Review of a final order of the Superior Court or the Commonwealth Court is not a matter of right, but of sound judicial discretion, and an appeal is allowed only when there are special and important reasons.  The Supreme Court grants allocatur as to particular issues, not cases.

Pennsylvania Appellate Advocate will note allocatur grants as they are made and will provide background on the issues as to which discretionary review has been granted.  Allocatur grants issued beginning August 1, 2017 are noted below, and this page will be updated on a continuing basis.

December 2017

Commonwealth v. Childs, 2017 WL 2274639 (Pa. Super.)(unpublished), allocatur granted Dec. 6, 2017, appeal docket 436 MAL 2017

Allocatur granted Dec. 6, 2017.  PCRA; Ineffective Assistance of Counsel

The Supreme Court granted allocatur to determine whether the PCRA court erred in dismissing Childs’ Petition for Post Conviction Relief averring that trial counsel was ineffective for failing to object to remarks of the assistant district attorney during her closing argument wherein she repeatedly called Childs a liar?

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November 2017

Building Owners & Managers Assoc. v. City of Pittsburgh, 2017 WL 2153216 (Pa. Cmwlth); Pa. Restaurant & Lodging Assoc. v. City of Pittsburgh, 2017 WL 2153813 (Pa. Cmwlth.), appeal dockets 57-64 WAP 2017 (consolidated for briefing and oral argument)

Allocatur granted Nov. 29, 2017.  Municipality’s Authority under Home Rule Charter Law; Exception by Statute

The Supreme Court granted allocatur to determine whether the Commonwealth Court erred in holding that the State Emergency Management Services Code, the State Disease Prevention and Control Act Law, the Second Class City Code, and the Home Rule Charter and Options Law fail to satisfy the “expressly provided by statute” exception, and that the City of Pittsburgh therefore lacked the authority to pass the Paid Sick Days Act and the Safe and Secure Buildings Act?

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Feleccia v. Lackawanna College, 156 A.3d 1200 (Pa. Super. 2017), appeal docket 75 MAP 2017

Allocatur granted Nov. 29, 2017.  College’s Duty of Care to Student-Athletes; Exculpatory Clause

The Supreme Court granted allocatur to determine issues involving a college’s duty of care to student athletes and whether the exculpatory clause shields the college from liability.

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Harmon v. UCBR, 163 A.3d 1057 (Pa. Cmwlth. 2017), appeal docket 37 EAP 2017

Allocatur granted Nov. 28, 2017.  Unemployment Compensation; Ineligibility for Benefits due to Incarceration

The Supreme Court granted allocatur to determine issues involving a claimant’s eligibility for unemployment benefits under Section 402.6 for weeks when Claimant was subject to part-time incarceration, and administrative deference afforded to the UCBR.

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Gavin v. Loeffelbein, 161 A.3d 340 (Pa. Super. 2017), appeal docket 74 MAP 2017

Allocatur granted Nov. 28, 2017.  Automatic Termination of Emergency Guardianship; Incapacity & Financial Transactions

The Supreme Court granted allocatur to determine whether the Superior Court erred by holding emergency guardianship orders automatically expire and/or by holding that the rebuttable presumption that an incapacitated person is unable to engage in financial transactions is inapplicable to a person under the protection of an emergency guardian who has been appointed for the person and his estate?

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Commonwealth v. Hlubin, 165 A.3d 1 (Pa. Super. 2017), appeal docket 56 WAP 2017

Allocatur granted Nov. 21, 2017.  Municipal Police Powers; DUI Checkpoints

The Supreme Court granted allocatur to consider whether the Superior Court erroneously broaden municipal police powers by holding that when municipal police officers leave their primary jurisdiction for the purpose of conducting sobriety checkpoints.

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Commonwealth v. Braddock, 2017 WL 1394012 (Pa. Super.)(unreported), appeal docket 73 MAP 2017

Allocatur granted Nov. 20, 2017.  DUI; Enhanced Penalties for Blood Test Refusal

Whether the Superior Court, relying on Commonwealth v. Giron, 155 A.3d 635 (Pa. Super. 2017), improperly expanded the illegal sentencing doctrine when it vacated Braddock’s sentence on a non-preserved constitutional issue, holding that Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), rendered enhanced penalties under 75 Pa.C.S. §§ 3803-3804 illegal, even though Birchfield recognized exigent circumstances or a search warrant can still justify increased penalties for a blood test refusal?

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Mitchell v. Shikora, D.O., University of Pittsburgh Physicians D/B/A, Womancare Associates, Magee Women’s Hospital of UPMC, 161 A.3d 970, appeal docket 55 WAP 2017

Allocatur granted Nov. 20, 2017.  Evidence of General Risks and Complications in a Medical Negligence Claim

Whether the Superior Court’s holding directly conflicts with this Honorable Court’s holdings in Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), which permits evidence of general risks and complications in a medical negligence claim?

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Commonwealth v. Adams2016 WL 4698914 (Pa. Super.) (unreported), appeal docket 36 EAP 2017

Allocatur granted Nov. 20, 2017. Exceptions to a Forfeiture Determination

Was it not error for the Superior Court automatically to dismiss petitioner’s appeal without a merits review when this Court’ consistent jurisprudence allows exceptions to a forfeiture determination and petitioner’s circumstances track those exceptions?

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Commonwealth v. Griffin, 149 A.3d 349 (Pa. Super. 2016), allocatur granted Nov. 14, 2017, appeal docket 72 MAP 2017

Allocatur granted Nov. 14, 2017. Three Strikes Law; Separate Sentencing for Related Conspiracy

Whether the Superior Court erred in affirming the imposition of separate consecutive “second strike” mandatory minimum sentence[s] for each conspiracy and crime which was the object of that conspiracy?

