*1 307 to officials not to their terms technically who were but cloaked on a authority par nevertheless were with with police directly officers that the statute covered. See Common Leet, (1994) 89, 96-97, wealth v. 537 Pa. 641 A.2d 303 (holding deputy enforcing that sheriffs and sheriffs motor to meet the required training requirements vehicle laws were of the former Police Municipal Officers’ Education and Train Act, ing (repealed)). §§ 53 P.S. 741-749.1 I also Accordingly, believe that a demurrer on the appropriate merits judgment relative to the count of the declaratory complaint. Turtzo, Sbrocchi, v. & generally Spry, Stair Faul La barre, (2001) (“[Prelimi 301 nary objections in the nature of a demurrer bemay sustained only cases it is clear free from doubt that the pleaded facts are plaintiff legally insufficient to estab relief.”). right lish a A.2d DISTRICT, Herman, D.C.,
OLD FORGE SCHOOL Lawrence S. Nachas, Inc., Herman, Petty, Jason H. Robert R.G. Ma- sonry, On Behalf Similarly Of Themselves And All Others Situated, Appellants, INC.,
HIGHMARK Blue Cross Blue Shield and d/b/a Shield, Pennsylvania Corpora- Blue a Non-Profit tion, Hospital Pennsylva- Service Association of Northeastern nia, Pennsylvania, Blue Cross of Northeastern Common- d/b/a Pennsylvania, Department wealth of Insurance and Insurance Pennsylvania, Appel- Commissioner of the lees.
Supreme Pennsylvania. Court Sept. 12,
Submitted 2006. June
Decided *2 Kohn, Kohn, Hoese, Esq., Swift Esq., Joseph E. C. William Auerbach, Marcus, P.C., Graf, Esq., M. Jonathan & Jerome Senoff, P.C., Esq., David Samuel Montague, & Esq., Berger Winebrake, Connor, P.C., Esq., Wineb- Peter David Billet & Caroselli, (The), Firm, Esq., William R. L.L.C. rake Law L.L.C., Beachler, Philadel- Caroselli, Conboy, McTiernan & Nachas, Inc., H. Jason Herman, D.C., S. for Lawrence phia, Mason. Petty and R.G. Herman, Robert Stover, Esq., Mentzer Brobson, Jack Esq., Paul Kevin Inc. Highmark, Harrisburg, Ingersoll, Buchanan Insurance, York, Ykema, Department PA Esq., L. Sandra Pennsyl- Department for Insurance vania. SAYLOR, CASTILLE, CAPPY, C.J., and
BEFORE: FITZGERALD, JJ. BAER, EAKIN, BALDWIN OPINION Justice SAYLOR. the Commonwealth the issue whether
This case involves fees attorneys’ in awarding its discretion Court abused Appellants, ground on the (“Highmark”) Inc. Highmark, engaged Highmark, and policyholders are subscribers who seeking actions commencing several conduct in “vexatious” rates and reserves. challenge Highmark’s *3 Department Insurance 3, 2002, the Pennsylvania August On a review it (the beginning announced that was “Department”), maintained and reserve levels surplus the regarding process Plans, Blue Cross including Capital Blue by Pennsylvania As- Service (“CBC”), (“Highmark”), Hospital Highmark, Inc. (“NEPA”), and Inde- of Northeastern sociation (“IBC”). initial of some Upon analysis Blue Cross pendence Plans, concluded Department the Blue submitted data and reserve held substantial collectively Plans that the Blue that there further found The Department amounts. surplus be surplus additional would accumulating a at which was level request- finding, Department Pursuant to this inefficient. of approval applications Blue Plans submit ed that surplus levels. their reserve Diane M. 9, 2005, Insurance Commissioner February
On appli concerning order issued a determination Koken re Applications Plans. See In the Blue cations submitted (Pa. MS05-02-006, al., slip op. et No. Blue Cross Capital 2005). defined The Commissioner Ins. Dep’t term “surplus” as “what a Plan has in capital after all liabili- ties have been deducted from assets.” Id. at 10. She then described three categories efficient, of surplus levels: suffi- cient, and inefficient. The Commissioner explained that if a plan operating with a “sufficient” level of surplus, that plan should not include a premium for a risk and contingency factor in filed rates for the next calendar year. She an- nounced that year CBC, calendar Highmark, NEPA operated within their “sufficient” surplus operating ranges, operated while IBC at an efficient level. Id. at 37. Observing the Department received many public com- ments discussing the possibility rate relief in the form of reductions, rebates or premium the Commissioner noted that retroactive rate relief was not an appropriate method of handling excess surplus:
[Attempting target accumulated surplus one group ratepayers over another is an inherently problematic and potentially inequitable fact, notion. rollback, a rate or a freeze, rate could prove detrimental to the marketplace. observed, however, Id. at 17. She rate forward-looking may relief be appropriate, stating as follows: [W]here Blue Plan has sufficient surplus, forward-looking rate relief would assure that additional surplus is not cumu- latively from premium Thus, derived income. for example, it would be appropriate charge rates that do not include a risk and contingency factor when a Plan has a sufficient level surplus.
