# A. Elansari v. The Com. of PA

> Commonwealth Court of Pennsylvania · September 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10585141

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** September 16, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Ceisler
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amro Elansari, :
Petitioner :
:
v. : No. 663 M.D. 2020
:
The Commonwealth of Pennsylvania, :
Respondent : Submitted: August 9, 2024

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER FILED: September 16, 2024

Before this Court are Preliminary Objections (POs) filed by the
Commonwealth of Pennsylvania (Commonwealth) in response to a petition for
review (PFR) filed by Amro Elansari (Petitioner), pro se, that raises due process and
equal protection claims under the Fourteenth Amendment of the United States
Constitution.1 By way of relief, Petitioner seeks declaratory relief that would
legalize the growing of marijuana for personal use and mandamus relief in the form
of an order directing the expungement of criminal records for individuals convicted
for the possession and distribution of marijuana under The Controlled Substance,
Drug, Device and Cosmetic Act (CSA).2

1
Section 1 of the Fourteenth Amendment relevantly provides that “[n]o State shall make
or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. XIV, § 1.

2
Act of April 14, 1972, P.L. 64, as amended, 35 P.S. §§ 780-101 – 780-144.
The Commonwealth’s POs seek the dismissal of Petitioner’s PFR on the
following bases: (1) Petitioner failed to effectuate proper service of the PFR; (2) the
Commonwealth is not a proper party; (3) this Court does not have original
jurisdiction over Petitioner’s PFR; and (4) Petitioner has failed to state viable equal
protection and due process claims.

After careful review, we overrule the Commonwealth’s first PO, as the record
demonstrates that Petitioner properly served the PFR. We sustain the
Commonwealth’s second PO to the extent the PFR seeks mandamus relief. We
sustain the Commonwealth’s third PO to the extent the PFR raises a claim in the
nature of an application for writ of habeas corpus or post-conviction relief. Finally,
because the PFR fails to state viable equal protection and due process claims, we
sustain the Commonwealth’s fourth PO and dismiss the PFR.

I. Background

On April 9, 2015, Petitioner was convicted of possessing a small amount of
marijuana in violation of Section 13(a)(31) of CSA.3 On November 5, 2015,
Petitioner was found guilty of violating several provisions of the CSA, including
Section 13(a)(16),4 which prohibits the possession of a controlled substance without
a valid prescription, and Section 13(a)(30),5 which prohibits the manufacture,

3
35 P.S. § 780-113(a)(31). Section 13(a)(31) prohibits the possession of a small amount
of marijuana for personal use, with the intent to distribute it but not for sale, or the distribution
thereof but not for sale.

4
35 P.S. § 780-113(a)(16).

5
35 P.S. § 780-113(a)(30).

2
delivery, or possession with intent to manufacture a controlled substance. All
convictions were upheld on appeal.6

Petitioner brought the instant PFR pursuant to 42 U.S.C. § 1983,7 alleging that
the Commonwealth violated Petitioner’s equal protection and due process rights
under the Fourteenth Amendment when it legalized the growing, sale, and
distribution of medical marijuana under the Medical Marijuana Act (MMA)8 while
continuing to prosecute Petitioner and others under the CSA for engaging in the
same conduct. Petitioner suggests that the Commonwealth, by enacting the MMA,
has recognized the medical necessity of marijuana. At the same time, the
Commonwealth, by convicting individuals for possessing marijuana, falsely
represents that marijuana “has no medicinal value[,]” which Petitioner contends is
an unconstitutional violation of “the due process rights of people[.]” PFR, ¶¶ 19-20.
Accordingly, Petitioner requests a declaration that marijuana may be legally grown
for personal use and that the current restrictions on growing marijuana are
unconstitutional. Petitioner also requests the expungement of all criminal records
for individuals convicted of possessing and distributing marijuana.

6
See Com. v. Elansari (Pa. Super., No. 773 MDA 2015, filed Feb. 24, 2016); Com. v.
Elansari (Pa. Super., No. 2235 MDA 2015, filed October 18, 2016).

