July 2026 Docket Review
This month, the Court issued 9 precedential opinions and 8 grants of allocatur.
On the opinion side, the Court issued a number of interesting decisions in criminal cases. Perhaps the most consequential is Punxsutawney. In that case, the Court in an opinion by Justice Brobson held that a person may, by sufficiently protecting “open fields” against intruders, demonstrate a reasonable expectation in the privacy sufficient to implicate Article I, Section 8 of the Pennsylvania Constitution’s protection against unreasonable searches and seizures. The Court’s holding departs from federal jurisprudence, which holds a person has no such interest, and also overrules an earlier of its decisions holding that the federal and Pennsylvania constitutions were coterminous on the point. The Court’s 83-page opinion is the latest in the Court’s casebook-appropriate judicial-federalism decisions in the area of constitutional privacy, and serves as an excellent guide not only for advancing a “departure claim” under the Pennsylvania Constitution, but for dealing with unfavorable precedent. Apart from its holding and analysis, the decision, lauded by politically right-leaning Pennsylvanians who extol the virtues of private property and gun rights, also shows (or should) that the Court, which is ultimately the keeper of the Pennsylvania Constitution, is open to, serious about, and confident in its work interpreting it, regardless of whether a particular case results in a more parochially/politically “liberal” or “conservative” outcome.
I would also be remiss if I didn’t mention Shivers, in which the Court, as if Bill Murray’s character in Groundhog Day, again sought to address whether an individual’s “flight” in a “high-crime area” is sufficient to permit police to detain him under Article I, Section 8. The principle that it does, for purposes of Fourth Amendment protections, was adopted by the United States Supreme Court amidst the War on Drugs, and has always been controversial because, particularly at suppression hearings where law enforcement officers often provide bare-bones, talismanic testimony, “flight” sometimes organizes into “noncooperation with approaching law enforcement” and “high crime area” sometimes organizes into “minority and/or impoverished neighborhoods.” Last September, the Court in Lewis addressed some subsidiary issues under the federal constitutional rubric, and, to its credit, emphasized that trial courts should be on the lookout for this kind of dilution.
In Shivers, the Court had hoped to revisit the issue under Article I, Section 8. Unfortunately, that hope was dashed because the defendant in the trial court focused on whether the Commonwealth actually showed flight in a “high crime area” and not whether, assuming it had, that showing was sufficient to warrant a detention under Article I, Section 8. The Court found that this waived Shivers’ departure claim under its September 2019 decision in Bishop, which required “some” analysis in service of such claims to be advanced in the trial court. Similarly, Justice Donohue, in a concurrence, found Bishop to be a red herring because Shivers did not raise the correct claim at all, under either the federal or Pennsylvania constitutional frameworks.
A couple of points here. First, as Punxsutawney and the bevy of decisions cited therein demonstrate, this Court is willing to consider and oftentimes ultimately protect the right to be free from unreasonable searches and seizures, particularly where federal law has created less than intellectually robust exceptions to it. Future defendants should be raising this claim in pretrial motions to suppress.
Second, they should be raising it thoroughly. Despite the Court’s now decades-long attempts to create solid principles of waiver doctrine, courts and judges frequently differ on whether a litigant has done enough to preserve an issue in the trial court. The text of the pertinent rule is that “[i]ssues not raised in the trial court are waived and cannot be raised for the first time on the appeal.” Pa.R.A.P. 302(a). That rule emanates from Dilliplaine v. Lehigh Trust Co., which held that a party must raise objections in the trial court to give opposing parties the chance to respond, and a trial court a chance to act with respect to, and speak to, an issue, before raising it on appeal.
But the devil is in the details. One problem is that, as one Justice has put it, “issues get waived; arguments don’t,” and one judge’s issue is another’s argument. Another is that judges have different views on whether and to what degree an advocate should advance legal analysis, such as an argument contrary to binding precedent, that a trial court is powerless to embrace. A facet of this is the Court’s 2019 decision in Bishop holding that parties advancing departure claims must identify the state constitutional basis and provide “some” analysis in support of it. A third is that judges have different views on the relative value of waiver-based and merits-based decisions, either generally, or in particular circumstances.
All of which is to say this. It is probably true that a defendant seeking to raise the Shivers issue again does not need to file a suppression motion containing a complete Edmunds analysis. But it certainly doesn’t hurt, and the litigants in Shivers have already done most of the work. The issue remains live, and the Court is already poised to resolve it. One suspects at least one more Groundhog Day, and, appropriately enough, perhaps one more Punxsutawney on the way.
On the allocatur side, I’m most interested in Poteat v. Asteak. Apart from having a strong claim to overtaking Cheeseman v. Lethal Exterminator as Pennsylvania’s most unintentionally funny case name, the case will give the Court an opportunity to speak to the continuing vitality and scope of Pennsylvania’s “gist of the action doctrine.” For years, plaintiffs bringing claims that arguably sounded in tort and/or contract found themselves up against courts using the doctrine to force the claim into one category or the other. Last year, in Swatt v. Nottingham Village, the Superior Court effectively ended that practice, at least one-way, holding the doctrine is actually only a means to dismissing tort claims that sounded in contract, and did not actually impact contractual rights or causes of action in contract. Many lawyers expected a grant of allocatur, but, in December, the Court denied review. In Poteat, the Court may have the opportunity to address Swatt’s holding, as well as the Superior Court’s more proximate holding that a claim of legal malpractice based on incompetent performance, because every contract for legal services contains an implied promise of competent representation, also sounds in contract.
One facet of the conversation around the gist of the action doctrine is Pennsylvania’s conception of tort and contractual duties, and how they overlap. In the abstract, they are distinct. A party’s conduct and relationships trigger socially-imposed tort duties. A party’s promises, supported by consideration, give rise to contractual ones. But in practice, obviously, conduct subsumes the establishment of relationships and the making of promises, and promises carry implications of care to promisees and sometimes others. The gist of the action doctrine tries to hold the proverbial line between two categories that are sometimes inextricably intermingled. But more practically, the Court’s decision will have profound impacts on all sorts of tort and contract cases as it pertains to accrual, statutes of limitations, and, perhaps most importantly, the categories of available damages. It will be interesting to see the Court revisit it and whether it tightens, or, as the Superior Court did, loosens, the doctrine’s prior grip on tort and contract actions.
Precedential Opinions
Punxsutawney Hunting Club, Inc. v. Pa. Game Commn., 23 WAP 2023 (Opinion by Brobson, J.) (holding that an individual who has taken steps to exclude intruders from open fields may demonstrate a reasonable expectation of privacy therein pursuant to the Pennsylvania constitutional right to be free from unreasonable searches and seizures, and holding statutes providing Game Commission officers a right of warrantless search of open fields facially unconstitutional)
See also Concurring Opinion by Donohue, J.
See also Concurring Opinion by Mundy, J.
Adams v. Ofc. of Attorney Gen., 4 WAP 2025 (Opinion by McCaffery, J.) (holding Commonwealth Court erred in granting summary relief in a Whistleblower Action against the Attorney General’s Office)
Commonwealth v. Osman, 81 MAP 2024 (Opinion by Donohue, J.) (holding that a mandatory minimum sentencing provision for individuals convicted of multiple Tier-I or Tier-II sexual offenses applies only in the context of recidivism)
See also Concurring Opinion by Dougherty, J.
See also Concurring Opinion by Brobson, J.
See also Dissenting Opinion by Wecht, J.
Commonwealth v. Sutton, 90 MAP 2024 (Opinion by Donohue, J.) (holding orders granting pretrial dismissal of criminal charges are interlocutory subject to several exceptions and quashing appeals from two such orders)
See also Concurring Opinion by Brobson, J.
See also Dissenting Opinion by Mundy, J.
Lukasik v. Scotchlas, 14 MAP 2025 (Opinion by Donohue, J.) (holding Superior Court erred in relying on original-jurisdiction matter to reversing trial court decision with respect to sanctions for trial-court-level conduct).
Commonwealth v. Hitchner, 69 MAP 2024 (Opinion by McCaffery, J.) (holding unproven allegations of absconding to not toll or extend probation)
Samsung v. RI Settlement, 61 EAP 2024 (Opinion by Donohue, J.) (holding insurers of hotel remain obligated to defend and indemnify in instance of insured’s negligent enabling of sex trafficking notwithstanding public policy against sex trafficking)
See also Concurring Opinion by Wecht, J.
Commonwealth v. Steadly, 62 EAP 2024 (Opinion by Donohue, J.) (holding that Commonwealth must prove validity of warrant underlying arrest to establish lawful-arrest element of resisting arrest)
See also Concurring Opinion by Dougherty, J.
See also Dissenting Opinion by Mundy, J.
Commonwealth v. Shivers, 50 EAP 2024 (Opinion by Dougherty, J.) (holding claim that flight in high-crime area was insufficient to support investigate detention under Pennsylvania constitutional right to be free from unreasonable searches and seizures waived for failure of development)
Other
In re: Amendment of Rule 5.5 of the Pa. R. Profl. C., 272 Disc. R. Dkt. (Order) (adding comment recognizing out-of-state attorneys’ ability to remotely practice law in their states while within Pennsylvania absent holding themselves out as Pennsylvania lawyers or providing intrastate services)
Commonwealth v. Serrano-Delgado, 105 MAP 2024 (offering differing opinions with respect to the use for cross-examination of character witnesses of prior juvenile adjudications of delinquency)
Allocatur Grants
Goldata Computer Servs., Inc. v. Dept. of Banking and Securities, 9 EAL 2026 (granting review to consider whether state constitutional right to a jury trial requires a jury trial in the context of securities fraud and actions in debt)
Poteat v. Asteak, 23 MAL 2026 (granting review to consider the Superior Court’s holding that the gist of the action doctrine does not apply to claims of legal malpractice)
Commonwealth v. Griggs, 48 MAL 2026 (granting review to consider whether the grading of criminal mischief depends upon intended loss of value or actual loss of value)
Toppy v. Passage Bio, Inc., 486 EAL 2025 (granting review to consider whether statutory mediation privilege can be waived via disclosure in related litigation)
Novak v. Layser, 156 MAL 2026 (granting review to consider whether a signature under seal creates a rebuttable presumption of consideration)
Lexie v. Washington Cnty. Tax Claim Bureau, 15 WAL 2026 (granting review to consider the proper measure for determining the value of improvements to real estate)
Hagans v. Hosp. of Univ. of Pa., 408 EAL 2025 (granting review to consider whether a hospital can be held liable for the acts of agents not alleged to be or found directly liable and the proper formulation of Pennsylvania’s increased-risk causation standard)*
The undersigned was counsel for an amicus curiae in this matter below.
