The Pennsylvania Superior Court has elected Judge John T. Bender as its acting president judge. He will take over for former President Judge Correale F. Stevens, who joined the state Supreme Court on July 30.
While Bender is currently only scheduled to serve in the role until the court reconvenes on January 6 of next year to elect a president judge to a full five-year term, a spokesman for the Administrative Office of Pennsylvania Courts said there is no rule on the books that precludes Bender from being re-elected.
Under Rule 706 of the Pennsylvania Rules of Judicial Procedure, president judges are prohibited from serving consecutive full terms. However, there is nothing barring an acting president judge from being elected to a full term.
The court is, however, constrained under Rule 701 to wait until the first Monday of 2014 to select its next full-term president judge.
Under Rule 701, whenever the president judge position is vacated between February 1 of an odd-numbered year and the first Monday of the following January, the court cannot hold a meeting to select its next full-term president judge before noon on that Monday.
Pursuant to Rule 701, Stevens handed the reins to Judge Kate Ford Elliott, who has been on the court since 1989 and therefore has seniority, upon his exit at the end of July, from which point Ford Elliott had 30 days to call for an election to pick a president judge to serve out the remainder of the year.
AOPC spokesman Art Heinz told the Law Weekly that Bender was unanimously elected, adding that there is no procedural rule keeping Bender out of the running in the January election.
Though Stevens' term was set to expire in 2016, the next five-year term will run until 2019.
But for now, Bender is set to lead the court through the end of 2013 and appellate lawyers across the state said he's a good fit for the role from both a leadership and administrative perspective.
Robert L. Byer, head of the appellate division at Duane Morris in Pittsburgh, said he knows Bender "very well," having first met him when they were both young lawyers.
Byer and Bender now work alongside each other on the state Supreme Court's Appellate Court Procedural Rules Committee.
Byer said Bender, who was elected to the Superior Court in 2001 and won retention in 2011, has a "great institutional sense" and described him as a hard worker who always stays current on his caseload.
According to Byer, Bender will likely be tasked with administrative duties including presiding over court conferences and en banc sessions.
John J. Hare, chair of the appellate advocacy and post-trial practice group at Marshall Dennehey Warner Coleman & Goggin in Philadelphia, said Bender has a reputation for being "a very nice guy" and is unlikely to take a dictatorial approach to the role of president judge.
Instead, Hare said he anticipates Bender will work closely with the central legal staff and law clerks, who do much of the "heavy lifting" in terms of court administration.
Hare said Bender maintains a down-to-earth approachability on the bench, as well. And while both Hare and Byer described Bender as one of the more vocal judges on the bench during oral arguments, both said he's respectful of the attorneys arguing before him and tends to ask insightful questions.
"He's probably one of the quickest judges on that court in terms of getting to the practical or pragmatic aspects of a legal problem," Byer said.
Bender has led the majority in a number of high-profile cases over the past year, several of which are currently pending before the state Supreme Court.
For example, the justices granted allocatur in Commonwealth v. Lyles in June, agreeing to hear a case over whether an officer's request for a man's identification turned the underlying encounter from a "mere encounter" into an "investigative detention."
The Superior Court, led by Bender, had reversed a Philadelphia Court of Common Pleas judge's order granting a motion to suppress the evidence filed by defendant Haleem Lyles, finding no reasonable suspicion existed to request his identification.
Bender, who wrote for the split 2-1 panel, reasoned that if the interaction had risen to the level of investigative detention, the trial court would have rightfully suppressed the evidence as "fruit of the poisonous tree" because it made the finding that the police officer did not have reasonable suspicion to suspect that criminal activity was going on at the time.
If the interaction turned out to be a "mere encounter," however, then allegations of Lyles' surreptitious movements related to his pocket would have justified the limited search for weapons that turned up the alleged drugs in the case and rendered the evidence admissible, Bender said.
In Commonwealth v. Walter, another case currently awaiting a Supreme Court ruling, Bender, writing for a three-judge Superior Court panel in an unpublished memorandum, found that disqualification under Pennsylvania Rule of Evidence 601(b), which requires a child witness be disqualified if he or she is too immature, rendered inadmissible out-of-court statements made pursuant to the state's Tender Years Act, which allows for the admission of out-of-court statements of a child witness as hearsay evidence.
"The Tender Years Act cannot grant license for the introduction of hearsay statements as reliable evidence when the witness who originally made them is so unreliable as to be disqualified from testifying," Bender wrote.
The justices granted allocatur in Walter in July 2012 to hear arguments over whether a young girl's out-of-court statements under the Tender Years Act were properly admitted in her father's child-rape case when the girl had previously been determined incompetent to testify.
On the civil side, Bender led a three-judge panel in Passarello v. Grumbine, finding that medical malpractice defendants may not rely on an "error in judgment" defense at trial.
Bender retroactively applied the Superior Court's 2009 ruling in Pringle v. Rapaport, which banned the "error in judgment" defense in medical malpractice cases.
"In this instance, we find no impediment to retroactive application of the holding in Pringle," Bender said. "In that case, this court, sitting en banc, explored the history of the error in judgment rule and precluded its continued use in Pennsylvania on the basis of its inconsistency with the 'standard of care' analysis on which liability in professional negligence cases depends."
The Supreme Court granted allocatur in Passarello in May 2012.
Bender has also taken a strong dissenting stance in a few recent cases, including Milliken v. Jacono, in which the Supreme Court granted allocatur in July, agreeing to hear arguments over whether the seller of a house is required to disclose to potential buyers what the state Superior Court called "psychological damage," such as a murder or suicide that occurred on the property.
While the Superior Court majority ruled 6-3 last December that the state's Real Estate Seller Disclosure Law does not require the disclosure of psychological damage to a home, Bender, joined by Judges Sallie Updyke Mundy and David N. Wecht, dissented.
Bender argued that the financial loss plaintiff Janet S. Milliken suffered when she unwittingly purchased a home in which a murder-suicide had occurred "was entirely avoidable had the sellers from whom she bought her home merely exercised a little more integrity and a little less greed."
"The majority's ruling, which deprives Milliken of any legal remedy, rewards those sellers and short-circuits the legislative intent of the Real Estate Seller Disclosure Law," Bender said. "Not surprisingly, it also truncates the ability of homebuyers across this commonwealth to avoid potentially catastrophic losses in purchasing a home."
Bender did not return a call seeking comment on his new role.