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Caselaw 2016

Methodological Provisions: Case Law

Miller v. County of Centre, 135 A.3d 233 (Pa. Commw. Ct. 2016): per Simpson, J., an en banc panel held that a district attorney’s office is not a “judicial agency” under the Right To Know Law (RTKL), and therefore is not subject to provisions governing judicial agencies.

Com. v. Derhammer, 134 A.3d 1066 (Pa. Super. 2016): per Bowes, J., the three-panel court, as a matter of first impression, held that the judicial invalidation of statutory sex offender registration requirements did not preclude conviction for failing to comply with registration requirements, because an unconstitutional statute does not repeal the former law.

Article I. Declaration of Rights

Section 1: Inherent Rights of Mankind

KS Development Company, L.P. v. Lower Nazareth Township, 149 A.3d 105 (Pa. Commw. Ct. 2016): per Colins, S.J., the court held that stringent restrictions on apartments in zoning ordinance did not effect a de jure exclusion on apartments in certain districts in violation of substantive due process and that a zoning ordinance that placed intensive restrictions on the manner in which apartments could be developed was not de facto exclusionary.

Pennsylvania State Education Association v. Commonwealth, 148 A.3d 142 (Pa. 2016): per Donohue, J., the Court held that school employees have a constitutionally protected interest under Article 1, Section 1 of the Pennsylvania Constitution in their home addresses and thus, their addresses are exempt from disclosure under the Right To Know Law. (See also State Employees’ Retirement System v.Campbell, — A.3d —-, 2017 WL 836214 (Pa. Commw. Ct. March 3, 2017): per Cosgrove, J., stating that the balancing test stated in PSEA III must be performed before granting RTKL requests).

Thomas v. Kane, 2016 WL 6081868 (Pa. Commw. Ct. October 17, 2016): per Brobson, J., the court held that under Art. 1, Sec. 1 of the Pennsylvania Constitution, Thomas does not have an equitable remedy of a name-clearing hearing under the facts alleged (that he is entitled to a name-clearing hearing simply because he believes that Kane’s alleged false and defamatory statements harmed his reputation).

Section 8: Security from Searches and Seizures

Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016): per Olson, J., the court held that a defendant could not have been deemed to consent to a warrantless blood draw as an exception to the requirement for a search warrant, and that the defendant had standing to claim that his consent to have blood drawn from his body for the purposes of calculating blood alcohol content. This brings Pennsylvania law into compliance with the United States Supreme Court decision Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) (holding that states cannot insist upon intrusive blood test and also impose criminal penalties on the refusal to submit to such a test).

Commonwealth v. Arter, 151 A.3d 149 (Pa. 2016): per Todd, J., the Court held that the exclusionary rule derived from Article I, Section 8 of the Pa. Constitution, and the 4th Amendment of the U.S. Constitution, applies to parole and probation revocation hearings. While the Supreme Court of the United States has declined to extend the exclusionary rule to proceedings other than criminal trial proceedings, the court here held that Article I Section 8 of the Pa. Constitution offers broader protection than the Fourth Amendment, and that after anEdmonds analysis, the appellant was entitled to relief based exclusively under the Pa. Constitution.

Commonwealth v. Katona, — A.3d —-, 2016 WL 7033189 (Pa. Super. December 2, 2016): per Ford Elliot, P.J.E., the court held that a separate finding of probable cause was required for each time that a confidential informant intercepted a wire-tapped conversation with a defendant in the defendant’s home.

Commonwealth v. Simonson, 148 A.3d 792 (Pa. Super. 2016): per Olson, J., the Court held that a gunshot residue test constitutes a reasonable search incident to arrest under both the Fourth Amendment of the United States Constitution and Article 1 Section 8 of the Pennsylvania Constitution.

Chester Housing Authority v. Polaha, 2016 WL 4224910 (Pa. Commw. Ct. August 11, 2016): per Friedman, S.J., solicitor for Chester Township sent a letter to the Authority and requested a list of properties, including names and addresses, where the tenant occupying the dwelling on the property receives Housing Choice Voucher Assistance from the Authority. The court held that the recipients of social services have a right to privacy in their addresses but that the property owners in this case do not qualify as social service recipients and that there is no expectation of privacy in the requested addresses.

