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Welcome to
SCOPABlog

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

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

Corrie Woods Corrie Woods

December 2020 Docket Review

This month, the Court issued 12 precedential opinions and 7 orders granting allocatur.

On the opinion side, perhaps the most widely applicable case is Alexander, which holds that all warrantless automobile searches in Pennsylvania must be supported by both probable cause and exigent circumstances. The Court's decision recognizes the limitations of an earlier case by a then-very politically conservative court which purported to adopt the federal rule, which allows searches based on probable cause alone, despite years of Pennsylvania precedent for the rule requiring both. It's not only excellently written by Justice Donohue, but also highlights an important principle in Pennsylvania constitutional jurisprudence: rights against unreasonable searches and seizures exist for privacy's sake, not just as a deterrent against police misconduct. It also serves as a reminder that federalism is not always politically conservative, and that the judicial activists are not always the political liberals.

Also interesting is Justice Wecht's concurrence in Peck, which gently expresses some degree of frustration with the overuse of the term “absurd,” this time in the context of statutory construction. Justice Wecht cites to no other than the late Justice Antonin Scalia and Professor Bryan Garner for the proposition that the canon of construction against absurdity is overplayed, and should be circumscribed to situations that are actually absurd, not just contrary to how the litigator would prefer them to be.

Two thoughts: first, given that it is much more difficult to explain why a particular interpretation or result is merely bad analytically, or contrary to legislative intent and purpose, it is a common argument of last resort (often near a filing deadline) to simply shout that it is absurd and move on to the next issue. Keen advocates should take note and pull back on this particular epithet.

On the allocatur side, perhaps the entire criminal appellate/post-conviction defense bar will be keeping watch for Bradley, which seems to signal that the Court may be willing to undo decades of precedent artificially making it functionally impossible to challenge the effectiveness of one's post-conviction counsel by creating a mechanism to do so. The decisions setting up the proverbial roadblocks came initially at a time when the Court, statutorily obliged to review all capital PCRA direct appeals, were essentially inundated with them to the point that its law-developing function was undermined. But they were never particularly persuasive in their reasoning, and this Court has been revisiting them and hewing closer to the PCRA's text.

Precedential Opinions

Allocatur Grants

  • Commonwealth v. Jordan, 269 WAL 2020 (granting review to consider the validity of inconsistent verdicts in consolidated jury/bench trials)

  • Mohn v. Bucks County Republican Comm., 156 MAL 2020 (granting review to consider the justiciability of certain intra-political-party disputes)

  • Commonwealth v. Dixon, 207 WAL 2020 (granting review to consider issues regarding special interrogatories regarding the grading of a count of witness intimidation)

  • Commonwealth v. Bradley, 230 EAL 2020 (granting review to consider whether to adopt a more meaningful mechanism for the vindication of the right to effective PCRA counsel)

  • Commonwealth v. Kale, 302-303 MAL 2020 (granting review to consider whether the Pennsylvania State Police have a right to be served with any petition seeking to declare that an individual is not subject to sexual offender registration requirements)

  • Commonwealth v. Purnell, 351 MAL 2020 (granting review to consider whether and under what circumstances a child victim may utilize an emotional support pet while testifying)

  • In re: Trust of Ashton, 203 EAL 2020 (granting review to consider whether a beneficiary has automatic standing to challenge all of a trustee's breaches of fiduciary duties toward the trust or must demonstrate standing to challenge the trustee's particular breaches)

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Corrie Woods Corrie Woods

November 2020 Docket Review

This month, the Court issued 5 precedential opinions and 7 orders granting allocatur.

On the opinion side, I would be remiss if I did not acknowledge the Court's difficult and expeditious work to provide clarity to Pennsylvania election law amidst circumstances that might otherwise have sparked a constitutional crisis. The Court's decisions in In re: Canvassing Observation, In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election assiduously tied up loose ends from last month's decision in Boockvar, not only in time for then-pending challenges in state court, but also for those in federal court, thereby enabling federal judges to avoid the highly speculative practice of predicting how it would interpret state law. And, in my humble opinion, the Court's decisions are largely correct: pursuant to longstanding Pennsylvania jurisprudence, our Election Code's procedural requirements to vote are construed strictly (narrowly) because it is better to err on the side of enfranchisement than disenfranchisement. Thus, courts must are obliged to follow the letter of the law, but obliged not to gloss in a way that disenfranchises. This basic principle animates most of the Court's jurisprudence in this area, and leads fairly to its decisions this election season. Where a requirement is clear — such as the need to “clothe” this year's infamous “naked” ballots, the Court has required observance; otherwise, the Court construes the ambiguity in favor of counting votes. It's also important to point out that, contrary to the indications of certain commanders-in-chief who will remain unnamed, the Court's decisions have been far from liberal wish-lists granted from on high. Boockvar rejected several Democratic claims seeking to minimize the byzantine procedural requirements of Pennsylvania's mail-in ballot scheme, and this month, the Court declined even to address an appeal brought by Democrats involving additional requirements of the framework and late-arriving ballots.

All that said, Republicans, and particularly Republican-appointed Chief Justice Saylor, have a fair point that the Court has acted with some degree of zeal to get these issues before it and speak to them, including by addressing claims that may well be moot (particularly if the General Assembly is inclined to undermine mail-in voting in the future) or potentially even unnecessary to address. Whether this sort of approach is appropriate in the abstract, however, will be one for academicians: the Court has clearly come down against business-as-usual and in favor of intervention given the practicalities at play.

Also notable this month is the Court's decision in Adoption of K.M.G., which reiterates (several prior reiterations) of the Court's anomalous requirement that appellate courts review sua sponte certain facets of the appointment of counsel for children in termination-of-parental rights cases. Although the Court has essentially attempted to thread a needle regarding what such review does and does not require, the practical effect is that trial judges wishing are likely to appoint counsel for children as a matter of course to avoid reversal. Studious appellate practitioners may wish to review this line of cases and make the case for newly-minted structural errors, a term that was until recently a shibboleth in Pennsylvania.

On the allocatur side, in Apartment Assn. of Metropolitan Pittsburgh, the Court will revisit Pennsylvania's state-preemption of local ordinances as applied to a housing nondiscrimination ordinance, an issue it was fairly fractured on the last time it addressed it in a 2019 case involving local employment- and emergency-training- related ordinances, and, in Kennet Consol. Sch. Dist, the Court will address several challenges to local real estate taxes as violative of the state constitution's Uniformity Clause, which often leads to similar interpretive fractures among the Justices. It will be interesting to see what, if any, clarity derives from those decisions. And finally, in Brown, the Court will address a trial court's inherent authority to correct mistakes in its records and orders (forever and regardless of appeal) in a case where a trial court corrected the “mistake” of a prior jurist granting relief. The Court's decisions mapping out this power, too, have been somewhat sprawling, and the Court may be inclined to limit it here.

Elections Cases

Note: The Court has kindly published a page of elections cases of public interest throughout Pennsylvania appellate and trial courts, which can be found here.

Precedential Opinions

Allocatur Grants

  • City of Johnstown v. WCAB (Sevanick), 186 WAL 2020 (granting review to consider whether the Commonwealth Court contradicted its own precedent in holding that a claimant seeking occupational disease benefits must satisfy the manifestation rule

  • Commonwealth v. Satterfield, 439 MAL 2020 (granting review to consider whether the offense of accidents involving death or personal injury contemplates a single sentence for each accident or permits a single sentence for each death or injury)

  • Pinkins v. Pa. Bd. of Prob. and Parole, 194 WAL 2020 (granting review to review the Parole Board's upward deviation from presumptive recommitment ranges and denial of credit for time served at liberty on parole for record support)

  • Apartment Assn. of Metropolitan Pittsburgh, Inc. v. City of Pittsburgh, 144 WAL 2020 (granting review of Commonwealth Court's decision invalidating a local housing nondiscrimination ordinance as preempted)

  • Grix v. Progressive Specialty Ins. Co., 76 MAL 2020 (granting review to consider whether insured's daughter was a household resident and designated insured at the time of a motor vehicle accident such that she was entitled to stacking of benefits)

  • Kennett Consol. Sch. Dist. v. Chester Cnty. Bd. of Assessment Appeals, 150 MAL 2020 (granting review to consider several Uniformity Clause challenges to local real estate taxes)

  • Commonwealth v. Brown, 101 WAL 2020 (granting review to consider whether the trial court's authority to correct patent and obvious mistakes in its errors extends to reconsideration of the timeliness of a PCRA petition)

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Corrie Woods Corrie Woods

October 2020 Docket Review

This month, the Court issued 13 precedential opinions (linked below) and 2 orders granting allocatur.

On the opinion side, the Court's decisions in Small and Chmiel are boons for criminal defense attorneys. In Small, the Court abrogated the presumption that petitioners for relief pursuant to the Post Conviction Relief Act are aware of matters of public record — as in all matters of public record — for purposes of the exception to the time-bar provisions of the PCRA for claims predicated on newly discovered facts. The presumption was never factually justified — the notion that the average prisoner is combing through the Federal Register is facially absurd — but was viewed as legally justified because it weeded out frivolous claims. In 2017, the Court abrogated the presumption as it pertained to pro se petitioners (which is to say most petitioners), and, in Small, it abrogated it entirely. I suppose the notion that your average criminal defense attorney is combing through the Federal Register is a bit silly as well).

In Chmiel, the Court waded into the emerging upheaval in the forensic sciences, addressing a challenge to the admissibility of microscopic hair examination. Although it rejected a Frye challenge in dicta on the ground that the practice is not novel, it cited several publications that have issued broadsides against existing forensic practices as, in essence, unscientific and unreliable, emphatically admonished forensic scientists not to “overclaim” that, for example, trace evidence “matches” other trace evidence before disposing of the case on prejudice grounds. Although Chmiel concerned microscopic hair analysis, it provides a pathway for criminal practitioners to challenge myriad forensic disciplines: fiber analysis, firearms and toolmark examination, and fingerprint evidence just to name a few.

Finally, for an interesting step into semantics, in Chester-Upland Sch. Dist., Chief Justice Saylor does his best to explain that even though the General Assembly intended that localities not tax billboards, it nevertheless intended that localities tax billboard-caused property value. If anyone can thread that needle, it's the Chief Justice, but reasonable minds may disagree as to whether he got there.

Precedential Opinions

  • Commonwealth v. Jones, 24 WAP 2019 (Opinion by Mundy, J.) (providing guidance on when officer testimony concerning child responses to sexual abuse is lay and opinion testimony and addressing related legisprudential issues)

  • In re: November 3, 2020 General Election, 149 MM 2020 (Opinion by Todd, J.) (holding that the Election Code neither authorizes nor requires county election boards to reject voted absentee or mail-in ballots during pre-canvassing or canvassing based on alleged or percieved signature variances)

  • Commonwealth v. Katona, 1 WAP 2019 (Opinion by Dougherty, J.) (holding evidence obtained from potential Wiretap Act violation was admissible under Pennsylvania's independent source doctrine)

  • Commonwealth v. Cox, 783 CAP (Opinion by Wecht, J.) (vacating intellectually disabled defendant's death sentence as unsupported by appropriate analysis of whether his intellectual disability precluded his execution and remanding for further proceedings)

  • Hammons v. Ethicon, Inc., 7 EAP 2019 (Opinion by Baer, J.) (applying new federal constitutional rules to find personal jurisdiction where foreign plaintiffs brought a products liability action concerning products partially manufactured in Pennsylvania against foreign defendants)

  • Commonwealth v. Chmiel, 780 CAP (Opinion by Saylor, C.J.) (affirming post-conviction court's rejection of certain challenges to microscopic hair analysis)

  • Commonwealth v. Weir, 28 WAP 2019 (Opinion by Donohue, J.) (holding a challenge to the amount of restitution implicates the discretionary aspects, rather than legality, of a sentence and is thus subject to issue-preservation requirements)

  • Commonwealth v. Small, 8 EAP 2019 (Opinion by Wecht, J.) (abrogating the presumption that petitioners pursuant to the Post Conviction Relief Act know matters contained in public records)

  • Commonwealth v. Johnson, 18 EAP 2019 (Opinion by Saylor, C.J.) (explaining intersection of deductions from inmate accounts and procedural due process)

  • Sivick v. State Ethics Commn., 62 MAP 2019 (Opinion by Wecht, J.) (holding that a township supervisor's ministerial approval of Township-paid wages to his son did not violate the Public Official and Employee Ethics Act)

  • Seda-Cog Joint Rail Auth. v. Carload Express, Inc., 12 MAP 2019 (Opinion by Donohue, J.) (holding that the Pennsylvania Municipality Authorities Act embraces common law quorum and majority vote requirements)

  • In re: Consolidated Appeals of Chester-Upland Sch. Dist., 55 MAP 2019 et. al (Opinion by Saylor, C.J.) (holding that a property's additional value due to the presence of a billboard may be included in a property tax assessment notwithstanding the billboard exclusion to the Consolidated County Assessment Law because the inclusion of that additional value does not assess the billboard itself as real property)

  • Fouse, et al. v. Saratoga Partners, L.P., 67 MAP 2019 (Opinion by Baer, J.) (holding that statutes permitting tax-delinquent landowners in Philadelphia and Allegheny County to redeem tax-sold property within nine months of sale but not permitting such landowners in other counties does not violate the constitutional right to equal protection of the laws because the statutes were rationally related to the legitimate governmental purpose of expediting the collection of delinquent taxes, in part because the distinction was myopic, given that the law governing the former counties gave greater post-tax-sale protections and the law governing the latter gave greater pre-tax-sale protections, and there were appropriate distinctions in tax collection in urban versus rural counties)

Allocatur Grants

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Corrie Woods Corrie Woods

September 2020 Docket Review

This month, the Court issued 4 precedential opinions (linked below) and 6 orders granting allocatur.

