[J-44-2020] [MO: Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 69 MAP 2019
:
Appellant : Appeal from the Order of the
: Superior Court at No. 1091 MDA
: 2018 dated March 7, 2019 Affirming
v. : in Part and Reversing in Part the
: Order of the Franklin County Court
: of Common Pleas, Criminal
BETH ANN MASON, : Division, at No. CP-28-CR-0002352-
: 2017 dated June 26, 2018.
Appellee :
: ARGUED: May 19, 2020
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: March 25, 2021
I join the majority opinion in full. I feel compelled, however, to address several
aspects of Justice Wecht’s dissenting position that I view differently. In my learned
colleague’s view, “this Court’s Wiretap Act decisions have strayed impermissibly from the
statute’s unambiguous language.” Dissenting Opinion (Wecht, J.) at 1. Justice Wecht
asserts, as he did in his concurring opinion in PSP v. Grove, 161 A.3d 877, 902-07 (Pa.
2017) (Wecht, J., concurring), that “for over twenty years now this Court has mistakenly
applied the ‘reasonable expectation of privacy’ test — a standard used to determine
whether a ‘search’ has occurred under the Fourth Amendment — in matters arising under
the Wiretap Act.” Dissenting Opinion (Wecht, J.) at 2. See 18 Pa.C.S. §5702 (defining
an “oral communication” as “[a]ny oral communication uttered by a person possessing an
expectation that such communication is not subject to interception under circumstances
justifying such expectation”). Discerning no justification for what he views as a conflation
of the statutory and constitutional standards, Justice Wecht declares the time has come
for us to expressly repudiate its originating source: Agnew v. Dupler, 717 A.2d 519, 523
(Pa. 1998) (interpreting Section 5702 of the Wiretap Act and resolving that “one cannot
have an expectation of non-interception absent a finding of a reasonable expectation of
privacy”). Dissenting Opinion (Wecht, J.) at 2, 5. The majority correctly responds by
pointing out that no one has asked us to take that substantial step in this appeal. Majority
Opinion at 10 n.9. In my view, this explanation supplies reason enough not to upend, sua
sponte, longstanding precedent of this Court. But a few other reasons are also worth
mentioning.
There is, for starters, the doctrine of stare decisis. For whatever reasons, issues
implicating our adherence (or not) to prior precedent seem to be cropping up more and
more in this Court’s jurisprudence as of late. See, e.g., Commonwealth v. Alexander, 243
A.3d 177 (Pa. 2020) (overruling Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), and its
adoption of the federal automobile exception). And, rather regrettably, calls to break away
from some of our earlier decisions increasingly have been prompted not by the litigants
themselves, but by members of this Court acting sua sponte. See, e.g., Commonwealth
v. Reid, 235 A.3d 1124, 1160-61, 1168 (Pa. 2020) (declining the dissenting justices’
requests to overrule sua sponte Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa.
2002) (interpreting the new constitutional right exception to the PCRA’s timebar),
Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998) (declaring the PCRA is jurisdictional
in nature), and their progeny); Commonwealth v. Le, 208 A.3d 960, 976 n.17 (Pa. 2019)
(rejecting the dissent’s suggestion that we should overturn our decision in Commonwealth
v. Smith, 131 A.3d 467 (Pa. 2015), where the appellant had not asked that we do so).
My own views on stare decisis and my corresponding discomfort with the Court’s
at-times inconsistent treatment of those principles are now well documented, so I will not
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repeat them again here. See, e.g., Alexander, 234 A.3d at 211-15 (Dougherty, J.,
dissenting). It is enough to say that, in my respectful view, where we must weigh the
heavy decision whether to overrule a prior precedent — especially one that has been
relied upon for decades, like Agnew — there must be a special justification for changing
course. See id. This need for a special justification persists whether the case turns on
statutory, constitutional, or some other grounds.1
Where, however, the relevant issue in a case turns exclusively on an interpretation
of some statutory text, the bar for overruling an earlier precedent is almost always higher.
