July 2019 Docket Review

This month, the Court issued 15 precedential opinions (linked below) and 6 orders granting allocatur.

On the opinion side, although, as I mentioned last month, the “new” Court has been somewhat ambivalent in its attitudes toward the judicial role, with some Justices preferring the prudence (or, depending on how you view it, trepidity) of judicial minimalism and broad deference to the legislature, lower courts, and administrative agencies, and others preferring the boldness (or, depending on how you view it, folly) of a more powerful interpretive and adjudicative role, those in the latter camp are making significant strides. This is particularly so in cases involving fairly dry subject matter.

For example, in General Motors, LLC, the Court is ostensibly discussing issues regarding auto manufacturer's reimbursements to auto dealers for warranty repairs. If my previous sentence did not put you to sleep, however, you'll be glad to know that the major feature of the opinion is its discussion of deference to agencies. Indeed, the opinion, joined by 5 other Justices, suggests several bases for abandoning deference – (1) where an agency's interpretation is not “longstanding”; (2) where an agency's interpretation does not derive from its expertise; (3) arguably, agency bias; and (4) where the deference is outweighed by the Court's own independent analysis – and Justice Mundy, in dissent, advocates a reconsideration of deference to administrative agencies writ large.

Similarly, in Pa. Restaurant and Lodging Assn., the Court's decision hinges on the not particularly riveting question of whether the two local ordinances at issue – a sick leave ordinance and a disaster preparedness ordinance – are not subject to state preemption of local regulation of businesses because they are “expressly” authorized by other state law. More (judicially) conservative Justices would likely feel compelled to find some guiding principle – such as a clear statement rule requiring that a state statute specifically indicate that localities may, notwithstanding the preemption provisions, enact measures governing a particular subject matter – and leave it to lower courts to apply it. Yet, the Court here evidences that it is comfortable exercising its judgment in matters of degree, not just in this case, but the many it has hereby invited.

Whether the complexity and relative dryness of cases in which the Court is assuming an emboldened interpretive role is a coincidence remains to be seen, but it is not difficult to imagine that the factual and legal context makes the migration to a strong judicial role less alarming.

The Court's bolder approach may derive from any number of views: skepticism as to the degree to which legislatures, lower courts, and/or administrative agencies are truly deliberative, or, worse, concern that they have been politically or industry- captured; and the (remember, elected) Court's view as to its own political mandate spring to mind. And while avoiding capture in favor of deliberation may be a laudable goal, the approach does come with its own dangers, principally that the Court may find itself not only in over its head (adjudicating, for example, complex issues of environmental policy), but also underwater in a deluge of cases its approach invites. It will be interesting to see how the Court evolves and balances these concerns (or does not) over the next several years.

On the allocatur side, the Court's order in Stahley, to consider whether its decision in Batts is retroactive, is particularly noteworthy. Years ago, Pennsylvania led the country in the number of juvenile offenders serving mandatory sentences of life imprisonment without the possibility of parole, and, after the United States Supreme Court issued its decisions in Miller v. Alabama, 567 U.S. 460 (2012) (holding that juvenile offenders are entitled to individualized sentencing determinations based on myriad factors and that the application of such mandatory sentences constituted cruel and unusual punishment), and Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct. 718 (2016) (holding Miller applied retroactively), all of those offenders became eligible for individualized resentencing. Yet, from Montgomery to the Court's decision in Batts, dozens were resentenced to disparate terms ranging from time-served to 42.5 years to life imprisonment, without certain necessary guidance as to how those re-sentencings were to proceed. (Additionally, as a side note, many of those offenders were plagued by ineffective assistance of counsel that likely led to higher-than-otherwise-likely minimum sentences.) Batts provided that guidance, but was cold comfort for those already resentenced to lengthy prison terms. If Stahley is successful and the Court deems Batts to be retroactive, it seems likely that each of those petitioners will be entitled to a new, re-re-sentencing hearing and, potentially, significantly lower minimum sentences.

