June 2026 Docket Review
This month, the Court issued 4 precedential opinions and 2 grants of allocatur.
On the opinion side, there are two headline-grabbing opinions this month. In In re: Three Pennsylvania Skill Amusement Devices, the Court addressed the nature, and, by extension, the legality of “skill games” in Pennsylvania. The saga surrounding skill games actually starts centuries ago, but suffice it to say that the law of gaming and gambling in many states has developed around a three part test: an activity is regulated gaming (or illegal gambling) if it involves a bet, a game of chance, and an outcome-based reward. With respect to this second element, there are jurisdictional differences as to what a game of chance is. In Pennsylvania, the chance elements of the game must “predominate” over the skill elements in determining the outcome. The idea here is to regulate or prohibit games like, say, roulette, but not things like, say, free-throw contests.
The test is a good one in theory, but the line drawing problem is a difficult one. And the test almost invites game developers to get really close to the line and develop something that is not quite, but is pretty close to, gambling. Several years ago, some game developers created a game that had two components: first, a tic-tac-toe style game that had some skill elements but functioned a lot like a slot machine; and, second, a Simon-style game which allowed someone with sufficiently good memory to regain his entire bet and then some. After a 2014 Beaver County decision sanctioned the game as not a game of chance, but a game of skill, the games became ubiquitous in Pennsylvania. Gaming regulators, casinos, and prosecutors (a tough trio of opponents if ever there was one) argued the games were illegal under a tranche of theories, but to no avail in the lower courts. Meanwhile, Legislative efforts at regulating or outlawing the games never gained traction.
In its decision, a majority of the Court effectively held that the Gaming Act’s regulation of “slot machines” and “skill slot machines” and “hybrid slot machines,” and the Crimes Code’s prohibition of unlicensed “slot machines,” applied to the skill games at issue, regardless of the application of the predominant factor test. Justice Donohue, for her part, authored a concurrence with a different doctrinal pathway to the same result.
The decision is noteworthy less for its statutory interpretive or decisional aspects and more for its remedy and potential impact. The scope of individuals and entities involved in the skill games industry in Pennsylvania is (maybe was) massive, and the industry was operating based on several lower court decisions that, it turns out, wrongly, held that their activities were not unlicensed gaming or illegal gambling when they were. The potential for sanctions is equally massive. Perhaps recognizing as much, the Court stayed its decision for 120 days, ostensibly to allow the Legislature to take curative action in the form of legalization, regulation, and/or some kind of amnesty. Proposals appear to be part of the divided Legislature’s budget talks, but if no deal obtains, regulators and prosecutors will be in the proverbial catbird seat.
Also, in Brown, the Court issued a long-awaited decision in a King’s Bench case involving the Philadelphia District Attorney’s Office. In the case, family members of homicide victims brought an action challenging the District Attorney’s handling of a convicted killer’s postconviction action: most centrally, his averment and stipulation to facts that they viewed as unsupported and concession of the killer’s entitlement to relief. The Court exercised King’s Bench jurisdiction to address the case, and the District Attorney’s broader conduct in litigating postconviction matters, ultimately finding the District Attorney had a “checkered” record of conceding the propriety of postconviction relief. A majority of the Court reiterated an earlier holding that postconviction courts have an independent duty to find that relief is warranted, reversed the postconviction court’s order granting relief, and, based on what it viewed as systemic issues in , directed that whenever the District Attorney’s Office concedes relief, the postconviction court should notify the Attorney General and offer it the opportunity to intervene. Justice Donohue, joined by Chief Justice Todd, penned a concurring and dissenting opinion that would not have granted King’s Bench review and would merely have addressed the case at bar. Justice Wecht offered a blistering dissent as to most aspects of the opinion, and even indicated the majority in adopting its remedy was violating the constitutional separation of powers.
It is difficult to separate the decision from the political and personal narratives surrounding the elected Philadelphia District Attorney. But for my part, I am less concerned about whether the decision was correct, or intrudes on prosecutorial authority, and more concerned about the problems regarding postconviction cases that have gone unaddressed for far longer. The majority in granting King’s Bench review and in its discussion in Brown cognized prosecutors’ concessions of relief and trial courts’ blind acceptance of them as commonplace and of substantial public importance. And given that the majority identified that the Philadelphia District Attorney’s Office conceded relief over 100 times since 2018, perhaps that is true (albeit that translates to roughly 12.5 times per year in a jurisdiction with roughly 15,000 new criminal cases each year).
