This month, the Court issued 7 precedential opinions (linked below) and 8 orders granting allocatur.

On the opinion side, a few insights. Now two years into its current composition, the Court is somewhat ambivalent in its orientation toward precedent. A narrow, but fairly consistent majority of the Court (although sometimes a different majority, depending on the issue) appears to favor a conservative, incremental approach to glossing upon or re-evaluating the Court's prior decisions, to the dismay of at least a few Justices who would prefer the Court take a more liberal, bolder interpretive approach. The Court's decision in Working Families Party , which, in my view, actually restricts its broad construction of the Free and Equal Elections Clause of the Pennsylvania Constitution as announced in last year's redistricting case, is probably the best example of this phenomenon, and its decision in Mitchell, which declines to expand earlier doctrine preventing evidence of informed consent in personal injury actions, is another. It's a meta-principle to keep an eye on, both as newer Justices further develop their jurisprudence of precedent, and as more experienced Justices react, and, in the longer term, retire.

Second, the Court this month had some difficulty reviewing the issues it wants to review: in HIKO, the court granted review of an Excessive Fines issue only to find it waived for lack of preservation, and in Shaffer, it granted review of an abandonment-of-privacy-interest issue only to resolve the case on the basis of private-search doctrine. Although the proverbial switcheroos could be attributable to something as simple as the Court missing waiver in its initial review of the case, it could also point to difficulties in building majority expressions of law or judicial preference to provide a gloss on one doctrine over the other.

Either way, and notably, both led to derivative disputes about meta-principles of appellate law: (1) in HIKO, the majority's reliance on waiver doctrine was criticized as outside the scope of the Court's grant of allocatur; and (2) in Shaffer, the majority's reliance on the principle that a court may affirm a lower court on any basis supported by the record was criticized as unfair. These dispositions could appear somewhat contradictory from a litigant's perspective: the majority in HIKO refused to address an issue based on waiver doctrine, which is rooted in the notion that appellate courts should not review claims unanticipated and undeveloped by litigants and trial courts, whereas the majority in Shaffer took great pains to do exactly that.

On the allocatur side, the Court appears increasingly willing to review issues of fairness to civil plaintiffs and criminal defendants. Indeed, 3 of its grants of allocatur involve tort law – Bourgeois, Nicole B., and Harrison – and 4 deal with criminal justice reform: Copenhaver involves arguably overzealous use of force (in the form of arrest); Davis and Lehman involve arguably unfair imposition of costs on typically-already unable-to-pay criminal offenders; and Moore would appear to be signaling an interest in reframing or reconsidering roughly two decades of law that route virtually all post-conviction actions through the time-bar restrictions of the Post Conviction Relief Act.

Precedential Opinions:

• Working Families Party v. Commonwealth, 34 EAP 2017 (Majority Opinion by Mundy, J.) (holding that the “anti-fusion” provisions of the Election Code, which prohibit candidates who have formally sought one political party's nomination from seeking another's, but which allow them to wage write-in campaigns for major party nominations, but not third-party nominations, do not violate the Equal Protection Clause of the United States Constitution, the Free and Equal Elections Clause of the Pennsylvania Constitution, or the Free Speech and Association Clauses of the Pennsylvania Constitution principally because they apply equally to all candidates and are justified by the fact that, absent the provisions, because another provision of the Election Code requires that a single checkbox appear for each candidate on the ballot, the Commonwealth would unable to determine whether a vote for a candidate is in his or her capacity as one party's candidate or the other's, and therefore, unable to determine the parties' support and status as a major or third party in subsequent elections); see also Concurring and Dissenting Opinion by Todd, J.; Concurring and Dissenting Opinion by Wecht, J..

• HIKO Energy v. Pennsylvania Pub. Util. Commn., 39 EAP 2017 (Majority Opinion by Mundy, J.) (holding that civil penalties imposed upon an electricity supplier for intentionally overcharging consumers during the 2014 “polar vortex” were not imposed as punishment for litigating their validity; and that the penalties were supported by substantial evidence); see also Dissenting Opinion by Donohue, J.

