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Posted by on Oct 6, 2017 in Civil, Insurance | 0 comments

Burke v. Independence Blue Cross: Legislature intended autism treatment to be offered in schools

The Autism Coverage Law requires insurance companies to provide coverage for autism treatment under certain group plans. One coverage specifically included in the statute is “applied behavioral analysis” (“ABA”). However, the statute allows companies to maintain “general exclusions or limitations of a health insurance policy.” ABA is defined as:

the design, implementation and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior or to prevent loss of attained skill or function, including the use of direct observation, measurement and functional analysis of the relations between environment and behavior.

Independence Blue Cross denied ABA coverage at Anthony Burke’s school, arguing that the policy’s general “place-of-services” exclusion permitted them to decline delivery of otherwise-covered services at a location other than the doctor (in this case, the school). But of course, ABA coverage is most obviously needed in a school setting. What autistic child needs “environmental modifications” at the doctor?

Burke’s father argued that this exclusion operated to exclude ABA services at the main place where they are truly needed for Anthony in contravention of the General Assembly’s legislative intent in passing the Autism Coverage Law in the first place.

Majority by Saylor: Autism Coverage Law is materially ambiguous

Chief Justice Thomas Saylor, speaking for the 4-1 majority, holds that the Autism Coverage Law is “materially ambiguous in relevant aspects.” The holding is discussed more in a moment, but the ambiguity allows the Court to conclude the statute was incomprehensible without looking behind the statute to legislative intent. Simply put, “the Legislature did not intend to permit exclusions that would eviscerate aspects of the coverage for autism treatment services that the Assembly has provided are mandatory.” Thus, our Supreme Court held “that the Legislature intended to permit only general exclusions that would not substantially undermine the mandatory coverage requirement.”

In other words, in passing a general rule that insurance providers must provide autism treatment, and by explicitly including ABA treatment in the statute, the legislature did not envision allowing insurers to escape this mandate by simply providing a general exclusion that ABA couldn’t be provided at the place it was primarily needed. “[W]e simply do not believe that the Legislature intended to permit insurers to exclude coverage in the sensory-laden educational environment where children spend large portions of their days, or to require families to litigate the issue of medical necessity discretely in individual cases to secure such location-specific coverage for the treatment.”

With this holding in mind, we return to the ambiguity justifying the Court’s foray into legislative intent: the Court held that the statute’s “catchall” provision was oddly worded, and appeared to be internally inconsistent. (“Coverage under this section shall be subject to copayment, deductible and coinsurance provisions and any other general exclusions or limitations of a health insurance policy or government program to the same extent as other medical services covered by the policy or program are subject to these provisions.”) The “any other exclusions” language appeared to the majority to be a reference to an entirely different style of exclusions than the foregoing language (the legal doctrine for this argument is ejusdem generis), and the statute’s apparent confusion led the Court to conclude it was irreconcilable without looking behind the statute to legislative intent. Thus, Anthony Burke’s ABA treatment must be covered by Independence Blue Cross at his school.

Dissent by Mundy: What ambiguity?

I rearrange the majority’s analysis above to end on the point which Justice Mundy dissents on. The statute, though perhaps oddly worded, appears to be fairly unambiguous. The legislature certainly could have “indicated that coverage for in-school services was mandatory, but it did not do so,” as the majority admits. Justice Mundy believes the statute is devoid of any confusion. The statute “plainly permits a health insurance provider to apply a general exclusion of its health insurance policy to limit the coverage mandated by” the Autism Coverage Law. Therefore, because “the words of a statute are clear and unambiguous, there is no need to look beyond the plain meaning of the statute ‘under the pretext of pursuing its spirit.’” (quoting 1 Pa.C.S. § 1921(c)).


This case really appears to be a situation where the majority reached behind the statute without any real ambiguity. I read the section on ejusdem generis several times, and I just can’t follow why the majority felt the statute was unclear. The phrase in question may have been strange, but it doesn’t appear to be ambiguous. Furthermore, while going behind the statute is discouraged absent the existence of an ambiguity, the Court still could have ruled that the statute was frustrated by the exclusion without finding an ambiguity.

