This month on SCOPAblog, the court issued 5 precedential opinions and 16 grants of allocatur.  On the opinion side, although the docket may look a bit dry this summer (much like this summer), the Court's decision in Shirley contains something of a hidden aquifer for appellate enthusiasts.  In the opinion, the Court addresses several questions regarding nonprofit standing, the right to intervene, and the appealability and standard of review of orders denying intervention.  In short, the opinion appears to envisage a fairly broad right of intervention for nonprofits, whose agendas often depart from individual litigants and, particularly, sometimes-captured administrative agencies.  This right, as Justice Mundy in a secondary opinion explained, is in some kind of tension with its recent decisions policing intervention by legislators with more scrutiny.  It is unclear at this juncture whether this difference is simple jurisprudential happenstance, or reflect judgments about the relative benefits and burdens created by different classes of intervenors, but, in all events, the opinion provides a good primer for would-be intervenors.

On the allocatur side, I'm most interested in Shivers, which involves whether a defendant's flight from police in a "'high crime' area" can amount to reasonable suspicion that he is engaged in criminal activity for purposes of the Pennsylvania constitutional right to be free from unreasonable searches and seizures.  It is beyond cavil that flight alone does not, but U.S. Supreme Court decisions have held that flight in a "'high crime' area" does, at least for purposes of the Fourth Amendment's protection against unreasonable searches and seizures.  That holding, however, has been roundly criticized.  As an initial matter, and from a libertarian perspective, the idea that a defendant's identical conduct in one area is suspicious when the same conduct elsewhere is not is less than intellectually robust, and is at least adjacent to principles underlying general warrants, the bane to which the protections against unreasonable searches and seizure were adopted to stop. Surely John Adams would find a general warrant for treason against King George just as offensive in patriot-controlled Boston as he would in tory-stronghold Long Island.

Additionally, from a more egalitarian and progressive perspective, efforts to establish that a particular area is a "'high crime' area are largely unworkable.  Our communities have very little systematic collection of crime reporting data, and, even if they did, given that most crimes are obscured effectively, it would primarily show us where police are going, rather than where crimes are occurring.  And a high-murder area may not be a high-sexual-assault area, or a high-drug-activity area, or a high white-collar-crime area.  And how much crime is "high," and compared to what?  Framing, not anything objective, sets up the answer, and can essentially substantiate that anywhere in the United States is a high-crime area in some form or another.  In practice, the inquiry ends up at best centering on what areas the testifying officer views as dangerous based on his anecdotal experience and at worst centering on ideas about which ethnic and socioeconomic groups commit crime.  One prominent criminal defense attorney has been quoted as saying that legally speaking, a "'high crime' area" is anywhere within 10 feet of a person of color or a poor person.  It would appear the Court is up to considering these criticisms and many more that have been leveled against the notion that a person running in the suburbs is a jogger and a person running in the city is a suspect.

I am also interested in seeing the Court resolve In re: Canvass of Provis. Ballots, which may be decided in time to provide guidance for the counting of ballots in the upcoming Presidential election (we need all the guidance we can get); and NHL, which involves the constitutionality of a Pittsburgh tax on nonresidents' use of publicly-funded stadiums as contrary to the Uniformity Clause.  The latter is particularly important insofar as the City of Pittsburgh faces something of a financial cliff, largely due to the commercial-property bust, and is already facing budgetary shortfalls for 2025 and 2026.

Precedential Opinions

Commonwealth v. Stevenson, 23 EAP 2023 (Majority Opinion by Brobson, J.) (holding that a defendant who unsuccessfully seeks exclusion of evidence prior to trial and then preemptively introduces it at trial may nevertheless challenge its admissibility on appeal)

Shirley v. PA Legislative Reference Bureau, 85 & 87 MAP 2022 (Majority Opinion by Dougherty, J.) (holding that order denying environmental nonprofits intervention in challenge to environmental rulemaking was an appealable collateral order, that the nonprofits' claim for intervention was not moot given continuing litigation over the rulemaking, and that the order was predicated on an error because the nonprofits raised an "obvious, possibly meritorious, and potentially beneficial" argument under the Environmental Rights Amendment)

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

Stadium Casino RE LLC, Pet v. Pa Gaming Control Bd, 20 MM 2023 (Majority Opinion by Donohue. J.) (affirming grant of gaming license and rejecting claim that certain auction procedural requirements are jurisdictional in nature)

