                                     [J-95-2019]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

DANA HOLDING CORPORATION,                       :   No. 44 MAP 2019
                                                :
                      Appellant                 :   Appeal from the Order of the
                                                :   Commonwealth Court at No. 1869 CD
                                                :   2017 dated 10/11/18 affirming the order
                 v.                             :   of the Workers’ Compensation Appeal
                                                :   Board at No. A16-1266 dated 11/28/17
                                                :
WORKERS’ COMPENSATION APPEAL                    :
BOARD (SMUCK),                                  :
                                                :
                      Appellees                 :   ARGUED: November 19, 2019




                                        OPINION



CHIEF JUSTICE SAYLOR                                             DECIDED: June 16, 2020

      In Protz v. Workers’ Compensation Appeal Board (Derry Area School District),

639 Pa. 645, 161 A.3d 827 (2017), this Court recently ruled that a statutory regime per

which the duration of workers’ compensation benefits could be curtailed was invalid,

since integral terms of the enactment yielded an unconstitutional delegation of

legislative power. The present case concerns the retroactive application of this holding

to a scenario in which the pertinent constitutional challenge to the statute was advanced

during the course of direct appellate review.

      In 1996, in response to the rising costs of the workers’ compensation liability

scheme in Pennsylvania, the General Assembly promulgated an impairment rating
scheme, reposed in Section 306(a.2) of the Workers’ Compensation Act, 1 77 P.S.

§511.2. See I.A. Constr. Corp. v. WCAB (Rhodes), 635 Pa. 551, 553, 139 A.3d 154,

155 (2016). Under the statute, insurers were required to request an impairment rating

evaluation -- or an “IRE” -- after a workers’ compensation claimant had received total

disability benefits for a period of 104 weeks.      See 77 P.S. §511.2(1) (repealed).

“Impairment,” in this setting, connoted an anatomic or functional abnormality or loss

resulting from a compensable injury that was reasonably presumed to be permanent,

see id. §511.2(8)(i), as distinguished from “disability,” which more directly concerns the

loss of earnings capacity.2

      When a claimant received an impairment rating of less than 50 percent, the

designation of his disability was converted from total to partial, thereby limiting the

insurer’s otherwise continuing liability to benefits payable throughout a maximum,

closed-ended period of 500 weeks. See 77 P.S. §511.2(7). Accordingly,

             one main purport of the statute [was] that a claimant whose
             condition may continue to meet the conventional definition of
             total “disability” -- a concept centered on overall earnings
             capacity encompassing both physical capacity and job
             availability -- may nevertheless be limited in the time frame
             during which he or she may receive workers’ compensation
             benefits.
I.A. Constr., 635 Pa. at 554, 139 A.3d at 155; see also Diehl, 607 Pa. at 280, 5 A.3d at

246 (explaining that an employer/insurer was not required to produce evidence of

1 Act of June 2, 1915, P.L. 736 (as amended 77 P.S. §§1-1041.1, 2501-2626) (the
“WCA” or the “Act”).

2 See Dillon v. WCAB (Greenwich Collieries), 536 Pa. 490, 501, 640 A.2d 386, 392
(1994) (explaining that the concept of “disability” under the WCA encompasses both the
capacity to work and job availability). See generally Diehl v. WCAB (I.A. Constr.), 607
Pa. 254, 277-79, 5 A.3d 230, 244-45 (2010) (elaborating upon the distinction between
impairment and disability).


                          [J-95-2019][M.O. – Saylor, C.J.] - 2
earning power or job availability to support conversion of a disability designation from

total to partial under Section 306(a.2), based on an effective impairment rating of less

than 50 percent). See generally DAVID B. TORREY & ANDREW E. GREENBERG, 6 W EST’S

PA. PRACTICE SERIES, WORKERS’ COMPENSATION: LAW AND PRACTICE §6:41 (3d ed. 2008)

(“[T]he 500 weeks provides a horizon with regard to the claimant’s entitlement and the

employer’s liability.”).

       Significantly, under Section 306(a.2), impairment ratings were to be determined

“pursuant to the most recent edition of the American Medical Association ‘Guides to the

Evaluation of Permanent Impairment,’” 77 P.S. §511.2(1) (emphasis added), hereinafter

referred to as the “Guides.” However, in Protz, this Court ruled that this prescription

entailed an unconstitutional delegation of lawmaking authority from the Legislature to

the American Medical Association. See Protz, 639 Pa. at 663, 161 A.3d at 838 (relying

upon the mandate of Article II, Section 1 of the Pennsylvania Constitution that “[t]he

legislative power of this Commonwealth shall be vested in a General Assembly, which

shall consist of a Senate and a House of Representatives.”). The Court explained that

reliance on that private association’s normative judgments was impermissible, at least

insofar as the Legislature had not provided any standards by which impairment ratings

should be assessed or procedural mechanisms to ensure fairness in the determination

whether a claimant’s disability benefits should cease after 500 weeks. See id. at 659-

60, 161 A.3d at 835-36.      Given that this unconstitutional delegation could not be

rationally severed from the balance of the statute, Section 306(a.2) was ultimately

deemed to be invalid in its entirety. See id. at 667-68, 161 A.3d at 841.

       In 2000, Appellee David Smuck (“Claimant”) suffered a work-related back injury,

for which he received total disability benefits since 2003.       Appellant Dana Holding

Corporation (“Employer”) requested an IRE pursuant to the then-extant impairment


                           [J-95-2019][M.O. – Saylor, C.J.] - 3
rating regime embodied in Section 306(a.2). In June 2014, Claimant submitted to the

IRE and was assigned a whole-body impairment rating of 11 percent, based on the

Sixth Edition of the Guides, which was the most recent version. Employer then filed a

modification petition seeking to convert Claimant’s disability status from total to partial,

thus limiting the term of Claimant’s disability benefits. See 77 P.S. §§511.2(5) & (7). In

response, Claimant filed a review petition challenging the modification on the basis that

he hadn’t reached maximum medical improvement, and the matter was presented to a

workers’ compensation judge (the “WCJ”).

         Procedural complexities ensued in light of the Commonwealth Court’s intervening

decision in Protz. See Protz v. WCAB (Derry Area Sch. Dist.), 124 A.3d 406 (Pa.

Cmwlth. 2015), aff’d in part and rev’d in part, 639 Pa. 645, 668, 161 A.3d 827.

Ultimately, the WCJ credited Employer’s position on modification, thus yielding a

change in disability status from total to partial, effective as of June 2014. See Smuck v.

Dana Holding Corp., DSP-7357035-1, slip op. at 10 (DLI, Lancaster Field Office Nov. 1,

2016).

         Claimant appealed to the Workers’ Compensation Appeal Board (the “WCAB” or

the “Board”), and the proceedings before the Board were stayed at Employer’s behest

pending this Court’s decision in Protz. Upon the issuance of that opinion, the Board

reversed the WCJ’s order, since the judge had relied upon Section 306(a.2)’s

procedures, which this Court had found to be invalid. Accordingly, Claimant’s total

disability status was reinstated as of the date of the disputed IRE. See Smuck v. Dana

Holding Corp., No. A16-1266, slip op. at 3-4 (WCAB Nov. 28, 2017).

         An appeal was lodged by Employer in the Commonwealth Court, which affirmed,

holding that Protz applies at least to all cases in which the underlying IRE was actively

being litigated when the decision was issued.        See Dana Holding Corp. v. WCAB


                           [J-95-2019][M.O. – Saylor, C.J.] - 4
(Smuck), 195 A.3d 635, 643 (Pa. Cmwlth. 2018). Responding to Employer’s position

that the WCAB should not have applied Protz retroactively, the intermediate court first

referenced the general rule that appellate courts apply the law in effect at the time of

appellate review. See id. at 641 (citing Passarello v. Grumbine, 624 Pa. 564, 601, 87

A.3d 285, 307 (2014), and Blackwell v. SEC, 527 Pa. 172, 182, 589 A.2d 1094, 1099

(1991)). The court cautioned, however, that this approach should not be applied rotely

and explained that, ultimately, “[w]hether a judicial decision should apply retroactively is

a matter of judicial discretion to be decided on a case-by-case basis.” Id. (quoting

Passarello, 624 Pa. at 601, 87 A.3d at 307).

