[J-95-2019] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
DANA HOLDING CORPORATION, : No. 44 MAP 2019
:
Appellant : Appeal from the Order of the
: Commonwealth Court at No. 1869
: CD 2017 dated October 11, 2018
v. : Affirming the Order of the Workers'
: Compensation Appeal Board at No.
: A16-1266 dated November 28,
WORKERS' COMPENSATION APPEAL : 2017.
BOARD (SMUCK), :
: ARGUED: November 19, 2019
Appellees :
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: June 16, 2020
I join parts I(A)-(B) and II of the Majority Opinion and concur in the result as to parts
I(C)-(F). I write separately because, in my view, Blackwell v. Com., State Ethics Comm’n,
589 A.2d 1094 (Pa. 1991), directs that we apply the analysis set forth in Chevron Oil Co.
v. Huson, 404 U.S. 97 (1971), in the present appeal. As the Majority recounts, we held
in Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017),
that Section 306(a.2) of the Workers’ Compensation Act, 77 P.S. §511.2, effected an
unconstitutional delegation of legislative authority. See Majority Opinion, slip op. at 3.
Because the appellee-claimant’s case was pending at the time Protz was decided, the
Workers’ Compensation Appeal Board (WCAB) applied our decision retroactively to his
case, and the Commonwealth Court affirmed. Appellant-employer challenges these
rulings.
Blackwell, this Court’s seminal decision concerning retroactive versus prospective
application of a prior judicial decision, is not a model of clarity. However, I glean from its
holding two important principles. First, we do not apply Pennsylvania’s general rule of
retroactivity mechanically;1 instead we consider whether a judicial decision applies
retroactively or prospectively on a case-by-case basis in the context of a balancing test,
i.e. Chevron Oil in civil cases, and Linkletter v. Walker, 381 U.S. 618 (1965), in the criminal
context.2 See Blackwell, 589 A.2d at 1099-1100; see, e.g., Passarello v. Grumbine, 87
1Pennsylvania’s general rule commands “that we apply the law in effect at the time of the
appellate decision.” Blackwell, 589 A.2d at 1099, citing Commonwealth v. Cabeza, 469
A.2d 146 (Pa. 1983); see also id. (“This means that we adhere to the principle that, a
party whose case is pending on direct appeal is entitled to the benefit of changes in law
which occur[ ] before the judgment becomes final.”) (internal quotations and citation
omitted).
2 The Chevron Oil test requires:
First, the decision to be applied nonretroactively must establish a new
principle of law, either by overruling clear past precedent on which litigants
may have relied . . . or by deciding an issue of first impression whose
resolution was not clearly foreshadowed. . . . Second, it has been stressed
that we must weigh the merits and demerits in each case by looking to the
prior history of the rule in question, its purpose and effect, and whether
retrospective operation will further or retard its operation. . . . Finally, we
have weighed the inequity imposed by retroactive application, for where a
decision of this Court could produce substantial inequitable results if applied
retroactively, there is ample basis in our cases for avoiding the injustice or
hardship by a holding of nonretroactivity.
Blackwell, 589 A.2d at 1100, quoting Chevron Oil, 404 U.S. at 106-07 (internal quotations
omitted).
The Chevron Oil and Linkletter tests are nearly identical and despite Blackwell’s
application of both, courts need only apply one. This Court has recognized as much while
taking into consideration the tests’ respective roots in the civil and criminal context. See,
e.g., Oz Gas, infra (applying only Chevron Oil in a civil case); Christy, infra (same); cf.
Am. Trucking Ass’n, Inc. v. Smith, 496 U.S. 167, 178 (1990) (recognizing Chevron Oil’s
civil origins and application in that context). Thus, I cannot agree with the Majority that it
[J-95-2019] [MO: Saylor, C.J.] - 2
A.3d 285, 307 (Pa. 2014) (conducting balancing test pursuant to Blackwell without “rotely”
applying Pennsylvania’s general rule); Oz Gas, Ltd. v. Warren Area Sch. Dist., 938 A.2d
274, 283 (Pa. 2007) (conducting Chevron Oil balancing test); Bugosh v. I.U. North Am.,
Inc., 971 A.2d 1228, 1242 n.25 (Pa. 2009) (per curiam) (Saylor, J., dissenting) (although
Chevron Oil was overruled in the federal arena by Harper v. Va. Dep’t of Taxation, 509
U.S. 86 (1993), Oz Gas recognized its continued viability in Pennsylvania jurisprudence).
Second, when this Court applies a fundamental, well-established principle of
constitutional law in a new subject area, that is, in a situation where it has not yet been
applied, the Court does not “announce a new rule of law” for purposes of determining
retroactivity. See Blackwell, 589 A.2d at 1102; see, e.g., Fiore v. White, 757 A.2d 842,
847 (Pa. 2000) (citing Blackwell for proposition that a new rule is not announced when
the court applies fundamental principles of constitutional law).
