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May 2023 Docket Review

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

This month, the Court issued 7 precedential opinions and 2 grants of allocatur.  Although it didn't provide many opinions, it offered two with material of great interest to appellate advocates. 

First, in Armolt, the court had something of a scrum over whether and how a party can waive a claim challenging the legality of sentence -- in this case, a claim of a violation of constitutional ex post facto principles, by failing to adequately develop it.  Justice Dougherty, writing for a plurality, analogized to other issues that courts may raise sua sponte, and leaned heavily on the court's discretion in choosing to consider, or not consider, them.  Chief Justice Todd offered a more measured approach that declined to adopt broad principles, but concluded that the defendant's claims herein were waived.  And Justice Wecht, in dissent, took the plurality to task for the logical incongruity in its reasoning that a claim that can be raised at any time, or entertained without any development whatsoever, can be waived for a lack of clear advocacy.  A couple of points here. 

As an initial matter, one would imagine that the Court would have addressed this issue before, but, prior to the last decade or so, its decisions limited the kinds of claims that implicated the legality of sentencing to, more or less, patent conflicts with clear statutory requirements.  In those days, it would be difficult to fail to develop a claim challenging the legality of the sentence, because it would be largely self-evident even without any advocacy.  Yet, beginning in Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011), the court began expanding the variety of claims implicating the legality of sentence, first to challenges to the application of mandatory minimum statutes, and later to constitutional challenges to the application of those statutes, and then constitutional challenges more broadly, until, now, some claims implicating the legality of sentence are quite complex and, thus, quite capable of underdevelopment.  At the time of Foster, then-Justice, later-Chief Justice Saylor advocated for reconceptualizing claims implicating the legality of sentencing as claims that a sentence was illegal per se and advocated that considering whether other kinds of claims were illegal per se should be an evaluative endeavor designed to balance the need for finality, the need to administer justice, and fairness to defendants.  Had the Court agreed, it is likely it would have avoided expanding the category as it has and, thus, the current disjunct between the notion that a party is free to raise such claims for the first time at any time and the notion that a party can waive the claim by lack of development.  Its decisions to do so, whether consciously or not, have highly prioritized that latter factor of fairness to defendants, but Armolt appears to be evidence that the Court reached a high water mark.

Additionally, what to make of Chief Justice Todd's more restrained concurrence and the case's precedential effect?  The concurrence favors the plurality's holding, but only slightly, and appears to leave some of the more abstract disagreements between the plurality and Justice Wecht's concurrence for another day.  Indeed, in the past, the Chief's separate writings have propounded and exemplified the benefits of judicial minimalism, particularly in heated disputes over generally applicable appellate rules of decision, where binding precedent can often do more harm than good for the Court's institutional power and its precedent.  I would not cite Armolt as precedential, at least not without back authority, or good reasoning, but it would seem like the court is experiencing something of a judicially conservative (or less liberal) recession.

Second, in S. Bethlehem Assoc., the court identified a difference between judicial standing to maintain an appellate challenge of an administrative decision and administrative standing to participate in an administrative proceeding, effectively holding that a competitor of a business applying for a zoning variance lacked the former, but not the latter.  Its decision reflects something of another recession from the Court's recent expansions of standing in the Firearm Owners Against Crime and other similar cases, and its reasoning that statutory standing is broader, for example, to avoid standing disputes before administrative proceedings, is less than compelling, but arguably fair.  Again, it would appear that the Court is retreating from what some have claimed its ideological trajectory to be.

Precedential Opinions

Alpini v. Workers' Compensation Appeal Bd., 2 MAP 2022 (Opinion by Brobson, J.) (holding that a provision of the Motor Vehicle Responsibility Law precluding subrogation of certain claims "arising out of the maintenance or use of a motor vehicle" applied to a claimant's claims under the Dram Shop Act)

S. Bethlehem Assoc. v. Zoning Hearing Bd., 41 MAP 2022 (Opinion by Mundy, J.) (distinguishing between standing to initiate judicial proceedings and broader standing to participate in an administrative proceeding under the Municipalities Planning Code and finding a market competitor lacked judicial standing, regardless of whether he had administrative standing, to challenge a co-competitor's requests for a zoning variance)

Commonwealth v. Armolt, 86 MAP 2021 (Opinion by Dougherty, J.) (holding that criminal court divisions have jurisdiction to try and sentence adults for crimes committed as juveniles)

Commonwealth v. Koger, 15 WAP 2022 (Opinion by Dougherty, J.) (holding an earlier decision interpreting a statute governing probation to require a specific finding of a violation of a condition set forth in a sentencing order does not apply to the discrete statutory framework for parole and that courts may delegate identification of conditions of parole) 

Commonwealth v. Rosario, 3, 4, 5 WAP 2022 (Opinion by Dougherty, J.) (holding that trial courts are prohibited from anticipatorily revoking a sentence of probation that has not yet begun)

Brown v. Oil City, 6 WAP 2022 (Opinion by Todd, C.J.) (holding that a contractor may be liable to a third party for creating a dangerous condition on his principal's land even after he returns possession of the land to another who is aware of the condition)

Javitz v. Luzerne Co., 85 MAP 2021 (Opinion by Donohue, J.) (reviewing the Commonwealth Court's application of the law governing claims under the Whistleblower Law)

Allocatur Grants

Bold v. Dept. of Transp., 606 MAL 2022 (granting review to consider whether an impaired operator's movement is required to establish certain DUI-related offenses)

Co. of Northumberland v. Twp. of Coal, 17 MAL 2023 (granting review to consider several issues related to tax refund procedures)

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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