Pennsylvania Constitution - Current Summaries of Caselaw
Recent Court Decisions
Berwick Area Landlord Association v. Borough of Berwick, 48 A.3d 524, (Pa.Cmwlth. 2012): per Colins, J., held that an Ordinance enacted by the Borough of Berwick was not preempted by either the Landlord Tenant Act or the criminal code. See Article I, Section 1 infra.
Commonwealth v. Au, 42 A.3d 1002 (Pa. 2012): per Saylor, J., held that, under the Fourth Amendment, a request by a police officer for identification does not make the encounter an unconstitutional investigatory detention. Justice Saylor stated that litigants seeking to make a departure from the deterrence-based rationale of Fourth Amendment law by invoking the independent search-and-seizure jurisprudence under Article I, Section 8 of the Pennsylvania Constitution "must bring this matter into sharp focus in their advocacy." (For this reason, any issues that could have been raised under Article I, Section 8 were not reached by the court.) Justice Baer dissented, and was joined by Justice Todd: but agreed in a footnote that the scope of the decision is limited to a Fourth Amendment analysis (under which issues were raised) because it is up to the advocate to raise the privacy based-interests of Article I, Section 8.
Hoffman Mining Co., Inc. v. Zoning Hearing Board of Adams Township, 32 A.3d 587 (Pa. 2011): the court per McCaffery, J., held that township ordinance requiring set backs for surface mining is not preempted by the Surface Mining Act.
Seitzinger v. Commonwealth, 25 A.3d 1299 (Pa.Cmwlth. 2011): the Pennsylvania Commonwealth Court, per Brobson, J., held that a statute that placed a 20 percent ceiling on contingency fees attorneys could claim when successfully representing a claimant in workers' compensation proceeding did not violate the separation of powers doctrine.
Fross v. County of Allegheny, 20 A.3d 1193 (Pa. 2011): per Castille, C.J., upon a certified question by the Third Circuit, a unanimous court held that Allegheny County residence restrictions upon sexual offenders are preempted by State law under the doctrine of “conflict preemption.”
Freed v. Geisinger Medical Center, 5 A.3d 212 (Pa. 2010): per Todd, J., the Court held that it has authority to sua sponte reconsider and overrule its prior decision in Flanagan v. Labe, 547 Pa. 254, 690 A.2d 183 (1997) wherein it was held that nurses could not give expert testimony on medical causation. Geisinger had filed a petition for reargument asserting that the sua sponte overruling of prior precedent "denied it its due process rights of notice and an opportunity to be heard." Freed had not preserved the issue, but the trial court cited Flanagan in the 1925(a) opinion prepared for appellate review. Castille, C.J., wrote a concurring opinion in which he responded to the dissenting opinion of Justice Saylor. Justices Saylor and Eakin each wrote dissenting opinions in which they disagreed with the Majority that Flanagan is the kind of precedent that should be overruled. Castille noted that reasonable minds can differ on when an issue is properly reached on appeal. With regard to overruling the holding in Flanagan, Castille thought that the complete bar on nurse's testimony was unnecessary to the decision and erroneous.
Kurta v. Borough of Glassport, Slip Copy, 2010 WL 1664907 (W.D.Pa. April 23, 2010)(No. 10-195): per Ambrose, J., the court declined to exercise supplemental jurisdiction over a claim for damages for a violation of Article I, Section 1 of the Pennsylvania Constitution and dismissed the claim without prejudice on the ground that the existence of such a damage claim is a "'novel or complex issue of State law'". Accord, Abraham v. Digugliemo, 2010 W.L. 5060788 (E.D.Pa. 2010).
Commonwealth v. Young, 989 A.2d 920 (Pa.Super. 2010): per Ford-Elliott, J., the panel reaffirmed, in the double jeopardy context, that in the absence of proffered justification for a different result, parallel "state and federal provisions are treated as coextensive." Under the Pennsylvania Rules of Evidence, the Commonwealth may admit evidence of a previous crime as a prior bad act even where the defendant was acquitted in the prior trial; the evidence of prior crimes challenged in this case were confessions by the defendant. Colville, J., dissented but did not discuss this constitutional question.
Fumo v. City of Philadelphia, 972 A.2d 487 (Pa. 2009): per Castille, C.J., the Court held that legislative standing is present only when there is "a discernable and palpable infringement on...authority as legislators" alleged. Applying that standard, the Court upheld standing to challenge a city issuance of gaming license on submerged lands, but held there was no standing to challenge other aspects of city gaming license decisions. The Court also denied taxpayer standing. (McCaffery, J., concurred in result in part).
NRA v. City of Philadelphia, 977 A.2d 78 (Pa.Cmwlth. 2009): per Leadbetter, P.J., the court held that plaintiff gun owners lack standing to challenge three city ordinances regulating firearms in the context of imminent danger, protection from abuse and reporting lost or stolen guns; the court struck down on preemption grounds city ordinances prohibiting possession of assault weapons and banning straw gun purchasing. Accord, NRA v. City of Pittsburgh, 999 A.2d 1256 (Pa.Cmwlth. 6/25/2010).
Nykiel v. Borough of Sharpsburg, Slip Copy, 2009 WL 1549535 (W.D.Pa. June 2, 2009)(No. 08-0813): the court, per Lancaster, C.J., held that there is no private cause of action for money damages for violations of the Pennsylvania Constitution, citing both Commonwealth Court and federal court precedent.
Dillon v. Homeowner's Select, Affinity Insurance Services, Inc., 957 A.2d 772 (Pa.Super 2008): in a matter of first impression, the panel, per Donohue, J., held that the State Equal Rights Amendment (Article I, Section 28) does not create a private cause of action for money damages against a private employer in a claim of gender-based discrimination.
Article I. Declaration of Rights
Section 1: Due Process
MCT Transportation, Inc. v. Philadelphia Parking Authority, 60 A.3d 899 (Pa. Cmwlth. 2013): per Leavitt, J., the court held that Section 5707(b) of the Parking Authority Law was an unconstitutional delegation of legislative power because the General Assembly failed to establish standard for the Parking Authority with regard to setting spending limits and fees in violation of the separation of powers. The court also held that the statute violated due process under the Fourteenth Amendment and Article I, Section 1 of the Pennsylvania Constitution because there is no opportunity for taxicab companies to challenge the fee that they must pay to stay in business, which has the effect of condemning property without a hearing.
Johnson v. Allegheny Intermediate Unit, 59 A.3d 10 (Pa. Cmwlth. 2012): per Pellegrini, J., the court held that the lifetime ban of school employment for those convicted of felony homicide in 24 P.S.C. § 1111(e) as amended in 2011 was not a violation of the ex post facto clause. The court also held, that because Mr. Johnson had been hired when the ban was only a five year ban, and his felony homicide fell outside of the five year window, that his substantive due process rights under Article I, Section 1 of the Pennsylvania Constitution were violated when the lifetime ban was applied to him. Mr. Johnson had an exemplary service record in performing his duties with the Allegheny Intermediate Unit. There was no rational reason given for why applying the lifetime ban to him served a legitimate governmental purpose.
