[J-82-2021] [MO: Baer, C.J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

PENNSYLVANIA ENVIRONMENTAL 

DEFENSE FOUNDATION,

Appellant

v.

COMMONWEALTH OF PENNSYLVANIA, 

AND TOM WOLF, IN HIS OFFICIAL 

CAPACITY AS GOVERNOR OF 

PENNSYLVANIA,

Appellees

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No. 65 MAP 2020

Appeal from the Order of the 

Commonwealth Court at No. 358 

MD 2018 dated October 22, 2020.

ARGUED: December 8, 2021

CONCURRING AND DISSENTING OPINION

JUSTICE DOUGHERTY DECIDED: August 5, 2022

I agree with the Majority Opinion in large part: I fully join Sections III.B and III.E; I 

agree Pennsylvania trust law allows trustees to use trust funds to pay for reasonable costs 

incurred in administering the trust, see Majority Opinion at 16; and I agree the 

“‘legislature’s diversion of funds from the Lease Fund (and from the DCNR’s exclusive 

control), does not, in and of itself, constitute a violation of Section 27,’” id. at 24, quoting

Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911, 939 

(Pa. 2017) (“PEDF II”). But respectfully, in light of this Court’s decisions in PEDF II and 

PEDF v. Commonwealth, 255 A.3d 289 (Pa. 2021) (“PEDF V”), I cannot agree that 

Sections 104(P) and 1601 of the General Appropriations Acts of 2017 and 2018, and 

Sections 1601.2-E(b) and (c) of the Fiscal Code are facially constitutional. 
[J-82-2021] [MO: Baer, C.J.] - 2

In PEDF II, we held Article I, Section 27 of the Pennsylvania Constitution 

“establishes a public trust, pursuant to which the natural resources are the corpus of the 

trust, the Commonwealth[] is the trustee, and the people are the named beneficiaries.” 

161 A.3d at 931-32. We adopted this principle following the sound plurality reasoning set 

forth in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013):

As trustee, the Commonwealth is a fiduciary obligated to comply with 

the terms of the trust and with standards governing a fiduciary’s conduct.

The explicit terms of the trust require the government to “conserve and 

maintain” the corpus of the trust. The plain meaning of the terms 

conserve and maintain implicates a duty to prevent and remedy the 

degradation, diminution, or depletion of our public natural resources. As 

a fiduciary, the Commonwealth has a duty to act toward the corpus of 

the trust — the public natural resources — with prudence, loyalty, and 

impartiality.

Id. at 932, quoting Robinson Township, 83 A.3d at 956-57 (quoting PA. CONST. art. I, §27). 

Considering those general duties, the PEDF II Court held:

Pennsylvania’s environmental trust thus imposes two basic duties on the 

Commonwealth as the trustee. First, the Commonwealth has a duty to 

prohibit the degradation, diminution, and depletion of our public natural 

resources, whether these harms might result from direct state action or 

from the actions of private parties. Second, the Commonwealth must 

act affirmatively via legislative action to protect the environment. 

Id. at 933 (citation omitted).

We then evaluated provisions of the Fiscal Code in light of those articulated duties. 

Section 1602-E provided:

Notwithstanding any other provision of law and except as provided in 

section 1603-E, no money in the fund from royalties may be expended 

unless appropriated or transferred to the General Fund by the General 

Assembly from the fund. In making appropriations, the General 

Assembly shall consider the adoption of an allocation to municipalities 

impacted by a Marcellus well.

72 P.S. §1602-E. Next, Section 1603-E allowed for a maximum of $50,000,000 to be 

appropriated to the Department of Conservation and Natural Resources (“DCNR”), and 

merely specified the DCNR “shall give preference to the operation and maintenance of 
[J-82-2021] [MO: Baer, C.J.] - 3

State parks and forests.” 72 P.S. §1603-E. We held these provisions were facially 

unconstitutional because they “lack[ed] any indication that the Commonwealth is 

required to contemplate, let alone reasonably exercise, its duties as the trustee of the 

environmental public trust created by the Environmental Rights Amendment.” PEDF II, 

161 A.3d at 937 (emphasis added). 

We further explained Section 1602-E was facially unconstitutional because it 

moved money to the General Fund without limitation on its use, and it “merely require[d] 

the General Assembly to ‘consider’ allocating these funds to municipalities impacted by 

a Marcellus well.” Id. Section 1603-E was facially unconstitutional because it imposed a 

maximum of “‘up to $50,000,000’” for appropriations to the DCNR from the Lease Fund

and only required the DCNR to “‘give preference to the operation and maintenance of 

