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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: A.S.D. A/K/A A.S.D.                       IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
APPEAL OF: A.S.D. A/K/A A.S.D.



                                                      No. 3719 EDA 2016


                Appeal from the Order Entered October 23, 2016
              In the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): 2550 August, 2016


BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

CONCURRING MEMORANDUM BY BOWES, J.:                FILED OCTOBER 24, 2017

        I concur with the majority that, although A.S.D.’s petition complies

with the requirements listed in 54 Pa.C.S. § 702, our High Court’s holding in

Petition of Falcucci, 50 A.2d 200 (Pa. 1947), and our decision in In re

Harris, 707 A.2d 225 (Pa.Super. 1997), which require a hearing pursuant to

54 Pa.C.S. § 701(a.1)(3) in all circumstances, necessitate a remand for a

hearing.1    However, I write further to emphasize that A.S.D.’s compliance

____________________________________________


1   Section 701 of the Judicial Name Change statute reads, in relevant part:

     (a)   General rule.--Except as set forth in subsection (b) [relating
           to information name changes], it shall be unlawful for any
           person to assume a name different from the name by which
           such person is and has been known, unless such changes in
           name is made pursuant to proceedings in court in accordance
           with subsection (a.1).

     (a.1) Procedure.--
(Footnote Continued Next Page)
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with the technical requirements of the Judicial Change of Name statute, and

the evidence proffered by objectors to the petition, should be the sole

considerations utilized by the trial court when ruling on a name change

petition.2 In this regard, I am of like mind with Judge Popovich’s concurring

statement in In re Harris, supra.

(Footnote Continued) _______________________

      ....

          (3) Upon filing of the petition, the court shall do all of the
          following:

               (i) Set a date for a hearing on the petition. The hearing
               shall not be held less than one month nor more than
               three months after the petition is filed.

    54 Pa.C.S. § 701 (a) and (a.1)(3).

2 Section 702 sets forth the procedural requirements of the Judicial Change
of Name statute, in pertinent part, as follows:

    (a)   General rule.--The court of common pleas of any county may
          by order change the name of any person resident in the
          county.

    (b)   Procedure.--Prior to entry of an order of approval of change of
          name, all of the following shall apply:

             (1) The court must forward to the Pennsylvania State
                Police a duplicate copy of the application for change of
                name and a set of the person’s fingerprints. The person
                applying for the change of name is responsible for costs
                under this paragraph.

                 ....

    (c) Convicted felons.--

(Footnote Continued Next Page)


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      In enunciating his position, Judge Popovich highlighted the rationale

underlying the change of name statute, noting that the primary purpose

      is to prohibit fraud by those trying to avoid financial obligations.
      This intent is reflected in the penalty provision of the statute,
      which applies only to ‘person[s] violating the provision of this
      chapter for the purpose of avoiding payment of taxes or other
      debts.’

Id. at 229 (Popovich, J., concurring) (citing Commonwealth v. Goodman,

676 A.2d 234, 236 (Pa. 1996)).            He observed that the statute is purely

procedural, and absent an indication of fraudulent intent, “[t]his is where the

inquiry ends.” Id. at 229. Judge Popovich took exception to cases, such as

this, where a transgender person filed an unopposed petition to validate a

name change where that person had been living under an assumed name

which matched that person’s gender identity for an extended period of time.

He argued that such petitions should be granted without “probing into [the


(Footnote Continued) _______________________

             (1) The court may order a change of name for a person
                convicted of a felony, subject to the provisions of
                paragraph (2), if:

                       (i) at least two calendar years have elapsed from
                           the date of completion of a person’s sentence
                           and that person is not subject to the probation
                           or parole jurisdiction of any court, county
                           probation agency or the Pennsylvania Board of
                           Probation and Parole; or

                      (ii) the person has been pardoned.


54 Pa.C.S. § 702.



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petitioner’s] sex or his desire to express himself in the manner of his

choosing.” Id.

