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January 2023 Docket Review

Posted by Corrie Woods | Jan 31, 2023 | 0 Comments

This month, the Court issued 4 precedential opinions and 4 grants of allocatur.

On the opinion side, I'm most interested in Avery, which interprets the "sore loser" provisions of the Election Code to limit the circumstances in which candidates for office can withdraw from a party primary and run as third-party candidates in the general election.  Avery essentially holds that candidates who discover defects in their petitions and voluntarily administratively withdraw them may run as third-party candidates, but candidates who don't concede and litigate, but then withdraw, cannot.  Although the court's legal analysis of precedent is well-taken, some collateral points are worth note.  Preliminarily, as Justice Wecht argues in concurrence, there is room to argue that the existing exception for candidates who withdraw administratively is not statutorily supported. 

But perhaps more importantly, declining to extend the exception to litigation-based withdrawal leads to some practically dubious results.  Suppose you are a candidate, and you believe you can win either as a major-party candidate or, with much more work and expense, as a third-party or independent candidate.  You file petitions, and there is ambiguity as to whether you should be placed on the ballot.  If Avery had come out differently, there would be no cost to litigating first and, if you lose, bailing out and mounting a third party or independent candidacy.  Under Avery, you must make a bet on your likelihood of success in court, and either bail out beforehand, or stick it out and, if you lose, sit November out.  This is not so easy to do, as compliance with the Code is often in the eye of the fact finder.  The net effect of Avery, then, is to incentivize pre-litigation evaluation of petition signatures and disincentivize good-faith disputes vis-a-vis petitions.  Although it's fair enough to call someone who runs in a primary and loses a "sore loser," it's hard to apply the term to someone who never makes it to the primary in the first place.  Given the court's analysis is pretty strong, the legislature would be well advised to reconsider who the concept really should bar.

On the allocatur side, I'm most interested in Dwyer, which concerns the scope of a trial court's discretion to deny treble damages pursuant to the Unfair Trade Practices and Consumer Protection Law.  Historically, a trial court's discretion to grant or deny treble damages has been quite broad, but the Court's recent decisions in the context of the UTPCPL and elsewhere, most notably Gregg v. Ameriprise in 2020, adopting strict liability for violations of the UTPCPL, have shown a marked trend of expanding the availability of civil damages in virtually every context.  Additionally, counsel in Dwyer, Ken Behrend, Esq., was also counsel in Gregg, and has had something of a lengthy career in exploring and expanding the outer reaches of the UTPCPL.  It will be interesting to see whether the Court's experience and personnel changes from 2020 to present lead to a continuation or recession of the trend.

Precedential Opinions

In Re: Nomination of Avery, 91 & 92 MAP 2022 (Opinion by Donohue, J.) (holding that an exception to the Election Code's "sore loser" provisions for candidates who have voluntarily administratively withdrawn does not extend beyond those circumstances to litigation-based withdrawal)

Marion v. Bryn Mawr Trust Co., 72 MAP 2021 (Opinion by Dougherty, J.) (adopting knowingly aiding and abetting fraud as a tort under Pennsylvania law)

In Re: Private Complaint Filed by Luay Ajaj, 55 MAP 2021 (Opinion by Brobson, J.) (holding that a district attorney's disapproval of a private criminal complaint is subject to reversal only for bad faith, fraud, or unconstitutionality).

In Re: Trust Under Deed of Garrison, 61-63 MAP 2022 (Opinion by Mundy, J.) (holding a prior case precluding trust beneficiaries from replacing a trustee by agreement did not apply to situations in which the settlor and beneficiaries all seek to replace the trustee by agreement)

Allocatur Grants

MBC Development v. Miller, 387 MAL 2022 (granting review to consider the validity of arbitration agreements between limited partners in light of statutory requirements that certain acts are subject only to "court review")

Ferraro v. Patterson-Erie, 170 WAL 2022 (granting review to consider whether a plaintiff's good-faith attempt to serve the defendant within the relevant statute of limitations excused her from doing so)

Dwyer v. Ameriprise Financial, 209 WAL 2022 (granting review to consider a trial court's refusal to grant treble damages under the Unfair Trade Practices and Consumer Protection Law on the ground that the plaintiff had already received punitive damages)

Commonwealth v. Chisebwe, 322, 323, 324, & 325 MAL 2022 (granting review to consider whether a the evidence was sufficient to convict a motorist of failing to exhibit his driver's license and registration where he initially refused to produce them, but subsequently relented, within a statutory period to present them ostensibly intended for motorists who did not refuse, but, rather, did not possess, the documents)

About the Author

Corrie Woods

Corrie is our primary litigator, and focuses his practice on appellate, criminal, and post-conviction cases. Corrie also authors the firm's blog, SCOPABlog, which is the only regularly updated blog providing comprehensive coverage of the Supreme Court of Pennsylvania's docket. Corrie became an a...


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