       Notably, this Court has specified that a threshold inquiry in retroactivity analysis

is whether or not a new rule of law has been announced. See, e.g., Cleveland v. Johns-

Manville Corp., 547 Pa. 402, 413, 690 A.2d 1146, 1152 (1997).                    Here, the

Commonwealth Court appears to have assumed that Protz announced a new rule,

presumably because both parties to the appeal agreed as such. See Brief for Petitioner

in Dana Holding Corp. v. WCAB (Smuck), 1869 C.D. 2017 (Pa. Cmwlth.), at 25; Brief for

Respondent in Dana Holding, 1869 C.D. 2017, at 4.

       The Commonwealth Court next related that the governing retroactivity analysis --

upon discernment of a new rule -- requires consideration of whether:

              (1) the purpose to be served by the new rule, (2) the extent
              of the reliance on the old rule, and (3) the effect on the
              administration of justice by the retroactive application of the
              new rule.
Dana Holding, 195 A.3d at 641 (quoting Blackwell, 527 Pa. at 183, 589 A.2d at 1099,

which relied for this proposition on Desist v. U.S., 394 U.S. 244, 249, 89 S. Ct. 1030,

1033 (1969), overruled for purposes of new federal rules in Griffith v. Kentucky, 479

U.S. 314, 322, 107 S. Ct. 708, 712 (1987), and Stovall v. Denno, 388 U.S. 293, 297, 87


                           [J-95-2019][M.O. – Saylor, C.J.] - 5
S. Ct. 1967, 1970 (1967) (same)).3 In terms of purpose, the court noted the parties’

agreement that the object of Protz was to vindicate the requirements of the

Pennsylvania Constitution. See Dana Holding, 195 A.3d at 641.

      Regarding the second factor -- reliance -- the Commonwealth Court related that it

was cognizant of Employer’s argument that hundreds of thousands of claims had been

managed by the business and insurance industries under Section 306(a.2); many of

these were considered to be final and closed; and the company had forewent the

opportunity to pursue other, more traditional avenues to challenge Claimant’s disability

status. Nevertheless, the intermediate court found these concerns to be unpersuasive,

emphasizing instead that, in Claimant’s case, the determination of his disability status

was still being actively litigated when the Protz decisions were handed down. See id.

Additionally, the court opined that the risk of choosing the IRE mechanism over

traditional avenues for modification was properly allocated to Employer. See id. at 642.

In this respect, the court stressed the Act’s remedial nature. See id. (citing Reifsnyder

v. WCAB (Dana Corp.), 584 Pa. 341, 348, 883 A.2d 537, 541 (2005)).

      In terms of the third factor, the impact upon the administration of justice, the

Commonwealth Court again deflected Employer’s arguments concerning negative

consequences flowing from a full retroactive effect -- encompassing relitigation of

matters otherwise thought to be final -- by reiterating that the present case simply was


3 Blackwell also discussed a similar set of factors delineated in Chevron Oil Company v.
Huson, 404 U.S. 97, 106-07, 92 S. Ct. 349, 355 (1971), overruled for purposes of new
federal rules in Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97-98, 113 S. Ct. 2510,
2518 (1993). The Commonwealth Court, however, limited its discussion to the factors
deriving from Desist and Stovall, see Dana Holding, 195 A.3d at 641-42, which in turn
were premised on Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731 (1965), overruled
for purposes of new federal rules in Griffith, 479 U.S. at 322, 107 S. Ct. at 712. The
interrelationship between the various factors delineated in these cases is discussed
below.


                          [J-95-2019][M.O. – Saylor, C.J.] - 6
not final. See id. (“We examine each case before us, and in this case, the issue of the

IRE process was pending before the Board when [Protz] was decided.”). For the same

reason -- i.e., the fact that the contest over the validity of the IRE in Claimant’s case

remained ongoing -- the intermediate court rejected Employer’s claim to a vested right

deriving from Section 306(a.2), and concomitantly, a contention by the company that it

should at least receive a credit for three years of temporary disability, from the date of

the IRE in June 2014 to the decision in Protz of June 2017.4

       The Commonwealth Court then turned to Employer’s argument that retroactive

application of Protz violated its constitutional right, under Article I, Section 11 of the

Pennsylvania Constitution, to due course of law.        Generally, the intermediate court

explained, due course of law is most frequently relevant when the Legislature acts to

alter or eliminate a vested or accrued cause of action. See Dana Holding, 195 A.3d at

643 (citing Konidaris v. Portnoff Law Assocs., Ltd., 598 Pa. 55, 71, 953 A.2d 1231, 1240

(2008)). In all events, the court observed that, to implicate the constitutional provision,

the entitlement in issue must be a vested one.          See id. at 644 (citing, inter alia,

Konidaris, 598 Pa. at 74, 953 A.2d at 1242). A vested right, the court continued, is

“something more than a mere expectation, based upon an anticipated continuance of

existing law. It must have become a title, legal or equitable, to the present or future

enforcement of a demand, or a legal exemption from a demand made by another.” Id.

(quoting Konidaris, 598 Pa. at 74, 953 A.2d at 1242 (citation omitted)).

4 In this respect, it is noteworthy that, after Section 306(a.2) was invalidated in Protz, it
was replaced by Section 306(a.3) of the Act, which tracks its predecessor statute in
relevant respects, except that it specifically directs the use of the Sixth Edition of the
Guides in impairment rating evaluations. See 77 P.S. §511.3 (2018). Thus, Employer
asked (and asks) that the effect of IREs obtained under the provisions of Section
306(a.2) -- although those terms have been deemed invalid -- should nevertheless be
partially recognized for other purposes, including any later impairment rating
assessment under Section 306(a.3).


                           [J-95-2019][M.O. – Saylor, C.J.] - 7
       In this regard, the Commonwealth Court found that Employer had no reasonable

expectation that the IRE would be upheld, much less a vested right, since Claimant’s

disability status remained subject to continuing litigation.       See id.    Moreover, the

intermediate court discerned no involvement of due course of law in scenarios in which

a statute is found to be unconstitutional. See id. (“[A] party should not be able to claim

that its constitutional right to the due course of law is being violated and that it should be

able to continue to benefit from an unconstitutional law to the detriment of another party

whose rights were affected by that unconstitutional law.”).5

       Upon Employer’s petition, we granted discretionary review to consider the

following questions:

              Whether the Commonwealth Court erred in applying the
              [Protz] standard to the case on appeal at the time of this
              Court’s decision retroactive to the date of the IRE instead of
              as of the date as of [sic] the Supreme Court changed the
              law?

              Whether the Commonwealth Court’s failure to grant the
              employer credit for the three year period between the date of
              the IRE evaluation and the date of this Court’s decision in
              [Protz] unlawfully violates Employer’s constitutional right

5 The Commonwealth Court also rejected Employer’s claim that Claimant had waived
any entitlement to challenge the application of Section 306(a.2) on non-delegation
grounds. See Dana Holding, 195 A.3d at 645-47. Employer does not presently
challenge the intermediate court’s decision in this regard. Indeed, Employer appears to
accept that the court’s waiver ruling was correct to the extent that such ruling was based
on Pennsylvania Rule of Appellate Procedure 1551 and Section 703(a) of the
Administrative Law and Procedure Code. See Brief for Appellant at 27 n.7; see also
Pa.R.A.P. 1551(a) (excepting “[q]uestions involving the validity of a statute” from the
general prohibition against consideration, upon judicial review of quasi-judicial orders, of
issues not raised before the government unit); 2 Pa.C.S. §703(a) (same); Lehman v.
PSP, 576 Pa. 365, 382, 839 A.2d 265, 276 (2003) (observing under Section 703(a),
“claims questioning the [facial] validity of a statute . . . need not be raised before the
administrative agency to be preserved for appellate review”).


                           [J-95-2019][M.O. – Saylor, C.J.] - 8
              pursuant to the “Due Course of Law” provisions of the
              Pennsylvania Constitution Article I, Section 11?


Dana Holding Corp. v. WCAB (Smuck), ___ Pa. ___, 208 A.3d 461 (2019) (per curiam)

(emphasis added).

                                              I.

