Opposition Brief — Canoe Manufacturing Manufacturing Manufacturing Co., Inc. v. Jones (No. 06-1059)

No. 06-1059

IN THE

Supreme Court of the United States

CANOE MANUFACTURING COMPANY, INC.

and M. ROBERT ULLMAN,

Petitioners,

v.

JOSEPH H. JONES, Esquire and

WILLIAMSON, FRIEDBERG & JONES,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF PENNSYLVANIA

BRIEF IN OPPOSITION

JOHN J. HARE ALAN E. JOHNSON

MARSHALL, DENNEHEY, WARNER, Counsel of Record

COLEMAN & GOGGIN MARSHALL, DENNEHEY, WARNER,

1845 Walnut Street COLEMAN & GOGGIN

Philadelphia, PA 19103 600 Grant Street, Suite 2900

(215) 575-2609 Pittsburgh, PA 15219

(412) 803-1140

Counsel for Respondents

206822 c

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

Respondents object to the Petitioners’ Question Presented

on the ground that it assumes certain jurisdictional, procedural,

legal, and factual premises that are demonstrably unfounded,

as established more fully in the body of the present brief in

opposition.

Respondents suggest instead the following Questions

Presented:

1. Whether 28 U.S.C. § 1254 is an appropriate

jurisdictional basis for Supreme Court review of a state court

decision by writ of certiorari.

2. Whether a petition for a writ of certiorari requesting

Fourteenth Amendment due process and equal protection review

of a state court judgment should be denied where neither the

Petitioners nor the state courts invoked or discussed the

Fourteenth Amendment Due Process and Equal Protection

Clauses in the state court proceedings.

3. Whether the Supreme Court may utilize GVR

procedures by granting a petition for a writ of certiorari seeking

Fourteenth Amendment due process and equal protection review

of a state court decision, vacating the state court decision, and

remanding to the state court for further consideration by the

state court, where neither the Petitioners nor the state courts

invoked or discussed the Fourteenth Amendment Due Process

and Equal Protection Clauses in the state court proceedings.

4. Whether a federal question is presented under the

Fourteenth Amendment Due Process and/or Equal Protection

Clauses where Petitioners’ failure to meet state court appellate

filing deadlines was a result of their disregard of preexisting

and controlling state court appellate precedent.

li

CORPORATE DISCLOSURE STATEMENT

Respondent Williamson, Friedberg & Jones is a law firm

that has never had a parent corporation. No publicly held

company has ever held any stock in Williamson, Friedberg

& Jones.

lil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........ccceccees i

CORPORATE DISCLOSURE STATEMENT ..... il

pe A gs gk i, rrr ere iii

TABLE OF CITED AUTHORITIES ............ Vv

Pe EES us ce eke tbe eee eee l

STATEMENT OF THE CASE. .. oc cccevcceccees l

REASONS FOR DENYING THE PETITION ..... 8

I. Supreme Court Jurisdiction Cannot Be

Predicated Upon 28 U.S.C. § 1254 Where The

Petitioners Seek Review Of A State Court

a re ee es ae 8

If. The Writ Should Be Denied, Because Neither

The Petitioners Nor The State Courts Invoked

Or Discussed The Fourteenth Amendment

Due Process And Equal Protection Clauses

In The State Court Proceedings. .......... 9

Ill. The Court Should Not Utilize GVR Procedures

Where Neither The Petitioners Nor The State

Courts Invoked Or Discussed The Fourteenth

Amendment Due Process And Equal Protection

Clauses In The State Court Proceedings. ... 11

iv

Contents

Page

IV. No Federal Question Is Presented Under The

Fourteenth Amendment Due Process And/Or

Equal Protection Clauses Where Petitioners’

Failure To Meet State Court Appellate

Deadlines Was A Result Of Their Disregard

Of Preexisting And Controlling State Court

Appellate Precedem. .......0ccsccccccee 14

oe). a aS Re ee 20

TABLE OF CITED AUTHORITIES

Page

CASES

Adams v. Roberison, 520 U.S. 83 (1997) ......... 10

Crowell v. Randell, 35 U.S. 368, 10 Pet. 368 (1836)

PP OE a mS eye Pa URE een T unre 10

Feidler v. Morris Coupling Co., 2001 Pa. Super. 294,

Fee ee CRE ss vv hrekeeridse i henteus 17-18

Frazier v. City of Philadelphia, 557 Pa. 618, 735

Pe ES er ere yee errr ee 16, 17

Gartland v. Rosenthal, 2004 Pa. Super. 134, 850 A.2d

ee lana hee ee ed es ee re 17

Hepler v. Urban, 518 Pa. 482, 544 A.2d 922 (1988)

PRP tic tsaeecasw ase rae a heeea wens 18

Hepler v. Urban, 530 Pa. 375, 609 A.2d 152 (1992)

Pe oti yuy sees aude e kee awe be ooo 18

Howell v. Mississippi, 543 U.S. 440 (2005) ...... 10, 11

Illinois v. Gates, 462 U.S. 213 (1983) ........... 10

Lawrence v. Chater, 516 U.S. 163 (1996) ....... tds 13

Lords Landing Village Condominium Council v.

