March 2025 Docket Review

This month, the Court issued 8 precedential opinions and 2 allocatur grants. On the opinion side, the case with the most widespread effect may be Glover, in which the Court, led by Justice Dougherty, recognized an intent-based pathway to legal parentage in the context of a parentage dispute between same-sex partners who had conceived using a sperm donor and in vitro fertilization. Although there was at least arguable evidence that the parties had entered into a contract, already a pathway to legal parentage, the Court decided that the adoption of intent based parentage was appropriate, in part because of an ill-fit between the solemnity of the decision to become a parent and contract principles, particularly bargained-for consideration, concluding “[w]e prefer to recognize a more dignified means to establish parentage for couples who use [assistive reproductive technology] to conceive.” The opinion was a breath of fresh air in an area of the law that often lags behind the times. That said, it is not without its complications. By providing parents an extra pathway to legal parentage, the decision also provides parties opportunity to plead, and litigate, in the alternative. In this author’s view, and likely in the view of countless, particularly same-sex, couples who have used assistive reproductive technology to bring children into the world without the formalities of a corporate merger, the trade-off is worth it.

Also interesting this month is Foster, in which the Court applies federal constitutional jurisprudence that a police officer’s lies to a suspect (in this case, lies that he was not a suspect), do not ipso facto render his ensuing confession involuntary. Although that is a fairly unremarkable proposition of federal law, the Court, in an opinion by Justice Daniel McCaffery, noted that Foster had waived a claim that a parallel Pennsylvania constitutional provision might require a different result, and all but explicitly invited the next appellant to make out the claim. Justice David Wecht concurred, glossing on the point and finding some purchase with Foster’s counsel and their associated amici’s argument that lies, and particularly compelling lies, routinely lead to false confessions. He also noted that the other branches were free to act to restrict police lies that do so.

The point is worth examination, in this case, and particularly inasmuch as police lies in most cases are generally part of an overall tactic called the “Reid method,” whereby police are trained to ratchet up pressure by exaggerating or fabricating a strong case against a suspect, sometimes even fabricating essentially unimpeachable forensic evidence, emphasizing that the suspect’s defending himself would be pointless, and implying that making an inculpatory statement will lead to leniency by the officer, prosecutor, or court.

The tactic is of dubious origin: it derives from Soviet interrogators who were collecting “evidence” for show-trials of political dissidents. And although it is effective at obtaining inculpatory statements, the truth is that if the suspect is guilty, it may be a coincidence.

Federal jurisprudence proceeds from 20th-century lay and judicial notions of voluntariness as a guarantor of a statement’s constitutionally minimally acceptable reliability, and simply does not account for modern psychological understandings of manipulation and voluntariness, or for the fact that, in the post-DNA world, we now know that many individuals who make inculpatory statements are actually innocent. Perhaps the next case will allow the Court to bring Pennsylvania into the present-day on this point as well.

Precedential Opinions

Gustafson v. Springfield, Inc., 7 WAP 2023 (Opinion by Mundy, J.) (holding that action for wrongful death arising out of accidental discharge of a firearm was barred by federal legislation and that the legislation was a valid exercise of Congress’ Commerce-Clause authority and not violative of Tenth Amendment principles)

Schmidt v. Schmidt, Kirides and Rassias, PC (WCAB), 32 MAP 2024 (Opinion by Brobson, J.) (holding that doctor-prescribed CBD oil is a covered “medicine and supply” for purposes of the Workers’ Compensation Act)

Simone v. Alam, 35 MAP 2024 (Opinion by Mundy, J.) (holding that a tenant in common not in possession of real property is not an indispensable party to a premises-liability action against another tenant in common in possession of the property at the time of the injury)

Better Bets Ventures, LLC v. Pa. Gaming Control Bd., 27 MAP 2024 et al. (Opinion by Wecht, J.) (holding the Gaming Control Board lacked substantial evidence to deny a gaming license to certain individuals solely on the basis of their participation in the skill games industry)

Glover v. Junior, 9 EAP 2024 (Opinion by Dougherty, J.) (adopting intent-based parentage in the context of a same-sex couple’s use of assistive reproductive technology to conceive children)

• See also Concurring Opinion by Brobson, J.
  

Commonwealth v. Foster, 34 WAP 2023 (Opinion by McCaffery, J.) (holding that an officer’s lie that a suspect was not a suspect did not vitiate his ensuing statement’s voluntariness under federal constitutional standards)

• See also Concurring Opinion by Wecht, J.
  

Galette v. NJ Transit, 4 EAP 2024 (Opinion by Brobson, J.) (applying federal interstate sovereign immunity doctrine to action against New Jersey transportation agency)

Almusa v. State Bd. of Medicine, 25 MAP 2024 (Opinion by Donohue, J.) (applying new statutory framework to physician’s petition for reinstatement of his license)

Allocatur Grants

Commonwealth v. Roper, 374 EAL 2024 (granting review to consider whether a trial court’s barring of the defendant’s family violated his constitutional right to a public trial and constituted structural error)

Commonwealth v. Gaspard, 511 MAL 2024 (granting review to consider whether the offense of theft by deception in the context of a defendant’s failure to report a source of income while seeking public benefits requires evidence that with proper reporting of income the individual would have obtained a smaller amount of benefits)

February 2025 Docket Review

This month on SCOPAblog, the Court issued 4 precedential opinions and 5 allocatur grants.  On the opinion side, I'm most interested in Laird, which rejects two arguments attempting to broaden petitioners' abilitty to raise claims of ineffective assistance of postconviction counsel notwithstanding the jurisdictional time-bar provisions of the PCRA.  The problem has its roots a few decades ago, when the General Assembly in 1996 made amendments to the PCRA and included a provision titled "Jurisdiction and proceedings," which, perhaps unsurprisingly, includes a subsection providing that jurisdiction for proceedings under the PCRA is vested in the court of common pleas, and then a series of subsections that require claims to be raised within a year of the date a petitioner's judgment of sentence becomes final, subject to a few exceptions for claims which the government has interfered with, claims which are predicated on newly discovered and reasonably pursued facts, and newly-retroactive new constitutional rules, which must be raised within 60 ays (now a year) of the date they could have been raised.  These provisions are commonly called the "time bar."  Early decisions read the title as linking jurisdiction to these procedural rules, based in part on the title, but mostly in light of a policy favoring decisional finality, which was not not a concept related to views that extant petitioners, particularly petitioners challenging an onslaught of death sentences arising out of Philadelphia, some with more vigorous cousnel than most, were using the process to delay and avoid execution.  

This (in my view) misinterpretation of the statute led to a number of ills.  For example, for many years, petitioners who were trying their best to be diligent and filed their petitions technically early, in the window between the time they lost in Superior Court or Supreme Court but could technically have sought U.S. Supreme Court review, were put out of court because of a lack of jurisdiction, but, by the time they found out, the time-bar had run, and there was no jurisdiction to file again. 

But one of the most frustrating problems has been that petitioners are entitled to counsel for at least their first petition, in which inheres a constitutional right to the effective assistance of counsel, and there has been, as yet, no complete remedy to vindicate that right.  Based in part on the view that the time-bar is jurisdictional and the underlying policies of finality, the Court has generally refused to allow petitioners whose first postconviction counsel is ineffective to raise the claim in a serial petition on the theory that said ineffectiveness was a newly discovered fact.  The idea is that, if a petitioner can raise a second petition to vindicate his right to counsel in the first, it logically follows that a petitioner can raise a third to vindicate his right to a second, and so on.  One former Justice was fond of referring to the Augustus De Morgan Poem "Siphonaptera":

Great fleas have little fleas upon their backs to bite 'em,
And little fleas have lesser fleas, and so ad infinitum.
And the great fleas themselves, in turn, have greater fleas to go on;
While these again have greater still, and greater still, and so on.

This meant that the Court was essentially forced into half measures for a number of years.  For example, where a petitioner's counsel was ineffective in failing to raise claims at all, or in a petition without further proceedings, a longstanding rule contemplated that, when a court issued a notice of intent to dismiss the proceedings without a hearing, the petitioner could raise claims of ineffective assistance of postconviction counsel in the first instance.  Given the practicalities of raising nested claims of ineffectiveness in a 21-day period from prison, this procedure was mostly illusory.  Additionally, where a petitioner had a claim of ineffective assistance of counsel per se, the Court balanced finality differently, and in a series of opinions held that such ineffectiveness is a newly discovered fact.  Then, in 2020 and 2021, the Court attempted to address the problem with the procedure in earnest, holding in cases called Shaw and Bradley that petitioners who appeal the denial of relief can raise their claims of ineffectiveness for the first time on appeal, and thereby potentially obtain a remand to start the process over.  In the latter case, the Court chose this path in lieu of another proposed remedy of allowing petitioners to file serial petitions, mostly based on the force of decisions holding the time-bar is jurisdictional.

In Laird, the Court confronts an argument that Bradley did precisely what it did not do: establish an equitable exception to the time-bar.  The Court dispatches the claim.  But it leaves open the potential that there are other arguments out there.  And there are a few.  As an initial matter, the Court has not been shy to restore correct statutory interpretations despite precedents misinterpreting them over the last few years.  And beyond that, there are a number of reasons that there is more work to do.  First, putting aside jurisdiction, one imagines that animating concerns of finality are less compelling when they put a petitioner in a position of appealing from a court of common pleas to a trial court, seeking a remand, forcing an appellate court to rule on the request, and getting a remand back to the lower court to raise what is in essence a serial petition.  Indeed, procedural mistakes and dropped claims seem to be doing most of the filtering in practice.  Second, the distinction between ordinary ineffectiveness and ineffectiveness per se -- which is actually about what a petitioner must do to demonstrate prejudice -- does not seem particularly logically relevant when it comes to whether the conduct at issue is a newly-discovered fact.  But perhaps most concerning, shortly after Bradley, the U.S. Supreme Court decided a case called Shinn, in which it held that state postconviction counsel's ineffectiveness was not a sufficient reason for subsequent federal postconviction counsel to obtain an evidentiary hearing to make a record on federal postconviction claims.  The long and short of it is that whereas federal postconviction proceedings operated as something of a safety valve for state postconviction ineffectiveness for years, the safety valve is gone.  Although Mr. Laird did not raise the right arguments, it is not difficult to see the Court on some distant day addressing these points properly argued, and finding a way to adopt precisely the remedy he identified.

On the allocatur side, I'm most interested in Gun Owners of America.  Although the primary question for review - a question of state preemption of a Philadelphia gun-control ordinance -- is interesting enough, I am more interested in the second question, which concerns how fulsome a state constitutional claim must be argued in the lower courts to be raised on appeal.  Decisions over the years have faltered on whether and to what degree arguments must be made to preserve an issue.  As some Justices have put it, "Issues get waived; not arguments," and yet other decisions have arguably viewed a full-scale constitutional analysis as a prerequisite to appellate review.  The answer here will have significant impact on the development of state constitutional law, particularly in areas of law, such as criminal law, where resources are limited and/or trial practitioners may not have embedded appellate counsel to make full-scale constitutional arguments in the lower court. 

Precedential Opinions

Commonwealth v. Williams, 17 EAP 2024 (Majority Opinion by Dougherty, J.) (holding that the lower courts erred in determining the Commonwealth failed to establish prima facie cases of several obstruction-of-justice offenses) 

Commonwealth v. Laird, 809 CAP (Majority Opinion by Donohue, J.) (holding that neither an earlier decision allowing petitioners to raise claims of ineffective assistance of PCRA counsel on appeal nor a treaty provided a basis to permit petitioners to raise ineffective assistance of PCRA cousnel via a serial petition)

Garcia v. Foot Locker, 27-28 WAP 2023 (Majority Opinion by Brobson, J.) (holding that a merchant's collection of sales tax on an item not subject to sales tax does not occur within the conduct of its trade or commerce for purposes of the Unfair Trade Practices and Consumer Protection Law)

ODC v. Anonymous Attorney, 2947 DD3 (Majority Opinion by Donohue, J.) (holding that the Disciplinary Board in attorney-disciplinary proceedings must satisfy a burden of proof of clear and convincing evidence and holding that they may not use offensive collateral estoppel from proceedings with lower burdens of proof, including bankruptcy proceedings, to satisfy that burden)

• See also Concurring Opinion by Wecht, J.

Allocatur Grants

Smith v. Kannarkatt, 300 MAL 2024 (granting review to consider the proper application of an "increased risk of harm" causation theory in a medical malpractice case)

PASSHE Kutztown Univ v. PASSHE Officers Assoc, 256 MAL 2024 (granting review to consider whether a trial court vacating an arbitrator's award on the basis of public policy must remand to the arbitrator for a new award)

Gun Owners of America v. City of Phila, 84 EAL 2024 (granting review to consider whether a state gun-control law preempts a Philadelphia gun-control ordinance and the application of waiver doctrine in the context of an allegedly waived state constitutional claim)

Follman v. SD of Phila. (Dept. Ed.), 361 EAL 2024 (granting review to consider whether the Public School Code requires a certain number of school board members to be present for a tenured-professional-employee dismissal hearing)

Lukasik v. Scotchlas, 233 MAL 2024 (granting review to consider whether the Superior Court erroneously sua sponte raised an issue of counsel's abuse of process and remanded for proceedings on whether counsel should be held jointly and severally liable for sanctions)

January 2025 Docket Review

This month on SCOPAblog, the Court issued 6 opinions and 10 allocatur grants.

On the opinion side, I'm most interested in Estate of Herold, in which the Court identifies a distinction between workers' injuries under the Occupational Disease Act and those under the Workers' Compensation Act (WCA), concluding that where the former cause disability or death outside the statute of limitations, the employee may proceed in tort, unlike in the context of the WCA.  In a 5-2 opinion authored by Chief Justice Todd, the Court found that this difference in treatment was required by a difference of language in the statutes, among numerous other indicators of legislative intent, albeit Justices Wecht and Brobson authored dissents.  The decision is interesting not only for its holding as such, but also for the fact that it is yet another point in a constellation of cases in which the Court has been willing, if not eager, to recognize a broader version of workers' rights and tort liability than earlier courts have been, which has been perhaps its most consistent feature in the last decade. 

But perhaps more interestingly, the coalitions on these and other civil-law issues are usually malleable.  Although this opinion rests on the votes of the Chief Justice and Justices Donohue, Dougherty, Mundy, and McCaffery, and curiously drew dissents from two Justices who are generally considered fairly ideologically far apart, the fact is that other cases rest on other coalitions, rarely the same coalition twice, and rarely on partisan lines.  This is in stark contrast to the mythos out there, and will be important to keep in mind this year.

On the allocatur side, I'm most interested in Baxter, which may serve not only to finally answer the questions about mail-in balloting that have dogged Pennsylvania elections for now a decade, but also to provide more guidance as to just how potent the 2018-revitalized Pennsylvania Constitutional right to Free and Equal Elections is.  The issues granted, however, may give politicos some pause.  The court, over Justice Donohue's objection, declined to revisit the issue of whether the dating requirements for those ballots are mandatory.  (An earlier decision concluded that they were, but did not agree on a rationale.)  Instead, the court will decide whether the dating requirements violate Free and Equal Elections Clause, and, if so, whether the underlying legislation's non-severability clause is implicated, shuttering all of the 2020 election legislation in its entirety.  For some, this will feel like a no-win situation.  On the one hand, if the requirements, which have little meaningful purpose, are deemed to be constitutionally valid, approximately 1-2% of mail-in and absentee ballots are likely doomed each election.  And although the gap is decreasing, this currently translates to a loss of about half a point for Democratic candidates.  On the other hand, if they are deemed to be constitutionally invalid, the entire mail-in ballot system (along with longer voter-registration periods, absentee-ballot counting periods, and the end for straight-ticket voting, among other things) may be in jeopardy, which has a similar effect.  From this author's perspective, keeping the question about whether the dating requirements were mandatory in the first place on the table, particularly bearing in mind the canon requiring construction of statutes away from constitutional violations, might have provided at least an escape hatch for those fairly significant outcomes.  

Precedential Opinions

Jackiw v. Soft Pretzel Franchise (WCAB), 3 EAP 2024 (Majority Opinion by Mundy, J.) (clarifying the statutory formula for workers' compensation for dismemberment injuries)

West Rockhill Twp v. DEP,  21-22 EAP 2023 & 77-78 MAP 2023 (Majority Opinion by Wecht, J.) (holding a challenge to a DEP permitting decision under the federal Natural Gas Act may proceed before the Environmental Hearing Board in lieu of federal court)

• See also Concurring Opinion by Dougherty, J.

• See also Concurring Opinion by Mundy, J.

