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Posted by on Mar 2, 2018 in Civil, Statutory Interpretation, UTPCPL | 0 comments

Danganan v. Guardian Protective Services: UTPCPL violation need not be in Pennsylvania

The Pennsylvania Supreme Court ruled unanimously in Danganan v. Guardian Protective Services that a violation of the Unfair Trade Practices Consumer Protection Law need not have occurred in Pennsylvania to be cognizable under the statute. This case was certified to SCOPA from the Third Circuit, meaning that the Third Circuit asked SCOPA to settle an unsettled question of Pennsylvania law so that the Federal Court could adjudicate the dispute. This case represents a relatively rare look into a unique aspect of our federalist judicial system.

Danganan hired Guardian Protective Services, which is a home security company based in Lancaster, Pennsylvania (home of relatively lax home defense) to monitor his house in Washington, D.C. (home of the world’s most secure house). The contract, which contained a choice of law clause for Pennsylvania, and which required an aggrieved party to file suit in the other party’s home jurisdiction, ended up going sour after Guardian refused to terminate it when Danganan moved to California in the middle of the contract. Danganan filed a putative class action against Guardian in Pennsylvania, and Guardian removed the case to federal court based on diversity jurisdiction. (More on this in the conclusion, below). The Third Circuit certified the question to SCOPA of whether the UTPCPL governs conduct outside of Pennsylvania.

Majority by CJ Saylor: The UTPCPL prohibits unfair trade practices wherever they occur

Writing for the unanimous Court, the Chief Justice rules that the UTPCPL (which desperately needs a better acronym) holds that there is “no geographic limitation or residency requirement” in the text of the UTPCPL. In addition, the UTPCPL is “remedial legislation”—that is, legislation addressed to a perceived problem which the legislature hopes to curb. The law’s purpose is “fraud prevention,” and “equalizing the bargaining power of the seller and consumer, ensuring the fairness of market transactions, and preventing deception and exploitation.” The majority finds nothing in the law to limit the geographic reach of the statute, nor requiring some “sufficient nexus” between the plaintiff and the Commonwealth. The Supreme Court rejects Guardian’s argument that this holding will result in suits anywhere in the world against them based on UTPCPL, finding that “other legal precepts” such as jurisdiction and choice of law rules will limit the holding sufficiently.

With this conclusion, the Court declines to reach the second certified question from the Third Circuit—the interpretation of the choice of law provision of the contract. The question is mooted, and the case is returned to the Third Circuit.

Conclusion: How is this case in Federal Court?

This case will have a tremendous impact on future litigation, as it is now clear that the UTPCPL may be alleged against a Defendant where Pennsylvania law governs a contract, regardless of where the suit is actually brought, and regardless of where the acts giving rise to the claim occurred. Indeed, major companies may wish to carefully consider the wisdom of choice of law provisions naming Pennsylvania in future contracts.

The case has a jurisdictional curiosity of another type, however: the introduction mentions that Guardian removed the case to federal court based on diversity jurisdiction after being sued in Pennsylvania, where it is “headquartered.” This doesn’t make any sense, as 28 U.S.C. § 1441(b)(2) disallows removal based on diversity where any defendant is sued in its home state. Perhaps this will be explained in the ultimate holding of the Third Circuit or District Court in this matter—but it is not clear as to how any Federal Court has Subject Matter Jurisdiction over this case.

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Posted by on Feb 26, 2018 in Appellate, Criminal, Fourth Amendment, Harmless Error, Search | 0 comments

Com v. Fulton: Warrantless Cell Phone searches violate both Constitutions

In a relatively-unsurprising re-affirmation of recent SCOTUS caselaw, the Supreme Court of Pennsylvania ruled 6-0 in Commonwealth v. Fulton that a warrantless search of a cell phone is unconstitutional and must be suppressed. SCOPA also ruled that the search violates Article I, section 8 of the Pennsylvania Constitution, which places this ruling out of the reach of any changes in Federal search jurisprudence in the future.

The Philadelphia Police (who once arrested one of the world’s first serial killers), after arresting I. Dean Fulton on gun charges, kept his cell phone separate from the other evidence and, without obtaining a warrant, monitored incoming calls to the phone, and answered them. After meeting with Heather Warrington, who called the phone looking to buy heroin, homicide detectives were able to discover a wealth of physical evidence which, along with Warrington’s testimony, led to Fulton’s conviction for a recent murder.

