Larocca v. Workmen's Compensation Appeal Board

BYER, Judge,

concurring and dissenting.

I respectfully dissent from the majority’s conclusions that the decision of a single judge on a question of subject matter jurisdiction is binding on the court when it later considers the merits and that section 211 of our Internal Operating Procedures is valid. Because the existence of this invalid internal operating procedure resulted' in personnel of our court giving Ms. Larocca instructions which I believe were incorrect, I would hold that the untimeliness of the appeal was caused by a breakdown in the judicial process. Therefore, I would not dismiss the appeal for lack of jurisdiction even though I disagree with the majority’s conclusions. However, I concur with the majority’s decision to affirm on the merits.

LAW OF THE CASE AND REVIEW UNDER Pa.R.A.P. 123(e)

The majority incorrectly invokes the law of the case doctrine as a basis for sustaining our jurisdiction. Although I believe we have jurisdiction for the reasons discussed later in this opinion, I cannot agree with the majority’s decision to base jurisdiction, even in part, on the law of the case doctrine.

In Pennsylvania, the law of the case doctrine applies only with respect to appellate courts and provides that where an appellate court has considered and decided a question on appeal, it will not reconsider that decision in a subsequent appeal in the same case. See, e.g. Kuchinic v. McCrory, *208 422 Pa. 620 , 625 n. 7, 222 A.2d 897 , 900 n. 7 (1966); Delaware River Port Authority v. Pennsylvania Public Utility Commission, 408 Pa. 169, 173-77 , 182 A.2d 682, 684-85 (1962). 1

Until the majority’s decision today, no case ever has extended the law of the case doctrine to preclude an appellate court, in the course of considering the merits of an appeal, from reconsidering a prior order of a single judge on a question of subject matter jurisdiction. I think the majority is incorrect in so extending this doctrine.

To begin with, the law of the case doctrine has no application to the review either by a three-judge panel or by the court en banc of a decision by a single judge on a motion for relief under Pa.R.A.P. 123. Our Supreme Court has emphasized that an essential element of the law of the case doctrine is a prior appellate decision, followed by a subsequent appeal on another phase of the same case. Delaware River Port Authority at 174 , 182 A.2d at 684 . Here, we have only one appeal, and a prior decision of a single judge on a pre-argument or pre-submission application cannot be considered the law of the case in the same appeal. It simply is not a prior decision of an appellate court for this purpose.

In addition to being inconsistent with precedent describing the law of the case doctrine, the majority’s decision to apply the law of the case doctrine to this situation is contrary to Pa.R.A.P. 123(e). This rule provides, “[t]he action of a single judge may be reviewed by the court.” The existence of this rule plainly is inconsistent with any attempt to apply the law of the case doctrine to preclude subsequent review in the same appeal of a decision by a single judge.

*209 I also would hold that the law of the case doctrine cannot be applied to a question of subject matter jurisdiction. A question of subject matter jurisdiction involves the power of a court to decide the case. Subject matter jurisdiction cannot be supplied by waiver, agreement or procedural default. Subject matter jurisdiction must be determined at any phase of a case where it is called into question. Therefore, it defies logic to hold that subject matter jurisdiction may be supplied by the law of the case doctrine even where the prior decision upholding subject matter jurisdiction is erroneous.

Our Supreme Court has observed that the law of the case doctrine is not inflexible, is less preclusive than res judicata and merely serves to direct the discretion of the court. Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 394 , 100 A.2d 595, 598 (1953). If the law of the case doctrine is a weaker doctrine than res judicata, I cannot see how it can be extended to a decision involving subject matter jurisdiction.

I agree with the holding of the United States Court of Appeals for the District of Columbia Circuit in Potomac Passengers Association v. Chesapeake & Ohio Railway Co., 520 F.2d 91 (D.C.Cir.1975), that the law of the case doctrine has no application to questions of subject matter jurisdiction. “When an appellate court makes so fundamental an error as that of sustaining federal subject matter jurisdiction where none exists, we think the court must exercise its discretion to correct that mistake.” Id. at 95, n. 22 . The requirement of subject matter jurisdiction is not less fundamental in Pennsylvania appellate courts than in the federal courts. I would apply the same principle. 2

The majority opinion would circumvent both the absence of subject matter jurisdiction and the provision of Pa.R.A.P. *210 123(e) providing for review by the court of a decision of a single judge by creating a new “rule.” This new “rule” provides that a party seeking further review under Pa. R.A.P. 123(e) cannot request that further review in a brief on the merits, but must file a separate application for reconsideration. There is no justification for the creation of such a “rule” by this court.

As I observed in another recent case where this court purported to create a general rule of procedure, the Pennsylvania Constitution gives the Supreme Court of Pennsylvania the exclusive authority to promulgate general procedural rules. Gilmore v. Commonwealth, 139 Pa.Commonwealth Ct. 499, —, 590 A.2d 1369, 1372 (1991) (Byer, J., dissenting). We do not have any power to prescribe general rules of appellate procedure such as that created by the majority in this case.