On the opinion side, two big elections cases this month. In Pennsylvania Democratic Party,the Court faced several questions concerning the Commonwealth's new no-excuse mail-in (or hand-in) voting regime. First, on the issue of whether counties may use absentee ballot "drop boxes," the court found that the election provisions directing voters to return ballots to their "county board of election" was ambiguous as to whether that meant the principal office of the board or, more generally, *to* them. The Court resolved the ambiguity noting the fundamental nature of the right to vote and the strong policy goal and legislative intent in creating no-excuse mail-in voting of encouraging participation. counseled toward the latter interpretation On this issue, Chief Justice Saylor, joined by Justice Mundy, dissented, reasoning that drop boxes undermined the General Assembly's clear preference to avoid third-party handling of votes. Next, the court extended the mail-in ballot deadline by three days, essentially reasoning that COVID-19 and concomitant mail delays constitute a natural disaster implicating other provisions of the code permitting natural-disaster-based diversions from otherwise-strict election provisions. Justice Donohue, joined by Chief Justice Saylor and Justice Mundy, dissented on this point, noting the holding undermined the legislative intent that the election conclude at 8 p.m. on Election Night. Finally, the court rejected efforts to require that voters who submit defective ballots get notice and an opportunity to cure the defects, to require that elections officials "clothe and count" so-called "naked ballots," or ballots that do not satisfy security-envelope requirements in the mail-in voting law, and to permit out-of-county poll watchers, noting that each was a regulatory matter within the General Assembly's province as the legislature.

In Scroggin, the Court held that, because the initial Green Party nominee for president filed only a faxed and incomplete copy of her candidate's affidavit, as opposed to the actual affidavit, and never actually sent the actual affidavit, she was never a duly nominated candidate, and so the ensuing efforts to substitute the new Green Party nominee, Howie Hawkins, were essentially moot. Chief Justice Saylor, joined by Chief Justice Mundy, made the case that the General Assembly previously eliminated statutory language allowing for challenges on the basis of candidate affidavits (and that he'd consider the issue in the future) and, with it, court discretion to allow candidates to cure problems with affidavits. The Chief suggested that a remand to the Commonwealth Court to consider whether to allow the candidate to file the actual affidavit would thus be appropriate.

On the allocatur side, the Court in Leadbitter will address an order requiring the disclosure of medical records from the files of a credentialing committee for compliance with federal and state medical records laws, and, in Cobbs, will address the validity of former juvenile lifers' convictions for assault by a life prisoner. The former case could conceivably affect every plaintiff who files a medical malpractice action thereafter; the latter, a considerably less numerous universe of whatever number of Pennsylvania's roughly 500 juvenile lifers who happened to be charged, tried, and convicted of that offense. That said, former juvenile lifers already face steep sentences that may well result in their dying in prison, and the offense of assault by a life prisoner carries a shockingly high and presumably consecutive sentence equivalent to that of a conviction for second-degree murder. In other words, a former juvenile lifer could convicted of the offense could face another term of up to life imprisonment. Thus, although the case may effect very few, it may nevertheless permit those few to someday see the light of day.

Precedential Opinions

  • Commonwealth v. Hill, 36 WAP 2019 (Opinion by Baer, J.) (holding that a claim that multiple convictions for DUI offenses arising out of the same act violates the constitutional prohibition on double jeopardy does not itself implicate the legality of sentencing and, thus, is waivable, whereas a challenge to the sentence itself as violative of double jeopardy does implicate the legality of sentencing and, thus is nonwaivable)

  • In re: Nomination Papers of Scroggin, 55 MAP 2020 (Opinion by Wecht, J.) (holding that Green-Party candidate Elizabeth Scroggin's failure to file a candidate's affidavit was a fatal defect to her nomination as a candidate for president, and, thus, precluded substitution of Howie Hawkins as the nominee)

  • Pa. Democratic Party v. Bockvar, 133 MM 2020 (Opinion by Baer, J.) (holding that no-excuse mail-in votes may be returned to drop boxes, imposing a three-day extension of time for receipt of mail-in votes, and rejecting attempts to require local elections officials to provide mail-in voters who return defective ballots notice and an opportunity to cure the defects, to require them to “clothe and count” so-called “naked” ballots that do not meet certain security standards, and to allow out-of-county poll watchers)

  • Nicole B. v. Sch. Dist. of Phila., 16 EAP 2019 (Opinion by Todd, J.) (holding that the equitable tolling principles of the Pennsylvania Human Relations Act apply where a minor's parents fail to file an administrative complaint prior to the minor's majority)

Allocatur Grants

  • In re: Petition for Formation of Independent School District, 224 & 230 MAL 2020 (granting review to consider the Commonwealth Court's review of the Secretary of Education's review of the educational merits of a proposed transfer of geographical area between school districts where the Secretary determined the educational merits of the transfer were outweighed by the transfer's financial impacts)

  • K.N.B. v. M.D., 64 WAL 2020 (granting review to consider whether actions under the Protection of Victims of Sexual Violence or Intimidation Act are subject to a six-year statute of limitation and the quantum of evidence necessary to support a protective order thereunder)

  • Commonwealth v. Cobbs, 165 MAL 2020 (granting review to consider whether juvenile lifer's conviction for assault by a life prisoner is infirm because his life sentence was declared unconstitutional under Miller and he was resentenced to a term of 40 years to life imprisonment)

  • Leadbitter v. Keyston Anesthesia Consultants, Ltd., 86 WAL 2020 (granting review to consider whether disclosure of certain healthcare records violates the Pennsylvania Peer Review Protection Act and/or the Federal Healthcare Quality Improvement Act)

  • Domus, Inc. v. Signature Building Sys. of Pa., LLC, 101 MAL 2020(granting review to determine whether failure to authenticate a foreign judgment pursuant to Pennsylvania's Enforcement of Foreign Judgments Act deprives a trial court of subject matter jurisdiction)

  • Keystone RX, LLC v. Bureau of Workers' Comp. Fee Review Hearing Office (Compservices, Inc.), 93 & 94 EAL 2020 (granting review to review a Commonwealth Court decision granting pharmacies, medical testing facilities, and medical product providers a right to intervene in certain Workers' Compensation fee review determinations)

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Corrie Woods Corrie Woods

August 2020 Docket Review

This month, the Court issued 5 precedential opinions (linked below) and 9 orders granting allocatur.

On the opinion side, there is nothing particularly earth-shattering, but a special complement of the Court in Reid reiterated that a new judicial decision does not, in and of itself, allow similarly situated petitioners to obviate the time-bar provisions of the PCRA. Although the holding is somewhat unremarkable, the opinion contains a series of thoughtful glosses on the exceptions to the time-bar provisions that may be useful to those practicing in PCRA cases in the future. On the allocatur side, the Court granted review in McCabe to consider how certain alternative/treatment courts intersect with decisions forbidding discrimination against indigent defendants, a decision which may end up making it a lot easier for certain classes of defendants to stay in alternative/treatment courts. And in Rawls, Johnson, and Dunkins, the court, not shy to step into controversies, granted review ostensibly to consider augmenting or regird police officers' duties towards suspects in the contexts of post-charge custodial interrogations, pat-down searches, and geolocation searches, respectively. We have talked before about how the allocatur process requires only three Justices to grant review, but an opinion must ultimately garner a majority of four. This circumstances has proven to be a mixed bag in the criminal justice arena, where the opinions often bear out that a strong minority of the court may be voting to grant review so as to expand the rights of criminal defendants, but it is essentially an even bet as to whether they can glean the votes of another Justice to do it. Sometimes it does, and sometimes the Court's more moderate or conservative (on criminal justice issues) Justices close ranks. It will be interesting to see how these three decisions ultimately shake out.

Precedential Opinions

  • Commonwealth v. Reid, 752 CAP (Opinion by Dougherty, J.) (holding claim of judicial bias predicated on former Chief Justice Castille's participation in the defendant's appeal after his office while serving Philadelphia's District Attorney prosecuted to be time-barred)

  • Kurach v. Truck Ins. Exch., 12 EAP 2019 et al. (Opinion by Todd, J.) (holding an insurer was entitled to withhold from its actual cash value payment general contractor's overhead and profit expenses and rejecting a public policy argument to the contrary)

  • Johnson v. Phelan Hallinan & Schmieg, LLP, 26 WAP 2019 (Opinion by Wecht, J.) (holding that the 2008 Amendment to Act 6, increasing the covered residential mortgage ceiling and tying it to inflation does not apply retroactively to mortgages entered into prior to its effective date)

  • Commonwealth v. Bagnall, 38 WAP 2019 (Opinion by Baer, J.) (holding that district attorney's knowledge of its failure to disclose a cooperation agreement with a witness in the defendant's prosecution was imputed to the Office of the Attorney General when the latter agency took over the prosecution)

  • Commonwealth v. Nevels, 23 WAP 2019 (Opinion by Saylor, C.J.) (holding the offense of retaliation against a witness does not apply solely to witnesses in civil matters)

Allocatur Grants

  • Commonwealth v. McCabe, 226 MAL 2020 (granting review to consider whether veterans courts are governed by the Rules of Criminal Procedure applicable to Alternative Rehabilitative Dispositions and whether beneficial aspects otherwise available under the aegis of such courts may be denied based on a participant's ability to pay)

  • U.S. Venture, Inc. v. Commonwealth, 140 MAL 2020 (granting review to review the Commonwealth Court's interpretation of the term “construction” in the Procurement Code as referring only to public structures and buildings)

  • Commonwealth v. Edwards, 116 EAL 2020 (granting review to consider whether the offense of recklessly endangering another person merges with aggravated assault causing serious bodily injury)

  • Babb v. Geisinger Clinic, 24 MAL 2020 (granting review to consider whether the lower courts applied the correct standard of proof for rebuttal of the presumption of at-will employment)

  • Commonwealth v. Rawls, 58 MAL 2020 (granting review to consider whether police must do more than provide Miranda warnings to satisfy the right to counsel where they deliberately withhold that a defendant has already been charged with a crime)

  • Commonwealth v. Johnson, 42 EAL 2020 (granting review of Superior Court's holding that a defendant prosecuted for DUI before a minor court may not challenge his ensuing prosecution for factually related crimes outside the minor court's jurisdiction on the basis of certain statutory provisions regarding double jeopardy)

  • Commonwealth v. Dunkins, 118 MAL 2020 (granting review of whether the Superior Court improperly affirmed a trial court decision rejecting a motion to suppress the defendant's warrantless-obtained WiFi-based location data)

  • In the Interest of T.W., 98 EAL 2020 (granting review to consider the appropriate standard for post-pat-down searches of pockets)

  • Quigley v. UCBR, 92 EAL 2020 (granting review to consider whether the Commonwealth Court erred in applying issue preservation rules to an appeal to the Unemployment Compensation Board of Review)

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Corrie Woods Corrie Woods

July 2020 Docket Review

This month, the Court issued 17 precedential opinions (linked below) and 2 orders granting allocatur.

On the opinion side, the most headline-grabbing case is Wolf, in which the Court granted the Governor's request to declare the General Assembly's legislative veto of his coronavirus-related emergency orders invalid. Although the case likely generated the most media controversy, it was relatively straightforward: the Court adopted a federal decision precluding legislative vetoes and requiring that all laws be presented to the Governor before passing into law as part of Pennsylvania's constitutional jurisprudence decades ago, and, here, it merely interpreted (arguable) ambiguities in the Emergency Code to avoid an interpretation that would require it to scrap the provision entirely, a practice consistent with the longstanding constitutional avoidance canon of statutory interpretation.

