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Posted by on Jan 31, 2018 in Uncategorized | 0 comments

Com v. Wholaver: PCRA death penalty appeal yields nothing of interest

The unanimous Court rejected the arguments of a PCRA petitioner in Com v. Wholaver. As regular followers of the Court are aware, all death penalty cases result in a direct appeal to the Supreme Court of Pennsylvania, even on collateral review. These cases often yield little of interest to the practitioner, and this case is such an example.

Wholaver challenged his conviction for murder on eleven different grounds, including inadequate assistance of counsel, a Brady violation, prosecutorial misconduct, striking a juror for cause, hearsay, and “corrupt and polluted source” instructions. Justice Baer does the yeoman’s work of laying out the exhaustive(ing?) arguments of the petitioner in this case, and reviews the law in each of these areas.

The “corrupt and polluted source” claim is the most interesting: where a conspirator to a crime is called at trial, the defendant may request an instruction to the jury explaining the unreliability of the testimony of a conspirator to the crime. Here the Court notes that the trial judge’s instructions on how to weigh credibility included discussion of plea deals of a witness discussed in evidence, and finds no error.

As always, this case is important as it reflects the Commonwealth’s dedication to ensuring that no one is wrongly convicted of murder; unfortunately, the opinion offers little beyond that in this case.

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Posted by on Jan 18, 2018 in Uncategorized | 0 comments

Gerrymandering Oral Argument Roundup 1-18-18

Our roundup is all about Gerrymandering today.

The Allentown Morning Call covers the oral argument and provides quotes from political operatives on both sides. The Philly Inquirer gives a balanced look at the lawsuits possible outcomes. Reuters tacitly predicts a win for the League of Women Voters challenging the map, and HuffPost agrees. PennLive notes that it doesn’t matter whether the onlooker likes the congressional map or not; the suit turns on whether the constitution is implicated. As far away as Bryan, Texas (home of “The Good Life, Texas Style”), The Eagle picks up an AP story on the potential impact of our State Supreme Court’s ruling on the SCOTUS case still pending.

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Posted by on Oct 19, 2017 in Uncategorized | 0 comments

City of Arnold v. Wage Policy Comm. Of Arnold Police Department: Hey Arnold! We’re going to Arbitration

A police widow in Arnold, Pennsylvania (home to Mr. Roger’s Neighborhood Musical Director, Johnny Costa), received 50% of her husband’s pension for several years before a helpful state auditor caught the “mistake.” The city sent her notice of the change, and informed her that her pension would be cut down to 25%, and that the city would graciously enforce a loan repayment plan on the widow in the amount of $10 a month out of her new, lower pension.

The police union filed a grievance, and litigated the matter before an arbitrator, who entered an award on behalf of the widow. The City appealed, arguing the arbitrator lacked subject matter jurisdiction (“SMJ”), despite the fact that their Collective Bargaining Agreement (“CBA”) specifically incorporated pensions disputes by reference.

The Supreme Court held in City of Arnold v. Wage Policy Comm. Of Arnold Police Department that an arbitrator has subject matter jurisdiction for a pension dispute where pensions are incorporated by reference into the governing CBA pursuant to the provisions of Act 111.

Majority by Mundy: Arbitration is Called for under the Act, and the CBA incorporates the pension dispute

 Justice Mundy writes for the majority and lays out the statutory and constitutional background for a CBA: Pennsylvania’s Constitution authorizes the legislature to “enact laws which provide that the findings of panels or commissions, selected and acting in accordance with law for the adjustment or settlement of grievances or disputes or for collective bargaining between policemen and firemen and their public employers shall be binding on all parties.” Pa. CONST. Art. III, § 31. One wonders why such a specific grant of power is necessary in our state constitution, as general grants of power seemingly already made this possible.

Regardless, the legislature followed up, enacting “Act 111,” which regulates CBAs between police and firefighters and the municipalities they serve. Act 111 specifically provides for arbitration of disputes between the parties, and SCOPA caselaw has already ruled that the act is “viewed broadly” to “encompass any subject that is rationally related to the ‘terms and conditions of employment.” City of Arnold, citing Int’l Ass’n of Firefighters, Local 22, 999 A.2d at 564 (Pa. 2010).

