October 2025 Docket Review

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

On the opinion side, it is a good month for the civil defense bar. In Wunderly, Yoder, and Gidor, the Court issued decisions limiting (or declining to expand) civil liability in a few areas. In Wunderly, the Court held that the Mental Health Procedures Act, which the Court has held creates a cause of action for substandard mental health treatment but also provides immunity unless the defendants are grossly negligent, applies not only to mental health treatment, but also to other treatment coincident to mental health treatment. In this author’s view, the statute, originally a measure designed to promote deinstitutionalization, was intended to focus on institutionalization and protect mental health practitioners in cases where they perhaps erroneously, but not grossly negligently, discharged patients, not to create a cause of action with respect to the quality of treatment itself, which is generally common-law negligence issue. Although this interpretation was foreclosed years ago by the Court’s decision in Goryeb v. Dept. of Pub. Welf., 575 A.2d 545 (Pa. 1990), subsequent decisions adopting broad interpretations of the act may now serve to limit, rather than supplement, the common law in mental health negligence settings absent legislative intervention.

Why legislative intervention? The Court’s decision in Yoder explains the point well. In that case, the Court addressed several questions related to the statutory employer doctrine in the context of workers’ compensation benefits, and, specifically, whether it should override earlier, (probably?) incorrect, interpretations of the Act limiting those benefits. The Court, in an opinion by Justice Brobson, reiterated the limits on its interpretive power. The Court identified that the doctrine of stare decisis is perhaps at its zenith in the context of statutory interpretation, in part based on the doctrine of legislative acquiescence — i.e., the notion that when the Supreme Court interprets a statute, the and the legislature doesn’t amend it, the legislature has effectively agreed with the interpretation — and held that the plaintiffs had not provided a sufficiently special justification for overruling its earlier interpretations.

For my part, I am not convinced that legislative acquiescence is a reality-based doctrine. Even assuming every legislator were to read every one of the Supreme Court’s decisions — or maybe SCOPAblog summaries? — it does not follow that their failure to legislative abrogate an interpretation amounts to agreement with them. The Legislature is a collective body, and its “decisions” are less rooted in the subjective views of legislators on particular legal issues and more based on political will and priorities. And whether there is a political will or priority to adopt a statute or interpretation of a statute in the first place is a different question than whether there is a political will or priority to override a Supreme Court’s decision. The legislative acquiescence doctrine in this regard is less about legislative acquiescence as a descriptive matter, and more a normative statement that the Court will generally address a statutory interpretive issue once, and if litigants are dissatisfied, they should seek a legislative solution absent some compelling reason beyond disagreement. Justice Brobson’s opinion will be a benchmark case for litigants attempting to revisit statutory interpretation questions for some time.

Precedential Opinions

Commonwealth v. Phillips, 5 MAP 2025 et al. (Opinion by Mundy, J.) (holding sentence that failed to provide credit for time served in a probation-detainer context illegal)

Toland v. Pa. Bd. of Prob. & Parole, 11 EAP 2024 (Opinion by Donohue, J.) (holding Pennsylvania Board of Probation and Parole lacked authority to establish an evidentiary privilege in its proceedings)

Wunderly v. St. Luke’s Hosp., 119 MAP 2023 (Opinion by Mundy, J.) (holding that the immunity provision of the Mental Health Procedures Act applies to non-mental-health treatment incident to mental health treatment)

• See also Dissenting Opinion by Donohue, J.

Commonwealth v. Jenkins, 36 MAP 2024 (Opinion by Todd, C.J.) (holding that an applicant for ARD’s failure to disclose a pending arrest not inquired about in the application could not form the basis for a decision to revoke participation in ARD)

• See also Concurring Opinion by Wecht, J.

Yoder v. McCarthy Construction, Inc., 43 EAP 2024 (Opinion by Brobson, J.) (declining to overrule earlier workers’ compensation decisions absent a special justification to do so)

• See also Concurring Opinion by McCaffery, J.

Gidor v. Mangus, 24 WAP 2024 (Opinion by Donohue, J.) (holding that the one-year limitations period in the Home Inspection Law is a statute of repose)

• See also Concurring Opinion by Wecht, J.

Allocatur Grants

Chris Eldredge Containers, LLC v. Crum & Foster Specialty Ins. Co., 267 MAL 2025 (granting review to consider the proper construction of an insurance policy’s auto exclusion endorsement)

Commonwealth v. Jackson, 172 EAL 2025 (granting review to consider whether the the offense of possessing instruments of crime requires evidence of possession under circumstances not manifestly appropraiate for lawful use)

Special Comment on Retention

Hi, everyone —

I’m writing today to ask those of you in Pennsylvania to vote YES to retain Justices Christine Donohue, Kevin Dougherty, and David Wecht, and Judges Alice Beck Dubow and Michael Wojcik, in Tuesday’s election.

tl;dr: The short version of this message is that judges should be retained if they are faithfully attempting to interpret and apply the law, and all of these Justices and Judges pass that test easily.

Here's the long (okay, really long) version.

Maybe the most central principle of American and Pennsylvanian republicanism is that nobody is above the law. Republic translates roughly to the “public thing” – a government of the people, their intent expressed in the law. The republic, in other words, is the rule of law. Without the rule of law, you don’t have rights – at least not if they are unpopular among those who happen to be in power at the time.

The principle was perhaps first really won in the year 1215 in England at the Battle of Runnymede, when rebellious nobles forced King John to confirm that he, too, was subject to the law and could not violate their liberties. Although judges began as essentially advisors to a sovereign English monarch, over the centuries, they gradually gained independent authority. And in 1701, the English Act of Settlement formally recognized that authority, providing that judges would continue to hold their offices not “at the sovereign’s pleasure,” but, rather, “during good behavior” – that is, unless they were impeached. The idea was that the law must be followed, and judges must be free to follow it without fear of royal punishment.

The concept of judicial independence gained even stronger force in the fledgling United States. One of the Declaration of Independence’s grievances identified that King George III had violated judicial independence by “ma[king] Judges dependent on his Will alone, for their Tenure of their Offices, and the Amount and Payment of their Salaries.” And the Constitution created three separate and coequal branches of government: a legislature elected by the people to make law, an executive to enforce it, and a judiciary to interpret it and apply it in cases. It created a framework of checks and balances, including that the legislature’s conduct and the executive’s conduct could be challenged in the courts if it violated the Constitution or the law. Like the Act of Settlement, the Constitution provided that judges would serve for life “during good behavior” – again, unless they were impeached for high crimes and misdemeanors.

Why? The Framers knew that the legislative and executive branches are instruments of political will. Without an independent judicial branch focused on faithfully interpreting and applying the law, judges would have to answer to politics, and the Constitution and the law would only apply when the outcome was popular. And if the Constitution and the law only apply when the outcome is popular, there is no Constitution, and there is no law. There is only what is popular at a given moment.

Pennsylvania started out on the same trajectory. Colonial Pennsylvania’s judges served at the King’s, and at the colonial governor’s, pleasure, no doubt an inspiration for the Declaration of Independence’s complaint. As the American Revolution broke out, Pennsylvania took measures to create judicial independence – giving judges fixed, long, and, for a time, lifetime tenure, subject to removal for misbehavior in office. But in the 19th century, populists rolled the reform back. In ensuing constitutions, judges were to be elected and their tenure decreased.

In 1968, Pennsylvania adopted the current framework as an attempt to further foster judicial independence: partisan election, ten-year terms, and nonpartisan “retention” elections in which candidates do not run as members of a political party and do not face opposing candidates running as members of political parties, but instead face a “yes or no” vote for another term. Reformers hoped that the measure would mean that once judges were in office, they could faithfully interpret the law, not worry about the prospect of seeking partisan support or facing partisan ire in an upcoming election.

They were partly right. For years, sitting judges standing for retention did not have to raise much money, did not have to compete in partisan primaries, and could generally count on the fact that they were not identified as partisans to protect them from opposing partisans in the general election. They could also count on the fact that the voters who cared about judicial elections knew about, and appreciated, the value of judicial independence: that judges need room to do their jobs without worrying about what is popular.