Also notable is the Court's long, long-awaited decision in McClelland, in which it reaffirmed its holding in Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990), that the Commonwealth cannot establish a prima facie case by virtue of hearsay alone. Buchanan was splintered in its rationale, which, combined with other more practical circumstances, left room for the Superior Court to essentially disregard it in Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. 2015). Yet, Ricker was controversial from the outset, in part because of the significant constitutional discomfort attendant incarcerating defendants based on statements from individuals who refuse to make them in court. (For an interesting discussion of these aspects, check out Courtney M. Kenyon, Incarceration Without Confrontation: An In-Depth Look at Commonwealth v. Ricker.) No longer. McClelland is likely to lead not only to a stark readjustment of initial power dynamics in criminal cases, but also to questions about the Court's willingness to engage in more searching, qualitative sufficiency analysis.

Finally, administrative lawyers may want to take a look at Crown Castle. Although the Court's explicit holding — that an agency's interpretation of a plain and unambiguous statute is entitled no deference — is unremarkable, its application of that principle to the dense Pennsylvania Public Utility Code is something of another matter. This author is unaware of many provisions of that Code, or of most other agency-governing statutes, that aren't reasonably subject to patent or latent ambiguity, but I have a feeling we may be seeing some soon.

On the allocatur side, not a ton to speak of: the Court will consider the implications of the U.S. Supreme Court's limitation of third-party doctrine in Pacheco and the interstices of Pennsylvania constables' peculiar detention authority.

Precedential Opinions

  • Wolf v. Scarnati, 104 MM 2020 (Opinion by Wecht, J.) (holding that if the legislative veto in Section 7301 of the Emergency Management Services Code did not require presentment to the governor for approval or veto, it would violate the Pennsylvania constitutional presentment requirement, and, thus, construing Section 7301 as requiring presentment; holding that the legislature cannot unilaterally suspend laws)

Allocatur Grants

  • Commonwealth v. Pacheco, 79 MAL 2020 (granting review to consider whether an order permitting the Commonwealth to conduct 108 days of surveillance on a defendant's cellular site data violated the Fourth Amendment in light of a recent U.S. Supreme Court decision limiting third-party search doctrine)

  • Commonwealth v. Allen, 227 MAL 2019 (granting review to consider whether a constable who detains an individual for a “breach of the peace” may continue to detain the individual while another officer with greater authority comes to investigate additional offenses)

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Corrie Woods Corrie Woods

June 2020 Docket Review

This month, the Court issued 11 precedential opinions (linked below) and 10 orders granting allocatur.

On the opinion side, the most striking case is Torsilleri, in which the Court appears to be continuing its recent course of holding legislative enactments up to stringent constitutional review. Although the court does not conduct such a review of the statutes involved (sexual offender registration and notification statutes), and instead issues a remand, it sanctions the litigants' efforts to challenge the scientific theory underlying the statutes in court. The decision is sure to raise concern about lawyers' and courts' capacities to wade into myriad areas of scientific, social scientific, and other interdisciplinary scholarship that have heretofore been regarded primarily as legislative in nature.

For appellate practitioners, the Dana Holding Corp. decision will also be interesting due to Chief Justice Saylor's attempt at the herculean task of not only explaining the history and current state of a segment of decisional retroactivity doctrine — i.e. the circumstances under which decisions holding statutes unconstitutional are applied retroactively to cases on direct appeal — but also attempting to make sense of it, with a fair degree of success. Indeed, the Chief Justice recounts a lengthy series of interrelated federal and state decisions attempting to adopt bright-line (or even dim-line) rules, before deconstructing (or even collapsing) them into the following formulation:

“the general rule in Pennsylvania will be that, at least where prior judicial precedent isn't overruled, a holding of this Court that a statute is unconstitutional will generally be applied to cases pending on direct appeal in which the constitutional challenge has been raised and preserved. At the present point in time, however, the Court is not of a mind to exclude the possibility of equitable balancing in extraordinary cases, particularly since no party to this appeal has advocated any such position.”

Slip. Op. at 32.

The Chief Justice's formulation is certain to draw the ire of legal minds who focus on the importance of predictability to the rule of law. On the other hand, once the Court has declared a statute to be unconstitutional, it is fair to say that predictability has already gone out the proverbial window.

On the allocatur side, Cosby will no doubt lead to the most newspaper headlines. In that appeal, the Court will address two of the now-infamous comedian's claims of error relative to his trial for and conviction of aggravated indecent assault: (1) a claim that the trial court erred in admitting evidence of Cosby's use of drugs to assault numerous additional women, as such evidence was inadmissible character evidence; and (2) evidentiary and other claims related to the prosecution's alleged promises not to prosecute him to procure his testimony in a related civil case. Although the Court typically only grants review of substantial legal issues that are novel or which could impact other cases, it is notable that the first issue is essentially a fact-specific one that really has import only in this case. (The second has significantly more to do with doctrine.) It is unclear whether the Court viewed the lower court's disposition of the character evidence issue as flawed, found it important to weigh in on this high-profile case, or had some other basis for granting review, but it will be interesting to see whether highly public cases make bad law.

Additionally, although Cosby will generate more press coverage, the grant of allocatur in Mortimer my have the most impact. Under current Pennsylvania law, it is extremely difficult to hold one commercial entity responsible for the liabilities of related ones, or to “pierce the corporate veil.” In Mortimer, the court has indicated a willingness to consider adopting significantly more liberal “single-entity” or “enterprise” theories of veil-piercing, which would allow for piercing where entities essentially operate together toward a common purpose (and which it has rejected numerous times before). If the Court were to adopt such theories, not only would many businesses face higher exposure to liability, but, because these theories are often predicated on complex factors tests, significantly higher litigation costs as well.

Precedential Opinions

Allocatur Grants

  • Philadelphia Gas Works v. PUC, 21 EAL 2020 (granting review to consider a municipal lien arising out of delinquent gas bills constitutes a judgment subject to 6% statutory post-judgment interest rates, rather than a utility's 18% tariff rates)

  • Kirksey v. Children's Hospital of Pittsburgh of UPMC, 17 WAL 2020 (granting review to consider the whether the admission of evidence of the risks and complications requires the issuance of an appropriate limiting jury instruction).

  • Commonwealth v. Cosby, 9 MAL 2020 (granting review to consider the admissibility of certain evidence of prior bad acts as well as the validity of a prosecution after, and the admission of evidence gleaned, after an alleged agreement not to prosecute)

  • Mortimer v. McCool, et al., 19 & 20 MAL 2020 (granting review to consider whether to adopt the “enterprise” or “single entity” theory of corporate veil-piercing)

  • Linkosky v. PennDOT, 10 WAL 2020 (granting review to consider whether a licensee's out-of-state suspension warranted denial of his application for a camera card)

  • Commonwealth v. Wardlaw, 13 WAL 2020 (granting review to consider whether the Superior Court erroneously quashed an appeal from an order denying a post-sentence motion for judgment of acquittal after a mistrial)

  • Commonwealth v. Harth, 562 EAL 2019 (granting review to consider whether the Superior Court erred in remanding a timely-trial case for a hearing on the Commonwealth's due diligence where the trial court did not determine the issue after the initial hearing)

  • Commonwealth v. H.D., 728 MAL 2019 (granting review to determine whether a defendant's belief that otherwise-criminal interference of custody with a child is “necessary to preserve the child from danger to its welfare” must be reasonable to constitute a defense)

  • In re: B.W., 432 WAL 2019 (granting review to consider whether developing a plan constitutes an act in furtherance of a threat to kill a co-worker for purposes of Pennsylvania's involuntary mental-health commitment laws)

  • Always Busy Consulting, LLC v. Babford & Co., Inc., 436-38 WAL 2019 (granting review to consider whether the Superior Court erred in quashing an appeal where the appellant filed two notices of appeal at the same docket number at the direction of the trial court)

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Corrie Woods Corrie Woods

May 2020 Docket Review

This month, the Court issued 7 precedential opinions (linked below) and 2 orders granting allocatur.

On the opinion side, two items of note for the appellate practitioner, and both tend to point toward the Court's increasing comfort with limiting prudential doctrines that, depending on your point of view, either prevent the court from losing legitimacy or prevent it from doing substantial justice. First, in Coleman, the court appears to be continuing in a recent trend of looking the other way on waiver of issues. In that case, the petitioner raised a claim of ineffective assistance of counsel that the PCRA court rejected on the ground that the underlying claims lacks arguable merit, not speaking to whether the attorney's act or omission was rooted in reasonable strategy or caused the petitioner prejudice. On appeal, the petitioner erroneously framed his claims as if he were merely litigating the claims in the first instance (i.e., as claims of trial court error), rather than litigating derivative claims of ineffective assistance of counsel. The Commonwealth objected to the petitioner's advocacy in this regard as rendering his claims waived, given that it failed to address the remaining to inquiries, and the petitioner replied that, given that the PCRA court addressed only the initial arguable-merit inquiry, he was free to do the same. In an opinion by Justice Max Baer, the Court, although citing authority seemingly submarining the petitioner's argument, nevertheless determined it was free to address the issue, seemingly because its order granting allocatur implicated only the arguable-merit inquiry:

Generally speaking, if a PCRA petitioner seeks review of claims of ineffective assistance of counsel in a direct appeal from a PCRA court order denying a PCRA petition, the petitioner must present the appellate court with argument on all three prongs of the ineffective-assistance-of-counsel standard. See, e.g., Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007) (“Further, appellants continue to bear the burden of pleading and proving each of the [ineffective assistance of counsel] elements on appeal to this Court.”). Here, however, Appellant is not appealing directly from an order denying his PCRA petition and wholesale rejecting his claims of ineffective assistance of counsel. Rather, this Court granted discretionary review to examine the manner in which the lower courts addressed the arguable merit prong of those claims. We, therefore, find no fault in Appellant's advocacy to this Court, as it aligns with the issues that the Court decided to address.

Coleman, 24 EAP 2019, at 8. An earlier court might have dismissed the claim (and, if no other issues warranted discretionary appeal, the entire appeal), but as I have noted in earlier posts, this Court appears eager to get to, and resolve legal issues, and it appears much more comfortable dispensing with arguable impediments to doing so.

Second, in Ladd, the court holds that application of several real estate requirements real estate broker licensing requirements, as applied to “short-term vacation property managers,” violate the state constitutional right to substantive due process. In so doing, the Court continues down the path of entrenching the “real and substantial relationship test,” or a requirement that statutes must bear a “real and substantial” relationship to a legitimate governmental purpose, and be neither “oppressive” or “unnecessary” to accomplishing it, in Pennsylvania constitutional jurisprudence. As Justice David Wecht notes in his dissent, and as he has noted before, Pennsylvania's employment of that standard stands in stark contrast to the federal standard, which is a “rational relationship” test that largely defers issues of policy and fit to the legislature. The federal courts abandoned a more stringent standard most famously employed in Lochner v. New York, 195 U.S. 45 (1905), in the early 20th century, largely in the context of regulations on business and labor in post-Gilded-Age America, after hard-earned wisdom that the legal community and the (in the federal system, unelected) judges it creates often have their own views about what the law should be, and that such a rigorous constitutional standard often turns what one jurist thinks is sensible into a Platonic truth that it is. Lochner is something of an un-utterable monster among modern lawyers, judges, and legal scholars, particularly those concerned about judicial overreach.

In fairness to the Court, however, its particular decisions in this area are not Lochner, which held that minimum wage and maximum hour laws violated workers' freedom to contract (i.e., freedom to be overworked and underpaid). Moreover, the elected Justices have something that their federal counterparts (and, in truth, even a majority of members of the General Assembly) do not: statewide electoral mandates. Thus, the concerns that they are unaccountable superlegislators is something of a misfire.

Nevertheless, only time will tell if the Court keeps what could be a dangerous creature in its cage.

Precedential Opinions

  • Commonwealth v. Coleman, 24 EAP 2019 (Opinion by Baer, J.) (holding that defendant's trial counsel was ineffective in failing to object to the admission of evidence as hearsay, despite the evidence being admissible as offered for non-hearsay purposes, because counsel's failure precluded an instruction that the evidence be considered only for non-hearsay purposes; and holding that the Superior Court erred in failing to address one of defendant's claims; holding that alleged prosecutorial statements suggesting a lower burden of proof were not reversible error because of a trial court's ensuing instructions stating the correct burden of proof).

