Warrantless Entry Authority of Game Commission Officers: Unconstitutional as Applied to Posted Open Fields, Not Facially Invalid, and Severable Under 1 Pa.C.S. § 1925

1. Introduction

Punxsutawney Hunting Club v. PGC (Pa. July 21, 2026) arises from a constitutional challenge by Punxsutawney Hunting Club, Inc. and Pitch Pine Hunting Club, Inc. (collectively, “Appellants”) against the Pennsylvania Game Commission and Officer Mark Gritzer (collectively, “Appellees”). The dispute centers on statutory provisions that authorize Game Commission personnel to enter private property “posted or otherwise,” outside of buildings, in the performance of their duties—specifically 34 Pa.C.S. §§ 303(c) and 901(a)(2).

The constitutional question is framed under Article I, Section 8 of the Pennsylvania Constitution (search and seizure), and the extent to which Pennsylvania protects privacy in “open fields” beyond a home’s curtilage. The majority (as described by Chief Justice Todd) concluded, among other things, that the statutes are facially unconstitutional. In her Concurring and Dissenting Opinion, Chief Justice Todd agrees with the majority’s broad constitutional direction—especially that Pennsylvania provides greater privacy protection than the federal baseline— but disputes the remedy: she would hold the provisions unconstitutional only as applied to the Appellants’ posted land, not invalid in all circumstances.

2. Summary of the Opinion (Chief Justice Todd)

  • Chief Justice Todd joins the majority in overruling Commonwealth v. Russo, 934 A.2d 1199 (Pa. 2007), and agrees that Article I, Section 8 can protect certain “open fields” beyond curtilage where the landowner has taken “sufficient steps to exclude intruders.”
  • She dissents from the majority’s conclusion that Sections 303(c) and 901(a)(2) are facially unconstitutional. In her view, the statutes have constitutional applications—particularly where an officer enters “unposted land” (i.e., land with no affirmative demonstration of a privacy expectation).
  • She concludes the statutes are unconstitutional as applied to the Appellants’ posted property, but are not invalid in all circumstances because entry onto unposted land can remain permissible.
  • She further explains that even if the application to posted lands is invalid, Pennsylvania’s severability statute, 1 Pa.C.S. § 1925, requires analysis of whether the unconstitutional application can be severed; she would find severability satisfied.

3. Analysis

A. Precedents Cited

1) Commonwealth v. Russo, 934 A.2d 1199 (Pa. 2007)

Chief Justice Todd endorses the majority’s decision to overrule Commonwealth v. Russo. While her separate writing does not re-litigate Russo’s details, her agreement signals that Russo is viewed as incompatible with the majority’s and her own understanding of Pennsylvania’s distinct privacy tradition under Article I, Section 8—particularly as it relates to officer entry onto private land beyond the home.

2) Commonwealth v. Shifflett, 335 A.3d 1158 (Pa. 2025)

Commonwealth v. Shifflett supplies the doctrinal test that drives Chief Justice Todd’s disagreement with the majority’s remedy: a statute is facially unconstitutional only where “no set of circumstances exists under which the statute would be valid.” Shifflett also distinguishes facial from as-applied challenges, framing her conclusion that the entry provisions can be validly applied to at least some lands (unposted lands), and therefore cannot be facially invalid.

3) Commonwealth v. Hunte, 337 A.3d 483 (Pa. 2025) and City of Los Angeles v. Patel, 576 U.S. 409 (2015)

The majority relied on Commonwealth v. Hunte to support facial invalidation; Chief Justice Todd argues Hunte is distinguishable. In Hunte, the Court held 75 Pa.C.S. § 3755 (warrantless blood draws for DUI-related emergency treatment) facially unconstitutional under the Fourth Amendment because any constitutionally valid blood draw would occur under exigent circumstances or a warrant, i.e., under authority independent of the statute—making those scenarios “irrelevant” to facial analysis, quoting City of Los Angeles v. Patel.

Todd’s key point: unlike the blood-draw statute in Hunte, Sections 303(c) and 901(a)(2) can be applied constitutionally under their own terms—because, under the majority’s own articulation, Article I, Section 8 protection extends to open fields only where the owner took “sufficient steps to exclude intruders.” Thus, a warrantless entry onto unposted land is, in her view, a constitutional application that occurs pursuant to the statutes, defeating facial invalidity under Shifflett’s “no set of circumstances” test.

4) Thomas v. Schaeffer, 2025 WL 2581840 (M.D. Pa. filed Sept. 5, 2025)

Chief Justice Todd uses Thomas v. Schaeffer as persuasive authority illustrating how Hunte should be limited. Thomas rejected a facial attack on a similar Fish and Boat Code provision, reasoning that even if certain entries (e.g., into curtilage) violate the Fourth Amendment, the statute still has constitutional applications (e.g., entries into unprotected open fields). Todd acknowledges Thomas is not binding and involved the Fourth Amendment, but finds its facial vs. as-applied framework directly analogous.

5) 1 Pa.C.S. § 1925; Nextel Communications of Mid-Atlantic, Inc. v. Commonwealth, Dep't of Revenue, 171 A.3d 682 (Pa. 2017); Robinson Twp. v. Commonwealth, 147 A.3d 536 (Pa. 2016)

Chief Justice Todd emphasizes that 1 Pa.C.S. § 1925 requires courts to consider severability not only when a statutory “provision” is invalid, but also when an “application thereof to any person or circumstance is held invalid.” She cites Nextel Communications of Mid-Atlantic, Inc. v. Commonwealth, Dep't of Revenue for the proposition that severability analysis is mandated even where invalidation occurs via an as-applied challenge. She relies on Robinson Twp. v. Commonwealth for the two grounds that can overcome the presumption of severability: (1) inseparable connection/legislative dependence, or (2) the remainder is incomplete/incapable of execution consistent with intent.

