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SCOPABlog

Authored by Pennsylvania appellate attorney Corrie Woods, Esq., SCOPABlog is the only regular blog providing comprehensive monthly coverage of and commentary about the Supreme Court of Pennsylvania’s precedential opinions and allocatur grants. We strive to provide an thoughtful and unbiased resource for attorneys practicing in Pennsylvania and to members of the public interested in the Court’s work.

In addition to authoring SCOPABlog, Corrie also hosts The Standard of Review, the only podcast dedicated to covering decisions of the Supreme Court of Pennsylvania, which features guest attorneys who have litigated complex and important issues before the Court.

Corrie Woods Corrie Woods

November 2021 Docket Review

This month, the Court issued 9 precedential opinions and 9 allocatur grants.

On the opinion side, the standout is J.S., in which the Court addresses the thorny issue of balancing students' free speech with the government's interest in protecting the school environment, in the context of a student's private communication of school-shooting related Snapchat memes with another student.  The case contained a lot of features that are often hazards for a state appellate court: a technological difficulty in attempting to understand the evolving nature of technology-based communications; a cultural difficulty in attempting to understand meme and youth culture and their concomitant layers upon layers of irony; a legal difficulty in attempting to divine how the meaning of caselaw from the Johnson administration applies today; and the political difficulty that the law might require the court to stand up for distasteful conduct in a school, particularly in an era of constant reminders of gun violence in schools.  But the Court, led by Justice Todd, was not only able to grok the memes, but ably explained their cultural position and the legal precedent, and arrived at a well-considered and well-balanced position, regardless of the political winds.  Indeed, the opinion called to mind some of the work of former Chief Justice Ralph Cappy, who was nearly universally renowned for his ability to distill extremely difficult concepts into clear and concise writing.  Or, as the folks on Reddit say, to "explain like I'm five."

On the allocatur side, there is not a case likely to generate much mainstream press, but it is worth noting that a full 4 allocatur grants involve areas of law that the Court seems to revisit all the time: in McGuire, the Court will address aspects of the Political Subdivision Tort claims Act; in Bell, it will address Pennsylvania's charter-school regime; in Mione, it will address another insurance "stacking" issue; and in Hawkins, it will address a particular application of the Right to Know Law.  Although I don't know the Justices' particular points of view, I suspect the Court does not perennially revisit these issues because they are interesting and enjoyable.  Rather, whether due to political compromises, or just plain poor draftsmanship, the organic law in these areas is often so vague, ambiguous, or incomplete as to require the Court to weigh in over and over again, diverting over the years significant time and energy to issues that the legislature could resolve much more expeditiously and, in some cases, without significant controversy.  That said, and perhaps because sovereign immunity and stacking waivers are not likely to be significant issues in the 2022 legislative elections, I expect the Justices will be discussing these issues for quite a long time.

Precedential Opinions

Hughes v. UGI Storage Co., 49 MAP 2021 (Opinion by Saylor, J.) (holding that a quasi-public entity need only have general condemnation authority to be subject a reverse condemnation action)

Peters v. Workers Comp. Appeal Bd., 1 MAP 2020 (Opinion by Mundy, J.) (providing history and guidance as to the application of the "traveling employee doctrine" as it pertains to workers' compensation benefits)

Commonwealth v. Dunkins, 45 MAP 2020 (Opinion by Dougherty, J.) (holding a criminal defendant abandoned any constitutional privacy interest in data gleaned from college wi-fi network via acquiescing in its computing resources policy)

J.S. v. Manheim Twp. Sch. Dist., 2 MAP 2021 (Opinion by Todd, J.) (adopting factors test for whether alleged threats are protected speech and holding school district improperly expelled student for sharing school-shooting-related memes with another student while off school premises)

Greenwood Gaming & Entertainment, Inc. v. Commonwealth, 19 MAP 2020 (Opinion by Todd, J.) (holding that "comped" concert tickets to casinogoers do not constitute "services" for purposes of calculating a casino's taxable revenues under the Gaming Act)

Commonwealth v. Pacheco, 42 MAP 2020 (Opinion by Baer, C.J.) (holding that orders authorizing the disclosure of cell-site location data pursuant to the Wiretap Act were the functional equivalent of search warrants)

Commonwealth v. Wharton, 788 CAP (Opinion by Mundy, J.) (rejecting numerous claims in a capital-PCRA appeal)

Quigley v. Unemployment Comp. Bd. of Rev., 20 EAP 2020 (Opinion by Todd, J.) (holding that the Board erred in sua sponte raising a claimant's eligibility for workers compensation benefits)

Fox v. Smith, 39 EAP 2019 (Opinion by Saylor, J.) (holding that venue for actions for internet-based defamation properly lies in all venues of publication)

Allocatur Grants

Commonwealth v. Armholt, 315 MAL 2021 (granting review to consider constitutional and statutory challenges to defendant's prosecution as an adult for crimes allegedly committed when he was a child)

McGuire ex rel. Neidig v. City of Pittsburgh, 177 WAL 2021 (granting review to consider a federal civil-rights action's collateral estoppel effect in a state action vis-a-vis the Political Subdivision Tort Claims Act)

Javitz v. Luzerne Cnty., 480 MAL 2021 (granting review to consider whether the Commonwealth Court improperly augmented the elements of a prima facie whistleblower case)

Commonwealth v. Humphrey, 252 MAL 2021 (granting review to consider the proper application of a statute permitting the dismissal of criminal charges against mentally incompetent defendants)

Bell v. Wilkinsburg Sch. Dist. 166 WAL 2021 (granting review to consider whether certain Department of Education regulations require school districts to obtain prior Department approval of new plans to provide transportation to charter-school students)

In re: April 24, 2018 Decision of the Charleston Twp. Zoning Hrg. Bd., 190 MAL 2021 (granting review to determine the appropriate test for when a zoning ordinance effects a de facto taking)

Gibraltar Rock, Inc. v. Pa. Dept. of Enviro. Prot., 441 MAL 2021 (granting review to consider numerous issues in a zoning case involving a Montgomery County quarry)

Erie Ins. Exch. v. Mione, 326 MAL 2021 (granting review to determine whether prior decision invalidating household exclusions in auto insurance policies applies in the absence of an attempt to circumvent statutory "stacking" requirements)

Central Dauphin Sch. Dist. v. Hawkins, 287 MAL 2021 (granting review to consider whether a student education record is subject to disclosure under the Right to Know Law)

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Corrie Woods Corrie Woods

October 2021 Docket Review

This month, the Court issued 6 precedential opinions (and 1 non-precedential opinion) and 5 grants of allocatur.

