                          [J-30-2017] [MO: Saylor, C.J.]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


STEVEN KONYK,                               :   No. 11 MAP 2016
                                            :
                    Appellant               :   Appeal from the Order of the
                                            :   Commonwealth Court at No. 538 MD
                                            :   2014 dated January 12, 2016.
             v.                             :
                                            :   SUBMITTED: March 27, 2017
                                            :
THE PENNSYLVANIA STATE POLICE               :
OF THE COMMONWEALTH OF                      :
PENNSYLVANIA,                               :
                                            :
                    Appellee                :


                    CONCURRING AND DISSENTING OPINION

JUSTICE WECHT                                               DECIDED: April 26, 2018
      As a threshold matter, I agree that Steven Konyk correctly named the

Pennsylvania State Police (“PSP”) as the respondent. The Majority cogently observes

that the PSP has substantive obligations under SORNA,1 including interpretation of

state and federal criminal provisions, enforcement of statutory requirements, and, most

importantly, creation and maintenance of the sexual offender registry.2 Indeed, in A.S.

v. PSP, 143 A.3d 896, 908 (Pa. 2016), we affirmed the issuance of a writ of mandamus

compelling the PSP to take action similar to that which Konyk seeks here. PSP’s claim

that Konyk sued the wrong party finds no support under the circumstances of this case.


1      SORNA is the commonly used acronym for the “Sex Offender Registration and
Notification Act,” 42 Pa.C.S. §§ 9799.10-9799.41.
2      See Maj. Op. at 5-6; 42 Pa.C.S. § 9799.16 (“The Pennsylvania State Police shall
create and maintain the registry.”).
       Proceeding to the merits, I find myself in both agreement and disagreement with

the Majority’s conclusions.     As to the former, I agree that Konyk is not entitled to

substantive relief under a third-party beneficiary theory. See Maj. Op. at 7-8. As to the

latter, I disagree with the Majority’s determination that Konyk cannot succeed on a claim

asserting the existence of an implied contract. Thus, and for the reasons that follow, I

respectfully dissent from the Majority’s decision affirming the Commonwealth Court’s

denial of relief.3

       “A contract implied in fact is an actual contract which arises where the parties

agree upon the obligations to be incurred, but their intention, instead of being expressed

in words, is inferred from [their] acts in the light of the surrounding circumstances.” Liss

& Marion, P.C. v. Recordex Acquisition Corp., 983 A.2d 652, 659 (Pa. 2009) (quoting

Elias v. Elias, 237 A.2d 215, 217 (Pa. 1968)). The statutory mandate imposing sexual

offender supervision created an implied contract that bound this Commonwealth to the

terms of Konyk’s plea bargain.

       In 2006, the United States Congress passed the Adam Walsh Child Protection

and Safety Act of 2006, Public Law 109-248, 42 U.S.C. §§ 16901-16991. That federal

enactment encouraged states, on pain of losing federal funding, to enact a tiered

statutory structure imposing notification and registration requirements for convicted

sexual offenders.     Commonwealth v. Muniz, 164 A.3d 1189, 1203-04 (Pa. 2017).

Pennsylvania responded by passing SORNA, which aimed “to bring the Commonwealth

into substantial compliance with the [Adam Walsh Act].”             Id. (citing 42 Pa.C.S. §

9799.10).



3       Accordingly, I join parts I, II, and III(A) of the Majority Opinion. I do not join parts
III(B) or III(C).



                              [J-30-2017] [MO: Saylor, C.J.] - 2
       SORNA abandoned Megan’s Law’s dual classification system of ten-year

reporting and lifetime reporting, replacing it with a three-tiered rubric designed to comply

with the federal statute. Notably, SORNA does not govern only those convicted in a

state court. SORNA’s tiers, terms, and conditions also apply to federal defendants who

are convicted of, or pleaded guilty to, a federal offense in a federal court.        Under

SORNA, an “offender” includes, inter alia, one who “on or after the effective date of this

section, is, as a result of a conviction for a sexually violent offense, an inmate in a

Federal correctional institution or is supervised by Federal probation authorities and

who . . . has a residence within this Commonwealth.” 42 Pa.C.S. § 9799.13(2.1)(i).

       The relationship between the relevant parties is straightforward.       Through its

Adam Walsh legislation, Congress urged states to pass a law creating a tiered system

for supervising sexual offenders.      Our General Assembly responded by enacting

SORNA.     In so doing, this Commonwealth agreed to supervise all federal sexual

offenders in Pennsylvania. Thus, every time a federal prosecutor offers a plea bargain

to a defendant who lives, works, or attends school in this Commonwealth, that

prosecutor knows that the defendant will be supervised by the PSP per the terms of the

bargain. The defendant also is informed by the federal court that he will be supervised

by the Commonwealth of Pennsylvania, not by the federal government. By enacting

SORNA, this Commonwealth has agreed to accept and supervise those offenders.

