July 2023 Docket Review

This month, the court issued 4 precedential opinions and 3 grants of allocatur, but all 7 are big deals.  On the opinion side, let's start with M.E.L., which, depending on your view, either recognizes or creates a statutory requirement that parents seeking to have their partners adopt their children either marry them or demonstrate that they are unable to do so.  The majority opinion, authored by Chief Justice Todd, convincingly explains its view that the General Assembly in the Adoption Act has expressed a preference for "intact family units," and that the Court's precedent has only been willing to deviate from that preferences in compelling circumstances, such as in an earlier case permitting parents to have same-sex partners, who they were not then permitted to marry, to adopt their children.  The majority recognizes that its decision appears to reinforce something of an anachronistic view of the family, but views the Legislature as endorsing it.  Justice Wecht, in his concurring and dissenting opinion, takes a different view that whatever the General Assembly's preference, they have provided a safety valve by allowing courts to permit adoptions for good cause shown.  On balance, the majority's view appears more consistent with what the General Assembly would have intended when it enacted the Act decades ago, but Justice Wecht makes a compelling textual argument. 

Notably, the court stopped short of saying that a parent must marry a partner to allow for an adoption, remanding for further litigation about the parent's ability to do so, which is consistent with Chief Justice Todd's long history of extoling the virtues of judicial minimalism and decisional restraint.  Thus, on remand, the parent at issue (or other parents in the future) will have the opportunity to make arguments about whether and why she is "unable" to marry her partner.  The word bears a wide variety of connotations.  At one extreme, it might merely refer to a preference: I'm sorry, but I'm unable to join the meeting.  This view is perhaps a bit permissive, but could be attractive particularly in light of longstanding federal and state constitutional jurisprudence recognizing that individuals have the right to order their families in the way they see fit.  On the other extreme, it might refer to what it referred to in the same-sex partner case: legal impossibility.  It will be interesting to see how future cases arrive at a conclusion.

Additionally, the court's decisions in McLaughlin, Mimi Investors, and The Bert Company continue one of the Court's more longstanding trends in recent history: again, depending on your view, either recognizing or creating pathways to civil liability, contribution against co-employers, arguable strict liability for false statements in connection with securities, and a narrow view of federal constitutional limits on punitive damages, respectively.  Although the Court's holdings with respect to the first two are final, its holding in The Bert Company may be ripe for an appeal to the United States Supreme Court.  Indeed, that Court's jurisprudence on the issue is of relatively recent vintage, confusing, somewhat contradictory, and, as applied by lower courts, something of a scrum.  Given that the High Court has not addressed the issue in some time, has seen significant changes in personnel, and has seen significant upheavals in its overall jurisprudence of substantive due process, it might well be inclined to take up review.

On the allocatur side, I'm most interested in Ungarean and MacMiles, in which the Court granted review to address questions of insurance coverage for losses derived from the ongoing coronavirus pandemic and governmental responses thereto.  Perhaps the most interesting is whether policies covering "physical loss or damage" will cover losses arising from office closures, particularly in light of the longstanding rule that ambiguities in insurance policies must be construed in favor of the insured.  Although most courts have decided the answer is no, a few in Pennsylvania have come to the opposite conclusion. In the past, the Court has had some circumspection about collapsing the distinction between the concepts of physical and non-physical (despite the fact that, in the scientific sense, everything is physical), and has recognized the distinction as something of a normative, policy choice rather than a literal description, so it will be interesting how it addresses arguments that losses derived from the "physical" intrusion of the virus.

Precedential Opinions

McLaughlin v. Nahata, 7 WAP 2022 (Majority Opinion by Brobson, J.) (holding that a party vicariously liable in tort may seek contribution from another)

• See also Concurring Opinion by Wecht, J. 

Mimi Investors, LLC v. Tufano, 57 MAP 2022 (Majority Opinion by Donohue, J.) (holding that there is no scienter element in state law providing a cause of action for failure false statements in connection with securities)

• See also Concurring Opinion by Mundy, J.

In Re Adopt. of: M.E.L., a Minor, 109 MAP 2022 (Majority Opinion by Todd, C.J.) (holding that a parent must either marry, or establish inability to marry, a proposed adopting co-parent)

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

The Bert Company v. Turk, 13 & 14 WAP 2022 (Majority Opinion by Donohue, J.) (holding that trial courts in assessing constitutional challenges to punitive damages as violative of substantive due process may compare compensatory damages to punitive damages on a per-defendant basis and may consider the potential harm of defendants' actions)

• See also Concurring Opinion by Dougherty, J. 

• See also Concurring Opinion by Wecht, J. 

• See also Concurring Opinion by Mundy, J. 

• See also Concurring Opinion by Brobson, J.

Allocatur Grants

Commonwealth v. Saunders, 7 EAL 2023 (granting review to consider whether the Pennsylvania constitutional protection against searches and seizures requires a fact-specific assessment of each automobile search's necessary exigent circumstances)

Ungarean v. CNA, 313 & 314 WAL 2022 (granting review to consider insurance coverage dispute for losses arising from the coronavirus pandemic)

MacMiles, LLC v. Erie Insurance Exchange, 307 WAL 2022 (granting review to consider insurance coverage dispute for losses arising from the coronavirus pandemic)

June 2023 Docket Review

This month, the Court issued 3 precedential opinions and 2 grants of allocatur, but sometimes quality trumps quantity.   On the opinion side, I'm most impressed by Rivera, which is an excellent walk through a complicated issue.  Rivera tilts at separating the complexities not only between federal and state jurisprudence concerning the comments on an accused's exercise of his privilege against self incrimination, but also between the different harmless error analyses applicable to pre-arrest and post-arrest silence.  Justice Brobson's majority opinion, together with Justice Wecht's concurrence, read in tandem as something of a primer on the issue, Justice Brobson explaining in depth how we have come to this multiplicity of standards, and Justice Wecht offering guidance as to how practitioners should go forward.  Although one can certainly read that there may be some differences between the Justices' normative views, this is simply excellent judicial writing.

On the allocatur side, I'm most interested in B.C., which will consider the applicability of the presumption of paternity in a case involving putative parents separated at the time of conception and at other times, has the potential to impact a lot of cases.  The adoption of, and most glosses on, the presumption of paternity came some time ago, when social mores surrounding marriage -- which the presumption purportedly serves to protect -- and family were decidedly more aspirational than realistic.  It will be interesting to see how the court decides to deal with (or not deal with) the intervening social change.

Precedential Opinions

Commonwealth v. Dunn, 10 WAP 2022 (per curiam) (holding that the procedural rules concerning mandatory discovery apply to statutorily permitted sexual abuse experts but affirming the denial of a new trial by want of a majority)

• See also Opinion in Support of Affirmance by Mundy, J.

• See also Opinion in Support of Affirmance by Todd, C.J.

• See also Opinion in Support of Reversal by Donohue, J.

• See also Opinion in Support of Reversal by Wecht, J.

Commonwealth v. Rivera, 22 MAP 2022 (Majority Opinion by Brobson, J.) (reiterating the differences between comments on pre-arrest and post-arrest silence and concomitant analyses for determining whether they constitute harmless error)

• See also Concurring Opinion by Wecht, J.

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

In the Int. of K.T.; Apl of CYF, 37 & 38 WAP 2022 (Majority Opinion by Dougherty, J.) (clarifying bonds analysis in termination-of-parental-rights cases)

• See also Dissenting Opinion by Wecht, J.

Note: The Court also issued a correction to its May opinion in Commonwealth v. Koger, 15 WAP 2022, clarifying a misstatement of the law on an (arguably) collateral point.  You can find it here.

Allocatur Grants

Wolfe v. Reading Blue Mountain, 586 & 587 MAL 2022 (granting review to consider the Commonwealth's application of certain eminent-domain caselaw in light of a subsequently adopted statute)

B.C. v. C.P. & D.B., 61 WAL 2023 (granting review to consider the applicability of the presumption of paternity in a case involving periodic separation)

May 2023 Docket Review

This month, the Court issued 7 precedential opinions and 2 grants of allocatur.  Although it didn't provide many opinions, it offered two with material of great interest to appellate advocates. 

First, in Armolt, the court had something of a scrum over whether and how a party can waive a claim challenging the legality of sentence -- in this case, a claim of a violation of constitutional ex post facto principles, by failing to adequately develop it.  Justice Dougherty, writing for a plurality, analogized to other issues that courts may raise sua sponte, and leaned heavily on the court's discretion in choosing to consider, or not consider, them.  Chief Justice Todd offered a more measured approach that declined to adopt broad principles, but concluded that the defendant's claims herein were waived.  And Justice Wecht, in dissent, took the plurality to task for the logical incongruity in its reasoning that a claim that can be raised at any time, or entertained without any development whatsoever, can be waived for a lack of clear advocacy.  A couple of points here. 

As an initial matter, one would imagine that the Court would have addressed this issue before, but, prior to the last decade or so, its decisions limited the kinds of claims that implicated the legality of sentencing to, more or less, patent conflicts with clear statutory requirements.  In those days, it would be difficult to fail to develop a claim challenging the legality of the sentence, because it would be largely self-evident even without any advocacy.  Yet, beginning in Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011), the court began expanding the variety of claims implicating the legality of sentence, first to challenges to the application of mandatory minimum statutes, and later to constitutional challenges to the application of those statutes, and then constitutional challenges more broadly, until, now, some claims implicating the legality of sentence are quite complex and, thus, quite capable of underdevelopment.  At the time of Foster, then-Justice, later-Chief Justice Saylor advocated for reconceptualizing claims implicating the legality of sentencing as claims that a sentence was illegal per se and advocated that considering whether other kinds of claims were illegal per se should be an evaluative endeavor designed to balance the need for finality, the need to administer justice, and fairness to defendants.  Had the Court agreed, it is likely it would have avoided expanding the category as it has and, thus, the current disjunct between the notion that a party is free to raise such claims for the first time at any time and the notion that a party can waive the claim by lack of development.  Its decisions to do so, whether consciously or not, have highly prioritized that latter factor of fairness to defendants, but Armolt appears to be evidence that the Court reached a high water mark.

Additionally, what to make of Chief Justice Todd's more restrained concurrence and the case's precedential effect?  The concurrence favors the plurality's holding, but only slightly, and appears to leave some of the more abstract disagreements between the plurality and Justice Wecht's concurrence for another day.  Indeed, in the past, the Chief's separate writings have propounded and exemplified the benefits of judicial minimalism, particularly in heated disputes over generally applicable appellate rules of decision, where binding precedent can often do more harm than good for the Court's institutional power and its precedent.  I would not cite Armolt as precedential, at least not without back authority, or good reasoning, but it would seem like the court is experiencing something of a judicially conservative (or less liberal) recession.

Second, in S. Bethlehem Assoc., the court identified a difference between judicial standing to maintain an appellate challenge of an administrative decision and administrative standing to participate in an administrative proceeding, effectively holding that a competitor of a business applying for a zoning variance lacked the former, but not the latter.  Its decision reflects something of another recession from the Court's recent expansions of standing in the Firearm Owners Against Crime and other similar cases, and its reasoning that statutory standing is broader, for example, to avoid standing disputes before administrative proceedings, is less than compelling, but arguably fair.  Again, it would appear that the Court is retreating from what some have claimed its ideological trajectory to be.

Precedential Opinions

Alpini v. Workers' Compensation Appeal Bd., 2 MAP 2022 (Opinion by Brobson, J.) (holding that a provision of the Motor Vehicle Responsibility Law precluding subrogation of certain claims "arising out of the maintenance or use of a motor vehicle" applied to a claimant's claims under the Dram Shop Act)

• See also Concurring Opinion by Dougherty, J.

• See also Dissenting Opinion by Wecht, J.

S. Bethlehem Assoc. v. Zoning Hearing Bd., 41 MAP 2022 (Opinion by Mundy, J.) (distinguishing between standing to initiate judicial proceedings and broader standing to participate in an administrative proceeding under the Municipalities Planning Code and finding a market competitor lacked judicial standing, regardless of whether he had administrative standing, to challenge a co-competitor's requests for a zoning variance)

• See also Dissenting Opinion by Donohue, J.

Commonwealth v. Armolt, 86 MAP 2021 (Opinion by Dougherty, J.) (holding that criminal court divisions have jurisdiction to try and sentence adults for crimes committed as juveniles)

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

• See also Concurring Opinion by Wecht, J.