                               A. Scope of the First Issue

       According to its explicit terms, the lead issue presented concerns the application

of Protz “to the case on appeal at the time of this Court’s decision.” Id. Initially, we

observe that Employer’s present arguments, and that of the amici, materially transcend

this issue, the Commonwealth Court’s specific holding, and the circumstances now

before the Court.6       For example, deeply interwoven into Employer’s argument

throughout its brief are policy arguments militating against retroactive application of

Protz to cases in which specific IRE determinations had been fully litigated prior to that

decision’s issuance.7 Claimant, on the other hand, argues strenuously that “[t]he issue


6The amici supporting Employer’s position are the Pennsylvania Chamber of Business
and Industry, the National Federation of Independent Business, and LeadingAge PA,
which submitted a combined brief. The Pennsylvania Association for Justice has filed
an amicus brief supporting Claimant.

7 See, e.g., Brief for Appellant at 15 (“Application of [Protz] back to the date of the
impairment rating evaluation potentially would result in a monumental flood of petitions
to reinstate total disability benefits to all claimants who were not barred by the statute of
repose in Section 413(a) of the Act.”); id. at 30 (“Employers and insurers have litigated
or managed tens of thousands of claims in reliance on the now-stricken statutory
language.”); id. (“[I]f this Court were to impose full retroactivity of the [Protz] holding to
the date of the examination, the outcome would culminate in an overwhelming burden
on the administrative and judicial systems[.]”); id. at 44 (“The significant reach and
magnitude of impact upon tens of thousands of disability status determinations compels
the conclusion that . . . the holding in [Protz] should be applied prospectively only[.]”); id.
at 51 (alluding to a potential “effort by the Courts to revive closed claims via retroactive
application” of Protz).


                            [J-95-2019][M.O. – Saylor, C.J.] - 9
on appeal is limited ONLY to cases that were pending on direct appeal at the time

[Protz] was determined and where constitutionality was appropriately raised.” Brief for

Appellee at 19 (emphasis in original); see also id. at 16 -17 & n.6, 22-23.

       We agree with Claimant’s position on this matter. As previously explained, the

Commonwealth Court’s holding was carefully limited only to cases in which the non-

delegation challenge was raised during the course of ongoing litigation over an IRE

determination. Indeed, the court took great pains to emphasize the demarcation, as

follows:
              We reiterate that our holding is limited to cases, such as this,
              where the underlying IRE was still being actively litigated
              when [Protz] was issued. The extent to which [Protz] may
              be retroactively applied to another factual scenario is not
              currently before us.
Dana Holding, 195 A.3d at 642 n.9. Concomitantly, the pertinent issue accepted for

review by this Court is framed in terms of the application of Protz to “the case on appeal

at the time of this Court’s decision [in Protz].” Dana Holding, ___ Pa. at ___, 208 A.3d

at 461.

       Significantly, this Court has explained that, “[t]he adjudicatory process is

structured to cast a narrow focus on matters framed by litigants before the Court in a

highly directed fashion,” Official Comm. of Unsecured Creditors of Allegheny Health

Educ. & Research Found. v. PriceWaterhouseCoopers, LLP, 605 Pa. 269, 301, 989

A.2d 313, 333 (2010), and that the holding of a judicial opinion is to be interpreted with

reference to its facts. See Maloney v. Valley Med. Facilities, Inc., 603 Pa. 399, 415, 984

A.2d 478, 488 (2009). Accord Charles W. Rhodes, Loving Retroactivity, 45 FLA. ST.

U.L. REV. 383, 404 (2018) (“The traditional and ongoing institutional function of the

judiciary is resolving actual disputes between litigants in an adversary context impacting

the rights and obligations of the litigating parties.”). Quite clearly, different ranges of


                          [J-95-2019][M.O. – Saylor, C.J.] - 10
policy considerations pertain to vindicating constitutional challenges raised and

preserved in continuing litigation, versus applying new constitutional rulings to cases

that have become final (or in which the usually appropriate time period allowed for

raising constitutional challenges to a particular ruling has otherwise passed). Only the

former set of circumstances was addressed by the Commonwealth Court and is

presently before this Court.8

8 Certainly the direction this Court has taken is to enforce procedural requirements such
as case-specific issue preservation as a prerequisite to the application of a new rule.
See, e.g., Commonwealth v. Hays, ___ Pa. __, ___, 218 A.3d 1260, 1266-67 (2019);
accord Blackwell, 527 Pa. at 188, 589 A.2d at 1102 (foreclosing retroactive application
of a judicial decision finding a constitutional defect in a statute to “transactions . . . which
are now final”). However, the circumstances associated with retroactive application of
Protz to cases in which the non-delegation issue was not raised during the litigation of a
specific IRE determination may be more nuanced than the circumstances presented in
this general line of decisions. See Womack v. WCAB (Phila. Parking Auth.), 14 C.D.
2018, slip op., 2019 WL 1200255, at *4-5 (Pa. Cmwlth. Mar. 13, 2019) (distinguishing
Womack from the circumstances in the present case -- given that the claimant in
Womack hadn’t challenged the IRE determination in issue on non-delegation grounds
until years after his disability benefits had been converted to partial -- and remanding for
a hearing to determine whether the claimant continued to be disabled, consistent with
Whitfield v. WCAB (Tenet Health System Hahnemann LLC, 188 A.3d 599 (Pa. Cmwlth.
2018)); see also id. at *5 (explaining that “the facts of Dana Holding are sufficiently
distinguishable” and “Dana Holding cannot inform our decision here”).

Notably, as well, recourse to procedural vehicles such as waiver can be viewed as a
matter separate and apart from retroactivity/prospectivity analysis.            See, e.g.,
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758, 115 S. Ct. 1745, 1751 (1995)
(“New legal principles, even when applied retroactively, do not apply to cases already
closed.”); Findley v. Findley, 629 S.E.2d 222, 225 (Ga. 2006) (defining “full retroactivity”
as “application of a newly-pronounced rule to the parties before the Court and to all
others by and against whom claims may be pressed, consistent with res judicata and
procedural bars” (emphasis added)). See generally Rhodes, Loving Retroactivity, 45
FLA. ST. U.L. REV. at 420-23 (opining that “[p]rocedural doctrines, such as preclusion,
forfeiture, and limitations” are often applied to “mitigate the cost of legal change.”). In
this case, however, procedural impediments simply are not relevant, see supra note 5,
so that we need not presently assess the interrelationship of such barriers with the
retroactive versus prospective application of new rules.


                           [J-95-2019][M.O. – Saylor, C.J.] - 11
       For the above reasons -- and consistent with the judicious approach of the

intermediate court -- we confine our review to the circumstances of the present case, in

which it is undisputed that the constitutional non-delegation challenge to Section

306(a.2) was raised in a manner that meets the legal requirements for issue

preservation. See supra note 5.


                         B. Selective Prospectivity, Generally

       This Court’s retroactivity jurisprudence derives from that of the Supreme Court of

the United States, see, e.g., Blackwell, 527 Pa. at 183, 589 A.2d at 1099, and

accordingly, we begin with a discussion of the development of relevant principles at the

national level. By way of background, Employer seeks an application of Protz that is

selectively prospective, in that the ruling that Section 306(a.2) is unconstitutional was

applied to the Protz case itself, but Employer has sought and seeks at least a modified

application in Claimant’s case.9

       The question of whether, or to what degree, courts should consider curtailing the

normal, retroactive application of certain new rulings has been the subject of intense




9  “Selective” or “modified” prospectivity is the application of a decision to the parties in
the case in which the decision announcing a new rule is rendered, but thereafter only to
parties whose conduct occurs after the announcement. See Lunsford v. Saberhagen
Holdings, Inc., 208 P.3d 1092, 1095-96 (Wash. 2009). A decision is purely prospective
if it is not even applied to the litigants before the court upon announcement of the new
rule. See id. Retroactivity entails extending the application of a decision into the larger
sphere of acts occurring before the announcement. See id.

Again, Employer also seeks modified prospectivity on another plane, since it asks for a
credit, in the form of an allowance for three years of partial disability under the Section
306(a.2) regime, toward the 500 weeks of partial disability available under the statute
should Claimant’s benefits again be converted to the partial-disability track. See supra
note 4.


                          [J-95-2019][M.O. – Saylor, C.J.] - 12
debate amongst judges and legal theorists at the national and state levels.10 At a

theoretical level, on the one hand, it had long been maintained that judges discover but

do not make law; rather, the role of the judiciary is to explicate governing legal precepts

already in existence.    See, e.g., Linkletter, 381 U.S. at 622-23, 85 S. Ct. at 1734

(relating the traditionalist perspective that it was the duty of the court . . . not to

‘pronounce a new law, but to maintain and expound the old one’” (quoting 1 W ILLIAM

BLACKSTONE COMMENTARIES 69 (15th ed. 1809))).           Upon this understanding, judicial

decisions naturally will apply retroactively. See, e.g., James B. Beam Distilling Co. v.

