This month, the Court issued 10 precedential opinions (linked below) and 16 orders granting allocatur.

On the opinion side, it is a tale of two cities: while the Court's criminal opinions address some interesting issues — individual privacy rights in Turpin and the criminal justice system's economic impacts in Ford and Petrick — its civil opinions are fairly dry, with several opinions merely applying existing principles of law to particular cases. The Court typically avoids such application because it is the core of the intermediate appellate courts' function.

In this appellate nerd's view, however, the Court is at its most thought-provoking in Bishop, in which Chief Justice Saylor and Justice Wecht trade competing conceptions of waiver doctrine. On the one hand, a strict waiver doctrine protects fairness: one party should not have to waste its time and money while the other paws indiscriminately at new arguments. It also protects the Court: because the Court has the last word in matters of Pennsylvania law, it stands to reason that it would benefit from thorough litigation of the issues before it in earlier fora. Nevertheless, there are countervailing interests: a litigant is not particularly prejudiced where an opposing party raises new legal questions in an appellate forum, and litigation of those issues in lower fora is rarely as meaningfully robust as the Court would like. Unfortunately, these competing prudential concerns sometimes leave Justices with exactly the amount of wiggle-room they need to raise (or evade) legal issues. Sometimes any rule is better than no rule.

On the allocatur side, it looks like the Court doesn't intend to slow down anytime soon, and its interest in considering expanding (or restoring, depending on your view of the timeline) common law tort liability and the rights of criminal defendants is clear. Plaintiffs' attorneys and criminal defense lawyers should not celebrate prematurely, however: as I have noted before, it takes 3 votes to earn discretionary review, and 4 votes to win an appeal. Moreover, although it seems like plaintiffs and criminal defendants are getting a fairer shake than under earlier courts, it is not a free for all. I don't like to make bets, but I highly suspect that oral argument in Mason — involving the question of whether the sounds of child abuse are private oral communications for purposes of the Wiretap Act — will have a decidedly pro-Commonwealth tenor.

Precedential Opinions

• Barnard v. Travelers Home and Marine Ins. Co., J-41-2019 (Majority Opinion by Wecht, J.) (holding that an increase of underinsured motorist coverage constitutes a “purchase” of insurance coverage triggering an insurer's duty to offer an insured an opportunity to waive stacking of underinsured motorist benefits).

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

• Gamesa Energy USA, LLC v. Ten Penn Center Assoc., L.P., J-5-2019 (Majority Opinion by Dougherty, J.) (applying the contract doctrine of election of remedies to commercial lease agreement)

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

• Binswanger of Pennsylvania v. TSG Real Estate, LLC, J-14A&B-2018 (Majority Opinion by Todd, J.) (applying contract-interpretation principles to real estate brokerage agreement)

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

• City of Phila. v. Galdo, J-46-2019 (Majority Opinion by Baer, J.) (holding that a party may assert a claim of adverse possession against political-subdivision properties not employed for public purposes)

• Commonwealth v. Bishop, J-51-2019 (Majority Opinion by Saylor, C.J.) (holding appellant waived claim that evidence derived from a non-Mirandized statement violates the Pennsylvania Constitution)

  • See also Concurring Opinion by Donohue, J.

  • See also Dissenting Opinion by Wecht, J.

• Commonwealth v. Ford, J-37-2019 (Majority Opinion by Wecht, J.) (holding that a plea agreements inclusion of a fine does not relieve a sentencing court of its duty to determine if the offender is able to pay the fine before imposing it)

  • See also Dissenting Opinion by Mundy, J.

• Commonwealth v. Petrick, J-33-2019 (Majority Opinion by Mundy, J.) (holding a restitution order is unaffected by the defendant's participation in bankruptcy proceedings)

• Commonwealth v. Turpin, J-39-2019 (Majority Opinion by Dougherty J.) (holding that a search warrant implicating the space of one roommate in a single-unit dwelling applies to the space of other roommates' as well)

  • See also Dissenting Opinion by Donohue, J.

