Taking a DIG at the Pennsylvania Supreme Court

Did you fall for the clickbait headline?

No, this post does not take a shot at Pennsylvania’s highest court. Instead, here we consider the court’s practice of ordering some cases “dismissed as improvidently granted” or “DIGed” and how that practice has evolved.

A “DIG” happens when an appellate court with discretionary jurisdiction grants review but later dismisses without reaching the merits. This often happens because of a “vehicle problem” the court did not know about at the petition stage that only surfaced when the court dug into the merits. One example is the petitioner’s waiver of its issue for failing to preserve it during the underlying litigation. Another is mootness caused by an intervening change in law or facts. When these flaws appear, courts kick cases to the curb by unexplained, one-sentence orders, like this: “AND NOW, this [date], the appeal is DISMISSED as having been improvidently granted.” These orders have no precedential effect. It is as if the court never granted review in the first place.

The U.S. Supreme Court sometimes DIGs a case. It did so recently in a case involving Facebook. Its DIG practices have been studied plenty (see examples here and here). But little has been said on the matter about the Pennsylvania Supreme Court. So how about we take a look?

Background on DIGs in Pennsylvania

To begin, the Commonwealth’s high court did not always have discretionary jurisdiction. The Pennsylvania General Assembly bestowed it by legislative enactments in the 1970s and 1980s. These coincided with the legislature’s expansion of the Superior Court, Pennsylvania’s intermediate appellate court for most criminal and civil cases. With those changes in place, the Pennsylvania Supreme Court’s docket became mostly discretionary. It now operates much like the U.S. Supreme Court — although it calls a request for review a petition for “allowance of appeal,” not “certiorari.”

After it attained discretionary jurisdiction, the Pennsylvania Supreme Court began a practice of occasionally dismissing cases as improvidently granted. It did so rarely in the 1970s. But DIGs became common in the 1980s and 1990s. The court would routinely dismiss dozens of cases every year.

In the early 2000s, however, the trendline went down. By 2009, the annual DIG total was in the single digits, and it has not been in double digits since. (With one exception: 2016, when the court DIGed 13 cases. That outlier was probably due to major changes in the court’s composition, as four new justices joined the seven-justice court that year.)

Pennsylvania Is on a DIG Downtrend… But They Still Happen

So why has the DIG number dropped and stayed low for the last 15 years?

Plainly, the court learned from experience. DIGs upset the parties and lawyers involved. They have poured resources into their briefs and oral arguments. A DIG leaves them with nothing to show for it but an inconsequential one-line order. Surely the court heard grumbling, and responded with improved quality control. Most recently, in 2021 and 2023, the court amended Pennsylvania Rule of Appellate Procedure 1115 to require petitioners to show issue preservation. These commendable steps help ensure waiver problems are detected right up front, before review is granted.

While these steps help, a handful of DIGs still happen every year. They remain an irritation — including for some justices. In 2024, Justices David Wecht and Kevin Brobson each took issue with these orders. Justice Wecht is an opponent of the practice, often dissenting from DIGs. He takes particular issue with dismissals that seem to him like just a case of “buyer’s remorse.”

He’s got a point. Unless there is a vehicle problem, a case briefed and argued on the merits deserves a merits decision. An unexplained, one-line dismissal disappoints everyone. The court got the loser’s hopes up only to dash them. The winner is relieved to keep the win but irritated it was put through a pointless exercise. And the attorneys have to bill their clients for all their wasted efforts. Clients justifiably ask: “If the court was never going to decide my case, then why did it put us through all that?” Often there is no good answer. It is hard to see how that frustration can be good for confidence in the court.

This is avoidable. If the court ultimately decides it should not have granted review, that does not mean it has to issue a one-line dismissal that leaves everyone involved annoyed and guessing. It can still do something meaningful.

The court has already invested its own time and efforts into the case. It has read the briefs and listened to the oral arguments. The justices and their staff members have prepared internal writings about the case. The court has come this far already. Why not go a little further by converting these internal efforts into a public form to benefit the parties, attorneys, and others?

The Court Could Explain Its DIGs

In cases that might otherwise wind up as a DIG, the court could instead issue a per curiam decision on the merits. It need not be a magnum opus. For “buyer’s remorse” cases, a concise decision with briefly-stated reasoning that all (or a majority of) justices can agree on should suffice in most cases. A short, reasoned merits decision also could provide modest guidance for future cases. The same holds true for cases with vehicle problems; a short per curiam with a sentence or two explaining what caused the dismissal would let the parties and counsel understand the result. Disagreeing justices could note their concurrence in the result or dissent without writing separately. By converting the court’s internal efforts to a writing suitable for public consumption, the parties and counsel will get some explanation, with relatively little extra investment by the court.

This kind of brief explanation is not unprecedented. In a recent case, the court issued a four-page per curiam order explaining why it was dismissing a matter as improvidently granted, though in the slightly different situation of a federal court’s petition for certification of a state law question. The court explained itself, and thus the parties and lawyers understood why the court took that step. (Full disclosure: Stevens & Lee is counsel for parties to that case.)

Perhaps the court will consider making this a regular practice. It certainly seems better than leaving everyone unhappy and scratching their heads.

Can you dig it?