Commonwealth v. Giulian
111 A.3d 201
Pa. Super. Ct.
2015
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COMMONWEALTH of Pennsylvania, Appellee v. Victoria C. GIULIAN, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 10, 2014. Filed Feb. 23, 2015.

201 A.3d 201

must give the pleader an opportunity to file an amended [pleading.]

.

In its opinion, the orphans’ court described a litany of pleading deficiencies within Devlin‘s petition. See e.g., O.C.O. at 6 (“[Devlin] made no specific averment in the [p]etition that [Diamond] perpetrated a fraud or was a bad faith purchaser.“). While these defects potentially call into question the legal sufficiency of Devlin‘s claims, the orphans’ court dismissed Diamond‘s preliminary objection in the nature of a demurrer as moot in light of its erroneous conclusion that the court lacked the requisite subject matter jurisdiction. Had the orphans’ court sustained Diamond‘s demurrer, instead of dismissing Devlin‘s petition for want of subject matter jurisdiction, Devlin would have been afforded an opportunity to amend his petition pursuant to Pa.R.C.P. 1033. Thus, we cannot affirm the orphans’ court‘s dismissal of Devlin‘s petition under the auspices of sustaining Diamond‘s preliminary objection in the nature of a demurrer.

For the foregoing reasons, the orphans’ court erred in sustaining Diamond‘s preliminary objections upon the basis that it lacked subject matter jurisdiction over Devlin‘s petition for citation.5 Accordingly, we vacate the orphans’ court‘s June 19, 2014 order sustaining Diamond‘s preliminary objections and dismissing Devlin‘s petition, and we remand for further proceedings consistent with this opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

Jason S. Dunkle, State College, for appellant.

Adam L. Morris, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STABILE, J.

OPINION BY SHOGAN, J.:

Appellant, Victoria C. Giulian, appeals from the April 30, 2014 order that denied her petition for expungement. For the reasons that follow, we affirm.

In 1997, Appellant pled guilty to the summary offenses of underage drinking, harassment, and public drunkenness (“the 1997 offense“). In a separate matter, nearly one year later, Appellant pled guilty to the summary offense of criminal mischief (“the 1998 offense“).

On May 8, 2013, Appellant filed petitions to expunge both the 1997 offense and the 1998 offense. The Centre County District Attorney objected to the expungement of the 1997 offense. The objection was based on the fact that Appellant had been arrested and pled guilty to the 1998 offense; thus, she had not remained arrest or prosecution free for the five years following her conviction for the 1997 offense as required by 18 Pa.C.S. § 9122(b)(3)(i).1 On June 24, 2013, the trial court granted Appellant‘s petition to expunge the 1998 offense because Appellant had been free from arrest or prosecution following that conviction. However, following a hearing and an opportunity to brief the issue, the trial court denied Appellant‘s petition to expunge the 1997 offense in an order filed on April 30, 2014. This timely appeal followed.

On appeal, Appellant raises one issue for this Court‘s consideration:

Did the trial court commit an error of law in finding that [Appellant] was not statutorily eligible to have her summary convictions expunged pursuant to 18 Pa. C.S.A. § 9122(b)(3) despite the fact that [Appellant] has been free of arrest and prosecution for more than five years following the convictions?

Appellant‘s Brief at 4.

“The intent of an expungement statute is ‘to protect that individual from the difficulties and hardships that may result from an arrest on record.‘”

. However, “the decision to grant or deny a petition for expungement lies in the sound discretion of the trial court, who must balance ‘the individual‘s right to be free from harm attendant to maintenance of the arrest record against the Commonwealth‘s interest in preserving such records.‘”
(quoting
).2

Appellant‘s claim of error requires this Court to determine the correct interpretation of 18 Pa.C.S. § 9122(b)(3)(i). Statutory interpretation is a question of law, and therefore our scope of review is plenary, and our standard of review is de novo.

.