On the opinion side, the Court issued two decisions that are sure to multiply litigation.  First, in Firearm Owners Against Crime, it has again seemingly expanded the availability of standing to raise pre-enforcement challenges to legislation – in this case, municipal gun-control legislation – via actions for declaratory judgments.  As Justice Mundy writes in her majority opinion, the decision is the natural conclusion of a series of decisions that initially allowed litigants to raise pre-enforcement challenges where they face significant burdens in complying with statutes: here, the burden of forfeiting one's constitutional right to bear arms.  The line of decisions attempts to draw a line between the prudential doctrines attendant standing, which are designed to promote judicial minimalism, and the Declaratory Judgment Act, which is designed to provide parties with certainty.  But, in practice, the cases have taken courts, step by step, toward answering potentially purely academic, and often politically charged, questions, like the one in this case.  Whether the court can find a roadblock in a future case is unclear, but expect to see more and more challenges to new legislation.

Second, in Bradley, the Court has effected a sea-change in its PCRA jurisprudence, abandoning earlier decisions that provided an extremely narrow, 20-day pathway for petitioners to challenge the stewardship of PCRA counsel in favor of a more expansive approach permitting them to do so when they obtain new counsel, even if they happen to be on appeal.  The opinion, authored by Justice Todd, is something of a tour de force, detailing those earlier decisions and explaining at great length how their provision of that procedure was dicta, how the procedure practically forecloses review, and how the new procedure avoids offending the time-bar provisions of the PCRA.  It also represents a vindication of some of the majority Justices' long lines of secondary opinions explaining that the 20-day procedure was impractical and unfair.  After Bradley, expect to see every petitioner seeking new counsel on appeal and another round of counseled review.

On the allocatur side, I'm most interested in Jones (although Kornfeind certainly has the most interesting name).  Jones will address the all-too-frequent scenario in which a criminal defendant proceeding with a co-defendant to a joint trial is implicated by the co-defendant's confession, and, because of the co-defendant's right not to testify, is unable to confront and cross-examine him.  Frankly, the case law in this area has been obtuse, largely holding that so long as the confession doesn't name the defendant, or is redacted or modified so as to not name the defendant, it will generally be admissible. Yet, where a criminal defendant is at trial, seated next to his co-defendant, who has made a confession tying numerous facts to a mysterious "other man," it does not take a detective to deduce who that other man might be.  One hopes the Court has taken up review to consider bringing the theory of the law in this area into line with practice.

Precedential Opinions

Apartment Assn. of Metropolitan Pittsburgh, Inc. v. City of Pittsburgh, 26 WAP 2020 (Opinion by Wecht, J.) (holding state law preempts a Pittsburgh ordinance forbidding housing discrimination on the basis of source of income)

Rellick-Smith v. Rellick, 23 WAP 2020 (holding a trial judge erred in permitting amendment of an answer to plead a statute-of-limitations defense despite a prior judge's ruling that it had been waived pursuant to the coordinate jurisdiction rule, but on fractured rationales)

Firearm Owners Against Crime v. City of Harrisburg, 29 MAP 2020 (Opinion by Mundy, J.) (holding citizen members of firearms-rights group had individual and associational standing to bring a pre-enforcement declaratory-judgment action to challenge to Harrisburg's gun-control ordinance)

In the Interest of T.W., 22 EAP 2020 (Opinion by Mundy, J.) (holding an officer conducting a protective pat-down search of a suspect's outer clothing for weapons may remove an object from within the suspect's clothing if he has reasonable suspicion to believe it is a weapon)

Commonwealth v. Bradley, 37 EAP 2020 (Opinion by Todd, J.) (holding that petitioners pursuant to the Post Conviction Relief Act may assert claims of ineffective assistance of postconviction counsel at the earliest available opportunity, including on direct appeal)

In re: Appeal for Formation of an Independent Sch. Dist. Consisting of the Borough of Highspire, 58 & 59 MAP 2020 (Opinion by Donohue, J.) (holding that the Secretary of Education properly considered how a school district's secession from one school district and annexation by another would financially, and, thus, educationally, impact the existing school districts)

Trust Under Will of Ashton, 36 EAP 2020 (Opinion by Saylor, J.) (holding that a beneficiary has standing to assert claims against a trustee even where she cannot demonstrate current or future loss)

Allocatur Grants

Commonwealth v. Jones, 203 EAL 2021 (granting review to consider whether the admission of a defendant's non-testifying co-defendant's confession, replacing the defendant's name with "my friend," violated the defendant's right to confrontation)

Cowher v. Kodali, 259 MAL 2021 (granting review to consider whether medical-malpractice defendants' failure to submit a special verdict slip or object to a general verdict slip estopped them from seeking a new trial on damages on the ground that there should have been a special verdict slip)

Marion v. Bryn Mawr Trust Co., 311 MAL 2021 (granting review to consider the Superior Court's purported adoption of a new tort of aiding and abetting fraud, among other issues)

Clean Air Council v. Commonwealth, et al., 131 MAL 2021 (granting review to consider the standard of review for a legal issue and the substantive law governing certain fee awards in an environmental case)

Kornfeind v. New Werner Holding Co., 485 EAL 2020 (granting review to consider whether the phrase "period of limitation" in Pennsylvania's borrowing statute also includes statutes of repose)

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Corrie Woods Corrie Woods

September 2021 Docket Review

This month the Court issued 9 precedential opinions and 2 grants of allocatur.

On the opinion side, two cases this month, Reid and Flor, demonstrate an important feature/bug of the Court's jurisprudence.  In Pennsylvania, appeals in criminal cases generally are taken first to the Superior Court, then, if necessary, taken by the Supreme Court in its discretion.  If advocacy is particularly poor, or if the courts cannot resolve the issues in a clear and cogent way, this process provides several mechanisms to avoid these problems from spilling over into other cases.  At the Superior Court, judges faced with poor advocacy frequently issue non-precedential "memorandum" opinions.  At the Supreme Court, the court can simply decide that the advocacy below or in the petition for allowance of appeal is simply too poor to allow the appeal, or that the briefing is too poor or the issue too splintered to issue an opinion, and dismiss the appeal as improvidently granted.