Continental Insurance Co., 520 U.S. 893 (1997)

vi

Cited Authorities

Page

Owings v. Norwood’s Lessee, 9 U.S. 344, 5 Cranch

a ade SO ay ey ere ne a 10

Progressive Home Fed. Sav. & Loan Ass'n v. Kocak,

359 Pa. Super. 120, 518 A.2d 808 (1986) ...... 17

Youngblood v. West Virginia, U.S. _, 1268. Ct.

SA Od eee ie gee Wid ah ene: 8 13

UNITED STATES CONSTITUTION

Fourteenth Amendment ..........0cseccceees passim

UNITED STATES CODE

Ps BEBPT oo ccerevecvccvvdeccccvavescls ip ®

EEE ccnwawanyuyesedeees 6004s 1,8, 9, 10

SUPREME COURT RULES

Supreme Court Rule 14.1(g)(1) ................. 1, 11

PENNSYLVANIA RULES OF CIVIL PROCEDURE

4 he FD Se ere rer ee passim

OTHER AUTHORITY

Shaun P. Martin, Gaming the GVR, 36 Ariz. St. L.J.

re Se, SEE, ca web oreo ae eeencsseeses 12

l

JURISDICTION

Petitioners assert that the Supreme Court is vested with

jurisdiction pursuant to 28 U.S.C. § 1254. However,

28 U.S.C. § 1254 applies only to petitions for certiorari

seeking review of decisions from United States Courts of

Appeals. The correct basis for jurisdiction for a petition for

a writ of certiorari seeking review of a state court decision

would be 28 U.S.C. § 1257(a). However, as established

below, Petitioners have not met-the jurisdictional

requirements of 28 U.S.C. § 1257(a) or, alternatively, have

not complied with the Court’s prudential requirements

associated with 28 U.S.C. § 1257(a).

STATEMENT OF THE CASE

Petitioners seek review, by writ of certiorari, from a state

court judgment. However, the petition fails to comply with

Supreme Court Rule 14.1(g)(i), which requires Petitioners

to include in their Statement of the Case a “specification of

the stage in the proceedings .. . when the federal questions

sought to be reviewed were raised; the method or manner of

raising them and the way in which they were passed on by

those courts” as well as “pertinent quotations of specific

portions of the record or summary thereof, with specific

reference to the places in the record where the matter appears

... SO aS to show that the federal question was timely and

properly raised and that this Court has jurisdiction... .” As

discussed more fully below, Petitioners cannot meet this

requirement, because they never invoked the United States

Constitution in the state court proceedings and no state court

addressed federal constitutional issues.

2

On page 3 of the petition, Petitioners assert that their

appeal to the Pennsylvania Superior Court was “summarily

dismissed by the Deputy Prothonotary of the Superior

Court. . . .” Similarly, on page 11, Petitioners state that “[o]n

April 12, 2006, the Superior Court Deputy Prothonotary

entered a Per Curiam Order quashing the appeal. App. 77a.”

Petitioners appear to suggest that it was the Deputy

Prothonotary, as distinguished from the Superior Court

judges, who quashed the appeal. However, the Order itself

states: “The court hereby GRANTS the motion to quash.”

Pet. App. 77a (emphasis added). The Order is not signed by

an individual judge or judges but is rather stated to be “PER

CURIAM”. /d. Significantly, the Deputy Prothonotary did

not sign the Order but merely performed the administrative

and ministerial act of filing it. Accordingly, no basis exists

for Petitioners’ suggestion that the Deputy Prothonotary ruled

on the Motion to Quash.

The remainder of statements on page 3 (“Introduction”)

of Petitioners’ Statement of the Case are rhetorical and

conclusory in nature and, as demonstrated below, are refuted

by the actual procedural facts of this case..

Pages 4-6 of Petitioners’ Statement of the Case set forth

Petitioners’ version of factual and procedural events that

occurred over a period of two decades. These matters are

not relevant to any question that would be before the Supreme

Court and, indeed, they have nothing to do with even the

Petitioners’ own formulation of the Question Presented.

