The Supreme Court, in its Protz decision, set forth no admonition with regard to retroactive application of the decision. In lieu of such directives, resort must be made to common law doctrine. Of course, guidance from the high court would have been most welcome. Indeed, initial law firm website postings (see, e.g, http://www.postschell.com/publications/1385-pa-supreme-court-declares-ires-unconstitutional); lawyer commentary in the legal press (see, e.g., Ms. Sherri Okimoto’s top-notch column at the pay-site WorkCompCentral.com); and hearing room chatter, have all focused on this extremely practical issue. (As to Ms. Okimoto's column, the important remarks of attorney Lawrence Chaban merit special attention.)
On this topic, in any event, I have long included in the Torrey-Greenberg Treatise (Thomson-Reuters 3rd ed., 2008), at section 1:92, the following brief discussion:
A statute found unconstitutional is usually considered void for all purposes and “unconstitutionality dates from the time of … enactment, and not merely from the date of the decision so branding it ….” Thus, “an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed.” …. [C]ourt pronouncements are [consistent with this rule] usually held retroactive. [A] competing, well-recognized rule, however, is that a final judgment is final and not to be collaterally attacked. This is so notwithstanding the fact that the law which supported the judgment is later found unconstitutional.
For the initial, familiar, declaration, we cite Buradus v. General Cement Products Co., 52 A.2d 205 (Pa. 1947). For the latter, we cite a U.S. Supreme Court case which has been applied in Pennsylvania, Chicot County Drainage Dist. v. Baxter State Bank, 60 S. Ct. 317 (U.S. 1940). That case indicates that exceptions can exist to the general rule that declarations of unconstitutionality void everything that has unfolded in the past. The Pennsylvania Supreme Court, in a 1984 case, stated:
Any broad statement of absolute retroactive invalidity must be taken with qualifications . . . “The actual existence of a statute, prior to such a determination [i.e., unconstitutionality] is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects …. [Q]uestions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. (Citation omitted, quoting Chicot County ….).
Cianfrani v. Commw., State Employees’ Retirement Board, 479 A.2d 468 (Pa. 1984).
Watch for my next posting for further thoughts on the retroactivity issue. I won’t be taking positions on the issue, given my role as a neutral ALJ, but I’m hopeful that I can comprehensively identify what appear to be the competing authorities.