This month, the Court issued 2 precedential opinions (linked below) and 5 orders granting allocatur (or its equivalent).

On the opinion side, the more salient of the two is clearly Weeks, which held that the Commonwealth Court did not abuse its discretion in failing to preliminarily enjoin the enforcement of Act 12 of 2019, which eliminated significant amounts of cash assistance for poor and otherwise marginalized Pennsylvanians, as violative of the original-purpose and single-subject requirements of the Pennsylvania Constitution. Chief Justice Saylor, writing for a 6-1 majority, held that those challenging Act 12 failed to establish a likelihood of success on the merits, and, thus, were not entitled to a preliminary injunction. Oftentimes, litigation involving the likelihood of success on a constitutional challenge is just a stalking horse for litigation of the challenge itself: if the Justices aren't convinced you have shown that you are likely to prevail on your constitutional challenge, you are probably not likely to prevail on your constitutional challenge. That's not the case here, where, although Chief Justice Saylor garnered a six-justice majority for his position concerning the injunction, (1) Justice Todd authored a concurrence, joined by Justices Donohue and Dougherty, emphasizing the discretion afforded to a court concerning the grant or denial of injunctive relief and directly reserving judgment on the ultimate question; and (2) Justice Wecht would have granted the injunction. In other words, Weeks will be back.

On the allocatur side, Wise will allow the court to yet-again address the exception to the Sovereign Immunity Act for “dangerous condition[s] of Commonwealth agency real estate,” this time in the context of a local housing authority's failure to provide sufficient outdoor lighting near a public housing development. This exception has been the subject of a litany of cases and a coordinate litany of frankly, largely semantic arguments about what constitutes a condition of real estate, and Wise is consistent with that infamous tradition: the Commonwealth Court's analysis rests in part on the conclusion that, whereas the Commonwealth's failure to provide indoor lighting during the day (to alleviate the darkness caused by the enclosure of a building) is an artificial condition of its real estate and therefore renders the exception applicable, the Commonwealth's failure to provide outdoor lighting during the night (to alleviate the darkness caused by the rotation of the Earth) involves a natural condition and therefore renders the exception inapplicable. At some point, the Court may want to consider a retreat from this semantic game and reformulate its conception of the exception ab initio.

Precedential Opinions

• Weeks v. Dept. of Human Servs., 22 EAP 2019 (Opinion by Saylor, C.J.) (holding that the Commonwealth Court did not abuse its discretion in refusing to enjoin Act 12 of 2019, terminating certain state anti-poverty cash assistance, as violative of the original purpose and single-subject requirements of Article III, Sections 1 and 3 of the Pennsylvania Constitution )

  • See also Concurring Opinion by Todd, J.

  • See also Dissenting Opinion by Wecht, J.

• Suffolk Construction Co. v. Reliance Ins. Co., 40 MAP 2019 (Opinion by Donahue, J.) (interpreting insurance contract involving long-defunct insurance company under Connecticut Law)

  • See alsoDissenting Opinion by Baer, J.

Allocatur Grants

• Finnerty v. Pennsylvania Dept. of Community and Economic Dev., 262 EAL 2019 (granting review to consider whether the “internal, pre-decisional deliberative exception” of the Right to Know Law applies to information shared with certain subcontractors)

• Wise v. Huntingdon Cnty. Housing Dev. Corp., 404 MAL 2019 (granting review to consider whether the Sovereign Immunity Act's real estate exception applies to a county housing authority's allegedly negligent failure to install appropriate outdoor lighting)

• Heimbach v. Amazon, 124 EM 2019 (granting certification to consider whether an employee's time spent awaiting employer mandated security constitutes time subject to Pennsylvania's minimum wage laws and whether claims involving allegedly trivial amounts of time may be ignored consistent with the maxim de minimis non curat lex)

• Fox v. Smith, 324-327 EAL 2019 (granting review to consider appropriate restrictions on venue in actions for defamation arising from internet-based speech)

• In re: Adoption of K.M.G., 362-365 WAL 2019 (granting review to consider whether the Superior Court erroneously concluded it lacked jurisdiction to consider sua sponte whether a child's legal interest was represented by counsel in an adoption proceeding)