The Pennsylvania Rules of Appellate Procedure contain no provision which requires a party to proceed by formal application for reconsideration in order to obtain further review under Pa.R.A.P. 123(e) where the ruling by the single judge requires that the case proceed to a review on the merits. Although such an application would be necessary where the effect of a single judge’s ruling is to preclude further review on the merits, such as an order either dismissing or remanding a case, appellee’s request in its brief that we reconsider the order of a single judge sustaining subject matter jurisdiction in this case is not inconsistent with any rule of appellate procedure promulgated by our Supreme Court.

Although appellee certainly could have filed a formal application for reconsideration, it was not required to do so. More importantly, although the Supreme Court could have *211 adopted a rule requiring such a formal application to invoke Pa.R.A.P. 123(e), the Supreme Court has chosen not to do so.

The majority opinion indicates that we have provided a mechanism for review of such applications in Section 331 of our Internal Operating Procedures. It is true that our I.O.P. § 331 provides the procedure to be followed by our staff where a party files an application seeking reconsideration of an order by a single judge. However, this internal regulation cannot be construed as requiring parties to file such applications in order to pursue their right to request further review under Pa.R.A.P. 123(e). Internal operating procedures regulate the internal operations of courts and are not in the nature of general procedural rules which must be followed by parties. We simply have no power to amend the Pennsylvania Rules of Appellate Procedure, by our Internal Operating Procedures or otherwise.

What is the problem with a party requesting review under Rule 123(e) by including the request in its brief on the merits? What would be added by requiring a party to make such a request on a separate piece of paper? The majority does not answer these questions. There simply is no reason why we should not entertain such a request in a brief, particularly where it relates to our power to decide the case.

The vice of our creating a procedural rule by case law, apart from our acting beyond our constitutional authority, is that it requires lawyers and litigants to engage in extensive case law research in order to discern basic procedural points, instead of being able merely to open a rule book and pick out the applicable rules. Gilmore 139 Pa.Commonwealth Ct. at —, 590 A.2d at 1372 (Byer, J., dissenting); see also McCarron v. Upper Gwynedd Township, 139 Pa.Commonwealth Ct. 528, —, 591 A.2d 1151, 1154 (1991) (Byer, J., concurring). The practice of law is tough enough without our requiring lawyers to perform extensive case law research on the simplest of procedural points. That is contrary to the modern notion that procedural requirements should be codified in published procedural rules.

*212 It certainly makes no sense to create such a requirement for rulings on subject matter jurisdiction. The effect of the majority’s decision on this point is to provide that, notwithstanding Pa.R.A.P. 123(e), an erroneous decision by a single judge sustaining subject matter jurisdiction where there is none binds even the court en banc and requires us to decide a case which we do not have the power to decide. Under the majority’s reasoning, one wonders whether the single judge’s decision could be reconsidered even on reargument after a decision on the merits. I respectfully suggest that the absurdity of such a result, and the fact that it renders Pa.R.A.P. 123(e) meaningless, demonstrates why the majority is incorrect. See 1 Pa.C.S. § 1922(1) & (2), as made applicable by Pa.R.A.P. 107.

It is a basic principle that subject matter jurisdiction may be raised at any time, even sua sponte. I see no reason why either a panel or the court en banc, when considering an appeal on the merits, cannot determine a question of subject matter jurisdiction regardless of whether it was raised before a single judge and regardless of whether a party expressly requested reconsideration of that decision. Therefore, I respectfully conclude that the majority’s decision on this point is incorrect.

VALIDITY OF I.O.P. § 211

The sustaining of section 211 of our Internal Operating Procedures is an example of what might, after Gilmore and this case, be viewed as our court’s trend to create by case law our own general rules of procedure where we find the rules promulgated by our Supreme Court wanting in some respect. I cannot subscribe to this.

The majority, in effect, has amended Pa.R.A.P. 1512(a)(1) in order to provide more than thirty days for the filing of a valid petition for review by a pro se litigant. This goes beyond any reasonable construction of Pa.R.A.P. 104.

I cannot accept the majority’s construction of Pa.R.A.P. 1503 as permitting a party to convert, by a process of *213 amendment, a document containing no statement of objections into a petition for review more than 30 days after entry of a reviewable order. Rule 1503 might permit amendment to include a statement of objections or cure any other jurisdictional defect concerning the content of the document within the 30-day limit for filing a petition for review, but not beyond that jurisdictional time limit.

The error of the majority’s construction of Rule 1503 is demonstrated by considering what would happen if a party would attempt to invoke our appellate jurisdiction by filing a document entitled “petition for review” but which contained no statement of objections. In such a case, we would dismiss the petition for review, and we would not permit amendment to include objections more than 30 days after entry of the reviewable order. See R. Darlington, et al, 1 Pennsylvania Appellate Practice § 1513.10 (1986). Yet, under the majority’s construction of Rule 1503 in this case, if the party called such a deficient paper a “notice of appeal” instead of “petition for review,” an amendment to include the required statement of objections would be permitted beyond the 30-day limit. I respectfully suggest that such a distinction does not make sense.

