                            [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