  • Commonwealth v. Johnson, 40 EAP 2018 (Opinion by Saylor, C.J.) (holding that the Pennsylvania Constitutional protection against double jeopardy applies not only where prosecutorial misconduct intentionally provokes a mistrial, but also where it recklessly does so)

  • Commonwealth v. Hoover, 25 MAP 2019

    • Opinion Announcing Judgment of the Court by Todd, J., (joined by Donohue & Dougherty, JJ.) (opining that a trial court erred in vacating an earlier order terminating intermediate punishment on the basis of an offense committed after the order was entered because to interpret the statute permitting trial courts to reconsider their rulings as permitting them to do so would violate notice requirements of the constitutional right to due process)

    • Concurring Opinion by Donohue, J. (opining as to two collateral points)

    • Concurring Opinion by Wecht, J. (agreeing with OAJC's holding, but finding its application lacked record support, and expressing an additional view that the trial court erred because its decision lacked record support and thereby violated due process)

    • Concurring and Dissenting Opinion by Baer, J. (joined by Saylor, C.J., and Mundy, J.) (rejecting the OAJC's decisional basis as waived)

  • Carr v. Dept. of Transp., 3 MAP 2019 (Opinion by Mundy, J.) (holding that the Commonwealth Court improperly analyzed a claim that a governmental employer violated an employee's rights in terminating her for social media posts and reinstating the termination)

  • Commonwealth v. Taylor, 29 MAP 2019 (Opinion by Wecht, J.) (holding that a juvenile court's certification of a juvenile delinquency matter to criminal court in part based on the juvenile's assertions of innocence violated his federal constitutional privilege against self-incrimination)

  • Ladd v. Real Estate Commn., 33 MAP 2018 (Opinion by Dougherty, J.) (holding that certain real estate broker licensing requirements, as applied to “short-term vacation property managers,” violate the state constitutional right to substantive due process)

  • Northern Berks Regional Police Commn. v. Berks Cnty. FOP, 53 MAP 2019 (Opinion by Dougherty, J.) (reinstating arbitrator's award in police union grievance)

Allocatur Grants

  • Commonwealth v. Howard, 450 WAL 2019 (granting review of whether a mother's placement of a child in the backseat of a hired car without a seat belt was sufficient to convict her of endangering the welfare of a child)

  • Commonwealth v. Raboin, 441 WAL 2019 (granting review of whether the admission of a forensic interview during rebuttal was improper)

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Corrie Woods Corrie Woods

April 2020 Docket Review

This month, the Court issued 12 precedential opinions (linked below) and 6 orders granting allocatur.

On the opinion side, the most topical decision is Friends of Danny Devito (no, not that Danny Devito; this one is a Republican candidate for state representative in Allegheny County). In that case, Devito, among others, represented by a former Republican candidate for United States Senate, raised a series of statutory and constitutional challenges to Governor Wolf's emergency orders closing non-life-sustaining businesses, asking the Supreme Court to exercise its extraordinary jurisdiction to summarily hear the appeal and raising a series of statutory and constitutional claims. Justice Donohue, writing for a majority of the Court, agreed to exercise extraordinary jurisdiction, but rejected the claims outright, often in terms revealing the claims' lack of development and even inherent obtuseness. Chief Justice Saylor, writing for a three-Justice minority, would have declined to exercise extraordinary jurisdiction, and would have been more circumspect about the petitioners' claims that they were unable to test the orders' classification of businesses for rationality. The petitioners, undeterred, have sought review before the United States Supreme Court, and, at the time of this writing, that Court has required a response. Given the lack of development and strength of their claims before our High Court, as well as their filing before *the* High Court, I am not bullish on their prospects. One imagines that their audience may have been someone other than the judicial system (for example, a certain segment of voters), from the outset.

More interesting to the appellate lawyer, however, is Koehler. The decision, which arises initially from former Justice Michael Eakin's involvement a racist and sexist e-mail scandal and involved a claim of appellate court bias, led to the recusal of every Justice who was presiding at the time of the initial appeal and the employment of a rarely-used mechanism for the seating of other judges on the court: here, Judges Megan McCarthy King, Deborah Kunselman, and Carolyn Nichols. The irony of a sexism scandal leading to what (I believe) is the first majority-female panel of the Court in history is not lost on this author. Even more significant, however, is that Justice Wecht, writing for a majority comprised of himself, Justice Donohue, and the three aforementioned judges, held that claims of appellate court bias were cognizable before PCRA courts throughout the Commonwealth, rejecting arguments that such subjection would undermine its authority and the judicial discipline system. Indeed, Justice Wecht wrote, “the fact that this Court sits atop the judiciary of Pennsylvania does not elevate this Court above the law, nor can it support a conclusion that constitutional deprivations attributable to this Court are insulated from review. The rule of law applies to us as it does to all.” Justice Dougherty, joined by Justice Mundy, dissented, citing concerns that the decision paved the way for its precedents to be unraveled, and its authority to be questioned, by PCRA courts.

As much Justice Wecht's language stirs visions of a judicial Magna Carta, its longevity remains to be seen. Koehler's holding (and that language) were essentially lifted from his nonbinding, two-Justice Opinion in Support of Reversal in Commonwealth v. Taylor, 218 A.3d 1275 (Pa. 2019), to which Justices Dougherty and Mundy likewise dissented, largely on the same grounds. The true test will be what happens when a claim unrelated to former Justice Eakin arises, and Chief Justice Saylor, Justice Baer, and Justice Todd, return. Although Koehler now has the force of stare decisis, a robotic conception of which would require all seven Justices to apply it regardless of their personal views, it is not rare for Justices in dissent to continue to hold a proverbial candle for their positions, or for Justices who have not themselves previously spoken to a question to view it as a blank slate.

On the allocatur side, the Court granted review in Firearm Owners Against Crime to address an issue of pre-enforcement standing to challenge certain Harrisburg firearms regulations (it is Harrisburg's position that the plaintiffs, who were never cited for violations of the regulations, have jumped the gun), which may reaffirm, or, alternatively, expand pre-enforcement standing doctrine, which could have massive impacts in the areas of constitutional and administrative law.

Finally, a treat for Pittsburgh-area residents like this author, the Court granted allocatur in Lamar Advantage to review a Commonwealth Court decision that leaves a vinyl sign that some people (and some people writing this sentence) view as a garish eyesore mounted atop the Mount Washington Overlook (notably, within sight of four of the Justices' chambers). I'm sure that the Justices will decide the case on the law and the facts, but Lamar's claim that their zoning permits to operate an old-timey electronic sign apply equally to hanging a tarp off of Pittsburgh's most beautiful vista may seem less persuasive on Grant Street than in Philadelphia.

Precedential Opinions

  • Commonwealth v. Koehler, 768 CAP (Opinion by Wecht, J.) (holding, inter alia, that a petitioner may litigate claims of appellate court bias in a PCRA court)

  • ODC v. Altman, 158 DB 2017 (Opinion by Mundy, J.) (disbarring attorney who engaged in unethical sexual and financial relationships with a client and later filed a baseless collection action against her)

  • Erie Ins. Exchange v. Moore, 20 WAP 2018 (Opinion by Dougherty, J.) (holding that an insurer's duty to defend an estate was triggered where the decedent, while attempting to kill his wife, negligently killed a third party).

  • Trigg v. Children's Hospital, 3 WAP 2019 (Opinion by Todd, J.) (holding that plaintiffs waived a claim that the trial court erred by not personally conducting voir dire)

  • Commonwealth v. Trahey, 38 EAP 2018 (Opinion by Wecht, J.) (holding that warrantless DUI blood-draws are not permissible pursuant to the exigent circumstances exception to the constitutional protections against unreasonable searches and seizures where equally probative warrantless breath tests can be performed)

  • Commonwealth v. Tedford, 773 CAP (Opinion by Donohue, J.) (affirming the denial of PCRA relief in a capital case)

  • In the Interest of J.M.G., 18 MAP 2019 (Opinion by Mundy, J.) (holding that, where psychologist-privileged materials are erroneously included in materials provided to the Sexual Offender Assessment Board, an ensuing determination is invalid and the erroneous reliance thereon constitutes structural error)

  • A Special Touch v. Dept. of Labor and Indus., 30 MAP 2019 (Opinion by Baer, J.) (holding that the definition of “employment” in the Unemployment Compensation Law, which includes those “customarily engaged” in non-employee positions, excludes only those actually engaged in such positions, rather than those who might typically be engaged in such positions)

  • Commonwealth v. Britton, 55 MAP 2018 (Opinion by Baer, J.) (holding that California law enforcement officers were not acting as agents of Pennsylvania law enforcement authorities, and, thus, declining to reach whether such agency would implicate Pennsylvania's constitutional protections)

  • Commonwealth v. Copenhaver, 48 MAP 2019 (Opinion by Saylor, C.J.) (holding that driving a vehicle with an expired registration sticker does not constitute a breach of the peace — i.e. “an act or circumstances that causes harm to persons or property, or has a reasonable potential to cause such harm, or otherwise to provoke violence, danger, or disruption to public order – implicating a sheriff's common law authority to conduct a traffic stop”)

  • Friends of Danny Devito v. Wolf, 66 MM 2020 (Opinion by Donohue, J.) (rejecting numerous statutory and constitutional challenges to Governor Wolf's coronavirus emergency order)

  • In re: H.R., 41 MAP 2019 (Opinion by Dougherty, J.) (holding provisions of Juvenile Act requiring mandatory sexual offender treatment for juveniles adjudicated delinquent for committing sexual offenses are not criminal punishments for, but, rather, collateral consequences of, the adjudications, and therefore do not implicate various constitutional criminal procedural rights)

Allocatur Grants

  • In re: P.G.F., 58 WAL 2020 (granting review to consider whether an attorney's service as guardian ad litem and counsel for a minor amounted to a conflict of interest where, finding that the minor did not know her biological father, he failed to tell her as much before asking her litigation goals)

  • Firearm Owners Against Crime v. City of Harrisburg, 724 MAL 2019 (granting review to consider pre-enforcement standing to challenge local gun regulations)

  • McCloskey v. PUC , 585-587 MAL 2019 (granting review to consider several challenges to a consumer-favorable decision of the Commonwealth Court involving evaluation and ratemaking the context of private acquisition of previously publicly owned water and wastewater systems)

  • Lamar Advantage GP Co. v. City of Pgh. Zoning Bd. of Adjustment, 409 WAL 2019 (granting review to consider whether advertising company was free to cover a large electronic sign atop Pittsburgh's Mt. Washington Overlook with a vinyl sign without seeking and obtaining new zoning and building permits)

  • In the Interest of J.J.M., 549 MAL 2019 (granting review to consider whether a conviction for terroristic threats predicated on the defendant's recklessness with regard to causing, rather than intent to cause, terror, violates the First Amendment right to free speech)

  • SLT Holdings v. Mitch-Well Energy, 336 WAL 2019 (granting review to consider issues of compliance with and abandonment of a “drill or pay” oil and gas lease)

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Corrie Woods Corrie Woods

March 2020 Docket Review

This month, the Court issued 5 precedential opinions (linked below) and 6 orders granting allocatur.

Two observations of note this month. First, it is notable that 3 of the 11 items below deal with child sexual abuse, with two opinions coming down on the side of robust investigation and monitoring of those convicted of sexual offenses. In APSCUF, the Court holds that the information-gathering — i.e., background check — aspects of Pennsylvania state colleges' anti-child sexual abuse policies are managerial prerogatives, rejecting a bid by a faculty union to hold that they are subject to mandatory collective bargaining. (The disciplinary aspects of the policy, however, appear to remain subject to collective bargaining.)

In Butler, the Court holds that certain registration, notification, and counsel requirements applicable to individuals convicted of sexual offenses and determined to be “sexually violent predators” (SVPs) — note that this statutory term is somewhat loaded as compared to its predicate, as it is defined less breathlessly as anyone who, by virtue of mental illness, is more likely to engage in a sexual offense — are not criminal punishments for, but, rather, collateral civil consequences of, the underlying convictions, and therefore not subject to myriad federal and state constitutional requirements for criminal punishments. In so doing, the Court was required to distinguish its earlier decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), in which it held that similar requirements applicable to individuals convicted of sexual offenses but not determined to be SVPs were, in fact, criminal punishments. The court did so relying largely on the ground that SVPs, unlike their non-SVP counterparts, were essentially diagnosed with dangerous mental illnesses, such that the requirements were less directly associated with conviction and closer to civil public health or other mental illness laws. The Court's distinction is a reasonable one, but, like many decisions of American courts attempting to apply the criminal punishment/collateral civil consequence framework, appears to rest more on formalism than substance: as a matter of practical reality, the requirements applicable to SVPs are akin to a lifetime term of probation, and they are imposed without the constitutional procedural rights — such as a trial by jury — typically necessary to impose such a sanction.

Finally, in Rice, the Court has granted allocatur to consider the application of a series of common-law principles governing the timeliness of filing a claim in the context of a civil action involving the Catholic Church child sexual abuse scandal.

All of this to say that the fallout from the Jerry Sandusky/Penn State scandal, which broke in November 2011, and the Catholic Church scandal, which arguably broke in the early 1990s, but reached its zenith in Pennsylvania in 2018, is not receding any time soon, and that the Court appears to be engaged in a good-faith attempt to appropriately balance the goals of protecting children and protecting others' rights (in APSCUF, workers' union rights, and in Butler and Muniz, criminal defendants' constitutional rights). At the risk of gushing, it's great, and, unfortunately, sometimes rare, to see jurists do that.

