This month, the Court issued 17 precedential opinions (linked below) and 2 orders granting allocatur.

On the opinion side, the most headline-grabbing case is Wolf, in which the Court granted the Governor's request to declare the General Assembly's legislative veto of his coronavirus-related emergency orders invalid. Although the case likely generated the most media controversy, it was relatively straightforward: the Court adopted a federal decision precluding legislative vetoes and requiring that all laws be presented to the Governor before passing into law as part of Pennsylvania's constitutional jurisprudence decades ago, and, here, it merely interpreted (arguable) ambiguities in the Emergency Code to avoid an interpretation that would require it to scrap the provision entirely, a practice consistent with the longstanding constitutional avoidance canon of statutory interpretation.

Also notable is the Court's long, long-awaited decision in McClelland, in which it reaffirmed its holding in Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990), that the Commonwealth cannot establish a prima facie case by virtue of hearsay alone. Buchanan was splintered in its rationale, which, combined with other more practical circumstances, left room for the Superior Court to essentially disregard it in Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. 2015). Yet, Ricker was controversial from the outset, in part because of the significant constitutional discomfort attendant incarcerating defendants based on statements from individuals who refuse to make them in court. (For an interesting discussion of these aspects, check out Courtney M. Kenyon, Incarceration Without Confrontation: An In-Depth Look at Commonwealth v. Ricker.) No longer. McClelland is likely to lead not only to a stark readjustment of initial power dynamics in criminal cases, but also to questions about the Court's willingness to engage in more searching, qualitative sufficiency analysis.

Finally, administrative lawyers may want to take a look at Crown Castle. Although the Court's explicit holding — that an agency's interpretation of a plain and unambiguous statute is entitled no deference — is unremarkable, its application of that principle to the dense Pennsylvania Public Utility Code is something of another matter. This author is unaware of many provisions of that Code, or of most other agency-governing statutes, that aren't reasonably subject to patent or latent ambiguity, but I have a feeling we may be seeing some soon.

On the allocatur side, not a ton to speak of: the Court will consider the implications of the U.S. Supreme Court's limitation of third-party doctrine in Pacheco and the interstices of Pennsylvania constables' peculiar detention authority.

Precedential Opinions

• Commonwealth v. Byrd, 34 WAP 2018 (Opinion by Mundy, J.) (holding that consent to recording can be predicated on conduct and constructive knowledge, in the context of a prison-recorded telephone call)

• Lowman v. UCBR, 41 EAP 2018 (Opinion by Donohue, J.) (holding that the statutory control test governs the determination of a claimant's self-employment pursuant to the Unemplyoment Compensation Act)

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

• In re: Estate of Small, 26 EAP 2019 (Opinion by Saylor, C.J.) (holding that provisions of the Probate, Estates, and Fiduciaries code that preclude parents who have failed to fulfill duties to support dependent children from inheriting from their intestate estates applies only to parents who have failed to fulfill established legal duties to support dependent children, rather than social or moral duties)

• Temple v. Providence Care Ctr., 21 WAP 2019 (Opinion by Wecht, J.) (holding that a trial court's authority to declare a mistrial sua sponte applies only in the context of an “exceedingly clear error” that constitutes a “severe deprivation of a party's liberty interest” and results in “manifest injustice”).

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

• Mass v. UPMC, 7 WAP 2019 (Opinion by Dougherty, J.) (holding that a mental health professional's duty to warn of a patient's threat is not limited to named individuals, but also to a “readily identifiable group”: in this case, the patient's neighbors in an apartment complex)

  • See also Dissenting Opinion by Baer, J.

• Commonwealth v. McClelland, 2 WAP 2018 (Opinion by Dougherty, J.) (holding the Commonwealth cannot establish a prima facie case at a preliminary hearing on the basis of hearsay alone)

  • See also Concurring Opinion by Wecht, J.

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

  • See also Dissenting Opinion by Baer, J.