Id. at 18.
On March
two petitions for review were filed with
the Commonwealth Court challenging the Commissioner’s or-
der and determination.
City
Philadelphia v. Pennsyl-
*4
vania Ins. Dep’t,
(Pa.Cmwlth.2005).
The
petition
first
by
was filed
a group
composed
three policy-
holders,
subscribers,
four Blue Cross
and fourteen public
interest groups. The second complaint was filed by
City
of Philadelphia based upon its status
an employer
as
pays
who
premiums to Independence Blue Cross.
City
See
Philadel-
phia, 889 A.2d at 668.
submissions,
both
the petitioners
hearing
to an administrative
entitled
they
were
argued
Act, see 40 Pa.C.S.
Corporations
Health Plan
to the
pursuant
discovery as well
conduct
6124(b),
they
in
could
§
officials.
Blue
and
Cross
adverse witnesses
cross-examine
law, the
that,
petitioners
under
court held
The
therefore,
rates;
in their
interest
protected property
had no
to
standing
or
hearing
process
no
due
they
right
had
regarding
made
the Commissioner
findings
Philadelphia,
City
plans.
each of
surplus
held
On In their jurisdiction. original Court’s the Commonwealth on grounded of action asserted causes Appellants complaint, Specifical- theories. unjust enrichment breach of contract and fully did not contended that the Commissioner ly, Appellants approval applications and NEPA’s Highmark’s approve levels, companies that both were as it found surplus their 2003 Relying upon surplus. level of with a “sufficient” operating order, Highmark alleged the Commissioner’s contingency included a risk and NEPA should not have and that the Arguing rates for 2004. in their filed premium factor order 2005 determination Commissioner’s into the contracts between incorporated were Highmark asserted that companies, Appellants these moneys to refund failing of contract NEPA were breach filed factor their contingency risk and any received for addition, Appellants contended for 2004. rates premium any they funds right keep had no companies that the of this factor. As to the inclusion relating received received, they retained all funds that and NEPA enriched at their unjustly companies that the concluded refund relative to sought a remedy, Appellants As a expense. for 2004. in the rates premium factor contingency the risk and attempted pursue unsuccessfully a class petitioners also 1. Several Dep’t, Department. See Insurance in the Insurance action (Pa.Cmwlth.2005). subsequently petitions for al- They A.2d 942 by this MAL which were denied appeal at 698-701 lowance of Court in 2005. *5 312 and NEPA filed
Highmark preliminary objections, in which each them jurisdiction of asserted a lack of matter and failure to statutory exhaust a remedy. addition to those objections, Highmark filed a motion that alleging lacked and NEPA standing requested counsel fees and costs as to all named Appellants other than Forge Old School District for vexatious conduct in commencing the action. See 2503(9) § 42 Pa.C.S. that a (providing party is entitled to an award of counsel fees when “the conduct of another in party commencing the matter or otherwise was arbitrary, vexatious faith”). NEPA, or in bad Unlike request did not at attorneys’ fees that time.