In short, it is a fundamental American and Pennsylvanian value that judges who are faithfully attempting to interpret and apply the law should continue to serve regardless of whether their decisions are popular. Because if they are making decisions based on the law, of course some of them will be unpopular. And if they are making decisions based on what is popular, there is no law.

Against this backdrop, Justices Donohue, Dougherty, and Wecht, and Judges Dubow and Wojcik, should be retained. I have spent the bulk of my professional life thinking about the Pennsylvania appellate courts. Shortly after law school, I accepted a position as a clerk to a different Justice of the Pennsylvania Supreme Court, which, during my first few years there, had several Justices mired in scandal. When I began, one Justice was being prosecuted for alleged campaign finance law violations, and she was ultimately convicted and left the Court. Later, it was revealed that two other Justices were involved in sending racially, sexually, and otherwise insensitive emails in a group of people including attorneys who appeared before the Court. They, too, left the Court.

Shortly thereafter, in 2015, Justices Donohue, Dougherty, and Wecht were elected to the Court, and Judges Dubow and Wojcik were elected to the lower intermediate appellate courts. In the course of my work, I had the opportunity to see their intelligence, their temperament, and their commitment to interpreting and applying the law regardless of its popularity. These qualities have perhaps been no more on display than in the Justices’ frequent interpretation of the Pennsylvania Constitution, which requires them to delve deeply into the text, structure, history, and prior interpretation of provisions that have gone essentially dormant in some cases for centuries. This task requires countless hours of research, incredibly thoughtful consideration, and hundreds of pages of writing. The Justices in this area are at the vanguard of the American legal tradition when it comes to protecting Pennsylvanians’ individual rights. And although Judges Dubow and Wojcik are not charged with that task (the Supreme Court generally decides unaddressed legal issues, while the intermediate courts generally apply the law to particular cases), their work evinces equal intellectuality and commitment to the rule of law, deciding thousands of cases on two of the nation’s busiest courts. In short, Justices Donohue, Dougherty, and Wecht, and Judges Dubow and Wojcik, capably and faithfully attempt to interpret and apply the law to the cases before them. They should be retained.

Unlike in prior years, however, this year the Justices and Judges cannot count on the fact that they were not identified as partisans to protect them from opposing partisans in the general election. Pennsylvania’s richest billionaire, among other reactionary activists, has funded a “vote no” campaign attacking the Justices and, for the sake of simplicity I suppose, Judges Dubow and Wojcik as well. Whether because the Justices’ decisions have held politicians and major corporations accountable to individual Pennsylvanians’ rights, or out of simple partisanship, the partisans have spent millions on ads and mailers and social media, and nearly all of them center on baseless and misleading descriptions of the Justices’ decisions.

Most of the claims are designed to rile up partisans who don’t like allegedly liberal outcomes of some decisions. One of the more remarkable claims is that the Justices “made millions while closing down Pennsylvania businesses during COVID,” suggesting that the Justices have corruptly profited off of coronavirus-related shutdowns. That claim in particular refers to the Justices’ annual salaries over ten years (far lower than what any of them would make in private practice), which has no relationship to those shutdowns, which the Legislature authorized and then-Governor Wolf ordered, but the hope is that voters will just see the ad and get a vague sense of corruption. Another is that the Justices “let Bill Cosby free.” That claim omits that in Cosby’s sexual assault case, the local, elected District Attorney entered into a deal in which he agreed not to prosecute Cosby in exchange for his willingness to testify in a civil case, and the Court’s only decision was that the District Attorney’s Office was required to stand by its word. It also omits that Justice Dougherty did not join that decision. The hope here is that voters will just see the ad and get a vague sense that the Justices are somehow too protective of sexual offenders.

The activists are also engaged in an attempt to mislead partisans of a more liberal political alignment. Some mailers sent to Democratic voters refer to “term limits” and imply that a “no” vote actually concerns the conservative United States Supreme Court. Obviously, it doesn’t. Others claim that it would “end gerrymandering,” when, in actuality, the Justices have already issued a decision ending gerrymandering in the Commonwealth of Pennsylvania.

These craven partisan attacks on sitting judges, if successful, could have disastrous effects. First, as a practical matter, if the Justices and Judges are not retained, they will leave the bench in two months. They will take their work on pending cases, their experience that could have been brought to bear in future cases, and their staff members and clerks, many of whom have decades of knowledge and experience in serving Pennsylvania judges and courts of all partisan orientations. That alone is a tremendous loss for the quality of our law.

And if that is not enough, if the Justices and Judges are not retained, there will be a four-member Supreme Court for a period of nearly two years and a decreased complement on the intermediate appellate courts as well. (Although Governor Shapiro could conceivably appoint temporary Justices, his appointment would have to be confirmed by the Republican-led Senate, and that is a highly unlikely prospect.) That means that each existing Justice’s and Judge’s chambers will have to do more work with the same resources. In other words, a smaller court is a considerably less efficient court. And more concerning, the new complements of Judges raise the prospect of tied decisions that leave the law in areas of major public importance in a state of chaos, with no one to provide a definitive resolution. I worked for a four-member Supreme Court for a period of a few months, which was hard. A four-member Court for a period of two years is inconceivable.

But perhaps the most dangerous result is that we will have crossed a new boundary in our politics that would roll back the clock by nearly a century: we will have had partisan activists plot and execute a successful coup on judicial independence and the rule of law, which is to say, on all of our rights. Its success will lead to more partisan retention elections – for example, in 2027 and 2029, when two Justices elected as Republicans will stand for retention – and it will put sitting judges in a position of having to make decisions thinking less about the law, and more about politics. That is bad for us all.

Humanity has spent centuries fighting for a system that holds everyone accountable to the law, in which every individual has rights. We cannot, and should not, give it away to partisan control.

Please vote YES – and encourage your friends and colleagues to do the same – to preserve the independence of Pennsylvania’s courts, the rule of law, and all of our rights.

Yours,

CW

September 2025 Docket Review

This month, the Court issued 9 precedential opinions and 9 grants of allocatur, summarized and accessible below.

On the opinion side, there’s a lot going on. In the category of civil cases, both Tranter and Philly Trampoline Park got a lot of attention. In Tranter, the Court addressed a Superior Court decision that put some judicial glosses on the doctrine of forum non conveniens and reversed a trial court’s order transferring a case to another county. That doctrine has come to the forefront in civil cases in part due to the Court’s recent rollback of the erstwhile medical-malpractice-specific venue rule, which limited venue to counties in which said malpractice occurred. In its earlier precedent, including perhaps one of the best named cases in Pennsylvania history, Cheeseman v. Lethal Exterminator, the Court embraced a broad, flexible version of the doctrine which gave significant discretion to trial courts to determine whether the plaintiff’s chosen forum was oppressive or vexatious. In Tranter, the Superior Court added what seemed like additional rules (or at least special considerations) on top, including the availability of remote technology for depositions and the like, and qualitative assessments of witness importance. The Court found these glosses to be unwarranted, emphasizing, for example, that there is no right to force remote depositions under the Rules of Civil Procedure, and regirding its broad, flexible approach. In a concurring opinion, Justice Mundy faulted the majority for overemphasizing the notion that travel is vexatious, which, regardless of whether the majority did, only serves to underline that the overall analysis is fact-specific. Tranter in this regard has been called a win in some measure for the civil defense bar, who had feared the Court adopting the Superior Court’s glosses as authoritative. But it is probably more of a win for the courts, whose task in the context of forum non conveniens now has fewer rules and more discretion.

On the other hand, in Philly Trampoline Park, the Court found that parents’ execution of arbitration agreements on their children’s behalf are not enforceable against the child. Notably, the decision was not based on characteristics of arbitration as such, which would likely run afoul of United States Supreme Court precedent interpreting the Federal Arbitration Act, but, rather, based on the relationship between parents, their children, and the law as something of an independent guardian, as it pertains to children’s property interests in potential claims. The decision is a major win for plaintiffs and the plaintiffs’ bar.