Second, a note about one of the Court's miscellaneous orders. After Governor Wolf's March 19, 2020 order directing non-life-sustaining businesses to close, some law firms brought a King's Bench petition challenging the order insofar as it applied to their practices. Later, Governor Wolf amended the order in a way that permitted them to practice, and the Court issued a per curiam order indicating that the petition was moot and dismissing it and denying it in certain other respects. This is not interesting. What is interesting is that Justice David Wecht, joined by Justices Christine Donohue and Kevin Dougherty, authored a concurring and dissenting statement expressing concern that the Governor's order, insofar as it applied to the purchase and sale of firearms, violated the federal and state constitutional rights to bear arms. (You can read the statement here.) I highly doubt that gun-rights advocates were counting on the support of what are arguably the court's three most liberal/progressive justices. Take note, because I have a feeling I will be repeating this often: judicial liberalism is not the same as political liberalism.

Precedential Opinions

  • Commonwealth v. Diaz, J-57-2019 (Opinion by Donohue, J.) (holding that where the failure to furnish a language interpreter impairs a defendant's ability to communicate with counsel, it constitutes a denial of counsel per se and structural error)

  • APSCUF v. PALRB, J-74-2019 (Opinion by Todd, J.) (holding that the information-gathering aspects of Pennsylvania state colleges' anti-child sexual abuse policies are managerial prerogatives not subject to mandatory collective bargaining)

  • Rohland v. Wakefield, J-39-2020 (Opinion by Saylor, C.J.) (holding that correctional facilities are authorized to continue making deductions from prisoner accounts to pay costs associated with the prisoners' sentences after they are no longer serving those particular sentences and are serving other sentences)

  • Commonwealth v. Housman, J-58A&B-2019 (Opinion by Todd, J.) (affirming the denial of guilt-phase relief and grant of penalty-phase relief in a capital PCRA case)

  • Commonwealth v. Butler, J-89-2019 (Opinion by Dougherty, J.) (holding that sexual offender registration, notification, and counseling requirements applied to individuals convicted of sexual offenses and determined to be sexually violent predators are not criminal punishments, but, rather, collateral consequences, of the underlying convictions and determinations and therefore are not subject to myriad federal and state constitutional rules governing criminal punishments)

Allocatur Grants

  • Gussom v. Teagle, 522 EAL 2019 (granting review to consider the scope of a plaintiff's obligation to make a good-faith attempt at service prior to the expiry of a statute of limitations)

  • Commonwealth v. Shaw, 590 MAL 2019 (granting review of the Superior Court's declination to find a claim of ineffective assistance of PCRA counsel raised for the first time on appeal waived and observance of the standard of review in appeals from orders denying PCRA relief).

  • Terra Firma Builders, LLC v. King, 606 MAL 2019 (granting review to determine whether a property owner who seeks to challenge the perfection of a mechanics lien' must file preliminary objections to the lien prior to or before enforcement thereof)

  • Commonwealth v. Eid, 482 EAL 2019 (granting review to consider whether certain enhanced penalties for DUI - refusal of blood test violate the Pennsylvania constitutional protection against unreasonable searches and seizures and/or are unconstitutionally vague because they provide no express maximum penalty)

  • Commonwealth v. Perez, 550 EAL 2019 (granting review of the Superior Courts application of the Commonwealth's burden of proof at a preliminary hearing)

  • Rice v. Diocese of Altoona-Johnstown, 325 WAL 2019 (granting review to consider the application of several common-law temporal-limitation doctrines in a child sexual abuse case)

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Corrie Woods Corrie Woods

February 2020 Docket Review

This month, the Court issued 4 precedential opinions (linked below) and 5 orders granting allocatur.

On the opinion side, although Baldwin will likely be the most media-covered case issued this month (because it is tangentially related to the Jerry Sandusky child sexual abuse scandal), this author is paying more attention to Dean and Young.

In Dean, the Court holds that a drug detoxification and mental health treatment institution cannot avail itself of qualified immunity under the Mental Health Procedures Act where its patient is admitted for and primarily treated for drug detoxification and does not obtain mental health treatment. Central to the court's reasoning is that, whereas the Act provides immunity for providers of mental health treatment so as to promote access thereto, the Pennsylvania Department of Human Services has defined that term by reference to American Psychological Association guidelines except that it excludes, among other conditions identified in those guidelines, drug dependency: as such, in the Court's view, the Act provides no immunity where a patient is admitted for and primarily treated for drug dependency.

The court's reasoning is far from unquestionable. First, the term “mental illness,” in common parlance, might well include drug dependency, and there is certainly no language in the Act affirmatively excluding it. Moreover, by the Court's (and DHS') own indication, the psychological community certainly regards the category as including drug dependency, and the Court does not explain how the Act's language itself excludes it, or how its purpose of promoting the availability of mental health treatment does not similarly apply to promoting the availability of drug-dependency treatment. Finally, earlier or other courts might be inclined to find that the statutory language warrants deference to the DHS' definition, but this Court has, over the last year or so, begun questioning whether it might be better suited to interpret statutory language than Harrisburg bureaucrats.

In Young, the question presented is a relatively simple one: may the Pennsylvania Board of Probation and Parole rescind its previous grant of time-credit for a parolee's time spent at liberty on parole based on subsequent violations of parole? Young is clear in one respect: in a unanimous opinion, the Court says no. But that unanimity, for all practical purposes, seems poised to break down. In a concurring opinion, Chief Justice Saylor, joined by Justice Mundy, posits that the Board would be free to do so if it had just conditioned its grant of time-credit on its future ability to rescind it based on subsequent violations. In a mirror-image concurring opinion, Justice Wecht, joined by Justice Todd, says it may not. Justices Donohue, Baer, and Dougherty express no opinion.

Young, in this regard, provides an illustration of the benefits and burdens of judicial activism and minimalism. On one hand, if Chief Justice Saylor had not offered the Board a potential alternative way to achieve its preferred result, it may have simply thrown its figurative hands in the air and abandoned the kind of rescission at issue, to the detriment of its policy goals. On the other hand, there is something to be said for the proposition that the judicial duty is to decide the case before the court, not to provide prospective advice for litigants (or to preemptively challenge the advice as flawed). Either way, expect to see the issue arise sometime in the future.

On the allocatur side, Rogers seems the most interesting. In addition to providing guidance as to the contours of Pennsylvania's Rape Shield Law and its intersection with the federal constitutional right to present a defense, it will provide the Court another opportunity to address the harshness of its extant Pa.R.A.P. 1925(b) jurisprudence, an opportunity it forewent recently in Commonwealth v. Parrish (see our December docket review). In Parrish, a PCRA petitioner filed a Rule 1925(b) statement that failed to identify which of his dozens of PCRA claims he sought to reiterate on appeal, and the PCRA court, guessing, addressed some of those claims. After submission of the case, the Court directed briefing on (1) whether the vagueness of the statement occasioned waiver of all of the claims regardless of the PCRA court's divinations, ostensibly opening the door to loosen the bright-line rules of 1925(b) waiver; and (2) certain issues related to ineffective assistance of counsel per se, which required a waiver finding to be justiciable. It ultimately declined to revisit Rule 1925(b) jurisprudence and instead addressed the ineffectiveness issues, but Rogers would appear to provide it another chance.

For my part, I think the Court's jurisprudence could use reexamination. Unlike certain other of waiver rules, Rule 1925(b) is not primarily ajudicative: it is not designed to ensure that an opposing party or a trial court has fair notice of a claim and an opportunity to respond. By the time a Rule 1925(b) statement is required, all of a litigants claims have already been raised or waived. Instead, Rule 1925(b) is primarily dialectic: it is designed to enable the trial court to justify, and the appellate court to review, the trial court's decision. Applying its waiver provisions where the courts are entirely able to do that task is Rhadamanthine and pointless.

Precedential Opinions

  • Office of Disciplinary Counsel v. Baldwin, J-63-2019 (Opinion by Donohue, J.) (reprimanding former Justice and erstwhile general counsel for Penn State Cynthia Baldwin for conflicts of interest arising from her concurrent representation of Penn State and three of its administrators in their personal capacities in grand jury proceedings related to the Jerry Sandusky child sexual abuse scandal).

  • Dean v. Bowling Green-Brandywine, J-79-2019 (Opinion by Dougherty, J.) (holding qualified immunity pursuant to the Mental Health Procedures Act is inapplicable where a patient is admitted for and primarily treated for drug detoxification and does not receive treatment to facilitate recovery from a mental illness)

  • Young v. Pa. Bd. of Prob. and Parole, J-100-2019 (Opinion by Donohue, J.) (holding that the Pennsylvania Board of Probation and Parole lacks the authority to rescind previously granted time-credit for time spent at liberty on parole)

  • Roverano v. John Crane, Inc., J-10A&B-2019 (Opinion by Mundy, J.) (holding the Fair Share Act does not displace common law per capita apportionment of liability in strict liability asbestos litigation)

Allocatur Grants

  • Commonwealth v. Fitzpatrick, 288 MAP 2019 (granting review to determine whether a decedent's note apparently forecasting his eventual slayer was improperly admitted under the “state of mind” exception to the rule against hearsay and, if so, whether its admission constitutes error notwithstanding an appellate court's view that it was actually admitted for purposes other than the truth of its contents and, thus, not hearsay)

  • Commonwealth v. Yale, 523 MAL 2019 (granting review to consider whether the Superior Court correctly interpreted and applied the law applicable to evidence of prior bad acts)

  • Commonwealth v. Rogers, 523 EAL 2019 (granting review to consider the proper scope of Pennsylvania's Rape Shield Law where a defendant seeks to prove that sex derived from consensual prostitution; granting review to consider whether the defendant waived his weight-of-the-evidence challenge by filing a vague concise statement of reasons relied upon for allowance of appeal where he previously litigated a post-sentence motion on the issue and the trial court addressed it in its opinion)

  • Commonwealth v. Finnecy, 252 WAL 2019 (granting review to consider whether a single conviction constitutes a “history of present or past violent behavior” for purposes of the Recidivism Risk Reduction Incentive Act)

  • In re Appeal of Coatesville Area Sch. Dist., 522 MAL 2019 (granting review to consider whether the lower court erred in applying res judicata and collateral estoppel where a companion case was not appealed).

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Corrie Woods Corrie Woods

January 2020 Docket Review

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

On the opinion side, the most newsworthy case is probably Briggs. In Briggs, the Court rejected an attempt by an fracking company (and an onslaught of fracking industry amici) to transform the common law rule of capture — which provides that a landowner whose land shares a common pool of oil or gas with a neighbor may withdraw from his portion of the pool without concern for whether it causes drainage from his neighbor's portion — into a freestanding right to frack, regardless of whether the operation causes a trespass into the neighbor's property, an approach previously adopted in the State of Texas, and an approach which many oil companies assumed would govern when they acquired mineral rights. On the other hand, the court's decision also rejected the Superior Court's suggestion that the rule of capture was somehow inapplicable because fracking is a technologically advanced method of extraction, or that fracking ipso facto causes trespass. In short, if a plaintiff can prove that an adjacent fracking operation caused a physical intrusion, however slight, into its property, it has a cause of action. That's a lot more liability than oil companies subjectively expected, but it's also been the law for most of American history.

But for appellate practitioners, the more interesting case is Parrish, a capital PCRA case in which appellate counsel filed a Rule 1925(b) statement that merely indicated that the PCRA court erred in failing to grant relief. Although that's not necessarily too vague, it clearly was in Parrish, where the petitioner had advanced upwards of 20 claims, requiring the PCRA court to guess at which it should address in service of Parrish's appeal. A long time ago, the Court issued an order requesting additional briefing on a few questions, among them (1) whether the statement should be viewed as waiving all the claims, or just the ones the trial court did not ultimately address; and (2) whether, if it did waive all the claims, it constituted ineffective assistance of counsel per se and warranted a summary remand for reinstatement of appellate rights. This might not seem remarkable, but the first question was essentially an invitation to overrule longstanding jurisprudence that defects in a concise statement constituted procedural default regardless of whether they undermined appellate review, and the second was an invitation to overrule a 2010 decision holding that such summary relief was never permissible in the context of the PCRA. The court ultimately did not address the first question, and, although answering the second in the affirmative, never expressly overruled the 2010 decision. All that said, the astute observer might conclude the court is newly willing to reconsider the harsh effects of Rule 1925(b) in an appropriate case.

On the allocatur side, McKelvey is the latest in a far-too-numerous list of cases requiring interpretation of the Pennsylvania Right-to-Know Law, a statute with all the clarity of granite. In this iteration, the Court will determine whether certain financial information submitted by marijuana-related companies to the Department of Health is subject to RTKL disclosure because, those companies being unbanked (because they are technically illegal enterprises), disclosure of their cash assets would pose a risk to their security. Also interesting is Peters, in which the Court will consider whether an employee returning from an employer-sponsored social event was within the scope of his employment for purposes of the Workers' Compensation Act. Given the court's recent actions with regard to the Act and to the workplace generally, one suspects the court may be considering whether to recognize that workplace social events are more workplace than social.