Rather, these issues were the subject of discovery and motion

practice in the Pennsylvania state courts under Pennsylvania

law long before the present procedural issue arose. Although

it is accordingly not necessary to address these matters in

the present brief, it should be observed that Respondents do

3

not agree with Petitioners’ version of these factual,

procedural, and Pennsylvania law matters. To take just one

example, Petitioners suggest, on page 6, that the decision in

the first state court appeal was the unanimous decision of a

three-judge Superior Court panel consisting of Judges Klein,

Bender, and Olszewski. However, contrary to Petitioners’

representation, Judge Bender dissented from the majority’s

decision and opinion.

Petitioners’ discussion of procedural facts relevant to

their petition begins on page 7 of their Statement of the Case.

The Court of Common Pleas of Schuylkill County,

Pennsylvania (sometimes referred to hereinafter as “Court

of Common Pleas”) granted summary judgment in favor of

Respondents on December 30, 2005. Pet. App. 10a, 12a-19a.

The Court of Common Pleas docket contains two entries

for December 30, 2005. One entry states: “ORDER-

GRANTED”. The other entry for December 30, 2005 states:

“OPINION AND ORDER OF COURT-COPIES MAILED”.

Pet. App. 10a. (Note: Although page 10a of Petitioners’

Appendix incorrectly states the filing date of the latter entry

as “12/20/2005”, the original docket stated “12/30/2005”.

This is not disputed, as Petitioners state on page 7 of their

petition that the latter docket entry was dated December 30,

2005.)

A Schuylkill County Court of Common Pleas docket

entry reflects that a “PRAECIPE FOR ENTRY OF

JUDGMENT” was filed on January 9, 2006. Pet. App. 10a.

The reproduction of the Court of Common Pleas docket on

page 10a of Petitioners’ Appendix is, however, incomplete,

because the original docket shows that a fee of $9.00 was

paid by Respondents in connection with the praecipe for entry

of judgment. Indeed, an accurate reproduction of the docket

4

in this case would show that such a fee payment is unusual,

thus reflecting the fact that a praecipe for entry of judgment

involves an administrative procedure for closing the

Schuylkill County Court of Common Pleas docket.

A second entry on the Schuylkill County Court of

Common Pleas docket for January 9, 2006 states:

“JUDGMENT ENTERED-NOTICES SENT”. Pet. App. 10a.

It should be observed that neither the foregoing docket

entries nor any of the papers associated therewith made any

explicit reference to Pennsylvania Rule of Civil Procedure

236. Thus, Petitioners’ statement on pages 7-8 of the petition

that the January 9, 2006 notice was “a Notice sent pursuant

to Pa. R. Civ. P. 236” is a legal argument by Petitioners and

not a designation in the documents themselves. Indeed, the

document that Petitioners contend was the Rule 236 notice

states: “If you have any questions regarding this Notice,

please contact the filing party,” which it identified as Plaintiff

M. Robert Ullman and his counsel in the trial court

proceedings. Pet. App. 21a-22a. In other words, if Petitioners

were to have any questions about the notice, they were to

contact themselves. (Note: Undersigned counsel of record

for Respondents, who was the attorney who filed the praecipe

for entry of judgment, did not prepare the notice reproduced

on pages 21a and 22a of Petitioners’ Appendix and, in fact,

never received a copy of it from the Schuylkill County Court

of Common Pleas but rather saw it for the first time when it

was later attached to one of Petitioners’ filings.)

Having arrived at their legal conclusion that the January

9, 2006 notice (as distinguished from the December 30, 2005

notice discussed supra) was the Pa. R. Civ. P. 236 notice,

Petitioners go on to say that “[o]n February 7, 2006, 29 days

5

after Rule 236 Notice was noted on the docket, Canoe and

Ullman filed their Notice of Appeal... .” Pet. 8 (emphasis

added). However, as established above, no explicit

reference—either on the docket itself or in the associated

papers——was made to Rule 236. The subject January 9, 2006

docket entry merely stated “JUDGMENT ENTERED-

NOTICES SENT”. Pet. App. 10a. Meanwhile, the December

30, 2005 docket entries had already stated: “ORDER-

GRANTED” (referring to the grant of summary judgment)

and “OPINION AND ORDER OF COURT-COPIES

MAILED”. Pet. App. 10a (note the date correction of the

latter entry discussed supra).