In capital cases, however, appeal is taken directly to the Supreme Court, depriving it of the ability to use its discretion to protect the law going forward: the Court must take the case and must issue a decision which, if garnering the votes of a majority, is binding on future cases.  Making matters worse, capital criminal defense was once plagued by obvious incompetence (as Justice Saylor's Reid concurrence/dissent alludes to), and, although the Court has since required additional training, it is far from clear that the requirement has been effective in remedying the situation.  And where advocacy is better, because the stakes are so high, capital cases typically involve decades of litigation and serial petitions for collateral relief, and it often the case that advocates in capital cases take the unwise (if understandable) approach of raising a litany of arguably frivolous claims in the hope that one or the other of them will succeed.  This leads to increased complexity, confusion, and bulk before the lower courts, which compounds on appeal, which compounds on collateral attack, and so on, ad infinitum. Moreover, while the Superior Court is generally in the business of applying established law to the facts of particular cases in something of an assembly-line fashion, the Supreme Court is generally in the business of providing exegesis of a few discrete legal issues, so institutional core competencies are at play as well.  All of which is to say that capital appeals and capital PCRA appeals often lead to confusing, or just outright bad, law.  Indeed, an attorney attempting to figure out Flor will need some time to piece together the patchwork of opinions, could certainly be forgiven for coming to the conclusion that it doesn't say much, and would likely agree with several of the Justices that the case was not an adequate vehicle for the announcement of the new rules it provides.

Ostensibly, this special mechanism owes to the fact that capital cases have high stakes, and so warrant certain consideration of the Commonwealth's highest court.  Yet, one could reasonably argue that review by the Superior Court in the first instance and by the Supreme Court at the allocatur stage is more rigorous.  A more cynical view would be that the mechanism is a shortcut designed to speed up capital cases and reach finality.  Yet, it rarely does: indeed, the Court's consideration of capital cases may well take longer than the Superior Court's would, in part due to the fact that the Court must think ahead in terms of precedent.  And in any event, most capital cases, particularly in Pennsylvania, do not reach finality before the defendant dies in prison.

For my part, failing the legislature's decision to dispense with this mechanism entirely, I think the Court would be well-advised to adopt a formal rule or otherwise hold that capital cases are less precedentially valuable than those subject to the Court's other criminal cases.  Such a rule would ensure thorough consideration by the Court, but would allow it to avoid the shortcomings that consideration leads to in future cases.  In the meantime, we beat on, boats against the current, borne back ceaselessly into the past.

On the allocatur side, I'm most interested in Brown.  Several years ago, in Commonwealth v. Walker, 92 A.3d 753 (Pa. 2014), the Court decided a similar issue, holding expert testimony about certain psychological effects on eyewitness perception and memory was generally admissible.  Since then, prosecutors in some areas have attempted to introduce their own expert testimony about certain alcohol and drug-related effects on eyewitness perception and memory, which the Court will address in Brown.  Although the comparison seems 1 to 1 at a superficial level, there are certainly grounds to distinguish them.  In Walker, for example, psychologists testified to the fact that cross-racial identifications are inherently weaker, which is certainly counterintuitive and not within common knowledge.  Here, on the other hand, the experts would ostensibly be testifying that intoxicated people are less reliable in their perception or memory, which is not exactly a groundbreaking scientific discovery and could likely be attested to by anyone who has ever attended a raucous enough party. Additionally, Walker was decided alongside Commonwealth v. Alicia, 92 A.3d 753 (Pa. 2014), which involved expert testimony about psychological effects on confessions, which the Court paradoxically held was generally inadmissible.  In my humble opinion, the cases were intractably irreconcilable from the start, and Brown may provide the Court an opportunity to provide some guidance as to which of the two should prevail.

Precedential Opinions

Commonwealth v. Reid, 784 CAP (Opinion by Baer, C.J.) (rejecting numerous factual claims in a capital PCRA case but remanding for a supplemental opinion as to one such claim)

United Blower, Inc. v. Lycoming Cnty. Water and Sewer Auth., 3 MAP 2021 (Opinion by Wecht, J.) (clarifying the appropriate calculation of costs under the Steel Act's provisions regarding use of American-manufactured steel)

Mohn v. Bucks Cnty. Republican Cmte., 74 MAP 2020 (Opinion by Saylor, J.) (holding that litigants must demonstrate discrete state action to vest trial courts with jurisdiction over intra-political-party disputes and suggesting even that may not be enough)

Commonwealth v. Purnell, 71 MAP 2020 (Opinion by Baer, C.J.) (holding that the provision of a "comfort dog" to a witness is permissible if the degree to which it aids the witness in testifying is greater than the likelihood of prejudice to the defendant's right to a fair trial)

Brooks v. Ewing Cole, Inc., 4 EAP 2021 (Opinion by Mundy, J.) (holding that a trial court's order denying summary judgment on the basis of sovereign immunity is a collateral order appealable as of right pursuant to Pa.R.A.P. 313)

Commonwealth v. Flor, 771 CAP (affirming denial of relief in a capital PCRA case)

  • See Opinion of Mundy, J.Opinion of Mundy, J. (holding insofar as it is precedential that the petitioner's claims of intellectual disability, being subject to an unconstitutional aggravating sentencing factor, and jury taint lacked merit)

  • See Opinion of Wecht, J. (holding that a claim of intellectual disability is a claim sounding in the legality of sentencing and thus nonwaivable, that it is cognizable pursuant to the PCRA, and holding that petitioner's claimed prosecutorial misconduct was cured by the trial court's instructions on the law)

  • See also Opinion of Saylor, J. (indicating a preference to remand for an adequate opinion, but concurring in the above-detailed parts of the other opinions and concurring in the result)

  • See also Opinion of Dougherty, J. (indicating a preference not to answer whether a claim of intellectual disability sounds in the legality of sentence and/or is cognizable under the PCRA in the absence of better advocacy)\

K.N.B. v. M.D., 20 WAP 2020 (Opinion by Wecht, J.) (holding that a petition for a protective order under the Protection of Victims of Sexual Violence or Intimidation Act is subject to the catchall six-year statute of limitations)

Pascal v. City of Pgh. Zoning Bd. of Adjustment, 22 WAP 2020 (Opinion by Dougherty, J.) (holding that zoning-board decision was timely filed by virtue of the parties' agreements to keep the record open for an extended period of time, but vacating decision and remanding for a new hearing due to a board member's conflict of interest)

Commonwealth v. Raboin, 9 WAP 2020 (Opinion by Mundy, J.) (holding the introduction of nearly all of a child witness's recorded interview pursuant to the rule of completeness was improper and remanding for a determination of whether it was admissible as a prior, consistent statement)

Allocatur Grants

Goodwin v. Goodwin, 130 MAL 2021 (granting review to consider whether the payment of life-insurance and individual-retirement-account proceeds to a beneficiary is a "gift" and therefore not marital property subject to equitable distribution)

Commonwealth v. Brown, 183 EAL 2021 (granting review to consider whether an expert witness may opine as to blood alcohol content's effect upon memory and perception despite the jury's role as the sole arbiter of credibility)

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Corrie Woods Corrie Woods

August 2021 Docket Review

This month, the Court issued 10 precedential opinions and 13 grants of allocatur (or its equivalent).

