The opinion
J-A14002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.S.D. A/K/A A.S.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.S.D. A/K/A A.S.D.
No. 3719 EDA 2016
Appeal from the Order Entered October 23, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 2550 August, 2016
BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.
CONCURRING MEMORANDUM BY BOWES, J.: FILED OCTOBER 24, 2017
I concur with the majority that, although A.S.D.’s petition complies
with the requirements listed in 54 Pa.C.S. § 702, our High Court’s holding in
Petition of Falcucci, 50 A.2d 200 (Pa. 1947), and our decision in In re
Harris, 707 A.2d 225 (Pa.Super. 1997), which require a hearing pursuant to
54 Pa.C.S. § 701(a.1)(3) in all circumstances, necessitate a remand for a
hearing.1 However, I write further to emphasize that A.S.D.’s compliance
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1 Section 701 of the Judicial Name Change statute reads, in relevant part:
(a) General rule.--Except as set forth in subsection (b) [relating
to information name changes], it shall be unlawful for any
person to assume a name different from the name by which
such person is and has been known, unless such changes in
name is made pursuant to proceedings in court in accordance
with subsection (a.1).
(a.1) Procedure.--
(Footnote Continued Next Page)
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with the technical requirements of the Judicial Change of Name statute, and
the evidence proffered by objectors to the petition, should be the sole
considerations utilized by the trial court when ruling on a name change
petition.2 In this regard, I am of like mind with Judge Popovich’s concurring
statement in In re Harris, supra.
(Footnote Continued) _______________________
....
(3) Upon filing of the petition, the court shall do all of the
following:
(i) Set a date for a hearing on the petition. The hearing
shall not be held less than one month nor more than
three months after the petition is filed.
54 Pa.C.S. § 701 (a) and (a.1)(3).
2 Section 702 sets forth the procedural requirements of the Judicial Change
of Name statute, in pertinent part, as follows:
(a) General rule.--The court of common pleas of any county may
by order change the name of any person resident in the
county.
(b) Procedure.--Prior to entry of an order of approval of change of
name, all of the following shall apply:
(1) The court must forward to the Pennsylvania State
Police a duplicate copy of the application for change of
name and a set of the person’s fingerprints. The person
applying for the change of name is responsible for costs
under this paragraph.
....
(c) Convicted felons.--
(Footnote Continued Next Page)
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In enunciating his position, Judge Popovich highlighted the rationale
underlying the change of name statute, noting that the primary purpose
is to prohibit fraud by those trying to avoid financial obligations.
This intent is reflected in the penalty provision of the statute,
which applies only to ‘person[s] violating the provision of this
chapter for the purpose of avoiding payment of taxes or other
debts.’
Id. at 229 (Popovich, J., concurring) (citing Commonwealth v. Goodman,
676 A.2d 234, 236 (Pa. 1996)). He observed that the statute is purely
procedural, and absent an indication of fraudulent intent, “[t]his is where the
inquiry ends.” Id. at 229. Judge Popovich took exception to cases, such as
this, where a transgender person filed an unopposed petition to validate a
name change where that person had been living under an assumed name
which matched that person’s gender identity for an extended period of time.
He argued that such petitions should be granted without “probing into [the
(Footnote Continued) _______________________
(1) The court may order a change of name for a person
convicted of a felony, subject to the provisions of
paragraph (2), if:
(i) at least two calendar years have elapsed from
the date of completion of a person’s sentence
and that person is not subject to the probation
or parole jurisdiction of any court, county
probation agency or the Pennsylvania Board of
Probation and Parole; or
(ii) the person has been pardoned.
54 Pa.C.S. § 702.
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petitioner’s] sex or his desire to express himself in the manner of his
choosing.” Id.
I believe that the hearing required by 54 Pa.C.S. § 701(a.1)(3) is
intended to provide a forum for individuals or creditors to oppose a proposed
name change based on suspected fraudulent purposes or other nefarious
intent. In re Miller, 824 A.2d 1207, 1210-1211 (Pa.Super. 2003) (stating
“the necessity for judicial involvement in name change cases centers on
government concerns that persons not alter their identity to avoid financial
obligations.”) (brackets and citation omitted). Hence, any hearing held
pursuant to the Judicial Change of Name statute should focus only upon
evidence relating to these concerns and the requirements enunciated in §
702. I fear that any reason utilized outside the dictates of the statute to
deny a petition raises the specter of pretext and constitutes an abuse of
discretion.
Moreover, our High Court has long-held that the statute should be
construed liberally, and that a trial court should exercise its discretion “in
such a way as to comport with good sense, common decency and fairness to
all concerned and to the public.” In re Zachary Thomas Andrew Grimes,
609 A.2d 158, 160 (Pa. 1992) (quoting Falcucci, supra). Here, based on
the compelling nature of Appellant’s request, and in light of her compliance
with the statute, equity and fairness militate in favor of granting her petition
in order to align her name with her identity. Simply, the additional hurdles
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imposed by the trial court did not work to effectuate a liberal construction of
the statute or promote fairness in the proceedings.
Finally, in rendering its ruling, the trial court determined that,
notwithstanding Appellant’s satisfaction of the statute’s requirements, it
nevertheless retained discretion to deny her position. The trial court noted
that the statute “may order a change of name for a person convicted of a
felony [. . .] if at least two calendar years have elapsed from the date of
completion of a person’s sentence and that person is not subject to the
probation or parole of any court, county probation agency or the
Pennsylvania Board of Probation and Parole.” Trial Court Opinion, 1/27/17,
at 3 (emphasis in original) (citing 54 Pa.C.S. § 702(c)(1)(i)).
However, in that same section, the statute states, “The court may not
order a change of name for a person convicted of,” any one of a list of
enumerated offenses. 54 Pa.C.S. § 702(c)(2) (emphasis added). In light of
the seriousness of those offenses (including murder, voluntary
manslaughter, and rape), I believe that the legislature did not intend for the
court to exercise discretion with regard to name change petitions filed by
individuals convicted of those offenses. That is, the phrase “may not”
functions as a “shall not” for the purposes of the statute. This line of
reasoning supports the conclusion that the term “may” operates as a
mandatory, as opposed to a discretionary, mechanism within the confines of
the Judicial Change of Name statute. See A. Scott Enterprises, Inc. City
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of Allentown, 142 A.3d 779, 787 (Pa. 2016) (noting that “‘may’ can mean
the same as ‘shall’ where a statute directs the doing of a thing for the sake
of justice,” but holding that the statute’s plain language indicated it was
used permissively in that case). In addition, interpreting the statute as
requiring a court to grant a change of name petition, where its technical
requirements are met and there is no evidence of fraudulent intent,
comports with a liberal application of the act.
In summary, the statute provides the mechanism by which an
individual formerly convicted of a non-serious offense may apply for a name
change. It requires such an individual to wait two years following the
completion of her sentence before applying for a change of name.
Appellant, herein, fulfilled the dictates of the statute in this regard. The
statute does not delineate a further waiting period, such as the one-year
interval ordered by the court, before considering the name change
application. Since this timeframe is not found in the statute, I believe it
reflects an abuse of discretion and was fundamentally unfair to impose on
Appellant.
Thus, as in the case herein, where a transgender petitioner files an
unopposed name change petition, which comports with the requirements of
§ 702, I believe the petition should be granted if, upon holding the hearing,
the court finds no indication that the name change is being sought for
fraudulent purposes.
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P.J.E. Bender and Judge Shogan join this concurring memorandum.
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