The six sitting justices of the Pennsylvania Supreme Court are set to meet in Philadelphia this morning to start a two-day oral argument session that will tackle issues ranging from attorney-client privilege to evidentiary concerns in asbestos cases.
After the court deals with a few attorney disciplinary matters this morning, it is set to hear arguments in In re Thirty-Third Statewide Investigating Grand Jury, which deals with whether the Pennsylvania Turnpike Commission, under investigation by a grand jury, is entitled to attorney-client privilege as a state agency.
The decision to hear the case, which came over a dissenting statement from Justice Thomas G. Saylor, granted the PTC’s petition for review as to the attorney-client privilege issue, unsealing the case’s docket along the way.
From the only documents on record — the petition to the justices and the supervising grand-jury judge’s opinion that the PTC appealed — it was not exactly clear why state prosecutors have been using a grand jury to look at the commission since 2009.
However, the judge overseeing the grand jury said the Pennsylvania Office of the Attorney General is asking the grand jury to investigate whether the commission, its commissioners and its employees violated any criminal statutes with regard to its employment practices, its procurement practices, and if it used commission resources to conduct political activities.
Saylor, in his two-page dissenting statement, said he would not have granted the PTC’s request under the collateral order doctrine, noting the high court has denied review of privilege assertions in grand jury settings before. Other privilege assertions, he conceded, have been ruled immediately appealable.
"Application of the collateral order doctrine to the present case would suggest that the court is moving away from constancy in the grand jury setting, and, rather, may weigh discrete privilege assertions to decide which will be deemed so important as to meet some undefined threshold," Saylor said.
In its petition for review, the PTC argued the trial judge failed to recognize the legislature extended attorney-client and work-product privilege to, in the PTC’s words, "all attorneys and all clients." The PTC also argued the lower court erred in finding the Commonwealth Attorneys Act removes privilege for commonwealth agencies and that it erred in failing to recognize that all policy concerns regarding affording privilege to government agencies are allayed by the crime-fraud exception to attorney-client privilege.
On Wednesday, the court will hear arguments over whether Pennsylvania law provided a cause of action to taxpayers who sued a law firm for the administrative costs they paid the firm for collecting real estate taxes.
An en banc Commonwealth Court panel upheld nearly $2.35 million in damages and attorney fees that Michelle Portnoff and her firm, Portnoff Law Associates of Norristown, Pa., were ordered to pay to the class.
In the October 3 allocatur grant, the court took up three issues in Roethlein v. Portnoff Law Associates.
The first is whether the Loan Interest and Protection Law (LIPL), or Act 6, provides a cause of action to challenge costs of collecting delinquent taxes, and whether a court may impose treble damages and attorney fees when the costs did not arise from a "transaction involving the loan or use of money."
Secondly, the justices agreed to review whether an LIPL lawsuit may be pursued as a class action suit, which the Commonwealth Court allowed.
Finally, the justices will look at whether the Commonwealth Court erred in ruling payments from a municipality to a third-party tax collector were not "’charges, expenses or fees’" under the Municipal Claims and Tax Liens Act — charges that could have been added to the delinquent taxes themselves.
Portnoff Law Associates had appealed Philadelphia Court of Common Pleas Judge Mark I. Bernstein’s orders ruling $1.06 million in administrative fees be repaid to the 16,000-member class along with $1.27 million in attorney fees and nearly $21,000 in costs.
The initial March 2008 award against Portnoff and her firm was for more than $5.2 million because it included the attorney fees that were also charged to the taxpayer for her work as well as punitive damages for the firm’s "intentional disregard of the rule of law" by charging taxpayers attorney fees. But a state Supreme Court decision five months later found an amendment to the MCTLA could retroactively apply to allow for municipalities to charge taxpayers attorney fees incurred in the collection of delinquent taxes.
Asbestos Summary Judgment
Howard v. A.W. Chesterton, scheduled for oral argument Wednesday, will feature discussions on the summary judgment threshold in asbestos cases.
