Tambellini, J. v. Erie Insurance Exchange ( 2021 )

J-A09010-21
2021 PA Super 158HTR RESTAURANTS, INC. D/B/A/ : IN THE SUPERIOR COURT OF
SIEBS PUB, INDIVIDUALLY AND ON : PENNSYLVANIA
BEHALF OF A CLASS OF SIMILARLY :
SITUATED PERSONS, 3382 BABCOCK :
BOULEVARD, PITTSBURGH, PA :
15327 :
:
v. :
:
ERIE INSURANCE EXCHANGE, 100 :
ERIE INSURANCE PLACE, ERIE, PA :
16530 :
:
Appellant : No. 902 WDA 2020
Appeal from the Order Entered July 24, 2020
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): No. GD-20-006901
JOSEPH TAMBELLINI, INC. D/B/A : IN THE SUPERIOR COURT OF
JOSEPH TAMBELLINI RESTAURANT, : PENNSYLVANIA
5701 BRYANT STREET, PITTSBURGH, :
PA 15206 :
:
v. :
:
ERIE INSURANCE EXCHANGE, 100 :
ERIE INSURANCE PLACE, ERIE, PA :
16530 :
:
Appellant : No. 903 WDA 2020
Appeal from the Order Entered July 24, 2020
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-20-005137
J-A09010-21
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
CONCURRING OPINION BY KUNSELMAN, J.: FILED: AUGUST 10, 2021
I join the majority’s analysis on the first three issues. However, because
we decided to remand this case for further development of the record based
upon the third issue, I believe our appellate review of this matter should end
at that point. Therefore, I do not join the majority’s analysis on the fourth,
fifth, and sixth issues and express no opinion on them.
Erie Insurance Exchange’s third issue prompts us to vacate the
appealed-from order and, as such, fully disposes of this appeal. I believe the
cardinal principle of judicial restraint — i.e., if it is not necessary to decide
more, it is necessary not to decide more — counsels us to go no further. See
PDK Labs, Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
concurring in part and concurring in judgment). By ignoring this principle, the
learned majority offers mere dicta on issues four, five, and six.
“No court . . . is obliged to treat a dictum of another court (or, for that
matter, its own dicta) as binding precedent.” Maloney v. Valley Med.
Facilities, Inc., 984 A.2d 478, 490 (Pa. 2009). Hence, the advisory opinions
regarding issues four, five, and six in the Majority Opinion, supra, Slip Opinion
at 18-22, ___ A.3d ___, ____ (Pa. Super. 2021), bind neither the trial court
on remand nor this Court in any future appeal.
In response to my view that they gave three advisory opinions of dicta,
my learned colleagues offer no reasoning for why I am incorrect in this
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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observation. See Majority Opinion at 21 n.3, ___ A.3d at ____ n.3. Instead,
they say that the final three issues are preserved, fully briefed, and “bear
directly on the [trial] court’s overarching interpretive error in assigning class-
action characteristics to Rule 213.1 . . . .” Id. I agree. But, even though the
final three issues were, at one time, ripe for appellate review does not mean
that they remain so into perpetuity. After we decided that the order at bar
must be vacated and the case remanded due to the third issue, the final three
issues became moot. Once we disposed of and negated the appealed-from
order, nothing remained for us to adjudge.
The Majority’s current decision on the final three issues is advisory only.
At best, it is judicial dictum. As Judge Pellegrini has said, “‘Judicial dictum’ is
an opinion by a court on a question that is directly involved, briefed, and
argued by counsel, and even passed on by the court, but that is not essential
to the decision. Dicta has no precedential value.” Valley Twp. v. City of
Coatesville, 894 A.2d 885, 889 (Pa. Cmwlth. 2006) (some quotations
omitted) (emphasis added).
Although not binding, I do not assert that “the trial court and this Court
should ignore” that dictum. Majority Opinion at 21 n.3, ___ A.3d ___, ____
n.3 (Pa. Super. 2021) (emphasis added). Upon remand, the parties will
further develop the record and present new arguments. Then, the trial court
will render a new order on whether the pending lawsuits should be coordinated
in Allegheny County and, if so, whether someone should be named as lead co-
counsel for the plaintiffs. If the trial court finds the reasoning of my learned
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colleagues to be persuasive, it may adopt their rationale as its own. Therefore,
I disagree with my colleagues that, on remand, their advisory opinions carry
“dispositive weight in a lower court.” Majority Opinion at 21 n.3, ___ A.3d at
____ n.3.
To the contrary, I believe that the trial court and this Court (in future
appeals) are free to reject the Majority’s rationale as unpersuasive dictum. As
for myself, I express no opinion on the merits of those issues.
I therefore concur in part and concur in the result.
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