In addition, by acting outside our authority, the majority has created an untenable discrimination between parties initially represented by counsel and parties who appear, at least initially, without counsel. We tried once before, in a different context, to confer more favorable treatment on pro se litigants than on litigants represented by counsel, and the Supreme Court, quoting one of our own decisions, very pointedly instructed us:

It is, we believe, preferable to simply recognize, as the Commonwealth Court has previously done, that “any lay person choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.”

Vann v. Unemployment Compensation Board of Review, 508 Pa. 139, 148 , 494 A.2d 1081, 1086 (1985) (quoting from *214 Groch v. Unemployment Compensation Board of Review, 81 Pa.Commonwealth Ct. 26, 30, 472 A.2d 286, 288 (1984)).

I have no doubt that if a lawyer for a party did what Ms. Larocca did on her own here, we would have dismissed the case for lack of jurisdiction even though the initial letter evidenced an intention to invoke our appellate review process. Because our Supreme Court has held that pro se litigants must follow the same rules as parties represented by counsel, I see no basis for such a discrimination.

Of course, the Supreme Court could choose to grant a grace period to pro se litigants like that in our I.O.P. § 211. That is the Supreme Court’s prerogative under Article V, Section 10(c) of the Pennsylvania Constitution. It is not ours. Therefore, I would hold that section 211 of our Internal Operating Procedures is invalid.

BREAKDOWN IN JUDICIAL PROCESS

Even though I would invalidate our I.O.P. § 211, I would not dismiss Ms. Larocca’s appeal for lack of jurisdiction. That is because our chief clerk’s letter of January 5, 1990 told Ms. Larocca she could file a petition for review within thirty days and still preserve her original filing date, in accordance with our I.O.P. § 211. Although I consider I.O.P. § 211 to be invalid, Ms. Larocca had the right to rely upon the communication from our chief clerk under the circumstances.

We have recognized that where a person is unintentionally misled by erroneous instructions from an authorized court officer, this may be considered a sufficient breakdown in the judicial process to justify the allowance of an appeal, even though it is filed beyond the 30-day time limit. Department of Transportation v. Emery, 135 Pa.Commonwealth Ct. 274, 279-80, 580 A.2d 909, 912 (1990); Department of Transportation v. Rick, 75 Pa.Commonwealth Ct. 514, 516, 462 A.2d 902, 903 (1983); see Commonwealth Bank & Trust Co., N.A. v. Winterberger, 136 Pa.Commonwealth Ct. 216, 219-21, 582 A.2d 730, 732 (1990), appeal allowed, 527 Pa. 619 , 590 A.2d 759 (1991); West Greene School Dist. v. Commonwealth, Unemployment Compen *215 sation Board of Review, 112 Pa.Commonwealth Ct. 334, 337, 535 A.2d 697, 698-99 (1988); Layton v. Unemployment Compensation Board of Review, 156 Pa.Superior Ct. 225, 40 A.2d 125 (1944). I would apply that principle here and hold that the erroneous (in my opinion) advice our chief clerk sent Ms. Larocca in accordance with I.O.P. § 211 constitutes a breakdown in the judicial process. Therefore, I would not dismiss this appeal for lack of subject matter jurisdiction even though it is untimely.

Because I would not dismiss this appeal for lack of jurisdiction, and because I agree with the majority’s decision on the merits, I concur with the majority’s decision to affirm the order of the Workmen’s Compensation Appeal Board. However, for the reasons previously discussed, I respectfully dissent from the remainder of the majority’s decision.

McGINLEY, J., joins in this concurring and dissenting opinion.

. In Pennsylvania, trial courts are not governed by the law of the case doctrine. Instead, trial courts are governed by the closely related doctrine that, in the absence of new evidence, it is improper for one judge of a trial- court to overrule an interlocutory order entered by another judge of that court involving the same issue. See Farber v. Engle, 106 Pa.Commonwealth Ct. 173, 525 A.2d 864 (1987). The majority appears to treat this doctrine as being part of the law of the case doctrine.

. It is true that the United States Supreme Court has indicated, contrary to the specific result in Potomac Passengers Association , that the law of the case doctrine applies "to transfer decisions that implicate the transferee’s jurisdiction” in situations where a case is transferred from one Court , of Appeals to another. Christianson v. Colt Industries Operating Corp., 486 U.S. 800 , 816 n. 5, 108 S.Ct. 2166 , 2177 *210 n. 5, 100 L.Ed.2d 811 (1988). The decision in Christianson was necessary, in a unique situation, in order to avoid an endless loop of conflicting jurisdictional decisions by different courts of appeals transferring and re-transferring the same case. However, the Supreme Court also recognized that the law of the case doctrine would not preclude a court from revisiting a prior determination of subject matter jurisdiction even in a transfer situation where the prior decision was “clearly wrong." Id. at 817 , 108 S.Ct. at 2178 .