Commonwealth v. Koger, 15 WAP 2022 (Opinion by Dougherty, J.) (holding an earlier decision interpreting a statute governing probation to require a specific finding of a violation of a condition set forth in a sentencing order does not apply to the discrete statutory framework for parole and that courts may delegate identification of conditions of parole) 

• See also Concurring Opinion by Donohue, J.

Commonwealth v. Rosario, 3, 4, 5 WAP 2022 (Opinion by Dougherty, J.) (holding that trial courts are prohibited from anticipatorily revoking a sentence of probation that has not yet begun)

• See also Dissenting Opinion by Mundy, J.

Brown v. Oil City, 6 WAP 2022 (Opinion by Todd, C.J.) (holding that a contractor may be liable to a third party for creating a dangerous condition on his principal's land even after he returns possession of the land to another who is aware of the condition)

• See also Dissenting Opinion by Mundy, J.

Javitz v. Luzerne Co., 85 MAP 2021 (Opinion by Donohue, J.) (reviewing the Commonwealth Court's application of the law governing claims under the Whistleblower Law)

Allocatur Grants

Bold v. Dept. of Transp., 606 MAL 2022 (granting review to consider whether an impaired operator's movement is required to establish certain DUI-related offenses)

Co. of Northumberland v. Twp. of Coal, 17 MAL 2023 (granting review to consider several issues related to tax refund procedures)

April 2023 Docket Review

This month, the Court issued 7 precedential opinions and 3 grants of allocatur.  On the opinion side, the headline-grabber is the extensive (but page-turning) County of Fulton opinion, which outlines the County's, and its counsel's, course of defiance and vexatious litigation in connection with an earlier Supreme Court order directing it to cease providing third-parties access to its voting equipment pending litigation of its authority to do so.  In the opinion, Justice Wecht capably and thoroughly delineates the County's, and its counsel's, overwhelming history of litigation malfeasance, and imposes sanctions for the same.  The opinion also notes that the Court will refer counsel to disciplinary authorities, and concludes with a firm reiteration that defiance of judicial orders is an affront to the rule of law and harmful to adverse parties and the public interest.  Although Justice Wecht's opinion for the majority takes a more scholarly and regular tone, Justice Dougherty, in concurrence, issued a "no-holds-barred" directive of his own, admonishing would-be contemnors who believe they can avoid sanctions, "let this case serve to prove just how wrong you are."  As an academic matter, in this author's view, the opinions are likely to find their way into civil procedure and professional responsibility textbooks for decades to come (much to the chagrin of counsel). 

Also interesting is Marcellus Shale Coalition, which provides a window into several Justices' thinking in the area of administrative-agency deference.  Many litigants take for granted that the Court in interpreting agency-related statutes will essentially follow federal deference principles, but, as the Justices explain, it does not, and several Justices are inclined to pull back the degree to which it defers to agencies at all.  Interestingly, the call to do so mirrors a similar call by several United States Supreme Court Justices who are decidedly more politically conservative.  In either event, pulling away from the doctrine is likely to take authority out of the hands of agency officials and into the hands of judges.  Regardless of one's political stripe, although deference can serve salutary purposes where the interpretations involved are largely apolitical and technical in nature, it appears less salutary where agency officials are interpreting procedures (concerning which lawyers and judges have at least an equal pretension to advanced knowledge) or making complex policy judgments (which would appear to require a more proximate democratic mandate, whether it be via the General Assembly's legislative intent or at least elected jurists).  Given the vagaries of existing law on the subject, and the multifarious views of the Justices, it will be interesting to see if the Court has occasion to directly confront these concepts in a future case.

On the allocatur side, I'm most interested in Gustafson, in which the Court would appear to be open to considering opening the door for lawsuits by victims of gun violence against manufacturers and retailers, including on a "states rights" theory that certain federal legislation precluding those suits violates' states' rights to regulate state tort law.  Doing so, particularly on that basis, would represent a sea change in the law of firearms, among other dangerous products such as tobacco, throughout the country, and would likely lead to something of a flashpoint review by the United States Supreme Court.  Stay tuned, and expect significant interest.

Precedential Opinions

Shrom v. PA Underground Storage Tank, 21 MAP 2022 (Opinion by Brobson, J.) (holding property owners were eligible for indemnification for losses caused by underground storage tanks under regulatory legislation notwithstanding failure to comply with agency-imposed registration and fee requirements)

• See also Concurring Opinion by Mundy, J.

Commonwealth v. Rollins, 70 MAP 2022 (Opinion by Mundy, J.) (rejecting a challenge to a DUI-sentencing provision as void for vagueness based on the Crimes Code's default sentencing provisions)

• See also Concurring Opinion by Brobson, J.

Franks v. State Farm Mutual, 42 MAP 2022 (Opinion by Mundy, J.) (holding that the removal of a vehicle from an auto insurance policy as such is not a "purchase" requiring a renewed waiver of stacking)

County of Fulton v. Secretary of Comm., 3 MAP 2022 (Opinion by Wecht, J.) (imposing sanctions on Fulton County and its counsel for abuse of process in an elections matter)

• See also Concurring Opinion by Dougherty, J.

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

Vellon v. Dept. of Transportation, 39 MAP 2022 (Opinion by Donohue, J.) (holding that two DUI-offenses committed before conviction and sentencing do not constitute multiple prior offenses for purposes of a license-suspension statute)

• See also Concurring Opinion by Mundy, J.

Marcellus Shale Coalition v. DEP, 69 MAP 2021 (Opinion by Donohue, J.) (rejecting challenge to certain oil-and-gas permitting regulations)

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

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

• See also Dissenting Opinion by Mundy, J. 

Franczyk v. The Home Depot, 11 WAP 2022 (Opinion by Wecht, J.) (holding the Workers' Compensation Act preempts actions against employers predicated on their negligent failure to obtain indemnification information from third parties who engaged in tortious conduct)

• See also Concurring Opinion by Todd, J.

Allocatur Grants

Commonwealth v. Berry, 291 - 292 EAL 2022 (granting review to consider whether the Superior Court erroneously viewed a challenge to a sentencing court's consideration of mere arrest as an aggravating favor as a challenge to the discretionary aspects of sentencing and erroneously affirmed said consideration)

Gustafson v. Springfield, 240 WAL 2022 (granting review to consider a products-liability claim against gun manufacturers and sellers in light of federal legislation and to consider constitutional challenges to that legislation)

Commonwealth v. Chambers, 286 EAL 2022 (granting review to consider constitutional and legal challenges to a judgment of sentence inconsistent with the factfinder's indications on the record)

March 2023 Docket Review

This month, the Court issued 3 precedential opinions and 7 grants of allocatur.  On the opinion side, Perrin provides some guidance as to whether parties in a criminal case can enter into stipulations in a post-conviction context, holding that the trial court is free to reject them because witness credibility is a matter reserved for the court.  Notably, the court does not address whether, but Justice Dougherty opines further that a court is not free to accept them, as stipulations are reserved for actual, tangible facts, which he views as exclusive of witness credibility.  Practitioners attempting to arrive at stipulations in this context, in this regard, would do well to form their stipulations in terms of what happened, as a first-order matter, rather than what a witness would say, which injects significant uncertainty, and rather than whether the witness would be believed, which may not be up to them to agree upon.  Green is also interesting, less for its holding that a statute regarding juvenile decertifications means what it says, but more for the cogent discussion of the absurdity canon.  In an opinion for the majority, Justice Brobson essentially retracks, albeit with his own perspective, a concurrence by Justice Wecht in a 2021 decision emphasizing that statutory language must be followed unless it is patently ridiculous.  The fact that this principle has proceeded from a musing in a concurrence by one of the Court's more liberal members to a major point of analysis in a unanimous opinion by one of the Court's more conservative members suggests that it is here to stay, and that practitioners should be wary of what they call absurd.

On the allocatur side, I'm most interested in Mertis, which could potentially create significant upheaval in the medical malpractice field, and Richards, in which the Court appears to be willing to take another run at its 3-3 deadlock in Verbeck, decided just a month ago, perhaps cognizant that, buy the time the case is briefed and argued, they may have a justice to break the tie.

Precedential Opinions

Yount v. Pa. Lawyers Fund, 2842 DD3 (Opinion by Wecht, J.) (holding that attorney-subpoenas under Pa.R.D.E. 521(c) are only subpoenas to summon witnesses, not to obtain records)

Commonwealth v. Perrin, 2 EAP 2022 (Opinion by Mundy, J.) (holding that trial courts have authority to reject proposed stipulations as to witness credibility in the context of post-sentence motions)

• See also Concurring Opinion by Dougherty, J.

Commonwealth v. Green, 16 WAP 2022 (Opinion by Brobson, J.) (holding that petitions for decertification of homicide cases to juvenile court not ruled on within 20 days after hearing are denied by operation of law)

Allocatur Grants

Mertis v. Dong-Joon, 546 MAL 2022 (granting review to consider medical-malpractice defense counsel's permission pursuant to Pa.R.Civ.P. 4003.6 to speak with a plaintiff's treating physicians under certain circumstances)

Caldwell v. Jaurigue, 521 MAL 2022 (granting review to consider whether a prior decision expands child support obligations to all third parties who seek and obtain custody rights)

In the Interest of: N.E.M., 288 - 289 EAL 2022 (granting review to consider whether the Superior Court was obligated to issue an opinion in a case initiated by petition for specialized review)

Commonwealth v. Richards, 518 MAL 2022 (granting review to consider (again) whether a defendant's prior acceptance of alternative rehabilitative disposition of a charge of driving under the influence constitutes a prior conviction for purposes of subsequent prosecutions for driving under the influence)

Commonwealth v. Dobson, 383 MAL 2022 (granting review to consider whether the Superior Court erred in its application of "Terry frisk" precedent to an automobile passenger)

In Re: Trust of Wells, 254 WAL 2022 (granting review to consider the Superior Court's apprehension and application of the Pennsylvania Charitable Trust Termination Statute)

Commonwealth v. Smith, 151 EAL 2022 (granting review to consider whether to abrogate a Superior Court decision holding that petitioners for post-conviction relief may not file new petitions while on direct appeal)

February 2023 Docket Review

This month, the Court issued 8 precedential opinions and 5 grants of allocatur.

On the opinion side, I'm most interested in the Court's decision in Ball, which holds that the Election Code's dating requirements for absentee and mail-in ballots are mandatory, rather than directory, such that undated ballots should not be counted.  Perhaps the most interesting aspect is that the Court was equally divided on whether that interpretation of the Code occasions a violation of federal civil rights law.  There are good arguments that it does, but they will have to be forwarded to a future iteration of the Court after November's election of a new Justice, or, more likely, to Judge Susan Paradise Baxter of the Western District of Pennsylvania, where the NAACP and League of Women Voters have brought an action arguing the point.  In short, this one's not really over yet.

Another item of note is that the Court was unable to reach a binding decision at all in two additional matters that are sure to recur.  In the first, Commonwealth v. Verbeck, the Court was equally divided as to whether the Legislature's provision that second-time DUI defendants who previously accepted alternative rehabilitative disposition of their first DUI's be sentenced as recidivists was constitutional, in part because such a disposition is not a criminal conviction as such.  The Court's equal division led to an affirmance of the Superior Court's panel decision in Verbeck's case, which found the provision unconstitutional.  However, the Court's inability to establish precedent on the point leaves the Superior Court's en banc decisions in two other cases in place, and those cases held precisely the opposite.  In the other, GM Berkshire Hills, LLC v. Berks County Bd. of Assessment, the court was to address whether certain taxing-body discrimination in selecting which properties to reassess violates the taxation Uniformity Clause of the Pennsylvania Constitution.  Again, the Court's equal division means it establishes no precedent, and leaves in place lower court determinations that no constitutional violation occurred, Justice Christine Donohue's excellent Opinion in Support of Reversal notwithstanding.

Suffice it to say that DUIs, not to mention local taxes, are not likely to wane over the next year or so.  The present gridlock notwithstanding, the savvy advocate will look to these decisions for guidance as to how persuade the Justices (and their new colleague) come January 2024.

On the allocatur side, things are pretty dry this month, but the case with the most impact is likely to be Dressler, which puts the Court in the position of deciding the meaning of a lease provision concerning the deduction of post-production costs from royalties in the oil and gas industry, which operates almost exclusively on boilerplate agreements often derived from other jurisdictions' law.  In prior cases, the Court has not shied from taking a different view of lease interpretation than say, Texas, and, particularly given the Court's almost exclusively pro-consumer record over the last few years, it will be interesting to see which of the competing values of industry-uniformity and landowner protection emerge prioritized.

