This month on SCOPAblog, the court issued 5 precedential opinions and 8 grants of allocatur.  On the opinion side, I am most interested in N.E.M.  Facially, the case involves a relatively niche area of law: the nature of review of petitions for specialized review of juvenile-delinquent placements under Pa.R.A.P. 1612.  In short, the Superior Court had adopted a practice of fairly summary treatment of these petitions, sometimes reviewing them without all of the materials necessary to do so, and generally disposing of them without written opinion in per curiam orders.  The Court has clarified that the Superior Court should be conducting full review of the petitions, and, although stopping short of adopting a per se rule that it should not dispose of them without a written opinion, noted its "confiden[ce] that the Superior Court understands the fundamental purposes of intermediate appellate review are to promote adherence to the rule of law, correct lower court errors and assist in the development of the law" and that "[t]o achieve these purposes, appellate courts must provide explanations for their rulings."

The Court's statements in this regard might be read as evincing some ambivalence about the gap between appellate review in theory and in practice.  (I will spare you the Yogi Berra quote.)  In theory, appellate courts ensure that trial courts are following the law and operating within the bounds of reasonable discretion by explaining how the law applies to the particular case, which provides guidance for trial judges and litigants, and which provides deliberative justice to litigants, giving them the vindication of fair win, or the peace of a fair loss.  In theory, every court decision should come with an explanation.

But in practice, appellate courts don't always do this.  All of Pennsylvania's courts have dockets that they dispose of without written opinions in per curiam orders.  And even in cases with written opinions, advocates and litigants are well-armed with stories about how appellate courts have appeared to, for example, fudge waiver doctrine to avoid reaching a case's merits, or recharacterize their arguments in a way that they are easy to reject, or adopt an opinion of the trial judge which was issued before, and, thus, did not respond to, their counterarguments to it analysis.

In my view, the problem is not that they don't want to; it's that they can't.  In 2022, the last year for which caseload statistics are publicly available, the Commonwealth Court took on approximately 600 original-jurisdiction matters, an another approximately 2,000 appellate-jurisdiction matters.  Although its rules pertaining to how many judges sit on a particular case are somewhat byzantine, by my calculation, it works out to a approximately 40 trials and 400 appeals per judge.  The Superior Court, which is the busiest appellate court in the nation, took on approximately 6,500 full-scale appeals (down from a 2015 high of approximately 8,200), for a similarly high caseload of approximately 430 appeals per judge.  By way of comparison, the American Bar Association recommends that an appellate attorney litigate no more than 25 appeals per year.  The point of all this being that there simply aren't enough judges (or staff) to model perfect deliberative justice, or, as one former Superior Court judge has said, "It's an assembly line."  (Notably, Pennsylvania has approximately half of the number of intermediate appellate court judges as Illinois and Ohio, the two states closest in population.)  As a result, it would come as no surprise that judges and staff drinking from the proverbial firehose find themselves in something of a triage scenario, focusing their time and effort on matters that they view as most worthy, to the detriment of those they don't, and, like all workers in triage scenarios, taking easier paths to completing necessary tasks than they might otherwise with infinite time or resources, and, in some cases, even succumbing to burnout.  The Court is absolutely right that the Superior Court understands its purpose, and that it must justify itself to fulfill them, but, absent a significant funding increase, it is difficult to see how it can bridge the gap.

