April 2026 Docket Review
This month, the Court issued 6 precedential opinions and 3 allocatur grants.
On the opinion side, Honey will get the most attention. The case theoretically presents a straightforward issue. In Lycoming County, voters vote on electronic voting machines, which print out physical ballots, and place them in precinct-level scanners and ballot boxes. The scanners transmit data to a precinct-level tabulator, which then transmits precinct-level data to a county-level tabulator, which generates precinct-level cast-vote-reports on the way to a county-level tabulation. The specific question in Honey was whether these cast-vote-reports were public records subject to disclosure under the Right-to-Know Law, or whether they were exempt because they were the “contents of ballot boxes [or] voting machines.”
Strictly speaking, this is a simple question. They are not. The reports are not the contents of ballot boxes, which are, well, ballots. They are not the contents of voting machines (even electronic voting machines) because they are not in machines that are used to cast a vote.
The first problem is that these terms emanate from the 1937 Election Code, which has largely been ossified despite over a century of changes to election technology, and attempting to square the provisions of the Code with the practice of elections today tends to sound a lot like discussing complex questions about self-driving cars by comparison to the parts of a horse. The second, bigger, problem is that we live in a political moment in which democracy and election law (perhaps even democracy and elections themselves) sit at the zenith of partisan acrimony and suspicion. (This is perhaps most powerfully apparent in the context of the Court’s per curiam affirmance in Buchtan, regarding which supporters of both sides of a Republican primary have claimed a liberal Court affirmed a conservative Commonwealth Court judge’s order in a residency spat to hurt their electoral fortunes.) So the Court is often asked to fill statutory gaps based on antiquated analogies with the virtual certainty of angering one tranch of partisans or another.
Perhaps relatedly, the Court has found its center in this area by effectively refusing to fill gaps and hewing closely to established rules of interpretation. Honey is no different. In a unanimous opinion authored by Justice McCaffery, the Court was unwilling to deposit cast-vote reports into the categories of contents of ballot boxes or voting machines, beyond their ordinary meanings, at least where disclosure would not impair the constitutionally required secrecy of particular votes. Along the way, it repeatedly implied that the area of law was ripe for legislative intervention. Justice Wecht, in a concurrence, put a fine point on it, identifying that citizens who wanted a different balance of secrecy and disclosure would have to “awaken[] the slumbering General Assembly to its failure to modernize the language” “more frequently than on a centennial basis.”
All of which is to say that if the Legislature does not act, the Court is not going to act for it and pay a political price it shouldn’t have to pay. While some might view this as an institution keeping its proverbial powder dry, it is actually fundamental to separation of powers. The Legislature is responsible for legislation, and for the blowback it does or does not occasion in future elections. When courts step in to fill gaps, at least in politically sensitive areas, they give the legislature cover and undermine the democratic response, and at their own institutional expense. Honey is an excellent example of the Court trying to keep everyone in their proper lane.
Apart from Honey, the Court’s decisions in Clearfield Cnty., Harrison, and Borough of West Chester get an honorable mention for extremely cogent articulations of longstanding and complicated areas of law. In Clearfield Cnty., Justice Mundy pens an opinion about the history, nature, and point of the doctrine of nullum tempus occurrit regi (time does not run against the king, which should actually be called nullum tempus occurrit republicae here in the United States, King Charles’ visit to Washington notwithstanding). In Harrison, Chief Justice Todd offers an excellently well-researched history of prosecutorial discretion in Britain and Pennsylvania. And in Borough of West Chester, Justice Brobson discusses the intersection of stormwater management, sovereign immunity from taxation, and the difference between taxation and service fees, a task perhaps only fit for a former President Judge of the Commonwealth Court.
On the allocatur side, I’m most interested in Coffee, which will address whether and how a petitioner under Pennsylvania’s Post Conviction Relief Act can raise a claim of ineffective assistance of appellate postconviction counsel.
By way of background, a major problem in this area of the law flows from two principles. First, a litigant generally cannot raise new issues on appeal. Second, the Court has previously held that a petitioner cannot use postconviction counsel’s ineffectiveness as a “newly discovered fact” to avoid the PCRA’s time-bar provisions and file a second or subsequent petition. Putting these principles together, petitioners whose counsel were ineffective often found themselves between the proverbial rock of issue-preservation and the whirlpool of the time-bar, and federal postconviction proceedings were the only pathway to meaningful assessment of claims of ineffective postconviction counsel.