Pages 9-10 of the petition contain an interesting, albeit

irrelevant, discussion of Superior Court internal operating

procedures. Petitioners then purport to characterize

Respondents’ Motion to Quash Petitioners’ appeal to the

Pennsylvania Superior Court. (Respondents’ Motion to

Quash is set forth on pages 39a-46a of Petitioners’ Appendix

and speaks for itself.) Petitioners take issue with the legal

position set forth in the Motion to Quash that the Rule 236

notice was the December 30, 2005 notice. As established

supra, neither the December 30, 2005 notice nor the January

9, 2006 notice contained any explicit reference to Pa. R. Civ.

P. 236, and the question of which notice was the Rule 236

notice is a matter of Pennsylvania law.

Petitioners filed an Answer to the Motion to Quash in

which they argued, inexplicably, that the December 30, 2005

Order was not a final order because it did not dispose of all

claims and all parties. Pet. App. 47a-63a. Petitioners’

argument was based on the fact that the Court granted

summary judgment to Respondents on some but not all of

the grounds set forth in the motion for summary judgment.

6

However, the result of the December 30, 2005 summary

judgment was that all claims of all Plaintiffs (the Petitioners)

were extinguished. No counterclaims existed in the case at

this juncture. Nevertheless, Petitioners argued that the

December 30, 2005 Order was not final, because the

Schuylkill County Court of Common Pleas had not addressed

some of the arguments in Respondents’ motion for summary

judgment. In making this and other arguments, Petitioners’

Answer to the Motion to Quash never once cited any federal

constitutional provision, statute, regulation, or decision.

Moreover, Petitioners’ Answer to the Motion to Quash

failed to make the argument, emphasized in the pending

petition for a writ of certiorari, that the December 30, 2005

notice was not the Pa. R. Civ. P. 236 notice. To the contrary,

Petitioners admitted that the December 30, 2005 notice was

the Rule 236 notice. Numbered paragraph 10 of the

Respondents’ Motion to Quash alleged: “The [summary

judgment] Order was docketed on December 30, 2005 and

Rule 236 Notice was sent the same day. (See Exhibit ‘A,’

Docket Entries, p. 2; containing the notation ‘COPIES

MAILED’).” Pet. App. 41a (emphasis added). In their Answer

to the Motion to Quash, Petitioners responded: “Admitted.”

Pet. App. 48a (emphasis added).

Respondents thereafter filed a Reply to Petitioners’

Answer to the Motion to Quash. Pet. App. 64a-76a.

On April 12, 2006, the Pennsylvania Superior Court

entered a per curiam Order granting the Motion to Quash.

Pet. App. 77a. The Order stated simply and without opinion:

“The court hereby GRANTS the motion to quash.” /d.

(emphasis added). It was signed “PER CURIAM”. /d. There

is no indication that the Superior Court Prothonotary or

7

Deputy Prothonotary ruled on the Motion to Quash, and the

“per curiam” designation indicates that it was the decision

of a panel of three judges as distinguished from a decision

of a motions judge. Petitioners’ statement that “the decision

may well have been made by one judge relying on the

reasoning of one Staff attorney” (petition 12) is unsupported

in the record and is, in any event, irrelevant, since Petitioners

do not argue that the decision of a single motions judge on

this issue would violate the Constitution of the United States.

Petitioners thereafter filed what they styled an

“Application for Reargument Before a Court En Banc of

Order Improvidently Quashing Appeal” in the Pennsylvania

Superior Court. Pet. App. 78a-94a. As indicated in the Table

of Citations included with this Application, Petitioners failed

to cite any federal constitutional provision, statute,

regulation, or decision in their Application. Jd. 81a. However,

the Application now raised, for the first time, a Pennsylvania

state law issue regarding Pa. R. Civ. P. 236 and made an

argument (involving, inter alia, ad hominem attacks on

Respondents’ counsel) that directly contradicted their

previous admission, discussed supra, that the December 30,

2005 notice was the Rule 236 notice. Pet. App. 83a-92a

In a per curiam Order filed May 5, 2006, the

Pennsylvania Superior Court denied the Petitioners’

Application for Reargument. Pet. App. 107a.

Petitioners then filed, in the Supreme Court of

Pennsylvania, a Petition for Allowance of Appeal. Pet. App.

108a-129a. Again, as indicated in the Table of Citations of

this document, Petitioners failed to cite any federal

constitutional provision, statute, regulation, or decision. /d.

11] la-1 12a. Respondents thereafter filed a Brief in Opposition

8

to Allowance of Appeal. Respondents’ Brief in Opposition

observed, inter alia, that Petitioners never raised the

Pa. R. Civ. P. 236 argument until they sought reargument in

the Pennsylvania Superior Court and that they specifically

admitted, in their Answer to the Motion to Quash, that the

Rule 236 notice was sent on December 30, 2005. Pet. App.

