November 14, 2018

If you lose your appeal in the Superior Court or the Commonwealth Court, you have no right to take a further appeal to the Pennsylvania Supreme Court; rather, you must convince the Supreme Court to allow discretionary  review through the filing of an “allocatur” petition. Obtaining the court’s review is challenging – according to the court’s internal statistics, over 95% of allocatur petitions were denied last year.

In general, the Supreme Court is interested in issues, not correcting errors made by lower courts, so even if allocatur is granted,  the victory may be bittersweet, as  allocatur grants are limited to particular issues, and often to fewer issues than requested.. While litigants are expected to limit briefing and argument to the issues as to which review was granted, “decisional aspects downplayed or overlooked by an appellant” may constrain the court’s ability to reverse the decision, even though the court may affirm for any reason appearing of record. Alderwoods (Pennsylvania), Inc. v. Duquesne Light Co., 106 A.3d 27, 41 (Pa. 2014).  Faced with this tension, parties wary of waiver or the court affirming on an unaddressed basis may be tempted to advance arguments on issues outside of the Supreme Court’s grant of review. How far can a litigant push the boundaries of the court’s allocatur grant by advancing extraneous issues? That’s the question currently facing the Supreme Court following the October 23, 2018 oral argument in Mitchell v. ShikoraThere, in a post-argument submission,  Appellee Mitchell (the plaintiff to whom the Superior Court granted a new trial) seeks to have the court disregard Appellant Shikora’s briefing and oral argument on an issue Mitchell alleges goes beyond the scope of the court’s limited allocatur grant.  Mitchell v. Shikora is a medical malpractice case involving Shikora’s alleged negligence during Mitchell’s hysterectomy operation.  The Superior Court granted Mitchell’s appeal, reversed the defense verdict, and  remanded for a new trial based on its determination that the trial court improperly admitted risk and complication evidence.  While Shikora’s allocatur petition sought review of  three issues, including the policy implications of the strict liability standard imposed, the Supreme Court limited its grant of allocatur to one issue: “Whether the Superior Court’s holding directly conflicts with this Honorable Court’s holdings in Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), which permits evidence of general risks and complications in a medical negligence claim?”

Mitchell is now arguing that  despite the court “expressly rejecting” review of the strict liability issue, Shikora and amici supporting Shikora addressed it in briefs and at oral argument.

In resolving Mitchell’s post submission claims and deciding whether to ignore the strict liability argument as to which allocatur never was granted, the court will not write on a blank slate. Just last year, in Dubose v. Quinlan, 173 A.3d 634 (Pa. 2017), the Supreme Court declined to consider arguments related to JNOV, which it found were “outside the scope of the grant of allowance of appeal, which was limited to whether ‘the Superior Court improperly lengthened, potentially significantly, the statute of limitations applicable to survival actions in medical professional liability claims[.]’”  In another 2017 case,  the court likewise held that the impact and interpretation of a new statute that addressed the subject matter of the case was not encompassed within the court’s allocatur grant, and, “therefore, is not part of this case.” Hanaway v. Parkesburg Grp., LP, 168 A.3d 146, 148 (Pa. 2017).  The court’s limitation of issues to those addressed in its allocatur grant applies not only to the parties, but extends to the court itself. In Commonwealth v. Maconeghy, the majority criticized reasoning advanced in a dissent authored by Justice Mundy, opining that “Justice Mundy’s approach of addressing an issue which was expressly rejected at the allocatur stage is inconsistent with the many decisions in which this Court has disciplined itself to adhere to the questions selected for discretionary review” and that the “contrary approach of pursuing unaccepted side issues obviously impedes the Court’s ability to address the matters of substantial public importance that are selected for review.” 171 A.3d 707, 711, n.3 (Pa. 2017).

Returning to the pending submission in Mitchell v. Shikora with these principles in mind, a question remains: if Shikora’s advocacy did in fact exceed the scope of the court’s grant of allocatur, what is Mitchell’s remedy? Mitchell argues that the court should either (1) permit her to seek dismissal of the appeal as improvidently granted or (2) clarify what other questions are being considered and allow for additional briefing and argument. While the court’s decision in Mitchell will be inspired by the particular circumstances of that case, precedent suggests that the likely penalty for an overzealous party whose advocacy exceeds the scope of allocatur is the court’s annoyed refusal to consider the extraneous arguments – an unwelcome but comparatively better fate than waiver.

For additional context and commentary, see West’s Pennsylvania Appellate Practice (2018-2019) § 1121:3.

About the Author:

Melissa Chapaska, attorney at Hawke, McKeon & Sniscak, LLP, represents clients in regulatory matters before state agencies and courts.  Her practice focuses primarily on administrative agency applications and appeals, and transactional drafting.  Prior to joining the firm, Melissa interned with the United States Department of Justice and Pennsylvania Department of Labor & Industry.