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April 2020 Docket Review

Posted by Corrie Woods | Apr 30, 2020 | 0 Comments

This month, the Court issued 12 precedential opinions (linked below) and 6 orders granting allocatur.

On the opinion side, the most topical decision is Friends of Danny Devito (no, not that Danny Devito; this one is a Republican candidate for state representative in Allegheny County). In that case, Devito, among others, represented by a former Republican candidate for United States Senate, raised a series of statutory and constitutional challenges to Governor Wolf's emergency orders closing non-life-sustaining businesses, asking the Supreme Court to exercise its extraordinary jurisdiction to summarily hear the appeal and raising a series of statutory and constitutional claims. Justice Donohue, writing for a majority of the Court, agreed to exercise extraordinary jurisdiction, but rejected the claims outright, often in terms revealing the claims' lack of development and even inherent obtuseness. Chief Justice Saylor, writing for a three-Justice minority, would have declined to exercise extraordinary jurisdiction, and would have been more circumspect about the petitioners' claims that they were unable to test the orders' classification of businesses for rationality. The petitioners, undeterred, have sought review before the United States Supreme Court, and, at the time of this writing, that Court has required a response. Given the lack of development and strength of their claims before our High Court, as well as their filing before *the* High Court, I am not bullish on their prospects. One imagines that their audience may have been someone other than the judicial system (for example, a certain segment of voters), from the outset.

More interesting to the appellate lawyer, however, is Koehler. The decision, which arises initially from former Justice Michael Eakin's involvement a racist and sexist e-mail scandal and involved a claim of appellate court bias, led to the recusal of every Justice who was presiding at the time of the initial appeal and the employment of a rarely-used mechanism for the seating of other judges on the court: here, Judges Megan McCarthy King, Deborah Kunselman, and Carolyn Nichols. The irony of a sexism scandal leading to what (I believe) is the first majority-female panel of the Court in history is not lost on this author. Even more significant, however, is that Justice Wecht, writing for a majority comprised of himself, Justice Donohue, and the three aforementioned judges, held that claims of appellate court bias were cognizable before PCRA courts throughout the Commonwealth, rejecting arguments that such subjection would undermine its authority and the judicial discipline system. Indeed, Justice Wecht wrote, “the fact that this Court sits atop the judiciary of Pennsylvania does not elevate this Court above the law, nor can it support a conclusion that constitutional deprivations attributable to this Court are insulated from review. The rule of law applies to us as it does to all.” Justice Dougherty, joined by Justice Mundy, dissented, citing concerns that the decision paved the way for its precedents to be unraveled, and its authority to be questioned, by PCRA courts.

As much Justice Wecht's language stirs visions of a judicial Magna Carta, its longevity remains to be seen. Koehler's holding (and that language) were essentially lifted from his nonbinding, two-Justice Opinion in Support of Reversal in Commonwealth v. Taylor, 218 A.3d 1275 (Pa. 2019), to which Justices Dougherty and Mundy likewise dissented, largely on the same grounds. The true test will be what happens when a claim unrelated to former Justice Eakin arises, and Chief Justice Saylor, Justice Baer, and Justice Todd, return. Although Koehler now has the force of stare decisis, a robotic conception of which would require all seven Justices to apply it regardless of their personal views, it is not rare for Justices in dissent to continue to hold a proverbial candle for their positions, or for Justices who have not themselves previously spoken to a question to view it as a blank slate.

On the allocatur side, the Court granted review in Firearm Owners Against Crime to address an issue of pre-enforcement standing to challenge certain Harrisburg firearms regulations (it is Harrisburg's position that the plaintiffs, who were never cited for violations of the regulations, have jumped the gun), which may reaffirm, or, alternatively, expand pre-enforcement standing doctrine, which could have massive impacts in the areas of constitutional and administrative law.

Finally, a treat for Pittsburgh-area residents like this author, the Court granted allocatur in Lamar Advantage to review a Commonwealth Court decision that leaves a vinyl sign that some people (and some people writing this sentence) view as a garish eyesore mounted atop the Mount Washington Overlook (notably, within sight of four of the Justices' chambers). I'm sure that the Justices will decide the case on the law and the facts, but Lamar's claim that their zoning permits to operate an old-timey electronic sign apply equally to hanging a tarp off of Pittsburgh's most beautiful vista may seem less persuasive on Grant Street than in Philadelphia.

