May 2026 Docket Review
This month, the Court issued six precedential opinions and one allocatur grant.
Probably the most widely applicable decision this month is Downingtown Area Sch. Dist., which may well impact every Pennsylvania landowner. In that case, a holding company challenged a school district’s policy of appealing property tax assessments only when the appeal would generate $10,000 or more in additional revenue, which in this case meant only fifteen commercial properties in the district. (There were additional case-specific issues in the application of the policy as well.) The company argued that the policy effectively discriminated against some landowners, particularly commercial landowners, and violated Pennsylvania’s Uniformity Clause, which requires uniform taxation within the same class of subjects.
In a 4-3 majority opinion authored by Justice Mundy, the Court rejected the claim, holding that the use of a revenue-based threshold, “without more,” does not violate uniformity principles. The majority noted that the policy represents the district’s attempt to ensure that litigating an appeal is worth the anticipated revenue, does not distinguish between subclasses of property such as residential and commercial property, and, in its view, tends to enhance uniformity by appealing the assessments of properties that are most nonuniform. The majority thus arguably embraced a view of the Uniformity Clause as prohibiting disparate treatment of landowners, but perhaps not disparate impact upon them.
Justice Donohue, joined by Chief Justice Todd and Justice Dougherty, dissented. Justice Dougherty also wrote separately, joined by Chief Justice Todd and Justice Donohue. The dissents highlighted that the policy creates a classification between higher-revenue-value and lower-revenue-value properties and their owners and, while making the litigants’ assessments more uniform as compared to an ideal, creates a more longitudinal problem. While high-revenue-value properties are often appealed and reassessed, lower-revenue-value properties are virtually never reassessed. Over time, commercial and other high-value landowners, along with new home purchasers, end up paying taxes based on what their properties are currently worth, while others pay taxes based on what their properties were worth, sometimes even decades ago. In effect, commercial entities and new home buyers come to disproportionately finance local and school-district operations. The dissenting Justices also observed that although a legislative requirement of regular global reassessments would solve this problem, such a requirement is, obviously, politically unpopular, and that the Uniformity Clause was adopted in part to prevent the government from imposing tax burdens on some for the sake of political popularity with others.
For my part, I’m most interested in where these views could converge in the future. The key question is what falls within the phrase “without more.” In her dissent, Justice Donohue infers that the majority was referring to de jure discrimination on the basis of property type. But perhaps “without more” is not so much formal as evidentiary. One can imagine a revenue threshold having only a modest disparate impact in a community with frequent global reassessments or relatively few high-dollar properties. One can imagine a wholly different impact in, say, Center City Philadelphia, Downtown Pittsburgh, or a booming suburb full of new-build homes. Perhaps “more” is simply a more developed record showing the rule’s application over time. Justice Dougherty, in his dissent, reads the majority’s analysis as precluding such a challenge. But cases are read against their facts, and when the facts of a new case are undeniable, perhaps there is still a crack in the proverbial door.
Another point that I’d make is that the coalitions of Justices on this case are interesting, and don’t correspond to convenient narratives about ideology. That’s usually a sign that the Justices are doing their level best to read the law, not the tea leaves, particularly in the context of a referendum on whether the Constitution permits a structure that requires wealthier landowners to pay more tax.
I’m also interested in Peters, in which the Court reiterated—or, depending on how one views it, resolved—the standard for malice under Pennsylvania criminal law.
The standard has always been somewhat murky. Under the common law, malice was generally defined as a mental state just shy of intent, or its functional equivalent: extreme recklessness demonstrating a depraved heart and wanton disregard for human life. The classic example was firing a weapon into a crowd. The ALI’s Model Penal Code dispensed with this mental state entirely, dividing culpability into intent, knowledge, recklessness, and gross negligence (and, exceptionally rarely, strict liability).
Pennsylvania law, however, although broadly adopting the Model Penal Code, retained the concept of malice, and the cases have described it in different ways. Sometimes malice was framed narrowly as recklessness under circumstances in which death was “virtually certain to occur.” Other times it was described more generally as recklessness under circumstances “manifesting an extreme indifference to human life” or involving a “conscious disregard of an extremely high risk that conduct might cause death or serious bodily injury.” The former is not actually more stringent than the latter, but it sounds that way: it gives practical dimension to what “extreme” indifference means.
