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February 2020 Docket Review

Posted by Corrie Woods | Feb 29, 2020 | 0 Comments

This month, the Court issued 4 precedential opinions (linked below) and 5 orders granting allocatur.

On the opinion side, although Baldwin will likely be the most media-covered case issued this month (because it is tangentially related to the Jerry Sandusky child sexual abuse scandal), this author is paying more attention to Dean and Young.

In Dean, the Court holds that a drug detoxification and mental health treatment institution cannot avail itself of qualified immunity under the Mental Health Procedures Act where its patient is admitted for and primarily treated for drug detoxification and does not obtain mental health treatment. Central to the court's reasoning is that, whereas the Act provides immunity for providers of mental health treatment so as to promote access thereto, the Pennsylvania Department of Human Services has defined that term by reference to American Psychological Association guidelines except that it excludes, among other conditions identified in those guidelines, drug dependency: as such, in the Court's view, the Act provides no immunity where a patient is admitted for and primarily treated for drug dependency.

The court's reasoning is far from unquestionable. First, the term “mental illness,” in common parlance, might well include drug dependency, and there is certainly no language in the Act affirmatively excluding it. Moreover, by the Court's (and DHS') own indication, the psychological community certainly regards the category as including drug dependency, and the Court does not explain how the Act's language itself excludes it, or how its purpose of promoting the availability of mental health treatment does not similarly apply to promoting the availability of drug-dependency treatment. Finally, earlier or other courts might be inclined to find that the statutory language warrants deference to the DHS' definition, but this Court has, over the last year or so, begun questioning whether it might be better suited to interpret statutory language than Harrisburg bureaucrats.

In Young, the question presented is a relatively simple one: may the Pennsylvania Board of Probation and Parole rescind its previous grant of time-credit for a parolee's time spent at liberty on parole based on subsequent violations of parole? Young is clear in one respect: in a unanimous opinion, the Court says no. But that unanimity, for all practical purposes, seems poised to break down. In a concurring opinion, Chief Justice Saylor, joined by Justice Mundy, posits that the Board would be free to do so if it had just conditioned its grant of time-credit on its future ability to rescind it based on subsequent violations. In a mirror-image concurring opinion, Justice Wecht, joined by Justice Todd, says it may not. Justices Donohue, Baer, and Dougherty express no opinion.

Young, in this regard, provides an illustration of the benefits and burdens of judicial activism and minimalism. On one hand, if Chief Justice Saylor had not offered the Board a potential alternative way to achieve its preferred result, it may have simply thrown its figurative hands in the air and abandoned the kind of rescission at issue, to the detriment of its policy goals. On the other hand, there is something to be said for the proposition that the judicial duty is to decide the case before the court, not to provide prospective advice for litigants (or to preemptively challenge the advice as flawed). Either way, expect to see the issue arise sometime in the future.

On the allocatur side, Rogers seems the most interesting. In addition to providing guidance as to the contours of Pennsylvania's Rape Shield Law and its intersection with the federal constitutional right to present a defense, it will provide the Court another opportunity to address the harshness of its extant Pa.R.A.P. 1925(b) jurisprudence, an opportunity it forewent recently in Commonwealth v. Parrish (see our December docket review). In Parrish, a PCRA petitioner filed a Rule 1925(b) statement that failed to identify which of his dozens of PCRA claims he sought to reiterate on appeal, and the PCRA court, guessing, addressed some of those claims. After submission of the case, the Court directed briefing on (1) whether the vagueness of the statement occasioned waiver of all of the claims regardless of the PCRA court's divinations, ostensibly opening the door to loosen the bright-line rules of 1925(b) waiver; and (2) certain issues related to ineffective assistance of counsel per se, which required a waiver finding to be justiciable. It ultimately declined to revisit Rule 1925(b) jurisprudence and instead addressed the ineffectiveness issues, but Rogers would appear to provide it another chance.

For my part, I think the Court's jurisprudence could use reexamination. Unlike certain other of waiver rules, Rule 1925(b) is not primarily ajudicative: it is not designed to ensure that an opposing party or a trial court has fair notice of a claim and an opportunity to respond. By the time a Rule 1925(b) statement is required, all of a litigants claims have already been raised or waived. Instead, Rule 1925(b) is primarily dialectic: it is designed to enable the trial court to justify, and the appellate court to review, the trial court's decision. Applying its waiver provisions where the courts are entirely able to do that task is Rhadamanthine and pointless.

Precedential Opinions

  • Office of Disciplinary Counsel v. Baldwin, J-63-2019 (Opinion by Donohue, J.) (reprimanding former Justice and erstwhile general counsel for Penn State Cynthia Baldwin for conflicts of interest arising from her concurrent representation of Penn State and three of its administrators in their personal capacities in grand jury proceedings related to the Jerry Sandusky child sexual abuse scandal).

  • Dean v. Bowling Green-Brandywine, J-79-2019 (Opinion by Dougherty, J.) (holding qualified immunity pursuant to the Mental Health Procedures Act is inapplicable where a patient is admitted for and primarily treated for drug detoxification and does not receive treatment to facilitate recovery from a mental illness)

  • Young v. Pa. Bd. of Prob. and Parole, J-100-2019 (Opinion by Donohue, J.) (holding that the Pennsylvania Board of Probation and Parole lacks the authority to rescind previously granted time-credit for time spent at liberty on parole)

  • Roverano v. John Crane, Inc., J-10A&B-2019 (Opinion by Mundy, J.) (holding the Fair Share Act does not displace common law per capita apportionment of liability in strict liability asbestos litigation)

Allocatur Grants

  • Commonwealth v. Fitzpatrick, 288 MAP 2019 (granting review to determine whether a decedent's note apparently forecasting his eventual slayer was improperly admitted under the “state of mind” exception to the rule against hearsay and, if so, whether its admission constitutes error notwithstanding an appellate court's view that it was actually admitted for purposes other than the truth of its contents and, thus, not hearsay)

  • Commonwealth v. Yale, 523 MAL 2019 (granting review to consider whether the Superior Court correctly interpreted and applied the law applicable to evidence of prior bad acts)

  • Commonwealth v. Rogers, 523 EAL 2019 (granting review to consider the proper scope of Pennsylvania's Rape Shield Law where a defendant seeks to prove that sex derived from consensual prostitution; granting review to consider whether the defendant waived his weight-of-the-evidence challenge by filing a vague concise statement of reasons relied upon for allowance of appeal where he previously litigated a post-sentence motion on the issue and the trial court addressed it in its opinion)

  • Commonwealth v. Finnecy, 252 WAL 2019 (granting review to consider whether a single conviction constitutes a “history of present or past violent behavior” for purposes of the Recidivism Risk Reduction Incentive Act)

  • In re Appeal of Coatesville Area Sch. Dist., 522 MAL 2019 (granting review to consider whether the lower court erred in applying res judicata and collateral estoppel where a companion case was not appealed).

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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