CKHS, Inc. v. Prospect Med Hldgs, 117-118 MAP 2023 (Majority Opinion by Mundy, J.) (holding the lower court misapplied the standard of review for a preliminary injunction in an action involving the conversion of a hospital into a mental-health hospital)

• See also Dissenting Opinion by Donohue, J.

Commonwealth v. Crosby, 30 WAP 2023 (Majority Opinion by Wecht, J.) (clarifying the element of resisting arrest that a defendant's "resistance" require substantial force to overcome in light of jurisprudential confusion)

Commonwealth v. Roberts, 16 WAP 2023 (Majority Opinion by Wecht, J.) (holding that there is a mens rea of knowledge for failing to comply with sexual offender requirements) 

In Re: Estate of W. Herold, 22 WAP 2023 (Majority Opinion by Todd, C.J.) (holding that an employee who contracts an occupational disease and suffers disability or death beyond the Occupational Disease Act's statute of limitations may proceed in tort)

• See also Dissenting Opinion by Wecht, J.

• See also Dissenting Opinion by Brobson, J.

Allocatur Grants

Commonwealth v. Brown, 208 WAL 2024 (granting review to consider whether a third party's confession to a fourth party may constitute a newly-discovered fact for purposes of the time-bar provisions of the PCRA)

Solano  v. ZHB E. Bradford Twp, 212-215 MAL 2024 (granting review to consider the legality and substance of application of de minimis doctrine to a use variance)

Lutheran Home at Kane v. DHS, 321 MAL 2024 (granting review to consider the continuing vitality of administrative deference doctrines in light of federal decisions restricting their federal counterparts)

Commonwealth v. Phillips, 438-439 MAL 2024 (granting review to consider an issue related to credit for time served)

Commonwealth v. Hawkins-Davenport, 246 EAL 2024 (granting review to consider whether the mere view of a firearm warrants an officer in the belief that a motorist is armed and dangerous and thereby justifies a "frisk" of the vehicle's interior cabin)

Commonwealth v. Coles, 234 EAL 2024 (granting review to consider whether proximity to an individual smoking marijuana warrants an officer in the belief that one is engaged in crime and thereby justifies an investigative detention)

Baxter v. Phila. Bd. of Elections, 395-396 EAL 2024 (granting review to consider whether the Election Code's mail-in and absentee ballot dating requirements violate the Free and Equal Elections Clause and, if so, whether the whole statute must be invalidated due to its nonseverability clause)

Commonwealth v. Vance, 290 MAL 2024 (granting review to consider admissibility of officer testimony regarding Google GPS practices and data)

In Re: M.L.R., 559 MAL 2024 (granting review to consider the scope of a trial court's authority to override the legal requirements of the Adoption Act in the best interests of a child)

Commonwealth v. Peters, 409 MAL 2024 (granting review to consider the proper formulation of the mental state of malice in the context of a homicide)

December 2024 Docket Review

This month on SCOPAblog, the Court issued 3 opinions and 5 allocatur grants.  On the opinion side, the most interesting discussion is a little deep in the weeds.  In In re: Prospect Crozer, the court grappled with the effect of a senior-status judicial officer's violation of a constitutional provision prohibiting membership on municipal boards.  Although the opinion itself is an interesting discussion of a little-known constitutional provision, along the way, Justice Donohue writing for the majority discusses the conflict of interest as creating a structural error.  In a concurrence, Justice Mundy agrees, but writes separately to draw a distinction between nonwaivable errors on one hand and structural errors on the other.  For decades, Pennsylvania law has held that there is almost no such thing as a nonwaivable error.  The idea is that each party is obliged to give the opposing party a chance to respond to claimed errors and the trial court an opportunity to correct them instead of doing nothing, and then gainsaying what happened on appeal.  There are very few exceptions to this rule, such as the imposition of an illegal sentence in a criminal case, which was initially viewed as nonwaivable because the error was patent on the face of the record such that there was essentially no benefit to trial court proceedings on the subject (albeit the category has expanded in recent years).  Notably, Pennsylvania law in this regard diverges from federal law, which recognizes that some errors are so clear or fundamental that they are nonwaivable.

As Justice Mundy cogently explains, whether an error is waivable or nonwaivable is a distinct issue from whether it is an error, like most, which requires a case-specific showing of prejudice and is therefore subject to harmless error review, and an error that is structural or otherwise presumptively prejudicial.  This latter category generally includes errors which undermine the process as a whole, such as a non-English speaking criminal defendant not being provided an interpreter, or witnesses not being sworn, or, in this case, the court being constitutionally ineligible to serve as a judge.  In recent years, there has been a tendency to blend the concept of nonwaivability and structurality, which makes sense given that the reasons underlying, say, illegal-sentence doctrine, structural error, and clear or fundamental error in federal court, are all essentially similar.  Someday, the Court may be open to tempering waiver doctrine to appear more like federal practice.  After all, the Pennsylvania and federal doctrines are really just different balances of who is responsible for the quality of litigation and procedural and substantive justice.  But Justice Mundy's concurrence explains why if it is to be rebalanced, the Court will need to do it explicitly.

On the allocatur side, I'm most interested in Strope, which will have significant implications for a large subset of narcotics investigations and prosecutions in Pennsylvania.  In earlier decisions, the Court identified that the Commonwealth is required at a preliminary hearing to establish both the substance of an offense and the identity of the defendant at least in part based on someone with personal knowledge, rather than hearsay statements.  The question in Strope is whether the Court really meant the latter holding, particularly in the case where it is not police, but, rather, their confidential informants, who can identify the defendant as a perpetrator.  The Court's decision will likely balance the policy goals underlying the need for preliminary hearings to proceed with actual evidence, and the desire for law enforcement to conduct certain investigations via informants, and will no doubt impact how those investigations are conducted for decades to come.

Precedential Opinions

In Re: Prospect Crozer from the Delaware Co. Brd. of Assmt., 37-70 MAP 2023 (Opinion by Donohue, J.) (holding a senior-status judge's violation of the constitutional requirement that he not sit on municipal boards did not automatically forfeit his judicial office, but did create a conflict of interest requiring that his decision in the case be vacated)

• See also Concurring Opinion by Mundy, J.

Kleinbard v. Lancaster Co. DA, 101 MAP 2023 (Opinion by Dougherty, J.) (reversing the Superior Court's determination that an agreement between a district attorney and a law firm was void ab initio as a matter of law)

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Donohue, J.

Commonwealth v. Murchison, 13 EAP 2024 (Opinion by Wecht, J.) (holding that postconviction DNA evidence is subject to the same after-discovered evidence test as other evidence)

Allocatur Grants

In the Interest of: G.G.B., 292 WAL 2024 (granting review to consider the appropriate standard for determining initial venue of a child-dependency proceeding where the child is born dependent in a county in which neither parent resides)

Commonwealth v. Strope, 354 MAL 2024 (granting review to consider whether the Commonwealth can establish a prima facie case of a defendant's identity via a confidential informant's hearsay declaration)

Erie Insurance Co. v. Heater, 301 MAL 2024 (granting review to consider notice-of-injury requirements of the workers' compensation act)

Commonwealth v. Serrano-Delgado, 576 MAL 2023 (granting review to consider whether an evidentiary rule precluding cross-examination of character witnesses about criminal conduct not resulting in convictions applies to criminal conduct resulting in an adjudication of delinquency)

700 Pharmacy v. Bureau of Workers' Comp., 274-278 MAL 2024 (granting review to consider conflict-of-interest referral provisions of the workers' compensation act as applied to pharmacies)

November 2024 Docket Review

This month on SCOPAblog, the Court issued 3 opinions and 11 allocatur grants.  On the opinion side, the headline-getter is clearly Crawford, in which the plaintiffs raised a series of what could be called creative challenges to state laws preventing localities from enacting gun-safety regulations.  In an opinion authored by Justice Brobson, and with an increasingly rare unanimous joinder of the other Justices, the Court rejected the claims.  But along the way, Justice Brobson capably discussed a number of areas of law that are frequently at play: the intersection between the General Assembly and local governments generally, the intersection the General Assembly and Home Rule municipalities, existing state regulation of firearms, and the fundamental constitutional right to bear arms.  The opinion is sure to serve as a primer for attorneys litigating related issues in the future. 

Also notable is Saunders, in which the Court declined to extend an earlier decision holding that warrantless searches of automobiles violate the Pennsylvania constitutional right to be secure from unreasonable searches and seizures to a warrantless seizure of an unsecured firearm.  At the conceptual level, it is difficult to square that a warrantless search of a vehicle is unconstitutional, but a warrantless entry into the vehicle and seizure of an item therein is, a point that Justice Donohue in dissent ably makes.  Saunders represents a more holistic conception of privacy interests and state intrusion.

Finally, in two summary dispositions, consistent with its decisions in October, the Court effectively stopped election litigation from having effect in Pennsylvania for purposes of the 2024 Presidential Election, with different degrees of temper in expressing the point.  In a concurring statement regarding one of the orders, Justice Dougherty identifies in no uncertain terms that the Court's increasing reluctance to weigh in comes from the proliferation of election litigation generally and the breakneck pace at which it is conducted.  Although both of these factors are somewhat endogenous to holding elections in a highly-contested jurisdiction in a highly-contested election, it is true that there is also some gamesmanship at play.  That said, the increased reticence during elections is a marked difference as compared to even a few years ago, and there is room for sympathy for litigants attempting to properly time election matters, whose interests may not accrue or be clear until well into campaign season, given that there are weeks of early voting before elections that occur every six months, and given that interests may expire and issues become moot after voting has occurred.  In all events, the Court has signaled that it intends to address a number of election issues in due course, which will allow it to deliberate thoughtfully, give advice for prospective elections, and issue decisions outside the context of clear partisan interests.  On balance, the practice may be worse for candidates, but better for democratic legitimacy. 

Precedential Opinions

Crawford v. Commonwealth, 19 EAP 2022 (Opinion by Brobson, J.) (rejecting challenge to state preemption of certain local gun-safety regulation)

Commonwealth v. Saunders, 20 EAP 2023 (Opinion by Dougherty, J.) (holding an officer may conduct a warrantless seizure of a firearm observed in plain view in an automobile during a traffic stop)

• See also Concurring Opinion by Todd, C.J.

• See also Dissenting Opinion by Donohue, J.

Alcatel-Lucent USA Inc. v. Commonwealth, 8 MAP 2023 (Opinion by Wecht, J.) (holding earlier decision declaring a corporate tax deduction unconstitutional and its reasoning should be applied prospectively)

• See also Concurring Opinion by Mundy, J.

• See also Concurring Opinion by McCaffery, J.

• See also Concurring and Dissenting Opinion by Todd, C.J.

• See also Dissenting Opinion by Brobson, J.

Allocatur Grants

Commonwealth v. Fitzpatrick, 273 MAL 2024 (granting review to consider the lower court's analysis of a challenge to the admissibility of expert opinions not articulated to a reasonable degree of certainty)

In Re: Dravo LLC,  125 - 126 WAL 2024 (granting review to consider the lower court's analysis of a challenge to corporate veil piercing in the context of a dissolved entity)

Office of AG v. Gillece, 209 WAL 2024 (granting review to consider consumer protection claims related to home improvement contract cancellation)

In Re: Smith, 13 - 14 EAL 2024 (granting review to consider statutory authority and standards for motions of return of property in a case where the owner was not convicted of the underlying crime)

Commonwealth v. Sutton, 299 MAL 2024 (granting review to consider whether the Commonwealth can establish a prima facie case of a defendant's identity with hearsay in cases involving confidential informants)

Aloia, & Stimson, Pets. v. Diament Building Corp., 292 MAL 2024 (granting review to consider the appropriate analysis for whether construction was lawfully performed for purposes of the applicable statute of repose)

Miron v. Delaware Co. Tax Claim Bur., 223 MAL 2024 (granting review to consider the proper notice for mortgagees who hold mortgages on property subject to upset tax sale)

Balfour Beatty Comm v. Penn Patriot Ins., 60 EAL 2024 (granting review to consider the proper characterization of equitable estoppel as a legal or equitable defense in the insurance context and the appropriate standards for certified appeals)

In the Int. of: S.B., 314 - 315 EAL 2024 (granting review to consider a challenge to the admissibility of certain school records and the sufficiency of the evidence in a truancy case)

Alsyrawan v. DHS, 289 MAL 2024 (granting review to consider the lower court's analysis of First Amendment Free Exercise and Pennsylvania Religious Freedom Protection Act claims)

Thomas v. Sysco Foods, 151 & 156 EAL 2024 (granting review to consider the lower court's analysis of the burden of proof of to prove available alternative work in a workers' compensation case)

October 2024 Docket Review

It's election season, folks, and the docket shows it.  In terms of opinions and other dispositions, mail-in ballots are the star this month.  For those who have been residing under a rock for the last five years, Act 77 of 2020 was a bipartisan (or, rather, bipartisan compromise) bill that made a number of changes to our Election Code.  Chief among the compromise positions were an end to straight-party-ticket voting, a longtime Republican goal which they view as helpful in breaking machine politics, and the advent of no-excuse mail-in voting, a longtime Democratic goal which they view as helpful in increasing turnout, which has historically benefited them.  (Act 77 did have some truly bipartisan provisions, such as precluding those voting for write-in candidates, which effectively gives each party more control and makes write-in candidacy even harder than it already is, and nonpartisan provisions such as funding, recordkeeping, and other provisions.)  And during the 2020 election, which was campaigned, conducted, and counted at the height of the coronavirus pandemic, mail-in ballots became politicized.  Republicans, largely fueled by then-President Trump, not only more frequently accepted conspiratorial narratives about the pandemic and viewed it as less serious, and therefore were less inclined to avoid in-person voting, but also viewed mail-in balloting as susceptible to fraud by political actors over-voting and election officials under-counting (albeit many states have had mail-in balloting, even exclusively mail-in balloting, for decades, and there has never been any evidence of widespread fraud, and the vast majority of individual instances of fraud actually favored Republicans).  Democrats, more concerned about the pandemic, saw no problem.  Thus, in 2020 and in subsequent elections, there has been a gap: Republicans are far more likely to vote in-person, and Democrats are more likely to vote by mail, albeit that gap is decreasing as Democrats feel more comfortable returning to the polls in light of the waning pandemic and Republicans feel more comfortable voting by mail in light of party and candidate reassurance and, one imagines, experience.

Against this backdrop, the Court has been attempting to clarify the interstices of what is, regardless of all the hue and cry, a new law with gaps that need to be filled.  There are numerous requirements for mail-in ballots that are designed to prevent fraud, while others are perfunctory, and the law is unclear as to which are which.  For example, the requirement that a voter place his or her ballot in a security envelope is the former: it is designed to ensure that those in the chain of custody do not inspect the ballot's contents and interfere.  But others, like the requirement to use an outer, return envelope, or to date a declaration on that envelope, seem to have little to do with election integrity.  The task is made all the more difficult by the fact that the statute is not the end of the inquiry: administrative deference to state and local election authorities, federal voting-rights legislation, the Pennsylvania Constitution, and the United States Constitution must all be brought to bear.  And politics being what it is, parties to litigation have something of a wider scope of what they are willing to argue as compared to other areas of litigation.

The pressure could not be higher, either.  The 2024 presidential election is perhaps the most acrimonious and consequential one in recent history, and Pennsylvania appears to be poised to be the keystone not only for whoever wins the Presidency, but also potentially for control of the Senate. Polling indicates a statistical tie between former President Trump and Vice-President Harris and a close race between Senator Bob Casey and candidate Dave McCormick, and, in the 2024 primary, 1.22% of mail-in ballots were rejected.

The big questions are whether and which of these requirements, in the final accounting of all the legal questions, require rejection of a ballot, whether and to what degree counties must, or may, advise voters ahead of time that their ballots have been rejected, and whether and to what degree a voter can do anything about it.

This month gives us an answer, at least, to the last question, at least for purposes of this election.  In Genser, the Court held that once a voter learns that his or her ballot has been rejected, he or she is eligible to cast a provisional ballot.  (Republicans have appealed the issue to the United States Supreme Court under the mostly-discredited independent-state-legislature theory, and are unlikely to prevail).  The Court's decision in this regard does not upset any ongoing election procedures because, whatever voters thought before, they can show up to the polls next Tuesday and cast a provisional ballot.

And there would seem to be an answer to part of the second question forthcoming, albeit perhaps not by this election.  In Center for Coalfield Justice, the Court has taken up a Washington County judge's order requiring certain notice-and-cure procedures as a state constitutional matter.  (The Republican National Committee case sought King's Bench jurisdiction over a similar issue, but was dismissed on the basis of laches).  But even if the Court issues its opinion today, it seems highly unlikely that it could, as a purely practical matter, ensure that every county elections board that doesn't have notice-and-cure procedures notify roughly 1% of voters in a Presidential election to come cure their ballots before Tuesday, or, contrariwise, find out which voters cured ballots and invalidate those ballots.

