Com. v. Markun, S.

J-S75040-16
2017 Pa. Super. 46
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SARAH KATHERINE MARKUN
Appellant No. 1009 EDA 2016
Appeal from the Judgment of Sentence March 1, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006444-2015
BEFORE: BOWES, MOULTON AND MUSMANNO, JJ.
DISSENTING OPINION BY BOWES, J.: FILED February 27, 2017
I respectfully dissent from the majority’s disposition of this matter.
The statute in question, 35 P.S. § 780-113.7, drug overdose response
immunity, was designed to encourage the reporting of drug overdoses in
light of the current epidemic of heroin-related deaths. It indicates that a
“person may not be charged and shall be immune from prosecution” for,
inter alia, possession of a controlled substance if the person establishes that
certain conditions are met. 35 P.S. § 780-113.7(a); 35 § 780-113.7(c).
The majority focuses on the aspect of this quotation that pertains to
immunity and concludes that Appellant waived application of 35 P.S. § 780-
113.7 since she failed to raise the immunity position during the trial
proceedings.
However, in my view, the first portion of the language in question
implicates subject matter jurisdiction since it prohibits a person from being
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charged at all. Notably, the statute states both that the person may not be
charged and that the person is immune from prosecution. The majority
focuses on the latter aspect of this provision but fails to analyze the import
of the prohibition against charges being filed in the first instance.
It is settled that “challenges to subject matter jurisdiction cannot be
waived.” Commonwealth v. Jones, 929 A.2d 205, 210 (Pa. 2007).
“Subject matter jurisdiction relates to the competency of a
court to hear and decide the type of controversy presented.
Jurisdiction is a matter of substantive law.” Midwest Financial
Acceptance Corp. v. Lopez, 78 A.3d 614, 627 (Pa.Super.
2013) (citation omitted). “By jurisdiction over the subject-matter
is meant the nature of the cause of action and of the relief
sought; and this is conferred by the sovereign authority which
organizes the court, and is to be sought for in the general nature
of its powers, or in authority specially conferred.” Mid–City
Bank & Trust Co. v. Myers, 343 Pa. 465, 469, 23 A.2d 420,
423 (1942) (citing Cooper v. Reynolds, 77 U.S. 308, 316, 19
L. Ed. 931, 932, 10 Wall. 308, 316 (1870)).
Sheard v. J.J. DeLuca Co., 92 A.3d 68, 75 (Pa.Super. 2014).
While it is true that “the courts of common pleas have statewide
jurisdiction in all cases arising under the Crimes Code,” Jones, supra at
210, the language in question affirmatively prohibits a charge from being
instituted. Thus, the language in question does not merely provide
immunity, it prevents the prosecuting authority from filing a criminal action.
I believe that the statement that a “person may not be charged” does
pertain to the court’s competency to hear the action because it renders the
filing of a charge void and leaves the trial court without the authority to
proceed to judgment.
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Our Supreme Court’s decision in LeFlar v. Gulf Creek Indus. Park
No. 2, 515 A.2d 875 (Pa. 1986), is instructive. In LeFlar, the Court
reversed our conclusion that the exclusivity clause of the Workmen’s
Compensation Act, was an affirmative defense that could be waived if not
timely raised. Our Supreme Court held “that the Workmen's Compensation
Act deprives the common pleas courts of jurisdiction of common law actions
in tort for negligence against employers and is not an affirmative defense
which may be waived if not timely plead. The lack of jurisdiction of the
subject matter may be raised at any time and may be raised by the court
sua sponte if necessary. Pa.R.C.P. 1032(2).” Id. at 879. Indeed, the Court
has held that an employer did not waive the immunity from a negligence
action provided by the Workmen's Compensation Act even though it was
raised after the plaintiff attempted to execute on a judgment. Socha v.
Metz, 123 A.2d 837 (Pa. 1956).