State parks and forests’ rather than to conservation purposes.” Id. at 937-38, quoting 72 

P.S. §1603-E. Thus, we reiterated, “there [was] no indication that the General Assembly 

considered the purposes of the public trust or exercised reasonable care in managing 

the royalties in a manner consistent with its Section 27 trustee duties.” Id. at 938 

(emphasis added). We elaborated the provisions “plainly ignore[d] the Commonwealth's 

constitutionally imposed fiduciary duty to manage the corpus of the environmental public 

trust for the benefit of the people to accomplish its purpose—conserving and maintaining 

the corpus by, inter alia, preventing and remedying the degradation, diminution[,] and 

depletion of our public natural resources[,]” because they “permit[ted] the trustee to use 

trust assets for non-trust purposes, a clear violation of the most basic of a trustee’s 

fiduciary obligations.” Id. (emphasis added).

Because statutes relating to the trust cannot “permit the trustee to use trust assets 

for non-trust purposes,” such laws must plainly indicate both that the relevant trustee “is 

required to contemplate[ and] reasonably exercise” its fiduciary duties. Id. at 937-38
[J-82-2021] [MO: Baer, C.J.] - 4

(emphasis added). Section 1602-E was not saved by the fact it “merely require[d] the 

General Assembly to ‘consider’” acting toward a trust purpose. Id. Mere consideration is 

insufficient — trustees must also affirmatively “exercise[ ] reasonable care” in 

administering the trust. See id. And we held Section 1603-E was likewise deficient 

despite the fact it required the DCNR to give preference to the operation and maintenance

of State forests and parks (which, depending on the DCNR’s consequent choices, could

have resulted in — but did not require — the use of trust assets for trust purposes). See 

id.

In PEDF V, we applied PEDF II to find two more provisions of the Fiscal Code 

unconstitutional. See 255 A.3d at 314. We held income generated from bonuses, rental 

payments, and penalty interest must be returned to the corpus of the trust. See id. Once 

we reached that conclusion, we determined Fiscal Code Sections 1604-E and 1605-E

and Section 1912 of the Supplemental General Appropriations Act of 2009 were facially 

unconstitutional. See id. Those provisions simply directed the transfer of specific 

amounts of money from the Lease Fund to the General Fund.1 Thus, in both PEDF II and 

PEDF V, this Court struck down statutes that permitted the Commonwealth to spend trust 

funds without prohibiting the expenditure of trust funds for non-trust purposes. Even 

 

1 Section 1604-E provided: “Notwithstanding section 1603-E or any other provision of law, 

in fiscal year 2009-2010 the amount of $60,000,000 shall be transferred from the fund to 

the General Fund.” 72 P.S. §1604-E. Section 1605-E similarly stated: 

(a) Fiscal year 2010-2011.--Notwithstanding section 1603-E or any other 

provision of law, in fiscal year 2010-2011, the amount of $180,000,000 shall 

be transferred from the fund to the General Fund. 

(b) Fiscal year 2014-2015.--Notwithstanding section 1603-E or any other 

provision of law, in fiscal year 2014-2015, the amount of $95,000,000 shall 

be transferred from the fund to the General Fund.

72 P.S. §1605-E. Section 1912 likewise provided: “The sum of $143,000,000 is 

transferred from the Oil and Gas Lease Fund to the General Fund.” Act of Oct. 9, 2009, 

P.L. 779, No. 10A, §1912.
[J-82-2021] [MO: Baer, C.J.] - 5

though the Commonwealth was a trustee charged with administering the trust, the 

statutes were not saved by the fact the Commonwealth was essentially given the option

to act pursuant to its fiduciary duties under the legislative enactments. 

The statutes at issue in the current litigation are similarly infirm. Starting with the 

provisions of the General Appropriations Acts of 2017 and 2018, Sections 104(P) and 

1601 fail to facially indicate the General Assembly must “reasonably exercise[ ] its duties 

as the trustee of the environmental public trust[.]” PEDF II, 161 A.3d at 937. Instead, the

provisions allow the appropriation of Lease Fund money to the DCNR for general 

operations purposes, including for expenses such as compensation, travel expenses, and 

purchase or rental of goods and services. See §§104(P), 1601, Act of July 11, 2017, P.L. 