Precedential Opinions

• General Motors, LLC v. Bureau of Profl. & Occupational Affairs, J-108-2019 (Majority Opinion by Saylor, C.J.) (holding that auto manufacturers may condition their provision of more favorable reimbursements for auto-dealer-performed warranty repairs no the dealers' waiver of statutory rights to other reimbursements under the Board of Vehicles Act, and interpreting a provision of that Act as providing that auto manufacturers may not impose surcharges on dealers who have exercised their right to certain reimbursement rates for parts, or labor, but not both).

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

• In re: Appeal of the Board of Commissioners of Cheltenham Twp., J-89-2018 (Majority Opinion by Baer, J.) (holding that a provision of the Municipalities Planning Code forbidding retroactive application of new zoning laws to then-pending land-development applications also applies to ancillary zoning applications).

  • See also Dissenting Opinion by Wecht, J.;

• S & H Transp., Inc. v. City of York, J-99-2018 (Majority Opinion by Todd, J.) (holding that a freight broker's receipts passed onto freight carriers are not subject to the City of York's Business Privilege and Mercantile Tax).

  • See also Concurring Opinion by Saylor, C.J.;

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

  • See also Dissenting Opinion by Dougherty, J.

• Commonwealth v. Cousins, J-9-2019 (Majority Opinion by Todd, J.) (interpreting repeat-drug-offender sentencing provisions apply to virtually all drug offenses).

• Menkowitz v. Peerless Pubs., Inc., J-13-2019 (Majority Opinion by Donohue, J.) (holding the Superior Court failed to apply the appropriate standard of review and appropriate causation analysis in a defamation action).

• Commonwealth v. Bell, J-103-2018 (Majority Opinion by Dougherty, J.) (holding statute permitting the Commonwealth to introduce evidence of an alleged DUI offender's failure to submit to chemical testing for alcohol does not violate the federal or state constitutional prohibitions on unreasonable searches and seizures)

  • See also Concurring Opinion by Mundy, J.;

  • See also Dissenting Opinion by Wecht, J.

• Navarro v. Pa. State Police, J-38-2019 (Majority Opinion by Dougherty, J.) (holding that the denial of applications for return of firearms pursuant to federal statute prohibiting persons with certain convictions from possessing firearms which have moved in interstate or foreign commerce must be supported by evidence that the subject firearm moved in interstate or foreign commerce).

• In re: Petition of Adams, 9 MAP 2018 (Majority Opinion by Mundy, J.) (holding that landowners seeking to open a private road pursuant to the Private Road Act must establish necessity of opening the road under the current, rather than a future or proposed, use of the property).

  • See also Concurring Opinion by Wecht, J.

• Exeter Twp. v. Pa. Lab. Relations Bd., J-4A&B-2019 (Majority Opinion by Mundy, J.) (holding that the a zoning officer is not ipso facto a management-level employee for purposes of the Public Employee Relations Act).

• In re: Return of Seized Property of Lackawanna Cnty., 93 MM 2018 (Majority Opinion by Dougherty, J.) (holding that a supervising judge of a statewide investigating grand juries is authorized to issue related search warrants throughout the grand jury's jurisdiction and to adjudicate motions for return of property seized pursuant to such warrants).

  • See also Dissenting Opinion by Donohue, J.

• Commonwealth v. King, 13 EAP 2018 (Majority Opinion by Baer, J.) (affirming a PCRA court's order forbidding the Commonwealth from privately interviewing the petitioner's counsel, citing the court's discretion in discovery matters and certain case-specific facts and arguments).

  • See also Concurring Opinion by Donohue, J.;

  • See also Concurring Opinion by Mundy, J.,;

  • See also Dissenting Opinion by Dougherty, J.

• DeForte v. Borough of Worthington, 24 WAP 2018 (Majority Opinion by Saylor, C.J.) (answering Third Circuit's certified questions by determing that whether a police department is subject to the civil service protections of the Borough Code, applicable to departments of three or greater, or the Tenure Act, applicable to departments of two or fewer, is to be determined by the number of officers with “normal working hours”).