• Commonwealth v. Shaffer, 16 WAP 2018 (Majority Opinion by Baer, J.) (holding that a computer owner who furnishes his computer to a third-party repairer, who unilaterally searches the computer and finds child pornography, the repairer's search is a “private search” that does not implicate the Fourth Amendment, and justifies police in conducting a subsequent identical search); see also Concurring and Dissenting Opinion by Wecht, J.; Dissenting Opinion by Saylor, C.J..

• Mitchell v. Shikora, 55 WAP 2017 (Majority Opinion by Todd, J.) (holding that although evidence of a patient's consent to the risks and complications of surgery is irrelevant in a medical negligence action, evidence of the risks themselves is relevant to the standard of care for a procedure and may be admitted in such actions, subject to other applicable evidentiary principles); see also Concurring Opinion by Wecht, J.; Concurring and Dissenting Opinion by Donohue, J..

• Bousamra, v. Excela Health, 5 WAP 2018 (Majority Opinion by Mundy, J.) (holding that the attorney work-product doctrine is not waived by disclosure to third parties unless the work product is disclosed to an adversary or disclosed in a manner which significantly increases the likelihood that it will be transmitted to an adversary); see also Concurring Opinion by Donohue, J.; Concurring Opinion by Wecht, J..

• Commonwealth v. Santiago, 1 EAP 2018 (Majority Opinion by Todd, J.) (holding that a police officer's independent observations of a defendant purged the taint of a subsequent warrantless search of his mobile phone that would otherwise have invalidated a subsequent in-court identification); see also Dissenting Opinion by Wecht, J..

• In re: Estate of Easterday, 15 MAP 2018 (Majority Opinion by Donohue, J.) (holding that the failure to comply with certain procedural rules for establishing grounds for divorce precludes the application of a provision of the Probates, Estates, and Fiduciaries Code that provides that the establishment of grounds for divorce revokes a decedent's designation of a spouse as a life insurance beneficiary; holding that ERISA does not preempt a state law breach of contract claim to recover funds that were paid pursuant to an ERISA-qualified employee benefit plan); see also Concurring and Dissenting Opinion by Wecht, J..

Allocatur Grants:

• Commonwealth v. Moore, 556 EAL 2018 (granting review of construction of petition for writ of habeas corpus as a petition for relief pursuant to the Post Conviction Relief Act)

• Commonwealth v. Weir, 14 WAL 2019 (granting review of whether a claim that the amount of restitution is speculative and unsupported is a nonwaivable challenge to the legality of sentence)

• Bourgeois v. Snow Time, Inc., 769 MAL 2018 (granting review of potential legal and evidentiary errors in a personal injury action).

• Commonwealth v. Copenhaver, 13 MAP 2019 (granting review of whether driving with an expired registration tag constitutes a “breach of the peace” and therefore permits an arrest).

• Commonwealth v. Davis, 52 MAL 2019 & Commonwealth v. Lehman, 69 MAL 2019 (granting review of whether the costs of sentencing are “costs of prosecution and trial” that may be imposed upon convicted offenders).

• Nicole B. v. School Dist. of Phila., 13 EAL 2019 (granting review of whether a statute providing that minority tolls statutes of limitations and/or a statute permitting equitable tolling of claims pursuant to the Pennsylvania Human Relations Act apply to minors' complaints to the Pennsylvania Human Relations Commission)

• Harrison v. Health Network Laboratories, 24 MAL 2019 (granting review of whether considering a whistleblower of violations of the Pennsylvania Human Relations Act must bring any ensuing claim of retaliation for whistleblowing via the Act).

• Gregg v. Ameriprise Financial, Inc., 490 WAL 2018 (granting review of whether the Superior Court too broadly interpreted the “catch-all” provision of the Pennsylvania Unfair Trade Practices and Consumer Protection Law to non-deceptive, non-fraudulent conduct).

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