7
Enacted as part of the Civil Rights Act of 1871, Section 1983 authorizes a civil action
against a “person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws[.]” 42 U.S.C. § 1983. A claim
under Section 1983 requires that the petitioner establish that some person has deprived him of a
cognizable federal right and that the person deprived him of a federal right while acting under
color of state law. Urbanic v. Rosenfeld, 616 A.2d 46, 479-80 (Pa. Cmwlth. 1992).
8
Act of April 17, 2016, P.L. 84, as amended, 35 P.S. §§ 10231.101-10231.2110.

3
The Commonwealth filed POs to the PFR on June 16, 2021, the first of which
asserts that Petitioner failed to serve the PFR as required by Pa.R.A.P. 1514(c) (Rule
1514(c)), which specifies that a copy of the PFR “shall be served by the petitioner
in person or by certified mail on both the government unit that made the
determination sought to be reviewed and the Attorney General of Pennsylvania.”
The Commonwealth’s second PO argues that the Commonwealth is not a proper
party and that Petitioner should have named a specific agency or individual that acted
on the Commonwealth’s behalf. The Commonwealth’s third PO objects to the PFR
on the basis that this Court does not have jurisdiction because the PFR is essentially
an attempt by Petitioner to relitigate the validity of his criminal convictions. The
Commonwealth’s fourth PO argues that Petitioner has failed to state a viable equal
protection or due process claim. By way of relief, the Commonwealth requests that
this Court dismiss the PFR.

In his Response to Preliminary Objections (Response), contrary to the relief
expressly sought in the PFR, Petitioner denies that he sought the decriminalization
of marijuana. Instead, Petitioner lodges a constitutional challenge to the MMA on
the basis that it violates federal law and permits “defective marijuana [that is]
contaminated with chemicals” to be sold at an “exorbitant” cost. Petitioner’s Br. at
3. Petitioner also questions whether, following the enactment of the MMA, the
Commonwealth can prohibit him from growing marijuana for personal use.9

9
Petitioner subsequently filed an Emergency Petition that sought to enjoin the sale of
certain types of medical marijuana and to enjoin the prohibition against growing marijuana for
personal use. Defect Correction Notices sent to Petitioner on October 6, 2021 and October 20,
2021, indicated that the Emergency Petition had not been properly served. Both notices indicated
that, if Petitioner failed to file a proof of service within 14 days, the matter would be considered
abandoned. A June 16, 2022 per curiam order of this Court noted that Petitioner had not filed the
requested proof of service and, therefore, the Emergency Petition was deemed abandoned.

4
II. Discussion

In ruling on POs, we must accept as true all well-pleaded material facts in the
petition for review and all inferences reasonably deducible therefrom. Torres v.
Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010). We are not required to accept as
true any conclusions of law, unwarranted inferences from facts, argumentative
allegations, or expressions of opinion. Id. POs testing the legal sufficiency of a
pleading will be sustained only where the pleading clearly fails to state a claim for
which relief may be granted. Id.

A. Service

The Commonwealth’s first PO objects to the PFR on the basis that Petitioner
only sent the PFR by first-class and electronic mail, which is not proper service under
Rule 1514(c). The Commonwealth requests that the PFR be dismissed, with
prejudice, or alternatively, that this Court direct Petitioner to comply with the service
requirements of Rule 1514(c). Petitioner maintains that he properly served the PFR,
as evidenced by a proof of service attached to his brief, along with email
correspondence between Petitioner and counsel for the Commonwealth, which
demonstrates that the Commonwealth received the PFR.10

We disagree with the Commonwealth that Petitioner failed to properly serve
the PFR. While the proof of service Petitioner initially filed indicates that he only
emailed copies of the PFR to then-Attorney General Josh Shapiro (AG Shapiro) and
to Bernie Cantorna, the District Attorney of Centre County (DA Cantorna),11

The documents attached to Petitioner’s Response reflect his attempts to serve his
10

Emergency Petition, not the PFR.

11
It is not clear from the PFR, Petitioner’s response to the Commonwealth’s POs, or
Petitioner’s brief why DA Cantorna was served a copy of the PFR.

