Opinion

S. Porter v. PA DOS

Court: Commonwealth Court of Pennsylvania
Filed: Jul 29, 2020
Status: Unpublished
On the bench: Leadbetter, S.J.
Cited by: 0 cases
Authority: More cited than 12.2%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Porter, a/k/a Chauntey :

Mo'Nique Porter; Adolphus Talley, Jr., :

a/k/a Alonda Talley; Robert Lee :

Noaker, Jr., a/k/a Priscylla Renee :

Von Noaker, :

Petitioners :

v. : No. 303 M.D. 2019

: ARGUED: February 13, 2020

Commonwealth of Pennsylvania; :

Pennsylvania Department of State; :

and Kathy Boockvar, in her capacity as :

Acting Secretary of the Commonwealth, :

Respondents :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: July 29, 2020

Before this Court for disposition is the application for summary relief

of Scott Porter, a/k/a Chauntey Mo'Nique Porter; Adolphus Talley, Jr., a/k/a Alonda

Talley; and Robert Lee Noaker, Jr., a/k/a Priscylla Renee Von Noaker (Petitioners)

and the preliminary objections of the Commonwealth of Pennsylvania; Pennsylvania

Department of State; and Kathy Boockvar in her capacity as Acting Secretary of the

Commonwealth (collectively, “Respondents”) to Petitioners’ petition for review in

our original jurisdiction challenging the constitutionality of a 1998 amendment to

what is known as the Commonwealth’s Judicial Change of Name Act (Act), 54

Pa.C.S. §§ 701-705. For the reasons that follow, we deny Petitioners’ application

for summary relief; sustain Respondents’ preliminary objections numbered one, two,

and four; and dismiss Petitioners’ petition for review.

In Pennsylvania, the procedure for pursuing a name change is as

follows. Pursuant to 54 Pa.C.S. § 702(a), “[t]he court of common pleas of any

county may by order change the name of any person resident in the county.” To

initiate a name change, an individual must petition a court of common pleas and

provide fingerprints. Before approving a name change, common pleas must forward

a duplicate copy of the application and a set of the applicant’s fingerprints to the

Pennsylvania State Police (PSP) for purposes of ascertaining whether the applicant

is subject to 18 Pa.C.S. Chapter 91, relating to criminal history record information.

54 Pa.C.S. § 702(b)(1) and (2). Depending upon the outcome, PSP either notes the

name change on the individual’s criminal history record information or destroys the

fingerprints. 53 Pa.C.S. § 702(b)(3). PSP is required to certify the outcome to

common pleas within sixty days of receipt of the application and fingerprints. 54

Pa.C.S. § 702(b)(4).

The disputed 1998 amendment, found at 54 Pa.C.S. § 702(c)(1) and (2),

restricts and/or prohibits the ability of persons with felony convictions to change

their names. Subsection (c)(1) restricts the ability of all people in Pennsylvania with

felony convictions from changing their names whereas subsection (c)(2) prohibits

those convicted of serious enumerated felonies from doing so. Specifically, the

amendment provides:

(1) The court may order a change of name for a

person convicted of a felony, subject to 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.

(2) The court may not order a change of name for a

person convicted of murder, voluntary manslaughter, rape,

involuntary deviate sexual intercourse, statutory sexual

assault, sexual assault, aggravated indecent assault,

robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i) (relating

to robbery), aggravated assault as defined in 18 Pa.C.S. §

2702(a)(1) or (2) (relating to aggravated assault), arson as

defined in 18 Pa.C.S. § 3301(a) (relating to arson and

related offenses), kidnapping or robbery of a motor vehicle

or criminal attempt, criminal conspiracy or criminal

solicitation to commit any of the offenses listed above or

an equivalent crime under the laws of this Commonwealth

in effect at the time of the commission of that offense or

an equivalent crime in another jurisdiction.

54 Pa.C.S. § 702(c)(1)-(2). When common pleas grants the application of a

convicted felon subject to subsection (c)(1), the court “shall notify the Office of

Attorney General, the [PSP] and the office of the district attorney of the county in

which the person resides[.]” 54 Pa.C.S. § 702(c)(3). “[U]pon receipt of this notice,

[PSP] shall include the change of name information in the central repository as

provided for in 18 Pa.C.S. Ch. 91.” Id.

In the instant petition for review, Petitioners aver that they are

“transgender women who live openly in accordance with their female gender but

who are forced to use male legal names.” (Petition for Review, ¶ 1.) Alleging that

old felony convictions prevent them from changing their names, they aver that

discrimination and confusion result when they engage in everyday transactions and

present identification documents thereby causing others to perceive them as male.

(Id.) Consequently, they filed a petition for review in this Court’s original

jurisdiction challenging the constitutionality of the amendment. Although they

purport to challenge both 54 Pa.C.S. § 702(c)(1) and (2), they acknowledge that only

subsection (c)(2) impacts them due to the nature of their felony convictions (rape

and first-degree aggravated assault). In any case, they allege that the amendment

prevents them from changing their names such that the names on their government-

issued identification cards do not match their gender expression or identity.