On the opinion side, I'm most interested in Howard, in which the Court's ostensible question is whether a parent's mere failure to put a child in a car-seat in a car-for-hire constitutes the criminal offense of endangering the welfare of a child, or EWOC.  The Court by a vote of 6 Justices to 1 Justice held that it does not, but that may be the least interesting aspect of its decision.  The Lead Opinion, authored by Justice Todd and joined by Justice Donohue, cogently explains that the offense has been interpreted to incorporate the "norms of the community," apparently to prevent it from being voided for vagueness, quite some time ago.  See generally Commonwealth v. Mack, 467 Pa. 613 (Pa. 1976).  Its unremarkable application of that gloss, however, provoked something of a tempest from a majority of Justices, who would prefer to keep interpretation a more formalistic enterprise and jettison the rubric entirely.  And although the lead did not garner Justice Mundy's joinder on the whole, she did not challenge its reliance on the "norms of the community."

A couple of puzzlers here.  First, how do we interpret EWOC going forward? If we view precedent as a formalistic endeavor, the holding of Howard is specifically about car-seats, the "norms of the community" rubric remains applicable, and any challenge to it is simply writing on a blank slate.  But if we view it as a predictive one – i.e., an attempt to determine what the courts will say – it would appear that the "norms of the community" analysis is gone, since a majority of the Court has rejected it.  That said, if we really view it as a predictive one, we may be back to square one: if you are litigating a case involving EWOC right now, it is not likely to reach the Supreme Court before Justice Saylor's impending retirement; a new Justice's commission, and potentially even Chief Justice Baer's retirement and a new Justice's commission.  Might be wise to work out a plea.

Also, just below Howard's surface (and in the broadsides of Justice Wecht's concurrence) is a never-ending argument about the proper role of the legislature and the judiciary.  Those favoring a more formalistic interpretive approach and legislative responsibility for the criminal law (including Justice Wecht) have compelling arguments based on a fairly grotesque history of common-law crimes on their side.  On the other hand, we live at a time, and in a state, where legislatures have never met a new crime or an increased sentence they didn't like, and never met a criminal defendant that they did.  Although Justice Wecht's points about the vagaries of common-law crimes and rhapsodic jurisprudence are well-taken, in this environment, one can certainly see why a judge would not be so eager to dispense with a means whereby the legislative torrent of new crimes and punishments might be abated in some small degree.

I'm also interested in Rawls, in which the Court appears to take the appellant to task to some degree for attempting to liberalize federal constitutional law regarding police interrogations and the right to counsel that, frankly, has been largely ossified by conservative U.S. Supreme Court majorities for decades.  It's a good reminder that although this Court is one that is almost uniformly open to protecting the procedural rights of criminal defendants in new ways, or event rolling back its more arch-conservative old decisions that submarined them, it has not simply welcomed any argument that helps them.  That said, I do find it notable that the Court unanimously left open the possibility that the parallel rights under the Pennsylvania constitution might be more broadly interpreted.  If an attorney has a case where a defendant has been charged before being interrogated, he or she would do well to read Edmunds and dig into the wonderful world of state constitutional analysis.

On the allocatur side, Lopez, in which the Court has granted to review to determine whether a trial court must determine a defendant's ability to pay court costs, which can be exponential, would appear to be one of the more far-reaching decisions, as its holding will likely govern every sentence handed down in Pennsylvania thereafter.  Underlining that point, the Court also permitted four interested parties — the Controller of Allegheny County, Philadelphia Lawyers for Social Equity, the Pennsylvania Interbranch Commission for Gender, Racial, and Ethnic Fairness, and the American Civil Liberties Union — to submit amicus curiae briefs.  (As a side note, the aforementioned Controller of Allegheny County is currently an odds-on favorite to leave her office in favor of a seat on the Court of Common Pleas of Allegheny County, likely before this matter is briefed).  In any event, it will be interesting to see the Court's ultimate disposition and balance between its concern for impoverished defendants and local budgets.

And personally, I'm looking forward to Drummond, in which the Court will address a pet-peeve of mine: a trial judge's decision during criminal jury instructions to provide a "helpful" example of a reasonable doubt, which is generally defined abstractly as one "which would cause a reasonable person to hesitate before acting in a matter of importance in his or her own affairs."  Just off of the top of my head, I recall trial judges offering the following "helpful" examples:

  • choosing to continue on your commute after fearing having left a door unlocked;

  • choosing to continue on your commute after fearing having left an iron on;

  • choosing a place to live;

  • choosing a job;

  • choosing a spouse; and

  • choosing to have surgery.

In Drummond, the trial court used the latter example.  Putting aside for the moment that the mere incantation of such examples can put psychological stress on a juror and make him or her more predisposed to convict, each of the examples involves highly subjective and highly different degrees of doubt warranting hesitation (at least one hopes that a reasonable person is more doubt-averse when marrying than leaving the garage door open).  And prosecutors and defense attorneys alike are forced to conform their summations to whichever of these disparate and malapropos illustrations jurors are be provided.  It will be encouraging, and relaxing, for any trial practitioner, if the Court provides some guidance on the order of "cut it out."

Precedential Opinions

Commonwealth v. Howard, 8 WAP 2021 (fractured case) (holding the mere fact that a parent allowed her child to ride in a car-for-hire without being secured in a car-seat is insufficient to support a conviction for knowingly endangering the welfare of a child)

In re: Hon. Stephanie Domitrovich, 9 WAP 2021 et al. (Opinion by Baer, J.) (quashing appeal from purely administrative order as interlocutory, declining to exercise King's Bench jurisdiction to review it, and indicating an intent to resolve the controversy internally)

Commonwealth v. Cobbs, 56 MAP 2020 (Opinion by Baer, C.J.) (holding conviction for assault by life prisoner infirm where underlying life sentence was subsequently vacated as violative of Eighth Amendment prohibitions on juvenile-offender life sentences and holding that the offense's definition of "life" does not include sentences to terms of years, even if accompanied by a maximum term of life imprisonment)

Commonwealth v. Rawls, 49 MAP 2020 (Opinion by Saylor, J.) (holding that police-interrogators have no duty to inform an arrestee that he has been charged with a crime)

Commonwealth v. Jordan, 31 WAP 2020 (Opinion by Dougherty, J.) (holding that a defendant who proceeds to simultaneous jury and bench trials in the context of a single prosecution may not rely on one or the other for double jeopardy and collateral estoppel purposes)

In the Interest of S.K.L.R., 5 WAP 2021 et. al. (Opinion by Baer, C.J.) (holding abuse of discretion/error of law standard of review applies to terminations of parental rights and finding the Superior Court exceeded the appropriate standard of review in that regard)