Section 9: Rights of the Accused in Criminal Prosecutions

Commonwealth v. Ritz, 153 A.3d 336 (Pa. Super. 2016): per Jenkins, J., the court held that the defendant was entitled to have his plea bargain enforced through specific performance. His plea agreement included that he would be required to register as a sexual offender for 10 years. The court held that the SORNA provision that would have required lifetime registration violates the defendant’s state and federal due process rights by depriving him of the benefit of his plea bargain with the Commonwealth, and is therefore unreasonable and invalid.

Kuren v. Luzerne County, 146 A.3d 715 (Pa. 2016): per Wecht, J., the Court held that a cause of action exists entitling a class of indigent criminal defendants to allege prospective, systemic violations of the right to counsel due to underfunding, and to seek and obtain an injunction forcing a county to provide adequate funding to a public defender’s office, so long as the class action plaintiffs demonstrate the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies of law. This case focused on the standing issue rather than the actual outcome.

Com. v. Rosser, 135 A.3d 1077 (Pa. Super. 2016): per Jenkins, J., an en-banc panel, treating Article 1, Section 9 of the Pennsylvania Constitution and the 6th Amendment as coextensive, held that the 6th Amendment [does not require] prohibits “fishing expeditions” as the theory applies to the Confrontation Clause. In short, the 6th Amendment “does not entitle the defendant to cross-examine a Commonwealth witness on a subject for which the defendant cannot provide a factual foundation.”

Commonwealth v. Schultz, 133 A.3d 294 (Pa. Super. 2016): per Bowes, J., a three-panel court reversed a trial court’s determination that Schultz was not denied counsel at his grand jury testimony and that no attorney-client privilege existed between Attorney Cynthia Baldwin and him. When Schultz, the retired Senior Vice President of Finance and Business for Penn State University, testified, Attorney Cynthia Baldwin, who was counsel for Penn State at the time, did not explicitly state whether she represented Schultz in his capacity as an agent of the university or personally. After eventually being charged and retaining personal counsel, Schultz notified Baldwin that he understood that she represented him during the grand jury testimony and he invoked the attorney-client privilege. Baldwin then testified before the grand jury, and made statements that incriminated Schultz. The Superior Court found that, because of the ambiguity regarding the status of Schultz’s representation by Baldwin, Schultz was constructively without counsel at the investigative grand jury, violating his constitutional right under Article I, Section 9 of the Pennsylvania Constitution. Applying the Mrozek test for determining whether an attorney-client privilege existed, 657 A.2d 997 (Pa. Super. 1995), the court found an attorney-client privilege existed because Schultz, no longer an employee of Penn State at the time he testified, approached Baldwin for legal advice that pertained to the Sandusky investigation only, not corporate business. The court also cited Baldwin’s acknowledgement that she believed no conflict of interest existed as evidence that she was aware of such a potential, and Schultz’s express request to invoke the doctrine. As such, the court quashed the charges for perjury, obstruction of justice, and conspiracy.

Section 10: Initiation of Criminal Proceedings; Twice in Jeopardy; Eminent Domain

Robinson Twp. v. Commonwealth, 147 A.3d 536 (Pa. 2016), per Todd, J., the court held the entirety of Act 13, relating to the oil and gas industry was unconstitutional. The court also held that the act constituted “special legislation” that is forbidden by the Pennsylvania Constitution, and also provisions that allowed for corporations to take private property for a private purpose through eminent domain violated both the Fifth Amendment of the United States Constitution and Article I, sections 1 and 10 of the Pennsylvania Constitution.

Commonwealth v. Ball, 146 A.3d 755 (Pa. 2016): per Wecht, J., the Court held that when a defendant is convicted of a lesser offense than originally charged and appeals that conviction. The constitutional prohibition on double jeopardy bars the Commonwealth from reinstating the implicitly-acquitted greater offense on appeal.

Section 13: Bails, Fines and Punishments

Com. v. Bonner, 135 A.3d 592 (Pa. Super. 2016): per Olson, J., the three-panel court, treating cruel and unusual punishment under Article 1, Section 13 of the Pennsylvania Constitution and the 8th Amendment as coextensive, held that the use of certain juvenile adjudications when calculating an adult defendant’s prior record score to determine the advisory sentencing guideline range does not violate the proportionality principles of the 8th Amendment or Article 1, Section 13 of the Pennsylvania Constitution.

