Filed in Supreme Court

FEB 4 2014
IN THE SUPREME COURT OF PENNSYLVANIA

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No. 77 MAP 2013 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, Appellee, v. D. BRUCE HANES, in his official capacity as Clerk of the Orphans Court of Montgomery County, Appellant.

REPLY BRIEF FOR APPELLANT

Appeal from the Order of September 12, 2013 in the Commonwealth Court of Pennsylvania at Docket No. 379 MD 2013

Raymond McGarry Michael P. Clarke Joshua M. Stein Rudolf Clarke, & Kirk, LLC Philip W. Newcomer Eight Neshaminy Interplex Maureen E. Herron Trevose, PA 19053 Natasha Taylor-Smith (215)633-1890 Nicole R. Forzato Montgomery County Solicitor's Office One Montgomery Plaza, Ste. 800 P.O. Box 311 Norristown, PA 19404-0311 (610) 278-3033

Gerald Lawrence Peter D. St. Phillip Lowey Dannenberg Cohen & Hart, P.C. Four Tower Bridge 200 Barr Harbor Drive Suite 400 W. Conshohocken, PA 19428 (610)941-2760

Received in Supreme Court FEB 0 4 2014

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES I. REPLY ARGUMENT A. The Commonwealth Court Erred By Refusing To Allow Hanes To Raise The Unconstitutionality Of Pennsylvania's DOMA As A Defense To The Department's Mandamus Action 1. Long-Standing Precedent Of This Court Permits A Public Official Who Is Sued In Mandamus Concerning The Exercise Of Discretionary Duties To Raise The Issue Of Constitutionality As A Defense 2. The Decision Of The Clerk Of The Orphans Court To Issue Or Deny A Marriage License Is A Discretionary Act, Allowing Hanes To Raise The Unconstitutionality Of Pennsylvania's DOMA As A Defense To This Action B. This Court Should Decide The Issue Of The Constitutionality Of Pennsylvania's DOMA C. The Department Underscores The Patent Unconstitutionality Of Pennsylvania's DOMA By Failing To Articulate How It Advances Any Legitimate State Interest 11. CONCLUSION ii 1

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TABLE OF AUTHORITIES Cases , F. Supp.2d Bishop v. US. ex rel. Holder, 2014 WL 116013, *1 (N.D. Okla. Jan. 14, 2014) Com. v. B.D.G., 959 A.2d 362(Pa. Super. 2008)(en bane) Com. v. Spontanelli, 791 A.2d 1254 (Pa. Cmwlth. 2002) Com. ex rel. Brown v. Heck, 251 Pa. 39, 95 A. 929(1915) Com. ex rel. Carson v. Mathues, 210 Pa. 372, 59 A. 961 (1904) Com. ex rel. Sennett v. Sloan, 52 Pa. D.&C.2d 283(Dauphin Co. 1971) Com. ex rel. Third School Dist. ofthe City of Wilkes Barre v. James, 135 Pa. 480, 19 A. 950(1890) Crozer Chester Med. Ctr. v. Dep't ofLabor & Indus., Bureau of Workers Comp., Health Care Servs. Review Div., 610 Pa. 459, 22 A.3d 189(2011) Donnelly's Estate, 113 Pa. Super. 274, 173 A. 876(1934) Eschelman v. Agere Systems, Inc., 554 F.3d 426(3d Cir. 2009) Garden State Equal. v. Dow, 216 N.J. 314, 79 A.3d 1036 (Oct. 18, 2013) Griego v. Oliver, P.3d 2013 WL 6670704 (N.M. Dec. 19, 2013) Harney v. Russo, 435 Pa. 183, 255 A.2d 560(1969) Page

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) Hebel v. West, 803 N.Y.S. 242(App. Div. 2005, appeal den'd, 868 N.E.2d 662(N.Y. 2006) , F. Supp.2d Kitchen v. Herbert, 2013 WL 6697874(D. Utah Dec. 20, 2013) Lockyer v. City and County ofSan Francisco, 95 P.3d 459(Cal. 2004) Marbuty v. Madison, 5 U.S. 137 (1803) New Jersey v. T L.O., 468 U.S. 1214(1984) Obergefell v. Wymyslo, F. Supp.2d , 2013 WL 6726688 (S.D. Oh. Dec. 23, 2013) Rox Coal Co. v. Workers'Compensation Appeal Board (Snizaski), 570 Pa. 60, 807 A.2d 906(2002) United States v. Burke, 504 U.S. 229(1992) United States v. Windsor, U.S. 133 S. Ct. 2675 (2013).

