This month, the Court issued 5 precedential opinions (linked below) and 6 orders granting allocatur.

Two observations of note this month. First, it is notable that 3 of the 11 items below deal with child sexual abuse, with two opinions coming down on the side of robust investigation and monitoring of those convicted of sexual offenses. In APSCUF, the Court holds that the information-gathering — i.e., background check — aspects of Pennsylvania state colleges' anti-child sexual abuse policies are managerial prerogatives, rejecting a bid by a faculty union to hold that they are subject to mandatory collective bargaining. (The disciplinary aspects of the policy, however, appear to remain subject to collective bargaining.)

In Butler, the Court holds that certain registration, notification, and counsel requirements applicable to individuals convicted of sexual offenses and determined to be “sexually violent predators” (SVPs) — note that this statutory term is somewhat loaded as compared to its predicate, as it is defined less breathlessly as anyone who, by virtue of mental illness, is more likely to engage in a sexual offense — are not criminal punishments for, but, rather, collateral civil consequences of, the underlying convictions, and therefore not subject to myriad federal and state constitutional requirements for criminal punishments. In so doing, the Court was required to distinguish its earlier decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), in which it held that similar requirements applicable to individuals convicted of sexual offenses but not determined to be SVPs were, in fact, criminal punishments. The court did so relying largely on the ground that SVPs, unlike their non-SVP counterparts, were essentially diagnosed with dangerous mental illnesses, such that the requirements were less directly associated with conviction and closer to civil public health or other mental illness laws. The Court's distinction is a reasonable one, but, like many decisions of American courts attempting to apply the criminal punishment/collateral civil consequence framework, appears to rest more on formalism than substance: as a matter of practical reality, the requirements applicable to SVPs are akin to a lifetime term of probation, and they are imposed without the constitutional procedural rights — such as a trial by jury — typically necessary to impose such a sanction.

Finally, in Rice, the Court has granted allocatur to consider the application of a series of common-law principles governing the timeliness of filing a claim in the context of a civil action involving the Catholic Church child sexual abuse scandal.

All of this to say that the fallout from the Jerry Sandusky/Penn State scandal, which broke in November 2011, and the Catholic Church scandal, which arguably broke in the early 1990s, but reached its zenith in Pennsylvania in 2018, is not receding any time soon, and that the Court appears to be engaged in a good-faith attempt to appropriately balance the goals of protecting children and protecting others' rights (in APSCUF, workers' union rights, and in Butler and Muniz, criminal defendants' constitutional rights). At the risk of gushing, it's great, and, unfortunately, sometimes rare, to see jurists do that.

Second, a note about one of the Court's miscellaneous orders. After Governor Wolf's March 19, 2020 order directing non-life-sustaining businesses to close, some law firms brought a King's Bench petition challenging the order insofar as it applied to their practices. Later, Governor Wolf amended the order in a way that permitted them to practice, and the Court issued a per curiam order indicating that the petition was moot and dismissing it and denying it in certain other respects. This is not interesting. What is interesting is that Justice David Wecht, joined by Justices Christine Donohue and Kevin Dougherty, authored a concurring and dissenting statement expressing concern that the Governor's order, insofar as it applied to the purchase and sale of firearms, violated the federal and state constitutional rights to bear arms. (You can read the statement here.) I highly doubt that gun-rights advocates were counting on the support of what are arguably the court's three most liberal/progressive justices. Take note, because I have a feeling I will be repeating this often: judicial liberalism is not the same as political liberalism.

Precedential Opinions

• Commonwealth v. Diaz, J-57-2019 (Opinion by Donohue, J.) (holding that where the failure to furnish a language interpreter impairs a defendant's ability to communicate with counsel, it constitutes a denial of counsel per se and structural error)

  • See also Dissenting Opinion by Dougherty, J.

  • See also Dissenting Opinion by Mundy, J.

• APSCUF v. PALRB, J-74-2019 (Opinion by Todd, J.) (holding that the information-gathering aspects of Pennsylvania state colleges' anti-child sexual abuse policies are managerial prerogatives not subject to mandatory collective bargaining)

  • See also Dissenting Opinion by Dougherty, J.

• Rohland v. Wakefield, J-39-2020 (Opinion by Saylor, C.J.) (holding that correctional facilities are authorized to continue making deductions from prisoner accounts to pay costs associated with the prisoners' sentences after they are no longer serving those particular sentences and are serving other sentences)

• Commonwealth v. Housman, J-58A&B-2019 (Opinion by Todd, J.) (affirming the denial of guilt-phase relief and grant of penalty-phase relief in a capital PCRA case)

• Commonwealth v. Butler, J-89-2019 (Opinion by Dougherty, J.) (holding that sexual offender registration, notification, and counseling requirements applied to individuals convicted of sexual offenses and determined to be sexually violent predators are not criminal punishments, but, rather, collateral consequences, of the underlying convictions and determinations and therefore are not subject to myriad federal and state constitutional rules governing criminal punishments)

  • See also Concurring Opinion by Mundy, J.

Allocatur Grants

• Gussom v. Teagle, 522 EAL 2019 (granting review to consider the scope of a plaintiff's obligation to make a good-faith attempt at service prior to the expiry of a statute of limitations)

• Commonwealth v. Shaw, 590 MAL 2019 (granting review of the Superior Court's declination to find a claim of ineffective assistance of PCRA counsel raised for the first time on appeal waived and observance of the standard of review in appeals from orders denying PCRA relief).

• Terra Firma Builders, LLC v. King, 606 MAL 2019 (granting review to determine whether a property owner who seeks to challenge the perfection of a mechanics lien' must file preliminary objections to the lien prior to or before enforcement thereof)

• Commonwealth v. Eid, 482 EAL 2019 (granting review to consider whether certain enhanced penalties for DUI - refusal of blood test violate the Pennsylvania constitutional protection against unreasonable searches and seizures and/or are unconstitutionally vague because they provide no express maximum penalty)

• Commonwealth v. Perez, 550 EAL 2019 (granting review of the Superior Courts application of the Commonwealth's burden of proof at a preliminary hearing)

• Rice v. Diocese of Altoona-Johnstown, 325 WAL 2019 (granting review to consider the application of several common-law temporal-limitation doctrines in a child sexual abuse case)