                            [J-95-2016][M.O. – Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


CITY OF PHILADELPHIA,                           :   No. 26 EAP 2015
                                                :
                   Appellee                     :   Appeal from the Order of the
                                                :   Commonwealth Court entered on
                                                :   12/11/14 at No. 1347 C.D. 2013,
              v.                                :   affirming the order dated 7/9/13 of the
                                                :   Court of Common Pleas, Philadelphia
                                                :   County, Civil Division at No. 2693
                                                :   September term 2009
NATHAN LERNER,                                  :
                                                :   ARGUED: March 8, 2016
                   Appellant                    :   RE-SUBMITTED: August, 17, 2016




                                  DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                      DECIDED: November 22, 2016


       I join Justice Donohue’s dissenting opinion.        To the degree that the majority

premises its disposition upon the doctrine of waiver, I offer the following comments.

       When addressing concerns about issue preservation and presentation, my own

thoughts align with those courts which remain “mindful of the prophylactic and

prudential origins of the doctrine.” Huber v. Taylor, 469 F.3d 67, 75 (3d Cir. 2006). For

example, in the federal judicial system, the doctrine of plain error, as well as

discretionary decision-making authority invested in the courts of appeals, continue to

serve as safety valves to alleviate the potential for injustice.1


1
  See, e.g., Fed. R. Crim. P. 52(b) (providing for consideration of “[a] plain error that
affects substantial rights” even though the error “was not brought to the court’s
attention”); Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct. 2868, 2877 (1976) (“The
(continued…)
       This Court, of course, has moved far away from such prudential roots in the

direction of strict enforcement of waiver, for example, via its abrogation of the plain error

doctrine and curtailment of relaxed waiver in capital litigation.2       In decisional law

referenced by the majority, the Court also converted what, on its face, appeared to be a

discretionary waiver practice pertaining to the filing of statements of matters complained

of on appeal, see Pa.R.A.P. 1925 (superseded) (“A failure to comply with such directive

may be considered by the appellate court as a waiver . . ..” (emphasis added)), into a

mandatory waiver. See Commonwealth v. Hill, 609 Pa. 410, 422, 16 A.3d 484, 491

(2011) (quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998),

for the proposition that “[a]ny issues not raised in a [statement of matters complained of

on appeal] will be deemed waived” (emphasis adjusted)).

       I note, however, that this particular escalation of waiver precepts generated an

outcry from members of the legal community.           The controversy was reflected, for

example, in resolutions submitted to the Court by the Pennsylvania Bar Association, the

Philadelphia Bar Association, and the Allegheny County Bar Association. See, e.g., Pa.



(…continued)
matter of what questions may be taken up and resolved for the first time on appeal is
one left primarily to the discretion of the courts of appeals, to be exercised on the facts
of individual cases[;] . . . [c]ertainly there are circumstances in which a federal appellate
court is justified in resolving an issue not passed on below, as where the proper
resolution is beyond any doubt, or where ‘injustice might otherwise result.’” (citations
omitted)).

2
  See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 260, 322 A.2d 114, 117 (1974)
(abolishing the plain or fundamental error doctrine in civil cases); Commonwealth v.
Clair, 458 Pa. 418, 423, 326 A.2d 272, 274 (1974) (same, for criminal cases);
Commonwealth v. Freeman, 573 Pa. 532, 560, 827 A.2d 385, 402 (2003) (curtaining the
relaxed waiver doctrine in capital direct appeals); Commonwealth v. Albrecht, 554 Pa.
31, 45, 720 A.2d 693, 700 (1998) (abolishing relaxed waiver in capital post-conviction
matters).


                             [J-95-2016][M.O. – Wecht, J.] - 2
Bar Ass’n, Appellate Advocacy Comm. Resolution dated Aug. 22, 2006 (urging the

Court to ameliorate its strict waiver practice relative to the submission of statements of

matters complained of on appeal, given that “merits resolution of disputes is preferable

to waiver and enhances respect for the courts and the law by the parties to the dispute

and society generally”). Ultimately, this Court responded by revising the relevant Rule

of Appellate Procedure to account for special circumstances. See Pa.R.A.P. 1925(c).

      As a general rule, I support the enforcement of waiver constructs as a means to

sharpen controversies and maintain fairness to opposing litigants. I would nevertheless

recognize exceptions for extraordinary circumstances (as pertain, for example, in the

context of Rule of Appellate Procedure 1925, as discussed above). In this regard,

harkening back to earlier decisions of this Court, I would submit, the judiciary should

retain some latitude to disregard waiver where the alternative is to involve the courts in

the enforcement of a fraudulent or sham judgment. See Cochran v. Eldridge, 49 Pa.

365, 370 (Pa. 1865) (“[W]hen it is alleged upon adequate proofs that a judgment . . . has

been obtained by a suppression of truth which it was the duty of the party to disclose or

by the suggestion of a falsehood or by any of the indefinite and therefore undefinable

means by which fraud may be practised, no court will allow itself, its records, and the

process of law to be used as instruments of fraud.”); accord Sherman v. Yiddisher

Kultur Farband, 375 Pa. 108, 120, 99 A.2d 868, 871 (1953) (Musmanno, J., dissenting)

(“Every tribunal in the United States does honor to the venerable rule that courts

possess inherent power to control, amend, open and vacate their decisions according to

circumstance, and especially where vitiated by fraud).

      In the present case, I find the circumstances to be quite extraordinary.       It is

greatly disconcerting, to me at least, that the City of Philadelphia’s Department of

Revenue had or has a practice of issuing fictitious and arbitrary tax assessments,


                            [J-95-2016][M.O. – Wecht, J.] - 3
designed to frighten citizens, that is so common as to have acquired a name: “jeopardy

assessment.”    N.T., June 26, 2013, at 27; see also id. at 43-44 (reflecting the

unrebutted testimony of a revenue collection manager that her supervisor engages in a

practice of “really just mak[ing numbers] up . . . try[ing] to make it real high”).3 There

would appear to be no formal protocol or procedure whereby the resort by Department

personnel to artifice is necessarily confined to purported scofflaws. Apparently, at the

discretion (or whim) of Department personnel, “jeopardy” (or sham) assessments may

be inflicted on the citizenry at large, including those persons who may be lacking in

education and/or resources or are otherwise vulnerable.

       Whether or not the common pleas court should have permitted inquiry into the

Department’s pernicious practices underlying a tax assessment in the context of a

collection proceeding, the present record comes to this Court as it does. At bottom, I

simply do not believe that a court of last resort should in any way permit to be condoned

or validated what appears very clearly, on this record, to be an arbitrary judgment

obtained via such subversive means. To the extent that our refusal to do so would

foster other challenges to tax assessments in Philadelphia, I believe that should be

seen as arising as a consequence of the Department’s own untenable conduct, and not

the appropriate unwillingness of the judiciary to permit it to go unredressed.



       Justices Todd and Donohue join this dissenting opinion.


3
   A true jeopardy assessment is a statutorily-authorized, extraordinary measure
employed by taxing authorities to address exigent circumstances so that an assessment
or collection is not jeopardized by delay. See, e.g., 72 P.S. §7339(a). This contrasts
with the informal conception based on outright contrivance manifested on the present
record, whereby Department personnel simply “put [an arbitrary] figure out into our data
base with the hopes that it will elicit a response from the taxpayer.” N.T., June 26,
2013, at 27.


                            [J-95-2016][M.O. – Wecht, J.] - 4
