Cover image for The Supreme Court of Pennsylvania: Life and Law in the Commonwealth, 1684–2017 Edited by John J. Hare

The Supreme Court of Pennsylvania

Life and Law in the Commonwealth, 1684–2017

Edited by John J. Hare


$80.95 | Hardcover Edition
ISBN: 978-0-271-08011-6

Available as an e-book

456 pages
7" × 10"
25 b&w illustrations

The Supreme Court of Pennsylvania

Life and Law in the Commonwealth, 1684–2017

Edited by John J. Hare

“This book successfully achieves what most of its kind cannot—it both educates and inspires. John Hare and his remarkable team of contributors address diverse historical and contemporary topics in a way that generations of lawyers and historians will both enjoy and treasure. This terrific book preserves, unlike any other, the incredible legacy of our Supreme Court of Pennsylvania.”


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Established in 1684, over a century before the Commonwealth, Pennsylvania’s Supreme Court is the oldest appellate court in North America. This balanced, comprehensive history of the Court examines over three centuries of legal proceedings and cases before the body, the controversies and conflicts with which it dealt, and the impact of its decisions and of the case law its justices created

Introduced by constitutional scholar Ken Gormley, this volume describes the Supreme Court’s structure and powers and focuses at length on the Court’s work in deciding notable cases of constitutional law, civil rights, torts, criminal law, labor law, and administrative law. Through three sections, “The Structure and Powers of the Supreme Court,” “Decisional Law of the Supreme Court,” and “Reporting Supreme Court Decisions,” the contributors address the many ways in which the Court and its justices have shaped life and law in Pennsylvania and beyond. They consider how it has adjudicated new and complex issues arising from some of the most notable events and tragedies in American history, including the struggle for religious liberty in colonial Pennsylvania, the Revolutionary War, slavery, the Johnstown Flood, the Homestead Steel Strike and other labor conflicts, both World Wars, and, more recently, the dramatic rise of criminal procedural rights and the expansion of tort law.

Featuring an afterword by Chief Justice Saylor and essays by leading jurists, deans, law and history professors, and practicing attorneys, this fair-minded assessment of the Court is destined to become a criterion volume for lawmakers, scholars, and anyone interested in legal history in the Keystone State and the United States.

“This book successfully achieves what most of its kind cannot—it both educates and inspires. John Hare and his remarkable team of contributors address diverse historical and contemporary topics in a way that generations of lawyers and historians will both enjoy and treasure. This terrific book preserves, unlike any other, the incredible legacy of our Supreme Court of Pennsylvania.”
“A fascinating and important collection tracing the many ways in which the Pennsylvania Supreme Court has shaped the history of the Commonwealth and the nation since its inception in 1684. Taken as a whole, this volume instantly assumes its place as the most comprehensive and wide-ranging historical treatment of the procedural and jurisprudential development of the Court available, and it provides researchers and scholars with views of the Court’s 333-year history that are both celebratory and critically analytical.”

John J. Hare is an attorney and the coauthor of Keystone of Justice: The Pennsylvania Superior Court, 1895–1995.


Foreword (John J. Hare)

Introduction: The History of a Time-Honored Court (Kenneth G. Gormley)

Part 1: The Structure and Powers of the Supreme Court

1. (S)electing Judges in Pennsylvania (Charles L. Becker and Ruxandra M. Laidacker)

2. The King’s Bench Powers (William S. Stickman IV)

3. The Power of Rulemaking (Renée Cohn Jubelirer, Robert L. Byer, and Meredith E. Carpenter)

4. The Supreme Court’s Singular Criminal Procedure Work in a Pivotal Era (James A. Shellenberger and James A. Strazzella)

5. Supervising and Regulating the Practice of Law (Thomas G. Wilkinson Jr. and Roger B. Meilton)

6. Supervising and Regulating the Judiciary (Roger B. Meilton and Thomas G. Wilkinson Jr.)

7. The Development and Improvement of Pennsylvania’s Judicial Computer System (Joseph A. Del Sole, Amy Ceraso, and Thomas B. Darr.)

