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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

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

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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.

20

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2107%3A2. Public record. Not legal advice.