The opinion of the court was delivered by: President Judge Pellegrini
Argued: September 12, 2012
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION BY PRESIDENT JUDGE PELLEGRINI
The Pennsylvania Department of Education (Department) appeals the order of the Court of Common Pleas of Allegheny County (trial court) permanently enjoining the Allegheny Intermediate Unit (AIU) from terminating Arthur Johnson's (Johnson) employment pursuant to the provisions of Section 111(e)(1) of the Public School Code of 1949 (School Code).*fn1 We affirm.
On July 21, 1983, Johnson was convicted of felony voluntary manslaughter under Section 2503 of the Crimes Code, 18 Pa. C.S. §2503. 24 P.S. §1-111(e) provided that a conviction for one of its enumerated offenses within the preceding five years, including all homicide offenses in Chapter 25 of the Crimes Code, precluded an applicant's employment by a school in the Commonwealth. Johnson was released from probation after completing a five-year term of imprisonment and a five-year probationary term. Johnson disclosed his criminal history to the Allegheny Intermediate Unit (AIU) and because his voluntary manslaughter conviction was outside the five-year timeframe, AIU was able to hire him as a van driver. In 2004, following training, AIU placed Johnson in a "Fatherhood Facilitator" position with the Fathers Alliance Program through which he counsels young fathers about child development and their role in child development. Johnson has performed his job duties in an exemplary fashion since that time.
The five-year impediment to school employment for those convicted of felony homicide was converted to a lifetime ban by Section 1 of Act 24 of 2011 (Act 24)*fn2 which amended 24 P.S. §1-111(e) and which also added new offenses to the list of disqualifying convictions.*fn3 To implement the Act, the Department also issued a Basic Education Circular (BEC) to provide school administrators with guidance concerning the duties imposed on them under Act 24 which provided that the Act 24 amendments prohibit the continued employment of any current employee who has a conviction for a 24 P.S. §1-111(e) reportable offense. The Department has also informed school administrators that it will move to sanction administrators who fail to act as required by 24 P.S. §1-111(e). As required by 24 P.S. §1-111(j)(1), the Department developed a Form PDE-6004 to be used by current and prospective employees to report arrests or convictions for 24 P.S. §1-111(e) offenses. Johnson reported his conviction.
As a result, on January 4, 2012, AIU sent Johnson notice of its intention to suspend his employment under the 24 P.S. §1-111(e) lifetime ban on school employment for anyone convicted of felony homicide. Following a pre-termination hearing, Johnson was suspended without pay based on his pre-employment disqualifying conviction. AIU then provided Johnson with a statement of charges that stated his employment was being terminated because of the lifetime ban on school employment imposed by 24 P.S. §1-111(e) if a person has been convicted of one of the disqualifying offenses.
Before the formal hearing could be held on the statement of charges, Johnson filed a complaint in the trial court seeking declaratory and injunctive relief to enjoin AIU from terminating his employment under 24 P.S. §1-111(e), seeking a declaration*fn4 that his termination:
violates his due process rights as guaranteed by Article 1, Section 1 of the Pennsylvania Constitution*fn5 because it is not rationally related to any interest sought to be protected because it is based on a remote conviction and it is unrelated to his ability to perform the duties of his position.
violates his due process rights under the Pennsylvania Constitution because it retroactively removes his right to continued employment based on acts predating the amendments and retroactively making him unemployable when he was legally employable by AIU prior to the amendments.
violates the Ex Post Facto Clause of Article 1, Section 17 of the
Pennsylvania Constitution*fn6 because it is
penal in nature and increases the punishment for his past crime by
preventing his current or future school employment.
The Department filed a motion to intervene as an indispensable party. By order dated April 12, 2012, the trial court granted Johnson a permanent injunction finding that it violated the Ex Post Facto Clause of the Pennsylvania Constitution and granted the Department's motion to intervene. On April 23, 2012, the Department filed the instant appeal of the trial court's order.*fn7
In this appeal,*fn8 the Department claims that the trial court erred in granting the permanent injunction because Johnson's termination under 24 P.S. §1-111(e)(1) does not violate the Ex Post Facto Clause of the Pennsylvania Constitution. The Department also argues that the trial court's order cannot be affirmed on the alternate bases claimed by Johnson, i.e., that his termination under 24 P.S. §1-111(e)(1) violates substantive due process under the Pennsylvania Constitution.
As a preliminary matter, it must be noted that a statute that has been duly enacted by the General Assembly is presumed to be valid and it will not be declared to be unconstitutional unless it clearly, palpably and plainly violates the Constitution. West Mifflin Area School District v. Zahorchak, 607 Pa. 153, 163, 4 A.3d 1042, 1048 (2010). Further, a party who questions the constitutionality of a statute bears a heavy burden of persuasion to overcome this presumption. Barrel of Monkeys, LLC v. Allegheny County, 39 A.3d 559, 563 (Pa. Cmwlth. 2012).
There are two kinds of constitutional challenges: they either attack a statute on its face or as it is applied in a particular case. Lehman v. Pennsylvania State Police, 576 Pa. 365, 380, 839 A.2d 265, 275 (2003). As the Pennsylvania Superior Court has explained:
A facial attack tests a law's constitutionality based on its text alone and does not consider the facts or circumstances of a particular case. An as-applied attack, in contrast, does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right..
Commonwealth v. Brown, 26 A.3d 485, 493 (Pa. Super. 2011) (citation omitted). In this case, Johnson's complaint only asks that we declare 24 P.S. §1-111(e)(1) unconstitutional as applied to his employment with AIU.
The Department claims that the trial court erred in granting the permanent injunction because Johnson's termination under 24 P.S. §1-111(e)(1) does not violate the Ex Post Facto Clause of the Pennsylvania Constitution. An ex post facto law is one that imposes punishment for past acts. Galena v. Department of State Professional and Occupational Affairs, 551 A.2d 676, 679 (Pa. Cmwlth. 1988). The Ex Post Facto Clause of the Pennsylvania Constitution is a restriction on the actions of the General Assembly and is an attempt to preserve an individual's right to fair warning that his conduct will result in criminal penalties. Id. A statute may violate the Ex Post Facto Clause by, inter alia, changing the punishment for a crime and making it greater than when the criminal act was committed. Lehman, 576 Pa. at 371, 839 A.2d at 269.
A statute can violate the Ex Post Facto Clause in two ways. Lehman, 576 Pa. at 373, 839 A.2d at 271. One way is when the General Assembly's intent was punitive; if so, the statute violates the Ex Post Facto Clause. Id. However, if the General Assembly's intent is found to be civil and non-punitive, a statute can still violate the Ex Post Facto Clause if it is so punitive in either its purpose or its effect so as to negate the General Assembly's intent that it be civil. Id. at 374, 839 A.2d at 271.
In Galena, we addressed whether the purpose of the Medical Practice Act of 1985 (Medical Act),*fn9 effective January 1, 1986, relating to the automatic suspension of a physician's medical license based upon a conviction for a felony under the laws of another jurisdiction, was punitive. The prior repealed version of the Medical Act did not ...