5
Petitioner filed a second proof of service on January 21, 2021, certifying that copies
of the PFR were sent to AG Shapiro and DA Cantorna by certified mail on January
4, 2021. As service by certified mail is specifically provided for in Rule 1514(c),
we overrule the Commonwealth’s PO challenging service of the PFR.

B. Misjoinder

The Commonwealth’s second PO objects to the PFR on the basis that the
Commonwealth is an improper party because an action may only be brought against
the Commonwealth where a cause of action exists, and a right of action has been
authorized by statute. The Commonwealth points out that the relevant provisions of
the CSA, which prohibit the possession of marijuana and the possession thereof with
the intent to deliver, do not authorize a cause of action against the Commonwealth.

Petitioner responds that the Commonwealth is a proper party because this
matter concerns a policy instituted by the Commonwealth “as a whole” that violates
the Fourteenth Amendment to the United States Constitution. PFR ¶ 13. Petitioner
suggests that the Fourteenth Amendment is the “statute” that authorizes his cause of
action, and he maintains that, because the Commonwealth ratified the Fourteenth
Amendment, his constitutional claims are not barred by sovereign immunity.
Petitioner relies on Virginia Office for Protection and Advocacy v. Stewart, 563 U.S.
247 (2011) (VOPA), in which the United States Supreme Court held that an
exception to sovereign immunity permitted a lawsuit brought by an independent
state agency against state officials, which alleged violations of federal law.

Sovereign immunity protects a state from “being hauled into court without its
consent.” VOPA, 563 U.S. at 258. Article I, section 11 of the Pennsylvania
Constitution relevantly provides that “suits may be brought against the

6
Commonwealth in such manner, in such courts and in such cases as the Legislature
may by law direct.” To that end, Pa.R.Civ.P. 2102 (Rule 2102) provides that, while
“[a]n action by the Commonwealth” may be brought in the name of “the
Commonwealth of Pennsylvania,” an action against a “Commonwealth agency or
party” generally may not.12 Citing article I, section 11 of the Pennsylvania
Constitution and 1 Pa.C.S. § 2310,13 the note to Rule 2102 explains that the only
exception to sovereign immunity is where there is a cause of action against the
Commonwealth generally and an express right of action against the Commonwealth
generally has been authorized by statute. Furthermore, Section 8521(a) of the
Judicial Code, 42 Pa.C.S. § 8521(a), states that, except as otherwise provided, “no
provision of [Title 42] shall constitute a waiver of sovereign immunity.” Section
8522(b) of the Judicial Code, 42 Pa.C.S. § 8522(b), establishes the circumstances
for which sovereign immunity is waived by a Commonwealth party, which is
defined in Section 8501 of the Judicial Code, 42 Pa.C.S. § 8501, as “[a]
Commonwealth agency and any employee thereof, but only with respect to an act
within the scope of his office or employment.” Sovereign immunity does not bar,
however, a declaratory judgment action or injunction that seeks to prohibit state
parties from acting. Finn v. Rendell, 990 A.2d 100, 105 (Pa. Cmwlth. 2010).
Furthermore, a mandamus action “will lie to compel a state officer or agency to
perform a ministerial or mandatory duty.” Id.

12
Unless otherwise proscribed by the Pennsylvania Rules of Appellate Procedure, matters
brought within this Court’s original jurisdiction proceed in accordance with the practice and
procedure in the courts of common pleas. Pa.R.A.P. 106 and 1517.

13
Section 2310 reaffirms sovereign immunity for the Commonwealth and its officials and
employees, when acting within the scope of their duties, “except as the General Assembly shall
wait the immunity.” 1 Pa.C.S. § 2310.

7
At the outset, we reject Petitioner’s argument that VOPA supports his position
that the Commonwealth has waived sovereign immunity. The statutory scheme
involved in VOPA offered funding to states in exchange for creating a protection and
advocacy (P&A) system to improve medical care for individuals with developmental
disabilities or mental illness.14 To that end, Virginia appointed an independent state
agency, VOPA, to oversee its P&A system, and authorized VOPA to litigate the
rights of disabled individuals free of executive branch oversight. The relevant
enabling federal legislation explicitly provided that a P&A agency “shall . . . have
access to all records” of individuals who may have been abused, as well as any
records deemed relevant for conducting an investigation.15 As part of its
investigation into the alleged abuse of patients at state-run mental institutions,
VOPA requested patient records from the state officials in charge of those
institutions. When the state officials refused to provide the requested records, VOPA
filed an action in federal court, seeking declaratory and injunctive relief.

