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Caselaw 2006

Methodological Provisions:

In the Matter of Condemnation by Urban Redevelopment Auth. of Pittsburgh, 913 A.2d 178 (Pa. 2006): per Cappy, C.J., Court upholds condemnation of adult movie theater against First Amendment and Art. I, section 7 claims.  Court does not reach standing issue because, unlike treatment in federal courts, standing in courts of Pennsylvania is “nonjurisdictional and waivable.”

Stackhouse v. Commonwealth, 892 A.2d 54 (Pa. Cmwlth. 2006), the panel, per Judge Leadbetter, distinguishes between claims for damages and for affirmative injunctive relief, which were held barred by sovereign immunity, 1 Pa.C.S. section 2310, and claims seeking to restrain state officials from affirmative acts, which were not. The court did not appear to distinguish actions to enforce State constitutional rights at issue in this case from any other kind of claim.

Roadcloud v. Pennsylvania Board of Probation and Parole, 2006 WL 83453 (E.D. Pa. January 6, 2006)–Judge Kauffman dismisses State Equal Protection claim brought by former employees under State sovereign immunity statute, 1Pa.C.S. section 2310, which does not exempt state constitutional claims from its coverage.

Jones v. City of Philadelphia, 890 A.2d 1188 (Pa. Cmwlth. 2006): the court, per Cohn Jubelirer, using the 4-part Edmunds test, held that where the government uses excessive force to effect a seizure, the Pennsylvania Constitution provides no greater protection than does the federal Fourth Amendment. In light of the adequate remedy under section 1983, the court declined to recognize a cause of action for money damages for violation of Article I, section 8. On October 25, 2006, the Pennsylvania Supreme Court denied without opinion a petition for allowance of appeal of the Pennsylvania Commonwealth Court decision. PA Supreme Court Docket Number 95 EAL 2006.

Article I. Declaration of Rights

Section 1–Hiller v. Fausey, 904 A.2d 875 (Pa. 2006): per Baer, J., Court held that as an issue of first impression, application of statute allowing visitation or partial custody to grandparents upon death of child’s parent did not violate father’s federal due process right to direct the care, custody, and control of his child.  In a concurring opinion, Justice Newman would hold, “[p]ursuant to the Pennsylvania Constitution, [that] the child has a fundamental right to have his or her best interests considered. In balancing the fundamental rights of parents and children, there is no single overriding factor; rather, courts should consider every fact relevant to the physical, emotional, intellectual, moral, and spiritual well-being of a child. Parenthood, though not paramount, will always be a factor of significant weight.”

Section 3: Religious Freedom–Gibbons v. Kugle, 908 A.2d 916 (Pa. Super. 2006): panel per Colville, J., holds, inter alia, that order requiring ex-husband to contribute to parochial school tuition for minor daughter does not violate right not to be compelled to support any place of worship.

Meggett v. Pennsylvania Department of Corrections, 892 A.2d 872 (Pa. Cmwlth. 2006)–panel, per Judge Leavitt, holds that Department’s regulation limiting “Afro” hairstyles to four inches in length as violative does not violate inmate’s freedom of religion or equal protection under either the federal or Pennsylvania Constitutions.

Section 5In re Nomination Paper of Rogers, 908 A.2d 948 (Pa.Cmwlth. 2006): per Colins, P.J., statutory requirement that minor party candidate file signatures for ballot access equal to 2% of largest vote for elected candidate in last preceding election, does not violate constitutional requirement that “[e]lections shall be free and equal.. .”

Section 6-Commonwealth v. White, 910 A.2d 648, (Pa. 2006): per Eakin, J., in a fragmented decision on the facts, a four-Justice majority concludes that the Commonwealth has a right to a jury at the degree of guilt hearing after a defendant pleads guilty to murder generally.

Commonwealth v. Kerry, 906 A.2d 1237 (Pa. Super. 2006): per Orie Melvin, panel holds that the Pennsylvania constitutional right to a jury trial in a criminal case attaches, as under the federal constitution, only if the offense is defined as “serious” in terms of an authorized penalty of more than six months imprisonment; therefore there is no right to a jury trial for the first offense of driving under the influence, 75 Pa.C.S. section 3802(A)(1).

Fritz v Wight, 907 A.2d 1083 (Pa. 2006)–per Justice Baer, reversed Superior Court and held that civil jury verdict with special interrogatories will be sustained where different groups of 10 jurors comprise the majority for different questions as long as some groups of 10 jurors agree on each interrogatory and on the final verdict.  Justice Saylor dissented.

