The election of interim Justice Sallie Updyke Mundy to a full term on the court this past November, coupled with the voter-approved increase to the judicial retirement age the previous year, means the Pennsylvania Supreme Court can finally be said to have a full, stable bench after years of upheaval and uncertainty.

This now-solidified iteration of the high court ruled on several closely watched, highly impactful cases in 2017. But the frequency and circumstances of some of the justices' disagreements throughout the year made clear that stability among the court's personnel doesn't necessarily equal harmony of viewpoint.

Questioning the Questions

While it's certainly not at all uncommon for the Supreme Court to find itself divided on how to answer what are often highly complex questions, this year saw the court splintering on some unusual issues.

In particular, more than one case gave way to disputes among the justices about what, exactly, they were supposed to be deciding in the first place.

In a 5-2 decision in Duffey v. Workers' Compensation Appeal Board (Trola-Dyne), the court ruled in January that physicians conducting impairment rating evaluations must factor into their assessments any asserted psychological conditions, such as depression and post-traumatic stress disorder, and determine whether they stem from the claimant's physical injury.

But the case found the justices sparring over not only the majority's holding but also the scope of the issue before them on appeal.

Justice David Wecht argued in his dissent that the issue before the justices was a narrow one involving whether an IRE can be invalidated by an amendment that expands the injury description on a notice of compensation payable. The majority, however, chose to engage in a broader interpretation of Section 306(a.2) of the Workers' Compensation Act, Wecht said.

“With today's decision, the majority by judicial fiat converts the statute's impairment-rating process into one in which physicians must scrutinize each 'condition' hinted at by a claimant, and then determine which, if any, are 'fairly attributable' to the compensable injury,” Wecht said.

Justice Max Baer, in his own dissent, said the plaintiff never claimed that his psychological impairments derived from his hand injury, but rather were additional injuries caused by his electrocution. The majority nevertheless found that a physician-evaluator must examine every impairment a claimant mentions and then make a decision as to whether that impairment was caused by the compensable injury, Baer said.

But Saylor said the plaintiff made clear in his brief that he was asking the court to determine whether physician-evaluators have an obligation “'to address all work-related conditions at the time of the evaluation.'”

“As a more general observation, a court of last resort must have some leeway to make rational judgments and pronouncements that are not strictly confined according to the precise letter of parties' arguments,” Saylor said. “Otherwise, the law would be shaped according to the nuances of the litigants' presentations, including the extremes toward which they sometimes press their positions within the adversary system.”

In February, the court split 5-2 in its decision to dismiss the appeal in Angino & Rovner v. Jeffrey R. Lessin & Associates as having been improvidently granted. The order came about two-and-a-half months after oral arguments in the case, which centered on a dispute over a contingency fee agreement that sought to impose a financial penalty on a client for switching lawyers. Justices Wecht and Christine L. Donohue dissented from the order.

In May, the justices again found themselves at odds in a case long before actually adjudicating it on the merits. Two weeks after hearing arguments in Erie Insurance Exchange v. Bristol about what it takes to preserve a demand for arbitration in an uninsured motorist case, the court took the unusual step of issuing an order that tweaked the question the court was preparing to consider.

The move, which attorneys said they had never seen before, led Wecht to issue a statement clashing with the rest of the court over whether re-writing the question on appeal was proper.

“If adhering to our own rules of appellate procedure is too 'disruptive' … it seems to me that we should seek to amend them. Selective enforcement is not the solution,” Wecht said. “At that point, rules become mere suggestions. And we can then dispense with the notion that equity is cabined by law.”

Chief Justice Thomas G. Saylor issued a three-page response that the other five justices joined, disagreeing with Wecht's philosophy regarding waiver.

“In my view, the sua sponte scouring of trial records to identify waiver concerns—when all litigants agree that an important issue is presented that should be resolved by this court—can be disruptive,” he said. “In this regard, I have often commented on the prudential roots of the waiver doctrine, and, from my perspective, its proper application through discerning judgment.”

But those splits, while unusual, were ultimately inconsequential. It was a much deeper divide that led to a decidedly anticlimactic “ending” to one of the most closely-watched cases of the year.

In SCF Consulting v. Barrack, Rodos & Bacine, a case that once appeared to hold the potential to clear up the murky ethics of business arrangements between lawyers and nonlawyers, a majority of the high court could agree on only one thing: fee-splitting arrangements between lawyers and nonlawyers are not per se unenforceable just because they violate attorney ethics rules.

But beyond that, the six-member court—Mundy recused because of her participation on the lower court panel—was unable to reach a consensus in the case. The larger questions of how best to deter unscrupulous lawyers from entering into unethical agreements and what responsibility, if any, nonlawyers have to avoid such agreements remain without definitive answers.