In reviewing whether VOPA’s lawsuit was barred by sovereign immunity, the
United States Supreme Court noted that States have retained their traditional
immunity from suit and that, absent waiver or abrogation of sovereign immunity by
Congress, federal courts could “not entertain a private person’s suit against a State.”
VOPA, 563 U.S. 253-54. Ultimately, however, the VOPA Court held that VOPA’s
lawsuit was not barred by sovereign immunity because Virginia law created VOPA
and gave it the power to sue state officials.

Instantly, the Commonwealth is correct that none of the provisions in the CSA
cited by Petitioner authorize a right of action against the Commonwealth. This does

14
See 42 U.S.C. § 15043(a)(1).

15
42 U.S.C. § 15043(a)(2)(I)(iii)(II); 42 U.S.C. § 15043(a)(2)(J)(i).

8
not end our inquiry, however. Although the allegations and averments in the PFR
are inartfully stated and Petitioner makes sweeping generalizations regarding the
alleged constitutional violations, the PFR clearly requests declaratory and
mandamus relief, which are not automatically barred by sovereign immunity. By
way of declaratory relief, the PFR expressly requests a declaration that the CSA’s
restriction on growing marijuana for personal use is unconstitutional. That the
Response Petitioner subsequently filed expressly denies requesting that relief is of
no moment. Sovereign immunity does not bar Petitioner’s claims to the extent they
request declaratory relief.

Insofar as the PFR seeks mandamus relief, however, we agree with the
Commonwealth that the Commonwealth is not a proper party. A writ of mandamus
is an extraordinary remedy that is used to compel the performance of a ministerial
act or mandatory duty. DeGeorge v. Young, 892 A.2d 48, 51 (Pa. Cmwlth. 2006).
Mandamus relief may only be granted where the moving party establishes a clear
legal right, a corresponding duty on the part of the respondents, and the lack of any
other appropriate and adequate remedy. “A mandatory duty is ‘one which a public
officer is required to perform upon a given state of facts and in a prescribed manner
in obedience to the mandate of legal authority.’” Savage v. Storm, 257 A.3d 187,
191 (Pa. Cmwlth. 2021) (internal citations omitted). In essence, an action in
mandamus requires “that a specific actor has a non-discretionary duty to perform a
particular act.” Finn, 990 A.2d at 106. The Commonwealth is “an entity separate
from its agencies and officers[.]” Id. at 105. Thus, “a request that the
Commonwealth be ordered to do something begs the question which of the many
actors comprising state government is to be held accountable.” Finn, 990 A.2d at
106. Merely naming the Commonwealth is not sufficient to state a claim against a

9
Commonwealth party. Tork-Hiis v. Com., 735 A.2d 1256, 1259 (Pa. 1999).
Therefore, it seems “self-evident that[,] if a specific state party can be identified as
having a mandatory or ministerial duty, that party must be the named defendant, both
in order to make out a cause of action in mandamus and to effectuate enforcement
of any ensuing order.” Finn, 990 A.2d at 106. Accordingly, because Petitioner
cannot seek mandamus relief against the Commonwealth generally, we sustain the
Commonwealth’s second PO, to the extent the PFR constitutes an action in
mandamus.

C. Jurisdiction

Next, the Commonwealth objects to the PFR on jurisdictional grounds, as this
Court does not have jurisdiction over “[a]ctions or proceedings in the nature of
applications for writ of habeas corpus or post-conviction relief not ancillary to
proceedings within the appellate jurisdiction of the [Commonwealth Court].” 42
Pa.C.S. § 761(a)(1)(i). The Commonwealth maintains that, although Petitioner has
purportedly brought his case under 42 U.S.C. § 1983, and he makes broad claims
regarding the constitutionality of the CSA, the essence of Petitioner’s PFR is that,
because Pennsylvania has legalized medical marijuana, Petitioner was unfairly
punished for growing and selling marijuana. Thus, the Commonwealth requests that
this Court dismiss the PFR, to the extent Petitioner indirectly attacks his criminal
convictions.