Majority by Donohue: Riley v. California already decided this, and we agree

In a unanimous opinion, Justice Donohue rules for the 6-0 majority that SCOTUS’s decision in Riley v. California controls the search of any cell phone, and that the officer’s actions in this case violated that ruling. The Court further rules that such a search is clearly unreasonable, and should be seen as a violation of the Commonwealth’s Constitution as well. Rejecting the Superior Court’s ruling that the “specific intrusion complained of” in the search in this case was “minimal,” the Court noted that Riley established a per se rule against cell phone searches without a warrant.

The more interesting analysis is that of harmless error. The Court notes that a witness’s testimony is not suppressed as often as physical evidence because a witness may choose to come forward on his own, and may not need to be discovered via a warrantless search. To put it differently, it is more likely that a witness may come forward and therefore be attenuated from the illegal search than discovered documents or hard evidence. A major factor to consider, then, is whether the witness would likely have come forward voluntarily or not.

In this case, the witness was a heroin addict, and unlikely to be cooperative with police or to come forward voluntarily. The police only discovered her existence by monitoring incoming calls to the cell phone, and were unlikely to discover her otherwise. Therefore, the witness’s testimony is suppressed, along with all the hard evidence discovered as a result of the search.

Conclusion: Could have been a summary reversal

The Court’s opinion is well-reasoned, and a minor victory for privacy advocates. This case was not difficult; SCOTUS caselaw was clear on the point, and the Commonwealth’s argument that a warrantless search that led to all of the evidence in the case was “harmless” was untenable. The Court probably could have issued a summary reversal for proceedings consistent with Riley, but perhaps wanted to flesh out the nature of “harmless error” in the context of a witness’s testimony.

Finally, worth noting, in footnote 19, the Court notes that Fulton did not litigate whether harmless error can be found by a court sua sponte, and leave the question “unsettled.” This invitation for a challenge to the Superior Court’s consideration of harmless error sua sponte should be noted by the appellate bar for future challenges.

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Posted by on Feb 26, 2018 in Round-ups | 0 comments

Federal Block to Gerrymandering Roundup 2-26-18

The fight over SCOPA’s gerrymandering decision continues. SCOTUS denied cert from the first decision, but now the issuance of the map is being challenged. Lyle Denniston of SCOTUSblog fame discusses the status of the challenge in the middle district. In response to the calls for impeachment of SCOPA justices, Constitution Daily offers this helpful piece on the efforts to impeach state judges throughout history. The Mercury (of Montgomery County) offers its views on the GOP’s long-term worries about the Court.

As always, feel free to send any articles or op-eds you’ve seen on the Court to

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Posted by on Feb 26, 2018 in Civil, Constitutional Provisions, Elections | 0 comments

League of Women Voters v. Commonwealth: The “Free and Equal Elections” Clause Prohibits Gerrymandering

League of Women Voters v. Commonwealth: The “Free and Equal Elections” Clause Prohibits Gerrymandering

EDIT: The map has been released as promised by the Court, along with a brief opinion on February 19, re-outlining the views of the Court. We have included it here for ease of reference.

Ever since the Pennsylvania Supreme Court issued an expedited order in League of Women Voters v. Commonwealth, ordering the Commonwealth Court to proceed with discovery and findings of fact, many have speculated as to whether the Court would really rush out in front of the Supreme Court of the United States on the issue of gerrymandering and issue a decision attempting to proscribe the practice. In January, the Court not only did so, but in a 5-2 decision, required the legislature and governor to come to terms on a new congressional map before this year’s primary elections. The Court also ruled that Pennsylvania’s current congressional map violates the “Free and Equal Elections” clause in Article I, section 5 of the Pennsylvania Constitution.

Gerrymandering has a long and defiant history in the political systems of the United States—indeed, the practice is named after one of our founding fathers, who himself was hardly its first practitioner. Scholars, politicians and courts have proposed a number of solutions, but to date, none has proven to be particularly successful in curtailing the practice. Some argue that gerrymandering is the inescapable result of the political system, and that the power to draw lines is the natural spoil of the sport.

The Supreme Court of Pennsylvania’s opinion may be the most aggressive ever issued on gerrymandering, and it has sparked a political battle between the branches of the Commonwealth’s government. From the perspective of a judiciary-watcher, the case—and this opinion—have been entertaining. Not only has the case drawn national press attention, but it has invoked the more obscure tools of Pennsylvania’s flexible appellate judiciary, relied on the precedence of Pennsylvania’s constitution, fleshed out an Article I right that has lain dormant until now, highlighted the uniqueness of Pennsylvania’s federalist structure, and tested the limits of SCOPA’s powerful jurisdiction. This may be one of the greatest test of SCOPA’s power in the Pennsylvania political structure to date. Only one other state (Alaska) has ever found protections against gerrymandering in a state constitution, and Pennsylvania takes an enormous step in this area of law in holding that the congressional map “clearly, plainly and palpably violates the Pennsylvania Constitution.”

