James M. Beck of Reed Smith.

All lawyers, including appellate lawyers, rely on law books. Whether or not we still actually flip pages, we all use them to research questions of law and procedure. We are only human, and that goes for legal authors and editors, as it does for the rest of us. So what happens to us—us being appellate lawyers—when the book is wrong? The answer appears to be that we, the lawyers, are out of luck.

The seriousness of this issue was underscored recently in the unreported Superior Court decision, Beltz v. Ethicon Women's Health & Urology, No. 2138 EDA 2017, 2018 WL 6715736 (Pa. Super. Dec. 21, 2018) (memorandum). In Beltz, a Philadelphia jury awarded almost $2.5 million for claimed medical device-related injuries, after (among other things) the trial court allowed a strict liability claim in direct contravention of Superior Court precedent, see Creazzo v. Medtronic, 903 A.2d 24, 31 (Pa. Super. 2006).

But the defendant in Beltz was never able to raise any claim of error, because it filed its appeal too late. The verdict in Beltz was recorded in open court on May 26, docketed on May 31, but post-trial motions were not docketed until June 12. 2018. Under Pa. R.A.P. 227.1(c), the deadline for filing such motions was 10 days—but 10 days from what?

A law book every Pennsylvania lawyer knows, Standard Pennsylvania Practice, stated: “Post-trial motions must be filed within 10 days after the verdict … An untimely post-trial motion waives appellate arguments where the trial court refuses to address the merits of the issues raised … The 10-day period for filing post-trial motions begins running when the order of the court is entered on the docket, thus placing it on the record, and not when the order is announced by the court.

Unfortunately, the treatise's last sentence was incorrect. Rule 227.1(c)(1) runs the 10-day period from the “verdict,” at least as interpreted by the Superior Court. The rule “does not expressly require entry of the verdict upon the docket before the 10-day period begins to run, and we will not judicially amend the rule to include such a requirement,” see Mammoccio v. 1818 Market Partnership, 734 A.2d 23, 27 (Pa. Super. 1999), vacated, 744 A.2d 265 (Pa. 2000).

This error in Standard Pennsylvania Practice was insufficient to require the trial court to exercise its discretion to invoke the “liberal construction” exception of Pa. R. Civ. P. 126. First, the treatise was only a “secondary source.” “Defendants should have referred to the rule and distinguishing case law when developing their post-trial strategy, rather than merely relying on a secondary source.” Further, the publisher's disclaimer “cautioned the readers”:

This publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional …  Thomson Reuters is not providing legal advice by providing this product.

“Defendants should have taken notice that Standard Pennsylvania Practice is not controlling authority based on the legal notices.”

So—particularly if one is representing corporate defendants in Philadelphia products liability litigation—Beltz demonstrates that Pennsylvania courts are not inclined to cut counsel a break over an error in a “secondary source” treatise.

But what happens when the statute book, itself, is wrong?

In In re Appeal of Tenet HealthSystems Bucks County, 880 A.2d 721 (Pa. Commw. 2005), the appellant sought a nunc pro tunc appeal because “the statute governing the appeal was incorrectly published in Purdon's Statutes.” As it appeared in Purdon's, the relevant statute read that appeals shall be filed “on or before the first day of September.” The actual statute, however, provided, “on or before the first day of September or the date designated by the county commissioners.” The particular county, of course, had exercised the omitted option, rendering the appeal at issue untimely.

As the author has written previously, “The paradigmatic ground for nunc pro tunc extension of an appellate deadline has always been a 'breakdown in the court's operation,' as held in Union Electric v. Board of Property Assessment, 746 A.2d 581, 583 (Pa. 2000).”  J. Beck, “Relief Nunc Pro Tunc, or Is the Appeal Just Sunk?” Legal Intelligencer (June 4, 2016). The Tenet court rejected the statutory error as grounds for relief, instead finding the appellant at fault because: counsel never looked beyond the one section of the statute; counsel did not consult anyone else, including the relevant administrative board, about the appeal deadline; the correct appeal deadline had been “advertised” in the legal press, including The Legal Intelligencer; and the relevant form for filing an appeal conspicuously stated the correct date.

Moreover, the error in the statute book could not be considered a “breakdown” in judicial machinery. “While Purdon's has been the key to finding statutory law in Pennsylvania, it is not itself positive law.” Notably, this result might have been different had the error occurred in one of the “consolidated” volumes of Purdon's:

Pennsylvania Consolidated Statutes are official codifications that are enacted by the General Assembly.  By contrast, the unofficial codification and annotation of Pennsylvania's Pamphlet Laws, known as Purdon's, is the work product of the West Publishing Company.

Thus, a “Pa. Cons. Stat.” citation “is a citation to positive law in the form of an official code,” whereas a “Pa. Stat.” citation “is merely a citation to an unofficial codification of a private publisher which has no official counterpart.”

“Uninformed users,” the Commonwealth Court observed, “will probably not notice the difference,” a failure that “can be disastrous,” (quoting Clark, “Introduction to the Pennsylvania Consolidated Statutes,” (1995)). Thus, the appellant's “failure to understand that” it was relying on an “unofficial codification” was “a foundational error.” Further, the “argument that Purdon's has, by law or practice, become the official version of statutory law is wrong.” If you, dear reader, were not so “informed” before, now you are.

Nor did Tenet consider an error in a statute book to be an “extraordinary circumstance” justifying a nunc pro tunc order. Counsel “did not read [the section] in its entirety,” since the error created a discrepancy that, “at the very least … should have prompted further inquiry.”  While “it is routine for lawyers in Pennsylvania to rely upon Purdon's, as opposed to the pamphlet laws, … there are times this routine must be broken. Purdon's is not legal evidence of the official version of Pennsylvania's pamphlet laws.”

Thus, in Pennsylvania, appellate practitioners cannot use errors in either legal treatises or even statute books (if uncodified) as an excuse for missing appeal deadlines. While reasonable minds may differ as to whether the results in Beltz and Tenet reflect a realistic view of current professional practice, both decisions were unanimous. Caveat lectorem.

James M. Beck, a member of the Reed Smith life sciences health industry group, focuses his practice on complex personal injury and products liability litigation. He has experience in developing legal defenses, master briefs and dispositive motions in numerous mass torts, and has prepared amicus briefs on behalf of a variety of national organizations.