J-A25023-16

                                   2016 PA Super 275



COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

JOSEPH W. PILCHESKY,

                            Appellee                   No. 195 MDA 2016


              Appeal from the Order Entered November 23, 2015
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001075-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

OPINION BY SHOGAN, J.:                            FILED DECEMBER 06, 2016

       The Commonwealth appeals from the order entered on November 23,

2015, granting the petition for writ of habeas corpus filed by Joseph W.

Pilchesky (“Pilchesky”). After careful consideration, we reverse and remand

for further proceedings.

       The Commonwealth charged Pilchesky with four counts of the

unauthorized practice of law in violation of 42 Pa.C.S. § 2524(a) on

February 27, 2013. Pilchesky proceeded pro se and waived his preliminary

hearing. Following multiple pro se filings, counsel was appointed.

       On August 20, 2015, Pilchesky filed an omnibus pretrial motion, which

included a petition for writ of habeas corpus. Omnibus Pretrial Motion Nunc
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Pro Tunc, 8/20/15, at 4-5.            In the petition for writ of habeas corpus,

Pilchesky argued that “[a] writ of habeas corpus should issue in this case

and the charges for unlawful practice of law [should be] dismissed since a
                                                 1
prima facie case cannot be established.”             Id. at 4. Specifically, Pilchesky

asserted the following:

       [I]n order for a prima facie case for unauthorized practice of law
       to be made under [42 Pa.C.S.] § 2524, the Commonwealth must
       establish that [Pilchesky] practiced law in such a manner as to
       convey the impression that he is a practitioner of the law of any
       jurisdiction, without being an attorney at law.

Id. at 5.

       The trial court granted Pilchesky’s omnibus pretrial motion in part and

scheduled a hearing on the petition for writ of habeas corpus for

September 23, 2015.         Order, 8/27/15, at 1.       At the hearing, both parties

presented argument regarding the elements necessary to establish a prima

facie case of the unauthorized practice of law.             N.T., 9/23/15, at 6-22.

During the hearing, the trial court concluded that a person charged with the

unauthorized practice of law must do so in a manner so as to convey the

impression that he is a practitioner of the law when, in fact, he is not, in

order for the individual to be convicted. Id. at 21. Following the trial court’s

determination, the Commonwealth requested certification for purposes of an
____________________________________________


1
  “A pre-trial habeas corpus motion is the proper means for testing whether
the Commonwealth has sufficient evidence to establish a prima facie case.”
Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016) (en
banc).



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immediate appeal, and Pilchesky did not object. Id. at 22. Accordingly, the

trial court continued the habeas hearing pending the appeal to this Court.

Id.   Subsequently, the trial court issued an order on November 23, 2015,

that provided as follows:

           1.     The Petition of [Pilchesky] for a Writ of Habeas
      Corpus is hereby GRANTED;

            2.     The Commonwealth shall be required to prove at trial
      beyond a reasonable doubt that the actions of [Pilchesky] were
      committed in such a manner as to convey the impression that he
      is a practitioner of the law of any jurisdiction, without being an
      attorney at law or a corporation complying with 15 Pa.C.S. Ch.
      29 (relating to professional corporations);

            3.    We are of the opinion that this Order involves a
      controlling question of law as to which there is substantial
      ground for difference of opinion and, further, that an immediate
      appeal to the Superior Court of Pennsylvania from this Order
      may materially advance the ultimate termination of this matter.

Order, 11/23/15, at 1-2.

      On December 23, 2015, the Commonwealth filed a petition for

permission to appeal in this Court.        Petition for Permission to Appeal,

12/23/15.     By order filed February 2, 2016, this Court granted the

Commonwealth’s petition for permission to appeal.      Order, 83 MDM 2015,

2/2/16.

      The Commonwealth presents the following issue for our review:

      Did the trial [court] err in holding that the Commonwealth was
      required to prove at trial that Pilchesky not only practiced law
      within the Commonwealth without being licensed but also that
      he did so in such a manner as to convey the impression that he
      is a practitioner of the law of any jurisdiction when, based on the
      plain language of the statute and the rules of statutory

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       construction, the latter is not an element of the offense as
       charged[?]