• Shiflett v. Lehigh Valley Health Network, Inc., J-12-2019 (Majority Opinion by Donohue, J.) (holding that the general verdict rule precludes a new trial on damages where some amount of damages likely derived from a time-barred claim, but where the defendant failed to request a special interrogatory that would have permitted the jury to allocate the damages awarded on each claim)

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

• Berner v. Montour Township Zoning Hearing Bd., J-7-2019 (Majority Opinion by Baer, J.) (holding that the Nutrient Management Act preempts local regulation of “nutrients” including animal manure to the degree such regulation is more stringent, inconsistent, or in conflict with the Act)

Allocatur Grants

• Graham v. Check, 116 WAL 2019 (granting review of whether a trial court's instruction on Pennsylvania's “sudden emergency doctrine” improperly relieved a defendant of his duty of care to a visible pedestrian in a crosswalk)

• In re Nomination of Cohen, 455-456 EAL 2019 (granting review of whether a candidate for who withdrew major-party nominating petitions pursuant to a court order “voluntarily” withdrew them, and, therefore, was permitted to file third-party nominating papers)

• Commonwealth v. Alexander, 151 EAL 2019 (granting review of whether to overrule Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), which adopted the federal automobile exception as a matter of Pennsylvania constitutional law)

• Commonwealth v. Peck, 215 MAL 2019 (granting review of whether a statute criminalizing drug delivery resulting in death applies where the drug delivery occurred outside Pennsylvania, but the death occurred within Pennsylvania)

• Uniontown Newspapers, Inc. v. Haines, 561 & 779 MAL 2018 (granting review to consider whether a agency's Right-to-Know-Law officer's failure to personally and independently assess a request constitutes bad faith and willful and wanton behavior sufficient to warrant an award of sanctions or attorney's fees and (2) whether the law authorizes an award of attorneys fees when a court reverses a final determination of an agency, rather than, an appeals officer)

• Leight v. University of Pittsburgh, 29 WAL 2019 (granting review to determine whether physicians who initiate emergency mental-health examinations of patients in service of potential involuntary commitment may be held liable for grossly negligently failing to complete the process where the patients then harm others)

• Commonwealth v. Hill, 76 WAL 2019 (granting review to determine whether a double jeopardy claim implicates the legality of sentencing and whether the imposition of multiple convictions for DUI - general impairment and/or the imposition of a sentence of imprisonment for one count and a sentence of guilt without further penalty for the second count violate the federal constitutional prohibition on double jeopardy)

• Commonwealth v. Coleman, 167 EAL 2019 (granting review to determine (1) whether an appellate court may reject a hearsay challenge on the ground that the hearsay statement was not offered for the truth of its contents where that was not communicated to the jury; (2) whether a prosecutor may introduce evidence that a defendant carried guns and “liked to shoot people” despite earlier decisions restricting reference to guns not at issue in a particular case; and (3) whether a prosecutor may tell jurors to look at the entirety of a proceeding “all together,” despite the prosecutor's burden of proof).

• In re: Estate of Small, 88 EAL 2019 (granting review to determine whether a provision of Pennsylvania's intestate succession laws precluding parents who fail to provide for or desert a “minor or dependent child” from inheriting from them applies to a parent's adult dependent children)

• Commonwealth v. McIntyre, 132 EAL 2019 (granting review to determine, inter alia, whether decisions invalidating earlier iterations of Pennsylvania's sex offender registration and notification provisions apply retroactively to cases on collateral review)

• Lohr v. Saratoga Partners, 209 MAL 2019 (granting review to determine whether the lack of a right of redemption in the Real Estate Tax Sale Law violates the federal and/or state constitutional rights to equal protection of the laws)

• Commonwealth v. Mason, 202 MAL 2019 (granting review of whether (1) a babysitter has a reasonable expectation of privacy in her clients' child's bedroom; and (2) whether sounds caused by abuse of a child are “oral communications” or “evidence derived therefrom” subject to the restrictions of the Pennsylvania Wiretap Act)

• Rullex Co., LLC v. Tel-Stream, Inc., 128 EAL 2019 (granting review of whether a restrictive covenant in an employment agreement is unenforceable where, although contemplated prior to employment, it is not executed until after employment begins)

• S.B. v. S.S., 89 WAL 2019 (granting review of whether a gag order in a child custody case prohibiting parents from speaking publicly about the case in a way that identifies the child violates the parents' right to free speech)

• Commonwealth v. Bagnall, 109 WAL 2019 (granting review of potential Brady violation)

• In re: Passarelli Family Trust, 235 MAL 2019 (granting review of various issues relating to a lower court's termination of an irrevocable trust as induced by fraud).