This month, the Court issued 11 precedential opinions and 7 orders granting allocatur.

On the opinion side, the Court had something of a row in Mason, which involved the question of whether an in-house childcare worker had a reasonable expectation of privacy in her charge's bedroom such that the Wiretap Act prohibits audiorecordings of her therein. The majority determined that she did not, citing, among other things, the commonplace surveillance of such workers, and, indeed, the fact that there is an entire industry devoted to manufacturing “nanny cams.” Justices Donohue and Wecht dissented, reasoning the majority's decision was factually unfounded and lacking a limiting principle, and rooted in erroneous precedent, respectively. Finally, Justice Dougherty authored a concurring opinion asserting that Justice Wecht was flouting precedent too cavalierly, prompting significant back and forth with at least some degree of temerity.

As Justice Donohue suggests, the Mason decision could have far-reaching effects on the law of privacy. If a nanny has no reasonable expectation of privacy because nannies are frequently surveilled, what hope have the rest of us as society is subject to more and more surveillance every day? In this author's opinion, the Court is certainly correct that, as a positivistic matter, nannies probably do begin every day with a non-zero suspicion that they are being recorded. But, then, most people have a similar non-zero suspicion that our mobile phones, or our computers, or our smart-home-devices, may be collecting some type of surveilled data as well. What the Court appears to have missed is the normative question of whether the constitutional principles of privacy should brook this particular type of surveillance. And, as Justice Donohue indicates, it is not a broad leap to suggest that Mason applies equally to professional caregivers in other areas of the home, or family caregivers, or even the homeowner's conversations as they have breakfast, mobile phones in their pockets an a smart-home speaker on the nearby countertop. Let's hope this one is sui generis.

Also, in Chesapeake Energy Corp., the Court holds that oil and gas companies' mineral-leasing efforts are not within the definition of “trade or commerce” governed by Pennsylvania's main consumer protection law, the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). As the Court held, that definition essentially includes advertising and selling, and it reasoned that the leasing agents are essentially buyers of mineral rights who don't sell anything. Justice Dougherty, in dissent, offered a more nuanced view of leasing activity as part purchase of mineral rights, part sale of extraction services. In any event, there are probably a lot of oil-and-gas operators breathing a sigh of relief today, as leasing agents, or “landmen” as they are referred to in the profession, do not exactly have a reputation for candor and arms-length dealing.

In this author's view, the Court is right, but for the wrong reason. Although I tend to agree with Justice Dougherty's view that operators are both buyers and sellers, that fact, and the fact that landowners make sometimes substantial profits from the transaction, suggest that the sale of extraction services, as Justice Dougherty puts it, is not a sale to a consumer primarily for personal, household, or family purposes, another requirement of the UTPCPL. Simply put, landowners do not enter into oil and gas leases primarily to obtain crude oil and natural gas for their homes: they do it to make money.

On the allocatur side, the Court will soon address several items of interest for criminal practitioners. First, in Talley, it will wade into the currently hot-button issue of bail, albeit tangentially by addressing the Commonwealth's burden of proof in a bail hearing. A favorable decision for Talley could do a lot to satisfy bail reformers who challenge current bail practices as largely arbitrary and subjective. Second, in Dougherty, the court will address whether a defendant's prior testimony induced by ineffective assistance of counsel may properly be reintroduced at his subsequent trial. This is one of those issues in the criminal law that seems like an easy one, but it will be interesting to see the arguments on either side of the issue.

Precedential Opinions

• Commonwealth v. Mason, 69 MAP 2019 (Opinion by Baer, J.) (holding that a nanny lacked a reasonable expectation of privacy in her charge's bedroom such that the Wiretap Act did not prohibit the audiorecording of her communications therein)

  • See also Concurring Opinion by Dougherty, J.

  • See also Dissenting Opinion by Donohue, J.

  • See also Dissenting Opinion by Wecht, J.

• Commonwealth v. H.D., 33 MAP 2020 (Opinion by Saylor, C.J.) (rejecting Commonwealth's attempt to narrow defense to interference with custody of children that actor believed his conduct was necessary to protect the children from danger to reasonable beliefs thereof)

  • See also Dissenting Opinion by Mundy, J.

• Commonwealth v. Shaw, 21 MAP 2020 (Opinion by Saylor, C.J.) (holding that petitioners pursuant to the PCRA may assert claims of ineffective assistance of their appellate counsel for the first time on appeal)

  • See also Dissenting Opinion by Mundy, J.