Majority by Todd: Districts must be compact, contiguous, and maintain the integrity of political subdivisions

In her 5-2 majority opinion, Justice Todd holds that Article I, section 5’s “free and equal elections” clause requires that the districts drawn by the legislature be 1) compact, 2) contiguous, and 3) maintain the integrity of political subdivisions. “Our founding document is the ancestor, not the offspring, of the federal Constitution,” the Court explains, which is significant in part because the traditional grounds for federal suits against state gerrymandering are grounded in the 14th Amendment—written long after the Pennsylvania Constitution’s Article I.

The provision at issue here reads as follows: “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

The Court delves into some of the most notable scholarship on the Pennsylvania Constitution’s development, finding that the “free and equal” provision was a response to the restrictions on the right of political minorities to vote, and that an election is not free and equal if individuals’ votes are targeted for dilution for political purposes. Such targeting robs the voter of his voice, and is antithetical to the democratic process.

The Court includes a great deal of discussion on the scientific and mathematical model findings of several expert witnesses, which support the Court’s ultimate ruling that this plan fails to satisfy the three overarching goals of the free and equal elections clause.

Finally, the Court gives a defense of its decision to rewrite the congressional map if the democrat Governor finds the Republican legislature’s plan unacceptable (which happened yesterday). The Court cites proudly to a Scalia decision from SCOTUS in Growe v. Emison, 507 U.S. 25 (1993), which ruled that federal courts should exercise Pullman abstention where a state court was redistricting the legislative map in an attempt to comply with federal law. (Scalia also called this a “highly political task” in that same opinion—the Court spends relatively little time in this opinion on justiciability or political question doctrine, which have traditionally prevented these suits).

SCOPA also argues that its powers derive from the legislative codification of SCOPA’s King’s Bench authority (SCOPA may “enter a final order or otherwise cause right and justice to be done.” 42 Pa.C.S. § 726). Of course, whether this King’s Bench authority allows the Court to usurp a traditional legislative function is a somewhat different question, which the Court does not address.

Concurrence by Baer: These criteria have no basis in the Constitution

Justice Baer concurs in the result, but would have waited to order a new map until after the primaries. Baer alleges that the lack of time to formulate a new map may even represent due process concerns for the parties to the case. He also has concerns about the clarity of the criteria developed by the Court—criteria which have no basis in the text of the Constitution. “I am unwilling to engraft into the Pennsylvania Constitution criteria for the drawing of congressional districts when the framers chose not to include such provisions despite unquestionably being aware of both the General Assembly’s responsibility for congressional redistricting and the dangers of gerrymandering. It is not this Court’s role to instruct the Legislature as to the ‘manner of holding elections,’ including the relative weight of districting criteria.”

Dissent by Saylor: improvident use of extraordinary jurisdiction

Chief Justice Saylor dissents, arguing that the Court should have awaited the “anticipated guidance from the Supreme Court of the United States,” particularly in light of how long the challengers waited to challenge the 2011 congressional map. The Chief Justice views the matter as inherently political, and would leave greater deference to the political branches.

Saylor also argues there is no “right to an equally effective power of voters in elections,” and that a voter’s diluted vote is part of the democratic process. Citing to a SCOTUS concurrence by Justice O’Connor, Saylor suggests that the “prophylactic” rule created here could have a chilling effect on even legitimate considerations (such as giving racial minorities greater pull in elections). Saylor also notes that the power to draw districts is left by the Federal Constitution’s Article I, section 4, to the legislatures of the states.

Dissent by Mundy: Stare Decisis and lack of constitutional mandate compel a different result

Justice Mundy dissents, arguing that the state constitution provides no clear guidance on how congressional maps are to be created, and criticizing the Court for “these vague judicially-created ‘neutral criteria,’” which “are now the guideposts against which all future congressional redistricting maps will be evaluated, with this Court as the final arbiter of what constitutes too partisan an influence.” Mundy also points to Erfer v. Com, 568 Pa. 128 (2002), in which the Court had previously considered and declined arguments to rule that gerrymandering violated the state constitution. Justice Mundy also discusses the SCOTUS caselaw cited by the majority, discussing how none of these cases dealt with the elections clause of the Federal Constitution’s Article I, section 4.