Ga., 501 U.S. 529, 535, 111 S. Ct. 2439, 2443 (1991) (plurality) (indicating that the

practice of full retroactivity was “overwhelmingly the norm”). Significantly, courts and

commentators for many years treated this view of the judicial function as a key

distinction between judicial and legislative pronouncements, the latter of which normally

apply prospectively.11



10  See, e.g., Lemon v. Kurtzman, 411 U.S. 192, 198, 93 S. Ct. 1463, 1468 (1973)
(plurality) (“[R]econciling the constitutional interests reflected in a new rule of law with
reliance interests founded upon the old is ‘among the most difficult [processes] which
have engaged the attention of courts, state and federal.” (citing Chicot Cty. Drainage
Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S. Ct. 317, 319 (1940)); Beavers v.
Johnson Controls World Servs., Inc., 881 P.2d 1376, 1377 (N.M. 1994) (characterizing
the selection between mandatory retroactivity as contrasted with selective prospectivity
as involving “one of the great jurisprudential debates of the twentieth century”);
compare, e.g., Bradley S. Shannon, The Retroactive and Prospective Application of
Judicial Decisions, 26 HARV. J.L. & PUB. POL’Y 811, 874-76 (2003) (advocating for a firm
rule of retroactivity), with Beryl H. Levy, Realist Jurisprudence and Prospective
Overruling, 109 U. PA. L. REV. 1, 25-30 (1960) (making the case for selective
prospectivity).

11 See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S. Ct. 1483, 1497
(1994) (“[T]he presumption against retroactive legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than our Republic.”
(emphasis added)). See generally Elizabeth E. Beske, Backdoor Balancing and the
(continued…)
                          [J-95-2019][M.O. – Saylor, C.J.] - 13
       Nevertheless, when courts have overruled past decisions or otherwise altered

settled (or ostensibly settled) expectations, intractable questions have arisen about the

fairness of applying such rulings to conduct undertaken in reliance upon a different legal

regime. See, e.g., Griffin v. Illinois, 351 U.S. 12, 26, 76 S. Ct. 585, 594 (1956) (plurality)

(Frankfurter, J., concurring) (“We should not indulge in the fiction that the law now

announced has always been the law. . . . It is much more conducive to law’s self-

respect to recognize candidly the considerations that give prospective content to a new

pronouncement of law.”). For this reason, for a time, the Supreme Court of the United

States experimented with widening the boundaries of prospective, or selectively

prospective, decision-making in seminal cases such as Linkletter, 381 U.S. at 629, 85

S. Ct. at 1738 (developing a doctrine by which the Court could deny retroactive effect to

a newly announced rule of criminal law), and Chevron Oil, 404 U.S. at 106-07, 92 S. Ct.

at 355-56 (extending the Linkletter doctrine to civil cases).       See generally Rhodes,

Loving Retroactivity, 45 FLA. ST. U.L. REV. at 396 (depicting the Linkletter-Chevron line

of cases as entailing the “high tide of nonretroactivity”).

       In later decisions, however, exemplified by Griffith, 479 U.S. 314, 107 S. Ct. 708,

the Supreme Court of the United States retrenched and adopted a firm rule requiring

retroactive application -- initially in the criminal-law context -- to cases pending on direct

appeal. See id. at 328, 107 S. Ct. at 716; see also Harper, 509 U.S. at 97, 113 S. Ct. at

2517 (depicting Griffith as imposing a “ban against ‘selective application of new rules’”

(citation omitted)). The Griffith Court expressed concern that selectively prospective

decision-making was too greatly in tension with the nature of judicial review, which

requires the adjudication of specific cases, “and each case usually becomes the vehicle

(…continued)
Consequences of Legal Change, 94 W ASH. L. REV. 645, 652-53 (2019) (discussing “a
thousand years of presumed retroactivity” of judicial rulings).


                           [J-95-2019][M.O. – Saylor, C.J.] - 14
for announcement of a new rule.”         Griffith, 479 U.S. at 322-23, 107 S. Ct. at 713.

Furthermore, the Court reasoned, once a new rule has been applied to the litigants in a

specific case, “the integrity of judicial review requires that we apply that rule to all similar

cases pending on direct review.” Id. at 323, 107 S. Ct. at 713.12 See generally Francis

X. Beytagh, Ten Years of Non-Retroactivity: A Critique and Proposal, 61 VA. L. REV.

1557, 1624 (1975) (positing that “the single most significant difficulty presently posed by

[prospectivity] -- unequal treatment of those similarly situated resulting solely from the

sheer happenstance of the judicial calendar”), cited in Beavers, 881 P.2d at 1382.

Later, the Supreme Court came to characterize Linkletter balancing relative to cases

pending on direct appeal as “unprincipled and inequitable.” Teague v. Lane, 489 U.S.

288, 304, 109 S. Ct. 1060, 1072 (1989).

       As to civil matters, the same retrenchment occurred in Harper, 509 U.S. 86, 113

S. Ct. 2510, which extended Griffith to civil cases upon the admonition that, “[t]he Court

has no more constitutional authority in civil cases than in criminal cases to disregard

current law or to treat similarly situated litigants differently.” Id. at 97, 113 S. Ct. at 2517

(quoting Am. Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 214, 110 S. Ct. 2323, 2350

(1990) (plurality) (Stevens, J., dissenting)).     Accordingly, the Supreme Court largely

ruled out the possibility of selective prospectivity across the wider range of cases.13

12 Parenthetically, it was clear from Griffith that the Supreme Court intended that new
rules should not be applied to matters in which a judgment of sentence was final. See
id. (“[W]e fulfill our judicial responsibility by instructing the lower courts to apply the new
rule retroactively to cases not yet final.”). Again, the application of procedural rules may
perhaps be viewed as an independent assessment in the analysis relating to claims that
otherwise would be barred. See supra note 8.

13 See generally Rhodes, Loving Retroactivity, 45 Fla. St. U.L. Rev. at 390 (“The
Supreme Court now abides by the doctrine that decisions applying new legal rules to
the parties govern all pending and future noncollateral adjudicative proceedings, even if
the operative events in that proceeding occurred under a different legal framework[.]”);
(continued…)
                           [J-95-2019][M.O. – Saylor, C.J.] - 15
                     C. New Rules and Unconstitutional Statutes

       The above principles, as they have evolved, apply to the application of new

federal rules. However, per what is often termed the “Sunburst Doctrine,” state courts

remain free to evaluate the propriety of prospective application of new state-level rules

on their own terms. See Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287

U.S. 358, 364, 53 S.Ct. 145, 148 (1932) (“We think the Federal Constitution has no

voice upon the subject” of whether a state court may decline to give its decisions

retroactive effect.). See generally Hammer, Retroactivity and Restraint, 41 HARV. J.L. &

PUB. POL’Y at 426-33. Since, as the Commonwealth Court recognized, this Court’s

decisions have continued to recognize a role for a balancing of the competing interests

in discrete cases, we proceed to discuss the potential application of balancing in the

context of “new rules” and judicial rulings that statutes violate a state constitution.

       It is often said in the cases that a threshold requirement to any consideration of

prospective application of a judicial decision is that it must announce a new rule or

principle of law, and indeed, such requirement has been embedded in a version of the


(…continued)
Stephen J. Hammer, Retroactivity and Restraint: An Anglo-American Comparison, 41
Harv. J.L. & Pub. Pol’y 409, 421 (2018) (discussing Harper as reiterating the “two basic
norms of constitutional adjudication’ that opposed prospectivity: first, the nature of
judicial review as distinct from legislation, and second, the need to treat similarly
situated parties the same” (quoting Harper, 509 U.S. at 95, 113 S. Ct. at 2516)).

Although the Supreme Court espoused a firm rule of retroactivity, it has otherwise
suggested that the possibility of prospective application may remain open in
extraordinary circumstances. See, e.g., Ryder v. United States, 515 U.S. 177, 184-85,
115 S. Ct. 2031, 2036-37 (1995) (indicating that “whatever the continuing validity of
Chevron Oil after Harper . . ., there is not the sort of grave disruption or inequity
involved in awarding retrospective relief to this petitioner that would bring that doctrine
into play”). Additionally, discrete considerations continue to arise in tax refund cases.
See generally Beske, Backdoor Balancing, 94 W ASH. L. REV. at 688-89.