But the first question has been elusive.  Earlier this year, two Commonwealth Court cases invalidated several of the requirements as illegal and unconstitutional, but the Court dismissed them on jurisdictional grounds based on the petitioners' failure to join necessary parties.  Perhaps because of this, the petitioners in New PA Project sought King's Bench review to answer it, but the Court refused to intervene in an extraordinary fashion.  Although the Court's stated rationale in its per curiam order is that there is an election ongoing, several other Justices identified the then-pendency of Genser and Center for Coalfield Justice, the complexity of the question, and the petitioners' allegedly untimely advancement of their claims as informative of their decision.  Chief Justice Todd authored a dissenting statement emphasizing the importance of the franchise and, put bluntly, democracy.

The Court's reticence on this question is somewhat perplexing.  As a preliminary matter, like Genser, its addressing the issue now would not have had a disruptive effect on the election.  Indeed, all of the primary conduct under its sweep has already occurred: voters are going to complete and mail in their ballots, whatever defects there are.  If they are not arguably defective, they can be counted.  If they are arguably defective, they, and any Genser provisional ballots with them, can be sequestered, with the valid ballot determined and counted.  Additionally, the Court has significant experience addressing highly complex questions of election law in a tight timeframe, most notably its 2018 decision in League of Women Voters v. Commonwealth, addressing the issue of highly partisan gerrymandering, a question so difficult that the United States Supreme Court has determined is too difficult for it to answer at all.  Indeed, that the issue was briefed and decided by the Commonwealth Court months ago, albeit the Court did not review it at that time due to jurisdictional defects, adds to the point: although the petition sought King's Bench jurisdiction, the Court has the benefit of two robust decisions of lower courts that have exhaustively addressed the issue.  And suffice it to say that the petitioners' attempts to resurrect the issue after the jurisdictional problems came to light do not exactly scream out for application of laches.

What's more, the decision could only serve to simplify the law and the administration of the election.  If the requirements are unconstitutional, more mail-in ballots would be counted, fewer notices to cure would be necessary, and fewer provisional ballots would be necessary. And in the end, Chief Justice Todd's dissenting statement capably underscores proverbial forest notwithstanding the trees: the Court can resolve the issue in time to protect Pennsylvanians' right to vote, if it is implicated, and the democratic legitimacy of the upcoming election, now.  Although it is true that the question is a thorny one, about 1 in 100 Pennsylvanians' right to vote, and, with them, the Presidency, the Senate, and myriad downballot races are in the balance.

Apart from the election docket, I want to highlight a Rules Change that may be important for most practicing attorneys: the Court has amended numerous Rules of Professional Conduct that attempt to conform the ethics rules governing misleading statements, advertising and solicitation, and similar matters to the modern era, including more specific rules regarding firm name and structure, specialization, advertising and solicitation on the Internet, and so on.  Some are merely illustrations of earlier rules, or codifications of caselaw or informal guidance, but some are unexpected.  Since Halloween is over, read them at the link below to keep the scary prospect of a call from the Disciplinary Board at bay.    

Precedential Opinions

In Re: The 30th County Investigating Grand Jury, 15 EM 2022 (Majority Opinion by Mundy, J.) (holding a supervising judge of an investigating grand jury erred in releasing a report, rejecting an argument that it related to unlawful activity under color of law on the ground that it did not explain the unlawfulness of the activity, rejecting an argument it made policy recommendations because as a whole it was not public-policy focused, and further holding that any named, unindicted person criticized in an investigating grand jury report has a constitutional right to reputation that requires he or she be afforded notice and an opportunity to respond prior to the release)

• See also Concurring Opinion by McCaffery, J.

• See also Dissenting Opinion by Donohue, J.

Commonwealth v. Jones, M., 31 EAP 2021 (Majority Opinion by Donohue, J.) (holding that the admission of a non-testifying co-defendant's "redacted" confession that nevertheless clearly identified the defendant as a co-actor violated the defendant's Confrontation Clause rights notwithstanding recent United States Supreme Court precedent narrowing the right)

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Todd, C.J.

Commonwealth v. Strunk, 96 MAP 2023 (Majority Opinion by McCaffery, J.) (holding that contact for purposes of the offense of unlawful contact with a minor must be communicative in nature)

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Mundy, J.

Commonwealth v. Lear, 90-92 MAP 2023 (Majority Opinion by Dougherty, J.) (holding that delays caused by judicial emergency operations during the initial phase of the coronavirus pandemic do not constitute "judicial" delay for purposes of a criminal defendant's right to a speedy trial)

• See also Dissenting Opinion by Wecht, J.

Commonwealth v. Smith, 92 MAP 2021 (Majority Opinion by Todd, C.J.) (holding that the admission of a non-testifying co-defendant's "redacted" confession that did not clearly identify the defendant as a co-actor did not violate the defendant's Confrontation Clause Rights)

• See also Concurring Opinion by Wecht, J.

Martin v. Donegal Twp., 24 WAP 2023 (Majority Opinion by Dougherty, J.) (holding that a statute permitting the reorganization of second-class township boards of supervisors to boards with fewer supervisors does not violate constitutional provisions permitting the General Assembly to remove civil officers from office)

• See also Concurring Opinion by McCaffery, J.

Genser v. Butler Brd. of Elec., 26 & 27 WAP 2024 (Majority Opinion by Donohue, J.) (holding that a voter who learns his or her mail-in ballot has not been counted due to defects may cast a provisional ballot)

• See also Concurring Opinion by Dougherty, J.

• See also Dissenting Opinion by Mundy, J.

• See also Dissenting Opinion by Brobson, J.

Commonwealth v. Rivera, 800 CAP (Majority Opinion by Brobson, J.) (vacating an order denying postconviction relief and remanding for timeliness analysis on the ground that the trial court's analysis was conclusory)

Allocatur Grants

Precht v. UCBR, 35 MAL 2024 (granting review to consider the validity of the "positive steps" test for self-employment for purposes of unemployment compensation)

State College Area SD v. DHS, 580 MAL 2023 (granting review to consider the Department of Human Services' jurisdiction over the State College Area School District's Community Education Extended Learning Program)

Commonwealth v. Belgrave, 154 WAL 2024 (granting review to consider whether a trial court erred in permitting the Commonwealth's questioning of an alleged co-conspirator with foreknowledge that he would invoke his privilege against self-incrimination) 

Commonwealth v. Harrison, 111 MAL 2024 (granting review to consider whether the Superior Court misapprehended and/or misapplied the standard of review of a motion for nolle prosequi)

Commonwealth v. Steadly, 154 EAL 2024 (granting review to consider whether the validity of an arrest warrant must be proven to establish resisting arrest where the arrest is predicated on the warrant)

T.M.H. v. J.&K.L., 221 WAL 2024 (granting review to consider grandparent standing in custody actions)

Commonwealth v. Osman, 189 MAL 2024 (granting review to consider whether a defendant convicted of sex offenses must be sentenced to mandatory reentry supervision)

Honey v. Lycoming Co. Voter Svcs., 163 MAL 2024 (granting review to consider several issues relating to cast-vote records and their disclosure under the Right-to-Know-Law)

Ctr. for Coalfield Justice v. Wash. Co., 259 WAL 2024 (granting review to consider whether county boards of elections must notify voters that their mail-in ballots are defective and provide them an opportunity to cast a provisional ballot)

Other

Bass Pro Outdoor World, LLC v. Harrisburg Mall L.P., 8 MAP 2024 (per curiam) (dismissing appeal as improvidently granted)

• See also Dissenting Statement by Wecht, J. (opining against purely discretionary dismissals of appeals as improvidently granted)

Samsung Fire and Marine Ins. Co. v. RI Settlement Trust, 49 EM 2024 (granting review to consider whether and under what circumstances an insurer's duty to defend and/or indemnify is abrogated in the context of the insured's alleged sex-trafficking)

New PA Project Educ. Fund v. Schmidt, 112 MM 2024 (refusing to exercise King's Bench jurisdiction over claims challenging date requirements on mail-in ballots as violative of the right to free and equal elections on the ground that the election is ongoing)

• See also Concurring Statement by Brobson, J. (emphasizing the petitioners' delay in bringing the petition)

• See also Concurring Statement by Donohue, J. (emphasizing pending cases about the requirements and circumspection about resolving the constitutional question prior to their disposition)

• See also Dissenting Statement by Todd, C.J. (emphasizing the importance of the issue to the right to vote and the proper conduct of the upcoming election)

Republican National Cmte. v. Schmidt, 108 MM 2024 (refusing to exercise King's Bench or Extraordinary Jurisdiction over claims challenging some counties' notice-and-cure procedures for defective mail-in ballots on the ground of laches)

• See also Concurring Statement by Brobson (reiterating that the election is ongoing but suggesting litigation prior to the next election)

In re: Amendment of Rules 5.5, 7.1, 7.2, 7.3, 7.4, 7.5, and 7.7 of the Pennsylvania Rules of Professional Conduct, 252 Disciplinary Rules Docket (per curiam) (amending numerous ethics rules relating to misleading statements in the areas of firm names and structure, specialization, endorsements, advertising, social media, and the like)

September 2024 Docket Review

This month, the court issued 11 opinions and 5 allocatur grants.

On the opinion side, there is a lot to process this month.  For starters, regarding Ungarean, commercial liability insurers the Commonwealth 'round are likely breathing a sigh of relief.  The case, which arose after the early-pandemic business shutdowns, primarily centered on whether insurers would be reliable for business interruption, which depended largely on whether one accepted a creative legal theory that the shutdowns caused physical loss of the shutdown facilities.  Although the question was arguably close because insurance policies are supposed to be interpreted liberally in favor of coverage, the Court unanimously held that the policies plainly did not apply to those kinds of losses.

Although Ungarean is probably the most financially important decision this month, Krasner* might be the most constitutionally significant.  In that case, the House of Representatives of an earlier iteration of the General Assembly had issued Articles of Impeachment against Philadelphia County District Attorney Larry Krasner on the eve of a new General Assembly (in which Democrats appeared poised to take control of the House, but not the Senate), and the Senate of the ensuing iteration of the General Assembly attempted to bring those Articles to a trial.  The District Attorney raised three challenges: first, that like all other General Assembly business, the Articles lapsed when a new General Assembly took office; second, that the General Assembly did not have authority to impeach a District Attorney; and third, that the Articles, which principally focused on Krasner's progressive prosecution priorities, did not amount to constitutionally impeachable conduct.  After the Commonwealth Court issued something of a scrum of opinions, the Supreme Court held that the Articles had lapsed, and did not address the two remaining issues.  The decision is important in terms of its interpretation of the Impeachment Power, to be sure, but perhaps more important because of what it implies about Pennsylvania's government: that the General Assembly and its subsidiary bodies derive their authority from the voters at each election, when they effectively adopt a new government and divest the old government of power.  In my view, this is the bedrock of a democratic republic, and it is good to see the point underlined.

Finally, I would be remiss if I did not mention that, in Anderson, in which the Court affirmed a sentence of death in a capital case, Justice McCaffery authored a short concurrence appearing to imply that the death penalty is categorically unconstitutional, albeit reserving an expression of why for future cases, and clearly indicating a view that it may be unconstitutional as currently administered because a capital defendant's quality of (usually appointed) counsel is almost always woefully deficient to the point that whether he is sentenced to death is effectively arbitrary and random.  As Justice McCaffery explained in the opinion, this latter view was repeatedly, if somewhat more obscurely, expressed by Chief Justice Emeritus Saylor while he was on the Court, and it is interesting to see Justice McCaffery not only picking up the proverbial baton, but taking it 20 years further down the field.  It will be more interesting to see whether, in future cases, he can gain the purchase of fellow Justices for some version of procedural or even substantive abolition.

On the allocatur side, I am most interested in Genser.  In recent weeks, the court has been striving mightily to process a glut of election-related decisions in advance of what appears likely to be a contentious 2024 general election.  In the past, these decisions have often come in the form of a short per curiam order deciding the issue, and a more developed opinion to follow several months later, but this process has shortcomings, to be sure, in that it reveals a degree of post-hoc rationalization.  Still, whatever limits that creates on legitimacy of the Court's decisions, the Court may find them to be outweighed by the effect that legal uncertainty creates on legitimacy of the Commonwealth's elections.  Prior to the election, essentially any rule will do in a pinch.  After the election, disputes over which rules should and should not have been followed almost invariably come with partisan recriminations.  It will be interesting to see how the Court acts in the few short weeks it has to make the rulebook clear.

Precedential Opinions

In re: Estate of Caruso, 14 WAP 2023 (Opinion by Todd, C.J.) (holding a partner's spouse may not assume and enforce the partner's rights under a partnership agreement)

In re: Canvass of Provisional Ballots in the 2024 Primary Election, 55 MAP 2024 (Opinion by Mundy, J.) (holding the requirement to sign a provisional-ballot outer envelope is mandatory and failure to comply precludes counting the vote, and that a voter who moved within 30 days of the election was entitled to vote in his prior district)

• See also Concurring Opinion by Wecht, J.

• See also Concurring and Dissenting Opinion by Donohue, J.

Commonwealth v. Walters, 102 MAP 2022 (Majority Opinion by Todd, C.J.) (holding that an expert's opinion as to cause of death predicated solely on reported history was inadmissible)

• See also Concurring Opinion by Wecht, J.

• See also Concurring and Dissenting Opinion by Dougherty, J.

• See also Dissenting Opinion by Mundy, J.

Ungarean v. CNA, 11 WAP 2023 (Opinion by Brobson, J.) (holding that commercial insurance policies for physical loss or damage did not cover coronavirus-related business-interruptions)

Krasner v. Ward, 2 EAP 2023 (Majority Opinion by Todd, C.J.) (holding that Articles of Impeachment passed by the House of one General Assembly do not carry over for trial by the Senate of a subsequent General Assembly)*

• See also Concurring Opinion by Wecht, C.J.

• See also Concurring and Dissenting Opinion by Mundy, J.

Commonwealth v. Anderson, 801 CAP (Opinion by Todd, C.J.) (affirming judgment of sentence in a capital case)

• See also Concurring Opinion by McCaffery, J.

Commonwealth v. Thomas, 808 CAP (Opinion by Donohue, J.) (affirming denial of postconviction relief in a capital case)

Commonwealth v. Berry, 16 EAP 2023 (Opinion by Wecht, J.) (holding prior arrests not leading to conviction are impermissible considerations at sentencing)

Circle of Seasons Charter Sch. v. Northwestern Lehigh Sch. Dist., 99 MAP 2022 (Opinion by McCaffery, J.) (resolving several issues in property tax reassessment appeals)

• See also Concurring Opinion by Mundy, J.

Pearlstein v. Slogoff, 21 MAP 2023 (Opinion Announcing the Judgment of the Court by Donohue, J.) (opining that income from like-kind exchanges of real property is taxable at the time of exchange)

• See also Concurring Opinion by Dougherty, J.

• See also Dissenting Opinion by McCaffery, J. 

Commonwealth v. Yard, 11 MM 2023 (Majority Opinion by Mundy, J.) (holding Pennsylvania-constitutional bail provision does not require an evidentiary showing to detain an individual charged with capital or life-sentence-eligible offenses without bail)

• See also Concurring Opinion by Wecht, J. 

• See also Dissenting Opinion by Todd, C.J.

• See also Dissenting Opinion by Donohue, J.

Allocatur Grants

Commonwealth v. Riley, 596 MAL 2023 (granting review to consider whether Superior Court caselaw holding that a person who trades drugs for a gun has good reason to believe the gun is stolen violates earlier cases foreclosing factual presumptions of that sort)

Genser v. Butler Cnty. Bd. of Elections, 240 WAL 2024 et al. (granting expedited review to consider two issues related to mail-in ballots)

Commonwealth v. Black, 72 MAL 2024 (granting review to consider whether the Superior Court creates uncertainty in the statute of limitations where it used an improper start date and improperly held Petitioner's engagement in the offense)

Commonwealth v. Hitchner, 462 MAL 2023 (granting review to consider whether an arrest warrant for probation violations tolls the period of probation where the violations are subsequently unproven)

City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 37 EAL 2024 (granting review to consider the continued vitality of the narrow scope of review for a police grievance arbitrator's decision)

(*) The undersigned was counsel for an Intervenor aligned with the District Attorney's position in Krasner.

August 2024 Docket Review

This month on SCOPAblog, the court issued 4 precedential opinions and 6 grants of allocatur. 