Through this statutory relationship, the Commonwealth has made itself a party to those

federal plea bargains, and has done so willingly. To become a part of the process, the

Commonwealth is not required to send a lawyer or probation officer or state trooper to

the federal sentencing hearing. The Commonwealth has interposed itself implicitly, by

statute. The federal prosecutor and the defendant both know this when negotiating the




                            [J-30-2017] [MO: Saylor, C.J.] - 3
plea, and the PSP knows this by accepting, per the terms of SORNA, supervision of

federal offenders.

      An implied contract arises when the parties first agree to the obligations to be

incurred. By agreeing via SORNA to accept federal sexual offenders, Pennsylvania has

undertaken the obligation at issue here. It is of no moment that the parties have not

expressly stated their intentions. The ongoing and systematic statutory relationship

demonstrates clearly the intent of the parties to abide by this agreement. Under these

circumstances, the elements of an implied contract are manifest.

      The effects of the Majority’s contrary holding are disconcerting. Less than two

years ago, this Court held that a criminal defendant is entitled to the benefit of the

sexual offender reporting terms of his or her plea bargain, despite the fact that the

subsequent enactment of        SORNA      would have     altered those terms.        See

Commonwealth v. Martinez, 147 A.3d 517 (Pa. 2016).4 For example, when a defendant

specifically bargained for charges that resulted in a ten-year reporting period, no change

in the law could alter those terms. Id. at 532-33. Martinez held that a plea bargain is

entitled to specific performance due, inter alia, to contract principles and the essential

nature of the plea bargaining process. Id. at 531-33. Our holding did not turn upon the

particular venue in which the plea was taken.

      The same considerations should animate our ruling in this case. The federal

prosecutor and Konyk both agreed to the terms of a plea bargain. Both parties are

entitled to the benefit of their bargain. The effect of plea bargaining on the criminal

justice system, and the mutual benefits that such bargains provide, are patent and


4     In Martinez, we addressed three consolidated cases, which arose where three
defendants each were awarded identical relief on identical claims by the same trial
judge. Martinez, 147 A.3d at 520.



                            [J-30-2017] [MO: Saylor, C.J.] - 4
unquestionable.    The only thing that distinguishes this case from Martinez at this

juncture is that Konyk pleaded guilty in a federal forum rather than in a state court.5 The

distinction should not matter. The Martinez considerations must apply with equal force

to a federal plea bargain. Indeed, the distinction is rendered immaterial inasmuch as

the Commonwealth by statute agreed to accept and supervise the federal defendants.

Federal prosecutors reasonably cannot expect that the terms of their negotiated pleas

are subject to alteration by state authorities.     The Commonwealth must accept the

offender as is, and, per Martinez, should be unable to change or revoke the bargain.

       Federal prosecutors will be hesitant to offer plea deals, and federal defendants

will be hesitant to accept them, if those agreements are subject to subsequent state

amendment. Permitting such post hoc changes contravenes the rationales that drove

our decision in Martinez. The promise of Martinez has proven illusory for Konyk. There

is no justification for such disparate treatment.

       Equity cannot countenance the unjust dichotomy created by the Majority’s

decision. Nonetheless, equity is not the basis for relief. Contract law is. SORNA

5       As the Majority notes, because this case is at the preliminary objection stage, we
are bound to accept Konyk’s factual averments as true. See Maj. Op. at 1, n.1 (citing
Sernovitz v. Dershaw, 127 A.3d 783, 785 n.2 (Pa. 2015)). In his petition, Konyk pled
that the ten-year reporting term was “an important consideration” in his decision to plead
guilty. See Petition for Review, 10/14/2014, at 6 ¶5. Accordingly, Konyk stands in a
position similar to that occupied by the appellants in Martinez. For present purposes,
the only factor that distinguishes this case from Martinez is the forum in which the plea
was taken. This factual distinction does not serve to displace the applicability of any of
the factors that we considered in reaching our Martinez decision. For preliminary
objection purposes, there is no reason to posit some jurisprudential differentiation
between the two cases, nor to deny Konyk the benefit of the Martinez holding.
       Of course, before Konyk might be entitled to the full relief that he seeks, he must
prove his factual averments to a fact-finder. Only then would he be able to establish
that the sexual offender term was a negotiated factor in his plea, and that he is entitled
to specific performance of that bargain. For today, it suffices to say that Konyk’s
averment of the bargain is adequate to overcome PSP’s preliminary objections.



                             [J-30-2017] [MO: Saylor, C.J.] - 5
creates an implied contract between the federal government and this Commonwealth. It

is the existence of this contract that compels the denial of PSP’s preliminary objections.

       Konyk has demonstrated that an implied contract existed, and that no viable

principle precludes facial application of our rationale and holding in Martinez. These

conclusions suffice to warrant denial of PSP’s preliminary objections. I would remand

the case to the Commonwealth Court for the case to be litigated in the normal course,

and to allow for the development of a factual record sufficient to determine whether

Konyk’s averments entitle him to the benefits of Martinez and enforcement of his plea

bargain.   See, supra, note 5.     Because the Majority denies this relief to Konyk, I

respectfully dissent.

       Justice Donohue and Justice Dougherty join this concurring and dissenting

opinion.




                            [J-30-2017] [MO: Saylor, C.J.] - 6