Justice Mundy calls the Court on its analysis—and the majority admits some reticence in its ruling in its final footnote (admitting “reluctance to accord too much weight to the statute’s  allusions to [] coordination” with schools’ individual education plan supervisors over ABA treatment on the basis that the legislature could have made it clearer that such coverage is required to be offered in schools).

This case should probably prompt legislative action either way. Was this the legislature’s intent? The statute can be clarified if the legislature doesn’t agree with the ruling, and ultimately, that would be a good use of the Assembly’s time.

One final note on the vote count: Justices Todd and Wecht did not cast votes, and Justice Wecht did not participate in consideration of the case.

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Posted by on Sep 29, 2017 in Admissibility, Civil, Rules of Evidence | 0 comments

Coughlin v. Massaquoi: No per se Requirement for Corroborating Evidence before BAC is admissible in a civil case

When is blood alcohol content (BAC) admissible in a civil case to prove negligence (including contributory negligence)? In the context of a car accident, the Supreme Court of Pennsylvania has previously held that “the word drinking . . . carries the inevitable connotation of considerable drinking,” Harvey v. Doliner, 399 Pa. 356 (1960), and that courts must be careful to weigh the prejudice resulting from such connotations against the relevance of the evidence under Pennsylvania Rule of Evidence 403. The Superior Court has taken this ruling to mean that BAC is only admissible in a civil negligence case where there is some other, independent evidence of intoxication as a threshold matter to support admissibility of the BAC.

On the night of January 13, 2012, Ummu Massaquoi was traveling southbound on Castor Avenue in northeast Philadelphia (home of the short-lived Liberty County Secessionist Movement) struck Thomas Coughlin, a pedestrian that Massaquoi did not see in an intersection and killed him. The autopsy revealed that Coughlin had a BAC of .313 (for comparison’s sake, with a BAC of .08, it is illegal to drive) and trace amounts of illegal substances in his system. There were no other witnesses to the accident, and no other evidence regarding Coughlin’s drinking or other actions that night.

Coughlin’s estate moved to preclude the admission of BAC on the idea that the introduction of this evidence would prejudice the jury against Coughlin. The trial court denied the motion, and Massaquoi was permitted to put on expert testimony about the effect that a BAC of .313 would have on coordination and judgment. The jury found Massaquoi negligent, but found that her negligence was not the proximate cause of Coughlin’s death.

Majority by Todd: BAC and expert testimony are relevant to contributory negligence of the plaintiff

Justice Debra Todd, writing for the majority, ruled that the admissibility of BAC in a civil case is analyzed just like any other piece of evidence. Pennsylvania Rule of Evidence 402 asks if the evidence is relevant. If it is, then it is analyzed under rule 403: does its relevance outweigh any potential prejudice to the party against whom it is offered?

Considering this two-part analysis, the majority has no trouble ruling that a pedestrian’s blood alcohol level is directly relevant to whether he may have played a part in the negligence that brought about his death. But the word “drinking” carries a high risk of prejudice, as the Supreme Court held in Harvey, and so a trial court should only admit evidence of intoxication if it reasonably shows intoxication.

While recognizing that the mere introduction of BAC at a trial has the potential to confuse the jury, the Supreme Court rejected the standard of the Superior Court in requiring evidence from another source before admitting BAC. Rather, “the admissibility of BAC evidence is within the trial court’s discretion based upon general rules governing the admissibility of evidence and the court’s related assessment of whether the evidence establishes the pedestrian’s unfitness to cross the street.”

This latter term—the pedestrian’s unfitness to cross the street—is emphasized in the majority opinion. The Court uses this term as a sort of stand-in for the term “relevance.” In other words, proof of drinking, or proof that the pedestrian was a drunk, is prejudicial. Proof that his consumption of alcohol that evening may have made him stagger out into the street negligently is relevant. Where, as in the present case, an expert witness was offered to the jury to explain the effects of alcohol upon the pedestrian’s unfitness to cross the street, the Court found “the probative value of such evidence outweighs its potential for unfair prejudice.”