The Commonwealth Court held a on hearing September concerning Highmark’s objec- NEPA’s preliminary tions.2 a memorandum on opinion issued the court objections sustained the Appellants’ dismissed complaint. Forge See Old Sch. Dist. v. M.D. Highmark, 276 (Pa.Cmwlth.Feb. 7, 2006). op. slip The court deter- mined that Appellants, couching argument while their in terms of excess surplus, actually challenging Commission- er’s determination that retroactive rate relief is inappropriate. The court indicated that the proper procedure for contesting the Commissioner’s determination was to appeal the decision pursuant to the Commonwealth appellate jurisdiction. Court’s The court noted that Appellants had previously filed such an see appeal, City Philadelphia, A.2d in which it had held that Appellants did not a protected have property inter- and, therefore, est in their rates did not have standing to appeal findings made the Insurance Commissioner. See id. at 672.3 Connecting lack Appellants’ standing to a lack one, case standing present the court stated the following: [Appellants] lack standing “[I]f to assert their challenge it proceeding where would properly be heard, their standing is not enhanced by it in a bringing 2. While it is evident from the record hearing the court held a concerning preliminary objections, these it is unclear as to whether any argument regarding there attorney’s was NEPA’s motion for City did not seek review Philadelphia this Court's of the decision. Dist., 276 Sch. Forge venue.” Old improper procedurally reasoned that M.D.2005, 10. The court further slip op. if court treated this had standing, if Appellants even an jurisdiction filed in its being appellate action as determination, the still have court would the Commissioner’s on objections Appel the basis the preliminary sustained thirty it filed within as was not complaint untimely, lants’ *6 the Finally, the order. from days the date Commissioner’s fees, reasoning for counsel NEPA’s motion granted court litigation”: in “obdurate and vexatious engaged had Appellants of the [Appel- the third time that most This is at least now premise of the basic had to be reminded herein have lants] part regulatory process are that rates and reserves Commissioner, the and are discretion of under the sound which adversary litigation the not proper assert their inter- may private or groups individual entities of counsel imposition At point, ests. this we believe is litigation appropriate. for and fees obdurate vexatious at 11. Id. an agreement reached subsequently
NEPA Appellants and NEPA not to as to and promised Appellants Appellants. fees and costs from agreed NEPA seek Following Brief at 6. the Commonwealth Appellants for on Feb Appellants’ complaint, Highmark, Court’s dismissal 17, 2006, attorney’s an for fees under ruary application 2503(7) 2503(9) Code, 42 and of the Judicial Pa.C.S. Sections 2503(7), the (9), Appellants exception as to all named with §§ re Specifically, Highmark of Old School District.4 Forge Code, part: provides, Judicial in relevant 4. Section 2503 of the following participants be entitled to a reasonable counsel The shall part the fee as the taxable costs of matter: (7) against Any who counsel as a sanction participant is awarded fees dilatory, conduct dur- participant for obdurate or vexatious another ing pendency of a the matter. (9) the Any who is counsel because conduct participant awarded fees commencing the otherwise was arbi- party in matter or of another traiy, bad vexatious or in faith. (9). 2503(7), §§ 42 Pa.C.S.
quested that court the enter an for attorneys’ award fees for the same it granted reasons as motion NEPA’s in its fees 2006 memorandum order. and Several weeks later, 9, on March Appellants appealed order court’s ***5 dismissing complaint.I. their on March Finally, Commonwealth Court entered an order granting Highmark’s fees, application for incorporating reasoning from its Feb ruary 2006 memorandum and order.6 opinion Court, First, appealed raising this two issues. contend the Commonwealth Court erred granting Highmark’s application Second, attorneys’ Appellants maintain that the Commonwealth Court erred in finding Petty Robert Petty Masonry (collectively R.G. “Petty Appellants”) “jointly severally” liable for attorneys’ (i) fees and expenses incurred by where parties were not underlying to the De- Insurance partment (ii) proceeding against Highmark; the Petty Appel- lants were not to the parties appeal, Court (iii) it pertained Highmark; Petty Appellants have never legal asserted claims or against sought relief from *7 Highmark in or any judicial administrative proceeding.
I.
A. Jurisdiction
matter,
As a threshold
Appellants argue that the Com
monwealth
did not
jurisdiction
Court
have
to award counsel
fees to Highmark because Appellants’ appeal of the court’s
7,
February
2006 order
court
jurisdiction
divested the
of
to
entertain
request.
such a
In this regard, Appellants observe
that under Pennsylvania
1701(a),
Rule of Appellate Procedure
a
jurisdiction
lower court
no
has
to proceed further on a
5.
Appellants’
This Court
the
affirmed
court’s
of
complaint
dismissal
in a
per
Forge
See
Highmark,
curiam order.
Old
Sch. Dist.
(2006).