Section 7–In the Matter of Condemnation by Urban Redevelopment Authority of Pittsburgh, 913 A.2d 178 (Pa. 2006): per Cappy, C.J., Court affirms the order of Commonwealth Court rejecting objections to the declaration of taking in the context of the condemnation of an adult movie theater as part of a 3-block blighted area; majority rejects a State constitutional free expression claim premised on Pap’s A.M. v. City of Erie, 812 A.2d 591 (2002) because “unlike the Pap’s matter, there is no silent, content-based reason that is ‘inextricably linded’ to the content-neutral reason of urban redevelopment.”  Nor is there a complete ban of expression.  Justice Saylor, joined by Justice Castille, dissent.

Section 8–Commonwealth v. Laventure, 894 A.2d 109 (Pa. 2006): against the background of constitutional holdings that the Pennsylvania particularity requirement is more demanding than the parallel language in the fourth amendment, Justice Saylor holds for a unanimous court that a “John Doe” criminal complaint is insufficient to toll the running of the statute of limitation in an arson prosecution.

Section 9– Commonwealth v. Charlton, 902 A.2d 554 (Pa. Super. 2006): a panel per Tamilia J., affirms a conviction for rape and related charges in which the child victim was permitted to testify via closed circuit television pursuant to 42 Pa.C.S.A. section 5985, which was adopted on authority of an amendment to Art. I, section 9.

Section 10Adams Outdoor Advertising , LP. v. Zoning Hearing Board of Smithfield Township, 902 A.2d 469, (Pa. Cmwlth. 2006): unanimous panel, per Simpson, J., holds, inter alia, that Township zoning ordinance requiring removal of existing commercial advertising signs on property where development is proposed does not constitute an amortization of an existing nonconforming use without compensation, and thus does not violate Pennsylvania Constitution; the court distinguished PA Northwestern Distributors, Inc. v. Zoning Hearing Board of Township of Moon, 584 A.2d 1372 (Pa. 1991).

Section 11–Warner v. Lawrence, 900 A.2d 980 (Pa.Cmwlth.Ct. 2006): per Jubelirer, J., court holds that legislative extension of local government tort immunity to charter schools does not violate the open courts provision of Section 11.

Thibodeau v. Comcast, 2006 WL 416863 (Pa. Com. Pl. 2006): based in part on Article I, section 11, Philadelphia County Judge Bernstein holds preclusion of class action remedies in consumer adhesion agreements are contrary to public policy and therefore invalid and unenforceable.

Section 14–Commonwealth v. Sloan, 907 A.2d 460 (Pa. 2006): Justice Baer holds for a unanimous court that, in light of Art. I, section 14’s denial of bail to prisoners when no conditions will reasonably assure the community’s safety, Pa.R.Crim.P. 600’s requirement of release upon “nominal bail” must be interpreted to allow court imposed, non-monetary conditions upon a defendant who otherwise might be denied bail pursuant to section 14.

Article II. The Legislature

Section 8–Stilp v. Commonwealth, 910 A.2d 775, (Pa.Cmwlth. 2006)–panel, per Judge Simpson, sustained legislators’ demurrers to claim that aspects of legislative compensation violate Section 8’s limitation of legislative compensation to “salary and mileage”.

Section 15–Fowler-Nash v. Democratic Caucus of the Pennsylvania House or Representatives, 469 F.3d 328 (3rd Cir. 2006): panel, per Smith, J., affirms District Court’s denial of defendants’ motion for judgment on the pleadings premised on legislative immunity in a section 1983 case alleging discharge of a legislative assistant in violation of First and Fourteenth Amendment rights.  The federal common law legislative immunity does not provide an absolute shield on these facts and the Pennsylvania Constitution’s Speech and Debate Clause cannot shield a State legislator from a violation of federal law.

Article III. Legislation

Sections 1-4, see Stilp v. Commonwealth infra at Art. V, section 16.

Section 3DeWeese v. Cortes, 906 A.2d 1193 (Pa. 2006): in a unanimous per curiam order, without opinion, the Pennsylvania Supreme Court affirmed the order of Commonwealth Court, which had held that the bill that codified the DNA Act and amended the Judicial Code section relating to comparative negligence violated the State Constitution’s single subject rule.

Section 11–Appropriation Bill limits
Uniontown Hosp. v. Commonwealth, Dept. of Health
, 905 A.2d 560 (Pa. Cmwlth. 2006): per Pellegrini, J., holds that language in the General Appropriations Bill that compelled the Department of Health to use a portion of appropriations for the “negotiation of criteria under the angioplasty demonstration project” is unconstitutional as violation of limits on appropriation because the language was not germane to the appropriation; the appropriations bill sought to compel the Department to undertake actions in particular way; the appropriation conflicted with the Health Care Facilities Act, and the bill extended beyond the life of the General Appropriations Act.

Section 32–Special Laws
Pennsylvania Turnpike Com. v. Commonwealth
, 899 A.2d 1085, 2006–Justice Castille holds for a unanimous court that Act that mandated the Turnpike Commission to engage in collective bargaining with first-level supervisors, but did not require any other agency to do so with regard to its first-level supervisors, is a special law in violation of section 32.

