Retain John Musmanno, The Superior Court's Long Ball Hitter

Yesterday, I told you I'll be voting against the retention of Superior Court Judge Joan Orie Melvin. One of many reasons for this is that she ignored her responsibilities as a common pleas judge to run for a seat on the superior court. An investigative report by a team of eleven reporters at the Post-Gazette, revealed that her courtroom was "virtually shut down . . . for several weeks" while she "spent numerous weekdays out of town campaigning."

Melvin was a civil judge at that time, and the caseload was administered by then civil administrative judge John L. Musmanno. He was running for a seat on the superior court, too. But unlike Melvin, he spent little time travelling during the campaign, and attended to his judicial duties.

Who is John Musmanno?

PaProgressive tells us Musmanno "grew up in public housing in a family of modest means. His is another American success story, someone who made something of himself and now dedicates his life to serving others. He attended college because he won a caddie scholarship and worked his way through Washington and Jefferson College. He graduated Magna cum Laude and was a member of Phi Beta Kappa. He went on to the Vanderbilt University School of Law where he earned his J.D. While there he was Assistant Editor of the Vanderbilt Law Review (a high honor)."

He was first elected as an Allegheny County judge in 1981. In 1995, he sought the Democratic nomination for the supreme court, but was defeated by Russell Nigro, who ultimately went on to win a seat in the general election. Ironically, Nigro became the first sitting justice to lose his retention bid last year, a fatality of voters indignant about the legislative and judicial paygrab.

Musmanno was elected to the superior court in 1997. If retained, he will be forced to retire in 2012, when he reaches mandatory retirement age.

Unlike Melvin or even Saylor, Musmanno's exrtrajudicial activities are low key. He doesn't try to sneak pocket knives onto a plane after being told he can't do so. He does not engage in five years worth of lawsuits, in two different states, over harmless anonymous comments posted on an Internet gossip site. I have spoken to some lawyers, who use words like "even" and "consistent" to describe this Pittsburgh jurist. PaProgressive, who has met with Musmanno, says this, "It's nice to speak with a Judge who doesn't think the world revolves around him, as I sometimes see on the local level." His self-effacing personality is evident in a video posted by Pennsylvania Democrats.

After reading several of his opinions, I have my own term for Musmanno - long ball hitter. He sits quietly in the superior court dugout until something really important is pitched at the court, and then he swings away with excellent opinions.

Musmanno is the Superior Court's Long Ball Hitter

I have reviewed Musmanno's eighty-nine online opinions. Seventeen of these are concurring or dissenting opinions. He appears to be the court's designated hitter - the judge who tackles the tougher cases.

1) A Case for King Solomon. - One of the more interesting of these cases involved an alienated couple arguing over who was entitled to their dead son's ashes. A judge, who must have been familiar with only half of the King Solomon tale, ordered the ashes to be divided and placed in two separate urns. Musmanno ruled that "the trial court abused its discretion in using its equitable powers to override the desires of one of the next of kin as to the division of Son's remains."

2) A trend that favors middle class consumers against corporate giants. - Musmanno's decisions demonstrate a keen understanding and appreciation of ordinary consumers who are often victimized by increasingly big businesses.

Cable giant Comcast was a defendant in a class action suit be subscribers forced to use remotes and cable box converters that were totally unnecessary. Its lawyers pointed to one of those fine print arbitration clauses in its contract with consumers. They even persuaded a Philadelphia court to condemn cable customers to the bottomless pit of arbitration. But not Musmanno. He quickly noted that these clauses are unenforceable when they are jammed down someone's throat in an adhesion contract.

He also ruled against H & R Block. Angry customers, who learned their "rapid refunds" were actually high interest loans, sued in a class action. A Philadelphia judge had decertified the class, and Musmanno easily navigated through complicated rules of appellate and civil procedure to determine that the trial court had acted improperly.

In a products liability case, Musmanno ruled that the implied warranty of merchantability extends not just to the person who bought the product, but to members of her family as well. In the particular case involved, a two year old boy snatched a lighter from his mother's purse, and started a fire that burned down a home and killed three people.

My favorite of these consumer cases is the Godiva chocolate case. A shopper at a local department store saw an open box of Godiva chocolates, and helped herself to a sample. "Well, one won't hurt me." A few minutes later, she came back and helped herself to a second.

That second sample hurt. She was seized by a department store narc, dragged off to a "loss prevention" office, handcuffed to a table, searched, presented with an admission form, and told to confess her heinous crime. She was handcuffed for nearly an hour until admitting, in writing, that she ate two pieces of chocolate she thought were free.

Here's how Musmanno reacted. "[The department store's] continued detention of [the shopper], in handcuffs, exceeds all bounds of decency and we express our outrage at such a procedure."

3) Musmanno and the Constitution. - In addition to his consumer cases, Musmanno has weighed important principles of double jeopardy and has balanced a jury's privacy rights against the media's need to know their names and addresses.

Conclusion

Musmanno is a judge. He served a full term as a trial judge before even thinking about an appellate court. When he did seek a seat on the superior court, he attended to his judicial duties first, unlike some of his colleagues. He has consistently tackled the Superior Court's more thorny legal questions, but his opinions demonstrate that he still understands what life without a black robe is like. I will vote to retain Musmanno.