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October 2021 Docket Review

Posted by Corrie Woods | Nov 01, 2021 | 0 Comments

This month, the Court issued 6 precedential opinions (and 1 non-precedential opinion) and 5 grants of allocatur.

On the opinion side, the Court issued two decisions that are sure to multiply litigation.  First, in Firearm Owners Against Crime, it has again seemingly expanded the availability of standing to raise pre-enforcement challenges to legislation – in this case, municipal gun-control legislation – via actions for declaratory judgments.  As Justice Mundy writes in her majority opinion, the decision is the natural conclusion of a series of decisions that initially allowed litigants to raise pre-enforcement challenges where they face significant burdens in complying with statutes: here, the burden of forfeiting one's constitutional right to bear arms.  The line of decisions attempts to draw a line between the prudential doctrines attendant standing, which are designed to promote judicial minimalism, and the Declaratory Judgment Act, which is designed to provide parties with certainty.  But, in practice, the cases have taken courts, step by step, toward answering potentially purely academic, and often politically charged, questions, like the one in this case.  Whether the court can find a roadblock in a future case is unclear, but expect to see more and more challenges to new legislation.

Second, in Bradley, the Court has effected a sea-change in its PCRA jurisprudence, abandoning earlier decisions that provided an extremely narrow, 20-day pathway for petitioners to challenge the stewardship of PCRA counsel in favor of a more expansive approach permitting them to do so when they obtain new counsel, even if they happen to be on appeal.  The opinion, authored by Justice Todd, is something of a tour de force, detailing those earlier decisions and explaining at great length how their provision of that procedure was dicta, how the procedure practically forecloses review, and how the new procedure avoids offending the time-bar provisions of the PCRA.  It also represents a vindication of some of the majority Justices' long lines of secondary opinions explaining that the 20-day procedure was impractical and unfair.  After Bradley, expect to see every petitioner seeking new counsel on appeal and another round of counseled review.

On the allocatur side, I'm most interested in Jones (although Kornfeind certainly has the most interesting name).  Jones will address the all-too-frequent scenario in which a criminal defendant proceeding with a co-defendant to a joint trial is implicated by the co-defendant's confession, and, because of the co-defendant's right not to testify, is unable to confront and cross-examine him.  Frankly, the case law in this area has been obtuse, largely holding that so long as the confession doesn't name the defendant, or is redacted or modified so as to not name the defendant, it will generally be admissible. Yet, where a criminal defendant is at trial, seated next to his co-defendant, who has made a confession tying numerous facts to a mysterious "other man," it does not take a detective to deduce who that other man might be.  One hopes the Court has taken up review to consider bringing the theory of the law in this area into line with practice.

Precedential Opinions

Apartment Assn. of Metropolitan Pittsburgh, Inc. v. City of Pittsburgh, 26 WAP 2020 (Opinion by Wecht, J.) (holding state law preempts a Pittsburgh ordinance forbidding housing discrimination on the basis of source of income)

Rellick-Smith v. Rellick, 23 WAP 2020 (holding a trial judge erred in permitting amendment of an answer to plead a statute-of-limitations defense despite a prior judge's ruling that it had been waived pursuant to the coordinate jurisdiction rule, but on fractured rationales)

Firearm Owners Against Crime v. City of Harrisburg, 29 MAP 2020 (Opinion by Mundy, J.) (holding citizen members of firearms-rights group had individual and associational standing to bring a pre-enforcement declaratory-judgment action to challenge to Harrisburg's gun-control ordinance)

In the Interest of T.W., 22 EAP 2020 (Opinion by Mundy, J.) (holding an officer conducting a protective pat-down search of a suspect's outer clothing for weapons may remove an object from within the suspect's clothing if he has reasonable suspicion to believe it is a weapon)

Commonwealth v. Bradley, 37 EAP 2020 (Opinion by Todd, J.) (holding that petitioners pursuant to the Post Conviction Relief Act may assert claims of ineffective assistance of postconviction counsel at the earliest available opportunity, including on direct appeal)

In re: Appeal for Formation of an Independent Sch. Dist. Consisting of the Borough of Highspire, 58 & 59 MAP 2020 (Opinion by Donohue, J.) (holding that the Secretary of Education properly considered how a school district's secession from one school district and annexation by another would financially, and, thus, educationally, impact the existing school districts)

Trust Under Will of Ashton, 36 EAP 2020 (Opinion by Saylor, J.) (holding that a beneficiary has standing to assert claims against a trustee even where she cannot demonstrate current or future loss)

Allocatur Grants

Commonwealth v. Jones, 203 EAL 2021 (granting review to consider whether the admission of a defendant's non-testifying co-defendant's confession, replacing the defendant's name with "my friend," violated the defendant's right to confrontation)

Cowher v. Kodali, 259 MAL 2021 (granting review to consider whether medical-malpractice defendants' failure to submit a special verdict slip or object to a general verdict slip estopped them from seeking a new trial on damages on the ground that there should have been a special verdict slip)

Marion v. Bryn Mawr Trust Co., 311 MAL 2021 (granting review to consider the Superior Court's purported adoption of a new tort of aiding and abetting fraud, among other issues)

Clean Air Council v. Commonwealthet al., 131 MAL 2021 (granting review to consider the standard of review for a legal issue and the substantive law governing certain fee awards in an environmental case)

Kornfeind v. New Werner Holding Co., 485 EAL 2020 (granting review to consider whether the phrase "period of limitation" in Pennsylvania's borrowing statute also includes statutes of repose)

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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