I’m also interested in Lewis, which involved a longstanding issue in the law of search and seizure. At the risk of turning this into a history blog, protections against search and seizure arose in large part due to the British Crown’s use and abuse of general warrants and writs of assistance in the colonies, and so a hallmark of search and seizure law has been a requirement of an individualized basis to detain or search a particular person or place. Over the years, the requirement became less and less individualized and particular by allowing consideration of “circumstances,” including, most relevant here, whether an individual’s conduct occurred in a “high crime area.” And in Illinois v. Wardlow (2000), the U.S. Supreme Court held that “headlong flight” in a “high crime area” constituted reasonable suspicion to subject someone to an investigative detention. And in the years since Wardlow, “headlong flight” has turned into an vanishingly small amount of “evasive action.” And, central in Lewis, there is likely nowhere in the world that someone will not testify is a “high-crime area.” In Lewis, the majority attempts to put the breaks on this latter problem, “urg[ing] suppression courts to review highcrime area designations with caution and emphasize that merely intoning buzzwords is never sufficient to prove an area is high in crime.” Which is an improvement in theory, but difficult to expect will occur in practice. Justice Wecht, in a concurring and dissenting opinion, offered a view that treating individuals differently based on their environs effectively subjected rich and poor to different constitutional standards, obviously an anathema to the notion of constitutional equality. In fact he specifically invoked a quotation from Orwell’s 1984 that “all Animals are equal but some Animals are more equal than others,” calling to mind the Anatole France quote, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” Justice Donohue, in a dissenting opinion, reiterated an earlier view that the Commonwealth had failed to prove with competent evidence (i.e. beyond buzzwords) that the area in question was, in fact, a “high crime area,” and that whether or not an area was “high crime” was irrelevant to the question of individualized suspicion. It remains to be seen whether and to what degree the new Lewis standard works, or doesn’t.

Finally, in Ctr. for Coalfield Justice, the Court recognized that county boards of election have a duty to notify voters who have cast facially invalid absentee or mail-in ballots of their invalidity so as to allow them to cast provisional ballots. The decision is not a shock, given the Court’s earlier holding that those voters are entitled to cast provisional ballots, but is part of the ongoing battle over voting rights and election law generally, in which the Court has largely issued decisions consistent with the so-called “democracy canon,” to promote the franchise, rather than to stifle it.

On the allocatur side, I’m interested in Leiser and Devore, in which the Court will address claims of wrongful termination in violation of public policy. In Weaver v. Harpster (2005), the Court put together a fairly narrow path for claims of wrongful termination in violation of public policy, emphasizing that the public policy in question had to be largely unimpeachable, and, in these two cases, the Court appears poised to revisit and/or apply that standard in the context of two statutes relating to liquor regulation and emergency medical services. The former is arguably controversial, but the latter probably isn’t. It will be interesting to see whether and how the Court gives guidance in this area, particularly given that one facet of its work over the several years has been about the value of work and workers. I’m also interested to see Livingston, which involves a challenge to a Philadelphia-specific gun control measure as Commonwealth-sanctioned discrimination against constitutionally protected exercise of gun rights. Although the battle about gun violence is largely pitched on partisan terms right now, this Court has been fairly friendly, all things being equal, to gun rights, and has considerably refocused Pennsylvania’s former “equal protection” jurisprudence into antidiscrimination jurisprudence under a more rigorous, Pennsylvania-specific rubric. The statute may not be long for this world.

Additionally, I would be remiss if I did not mention the Court’s adoption of an interim policy for the use of generative AI by judicial officers and their staff alike. The policy permits use of generative AI “i. to summarize documents; ii. to conduct preliminary legal research, provided the GenAI tool used was trained on a comprehensive, up-to-date collection of reputable legal authorities; iii. to draft initial versions of documents, such as communications, and memoranda; iv. to edit and assess the readability of public documents; and v. to provide interactive chatbots or similar services to the public and self-represented litigants.” Whatever your opinion on the use of AI in litigation, there is now the added dimension of wondering whether the Court has used it as well.

Precedential Opinions

Housing Auth. of City of Pgh. v. Nash, 16 WAP 2024 (Opinion by Donohue, J.) (holding a public-housing lease permitted eviction of tenants based on third-party crimes)

• See also Dissenting Opinion by Wecht, J.

Natl. Hockey League Players Assn. v. City of Pgh., 20 WAP 2024 (Opinion by Wecht, J.) (holding Pittsburgh’s “jock tax” on income non-residents earn performing at public stadiums violates the Pennsylvania constitutional Uniformity Clause)

• See also Concurring Opinion by Donohue, J.

• See also Concurring Opinion by Mundy, J.

Commonwealth v. Smith, 35-36 EAP 2024 (Opinion by Donohue, J.) (holding a trial court permissibly refused to inquire whether jurors would credit the testimony of an alleged child sexual assault victim as such)

• See also Concurring Opinion by Dougherty, J.

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

Santiago v. Philly Trampoline Park, LLC, 24-25 EAP 2023 (Opinion by Donohue, J.) (holding parents’ execution of arbitration agreements does not render them enforceable with respect to their child’s claims )

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

Commonwealth v. Lewis, 37 EAP 2024 (Opinion by Dougherty, J.) (reaffirming trial court discretion in the context of determinations that an area is a “high crime” area but requiring increased caution)

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

• See also Dissenting Opinion by Donohue, J.

Tranter v. Z&D Tour, 18-32 EAP 2024 (Opinion by Wecht, J.) (rejecting several judicial glosses on forum non conveniens doctrine)

• See also Concurring Opinion by Mundy, J.

Interstate Gas Supply, Inc. v. Pub. Util. Commn., 10 MAP 2024 (Opinion by Brobson, J.) (holding that an electric distribution company may engage in “on-bill billing” offering its own non-commodity goods and services to customers while denying electric generation suppliers the option)

• See also Concurring Opinion by Mundy, J.

Green Analytics North, LLC v. Pa. Dept. of Health, 76 MAP 2023 (Opinion by McCaffery, J.) (holding an administrative requirement that growers and processors of medical marijuana employ separate labs for testing harvested marijuana and processed marijuana was within statutory authority)

• See also Dissenting Opinion by Wecht, J.

Ctr. for Coalfield Justice v. Washington Cnty. Bd. of Elections, 28 WAP 2024 (Opinion by Dougherty, J.) (holding election boards must notify voters who cast invalid absentee or mail-in ballots of their invalidity so as to allow them to cast provisional ballots)

• See also Dissenting Opinion by Mundy, J.

• See also Dissenting Opinion by Brobson, J.

Allocatur Grants

Commonwealth v. Farlow, 132 EAL 2025 & Commonwealth v. Parker, 147 EAL 2025 (granting review to consider the availability of pre-trial speedy trial rules to prosecutions for misdemeanors in Philadelphia)

Commonwealth v. Holley, 71 EAL 2025 (granting review to consider whether modification of an already-served sentence violates federal and/or Pennsylvania constitutional prohibitions on double jeopardy when the sentence was illegal)

In re: Appointment to Fill a Vacancy in the Office of County Commissioner, 420 MAL 2025 (granting review to consider whether home rule municipalities may adopt their own procedures for the appointment of county comissioners)

Commonwealth v. Livingston, 112 EAL 2025 (granting review to consider whether the state criminalizing carrying a firearm in Philadelphia violates the federal constitutional prohibition on states denying equal protection of the law or the Pennsylvania constitutional prohibition on Commonwealth discrimination in the exercise of civil rights)

Carr v. First Cmwlth. Bank, 97 MAL 2025 (granting review to consider whether a trial court had jurisdiction to review an arbitration award despite an untimely appeal because the untimeliness was caused by non-negligent happenstance)

Leiser v. Chester Valley Golf Club, 654 MAL 2025 (granting review to consider a claim of wrongful termination in violation of public policy underlying the Pennsylvania Liquor Code)

Commonwealth v. Lowrey, 169 MAL 2025 (granting review to consider whether the Vehicle Code requires a motorist to signal before turning onto a roadway from a trafficway)

Mutchler v. Pa. Ofc. of Admin. (Ofc. Open Records), 196 MAL 2025 (granting review to consider the scope of public records subject to disclosure in the context of government agents and contractors)

Devore v. Metro Aviation, Inc., 36-37 WAL 2025 (granting review to consider claim of wrongful termination in violation of public policy underlying the Emergency Medical Services System Act)

Other

In re: Interim Policy on the Use of Generative Artificial Intelligence by Judicial Officers and Court Personnel, 643 JA (adopting an interim policy on the use of generative AI by judicial officers and court staff, available here)

August 2025 Docket Review (and Special Comment)

This month, the Court issued 3 precedential opinions and 5 grants of allocatur, summarized and accessible below.

