Late last year, in Tincher v. Omega Flex, No. 17 MAP 2013, a case currently pending in the Pennsylvania Supreme Court, an experienced amicus curiae party, the Pennsylvania Association for Justice, filed one of the most extraordinary applications for relief I have ever seen.
Moving after the oral argument in Tincher had already taken place, the PAJ sought to have the case reargued—and to conduct the reargument on behalf of the plaintiff-appellee—despite having no standing other than as an amicus curiae. This remarkable motion featured a frontal attack on the litigation position taken by the party that the PAJ ostensibly supported—complete with allegations of double-crossing and conflict of interest. However, even the PAJ had to admit there was no precedent for an amicus party to proceed in this fashion, writing that "counsel recognizes that there exists no precedent for reargument by amicus curiae after the original oral argument." Even though Tincher's counsel declined to respond, the PAJ's motion was swiftly denied by the court.
These recent events in the Tincher case bring to the fore the limited role of amici in appellate proceedings. The historical role of appellate amici curiae has never extended beyond issues properly raised, preserved and argued by the parties. An amicus lacks standing to proceed independently of a party, as in Schor v. Becker, 263 A.2d 324, 326 (Pa. 1970). "It is not the office of an amicus curiae to become prosecutor to put into shape objections ... in the absence of objection by some party in interest," the court held in In re Stitzel's Estate, 70 A. 749, 750 (Pa. 1908).
In Commonwealth v. Cotto, 708 A.2d 806, 808 n.2 (Pa. Super. 1998), the Superior Court emphasized: "An amicus curiae is not a party and cannot assume the functions of a party. He has no control over the litigation and no right to institute any proceedings therein; he must accept the case before the court with the issues made by the parties."
In affirming, the Supreme Court in Commonwealth v. Cotto, 753 A.2d 217, 224 n.6 (Pa. 2000), agreed that "an amicus curiae is not a party and cannot raise issues that have not been preserved by the parties." Thus, an amicus curiae "has no right to institute any proceedings" during an appeal, as the court held in Mid-Atlantic Power Supply Association v. Pennsylvania Public Utility Commission, 746 A.2d 1196, 1200 (Pa. Cmwlth. 2000).
For these reasons, Pennsylvania appellate courts do not consider arguments raised by amici that "are outside the scope of [a] limited appeal," as the court held in Harsh v. Petroll, 887 A.2d 209, 216 n.16 (Pa. 2005). The appellate rule governing amicus curiae participation only allows amici to address "the questions involved" in an appeal. This rule ensures that the orderly prosecution of appeals is not disrupted by amicus-driven tangents.
One such example is Butler v. Rolling Hill Hospital, 555 A.2d 205, 207 (Pa. Super. 1989), where the court refused to consider amici curiae's novel unconstitutionality argument not advanced by the parties, inter alia, because the attorney general had not been notified, as parties must do under Pa. R.A.P. 521, when a statute's constitutionality is challenged.
Another example is Cathcart v. Keene Industrial Insulation, 471 A.2d 493, 509 (Pa. Super. 1984), which declined to entertain amicus arguments that improperly raised interlocutory issues relating to denial of summary judgment.
Nor may an amicus curiae successfully make arguments—even if also raised by a party—where the party had waived such issues at an earlier stage of the litigation. "It is settled that an amicus 'cannot raise issues that have not been preserved by the parties,'" the court held in Alliance Home of Carlisle, Pa. v. Board of Assessment Appeals, 919 A.2d 206, 221 n. 8 (Pa. 2007). Amicus parties are limited to issues "preserved or raised by the parties themselves," as the court held in Commonwealth v. Allshouse, 36 A.3d 163, 179 n.18 (Pa. 2012). Appellate courts "will not permit [an] amicus curiae to raise issues which the petitioner himself is barred from raising by failing to argue them below," the court held in Seidman v. Insurance Commissioner, 532 A.2d 917, 920 (Pa. Cmwlth. 1987). Similarly, the court in Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003), declined to consider a preemption argument raised by an amicus curiae that "was not advanced in appellants' summary judgment motion."
Among the practical problems that this rule avoids is reliance by amici on non-record materials. The court in Temple University Hospital v. Healthcare Management Alternatives, 764 A.2d 587, 595 (Pa. Super. 2000), pointed out that an amicus' argument relied on non-record materials that were "not presented to the trial court." The only exception to waiver is where an amicus challenges subject-matter jurisdiction, which cannot be waived and can be raised sua sponte by courts, as in In re Petition of Bell, 152 A.2d 731, 734 (Pa. 1959), and Housing Authority v. Van Osdol, 40 A.3d 209, 213 n.5 (Pa. Cmwlth. 2012).