• Commonwealth v. Jones, 15 WAP 2018 (Majority Opinion by Saylor, C.J.) (holding that a petitioner's trial counsel's failure to seek and obtain an alibi instruction did not cause prejudice, arguably limiting earlier decisions emphasizing a near per se rule that the failure to seek and obtain a warranted alibi instruction does cause prejudice).

  • See alsoConcurring Opinion by Todd, J.

• Millcreek Twp. Sch. Dist. v. Millcreek Twp. Educational Support Personnel Assn., J-30-2019 (Majority Opinion by Donohue, J.) (holding that a grievance arbitration award satisfied the “essence test” in that it derived from the subject collective bargaining agreement, the arbitrator's interpretation was rational, and the award did not violate a dominant public policy).

  • See also Concurring Opinion by Todd, J.

• Pa. Restaurant and Lodging Assn. v. City of Pittsburgh, J 72A-H-2018 (Majority Opinion by Wecht, J.) (holding that a Pittsburgh statute requiring employers to provide employees sick leave, which would otherwise have been preempted by a state statute forbidding localities from regulating business absent “express” authorization, was authorized by the Disease Prevention and Control Law of 1955, but that another Pittsburgh Statute, requiring building owners to, inter alia, conduct disaster preparedness education, was preempted by the state statute notwithstanding the Emergency Management Services Code).

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

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

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

Allocatur Grants

• Renner v. Court of Common Pleas of Lehigh Cnty., 851 MAL 2018 (granting review to consider whether the Pennsylvania Human Relations Law applies to the Unified Judicial System and its employees, and, if so, whether such application violates the separation of powers even if the Pennsylvania Human Relations Commission does not investigate or adjudicate complaints)

• Northern Berks Regional Police Commn. v. Berks Cnty. Fraternal Order of Police, 797 MAL 2018 (granting review to consider whether the lower court improperly relied on speculation and to consider broadening the scope of review for police and firefighter collective bargaining arbitrations)

• Commonwealth v. Stahley, 39 MAL 2019 (granting review to consider whether the Court's decision in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017), governing re-sentencing of juvenile offenders previously unconstitutionally sentenced to life imprisonment, applies retroactively)

• In re: Consolidated Appeals of Chester-Upland School District, et al., 54-56 MAL 2019 (granting review of whether a taxing authority may consider income derived from easements in favor of billboard companies in assessing a property's value despite a statutory exclusion for “signs and sign structures”)

• Pittsburgh Logistics Systems, Inc., v. Beemac Trucking, LLC, et al., 47 WAL 2019 (granting review of whether no-hire provisions between business entities are enforceable)

• Commonwealth v. Nevels, 49 WAL 2019 (granting review of whether a person may be convicted for retaliation against a “witness, victim, or a party in a civil matter,” where he retaliated against a former or future witness in a criminal matter).

Disclaimer: The information provided on this blog is for informational and research purposes only and should not be construed as establishing a legal representational relationship between you and its author, or Woods Law Offices PLLC, in any way. If you have a legal problem, you should contact an attorney to discuss establishing such a relationship and obtaining such advice.

June 2019 Docket Review

This month, the Court issued 7 precedential opinions (linked below) and 8 orders granting allocatur.

On the opinion side, a few insights. Now two years into its current composition, the Court is somewhat ambivalent in its orientation toward precedent. A narrow, but fairly consistent majority of the Court (although sometimes a different majority, depending on the issue) appears to favor a conservative, incremental approach to glossing upon or re-evaluating the Court's prior decisions, to the dismay of at least a few Justices who would prefer the Court take a more liberal, bolder interpretive approach. The Court's decision in Working Families Party , which, in my view, actually restricts its broad construction of the Free and Equal Elections Clause of the Pennsylvania Constitution as announced in last year's redistricting case, is probably the best example of this phenomenon, and its decision in Mitchell, which declines to expand earlier doctrine preventing evidence of informed consent in personal injury actions, is another. It's a meta-principle to keep an eye on, both as newer Justices further develop their jurisprudence of precedent, and as more experienced Justices react, and, in the longer term, retire.

