Commonwealth v. Neiman

CONCURRING AND DISSENTING OPINION BY

DONOHUE, J.:

I concur in the result reached by the Majority affirming the decision of the trial court. With regard to the challenge to the constitutionality of Megan’s Law III under the single purpose clause of Article III, Section 3 of the Pennsylvania Constitution, I would affirm the trial court because I believe that Appellant has waived the issue in this court for failure to develop an argument against the constitutionality of S.B. 92. Moreover, the Appellant does not even articulate a reason why the trial court’s specific reconciliation of S.B. 92 and the single purpose clause of the Pennsylvania Constitution was in error. Having failed to do so, the issue in my view is waived and the Appellant’s judgment of sentence should be affirmed based on the trial court’s opinion.1 Further, for the reasons discussed later, I dissent from the Majority’s decision to reach the constitutional issue in general and the severability of certain sections of S.B. 92, in specific.

The pertinent issue as presented by the Appellant states: “The Legislature Has Violated Article III, Section 3 by Enacting Bills That Contain More Than One Subject.” Appellant’s Brief at 32. The three page argument proceeds with a recitation of Article III, Section 3, id., and the following argument, which is set forth in its entirety:

The Pennsylvania Supreme Court recently explained that this section was intended to “place restraints on the legislative process and encourage an open, deliberative and accountable government.” City of Philadelphia and John F. Street v. Commonwealth of Pennsylvania, et al. [575 Pa. 542] 838 A.2d 566, 585 (2003). It noted that “a bill addressing a single topic is more likely to obtain a considered review than one addressing many subjects.” Id. at 586 [838 A.2d 566]. The test developed to determine whether a bill with multiple subjects should pass the “one subject” rule is *361whether “the provisions added during the legislative process assist in carrying out a bill’s main objective or are otherwise ‘germane’ to the bill’s subject as reflected in its title.” Id.

Id. The next paragraph, consisting of thirteen lines, sets forth the history of the passage of S.B. 92. Id. and id. at 33. The following five paragraphs, which is more than half of the section of the brief dedicated to the Article III, Section 3 claim, recites the history of S.B. 390 (Megan’s Law II). Id. and id. at 34. The Appellant’s argument concludes as follows:

For these reasons it would be appropriate to rule that the bills that enacted Megan’s Law II and III are in violation of the single subject rule. They should be declared unconstitutional in violation of Article III, Section 3. But see, Commonwealth v. Rhoads, 836 A.2d 159, 163 (Pa.Super.2003)(rejecting one subject claim on Megan’s Law II).

Id. at 34. Notably absent from the “argument” is a statement of any reason why S.B. 92 violates the single subject rule.

The trial court, burdened with the same type of briefing as presented here, cogently recognized that Appellant’s Concise Statement of Matters Complained of on Appeal appeared to copy similar pleadings filed in Megan’s Law challenges in sister jurisdictions. Trial Court Opinion, 10/11/07, at 6. The trial court’s observation is duly noted and could explain the reason why the Appellant’s brief in the trial court and appellate brief in this Court (filed on June 12, 2008), does not reference our Supreme Court’s most recent, exhaustive decision on Article III, Section 3, Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth of Pennsylvania, 583 Pa. 275, 877 A.2d 383 (Pa.2005).

“Our case law makes clear that there is a strong presumption in the law that legislative enactments do not violate our Constitution.” Id. at 292, 877 A.2d at 393. This court will find a statute unconstitutional “only if the Appellant convinces us” that the statute “clearly, palpably and plainly” violates the Constitution. Commonwealth v. Thur, 906 A.2d 552, 560-561 (Pa.Super.2006), appeal denied, 596 Pa. 745, 946 A.2d 687 (2008). In my view, the “clear, palpable and plain” standard for a constitutional challenge presupposes an especially thorough and developed argument on appeal.

We have repeatedly found waiver on issues on appeal where the Appellant neither offers citation to authority nor develops an argument in support of the claim. See, e.g., Commonwealth v. Brown, 741 A.2d 726, 734 (Pa.Super.1999) (and cases cited therein), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001); Commonwealth v. Hartzell, 988 A.2d 141, 145 (Pa.Super.2009), appeal denied, — Pa.-, 996 A.2d 1067 (2010). While Appellant in the case at bar offers a citation to one authority to mount his constitutional challenge, he does nothing to connect the authority to an argument against the constitutionality of S.B. 92. Appellant offers no argument to convince us that S.B. 92 clearly, palpably and plainly violates the single subject requirement of Article III, Section 3 of our Constitution. The Appellant instead leaves it in the hands of this Court to develop his argument. We have repeatedly held that it is not our role to develop arguments for parties. See, e.g., Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super.2007), appeal denied, 603 Pa. 679, 982 A.2d 509 (2009). In my view, the most egregious example of Appellant’s failure in this regard is that he does not attempt to mount an argument against the trial court’s finding that the provisions of S.B. 92 were related and germane to the single subject of amendments to Title 42 of the Pennsylvania Consolidated Statutes. *362Trial Court Opinion at 17. While I might agree with the Majority that this rationale is too encompassing to pass muster, the Appellant never challenges this finding by the trial court and in my view, Appellant’s failure in this regard requires affirmance of the trial court on the issue based on waiver.

