General – Page 6 – Duane Morris Appellate Review

April 12, 2017 by Andrew R. Sperl

What Makes a Pennsylvania Superior Court Decision Non-Precedential?

By Andrew Sperl and Erica Fruiterman

In Carlitz v. Guse, No. 1370 MDA 2015 (Pa. Super. Apr. 4, 2017) the Superior Court recently issued a 49-page unpublished opinion affirming the lower court’s grant of a new trial. The new trial was originally granted on the basis that the plaintiff was prejudiced by defense counsel’s introduction of a new theory of causation in violation of a pre-trial order precluding that theory.

In deciding the matter, the majority crafted a 49-page opinion, to which the dissenting judge responded with a 12-page dissent, examining whether the new trial was warranted in light of defense counsel’s conduct. The crux of the appeal was whether the “new” theory introduced at trial was within the fair scope of the expert’s first report. These issues – the scope of related theories of causation, the proper remedy when a trial court fails to explicitly rule on whether an initial theory of causation encompasses a later related theory, and when attorney conduct constitutes prejudicial error warranting a new trial – are all factual issues that required extensive analysis by the court.

Given the infrequency with which cases go to trial and the even fewer number of those cases that are challenged on an abuse of discretion basis, relatively few cases like this receive appellate review. However, the Superior Court’s Internal Operating Procedures prohibit citation to unpublished decisions like Carlitz, even for persuasive value. A proposed amendment to the Rules of Appellate Procedure may change that.

On January 7^th of this year, the Appellate Court Procedure Rules Committee sought comments on its proposal to amend Rule of Appellate Procedure 126. This amendment would create a uniform rule permitting citation to unpublished memorandum decisions of Pennsylvania’s appellate courts for their persuasive value. Currently, the Superior Court’s Internal Operating Procedures prohibit citation to that court’s unpublished opinions except in limited circumstances. 210 Pa. Code § 65.37. The Commonwealth Court permits citation to its unpublished opinions issued after January 15, 2008 “for [their] persuasive value, but not as binding precedent.” 210 Pa. Code § 69.414. The comments to the draft rule explain that only non-precedential decisions from the date the rule is adopted would be available for citation. The public comment window closed on February 9, 2017, and submission of the proposed amendment to the Supreme Court should soon follow.

In our common law system, judicial opinions are not just a byproduct of deciding an individual case. They also provide guidance to courts and litigants. In fact, it has even been argued that the Superior Court’s policy against allowing citation violates Article V, Section I of the Pennsylvania Constitution, which vests the Commonwealth’s judicial power in the courts (an argument the court rejected). See Schaaf v. Kaufman, 850 A.2d 655 (Pa. Super. 2004).

On the other hand, the Superior Court is one of the busiest in the nation, and its bar against citing unpublished opinions is motivated by, among other things, a concern that “[a]lthough the court give[s] every case the attention necessary to render a decision, [it] cannot draft each decision with as great of care. . . . [M]emorandum decisions are a useful, although admittedly not ideal, tool for deciding cases while maintaining control of our time and the development of the law.” Id. at 661.

The proposed rule change takes a reasonable approach by maintaining unpublished opinions as tools for the court to dispose of cases without precedential effect, while still allowing those decisions to be cited for their persuasive value. Allowing citation to unpublished opinions particularly makes sense where there is no restriction on litigants’ ability to cite other types of non-binding precedent (such as trial court cases from other jurisdictions), and where the court’s unpublished opinions are widely available online.

April 1, 2017April 1, 2017 by Robert M. Palumbos

Supreme Court to Review Limitations on Appellate Extensions

The U.S. Supreme Court has granted certiorari in a case that will provide much needed clarity about the ability of district courts to extend appeal deadlines. The case, Hamer v. Neighborhood Housing Services of Chicago (No. 16-658), involves the interplay between 28 U.S.C. § 2107(c) and Federal Rule of Appellate Procedure 4(a)(5)(C). The Court will hear the case during its October 2017 term.

Section 2107(c) provides that district courts may extend the deadline to appeal “upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal.” Rule 4(a)(5)(C), however, provides that no extension “may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.”

