This month, the Court issued 5 precedential opinions and 7 orders granting allocatur.

On the opinion side, I would be remiss if I did not acknowledge the Court's difficult and expeditious work to provide clarity to Pennsylvania election law amidst circumstances that might otherwise have sparked a constitutional crisis. The Court's decisions in In re: Canvassing Observation, In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election assiduously tied up loose ends from last month's decision in Boockvar, not only in time for then-pending challenges in state court, but also for those in federal court, thereby enabling federal judges to avoid the highly speculative practice of predicting how it would interpret state law. And, in my humble opinion, the Court's decisions are largely correct: pursuant to longstanding Pennsylvania jurisprudence, our Election Code's procedural requirements to vote are construed strictly (narrowly) because it is better to err on the side of enfranchisement than disenfranchisement. Thus, courts must are obliged to follow the letter of the law, but obliged not to gloss in a way that disenfranchises. This basic principle animates most of the Court's jurisprudence in this area, and leads fairly to its decisions this election season. Where a requirement is clear — such as the need to “clothe” this year's infamous “naked” ballots, the Court has required observance; otherwise, the Court construes the ambiguity in favor of counting votes. It's also important to point out that, contrary to the indications of certain commanders-in-chief who will remain unnamed, the Court's decisions have been far from liberal wish-lists granted from on high. Boockvar rejected several Democratic claims seeking to minimize the byzantine procedural requirements of Pennsylvania's mail-in ballot scheme, and this month, the Court declined even to address an appeal brought by Democrats involving additional requirements of the framework and late-arriving ballots.

All that said, Republicans, and particularly Republican-appointed Chief Justice Saylor, have a fair point that the Court has acted with some degree of zeal to get these issues before it and speak to them, including by addressing claims that may well be moot (particularly if the General Assembly is inclined to undermine mail-in voting in the future) or potentially even unnecessary to address. Whether this sort of approach is appropriate in the abstract, however, will be one for academicians: the Court has clearly come down against business-as-usual and in favor of intervention given the practicalities at play.

Also notable this month is the Court's decision in Adoption of K.M.G., which reiterates (several prior reiterations) of the Court's anomalous requirement that appellate courts review sua sponte certain facets of the appointment of counsel for children in termination-of-parental rights cases. Although the Court has essentially attempted to thread a needle regarding what such review does and does not require, the practical effect is that trial judges wishing are likely to appoint counsel for children as a matter of course to avoid reversal. Studious appellate practitioners may wish to review this line of cases and make the case for newly-minted structural errors, a term that was until recently a shibboleth in Pennsylvania.

On the allocatur side, in Apartment Assn. of Metropolitan Pittsburgh, the Court will revisit Pennsylvania's state-preemption of local ordinances as applied to a housing nondiscrimination ordinance, an issue it was fairly fractured on the last time it addressed it in a 2019 case involving local employment- and emergency-training- related ordinances, and, in Kennet Consol. Sch. Dist, the Court will address several challenges to local real estate taxes as violative of the state constitution's Uniformity Clause, which often leads to similar interpretive fractures among the Justices. It will be interesting to see what, if any, clarity derives from those decisions. And finally, in Brown, the Court will address a trial court's inherent authority to correct mistakes in its records and orders (forever and regardless of appeal) in a case where a trial court corrected the “mistake” of a prior jurist granting relief. The Court's decisions mapping out this power, too, have been somewhat sprawling, and the Court may be inclined to limit it here.

Elections Cases

Note: The Court has kindly published a page of elections cases of public interest throughout Pennsylvania appellate and trial courts, which can be found here.

• Kelly v. Commonwealth, 68 MAP 2020 (Per Curiam Order) (dismissing challenge to Pennsylvania's mail-in voting scheme as unconstitutional on the basis of laches)

  • See also Concurring Statement of Wecht, J.

  • See also Concurring and Dissenting Statement of Saylor, C.J.

• In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election, 31-35 EAP & 29 WAP 2020 (rejecting challenge to mail-in ballots lacking handwritten names, addresses, and/or dates on the outside envelope)

  • See Opinion Announcing the Judgment of the Court by Donohue, J.

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

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

• In re: Canvassing Observation, 30 EAP 2020 (Opinion by Todd, J.) (rejecting challenge to Philadelphia County's regulations regarding poll-watchers' proximity to canvassing activities on the ground that the Election Code does not require a particular distance and that the regulations permitted poll-watchers to observe canvassing)

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

  • See also Dissenting Opinion by Mundy, J.

Precedential Opinions

• McMichael v. McMichael, 50 & 51 WAP 2019 (Opinion by Todd, J.) (holding that a trial court erred in failing to grant a new trial on wrongful death damages where the jury awarded $0 in non-economic damages despite uncontroverted evidence of her spousal relationship with the decedent)

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

  • See also Dissenting Opinion by Dougherty, J.

• Mader v. Duquesne Light Co., 33 WAP 2019 (Opinion by Todd, J.) (holding a trial court abused its discretion in awarding a new trial on damages generally where a portion of its award was predicated on stipulations and/or unimpeachable evidence)

  • See also Dissenting Opinion by Mundy, J.

• Adoption of K.M.G., 55–58 WAP 2019 (Opinion by Baer, J.) (reiterating that the failure to appoint counsel for children in contested termination-of-parental-rights proceedings where the child's preference conflicts with the guardian ad litem's view of the child's best interests constitutes error and structural error, and holding that an appellate court should assess sua sponte whether such appointment occurred and whether the orphans' court made a determination regarding such conflict, but not the substance of the same or appointed cin Apartmentounsel's performance)

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

  • See also Concurring Opinion by Dougherty, J.

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

Allocatur Grants

• City of Johnstown v. WCAB (Sevanick), 186 WAL 2020 (granting review to consider whether the Commonwealth Court contradicted its own precedent in holding that a claimant seeking occupational disease benefits must satisfy the manifestation rule

• Commonwealth v. Satterfield, 439 MAL 2020 (granting review to consider whether the offense of accidents involving death or personal injury contemplates a single sentence for each accident or permits a single sentence for each death or injury)

• Pinkins v. Pa. Bd. of Prob. and Parole, 194 WAL 2020 (granting review to review the Parole Board's upward deviation from presumptive recommitment ranges and denial of credit for time served at liberty on parole for record support)

• Apartment Assn. of Metropolitan Pittsburgh, Inc. v. City of Pittsburgh, 144 WAL 2020 (granting review of Commonwealth Court's decision invalidating a local housing nondiscrimination ordinance as preempted)

• Grix v. Progressive Specialty Ins. Co., 76 MAL 2020 (granting review to consider whether insured's daughter was a household resident and designated insured at the time of a motor vehicle accident such that she was entitled to stacking of benefits)

• Kennett Consol. Sch. Dist. v. Chester Cnty. Bd. of Assessment Appeals, 150 MAL 2020 (granting review to consider several Uniformity Clause challenges to local real estate taxes)

• Commonwealth v. Brown, 101 WAL 2020 (granting review to consider whether the trial court's authority to correct patent and obvious mistakes in its errors extends to reconsideration of the timeliness of a PCRA petition)