Appellate lawyers who spoke with The Legal said there is not a clear reason for the drop-off, but the change could be linked to the type of cases the justices are taking up.

April 23, 2024, by: Aleeza Furman, Litigation Reporter, Law.com, Legal Intelligencer

The Pennsylvania Supreme Court has been reversing Superior Court rulings far less frequently in recent years, court data shows.

According to a recently published Superior Court annual report, the Supreme Court’s reversal rate of Superior Court rulings in 2022 and 2023 was less than half of what it was in the decade prior.

Appellate lawyers who spoke with The Legal said there is not a clear reason for the drop-off, but the change could be linked to the type of cases the justices are taking up.

“The court has taken a number of cases where it ended up agreeing with the Superior Court’s decision but wants to delve into additional aspects of the issue,” Marshall Dennehey shareholder John Hare said.

Hare said many of the civil cases before Pennsylvania’s justices in recent years have dealt with the nuances of a particular issue while still ultimately upholding the lower court’s decision.

“It’s taken very significant cases like Hangey [v. Husqvarna ] on venue and like Sullivan [v. Werner] on products liability, where it could simply have denied review because it agreed with the Superior Court’s decision, but it ended up accepting review and deciding the cases itself,” Hare said.

And as the high court establishes clearer case law, Hare said, the intermediate appellate courts gain more guidance and become less likely to be reversed.

The Superior Court report showed that reversals comprised 13% of the Supreme Court’s dispositions of granted appeals from the Superior Court in 2023, and 16% in 2022.

Those percentages are lower than they were in any other year in the preceding decade, with previous years’ reports showing that the reversal rate averaged 32% between 2012 and 2021.

“The lower reversal rates in 2022 and 2023 may be due to the fact that the court has been accepting a wider variety of cases for review,” Lamb McErlane partner Maureen McBride said in an email. “In some instances,” she continued, “the court may have granted review simply to opine on an area of law that the court had not recently addressed, rather than to reverse a decision of the Superior Court.”

Duane Morris partner Rob Byer said it is difficult to discern the reasons for the difference without examining the particular cases that were up for appeal, but, he said, the Supreme Court appears to be taking on the same sorts of significant, policy-oriented issues they typically have in the past.

Like Hare and McBride, Byer posited that the justices may be more frequently agreeing to consider cases based on the questions involved rather than based on a perceived legal error.

“Maybe they’re just looking at the issue, and even if they think the court might have gotten it right, they still will take it because they think they ought to be the ones to opine on it,” Byer said.

The other two types of dispositions tracked in the Superior Court reports—“affirmed” and “other”—fluctuated more widely than reversals across the years. Still, 2023 stood out for the frequency of affirmances from the Supreme Court.

The high court affirmed 64% of the Superior Court rulings it considered in 2023, while its affirmance rates between 2012 and 2022 ranged from 21% to 55%.

Solo practitioner Howard Bashman contended that the apparent rise in agreement between the Superior and Supreme courts may be a function of the makeup of their benches.

Bashman noted that the two years of low reversal rates followed the death of Chief Justice Max Baer in late 2021, which left a vacancy on the Supreme Court that remained through the end of 2023.

“One possible explanation might be it just became mathematically a little bit harder with only six justices to overturn something,” he said.

Bashman also suggested that the Superior and Supreme courts may be more philosophically aligned now than they had been in the past.

He said both courts “are pretty moderate these days in terms of how their rulings are coming out.”

And, Bashman added, the current bench of Pennsylvania justices seems more likely to side with personal injury plaintiffs than the court has been at times in the past. As a result, he said, the defense bar has expressed some reluctance to seek high court review on certain issues.

Bashman said he would not be surprised if the Supreme Court continued to reverse a smaller percentage of Superior Court rulings in the coming years, though he noted that the numbers will depend on what the cases are.

Still, according to the lawyers who spoke with The Legal, the cause of the shrinking reversal rate is ultimately hard to pin down, as is the question of whether or not it will continue.

“I would think that reversal rates will ebb and flow over time depending on the particular cases that the court agrees to review,” Hare said.

Read the article on Law.com here.