About five years ago, the Court tried to carve a path through the rock. In a case called Shaw, the Court allowed petitioners whose appellate counsel were ineffective to seek a remand to raise the issue on appeal and seek a remand to the trial court. In a subsequent case called Bradley, the Court allowed petitioners who obtained new counsel on appeal to raise prior counsel’s ineffectiveness and similarly obtain a remand. And following Bradley, in a case called Greer, the Court indicated that petitioners invoking Bradley should raise their claims at the earliest opportunity, ideally before briefing.
The path is pretty narrow in practice. Petitioners often do not understand these cases and the fact that they essentially provide petitioners a do-over. Postconviction counsel (to say nothing of the ineffective ones) and trial-level courts do not often explain them, let alone facilitate petitioners’ invoking them, which would require new counsel and a new round of postconviction review.
And the United States Supreme Court has drastically reduced the availability of federal proceedings: in a case called Shinn, the High Court held that Congress did not intend for petitioners waylaid by state-level ineffectiveness to make up the record that counsel failed to make in state court, effectively meaning that petitioners could never make a record, and, except in the context of purely legal questions, never get relief.
It is worth noting that the petitioner in Bradley also suggested that the Court might leave issue-preservation rules intact and reconsider its interpretation of “newly discovered facts.” Indeed, although the Court has held that ineffectiveness ordinarily cannot constitute a newly discovered fact, it has also held in subsequent cases that particularly egregious ineffectiveness, such as wholesale abandonment or waiver of all claims, does. Perhaps in light of the vagaries of Bradley practice and Shinn, the Court might someday consider the road not taken.
Coffee nominally will discuss issues relative to when one must raise ineffective appellate postconviction counsel, but it will be interesting to see if the Court has the occasion to touch on some of these broader issues.
Precedential Opinions
Honey v. Lycoming Cnty. Ofcs. of Voter Servs., 79 MAP 2024 (Opinion by McCaffery, J.) (holding cast vote records are not contents of ballot boxes or voting exempt from public disclosure under the Pennsylvania Right-to-Know Law)
See also Concurring Opinion by Wecht, J.
Clearfield Cnty. v. Transystems Corp., 10 WAP 2025 (Opinion by Mundy, J.) (holding that the doctrine of nullum tempus does not vitiate the construction-projects statute of repose)
Commonwealth v. Gillece Servs., L.P., 32 WAP 2024 (Opinion by McCaffery, J.) (holding a consumer may rescind a home improvement contract under the Home Improvement Consumer Protection Act without a writing)
See also Concurring Opinion by Brobson, J.
Commonwealth v. Harrison, 84 MAP 2024 (Opinion by Todd, C.J.) (clarifying the standard for motions to nolle prosse a criminal prosecution)
Borough of West Chester v. PASSHE, 9 MAP 2023 (Opinion by Brobson, J.) (holding local stormwater management fee constitutes a local tax)
See also Concurring Opinion by Mundy, J.
Precht v. UCBR, 85 MAP 2024 (Opinion by Brobson, J.) (retethering “positive steps” test for self-employment to the statutory text of the Unemployment Compensation Law)
Other
In re: Nominating Petition of LaVelle, 9 EAP 2026 (affirming Commonwealth Court decision in nominating petition contest)
See also Concurring Statement by Brobson, J. (expressing the view that the Commonwealth’s practice of providing notice of nominating petition contests via its website may be contrary to the Election Code)
In re: Nominating Petition of Buchtan, 12 WAP 2026 (affirming Commonwealth Court’s decision declining to dismiss nominating petition it found to have indicated the candidate’s incorrect legal residence and merely directing that the petition reflect his correct legal residence, over dissent of Justices Brobson, Dougherty, & Mundy, with an opinion to follow)
In re: Order Adopting Rule 1990 of the Pennsylvania Rules of Judicial Administration, 655 JAD 2026 (reforming and reorganizing various Rules and internal operating procedures pertaining to the waiver of court fees and costs as explained in the adoption report here)
In re: Order Amending the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania, 656 JAD 2026 (reforming and reorganizing the Court’s case records public access policy as reflected here)
Allocatur Grants
Fraternal Order of Police Lodge No. 5 v. City of Philadelphia, 431 EAL 2025 (granting review to consider state law’s intersection with a Philadelphia ordinance and related executive order prohibiting vehicle stops for low-level infractions)
Commonwealth v. Coffee, 11 EAL 2025 (granting review to consider the procedural mechanism to raise ineffective assistance of appellate PCRA counsel)
Commonwealth v. Stoney, 612 MAL 2025 (granting review to consider whether a probation officer assisting other officers may seize a non-probationer)
