This month, the Court issued 8 precedential opinions and 2 allocatur grants, summarized below.  But the Court's work product this month is overshadowed by the tragic loss of Chief Justice Max Baer, who passed away this weekend at the age of 74, just three months from what would otherwise have been his retirement at the end of the year.  Baer served as Chief Justice for roughly a year and a half, beginning in April 2021, and had served as a Justice on the court for nearly two decades, since 2004.  On the court and in the legal community, Baer was regarded as bright, with an ebullient love for justice, which showed perhaps most vividly during his vigorous questioning at the Court's oral arguments, and with a commitment to protecting children that no doubt grew from his earlier service as a Judge on the Famility Division of Allegheny County's Court of Common Pleas. 

In terms of major cases, most recently, Baer authored the Court's decision establishing Pennsylvania's new Congressional districts on the basis of "least change," a move clearly designed to protect the Court's institutional integrity in what could otherwise have been a political morass.  Earlier decisions are legion, but what this author recalls most about Justice Baer is his ability to tackle difficult subjects.  Baer frequently wrote decisions in difficult and confusing subject areas such as taxation, insurance regulation, and arcane property law, to name a few, and approached them with the same attention and gusto as even the highest-profile of cases.  May his memory be a blessing.

After Baer's passing, Justice Debra Todd took up the mantle as Chief Justice, and, in fact, as the first woman in Pennsylvania to serve in the role.  In the preceding months, Baer and Todd had begun preparing for the transition which was otherwise planned for the end of the year.  Todd, apart from authoring some of the Court's most high-profile cases in the last several years (more on this next month), has a reputation for writing with an eye toward accessibility and clarity, and for fostering consensus and conviviality among her colleagues, both of which are likely to serve her well as she takes over at the helm of the Court.

As for the vacant seat, in theory, the Governor, with consent of the Senate, has the authority to appoint a new justice to serve through next year's judicial elections.  In practice, given the relationship between Governor Tom Wolf and the Republican-controlled Senate (to say nothing of the relationship between the Court and the Senate), and the impending gubernatorial election, this author would anticipate the seat remaining vacant at least until a new governor is inaugurated.  And although a Governor Josh Shapiro might be able to push through the nomination of a moderate Democrat (or a moderate Republican) for a year, assuming he wins, it's likely the seat would remain vacant next year as well.  If Senator Doug Mastriano takes the governor's residence, on the other hand, expect a considerably conservative justice to be named, even if he or she would remain in the minority.  As this author has frequently stated, liberal and conservative are terms that tend to lose meaning when one takes the bench, and this Court far more often proceeds on issue-by-issue coalitions of traditionally liberal or conservative positions, rather than by predictably reliable liberal or conservative votes.

Precedential Opinions

Commonwealth v. Humphrey, 81 MAP 2021 et al. (Opinion by Baer, C.J.) (holding that a trial court has authority under the Mental Health Procedures Act to dismiss charges against an individual who is incompetent and unlikely to become competent to stand trial)

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

Rehabilitation and Community Providers Assn. v. Dept. of Hum. Servs., 13 MAP 2021 (Opinion by Mundy, J.) (applying administrative exhaustion doctrine to a dispute involving the adequacy of state funding for community participation support for certain disabled individuals)

• See also Concurring Opinion by Dougherty, J.

Cowher v. Kodali, 77 MAP 2021 (Opinion by Dougherty, J.) (applying the general verdict rule to a medical malpractice case)

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

Commonwealth v. Gamby, 62 MAP 2021 (Opinion by Todd, J.) (holding that the unwanted kissing of a person's neck constitutes the touching of "sexual or other intimate parts" for purposes of the offense of indecent assault)

• See also Dissenting Opinion by Donohue, J.
• See also Dissenting Opinion by Wecht, J.

Bell v. Wilkinsburg Sch. Dist., 25 WAP 2021 (Opinion by Todd, J.) (holding that a school district is not required to obtain prior approval from the Department of Education before changing the mode of transportation for charter school students from school buses to public transportation).

• See also Dissenting Opinion by Mundy, J.

Commonwealth v. Gallaway, 17 WAP 2021 (Opinion by Todd, J.) (holding that the probative value of a videotaped statement of a criminal defendant after his extradition and in prison garb was admissible)

• See also Dissenting Opinion by Wecht, J.

Commonwealth v. Stevenson, 21 WAP 2021 (Opinion by Baer, C.J.) (holding that the Commonwealth must prove actual knowledge of a protection-from-abuse order beyond a reasonable doubt to support a conviction for indirect criminal contempt)

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

Commonwealth v. Taylor, 793 CAP (Opinion by Brobson, J.) (rejecting as untimely a serial collateral attack on a capital homicide conviction)

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

Allocatur Grants

Circle of Seasons Charter Sch. v. Northwestern Lehigh Sch. Dist., 172 MAL 2022 (granting review to consider the proper application of administrative exhaustion doctrine and other issues in the context of a charter school's property tax appeal)

Dept. of Corr. v. Lynn (State Civil Serv. Commn.), 181 MAL 2022 (granting review to consider the proper application of precedent involving the constitutionality of veterans' preferences in civil service promotions)