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Constitutional Provisions, Statutes & Rules of Court Pa. Const. Art. 9 § 4 16 P.S. § 3403 16 P.S. § 4302 20 Pa. C.S. § 711(9) 23 Pa. C.S. § 1102 23 Pa. C.S. § 1306(a)(1) 4 6 5 ,5,9 1,14 5,7

23 Pa. C.S. 1307 23 Pa. C.S. § 1308 23 Pa. C.S. § 1704 42 Pa. C.S. § 721(2) Pa. R.A. P. 2119(a)

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I. REPLY ARGUMENT A. The Commonwealth Court Erred By Refusing To Allow Hanes To Raise The Unconstitutionality Of Pennsylvania's DOMA As A Defense To The Department's Mandamus Action Relying in error upon Com. ex rel. Third School Dist. of the City of Wilkes Barre v. James, 135 Pa. 480, 19 A. 950 (1890), the Commonwealth Court refused to hear D. Bruce Hanes ("Hanes"), Clerk of the Orphans' Court of Montgomery County, argue in defense of this mandamus action that the patently discriminatory statute which the Pennsylvania Department of Health ("Department") was seeking to enforce is unconstitutional. Opinion at 29-30. • No doubt recognizing that James is readily distinguishable from the present case, the Department contends at length that the Commonwealth Court's refusal to weigh the constitutionality of Pennsylvania's DOMA I is justified by a case from California2 and another from New York.3 See Department's Brief at 23-27. While it seeks to

I In this reply, as in his principal brief, Hanes refers to 23 Pa. C.S. § 1102 (defining "marriage" as a civil contract between a man and a woman)and 23 Pa. C.S. § 1704 (declaring it the "public policy of this Commonwealth that marriage shall be between one man and one woman") collectively as Pennsylvania's Defense of Marriage Act("Pennsylvania's DOMA").
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v. City and County ofSan Francisco, 95 P.3d 459 (Cal. 2004).

Hebel v. West, 803 N.Y.S. 242(App. Div. 2005), appeal den'd, 868 N.E.2d 662(N.Y. 2006)
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distract this Court with cases from beyond our Commonwealth's borders, the Department makes no effort to address controlling authorities from this very Court which permit Hanes to raise the now-obvious unconstitutionality of Pennsylvania's DOMA as a defense to the Department's mandamus action. 1. Long-Standing Precedent Of This Court Permits A Public Official Who Is Sued In Mandamus Concerning The Exercise Of Discretionary Duties To Raise The Issue Of Constitutionality As A Defense

In Com. ex rel. Carson v. Mathues, 210 Pa. 372, 59 A. 961 (1904), the Attorney General brought a mandamus action against the State Treasurer to override the Treasurer's refusal to comply with a statute setting the salaries of judges. 210 Pa. at 374-75. In opposing the mandamus action, the Treasurer argued that the statute was unconstitutional, and the primary question discussed by the trial court was "whether or not the State Treasurer, being a ministerial officer, had the right in his answer to raise the constitutional question as a defense to his refusal to honor [the statute]." Id. at 380. The trial court determined that "the weight of authority appears to be in favor of the cases which hold to the right, and in some instances the duty, of certain administrative officers to refuse an act under what they honestly believe to be an unconstitutional act." Id. at 390(emphasis added). The trial court went on to consider the Treasurer's constitutionality defense and issued a writ of mandamus after concluding that the statute was
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constitutional. Id. at 391-412. On appeal, this Court affirmed the trial court, expressly considering the Treasurer's defense that the statute at issue was unconstitutional. Id. at 422-31. Mathues was the first of a number of mandamus actions in which Pennsylvania's courts, including this Court, permitted the defense of a statute's unconstitutionality to be considered in a mandamus action. See, e.g., Com. ex rel. Brown v. Heck, 251 Pa. 39, 95 A. 929 (1915)(addressing the constitutionality of a statute when raised as a defense to a mandamus action against a judge); Harney v. Russo, 435 Pa. 183, 255 A.2d 560 (1969) (permitting a municipality to defend against a mandamus action by raising the unconstitutionality of the statute at issue); In re Donnelly's Estate, 113 Pa. Super. 274, 173 A. 876, 878 (1934)(mandamus petitioner's argument that respondent county commissioners could not raise the constitutionality of the law at issue was "without merit"); Com. ex rel. Sennett v. Sloan, 52 Pa. D.&C.2d 283, 298-308 (Dauphin Co. 1971)(following Mathues in holding that the State Treasurer may raise the unconstitutionality of a statute as a defense to a mandamus action). The Mathues decision and its progeny came after James, the 19th Century decision upon which the Commonwealth Court rested its refusal to hear Hanes argument that Pennsylvania's DOMA can no longer be

