Appellate Courts & Their Love Letters in the Sand
A Note: I wrote the column published below earlier this month. I deferred publishing it because I am reticent to criticize the appellate judicial process even though I have lots of “opinions” about the substance of what they decide. I did practice with some frequency before the Superior Court, but I am also aware of the enormous volume that court has presented to it and how challenging it can be to be consistent. Yet, September 16 brought a precedential decision on the topic of marriage annulment. In 45 years of practice in family law including leadership positions in the local and state bars, I know of only one annulment case. In 2023 the judiciary published 71 pages of judicial statistics related to families without a single reference to “annulment.” As I have suggested, I read many non-precedential decisions that are matters of regular controversy and judicial importance to the public. They merit publication. As for Bordone v. Bordone, you can be the judge. 2025 Pa. Super. 205. Bordone, R. v. Bordone, V. :: 2025 :: Pennsylvania Superior Court Decisions :: Pennsylvania Case Law :: Pennsylvania Law :: U.S. Law :: Justia
Meanwhile, here are the concerns I have been “repressing” when the appeals courts say they can’t decide a case for want of a full record or complete appellate briefs but then discuss the merits of the decision.
I spend time reading the cases issued each week by the appellate courts. Once upon a time (i.e., the 20th century) every decision of the Pennsylvania Superior Court was a published decision with precedential value. It could be cited and, if on point, controlled how trial courts should decide matters.
I can’t find when that practice ended but it seems to correlate with some Supreme Court rulings where that court expressed concern about the Superior Court making law. The noted example in family law was Blue v. Blue 616 A.2d 628 (Pa. 1992) where the Supreme Court found that decades of Superior Court precedent imposing duties of support for college education was issued without authority.
The result, which we see in almost every decision from today’s Superior Court, is that its function is error-correcting. It does issue precedential decisions but those cases are a tiny fraction (9.5%) of what is otherwise an immense caseload and they reference the fact that the Superior Court doesn’t “make law.”
The other development of the 21st century is the pro se appellant. “Do it yourself” is a fast growing trend. Unfortunately, a lot of those characters run aground on the shoals of several hundred pages of published appellate procedure. The rules are adopted for reasons and the law has long been clear that if you don’t follow the prescribed procedures, your appeal will be quashed or denied. We’re reading a lot of these cases and therein lie some problems.
September 3, 2025 brought us Stangs v. Layton, 3028 EDA 2024 (Pa. Super.). This is another multi-year custody war where the latest and greatest issue was a child’s involvement in extracurricular activities. The trial court decided to let mom run that show without dad’s input so long as she provided make-up time for dad out of her allocated schedule when extracurriculars would interrupt dad’s time. The Court also ordered a parent-coordinator to try to head off the next round of “childish” disputes and directed each party to pay half that expense. Mr. Stangs appealed that order citing two errors. The first was the court did not adequately consider his ability to contribute to the coordinator expense. The second was the court did not provide a full review of the custody factors under 23 Pa.C.S. 5328.
These issues are of interest to the legal community. Parenting coordinators are a relatively new component of child custody world (March 2019) . There had been a history of judicial hostility when some counties adopted parent coordination but they are now an accepted piece of the judicial landscape. Pa R.C.P. 1915.11-1. What is less clear is just where their powers end and there hasn’t been much written about how funding for the coordinator should be measured and assessed. We also have some differences over just when a judicial modification of a custody order requires a complete analysis of the 12 statutory custody factors. Note well that the factors “changed” on August 31, 2025. Section 5328.0 – Title 23 – DOMESTIC RELATIONS
So, Stangs started out as an appellate decision that promised some insight even though it was non-precedential. Alas, the promise went unfulfilled because the Appellant made a poor trial record and completely dropped the ball in terms of what the appellate rules required of him. The Superior Court would have been generous had it provided a short summary of the rules not followed.
Instead, the Court rambles on for 16 pages. In so doing, it toggles between identifying the procedural errors which prevent it from considering the appeal on its merits, and then trying to persuade the world that the Montgomery County trial judge handled the case properly. The point of the appellate rules is supposed to be that failure to comply prevents full analysis of the alleged errors. So, why are we discussing the errors? In this case, the Court overlooks some of the procedural problems but then decides the record is defective because the trial court (actually the Prothonotary) did not send the transcript of the hearing. The appellate court acknowledges that it has the transcript because the Appellant supplied a reproduced trial court record. The Court even refers to that document in its footnote 5. But because the appellant wasn’t able to get the Prothonotary to provide the same documents, they legally “do not exist.”
There is a Catch-22 in all this. Parties are notified when the certified record is sent to the appellate courts. They aren’t told what is in that transmission, so it seems unclear what a party is to do to insure the Prothonotary does its job. More importantly, the real question here, for the bar and the public at large, becomes: “Is this case citable for any reason or is this what old lawyers termed a ‘speaking demurrer’?” The Trial Court did, in fact, change both the legal custody landscape and the physical custody arrangement even though the time each child has with each parent remains the same.” That’s something we all (lawyers and litigants) need to grasp when addressing these kinds of issues. We have 17 pages of legal analysis here, but given the procedural irregularities the court has identified, does it mean what it says or is this a letter to the appellant saying: “You messed this up procedurally, but you weren’t going to win anyway.” That’s a dubious approach and one which leaves the public with a love letter in the sand.
