Last week, the Pennsylvania Superior Court released a new precedential opinion in a rollover case, Parr v. Ford Motor Company, 2014 PA Super 8. Initially, I was going to write about the merits of the decision itself, but when I went to look for which judges had voted for which side, I saw something disturbing: of the three judges on the panel, one had to retire before the decision was issued, and the remaining two judges disagreed on three dispositive issues. Thus, the ‘majority’ opinion — which may or may not be the law of the law in Pennsylvania now — is actually just one side of a split two-judge panel. There’s no meaningful difference between the ‘majority’ and ‘dissent’ opinion (neither commanded a majority), yet one of them has been designated a precedential opinion of the Superior Court. The circumstances underlying this “precedential” case raise questions about how practitioners and judges should treat it.


By way of background (Pennsylvania practitioners can skip this paragraph and the next three after it), when civil cases are appealed in Pennsylvania, they are first sent to the Superior Court. (Except for cases involving the Commonwealth, which go to the Commonwealth Court.) There are thirteen Superior Court Judges and four Senior Judges, but they hear and decide cases as three-judge panels. The three judges hearing the case take a vote, the majority wins, then one of the judges in the majority writes the opinion for “the Court.” If there is a dissent, they write an opinion about what they would have done instead.


A party that has lost in front of a three-judge panel has two options: they can ask the whole Superior Court to hear the case en banc, or they can ask the Pennsylvania Supreme Court to hear it. Parties don’t have a right to either, and both are rare. Typically, a three-judge Superior Court decision is the end of the road for civil litigants.


That three-judge majority opinion is, by default, “non-precedential,” sometimes also called “unpublished” or “memorandum.” Leaving the decision “unpublished” is a statement by the Superior Court that it does not want future trial courts (or future Superior Court panels) to put too much weight into their opinion, because it was written for the parties in the case, and was not written with an eye towards guiding the law in future cases. We could have a long academic discussion about the wisdom of allowing “non-precedential” decisions in the first place (see this article for more), but, regardless, the designation has a significant practical impact in Pennsylvania: lawyers typically cannot cite to “non-precedential” in support of opinions their arguments. See Superior Court Rule 65.37 (“An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding…). Even if party cites it, courts tend to ignore “non-precedential” opinions, because they know the court wrote that opinion did not feel strong enough to mark it “published.”


In contrast, “published” opinions by the Superior Court, even if just by a three-judge panel, become the law of the land in Pennsylvania. “Publication” is a statement by the Superior Court that trial courts are supposed to follow the decision from now on, and that future Superior Court panels are supposed to treat it as stare decisis. An “unpublished” decision is not much of a big deal, because it affects only the parties. A “published” decision, however, makes new law.


Now, let’s talk about Parr v. Ford. Without getting too deep into the details, the Parr family was in an accident in their 2001 Ford Excursion, which rolled over and crushed on top of them, and two of the Parr children were seriously injured. The plaintiffs sued Ford, alleging the 2001 Excursion was defectively designed. When the case went to trial, the trial court made several evidentiary ruling in favor of Ford and against the plaintiffs, and the jury sided with Ford. The plaintiffs appealed, arguing that the trial court was wrong on four main issues, and that each one of those issues should warrant a new trial.


With all that background out of the way, let us talk about the problem. The appeal was assigned to a three-judge panel. Before the decision was reached, however, one of the judges retired. (I’m assuming he ran into the mandatory retirement age of 70; a bump up to 75 is in the works, but it requires amending the Pennsylvania Constitution.) That left just two judges deciding the case.


That is not necessarily a problem, and the Pennsylvania Rules of Appellate Procedure have provisions to deal with a judge leaving a panel:


If, after oral argument on a case, a judge becomes unable to participate in the disposition of a particular case, the case may be decided by the two remaining judges if they agree on the entire disposition of the case. If the two remaining judges are unable to agree on the entire disposition of the case, the panel shall proceed in accordance with I.O.P. 65.5F.


Sounds fair enough: if two judges were voting the same way anyway, then it does not matter if the third judge leaves in the middle of the process, as the case is decided the same way. But what if they don’t agree? The rules cover that as well (this is the “I.O.P. 65.5F” referenced above):


If, following argument or submission, a member of the three judge panel assigned to decide an appeal becomes unavailable, and the remaining two judges are unable to decide the appeal, they shall request the President Judge or his/her designee to either reassign the appeal for reargument or submission before another panel, or they may request that the appeal be reargued before a court en banc. If the full court shall decline to accept the appeal for reargument before a court en banc, the President Judge or his/her designee shall reassign the same to another three judge panel for reargument or submission and decision.


And here we reach the problem with Parr v. Ford: The two remaining judges were not able to decide the appeal. They agreed on the first issue, then disagreed on the remaining three issues. Thus, under the rules, they can either request a whole court to hear the case en banc, or, if they do not request that or the whole court denies the request, then they “shall” request the President Judge to reassign the case before another panel, and the President Judge “shall” do that.


For whatever reason, that reassignment didn’t happen. Instead, the case was first decided (with an unpublished opinion) on December 24, 2013. This was bizarre enough, given that the two remaining judges on the case disagreed about the disposition. I suppose, in theory, the decision could be treated as a de facto affirmance, as is the case if the Superior Court as a whole or the Supreme Court is evenly divided on an issue. See, e.g., Mineo v. Tancini, 517 Pa. 335, 339 (1988) (where Supreme Court is equally divided, result is affirmance of order appealed from). But that doesn’t make any sense: unlike with the Superior Court en banc or the Supreme Court, where there’s no other option but to simply call it a “tie,” there’s no reason to treat a two-judge split panel decision as affirmance. The Superior Court just needs to assign another judge and decide it properly.


But then an even more inexplicable set of events occurred:

  • on January 6, the plaintiffs requested reargument (presumably with another judge added)

  • on January 8, Ford requested the decision be “published” (because it is a good decision for them to use in the future)

  • on January 10, the Superior Court ordered the decision be “published”

  • on January 13, the Superior Court denied the request for reargument


Thus, we’re left with the bizarre circumstance of two separate “published” decisions, each written by a single judge, each diametrically opposed to the other.


I do not envy the next trial judge who encounters these issues, who has to decide what to do when the plaintiff’s lawyer is waving around the so-called “dissent” while the defendant’s lawyer is waving around the published decision. One of them is signed by the Prothonotary as the official order, but it remains the opinion of a single judge on a split two-judge panel. It’s not the law.