ORAL ARGUMENTS

Before the case of Commonwealth v. Koch was even appealed to the state Supreme Court, attorneys were calling it Pennsylvania’s landmark case on the admissibility of electronic communications.

Today, attorneys for the state will argue the state Superior Court erred when it ruled there was no evidence showing a Pennsylvania woman wrote the drug-related text messages police found on her cellphone in 2009. The justices’ decision on the matter, according to courtwatchers, could be the governing literature on whether attorneys may submit text messages found on a person’s cellphone as, well, theirs.

That case serves as the apparent headliner of a two-day argument session in which the six-justice Supreme Court, split evenly along party lines, was also set to decide two important cases on Pennsylvania’s Marcellus Shale.

First, the justices will hear arguments today in a case in which the court has been asked to halt a scientific debate over whether the shale is a “mineral.” Last year, the Superior Court allowed a dispute over land rights to move forward so experts could determine whether shale is a mineral, which would mean its owners would also own the natural gas contained within.

Tomorrow, attorneys for the gas industry will also argue the merits of amendments to the state’s Oil and Gas Act, known as Act 13, requiring municipalities to adopt uniform zoning ordinances that would allow drilling in all zoning districts. The amendments were invalidated as unconstitutional by a deeply split Commonwealth Court over the summer.

Also on the menu? A magisterial district judge who flashed a gun on the highway, an insurance attorney fees case, whether attorney-client privilege protects a client’s identity from being disclosed as public information, and a suppression matter where cops found guns in a man’s car before it was towed.

Additionally, the justices will hear arguments from a group of plaintiffs attorneys in a class action suit regarding the costs of obtaining medical records — a dispute that appears to have already been resolved by the Pennsylvania General Assembly. The justices decided to hear the case anyway, rejecting a petition from the defendants to pull their grant of allocatur.

‘Unauthenticated’ Texts

In Koch, police found 13 drug-related text messages on Amy N. Koch’s cellphone during a drug raid of her home and transcribed them as evidence in her jury trial. The Superior Court, finding the texts to be inadmissible hearsay, granted her a new trial in September of last year after she was convicted of drug charges. The state appealed to the Supreme Court.

A jury had convicted Koch, as an accomplice, of both possession of drugs and possession with intent to distribute.

On appeal, the justices will first examine whether the text messages “were not offered for their truth” and were therefore admissible. The high court is also tasked with reviewing the case in terms of Pa.R.E. 901, on “Requirement of Authentication or Identification.”

The state questioned whether the Superior Court, in reversing a Cumberland County judge’s decision to admit the texts, had ruled against its previous holding in another case and thus created “uncertainty in the law.”

Prosecutors had argued at trial the text messages were being used simply to “prove the fact that these things were said on this phone.”

Koch countered the state lacked evidence pegging her as the author of the texts, like her name, for example. While the phone in question was, in fact, Koch’s, prosecutors conceded there was evidence that other people wrote text messages from the device, though they were unrelated to the prosecution.

Following the Superior Court’s ruling, a number of experts specializing in both criminal law and legal technology offered their opinions on not only the court’s analysis, but the attorneys’ approach to the case.

Matthew T. Mangino, a criminal practice columnist for the Law Weekly and former Lawrence County district attorney, said the decision will give prosecutors a “road map” as to how to get text messages admitted in court.

Leonard Deutchman, who writes a cyberlaw column for the Law Weekly, disagreed with the court’s reasoning, adding the trial court properly admitted the texts. He also said prosecutors could have done more at trial that could have altered the Superior Court’s ruling. Deutchman called the Cumberland County District Attorney’s Office’s approach “pretty low-tech.”

Based on the current legal standards, he said, the evidence proving authorship of such text messages would be stronger than evidence showing drugs found in a shared living space belong to a specific person.

Meanwhile, he added, prosecutors could have matched entries in the phone’s call log with the times of the text messages to show they were Koch’s work.

“What if the call log had a call to her mother?” he said. “Was somebody else calling her mother?”

Big Shale

In the mineral case, J. & M. Butler v. Powers Estate & Pritchard, which is set to be argued Tuesday, one Pennsylvania lawyer said a ruling that shale is in fact a mineral could potentially lead to “chaos” for operators in the Marcellus Shale play who have already paid landowners millions to drill on their properties.

But before that is settled, the justices must decide whether the question should even be asked.

In September of last year, the state Superior Court allowed a dispute over land rights to move forward so experts could determine whether shale is a mineral whose owners would also own the natural gas contained within.

The high court granted allocatur in April to determine “whether the Superior Court erred in remanding the case for the introduction of scientific and historic evidence about the Marcellus Shale and the natural gas contained therein, despite the fact that the Supreme Court of Pennsylvania has held (1) a rebuttable presumption exists that parties intend the term ‘minerals’ to include only metallic substances, and (2) only the parties’ intent can rebut the presumption to include non-metallic substances.”