Concurrence by Donohue: The Majority Opinion should be read in light of the facts

Justice Christine Donohue concurs, writing however that the Court’s opinion “is not tethered to any discussion of the facts of this case,” and that the opinion should not be read broadly. Only where the facts support a finding of intoxication—and not merely where one could speculate from BAC as to the pedestrian’s intoxication—should the trial court admit the evidence.

Dissent by Mundy: Other Evidence of Intoxication Should be Required

Justice Sally Mundy briefly dissents, arguing that independent evidence of intoxication—an eyewitness who saw the pedestrian staggering, “or other evidence of his behavior or demeanor,” should be required before the admission of evidence as to intoxication. Admitting BAC level without solid evidence about what happened “in a poorly lit area at night” only “invites speculation on the part of the jury.”

Conclusion: BAC is just like everything else

The simplest takeaway from this case is that BAC evidence is just like any other kind of evidence in a civil negligence case. It can be admitted if it clears the hurdles of 402 and 403. Although the Court doesn’t explicitly say so here, where the BAC is high, it is more likely to be relevant. Where evidence exists to actual drunkenness, or where evidence shows the party’s response times were slowed, admission of BAC is a virtual lock. And where there is no corroborating evidence, the party seeking admission is not without hope.

The odd part of the majority’s opinion is called out in both the concurrence and the dissent (see footnote 3 of Mundy’s dissent, for example). The majority relies on the expert’s opinion to bolster their conclusion. But why should a jury be less confused just because an expert testified? The underlying evidence challenged was the basis for the expert’s testimony.

Regardless, the Supreme Court of Pennsylvania’s ruling in Coughlin v. Massaquoi clearly puts BAC evidence on part with other types of evidence, and its admissibility rests in the sound discretion of the trial court.

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Posted by on Sep 29, 2017 in Civil, Recusal | 0 comments

Lomas v. Kravitz: Motion for Recusal should be made immediately, if not sooner

The Pennsylvania Supreme Court ruled in Lomas v. Kravitz that a motion for recusal must be made as soon as the facts on which the motion is based come to light, or be forever barred.

James Kravitz breached a contract with Roy Lomas in Montgomery County (home of the largest mall in the United States) and had judgment of more than $200,000 entered against him. Lomas was represented during this time by a lawyer who is now Judge Branca of the Montgomery County Court of Common Pleas. For the next 25 years, Kravitz played cat and mouse with Lomas, leading to a lawsuit alleging Fraudulent Conveyance and attempting to pierce Kravitz’s various corporate veils. The Montgomery CCP entered judgment in Lomas’s favor, yet again, and set a hearing on damages, where Judge Branca testified regarding the reasonableness of his attorneys’ fees.

What should have been a routine line of questions got interesting, however, when Judge Branca revealed on cross-examination that he had an ongoing financial interest in the case in the form of a contingent referral fee, and that he had been in fairly routine communication with Lomas’s current trial counsel. Thirty-nine days later, Kravitz filed a motion to recuse the entire Montgomery CCP bench on the theory that any of them would be inclined to rule in favor of Lomas, given that their fellow Judge Branca stood to benefit from the outcome of the case.

This case’s tortured history includes an en banc split 4-4 at the Superior Court, which opinion was appealed and accepted by SCOPA for review.

Majority by Baer: What took you so long?

Judge Max Baer writes for the 4-1 majority and notes that it is well settled in Pennsylvania law that a motion for recusal “requires a party seeking recusal or disqualification to raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred.” (quoting Goodheart v. Casey, 523 Pa. 188 (1989)). Recusal decisions are reviewed by appellate courts on an “abuse of discretion” basis, and will only be reversed “where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record.” (quoting Zappala v. Brandolini Prop. Mgmt., Inc., 589 Pa. 516 (2006).

Declining to set the precise moment at which trial counsel should have moved for recusal, the majority holds that his failure to so motion 1) immediately during cross-examination upon learning of the grounds for recusal, 2) at the close of the hearing, or 3) within the 30 days granted by the trial court for review of certain documents, fails the required timeliness standard. In addition, though unstated by the Court, one senses the length of time this matter has dragged on suggests that trial counsel had plenty of time to discover the facts that would have given him grounds for a motion of recusal.

