                                   [J-45-2017]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


ERIE INSURANCE EXCHANGE                         :   No. 124 MAP 2016
                                                :
                                                :   Appeal from the Order of the Superior
                                                :   Court dated 5/27/16 at No. 1119 EDA
              v.                                :   2015 which affirmed the order of the
                                                :   Court of Common Pleas of Montgomery
                                                :   County, Civil Division, dated 3/20/15 at
MICHAEL BRISTOL AND RCC, INC.                   :   No. 2013-12947
                                                :
APPEAL OF: MICHAEL BRISTOL                      :   ARGUED: May 10, 2017




                               CONCURRING STATEMENT


CHIEF JUSTICE SAYLOR                                                 FILED: May 24, 2017


       I write in response to Justice Wecht’s dissenting statement, which chides the

Court for amending an original grant order to conform with the precise wording

presented by the appellant in the first instance, and for purportedly accepting review of

a waived issue.

       First of all, this Court’s original grant order restyling the statement of the question

presented was not a limited one – rather, the issue was merely and expressly

“rephrased for clarity.” Erie Ins. Exch. v. Bristol, No. 439 MAL 2016, 2016 WL 7475709

(Pa. Dec. 29, 2016) (per curiam). In joining that order, I, for one, had no intention of

limiting a pivotal substantive question out of the case. Accordingly, I regard the Court’s

present action not as some extraordinary “retroactive expan[sion],” Dissenting

Statement at 1, but rather, as an appropriate correction which, importantly, conforms

entirely with the briefs submitted to this Court by the litigants.
      Second, as to the waiver concern, running throughout Appellant Bristol’s

submissions in the common pleas and intermediate courts is the assertion that “Erie’s

claim that this matter is barred by the applicable statute of limitations is without merit

because, by agreeing to resolve this matter through arbitration, there was no need for

and no legal or contractual requirement that Michael Bristol file a Complaint, Petition to

Compel Arbitration or any other pleading.” Defendant’s Motion for Summary Judgement

in Erie Ins. Exch. v. Bristol, No. 2013-12947 (C.P. Montgomery), at 6-7 (emphasis

added).1 Although it would have been best for Appellant to forthrightly indicate in the

common pleas court that he understood that the court was bound by prevailing Superior

Court precedent concerning the timing of the commencement of the limitations period,

but that he wished nevertheless to preserve a challenge for purposes of potential

appellate review, I believe that his arguments have been phrased broadly enough to

substantively subsume the commencement issue.

      Significantly, moreover, nowhere in Appellee’s present brief does the company

contend that the commencement issue is waived. Indeed, Appellee repeatedly invites

this Court to review the issue and to institutionalize the prevailing Superior Court

precedent on the subject.    See, e.g., Brief for Appellee at 27 (“[T]his Court should

uphold the Hopkins rule that provides a sensible and easy to establish time for the


1
  The dissent’s assertion that the case substantively was always and entirely about
equitable tolling overlooks Appellant’s contention -- also advanced in the petition for
allowance of appeal -- that there was no legal requirement to act in the first instance.
See Petition for Allowance of Appeal at 11 (contending that “the event that triggers a
party’s obligation to seek judicial intervention, i.e., the refusal to arbitrate, never
occurred here”); see also id. at 12 (“By agreeing to resolve this matter through
arbitration, there was no need for and no legal or contractual requirement that
[Appellant] file a Complaint, Petition to Compel Arbitration, or any other pleading.”). In
the absence of an underlying legal requirement to affirmatively preserve a cause of
action, there is no predicate for equity to intervene, and nothing to be tolled.


                                     [J-45-2017] - 2
statute of limitations to begin to run.”). In my view, the sua sponte scouring of trial

records to identify waiver concerns -- when all litigants agree that an important issue is

presented that should be resolved by this Court -- can be disruptive. In this regard, I

have often commented on the prudential roots of the waiver doctrine, and, from my

perspective, its proper application through discerning judgment.

      Finally, attempting to decide a tolling question in the absence of a settled

understanding as to when the applicable limitations period commences is fraught with

difficulties. For instance, it may be that the Court would find tolling appropriate only if

the statute runs from the date of injury, as the intermediate-court precedent holds.

Tolling, in this regard, could be viewed as compensation for an underlying approach to

commencement with which the Court disagrees. Were the Court to proceed on such a

basis, it would issue a decision having application only within an underlying framework

of the Superior Court’s design, which could later be rejected by this Court.           Our

decision, of course, would need to be carefully crafted with all the necessary disclaimers

to avoid adoption of a regime that this Court has never previously addressed.

      I see no reason that such abstractions need to come into play here. Rather, I

regard the Court’s present amendatory order as an appropriate one.



      Justices Baer, Todd, Donohue, Dougherty and Mundy join this concurring

statement.




                                     [J-45-2017] - 3