Petitioner strenuously denies that the PFR challenges his prior convictions for
possessing and distributing marijuana. Instead, Petitioner insists that he is pursuing
equal and due process claims because the Commonwealth has legalized medical
marijuana through the MMA but continues to prosecute individuals under the CSA
for engaging in the same conduct. Petitioner rejects the MMA as a scam that he

10
alleges financially benefits Pennsylvania lawmakers while violating federal law.
Regarding Petitioner’s mandamus request for the expungement of criminal records,
Petitioner notes that he seeks the expungement of all criminal records that reflect
convictions for the possession and distribution of marijuana.

Section 761(a)(1) of the Judicial Code, 42 Pa.C.S. § 761(a)(1), relevantly
provides that this Court has original jurisdiction over all civil actions or proceedings
against the Commonwealth government, except “actions or proceedings in the nature
of applications for a writ of habeas corpus or post-conviction relief” that are not
ancillary to proceedings within this Court’s appellate jurisdiction. Our starting point
for determining the nature of a given claim requires an examination of the requested
relief’s effect in light of the legal theories offered in support. Scott v. Pa. Bd. of
Prob. & Parole, 284 A.3d 178, 189 (Pa. 2022). “[I]f the necessary consequence of
granting relief based on the supplied arguments is that the conviction or sentence is
undone or otherwise modified, then the claim is in the ‘nature of . . . a writ of habeas
corpus or post-conviction relief.’” Id.

Instantly, Petitioner seeks a declaration from this Court that would legalize
marijuana for personal use. Assuming arguendo that this Court has the authority to
grant the requested relief, which it does not, such a declaration would have no effect
on Petitioner’s prior convictions under the CSA for possession and distribution of
marijuana. Although we have already concluded that sovereign immunity bars
Petitioner’s claim for mandamus relief, we will still address whether Petitioner’s
expungement request is in the nature of an application for a writ of habeas corpus or
post-conviction relief.

The term “expunge” under Section 9102 of the Criminal History Record
Information Act (CHRIA) means:

11
(1) [t]o remove information so that there is no trace or
indication that such information existed;

(2) to eliminate all identifiers [that] may be used to
trace the identity of an individual, allowing
remaining data to be used for statistical purposes; or

(3) maintenance of certain information required or
authorized under the provisions of [42 Pa.C.S. §
9122(c)] (relating to expungement), when an
individual has completed the conditions of any pretrial
or posttrial diversion or probation program.

18 Pa.C.S. § 9102 (emphasis added).

It is irrelevant that the relief Petitioner seeks would affect other individuals
convicted of possessing and distributing marijuana, as Petitioner’s conviction would
essentially be “undone or otherwise modified,” should we grant the requested relief.
Therefore, to the extent the PFR seeks the expungement of criminal records, we are
obligated to conclude that it is in the nature of a writ of habeas corpus. The
Commonwealth is correct that this Court does not have jurisdiction over such
matters.16

16
The Post Conviction Relief Act (PCRA) is the “sole means of obtaining collateral relief
and encompasses all other common law and statutory remedies . . . including habeas corpus[.]” 42
Pa.C.S § 9542. Generally, when a matter is brought in a court that does not have jurisdiction, the
court shall not dismiss the matter, but shall transfer the record thereof to the proper tribunal. 42
Pa.C.S. § 5103(a) (transfer of erroneously filed matters). In this instance, for the sake of judicial
economy, we decline to transfer Petitioner’s mandamus claim to the appropriate court, as Section
9545 of the PCRA, 42 Pa.C.S. § 9545, requires that a PCRA petition must be filed within one year
of the date a petitioner’s judgment of sentence becomes final. Any petition seeking post-
conviction relief from Petitioner’s 2015 convictions would be unquestionably untimely. Transfer
of a case is not warranted where a PCRA petition would be dismissed as untimely. Boyd v. Pa’s
Sentencing Scheme for Sentencing 18 Year Old’s [sic] to Mandatory Life Without Parole, 311 A.3d
63, 72 (Pa. Cmwlth. 2024).