In Hamer, the Seventh Circuit held that the district court lacked authority to grant a 60-day extension of an appeal deadline in response to a motion that was timely filed under 28 U.S.C. § 2107(c). Relying on the Supreme Court’s decision in Bowles v. Russell, 551 U.S. 205 (2007), the Seventh Circuit held that “Rule 4(a)(5)(C) is the vehicle by which § 2107(c) is employed and it limits a district court’s authority to extend the notice of appeal filing deadline to no more than an additional 30 days.” Because the notice of appeal was filed after the 30-day limitation in Rule 4(a)(5)(C), the Seventh Circuit dismissed.

In reaching that conclusion, the Seventh Circuit sided with the Second, Fourth, and Tenth Circuits, which had split with the D.C. and Ninth Circuits on the issue. The Supreme Court’s decision in Hamer should resolve the split and provide the bench and bar with much needed certainty about deadlines to appeal.

October 2, 2015 by Luke P. McLoughlin

Government Abandons Prior Interpretation of 2006 Veterans Act in New Brief to the Supreme Court

In a brief filed with the Supreme Court on September 29, 2015 in the case Kingdomware Technologies, Inc. v. United States, 14-916, the government abandoned the restrictive interpretation of the 2006 Veterans Act that it pressed before the U.S. Court of Appeals for the Federal Circuit (background on the case may be found here). The 2006 Veterans Act requires that the VA prioritize competitive bidding by veteran-owned small businesses, but the VA has for years declined to follow that mandate to the full extent Congress required. In briefing before various courts, including the Supreme Court, the government had for several years (and as recently as May 1, 2015) contended that the VA was allowed to limit competitive bidding by veteran-owned small businesses for VA contracts, but the government has now – six weeks before oral argument before the Supreme Court – abandoned that position. Instead, the government now contends that VA “orders” that may be filled through the Federal Supply Schedule should be excluded from mandatory competitive bidding, while VA “contracts” should not. Continue reading “Government Abandons Prior Interpretation of 2006 Veterans Act in New Brief to the Supreme Court”

August 24, 2015 by Duane Morris

Duane Morris’ Robert L. Byer Named by Best Lawyers as “Lawyer of the Year” for 2016

Duane Morris is pleased to announce that partner Robert L. Byer has been selected as the “Lawyer of the Year” in Pittsburgh Appellate Practice, an honor he previously received in 2011. Only one lawyer in each practice area and city is given this honor. Lawyers are selected based on high marks received during peer-review assessments conducted by Best Lawyers each year.

Mr. Byer is head of the Appellate division of Duane Morris’ Trial Practice Group. His appellate work and legal-issues litigation experience covers a wide variety of legal areas, including corporate governance, intellectual property, administration law, tax cases, Constitutional law, insurance coverage, contracts, professional liability, products liability and toxic torts.

August 5, 2015 by Duane Morris

Duane Morris Partner Paul Killion Appointed Chair of California State Bar’s Committee on Appellate Courts

Duane Morris partner Paul J. Killion of the firm’s San Francisco office has recently been appointed chair of the California State Bar’s Committee on Appellate Courts for the term commencing at the close of the 2015 State Bar Annual Meeting on October 11, 2015.

Killion is a Certified Appellate Specialist and practices in the area of complex civil litigation. He has argued or briefed over 100 appellate matters, including appeals, writs, petitions for review, merits briefing and amicus curiae briefing. He has handled a variety of litigation and appeals, including significant national experience in asbestos, pollution, toxic tort insurance coverage litigation and large personal injury claims. He has a broad range of appellate experience, with a particular focus on appeals from complex jury trials. Killion has appeared before all Districts of the California Courts of Appeal and before the California Supreme Court, as well as the Ninth and Tenth Circuits and the Supreme Courts of Washington and Oregon. He also represents clients as amici counsel in the California Supreme Court and Courts of Appeal.

June 24, 2015June 24, 2015 by Duane Morris

Pennsylvania Powerhouse Duane Morris Recognized by Law360

This year, Law360 recognized Duane Morris as a Pennsylvania Powerhouse. Leaders from the firm suggested that the high court’s reliance on the 111-year-old firm during the high-profile scandal was a testament to the firm’s status as a major player in a state well-known for a deep bench of legal talent. Duane Morris’ appellate practice and its chair, Robert L. Byer were a focus of this article on the firm as a Pennsylvania Powerhouse.