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considered constitutional in the wake of the United States Supreme Court's decision in United States v. Windsor, U.S. , 133 S. Ct. 2675 (2013).

Tellingly, the Department fails to address the critically important — and indeed controlling — Mathues line of cases in its brief. 2. The Decision Of The Clerk Of The Orphans Court To Issue Or Deny A Marriage License Is A Discretionary Act, Allowing Hanes To Raise The Unconstitutionality Of Pennsylvania's DOMA As A Defense To This Action

In its decision below, the Commonwealth Court attempted, albeit unpersuasively, to do something the Department does not undertake in its brief before this Court — namely, to distinguish Mathues from the present case. Opinion at 30-31. Specifically, the Commonwealth Court stated: [T]he instant ease[, like James,] involves a mandamus action to compel a court clerk with no discretionary authority to perform his mandatory ministerial duty, whereas the foregoing cases [i.e., Mathues and its progeny] involved constitutional officers with discretionary authority. Id. at 31. The Commonwealth Court is wrong, both about the constitutional nature of Hanes' office and about the discretionary nature of his duties with respect to the issuance of a marriage license. Hanes is not some appointed bureaucratic minion. Hanes, as Register of Wills and Clerk of the Orphans' Court of Montgomery County, holds an elected office which, like the office held in Mathues, is a creature of the Pennsylvania Constitution. Pa. Const. Art. 9, § 4 (enumerating "register of
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wills" among elected "county officers"); see also 16 P.S. § 4302(Register of Wills is Clerk of the Orphans Court in Class 2 and 2A counties). Moreover, the Commonwealth Court misclassifies Hanes' decision of whether or not to issue a marriage license as a ministerial act. Under Pennsylvania law, it is a discretionary act performed as a judicial function. Section 711(9) of the Probate, Estates and Fiduciaries Code ("Probate Code") provides that "[t]he jurisdiction of the court of common pleas over the following shall be exercised through its orphans' court division: Marriage licenses, as provided by law." 20 Pa. C.S. § 711(9) (emphasis added). Section 1306 of the Marriage Law requires Hanes, as Clerk of the Orphans' Court, to examine each applicant for a marriage license under oath to determine "the legality of the contemplated marriage." 23 Pa. C.S. § 1306(a)(1)(emphasis added). Hanes shall issue a marriage license "if it appears from properly completed applications on behalf of each of the parties to the proposed marriage that there is no legal objection to the marriage." 23 Pa. C.S. 1307 (emphasis added). Furthermore, "[i]f the issuance of a marriage license is refused, upon request of the applicants, the proceedings shall immediately be certified to the court" for a prompt hearing "by a judge of the courtH" 23 Pa. C.S. § 1308 (emphasis added). These statutory provisions make plain that, when he is determining whether to

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issue a marriage license, Hanes is charged with making a determination of the proposed marriage's legality which is immediately reviewable by the Orphans Court on request of the applicants. At issue here is a discretionary determination of legality that is judicial in nature — not a mere ministerial act of filing a public record, as was at issue in James. 19 A. at 950 (describing clerk of quarter sessions' responsibility for filing resolutions of school boards as being "purely ministeriar). Upon his election to office, Hanes took an oath of office, prescribed by statute, in which he swore to "support, obey and defend the Constitution of the United States, and the Constitution of this Commonwealth, and to discharge the duties of his office with fidelity[.]" 16 P.S. § 3403. If Hanes is to be true to his oath, he cannot ignore the obvious constitutional implications of Windsor when faced with determining the legality of a proposed marriage of a same-sex couple applying for a license. The impact of that watershed Supreme Court decision upon any state statute prohibiting same-sex marriage was plain to Justice Scalia, who made the following observation in his Windsor dissent: [T]he real rationale of today's opinion ... is that DOMA is motivated by " 'bare ... desire to harm'" couples in same-sex marriages. [H]ow inevitable [it is] to reach the same conclusion with regard to state laws denying same-sex couples marital status.