Precedential Opinions

  • Commonwealth v. Parrish, 733 CAP (Opinion by Todd, J.) (holding that PCRA counsel's filing of a “vacuous” concise statement of errors complained of on appeal constituted ineffective assistance of counsel per se and warranted the appointment of new counsel and the right to file a concise statement nunc pro tunc)

  • In the Interest of N.B.-A., 11 EAP 2019 (Opinion by Todd, J.) (holding that the evidence was insufficient to support a finding of child abuse where a mother's daughter was sexually abused by her stepbrother and there was no clear evidence that she was aware or the risk of abuse)

  • City of Pittsburgh v. Fraternal Order of Police (Opinion by Saylor, C.J.) (clarifying applicable standards of review in appeals from grievance arbitration awards pursuant to the Police and Firemen Collective Bargaining Act)

  • Commonwealth v. Starry, 19 WAP 2019 (Opinion by Saylor, C.J.) (holding that the Commonwealth may prove BAC-based DUIs by “strong” circumstantial evidence in certain circumstances)

  • Thompson v. Thompson, 36 WAP 2018 (Opinion by Donohue, J.) (holding that a court may not sanction civil contempt of a support order via a suspended sentence)

  • Briggs v. Southwestern Energy Production Co., 63 MAP 2018 (Opinion by Saylor, C.J.) (holding that the rule of capture applies to fracking unaccompanied by physical intrusion, but not to fracking accompanied by physical intrusion)

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

    • Disclosure: This author served as co-counsel for a party participating in this appeal.

  • In re Grand Jury Investigation No. 18, 18 MM 2019 (Opinion by Baer, J.) (holding that release of a grand jury report was not statutorily authorized where it was not connected to organized crime, public corruption, or recommendations in the public interest, as opposed to merely recommendations in alleged victims' interest)

  • Commonwealth v. Cost, 39 EAP 2018 (Opinion by Saylor, C.J.) (holding that an officer's decision to use a suspect's identification to check for warrants, plus additional circumstances, constituted a seizure within the meaning of the Fourth Amendment to the United States constitution, but declining to adopt a per se rule to that effect)

Allocatur Grants

  • McKelvey v. Pa. Dept. of Health, 393, 394, & 396 MAL 2019 (granting review to consider whether financial information in applications to operate marijuana-related businesses before the Department of Health must be disclosed pursuant to the Pennsylvania Right-to-Know Law)

  • Clark v. Stover, 494 MAL 2019 (granting review of whether an attorney's continuing representation of a client tolls the statute of limitations for a legal malpractice action)

  • Commonwealth v. Lineman, 492 EAL 2019 (granting review of a claim by a defendant that, during an altercation, he possessed a weapon he was not otherwise eligible to possess in self-defense)

  • Sadler v. WCAB (Philadelphia Coca-Cola Co.), 413 EAL 2019 (granting review of a decision reversing a determination that an incarcerated individual was not entitled to workers' compensation and related constitutional claims)

  • DeGliomini v. ESM Productions, Inc., 376 EAL 2019 (granting review to consider whether the City of Philadelphia may contractually require a release of otherwise statutorily provided liability, and whether such release applies to negligence occurring prior to the release)

  • Peters v. WCAB (Cintas Corp.), 467 MAL 2019 (granting review to consider whether an employee traveling home from an employer-sponsored social event was within the scope of his employment for purposes of the Workers' Compensation Act)

  • Commonwealth v. Bres, 231 WAL 2019 (granting review to consider whether a challenge to Pennsylvania's sexual offender registration requirements was properly construed as within the scope of the Post Conviction Relief Act and, thus, subject to its timeliness requirements)

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Corrie Woods Corrie Woods

December 2019 Docket Review

This month, the Court issued 2 precedential opinions (linked below) and 5 orders granting allocatur (or its equivalent).

On the opinion side, the more salient of the two is clearly Weeks, which held that the Commonwealth Court did not abuse its discretion in failing to preliminarily enjoin the enforcement of Act 12 of 2019, which eliminated significant amounts of cash assistance for poor and otherwise marginalized Pennsylvanians, as violative of the original-purpose and single-subject requirements of the Pennsylvania Constitution. Chief Justice Saylor, writing for a 6-1 majority, held that those challenging Act 12 failed to establish a likelihood of success on the merits, and, thus, were not entitled to a preliminary injunction. Oftentimes, litigation involving the likelihood of success on a constitutional challenge is just a stalking horse for litigation of the challenge itself: if the Justices aren't convinced you have shown that you are likely to prevail on your constitutional challenge, you are probably not likely to prevail on your constitutional challenge. That's not the case here, where, although Chief Justice Saylor garnered a six-justice majority for his position concerning the injunction, (1) Justice Todd authored a concurrence, joined by Justices Donohue and Dougherty, emphasizing the discretion afforded to a court concerning the grant or denial of injunctive relief and directly reserving judgment on the ultimate question; and (2) Justice Wecht would have granted the injunction. In other words, Weeks will be back.

On the allocatur side, Wise will allow the court to yet-again address the exception to the Sovereign Immunity Act for “dangerous condition[s] of Commonwealth agency real estate,” this time in the context of a local housing authority's failure to provide sufficient outdoor lighting near a public housing development. This exception has been the subject of a litany of cases and a coordinate litany of frankly, largely semantic arguments about what constitutes a condition of real estate, and Wise is consistent with that infamous tradition: the Commonwealth Court's analysis rests in part on the conclusion that, whereas the Commonwealth's failure to provide indoor lighting during the day (to alleviate the darkness caused by the enclosure of a building) is an artificial condition of its real estate and therefore renders the exception applicable, the Commonwealth's failure to provide outdoor lighting during the night (to alleviate the darkness caused by the rotation of the Earth) involves a natural condition and therefore renders the exception inapplicable. At some point, the Court may want to consider a retreat from this semantic game and reformulate its conception of the exception ab initio.

Precedential Opinions

Allocatur Grants

  • Finnerty v. Pennsylvania Dept. of Community and Economic Dev., 262 EAL 2019 (granting review to consider whether the “internal, pre-decisional deliberative exception” of the Right to Know Law applies to information shared with certain subcontractors)

  • Wise v. Huntingdon Cnty. Housing Dev. Corp., 404 MAL 2019 (granting review to consider whether the Sovereign Immunity Act's real estate exception applies to a county housing authority's allegedly negligent failure to install appropriate outdoor lighting)

  • Heimbach v. Amazon, 124 EM 2019 (granting certification to consider whether an employee's time spent awaiting employer mandated security constitutes time subject to Pennsylvania's minimum wage laws and whether claims involving allegedly trivial amounts of time may be ignored consistent with the maxim de minimis non curat lex)

  • Fox v. Smith, 324-327 EAL 2019 (granting review to consider appropriate restrictions on venue in actions for defamation arising from internet-based speech)

  • In re: Adoption of K.M.G., 362-365 WAL 2019 (granting review to consider whether the Superior Court erroneously concluded it lacked jurisdiction to consider sua sponte whether a child's legal interest was represented by counsel in an adoption proceeding)

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Corrie Woods Corrie Woods

November 2019 Docket Review

This month, the Court issued 12 precedential opinions (linked below) and 7 orders granting allocatur.

On the opinion side, the court is continuing its course of protecting (or arguably expanding) the rights of civil plaintiffs and criminal defendants against corporate and governmental institutions alike. Indeed, its decisions this month come down on the side of a flight attendant over a national airline, a mentally ill criminal suspect against a popular attorney general engaged in one of the most popular prosecutions of one of the gravest criminal scandals of our time, and a citizen waging a campaign against Harrisburg's recent gun control efforts over our state capital itself. But the big show this month is clearly Davis, which holds that a criminal defendant may not be compelled to reveal a password to his encrypted computer consistent with his Privilege Against Self-Incrimination pursuant to the Fifth Amendment to the Constitution. Although this author happens to agree with the decision for the reasons Justice Todd explains in her majority opinion joined by Chief Justice Saylor and Justices Donohue and Wecht, there is clearly room for reasonable disagreement, as evidenced by Justice Baer's dissent, joined by Justices Dougherty and Mundy. Although predicting whether a case will reach the United States Supreme Court is always a fool's game, I have a strong feeling the Commonwealth is considering a trip to Washington.

On the allocatur side, there are a lot of what I call housekeeping cases: appeals involving extremely narrow doctrinal exceptions (or exceptions to exceptions, or so on) which are not often repeated, but which the Court may want to definitively resolve for the bench and bar. That said, one case lawyers might want to keep an eye on is Raynor, in which the court will determine if a non-party attorney can maintain an action for another party's wrongful use of civil process under the Dragonetti Act arising out of the other party's vexatious request for a finding of contempt and sanctions. It's not exactly a perfect fit for the statutory text, but it may serve to calm some of the more rambunctious members of the civil bar.

Precedential Opinions

  • US Airways, Inc. v. Workers' Compensation Appeal Board (Bockelman), 35 WAP 2018 (Opinion by Wecht, J.) (holding that an airline employee injured on a union-negotiated, airport-provided employee shuttle could maintain an action against the airline for workers' compensation)

  • Estate of Wilson v. State Employees' Retirement Board, 21 WAP 2018 (Opinion by Dougherty, J.) (holding that state employees' requests to change retirement plan options and beneficiaries are not effective upon mailing, but, rather, upon receipt)

  • Assouline v. Reynolds, 5 WAP 2019 (Opinion by Todd, J.) (holding that an action by the purchaser of a sheriff-sold home who wishes to expel its former owners and occupants may not do so via an action for eviction in magisterial district court, but, rather, must do so via an action for ejectment in a court of common pleas)

  • In re: Fortieth Statewide Investigating Grand Jury, 85 WM 2018 (Opinion by Todd, J.) (holding that mental health treatment reports regarding the subjects of investigating grand juries are not subject to public disclosure under state law and may not be included in an ensuing grand jury report)

  • Chevalier, et al. v. General Nutrition Centers, Inc., 22 & 23 WAP 2018 (Opinion by Baer, J.) (holding that employers may not use a “fluctuating work week” to calculate salaried workers' entitlement to overtime pay pursuant to the Pennsylvania Minimum Wage Act)

  • Sayles v. Travelers Insurance Co., 59 & 59 MAP 2018 (Opinion by Todd, J.) (holding that insurer-drafted policy provisions requiring insureds to submit to “independent” medical examinations by insurer-chosen physicians at insurer-chosen times are void as contrary to public policy, specifically provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law designed to protect the actual independence of insurance medical examinations)

  • In re Risperdal Litigation, 22 & 23 EAP 2018 (Opinion by Donohue, J.) (reversing summary judgment in a case where a genuine issue of material fact remained as to whether the plaintiffs were on notice as to their injuries)

  • Commonwealth v. Mock, 68 MAP 2018 (Opinion by Mundy, J.) (holding that the sentencing enhancement for DUI with prior offenses within 10 years applies not to occurrences of DUI within the relevant 10 years, but, rather, to convictions for DUI within that period)

  • Commonwealth v. Smith, 73 MAP 2018 (Opinion by Todd, J.) (holding that a conviction for possession of a firearm with an altered serial number requires evidence of some alteration or obliteration of the serial number)

  • Commonwealth v. Davis, 56 MAP 2018 (Opinion by Todd, J.) (holding a criminal defendant may not be compelled to reveal his password to his encrypted computer consistent with his Privilege Against Self Incrimination pursuant to the Fifth Amendment to the United States Constitution)

  • Sutton et al. v. Bickell, 4 MAP 2019 (Opinion by Saylor, C.J.) (holding a prison rule requiring certain types of boots to be surrendered or sent to prisoners' homes did not violate their constitutional rights to procedural or substantive due process, and that the establishment of the rule was within the scope of the prisons' statutory sovereign immunity and did not violate Pennsylvania consumer laws)

    • See also Dissenting Opinion by Wecht, J.

