This month, the court issued 4 precedential opinions and 3 grants of allocatur, but all 7 are big deals.  On the opinion side, let's start with M.E.L., which, depending on your view, either recognizes or creates a statutory requirement that parents seeking to have their partners adopt their children either marry them or demonstrate that they are unable to do so.  The majority opinion, authored by Chief Justice Todd, convincingly explains its view that the General Assembly in the Adoption Act has expressed a preference for "intact family units," and that the Court's precedent has only been willing to deviate from that preferences in compelling circumstances, such as in an earlier case permitting parents to have same-sex partners, who they were not then permitted to marry, to adopt their children.  The majority recognizes that its decision appears to reinforce something of an anachronistic view of the family, but views the Legislature as endorsing it.  Justice Wecht, in his concurring and dissenting opinion, takes a different view that whatever the General Assembly's preference, they have provided a safety valve by allowing courts to permit adoptions for good cause shown.  On balance, the majority's view appears more consistent with what the General Assembly would have intended when it enacted the Act decades ago, but Justice Wecht makes a compelling textual argument. 

Notably, the court stopped short of saying that a parent must marry a partner to allow for an adoption, remanding for further litigation about the parent's ability to do so, which is consistent with Chief Justice Todd's long history of extoling the virtues of judicial minimalism and decisional restraint.  Thus, on remand, the parent at issue (or other parents in the future) will have the opportunity to make arguments about whether and why she is "unable" to marry her partner.  The word bears a wide variety of connotations.  At one extreme, it might merely refer to a preference: I'm sorry, but I'm unable to join the meeting.  This view is perhaps a bit permissive, but could be attractive particularly in light of longstanding federal and state constitutional jurisprudence recognizing that individuals have the right to order their families in the way they see fit.  On the other extreme, it might refer to what it referred to in the same-sex partner case: legal impossibility.  It will be interesting to see how future cases arrive at a conclusion.

Additionally, the court's decisions in McLaughlin, Mimi Investors, and The Bert Company continue one of the Court's more longstanding trends in recent history: again, depending on your view, either recognizing or creating pathways to civil liability, contribution against co-employers, arguable strict liability for false statements in connection with securities, and a narrow view of federal constitutional limits on punitive damages, respectively.  Although the Court's holdings with respect to the first two are final, its holding in The Bert Company may be ripe for an appeal to the United States Supreme Court.  Indeed, that Court's jurisprudence on the issue is of relatively recent vintage, confusing, somewhat contradictory, and, as applied by lower courts, something of a scrum.  Given that the High Court has not addressed the issue in some time, has seen significant changes in personnel, and has seen significant upheavals in its overall jurisprudence of substantive due process, it might well be inclined to take up review.

On the allocatur side, I'm most interested in Ungarean and MacMiles, in which the Court granted review to address questions of insurance coverage for losses derived from the ongoing coronavirus pandemic and governmental responses thereto.  Perhaps the most interesting is whether policies covering "physical loss or damage" will cover losses arising from office closures, particularly in light of the longstanding rule that ambiguities in insurance policies must be construed in favor of the insured.  Although most courts have decided the answer is no, a few in Pennsylvania have come to the opposite conclusion. In the past, the Court has had some circumspection about collapsing the distinction between the concepts of physical and non-physical (despite the fact that, in the scientific sense, everything is physical), and has recognized the distinction as something of a normative, policy choice rather than a literal description, so it will be interesting how it addresses arguments that losses derived from the "physical" intrusion of the virus.

Precedential Opinions

McLaughlin v. Nahata, 7 WAP 2022 (Majority Opinion by Brobson, J.) (holding that a party vicariously liable in tort may seek contribution from another)

• See also Concurring Opinion by Wecht, J. 

Mimi Investors, LLC v. Tufano, 57 MAP 2022 (Majority Opinion by Donohue, J.) (holding that there is no scienter element in state law providing a cause of action for failure false statements in connection with securities)

• See also Concurring Opinion by Mundy, J.

In Re Adopt. of: M.E.L., a Minor, 109 MAP 2022 (Majority Opinion by Todd, C.J.) (holding that a parent must either marry, or establish inability to marry, a proposed adopting co-parent)

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

The Bert Company v. Turk, 13 & 14 WAP 2022 (Majority Opinion by Donohue, J.) (holding that trial courts in assessing constitutional challenges to punitive damages as violative of substantive due process may compare compensatory damages to punitive damages on a per-defendant basis and may consider the potential harm of defendants' actions)

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

Allocatur Grants

Commonwealth v. Saunders, 7 EAL 2023 (granting review to consider whether the Pennsylvania constitutional protection against searches and seizures requires a fact-specific assessment of each automobile search's necessary exigent circumstances)

Ungarean v. CNA, 313 & 314 WAL 2022 (granting review to consider insurance coverage dispute for losses arising from the coronavirus pandemic)

MacMiles, LLC v. Erie Insurance Exchange, 307 WAL 2022 (granting review to consider insurance coverage dispute for losses arising from the coronavirus pandemic)