Miller v. State Employees Retirement System, 137 A.3d 674 (Pa. Commw. Ct. 2016): per Covey, J., the Court held that a provision of the Public Employee Pension Forfeiture Act (Act 140) did not violate Article I, Section 13 of the Pennsylvania Constitution. According to the provision, a public employee forfeits his pension if he is convicted or pleads guilty or no defense to any crime related to public office/employment. Kenneth Miller, an appointed Senior Magisterial District Judge, plead guilty to one count of mail fraud resulting from an incident while on assignment in Delaware County. After pleading guilty, the Pennsylvania state Employees Retirement System notified Miller that his pension was forfeited as a consequence of his plea. The Court found the analysis in Scarantino v. Public School Employees’ Retirement Fund. 68 A.3d 375 (Pa. Commw. Ct. 2013) persuasive and upheld the forfeiture and further held that it was not a punishment, constituting an excessive fine, but rather a breach of contract on behalf of the petitioner. Section 17: Ex Post Facto Laws

Taylor v. Pennsylvania State Police of Com., 132 A.3d 590 (Pa. Commw. Ct. 2016): per Jubelirer, J., an en-banc panel overruled the PSP’s preliminary objection to Petitioner’s “Amended Petition for Review in the Nature of a Writ of Mandamus seeking to Compel the [PSP] to Change Petitioner’s Sexual Offender Registration Status in Accordance with the Law Addressed to the Court’s Original Jurisdiction,” in a 6-1 opinion. The court concluded that because of the early stages of the proceedings and because they could not say with certainty whether Pennsylvania Constitution’s Ex Post Facto Clause does not provide more protection than its federal counterpart with regard to the Internet notification provision of SORNA that they must overrule the preliminary objections.

Section 17: Ex Post Facto Laws; Impairment of Contracts

Commonwealth v. Kizak, 148 A.3d 854 (Pa. Super. 2016): per Shogan, J., the Court held that application of an amendment to 75 Pa.C.S. § 3806(b) was not an ex post facto violation when the new law was not applied to events occurring before its enactment, but only to events that occurred after its enactment, and that Appellant had fair notice of the change in the statute, as her crime occurred six weeks after the amendment to the statute was signed into law.

Dougherty v. Pennsylvania State Police of Com., 138 A.3d 152 (Pa. Commw. Ct. 2016): per Cohn Jubelirer, J., the court overruled a demurrer by the Pa. State Police and held that the lengthening of the petitioner’s registration as a sex offender from 10 years to 25 years under the Sexual Offender Registration and Notification Act (SORNA), could potentially violate the Ex Post Facto Clause of the Pa. Constitution. The court held that because the Pa. State Police was not a party to the petitioner’s plea agreement. The petitioner may assert a contract-related claim against the Commonwealth in the court of common pleas. Section 27: Natural Resources and the Public Estate

Section 21: Right to Bear Arms

Firearm Owners Against Crime v. Lower Merion Township, 151 A.3d 1172 (Pa. Commw. Ct. 2016): per McCullough, J., the court held that a local ordinance prohibiting carrying or discharging firearms in a park without a special permit violated Article 1, Section 21 of the Pa. Constitution, (“[the] regulation of firearms is a matter of concern in all of Pennsylvania…and the General Assembly, not city councils, is the proper forum of the imposition of such regulation.” quoting Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996)) and was preempted by the Pennsylvania Uniform Firearms Act (“[n]o county, municipality[,] or township may in any manner regulate the lawful ownership, possession, transfer[,] or transportation of firearms . . .”

Section 27: Natural Resources and the Public Estate

Kretschmann Farm, LLC v. Twp. of New Sewickley, 131 A.3d 1044 (Pa. Commw. Ct. 2016): per Leavitt, J., the three-panel court held that landowner’s challenge to township’s grant of gas utility’s conditional use permit was not pursued in accordance with the procedures established in the Municipalities Planning Code. During the court’s discussion of an ordinance at issue that included that same setback language that was found unconstitutional in Robinson Township, 96 A.3d 1104 (Pa. Commw. Ct. 2014), the court recognized the plurality opinion in Robinson Township as only binding in that specific case.

Brockway Borough Mun. Auth. v. Dep’t of Envtl. Prot., 131 A.3d 578 (Pa. Commw. Ct. 2016): per Leavitt, J., the court used the test established in Payne v. Kassab, 312 A.2d 86 (Pa. Commw. Ct. 1973), to review the municipal authority’s Article 1, Section 27 challenge.

