J-A06029-18
2018 PA Super 335
IN RE: J.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.C. :
:
:
:
: No. 1391 WDA 2017
Appeal from the Order July 5, 2017
In the Court of Common Pleas of Allegheny County Juvenile Division at
No(s): CP-02-JV-0001886-2011
BEFORE: BENDER, P.J.E, SHOGAN, J., and STRASSBURGER, J.*
DISSENTING OPINION BY STRASSBURGER, J.:FILED DECEMBER 10, 2018
In this appeal, Appellant asks this Court to determine whether Act 21
constitutes punishment under Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2017) and Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.
2017). Appellant’s Supplemental Brief at 5. As noted by the Majority,
another panel of this Court recently examined this exact issue in In re H.R.,
___ A.3d ___, 2018 WL 4519816 (Pa. Super. filed Sept. 21, 2018).1 In
H.R., this Court held that Act 21 did not constitute punishment, even after
Muniz and Butler. Id. at *5. In doing so, we found Muniz and Butler
distinguishable because SORNA was found to be a punitive statute, whereas
1 Cf. Appellant’s Supplemental Brief at 5 (“Does 42 Pa.C.S. § 6403 (“Act
21”) constitute punishment as determined by a Muniz-Butler analysis.”)
with H.R., 2018 WL 4519816, at *2 (citation omitted) (“Is Act 21 punitive,
such that its retroactive application to [Appellant] and its mechanism for
determining whether an individual is a sexually violent delinquent child are
unconstitutional under [Muniz ] and [Butler ]?”).
*Retired Senior Judge assigned to the Superior Court.
J-A06029-18
under In re S.A., 925 A.2d 838 (Pa. Super. 2007), our Court previously
determined that Act 21 was non-punitive. H.R., 2018 WL 4519816, at *3-4.
“It is beyond the power of a Superior Court panel to overrule a prior
decision of the Superior Court, except in circumstances where intervening
authority by our Supreme Court calls into question a previous decision of
this Court.” Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super.
2006) (citations omitted). Because there has been so such intervening
authority, we are bound by H.R.’s holding that Act 21 is non-punitive. See
Pepe, 897 A.2d at 465. Therefore, I would find that Appellant’s claim
regarding Act 21 fails and would proceed to address his first claim. See
Appellant’s Brief at 6.
Additionally, given the disparity in analysis and ultimate conclusions
between the H.R. Court and the Majority here as to whether Act 21 is
punitive, and because this issue is of substantial public importance, I believe
this issue should be reviewed by this Court en banc or our Supreme Court.
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