On the opinion side, the most interesting case is Oberholzer, and in a walk.  In that case, the Galapos, having been subjected to anti-Jewish hate speech by their neighbors, the Oberholzers, began to festoon their property line with the Oberholzers with signs decrying racism, anti-Jewish hate, and the like.  The Oberholzers claimed the signs were defamatory and otherwise tortious and sought and obtained an injunction directing the Galaops to turn their signs around, away from the property line.  The issue before the Court in Oberholzer is whether Pennsylvania's state-constitutional guarantee of free speech, more broadly than its federal counterpart, prohibits such an injunction, and the Court, in an opinion authored by Justice Dougherty and joined by Chief Justice Todd, and Justices Donohue and Mundy, concluded that it does.  The court in this regard firmly regirded the principle that, in general, where speech offends, the appropriate response is more speech (or not to listen at all), even where other reasonable individuals, including Justices Wecht and Brobson in dissent, might view the speech as impacting other interests, such as reputation or the quiet enjoyment of one's property.  The Court's opinion is not one-size-fits-all, and contains a number of caveats, but represents something of a watermark for Pennsylvania free speech jurisprudence.  

On the allocatur side, I, joined by most of the civil bar, am most interested in Chilutti.  In that case, the Court will address the appealability of orders compelling arbitration as collateral orders and the enforceability of certain Internet-based arbitration agreements after a Superior Court decision effectively eviscerating them.  Although the Court has been (or, at least, various, case-by-case majorities of the Court have been) generally plaintiff-friendly in the last several years, Chilutti may be a bridge too far.  Whatever one's view of the collateral order doctrine, holding orders compelling arbitration to be collateral would effectively blunt the point of arbitration agreements -- i.e., to avoid litigation -- and vast sectors of the economy, and particularly the online economy, rest on the enforceability of Internet-based arbitration agreements.  It will be interesting to see how the Court views the law, but more interesting to see how its view is tempered by the consequences of particular interpretations. 

Additionally, although this is SCOPABlog, not CCOPABlog, I would be remiss if I did not mention the Commonwealth Court's August 30 opinion in Black Political Empowerment Proj. v. Schmidt, 283 M.D. 2024 (Pa. Cmwlth. 2024), which holds that the Election Code's requirement that voters date the outer envelope of mail-in ballots violates Pennsylvanians' right to vote and to free and equal elections.  The opinion is something of a sequel to a February 2023 decision of the Pennsylvania Supreme Court holding that the provisions are mandatory, but leaving other questions, such as the state constitutional claim addressed here, and certain issues of federal civil rights law, for another day. 

Two points here.  First, it is worth noting that the Commonwealth Court panel was composed of two judges who were elected as Republicans and three who were elected as Democrats, whereas the full court is composed of five judges elected as Republicans and four elected as Democrats.  Preliminarily, this author is often perplexed at how, precisely, the Commonwealth Court divines how many, and which, judges will sit on a particular case.  But more to the point, the opinion was joined by President Judge Renee Cohn Jubelirer, the elected-as-a-Republican leader of the court who in recent years has been widely recognized as more focused on the court's legitimacy and deliberativeness and the quality of its work than the more parochial questions involved in particular cases.  All of this to say that anyone looking to a judge's political orientation or party when elected to predict votes is engaged in folly.  Judicial ideology is different than political ideology.

Second, I would expect that the parties and the Supreme Court are bracing to address this issue post-haste.  We are roughly 60 days from a presidential election in which Pennsylvania may well be the tipping-point state and in which polls suggest the presidential race is neck-and-neck.  We are roughly 15 days from counties beginning to send out (and voters beginning to send in) mail-in ballots.  And, despite one Washington County trial judge's efforts, it is not totally clear whether counties are permitted to tell voters that they have made mistakes on ballots in lieu of discarding them entirely.  One imagines the Court wants to work quickly to definitively resolve the issue, particularly inasmuch as this year's election season seems almost inexorably bound to lead to election-litigation-season.  

Precedential Opinions

Velasquez v. Miranda, 108 MAP 2023 (Majority Opinion by Dougherty, J.) (holding as a matter of federal immigration law that a child who is the subject of custody proceedings that result in sole custody being awarded to the parent presently in the United States may seek Special Immigrant Child determinations in that custody proceeding)

• See also Concurring and Dissenting Opinion by Wecht, J.

• See also Dissenting Opinion by Brobson, J.

Bold v. Dept of Trans Bur of Driv Licen, 36 MAP 2023 (Majority Opinion by Wecht, J.) (holding that where an officer comes upon an intoxicated individual sleeping in a running vehicle, he lacks reason to believe the individual is operating or in actual physical control of the vehicle for purposes of DUI-related license suspensions)

• See also Concurring Opinion by Dougherty, J.

• See also Dissenting Opinion by Mundy, J. 

Wolfe v. Reading Blue Mtn, 73-74 MAP 2023 (Majority Opinion by Dougherty, J.) (holding that a railroad company's condemnation of private property for the benefit of a single private business was an unlawful condemnation)

• See also Concurring Opinion by Wecht, J.

• See also Concurring Opinion by Mundy, J.

Oberholzer v. Galapo, 104 MAP 2022 (Majority Opinion by Dougherty, J.) (holding an injunction against a landowner's display of anti-racist signs in his yard in response to anti-Jewish epithets by his neighbor violated Pennsylvania's constitutional right to free speech)

• See also Dissenting Opinion by Wecht, J.

• See also Dissenting Opinion by Brobson, J.

Allocatur Grants

Commonwealth v. Jenkins, 185 MAL 2024 (granting review to consider whether a prosecutor's impeachment of a defendant via his pre-arrest silence is subject to harmless error analysis)

Federated Ins. Co. v. Summit Pharmacy, 61 MAL 2024 (granting review to consider the proper valuation of pharmaceutical products for purposes of the Workers' Compensation Act)

Commonwealth v. Fountain, 149 MAL 2024 (granting review to consider the effect of a defendant's forfeiture, rather than waiver, of counsel at his first two trials on his right to counsel at his third)

Chilutti. v. Uber Technologies, 257 EAL 2023 (granting review to consider the appealability of orders compelling arbitration and the legal standard governing online arbitration agreements)

Martinez v. Lewis Tree Svcs, 129 MAL 2024 (granting review to consider the intersection and applicability of the "going and coming rule" and "no fixed place of work" exception thereto for purposes of the Workers' Compensation Act)

Gustafson v. American Federation of State, 102 WAL 2024 (granting review to consider several issues in a public-employee labor dispute)

July 2024 Docket Review

This month on SCOPAblog, the court issued 5 precedential opinions and 16 grants of allocatur.  On the opinion side, although the docket may look a bit dry this summer (much like this summer), the Court's decision in Shirley contains something of a hidden aquifer for appellate enthusiasts.  In the opinion, the Court addresses several questions regarding nonprofit standing, the right to intervene, and the appealability and standard of review of orders denying intervention.  In short, the opinion appears to envisage a fairly broad right of intervention for nonprofits, whose agendas often depart from individual litigants and, particularly, sometimes-captured administrative agencies.  This right, as Justice Mundy in a secondary opinion explained, is in some kind of tension with its recent decisions policing intervention by legislators with more scrutiny.  It is unclear at this juncture whether this difference is simple jurisprudential happenstance, or reflect judgments about the relative benefits and burdens created by different classes of intervenors, but, in all events, the opinion provides a good primer for would-be intervenors.

On the allocatur side, I'm most interested in Shivers, which involves whether a defendant's flight from police in a "'high crime' area" can amount to reasonable suspicion that he is engaged in criminal activity for purposes of the Pennsylvania constitutional right to be free from unreasonable searches and seizures.  It is beyond cavil that flight alone does not, but U.S. Supreme Court decisions have held that flight in a "'high crime' area" does, at least for purposes of the Fourth Amendment's protection against unreasonable searches and seizures.  That holding, however, has been roundly criticized.  As an initial matter, and from a libertarian perspective, the idea that a defendant's identical conduct in one area is suspicious when the same conduct elsewhere is not is less than intellectually robust, and is at least adjacent to principles underlying general warrants, the bane to which the protections against unreasonable searches and seizure were adopted to stop. Surely John Adams would find a general warrant for treason against King George just as offensive in patriot-controlled Boston as he would in tory-stronghold Long Island.

Additionally, from a more egalitarian and progressive perspective, efforts to establish that a particular area is a "'high crime' area are largely unworkable.  Our communities have very little systematic collection of crime reporting data, and, even if they did, given that most crimes are obscured effectively, it would primarily show us where police are going, rather than where crimes are occurring.  And a high-murder area may not be a high-sexual-assault area, or a high-drug-activity area, or a high white-collar-crime area.  And how much crime is "high," and compared to what?  Framing, not anything objective, sets up the answer, and can essentially substantiate that anywhere in the United States is a high-crime area in some form or another.  In practice, the inquiry ends up at best centering on what areas the testifying officer views as dangerous based on his anecdotal experience and at worst centering on ideas about which ethnic and socioeconomic groups commit crime.  One prominent criminal defense attorney has been quoted as saying that legally speaking, a "'high crime' area" is anywhere within 10 feet of a person of color or a poor person.  It would appear the Court is up to considering these criticisms and many more that have been leveled against the notion that a person running in the suburbs is a jogger and a person running in the city is a suspect.

I am also interested in seeing the Court resolve In re: Canvass of Provis. Ballots, which may be decided in time to provide guidance for the counting of ballots in the upcoming Presidential election (we need all the guidance we can get); and NHL, which involves the constitutionality of a Pittsburgh tax on nonresidents' use of publicly-funded stadiums as contrary to the Uniformity Clause.  The latter is particularly important insofar as the City of Pittsburgh faces something of a financial cliff, largely due to the commercial-property bust, and is already facing budgetary shortfalls for 2025 and 2026.

Precedential Opinions

Commonwealth v. Stevenson, 23 EAP 2023 (Majority Opinion by Brobson, J.) (holding that a defendant who unsuccessfully seeks exclusion of evidence prior to trial and then preemptively introduces it at trial may nevertheless challenge its admissibility on appeal)

Shirley v. PA Legislative Reference Bureau, 85 & 87 MAP 2022 (Majority Opinion by Dougherty, J.) (holding that order denying environmental nonprofits intervention in challenge to environmental rulemaking was an appealable collateral order, that the nonprofits' claim for intervention was not moot given continuing litigation over the rulemaking, and that the order was predicated on an error because the nonprofits raised an "obvious, possibly meritorious, and potentially beneficial" argument under the Environmental Rights Amendment)

• See also Concurring Opinion by Donohue, J.

• See also Concurring and Dissenting Opinion by Mundy, J.

• See also Concurring and Dissenting Opinion by Brobson, J.

Stadium Casino RE LLC, Pet v. Pa Gaming Control Bd, 20 MM 2023 (Majority Opinion by Donohue. J.) (affirming grant of gaming license and rejecting claim that certain auction procedural requirements are jurisdictional in nature)

AUUE, Inc. v. Boro of Jefferson Hills ZHB, 28 WAP 2022 (Majority Opinion by Brobson, J.) (holding a zoning officer had the right to issue use permits, and that in cases involving only that question, a zoning hearing board must limit its review of such permits to the substantive question of whether the use is permitted in the particular district)

MFW Wine Co. LLC, et al. v. PA LCB, 75 & 76 MAP 2022 (Majority Opinion by Donohue, J.) (holding that the Pennsylvania Liquor Control Board is a person within the meaning of a statute permitting actions against persons for mandamus damages and that sovereign immunity does not protect it from awards for such damages)

Note: The Court also dismissed as improvidently granted the appeal in Cnty. of Northumberland v. Twp. of Coal, 35 MAP 2023, which involved several questions related to tax refund procedures, and ended in a stalemate affirming by operation of law in Sicilia v. API Roofers Advantage Program, 14 MAP 2023, which involved the Commonwealth Court's observance of the standard of review in a workers' compensation case, and Elite Care, Rx v. Premier Comp Solutions, LLC, 25 WAP 2023, which involved the exclusive-remedy provision of the Workers' Compensation Act.

Allocatur Grants

Bell, B., et al. v. Wilkinsburg SD, 75 WAL 2024 (granting review to consider whether the Commonwealth misinterpreted statutory provisions seemingly permitting unequal treatment of public and charter school students in terms of transportation)

Osbourne v. Greenberg, 332 EAL 2023 (granting review to consider whether executors and administrators of estates have standing to challenge findings of death certificates interfering with their respective estates' recovery of damages or compensation)

In Re: Condemn by City of Phila. Airport Bus. Ctr., 22 MAL 2024 (granting review to consider whether the Commonwealth Court elevated form over substance in quashing an appeal based on the trial court's characterization of an order, rather than its substance)

Weatherholtz v. McKelvey, 627 MAL 2023 (granting review to consider whether the Superior Court erred in holding that the new statute of limitations for actions involving sexual assault and intimidation runs from the date of the assault rather than the date of demonstrated continued harm)

In re: Canvass of Provis. Ballots, 328 MAL 2024 (granting review to consider whether an unsigned provisional ballot should be counted because of election-official instructions, and whether a provisional ballot of a voter domiciled and registered elsewhere should be rejected)

Commonwealth v. Smith, 17 & 18 EAL 2024 (granting review to consider whether the Superior Court erroneously held that there was insufficient evidence to establish that off-duty police committed assault crimes)

Gidor v. Mangus, 42 WAL 2024 (granting review to consider whether a statute in the Home Inspection Law is a statute of limitation or repose)

Brown v. Gaydos, No. 12 WAL 2024 (granting review to consider application of co-employee immunity in the context of sole proprietorship employing both plaintiff and defendant)

Commonwealth v. Anderson, 659 MAL 2023 (granting review to consider whether a defendant's burden to establish a reasonable expectation of privacy requires him to show he was permitted to use another's vehicle where the Commonwealth's evidence does not demonstrate to the contrary)

Bredbenner v. Hall, 605 MAL 2023 (granting review to consider whether a contemnor's failure to offer proof of indigency amounts to waiver of the issue of ability to pay)

NHL et al. v. City of Pgh., 53 WAL 2024 (granting review to consider whether the Commonwealth Court erred in ruling Pittsburgh's tax on nonresidents using publicly funded sports facilities violated the Uniformity Clause of the Pennsylvania Constitution)

Erie Insurance Ex. v. United Services Auto, 27 WAL 2024 (granting review to consider whether the Superior Court erred in admitting claim for promissory estoppel which was purportedly a "masked" claim for negligent spoliation of evidence)

Commonwealth v. Shivers, 328 EAL 2023 (granting review to consider whether a rule that flight in a "high-crime area" constitutes reasonable suspicion violates the state constitutional right to be free from unreasonable searches and seizures)

Grant v. Grant, 105 WAL 2024 (granting review to consider issues regarding a quitclaim deed purportedly severing a joint tenancy)

Commonwealth v. Outlaw, 2 EAL 2024 (granting review to consider whether a single act of profane name calling can amount to direct criminal contempt)

In re: Upset Sale TCB Tioga Co. (Ostapowicz), 62 MAL 2024 (granting review to consider whether a county tax sale was valid where the successful bid at auction was a mere 18 percent of appraised fair market value)

June 2024 Docket Review

This month on SCOPAblog, the court issued 3 precedential opinions and 9 grants of allocatur. 

On the opinion side, the Court's two postconviction cases offer glosses on Commonwealth v. Bradley, 261 A.2d 381 (Pa. 2021), in which the Court recognized a procedural path for petitioners in postconviction cases to challenge the stewardship of postconviction counsel: getting new, appellate postconviction counsel and raising former postconviction counsel's ineffectiveness at the earliest opportunity on appeal.  The Superior Court is then to consider whether the claims fail as a matter of law, and, if not, remand for further proceedings in the trial court.  The process in substance shoehorns a new postconviction petition into an appeal and gives it something of a truncated review process.

The difficulty with Bradley has been its implementation.  Questions abound as to how to administer it in a reasonable and nondiscriminatory way.  But after Parrish and Greer, there is a little more illumination.  For example, it has been unclear whether new postconviction counsel should raise Bradley claims in a concise statement of errors complained of on appeal.  It is not typical for litigants to request the trial court's opinion on whether other types of remand -- e.g., a remand for a Grazier hearing to determine whether an appellant wants to proceed pro se -- and, given that a petitioner's Bradley claims are first evaluated as a matter of law, the trial court's input does not change the review.  In Parrish, however, the Court reiterated that Bradley counsel should raise Bradley claims in a concise statement, and, coincidentally related to a different issue, emphasized the importance of appellate courts acting with an adequate foundation for review, not just adjudication.

