CONSTITUTIONAL
LAW
Somerset Legal Journal headnotes from approximately 1991
through the present.
For earlier cases, please visit the Somerset County Law Library.
ALCOHOL
There is no
constitutional, statutory or common law right to the consumption of any quantity
of alcohol before driving. Commonwealth
v. Bittinger, 62 Som.L.J. 2006 (Cascio, P.J.).
BURDEN OF PROOF
One who challenges the constitutionality of a statute bears a heavy burden. Commonwealth v. Bittinger, 62 Som.L.J. 2006 (Cascio, P.J.).
Disagreements as to the appropriate choice of medical treatment do not rise to a constitutional violation, and an inmates right to be free from cruel and unusual punishment does not include the right to receive the treatment of one’s choice. Watson v. Salameh, 64 Som.L.J. 326 (2009) (Klementik, J.).
Material or performance is obscene if, (1) the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest; (2) the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and (3) the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
A work cannot be held obscene unless each element of the test has been evaluated independently and all three have been met. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
The first two prongs of the Miller test, whether the challenged materials appeal to the prurient interest and whether the materials depict sexual conduct in a patently offensive way, are to be judged by reference to community standards. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
For purposes of applying the contemporary community standards, the community is the state of Pennsylvania. 18 Pa.C.S.A. 5903 (b). Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
Unlike the prurient interest and patent offensiveness tests, the proper inquiry under the third prong of the Miller test is not whether an ordinary member of any given community would find serious literary, artistic, political or scientific value, but whether a reasonable person would find such value in the material, taken as a whole. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
Expert testimony is not necessary to establish contemporary community standards in regard to obscenity. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
The rationale behind the admission of comparative evidence is to allow the defendant in an obscenity case the opportunity to attempt to persuade the trier of fact that the challenged material does not exceed contemporary community standards, as represented by comparable material and against which the challenged material is judged. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
In order for there to be a rational basis for the admission of comparable evidence there must be a showing that the proffered evidence (1) is similar to the items of evidence in issue, and (2) enjoys a reasonable degree of community acceptance. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
The contemporary community standard element, necessary to establish the obscenity of lack of obscenity of published material is not concerned with the availability of the material, but rather with its acceptability. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
Properly conducted opinion surveys may be useful in gauging community standards to determine whether materials in issue are obscene. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
To be admissible, however, a public opinion poll must be relevant; it must ask questions concerning the materials involved in the case of works that are clearly akin to the charged materials. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
The government bears the burden of proving all three elements of obscenity to the satisfaction of the trier of fact, but is not constitutionally required to introduce evidence of community standards. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
The finder of fact is free to decide that the government has failed to prove that the materials, although unprotected by virtue of their "hard core" content, are patently offensive to the average member of the community. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
The First Amendment protects works, which, taken as a whole, have serious literary, artistic, political or scientific value, regardless of whether the government or a majority of people approve of the ideas that these works represent. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
In the area of freedom of speech and press the courts must always remain sensitive to any infringement of genuinely serious literary, artistic, political or scientific expression. Commonwealth v. Sale, 52 Som.L.J. 40 (1993) (Cascio)
18 Pa.C.S.A. § 4119 was held unconstitutional by the Pennsylvania Supreme Court in Commonwealth v. Omar, 981 A.2d 179 (Pa. 2009) because it “criminalized speech protected by the First Amendment to the United States Constitution.” Commonwealth v. Luftee Abdul-Waalee, 64 Som.L.J. 335 (2010) (Cascio, P.J.).
Freedom of personal choice in matters of family life and the concomitant freedom from unwarranted governmental intrusion, is a fundamental liberty interested protected by the Fourteenth Amendment. Soberdash v. Hicks, 64 Som.L.J. 267 (2009) (Geary, J.).
The decision by parents to raise their child without formally naming the child’s father is protected by the Due Process Clause of the Fourteenth Amendment. Soberdash v. Hicks, 64 Som.L.J. 267 (2009) (Geary, J.).
Constitutional issues cannot be considered and decided without detailed support and analysis. Zellem v. Zellem, 62 Som.L.J. 139 (2005) (Fike, P.J.).
Operating a vehicle on the roadways of the Commonwealth is a privilege and not a contractual, property or constitutional right. This privilege cannot be suspended, canceled or revoked by the Commonwealth without affording the licensee procedural due process. Ogline v. Commonwealth of Pennsylvania, 58 SomL.J. 188 (2000) (J. Gibson).
Due process is afforded in administrative proceedings when the accused is informed with reasonable certainty of the substance of the charges against him so that he may adequately prepare a defense. Ogline v. Commonwealth of Pennsylvania, 58 SomL.J. 188 (2000) (J.Gibson).
PennDOT's record indicating that license was suspended for violations of § 3731 of the Motor Vehicle Code and that suspensions were imposed pursuant to the Compact did not violate due process. The due process clause does not create a right to be deliberately obtuse as to the nature of a proceeding. Ogline v. Commonwealth of Pennsylvania, 58 SomL.J. 188 (2000) (J. Gibson).
Due process and notions of fundamental fairness are implicated only when a promise is made to a defendant induces his detrimental reliance in derogation of a constitutional right. Commonwealth v. McCusker, 60 SLJ 416m (August 15, 2003)(J.Cascio)
Governmental immunity applies to the local agency or governmental unit, whereas official immunity under 42 Pa.C.S.A. § 8545 applies to individuals who are employees of that local agency. Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.).
42 Pa.C.S.A.§8545 deals with official liability and reads as follows: An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing agency and subject to the limitations imposed by this subchapter. Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.).
