This month, the Court issued 14 precedential opinions and 5 grants of allocatur.
On the opinion side, the case with the widest application is definitely Lutheran Home. Although it is nominally about the proper interpretation of regulations regarding Medicare reimbursements, it is actually about whether and to what degree Pennsylvania courts must or may defer to an agency’s interpretation of its own regulations. Since the early 1970s, Pennsylvania’s Statutory Construction Act provided that courts interpreting statutes and regulations should, if they are textually ambiguous, consider several factors including legislative and administrative interpretations. The SCA does not set up a pecking order for those factors, but, rather, directs courts to consider them holistically. That said, there were lots of decisions that treated the SCA like more of a suggestion in the early years.
Concomitantly, beginning in the 1980s and in cases up through the Court’s decision in Tire Jockey v. DEP (2007), the Court borrowed a federal framework for considering agencies’ interpretation of their own regulations: center the agency’s interpretation, consider whether it is plainly erroneous or inconsistent with the regulation itself; consider whether it is inconsistent with the statute under which the regulation is adopted. There was also room to consider whether the agency’s interpretation was authentic as compared to say, an about-face from a prior position invented during the course of litigation.
Of course, that standard appears nowhere in, and doesn’t look very consistent to the SCA. The SCA treats agency interpretation as one factor among many in interpreting regulations. Tire Jockey treats it as the starting point and looks for inconsistency with the regulations.
And since Tire Jockey, both federal and Pennsylvania courts have become less sanguine about deference. On the federal side, the U.S. Supreme Court limited deference to agency interpretations of regulations in Kisor v. Wilkie (2019) by interposing a requirement and series of steps to evaluate whether a regulation is “truly” ambiguous. And later, in Loper Bright Enterprises v. Raimondo (2024), it gutted deference to agency interpretations of statutory text entirely. Here in Pennsylvania, the Court in a series of decisions beginning in 2018 expressed less and less confidence that agencies were in a better position, either competence-wise or authority-wise, to decide the meaning of administrative laws and regulations.
Against that backdrop, the nursing homes in Lutheran Home thought they might be able to undermine Tire Jockey: either by importing Kisor or eliminating deference entirely. They formally didn’t get either of those, but they did get something. In an opinion authored by Justice Dougherty, the Court held that while the Tire Jockey framework remains in place, the first step of its analysis — the question of an interpretation’s conflict with the regulation - must be done under the aegis of the SCA and its holistic test. What does this mean in practice? An agency’s interpretation is not controlling. But it must be “considered.” It may be considered for more than its persuasive value. And the weight to be assigned to any of the factors is up to the court. That formally still centers the agency’s regulation, but functionally means courts are going to have more to say about what the law really means than before.
Justice Donohue, for her part, authored a concurring and dissenting opinion that would have dispensed with Tire Jockey in favor of the SCA, and Justice Wecht authored a dissent expressing the view that an agency interpretation is effectively just one litigant’s opinion as to the meaning of the law.
For my part, I’m not sure how much daylight is actually between all of these approaches. But the case is a great example of the Court’s increasing return to more formal constitutional and interpretive principles that promote its independence. Here, that independence comes from stare decisis and separates the Court from federal courts, whose expressions in this area emanate from a different statutory framework and are in flux, and from the Executive branch agencies, whose positions change with administrations and political winds. In other cases, it has come from textualism, and separates the Court from legislators’ intent, as compared to Legislative intent manifest in statutory text.
A generation ago, in a different political and cultural context, some scholars viewed this kind of formalism as passe. They viewed courts as something on the order of a partner in a conversation among neighbors about the meaning of the law. Perhaps that made sense at the time. But today, where disputes are sharper and values less ubiquitous, the Court’s focus on what it was elected to do, and not do, channels Robert Frost: “Good fences make good neighbors.”
I’m also interested in Freilich, which involved a constitutional challenge to the Sovereign Immunity Act’s caps on damages. The case is less interesting for its holding — which is that an as-applied challenge that the caps violated the constitutional right to remedy failed on the force of the same logic that a facial challenge previously did, secondary opinions encouraging the as-applied challenge notwithstanding — and more for what it suggests the next case might be. Justice Donohue, joined by Justice McCaffery, authored a dissenting opinion indicating that the caps might not be constitutionally permissible at all based on a provision prohibiting the Legislature from adopting caps outside the workers’ compensation context. An earlier case had held this provision applied only to private causes of action, but the dissenters would have reconsidered that case sua sponte and overruled it. And Justice Dougherty, joined by Justice Mundy, stopped short of addressing the issues sua sponte, but called the dissenters’ arguments “forceful” and suggested that absent some Legislative act, they could well win the day in the end. So a case that some viewed as perhaps the last gasp of challenges to the caps seems to have been a conduit for everyone to take a long, deep breath and prepare to talk more. Perhaps that conversation will happen in the Legislature, but perhaps it will be in the Court.
On the allocatur side, I’m most interested in two criminal cases, Young and Clayborne. In the former, the Court has agreed to take up Superior Court precedent narrowing its scope of mandatory, expedited review of bail decisions to exclude constitutional challenges. In the latter, a due-process challenge to detention for an alleged violation of probation before an adjudication that exceeds the maximum penalty for the violation. Both of these cases involve situations in which a procedural doctrine at issue is resulting in or at least risking substantively illegal confinement. It will be interesting to see where the court lands.