The statute at issue reads in relevant part as follows:

(b) Generally.—Criminal history record information may be expunged when:

* * *

(3)(i) An individual who is the subject of the information petitions the court for the expungement of a summary offense and has been free of arrest or prosecution for five years following the conviction for that offense.

18 Pa.C.S. § 9122(b)(3)(i) (emphasis added). Thus, the issue is whether the language contained in 18 Pa.C.S. § 9122(b)(3)(i) allows expungement when the petitioner is free of arrest or prosecution for any five-year period following conviction, or for the five-year period immediately following the conviction. After review, we agree with the trial court that the correct interpretation is the latter.

Basic rules of statutory construction set forth that statutes shall be construed to give effect to all its provisions, if possible, keeping in mind that the legislature did not intend any statutory language to exist as mere surplusage.

(citation and quotation marks omitted); 1 Pa.C.S. § 1921(a), (b).

Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition. 1 Pa.C.S. § 1903(a). Additionally, under the rule of lenity, penal statutes must be strictly construed, and ambiguities must be resolved in favor of the criminal defendant.

. Here, however, we discern no ambiguity.

If the General Assembly intended 18 Pa.C.S. § 9122(b)(3)(i) to require only that Appellant remain free of arrest or prosecution for any period of five years following her conviction for the 1997 offense, it would not have utilized the phrase “following the conviction for that offense,” and the statute would have read, in relevant part, as follows:

An individual who is the subject of the information petitions the court for the expungement of a summary offense and has been free of arrest or prosecution for five years[.] following the conviction for that offense.

Because we may not disregard statutory language as mere surplusage,

, we agree with the trial court‘s interpretation that Appellant was required to remain free of arrest or prosecution for the five years immediately following her conviction for the 1997 offense. Therefore, as Appellant was not free of arrest or prosecution for the five years following the 1997 offense, we discern no error or abuse of discretion in the trial court‘s order denying her petition to expunge the 1997 offense. Accordingly, we affirm.

Order affirmed.

See also

.

Notes

1
As noted above, Appellant also pled guilty to one count of underage drinking arising from the 1997 offense. However, the underage drinking conviction was expunged pursuant to 18 Pa.C.S. § 9122(a)(3). The underage drinking conviction was a specifically enumerated offense that did not require Appellant to remain arrest or prosecution free for the five years following her conviction in order to be eligible for expungement. Thus, the only convictions for which Appellant was denied expungement in the 1997 offense were harassment and public drunkenness; it is the denial of the petition to expunge those crimes that underlies this appeal.
2
The Wexler Court also discussed a non-exhaustive list of factors the court should consider when faced with a petition for expungement, which includes: the strength of the Commonwealth‘s case against the petitioner; the reasons the Commonwealth gives for wishing to retain the records; the petitioner‘s age, criminal record, and employment history; the length of time that has elapsed between the arrest and the petition to expunge; and the specific adverse consequences the petitioner may endure should expunction be denied. Wexler, 431 A.2d at 879.
5
In his remaining issues, Devlin asserts generally that the orphans’ court erred in failing to allow the parties to take evidence by depositions pursuant to Pennsylvania Rule of Civil Procedure 1028(c)(2). Pa.R.C.P. 1028(c)(2) (stating that “the court shall consider evidence by depositions or otherwise” before ruling on a preliminary objection that raises an issue of fact). Although Devlin argues that the orphans’ court “should have permitted the parties to take evidence by depositions or otherwise to determine the facts and circumstances surrounding the diversion of the real estate of the decedent,” he does not allege that such factual questions were raised by Diamond‘s preliminary objections. Brief for Devlin at 10. Instead, Devlin raises only broad factual questions surrounding the underlying transaction, which are entirely outside of the scope of Diamond‘s preliminary objections. See id. at 9-10 (“[W]ho signed the deed masquerading as [Decedent?],” “[W]hat happened to the $85,000[?],” and “[W]ho negotiated the check[?]“). In any event, the orphans’ court‘s jurisdictional ruling effectively mooted these issues unless and until they arise in due course upon remand.
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