This month on SCOPAblog, the court issued 4 precedential opinions and 6 grants of allocatur. 

On the opinion side, the most interesting case is Oberholzer, and in a walk.  In that case, the Galapos, having been subjected to anti-Jewish hate speech by their neighbors, the Oberholzers, began to festoon their property line with the Oberholzers with signs decrying racism, anti-Jewish hate, and the like.  The Oberholzers claimed the signs were defamatory and otherwise tortious and sought and obtained an injunction directing the Galaops to turn their signs around, away from the property line.  The issue before the Court in Oberholzer is whether Pennsylvania's state-constitutional guarantee of free speech, more broadly than its federal counterpart, prohibits such an injunction, and the Court, in an opinion authored by Justice Dougherty and joined by Chief Justice Todd, and Justices Donohue and Mundy, concluded that it does.  The court in this regard firmly regirded the principle that, in general, where speech offends, the appropriate response is more speech (or not to listen at all), even where other reasonable individuals, including Justices Wecht and Brobson in dissent, might view the speech as impacting other interests, such as reputation or the quiet enjoyment of one's property.  The Court's opinion is not one-size-fits-all, and contains a number of caveats, but represents something of a watermark for Pennsylvania free speech jurisprudence.  

On the allocatur side, I, joined by most of the civil bar, am most interested in Chilutti.  In that case, the Court will address the appealability of orders compelling arbitration as collateral orders and the enforceability of certain Internet-based arbitration agreements after a Superior Court decision effectively eviscerating them.  Although the Court has been (or, at least, various, case-by-case majorities of the Court have been) generally plaintiff-friendly in the last several years, Chilutti may be a bridge too far.  Whatever one's view of the collateral order doctrine, holding orders compelling arbitration to be collateral would effectively blunt the point of arbitration agreements -- i.e., to avoid litigation -- and vast sectors of the economy, and particularly the online economy, rest on the enforceability of Internet-based arbitration agreements.  It will be interesting to see how the Court views the law, but more interesting to see how its view is tempered by the consequences of particular interpretations. 

Additionally, although this is SCOPABlog, not CCOPABlog, I would be remiss if I did not mention the Commonwealth Court's August 30 opinion in Black Political Empowerment Proj. v. Schmidt, 283 M.D. 2024 (Pa. Cmwlth. 2024), which holds that the Election Code's requirement that voters date the outer envelope of mail-in ballots violates Pennsylvanians' right to vote and to free and equal elections.  The opinion is something of a sequel to a February 2023 decision of the Pennsylvania Supreme Court holding that the provisions are mandatory, but leaving other questions, such as the state constitutional claim addressed here, and certain issues of federal civil rights law, for another day. 

Two points here.  First, it is worth noting that the Commonwealth Court panel was composed of two judges who were elected as Republicans and three who were elected as Democrats, whereas the full court is composed of five judges elected as Republicans and four elected as Democrats.  Preliminarily, this author is often perplexed at how, precisely, the Commonwealth Court divines how many, and which, judges will sit on a particular case.  But more to the point, the opinion was joined by President Judge Renee Cohn Jubelirer, the elected-as-a-Republican leader of the court who in recent years has been widely recognized as more focused on the court's legitimacy and deliberativeness and the quality of its work than the more parochial questions involved in particular cases.  All of this to say that anyone looking to a judge's political orientation or party when elected to predict votes is engaged in folly.  Judicial ideology is different than political ideology.

Second, I would expect that the parties and the Supreme Court are bracing to address this issue post-haste.  We are roughly 60 days from a presidential election in which Pennsylvania may well be the tipping-point state and in which polls suggest the presidential race is neck-and-neck.  We are roughly 15 days from counties beginning to send out (and voters beginning to send in) mail-in ballots.  And, despite one Washington County trial judge's efforts, it is not totally clear whether counties are permitted to tell voters that they have made mistakes on ballots in lieu of discarding them entirely.  One imagines the Court wants to work quickly to definitively resolve the issue, particularly inasmuch as this year's election season seems almost inexorably bound to lead to election-litigation-season.  

Precedential Opinions

Velasquez v. Miranda, 108 MAP 2023 (Majority Opinion by Dougherty, J.) (holding as a matter of federal immigration law that a child who is the subject of custody proceedings that result in sole custody being awarded to the parent presently in the United States may seek Special Immigrant Child determinations in that custody proceeding)

• See also Concurring and Dissenting Opinion by Wecht, J.
• See also Dissenting Opinion by Brobson, J.

Bold v. Dept of Trans Bur of Driv Licen, 36 MAP 2023 (Majority Opinion by Wecht, J.) (holding that where an officer comes upon an intoxicated individual sleeping in a running vehicle, he lacks reason to believe the individual is operating or in actual physical control of the vehicle for purposes of DUI-related license suspensions)

• See also Concurring Opinion by Dougherty, J.
• See also Dissenting Opinion by Mundy, J. 

Wolfe v. Reading Blue Mtn, 73-74 MAP 2023 (Majority Opinion by Dougherty, J.) (holding that a railroad company's condemnation of private property for the benefit of a single private business was an unlawful condemnation)

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

Oberholzer v. Galapo, 104 MAP 2022 (Majority Opinion by Dougherty, J.) (holding an injunction against a landowner's display of anti-racist signs in his yard in response to anti-Jewish epithets by his neighbor violated Pennsylvania's constitutional right to free speech)

• See also Dissenting Opinion by Wecht, J.
• See also Dissenting Opinion by Brobson, J.

Allocatur Grants

Commonwealth v. Jenkins, 185 MAL 2024 (granting review to consider whether a prosecutor's impeachment of a defendant via his pre-arrest silence is subject to harmless error analysis)

Federated Ins. Co. v. Summit Pharmacy, 61 MAL 2024 (granting review to consider the proper valuation of pharmaceutical products for purposes of the Workers' Compensation Act)

Commonwealth v. Fountain, 149 MAL 2024 (granting review to consider the effect of a defendant's forfeiture, rather than waiver, of counsel at his first two trials on his right to counsel at his third)

Chilutti. v. Uber Technologies, 257 EAL 2023 (granting review to consider the appealability of orders compelling arbitration and the legal standard governing online arbitration agreements)

Martinez v. Lewis Tree Svcs, 129 MAL 2024 (granting review to consider the intersection and applicability of the "going and coming rule" and "no fixed place of work" exception thereto for purposes of the Workers' Compensation Act)

Gustafson v. American Federation of State, 102 WAL 2024 (granting review to consider several issues in a public-employee labor dispute)