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August 2007 will be noted as one of the worst months in the history of Pennsylvania’s state judicial system. During that month, as this newspaper has thoroughly reported, a commissioned judge serving on the Superior Court of Pennsylvania was indicted on federal fraud charges and thereafter immediately suspended from service on that court.

Soon thereafter, the judge in question announced that he was abandoning his campaign to be retained for another 10-year term on the bench in the November general election, meaning that the judge’s tenure on the Superior Court will conclude at the end of this year.

Sadly, when people look back on this episode years from now, whether the judge was ultimately found guilty or innocent of the federal charges probably won’t matter all that much, because, either way, as a result of this unfortunate episode Pennsylvania’s very busy intermediate appellate court will have lost an experienced and well-regarded jurist.

If anything fortunate has followed from this untoward series of events, it is that the suspended judge’s announcement that he was abandoning his efforts to obtain another 10-year term in this fall’s retention election came early enough to allow a successor to be chosen in that same election. As a result, a new commissioned judge, who will replace the suspended and now departing judge, will join the Superior Court in January.

Nevertheless, the current judge’s unexpected suspension and impending departure from the bench will assuredly have a great impact on many cases now pending before the Superior Court. The judge in question had already sat on six oral argument panels in 2007, the two most recent of which occurred in the months of June and July. Undoubtedly, many of the cases argued before those two most recent three-judge panels remain to be decided.

On Aug. 22, The Legal Intelligencer reported that the state Supreme Court had on Aug. 21 assigned a senior common pleas court judge based in Erie to the Superior Court to fill in for the suspended Superior Court judge until January, when a duly elected replacement judge will join the court. Unfortunately, it is far from clear what this newly assigned senior common pleas court judge is expected to do on the Superior Court between now and the end of this year.

As of now, the Superior Court’s web site does not show this newly assigned common pleas court judge as participating in any of the oral argument panels scheduled to hear cases between now and the end of this year. Nor would it make much sense to assign him to hear any oral arguments during that period because it would be all but unheard of for a Superior Court oral argument panel that sat in September or thereafter to announce decisions in all assigned cases before the end of the calendar year.

The article this newspaper published on Aug. 22 also quoted the Superior Court’s president judge as stating that cases that had been previously argued before three-judge panels that included the now-suspended judge would be resolved by the remaining two judges as a quorum. That makes perfect sense for those cases in which the remaining two judges on the panel were in agreement as to the disposition of the appeals. In any cases where the remaining two judges were not in agreement, the Superior Court would need to assign a new judge, and presumably that new judge would benefit from hearing oral argument because those cases appear to involve difficult issues.

Thus, according to the Superior Court’s president judge, the newly assigned senior common pleas court judge is not going to be assigned as a third judge onto any of the appellate panels where the suspended judge sat in which decisions remain to be issued. That strikes me as the correct position. It would be all but unheard of for an appellate judge to participate in an appeal where the judge joined the court after both oral argument and the judges’ initial conference at which a tentative result was reached. That new judge would then be getting involved in cases at a time when the outcome of most of the cases was fait accompli because in those cases the remaining two judges originally on the panel have already agreed to a disposition.

To summarize, the senior common pleas court judge whom the Supreme Court in late August appointed to the Superior Court to replace the suspended judge won’t be hearing any oral arguments for the remainder of this year, and he won’t be taking part in the resolution of any of the still-pending cases in which the now-suspended judge was on the three-judge panel.

This, of course, raises an important question: Other than for the sake of appearing to have a Superior Court that remains at full judicial capacity, why did the Supreme Court take the unusual step of appointing an interim replacement for the suspended judge for a relatively brief four month period between now and the end of this year? Thus far, no answer to that question is readily apparent.

HOWARD J. BASHMAN operates an appellate litigation boutique in Willow Grove, Pa. and can be reached by telephone at 215-830-1458 and via email at [email protected] com. You can access his appellate Web log at http://howappealing.law.com/ .

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