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Pa'O language - Wikipedia
Pa'O (also spelled Pa-O and Pa'O language,ပအိုဝ်ႏဘာႏသာႏ listen (help · info), Pa-oh, ပအိုဝ်ႏ; Burmese: ပအိုဝ်း), sometimes called Taungthu, is a Karen language spoken by one and a half million Pa'O people in Myanmar. Pa’O are also called Black Karen, because of their traditional black clothes. The language is primarily written using a ....
Pa'O (also spelled Pa-O and Pa'O language,ပအိုဝ်ႏဘာႏသာႏ (help·info), Pa-oh, ပအိုဝ်ႏ; Burmese: ပအိုဝ်း), sometimes called Taungthu, is a Karen language spoken by one and a half million Pa'O people in Myanmar.
The language is primarily written using a system of phonetics devised by Christian missionaries, and many of the materials now available for it on the Internet derive from Christian missionary involvement, although most of the Pa'O are generally reported to be Buddhists (without real statistics, etc.).
The language is also referred to by the exonyms "Black Karen" and "White Karen", both of which are terms used in contrast to "Red Karen" (Karenni), also of Myanmar.
Dialects include Taunggyi and Kokareit.Phonology
The following displays the phonological features of the Pa'O (Taungthu) language:Consonants Vowels References
Pennsylvania Form PA-40 PA-V (PA-40 Payment Voucher ...
PA-40 V (EX) 10-20 (FI) PA-40 PAYMENT VOUCHER PA-40 PAYMENT VOUCHER (PA-40 V) Use the 2020 Form PA-40 V with a payment of tax owed with a 2020 PA-40, Personal Income Tax Return. Do not use this voucher for any other purpose. Follow the instructions below. SOCIAL SECURITY NUMBER (SSN) SSN - enter the primary taxpayer’s nine-digit SSN without ...Download or print the 2021 Pennsylvania Form PA-40 PA-V (PA-40 Payment Voucher) for FREE from the Pennsylvania Department of Revenue..
Keyword: tax forms, income tax, state tax forms, federal tax forms, printable tax forms, download tax forms
Use Form PA-40 V with a payment of tax owed with a PA-40, Personal Income Tax Return. Do not use this voucher for any other purpose.
We last updated the PA-40 Payment Voucher in January 2022, so this is the latest version of Form PA-40 PA-V, fully updated for tax year 2021. You can download or print current or past-year PDFs of Form PA-40 PA-V directly from TaxFormFinder. You can print other Pennsylvania tax forms here.Related Pennsylvania Individual Income Tax Forms:
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Form PA-40 PA-V is a Pennsylvania Individual Income Tax form. Payment vouchers are provided to accompany checks mailed to pay off tax liabilities, and are used by the revenue department to record the purpose of the check and the SSN/EIN of the taxpayer who sent it. Many states recommend that taxpayers also write their social security number and the purpose of the payment on the check itself, in case the accompanying payment voucher is misplaced or destroyed.Historical Past-Year Versions of Pennsylvania Form PA-40 PA-V
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Planned Parenthood of Southeastern Pa. v. Casey :: 505 …
O'CONNOR, KENNEDY, and SOUTER, JJ., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, in which BLACKMUN and STEVENS, JJ., joined, an opinion with respect to Part V-E, in which STEVENS, J., joined, and an opinion with respect to Parts IV, V-B, and V-Do STEVENS, J ...A person retains the right to have an abortion, established by Roe v. Wade, but the state’s compelling interest in protecting the life of an unborn child means that it can ban an abortion of a viable fetus under any circumstances except when the health of the mother is at risk. Also, laws restricting abortion should be evaluated under an undue burden standard rather than a strict scrutiny analysis..
A person retains the right to have an abortion, established by Roe v. Wade, but the state’s compelling interest in protecting the life of an unborn child means that it can ban an abortion of a viable fetus under any circumstances except when the health of the mother is at risk. Also, laws restricting abortion should be evaluated under an undue burden standard rather than a strict scrutiny analysis.
The Pennsylvania Abortion Control Act of 1982 contained five controversial provisions: 1) doctors were required to inform women considering abortion about its potential negative impacts on their health; 2) women were required to give notice to husbands before obtaining an abortion; 3) children were required to get consent from a parent or guardian; 4) a 24-hour waiting period was required between deciding to have an abortion and undergoing the procedure; and 5) reporting requirements were imposed on facilities offering abortions.
An independent physician, a group of physicians providing abortion services, and five abortion clinics in Pennsylvania filed a lawsuit in federal district court seeking to enjoin enforcement of these provisions of the law on the grounds that they were facially unconstitutional. The district court agreed and issued the injunction, but the Third Circuit upheld all of the provisions except the second provision requiring women to give notice to their husbands. (Current Supreme Court Justice Samuel A. Alito was on the Third Circuit at the time and felt that all of the provisions should have been upheld.)
This challenge to the right of abortion provided by Roe v. Wade and based on the Fourteenth Amendment was viewed as an opportunity for a more conservative Court to overturn Roe. New Justices David Souter and Clarence Thomas had been appointed by Republican President George H.W. Bush and thus were considered to be less liberal than recently retired Democratic appointees William Brennan and Thurgood Marshall. With eight Republican appointees and only two Justices who previously had shown support for Roe, the odds were stacked against pro-choice advocates at the outset.
Issues & Holdings
Issue: Whether the decision in Roe v. Wade should be overturned as wrongly decided.
The plurality rejected the call to overturn Roe v. Wade that the state had advanced on appeal, although it reshaped some of Roe's guidelines. It emphasized the importance of adhering to precedents unless a dramatic change in the area of the previous decision had happened, and it reaffirmed the existence of a constitutional right to abortion. In this case, O'Connor did not feel that society had developed a concurrence against abortion similar to the concurrence against separate-but-equal education that resulted in Brown v. Board of Education overruling Plessy v. Ferguson. Blackmun and Stevens agreed with this section of the opinion, giving it the necessary five votes for Roe to survive.
Replacing the trimester formula in Roe with an emphasis on viability, the plurality found that a fetus could become viable earlier than when Roe was decided, and it held that a state could ban abortion once a fetus becomes viable unless the health of the mother was at risk. Its other notable revision of Roe was its replacement of strict scrutiny with an undue burden standard that was more lenient to the state. O'Connor built on her dissenting opinion from the Court's 1983 decision in Akron v. Akron Center for Reproductive Health in holding that restrictions on abortion before the fetus was viable were constitutional unless they posed a substantial obstacle to the woman seeking an abortion.
As a result, the plurality invalidated the husband notice requirement for reasons similar to those stated by the Third Circuit. It upheld the other provisions of the law.
Concurrence/Dissent In Part
Stevens agreed with the portion of the majority opinion that upheld Roe but would have overruled all of the challenged provisions of the law.
Concurrence/Dissent In Part
Blackmun largely agreed with Stevens in applying a heightened standard of review and finding that all of the provisions were unconstitutional under it.
Concurrence/Dissent In Part
Rehnquist would have upheld all of the provisions, including the husband notice requirement, and also overruled Roe. He pointed out the inconsistencies in the majority's stated respect for precedent and its substantial reshaping of the Roe framework.
Concurrence/Dissent In Part
Scalia agreed with Rehnquist that the Court should have used this opportunity to overrule Roe entirely. He also would have upheld the constitutionality of all the provisions.
This case was a descendant of the Roe v. Wade line of decisions, but it replaced the trimester framework with a focus on viability in determining when the state's interests could outweigh the interests of a pregnant woman. The addition of the undue burden standard tilted the balance in the state's favor when making these determinations, however. Since the Court was so deeply divided, the door remained open to future challenges to Roe.
Com., Dept. of Transp. v. O'CONNELL, 555 A.2d 873, 521 Pa ...
Opinion for Com., Dept. of Transp. v. O'CONNELL, 555 A.2d 873, 521 Pa. 242 — Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information.Opinion for Com., Dept. of Transp. v. O'CONNELL, 555 A.2d 873, 521 Pa. 242 — Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information..
George B. Ditter, Ambler, for appellant.
Michael R. Deckman, Deputy Chief Counsel, Spencer A. Manthrope, Chief Counsel, Jay C. Waldman, Gen. Counsel, Harold H. Cramer and Christopher J. Clements, Asst. Counsel, Harrisburg, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.OPINION OF THE COURT
This is the appeal of Patrick M. O'Connell, Appellant, from the Opinion and Order of the Commonwealth Court reversing an order of the Court of Common Pleas of Montgomery County which, in turn, reversed a one year suspension of Appellant's driving privileges imposed by the Pennsylvania Department of Transportation, Bureau of Traffic Safety (Department). The Department imposed the one year suspension on Appellant's motor vehicle operator's license for his refusal to take a breathalyzer test as required in Section 1547(b) of the Motor Vehicle Code, 75 Pa.C.S. § 1547(b).
It is undisputed that Appellant was operating an automobile which struck two parked cars in Abington Township, Montgomery County, on the evening of June 19, 1983. The Abington Township police officer who investigated the accident noticed a strong odor of alcohol on Appellant's breath and conducted a field sobriety test. When Appellant could not pass the test, the officer arrested Appellant for driving under the influence of alcohol. Appellant was immediately advised of his Miranda rights and taken to the Township Police Station where he was again given his Miranda rights in written form. The document was read to Appellant and he was asked to respond to each question in writing. Paragraph 6 of the form asked, "Do you want to talk to a lawyer at this time or have a lawyer with you while we ask you questions?" Appellant initially answered this question "No", but subsequently changed his answer to "Yes".
When Appellant had completed the form (with his changed answer to question 6), he was asked to take a breathalyzer test. At this point, the facts are somewhat disputed. Appellant testified before the trial court that he refused to take the test and that he told the officer that he was refusing because he had not been permitted to contact his attorney. The officer testified that Appellant refused three times and that he gave no reason for his refusal. The officer also testified that after the third refusal Appellant was permitted to call his lawyer and that following this conversation, Appellant was willing to submit to the breathalyzer test, but that the officer refused to administer the test because he had been unable to observe Appellant personally for the past 35-45 minutes.
Appellant's refusal was reported to the Department and it imposed the mandatory one year suspension of Appellant's license pursuant to 75 Pa.C.S. § 1547(b). A timely appeal to the Court of Common Pleas followed. A hearing was held before the Honorable Albert R. Subers on January 9, 1984, where Appellant and the arresting officer testified as to what occurred on the night of June 19, 1983.
The trial court accepted Appellant's testimony as credible and concluded that his refusal was based on his mistaken belief that he had a right to speak with his attorney in regards to taking the breathalyzer test and that since no such right is recognized at law, Appellant's refusal could be excused as unknowing. The Department appealed the trial court's order vacating the one year license suspension to the Commonwealth Court and argued before that court that insufficient evidence existed to support the trial court's factual findings and that the police are not required to inform an arrestee that his right to speak to an attorney (assured by Miranda) does not extend to requests to submit to breathalyzer tests.
The Commonwealth Court reviewed the trial court's findings and found them to be unsupported by the record and therefore reversed the order of the trial court. The Commonwealth Court also reviewed its case law in breathalyzer testing situations and clarified its prior holdings, ruling that police officers have a duty to inform an arrestee that he has no right to speak with an attorney in regards to taking the breathalyzer test, only where the arrestee asks to consult with someone before making the decision to take the test. Commonwealth, Department of Transportation, Bureau of Traffic Safety v. O'Connell, 99 Pa.Commonwealth Ct. 410, 513 A.2d 1083 (1986).
We granted Appellant's petition for allowance of appeal to determine whether the proper scope of review was applied to this matter and to give guidance in the troublesome situation presented in cases such as this one, where a person is arrested for a crime, read Miranda rights, and is then told to submit to a breathalyzer test, but is not told that his right to see an attorney does not extend to taking this test.
When appellate courts review the decision of a court of common pleas in a license suspension case, the scope of review is limited to determining whether the findings of facts of the trial court are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion in reaching its decision. Commonwealth of Pennsylvania, Department of Transportation v. Korchak, 506 Pa. 52, 483 A.2d 1360 (1984); Bureau of Highway Safety v. Wright, 355 Pa. 307, 49 A.2d 783 (1946).
Questions of credibility and conflicts in the evidence presented are for the trial court to resolve, not our appellate courts. Korchak; see also, Waigand v. Commonwealth, 68 Pa.Commonwealth Ct. 541, 449 A.2d 862 (1982); McMahon v. Commonwealth, 39 Pa.Commonwealth Ct. 260, 395 A.2d 318 (1978).
As long as sufficient evidence exists in the record which is adequate to support the finding found by the trial court, as factfinder, we are precluded from overturning that finding and must affirm, thereby paying the proper deference due to the factfinder who heard the witnesses testify and was in the sole position to observe the demeanor of the witnesses and assess their credibility. This rule of law is well established in our jurisprudence and is rooted in concepts of fairness, common sense and judicial economy. Norfolk & W. Ry. Co. v. Pa. Public Utility, 489 Pa. 109, 413 A.2d 1037 (1980); PHRC v. Chester Housing Authority, 458 Pa. 67, 327 A.2d 335 (1974); Burbage v. Boiler Eng'g. & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969); D.F. Bast, Inc. v. Pa., PUC, 397 Pa. 246, 154 A.2d 505 (1959); see also, McGovern's Estate v. State Employment Retirement Bd., 512 Pa. 377, 517 A.2d 523 (1986).
Additionally, in license suspension cases under Section 1547(b) of the Vehicle Code, the Commonwealth must establish that the driver involved: (1) was arrested for driving while under the influence of alcohol; (2) was asked to submit to a breathalyzer test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his driver's license. See, Everhart v. Commonwealth, 54 Pa.Commonwealth Ct. 22, 420 A.2d 13 (1980).
Once the Commonwealth meets its burden, it is the driver's responsibility to prove that he was not capable of making a knowing and conscious refusal to take the test. This is a factual determination which is to be made by the trial court.
In this case, it is admitted that the Commonwealth satisfied its burden in proving that Appellant was arrested for drunken driving, was asked to submit to a breathalyzer test, that he refused, and that he was warned that his license would be suspended if he refused. The question in the case then, is whether the refusal was a knowing one. Appellant asserted at the hearing before the trial court that he refused to take the test because he was misled into believing that he was entitled to confer with an attorney prior to deciding to take the test. On direct examination, Appellant explained that he told the arresting officer he was refusing to take the test for the following reason:
The arresting officer denied that Appellant explained himself in this manner and recalled that Appellant gave no reason but simply stated, "You are signing my death warrant." On cross-examination, Appellant denied making this statement and could not recall what he said with regard to the statement to which the Commonwealth attorney was referring. Thus, the trial court was confronted with two witnesses who remembered the events of June 19, 1983 quite differently and who was in the position to decide for himself which of the two witnesses was more credible. The trial court chose to believe Appellant and his findings in this regard are conclusive. It was not for the Commonwealth Court to read into the record, weigh the evidence, and to decide for itself that Appellant did or did not state his reasons to the officer or that Appellant could or could not recall what he said to the officer. That, as we have said, was for the trial court to do. We read this record to contain evidence which can support Appellant's position, that he was misled into thinking that he had a right to speak to his attorney before taking the breathalyzer test, and therefore affirm the trial court's findings in Appellant's favor. To the extent that the Commonwealth Court chose to accept and reject portions of Appellant's testimony and, in effect, to make its own findings of fact, it exceeded its scope of review and its decision must be reversed.
Appellant also argues, however, that this whole controversy arose because the request to take the breathalyzer test came hot on the heels of the Miranda questioning. Appellant specifically chose to exercise his right to speak to his attorney before proceeding any further in any questioning dealing with the drunk driving charges. Since the Appellant chose to exercise his rights, the arresting officer promptly and properly stopped any questioning, but did not let Appellant make his phone call. Instead, the officer began his requests that Appellant submit to the breathalyzer test.
Appellant argues that when he chose to exercise his right to speak with an attorney and his request was met with a request to take a test, he was confused. The Department argues that a driver's responsibility to take a breathalyzer test arises in a civil, not criminal, context and no right to speak to counsel is implicated. Accordingly, the Department argues that since Appellant was properly placed under arrest and asked to submit to the test and told the consequences if he refused to submit to the test, he was told all that the law required. The Department concludes that anything short of an unqualified assent to take the test under these circumstances is viewed as a refusal and cites various Commonwealth Court decisions in this area of the law supportive of the argument that confusion arising as to whether a driver may speak to an attorney is not a sufficient reason to refuse to submit to the breathalyzer test.
It is true that as a condition of maintaining a driver's license in this Commonwealth, all drivers are subject to the implied consent requirements of the Motor Vehicle Code and must submit to blood and breath tests under appropriate circumstances. Department of Transportation, Bureau of Traffic Safety v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987); 75 Pa.C.S. § 1547(a). It is also true that these requests to submit to blood and breath tests are civil proceedings and that the right to consult with an attorney before taking the test is not recognized in Pennsylvania. See, King v. Department of Transportation, Bureau of Traffic Safety, 81 Pa.Commonwealth Ct. 177, 472 A.2d 1196 (1984).
The problem in this case, and many similar cases that have arisen, is that these requests to take breathalyzer tests take place as part of the investigation conducted by police in regards to a drunk driving charge which is criminal in nature. The police proceed with the Miranda warnings and at some point (usually when the driver asks to see his lawyer) stop questioning and abruptly change "hats" and ask the driver to submit to the breathalyzer test. If the arrestee hesitates and attempts to exercise his Miranda right by asking for a lawyer or asking to make a phone call, a refusal is recorded.
This state of affairs is unacceptable because it is fraught with pitfalls for the arrestee who is not trained to recognize the difference between a civil or criminal investigation and becomes a source of accusation of manipulation by the police over confused individuals who are suspected of having dulled senses.
The law has always required that the police must tell the arrestee of the consequences of a refusal to take the test so that he can make a knowing and conscious choice. See, Everhart v. Commonwealth, 54 Pa.Commonwealth Ct. 22, 420 A.2d 13 (1980); Ford v. Department of Transportation, Bureau of Traffic Safety, 45 Pa.Commonwealth Ct. 268, 406 A.2d 240 (1979).
Accordingly, where an arrestee requests to speak to or call an attorney, or anyone else, when requested to take a breathalyzer test, we insist that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test.
An arrestee is entitled to this information so that his choice to take a breathalyzer test can be knowing and conscious and we believe that requiring the police to qualify the extent of the right to counsel is neither onerous nor will it unnecessarily delay the taking of the test.
Since the course of conduct of the police creates the confusion in these cases, it is appropriate to place the duty on them to clarify the extent of the right of counsel when asking arrestees to take breathalyzer tests thereby insuring that those arrestees who indicate their confusion over their Miranda rights, are not being misled into making uninformed and unknowing decisions to take the test.
The order of the Commonwealth Court is reversed.
STOUT, J., concurs in the result.NOTES
 75 Pa.C.S. § 1547(b) provides as follows:
B. Suspension for refusal
(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.
(2) It shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended upon refusal to submit to chemical testing.
(3) Any person whose operating privilege is suspended under the provisions of this section shall have the same right of appeal as provided for in cases of suspension for other reasons.
 This area of the law has generated considerable litigation in the Commonwealth Court over the years and indicates that many individuals are being deprived of their license because of their confusion over when they can or cannot ask for an attorney. This list, of course, only represents cases where individuals sought appellate review. It is unknown how many cases end with the trial court's affirmance of the suspension under the same circumstance because the litigant cannot afford to appeal, but the number of these cases must be large.
Department of Transportation, Bureau of Traffic Safety v. Bender, 107 Pa.Commonwealth Ct. 475, 529 A.2d 44 (1987); Appeal of Kilcullen, 103 Pa.Commonwealth Ct. 521, 520 A.2d 947 (1987); Department of Transportation, Bureau of Traffic Safety v. Turner, 100 Pa.Commonwealth Ct. 539, 515 A.2d 96 (1986); Department of Transportation, Bureau of Traffic Safety v. Bartelt, 94 Pa.Commonwealth Ct. 198, 503 A.2d 103 (1986); Department of Transportation, Bureau of Traffic Safety v. Doherty, 88 Pa.Commonwealth Ct. 482, 490 A.2d 481 (1985); King v. Department of Transportation, Bureau of Traffic Safety, 81 Pa.Commonwealth Ct. 177, 472 A.2d 1196 (1984); Department of Transportation, Bureau of Traffic Safety v. Mumma, 79 Pa.Commonwealth Ct. 108, 468 A.2d 891 (1983); Department of Transportation, Bureau of Traffic Safety v. Miele, 75 Pa.Commonwealth Ct. 130, 461 A.2d 359 (1983); Department of Transportation, Bureau of Traffic Safety v. Wroblewski, 65 Pa.Commonwealth Ct. 333, 442 A.2d 407 (1982); Wilson v. Commonwealth, 53 Pa.Commonwealth Ct. 342, 417 A.2d 867 (1980); Department of Transportation, Bureau of Traffic Safety v. Herman, 49 Pa.Commonwealth Ct. 201, 410 A.2d 1296 (1980); Sentle v. Commonwealth, 48 Pa.Commonwealth Ct. 479, 410 A.2d 903 (1980); Weitzel Appeal, 41 Pa.Commonwealth Ct. 235, 400 A.2d 646 (1979); Ford v. Department of Transportation, Bureau of Traffic Safety, 45 Pa.Commonwealth Ct. 268, 406 A.2d 240 (1979); Department of Transportation, Bureau of Traffic Safety v. O'Rourke, 25 Pa.Commonwealth Ct. 580, 361 A.2d 496 (1976); Department of Transportation, Bureau of Traffic Safety v. Cannon, 4 Pa.Commonwealth Ct. 119, 286 A.2d 24 (1972).
ROVERS Club- Land Rovers, Discovery, D-90, Defender ...
R.O.V.E.R.S. ( ROVERS Club ) is an incorporated Land Rover club (Series Land Rover, Range Rover, Defender , Discovery and Freelander) serving the Mid-Atlantic region (including Pennsylvania, Maryland, Delaware and New Jersey). Membership is open to all Land Rover enthusiasts. The club plans and participates in off-road events, picnic, rallies, car shows and shop days.R.O.V.E.R.S. ( ROVERS Club ) is an incorporated Land Rover club (Series Land Rover, Range Rover, Defender , Discovery and Freelander) serving the Mid-Atlantic region (including Pennsylvania, Maryland, Delaware and New Jersey). Membership is open to all Land Rover enthusiasts. The club plans and participates in off-road events, picnic, rallies, car shows and shop days. We also publish a newsletter The Fairlead six times a year..
Our Next EventRovers Club Spring(ish) Trail Hop Blairstown, NJ - March 28-29.
Come enjoy a relaxing weekend of Rovers, food and perhaps a bit of mud. The year featuring a very special visitor. Well give you a hint...
More info coming soon.
R.O.V.E.R.S. is a Land Rover club (Series Land Rover, Range
Rover, Defender, Discovery and Freelander) serving the Mid-Atlantic
region (including Pennsylvania, Maryland, Delaware and New Jersey).