In Howard, the justices granted allocatur to determine whether the Superior Court misapplied the high court’s 2007 holding in Gregg v. V-J Auto Parts when it allowed an asbestos suit to proceed against several manufacturers despite the plaintiff’s submission of what the defendants said were "generic, non-case-specific expert affidavits" in place of specific evidence of the regularity, frequency and proximity of his exposure to an asbestos product.
The second question for review is whether the suit should have been allowed to proceed despite the plaintiff’s testimony that he did not see any dust generated by the asbestos products during his exposure to them.
In the case, a three-judge panel of the Superior Court unanimously reversed a Philadelphia trial court’s order and allowed plaintiffs Margaret and Robert Howard, co-executors of the estate of John C. Ravert, to proceed past the summary judgment stage of their asbestos mass tort litigation.
Abolishing Jury Commissioners
In July 2012, a deeply divided Commonwealth Court relied on its 2011 ruling to allow the abolishment of prothonotaries in determining a similar abolishment of jury commissioners in the state did not violate the separation of powers doctrine.
Today, the justices are slated to hear arguments over whether Act 108, which abolished jury commissioner offices, violates the single subject requirement of the Pennsylvania Constitution given the same law deals with topics from jury commissioners to the sale of surplus farm products.
The majority of the Commonwealth Court had found the unifying theme in the law was that it gave county commissioners additional powers.
The Supreme Court’s allocatur grant also asked whether Act 108 violates the separation of powers doctrine and the unified judicial system considering the office of jury commissioner is a judicial branch office and was abolished by the state legislature.
Dog Bites Dog
A routine dog attack has led the court to debate strict liability laws in Pennsylvania. The justices are slated to hear arguments today in Commonwealth v. Raban, related to whether Section 305(a)(1) of the Dog Law is a strict liability offense. The court directed the parties to discuss the case within the framework of the Statutory Construction Act.
In other words, does the owner of an errant dog have to fail to exercise reasonable efforts to confine the dog, or possess a mens rea, to be found liable?
Two courts have already said no, with a unanimous state Superior Court panel deciding it would "frustrate the legislative intent" behind the law if a reasonable care standard were to be utilized.
But the attorney representing Simon Raban, the man whose Giant Schnauzer allegedly ran from his home and attacked a Bernese Mountain dog across the street, said the Dog Law appeared to be strict liability in some places but reasonable care in others.
Lien on Me?
This afternoon, the court is slated to hear arguments in a case that deals with who is on the hook for municipal liens in a deed-in-lieu-of-foreclosure situation.
In City of Philadelphia v. Philadelphia Transload & Logistics, the court will mull whether an entity that acquired a property via a deed-in-lieu-of-foreclosure falls within the exception to a general rule that the three-year statute of limitations for the city to file municipal liens no longer applies under amendments to the law.
A 1959 amendment to the Municipal Claims Act essentially did away with the three-year statute of limitations, allowing municipalities to revive liens against property owners whenever the municipality realized a utility wasn’t being paid. Philadelphia Transload & Logistics has argued a string of case law has ruled the three-year statute of limitations is still in place, however, when unassuming, intervening buyers purchase or come to acquire the property during a time when the lien has not been publicly issued by the municipality.
Other Cases on the Docket
The justices will consider whether a freight railroad should bear a portion of the cost to remove a bridge that hovers over a highway crossing it uses but does not own. The case, Norfolk Southern Railway v. PUC, is slated for Wednesday’s arguments.
Today, they will hear arguments in Commonwealth v. Fisher, dealing with whether conspiracy to commit third-degree murder is a cognizable offense under Pennsylvania law.
Also today, the court will hear a search-and-seizure case involving the warrantless search of a vehicle for drugs. The court granted allocatur in Commonwealth v. Gary as to whether it should adopt the federal automobile exception to the warrant requirement.