This month, the Court issued 11 precedential opinions (linked below) and 10 orders granting allocatur.

On the opinion side, the most striking case is Torsilleri, in which the Court appears to be continuing its recent course of holding legislative enactments up to stringent constitutional review. Although the court does not conduct such a review of the statutes involved (sexual offender registration and notification statutes), and instead issues a remand, it sanctions the litigants' efforts to challenge the scientific theory underlying the statutes in court. The decision is sure to raise concern about lawyers' and courts' capacities to wade into myriad areas of scientific, social scientific, and other interdisciplinary scholarship that have heretofore been regarded primarily as legislative in nature.

For appellate practitioners, the Dana Holding Corp. decision will also be interesting due to Chief Justice Saylor's attempt at the herculean task of not only explaining the history and current state of a segment of decisional retroactivity doctrine — i.e. the circumstances under which decisions holding statutes unconstitutional are applied retroactively to cases on direct appeal — but also attempting to make sense of it, with a fair degree of success. Indeed, the Chief Justice recounts a lengthy series of interrelated federal and state decisions attempting to adopt bright-line (or even dim-line) rules, before deconstructing (or even collapsing) them into the following formulation:

“the general rule in Pennsylvania will be that, at least where prior judicial precedent isn't overruled, a holding of this Court that a statute is unconstitutional will generally be applied to cases pending on direct appeal in which the constitutional challenge has been raised and preserved. At the present point in time, however, the Court is not of a mind to exclude the possibility of equitable balancing in extraordinary cases, particularly since no party to this appeal has advocated any such position.”

Slip. Op. at 32.

The Chief Justice's formulation is certain to draw the ire of legal minds who focus on the importance of predictability to the rule of law. On the other hand, once the Court has declared a statute to be unconstitutional, it is fair to say that predictability has already gone out the proverbial window.

On the allocatur side, Cosby will no doubt lead to the most newspaper headlines. In that appeal, the Court will address two of the now-infamous comedian's claims of error relative to his trial for and conviction of aggravated indecent assault: (1) a claim that the trial court erred in admitting evidence of Cosby's use of drugs to assault numerous additional women, as such evidence was inadmissible character evidence; and (2) evidentiary and other claims related to the prosecution's alleged promises not to prosecute him to procure his testimony in a related civil case. Although the Court typically only grants review of substantial legal issues that are novel or which could impact other cases, it is notable that the first issue is essentially a fact-specific one that really has import only in this case. (The second has significantly more to do with doctrine.) It is unclear whether the Court viewed the lower court's disposition of the character evidence issue as flawed, found it important to weigh in on this high-profile case, or had some other basis for granting review, but it will be interesting to see whether highly public cases make bad law.

Additionally, although Cosby will generate more press coverage, the grant of allocatur in Mortimer my have the most impact. Under current Pennsylvania law, it is extremely difficult to hold one commercial entity responsible for the liabilities of related ones, or to “pierce the corporate veil.” In Mortimer, the court has indicated a willingness to consider adopting significantly more liberal “single-entity” or “enterprise” theories of veil-piercing, which would allow for piercing where entities essentially operate together toward a common purpose (and which it has rejected numerous times before). If the Court were to adopt such theories, not only would many businesses face higher exposure to liability, but, because these theories are often predicated on complex factors tests, significantly higher litigation costs as well.

Precedential Opinions

• Easton Area Sch. Dist. v. Miller, 13 MAP 2019 (Opinion by Dougherty, J.) (holding that a school-bus surveillance video is subject to disclosure pursuant to the Right-to-Know Law, with redaction of images of students)

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

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

• Gass v. 52nd Judicial District, 118 MM 2019 (Opinion by Saylor, C.J.) (holding a local judicial district's anti-medical-marijuana policy conflicts with Pennsylvania's Medical Marijuana Act)

• Commonwealth v. McIntyre, 25 EAP 2019 (Opinion by Todd, J.) (reiterating that claims that a conviction and sentence arise under a statute which is constitutionally void ab initio are challenges to the legality of sentence and holding that convictions for failing to register as a sexual offender under Megan's Law III, a statute constitutionally void ab initio, are void ab initio)

• Rullex Co., LLC v. Tel-Stream, Inc., 27 EAP 2019 (Opinion by Saylor, C.J.) (adopting a holistic standard for whether a covenant not to compete ancillary to an employment contract, and, thus, requires no additional consideration to be valid).