Article II. The Legislature

Section 1: Legislative Power

West Philadelphia Achievement Charter Elementary School v. School District of Philadelphia, 132 A.3d 957 (Pa. 2016): per Saylor, C.J., the court, in a 4-2 decision, struck down the Secretary of Education’s delegation of authority to the School Reform Commission in Philadelphia as violative of the non-delegation rule. A Distress Law in the Public School Code of 1949 is triggered when school districts fail certain budgetary requirements. Upon being triggered, a five-person School Reform Commission (“SRC”) is then created, which had “sweeping powers,” including suspension powers, to help the districts recover. The petitioner charter school challenged the constitutionality of this distress law as a violation of the non-delegation rule because “it gives the SRC unlimited discretion and power to suspend provisions of the School Code without establishing standards or restraints on the use of that power.” The court agreed, and held that the provision of the School Code violated Article 2, Section 1 of the Pennsylvania Constitution because it failed to provide standards and limits to the SRC’s power. Baer, J., joined by Donohue, J., dissented and would have held that the delegation is constitutionally permissible pursuant to Article 1, Section 12 because it was not a delegation of legislative power, but rather a delegation of “the authority to suspend legislation that affects the economic stability of a school district in financial distress.”

Section 5: Qualifications of Members

In re Makhija, 136 A.3d 539 (Pa. Commw. Ct. 2016): per Leavitt J., the court denied a petition to remove the candidate from the ballot in the primary election of April 26, 2016 as a Democratic Party candidate for Representative of the 122nd Legislative District in the Pennsylvania General Assembly after his candidacy was challenged due to his domicile. Objectors contended that the candidate, Neil Makhija, had lost his Pennsylvania domicile when he moved to Massachusetts to attend Harvard Law School, voted in Massachusetts, filed state income tax returns in Massachusetts, and obtained a Massachusetts driver’s license. The court held that to lose one’s domicile, the animus (intent) to change and the factum (act) to change must coincide. The court found that the candidate’s actions were not by choice and that the candidate remained domiciled in Pennsylvania. Article III. Legislation

Article III. Legislation

Section 4: Consideration of Bills

Leach v. Commonwealth, 141 A.3d 426 (Pa. 2016): per Saylor, C.J., holding that Act 192, which established criminal penalties for the theft of metals while also creating a civil avenue to challenge firearms legislation, violated Art. III, Sec. 3 of the Pennsylvania Constitution because any connection to firearms predicated on theft of metal is too indirect and attenuated to pass the single-subject test. This decision takes standing away from gun groups to bring cases against municipalities over their gun-ordinances.

Article IV. The Executive

Section 2: Duties of Governor; Election Procedure; Tie or Contest

Markham v. Wolf, 147 A.3d 1259 (Pa. Commw. Ct. 2016), per Simpson, J., the court held that Gov. Wolf’s executive order that granted direct care workers limited collective bargaining rights violated the confines of a governor’s authority to issue executive order under Shapp v. Butera, 348 A.2d 910, 914 (Pa. Commw. Ct. 1975). Gov. Wolf claimed the executive order was proper under directing subordinate officials the duties of the executive branch, however the court held that the order alters the employment relationship between direct care workers and their patients in the patients’ home.

Article V. The Judiciary

Section 9. Right of Appeal

Commonwealth v. Williams, 151 A.3d 621 (Pa. Super. 2016): per Shogan, J., the court held that the Superior Court is required to docket a pro se notice of appeal despite appellant being represented by counsel because Art. 5, Sec. 9 grants the right of appeal and since a notice of appeal protects a constitutional right, it is thus distinguishable from other filings that require the knowledge and legal strategy of counsel.

Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016): per Todd, J., the Court held that the filing of an appellate brief that abandons all preserved issues in favor of unpreserved issues is ineffective assistance of counsel per se.

Section 10: Judicial Administration

Neyman v. Buckley, 153 A.3d 1010 (Pa. Super. 2016): per Fitzgerald, J., the court held that the principle of comity required recognizing an out-of-state civil union as legal equivalent of marriage for the purpose of dissolution pursuant to the Pennsylvania Divorce Code.

Section 16: Compensation and Retirement of Justices, Judges, and Justices of the Peace

Sprague v. Cortes, 145 A.3d 1136 (Pa. 2016): per curiam, the Court deadlocked as to whether the ballot question about the judicial retirement age is misleading. Justice Baer, granting defendant’s application for summary relief, stated that the ballot question is free of legal impediment and that it is not for the Court to alter it or to remove it from the electorate’s consideration. Justice Wecht, writing in support of granting plaintiff’s application for summary relief, stated that the ballot question before the Court cannot survive judicial scrutiny regardless of the standard under which it is assessed.