Although I would ordinarily dive a bit deeper into the cases, I want to use this space for what seems like a more important purpose this month. As anyone reading already knows, several of the Justices are standing for retention this year, and, politics being what it is, there are some claims about the Court being circulated that are heavy on rhetoric and wrong on facts.

One of the more brazen ones is a sustained attack on the Court’s 2018 decision in League of Women Voters v. Commonwealth, which held that the then-existing Congressional district plan violated the Free and Equal Elections Clause of the Pennsylvania Constitution, part of Pennsylvania’s organic charter since 1776, which prohibits the use of state power to artificially inflate one group’s political power or diminish another’s.

The basic theory of the attack is that the Court is partisan and intervened to help Democrats win a few more Congressional seats in the 2018 midterm elections. By way of example, this week, State Senator Dan Laughlin, a self-described moderate Republican from Erie County, authored an editorial in a Pittsburgh newspaper (that I will not name so as to avoid crossing a picket line of journalists, on Labor Day no less) comparing Texas’ Republicans’ current mid-census redistricting bill, which is avowedly designed to boost the number of Republican Congressional seats, with the Court’s 2018 decision that the then-existing map was unconstitutional. Senator Laughlin goes on to proclaim that redistricting is inherently partisan, and that instead of “chasing the illusion of a purely non-partisan process,” “we should accept that partisanship exists and design a system that makes it transparent, balanced and competitive.” Senator Laughlin proposes a process whereby the “two major parties” “agree to a strict set of parameters that require districts to be contiguous and reasonably compact, mandate compliance with the Voting Rights Act and other applicable laws and preserve communities of interest where possible,” then, “within those guardrails, each side” can take turns and “use its ‘pick’ to represent its priorities.”

I hope that Senator Laughlin is well-meaning and earnest in seeking a fairer electoral system. Indeed, I think it is consistent with some of his earlier work, like advocating for the inclusion of independent voters into our primary system. But the overall theory that League was partisan and this particular comparison get the facts wrong and miss the point: people, not politicians and parties, are supposed to be selecting the government.

Let’s start with the facts. in 2011, Pennsylvania Republicans created a redistricting map as part of “Project REDMAP,” a nationwide plan to use backlash over the election of President Barack Obama to take control of state legislatures in time to adopt as many partisan gerrymanders as possible with the object of increasing Republican Congressional seats.  Because of Pennsylvania’s political geography, and the residences of incumbent Republican members of Congress, this meant that they had to dispense with ordinary redistricting criteria — for example, creating geographically compact districts and not dividing counties and municipalities into two districts — to optimize Republican advantage. As a result, the 2011 map was replete with bizarrely shaped, sprawling districts that routinely split up communities, particularly in Southeastern Pennsylvania:

By way of illustration, one district was only geographically contiguous by virtue of a nursing facility at one point and a steak-and-sea restaurant at another, and one district, the 7th, was panned in the national media as resembling “Goofy kicking Donald Duck.” These bizarre features were almost uniformly designed to either pack as many Democratic voters as possible into a single district so as to keep them out of other districts where Republicans could win, or divide Democratic voters that would otherwise win a district so that Republicans could win both. Overall, they were designed to ensure that although Pennsylvania voters were about evenly split, their votes would almost always lead to the election of far more Republicans than Democrats.

In 2018, a voting rights group, the League of Women Voters, sued the Commonwealth, arguing that the 2011 map violated the constitutional guarantee of free and equal elections by essentially using district lines to artificially inflate Republican power by artificially deflating Democratic votes. The theory had significant historical support: the Free and Equal Elections clause was first adopted in 1776 by “radical” patriots frustrated with longstanding attempts by conservative loyalists to artificially support their power: for example, the limitation of the right to vote to landowners (which kept working class voters away from the polls) and the refusal to recognize new Western counties (which, because legislative seats were based on counties at the time, kept Eastern aristocrats in power). The case proceeded to a hearing at which expert after expert testified that the 2011 plan subordinated all of the ordinary redistricting criteria to the quest for partisan advantage. Ultimately, the Court agreed with the League that dispensing with traditional redistricting criteria and diluting voters’ power to obtain a partisan advantage could not be squared with the Clause.

The Court was highly reluctant to step into mapmaking, even though the Congressional primary election was impending. Accordingly, it invited the Legislature to make a new map that complied with constitutional commands. The Legislature failed to do it. So the Court adopted a remedial map that optimized ordinary redistricting criteria and also avoided diluting votes to the extent reasonably possible so that the 2018 primary could proceed:

Anyone with vision can see the difference: creating a map optimizing ordinary redistricting criteria and avoiding vote dilution created a map without the bizarre shapes and fractures of the old one.  More importantly, there was some rough proportionality between statewide vote totals and the composition of the Congressional delegation, ableit even under the new map, Republicans still had a structural advantage: just not the totally dominating one the 2011 map engineered.

From the day the Court adopted the 2018 map, the Legislature was free to adopt a new one that complied with the law. It failed to do it.

Later, after the 2020 census, Pennsylvania lost a Congressional seat, meaning the Legislature had to draw a new plan with one fewer district, and it failed to do that as well. As a result, several groups of voters, as well as numerous political actors, based on a 1992 case where a similar impasse occurred, brought a lawsuit to ask the court’s to adopt one. The suit was initially dismissed in hopes that the legislature might act. But it failed to do so. And as time progressed, the case was refiled and heard so that a new map could be in place ahead of the 2022 primary elections. As a preliminary matter, it’s worth noting that because the 2018 decision prohibited excessive partisan gerrymandering and gave a methodology for avoiding it, virtually every party’s proposed map was relatively reasonable both in terms of observing the ordinary redistricting criteria and in avoiding vote dilution. In any event, after the case made its way to the Court, at oral argument, every Justice on the bench expressed significant discomfort at being in the position of selecting another map. And after a full day of argument by everyone interested, the Court ultimately selected a map that one of the voter groups submitted, which was designed to avoid political disruption by keeping the districts the same insofar as was absolutely necessary to comply with the law and to avoid dilution:

Another set of Justices wrote separately to explain that they would have instead adopted a map that a different group of voters designed to mathematically optimize the redistricting criteria and avoid vote dilution:

It is noteworthy that every Justice on the Court declined to adopt maps offered by partisan and governmental officials entirely.

And again, since early 2022, the Legislature has been free to adopt a map that complies with the Constitution. It has failed to do it.

At the risk of taking you all on a long walk for a brief view, the problem with the attack on the Court as partisan and Senator Laughlin’s comparison of the Texas partisan gerrymander with the Court’s decisions is that it’s just not true. The Court in League of Women Voters didn’t adopt or sanction a Democratic gerrymander at all. That would have looked something like this:

Instead, the Court’s decision stopped partisan gerrymandering in Pennsylvania in service of individual voters’ constitutional rights based on a judicially conservative, originalist reading of our Commonwealth’s constitutional text, history, and values, by stopping politicians from artificially increasing or decreasing voters’ power to turn their votes into representation. By contrast, Texas is, and other Democratic and Republican states will likely soon be, shifting it into overdrive. In short, the Court has done its level best to ensure that every Pennsylvania voter, whether a Democrat or a Republican or a third-party member or unaffiliated voter, has an equal chance at turning support for a candidate into representation. Partisan gerrymanderers elsewhere are doing their level best to make sure that they get to decide who wins and the voters support doesn’t actually matter.

Let us not confuse the cure with the disease.

With the facts out, it is easy to see that Senator Laughlin’s view that redistricting is inherently partisan suffers from a poverty of information and imagination. The Court has shown us, twice, that it doesn’t have to be. And even if the process were inherently a partisan one, Senator Laughlin’s proposal misses the point. The power to elect representatives does not belong to politicians and their parties: it belongs to the people. The problem is not that one party gets more opportunities to marginalize the other’s voters’ electoral power; the problem is that they are doing it at all. The Court’s League of Women Voters decision puts a stop to it, which, while perhaps disempowering for those charged with drawing the map, has protected the rights of all Pennsylvanian voters.