AUUE, Inc. v. Boro of Jefferson Hills ZHB, 28 WAP 2022 (Majority Opinion by Brobson, J.) (holding a zoning officer had the right to issue use permits, and that in cases involving only that question, a zoning hearing board must limit its review of such permits to the substantive question of whether the use is permitted in the particular district)

MFW Wine Co. LLC, et al. v. PA LCB, 75 & 76 MAP 2022 (Majority Opinion by Donohue, J.) (holding that the Pennsylvania Liquor Control Board is a person within the meaning of a statute permitting actions against persons for mandamus damages and that sovereign immunity does not protect it from awards for such damages)

Note: The Court also dismissed as improvidently granted the appeal in Cnty. of Northumberland v. Twp. of Coal, 35 MAP 2023, which involved several questions related to tax refund procedures, and ended in a stalemate affirming by operation of law in Sicilia v. API Roofers Advantage Program, 14 MAP 2023, which involved the Commonwealth Court's observance of the standard of review in a workers' compensation case, and Elite Care, Rx v. Premier Comp Solutions, LLC, 25 WAP 2023, which involved the exclusive-remedy provision of the Workers' Compensation Act.

Allocatur Grants

Bell, B., et al. v. Wilkinsburg SD, 75 WAL 2024 (granting review to consider whether the Commonwealth misinterpreted statutory provisions seemingly permitting unequal treatment of public and charter school students in terms of transportation)

Osbourne v. Greenberg, 332 EAL 2023 (granting review to consider whether executors and administrators of estates have standing to challenge findings of death certificates interfering with their respective estates' recovery of damages or compensation)

In Re: Condemn by City of Phila. Airport Bus. Ctr., 22 MAL 2024 (granting review to consider whether the Commonwealth Court elevated form over substance in quashing an appeal based on the trial court's characterization of an order, rather than its substance)

Weatherholtz v. McKelvey, 627 MAL 2023 (granting review to consider whether the Superior Court erred in holding that the new statute of limitations for actions involving sexual assault and intimidation runs from the date of the assault rather than the date of demonstrated continued harm)

In re: Canvass of Provis. Ballots, 328 MAL 2024 (granting review to consider whether an unsigned provisional ballot should be counted because of election-official instructions, and whether a provisional ballot of a voter domiciled and registered elsewhere should be rejected)

Commonwealth v. Smith, 17 & 18 EAL 2024 (granting review to consider whether the Superior Court erroneously held that there was insufficient evidence to establish that off-duty police committed assault crimes)

Gidor v. Mangus, 42 WAL 2024 (granting review to consider whether a statute in the Home Inspection Law is a statute of limitation or repose)

Brown v. Gaydos, No. 12 WAL 2024 (granting review to consider application of co-employee immunity in the context of sole proprietorship employing both plaintiff and defendant)

Commonwealth v. Anderson, 659 MAL 2023 (granting review to consider whether a defendant's burden to establish a reasonable expectation of privacy requires him to show he was permitted to use another's vehicle where the Commonwealth's evidence does not demonstrate to the contrary)

Bredbenner v. Hall, 605 MAL 2023 (granting review to consider whether a contemnor's failure to offer proof of indigency amounts to waiver of the issue of ability to pay)

NHL et al. v. City of Pgh., 53 WAL 2024 (granting review to consider whether the Commonwealth Court erred in ruling Pittsburgh's tax on nonresidents using publicly funded sports facilities violated the Uniformity Clause of the Pennsylvania Constitution)

Erie Insurance Ex. v. United Services Auto, 27 WAL 2024 (granting review to consider whether the Superior Court erred in admitting claim for promissory estoppel which was purportedly a "masked" claim for negligent spoliation of evidence)

Commonwealth v. Shivers, 328 EAL 2023 (granting review to consider whether a rule that flight in a "high-crime area" constitutes reasonable suspicion violates the state constitutional right to be free from unreasonable searches and seizures)

Grant v. Grant, 105 WAL 2024 (granting review to consider issues regarding a quitclaim deed purportedly severing a joint tenancy)

Commonwealth v. Outlaw, 2 EAL 2024 (granting review to consider whether a single act of profane name calling can amount to direct criminal contempt)

In re: Upset Sale TCB Tioga Co. (Ostapowicz), 62 MAL 2024 (granting review to consider whether a county tax sale was valid where the successful bid at auction was a mere 18 percent of appraised fair market value)