                           [J-95-2019][M.O. – Saylor, C.J.] - 16
Linkletter-Chevron balancing test. See, e.g., Chevron Oil, 404 U.S. at 106, 92 S. Ct. at

355. Classically, this has been said to entail the overruling of clear past precedent or

the resolution of an issue of first impression that was not clearly foreshadowed. See id.

         Many courts, however, have highlighted the “considerable ambiguity in the

threshold requirement that [the] court must announce a ‘new’ legal rule.”           Davis v.

Moore, 772 A.2d 204, 227 (D.C. 2001);14 accord Teague, 489 U.S. at, 301, 109 S. Ct. at

1070 (recognizing that “[i]t is admittedly often difficult to determine when a case

announces a new rule”).15         Moreover, while judicial decisions declaring statutes

unconstitutional may not readily fit the paradigm of new rules or principles of law,

particularly when the underlying constitutional precepts are well established, the

Supreme Court of the United States has recognized that such decisions raise the same

concerns about reliance and vested rights that have animated the application of

balancing tests to determine whether the effect of new rules should be limited to

prospective application.

14 Notably, with regard to “new rules of local, i.e., District of Columbia, law,” the District
of Columbia Court of Appeals occupies a role parallel to that of a state court, in that it
retains the same independence in assessing prospectivity. Davis, 772 A.2d at 226-27
(citing Sunburst Oil, 287 U.S. at 364-65, 53 S. Ct. at 148).

15   The District of Columbia Court of Appeals elaborated as follows:

                When is a legal rule “new” enough to meet this requirement?
                To say that the test is whether the new rule is a “clear
                break,” or “newly minted,” or “not clearly foreshadowed,”
                offers little real guidance; not only do such standards invite
                subjective adjudication, but they also are not consistent with
                each other. “Not clearly foreshadowed” is a more lenient
                standard than “clear break” while “newly minted” sounds like
                it falls somewhere else on the continuum of novelty -- though
                exactly where is not easy to say.

Davis, 772 A.2d at 227.


                            [J-95-2019][M.O. – Saylor, C.J.] - 17
         In the early cases, courts generally accorded full retroactivity to judicial rulings

holding statutes to be unconstitutional via the application of a void ab initio doctrine. In

a seminal decision, Norton v. Shelby County, 118 U.S. 425, 6 S. Ct. 1121 (1886), the

Supreme Court of the United States pronounced that an unconstitutional action “confers

no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal

contemplation, as inoperative as though it had never been passed.” Id. at 442, 6 S. Ct.

at 1125.

         However, courts began to develop a hesitancy to apply the doctrine strictly,

since:
                The effect of the subsequent ruling as to [the constitutional]
                invalidity [of a statute] may have to be considered in various
                aspects,—with respect to particular relations, individual and
                corporate, and particular conduct, private and official.
                Questions 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.
Chicot, 308 U.S. at 374, 60 S. Ct. at 319. In this regard, in an oft-quoted passage from

the plurality opinion in Lemon, four Justices depicted statutory and judge-made rules of

law as “hard facts on which people must rely in making decisions and in shaping their

conduct.” Lemon, 411 U.S. at 199, 93 S. Ct. at 1468.

         Consistent with such sentiments, many courts came to recognize a “modern

trend” away from applying the void ab initio doctrine, in favor of “a more equitable and

realistic approach that is tempered by considerations of reasonableness and good-faith

reliance on the purportedly valid statute.” Perlstein v. Wolk, 844 N.E.2d 923, 931 (Ill.

2006); see also id. at 929 (opining that strict application of the void ab initio doctrine

                            [J-95-2019][M.O. – Saylor, C.J.] - 18
“unduly discounts the real-life consequences flowing from a statutory enactment”);

accord Edwards v. Allen, 216 S.W.3d 278, 291 (Tenn. 2007); Lang v. Mayor of

Bayonne, 68 A. 90,92 (N.J. 1907) (“To require the citizen to determine for himself, at his

peril, to what extent, if at all, the Legislature has overstepped the boundaries defined by

the Constitution . . . would be to place upon him an intolerable burden.”).

       In this vein, the Supreme Court of the United States departed from application of

the void ab initio doctrine in Lemon, finding it appropriate to apply a judicial ruling that a

statute violated the United States Constitution in a prospective fashion. See Lemon,

411 U.S. at 208-09, 93 S. Ct. at 1473.16 And, notably, the lead opinion both pronounced

that the prior decision finding a statute unconstitutional announced a new rule, see id. at

206, 93 S. Ct. at 1472, and engaged in a balancing assessment along the lines of the

considerations delineated in Linkletter and Chevron, see id. at 199-209, 93 S. Ct. at

1469-73, albeit that the opinion blended the discussion of prospectivity and remedies.17

See generally Reynoldsville Casket, 514 U.S. at 754, 115 S. Ct. at 1749 (positing that

“the ordinary application of a new rule of law ‘backwards,’ say, to pending cases, may or


16Although the lead opinion in Lemon was supported only by a plurality of Justices, the
result -- i.e., prospective application -- garnered majority support.

17 Lemon also has several other unique and distinguishing features, in that it concerned
government financing, predated Harper, and did not implicate the concern about
disparate treatment of similarly-situated litigants (since the relief accorded concerned
the same parties involved in the initial litigation of the issue of the constitutional validity
of the underlying statute). See Lemon, 411 U.S. at 193-94, 93 S. Ct. at 1466. The
decision is referenced here solely for the proposition that a majority of the Court
declined to enforce the invalidity of a statute retroactively, with at least four Justices
invoking equitable considerations including reliance interests. But see Reynoldsville
Casket, 514 U.S. at 762, 115 S. Ct. at 1753 (Kennedy, J., concurring) (maintaining that
the mere application of well-settled constitutional principles to discrete factual scenarios
is not the application of a new legal theory or one that had not been foreshadowed by
other precedents).


                           [J-95-2019][M.O. – Saylor, C.J.] - 19
may not, involve a further matter of remedies”). The Supreme Court has applied a

similar approach to other cases, at least in the public financing arena. See City of

Phoenix, Az. v. Kolodziejski, 399 U.S. 204, 213-15, 90 S. Ct. 1990, 1996-97 (1970);

Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S. Ct. 1897, 1900 (1969) (“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.” (citation omitted)).


               D. Additional Difficulties With Prospective Applications

       In the Davis decision, referenced above, the District of Columbia Court of

Appeals not only highlighted the ambiguity in determining whether a particular decision

has announced a new rule for purposes of the Linkletter-Chevron doctrine, see supra

Part I(C), but more broadly observed that the doctrine “is difficult to apply in a principled

and predictable fashion.”        Davis, 772 A.2d at 227; accord Commonwealth v.

Geschwendt, 500 Pa. 120, 125, 454 A.2d 991, 994 (1982) (plurality) (“Even the terms

‘prospective’ and ‘retrospective’ are deceiving in their complexities.”). The court posited

that the requirement for courts to investigate and balance reliance interests was an

“open-ended inquiry that is bereft of standards to guide it.” Davis, 772 A.2d at 227.

Noting that the pertinent questions are partly factual, the court also highlighted the

difficulty in being “expected to answer them without the benefit of a true evidentiary

record detailing the extent to which the old rule of law was relied upon.” Id. at 228; see

also id. (“The court is compelled to speculate, and to base its answers on hypotheses

that are untested and probably untestable.”).            See generally Rhodes, Loving

Retroactivity, 45 FLA. ST. U.L. REV. at 409 (“The Court does not have the structural

capacity to conduct independent investigations of the potential applications of -- and

consequences from -- its new legal pronouncements.”).            Ultimately, the District of

                           [J-95-2019][M.O. – Saylor, C.J.] - 20
Columbia Court of Appeals opted to follow the approach of the Supreme Court, settling

on the same firm (or firmer) approach of retroactivity embodied in Griffith and Harper.

See Davis, 772 A.2d at 230.

       Another primary difficulty associated with Linkletter-Chevron balancing is that

judgments about context are important to the assessment of an appropriate application.

