December 2025 Docket Review
This month, the Court issued 3 precedential opinions and 7 allocatur grants.
On the opinion side, I’m most interested in a case the Court didn’t decide, at least not definitively.
In Commonwealth v. Kurtz, the Court was asked to consider the validity of a search warrant issued to Google for a user’s search data. The task of applying constitutional privacy protections to internet activity is a fraught one. As an historical matter, Thomas Jefferson probably had few thoughts about the relationship between internet service providers and their users. And constitutional privacy jurisprudence started as a relatively toothless constitutionalized law of trespass before migrating during mid-20th century constitutionalized criminal-justice reform to a constitutional protector of “reasonable expectations of privacy” — i.e., actual expectations of privacy that society (or at least the court) is willing to recognize as reasonable. Suffice it to say that what mid-20th century courts were willing to recognize as reasonable incorporated all sorts of mid-century norms about what is public and private, some of which hold up in modern society, and some of which read like conceptual antagonists in Raymond Carver short stories. Complicating matters more, once recognizing reasonable expectations came at the cost of excluding evidence, and thereby embarrassing police and prosecutors and letting bad actors go free, it is fair to say that some late-century courts were analytically stingy when it came to privacy.
Here, the difficulty is really in the applicability and application of so-called “third-party doctrine”: the idea that one cannot have a reasonable expectation of privacy in what one shares with others. Although this idea is obviously true in the abstract, it has always failed to recognize the inherent tension with normative aspects of privacy and confidential relationships that are already baked into, for example, the law of privileges. We wouldn’t say that one doesn’t have a reasonable expectation of privacy in communications with one’s lawyer, or doctor, or priest, or psychologist because the relationships are confidential and we want them to be. Nevertheless, early federal cases refused to recognize a reasonable expectation of privacy in one’s telephone call records, and, later, banking records. And as humans and their lives have become increasingly enmeshed with others, and particularly technology providers, the tension becomes considerable. Indeed, even at the federal level, the U.S. Supreme Court recognized in Carpenter v. United States (2018), that a person does have a reasonable expectation of privacy in one’s historical cell-site location data, notwithstanding that it appears in the records of third party technology providers, in part based on the integral nature of mobile phones in modern life.
Kurtz centers nominally on doctrine — Pennsylvania rejected, depending on how you read it, the third-party doctrine generally or the cases applying it to telephone and bank records, and Justice Wecht (joined by Justices Brobson and Dougherty) disagrees with Justice Donohue as to which. But the crux is actually that they disagree about the integrality of search engines to modern life. Justice Wecht finds them insufficiently integral to brook an exception to the idea that secrets must be kept secret, and Justice Donohue disagrees.
Kurtz doesn’t strictly resolve the issue because Chief Justice Todd, joined by Justices McCaffery and Mundy, concurs on the ground that the warrant at issue was, in her view, supported by a demonstration of probable cause, an approach consistent with her long history of judicial minimalism. Justice Donohue, for her part disagrees on this point as well.
The particularly curious opinion in this case comes from Justice Mundy, who wrote a separate concurrence identifying that she agreed with Justice Wecht’s opinion as it pertained to the constitutional question, but did not join it because she also agreed with Chief Justice Todd that the question need not be decided today. Which is about as close as one can come to joining an opinion without actually doing it.
So what to do with Kurtz? In strict doctrinal terms, it stands only for the proposition that the search involved in the case was a valid one. Practically, it may lead lower court judges to effectively staple the lead opinion and Justice Mundy’s concurrence together into a quasi-precedential, prediction that the Court, if confronted squarely, would recognize third-party doctrine and that it applies to search engine results.
But maybe not. At the federal level, one can easily see Carpenter becoming an exception that swallows a rule, particularly in the era of AI technology which people use as as ersatz lawyers, doctors, priests, psychologists, and general reference librarians all the time. Perhaps Carpenter is the first step toward another doctrinal shift that recognizes that we’re really creating constitutional privilege rules. That’s a fine thing to do.
In the meantime, the reasonableness of an expectation of privacy in Pennsylvania will likely depend upon the type of communication with third parties at issue and its degree of integrality to one’s life, a question upon which, obviously, reasonable people reasonably disagree. Practitioners would do well to develop a record on the point as it pertains to society in general and the person at issue specifically.
On the allocatur side, I’m most interested in L.F.V., in which the Court will consider whether the sexual abuse exception to the Political Subdivision Tort Claims Act applies with equal force whether a political subdivision negligently enables an employee or a non-employee to sexually abuse someone in its care. The General Assembly adopted the PSTCA to abrogate the Court’s decisions ending sovereign and governmental immunity as a common-law matter, and reinstated a general rule of immunity while identifying several exceptions. As a result, those exceptions have generally been construed narrowly. However, the General Assembly adopted the sexual abuse exception only a few years ago under very different circumstances that suggest a broad, rather than a narrow interpretation. L.F.V. will be an interesting case study in the Court’s conception of legislative intent as it pertains to a statute with different pieces from different times in different circumstances.