Commonwealth’s Brief at 4 (full capitalization omitted).

       Specifically, the Commonwealth asserts that based on the language of

the unauthorized practice of law statute and the rules of statutory

construction, the Commonwealth need prove only that Pilchesky engaged in

the practice of law within the Commonwealth without being licensed to do

so. Commonwealth’s Brief at 12-20. The Commonwealth maintains that the

trial court erred when it ruled that in order to convict Pilchesky of the

unauthorized practice of law, the Commonwealth must additionally prove

that Pilchesky practiced law in such a manner as to convey the impression

that he is a practitioner of law. Id. at 12.

       Conversely, Pilchesky maintains that in order to find that he engaged

in the unauthorized practice of law, the Commonwealth must establish that

he practiced law without a license and did so in such a manner as to convey

the impression that he was a practitioner of the law. Pilchesky’s Brief at 3.

Accordingly, Pilchesky asserts that the trial court’s holding is correct. Id.

       When reviewing a claim that raises an issue of statutory construction,

our standard of review is plenary.2 Commonwealth v. Wilson, 111 A.3d


____________________________________________


2
   We note that in evaluating a trial court’s decision regarding a pretrial
habeas corpus motion, our standard of review is also plenary. Dantzler,
135 A.3d at 1112.



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747, 751 (Pa. Super. 2015).         We recognize the following principles with

regard to statutory construction:

            Our task is guided by the sound and settled principles set
     forth in the Statutory Construction Act, including the primary
     maxim that the object of statutory construction is to ascertain
     and effectuate legislative intent. 1 Pa.C.S. § 1921(a). In
     pursuing that end, we are mindful that “[w]hen the words of a
     statute are clear and free from all ambiguity, the letter of it is
     not to be disregarded under the pretext of pursuing its spirit.” 1
     Pa.C.S. § 1921(b). Indeed, “[a]s a general rule, the best
     indication of legislative intent is the plain language of a statute.”
     In reading the plain language, “[w]ords and phrases shall be
     construed according to rules of grammar and according to their
     common and approved usage,” while any words or phrases that
     have acquired a “peculiar and appropriate meaning” must be
     construed according to that meaning.              1 Pa.C.S.1903(a).
     However, when interpreting non-explicit statutory text,
     legislative intent may be gleaned from a variety of factors,
     including, inter alia: the occasion and necessity for the statute;
     the mischief to be remedied; the object to be attained; the
     consequences of a particular interpretation; and the
     contemporaneous legislative history.          1 Pa.C.S. § 1921(c).
     Moreover, while statutes generally should be construed liberally,
     penal statutes are always to be construed strictly, 1 Pa.C.S. §
     1928(b)(1), and any ambiguity in a penal statute should be
     interpreted in favor of the defendant.

           Notwithstanding the primacy of the plain meaning doctrine
     as best representative of legislative intent, the rules of
     construction offer several important qualifying precepts. For
     instance, the Statutory Construction Act also states that, in
     ascertaining legislative intent, courts may apply, inter alia, the
     following presumptions: that the legislature does not intend a
     result that is absurd, impossible of execution, or unreasonable;
     and that the legislature intends the entire statute to be effective
     and certain. 1 Pa.C.S. § 1922(1),(2). Most importantly, the
     General Assembly has made clear that the rules of construction
     are not to be applied where they would result in a construction
     inconsistent with the manifest intent of the General Assembly. 1
     Pa.C.S. § 1901.




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Wilson, 111 A.3d at 751 (quoting Commonwealth v. Shiffler, 879 A.2d

185, 189–190 (Pa. 2005)). The Statutory Construction Act requires that a

reviewing court give full meaning and effect to all words of a statute.

