Schaaf v. Kaufman

• Decision Date: 22 April 2004
• Citation: 850 A.2d 655
• Court: Pennsylvania Superior Court
• Parties: Albert K. SCHAAF and Patricia Z. Schaaf, H/W, Appellants, v. Stephen E. KAUFMAN, M.D., Gastrointestinal Associates, Inc., and William S. Haaz, M.D., Appellees.

850 A.2d 655

Albert K. SCHAAF and Patricia Z. Schaaf, H/W, Appellants, v. Stephen E. KAUFMAN, M.D., Gastrointestinal Associates, Inc., and William S. Haaz, M.D., Appellees.

Superior Court of Pennsylvania.

Argued February 4, 2004.

Filed April 22, 2004.

Reargument Denied June 28, 2004.

J. Craig Currie, Philadelphia, for appellants.

Michael E. McGilvery, for appellees.

Before: KLEIN, McCAFFERY and OLSZEWSKI, JJ.

OPINION BY KLEIN, J.:

¶ 1 In a medical malpractice case, Patricia Z. Schaaf appeals the judgment entered on a defense verdict in favor of William S. Haaz, M.D. We affirm.

¶ 2 Albert Schaaf was scheduled to have a colonoscopy on June 10, 1998, which revealed bowel cancer from which he ultimately died. Three days before the colonoscopy, on June 7, 1998, Mr. Schaaf slurred his words while reading to his wife, Patricia Schaaf ("plaintiff"). Mr. Schaaf discussed the problem with his cardiologist, Dr. Haaz. Dr. Haaz allegedly committed negligence by not recognizing that Mr. Schaaf had suffered atrial fibrillation, and therefore did not take proper steps to prevent a stroke that occurred after the colonoscopy. At trial, Dr. Haaz's expert testified that the doctor's treatment of Mr. Schaaf was within the standard of care and was not negligent, and that is what the jury found.

¶ 3 Schaaf claims five errors that require a new trial. However, none has merit, and we will affirm.

¶ 4 Before we discuss the merits of the case, we digress to grant the defense motion to strike from appellant's brief any mention of our memorandum decision in Gould v. Scheiner, 970 EDA 2001, 823 A.2d 1032 (Pa.Super. filed March 18, 2003) (unpublished memorandum). Citing our memorandum decisions is prohibited by Superior Court Internal Operating Procedure (IOP) § 65.37(A): "An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding...." 210 Pa.Code § 65.37.

¶ 5 Section 65.37(A) in effect embodies two rules. It prohibits parties and courts from citing our memorandum decisions (the "no citation" rule).¹ It also declares that our memorandum decisions bind no party or court (the "non-binding" rule). Schaaf argues that both the no citation rule and the non-binding rule violate the Vesting Clause in Article V, section 1 of the Pennsylvania Constitution. Schaaf further argues that these rules violate the Due Course of Law Clause of Article I, section 11 of the Pennsylvania Constitution.² We reject both challenges.³

¶ 6 We have found no case determining whether IOP 65.37(A) may be enforced under the Pennsylvania Constitution. We first address Schaaf's argument that IOP 65.37 violates the Vesting Clause in Article V, section 1. That section of the Constitution states:

The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court, the Superior Court, the Commonwealth Court, courts of common pleas, community courts, municipal and traffic courts in the City of Philadelphia, such other courts as may be provided by law and justices of the peace. All courts and justices of the peace and their jurisdiction shall be in this unified judicial system.

¶ 7 To support her argument, plaintiff relies on a decision of the United States Court of Appeals for the Eighth Circuit that held that prohibiting citations to memorandum opinions was unconstitutional under the similar clause in the United States Constitution.⁴Anastasoff v. United States, 223 F.3d 898 (8th Cir.2000), vacated as moot, 235 F.3d 1054 (8th Cir.2000)

.

¶ 8 Schaaf's reliance is misplaced. In Anastasoff, the plaintiff, a taxpayer, was seeking a refund from the Internal Revenue Service. A three-judge panel of the Eighth Circuit initially affirmed the district court's order granting the government summary judgment. In doing so, the panel declared unconstitutional the Eighth Circuit's rule rendering unpublished opinions nonbinding and forbidding parties and courts from citing them.

¶ 9 The Eighth Circuit looked at a wide range of historical and contemporary sources and penned a scholarly opinion. It first explained the doctrine of precedent as the duty to follow prior cases' declarations of the law to the extent they were necessary for the earlier decision. It then concluded that at the time the United States Constitution was written, the Founders considered the doctrine of precedent part and parcel of judicial power and intended it as a limitation on the federal judiciary's exercise of its power. 223 F.3d at 900.