Precedential Opinions

Ball v. Chapman, 102 MM 2022 (Opinion by Wecht, J.) (holding that the date requirements for absentee and mail in ballots are mandatory, rather than directory)

• See also Concurring Opinion by Donohue, J.

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

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

Erie Insurance Exchange v. Mione, 89 MAP 2021 (Opinion by Wecht, J.) (holding that an auto-insurance household exclusion was not per se unenforceable as a de facto illegal waiver of stacking)

Commonwealth v. Wallace, 93 MAP 2021 (Opinion by Todd, C.J.) (holding that global-positioning-system data was not inadmissible on the ground that it was hearsay because it was not a declarant's statement)

• See also Concurring Opinion by Wecht, J. 

Synthes USA HQ v. Commonwealth, 11 MAP 2021 (Opinion by Donohue, J.) (holding that the Attorney General had authority to assert a position contrary to another executive agency, and interpreting and applying corporate income tax law in the context of a multi-state busines enterprise)

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

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

Clean Air Council v. DEP, 73 & 74 MAP 2021 (Opinion by Wecht, J. )  (holding that the Environment Hearing Board's rule limiting awards of attorneys fees against private parties to litigation in bad faith was contrary to statute and predicated on an overbroad reading of precedent)

• See also Dissenting Opinion by Mundy, J.

Myers v. Commonwealth, 67 & 68 MAP 2021 (Opinion by Mundy, J.) (interpreting and applying sales tax law in the context of coupon purchases)

United States v. Harris, 5 EAP 2022 (Opinion by Todd, C.J.) (holding that the offense of aggravated assault has no requirement of physical force)

• See also Concurring Opinion by Mundy, J.

Commonwealth v. Johnson, 792 CAP (Opinion by Dougherty, J.) (rejecting some 22 claims in a capital post-conviction appeal)

• See also Concurring Opinion by Donohue, J.

Allocatur Grants

KEM Resources v. Ryvamat, 349 MAL 2022 (granting review to consider the limitations period for claims seeking an accounting)

A.M.D v. A.L.R, 588 MAL 2022 (granting review to consider application of the collateral order doctrine in a family law case)

Sicilia v. API Roofers, 287 MAL 2022 (granting review to consider the Commonwealth Court's observance of the standard of review in a workers' compensation case)

Dressler v. PennEnergy Resources, 208 WAL 2022 (granting review to consider interpretive and evidentiary questions regarding the deduction of post-production costs from oil and gas royalties)

Ursinus College v. PWAB, 380 MAL 2022 (granting review to consider whether the Prevailing Wage Act applies to a construction project funded by a public authority's issuance of municipal bonds)

January 2023 Docket Review

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

On the opinion side, I'm most interested in Avery, which interprets the "sore loser" provisions of the Election Code to limit the circumstances in which candidates for office can withdraw from a party primary and run as third-party candidates in the general election.  Avery essentially holds that candidates who discover defects in their petitions and voluntarily administratively withdraw them may run as third-party candidates, but candidates who don't concede and litigate, but then withdraw, cannot.  Although the court's legal analysis of precedent is well-taken, some collateral points are worth note.  Preliminarily, as Justice Wecht argues in concurrence, there is room to argue that the existing exception for candidates who withdraw administratively is not statutorily supported. 

But perhaps more importantly, declining to extend the exception to litigation-based withdrawal leads to some practically dubious results.  Suppose you are a candidate, and you believe you can win either as a major-party candidate or, with much more work and expense, as a third-party or independent candidate.  You file petitions, and there is ambiguity as to whether you should be placed on the ballot.  If Avery had come out differently, there would be no cost to litigating first and, if you lose, bailing out and mounting a third party or independent candidacy.  Under Avery, you must make a bet on your likelihood of success in court, and either bail out beforehand, or stick it out and, if you lose, sit November out.  This is not so easy to do, as compliance with the Code is often in the eye of the fact finder.  The net effect of Avery, then, is to incentivize pre-litigation evaluation of petition signatures and disincentivize good-faith disputes vis-a-vis petitions.  Although it's fair enough to call someone who runs in a primary and loses a "sore loser," it's hard to apply the term to someone who never makes it to the primary in the first place.  Given the court's analysis is pretty strong, the legislature would be well advised to reconsider who the concept really should bar.

On the allocatur side, I'm most interested in Dwyer, which concerns the scope of a trial court's discretion to deny treble damages pursuant to the Unfair Trade Practices and Consumer Protection Law.  Historically, a trial court's discretion to grant or deny treble damages has been quite broad, but the Court's recent decisions in the context of the UTPCPL and elsewhere, most notably Gregg v. Ameriprise in 2020, adopting strict liability for violations of the UTPCPL, have shown a marked trend of expanding the availability of civil damages in virtually every context.  Additionally, counsel in Dwyer, Ken Behrend, Esq., was also counsel in Gregg, and has had something of a lengthy career in exploring and expanding the outer reaches of the UTPCPL.  It will be interesting to see whether the Court's experience and personnel changes from 2020 to present lead to a continuation or recession of the trend.

Precedential Opinions

In Re: Nomination of Avery, 91 & 92 MAP 2022 (Opinion by Donohue, J.) (holding that an exception to the Election Code's "sore loser" provisions for candidates who have voluntarily administratively withdrawn does not extend beyond those circumstances to litigation-based withdrawal)

• See also Concurring Opinion by Wecht, J.

• See also Concurring Opinion by Mundy, J. 

Marion v. Bryn Mawr Trust Co., 72 MAP 2021 (Opinion by Dougherty, J.) (adopting knowingly aiding and abetting fraud as a tort under Pennsylvania law)

In Re: Private Complaint Filed by Luay Ajaj, 55 MAP 2021 (Opinion by Brobson, J.) (holding that a district attorney's disapproval of a private criminal complaint is subject to reversal only for bad faith, fraud, or unconstitutionality).

• See also Concurring Opinion by Dougherty, J.

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

In Re: Trust Under Deed of Garrison, 61-63 MAP 2022 (Opinion by Mundy, J.) (holding a prior case precluding trust beneficiaries from replacing a trustee by agreement did not apply to situations in which the settlor and beneficiaries all seek to replace the trustee by agreement)

Allocatur Grants

MBC Development v. Miller, 387 MAL 2022 (granting review to consider the validity of arbitration agreements between limited partners in light of statutory requirements that certain acts are subject only to "court review")

Ferraro v. Patterson-Erie, 170 WAL 2022 (granting review to consider whether a plaintiff's good-faith attempt to serve the defendant within the relevant statute of limitations excused her from doing so)

Dwyer v. Ameriprise Financial, 209 WAL 2022 (granting review to consider a trial court's refusal to grant treble damages under the Unfair Trade Practices and Consumer Protection Law on the ground that the plaintiff had already received punitive damages)

Commonwealth v. Chisebwe, 322, 323, 324, & 325 MAL 2022 (granting review to consider whether a the evidence was sufficient to convict a motorist of failing to exhibit his driver's license and registration where he initially refused to produce them, but subsequently relented, within a statutory period to present them ostensibly intended for motorists who did not refuse, but, rather, did not possess, the documents)

December 2022 Docket Review

This month, the Court issued 3 precedential opinions and 2 grants of allocatur.

On the opinion side, nothing so entertaining as a good Christmas movie, but a few interesting points worth making.  In Gibraltar Rock, the Court reemphasized that lower appellate courts should not raise issues sua sponte, a practice that is as widespread as it is erroneous, particularly in situations where courts would prefer to avoid decisions on the merits.  But there's something to the point: a litigant should have to face his adversary, not his adversary and the arbiters.  And in Reibenstein, the court, in three opinions, highlights and evaluates the merits of three kinds of "cause of death."  Although Reibenstein is a civil case and deals with statutory interpretation, there is a significant amount of language on narrow and broad interpretations of causation by the medical and legal communities that practitioners would be wise to keep in their stockings in the event of any issue involving death, whether it be civil or criminal.

On the allocatur side, Lehman is interesting in that it will consider whether a man who overdosed living in a halfway house in Downtown Pittsburgh as a condition of parole was an "inmate" in terms of an offense making it a crime for inmates to possess drugs.  In an opinion authored by Senior Judge Dan Pellegrini, known as something of an intellectual force in Pennsylvania appellate jurisprudence, a 2-1 majority of a panel of the Superior Court answered no.  But a dissent authored by Judge Mary Jane Bowes, equally regarded as a brilliant jurist, came to the opposite conclusion.  The opinions stand on the opposite sides of trying to draw a line between "in jail" and "out of jail" that has been difficult for courts in a variety of contexts over the years, ranging from awards of credit for time served to offenses like this one which are predicated on an individual's custodial status.  

Lehman poses an interesting question in its own right, but also highlights some things to look for in an allocatur grant.  The court below, via two esteemed judges, addressed the issue in great detail, and, frankly, both came to reasonable conclusions.  And the reasoning used to shed light on this issue may be easily exportable to those other areas of law and other, similar offenses applicable to inmates.  In short, Lehman provides the Court with excellent, fleshed out positions and can implicate innumerable cases going forward in several areas of the law.

Precedential Opinions

Gibraltar Rock, Inc. v. DEP, 78 MAP 2021 (Opinion by Donohue, J.) (reversing Commonwealth Court's sua sponte consideration and reversal on the basis of issues not raised by the parties in a quarry permit proceeding)

Central Dauphin Sch. Dist. v. Hawkins, 88 MAP 2021 (Concurring Opinion by Dougherty, J.) (addressing the intersection of federal student privacy laws and the Right to Know Law vis-a-vis school-bus surveillance video)

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

Reibenstein v. Barax, 32 MAP 2021 (Opinion by Wecht, J.) (narrowly interpreting the scope of the exception to the statute of limitations for wrongful death cases in the MCARE Act for cases in which there was concealment of the "cause of death" to refer to medical cause of death, rather than the broader legal cause of death)

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

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

Allocatur Grants

Commonwealth v. Lehman, 202 WAL 2022 (granting review to consider the proper interpretation of the term "inmate" in the offense of possession of contraband by an inmate)

Commonwealth v. Hardy, 185 WAL 2022 (granting review to consider several issues related to a petitioner's request for DNA testing of certain evidence pursuant to the Post Conviction Relief Act)

November 2022 Docket Review

This month, the Court issued 3 precedential opinions and 2 allocatur grants.

On the opinion side, the most wide reaching of the three opinions this month is Drummond, in which the Court appears to hold that trial courts in instructing juries on reasonable doubts should exercise extreme caution when, or even just forbear from, providing illustrations of what a reasonable doubt is.  In Drummond, the trial court in question illustrated the concept by referring to the level of certainty necessary to authorize surgery for a "precious one," or a loved one.  The court recognized that this illustration not only potentially confused the jury about the level of certainty it needed, but also appeared to be wrong on the law.  That said, the Court's pronouncement of the law in this regard might reasonably be distinguished in a subsequent case, or even argued to be dicta, as the Court reasoned that the overall claim Drummond presented -- that his counsel was ineffective in failing to object to the instruction -- lacked merit because the holding amounted to a change in the law, and counsel cannot be deemed ineffective for failing to anticipate a change in the law.  Nevertheless, the opinion does represent a reminder to trial courts to avoid getting too folksy when it comes to the standard required to take someone's life and liberty.

On the allocatur side, in M.E.L., the court will wade into the area of family law and discuss something of a disjunct between the Adoption Law, written some time ago, and modern family configurations.  In M.E.L., a mother sought and obtained termination of a father's parental rights in advance of her boyfriend's adoption of her child.  Generally, both parents' rights must be terminated before adoption can occur, except for situations involving subsequent adoption by a parent's spouse (i.e., a stepparent), or in the court's discretion for cause shown.  Generally, "cause shown" has excluded parents' paramours as a matter of public policy, albeit leaving the door open for "long-term" paramours to be putative adopters.  In M.E.L., the court may be signaling an intent to revisit that line of decisions.  Alternatively, it is notable that the mother raised a lot of her contentions before the Superior Court for the first time, so the case may end in a whimper that the Superior Court erred in raising and or addressing a waived claim.

Precedential Opinions

McGuire v. City of Pittsburgh, 26 WAP 2021 (Opinion by Wecht, J.) (holding that federal civil rights statute's element that the defendant be acting "under color of state law" is not coterminous with Political Subdivision Tort Claims Act's element that the defendant be acting within the "scope of his office or duties")

• See also Concurring Opinion by Donohue, J. 

