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. Bruem, 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.