¶ 10 The Eighth Circuit then agreed to take the case en banc. By the time the case came up for rehearing, however, the IRS had agreed to pay the taxpayer her money, which rendered the case moot and the federal courts without jurisdiction. The en banc court vacated the panel's decision and explained that the issue was still open in Eighth Circuit. 235 F.3d at 1056. Of course, the Anastasoff panel opinion still stands as a precedent of sorts—it just is no longer a binding precedent in the Eighth Circuit (or anywhere else).⁵

¶ 11 Nonetheless, we disagree that the Pennsylvania Constitution does not allow memorandum decisions—that is, judicial decisions that are non-binding and non-citable, except to the extent the rules surrounding the law of the case doctrine require.

¶ 12 The "judicial power" referred to in Pennsylvania's Vesting Clause is simply the power to decide cases. That is all. Certainly we operate within the common law custom of judicial lawmaking, but that does not mean that we must make law (beyond the case at bar, that is) every time we make a decision. Stated differently, just because the "judicial power" we have been given includes the power to make law does not mean we must exercise that power in every case.

¶ 13 An example bears this out. Our Supreme Court frequently enters per curiam orders affirming or reversing the courts below. See, e.g., Gwin v. Merkin, No. 107 MAL 2003, 843 A.2d 380 (Pa. filed March 2, 2004). However, those orders lack anything beyond law-of-the-case effect. Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898, 904-5 (1996) ("[W]e did not sub silentio overrule [Commonwealth v. Harris, 423 Pa.Super. 190, 620 A.2d 1175 (1993)] by our per curiam order of affirmance in Abraham [v. Dep't of Corr. of Pa., 150 Pa.Cmwlth. 81, 615 A.2d 814 (1992)]."). See also Commonwealth v. Nobalez, 805 A.2d 598, 601-2 (Pa.Super.2002)

.

¶ 14 Yet no one could reasonably claim that in issuing those orders, the Supreme Court was acting in anything other than a judicial capacity within the common law model. Those orders decided cases, and although they did not declare law binding in other unrelated cases, they fall within the common law model as cases decided by adversarial procedures and following previous decisions. See, e.g., Commonwealth v. Ceo, 652 EAL 2002, 845 A.2d 199 (Pa. filed Feb. 24, 2004)

.

¶ 15 We have found no appellate court decision adopting Anastasoff's reasoning. In fact, the trend is just the opposite. The leading criticism was iterated by Judge Alex Kozinski of the Ninth Circuit:

Unlike the Anastasoff court, we are unable to find within Article III of the Constitution a requirement that all case dispositions and orders issued by appellate courts be binding authority. On the contrary, we believe that an inherent aspect of our function as Article III judges is managing precedent to develop a coherent body of circuit law to govern litigation in our court and the other courts of this circuit. We agree with Anastasoff that we—and all courts— must follow the law. But we do not think that this means we must also make binding law every time we issue a merits decision. The common law has long recognized that certain types of cases do not deserve to be authorities, and that one important aspect of the judicial function is separating the cases that should be precedent from those that should not. Without clearer guidance than that offered in Anastasoff, we see no constitutional basis for abdicating this important aspect of our judicial responsibility.

Hart v. Massanari, 266 F.3d 1155, 1180 (9th Cir.2001).

¶ 16 Moreover, it is not clear that the view of history Anastasoff rests on has as strong a foundation as it purports. See Hart, 266 F.3d at 1175

; Failings of Originalism, 37 U.C. Davis L.Rev. at 805-813. We do not need to enter this debate, because even if Anastasoff's analysis version of history is accurate, it still puts the accent on the wrong beat.

¶ 17 History is just that—an account of the past. Whatever guidance they might offer, past practices were designed for past conditions. History is not a straightjacket. In the end, the Anastasoff line of reasoning essentially works backwards from an account of what judges once did, to find within the grant of judicial power a requirement to act within that view of what judges should do. This is no answer. The real issue is what the Constitution—a basic outline of government, not a code of laws—means today, giving due consideration to past, present, and possibly unforeseen future, circumstances.

¶ 18 In the centuries since William Penn founded the colony, things have changed significantly. Modern courts (particularly state courts) are faced with an overwhelming crush of cases where the common law appellate courts had a much lighter docket. In the 13 years between the founding of the Superior Court in 1895 and 1908, we decided 4,991 appeals. See Hon. Patrick R. Tamilia & John J. Hare, Keystone of Justice: The Pennsylvania Superior Court 88 (2000).

¶ 19 In recent years, we have adjudicated a similar number in a single year. In 2003, although the number of commissioned judges had slightly more than doubled from seven to 15, the increase in cases was far greater: Last year, we rendered 5,272 decisions. Whatever the common law courts thought they had to do does not tell us very much about what our Constitution requires us to do now under such drastically different circumstances. And it...