Commonwealth v. Coleman, 19 WAP 2021 (Opinion by Brobson, J.) (holding that a sentencing enhancement for individuals "previously convicted at any time of murder" applied to individual convicted of three murders at once)

• See also Concurring Opinion by Donohue, J.

• See also Dissenting Opinion by Wecht, J. 

Commonwealth v. Drummond, 28 EAP 2021 (Opinion by Wecht, J.) (holding "illustrative" reasonable doubt instruction was likely to confuse the jury or result in the unconstitutional lowering of the standard of proof)

• See also Concurring Opinion by Donohue, J. 

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

Allocatur Grants

In Re Adopt. of: M.E.L., 440 MAL 2022 (granting review to consider whether the Superior Court erred in remanding for consideration of the "cause" exception for non-parent adoptions applies in the context of persons other than parent's spouses)

Commonwealth v. Womack, 229 MAL 2022 (granting review to consider whether time under the speedy trial provisions of Pa.R.Crim.P. 600 begins to run upon an initial complaint or subsequent complaint where the initial criminal case is subsumed within the subsequent criminal case)

October 2022 Docket Review

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

On the opinion side, the Court in Scott dealt with a creative, if ill-fated, effort to challenge Pennsylvania's statute providing that defendants convicted of second-degree murder (i.e., committing a felony during which someone is killed) are subject to life imprisonment without the possibility of parole.  The petitioners, noting that the "life imprisonment" portion of the statute is located in the Sentencing Code, and that the "without parole" portion of the statute emanates from the Parole Code, brought a global challenge to the latter in the Commonwealth Court.  One big advantage of this method would have been that the petitioners would not have been subject to the sometimes Rhadamanthine time restrictions of the Post Conviction Relief Act, or PCRA.  The Court, however, appears to have viewed the distinction as something of an attempt at sleight-of-hand, essentially holding that both components were part of the petitioners' "sentence," and, thus, redirecting them right back to the PCRA.  Its analysis is fair, if perhaps not as strong as Justice Wecht's in dissent.

On the allocatur side, the Court granted review in Walters to consider an issue near and dear to this author's heart: the use of "expert" testimony as a conduit for hearsay.  Pennsylvania's approach to the rules of evidence applicable to experts has a number of problems.  Perhaps chief among them is that Pennsylvania continues to abide by the long-federally-discarded "general acceptance" test whereby if an "expert" in a field uses a methodology that is generally accepted in the field, his testimony is admissible.  That's all well and good when it comes to medical doctors, but the principle that courts should not inquire into the validity of scientific disciplines falls apart a bit when applied to, say, forensic scientists, such as "bite mark" technicians, whose disciplines are not very scientific.  The reductio ad absurdum here is that alchemists, psychics, and spirit guides all use methods widely accepted in their fields.

In Walters, the problem is a bit more inside: it is commonplace in many cases, and particularly sexual abuse cases, that an "expert" of some kind, whether a medical doctor, or a forensic nurse, or so on, will testify to an opinion based on "history."  Whether or not it is common for those in the medical field to root their opinions solely on "history," there is something of an ill-fit when the history is what is actually at issue in trial.  Experts can certainly rely on field-appropriate foundations, but their opinions should not be substitutes for trials in their entirety.  It will be interesting to see how the Court balances the evidentiary and scientific problems here with the constitutional adjudicatory process.

Precedential Opinions

In re: American Network Ins. Co., 58 MAP 2021 et al. (Opinion by Mundy, J.) (affirming a Commonwealth Court decision rejecting an insurer-liquidation proposal, but addressing threshold jurisdictional issues attendant ad hoc procedures in the Commonwealth Court's original jurisdiction)

• See also Concurring Opinion by Wecht, J.

In the Interest of K.N.L., 1 EAP 2022 (Opinion by Dougherty, J.) (clarifying third-party standing principles in adoption cases)

• See also Concurring Opinion by Donohue, J.

Commonwealth v. Price, 18 WAP 2021 (Opinion by Donohue, J.) (holding that the issue of inevitable discovery is not subsidiary to the question of probable cause such that it is subsumed within a concise statement raising the latter)

• See also Dissenting Opinion by Mundy, J.

Scott v. Pa. Bd. of Prob. & Parole, 16 WAP 2021 (Opinion by Donohue, J.) (holding that a challenge to Pennsylvania's life-without-parole statute as unconstitutional is subsumed within the Post Conviction Relief Act and cannot be brought against parole authorities in an action in the Commonwealth Court)

• See also Concurring Opinion by Mundy, J.

• See also Dissenting Opinion by Wecht, J.

Allocatur Grants

Commonwealth v. Harris, 104 EAL 2022 (granting review to consider whether the Commonwealth may satisfy its burden at a preliminary hearing via non-hearsay evidence of a crime and hearsay evidence of a defendant's identity)

Kramer v. Nationwide Prop. and Cas. Ins. Co., 113 MAL 2022 (granting review to consider whether an insurance policy covering bodily injury included coverage for emotional distress)

Commonwealth v. Walters, 195 MAL 2022 (granting review to consider the admissibility of a medical diagnosis made solely on the basis of "history" and not made with sufficient certainty)

Oberholzer v. Galapo, 154 MAL 2022 (granting review to consider the application of prior restraint doctrine to language giving rise to non-defamatory torts)

Abington Heights Sch. Dist. v. Pa. Lab. Rels. Bd., 118 MAL 2022 et al. (granting review to consider various claims arising out of a public collective bargaining dispute)

September 2022 Docket Review

This month, the Court issued 8 precedential opinions and 2 allocatur grants, summarized below.  But the Court's work product this month is overshadowed by the tragic loss of Chief Justice Max Baer, who passed away this weekend at the age of 74, just three months from what would otherwise have been his retirement at the end of the year.  Baer served as Chief Justice for roughly a year and a half, beginning in April 2021, and had served as a Justice on the court for nearly two decades, since 2004.  On the court and in the legal community, Baer was regarded as bright, with an ebullient love for justice, which showed perhaps most vividly during his vigorous questioning at the Court's oral arguments, and with a commitment to protecting children that no doubt grew from his earlier service as a Judge on the Famility Division of Allegheny County's Court of Common Pleas. 

In terms of major cases, most recently, Baer authored the Court's decision establishing Pennsylvania's new Congressional districts on the basis of "least change," a move clearly designed to protect the Court's institutional integrity in what could otherwise have been a political morass.  Earlier decisions are legion, but what this author recalls most about Justice Baer is his ability to tackle difficult subjects.  Baer frequently wrote decisions in difficult and confusing subject areas such as taxation, insurance regulation, and arcane property law, to name a few, and approached them with the same attention and gusto as even the highest-profile of cases.  May his memory be a blessing.

After Baer's passing, Justice Debra Todd took up the mantle as Chief Justice, and, in fact, as the first woman in Pennsylvania to serve in the role.  In the preceding months, Baer and Todd had begun preparing for the transition which was otherwise planned for the end of the year.  Todd, apart from authoring some of the Court's most high-profile cases in the last several years (more on this next month), has a reputation for writing with an eye toward accessibility and clarity, and for fostering consensus and conviviality among her colleagues, both of which are likely to serve her well as she takes over at the helm of the Court.

As for the vacant seat, in theory, the Governor, with consent of the Senate, has the authority to appoint a new justice to serve through next year's judicial elections.  In practice, given the relationship between Governor Tom Wolf and the Republican-controlled Senate (to say nothing of the relationship between the Court and the Senate), and the impending gubernatorial election, this author would anticipate the seat remaining vacant at least until a new governor is inaugurated.  And although a Governor Josh Shapiro might be able to push through the nomination of a moderate Democrat (or a moderate Republican) for a year, assuming he wins, it's likely the seat would remain vacant next year as well.  If Senator Doug Mastriano takes the governor's residence, on the other hand, expect a considerably conservative justice to be named, even if he or she would remain in the minority.  As this author has frequently stated, liberal and conservative are terms that tend to lose meaning when one takes the bench, and this Court far more often proceeds on issue-by-issue coalitions of traditionally liberal or conservative positions, rather than by predictably reliable liberal or conservative votes.

Precedential Opinions

Commonwealth v. Humphrey, 81 MAP 2021 et al. (Opinion by Baer, C.J.) (holding that a trial court has authority under the Mental Health Procedures Act to dismiss charges against an individual who is incompetent and unlikely to become competent to stand trial)

• See also Concurring Opinion by Brobson, J.

• See also Dissenting Opinion by Dougherty, J.

Rehabilitation and Community Providers Assn. v. Dept. of Hum. Servs., 13 MAP 2021 (Opinion by Mundy, J.) (applying administrative exhaustion doctrine to a dispute involving the adequacy of state funding for community participation support for certain disabled individuals)

• See also Concurring Opinion by Dougherty, J.

Cowher v. Kodali, 77 MAP 2021 (Opinion by Dougherty, J.) (applying the general verdict rule to a medical malpractice case)

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

Commonwealth v. Gamby, 62 MAP 2021 (Opinion by Todd, J.) (holding that the unwanted kissing of a person's neck constitutes the touching of "sexual or other intimate parts" for purposes of the offense of indecent assault)

• See also Dissenting Opinion by Donohue, J.

• See also Dissenting Opinion by Wecht, J.

Bell v. Wilkinsburg Sch. Dist., 25 WAP 2021 (Opinion by Todd, J.) (holding that a school district is not required to obtain prior approval from the Department of Education before changing the mode of transportation for charter school students from school buses to public transportation).

• See also Dissenting Opinion by Mundy, J.

Commonwealth v. Gallaway, 17 WAP 2021 (Opinion by Todd, J.) (holding that the probative value of a videotaped statement of a criminal defendant after his extradition and in prison garb was admissible)

• See also Dissenting Opinion by Wecht, J.

Commonwealth v. Stevenson, 21 WAP 2021 (Opinion by Baer, C.J.) (holding that the Commonwealth must prove actual knowledge of a protection-from-abuse order beyond a reasonable doubt to support a conviction for indirect criminal contempt)

• See also Concurring Opinion by Mundy, J.

• See also Dissenting Opinion by Wecht, J.

Commonwealth v. Taylor, 793 CAP (Opinion by Brobson, J.) (rejecting as untimely a serial collateral attack on a capital homicide conviction)

• See also Concurring Opinion by Dougherty, J.

• See also Dissenting Opinion by Donohue, J.

Allocatur Grants

Circle of Seasons Charter Sch. v. Northwestern Lehigh Sch. Dist., 172 MAL 2022 (granting review to consider the proper application of administrative exhaustion doctrine and other issues in the context of a charter school's property tax appeal)

Dept. of Corr. v. Lynn (State Civil Serv. Commn.), 181 MAL 2022 (granting review to consider the proper application of precedent involving the constitutionality of veterans' preferences in civil service promotions)

August 2022 Docket Review

This month, the Court issued 9 opinions and 4 allocatur grants.  On the opinion side, McLinko, which is the latest in legal challenges to Pennsylvania's 2020 mail-in voting legislation, has likely grabbed the most headlines.  For the uninitiated, the legislation was initially the product of all-too-rare bipartisan compromise in the General Assembly between the Republican caucus, who wanted to bring an end to straight-ticket voting that it believed advantaged Democrats, and the Democratic caucus, who wanted to make the franchise more accessible for populations that are often unable, and in any event, less likely, to show up to vote on election day, a circumstance that traditionally benefitted Republicans. 

After certain candidates for office in the 2020 election began raising doubts about the integrity of the process (with varying degrees of credibility), parties began challenging the law on various grounds, including on the ground that it violated a constitutional provision providing for absentee ballots.  Although a textual reading of the provision suggests no conflict -- in that both mail-in and absentee ballots can coexist peacefully -- the challengers relied on (1) a Civil-War era decision finding that legislative efforts to allow Union soldiers to mail in ballots in lieu of putting down their rifles, ceding Antietam Creek, and returning home (Johnny Reb in tow) to vote for county commissioner unconstitutional; and (2) subsequent revisions to the absentee ballot provision using similar language to argue that what was applied during the Siege of Shiloh was good for the Lockdown of 2020.  Although there were certainly arguments on either side as to whether and to what degree the precedent was incorporated into subsequent legislative enactments, the Court found no constitutional violation.  And in this author's opinion, Justice Wecht in concurrence put the crux of the case succinctly: "The contest between a requirement that may have been sewn into the fabric of the Constitution by the function of time or consistent legislative action and the document's plain language is no contest at all."  

