                           [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 dated January
                                             :   12, 2016 at No. 538 MD 2014
             v.                              :
                                             :   SUBMITTED: March 27, 2017
                                             :
THE PENNSYLVANIA STATE POLICE                :
OF THE COMMONWEALTH OF                       :
PENNSYLVANIA,                                :
                                             :
                    Appellee                 :


                                CONCURRING OPINION


JUSTICE TODD                                                  DECIDED: April 26, 2018
      Respectfully, I disagree with the majority’s determination that the Pennsylvania

State Police (”PSP”) is “an appropriate defendant” in this case, see Majority Opinion at

7; indeed, for the reasons discussed below, I conclude that, by suing PSP rather than

the Commonwealth, Appellant sued the wrong party, and, as a result, the

Commonwealth Court, in the first instance, should have adhered to its prior case law

and dismissed Appellant’s petition without prejudice to raise his claims against the

Commonwealth. Thus, I cannot join Part II of the majority’s opinion. Nevertheless,

because I agree with the majority’s ultimate conclusion that Appellant’s factual

averments (1) failed to support a claim that the Commonwealth is a third-party

beneficiary to his federal plea agreement; and (2) failed to support a claim that there

exists an implied contract between Appellant and the Commonwealth as a result of his

federal plea agreement, I join the remainder of the majority opinion, and its mandate.
       As recounted by the majority, on October 14, 2014, Appellant filed in the

Commonwealth Court’s original jurisdiction a Petition for Review in the Nature of a Writ

of Mandamus, naming the “Commissioner of the Pennsylvania State Police” as the

respondent, and seeking to compel PSP to change his sexual offender registration

status back to a ten-year period. On January 28, 2015, Appellant filed an Amended

Petition for Review in the Nature of a Writ of Mandamus, this time naming “The

Pennsylvania State Police of the Commonwealth of Pennsylvania” as the respondent.1

Appellant maintained below, and continues to maintain, that he is entitled to

enforcement of the terms of his federal plea agreement because: the Commonwealth

entered into an implied contract with him; the Commonwealth was a third-party

beneficiary to his federal plea agreement; and the Commonwealth, through its adoption

of Megan’s Law III, “intervened as a party in any federal court prosecution of an

equivalent Pennsylvania Megan’s Law crime.”           Appellant’s Brief at 24.   As the

Commonwealth points out, however, although PSP “is an arm of the Commonwealth,”

the Commonwealth and its agencies “are distinct legal entities.” Commonwealth’s Brief

at 13 (quoting Tork-Hiis v. Comm. of Pa., 735 A.2d 1256, 1259 (Pa. 1999) (observing

that the Commonwealth and the Department of Conservation and Natural Resources

are distinct legal entities).

1 The Commonwealth Court concluded that, notwithstanding the title of his petition,
Appellant was not actually requesting that PSP perform a mandatory duty, but was
asserting a common law contract claim against PSP and seeking equitable relief in the
form of specific performance of the terms of his federal plea agreement. Relying on its
decision in Taylor v. The Pennsylvania State Police, 132 A.3d 590, 594 (Pa. 2016)
(holding sexual offender’s petition, although titled an “Amended Petition for Review in
the Nature of a Writ of Mandamus seeking to Compel the [PSP] to Change Petitioner’s
Sexual Offender Registration Status,” was actually a petition for declaratory and
injunctive relief), the Commonwealth Court determined that it would construe
Appellant’s claims as common law contract claims seeking equitable relief, over which
the Commonwealth Court had original jurisdiction. Accordingly, the Commonwealth
Court overruled PSP’s mandamus-related preliminary objections in this regard.



                                    [J-30-2017] - 2
      The Commonwealth Court addressed a similar argument in Dougherty v.

Pennsylvania State Police of the Commonwealth of Pennsylvania, 138 A.3d 152 (Pa.

Cmwlth. 2016), wherein the appellant filed a petition for review in the nature of a writ of

mandamus, seeking to compel PSP to change his sexual registration status in

accordance with the terms of his plea agreement with the Commonwealth. As in the

instant case, PSP filed preliminary objections, alleging, inter alia, that the appellant’s

contract-based claims failed because PSP was not a party to the plea agreement.

      In sustaining PSP’s preliminary objections in this regard, the Commonwealth

Court in Dougherty explained:

                     Petitioner’s allegations focus on the terms of his plea
              agreement with the Commonwealth. The PSP's role in the
              SORNA statutory scheme is “more ministerial in nature than
              adjudicative.” Commonwealth v. Cheeseboro, 91 A.3d 714,
              721 (Pa.Super.2014). Under SORNA, in instances where,
              as here, the offender was serving a term of probation at the
              time of SORNA's enactment, the PSP receives registration
              information from the “appropriate office of probation and
              parole” and determines the duration of an offender's
              registration based on the offense of conviction. Section
              9799.19(e.1)(1) and 9799.15 of SORNA, 42 Pa.C.S. §§
              9799.19(e.1)(1), 9799.15.