While I am in agreement with the esteemed Majority’s recitation of the maxim that we can affirm the decision of the trial court for reasons other than those relied on by the trial court, our first line of inquiry is to determine whether the issue has been properly preserved on appeal. For the reason stated, namely abject failure to develop any argument, I would find the issue waived by Appellant.

Assuming there will be another challenge to S.B. 92,21 would save for another day and adequate appellate advocacy a decision on the constitutionality of S.B. 92 under Article III, Section 3. While it is clear that Appellant developed no argument against the bill’s constitutionality, this court was likewise presented with no cogent argument as to why S.B. 92 does not violate the single purpose clause of Article III, Section 3. The Attorney General was not put on notice of this appeal. The District Attorney of the forum county presented the position of the Commonwealth. Appellee’s original brief in this court attached the opinion of the trial court and asked this court to adopt it. Original Brief of Appellee at 2.3 As noted previously, the trial court offered a one sentence rationale for finding S.B. 92 not violative of the single purpose requirement. On reargument, the Appellee submitted a supplemental brief again relying on the trial court’s opinion and presented a one page argument reciting the title of S.B. 92 and offering, in one paragraph, that there was no evidence that the legislation’s original purpose changed, that the legislature was confused, or that it did not receive reasonable notice as to the statute. The Commonwealth offered one citation to authority for all of these propositions: Christ the King Manor v. DPW, 911 A.2d 624 (Pa.Cmwlth.2006), affirmed, 597 Pa. 217, 951 A.2d 255 (2008). Appellee’s Additional Brief at 1-2. The snippets of arguments are a conglomeration of Article III, Section 3 challenges, including the single purpose requirement, the clear expression of title provision, and the prohibition against the change in original purpose of legislative enactments. See generally id.

Importantly, no argument was presented on the issue of severability of portions of S.B. 92 including whether severance was necessary and if so, what sections should be severed. While I agree with the Majority that severance is a permissible tool to save the sections of a statute germane to the single purpose, I firmly believe that when a court engages in this drastic remedy, it should be guided by thoughtful advocacy and an understanding of the repercussions of such severance. While the repercussions may not alter a decision to sever, the public in general and the legal community in specific, should at the very least be apprised in an opinion from this court as to the effects of the severance ruling.

*363The result reached by the Majority has the effect of declaring the severed statutory provisions unconstitutional. Pennsylvanians Against Gambling, 583 Pa. at 809-10, 877 A.2d at 404 (unless inseparable, unconstitutional provisions should be severed from their constitutional counterparts; provisions violative of single subject requirement are stricken for lack of ger-maneness to single subject). The provisions the Majority strikes from S.B. 92 set statutes of limitations in certain asbestos cases4 and detailed and comprehensive procedures in deficiency judgment actions.5 These provisions have been in effect since November 24, 2004, and a declaration of unconstitutionality of a statute has retroactive effect. Commonwealth v. Muhammed, 992 A.2d 897, 903 (Pa.Super.2010). As a result of the Majority’s decision here, they are unconstitutional for any purpose; “it is if they were never enacted.” Glen-Gery Corp. v. Zoning Hearing Board of Dover Twp., 589 Pa. 135, 152, 907 A.2d 1033, 1043 (2006) (citations omitted). What repercussions will result from the Majority decision are unknown to this Court because we did not have the benefit of advocates’ insight on these issues. The learned Majority is technically correct that since the Commonwealth was a party to this appeal, notice to the Attorney General was not necessary. (Maj. Op. at 355 n. 2). Commonwealth v. Balog, 448 Pa.Super. 480, 672 A.2d 319, 321, appeal denied, 545 Pa. 660, 681 A.2d 176 (1996); cert. denied, 519 U.S. 1129, 117 S.Ct. 987, 136 L.Ed.2d 869 (1997). However, the absence of the Attorney General, or any amicus curiae with an informed perspective on S.B. 92 or an interest in preserving all of the sections of the legislative enactment, significantly hampered our review.

Moreover, the parties to this appeal have no obvious interest in the subject matter of the severed provisions. Thus an opportunity for our Supreme Court to review this case on a petition for allowance of appeal is questionable. Since I believe that the question of the constitutionality of S.B. 92 was waived by the Appellant, I would not reach the thorny issue of sever-ability. Accordingly, I respectfully dissent from that portion of the Majority opinion in specific and the decision reaching the Article III, Section 3 constitutional issue in general.6

. I concur in the decision of the Majority affirming the trial court on the remaining issues raised on appeal based on the opinion of the trial court. . To the extent that such affirmance in a published opinion by this court renders the trial court opinion prece-dential, I dissent from that result.

. S.B. 92 was enacted on November 24, 2004. All but two provisions dealing with residence verification under Megan's Law III (42 Pa. C.S.A. 9796(a) and (b)) were effective within 180 days of enactment. More than five years later, the case at bar presents the first Article III, Section 3 challenge to S.B. 92.

. I do not fault the Appellee in this regard because the Appellant did not challenge the trial court's rationale.

. 42 Pa.C.S.A § 5524.1.

. 42 Pa.C.S.A. § 8103(a), (b), (c)(3), and (5)(e) and (g); 42 Pa.C.S.A. § 8103(f.l), (f.2) and (g).

.Because I would decide this case based on the trial court’s opinion and find waiver of the Article III, Section 3 claim, I believe this case should be a non-precedential decision governed by Superior Court Internal Operating Procedure § 65.37.