Prospective clients often ask me about the statistical possibility of being heard by the Pennsylvania Supreme Court. I typically tell them that the likelihood of being heard is remote. In 2011, the court received 2,363 petitions and granted only 101. That figure is somewhat misleading because in calendar year 2011, the court granted some petitions filed in previous years. At the end of 2011, it had not yet considered 1,013 petitions, some of them filed prior to January 1, 2011. However, the numbers are fairly consistent across the years. In 2010, the court received 2,282 allocatur petitions and granted 104. In 2009, it received 2,420 allocatur petitions and granted only 86. Therefore, any given petition has a less than 5% chance of being granted.
These figures do not tell the whole story because the court grants allowance of appeal in far more criminal cases than in civil cases. My review shows that in 2012, in addition to a handful of summary grants/remands, it granted allocatur in 30 civil cases. I culled the following cases from LEXIS—which may not have reported everything—in an attempt to get some sense as to the types of cases the court has agreed to consider:
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1 |
Octave v. Walker, 58 A.3d 753 | discovery, privilege issue concerning mental health records |
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2 |
Bricklayers of W. Pa. Combined Funds v. Scott’s Dev. Co., 58 A.3d 748 | mechanics lien |
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3 |
Vanderhoff v. Harleysville Ins. Co., 55 A.3d 1056 | Uninsured motorist- phantom vehicle, late report, prejudice |
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4 |
Horton v. Wash. County Tax Claim Bureau, 55 A.3d 1054 | tax sale procedure |
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5 |
E.A.R.A. v. Dep’t of Pub. Welfare, 55 A.3d 1048 | sex abuse |
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6 |
Howard v. A.W. Chesterton Co., 55 A.3d 1046, 1045 | asbestos |
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7 |
Roethlein v. Portnoff Law Assocs., 53 A.3d 1317 | real estate tax, usury |
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8 |
City of Philadelphia v. Philadelphia Transload & Logistics, LLC, 53 A.3d 1316 | statute of limitations municipal gas lien |
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9 |
Pa. Nat’l Mut. Cas. Ins. Co. v. St. John, 53 A.3d 1316 | insurance trigger issue |
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10 |
Garman v. Heine, 52 A.3d 223 | malpractice tolling; discovery rule issue |
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11 |
Barrick v. Holy Spirit Hosp. of the Sisters of the Christian Charity, 52 A.3d 221 | whether there is a privilege for communications between expert and trial counsel |
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12 |
Cruz v. Workers’ Comp. Appeal Bd. (Kennett Square Specialties), 51 A.3d 183 | workers’ comp; undocumented worker |
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13 |
Osprey Portfolio, LLC v. Izett, 51 A.3d 181 | statute of limitations in contract case |
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14 |
Meyer v. Cmty. College of Beaver Cty., 51 A.3d 177 | UTPCPL case |
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15 |
Norfolk Southern Ry. Co. v. PUC, 50 A.3d 123 | public utility code |
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16 |
Comella v. GGNSC Mt. Lebanon, L.P., 2012 Pa. LEXIS 1553 | choice of arbitral forum |
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17 |
Braun v. Wal-Mart Stores, Inc., 47 A.3d 1174 | class action evidence issue |
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18 |
Cozzone v. Workers’ Comp. Appeal Bd. (Pa. Municipal/East Goshen T…, 46 A.3d 1286 | workers comp; reinstatement, penalty issues |
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19 |
Passarello v. Grumbine, 44 A.3d 654, 656 | medical malpractice — error of judgment rule |
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20 |
Levy v. Senate of Pa., 44 A.3d 1146 | attorney/client, right to know issues |
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21 |
Herd Chiropractic Clinic, P.C. v. State Farm Mut. Auto. Ins. Co., 43 A.3d 478 | automobile insurance, first party benefits, attorney fees |
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22 |
Dorsey v. Redman, 42 A.3d 1001 | political subdivision tort claims act – immunity |
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23 |
Lipsky v. State Farm Mut. Auto. Ins. Co., 41 A.3d 1288 | automobile insurance coverage |
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24 |
PPM Atl. Renewable v. Fayette County Zoning Bd., 41 A.3d 854 | zoning |
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25 |
Butler v. Charles Powers Estate, 41 A.3d 854 | mineral rights, Marcellus shale case |
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26 |
Castellani v. Scranton Times, L.P., 41 A.3d 852 | evidence: judicial notice |
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27 |
Stuckley v. Zoning Hearing Bd., 39 A.3d 992 | zoning |
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28 |
Wayne M. Chiurazzi Law, Inc. v. MRO Corp., 39 A.3d 267 | medical records act – costs, etc. |
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29 |
Brown v. Levy, 38 A.3d 768 | prisoner civil litigation |
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30 |
Pulse Techs., Inc. v. Notaro, 36 A.3d 1096 | employment contract, restrictive covenants |
These represent a broad array of issues and facts: four insurance coverage cases, a sprinkling of evidence issues, a few workers’ compensation cases, a smattering of zoning appeals, etc. It is difficult to determine if the court set out in advance to find a wide assortment from the world of civil litigation or if it just turned out that way.
So how to advise clients? I typically explain that even if there is an “agenda” governing the allocatur process, it is inscrutable and mysterious. If the Court has recently decided a series of evidence issues, it may not be in the mood to tackle another. Or maybe it will. There’s no way to know. One might be able to persuade the court to weigh in on an issue that lower courts have treated inconsistently to sow clarity in the face of confusion. Unless, of course, the court has other more pressing issues on its plate.
And who said life isn’t arbitrary?
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