Nixon v. Com.

839 A.2d 277

576 Pa. 385

Earl NIXON, Reginald Curry, Kelly Williams, Marie Martin, Theodore Sharp, and Resources for Human Development, Inc., Appellees v. The COMMONWEALTH of Pennsylvania, Department of Public Welfare of the Commonwealth of Pennsylvania, Department of Aging of the Commonwealth of Pennsylvania, and Department of Health of the Commonwealth of Pennsylvania, Appellants.

Supreme Court of Pennsylvania.

Argued April 8, 2003.

Decided December 30, 2003.

John G. Knorr, D. Michael Fisher, Calvin Royer Koons, Harrisburg, for Department of Public Welfare, et al.

Sharon M. Dietrich, David Jon Wolfsohn, Philadelphia, Janet Fran Ginzberg, Peter Houghton LeVan, Philadelphia, Seth F. Kreimer, for Earl Nixon, et al.

Harold I. Goodman, Philadelphia, for Pennsylvania Alliance for Retired Americans, et al.

Christine S. Dutton, for PA Ass'n of County Affiliated Homes, et al.

Before CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION OF THE COURT

Justice NIGRO.

This case involves an appeal from the December 11, 2001 opinion and order of the Commonwealth Court declaring the criminal records chapter, 35 P.S. §§ 10225.501—10225.508,¹ of the Older Adults Protective Services Act (the "OAPSA"), 35 P.S. §§ 10225.101—10225.5102,² unconstitutional as applied to Appellees Earl Nixon, Reginald Curry, Kelly Williams, Marie Martin, and Theodore Sharp (the "Employees"). We affirm the Commonwealth Court's decision, although for different reasons.

In November 1987, the General Assembly enacted the OAPSA, declaring as follows:

It is declared the policy of the Commonwealth of Pennsylvania that older adults who lack the capacity to protect themselves and are at imminent risk of abuse, neglect, exploitation or abandonment shall have access to and be provided with services necessary to protect their health, safety and welfare. It is not the purpose of this act to place restrictions upon the personal liberty of incapacitated older adults, but this act should be liberally construed to assure the availability of protective services to all older adults in need of them. Such services shall safeguard the rights of incapacitated older adults while protecting them from abuse, neglect, exploitation and abandonment. It is the intent of the General Assembly to provide for the detection and reduction, correction or elimination of abuse, neglect, exploitation and abandonment, and to establish a program of protective services for older adults in need of them.

35 P.S. § 10225.102. In furtherance of this stated objective, the OAPSA establishes a network of agencies in areas throughout the Commonwealth to provide protective services for older adults,³ as well as patients in any of the facilities covered by the OAPSA ("covered facilities").⁴ See 35 P.S. §§ 10225.103, 10225.301, 10225.304. The OAPSA further provides that any person may report to these area agencies that an older adult is in need of services, and the agency must promptly investigate the matter and provide protective services to the older adult if necessary.⁵ 35 P.S. §§ 10225.302— 10225.304.

In December 1996, the General Assembly amended the OAPSA by adding a criminal records chapter. See 35 P.S. §§ 10225.501—10225.508. This chapter required any applicant seeking employment in a covered facility as well as any employee who had worked at a covered facility for less than two years to submit a criminal records report to the facility. See 35 P.S. § 10225.502(a); see also 35 P.S. § 10225.508 (Pa.Stat.1996—1997). The chapter also prohibited covered facilities from hiring applicants or retaining employees whose reports revealed that they had been convicted of certain violent or sexual crimes, including first and second degree murder, rape, various degrees of sexual assault and indecent assault, and sexual abuse of children. See 35 P.S. § 10225.503 (Pa.Stat.1996—1997). In addition, the chapter prohibited the hiring or retention of persons whose records revealed that they had been convicted of other enumerated crimes, including third degree murder, aggravated assault, kidnapping, arson, burglary, robbery, forgery, felony drug crimes, and endangering the welfare of children, within ten years of the time that the background check was conducted. See id. The chapter, however, was not to take effect until July 1, 1998.