Article IV. The Executive

Section 16Jubelirer v Rendell, 904 A.2d 1030 (Pa.Cmwlth. 2006): unanimous court per Colins, P.J., holds that Governor may use line item veto to remove substantive riders from appropriation bills as opposed to restricting the veto power to amounts of appropriations: “if the General Assembly can put it in, the Governor can take it out.”

Article V. The Judiciary

    Separation of powers

Section 9Society Created to Reduce Urban Blight v. Zoning Board of Adjustment, 908 A.2d 967 (Pa.Super. 2006): McGinley, J., holds for court, inter alia, that amendment depriving taxpayer group of right to appeal administrative decision would violate Art. V, section 9 if applied retroactively.  President Judge Colins, joined by Judge Leadbetter, dissents on this point.

Section 10–Commonwealth v. Whitmore, 912 A.2d 827 (Pa. 2006): per Newman, J. Court holds that Superior Court exceeded its authority by ordering recusal of the trial judge when no party had filed a motion to recuse; such an action interferes with the administrative and supervisory functions of the Supreme Court.

Piunti v. Commonwealth, 900 A.2d 1017 (Pa.Cmwlth.Ct. 2006): per McGinley, J., court holds that attorneys have standing to challenge legislative amendment to Unemployment Compensation Law allowing non-attorney, non-employees to represent corporate employers in unemployment proceedings and that the amendment violates the Pennsylvania Supreme Court’s exclusive jurisdiction to regulate the practice of law.

Section 16(a)– Stilp v. Commonwealth, 905 A.2d 918 (Pa. 2006), per Castille, J., for five Justices, upheld the July 7, 2005 pay raise and partially upheld the November 16, 2005 repeal of the pay raise, except for the repeal of the judicial increase, which was held to violate Art. V, section 16(a).

Section 18In re DeLeon, 902 A.2d 1027 (Pa.Ct.Jud.Disc. 2006), per Sprague, J., court holds that the issue of the enforceability of rules enacted by Judicial Conduct Board is “solidly settled” and that failure to comply with time limits for investigation warranted dismissal of complaint.

Article VII. Elections

Section 6Kuznik v. Westmoreland County Board of Commissioners, 902 A.2d 476 (Pa. 2006), per Newman, J., court reverses injunction granted by Commonwealth Court prohibiting the county from using electronic voting machines without a referendum on the subject, on the ground, inter alia, that federal Help America Vote Act preempts State constitutional and statutory referenda requirements.

Article VIII. Taxation and Finance

Section 1–Downingtown Area School District v. Chister County Board of Assessment Appeals, 913 A.2d 194 (Pa. 2006): per Saylor, J., striking down statutory preclusion of tax uniformity challenge if common level ratio is within 15% of estimated predetermined ratio and permitting taxpayer to introduce evidence of assessment-to-value ratio of similar properties.  Chief Justice Cappy, joined by Justice Eakin, dissented.

Beattie v. Allegheny County, 907 A.2d 519 (Pa. 2006): in a highly fact specific decision, Justice Saylor, for a five Justice majority, upholds the dismissal of a tax uniformity action in equity challenging Allegheny County’s property assessment system; equity may be used instead of statutory appeals in administrative challenges only where the statutory appeal is inadequate, which is satisfied here, and a substantial constitutional question is presented, which is not the case here because this mandamus-like complaint did not demonstrate the absence of substantial equality, nor the manner in which the assessment system should be reapplied.  Chief Justice Cappy concurs separately in the result.

Concentric Network Corp. v Commonwealth, 897 A.2d 6 (Pa. Cmwlth. 2006)–unanimous panel, per Simpson, J., holds, inter alia, that tax on Internet service provider does not violate tax uniformity provision even though cable operators and facilities-based telecommunications carriers receive exemptions as public utilities; court applied federal equal protection analysis.

Section 10–Stilp v. Commonwealth, 898 A.2d 36 (Pa. Cmwlth. 4/24/2006): Judge Pellegrini holds for the court that the Auditor General lacks authority to audit the spending accounts of the General Assembly for reasons of the separation-of-powers and that the current legislative auditing system satisfies the requirements of Article VIII, section 10. [It should be mentioned that in footnote 9 of the opinion, Judge Pellegrini cites this website for the content of the Debates of the 1968 Constitutional Convention and notes that other constitutional source material can be found on this website as well.]

Article IX. Local Government

Section 4–Kopco v. Miller, 892 A2d 766 (Pa. 2006): against the background of a state constitutional right to privacy requiring strict construction, the court, per Justice Newman, held that sheriffs are not investigative or law enforcement officers pursuant to the Wiretapping Act and thus may not be trained to conduct wiretaps under the Act.