In the end, I certainly applaud Senator Laughlin’s desire for progress.  But that progress must start with a firm recognition of the truth, and truth is that the Court’s involvement in redistricting has made it better, not worse, and that it is up to the people to choose their representatives; not the other way around.

Precedential Opinions

Commonwealth v. Walker, 13 WAP 2024 (Opinion by Todd, C.J.) (holding that a trial court may permit inquiry into whether a juror can follow the principle that uncorroborated testimony alone is sufficient to permit conviction)

• See also Concurring Opinion by Wecht, J.

Penncrest Sch. Dist. v. Cagle, 31 WAP 2023 (Opinion by Mundy, J.) (reaffirming the test for whether a record is public pursuant to the Right-to-Know Law)

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

• See also Dissenting Opinion by Wecht, J.

Grant v. Grant, 18 WAP 2024 (Opinion by McCaffery, J.) (holding a joint tenant’s quitclaim deed to herself did not sever the joint tenancy)

Allocatur Grants

Whittington v. Daniels, 148 MAL 2025 (granting review to consider whether a plaintiff’s failure to timely file a complaint in a defendant’s appeal from a magisterial-district-court decision reactivates the running of the applicable statute of limitations)

Commonwealth v. Brashear, 180 MAL 2025 (granting review to consider whether the Legislature’s use of “residence” and “address” in different sexual offender registration requirements warrants acquittal of an offender who provided his building’s street address, but not his room number under the provision using “residence”)

Allegheny Cnty. v. Allegheny Cnty. Prison Employees’ Independent Union, 359 WAL 2024 (granting review to consider the jurisdiction and standard of a grievance arbitrator to evaluate whether an employer waived the issue of whether a grievance was contractually untimely)

Ansell v. Charah Solutions, Inc., 39 WAL 2025 (granting review to consider questions of administrative remedy exhaustion and equity in the context of a nuisance case)

Commonwealth v. Burse, 103 WAL 2025 (granting review to consider the Superior Court’s interpretation of the word “altered” in the context of the criminal prohibition on tampering with physical evidence)

July 2025 Docket Review

This month, the Court issued 3 precedential opinions and 4 grants of allocatur.

On the opinion side, I’m most interested in Ferguson. In an opinion authored by Justice Mundy, the Court holds that a statute that effectiely treats a defendant’s acceptance of alternative rehabiltative disposition for a charged DUI, plus a subsequent DUI, as a basis for a license suspension, comports with due process. The decision comes on the heels of the Court’s decision in Shifflett, which held that a statute treating the acceptance of ARD like a criminal conviction for purposes of a subsequent DUI sentencing violated the constitutional right to a jury trial. (The Court’s holding in Shifflet was, in this author’s view, right about the constitution, but many prosecutors, in what looked a lot like sour grapes, stopped offering or limited ARD in its wake.) Although the Ferguson case stands for little more than the fact that the General Assembly can view acceptance of ARD in conjunction with a DUI as an indicator that one’s driving privilege can be suspended, it does create some complications for what was once a relatively straightforward, graduated, DUI tier system. This is not to say that the Court should have done anything differently at all; but it would be helpful for everyone involved if the Legislature stpped in to provide a little more rationality.

On the allocatur side, I’m most interested in Jenkins, which will speak to several issues in connection with a challenge to Pennsylvania’s criminal prohibition on certain persons, primarily certain felons, possessing firearms, in light the U.S. Supreme Court’s recent (in the constitutional time scale, anyway) augmented interpretations of the Second Amendment right to bear arms, most notably New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022). Primarily, the Court will consider whether and to what degree a party challenging statute must establish that he or she is one of “the people” who have a constitutional right to bear arms to advance a challenge to a restriction on firearms ownership, and whether the criminal statute is sufficiently analogous to Eighteenth Century restrictions on firearms ownership to pass federal constitutional muster.

Interestingly, the Court also granted review of two questions that primarily sound in the Superior Court’s reasoning, rather than its result: specifically, whether the Superior Court should have raised its own analogous restrictions and whether it should have engaged in a separate, state-constitutional analysis under Pennsylvania’s constitution. The Court generally doesn’t do this. For example, there is certainly precedent for the principle that appellate courts should not raise issues sua sponte, but, even if everyone agrees on tha point, it is somewhat recursive, because one’ litigant’s or one judge’s “issue” is another’s “argument,” and sometimes changes case to case or claim to claim. The vagueness of what an issue is, particularly in waiver contexts, is be one of the most understated and important tools in the appellate court’s toolbox, but confounding to advocates. Bearing this, and the Courts’ respective roles in mind, the Court has generally been inclined to make its own judgments and leave the Superior Court’s for it’s own. Perhaps that is changing, at least in extreme cases, and the Court may be willing to talk about what an issue is.

Finally, by way of a practice note, the Court amended Rules 511 and 1113 of the Rules of Appellate Procedure to emphasize circumstances under which parties should consider filing protective cross-appeals and cross-petitions for allowance of appeal. Practitioners should read, and internalize, this, because by the time you realize you need to remember it, you may already have lost the chance.

Precedential Opinions

Commonwealth v. Anderson, 54 MAP 2024 (Opinion by Dougherty, J.) (holding that evidence that a motorist is driving a car registered to someone else alone is insufficient to establish that the motorist lacked a reasonable expectation of privacy in the car)

Ferguson v. PennDOT, 73 MAP 2022 (Opinion by Mundy, J.) (holding that a statutory scheme whereby an individual who participates in accelerated rehabilitative disposition with respect to a DUI and is later convicted of DUI sustains a license suspension does not violate due process)

• See also Concurring Opinion by Wecht, J.

In the Matter of Cappucio, 1493 DD3 (Opinion by Mundy, J.) (reinstating previously disbarred attorney)

Allocatur Grants

Wegmans Food Markets, Inc. v. Cole (WCAB), 95 MAL 2025 (granting review to consider whether provisions of the Workers’ Compensation act providing for forfeiture of benefits due to refusal of reasonable medical services includes medical advice and whether services must improve health, as opposed to stave off deleterious effects)

Commonwealth v. Phillips, 48 EAL 2025 (granting review to consider whether an officer’s indication during an interrogation that “nobody’s using anything in court” vitiates an otherwies valid waiver of Miranda rights)

Esch v. PSERS, 30 WAL 2025 (granting review to consider whether a member of PSERS may purchase service credit for creditable nonschool service if she has withdrawn her previous employer’s contributions from an out-of-state system)

Commonwealth v. Jenkins, 18 MAL 2025 (granting review to consider several issues regarding the application of recent Second Amendment jurisprudence to Pennsylvania’s persons-not-to-possess-firearms statute)

Other

Amendment of Pa.R.A.P. 511 and 1113 (clarifying the procedures for protective cross-appeals and protective cross-petitions for allowance of appeal)

POM of Pennsylvania, LLC v. Dept. of Revenue, 2 & 6 EAP 2024 (summarily affirming an order rejecting challenges to the legality of skill games but listing a companion case for oral argument)*

*This author was counsel for an amicus curiae in this matter.

June 2025 Docket Review

This month, the Court issued 3 precedential opinions and 6 grants of allocatur.

On the opinion side (kind of), I’m actually most interested in the Court’s decision (kind of) in Smith. In that case, two off-duty police officers engaged in what opposing sides might alternatively call overzealous off-duty law enforcement activity or a coordinated attack of a Philadelphia pedestrian. In a rare occurrence, Philadelphia District Attorney Larry Krasner prosecuted the off-duty officers for criminal conspiracy, assault, and recklessly endangering another person, but the Philadelphia Municipal Court and Philadelphia Court of Common Pleas dismissed the prosecution for an alleged lack of evidence of the off-duty officers’ mental state and purpose to cause bodily injury. A three judge panel of the Superior Court affirmed. The Court granted allocatur to consider whether the lower courts had applied too stringent a standard, but, ultimately was unable to come to a majority decision. Because of this, the Court issued a per curiam order indicating that the Court being evenly divided, the lower court’s opinion was affirmed by operation of law. But, strangely, there is no opinion in support of affirmance. Instead, there is simply a per curiam order implying that Justices Dougherty, Mundy, and Brobson would have affirmed. Meanwhile, Justice Wecht, joined by Chief Justice Todd and Justice Donohue, authored a concurring opinion painstakingly explaining how the lower courts strained to dismiss the case by crediting testimony and making inferences favorable to the defendants, which is verboten at the preliminary-hearing stage. And Justice Donohue, in her own concurrence, joined by Chief Justice Todd, puts a finer point on it, describing the panel opinion as a “perversion of our established standards for a preliminary hearing” that “should be viewed by the lower courts as an unfortunate anomaly.” One imagines it will.