See, e.g., Reynoldsville Casket, 514 U.S. at 755, 115 S. Ct. at 1749 (“Not all cases

concerning retroactivity and remedies are of the same sort.”). For example, although a

number of courts maintain the balancing approach for new state-level rules even after

Griffith and Harper, see, e.g., Beavers, 881 P.2d at 1382, most courts recognize a very

strong impetus in favor of retroactivity and the application of the void ab initio doctrine in

criminal cases. See, e.g., People v. Gersch, 553 N.E.2d 281, 288 (Ill. 1990) (explaining

that “in the area of criminal prosecution, the ab initio principle is especially appropriate”);

Commonwealth v. Derhammer, 643 Pa. 391, 399, 173 A.3d 723, 728 (2017) (“It is

undisputed that a conviction based on an unconstitutional statute is a nullity.”). The

areas of property, contracts and taxation may warrant greater consideration of reliance

interests, militating in favor of the prospective application of new rules. See Lunsford,

208 P.3d at 1097; see also supra note 13; Oz Gas, 595 Pa. at 146, 938 A.2d at 285

(alluding to the “perhaps-unique effect of holding that a decision regarding a tax statute

is retroactive”).

       There are many other variables, including whether a prior judicial (as opposed to

legislative) decision has been overruled, a scenario which harmonizes more comfortably

with the concept of a new judicial rule than paradigms involving unconstitutional

statutes. By way of another example, when a state court is engaging in traditional

substantive lawmaking by making adjustments to the common law, the case favoring

prospectivity are stronger. See In re L.J., 622 Pa. 126, 150, 79 A.3d 1073, 1087 (2013).


                           [J-95-2019][M.O. – Saylor, C.J.] - 21
        Notably, some commentators have observed that the courts have not been

consistent in bearing relevant contextual considerations in mind. See, e.g., Richard S.

Kay, Retroactivity and Prospectivity of Judgments in American Law, 62 AM. J. COMP. L.

37, 65 (2014) (“For the most part, . . . neither courts nor commentators have regarded

the source of the law at issue as of much consequence to the temporal effect of a

judgment.”). The many variables and inconsistencies ultimately led the Supreme Court

of the United States to remark that “[n]ot surprisingly, commentators have ‘had a

veritable field day’ with the Linkletter standard, with much of the discussion being ‘more

than mildly negative.’” Teague, 489 U.S. at 303, 109 S. Ct. at 1071 (quoting Beytagh,

Ten Years of Non-Retroactivity, 61 VA. L. REV. at 1558 & n.3).


                             E. Pennsylvania’s Approach

        The Blackwell decision, referenced by the Commonwealth Court, the parties, and

their amici, has been treated as a seminal decision in Pennsylvania on the subject of

retroactive versus prospective application.      In Blackwell, the Court determined the

applicability, on direct appellate review, of a previous holding that a statutory provision

extending the tenure of the State Ethics Commission was an unconstitutional delegation

of legislative power and was therefore void. See Blackwell, 527 Pa. at 176, 589 A.2d at

1096.

        The Blackwell Court initially explained that “the general rule followed in

Pennsylvania is that we apply the law in effect at the time of the appellate decision,” id.

at 182, 589 A.2d at 1099 (citation omitted), and 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.” Id. (citing Commonwealth v. Brown, 494 Pa. 380, 383, 431




                          [J-95-2019][M.O. – Saylor, C.J.] - 22
A.2d 905, 906-07 (1981)).18 Nevertheless, the Blackwell Court maintained (even in the

aftermath of Griffith’s overruling of Linkletter but prior to Harper’s overruling of Chevron

Oil) that retrospective application is a matter of judicial discretion to be exercised on a

case-by-case basis. See id. (citing August v. Stasak, 492 Pa. 550, 554, 424 A.2d 1328,

1330 (1981), in turn citing Linkletter, 381 U.S. at 629, 85 S. Ct. at 1738).

       Referencing Desist, 394 U.S. 244, 89 S. Ct. 1030, and Stovall, 388 U.S. 293, 87

S. Ct. 1967 -- which derived from Linkletter -- the Blackwell Court proceeded to conduct

a very brief balancing assessment under the Linkletter factors. See Blackwell, 527 Pa.

at 183-84, 589 A.2d at 1099-1100. Notably, the preceding passage of the Blackwell

Court’s opinion recognized that such balancing was only appropriate with respect to the

application of a “new rule.” Id. at 183, 589 A.2d at 1099 (“The U.S. Supreme Court has

viewed the decision of whether to apply a new rule retroactively or prospectively as a

function of three considerations . . ..” (emphasis added)).

       After having performed this balancing under the Linkletter factors, the Blackwell

Court turned to the Chevron Oil standard. The Court concluded that the Chevron Oil

test was not met, because the first prong requires the establishment of a new principle

of law, but that the relevant determination that a statute was unconstitutional did not

constitute such a new rule. See id. at 184, 589 A.2d at 1100. The Blackwell Court gave

very short shrift (if any) to the remaining Chevron Oil factors, while seeming to lack an


18 Notably, Brown had previously been criticized by a plurality of Justices in
Geschwendt, 500 Pa. 120, 454 A.2d 991, who strongly aligned themselves with the
“modern trend” favoring selective prospectivity upon equitable balancing. See id. at
134, 454 A.2d at 999 (“The ‘even handed justice’ argument myopically considers only
the interest of the disappointed litigant and ignores our responsibility to provide a fair
system of justice for all of the citizens of this Commonwealth.”). As reflected in
Blackwell and elsewhere, however, Brown has survived such criticism. See, e.g.,
Rothrock v. Rothrock Motor Sales, 584 Pa. 297, 308, 883 A.2d 511, 517 (2005) (citing
Brown).


                          [J-95-2019][M.O. – Saylor, C.J.] - 23
appreciation of the central role of a new rule to the application of both Linkletter and

Chevron Oil, as well as the integral substantive and historical relationship between the

factors delineated in those opinions.19 See id. at 185, 589 A.2d at 1100 (curtailing

balancing under Chevron Oil since “[t]hat prime impetus [i.e., that a new rule would

prejudice those formerly advantaged by an old one] is not a component in the instant

appeal”).   See generally Beske, Backdoor Balancing, 94 WASH. L. REV. at 651-52

(describing “three eras of retroactivity” jurisprudence emanating from the Supreme

Court of the United States).

      Nevertheless, the Blackwell Court’s rationale for determining that a new rule had

not been announced is significant, in that the Court reasoned that the constitutionally-

based non-delegation principles underlying the previous decision deeming the relevant

statute invalid were well established, despite the application of such principles to a

unique setting (i.e., extension of the tenure of the Ethics Commission). See id. at 184-

85, 589 A.2d at 1100 (citing Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 622-

25, 375 A.2d 1285, 1289-90 (1977)).

      The Blackwell Court proceeded to recognize the evolving concern that citizens

must rely on presumptively valid constitutional enactments. See id. at 187, 589 A.2d at

1101 (citing Lemon, 411 U.S. at 197, 93 S. Ct. at 1468, for the proposition that

“statutory or even judge made rules of law are hard facts on which people must rely in

making decisions and in shaping their conduct”).      In this vein, the Blackwell Court

summarily pronounced that “it would indeed be chaotic to act as though the offending

provision of the [statute ruled to have been invalid] had never been enacted into law.”

Id. at 187-88, 589 A.2d at 1102. For this reason, the Court declared that the ruling

19 In the latter regard, Linkletter balancing and Chevron balancing are essentially
redundant conceptions, albeit that the earlier case arose in a criminal setting and the
later one in the civil arena.


                          [J-95-2019][M.O. – Saylor, C.J.] - 24
would not be extended to transactions which already had become final. See id. at 188,

589 A.2d at 1102. In these passages from its opinion, the Blackwell Court seemed to

allow that some sort of equitable balancing might be appropriate in some set of

circumstances to mitigate harsh effects from a ruling that a statute upon which people

had relied was unconstitutional. Accord Cianfrani v. SERB, 505 Pa. 294, 300, 479 A.2d

468, 471 (1984) (determining that the existence of a presumptively valid statute, prior to

a judicial declaration of its invalidity, was “an operative fact of consequence in the

review of the claims presented” relative to retrospective versus prospective application

(citing, indirectly, to Chicot, 308 U.S. at 374, 60 S. Ct. at 318)).