Collura v. City of Philadelphia, 2012 WL 6645532, (E.D. Pa. December 21, 2012)(Civil Action No. 2:12-cv-4398.): following District Court precedent, the court, per DuBois, J., dismisses supplemental jurisdictional claims for damages under Art. I, sections 1, 7 and 8 of the Pennsylvania Constitution.
Robinson Twp. v. Commonwealth, 52 A.3d 463 (Pa.Cmwlth. 2012): per Pellegrini, J., in a challenge to the constitutionality of Act 13, which repealed the Oil and Gas Act and replaced it with a codified statutory framework for regulating oil and gas operations, the Court held that 58 Pa.C.S. § 3304, which allows oil and gas operations in all zoning districts, violates substantive due process under Article I, Section 1 of the Pennsylvania Constitution and under the Fourteenth Amendment to the United States Constitution because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods, and makes irrational classifications. The Court also held unanimously that, because 58 Pa.C.S. § 3215(b)(4) does not give guidance on when subsections are waivable by the Department of Environmental Protection (DEP), there was an unconstitutional delegation to the DEP of policy judgments that are reserved to the General Assembly. The court declared 58 Pa.C.S. § 3304 to be null and void, and enjoins all other parts of the law that would enforce 58 Pa.C.S. § 3304. The court also declared 58 Pa.C.S. § 3215(b)(4) to be null and void. (Brobson, J., filed a dissenting opinion on the holding that there is a violation of substantive due process under Article I, Section 1 of the Pennsylvania Constitution and under the Fourteenth Amendment to the United States Constitution.)
G.V. v. Department of Public Welfare, 52 A.3d 434 (Pa.Cmwlth. 2012): per Covey, J., applied the three part test of Matthews v. Eldridge, 424 U.S. 319 (1976) to appellant's interest in reputation under due process in Article I, Section 1 of the Pennsylvania Constitution. The court finds that, although substantial evidence is the appropriate standard for a finding that child abuse has occurred, clear and convincing evidence is required in order to maintain a name on the ChildLine & Abuse Registry because of the risk of erroneous deprivation of an interest in reputation. (Simpson, J., & Leadbetter, J., dissented.)
Berwick Area Landlord Association v. Borough of Berwick, 48 A.3d 524, (Pa.Cmwlth. June 27, 2012)(No. 766 C.D.2011): per Colins, J., upheld an Ordinance providing for duties and penalties for Owners and Occupants of rental properties for code violations. The ordinance seeks to address the decline in maintenance and safety in rental homes in the Borough to which end the Ordinance increases the powers of the Borough and landlords to control the conduct of tenants. The Berwick Area Landlord Association challenged the Ordinance on the basis that it was preempted by state law, that it violated substantive due process under Article I, Section 1, and that enactment of the Ordinance was not within the Borough's authority under the Borough Code. On the issue of preemption, the court found that the Ordinance was not preempted by the Landlord Tenant Act because it refers to and relies on the Landlord Tenant Act for eviction proceedings. The trial court had struck two provisions that might have been preempted by the Criminal Code, so a preemption analysis here was not necessary. On the issue of substantive due process, the Ordinance was enacted with the purpose of protecting and promoting "the public health, safety and welfare of its citizens" and falls within the police powers of the Borough of Berwick, so it is appropriately reviewed under a rational basis standard. The court found that there is "a real and substantial relation to the intended purpose of promoting the general welfare." There was no violation of substantive due process just because the Ordinance might change how some landlords do business. Finally, the court found that the Ordinance was within the authority of the Borough to enact under the Borough Code.
Balletta v. Spadoni, 47 A.3d 183 (Pa. Cmwlth. 2012): per Simpson, J., holding that Article I, Section 1 of the Pennsylvania Constitution does not give rise to a cause of action for monetary damages for an injury to reputation separate and apart from the claim for defamation provided for in Section 8343 of the Judicial Code and case law. Reputation is a fundamental right protected by state constitutional standards of due process and equal protection, but there is no case law establishing a cause of action for monetary damages for "constitutional defamation." Previous case law finding that Article I, Section 1 was self-executing involved only injunctive relief. The Commonwealth Court declined to apply the Restatement (Second) of Torts § 874A (Tort Liability for Violation of Legislative Provision), since the Supreme Court of Pennsylvania has not yet addressed its application to the State Constitution. McCullough, J., dissenting, states that the court should not have reached the constitutional issue as the case can be decided on narrower grounds.
Caputo v. W.C.A.B., 34 A.3d 908 (Pa.Cmwlth. 2012): a unanimous court, per Leavitt, J., held that the offset against disability for 50% of an individual's Social Security retirement benefit is reasonably related to the legitimate governmental objectives of reducing workers' compensation costs for Pennsylvania employers and encouraging Social Security beneficiaries to participate in the workforce and does not violate Pennsylvania Equal Protection.
Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011): per Justice Baer, the Pennsylvania Supreme Court held that defendant's due process rights were not violated by destruction of evidence that could have been obtained from use of the redial function on the phone in capital murder prosecution. The Court noted from one of its earlier holdings (Commonwealth v. Deans, 610 A.2d 32, 34 (Pa. 1992)) that although centrality of the evidence may be one factor analyzed in state due process violations, such interpretation is not applicable here as the "missing evidence" was not introduced at defendant's trial.
Section 2: Political Powers
Commonwealth of Pennsylvania, Office of Attorney General v. Packer Township and Packer Township Board of Supervisors, 49 A.3d 495, (Pa.Cmwlth. 2012): per Friedman, J., denied the motion for summary judgment made by Packer Township in response to the petition for review filed by the Attorney General of Pennsylvania. The Township had passed an Ordinance restricting the use of sewage sludge on farmland by corporations. The Ordinance was explicitly prohibited by Chapter 3 of the Agricultural Code. The Township invoked Article I, Sections 2 and 25 arguing that Section 2 "establishes an ‘inalienable right of local self-government,'" and that Section 25 "means that ‘this right is not subject to the general government's procedures for altering government or for providing for local government.'" The court rejects this argument on the basis that the Pennsylvania Constitution recognizes and protects the rights of individual citizens, not local governments. Municipal corporations are creatures of the state and only have the powers granted to them by the Legislature, which has supreme power over municipalities.
Section 5: Elections
Applewhite v. Commonwealth, Slip Copy, 2012 WL 4497211 (Pa.Cmwlth. October 2, 2012)(No. 330 M.D. 2012): per Simpson, J., enjoined the portion of the Act 18, which requires voters without ID to cast provisional ballots. The effect of the injunction is that, while voters may still be asked for ID, all voters without ID will be allowed to vote by regular ballot. Judge Simpson narrowly tailored the preliminary injunction to address the concerns raised by the Pennsylvania Supreme Court, which were the failure to comport with the liberal access requirement of the act and voter disenfranchisement.