Membership is open to all Land Rover enthusiasts. The club plans and
participates in off-road events, picnic, rallies, car shows and shop
Ask questions about your Land Rover or any of the vehicle belonging to members. If you wish to join our club forms will be provided to fill out, a yearly membership of $25. New members will receive a t-shirt, sticker and a newsletter. Stickers are mailed out, t-shirts are only available at events.
Chapter 39. - Title 18 - CRIMES AND OFFENSES
Act 192 of 2014 was declared unconstitutional. Leach v. Commonwealth, 141 A.3d 426 (Pa. 2016). The Legislative Reference Bureau effectuated the 2016 unconstitutionality. 2014 Amendment. Act 192 added section 3935..
THEFT AND RELATED OFFENSES
A. General Provisions
B. Definition of Offenses
Enactment. Chapter 39 was added December 6, 1972, P.L.1482, No.334, effective in six months.
Cross References. Chapter 39 is referred to in section 911 of this title; section 2303 of Title 44 (Law and Justice); section 2905 of Title 66 (Public Utilities).
3902. Consolidation of theft offenses.
3903. Grading of theft offenses.
3904. Arrest without warrant.
§ 3901. Definitions.
Subject to additional definitions contained in subsequent provisions of this chapter which are applicable to specific provisions of this chapter, the following words and phrases when used in this chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
(1) To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or
(2) to dispose of the property so as to make it unlikely that the owner will recover it.
"Financial institution." A bank, insurance company, credit union, building and loan association, investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.
"Firearm." Any weapon that is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.
"Government." The United States, any state, county, municipality, or other political unit, or any department, agency or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of government.
"Movable property." Property the location of which can be changed, including things growing on, affixed to, or found in land, and documents although the rights represented thereby have no physical location. "Immovable property" is all other property.
(1) To bring about a transfer or purported transfer of legal interest in property, whether to the obtainer or another; or
(2) in relation to labor or service, to secure performance thereof.
"Property." Anything of value, including real estate, tangible and intangible personal property, contract rights, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power.
"Property of another." Includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.
(July 17, 2007, P.L.139, No.41, eff. 60 days)
2007 Amendment. Act 41 added the def. of "firearm."
§ 3902. Consolidation of theft offenses.
Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the complaint or indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.
§ 3903. Grading of theft offenses.
(a) Felony of the second degree.--Theft constitutes a felony of the second degree if:
(1) The offense is committed during a manmade disaster, a natural disaster or a war-caused disaster and constitutes a violation of section 3921 (relating to theft by unlawful taking or disposition), 3925 (relating to receiving stolen property), 3928 (relating to unauthorized use of automobiles and other vehicles) or 3929 (relating to retail theft).
(2) The property stolen is a firearm.
(3) In the case of theft by receiving stolen property, the property received, retained or disposed of is a firearm.
(4) The property stolen is any amount of anhydrous ammonia.
(5) The amount involved is $100,000 or more but less than $500,000.
(a.1) Felony of the third degree.--Except as provided in subsection (a) or (a.2), theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.
(a.2) Felony of the first degree.--Except as provided in subsections (a) and (a.1), theft constitutes a felony of the first degree if:
(1) in the case of theft by receiving stolen property, the property received, retained or disposed of is a firearm and the receiver is in the business of buying or selling stolen property; or
(2) the amount involved is $500,000 or more.
(b) Other grades.--Theft not within subsection (a), (a.1) or (a.2), constitutes a misdemeanor of the first degree, except that if the property was not taken from the person or by threat, or in breach of fiduciary obligation, and:
(1) the amount involved was $50 or more but less than $200 the offense constitutes a misdemeanor of the second degree; or
(2) the amount involved was less than $50 the offense constitutes a misdemeanor of the third degree.
(c) Valuation.--The amount involved in a theft shall be ascertained as follows:
(1) Except as otherwise specified in this section, value means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.
(2) Whether or not they have been issued or delivered, certain written instruments, not including those having a readily ascertainable market value such as some public and corporate bonds and securities, shall be evaluated as follows:
(i) The value of an instrument constituting an evidence of debt, such as a check, draft or promissory note, shall be deemed the amount due or collectible thereon or thereby, such figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied.
(ii) The value of any other instrument which creates, releases, discharges or otherwise affects any valuable legal right, privilege or obligation shall be deemed the greatest amount of economic loss which the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.
(3) When the value of property cannot be satisfactorily ascertained pursuant to the standards set forth in paragraphs (1) and (2) of this subsection its value shall be deemed to be an amount less than $50. Amounts involved in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.
(d) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Manmade disaster." Any industrial, nuclear or transportation accident, explosion, conflagration, power failure, natural resource shortage or other condition, except enemy action, resulting from manmade causes, such as oil spills and other injurious environmental contamination, which threatens or causes substantial damage to property, human suffering, hardship or loss of life.
"Natural disaster." Any hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion or other catastrophe which results in substantial damage to property, hardship, suffering or possible loss of life.
"War-caused disaster." Any condition following an attack upon the United States resulting in substantial damage to property or injury to persons in the United States caused by use of bombs, missiles, shellfire, nuclear, radiological, chemical or biological means, or other weapons or overt paramilitary actions, or other conditions such as sabotage.
(June 17, 1974, P.L.356, No.118, eff. imd.; Nov. 29, 1990, P.L.608, No.154, eff. 60 days; Dec. 15, 1999, P.L.915, No.59, eff. 60 days; Nov. 23, 2004, P.L.953, No.143, eff. 60 days; June 28, 2011, P.L.48, No.10, eff. 60 days; Dec. 23, 2013, P.L.1264, No.131, eff. 60 days)
2013 Amendment. Act 131 amended subsecs. (a) and (a.2). Section 3 of Act 131 provided that the amendment shall apply to offenses committed on or after the effective date of section 3. Section 4 of Act 131 provided that the amendment shall apply to sentences imposed on or after the effective date of section 4.
2011 Amendment. Act 10 amended subsecs. (a), (a.1) and (b) and added subsec. (a.2). See the preamble to Act 10 in the appendix to this title for special provisions relating to legislative findings.
Cross References. Section 3903 is referred to in section 3926 of this title.
§ 3904. Arrest without warrant.
A law enforcement officer shall have the same right of arrest without a warrant for any grade of theft as exists or may hereafter exist in the case of the commission of a felony.
(Oct. 17, 1974, P.L.749, No.251)
1974 Amendment. Act 251 added section 3904.
DEFINITION OF OFFENSES
3921. Theft by unlawful taking or disposition.
3922. Theft by deception.
3922.1. Financial exploitation of an older adult or care-dependent person.
3923. Theft by extortion.
3924. Theft of property lost, mislaid, or delivered by mistake.
3925. Receiving stolen property.
3926. Theft of services.
3927. Theft by failure to make required disposition of funds received.
3928. Unauthorized use of automobiles and other vehicles.
3929. Retail theft.
3929.1. Library theft.
3929.2. Unlawful possession of retail or library theft instruments.
3929.3. Organized retail theft.
3930. Theft of trade secrets.
3931. Theft of unpublished dramas and musical compositions.
3932. Theft of leased property.
3933. Unlawful use of computer (Repealed).
3934. Theft from a motor vehicle.
3935. Theft of secondary metal (Unconstitutional).
3935.1. Theft of secondary metal.
§ 3921. Theft by unlawful taking or disposition.
(a) Movable property.--A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.
(b) Immovable property.--A person is guilty of theft if he unlawfully transfers, or exercises unlawful control over, immovable property of another or any interest therein with intent to benefit himself or another not entitled thereto.
Cross References. Section 3921 is referred to in sections 1107, 3311, 3903, 3935.1, 5708, 6105 of this title; section 5552 of Title 42 (Judiciary and Judicial Procedure).
§ 3922. Theft by deception.
(a) Offense defined.--A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
(2) prevents another from acquiring information which would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
(b) Exception.--The term "deceive" does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.
Cross References. Section 3922 is referred to in sections 3311, 5708 of this title; sections 5552, 9717 of Title 42 (Judiciary and Judicial Procedure).
§ 3922.1. Financial exploitation of an older adult or care-dependent person.
(a) Offense defined.--A person in a position of trust who commits the offense of financial exploitation of an older adult or care-dependent person shall be subject to the criminal penalties specified under subsection (b).
(b) Grading.--Financial exploitation of an older adult or care-dependent person constitutes a:
(1) Felony of the first degree if:
(i) the amount involved is at least $500,000; or
(ii) the person participated in a course of conduct resulting in the loss of property of two or more older adults or care-dependent persons.
(2) Felony of the second degree if the amount involved is at least $100,000 but less than $500,000.
(3) Felony of the third degree if the amount involved exceeds $2,000 but is less than $100,000.
(4) Except for offenses under paragraphs (1), (2) and (3), misdemeanor of the first degree.
(c) Presumptions.--A person acting under a power of attorney for an older adult or care-dependent person is presumed to understand the legal obligations under 20 Pa.C.S. Ch. 56 (relating to powers of attorney).
(d) Concurrent jurisdiction to prosecute.--In addition to the authority conferred upon the Attorney General by the act of October 15, 1980 (P.L.950, No.164), known as the Commonwealth Attorneys Act, the Attorney General may investigate and institute criminal proceedings for any violation of this section or related offenses if the amount involved exceeds $20,000. No person charged with a violation of this section by the Attorney General may challenge the authority of the Attorney General to investigate or prosecute the case, and, if a challenge is made, the challenge shall be dismissed, and no relief shall be made available in the courts of this Commonwealth to the person making the challenge.
(e) Enforcement.--The district attorney of a county shall have the authority to investigate and institute criminal proceedings for any violation of this section or related offenses.
(f) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:
"Care-dependent person." An adult who, due to physical or cognitive disability or impairment, requires assistance to meet needs for food, shelter, clothing, personal care or health care.
"Course of conduct." A pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct.
"Financial exploitation." The wrongful or unauthorized taking or attempt to take by withholding, appropriating, concealing or using the money, assets or property of an older adult or care-dependent person, including any act or omission taken by a person, including through the use of a power of attorney, guardian, custodian, trustee, personal representative or conservator of an older adult or care-dependent person or by an individual who stands in a position of trust and confidence with an older adult or care-dependent person, including business transactions to:
(1) obtain or attempt to obtain control, through deception, intimidation or undue influence, over the older adult's or care-dependent person's money, assets or property to deprive the older adult or care-dependent person of the ownership, use, benefit or possession of the older adult's or care-dependent person's money, assets or property; or
(2) convert or attempt to convert money, assets or property of the older adult or care-dependent person to deprive the older adult or care-dependent person of the ownership, use, benefit or possession of the older adult's or care-dependent person's money, assets or property.
"Older adult." A person who is at least 60 years of age.
"Position of trust." A person who meets any of the following criteria:
(1) The person is the parent, spouse, adult child or other relative by blood or affinity of an older adult or care-dependent person.
(2) The person is a joint tenant or tenant in common with an older adult or care-dependent person.
(3) The person has a fiduciary obligation to an older adult or care-dependent person, including through the power of attorney, guardianship, custodianship or conservatorship or as a trustee or personal representative.
(4) The person receives monetary or other valuable consideration for providing care for an older adult or care-dependent person.
(5) The person lives with or provides some component of home care services on a continuing basis to an older adult or care-dependent person, including a neighbor or friend who does not provide home care services on a compensated basis but has access to the older adult or care-dependent person based on the relationship.
(6) The person is a current or former sexual or intimate partner with an older adult or care-dependent person.
"Property." Anything of value, including real estate, tangible personal property, contract rights, money, bank accounts, investment accounts, stocks, bonds, retirement accounts or any other deposit of money or medium of savings or collective investment or other interests in or claims to wealth.
(June 30, 2021, P.L.228, No.48, eff. 60 days)
2021 Amendment. Act 48 added section 3922.1.
§ 3923. Theft by extortion.
(a) Offense defined.--A person is guilty of theft if he intentionally obtains or withholds property of another by threatening to:
(1) commit another criminal offense;
(2) accuse anyone of a criminal offense;
(3) expose any secret tending to subject any person to hatred, contempt or ridicule;
(4) take or withhold action as an official, or cause an official to take or withhold action;
(5) bring about or continue a strike, boycott or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act;
(6) testify or provide information or withhold testimony or information with respect to the legal claim or defense of another; or
(7) inflict any other harm which would not benefit the actor.
(b) Defenses.--It is a defense to prosecution based on paragraphs (a)(2), (a)(3) or (a)(4) of this section that the property obtained by threat of accusation, exposure, lawsuit or other invocation of official action was honestly claimed as restitution or indemnification for harm done in the circumstances to which such accusation, exposure, lawsuit or other official action relates, or as compensation for property or lawful services.
(June 24, 1976, P.L.425, No.102, eff. imd.)
Cross References. Section 3923 is referred to in sections 3001, 5708, 6105 of this title; section 3304 of Title 5 (Athletics and Sports); sections 5552, 9802 of Title 42 (Judiciary and Judicial Procedure); section 7122 of Title 61 (Prisons and Parole).
§ 3924. Theft of property lost, mislaid, or delivered by mistake.
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.
Cross References. Section 3924 is referred to in section 5552 of Title 42 (Judiciary and Judicial Procedure).
§ 3925. Receiving stolen property.
(a) Offense defined.--A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
(b) Definition.--As used in this section the word "receiving" means acquiring possession, control or title, or lending on the security of the property.
Cross References. Section 3925 is referred to in sections 3903, 3929.3, 5708, 6105 of this title; section 5552 of Title 42 (Judiciary and Judicial Procedure).
§ 3926. Theft of services.
(a) Acquisition of services.--
(1) A person is guilty of theft if he intentionally obtains services for himself or for another which he knows are available only for compensation, by deception or threat, by altering or tampering with the public utility meter or measuring device by which such services are delivered or by causing or permitting such altering or tampering, by making or maintaining any unauthorized connection, whether physically, electrically or inductively, to a distribution or transmission line, by attaching or maintaining the attachment of any unauthorized device to any cable, wire or other component of an electric, telephone or cable television system or to a television receiving set connected to a cable television system, by making or maintaining any unauthorized modification or alteration to any device installed by a cable television system, or by false token or other trick or artifice to avoid payment for the service.
(1.1) A person is guilty of theft if he intentionally obtains or attempts to obtain telecommunication service by the use of an unlawful telecommunication device or without the consent of the telecommunication service provider.
(2) (Deleted by amendment).
(3) A person is not guilty of theft of cable television service under this section who subscribes to and receives service through an authorized connection of a television receiving set at his dwelling and, within his dwelling, makes an unauthorized connection of an additional television receiving set or sets or audio system which receives only basic cable television service obtained through such authorized connection.
(4) Where compensation for service is ordinarily paid immediately upon the rendering of such service, as in the case of hotels and restaurants, refusal to pay or absconding without payment or offer to pay gives rise to a presumption that the service was obtained by deception as to intention to pay.
(b) Diversion of services.--A person is guilty of theft if, having control over the disposition of services of others to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.
(1) An offense under this section constitutes a summary offense when the value of the services obtained or diverted is less than $50.
(2) When the value of the services obtained or diverted is $50 or more, the grading of the offense shall be as established in section 3903 (relating to grading of theft offenses).
(3) Amounts involved in theft of services committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.
(1) Any person having possession of or access to the location of a public utility meter or service measuring device which has been avoided or tampered with so as to inhibit or prevent the accurate measurement of utility service and who enjoys the use of or receives the benefit from the public utility service intended to be metered or measured by the public utility meter or measuring device so avoided or tampered with may be reasonably inferred to have acted to avoid or tamper with the public utility meter or measuring device with the intent to obtain the public utility service without making full compensation therefor.
(2) Any person having possession of or access to the location of the distribution or transmission lines or other facilities of a cable television system which have been tapped, altered or tampered with or to which any unauthorized connection has been made or to which any unauthorized device has been attached or any person having possession of or access to any device installed by a cable television system to which an unauthorized modification or alteration has been made, the result of which tapping, altering, tampering, connection, attachment or modification is to avoid payment for all or any part of the cable television service for which payment is normally required, and who enjoys the use of or receives the benefit from the cable television service, may be reasonably inferred to have acted to have tapped, altered, tampered with, connected or attached to or modified cable television facilities with the intent to obtain cable television service without making full compensation therefor. This inference shall not apply to the act of a subscriber to cable television service, who receives service through an authorized connection of a television receiving set at his dwelling, in making, within his dwelling, an unauthorized connection of an additional television receiving set or sets or audio system which receives only basic cable television service obtained through such authorized connection.
(e) Sale or transfer of device or plan intended for acquisition or diversion.--A person is guilty of a misdemeanor of the third degree if he sells, gives or otherwise transfers to others or offers, advertises or exposes for sale to others, any device, kit, plan or other instructional procedure for the making of such device or a printed circuit, under circumstances indicating his having knowledge or reason to believe that such device, kit, plan or instructional procedure is intended for use by such others for the acquisition or diversion of services as set forth in subsections (a) and (b).
(f) Restitution.--The court may, in addition to any other sentence authorized by law, sentence a person convicted of violating this section to make restitution under section 1106 (relating to restitution for injuries to person or property) or 42 Pa.C.S. § 9721(c) (relating to sentencing generally).
(g) Civil action.--A telecommunication service provider aggrieved by a violation of this section may in a civil action in any court of competent jurisdiction obtain appropriate relief, including preliminary and other equitable or declaratory relief, compensatory and punitive damages, reasonable investigation expenses, costs of suit and attorney fees.
(h) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Service." Includes, but is not limited to, labor, professional service, transportation service, the supplying of hotel accommodations, restaurant services, entertainment, cable television service, the supplying of equipment for use and the supplying of commodities of a public utility nature such as gas, electricity, steam and water, and telephone or telecommunication service. The term "unauthorized" means that payment of full compensation for service has been avoided, or has been sought to be avoided, without the consent of the supplier of the service.
"Telecommunication service provider." A person or entity providing telecommunication service, including, but not limited to, a cellular, paging or other wireless communications company or other person or entity which, for a fee, supplies the facility, cell site, mobile telephone switching office or other equipment or telecommunication service.
"Telephone service" or "telecommunication service." Includes, but is not limited to, any service provided for a charge or compensation to facilitate the origination, transmission, emission or reception of signs, signals, data, writings, images and sounds or intelligence of any nature by telephone, including cellular telephones, wire, radio, electromagnetic, photoelectronic or photo-optical system.
"Unlawful telecommunication device." Any electronic serial number, mobile identification number, personal identification number or any telecommunication device that is capable or has been altered, modified, programmed or reprogrammed alone or in conjunction with another access device or other equipment so as to be capable of acquiring or facilitating the acquisition of a telecommunication service without the consent of the telecommunication service provider. The term includes, but is not limited to, phones altered to obtain service without the consent of the telecommunication service provider, tumbler phones, counterfeit or clone phones, tumbler microchips, counterfeit or clone microchips, scanning receivers of wireless telecommunication service of a telecommunication service provider and other instruments capable of disguising their identity or location or of gaining access to a communications system operated by a telecommunication service provider.
(Apr. 28, 1978, P.L.85, No.40, eff. 60 days; Nov. 26, 1978, P.L.1326, No.321, eff. 90 days; Dec. 21, 1984, P.L.1210, No.230, eff. imd.; June 13, 1995, P.L.52, No.8, eff. 60 days)
Cross References. Section 3926 is referred to in sections 910, 5708 of this title; section 5552 of Title 42 (Judiciary and Judicial Procedure).
§ 3927. Theft by failure to make required disposition of funds received.
(a) Offense defined.--A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.
(b) Presumptions.--An officer or employee of the government or of a financial institution is presumed:
(1) to know any legal obligation relevant to his criminal liability under this section; and
(2) to have dealt with the property as his own if he fails to pay or account upon lawful demand, or if an audit reveals a shortage or falsification of accounts.
Cross References. Section 3927 is referred to in section 5708 of this title; section 5552 of Title 42 (Judiciary and Judicial Procedure).
§ 3928. Unauthorized use of automobiles and other vehicles.
(a) Offense defined.--A person is guilty of a misdemeanor of the second degree if he operates the automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle of another without consent of the owner.
(b) Defense.--It is a defense to prosecution under this section that the actor reasonably believed that the owner would have consented to the operation had he known of it.
Cross References. Section 3928 is referred to in section 3903 of this title; section 5552 of Title 42 (Judiciary and Judicial Procedure).
§ 3929. Retail theft.
(a) Offense defined.--A person is guilty of a retail theft if he:
(1) takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof;
(2) alters, transfers or removes any label, price tag marking, indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale in a store or other retail mercantile establishment and attempts to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of the full retail value of such merchandise;
(3) transfers any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the full retail value thereof; or
(4) under-rings with the intention of depriving the merchant of the full retail value of the merchandise.
(5) destroys, removes, renders inoperative or deactivates any inventory control tag, security strip or any other mechanism designed or employed to prevent an offense under this section with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof.
(1) Retail theft constitutes a:
(i) Summary offense when the offense is a first offense and the value of the merchandise is less than $150.
(ii) Misdemeanor of the second degree when the offense is a second offense and the value of the merchandise is less than $150.
(iii) Misdemeanor of the first degree when the offense is a first or second offense and the value of the merchandise is $150 or more.
(iv) Felony of the third degree when the offense is a third or subsequent offense, regardless of the value of the merchandise.
(v) Felony of the third degree when the amount involved exceeds $1,000 or if the merchandise involved is a firearm or a motor vehicle.
(1.1) Any person who is convicted under subsection (a) of retail theft of motor fuel may, in addition to any other penalty imposed, be sentenced as follows:
(i) For a first offense, to pay a fine of not less than $100 nor more than $250.
(ii) For a second offense, to pay a fine of not less than $250 nor more than $500.
(iii) For a third or subsequent offense, to pay a fine of not less than $500, or the court may order the operating privilege of the person suspended for 30 days. A copy of the order shall be transmitted to the Department of Transportation.
(2) Amounts involved in retail thefts committed pursuant to one scheme or course of conduct, whether from the same store or retail mercantile establishment or several stores or retail mercantile establishments, may be aggregated in determining the grade of the offense.
(b.1) Calculation of prior offenses.--For the purposes of this section, in determining whether an offense is a first, second, third or subsequent offense, the court shall include a conviction, acceptance of accelerated rehabilitative disposition or other form of preliminary disposition, occurring before the sentencing on the present violation, for an offense under this section, an offense substantially similar to an offense under this section or under the prior laws of this Commonwealth or a similar offense under the statutes of any other state or of the United States.
(c) Presumptions.--Any person intentionally concealing unpurchased property of any store or other mercantile establishment, either on the premises or outside the premises of such store, shall be prima facie presumed to have so concealed such property with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof within the meaning of subsection (a), and the finding of such unpurchased property concealed, upon the person or among the belongings of such person, shall be prima facie evidence of intentional concealment, and, if such person conceals, or causes to be concealed, such unpurchased property, upon the person or among the belongings of another, such fact shall also be prima facie evidence of intentional concealment on the part of the person so concealing such property.