By way of relief, Petitioners request declarations that the amendment is

unconstitutional under (1) article I, section 1 of the Pennsylvania Constitution

because it improperly infringes the right to control one’s name; (2) article I, section

7 because it improperly infringes the guarantee against compelled speech; and (3)

article I, section 1, as applied to them, because it violates their interest in avoiding

disclosure of personal matters.1 Accordingly, they request that this Court enjoin the

Commonwealth2 from enforcing the amendment.

Petitioners’ Application for Summary Relief

Article I, section 1 of the Pennsylvania Constitution pertains to the “Inherent rights of

mankind” and provides:

All men are born equally free and independent, and have

certain inherent and indefeasible rights, among which are those of

enjoying and defending life and liberty, of acquiring, possessing and

protecting property and reputation, and of pursuing their own

happiness.

Pa. CONST. art. I, § 1.

Article I, section 7 of the Pennsylvania Constitution pertains to “Freedom of press and

speech; libels” and, in relevant part, provides: “The free communication of thoughts and opinions

is one of the invaluable rights of man, and every citizen may freely speak, write and print on any

subject, being responsible for the abuse of that liberty.” Pa. CONST. art. I, § 7.

In the petition for review, Petitioners aver that they are seeking declaratory and injunctive

relief against “the Commonwealth and an officer thereof in her official capacity.” (Petition for

Review, ¶ 8.)

In the application for summary relief, Petitioners assert: “The [Act’s]

irrebuttable conviction bar at 54 Pa.C.S. § 702(c)(1)-(2) is unconstitutional on its

face and as applied to Petitioners. Accordingly, this Court should declare the

irrebuttable conviction bar to be unconstitutional and enter a permanent injunction

against its enforcement.” (Application for Summary Relief at 1.)

With respect to summary relief, Rule 1532(b) of the Pennsylvania Rules

of Appellate Procedure provides: “At any time after the filing of a petition for review

in an appellate or original jurisdiction matter the court may on application enter

judgment if the right of the applicant thereto is clear.” Pa. R.A.P. 1532(b). The

Court should deny the application if there are material issues of fact in dispute or if

it is not clear that the applicant is entitled to judgment as a matter of law. Hennessey

v. Pa. Bd. of Pardons, 655 A.2d 218 (Pa. Cmwlth. 1995). As we determine below

in the context of Respondents’ preliminary objections, Petitioners’ right to relief is

not clear because their petition for review cannot stand.

Respondents’ Preliminary Objections

In the preliminary objections, Respondents assert: (1) misjoinder of

parties–neither the Department of State nor Secretary of the Department of State has

any claim or interest in the case in that neither plays a role in legal name-change

requests; (2) demurrer–failure to state a claim against any of the named Respondents;

(3) demurrer–legal insufficiency of Counts 1 and 3 (due process claims), Count 2

(free speech); and (4) lack of capacity to sue–no standing to challenge 54 Pa.C.S. §

702(c)(1).3 We find disposition of the preliminary objections numbered one, two,

This Court denied Respondents’ application for stay of Petitioners’ application for summary

relief and answer thereto. Additionally, we ordered that “Petitioners’ August 14, 2019 brief in

support of their answer to Respondents’ preliminary objections [be] stricken.” (August 16, 2019,

Order at 1.)

and four to be dispositive. Accordingly, we dismiss the petition for review without

addressing the third preliminary objection or any of Petitioners’ constitutional

claims.

Misjoinder of Parties

Pursuant to Rule 1028(a)(5) of the Pennsylvania Rules of Civil

Procedure, preliminary objections may be filed for joining improper parties in an

action. Pa. R.C.P. No. 1028(a)(5). Rule 2102(a)(2) 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 name the Commonwealth government as respondent. Pa. R.C.P. No. 2102(a)(2).

The Official Note to Rule 2102 recognizes that the sole exception is where the

legislature by statute has authorized an express right of action against the

Commonwealth generally. In support, the Official Note cites article I, section 11 of

the Pennsylvania Constitution and 1 Pa.C.S. § 2310. In relevant part, the

constitutional provision provides that “[s]uits may be brought against the

Commonwealth in such manner, in such courts and in such cases as the Legislature

may by law direct.” Pa. CONST. art. I, § 11. The statutory provision sets forth

absolute immunity for the Commonwealth of Pennsylvania. 1 Pa.C.S. § 2310. With

respect to that immunity, we have noted that “the Commonwealth government and

its various agencies and officers are separate entities and that ‘the Commonwealth

of Pennsylvania, itself, which is clearly not a Commonwealth agency, still enjoys

absolute immunity pursuant to 1 Pa. C.S. § 2310.’” Brouillette v. Wolf, 213 A.3d

341, 356 (Pa. Cmwlth. 2019) [citing Finn v. Rendell, 990 A.2d 100, 105 (Pa.