On the allocatur side, I am most interested in Freilich and Rouse.  I've written before that the hallmark of the Court in the last several years, and particularly after the retirement of Chief Justice Emeritus Saylor and the passing of the late Chief Justice Baer, has been openness to expansion of tort liability.  This is largely due to the fact that, although individual Justices have different opinions in different relevant areas of civil law, there always appear to be a coalition of at least four Justices willing to take the proverbial leap forward.   (A similar trend involving criminal procedural rights and the narrow interpretation of criminal statutes occurred briefly between 2016 and the retirement of Chief Justice Emeritus Saylor, but has since largely abated.)  In Freilich, the plaintiffs, represented by high-profile plaintiff's attorney (and Duquesne Law School's new namesake) Thomas Kline, are challenging a statutory cap on damages from state agencies as violative of state constitutional rights, but there are not particularly meaningful distinctions between that cap and other kinds of caps in pertinent part.  Thus, Freilich is about a lot more than it seems. and will likely be a monumental battle between the plaintiffs' and defense bar.  And, on a much smaller stage, in Rouse, the Court appears poised to, for the second time this year, adopt a new tort -- here, the infliction of emotional distress by improperly interfering with a plaintiff's family member's corpse.  

Precedential Opinions

In the Interest of: N.E.M., 8 - 9 EAP 2023 (Majority Opinion by Donohue, J.) (holding juveniles adjudicated delinquent and subjected to placement who seek specialized review pursuant to Pa.R.A.P. 1612 have a right to appellate review, but stopping short of holding that the Superior Court is obliged to issue written opinions in connection with such review)

• See also Concurring Opinion by Dougherty, J.

Commonwealth v. Lehman, 41 WAP 2022 (Majority Opinion by Brobson, J.) (holding that an offender at a drug treatment facility pursuant to a condition of his parole is an "inmate" subject to prosecution for possession of a controlled substance by an inmate)

• See also Concurring Opinion by Mundy, J.
• See also Dissenting Opinion by Wecht, J.

In Re: Trust B of Wells, 5 WAP 2023 (Majority Opinion by Wecht, J.) (providing a history and discussion of the requirements for judicial termination of trusts and holding that the lower courts properly rejected an attempt to terminate the subject trust because the burdens of its separate existence were not "unreasonably out of proportion" to its charitable benefits)

• See also Concurring and Dissenting Opinion by Mundy, J.

In the Int of: T.Q.B., 71 MAP 2023 (Majority Opinion by Mundy, J.) (holding that exposure of any portion of a female's breast below the top of the nipple constitutes nudity for purposes of a statute prohibiting the possession of sexually explicit images of a minor)

PSEA v. PSERB, 90 MAP 2022 (Majority Opinion by Wecht, J.) (holding the Pennsylvania State Education Association had standing to seek a declaratory judgment concerning the legality of a Public School Employees Retirement Board' resolution adopting an interpretation of a statute relating to public school teacher pensions)

Allocatur Grants

Commonwealth v. Williams, 337 EAL 2023 (granting review to consider the dismissal of charges against a police officer who allegedly falsified statements during an internal-affairs interview and tampered with an investigative file)

Tiano v. City of Phila., 287 EAL 2023 (granting review to review whether a self-insured government entity may subrogate Heart and Lung Act benefits in a non-motor vehicle case)

Commonwealth v. Murchison, 156 EAL 2023 (granting review to consider the standard of review and import of actual innocence jurisprudence on claims for post-conviction DNA testing of evidence in a criminal case)

Duncan v. Chartiers Nature Conservancy, 245 WAL 2023 (granting review to consider the appropriate framework for determining the possession of undeveloped woodland property)

Freilich v. SEPTA, 245 EAL 2023 (granting review to consider whether the $250,000 cap on state agencies' liability for damages violates plaintiffs' state constitutional rights to a jury trial and to remedies where it functions to cap recovery at an amount less than costs, fees, and insurance reimbursement claims, and, if so, whether it is severable from the statutory limited waiver of sovereign immunity)

Rouse v. Rosenberg, 145 WAL 2023 (granting review to consider whether to permit a plaintiff to recover where the defendant's interference with the plaintiff's family member's body intentionally or recklessly interfered with the body's cremation or interment)

Glover v. Junior, 10 EAL 2024 (granting review to consider the appropriate framework for the establishment of parental rights in the context of conception via assistive reproductive technology)

Interstate Gas Supply v. PUC, 292 MAL 2023 (granting review to consider several issues related to the Public Utility Commission's disparate treatment of electric power companies)