I’m also interested in DiPetro, in which the Court will consider the validity and scope of the longstanding “res gestae” exception to the bar on evidence of a criminal defendant’s other bad acts. In theory, this exception exists to permit the Commonwealth to introduce evidence without which its prosecution of a case will become confusing and nonsensical to a jury. But in practice, the exception is largely misunderstood and overused, and sometimes serves as a way for prosecutors to introduce particularly damaging information on the view that it is simply “part of the story.” In short, the exception is a sensible one in theory, but widely misapprehended and abused. It will be interesting to see whether and when the benefits are worth the burdens.
Finally, a practice note. I would be remiss if I did not mention the Court’s amendments to Rule 904 of the Rules of Appellate Procedure, making several changes relevant to notices of appeal. Of particular importance, the Court emphasizes that an appellant must identify on the notice all the parties on the docket below, as opposed to, for example, identifying the remaining parties involved in the appeal or the first party followed by et al. Given the changes, and the appellate courts’ historic sensitivity to errors in notices of appeal, practitioners should familiarize themselves with the changes.
And finally, for the second time, longtime legal blogger and podcaster David Lat recently interviewed Justice Wecht on his podcast, Original Jurisdiction. The interview is an excellent listen for anyone who practices in Pennsylvania or follows the Court, provided you have already listened to the entirety of The Standard of Review.
Precedential Opinions
Consumer Advocate v. Pa. Pub. Util. Commn., 47 MAP 2024 (Opinion by Mundy, J.) (clarifying the standard of review for certificates of public convenience in the context of a private purchase of a wastewater collection system)
Weatherholtz v. McKelvey, 58 MAP 2024 (Opinion by Donohue, J.) (holding that the statute of limitations applicable to sexual-abuse protection-from-abuse orders runs from the date of the act or circumstance that demonstrates that a plaintiff is at a continued risk of harm from the defendant)
Duncan v. Chartiers Nature Conservancy, Inc., 8 WAP 2024 (Opinion by McCaffery, J.) (holding that where a plaintiff in a quiet title action overcomes the presumption that the title owner is in possession, a court should direct the title owner to file an action in ejectment to preserve its claim, and that whether or not the subject property is woodlands, which requires a higher standard, is not relevant for the jurisdictional inquiry)
Other
Commonwealth v. Kurtz, 98 MAP 2023
Opinion Announcing the Judgment of the Court by Wecht, J. (opining that users of search engines lack a reasonable expectation of privacy in the proprietors’ records of their searches)
Concurring Opinion by Todd, C.J. (declining to address the constitutional issue on the ground that even assuming the user had a reasonable expectation of privacy, a warrant for the records was valid)
Concurring Opinion by Mundy, J. (declining to address the constitutional issue on the ground that even assuming the user had a reasonable expectation of privacy, a warrant for the records was valid)
Dissenting Opinion by Donohue, J. (opining that users have a reasonable expectation of privacy and that the warrant was invalid for want of probable cause)
In re: Order Amending Rules 341 and 904 of the Pennsylvania Rules of Appellate Procedure (making several changes with respect to the form of the notice of appeal)
Balfour Beatty Communities, LLC v. Penn Patriot Ins. Co., 69 EAP 2024 (dismissing appeal from intermediate court’s denial of a petition or permission to appeal as improvidently granted)
Concurring Statement by Brobson, J. (opining that the Superior Court’s grant or denial of a petition for permission to appeal is discretionary and not subject to further review absent circumstances warranting an exercise of extraordinary jurisdiction)
Concurring Statement by Mundy, J. (opining that such a decision is reviewable for an abuse of discretion)
Allocatur Grants
L.F.V. v. S. Phila. High Sch., 243 EAL 2025 (granting review to consider whether the sexual abuse exception to the Political Subdivision Tort Claims Act applies in the context of a political subdivision’s negligent enabling of third-party sexual assaults)*
Allegheny Cnty. Prison Emp. Indep. Union v. Pa. Lab. Rel. Bd., 153 WAL 2025 (granting review to consider several issues related to collective bargaining between corrections officers and the Allegheny County jail over a recently adopted-by-referendum use of force policy)
Commonwealth v. DiPietro, 399 MAL 2025 (granting review to consider whether to repudiate or narrow the use of evidence of other acts to prove res gestae)
Commonwealth v. Mellon, 339 MAL 2025 (granting review to consider whether evidence of a defendant’s refusal to submit to DUI-related blood testing offered as evidence of consciousness of guilt must be accompanied by a limiting instruction)
Commonwealth v. Diggs, 202 WAL 2025 et al. (granting review to consider whether flat sentences are always legal when imposed for indirect criminal contempt)
In re: Blythedale Park, 216 WAL 2025 (granting review to consider ther proper interpretaton of a provision of the Donated or Dedicated Property Act)
Johnson v. Pa. Pub. Util. Commn., 191 WAL 2025 (granting review to consider jurisdictional and related issues in connection with the siting of a proposed public utility transmission line)
*The undersigned is among counsel for L.F.V. in this matter.