Applewhite v. Commonwealth, 54 A.3d 1 (Pa. 2012): Per Curiam opinion, vacated the decision by the Commonwealth Court, which had denied a preliminary injunction on the Voter ID Law, and returned the matter to the that court for further fact finding on the new expedited procedures for getting out alternative identification cards for the current election cycle. The court agreed with the Petitioners "that if a statute violates constitutional norms in the short term, a facial challenge may be sustainable even though the statute might validly be enforced at some time in the future." The Court held that if the lower court finds in its predictive judgment that there will be "no voter disenfranchisement", then that court will be "obliged to enter a preliminary injunction." Justice Todd and Justice McCaffery each dissented from sending the case back for more fact finding rather than for immediate issuance of the preliminary injunction.
Applewhite v. Commonwealth, 2012 WL 3332376 (Pa.Cmwlth. July 25, 2012)(No. 330 M.D.2012): per Simpson, J., denying the request for a preliminary injunction on the enforcement of Act 18, the Voter ID Law, by the state pending the resolution of the challenge to the law by Petitioners. The trial court rejected the facial challenge under Article I, Section 5 and Article VII, Sections 1 and 14. The court held that the Petitioners failed to show that in an as applied challenge they would not be able to vote or that there was not some other sufficient remedy short of an injunction. Vacated by: Applewhite v. Commonwealth, 54 A.3d 1 (Pa. 2012) .
Section 6: Trial by Jury
Commonwealth v. Real Property and Improvements at 2338 N. Beechwood Street Philadelphia, PA 19132, --- A.3d ---, 2013 WL 1360084 (Pa.Cmwlth. April 5, 2013)(No. 631 C.D. 2012): per Cohn Jubelirer, J., the court held that Rule 1007.1 of the Pennsylvania Rules of Civil Procedure concerning waiver of a jury trial does not apply where due process concerns are implicated by a quasi-criminal proceeding under the Controlled Substances Forfeiture Act when claimant's personal residence could be forfeited. Claimant had not been convicted in any criminal proceeding with regard to drug arrests made at the property, and was not informed of her right to a jury trial under Article I, Section 6 in an in rem proceeding pursuant to the Forfeiture Act. The trial court had held that she waived that right under the Rules of Civil Procedure. The court vacated and remanded based on subsequent precedent that was made by the court concerning the quasi-criminal nature of forfeiture proceedings. Judge Simpson concurred in the result only. Judge Pellegrini wrote a concurring opinion in which he listed other rights that a person facing forfieture of property has before the hearing.
Commonwealth v. Hunsberger, 58 A.3d 32 (Pa. 2012): per McCaffery, J., the court held that where the defendant has consulted with counsel about proceedings, wherein the defendant is not present at the sidebar questioning of venirepersons, there is an adequate basis on which to conclude that the right of the defendant to be present for the jury selection process has not been compromised.
Section 7: Free Expression
DePaul v. Commonwealth et al., 969 A.2d 536 (Pa. 2009): per Castille, .J., the Court held Section 1513 of the Pennsylvania Race Horse Development and Gaming Act (4 Pa.C.S. § 1513), which imposes an absolute ban on political contributions on persons affiliated with licensed gaming in Pennsylvania, unconstitutional under Article I, Section 7 to the extent that it prohibits contributions of any amount. (McCaffery, J. dissented).
Section 8: Search and Seizure
Commonwealth v. Dunnavant, --- A.3d ---, 2013 WL 696500 (Pa. Super. February 27, 2013)(No. 1046 WDA 2012): per Shogan, J., the court upheld the order granted the suppression motion of the defendant with regard to silent video stills taken when a confidential informant was in the defendant's home. These video stills of the inside of the home were obtained without a warrant and therefore, were in violation of the right to privacy in the home and in depictions of the home under both the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution.
Commonwealth v. Henderson, 47 A.3d 797 (Pa. 2012): per Saylor, J., the Court held that the independent police team requirement for application of Pennsylvania's version of the independent source doctrine should be limited to situations where it would prevent the police "from exploiting their own willful misconduct." Absent such malfeasance, the test of Murray v. United States, 487 U.S. 533 (1988) will strike the best balance between privacy under Article I, Section 8 of the Pennsylvania Constitution and the needs of law enforcement. The independent source doctrine is an exception to the exclusionary rule where evidence seized by police under circumstances that would otherwise violate a constitutional right will be admissible "if the prosecution can demonstrate that the evidence in question was procured from an independent origin[.]" Commonwealth v. Melendez, 676 A.2d 226, 332 (Pa. 1996). Chief Justice Castile wrote a concurring opinion in Henderson praising the majority opinion for reigning in "the broad state constitutional dictum" of Melendez, which had limited the independent source doctrine to situations where the second investigative is "truly independent" of the first investigative team. Justice Todd wrote a concurring opinion in which she concurred in the result, but criticized the majority's reasoning for restricting privacy protection from unlawful intrusion in a way not contemplated by the framers of Article 1, Section 8.
Commonwealth v. Alexander, 16 A.3d 1152 (Pa.Super. 2011): per Lazarus, J., the court en banc held that the trial court was without legal authority to order, as a condition of probation or parole, that defendant be subjected to random, warrantless searches of his residence, and that a search is not valid without some level of reasonable suspicion.
Commonwealth v. Wilson, 11 A.3d 519 (Pa.Super. 2010): per Panella, J., the court en banc held that Article. I, Section 8 does not provide greater protections than the Fourth Amendment in the context of probation conditions concerning searches. (Ford Elliot, P.J. concurred in result).
Commonwealth v. Benson, 10 A.3d 1268 (Pa.Super. 2010): per Freedberg, J., the unanimous panel affirmed a denial of a motion to suppress phone records because a person "has no legitimate expectation of privacy under either the United States Constitution or the Pennsylvania Constitution in the cellular telephone records for a telephone used by him but owned by a third party."
Commonwealth v. Taggart, 997 A.2d 1189 (Pa.Super. 2010): per Donohue, J., the panel held that unprovoked flight by itself is insufficient to satisfy reasonable suspicion and therefore evidence seized as a result of a search premised on flight alone must be suppressed; in the case at issue, however, a second flight plus supporting evidence provided reasonable suspicion.
Commonwealth v. Basking, 970 A.2d 1181 (Pa.Super. 2009): applying a full Edmunds analysis, the panel, per Allen, J., adopted the federal the apparent authority exception to the warrant requirement and held that the rights secured by Article I, Section 8 are no greater than those provided under the Fourth Amendment.
Commonwealth v Sam, 952 A.2d 565 (Pa. 2008): per Castille, C.J., the Court held that Article I, Section 8 does not provide a greater right for a mentally incompetent inmate to refuse antipsychotic medication for the purpose of rendering the inmate competent to participate in post-sentencing proceedings than did the parallel federal right determined by the United States Supreme Court in Sell v. United States, 539 U.S. 166 (2003). (Baer, J. & Todd, J., dissented).
Commonwealth v. Grahame, 947 A.2d 762 (Pa.Super. 2008): in the course of an analysis of the federal Fourth Amendment, a divided panel, per Klein, J. rejected an analogous State Constitutional claim by stating that an expansion of rights under the State Constitution over applicable federal rights will only be found "where there is a compelling reason to do so", quoting Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985); this standard appears to be in tension with the four-part analytical framework utilized in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) and with fair consistency since then in State Supreme Court opinions. The Pennsylvania Supreme Court subsequently reversed, in an opinion by Justice Orie Melvin: Commonwealth v. Grahame, 7 A.3d 810 (Pa. 2010), on federal Fourth Amendment grounds. The majority opinion noted that an Article I, Section 8 analysis follows the Terry v. Ohio analysis in stop and frisk cases. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. (1968).