In the other case, slated for Wednesday, the justices will hear arguments over whether the Commonwealth Court got it right by invalidating Act 13′s provisions requiring municipalities to uniformly allow drilling in all zoning districts.

In Robinson Township v. Public Utility Commission, the Commonwealth Court ruled 4-3 to overturn Section 3304 of 58 Pa.C.S., known as Act 13 of 2012. The court reasoned that requiring municipalities to bring their zoning ordinances into compliance with Act 13 means forcing local governments to violate substantive due process by allowing incompatible uses in their districts.

In a 57-page opinion, President Judge Dan Pellegrini, writing for the majority, said Section 3304 is a “requirement that zoning ordinances be amended in violation of the basic precept that ‘land-use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.’”

Also on Docket

• In the case of Chiurazzi Law v. MRO, the justices declined to pull their grant of allocatur after attorneys representing a medical records company argued the legislature had already decided the case. The class action suit questions whether health care providers can base their charges for providing hard copies of medical records on the maximum charges spelled out under state law.

The allocatur grant was first disputed after the General Assembly removed key language from the Medical Records Act that, in essence, stated this: A medical care provider under subpoena for medical records has sufficiently responded to that subpoena by telling the attorney of its decision to proceed under Section 6152(a)(1), as well as “of the estimated actual and reasonable expenses of reproducing the charts or records.”

• In Herd Chiropractic v. State Farm Mutual Automobile Insurance,the court has agreed to hear arguments over whether the state Superior Court erred in ruling that defendant State Farm owed attorney fees despite its proper use of peer review in denying coverage and deeming medical care unnecessary.

In September of last year, a three-judge Superior Court panel unanimously affirmed a Dauphin County trial court’s ruling awarding $27,047 in attorney fees to plaintiff Herd Chiropractic Clinic and against State Farm.

Judge Anne E. Lazarus, writing for the majority, said there is nothing in the language of the Motor Vehicle Financial Responsibility Law “that specifically precludes attorney fees where a peer review decision is challenged and the court finds the treatment reasonable and necessary.”

• In Scientific Games v. GTECH, the court has agreed to hear arguments over whether the state Board of Claims has exclusive jurisdiction to decide cases arising from contracts with the state, including the claim that a contract exists.

Also to be decided in that case, according to the court’s grant of allocatur: Does the exception to the board’s exclusive jurisdiction over contract claims “apply only when jurisdiction in another forum is otherwise expressly and specifically ‘provided by law?’”

• In the lone public records case, the justices will eye whether attorney-client privilege protects clients’ identities, or general descriptions of legal services they’ve received, from being made public.

In Levy v. Senate of Pennsylvania, a five-judge Commonwealth Court panel unanimously reversed in part and affirmed in part a final decision of the Senate appeals officer, who released financial records related to five Senate employees for whom outside counsel had been hired but redacted the employees’ names, as well as both general and specific descriptions of the legal services they required.

• Finally, of note in the criminal practice today, attorneys will argue over whether firearms discovered during an inventory of a defendant’s vehicle prior to it being towed should have been suppressed in a subsequent weapons charges trial.

The Superior Court affirmed a trial court’s decision to deny the defendant’s motion to suppress firearms obtained during the inventory search of the vehicle.

• The court was set for Wednesday with an appeal from the state Judicial Conduct Board to a court’s holding that Magisterial District Judge Thomas Carney, in displaying a handgun during an apparent incident of road rage, did not violate rules governing MDJs.

The Court of Judicial Discipline, in dismissing the JCB’s complaint, ruled Carney’s conduct did not constitute a violation of the rule stating that MDJs “shall respect and comply with the law and shall conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Carney was also accused of making public comments regarding robbery defendants who appeared before him in court and chaired an anti-graffiti task force that was seeking to raise money, the Law Weekly has previously reported.

According to the CJD opinion, the court was constrained to not find a 2A violation because, though Carney’s conduct may have been illegal, it did “not implicate the decision-making process.” The Supreme Court, according to the CJD opinion, has said in dicta that such is a necessary condition for a 2A violation.

• In Dorsey v. Redman, the justices are primed to decide whether, under the Political Subdivision Tort Claims Act, a register of wills is immune from suit under Section 3172 of the Probate, Estates and Fiduciaries Code, on the “register’s responsibility.”

In that case, according to the Commonwealth Court’s opinion, an estate’s administratrix sued the Fayette County register of wills and surety alleging they were liable for damages as a result of the register not securing a bond before issuing letters to a previous administratrix. The trial court, in holding the register was entitled to immunity under Section 8541 of the Tort Claims Act (on exceptions to governmental immunity), granted summary judgment in favor of the register. But the Commonwealth Court vacated the ruling and remanded the case, deciding the register was not entitled to governmental immunity under the act.

The opinion did note, however, that the register may raise the defense of official immunity during trial if the fact finder determines the register believed in good faith that his conduct was required by law.

The high court, according to the allocatur grant, will examine that, as well.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI. •