This month, the Court issued 5 precedential opinions and 6 (or, depending on how you count them, 9) grants of allocatur.  On the opinion side, I once again run the risk of being accused of running a Justice David Wecht fanblog.  The most noteworthy case is Klar, which rejects several attempts to expand both statutory and common-law alcohol-furnishment liability to at least some social hosts.  Justice Wecht, for a unanimous Court, authors a scholarly opinion reiterating extant decisions interpreting the Dram Shop Act and developing the common law erecting a strict boundary between commercial alcohol providers on one hand and social ones on the other.  The decision is noteworthy not only because it is well-written, but also because it unanimously rejects an attempt to expand civil liability, a rarity over the last several years.

For my fellow appellate nerds, however, the most useful case going forward will be Pa. State Police, in which the Court finds that the Commonwealth Court abused its discretion in failing to affirm an Office-of-Open-Records order requiring the state police to disclose its police governing monitoring of social media accounts and instead issuing a remand to give the police another chance to establish that was exempt from disclosure.  In this case, the Commonwealth Court's motives were understandable: the state police argued that the policy was exempt pursuant to a subsection providing that records the disclosure of which would cause risks to public safety are exempt, and so the Commonwealth Court's affirmance would let the proverbial genie out of the bottle.  But, as Justice Wecht's 4-2 opinion explained, the Commonwealth Court's action was inconsistent with appellate review and the applicable burdens of proof.  Additionally, the opinion goes to some degree of trouble to identify situations in which the Commonwealth Court had previously issued remands in more appropriate circumstances -- i.e., where the record was not ripe for appellate review -- and distinguished them all.  Pa. State Police in this regard may be an effective tool for every appellate attorney faced with an unexpected and potentially inappropriate remand.

On the allocatur side, I'm most interested in Thompson.  Under federal constitutional law, police are permitted to dispense with the need for a warrant to search automobiles provided they have probable cause.  The notion is that automobiles are very mobile, and so, somehow, there is always a risk that if an officer has to go and obtain a warrant, he will lose the automobile and the opportunity to search, and that this circumstance turns every automobile search into an emergency.  Pennsylvania law, perhaps a little more cogent, does not follow this rule.  Thus, in Pennsylvania, police must get a warrant or establish both probable cause and an emergency.  This rule, combined with the fact that officers who impound vehicles are generally permitted to conduct "inventory searches" of those vehicles as a matter of course for safety and to secure the motorists' belongings, has undoubtedly led to the impoundment of a fair amount of vehicles.  Thompson will likely address this intersection and reevaluate the strictures around inventory searches going forward.  It will be interesting to see the Court try to untie the knot.

Precedential Opinions

PA State Police v. ACLU, 44 MAP 2022 (Majority Opinion by Wecht, J.) (holding the Commonwealth Court erred in sua sponte remanding a case to the Office of Open Records to give the Pennsylvania State Police a second opportunity to establish that the subject records were exempt from disclosure)

• See also Dissenting Opinion by Mundy, J. 

Klar v. Dairy Farmers of America, 29 WAP 2022 (Majority Opinion by Wecht, J.) (rejecting a litigant's attempt to expand Dram-Shop and negligent-furnishment liability to social hosts)

Bindas v. PennDOT, 27 WAP 2022 (Majority Opinion by Wecht, J.) (holding notice requirements precedent taking property for highway construction were required to effect condemnation)

• See also Dissenting Opinion by Donohue, J.

In Re: Koepfinger, 20 WAP 2022 (Majority Opinion by Donohue, J.) (holding that where a power of attorney is void, actions taken by the attorney in fact are likewise void)

Commonwealth v. Towles, 796 CAP (Majority Opinion by Brobson, J.) (reviewing application fo the time-bar provisions of the PCRA in a capital serial PCRA case)

• See also Concurring Opinion by Donohue, J.
• See also Concurring Opinion by Wecht, J.

Allocatur Grants

Commonwealth. v. Greer, 47 MAL 2023 (granting review to consider whether, in appeals in which petitioners are claiming both PCRA court error and ineffective assistance of PCRA counsel for the first time on appeal, an appellate court should consider the claims of error before remanding for further proceedings on potential claims of ineffectiveness)  

In Re: Estate of Caruso, 43 WAL 2023 (granting review to consider whether and under what circumstances a non-party to a partnership agreement may assume the rights and obligations of a partner)

Commonwealth v. Stevenson, 12 EAL 2023 (granting review to consider whether a defendant's preemptive introduction of a prior conviction waives any challenge to the trial court's pretrial determination that it was admissible)

Commonwealth v. Thompson, 113 MAL 2023 (granting review to consider the constitutionality of warrantless inventory searches of automobiles)

Commonwealth v. Drayton, 88 MAL 2023 (granting review to consider whether claims of ineffective assistance of counsel in failing to object to the provision of written jury instructions to the jury constitutes must be reviewed for actual prejudice)

Cole v. DEP, 312 & 313 EAL 2021 and West Rockhill Twp v. DEP, 415 & 416 MAL 2021 (granting review to consider whether the Third Circuit, a state regulatory agency, or both, have jurisdiction over challenges to DEP action relative to interstate energy projects)

BONUS Recommended Reading

This November, Pennsylvania voters will weigh in on statewide judicial vacancies of equal importance: one for the Commonwealth Court and one on the Supreme Court. The latest report from Protect Democracy highlights the court's critical role in deciding election-related cases in 2020 through present, and reflects on how the outcome of this years' race could shape future decisions related to election administration, voting rights and checks & balances. Read more at https://protectdemocracy.org/work/all-eyes-on-pennsylvania-scopa-elections/ 👀