Leadbitter v. Keystone Anesthesia Consultants, 19 WAP 2020 (Opinion by Saylor, J.) (holding certain portions of hospital's credentialing file for an alleged medical malpractice tortfeasor were protected from discovery by the Peer Review Protection Act and federal Heath Care Quality Improvement Act)

Commonwealth v. Edwards, 26 EAP 2020 (Opinion by Mundy, J.) (holding that the offenses of recklessly endangering another person and aggravated assault do not merge for purposes of sentencing and forswearing as-applied merger generally)

Donovan v. State Farm, 17 EAP 2020 (Opinion by Baer, C.J.) (holding an insured's signature on a statutorily-required UIM-stacking waiver does not apply to inter-policy stacking for multiple-vehicle policies; that a household vehicle exclusion is unenforceable absent a valid waiver of inter-policy stacking; and that a policy's coordination of benefits provision provision for unstacked UIM coverage does not apply absent a valid waiver of inter-policy stacking)

Commonwealth v. Dixon, 30 WAP 2020 (Opinion by Saylor, J.) (holding that trial judge's instruction that an element had been satisfied violates the federal constitutional right to trial by jury)

Allocatur Grants

Commonwealth v. Prinkey, 319 WAL 2020 (granting review to consider whether a claim of judicial vindictiveness sounds in the legality of sentencing within the meaning of the Post Conviction Relief Act)

Commonwealth v. Donahue, 70 WAL 2021 (granting review to consider a challenge to the sufficiency of the evidence of mens rea under the offenses of theft by deception and home improvement fraud)

Commonwealth v. Wilson, 21 MAL 2021 (granting review to review Superior Court's denial of petition for interlocutory appeal by permission based on earlier decision involving requests for reconsideration)

Commonwealth v. Drummond, 90 EAL 2021 (granting review to consider claim that trial counsel was ineffective in failing to challenge the trial court's instruction on reasonable doubt by providing a practical example)

Commonwealth v. Lopez, 178 EAL 2021 (granting review to consider whether Pa.R.Crim.P. 706(C) requires an ability-to-pay determination prior to the imposition of mandatory costs)

Commonwealth v. Camby, 188 MAL 2021 (granting review to consider whether the touching and kissing of one's neck without consent constitutes indecent contact with an "intimate" part of one's body within the meaning of the offense of indecent assault).

Commonwealth v. Stevenson, 83 WAL 2021 (granting review to consider whether indirect criminal contempt can be predicated on notice of a court order by a non-authorized third party)

Commonwealth v. Thorne, 99 WAL 2021 (granting review to consider whether challenges to certain sexual offender registration requirements are nonwaivable challenges to the legality of sentence)

Commonwealth v. Coleman, 66 WAL 2021 (granting review to consider whether a mandatory minimum sentencing provision applicable to multiple third-degree homicides should apply where the perpetrator commits the first and second third-degree homicide simultaneously)

A.L. v. Pennsylvania State Police, 176 MAL 2021 (granting review to address issues arising in comparison of military offenses to Pennsylvania criminal offenses)

O'Neill v. State Employees Retirement System, 452 EAL 2020 (granting review to consider the Commonwealth Court's analysis in determining and determination that a federal offense was substantially similar to a state offense for purposes of state employee pension forfeiture)

Khalil v. Williams, 53 EAL 2021 (granting review to consider whether to overturn earlier decision barring legal malpractice suits arising out of settled cases absent an allegation of fraud and/or its application therein)

Ebert v. C.R. Bard, Inc., 38 EM 2021 (granting review to consider issues of negligent design products-liability as applied to prescription implantable medical devices)

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Corrie Woods Corrie Woods

July 2021 Docket Review

This month, the Court issued 11 precedential opinions and 4 grants of allocatur.

On the opinion side, although the Court issued two headline grabbers this month -- Rice, which involves the Catholic-Church sex-abuse scandal; and In re: Amazon, which involves a lot of workers and some guy named Jeff who recently went to space for fun -- it also issued two opinions that will be of interest to law nerds like your author.  First, in Fitzpatrick, Justice Wecht grapples, quite successfully, with the thorny overlap of the rule against hearsay and the "state of mind exception" thereto, which feat was likely made all the more difficult by Pennsylvania's somewhat confused jurisprudence on the issue, and a bit easier by the fact that former-Chief Justice, now-Justice Saylor had identified the lions share of the problems with the rules in earlier writings.  The facts of Fitzpatrick were remarkable, a wife apparently murdered by her husband who had previously written, essentially, "I think my husband is going to kill me."  Such a statement is undisputably inadmissible hearsay in some contexts, and undisputably admissible "state of mind" evidence in others.  Justice Wecht wades into the thicket and provides a primer that is broad enough and accessible enough to make its way into a law school textbook.  

And lest this blog turn into an ersatz Justice Wecht fanpage, I'd also direct you to Mortimer, which is, interesting?  Some time ago, the Court granted allocatur to consider whether and under what circumstances to adopt "enterprise liability" in Pennsylvania.  That is, essentially, whether and under what circumstances a plaintiff with a judgment against one corporation might "pierce the corporate veil" and enforce it against another.  Many in the business law community (and, after they told their clients and spent some time explaining the often bizarre doctrine of veil-piercing, many in the business community) feared the Court was about to declare a proverbial open season on complex business enterprises.  But ultimately, to no end.  Although the Court provides a similarly academic review of corporate veil-piercing in Pennsylvania, he ultimately ends up declining to answer the question in any definitive fashion, and instead indicating that a plaintiff "might" avail itself of enterprise liability in extremely narrow circumstances, such as where corporations are completely unified in ownership and engaged in some type of fraud or wrongdoing.  Putting aside for the moment that the savvy crook will simply find a partner for his shell corporation, Mortimer's academic discussion may be all for naught: if and when the issue returns to the Court, who knows what its composition or its inclination will be?  On one hand, the future Court may read Mortimer, give due respect to its thoughtful analysis, and formally adopt its rule.  On the other hand, the future Court may declare the thrust of the opinion to be nonbinding dicta, throw it out the proverbial window, and do as it pleases.  

On the allocatur side, not much, but Price provides another example of the Court's increasingly tight leash on the intermediate appellate courts.  In that case, the Court appears poised to consider whether the Superior Court improperly entertained a waived claim and improperly reversed on an alternative basis.  Whether or not it did so, it is not typical of the Court to play such small ball: generally, simple errors in case-specific circumstances are left to the lower courts' own institutional bailiwicks, and allocatur is reserved for issues with more widespread application.  The Court's apparent imposition of a closer watch on the lower courts may reflect a change in its institutional values, political disagreement with the more-conservative lower courts, or a concern that the Superior Court -- the busiest court in the nation -- is unable to keep its assembly-line-like docket moving swiftly without a backstop.  In any event, litigants should take note that the Court is increasingly comfortable taking up review to correct clear errors.