6) Commonwealth v. Batts, 163 A.3d 410 (2017) (abrogated on other grounds by Jones v. Mississippi, 593 U.S. 98 (2021))

Todd cites Commonwealth v. Batts as an example of severing an unconstitutional portion/application while leaving the remainder operative. She notes Batts was later affected by Jones v. Mississippi on other grounds, but uses Batts for the severability methodology: partial invalidity does not require total collapse where the valid remainder can function and appears consistent with legislative intent.

B. Legal Reasoning

  1. Scope of Article I, Section 8 as to open fields. Chief Justice Todd accepts the majority’s position that Pennsylvania’s Article I, Section 8 may protect “open fields” beyond curtilage when a landowner has demonstrated a reasonable and legitimate expectation of privacy by taking “sufficient steps to exclude intruders.” This formulation is essential to her dissent: it implies that protection is not automatic for every open field, but depends on affirmative exclusionary measures.
  2. Facial invalidation is inappropriate if any constitutional application exists. Applying Shifflett, she reasons that because the statutes can be constitutionally applied to unposted land, they cannot be facially unconstitutional. The “posted or otherwise” language does not make every application unconstitutional once the Court recognizes a category of land (unposted open fields) where Section 8 protection may not attach under the majority’s own limitations.
  3. Why Hunte does not control. She distinguishes Hunte on the ground that, there, any constitutionally permissible blood draw would proceed under exigency or warrant authority independent of the statute, meaning the statute was constitutional only when “not actually applied.” Here, entry onto unposted land is—on her view—an actual statute-authorized application that is constitutional, so Hunte’s logic does not compel facial invalidation.
  4. Severability even for unconstitutional “applications.” She reads 1 Pa.C.S. § 1925 to require courts to ask whether the invalid application (entry onto posted lands like Appellants’) can be severed while leaving intact lawful applications (entry onto unposted lands). Against the suggestion that severance requires pinpointing offending words, she stresses that § 1925 expressly covers invalid “application[s]” and thus contemplates functional severance by circumstance.
  5. Legislative intent and executability. Under Robinson Twp., she finds no indication the General Assembly would have refused to authorize entry onto unposted land if it could not authorize entry onto posted land; and she finds the remaining authority (unposted entry) still executable and coherent.

C. Impact

If Chief Justice Todd’s approach were to guide future cases, it would tend to:

  • Constrain facial challenges to Game Commission (and similar) entry statutes by emphasizing that where any constitutional applications remain (e.g., unposted open fields), courts should prefer as-applied rulings.
  • Increase attention to landowner conduct (posting, fencing, signage, other exclusion steps) as a constitutional trigger under Article I, Section 8 for open-field privacy—potentially encouraging regulated entities and landowners to clarify boundaries and expectations.
  • Elevate severability analysis as a routine second step after finding an unconstitutional application, potentially preserving statutory enforcement tools in narrower, constitutionally permissible settings rather than invalidating entire grants of authority.
  • Influence parallel regulatory regimes (e.g., Fish and Boat enforcement) by reinforcing the idea that “entry authority” statutes may survive facial attack if they can operate constitutionally outside protected areas (curtilage, and—under Pennsylvania law as articulated—posted open fields).

4. Complex Concepts Simplified

  • Facial vs. as-applied challenge: A facial challenge claims a law is invalid in all its applications (“no set of circumstances” where it can be valid). An as-applied challenge claims the law is unconstitutional in the specific way it was used against a particular person in particular facts.
  • Curtilage: The area immediately surrounding a home (like a yard or area near a cabin) treated as part of the home for search-and-seizure purposes; it generally receives the highest protection.
  • Open fields: Private land beyond the home and curtilage (woods, fields). Federal doctrine often treats open fields as less protected; this case (per the majority as referenced by Todd) recognizes greater Pennsylvania protection where owners take steps to exclude intruders.
  • Severability (1 Pa.C.S. § 1925): When part of a statute—or its application in certain circumstances—is unconstitutional, courts presume the rest can remain in force unless the valid and invalid parts are inseparable or the remainder cannot function as the legislature intended.

5. Conclusion

Chief Justice Todd’s concurring and dissenting opinion accepts the major constitutional shift described by the majority—overruling Commonwealth v. Russo and recognizing stronger Article I, Section 8 protections for certain privately owned open fields—yet rejects the majority’s broader remedial holding that 34 Pa.C.S. §§ 303(c) and 901(a)(2) are facially unconstitutional. Anchored in Commonwealth v. Shifflett, she insists that because the statutes can be constitutionally applied to unposted land, facial invalidation is doctrinally improper. Finally, applying 1 Pa.C.S. § 1925 and cases such as Nextel Communications of Mid-Atlantic, Inc. v. Commonwealth, Dep't of Revenue and Robinson Twp. v. Commonwealth, she would sever the unconstitutional application (to posted lands like Appellants’) while preserving lawful applications. The opinion thus foregrounds a narrower, severability-driven approach to constitutional remedies in the regulation-and-enforcement context.