There are a couple of lessons for appellate practitioners here. The first is simple: when a court is evenly split, the lower court decision is affirmed by operation of law, but the decision means very little beyond a final adjudication of the parties’ dispute. The second is a little more inside-baseball. Usually, when the Court is evenly divided, it issues at least one opinion in support of affirmance and one in support of reversal. Here, the Justices in support of affirmance didn’t write at all. In this regard, the Court’s order reads more like an order dismissing an appeal as improvidently granted, from which three of the six participating justices dissent. But it is not that. Why not? The answer may be that all three Justices in support of reversal felt so strongly about the legal principles at issue and the importance of identifying the lower courts’ errors that they would not agree to sweep the issue under the rug, and refused to dismis the appeal. The third lesson is practical, then philosophical: bad facts make bad law (or, in this case, no law). One would have to bury one’s head in the sand not to recognize that the particular defendants and/or the particular prosecutor in this case have qualities that tend to upend ordinary views of the machinery of the criminal legal system. When a police officer is a defendant or a victim, the timbre of the adjudicative system changes. Perhaps there are good reasons for that; perhaps there are bad ones. But so long as we do not acknowlege it and attempt to explain them, we cannot evaluate whether they are good or bad. The Court’s disposition of Smith in this regard is less about a legal standard and more about the importance of thoughtful deliberation.

On the allocatur side, I’m most interested in Krzan, which will address whether prearrest silence is admissible as impeachment evidence only where it impeaches a defendant’s testimony or, rather, whenever a defendant testifies at trial. Given that there are a number of the Court’s decisions discussing silence as “insolubly ambiguous” in the first place, and as extracting a burden on a defendant’s right to remain silent on the other hand, one imagines the Court might hew to a narrow conception of impeachment. Time will tell.

Precedential Opinions

Commonwealth v. Hunte, 16 MAP 2024 (Opinion by Wecht, J.) (holding Pennsylvania’s medical implied consent statute violates federal and state constitutional prohibitions on unreasonable searches and seizures)

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

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

Commonwealth v. Hardy, 42 MAP 2024 (Opinion by Wecht, J.) (addressing several issues related to postconviction DNA testing)

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

Commonwealth v. Linton, 11 WAP 2024 (Opinion by Dougherty, J.) (holding cyclists’ “reasonable efforts” to avoid impeding traffic may in limited circumstance require them to pull off the road)

• See also Dissenting Opinion by McCaffery, J.

Allocatur Grants

Kowall v. United States Steel Corp., 298 WAL 2024 (granting review to consider the availability of attorney fees as costs of response under Pennsylvania’s Hazardous Sites Cleanup Act)**

Commonwealth v. Krzan, 661 MAL 2024 (granting review to consider the appropriate use of prearrest silence as impeachment evidence)

PennEnergy Resources, LLC v. MDS Energy Development, LLC, 361 WAL 2024 (granting review to consider whether a party who rescinds its joinder of an agreement including an arbitration agreement can seek arbitration thereunder)

Commonwealth v. Worzel, 17 MEAL 2025 (granting review to consider whether the legislature mandated termination of alternative rehabilitated disposition for a violation of the terms thereof)

Commonwealth v. Bloomer, 4 MAL 2025 (granting review to consider the constitutionality and legality of certain aspects of the Superior Court’s “substantial question” doctrine regarding discretionary aspects of sentencing)

Coynyngham v. Pa. Pub. Util. Commn., 657 MAL 2024 (granting review to consider whether the Public Utilities Commission has jurisdiction over municipal authorities)

Other

Commonwealth v. Smith, 53 EAP 2024 (affirming per curiam as a result of an evenly divided court a lower court decision arguably applying too-stringent standards for a preliminary hearing)

Jackmian v. City of Phila., 266 EAL 2024 (denying allocatur on an issue of statutory interpretation involving the real property exception to sovereign immunity, but including a concurring statement from Justice Dougherty indicating interest in considering aspects of that exception in a proper case)

*This author was counsel for Mr. Linton.

*This author was counsel for an amicus curiae in support of the petition for allowance of appeal.

May 2025 Docket Review

This month, the Court issued 6 (maybe 7) precedential opinions and 4 allocatur grants. On the opinion side, I’m most interested in Shifflet, which holds that consideration of a prior acceptance of a DUI-related alternative rehabilitative disposition, or ARD, as a prior offense for purposes of sentencing violates a defendant’s federal constitutional right to a jury trial. First, the case involves an interesting legal issue. For most of history, courts considered all sorts of facts in determining what sentences to impose. However, with the rise of sentencing guidelines and, particularly, fact-triggered mandatory minimum and maximum sentences, defendants began arguing that legislatures were essentially creating aggravated offenses with liability decided after the verdict. In the early part of the century, the U.S. Supreme Court agreed, but left one relic of its earlier regime in place: the fact of a prior conviction need not be presented to and found by a jury. That holding doesn’t fit neatly in the new regime, but everyone in the system likes it. Defense attorneys and their clients like not having to deal with evidence of their prior criminality being presented to a jury. Prosecutors like a lighter burden and the certainty of a judicial finding of a prior conviction where there is one. Judges like not having to deal with the evidentiary issues raised by presenting that evidence to a jury. Part of Shifflet is about whether the Legislature can make ARD sufficiently similar to a conviction to invoke (really, expand) this exception to the general rule. And the Court says no, but not without its dissenters.

But more broadly, Shifflet is about competing conceptions about what ARD is. Formally, it is essentially nothing. Defendants waive their constitutional rights and accept sanctions in exchange for avoiding an official adjudication and other sanctions. But functionally, it can either function, as defense counsel would prefer, a mulligan, or, as prosecutors would prefer, as a special dispensation. If the former, it makes no sense to punish someone who has a prior DUI-related ARD as a repeat offender: this is his first “true” DUI. If the latter, it does: this is really his second. One effect of Shifflet is that the former wins out in practice for now.

But while the case certainly improvdes the position of serial DUI defendants as of today, its downstream effects may cut the other way. It is not ridiculous to think the Legislature might simply add a defendant’s prior conviction or acceptance of ARD as an element of an aggravated offense. If so, evidence of defendants’ prior DUIs will be admissible, courts will reasonably differ on how to deal with resulting prejudice via jury instructions, severance, and so on, and the end result may be more, and more deliberatively suspect, convictions and guilty pleas. And at a minimum, one suspects that prosecutors who view ARD as special dispensation will be more stingy with it in the future. All of which is to say this: the Court in Shifflet appears focused on getting the right answer, whatever the downstream effects. At least in this author’s opinion, that’s a testament to its independence and its observance of its constitutional role. It is probably a good year to recognize that.

On the allocatur side, I’m very interested in King, in which the Court is poised to address the phenomenon of de facto life sentences in the context of the Pennsylvania constitutional prohibition on cruel punishments. This allocatur grant comes some years after the Court attempted to apply U.S. Supreme Court precedent seeming to limit permanent imprisonment of juvenile offenders, but, as it was deveoping a cogent framework to do so, had the proverbial rug pulled out from under it by subsequent U.S. Supreme Court decisions limiting that rubric altogether. Given the Court’s experience in this regard, as well as its markedly more protective approach toward juvenile offenders than adult ones, it would not be surprising to see some of those thoughts find a home in Pennsylania constitutional jurisprudence, where the Court has the final say.

