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June 2020 Docket Review

Posted by Corrie Woods | Jun 30, 2020 | 0 Comments

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

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)

  • 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).

  • 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)

  • 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)

  • 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)

  • 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)

  • 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)

  • 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)

  • 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)

  • 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)

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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