• Always Busy Consulting, LLC v. Babford and Co., Inc., 11 WAP 2020 et al. (Opinion by Dougherty, J.) (holding prior ruling requiring notices of appeal at each docket number in a criminal case does not apply to appeals from a single order entered at the lead docket number for consolidated civil matters where all record information necessary to adjudication of the appeal exists, and which involves identical parties, claims and issues)

  • See also Concurring Opinion by Mundy, J.

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

• In re: P.G.F., 7 WAP 2020 (Opinion by Todd, J.) (providing guidance as to whether and when a trial court in an involuntary-termination-of-parental-rights proceeding should appoint both counsel and a guardian ad litem for the subject child)

  • See also Dissenting Opinion by Donohue, J.

  • See also Dissenting Opinion by Wecht, J.

• Linkosky v. PennDOT, 16 WAP 2020 (Opinion by Baer, J.) (holding PennDOT properly denied application for replacement camera card due to intervening Ohio DUI license suspension)

  • See also Dissenting Opinion by Donohue, J.

• Commonwealth v. Moore, 14 EAP 2019 (Opinion by Mundy, J.) (holding claim that a sentencing statute is unconstitutionally vague is a claim of illegal sentence cognizable under the PCRA and subject to the requirements thereof)

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

• Commonwealth v. Mayfield, 15 EM 2020 (Opinion by Wecht, J.) (holding trial court had no authority to remove prosecutor and appoint a private criminal defense attorney to prosecute)

• Gussom v. Teagle, 12 EAP 2020 (Opinion by Baer, J.) (holding that trial court has the discretion to dismiss a civil complaint when a plaintiff fails to offer proof that she diligently attempted to serve process on a defendant in a timely manner and there is no evidence to indicate that the defendant had actual notice of the commencement of the action)

  • See also Dissenting Opinion by Wecht, J.

• Commonwealth v. Johnson, 23 EAP 2020 (Opinion by Saylor, C.J.) (holding that compulsory joinder rules apply to lesser offenses triable at the inferior court level and greater offenses triable a the common pleas level arising out of the same criminal episode and in the same judicial district)

  • See also Dissenting Opinion by Baer, J.

• Commonwealth v. Chesapeake Energy Corp., 81 MAP 2019 (Opinion by Mundy, J.) (holding that oil-and-gas leasing activity is not governed by the Unfair Trade Practices and Consumer Protection Law)

  • See also Dissenting Opinion by Dougherty, J.

Allocatur Grants

• Lageman v. Zepp, 578 MAL 2020 (granting review to consider scope of prior decisions governing the provision of res ipsa loquitur instructions in a medical malpractice case)

  • See also Superior Court Opinion by Bowes, J.

  • See also Superior Court Dissent by Stabile, J.

• Bisher v. Lehigh Valley Health Network, 543 MAL 2020 (granting review to consider several jurisdictional and procedural issues in a wrongful death matter)

  • See also Superior Court Opinion by Olson, J.

  • See also Superior Court Opinion by Bowes, J.

• Commonwealth v. Young and Commonwealth v. Casey, 626 WAL 2020 and 627 WAL 2020 (granting review to consider scope of prior ruling requiring notices of appeal at each docket number in a criminal case)

  • See also Superior Court Opinions in Young and Casey by Bowes, J.

• Commonwealth v. Dougherty, 512 EAL 2020 (granting review to consider whether a defendant's prior testimony induced by ineffective assistance of counsel may be admitted in an ensuing retrial)

  • See also Superior Court Opinion by Stevens, P.J.E.

• Commonwealth v. Talley, 541 MAL 2020 (granting review to consider the Commonwealth's burden of proof at a bail-revocation hearing and the scope of the Best Evidence Rule as applied to screenshots of text messages)

  • See also Superior Court Opinion by Olson, J.

• Steltz v. Meyers, 225 EAL 2020 (granting review to consider the Superior Court's award of a new trial based on counsel's misrepresentation of the evidence)

  • See also Superior Court Opinion by Ford Elliott, P.J.E.

  • See also Superior Court Dissent by Bowes

• Metal Green Inc. v. City of Phila., 307 EAL 2020 (granting review to consider the standard of review and substantive law governing a zoning variance)

  • See also Commonwealth Court Opinion by Brobson, J.