Supervisors of the (1984), Superior the determined that Court for jurisdiction to entertain motion trial court did not have 2503(9) once an of the appeal fees under Section attorneys’ court action had been taken. The observed underlying fees, attorneys’ namely, in the motion for the issue involved the conduct, not to the vexatious was related action, an of a underlying appeal which concerned whether for the purpose board decision was frivolous and zoning Thus, the held that trial court not have delay. court did jurisdiction counsel id. petition to entertain fees. See at By Appellants argue analogy, are involved in the unrelated underlying issues thus Highmark’s application attorneys’ jurisdic- conclude that the Court did have Commonwealth application. rule on Highmark’s tion to contrast, Highmark argues that court’s award By fees to its attorneys’ “ancillary” award was, therefore, under attorneys’ proper fees to NEPA 1701(b)(1). 1701(b)(1). Highmark Pa.R.A.P. ob- Rule grounds that the for its fee forth application serves set order, Court’s which was *8 1701(a) Pennsylvania Appellate fol- Rule of Procedure indicates as rules, “Except prescribed appeal these after an is lows: otherwise sought, quasijudicial or taken or review of a order is trial court longer government may proceed no further matter.” other unit in the 1701(a). Pa.R.A.P. 316
subject Appellants’ such, this Court. As High- mark asserts that a on ruling application its fee court was, essence, an order the fee expanding award in February Highmark. Further, 2006 to include Highmark contends that the court’s decision to rule on its application permissible as an act designed “clean a matter up” ancillary to the appeal. See Rosenberg Holy Redeemer Hosp., 351 Pa.Su- 399, 410, (1986) per. 506 A.2d (holding the trial properly jurisdiction court exercised its in its denial of several outstanding motions because the court was clearing up mat- ters ancillary appeal). to the Highmark maintains that it appropriately waited until after the Commonwealth Court issued its opinion filing before its application for Brief Appellee (citing 25A Edward K. Esping, et (West 2006)) § 2d 127:53 al., Standard Practice (stating fees, that a “claim for attorney’s such as one based on vexatious, the arbitrary, or bad-faith conduct of another party, ... should be raised the conclusion of action, the underlying using record and history of the action support claim”).
While both Appellants and Highmark focus their arguments on whether a motion for attorneys’ fees should be encom- passed among exceptions 1701(b), listed Rule we con- clude that the inquiry relevant is whether a motion for fees a separate 1701(a). constitutes “matter” purposes of Rule 1701(a) that, See Pa.R.A.P. (providing “the trial court ... may ” no longer proceed further in the matter once an appeal has added)). been taken (emphasis case, In the present Commonwealth Court issued an order sustaining Highmark preliminary objections and dismissing Appellants’ complaint. This decision constituted a final order to appeal. See Gasbarini’s Estate v. Inc., Med. Center Beaver County, (1979) Pa. that, (observing “[a]s rule, general objections where preliminary are sustained and a dismissed, complaint is the order sustaining the preliminary objections and dismissing the complaint is final and appeal- able”). order, appealed the court’s thus triggering 1701(a). Rule As a result of the appeal, the
317 concerning order dismiss- no further its proceed Court could ing complaint. Appellants’ timely motion Highmark filed a Appellants’ appeal,
Prior to for attor- Highmark’s for motion attorneys’ We view from the court’s order neys’ separate a “matter” fees as such, As the Common- dismissing complaint. Appellants’ Highmark’s not from deciding precluded wealth Court was 1701(a). motion of Highmark’s motion under Rule Treatment is this fees as a matter attorneys’ separate supported Electric v. DeW- Company recent decision in Miller Court’s (2006). Electric, eese, 907 A.2d 1051 Miller this denied its garnishee concluded that a that was Court 2503(3) attorney’s fees under Section could entitlement denial, regardless of the date of thirty days within mat- judgment underlying when the final was entered Electric, ter. Miller Pa. at A.2d at 1057. See 589 907 The reasoned fees under attorney’s Court that a motion to, from, underly- 2503 is separate Section connected but ing regard, action. In this the motion for fees was attorney’s entered in the disposed judgment when final was id., matter. A.2d at underlying Applying case, reasoning present Highmark’s Miller Electric to the that attorneys’ separate motion for fees constitutes matter was properly addressed the Commonwealth Court while matter underlying appeal. was on 2503(9)
B. “Vexatious” under Section Conduct Turning Appellants’ that the argument Court abused its that by determining Appellants’ discretion “vexatious,” conduct was first assert that the court Appellants any support failed to cite or case statutory provision law Moreover, its analysis decision. that court’s they observe of this issue is one contains no merely paragraph, which Noting discussion of the moved for record. 2503(7) 2503(9), both main- fees under Sections Appellants 2503(7) tain High- that Section is not relevant here because Appellants “dilatory, mark has not asserted that engaged during obdurate or vexatious conduct of a pendency 2503(7). § regard, matter.” See Pa.C.S. this objec- this case dismissed on preliminary observe Instead, 2503(9), argue tions. only Section action, to a an applies party’s decision commence is at here, issue but maintain that their conduct did not violate this provision. “vexatious,”
