January 2026 Docket Review
This month, the Court issued 11 precedential opinions and 4 allocatur grants.
On the opinion side, one of the more anticipated cases for civil litigators was Chilutti. In that case, the Court granted review of a Superior Court decision that invalidated an online “click-wrap” arbitration agreement as inconsistent with a high knowing, intelligent, and voluntary waiver standard it found emanated from the state constitutional right to a jury trial. The decision had the effect of invalidating innumerable existing arbitration agreements in a variety of settings and, by extension, a variety of ongoing cases. When the Court granted review of the Superior Court’s opinion, the plaintiff’s bar hoped it would place its imprimatur on the Superior Court’s holding in this regard, and the defense bar hoped it would unmake it. But whatever that decision will ultimately be, it will now be deferred, as the Court held that the underlying order compelling arbitration was not appealable as of right as a collateral order. The Court’s decision means that Chilutti’s case, and others like it, have to proceed to arbitration, then an appeal from the arbitration award, and then an appeal to obtain review of the issue as of right. Alternatively, litigants may request a discretionary appeal in the Superior Court.
A couple of important takeaways. First, the Superior Court’s decision has been vacated, so, in some sense, the defense bar got at least a trial version of its wish (no pun intended). But the substantive issue is virtually certain to return, and soon.
Second, one can hold two thoughts about the Court’s procedural decision itself. In the immediate term and setting, it is likely to make cases involving similar agreements longer and more expensive, and, for that reason, it is easy to view the case as helpful for civil defendants. However, in a world where the Superior Court’s holding were blessed by the Court, the likely response by those defendants would be to change their online agreements to comply with the new, higher standard. Indeed, by the time of the Court’s decision, some already had. And more broadly, the Court’s decision to narrow (or at least not expand) what constitutes a collateral order may cut the other way. Appeals from interlocutory decisions, whether about arbitration, in the discovery context, in pretrial rulings, or on dispositive motions, are often used by civil defendants, right or wrong, to gain leverage. And a narrower collateral order doctrine means there are fewer of those around. If, in the end, the Superior Court’s holding in Chilutti is affirmed, this month’s decision will look very different in retrospect.
I’m also interested in the Court’s decisions in Walker and Brown, two cases involving a bevy of criminal and postconviction issues. Strictly speaking, they stand for the propositions that the Commonwealth can no longer join prosecutions based solely on a logical connection between them (because joining one case to another is effectively one giant piece of inadmissible act-propensity evidence and should require more), and that a third party’s confession can constitute a newly discovered fact that permits a petitioner to bring a second or subsequent PCRA petition. These holdings are important, but the cases are more important in that they illustrate some interesting dynamics in the context of criminal cases. Broadly speaking, the Court in totality appears to recognize that there are many issues in criminal cases that warrant revisitation and reform. But the Justices differ on whether and to what degree depending on the issue. What seems to be emerging is a Court in which for most issues, some Justices are interested in more sweeping changes, and some, usually enough to form a coalition, are interested in more modest ones. And the coalitions are different. For the foreseeable future, advocates seem likely to ask for the sun, the moon, and the stars in hopes of getting one of the three.
Finally, also noteworthy this month is the Court’s decision in Cohen, which involves the standard to be applied to in federal and state constitutional challenges to restrictions on a sitting judge’s political speech (as compared to a judicial candidate’s speech, which are governed by strict scrutiny), and in which the Court adopted a balancing test weighing the restriction’s protection of judicial integrity against the judge’s interest in speech.
And while we’re talking about federal constitutional challenges, on the allocatur side, perhaps the most interesting case is going to be Williams, which raises several challenges to Pennsylvania’s gun-control laws as applied to 18 to 21-year-olds. A couple decades ago, it was considered laughable to suggest that the Second Amendment protected an 18-year-old’s right to carry a firearm. U.S. Supreme Court precedent at the time effectively tied one’s right to carry a firearm to one’s membership in a militia. But in recent years, an upheaval in that precedent recognizing an individual right to firearms has upset the proverbial apple cart. Initial applications were modest: no outright bans on firearms in DC or cities, for example. But the neohistoricist logic of the decisions soon found applications in less comfortable areas: what would James Madison have viewed as a person not to possess; how would Samuel Adams have dealt with ghost guns? The Court is now poised to answer.
