Federal Courts and the Pennsylvania Constitution:
Pocono Mountain Charter School v. Pocono Mountain School District, Slip Copy, 2011 WL 3737443 (Not selected for publication in the Federal Reporter) (3rd Cir.(Pa.), August 25, 2011)(NO. 10-4478): although claims for money damages for violations of the Pennsylvania Constitution are barred, equitable remedies (such as declaratory or injunctive relief) are available.
Doe ex rel. Doe v. North Allegheny School Dist., Slip Copy, 2011 WL 3667270 (W.D.Pa., August 22, 2011)(NO. 2:08CV1383): in a memorandum opinion recognizing that because the Pennsylvania Supreme Court has held that the requirements of Article I, Section 1 of the Pennsylvania Constitution are not distinguishable from the Due Process claim of the 14th Amendment of the United States Constitution, federal courts must apply the same analysis to both claims; because the plaintiff’s substantive due process claim did not prevail under the state-created danger theory, plaintiff’s claim under Article I, Section 1 of the Pennsylvania Constitution must necessarily be dismissed.
Sims v. Piazza, Slip Copy, 2011 WL 3664797 (M.D.Pa., August 19, 2011)(NO. 3:09-CV-33): plaintiff’s state law claims, including claims for monetary damages under the Pennsylvania Constitution were dismissed, and the Eighth Amendment cruel and unusual punishment claim was remanded.
Methodological Provisions: Caselaw
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.”
Article 1. Declaration of Rights
Section 1: Due Process
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 8: Search and Seizure
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.
Section 9: Confrontation, Self-Incrimination and Due Process
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).
Section 10: Double Jeopardy and Just Compensation
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 27: Environmental Protection
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.
Article II. The Legislature
Section 7: Ineligibility of Criminal Convictions
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.
Article V. The Judiciary
Section 1: Seperation of Powers
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.
Section 10(c): Rule-Making Authority
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).
Article VIII. Taxation and Finance
Section 1: Uniformity
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).
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.
Section 2(a)(v): Institution of Public Charity Exempt From Taxation
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).