Dissent by CJ Saylor: I would adopt the federal rules

Chief Justice Saylor dissents, arguing that the case presents “an appearance of impropriety,” and that the submission of trial counsel’s motion was not late. The Chief Justice says a motion for recusal should be made with “care and good faith,” and should only be offered in rare circumstances by counsel. The Chief Justice further suggests adoption of the federal rules’ 4-part test to determine the appropriateness of recusal. The majority responds to this latter point in their final footnote, stating, “we are circumspect to adopt and apply a new test in this case, particularly when the parties offer no advocacy in this regard.”

Conclusion: Recusal is always a long-shot

A few clean-up notes: Justices Donohue and Wecht did not participate in the case, and with a Superior Court judge’s non-participation, that makes three judges who did not participate in the case. Unfortunately for Kravitz, the one judge who will still be participating is the trial judge below, and there may be no place more uncomfortable for a litigant than standing before the judge that you attempted to force recusal on.

Recusal is always a long-shot. The Supreme Court’s opinion makes clear in this case that it will only reverse for a clear abuse of discretion, the highest standard of appellate review in Pennsylvania. Judges also may be circumspect to question each other, and such motions are generally disfavored. But when the motion is appropriate, it must be made immediately and without delay to avoid forfeiture.

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Posted by on Sep 29, 2017 in Civil, Insurance | 0 comments

Rancosky v. Washington Nat’l Ins. Co: Terletsky standard prevails for bad faith claims

The Pennsylvania Supreme Court adopted the Superior Court’s Terletsky v. Prudential Property & Cas. Ins. Co. standard for determining bad faith, ruling that no evidence of ill-will is required, nor is there a heightened leval of malice necessary for a finding of punitive damages under the 42 Pa.C.S. § 8371.

LeAnn Rancosky purchased a cancer treatment insurance policy from Washington National Insurance Company (which presumably has no connection to the baseball team that shares its name). A provision of the policy provided that, if she ever became disabled due to cancer, she could cease paying premiums on the policy and still collect the benefits of the policy, provided she submitted several documents. She did become so disabled, and submitted the documents, and stopped paying premiums (as permitted by the policy). Unbeknownst to Rancosky, her doctor made an error on a form, erroneously setting her disabled date to several months after she was disabled and ceased paying premiums.

Months went by, and Washington National failed to respond to multiple inquiries on her claim status. Rancosky gave Washington National multiple opportunities to speak with her doctor, employer and any other third party necessary to confirm her status. Finally, Washington National simply denied her ongoing treatment on the basis that she had ceased paying premiums, despite the policy language allowing her to take this course of action. Rancosky filed a “bad faith” claim under § 8371, which reads as follows:

Actions on insurance policies

In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.

(2) Award punitive damages against the insurer.

(3) Assess court costs and attorney fees against the insurer.

Id. A major dispute in this case is a major point of contention in most bad faith claims: must a plaintiff prove the insurance company had a motive of self-interest or ill-will to prevail in her claim, or is a showing of disregard of a duty under the contract sufficient?

 Majority by Baer: Terletsky Standard Prevails

The majority, speaking by Justice Max Baer, finds that the plain language of the statute had precious little to say about the standard of ill-will required. Relying on a past SCOPA case that ruled that the bad faith statute was a “delayed legislative response to this Court’s 1981 decision in D’Ambrosio v. Pennsylvania Nat’l Mut. Cas. Ins. Co., 494 Pa. 501 (1981),” the Court reiterated that the best way to divine legislative intent in regards to the bad faith statute was to look at the Supreme Court case that declined to recognize bad faith under Pennsylvania law.

The majority opinion is written as a comprehensive examination of bad faith law, taking lengthy detours through the first opinions to recognize bad faith as a right of action in tort under California law, and the subsequent refinements of the standards of proof in a Wisconsin case. Ultimately, however, Justice Baer points back to SCOPA’s own caselaw, examining the denial of a common law right of action in D’Ambrosio, and the calls in that case for the legislature to consider passing a right of action where SCOPA felt it unwise to act.