       The Blackwell Court then explained -- inconsistently with its previous decision

that no new rule of law had been established -- that:

              Where an appellate decision overrules prior law and
              announces a new principle, unless the decision specifically
              declares the ruling to be prospective only, the new rule is to
              be applied retroactively to cases where the issue in question
              is properly preserved at all states of adjudication up to and
              including any direct appeal.
Blackwell, 527 Pa. at 188, 589 A.2d at 1102 (quoting Commonwealth v. Cabeza, 503

Pa. 228, 233, 469 A.2d 146, 148 (1983) (emphasis added)). Because the previous

decision deeming the statute invalid did not specifically declare the ruling to be

prospective only, the Court held that it applied to the case then before it as well as all

others pending on direct appeal where the challenge had been raised. See id.

       From this, two observations are relevant. First, the Blackwell Court extended a

principle from the jurisprudence governing new rules to rulings that statutes are

unconstitutional (albeit while otherwise relying on the same new-rules overlay as a

reason why that specific jurisprudence should not apply). Second, the brief balancing

exercise that the Blackwell Court previously had undertaken seemed to have been


                           [J-95-2019][M.O. – Saylor, C.J.] - 25
wholly irrelevant to the outcome, given that a firm rule of retroactivity was ultimately

applied to the circumstances at hand in any event.20

      Since Blackwell, this Court has continued to say that retroactive or prospective

application of state rules is a matter of judicial discretion but nevertheless has

maintained relatively firm enforcement of the general rule applying new state rules to

cases pending on direct appeal in which the issue has been preserved. See, e.g.,

Passarello, 624 Pa. at 601, 87 A.3d at 307.21 In this regard, 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 Griffith and

Harper than Linkletter and Chevron.22




20 In other words, Linkletter-Chevron balancing relative to cases in the course of
continuing litigation and selective prospectivity are inherently inconsistent with the
principle that all cases pending on direct appeal will be treated the same.

21In more cases than not, the approach has been treated more or less as in the nature
of a limiting principle, with emphasis on the issue preservation dynamic. See, e.g.,
Hays, ___ Pa. at ___, 218 A.3d at 1266-67.

22   Again, Pennsylvania courts are not alone in having great difficulty with
retrospectivity/prospectivity analysis. See, e.g., Kay, Retroactivity and Prospectivity, 62
AM. J. COMP. L. at 66 (“[T]he current confused state of the law on the possibility of
limited retroactivity of judgments demonstrates a persistent and possibly irresoluble
tension in the American view of law and of the roles of legal institutions.”); see also
supra Part I(D) and note 10.

Parenthetically, this Court’s new-rules jurisprudence is inconsistent in another aspect.
In Passarello, this Court treated its disapproval of the ruling of an intermediate court as
being in the nature of a new rule. See Passarello, 624 Pa. at 602, 87 A.3d at 308.
However, the Court has previously maintained that the disapproval of intermediate-court
precedent does not constitute a new rule. See, e.g., Kendrick v. District Attorney of
Phila. Cty., 591 Pa. 157, 171-72, 916 A.2d 529, 538 (2007). Given that it is not
presently material, we leave this incongruity for another day.


                          [J-95-2019][M.O. – Saylor, C.J.] - 26
                                F. Arguments and Analysis

         Employer’s main contentions are that this Court has the authority to limit the

effect of Protz to prospective application; Protz announced a new rule of law; and

accordingly, the Court has the power to limit the retrospective application of the ruling in

that case.    In terms of the considerations pertinent to the prospectivity/retroactivity

assessment, Employer presents its case under the Chevron criteria, see, e.g., Brief for

Appellant at 15, 20-21, 44, centering on the purpose and effect of the asserted new rule,

as well as equities associated with reliance and hardship ensuing on account of the

prior state of the law.    See Chevron, 404 U.S. at 106-07, 92 S. Ct. at 355-56.23

Employer also alludes to the administrative burdens associated with a completely

upending of Section 306(a.2) IRE determinations.

         Particularly, Employer stresses the Legislature’s focus on cost containment when

it enacted Section 306(a.2), as well as the reliance of employers and insurers on the

presumptively valid statute for over twenty years prior to Protz.       Further, Employer

observes that Section 306(a.2) “withstood several challenges to this Court which never

clearly indicated that it would invalidate the IRE provisions on constitutional grounds.”

Id. at 16; see also id. at 22-23. For this reason, Employer maintains that “the statute

was constitutional until this Court declared otherwise on June 2, 2017[.]” Id. at 16.

23   Employer emphasizes that:

               It is too late to send many [c]laimants back for independent
               medical evaluations and attempt to find job availability
               because many [c]laimants have aged to the point where they
               no longer are employable. In many of those cases, just as in
               this one, disability no longer is due solely to the work injury
               but to a plethora of co-morbidities associated with the aging
               process.

Brief for Appellant at 42-43.


                           [J-95-2019][M.O. – Saylor, C.J.] - 27
Employer also points to the Commonwealth Court’s 2014 decision in Wingrove v.

WCAB (Allegheny Energy), 83 A.3d 270 (Pa. Cmwlth. 2014), in which a non-delegation

challenge to Section 306(a.2) had been rejected. See Brief for Appellant at 277.24

       Throughout its brief, Employer strives to bolster the weight of its own interests

while minimizing those of Claimant.      For example, as noted, Employer attempts to

magnify the import of the present ruling by projecting its impact onto the broader range

of cases in which a non-delegation challenges to IREs were not raised prior to the initial

determination of their validity. See supra Part I(A) & n.7. As to Claimant, Employer

opines that he is not prejudiced by allowing a credit for the time that he received partial

disability benefits, at the total disability rate, under the invalid IRE, “because his weekly

wage payment remained the same.” Brief for Appellant at 16. Attempting to portray the

present matter as falling within a category of cases in which this Court has recognized

that it has greater discretion to apply a decision prospectively, Employer argues

extensively that Section 306(a.2) is entirely procedural in nature.          See Brief for

Appellant at 37-40 (citing L.J., 622 Pa. at 150, 79 A.3d at 1087 (“We possess greater

discretion to impose a decision prospectively only ‘if the [new rule of law] is of the

court’s own making, involves a procedural matter, and involves common law

development’” (emphasis added; citation omitted))).




24As Claimant stresses, however, few of the cases cited by Employer in this line have
anything to do with constitutional non-delegation principles. See Brief for Appellee at
11-12. With regard to Wingrove, Claimant correctly explains that the claimant’s non-
delegation arguments were rejected for lack of development and not upon a deep
review of the merits. See id. at 12 (citing Wingrove, 83 A.3d at 277).


                          [J-95-2019][M.O. – Saylor, C.J.] - 28
       Despite Claimant’s position before the Commonwealth Court, citing to Blackwell,

he now takes the position that no new rule of law is involved here.            See Brief for

Appellee at 10-11. In any event, Claimant relies heavily on the general rule applying

new rules to cases pending on direct appeal in which the relevant challenge has been

preserved. See id. at 14-23. To the degree that Linkletter-Chevron balancing would be

appropriate, Claimant maintains that Employer had no legitimate expectation of finality,

since he timely raised a non-delegation challenge; Employer will have time to adjust to

its continuing obligations given its continuing obligation to pay benefits at the total

disability rate through 2023; and there otherwise is no vested right to a “credit” on the

terms sought by Employer. See id. at 4 (“The Employer cannot assert that its rights are

fundamentally more important than those of Pennsylvania’s injured workers and

therefore it can divest those injured workers of their right to protect their own interests in

a remedy for the harm they have sustained.”). Claimant also continues to highlight the

remedial nature of the Workers’ Compensation Act. See id. at 15-16 (citing Reifsnyder,

584 Pa. at 348, 883 A.2d at 541).

       Initially, we will address Employer’s parsimonious treatment of Claimant’s

interests. First, Protz rested on the fact that the General Assembly invalidly delegated

substantive lawmaking authority -- i.e., material facets of the normative judgments

controlling which claimants will and which of them will not continue to receive benefits

past 500 weeks -- to a private entity. See Protz, 639 Pa. at 659-60, 161 A.3d at 836-37.

Thus, the notion that Section 306(a.2) can be couched as procedural, and that its

substantive import can be overlooked, is not creditable.

       Similarly, Employer’s argument that Claimant would not be prejudiced by a

selectively prospective application of Protz is facially meritless. Employer seeks a credit

for the time that Claimant received partial disability benefits on account of the invalid


                           [J-95-2019][M.O. – Saylor, C.J.] - 29
Section 306(a.2) precisely so that it can carve that time out from its 500-week

obligation, should Claimant’s benefits subsequently be converted back to partial. Such

a reduction clearly has serious financial consequences inuring to injured claimants.