The overall effect of the Dec. 19 decision was to reverse a ruling by a split three-judge panel of the state Superior Court, which held that a consultant to Philadelphia securities litigation firm Barrack, Rodos & Bacine was not entitled to an allegedly promised cut of the firm's profits from cases he worked on because that type of fee-splitting agreement violates Rule 5.4 of the Pennsylvania Rules of Professional Conduct.

The high court remanded the case to the Philadelphia trial court to determine whether this particular agreement is enforceable. But, as Saylor wrote in the opinion announcing the judgment of the court, the trial court now “will be in a position of making its own judgment as to the relevance of any wrongful conduct on [the nonlawyer party's] part, without present guidance from this court.”

2017's Biggest Rulings

While the current lineup of the Supreme Court still appears to be in the process of coalescing, it nevertheless managed to issue quite a few blockbuster rulings in 2017.

Chief among those was the court's hotly anticipated decision in Protz v. Workers' Compensation Appeal Board (Derry Area School District), invalidating the state Workers' Compensation Act's automatic adoption of “the most ­recent ­edition” of the American Medical Association Impairment Rating Guide.

The justices in Protz ruled 6-1 to invalidate Section 306(a.2) of the Workers' Compensation Act, which required doctors performing impairment rating evaluations to rely on “the most recent edition” of the AMA guidelines, finding that it unconstitutionally delegated the legislature's lawmaking authority to the AMA.

Shortly after that decision came down, the Pennsylvania Bureau of Workers' Compensation issued a statement saying that, “effective immediately, [it] will no longer designate physicians to perform impairment rating evaluations.”

Coming in a close second to Protz in terms of the buzz it created among lawyers was the Supreme Court's June decision in Shinal v. Toms, holding that only a physician—not a member of the physician's staff—can obtain informed consent from a patient prior to a medical procedure.

The court ruled 4-3 to grant a new trial to plaintiff Megan Shinal, who underwent brain surgery performed by defendant Dr. Steven A. Toms, the chief of neurosurgery at Geisinger Clinic in Danville, and suffered a perforated carotid artery.

The majority reversed a Superior Court ruling that had found no error in a Montour County trial judge's instruction to the jury that, in determining whether Toms obtained informed consent, it could consider any information communicated to Shinal by any qualified person acting as Toms' assistant.

In April, the justices held in Villani v. Seibert that the Dragonetti Act is not unconstitutional as applied to attorneys. Had the court gone the other way, the decision could have ended several high-profile litigation matters.

In another decision with potentially wide-reaching impact, the court ruled Aug. 22 in Hanaway v. The Parkesburg Group that the implied covenant of good faith and fair dealing does not apply to limited partnership agreements entered into or allegedly breached before November 2016, when Pennsylvania's Revised Uniform Limited Partnership Act was amended to specifically include it.

And just before Thanksgiving, the justices upheld the removal of suspended Philadelphia Court of Common Pleas Judge Angeles Roca and suspended Philadelphia Municipal Court Judge Dawn Segal from office for engaging in ex parte contact with former Municipal Court Judge Joseph C. Waters Jr.

In the process, the high court ruled that the Court of Judicial Discipline has no duty to base sanctions on previous decisions in similar cases.

Other Notable Decisions

In July, the court unanimously held that criminal defendants do not need to prove a reasonable expectation of privacy in order to suppress evidence collected by police in an illegal search. In Commonwealth v. Shabezz, the justices found that evidence gathered from a seizure deemed to be illegal is barred outright as “fruit of the poisonous tree.”

Also in July, the court ruled 6-1 that a warrantless blood draw from an unconscious DUI suspect is improper—but the justices had more difficulty reaching a consensus on exactly why that is.

Four justices in Commonwealth v. Myers—Wecht, who penned the lead opinion, Donohue and Justices Kevin M. Dougherty and Debra Todd—agreed that the implied consent statute, 75 Pa.C.S. Section 1547, does not permit a warrantless blood draw from an unconscious DUI suspect because such a suspect cannot exercise his or her right to refuse the test, which is an essential element of the statute.

Three others—Saylor, Baer and Mundy—disagreed, arguing that implied consent is given by anyone who 
voluntarily operates a vehicle in Pennsylvania, regardless of whether they have an opportunity to revoke that consent.

In September, the court ruled in Rancosky v. Washington National Insurance that plaintiffs do not need to provide 
so-called “smoking gun” evidence of ill will to bring bad-faith claims against insurance carriers.

And in November, the court ruled in Dubose v. Quinlan that the statute of limitations in survival actions can be extended until two years after death and held in the aforementioned Erie Insurance Exchange v. Bristol case that the statute of limitations begins to run on an uninsured motorist claim when an alleged breach of a contractual duty takes place.