In re A.S.D – Pennsylvania
Superior Court – November 20, 2017
majority opinion
concurring opinion
Transgender person (male to
female) petitioned under 54 Pa. C.S. 702 for change of name, alleging
consistent use, avoidance of identification issues, and lessening of social
stigma. Applicant had been convicated of 3d degree felony more than two
(2) years prior to name change petition but was not on probation or parole and
thus satisfied all statutory conditions under sec. 702 (c)(1), as the trial
court recognized. However, the trial court denied the petition, without
holding a hearing, citing the criminal conviction, and provided that the
applicant could re-file in 12 months.
The majority reversed and remanded
for a hearing, citing In re Harris, 707 A.2d 225 (Pa. Super. 1997), which
mandated a hearing if a petitioner satisfied all statutory prerequisites, after
which it could grant or deny the petition.
The concurring judge felt tha
compliance with the “technical requirements” of the name-change statute “should
be the sole consideration...utilized by the trial court,” citing the concurring
opinion of Juge Popovich in In re Harris. The judge felt that the
petition should be granted “if, upon holding the hearing, the court find no
indication that the name change is being sought for fraudulent purposes.”
The concurring judge said:
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. . . . .
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.
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