139.

On November 1, 2006, the Pennsylvania Supreme Court

denied Petitioners’ Petition for Allowance of Appeal. Pet.

App. 148a. Thereafter, Petitioners filed the pending petition

for a writ of certiorari.

REASONS FOR DENYING THE PETITION

I. SUPREME COURT JURISDICTION CANNOT BE

PREDICATED UPON 28 U.S.C. § 1254 WHERE

THE PETITIONERS SEEK REVIEW OF A STATE

COURT JUDGMENT.

Petitioners invoke 28 U.S.C. § 1254 as the jurisdictional

basis for their petition. However, 28 U.S.C. § 1254 applies,

by its plain language, only to review, by writ of certiorari, of

decisions of United States Courts of Appeals. Petitioners seek

review of a decision of the Pennsylvania Superior Court, not

a decision of a United States Court of Appeals. Accordingly,

jurisdiction could only be predicated upon 28 U.S.C.

§ 1257(a). As explained infra, the petition does not meet the

jurisdictional requirements of 28 U.S.C. § 1257(a) and/or

the Court should deny the writ on the basis of prudential

principles associated with 28 U.S.C. § 1257(a).

9

Il. THE WRIT SHOULD BE DENIED, BECAUSE

NEITHER THE PETITIONERS NOR THE STATE

COURTS INVOKED OR DISCUSSED THE

FOURTEENTH AMENDMENT DUE PROCESS AND

EQUAL PROTECTION CLAUSES IN THE STATE

COURT PROCEEDINGS.

The Supreme Court has certiorari jurisdiction over state

court judgments only pursuant to 28 U.S.C. § 1257(a), which

provides in pertinent part: “Final judgments or decrees rendered

by the highest court of a State in which a decision could be had,

may be reviewed by the Supreme Court by writ of certiorari . . .

-where any title, right, privilege, or immunity is specially set up

or claimed under the Constitution . . . of . . . the United States.”

Although Petitioners never argued in the state court proceedings

a violation of the United States Constitution, their pending

petition asserts, without substantial argument, that their rights

have been violated under the Due Process Clause and Equal

Protection Clause of the Fourteenth Amendment.

As established in the Statement of the Case, supra,

Petitioners never cited, in the state court proceedings, any federal

constitutional provision, statute, regulation, or decision with

regard to any matter relevant to their petition. Although federal

law was discussed in the trial court with reference to the

bankruptcy issue raised in the second motion for summary

judgment, the Petitioners raise no bankruptcy issue in their

petition, nor could they raise any such issue given the procedural

posture of this case. With regard to their current citation of the

Fourteenth Amendment Due Process and Equal Protection

Clauses, Petitioners had ample opportunities to invoke these

federal constitutional provisions in their Answer to the Motion

to Quash filed in the Pennsylvania Superior Court, in their

Application for Reargument filed in the Pennsylvania Superior

10

Court, and in their Petition for Allowance of Appeal in the

Pennsylvania Supreme Court. However, Petitioners never once

cited those Clauses or any decisional authority discussing those

Clauses.

The Court has recently summarized the jurisdictional or

prudential principles applicable to the present petition as follows:

Congress has given this Court the power to

review “[f]inal judgments or decrees rendered by

the highest court of a State in which a decision could

be had... where any. .. right. . . is specially set up

or claimed under the Constitution or the treaties or

statutes of ... the United States.” 28 U.S.C.

§ 1257(a) (emphasis added). Under that statute and

its predecessors, this Court has almost unfailingly

refused to consider any federal-law challenge to a

state-court decision unless the federal claim “was

either addressed by or properly presented to the state

court that rendered the decision we have been asked

to review.” Adams v. Robertson, 520 U.S. 83, 86

(1997) (per curiam); see also /ilinois v. Gates, 462

U.S. 213, 218 (1983) (tracing this principle back to

Crowell v. Randell, 35 U.S. 368, 10 Pet. 368, 391

(1836), and Owings v. Norwood ’s Lessee, 9 U.S. 344,

5 Cranch 344 (1809)).

Petitioner’s brief in the State Supreme Court

did not properly present his claim as one arising

under federal law. In the relevant argument, he did

not cite the Constitution or even any cases directly

construing it, much less any of this Court’s cases.

Howell v. Mississippi, 543 U.S. 440, 443 (2005) (per curiam)

(emphasis added by Howell, footnote omitted).

