November 6, 2017
Recently, in Gravel Hill Ent., Inc. v. Lower Mt. Bethel Twp Zoning Hearing Bd., ___ A.3d ___ (Pa. Cmwlth. 2017), No. 2619 C.D. 2015, filed October 30, 2017, Commonwealth Court sitting en banc addressed, among other issues, an alleged waiver of appeal rights through a stipulation at the trial court level.
October 13, 2017
Mandamus is the proper remedy when seeking to enforce an order of the Pennsylvania Office of Open Records (OOR) against a local agency, according to a Commonwealth Court panel holding in Drack v. Tanner and Newtown Twp., ___ A.3d ___ (Pa. Cmwlth. 2017), No. 288 C.D. 2016, filed October 12, 2017.
October 4, 2017
Depending on one’s world view, the Pennsylvania Supreme Court decision on September 28, 2017 in William Penn School Dist. v. Pa. Dep’t of Ed., 46 MAP 2015 was either a major step forward for education equality, or the work of an activist court that threw out more than 150 years of jurisprudence.
As with most things, we tend to assume that the present status quo or something very similar has always existed. We rarely look beyond our immediate experience to understand how we arrived at the present circumstance. It’s 2017 and most of us have practiced under the rubric of the 1968 state constitution and the establishment of Commonwealth Court in 1970. Perhaps a few remember when the Dauphin County Court of Common Pleas oversaw the Commonwealth Docket, i.e. had jurisdiction over appeals from state agency decisions. However, before 1945 there was no consistently effective mechanism to ensure adequate review of those decisions.
When groups or associations contemplate advancing their policy or legal goals they default to lobbying elected officials in the legislative and executive branches and often neglect the opportunities available to influence law and policy through the third branch of government, the judiciary. Most organizations cannot, and more than likely do not care to be a party in every matter in which their interests may be impacted. However, filing an amicus brief has proven to be an effective method in advising and influencing courts and often can involve far fewer resources than traditional lobbying.
A rude discovery awaits first-time appellate advocates in Pennsylvania: Win or lose, the chances are that the Superior or Commonwealth Court opinion that decides their case will not be published (the Supreme Court of Pennsylvania publishes all of its opinions). If the opinion is not published, it will not be citable at all if from the Superior Court, and will be citable only as persuasive authority if from the Commonwealth Court. The result is that, barring unusual circumstances, if an opinion is not “published” – that is, so designated by the court and then assigned a volume and page number in online and hard copy versions of West’s Atlantic Reporter – it is destined for extinction.
Pennsylvania courts, consistent with the Restatement (Second) of Contracts, imply a duty of good faith and fair dealing to the terms of all contracts. However, in Hanaway v. The Parksburg Group, LP, the Supreme Court (reversing the Superior Court and adopting the reasoning of the dissent that then Judge now Justice Donohue authored) ruled that an implied duty of good faith and fair dealing does not arise under a limited partnership agreement that provided its general partner with “full, exclusive and complete discretion in the management and control of the business of the Partnership.”
Pennsylvania appellate courts infrequently decide choice of law issues. It appears that since 1889 the Pennsylvania Supreme Court has only issued 36 such opinions and the Superior Court only 142. Choice of law issues are decided under the Griffith rule, which first requires the court to examine whether a conflict between two states’ laws truly exists, and if so, to apply the law of the state that has the greater interest in application of its law based on a multi-factor, policy-based test.