This month, the Court issued 7 precedential opinions and 3 grants of allocatur. On the opinion side, the headline-grabber is the quite shocking (and quite extensive, but page-turning) County of Fulton opinion, which outlines the County's, and its counsel's, course of defiance and vexatious litigation in connection with an earlier Supreme Court order directing it to cease providing third-parties access to its voting equipment pending litigation of its authority to do so. Inasmuch as their conduct in this regard was expansive, I will not attempt to summarize it here, but suffice to say the County and counsel appear to have taken a "no-holds barred" approach to litigating the matter, which is to say an illegal one, and, one might speculate given the nature of the litigation and the extant political zeitgeist, potentially for political ends. In the opinion, Justice Wecht capably and thoroughly delineates the County's, and its counsel's, overwhelming history of litigation malfeasance, and imposes sanctions for the same. The opinion also notes that the Court will refer counsel to disciplinary authorities, and concludes with a firm reiteration that defiance of judicial orders is an affront to the rule of law and harmful to adverse parties and the public interest. Although Justice Wecht's opinion for the majority takes a more scholarly and regular tone, Justice Dougherty, in concurrence, issued a "no-holds-barred" directive of his own, admonishing would-be contemnors who believe they can avoid sanctions, "let this case serve to prove just how wrong you are."
As an academic matter, in this author's view, the opinion is exceptionally thorough and well-reasoned, and is likely to find its way into civil procedure and professional responsibility textbooks for decades to come (much to the chagrin of counsel). But as a practical matter, one hopes that it will serve as a message to attorneys and clients who are increasingly merging the fields of law and politics: the rules of court apply, even if the normal rules of politics have degraded. Certainly, decisionmakers in Fulton County may consider alternative litigation tactics in the future as, faced with potentially millions in sanctions, they (or their replacements) decide whether to raise taxes or shut down entire departments of services.
Also interesting is Marcellus Shale Coalition, which provides a window into several Justices' thinking in the area of administrative-agency deference. Many litigants take for granted that the Court in interpreting agency-related statutes will essentially follow federal deference principles, but, as the Justices explain, it does not, and several Justices are inclined to pull back the degree to which it defers to agencies at all. Interestingly, the call to do so mirrors a similar call by several United States Supreme Court Justices who are decidedly more politically conservative. In either event, pulling away from the doctrine is likely to take authority out of the hands of agency officials and into the hands of judges. Regardless of one's political stripe, although deference can serve salutary purposes where the interpretations involved are largely apolitical and technical in nature, it appears less salutary where agency officials are interpreting procedures (concerning which lawyers and judges have at least an equal pretension to advanced knowledge) or making complex policy judgments (which would appear to require a more proximate democratic mandate, whether it be via the General Assembly's legislative intent or at least elected jurists). Given the vagaries of existing law on the subject, and the multifarious views of the Justices, it will be interesting to see if the Court has occasion to directly confront these concepts in a future case.
On the allocatur side, I'm most interested in Gustafson, in which the Court would appear to be open to considering opening the door for lawsuits by victims of gun violence against manufacturers and retailers, including on a "states rights" theory that certain federal legislation precluding those suits violates' states' rights to regulate state tort law. Doing so, particularly on that basis, would represent a sea change in the law of firearms, among other dangerous products such as tobacco, throughout the country, and would likely lead to something of a flashpoint review by the United States Supreme Court. Stay tuned, and expect significant interest.
Shrom v. PA Underground Storage Tank, 21 MAP 2022 (Opinion by Brobson, J.) (holding property owners were eligible for indemnification for losses caused by underground storage tanks under regulatory legislation notwithstanding failure to comply with agency-imposed registration and fee requirements)
- See also Concurring Opinion by Mundy, J.
Commonwealth v. Rollins, 70 MAP 2022 (Opinion by Mundy, J.) (rejecting a challenge to a DUI-sentencing provision as void for vagueness based on the Crimes Code's default sentencing provisions)
- See also Concurring Opinion by Brobson, J.
Franks v. State Farm Mutual, 42 MAP 2022 (Opinion by Mundy, J.) (holding that the removal of a vehicle from an auto insurance policy as such is not a "purchase" requiring a renewed waiver of stacking)
County of Fulton v. Secretary of Comm., 3 MAP 2022 (Opinion by Wecht, J.) (imposing sanctions on Fulton County and its counsel for abuse of process in an elections matter)
- See also Concurring Opinion by Dougherty, J.
- See also Concurring and Dissenting Opinion by Brobson, J.
Vellon v. Dept. of Transportation, 39 MAP 2022 (Opinion by Donohue, J.) (holding that two DUI-offenses committed before conviction and sentencing do not constitute multiple prior offenses for purposes of a license-suspension statute)
- See also Concurring Opinion by Mundy, J.
Marcellus Shale Coalition v. DEP, 69 MAP 2021 (Opinion by Donohue, J.) (rejecting challenge to certain oil-and-gas permitting regulations)
- See also Concurring and Dissenting Opinion by Dougherty, J.
- See also Concurring and Dissenting Opinion by Wecht, J.
- See also Dissenting Opinion by Mundy, J.
Franczyk v. The Home Depot, 11 WAP 2022 (Opinion by Wecht, J.) (holding the Workers' Compensation Act preempts actions against employers predicated on their negligent failure to obtain indemnification information from third parties who engaged in tortious conduct)
- See also Concurring Opinion by Todd, J.
Commonwealth v. Berry, 291 - 292 EAL 2022 (granting review to consider whether the Superior Court erroneously viewed a challenge to a sentencing court's consideration of mere arrest as an aggravating favor as a challenge to the discretionary aspects of sentencing and erroneously affirmed said consideration)
Gustafson v. Springfield, 240 WAL 2022 (granting review to consider a products-liability claim against gun manufacturers and sellers in light of federal legislation and to consider constitutional challenges to that legislation)
Commonwealth v. Chambers, 286 EAL 2022 (granting review to consider constitutional and legal challenges to a judgment of sentence inconsistent with the factfinder's indications on the record)