(c.1) Evidence.--To the extent that there is other competent evidence to substantiate the offense, the conviction shall not be avoided because the prosecution cannot produce the stolen merchandise.
(d) Detention.--A peace officer, merchant or merchant's employee or an agent under contract with a merchant, who has probable cause to believe that retail theft has occurred or is occurring on or about a store or other retail mercantile establishment and who has probable cause to believe that a specific person has committed or is committing the retail theft may detain the suspect in a reasonable manner for a reasonable time on or off the premises for all or any of the following purposes: to require the suspect to identify himself, to verify such identification, to determine whether such suspect has in his possession unpurchased merchandise taken from the mercantile establishment and, if so, to recover such merchandise, to inform a peace officer, or to institute criminal proceedings against the suspect. Such detention shall not impose civil or criminal liability upon the peace officer, merchant, employee, or agent so detaining.
(e) Reduction prohibited.--No magisterial district judge shall have the power to reduce any other charge of theft to a charge of retail theft as defined in this section.
"Conceal." To conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.
"Full retail value." The merchant's stated or advertised price of the merchandise.
"Merchandise." Any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof.
"Merchant." An owner or operator of any retail mercantile establishment or any agent, employee, lessee, consignee, officer, director, franchisee or independent contractor of such owner or operator.
"Premises of a retail mercantile establishment." Includes but is not limited to, the retail mercantile establishment, any common use areas in shopping centers and all parking areas set aside by a merchant or on behalf of a merchant for the parking of vehicles for the convenience of the patrons of such retail mercantile establishment.
"Store or other retail mercantile establishment." A place where merchandise is displayed, held, stored or sold or offered to the public for sale.
"Under-ring." To cause the cash register or other sales recording device to reflect less than the full retail value of the merchandise.
(g) Fingerprinting.--Prior to the commencement of trial or entry of plea of a defendant 16 years of age or older accused of the summary offense of retail theft, the issuing authority shall order the defendant to submit within five days of such order for fingerprinting by the municipal police of the jurisdiction in which the offense allegedly was committed or the State Police. Fingerprints so obtained shall be forwarded immediately to the Pennsylvania State Police for determination as to whether or not the defendant previously has been convicted of the offense of retail theft. The results of such determination shall be forwarded to the Police Department obtaining the fingerprints if such department is the prosecutor, or to the issuing authority if the prosecutor is other than a police officer. The issuing authority shall not proceed with the trial or plea in summary cases until in receipt of the determination made by the State Police. The magisterial district judge shall use the information obtained solely for the purpose of grading the offense pursuant to subsection (b).
(Dec. 2, 1976, P.L.1230, No.272, eff. imd.; Apr. 28, 1978, P.L.202, No.53, eff. 2 years; Dec. 20, 1996, P.L.1530, No.200, eff. 60 days; June 25, 1997, P.L.377, No.42, eff. imd.; Oct. 2, 2002, P.L.806, No.116, eff. 60 days; Nov. 30, 2004, P.L.1618, No.207, eff. 60 days; Dec. 23, 2013, P.L.1264, No.131, eff. 60 days)
2013 Amendment. Act 131 amended subsec. (b)(1)(v) and added subsec. (b.1). Section 3 of Act 131 provided that the amendment of subsec. (b)(1)(v) shall apply to offenses committed on or after the effective date of section 3. Section 4 of Act 131 provided that subsec. (b.1) shall apply to sentences imposed on or after the effective date of section 4.
2004 Amendment. Act 207 amended subsecs. (e) and (g). See section 29 of Act 207 in the appendix to this title for special provisions relating to construction of law.
2002 Amendment. Act 116 amended subsec. (b).
1997 Amendment. Act 42 added subsec. (a)(5).
Cross References. Section 3929 is referred to in sections 3903, 3929.2, 3929.3, 9112 of this title; sections 3573, 5552, 8308 of Title 42 (Judiciary and Judicial Procedure); section 6138 of Title 61 (Prisons and Parole).
§ 3929.1. Library theft.
(a) Offense defined.--A person is guilty of library theft if he willfully conceals on his person or among his belongings any library or museum material while still on the premises of a library or willfully and without authority removes any library or museum material from a library with the intention of converting such material to his own use.
(1) Library theft constitutes a:
(i) Summary offense when the offense is a first offense and the value of the material is less than $150.
(ii) Misdemeanor of the second degree when the offense is a second offense and the value of the material is less than $150.
(iii) Misdemeanor of the first degree when the offense is a first or second offense and the value of the material is $150 or more.
(iv) Felony of the third degree when the offense is a third or subsequent offense, regardless of the value of the material.
(2) Amounts involved in library thefts committed pursuant to one scheme or course of conduct, whether from the same library or several libraries, may be aggregated in determining the grade of the offense.
(c) Presumption.--A person who willfully conceals any library or museum material on his person or among his belongings while still on the premises of the library or in the immediate vicinity thereof shall be prima facie presumed to have concealed the library or museum material with the intention of converting such material to his own use.
(d) Detention.--A peace officer, employee or agent of a library who has probable cause to believe that a person has committed library theft may detain such person on the premises of the library or in the immediate vicinity thereof for the following purposes:
(1) To conduct an investigation in a reasonable manner and within a reasonable length of time to determine whether such person has unlawfully concealed or removed any library or museum material.
(2) To inform a peace officer of the detention of the person or surrender that person to the custody of a peace officer.
(e) Exemption from liability.--A peace officer, employee or agent of a library who detains or causes the arrest of any person pursuant to this section shall not be held civilly or criminally liable for false arrest, false imprisonment, unlawful detention, assault, battery, slander, libel or malicious prosecution of the person detained or arrested provided the peace officer, employee or agent of the library had at the time of the detention or arrest probable cause to believe that the person committed library theft.
(f) Public display of law.--A copy of this section shall be publicly displayed in the reading rooms and other public rooms of all libraries in such number and manner as will bring this section to the attention of patrons.
(g) Prior offenses.--Prior to the commencement of trial or entry of plea of a defendant 16 years of age or older accused of the summary offense of library theft, the issuing authority shall notify the Pennsylvania State Police for determination as to whether or not the defendant previously has been convicted of the offense of library theft. The results of such determination shall be forwarded to the police department if the department is the prosecutor, or to the issuing authority if the prosecutor is other than a police officer. The issuing authority shall not proceed with the trial or plea in summary cases until in receipt of the determination made by the State Police. The magisterial district judge shall use the information obtained solely for the purpose of grading the offense pursuant to subsection (b).
(h) Fingerprinting.--Upon conviction the issuing authority shall order the defendant to submit within five days of such order for fingerprinting by the municipal police of the jurisdiction in which the offense allegedly was committed or the State Police.
(i) Definitions.--As used in this section the following words and phrases shall have the meanings given to them in this subsection:
"Conceal." To conceal library or museum material so that, although there may be some notice of its presence, it is not visible through ordinary observation.
"Library." Any public library, any library, archives or manuscript repository of educational, historical or eleemosynary institution, organization or society, any museum and any repository of public records.
"Library or museum material." Any book, plate, picture, photograph, engraving, painting, drawing, map, newspaper, magazine, pamphlet, broadside, manuscript, document, letter, public record, microfilm, sound recording, audiovisual materials in any format, magnetic or other tapes, electronic data processing records, display object, exhibit, work of art, artifact, or other documentary, written or printed materials regardless of physical form or characteristics, belonging to, on loan to, or otherwise in the custody of a library.
"Premises of a library." Includes but is not limited to the library and all parking areas set aside for the parking of vehicles for the convenience of the patrons of such library.
(Apr. 27, 1982, P.L.345, No.95, eff. imd.; Nov. 30, 2004, P.L.1618, No.207, eff. 60 days)
2004 Amendment. Act 207 amended subsec. (g). See section 29 of Act 207 in the appendix to this title for special provisions relating to construction of law.
1982 Amendment. Act 95 added section 3929.1.
Cross References. Section 3929.1 is referred to in section 3929.2 of this title; section 5552 of Title 42 (Judiciary and Judicial Procedure).
§ 3929.2. Unlawful possession of retail or library theft instruments.
(a) Offense.--A person commits a misdemeanor of the first degree if he knowingly possesses, manufactures, sells, offers for sale or distributes in any way a theft detection shielding device or a theft detection deactivation device.
(b) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Conceal." To conceal merchandise or library or museum material so that, although there may be some notice of its presence, it is not visible through ordinary observation.
"Full retail value." The merchant's stated or advertised price of the merchandise.
"Library." Any public library, any library, archives or manuscript repository of an educational, historical or eleemosynary institution, organization or society, any museum and any repository of public records.
"Library or museum material." Any book, plate, picture, photograph, engraving, painting, drawing, map, newspaper, magazine, pamphlet, broadside, manuscript, document, letter, public record, microfilm, sound recording, audiovisual materials in any format, magnetic or other tapes, electronic data processing records, display object, exhibit, work of art, artifact or other documentary, written or printed materials regardless of physical form or characteristics, belonging to, on loan to or otherwise in the custody of a library.
"Merchandise." Any goods, chattels, foodstuffs or wares of any type and description regardless of the value thereof.
"Merchant." An owner or operator of any retail mercantile establishment or any agent, employee, lessee, consignee, officer, director, franchisee or independent contractor of such owner or operator.
"Store or other retail mercantile establishment." A place where merchandise is displayed, held, stored or sold or offered to the public for sale.
"Theft detection deactivation device." Any tool, device, equipment or object designed to destroy, remove, render inoperative or deactivate any inventory control tag, security strip or any other mechanism designed or employed to prevent an offense under section 3929 (relating to retail theft) or 3929.1 (relating to library theft) which is possessed, manufactured, sold or offered for sale with the intention that it be used to:
(1) deprive merchants of the possession, use or benefit of merchandise displayed, held, stored or offered for sale or lease without paying the full retail value thereof; or
(2) convert library or museum material to one's own use.
"Theft detection shielding device." Any laminated, lined or coated bag, purse, container, case, coat or similar device which is intended to be used to take possession of, carry away, transfer, cause to be carried away or transferred or conceal:
(1) any merchandise displayed, held, stored or offered for sale or lease by any store or other retail mercantile establishment with the intent to deprive merchants of the possession, use or benefit of such merchandise without paying the full retail value thereof; or
(2) any library or museum material on his person or among his belongings with the intent to convert such material to his own use.
(Apr. 17, 2002, P.L.246, No.33, eff. 60 days)
2002 Amendment. Act 33 added section 3929.2.
Cross References. Section 3929.2 is referred to in section 5552 of Title 42 (Judiciary and Judicial Procedure).
§ 3929.3. Organized retail theft.
(a) Offense defined.--A person commits organized retail theft if the person organizes, coordinates, controls, supervises, finances or manages any of the activities of an organized retail theft enterprise.
(1) If the retail value of the stolen merchandise in the possession of or under the control of the organized retail theft enterprise is at least $5,000, but not more than $19,999, the offense is a felony of the third degree.
(2) If the retail value of the stolen merchandise in the possession of or under the control of the organized retail theft enterprise is at least $20,000, the offense is a felony of the second degree.
(c) Definitions.--The following words and phrases when used in this section shall have the meanings given to them in this subsection:
"Merchandise." Any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof.
"Merchant." An owner or operator of a retail mercantile establishment or an agent, employee, lessee, consignee, officer, director, franchise or independent contractor of such owner or operator.
"Organized retail theft enterprise." A corporation, partnership or any other type of association, whether or not legally formed, operated for the purpose of engaging in violations of the provisions of section 3925 (relating to receiving stolen property) or 3929 (relating to retail theft).
"Retail value." A merchant's stated or advertised price of merchandise. If merchandise is not traceable to a specific merchant, the stated or advertised price of the merchandise by merchants in the same geographical region.
(June 16, 2010, P.L.212, No.33, eff. 60 days)
2010 Amendment. Act 33 added section 3929.3.
§ 3930. Theft of trade secrets.
(a) Felony of the second degree.--A person is guilty of a felony of the second degree if he:
(1) by force or violence or by putting him in fear takes from the person of another any article representing a trade secret;
(2) willfully and maliciously enters any building or other structure with intent to obtain unlawful possession of, or access to, an article representing a trade secret; or
(3) willfully and maliciously accesses any computer, computer network or computer system, whether in person or electronically, with the intent to obtain unlawful possession of, or access to, an article representing a trade secret.
(b) Felony of the third degree.--A person is guilty of a felony of the third degree if he, with intent to wrongfully deprive of, or withhold from the owner, the control of a trade secret, or with intent to wrongfully appropriate a trade secret for his use, or for the use of another:
(1) unlawfully obtains possession of, or access to, an article representing a trade secret; or
(2) having lawfully obtained possession of an article representing a trade secret, or access thereto, converts such article to his own use or that of another person, while having possession thereof or access thereto makes, or causes to be made, a copy of such article, or exhibits such article to another.
(c) Further disposition irrelevant.--The crime or crimes defined in subsections (a) and (b) of this section shall be deemed complete without regard to the further disposition, return, or intent to return, of the article representing a trade secret.
(d) Defense.--It shall be a complete defense to any prosecution under subsection (b) of this section for the defendant to show that information comprising the trade secret was rightfully known or available to him from a source other than the owner of the trade secret.
(e) Definitions.--As used in this section the following words and phrases shall have the meanings given to them in this subsection:
"Article." Any object, material, device or substance or copy thereof, including any writing, record, recording, drawing, description, sample, specimen, prototype, model, photograph, microorganism, blueprint or map.
"Computer." An electronic, magnetic, optical, hydraulic, organic or other high-speed data processing device or system which performs logic, arithmetic or memory functions and includes all input, output, processing, storage, software or communication facilities which are connected or related to the device in a system or network.
"Computer network." The interconnection of two or more computers through the usage of satellite, microwave, line or other communication medium.
"Computer system." A set of related, connected or unconnected computer equipment, devices and software.
"Copy." Any facsimile, replica, photograph or reproduction of, an article, or any note, drawing, sketch, or description made of, or from an article.
"Representing." Describing, depicting, containing, constituting, reflecting or recording.
"Trade secret." The whole or any portion or phase of any scientific or technical information, design, process, procedure, formula or improvement which is of value and has been specifically identified by the owner as of a confidential character, and which has not been published or otherwise become a matter of general public knowledge. There shall be a rebuttable presumption that scientific or technical information has not been published or otherwise become a matter of general public knowledge when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by him to have access thereto for limited purposes.
(f) Construction.--Nothing in this section shall be construed to interfere with or prohibit terms or conditions in a contract or license related to a computer, a computer network or computer software.
(Oct. 16, 1996, P.L.715, No.128, eff. 60 days; June 25, 1997, P.L.284, No.26, eff. 60 days; Feb. 19, 2004, P.L.143, No.14, eff. 60 days)
2004 Amendment. Section 4 of Act 14 provided that Act 14 shall not apply to misappropriation occurring prior to the effective date of Act 14, including a continuing misappropriation that began prior to the effective date of Act 14 and which continues to occur after the effective date of Act 14.
Cross References. Section 3930 is referred to in section 5552 of Title 42 (Judiciary and Judicial Procedure).
§ 3931. Theft of unpublished dramas and musical compositions.
A person is guilty of theft if he publicly presents for profit, without the consent of the author thereof, any unpublished dramatic play or musical composition.
Cross References. Section 3931 is referred to in section 5552 of Title 42 (Judiciary and Judicial Procedure).
§ 3932. Theft of leased property.
(a) Offense defined.--A person who obtains personal property under an agreement for the lease or rental of the property is guilty of theft if he intentionally deals with the property as his own.
(b) Definition.--As used in this section:
(1) A person "deals with the property as his own" if he sells, secretes, destroys, converts to his own use or otherwise disposes of the property.
(2) A "written demand to return the property is delivered" when it is sent simultaneously by first class mail, evidenced by a certificate of mailing, and by registered or certified mail to the address provided by the lessee.
(c) Presumption.--A person shall be prima facie presumed to have intent if he:
(1) signs the lease or rental agreement with a name other than his own and fails to return the property within the time specified in the agreement; or
(2) fails to return the property to its owner within seven days after a written demand to return the property is delivered.
(d) Exception.--This section shall not apply to secured transactions as defined in Title 13 (relating to commercial code).
(Aug. 8, 1977, P.L.184, No.49, eff. 90 days; Nov. 1, 1979, P.L.255, No.86, eff. Jan. 1, 1980; Oct. 9, 2008, P.L.1403, No.111, eff. imd.)
2008 Amendment. Act 111 amended subsecs. (b) and (c)(2).
Cross References. Section 3932 is referred to in sections 5552, 8310 of Title 42 (Judiciary and Judicial Procedure).
§ 3933. Unlawful use of computer (Repealed).
2002 Repeal. Section 3933 was repealed December 16, 2002 (P.L.1953, No.226), effective in 60 days.
§ 3934. Theft from a motor vehicle.
(a) Offense defined.--A person commits the offense of theft from a motor vehicle if he unlawfully takes or attempts to take possession of, carries away or exercises unlawful control over any movable property of another from a motor vehicle with the intent to deprive him thereof.
(1) An offense under this section is:
(i) a misdemeanor of the third degree if the amount involved was less than $50; or
(ii) a misdemeanor of the second degree if the amount involved was $50 or more but less than $200; or
(iii) a misdemeanor of the first degree if the amount involved was greater than $200.
(2) When the offense is a third or subsequent offense within a five-year period, regardless of the amount involved and regardless of the grading of the prior offenses, an offense under this section is a felony of the third degree.
(Dec. 21, 1998, P.L.1103, No.149, eff. 60 days; June 18, 1999, P.L.67, No.8, eff. 60 days)
§ 3935. Theft of secondary metal (Unconstitutional).
2016 Unconstitutionality. Act 192 of 2014 was declared unconstitutional. Leach v. Commonwealth, 141 A.3d 426 (Pa. 2016). The Legislative Reference Bureau effectuated the 2016 unconstitutionality.
2014 Amendment. Act 192 added section 3935.
§ 3935.1. Theft of secondary metal.
(a) Offense defined.--A person commits the offense of theft of secondary metal if the person unlawfully takes or attempts to take possession of, carries away or exercises unlawful control over any secondary metal with intent to deprive the rightful owner thereof.
(b) Grading.--Except as set forth in subsection (c):
(1) An offense under this section constitutes a misdemeanor of the third degree when the value of the secondary metal unlawfully obtained is less than $50.
(2) When the value of the secondary metal unlawfully obtained is $50 or more but less than $200, the offense constitutes a misdemeanor of the second degree.
(3) When the value of the secondary metal unlawfully obtained is $200 or more but less than $1,000, the offense constitutes a misdemeanor of the first degree.
(4) When the value of the secondary metal unlawfully obtained is $1,000 or more, the offense constitutes a felony of the third degree.
(c) Third or subsequent offenses.--An offense under this section constitutes a felony of the third degree when the offense is a third or subsequent offense, regardless of the value of the secondary metal. For purposes of this subsection, a first and second offense includes a conviction, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for an offense under this section or section 3921 (relating to theft by unlawful taking or disposition).
(d) Definition.--As used in this section, the term "secondary metal" means wire, pipe or cable commonly used by communications, gas, water, wastewater and electrical utilities and railroads and mass transit or commuter rail agencies, copper, aluminum or other metal, or a combination of metals, that is valuable for recycling or reuse as raw material.
(June 22, 2017, P.L.213, No.8, eff. 60 days)
2017 Amendment. Act 8 added section 3935.1.
Jun 16, 2018 · Accordingly, the rulemaking requirements under Pa. O.C. Rule 1.5 for the promulgation and amendment of local procedural rules for orphans' court proceedings were rescinded and replaced. CHAPTER V. RULES GOVERNING SPECIFIC TYPES OF PETITIONS. Rule 5.10. Public Sale of Real Property.Information included at this site has been derived directly from the Pennsylvania Code, the Commonwealth's official publication of rules and regulations and from the Pennsylvania Bulletin, the Commonwealth's official gazette for information and rulemaking.
Keyword: Pennsylvania Code & Bulletin Online, Pennsylvania Code, Pennsylvania Bulletin, Commonwealth of Pennsylvania, Pennsylvania Regulations, Pennsylvania Rulemaking
THE COURTS Title 231—RULES OF CIVIL PROCEDURE PART II. ORPHANS' COURT RULES [ 231 PA. CODE PART II ] Order Rescinding and Replacing Rules 14.1—14.5 and Forms G-01—G-04 and Amending Rules 1.5, 5.10—5.12 and Index to Appendix of the Orphans' Court Rules; No. 770 Supreme Court Rules Doc. [48 Pa.B. 3524][Saturday, June 16, 2018] Order
And Now, this 1st day of June, 2018, upon the recommendation of the Orphans' Court Procedural Rules Committee; the proposal having been published for public comments at 47 Pa.B. 4815 (August 19, 2017) and 47 Pa.B. 5930 (September 23, 2017):
It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:
1) Rules 14.1 through 14.5 and Orphans' Court Forms G-01 through G-04 of the Pennsylvania Orphans' Court Rules are rescinded and replaced; and
2) Rules 1.5, 5.10 through 5.12, and the Index to Appendix of the Pennsylvania Orphans' Court Rules are amended;
in the following form. This Order shall be processed in accordance with Pa.R.J.A. No. 103(b). Forms G-02 through G-05 shall be effective July 1, 2018 for all new report filings as of that date. The remainder of this Order shall be effective June 1, 2019.
(Editor's Note: See 48 Pa.B. 3582 (June 16, 2018) for a related Supreme Court Order.)Annex A TITLE 231. RULES OF CIVIL PROCEDURE PART II. ORPHANS' COURT RULES CHAPTER I. PRELIMINARY RULES Rule 1.5. Local Rules.
(a) All previously promulgated local rules are hereby vacated, effective September 1, 2016, except for those local rules promulgated under Chapter  XIV regarding guardianship of incapacitated persons, Chapter  XV regarding adoptions, and Chapter  XVI regarding proceedings pursuant to [section] Section 3206 of the Abortion Control Act.
(b) All previously promulgated local rules under Chapter XIV regarding guardianship of incapacitated persons are hereby vacated, effective June 1, 2019.
[(b)] (c) The requirements for the promulgation and amendment of local procedural rules for orphans' court proceedings are set forth in Pennsylvania Rule of Judicial Administration 103(d).
[(c)] (d) The local rules applicable to practice in the Civil or Trial Division of the local Court of Common Pleas shall not be applicable in the Orphans' Court Division unless so directed by these Rules or by local rule adopted by the court of the particular judicial district in accordance with Pa.R.J.A. No.  103(d).
Note: Effective August 1, 2016, Pennsylvania Rule of Judicial Administration 103 was amended to consolidate and include all local rulemaking requirements. Accordingly, the rulemaking requirements under Pa. O.C. Rule 1.5 for the promulgation and amendment of local procedural rules for orphans' court proceedings were rescinded and replaced.CHAPTER V. RULES GOVERNING SPECIFIC TYPES OF PETITIONS Rule 5.10. Public Sale of Real Property.