Precedential Opinions

Commonwealth v. Fitzpatrick, 6 MAP 2020 (Opinion by Wecht, J.) (holding homicide victim's statements as to who would kill her were not admissible pursuant to the "state of mind" exception to the hearsay rule and creating a clear analytical framework for the admissibility of similar statements)

Commonwealth v. Satterfield, 66 MAP 2020 (Opinion by Donohue, J.) (holding that convictions for "accidents involving death or personal injury," commonly known as hit-and-run, are subject to but one sentence per accident, rather than one sentence per death or personal injury).

Pennsylvania Environmental Defense Foundation v. Commonwealth, 64 MAP 2019 (Opinion by Donohue, J.) (holding that certain diversion of revenue generated from Commonwealth oil-and-gas leases to the General Fund violated the Environmental Rights Amendment to the Pennsylvania Constitution, which requires that such revenues be held in trust for the conservation and maintenance of public natural resources)

Mortimer v. McCool, 37 & 38 MAP 2020 (Opinion by Wecht, J.) (holding, arguably in dicta, that "enterprise liability" whereby judgments against one corporation may be enforced against affiliated corporations in alter-ego/fraud situations, but declining to apply it to the case at bar, in which there was not uniformity in the ownership of the corporations)

In re: Adoption of C.M., 1 MAP 2021 (Opinion by Dougherty, J.) (rejecting the Superior Court's reversal of termination of father's parental rights on the ground that mother was engaged in "custody gamesmanship" in voluntarily relinquishing parental rights but continuing to live with the pre-adoptive maternal grandparents and to maintain a parental role, but affirming on the ground that the termination was otherwise unsupported by sufficient evidence)

U.S. Venture, Inc. v. Commonwealth, 51 MAP 2020 (Opinion by Donohue, J.) (holding that the Commonwealth is immune from claims arising from certain grant agreements)

McKelvey v. Pa. Dept. of Health, 3 MAP 2020 (Opinion by Todd, J.) (providing thorough analysis of Right-to-Know-Law requests for various medical marijuana permit records)

McCloskey v. Pa. Pub. Util. Commn., 24-26 MAP 2020 (Opinion by Baer, C.J.) (affirming Commonwealth Court's holding that public utilities must revise distribution system improvement charges to reflect tax deductions and credits)

City of Johnstown v. WCAB (Sevanick), 28 WAP 2020 (Opinion by Donohue, J.) (holding that certain firefighter cancer claims are not subject to the default, 300-week time limit applicable to most workers' disability or death claims under the Workers' Compensation Act, but, rather, a separate 600-week statutory time limit)

Rice v. Diocese of Altoona-Johnstown, 3 WAP 2020 (Opinion by Donohue, J.) (holding that various claims arising out of the Catholic-Church sex-abuse scandal were barred by the applicable statute of limitations)

Commonwealth v. Baker-Myers, 54 WAP 2019 (Opinion by Dougherty, J.) (holding that a defendant convicted of corruption of minors under statutory subsection requiring a sexual offense, but acquitted of all sexual offenses, was entitled to a judgment of acquittal notwithstanding the jury's verdict)

In re: Amazon.com, Inc., Fulfillment Center Fair Labor Standards Act (FLSA) and Wage and Hour Litigation (Opinion by Todd, J.) (holding that an employee's time spent on an employer's premises awaiting mandatory security screening constitutes time "worked" for purposes of Pennsylvania's Minimum Wage Act, and that the maxim de minimum non curat lex, or, the law does not care for trivialities, does not apply to time worked for purposes of that Act)

Allocatur Grants

Owens v. Ardmore Automotive, 58 EAL 2021 (granting review of Superior Court's denial of a stay to determine whether the plaintiffs' claims are barred by the Workers' Compensation Act's exclusivity clause)

Commonwealth v. Price, 54 WAL 2021 (granting review to consider whether the Superior Court erred in reversing a suppression order via application of inevitable discovery principles not properly before it)

In re: Private Complaint Filed By Luay Ajaj, 324 MAL 2021 (granting review to consider whether the Superior Court erred in affirming a lower court's order overturning the Commonwealth's disapproval of a private criminal complaint)

Commonwealth v. Gallaway, 40 WAL 2021 (granting review to consider the admissibility of a video depicting the defendant in jail garb)

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Corrie Woods Corrie Woods

June 2021 Docket Review

This month, the Court issued 4 precedential opinions and 5 grants of allocatur.

On the opinion side, the far-and-away headline-grabbing case is Cosby, in which the Court held that convicted sexual offender Bill Cosby was entitled to enforcement of former Montgomery County District Attorney Bruce Castor's assurance that he would not prosecute Cosby criminally, which Cosby relied on in giving testimony in a related civil action, only to have DA Castor's successors change their minds, prosecuting him and using his testimony in that civil action in the process.  (Particularly informed citizens may recall former DA Castor from his less than cogent presentation in last year's second set of Presidential impeachment proceedings.)  

A couple of takeaways.  First, although the Court was divided, it was certainly not divided on political lines.  The majority opinion was authored by Justice Wecht, and joined by Justice Donohue (they, the two most reliably liberal Justices), Justice Todd (perhaps the "middle Justice" in criminal cases at the moment), and Justice Mundy (certainly the most conservative in criminal cases).

Second, Cosby rests on a long line of decisions holding that defendants are entitled to the benefits of their plea bargains, but seems to increase the scope of those decisions from those narrow circumstances to impose a more general contract overlay to defendants' waivers of rights.  Depending on just how general, Cosby could create some amount of uncertainty in the criminal process.  Prosecutors in Pennsylvania routinely make assurances and indications as to their conduct going forward to induce defendants to take some action or another.  Suppose a prosecutor tells defense counsel that if his client waives his preliminary hearing, he'll attempt to obtain his admission into treatment court, but the prosecutor later gives less than his full effort to do so.  Is the defendant now entitled to litigate whether the prosecutor has acted in good faith and fair dealing?  Suppose a prosecutor indicates he will leave a plea on the proverbial table for 30 days, but later learns information that would suggest it is no longer appropriate.  Is he bound?  Suppose a prosecutor orally agrees to "consolidate" a defendant's plea?  Is the defendant now entitled to formal consolidation of all of his cases or concurrent sentences because he has reasonably interpreted that ambiguous term to have that meaning? 