The exclusivity clause of the Workmen’s Compensation Act states that
the “liability of an employer under this act shall be exclusive and in place of
any and all other liability to such employes . . . .” 77 P.S. § 481(a). Our
Supreme Court construed this wording as preventing subject matter
jurisdiction from vesting in the court of common pleas. The language of §
481(a) is similar to that at issue herein. Just as a tort action may not be
brought by an employee against an employer for work-related injuries under
the exclusivity provision, a person cannot be charged under § 780-113.7
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once its factual prerequisites are proven. If the exclusivity provision relates
to subject matter jurisdiction, so must, in my view, § 780-113.7.
Further, our Supreme Court has held that immunity from suit is a
defense that cannot be waived. McShea v. City of Philadelphia, 995 A.2d
334 (Pa. 2010) (a political subdivision cannot waive its governmental
immunity from tort liability by contract); In re Upset Sale of Properties,
560 A.2d 1388 (Pa. 1989) (governmental immunity cannot be waived and
can be raised for first time on appeal). Given the clarity of the language of §
780-113.7, which prohibits the filing of criminal charges and confers
immunity upon a defendant from criminal action, its application should not
be characterized as a waivable affirmative defense. It deprives the criminal
courts of the ability to proceed with criminal charges and cloaks a criminal
defendant with immunity that cannot be waived.
The record clearly establishes the facts necessary for application of §
780-113.7. A person cannot be charged with possession of a controlled
substance and immunity from prosecution is conferred by this enactment if
the following facts are present. First, someone “reported, in good faith, a
drug overdose event,” to, among other persons, “a law enforcement officer
[or] the 911 system.” 35 P.S. § 780-113.7 (a)(2). Second, the person who
made the report did so based upon a reasonable belief that someone else
needed medical attention to avoid death or serious bodily injury due to a
drug overdose event. Id. Finally, the reporting person must have “provided
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his own name and location and cooperated with the law enforcement officer
[or] 911 system” and then “remained with the person needing immediate
medical attention until a law enforcement officer . . . or emergency services
personnel arrived.” Id.
A drug overdose event is defined in this statute. It is any “acute
medical condition,” which can include, but is not limited to, “severe physical
illness” or a coma when the condition is the “result of consumption” of a
controlled substance that causes an adverse reaction. 35 P.S. § 780-
113.7(f). “A patient's condition shall be deemed to be a drug overdose if a
prudent layperson, possessing an average knowledge of medicine and
health, would reasonably believe that the condition is in fact a drug overdose
and requires immediate medical attention.” Id.
Section 780-113.7 further states that anyone “experiencing drug
overdose events may not be charged and shall be immune from
prosecution” so long as the reporting person cannot be charged and is
entitled to immunity under § 780-113.7 (a)(2). 35 P.S. § 780-113.7(c)
(emphasis added). The police can bring charges if they learned of a
defendant’s possession of heroin through other means.
Herein, Appellant was convicted of possession of a controlled
substance when police found heroin in her handbag solely due to the
reporting of an overdose event. The trial transcript substantiates the
following. After finding Appellant unconscious in her room, housekeeping
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employees of a Motel 6 telephoned 911. Officer Robert Loder of the Tinicum
Police Department responded to the call and went to Appellant’s room,
where emergency medical personnel were already treating her.
Officer Loder reported that the housekeeping personnel remained just
outside Appellant’s room, and directed him inside. N.T. Trial, 3/1/16, at 6,
9. When Officer Loder overheard Appellant tell the medical providers that
she had become unconscious due to the consumption of heroin, he
recovered heroin from a bag in her room. Since the motel employees
discovered Appellant in an unconscious state, they prudently concluded that
she was suffering from an event requiring medical intervention, which could
have resulted in serious bodily injury or death. That event was, in fact,
caused by the consumption of heroin. The motel employees were immune
from having criminal charges filed against them under § 781-113.7.
Appellant concomitantly was entitled to application of 35 P.S. § 780-
113.7(c). Appellant was convicted of an offense in a prosecution barred by
statute. This blanket prohibition, in my view, rendered the trial court
incompetent to render a verdict and a judgment of sentence in this matter.
Appellant’s judgment of sentence should be vacated, and she should
be discharged. Hence, this dissent.
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