On the allocatur side, I'm most interested in In the Interest of K.T.  In that case, the Court appears poised to offer some clarification for the analysis of parent-child bond (or lack thereof) that is a prerequisite to the termination of parental rights.  From county to county, and courtroom to courtroom, judges apply its two components -- the existence of a parent-child bond and the degree to which severance would cause a child harm -- with various degrees of ambiguity and weight.  At one extreme, a judge may reason that the existence of a parent-child bond at all is a disqualifying factor to termination.  At the opposite end, a judge may reason that no matter the degree of a bond, so long as it can be severed without eternally irreparable harm to the child, termination is warranted.  Discretion is a heck of a thing, and hopefully the Court will shed some additional light.

Precedential Opinions

McLinko v. Commonwealth, 14 MAP 2022 et al. (Opinion by Donohue, J.) (holding Pennsylvania's mail-in voting law does not violate constitutional provisions arguably limiting absentee voting)

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Mundy, J.

• See also Dissenting Opinion by Brobson, J.

Pennsylvania Environmental Defense Foundation v. Commonwealth, 65 MAP 2020 (Opinion by Baer, C.J.) (holding that several of the General Assembly's uses of oil-and-gas revenue do not violate constitutional provisions requiring that state resources be held in trust)

• See also Concurring Opinion by Donohue, J.

• See also Concurring Opinion by Mundy, J.

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

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

Commonwealth v. Reid, 784 CAP (Opinion by Baer, C.J.) (remanding a capital case for further proceedings on a claim of ineffectiveness in connection with a defendant's competence to stand trial)

• See also Dissenting Opinion by Mundy, J.

O'Neill v. State Employees' Retirement System, 25 EAP 2021 (Opinion by Todd, J.) (holding that the federal offense of "false statements to a federal agent" is not substantially the same as "false reports to law enforcement authorities" and thus does not trigger pension forfeiture under the Public Employe Forfeiture Act)

Commonwealth v. Lopez, 27 EAP 2021 (Opinion by Dougherty, J.) (holding that a trial court need not consider an offender's ability to pay in imposing court costs)

• See also Dissenting Opinion by Donohue, J.

Kornfeind v. New Werner Holding Co., Inc., 30 EAP 2021 (Opinion by Mundy, J.) (holding that the Pennsylvania Uniform State of Limitations on Foreign Claims Act does not require Pennsylvania courts ato borrow foreign jurisdictions' statutes of repose)

In re: Appeal of April 24, 2018 Decision of the Charlestown Township Zoning Hearing Board, 80 MAP 2021 (Opinion by Wecht, J.) (holding that a zoning ordinance permitting billboards is not de facto exclusionary as to a use where superseding state regulation forbids that use)

• See also Dissenting Opinion by Mundy, J.

• See also Dissenting Opinion by Brobson, J.

Goodwin v. Goodwin, 70 MAP 2021 (Opinion by Brobson, J.) (holding that under certain circumstances life insurance proceeds and individual retirement accounts can constitute gifts not classified as marital property and not subject to equitable distribution)

Povacz v. Pennsylvania Public Utility Commission, 34-45 MAP 202 (Opinion by Donohue, J.) (holding that legislation providing for "smart" electric meters does not require they be furnished to all customers and does not permit customers to opt out of their installation)

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

Allocatur Grants

Commonwealth v. Jackson, 58 EAL 2022 (granting review to consider suppression of the evidence on the ground of a lack of actual suspicion)

N.W.M. v. Langenbach, 67 EAL 2022 (granting review to consider quasi-judicial immunity as applied to guardians ad litem)

Fiochetta v. Fiochetta, 67 WAL 2022 (granting review to consider the legality of awarding child support for constructive childcare expenses)

In the Interest of K.T., 177-178 WAL 2022 (granting review to consider the appropriate formulation of parent-child bonding analysis)

July 2022 Docket Review

This month the court issued 4 precedential opinions and 3 allocatur grants.  

On the opinion side, I'm  most interested in Jordan, which changes the landscape for certain kinds of elections challenges.  Under prior law, candidates wishing to challenge other candidates' as ineligible based on a lack of constitutionally required residency were essentially shut out of court by earlier decisions reasoning that the constitutional requirement was not self-executing, and not authorized by the General Assembly in the Elections Code.  Thus, if, say, Candidate A wanted to challenge Candidate B's right to run for state legislator on the ground that Candidate B was not a Pennsylvanian, but actually from New Jersey, Candidate A was right, but there was no procedural mechanism for him to raise his claim.  Practically, this meant that Candidate A had to run against Candidate B, and, after losing, bring a claim pursuant to an extraordinary writ in the Supreme Court to roll back the results of the election.  Not easy, and certainly not politically popular.  After Jordan, Candidate A can now challenge Candidate B before the ballots are printed.  Sometimes common sense and the law do align.  In the Court's other three cases -- Jones-Williams, Pownall, and Khalil -- the Court is dancing the sidestep, avoiding two difficult constitutional questions involving the conduct of law enforcement officers, and one unseemly one involving the conduct of lawyers.  That said, the secondary opinions in each of the cases are worth a look, as they do offer some idea of where the Court was not willing to go, or at least not willing to go just yet.

On the allocatur side, I'm looking to Rizor, which involves the standard for proving ineffective assistance of plea counsel in criminal cases.  For the uninitiated, about 95% of criminal cases in Pennsylvania proceed via a guilty plea of some kind, and the process whereby defendants enter pleas makes it extremely difficult to withdraw them.  At the time of a plea, a defendant is generally required to tender oral and written guilty plea colloquies agreeing that he knows his rights and waives them, that he is guilty, and that he is satisfied with plea counsel's representation.  And although he nominally has the right to assert that he pled guilty because of the ineffective advice of plea counsel, his testimony during the colloquy often estops him from alleging what he needs to allege to make out a claim.  And even if his claim is predicated on facts outside the scope of the colloquy, he generally has to convince the same judge who took his tendered plea that he is now telling the truth about counsel's errors and their effect on his decision to plead guilty.  It's a steep climb.  And in Rizor's case, it appears the Court may be inclined to take a look at that process and perhaps provide some guidance as to just how steep it should be.

Precedential Opinions

In re: Nomination of Jordan, 56 MAP 2022 (Opinion by Wecht, J.) (holding qualification challenges to candidates for General Assembly are justiciable under the Election Code)

• See also Dissenting Opinion by Brobson, J.

Commonwealth v. Jones-Williams, 27 MAP 2021 (Opinion by Mundy, J.)  (holding warrantless seizure of blood drawn by a hospital violated the constitutional protection against unreasonable searches and seizures,  and did not comply with a provision of Pennsylvania's implied-consent law, and vacating the Superior Court's holding that the provision was unconstitutional)

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

Commonwealth v. Pownall, 17 EAP 2021 (Opinion by Dougherty, J.) (holding that appeal from denial of pretrial motion challenging a defense jury instruction was interlocutory)

• See also Special Concurring Opinion by Dougherty, J. 

• See also Dissenting Opinion by Wecht, J. 

Khalil v. Williams, 24 EAP 2021 (Opinion by Todd, J.) (holding that a plaintiff's legal malpractice claims rooted in the consequences of her settlement were not barred by prior cases forbidding a plaintiff from challenging the adequacy of a settlement she agreed to in the absence of fraud)

• See also Concurring Opinion by Wecht, J.

• See also Concurring Opinion by Mundy, J.

Allocatur Grants

Dinardo v. Kohler, 62 & 63 EAL 2022 (granting review to consider whether the "no felony conviction rule" precludes damages for medical malpractice related to criminal conduct)

Commonwealth v. Rizor, 27 & 40 WAL 2022 (granting review to consider the proper standard of review for PCRA actions involving ineffective advice in connection with a plea)

Commonwealth v. Zilka, 31 & 32 EAL 2022 (granting review to consider the constitutionality of Philadelphia's refusal to permit a taxpayer a credit for taxes paid to other jurisdictions)

June 2022 Docket Review

This month on SCOPABlog, the Court issued five precedential opinions and eleven grants of allocatur

On the opinion side, the Court issued two opinions refining its "illegal sentence" doctrines, one of the more confusing areas of Pennsylvania criminal law, in part because the phrase "illegal sentence" has been used somewhat haphazardly in three different contexts.  First, a claim of an "illegal sentence" is exempt from judicially developed issue-preservation requirements and cannot be waived at any time.  Second, a claim of an "illegal sentence" is shorthand for, and has been jurisprudentially blended with, statues providing for collateral relief from sentences which "exceed the lawful maximum" under the PCRA.  And third, some claims of an "illegal sentence" are actually claims that a sentence was inadvertently entered, as evidenced by its clear conflict with black letter law, and thus amenable to correction under a court's inherent power to correct its records.  Over the years, the categories have tended to bleed between one another.  

In Prinkey, the Court provided a fairly accessible general discussion of what kinds of claims challenge "illegal sentences" for purposes of the PCRA: those impacting a trial court's authority to impose a particular sentence, as opposed to its exercise of that authority, and concluded that a claim that a prosecutor vindictively invoked a mandatory minimum sentence in retaliation for a defendant's successful challenge to an earlier sentence, insofar as it constitutes a claim that the prosecutor vindictively deprived the trial court of authority to impose a lesser sentence, satisfies the test.  Prinkey's discussion in this regard comes at what seems to be the conclusion of a long line of cases, initiated by then-Justice, now-Chief Justice Baer, advancing its basic proposition, and is likely to be the starting point for claims of illegal sentence under the PCRA going forward.  

In Thorne, the court holds that claims challenging "illegal sentences" for purposes of waiver include challenges to sexual offender registration and notification requirements as unconstitutional on the ground that facts triggering them are not submitted to a jury.  The holding is curious because, as Chief Justice Baer argued in dissent, there is as yet no authority for the proposition that those requirements are sentences at all, but, rather, by all accounts, they are currently cognized as collateral civil consequences of conviction.  Although, in this author's opinion, Chief Justice Baer's point is well taken, the holding is essentially that where a litigant claims that a collateral civil consequence is actually a sentence, and an illegal one, he will be given the benefit of the doubt for purposes of issue-preservation.

On the allocatur side, the most newsworthy case is going to be Barris, in which the Court will be considering zoning restrictions on target-shooting in the wake of increasingly gun-friendly federal constitutional jurisprudence, and whether the contours of the right to bear arms embrace a right to become proficient in the use of them, and to do so in private residences.  Whatever the Court decides, it seems likely that the litigants could be headed to Washington before the case is over.  That said, I'm most interested in Sullivan, in which the Court will be revisiting its 2014 decision partially-adopting the Third Restatement's approach to the admissibility of industry and regulatory standards in products liability actions.  The Court in 2014 was quite differently composed than it is now, the chief (no pun intended) difference being the current absence of then-Justice Thomas Saylor, who steadfastly advocated for adopting the Third Restatement, combined with the now-presence of several new justices whose views often align with plaintiffs in civil actions.  Sullivan will be important not only for its holding and its application in product liability actions, but also as a marker of just how different the Court is today as it pertains to civil cases.

Precedential Opinions

Commonwealth v. Prinkey, 23 WAP 2021 (Opinion by Wecht, J.) (holding that a challenge to a vindictively-invoked mandatory minimum sentence sounds in the legality of sentencing for purposes of the PCRA and is cognizable pursuant to the PCRA)

• See also Dissenting Opinion by Mundy, J.