  • City of Harrisburg v. Prince, J-43-2019 (Opinion by Donohue, J.) (holding that a list of donors to a fund for the defense of a Harrisburg gun control ordinance was a financial record and therefore required to be disclosed pursuant to the Pennsylvania Right to Know Law, but remanding for further consideration as to whether disclosure would violate the donors' state constitutional right to privacy)

Allocatur Grants

  • In re J.W.B., 566 MAL 2019 (granting review to determine whether a Colorado-resident father's consent to the adoption of his children was properly revoked despite its failure to comply with a requirement under Pennsylvania law that he revoke it within 30 days because there is no such requirement under Colorado law)

  • Commonwealth v. Baker-Myers, 193 WAL 2019 (granting review to consider whether a conviction for corruption of minors based on the defendant's aiding and abetting the minor's commission of a crime may stand despite his acquittal of the underlying crime)

  • Estate of Benyo v. Breidenbach, 334 MAL 2019 (granting review to consider whether a court order directing transfer of ERISA-exempt police retirement benefits violates anti-alienation provisions of the Municipal Police Pension Law)

  • Raynor v. D'annunzio, et al. 300-301 EAL 2019 (granting review to consider whether a non-party attorney may maintain an action pursuant to the Dragonetti Act for a client's opponent's wrongful request for a finding of contempt and sanctions)

  • Commonwealth v. Ballentine, 379 MAL 2019 (granting review to consider whether a sentence of restitution in favor of a non-profit entity is valid despite being entered prior to a recent amendment to the Sentencing Code providing for such sentences)

  • In the Interest of D.R., et al., 296-299 WAL 2019 (granting review of whether the Superior Court improperly vacated an order directing parents involved in a child-dependency action to provide a urine sample for drug testing)

  • McMichael v. McMichael, 147-148 WAL 2019 (granting review of whether a jury in a wrongful death action may find liability but award zero damages)

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Corrie Woods Corrie Woods

October 2019 Docket Review

This month, the Court issued 9 precedential opinions (linked below) and 4 orders granting allocatur.

On the opinion side, it is a good month to be a plaintiff's medical malpractice attorney, as the Court's decision in Yanakos has opened up a whole new population of potential clients by declaring that the MCARE Act's 7-year statute of repose violates the Pennsylvania constitutional right to open courts/legal remedies. Remarkably, the Court's rationale focused in part on the fact that although the provision was designed to ensure more predictable medical malpractice liability for actuaries, there was no evidence in the legislative record that it would do so. To the extent the Court is now willing to require the General Assembly to authentically make policy decisions, Yanakos could be the beginning of a new constitutional framework and the end of myriad enactments brought about by legislative industry-capture. Yet, one imagines that legislators previously disposed to assist the medical and other industries without evidence already have appointments with lobbyists eager to provide it.

On the allocatur side, the standout order is Chesapeake Energy, in which the Court will consider whether the Commonwealth can maintain an action pursuant to the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) against energy companies employing unfair or deceptive practices in the leasing and acquisition of mineral rights, and whether it may pursue antitrust remedies therein. The Commonwealth Court, for its part, held that it may maintain such an action, but that it may only pursue such remedies to the degree they related to unfair or deceptive trade practices. It is difficult to predict where the Court will fall. It is something of a jurisprudential stretch to classify the leasing and acquisition of mineral rights as a consumer transaction, but the Commonwealth Court's opinion reads quite persuasively, relying in part on precedent holding that the provision of residential housing is a consumer transaction, and, frankly, the energy industry has not fared well before the Court even prior to its more recent, more liberal incarnation.

Precedential Opinions

Allocatur Grants

  • Commonwealth v. Chesapeake Energy Corp., et al. 225-226 MAL 2019 (granting review of whether the Commonwealth may maintain public actions pursuant to the UTPCPL against energy companies employing unfair or deceptive actions in the leasing and acquisition of mineral rights and whether it may pursue antitrust remedies therein)

  • Commonwealth v. Ballentine, 379 MAL 2019 (granting review of whether a sentence of restitution in favor of a non-profit entity is valid despite being entered prior to an amendment to the Sentencing Code providing for such sentences)

  • In the Interest of D.R., et al., 296-299 WAL 2019 (granting review of whether the Superior Court improperly vacated an order directing parents involved in a child-dependency action to provide a urine sample for drug testing)

  • McMichael v. McMichael, 147-148 WAL 2019 (granting review of whether a jury in a wrongful death action may find liability but award zero damages)

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Corrie Woods Corrie Woods

September 2019 Docket Review

This month, the Court issued 10 precedential opinions (linked below) and 16 orders granting allocatur.

On the opinion side, it is a tale of two cities: while the Court's criminal opinions address some interesting issues — individual privacy rights in Turpin and the criminal justice system's economic impacts in Ford and Petrick — its civil opinions are fairly dry, with several opinions merely applying existing principles of law to particular cases. The Court typically avoids such application because it is the core of the intermediate appellate courts' function.

In this appellate nerd's view, however, the Court is at its most thought-provoking in Bishop, in which Chief Justice Saylor and Justice Wecht trade competing conceptions of waiver doctrine. On the one hand, a strict waiver doctrine protects fairness: one party should not have to waste its time and money while the other paws indiscriminately at new arguments. It also protects the Court: because the Court has the last word in matters of Pennsylvania law, it stands to reason that it would benefit from thorough litigation of the issues before it in earlier fora. Nevertheless, there are countervailing interests: a litigant is not particularly prejudiced where an opposing party raises new legal questions in an appellate forum, and litigation of those issues in lower fora is rarely as meaningfully robust as the Court would like. Unfortunately, these competing prudential concerns sometimes leave Justices with exactly the amount of wiggle-room they need to raise (or evade) legal issues. Sometimes any rule is better than no rule.

On the allocatur side, it looks like the Court doesn't intend to slow down anytime soon, and its interest in considering expanding (or restoring, depending on your view of the timeline) common law tort liability and the rights of criminal defendants is clear. Plaintiffs' attorneys and criminal defense lawyers should not celebrate prematurely, however: as I have noted before, it takes 3 votes to earn discretionary review, and 4 votes to win an appeal. Moreover, although it seems like plaintiffs and criminal defendants are getting a fairer shake than under earlier courts, it is not a free for all. I don't like to make bets, but I highly suspect that oral argument in Mason — involving the question of whether the sounds of child abuse are private oral communications for purposes of the Wiretap Act — will have a decidedly pro-Commonwealth tenor.

Precedential Opinions

  • Barnard v. Travelers Home and Marine Ins. Co., J-41-2019 (Majority Opinion by Wecht, J.) (holding that an increase of underinsured motorist coverage constitutes a “purchase” of insurance coverage triggering an insurer's duty to offer an insured an opportunity to waive stacking of underinsured motorist benefits).

  • Gamesa Energy USA, LLC v. Ten Penn Center Assoc., L.P., J-5-2019 (Majority Opinion by Dougherty, J.) (applying the contract doctrine of election of remedies to commercial lease agreement)

  • Binswanger of Pennsylvania v. TSG Real Estate, LLC, J-14A&B-2018 (Majority Opinion by Todd, J.) (applying contract-interpretation principles to real estate brokerage agreement)

  • City of Phila. v. Galdo, J-46-2019 (Majority Opinion by Baer, J.) (holding that a party may assert a claim of adverse possession against political-subdivision properties not employed for public purposes)

  • Commonwealth v. Bishop, J-51-2019 (Majority Opinion by Saylor, C.J.) (holding appellant waived claim that evidence derived from a non-Mirandized statement violates the Pennsylvania Constitution)

  • Commonwealth v. Ford, J-37-2019 (Majority Opinion by Wecht, J.) (holding that a plea agreements inclusion of a fine does not relieve a sentencing court of its duty to determine if the offender is able to pay the fine before imposing it)

  • Commonwealth v. Petrick, J-33-2019 (Majority Opinion by Mundy, J.) (holding a restitution order is unaffected by the defendant's participation in bankruptcy proceedings)

  • Commonwealth v. Turpin, J-39-2019 (Majority Opinion by Dougherty J.) (holding that a search warrant implicating the space of one roommate in a single-unit dwelling applies to the space of other roommates' as well)

  • Shiflett v. Lehigh Valley Health Network, Inc., J-12-2019 (Majority Opinion by Donohue, J.) (holding that the general verdict rule precludes a new trial on damages where some amount of damages likely derived from a time-barred claim, but where the defendant failed to request a special interrogatory that would have permitted the jury to allocate the damages awarded on each claim)

  • Berner v. Montour Township Zoning Hearing Bd., J-7-2019 (Majority Opinion by Baer, J.) (holding that the Nutrient Management Act preempts local regulation of “nutrients” including animal manure to the degree such regulation is more stringent, inconsistent, or in conflict with the Act)

Allocatur Grants

  • Graham v. Check, 116 WAL 2019 (granting review of whether a trial court's instruction on Pennsylvania's “sudden emergency doctrine” improperly relieved a defendant of his duty of care to a visible pedestrian in a crosswalk)

  • In re Nomination of Cohen, 455-456 EAL 2019 (granting review of whether a candidate for who withdrew major-party nominating petitions pursuant to a court order “voluntarily” withdrew them, and, therefore, was permitted to file third-party nominating papers)

  • Commonwealth v. Alexander, 151 EAL 2019 (granting review of whether to overrule Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), which adopted the federal automobile exception as a matter of Pennsylvania constitutional law)

  • Commonwealth v. Peck, 215 MAL 2019 (granting review of whether a statute criminalizing drug delivery resulting in death applies where the drug delivery occurred outside Pennsylvania, but the death occurred within Pennsylvania)

  • Uniontown Newspapers, Inc. v. Haines, 561 & 779 MAL 2018 (granting review to consider whether a agency's Right-to-Know-Law officer's failure to personally and independently assess a request constitutes bad faith and willful and wanton behavior sufficient to warrant an award of sanctions or attorney's fees and (2) whether the law authorizes an award of attorneys fees when a court reverses a final determination of an agency, rather than, an appeals officer)

  • Leight v. University of Pittsburgh, 29 WAL 2019 (granting review to determine whether physicians who initiate emergency mental-health examinations of patients in service of potential involuntary commitment may be held liable for grossly negligently failing to complete the process where the patients then harm others)

  • Commonwealth v. Hill, 76 WAL 2019 (granting review to determine whether a double jeopardy claim implicates the legality of sentencing and whether the imposition of multiple convictions for DUI - general impairment and/or the imposition of a sentence of imprisonment for one count and a sentence of guilt without further penalty for the second count violate the federal constitutional prohibition on double jeopardy)

  • Commonwealth v. Coleman, 167 EAL 2019 (granting review to determine (1) whether an appellate court may reject a hearsay challenge on the ground that the hearsay statement was not offered for the truth of its contents where that was not communicated to the jury; (2) whether a prosecutor may introduce evidence that a defendant carried guns and “liked to shoot people” despite earlier decisions restricting reference to guns not at issue in a particular case; and (3) whether a prosecutor may tell jurors to look at the entirety of a proceeding “all together,” despite the prosecutor's burden of proof).

  • In re: Estate of Small, 88 EAL 2019 (granting review to determine whether a provision of Pennsylvania's intestate succession laws precluding parents who fail to provide for or desert a “minor or dependent child” from inheriting from them applies to a parent's adult dependent children)

  • Commonwealth v. McIntyre, 132 EAL 2019 (granting review to determine, inter alia, whether decisions invalidating earlier iterations of Pennsylvania's sex offender registration and notification provisions apply retroactively to cases on collateral review)

  • Lohr v. Saratoga Partners, 209 MAL 2019 (granting review to determine whether the lack of a right of redemption in the Real Estate Tax Sale Law violates the federal and/or state constitutional rights to equal protection of the laws)

  • Commonwealth v. Mason, 202 MAL 2019 (granting review of whether (1) a babysitter has a reasonable expectation of privacy in her clients' child's bedroom; and (2) whether sounds caused by abuse of a child are “oral communications” or “evidence derived therefrom” subject to the restrictions of the Pennsylvania Wiretap Act)

  • Rullex Co., LLC v. Tel-Stream, Inc., 128 EAL 2019 (granting review of whether a restrictive covenant in an employment agreement is unenforceable where, although contemplated prior to employment, it is not executed until after employment begins)

  • S.B. v. S.S., 89 WAL 2019 (granting review of whether a gag order in a child custody case prohibiting parents from speaking publicly about the case in a way that identifies the child violates the parents' right to free speech)

  • Commonwealth v. Bagnall, 109 WAL 2019 (granting review of potential Brady violation)

  • In re: Passarelli Family Trust, 235 MAL 2019 (granting review of various issues relating to a lower court's termination of an irrevocable trust as induced by fraud).

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Feature: Free and Equal Elections, Deferred

This June, the Court issued its decision in Working Families Party v. Commonwealth, 34 EAP 2017 (“WFP”), rejecting a claim by a Democratic and would-be-also-WFP candidate, the WFP, and several WFP-aligned voters that the “anti-fusion” provisions of Pennsylvania's Election Code, which prohibit a candidate from filing petitions to seek multiple parties' nominations for a particular office, but do not prohibit write-in campaigns for Democratic and Republican nominations for a particular office (or vice-versa), violate, inter alia, their Pennsylvania constitutional right to free and equal elections. Although the decision is, at first blush, merely an evaluation of a somewhat arcane provision of the Election Code, it functionally guarantees major-party (and major-party-machine) dominance of Pennsylvania politics in perpetuity.

