, I mean, I don't see the principle

03:35 - 31.427 difference, with denials of coverage for all manner

03:35 - 35.689 of lifestyle choices people make, you know, oh, you ate a piece of cake.

03:35 - 38.668 You know, you're you refused medical services

03:35 - 42.171 because your doctor said you can't lose weight or you didn't.

03:35 - 45.899 You know, you didn't go to the gym, so you didn't follow his or her advice.

03:35 - 48.311 Deny we deny your claim.

03:35 - 51.338 So, it seems like a slippery slope.

03:35 - 55.842 When you say a patient who never refused medical services

03:35 - 00.013 but perhaps didn't follow advice on one aspect of her behavior

03:36 - 02.058 should be denied coverage.

03:36 - 04.694 Well, I Justice Wecht,

03:36 - 08.588 one of the cases that, this court dealt with before,

03:36 - 12.859 I believe I believe it was in the abuse case, dealt with physical therapy.

03:36 - 16.129 And exactly what you're talking about happened.

03:36 - 19.366 The claimant was told to go to physical therapy,

03:36 - 24.371 and he was up for no show and his benefits.

03:36 - 26.115 I'm sorry, Mr. Joyce case.

03:36 - 29.643 His benefits were ended, and that was an amputation case as well.

03:36 - 31.187 Well, that's why I ask.

03:36 - 33.089 Maybe it's not a matter of.

03:36 - 37.451 Is it medical advice in this box, or is medical treatment in this box,

03:36 - 42.289 but rather it depends on the nature of the medical advice, if you're told.

03:36 - 44.934 You've got, you've had surgery.

03:36 - 49.229 And in order for you to heal from that, knee replacement or whatever,

03:36 - 52.308 you must go to physical therapy for it to work.

03:36 - 57.413 That seems like it goes beyond medical advice and is part of the treatment plan.

03:36 - 00.483 So I wonder, is there some room here for it?

03:37 - 01.684 Depends.

03:37 - 04.287 Well, and that's that's exactly it.

03:37 - 06.756 Every case is fact specific.

03:37 - 09.783 And this one in particular is unusual in fact specific.

03:37 - 12.996 I can tell you that it's always remarkable to me.

03:37 - 16.966 I've been practicing almost 50 years now and almost exclusively

03:37 - 18.434 in worker's compensation.

03:37 - 21.561 And this forfeiture provision of the act goes back

03:37 - 25.165 to the beginning of the act in 1915.

03:37 - 27.143 So it's always been there.

03:37 - 31.338 What what has also been there is the requirement that the employer

03:37 - 35.175 pay for almost every kind of treatment

03:37 - 39.112 under the sun, short of voodoo and exorcisms.

03:37 - 44.084 And the Statutory Construction Act defines medical care very broadly.

03:37 - 47.997 And, yeah, I don't think there's I think that's a compelling argument. Mr..

03:37 - 48.665 Macklemore.

03:37 - 51.000 I, I though to the chief's point.

03:37 - 52.869 I think these are incredibly facts specific.

03:37 - 55.896 You have some really good expert testimony

03:37 - 59.142 on your side here about the ramifications of smoking and healing,

03:37 - 03.437 and particularly the complications that developed with this, with this woman.

03:38 - 07.450 But you're kind of the chief's point, though, is,

03:38 - 11.445 is your hypothetical is a much clearer case than this one.

03:38 - 14.815 Your hypothetical is the advice that was given

03:38 - 18.218 was something that arose out of the injury.

03:38 - 22.398 And, and here the advice that is being given

03:38 - 26.259 is not arising out of the injury, but arising about out of who the claimant is.

03:38 - 31.932 So, for example, you know, you know, an employer hires and an,

03:38 - 34.111 I don't know what the right term is.

03:38 - 37.871 I don't want to use a wrong term, but, an overweight person,

03:38 - 41.341 that overweight person gets injured.

03:38 - 44.387 The overweight person is going to have a harder time

03:38 - 47.981 recovering from a particular injury than an underweight person.

03:38 - 53.053 Why should the medical advice, for purposes of refusal

03:38 - 56.723 to, be tied to changing who the person was?

03:38 - 03.239 Because your point, I completely embrace this idea that if if if this person

03:39 - 06.275 has surgery and my advice

03:39 - 09.336 and treatment is you have to keep this clean,

03:39 - 12.348 I could see that as a

03:39 - 15.251 perhaps a formidable problem if they don't keep it clean.

03:39 - 18.354 But the advice here was not post injury advice.

03:39 - 21.381 It was trying to alter who the claimant was.

03:39 - 26.686 I, I recognize your point, but again

03:39 - 31.858 it's fact specific and not only was she given the advice,

03:39 - 35.662 she understood fully the ramifications of failure it.

03:39 - 37.840 But you agree though the advice really wasn't

03:39 - 40.109 keep the wound clean or go to physical therapy.

03:39 - 42.945 The advice was I want you to be somebody that you're not.

03:39 - 44.180 I want to change.

03:39 - 46.215 I want to take what you were before the injury, and