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133 S. Ct. at 2709 (emphasis added; internal citation omitted). Just seven months post-Windsor, courts already have invoked that decision while striking down state-law impediments to same-sex marriage in five states.4 Hanes is aware of no post-Windsor cases reaching the opposite conclusion. Section 1306(a)(1) of the Marriage Law charges Hanes with the responsibility of making a post-Windsor determination of"the legality of the contemplated marriage" of same-sex couples who apply for marriage licenses in Montgomery County. 23 Pa. C.S. § 1306(a)(1) (emphasis

added). The Department thunders that Hanes must await word from the courts on this issue because, under Marbury v. Madison, "[i]t is emphatically

Bishop v. US. ex rel. Holder, F. Supp.2d , 2014 WL 116013, *1 (N.D. Okla. Jan. 14, 2014)("The Court holds that Oklahoma's constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendrnent to the U.S. Constitution"); Obergefell v. Wymyslo, F. Supp.2d , 2013 WL 6726688 (S.D. Oh. Dec. 23, 2013)(striking down Ohio's constitutional and statutory bans upon the recognition of lawful same-sex marriages from other states); Kitchen v. F. Supp.2d Herbert, , 2013 WL 6697874, *18 (D. Utah Dec. 20, 2013)(striking down a state constitutional amendment prohibiting same-sex marriage because the state lacked a rational reason for denying same-sex couples the right to marry); Griego v. Oliver, P.3d 2013 WL 6670704, *22 (N.M. Dec. 19, 2013) ("Denying same-gender couples the right to marry and thus depriving thern and their families of the rights, protections, and responsibilities of civil marriage violates the equality demanded by the Equal Protection Clause of the New Mexico Constitution"); Garden State Equal. v. Dow, 216 N.J. 314, 319, 79 A.3d 1036, 1038 (Oct. 18, 2013) (refusing to stay trial court decision that New Jersey must extend the right of civil marriage to same-sex couples in light of Windsor).
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the province and duty of the judicial department to say what the lavv is." Marbury v. Madison, 5 U.S. 137, 177(1803). What the Department and the Commonvvealth Court overlook, however, is that Hanes is -ftmctioning under the Marriage Law as a part of "the judicial department that bears the province and duty of saying what the lavv is." Id. His discretionary

determination that Pennsylvania's DOMA is unconstitutional — and thus is not a legal impediment to the issuance of marriage licenses to same-sex couples — can and should be reviewed here given this Court's controlling decision in Mathues. The constitutional issue should not be put off for "another day." Department's Brief at 16, B. This Court Should Decide The Issue Of The Constitutionality Of Pennsylvania's DOMA If this Court determines, as it should, that the Commonwealth Court erred in failing to consider 1-lanes argument that Pennsylvania's DOMA is unconstitutional, it should not rnerely remand the case to the Commonwealth Court for consideration of the constitutional question. Instead, this Court should decide the question now. As explained in Hanes' principal brief, the Commonwealth Court did not have jurisdiction to rule on the Department's rnandamus action. See Hanes' Brief at 44-54. Therefore, a remand to the Commonvvealth Court would be improper. Moreover, judicial economy

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dictates that this Court decide the constitutional issue presented by this appeal. An appellate court, of course, has authority to remand a case to a lower court for correction of an error or for further consideration of an issue. However, in this case, the Commonwealth Court should not have asserted jurisdiction when original jurisdiction properly rested with the Supreme Court. 42 Pa. C.S. § 721(2). As stated above, Hanes functions as an arm of the court and performs discretionary acts when deciding whether to issue a marriage license pursuant to the Marriage Law. See 20 Pa. C.S. § 711(9). Accordingly, original jurisdiction for a petition for mandamus relief against Hanes would be with this Court rather than the Comrnonwealth Court. 42 Pa. C.S. § 721(2). ln addition, to remand this case to the Commonwealth Court would contradict the sound principles ofjudicial economy. The Department seeks to delay a ruling on the constitutionality of this law and desires this Court to put aside this important issue "for another day." Such a delay, however, is inappropriate given the fact that this case presents a vital question concerning the fundamental right to marry. The constitutional question to be addressed is purely a question of law, making this Court's review both "de novo and plenary." Crozer Chester Med. Ctr. v. Depil of Labor &

