This month, the Court issued 7 precedential opinions (linked below) and 2 orders granting allocatur.

On the opinion side, the Court continues on its course of striking a more balanced approach to criminal procedural rights and tort liability than its earlier, more conservative iterations. An interesting feature of its movement in this regard is that it is incremental and a bit coltish: for example, although Foster and Feleccia resolve theretofore unclear questions in favor of probationers' procedural rights and negligence liability, respectively, both occasioned numerous concurring opinions that give practitioners and future Courts plenty of room to reexamine them.

One reason may be the Court's Internal Operating Procedures, which provide that the votes of 3 Justices are sufficient to grant a discretionary appeal, as compared to the 4 necessary to create a holding and dispose of the appeal. In practice, this means that 3 Justices motivated to decide a question or reconsider an earlier decision are, to some degree, able to force the issue without the support of a majority of Justices, which, in turn, sometimes motivates other Justices to author narrower responsive opinions.

Another reason may be a matter of the Justices' particular judicial philosophies. Although a court of last resort needs a majority legal holding for its decision to have meaningful effect beyond the immediate case, many of the Justices appear to favor, at least at present, expressing a vision of the law over forming consensus. It should come as no surprise that this approach is more appealing to Justices who are likely to have a longer tenure on the Court, and, thus, may see the fruits of the jurisprudential seeds they are now planting.

On the allocatur side, the Court's grant of allocatur in Woodford looks like another indicator that it is winnowing away at administrative agency deference. (For more examples of this trend and possible motivations, check out our July 2019 Docket Review.) Woodford appears to pit two longstanding canons of statutory interpretation — the rule of lenity and administrative deference — against one another, and it is difficult to see how the rule of lenity, which has its underpinning in the right to notice and due process — can be subordinated to administrative deference, which is largely a prudential doctrine. Depending on how you view it, this erosion of administrative deference either fights industry- and political- capture of administrative agencies in favor of the rule of law, or weakens democratic in favor of judicial power. (For what it's worth, I tend to favor the former view, particularly in a state where electoral demographics increasingly favor political outcomes consistent with the current Court's likely course, and where, in any event, the Justices are themselves elected.) Either way, it will be interesting to see how the Court balances its role as the arbiter of the law with its lack of expertise in, for example, environmental science. Stay tuned.

Precedential Opinions

• Commonwealth v. Foster, J-6-2019 (Majority Opinion by Donohue, J.) (holding that probationer's conduct in posting photographs suggesting he was selling drugs was insufficient to warrant probation revocation because it was neither a violation of a specific probation term nor a new offense)

  • See also Concurring Opinion by Todd, J.

  • See also Concurring Opinion by Dougherty, J.

• Commonwealth v. Thomas, J-85-2018 (Majority Opinion by Dougherty, J.) (affirming judgment of sentence in death penalty case involving issues of the defendant's competency to stand trial, the trial court's denial of a request for an eyewitness-identification expert, and the admission of evidence of his potential deportation, and the constitutionality of Pennsylvania's death penalty statute in light of recent changes in the interpretation of the right to trial by jury)

  • See also Concurring Opinion by Wecht, J.

• In re: Petition for Enforcement of Subpoenas, J-98-2018 (Majority Opinion by Wecht, J.) (holding Commonwealth Court lacked jurisdiction to entertain physician's challenge to State Board of Medicine order denying enforcement of subpoenas, reasoning it lacked appellate jurisdiction because of the interlocutory nature of the order and that it lacked original jurisdiction because the challenge was not an action against a Commonwealth agency)

  • See also Concurring Opinion by Dougherty, J.

  • See also Concurring Opinion by Mundy, J.

  • See also Dissenting Opinion by Saylor, C.J.

• Safe Auto Ins. Co. v. Oriental-Guillermo, J-104-2018 (Majority Opinion by Todd, J.) (holding that unlisted resident driver exclusions in auto insurance policies are enforceable)

  • See also Concurring Opinion by Wecht, J.

• Feleccia v. Lackawanna College, J-96-2018 (Majority Opinion by Dougherty, C.J.) (holding college assumed duty to provide treatment from certified athletic trainers during athletic practice and that an athletic waiver was unenforceable as it pertained to claims of gross negligence)

  • See also Concurring and Dissenting Opinion by Saylor, C.J.

  • See also Concurring and Dissenting Opinion by Wecht, J.

• PPL Elec. Util. Corp. v. City of Lancaster, J-8A&B-2019 (Opinion by Wecht, J.) (holding that the Public Utilities Code preempts numerous Lancaster ordinances governing and fees assessed upon state-regulated utilities using Lancaster rights-of-way)

• Commonwealth v. Maguire, 41 MAP 2018 (Lead Opinion by Baer, J.) (holding that more stringent guidelines applicable to ordinary vehicle checkpoints do not apply, and less stringent requirements do apply, to statutorily-authorized commercial truck checkpoints)

  • See also Concurring Opinion by Saylor, C.J.

  • See also Concurring and Dissenting Opinion by Wecht, J.

Allocatur Grants

• Sivick v. State Ethics Commn., 118 MAL 2019 (granting review to determine whether, under the Public Official and Employee Ethics Act, (1) the State Ethics Commission may order a public official or employee to pay restitution for an unethically obtained financial benefit to his or her immediate family members and (2) whether, under the Act, a public employee's administration of payroll records of employees including his or her family member constitutes a conflict of interest).

• Woodford v. Pa. Ins. Dept., 172 MAL 2019 (granting review to consider (1) whether the Commonwealth Court erred in applying principles of administrative-agency deference, rather than the rule of lenity, to a penal insurance statute; and (2) whether the Commonwealth Court erred in holding that the petitioners were not entitled to summary judgment where their opponents did not respond to their motion therefor)

Disclaimer: The information provided on this blog is for informational and research purposes only and should not be construed as establishing a legal representational relationship between you and its author, or Woods Law Offices PLLC, in any way. If you have a legal problem, you should contact an attorney to discuss establishing such a relationship and obtaining such advice.