The Majority does not cite or mention either Chevron Oil or Blackwell in its analysis.
See Majority Opinion, slip op. at 29-31. Instead, it concludes: “Ultimately, we find that
the inertia favoring application of the general rule of retroactive application to cases
pending on direct appeal should control.” Id. at 30. The Majority also does not expressly
state whether Protz announced a new rule of law,3 but does accord short consideration
is somehow “inconsistent” to recognize their similarities while considering the context in
which the test will apply. Majority Opinion, slip op. at 31.
3 In the Commonwealth Court, both parties agreed that Protz announced a new rule of
law. The Commonwealth Court apparently concurred without expressly stating it. Before
this Court, however, appellee argues that Protz did not announce a new rule of law; in
doing so, appellee relies on Blackwell’s holding that when a court applies a fundamental
principle of constitutional law it does not announce a new rule of law. See Appellee’s
Brief at 10-11. Appellant acknowledges that despite this shift in appellee’s argument,
“[t]his Court is not bound by the Commonwealth Court’s determination” that a new rule
was announced. Appellant’s Reply Brief at 2. Indeed, the lower panel’s application of
Blackwell (albeit in the form of Linkletter) implicates a legal question over which our review
is de novo. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). The Majority
does not expressly address appellee’s new rule argument.
[J-95-2019] [MO: Saylor, C.J.] - 3
to each party’s reliance interests. Id. at 29-31. To me, it is unclear whether the Majority
accepts the lower panel’s conclusion that Protz announced a new rule of law and engages
in that balancing in an attempt to follow Blackwell, or if it is following the “inertia” of law
away from Chevron Oil and toward general retroactive application. See id. at 14-26
(recognizing that federal courts abandoned the Chevron Oil test in favor of a general rule
of retroactive application and that Chevron Oil’s application is especially challenging). In
my view, a Chevron Oil analysis is warranted here, beginning with a determination of
whether or not Protz announced a new rule of law.
Moreover, the Majority’s approach casts doubt on the viability of Blackwell and its
mandate to apply Chevron Oil in the civil context. See id. at 26 (“relative to cases pending
on direct appeal in which the pertinent issue has been raised and preserved, the current
state of Pennsylvania law — in effect — appears to more closely resemble [the federal
approach] than Linkletter and Chevron [Oil]”). Notably, this is not the first time this Court’s
application of Chevron Oil has been called into question since Harper. See Christy v.
Cranberry Volunteer Ambulance Corps, Inc., 856 A.2d 43, 51-52 (Pa. 2004) (“While
Pennsylvania has traditionally used the analysis set forth in Chevron Oil, the decision of
the Supreme Court in Harper further strengthens the general principle that changes in
law are to be applied retroactively to pending cases.”) (footnote omitted); Bugosh, 971
A.2d at 1242 n.25 (per curiam) (Saylor, J., dissenting) (citing Christy’s reservations about
Chevron Oil in light of Harper). To the extent the Majority concludes Chevron Oil is no
longer applicable — aligning this Court’s position with federal jurisprudence — it should
explicitly overrule Blackwell. Absent an express holding to the contrary, in my view,
Blackwell controls.
Accordingly, I would apply Chevron Oil as Blackwell instructs. Initially, I note this
case does not include one of the unique subject areas identified by this Court where
[J-95-2019] [MO: Saylor, C.J.] - 4
prospective application is preferred. See, e.g., Oz Gas, 938 A.2d at 283 (holding a
decision declaring a tax statute invalid is applied prospectively); see also Majority
Opinion, slip op. at 30 (citing other subject areas). Cognizant not to apply our general
rule of retroactive application “rotely,” I consider Chevron Oil’s first prong — whether a
new rule of law was announced. See Passarello, 87 A.3d at 308. Here, the Protz Court
applied a fundamental constitutional principle — the non-delegation doctrine — to Section
306(a.2) for the first time. Blackwell instructs that in such circumstances, the decision did
not announce a new rule of law.4 589 A.2d at 1102. Accordingly, I concur in the Court’s
determination that Protz applies retroactively to all cases pending on appeal at the time it
was decided, including the present matter.
4 The Majority asserts its “hesitation” to apply Blackwell outright is that its holding was
“framed” as applicable only when a new rule of law is announced. See Majority Opinion,
slip op. at 32. However, the Blackwell Court never determined a new rule was announced
before applying Linkletter. When the Court finally did reach that threshold question — as
part of its Chevron Oil analysis — it held no new rule of law was announced. See
Blackwell, 589 A.2d at 1100, 1102. When considered in that light, the weight we afford
to the Court’s inconsistent suggestion that a new rule was announced, see id. at 1102,
should be minimal. Thus, in my view, we should not hesitate to apply Blackwell here as
long as we also make clear that application of a fundamental constitutional principle in a
new situation does not constitute the announcement of a “new rule of law.”
[J-95-2019] [MO: Saylor, C.J.] - 5