• ACLU of Pa. v. PA State Police, 66 MAP 2018 (Opinion by Wecht, J.) (finding that the Commonwealth Court applied an unnecessarily deferential standard of review under the Right to Know Law)

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

  • See alsoDissenting Opinion by Mundy, J.

• Harrison v. Health Network Lab, 51 MAP 2019 (Opinion by Dougherty, J.) (holding employees who are not themselves the subject of unlawful discrimination but who are terminated as whistleblowers vis-a-vis unlawful discrimination may bring actions under Pennsylvania's Whistleblower Law).

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

  • See also Concurring Opinion by Wecht, J.

  • See also Dissenting Opinion by Donohue, J.

• In re: J.W.B. & R.D.B., 93 MAP 2019 (Opinion by Donohue, J.) (holding that a parent may be foreclosed from challenging the validity of his consent to permit adoption where it is valid under Pennsylvania law but not in the parent's domiciliary state's law)

  • See also Concurring Opinion by Todd, J.

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

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

• Commonwealth v. Torsileri, 37 MAP 2018 (Opinion by Baer, J.) (vacating an order declaring certain provisions of Pennsylvania's sexual offender registration and notification statute unconstitutional but remanding for further proceedings)

  • See also Dissenting Opinion by Donohue, J.

  • See also Dissenting Opinion by Mundy, J.

• Dana Holding Corp. v. WCAB (Smuck), 44 MAP 209 (Opinion by Saylor, C.J.) (reformulating Pennsylvania's retroactivity doctrine and holding that a recent decision holding a provision of the Workers Compensation Act unconstitutional applies retroactively to cases on direct appeal at the time of decision in which the litigants preserved the claim).

  • See also Concurring Opinion by Dougherty, J.

• Williams v. Wetzel, 95 MAP 2019 (Opinion by Saylor, C.J.) (reversing a Commonwealth Court decision granting an inmate relief for a prison's violations of administrative rules where the inmate identified no constitutionally protected liberty or property interest at issue)

• In the Interest of D.R., 45-49 WAP 2019 (Opinion by Mundy, J.) (holding that CPS agencies have no statutory authority to compel a parent's urine sample).

Allocatur Grants

• Philadelphia Gas Works v. PUC, 21 EAL 2020 (granting review to consider a municipal lien arising out of delinquent gas bills constitutes a judgment subject to 6% statutory post-judgment interest rates, rather than a utility's 18% tariff rates)

  • See Commonwealth Court Opinion

• Kirksey v. Children's Hospital of Pittsburgh of UPMC, 17 WAL 2020 (granting review to consider the whether the admission of evidence of the risks and complications requires the issuance of an appropriate limiting jury instruction).

  • See Superior Court Opinion

• Commonwealth v. Cosby, 9 MAL 2020 (granting review to consider the admissibility of certain evidence of prior bad acts as well as the validity of a prosecution after, and the admission of evidence gleaned, after an alleged agreement not to prosecute)

  • See Superior Court Opinion

• Mortimer v. McCool, et al., 19 & 20 MAL 2020 (granting review to consider whether to adopt the “enterprise” or “single entity” theory of corporate veil-piercing)

  • See Superior Court Opinion

• Linkosky v. PennDOT, 10 WAL 2020 (granting review to consider whether a licensee's out-of-state suspension warranted denial of his application for a camera card)

  • See Commonwealth Court Opinion

• Commonwealth v. Wardlaw, 13 WAL 2020 (granting review to consider whether the Superior Court erroneously quashed an appeal from an order denying a post-sentence motion for judgment of acquittal after a mistrial)

  • See Superior Court Opinion

• Commonwealth v. Harth, 562 EAL 2019 (granting review to consider whether the Superior Court erred in remanding a timely-trial case for a hearing on the Commonwealth's due diligence where the trial court did not determine the issue after the initial hearing)

  • See Superior Court Opinion

• Commonwealth v. H.D., 728 MAL 2019 (granting review to determine whether a defendant's belief that otherwise-criminal interference of custody with a child is “necessary to preserve the child from danger to its welfare” must be reasonable to constitute a defense)

  • See Superior Court Opinion

• In re: B.W., 432 WAL 2019 (granting review to consider whether developing a plan constitutes an act in furtherance of a threat to kill a co-worker for purposes of Pennsylvania's involuntary mental-health commitment laws)

  • See Superior Court Opinionand Dissent

• Always Busy Consulting, LLC v. Babford & Co., Inc., 436-38 WAL 2019 (granting review to consider whether the Superior Court erred in quashing an appeal where the appellant filed two notices of appeal at the same docket number at the direction of the trial court)

  • See Superior Court Opinion