Precedential Opinions
Firstenergy Pa. v. Pa. Pub. Util. Comm., 42 MAP 2024 (Opinion by McCaffery, J.) (holding that the PUC erroneously held an electric utility to a burden of proving that its pole-lease rates were just and reasonable)
Erie Ins. Exch. v. United Services Auto. Assn. (Opinion by Donohue, J.) (holding an insurer acting as a subrogee has no right of recovery against a third-party who allegedly spoliated evidence relevant to its subrogor’s claim)
See also Dissenting Opinion by Dougherty, J.
Bell v. Wilkinsburg Sch. Dist., 23 WAP 2024 (Opinion by Dougherty, J.) (holding the Charter School Law permits a school district to furnish different modes of transportation to public-school students as compared to charter-school students
See also Dissenting Opinion by Mundy, J.
Gustafson v. American Fed. of State, Cnty., & Munic. Empees., 24 WAP 2024 (Opinion by Mundy, J.) (holding employee alleging union’s breach of duty of fair representation may not seek damages from the union, but, rather, may seek an order compelling the union to take the grievance to arbitration nunc pro tunc)
See also Concurring Opinion by McCaffery, J.
See also Dissenting Opinion by Todd, J.
In re: Cohen, 63 EAP 2024 (Opinion by Dougherty, J.) (holding that restrictions on a sitting judge’s speech on matters outside their duties and on a matter of public concerned are evaluated by balancing the interest in protecting the administration of justice against the judge’s interest in making the statement)
See also Concurring Opinion by Wecht, J.
Chilutti v. Uber Techs., Inc., 58 EAP 2024 (Opinion by Brobson, J.) (holding order compelling contract-based arbitration was not appealable as of right as a collateral order)
Ostapowicz v. Tioga Cnty. Tax Claim Bur., 51 MEAP 2024 (Opinion by Todd, C.J.) (holding that an owner of a property sold at tax sale may not seek relief based solely on the sale price)
In re: Chester Water Auth. Tr., 46 MAP 2022 (Opinion by Donohue, J.) (holding amendments to the organic structure of the Chester Water Authority precluded the City of Chester from unilaterally conveying its assets)
Commonwealth v. Fitzpatrick, 95 MAP 2024 (Opinion by Wecht, J.) (holding expert opinions on the manner of death must be rendered to a reasonable degree of certainty and clarifying doctrine surrounding the phrase)
Commonwealth v. Walker, 38 EAP 2024 (Opinion by McCaffery, J.) (holding that consolidation of criminal cases may not be predicated on mere “logical connection”)
See also Dissenting Opinion by Todd, C.J.
Commonwealth v. Brown, 3 WAP 2025 (Opinion by Wecht, J.) (recognizing that a third-party confession can constitute a newly discovered fact for purposes of the time-bar provisions of the PCRA)
Allocatur Grants
Adam Const. Excavator, LLC v. Atiyeh, 347 MAL 2025 (granting review to consider application of standard for requests for admission under the Rules of Civil Procedure in an administrative proceeding)
Commonwealth v. Williams, 395 MAL 2025 (granting review to consider several Second-Amendment challenges to the criminal prohibition on carrying a firearms without a license as applied to 18-to-20 year olds who are statutorily ineligible to obtain such a license)
In re: Hoyt, 300 MAL 2025 (granting review to consider whether a tax-claim bureau’s failure to comply with the Real Estate Tax Sale Law deprives it of jurisdiction and permits setting aside ensuing tax sales)
McCarthy and Co., Inc., v. Pollen, 375 MAL 2025 (granting review to consider the enforceability of a restrictive covenant in an asset purchase agreement in the context of the purchaser’s sale of its business to a third party)