(a) In addition to the requirements provided by the Rules in Chapter III, a petition for the public sale of real property shall set forth the reason for filing the petition, a description, stating the size and location of the property to be sold, and the liens and charges to which it is subject.
(b) Public notice of the sale shall be given as required by law and as may be further required by local rule or as the court may order in a particular matter.
Note: Rule 5.10 is substantively identical to former Rule 12.9. If a person who has been adjudicated incapacitated possesses an interest in the subject real property, see also Rule 14.10.Rule 5.11. Private Sale of Real Property or Options Therefor.
(a) Contents of Petition. In addition to the requirements provided by the Rules in Chapter III, a petition for the private sale or exchange of real property, or for the grant of an option for any such sale or exchange, shall set forth the following:
(1) the information required in a petition for the public sale of real property under Rule 5.10(a); and
(2) the name and address of the proposed purchaser and the terms of the proposed sale, exchange or option, the consideration therefor, and that this consideration is more than can be obtained at public sale.
(b) Exhibits. The petition shall be supported by the affidavits of at least two competent persons setting forth that they have inspected the real property to be sold, exchanged or optioned, that they are not personally interested in the proposed sale, exchange or option, that they are acquainted with the value of real estate in the area, that in their opinion the proposed consideration is more than can be obtained at public sale, and in the case of an exchange, that they are acquainted with the value of real estate in the locality of the property to be received.
Note: Rule 5.11 is substantively identical to former Rule 12.10. If a person who has been adjudicated incapacitated possesses an interest in the subject real property, see also Rule 14.10.Rule 5.12. Mortgage or Lease of Real Property.
In addition to the requirements provided by the Rules in Chapter III, a petition to mortgage or lease real property shall set forth the following:
(a) the information required in a petition for the public sale of real property under Rule 5.10(a), as far as practicable; and
(b) the name of the proposed mortgagee or lessee and the terms of the proposed mortgage or lease.
Note: Rule 5.12 is substantively identical to former Rule 12.11. If a person who has been adjudicated incapacitated possesses an interest in the subject real property, see also Rule 14.10.CHAPTER XIV. GUARDIANSHIPS OF INCAPACITATED PERSONS
(Editor's Note: Rules 14.2—14.5 of the Orphans' Court Rules, which appear in 231 Pa. Code pages 14-1 and 14-2, serial pages (382157) and (382158), are reserved.)Rules 14.2—14.5. (Reserved).
(Editor's Note: Rules 14.1—14.14 are added and printed in regular type to enhance readability.)Rule 14.1. Guardianship Petition Practice and Pleading.
(a) Proceedings for Adjudication of Incapacity and Appointment of a Guardian. The following petition practice and pleading requirements set forth in Chapter III (Petition Practice and Pleading) shall be applicable to proceedings for the adjudication of incapacity and appointment of a guardian:
(1) Rule 3.2 (Headings; Captions);
(2) Rule 3.3 (Contents of All Petitions; General and Specific Averments);
(3) Rule 3.12 (Signing);
(4) Rule 3.13 (Verification); and
(5) Rule 3.14 (Amendment).
(b) Responsive Pleadings to a Petition for Adjudication of Incapacity and Appointment of a Guardian Filed Pursuant to Rule 14.2.
(1) Permitted responsive pleadings to a petition seeking the adjudication of incapacity and appointment of a guardian are limited to those identified in Rule 3.6 (Pleadings Allowed After Petition) and shall be subject to Rules 3.10 (Denials; Effect of Failure to Deny) and 3.11 (Answer with New Matter).
(2) The alleged incapacitated person and any person or institution served pursuant to Rule 14.2(f)(2) may file a responsive pleading.
(3) Any responsive pleading shall be filed with the clerk and served pursuant to Rule 4.3 (Service of Legal Paper Other than Citations or Notices) on all others entitled to file a responsive pleading pursuant to subparagraph (b)(2).
(4) All responsive pleadings shall be filed and served no later than five days prior to the hearing. The failure to file or timely file and serve a responsive pleading does not waive the right to raise an objection at the hearing.
(5) The court shall determine any objections at the adjudicatory hearing.
(c) All Other Petitions for Relief. Unless otherwise provided by Rule in this Chapter, the petition practice and pleading requirements set forth in Chapter III shall be applicable to any proceeding under these Rules other than a petition seeking the adjudication of incapacity and appointment of a guardian. ''Interested party'' as used in Chapter III shall include all those entitled to service pursuant to Rule 14.2(f).
(d) Intervention. A petition to intervene shall set forth the ground on which intervention is sought and a statement of the issue of law or question of fact the petitioner seeks to raise. The petitioner shall attach to the petition a copy of any pleading that the petitioner will file if permitted to intervene. A copy of the petition shall be served pursuant on all those entitled to service pursuant to Rule 14.2(f).
Explanatory Comment: This Rule is intended to specify the provisions and procedures of Chapter III that are applicable to proceedings under Chapter XIV. In proceedings for the adjudication of incapacity and appointment of a guardian, responsive pleadings are permitted as a means of identifying contested legal issues and questions of fact prior to the adjudicatory hearing. However, given the abbreviated time for filing a responsive pleading relative to other proceedings (Compare Pa. O.C. Rule 3.7(a)), the failure to file a responsive pleading should not operate to prelude an issue or objection from being raised and considered at the hearing. Such pleadings should not be filed as a means of delaying the hearing on the merits of the petition.
The practice for other petitions is to follow the requirements of Chapter III. Nothing in this Rule is intended to prevent relief being sought on an expedited basis, provided the petitioner or respondent is able to establish circumstances to the satisfaction of the court warranting disregard of procedural requirements. See Pa. O.C. Rule 1.2(a).Rule 14.2. Petition for Adjudication of Incapacity and Appointment of a Guardian of the Person or Estate of an Incapacitated Person.
(a) Petition Contents. A petition to adjudicate an individual as an incapacitated person and appoint a guardian shall state in plain language:
(1) Name, age, address, and mailing address, if different, of the petitioner and the petitioner's relationship to the alleged incapacitated person;
(2) Name, date of birth, residence, and mailing address, if different, of the alleged incapacitated person;
(3) Names and addresses of the spouse, parents, and presumptive intestate heirs of the alleged incapacitated person and whether they are sui juris or non sui juris;
(4) Name and address of the person or institution providing residential services to the alleged incapacitated person;
(5) Names and addresses of other service providers and nature of services being provided;
(6) Whether there is an executed health care power of attorney or advance health care directive pursuant to Title 20, Chapter 54, and if so, the name and address of the person designated in the writing to act as the agent;
Note: See 20 Pa.C.S. §§ 5421 et seq. for health care power of attorney and advance health care directive (combination of a living will and health care power of attorney).
(7) Whether there is an executed power of attorney pursuant to Title 20, Chapter 56, and if so, the name and address of the person designated in the writing to act as the agent;
Note: See 20 Pa.C.S. §§ 5601 et seq. for power of attorney.
(8) Whether there is any other writing by the alleged incapacitated person pursuant to Title 20, Chapters 54 or 58 authorizing another to act on behalf of the alleged incapacitated person, and if so, the name and address of the person designated;
Note: See 20 Pa.C.S. §§ 5441—5447 for Living Will Act; 20 Pa.C.S. §§ 5451—5465 for Health Care Agents and Representatives Act; 20 Pa.C.S. §§ 5821—5826 for Advance Directive for Mental Health Act; 20 Pa.C.S. §§ 5831—5845 for Mental Health Care Agents Act.
(9) Reason(s) why guardianship is sought, including a description of functional limitations and the physical and mental condition of the alleged incapacitated person;
(10) If not plenary, then specific areas of incapacity over which it is requested that the guardian be assigned powers;
(11) The probability of whether the physical condition and mental condition of the alleged incapacitated person will improve;
(12) Whether there has been a prior incapacity hearing concerning the alleged incapacitated person, and if so, the name of the court, the date of the hearing, and the determination of capacity;
(13) Steps taken to find a less restrictive alternative than a guardianship;
(14) If a guardian of the estate is sought:
(i) the gross value of the estate and net income from all sources, to the extent known; and
(ii) whether there is a prepaid burial account, to the extent known;
(15) Whether the alleged incapacitated person is a veteran of the United States Armed Services, and whether the alleged incapacitated person is receiving benefits from the United States Veterans' Administration on behalf of himself or herself or through a spouse; and
(16) Name and address, if available, of any person that the petitioner proposes should receive notice of the filing of guardianship reports pursuant to Rule 14.8(b), which may include any person identified in paragraphs (a)(3)—(a)(8).
(b) Nomination of Guardian. The petition shall also include:
(1) The name, address, and mailing address, if different, of the proposed guardian whom the petitioner nominates to be appointed guardian and the nominee's relationship, if any, to the alleged incapacitated person. If the proposed guardian is an entity, then the name of the person or persons to have direct responsibility for the alleged incapacitated person and the name of the principal of the entity;
(2) Whether the proposed guardian has any adverse interest to the alleged incapacitated person;
(3) Whether the proposed guardian is available and able to visit or confer with the alleged incapacitated person;
(4) Whether the proposed guardian has completed any guardianship training, including the name of the training program, length of the training, and date of completion;
(5) Whether the proposed guardian has any guardianship certification, the current status of the certification, and any disciplinary action related to the certification;
(6) Whether the proposed guardian is or was a guardian in any other matters and, if so, the number of active matters; and
(7) If the petition nominates a different proposed guardian of the estate from the proposed guardian of the person, then the information required in subparagraphs (b)(1)—(b)(6) as to each nominee.
(c) Exhibits. The following exhibits shall be appended to the petition:
(1) All writings referenced in paragraphs (a)(6)—(a)(8), if available;
(2) The certified response to a Pennsylvania State Police criminal record check, with Social Security Number redacted, for each proposed guardian issued within six months of the filing of the petition;
(i) If any proposed guardian has resided outside the Commonwealth within the previous five-year period and was 18 years of age or older at any time during that period, then the petition shall include a criminal record check obtained from the statewide database, or its equivalent, in each state in which such proposed guardian has resided within the previous five-year period.
(ii) When any proposed guardian is an entity, the person or persons to have direct responsibility for the alleged incapacitated person and the principal of the entity shall comply with the requirements of subparagraph (c)(2).
Note: For information on requesting a criminal record check from the Pennsylvania State Police, see http://www.psp.pa.gov/Pages/Request-a-Criminal-History-Record.aspx.
(3) Any proposed orders as required by Rule 3.4(b); and
(4) Any consent or acknowledgement of a proposed guardian to serve.
(d) Emergency Guardian. A petition seeking the appointment of an emergency guardian shall aver with specificity the facts giving rise to the emergent circumstances and why the failure to make such an appointment will result in irreparable harm to the person or estate of the alleged incapacitated person.
Note: Limitations on emergency guardianships are prescribed by statute. See 20 Pa.C.S. § 5513.
(e) Separate Petitions. Separate petitions shall be filed for each alleged incapacitated person.
(f) Citation with Notice. A citation with notice using the form provided in the Appendix to these Rules shall be attached to and served with the petition and any preliminary order as follows:
(1) By personal service upon the alleged incapacitated person no less than 20 days prior to the hearing. Additionally, the content and terms of the petition shall be explained to the maximum extent possible in language and terms the alleged incapacitated person is most likely to understand.
(2) In a manner permitted by Rule 4.3 no less than 20 days prior to the hearing upon:
(i) All persons sui juris who would be entitled to an intestate share in the estate of the alleged incapacitated person;
(ii) The person or institution providing residential services to the alleged incapacitated person;
(iii) Any person named in paragraphs (a)(6)—(a)(8); and
(iv) Such other entities and persons as the court may direct, including service providers.
Note: For notice to the United States Veterans' Bureau, see 20 Pa.C.S. § 8411.
(3) For a petition seeking the appointment of an emergency guardian, the court may direct the manner of service as emergent circumstances warrant. Thereafter, notice shall be served in accordance with Rule 14.2(f)(2).
Explanatory Comment: Concerning the requirement of a criminal record check set forth in paragraph (c)(2), the Pennsylvania State Police has created the Pennsylvania Access to Criminal History (''PATCH'') System to enable the public to obtain criminal history record checks via Internet request. The certified response from the Pennsylvania State Police criminal history record check need not be notarized to comply with the requirements of this rule. Any response other than ''no record'' may require supplementation at the discretion of the court.Rule 14.3. Alternative Proof of Incapacity: Expert Report in Lieu of In-Person or Deposition Testimony of Expert.
(a) A petitioner may seek to offer into evidence an expert report for the determination of incapacity in lieu of testimony, in-person or by deposition, of an expert using the form provided in the Appendix to these rules. In an emergency guardianship proceeding, an expert report may be offered into evidence if specifically authorized by the court.
(1) If a petitioner seeks to offer an expert report permitted under paragraph (a), the petitioner shall serve a copy of the completed report upon the alleged incapacitated person's counsel and all other counsel of record pursuant to Rule 4.3 or, if unrepresented, upon the alleged incapacitated person, pursuant to Pa.R.C.P. No. 402(a) by a competent adult no later than ten days prior to the hearing on the petition.
(2) If a petitioner seeks to offer an expert report, as permitted under paragraph (a), the petitioner shall serve pursuant to Rule 4.3 a notice of that fact upon those entitled to notice of the petition and hearing no later than ten days prior to the hearing on the petition.
(3) The petitioner shall file a certificate of service with the court as to paragraphs (b)(1) and (b)(2).
(1) Within five days of service of the completed report provided in paragraph (b)(1), the alleged incapacitated person's counsel or, if unrepresented, the alleged incapacitated person, may file with the court and serve upon the petitioner pursuant to Rule 4.3 a demand for the testimony of the expert.
(2) If a demand for testimony is filed and served as provided herein, then the expert report may not be admitted and an expert must provide testimony at the hearing, whether in-person or by deposition.
(d) Unless otherwise demanded pursuant to paragraph (c)(2), in the sole discretion of the court, incapacity may be established through the admission of an expert report prepared in compliance with the form provided in the Appendix to these rules. The expert must be qualified by training and experience in evaluating individuals with incapacities of the type alleged in the petition. The expert must sign, date, and verify the completed expert report.
(e) In the interest of justice, the court may excuse the notice and demand requirements set forth in paragraphs (b) and (c).
Explanatory Comment: This Rule is intended to permit the alleged incapacitated person to exercise the right to cross-examine testimony as to the capacity of the alleged incapacitated person. See 20 Pa.C.S. § 5518.1. Permitting the use of an expert report in compliance with this Rule replaces the requirement of testimony, in-person or by deposition, of an expert. See 20 Pa.C.S. § 5518. ''Deposition,'' as used in this Rule is intended to be a deposition conducted in accordance with the Pennsylvania Rules of Civil Procedure. The Rule is permissive; whether an expert report is admitted in lieu of testimony is in the sole discretion of the court. Nothing in this Rule is intended to preclude the court from requiring testimony from the expert or otherwise requiring supplementation.Rule 14.4. Counsel.
(a) Retention of Counsel. If counsel for the alleged incapacitated person has not been retained, the petitioner shall notify the court in writing at least seven days prior to the adjudicatory hearing that the alleged incapacitated person is unrepresented and also indicate whether the alleged incapacitated person has requested counsel.
(b) Private Counsel. If the alleged incapacitated person has retained private counsel, counsel shall prepare a comprehensive engagement letter for the alleged incapacitated person to sign, setting forth when and how counsel was retained, the scope of counsel's services, whether those services include pursuing any appeal, if necessary, how counsel will bill for legal services and costs and the hourly rate, if applicable, who will be the party considered responsible for payment, whether any retainer is required, and if so, the amount of the retainer. Counsel shall provide a copy of the signed engagement letter to the court upon request.
(c) Appointed Counsel. The court may appoint counsel if deemed appropriate in the particular case. Any such order appointing counsel shall delineate the scope of counsel's services and whether those services include pursuing any appeal, if necessary.
(d) Other Counsel. Counsel for any other party shall enter an appearance in accordance with Rule 1.7(a).
Explanatory Comment: Reasonable counsel fees, when appropriate, should be paid from the estate of the alleged incapacitated person whenever possible. If the alleged incapacitated person is unable to pay for counsel, then the court may order counsel fees and costs to be paid by the county. See 20 Pa.C.S. § 5511(c). Any fee dispute should be resolved in a timely and efficient manner to preserve resources in order to maintain the best possible quality of life for the incapacitated person.Rule 14.5. Waiver or Modification of Bond.
(a) Request. A request for the court to waive or modify a bond requirement for a guardian of the estate may be raised within the petition for adjudication of incapacity or at any other time by petition.
(b) Waiver or Modification. The court may order the waiver or modification of a bond requirement for good cause.
(c) Assurance. If the court waives or modifies a bond requirement, then the court shall consider the necessity and means of periodic demonstration of continued good cause.
Explanatory Comment: Pursuant to 20 Pa.C.S. § 5515, the provisions of Sections 5121—5123 of Title 20 relating to bonding requirements are incorporated by reference into Chapter 55 proceedings. When property is held by the incapacitated person as fiduciary, see 20 Pa.C.S. § 5516. ''Good cause'' may include, but is not limited to, an estate of nominal value, fluctuation in the size of the estate, adequate insurance maintained by the guardian against risk of loss to the estate, the creditworthiness of the guardian, and assets of the guardian relative to the value of the estate.Rule 14.6. Determination of Incapacity and Selection of Guardian.
(a) Determination of Incapacity. The procedure for determining incapacity and for appointment of a guardian shall meet all requirements set forth at 20 Pa.C.S. §§ 5511, 5512, and 5512.1. In addition, the petitioner shall present the citation and proof of service at the hearing.
Note: See In re Peery, 727 A.2d 539 (Pa. 1999) (holding a person does not require a guardian if there is no need for guardianship services).
(b) Selection of Guardian. If guardianship services are needed, then the court shall appoint the person nominated as such in a power of attorney, a health care power of attorney, an advance health care directive, a mental health care declaration, or mental health power of attorney, except for good cause shown or disqualification. Otherwise, the court shall consider the eligibility of one or more persons to serve as guardian in the following order:
(1) Guardian of the Person:
(i) The guardian of the estate;
(ii) The spouse, unless estranged or an action for divorce is pending;
(iii) An adult child;
(iv) A parent;
(v) The nominee of a deceased or living parent of an unmarried alleged incapacitated person;
(vi) An adult sibling;
(vii) An adult grandchild;
(viii) Other adult family member;
(ix) An adult who has knowledge of the alleged incapacitated person's preferences and values, including, but not limited to religious and moral beliefs, and would be able to assess how the alleged incapacitated person would make decisions; or
(x) Other qualified proposed guardian, including a professional guardian.
(2) Guardian of the Estate. When the estate of the incapacitated person consists of minimal assets or where the proposed guardian possesses the skills and experience necessary to manage the finances of the estate:
(i) The guardian of the person;
(ii) The spouse unless estranged or an action for divorce is pending;
(iii) An adult child;
(iv) A parent;
(v) The nominee of a deceased or living parent of an unmarried alleged incapacitated person;
(vi) An adult sibling;
(vii) An adult grandchild;
(viii) Other adult family member; or
(ix) An adult who has knowledge of the alleged incapacitated person's preferences and values, including, but not limited to religious and moral beliefs, and would be able to assess how the alleged incapacitated person would make decisions.
Where no individual listed in subparagraphs (i)—(ix) of paragraph (b)(2) possesses the skills and experience necessary to manage the finances of the estate, the guardian of the estate may be any qualified proposed guardian, including a professional guardian or corporate fiduciary.
Explanatory Comment: If a principal nominates a guardian pursuant to a power of attorney, a health care power of attorney, an advance health care directive, which is a combination of a living will and a health care power of attorney, a mental health care declaration, or mental health power of attorney, then court must appoint that person as guardian except for good cause or disqualification. See 20 Pa.C.S. § 5604(c)(2) (power of attorney); 20 Pa.C.S. § 5460(b) (health care power of attorney); 20 Pa.C.S. § 5422 (defining ''advance health care directive''); 20 Pa.C.S. § 5823 (mental health declaration); 20 Pa.C.S. § 5841(c) (mental health power of attorney); see also 20 Pa.C.S. § 5511(f) (who may be appointed guardian).Rule 14.7. Order and Certificate.
(a) Order Adjudicating Incapacity and Appointing Guardian.
(1) An order adjudicating incapacity and appointing a guardian shall address:
(i) the type of guardianship being ordered and any limits, if applicable;
(ii) the continued effectiveness of any previously executed powers of attorney or health care powers of attorney and the authority of such agent to act under the document;
(iii) the necessity of filing reports pursuant to Rule 14.8(a); and
(iv) the person or persons entitled to receive notice of the filing of such reports, pursuant to Rule 14.8(b).
(2) An order adjudicating incapacity and appointing a guardian shall contain a provision substantially in the following form:
(b) Order Adjudicating Incapacity and Appointing Guardian of Estate.
(1) In addition to the requirements set forth in paragraph (a)(1), an order adjudicating incapacity and appointing a guardian of the estate shall address:
(i) whether a bond is required and when the bond is to be filed; and
(ii) whether the guardian can spend principal without prior court approval.
(2) In addition to the requirement set forth in paragraph (a)(2), an order adjudicating incapacity and appointing a guardian of the estate shall contain a provision substantially in the following form:
(c) Certificate of Guardianship of Estate. Upon the request of the guardian of the estate, the clerk shall issue a certificate substantially in the following form:(Caption)
I CERTIFY that on ______ , after giving full consideration to the factors set forth in Chapter 55 of the Probate, Estates, and Fiduciaries Code, 20 Pa.C.S. §§ 5501 et seq., in the above-captioned matter, the Court adjudged ______ an incapacitated person and appointed ______ as plenary guardian of the estate.
FURTHER, I CERTIFY the Court, inter alia, ordered that:
All financial institutions, including without limitation, banks, savings and loans, credit unions, and brokerages shall grant to the guardian of [incapacitated person]'s estate access to any and all assets, records, and accounts maintained for the benefit of [incapacitated person], and the guardian of [incapacitated person]'s estate shall be entitled to transfer, retitle, withdraw, or otherwise exercise dominion and control over any and all said assets, records, and accounts. The failure of any financial institution to honor this order may lead to contempt proceedings and the imposition of sanctions.
Witness my hand and seal of said Court
this __ day of _____ , __ .
CLERK OF ORPHANS' COURT
Explanatory Comment: The requirements of paragraph (a) are intended to apply to all guardianship orders. The items addressed and contained in the order, as set forth in paragraphs (a) and (b), are not exhaustive. The court may fashion a guardianship of a person order to inform health care providers of the guardian's authority, including the authority to give informed consent to proposed treatment, to share information, and to make decisions for the incapacitated person. See also In re DLH, 2 A.3d 505 (Pa. 2010) (discussing whether guardian has authority concerning life-preserving care); 20 Pa.C.S. § 5460(a) (requiring the court to determine the extent of agent's authority under a health care power of attorney); 20 Pa.C.S. § 5604(c)(3) (requiring the court to determine the extent of agent's authority under a durable power of attorney).Rule 14.8. Guardianship Reporting, Monitoring, Review, and Compliance.
