November 2025 Docket Review

The big news this month is not about what’s on the docket, but, rather, about who will be on the bench. All three of Justices Donohue, Dougherty, and Wecht, as well as Judge Alice Beck Dubow of the Superior Court, and Judge Michael Wojcik of the Commonwealth Court, were retained in November’s general election, despite recordbreaking partisan funding and effort to unseat them. It wasn’t close. The retention Justices and Judges each received roughly 62% of the vote, running about 7 points ahead of Washington County Court of Common Pleas Judge Brandon Neuman, the Democratic nominee and winner in the Superior Court race, and Philadelphia County Court of Common Pleas Judge Stella Tsai, the Democratic nominee and winner in the Commonwealth Court race. This result suggests that roughly 7% of voters voted both for retention and for Republican nominees for the intermediate appellate courts. That suggests that the retention framework is good for about 7 points, enough to cover the partisan spread, in even the most hostile of environments. And that suggests that perhaps partisan actors will consider that their money and time is perhaps better spent in partisan elections in the future. The results are most proximally satisfying for those retained and elected, but are certainly comforting to Justice Mundy, Justice Brobson, and the nearly dozen intermediate appellate court judges up for retention in the next four years.

Turning to the docket, this month, the Court issued 4 precedential opinions and 2 grants of allocatur, summarized below.

On the opinion side, I’m most interested in Smith, in which the Court held that the unit of prosecution of arson endangering persons is each arson, not each endangered person. For those unfamiliar, the Court’s “unit of prosecution” framework is a concept it uses in criminal statutory interpretation cases and nominally asks whether the Legislature has criminalized an act that happens to harm victim or victims or has criminalized the act of harming victims. This requires a close reading of an offense and identification of the offense’s actus reus as differentiated from its other elements, and has roots in double-jeopardy norms that a person can only be constitutionally punished once for a single criminal act. In Smith, the Court looked to the offense of arson endangering persons, which criminalizes, effectively, intentionally starting a fire and thereby recklessly placing another in danger of bodily injury. Smith, flanked by a panel decision and an en banc dissent below, argued that the actus reus was intentionally starting a fire, and that the word “thereby” indicated causation, making recklessly placing another in danger a result. The Commonwealth, consistent with the trial court’s decision and the en banc majority, argued that the actus reus was compound: intentionally starting a fire and recklessly placing.

In an opinion authored by Chief Justice Todd, the Court found both constructions to be textually reasonable and consistent with other indicators of legislative intent, but adopted Smith’s construction based on the Rule of Lenity, noting that the Rule has constitutional dimensions rooted in Due Process — i.e., that when the Legislature wants to criminalize something and the Executive wants to deprive someone of life, liberty, or property, its authority should be clear—and that, in Pennsylvania, it is legislatively mandated by Section 1928 of the Statutory Construction Act.

The opinion will prevent a fair amount of overcharging, or at least mischarging, in arson cases: its holding likely carries over to a number of other arson offenses written in a substantially similar way, albeit prosecutors will still obviously be able to charge related offenses like murder, aggravated assault, recklessly endangering another person, and so on, on a per victim basis. It will also likely result in a fair number of appellate and postconviction decisions vacating arson convictions and sentences. But its real value is its reaffirmation of the Rule of Lenity, which is often overlooked in statutory interpretation cases.

I’m also interested in the Coleman case, which confronts a luckily not-to-common problem that the Legislature has written a statute and written a subsection that effectively nullifies it: here, a provision of the Sunshine Act requiring advance notice of public body agenda items subject to a few substantive exceptions and, central here, a fourth exception written as one that simply allows amendment of agendas. The statute lists the exceptions, all of them, in the disjunctive, so the major textual question is whether, effectively, “or means or.” Justice Donohue, writing for a majority in large part, explains that of course it does, and attempts to square the apparent incongruity. Justice Brobson, in concurrence, answers the textual question and ends there. Chief Justice Todd, in dissent, frankly identifies that the problem often leads to strained ambiguity analyses, and indicated her view that the case called for invocation of the rarely used exception in Section 1901 of the statutory construction act that the Court is not obliged to follow a textual approach when it is contrary to legislative intent, and a reading of the latter exception as less an exception and more a procedural pathway. Justice Wecht, also in dissent, explained his view that the statute was ambiguous because its literal reading would essentially render its bulk superfluous and unworkable, particularly in operation, and likewise adopted a view of the amendment exception as a procedural mechanism.