Also interesting is the Court’s per curiam order in Alexander, in which the Court thoughtfully explains what, precisely, a per curiam order is and the role of the Prothonotary in response to some fairly wacky arguments about the value of per curiam orders in one of the last 2020-election-dispute cases still being litigated. Notably, the Court also later imposed a filing restriction on one of the litigants involved. The order is a good read for anyone who wants a look behind the curtain into how the court functions when it speaks as a body.

And just for fun, speaking of filing restrictions, I’ve also included below the a Superior Court panel’s decision in Scheibe, which admonishes a Pike County court for imposing a “wet signature” requirement as a precondition to filing, in this case to filing a complaint on the edge of a statute of limitations. One of the longstanding precepts is that state procedural rules govern, and that while county-level courts are free to adopt local rules, they cannot conflict with state rules, and they cannot form the basis for refusing a document altogether. Suffice it to say that this rule is not always honored, and the adoption of local rules and practices as filing requirments sometimes makes practice significantly more difficult for out-of-town attorneys. This author, for example, has encountered in-person-only filing rules, “wet signature” requirements, and even one county in which the court’s default practice was to require counsel to travel to chambers, pick up a completed order, and walk it down a hallway to the Clerk of Courts office for filing, all of which can become procedural traps and, in any event, make it exceptionally more time consuming or costly to litigate. Scheibe is an excellent explanation of the lay of the land and an excellent reminder that the Unified Judicial System is supposed to be, at the end of the day, a unified judicial system, at least when disunion would put litigants out of court.

Precedential Opinions

Commonwealth v. Thomas E. Proctor Heirs Trust, 31 EAP 2023 (Opinion by Mundy, J.) (holding that an agent’s repurchase of its principal’s property at a tax sale effected a redemption of the principal’s interest, rather than a title wash, under a 19th century statute regarding unseated land)*

Commonwealth v. Muhammad, 109 MAP 2023 (affirming a judgment of sentence in the context of a verdict arguably impeached by a special interrogatory)

• See Opinion Announcing the Judgment of the Court by Dougherty, J.

• See Concurring and Dissenting Opinion by Wecht, J.

• See Concurring and Dissenting Opinion by Brobson, J.

• See Dissenting Opinion by McCaffery, J.

Firearm Owners Against Crime v. Paris, 32 MAP 2023 (Opinion by Mundy, J.) (holding that firearms purchasers were entitled to proceed on claims for declaratory relief regarding the Commonwealth’s alleged understaffing of its firearms background check system)

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

Steets v. Celebration Fireworks, Inc., 3 MAP 2024 (Opinion by Donohue, J.) (overruling earlier decisions and holding that workers’ compensation specific loss benefits survive a workers death and are recoverable by her estate)

• See also Dissenting Opinion by Wecht, J.

Commonwealth v. Shifflet, 26 MAP 2024 (Opinion by Todd, C.J.) (holding that a trial court’s consideration of a defendant’s prior acceptance of alternative rehabilitative disposition as a “prior offense” giving rise to an increased sentence violates the federal constitutional right to a jury trial)

• See also Dissenting Opinion by Dougherty, J.

• See also Dissenting Opinion by Mundy, J.

• See also Dissenting Opinion by Brobson, J.

Pottstown Sch. Dist. v. Montgomery Cnty. Bd. of Assessment, 95 MAP 2023 (Opinion by Todd, C.J.) (holding a Pottstown hospital was a purely public charity and entitled to a property-tax exemption)

Commonwealth v. Johnson, 810 CAP (Opinion by Dougherty, J.) (rejecting numerous issues in a capital PCRA appeal)

• See also Dissenting Opinion by Mundy, J.

Allocatur Grants

Schmidt v. PennDOT, 561 MAL 2024 (granting review to consider whether a dangerous condition above Commonwealth real property is a dangerous condition of that property for purposes of the real estate exception to the Sovereign Immunity Act)

Commonwealth v. Adams, 609 MAL 2024 (granting review to consider the admissibility of belatedly disclosed expert opinion testimony)

Commonwealth v. King, 562 MAL 2024 (granting review to consider challenges to a de facto life sentence for a juvenile offender as violative of the Pennsylvania constitutional prohibition on cruel punishment)

Khalil v. Mary Jane Home Enrichment Ctr., Inc., 355 EAL 2024 (granting review to consider the appealability of a series of interlocutory orders including an order denying reconsideration under the collateral order rule)

Other

In re: Alexander v. Delaware Cnty. Bd. of Elections, 49 MM 2025 (Per Curiam Order) (explaining the Court’s general procedures in making per curiam dispositions)

Scheibe v. Woodloch Resort, 1478 EDA 2024 (Pa. Super.) (Opinion by Lane, J.) (admonishing common pleas courts for adopting and enforcing rules in conflict with state rules, in particular a “wet signature” rule)

*This author was counsel for amici curiae oil and gas title professionals who filed a brief in support of the Proctor Heirs Trust.

April 2025 Docket Review

This month, the Court issued 6 precedential opinions and 7 allocatur grants. On the opinion side, I’m most interested in Sitler, which holds that the longstanding irrebuttable presumption paternity is now, well, rebuttable, provided that a putative biological father demonstrates a reasonable chance that he is the biological father of a child, and that, considering everyone involved, a determination of paternity by DNA testing would be in the best interests of the child. Particularly given its decision earlier this year to recognize intent-based parentage, the Court’s modernization of the presumption likewise serves the goal of aligning family law principles with modern realities (or, really, honesty about the realities that have been there all along). As Justice Wecht wrote for the Court, the presumption was rooted in part on the difficulty of ascertaining paternity in a pre-DNA era, in part on the fear associated with subjecting children to the legal status of (English law term incoming) bastardy, which the General Assembly long ago abolished, and in part on the goal of preserving existing marriages and family units (although given the circumstances of a third-party potential biological father, one wonders whether the presumption ever really served that goal, and whether it was worth it). Given the change in social structures, the Court landed comfortably in familiar space: that increasingly complex families confound per se rules, and require fact-specific analysis.

And at the risk of again being called a Justice Wecht fanblogger, I’m also interested in Pignetti, which involves the proper valuation of jointly used parcels of land for condemnation purposes. And while the substance of the decision is itself notable in that it abrogated a lower court decision seemingly adopting additional elements beyond joint use, I’m most interested in the Court’s plain meaning analysis, which is certain to feature in future statutory interpretation cases. Apart from admonishing the lower court for not conducting a plain meaning analysis before moving to statutory construction (which unfortunately occurs frequently), Justice Wecht for the Court reiterated that plain meaning is ultimately a judgment call, and while it may be informed by dictionary definitions, it is not controlled by them:

“In search of statutory terms’ common and approved usages, this Court sometimes—but not always—consults dictionaries. We must not substitute dictionary definitions of highly general, familiar terms for statutory text where, as here, the question arises as to which definition’s text to insert. And we should be wary of relying upon dictionary definitions to find ambiguity where the reasonable reader would perceive none.”

The Court’s point is a great one. Common usage is common usage, and judges are more than capable of making judgments about it based on their own common sense and understanding in most cases. To that end, advocates would be wise to consider using more pedestrian methods of demonstrating common usage, and perhaps less inclined to search through varietals of dictionaries for a definition that best fits their preferred reading of a statute.

On the allocatur side, I’m most interested in Clearfield Cnty., albeit in no small part for the Latin. The case involves the doctrine of nullum tempus occurrit regi (poorly translated, time does not run against the king), or, as it as sometimes called in the United States, nullum tempus occurrit republicae (we don’t have a king, at least at the moment). In earlier eras, the Court has been willing to reexamine and overrule common-law principles rooted in the notion that the government cannot be held responsible for its actions or inactions, but the General Assembly has not been so eager. It will be interesting to see whether and to what degree the Court is eager to make nullum tempus a dead letter.

I’m also interested in Wilson and Cassell, both of which relate to drug deaths. In Wilson, the Court will consider whether the Drug Overdose Response Immunity Act, which is designed to protect reporters of drug overdoses from prosecution, applies to subsequently discovered offenses, an exception that lends itself to fairly fact-specific notions of what is “subsequent” and potentially undermines the purpose of the Act. And in Cassell, the Court will consider whether the Drug Delivery Resulting In Death Statute, which prohibits, well, drug delivery to another person resulting in the other person’s death, applies to individuals who purchase and share drugs. It is interesting that the cases will be heard roughly contemporaneously in that they involve two responses to the epidemic of drug overdoses — one public-health focused response and one punishment-based response — and the lower courts appear to be narrowing the former and expanding the latter. It remains to be seen how the Court will harmonize the approaches.

