November 7, 2017

By: Dennis Whitaker

Last week, Superior Court issued two interesting decisions, the first a Post Conviction Relief Act (PCRA) case stating the principle that appellate courts may address jurisdictional issues sua sponte, and the second addressing when expunction of criminal charges is appropriate. Meanwhile, Commonwealth Court issued a decision interpreting the Right to Know law (RTKL) vis-à-vis property tax assessment records. Check below for brief summaries of these decisions.

Commonwealth v. Serrano, No. 1080 EDA 2017, filed November 1, 2017.

Judge Panella wrote the decision for a panel including Judges Solano and Musmanno.

Serrano appealed from the judgment of sentence entered after his second plea of guilty to first degree murder. His first guilty plea was withdrawn after a PCRA court determined that it had been entered unknowingly. The panel concluded that the PCRA court lacked jurisdiction to void Serrano’s first guilty plea as the underlying PCRA petition was untimely filed, and therefore quashed his appeal.

The Commonwealth did not raise the timeliness issue, perhaps because, as the court noted, guilty plea counsel were ineffective for failing to advise Serrano that he was ineligible for the death penalty at the time he pleaded guilty, and clearly there was a breakdown in the operations of the court when the PCRA court failed to afford Serrano his right to counsel under 42 Pa. C.S. § 9545(b)(1)(i)-(iii) for his first petition. Following a recitation of the procedural history, the court reasoned as follows:

We may raise issues concerning our jurisdiction over an appeal sua sponte. See Roman v. McGuire Memorial, 127 A.3d 26, 31 (Pa. Super. 2015), appeal denied, 134 A.3d 57 (Pa. 2016). “PCRA timeliness requirements are jurisdictional in nature and, accordingly, a court cannot hear untimely PCRA petitions.” Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa. 2004) (citations omitted).

As noted, Serrano’s first PCRA petition, filed April 16, 2009, was untimely and did not allege any exceptions to the PCRA’s time bar. Thus, Serrano’s 2016 initial petition and the amendment are also facially untimely. Neither of the 2016 petitions assert any exception to the PCRA’s time bar.


However, it is also clear that the PCRA court lacked jurisdiction, at this juncture, to entertain any of these three petitions. If a PCRA petition is facially untimely, the petitioner must plead and prove the applicability of one of three timeliness exceptions in order to invoke the jurisdiction of the PCRA. See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Here, none of Serrano’s petitions pled, let alone proved, the applicability of a timeliness exception.

“Where a court is without jurisdiction it is without power to act and thus, any order that it issues is null and void.” Commonwealth v. Morris, 771 A.2d 721, 735 (Pa. 2001) (citations omitted). The PCRA court’s order withdrawing Serrano’s guilty plea was a nullity. The ensuing proceedings are therefore a nullity, as Serrano’s initial judgment of sentence is still effective. Thus, Serrano’s appeal from a non-existent judgment of sentence is also a nullity. See Commonwealth v. Spencer, 496 A.2d 1156, 1160 (Pa. Super. 1985).

We are constrained to quash this appeal. We note that, as a consequence, Serrano’s amended second PCRA petition is still pending. We do not address whether it may be further amended to plead appropriate timeliness exceptions. That is for Serrano’s counsel to develop, and the PCRA court to decide.

Commonwealth v. Hollerbach, No. 714 EDA 2017, filed November 1, 2017.

Judge Panella also wrote this decision, also for a panel consisting of Judges Solano and Musmanno.

Hollerbach was charged with criminal mischief, terroristic threats, and stalking. The stalking charge was dismissed by the magisterial district justice, the criminal mischief charge was nolle prossed, and Hollerbach pleaded guilty to a summary harassment charge. The record on the resolution of the terroristic threats charge was unclear. In 2016, Hollerbach petitioned the court to have the arrest records expunged from his record pursuant to 18 Pa. C.S. § 9122(b)(3)(i), which provides for the possibility of expungement of criminal history records related to a summary conviction when the defendant “has been free of arrest or prosecution for five years following the conviction for that offense.” The trial court denied Hollerbach’s petition and he appealed.

On the merits of Hollerbach’s appeal, Judge Panella wrote:

. . . criminal history records related to a conviction may be expunged “only under very limited circumstances that are set forth by statute.” Commonwealth v. Giulian, 141 A.3d 1262, 1267 (Pa. 2016) (citation omitted). In contrast, where a defendant has been acquitted of criminal charges, “he is generally entitled to automatic expungement of the charges for which he was acquitted” under his right to due process of law. Commonwealth v. Hanna, 964 A.2d 923, 925 (Pa. Super. 2009) (citations omitted).

Here, we are presented with hybrid circumstances. The criminal docket sheets reveal that Hollerbach was initially charged with three separate crimes arising from an incident that occurred on February 5, 2006: Criminal mischief/damage to property, terroristic threats, and stalking. After a preliminary hearing, the magisterial district judge dismissed the stalking charge and bound the first two charges over for trial.