Section 9: Confrontation, Self-incrimination and Due Process
Commonwealth v. Hunsberger, 58 A.3d 32 (Pa. 2012): See Article I, Section 6, above.
Commonwealth v. Moto, 23 A.3d 989 (Pa. 2011): in a matter of first impression, the Court, per McCaffery, J., denied a petition to expunge a criminal record; specifically in this case, a nolle prosse of charges, ten years after the incident occurred, is not enough to justify granting expungement of arrest record for that crime. The Court adopted as the means of deciding petitions to expunge the records of all arrests which are terminated without convictions except in cases of acquittals, the Wexler balancing test, which considers factors, such as the strength of the Commonwealth's case, the petitioner's age, criminal record and employment history, length of time that has elapsed between arrest and petition to expunge, and specific adverse consequences petitioner may endure should expungement be denied. (Saylor, J., joined by Castille, C.J. and Orie Melvin, J. dissented).
Commonwealth v. Atkinson, 987 A.2d 743 (Pa.Super. 2009): per Freedberg, J., the panel reaffirmed that Confrontation Clause protections are the same under the Pennsylvania and federal Constitutions and held that the use of video testimony at a suppression hearing violated both constitutions in the absence of case-specific findings of necessity; however, the court finds harmless error in regard to the Confrontation violations.
Section 10: Double Jeopardy and Just Compensation
Miller v. Pocono Ranch Lands Property Owners, 2012 WL 6803269 (M.D. Pa. December 20, 2012)( Civil Action No. 3:11-0317.): report and recommendation per Mannion, Magistrate Judge, that takings claim is not ripe where plaintiff has failed to allege that she sought, and has been denied, compensation under the Eminent Domain Code.
Strawn v. Com., Dept. of Transp., 17 A.3d 320 (Pa. 2011): per Todd, J., the Court held that imposition of multiple operating privilege suspensions for driver's violations of multiple Motor Vehicle Code provisions was appropriate, even though the violations were committed during a single criminal episode.
Section 11: Courts to be Open; Suits Against the Commonwealth
Friends of Pennsylvania Leadership Charter School v. Chester County Board of Assessment Appeals, 61 A.3d 354 (Pa.Cmwlth. 2013): per Jubelirer, J., the court held that the retroactive application of 24 P.S.C. § 1722 A(e)(3) would be a violation of Article I, Section 11 because it would impermissibly eliminate a vested right in a tax lein on property that had already been accrued by reversing the obligation to pay those real estate taxes that had already been paid.
Section 13: Bails, Fines and Punishments
Commonwealth v. Batts, --- A.3d ---, 2013 WL 1200252 (March 26, 2013)(N0. 79 MAP 2009): per Saylor, J., the Court held that, juvenile offenders who had a non-final judgement of sentence for murder as off the issuance of Miller v. Alabama, are subject to the mandatory maximum sentence of life imprisonment under 18 Pa.C.S. § 1102(a) with the minimum sentence to be determined by the common pleas court upon resentencing. Juveniles who were convicted on or after the date when Miller was decided are subject to higher mandatory minimum standards and the possibility of life without parole under 18 Pa.C.S. § 1102.1, upon evaluation by the sentencing court using the guidelines identified in Miller. The Court also held that life without parole for a juvenile offender was not cruel and unusual punishment under Article I, Section 13 of the Pennsylvania Constitution. Justice Bear wrote a concurring opinion in which he expressed his belief that for the purposes of uniformity in sentencing, the trial court should apply the new statue upon resentencing for appellants whose conviction pre-dated Miller.
Section 17: Ex Post Facto Laws
Johnson v. Allegheny Intermediate Unit, 59 A.3d 10 (Pa. Cmwlth. 2012): see Article I, Setion 1 above.
Berkhimer v. State Employees' Retirement Board, 60 A. 3d 873 (Pa.Cmwlth 2013): per McCullough, J., the court rejected claims made by petitioner, a former judge who had been subject to disciplinary action for using improper language with staff that included sexual connotations, that the forfeiture of his pension was an unconstitutional impairment of his retirement contract under Article I. Section 17 of the Pennsylvania Constitution, and that the forfeiture was a violation of Article V, Section 16(a) prohibiting diminution of judicial salaries during a judge's term in office. There was no impairment of a contract because, when a public official begins each new term in office, he or she renews the pension contract to include the new term in public service. The renewal of the contract after the 1993 amendments relating to forfeiture put all earnings at risk. Additionally, there was no ex post facto violation of Article I, Section 17 due to the forfeiture. Finally, there was no impermissible diminution of judicial salary, because the forfeiture of a pension takes place after the term in office.
Commonwealth v. Allshouse, 36 A.3d 163 (Pa. 2012): per Todd, J., the Court noted that the ex post facto clauses of the United States and Pennsylvania Constitutions are "virtually identical in language" and comparable in standards applied to determine violations; Saylor, J., joined by Castille, C.J., concurred.
Section 21: Right to Bear Arms
District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008): the Court, per Scalia, J., interpreted the federal Second Amendment as creating an individual right to bear arms for self-defense, relying in part on the wording and interpretation of Article I, Section 21, originally Pa. Declaration of Rights § XIII (Stevens, Souter & Ginsburg, JJ., joined by Breyer, J., dissented).
Mcdonald v. Chicago, 130 S.Ct. 3020 (2010): the Court held that the federal Second Amendment "right to keep and bear arms for the purpose of self-defense" is fully applicable to the States; however, the majority could not agree on what provision of the Fourteenth Amendment applied.
Section 26: No Discrimination by Commonwealth and Its Political Subdivisions
Pocono Mountain Charter School v. Pocono Mountain School District, --- F.Supp.2d ---, 2012 WL 5463132 (M.D. Pa. November 8, 2012)(Civil Action No. 3:CV 101171): per Caputo, J., allowed the claim for equal protection under Article I, Section 26 to proceed, but denied the claim of interference with the right to worship under Article I, Section 3 because the charter school sought to assert the constitutional rights of individuals who were not plaintiffs in this litigation. In allowing the equal protection claim to proceed, the court said that the analysis is the same as that for claims made under the Fourteenth Amendment and that under the Pennsylvania Constitution, the right to public education and religious freedom are fundamental rights.
Section 27: Environmental Protection
Board of Supervisors of Springfield Tp. v. Pennsylvania Public Utility Comm., 41 A.3d 142 (Pa.Cmwlth. 2012): per Pellegrini, J., the court affirmed the order of the Commission permitting construction of a high-voltage electric transmission line, rejecting the Township's argument under Art. I, section 27 as improperly formulated; Leavitt, J., dissented on the Section 27 issue.
Air -Serv Group, LLC. v. Commonwealth, 18 A.3d 448 (Pa.Cmwlth. 2011): per McCullough, J., the court held that coin operated air vending machines are not private personal property subject to the sales tax, because under Article I, Section 27 of the Pennsylvania Constitution, “Pennsylvania’s public natural resources are the common property of all the people .”
