White v. Conestoga Title Insurance

Chief Justice CASTILLE,

concurring.

I join the Majority Opinion with the exception of that which I believe to be dicta in footnotes 10 and 11. For the reasons that follow, I respectfully disagree with the Majority’s decision to speak broadly regarding aspects, not implicated or briefed in this appeal, of the nature and application of Section 1504 and the judicial doctrine of administrative exhaustion.

Here, this Court granted review to decide whether:

In reversing the Common Pleas Court’s dismissal of this action for lack of jurisdiction by reason of the administrative remedy provided by the TICA at 40 P.S. § 910-44(b), did the Superior Court err by holding that the statutory and deci-sional rule that adequate administrative remedies are exclusive does not apply to consumer class actions?

White v. Conestoga Title Ins. Co., 606 Pa. 50, 994 A.2d 1083 (2010) (per curiam). The Majority also states that it would address other grounds on which the Superior Court based its decision, see Maj. Op. at 730-31 n. 17, presumably because the Court could affirm on such other grounds. Id. at 727-28 (describing Superior Court’s decision).

The several issues addressed in footnotes 10 and 11, however, are not among the specific bases on which the Superior Court decided the matter and, indeed, are ostensibly outside the grant of allowance of appeal. In footnote 10, the Majority begins by citing appellant’s position that any distinction between the directive of Section 1504 and the judicial doctrine of administrative exhaustion is “immaterial” in this matter. The Majority, without challenging appellant’s view, undertakes a lengthy discussion intended “to clarify” the question of whether such a distinction does or should exist, including in its discussion criticism of an existing case. The Majority describes the interplay between Section 1504 and the judicial doctrine of administrative exhaustion, holds that they are one legal consideration, and lists seemingly settled jurisprudential exceptions to the general rule. See Maj. Op. at 725-26 n. 10. Subsequently, the Majority concludes that appellee — the plaintiff below — has not in her complaint, and does not on appeal, rely on any such exception to argue the inapplicability of Section 1504. Id. at 735-36.

Meanwhile, in footnote 11, the Majority discusses whether Section 1504 is jurisdictional or prudential and collects cases which ascribe to either one or the other view. The Majority suggests that the distinction may be relevant to whether the Court could address the issue sua sponte. Ultimately, however, the Majority concludes that the conflict need not be resolved because appellant preserved the issue for appeal, and fails to offer any other purpose for its observations. Id. at 726-27 n. 11.

*737This Court has suggested that we lack jurisdiction to decide issues outside the scope of the allowance of appeal granted. See Commonwealth v. Jones, 530 Pa. 536, 610 A.2d 439, 440 n. 2 (1992), abrogated on other grounds by Commonwealth v. Deem-er, 550 Pa. 290, 705 A.2d 827 (1997). Strict enforcement of that proposition is perhaps an impossible task, and, in my view, there may be perfectly good reasons for the Court to reach out and offer guidance beyond points actually accepted and briefed. Indeed, it has been my position that “the question of what issues are properly reachable in an appeal is a prudential matter, not an absolute, and it is not surprising that the members of the Court, reasonably and in good faith, may reach different conclusions when presented with a particular factual and legal matrix.” Freed v. Geisinger Med. Ctr., 607 Pa. 225, 5 A.3d 212, 219 (2010) (Castille, C.J., concurring).

Here, inquiries regarding the jurisdictional or jurisprudential nature of Section 1504 and the broader question of exceptions to the exclusive remedy/exhaustion consideration are collateral to the actual dispute. The Majority engages these issues after simply noting appellant’s uncertainty regarding a related question on the interplay between Section 1504 and the judicial doctrine of administrative exhaustion. The Majority offers no insight either into any interest by the parties in pursuing the broader issues it addresses in footnotes 10 and 11, grants the parties no opportunity to brief the relevant points, and does not explain the necessity for the dictum.

In this particular situation, I believe that the perceived necessity for clarification is not sufficient to overcome prudential concerns in addressing points outside the scope of a discretionary appeal. Accord Harsh v. Petroll, 584 Pa. 606, 887 A.2d 209, 216 n. 16 (2005) (“While we acknowledge amicus’s points in these regards and the desirability of additional clarification, the points are outside the scope of this limited appeal.”). The parameters of the exhaustion doctrine (whether statutory or prudential) are of sufficient complexity, and the factual circumstances giving rise to exhaustion issues of sufficient variety, that I would not speak broadly or correc-tively in the area unless in the context of a case where we have a focused issue and targeted advocacy along those lines.

For example, footnote 10 lists the exceptions to Section 1504 in cases where the administrative remedy: “was unable to address the legal issues presented and effectively provide relief to all those in a position to seek it and presented a substantial question of constitutional import or would result in duplicative and piecemeal litigation likely to yield inconsistent results, or would lead to irreparable harm.” Maj. Op. at 726 n. 10 (citing, inter alia, Kowenhoven v. County of Allegheny, 587 Pa. 545, 901 A.2d 1003 (2006)). Derived by the Majority from caselaw, this mere listing does not capture the multifaceted calculus, of which Kowenhoven is illustrative, behind these decisions. In Kowenhoven, the majority decision, which I joined, excused compliance with Section 1504 to address a question of great constitutional importance and avert the need for a multiplicity of duplica-tive lawsuits on the single, controlling legal question presented. However, as á general matter, I would not consider duplicative litigation or, separately, the simple presentation of a constitutional question sufficient grounds to bypass the salutary function of the administrative process. Cf. Elgin v. Dep’t of Treasury, - U.S. -, 132 S.Ct. 2126, 2138, 183 L.Ed.2d 1 (2012) (“[W]e see nothing extraordinary in a statutory scheme that vests renewable factfinding authority in a non-Article III entity that has jurisdiction over an action but cannot finally decide the legal question[,- such as *738the constitutional claim at issue,] to which the facts pertain.”)- Accordingly, I am reticent to draw broad and non-fact specific lines of demarcation regarding instances in which the Court should find an exception to the exhaustion of administrative remedies requirement. I respect that the Majority may intend its comments to be a mere recitation or a compilation of relevant sources of settled law, but they are likely to be advanced by litigants, and cited by lower courts, as broadly deciding various issues that I, for one, believe may warrant deeper consideration.

For these reasons, I join the Majority Opinion subject to this one articulated reservation.

Justice EAKIN joins this opinion.