To read the full text of the article, please visit the Duane Morris website.

June 23, 2015June 24, 2015 by Duane Morris

Duane Morris Partner Robert M. Palumbos Appointed to the Pennsylvania Supreme Court’s Appellate Court Procedural Rules Committee

Duane Morris LLP is pleased to announce that Robert M. Palumbos, a partner in the firm’s Philadelphia office, has been appointed to serve on the Pennsylvania Supreme Court’s Appellate Court Procedural Rules Committee. Palumbos’ three-year term will commence on July 15, 2015. The committee’s principal function is to make recommendations to the state Supreme Court for refining and updating the rules of appellate procedure in light of experience, developing case law and new legislation.

To read the full text, please visit the Duane Morris website.

June 22, 2015 by Luke P. McLoughlin

Supreme Court Grants Certiorari In Case Involving Competitive Bidding by Veteran-Owned Small Businesses

Today the Supreme Court granted certiorari in Kingdomware Technologies, Inc. v. United States (14-916), a case involving competitive bidding by veteran-owned small businesses and service-disabled veteran-owned small businesses.

Kingdomware seeks reversal of a 2-1 decision by the United States Court of Appeals for the Federal Circuit that limits the opportunities for veteran-owned small businesses to competitively bid for contracts with the Department of Veterans Affairs (“VA”). Duane Morris LLP filed an amicus brief on behalf of a coalition of veteran-owned small businesses in support of Kingdomware. The American Legion also filed an amicus brief in support of Kingdomware. Continue reading “Supreme Court Grants Certiorari In Case Involving Competitive Bidding by Veteran-Owned Small Businesses”

May 11, 2015 by Duane Morris

Duane Morris Attorney Thomas Newman Co-Authors “Urging a Change in the Law: When to Set Aside Precedent?”

Duane Morris of counsel Thomas R. Newman co-authored an article that was recently published in the New York Law Journal. “Urging a Change in the Law: When to Set Aside Precedent?” explores the common law doctrine of stare decisis, which provides that once a court has decided a legal issue, subsequent cases presenting similar facts should be decided in conformity with the earlier decision. But the doctrine is not an inflexible rule. Judicial decisions simply determine the rights of the parties to an action that is before the court at a particular time in history. They are not, and are not meant to be, immutable laws governing the conduct of mankind and designed for the ages, such as the Ten Commandments. Rather, opinions “must be read in the setting of the particular cases and as the product of preoccupation with their special facts.” The “precedential value of a judicial opinion is limited to the question presented by the facts of the case before the court.”

To read the article in its entirety, please visit: http://www.duanemorris.com/articles/urging_a_change_in_the_law_when_to_set_aside_precedent_5578.html.

May 7, 2015 by Paul J. Killion

Two Important Insurance Matters Set For The California Supreme Court’s May Calendar

Yesterday, the California Supreme Court set two important and much anticipated insurance cases for May oral argument.

On May 26, 2015, the Court will hear argument in Fluor v. S.C. (Hartford Accident & Indemnity Company), No. S205889, which presents the following issue: Are the limitations on assignment of third party liability insurance policy benefits recognized in Henkel Corp. v. Hartford Accident & Indemnity Co. (2003) 29 Cal.4th 934 inconsistent with the provisions of Insurance Code section 520?

On May 28, 2015, the Court will hear argument in J.R. Marketing, L.L.C. v. Hartford Casualty Insurance, No. S211645, which presents a rare opportunity for guidance from the Supreme Court on independent Cumis counsel issues. The case present the following question: After an insured has secured a judgment requiring an insurer to provide independent counsel to the insured (see San Diego Fed. Credit Union v. Cumis Ins. Society Inc. (1984) 162 Cal.App.3d 358), can the insurer seek reimbursement of defense fees and costs it considers unreasonable and unnecessary by pursuing a reimbursement action against independent counsel or can the insurer seek reimbursement only from its insured?

Both matters will be heard in San Francisco on the 9:00 a.m. calendars. Under California rules, the Supreme Court must issue its decisions in the matters within 90 days after the argument.