1279; §§104(P), 1601, Act of June 22, 2018, P.L. 1203. After aptly explaining that trust 

law generally permits trustees to incur reasonable costs in the administration of the trust, 

the majority holds these specific appropriations comply with Article I, Section 27 because 

the DCNR is the “cabinet-level advocate for our State forest and park lands, as well as 

other natural resources” and its “primary mission is, inter alia, ‘to maintain, improve and 

preserve State parks [and] to manage State forest lands[.]’” Majority Opinion at 17, 

quoting 71 P.S. §1340.101(b). The majority contends the responsibilities in that select 

quotation “are indisputably in furtherance of the purposes of the Section 27 trust” and, 

further, “decline[s] to determine whether all of DCNR’s statutory responsibilities qualify as 

trust purposes[.]” Id. at 17 & n.16. But I do dispute that assertion.

2

 

2

It is apparent to me that not all of the DCNR’s work relates directly to Article I, Section 

27 — even work done to carry out the duties the majority claims indisputably further trust 

purposes. See, e.g., ATV Riding in State Forests, PA. DCNR,

https://www.dcnr.pa.gov/Recreation/WhatToDo/ATVRiding/Pages/default.aspx (last 

visited July 29, 2022) (DCNR oversees use, registration, titling of Snowmobiles and 

ATVs); Construction Bids and Requests for Proposals for Projects and Services on State 

Park and Forest Lands, PA. DCNR,
[J-82-2021] [MO: Baer, C.J.] - 6

The DCNR has responsibilities other than conservation and maintenance. More 

fully, its mission is to:

maintain, improve and preserve State parks, to manage State forest 

lands to assure their long-term health, sustainability and economic use, 

to provide information on Pennsylvania’s ecological and geologic 

resources and to administer grant and technical assistance programs 

that will benefit rivers conservation, trails and greenways, local 

recreation, regional heritage conservation and environmental education 

programs across Pennsylvania.

71 P.S. §1340.101(b). The DCNR’s mission goals of economic use of state forests, 

recreation, and heritage conservation are not explicitly related to the trustees’ Article I, 

Section 27 duties to conserve and maintain public natural resources. Despite the 

majority’s failure to consider whether the DCNR only performs trust-furthering functions, 

that determination is critical to the facial constitutionality of these provisions. Where 

Sections 104(P) and 1601 provide trust assets to the DCNR for all of its general 

 

https://www.dcnr.pa.gov/Business/ConstructionBids/Pages/default.aspx (last visited July 

29, 2022) (DCNR manages construction projects in state parks and forests, including, 

inter alia, bridges, roads, sewage systems, swimming pools, campgrounds, cabins, visitor 

centers, and offices); Recreation Skills Education, PA. DCNR,

https://www.dcnr.pa.gov/Education/RecreationSkills/Pages/default.aspx (last visited July 

29, 2022) (DCNR offers workshops for training teachers in hiking, snowshoeing, and 

geocaching); State Park Concession Opportunities, PA. DCNR,

https://www.dcnr.pa.gov/Business/StateParkConcessions/Pages/default.aspx (last 

visited July 29, 2022) (DCNR manages lease agreements for concession operations in 

state parks, including food and refreshments, watercraft rentals, bicycle rentals, 

restaurant operations, golf course operations, and whitewater rafting operations). We 

implicitly acknowledged this reality in PEDF II when we struck down §1603-E of the Fiscal 

Code, which put a cap of $50 million in allocations from the Lease Fund to the DCNR and 

stated “[t]he department shall give preference to the operation and maintenance of State 

parks and forests.” While the cap was certainly part of the problem, we also took issue 

with the quoted language because it “require[d] DCNR to ‘give preference to the

operation and maintenance of State parks and forests’ rather than to conservation

purposes.” PEDF II, 161 A.3d at 937-38. If all of the DCNR’s duties effectuated Section

27, this language would not have been problematic. 
[J-82-2021] [MO: Baer, C.J.] - 7

operations, and the DCNR performs functions that do not further trust purposes, the 

statutes are facially unconstitutional because they “permit the trustee to use trust assets 

for non-trust purposes, a clear violation of the most basic of a trustee's fiduciary 

obligations.” PEDF II, 161 A.3d at 938. The majority bypasses this issue because PEDF 

“presents a facial challenge to the use of trust assets for DCNR’s general operations, 

rather than challenging DCNR’s use of trust funds for specific administrative costs.” 