11

The question of whether the foregoing “presentation

requirement” is jurisdictional or prudential is unsettled, but,

as in Howell, “even treating the rule as purely prudential,

the circumstances here justify no exception.” 543 U.S. at

445-46. In Howell, the Court dismissed the writ of certiorari

as improvidently granted. /d. at 446. The Court should

similarly deny the pending petition on the basis of the

foregoing analysis and the related failure of the Petitioners

to comply with Supreme Court Rule 14.1(g)(i).

ll. THE COURT SHOULD NOT UTILIZE GVR

PROCEDURES WHERE NEITHER THE

PETITIONERS NOR THE STATE COURTS

INVOKED OR DISCUSSED THE FOURTEENTH

AMENDMENT DUE PROCESS AND EQUAL

PROTECTION CLAUSES IN THE STATE COURT

PROCEEDINGS.

The petition requests the issuance of a “GVR” (granted,

vacated, and remanded) order “to remedy the .. . violation

of Petitioners’ Due Process and Equal Protection rights... .”

Petition i (Question Presented for Review). As demonstrated

above, however, neither the Petitioners nor the state courts

invoked or discussed either the Due Process Clause or the

Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution in the state court proceedings.

GVR practice may be broad, but it lacks a jurisdictional or

prudential foundation when no relevant federal question was

addressed in the state court proceedings of which Petitioners

seek Supreme Court review.

12

This case is, to say the least, not the usual situation in

which the Court invokes its GVR jurisprudence:

{O]ver ninety-seven percent of the GVRs issued by

the Court (thirty-seven out of thirty-eight remands)

during 2003 were based upon intervening Supreme

Court precedent, and over ninety-eight percent of

GVRs during 2002 and 2001 (sixty-three out of

sixty-four and eighty-three out of eighty-four cases,

respectively) were similarly based upon intervening

Supreme Court precedent.

Shaun P. Martin, Gaming the GVR, 36 Ariz. St. L.J. 551,

558 n.43 (Summer, 2004).

No intervening Supreme Court precedent is involved in

this case, and, indeed, no intervening precedent of any kind

has been cited by Petitioners.

The petition cites Lawrence v. Chater, 516 U.S. 163

(1996), in support of its request for GVR review. However,

the per curiam opinion in Lawrence stated that “we believe

that this Court has the power to remand to a /ower federal

court any case raising a federal issue that is properly before

us in our appellate capacity.” Id. at 166 (emphasis added).

In contrast, the present case is a request for review of a state

court decision that is not, as demonstrated supra, properly

before the Supreme Court in its appellate capacity. Moreo‘er,

Lawrence involved an intervening development, 1.¢., a new

legal position that was taken by the Commissioner of Social

Security (the respondent in that case). In fact, the

Commissioner of Social Security, in his response to the

petition for a writ of certiorari, “invites us to grant certiorari,

vacate the judgment below, and remand the case (GVR) so

13

that the Court of Appeals may either decide it in light of the

Commissioner’s new statutory interpretation or remand the

case to the Commissioner for reconsideration in light of that

interpretation.” Jd. at 165. Under those circumstances, the

Court agreed that a GVR order was appropriate. /d. at 165-

66. However, no such procedural scenario exists with regard

to the instant petition.

In Lords Landing Village Condominium Council v.

Continental Insurance Company, 520 U.S. 893 (1997), the

Court issued a GVR order in a diversity case where the Fourth

Circuit Court of Appeals decided a Maryland state law issue

without the benefit of a then recent decision of the highest

state court in Maryland that cast doubt on the Fourth Circuit’s

state law holding. Again, the instant case involves no such

procedural scenario.

The Court recently issued a GVR order with respect to a

decision of the West Virginia Supreme Court of Appeals in a

criminal case. Youngblood v. West Virginia, U.S. __, 126

S. Ct. 2188 (2006). However, in Youngblood, the defendant

“clearly presented a federal constitutional Brady claim to the

State Supreme Court ... as he had to the trial court... .”

126 S. Ct. at 2190. In the present case, Petitioners failed to

present their Fourteenth Amendment due process and equal

protection arguments to any state court.

Therefore, the Court should decline to issue a GVR order

in the instant case. The Court lacks subject matter jurisdiction

to grant a GVR order and/or should invoke its prudential

jurisprudence to deny a GVR order where Petitioners failed,

in the state court proceedings, to invoke the federal

constitutional provisions upon which they now rely.

14

IV. NO FEDERAL QUESTION IS PRESENTED

UNDER THE FOURTEENTH AMENDMENT DUE

PROCESS AND/OR EQUAL PROTECTION

CLAUSES WHERE PETITIONERS’ FAILURE TO

MEET STATE COURT APPELLATE DEADLINES

WAS A RESULT OF THEIR DISREGARD OF

PREEXISTING AND CONTROLLING STATE

COURT APPELLATE PRECEDENT.