Commonwealth v. Schley, 136 A.3d 511, 516 (Pa. Super. 2016) (citing 1

Pa.C.S. § 1921(a)).

      The statute defining the unauthorized practice of law provides, in

relevant part, as follows:

      (a) General rule.--Except as provided in subsection (b)
      [related to practice by associations], any person, including, but
      not limited to, a paralegal or legal assistant, who within this
      Commonwealth shall practice law, or who shall hold himself out
      to the public as being entitled to practice law, or use or advertise
      the title of lawyer, attorney at law, attorney and counselor at
      law, counselor, or the equivalent in any language, in such a
      manner as to convey the impression that he is a practitioner of
      the law of any jurisdiction, without being an attorney at law or a
      corporation complying with 15 Pa.C.S. Ch. 29 (relating to
      professional corporations), commits a misdemeanor of the third
      degree upon a first violation. A second or subsequent violation
      of this subsection constitutes a misdemeanor of the first degree.

42 Pa.C.S. § 2524(a).

      Based on the plain language of the statute, we agree with the

interpretation advanced by the Commonwealth. The language in this section

is disjunctive, as reflected by the drafter’s use of “or” throughout. “We are

bound to give ‘or’ its normal disjunctive meaning unless its ordinary meaning

would ‘produce a result that is absurd or impossible of execution or highly

unreasonable....’”    In re Fiedler, 132 A.3d 1010, 1022 (Pa. Super. 2016)

(quoting Commonwealth ex rel. Specter v. Vignola, 285 A.2d 869, 871


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(Pa. 1971). The clause “without being an attorney at law or a corporation

complying with 15 Pa.C.S. Ch. 29 . . . commits a misdemeanor of the third

degree upon a first violation,” is read in conjunction with each of the

classifications defining the commission of the unauthorized practice of law.

As such, we interpret this provision to set forth three different ways the

statute can be violated by an individual who is not an attorney at law or a

corporation complying with 15 Pa.C.S. Ch. 29. The first is the practice of law

by someone not licensed, as indicated by the language “any person . . . who

within this Commonwealth shall practice law…without being an attorney at

law.”   42 Pa.C.S. § 2524(a).    The second is by someone “who shall hold

himself out to the public as being entitled to practice law . . . without being

an attorney at law.” Id. The third is by one who “use[s] or advertise[s] the

title of lawyer, attorney at law, attorney and counselor at law, counselor, or

the equivalent in any language, in such a manner as to convey the

impression that he is a practitioner of the law of any jurisdiction, without

being an attorney at law.”      Id.   Thus, the subject language, “in such a

manner as to convey the impression that he is a practitioner of law” that

Pilchesky asserts is an additional requirement to the crime of unauthorized

practice of law when one practices law without being an attorney, is in fact

the basis for the third outlined violation.   It is not an additional element

necessary to be proven in order for there to be a violation of the statute in

the first two proscribed scenarios.


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      Additionally, if the subject language, “in such a manner as to convey

the impression that he is a practitioner of law” were to be applied to each of

the classifications, such application to the second would be redundant. As

written, the second scenario already includes as part of the violation the

requirement that the individual hold himself out to the public as a

practitioner.    We cannot agree that such duplication of language was

intended by the drafters of this provision. See Commonwealth, Office of

Governor v. Donahue, 98 A.3d 1223, 1238 (Pa. 2014) (stating that under

the statutory construction act, a statute “must ‘be construed, if possible, to

give effect to all its provisions,’ so that no provision is reduced to mere

surplusage.”).    Additionally, it is presumed that the legislature does not

intend an absurd or unreasonable result.     Donahue, 98 A.3d at 1238; 1

Pa.C.S. § 1922(1).

