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.

February 2018

Commonwealth v. Adams, 2017 WL 2424726 (Pa. Super. 2017)(unreported), appeal docket 6 WAP 2018

Allocatur granted Feb. 12, 2017. Investigatory Detention; Probable Cause

The Supreme Court granted allocatur to consider whether the trial court erred in denying a motion to suppress when the suspect was detained for pulling into his own business, when such was closed, and thus the stop and subsequent detention was not supported by probable cause or reasonable suspicion of criminal activity.

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Reuther v. Delaware Co. Bur. of Elections172 A.3d 738 (Pa. Cmwlth. 2017), appeal docket 6 MAP 2018

Allocatur granted Feb. 8, 2017. Election Law; Fatal Defects; Statement of Financial Interests, Petition to Strike; Timeliness

The Supreme Court granted allocatur to review Commonwealth Court’s holding that a write-in candidate’s failure to file a Statement of Financial Interests is not “fatal” in terms of the candidate’s position on the municipal or general election ballot because noncompliance with the regulation is a matter for enforcement by the State Ethics Commission rather than the courts.

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January 2018

Williams, et al. v. City of Phila., 164 A.3d 576 (Pa. Cmwlth. 2017), appeal dockets 2 EAP 2018, 3 EAP 2018

Allocatur granted Jan. 30, 2017. Taxation; Preemption; Sterling Act

The Supreme Court granted allocatur to review Commonwealth Court’s conclusion that Philadelphia was empowered to enact the Philadelphia Beverage Tax (PBT) under the Sterling Act and that the City’s authority to do so was neither explicitly nor impliedly preempted by Commonwealth statutes such as the Tax Code and the Local Tax Reform Act.

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Commonwealth v. Berryhill2017 WL 3050118 (Pa. Super. 2017)(unreported), appeal docket 4 EAP 2018

Allocatur granted Jan. 30, 2017. Criminal Procedure: Abuse of discretion; Speedy trial; Pa. R. Crim. P 600

The Supreme Court granted allocatur to consider whether the Superior Court abused its discretion regarding excluable calculations under Pa. R. Crim. P. 600.

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BouSamra v. Excela Health, 167 A.3d 728 (Pa. Super. 2017), appeal docket 5 WAP 2018

Allocatur granted Jan. 30, 2017. Discovery; Attorney-Client Privilege; Work-Product Doctrine

The Supreme Court granted allocatur to consider whether the Superior Court commit an error of law when holding that a client waives the work-product protection of its counsel’s pre-litigation e-mail by forwarding the e-mail to its public relations consultant, and/or by holding that, to qualify as a privileged person within the attorney-client privilege, a third party must provide legal advice and have the lawyer or client control its work?

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Pet. of: Board of Commissioners of Cheltenham Twp., sub nom. Bd. of Commissioners of Cheltenham Twp. v. Hansen-Lloyd, L.P., 166 A.3d 496 (Pa. Cmwlth. 2017), appeal docket 3 MAP 2018

Allocatur granted Jan. 29, 2017. Zoning; Special Exception; Applicable Law

This allocatur grant arises from a case of first impression in Bd. of Commissioners of Cheltenham Twp. v. Hansen-Lloyd, L.P., where the Commonwealth Court considered whether, under the Municipalities Planning Code (MPC), the zoning ordinance in effect when a mandatory sketch plan for development was filed applies to a subsequently filed application for special exception, or whether the application for special exception is governed by the zoning ordinance in effect at the time it is filed.

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EQT Production Co., v. Borough of Jefferson Hills, 162 A.3d 554 (Pa. Cmwlth. 2017), appeal docket 4 WAP 2018

Allocatur granted Jan. 22, 2017. Land Use and Zoning: Conditional Use; Burden of Proof: Sufficiency of Evidence

The Pennsylvania Supreme Court granted allocatur to determine whether the Commonwealth Court erred as a matter of law by imposing a standard upon the admissibility of objectors’ evidence that effectively eliminates the ability to raise any objection to a land use application based on firsthand experience with a similar use when the proposed use does not already appear within municipal borders?

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Com. v. Santiago, 160 A.3d 814 (Pa. Super. 2017), appeal docket 1 EAP 2018

Allocatur granted Jan. 22, 2017. Application of Fruit of the Poisonous Tree Doctrine to In-Court Identification Testimony

The Supreme Court granted allocatur to determine the applicability of the fruit of the poisonous tree doctrine to in-court identification testimony.

