Big Statutes In Spotlight on High Court's Docket

In another politically charged case, scheduled for argument Tuesday, the justices will consider whether the Pennsylvania State Police may withhold from the state auditor general information on sex offenders registered under Pennsylvania’s version of Megan’s Law.

In Department of the Auditor General v. Pennsylvania State Police, PICS Case No. 04-0321 (Pa. Commw. March 8, 2004) Friedman, J.; Pellegrini, J., dissenting (18 pages), a 4-3 en banc panel of the Commonwealth Court agreed with the state police that the sex offender data are “investigative information under the state Criminal History Record Information Act.”

Robert P. Casey Jr., then serving as state auditor general, had asked the court to force the state police to divulge the records as part of a performance audit of the state’s enforcement of Megan’s Law.

Judge Rochelle S. Friedman authored the Commonwealth Court’s majority opinion, joined by President Judge James Gardner Colins and Judges Renee L. Cohn and Robert Simpson.

A dissenting opinion, filed by Judge Dan Pellegrini and joined by Judges Bernard L. McGinley and Doris A. Smith-Ribner, argued that the requested records were not “part of any investigation of a particular crime, but merely a record of persons convicted of crimes as a result of convictions in a court of law.” Therefore, Pellegrini asserted, the information sought by the auditor general can be released at the discretion of the state police, or can be compelled to be released “to allow an agency to carry out its legislatively mandated responsibilities.”

Arguments in the auditor general’s appeal will be heard second on the docket Tuesday.

Subrogation Rights

On Monday, the high court will consider the subrogation rights of the Pennsylvania Employees Benefit Trust Fund under the Employee Retirement Income Security Act.

PEBTF was originally established as a governmental plan for ERISA purposes, but it subsequently changed its status so that it was qualified as an ERISA plan at the time of plaintiff Robert John Scalice’s motor vehicle accident in 1997.

Scalice received medical benefits from PEBTF after exhausting the policy limits for medical insurance on his vehicle insurance policy. Those benefits continued even after PEBTF relinquished its ERISA status in January 1998.

After Scalice obtained a tort recovery from the accident, PEBTF sought to subrogate against the award since, as an ERISA plan, it was not bound by state law preventing subrogation from a tort recovery for insurance payments.

Two issues were raised in Scalice v. Pennsylvania Employees Benefit Trust Fund, PICS Case No. 04-1037 (Pa. Super. June 29, 2004) Tamilia, S.J.; Ford Elliott, J., dissenting (15 pages), namely whether PEBTF could be ERISA-qualified given that it was established as a governmental plan, and whether its subsequent relinquishment of its ERISA status precluded it from subrogating Scalice’s tort recovery. On both issues, the 2-1 Superior Court panel sided with PEBTF, permitting it to subrogate against Scalice’s recovery. (Senior Judge Patrick R. Tamilia and Judge Michael T. Joyce were in the majority, while Judge Kate Ford Elliott wrote in dissent.)

Scalice’s appeal is scheduled ninth on the docket Monday. James D. Belliveau of Edgar Snyder & Associates in Pittsburgh is counsel to Scalice, and Richard Kirschner of Kirschner & Gartrell in Washington is the attorney for PEBTF, according to the court’s docket.

Interestingly, the justices might be persuaded by an en banc Superior Court ruling earlier this year to rule in Scalice’s favor on at least one issue in his appeal.

The en banc panel in Wimer v. Pennsylvania Employees Benefit Trust Fund, PICS Case No. 05-0103 (Pa. Super. Jan. 27, 2005) Musmanno, J.; Klein, J., concurring (25 pages), departed from the Scalice decision by ruling that PEBTF could not assert a subrogation lien against an employee’s tort settlement for benefits paid after the health plan lost its ERISA status.

The Wimer court found that “PEBTF’s right of subrogation did not arise until, at the earliest, the dates on which PEBTF paid the benefit amounts to” the state employee in that case ? which occurred, as it did in Scalice, after PEBTF lost its ERISA status.

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