Approximately one year before the criminal records chapter was to take effect, the General Assembly amended certain provisions of the chapter. See Act of June 9, 1997, P.L. 160, No. 13. Among other things, the amendments changed section 508 to require only new applicants and those employees who had been at a facility for less than a year before the effective date of the Act to submit criminal record reports.⁶ See 35 P.S. § 10225.508(1). In addition, the amendments removed the ten-year limitation period on the second category of offenses listed in section 503(a) of the chapter, so as to permanently prohibit a covered facility from hiring or retaining those persons whose criminal records established that they had been convicted of any one of the enumerated crimes. See 35 P.S. § 10225.503(a). Specifically, section 503, as amended, provides:

a) General rule.—In no case shall a facility hire an applicant or retain an employee required to submit [criminal records reports] if the applicant's or employee's criminal history record information indicates the applicant or employee has been convicted of any of the following offenses:

(1) An offense designated as a felony under ... The Controlled Substance, Drug, Device and Cosmetic Act.

(2) An offense under one or more of the following provisions of 18 Pa.C.S. (relating to crimes and offenses):

Chapter 25 (relating to criminal homicide).

Section 2702 (relating to aggravated assault).

Section 2901 (relating to kidnapping).

Section 2902 (relating to unlawful restraint).

Section 3121 (relating to rape).

Section 3122.1 (relating to statutory sexual assault).

Section 3123 (relating to involuntary deviate sexual intercourse).

Section 3124.1 (relating to sexual assault).

Section 3125 (relating to aggravated indecent assault).

Section 3127 (relating to indecent exposure).

Section 3301 (relating to arson and related offenses).

Section 3502 (relating to burglary).

Section 3701 (relating to robbery).

A felony offense under Chapter 39 (relating to theft and related offenses) or two or more misdemeanors under Chapter 39.

Section 4101 (relating to forgery).

Section 4114 (relating to securing execution of documents by deception).

Section 4302 (relating to incest).

Section 4303 (relating to concealing death of child).

Section 4304 (relating to endangering welfare of children).

Section 4305 (relating to dealing in infant children).

Section 4952 (relating to intimidation of witnesses or victims).

Section 4953 (relating to retaliation against witness or victim).

A felony offense under section 5902(b) (relating to prostitution and related offenses).

Section 5903(c) or (d) (relating to obscene and other sexual materials and performances).

Section 6301 (relating to corruption of minors).

Section 6312 (relating to sexual abuse of children).

Id. The criminal records chapter, with these amendments, went into effect on July 1, 1998.

On August 8, 2000, the Employees and Appellee Resources for Human Development, Inc. ("RHD"), a nonprofit corporation that administers several residential service programs that are considered covered facilities under the OAPSA, filed a petition for review in the nature of a complaint in equity in the Commonwealth Court. The Employees and RHD argued in the petition that the criminal records chapter: (1) violated the Employees' right to substantive due process guaranteed under Article I, section 1 of the Pennsylvania Constitution by unreasonably and arbitrarily infringing on their right to pursue a lawful occupation; (2) violated the Employees' right to procedural due process guaranteed under the Pennsylvania Constitution by irrebuttably presuming them to be disqualified for employment in the covered facilities; and (3) violated RHD's right to substantive due process by unreasonably interfering with its right to employ qualified employees. The Employees and RHD requested as a remedy a declaration that the criminal records chapter was unconstitutional as applied to the Employees. They also sought a preliminary and permanent injunction to enjoin Appellants, the Commonwealth of Pennsylvania, the Department of Aging, the Department of Public Welfare, and the Department of Health (the "Commonwealth Parties"),⁷ from enforcing the criminal records chapter against the Employees, or, alternatively, from enforcing it against RHD or any other covered facility that wanted to employ the Employees.⁸

The Employees and RHD filed multiple declarations in support of their petition for review and separate petition for a preliminary injunction. Each of the Employees filed declarations averring to their work history in the health care field, their criminal records, and their inability to continue to work in covered facilities due to the criminal records chapter.⁹ The associate director of RHD also submitted a declaration averring that because of the criminal records chapter, RHD had to lay off twenty-five employees, including two of the Employees.¹⁰See Memo. of Law in Support of Plaintiffs' Petition for Preliminary Injunction, Exh. J, Declaration of Dennis Roberts, at 2-3.

On August 31, 2000, Judge Dan Pellegrini of the Commonwealth Court held a hearing on the petition for a preliminary injunction. During the hearing, the Commonwealth Parties stipulated to the factual averments in the petition for review and petition for a preliminary injunction, including the relevant background of each Employee and RHD. See N.T., 8/31/2000, at 3, 6. They also agreed that the only issue in dispute was the constitutionality of the criminal records chapter. See id. After hearing arguments, Judge Pellegrini denied the request for a...