Commonwealth v. Thorne, 20 WAP 2021 (Opinion by Brobson, J.) (holding that a challenge to the constitutionality of sexual offender registration and notification requirements sounds in the legality of sentencing for purposes of issue-preservation requirements and is therefore not waivable)

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

In re: Estate of Jabbour, 13 WAP 2021 (Opinion by Wecht, J.) (holding that the six-month time period for spousal-share election applies equally to revocations of such elections)

Allocatur Grants

Auue, Inc. v. Borough of Jefferson Hills, 238 WAL 2021 (granting review to consider several issues regarding the authority and competing authority of zoning hearing boards and zoning officers)

Ferguson v. PennDOT, 28 MAL 202 (granting review to consider whether enhanced license suspensions based on a defendant's acceptance of DUI-related alternative rehabilitative disposition violate due process)

Commonwealth v. Rollins, 27 MAL 2022 (granting review to consider whether a DUI statute lacks a maximum term of imprisonment and is unconstitutionally vague)

Pennsylvania Interscholastic Athletic Assn. v. Campbell, 677 & 678 MAL 2021 (granting review to consider the status of the Pennsylvania Interscholastic Athletic Association with respect to the Right-to-Know Law)

Vinculum, Inc. v. Goli Technologies, LLC, 682 MAL 2021 (granting review to consider a trial court's refusal to enforce a contractual provision for breach-of-contract-related attorneys' fees and in limiting questioning on damages to one year post-breach)

Bindas v. PennDOT, 184 WAL 2021 (granting review to consider the gravity and effect of eminent-domain recording and indexing requirements)

Sullivan v. Werner Company, 324 EAL 2021 (granting review to consider the admissibility of industry and regulatory standards in a products liability action)

Commonwealth v. McGinnis, 204 WAL 2021 (granting review to consider the admissibility of generalized expert testimony about false memories in a prosecution for child sexual abuse)

Barris v. Stroud Twp., 363 MAL 2021 (granting review to consider whether a zoning ordinance restricting target-shooting violates the federal constitutional right to bear arms)

Klar v. Dairy Farmers of America, Inc., 25 WAL 2022 (granting review to consider whether dram-shop principles apply to a partially-social host)

Rush v. Erie Ins. Exch., 37 MAL 2022 (granting review to consider a regular-use exclusion in an auto insurance policy violates the Motor Vehicle Financial Responsibility Law)

May 2022 Docket Review

This month on SCOPABlog, the Court issued one precedential opinion and five grants of allocatur.  On the opinion side, there is only A.L., in which the court addresses a version of a question it's addressed many times before: whether an out-of-state offense is sufficiently similar to an in-state offense to count for purposes of a collateral a civil statute.  Here, the out-of-state offense is sexual assault under the Uniform Code of Military Justice, the in-state offense is sexual assault under the Crimes Code, and the collateral civil statute is Pennsylvania's sexual offender registration and notification statute.  The Court answered the question simply enough: sexual assault under the UCMJ, which allows convictions where the offender was negligent as to whether the victim was too intoxicated to consent, is broader than sexual assault under the Code, where the offender must be at least reckless, and therefore they are not comparable and do not share sexual offender registration requirements.  The more interesting aspect of the opinion is that the Court unanimously adopts a “categorical approach” previously identified by the United States Supreme Court, which essentially requires courts to look to the elements of crimes, and a certain limited universe of documents, to determine the nature of an offense, rather than to the factual basis for the offense.  This is interesting for two reasons: first, the Court rarely adopts federal rules of decision into Pennsylvania law, in part because the Court is moderate-to-liberal on the whole, and the federal courts are increasingly conservative, but moreso because the Court is generally guarded with respect to ceding future development of the law to other courts.  Additionally, the opinion seems to suggest that the Court has sanctioned the “categorical approach” not only for purposes of determining “comparability” under SORNA, but also for a whole host of other civil statutory regimes as well.  The court may be tired of playing “spot the difference” with foreign criminal statutes, and more inclined in the future to leave A.L. in place, and its application to the lower courts in future instances.

On the allocatur side, I'm most interested in Weeden, which involves whether "ShotSpotter" reports, which purport to use sonic technology to identify the location of gunfire, are "testimonial" for purposes of the federal and state constitutional right to confront witnesses, and, thus, whether their admission into evidence must be accompanied by the author's testimony, subject to cross-examination.  Although the question is specifically about ShotSpotter reports, the decision could impact all sorts of other forensic technologies as well.

Precedential Opinions

A.S. V. Pa. State Police, 57 MAP 2021 (Opinion by Mundy, J.) (adopting the “categorical approach” for comparing foreign convictions to domestic convictions and holding that sexual assault based on lack of capacity under the Uniform Code of Military Justice is not comparable to sexual assault based on lack of capacity under the Crimes Code for purposes of sexual offender registration requirements)

Allocatur Grants

HTR Restaurants, Inc. v. Erie Ins. Exch., 317, 318, 334, & 335 WAL 2021 (granting review to consider two issues relating to motions to coordinate multi-county litigation under Pennsylvania Rule of Civil Procedure 213.1 )

In re: Trust Under Deed of Garrison, 587-589 MAL 2021 (granting review to consider Superior Court's refusal to modify trust per consent of settlor and beneficiaries)

In re: Koepfinger, 162 WAL 2021 (granting review to consider effect of statutorily defective powers of attorney)

Commonwealth v. Weeden, 196 WAL 2021 (granting review to consider whether “shotspotter” reports are testimonial in nature for purposes of the federal and state right to confront witnesses in a criminal trial)

Mercer v. Newell, 260 EAL 2021 (granting review to consider certain intentional-tort exceptions to the Workers' Compensation Act's preemption of employee-employer claims)

Scott v. Husqvarna Prof. Prods., Inc., 147 EAL 2021 (granting review to consider the Superior Court's observance of the applicable standard of review and determination that a trial court erred in determining that a corporate defendant's miniscule sales were de minimis and thus insufficient to render venue proper)

April 2022 Docket Review

This month, the Court issued 2 precedential opinions and 7 grants of allocatur.  On the opinion side, the Court issued only two precedential opinions, both in capital cases, and both quietly reaffirming or expanding constitutional protections for criminal defendants.  In Parrish, the court held that a post-conviction petitioner was entitled to a remand to the lower court to pursue a claim that prior post-conviction counsel was ineffective in failing to assert a claim that trial counsel was ineffective in failing to consult with him about filing an appeal.  The court's opinion underlined its commitment not only to its recent decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), which allowed petitioners who obtain new counsel on appeal to challenge prior post-conviction counsel's ineffectiveness at the earliest available opportunity, and to a long line of decisions culminating in Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018), which hold that any attorney errors or omissions that forfeit appellate or post-conviction review constitute ineffectiveness per se and require reinstatement of the defendant's appellate or post-conviction rights.  Similarly, in Holt, Justice Donohue, writing for a plurality, and receiving no contrary expressions on the point, evaluated the question of whether the defendant's conviction was supported by constitutionally sufficient evidence pursuant to a standard previously challenged but preserved by the Court in Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012), that requires a qualitative, holistic assessment of the evidence of record as a whole.  The court's reaffirmance of these doctrines, all of which lead to additional litigation and/or more expansive appellate review, may be something of a missive to the Superior Court, which, in general, given its overloaded docket, is sometimes regarded as too-narrowly interpreting the governing law in this area.

Also, it's worth noting a non-precedential opinion issued this month, which may be a shape of things to come.  In Commonwealth v. Edwards, J-53-2021, the Court attempted to answer the question of whether or under what circumstances a prosecutor's racially discriminatory use of peremptory juror strikes constitutes misconduct sufficient to bar the defendant's retrial pursuant to constitutional protections against double jeopardy.  Unfortunately, the court was unable to reach a majority expression.  Chief Justice Baer, joined by Justice Todd, advocated against adopting a per se rule and for a totality-of-the-circumstances test bearing in mind the countervailing interest in prosecuting crime, and that the prosecutor's conduct therein, a single racially discriminatory strike, did not amount to overreaching warranting dismissal.  Justice Mundy, joined by Justice Dougherty, argued that such a use of juror strikes, in view of the fact that jury selection occurs before double jeopardy attaches at trial, never warrants dismissal.  Justice Donohue, joined by Justice Wecht, advocated that racial discrimination by prosecutors is always overreaching warranting dismissal. Chief Justice Emeritus Saylor, who retired prior to the opinion's issuance, and Justice Brobson, who joined the court after it was submitted, did not participate in the decision.

But what is the rule here?  On one hand, it's clear that a majority of the Justices held that, at least under certain circumstances, dismissal is the appropriate remedy.  On the other hand, adopting that rule was not necessary to the decision.  Doctrinally, splintered decisions are typically interpreted as standing for their "narrowest ground," but here, the narrowest ground seems to be nothing more than the defendant not being entitled to dismissal.  Predictively, by the time Edwards is reinterpreted or revisited, it is likely that Chief Justice Baer will have retired, and that Justice Brobson, as well as a Justice-to-be-elected in late 2023 will be added to the mix.  Presuming that Justices Todd, Donohue, Wecht, Mundy, and Dougherty remain committed to their positions, and Justice Brobson is persuaded that retrial is never warranted, it will be up to the newly elected Justice to break the tie.  All of which is to say that although the Court is often regarded as brazenly and uniformly liberal, and that the Justices elected as Democrats, and particularly those elected as Democrats in 2015 are the engine of that liberalism, the next few years will show a lot of nuance in that regard.  

On the allocatur side, I'm interested in Shaffer, which addresses whether a post-conviction petitioner raising a claim of ineffectiveness in connection with the trial judge's recusal must prove actual prejudice, and which thereby seems poised to give the Court an opportunity to expand on its nascent jurisprudence of structural error affecting the machinery of deliberation itself.  Additionally, at the risk of seeming self-indulgent, the grant of this author's appeal in McGee, which considers whether a trial court retains its inherent authority to correct mistakes in its orders survives the time-bar provisions of the PCRA, may give the Court the opportunity to limit, or perhaps even reconsider, what many have argued are too-strict interpretations of the time-bar.

Precedential Opinions

Commonwealth v. Parrish, 791 CAP (Opinion by Donohue, J.) (remanding for proceedings on a capital post-conviction petitioner's claim that post-conviction counsel was ineffective in failing to raise a claim that trial counsel was ineffective in failing to consult with him regarding his right to file an appeal)

• See also Dissenting Opinion by Dougherty, J.

Commonwealth v. Holt, 789 CAP (Opinion by Donohue, J.) (adjudicating numerous claims in a capital direct appeal)

• See also Concurring Opinion by Dougherty, J.

Allocatur Grants

Commonwealth v. Koger, 270 WAL 2021 (granting review to consider whether the Superior Court improperly expanded precedent requiring that non-criminal probation violations implicate a specific condition of probation to the context of parole)

Commonwealth v. Green, 360 WAL 2021 (granting review to consider whether juvenile transfer orders are subject to a strict twenty-day limitation or subject to equitable exceptions like other procedural requirements)

In re: Chester Water Authority Trust, et al., 519 MAL 2021, et al. (granting review to consider several issues in connection with the governance of the Chester Water Authority)

Commonwealth v. Shaffer, 593 MAL 2021 (granting review to consider whether a post-conviction petitioner asserting a claim that trial counsel was ineffective in failing to request the trial judge's recusal on the basis of an appearance of impropriety must prove prejudice)

Commonwealth v. McGee, 297 WAL 2021* (granting review to consider whether a trial court's inherent authority to correct patent and obvious mistakes persists notwithstanding the time-bar provisions of the PCRA)

Mimi Investors, LLC v. Tufano, 641 MAL 2021 (granting review to consider whether a plaintiff in an action for securities fraud must plead and prove scienter by clear and convincing evidence)

Note: This author is Petitioner's counsel in McGee.

March 2022 Docket Review

This month, the Court issued 1 (maybe) precedential opinion and 10 grants of allocatur. 

On the opinion side, on March 9, the court issued its highly anticipated decision in Carter, adopting a remedial Congressional redistricting plan proposed by the Carter petitioners, a citizen-group represented by a prominent national-Democratic-aligned elections firm, in light of the extant inability of the General Assembly and Governor to agree on a map.  The Carter plan's main (or at least a major) goal was to manage Pennsylvania's loss of a Congressional seat while accomplishing the "least change" from Pennsylvania's 2018 court-ordered map.  Other groups offered maps that featured goals such as the mathematical optimization of traditional and other redistricting goals, significant public input, durability of partisan fairness during anomalous elections, and deference to the legislature, to name a few.

As I wrote last month, there were a few issues that would be of significant importance in this and future cases, primarily the relative importance of traditional redistricting criteria, such as compactness and the avoidance of splitting political subdivisions into multiple Congressional districts, and partisan fairness following its 2018 decision in League of Women Voters v. Commonwealth.  On that issue, the court had essentially three options: (1) traditional redistricting criteria are primary, and any resulting artificial partisan tilt is acceptable; (2) traditional redistricting criteria and partisan fairness are all factors to be considered; and (3) traditional redistricting criteria must be complied with and avoid artificial partisan tilt.

The majority opinion, authored by Chief Justice Max Baer, and joined by Justices Christine Donohue, Kevin Dougherty, and David Wecht seems to suggest a blend of the latter two, finding the citizen-group's plan superior or comparable to its peers, ultimately concluding that it "best abides by the traditional core criteria with attention paid to the subordinate historical considerations and awareness of partisan fairness."  Frankly, the majority opinion reads like one ensuring that it is a majority opinion.