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Commonwealth v. DeWeese, 2017 WL 1906106 (unreported)(Pa. Super. 2017), appeal docket 69 MAP 2017

Allocatur granted Nov. 7, 2017. Ineffective Assistance of Counsel; Post Conviction Relief Act

Did the Superior Court err in denying PCRA relief where [Petitioner’s] trial counsel failed to preserve for direct appeal the testimony of 14 witnesses who were prevented by the trial court from offering exculpatory testimony that was crucial to the defense and that would have directly contradicted the Commonwealth’s primary witnesses at trial?

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Pittsburgh History & Landmarks v. Ziegler161 A.3d 394 (Pa. Cmwlth. 2017), appeal docket 54 WAP 2017

Allocatur granted Nov. 1, 2017. Attorney-Client Privilege in Derivative Litigation; Fiduciary, Common Interest, & Garner Exceptions

Whether, in the context of derivative litigation, the Commonwealth of Pennsylvania will adopt the qualified attorney-client privilege, the scope of which is subjectively determined, as articulated in the often criticized decision of Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), cert. denied, 401 U.S. 974 (1971), and as articulated in the Restatement (Third) of the Law Governing Lawyers, § 85, where the ambiguous and uncertain scope of such a privilege is inconsistent with Pennsylvania Supreme Court precedent and in conflict with the Pennsylvania statute codifying the attorney-client privilege.

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October 2017

MERSCORP, Inc. v. Delaware Cty., 160 A.3d 961 (Pa. Cmwlth. 2017), appeal docket 67 MAP 2017

Allocatur granted Oct. 31, 2017.  Duty to Record Land Conveyances; Standing under 21 P.S. § 351

Whether the Commonwealth Court erred in ruling that Respondents may systematically evade Pennsylvania’s land recording statutes, including 21 P.S. § 351, and not record many thousands of conveyances in the Offices of the Recorders of Deeds across the Commonwealth?

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In Re: T.S., E.S., minors, Pet of: T.H.-H., 2017 WL 3669504 (Pa. Super. 2017)(unreported), appeal docket 50 WAP 2017

Allocatur granted Oct. 26, 2017.  Appointment of Independent Counsel for Minor Children; Termination of Parental Rights

Whether the Superior Court erred in failing to require that the court appoint counsel for a child in a contested termination of parental rights hearing as required by 23 Pa. C.S. § 2313(a) and In re L.B.M., 161 A.3d 172 (Pa. 2017)?

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Snyder Bros., Inc. v. Pa Pub. Util. Comm’n, 157 A.3d 1018 (Pa. Cmwlth. 2017), appeal docket 47 WAP 2017

Allocatur granted Oct. 18, 2017.  Unconventional Gas Well Impact Fee Act, Act 13 of 2012; Statutory Construction

On a question of first impression involving substantial public interest, did the Commonwealth Court err in finding that the definition of “stripper well” in the Unconventional Gas Well Impact Fee Act of 2012 (Act 13), was clear and unambiguous?

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Commonwealth v. Small, 2017 WL 1423608 (unreported)(Pa. Super. 2017), appeal docket 63 MAP 2017

Allocatur granted Oct. 17, 2017.  Acceptance of Newly Discovered Evidence; Cumulative and Corroborating Evidence

Whether the Superior Court erred in reversing the PCRA court’s grant of a new trial based on after-discovered evidence by finding that Tyson’s testimony was merely cumulative and corroborative of the exculpatory evidence presented at Petitioner’s trial?

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Pa. State Police, Liquor Control Bd. v. Jet-Set Restaurant, LLC, 2017 WL 1365605 (unreported) (Pa. Cmwlth. 2017), appeal docket 61 MAP 2017

Allocatur granted Oct. 13, 2017.  Definition of “Frequenting” under 2003 Amendment to Liquor Code

Does the definition of “frequenting” set forth in Appeal of Speranza, 206 A.2d 292 (Pa. 1965) still apply to Section 4-493(14) of the Liquor Code, or do the 2003 Amendments to the Code demonstrate the General Assembly’s intent that a minor may not be inside a licensed premises even a single time unless one of the exceptions enumerated in Section 4-493(14) applies?

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Szabo v. Commonwealth, Department of Transportation, 159 A.3d 604 (Pa. Cmwlth. 2017), appeal docket 46 WAP 2017

Allocatur granted Oct. 12, 2017.  Adequacy of Condemnation Plan; Eminent Domain Code; Preliminary Objections

By failing to file preliminary objections pursuant to section 306 of the Eminent Domain Code, 26 Pa. C.S. § 306, did Respondents waive their right to assert ownership and seek additional just compensation for the condemnation of two parcels which were allegedly mistakenly depicted as belonging to two other legal entities in plans attached to the declaration of taking?

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Commonwealth v. Hicks, 2017 WL 1176412 (Pa. Super. 2017)(unreported), appeal docket 56 MAP 2017

Allocatur granted Oct. 2, 2017.  Possession of a concealed firearm; reasonable suspicion for investigative detention

Whether the Superior Court’s bright line rule holding that possession of a concealed firearm in public is sufficient to create reasonable suspicion is a matter of such substantial public importance as to require prompt and definitive resolution by the Pennsylvania Supreme Court?

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Archives

September 2017 Allocatur Grant Archive 

August 2017 Allocatur Grant Archive

For more information, contact Kevin McKeon or Dennis Whitaker