“The failure to raise a legal issue in the text of the opening brief generally constitutes a waiver of that claim”
How later courts described this case
- “The failure to raise a legal issue in the text of the opening brief generally constitutes a waiver of that claim”
Written by the judges who cited it.
The opinion
NEWMAN, Judge,
dissenting.
I respectfully dissent. In reversing the order of the Board, the majority applies the common law principle that an individual’s silence may constitute an admission. By so doing, the majority disregards our Supreme Court’s caveat that this rule should rarely be applied in civil proceedings.
In Levin v. Van Horn, 412 Pa. 322 , 194 A.2d 419 (1963), a husband and his wife brought separate negligence actions against a doctor and a nursing home. Before the initiation of suit, the husband had requested payment from the doctor for subsequent treatment undergone by his wife. Specifically, the husband called the doctor and accused him of negligently introducing a staphylococcus infection into his wife’s knees during the course of treatment. During the conversation, the doctor did not answer the husband’s accusations. At trial, the husband and his wife attempted to introduce the doctor’s silence to the husband’s statements as evidence of an admission of the doctor’s negligence. The trial court rejected the evidence.
On appeal, our Supreme Court affirmed the trial court’s refusal to admit the evidence. The Court expressly noted the difference in applying the rule in a criminal as opposed to a civil proceeding. The Court quoted with approval the following statement by our Superior Court:
On an accusation of negligence giving rise to a civil action, if one is restrained by fear or doubt as to his rights, or by the belief that his interests will be best promoted by his silence, then no inference of assent can be drawn from that silence. ‘Nothing can be more dangerous than this kind of evidence, it should ahvays be received with caution, and never ought to be, unless the evidence is of direct declarations of that kind, which naturally calls for contra *1151 diction...Moore v. Smith, 14 Serg. & R. 388, 393.
Levin, 412 Pa. at 328 , 194 A.2d at 421 quoting Smith v. American Stores Company, 156 Pa.Superior Ct. 375, 379, 40 A.2d 696, 698 (1944) (emphasis added).
In Burton v. Horn and Hardart Baking Company, 371 Pa. 60 , 88 A.2d 873 (1952), an elderly lady slipped while going down the steps of one of defendant’s restaurants. The elderly lady’s daughter confronted the restaurant’s manager who did not respond to the daughter’s accusations of fault. At trial, the plaintiff attempted to elicit testimony from her daughter indicating that the manager admitted liability in light of his silence to the daughter’s allegations. The trial court held that such evidence was inadmissible. Our Supreme Court agreed and stated:
Plaintiffs theory of admissibility must therefore depend upon an admission by an agent through silence. But, ‘The maxim ‘silence gives consent’ is not a precise rule of evidence. The general principle of relevancy tells us that the inference of assent may safely be made only when no other explanation is equally consistent with silence.’ In the instant case the manager’s silence may well have been motivated by a desire to avoid a dispute with this customer whose mother had just been injured. We therefore decide that such evidence was properly rejected.
Id., at 63-64 , 88 A.2d at 875 (footnote and citations omitted).
Professors Leonard Packel and Anne Bowen Poulin have appropriately summarized our Supreme Court’s holdings in Levin and Burton as follows:
The implied admissions rule is applicable in civil as well as criminal cases. But in civil cases, the courts are much more likely to rule that there ivas not an implied admission because there ivas a valid reason for silence other than assent.
Packel and Poulin, Pennsylvania Evidence, § 805.2 (1987) (emphasis added).
In the matter sub judice, the majority believes that under the facts of this case, Claimant had an obligation to deny that he was sleeping. Majority opinion at 1149. I strenuously disagree. It is reasonable to assume that Claimant’s silence to Employer’s question was for a valid reason other than assent. Namely, at the time that Claimant was questioned, Employer was investigating a robbery that allegedly occurred during Claimant’s shift. Thus, as our Supreme Court in Levin aptly stated, Claimant may have been restrained by fear or doubt as to his rights, or by the belief that his interests would be best promoted by his silence. Accordingly, I would hold that no inference of assent can be drawn from Claimant’s silence.