(a) Reporting. A guardian shall file the following reports with the clerk:
(1) An inventory by the guardian of the estate within 90 days of such guardian's appointment;
(2) An annual report by the guardian of the estate of an incapacitated person one year after appointment and annually thereafter;
(3) An annual report by the guardian of the person one year after appointment and annually thereafter;
(4) A final report by the guardian of the person and the guardian of the estate within 60 days of the death of the incapacitated person, an adjudication of capacity, a change of guardian, or the expiration of an order of limited duration; and
(5) A final report from the guardian of the person and the guardian of the estate upon receipt of the provisional order from another state's court accepting transfer of a guardianship.
(b) Notice of Filing. If, pursuant to Rule 14.7(a)(1)(iv), the order appointing the guardian identifies the person or persons entitled to receive notice of the filing of any report set forth in paragraph (a), the guardian shall serve a notice of filing within ten days after filing a report using the form provided in the Appendix to these Rules. Service shall be in accordance with Rule 4.3.
(c) Design of Forms. The Court Administrator of Pennsylvania, in consultation with the Orphans' Court Procedural Rules Committee and the Advisory Council on Elder Justice in the Courts, shall design and publish forms necessary for the reporting requirements set forth in paragraph (a).
(d) Monitoring. The clerk or the court's designee shall monitor the guardianship docket to confirm the guardian's compliance with the reporting requirements set forth in paragraph (a).
(e) Review. The court or its designee shall review the filed reports.
(f) Compliance. To ensure compliance with these reporting requirements:
(1) If any report is deemed incomplete or is more than 20 days delinquent, then the clerk or the court's designee shall serve notice on the guardian directing compliance within 20 days, with a copy of the notice sent to the court and the guardian's counsel, if represented.
(2) If the guardian fails to comply with the reporting requirements within 20 days of service of the notice, then the clerk or the court's designee shall file and transmit a notice of deficiency to the adjudicating judge and serve a notice of deficiency on those persons named in the court's order pursuant to Rule 14.7(a)(1)(iv) as being entitled to receive a notice of filing.
(3) The court may thereafter take such enforcement procedures as are necessary to ensure compliance.
Explanatory Comment: The reporting forms are available at http://www.pacourts.us/forms/for-the-public/orphans-court-forms. This Rule is silent as to the manner of proceeding when reports are deficient or warrant further investigation, or when the guardian is recalcitrant after being given notice by the clerk or the court's designee. In its discretion, the court may order further documentation, conduct a review hearing, or take further action as may be deemed necessary, including, but not limited to, removal of the guardian or contempt proceedings.Rule 14.9. Review Hearing.
(a) Initiation. A review hearing may be requested by petition or ordered by the court.
(b) Petition. A petition for a review hearing shall set forth:
(1) the name, age, address, and mailing address, if different, of the petitioner and the petitioner's relationship to the incapacitated person;
(2) the date of the adjudication of incapacity;
(3) the names and addresses of all guardians;
(4) if the incapacitated person has been a patient in a mental health facility, the name of such facility, the date of admission, and the date of discharge;
(5) the present address of the incapacitated person, and the name of the person with whom the incapacitated person is living;
(6) the names and addresses of the presumptive intestate heirs of the incapacitated person and whether they are sui juris or non sui juris; and
(7) an averment that:
(i) there has been significant change in the incapacitated person's capacity and the nature of that change;
(ii) there has been a change in the need for guardianship services and the nature of that change; or
(iii) the guardian has failed to perform duties in accordance with the law or act in the best interest of the incapacitated person, and details as to the duties that the guardian has failed to perform or has performed but are allegedly not in the best interests of the incapacitated person.
(c) Service. The petition shall be served in accordance with Rule 4.3 upon the incapacitated person and those entitled to notice pursuant to Rule 14.2(f)(2).
(d) Hearing. The review hearing shall be conducted promptly after the filing of the petition with notice of the hearing served upon those served with the petition pursuant to paragraph (c).
Explanatory Comment: Nothing in this Rule is intended to preclude the court from scheduling a review hearing upon its own initiative or in the order adjudicating incapacity and appointing a guardian. For the court's disposition of a petition for a review hearing and evidentiary burden of proof, see 20 Pa.C.S. § 5512.2.Rule 14.10. Proceedings Relating to Real Property.
(a) Applicable Rules. A petition for the public or private sale, exchange, lease, or mortgage of real property of an incapacitated person or the grant of an option for the sale, exchange, or lease of the same shall conform as far as practicable to the requirements of these Rules for personal representatives, trustees, and guardians of minors in a transaction of similar type.
(b) Objection. The guardian shall include in the petition an averment as to whether the guardian knows or has reason to know of any objection of the incapacitated person to the proposed transaction, the nature and circumstances of any such objection, and whether expressed before or after the adjudication of incapacity.
Note: See Pa. O.C. Rules 5.10, 5.11, and 5.12.Rule 14.11. Transfer of Guardianship of the Person to Another State.
(a) Petition. A petition filed by a guardian appointed in Pennsylvania to transfer the guardianship of the person to another state must plead sufficient facts to demonstrate:
(1) the incapacitated person is physically present in or is reasonably expected to move permanently to the other state;
(2) plans for care and services for the incapacitated person in the other state are reasonable and sufficient;
(3) the court to which the guardianship will be transferred; and
(4) the guardianship will likely be accepted by the other state's court.
(b) Service. The guardian shall serve a copy of the petition in accordance with Rule 4.3 upon the incapacitated person and those entitled to service pursuant to Rule 14.2(f)(2).
(c) Objections. Any person entitled to service of the petition may file an answer with the clerk raising objections alleging that the transfer would be contrary to the interests of the incapacitated person.
(d) Hearing. If needed, the court shall conduct an evidentiary hearing on the petition.
(e) Orders. Upon finding that the allegations contained in the petition have been substantiated and the objections, if any, have not been substantiated, the court shall:
(1) issue an order provisionally granting the petition to transfer the guardianship and directing the guardian to petition for acceptance of the guardianship in the other state; and
(2) issue a final order confirming the transfer and relinquishing jurisdiction upon receipt of the provisional order from the other state's court accepting the transfer and the filing of the final report of the guardian.
Explanatory Comment: See Subchapter C of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, 20 Pa.C.S. §§ 5921—5922. This petition may also include a request to transfer the guardianship of the estate to another state as provided in Rule 14.12. The likelihood that the guardianship may be accepted by the other state's court may be established by evidence of the state having procedures similar to Rule 14.13.Rule 14.12. Transfer of Guardianship of the Estate to Another State.
(a) Petition. A petition filed by a guardian appointed in Pennsylvania to transfer the guardianship of the estate must plead sufficient facts to demonstrate:
(1) the incapacitated person is:
(i) physically present in the other state;
(ii) reasonably expected to move permanently to the other state; or
(iii) significantly connected to the other state.
(2) adequate arrangements will be made for the management of the incapacitated person's estate;
(3) the court to which the guardianship will be transferred; and
(4) the guardianship will likely be accepted by the other state's court.
(b) Service. The guardian shall serve a copy of the petition in accordance with Rule 4.3 upon the incapacitated person and those entitled to service pursuant to Rule 14.2(f)(2).
(c) Objections. Any person entitled to service of the petition may file an answer with the clerk raising objections alleging that the transfer would be contrary to the interests of the incapacitated person.
(d) Hearing. If needed, the court shall conduct an evidentiary hearing on the petition.
(e) Orders. Upon finding that the allegations contained in the petition have been substantiated and the objections, if any, have not been substantiated, the court shall:
(1) issue an order provisionally granting the petition to transfer the guardianship and directing the guardian to petition for acceptance of the guardianship in the other state; and
(2) issue a final order confirming the transfer and relinquishing jurisdiction upon receipt of the provisional order from the other state's court accepting the transfer and the filing of the final report of the guardian.
Explanatory Comment: See Subchapter C of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, 20 Pa.C.S. §§ 5921—5922. For factors used to determine the significance of the incapacitated person's connection with the other state, see 20 Pa.C.S. § 5911(b). This petition may also include a request to transfer the guardianship of the person to another state as provided in Rule 14.11. The likelihood that the guardianship may be accepted by the other state's court may be established by evidence of the state having procedures similar to Rule 14.13.Rule 14.13. Acceptance of a Guardianship Transferred from Another State.
(a) A petition to confirm the transfer of a guardianship from another state to Pennsylvania shall:
(1) plead sufficient facts to demonstrate:
(i) the eligibility of the guardian for appointment in Pennsylvania;
(ii) the proceeding in the other state approving the transfer was conducted in a manner similar to Rules 14.11 or 14.12 (concerning transfer of guardianship);
(1) include a certified copy of the other state's provisional order approving the transfer; and
(2) include a certified copy of the petition and order determining initial incapacity in the other state.
(b) Service. The guardian shall serve a copy of the petition in the manner and upon the incapacitated person and those entitled to service pursuant to Rule 14.2(f).
(c) Objections. Any person entitled to notice of the petition may file an answer with the clerk raising objections alleging that the transfer would be contrary to the interests of the incapacitated person.
(d) Hearing. If needed, the court shall conduct an evidentiary hearing on the petition.
(e) Orders. Upon finding that the allegations contained in the petition have been substantiated and the objections, if any, have not been substantiated, the court shall:
(1) issue an order provisionally granting the petition to confirm transfer of the guardianship; and
(2) upon receiving a final order from the court transferring the guardianship, the court shall issue a final order accepting the guardianship, appointing the guardian appointed previously by the court of the other state as the guardian in Pennsylvania, and directing the guardian to comply with the reporting requirements of Rule 14.8.
Explanatory Comment: See Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, 20 Pa.C.S. § 5922(f) (court's consideration of a modification of guardianship).Rule 14.14. Forms.
The following forms located in the Appendix shall be used exclusively:
(a) Important Notice—Citation with Notice (G-01);
(b) Report of Guardian of the Estate (G-02);
(c) Report of Guardian of the Person (G-03);
(d) Guardian's Inventory for a Minor (G-04);
(e) Guardian's Inventory for an Incapacitated Person (G-05);
(f) Guardianship of Incapacitated Person: Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. Rule 2.4 (OC-03);
(g) Guardianship of Minor: Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. Rule 2.4 (OC-04);
(h) Expert Report (G-06); and
(i) Notice of Filing (G-07).
Explanatory Comment: In accordance with Rule 1.8, these forms must be used exclusively and cannot be replaced or supplanted by a local form.INDEX TO APPENDIX ORPHANS' COURT AND REGISTER OF WILLS FORMS ADOPTED BY SUPREME COURT PURSUANT TO Pa. O.C. Rule 1.8 Available as Fill-in Forms on Website of Administrative Office of Pennsylvania Courts [http://www.pacourts.us/Forms/OrphansCourtForms.htm] http://www.pacourts.us/forms/for-the-public/orphans-court-forms Orphans' Court and Administration Forms
B. Guardianship Forms
1. Important Notice—Citation with Notice (Pa. O.C. Rule [14.5] 14.2)
2. [Annual Report—Guardian of Estate] Report of Guardian of the Estate
3. [Annual Report—Guardian of Person] Report of Guardian of the Person
4. Guardian's Inventory for a Minor
5. Guardian's Inventory for an Incapacitated PersonG-05
[5.] 6. Guardianship of Incapacitated Person: Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. Rule 2.4
[6.] 7. Guardianship of Minor: Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. Rule 2.4
8. Expert Report G-06
9. Notice of Filing G-07
*Form OC-3 is not reprinted here and is located under Audit and Administration Forms at No. 3.
**Form OC-4 is not reprinted here and is located under Audit and Administration Forms at No. 4.ORPHANS' COURT PROCEDURAL RULES COMMITTEE REPORT Amendment of Pa. O.C. Rules 1.5 & 5.10—5.12; Rescission of Pa. O.C. Rules 14.1—14.5 and Orphans' Court Forms G-01 through G-04; Adoption of New Pa. O.C. Rules 14.1 through 14.14 and Orphans' Court Forms G-01—G-07; and Amendment of the Index to the Appendix
On June 1, 2018, the Supreme Court of Pennsylvania adopted a comprehensive rewrite of the Pennsylvania Orphans' Court Rules related to guardianship proceedings pursuant to Title 20, Chapters 55 and 59. The rules were previously published for comment at 47 Pa.B. 5930 (September 23, 2017); 47 Pa.B. 4815 (August 19, 2017); and 46 Pa.B. 7934 (December 17, 2016).
Contained within this Report is the Orphans' Court Procedural Rules Committee's commentary related to the new rules. Please note that the Court does not adopt the Committee's commentary.
Rule 1.5 Local Rules
Through amendment of Rule 1.5 and operation of Order, No. 771 Supreme Court Rules Docket (June 1, 2018), all previously promulgated local rules concerning guardianship proceedings are vacated, effective June 1, 2019. For a local guardianship rule of procedure to be effective on June 1, 2019, it must be deemed necessary by the judicial district in light of the new statewide rules and be submitted to the Orphans' Court Procedural Rules Committee no later than December 1, 2018. This deadline is calculated to afford the Committee sufficient time to review the local rules, respond to the judicial district, and permit publication in the Pennsylvania Bulletin pursuant to Pa.R.J.A. No. 103(d). Submissions after December 1, 2018 will be accepted; however, the Committee may not be able to give late submissions sufficient priority to clear the review process before June 1, 2019. The effective date of the new local rules and new Chapter IV rules should coincide, i.e., June 1, 2019.
Rules 5.10-5.12 Transactions Related to Real Property
Cross-references to Rule 14.10 were added to the Notes when the transaction involves the real property of an incapacitated person.
Rule 14.1 Guardianship Petition Practice and Pleading
A number of comments inquired as to the extent that the requirements in Chapter III of the Pennsylvania Orphans' Court Rules concerning petition practice and pleading requirements would apply to guardianship proceedings. Rule 14.1 was crafted to place different requirements on petitions for the adjudication of incapacity and appointment of a guardian on one hand and all other petitions on the other hand. Paragraph (a) incorporated by reference and applied specific aspects of Chapter III to petitions for adjudication and appointment. Paragraph (b) provided for the filing of responsive pleadings in these proceedings, but does so on a limited basis and subject to a shorter time frame than Chapter III. While the Committee did not believe that such pleadings were going to be used frequently, a procedural mechanism should exist for contested guardianship proceedings.
It should be noted that responsive pleadings under paragraph (b) are permissive and not required—there are no ''default judgments'' with respect to the adjudication of incapacity. Further, the paragraph was not intended to preclude the judge from hearing objections first raised at the adjudicatory hearing. Finally, the judge was to decide the objections at the adjudicatory hearing rather than delaying that hearing with another to determine objections.
For all other petitions, paragraph (c) operates to apply the Chapter III requirements to those pleadings, subject to the modification of ''interested party.'' The Committee recognizes that Chapter III imposes more formal requirements on what were often informal proceedings. However, the provisions of Chapter III were designed to afford due process to all involved, and the Committee believes that petition practice in guardianship matters required no less protection. As observed in the Explanatory Comment, the requirements were not intended to preclude a petitioner from seeking relief on an emergency or expedited basis when circumstances warrant departure from strict adherence to the Chapter III requirements.
Paragraph (d) was intended to provide a procedure for a person to seek permission to intervene in a proceeding. This mechanism was crafted as recognition that those entitled to service pursuant to Rule 14.2(f) may not include all potentially aggrieved parties, e.g., business partner, fiance, best friend.
Rule 14.2 Petition for Adjudication of Incapacity and Appointment of a Guardian of the Person or Estate of an Incapacitated Person
The required content of a petition set forth in the rule was intended to include those requisites set forth in 20 Pa.C.S. § 5511(c) as well as information to assist the court in determining capacity, the need for a guardian, the appointment of a guardian for the estate and/or the person, and the scope of a guardianship, as the case may be. An additional requirement was the identification of any person or persons who are to receive notice of the filing of reports.
Concerning persons who should be identified in and served with the petition, the Committee studied the interplay of Chapters 54, 55, 56, and 58 of Title 20. When a person has nominated a guardian in an instrument or there is a surrogate decision maker, it opens a number of residual issues. First, if a principal nominates a guardian pursuant to a power of attorney, a health care power of attorney, an advance health care directive (which is a combination of a living will and a health care power of attorney), a mental health care declaration, or mental health power of attorney, then the court must appoint that person as guardian except for good cause or disqualification. See 20 Pa.C.S. § 5604(c)(2) (power of attorney); 20 Pa.C.S. § 5460(b) (health care power of attorney); 20 Pa.C.S. § 5422 (defining ''advance health care directive''); 20 Pa.C.S. § 5823 (mental health declaration); 20 Pa.C.S. § 5841(c) (mental health power of attorney); see also Pa. O.C. Rule 14.6(b). Moreover, the court must determine the extent to which an agent's authority to act remains in effect under a power of attorney or a health care power of attorney. See 20 Pa.C.S. § 5604(c)(3); 20 Pa.C.S. § 5460(a); see also Pa. O.C. Rule 14.7(a)(1)(ii). Notably, if a principal who has executed a mental health power of attorney is later adjudicated an incapacitated person, the mental health power of attorney shall remain in effect. 20 Pa.C.S. § 5841(b)(1).
Second, in addition to the above-agents, there may be surrogate decision makers pursuant to a living will or by operation of law. See 20 Pa.C.S. § 5447 (a living will can contain a designation of a health care agent if the principal is incompetent and has an end-stage medical condition or is permanently unconscious); 20 Pa.C.S. § 5461 (a health care representative can make decisions for an incompetent person if the person does not have a health care power of attorney or a guardian has not been appointed for the person). These surrogate decision makers have an interest in the proceeding because the powers they currently exercise will be affected by a guardianship.
Therefore, the rules require that all these agents should be first identified in the petition pursuant to Rule 14.2(a)(6)—(a)(8). Rather than reference the myriad statutes by individual citation, the rule text references the applicable Chapter in Title 20. To the extent that writings exist related to the agent's authority, the writings are to be appended to the petition pursuant to Rule 14.2(c)(1). Further, these agents are to be served with the petition pursuant to Rule 14.2(f)(2)(iii).
Rule 14.2(a)(16) is intended to identify in the petition who should receive notice of the filing of the inventory and reports. This is a new statewide procedure. The court's order adjudicating incapacity and appointing a guardian is required to contain those entitled to receive notice of the filing of those reports. See Pa. O.C. Rule 14.7(a)(1)(iv). The notice of filing is required to be served on those entitled to receive notice after a report is filed. See Pa. O.C. Rule 14.8(b). The form of the notice of filing is set forth in Form G-07. A person entitled to receive the notice of filing may then access and view the report filed by presenting the notice to the clerk of the orphans' court.
Paragraph (b)(1) requires the petitioner to identify those individuals who will have direct responsibility for the alleged incapacitated person if the proposed guardian is an entity. This paragraph also requires the principal of the entity to be identified. Designating those persons having direct responsibility may be challenging at this stage in a guardianship proceeding, but doing so is necessary for the purpose of the criminal record check requirement. For those entities using a team approach or rotating assignments, identification of all likely individuals will be necessary.
Paragraph (b)(4) requires the petition to include whether the proposed guardian has completed any guardianship training. Paragraph (b)(5) requires disclosure of whether the proposed guardian is certified and any disciplinary history related to the certification. Paragraph (b)(6) requires the petitioner to include the current caseload for the guardian. Such information will assist the judge in the guardian selection process.
Rule 14.2(f)(2)(i) was revised post-publication to specifically limit service to only sui juris intestate heirs rather than both sui juris and non-sui juris heirs. This aligns the rule more closely with the statute. See 20 Pa.C.S. § 5511(a).
Rule 14.3 Alternative Proof of Incapacity: Expert Report in Lieu of In-Person or Deposition Testimony of Expert
In 2015, the Committee published for comment the Task Force's proposed form entitled ''Deposition by Written Interrogatories of Physician or Licensed Psychologist'' as part of a larger package of forms. See 45 Pa.B. 1070 (March 7, 2015). In 2016, the Committee published proposed new Rule 14.6 and a revised form for comment. See 46 Pa.B. 2306 (May 7, 2016). Retitled ''written deposition,'' the proposed form was intended to be completed by the evaluator and reflect the evaluator's assessment of the capacity of the alleged incapacitated person. See also 20 Pa.C.S. § 5518. After considering additional feedback, the Committee further refined the report and form, which were republished for comment. See 47 Pa.B. 5930 (September 23, 2017).
Rule 14.4 Counsel
This rule was crafted to establish the scope of counsel's services before commencement of the proceedings in order to avoid confusion about the role of counsel. While the rule requires private counsel to set forth information regarding fees in the engagement letter, the reasonableness of all fees incurred on behalf of the alleged incapacitated person, whether attributed to private counsel or appointed counsel, are subject to court review.
Paragraph (a) incorporates the statutory requirement that the petitioner inform the court seven days prior to the adjudicatory hearing whether the alleged incapacitated person has counsel. See 20 Pa.C.S. § 5511(a). Relatedly, the paragraph contains a requirement that the petitioner notify the court if the alleged incapacitated person requested counsel and one has not yet been retained.
Paragraphs (b)—(d) are intended to memorialize the scope of counsel's services before commencement of the proceedings in order to avoid confusion about the role of counsel. Paragraph (b) also requires private counsel to set forth information regarding fees in the engagement letter.
Rule 14.5 Waiver or Modification of Bond
This rule is not intended to encourage waiver or modification of bonds. Rather, it is intended to establish a procedure and standard for waiver and modification. Paragraph (b) permits the waiver or modification for good cause. Examples of ''good cause'' are contained in the Explanatory Comment. Paragraph (c) requires the court to consider the necessity and means of how ''good cause'' can be demonstrated in the future to provide assurance that ''good cause'' continues to exist.
Rule 14.6 Determination of Incapacity and Selection of Guardian
In paragraph (b), the Committee opted to incorporate by reference the statutory procedures for determining incapacity and appointing a guardian. Within 20 Pa.C.S. § 5511 there are other provisions that also could be replicated within the rules, such as closed hearings, jury trial, and the authority of the court to order an independent evaluation. Likewise, 20 Pa.C.S. § 5512.1 sets forth required findings to be made by the court regarding incapacity and the need for a guardianship. Yet, the Committee believed that the rules and Chapter 55 of Title 20 should be read in pari materia with each supplementing the other as to procedure. The Note to paragraph (a) contains reference to In re Peery, 727 A.2d 539 (Pa. 1999), as a reminder that a guardian is not required if the person, albeit lacking capacity, does not need guardianship services.
Rule 14.7 Order and Certificate
Rule 14.7 was created to set forth topics that all orders must address, see paragraph (a)(1), and language that all orders must contain, see paragraph (a)(2); 20 Pa.C.S. § 5512.1(h) (''At the conclusion of a proceeding in which the person has been adjudicated incapacitated, the court shall assure that the person is informed of his right to appeal and to petition to modify or terminate the guardianship.''). Regarding guardianships of the estate, paragraph (b)(1) requires orders to address bonding requirements and the authority of the guardian to spend principal without prior court approval. Paragraph (b)(2) requires all orders for guardian of the estate to contain language substantially in the form provided. The model language in paragraph (b)(2) is intended to address a recurring issue with financial institutions not readily permitting a guardian to have access to the incapacitated person's accounts or allowing the estate guardian to conduct transactions on behalf of the incapacitated person. Given that a financial institution may have branches in multiple counties, the Committee believed that similar model language should be used in every order to provide for consistent recognition and uniform effect.