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Bureau of Workers Comp., Health Care Servs. Review Div., 610 Pa. 459, 22 A.3d 189, 194 (2011). Therefore, it is this Court that should consider the merits of Hanes' constitutional defense and rule on the historic question of the validity of Pennsylvania's DOMA under the United States and Pennsylvania Constitutions. C. The Department Underscores The Patent Unconstitutionality Of Pennsylvania's DOMA By Failing To Articulate How It Advances Any Legitimate State Interest Nowhere in its brief does the Department argue that the

constitutionality of Pennsylvania's DOMA should be upheld. Although it acknowledges Hanes' argurnent that Pennsylvania's DOMA is

unconstitutional, the Department has not presented argument in opposition to Hanes' position. The Department's failure to contest this issue was intentional. The Department prefers that the constitutional issue "be decided on another day," Department's Brief at 16. Ignoring the fact that Hanes began issuing marriage licenses to samesex couples because Windsor's rationale had rendered Pennsylvania's DOMA effectively unconstitutional, the Departrnent contends that "this action in mandamus is not about whether same-sex couples have the constitutional right to be married in the Commonwealth." id. (emphasis in original). Because of Mathues, supra and its progeny, however, this action

in mandamus rnost certainly is about whether same-sex couples have the constitutional right to be married in the Commonwealth. Hanes has argued in defense of this mandamus action that Pennsylvania's DOMA is unconstitutional under every level of scrutiny — from the rational basis test that all laws must satisfy, to the intermediate level of scrutiny applied to laws which discriminate on the basis of gender, to the strict scrutiny analysis applied to laws restricting fundamental rights. Faced with these compelling arguments, the Department has chosen to rernain silent, and its silence speaks volumes. The Department apparently is unable to articulate even a rational basis for denying same-sex couples the right to marry. It is not alone in its inability to do so. See Kitchen v. Herbert, F. Supp.2d

2013 WL 6697874, *18 (D. Utah Dec. 20, 2013)("the State of Utah has not demonstrated a rational, much less a compelling, reason why the Plaintiffs should be denied their right to marry"). By failing to respond to Hanes constitutional arguments, the

Department has not provided this Court with a basis to find Pennsylvania's DOMA constitutional — in effect conceding the law's unconstitutionality. The Department does invoke the notion that all statutes are presumed to be constitutional. Department's Brief at 20. A presumption, however, is the beginning, not the end, of a court's analysis. Here, the presumption is

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rebutted by the inevitable implications of Windsor and the quickly cresting wave of post-Windsor decisions invalidating state law barriers to same-sex marriage from New Jersey to Ohio to Oklahoma to New Mexico to Utah. The Departrnent essentially has forfeited its opportunity to argue the constitutionality of Pennsylvania's DOMA in the present case. "The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system from the inquisitorial one." United

States v. Burke, 504 U.S. 229, 246 (1992) (Scalia J., concurring).' Accordingly, each advocate bears the burden of properly and sufficiently presenting appellate contentions to the appeals court. New Jersey v. TL.O., 468 U.S. 1214 (1984). The Pennsylvania Rules of Appellate Procedure provide that a party must make an argument in its appellate brief for each question before the Court. Pa. R.A.P. 2119(a). When a party fails to develop an argument with respect to an issue on appeal and fails to cite any legal authority, the issue is waived. See Rox Coal Co. v. Workers Compensation Appeal Board

(Snizaski), 570 Pa. 60, 807 A.2d 906 (2002) (wherein the Pennsylvania

The Supreme Court's Burke decision has been modified on other grounds that are not relevant here by the Small Business Protection Act of 1996, as stated in Eschelman v. Agere Systems, Inc., 554 F.3d 426, 441 (3d Cir. 2009).
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Supreme Court held that Employer had waived its right to argue Claimant was not entitled to a reinstatement by stipulating to proceed by claim petition when Employer had not argued this issue in its brief). See also Com. v. Sponlanelli, 791 A.2d 1254, 1259 n. 11 (Pa. Cmwlth. 2002)(mere issue spotting without analysis or legal citation to support assertion precludes appellate review). The Pennsylvania Superior Court well-