Majority Opinion at 17 n.16. But PEDF II and PEDF V also involved facial challenges.

In those cases, we recognized the fact the General Assembly could have used

the Lease Fund money for trust purposes, once it was moved to the General Fund, was 

not enough to save the challenged statutes. We held the text of the provisions must

indicate consideration and reasonable exercise of the trustee’s fiduciary duties. Similarly 

here, the fact the DCNR might use the Lease Fund money only for general operations 

that would further trust purposes rather than for other aspects of its mission is inadequate. 

Under PEDF II, the statutes must facially require that the funds be used only for trust 

purposes under Article I, Section 27. Essentially, using Lease Funds for “general 

operations” may be constitutional, but only if those “general operations” further trust 

purposes. Indeed, the majority acknowledges the possibility not all of the DCNR’s 

functions further trust purposes. See id. Since Sections 104(P) and 1601 facially “permit 

the trustee to use trust assets for non-trust purposes,” they are invalid under PEDF II.

161 A.3d at 938.

Section 1601.2-E(c) of the Fiscal Code is similarly flawed. That provision states:

Money in the [Lease Fund] may only be used as provided under 

subsection (e) or as annually appropriated by the General Assembly. In 

making an appropriation from the fund, the General Assembly shall 
[J-82-2021] [MO: Baer, C.J.] - 8

consider the Commonwealth’s trustee duties under section 27 of Article 

I of the Constitution of Pennsylvania.

72 P.S. §1601.2-E(c) (emphasis added). In PEDF II, we held Section 1602-E was facially 

unconstitutional because it “merely require[d] the General Assembly to ‘consider’

allocating these funds to municipalities impacted by a Marcellus well.” 161 A.3d at 937

(emphasis added). Mere consideration of fiduciary duties is insufficient under PEDF II, 

yet mere consideration is all that Section 1601.2-E(c) requires. The majority attempts to 

distinguish PEDF II, stating “[w]hile one requires consideration of mandatory trustee 

duties imposed by Section 27, the other suggests a specific allocation of resources to one 

of many potentially constitutional purposes.” Majority Opinion at 26. But that distinction 

does not address the fact that mere consideration of the trust purposes is insufficient 

under PEDF II; the trustees must also reasonably exercise their duties. See 161 A.3d at 

937.3

The majority further “observe[s] that the language of subsection (c) seems 

intended to remedy the fault identified in PEDF II” that Section 1602-E lacked “any 

‘indication that the General Assembly considered the purposes of the public trust or 

exercised reasonable care in managing the royalties in a manner consistent with its 

Section 27 trustee duties.’” Majority Opinion at 26, quoting PEDF II, 161 A.3d at 938. 

The majority reasons in a footnote that “[t]he statute’s arguably inarticulate use of the verb 

‘consider’ does not negate the mandatory nature of the General Assembly’s Section 27 

duties.” Id. at 27 n.21. But again, on its face, Section 1601.2-E(c) only requires the 

 

3

In her concurring opinion, Justice Donohue asserts, “[a]fter our decision in PEDF II, as 

a matter of law, Article I, Section 27 fiduciary duties are incorporated into all legislative 

and executive action at all levels of the Commonwealth’s governance.” Concurring 

Opinion at 8 n.3 (Donohue, J.). But our decision in PEDF II did not change the text of 

Section 27 — it explained what Section 27 means and requires. Thus, the provisions at 

issue now must adhere to the same Section 27 requirements as the provisions at issue 

in PEDF II. 
[J-82-2021] [MO: Baer, C.J.] - 9

General Assembly to consider its trustee duties, not reasonably exercise them. And, 

respectfully, in PEDF II and PEDF V, the mere existence of the General Assembly’s 

trustee duties under Section 27 was not enough to save what could have then been 

similarly characterized as “arguably inarticulate” text. Since we deemed such language 

deficient in PEDF II, I would find Section 1601.2-E(c) facially unconstitutional.4

Finally, Section 1601.2-E(b) of the Fiscal Code is facially unconstitutional because 

it allows the General Assembly, without restriction, to commingle trust funds with its own 

funds and other non-trust funds. Section 1601.2-E(b) states:

(b) Sources.--The following shall be deposited into the fund:

(1) Rents and royalties from oil and gas leases of land 

owned by the Commonwealth, except rents and 

royalties received from game and fish lands.

(2) Amounts as provided under section 5 of the act of 

October 8, 2012 (P.L. 1194, No. 147),[] known as the 

Indigenous Mineral Resources Development Act.