Pennsbury Village Associates v. McIntyre, 11 A.3d 906 (Pa. 2011): per Eakin, J., the Court unanimously held that the Environmental Immunity Act does not immunize actions, including speech and petitioning activity that would otherwise be protected, when such actions are undertaken to defeat the terms of a settlement agreement the party has previously entered into.
Belden & Blake Corp. v. Commonwealth, 969 A.2d 528 (Pa. 2009): per Eakin, J., the Court held that an obligation under Article I, Section 27 as trustee of public resources does not grant to the Department of Conservation and Natural Resources the authority to impose a coordination agreement on an owner of mineral rights inside a state park. (Saylor J., joined by Todd, J., dissented).
Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission, 950 A.2d 1120 (Pa.Cmwlth. 2008): per Simpson, J., the court denied preliminary objections to standing of plaintiffs to challenge management of State deer herd, apparently based in part on Article I, Section 27, granting legal interest to citizens in State wildlife.
Section 28: The Equal Rights Amendment
Weaver v. Harpster, 975 A.2d 555 (Pa. 2009): per Baer, J., the Court held that Section 28 does not create a common law claim under the public-policy exception to the at-will employment doctrine for sex discrimination by a private employer not covered by the Pennsylvania Human Relations Act. (Todd, J. joined by Castille, C.J. dissented).
Article II. The Legislature
Section 1: Delegation
MCT Transportation, Inc. v. Philadelphia Parking Authority, 60 A.3d 899 (Pa. Cmwlth. 2013): see Article I, Section 1 above.
Robinson Twp. v. Commonwealth, 52 A.3d 463 (Pa.Cmwlth. 2012): See Article I, Section 1 above for discussion of unconstitutional delegation of policy judgement.
Pennsylvania Builders Association v. Department of Labor and Industry, 4 A.3d 215 (Pa.Cmwlth. 2010): per Butler, J., the court held that the adoption by the Department of the 2009 Code of the International Code Council to amend Pennsylvania’s Uniform Construction Code did not violate the delegation doctrine, nor did it constitute an unconstitutional exercise of legislative power.
Association of Settlement Companies v. Department of Banking, 977 A.2d 1257 (Pa.Cmwlth. 2009): per Cohn Jubelirer, J., the court overruled preliminary objections to various constitutional challenges to the Debt Management Services Act; the case will proceed (Smith-Ribner, J., dissented on ripeness grounds).
Section 2: Legislative Vacancies
Fagan v. Smith, 41 A.3d 816 (Pa. 2012): the Court, Per Curiam, granted original jurisdiction under King's Bench Power and issued a mandamus ordering the Speaker of the Pennsylvania House of Representatives to issue writs of election for special elections to fill vacancies in six Legislative Districts despite apparent statutory discretion to delay such special elections during the redistricting process; Saylor, J., joined by Eakin, J., and Orie Melvin, J., dissented; Eakin, J., joined by Orie Melvin, J., dissented.
Section 7: Ineligibility of Criminal Convictions
Bracey v. Helfrich, Slip Copy (Ct. of Comm. Pleas, York Co. August 1, 2012)(No. 2011-SU-5077-47): per Linebaugh, J., the Court found that a in-state conviction for possession of LSD with the intent to distribute, graded as a felony in Pennsylvania, was not an infamous crime for the purposes of Article II, Section 7. The Court applied the more probing analysis of Commonwealth ex rel. Kearney v. Rambler, 32 A.3d 658 (Pa. 2011) to a conviction for an in-state felony, because the Court found that a drug crime was not of the same sort of offense that was in the contemplation of the framers of the State Constitution or the State Supreme Court in Comm. v. Shaver, Bright.E.C. 134, 3 Watts & Serg. 338, 342 (Pa. 1842).
Commonwealth ex rel. Kearney v. Rambler, 32 A.3d 658 (Pa. 2011): per Saylor J., the Court held that a conviction for "Mailing threatening communications," a federal felony offense, is an infamous crime for the purposes of Article II, Section 7. In evaluating state constitutional implications in Pennsylvania for felony convictions from other states or a federal jurisdiction, there can be a more probing inquiry on the question of constitutional infamy. "[I]t is appropriate to consider the character of the underlying conduct. . .by taking into consideration whether public officials who engage in such conduct may still command public confidence as concerns their honesty, decency, and good moral character." The Court still defers to the legislature with regard to the classification of in-state felonies, which are all still considered to be infamous crimes.
Commonwealth ex rel. Pennsylvania Attorney General Corbett v. Griffin, 946 A.2d 668 (Pa. 2008): per Saylor, J., the Court held that all felonies qualify as "infamous crimes" for purposes of removal from office in a quo warranto proceeding and that this section applies to judges, including conduct that occurred prior to the beginning of the judge's term of office; the holdings are in the nature of reaffirmations of prior caselaw, but Justice Saylor's opinion reconsidered such issues.
Section 8: Compensation
Stilp v. Commonwealth, 974 A.2d 491 (Pa. 2009): per Todd, J., the Court affirmed dismissal of challenge to legislative cost of living adjustments, expense allowances and other benefits as not beyond the "salary and mileage" to which Section 8 limits legislative compensation (Saylor, J., concurred in the result).
Section 16: Requirements of Legislative Districts
Holt v. 2011 Legislative Reapportionment Commission, 38 A.3d 711 (Pa. 2012): in an opinion accompanying an order issued 1/25/2012 (see Art. II, Section 17(e) below), the Court, per Castille, C.J., held that the 2011 Final Reapportionment is contrary to law because it contains "numerous political subdivision splits that are not absolutely necessary" and that the Commission could have achieved greater fidelity to the Art. II, Section 16 mandates of compactness, continguity, and integrity of political subdivisions; Saylor, J., filed a concurring and dissenting opinion; Eakin, J., filed a concurring and dissenting opinion; Orie Melvin, J., filed a concurring and dissenting opinion.
Section 17 (e): Legislative Reapportionment Commission
Holt v. 2011 Legislative Reapportionment Commission, 38 A.3d 711 (Pa. 2012): by per curiam order, the Court held that the final 2011 Legislative Reapportionment Plan is contrary to law and shall be remanded to the Commission; Saylor, J., joined by Eakin and Orie Melvin, JJ., dissented. An opinion is to follow.
Article III. Legislation
Section 1: Passage of Laws
Marcavage v. Rendell, 936 A.2d 188 (Pa. Cmwlth. 2007): the panel, per Colins, J., struck down an amendment to the Ethnic Intimidation Statute, 18 Pa.C.S. §2710, on the ground that the Act amending the section changed its original purpose during the course of legislation, in violation of Article III, Section 1. On July 23, 2008, the Pennsylvania Supreme Court, per curiam order, affirmed the order of the Commonwealth Court in Marcavage and adopted the opinion by Judge Colins in that case as the opinion of the Supreme Court.