Second, the Court this month had some difficulty reviewing the issues it wants to review: in HIKO, the court granted review of an Excessive Fines issue only to find it waived for lack of preservation, and in Shaffer, it granted review of an abandonment-of-privacy-interest issue only to resolve the case on the basis of private-search doctrine. Although the proverbial switcheroos could be attributable to something as simple as the Court missing waiver in its initial review of the case, it could also point to difficulties in building majority expressions of law or judicial preference to provide a gloss on one doctrine over the other.

Either way, and notably, both led to derivative disputes about meta-principles of appellate law: (1) in HIKO, the majority's reliance on waiver doctrine was criticized as outside the scope of the Court's grant of allocatur; and (2) in Shaffer, the majority's reliance on the principle that a court may affirm a lower court on any basis supported by the record was criticized as unfair. These dispositions could appear somewhat contradictory from a litigant's perspective: the majority in HIKO refused to address an issue based on waiver doctrine, which is rooted in the notion that appellate courts should not review claims unanticipated and undeveloped by litigants and trial courts, whereas the majority in Shaffer took great pains to do exactly that.

On the allocatur side, the Court appears increasingly willing to review issues of fairness to civil plaintiffs and criminal defendants. Indeed, 3 of its grants of allocatur involve tort law – Bourgeois, Nicole B., and Harrison – and 4 deal with criminal justice reform: Copenhaver involves arguably overzealous use of force (in the form of arrest); Davis and Lehman involve arguably unfair imposition of costs on typically-already unable-to-pay criminal offenders; and Moore would appear to be signaling an interest in reframing or reconsidering roughly two decades of law that route virtually all post-conviction actions through the time-bar restrictions of the Post Conviction Relief Act.

Precedential Opinions:

• Working Families Party v. Commonwealth, 34 EAP 2017 (Majority Opinion by Mundy, J.) (holding that the “anti-fusion” provisions of the Election Code, which prohibit candidates who have formally sought one political party's nomination from seeking another's, but which allow them to wage write-in campaigns for major party nominations, but not third-party nominations, do not violate the Equal Protection Clause of the United States Constitution, the Free and Equal Elections Clause of the Pennsylvania Constitution, or the Free Speech and Association Clauses of the Pennsylvania Constitution principally because they apply equally to all candidates and are justified by the fact that, absent the provisions, because another provision of the Election Code requires that a single checkbox appear for each candidate on the ballot, the Commonwealth would unable to determine whether a vote for a candidate is in his or her capacity as one party's candidate or the other's, and therefore, unable to determine the parties' support and status as a major or third party in subsequent elections); see also Concurring and Dissenting Opinion by Todd, J.; Concurring and Dissenting Opinion by Wecht, J..

• HIKO Energy v. Pennsylvania Pub. Util. Commn., 39 EAP 2017 (Majority Opinion by Mundy, J.) (holding that civil penalties imposed upon an electricity supplier for intentionally overcharging consumers during the 2014 “polar vortex” were not imposed as punishment for litigating their validity; and that the penalties were supported by substantial evidence); see also Dissenting Opinion by Donohue, J.

• Commonwealth v. Shaffer, 16 WAP 2018 (Majority Opinion by Baer, J.) (holding that a computer owner who furnishes his computer to a third-party repairer, who unilaterally searches the computer and finds child pornography, the repairer's search is a “private search” that does not implicate the Fourth Amendment, and justifies police in conducting a subsequent identical search); see also Concurring and Dissenting Opinion by Wecht, J.; Dissenting Opinion by Saylor, C.J..

• Mitchell v. Shikora, 55 WAP 2017 (Majority Opinion by Todd, J.) (holding that although evidence of a patient's consent to the risks and complications of surgery is irrelevant in a medical negligence action, evidence of the risks themselves is relevant to the standard of care for a procedure and may be admitted in such actions, subject to other applicable evidentiary principles); see also Concurring Opinion by Wecht, J.; Concurring and Dissenting Opinion by Donohue, J..

• Bousamra, v. Excela Health, 5 WAP 2018 (Majority Opinion by Mundy, J.) (holding that the attorney work-product doctrine is not waived by disclosure to third parties unless the work product is disclosed to an adversary or disclosed in a manner which significantly increases the likelihood that it will be transmitted to an adversary); see also Concurring Opinion by Donohue, J.; Concurring Opinion by Wecht, J..

