While the most crippling blow to the Pennsylvania Supreme Court may have been the indictment of Justice Joan Orie Melvin on political corruption charges — leaving the court at less than full strength and exposing it to the potential for even divisions — the most far-reaching event of 2012 was much more incremental.

That event was the emergence of Justice Thomas G. Saylor, currently the senior associate justice, as an intellectual leader of the Supreme Court.

Previously thought of as "the loneliest justice" for his penchant for issuing solo concurrences or dissents, Saylor saw himself writing more lead opinions for the court than ever. As of December 28, Saylor had written the lead opinion in 18 cases — more lead opinions than he wrote in 2011, when he wrote 14, 2010, when he wrote 16, and 2009, when he wrote 11.

The numerical increase doesn’t tell the full story, though, as many of Saylor’s opinions set the tone for the court on some of the thorniest issues it encountered.

Part of that may be a function of experience, as the senior justice in the majority has first dibs on authoring the opinion for a majority he or she is part of. Whenever the chief justice is not part of the majority, in other words, Saylor may choose to write the opinion himself.

But it may also be a sign that the one-time iconoclast has moved toward the center of the high court, not a bad place to be if he steps up, as he presumably will upon the retirement of Chief Justice Ronald D. Castille.

Castille’s main challenge in 2012, which will carry into 2013 and the foreseeable future, was to pilot a six-justice court that may be less able than usual to settle questions of law.


The most closely watched of those legal questions is whether the doctrine of strict liability in products cases will be significantly altered by adopting the Restatement (Third) of Torts, which would allow defendants to point to misuse of products by people who claim they’ve been injured by the products.

It’s an issue on which the state Supreme Court has been like the Delphic oracle, offering little concrete guidance while its true leanings have often been speculated upon.

Since 2009, the U.S. Court of Appeals for the Third Circuit has predicted more often than not that Pennsylvania would move from the Restatement (Second) view of strict products liability to the modified view contained in the Restatement (Third), which includes a prominent opportunity for the consideration of the plaintiff’s use of the allegedly defective product. In the minority was U.S. District Judge John E. Jones of the Middle District of Pennsylvania, who ruled in July that the old Restatement (Second) would likely remain the law of the state. But his decision in Sikkelee v. Precision Airmotive was reversed by a Third Circuit panel just three months later, reaffirming the circuit’s view that the newer Restatement (Third) would be adopted by the high court.

As of now, though, the state Supreme Court does not seem to be pursuing with any haste an opportunity to decide the issue once and for all. And even if it does take up such a case in the near future, there is no guarantee the court could produce a majority on the issue.


In May, Orie Melvin was charged with using her Superior Court staff to perform political duties as she sought election to the state Supreme Court. A grand jury report said she used Superior Court personnel and equipment to perform tasks necessary to her failed 2003 campaign and successful 2009 campaign for the Supreme Court. Orie Melvin has denied the charges and promised a vigorous defense.

She became the first sitting justice to face criminal charges since Justice Rolf R. Larsen was tried for using his court staff to secure prescription drugs.

However, while Orie Melvin was quickly suspended from the bench pending the outcome of the case against her, she continued to receive her salary.

As for the public, the main implication of Orie Melvin’s suspension is the reduction of the Supreme Court from seven to six members.

The danger presented by the court’s reduction in size is the possibility that a court may split 3-3, allowing a lower court opinion to stand but leaving the justices incapable of announcing a rule of law.


Saylor’s journey from the edge of the court’s dialogue to the center is comparable in some ways to that of Justice John Paul Stevens on the U.S. Supreme Court, whose nickname was the "lone ranger" for his frequent forays into theories not embraced by his colleagues. In his last 15 years on the U.S. Supreme Court, Stevens became one of the most influential justices, particularly among the court’s liberals.

While Saylor can’t be classified as a liberal, he can be classified as more influential than ever.

In January 2012, Saylor decided that even though the Philadelphia Parking Authority is a state agency, it did not have to promulgate rules governing taxi service in the city of Philadelphia with the assistance of the state Legislative Research Service under the Commonwealth Documents Law. In Germantown Cab v. Philadelphia Parking Authority, the justice reasoned that the PPA’s "unique local focus" meant it did not have to go through the same procedures as other regulatory agencies.

In one of the most important decisions of the court’s year, Saylor discussed asbestos liability and the qualification for an expert opinion.

In May’s Betz v. Pneumo Abex opinion, Saylor wrote for the court to reject a plaintiff’s theory that "each and every breath" taken of asbestos fiber contributes substantially to asbestos-related diseases such as mesothelioma. In so holding, Saylor said that an expert opinion stating just that would not withstand analysis under the Frye standard and could not be presented to a jury.

Saylor said it would not be viable for the court to "indulge in a fiction" that any exposure, no matter how minimal, could be a substantial factor in causing an asbestos-related disease.

Saylor’s September opinion in Basile v. H&R Block brought to a close a long-running class action by ruling that a proposed class of hundreds of thousands of tax filers serviced by H&R Block could not use a class action to press claims that they were misled by the tax preparer’s "Rapid Refund" program, which in reality was a short-term loan that had to be repaid upon the filer’s receipt of a federal tax refund.

Saylor reasoned that plaintiffs counsel’s assertion that H&R Block customers were "overmastered" in their acceptance of the terms of the "Rapid Refund" program could not be litigated in the class action because the customers were so different in their level of education, business sophistication, rural or urban residence and other factors.


Two of the most intensely political issues a court can face — voting rights and redistricting — were the subject of legal battles before the Supreme Court in 2012, and promise to return in the new year.

The eyes of the nation converged on the state Supreme Court when, in September, it reversed a decision by Commonwealth Court Judge Robert Simpson and remanded the controversial voter ID law to him, expressing concern that the state would not be able to administrate the new requirement in a way that would not be suppressive of the vote in the state. While refusing to strike down the measure, which was defended by the Corbett administration as a reasonable response to the threat of voting fraud, the justices’ decision made it all but impossible for the law’s central provision to be enforced at the November 6 general election.

A four-justice majority in a per curiam opinion called on Simpson to examine more closely whether the state had taken adequate steps — for example, providing no-cost alternatives to common forms of ID such as drivers’ licenses — to make sure the ID law wouldn’t have the effect of disenfranchising lawful voters. And it gave him two weeks to do it.

The majority included Castille, Saylor and Justices J. Michael Eakin and Max Baer. Dissents were offered by Justices Seamus P. McCaffery and Debra Todd, who wanted the high court to issue an injunction to invalidate the voter ID law.

On remand, Simpson said there was not enough time to properly implement the law’s central requirement, delaying its impact for a future election. But this is an issue the justices are almost certain to see again, as the Commonwealth Court has scheduled hearings on enforcement of the requirement this summer.

The high court also made the unprecedented move of rejecting maps drawn by the state Legislative Reapportionment Commission, forcing the 2012 election to be conducted along lines drawn by a previous commission more than a decade ago.

In a 4-3 decision, it was Castille who wrote for the majority, saying the petitioners seeking to throw out the maps had made a "concrete showing" that the commission’s plan ran contrary to law, demonstrating the commission split counties, municipalities and wards when it was not "absolutely necessary."

Per the court’s mandate, the commission submitted a new set of maps, but not without similar challenges being made to the justices, who have yet to decide upon the second round of appeals.

Ben Present of the Legal staff contributed to this report.

Michael Riccardi can be contacted at 215-557-2319 or mriccardi@alm.com. Follow him on Twitter @MRiccardiTLI. •