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January 2020 Docket Review

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

This month, the Court issued 8 precedential opinions (linked below) and 7 orders granting allocatur.

On the opinion side, the most newsworthy case is probably Briggs. In Briggs, the Court rejected an attempt by an fracking company (and an onslaught of fracking industry amici) to transform the common law rule of capture — which provides that a landowner whose land shares a common pool of oil or gas with a neighbor may withdraw from his portion of the pool without concern for whether it causes drainage from his neighbor's portion — into a freestanding right to frack, regardless of whether the operation causes a trespass into the neighbor's property, an approach previously adopted in the State of Texas, and an approach which many oil companies assumed would govern when they acquired mineral rights. On the other hand, the court's decision also rejected the Superior Court's suggestion that the rule of capture was somehow inapplicable because fracking is a technologically advanced method of extraction, or that fracking ipso facto causes trespass. In short, if a plaintiff can prove that an adjacent fracking operation caused a physical intrusion, however slight, into its property, it has a cause of action. That's a lot more liability than oil companies subjectively expected, but it's also been the law for most of American history.

But for appellate practitioners, the more interesting case is Parrish, a capital PCRA case in which appellate counsel filed a Rule 1925(b) statement that merely indicated that the PCRA court erred in failing to grant relief. Although that's not necessarily too vague, it clearly was in Parrish, where the petitioner had advanced upwards of 20 claims, requiring the PCRA court to guess at which it should address in service of Parrish's appeal. A long time ago, the Court issued an order requesting additional briefing on a few questions, among them (1) whether the statement should be viewed as waiving all the claims, or just the ones the trial court did not ultimately address; and (2) whether, if it did waive all the claims, it constituted ineffective assistance of counsel per se and warranted a summary remand for reinstatement of appellate rights. This might not seem remarkable, but the first question was essentially an invitation to overrule longstanding jurisprudence that defects in a concise statement constituted procedural default regardless of whether they undermined appellate review, and the second was an invitation to overrule a 2010 decision holding that such summary relief was never permissible in the context of the PCRA. The court ultimately did not address the first question, and, although answering the second in the affirmative, never expressly overruled the 2010 decision. All that said, the astute observer might conclude the court is newly willing to reconsider the harsh effects of Rule 1925(b) in an appropriate case.

On the allocatur side, McKelvey is the latest in a far-too-numerous list of cases requiring interpretation of the Pennsylvania Right-to-Know Law, a statute with all the clarity of granite. In this iteration, the Court will determine whether certain financial information submitted by marijuana-related companies to the Department of Health is subject to RTKL disclosure because, those companies being unbanked (because they are technically illegal enterprises), disclosure of their cash assets would pose a risk to their security. Also interesting is Peters, in which the Court will consider whether an employee returning from an employer-sponsored social event was within the scope of his employment for purposes of the Workers' Compensation Act. Given the court's recent actions with regard to the Act and to the workplace generally, one suspects the court may be considering whether to recognize that workplace social events are more workplace than social.

Precedential Opinions

  • Commonwealth v. Parrish, 733 CAP (Opinion by Todd, J.) (holding that PCRA counsel's filing of a “vacuous” concise statement of errors complained of on appeal constituted ineffective assistance of counsel per se and warranted the appointment of new counsel and the right to file a concise statement nunc pro tunc)

  • In the Interest of N.B.-A., 11 EAP 2019 (Opinion by Todd, J.) (holding that the evidence was insufficient to support a finding of child abuse where a mother's daughter was sexually abused by her stepbrother and there was no clear evidence that she was aware or the risk of abuse)

  • City of Pittsburgh v. Fraternal Order of Police (Opinion by Saylor, C.J.) (clarifying applicable standards of review in appeals from grievance arbitration awards pursuant to the Police and Firemen Collective Bargaining Act)

  • Commonwealth v. Starry, 19 WAP 2019 (Opinion by Saylor, C.J.) (holding that the Commonwealth may prove BAC-based DUIs by “strong” circumstantial evidence in certain circumstances)

  • Thompson v. Thompson, 36 WAP 2018 (Opinion by Donohue, J.) (holding that a court may not sanction civil contempt of a support order via a suspended sentence)

  • Briggs v. Southwestern Energy Production Co., 63 MAP 2018 (Opinion by Saylor, C.J.) (holding that the rule of capture applies to fracking unaccompanied by physical intrusion, but not to fracking accompanied by physical intrusion)

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

    • Disclosure: This author served as co-counsel for a party participating in this appeal.

  • In re Grand Jury Investigation No. 18, 18 MM 2019 (Opinion by Baer, J.) (holding that release of a grand jury report was not statutorily authorized where it was not connected to organized crime, public corruption, or recommendations in the public interest, as opposed to merely recommendations in alleged victims' interest)

  • Commonwealth v. Cost, 39 EAP 2018 (Opinion by Saylor, C.J.) (holding that an officer's decision to use a suspect's identification to check for warrants, plus additional circumstances, constituted a seizure within the meaning of the Fourth Amendment to the United States constitution, but declining to adopt a per se rule to that effect)

Allocatur Grants

  • McKelvey v. Pa. Dept. of Health, 393, 394, & 396 MAL 2019 (granting review to consider whether financial information in applications to operate marijuana-related businesses before the Department of Health must be disclosed pursuant to the Pennsylvania Right-to-Know Law)

  • Clark v. Stover, 494 MAL 2019 (granting review of whether an attorney's continuing representation of a client tolls the statute of limitations for a legal malpractice action)

  • Commonwealth v. Lineman, 492 EAL 2019 (granting review of a claim by a defendant that, during an altercation, he possessed a weapon he was not otherwise eligible to possess in self-defense)

  • Sadler v. WCAB (Philadelphia Coca-Cola Co.), 413 EAL 2019 (granting review of a decision reversing a determination that an incarcerated individual was not entitled to workers' compensation and related constitutional claims)

  • DeGliomini v. ESM Productions, Inc., 376 EAL 2019 (granting review to consider whether the City of Philadelphia may contractually require a release of otherwise statutorily provided liability, and whether such release applies to negligence occurring prior to the release)

  • Peters v. WCAB (Cintas Corp.), 467 MAL 2019 (granting review to consider whether an employee traveling home from an employer-sponsored social event was within the scope of his employment for purposes of the Workers' Compensation Act)

  • Commonwealth v. Bres, 231 WAL 2019 (granting review to consider whether a challenge to Pennsylvania's sexual offender registration requirements was properly construed as within the scope of the Post Conviction Relief Act and, thus, subject to its timeliness requirements)

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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