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C.G. v. J.H., 172 A.3d 43 (Pa. Super. 2017), appeal docket 2 MAP 2018

Allocatur granted Jan. 17, 2017. Standing of Same-Sex Partner in Custody Action

The Supreme Court granted allocatur to determine whether the Superior Court erred in affirming the decision of the trial court that a former same-sex partner lacked standing both 1) as a parent and 2) as a party who stood in loco parentis to seek custody of the child born during her relationship with the birth mother where the child was conceived via assisted reproduction with an anonymous sperm donor and the parties lived together as a family unit for the first five years of the child’s life.

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Bayview Loan Servicing LLC v. Wicker, 163 A.3d 1039 (Pa. Super. 2017), appeal docket 3 WAP 2018

Allocatur granted Jan. 17, 2017. Hearsay – Business Records Exception; Admissibility of Witness Testimony at Debt Collection Trial

The Supreme Court granted allocatur to determine issues related to the conflict between U.S. Bank v. Pautenis; Boyle v. Steiman and Commonwealth Financial Systems v. Smith as to the admissibility of witness testimony at a debt collection trial

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Wolk v. Sch.  Dist. of Lower Merion, 2017 WL 1418445(Pa. Cmwlth.)(unreported), appeal docket 1 MAP 2018

Allocatur granted Jan. 17, 2017. Distinguishing Between Preliminary and Permanent Injunction for Purposes of Appeal; Applicability of Pa. R.A.P 311(a)(4); Requirement to File Post- Trial Motions; Waiver

The Supreme Court granted allocatur to determine issues arising from a lawsuit against School District of Lower Merion attacking a tax increase allegedly in excess of the statutory maximum increase

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Com. v. McClelland, 165 A.3d 19 (Pa. Super. 2017), appeal docket 2 WAP 2018

Allocatur granted Jan. 11, 2017.  Hearsay; Preliminary Hearing; Due Process

The Supreme Court granted allocatur to determine whether reliance on hearsay alone to establish a prima facie case at a criminal preliminary hearing violates due process.

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Com. v. Monarch, 165 A.3d 945 (Pa. Super. 2017), appeal docket 1 WAP 2018

Allocatur granted Jan. 11, 2017.  Impermissible Enhanced Penalties for Refusal to Consent to Chemical Testing

The Supreme Court granted allocatur to determine whether petitioner in this case was given impermissible enhanced penalties, as expressed in Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160, 195 L.Ed.2d 560 (June 23, 2016), for his refusal to consent to chemical testing?

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December 2017

County of Butler v. Centurylink Communications, LLC,  163 A.3d 504 (Pa. Cmwlth. 2017), appeal docket 66 WAP 2017

Allocatur granted Dec. 27, 2017.  911 Act; Statutory Construction Act Section 1504 and Common Law

The Supreme Court granted allocatur to determine when the General Assembly plainly and unambiguously grants the right to enforce a statute to a particular Commonwealth agency, may a different plaintiff circumvent this legislative directive by attempting to enforce the statute through common-law damages claims?

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Schock v. City of Lebanon, 167 A.3d 861 (Pa. Cmwlth. 2017), appeal docket 79 MAP 2017

Allocatur granted Dec. 27, 2017. Statutory Construction; In Pari Materia; Expressio Unius Est Exclusio Alterius

The Supreme Court of Pennsylvania granted allocatur related to statutory interpretation of the Neighborhood Improvement District Act as decided by the Commonwealth Court.

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Melmark Inc. v. Schutt, 169 A.3d 638 (Pa. Super. 2017), appeal docket 78 MAP 2017

Allocatur granted Dec. 26, 2017.  Choice of Law; Quantum Meruit

The Supreme Court of Pennsylvania granted allocatur to determine issues stemming from a rare choice of law decision from the Pennsylvania Supreme Court.

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Commonwealth v. Gill, 158 A.3d 719 (Pa. Super. 2017), appeal docket 65 WAP 2017

Allocatur granted Dec. 20, 2017.  Admission of Evidence of Similar Crimes; Relevance

The Supreme Court of Pennsylvania granted allocatur related to the admission of evidence of a subsequent, similar burglary at the same residence as evidence of similar crimes, behaviors, and/or acts.

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HIKO Energy, LLC v. Pennsylvania PUC, 163 A.3d 1079 (Pa. Cmwlth. 2017), appeal docket 39 EAP 2017

Allocatur granted Dec. 13, 2017.  Civil Penalties; Excessive Fines Clause

The Supreme Court of Pennsylvania granted allocatur on issues related to a $1,836,125.00 civil penalty imposed against Hiko Energy by the Pennsylvania Public Utility Commission and affirmed by a divided Commonwealth Court.

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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 of Pennsylvania 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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Archives

October 2017 Allocatur Grant Archive

September 2017 Allocatur Grant Archive 

August 2017 Allocatur Grant Archive

For more information, contact Kevin McKeon or Dennis Whitaker