                              [J-12-2019][M.O. - Donohue, J.]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                     MIDDLE DISTRICT


BETTY L. SHIFLETT AND CURTIS                    :   No. 43 MAP 2018
SHIFLETT, HUSBAND AND WIFE,                     :
                                                :   Appeal from the Order of the Superior
                       Appellants               :   Court at No. 2293 EDA 2016 dated
                                                :   11/9/17, reconsideration denied
                                                :   1/12/18, vacating the judgment entered
                  v.                            :   on 7/18/16 of the Lehigh County Court
                                                :   of Common Pleas, Civil Division, at No.
                                                :   2014-C-0388 and remanding for a new
LEHIGH VALLEY HEALTH NETWORK,                   :   trial
INC.; AND LEHIGH VALLEY HOSPITAL,               :
                                                    ARGUED: April 9, 2019
                       Appellees


                                    DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                      DECIDED: September 26, 2019


       I respectfully dissent, since I would affirm the Superior Court’s decision to

remand for a fresh damages assessment.

       The general rule, as pertained in most courts and still does in many today, is that

when a jury returns a general verdict on multiple theories of liability, one of which is later

found to be invalid, the verdict must be reversed and a new trial ordered. See, e.g.,

United N.Y. & N.J. Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 619, 79 S. Ct.

517, 520 (1959); see also Chowdhury v. Worldtel Bangladesh Holding, Ltd., 746 F.3d

42, 50 (2d Cir. 2014) (collecting cases).1 The reason is that the appellate courts lack the


1 Confusingly, albeit that this common law principle is referred to as the “general verdict
rule,” some courts employ the same terminology to describe modified and contrary
approaches. See Plains Commerce Bank v. Long Family Land and Cattle Co., 910 F.
(continued…)
ability to determine whether, or to what extent, the verdict was premised on the invalid

theory. As the jurisprudence has evolved, however, many courts have “engrafted a . . .

harmless error gloss onto that basic principle.” Id. (quoting Muth v. Ford Motor Co., 461

F.3d 557, 564 (5th Cir. 2006)).

      This Court’s decision in Halper v. Jewish Family & Children’s Service of Greater

Philadelphia, 600 Pa. 145, 963 A.2d 1282 (2009), appears to me to reflect a relatively

strong variant of the harmless error approach. As the majority explains, Halper adopted

the view that a general verdict can be sustained, even though one theory upon which

the jury may have relied is unsupported by the evidence, when there is sufficient

evidence to support another theory. See id. at 156-57, 963 A.2d at 1288-89; accord

Nimetz v. Cappadona, 596 A.2d 603, 611 (D.C. Ct. App. 1991) (Farrell, J., concurring)

(“[T]here is no unfairness in assuming that juries rest their conclusions on theories

founded in the evidence.”). Notably, however, some courts have been circumspect

about assuming that errors are harmless without a more probing analysis. See, e.g.,

Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 30 (1st Cir. 2004) (“The reality is that

the degree of confidence that the jury picked a theory with adequate evidentiary support

varies along a spectrum of situations.”); see also Mueller v. Hubbard Milling Co., 573

F.2d 1029, 1039 (8th Cir. 1978) (couching the appropriate test as entailing an

assessment of whether the appellate court is “fairly convinced that the jury proceeded

on the only sound ground”).

      Presently, from my perspective at least, the majority converts the strong

harmless error rule of Halper into an even more potent waiver precept. Although some


(…continued)
Supp. 2d 1188, 1195 (D.S.D. 2012) (discussing the inconsistent use of the terminology).
For clarification, the waiver precept presently adopted by the majority is referred to by
many courts as the “two issue rule.” See id.


                          [J-12-2019][M.O. – Donohue, J.] - 2
other courts proceed in the same fashion, see, e.g., Todd v. S.C. Farm Bur. Mut. Ins.

Co., 336 S.E.2d 472, 473-74 (S.C. 1985), this appears to be a minority approach (albeit

that of a sizable minority). See generally Plains Commerce Bank, 910 F. Supp. 2d at

1195 (collecting cases).    More importantly, there are material policy considerations

associated with requiring litigants to structure verdict forms in a fashion that anticipates

partial reversals on appeal. See, e.g., Gillespie, 386 F.3d at 31 (explaining that “[i]n

some cases special verdicts make sense but there may be others where using them, to

a sufficient level of detail, is infeasible or otherwise undesirable”); Plains Commerce

Bank, 910 F. Supp. 2d at 1195-96 (reasoning that the “’two issue’ approach seems best

suited for instances where the error in submission of one claim to a jury was harmless

error that would not have affected a jury’s general damage award and not for instances

where the minds of the jurors would need to be plumbed to determine whether a

general damage award would have been the same.”). Although the majority’s approach

plainly promotes judicial efficiency, I have reservations about a per se rule faulting

litigants for failing to make sometimes intricate predictive judgments about potential

verdicts in multi-claim cases and to incorporate these into their proposals for special

verdict forms. Cf. Gillespie, 386 F.3d at 31 (“[E]ither side in this case could have asked

for the special verdict to further break down the [various theories]; [t]he issue is one of

policy, i.e., whether the court should create a rule that forfeits claims by an appellant

that could have been isolated if either side had requested a better breakdown.”).

       Ultimately, I do not support the expansion of the Halper precept absent a more

probing analysis of the range of fairness considerations. Moreover, any decision along

these lines should, in my view, be prospective so that the rule is not imposed on litigants

without clear advance notice.       Accord Newman Dev. Grp. of Pottstown, LLC v.

Genuardi's Family Markets, Inc., 617 Pa. 265, 288, 52 A.3d 1233, 1247 (2012) (“To


                           [J-12-2019][M.O. – Donohue, J.] - 3
warrant the heavy consequence of waiver, in a rules schemata designed to ‘secure the

just, speedy and inexpensive determination’ of disputes, the applicability of the Rule

should be apparent upon its face or, failing that, in clear decisional law construing the

Rule.” (quoting Pa.R.C.P. No. 126)).




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