The Commonwealth never sought to reinstate the stalking charge. Thus, the district magistrate found there was insufficient evidence to try Hollerbach on the stalking charge, and the Commonwealth acquiesced to this determination. See Pa.R.Crim.P. 544 (permitting the Commonwealth to refile charges previously dismissed by issuing authority). As such, Hollerbach is entitled to have all records of the stalking charge expunged.

Nor was Hollerbach convicted of the two charges that were bound over for trial. The criminal dockets reveal that the Commonwealth nolle prossed the criminal mischief/damage to property charge, while it changed the terroristic threats charge to the summary harassment/subject other to physical contact charge to which Hollenbach ultimately pled guilty. The Commonwealth argues that this record indicates that Hollenbach accepted a negotiated guilty plea. Thus, the Commonwealth believes that Hollenbach would be ineligible for expungement pursuant to Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001). In Lutz, a panel of this Court held that a petitioner is not entitled to expunction of the records of charges dismissed pursuant to a negotiated plea agreement.

A subsequent panel of this Court recognized that “Lutz is arguably inconsistent with broad language from this Court and our Supreme Court, as well as the prevailing trend of our case law.” Hanna, 964 A.2d at 928-929. However, the panel also acknowledged that Lutz is still controlling law until it is overruled by this Court en banc or by the Supreme Court of Pennsylvania. See id., at 929. We have not located any controlling precedent that overrules Lutz. Thus, we conclude that we are still bound by Lutz.

However, we disagree with the Commonwealth that the record before us establishes there was any form of plea agreement between the parties. The record indicates that, after Hollerbach filed a habeas corpus motion, the Commonwealth nolle prossed the criminal mischief charge, and changed the charge of terroristic threats to a charge of summary harassment. The guilty plea colloquy is not of record. Nor is there any other evidence that the Commonwealth responded to Hollerbach’s habeas corpus motion.

In fact, at the hearing on Hollerbach’s expungement petition, the Commonwealth did not present the testimony of any sworn witness. The assistant district attorney read documents that were purportedly the affidavits of probable cause. The trial court overruled Hollerbach’s objections to this process by noting that these readings were not being admitted for the truth of the assertions within the affidavits, but merely to provide context as to what the charges were. The Commonwealth offered no other evidence.

We are therefore left with two equally plausible interpretations of the record. It is possible that the Commonwealth is correct, and Hollerbach did enter into a negotiated plea agreement whereby the Commonwealth dropped these charges in consideration for the plea. However, it is also possible that the Commonwealth concluded that it could not meet its burden to overcome Hollerbach’s habeas corpus motion, and this may be the reason it nolle prossed the criminal mischief charge and changed the terroristic threats charge to a summary harassment charge. As such, we cannot conclude that Lutz controls this case based upon the record before us.

Under these circumstances, we conclude that Hanna is controlling. There, as here, the hearing on the expungement petition “consisted primarily of oral argument rather than sworn testimony.” 964 A.2d at 928. Thus, “the current state of the certified record is inadequate to resolve” the factual dispute over the existence of a plea agreement. Id. “[W]e are constrained to vacate the existing order and remand for further proceedings so that the trial court may resolve these factual disputes, and support its factual findings with evidence that may be found in the certified record.” Id. Hollenbach is entitled to expunction for the stalking charge, and we therefore reverse the trial court’s order in this regard. As to the remaining charges, we vacate the order and remand for further proceedings consistent with this memorandum.

Butler Area Sch. Dist., v. Pennsylvanians for Union Reform, ___ A.3d ___ (Pa. Cmwlth. 2017), No. 1461 C.D. 2014, filed November 2, 2017.

Judge Simpson, joined by Judge Covey, wrote the majority opinion, Judge Wojcik dissented.

The issue before the court was whether, in the context of the RTKL, addresses contained in property tax assessment records, that are public under statute and case law, are protected by the right to privacy in Article I, Section 1 of the Pennsylvania Constitution, as construed by the Supreme Court in Pennsylvania State Educ. Assoc. (PSEA) v. Dep’t of Comm. & Econ. Devel., 148 A.3d 142 (Pa. 2016).

Pennsylvanians for Union Reform (PFUR) appealed from two orders of the Butler County Court of Common Pleas (trial court) denying access to addresses requested under the RTKL. PFUR sought the property tax assessment list from the Butler Area School District, as well as its Superintendent’s home address. The Office of Open Records (OOR) upheld the District’s denial of addresses of public school employees based on a single-judge order issued by Commonwealth Court in litigation brought by PSEA. During the PSEA litigation, Commonwealth Court enjoined OOR from ordering disclosure of school employees’ home addresses based on a constitutional right to privacy. OOR directed the District to redact public school employees’ home addresses from the assessment list. Citing the PSEA injunction, the trial court vacated OOR’s redaction order, and permitted the District to withhold the entire assessment list. PFUR appealed.

