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May 2021 Docket Review

Posted by Corrie Woods | May 31, 2021 | 0 Comments

This month, the Court issued 2 opinions and 5 allocatur grants.  I, too, like an early summer vacation.

On the opinion side, not a lot of breaking ground.  In fact, the most noteworthy decision issued by the Court this month is not a precedential opinion, but, rather, the Court's inability to reach a majority position in Commonwealth v. Fears, 781 CAP, which is the latest of many decisions implicating the now years-old Porngate e-mail scandal that led to the downfall of then-Justices Seamus McCaffery and Michael Eakin.  In Fears, a criminal defendant sought to use the emails shared by the Justices, which evidenced a host of repugnant prejudices against people of color, immigrants, LGBTQQIAA+, and other still-too-often maligned groups, not to mention criminal defendants, as the basis of for a claim of judicial bias in a petition for post-conviction relief.  After the trial court found that it had jurisdiction because Fears' claim was predicated on newly-discovered facts that he could not reasonably have discovered with due diligence (i.e. the Justices' private communications), it addressed the claim, but found it to be meritless.  Fears appealed as of right to the Supreme Court, where all three Justices who previously presided over Fears' earlier appeals -- Chief Justice Baer, former-Chief Justice, now-Justice Saylor, and Justice Todd -- recused, leaving only Justices Donohue, Dougherty, Wecht, and Mundy to consider the appeal.  Unfortunately, they deadlocked on the issue of jurisdiction, affirming the trial court's order without a binding rationale.

So what does this mean for criminal defendants who believe the former Justices' outward displays of prejudice might lead to a reasonable suggestion of impropriety in their particular cases?  In the short term (and, given the time restraints on filing petitions for collateral relief, probably for the vast majority of defendants for whom a claim of judicial bias arising from Porngate is a live one), first, it means that whether their claims are even justiciable will be left up to the trial judges in their respective counties.  On the one hand, if you are a criminal defendant who hasn't yet raised the claim, you are probably out of luck, as one imagines the time to discover Porngate with due diligence is running out.  On the other hand, if you have raised the claim, you will need to go 2-0 with your trial-court judge -- i.e., win on jurisdiction and on the merits -- and hope for the same win by per curiam affirmance.  Alternatively, you might be able to convince one of Justices Mundy or Dougherty that your case is different enough from Fears' to warrant their jumping ship on jurisdiction, and convince three Justices on the merits.  Or, if you are really lucky, you might try to keep your petition in the trial court until 2022, former-Chief Justice Saylor's retirement, and the installation of a new Justice who can break the tie on jurisdiction and then convince three Justices on the merits.  May the odds be ever in your favor.  Although this author is certainly not questioning the more senior Justices' decisions to recuse, the fact that their recusal (and the other Justices' inability to reach a binding result) has led to an attempt to interrogate racist and other offensive attitudes on the bench being dismissed on a procedural basis without a fair defeat is unfortunate to say the least.

On the allocatur side, also the sound of crickets (or are those cicadas?)  Still, one potentially interesting argument will be the one in Povacz and a bevy of related cases implicating issues relating to smart meters for public utilities and, in at least one of the issues presented therein, their safety or lack thereof in light of their transmission of radiofrequency (RF) radiation, an issue that is either a product of paranoiacs or an existential threat to humanity, depending on whom you believe.

Precedential Opinions

In re: B.W., 14 WAP 2020 (Opinion by Mundy, J.) (holding that where an involuntary mental health commitment is predicated on threats of harm and acts in furtherance thereof, it must be supported by evidence of both, but that planning activity qualifies as the latter)

See also Concurring and Dissenting Opinion by Todd, J.

Commonwealth v. Rogers, 8 EAP 2020 (Opinion by Saylor, J.) (holding that a sexual-offense victim's prior convictions for prostitution with individuals other than the defendant, except in special circumstances, are inadmissible pursuant to the Rape Shield Law) 

See also Concurring Opinion by Mundy, J.

Allocatur Grants

Reibenstein v. Barax, 616 MAL 2020 (granting review to consider the meaning of "cause of death" within the meaning of the MCARE Act and whether the statute of repose in that statute is tolled by fraudulent concealment or misrepresentation of a plaintiff's cause of death)

Public School Employees Retirement Board v. Whalen, 671 MAL 2020 (granting review to consider whether private parties to a settlement agreement may determine what constitutes "compensation" for public school employee retirement purposes and whether the Commonwealth Court failed to give due deference to PSERS' interpretation of that term)

Povacz v. Pennsylvania Pub. Util Commn., 668 MAL 2020 (granting review to consider several issues related to "smart" utility meters under the Pennsylvania Public Utility Code)

Commonwealth v. McCutchen, 451 EAL 2020 (granting review to consider whether the trial court in a post-conviction case had statutory jurisdiction to grant relief)

Arlet v. Workers' Compensation Bd. of Appeal, 262 WAL 2020 (granting review to consider an issue of subrogation involving a Jones Act insurance policy)

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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