Section 3: Single Subject Rule
Sernovitz v. Dershaw, 57 A.3d 1254 (Pa.Super. 2012): per Donahue, J., the Court struck four provisions from Act 47 of 1988, three of which related to a ban on wrongful birth lawsuits and one of which related to substitute bail commissioners in Philadelphia. The wrongful birth provisions were challenged as unconstitutional in violation of Article III, Sections 1, 3, 4 and 6 of the Pennsylvania Constitution. The court only reached the Article III, Section 3 challenge and found that the provisions struck were not germane to the single over-arching subject of the bill, which was "post-trial matters in criminal cases," or helped to carry out that purpose. A concurring statement by Ford Elliot, P.J.E., notes that "wrongful life" has never been recognized as a cause of action in Pennsylvania, regardless of the statute.
Pennsylvania State Association of Jury Commissioners v. Commonwealth, (Pa. March 14, 2013): per Baer, J., reversed the Commonwealth Court and held that the law allowing counties to eliminate the office of jury commissioner was unconstitutional because it violated the single-subject rule of Article III, Section 3 of the Pennsylvania Constitution. The law had been added as an amendment to a bill relating to the sale of personal property by electronic auction and surplus farm equipment. The Court found that, although the label of "powers of county commissioners" was not overbroad, the elimination of the office of jury commissioner by county commissioners was a completely unrelated legislative act.
Commonwealth v. Neiman, 5 A.3d 353 (Pa.Super. 2010): the court, per Ford Elliott, P.J., held that a bill containing Megan’s Law and Deficiency Judgment Act amendments violated the single subject rule of Article III, Section 3, but that the proper relief is to preserve Megan’s Law by striking provisions of bill not germane to regulation of sexual predators.
Spahn v. Zoning Board of Adjustment, 977 A.2d 1132 (Pa. 2009): the Court, per Castille, J., upheld the State legislature's amendment of the First Class City Home Rule Act limiting standing in zoning appeals to remove taxpayer standing that had been granted by Philadelphia's Zoning Ordinance; the Court held that access to the courts is not a an issue of purely local concern, but a matter of statewide concern, and that the amendment did not violate the single subject rule.
Barrel of Monkeys, LLC v. Allegheny County, 39 A.3d 559 (Pa. Cmwlth. 2012): the court, per Simpson, J., held that the Allegheny County drink tax Ordinance is valid against challenges that the underlying state statutory authorization violated the single subject rule of Art. III, section 3, the tax violated the uniformity clause of Art. VIII, section 1, and the Ordinance passed through a vote manifesting a conflict of interest.
Section 24: Payment of Public Monies
Council 13, American Federation of State, County and Municipal Employees v. Commonwealth, 986 A.2d 63 (Pa. 2009): per Castille, C.J., the Court held that the federal Fair Labor Standards Act preempted Article III, Section 24 of the Pennsylvania Constitution, thus permitting the payment of wages to covered State employees despite a budget impasse that precludes the payment of wages through appropriation made by law (Greenspan, J. concurred in result and Saylor, J. concurred in part and dissented in part).
Section 27: Changes in Term of Office or Salary Prohibited
Meade v. City of Philadelphia, --- A.3d ---, 2013 WL 1136833 (Pa.Cmwlth. March 20, 2013): per McGinley, J., the court held that Appellees Nigro and Goldsmith, appointed members of the Board of the Revision of Taxes, were public officers within the meaning of Article III, Section 27 of the Pennsylvania Constitution because their duties were set by statute, they were appointed for a fixed term, their duties were quasi-judicial in character, and the Board's services are an essential part of the taxation system for real estate. As a result, the diminution of the compensation of Nigro and Goldsmith in the middle of their term was in violation of Article III, Section 27.
Buckwalter v. Borough of Phoenixville, 985 A.2d 728 (Pa. 2009): the Court, per Eakin, J., held that a municipal ordinance constitutes "law" for purposes of Section 27, overruling Baldwin v. City of Philadelphia, 99 Pa. 164 (1881), and therefore a borough ordinance eliminating salary for borough council members is unconstitutional (Saylor, J. concurred).
Section 31: Prohibited Delegation
International Ass'n of Fire Fighters, Local 22, AFL-CIO v. Pennsylvania Labor Relations Bd., 35 A.3d 833 (Pa.Cmwlth. 2012): the court, per McCullough, J., held that Fire Service Paramedics are not firefighters for purposes of Act 111; in dissent, Pellegrini, J., would hold that the question of who is a firefighter is a constitutional issue under Art. III, section 31, the Board lacks jurisdiction.
Lancaster County v. Pa. Labor Relations Bd., 35 A.3d 83 (Pa.Cmwlth. 2012): the court, per Pellegrini J., held that county's transfer of funds did not require a legislative act so as to render arbitration award "advisory" as improper delegation under Art. III, Section 31.
Section 32: Special Legislation
Williams v. Corbett, --- F. Supp. 2d ---, 2012 WL 6808575 (M.D. Pa. January 9, 2013): court, per Jones III, J., invokes abstention pursuant to Burford v. Sun Oil, Co., to refrain from deciding plaintiffs' "special laws" claim because state law review is available and the challenge to Pennsylvania's Financially Distressed Municipalities Act involves "difficult questions" of purely state law or policy.
West Mifflin Area School Dist. v. Zahorchak, 4 A.3d 1042 (Pa. 2010): the Court, per Saylor, J., unanimously held, as unconstitutional special legislation, legislation granting authority to the Secretary of Education to deal with the Duquesne City School District.
Article IV. The Executive
Section 4.1: Attorney General
Robinson Twp., Washington Co. v. Commonwealth, 2012 WL 1429454 (Not selected for publication in the Atlantic Reporter) (Pa.Cmwlth. May 21, 2012)(No. 284 M.D.2012): per Quigley, J., the Court denied two petitions to intervene with regard to an action challenging the constitutionality of Act 13 under the Pennsylvania constitution. With regard to the petition by two Pennsylvania legislators, the Court held that they did not have they have no legally enforceable interest as required by Rule 2327(4) because legislative intent will be addressed by the court as necessary as a result of the Statutory Construction Act of 1972 and traditional methods of statutory construction, even if the Attorney General chooses not to defend the Act based on statutory intent. With regard to the petition from members of the oil and gas industry, although they have a legally enforceable interest in the form of land ownership and leaseholds, these interest have no bearing on the Constitutionality of the Act and this interest is adequately represented by the Attorney General, whose duty it is to defend the act.
Section 9: Pardoning Power; Board of Pardons
Commonwealth v. Michael, 56 A.3d 899 (Pa. 2012): in a Per Curiam decision, the Court held that the Court of Common Pleas and the Commonwealth Court were without authority under Section 9545(c) of the Post Conviction Relief Act to enter a stay of execution in order to allow Applicant more time for evaluation for medical experts and interviews with corrections officials in order to ensure a more complete hearing before the Board of Parsons. There is no Constitutional right to clemency, so procedural due process is very limited. Absent arbitrary and capricious conduct in the way the clemency process is being administered, intervention by the Court would be a violation of the separation of powers doctrine.