Similarly, the process to even getting Bradley counsel is confusing.  In Bradley, new counsel was retained.  The Court has not yet made clear whether and to what extend initial postconviction counsel must alert a petitioner as to his ability to raise Bradley claims.  The Court has not yet made clear whether an indigent petitioner has a right to counsel to raise them.  Indeed, the Court has not made clear when to ask.  But Greer provides at least something of a roadmap.  In that case, initial postconviction counsel filed an appeal and was advised by the petitioner that he wished to raise Bradley claims, and, before the Superior Court issued its briefing schedule, sought a remand to allow the petitioner to do so.  The Superior Court denied relief, ultimately affirming the postconviction court's denial of relief and later remanding for Bradley claims.  The Court in Greer held that this was error, and that the Superior Court should have remanded before briefing for a detailed discussion of the petitioner's options.  Like Parrish, Greer seems to reiterate that Bradley was meant to allow something of a brief retreat from ordinary appellate proceedings, not piecemeal litigation.

The Court's conception of Bradley is getting clearer, but it is still far from clear.  I can't imagine that the Court will embrace a holding that only those petitioners with the money to obtain new counsel Bradley claims, much less only those with the legal acumen to research Bradley and bring it up to counsel who do happen to something about it, are entitled to raise Bradley claims, but the Court has been remarkably circumspect in describing the process.  One hopes that it, or its Appellate Rules Committee, are planning something more comprehensive soon.

On the allocatur side, I'm interested in both R.W. and Mezzacappa, which implicate the ever-confounding constitutional right to reputation.  Interestingly, the former involves records of suspensions caused by criminal charges after those charges have been withdrawn and expunged, and the latter involves mug-shots, or photos of criminal suspects taken for booking purposes.  In both cases, the information at issue is not itself necessarily harmful to the reputation, but it does reveal that something harmful to the reputation was alleged (which generally initiates a rumor mill that ultimately harms one's reputation).  It may be possible that the Court is confronted with a choice between the formal and the functional, and it will be interesting to see where it lands.

Precedential Opinions

Commonwealth v. Parrish, 803 CAP (Majority Opinion by Brobson, J.) (remanding a capital postconviction case for advancement and adjudication of claims of ineffective assistance of initial postconviction counsel)

Mertis v. Oh, No. 31 MAP 2023 (Majority Opinion by Mundy, J.) (holding that Rule 4003.6 of the Rules of Civil procedure precludes a defense attorney from obtaining information from a treating physician via a subsequent representation)

• See also Concurring Opinion by Donohue, J.

Commonwealth v. Greer, 87 MAP 2023 (Majority Opinion by McCaffery, J.) (holding the Superior Court erred in addressing the merits of a postconviction petitioner's claims before remanding for a colloquy regarding his ability to raise claims of ineffective assistance of postconviction counsel)

• See also Concurring and Dissenting Opinion by Donohue, J.

Allocatur Grants

Roberts v. Komeau, 145 EAL 2024 (granting review to consider the scope of rules governing interlocutory appeals in a child custody proceeding)

R. W. v. Dept. of Ed., 284 WAL 2023 (granting review to consider whether state education officials are statutorily required to remove references to educator suspensions after underlying criminal charges have withdrawn and expuned, and, if not, whether the statute violates their constitutional rights)

*In re: Three PA Skill Amusement, 7 MAL 2024 (granting review to consider whether skill-games are legally gambling devices for purposes of the Crimes Code)

Housing Auth. City of Pgh. v. Nash, 60 WAL 2024 (granting review to consider whether a public housing authority may evict a tenant because an invitee of both that tenant and another tenant commits a homicide there)

Cicero v. PUC, 568-570 MAL 2023 (granting review to consider several issues related to a wastewater utility)

Downingtown Area SD v Chester Cnty Bd of Assessment, 678-679 MAL 2023 (granting review to consider a case involving selective property tax assessment appeals and the Uniformity Clause)

Met-Ed v. PUC, 557 & 590 MAL 2023 (granting review to consider several issues related to an electric utility and a telecommunications utility)

**Commonwealth v. Smith, 197 WAL 2023 (granting review to consider the unit of prosecution of the offense of arson endangering persons)

Mezzacappa v. Northampton Co., 339-340 MAL 2023 (granting review to consider the discloure of mug-shots under the Criminal History Information Act and Pennsylvania constitutional privacy rights)

-

*The author is counsel for one of the amici curiae in suppot of the Respondent, now Appellee, in this matter

**This author is counsel for the Petitioner, now Appellant, in this matter.

May 2024 Docket Review

This month on SCOPAblog, the court issued 7 precedential opinions and 8 grants of allocatur. 

On the opinion side, I'm most interested in Torsilieri.  In that case, the court faced two challenges to Pennsylvania's sexual offender registration and notification regime: (1) a claim that the statute was predicated on an false, irrebutable presumption that sexual offenders are highly likely to reoffend; and (2) a claim that the statute imposed requirements that were essentially equivalent to probation, were punitive, and were imposed without criminal procedural protections and were cruel and unusual punishment.  A distinguishing factor of the case is that, unlike prior challenges to prior iterations of Pennsylvania's sexual offender registration regimes, the trial court in this matter decided in favor of Torsilieri.

In a majority opinion authored by Chief Justice Todd, the Court reversed the trial court's decision and rejected both claims.  Regarding the first, and noting that it had previously sanctioned a similar claim regarding juvenile sexual offenders who evidence showed were not more likely to reoffend than other juvenile offenders, the Court noted that Torsilieri's own experts conceded that adult sexual offenders were several times more likely to reoffend than other offenders.  Regarding the second, the Court applied the numerous and familiar factors for determining whether a sanction is civil or criminal in nature, and ultimately balanced the factors in favor of a finding that the requirements are civil in nature.  The majority opinion in this regard joined a number of similar opinions in its past sustaining the constitutionality of Pennsylvania's sexual offender regulation regimes.  Justice Mundy authored a concurrence, essentially disagreeing with a portion of the majority's analysis of the aforementioned factors, but agreeing with its analysis overall and its result.

Justices Wecht and Donohue disagreed.  Justice Wecht, for his part, explained his view that sexual registration and notification is the functional equivalent of probation, and, thus, if its requirements are to be imposed, should come with criminal procedural protections.  Justice Donohue put something of a finer point on it.  Regarding the first challenge, Justice Donohue highlighted in somewhat withering prose that the challenge was whether sexual offenders are highly likely to reoffend, not more likely than other offenders to reoffend.  And regarding the second, she underlined aspects of the degree to which sexual offenders are essentially on reporting probation for life.

Torsilieri is the latest in a constellation of challenges to sexual offender registration frameworks in Pennsylvania, and shows that the Court is in something of a moderate posture on the issue.  Torsilieri's showing notwithstanding, it was always an uphill battle to suggest that the General Assembly could not made a legislative determination that sexual offenders are sufficiently likely to reoffend that a registry is warranted, and earlier decisions of the Court essentially staked out a proverbial red line for how far the Legislature could go without risking registration requirements being designated as punitive.  The Court has dutifully enforced constitutional procedural requirements, and been willing to chip at the bluntest instruments of the law, such as registration for juvenile offenders, in the past, but likely believes it has decided the overall question of whether registry in the abstract is legal.  Indeed, the majority opinion is something of a case study in judicial minimalism, questioning but not outright challenging whether challenges to irrebutable presumptions remain viable, limiting its analysis of statistics to those in earlier cases, and saying the minimum regarding the aforementioned factors and how they apply.

Absent a major change in the Court's composition, or yet-further attempts by the Legislature to rachet up the onerousness of sexual offender registration, the issue would appear to be inert for the moment.  That said, future reformers, whatever branch of government they occupy, may find inspiration in the dissents.  The relative recidivism of various classes of reoffenders and whether that warrants such a significant regulatory scheme is certainly more complex than whether one criminal defendant's expert witnesses believe sexual offenders as a class are more recidivist than others.  Indeed, a cynical observer might be inclined to say that the creation of such registries had less to do with recidivism and more to do with political expediency.  And from a defendant's perspective, registering as a sexual offender is equally, if not more, tumultuous an experience than probation or parole, and is equally, if not more, deserving of criminal procedural protections.  But for now, it would appear that change must come from the General Assembly, if from anywhere.

Additionally, I would be remiss if I didn't mention N.W.M.  In that case, the Superior Court in addressing a claim that a guardian ad litem was entitled to quasi-judicial immunity. The Superior Court in rejecting the claim explained that, as an intermediate appellate court, it was not free to expand the doctrine and make policy decisions.  Although affirming, the Supreme Court reminded the Superior Court that it is well within its purview to address novel legal issues, including those that may implicate policy considerations.  Perhaps animating the Court's remark in this regard is the fact that it prefers to have a fulsome exploration of the issues coming before it.  Deciding a novel legal issue with the aid of the opinion of learned judges of an intermediate appellate court is easier.  And denying allocatur because they are correct is easier still.  Perhaps animating the Superior Court's reticence is its quite-cumbersome caseload.  In all events, advocates would do well to raise all their contentions to all of the courts they appear in, notions about what the court and cannot do in its institutional role notwithstanding.

On the allocatur side, I'm most interested in S.W. and Sitler, in which the Court will grapple with challenges to extant family-law doctrines.  In S.W., the question involves a prospective adoptive parent's right to participate in dependency proceedings, which appears to have been at least glancingly undermined by a legislative enactment, and in Sitler, a party has challenged the presumption of paternity outright as antiquated.  In the past, the court has been willing to give base hits, but not home runs, to attempts to modernize family law.  But either way, these cases are likely to impact family law cases considerably going forward.

 Precedential Opinions

MBC Development v. Miller, 1 MAP 2023 (Majority Opinion by Mundy, J.) (holding that a limited partner's challenge to a special litigation committee's report regarding the limited partner's potential claims against a general partner were not within the limited partnership's arbitration agreement)

• See also Concurring Opinion by Donohue, J.

• See also Dissenting Opinion by Wecht, J.

Commonwealth v. Womack, 110 MAP 2022 (Majority Opinion by Mundy, J.) (holding the Commonwealth demonstrated due diligence between the filing of an initial, intra-county complaint, and a second, multi-county complaint in a drug prosecution for purposes of Pa.R.Crim.P. 600)

• See also Concurring Opinion by Donohue, J.

• See also Concurring Opinion by Wecht, J.

Caldwell v. Jaurigue, 30 MAP 2023 (Majority Opinion by Dougherty, J.) (holding that a parent's paramour's gratuitous exercise of physical custody over a child does not render him a parent obligated to pay child support)

• See also Concurring Opinion by Wecht, J.

Commonwealth v. Torsilieri, 97 MAP 2022 (Majority Opinion by Todd, C.J.) (holding that the Sexual Offender Registration and Notification Act does not violate constitutional prohibitions on irrebutable presumptions and that registration is a collateral, civil consequence, rather than a direct, punitive consequence of conviction not subject to the prohibition on cruel and unusual punishments)

• See also Concurring Opinion by Mundy, J.

• See also Concurring and Dissenting Opinion by Wecht, J.

• See also Dissenting Opinion by Donohue, J.

N.W.M. v. Langenbach, 25 EAP 2022 (Majority Opinion by Wecht, J.) (holding that a guardian ad litem is not entitled to quasi-judicial immunity)

• See also Concurring Opinion by Brobson, J.

Commonwealth v. Dowling, 795 CAP (Majority Opinion by Wecht, J.) (holding that a petitioner pursuant to the PCRA failed to establish prejudice)

• See also Concurring Opinion by Donohue, J. 

Commonwealth v. Harris, 31 EAP 2022 (Majority Opinion by Dougherty, J.) (holding that the Commonwealth at a preliminary hearing may not establish the defendant's identity solely via inadmissible hearsay)

• See also Concurring Opinion by Donohue, J.

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Mundy, J.

Allocatur Grants

Commonwealth v. Malcolm, 418 EAL 2023 (granting review to consider whether and under what circumstances a defendant's videotaped interrogation is admissible and what curative efforts must be taken to avoid unfair prejudice)

PSP NE, LLC v. PWAB Pet of: BLLC, 232 MAL 2023 (granting review to consider several issues under the Prevailing Wage Act)

In the Interest of: S.W., 127 WAL 2024 (granting review to consider the continuing viability of the rule that prospective foster parents may participate in dependency proceedings in light of a subsequent legislative enactment)

Sitler v. Jones, 160 MAL 2024 (granting review to consider the continuing vitality of the presumption of paternity and the application of the doctrine of paternity by estoppel in the context of a third-party's apparent paternity)

Commonwealth v. Jenkins, 598 MAL 2023 (granting review to consider the legality of revocation of alternative rehabilitative disposition based on true, if less than candid, respones to application questions)

Simone v. Zakiul Alam, 502 MAL 2023 (granting review to consider whether a tenant in common of real property is an indispensable party in a premises liability case)

Yoder v. McCarthy Const.,127 EAL 2023 (granting review to consider several issues regarding the statutory employer doctrine in workers' compensation cases)

Coleman v. Parkland School District, 644 MAL 2023 (granting review to consider whether changes to an agenda are an exception to the Sunshine Act's notice requirements)

April 2024 Docket Review

This month on SCOPAblog, the court issued 5 precedential opinions and 13 grants of allocatur.

On the opinion side, I'm most interested in Dwyer, in which the Court held that a trial court erroneously refused to award treble damages for the plaintiffs' UTPCPL claims based on the jury's award of punitive damages for the plaintiffs' common-law claims.  In the opinion, Justice Wecht cogently explains that the availability of treble damages serves different (if partially intertwined) purposes than, and was intended to supplement, common-law remedies -- i.e., treble damages are designed as generally remedial, whereas punitive damages are designed to deter -- and so trial courts considering whether to award treble damages should not consider, let alone find controlling, the jury's award of punitive damages.  Justice Brobson, in a concurring and dissenting opinion, suggested that the respective remedies' partially intertwined purposes should permit some consideration, but his view did not carry the day, at least in part because it did not have a fulsome response to the majority's further reasoning that treble damages were intended as supplemental to extant remedies.

The decision is interesting not so much for its holding as for its legal and practical effects.  Legally, the case provides a roadmap for future litigants arguing that statutory damages are their own creature, and, more broadly, that statutory remedies are meant to be supplemental to common-law ones.  Indeed, Pennsylvania's history of UTPCPL interpretation is marked by a somewhat ill-fitting analogy to common law fraud, and the appellate courts over the last ten years or so have begun to unwind it.  And there are certainly other areas of the civil law where the courts have been less than robust in their interpretation of legislatively authorized remedies.  Dwyer is the latest in a series of cases that shows the Court's overall trajectory in the civil law, which is, generally, an expansion of civil liability.  And factually, what Dwyer, and its legal effects, mean, is that consumers and their attorneys are likely to settle for, or recover, more, and more often, in the vast majority of consumer-protection cases.

On the allocatur side, the Court is on something of a roll.  In the criminal context, it has granted several cases that appear to involve challenges to long-frustrating problems in criminal practice.  For example, in Lewis, it appears poised to drill down on the longstanding problem of what constitutes a "high crime area" for purposes of the detention of criminal suspects.  By way of background, although the law generally requires reasonable, articulable, and specific suspicion that a particular person is engaged in criminal activity to warrant detaining him, the United States Supreme Court during the latter half of the 20th century effectively diluted this standard, holding that although flight from police alone is not sufficient reason to suspect that someone may be involved in crime, "unprovoked headlong flight" from police "in a high crime area" is.  Since then, the devil has been in the details.  In cases involving flight, police officers testify that they have done nothing to provoke flight (despite their presence being regarded as provocation to flight by many), that the defendant engaged in "headlong flight," and that virtually any area they are called to is a "high crime area" (despite there being virtually no foundation for that determination other than the officer's own anecdotal experience, or, worse, the officers' and society's prejudices).  And there is rarely any evidence to rebut the officers' contentions in this regard.  Practically, this means that leaving when police show up makes one subject to detention, usually a limited search, and questioning, and a two-tier justice system for people who live and are present in less affluent, and more diverse, communities.  The Court appears poised to scratch beyond the surface of the issue and perhaps reject what has become little more than a talisman and a license to search in poor and minority areas.  Similarly, the court in (Derrick) Walker and Smith will address longstanding problems in sexual assault cases, and in Shifflet will address a longstanding and quite-oft-repeated issue concerning the Commonwealth's use of alternative-rehabilitative dispositions as facts justifying increased sentences.  Although I have previously written that the Court's interest in the reassessment of unfair criminal procedural rules has waned, I would be happy for the Court to make a liar out of me.

And in the civil context, the court I'm interested in Tranter.  In recent years, depending on how one looks at it, the Court has either restored or liberalized the standards for venue, which effectively means that there will be less litigation about whether venue is proper, and more litigation about whether it is oppressive or vexatious.  The Court in Tranter is likely to give the bar and the bench guardrails for that litigation, which will likely impact countless cases going forward.