But did it? The other three Justices in the majority authored concurring opinions glossing on the pertinent analysis.  Justice Donohue appeared to favor the second approach, opining that when competing plans comply with traditional redistricting criteria, "consideration of the degree of partisan fairness must . . . drive the ultimate selection of a plan[,]" albeit disqualifying other plans which scored better on that metric because they disrupted communities of interest.  Justice Dougherty viewed the plan's "least change" approach as a tiebreaker of sorts, and Justice Wecht expressed similar sentiments.

Justice Debra Todd, for her part, dissenting, preferred the first approach, and, consequently, would have adopted a plan proposed by a citizen-group of primarily mathematicians and statisticians that optimized traditional redistricting criteria.  Justice Sallie Mundy also expressed a desire to confine the task to the traditional redistricting criteria, offering a fairly compelling statistical analysis as to the Carter plan's shortfalls in that regard. And finally, now-Justice Brobson authored an opinion arguing that the adopted plan violated the federal constitutional principle of "one person, one vote," because some districts had a population deviation of two persons and chiding the majority for considering partisan fairness as a step beyond the proverbial "political thicket" and into a "partisan quagmire."

What is the analysis after Carter, other than that the Court adopted a particular map?  It's hard to say.  The procedural posture of the case, in which the Court was not called on to declare that a particular map was illegal, but, rather, to choose a map, obscures the degree to which its reasoning will be binding or even useful in the future.  And, in substance, what degree of compliance with the "traditional core criteria" is necessary to make a map lawful?  How much attention must be paid to subordinate considerations like the combining of communities of interest into a single Congressional district?  And how much "awareness" of partisan fairness is appropriate?  Is the question now whether a plan is *too* unfair?

In this author's opinion, the Court missed an opportunity to ensure that future plans are truly fair to voters by failing to adopt a clear rubric and allowing some unspecified degree of dilution of their votes in service of other goals.  It's certainly true that the Carter plan has a lot going for it, but one suspects that the leeway Carter gives to mapmakers can and will be used for good and ill in ten years, when the political geography of Pennsylvania, or the Court, may look quite different than it does today.

Precedential Opinions

Carter v. Chapman, 7 MM 2022 (Opinion by Baer, C.J.) (adopting a remedial Congressional redistricting plan in light of the extant impasse in legislatively adopting one)

• See also Concurring Opinion by Donohue, J.

• See also Concurring Opinion by Dougherty, J.

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Todd, J.

• See also Dissenting Opinion by Mundy, J.

• See also Dissenting Opinion by Brobson, J.

Allocatur Grants

Commonwealth v. Smoot, 98-105 MAL 2021 (granting review to consider whether a defendant's lack of counsel for three of the four months before his trial constituted denial of his right to counsel)

Commonwealth v. Dunn, 81 WAL 2021 (granting review to consider whether the Commonwealth's failure to provide notice of its intent to call an expert witness violated a statutory notice provision and/or the Rules of Criminal Procedure and/or the defendant's federal and state constitutional rights to due process)

Vellon v. PennDOT, 555 MAL 2021 (granting review to consider whether charged, but not adjudicated DUIs constitute prior offenses for purposes of a drivers' license suspension statute)

Franczyk v. The Home Depot, Inc., 315 WAL 2021 (granting review to consider whether an employee injured by a non-employer third-party is precluded by the Workers' Compensation Act from suing in tort)

South Bethlehem Assoc. v. Zoning Hearing Bd. of Bethlehem Twp., 95 MAL 2021 (granting review to consider standing in zoning appeals)

Commonwealth v. Taylor, 609 MAL 2021 (granting review to consider whether harmless error analysis applies where a trial judge considers an impermissible factor in certifying a juvenile delinquency case to criminal court and whether juveniles who "age out" of the juvenile justice system remain subject to criminal proceedings)

Franks v. State Farm, 563 MAL 2021 (granting review to consider whether the deletion of a vehicle from an automobile policy is a "purchase" triggering the obligation to obtain a new waiver of uninsured/underinsured coverage "stacking")

The Bert Co. v. Turk, 320 WAL 2021 (granting review to consider several issues related to the constitutionality of punitive damage awards under the federal constitutional right to substantive due process).

Pa. State Police v. ACLU, 662 MAL 2021 (granting review to consider whether an appellate court abuses its discretion by sua sponte remanding a Right-To-Know matter to the Office of Open Records for additional fact finding)

Salsberg v. Mann, 433 EAL 2021 (granting review to consider whether to recognize claims by an employee of intentional interference with a third party's performance of a contract committed by the employee's supervisor outside the scope of employment)

February 2022 Docket Review

This month, the Court issued 2 precedential opinions and 5 grants of allocatur.

On the opinion side, the most significant opinion is one that hasn't been written yet.  In Carter v. Chapman, 7 MM 2022,* the Court issued an order adopting a remedial Congressional redistricting plan in the wake of Pennsylvania's loss of a Congressional seat and the political branches' inability to enact a plan, indicating an opinion will follow.  The court selected a plan proposed by a citizen-group which offered a lower-case-c conservative approach of making as few changes as possible to the current plan as reasonably possible, essentially absorbing one district into its neighbors and expanding or contracting districts as population changes dictated.  Politically, the map creates 4 strong-Democratic districts, 2 weak-Democratic districts, 3 very-competitive districts, 2 weak-Republican districts, and 6 strong-Democratic districts, for an aggregate 6-3-8 map that gives Republicans a mild advantage in Congressional elections relative to their statewide voteshare.  A full analysis of the plan, and its competitors, is available at FiveThirtyEight here.

The opinion's resolution of a few issues will be of significant importance.  First, it is notable that at a special session in Carter, numerous members of the court seemed highly suspicious of proposed plans that "split" the City of Pittsburgh into two Congressional districts.  The suspicion is based on the Court's 2018 anti-gerrymandering decision, which borrowed certain traditional redistricting criteria which are constitutionally mandated in the state legislative reapportionment process, among them the avoidance of splitting political subdivisions except where "absolutely necessary to achieve population equality." This text notwithstanding, however, the Court in the state reapportionment process has retreated from an absolutist reading, recognizing that splits may serve other important goals as well, such as district compactness, or, presumably, after its 2018 decision, protecting against partisan vote dilution.  Further, it also ignores some nuance: not all splits are created equal.  The Court's adopted plan, for example, splits the borough of Swissvale, population 8,983, in Allegheny County.  Whatever strength the unified voters of Swissvale might have had in a single Congressional district, it is now diluted in each of two districts.  Contrariwise, inasmuch as Pittsburgh boasts 302,205 residents and is greater in population than any other Western-Pennsylvania municipality by multiple factors, one can readily imagine that if Pittsburgh were split in two, candidates in each district would continue to visit and seek support from Pittsburghers.  And that's putting aside that there is no obvious hierarchy regarding the kind of split.  The Court's adopted plan avoids splitting Pittsburgh, in part, by splitting Westmoreland County, which has roughly 300k residents as well.  Is a county split worse than a city split?  How about a borough or a ward? In this author's view, the analysis must be a little more refined than a race to the lowest number of splits, and predominately focused on vote dilution.  Perhaps most importantly, if the Court adopts this textual approach in the context of Congressional districts, it may have to revisit it in state legislative districts, where, because those districts are smaller, it may have far greater implications for the political fairness of the plans.

Another interesting issue will be whether and to what degree the Court addresses what some have called a "natural gerrymander" in favor of Republicans in Pennsylvania.  The theory behind this "natural gerrymander" is that Democratic voters are more clustered in urban areas, and Republican voters are less clustered in rural ones.  Respectfully, although there is certainly self-sorting among voters, the "natural gerrymander" is bunk, at least in the Congressional redistricting context.  It rests on the notion that if we are to keep districts compact and political subdivisions whole, all potential plans have a Republican bias.  Yet, the numerous plans in Carter show that plans that avoids a gerrymander can be more compact, and protect more political subdivisions than others.  In short, because Congressional districts are so large, compactness, political-subdivision integrity, and partisan fairness are not at odds.

In any event, unsatisfied, some Republicans have sued in federal court challenging the Court's authority to adopt a remedial plan at all, claiming the United States Constitution vests that authority with state legislatures, not state courts, and that absent an enacted plan, Congressional elections should proceed according to a federal statute providing for at-large elections.  

Respectfully, in this author's opinion, this claim ignores not only the fact that the U.S. Supreme Court has repeatedly recognized that the constitutional provision at issue has routinely been interpreted to vest redistricting authority in the state's lawmaking power, subject to local conditions (e.g., gubernatorial veto, initiative and referendum, or even displacement into an independent redistricting commission), but also the fact that the Court here has legislatively granted authority to take up "any matter pending before any court . . . involving an issue of immediate public importance, assume plenary jurisdiction . . . and enter a final order or otherwise cause right and justice to be done." 42 Pa.C.S. § 726.  That said, we are dealing with a different SCOTUS than before.  The court would be well advised to draft its opinion with an eye toward addressing the claim.

On the allocatur side, the case with the greatest impact is likely to be Berkshire Hills, which will consider whether two common local/school district taxing authority practices -- the selective assessment of high-value properties and new properties -- is unconstitutionally discriminatory.  In short, the claim is that appealing the tax assessments of such properties, but not others, leads to certain classes of properties being taxed more highly than others, contrary to a provision in the Pennsylvania constitution requiring that taxes be "uniform" with respect to similarly situated individuals and properties.  If the Court determines that question in the affirmative, it could lead to a vast upheaval in the administration of local real estate taxes, likely to the chagrin of those owning ordinary residential and long-held properties.

Precedential Opinions

Arlet v. Workers' Comp. Appeal Bd., 12 WAP 2021 (Opinion by Mundy, J.) (adopting a “no-coverage” exception to the rule that insurers may not seek subrogation from insureds)

Commonwealth v. Felder, 18 EAP 2018 (Opinion by Dougherty, J.) (holding that a claim that a juvenile homicide offender was improperly sentenced to a de facto life sentence without federal-constitutionally mandated findings about his rehabitability was invalid in light of a U.S. Supreme Court decision holding that the federal constitution did not mandate the findings)

• See also Concurring Opinion by Donohue, J. 

• See also Dissenting Opinion by Wecht, J.

Allocatur Grants

McLaughlin v. Nahata, 255 WAL 2021 (granting review to consider whether a defendant hospital may pursue a claim for indemnification from a third-party dialysis clinic)

Commonwealth v. Capriotti, 535 MAL 2021 (granting review to consider whether the Superior Court erred in its application of the so-called “silver-platter” exception to the exclusionary rule where a non-occupant of a home invited police inside to retrieve items he already discovered)

Commonwealth v. Rivera, 494 MAL 2021 (granting review to consider whether the improper admission of post-arrest, post-Miranda silence is presumptively prejudicial)

Brown v. City of Oil City, 292 WAL 2021 (granting review to consider the viability of a claim against a contractor for a known dangerous condition on land)

Berkshire Hills LLC v. Berks Cnty. Bd. of Assessment, 452 MAL 2021 (granting review to consider whether a school district's selective pursuit of real estate assessment appeals violates the Uniformity Clause of the Pennsylvania Constitution)

*In the interest of full disclosure, this author was among the counsel for an intervenor in Carter and a related action.

** Because Justice Donohue and Justice Todd, who joined the concurrence, provided the majority votes, Justice Donohue's concurrence, which is narrower on some points, is essentially authoritative on those points.

January 2022 Docket Review

This month, the Court issued 0 published opinions and 5 allocatur grants.  