Ultimately, the statute passed, and was interpreted by the Superior Court as early as 1992 to include a two part test. In order to recover in a bad faith action, the plaintiff must present clear and convincing evidence 1) that the insurer did not have a reasonable basis for denying benefits under the policy, and 2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis. Thus, the proof of an insurance company’s motive of self-interest or ill-will, which the Defendant in this case demanded, is not a prerequisite to prevailing in a bad faith claim under § 8371, but may be relevant to satisfying the second prong. Furthermore, the Court ruled, evidence of the insurer’s knowledge or recklessness as to its lack of a reasonable basis in denying policy benefits is sufficient to prove this second prong.

Secondly, the Court turned to the question of punitive damages, which usually require a heightened level of proof of recklessness under Pennsylvania law. Recognizing that the statute placed the three remedies on par with one another, the Court ruled that the General Assembly intended punitive damages to be equally available as a remedy. Indeed, though the majority does not mention it, even the positioning of punitive damages between the other two remedies demonstrates that the legislature did not view it as an extraordinary remedy.

Concurrence by Wecht: Evidence of Ill-will is rare

Justice Kevin Wecht concurs in the result, but notes that the inability to find evidence of ill-will will be common. “[S]uch strains of overt malfeasance often will be lacking and, in any event, will seldom be susceptible to establishment by competent proof of record.”

Concurrence by CJ Saylor: But direct evidence is always rare

Chief Justice Thomas Saylor writes the second concurrence, which is unusual in itself as the concurrences are normally placed in order of seniority. Presumably because the Chief Justice did not join the opinion in full, his thoughts come last. Noting his general approval of the holding, the Chief Justice adds two helpful insights. Observing that “inferences regarding intent are legitimately and regularly drawn from circumstantial evidence (including actions and inaction) in other contexts, including in the criminal law,” the Chief Justice would find that circumstantial evidence can be used, but that a finding of some sort of ill-will and recklessness should be required for a finding of bad faith. His second observation is that punitives generally require a proof of “malice,” and that federal constitutional jurisprudence under the due process clause is implicated where punitive damages come into play.

Conclusion: Bad Faith is a two-part test

The law doesn’t change in this area, but it is confirmed. For a quarter century, Pennsylvania has lived under a two-part analysis of bad faith, and that analysis remains. But the test is now confirmed by the Commonwealth’s highest court, and there will be no further concerns that the law could change tomorrow. If any fault is to be found in this opinion, it is the excessive reliance on other sources. Incorporating by reference an opinion from Wisconsin (but not all of it), and insistently attributing to the General Assembly the motive of responding to a Supreme Court case from ten years earlier without any supporting documentation, the Court takes a fairly straight-forward statutory analysis case and imbues it with a load of scholarly references that make this area of law a bit muddy. Regardless, the test for bad faith is now clear, and overall, this opinion is a welcome clarification.

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Posted by on Jul 25, 2017 in Civil, Statutory Construction | 0 comments

Blake v. State Civil Service Commission: “Soldier” under state hiring preference law may not mean the same thing as it does to the Department of Defense

In Blake v. State Civil Service Commission, the Pennsylvania Supreme Court ruled that a West Point cadet who did not complete his training is not a “soldier” entitled to hiring preference under Pennsylvania’s Veterans’ Preference Act.

Scott Blake spent a year and a half as a cadet at West Point. He took an oath of service, had the rank of cadet, went through basic training, but ultimately transferred his credits to another school before the two-year mark, after which a West Point cadet who does not complete his service must pay back his tuition and serve as an enlisted man.

When applying for civil service jobs, Blake checked the box saying he was a veteran. The Civil Service Commission denied his eligibility because he never served in active duty. Blake appealed this decision, arguing that he had “honorable discharge” papers from the Department of Defense, and that he was ranked a “cadet” by the US Army.

Majority by Donohue: Purpose of Pennsylvania’s Veterans’ Preference Act is to aid those who served their country in military service

Justice Donohue, writing for the unanimous Court, rebukes Scott Blake for attempting to obtain a benefit reserved for those who have served in the military. The Court dismisses, out of hand, Blake’s references to federal statutes variously defining him as a service member, pointing out that the federal government’s statutes do not give the key to the Pennsylvania General Assembly’s legislative intent. Pennsylvania law may consider, but is not bound by federal government designations of veteran and “soldier” status.