Conclusion: The political dispute becomes legal; but will the legal become political?

To say there are differing opinions on the validity of the Court’s judgment here is an understatement. The longshot appeal to SCOTUS—denied on February 5—argued that SCOPA had usurped the role delegated to the legislature by the Federal Constitution in Article I, section 4. The argument is that the Federal Constitution gives to certain branches of the state government specific jobs to do which may not be reviewed or impinged by other branches of the state government in order to ensure that certain necessary tasks within our federal system are left outside of state politics. If you recall, this was the argument embraced by a concurrence in Bush v. Gore in overruling a state court’s interpretation of its own laws, and instead accepting the state legislature’s prescribed process for vote counting. This argument may yet come back, depending on how SCOPA draws the congressional map.

But the biggest gripe which opponents of the decision have is that the Court has entered the political fray and rendered political disagreements justiciable. There will be hew and cry when a democratic map is upheld, or vice versa, and there will never be peace. The Court’s bold move may usher in calls for reining in the Court’s power, or even for a constitutional convention. When the political becomes legal, there is a danger that the legal will become political, subject to whims and passions. Law is a science, or so we lawyers like to think, separate and apart from the politicians’ arts. Now SCOTUS will have its turn; will its ruling be as bold? Or will SCOTUS dodge again on justiciability grounds? With League of Women Voters, the Pennsylvania Supreme Court takes a bold step into the fray. History will judge whether the step was wise or ill-considered.

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Posted by on Feb 23, 2018 in Criminal, Fourth Amendment, Seizure, Suppression | 0 comments

Com v. Yong: Collective Knowledge Doctrine Affirmed

When two police officers independently have the information necessary to constitute probable cause, but they have not communicated these facts to each other, is the arrest of the defendant constitutional? The Supreme Court of Pennsylvania says yes, in a 4-2 ruling in Commonwealth v. Yong.

Mr. Yong’s suspected drug dealing in Philadelphia (home of the World Champions) was the subject of surveillance by the Philadelphia Police in 2011. During that time, he was observed by Officers McCook and Morales conducting marijuana transactions. The record reveals that Officer McCook “met up with . . . other officers” and “brief[ed] them on the execution of the search warrant.” One of these other officers was Officer Gibson, who arrested Yong during the search and discovered a gun on his person. Marijuana was recovered in substantial amounts from the premises, and Yong was charged with various drug related crimes.

The collective knowledge doctrine allows officers to have the knowledge of other police officers “imputed” to them for Fourth Amendment purposes. Two approaches have been adopted by courts: vertical and horizontal. The vertical approach involves a situation where an officer with probable cause orders another officer to act (“Arrest that man!”). Courts have broadly ruled this this situation imputes probable cause. The horizontal approach is the controversial one—can a group of officers, each of whom holds a piece of the puzzle, be rendered a unit for the purpose of probable cause?

Majority by Mundy: Officer with Probable Cause may impute his knowledge to another Officer

Justice Mundy, writing for the 4-member majority, writes that the knowledge of a police officer with probable cause may be imputed to the arresting officer under the collective knowledge doctrine if they “are working in a coordinated investigation and not as independent law enforcement personnel . . . coincidentally.” Noting that there are “serious concerns for protecting citizens from unconstitutional intrusions,” the majority rejects the horizontal approach, but finds that a vertical approach is supported by the facts of this case.

The majority places particular weight on the pre-search briefing that took place. Surely there was communication of probable cause at that time, or at the very least, an order to arrest Yong if he was seen. Accordingly, the majority has no qualms that an illegal search took place here. “[W]e maintain that Pennsylvania adheres to the vertical approach of the collective knowledge doctrine, which instructs that an officer with the requisite level of suspicion may direct another officer to act in his or her stead.”

Dissent by Donohue: Proof of Communication should be Required for Vertical Approach

Justice Donohue dissents, accusing the majority of “announc[ing] a new rule that permits uncommunicated knowledge of one police officer to justify an arrest conducted by another officer.” Donohue would require evidence of actual communication, not imputed authority.

Conclusion: An Odd Vehicle for this Holding

Appellate courts traditionally look for good “vehicles” to resolve major issues of law. In other words, they prefer cases that cleanly present the issue. In this case, the Court, having found vertical collective knowledge, need not have made any determination on the horizontal approach. Clearly, the Court was eager to provide guidance on this, and to some extent, it is appreciated by practitioners at the criminal bar. Nonetheless, the Court usually tries to take cases where an analysis can take place without leaving the facts at hand, which did not happen here.

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