      Furthermore, we consider the legislative intent behind this statutory

provision. As our Supreme Court has explained:

             The Pennsylvania Constitution vests with our Court the
      exclusive authority to regulate the practice of law, which
      includes the power to define what constitutes the practice of law.
      Pa. Const. Art. V, § 10(c); Dauphin County Bar Association v.
      Mazzacaro, 465 Pa. 545, 351 A.2d 229, 233 (1976). What
      constitutes the practice of law, however, is not capable of a
      comprehensive definition. For this reason, our Court has not
      attempted to provide an all-encompassing statement of what
      activities comprise the practice of law. Office of Disciplinary
      Counsel v. Marcone, 579 Pa. 1, 855 A.2d 654, 660 (2004);
      Shortz et al. v. Farrell, 327 Pa. 81, 193 A. 20, 21 (1937).
      Thus, we have determined what constitutes the practice of law
      on a case-by-case basis.


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            While our Court has addressed the question of what
      constitutes the practice of law on an individualized basis, we
      have made clear that paramount to the inquiry is consideration
      of the public interest. Marcone, 855 A.2d at 658; Dauphin
      County, 351 A.2d at 233. Consideration of the public interest
      has two related aspects: protection of the public and prudent
      regulation so as not to overburden the public good.

            Regarding the protection of the public, then Justice, later
      Chief Justice Stern perhaps best summarized this aspect of the
      Court’s concern in Shortz, “While in order to acquire the
      education necessary to gain admission to the bar and thereby
      become eligible to practice law, one is obliged to ‘scorn delights,
      and live laborious days,’ the object of the legislation forbidding
      practice to laymen is not to secure to lawyers a monopoly,
      however deserved, but, by preventing the intrusion of inexpert
      and unlearned persons in the practice of law, to assure to the
      public adequate protection in the pursuit of justice, than which
      society knows no loftier aim.” Shortz, 193 A. at 24.

Harkness v. Unemployment Compensation Bd. of Review, 920 A.2d

162, 166-167 (Pa. 2007).

      Indeed, our Supreme Court has made clear that persons not licensed

are prohibited from practicing law in order to protect the public:

             A layman who seeks legal services often is not in a position
      to judge whether he will receive proper professional attention.
      The entrustment of a legal matter may well involve the
      confidences, the reputation, the property, the freedom, or even
      the life of the client. Proper protection of members of the
      public demands that no person be permitted to act in the
      confidential and demanding capacity of a lawyer unless he
      is subject to the regulations of the legal profession.

             Indeed, the bar itself actually arose out of a public demand
      for the exclusion of those who assume to practice law without
      adequate qualifications therefor. To practice law a person must
      demonstrate a reasonable mastery of legal skills and principles,
      be a person of high moral character and maintain a continuing
      allegiance to a strict code of professional conduct.           These
      stringent requirements are intended to protect and secure the

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      public’s interest in competent legal representation. It is to
      guard against the impairment of this interest that the
      practice of law by persons who are not authorized to do
      so is forbidden.

Dauphin County Bar Ass’n v. Mazzacaro, 351 A.2d 229, 232-233 (Pa.

1976) (internal citations and quotation marks omitted) (emphases added).

      Thus, it is apparent that the intent behind this statutory provision is

protection of the public.     Protection of the public is accomplished by

preventing those who are not attorneys from practicing law. Harkness, 920

A.2d at 167.    Accordingly, one who is not an attorney yet practices law

violates this provision. There is no additional requirement that the individual

do so “in such a manner as to convey the impression that he is a practitioner

of law” in order to be convicted under the statute.

      Consequently, we conclude that the trial court erred by holding that in

order for Pilchesky to be convicted of the unauthorized practice of law, the

Commonwealth is required to establish that Pilchesky practiced law and that

he did so “in such a manner as to convey the impression that he is a

practitioner of the law.”   Should the Commonwealth establish beyond a

reasonable doubt that Pilchesky practiced law and was not an attorney, such

evidence would be sufficient to convict Pilchesky of the unauthorized practice

of law under 42 Pa.C.S. § 2524(a). Thus, we are constrained to reverse the

trial court’s holding in this matter and remand for proceedings consistent

with this Opinion




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      Order reversed. Matter remanded for proceedings consistent with this

Opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2016




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