Not only do principles of stare decisis automatically assume greater force in a case like
that (because the legislature can prospectively amend the statute it if disagrees with our
interpretation), but, occasionally, there is one particular statutorily-imposed presumption
that comes into play and raises the bar higher still: 1 Pa.C.S. §1922(4). This presumption
instructs that “when a court of last resort has construed the language used in a statute,
the [legislature] in subsequent statutes on the same subject matter intends the same
construction to be placed upon such language.” 1 Pa.C.S. §1922(4). See, e.g., PSP,
Bureau of Liquor Control Enf’t v. Jet-Set Rest., LLC, 191 A.3d 817, 823 (Pa. 2018) (“we
may presume that, where this Court has previously interpreted certain statutory language,
and that language is retained in subsequent amendments to the same statute, the
1 To be clear, I do not here advocate for “everlasting adherence to Agnew’s” interpretation.
Dissenting Opinion (Wecht, J.) at 8. Nor have I remotely implied a belief that stare decisis
presents an “absolute rule[,]” either with respect to this case or any other. Id. at 7. But,
in his effort to demonstrate that I have supposedly “miss[ed] the point” of his argument,
id. at 6, Justice Wecht actually misses mine. I do not doubt that there may be a “mountain
of decisions overturned by courts every year[.]” Id. at 7. The point, though, is that we
ought not to overrule prior precedent sua sponte, without any request by or advocacy
from the parties. Thus, while I acknowledge there is facial appeal to Justice Wecht’s
argument that the Agnew Court’s interpretation is wrong, no litigant has yet had an
opportunity to provide a contrary argument. We simply cannot — or should not —
overrule precedent under such circumstances.
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legislature approved of and intended to uphold that interpretation”); Commonwealth v.
Wanamaker, 296 A.2d 618, 624 (Pa. 1972) (“It is well settled that the failure of the
legislature, subsequent to a decision of this Court in construction of a statute, to change
by legislative action the law as interpreted by this Court creates a presumption that our
interpretation was in accord with legislative inten[t].”) (internal quotations and citation
omitted).
The post-Agnew legislative history underlying Section 5702 of the Wiretap Act
highlights the significance of the Section 1922(4) presumption. For example, I note that
in the twenty-two-year span since we decided Agnew, the legislature has amended
Section 5702 of the Wiretap Act four times, and yet it has never once seen fit to statutorily
alter Agnew’s interpretation of the term “oral communication.” See 2002, Dec. 9, P.L.
1350, No. 162, §3; 2012, Oct. 25, P.L. 1634, No. 202, §1; 2017, July 7, P.L. 304, No. 22,
§1; 2020, June 5, P.L. 246, No. 32, §2. Perhaps most telling of all, shortly after we issued
our decision in Grove in 2017, the legislature specifically amended the statute’s definition
of “oral communication,” but it left completely intact the portion of the statute interpreted
in Agnew, i.e., the phrase “uttered by a person possessing an expectation that such
communication is not subject to interception under circumstances justifying such
expectation.” 18 Pa.C.S. §5702. The legislature’s decision in this regard might strongly
suggest it actually found Agnew’s interpretation of Section 5702 to be consistent with
legislative intent. See, e.g., 1 Pa.C.S. §1922(4); Jet-Set, supra; Wanamaker, supra.
Of course, I recognize this is not the only conceivable conclusion that can be drawn
from the circumstances. One might argue the legislature simply didn’t notice we “got it
wrong” in Agnew; that argument has (unfortunately) prevailed in other cases where
members of this Court endeavored to overrule prior statutory interpretations with which
they disagreed. See Commonwealth v. Small, 238 A.3d 1267, 1285 (Pa. 2020)
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(overruling precedent establishing the “public record presumption” to the PCRA and
declaring application of the Section 1922(4) presumption is discretionary, not mandatory,
in part because the legislature allegedly is ill-equipped to “detect our error[s]” and
“marshal the resources to correct [them]”).2 But it’s highly questionable in my view
whether that argument can bear serious scrutiny here. Justice Nigro raised precisely the
same objection in Agnew that Justice Wecht now advances — meaning the legislature
has had more than two decades to consider and, if necessary, correct it. And it’s not
exactly as if the issue has disappeared since then. As Justice Wecht recognizes, federal
courts have continued to acknowledge the divergent interpretations. See Kelly v.