       Ultimately, we find that the inertia favoring application of the general rule of

retroactive application to cases pending on direct appeal should control. Significantly,

this case concerns none of the subject areas in which this Court has observed that it

has additional latitude to implement a ruling prospectively, i.e., rules of the court’s own

making, involving procedural matters, or entailing common law development. See L.J.,

622 Pa. at 150, 79 A.3d at 1087. It does not involve public financing or tax refunds,

which places it in contrast with cases such as Oz Gas. Although there may be some

remaining latitude for a balancing of interests given the longstanding presumptive

validity of Section 306(a.2) and employers’ and insurers’ understandable reliance

thereon for many years, we find that Employer has not shown that its interests are so

substantially predominant as to justify a departure from the default approach.25

       Claimant had a right to be free from an unconstitutional delegation of legislative

power affecting his substantive rights, which will be vindicated here. Significantly, this

case arises in the landscape of the substantial compromises and tradeoffs effected in a

workers’ compensation system, to which this Court has alluded many times. See, e.g.,

Triangle Bldg. Ctr. v. WCAB (Linch), 560 Pa. 540, 548, 746 A.2d 1108, 1112 (2000)

(discussing the underlying trade-off between loss spreading and insulation of employers

from tort liability inherent in the workers' compensation system).      And the claimants’

interests are substantially elevated in the IRE context, in light of the “severe and explicit


25 We also appreciate that the Legislature has signaled its approval of the Sixth Edition
Guides via its enactment of Section 306(a.3) in the aftermath of Protz. For the above
reasons and those stated below, however, we find this factor, as well, to be insufficient
to tip the balance in favor of selective prospectivity.


                          [J-95-2019][M.O. – Saylor, C.J.] - 30
repercussions . . . upon claimant’s entitlement to continuing benefits,” without any

evaluation     (administrative,   judicial,   or   otherwise)   of   the   traditional   disability

considerations of ability to work and job availability. I.A. Constr., 635 Pa. at 561-62, 139

A.3d at 159-60. In view of the courts’ institutional limitations, see supra Part I(D), and

the absence of any developed, legislative-type record, we decline to proceed with an

attempt to engage in any deeper weighing of the important, respective, competing

interests involved here.

       Instead, discerning no clear predominance of weight in Employer’s policy

arguments, we apply the general rule of retroactivity and hold that the Commonwealth

Court did not err in applying the Protz standard “to the case on appeal at the time of this

Court’s decision,” retroactive to the date of the IRE. Dana Holding, ___ Pa. at ___, 208

A.3d at 461.

       Justice Dougherty’s concurring opinion cites the Blackwell decision for the

proposition that this Court applies Linkletter balancing in criminal cases and Chevron Oil

balancing in civil ones. See Concurring Opinion, slip op. at 2. In fact, as previously

explained, Blackwell itself applied both of these overlapping tests distinctly within the

confines of a single civil case. See supra Part I(E). Additionally -- and inconsistent both

with Blackwell’s own distinct treatment of the two tests and the assertion by the present

concurrence -- the Blackwell Court specifically opined that there was no difference

between the balancing criteria applied, respectively, in civil and criminal cases. See

Blackwell, 589 A.2d at 184 n.6, 589 A.2d at 1100 n.6.

       The concurrence proceeds to criticize this opinion for failing to either overrule

Blackwell or to apply one particular line of reasoning from the shifting and sometimes

irreconcilable rationale employed by the Blackwell Court. See Concurring Opinion, slip

op. at 4. The fact of the matter is, however, that our decision harmonizes with the final


                            [J-95-2019][M.O. – Saylor, C.J.] - 31
line of Blackwell’s reasoning, which applied of the general rule of retroactivity to cases

pending on direct appeal. See Blackwell, 527 Pa. at 188, 589 A.2d at 1102. Our

hesitation in crediting this facet of Blackwell outright is that the Blackwell Court framed

the approach as applicable to instances in which prior law is overruled and a new

principle is announced, see id.; whereas, we are more of the view that “the mere

application of well-settled constitutional principles to discrete factual scenarios is not the

application of a new legal theory or one that had not been foreshadowed by other

precedents.” Reynoldsville Casket, 514 U.S. at 762, 115 S. Ct. at 1753 (Kennedy, J.,

concurring).26

       Accordingly, rather than overruling Blackwell in its entirety, we have chosen to

deconstruct the decision, see supra Part I(E), and to analyze the present case in light of

the underlying themes and principles that are of relevance in this difficult area of the

law, see supra Parts I(B)-(F). Ultimately, our present decision stands for the principle

that the general rule in Pennsylvania will be that, at least where prior judicial precedent

isn’t overruled, a holding of this Court that a statute is unconstitutional will generally be

applied to cases pending on direct appeal in which the constitutional challenge has

been raised and preserved. At the present point in time, however, the Court is not of a

mind to exclude the possibility of equitable balancing in extraordinary cases, particularly

since no party this appeal has advocated any such position.




26 And notably, again, this aspect of Blackwell (i.e., the application of a principle that it
has said applies when the underlying decision has announced a new principle of law)
stands in stark contrast to the Blackwell Court’s prior pronouncement that no new rule of
law was in play. See Blackwell, 527 Pa. at 185, 589 A.2d at 1100 (“Blackwell II
established no new principle of law nor was there a clear break with past precedent.”).


                           [J-95-2019][M.O. – Saylor, C.J.] - 32
                                             II.

       Turning to Employer’s alternative issue based on its right to the due course of

law, such entitlement derives from the Remedies Clause in Article I, Section 11 of the

Pennsylvania Constitution, which provides:

              All courts shall be open; and every man for an injury done
              him in his lands, goods, person or reputation shall have
              remedy by due course of law, and right and justice
              administered without sale, denial or delay. Suits may be
              brought against the Commonwealth in such manner, in such
              courts and in such cases as the Legislature may by law
              direct.
PA. CONST. art. I, §11.

       Although the rights that this provision confers overlap with constitutional due

process norms, due course of law stands as an independent guarantee of legal

remedies for private wrongs in Pennsylvania courts. In Menges v. Dentler, 33 Pa. 495

(Pa. 1859), this Court explained that the provision for due course of law requires that

adjudication must occur pursuant to the temporally applicable law:

              The law which gives character to a case, and by which it is
              to be decided (excluding the forms of coming to a decision),
              is the law that is inherent in the case, and constitutes part of
              it when it arises as a complete transaction between the
              parties. If this law be changed or annulled, the case is
              changed, and justice denied, and the due course of law
              violated.
Id. at 498.

       The Court, however, has since clarified that the due course of law protects only

vested rights — meaning “a title, legal or equitable, to the present or future enforcement

of a demand, or a legal exemption from a demand made by another.” Lewis v. Pa. R.

Co., 220 Pa. 317, 324, 69 A. 821, 823 (1908). Accordingly, and as the Commonwealth

Court aptly explained: “the due course of law provision is invoked when a change in the

                          [J-95-2019][M.O. – Saylor, C.J.] - 33
legislation attempts to alter or eliminate a vested or accrued cause of action.” Dana,

195 A.3d at 643 (citations omitted).

       Employer argues that its right to due course of law impedes any retroactive

application of Protz, because at the time of Claimant’s IRE, Section 306(a.2) was valid.

The company submits that the IRE, when performed in July 2014, accrued as a partial

defense, and thus, it is entitled to the benefit of the disability modification indefinitely, or

at least for the time elapsing before Protz was decided.

       However, as the Commonwealth Court observed, Employer cites no authority

suggesting that the due process of law is applicable whenever a statute is found to be

unconstitutional.   See Dana, 195 A.3d at 644.           In any event, we agree with the

Commonwealth Court that a disability modification is not vested when it remains subject

to a preserved challenge pursued by a presently aggrieved claimant. See Konidaris,

598 Pa. at 71, 953 A.2d at 1240 (stating a vested right is “something more than a mere

expectation, based upon an anticipated continuance of existing law”).



       The order of the Commonwealth Court is affirmed.



       Justices Baer, Todd, Donohue, Wecht and Mundy join the opinion.

       Justice Dougherty files a concurring opinion.




                           [J-95-2019][M.O. – Saylor, C.J.] - 34