Precedential Opinions

Commonwealth v. Drayton, 83 MAP 2023 (Majority Opinion by McCaffery, J.) (holding that failure to object to a trial court's provision of written jury instructions does not constitute ineffective assistance of counsel per se)

City of Lancaster v. PUC, 107 MAP 2022 (Majority Opinion by Brobson, J.) (holding regulation of placement of gas meters regulated utility placement of gas meters, rather than delegated legislative or administrative power to choose location thereof, such that a municipality's challenge under non-delegation principles was meritless)

Kramer v. Nationwide Insurance, 103 MAP 2022 (Majority Opinion by Donohue, J.) (rejecting attempt to expand insurance policy providing coverage for "bodily injury" to include claims seeking recover for mental and emotional distress)

• See also Concurring Opinion by Dougherty, J.

• See also Concurring Opinion by Mundy, J.

Dwyer v. Ameriprise Financial, 2 WAP 2023 (Majority Opinion by Wecht, J.) (holding a trial court erroneously denied treble damages for statutory consumer-protection claims based on the fact that the jury had awarded punitive damages on common-law claims)

• See also Concurring and Dissenting Opinion by Brobson, J.

Ferraro v. Patterson-Erie, 1 WAP 2023 (Majority Opinion by Donohue, J.) (applying informal service of process rules in a coronavirus-pandemic related case)

• See also Dissenting Opinion by Wecht, J.

Allocatur Grants

Schmidt v. Schmidt, 658 MAL 2023 (granting review to consider the Workers' Compensation Act's coverage of over-the-county dietary supplements including cannabinoid, or "CBD," oil)

Better Bets Ventures v. PGCB, 600 - 604 MAL 2023 (granting review to consider whether appellate courts must defer to the Gaming Control Board's determination that an applicant has sufficiently good character to be a gaming licensee)

Commonwealth v. (Derrick) Walker, 432 - 434 EAL 2023 (granting review to review the appropriate test for the consideration of the admission of prior-bad-acts evidence, as well as whether the admission of a rape-kit-report without testimony from its author violates the Confrontation Clause and/or the rule against hearsay)

Commonwealth v. Lewis, 252 EAL 2023 (granting review to consider what is necessary to establish that an area is a "high crime area," and a claim of forced abandonment)

Commonwealth v. (Harold) Walker, 277 WAL 2023 (granting review to consider the legality of a voir dire question stating that the testimony of a victim, standing alone, is sufficient to find a defendant guilty)

Commonwealth v. Smith, 234 - 235 EAL 2023 (granting review to consider the legality of precluding a voir dire question about whether prospective jurors had a fixed belief that children would not lie about being sexually abused and the scope of the communication element of the offense of unlawful contact with a minor)

Commonwealth v. Foster, 206 WAL 2023 (granting review to consider the Superior Court's reliance on a defendant's proximity to a "Shot Spotter" alert in affirming a determination of reasonable suspicion)

City of Phila. v. J.S., 7 EAL 2024 (granting review to consider whether the Sexual Abuse Exception to the Political Subdivision Tort Claims Act applies to individuals who were adults at the time of their abuse)

Almusa v. State Bd. Medicine, 409 MAL 2023 (granting review to consider several statutory interpretation issues in a medical license-suspension matter)

Commonwealth v. Shifflett, 282 MAL 2023 (granting review to consider whether a defendant's prior acceptance of an alternative rehabilitative disposition must be found by the jury to constitute a basis for an increased sentence)

Tranter v. Z&D Tour, 367-381 EAL 2023 (granting review to consider the Superior Court's application of the doctrine of forum non conveniens)

Commonwealth v. Linton, 261 WAL 2023 (granting review to consider whether a bicyclist's obligation to take "reasonable efforts" to avoid preventing the normal flow of traffic requires him to leave the roadway)*

In the Int. of: B.W., et al, 23-27 & 44-48 MAL 2024 (granting review to consider the Superior Court's application of the clear and convincing evidence standard in a termination-of-parental-rights case)

*This author is counsel for the Petitioner, now Appellant, in this matter.

March 2024 Docket Review

This month on SCOPAblog, the court issued 5 precedential opinions and 8 grants of allocatur.  On the opinion side, I am most interested in N.E.M.  Facially, the case involves a relatively niche area of law: the nature of review of petitions for specialized review of juvenile-delinquent placements under Pa.R.A.P. 1612.  In short, the Superior Court had adopted a practice of fairly summary treatment of these petitions, sometimes reviewing them without all of the materials necessary to do so, and generally disposing of them without written opinion in per curiam orders.  The Court has clarified that the Superior Court should be conducting full review of the petitions, and, although stopping short of adopting a per se rule that it should not dispose of them without a written opinion, noted its "confiden[ce] that the Superior Court understands the fundamental purposes of intermediate appellate review are to promote adherence to the rule of law, correct lower court errors and assist in the development of the law" and that "[t]o achieve these purposes, appellate courts must provide explanations for their rulings."

The Court's statements in this regard might be read as evincing some ambivalence about the gap between appellate review in theory and in practice.  (I will spare you the Yogi Berra quote.)  In theory, appellate courts ensure that trial courts are following the law and operating within the bounds of reasonable discretion by explaining how the law applies to the particular case, which provides guidance for trial judges and litigants, and which provides deliberative justice to litigants, giving them the vindication of fair win, or the peace of a fair loss.  In theory, every court decision should come with an explanation.

But in practice, appellate courts don't always do this.  All of Pennsylvania's courts have dockets that they dispose of without written opinions in per curiam orders.  And even in cases with written opinions, advocates and litigants are well-armed with stories about how appellate courts have appeared to, for example, fudge waiver doctrine to avoid reaching a case's merits, or recharacterize their arguments in a way that they are easy to reject, or adopt an opinion of the trial judge which was issued before, and, thus, did not respond to, their counterarguments to it analysis.

In my view, the problem is not that they don't want to; it's that they can't.  In 2022, the last year for which caseload statistics are publicly available, the Commonwealth Court took on approximately 600 original-jurisdiction matters, an another approximately 2,000 appellate-jurisdiction matters.  Although its rules pertaining to how many judges sit on a particular case are somewhat byzantine, by my calculation, it works out to a approximately 40 trials and 400 appeals per judge.  The Superior Court, which is the busiest appellate court in the nation, took on approximately 6,500 full-scale appeals (down from a 2015 high of approximately 8,200), for a similarly high caseload of approximately 430 appeals per judge.  By way of comparison, the American Bar Association recommends that an appellate attorney litigate no more than 25 appeals per year.  The point of all this being that there simply aren't enough judges (or staff) to model perfect deliberative justice, or, as one former Superior Court judge has said, "It's an assembly line."  (Notably, Pennsylvania has approximately half of the number of intermediate appellate court judges as Illinois and Ohio, the two states closest in population.)  As a result, it would come as no surprise that judges and staff drinking from the proverbial firehose find themselves in something of a triage scenario, focusing their time and effort on matters that they view as most worthy, to the detriment of those they don't, and, like all workers in triage scenarios, taking easier paths to completing necessary tasks than they might otherwise with infinite time or resources, and, in some cases, even succumbing to burnout.  The Court is absolutely right that the Superior Court understands its purpose, and that it must justify itself to fulfill them, but, absent a significant funding increase, it is difficult to see how it can bridge the gap.

On the allocatur side, I am most interested in Freilich and Rouse.  I've written before that the hallmark of the Court in the last several years, and particularly after the retirement of Chief Justice Emeritus Saylor and the passing of the late Chief Justice Baer, has been openness to expansion of tort liability.  This is largely due to the fact that, although individual Justices have different opinions in different relevant areas of civil law, there always appear to be a coalition of at least four Justices willing to take the proverbial leap forward.   (A similar trend involving criminal procedural rights and the narrow interpretation of criminal statutes occurred briefly between 2016 and the retirement of Chief Justice Emeritus Saylor, but has since largely abated.)  In Freilich, the plaintiffs, represented by high-profile plaintiff's attorney (and Duquesne Law School's new namesake) Thomas Kline, are challenging a statutory cap on damages from state agencies as violative of state constitutional rights, but there are not particularly meaningful distinctions between that cap and other kinds of caps in pertinent part.  Thus, Freilich is about a lot more than it seems. and will likely be a monumental battle between the plaintiffs' and defense bar.  And, on a much smaller stage, in Rouse, the Court appears poised to, for the second time this year, adopt a new tort -- here, the infliction of emotional distress by improperly interfering with a plaintiff's family member's corpse.  

Precedential Opinions

In the Interest of: N.E.M., 8 - 9 EAP 2023 (Majority Opinion by Donohue, J.) (holding juveniles adjudicated delinquent and subjected to placement who seek specialized review pursuant to Pa.R.A.P. 1612 have a right to appellate review, but stopping short of holding that the Superior Court is obliged to issue written opinions in connection with such review)

• See also Concurring Opinion by Dougherty, J.

Commonwealth v. Lehman, 41 WAP 2022 (Majority Opinion by Brobson, J.) (holding that an offender at a drug treatment facility pursuant to a condition of his parole is an "inmate" subject to prosecution for possession of a controlled substance by an inmate)

• See also Concurring Opinion by Mundy, J.

• See also Dissenting Opinion by Wecht, J.

In Re: Trust B of Wells, 5 WAP 2023 (Majority Opinion by Wecht, J.) (providing a history and discussion of the requirements for judicial termination of trusts and holding that the lower courts properly rejected an attempt to terminate the subject trust because the burdens of its separate existence were not "unreasonably out of proportion" to its charitable benefits)

• See also Concurring and Dissenting Opinion by Mundy, J.

In the Int of: T.Q.B., 71 MAP 2023 (Majority Opinion by Mundy, J.) (holding that exposure of any portion of a female's breast below the top of the nipple constitutes nudity for purposes of a statute prohibiting the possession of sexually explicit images of a minor)

PSEA v. PSERB, 90 MAP 2022 (Majority Opinion by Wecht, J.) (holding the Pennsylvania State Education Association had standing to seek a declaratory judgment concerning the legality of a Public School Employees Retirement Board' resolution adopting an interpretation of a statute relating to public school teacher pensions)

Allocatur Grants

Commonwealth v. Williams, 337 EAL 2023 (granting review to consider the dismissal of charges against a police officer who allegedly falsified statements during an internal-affairs interview and tampered with an investigative file)

Tiano v. City of Phila., 287 EAL 2023 (granting review to review whether a self-insured government entity may subrogate Heart and Lung Act benefits in a non-motor vehicle case)

Commonwealth v. Murchison, 156 EAL 2023 (granting review to consider the standard of review and import of actual innocence jurisprudence on claims for post-conviction DNA testing of evidence in a criminal case)

Duncan v. Chartiers Nature Conservancy, 245 WAL 2023 (granting review to consider the appropriate framework for determining the possession of undeveloped woodland property)

Freilich v. SEPTA, 245 EAL 2023 (granting review to consider whether the $250,000 cap on state agencies' liability for damages violates plaintiffs' state constitutional rights to a jury trial and to remedies where it functions to cap recovery at an amount less than costs, fees, and insurance reimbursement claims, and, if so, whether it is severable from the statutory limited waiver of sovereign immunity)

Rouse v. Rosenberg, 145 WAL 2023 (granting review to consider whether to permit a plaintiff to recover where the defendant's interference with the plaintiff's family member's body intentionally or recklessly interfered with the body's cremation or interment)

Glover v. Junior, 10 EAL 2024 (granting review to consider the appropriate framework for the establishment of parental rights in the context of conception via assistive reproductive technology)

Interstate Gas Supply v. PUC, 292 MAL 2023 (granting review to consider several issues related to the Public Utility Commission's disparate treatment of electric power companies)

February 2024 Docket Review

This month on SCOPAblog, the court issued 10 precedential opinions and 6 grants of allocatur.  On the opinion side, I'm most interested in Salsberg, in which the Court has for all intents and purposes recognized an arguably new tort in the Commonwealth of Pennsylvania: intentional interference with an at-will employment relationship.  In Salsberg, Justice Brobson, writing for something of an unexpected coalition of himself and Justices Donahue, Dougherty, and Wecht, effectively holds that it is one thing to say that an at-will employee has no legally enforceable expectancy that his employment relationship will continue, but another thing to say that he cannot be wrong by third parties alien to that relationship interfering with his factual expectancy in that regard.  The majority's opinion is logically sound enough in this regard, but it will be interesting to see how the doctrines surrounding this cause of action are developed.  Although the majority cogently identifies that supervisors, co-workers, and the like are not third parties when acting in the scope of their employment, there are nevertheless many conceivable situations in which what have heretofore been relatively mundane personnel decisions may now become actionable, and many, many potential plaintiffs to bring the claims.

On the allocatur side, I'm most interested in Lee, which raises a challenge to Pennsylvania's mandatory sentence of life imprisonment for individuals convicted of second-degree murder, as applied to individuals who are convicted of so-called felony murder for committing or conspiring to commit a felony during which another individual commits a murder.  The challenge invokes the Eighth Amendment to the United States Constitution, which, in this author's estimation, is something of a nonstarter in light of the United States Supreme Court's rightward shift in recent years, but also under Article I, Section 13 of the Pennsylvania Constitution, regarding which the Court has significantly more leeway.  Indeed, although there are decisions from the Court's early days of "New Federalism," suggesting that the Eighth Amendment and Article I, Section 13 should ordinarily be interpreted coextensively, there have been more recent decisions, particularly in the areas of Excessive Fines and civil forfeiture, in which the Court has applied different standards, or, at least, applied them in a more evenhanded or Pennsylvania-localized way.  Still, the devil may be in the details.  Pursuant to the Court's Internal Operating Procedures, a vote of three Justices is sufficient to grant an appeal, whereas a vote of four is required to win.  Additionally, it is commonplace for Justices, particularly those who view their office as scholarly, to grant appeals to resolve interesting issues authoritatively, regardless of where they find themselves likely to land in the end.  A grant of allocatur, in this regard, is largely inscrutable from the outside.

Finally, I would be remiss if I did not mention that, last week, Chief Justice Todd, joined by Justice Brobson, and Court Administrator Andrea Tuominen, and flanked by President Judge Anne Lazarus of the Superior Court and President Judge Renee Cohn Jubelirer of the Commonwealth Court, among others, visited the General Assembly to testify relative to the judiciary's budgetary needs.  The hearing lasted approximately 2 hours, and is available for viewing on YouTube here.  In short, the hearing showed that the Chief Justice is in the right job.  From a purely informational perspective, the Chief, still less than 2 years into her role, demonstrated a remarkably strong command of the judicial branch, its functions, and its needs spanning back at times for decades and at a highly granular level.  And from a political perspective, she not only demonstrated the wisdom and coalition-building ability to attend with the recently-elected-as-a-Republican Justice Brobson and a group of jurists showing our courts in a unified, nonpartisan bloc when it comes to the importance of funding its operations, but also demonstrated a degree of assertiveness, grace, and candor that one rarely sees in state government before a body that, only a few years ago, threatened to impeach the entire court for recognizing the unconstitutionality of partisan gerrymandering.  The Chief has a long time to serve if she wants it, and if this hearing is any indication, could certainly use it quite well.

Precedential Opinions

Ivy Hill Cong. of Jehovah Witnesses v. DHS, 65 MAP 2022 (Majority Opinion by Todd, C.J.) (holding that a Commonwealth Court decision in a declaratory judgment action contradicted a prior decision in the same action and therefore violated the coordinate jurisdiction rule)

Commonwealth v. Chambers, 15 EAP 2023 (Majority Opinion by Wecht, J.) (holding that a trial court's attempt to reform a bench-trial verdict to convict the defendant of additional offenses violated constitutional prohibitions on double jeopardy)

Salsberg v. Mann, 7 EAP 2022 (Majority Opinion by Brobson, J.) (holding that at-will employees can maintain actions against third-parties for intentional interference with their employment relationships, but that they cannot maintain them against supervisors and other co-workers acting within the course and scope of their employment)

• See also Concurring Opinion by Wecht, J.

• See also Concurring and Dissenting Opinion by Todd, C.J.

• See also Concurring and Dissenting Opinion by Mundy, J.

Commonwealth v. Smith, 6 EAP 2023 (Majority Opinion by Brobson, J.) (holding that where a criminal defendant with a pending, facially untimely direct appeal files a petition for relief pursuant to the PCRA, it should be held in abeyance pending resolution of the timeliness question rather than dismissed as premature)

PIAA v. Campbell, 71-72 MAP 2022 (Majority Opinion by Mundy, J.) (holding that the Pennsylvania Intercollegiate Athletic Association is a "Commonwealth entity" and "state-affiliated entity" for purposes of the Right-to-Know Law, and, thus, its records are public records subject to disclosure under the Law)

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Donohue, J.