Rule 14.8 Guardianship Reporting, Monitoring, Review, and Compliance
The requirement and timing of guardian reports and inventory required by statutes are reflected in Rule 14.8(a). See 20 Pa.C.S. §§ 5142, 5521(b), (c), 5921(f)(2). The forms to be used for reporting and inventory are set forth in the Appendix. Paragraph (a)(4) requires the filing of a final report when an order of limited duration has expired, which is intended to capture guardianships of finite duration pursuant to 20 Pa.C.S. § 5512.1(a)(5) (requiring the court to specify duration of guardianship), rather than emergency guardianships that terminate as a matter of statute pursuant to 20 Pa.C.S. § 5513.
When a guardian has filed a reporting form or inventory form with the clerk, Rule 14.8(b) requires the guardian to serve notice of the filing on all persons entitled to receive such notice, as identified in the court's order. The notice of filing (Form G-07) instructs the recipient that a copy of the notice along with proper identification will be required to access and view the filed documents.
The Committee considered a request to include a reference to the ''Guardianship Tracking System'' (GTS) in Rule 14.8. The GTS is an online system being developed by the Administrative Office of Pennsylvania Courts that will provide the means for guardians to file reports and update information online as opposed to the current paper process. The GTS is intended to standardize reporting, prevent mistakes, and ensure complete reports. It will store and carryover information from year-to-year, which is intended to facilitate the filing of subsequent reports. Further, the GTS can track information and flag accounts when inputted data falls outside of established parameters, which is intended to enhance guardianship monitoring. After the GTS is implemented on a statewide basis, then the rules will be amended to reflect to the availability of the system.
Rule 14.9 Review Hearing
Rule 14.9 permits the court to order a review hearing sua sponte or upon petition. When a review request is initiated by petition, the petitioner must comply with the requirements of paragraphs (b) and (c) relating to petition contents and service. Notice of the hearing, whether ordered sua sponte or prompted by petition, should be served on those who are or would be entitled to service of the guardianship petition.
Rule 14.10 Proceedings Relating to Real Property
Rule 14.10(a) is virtually identical to previous Pa. O.C. Rule 14.4. ''Real estate'' was replaced with ''real property'' to make the Rule consistent with Rules 5.10—5.12. Given the uniqueness, irreplaceability, and reliance that may be placed upon a sale, exchange, lease, or option of same, as well as a mortgage, of real property, paragraph (b) provides the means of bringing potential objections to the court's attention at the time of the petition.
Rule 14.11 Transfer of Guardianship of the Person to Another State
In 2012, the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, 20 Pa.C.S. §§ 5901—5992, was enacted to govern the interstate judicial coordination of guardianships. Within the Act, Subchapter C provides for the transfer of guardianships from and to Pennsylvania. Rule 14.11 is intended to establish procedural rules implementing 20 Pa.C.S. § 5921 as it relates to guardianships of the person. Rule 14.12 is intended to establish similar rules for guardianships of the estate.
As indicated in the Explanatory Comment, a petition under Rule 14.11 relating to the guardianship of the person may also include a transfer request as provided in Rule 14.12 relating to the guardianship of the estate. This ability to present both matters in one petition was intended to eliminate the need to file multiple petitions. However, this ability will not relieve the petitioner of pleading all the necessary facts required of each specific petition.
Paragraph (a)(4) contains ''likely'' with the intention that likelihood may be established by evidence of the other state having procedures similar to Rule 14.13 (Acceptance of a Guardianship Transferred from Another State). Per the National Conference of Commissioners on Uniform State Laws' website, as of May 24, 2018, Florida, Texas, Michigan, and Kansas were the only states that had not enacted legislation based upon the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.
Rule 14.12 Transfer of Guardianship of the Estate to Another State
See the Committee's remarks regarding Rule 14.11.
Rule 14.13 Acceptance of a Guardianship Transferred from Another State
Rule 14.13 is intended to provide a procedure for the transfer of a guardianship from another state to Pennsylvania. This rule is intended to implement 20 Pa.C.S. § 5922. Paragraph (a)(3) was added to require the petition and order determining the initial incapacity be attached. The Committee believed this was important information for the receiving court to possess. Further, this information might be helpful in determining whether a modification hearing may be necessary. Consistent with the reporting requirements applicable to guardianships commenced within Pennsylvania, a guardian of the transferred estate would be required to file an inventory within 90 days of the final order.
Rule 14.14 Forms
There are nine statewide forms associated with this Chapter, two of which (OC-03 and OC-04) are also associated with Pa. O.C. Rule 2.4 in Chapter II. Rule 14.14(f) and (g) are intended to incorporate those forms by reference. Likewise, Forms OC-03 and OC-04 are not replicated within the Appendix to Chapter XIV; rather, they are incorporated by reference. Those forms (OC-03 and OC-04), revised and re-promulgated on September 1, 2016, are not being revised, rescinded, or replaced by this recommendation.
The Citation with Notice form is largely the same content as the current form with now 14-point font to address the requirement of ''large type.'' See 20 Pa.C.S. § 5511(a). As with all forms, the ''footer date'' on the form will reflect the effective date as established by Supreme Court order.
The Report of Guardian of the Estate (G-02), the Report of Guardian of the Person (G-03), and the Guardian's Inventory for an Incapacitated Person (G-05) forms were previously published for comment at 45 Pa.B. 1070 (March 7, 2015). The forms were republished at 46 Pa.B. 7934 (December 17, 2016).
Presently, the ''inventory form'' is a dual use form—it is used for guardianships of incapacitated persons and for guardianships of minors, 20 Pa.C.S. § 5142 (requiring filing of an inventory for minors). The new ''inventory form'' was designed specifically for guardianships of incapacitated persons under Chapter 55 and the Guardianship Tracking System. To accommodate the continued use an ''inventory form'' for guardianships of minors under Chapter 51, current Form G-04 is retitled and revised to remove mention of incapacitated persons. Form G-05 will be the new ''inventory form'' for incapacitated persons.
The Notice of Filing (G-06) was published for comment at 45 Pa.B. 1070 (March 7, 2015) and 46 Pa.B. 7934 (December 17, 2016). The most significant change to the form, aside from formatting, was this re-designation from a ''certificate of filing'' to a ''notice of filing'' to make it consistent with the existing Pennsylvania Orphans' Court Rules.
The Expert Report (G-07) was republished for comment. See 47 Pa.B. 5930 (September 23, 2017).
These forms will be posted permanently on the UJS website with the other orphans' court forms. See http://www.pacourts.us/forms/for-the-public/orphans-court-forms. The index to the appendix containing the forms is amended to reflect the new forms.
There are two effective dates for these amendments with each having a different critical path. The GTS will rely upon data required by the reporting forms (Report of Guardian of the Estate (G-02), Report of Guardian of the Person (G-03), and the Guardian's Inventory for an Incapacitated Person (G-05)) being entered by users. To facilitate implementation of the GTS, the reporting forms are effective July 1, 2018. Additionally, the Guardian's Inventory for a Minor (G-04) is amended to remove reference to ''incapacitated person.'' This amendment is also effective July 1, 2018.
The second effective date is the implementation of the rules and remaining forms (Citation with Notice (G-01), Notice of Filing (G-06), and Expert Report (G-07)), which have a longer critical pathway based largely on the submission and review of local rules. Accordingly, the effective date for the Rules and remaining forms is June 1, 2019.[Pa.B. Doc. No. 18-914. Filed for public inspection June 15, 2018, 9:00 a.m.]
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Pennsylvania Subrogation Laws | MWL Law WebsiteMatthiesen ...
Cade v. McDanel, 451 Pa. Super. 368, 679 A.2d 1266 (1996). However, noting that other states do apply the doctrine, Pennsylvania courts have indicated that the owner of the family vehicle is vicariously liable for the negligence of the driver if the driver is acting as an agent of the owner. Adams v. Williams, 39 Pa. DView Matthiesen, Wickert & Lehrer's state-by-state subrogation resources to view laws relevant to Pennsylvania subrogation laws. MWL Law Website.
Pennsylvania recognizes and applies the Made Whole Doctrine, although not very aggressively. Nationwide Mut. Ins. Co. v. DiTomo, 478 A.2d 1381 (Pa. Super. 1984). The Doctrine states that an insurer cannot enforce its right to subrogate an insured’s recovery from a third party unless that recovery is for the full amount of an insured’s damages. Accordingly, an insurer is generally not entitled to exercise a right to subrogation until its insured has been fully compensated for the insured’s injuries. Lexington Ins. Co. v. Q-E Mfg. Co., Inc., 2006 WL 2136244 (M.D. Pa. 2006) (unreported decision). However, there do not appear to be many cases which apply the Made Whole Doctrine to health insurance subrogation cases. Watson v. Allstate Ins. Co., 28 F.2d 942 (M.D. Pa. 1998); DiTomo, supra.
UM subrogation is allowed only upon the insurer’s showing that the sum of the insured’s recovery from the insurer and from persons legally responsible for the injury exceeds the insured’s loss. Id. The insurance policy may not renounce the right of the insured to be made whole. DeSantis v. American Mut. Liability Ins. Co., 53 Pa. D & C.2d 595 (Pa. 1969).
The Made Whole Doctrine in Pennsylvania is an equitable doctrine. DiTomo, supra; Watson, supra. When a subrogation claim arises out of a contract, equitable principles continue to apply. Valora v. Pennsylvania Employee’s Benefit Trust Fund, 939 A.2d 312 (Pa. S. Ct. 2007). However, if an insured settles his claim with the third party he is made whole as a matter of law. Associated Hosp. Service of Philadelphia v. Pustilnik, 396 A.2d 1332 (1979), vacated on other grounds, 439 A.2d 1149 (Pa. 1981). There is a line of cases in Pennsylvania which provides that when an injured party settles with the tortfeasor he waives his right to a judicial determination of his losses and conclusively establishes the settlement amount as full compensation for his damages. In those situations, it has been held that the insurance company has a right of subrogation attaching to the amount of the settlement. Illinois Auto Ins. Co. v. Braun, 421 A.2d 1074 (Pa. 1982).
In Pennsylvania, an insurer’s subrogation rights are not superior to the insured’s rights because subrogation does not arise until the insured has been made whole. DiTomo, supra. This rule of law has been sporadically applied by Pennsylvania courts to both equitable and contractual subrogation. Gallop v. Rose, 616 A.2d 1027 (Pa. Super. Ct. 1992). The Made Whole Doctrine is also applicable to statutory subrogation disputes in the absence of a legislative intent to displace the rule. City of Meadville v. Workers’ Comp. Appeal Bd., 810 A.2d 703, 706 (Pa. Commw. Ct. 2001). In implementing the Made Whole Doctrine, courts allow a subrogation recovery from the insured in the amount by which the sum received by the insured from the tortfeasor, together with the insurance payments made, exceeds the loss and expense incurred by the insured in realizing the claim against the wrongdoer. Nationwide Mut. Ins. Co. v. Butler, 28 Pa. D. & C.3d 627, 630 (Pa. Com. Pl. 1983). Pursuant to this measure, the expenses of making the recovery from the wrongdoer, including attorneys’ fees, must be taken into account in determining whether the insured has any excess recovery to which the insurer would be entitled under the doctrine of subrogation. Nationwide Mut. Ins. Co. v. Kintz, 27 Pa. D. & C.3d 164 (Pa. Com. Pl. 1983); Pustilnik, supra.
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S ...
Jun 29, 1992 · Justice O'Connor, Justice Kennedy, and Justice Souter announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V A, V C, and VI, an opinion with respect to Part V E, in which Justice Stevens joins, and an opinion with respect to Parts IV, V B, and V D..
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 91-744 and 91-902PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, et al., PETITIONERS 91-744 v. ROBERT P. CASEY, et al., etc. ROBERT P. CASEY, et al., etc., PETITIONERS 91-902 on writs of certiorari to the united states court of appeals for the third circuit
Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113 (1973), that definition of
liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. See Brief for Respondents 104-117; Brief for United States as Amicus Curiae 8.
At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982 as amended in 1988 and 1989. 18 Pa. Cons. Stat. §§ 3203-3220 (1990). Relevant portions of the Act are set forth in the appendix. Infra, at 60. The Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed. § 3205. For a minor to obtain an abortion, the Act requires the informed consent of one of her parents, but provides for a judicial bypass option if the minor does not wish to or cannot obtain a parent's consent. § 3206. Another provision of the Act requires that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion. § 3209. The Act exempts compliance with these three requirements in the event of a "medical emergency," which is defined in § 3203 of the Act. See §§ 3203, 3205(a), 3206(a), 3209(c). In addition to the above provisions regulating the performance of abortions, the Act imposes certain reporting requirements on facilities that provide abortion services. §§ 3207(b), 3214(a), 3214(f).
Before any of these provisions took effect, the petitioners, who are five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services, brought this suit seeking declaratory and injunctive relief. Each provision was challenged as unconstitutional on its face. The District Court entered a preliminary injunction against the enforcement of the regulations, and, after a 3 day bench trial, held all the provisions at issue here unconstitutional, entering a permanent injunction against Pennsylvania's enforcement of them. 744 F.Supp. 1323 (ED Pa. 1990). The Court of Appeals for the Third Circuit affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement. 947 F. 2d 682 (1991). We granted certiorari. 502 U. S. ____ (1992).
The Court of Appeals found it necessary to follow an elaborate course of reasoning even to identify the first premise to use to determine whether the statute enacted by Pennsylvania meets constitutional standards. See 947 F. 2d, at 687-698. And at oral argument in this Court, the attorney for the parties challenging the statute took the position that none of the enactments can be upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5-6. We disagree with that analysis; but we acknowledge that our decisions after Roe cast doubt upon the meaning and reach of its holding. Further, the Chief Justice admits that he would overrule the central holding of Roe and adopt the rational relationship test as the sole criterion of constitutionality. See post, at ___. State and federal courts as well as legislatures throughout the Union must have guidance as they seek to address this subject in conformance with the Constitution. Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.
After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.
It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support aprohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.
Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the case before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, at least since Mugler v. Kansas, 123 U.S. 623, 660-661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed, "[d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States." Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring). "[T]he guaranties of due process, though having their roots in Magna Carta's `per legem terrae' and considered as procedural safeguards `against executive usurpation and tyranny,' have in this country `become bulwarks also against arbitrary legislation.' " Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)).
The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e. g., Duncan v. Louisiana, 391 U.S. 145, 147-148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.
It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D., 491 U.S. 110, 127-128, n. 6 (1989) (opinion of Scalia, J.). But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U.S. 78, 94-99 (1987); in Carey v. Population Services International,431 U.S. 678, 684-686 (1977); in Griswold v. Connecticut, 381 U.S. 479, 481-482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case, id., at 486-488 (Goldberg J., joined by Warren, C. J., and Brennan, J., concurring) (expressly relying on due process), id., at 500-502 (Harlan, J., concurring in judgment) (same), id., at 502-507 (White, J., concurring in judgment) (same); in Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); and in Meyer v. Nebraska, 262 U.S. 390, 399-403 (1923).
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9. As the second Justice Harlan recognized:
"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, supra, at 543 (Harlan, J., dissenting from dismissal on jurisdictional grounds).
Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U.S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U.S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity. See, e. g., Washington v. Harper, 494 U.S. 210, 221-222 (1990); Winston v. Lee, 470 U.S. 753 (1985); Rochin v. California, 342 U.S. 165 (1952).
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed:
"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint." Poe v. Ullman, 367 U. S., at 542 (Harlan, J., dissenting from dismissal on jurisdictional grounds).
See also Rochin v. California, supra, at 171-172 (Frankfurter, J., writing for the Court) ("To believe that this judicial exercise of judgment could be avoided by freezing `due process of law' at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges").
Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.
It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. See, e. g., Ferguson v. Skrupa, 372 U.S. 726 (1963); Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955). That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a State may not compel or enforce one view or the other. See West Virginia State Bd. of Education v. Barnette, 319 U.S. 624 (1943); Texas v. Johnson, 491 U.S. 397 (1989).
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U. S., at 685. Our cases recognize "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, supra, at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
These considerations begin our analysis of the woman's interest in terminating her pregnancy but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for thepersons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.
It should be recognized, moreover, that in some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International, afford constitutional protection. We have no doubt as to the correctness of those decisions. They support the reasoning in Roe relating to the woman's liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. As with abortion, reasonable people will have differences of opinion about these matters. One view is based on such reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full term no matter how difficult it will be to provide for the child and ensure its well being. Another is that theinability to provide for the nurture and care of the infant is a cruelty to the child and an anguish to the parent. These are intimate views with infinite variations, and their deep, personal character underlay our decisions in Griswold, Eisenstadt, and Carey. The same concerns are present when the woman confronts the reality that, perhaps despite her attempts to avoid it, she has become pregnant.
It was this dimension of personal liberty that Roe sought to protect, and its holding invoked the reasoning and the tradition of the precedents we have discussed, granting protection to substantive liberties of the person. Roe was, of course, an extension of those cases and, as the decision itself indicated, the separate States could act in some degree to further their own legitimate interests in protecting pre-natal life. The extent to which the legislatures of the States might act to outweigh the interests of the woman in choosing to terminate her pregnancy was a subject of debate both in Roe itself and in decisions following it.
While we appreciate the weight of the arguments made on behalf of the State in the case before us, arguments which in their ultimate formulation conclude that Roe should be overruled, the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis. We turn now to that doctrine.
The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13, 16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.
Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an "inexorable command," and certainly it is not such in every constitutional case, see Burnet v. Coronado Oil Gas Co., 285 U.S. 393, 405-411 (1932) (Brandeis, J., dissenting). See also Payne v. Tennessee, 501 U. S. ____, ____ (1991) (slip op., at ___) (Souter, J., joined by Kennedy, J., concurring); Arizona v. Rumsey, 467 U.S. 203, 212 (1984). Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proved to be intolerable simply in defying practical workability, Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965); whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, e. g., United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924); whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989); or whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification, e. g., Burnet, supra, at 412 (Brandeis, J., dissenting).
So in this case we may inquire whether Roe's central rule has been found unworkable; whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by the rule in question; whether the law's growth in the intervening years has left Roe's central rule a doctrinal anachronism discounted by society; and whether Roe's premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.
Although Roe has engendered opposition, it has in no sense proven "unworkable," see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546 (1985), representing as it does a simple limitation beyond which a state law is unenforceable. While Roe has, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today's decision, the required determinations fall within judicial competence.
The inquiry into reliance counts the cost of a rule's repudiation as it would fall on those who have relied reasonably on the rule's continued application. Since the classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context, see Payne v. Tennessee, supra, at ____ (slip op., at ___), where advance planning of great precision is most obviously a necessity, it is no cause for surprise that some would find no reliance worthy of consideration in support of Roe.
While neither respondents nor their amici in so many words deny that the abortion right invites some reliance prior to its actual exercise, one can readily imagine anargument stressing the dissimilarity of this case to one involving property or contract. Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for Roe's holding, such behavior may appear to justify no reliance claim. Even if reliance could be claimed on that unrealistic assumption, the argument might run, any reliance interest would be de minimis. This argument would be premised on the hypothesis that reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.
To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. See, e.g., R. Petchesky, Abortion and Woman's Choice 109, 133, n. 7 (rev. ed. 1990). The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.
No evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.
It will be recognized, of course, that Roe stands at an intersection of two lines of decisions, but in whichever doctrinal category one reads the case, the result for present purposes will be the same. The Roe Court itself placed its holding in the succession of cases most prominently exemplified by Griswold v. Connecticut, 381 U.S. 479 (1965), see Roe, 410 U. S., at 152-153. When it is so seen, Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child. See, e.g., Carey v. Population Services International, 431 U.S. 678 (1977); Moore v. East Cleveland, 431 U.S. 678 (1977).
Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe's view that a State's interest in the protection of life falls short of justifyingany plenary override of individual liberty claims. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261,278 (1990); Cf., e.g., Riggins v. Nevada, 504 U.S. ____, ____ (1992) (slip. op., at 7); Washington v. Harper, 494 U.S. 210 (1990); see also, e.g., Rochin v. California, 342 U.S. 165 (1952); Jacobson v. Massachusetts, 197 U.S. 11, 24-30 (1905).
Finally, one could classify Roe as sui generis. If the case is so viewed, then there clearly has been no erosion of its central determination. The original holding resting on the concurrence of seven Members of the Court in 1973 was expressly affirmed by a majority of six in 1983, see Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) (Akron I), and by a majority of five in 1986 , see Thornburgh v. American College of Obstetricians andGynecologists, 476 U.S. 747 (1986), expressing adherence to the constitutional ruling despite legislative efforts in some States to test its limits. More recently, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), although two of the present authors questioned the trimester framework in a way consistent with our judgment today, see id., at 518 (Rehnquist C. J., joined by White, and Kennedy, JJ.); id., at 529 (O'Connor, J., concurring in part and concurring in judgment), a majority of the Court either decided to reaffirm or declined to address the constitutional validity of the central holding of Roe. See Webster, 492 U. S., at 521 (Rehnquist, C. J., joined by White and Kennedy, JJ.); id., at 525-526 (O'Connor, J., concurring in part and concurring in judgment); id., at 537, 553 (Blackmun, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part); id., at 561-563 (Stevens, J., concurring in part and dissenting in part).
Nor will courts building upon Roe be likely to hand down erroneous decisions as a consequence. Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty. The latter aspect of the decision fits comfortably within the framework of the Court's prior decisions including Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), Griswold, supra, Loving v. Virginia, 388 U.S. 1 (1967), and Eisenstadt v. Baird, 405 U.S. 438 (1972), the holdings of which are "not a series of isolated points," but mark a "rational continuum." Poe v. Ullman, 367 U. S., at 543 (1961) (Harlan, J., dissenting). As we described in Carey v. Population Services International, supra, the liberty which encompasses those decisions
"includes `the interest in independence in making certain kinds of important decisions.' While the outer limits of this aspect of [protected liberty] have not been marked by the Court, it is clear that amongthe decisions that an individual may make without unjustified government interference are personal decisions `relating to marriage, procreation, contraception, family relationships, and child rearing and education.' " Id., at 684-685 (citations omitted).
The soundness of this prong of the Roe analysis is apparent from a consideration of the alternative. If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions. E.g., Arnold v. Board of Education of Escambia County, Ala., 880 F. 2d 305, 311 (CA11 1989) (relying upon Roe and concluding that government officials violate the Constitution by coercing a minor to have an abortion); Avery v. County of Burke, 660 F. 2d 111, 115 (CA4 1981) (county agency inducing teenage girl to undergo unwanted sterilization on the basis of misrepresentation that she had sickle cell trait); see also In re Quinlan, 70 N.J. 10, 355 A. 2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976) (relying on Roe in finding a right to terminate medical treatment). In any event, because Roe's scope is confined by the fact of its concern with postconception potential life, a concern otherwise likely to be implicated only by some forms of contraception protected independently under Griswold and later cases, any error in Roe is unlikely to have serious ramifications in future cases.
