                            [J-96-2019] [OAJC: Todd, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


    COMMONWEALTH OF PENNSYLVANIA,                 :   No. 25 MAP 2019
                                                  :
                      Appellee                    :   Appeal from the Order of Superior
                                                  :   Court at No. 1893 MDA 2017 dated
                                                  :   August 31, 2018 Affirming the Order
               v.                                 :   dated October 26, 2017, filed
                                                  :   October 31, 2017, of the Lycoming
                                                  :   County Court of Common Pleas,
    TODD DANIEL HOOVER,                           :   Criminal Division, at No. CP-41-CR-
                                                  :   2120-2012
                      Appellant                   :
                                                  :   ARGUED: November 19, 2019


                      CONCURRING AND DISSENTING OPINION


JUSTICE BAER                                                    DECIDED: May 19, 2020

        While I agree with most of the Opinion Announcing the Judgment of the Court

(OAJC)’s thoughts regarding the propriety of the trial court’s vacation of its prior order

granting a petition for early termination of a sentence of intermediate punishment, I

respectfully disagree with its ultimate decision to reverse the Superior Court on a basis

that was never raised or argued by the Appellant in this case. Accordingly, I concur in

part of the OAJC’s decision and dissent in part, as I would affirm the Superior Court’s

decision, as discussed below.

        I agree with the OAJC that pursuant to 42 Pa.C.S. § 5505, the trial court had the

authority to vacate its prior order where, as here, the court’s order was not appealed, the

court acted within 30 days of the entry of the order, and the court provided notice to the

parties of its intent to rescind its prior order.1 OAJC at 8. I also agree with the OAJC that

1       Section 5505 provides:
the trial court was not limited to rescinding its order for patent errors, as this limitation

applies only to a court correcting an order outside of the 30-day window set forth in

Section 5505. See OAJC at 9-10 (citing Commonwealth v. Holmes, 933 A.2d 57 (Pa.

2007), and its consolidated companion case, Commonwealth v. Whitfield, for the

proposition that jurisdiction to correct errors outside of the 30-day period prescribed by

Section 5505 by a trial court is limited to patent errors).

       Next, the OAJC properly rejects Appellant’s argument that the trial court could not

vacate its prior order pursuant to Section 5505 based on facts not of record at the time it

granted early termination of Appellant’s intermediate sentence on the basis of the

Superior Court’s decisions in M.P. v. M.P., 54 A.3d 950 (Pa. Super. 2012) (holding that

the trial court abused its discretion in denying mother’s custody petition seeking

permission to travel with her daughter based on the court’s own internet research

conducted subsequent to the custody hearing) and Eck v. Eck, 475 A.2d 825 (Pa. Super.

1984) (holding that the trial court, in reversing a hearing master’s award of alimony,

abused its discretion by considering facts and evidence not of record)).

       Specifically, the OAJC observes that in M.P. and Eck, the trial court orders were

reversed because the orders were based on the consideration of evidence outside of the

record to which the parties had no notice of, or opportunity to respond. The OAJC notes,

“[I]n the instant case, Appellant had notice of the basis for the trial court’s modification of

its prior order, and, indeed, had the opportunity to respond at a hearing.” OAJC at 10.




       Except as otherwise provided or prescribed by law, a court upon notice to
       the parties may modify or rescind any order within 30 days after its entry,
       notwithstanding the prior termination of any term of court, if no appeal from
       such order has been taken or allowed.

42 Pa.C.S. §5505.
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Thus, the OAJC properly finds M.P. and Eck distinguishable from the circumstances

presented in this case.

       Accordingly, I agree with the OAJC’s conclusions and analysis of the foregoing

matters, which consist of the totality of the arguments made by Appellant in his brief to

this Court. See Appellant’s Brief at 12-17. The OAJC, nevertheless, proceeds to address

another basis for reversal of the trial court’s order, as affirmed by the Superior Court.