The opinion is interesting less for its holding — which is effectively that the General Assembly needs to amend this statute — and more for its illumination of two issues in Pennsylvania statutory interpretation law. First, the Statutory Construction Act has a lot of provisions that are often at cross-purposes in practice, and does not establish a heirarchy of principles to be followed. The Court in decisional law has centered its approach to some degree into a text-and-context first, presumptions and extrinsic indicators of intent second, approach that works in the vast, vast majority of cases and provides stable interpretive ground. But not all of them. And second, downstream, the Justices have different ideas about their role. Some are more formalist, some are more focused on the Court’s role in trying to make the law work, and the groupings are seemingly unrelated to their perceived politics. I call these issues, rather than problems, because together, they give the Court the ability to act with stability in simple cases, and flexibility to act with practicality in important edge cases, leaving up to the Justices which are which. Coleman is an interesting look into the Justices’ conceptions of the judicial task, and would fit well in Statutory Interpretation coursebooks.

Finally, I would be remiss if I did not mention perhaps my favorite decision of the Court this month: the Court adopted Rule 1930.11 of the Rules of Civil Procedure, a new rule identifying that a party need not include a “wet signature” on pleadings, verifications, and the like, and that a party need not file “original” agreements like agreed-upon orders. Throughout Pennsylvania, there has long been a patchwork of local rules that are, suffice it to say, behind the times. Some, like “wet signature” requirements, are nominally predicated on the idea that only a “real” signature counts. Others, like requirements of in-person filing and service of documents, requirements of motions to list motions for motions hearings (is there a requirement to list the motion for a motion hearing at a motion hearing), and even requirements that litigants pick up orders from judicial chambers and take them to prothonotaries’ offices, have less understandable rationales. But in effect, many of these rules do little more than raise the costs of litigation for out-of-town litigants and counsel. The Court’s adoption of Rule 1930.11 effectively preempts the “wet signature” rules and takes an important step into making the Unified Judicial System a little more unified.

Precedential Opinions

Commonwealth v. Blakeney, 817 CAP (Opinion by McCaffery, J.) (reaffirming rejection of presumption that facts in public records are known or could reasonably be discovered by petitioners for postconviction relief)

Commonwealth v. Smith, 15 WAP 2024 (Opinion by Todd, C.J.) (holding the unit of prosecution for arson endangering persons is each arson, not each endangered person)*

• See also Dissenting Opinion by Mundy, J.

Winig v. Office of the District Atty. of Phila., 32 EAP 2023 (Opinion by Brobson, J.) (holding high public official immunity protects district attorneys from actions for violations of the Pennsylvania Wiretap Act)

• See also Dissenting Opinion by Dougherty, J.

• See also Dissenting Opinion by Mundy, J.

• See also Dissenting Opinion by McCaffery, J.

Coleman v. Parkland Sch. Dist., 33 MAP 2024 (holding that a school board’s approval of a collective bargaining agreement fell within a “change to agenda” exception to the otherwise applicable notice requirement of the Sunshine Act)

• See Lead and Partial Majority Opinion by Donohue, J.

• See Concurring and Partial Majority Opinion by Brobson, J.

• See Dissenting Opinion by Todd, C.J.

• See Dissenting Opinion by Wecht, J.

*The undersigned was counsel for Mr. Smith.

Allocatur Grants

Erie Ins. Exch. v. Baluch, 163 MAL 2025 (granting review to consider dual recovery of liability and UM/UIM benefits violates the Motor Vehicle Financial Responsibility Law)

Commonwealth v. Santiago, 279 MAL 2025 (granting review to consider a claim that counsel’s voluntary termination of questioning about the defendant’s alibi constituted structural error and/or required a demonstration of preudice)