• Commonwealth v. Santiago, 1 EAP 2018 (Majority Opinion by Todd, J.) (holding that a police officer's independent observations of a defendant purged the taint of a subsequent warrantless search of his mobile phone that would otherwise have invalidated a subsequent in-court identification); see also Dissenting Opinion by Wecht, J..

• In re: Estate of Easterday, 15 MAP 2018 (Majority Opinion by Donohue, J.) (holding that the failure to comply with certain procedural rules for establishing grounds for divorce precludes the application of a provision of the Probates, Estates, and Fiduciaries Code that provides that the establishment of grounds for divorce revokes a decedent's designation of a spouse as a life insurance beneficiary; holding that ERISA does not preempt a state law breach of contract claim to recover funds that were paid pursuant to an ERISA-qualified employee benefit plan); see also Concurring and Dissenting Opinion by Wecht, J..

Allocatur Grants:

• Commonwealth v. Moore, 556 EAL 2018 (granting review of construction of petition for writ of habeas corpus as a petition for relief pursuant to the Post Conviction Relief Act)

• Commonwealth v. Weir, 14 WAL 2019 (granting review of whether a claim that the amount of restitution is speculative and unsupported is a nonwaivable challenge to the legality of sentence)

• Bourgeois v. Snow Time, Inc., 769 MAL 2018 (granting review of potential legal and evidentiary errors in a personal injury action).

• Commonwealth v. Copenhaver, 13 MAP 2019 (granting review of whether driving with an expired registration tag constitutes a “breach of the peace” and therefore permits an arrest).

• Commonwealth v. Davis, 52 MAL 2019 & Commonwealth v. Lehman, 69 MAL 2019 (granting review of whether the costs of sentencing are “costs of prosecution and trial” that may be imposed upon convicted offenders).

• Nicole B. v. School Dist. of Phila., 13 EAL 2019 (granting review of whether a statute providing that minority tolls statutes of limitations and/or a statute permitting equitable tolling of claims pursuant to the Pennsylvania Human Relations Act apply to minors' complaints to the Pennsylvania Human Relations Commission)

• Harrison v. Health Network Laboratories, 24 MAL 2019 (granting review of whether considering a whistleblower of violations of the Pennsylvania Human Relations Act must bring any ensuing claim of retaliation for whistleblowing via the Act).

• Gregg v. Ameriprise Financial, Inc., 490 WAL 2018 (granting review of whether the Superior Court too broadly interpreted the “catch-all” provision of the Pennsylvania Unfair Trade Practices and Consumer Protection Law to non-deceptive, non-fraudulent conduct).

Disclaimer: The information provided on this blog is for informational and research purposes only and should not be construed as establishing a legal representational relationship between you and its author, or Woods Law Offices PLLC, in any way. If you have a legal problem, you should contact an attorney to discuss establishing such a relationship and obtaining such advice.

Welcome to SCOPABlog

Hi, everyone! Corrie here.

Some of you know that I spent roughly six years of my career as an attorney for a Justice of the Pennsylvania Supreme Court. It was an honor, not only because I came to love the Court's history and to admire the Court at its best (during my time there, the Court issued decisions revolutionizing several areas of law, in my view, for the better), but also because I had the privilege to spend my days working on difficult, important, legal questions for judges who were dedicated to deciding them deliberately, fairly, and honestly.

That's why when I left my service with the Court to start Woods Law Offices, and consequently spent less time pondering thorny issues of constitutional jurisprudence and more time pondering billing, I couldn't help but miss the work. Also, I was shocked to see that there is, at present, no consistently updated blog covering the Court and its decisions.

That's why I'm proud to announce the launch of SCOPABlog, dedicated to covering the Court and its caseload. In addition to basic coverage of the Court's docket, I'll be sharing features authored by myself and guests on particularly interesting cases before the Court.

As we continue developing the blog, I look forward to hearing your comments and suggestions, and, hopefully, to your contributions. In the meantime, please enjoy.

Yours,

C