Analogizing to probation revocation, the OAJC holds that because the trial court failed to

condition its grant of Appellant’s petition for early termination upon express future

conduct, the court’s act of vacating its prior order based upon such future conduct

deprived Appellant of his liberty interest without due process. OAJC at 14.

       This basis for reversal of the lower courts’ decisions, however, is outside the scope

of this appeal as it was not presented, and therefore necessarily not preserved by

Appellant. The OAJC, instead, sua sponte, analogizes the circumstances of this case to

probation revocation and posits that, like probation revocation, a person must be given a

fair warning of acts that could lead to a loss of liberty. The OAJC justifies its analysis in

this regard by concluding that if it were to uphold the trial court’s vacation of its prior order

granting Appellant’s petition for early termination based on his subsequent DUI offense,

this Court would be sanctioning a construction of Section 5505 that would violate due

process, which, in the OAJC’s view, we must avoid. OAJC at 12.

       While the OAJC’s arguments in favor of reversal of the lower courts’ decisions may

or may not withstand careful scrutiny, it is a settled principle of appellate review that courts

should not reach claims that were not raised below. Commonwealth v. Colavita 933 A.2d

874, 891 (Pa. 2010). Likewise, “courts generally should not act sua sponte to raise claims

or theories that the parties either did not raise below or failed to raise in their appellate

pleadings.” Id. “This Court has consistently held that an appellate court cannot reverse


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a trial court judgment on a basis that was not properly raised and preserved by the

parties.” Id. (citing Steiner v. Markel, 968 A.2d 1253, 1256 (2009) (citing Danville Area

Sch. Dist. v. Danville Area Educ. Ass'n, 754 A.2d 1255, 1259 (2000)). The rule is no

different in the constitutional context. Id.

       Here, as noted, Appellant has never contended that the trial court erred in vacating

its prior order granting him early termination of his sentence of intermediate punishment

because doing so is analogous to probation revocation, which, pursuant to due process,

requires notice of conditions that will result in revocation. Importantly, absent Appellant’s

advocacy on this point, there is no counter-argument provided by the Commonwealth to

the OAJC’s determination.

       While the OAJC’s position may have some superficial appeal if it was raised, it

would seem more applicable to a case involving a final order permitting early termination

where the court attempted to revoke its grant after the 30-day period for reconsideration

without having provided notice of conditions therefore. Here, we are examining a court’s

authority to modify its order prior to the order becoming final; a circumstance where courts

generally have broad discretion to make adjustments so long as the parties are provided

notice that the order may be modified as was done in this case. See OAJC at 10 (noting

that “Appellant had notice of the basis for the trial court’s modification of its prior order,

and, indeed, had the opportunity to respond at a hearing”; see also Moore v. Moore, 634

A.2d 163, 167 (Pa. 1993) (acknowledging that “a trial court always has the authority to

reconsider its own judgment and that the question of whether or not to exercise that

authority is left to the sound discretion of the trial court”); Stockton v. Stockton, 698 A.2d

1334, 1337 (Pa. Super. 1997) (observing that 42 Pa.C.S. § 5505 gives a trial court broad

discretion to consider a motion for reconsideration if the motion is filed within thirty days

of the entry of the disputed order); Hayward v. Hayward, 808 A.2d 232, 235 (Pa. Super.


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2002) (explaining that the lower court's authority under 42 Pa.C.S. § 5505 to modify or

rescind an order is almost entirely discretionary; this power may be exercised sua sponte,

or may be invoked by a request for reconsideration filed by the parties).

       For these reasons, I would conclude that, based on the arguments presented to

this Court, Appellant has failed to demonstrate that the trial court abused its discretion

pursuant to Section 5505 when it vacated its prior order granting Appellant early

termination from intermediate punishment.        Accordingly, I would affirm the Superior

Court’s judgment affirming the trial court’s order.

       Chief Justice Saylor and Justice Mundy join this concurring and dissenting opinion.




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