                      Upon receipt of information concerning an offender
              convicted of a sexually violent offense prior to the enactment
              of SORNA, the PSP may take one of three steps. If the
              sentencing order provided to the appropriate correctional
              institution, office or board of probation and parole, or PSP by
              the sentencing court includes a specific term of registration,
              the PSP is bound to apply the registration term included in
              the sentence and nothing more. McCray v. Pennsylvania
              Department of Corrections, [872 A.2d 1127, 1133 (Pa.
              2005)] (executive branch agencies “lack[ ] the power to
              adjudicate the legality of a sentence or to add or delete
              sentencing conditions”). If, however, the sentencing order is
              unclear or ambiguous, the PSP may seek guidance from the
              sentencing court and/or other appropriate entities before
              applying the registration period upon a sexual offender. See
              Section 9799.16(d) of SORNA, 42 Pa.C.S. § 9799.16(d)


                                     [J-30-2017] - 3
             (stating that “[t]here shall be cooperation between the [PSP],
             State and county correctional institutions, the Pennsylvania
             Board of Probation and Parole, the county office of probation
             and parole, any court with jurisdiction over a sexual offender
             ... to ensure” that information is collected and placed on the
             registry.). Finally, if, the sentencing order is silent on the
             term of registration imposed upon the offender, the PSP
             must apply the appropriate registration period based on the
             offense of conviction as required by Section 9799.15 of
             SORNA, 42 Pa.C.S. § 9799.15.

                      In all three circumstances, the PSP has no duty to
             inquire into the content or intent of any underlying plea
             agreement. The PSP is not a party to the plea agreement
             and disputes over the alleged breach of a plea agreement,
             and the impact of the plea agreement on a sexually violent
             offender's duty to register with the PSP, are properly
             resolved through the criminal justice system in the
             appropriate sentencing court. See Commonwealth v. Bundy,
             96 A.3d 390, 394 (Pa.Super. 2014) (discussing the
             procedure for challenging the retroactive application of
             SORNA's registration requirement in light of a plea
             agreement); see also Commonwealth v. Partee, 86 A.3d
             245, 247 (Pa. Super.), appeal denied, [97 A.3d 744 (Pa.
             2014)] (concluding that a challenge to the duration of
             SORNA's registration requirement in light of a plea
             agreement was “properly reviewed as a petition for habeas
             corpus” (emphasis in original)). When determining whether
             a plea agreement has been breached, sentencing courts
             “look to what the parties to this plea agreement reasonably
             understood to be the terms of the agreement” based on the
             “totality of the surrounding circumstances.” Commonwealth
             v. Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (internal
             quotations omitted). See also Commonwealth v. Nase, 104
             A.3d 528, 534 (Pa. Super. 2014) (interpreting a plea
             agreement through use of contract principles and concluding
             that the appellant's “registration consequences were
             unequivocally part of the plea negotiations and
             arrangement”).         Such disputes should name the
             Commonwealth as the defendant as it is the Commonwealth,
             acting through the appropriate prosecutor, not the PSP, who
             is a party to the plea agreement.
Id. at 159-60 (emphasis added and footnote omitted). The court further noted that the

petitioner could “assert his contract-related claims against the Commonwealth in the



                                    [J-30-2017] - 4
appropriate court of common pleas,” id. at 160, and it dismissed the appellant’s claims

without prejudice. Id. at 161.2

       The Commonwealth Court again addressed this issue in Malone v. Pennsylvania

State Police, 2017 WL 1533870 (Pa. Cmwlth. filed April 28, 2017). In Malone, the

petitioner filed a petition for review against PSP seeking a declaratory judgment that he

was exempt from SORNA’s lifetime registration requirement based on, inter alia, the

terms of his plea agreement with the Commonwealth. In sustaining PSP’s preliminary

objections to the petitioner’s breach of contract claims, the Commonwealth Court,

relying on Dougherty, explained that, “because the State Police was not a party to the

plea agreement, a breach of contract action against the State Police is inappropriate.

We sustain the State Police’s preliminary objection to this claim, which belongs in the

appropriate court of common pleas.” Malone, at *7.3


2  The Commonwealth Court’s conclusion in Dougherty that PSP’s role in SORNA’s
statutory scheme is essentially ministerial, as it is limited to the collection and
dissemination of information in the registry, and enforcement of the registration
requirement, is supported by the description of PSP’s duties contained in the statute
itself. See 42 Pa.C.S. § 9799.32.
3 While, in A.S. v. Pennsylvania State Police, 143 A.3d 896, 899 (Pa. 2016), this Court
affirmed the grant of mandamus relief against PSP, PSP’s proper-party status was not
challenged. In that case, A.S. pled guilty to one count of sexual abuse of children and
one count of unlawful contact, both of which were enumerated offenses for purposes of
sexual offender registration. The trial court informed A.S. that he was subject to a ten-
year period of registration under Megan’s Law II. After the expiration of the ten-year-
registration period, A.S. contacted PSP and requested they remove his name from the
registry. PSP refused his request, claiming that his guilty plea to the two above-noted
offenses subjected him to lifetime registration because he had two or more convictions.
A.S. filed a “Petition for Review in the Nature of a Complaint in Mandamus” to compel
PSP to remove his name from the registry. The Commonwealth Court granted A.S.
relief and ordered PSP to change his designation on the registry. On appeal, this Court
affirmed the award of mandamus relief, as a majority of this Court concluded that
Megan’s Law II required an act, a conviction, and a subsequent act to trigger lifetime
registration for multiple offenses. As noted, however, PSP did not dispute that
mandamus relief was appropriate if this Court sustained A.S.’s reading of the statute.



                                     [J-30-2017] - 5
      Appellant’s claims regarding his federal plea agreement are contract-based

claims. As Appellant does not allege that PSP was a party to any plea agreement or

contract with Appellant, PSP is not a proper defendant in this case. Thus, in my view,

the Commonwealth Court properly sustained PSP’s preliminary objections in this

regard, but should have dismissed Appellant’s petition without prejudice to assert his

contract-related claims against the Commonwealth in the appropriate court of common

pleas, as it did in both Dougherty and Malone. Nevertheless, because I am aligned with

the majority that Appellant’s contract-related claims against the Commonwealth

ultimately are without merit, I agree with the majority’s affirmance of the Commonwealth

Court’s order.




                                    [J-30-2017] - 6