As established supra, the petition should be denied,

because neither Petitioners nor the state courts invoked or

discussed the Fourteenth Amendment Due Process or Equal

Protection Clauses in the state court proceedings. In addition

or in the alternative, the petition presents no substantial

federal question under the Fourteenth Amendment Due

Process and Equal Protection Clauses. In fact, the petition

nowhere cites any decisional authority, or even elaborates

any argument, to support any theory of violation of either

the Due Process Clause or the Equal Protection Clause of

the Fourteenth Amendment. Although the petition, for the

first time in the history of this case, now mentions the

Fourteenth Amendment Due Process and Equa! Protection

Clauses, it fails to make any federal constitutional argument

and cites no decisional authority supporting any federal

‘constitutional theory.

Petitioners’ analysis in this Court, like their analysis in

the state courts below, relies solely on argumentation

regarding state law issues. Although it hardly seems necessary

to respond in this Court to Petitioners’ state law arguments,

the present brief addresses them in order to correct certain

misimpressions the Petitioners advance regarding the

procedural history of this case and the applicable state law.

15

Rule 236 of the Pennsylvania Rules of Civil Procedure

provides in pertinent part:

(a) The prothonotary shall immediately give

written notice of the entry of...

(2) any other order or judgment to each party’s

attorney of record or, if unrepresented, to each

party. The notice shall include a copy of the order

or judgment.

(b) The prothonotary shall note in the docket the

_ giving of the notice. ...

The Schuy!kill County Court of Common Pleas granted

summary judgment in favor of Respondents on December

30, 2005. Pet. App. 10a, 12a-19a. That Court’s docket

contains two entries for December 30, 2005. One entry states:

“ORDER-GRANTED”. The other entry for December 30,

2005 states: “OPINION AND ORDER OF COURT-COPIES

MAILED”. Pet. App. 10a. (Note: Although page 10a of

Petitioners’ Appendix incorrectly states the filing date of the

latter entry as “12/20/2005”, the original docket stated “12/

30/2005”. This is not disputed, as Petitioners state on page 7

of their petition that the latter docket entry was dated

December 30, 2005.)

The December 30, 2005 entries make it clear that the

Pa. R. Civ. P. 236 requirements were met in the docket entries

for that date. Although those docket entries did not explicitly

mention Rule 236, neither did the January 9, 2006 docket

entries on which Petitioners now rely. (See the Statement of

the Case, supra.) Rule 236 does not require any explicit

16

reference to that rule in the docket entry. Accordingly, it is

not surprising that Petitioners admitted, in their Answer to

the Respondents’ Motion to Quash the appeal to the

Pennsylvania Superior Court, that the Pa. R. Civ. P. 236 notice

was, in fact, the December 30, 2005 notice. Numbered

paragraph 10 of the Respondents’ Motion to Quash alleged:

“The [summary judgment] Order was docketed on December

30, 2005 and Rule 236 Notice was sent the same day. (See

Exhibit ‘A,’ Docket Entries, p. 2; containing the notation

‘COPIES MAILED’).” Pet. App. 41a (emphasis added). In

their Answer to the Motion to Quash, Petitioners responded:

“Admitted.” Pet. App. 48a (emphasis added). Petitioners did

not make their current Rule 236 argument until after the

Superior Court quashed the appeal in reliance upon their

admission. Having waived this argument in their Answer to

the Motion to Quash, Petitioners cannot legitimately claim

that they were denied their rights under the Fourteenth

Amendment Due Process and Equal Protection Clauses.

Petitioners rely on Frazier v. City of Philadelphia, 557

Pa. 618, 735 A.2d 113 (1999), but that decision does not

support their position. In Frazier, a final order

was entered on the docket on April 8, 1997, and

notice of the order was mailed to and received by

the parties. The prothonotary, however, failed to

indicate on the docket, as required by Rule 236

of the Pennsylvania Rules of Civil Procedure, that

notice of the order had been provided to the

parties.

557 Pa. at 619-20, 735 A.2d at 114. In contrast, as

demonstrated supra, the Prothonotary of Schuy!kill County,

in the present case, entered the following two items on the

17

docket for December 30, 2005: “ORDER-GRANTED” and

“OPINION AND ORDER OF COURT-COPIES MAILED”.

It is undisputed that these docket entries refer to the grant of

the summary judgment to Respondents on December 30,

2005. As Petitioners admitted in their Answer to the Motion

to Quash, the December 30, 2005 “COPIES MAILED”

docket notation properly reflected that Rule 236 notice was

sent the same day.