Commonwealth v. Chisebwe, 4-7 MAP 2023 (Majority Opinion by Dougherty, J.) (holding evidence that a motorist refused to produce identification for approximately 25 minutes of a traffic stop was suffiicent to sustain convictions for failing to produce those items on demand)

• See also Concurring Opinion by Mundy, J.

Barris v. Stroud Twp., 68 MAP 2022 (Majority Opinion by Dougherty, J.) (holding Stroud Township ordinances limiting the discharge of firearms to, inter alia, shooting ranges, and limiting the construction of shooting ranges to approximately 35% of the Township do not violate the federal constitutional right to bear arms)

• See also Concurring and Dissenting Opinion by Donohue, J.

• See also Dissenting Opinion by Mundy, J.

KEM Resources v. Ryvamat, Inc., 10 MAP 2023 (Majority Opinion by Mundy, J.) (holding a claim for accounting under a paid-up oil-and-gas lease was subject to a six-year limitations period)

Vinculum, Inc., v. Goli Technologies, 74 MAP 2022 (Majority Opinion by Brobson, J.) (holding that a party to a contract was entitled to attorney's fees and would have potentially been entitled to lost profit damages notwithstanding a limited non-compete agreement)

• See also Concurring Opinion by Wecht, J.

Ursinus College v. PWAB, 18 MAP 2023 (Majority Opinion by Brobson, J.) (holding that a construction project at a college did not constitute a "public work" for purposes of the Pennsylvania Prevailing Wage Act)

Allocatur Grants

Galette v. NJ Transit, 204 EAL 2023 (granting review to consider several issues related to immunity in an action involving the New Jersey Transit Corporation)

Jackiw v. Soft Pretzel Franchise, 286 EAL 2023 (granting review to consider the Commonwealth Court's legal standard in addressing a dismemberment claim under the Workers' Compensation Act)

Commonwealth v. Lee, 180 WAL 2023 (granting review to consider whether Pennsylvania's sentence of mandatory life imprisonment for second-degree murder violates federal and state constitutional prohibitions on cruel and unusual punishments)

Bass Pro v. Harrisburg Mall, 450 MAL 2023 (granting review to consider the proper scopes of the duty to indemnify and duty to defend in the context of a particular lease)

Commonwealth v. Jeter, 193 WAL 2023 (granting review to consider the Superior Court's grant of relief on a claim of external jury influence)*

Halpern v. Ricoh U.S.A., 263 EAL 2023 (granting review to consider whether to overrule a prior decision holding that consumer-deceptive omissions are only actionable if the merchant has an affirmative duty to disclose the facts in question).

*The undersigned is counsel for the Appellee in Jeter. 

January 2024 Docket Review

This month on SCOPAblog, the court issued 6 precedential opinions and 2 grants of allocatur. 

On the opinion side, Allegheny Reproductive Health Ctr. is less than a week old, but has already created something of a media shockwave.  In that case, on the off chance you have been living under the Monongahela River for the past five years, several abortion providers sued to challenge the Abortion Control Act's provisions withholding public funds from women on medical assistance seeking abortions except in the case of rape, incest, and to save the patient's life, raising a simple theory: the right to decide whether to have an abortion is a fundamental right, and providing public funding for all medical reproductive care for men, and all medical reproductive care for women who choose to carry to term, but not those who choose to abort, is discriminatory and constitutionally unjustifiable.  This theory was advanced primarily by the Pittsburgh-based Women's Law Project's Co-Executive Director Susan Frietsche, who, coincidentally, as an adjunct professor at the University of Pittsburgh School of Law, taught this author 99% of what he knows about reproductive-rights law. 

In a 3-2 opinion written by Justice Donohue and joined by Justice Wecht and Justice Dougherty in part (Justices Brobson and McCaffery did not participate), the Court offers roughly 250 pages of analysis that essentially overrules several holdings of a prior decision that would have stopped the challenge in its tracks.  Although the majority opinion is important enough for its holding in this regard, along the way, it manages to at least appear to weigh in on doctrine after doctrine central to appellate practice.  Before even beginning the analysis in substance, the court weighs in on derivative standing (i.e., the providers' standing to assert their putative patients' constitutional rights).  It also weighs in on, and arguably narrows, legislator standing, perhaps in an effort to turn back what has been something of an onslaught of legislators intervening, rather than participating as amici curiae, in constitutional challenges before the Court.  And it discusses whether and to what degree Edmunds analyses are appropriate in the context of interpreting state constitutional provisions, like the Pennsylvania Equal Rights Amendment, which have no federal analogue.  On the merits, it provides a tour de force of constitutional analysis, including allusions to the possibility that certain constitutional rights cannot be amended away, and, perhaps most importantly, underlines the intersection of the two issues of fundamental privacy and sex discrimination here, as well as the way in which a changing constitutional tradition and changing legal tradition can impact the interpretation of constitutional rights over time.  (This is a point triple-underlined, and perhaps given an exclamation point or two in Justice Wecht's own 70-some page concurring opinion).

Justice Donohue, joined by Justice Wecht, would have gone further and essentially affirmed the challenge's theory altogether, although Justice Dougherty in a concurring and dissenting opinion referred to the analysis as "incredibly insightful," but he stopped short of joining it, meaning that the case will return to the lower court to entertain the theory in the first instance.  Chief Justice Todd, for her part, expressed the view that the Court was bound to reject the theory by precedent, and that the majority had not identified adequate justification for dispensing with hit.  Justice Mundy shared a similar view and agreed with that precedent's fundamental proposition, at least insofar as it established a somewhat reductive principle that there is no constitutional right to a publicly funded abortion.

It will be interesting to see what happens in and out of court as the case progresses.  In 2018's League of Women Voters case, perhaps the most recent political-firestorm case, the Court reinterpreted the Free and Equal Elections Clause of the Pennsylvania Constitution to recognize voters' constitutional protection against vote dilution in the form of extreme partisan gerrymandering, and, after giving political actors an opportunity to create new maps, ultimately appointed a special master and crafted its own.  To say that the Legislature did not take it well would be an understatement.  Although some of its members objections were less than intellectually robust — one legislator calling the majority activists claimed that it was middle-school civics that courts don't make law, which is true, but one hopes that our lawmakers have a more advanced understanding of how legisprudence works — they nevertheless led to efforts, including proposed impeachment articles, a proposal that would ironically have enacted judicial districts for the purpose of creating vote dilution, and budget cuts, ostensibly to either warn the Court to slow down, to stop it from going further, or, perhaps, just to exact revenge.  Cooler heads prevailed, and a constitutional crisis was avoided. 

It's difficult to see how the Legislature will react here.  Although the House of Representatives is under Democratic control at the moment, the margin is razor-thin and seems to be frequently interrupted as members take other offices and force special elections, and there are likely a fair number of Democrats who may balk at that suggestion that the government is constitutionally required to provide abortions, no matter how logical it may be on paper.  Indeed, as the case was percolating, efforts at advancing a ballot question on the point were ongoing.  Additionally, all three of the Justice in the majority were elected in 2015, and must stand for retention next year.

That said, if they do, and if they are successful, it is difficult to see how the plurality expressions in this case do not prevail in the end.  Again, Justice Dougherty in his concurring and dissenting opinion was downright effusive.  And although Chief Justice Todd dissented on the basis of being bound by precedent, the majority won the day, and the Chief has something of a history of recognizing the importance of respecting doctrinal evolutions, even if not joining them in the first instance.  And although Justice Brobson's position is something of an unknown, Justice McCaffery while running for the Court last year emphasized his commitment to protecting abortion rights.  In other words, the writing may not be on the wall, but the path is certainly laid out.

Precedential Opinions

In Re: Senior Health Ins. Co. of PA, 71 MAP 2021 (Majority Opinion by Todd, C.J.) (rejecting claims by other states that the Insurance Commissioner's rehabilitation plan for an insolvent insurance company created a "policy of hostility" to their own insurance regulation statutes and therefore violated the Full Faith and Credit Clause of the United States Constitution)

• See also Dissenting Opinion by Brobson, J.

Allegheny Reprod. Health Ctr. v. PA DHS, 26 MAP 2021 (Majority Opinion by Donohue, J.) (overruling dismissal of challenge to Abortion Control Act's provisions withholding public funds from women on medical assistance seeking abortions)

• See also Concurring Opinion by Wecht, J.

• See also Concurring and Dissenting Opinion by Todd, C.J.

• See also Concurring and Dissenting Opinion by Dougherty, J.

• See also Concurring and Dissenting Opinion by Mundy, J. 

B.C. v. C.P. & D.B., 8 WAP 2023 (Majority Opinion by Todd, C.J.) (holding periods of spousal separation do not per se undermine application of the presumption of paternity)

• See also Concurring Opinion by Wecht, J. 

Commonwealth v. Taylor, 40 MAP 2022 (Majority Opinion by Todd, C.J.) (holding a trial court's consideration of a juvenile's exercise of the privilege against self-incrimination as a basis for trying his as an adult constitutes structural error)

• See also Dissenting Opinion by Mundy, J.

• See also Dissenting Opinion by Brobson, J.

Rush v. Erie Insurance Exchange, 77 MAP 2022 (Majority Opinion by Donohue, J.) (holding that an insurance policy's exclusion of injury for injury while using a regularly-used, non-covered vehicle from underinsured motorist benefits did not violate the Motor Vehicle Financial Responsibility Law)

• See also Concurring Opinion by Wecht, J.

Dept of Comm and Econ Dev v. City of Chester, 12 & 15 MAP 2023 (Majority Opinion by Wecht. J.) (rejecting several challenges to the authority of the Act 47-receiver of the City of Chester)

• See also Concurring Opinion by Brobson, J.

• See also Dissenting Opinion by Dougherty, J.

Allocatur Grants

Steets v. Celebration Fireworks, 302 MAL 2023 (granting review to consider the availability of specific-loss benefits under the Workers' Compensation Act).

Commonwealth v. Rondon, 407 MAL 2023 (granting review to consider the requirement of written consent to continue a surety on reinstated bail).

December 2023 Docket Review

This month on SCOPAblog, the court issued 4 precedential opinions and 6 grants of allocatur.  On the opinion side, things are a bit dry, but that does not mean they are uninteresting.  I'm most interested in Washington, in which Justice Christine Donohue authors a fairly stirring and excellently thorough majority opinion about the interstices of procedural due process, among other legal questions, ultimately in service of a holding that correctional facilities cannot unilaterally and without notice and an opportunity to be heard take inmates' money via legislatively sanctioned deductions from prison accounts.  The opinion is likely to be cited, and any practitioner would do well to dig into it, in future procedural due process cases, even if the specific right it confers will not likely be of much practical benefit to the inmates at this juncture.  But isn't process itself exactly the point of procedural due process?

On the allocatur side, solicitors in every one of Pennsylvania's 500 school districts should be paying attention to Penncrest, potentially within reach of some Advil.  In that case, the Court will consider the proper standards for application of the Right-to-Know-Law to school-board members personal social-media posts pertaining to district business -- specifically, two school-board members' personal social-media posts highlighting an queer-friendly book display at a school library and making anti-queer comments.  Below, the Commonwealth Court endeavored to answer this question of first impression, which is one of first impression, and, whether the Court's grant of allocatur simply derives from the fact that it is a question of first impression and substantial public importance, or, on the other hand, the Court thinks the Commonwealth Court got it wrong, it will be interesting (and helpful) to see the court lay down some clear guidance.

Precedential Opinions

Tambellini v. Erie Insurance, 21-24 WAP 2022 (Majority Opinion by Wecht, J.) (holding a court may not order coordination under Pa.R.C.P. 213.1 of similar cases not yet filed)

Washington v. PA Dept. of Corrections, 13 MAP 2022 (Majority Opinion by Donohue, J.) (holding that correctional facilities must provide notice and an opportunity to be heard before increasing certain deductions from inmate accounts)

• See also Concurring Opinion by Dougherty, J.

• See also Dissenting Opinion by Brobson, J.

Greenwood Gaming v. Dept. of Rev., 76 MAP 2021 (Majority Opinion by Donohue, J.) (holding that the Commonwealth Court erred in eschewing a subjective, holistic comparison of online lottery games with casino games in favor of more narrow, elements-based comparison, for purposes of applying regulations confining lottery and casinos to their respective online markets)

• See also Concurring and Dissenting Opinion by Mundy, J.

Dept. of Corrs. v. Lynn, 95-96 MAP 2022 (Majority Opinion by Wecht, J.) (holding the ascension of an unclassified service employee to a classified service position is not a promotion within the meaning of two civil-service statutes and, thus, that applying a veterans preference does not violate anti-discrimination provisions of one of the statutes)

• See also Concurring Opinion by Mundy, J.

Allocatur Grants

Penncrest SD v. Cagle, 103 WAL 2023 (granting review to consider the application of the Right-to-Know-Law to school board members' personal social-media posts regarding district business)

Winig v. Office of DA of Phila.,133 EAL 2023 (granting review to consider whether prosecutors are immune from suit under the Wiretap Act)

CKHS, Inc. v. Prospect Med. Hldgs., 299 & 300 MAL 2023 (granting review to review the Commonwealth's Court's observance of the standard of review in a case involving a preliminary injunction precluding the conversion of a Delaware County hospital into a behavioral health facility)

Commonwealth v. Vision Property Mgmt., LLC, 171 WAL 2023 (granting review to consider the Commonwealth Court's application of waiver doctrine and the scope of relief permitted by a general prayer for relief in a consumer protection enforcement action)

Wunderly v. Saint Luke's Hospital, 369 MAL 2023 (granting review to consider whether claims arising out of treatment during, but arguably not directly related to, a mental-health commitment are subject to the immunity provisions of the Mental Health Procedures Act)

Commonwealth v. Foster, 194 WAL 2023 (granting review to consider whether an officer's indication that an interviewee was not a suspect renders his ensuing statements involuntary and inadmissible)

November 2023 Docket Review

This month on SCOPAblog, the court issued 7 precedential opinions and 4 grants of allocatur.  On the opinion side, I'm most interested in Hangey, which, depending on your view, either reaffirms or quite liberalizes the rules governing venue under Pennsylvania law by deemphasizing the amount of business a corporation must do in a particular county in favor of emphasizing the regularity with which it does that business.  When viewed in conjunction with recent rules changes, among other developments, Hangey represents something of a boon for litigants (and their lawyers) who want to gain access to Philadelphia County juries, who are viewed as more likely to grant large awards than juries elsewhere.  Predictably, Hangey has already been lauded by the plaintiffs' bar and decried by the defense bar, already reeling from the Court's (and the U.S. Supreme Court's decision) in Mallory, affirming as constitutional a state statute providing for expansive personal jurisdiction over corporations.  It will be interesting to see how all these factors converge into verdicts over the next year or so, but I would bet that the market is bullish.

I'm also interested in the Court's decision in Doyle, which reverses a lower court award of attorney's fees in an election petition challenge.  One particularly interesting aspect of the decision is that it recognizes the somewhat Wild-West nature of those challenges.  After petitions are submitted, sometimes with thousands of lines of identifying information and signatures, would-be objectors are expected to conduct a line-by-line investigation of whether the information and signatures match what is in public election records, and, if not, whether the variances are material under exceedingly unclear and inconsistent precedent and numerous enough to warrant setting aside the petition.  This often requires exceedingly plodding searches in the state's election database, the retention of handwriting experts, and significant legal research on ambiguous legal issues, and the Election Code gives would-be objectors an exceedingly small window of time to do it.  Making matters worse, outside major statewide campaigns, candidates generally want to spend most of their money appealing to voters, not paying counsel, and expertise in the area is rare, such that the petitions/objections period of each election is just something of a scrum.  The Court's recognition of this fact, and its import for whether objectors should be required to pay candidates' fees for defending against objections on the theory that they have filed them in bad faith, is well-put.

On the allocatur side, I'm most interested in Muhammad, which involves an issue of inconsistent verdicts - here, a conviction inconsistent with a special jury interrogatory.  In both the civil and criminal contexts, the Court has recently ventured into something of a thicket in trying to balance having a sensible verdict with the practical reality that sometimes, juries just compromise, and, as one U.S. Supreme Court decision put it, it is difficult to tell whose ox has been gored: i.e., here, whether the jury's conviction should be impeached by its interrogatory because the jury convicted despite its answer; or whether the jury's interrogatory should be impeached by its conviction.  In earlier decisions, the Court had focused on the "special weight afforded acquittals" to invalidate other convictions, but has since retreated from that position in the face of problems of practical application.  It will be interesting to see how the Court deals with the ox-gore problem here.