Precedential Opinions

  • Commonwealth v. Koehler, 768 CAP (Opinion by Wecht, J.) (holding, inter alia, that a petitioner may litigate claims of appellate court bias in a PCRA court)

  • ODC v. Altman, 158 DB 2017 (Opinion by Mundy, J.) (disbarring attorney who engaged in unethical sexual and financial relationships with a client and later filed a baseless collection action against her)

  • Erie Ins. Exchange v. Moore, 20 WAP 2018 (Opinion by Dougherty, J.) (holding that an insurer's duty to defend an estate was triggered where the decedent, while attempting to kill his wife, negligently killed a third party).

  • Trigg v. Children's Hospital, 3 WAP 2019 (Opinion by Todd, J.) (holding that plaintiffs waived a claim that the trial court erred by not personally conducting voir dire)

  • Commonwealth v. Trahey, 38 EAP 2018 (Opinion by Wecht, J.) (holding that warrantless DUI blood-draws are not permissible pursuant to the exigent circumstances exception to the constitutional protections against unreasonable searches and seizures where equally probative warrantless breath tests can be performed)

  • Commonwealth v. Tedford, 773 CAP (Opinion by Donohue, J.) (affirming the denial of PCRA relief in a capital case)

  • In the Interest of J.M.G., 18 MAP 2019 (Opinion by Mundy, J.) (holding that, where psychologist-privileged materials are erroneously included in materials provided to the Sexual Offender Assessment Board, an ensuing determination is invalid and the erroneous reliance thereon constitutes structural error)

  • A Special Touch v. Dept. of Labor and Indus., 30 MAP 2019 (Opinion by Baer, J.) (holding that the definition of “employment” in the Unemployment Compensation Law, which includes those “customarily engaged” in non-employee positions, excludes only those actually engaged in such positions, rather than those who might typically be engaged in such positions)

  • Commonwealth v. Britton, 55 MAP 2018 (Opinion by Baer, J.) (holding that California law enforcement officers were not acting as agents of Pennsylvania law enforcement authorities, and, thus, declining to reach whether such agency would implicate Pennsylvania's constitutional protections)

  • Commonwealth v. Copenhaver, 48 MAP 2019 (Opinion by Saylor, C.J.) (holding that driving a vehicle with an expired registration sticker does not constitute a breach of the peace — i.e. “an act or circumstances that causes harm to persons or property, or has a reasonable potential to cause such harm, or otherwise to provoke violence, danger, or disruption to public order – implicating a sheriff's common law authority to conduct a traffic stop”)

  • Friends of Danny Devito v. Wolf, 66 MM 2020 (Opinion by Donohue, J.) (rejecting numerous statutory and constitutional challenges to Governor Wolf's coronavirus emergency order)

  • In re: H.R., 41 MAP 2019 (Opinion by Dougherty, J.) (holding provisions of Juvenile Act requiring mandatory sexual offender treatment for juveniles adjudicated delinquent for committing sexual offenses are not criminal punishments for, but, rather, collateral consequences of, the adjudications, and therefore do not implicate various constitutional criminal procedural rights)

Allocatur Grants

  • In re: P.G.F., 58 WAL 2020 (granting review to consider whether an attorney's service as guardian ad litem and counsel for a minor amounted to a conflict of interest where, finding that the minor did not know her biological father, he failed to tell her as much before asking her litigation goals)

  • Firearm Owners Against Crime v. City of Harrisburg, 724 MAL 2019 (granting review to consider pre-enforcement standing to challenge local gun regulations)

  • McCloskey v. PUC , 585-587 MAL 2019 (granting review to consider several challenges to a consumer-favorable decision of the Commonwealth Court involving evaluation and ratemaking the context of private acquisition of previously publicly owned water and wastewater systems)

  • Lamar Advantage GP Co. v. City of Pgh. Zoning Bd. of Adjustment, 409 WAL 2019 (granting review to consider whether advertising company was free to cover a large electronic sign atop Pittsburgh's Mt. Washington Overlook with a vinyl sign without seeking and obtaining new zoning and building permits)

  • In the Interest of J.J.M., 549 MAL 2019 (granting review to consider whether a conviction for terroristic threats predicated on the defendant's recklessness with regard to causing, rather than intent to cause, terror, violates the First Amendment right to free speech)

  • SLT Holdings v. Mitch-Well Energy, 336 WAL 2019 (granting review to consider issues of compliance with and abandonment of a “drill or pay” oil and gas lease)

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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