Image Gallery

Part 2: Decisional Law of the Supreme Court

Section 1: Constitutional Law and Civil Rights

8: The Supreme Court and the Separation of Powers Under the Pennsylvania Constitution (Howard J. Bashman)

9. The Supreme Court and Religious Liberty: The Competing Visions of William Penn and Chief Justice John Bannister Gibson (Gary S. Gildin)

10. Free Expression Versus Reputation: The Supreme Court’s Weighing of Interests (Carl A. Solano and Edward J. Sholinsky)

11. Women on the Court and the Court on Women (Deborah L. Brake and Susan Frietsche)

12. Article I, Section 28 of the Pennsylvania Constitution: Prohibiting the Denial or Abridgment of Equality of Rights Because of Sex (Phyllis W. Beck and Michele Hudzicki-Grimmig)

13. The Supreme Court’s Enforcement of Antidiscrimination Laws (Teresa Ficken Sachs)

14. The Supreme Court and the Contours of State and Federal Power in Revolutionary Pennsylvania (John J. Hare)

Section 2: Tort Law

15. The Floodgates of Strict Liability: The Johnstown Flood of 1889, the Supreme Court, and the Rise of Modern American Tort Law (Jed H. Shugerman)

16. The Supreme Court and Medical Malpractice Law (Charles L. Becker, Shanin Specter, and Thomas R. Kline)

17. The Ebb and Flow of the Law: The Supreme Court’s Product Liability Jurisprudence (James M. Beck)

18. Clash of Titans: The Supreme Court and Product Liability (Clifford A. Rieders and Pamela L. Shipman)

Section 3: Criminal Law

19. The 1778–1779 Chester and Philadelphia Treason Trials: The Supreme Court as Trial Court (Carlton F. W. Larson)

20. Slavery and the Supreme Court: High Court Justices and the Problem of Fundamental Justice (Paul Finkelman)

21. When Felons Don’t Kill: The Felony Murder Rule in Pennsylvania (Arthur G. LeFrancois)

Section 4: Labor Law and Economic Rights

22. The Supreme Court and the Labor Movement (Jeffrey P. Bauman)

23. The Homestead Lockout of 1892 and Jurisprudence in Pennsylvania (Melvyn Dubofsky)

24. Defining the Role of the Legislature in Regulating the Economy (Vincent C. Deliberato Jr.)

Section 5: Administrative Law

25. The Supreme Court and Administrative Law (John L. Gedid)

Afterword (Thomas G. Saylor)

Appendix A: The Reports of the Supreme Court of Pennsylvania (Joel Fishman)

Appendix B: Historical List of Supreme Court Justices



The History of a Time- Honored Court

The Pennsylvania Supreme Court is one of the most significant, esteemed judicial bodies in the history of the United States, and, indeed, in the civilized world.

There has been some debate, however, about whether Pennsylvania’s Supreme Court—often dubbed “the oldest court in North America”—can legitimately claim that distinction. One renowned legal historian, writing in 1972 to mark the 250th anniversary of the act that formally established the Pennsylvania Supreme Court, provided the best analysis of the matter. Erwin C. Surrency, professor of law, librarian at Temple University, and founder of the American Journal of Legal History, confirmed that the Court can trace its roots to the establishment of a provincial court in 1684.This body sat in Philadelphia and consisted of five judges “who were required to go on circuit into each county to try titles to land and all suits in law and equity which were outside the jurisdiction of the county courts then held by the justices of the peace.”

The complicated part of the Court’s history, however, resides in the period between 1684 and 1722, before the Court was formally created by statute. During that time, the statutory definition of the courts changed as a result of the need to send legislation to the Privy Council in England for review. During this four-decade stretch, the British Crown repeatedly “disallowed” efforts by William Penn and the General Assembly of the colony to establish a permanent judicial system. For instance, in 1690, the Pennsylvania legislature sought to create a provincial court of five judges with broad jurisdiction and the ability to take appeals from county courts. This act was disallowed by the Crown. After Governor John Evans (1704–9) issued an ordinance pressing for the creation of a permanent judicial system with a high court seated atop the pyramid, the Crown eventually permitted such a change. The Judiciary Act of 1722 established a “Supream Court” composed of three justices “of known Integrity and Ability,” with one presiding as chief justice. The three-member court consisted of a chief justice (David Lloyd, 1717–31) and two associate justices (George Roche and Robert Assheton). The Court’s jurisdiction, while not as sweeping as it would eventually become, nonetheless encompassed “a large charter.” As Professor Surrency correctly noted, the practical effect of the Judiciary Act

of 1722 was that “it combined both trial and appellate functions” in the Supreme Court, which “stood above all other courts of the Province.”

Thus it is a fair claim that the Supreme Court of Pennsylvania is the oldest court in North America. Yet it is also true that the Court did not function continuously during its earliest stages due to ongoing battles with the Crown. When it finally emerged in 1722 as a permanent judicial body, however, it was unlike any other court in the history of America. Indeed, one distinguished member of the Pennsylvania Bar—who spoke at the celebration marking the Supreme Court’s 250th anniversary, held at Independence Hall in Philadelphia—observed that this judicial body reflected the ambitious dream of William Penn himself: Penn had hoped to create a court with broad jurisdiction to handle matters across the length and breadth of his new colony. This new court not only fulfilled that vision; it became “the prototype” for the Framers of the US Constitution a half century later when they created the US Supreme Court in Article III of that document.