In order to find that a lawsuit’s initiation was 1) note that separate findings two must be made: *10 the suit filed in ground was without sufficient either law or in 2) fact; and the suit served the sole purpose causing Brief for 14 annoyance. Appellants (citing Thunberg Strause, (1996)). 682 A.2d 299 Concern- ing the first prong, Appellants they assert that advanced a legitimate legal in theory they sought to challenge Highmark’s inclusion of a contingency risk and factor in its 2004 filed rates on the basis of the February Commissioner’s 9, 2005 determination. Appellants challenge also the Com- monwealth Court’s decision to grant upon previous fees based by Instead, suits filed Appellant against Highmark. Appel- suggest lants that all of their actions good faith efforts to enforce obligations created under Pennsylvania by law and/or the Pennsylvania Insurance Department. Appellants note that premise” court, the “basic referred to by namely, the that “rates and reserves are of a part regulatory process under the Commissioner, sound discretion the and are not the proper was, time, of adversary litigation,” at the being consid- in ered this Court our of the review Commonwealth Court Cross, decision in v. Independence Ciamaichelo Blue (Pa.Cmwlth.2002). Moreover, that Appellants assert each of the suits they brought against the Blue Plans separate was and distinct. In action, Ciamaichelo, the first Appellants sought remedy, alia, Highmark’s inter violation of alleged Pennsylvania’s Law, Non-Profit Highmark’s as well as claimed breach of action, contract and breach of In fiduciary duty. the second Petty, Appellants that explain they brought similar claims in Insurance Department on their belief that Department forum appropriate for such com- action, Philadelphia, Appellants City third a plaints. Court assert- in the Commonwealth a for review petition De- February that the Insurance Commissioner’s ing constitutionally upon based and Order was termination action, School Forge fourth Old Finally, in a process. infirm District, suit in the Commonwealth brought inclusion Highmark’s jurisdiction challenging original Court’s rates on the 2004 filed factor its contingency of a risk and 9, 2005 of a of the Commissioner’s portion basis Determination and Order. consideration, Appellants argue Thunberg’s second
As and the court has made alleged, has not purpose the sole their suits served any findings, Instead, that their maintain causing annoyance. the Insurance sparked public prompted actions interest regu- reviewing to become more involved Department Spe- maintained the Blue Plans. lating surplus levels brought that their actions about cifically, Appellants suggest decision, to hold hear- September Commissioner’s concerning surplus the Blue Plans’ reserve levels. ings Pennsyl- connection these note hearings, with Phyllis Mundy highlighted vania State Representative *11 in interest in a impact Appellants’ generating public suits letter addressed to the Insurance Commissioner:
[Tjhere issue, a interest in this which public is substantial a brought through has been to the attention series public’s by of class action and sub- brought policyholders lawsuits Plans in the respective Pennsylvania scribers of the Blue Lackawanna, of Common Pleas of Bucks York Courts Counties. Koken, to M. Diane dated Phyllis Mundy
See Letter of Hon. 23, 2002, August http://www.insurance.state.pa.us/ available at addition, bchearing/comments/b cJmd_0017.pdf. in a triggering assert that their actions instrumental “Agreement that to an on Commu- dialogue unprecedented led Blue Pennsylvania Health Reinvestment” between the nity the Blue Department, required Plans and the Insurance of the their income percentage Plans to commit a certain received from health and in premiums connection with Medi- premiums care and Medicaid to fund social programs. See Reinvestment, Agreement Community on Health dated Febru- 2005).8 ary 35 Pa. Bull. (July contrast, Highmark, by argues did not in granting Court abuse its discretion its fee applica- tion because Appellants litigators” ig- are “serial who have previous nored the court’s See Brief for at rulings. Appellees 17. asserts that all of suits a Highmark Appellants’ have “to force “single alleged goal,” namely, the Blue Plans to disgorge allegedly surplus excessive reserves derived from allegedly Appellee excessive rates.” See Brief for at 9. Highmark previous notes that the the Common- rulings wealth reflect the current state of the right Court law on the private litigants police and enforce the insurance laws this Commonwealth. further contends that order, matter, in the present Commonwealth Court’s supported by the record. appears
As the Commonwealth Court
to have based its
decision on the various
our
by Appellants,
actions
deci
sion here is to remand
for that
this issue
court
reevaluate
its
light
decision
this Court’s recent decision Ciamai
Cross,
chelo v. Independence Blue
matic because the court did not articulate its
ac-
reasoning
cording to the two-prong test for vexatious conduct set forth
in Thunberg. Specifically, the court made no findings as to
the second prong of Thunberg, namely, whether “the suit
served the sole purpose of causing annoyance.”
