J-A14002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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): No. 2550 August, 2016


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 24, 2017

       A.S.D. a/k/a A.S.D. appeals from the trial court’s order, dated October

17, 2016, that denied her petition to change her name.         We vacate and

remand for further proceedings.1

       A.S.D. is a transgender person, who has lived as a female for more

than six years. In her petition, she avers, in pertinent part, that:

       5. There are no outstanding judgments against Petitioner.

       6. On August 25, 2009, Petitioner was convicted of a third
       degree felony, Access Device Issued to Another Who Did Not
       Authorize Use. Pursuant to 54 [Pa.C.S.] § 702(c)(1), more than
       two years have elapsed from the completion of Petitioner’s
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1 In its Pa.R.A.P. 1925(a) opinion, the trial court indicated that A.S.D.’s
notice of appeal was untimely filed. We disagree, noting that Pa.R.A.P.
108(2)(b) provides that “[t]he date of entry of an order in a matter subject
to the Pennsylvania Rules of Civil Procedure shall be the day on which the
clerk makes the notation in the docket that notice of entry of the order has
been given as required by Pa.R.Civ.P. 236(b).” A review of the lower court’s
docket in this matter shows that notice of the entry of the trial court’s order
was sent on October 23, 2016, and that the appeal was filed on November
22, 2016. Therefore, we conclude that A.S.D.’s appeal was timely.
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     sentence, and she is not subject to probation or parole
     jurisdiction. Petitioner submits her fingerprints to be forwarded
     to the Pennsylvania State Police in compliance with 54 [Pa.C.S.]
     § 702(b)(1). …

     7. Petitioner requests that her name be changed from [A.S.D.]
     to [A.S.D.] for the following reasons:

           a. Petitioner has been using the name [A.S.D.]
           informally since 2009 and now wishes to legally
           change names,

           b. Petitioner’s appearance now is consistent with that
           of a female and Petitioner has been living as a
           female,

           c. Continuing to present official identification with a
           male name creates confusing and difficult situations
           for Petitioner on a regular basis since Petitioner’s
           appearance is now female and Petitioner has
           informally used a female name,

           d. Petitioner believes this name change will lessen
           social stigma against Petitioner and that it will
           protect Petitioner from potential harassment and
           even violence.

A.S.D.’s Petition for Change of Name, 8/19/16, at 1-2 (unnumbered).

     In her petition, A.S.D. also requested a waiver of publication and a

sealing of the record. The court scheduled a hearing on the waiver issue;

however, it appears that no hearing was held and no ruling was ever

forthcoming on the waiver/sealing of the record request.        Moreover, no

objections to A.S.D.’s petition were filed and, most importantly, no hearing

was held in regard to the petition itself.   Subsequently, the court’s order

denying A.S.D.’s petition was issued.     Although the court recognized that

A.S.D. had satisfied the requirements of 54 Pa.C.S. § 702(c)(1), it indicated

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that the denial was due to the serious circumstances of A.S.D.’s criminal

record.   See Trial Court Opinion, 1/27/17, at 3.     The order also provided

that A.S.D. could refile for a name change in twelve months.

       As noted previously in footnote 1, A.S.D. filed this timely appeal, 2 and

now raises the following issues for our review:

       1. Did the trial court abuse its discretion by denying [A.S.D.’s]
       petition for change of name without sufficient evidence, where
       the evidence in the record shows that [A.S.D.] met all of the
       statutory requirements for a change of name and that [A.S.D.],
       a transgender woman, was seeking to change her name to one
       consistent with her female identity and appearance rather than
       to avoid financial obligations or for any other improper purpose?

       2. Did the trial court abuse its discretion by denying [A.S.D.’s]
       petition and by mandating an additional twelve-month waiting
       period upon [A.S.D.] not required by statute, where [A.S.D.] had
       satisfied all statutory requirements and, further, was not
       restricted by statute from changing her name because she filed
       her petition more than two years after the completion of her
       criminal sentence, as provided for in 54 Pa.C.S. § 702(c)(1)(i)?

       3. Did the trial court abuse its discretion by failing to exercise
       that discretion in a manner comporting with good sense,
       common decency and fairness to all concerned by denying
       [A.S.D.’s] petition for a change of name when granting it would
       enable her to obtain legal identification documents consistent
       with her appearance and long-held identity, thereby reducing
       social stigma and risks to her safety of harassment, threats of
       violence, and discrimination?

A.S.D.’s brief at 3-4.

       To begin, we set forth the standards that guide our review of this case.