Conclusion: This isn’t likely to come up all that often

 This case only bolsters what was already fairly clear in SCOPA caselaw: arbitration is preferred and strongly enforced when it comes to disputes over public CBAs. A city that drafts an agreement with a union should be careful about the “incorporation” language, but that should have been fairly obvious. In the end, this case stands for the unremarkable proposition that you should not incorporate by reference a document into an arbitration agreement unless you are willing to arbitrate over the agreement you’ve incorporated.


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Posted by on Apr 27, 2017 in Uncategorized | 0 comments

City of Allentown v. Int’l Ass’n of Fire Fighters Local 302: Minimum staffing is not managerial prerogative

In order to facilitate efficient and final labor agreements for public entities, Pennsylvania’s Act 111 provides for binding arbitration where an impasse in negotiations is reached. Such arbitration award can only deal with matters rationally related to the terms and conditions of employment, however, and specifically exempted from the realm of matters related to employment are those matters which are “managerial prerogative.”

The trouble begins where a matter that is fairly within the parameters of the terms and conditions of employment is also a matter of managerial prerogative. In City of Allentown v. International Association of Fire Fighters Local 302, the Court applied its three part, shifting test, developed in past cases, to hold that an arbitration award layout out minimum staffing requirements for firefighters did not “unduly infringe” upon the public employer’s essential managerial responsibilities, and so was a valid arbitration award.

The firefighter union and the City of Allentown (subject of Billy Joel’s famous blue-collar anthem) failed to reach terms on a collective bargaining agreement, and the matter was certified for binding arbitration in 2011. The arbitration panel issued an Award in November 2013 which required, among other things, a minimum of twenty-five firefighters employed on each shift. Allentown appealed, arguing that the minimum staffing requirement was within the city’s “managerial prerogative,” and thus not subject to an arbitration award in a collective bargaining dispute.

Majority, Todd: Allentown failed to demonstrate undue infringement

In illustrating the difficulties found in this case, Justice Todd evokes the image of a Venn Diagram, illustrated here for convenience.

City of Allentown v. International Association of Fire Fighters Local 302

 Those matters which are “managerial prerogative” are not to be included in an arbitration award to resolve a collective bargaining dispute. But those matters which are fairly included in the terms and conditions of employment must be included. Thus, when these two overlap, the Appellate Courts of the Commonwealth are called upon to do some line drawing.

Todd lays out the policy considerations at play in adjudicating collective bargaining agreements, then lays out an established three-part test and applies it.

  1. Where a topic is “rationally related” to the terms and conditions of employment (and thus subject to the right of collective bargaining); and
  2. where such topic also implicates a “managerial responsibility”;
  3. the municipality bears the burden of demonstrating that the topic would “unduly infringe” upon the public employer’s essential managerial responsibilities.

In the case at hand, the municipality failed to bear its burden on part three. While setting requirements for total force staffing would be managerial prerogative, Allentown failed to counteract the uncontradicted testimony that the safety of firefighters was directly threatened by a failure to meet certain minimum thresholds of staffing.

The Court sought some evidence that the burden on the City’s managerial prerogative was so great as to make the arbitration award unacceptable; but Allentown failed to meet this burden. “[T]here is a direct and significant relationship between the number of individuals available to respond to a call at a station . . . . and the safety of the City’s firefighters.” Thus, the award was properly within the purview of collective bargaining, and was allowed to stand.

Saylor: Are we going to do this every time?

 Chief Justice Saylor penned a concurrence urging courts to “minimize such fact-finding and defer” to arbitration panels. Concerned that decisions such as this one will create a body of caselaw that will lead to small cities governed by fact-intensive inquiries settled in cases involving large cities, and vice-verse. Saylor would leave such matters in the sound discretion of arbitration panels wherever possible.

Dougherty: Undue Infringement is a High, Evidence-Driven Bar

 Justice Dougherty’s concurrence reminds the reader that “[p]olice officers and firefighters gave up the ability to strike in exchange for the right to bargain collectively,” and argues that a municipality’s burden must be high in order to show that the infringement on its managerial prerogative is undue; he also urges that the burden of proof rests on the municipality.

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Posted by on Mar 15, 2017 in Uncategorized | 0 comments

Bill Cosby Jury Pool Round-up

Today’s roundup is entirely composed of reaction to the Supreme Court of Pennsylvania’s choice of Allegheny County for the new venire in the Bill Cosby case.