We have seen how time has overtaken some of Roe's factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, see Akron I, supra, at 429, n. 11, and advances in neonatal care have advanced viability to apoint somewhat earlier. Compare Roe, 410 U. S., at 160, with Webster, supra, at 515-516 (opinion of Rehnquist, C.J.); see Akron I, supra, at 457, and n. 5 (O'Connor, J., dissenting). But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe's central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.
The sum of the precedential inquiry to this point shows Roe's underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips. Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarilyturns, the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have, not for overruling it.
In a less significant case, stare decisis analysis could, and would, stop at the point we have reached. But the sustained and widespread debate Roe has provoked calls for some comparison between that case and others of comparable dimension that have responded to national controversies and taken on the impress of the controversies addressed. Only two such decisional lines from the past century present themselves for examination, and in each instance the result reached by the Court accorded with the principles we apply today.
The first example is that line of cases identified with Lochner v. New York, 198 U.S. 45 (1905), which imposed substantive limitations on legislation limiting economic autonomy in favor of health and welfare regulation, adopting, in Justice Holmes' view, the theory of laissez faire. Id., at 75 (Holmes, J., dissenting). The Lochner decisions were exemplified by Adkins v. Children's Hospital of D.C., 261 U.S. 525 (1923), in which this Court held it to be an infringement of constitutionally protected liberty of contract to require the employers of adult women to satisfy minimum wage standards. Fourteen years later, West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), signalled the demise of Lochner by overruling Adkins. In the meantime, the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom protected in Adkins rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare. See West Coast Hotel Co., supra, at 399. As Justice Jackson wrote of the constitutional crisis of 1937 shortly before he came on the bench, "The older world of laissez faire was recognized everywhereoutside the Court to be dead." R. Jackson, The Struggle for Judicial Supremacy 85 (1941). The facts upon which the earlier case had premised a constitutional resolution of social controversy had proved to be untrue, and history's demonstration of their untruth not only justified but required the new choice of constitutional principle that West Coast Hotel announced. Of course, it was true that the Court lost something by its misperception, or its lack of prescience, and the Court packing crisis only magnified the loss; but the clear demonstration that the facts of economic life were different from those previously assumed warranted the repudiation of the old law.
The second comparison that 20th century history invites is with the cases employing the separate but equal rule for applying the Fourteenth Amendment's equal protection guarantee. They began with Plessy v. Ferguson, 163 U.S. 537 (1896), holding that legislatively mandated racial segregation in public transportation works no denial of equal protection, rejecting the argument that racial separation enforced by the legal machinery of American society treats the black race as inferior. The Plessy Court considered "the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." Id., at at 551. Whether, as a matter of historical fact, the Justices in the Plessy majority believed this or not, see id., at 557, 562 (Harlan, J., dissenting), this understanding of the implication of segregation was the stated justification for the Court's opinion. But this understanding of the facts and the rule it was stated to justify were repudiated in Brown v. Board of Education, 347 U.S. 483 (1954). As one commentator observed, the question before the Court in Brown was "whether discrimination inheres in that segregation which is imposed by law in the twentieth century in certainspecific states in the American Union. And that question has meaning and can find an answer only on the ground of history and of common knowledge about the facts of life in the times and places aforesaid." Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J. 421, 427 (1960).
The Court in Brown addressed these facts of life by observing that whatever may have been the understanding in Plessy's time of the power of segregation to stigmatize those who were segregated with a "badge of inferiority," it was clear by 1954 that legally sanctioned segregation had just such an effect, to the point that racially separate public educational facilities were deemed inherently unequal. 374 U. S., at 494-495. Society's understanding of the facts upon which a constitutional ruling was sought in 1954 was thus fundamentally different from the basis claimed for the decision in 1896. While we think Plessy was wrong the day it was decided, see Plessy, supra, at 552-564 (Harlan, J., dissenting), we must also recognize that the Plessy Court's explanation for its decision was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine Plessy was on this ground alone not only justified but required.
West Coast Hotel and Brown each rested on facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions. Each case was comprehensible as the Court's response to facts that the country could understand, or had come to understand already, but which the Court of an earlier day, as its own declarations disclosed, had not been able to perceive. As the decisions were thus comprehensible they were also defensible, not merely as the victories of one doctrinal school over another by dint of numbers (victories though they were), but as applications of constitutional principle to facts as they had not been seen by the Court before. In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decisionto overrule a prior case as a response to the Court's constitutional duty.
Because the case before us presents no such occasion it could be seen as no such response. Because neither the factual underpinnings of Roe's central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown) the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided. See, e.g., Mitchell v. W. T. Grant, 416 U.S. 600, 636 (1974) (Stewart, J., dissenting) ("A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve"); Mapp v. Ohio, 367 U.S. 643, 677 (1961) (Harlan, J., dissenting).
The examination of the conditions justifying the repudiation of Adkins by West Coast Hotel and Plessy by Brown is enough to suggest the terrible price that would have been paid if the Court had not overruled as it did. In the present case, however, as our analysis to this point makes clear, the terrible price would be paid for overruling. Our analysis would not be complete, however, without explaining why overruling Roe's central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. To understand whythis would be so it is necessary to understand the source of this Court's authority, the conditions necessary for its preservation, and its relationship to the country's understanding of itself as a constitutional Republic.
The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands.
The underlying substance of this legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court's opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.
The need for principled action to be perceived as such is implicated to some degree whenever this, or any otherappellate court, overrules a prior case. This is not to say, of course, that this Court cannot give a perfectly satisfactory explanation in most cases. People understand that some of the Constitution's language is hard to fathom and that the Court's Justices are sometimes able to perceive significant facts or to understand principles of law that eluded their predecessors and that justify departures from existing decisions. However upsetting it may be to those most directly affected when one judicially derived rule replaces another, the country can accept some correction of error without necessarily questioning the legitimacy of the Court.
In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country's belief in the Court's good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation.
That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. Cf. Brown v. Board of Education, 349 U.S. 294, 300 (1955) (Brown II) ("[I]t should go without saying that the vitality of th[e] constitutional principles [announced in Brown v. Board of Education, 347 U.S. 483 (1954),] cannot be allowed to yield simply because of disagreement with them").
The country's loss of confidence in the judiciary would be underscored by an equally certain and equally reasonable condemnation for another failing in overruling unnecessarily and under pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. An extra price will be paid by those who themselves disapprove of the decision's results when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From the obligation of this promise this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that.
It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.
The Court's duty in the present case is clear. In 1973, it confronted the already divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only moreintense. A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, and we do so today.
From what we have said so far it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.
That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman's liberty to determine whether to carry her pregnancy to full term.
We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare decisis. Any judicial act of line drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in theface of great opposition. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U. S., at 759; Akron I, 462 U. S., at 419-420. Although we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent with Roe's statement that the State has a legitimate interest in promoting the life or potential life of the unborn, see infra, at ___, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe. It is that premise which we reaffirm today.
The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. See Roe v. Wade, 410 U. S., at 163. Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw. And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, see supra, at ___, but this is an imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter. The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child.
The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.
On the other side of the equation is the interest of the State in the protection of potential life. The Roe Courtrecognized the State's "important and legitimate interest in protecting the potentiality of human life." Roe, supra, at 162. The weight to be given this state interest, not the strength of the woman's interest, was the difficult question faced in Roe. We do not need to say whether each of us, had we been Members of the Court when the valuation of the State interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and coming as it does after nearly 20 years of litigation in Roe's wake we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding. And we have concluded that the essential holding of Roe should be reaffirmed.
Yet it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman's liberty but also the State's "important and legitimate interest in potential life." Roe, supra, at 163. That portion of the decision in Roe has been given too little acknowledgement and implementation by the Court in its subsequent cases. Those cases decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest. See, e. g., Akron I, supra, at 427. Not all of the cases decided under that formulation can be reconciled with the holding in Roe itself that the State has legitimate interests in the health of the woman and in protecting the potential life within her. In resolving this tension, we choose to rely upon Roe, as against the later cases.
Roe established a trimester framework to govern abortion regulations. Under this elaborate but rigid construct, almost no regulation at all is permitted during the first trimester of pregnancy; regulations designed to protect the woman's health, but not to further the State's interest in
potential life, are permitted during the second trimester; and during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake. Roe v. Wade, supra, at 163-166. Most of our cases since Roe have involved the application of rules derived from the trimester framework. See, e. g., Thornburgh v. American College of Obstetricians and Gynecologists, supra; Akron I, supra.
The trimester framework no doubt was erected to ensure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective. A framework of this rigidity was unnecessary and in its later interpretation sometimes contradicted the State's permissible exercise of its powers.
Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself. " `[T]he Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth.' " Webster v. Reproductive Health Services, 492 U. S., at 511 (opinion of the Court) (quoting Poelker v. Doe, 432 U.S. 519, 521 (1977)). It follows that States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning. This, too, we find consistent with Roe's central premises, and indeed the inevitable consequence of ourholding that the State has an interest in protecting the life of the unborn.
We reject the trimester framework, which we do not consider to be part of the essential holding of Roe. See Webster v. Reproductive Health Services, supra, at 518 (opinion of Rehnquist, C. J.); id., at 529 (O'Connor, J., concurring in part and concurring in judgment) (describing the trimester framework as "problematic"). Measures aimed at ensuring that a woman's choice contemplates the consequences for the fetus do not necessarily interfere with the right recognized in Roe, although those measures have been found to be inconsistent with the rigid trimester framework announced in that case. A logical reading of the central holding in Roe itself, and a necessary reconciliation of the liberty of the woman and the interest of the State in promoting prenatal life, require, in our view, that we abandon the trimester framework as a rigid prohibition on all previability regulation aimed at the protection of fetal life. The trimester framework suffers from these basic flaws: in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in Roe. As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right. An example clarifies the point. We have held that not every ballot access limitation amounts to an infringement of the right to vote. Rather, the States are granted substantial flexibility in establishing the framework within which voters choose the candidates for whom they wish to vote. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); Norman v. Reed, 502 U. S. ___ (1992).
The abortion right is similar. Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed tostrike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. See Hodgson v. Minnesota, 497 U.S. 417, 458-459 (1990) (O'Connor, J., concurring in part and concurring in judgment in part); Ohio v. Akron Center for Reproductive Health, 497 U.S. 502,
(1990) (Akron II) (opinion of Kennedy, J.) Webster v. Reproductive Health Services, supra, at 530 (O'Connor, J., concurring in part and concurring in judgment); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 828 (O'Connor, J., dissenting); Simopoulos v. Virginia, 462 U.S. 506
, 520 (1983) (O'Connor, J., concurring in part and concurring in judgment); Planned Parenthood Assn. of Kansas City v. Ashcroft, 462 U.S. 476
, 505 (1983) (O'Connor, J., concurring in judgment in part and dissenting in part); Akron I, 462 U. S., at 464 (O'Connor, J., joined by White and Rehnquist, JJ., dissenting); Bellotti v. Baird, 428 U.S. 132
, 147 (1976) (Bellotti I).
For the most part, the Court's early abortion cases adhered to this view. In Maher v. Roe, 432 U.S. 464, 473-474 (1977), the Court explained: "Roe did not declare an unqualified `constitutional right to an abortion,' as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy." See also Doe v. Bolton, 410 U.S. 179, 198 (1973) ("[T]he interposition of the hospital abortion committee is unduly restrictive of the patient's rights"); Bellotti I, supra, at 147 (State may not "impose undue burdens upon a minor capable of giving an informed consent"); Harris v. McRae, 448 U.S. 297, 314 (1980) (citing Maher, supra). Cf. Carey v. Population Services International, 431 U. S., at 688 ("[T]he same test must be applied to state regulations thatburden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely").
These considerations of the nature of the abortion right illustrate that it is an overstatement to describe it as a right to decide whether to have an abortion "without interference from the State," Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 61 (1976). All abortion regulations interfere to some degree with a woman's ability to decide whether to terminate her pregnancy. It is, as a consequence, not surprising that despite the protestations contained in the original Roe opinion to the effect that the Court was not recognizing an absolute right, 410 U. S., at 154-155, the Court's experience applying the trimester framework has led to the striking down of some abortion regulations which in no real sense deprived women of the ultimate decision. Those decisions went too far because the right recognized by Roe is a right "to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U. S., at 453. Not all governmental intrusion is of necessity unwarranted; and that brings us to the other basic flaw in the trimester framework: even in Roe's terms, in practice it undervalues the State's interest in the potential life within the woman.
Roe v. Wade was express in its recognition of the State's "important and legitimate interest[s] in preserving and protecting the health of the pregnant woman [and] in protecting the potentiality of human life." 410 U. S., at 162. The trimester framework, however, does not fulfill Roe's own promise that the State has an interest in protecting fetal life or potential life. Roe began the contradiction by using the trimester framework to forbid any regulation of abortion designed to advance that interest before viability. Id., at 163. Before viability, Roe and subsequent cases treat all governmental attempts to influence a woman's decisionon behalf of the potential life within her as unwarranted. This treatment is, in our judgment, incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy. Cf. Webster, 492 U. S., at 519 (opinion of Rehnquist, C. J.); Akron I, supra, at 461 (O'Connor, J., dissenting).
The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty.
The concept of an undue burden has been utilized by the Court as well as individual members of the Court, including two of us, in ways that could be considered inconsistent. See, e. g., Hodgson v. Minnesota, 497 U. S., at ___ (O'Connor, J., concurring in part and concurring in judgment); Akron II, 497 U. S., at ___ (opinion of Kennedy, J.); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 828-829 (O'Connor, J., dissenting); Akron I, supra, at 461-466 (O'Connor, J., dissenting); Harris v. McRae, supra, at 314; Maher v. Roe, supra, at 473; Beal v. Doe, 432 U.S. 438, 446 (1977); Bellotti I, supra, at 147. Because we set forth a standard of general application to which we intend to adhere, it is important to clarify what is meant by an undue burden.
A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of awoman's choice cannot be considered a permissible means of serving its legitimate ends. To the extent that the opinions of the Court or of individual Justices use the undue burden standard in a manner that is inconsistent with this analysis, we set out what in our view should be the controlling standard. Cf. McCleskey v. Zant, 499 U.S. ___ (1991) (slip op., at 20) (attempting to "define the doctrine of abuse of the writ with more precision" after acknowledging tension among earlier cases). In our considered judgment, an undue burden is an unconstitutional burden. See Akron II, supra, at ___ (opinion of Kennedy, J.). Understood another way, we answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability could be constitutional. See, e. g., Akron I, supra, at 462-463 (O'Connor, J., dissenting). The answer is no.
Some guiding principles should emerge. What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. See infra, at ___ ___ (addressing Pennsylvania's parental consent requirement). Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.
Even when jurists reason from shared premises, some disagreement is inevitable. Compare Hodgson, 497 U. S., at
(opinion of Kennedy, J.) with id., at
(O'Connor, J., concurring in part and concurring injudgment in part). That is to be expected in the application of any legal standard which must accommodate life's complexity. We do not expect it to be otherwise with respect to the undue burden standard. We give this summary:
(a) To protect the central right recognized by Roe v. Wade while at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.
(c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.
(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.
(e) We also reaffirm Roe's holding that "subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Roe v. Wade, 410 U. S., at 164-165.
These principles control our assessment of the Pennsylvania statute, and we now turn to the issue of the validity of its challenged provisions.
The Court of Appeals applied what it believed to be the undue burden standard and upheld each of the provisions except for the husband notification requirement. We agree generally with this conclusion, but refine the undue burden analysis in accordance with the principles articulated above. We now consider the separate statutory sections at issue.
Because it is central to the operation of various other requirements, we begin with the statute's definition of medical emergency. Under the statute, a medical emergency is
"[t]hat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function." 18 Pa. Cons. Stat. (1990). § 3203.
Petitioners argue that the definition is too narrow, contending that it forecloses the possibility of an immediate abortion despite some significant health risks. If the contention were correct, we would be required to invalidate the restrictive operation of the provision, for the essential holding of Roe forbids a State from interfering with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health. 410 U. S., at 164. See also Harris v. McRae, 448 U. S., at 316.
The District Court found that there were three serious conditions which would not be covered by the statute: preeclampsia, inevitable abortion, and premature ruptured membrane. 744 F. Supp., at 1378. Yet, as the Court of Appeals observed, 947 F. 2d, at 700-701, it is undisputed that under some circumstances each of these conditions could lead to an illness with substantial and irreversible consequences. While the definition could be interpreted in an unconstitutional manner, the Court of Appeals construed the phrase "serious risk" to include those circumstances. Id., at 701. It stated: "we read the medical emergency exception as intended by the Pennsylvania legislature to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman." Ibid. As we said in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 499-500 (1985): "Normally, . . . we defer to the construction of a state statute given it by the lower federal courts." Indeed, we have said that we will defer to lower court interpretations of state law unless they amount to "plain" error. Palmer v. Hoffman, 318 U.S. 109, 118 (1943). This " `reflect[s] our belief that district courts and courts of appeals are better schooled in and more able to interpret the laws of their respective States.' " Frisby v. Schultz, 487 U.S. 474, 482 (1988) (citation omitted). We adhere to that course today, and conclude that, as construed by the Court of Appeals, the medical emergency definition imposes no undue burden on a woman's abortion right.
We next consider the informed consent requirement. 18 Pa. Cons. Stat. Ann. § 3205. Except in a medical emergency, the statute requires that at least 24 hours before performing an abortion a physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the "probable gestational age of the unborn child." The physician or a qualified nonphysician must inform the woman of the availability of printedmaterials published by the State describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion. An abortion may not be performed unless the woman certifies in writing that she has been informed of the availability of these printed materials and has been provided them if she chooses to view them.
Our prior decisions establish that as with any medical procedure, the State may require a woman to give her written informed consent to an abortion. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 67. In this respect, the statute is unexceptional. Petitioners challenge the statute's definition of informed consent because it includes the provision of specific information by the doctor and the mandatory 24-hour waiting period. The conclusions reached by a majority of the Justices in the separate opinions filed today and the undue burden standard adopted in this opinion require us to overrule in part some of the Court's past decisions, decisions driven by the trimester framework's prohibition of all previability regulations designed to further the State's interest in fetal life.
In Akron I, 462 U.S. 416 (1983), we invalidated an ordinance which required that a woman seeking an abortion be provided by her physician with specific information "designed to influence the woman's informed choice between abortion or childbirth." Id., at 444. As we later described the Akron I holding in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 762, there were two purported flaws in the Akron ordinance: the information was designed to dissuade the woman from having an abortion and the ordinance imposed "a rigid requirement that a specific body of information be givenin all cases, irrespective of the particular needs of the patient . . . ." Ibid.
To the extent Akron I and Thornburgh find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the "probable gestational age" of the fetus, those cases go too far, are inconsistent with Roe's acknowledgment of an important interest in potential life, and are overruled. This is clear even on the very terms of Akron I and Thornburgh. Those decisions, along with Danforth, recognize a substantial government interest justifying a requirement that a woman be apprised of the health risks of abortion and childbirth. E. g., Danforth, supra, at 66-67. It cannot be questioned that psychological well being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible.
We also see no reason why the State may not require doctors to inform a woman seeking an abortion of the availability of materials relating to the consequences to the fetus, even when those consequences have no direct relation to her health. An example illustrates the point. We would think it constitutional for the State to require that in order for there to be informed consent to a kidney transplant operation the recipient must be supplied with information about risks to the donor as well as risks to himself or herself. A requirement that the physician make available information similar to that mandated by the statute here was described in Thornburgh as "an outright attempt to wedge the Commonwealth's message discouraging abortioninto the privacy of the informed consent dialogue between the woman and her physician." 476 U. S., at 762. We conclude, however, that informed choice need not be defined in such narrow terms that all considerations of the effect on the fetus are made irrelevant. As we have made clear, we depart from the holdings of Akron I and Thornburgh to the extent that we permit a State to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over abortion. In short, requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to insure an informed choice, one which might cause the woman to choose childbirth over abortion. This requirement cannot be considered a substantial obstacle to obtaining an abortion, and, it follows, there is no undue burden.
Our prior cases also suggest that the "straitjacket," Thornburgh, supra, at 762 (quoting Danforth, supra, at 67, n. 8), of particular information which must be given in each case interferes with a constitutional right of privacy between a pregnant woman and her physician. As a preliminary matter, it is worth noting that the statute now before us does not require a physician to comply with the informed consent provisions "if he or she can demonstrate by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient." 18 Pa. Cons. Stat. § 3205 (1990). In this respect, the statute does not prevent the physician from exercising his or her medical judgment.
Whatever constitutional status the doctor patient relation may have as a general matter, in the present context it is derivative of the woman's position. The doctor patient relation does not underlie or override the two more generalrights under which the abortion right is justified: the right to make family decisions and the right to physical autonomy. On its own, the doctor patient relation here is entitled to the same solicitude it receives in other contexts. Thus, a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific information about any medical procedure.
All that is left of petitioners' argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U.S. 705 (1977), but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. Cf. Whalen v. Roe, 429 U.S. 589, 603 (1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.
The Pennsylvania statute also requires us to reconsider the holding in Akron I that the State may not require that a physician, as opposed to a qualified assistant, provide information relevant to a woman's informed consent. 462 U. S., at 448. Since there is no evidence on this record that requiring a doctor to give the information as provided by the statute would amount in practical terms to a substantial obstacle to a woman seeking an abortion, we conclude that it is not an undue burden. Our cases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others. See Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955). Thus, we uphold the provision as a reasonable means to insure that the woman's consent is informed.
Our analysis of Pennsylvania's 24-hour waiting period between the provision of the information deemed necessary to informed consent and the performance of an abortion under the undue burden standard requires us to reconsider the premise behind the decision in Akron I invalidating a parallel requirement. In Akron I we said: "Nor are we convinced that the State's legitimate concern that the woman's decision be informed is reasonably served by requiring a 24-hour delay as a matter of course." 462 U. S., at 450. We consider that conclusion to be wrong. The idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable, particularly where the statute directs that important information become part of the background of the decision. The statute, as construed by the Court of Appeals, permits avoidance of the waiting period in the event of a medical emergency and the record evidence shows that in the vast majority of cases, a 24-hour delay does not create any appreciable health risk. In theory, at least, the waiting period is a reasonable measure to implement the State's interest in protecting the life of the unborn, a measure that does not amount to an undue burden.
Whether the mandatory 24-hour waiting period is nonetheless invalid because in practice it is a substantial obstacle to a woman's choice to terminate her pregnancy is a closer question. The findings of fact by the District Court indicate that because of the distances many women must travel to reach an abortion provider, the practical effect will often be a delay of much more than a day because the waiting period requires that a woman seeking an abortion make at least two visits to the doctor. The District Court also found that in many instances this will increase the exposure of women seeking abortions to "the harassment and hostility of anti abortion protestors demonstrating outside a clinic." 744 F. Supp., at 1351. As a result, the District Court found that for those women who have thefewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be "particularly burdensome." Id., at 1352.