But as someone who spent several years litigating postconviction matters, as broad systemic problems with postconviction litigation go, prosecutorial concessions and trial-court complacency are low on the priority list. Petitioners often don’t learn from counsel that they can seek post-conviction relief, and only learn as much when a fellow inmate tells them. Counsel are often dabblers in the incredibly complex field, or appointed at obscenely low rates (in some counties, as low as a flat fee of $500 for an entire case, which is scarcely enough to even contact the defendant and prepare a file at prevailing rates). Counsel often conduct little to no investigation and file legally inappropriate no-merit letters that undermine their clients’ rights. Counsel who do investigate claims are often met with prior counsel’s evasiveness, or communication and cooperation with prosecutors, in an effort to avoid a finding that they have been ineffective. Petitioners are not entitled to discovery in the absence of extraordinary circumstances. The litigation of postconviction claims is beset on all sides by procedural traps and confusing statutory interpretations unmoored from statutory text, let alone justice. And often times, particularly in places that do not get many postconviction cases, basic concepts of postconviction review are often treated like they are foreign, with their mistakes dissolved in the tincture of the deferential standard of review on appeal. Indeed, it bears mention that, just last month, a ProPublica/Philly Inquirer article underlined just how poor postconviction representation is in Philadelphia: appointed counsel fail to contact the client, or prior counsel, or get the file, “about three quarters of the time,” and filed no-merit letters in roughly 50 of 250 cases since 2018 in which Philadelphia judges ultimately granted some form of collateral relief.
It may well be that the Philadelphia District Attorney’s Office is conceding relief too often, and that the Court’s action here, and further actions surrounding prosecutorial concessions, are justified. But to the extent that the Court is interested in evaluating systemic problems in postconviction cases, in a proper case or via its rules committees, it should address the ones above, too.
Finally, I would be remiss if I didn’t mention that Justice Wecht issued several concurring statements this month in connection with cases denying or dismissing appeals. These statements can often provide clarity on issues the court or some Justices may want to consider in future cases, even if present opportunities, for practical reasons, elude them. Smart practitioners should treat these statements as valuable insights into the often oracle-seeming allocatur process and not only take the specific lessons about the issues the Court wants to hear, but also the general lessons about how to protect their good issues from bad advocacy.
Precedential Opinions
In re: Three Pennsylvania Skill Amusement Devices, 50 MAP 2024 et al. (Opinion by Wecht, J.) (holding that certain “skill games” constituted slot machines were slot machines governed by the Gaming Act and subject to the prohibitions of the Crimes Code)
Commonwealth v. Black, 71 MAP 2024 (Opinion by McCaffery, J.) (holding that theft by deception is not a continuing offense, but receiving stolen property is a continuing offense so long as the property is retained, for purposes of the applicable criminal statutes of limitations)
See also Concurring Opinion by Brobson, J.
Commonwealth v. Brown, 32 EM 2023 (Opinion by Dougherty, J.) (holding that the Philadelphia District Attorney’s Office acted inappropriately in connection with its investigation and concessions in a postconviction case and that such conduct was systemic and required a remedy in the form of notice to the Attorney General and the opportunity to intervene in all cases in which it concedes the propriety of relief)
See also Concurring Opinion by Brobson, J.
See also Concurring Opinion by McCaffery, J.
See also Dissenting Opinion by Wecht, J.
700 Pharmacy v. Bureau of Workers’ Comp., 97 MAP 2024 (Opinion by Mundy, J.) (holding Anti-Referral Provision of Workers’ Compensation Act applies only to items enumerated therein)
See also Dissenting Opinion by Wecht, J.
See also Dissenting Opinion by McCaffery, J.
Other
Wentz v. Wentz, 197 MAL 2026 (denying review of whether consideration of custody-related relocation factors was required in the context of a change of residence and a trial court’s remarkable about-face in its exercise of fact finding and credibility functions, with Justice Wecht and Justice McCaffery concurring, highlighting that the issues were of first impression, but recognizing they were not adequately developed)
Commonwealth v. Lowrey, 57 MAP 2025 (dismissing appeal regarding whether Superior Court correctly held that Vehicle Code provision prohibiting failure to signal does not apply to failure to signal leaving a parking lot, with Justice Wecht concurring, highlighting that the Vehicle Code’s lack of clarity led to a waste of law enforcement and judicial resources)
Commonwealth v. Harris, 21 EAL 2026 (denying review of appeal from juvenile decertification decision mooted by the child’s reaching the age of 21, with Justice Wecht and Justice McCaffery concurring and identifying that that the issue is often mooted and associated procedural problems)
Allocatur Grants
Commonwealth v. McFarland, 69 MAL 2026 (granting review to consider the applicability of ability-to-pay-fine provisions)
Rivera v. Borough of Pottstown, 22 MAL 2026 (granting review to consider the validity of administrative warrants to search homes and “dragnet searches” under state constitutional right to be free from unreasonable searches and seizures)
* This author was counsel for amici curiae in these cases.
