Making their way before the state Supreme Court on expedited review, two lawsuits challenging Pennsylvania’s mandatory judicial retirement age headline an oral argument session in Harrisburg scheduled to begin today.

The judges’ challenges were dispatched to the high court in March in a somewhat unusual order directing expedited briefing on the constitutionality of the retirement age and will go before the court Wednesday, the busier day of the two-day session. As it stands, the law requires that Pennsylvania judges retire in the year they turn 70.

Also coming Wednesday, a $187.6 million judgment against retail titan Wal-Mart in a class action lawsuit and a case over what constitutes “actual prejudice” that would relieve an insurer of its duty to indemnify.

Judicial Retirement Age

The first of the retirement cases set to be argued Wednesday, Driscoll v. Corbett, is the collective claims of Westmoreland County Court of Common Pleas Judge John J. Driscoll, the administrative judge of the juvenile court, Philadelphia Court of Common Pleas Senior Judge Sandra Mazer Moss and her colleague, Judge Joseph D. O’Keefe, administrative judge of the Orphans’ Court in Philadelphia.

Robert C. Heim of Dechert is representing those judges, along with three other judges whose cases are now pending in federal court.

The second lawsuit, Tilson v. Corbett, comes from Montgomery County Court of Common Pleas Judge Arthur Tilson, who is being represented by William T. Hangley of Hangley Aronchick Segal Pudlin & Schiller.

The named defendants in both cases are Governor Tom Corbett, Court Administrator Zygmont A. Pines and Pennsylvania Secretary of State Carol T. Aichele, who had initially removed the litigation to federal court, where the claims of four other judges await judgment.

They have argued that the retirement age violates their rights under Article I of the Pennsylvania Constitution.

The plaintiffs have also argued in briefs to the Supreme Court that there are other constitutional mechanisms and judicial administrative rules that allow for the removal of mentally incapacitated judges of any age.

The judges also are asking the Supreme Court to overturn prior precedent in the 1989 decision of Gondelman v. Commonwealth, in which the court rejected a similar challenge to mandatory retirement.

Corbett and Aichele had removed all of the challenges to federal court, and four of the plaintiffs stayed there by challenging mandatory retirement under the federal Constitution.

Those judges include Philadelphia Court of Common Pleas Judge John W. Herron, administrative judge of the trial division, and Philadelphia Court of Common Pleas Senior Judge Benjamin Lerner, who oversees the homicide program. Northampton County Court of Common Pleas Judge Leonard N. Zito, administrative judge of criminal cases, as well as Fayette County Court of Common Pleas Judge Gerald Solomon in a separate lawsuit, must also prosecute their claims under the U.S. Constitution in federal court.

Another lawsuit brought by Commonwealth Court Senior Judge Rochelle S. Friedman, who had to take senior status at the end of 2008, and Bucks County Court of Common Pleas Judge Alan M. Rubenstein, who would be forced into retirement at the end of 2016, will stay in Commonwealth Court, their counsel has told The Legal.

The high court’s decision could have an impact on its very composition, because four of the six justices who are currently sitting are set to reach the age of 70 in the next six years: Chief Justice Ronald D. Castille and Justices Max Baer, J. Michael Eakin and Thomas G. Saylor.

Under current law, Castille turns 70 and would reach mandatory retirement next year, Saylor in 2016, Baer in 2017 and Eakin in 2018.

Trial by Formula?

In Braun v. Wal-Mart Stores and Hummel v. Wal-Mart Stores, the court agreed to hear whether a $187.6 million class action award against Wal-Mart over allegations that its Pennsylvania employees were not properly compensated for off-the-clock work and missed rest breaks violated Pennsylvania law.

The court granted allocatur on “whether, in a purported class action tried to verdict, it violates Pennsylvania law (including the Pennsylvania Rules of Civil Procedure) to subject Wal-Mart to a ‘trial by formula’ that relieves plaintiffs of their burden to produce classwide ‘common’ evidence on key elements of their claims.”

The award in the two cases, which are set to close the argument session as the last cases Wednesday, represents the largest class action verdict in Pennsylvania history.

Last year, the state Superior Court upheld the award, while determining that attorney fees needed to be recalculated.

