September 2026 Docket Review
This month, the Court issued 1 precedential opinion and 7 grants of allocatur.
On the opinion side, the Court in Carr effectively holds that a statutory provision requiring petitions for judicial review of common-law arbitration awards does not yield for “non-negligent happenstance.” Traditionally, a party has been able to skirt other, similar deadlines in limited circumstances: most notably fraud, breakdowns in court operations, and an attorney’s gross negligence (or, in the criminal context, ineffectiveness per se). The Court’s decision in Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), in which an attorney’s assistant fell ill and did not return to the office in time to file a notice of appeal, added to this universe “non-negligent happenstance.”
In Carr, the appellant’s attorney’s stepson unexpectedly died, and the attorney was attending to the funeral and mourners. In an opinion by Justice Mundy, the unanimous Court refused to extend Bass’ holding to carve out an exception to the statutory deadline for arbitration appeals. The holding stops short of overruling Bass, but certainly casts doubt as to its continuing vitality, beginning the core of its analysis with “[w]e believe that framework was ill advised to begin with,” and “unconvincing on its own terms,” explaining that Bass was atextual, and pointing to some of its more confounding applications: e.g., “why is a missing deadline due to a secretary’s illness non-negligent, but missing a deadline due to a family member’s unexpected hospitalization negligent?” Indeed, the Court expressed that, in its view, deadlines serve important purposes:
[C]ourts should not overlook that there are equities on the other side [of a late appeal]. Every resident of Pennsylvania is entitled to expect that statutory commands mean what they say. As such, parties involved in litigation have a right to anticipate that, if they prevail and the deadline for further review expires, they no longer have to worry about being deprived of the relief they obtained through ordinary and appropriate legal avenues. Learning they now have to defendant anew the judgment in their favor and possibly lose it, notwithstanding that the law as written says otherwise, is itself a form of hardship that often goes unacknowledged.
As a more general proposition, the predictable application of unambiguous written laws, subject only to constitutional limitations, is vital for a stable society even if their strict application sometimes causes hardship. Legislation cannot perfectly account for every scenario, which may occasionally make the law “hard and disagreeable.” 1 William Blackstone, Commentaries on the Laws of England *62 (4th ed. 1770). In this regard, Blackstone warned that if judges were allowed to resolve legal issues based on general fairness concerns over and against a plain legislative dictate, they would become lawmakers, which in turn would erode the rule of law and lead to unpredictable decisions. . . . We find these considerations germane to the issue presently before the Court.
The opinion is interesting in its own right, and as part of a larger constellation of cases in which the Court is increasingly focused on text, and judicial restraint in the form of keeping itself out of the business of lawmaking.
The Carr opinion also unexpectedly dovetails with the Court’s understated per curiam order in Galo-Ponce, which remands a felony-murder case to the trial court for “reconsideration” in light of this year’s Lee case, which held that Pennsylvania’s mandatory life-without-parole sentencing statute for felony murder violates the Pennsylvania constitutional prohibition on cruel punishments because it fails to provide any individualized assessment of culpability. Because consideration there will definitely be. Although Lee answered the constitutional question before it, it also raised a lot of others.
First, and most salient in Galo-Ponce, the principal problem is that the statute clearly and unambiguously does not provide for an individualized assessment and can’t be enforced as written. And the Court, particularly this Court, is not in the business of rewriting statutes, as Carr emphasizes well. So one might reasonably argue that there simply is no applicable and constitutionally permissible sentencing statute, and defendants should simply be discharged. Indeed, the Court’s decisions in Commonwealth v. McIntyre, 232 A.3d 609 (Pa. 2020), and Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), came to similar conclusions in the context of void criminal and sentencing statutes.
But that would be a remarkable outcome.
