[J-95-2016][M.O. – Wecht, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

CITY OF PHILADELPHIA,

Appellee

v.

NATHAN LERNER,

Appellant

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No. 26 EAP 2015

Appeal from the Order of the 

Commonwealth Court entered on 

12/11/14 at No. 1347 C.D. 2013, 

affirming the order dated 7/9/13 of the 

Court of Common Pleas, Philadelphia 

County, Civil Division at No. 2693 

September term 2009

ARGUED: March 8, 2016

RE-SUBMITTED: August, 17, 2016

DISSENTING OPINION

CHIEF JUSTICE SAYLOR DECIDED: November 22, 2016

I join Justice Donohue’s dissenting opinion. To the degree that the majority 

premises its disposition upon the doctrine of waiver, I offer the following comments.

When addressing concerns about issue preservation and presentation, my own 

thoughts align with those courts which remain “mindful of the prophylactic and 

prudential origins of the doctrine.” Huber v. Taylor, 469 F.3d 67, 75 (3d Cir. 2006). For 

example, in the federal judicial system, the doctrine of plain error, as well as 

discretionary decision-making authority invested in the courts of appeals, continue to 

serve as safety valves to alleviate the potential for injustice.1

 

1 See, e.g., Fed. R. Crim. P. 52(b) (providing for consideration of “[a] plain error that 

affects substantial rights” even though the error “was not brought to the court’s 

attention”); Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct. 2868, 2877 (1976) (“The 

(continued...)
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This Court, of course, has moved far away from such prudential roots in the 

direction of strict enforcement of waiver, for example, via its abrogation of the plain error 

doctrine and curtailment of relaxed waiver in capital litigation.2 In decisional law

referenced by the majority, the Court also converted what, on its face, appeared to be a 

discretionary waiver practice pertaining to the filing of statements of matters complained 

of on appeal, see Pa.R.A.P. 1925 (superseded) (“A failure to comply with such directive 

may be considered by the appellate court as a waiver . . ..” (emphasis added)), into a 

mandatory waiver. See Commonwealth v. Hill, 609 Pa. 410, 422, 16 A.3d 484, 491

(2011) (quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998), 

for the proposition that “[a]ny issues not raised in a [statement of matters complained of 

on appeal] will be deemed waived” (emphasis adjusted)).

I note, however, that this particular escalation of waiver precepts generated an 

outcry from members of the legal community. The controversy was reflected, for 

example, in resolutions submitted to the Court by the Pennsylvania Bar Association, the 

Philadelphia Bar Association, and the Allegheny County Bar Association. See, e.g., Pa. 

 

(...continued)

matter of what questions may be taken up and resolved for the first time on appeal is 

one left primarily to the discretion of the courts of appeals, to be exercised on the facts 

of individual cases[;] . . . [c]ertainly there are circumstances in which a federal appellate 

court is justified in resolving an issue not passed on below, as where the proper 

resolution is beyond any doubt, or where ‘injustice might otherwise result.’” (citations 

omitted)).

2 See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 260, 322 A.2d 114, 117 (1974) 

(abolishing the plain or fundamental error doctrine in civil cases); Commonwealth v. 

Clair, 458 Pa. 418, 423, 326 A.2d 272, 274 (1974) (same, for criminal cases);

Commonwealth v. Freeman, 573 Pa. 532, 560, 827 A.2d 385, 402 (2003) (curtaining the 

relaxed waiver doctrine in capital direct appeals); Commonwealth v. Albrecht, 554 Pa. 

31, 45, 720 A.2d 693, 700 (1998) (abolishing relaxed waiver in capital post-conviction 

matters).
[J-95-2016][M.O. – Wecht, J.] - 3

Bar Ass’n, Appellate Advocacy Comm. Resolution dated Aug. 22, 2006 (urging the 

Court to ameliorate its strict waiver practice relative to the submission of statements of 

matters complained of on appeal, given that “merits resolution of disputes is preferable 

to waiver and enhances respect for the courts and the law by the parties to the dispute 

and society generally”). Ultimately, this Court responded by revising the relevant Rule 

of Appellate Procedure to account for special circumstances. See Pa.R.A.P. 1925(c).

As a general rule, I support the enforcement of waiver constructs as a means to 

sharpen controversies and maintain fairness to opposing litigants. I would nevertheless 

recognize exceptions for extraordinary circumstances (as pertain, for example, in the 

context of Rule of Appellate Procedure 1925, as discussed above). In this regard, 

harkening back to earlier decisions of this Court, I would submit, the judiciary should 

retain some latitude to disregard waiver where the alternative is to involve the courts in 

the enforcement of a fraudulent or sham judgment. See Cochran v. Eldridge, 49 Pa. 

365, 370 (Pa. 1865) (“[W]hen it is alleged upon adequate proofs that a judgment . . . has 

been obtained by a suppression of truth which it was the duty of the party to disclose or 

by the suggestion of a falsehood or by any of the indefinite and therefore undefinable 

means by which fraud may be practised, no court will allow itself, its records, and the 

process of law to be used as instruments of fraud.”); accord Sherman v. Yiddisher 

Kultur Farband, 375 Pa. 108, 120, 99 A.2d 868, 871 (1953) (Musmanno, J., dissenting) 

(“Every tribunal in the United States does honor to the venerable rule that courts 

possess inherent power to control, amend, open and vacate their decisions according to 

circumstance, and especially where vitiated by fraud).

In the present case, I find the circumstances to be quite extraordinary. It is 

greatly disconcerting, to me at least, that the City of Philadelphia’s Department of 

Revenue had or has a practice of issuing fictitious and arbitrary tax assessments,
[J-95-2016][M.O. – Wecht, J.] - 4

designed to frighten citizens, that is so common as to have acquired a name: “jeopardy 

assessment.” N.T., June 26, 2013, at 27; see also id. at 43-44 (reflecting the 

unrebutted testimony of a revenue collection manager that her supervisor engages in a 

practice of “really just mak[ing numbers] up . . . try[ing] to make it real high”).

3

 There

would appear to be no formal protocol or procedure whereby the resort by Department 

personnel to artifice is necessarily confined to purported scofflaws. Apparently, at the 

discretion (or whim) of Department personnel, “jeopardy” (or sham) assessments may 

be inflicted on the citizenry at large, including those persons who may be lacking in 

education and/or resources or are otherwise vulnerable.

Whether or not the common pleas court should have permitted inquiry into the 

Department’s pernicious practices underlying a tax assessment in the context of a 

collection proceeding, the present record comes to this Court as it does. At bottom, I 

simply do not believe that a court of last resort should in any way permit to be condoned 

or validated what appears very clearly, on this record, to be an arbitrary judgment 

obtained via such subversive means. To the extent that our refusal to do so would 

foster other challenges to tax assessments in Philadelphia, I believe that should be 

seen as arising as a consequence of the Department’s own untenable conduct, and not 

the appropriate unwillingness of the judiciary to permit it to go unredressed.

Justices Todd and Donohue join this dissenting opinion.

 

3 A true jeopardy assessment is a statutorily-authorized, extraordinary measure 

employed by taxing authorities to address exigent circumstances so that an assessment 

or collection is not jeopardized by delay. See, e.g., 72 P.S. §7339(a). This contrasts 

with the informal conception based on outright contrivance manifested on the present 

record, whereby Department personnel simply “put [an arbitrary] figure out into our data 

base with the hopes that it will elicit a response from the taxpayer.” N.T., June 26, 

2013, at 27.