Cmwlth. 2010) (citations omitted and emphasis in original)].

In applying the foregoing, this Court in Brouillette addressed the issue.

The petitioners filed a three-count amended petition alleging that the respondents4

violated various constitutional provisions by establishing unbalanced budgets and

authorizing loans to cover deficits that extended beyond the relevant fiscal years.

Specifically ruling that the petitioners improperly joined the Commonwealth

generally as a respondent, we held that “any meaningful declaratory relief that this

Court could provide must be directed to the actions of some identifiable

Commonwealth party that violated some identifiable constitutional or statutory

provision rather than to the Commonwealth generally.” Id. at 356 n.16. (emphasis

added).

With respect to the Department and Secretary Boockvar, we have noted

that Commonwealth agencies and actors are proper parties in declaratory relief

actions only when they have or claim an interest that would be affected by the

declaration Pa. State Educ. Ass’n v. Dep’t of Educ., 516 A.2d 1308, 1310 (Pa.

Cmwlth. 1986). In the present case, Petitioners attempt to show that Respondents

have such an interest via three paragraphs of the petition for review. Turning first

to paragraph twenty-three, Petitioners aver that the disputed Act is a law of the

Commonwealth. However, the mere fact that the Act is a law of the Commonwealth

is insufficient to state a claim against Respondents Boockvaar and the Department

of State. See 1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 116 (3d Cir. 1993)

(holding that, “If we were to allow [joinder of] Commonwealth Officials in this

lawsuit based on their general obligation to enforce the laws of the Commonwealth,

The respondents included Governor Thomas Wolf; Treasurer Joseph Torsella; Auditor

General Eugene DePasquale; the Commonwealth of Pennsylvania; Speaker of the House of

Representatives Michael Turzai; House Majority Leader Dave Reed; President Pro Tempore of

the Senate Joseph B. Scarnati, III; Senate Majority Leader Jake Corman; and the General

Assembly.

we would quickly approach the nadir of the slippery slope; each state’s high policy

officials would be subject to defend every suit challenging the constitutionality of

any state statute, no matter how attenuated his or her connection to it.”).

Turning next to paragraphs twenty-four and twenty-five of the petition,

Petitioners aver that the Act falls within the purview of these Respondents by virtue

of various provisions in Title 54: 54 Pa.C.S. § 101 (defining department as

Department of State), 54 Pa.C.S. § 102 (functions and powers of department with

respect to Subchapter B of Chapter 1 of Title 15–corporations and unincorporated

associations), and 54 Pa.C.S. §§ 701-705 (Chapter 7 of Title 54 entitled “Judicial

Change of Name”). However, neither the Department of State nor its Secretary play

any role in the Act. As noted, an applicant desiring a name change must petition a

court of common pleas. A court of common pleas must forward a duplicate copy of

the application and a set of the individual’s fingerprints to PSP, which must certify

to the court what action PSP has taken. The Act does not include a requirement that

either common pleas or PSP notify Respondents of any action. The Act does not

impose any duties on Respondents, and Petitioners made no allegations that

Respondents failed to fulfill any duties. Finally, the Act does not require any filings

with the Department of State. Accordingly, we sustain Respondents’ misjoinder

preliminary objection.

Demurrer–Failure to State a Claim against any of the Named Respondents

Pennsylvania is a fact-pleading state. A plaintiff must allege facts to

demonstrate that the defendant acted or will act improperly in order to plead a cause

of action. Feldman v. Hoffman, 107 A.3d 821, 825 n.5 (Pa. Cmwlth. 2014). General

conclusions of law do not satisfy Pennsylvania’s fact-pleading requirements. Pa.

Pub. Util. Comm’n v. Zanella Transit, Inc., 417 A.2d 860 (Pa. Cmwlth. 1980). As

Respondents observe, Petitioners did not mention Respondents the Department of

State and Boockvaar in any of the three counts of the petition for review challenging

the constitutionality of the Act. Moreover, as noted above, since they play no role

in the challenged statute, it is hard to imagine what past or future conduct could have

been cited. Accordingly, Petitioners failed to state a cause of action against these

Respondents for failure to aver any factual allegations against them.

Lack of Capacity to Sue

Respondents assert that Petitioners lack capacity to sue because they

have no standing to challenge 54 Pa.C.S. § 702(c)(1), the subsection that applies to

individuals convicted of felonies that are not specifically enumerated in subsection

(c)(2)’s list of serious felonies. As noted, Petitioners conceded that only subsection

(c)(2) affected them due to the nature of their felony convictions (rape and first-

degree aggravated assault). Consequently, Petitioners lack capacity to sue with

respect to subsection (c)(1).

Conclusion

Accordingly, we sustain Respondents’ preliminary objections

numbered one, two, and four and dismiss the instant petition for review against the

named parties5; for the same reasons, we deny Petitioners’ application for summary

relief.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

Judge Covey did not participate in the decision on this case.

We express no opinion on the potential merits of a future suit against proper parties.