Section 18: Suspension, Removal, Discipline and Other Sanctions

In re Sullivan, 135 A.3d 1164 (Pa. Ct. Jud. Disc. 2016): per Panella, J., the court held that former Philadelphia Traffic Court judge Michael J. Sullivan violated Pa. Const. Art. V, § 18(d)(1), prohibiting conduct which brings the judicial office into disrepute and prejudices proper administration of justice, when he contacted fellow judge Kenneth Miller concerning pending cases before Miller’s court. The court held that Sullivan’s conduct violated Rules 2A, 4D, and 8A of the Rules Governing Standards of Conduct of Magisterial District Judges and was an automatic violation of Pa. Const. art. V, § 17(b), which prohibits judges from participating in illegal activities, and violating legal or judicial ethics as prescribed by the Pa. Supreme Court. Article VI. Public Officers

Article VII. Elections

Section 1. Qualifications of Electors

In re Vodvarka, 140 A.3d 639 (Pa. 2016): per Donohue, J., holding that the signature of a registered voter whose name appears in the Statewide Uniform Registry of Electors (SURE) registry may not be stricken from a nominating petition solely because the address set forth on the nominating petition is different from the address at which the signer is currently registered to vote.

Article VIII. Taxation and Finance

Section 1: Uniformity of Taxation

Mount Airy #1, LLC. v. Pa. Dep’t of Revenue, 154 A.3d 268 (Pa. 2016): per Wecht, J., the Court held that the local share assessment set forth in the Pennsylvania Race Horse Development and Gaming Act (4 Pa.C.S. § 1403(c)(2) and (c)(3)) against all licensed casinos’ gross slot-machine revenue was a non-uniform tax under Art. VIII, § 1, and struck those two subsections from the Act stating that the provisions impose grossly unequal local share assessments upon similarly situated slot machine licensees.

RB Alden Corp. v. Commonwealth, 142 A.3d 169 (Pa. Commw. Ct. 2016): per Pellegrini, S.J., Alden Corporation claimed that it owed no Pennsylvania corporate income tax on a $29.9 million capital gain profit that resulted from the sale of part of a partnership interest. Alden Corp. brought its claims under the Tax Reform Code and under the Uniformity Clause of the Pennsylvania Constitution arguing that limiting its net loss carryover deduction to $2 million violates Art. VIII, Sec. 1 because it favors smaller taxpayers based solely on the amount of income earned. The court extended its holding in Nextel Communications of Mid-Atlantic, Inc. v. Commonwealth, 129 A.3d 1 (Pa. Commw. Ct. 2015) and found that the net loss carryover provision contained in Section 401(3)4(c)(1)(A)(1) of the Tax Code is unconstitutional and stated that the tax should be calculated without a cap on the net loss carryover.

Section 2: Exemptions and Special Provisions

Pocono Community Theater v. Monroe County Board of Assessment Appeals, 142 A.3d 110 (Pa. Commw. Ct. 2016): per Leavitt, J., the court reversed a Monroe County Court of Common Pleas ruling that upheld a County Board of Assessment Appeals decision to deny a theater’s application for a real estate tax exemption as non-profit 501(c)(3) corporation. The court held that the theater relieves the government from a burden because it provides benefits to causes the government supports even though the government is not obligated to do so. This satisfies the Pa. Constitution’s test for being a purely public charity set out in Hospital Utilization Project v. Com., 487 A.2d 1306 (Pa. 1985).

Article XI. Amendments

Section 1: Proposal of Amendments by the General Assembly and their Adoption

Costa v. Cortes, 142 A.3d 1004 (Pa. Commw. Ct. 2016): per Brobson, J., the Commonwealth Court granted summary relief to a group of Democratic State Senators (Respondents) in a suit against their Republican colleagues (Petitioners) in which they challenged the legal validity of House Resolution 783 of 2016 (H.R. 783), which purports to remove “Proposed Constitutional Amendment 1” from the April 2016 General Primary ballot and place it on the November 2016 General Election ballot. “Proposed Constitutional Amendment 1” would amend Sec. 16(b) of Art. V of the Pennsylvania Constitution to allow Pennsylvania justices, judges, and magisterial district judges to serve until the last calendar day of the year in which they turn 75. The court held that H.R. 783 was a valid exercise of the General Assembly’s exclusive power under Art. XI, Sec. 1 of the Pa. Constitution, there was no violation of separation of powers, and Art. III, Sec. 9 of the Pa. Constitution does not apply. The court also held that because the bill was a resolution instead of a legislative bill, Art. III, Sec. 3, mandating single-subject content of legislation, does not apply.