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May 2020 Docket Review

Posted by Corrie Woods | May 31, 2020 | 0 Comments

This month, the Court issued 7 precedential opinions (linked below) and 2 orders granting allocatur.

On the opinion side, two items of note for the appellate practitioner, and both tend to point toward the Court's increasing comfort with limiting prudential doctrines that, depending on your point of view, either prevent the court from losing legitimacy or prevent it from doing substantial justice. First, in Coleman, the court appears to be continuing in a recent trend of looking the other way on waiver of issues. In that case, the petitioner raised a claim of ineffective assistance of counsel that the PCRA court rejected on the ground that the underlying claims lacks arguable merit, not speaking to whether the attorney's act or omission was rooted in reasonable strategy or caused the petitioner prejudice. On appeal, the petitioner erroneously framed his claims as if he were merely litigating the claims in the first instance (i.e., as claims of trial court error), rather than litigating derivative claims of ineffective assistance of counsel. The Commonwealth objected to the petitioner's advocacy in this regard as rendering his claims waived, given that it failed to address the remaining to inquiries, and the petitioner replied that, given that the PCRA court addressed only the initial arguable-merit inquiry, he was free to do the same. In an opinion by Justice Max Baer, the Court, although citing authority seemingly submarining the petitioner's argument, nevertheless determined it was free to address the issue, seemingly because its order granting allocatur implicated only the arguable-merit inquiry:

Generally speaking, if a PCRA petitioner seeks review of claims of ineffective assistance of counsel in a direct appeal from a PCRA court order denying a PCRA petition, the petitioner must present the appellate court with argument on all three prongs of the ineffective-assistance-of-counsel standard. See, e.g., Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007) (“Further, appellants continue to bear the burden of pleading and proving each of the [ineffective assistance of counsel] elements on appeal to this Court.”). Here, however, Appellant is not appealing directly from an order denying his PCRA petition and wholesale rejecting his claims of ineffective assistance of counsel. Rather, this Court granted discretionary review to examine the manner in which the lower courts addressed the arguable merit prong of those claims. We, therefore, find no fault in Appellant's advocacy to this Court, as it aligns with the issues that the Court decided to address.

Coleman, 24 EAP 2019, at 8. An earlier court might have dismissed the claim (and, if no other issues warranted discretionary appeal, the entire appeal), but as I have noted in earlier posts, this Court appears eager to get to, and resolve legal issues, and it appears much more comfortable dispensing with arguable impediments to doing so.

Second, in Ladd, the court holds that application of several real estate requirements real estate broker licensing requirements, as applied to “short-term vacation property managers,” violate the state constitutional right to substantive due process. In so doing, the Court continues down the path of entrenching the “real and substantial relationship test,” or a requirement that statutes must bear a “real and substantial” relationship to a legitimate governmental purpose, and be neither “oppressive” or “unnecessary” to accomplishing it, in Pennsylvania constitutional jurisprudence. As Justice David Wecht notes in his dissent, and as he has noted before, Pennsylvania's employment of that standard stands in stark contrast to the federal standard, which is a “rational relationship” test that largely defers issues of policy and fit to the legislature. The federal courts abandoned a more stringent standard most famously employed in Lochner v. New York, 195 U.S. 45 (1905), in the early 20th century, largely in the context of regulations on business and labor in post-Gilded-Age America, after hard-earned wisdom that the legal community and the (in the federal system, unelected) judges it creates often have their own views about what the law should be, and that such a rigorous constitutional standard often turns what one jurist thinks is sensible into a Platonic truth that it is. Lochner is something of an un-utterable monster among modern lawyers, judges, and legal scholars, particularly those concerned about judicial overreach.

In fairness to the Court, however, its particular decisions in this area are not Lochner, which held that minimum wage and maximum hour laws violated workers' freedom to contract (i.e., freedom to be overworked and underpaid). Moreover, the elected Justices have something that their federal counterparts (and, in truth, even a majority of members of the General Assembly) do not: statewide electoral mandates. Thus, the concerns that they are unaccountable superlegislators is something of a misfire.

Nevertheless, only time will tell if the Court keeps what could be a dangerous creature in its cage.

Precedential Opinions

  • Commonwealth v. Coleman, 24 EAP 2019 (Opinion by Baer, J.) (holding that defendant's trial counsel was ineffective in failing to object to the admission of evidence as hearsay, despite the evidence being admissible as offered for non-hearsay purposes, because counsel's failure precluded an instruction that the evidence be considered only for non-hearsay purposes; and holding that the Superior Court erred in failing to address one of defendant's claims; holding that alleged prosecutorial statements suggesting a lower burden of proof were not reversible error because of a trial court's ensuing instructions stating the correct burden of proof).

  • Commonwealth v. Johnson, 40 EAP 2018 (Opinion by Saylor, C.J.) (holding that the Pennsylvania Constitutional protection against double jeopardy applies not only where prosecutorial misconduct intentionally provokes a mistrial, but also where it recklessly does so)

  • Commonwealth v. Hoover, 25 MAP 2019

    • Opinion Announcing Judgment of the Court by Todd, J., (joined by Donohue & Dougherty, JJ.) (opining that a trial court erred in vacating an earlier order terminating intermediate punishment on the basis of an offense committed after the order was entered because to interpret the statute permitting trial courts to reconsider their rulings as permitting them to do so would violate notice requirements of the constitutional right to due process)

    • Concurring Opinion by Donohue, J. (opining as to two collateral points)

    • Concurring Opinion by Wecht, J. (agreeing with OAJC's holding, but finding its application lacked record support, and expressing an additional view that the trial court erred because its decision lacked record support and thereby violated due process)

    • Concurring and Dissenting Opinion by Baer, J. (joined by Saylor, C.J., and Mundy, J.) (rejecting the OAJC's decisional basis as waived)

  • Carr v. Dept. of Transp., 3 MAP 2019 (Opinion by Mundy, J.) (holding that the Commonwealth Court improperly analyzed a claim that a governmental employer violated an employee's rights in terminating her for social media posts and reinstating the termination)

  • Commonwealth v. Taylor, 29 MAP 2019 (Opinion by Wecht, J.) (holding that a juvenile court's certification of a juvenile delinquency matter to criminal court in part based on the juvenile's assertions of innocence violated his federal constitutional privilege against self-incrimination)

  • Ladd v. Real Estate Commn., 33 MAP 2018 (Opinion by Dougherty, J.) (holding that certain real estate broker licensing requirements, as applied to “short-term vacation property managers,” violate the state constitutional right to substantive due process)

  • Northern Berks Regional Police Commn. v. Berks Cnty. FOP, 53 MAP 2019 (Opinion by Dougherty, J.) (reinstating arbitrator's award in police union grievance)

Allocatur Grants

  • Commonwealth v. Howard, 450 WAL 2019 (granting review of whether a mother's placement of a child in the backseat of a hired car without a seat belt was sufficient to convict her of endangering the welfare of a child)

  • Commonwealth v. Raboin, 441 WAL 2019 (granting review of whether the admission of a forensic interview during rebuttal was improper)

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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