These findings are troubling in some respects, but they do not demonstrate that the waiting period constitutes an undue burden. We do not doubt that, as the District Court held, the waiting period has the effect of "increasing the cost and risk of delay of abortions," id., at 1378, but the District Court did not conclude that the increased costs and potential delays amount to substantial obstacles. Rather, applying the trimester framework's strict prohibition of all regulation designed to promote the State's interest in potential life before viability, see id., at 1374, the District Court concluded that the waiting period does not further the state "interest in maternal health" and "infringes the physician's discretion to exercise sound medical judgment." Id., at 1378. Yet, as we have stated, under the undue burden standard a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. And while the waiting period does limit a physician's discretion, that is not, standing alone, a reason to invalidate it. In light of the construction given the statute's definition of medical emergency by the Court of Appeals, and the District Court's findings, we cannot say that the waiting period imposes a real health risk.
We also disagree with the District Court's conclusion that the "particularly burdensome" effects of the waiting period on some women require its invalidation. A particular burden is not of necessity a substantial obstacle. Whether a burden falls on a particular group is a distinct inquiry from whether it is a substantial obstacle even as to the women in that group. And the District Court did not conclude that the waiting period is such an obstacle even for the women who are most burdened by it. Hence, on therecord before us, and in the context of this facial challenge, we are not convinced that the 24-hour waiting period constitutes an undue burden.
We are left with the argument that the various aspects of the informed consent requirement are unconstitutional because they place barriers in the way of abortion on demand. Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. See, e. g., Doe v. Bolton, 410 U. S., at 189. Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right it cannot be classified as an interference with the right Roe protects. The informed consent requirement is not an undue burden on that right.
Section 3209 of Pennsylvania's abortion law provides, except in cases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion. The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her. A physician who performs an abortion on a married woman without receiving the appropriate signed statement will have his or her license revoked, and is liable to the husband for damages.
The District Court heard the testimony of numerous expert witnesses, and made detailed findings of fact regarding the effect of this statute. These included:
"273. The vast majority of women consult their husbands prior to deciding to terminate their pregnancy. . . .
. . . . .
"279. The `bodily injury' exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (a) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (c) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over financesto deprive of necessary monies for herself or herchildren. . . .
. . . . .
"281. Studies reveal that family violence occurs in two million families in the United States. This figure, however, is a conservative one that substantially understates (because battering is usually not reported until it reaches life threatening proportions) the actual number of families affected by domestic violence. In fact, researchers estimate that one of every two women will be battered at some time in their life. . . .
"282. A wife may not elect to notify her husband of her intention to have an abortion for a variety of reasons, including the husband's illness, concernabout her own health, the imminent failure of the marriage, or the husband's absolute opposition to the abortion. . . .
"283. The required filing of the spousal consent form would require plaintiff clinics to change their counseling procedures and force women to reveal their most intimate decision making on pain of criminal sanctions. The confidentiality of these revelations could not be guaranteed, since the woman's records are not immune from subpoena. . . .
"284. Women of all class levels, educational backgrounds, and racial, ethnic and religious groups are battered. . . .
"285. Wife battering or abuse can take on many physical and psychological forms. The nature and scope of the battering can cover a broad range of actions and be gruesome and torturous. . . .
"286. Married women, victims of battering, have been killed in Pennsylvania and throughout the United States. . . .
"287. Battering can often involve a substantial amount of sexual abuse, including marital rape and sexual mutilation. . . .
"288. In a domestic abuse situation, it is common for the battering husband to also abuse the children in an attempt to coerce the wife. . . .
"289. Mere notification of pregnancy is frequently a flashpoint for battering and violence within the family. The number of battering incidents is high during the pregnancy and often the worst abuse can be associated with pregnancy. . . . The battering husband may deny parentage and use the pregnancy as an excuse for abuse. . . .
"290. Secrecy typically shrouds abusive families. Family members are instructed not to tell anyone,especially police or doctors, about the abuse and violence. Battering husbands often threaten their wives or her children with further abuse if she tells an outsider of the violence and tells her that nobody will believe her. A battered woman, therefore, is highly unlikely to disclose the violence against her for fear of retaliation by the abuser. . . .
"291. Even when confronted directly by medical personnel or other helping professionals, battered women often will not admit to the battering because they have not admitted to themselves that they are battered. . . .
. . . . .
"294. A woman in a shelter or a safe house unknown to her husband is not `reasonably likely' to have bodily harm inflicted upon her by her batterer, however her attempt to notify her husband pursuant to section 3209 could accidentally disclose her whereabouts to her husband. Her fear of future ramifications would be realistic under the circumstances.
"295. Marital rape is rarely discussed with others or reported to law enforcement authorities, and of those reported only few are prosecuted. . . .
"296. It is common for battered women to have sexual intercourse with their husbands to avoid being battered. While this type of coercive sexual activity would be spousal sexual assault as defined by the Act, many women may not consider it to be so and others would fear disbelief. . . .
"297. The marital rape exception to section 3209 cannot be claimed by women who are victims of coercive sexual behavior other than penetration. The90-day reporting requirement of the spousal sexual assault statute, 18 Pa. Con. Stat. Ann. § 3218(c), further narrows the class of sexually abused wives who can claim the exception, since many of these women may be psychologically unable to discuss or report the rape for several years after the incident. . . .
"298. Because of the nature of the battering relationship, battered women are unlikely to avail themselves of the exceptions to section 3209 of the Act, regardless of whether the section applies to them." 744 F. Supp., at 1360-1362.
These findings are supported by studies of domestic violence. The American Medical Association (AMA) has published a summary of the recent research in this field, which indicates that in an average 12-month period in this country, approximately two million women are the victims of severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every eight husbands had assaulted their wives during the past year. The AMA views these figures as "marked underestimates," because the nature of these incidents discourages women from reporting them, and because surveys typically exclude the very poor, those who do not speak English well, and women who are homeless or in institutions or hospitals when the survey is conducted. According to the AMA, "[r]esearchers on family violence agree that the true incidence of partner violence is probably double the above estimates; or four million severely assaulted women per year. Studies suggest that from one fifth to one third of all women will be physically assaulted by a partner or ex partner during their lifetime." AMA Council on Scientific Affairs, Violence Against Women 7 (1991) (emphasis in original). Thus on an average day in the United States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual assault. Id., at 3-4; Shields &Hanneke, Battered Wives' Reactions to Marital Rape, in The Dark Side of Families: Current Family Violence Research 131, 144 (D. Finkelhor, R. Gelles, G. Hataling, & M. Straus eds. 1983). In families where wife beating takes place, moreover, child abuse is often present as well. Violence Against Women, supra, at 12.
Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse. Psychological abuse, particularly forced social and economic isolation of women, is also common. L. Walker, The Battered Woman Syndrome 27-28 (1984). Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior alternative. Herbert, Silver, & Ellard, Coping with an Abusive Relationship: I. How and Why do Women Stay?, 53 J. Marriage & the Family 311 (1991). Many abused women who find temporary refuge in shelters return to their husbands, in large part because they have no other source of income. Aguirre, Why Do They Return? Abused Wives in Shelters, 30 J. Nat. Assn. of Social Workers 350, 352 (1985). Returning to one's abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8% of all homicide victims in the United States are killed by their spouse. Mercy & Saltzman, Fatal Violence Among Spouses in the United States, 1976-85, 79 Am. J. Public Health 595 (1989). Thirty percent of female homicide victims are killed by their male partners. Domestic Violence: Terrorism in the Home, Hearing before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 101st Cong., 2d Sess., 3 (1990).
The limited research that has been conducted with respect to notifying one's husband about an abortion, although involving samples too small to be representative, also supports the District Court's findings of fact. The vast majority of women notify their male partners of their decision to obtain an abortion. In many cases in whichmarried women do not notify their husbands, the pregnancy is the result of an extramarital affair. Where the husband is the father, the primary reason women do not notify their husbands is that the husband and wife are experiencing marital difficulties, often accompanied by incidents of violence. Ryan & Plutzer, When Married Women Have Abortions: Spousal Notification and Marital Interaction, 51 J. Marriage & the Family 41, 44 (1989).
This information and the District Court's findings reinforce what common sense would suggest. In well functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from § 3209's notification requirement. Many may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends. These methods of psychological abuse may act as even more of a deterrent to notification than the possibility of physical violence, but women who are the victims of the abuse are not exempt from § 3209's notification requirement. And many women who are pregnant as a result of sexual assaults by their husbands will be unable to avail themselves of the exception for spousal sexual assault, § 3209(b)(3), because the exception requires that the woman have notified law enforcement authorities within 90 days ofthe assault, and her husband will be notified of her report once an investigation begins. § 3128(c). If anything in this field is certain, it is that victims of spousal sexual assault are extremely reluctant to report the abuse to the government; hence, a great many spousal rape victims will not be exempt from the notification requirement imposed by § 3209.
The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.
Respondents attempt to avoid the conclusion that § 3209 is invalid by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that of these women about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of § 3209 are felt by only one percent of the women who obtain abortions. Respondents argue that since some of these women will be able to notify their husbands without adverse consequences or will qualify for one of the exceptions, the statute affects fewer than one percent of women seeking abortions. For this reason, it is asserted, the statute cannot be invalid on its face. See Brief for Respondents 83-86. We disagree with respondents' basic method of analysis.
The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper toprint a candidate's reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.
Respondents' argument itself gives implicit recognition to this principle, at one of its critical points. Respondents speak of the one percent of women seeking abortions who are married and would choose not to notify their husbands of their plans. By selecting as the controlling class women who wish to obtain abortions, rather than all women or all pregnant women, respondents in effect concede that § 3209 must be judged by reference to those for whom it is an actual rather than irrelevant restriction. Of course, as we have said, § 3209's real target is narrower even than the class of women seeking abortions identified by the State: it is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which § 3209 is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion. It is an undue burden, and therefore invalid.
This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. See, e. g., Akron II, 497 U. S., at
; Bellotti v. Baird, 443 U.S. 622
(1979) (Bellotti II); Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 74. Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women.
We recognize that a husband has a "deep and proper concern and interest . . . in his wife's pregnancy and in the growth and development of the fetus she is carrying." Danforth, supra, at 69. With regard to the children he has fathered and raised, the Court has recognized his "cognizable and substantial" interest in their custody. Stanley v. Illinois, 405 U.S. 645, 651-652 (1972); see also Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979); Lehr v. Robertson, 463 U.S. 248 (1983). If this case concerned a State's ability to require the mother to notify the father before taking some action with respect to a living child raised by both, therefore, it would be reasonable to conclude as a general matter that the father's interest in the welfare of the child and the mother's interest are equal.
Before birth, however, the issue takes on a very different cast. It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother's liberty than on the father's. The effect of state regulation on a woman's protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman. Cf. Cruzan v. Director, Missouri Dept. of Health, 497 U. S., at 281. The Court has held that "when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor." Danforth, supra, at 71. This conclusion rests upon the basic nature of marriage and the nature of our Constitution: "[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married orsingle, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U. S., at 453 (emphasis in original). The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.
There was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed. In Bradwell v. Illinois, 16 Wall. 130 (1873), three Members of this Court reaffirmed the common law principle that "a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States." Id., at 141 (Bradley J., joined by Swayne and Field, JJ., concurring in judgment). Only one generation has passed since this Court observed that "woman is still regarded as the center of home and family life," with attendant "special responsibilities" that precluded full and independent legal status under the Constitution. Hoyt v. Florida, 368 U.S. 57, 62 (1961). These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution.
In keeping with our rejection of the common law understanding of a woman's role within the family, the Court held in Danforth that the Constitution does not permit a State to require a married woman to obtain her husband's consent before undergoing an abortion. 428 U. S., at 69. The principles that guided the Court in Danforth should be our guides today. For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife's decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. The women most affected by this law--those who most reasonably fear the consequences of notifying their husbands that they are pregnant--are in the gravest danger.
The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband's interest in the potential life of the child outweighs a wife's liberty, the State could require a married woman to notify her husband before she uses a postfertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband's interest in the fetus' safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband's interest in his wife's reproductive organs. And if a husband's interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify--a requirement of the husband's consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.
Section 3209 embodies a view of marriage consonant with the common law status of married women but repugnant toour present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family. These considerations confirm our conclusion that § 3209 is invalid.
We next consider the parental consent provision. Except in a medical emergency, an unemancipated young woman under 18 may not obtain an abortion unless she and one of her parents (or guardian) provides informed consent as defined above. If neither a parent nor a guardian provides consent, a court may authorize the performance of an abortion upon a determination that the young woman is mature and capable of giving informed consent and has in fact given her informed consent, or that an abortion would be in her best interests.
We have been over most of this ground before. Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure. See, e. g., Akron II, 497 U. S., at
; Hodgson, 497 U. S., at
; Akron I, supra, at 440; Bellotti II, supra, at 643-644 (plurality opinion). Under these precedents, in our view, the one parent consent requirement and judicial bypass procedure are constitutional.
The only argument made by petitioners respecting this provision and to which our prior decisions do not speak is the contention that the parental consent requirement is invalid because it requires informed parental consent. For the most part, petitioners' argument is a reprise of their argument with respect to the informed consent requirement in general, and we reject it for the reasons given above. Indeed, some of the provisions regarding informed consent have particular force with respect to minors: the waiting period, for example, may provide the parent or parents of a pregnant young woman the opportunity to consult with her in private, and to discuss the consequences of her decision in the context of the values and moral or religious principles of their family. See Hodgson, supra, at
Under the recordkeeping and reporting requirements of the statute, every facility which performs abortions is required to file a report stating its name and address as well as the name and address of any related entity, such as a controlling or subsidiary organization. In the case of state funded institutions, the information becomes public.
For each abortion performed, a report must be filed identifying: the physician (and the second physician where required); the facility; the referring physician or agency; the woman's age; the number of prior pregnancies and prior abortions she has had; gestational age; the type of abortion procedure; the date of the abortion; whether there were any pre-existing medical conditions which would complicate pregnancy; medical complications with the abortion; where applicable, the basis for the determination that the abortion was medically necessary; the weight of the aborted fetus; and whether the woman was married, and if so, whether notice was provided or the basis for the failure to give notice. Every abortion facility must also file quarterly reports showing the number of abortions performed broken down by trimester. See 18 Pa. Cons. Stat. §§ 3207, 3214 (1990). In all events, the identity of each woman who has had an abortion remains confidential.
In Danforth, 428 U. S., at 80, we held that recordkeeping and reporting provisions "that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible." We think that under this standard, all the provisions at issue here except that relating to spousal notice are constitutional. Although they do not relate to the State's interest in informing the woman's choice, they do relate to health. The collection of information with respect to actual patients is a vital element of medical research, and so it cannot be said that the requirements serve no purpose other than to make abortions more difficult. Nor do we find that the requirements impose a substantial obstacle to a woman's choice. At most they might increase the cost of some abortions by a slight amount. While at some point increased cost could become a substantial obstacle, there is no such showing on the record before us.
Subsection (12) of the reporting provision requires the reporting of, among other things, a married woman's "reason for failure to provide notice" to her husband. § 3214(a)(12). This provision in effect requires women, as a condition of obtaining an abortion, to provide the Commonwealth with the precise information we have already recognized that many women have pressing reasons not to reveal. Like the spousal notice requirement itself, this provision places an undue burden on a woman's choice, and must be invalidated for that reason.
Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. We invoke it once again to define the freedom guaranteed by the Constitution's own promise, the promise of liberty.
The judgment in No.
It is so ordered.APPENDIX TO OPINION
Selected Provisions of the 1988 and 1989
Amendments to the Pennsylvania
Abortion Control Act of 198218 PA. CONS. STAT. ANN. (1990).
"§ 3203. Definitions.
. . . . .
" `Medical emergency.' " That condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function."
"§ 3205. Informed Consent.
"(a) General Rule. -- No abortion shall be performed or induced except with the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:
"(1)At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of:
"(i)The nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.
"(ii)The probable gestational age of the unborn child at the time the abortion is to be performed.
"(iii)The medical risks associated with carrying her child to term.
"(2)At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician, or a qualified physician assistant, health care practitioner, technician or social worker to whom the responsibility has been delegated by either physician, has informed the pregnant woman that:
"(i)The department publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it.
"(ii)Medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials published by the department.
"(iii)The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted.
"(3)A copy of the printed materials has been pro vided to the woman if she chooses to view these materials.
"(4)The pregnant woman certifies in writing, prior to the abortion, that the information required to be provided under paragraphs (1), (2) and (3) has been provided.
"(b) Emergency. -- Where a medical emergency compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting his judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of major bodily function.
"(c) Penalty. -- Any physician who violates the provisions of this section is guilty of `unprofessional conduct' and his license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L. 457, No. 112), known as the Medical Practice Act of 1985, or their successor acts. Any physician who performs or induces an abortion without first obtaining the certification required by subsection (a)(4) or with knowledge or reason to know that the informed consent of the woman has not been obtained shall for the first offense be guilty of a summary offense and for each subsequent offense be guilty of a misdemeanor of the third degree. No physician shall be guilty of violating this section for failure to furnish the information required by subsection (a) if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient.
"(d) Limitation on Civil Liability. -- Any physician who complies with the provisions of this section may not be held civilly liable to his patient for failure to obtain informed consent to the abortion within the meaning of that term as defined by the act of October 15, 1975 (P.L. 390, No. 111), known as the Health Care Services Malpractice Act."
"§ 3206. Parental Consent.
"(a) General rule. -- Except in the case of a medical emergency or except as provided in this section, if a pregnant woman is less than 18 years of age and not emancipated, or if she has been adjudged an incompetent under 20 Pa. C.S. § 5511 (relating to petition and hearing; examination by court appointed physician), a physician shall not perform an abortion upon her unless, in the case of a woman who is less than 18 years of age, he first obtains the informed consent both of the pregnant woman and of one of her parents; or, in the case of a woman who is incompetent, he first obtains the informed consent of her guardian. In deciding whether to grant such consent, a pregnant woman's parent or guardian shall consider only their child's or ward's best interests. In the case of a pregnancy that is the result of incest, where the father is a party to the incestuous act, the pregnant woman need only obtain the consent of her mother.
"(b) Unavailability of parent or guardian. -- If both parents have died or are otherwise unavailable to the physician within a reasonable time and in a reasonable manner, consent of the pregnant woman's guardian or guardians shall be sufficient. If the pregnant woman's parents are divorced, consent of the parent having custody shall be sufficient. If neither any parent nor a legal guardian is available to the physician within a reasonable time and in a reasonable manner, consent of any adult person standing in loco parentis shall be sufficient.
"(c) Petition to the court for consent. -- If both of the parents or guardians of the pregnant woman refuse to consent to the performance of an abortion or if she elects not to seek the consent of either of her parents or of her guardian, the court of common pleas of the judicial district in which the applicant resides or in which the abortion is sought shall, upon petition or motion, after an appropriate hearing, authorize a physician to perform the abortion if thecourt determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion, and has, in fact, given such consent.
"(d) Court order. -- If the court determines that the pregnant woman is not mature and capable of giving informed consent or if the pregnant woman does not claim to be mature and capable of giving informed consent, the court shall determine whether the performance of an abortion upon her would be in her best interests. If the court determines that the performance of an abortion would be in the best interests of the woman, it shall authorize a physician to perform the abortion.
"(e) Representation in proceedings. -- The pregnant woman may participate in proceedings in the court on her own behalf and the court may appoint a guardian ad litem to assist her. The court shall, however, advise her that she has a right to court appointed counsel, and shall provide her with such counsel unless she wishes to appear with private counsel or has knowingly and intelligently waived representation by counsel."
"§ 3207. Abortion Facilities.
. . . . .
"(b) Reports. -- Within 30 days after the effective date of this chapter, every facility at which abortions are performed shall file, and update immediately upon any change, a report with the department, containing the following information:
"(1)Name and address of the facility.
"(2)Name and address of any parent, subsidiary or affiliated organizations, corporations or associations.
"(3)Name and address of any parent, subsidiary or affiliated organizations, corporations or associations having contemporaneous commonality ofownership, beneficial interest, directorship or officership with any other facility.
The information contained in those reports which are filed pursuant to this subsection by facilities which receive State appropriated funds during the 12-calendar month period immediately preceding a request to inspect or copy such reports shall be deemed public information. Reports filed by facilities which do not receive State appropriated funds shall only be available to law enforcement officials, the State Board of Medicine and the State Board of Osteopathic Medicine for use in the performance of their official duties. Any facility failing to comply with the provisions of this subsection shall be assessed by the department a fine of $500 for each day it is in violation hereof."
"§ 3208. Printed Information.
"(a) General Rule. -- The department shall cause to be published in English, Spanish and Vietnamese, within 60 days after this chapter becomes law, and shall update on an annual basis, the following easily comprehensible printed materials:
"(1)Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer and a description of the manner, including telephone numbers, in which they might be contacted, or, at the option of the department, printed materials including a toll free 24-hour a day telephone number which may be called to obtain, orally, such a list and description of agencies in the locality of the caller and of theservices they offer. The materials shall provide information on the availability of medical assistance benefits for prenatal care, childbirth and neonatal care, and state that it is unlawful for any individual to coerce a woman to undergo abortion, that any physician who performs an abortion upon a woman without obtaining her informed consent or without according her a private medical consultation may be liable to her for damages in a civil action at law, that the father of a child is liable to assist in the support of that child, even in instances where the father has offered to pay for an abortion and that the law permits adoptive parents to pay costs of prenatal care, childbirth and neonatal care.
"(2)Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two week gestational increments from fertilization to full term, including pictures representing the development of unborn children at two week gestational increments, and any relevant information on the possibility of the unborn child's survival; provided that any such pictures or drawings must contain the dimensions of the fetus and must be realistic and appropriate for the woman's stage of pregnancy. The materials shall be objective, non judgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, and the medical risks commonly associated with carrying a child to term.
"(b) Format. -- The materials shall be printed in a typeface large enough to be clearly legible.
"(c) Free distribution. -- The materials required under this section shall be available at no cost from the department upon request and in appropriate number to any person, facility or hospital."
"§ 3209. Spousal Notice.
"(a) Spousal notice required. -- In order to further the Commonwealth's interest in promoting the integrity of the marital relationship and to protect a spouse's interests in having children within marriage and in protecting the prenatal life of that spouse's child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion. The statement shall bear a notice that any false statement made therein is punishable by law.
"(b) Exceptions. -- The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following:
"(1)Her spouse is not the father of the child.
"(2)Her spouse, after diligent effort, could not be located.
"(3)The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.
"(4)The woman has reason to believe that the furnishing of notice to her spouse is likely to resultin the infliction of bodily injury upon her by her spouse or by another individual.
Such statement need not be notarized, but shall bear a notice that any false statements made therein are punishable by law.
"(c) