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.).

 

AMERICANS WITH DISABILITIES ACT (ADA)

 

No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

The ADA applies to the Pennsylvania Department of Correction, because it qualifies as a “public entity;” individuals have no liability under the ADA, because they are not “public entities.” Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

In order to set forth a cause of action under the ADA, an individual must allege that a public entity, i.e., the DOC, discriminated against and/or denied benefits to him or her because of his or her disability. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

Where a plaintiff sets forth alleged ADA violations against only individuals – and not public entities – in his complaint, the court cannot reach the merits of his/her claim. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, 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.).

 

CIVIL RIGHTS ACTION – CIVIL CONSPIRACY

 

In order to establish a conspiracy claim in the form of a civil rights action, the plaintiff must allege (1) facts sufficient to show the existence of a conspiracy involving state action, and (2) the he suffered deprivation of civil rights in furtherance of the conspiracy. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

The plaintiff must make specific factual allegations of combination, agreement, or understanding among all or between any of the defendants to plot, plan or conspire to carry out the alleged chain of events. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

The allegations of conspiracy must be particular as to (1) the period of the conspiracy, (2) the object of the conspiracy, and (3) certain other actions of the conspirators to achieve the unlawful purpose. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

The plaintiff cannot merely rely on subjective suspicions or unsupported speculation. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

CIVIL RIGHTS ACTION – PERSONAL INVOLVEMENT

 

In order to properly plead a civil rights action, under 42 U.S.C. § 1983, the plaintiff must allege that: (1) a person deprived him of a federal right; and (2) the person who deprived him of that right acted under color of state law. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

The plaintiff must demonstrate that the individual defendant(s) was/were personally involved in, had actual knowledge of, and/or acquiesced in the conduct of which plaintiff complains. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

Section 1983 liability may not be premised on the doctrine of respondeat superior, i.e., liability may not be imposed on a supervisor by virtue of his/her position. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

The failure of a prison official to act favorably on an inmate’s grievance is not itself a constitutional violation, and where there is no evidence presented that Defendant(s) participated in the incidents giving rise to an inmate’s misconduct(s), but he/she merely upheld the decisions of the examiner at a misconduct hearing, Plaintiff’s claims against such Defendant(s) must be dismissed for lack of personal involvement. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

CIVIL RIGHTS ACTION – RETALIATION

 

A prison retaliation claim requires proof that the inmate engaged in constitutionally protected conduct, prison officials took adverse action, and the protected conduct was a substantial or motivating factor for the action. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

The prisoner bears the burden of proof to disprove a legitimate penological goal as well as prove the other required elements of a retaliation claim, i.e., he or she must demonstrate by a preponderance of the evidence he was retaliated against for exercising his constitutional rights and the retaliatory action did not advance legitimate penological goals. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

Where the prisoner is not engaging in constitutionally protected activities, any subsequent remedial actions on the part of the prison officials cannot amount to retaliation. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

DUE PROCESS – PROPERTY RIGHTS

 

Although the rights of inmates in state institutions may be diminished by the needs and exigencies of the institutional environment, prisoners retain the protection of the Due Process Clause under the Fourteenth Amendment. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

The United States Constitution does not require strict adherence to administrative regulations and guidelines but, instead, only mandates compliance with minimal federal due process standards, and only those regulations that impose atypical sanctions and significant hardships when compared to normal incidents of prison life implicate the Constitution. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

Reasonable prison regulations regarding the quantity and type of property that inmates may possess do not violate due process guarantees. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

State prison administrators are afforded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

Even though a Department of Corrections Policy contains an exception for “no-longer permitted items” of personal property, an inmate cannot gain a Constitutional right to such property where the Policy specifically states that it “does not create rights in any person.” Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

EIGHTH AMENDMENT

 

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.).

 

Although Eighth Amendment scrutiny applies to the conditions of inmate confinement, it neither mandates comfortable prisons nor tolerates inhuman ones. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

Prisoner officials are prohibited from using excessive physical force and have a duty to provide humane conditions of confinement, ensuring that inmates receive adequate food, clothing, shelter and medical care, but prison conditions can be “restrictive and even harsh” without violating the Eighth Amendment. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

Where a plaintiff alleges neither use of physical force nor the denial of medically necessary accommodations, no infliction of cruel and unusual punishment has occurred. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

EQUAL PROTECTION

 

The Equal Protection Clause of the Fourteenth Amendment only requires that all persons similarly situated should be treated alike. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