Over the years, judges leaned on one or the other formulation as context invited. During the War on Drugs, for example, efforts to bring drug-related conduct resulting in death within the ambit of third-degree murder were often routed through the view that the provision or administration of drugs represented “extreme indifference to human life.” On the other hand, judges resistant to bringing DUI-related killings and injuries within the ambit of third-degree murder and aggravated assault emphasized that although driving under the influence is certainly reckless, it is not virtually certain to cause death or injury as such.
Although some of this ambiguity has been rendered moot by the General Assembly’s creation of new offenses such as drug delivery resulting in death and aggravated assault by DUI, the issue became a major feature of DUI-related litigation, to the point that some advocates viewed it as creating a “DUI-specific” malice standard. In Peters, the Court rejected that view, observing that “malice is malice” and reciting the third formulation above.
What is interesting about Peters to me is that, despite this being a relatively normative question about what malice requires, the opinion is unanimous. I would attribute that to a couple of features.
First, the opinion uses both formulations, albeit reciting the third in its holding. It discusses the “virtually certain” language as one manifestation of extreme risk, which is correct, but does not address whether there may be daylight between the two formulations.
Second, and relatedly, the facts would likely satisfy either standard. Peters consumed enough alcohol to reach a blood alcohol content twice the legal limit, rejected a ride from a coworker, was unable to operate a parking garage pay station, manually lifted the mechanical arm to exit the garage, drove through a stop sign, entered the highway, drifted over the fog line, sideswiped another car, randomly shifted speeds far above and below the speed limit, missed his exit twice, and, despite traveling 113 miles per hour, continued driving while retrieving his phone from a backpack on the passenger-side floor before ultimately causing a crash.
It remains to be seen whether, in a closer case, the Justices might retreat to different semantic corners.
Finally, a blog note: this month, I am beginning to include links to the Court’s oral argument sessions when available. I will include links both to the audio recordings hosted on the Court’s website and, where available, to the video sessions provided by the Pennsylvania Cable Network. The former are free. The latter are free to view on desktop, though an account is required for viewing on mobile devices and some smart TVs. (It would not be a bad idea to send a few extra dollars PCN’s way by subscribing; it is a nonprofit that does excellent work and receives no tax appropriations.)
These recordings are an incredible resource—not only for those interested in the Court, but for anyone who simply wants to become a better advocate. The quality of advocacy varies, and they offer a valuable opportunity to see what works and what does not.
May Session Links
Precedential Opinions
Commonwealth v. Peters, 1 MAP 2025 (Opinion by Dougherty, J.) (reiterating standard for malice and clarifying lack of DUI-specific standard for malice)
Commonwealth v. Foster, 12 WAP 202 (Opinion by Dougherty, J.) (holding ShotSpotter alert, defendant’s sole presence in area shortly thereafter, defendant’s police-evasive behavior, and late hour supported reasonable suspicion of criminal activity and therefore investigative detention)
See also Concurring Opinion by Mundy, J.
See also Dissenting Opinion by Donohue, J.
See also Dissenting Opinion by Wecht, J.
Downingtown Area Sch. Dist. v. Chester Cnty. Bd. of Assessment, 45 MAP 2024 (Opinion by Mundy, J.) (holding school district’s revenue-based targeting of properties for real estate assessment appeals did not violate Pennsylvania constitutional requirement of Uniform Taxation)
See also Dissenting Opinion by Donohue, J.
See also Dissenting Opinion by Dougherty, J.
PSP NE, LLC v. PWAB, 38 MAP 2024 (Opinion by McCaffery, J.) (clarifying factorial test for whether work is “public” for purposes of Prevailing Wage Act and holding construction of State Police headquarters was public work)
See also Concurring Opinion by Mundy, J.
In re: Dravo LLC, 33 WAP 2024 (Opinion by Brobson, J.) (holding claims against dissolved LLC were barred and clarifying that corporate veil-piercing is not a claim, but an equitable remedy)
In re Smith, 70 EAP 2024 (Opinion by Dougherty, J.) (holding that denial of motion for return of property constituted a “de facto forfeiture” requiring a demonstration of either evidentiary need or statutory authority)
See also Concurring Opinion by Wecht, J.
Allocatur Grants
B.A.S. v. Pa. Dept. of Educ., 267 WAL 2025 (granting review to consider whether certified affidavits of probable cause are competent evidence to establish that an educator has been charged with crimes for purposes of the Educator Discipline Act and directing it to be argued alongside a companion case)