Precedential Opinions

In the Interest of S.W., 14 WAP 2024 (Opinion by McCaffery, J.) (holding that a statute abrogated an earlier decision giving prospective adoptive parents standing to challenge a child’s removal of a foster child from their care )

See also Concurring Opinion by Brobson, J.

See also Dissenting Opinion by Mundy, J.

Sitler v. Jones, 37 MAP 2024 (Opinion by Wecht, J.) (reconsidering and limiting the presumption that a mother’s spouse is her child’s father and allowing for paternity testing under certain circumstances)

See also Concurring and Dissenting Opinion by Donohue, J.

Mezzacappa v. Northampton Cnty., 40 MAP 2024 (Opinion by Todd, C.J.) (holding that a mugshot is an “identifiable description” for purposes of the Criminal History Record Information Act and therefore that only police agencies can disseminate them to individuals)

Matos v. Geisinger Med. Ctr., 93 MAP 2023 (Opinion by Todd, C.J.) (holding that an oral request for admission to a mental health facility is sufficient to trigger Mental Health Procedures Act liability)

See also Dissenting Opinion by Wecht, J.

Pignetti v. PennDOT, 26 EAP 2023 (Opinion by Wecht, J.) (holding the Commonwealth Court erred in adding additional requirements for plottage-based property valuation)

See also Dissenting Opinion by Brobson, J.

In re : Nominating Petition of Huff, 11 EAP 2025 (Opinion by Brobson, J.) (clarifying the application of the residency requirement for candidates to a Philadelphia candidate for two judicial offices)

Allocatur Grants

Clearfield Cnty. v. Transystems Corp., 319 WAL 2024 (granting review to consider a county’s invocation of the doctrine of nullum tempus occurrit regi in the context of a statute of repose)

Baclit v. Sloan, 316 WAL 2024 (granting review to consider the scope of limitations of underinsured motorist coverage in an auto insurance policy)

Commonwealth v. Wilson, 343 WAL 2024 (granting review to consider the application of drug-overdose-response immunity to subsequently discovered separate criminal offenses)

Cleveland Bros. Equipment Co., Inc. v. Arcadia North Land, LLC, 625 MAL 2025 (granting review to consider the Mechanics’ Lien Law allows for mechanics’ lien claims for the use of construction equipment used for the improvement of the subject real property)

Aita v. NCB Mgmt. Servs., Inc., 531 MAL 2024 (granting review to consider whether the Pennsylvania Wage Payment and Collection Law limits relief to employees owed wages when they file suit)

Commonwealth v. Cassell, 535 MAL 2024 et al. (granting review to consider whether one co-purchaser and user of drugs “delivers” it to another for purposes of several criminal statutes)

Commonwealth v. Carney, 457 MAL 2024 (granting review to consider whether a defendant prosecuted for allegedly nonconsensual sexual activity who may have believed it was consensual is entitled to a mistake of fact jury instruction)

March 2025 Docket Review

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

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

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

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

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

Precedential Opinions

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

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

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

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

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

• See also Concurring Opinion by Brobson, J.
  

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

• See also Concurring Opinion by Wecht, J.
  

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

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

Allocatur Grants

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

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

February 2025 Docket Review

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

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

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

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

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

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

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

Precedential Opinions

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

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

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

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

• See also Concurring Opinion by Wecht, J.

Allocatur Grants

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

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

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

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

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

January 2025 Docket Review

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

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

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

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

Precedential Opinions

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

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

• See also Concurring Opinion by Dougherty, J.

• See also Concurring Opinion by Mundy, J.

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

• See also Dissenting Opinion by Donohue, J.

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

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

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

• See also Dissenting Opinion by Wecht, J.

• See also Dissenting Opinion by Brobson, J.

Allocatur Grants

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

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

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

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

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

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

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

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

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

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

December 2024 Docket Review

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

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

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

Precedential Opinions

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

• See also Concurring Opinion by Mundy, J.

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

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Donohue, J.

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

Allocatur Grants

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

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

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

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

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

November 2024 Docket Review

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

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

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

Precedential Opinions

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

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

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

• See also Dissenting Opinion by Donohue, J.

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

• See also Concurring Opinion by Mundy, J.

• See also Concurring Opinion by McCaffery, J.

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

• See also Dissenting Opinion by Brobson, J.

Allocatur Grants

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

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

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

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

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

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

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

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

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

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

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

October 2024 Docket Review

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

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

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

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

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

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

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

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

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

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

Precedential Opinions

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

• See also Concurring Opinion by McCaffery, J.

• See also Dissenting Opinion by Donohue, J.

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

• See also Concurring Opinion by Wecht, J.

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

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

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Mundy, J.

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

• See also Dissenting Opinion by Wecht, J.

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

• See also Concurring Opinion by Wecht, J.

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

• See also Concurring Opinion by McCaffery, J.

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

• See also Concurring Opinion by Dougherty, J.

• See also Dissenting Opinion by Mundy, J.

• See also Dissenting Opinion by Brobson, J.

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

Allocatur Grants

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

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

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

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

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

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

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

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

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

Other

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

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

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

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

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

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

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

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

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

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

September 2024 Docket Review

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

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

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

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

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

Precedential Opinions

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

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

• See also Concurring Opinion by Wecht, J.

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

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

• See also Concurring Opinion by Wecht, J.

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

• See also Dissenting Opinion by Mundy, J.

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

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

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

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

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

• See also Concurring Opinion by McCaffery, J.

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

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

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

• See also Concurring Opinion by Mundy, J.

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

• See also Concurring Opinion by Dougherty, J.

• See also Dissenting Opinion by McCaffery, J. 

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

• See also Concurring Opinion by Wecht, J. 

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

• See also Dissenting Opinion by Donohue, J.

Allocatur Grants

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

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

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

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

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

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

August 2024 Docket Review

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

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

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

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

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

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

Precedential Opinions

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

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

• See also Dissenting Opinion by Brobson, J.

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

• See also Concurring Opinion by Dougherty, J.

• See also Dissenting Opinion by Mundy, J. 

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

• See also Concurring Opinion by Wecht, J.

• See also Concurring Opinion by Mundy, J.

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

• See also Dissenting Opinion by Wecht, J.

• See also Dissenting Opinion by Brobson, J.

Allocatur Grants

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

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

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

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

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

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

July 2024 Docket Review

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

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

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

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

Precedential Opinions

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

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

• See also Concurring Opinion by Donohue, J.

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

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

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

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

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

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

Allocatur Grants

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 2024 Docket Review

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

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

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

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

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

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

Precedential Opinions

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

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

• See also Concurring Opinion by Donohue, J.

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

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

Allocatur Grants

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

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

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

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

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

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

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

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

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

-

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

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

May 2024 Docket Review

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

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

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

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

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

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

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

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

 Precedential Opinions

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

• See also Concurring Opinion by Donohue, J.

• See also Dissenting Opinion by Wecht, J.

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

• See also Concurring Opinion by Donohue, J.

• See also Concurring Opinion by Wecht, J.

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

• See also Concurring Opinion by Wecht, J.

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

• See also Concurring Opinion by Mundy, J.

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

• See also Dissenting Opinion by Donohue, J.

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

• See also Concurring Opinion by Brobson, J.

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

• See also Concurring Opinion by Donohue, J. 

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

• See also Concurring Opinion by Donohue, J.

• See also Concurring Opinion by Wecht, J.

• See also Dissenting Opinion by Mundy, J.

Allocatur Grants

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

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

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

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

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

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

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

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

April 2024 Docket Review

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

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

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

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

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

Precedential Opinions

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

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

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

• See also Concurring Opinion by Dougherty, J.

• See also Concurring Opinion by Mundy, J.

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

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

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

• See also Dissenting Opinion by Wecht, J.

Allocatur Grants

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

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

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

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

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

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

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

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

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

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

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

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

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

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