Of course, the Court stayed its Lee decision to give the Legislature the opportunity to address the issue, but the Legislature came to an impasse about what the solution (and/or the solution to other criminal sentencing issues) should be. So it will likely fall to the Court to fill the breach. Without a legislative fix, the closest reference point for this issue is likely the Court’s early-2010s experience with the United States Supreme Court’s decisions in Miller v. Alabama and Montgomery v. Louisiana, which held that mandatory life without parole for juvenile offenders violated the federal constitutional prohibition on cruel and unusual punishments. The Court in Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), held that the appropriate remedy for a violation of Miller was resentencing with an individualized assessment, rejecting Batts’ arguments that he should be sentenced under a “lesser included offense” of third-degree murder. That decision’s reasoning, however, was less than a model of statutory interpretation, and more animated by practical concerns over taking Miller too far. A few years later, in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017), the Court rejected similar arguments, but its rationale focused less on the sentencing statute at hand and more on Batts I, its compatibility with certain provisions of the Parole Code, and legislative acquiescence. A new legislative provision and these decisions also provided a substantive framework for trial courts in conducting individualized assessments, albeit subsequent U.S. Supreme Court decisions effectively abrogated a portion of that framework requiring a finding of “permanent incorrigibility.”
So what is a trial court to do with a defendant convicted of felony murder now? Doctrinally, it’s difficult to ignore that there’s no sentencing statute that can constitutionally be applied. But the Court has clearly resisted that view in adopting the Batts rubric. It remains to be seen whether the Court’s post-Batts emphasis on textualism and judicial restraint when it comes to statutory gloss will change things now.
Apart from that issue, there is also the question of whether Lee is retroactive, a question which the Court in Coffey granted allocatur. Again, analogy to Miller seems apt, but there are distinctions. The Court in the early 2010s held that Miller was not retroactive under federal retroactivity doctrine, only to have the High Court in Montgomery disagree. And it is difficult to get past the idea that a statute that is unconstitutional is void ab initio, particularly here, where the Court’s reasoning as to why it was unconstitutional was rooted in constitutional originalism about the meaning of a provision adopted in the 18th century.
Of course, the Legislature (or more frankly, perhaps the next Legislature), may step in to try to resolve the issues here. One imagines the Court would rather they did.
Precedential Opinions
Carr v. First Commonwealth Bank, 2 WAP 2025 (Opinion by Mundy, J.) (holding that there is no non-negligent happenstance exception to the requirement of a timely petition for judicial review of an arbitration award)
Other
Commonwealth v. Galo-Ponce, 262 MAL 2025 (per curiam order) (remanding to trial court for reconsideration under holding that Pennsylvania’s LWOP sentencing statute for second-degree murder is unconstitutional)
September Session Links
September 15, 2026 Session: Youtube | PCN
September 16, 2026 Session: Youtube | PCN
Allocatur Grants
Somerlot v. Jung, 449 EAL 2025 (granting review to consider the procedural and substantive validity of a forum-selection clause in a surgical consent form)
Verizon Pa. LLC v. Prevailing Wage Appeals Bd., 177 MAL 2026 (granting review to consider whether the Secretary of Labor and Industry must consult with the Prevailing Wage Advisory Board before issuing prevailing-wage determinations)
Brown v. Phila. Bd. of Ethics, 138 EAL 2026 (granting review to consider several issues of high public official immunity and due process in the context of Pennsylvania’s constitutionally protected interest in reputation)
Teamsters Local 776 v. Pa. Lab. Rels. Bd., 80 MAL 2026 (granting review to consider judicial employees’ rights under the Public Employe Relations Act and/or whether such rights would violate the constitutional separation of powers)
OWPH Devco, LLC v. Monroeville Mun. Council and Zoning Hearing Bd., 8 WAL 2026 (granting review to consider whether the timely announcement of a variance denial, as opposed to the issuance of a written decision, avoids deemed approval under Section 908 of the Municipalities Planning Code)
Commonwealth v. Coffey, 103 EAL 2026 (granting review to consider whether the Court’s holding that Pennsylvania’s LWOP sentencing statute for felony second-degree murder is unconstitutional applies retroactively)
Duxbury v. Reconstructive Orthopedic Assocs. II, 139 EAL 2026 (granting review to consider the Superior Court’s misapplication of standard of review and substantive law of interstate forum non conveniens in a medical malpractice case)