Moreover, the procedural scenario in Frazier was

different from that of the present case. In Frazier, the subject

of the Rule 236 notice was a default judgment. The present

case involves a summary judgment. The Pennsylvania

Superior Court (the intermediate Pennsylvania appellate court

for nongovernmental matters) issued a caveat to all

Pennsylvania attorneys in a famous April 23, 2004 published

decision: “We advise the bar to be wary of a common

pitfall[:] the appeal must be filed within thirty days of the

Rule 236 notice of summary judgment, not a later-filed

praecipe to enter judgment. Gariland v. Rosenthal, 2004 Pa.

Super. 134, 850 A.2d 671, 671 n.1 (2004). This has long

been the rule in Pennsylvania:

The subsequent praecipe for judgment was a

meaningless act because the [summary] judgment

had already been entered. . . . Because the appeal

from the summary judgment was filed on August

15, 1985, more than 30 days after the entry of the

judgment on July 8, 1985, the present appeal is

untimely and must be quashed.

Progressive Home Fed. Sav. & Loan Ass'n v. Kocak, 359 Pa.

Super. 120, 123, 518 A.2d 808, 809 (1986); accord Feidler

v. Morris Coupling Co., 2001 Pa. Super. 294, 784 A.2d 812,

18

814 n.1 (2001) (“In an abundance of caution, Morris Coupling

sought entry of judgment on the order granting its motion

for summary judgment. Since the order granting summary

judgment disposed of the entire matter, the order itself was

final and appealable.”).

Petitioners’ reliance on Hepler v. Urban, 518 Pa. 482,

544 A.2d 922 (1988) (“Hepler I”), and Hepler v. Urban, 530

Pa. 375, 609 A.2d 152 (1992) (“Hepler II’), is misplaced.

Hepler I reversed a summary judgment where there was “no

notation in the docket that notice was given concerning entry

of the order granting appellees’ motion for summary

judgment.” 518 Pa. at 485, 544 A.2d at 923. In contrast, as

established supra, a notation on the docket in the present

case stated that copies of the Order granting summary

judgment were mailed on December 30,-2005. Hepler Il

merely held that a notation on a blueback attached to a

summary judgment order was not a notation in the docket

that notice of the summary judgment had been given. 530

Pa. at 380, 609 A.2d at 152. Since a December 30, 2005

notation in the docket in the present case states that copies

of the summary judgment order were mailed on that date,

Hepler II is also inapposite.

Thus, Petitioners’ entire argument regarding stare decisis

is irrelevant. The quashal of the Petitioners’ appeal in the

present case was entirely consistent with Pennsylvania

precedent. Moreover, the United States Supreme Court stare

decisis decisions cited in the petition involve only stare

decisis issues at the level of the Supreme Court. None of the

decisions cited in the petition stands for the proposition that

the Supreme Court will find a violation of the Fourteenth

Amendment for an alleged defect in state court stare decisis

analysis. Indeed, the approach suggested by Petitioners would

19

be inconsistent with the principles of federalism that are

essential to our form of government. Insofar as the petition

cites Pennsylvania law on stare decisis, that is a matter for

the Pennsylvania state courts, not for the Supreme Court of

the United States.

Petitioners would have the Court issue a GVR order on

the basis of Pennsylvania law. However, as established above,

even the requirements of Pennsylvania law were met in this

case. Petitioners’ failure to comply with pre-existing and

controlling Pennsylvania law precedent was the sole cause

of their untimely filing of an appeal to the Pennsylvania

Superior Court. Moreover, the petition invokes the Fourteenth

Amendment Due Process and Equal Protection Clauses but

does not discuss Fourteenth Amendment due process and

equal protection principles. The petition fails to cite any

Supreme Court or other authority holding that the type of

procedural scenario involved in this case violates the

Fourteenth Amendment. Accordingly, the petition fails to

raise a substantial federal question, and the writ should be

denied for this additional reason.

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CONCLUSION

On the basis of the foregoing arguments and authorities,

the petition for a writ of certiorari should be denied.

Respectfully submitted,

ALAN E. JOHNSON

Counsel of Record

MARSHALL, DENNEHEY, WARNER,

CoLemaN & GocaINn

600 Grant Street, Suite 2900

Pittsburgh, PA 15219

(412) 803-1140

JOHN J. HARE

MArRSHALL, DENNEHEY, WARNER,

COLEMAN & GOGGIN

1845 Walnut Street

Philadelphia, PA 19103

(215) 575-2609

Counsel for Respondents