Gregory v. Pennsylvania State Police

160 A.3d 274, 2017 WL 1548848, 2017 Pa. Commw. LEXIS 166
CourtCommonwealth Court of Pennsylvania
DecidedMarch 21, 2017
DocketNo. 245 M.D. 2015
StatusPublished
Cited by19 cases

This text of 160 A.3d 274 (Gregory v. Pennsylvania State Police) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gregory v. Pennsylvania State Police, 160 A.3d 274, 2017 WL 1548848, 2017 Pa. Commw. LEXIS 166 (Pa. Ct. App. 2017).

Opinion

OPINION BY

JUDGE COHN JUBELIRER

Before this Court in our original jurisdiction is the Preliminary Objection (PO) pursuant to Rule 1028(a)(5) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1028(a)(5) of the Pennsylvania State Police (State Police) to Norman E. Gregory’s (Petitioner) “Third Amended Petition for Relief’ (Petition for Review); Petitioner alleges that he was convicted of a crime of a sexual nature in 1982 and has been incarcerated since.1 Petitioner alleges that he was paroled by the Pennsylvania Board of Probation and Parole in December 2015 or January 42016, and will be released upon approval of a home plan. (Petition for Review ¶ 4, Answer to PO ¶ 5.) Petitioner alleges that he will be required to register with the State Police as a sexual offender pursuant to the Sexual Offender Registration and Notification Act (SORNA)2 upon release from incarceration. (Petition for Review ¶ 4; Answer to PO ¶ 9.)

The Petition for Review asserts three Counts. In Count I, Petitioner alleges that [276]*276SORNA is unconstitutional as applied to him because it denies him equal protection under the law. (Petition for Review ¶¶ 16-19.) In Count II, Petitioner challenges Section 9799.11(b)(2) of SORNA, 42 Pa. C.S. § 9799.11(b)(2), which declares that SOR-NA “shall not be construed as punitive.” Petitioner asks this Court to strike this statutory provision on the basis that the General Assembly should not make findings that are within the sole purview of the courts. (Petition for Review ¶ 20.) In Count III, Petitioner alleges that SORNA’s notification and registration requirements and related procedures are unconstitutional as applied to him under the Ex Post Facto Clause of the United States Constitution, U.S. Const. Art. I § 10 (stating “[n]o State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts .... ”). (Petition for Review ¶¶ 21-32.)

The State Police filed a single PO on February 7, 2017, alleging that Petitioner lacks the capacity to sue because he is not, at the time of filing the PO, registered with the State Police as a sexual offender. (PO ¶ 10.) The State Police alleges that Petitioner lacks standing to bring the action because he is not yet aggrieved. (PO ¶¶ 12-13.) According to the State Police, Petitioner “could be required to register as a sex offender at some future point in time, if his sentence were to expire or he were to be paroled, but that has not yet occurred.” (PO ¶ 11 (emphasis in original.)). The State Police asks this Court to sustain the PO and to dismiss the Petition for Review with prejudice.

When ruling on preliminary objections,

the courts accept as true all well-pleaded allegations of material facts as well as all of the inferences reasonably deducible from the facts. For preliminary objections to be sustained, it must appear with certainty that the law will permit no recovery, and any doubt must be resolved in favor of the non-moving party.

Stilp v. Com., 927 A.2d 707, 709 (Pa. Cmwlth. 2007), aff'd, 596 Pa. 493, 946 A.2d 636 (2008) (citation omitted).

The State Police characterizes its PO as alleging Petitioner lacks standing. However, the allegations could equally be construed as asserting a ripeness challenge because the State Police’s objection focuses on the timing of the action, not whether Petitioner is the right person to assert the cause of action. However, since “ripeness[ ] overlaps substantially with standing,” and the difference between the two concepts is “one of the most confused areas of the law,” Rendell v. Pennsylvania State Ethics Commission, 603 Pa. 292, 983 A.2d 708, 718 & 718 n.12 (2009), the Court will address the State Police’s PO as if it generally alleges that there is no case or controversy and will analyze both standing and ripeness.

For a party to have standing to initiate an action under Pennsylvania’s prudential standing principles, “the underlying controversy must be real and concrete, such that the party initiating the legal action has, in fact, been ‘aggrieved.’ ” Office of Governor v. Donahue, 626 Pa. 437, 98 A.3d 1223, 1229 (2014) (quoting Pittsburgh. Palisades Park, LLC v. Com., 585 Pa. 196, 888 A.2d 655, 660 (2005)). An aggrieved party is one who can establish a “substantial, direct and immediate interest in the outcome of the litigation.” Fumo v. City of Phila., 601 Pa. 322, 972 A.2d 487, 496 (2009).

A party’s interest is substantial when it surpasses the interest of all citizens in procuring obedience to the law; it is direct when the asserted violation shares a causal connection with the alleged [277]*277harm; finally, a party’s interest is immediate when the causal connection with the alleged harm is neither remote nor speculative.

Donahue, 98 A.3d at 1229. In deciding whether the matter is ripe for our disposition, the Court considers “whether the issues are adequately developed for judicial review and what hardships the parties will suffer if review is delayed.” Twp. of Derry v. Pennsylvania Dep’t of Labor and Indus., 593 Pa. 480, 932 A.2d 56, 58 (2007) (citation omitted).

With regard to standing, there is little question that Petitioner has a substantial and direct interest in determining whether SORNA is unconstitutional as applied to him. Petitioner’s interest in the constitutionality of SORNA as applied to him “surpasses the interest of all citizens in procuring obedience to the law,” and there is a “causal connection” between the impending application of SORNA upon Petitioner and the alleged harm imposed. Donahue, 98 A.3d at 1229. The key question is whether Petitioner has an immediate interest. The Court holds that he does.

In Williams v. Department of Corrections (Pa. Cmwlth., No. 353 M.D. 2014, filed October 15, 2015), 2015 WL 6474764 (en banc),3 a class of all inmates serving a sentence of death in the Commonwealth filed a petition for review in the Court’s original jurisdiction seeking, among other things, a declaration that the lethal injection protocol used by the Commonwealth is unlawful under various provisions of state and federal law. Williams, slip op. at 4-9. The Department of Corrections (Department) objected to the petition for review by alleging, inter alia, that the matter was not ripe and the petitioners lacked standing “because not all [of the petitioners have active death warrants signed by the Governor and those [petitioners under active warrants have had their executions judicially stayed.” Id., slip op. at 18-19. The Department asserted that the matter was not justiciable because the petitioners could not show that they were actually going to be executed by the method outlined in the lethal injection protocol.

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Cite This Page — Counsel Stack

Bluebook (online)
160 A.3d 274, 2017 WL 1548848, 2017 Pa. Commw. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregory-v-pennsylvania-state-police-pacommwct-2017.