Can Protz be applied retroactively?

Ultimately, the Supreme Court affirmed the Commonwealth Court’s holding that the retroactivity of the Protz decision dates back to the date of the IRE.

In rendering its Decision, the Supreme Court reviewed the law in various other states and federal districts. The Court noted that there are initially two (2) scenarios when new law is issued: (1) cases that are actively in litigation and the issue(s) is/are preserved throughout the litigation; or (2) applying new law to cases that have become final. Each scenario presents with different results. In Dana Holding, the Court only addressed scenario number 1. As such, the Supreme Court has not addressed scenario number 2.  

After reviewing the prior Pennsylvania caselaw on the retroactivity of new law in scenario number 1, the Court held that unless the appellate decision rendering the new law specifically states that it is to be applied prospectively, the new rule of law is to be applied retroactively to cases where the issue in question is properly preserved at all levels of adjudication, including any direct appeal.  

Turning to the Dana Holding case specifically, the Court held that the parties had preserved the constitutionality of the IRE provisions during the litigation of the initial Modification petition. The litigation involving the Modification Petition was ongoing at the time Protz was issued. Thus, the Court held that the Protz decision should be applied retroactively to the date of the IRE.

The issue of whether new law should be applied retroactively to final cases is still an open issue.