Section 16: Partial Disapproval of Appropriation Bills
Jubelirer v. Rendell, 953 A.2d 514 (Pa. 2008): the Court, per Castille, C.J., seemed to confirm that the Edmunds four-factor analysis will only be used in State constitutional analysis of provisions parallel to those found in the United States Constitution. On the merits of the case the Court held that Article IV, Section 16 does not permit the Governor to veto language defining a specific appropriation unless the Governor vetoes the funding itself. [Thanks to Donald Marritz for the heads up.] Some of the language concerning Edmunds follows: "[W]e have been precise in explaining that it is when a matter calls for this kind of comparative constitutional analysis that we turn to the four Edmunds factors for guidance.....In contrast, this Court is sometimes presented with cases requiring us to interpret a provision of the Pennsylvania Constitution that lacks a counterpart in the U.S. Constitution. In such cases, because there is no federal constitutional text or federal caselaw to consider, we have not engaged in the four-factor analysis set forth in Edmunds."
Article V. The Judiciary
Section 1: Separation of powers
Pennsylvania State Association of County Commissioners v. Commonwealth, 52 A.3d 1213 (Pa 2012): per Castille, C.J., held that increased inter-branch cooperation since the Interim Report and indication of further cooperative efforts on the part of the General Assembly "for further evolution toward a better, administratively unified judicial system" warranted the Courts taking no further action to require any further specific legislative action. The Court denied the motion for mandamus relief to enforce the Court's order of July 26, 1996 to compel funding of the unified judicial system by the General Assembly and to implement the Report of the Master. The Court relinquished jurisdiction over this issue.
Seitzinger v. Com., 25 A.3d 1299 (Pa.Cmwlth. 2011): the Pennsylvania Commonwealth Court, per Brobson, J., held that a statute that placed a 20 percent ceiling on contingency fees attorneys could claim when successfully representing a claimant in workers' compensation proceeding did not violate the separation of powers doctrine.
Jefferson County Court Appointed Employees Assoc. v. Pa. Labor Relations Board, 985 A.2d 697 (Pa. 2009): per Baer, J., the Court held that the County violated judiciary's constitutional right to hire, fire and supervise its employees when County Salary Board, cost-cutting move, eliminated five trial court employee positions. (Eakin, J., dissented).
Hess v. County of Lehigh, 2009 WL 2461734 (E.D.Pa. August, 10 2009): per Golden, J., the court dismissed a federal due process claim by County Probation Officer in part because collective bargaining agreements with employees of Pennsylvania courts do not grant property interests because they are not enforceable under the separation of powers; the discharge of a judicial employee is an inherent judicial power under Pennsylvania law.
Washington County v. Washington Court Association of Professional Employees, AFL-CIO, 948 A2d 271 (Pa.Cmwlth. 2008): the panel, per Smith-Ribner, upheld an arbitration award increasing the paid work hours for probation officers; the award does not implicate the ability of the court below to carry out its constitutional functions. (Kelly, J. dissented).
Section 10: Judicial Administration
Commonwealth v. McMullen, 961 A.2d 842 (Pa. 2008): per Eakin, J., the Court held that 42 PaC.S. Section 4136(a) (granting a right to a jury trial for indirect contempt for alleged violation of a restraining order or injunction) was unconstitutional as an infringement of the Pennsylvania Supreme Court's exclusive authority to prescribe rules of procedure; the Court also held that Section 4136(b), which limited the punishment for indirect contempt to 15 days in jail, was unconstitutional as an infringement of the inherent authority of the courts of Pennsylvania. (Saylor, J. dissented in part).
Section 10(a): Supervisory Authority
Joseph v. The Scranton Times, 987 A.2d 633 (Pa. 2009): pursuant to its supervisory power over lower courts, in a case in which the Court had assumed plenary jurisdiction, the Pennsylvania Supreme Court ordered a new trial because of the appearance of judicial impropriety in the first trial; it bears noting that the order was not issued pursuant to the federal due process standard announced in Caperton v. Massey Coal Co., 690 S.E.2d 322 (W.Va. 2009), but pursuant to the Pennsylvania Constitution.
Section 10(c): Rule-making Authority
City of Pittsburgh v. Silver, 50 A.3d 296 (Cmwlth.Ct. 2012): per Pellegrini, J., held that the Office of Open Records (OOR) does not have jurisdiction under the Right-to-Know Law (RTKL) to compel disclosure of documents relating to City of Pittsburgh settlement negotiations because such negotiations are efforts to settle litigation, and litigation falls under the sole jurisdiction of the Supreme Court over the practice of law under Article V, Section 10(c). Any provision of the RTKL that purports to compel disclosure of information related to the representation of a client, which is regulated by the Supreme Court, is an unconstitutional infringement on the Court's exercise of authority under the State Constitution. Covey, J., filed a concurring and dissenting opinion in which he agrees that the materials were not subject to disclosure, but bases this on the long-standing public policy against disclosing documents relating to settlement agreements rather than holding that the OOR lacks jurisdiction. Simpson, J. and Brobson, J. dissented but did not file opinions.
Gillard v. AIG Insurance Company, 15 A.3d 44 (Pa. 2011): the Court, per Saylor, J., interpreting Section 5928 of the Judicial Code, held that the attorney-client privilege operates in a two-way fashion to protect client-attorney or attorney-client communications; the majority opinion noted that under "its rule-making authority" pursuant to the Pennsylvania Constitution (presumably Article V, Section 10(c)), the Pennsylvania Supreme Court maintains a role in determining the appropriate scope of testimonial privileges, but observed that the respective authority of the legislative and judicial branches in this area need not be addressed in this case. (Eakin, J. and McCaffery, J. dissented separately).
N.-Cent. Pennsylvania Trial Lawyers Ass'n v. Weaver, 827 A.2d 550 (Pa. Cmwlth. 2003): per Smith-Ribner, J., the Pennsylvania Commonwealth Court held that a provision of Act 127, which purported to alter the rules relating to venue in medical professional liability actions, was an unconstitutional exercise of legislative procedural rule-making power. The court noted that, in the absence of a countervailing constitutional provision such as Article I, Section 11 authorizing the legislature to act in regard to venue in a particular area, the matter is committed to the exclusive authority of the Supreme Court under Article V, Section 10(c) of the Pennsylvania Constitution. Judge Pellegrini concurred and dissented in part, on the ground that Act 127 violated the single-subject rule, and Judge Leadbetter joined in the dissent on the ground that the venue provision did not violate the separation of powers constitutional provision giving exclusive power to the Supreme Court to prescribe general procedural rules governing operation of courts. The dissenters left open the question as to whether the General Assembly has the power to create venue provisions for a particular class of litigation.
Section 13(b): Vacancy Appointment by the Governor
Otter v. Cortés, 969 A.2d 1276 (Pa. Cmwlth. 2009): the panel, per Leavitt, S.J., applied the ten-month rule for judicial vacancies strictly and refused to follow the single judge opinion in Brady v. Cortes, 872 A.2d 170 (Pa.Cmwlth. 2005), which had affirmed a per curiam order that allowed some vacancies to be filled even though they less than ten months before the next municipal election.
Section 16(a):Compensation and Retirement of Justices, Judges and Justices of the Peace
Berkhimer v. State Employees' Retirement Board, 60 A. 3d 873 (Pa.Cmwlth. 2013): See Article I, Section 17.
