Pennsylvania Power & Light Co. v. Maritime Management, Inc.

OLSZEWSKI, Judge,

concurring.

I agree wholeheartedly with the well-reasoned majority opinion and join without reservation in both its analysis and holding.

I feel it necessary, however, to write separately in order to address the very premise upon which the dissent bases its rationale. Before delving into an exhausting and lengthy, albeit informative, history of the importance of the Wallenpaupack River to our Pennsylvania ancestors, the dissent acknowledges that not one iota of the evidence upon which it relies is of record.

Undeterred, the dissent claims that its sua sponte historical undertaking is permissible because “[a] court sitting in equity may consult historical books of authority though not introduced into evidence, or may admit such works to aid it in the exercise of judicial functions.” Dissenting opinion at 597 (citing Baird v. Rice, 63 Pa. 489 (1871), and In re Siemens’ Estate, 346 Pa. 610, 613 , 81 A.2d 280, 282 (1943) (citations omitted)).

While this may be an accurate statement of the law with respect to trial courts sitting in equity, the same is not true with respect to appellate courts. Indeed, a close reading of the authorities cited by the dissent reveals that the Baird and In re Siemens’ Estate decisions do not support this proposition.

A careful analysis of the procedural history in Baird reveals that, in an unusual twist, our Supreme Court was not sitting as an appellate court when it consulted histoiical treatises to aid its decision making. A preliminary injunction hearing was held on December 3, 1870, after which a temporary injunction was granted prohibiting construction of Philadelphia’s City Hall. The hearing was continued for one month before deciding whether the injunction would be made permanent. On January 4, 1871, the hearing was continued before our Supreme Court, sitting as assessors. 1 The Court considered a multitude of evidence, including old maps and books, before determining that the preliminary injunction was improvidently granted and should not be made permanent.

Baird , therefore, merely stands for the proposition that an appellate court sitting as a trial court may consult historical writings. There is no support for extending this rationale further to permit appellate courts sitting *607 in their traditional fashion to act in a like manner. 2

Likewise, In re Siemens’ Estate cannot support the dissent’s position. The passage relied upon from In re Siemens’ Estate is, in actuality, a quote from the trial court’s opinion in which the court sought to explain why it took judicial notice of the fact that a testator’s gift to the “Penna. S.P.C.A.” designated the Pennsylvania Society for the Prevention of Cruelty to Animals. In re Siemens’ Estate, 346 Pa. at 613 , 31 A.2d at 282 (“a court may inform itself from books of authority though not introduced into evidence, or may admit such works to aid it in the exercise of judicial functions”).

That the present case differs diametrically from both Baird and In re Siemens’ Estate should be readily apparent, and their holdings should not be contorted and offered as precedent to permit or condone the unnecessary and unwarranted analysis that comprises the dissenting opinion.

Should the dissent actually want to follow precedent, it would do better to inform itself of the plethora of caselaw in our Commonwealth which holds that evidence not of record cannot be considered by appellate courts. See, e.g., Pa.R.A.P.1921; Commonwealth v. Bracalielly, 540 Pa. 460, 475-76 , 658 A.2d 755, 768 (1995); Commonwealth v. Baker, 531 Pa. 541, 558-60 , 614 A.2d 663, 672 (1992); Tukovits v. Prudential Ins. Co. of America, 448 Pa.Super. 540, 544-46, 672 A.2d 786, 788 (1996); Commonwealth v. Dunkel, 443 Pa.Super. 66, 69-70 , 660 A.2d 1347, 1349-50 (1995); Eadie v. Bohatch, 411 Pa.Super. 304, 306-08 , 601 A.2d 361, 362 (1992); Murphy v. Murphy, 410 Pa.Super. 146, 155-57 , 599 A.2d 647, 652 (1991).

While we may have the resources to do so, it is not and should not be the function of this Court to act as counsel for the litigants. Indeed, such behavior runs contrary to the steadfast notion that our courts are neutral arbiters and not partial litigants with natural predilections to present evidence biased in their favor.

Thus, regardless of the accuracy of the protracted narration offered by the dissent relative to our ancestors’ reliance upon the Wallenpaupack River in days of yore, this Court is bound to consider only that evidence which the parties below found relevant to their cause and properly introduced into the record.

. An assessor is defined as "[a]n officer chosen or appointed to appraise, value, or assess property. A person learned in some particular science or industiy, who sits with the judge on the trial of a cause requiring such special knowledge and gives his advice.” Black’s Law Dictionary, 6th Ed. (1990).

. Moreover, even if the dissent was correct that our Supreme Court in Baird , sitting as an appellate court, did consult historical materials outside the record to aid its decision making, I would hold that this precedent has been implicitly overruled. In the intervening 126 years since the Baird decision, both this Court and our Supreme Court have held that appellate review is limited to a consideration of evidence properly introduced into the record. With this in mind, I would be wary' of compounding an error made by our high Court so many years ago.