Borough of Carlisle, 622 F.3d 248, 257 (3d Cir. 2010) (observing Agnew “squelched the
distinction developing in some lower court cases between a reasonable expectation of
non-interception and an expectation of privacy”); Peruto v. Roc Nation, 385 F.Supp.3d
384, 388 n.6 (E.D. Pa. 2019) (deeming Justice Nigro’s concurrence in Agnew
“persuasive” but explaining it was bound by the Agnew majority’s position). There is also
Justice Wecht’s recent and thorough exposition of the issue in Grove. See Grove, 161
A.3d 877 at 902-06 (Wecht, J., concurring). To suggest these various judicial opinions
have all gone unnoticed by the legislature might appear to some as foolhardy.3
2 Justice Wecht cites Small and asserts that “[i]t is well-settled that the burden of
correcting our own errors does not rest entirely on the shoulders of the General
Assembly.” Dissenting Opinion (Wecht, J.) at 8-9. But, contrary to this characterization
of the matter as being “well-settled,” I note Small was decided just months ago, it
addressed the Section 1922(4) presumption issue only tangentially, and the opinion cited
no caselaw to support what appears to be a first-of-its-kind decision declining to apply the
presumption on the basis of the legislature’s purported impotence.
3 There are countless examples, new and old, in which the legislature has proven just
how adept it can be when it truly disagrees with a statutory interpretation rendered by this
Court. See, e.g., Commonwealth v. Forsythe, 217 A.3d 273, 278-79 (Pa. Super. 2019)
(“Just over a month after the Supreme Court issued its decision in [Commonwealth v.
Hlubin, 208 A.3d 1032, 1052 (Pa. 2019) (holding Section 8953(a)(3) of the Municipal
Police Jurisdiction Act (MPJA) does not authorize police officers to cross jurisdictional
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The same could arguably be said of any suggestion the legislature has been
unable to “marshal the resources” to amend the statute. Small , 238 A.3d at 1285. As
noted, the legislature has been anything but complacent with respect to the Wiretap Act,
having repeatedly amended it over the years, most recently in 2020. Yet despite these
occurrences — and even in the face of multiple, express invitations to overrule Agnew —
the legislature has held firm for more than two decades, finding no reason to tinker with
the Agnew Court’s interpretation of the term “oral communication.” By repeatedly
amending Section 5702 and declining each and every time to alter the text this Court
interpreted in Agnew, there is a strong argument to be made that, at least from the
legislature’s perspective, Agnew was correctly decided.
I raise these points, and use the circumstances of Agnew as an example, to
underscore the high bar that must be met before we rush to overrule longstanding
precedent of this Court, particularly in cases involving statutory interpretation. And while
I acknowledge there is room for healthy debate over when this Court should elect to
invoke the Section 1922(4) presumption, my larger point is that the parties should be
afforded the chance to weigh in on the matter when possible.4 To do otherwise deprives
the Court of potential advocacy demonstrating that a prior decision interpreting a statute
lines to participate in pre-arranged sobriety checkpoints)], the legislature amended, inter
alia, [S]ection 8953(a)(3)” with the “explicit[] inten[t] to reverse the Supreme Court’s
interpretation of the MPJA in Hlubin.”).
4 For instance, in Justice Wecht’s view, the presumption “should control only when there
are legitimate reasons to assume that the General Assembly’s inaction holds interpretive
significance.” Dissenting Opinion (Wecht, J.) at 9. Respectfully, I do not favor such a
requirement, as it allows a subjective assessment of what legislative history is “significant”
and what is not, effectively undermining the value of the presumption. To me, it makes
more sense to simply allow Section 1922(4) to operate as it was intended — as a
presumption that can be rebutted with objective evidence. And while I appreciate Justice
Wecht’s effort to provide such evidence here to support his view that the presumption
should not apply relative to Agnew, again, the real issue is that the parties have not had
an opportunity to supply their own, potentially contradictory proofs.
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— even one that appears wrong on its face — might have actually been in accord with
legislative intent, rending judicial correction both unnecessary and improper.
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