12
We could not grant Petitioner mandamus relief even if this Court accepted his
argument that the PFR does not seek relief in the nature of a writ of habeas corpus,
or if the Commonwealth was a proper party, because the averments in the PFR do
not satisfy the requirements for mandamus. Petitioner has not established a clear
legal right to the requested expungement order, as the expungement of criminal
history record information may only be granted under the “very limited
circumstances that are set forth by statute” following an individual’s conviction of
the offenses charged. Com. v. Moto, 23 A.3d 989, 993 (Pa. 2011). Section 9122 of
CHRIA, 18 Pa.C.S. § 9122,17 which governs the expungement of criminal history
record information, does not provide for the statewide expungement thereof.
Petitioner has also not asserted a corresponding duty on the part of the
Commonwealth or the absence of other appropriate and adequate remedies.

Accordingly, to the extent the PFR may be characterized as an action or
proceeding in the nature of application for a writ of habeas corpus or post-conviction
relief, we sustain the Commonwealth’s third PO.

17
Section 9122(a)-(a.1) of CHRIA provides for the mandatory expungement of criminal
history record information in the following circumstances: (1) no disposition has been received or
recorded within 188 months after the date of arrest and the court of proper jurisdiction certified
that no disposition is available and no action is pending; (2) a court order requires the expungement
of non-conviction data; (3) a person 21 years of age or older who has satisfied all terms and
conditions of the sentence imposed for a conviction of underage drinking; (4) the defendant has
been acquitted; or (5) in cases for which a pardon has been granted. Criminal history record
information may be expunged under Section 9122(b) of CHRIA, 18 Pa.C.S. § 9122(b), in the
following circumstances: (1) when an individual who has reached 70 years of age has been free of
arrest or prosecution for 10 years after final release from confinement or supervision; (2) an
individual has been dead for 3 years; or (3) an individual convicted of a summary offense has been
free of arrest or prosecution for 5 years following conviction for that offense.

13
D. Failure to State a Claim

The Commonwealth’s final PO contends that Petitioner has failed to set forth
a valid equal protection or due process claim. The Commonwealth asserts that the
legalization of medical marijuana in the MMA and prohibition against possessing or
distributing marijuana under the CSA does not raise equal protection concerns, as
growing and selling marijuana is not a fundamental right. The Commonwealth also
argues that Petitioner’s substantive due process claim fails to identify the nature of
the right implicated.

Petitioner rejoins that equal protection is implicated by the Commonwealth’s
production of medical marijuana in violation of federal law while simultaneously
charging individuals under the CSA. Petitioner maintains that he is treated
differently from elected officials, whom he alleges “profit from selling medical
marijuana scam toxic concentrates[.]” Petitioner’s Answer to Commonwealth POs
¶ 35. At the same time, Petitioner is prevented from “growing the exact same
plant[.]” Id.

Section 1 of the Fourteenth Amendment relevantly provides that “[n]o State
shall make or enforce any law which shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The
essence of equal protection under the law is that like persons in like circumstances
should be treated similarly by the sovereign. Conrad v. Dep’t of Transp. (Workers’
Comp. Appeal Bd.), 310 A.3d 1274, 1283 (Pa. Cmwlth. 2024). Equal protection
principles do not strip the General Assembly of its power to classify, however, or to
prohibit the “differential treatment of persons having different needs.” Id. (internal
citations omitted). To state an equal protection claim, a petitioner must allege that
he has been “intentionally treated differently from others similarly situated and that

14
there is no rational basis for the difference in treatment.” Rivera v. Silbaugh, 240
A.3d 229, 242 (Pa. Cmwlth. 2020) (internal citations omitted). The legal framework
for evaluating an equal protection challenge to a statutory classification consists of
the following three classifications, each of which has its own standard of review: (1)
classifications that implicate a suspect class or a fundamental right; (2)
classifications that implicate an important right or sensitive classification; or (3)
classifications that implicate none of these. Probst v. Dep’t of Transp., Bureau of
Driver Licensing, 849 A.2d 1135, 1143-44 (Pa. 2004) (internal citations omitted).
Classifications falling into the first category are strictly construed in light of a
compelling governmental purpose. Id. at 1144. A classification that falls in the
second category is subject to a heightened standard of scrutiny that is applied to an
important governmental purpose. Id. When a statutory scheme falls into the third
category, the statute is upheld if any rational basis exists for the classification.