Phil DiLucente of Pittsburgh’s WPXI News discusses the “great cross section of society” available in Allegheny County. Pittsburgh’s Tribune-Review and Post-Gazzette provide summaries of the maneuvering over the jury pool so far, along with some local reaction. Finally, though posted a few weeks ago, we offer The Legal Intelligencer’s pre-decision discussion of where to find an appropriate jury pool in this case.

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Posted by on Nov 23, 2016 in Uncategorized | 0 comments

City of Philadelphia v. Lerner—Ignoring the Government’s Requests for Information Only Works if You’re With the Government

Remember Lois Lerner? Remember her pleading the Fifth, and refusing to answer questions about alleged IRS wrongdoing?  In City of Phila. v. Lerner, we learn that this doesn’t work out the same way when you’re not employed by the government.

In 2004, the City of Brotherly Love (home of the Tax-Free Shopping Spree) received an anonymous tip that one of its residents—Nathan Lerner—wasn’t shouldering his share of the city’s tax burdens and was concealing the existence of businesses (and thus, their taxable profits) from the City. But games of hide-and-seek don’t end just because the Seeker asks where you’re hiding, and Mr. Lerner declined to answer the City’s requests for information about his businesses. More audaciously, Lerner ignored the exorbitant tax bills that the City sent him to smoke out the true information.

The City filed an enforcement action in the CCP, requesting full payment of the exorbitant taxes they assessed. A default judgment followed, and an opening of the default, and finally Mr. Lerner showed up in court. Lerner, as appears to be his custom, declined to answer the City’s motion in limine, which was granted, preempting Lerner from challenging the underlying tax estimates, which the City’s own employees described as “just [made] up,” and designed to scare the taxpayer into “com[ing] in and mak[ing] sure the figures are accurate.” The trial court agreed, concluding the tax bill was “basically an amount pulled out of the sky,” but nonetheless ordered Lerner to pay the full, assessed amount with interest.

Lerner challenged the trial court’s ruling that he must pay the tax bill as against the weight of the evidence, and argued that he should have been able to argue the underlying tax bill in the CCP. SCOPA disagreed, ruling that a litigant’s failure to exhaust all administrative remedies barred him from raising the waived argument in court. The Court framed this as a jurisdictional matter, arguing that the Philadelphia Tax Review Board had exclusive original jurisdiction over the tax amount.

Lerner urged for a special exception to the rule, which has been around since at least Krug v. City of Phila., 152 Pa.Cmwlth. 475 (1993). The Court declined to create such an exception, and made little effort to disguise its disgust with Lerner for his failure to answer requests for information, tax bills, complaints, and even motions before the trial court. “Lerner asserts that reversal is necessary to prevent a ‘fraud’ in the legal process. But that process consists of rules, and Lerner has flouted them at every turn.”

An unusually spirited pair of dissents issued from Chief Justice Saylor and Justice Donohue. Justice Donohue argues that the “scam preceded any attempt by Lerner to assert a defense,” and expresses hope that it will be “the rarest of occasions when a plaintiff comes into a Pennsylvania court, straightforwardly admits in its case-in-chief that it is proceeding arbitrarily and without any evidentiary basis whatsoever, and nevertheless demands that the court enter judgment in its favor on a fictional damage amount.” Justice Donohue would eschew the typical considerations of efficiency underlying the “exhaustion of administrative remedies rule,” and refuse to allow an admitted fraud to be perpetrated through the courts.

This case is not terribly noteworthy for its rule of decision: after all, exhaustion of administrative remedies is a standard precursor to arguments in trial courts. But one can’t help but notice the way in which this decision would be different if the parties were reversed. We don’t need the experience of Lois Lerner to know that local taxing authorities don’t feel constrained to respond to the taxpayer’s request for information in a timely manner. For the taxpayer, however, failure to respond gives the taxing authority power to pick the penalty in a Pennsylvania court, and apparently to accompany the choice with an open admission of its exorbitance.

Furthermore, while this case rested largely on procedural grounds, one wonders why the Court did not consider the possibility that there is a difference between skipping administrative remedies as a Plaintiff, and being able to raise the lack of substantive proof as a Defendant. No one is arguing that Lerner should be able to sue the City of Philadelphia without first exhausting all administrative processes; but when sued over an amount that is admittedly made up, a trial court seems like the appropriate venue for fact-finding, regardless of the taxpayer’s past omissions.

Slip opinion here.

Saylor, C.J., dissenting.

Donohue, J., dissenting.


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