42 Pa.C.S.A.§8501 defines "employee," in part, as "any person who is acting or who has acted on behalf of a government unit whether on a permanent or temporary basis, whether compensated or not and whether within or without the territorial boundaries of the government unit, including any volunteer fireman and any elected or appointed officer, member of a governing body or other person designated to act for the government unit. . . ." Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.).
42 Pa.C.S.A.§8541, "governmental immunity generally," reads as follows: Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.).
Exceptions to governmental immunity are provided for in 42 Pa.C.S.A. § 8542. Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.).
Under 42 Pa.C.S.A.§8542, the local agency would be liable to the Plaintiff and would not be protected by governmental immunity if: (1) Plaintiff's injury was the result of negligent conduct of a nature which is set forth in one of the eight specified categories in §8542(b); and (2) Plaintiff's injury was caused by the negligent act of an agency employee acting within the scope of his/her employment; and (3) the cause of action would exist at common law or by statutory creation if the tortfeasor did not have official or governmental status. Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.).
The defense of official immunity is addressed by 42 Pa.C.S.A.§8546. Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.).
Willful misconduct is addressed by 42 Pa.C.S.A. § 8550. Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.).
Pursuant to its constitutional authority vested in Article I, Section 11, the General Assembly has declared its intent to immunize the Commonwealth, and its officials and employees, from suit in all cases, except those in which it has specifically waived immunity. Burke v. Cambro Manufacturing, et al, 63 Som.L.J. 192 (2006) (Geary, J.).
The instances in which the General Assembly has specifically waived immunity from suit are set forth in §8522 of the Judicial Code. Burke v. Cambro Manufacturing, et al, 63 Som.L.J. 192 (2006) (Geary, J.).
The cause of action does not fall within the medical professional liability exception 42 Pa.C.S.A. § 8522 (b) (2) where the act of negligence asserted involves the inspection, maintenance, upkeep, repair, and safety of prison infirmary's x-ray table. This type of negligence is not the type of action envisioned by the medical professional liability exception. Cook v. Emergency Medical Services Assoc., et al., 60 Som.L.J. 154 (2001) (Fike, P.J.).
Where the negligence asserted against the Department of Corrections involves the inspection, maintenance, upkeep, repair, and safety of a prison infirmary's x-ray table, the claimed act of negligence falls within the parameters of the personal property exception, 42 Pa.C.S.A. § 8522 (b) (3). Cook v. Emergency Medical Services Assoc., et al., 60 Som.L.J. 154 (2001) (Fike, P.J.).
SOVEREIGN IMMUNITY – PERSONAL PROPERTY EXCEPTION
Pursuant to 42 Pa.C.S.A §8522(b)(3), in order for the personal property exception to sovereign immunity to apply the personal property itself must cause the injuries, not merely facilitate it. Burke v. Cambro Manufacturing, et al, 63 Som.L.J. 192 (2006) (Geary, J.).
While a defendant in an enforcement proceeding generally has standing to assert in his defense any claim, including the constitutionality of a statute, that challenges the authority of the state to impose its force upon him, he does not have standing to object to the constitutionality of a statute unless he is affected by the particular feature alleged to be in conflict with the constitution. Commonwealth v. Bittinger, 62 Som.L.J. 2006 (Cascio, P.J.).
In regard to the issue of standing, where a party is alleging a constitutional violation in the nature of a challenge to an illegal arrest, he or she surely has a “substantial,” “direct” and “immediate” interest in the outcome. Commonwealth v. Charlton, 63 Som. L.J. 432 (2008)(Cascio, P.J.)
Amendatory statutes are not to be construed as retroactive unless such a construction is so clear as to preclude all question as to the intention of the legislature, and such rule of statutory construction is particularly applicable when the legislation in question interferes with existing contractual obligations or antecedent rights. Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).
1 Pa.C.S.A. § 1902 reads: The singular shall include the plural, and the plural, the singular. Commonwealth v. Nathan Paul Lindeman, 61 Som.L.J. 30 (1995)(Gibson, J.)
Words and phrases shall be construed according to rules of grammar and according to their common and approved usage. Pa.R.C.P. 103(a). In Re: B.D., 62 Som. L.J. 9, 15 (2005) (Cascio, J.)
Words having a precise and well-settled legal meaning must be given that meaning when they appear in statutes unless there is a clear expression of legislative intent to the contrary. Commonwealth v. Wilikins, 62 Som. L.J. 52 (September 9, 2005) (Cascio, J.)
Words of a statute plainly expressive of an intent, not rendered dubious by the context, are not to be departed from merely because the court may be of opinion that a different provision would more effectively accomplish the general purposes the legislature had in view. Commonwealth v. Wilikins, 62 Som. L.J. 52 (September 9, 2005) (Cascio, J.)
Purely prospective application of a judicial decision is warranted is rare; the threshold question in a case presenting an issue of prospective or retroactive application of a decision is whether the decision announces a new principle of law, and if it does, the Supreme Court can choose to give the new rule prospective effect only and deviate from the general rule of retroactivity. Commonwealth v. Luftee Abdul-Waalee, 64 Som.L.J. 335 (2010) (Cascio, P.J.).
There are three main factors that are taken into account when a court deviates from the general rule of retroactivity and applies a rule purely prospectively. Commonwealth v. Luftee Abdul-Waalee, 64 Som.L.J. 335 (2010) (Cascio, P.J.).
The Omar Court did not discuss any of the factors the Pennsylvania Supreme Court considers when determining a retroactive versus prospective application and the decision will be applied retroactively, to Defendant’s benefit. Commonwealth v. Luftee Abdul-Waalee, 64 Som.L.J. 335 (2010) (Cascio, P.J.).