I. The Pennsylvania Constitution Shapes the Court

The Pennsylvania Supreme Court has undergone significant changes over the course of the past three centuries. Most of these have been tied to the evolution of the Pennsylvania Constitution itself, which assigns the Supreme Court a special place in the state’s governmental structure. Thus the history of our Supreme Court is indissolubly linked to that of the state’s fundamental charter.

Pennsylvania’s first Constitution, approved in September 1776, was adopted in the midst of the Revolutionary War, twelve years before the US Constitution came into being. It thus served as a rallying point for colonists determined to break ties with the British. A secret resolution adopted by the Second Continental Congress in May 1776 had authorized the colonies to establish their own frameworks of government. In Philadelphia, four thousand Pennsylvanians swarmed into a public meeting place and, with “three rousing cheers,” endorsed the notion of drafting their own Constitution.

The elderly statesman Benjamin Franklin was selected as chair of the Pennsylvania constitutional convention. That body gathered in Carpenter’s Hall in Philadelphia on July 5, 1776, finished its drafting, and approved the Pennsylvania Constitution on September 28, 1776. Chapter II of that document (“Plan or Frame of Government”) provided for the creation of a Supreme Court. Section 20 of the Constitution provided that the president of the Supreme Executive Council (SEC) and the short-lived Council of Censors would appoint judges rather than leaving the matter to recurring elections. Section 23 stated that “judges of the supreme court of judicative” would be commissioned for seven years. All judges—including those on the Supreme Court—were given “fixed” salaries so that they would not be beholden to a legislature that might increase, decrease, or abolish their pay. Thus the Pennsylvania Constitution created a uniquely independent judiciary—the first of its kind.

When it convened on April 10, 1776, just before the Declaration of Independence was formalized, the Pennsylvania Supreme Court was still conducting proceedings under the caption the “reign of our Sovereign, George the Third.” By its next session in September 1778, the caption had been changed to read, “The Commonwealth of Pennsylvania.” Thus the Provincial Court had formally ended; a new court, not beholden to the Crown, had come into existence. It was presided over by Chief Justice Thomas McKean (1777–99). A leading public figure, McKean was a signer of the Declaration of Independence, president of the Continental Congress, and later governor of Delaware; he has rightly been described as the “father of the judicial system in Pennsylvania.”

II. The Court’s Functions

During the pre-Revolutionary period, the Supreme Court possessed a mishmash of functions designed to establish a loosely constructed judicial system in the sprawling territory. It had the ability to issue writs of error, writs of certiorari, and writs of habeas corpus. In criminal cases, the Supreme Court possessed trial court functions and could preside over trials.

During the period of British rule, appeals had been permitted from the Pennsylvania Supreme Court to the Privy Council in England (a body that represented the sovereign). Briefly, following independence, appeals were allowed to a “High Court of Errors and Appeals” (a body consisting of judges, the president of the SEC, and others). By 1806, the High Court of Errors and Appeals was abolished entirely, and the Supreme Court became the final court of review in Pennsylvania. For the most part, the laws and procedures established during the colonial era “were continued without change.”

Justices of the Supreme Court rode circuit across the state, with sessions regularly held in Philadelphia (covering counties in the eastern district), Pittsburgh (the western district), and Sunbury in Northumberland County (the middle district). After the practice of riding circuit was temporarily halted in 1809, the Court held sessions in Philadelphia, Pittsburgh, Lancaster, Chambersburg, and Sunbury. By 1834, when the practice of riding circuit was resumed, sessions were added in the new state capital at Harrisburg. The Constitution of 1874 abolished the Court’s nisi prius duties in Philadelphia, thereby making it exclusively an appellate court.

III. Size of the Court

The Supreme Court’s size has fluctuated over the years. Pursuant to the Judiciary Act of 1722, it initially consisted of three justices, including a chief justice. By 1767, it was increased to four justices; that number ended up being embodied in the original state Constitution. In 1809, after the Court’s circuit duty was temporarily eliminated, the number of justices dropped back down to three; it then bounced up to five in 1826, after circuit duties resumed. With the adoption of the Constitution of 1873, the Supreme Court was given jurisdiction over the entire state—by appeal, certiorari, and/or writ of error—“in all cases, as is now or hereafter be provided by law.” Concurrent with this change, the number of justices was increased to seven, including the chief justice. This number has remained fixed since 1873. It recognizes the breadth of the Court’s work and the importance of ensuring a variety of perspectives on this supreme judicial body in order to properly address the Common- wealth’s (and its citizens’) most pressing issues.

(Excerpt ends here)