As always, in a perfect world the best practice for conscientious practitioners would be to reduce any agreement formally to include their negotiated terms and exclude any others.  But given the heft of criminal dockets and the practicalities of criminal practice, such written, negotiated agreements are extremely rare.  There is little time for dickering and contractual revision in a proceeding among 50 others at a magisterial district court.  Going forward, expect a fair amount of litigation as we determine just how much criminal law is now contract law.

On the allocatur side, one item of note is the frequency with which the Court is now considering whether the intermediate appellate courts "violate the applicable standard of review" by misapplying it.  Indeed, 2 (possibly 3) of the 5 grants of allocatur this month fit this mold.  Such an issue used to be regarded as error review, which is anathema to the Court, but is now routinely the basis for appeal.  Is that change wise?  Granting review to reiterate and apply the applicable standard of review and do justice in individual cases has some facial appeal, but it necessarily takes attention and resources from the Court's other cases addressing complex issues of law and policy.  And, at least in this author's opinion, the Court's new practice appears to transgress to some degree into the intermediate courts' institutional bailiwick.  Nevertheless, appellate practitioners who think the Court may have a difference of opinion on the facts would do well to frame their claims in this manner.    

Precedential Opinions

Commonwealth v. Cosby, 39 MAP 2020 (Opinion by Wecht, J.) (enforcing district attorney's indication he would not prosecute relied upon by defendant in testifying in a collateral civil matter)

DeGliomini v. ESM Productions, Inc., 5 EAP 2020 (Opinion by Dougherty, J.) (holding a bike-race participant's waiver of liability arising from the City of Philadelphia's failure to maintain and repair its streets violates public policy)

Domus, Inc. v. Signature Bldg. Sys. of Pa., 54 MAP 2020 (Opinion by Dougherty, J.) (holding a party's failure to authenticate a foreign judgment under the Uniform Enforcement of Foreign Judgments Act does not deprive the Court of Common Pleas of subject matter jurisdiction)

Commonwealth v. Harth, 13 EAP 2020 (Opinion by Todd, J.) (holding that judicial delay is only excludable for purposes of criminal-procedural speedy-trial rights where the Commonwealth has simultaneously exercised due diligence)

Allocatur Grants

In re: Adoption of L.A.K., 132-33 WAL 2021 (granting review to consider whether the Superior Court violated the applicable standard of review and erred in determining that a parent's entrance into alcohol recovery cannot be viewed as overcoming a barrier to reunification)

Kneebone v. Zoning Hearing Bd. (Twp. of Plainfield), 498 MAL 2020 (granting review to consider whether the Commonwealth Court violated the applicable standard of review in reversing a granted dimensional zoning variance)

Naginey v. PennDOT, 72 MAL 2019 (granting review to consider whether a prior decision foreclosing driver's license suspensions concerning which the Commonwealth unduly delayed notification applies in the context of foreign-state-caused undue delays)

Hughes v. UGI Storage Co., 686 MAL 2020 (granting review to consider whether the Commonwealth Court erred in determining that the elements of a de facto taking include elements of a de jure itaking)

In re: Estate of Jabbour, 24 WAL 2011 (granting review to consider the validity of a revocation of a long-ago spousal-share election)

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Corrie Woods Corrie Woods

May 2021 Docket Review

This month, the Court issued 2 opinions and 5 allocatur grants.  I, too, like an early summer vacation.

On the opinion side, not a lot of breaking ground.  In fact, the most noteworthy decision issued by the Court this month is not a precedential opinion, but, rather, the Court's inability to reach a majority position in Commonwealth v. Fears, 781 CAP, which is the latest of many decisions implicating the now years-old Porngate e-mail scandal that led to the downfall of then-Justices Seamus McCaffery and Michael Eakin.  In Fears, a criminal defendant sought to use the emails shared by the Justices, which evidenced a host of repugnant prejudices against people of color, immigrants, LGBTQQIAA+, and other still-too-often maligned groups, not to mention criminal defendants, as the basis of for a claim of judicial bias in a petition for post-conviction relief.  After the trial court found that it had jurisdiction because Fears' claim was predicated on newly-discovered facts that he could not reasonably have discovered with due diligence (i.e. the Justices' private communications), it addressed the claim, but found it to be meritless.  Fears appealed as of right to the Supreme Court, where all three Justices who previously presided over Fears' earlier appeals -- Chief Justice Baer, former-Chief Justice, now-Justice Saylor, and Justice Todd -- recused, leaving only Justices Donohue, Dougherty, Wecht, and Mundy to consider the appeal.  Unfortunately, they deadlocked on the issue of jurisdiction, affirming the trial court's order without a binding rationale.

So what does this mean for criminal defendants who believe the former Justices' outward displays of prejudice might lead to a reasonable suggestion of impropriety in their particular cases?  In the short term (and, given the time restraints on filing petitions for collateral relief, probably for the vast majority of defendants for whom a claim of judicial bias arising from Porngate is a live one), first, it means that whether their claims are even justiciable will be left up to the trial judges in their respective counties.  On the one hand, if you are a criminal defendant who hasn't yet raised the claim, you are probably out of luck, as one imagines the time to discover Porngate with due diligence is running out.  On the other hand, if you have raised the claim, you will need to go 2-0 with your trial-court judge -- i.e., win on jurisdiction and on the merits -- and hope for the same win by per curiam affirmance.  Alternatively, you might be able to convince one of Justices Mundy or Dougherty that your case is different enough from Fears' to warrant their jumping ship on jurisdiction, and convince three Justices on the merits.  Or, if you are really lucky, you might try to keep your petition in the trial court until 2022, former-Chief Justice Saylor's retirement, and the installation of a new Justice who can break the tie on jurisdiction and then convince three Justices on the merits.  May the odds be ever in your favor.  Although this author is certainly not questioning the more senior Justices' decisions to recuse, the fact that their recusal (and the other Justices' inability to reach a binding result) has led to an attempt to interrogate racist and other offensive attitudes on the bench being dismissed on a procedural basis without a fair defeat is unfortunate to say the least.

On the allocatur side, also the sound of crickets (or are those cicadas?)  Still, one potentially interesting argument will be the one in Povacz and a bevy of related cases implicating issues relating to smart meters for public utilities and, in at least one of the issues presented therein, their safety or lack thereof in light of their transmission of radiofrequency (RF) radiation, an issue that is either a product of paranoiacs or an existential threat to humanity, depending on whom you believe.

Precedential Opinions

In re: B.W., 14 WAP 2020 (Opinion by Mundy, J.) (holding that where an involuntary mental health commitment is predicated on threats of harm and acts in furtherance thereof, it must be supported by evidence of both, but that planning activity qualifies as the latter)

See also Concurring and Dissenting Opinion by Todd, J.