The difference in terminology and purpose of the federal and state statutes demonstrates that a determination under one does not necessarily mean the same thing under the other.

The Court goes on to consider the legislative history of the statute, showing that the General Assembly was concerned about situations where national guardsmen returned from tours of active duty in Afghanistan, but were not eligible for the benefits of veterans under the Act. The General Assembly added clearer qualifications showing that those released from “active duty” under “honorable conditions” qualified under the Act for preferential treatment.

But a trainee who never even completed his training was not qualified under the Act. Blake’s time at West Point was not military service on behalf of his country qualifying him for preference. “Because he left before a service obligation accrued, Blake never obligated himself to serve his country, either as a commissioned officer or at an enlisted rank.” Quoting the words of the statute back at Blake, the Court concludes:

In fact, “for the preservation of his country,” he never undertook to perform any military service following his eighteen months of training at West Point. . . . Blake went to college. He did not serve in the armed forces of the United States, and thus he is not a “soldier” as that term is defined in 51 Pa.C.S. § 7101. He is not entitled to receive a veterans’ preference when applying for civil service jobs in this Commonwealth.


The Court is rarely this openly antagonistic toward a party. Blake’s suit simply rubbed them wrong, perhaps coming off as a form of stolen valor. The case is interesting for its unaddressed constitutional implications. Blake is a former service member under federal definitions (there is some dispute as to what he is under federal statutes, but it does appear that his year and a half are “military service” at least in some respects to the federal government). Yet, the Commonwealth of Pennsylvania does not reward this type of service, while it does reward others.

Since the United States Constitution in Article I, § 8 grants Congress and the states differing spheres of influence when it comes to organizing and training state militias, it seems the state’s preference rules for its own national guardsmen would withstand scrutiny. But what if the Commonwealth decided tomorrow that members of the Army could have preferential status, but not members of the Navy? Would this survive constitutional scrutiny? Would federal statutes control then? Could Congress “occupy the field” of veteran benefit regulations such that states could not restrict to whom they give preferential status? These questions are not vexing in this case, as Blake is clearly on the “low end” of military experience. But future cases may test the limits of state power in offering benefits to some but not all veterans.

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Posted by on Jul 8, 2017 in Civil, Right to Know | 0 comments

PSP v. Grove: Motor Vehicle Recordings are not exempt from disclosure under Right to Know law

In Pennsylvania State Police v. Grove, the Supreme Court of Pennsylvania rules that Motor Vehicle Recordings are not exempt from the disclosure requirements of the Right to Know Act, and that they could not be withheld under the Wiretap Statute or CHRIA.

Motor Vehicle Recordings (MVRs) are recordings made by a police car’s dashboard camera, typically when the lights and siren are activated. Michelle Grove, a concerned private citizen, requested MVRs that captured investigation in the aftermath of an accident that she had observed. The record is “not clear” as to Grove’s motivation for trying to obtain the records of the accident, but she apparently became curious or concerned about the nature of the Pennsylvania State Police (PSP)’s investigation at the scene of a traffic accident where minor traffic citations were issued.

The Right to Know (RTK) Act broadly requires Commonwealth agencies to disclose various documents within their possession at the request of a citizen. 65 P.S. § 67.301. Exceptions to this broad duty of disclosure exist, of course, and two such exceptions are for “audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings,” Section 708(b)(18)(i), and “criminal investigative records” under Section 708(b)(16). PSP denied Grove’s RTK requests, citing these exceptions, as well as the Criminal History Record Information Act (CHRIA).

Majority by Dougherty: Whether an MVR is a criminal investigative record is a case-by-case determination

Justice Kevin Dougherty, writing for the 5-2 majority, holds that MVRs are public records and therefore generally subject to disclosure under RTK requests. Exceptions should be construed narrowly to effectuate the general intent of the statute, “which is to empower citizens by affording them access to information concerning the activities of their government.” (quoting SWB Yankees LLC v. Wintermantel, 615 Pa. 640 (2012)). Any exception, including the exception for investigative materials, must be determined on a case-by-case basis.

