Berks County Bar Association The Berks Barrister Spring 2020 - 38

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Closing Argument

DEARTH OF CIVIL OPINIONS

was frustrated. Okay, I was more than
frustrated, but I prefer avoiding the
use of expletives in this space.
It was the late 1980s, and Judge
Forrest G. Schaeffer, Jr. had granted a
motion for summary judgment against my
clients, following extensive depositions,
briefing the issues and doing oral
arguments. The frustrating part was that
the decision came down as a one-line order
with no explanation.
Given our investment of time and
effort in the litigation, I believed we were
entitled to an opinion setting forth reasons
justifying his decision. My clients and I
were in the dark as to why we were now out
of court. To learn why, we would have to
file an appeal to the Superior Court.
Sometime thereafter, the Berks County
Bar Association was holding its annual
Bench-Bar Conference. During the '80s,
the Conference's concluding session was an
open Bench-Bar Forum, where the judges
were all lined up on the dais, and we threw
questions at them.
At some point during that year's forum,
I stood up and vented: "Judge Schaeffer,
when ruling on a motion for summary
judgment, could you not write an opinion
giving support for your decision or at
least set forth reasons in the order? After
all, when I clerked for Judge W. Richard
Eshelman, in drafting his one-sentence
orders, I mastered the use of the semicolon."
A few chuckles could be heard; to this
day, Fred Mogel gives me an occasional
jab, recalling my claim of possessing
punctuation prowess. Otherwise, my
venting had no lasting impact.
But now, change may be coming.
The Pennsylvania Bar Association's
Civil Litigation Section has proposed
an amendment to Pa.R.C.P. 1035.3 to
require courts to provide reasons for
decisions granting or denying motions
for summary judgment. In support of its
proposal, the Section posits in its report:
"When these important motions are
decided without opinion, the parties are
left without knowledge of what issues
have been decided and how they were

38 | Berks Barrister

By Donald F. Smith, Jr., Esquire
from the bench, one judge replied: "We
only write opinions when there is an
appeal."
In my experience as Judge Eshelman's
law clerk, if an attorney went to the trouble
of briefing an issue and appearing in
argument court-whether on a preliminary
objection, unique discovery matter, various
petitions and motions-reasons were
at least given in the resulting order, but
frequently an opinion was promulgated.
A memorable opinion I drafted for the
conservative Judge Eshelman was one
opening a confessed judgment, in which
I quoted the liberal Justice William O.
Douglas. The Judge adopted the draft,
unedited.
In his 2019 year-end report on the state
of the federal judiciary, Chief Justice John
G. Roberts, Jr. wrote: "When judges render
their judgments through written opinions
that explain their reasoning, they advance
public understanding of the law." What is
true for the federal courts is just as true for
our common pleas courts.
Written opinions not only advance the
clients' understanding but also that of the
attorneys practicing before the judges.
Several years ago, Lebanon County's
Judge Bradford Charles presented a CLE
on electronic discovery in our Bar Building.
He was the first common pleas judge to
have resolved a dispute in this new area of
law; as I recall, his opinion was twelve pages
The Section's recommendation was
long in a $28,000 case.
overwhelmingly approved by the PBA
Introducing him at the seminar, I said
House of Delegates on November 15, 2019;
I was impressed by his lengthy opinion on
thus, it is now PBA policy and lobbying
a discovery issue. He responded: "As a
efforts with the Supreme Court's Civil
former trial attorney, I appreciate that the
Procedural Rules Committee have begun.
I am so pleased that the PBA has taken up trial bar wants to know the thinking of the
judge, giving them guidance."
the cause, proving once again the value of
Only writing opinions when required
the statewide association.
by Rule 1925(a) fails to advance the trial
Is it not a shame, though, that a rule is
bar's understanding or provide guidance
required for a judge to give reasons for her
on handling interlocutory matters. The
or his decision? Unfortunately, the dearth
proposed rule amendment is a start, but
of opinions on civil issues extends beyond
other literary guidance is welcomed.
summary judgment rulings. While I was
Having more civil opinions explaining
BCBA's Executive Director, Law Journal
editors had very few, if any, opinions to pick rulings should reduce the losers' frustration,
and, with greater understanding, a dearth of
for publication that were not criminal or
expletives will result!
family law. When I sought an explanation

decided...While decisions granting
summary judgment can be appealed, which
will require [an opinion] under Pa.R.A.P.
1925(b), the decision to appeal might turn
on the basis for the decision." Bingo! More
than thirty years later, I feel vindicated.
Adding subsection (f ) to Rule 1035.3
is suggested: "A court granting or denying
a motion under this rule shall state the
reasons for its decision in at least a brief
written opinion, written note appended
to an order or orally on the transcribed
record."

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Berks County Bar Association The Berks Barrister Spring 2020

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