This month, the court issued 11 opinions and 5 allocatur grants.

On the opinion side, there is a lot to process this month.  For starters, regarding Ungarean, commercial liability insurers the Commonwealth 'round are likely breathing a sigh of relief.  The case, which arose after the early-pandemic business shutdowns, primarily centered on whether insurers would be reliable for business interruption, which depended largely on whether one accepted a creative legal theory that the shutdowns caused physical loss of the shutdown facilities.  Although the question was arguably close because insurance policies are supposed to be interpreted liberally in favor of coverage, the Court unanimously held that the policies plainly did not apply to those kinds of losses.

Although Ungarean is probably the most financially important decision this month, Krasner* might be the most constitutionally significant.  In that case, the House of Representatives of an earlier iteration of the General Assembly had issued Articles of Impeachment against Philadelphia County District Attorney Larry Krasner on the eve of a new General Assembly (in which Democrats appeared poised to take control of the House, but not the Senate), and the Senate of the ensuing iteration of the General Assembly attempted to bring those Articles to a trial.  The District Attorney raised three challenges: first, that like all other General Assembly business, the Articles lapsed when a new General Assembly took office; second, that the General Assembly did not have authority to impeach a District Attorney; and third, that the Articles, which principally focused on Krasner's progressive prosecution priorities, did not amount to constitutionally impeachable conduct.  After the Commonwealth Court issued something of a scrum of opinions, the Supreme Court held that the Articles had lapsed, and did not address the two remaining issues.  The decision is important in terms of its interpretation of the Impeachment Power, to be sure, but perhaps more important because of what it implies about Pennsylvania's government: that the General Assembly and its subsidiary bodies derive their authority from the voters at each election, when they effectively adopt a new government and divest the old government of power.  In my view, this is the bedrock of a democratic republic, and it is good to see the point underlined.

Finally, I would be remiss if I did not mention that, in Anderson, in which the Court affirmed a sentence of death in a capital case, Justice McCaffery authored a short concurrence appearing to imply that the death penalty is categorically unconstitutional, albeit reserving an expression of why for future cases, and clearly indicating a view that it may be unconstitutional as currently administered because a capital defendant's quality of (usually appointed) counsel is almost always woefully deficient to the point that whether he is sentenced to death is effectively arbitrary and random.  As Justice McCaffery explained in the opinion, this latter view was repeatedly, if somewhat more obscurely, expressed by Chief Justice Emeritus Saylor while he was on the Court, and it is interesting to see Justice McCaffery not only picking up the proverbial baton, but taking it 20 years further down the field.  It will be more interesting to see whether, in future cases, he can gain the purchase of fellow Justices for some version of procedural or even substantive abolition.

On the allocatur side, I am most interested in Genser.  In recent weeks, the court has been striving mightily to process a glut of election-related decisions in advance of what appears likely to be a contentious 2024 general election.  In the past, these decisions have often come in the form of a short per curiam order deciding the issue, and a more developed opinion to follow several months later, but this process has shortcomings, to be sure, in that it reveals a degree of post-hoc rationalization.  Still, whatever limits that creates on legitimacy of the Court's decisions, the Court may find them to be outweighed by the effect that legal uncertainty creates on legitimacy of the Commonwealth's elections.  Prior to the election, essentially any rule will do in a pinch.  After the election, disputes over which rules should and should not have been followed almost invariably come with partisan recriminations.  It will be interesting to see how the Court acts in the few short weeks it has to make the rulebook clear.

Precedential Opinions

In re: Estate of Caruso, 14 WAP 2023 (Opinion by Todd, C.J.) (holding a partner's spouse may not assume and enforce the partner's rights under a partnership agreement)

In re: Canvass of Provisional Ballots in the 2024 Primary Election, 55 MAP 2024 (Opinion by Mundy, J.) (holding the requirement to sign a provisional-ballot outer envelope is mandatory and failure to comply precludes counting the vote, and that a voter who moved within 30 days of the election was entitled to vote in his prior district)

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

Commonwealth v. Walters, 102 MAP 2022 (Majority Opinion by Todd, C.J.) (holding that an expert's opinion as to cause of death predicated solely on reported history was inadmissible)

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

Ungarean v. CNA, 11 WAP 2023 (Opinion by Brobson, J.) (holding that commercial insurance policies for physical loss or damage did not cover coronavirus-related business-interruptions)

Krasner v. Ward, 2 EAP 2023 (Majority Opinion by Todd, C.J.) (holding that Articles of Impeachment passed by the House of one General Assembly do not carry over for trial by the Senate of a subsequent General Assembly)*

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

Commonwealth v. Anderson, 801 CAP (Opinion by Todd, C.J.) (affirming judgment of sentence in a capital case)

• See also Concurring Opinion by McCaffery, J.

Commonwealth v. Thomas, 808 CAP (Opinion by Donohue, J.) (affirming denial of postconviction relief in a capital case)

Commonwealth v. Berry, 16 EAP 2023 (Opinion by Wecht, J.) (holding prior arrests not leading to conviction are impermissible considerations at sentencing)

Circle of Seasons Charter Sch. v. Northwestern Lehigh Sch. Dist., 99 MAP 2022 (Opinion by McCaffery, J.) (resolving several issues in property tax reassessment appeals)

• See also Concurring Opinion by Mundy, J.

Pearlstein v. Slogoff, 21 MAP 2023 (Opinion Announcing the Judgment of the Court by Donohue, J.) (opining that income from like-kind exchanges of real property is taxable at the time of exchange)

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

Commonwealth v. Yard, 11 MM 2023 (Majority Opinion by Mundy, J.) (holding Pennsylvania-constitutional bail provision does not require an evidentiary showing to detain an individual charged with capital or life-sentence-eligible offenses without bail)

• See also Concurring Opinion by Wecht, J. 
• See also Dissenting Opinion by Todd, C.J.
• See also Dissenting Opinion by Donohue, J.

Allocatur Grants

Commonwealth v. Riley, 596 MAL 2023 (granting review to consider whether Superior Court caselaw holding that a person who trades drugs for a gun has good reason to believe the gun is stolen violates earlier cases foreclosing factual presumptions of that sort)

Genser v. Butler Cnty. Bd. of Elections, 240 WAL 2024 et al. (granting expedited review to consider two issues related to mail-in ballots)

Commonwealth v. Black, 72 MAL 2024 (granting review to consider whether the Superior Court creates uncertainty in the statute of limitations where it used an improper start date and improperly held Petitioner's engagement in the offense)

Commonwealth v. Hitchner, 462 MAL 2023 (granting review to consider whether an arrest warrant for probation violations tolls the period of probation where the violations are subsequently unproven)

City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 37 EAL 2024 (granting review to consider the continued vitality of the narrow scope of review for a police grievance arbitrator's decision)

(*) The undersigned was counsel for an Intervenor aligned with the District Attorney's position in Krasner.