Commonwealth v. Rogers, 8 EAP 2020 (Opinion by Saylor, J.) (holding that a sexual-offense victim's prior convictions for prostitution with individuals other than the defendant, except in special circumstances, are inadmissible pursuant to the Rape Shield Law) 

See also Concurring Opinion by Mundy, J.

Allocatur Grants

Reibenstein v. Barax, 616 MAL 2020 (granting review to consider the meaning of "cause of death" within the meaning of the MCARE Act and whether the statute of repose in that statute is tolled by fraudulent concealment or misrepresentation of a plaintiff's cause of death)

Public School Employees Retirement Board v. Whalen, 671 MAL 2020 (granting review to consider whether private parties to a settlement agreement may determine what constitutes "compensation" for public school employee retirement purposes and whether the Commonwealth Court failed to give due deference to PSERS' interpretation of that term)

Povacz v. Pennsylvania Pub. Util Commn., 668 MAL 2020 (granting review to consider several issues related to "smart" utility meters under the Pennsylvania Public Utility Code)

Commonwealth v. McCutchen, 451 EAL 2020 (granting review to consider whether the trial court in a post-conviction case had statutory jurisdiction to grant relief)

Arlet v. Workers' Compensation Bd. of Appeal, 262 WAL 2020 (granting review to consider an issue of subrogation involving a Jones Act insurance policy)

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Corrie Woods Corrie Woods

April 2021 Docket Review

This month, the Court issued 15 precedential opinions and 7 orders granting allocatur.

First, I would be remiss if I didn't mention that once-and-former Chief Justice Saylor has handed the administrative reins over to his successor, now-Chief Justice Baer, in advance of his mandatory retirement at the end of this year.  Chief Justice Saylor took charge of the Court at a time when it was in some degree of institutional and reputational crisis, and successfully helped steer it through those, and the current public-health, crisis.  That said, former Chief Justice Saylor was always better known as an intellectual heavyweight author, and appears to have freed himself to do that again, issuing no less than 6 fairly nuanced secondary opinions this month.  One suspects that he will have much to say for the rest of the year.

On the opinion side, the Court in Perez apparently felt that guidance was needed as to the appropriate standard of review governing preliminary hearings, perhaps in light of its recent decision imposing a greater level of scrutiny at such proceedings by requiring that the Commonwealth not proceed solely via hearsay therein.  Typically, the Court is not inclined to grant review merely to supervise the lower courts' application of an uncontested standard of review to the particular facts of a case, but it both granted allocatur expressly for that purpose and performed relatively mundane review.  Whether Perez is an outlier or an indicator that the Court is now open to double-checking the intermediate appellate courts remains to be seen.  Additionally, the court in Pittsburgh Logistics Systems provided another win for workers, coming off of its recent decision to classify gig workers as employees for purposes of numerous state employee-benefits statutes.

On the allocatur side, certainly the most widely-applicable case will be Barr, which will address how police are to treat indicia of marijuana as a basis for probable cause after the General Assembly's adoption of the Medical Marijuana Act.  Frankly, the current state of Pennsylvania law contains context after context in which those availing themselves of medical marijuana do so with the sword of Damocles above them, and the General Assembly has been anything but consistent.  For example, virtually every patient who uses medical marijuana will carry metabolites in his or her body for weeks, but the General Assembly has recently beefed up controlled-substance DUI statutes and provided that virtually every patient who drives faces potential arrest and conviction for DUI at all times.  Although Barr may help protect legal marijuana users from unwarranted government intrusions on the basis of legal marijuana use, only the Legislature can resolve the double-bind it routinely places them in.

Precedential Opinion

  • Commonwealth v. Lopez, 787 CAP (Opinion by Donohue, J.) (affirming dismissal of serial post-conviction petition as untimely)

  • Commonwealth v. Hairston, 786 CAP (Opinion by Donohue, J.) (affirming the denial of post-conviction relief in a capital case involving, inter alia, facial and as-applied challenges to the death penalty as cruel and unusual punishment)

  • Philadelphia Gas Works v. Pennsylvania Pub. Util. Commn., 14 EAP 2020 (Opinion by Donohue, J.) (holding that once a municipal lien is recorded, a public utility may no longer apply its regulatory tariff rate, but must apply the post-judgment rate, of interest)

  • Pittsburgh Logistics Sys., Inc. v. Beemac Trucking, LLC, 31 WAP 2019 (Opinion by Mundy, J.) (holding that the Restatement test for no-hire/no-poach provisions ancillary to a services contract between two business entities governs in Pennsylvania and finding the subject no-hire/no-poach provision to be unenforceable)

  • Commonwealth v. Finnecy, 2 WAP 2020 (Opinion by Mundy, J.) (holding that whether a defendant is eligible for a Recidivism Risk Reduction Act sentence is a nonwaivable challenge to the legality of sentence and that a single arrest for a violent offense does not constitute a record or pattern of violent behavior rendering a defendant ineligible for such a sentence)

  • Commonwealth v. Wardlaw, 15 WAP 2020 (Opinion by Wecht, J.) (holding that a mistrial is not, and only a defendant-initiated request for a new trial leading to a grant of the same is, a grant of a new trial within the meaning of a rule of appellate procedure permitting defendants to appeal from such grants raising claims that would lead to full discharge)

Allocatur Grants

  • Commonwealth v. Jones-Williams, 646 MAL 2020 (granting review to consider a Commonwealth challenge to Superior Court decision holding that Pennsylvania's implied consent statute is unconstitutional as it pertains to blood draws and that no exigent circumstances existed to warrant the subject blood draw) 

  • O'Donnell v. Allegheny Cnt. North Tax Collection Committee, 11 WAL 2021 (granting review to consider several issues relating to the local taxability of a qui tam action settlement)

  • Commonwealth v. Pownall, 363 EAL 2020 (granting review to consider whether the Superior Court erred in quashing the Commonwealth's appeal challenging the constitutionality of a statute providing police authority to use deadly force to prevent a fleeing felon from creating a risk of death or serious bodily injury)

  • Commonwealth v. Santana, 654 MAL 2020 (granting review to consider whether sexual offender's conviction for failure to register as a sexual offender under an unconstitutional iteration of Pennsylvania's sexual offender registration requirements can be sustained because he was required to register under New York law and moved to Pennsylvania after the iteration's enactment)

  • Eastern Univ. Academy Charter Sch. v. Sch. Dist. of Phila, 373 EAL 2020 (granting review to consider whether a school district's nonrenewal of a charter term must be effected during the term of the existing charter term)

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