Instantly, Petitioner has not identified any right – fundamental, important, or
otherwise – that is implicated by the MMA or CSA, and he does not claim to be part
of a suspect class. Petitioner simply asserts, without benefit of supporting legal
authority, that permitting the sale of medical marijuana under the MMA while
enforcing the prohibition of personal use marijuana under the CSA constitutes an
infringement of Petitioner’s liberty and property interests. Under Petitioner’s
reasoning, this matter is subject to strict scrutiny simply because he alleges an equal
protection violation.

We do not agree, as growing marijuana for personal use is not a
constitutionally protected right. Indeed, we do not discern how Petitioner has been
subject to differential treatment, as an individual convicted for possessing and
distributing marijuana under the CSA is not similarly situated to a licensed medical

15
marijuana grower and processor that is legally permitted to cultivate and
manufacture medical marijuana products under the MMA. In the absence of a
suspect class or a fundamental right, or an important right or sensitive classification,
we conclude that the rational basis test applies to the General Assembly’s
classification of those who are permitted to grow marijuana and those who are not.

The rational basis test employs a two-step analysis. First, we determine
whether the challenged statute seeks to promote a legitimate state interest or public
value. Kramer v. Workers’ Comp. Appeal Bd. (Rite Aid Corp.), 883 A.2d 518, 534
(Pa. 2005). If so, we then determine whether the legislative classification is
reasonably related to accomplishing that state interest. Id. The classification need
only be directed at the accomplishment of a legitimate governmental interest and do
so in a manner that is not arbitrary or unreasonable. Id. Under a rational basis
analysis, the General Assembly is not required to “specifically articulate the purpose
or rationale supporting its action.” Id. It is enough that some rationale may
conceivably be the purpose and policy underlying the enactment. Id. Courts are free
to hypothesize as to why the General Assembly created the classification at issue
and, if a legitimate reason exists therefore, the provision cannot be struck down, even
if its soundness or wisdom could be deemed questionable. Id.

In enacting the MMA, the General Assembly declared that scientific evidence
suggested that medical marijuana could “mitigate suffering in some patients and also
enhance quality of life.”18 Section 102(2) of the MMA states that “[t]he
Commonwealth is committed to patient safety” and that careful regulation of a
medical marijuana program that “allows access to medical marijuana [would]

18
Section 102(1) of the MMA, 35 P.S. § 10231.102(1).

16
enhance patient safety while research into its effectiveness continues.”19 Per Section
102(3) of the MMA, 35 P.S. § 10231.102(3), the intent of the General Assembly in
enacting the MMA is to
(i) [p]rovide a program of access to medical marijuana [that]
balances the need of patients to have access to the latest
treatments with the need to promote patient safety[;]

(ii) [p]rovide a safe and effective method of delivery of
medical marijuana to patients[;] and

(iii) [p]rovide high quality research into the effectiveness and
utility of marijuana.

Any “Commonwealth-based program” providing access to medical marijuana
is a “temporary measure, pending Federal approval of and access to medical
marijuana through traditional medical and pharmaceutical avenues.”20

Section 4(1)(iv) of the CSA,21 on the other hand, designates marijuana as a
Schedule I controlled substance, which is a substance found by the Secretary of
Health of the Commonwealth of Pennsylvania to have “a high potential for abuse,
no currently accepted medical use in the [United States], and a lack of accepted
safety for use under medical supervision.”22

We reject Petitioner’s argument that this differential treatment of marijuana,
and marijuana users, implicates the equal protection under the Fourteenth
Amendment. The MMA established a limited and specific program whereby

19
35 P.S. § 10231.102(2).

20
35 P.S. § 10231.102(4).

21
35 P.S. § 780-104(1)(iv).

22
35 P.S. § 780-104(1).