Thun-
berg,
II. The Petty Appellants Appellants next argue that the Commonwealth Court erred in finding Robert Masonry R.G. Petty (collectively the “Petty Appellants”) “jointly and severally” liable for attor- neys’ fees and expenses incurred Highmark. Appellants contend that the Petty Appellants should not be included the court’s fee award because their class action complaint that, makes clear NEPA, as subscribers and policyholders of they did not any assert against Instead, claims Highmark. the Petty Appellants only sought relief from NEPA and the Insurance Commissioner. In this regard, Appellants observe that their complaint defined two discrete subclasses of plain- tiffs:
(a) the class all policyholders and subscribers of Defen- dant Highmark improperly charged a risk and contingency factor in their filed premium rates for any 2004 or other year. Excluded from the classes [Highmark], are its affili- ates, interest, subsidiaries and predecessors in and all offi- cers or employees of any such entity; and (b) the class of all policyholders and subscribers of Defen- dant NEPA charged a risk and contingency factor in their premium rates for 2004 any or other year. Excluded from [NEPA], affiliates, class are its subsidiaries and predecessors interest, and all officers of employees any such entity. *13 ¶ Further, in complaint, at 41. their Complaint
Class Action Petty R.G. “contracts with Appellants Appellant assert that for its coverage NEPA to health insurance [Appellee] provide ¶ Id. at that Lastly, Appellants 11. maintain employees.” of is Petty, Petty, Robert the sole R.G. Appellant proprietor Petty’s to group policy. insured NEPA as a subscriber R.G. by ¶ id. at 12. Thus, that See Appellants argue Petty Appel the incurred More Highmark. lants cannot be liable fees over, that the to argue require Petty Appellants Appellants not the Highmark purpose fees to does further pay attorneys’ fees, the frivolous and filing of counsel which is to deter of lawsuits, Petty Appellants the did improper otherwise because first instance. See the not file suit in any against Highmark Strause, Thunberg Brief for at 25 Appellants (citing at 300 that (observing Judicial Code “[t]he of fees in an to curb the permits attorneys’ attempt the award improperly brought laws filing frivolous otherwise uits”)).9 Petty
Highmark argues Appellants properly fee the Petty Appellants included in the court’s While award. any against Highmark, Highmark did not file direct claims contends are that has they part “plaintiff group” actions the Blue Plans the Com- against despite serial decisions, which have held that previous monwealth Court’s main- improper. regard, Highmark such lawsuits are this Petty Appellants tains that the are not newcomers to these filing should be accountable proceedings and held Appellants. the lawsuit as the other It would be for this Court consider the issue premature attorneys’ is entitled to against whether fees findings absent factual the Common- 2503(7) 2503(9). wealth Court pursuant Sections Forge Appellant note that Old School District had participated any litigation against Highmark prior in to the action underlying appeal. They why that this was the reason this surmise attorneys’ Commonwealth Court did not include them its award of Brief for at 24 n. 7.
III. Conclusion The is vacated matter Commonwealth Court’s order and the is remanded to court for reevaluation its decision light of set forth in this reasoning opinion. Jurisdiction is relinquished. opinion.
Justice BAER files a concurring BAER, Justice concurring. decision of Miller v. I recent
Although dissented our *14 DeWeese, (2006) (Baer, dissent- J. ing), partici- fractured decision of our Court with only five I pating justices, join the Majority opinion full based on stare decisis. While I am prior bound follow this Court’s precedent, piecemeal I continue to believe that is not litigation good public policy and should be disfavored.
925A.2d 115 Jr., SALLEY, Appellant Will CORP.; Group; ONE OPTION MORTGAGE CIT Trustee; Trust; John Doe John Doe 1-100, Appellees. John Does #’S Supreme Pennsylvania. Court of
Argued Sept. 2006. 31,May Decided