Superior Court Chastises Appellant for 'Throwing in Every Conceivable Point'

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A three-judge appellate panel of the Pennsylvania Superior Court called out an appellant for raising what it said were too many issues on appeal, reasoning that making more than six arguments in one case means none of them has any merit.

Superior Court Judge Jack Panella said in the court's opinion that the appellant, Community Care Behavioral Health Organization, threw everything at the wall to see what stuck.

Citing the late U.S. Supreme Court Justice Robert H. Jackson, Panella pointed out, "Legal contentions, like the currency, depreciate through over-issue."

"The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error," Panella wrote. "But receptiveness declines as the number of assigned errors increases. Multiplicity hints at a lack of confidence in any one. Of course, I have not forgotten the reluctance with which a lawyer abandons even the weakest point lest it prove alluring to the same kind of judge. But experience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one."

The case stems from Community Care requesting that one of its contractors, Berks Community Health Center, repay $105,000 after allegedly failing a fraud, waste and abuse audit. Berks claimed the repayment, termed "retraction," was an unfair solution and instead asked Community Care to educate its employees on complying with regulations.

Berks also asked the court below to cancel $80,000 of the retraction, which it did. Community Care appealed on multiple grounds.

Panella responded in the decision by noting that "throwing in every conceivable point" is distracting to judges and gives credence to the presumption that none of the arguments has any merit.

"Indeed, this presumption is borne out by Community Care’s brief," Panella said, adding that the majority of Community Care's points lack citation to any legal decisions.

In terms of interpreting the contract between the two entities, for example, Panella said, "despite several arguments requesting we overturn the trial court’s legal conclusions on the scope of the contract between the parties, Community Care never cites to any authority to support its belief the trial court incorrectly construed the contract."

Ultimately, the Superior Court ruled in favor of Berks and held that none of Community Care's arguments merited relief.

David W. Crossett of Cornerstone Law Firm in Blandon represents Berks.

"I did find the strength of their rebuke to be unusual," Crossett said. "And perhaps, although surprising in its candor, it is helpful for counsel in appellate litigation to know what the court is and is not looking for."

Dana Windisch Chilson of McNees Wallace & Nurick in Harrisburg represents Community Care and did not return a call seeking comment.