Precedential Opinions
Commonwealth v. Jenkins, 66 MAP 2026 (Opinion by Todd, C.J.) (holding a prosecutor’s reference to a defendant’s hiring of counsel for assistance during a police interview was improper, but that the error was harmless)
See also Concurring Opinion by Wecht, J.
See also Concurring Opinion by Mundy, J.
Commonwealth v. Gaspard, 19 MAP 2025 (Opinion by Donohue, J.) (holding a defendant’s failure to disclose income that would not have affected her eligibility for public benefits was not of pecuniary significance and was thus insufficient to support a conviction for theft by deception)
See also Concurring Opinion by Mundy, J.
Lutheran Home v. Dept. of Hum. Servs., 7 MAP 2025 (Opinion by Dougherty, J.) (holding that courts reviewing agency interpretations of administrative regulations must follow the Statutory Construction Act as opposed to any different rubric for deference)
Commonwealth v. Worzel, 36 MAP 2025 (Opinion by Wecht, J.) (holding that where a DUI-ARD participant violates the conditions of ARD, the trial court has discretion with respect to sanctions)
Freilich v. SEPTA, 10 EAP 2024 (Opinion by Todd, C.J.) (holding that the damage-cap provisions of the Sovereign Immunity Act are not unconstitutional as applied to cases in which a plaintiff’s potential recovery is subsumed by the costs of litigation)*
See also Concurring Opinion by Dougherty, J.
See also Concurring Opinion by Wecht, J.
See also Dissenting Opinion by Donohue, J.
Krasner v. Sunday, 49 EAP 2024 (Opinion by Todd, C.J.) (holding that a statute providing for a special prosecutor for SEPTA-related crimes in Philadelphia is not an unconstitutional infringement on the Philadelphia District Attorney’s Office’s jurisdiction or an unconstitutional local or special law and that the District Attorney lacked standing to raise other claims based on the rights of criminal defendants)
See also Concurring Opinion by Wecht, J.
Alsyrawan v. Dept. Hum. Servs., 87 MAP 2024 (Opinion by McCaffery, J.) (holding that litigants claiming a violation of the Free Exercise Clause need only demonstrate a burden, rather than a substantial burden, on religious exercise)
Commonwealth v. Cassell, 22 MAP 2025 (Opinion by McCaffery, J.) (holding delivery of a controlled substance for purposes of the Drug Act and related statutes subsumes delivery to a co-user)
See also Concurring Opinion by Wecht, J.
Aita v. NCB Mgmt. Servs., 25 MAP 2025 (Opinion by Mundy, J.) (holding an employee may not bring an action for liquidated damages under the Wage Payment and Collection Law after an employer pays all owed wages and statutory interest)
See also Dissenting Opinion by Wecht, J.
Whittington v. Daniels, 47 MAP 2025 (Opinion by Mundy, J.) (holding that filing a complaint before a magisterial district court tolls the statute of limitations for any cause of action predicated on the factual allegations in the complaint)
Smith v. Kannarkatt, 17 MAP 2025 (Opinion by Brobson, J.) (reaffirming increased-risk-of-harm causation standard in negligence actions)*
Conyngham Twp. v. PUC, 34 MAP 2025 (Opinion by McCaffery, J.) (holding PUC’s jurisdiction over municipal corporations does not extend to municipal authorities operating outside their incorporating municipalities)
See also Dissenting Opinion by Brobson, J.
City of Phila v. FOP Lodge No. 5, 59 EAP 2024 (Opinion by Donohue, J.) (reiterating that appeals from grievance arbitration awards under the Policemen and Firemen Collective Bargaining Act are subject to narrow certiorari review and not subject to any public policy exception)
Commonwealth v. Outlaw, 48 EAP 2024 (Opinion by Wecht, J.) (holding courtroom spectator’s hurling of insult at presiding judge did not cause a substantial interruption to judicial proceedings sufficient to support a conviction of obstruction of justice)
See also Concurring Opinion by Mundy, J.
October Session Links
October 14, 2026 Session: Youtube | PCN
October 15, 2026 Session: Youtube | PCN
Allocatur Grants
Commonwealth v. Choice, 50 MAL 2025 (granting review to consider the constitutionality of a search of a mobile phone based in part on geofence data pursuant to the Pennsylvania constitutional protection against unreasonable searches and seizures)
Commonwealth v. Young, 61 WAL 2026 (granting review to consider Superior Court’s determination that specialized review of bail decisions does not include constitutional challenges)
Commonwealth v. Oglesby, 133 EAL 2026 (granting review to consider whether a statute providing for violation-of-probation sentencing is predicated on the number of revocations or the number of violations)
CVS Pharmacy v. City of Phila., 188 EAL 2026 (granting review to consider challenge to City of Philadelphia’s public nuisance action against distributors of opioids)
Commonwealth v. Clayborne, 229 MAL 2026 (granting review to consider probationer’s due process challenge to pre-Gagnon-II-hearing confinement exceeding the maximum sanction and the substantive violation)
*This author was among the counsel for parties in Freilich and Smith.