       I believe that the hearing required by 54 Pa.C.S. § 701(a.1)(3) is

intended to provide a forum for individuals or creditors to oppose a proposed

name change based on suspected fraudulent purposes or other nefarious

intent. In re Miller, 824 A.2d 1207, 1210-1211 (Pa.Super. 2003) (stating

“the necessity for judicial involvement in name change cases centers on

government concerns that persons not alter their identity to avoid financial

obligations.”) (brackets and citation omitted).     Hence, any hearing held

pursuant to the Judicial Change of Name statute should focus only upon

evidence relating to these concerns and the requirements enunciated in §

702.   I fear that any reason utilized outside the dictates of the statute to

deny a petition raises the specter of pretext and constitutes an abuse of

discretion.

       Moreover, our High Court has long-held that the statute should be

construed liberally, and that a trial court should exercise its discretion “in

such a way as to comport with good sense, common decency and fairness to

all concerned and to the public.” In re Zachary Thomas Andrew Grimes,

609 A.2d 158, 160 (Pa. 1992) (quoting Falcucci, supra). Here, based on

the compelling nature of Appellant’s request, and in light of her compliance

with the statute, equity and fairness militate in favor of granting her petition

in order to align her name with her identity. Simply, the additional hurdles


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imposed by the trial court did not work to effectuate a liberal construction of

the statute or promote fairness in the proceedings.

      Finally, in rendering its ruling, the trial court determined that,

notwithstanding Appellant’s satisfaction of the statute’s requirements, it

nevertheless retained discretion to deny her position. The trial court noted

that the statute “may order a change of name for a person convicted of a

felony [. . .] if at least two calendar years have elapsed from the date of

completion of a person’s sentence and that person is not subject to the

probation or parole of any court, county probation agency or the

Pennsylvania Board of Probation and Parole.” Trial Court Opinion, 1/27/17,

at 3 (emphasis in original) (citing 54 Pa.C.S. § 702(c)(1)(i)).

      However, in that same section, the statute states, “The court may not

order a change of name for a person convicted of,” any one of a list of

enumerated offenses. 54 Pa.C.S. § 702(c)(2) (emphasis added). In light of

the   seriousness    of   those   offenses    (including   murder,     voluntary

manslaughter, and rape), I believe that the legislature did not intend for the

court to exercise discretion with regard to name change petitions filed by

individuals convicted of those offenses.     That is, the phrase “may not”

functions as a “shall not” for the purposes of the statute.          This line of

reasoning supports the conclusion that the term “may” operates as a

mandatory, as opposed to a discretionary, mechanism within the confines of

the Judicial Change of Name statute. See A. Scott Enterprises, Inc. City


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of Allentown, 142 A.3d 779, 787 (Pa. 2016) (noting that “‘may’ can mean

the same as ‘shall’ where a statute directs the doing of a thing for the sake

of justice,” but holding that the statute’s plain language indicated it was

used permissively in that case).     In addition, interpreting the statute as

requiring a court to grant a change of name petition, where its technical

requirements are met and there is no evidence of fraudulent intent,

comports with a liberal application of the act.

      In summary, the statute provides the mechanism by which an

individual formerly convicted of a non-serious offense may apply for a name

change.      It requires such an individual to wait two years following the

completion of her sentence before applying for a change of name.

Appellant, herein, fulfilled the dictates of the statute in this regard.   The

statute does not delineate a further waiting period, such as the one-year

interval ordered by the court, before considering the name change

application.   Since this timeframe is not found in the statute, I believe it

reflects an abuse of discretion and was fundamentally unfair to impose on

Appellant.

      Thus, as in the case herein, where a transgender petitioner files an

unopposed name change petition, which comports with the requirements of

§ 702, I believe the petition should be granted if, upon holding the hearing,

the court finds no indication that the name change is being sought for

fraudulent purposes.


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     P.J.E. Bender and Judge Shogan join this concurring memorandum.




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