Conversely, parties to an action are not allowed to adopt arguments raised solely by amici. In In re Petition to Reapportion School Director Regions, 688 A.2d 1275, 1281 n.14 (Pa. Cmwlth. 1997), a party's "attempt ... in a footnote to incorporate by reference arguments raised only by the amicus curiae," was held ineffective to avoid waiver, where the party had neither included those arguments in its statement of questions presented or argued them in its brief. Allowing parties essentially to delegate issues to amici would raise many opportunities for sharp practice, from evasion of length limits for briefs to interfering with opposing parties' ability to respond to such arguments in a timely manner.
Other issues of amicus etiquette arise less frequently. Ordinarily, amici curiae only file a single brief, but can an amicus party file a reply brief? The answer appears to be yes—and no. The issue arose in White v. Conestoga Title Insurance, 982 A.2d 997 (Pa. Super. 2009), which was affirmed and reversed on other grounds, 53 A.3d 720 (Pa. 2012), where a party moved to strike an opposing amicus' reply brief as beyond what Rule 531(a) permitted. The court rejected the contention that Rule 531 "allows for only one amicus brief."
Rather, "Although Rule 531 governs the participation of amicus curiae, it does not reference the submission of reply briefs by an individual or entity not a party to the proceeding. ... The language of Rule 531 merely permits amicus curiae to file a single brief without leave from the court; it does not specifically foreclose amicus curiae from submitting a reply brief altogether."
Nonetheless, the motion to strike was granted, because a reply brief by an amicus party requires leave of court, which was never sought.
The court continued: "We conclude that the [amicus] reply brief must be stricken based on the strict application of Rule 2113(c) ... which states that only appellants may file a reply brief as a matter of right and provides that further briefs may be filed only with leave from the court. As the [amicus] neither sought nor received leave from this court ... prior to submitting his reply brief, we must therefore grant [the] application to strike the reply brief of amicus curiae."
Parties other than amicus curiae should keep Rule 2113 in mind should they wish to reply to arguments raised in an amicus filing. The court in Lausch v. UCBR, 679 A.2d 1385, 1390 (Pa. Cmwlth.1996), struck a reply brief addressing the arguments of an opposing amicus because the reply was filed without leave of court under Rule 2113(d)). However, where leave of court has been granted for a party to file a reply brief, that party's amici have also been allowed to file replies without separately seeking leave, as in Commonwealth v. Knox, 50 A.3d 749, 761 (Pa. Super. 2012), appeal granted, 68 A.3d 323 (Pa. 2013).
Another aspect of amicus etiquette is only filing when permitted. Generally, amicus procedure in Pennsylvania is less restrictive than elsewhere. Leave of court is not required of amici to appear under Rule 531(a). The preparation and filing of amicus briefs is identical to those of the parties that amici support, both as to timing and word count. However, Rule 531(a) specifically excepts petitions for allowance of appeal to the Supreme Court as appellate proceedings concerning which amicus filings are not permitted. Thus, would-be amici curiae are well advised to refrain from filing in support of or in opposition to such petitions.
Recently, even when leave has been sought, the court has usually not been willing to entertain such filings.
In Butler v. Warren, 41 A.3d 854 (Pa. 2012), the court granted review and denied leave for amicus filing. In General Refractories v. Insurance Co. of North America, 930 A.2d 1249 (Pa. 2007), the court denied leave to submit an amicus curiae brief in support of a petition for review. In Miller & Son Paving v. Board of Supervisors, 690 A.2d 711 (Pa. 1997), the court granted review and denied leave for amicus filing. But in Devlin v. City of Philadelphia, 833 A.2d 1115 (Pa. 2003), the court granted both review and leave for amicus filing.
Finally, amici curiae in cases involving large records that are being conducted pursuant to deferred record and briefing procedures should familiarize themselves with the 2011 amendment that added Pa. R.A.P. 531(a)(2). Replacing prior informal procedures, this new rule specifies that amicus filings in large-record cases must be made at the same time that the parties they support are obligated to file their advance-text briefs, whether or not amici actually utilize advance-text citations to the record. This amendment eliminated the opportunities for sandbagging opposing parties previously presented by a system that allowed amici to refrain from filing their briefs until the large-record procedure's later deadline for filing of definitive briefs.
Reprinted with permission from the June 17, 2014 edition of The Legal Intelligencer © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.