While Wal-Mart argued in the Superior Court that the proof offered by the class only showed individual proof, not classwide proof, the intermediate appellate court said that the commonality of the class was demonstrated through Wal-Mart’s own business records to show that class members missed breaks, had too few breaks or had their breaks truncated. Wal-Mart had argued that individual employees would have to be questioned to determine if they were forced by managers to work through or truncate their breaks.

Actual Prejudice for Auto Insurer?

In taking up Vanderhoff v. Harleysville Insurance, also set to be argued Wednesday, the justices have a chance to determine what constitutes “actual prejudice” that would relieve an insurer of its duty to indemnify an insured.

Namely, the justices have agreed to take up the questions of whether actual prejudice should require an insurer to prove a material impairment to its ability to investigate and defend an uninsured claim as well as what constitutes a reasonable basis for a trial court to find prejudice in a case where the existence of a phantom vehicle was reported late.

In February of last year, after what it called “a long and tortuous path” for the litigation, the state Superior Court ruled in the case that an insurer was prejudiced by an insured’s failure to timely notify it that a phantom vehicle had been involved in an accident before filing a claim for uninsured motorist benefits.

A three-judge panel reversed the ruling of Lewis W. Wetzel, a former Luzerne County Court of Common Pleas interim judge, who, on remand from the state Supreme Court, had found that defendant Harleysville Insurance Co. failed to prove prejudice.

Writing for the court, Judge Jack A. Panella said that because Wetzel’s one-and-a-half-page opinion did not provide a “distinct rationale” for his ruling, it must be concluded that the trial court adopted plaintiff Forester Vanderhoff’s argument that Harleysville failed to show prejudice because it could not show how the evidence it might have gathered during a timely investigation would have altered the outcome.

But Panella called Wetzel’s reliance on that argument “a clear abuse of discretion, as it does not comport with reason.”

Admissibility of Videotaped Statement

Also Wednesday, lawyers are set to argue over whether a young girl’s videotaped statement that her father sexually abused her should be corroborated to be admitted in court.

The justices granted allocatur last October in the case of In re E.A. to review whether a 4-year-old’s testimony alleging that her father performed numerous sexual acts on her — captured as a DVD interview with a New York State Police officer — was an “exceptional case” where uncorroborated hearsay was solely sufficient to find abuse had taken place. The Commonwealth Court, reversing a Pennsylvania Department of Public Welfare decision to allow the interview as evidence in court, has said it was not such a case.

The high court, in an order granting allocatur, also said it would decide whether the taped statement was inadmissible because an administrative law judge heard testimony about the recording before viewing it in camera.

The department petitioned the high court to hear the case and Wyoming County Human Services has intervened.

The department’s Bureau of Hearings and Appeals had denied the request of the father, referred to as R.A., to expunge a report that he sexually abused his daughter, E.A., now 7. By admitting the DVD, R.A. argued on appeal, the bureau had violated his constitutional right to confront his daughter about the details of a case the girl’s mother brought in 2009.

Also on The Docket

On Tuesday, the justices are scheduled to hear the separate appeals of Johnson & Johnson and Bristol-Myers Squibb in the case of Commonwealth v. TAP Pharmaceutical Products.

Commonwealth Court Judge Robert E. Simpson Jr. presided over the trials in Pennsylvania’s suits against pharmaceutical companies for overcharging the state for prescription drug reimbursements; Simpson denied post-trial motions from both the state and two drug companies in September 2011. Simpson left intact the bench verdicts against the two drug companies. The verdicts totaled nearly $80 million.

In ruling on the motions, Simpson denied the state’s appeals in regarding jury and bench verdicts issued separately against Bristol-Myers and Johnson & Johnson. He also denied the post-trial motions raised by the two pharmaceutical companies.

According to the grant of allocatur in Pennsylvania National Mutual Casualty Insurance v. St. John, the court agreed to decide whether the “multiple trigger” theory of liability insurance coverage, as previously adopted by the court, applies to cases presenting “continuous, progressive ‘property damage,’ so that all policies on the risk from exposure to the harmful condition through ‘manifestation’ of the injury are triggered.”

That case is also scheduled for Tuesday.

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