On appeal, PFUR argued that the trial court erred in holding the injunction enjoins the District from disclosing home addresses of public school employees because the District was not a party to the PSEA litigation. It contends the injunction did not bind the trial court. Notwithstanding those issues, PFUR also argued that the trial court erred in extending the injunction to protect the entire assessment list. PFUR emphasized that the assessment list is a public record under statute and case law construing the RTKL’s statutory predecessor. The Pennsylvania News Media Association submitted an amicus brief supporting PFUR’s position.

The District argued that the trial court’s opinion was in conformity with the injunction. It argued that the injunction bound school districts because it required OOR to notify all school districts that disclosure of home addresses was stayed pending resolution of the PSEA litigation. The District also argued that the injunction bound the trial court because Commonwealth Court is a superior tribunal. Based on the PSEA decision cited above, the District asserted public school employees’ home addresses in the assessment list are protected by a constitutional privacy right.

After a lengthy review of the injunction breadth, the RTKL and its predecessor statute, the nature of the records sought and PSEA related cases on privacy, the court held that the entire assessment list was a public record, as follows:

First and foremost, the [assessment list] is a public record by statute. 53 Pa. C.S. §8841(d). The statutory public nature of the information precludes a subjective or objective expectation that addresses contained therein are personal. In essence, the General Assembly already determined the necessity for access to property tax records outweighs any right to shield the addresses from view.

Second, the [assessment list] shows the ownership of real property. Ownership of real property is not an inherently personal matter. At their core, real property tax records document sources of government revenue. Property addresses correspond to properties within a taxing district regardless of owner identity. Address information is integral to the [assessment list]. Without a property address, a property tax assessment record is of little value. Further, addresses within the [assessment list] are essential parts of tax assessment records. Such address information is necessary for tax assessments, which affect the public fisc. By virtue of its purpose and context, an address contained in the [assessment list] is public in nature.

Third, the source of the information contained in the [assessment list] is not necessarily an individual. Cf. [Juniata Valley School District v. Wargo, 797 A.2d 428 (Pa. Cmwlth. 2002)]. Indeed, the real property listed in property tax records may be owned by corporations or other entities. The constitutional right to informational privacy only inures to individuals. Stated differently, individuals, as distinct from “persons” (which may include corporations), may assert a privacy interest under Article I, Section 1.

Fourth, [Pennsylvania State Educ. Assoc. (PSEA) v. Dep’t of Comm. & Econ. Devel., 148 A.3d 142 (Pa. 2016)] held that privacy jurisprudence under the [RTKL’s statutory predecessor] guides which records implicate a privacy interest that warrants constitutional protection. That case law does not support a privacy interest in a property address, as distinguished from a home address. [Goppelt v. City of Phila. Revenue Dep’t, 841 A.2d 599 (Pa. Cmwlth. 2004)]; [Dooley v. Luzerne Cnty. Bd. of Assessment Appeals, 649 A.2d 728 (Pa. Cmwlth. 1994)]. By linking home addresses with personal telephone numbers and Social Security numbers, it is evident that applicable precedent protects personal identifiers. See [Tribune-Review Publ’g Co. v. Bodack, 961 A.2d 110 (Pa. 2008)]; [Penn State Univ. v. State Emps.’ Ret. Bd., 935 A.2d 530 (Pa. 2007)]; [Sapp Roofing Co. v. Sheet Metal Workers’ Int’l Ass’n, Local Union No. 12, 713 A.2d 627 (Pa. 1998) (plurality op.)].

In sum, [Pennsylvania State Educ. Assoc. (PSEA) v. Dep’t of Comm. & Econ. Devel] does not require a longstanding public record like the [assessment list] to be subjected to a balancing test. Addresses contained in the [assessment list] are fundamentally different from the public school employees’ home addresses at issue in [Pennsylvania State Educ. Assoc. (PSEA)]. In a request for a home address of a specified individual or group of individuals, the address becomes a personal identifier, and a means of disturbing an individual in his own home. See, e.g., Hartman v. Dep’t of Conserv’n & Natural Res., 892 A.2d 897 (Pa. Cmwlth. 2006) (protecting names and home addresses of snow mobile owners under [RTKL statutory predecessor]). Although a request for a home address that is tied to an individual implicates a judicial balancing test, a request for the [assessment list] does not.

Based on statute and case law, we hold addresses contained in the [assessment list] are not personal in nature. As a consequence, we discern no individual privacy interest in nondisclosure that may be balanced against the public interest in disclosure. Therefore, the trial court erred in allowing the School District to withhold the entire [assessment list].

___ A.3d ___, Slip op., at 17-18 (footnote omitted). The court noted further that were judicial balancing necessary, it would have remanded to the fact finder to weigh the interest in disclosure versus privacy interests. Judge Wojcik would remand this matter to the OOR for further consideration consistent with the Supreme Court’s analysis and holding in Pennsylvania State Educ. Assoc. (PSEA).

About the Author:

Dennis A. Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service.  Focusing on government appellate and original jurisdiction practice in state and federal courts, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating the appeals process.