In the opinion, authored by Justice Sallie Mundy and joined by Chief Justice Thomas Saylor, as well as Justices Max Baer and Kevin Dougherty, the Court essentially reasoned that the plaintiffs' claims were meritless because, so long as a candidate is permitted to seek a single party's nomination (and so long as any candidate can avail himself or herself of the write-in exception), the anti-fusion provisions do not dilute any voter's power to select the candidate of his or her choice in the general election:

[T]he overarching objective of [the Pennsylvania constitutional right to free and equal elections] is to prevent dilution of an individual's vote by mandating that power of his or her vote in the selection of representatives be equalized to the greatest degree possible with all other Pennsylvania citizens. Viewed from this perspective, Appellants have not established that their votes were diluted by the ban against cross-nomination. Here, Appellants had the opportunity to support and vote for the candidate of their choice in the 2016 general election. In no sense were their votes diluted by the fact that [the candidate] appeared on the ballot only as the candidate of the Democratic Party. Here, Appellants had the same right as every other voter, and thus the foundational principle underlying [the Pennsylvania constitutional right to free and equal elections] is not offended.

Appellants' arguments with respect to [the write-in exception do] not warrant relief. . . . [A] successful write-in candidate may be declared the winner of a primary election. . . . [T]he potential for fusion by a successful write-in campaign is not limited to major party candidates. The same may be accomplished by a political body. Even in a situation where one candidate appears on a ballot with two major party designations due to write-in votes in a primary election, . . . voting rights in the general election are not affected because a voter supporting such a candidate is not in a position superior to the voter casting his ballot for a candidate having a single political designation. In such scenario, the vote is counted once.

Majority Opinion at 19-20 (internal citations and quotations omitted).

The Court's reasoning, although certainly one way to conceive of vote dilution, ignores that the anti-fusion provisions not only make it practically more difficult for candidates to seek the combined nominations of a minor party and major party than of two major parties, but may also practically prevent third parties and third-party aligned voters from nominating their first-choice candidates, and practically force third-party voters to choose between supporting their preferred candidate (in the hope that he or she wins the election) or their party's nominee (in the hope that they might improve their ballot status). As Justice Wecht, joined by Justice Donohue, explained in some detail in his concurring and dissenting opinion:

Robert, a self-identified “centrist,” seeks the nominations of both the Democratic and Republican parties in his 2022 campaign for Governor of Pennsylvania. A lifelong Democrat by registration, he pursues that party's nomination by taking the steps necessary to secure a place on that party's primary ballot. To do so, he must collect two thousand signatures in the three-week period between the thirteenth Tuesday before the primary election and the tenth Tuesday before the primary. A longtime Democratic politician, he collects the signatures with ease. Meanwhile, Robert vigorously makes his case for a write-in vote to Republican voters. With a crowded Republican field from which no frontrunner has emerged as the primary approaches, Robert's effort gains traction.

Roberta, also a long-time registered Democrat but of a more liberal bent, also enjoys enough party support to believe that she would defeat Robert for the party's nomination in the same race were she to appear on the Democratic Party's primary ballot. However, by Roberta's calculations, a candidate who runs as a more liberally-inclined Democrat in the general election will face an uphill electoral battle against the Republican nominee, especially because a third party, True Blue, recently has emerged to advocate a more aggressive approach to certain policy positions associated generally with the Democratic [P]arty and has gathered enough support for its nominees to have acted as spoilers in recent races by siphoning off Democratic votes. Thus, Roberta also seeks the support of this upstart party, which remains a political body under state law subject to the more burdensome signature requirements that apply to such a body. A substantial majority of the True Blue rank and file, for their part, believe that Roberta best embodies the party's collective values, and embrace her desire to seek the nomination in tandem with that of the Democratic Party.

If Roberta sought only the True Blue nomination, she would have from the tenth Wednesday before the primary until the second Friday after the primary (or just shy of twelve weeks) to collect a number of signatures equal to two percent of the largest vote cast for any elected candidate in the state at the last state-wide election in order to secure ballot placement statewide on True Blue's behalf, bring all necessary papers together, and submit them to the Secretary of the Commonwealth. But because she also seeks the Democratic Party nomination by write-in vote (her only option if she wants the True Blue nomination), the time period that she has to collect signatures in furtherance of True Blue's nomination is foreshortened by eleven days, because if she is successful in her write-in campaign for the Democratic nomination on primary day, she forfeits the right to submit True Blue nomination materials thereafter. Thus, she must collect, organize, and validate her petitions in the ten weeks preceding the primary, to be held the third Tuesday in May, effectively forfeiting nearly two post-primary weeks that she otherwise would have to secure the tens of thousands of signatures in support of her True Blue nomination to ensure a place on the general ballot as that party's nominee. Moreover, at least thirty days before the primary, she must renounce her Democratic voter registration, which will do her no favors in her write-in campaign for that party's nomination, especially against a formidable candidate like Robert.

Knowing all of this in advance, Roberta faces a wrenching choice. If she pursues the True Blue nomination, not only does she risk failing to secure the Democratic nomination by write-in, where she might have prevailed had she appeared on the ballot, but she also risks failing in her effort to secure the requisite signatures in a somewhat shorter period of time than the General Assembly has seen fit to provide political-body candidates. Moreover, if she succeeds in her write-in campaign, but fails to collect sufficient signatures in advance of the primary, she simultaneously will forfeit her eligibility to secure the nomination of the True Blue party, deny the True Blue party the ability to nominate its first-choice candidate, and leave True Blue with less than two weeks to collect signatures for a second-choice nominee, very likely resulting in True Blue fielding no nominee at all. And even if True Blue somehow manages to nominate a second-choice candidate, those among its members who prefer Roberta in principle will be forced to choose between supporting their preferred candidate or their preferred party in the general election.

Although Robert and Roberta each seek to utilize the [write-in] exception, and theoretically may do so, the decisions and logistical challenges that Roberta faces manifestly are more onerous than those Robert confronts. The differences arise directly from the statutory distinctions between the nomination requirements that apply to major parties and those that apply to minor parties, which work in concert with the [write-in] exception to impose a substantial practical disadvantage upon candidates seeking minor party-major party cross-nominations.

Concurring and Dissenting Opinion of Wecht, J., at 12-15 (footnotes omitted).

Indeed, historical research reveals that, although there was robust activity by third-parties (including, at one time, each of the then-non-dominant Democratic and Republican parties) in American politics, in the late 19th- and early 20th- century, Republicans in the Midwest, and, later, major-party politicians in Pennsylvania and throughout the nation adopted the anti-fusion provisions for the very purpose of deflating those interested in third parties, to the degree that one Detroit newspaper wryly referred to then-pending anti-fusion legislation as “the law providing for the extinction and effacement of all parties but Democratic and Republican.” Peter H. Argersinger, “A Place on the Ballot”: Fusion Politics and Antifusion Laws, 85 Amer. Hist. Rev. 287, 304 (1980).

Second, although the Court's narrow view of vote dilution is not inherently incorrect, it is a contraction of its conception of the term, nary a year and a half earlier, inLeague of Women Voters v. Commonwealth, 178 A.2d 737 (Pa. 2018) (“League”). The Court in League, in an opinion authored by Justice Debra Todd, and joined by Justices Donohue, Dougherty, and Wecht, conducted a thoroughgoing review of the history of the right to free and equal elections, tracing its roots back to political struggles between geographic, religious, political, and even socioeconomic sects using various legal mechanisms to establish their political dominance, see League, 178 A.2d at 804-09, before explaining that the establishment and constitutionalization of the right to free and equal elections was meant to put an end to those sectarian power struggles:

When viewed against the backdrop of the intense and seemingly unending regional, ideological, and sectarian strife detailed above, which bitterly divided the people of various regions of our state, this provision must be understood then as a salutary effort by the learned delegates to the 1790 [constitutional] convention to end, once and for all, the primary cause of popular dissatisfaction which undermined the governance of Pennsylvania: namely, the dilution of the right of the people of this Commonwealth to select representatives to govern their affairs based on considerations of the region of the state in which they lived, and the religious and political beliefs to which they adhered.

Id. at 808-09. The court went on to hold that General Assembly's 2011 Congressional Redistricting Plan, a partisan gerrymander which created Congressional districts maximizing the power of Republicans and minimizing the power of Democrats in the Congressional delegation as a whole, violated the right to free and equal elections.

In this author's view, the constructions of “vote dilution” in WFP and League are incongruous. Although the WFP majority certainly abided by League's language, its opinion sharply retreats from its substance: that a currently dominant political group may not use the law to solidify its political power. Indeed, had the WFP majority's conception of vote dilution prevailed in League, one readily imagines that the 2011 Plan would have passed constitutional muster: nothing in the 2011 Plan prevented any voter from selecting his or her candidate of choice in the general election, and, frankly, the 2011 Plan's essentially statistical methods of vote dilution would appear significantly more attenuated than those the anti-fusion provisions employ. Indeed, Justice Mundy advocated as much in her League dissent. See id. at 834 (Mundy, J., dissenting).

It will be interesting, not to mention important, to see how this line of jurisprudence develops. On the one hand, if the WFP majority's interpretation of vote dilution prevails, it will have to deal with League in the upcoming 2021-round of redistricting challenges and face (new) charges from Harrisburg Republicans that League was merely meant to help Democrats in the 2018 midterm Congressional elections. On the other hand, if League is revived, it will have to do better to apply it faithfully in what will likely be innumerable challenges to election provisions from divergent signature requirements to the major/minor-party framework itself designed to protect major parties from third-party involvement.

Neither option is likely to please Harrisburg, but the latter just might please those who drafted Pennsylvania's Constitution.

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.

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August 2019 Docket Review

This month, the Court issued 7 precedential opinions (linked below) and 2 orders granting allocatur.

On the opinion side, the Court continues on its course of striking a more balanced approach to criminal procedural rights and tort liability than its earlier, more conservative iterations. An interesting feature of its movement in this regard is that it is incremental and a bit coltish: for example, although Foster and Feleccia resolve theretofore unclear questions in favor of probationers' procedural rights and negligence liability, respectively, both occasioned numerous concurring opinions that give practitioners and future Courts plenty of room to reexamine them.

One reason may be the Court's Internal Operating Procedures, which provide that the votes of 3 Justices are sufficient to grant a discretionary appeal, as compared to the 4 necessary to create a holding and dispose of the appeal. In practice, this means that 3 Justices motivated to decide a question or reconsider an earlier decision are, to some degree, able to force the issue without the support of a majority of Justices, which, in turn, sometimes motivates other Justices to author narrower responsive opinions.

Another reason may be a matter of the Justices' particular judicial philosophies. Although a court of last resort needs a majority legal holding for its decision to have meaningful effect beyond the immediate case, many of the Justices appear to favor, at least at present, expressing a vision of the law over forming consensus. It should come as no surprise that this approach is more appealing to Justices who are likely to have a longer tenure on the Court, and, thus, may see the fruits of the jurisprudential seeds they are now planting.

On the allocatur side, the Court's grant of allocatur in Woodford looks like another indicator that it is winnowing away at administrative agency deference. (For more examples of this trend and possible motivations, check out our July 2019 Docket Review.) Woodford appears to pit two longstanding canons of statutory interpretation — the rule of lenity and administrative deference — against one another, and it is difficult to see how the rule of lenity, which has its underpinning in the right to notice and due process — can be subordinated to administrative deference, which is largely a prudential doctrine. Depending on how you view it, this erosion of administrative deference either fights industry- and political- capture of administrative agencies in favor of the rule of law, or weakens democratic in favor of judicial power. (For what it's worth, I tend to favor the former view, particularly in a state where electoral demographics increasingly favor political outcomes consistent with the current Court's likely course, and where, in any event, the Justices are themselves elected.) Either way, it will be interesting to see how the Court balances its role as the arbiter of the law with its lack of expertise in, for example, environmental science. Stay tuned.

Precedential Opinions

Allocatur Grants

  • Sivick v. State Ethics Commn., 118 MAL 2019 (granting review to determine whether, under the Public Official and Employee Ethics Act, (1) the State Ethics Commission may order a public official or employee to pay restitution for an unethically obtained financial benefit to his or her immediate family members and (2) whether, under the Act, a public employee's administration of payroll records of employees including his or her family member constitutes a conflict of interest).

  • Woodford v. Pa. Ins. Dept., 172 MAL 2019 (granting review to consider (1) whether the Commonwealth Court erred in applying principles of administrative-agency deference, rather than the rule of lenity, to a penal insurance statute; and (2) whether the Commonwealth Court erred in holding that the petitioners were not entitled to summary judgment where their opponents did not respond to their motion therefor)

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.

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Corrie Woods Corrie Woods

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).

  • 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).

  • 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).

  • 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)

  • 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).

  • 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).

  • 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).

  • 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).

  • 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).

  • 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).

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.

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Corrie Woods Corrie Woods

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.

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