Section 18: Judicial Discipline
In re Merlo, 58 A. 3d 1 (Pa. 2012): per Todd, J., the Court affirmed the findings and sentence given by the Court of Judicial Discipline in a case where the judge: was habitually tardy or called off late; abusive to counsel and litigants; did not follow proper procedure for landlord tenant cases; and mishandled truancy cases. This brought the judicial office into disrepute under Article V, Section 18(d)(1). The fact that the removal from office and a lifetime ban from holding judicial office in the state was a harsher sentence than those given to judges with similar violations did not make the sentence illegal since each case has different mitigating and aggravating circumstance to be considered. Removal from office is an appropriate sentence under Article V, Section 18(d)(1) for bringing the office into disrepute.
In re Melvin, 57 A.3d 226 (Pa.Ct.Jud.Disc. 2012): per Curran, J., suspended Justice Joan Orie Melvin without pay and held that the rights set out in Article V, Section 18(b)(5) for final orders of sanctions are not available for interim proceedings provided for in Article V, Section 18(d)(2). This constitutional scheme does not offend "any overweening notion of due process" derived from the United States Constitution or the Pennsylvania Constitution. The State Constitution specifically bestows upon the Court of Judicial Discipline the authority to suspend a judge without pay for an interim period. The drafters provided for interim proceedings to take place between the filing of charges against a judicial officer and the final determination of sanctions in order to safeguard the integrity of the judicial system. McGinley, J., dissented and would have left the May 22, 2012 order in place suspending Justice Orie Melvin with pay.
In re Interbranch Commission on Juvenile Justice, 988 A.2d 1269 (Pa. 2010): the Court, per Castille, C.J., ordered the Judicial Conduct Board ("JCB") to disclose a misconduct complaint to the Commission under seal, but denied other requests for disclosure from the JCB by the Commission. (Todd, J., and Orie Melvin, J. concurred and dissented separately).
Article VIII. Taxation and Finance
Section 1: Uniformity
Weissenberger v. Chester County Board of Assessment Appeals, 62 A.3d 501 (Pa.Cmwlth. 2013): per Simpson, J., the court held that the appeal taken by the school district to the board, which resulted in an increased assessment on two properties of taxpayer, was not a violation of the Uniformity Clause in the Pennsylvania Constitution because the taxpayer did not show that any of the other properties in the school district were under-assessed. The court also held that the school district's choice to appeal only the assessments of taxpayer did not constitute "deliberate, purposeful discrimination in violation of the Uniformity Clause." (Judge Leavitt dissented, finding that other similarly situated properties within the county and the school district were not appealed. As a result, taxpayers assessment value is higher than similarly situated complexes in the county.)
Berks County Tax Collection Committee v. The Pennsylvania Department of Community and Economic Development, 60 A.3d 589 (Pa. Cmwlth. 2013): per Pelligrini, J., holding that where one taxpayer earns income both inside and outside of the City of Philadelphia, thus paying EIT on the portion earned within the city, he is not similarly situated with another taxpayer who earns all his income outside the city and is not subject to the non-resident EIT. Thus, there is no violation of the Uniformity Clause.
Marshall v. Commonwealth, 41 A.3d 67 (Pa.Cmwlth. 2012): the court, per Brobson, J., held that eleven times greater tax liability to non-resident partner denied offset from out-of-state losses available to Pennsylvania resident partners does not violate uniformity clause.
Clifton v. Allegheny County, 23 A.3d 607 (Pa.Cmwlth. 2011): after remand, the trial court, per McGinley, J., conducted further proceedings as directed by the Pennsylvania Supreme Court’s 2009 decision in Clifton and declined to award counsel fees; the court held that 42 U.S.C. § 1983 was unavailable in the Pennsylvania courts as a remedy for violations of the federal Equal Protection Clause in controversies that involved state taxation, and therefore, there was no basis for counsel fees because a cause of action in equity is available in Pennsylvania to obtain relief under the Uniformity Clause of the Pennsylvania Constitution. (McCullough, J. did not participate in the decision).
Smith v. Carbon County Board of Assessment Appeals, 10 A.3d 393 (Pa.Cmwlth. 2010): the panel, per Leadbetter, P.J., held that absent a request for county-wide reassessment, or willful discrimination, a taxpayer in a uniformity challenge is entitled to assessment conformity only with the common level in the taxing district rather than with the level of a smaller sample of comparable properties in the district.
DelGaizo v. Commonwealth, 23 A.3d 610 (Pa.Cmwlth. 2011): per Brobson, J., the court upheld a section of the tax code that prohibits carryover loses by shareholders of S-corporations against uniformity and federal equal protection challenges based on different tax treatment of shareholders of C-corporations.
Boguslavsky v. North Pocono School Dist., 11 A.3d 582 (Pa.Cmwlth. 2010): the unanimous panel, per Friedman, S.J., upheld the District's earned income tax against a uniformity challenge.
Clifton v. Allegheny County, 969 A.2d 1197 (Pa. 2009): per Castille, C.J., the Court held unconstitutional, as a violation of the Tax Uniformity Clause, Article VIII, Section 1, the current base year property assessment system, as applied in Allegheny County, and remanded the case to the trial court for implementation of an assessment plan.
Section 2(a)(v): Institutions of Public Charity Exempt from Taxation
Mesivtah Eitz Chaim of Bobov, Inc., v. Pike County Board of Assessment Appeals, 44 A.3d 3 (Pa. 2012): the Court, per Eakin, J., held that the satisfaction of statutory charity criteria pursuant to the Institutions of Purely Public Charity Act, (Act 55), does not displace the need for an entity seeking nontaxable status as an institution of purely public charity to also satisfy the judicially construed constitutional criteria under Section 2(a)(v); entity in question did not qualify under the Constitution as an institution of purely public charity. Saylor, J., joined by Castille, C.J., and Orie Melvin, J., dissented.
City of Philadelphia v. Cumberland County Bd. of Assessment Appeals, 18 A.3d 421 (Pa.Cmwlth. 2011): per Pellegrini, J., the court held that public property used as investment property that generates rental income does not receive tax-exempt status, merely because it is owned by a purely public charity, under Article VIII of the Pennsylvania Constitution.
Church of the Overcomer v. Delaware County Board of Assessment, 18 A.3d 386 (Pa.Cmwlth. 2011): the seven judge panel, per McCullough, J., reversed the grant of tax exempt status as a purely public charity; the opinion demonstrates how Section 5 of the Institutions of Purely Public Charity Act supplements the constitutional test of tax exemption under the five-part test of Hospital Utilization Project v Commonwealth, 487 A.2d 1306 (Pa. 1985).
Article IX. Powers of Local Government
Section 2: Home Rule
Spahn v. Zoning Board of Adjustment, 977 A.2d 1132 (Pa. 2009): the Court, per Castille, P.J., upheld State legislature's amendment of the First Class City Home Rule Act limiting standing in zoning appeals to remove taxpayer standing that had been granted by Philadelphia's Zoning Ordinance; the Court held that access to the courts is not an issue of purely local concern, but a matter of statewide concern, and therefore the amendment did not violate the single subject rule.