Precedential Opinions

Commonwealth v. Weeden, 19 WAP 2022 (Majority Opinion by Todd, C.J.) (holding that a computer-generated summary of "ShotSpotter" data is nontestimonial for purposes of the Sixth Amendment right to confront the witnesses against oneself)

• See also Concurring Opinion by Wecht, J.

• See also Concurring Opinion by Brobson, J.

Commonwealth v. Rizor, 32 & 33 WAP 2022 (Majority Opinion by Donohue, J.) (reversing the Superior Court's reversal of a PCRA court's rejection of a claim of ineffective assistance of plea counsel)

• See also Dissenting Opinion by Wecht, J.

In Re: Nom. Pet Doyle, 78 MAP 2022 (Majority Opinion by Todd, C.J.) (reversing the Commonwealth Court's award of counsel fees in an election petition challenge)

Hawbaker, Inc. v. PennDOT, 20 MAP 2022 (Majority Opinion by Brobson, J.) (applying the doctrine of exhaustion of administrative remedies in a complex matter involving a prequalified bidder for state construction contracts)

Zilka v. Tax Review Bd. City of Phila., 20 & 21 EAP 2022 (Majority Opinion by Todd, C.J.) 

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Dougherty, J.

Dinardo v. Kohler, 22 & 23 EAP 2022 (Majority Opinion by Todd, C.J.) (reaffirming the no-felony-conviction-recovery rule barring felons from bringing actions implicating their criminal conduct)

• See also Concurring Opinion by Dougherty, J.

Hangey v. Husqvarna, 14 EAP 2022 (Majority Opinion by Dougherty, J.) (reframing and liberalizing extant venue requirements)

• See also Dissenting Opinion by Brobson, J.

Allocatur Grants

Eastern Steel Constr. v. Int. Fidelity Insurance, 574 & 609 MAL 2022 (granting review to consider several surety-liability issues in a commercial construction case)

Commonwealth v. Crosby, 142 WAL 2023 (granting review to consider conflicting precedent concerning the meaning of "substantial force" in the context of the offense of resisting arrest)

Velasquez v. Miranda, 454 MAL 2023 (granting review to consider several issues in a case involving special immigrant juvenile status under federal law)

Commonwealth v. Muhammad, 200 MAL 2023 (granting review to consider the sufficiency of the evidence to support a conviction in light of a specific jury interrogatory involving one of the elements of the offense)

October 2023 Docket Review

This month on SCOPAblog, the court issued 2 precedential opinions and 10 grants of allocatur.  On the opinion side, I'm most interested in Conforti, a rare unanimous opinion affirming a trial court's order granting guilt-phase relief in a death penalty case.  One of the more disturbing secrets of criminal practice is that the law governing constitutionally mandated disclosure of evidence is less than clear, and fairly complex, so it is often the case that district attorneys don't disclose what they're required to disclose.  In recent years, more progressive-minded district attorney offices have trended toward overdisclosure, and even open-file discovery, but more conservative offices have jealously guarded the doctrine as it stands.  In Conforti, which involved the Commonwealth's failure to disclose certain mental health records that would have been helpful to Conforti at his guilt-phase trial, Justice Mundy, writing for the Court, attempts to provide some clarity where she can and identify some unclear issues for a future case.  The opinion also has great analysis of whether the Commonwealth's failure to disclose the records caused Conforti prejudice.  The opinion is a good starting point for anyone with a potential disclosure issue in a PCRA case going forward.

On the allocatur side,I'm most interested in Garcia, which involves a claim that merchants illegally collected sales tax on certain face masks at the outset of the ongoing coronavirus pandemic, which the Superior Court effectively dismissed on the theory that the collection of sales tax is not "in the conduct of trade or commerce" as is required to invoke Pennsylvania's Unfair Trade Practices and Consumer Protection Law.  The Superior Court's decision has the potential to poke a considerable hole in the UTPCPL, as it would arguably apply equally to all sorts of not-strictly-mercantile activity, and, as far as this author has seen, no Court has yet conducted a thorough statutory analysis of the question.  It will be interesting to see where the court lands.

Precedential Opinions

Commonwealth v. Conforti, 794 CAP (Majority Opinion by Mundy, J.) (affirming PCRA court's grant of guilt-phase relief in a death-penalty case on the basis of the Commonwealth's violation of constitutional evidence-disclosure requirements)

A.M.D. v. A.L.R, et al., 13 MAP 2023 (Majority Opinion by Brobson, J.) (holding that an order determining that grandparents have standing to pursue "grandparents rights" in the form of partial custody is interlocutory and not appealable as a collateral order)

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Todd, C.J.

Allocatur Grants

Kleinbard v. Lanc. Co. DA, et al., 288 MAL 2023 (granting review to consider budgetary dispute between Lancaster County's commissioners and district attorney)

Garcia v. American Eagle Outfitters, Inc., 153-154 WAL 2023 (granting review to consider whether activities related to the collection of sales tax are "in the conduct of trade or commerce" as contemplated by Pennsylvania's consumer protection law)*

Commonwealth v. Kurtz, 289-291 MAL 2023 (granting review to consider the legality of a search warrant for an unspecified individual's internet searches)

Elite v. Premier, 156 WAL 2023 (granting review to consider legality of medical care provider's attempt to avoid workers compensation cost-containment provisions by proceeding elsewhere)

Martin v. Donegal Twp., et al., 93 WAL 2023 (granting review to consider the constitutionality of a reduction-in-supervisors provision of the Second Class Township Code)

Commonwealth v. Strunk, 54 MAL 2023 (granting review to consider the validity of a conviction for unlawful contact with a minor based on post-offense conduct)

Pottstown SD v Montgomery Co Bd, 120 MAL 2023 (granting review to consider the Commonwealth Court's determination that a hospital paid an executive substantial compensation, precluding a real estate tax benefit)

Uni of Pgh, et al v. Herold, 94 WAL 2023 (granting review to consider the scope of the exclusivity provisions of the Pennsylvania Occupational Disease Act)

Matos v. Geisinger Medical Center, 192-193 MAL 2023 (granting review to consider the scope of the purported right of action under the Mental Health Procedures Act in voluntary inpatient scenarios)

Commonwealth v. Lear, 240-242 MAL 2023 (granting review to consider the Commonwealth's due diligence requirement under Pa.R.Crim.P. 600 during the initial stage of the ongoing coronavirus pandemic)

Bonus Reading

As election month is now upon us, we would be remiss to not remind readers of their opportunity to elect our state's newest Supreme Court justice on November 7th. Read more about the candidates here.

* This author is among counsel for the Petitioner in these matters.

September 2023 Docket Review

This month, the Court issued 2 precedential opinions and 6 grants of allocatur. 

On the opinion side, the most impactful case of the two is clearly Weeks.  In that case, the court considered whether legislation from 2019, gutting the state's cash assistance program upon which thousands of poor Pennsylvanians relied and interposing certain medical benefits, among other things, violated some of the legislative-process requirements of the Pennsylvania Constitution.  Those requirements include that legislation must be passed via a bill with a single original purpose, a single subject, and a clear expression of that subject in the title.  Chief Justice Todd, writing for a majority of the Court, held that the legislation was valid.  First, after providing a lengthy and scholarly analysis of the single-subject requirement, the Chief Justice explained that associated caselaw has "waxed and waned" as to just how much deference is provided to the legislature in crafting multifaceted legislation, and settled on a standard that all facets "must be part of a unifying scheme to accomplish a single, potentially broad, but not unduly expansive, purpose."  Applying that rubric, Chief Justice Todd found that, although the question was close, the legislation's facets were all part of a unified subject of moving from cash assistance to health-specific benefits.  Second, employing similar reasoning, the court found that the legislation had always had such a purpose, and that it was not deceptively titled.

The secondary opinions are worth a view as well, particularly Justice Mundy's concurrence suggesting that there is no constitutional textual support for a requirement that a bill not be deceptively titled, Justice Donohue's dissent taking the majority to task for what she appeared to view as creative opinion writing, and Justice Wecht's dissent issuing something of a clarion call to retrench and reinvigorate the 19th-century reform spirit that animated these provisions.

In my humble opinion, Weeks, and **McGee, in which a 4-2 majority raises a factual issue sua sponte and affirms without addressing the question upon which it granted allocatur, both read as if they are efforts to coalesce a majority on a six-member court and avoid a worse result or a stalemate or a fractured decision.  And while there's not necessarily anything wrong with that (or with the substantive analysis in the opinions), it does say something about the evolution of the Court: this isn't 2021.  The retirement of Chief Justice Saylor and the unfortunate passing of Chief Justice Baer, coupled with the election of Justice Brobson, have shifted (or entropized?) the composition of the court on many issues, and the November election is likely to profoundly impact where the court goes from here.

On the allocatur side, I'm most interested in Shultz, Santiago, and Mertira, which all involve civil liability for recreational activities.  The above discussion of the court's shift notwithstanding, litigants seeking to expand civil liability have found a lot of success with the Court, in large part due to Justice Mundy's broad, if counterintuitive, judicial philosophical alignment with plaintiffs and the plaintiffs' bar.  Although, as I explained last month, there seems to be something of a high-tide in the works, I wouldn't be surprised to see each of these three come out in favor of the plaintiffs.

Precedential Opinions

**Commonwealth v. McGee, 17 WAP 2022 (Majority Opinion by Todd, C.J.) (finding that the sentencing order challenged did not contain a patent defect and therefore failing to reach whether such an order may be challenged pursuant to a trial court's inherent authority to correct mistakes notwithstanding the time-bar provisions of the PCRA)

• See also Dissenting Opinion by Wecht, J.

Weeks v. DHS, 22 EAP 2021 (Majority Opinion by Todd, C.J.) (holding legislation, inter alia, eliminating Pennsylvania's cash assistance program, did not violate several legislative-process provisions of the Pennsylvania Constitution)

• See also Concurring Opinion by Dougherty, J.

• See also Concurring Opinion by Mundy, J.

• See also Dissenting Opinion by Donohue, J.

• See also Dissenting Opinion by Wecht, J.

Allocatur Grants

Pignetti v. Pa. DOT, 38 & 39 EAL 2023 (granting review to consider the Commonwealth's alleged addition of requirements onto the Eminent Domain Code)

Shultz v. Sky Zone, 97 EAL 2023 (granting review to consider the reach of an arbitration agreement entered into by a child's father prior to the child's injury at a trampoline park)

Santiago v. Philly Trampoline Park, 96 EAL 2023 (also granting review to consider the reach of an arbitration agreement entered into by a child's father prior to the child's injury at a trampoline park)

Commonwealth v. Roberts, 75 WAL 2023 (granting review to consider whether the Commonwealth must prove scienter to establish the offense of failure to register as a sexual offender)

Mertira v. Camelback Lodge, 87 MAL 2023 (granting review to consider whether and under what circumstances to apply the hills and ridges doctrine to winter-weather activities)

**Landlord Svc. Bureau v. City of Pgh, 82 WAL 2023 (granting review to consider whether a rental registration ordinance requiring the hiring of a local agent violates the Home Rule Charter and Optional Plans Law's business exclusion provisions)

** In full disclosure, the undersigned was, or is, party-counsel in McGee and Landlord Svc. Bureau, and with respect to McGee, certainly hopes his view isn't just sour grapes.

August 2023 Docket Review

This month, the Court issued 5 precedential opinions and 6 (or, depending on how you count them, 9) grants of allocatur.  On the opinion side, I once again run the risk of being accused of running a Justice David Wecht fanblog.  The most noteworthy case is Klar, which rejects several attempts to expand both statutory and common-law alcohol-furnishment liability to at least some social hosts.  Justice Wecht, for a unanimous Court, authors a scholarly opinion reiterating extant decisions interpreting the Dram Shop Act and developing the common law erecting a strict boundary between commercial alcohol providers on one hand and social ones on the other.  The decision is noteworthy not only because it is well-written, but also because it unanimously rejects an attempt to expand civil liability, a rarity over the last several years.

For my fellow appellate nerds, however, the most useful case going forward will be Pa. State Police, in which the Court finds that the Commonwealth Court abused its discretion in failing to affirm an Office-of-Open-Records order requiring the state police to disclose its police governing monitoring of social media accounts and instead issuing a remand to give the police another chance to establish that was exempt from disclosure.  In this case, the Commonwealth Court's motives were understandable: the state police argued that the policy was exempt pursuant to a subsection providing that records the disclosure of which would cause risks to public safety are exempt, and so the Commonwealth Court's affirmance would let the proverbial genie out of the bottle.  But, as Justice Wecht's 4-2 opinion explained, the Commonwealth Court's action was inconsistent with appellate review and the applicable burdens of proof.  Additionally, the opinion goes to some degree of trouble to identify situations in which the Commonwealth Court had previously issued remands in more appropriate circumstances -- i.e., where the record was not ripe for appellate review -- and distinguished them all.  Pa. State Police in this regard may be an effective tool for every appellate attorney faced with an unexpected and potentially inappropriate remand.

On the allocatur side, I'm most interested in Thompson.  Under federal constitutional law, police are permitted to dispense with the need for a warrant to search automobiles provided they have probable cause.  The notion is that automobiles are very mobile, and so, somehow, there is always a risk that if an officer has to go and obtain a warrant, he will lose the automobile and the opportunity to search, and that this circumstance turns every automobile search into an emergency.  Pennsylvania law, perhaps a little more cogent, does not follow this rule.  Thus, in Pennsylvania, police must get a warrant or establish both probable cause and an emergency.  This rule, combined with the fact that officers who impound vehicles are generally permitted to conduct "inventory searches" of those vehicles as a matter of course for safety and to secure the motorists' belongings, has undoubtedly led to the impoundment of a fair amount of vehicles.  Thompson will likely address this intersection and reevaluate the strictures around inventory searches going forward.  It will be interesting to see the Court try to untie the knot.

Precedential Opinions

PA State Police v. ACLU, 44 MAP 2022 (Majority Opinion by Wecht, J.) (holding the Commonwealth Court erred in sua sponte remanding a case to the Office of Open Records to give the Pennsylvania State Police a second opportunity to establish that the subject records were exempt from disclosure)

• See also Dissenting Opinion by Mundy, J. 

Klar v. Dairy Farmers of America, 29 WAP 2022 (Majority Opinion by Wecht, J.) (rejecting a litigant's attempt to expand Dram-Shop and negligent-furnishment liability to social hosts)

Bindas v. PennDOT, 27 WAP 2022 (Majority Opinion by Wecht, J.) (holding notice requirements precedent taking property for highway construction were required to effect condemnation)

• See also Dissenting Opinion by Donohue, J.

In Re: Koepfinger, 20 WAP 2022 (Majority Opinion by Donohue, J.) (holding that where a power of attorney is void, actions taken by the attorney in fact are likewise void)

Commonwealth v. Towles, 796 CAP (Majority Opinion by Brobson, J.) (reviewing application fo the time-bar provisions of the PCRA in a capital serial PCRA case)

• See also Concurring Opinion by Donohue, J.

• See also Concurring Opinion by Wecht, J.

Allocatur Grants

Commonwealth. v. Greer, 47 MAL 2023 (granting review to consider whether, in appeals in which petitioners are claiming both PCRA court error and ineffective assistance of PCRA counsel for the first time on appeal, an appellate court should consider the claims of error before remanding for further proceedings on potential claims of ineffectiveness)  

In Re: Estate of Caruso, 43 WAL 2023 (granting review to consider whether and under what circumstances a non-party to a partnership agreement may assume the rights and obligations of a partner)

Commonwealth v. Stevenson, 12 EAL 2023 (granting review to consider whether a defendant's preemptive introduction of a prior conviction waives any challenge to the trial court's pretrial determination that it was admissible)

Commonwealth v. Thompson, 113 MAL 2023 (granting review to consider the constitutionality of warrantless inventory searches of automobiles)

Commonwealth v. Drayton, 88 MAL 2023 (granting review to consider whether claims of ineffective assistance of counsel in failing to object to the provision of written jury instructions to the jury constitutes must be reviewed for actual prejudice)

Cole v. DEP, 312 & 313 EAL 2021 and West Rockhill Twp v. DEP, 415 & 416 MAL 2021 (granting review to consider whether the Third Circuit, a state regulatory agency, or both, have jurisdiction over challenges to DEP action relative to interstate energy projects)

BONUS Recommended Reading

This November, Pennsylvania voters will weigh in on statewide judicial vacancies of equal importance: one for the Commonwealth Court and one on the Supreme Court. The latest report from Protect Democracy highlights the court's critical role in deciding election-related cases in 2020 through present, and reflects on how the outcome of this years' race could shape future decisions related to election administration, voting rights and checks & balances. Read more at https://protectdemocracy.org/work/all-eyes-on-pennsylvania-scopa-elections/ 👀