So long as the challenged governmental action does not burden “fundamental rights” or make a suspect or quasi-suspect classification, it does not violate the Equal Protection Clause so long as the action is rationally related to a legitimate governmental interest. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

Where the plaintiff has neither alleged that prison officials’ actions infringed on a fundamental right nor that he was being treated differently that other similarly situated prisoners, the governmental action is reviewed under the rational basis analysis. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

In the prison setting, particularly, the rational basis analysis is colored by deference to prison authority in the administration of prison matters, which most often concerns the need to maintain order and discipline among inmates. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

Where the plaintiff fails to set forth evidence that he/she has been deprived of a fundamental right and/or has been subjected to treatment different than similarly situated inmates, the court will defer to the prison’s authority. Henderson v. Pa. Dept. of Corr., et al., 65 Som.L.J. 172 (2013) (Klementik, J.).

 

FIRST AMENDMENT - OBSCENITY

           

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)

 

FIRST AMENDMENT – RIGHT OF ACCESS TO COURTS

 

Prison inmates have a fundamental constitutional right of access to courts under the First Amendment, and states are required to shoulder the affirmative obligation to assure all prisoners meaningful access to the courts. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

In order to show a violation of this right, the inmate must establish “actual injury,” i.e., that the shortcomings of the prison authority hindered the inmate’s efforts to pursue a legal claim. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

The injury requirement is not satisfied by any type of frustrated legal claim, but only claims relating to direct appeals from criminal convictions involving incarceration, habeas petitions and civil rights actions under 42 U.S.C. § 1983 to vindicate basic constitutional rights. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

To establish a relevant actual injury, the inmate must show that any alleged shortcomings directly hindered his efforts to pursue a legal claim, e.g., that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

Prison officials are afforded deference ensuring that inmates have a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

In an access to courts claim, the complaint must describe (1) the underlying cause of action, whether anticipated or lost, (2) the official acts frustrating the litigation, and (3) a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought, so as to give fair notice to the defendant. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

FREEDOM OF SPEECH

 

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.).

 

FUNDAMENTAL LIBERTY INTEREST – FAMILY LIFE

 

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.).

 

FUNDAMENTAL PROPERTY INTEREST – PRISONER’S LEGAL WORK

 

Reasonable prison regulations regarding the quantity and type of property that inmates may possess do not violate due process guarantees. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

State prison administrators should be afforded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

If the state prison can make a classification by defining the property in which an incarcerated inmate may gain an interest after his incarceration and the inmate is not permitted to acquire certain items post-incarceration, then no property interest protectable by the due process clause is created.  Thus, the case is not a “property interest/due process” case but, rather, a “conditions of confinement” case. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

Where an inmate’s legal work is found in another inmate’s cell during a routine search and confiscated, the case is not classified as a “property interest/due process” case.  Instead, it is analyzed as a “conditions of confinement” case. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

PRESENTATION OF ISSUES

 

Constitutional issues cannot be considered and decided without detailed support and analysis.  Zellem v. Zellem, 62 Som.L.J. 139 (2005) (Fike, P.J.).

 

PROCEDURAL DUE PROCESS

 

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)

 

PROCEDURAL DUE PROCESS – MISCONDUCT HEARINGS

 

Although the rights of inmates in state institutions may be diminished by the needs and exigencies of the institutional environment, prisoners retain the protection of the Due Process Clause under the Fourteenth Amendment, i.e., they may not be deprived of life, liberty or property without due process of law. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

Inmates are entitled to procedural due process protections in disciplinary proceedings: (1) receipt of no less than twenty-four (24) hours advance written notice of the claimed violations; (2) a written statement of the fact finder as to the evidence relied upon and the reasons for the disciplinary actions taken; (3) allowance to call witnesses and present documentary evidence in his/her defense, when permitting him/her to do so will not be unduly hazardous to institutional safety or correctional goals; (4) allowance to seek aid of a fellow inmate or staff member; and (5) disciplinary hearings must be impartial. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

Confrontation and cross-examination are not constitutional requirements in a prison disciplinary hearing. Sloan v. Macintyre, et al. 65 Som. L.J. 216 (2013)(Klementik, J.)

 

SOVEREIGN IMMUNITY – GENERALLY

 

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.).

 

SOVEREIGN IMMUNITY – MEDICAL PROFESSION LIABILITY EXCEPTION

 

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.).

 

STANDING

 

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.)

  

STATUTORY CONSTRUCTION

 

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.).