(3) Any other money appropriated or transferred to the 

fund.

72 P.S. §1601.2-E(b). As the majority explains, “[a] trustee has a duty to maintain 

‘adequate records of the administration of the trust’ and to ‘keep trust property separate 

 

4

I do not suggest the General Assembly was required to “list[ ] each of the Section 27 

trustee duties or quote[ ] this Court’s summary of those duties[.]” Majority Opinion at 27 

n.21. But in PEDF II and PEDF V, we explicitly held that in order to reasonably exercise 

their duties, trustees can spend money derived from trust resources to further trust 

purposes only. When the General Assembly allocates trust funds, its “legislative 

enactments [cannot] permit the trustee to use trust assets for non-trust purposes” as that 

would be “a clear violation of the most basic of a trustee’s fiduciary obligations.” PEDF 

II, 161 A.3d at 938. Thus, something more than mere “consideration” of Section 27 is 

required before trust funds may be used; furtherance of trust purposes must be a

condition of the expenditure. See id. In my view, the General Assembly might have 

fulfilled this directive from PEDF II simply by requiring the money be spent only to further 

trust purposes.
[J-82-2021] [MO: Baer, C.J.] - 10

from the trustee’s own property.’” Majority Opinion at 29 n.25, quoting 20 Pa.C.S. 

§7780(a), (b). But Section 1601.2-E(b)(3) expressly permits the General Assembly to 

commingle trust funds with “[a]ny other money appropriated or transferred to the fund.” 

72 P.S. §1601.2-E(b)(3). On its face, Section 1601.2-E(b) allows the Commonwealth to 

commingle its own funds with trust funds, which would violate its duties as a trustee. See

20 Pa.C.S. §7780(b). Section 1601.2-E(b) also fails to require an accounting if “[a]ny 

other money appropriated or transferred to the fund” is non-trust money. See id. at 

§7780(a). In direct contravention of the Commonwealth’s duties as a trustee, the 

provision puts no limits on the money that can be commingled with trust money within the 

Lease Fund. See id.; see also Restatement (Second) of Trusts §179 (“The trustee is 

under a duty to the beneficiary to keep the trust property separate from his individual 

property, and, so far as it is reasonable that he should do so, to keep it separate from 

other property not subject to the trust, and to see that the property is designated as 

property of the trust.”). Thus, “there is no indication that the General Assembly considered 

the purposes of the public trust or exercised reasonable care in managing the [trust funds]

in a manner consistent with its Section 27 trustee duties.” PEDF II, 161 A.3d at 938. I 

would therefore find Section 1601.2-E(b) facially unconstitutional.

In her concurring opinion, Justice Donohue suggests this commingling of funds is 

why the General Assembly can facially permit Lease Fund money to be spent on all of 

DCNR’s general operations. See Concurring Opinion at 5-7 (Donohue, J.). But as the 

saying goes, two wrongs do not make a right. The General Assembly cannot obfuscate 

its fiduciary duty to prevent the spending of trust money on non-trust purposes by 

breaching its other fiduciary duty not to commingle funds. And contrary to Justice 

Donohue’s assertion that Section 1601.2-E(b)’s commingling of funds differentiates this 

case from PEDF II, this case presents an analogous scenario. As explained in PEDF II, 
[J-82-2021] [MO: Baer, C.J.] - 11

Section 1602-E required Lease Fund money to be moved into the General Fund before it 

could be spent. See PEDF II, 161 A.3d at 921-22. Thus, Section 1602-E essentially 

commingled trust money with the Commonwealth’s money in the General Fund, and then 

allowed the General Assembly to appropriate those funds without clear limitations. In 

fact, in PEDF V, we described Section 1602-E’s functions as follows:

The most significant change was Section 1602-E, which stated that no 

Lease Fund royalty money, with an exception discussed next, should be 

expended unless appropriated or transferred to the general budgetary 

fund by the General Assembly. Thus, all the royalties in the Lease 

Fund would be transferred to a larger pool of money, whereupon the 

General Assembly would allocate back to the DCNR whatever amount it 

saw fit.