• Walsh v. BASF Corporation, 14 WAP 2019 et al. (Opinion by Donohue, J.) (reiterating that the admissibility of expert scientific testimony under the Pennsylvania Rules of Evidence is subject to the Frye test of general acceptance, rather than the Daubert test of reliability, and applying that test with some granularity in the context of a tort action)

  • See also Concurring Opinion of Wecht, J.

  • See also Concurring Opinion by Baer, J.

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

• Commonwealth v. Hamlett, 8 WAP 2019 (Opinion by Saylor, C.J.) (rejecting a claim that appellate courts should not affirm on the basis of harmless error where the Commonwealth has not raised the issue)

  • See also Concurring Opinion by Donohue, J.

  • See also Dissenting Opinion by Wecht, J.

• Commonwealth v. Wolfel, 23 WAP 2019 (Opinion by Saylor, C.J.) (reaffirming waiver-of-waiver doctrine)

  • See also Concurring Opinion by Wecht, J.

  • See also Dissenting Opinion by Dougherty, J.

• Commonwealth v. Smith, 2 EAP 2019 (Opinion by Dougherty, J.) (holding an individual with an active criminal bench warrant is a “fugitive” for purposes of the offense of possession of a firearm by a fugitive)

  • See also Dissenting Opinion by Baer, J.

  • See also Dissenting Opinion by Wecht, J.

• Commonwealth v. King, 3 EAP 2019 (Opinion by Donohue, J.) (holding the Commonwealth's failure to provide notice of its intent to seek a sentencing enhancement did not render the ensuing application of that sentencing enhancement illegal, but that the defendant's consecutive sentences for two inchoate crimes of attempted murder and conspiracy were statutorily prohibited)

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

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

• Commonwealth v. Montgomery, 4 EAP 2019 (Opinion by Baer, J.) (reiterating that concealment of a firearm is a question of fact to be determined by a totality of the circumstances)

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

  • See also Dissenting Opinion by Wecht, J.

• Crown Castle NG East, LLC v. PUC, 2 MAP 2019 (Opinion by Mundy, J.) (holding that an agency's interpretation of a plain and unambiguous statute is entitled no deference)

  • See also Concurring Opinion by Wecht, J.

• Estate of Benyo, 90 MAP 2019 (Opinion by Wecht, J.) (holding anti-alienation statutes regarding municipal pensions apply only while the pension funds are in the possession of the pension fund administrator)

• Commonwealth v. Lacombe, 35 MAP 2018 et al. (Opinion by Dougherty, J.) (holding the most recent iteration of sexual offender registration and notification requirements does not constitute a criminal punishment for purposes of, and therefore retroactive application thereof does not violate, the constitutional prohibitions on ex post facto laws)

  • See also Concurring Opinion by Mundy, J.

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

• Renner v. Court of Com. Pl. of Lehigh Cnty., 52 MAP 2019 (Opinion by Todd, J.) (holding that application of the Pennsylvania Human Relations Act to the judicial branch would violate the constitutional separation of powers)

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

• Wolf v. Scarnati, 104 MM 2020 (Opinion by Wecht, J.) (holding that if the legislative veto in Section 7301 of the Emergency Management Services Code did not require presentment to the governor for approval or veto, it would violate the Pennsylvania constitutional presentment requirement, and, thus, construing Section 7301 as requiring presentment; holding that the legislature cannot unilaterally suspend laws)

Allocatur Grants

• Commonwealth v. Pacheco, 79 MAL 2020 (granting review to consider whether an order permitting the Commonwealth to conduct 108 days of surveillance on a defendant's cellular site data violated the Fourth Amendment in light of a recent U.S. Supreme Court decision limiting third-party search doctrine)

  • See also Superior Court Opinion

• Commonwealth v. Allen, 227 MAL 2019 (granting review to consider whether a constable who detains an individual for a “breach of the peace” may continue to detain the individual while another officer with greater authority comes to investigate additional offenses)

  • See also Superior Court Opinion