On the opinion side, well, crickets.  But on the allocatur side, the Court in Rosario and Verbeck is taking up review to consider two criminal-defendant friendly Superior Court precedents: in Rosario, the Superior Court's decision in Commonwealth v. Simmons, 56 A.3d 1280 (Pa. Super. 2012) (en banc) (holding that a trial court lacks authority to revoke a term of probation that has not yet begun); and in Verbeck, the Superior Court's decision in Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020) (holding a defendant's acceptance of an accelerated rehabilitative disposition of DUI charges does not constitute a conviction for purposes of DUI-recidivist sentencing provisions).  Given that the Court is itself perceived as defendant friendly (this author argues it is merely non-defendant-hostile, as compared with earlier courts), it might seem strange that it would take up review since not doing so would leave the law as it is.  Assuming that the Court ultimately agrees with Simmons and Chichkin (which may actually be incorrect), there are nevertheless good reasons to grant review.  First, the Court may simply wish to establish the holdings as final and authoritative Supreme Court precedents.  Second, the Court may find the lower courts' analysis lacking in some respect.  Although perhaps not in Simmons and Chichkin, the intermediate appellate courts, tasked with massive dockets, does not always conduct a complete statutory interpretation analysis, or address all potential arguments on such wide-sweeping issues of public importance.  Here, both Simmons and Chichkin create somewhat anomalous practical applications: pursuant to Simmons, a defendant who violates parole a short time before it expires and a term of probation begins faces significantly less sanctions than one who makes it a few days more in the term of probation itself; pursuant to Chichkin, a first-time DUI offender accepting accelerated rehabilitative disposition avoids not only his first-time DUI's sanctions, but also arguably obtains a bonus with respect to any subsequent DUIs.  It will be interesting to see how the parties' arguments and the court's analysis shift now that the stakes are clear and final.

Allocatur Grants

Commonwealth v. Rosario, 298 WAL 2021 (granting review to consider whether Simmons, supra, was incorrectly decided and/or violated principles of stare decisis)

Commonwealth v. Perrin, 394 EAL 2021 (granting review to consider the permissibility of stipulations to witness credibility)

Alpini v. Workers' Comp. Appeal Bd. (Tinicum Twp.) (granting review to consider whether an employer that paid Heart and Lung Benefits is entitled to subrogation with regard to the employee's negligence and Dram Shop claims against a third party)

Commonwealth v. Verbeck, 406 MAL 2021 (granting review to consider whether Chichkin was incorrectly decided)

In the Interest of K.N.L., 492 EAL 2021 (granting review to consider the appropriate scope of third-party in loco parentis standing in dependency/adoption actions)

December 2021 Docket Review

This month, the Court issued 25 (!) opinions and 2 allocatur grants.   The Court's tour de force this month likely owes not to any desire on the Justices' part to avoid celebrating the holidays, but, rather, to the fact that Justice, now Chief Justice Emeritus Saylor faced mandatory retirement on New Year's Eve.  It is common for the Court to essentially clear as much of the docket as it can when facing an impending change in its composition so as to avoid resubmission to the court and restarting the deliberative process.

Additionally, it seems altogether fitting that one of Chief Justice Emeritus Saylor's final opinions is his concurring (in the result) opinion in Metal Green, which says as follows, in toto:

In some material respects, my sentiments are more in line with positions advanced by Justice Wecht in his dissenting opinion than the lead Justices' approach. For example, although the concept of a minimum variance requirement already is confounding in the context of use (as opposed to dimensional) variance scenarios, I agree with Justice Wecht that blight should be considered in the assessment. In reaching this conclusion, I recognize that such consideration injects additional layers of abstractness and subjectivity into the calculus. However, the alternative of ignoring blight when attempting to reconcile the degree of impact of a non-conforming use upon the character of a neighborhood with the burden suffered by the applicant appears to me to be the less palatable alternative.

Ultimately, while I find that the zoning board's failure to render a reasoned decision tests the limits of arbitrariness, I support the lead Justices' approach of implementing the mainstream remedy of a remand for appropriate consideration. When Appellant purchased the subject property, the relevant the local zoning restrictions and the rigorous requirements which must be met to evade them were in place; moreover, there is an element of discretion associated with the affordance of extraordinary treatment. Absent a constitutional challenge to those requirements or such discretionary overlay, it seems to me to be within the purview of the local board to enforce the requirements upon an exercise of sound discretion while providing an adequate explanation. And, although I acknowledge that the dissenting opinion gives me great pause, my circumspection about whether such an explanation may be provided based on the present record falls short of the wholesale rejection posited by the dissent.   

Saylor's career on the Court has been dotted with similarly measured and often sphinxlike secondary opinions, many of which, like this one, leave complicated questions open for a later day, or leave the proverbial door open for the next litigant to temper an earlier decision.

And although he has long held a reputation as a careful and thoughtful jurist, if sometimes difficult to pin down, his true legacy may be as a similarly thoughtful administrator at a time when the Court needed him the most.  Throughout the early 2010s, numerous Justices were plagued with scandals ranging from engaging in improper campaign activity to the sharing of racist, sexist, and pornographic content with state Attorneys General, to simple internecine feuds, all of which no doubt distracted the Court from its primary functions.  However, after several of the aforementioned Justices were removed, resigned, or retired, Saylor took the helm as Chief Justice and worked hard with the Court in its new complement to create a sense of authentic collegiality and respect.  What's more, after the Court's 2018 decision invalidating the extant Congressional redistricting plan as unconstitutional (among others) prompted certain Republican members of the General Assembly to make encroachments on the Court, Saylor, who was elected as a Republican and who did not join the Court's decision, made no bones about standing up for the co-equality of the judiciary as a branch of government and the fundamental importance of judicial independence to our constitutional republic.

Your author's first legal job out of law school was working for a trial judge who was himself on the cusp of retirement, and, as the day neared, I asked him what he hoped people would say about him years later.  After pausing for a while, and then a while longer, he indicated that he just hoped people would say that he was fair.  In his capacity as a Justice, and as Chief Justice, Saylor can rest assured that he was fair. 

Precedential Opinions

Commonwealth v. Barr, 28 MAL 2021 (Opinion by Baer, J.) (holding that the odor of marijuana alone does not constitute probable cause to search a vehicle)

• See also Concurring Opinion by Saylor, J.

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

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

O'Donnell v. Allegheny Cnt. North Tax Collections Cmte., 8 WAP 2021 (Opinion by Wecht, J.) (holding that a whistleblower's portion of a qui tam settlement is state-taxable income)

• See also Dissenting Opinion by Todd, J.

In the Interest of Y.W.-B., 1 EAP 2021 (Opinion by Donohue, J.) (holding that an anonymous report that a parent was homeless and had failed to feed her child for a single eight-hour period did not constitute probable cause for a child-welfare agency to conduct a nonconsensual entry into her home)

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

• See also Dissenting Opinion by Mundy, J.

In re Adoption of L.A.K., 14 WAP 2021 (Opinion by Donohue, J.) (holding that the Superior Court misapplied the applicable standard of review in reversing a trial court's determination that a parent's alcoholism did not warrant termination of his parental rights)

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

Corman v. Beam, 83 MAP 2021 (Opinion by Wecht, J.) (holding that the Secretary of Health lacked the authority to impose a masking mandate in Pennsylvania schools)

Metal Green, Inc. v. City of Phila., 9 EAP 2021 (providing certain governing-law and standard-of-review principles for zoning use variances)

• Opinion Announcing the Judgment of the Court by Todd, J.

• Concurring Opinion by Saylor, J.

• Concurring and Dissenting Opinion by Mundy, J.

• Dissenting Opinion by Wecht, J.

Lagerman v. Zepp, 21 MAP 2021 (Opinion by Wecht, J.) (reaffirming that a plaintiff in a medical malpractice action may elicit both direct evidence and circumstantial, including res ipsa loquitur, evidence)

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

• See also Dissenting Opinion by Saylor, J. 

Commonwealth v. Santana, 23 MAP 2021 (Opinion by Wecht, J.) (holding that an earlier decision invalidating an earlier iteration of Pennsylvania's sexual offender registration and notification statute applies with equal force in the context of extrajurisdictional sexual offenses)

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

• See also Dissenting Opinion by Mundy, J.

Mallory v. Norfolk Southern Railway Co., 3 EAP 2021 (Opinion by Baer, C.J.) (holding that a business's registry as a foreign corporation is not sufficient to subject it to general jurisdiction in Pennsylvania courts)

• See also Concurring Opinion by Mundy, J.

Commonwealth v. Green, 6 MAP 2021 (Opinion by Mundy, J.) (holding that a search warrant for all the electronic devices in a defendant's home was supported by probable cause where it was predicated on illegal activity using his internet-protocol address)

• See also Dissenting Opinion by Donohue, J.

• See also Dissenting Opinion by Wecht, J. 

Commonwealth v. McCabe, 50 MAP 2020 (Opinion by Mundy, J.) (holding that problem-solving courts are not governed by the chapter of the Rules of Criminal Procedure pertaining to accelerated rehabilitative dispositions)

• See also Concurring Opinion by Wecht, J. 

Commonwealth v. Talley, 14 MAP 2021 (Opinion by Wecht, J.) (clarifying the standard of proof at a pretrial bail hearing and holding that the best-evidence rule does not preclude the introduction of screenshots of text messages)

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

• See also Concurring Opinion by Mundy, J.

Whalen v. PSERS, 33 MAP 2021 (Opinion by Wecht, J.) (holding that a school principal's age-discrimination settlement was not compensation within the meaning of the Retirement Code)

• See also Concurring Opinion by Dougherty, J.

Albert v. Sheeley's Drug Store, 5 MAP 2021 (Opinion by Wecht, J.) (holding that an overdose victim's wrongful death action against a pharmacy was barred by the in pari delicto doctrine)

• See also Dissenting Opinion by Dougherty, J. 

Commonwealth v. Young, 19 MAP 2021 (Opinion by Dougherty, J.) (reiterating that the filing of a single notice of appeal with multiple docket numbers is improper, but remanding for consideration of whether the defect may be curable)

• See also Concurring Opinion by Mundy, J.

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

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

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

Energy Transfer v. Friedman, 24 MAP 2021 (Opinion by Donohue, J.) (holding that the Public Utility Commission has exclusive jurisdiction to review requests for documents of a public utility that it has designated as confidential security information)

• See also Dissenting Opinion by Wecht, J.

Bisher v. Lehigh Valley Health Network, Inc., 22 MAP 2021 (Opinion by Donohue, J.) (reversing the Superior Court's decision that several procedural defects in a wrongful death and survival action deprived the trial court of subject matter jurisdiction and/or warranted dismissal of the action)

General Motors Corp. v. Commonwealth, 12 MAP 2020 (Opinion by Baer, C.J.) (holding that an earlier decision holding that the caps on the state corporate net-loss carryover deduction were unconstitutional required invalidation of the deduction in its entirety, but holding that the appellant was entitled to non-capped deductions pursuant to certain federal constitutional decisions)

• See also Dissenting Opinion by Saylor, J.

• See also Dissenting Opinion by Wecht, J. 

Steltz v. Meyers, 10 EAP 2021 (Opinion by Mundy, J.) (clarifying the governing law for motions for mistrial)

• See also Dissenting Opinion by Wecht, J.

Eastern Univ. Academy Charter Sch. v. Sch. Dist. of Phila., 16 EAP 2021 (Opinion by Todd, J.) (holding that the Charter School Law imposes no mandatory deadline for charter renewal)

• See also Concurring Opinion by Dougherty, J.

• See also Concurring Opinion by Wecht, J.

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

Lorino v. WCAB, 8 EAP 2021 (Opinion by Todd, J.) (holding that the Workers' Compensation Act does not preclude an award of attorney's fees to a claimant where an employer had a reasonable basis for seeking a termination of benefits)

Keystone Rx LLC v. Bureau of Workers' Comp. Fee Rev. Hrg. Ofc., 27 EAP 2020 (Opinion by Baer, C.J.) (holding that non-treating medical providers need not be given notice and an opportunity to intervene in utilization review matters)

• See also Concurring Opinion by Wecht, J.

Commonwealth v. DiStefano, 7 WAP 2021 (Opinion by Baer, C.J.) (holding the Superior Court misapplied the applicable standard of review in reversing a trial court's determination that a defendant's conduct caused the victim's death in a non-homicide case)

In the Interest of J.J.M., 23 MAP 2020 (Opinion by Dougherty, J.) (holding that criminal prohibition of non-intentional threats is not barred by the First Amendment, but holding that the subject "threats" were not true threats)

• See also Concurring Opinion by Todd, J.

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

League of Women Voters v. Degraffenreid, 4 MAP 2021 (Opinion by Todd, J.) (holding that the General Assembly's enactment of a so-called "victim's rights amendment" was unconstitutional because it was actually numerous amendments log-rolled into one) 

• See also Dissenting Opinion by Mundy, J.

Allocatur Grants

Commonwealth v. Wallace, 183 MAL 2021 (granting review to determine whether global-positioning-system records are hearsay)

• See also Superior Court Opinion by Lazarus, J.

Commonwealth v. Smith, 410 MAL 2021 (granting review to determine whether the introduction of a co-defendant's statement violated the defendant's right to confront the witnesses against her)

• See also Superior Court Opinion by Kunselman, J.