____________________________________________


2 No Pa.R.A.P. 1925(b) statement of errors complained of on appeal was
requested by the trial court, nor was such a statement filed by A.S.D.



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     Our Supreme Court has instructed that the established standard
     of review for cases involving petitions for change of name is
     whether or not there was an abuse of discretion.        In Re
     Zachary Thomas Andrew Grimes, 530 Pa. 388, 390 n.1, 609
     A.2d 158, 159 n.1 (1992) (citing Petition of Falcucci, 355 Pa.
     [588,] 591, 50 A.2d [200,] 202 [(1947)]). That Court has also
     provided us with an understanding of what constitutes an abuse
     of discretion, as follows:

           An abuse of discretion exists when the trial court has
           rendered     a    judgment       that   is   manifestly
           unreasonable, arbitrary, or capricious, has failed to
           apply the law, or was motivated by partiality,
           prejudice, bias, or ill will. A finding by an appellate
           court that it would have reached a different result
           than the trial court does not constitute a finding of
           an abuse of discretion. Where the record adequately
           supports the trial court’s reasons and factual basis,
           the court did not abuse its discretion.

     Harman v. Borah, 562 Pa. 455, 469, 756 A.2d 1116, 1123
     (2000) (citing Coker v. S.M. Flickinger Co., Inc. 533 Pa. 441,
     447, 625 A.2d 1181, 1184-85 (1993) and Morrison v.
     Commonwealth, Dept. of Public Welfare, 538 Pa. 122, 133,
     646 A.2d 565, 571 (1994)). On matters involving petitions for a
     change of name, the Supreme Court has often cited the guiding
     principle first enunciated in Falcucci, where it declared:

           Whenever a court has discretion in any matter (as it
           has in the matter of a change of name) it will
           exercise that discretion in such a way as to comport
           with good sense, common decency, and fairness to
           all concerned and to the public.

     Petition of Falcucci, 355 Pa. at 592, 50 A.2d at 202, (cited and
     restated in In the Matter of Robert Henry McIntyre (In Re
     McIntyre), 552 Pa. 324, 328, 715 A.2d 400, 402 (1998);
     Grimes, 530 Pa. at 392, 609 A.2d at 160).

In re Miller, 824 A.2d 1207, 1210 (Pa. Super. 2003).        Additionally, “our

scope of review is limited to the question of whether the evidence is

sufficient to support the decision reached by the hearing court.” Id.

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      As noted above, the trial court denied A.S.D.’s petition under section

702(c) “Convicted felons,” which provides:

      (1) The court may order a change of name for a person
      convicted of a felony, subject to 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.

      (2) The court may not order a change of name for a person
      convicted of murder, voluntary manslaughter, rape, criminal
      conspiracy or criminal solicitation to commit any of the offenses
      listed above or an equivalent crime under the laws of this
      Commonwealth in effect at the time of the commission of that
      offense or an equivalent crime in another jurisdiction.

54 Pa.C.S. § 702(c)(1)-(2).

      Our review of the record in this case reveals that A.S.D.’s petition

asserts that she has complied with the requirements listed in section 702(c),

and the trial court acknowledges this fact. However, since no hearing was

held we are compelled to vacate the order appealed from pursuant to the

dictates of In re Harris, 707 A.2d 225 (Pa. Super. 1997).         The Harris

Court, as in the instant case, was considering the trial court’s denial of a

name change petition filed by a transgender person. Specially, this Court’s

opinion directed that:

      Preliminarily, we note that our Supreme Court long ago
      articulated the general standard to be applied to petitions
      requesting name changes.      After determining that the
      petitioner has complied with the necessary statutory

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       prerequisites, the court must hold a hearing after which
       the court may, at its discretion, grant or deny the petition.
       In making its determination, the court must act in such a way as
       to “comport with good sense, common decency and fairness to
       all concerned and to the public.” Petition of Falcucci, 355 Pa.
       [at] 592, 50 A.2d [at] 202 [].

Id. at 227 (emphasis added).

       Because no hearing was held, we must vacate the order denying

A.S.D.’s petition and remand the matter for proceedings as directed by the

Harris case.3

       Order vacated.       Case remanded for proceeding consistent with this

memorandum. Jurisdiction relinquished.

       Judge Shogan joins this memorandum.

       Judge Bowes files a concurring memorandum in which President Judge

Emeritus Bender and Judge Shogan join.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017



____________________________________________


3 We also note that by the time this decision is handed down, almost one
year has elapsed since the original denial was issued.



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