PEDF V, 255 A.3d at 294 (emphasis added). Under that scheme, it was possible the 

General Assembly could have spent the trust funds on trust purposes entirely once they 

were moved to the General Fund, just as Justice Donohue now suggests it is possible 

that the non-trust funds commingled with the trust corpus within the Lease Fund would 

cover any non-trust purposes. But, of course, we found Section 1602-E facially 

unconstitutional in PEDF II because it permitted the spending of trust funds on non-trust 

purposes.5 The Commonwealth cannot enact legislation facially permitting the spending 

of trust money on non-trust purposes simply because it first commingles the money with 

other funds. To hold otherwise would contradict PEDF II and provide the Commonwealth 

a perverse incentive to breach its fiduciary duty not to commingle funds.

 

5 Justice Donohue attempts to reframe the Court’s holding in PEDF II, stating: “the PEDF 

II provisions authorized the General Assembly to take trust assets and appropriate them 

to the General Fund, where they would be clearly spent on non-trust purposes.” 

Concurring Opinion at 6 (Donohue, J.). But PEDF II did not hinge on a finding the trust 

funds would “be clearly spent on non-trust purposes” once moved to the General Fund. 

Id. In fact, Section 1602-E required the General Assembly to consider allocating at least 

some of those funds to the “municipalities impacted by a Marcellus well[,]” 72 P.S. §1602-

E, which very well could have encompassed trust purposes. Instead, that provision was 

unconstitutional because it “permit[ted] the trustee to use trust assets for non-trust 

purposes[.]” PEDF II, 161 A.3d at 938 (emphasis added).
[J-82-2021] [MO: Baer, C.J.] - 12

In sum, the majority frames its opinion by PEDF’s burden in this case: “[i]n

challenging the constitutionality of duly enacted statutory provisions that are presumed to 

be constitutional, PEDF bears the burden of demonstrating that the provisions ‘clearly, 

plainly, and palpably’ violate the Constitution.” Majority Opinion at 10, quoting PEDF II, 

161 A.3d at 929; see also id. at 27 n.21 (relying on 1 Pa.C.S. §1922(3) as “providing that 

in interpreting legislative intent, courts may presume ‘[t]hat the General Assembly does 

not intend to violate the Constitution’”). It then finds PEDF failed to meet its burden 

because the Commonwealth could still — in theory — act according to its fiduciary duties

under the provisions at issue. While this rationale has some appeal, we are bound by the 

dictates of stare decisis. In PEDF II, we held statutes are facially unconstitutional — that 

they “clearly, plainly, and palpably” violate Article I, Section 27 — where they “permit the 

trustee to use trust assets for non-trust purposes[.]” PEDF II, 161 A.3d at 938.6 In PEDF 

V, we applied that premise to hold provisions that simply transferred money from the 

Lease Fund to the General Fund were facially unconstitutional. Like the provisions we 

struck down in PEDF II and PEDF V, Sections 104(P) and 1601 of the General 

 

6 Justice Donohue’s extensive analysis under the “plainly legitimate sweep” standard 

discussed in Clifton v. Allegheny County, 969 A.2d 1197 (Pa. 2009), is puzzling. See 

Concurring Opinion at 6-7, 10 n.6 (Donohue, J.). In Clifton, this Court merely recognized 

that the United States Supreme Court “seems to have settled on the ‘plainly legitimate 

sweep’ standard[,]” which is more lenient than the stricter standard requiring a challenger 

to show “no set of circumstances exists under which the [statute] would be valid.” Clifton, 

969 A.2d at 1223 (citations omitted). The Clifton Court then found that even under the 

more lenient standard, the challenger’s facial challenge failed. See id. at 1224. To be 

clear, the Clifton Court did not adopt the “plainly legitimate sweep” standard, and the 

Court has since applied the stricter “no set of circumstances” standard in evaluating facial 

challenges. See Commonwealth v. Pownall, ___A.3d ___, 2022 WL 2824741, at *15 (Pa.

July 20, 2022); Germantown Cab Co. v. Phila. Parking Auth., 206 A.3d 1030, 1041 (Pa. 

2019). But since I would find the provisions here unconstitutional even under the stricter 

“no set of circumstances” standard, and since the majority applies the correct standard, 

see Majority Opinion at 10, an analysis of the “plainly legitimate sweep” standard is of no 

moment.
[J-82-2021] [MO: Baer, C.J.] - 13

Appropriations Acts of 2017 and 2018 and Sections 1601.2-E(b) and (c) of the Fiscal 

Code lack explicit language requiring trust funds be used for trust purposes, 

demonstrating the General Assembly failed to consider trust purposes or exercise 

reasonable care in administering the trust. I would therefore hold those provisions facially 

unconstitutional.