The burden is on the Commonwealth agency to justify non-disclosure by a preponderance of the evidence. PSP’s position that MVRs are “generally exempt” would impermissibly shift this burden to the requestor to show that PSP would not be burdened. The legislature’s intent to keep RTK a broad power is underscored by the legislature’s recent expansions of RTK, and PSP, like other Commonwealth agencies, must comply.

In the present case, “The video depiction presents nothing more than what a bystander would observe.” The videos did not reveal the accident as it unfolded, and “the fact and nature of the Vehicle Code violations could not have been garnered from the video-only aspect of the MVRs.” Indeed, PSP conceded that “the only potentially investigative information consisted of the verbal statements captured on Trooper Thomas’s MVR,” which were ordered redacted by the Commonwealth Court, which neither party argued to overturn at SCOPA.

But PSP had one more argument up their sleeve in the case—RTK does not require an agency to create a “new record.” In other words, if in order to comply with an RTK request, an agency would have to redact documents so heavily as to actually compile an entirely new record, the agency can deny the request on the basis that it requires them to create something rather than disclose a document they already have. The majority wastes no time rejecting this argument in this case. All that was required here was the redaction of some audio from the MVRs—a task easily accomplished without great expenditures of labor on behalf of PSP.

The Court goes on to hold that the Wiretap Statute is not violated by the capture of oral conversations in which no privacy interest reasonably existed. The conversations were made with no expectation of privacy to investigating officers at the scene of an accident. The conversations were in public, overheard by other bystanders (including Grove), and any sensitive portions had already been agreed to be redacted from the audio. Therefore, the Wiretap Statute is not violated.

Concurrence by Wecht: Wiretap Act jurisprudence should be re-examined

Justice Wecht concurs in the result, but writes separately to argue that the Court should re-examine our interpretation of the Wiretap Statute in a future case. The Court’s jurisprudence in the past has impermissibly collapsed statutory and constitutional analysis into a singular consideration. An individual’s “privacy interest” in the content of the conversation in question, in other words, should not be relevant in determining whether capturing someone’s conversation was prohibited by the Wiretap Statute. Nonetheless, the precedents are good law at the moment, and were correctly applied to this case.

Dissent by Saylor: the exception in question here is for anything “related to” a criminal investigation

Chief Justice Saylor dissents, joined by Justice Mundy, writing that the term “related to” criminal investigation in the RTK Act is broader than the majority allows. The balance between the need for secrecy and confidentiality in criminal investigations and the public’s right of access is a delicate consideration. “[T]he appropriate balance among such important interests is a matter most closely suited to determination by the political branch, which, for the present at least, has designed a broad criminal-investigations exception to public access extending to MVRs.”

Dissent by Mundy: Police investigations should be exempt from disclosure

Justice Mundy reiterates Chief Justice Saylor’s argument that the term “related to” should be read more broadly, and that she would be satisfied with a showing that the video was recorded during an investigation, regardless of the content it captured. Her view would hold something closer to a per se rule that, once on the scene of an investigation, what is capture by MVRs is within a criminal investigation file exempt from disclosure. “Having accepted that Troopers Thomas and Vanorden engaged in a criminal investigation upon arriving at the scene of the accident, the MVRs’ record of the steps the officers took, the persons they spoke with, and the state of the scene they encountered became a record related to that investigation.”

Conclusion: Implications for body-cams, cell phones, the First Amendment

This case strikes me as the most important of the term. Yes, other cases have received more hype, but Grove will be remembered and cited to obtain access to surveillance video, MVRs, and most crucially, body-camera footage from officers. These videos have already had a profound impact on the public’s understanding of police work, and have shown horrifying images in cases such as the Philando Castile slaying by an officer in Minnesota. RTK requests will proliferate, and as this case makes clear, the requestor need not have a personal or obvious interest in the matter, they need only be a concerned citizen.

This case should be read in conjunction with the 3rd Circuit case, Fields v. City of Philadelphia, which held that citizens have a First Amendment right to record police actions, even when they don’t yet know if they’re going to use the video or post it anywhere. As technology changes, the citizen’s right to access the substantial recordings made of their own daily activities by police and other agencies is leading to growing concern that our privacy is under assault. In this case, as well as in Fields, the courts are ruling that the people have the power to turn government surveillance power into a government liability. They more they record, the more we potentially have access to.

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