17
medical marijuana could be legally obtained. The MMA was not enacted for the
purpose of removing marijuana that is not subject to regulation, testing, or approval,
from the list of Schedule I controlled substances in the CSA. In point of fact,
Petitioner acknowledges in his principal brief that the Commonwealth “[arguably]
has a right to regulate the commerce of cannabis to promote safety.” Petitioner’s Br.
at 10. Petitioner’s personal objections to what he considers overpriced and
“nutrient[-]deprived chemical[ly] contaminated”23 medical marijuana is not relevant
to our analysis. The General Assembly has a legitimate governmental interest in
patient safety. Because the MMA’s stated purpose of creating a carefully regulated
medical marijuana program that provides access to medical marijuana in an effort to
“mitigate suffering in some patients and also enhance quality of life” is reasonably
related to accomplishing that interest,24 the MMA passes equal protection scrutiny
under the rational basis test and is, therefore, constitutionally sound.

Petitioner’s substantive due process claim suffers from the same defect as his
failed equal protection claim. As a preliminary matter, for substantive due process
rights to attach, there must be a deprivation of a property right or other
constitutionally protected interest. Khan v. State Bd. of Auctioneer Exam’rs, 842
A.2d 936, 946 (Pa. 2004). Thus, the threshold inquiry for a constitutional challenge
based on substantive due process grounds is whether the challenged statute purports
to restrict or regulate a constitutionally protected right. To withstand a substantive
due process challenge, a statute must seek to achieve a valid state objective by means
that are rationally related thereto, which requires that the statute have a real and
substantial relationship to the object sought to be obtained. Id. A substantive due

23
Petitioner’s Br. at 12.

24
Section 102(1) of the MMA, 35 P.S. § 10231.102(1).

18
process analysis requires that the rights of the individual be balanced against the
public interest. Id.

Instantly, Petitioner has not specified the constitutionally protected right or
interest that has been violated, beyond an asserted “fundamental right to be free from
unequal protection and unfairness in the deprivation of liberty under the color and
authority of law[,] which is a fundamental right in and of itself.” Petitioner’s Br. at
14. Indeed, Petitioner appears to concede that our decision here “ultimately comes
down to whether or not the [General Assembly’s] justification for the [MMA] is
sufficient or insufficient.” Id. at 15. In the absence of a constitutionally protected
right or interest that is infringed by the MMA, we conclude that Petitioner has failed
to state a viable substantive due process claim.

Based on the above discussion, because Petitioner has failed to state viable
equal protection and substantive due process claims, we sustain the
Commonwealth’s fourth PO.25

III. Conclusion

Because Petitioner served the PFR in accordance with the requirement of Rule
1514(c), we overrule the Commonwealth’s first PO. We sustain the
Commonwealth’s second PO to the extent the PFR seeks mandamus relief and
sustain the Commonwealth’s third PO to the extent the PFR raises a claim in the
nature of an application for writ of habeas corpus or post-conviction relief.

25
It should be noted that, while the PFR purports to raise claims under 42 U.S.C. §1983,
the PFR contains no averments that anyone has deprived Petitioner of a cognizable federal right
while acting under color of state law.

19
Petitioner has failed to state viable equal protection and due process claims.
Accordingly, we sustain the Commonwealth’s fourth PO and dismiss the PFR.

ELLEN CEISLER, Judge

20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amro Elansari, :
Petitioner :
:
v. : No. 663 M.D. 2020
:
The Commonwealth of Pennsylvania, :
Respondent :

ORDER

AND NOW, this 16th day of September, 2024, the preliminary objection of
the Commonwealth of Pennsylvania (Commonwealth) as to service of a Petition for
Review filed by Amro Elansari (Petitioner) is hereby OVERRULED. Whereas
Petitioner’s claim for mandamus relief cannot be maintained against the
Commonwealth generally and this Court does not have jurisdiction over claims in
the nature of an application for writ of habeas corpus or post-conviction relief, and
Petitioner has failed to state viable equal protection and due process claims, the
Commonwealth’s remaining preliminary objections are hereby SUSTAINED. The
Petition for Review is hereby DISMISSED.

ELLEN CEISLER, Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10585141. Public record. Not legal advice.