explained the rationale for this rule when it stated that an appellate court "is neither obliged, nor even particularly equipped, to develop an argument for a party. To do so places the Court in conflicting roles of advocate and neutral arbiter." Com. v. 13.D.G., 959 A.2d 362, 371-72(Pa. Super. 2008)(en bane). This Court would be acting well within the confines of its discretion were it to conclude that the Department has waived any contest to a finding that Pennsylvania's DOMA is unconstitutional. The Department presents no legal authority in support of any argument that Pennsylvania's DOMA continues to be constitutional in light of Windsor. The Department even fails to articulate how Pennsylvania's denial of marriage rights to same-sex couples is rationally related to the advancement of any legitimate governmental interest. Whether the Court views the Department's failure through the lens of waiver or as the tell-tale

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sign of a constitutionally infirm statute, the end result is the same: Pennsylvania's DOMA must be declared unconstitutional. II. CONCLUSION Pennsylvania's Defense of Marriage Act, 23 Pa. C.S. §§ 1102 & 1704, is unconstitutional, and the Cornmonwealth Court erred by compelling Hanes to comply with that patently discriminatory law. D. Bruce Hanes, in his official capacity of Clerk of the Orphans Court of Montgomery County, therefore requests that this Court reverse the Commonwealth Court's September 12, 2013 Order granting judgment in mandamus to the Department of Health,

Respectfully submitted,

Raymond McGarry (Atty. Id. 56520) Joshua M. Stein (Atty. Id. 90473) Philip W. Newcomer (Atty. Id. 60055) Maureen E. Herron (Atty. Id. 68055) Natasha Taylor-Srnith (Atty. Id. 83469) Nicole R. Forzato (Atty. Id. 89901) Montgomery Coun0;Solicitor's Office One Montgomery Plaza, Suite 800 P.O. Box 311 Norristown, PA 19404-0311 (610)278-3033

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Gerald Lawrence (Atty. Id. 69079) Peter D. St. Phillip (Atty. Id. 70027) Lowey Dannenberg Cohen & Hart, P.C. Four Tower Bridge 200 Barr Harbor Drive, Suite 400 W. Conshohocken, PA 19428-2977 (610)941-2760 Michael P. Clarke (Atty. Id. 63378) Rudolf Clarke & Kirk, LLC Eight Nesharniny Interplex Trevose, PA 19053 (215)633-1890 Attorneys for Appellant, D. Bruce Hanes Dated: January 31, 2014

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WORD COUNT I hereby certify, pursuant to Pa. R.A.P. 2135(d), that the Reply Brief for the Appellant conforms with the 7,000 word limit of Pa. R.A.P. 2135(a)(3) because the word processing system used to prepare the brief indicates a word count of 3,846 words.

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Philip W. Newcomer, Esquire Attomey Registration No. 60055 Montgomery County Solicitor's Office One Montgomery Plaza, Suite 800 P.O. Box 311 Norristown, PA 19404-0311 (610)278-3033 Counsel for Appellant

PROOF OF SERVICE I hereby certify that 1 am on this day serving two copies of the Appellant's Reply Brief upon the persons indicated below in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121: Service by U.S. Mail addressed as follows: Alison Taylor, Esquire Audrey Feinman Miner, Esquire DEPARTMENT OF HEALTH 825 Health & Welfare Building 625 Forster Street Harrisburg, PA 17108 (717) 783-2500 Counselfor Appellee James D. Schultz, Esquire Gregory E. Dunlap. Esquire OFFICE OF GENERAL COUNSEL t1ì 333 Market Street, 17 Floor Harrisburg, PA 17101 (717)783-6563 Counselfor Appellee

Robert C. Heim, Esquire Alexander R. Bilus, Esquire William T. McEnroe, Esquire Joanna L. Barry, Esquire DECHERT LLP Cira Center 2929 Arch Street Philadelphia, PA 19104-2808 Counselfor Amicus Curiae David S. Cohen, Esquire 3320 Market Street Philadelphia, PA 19104 Counselfor Amicus Curiae Mr. James Schneller 430 E. Lancaster Ave. E25 Saint Davids,PA 19807 Amicus Curiae — Pro Se

44-Philip W. Newcomer, Esquire Attorney Registration No. 60055 Montgomery County Solicitor's Office One Montgomery Plaza, Suite 800 P.O. Box 311 Norristown, PA 19404-0311 (610)278-3033 Counsel for Appellant Dated: January 31, 2014

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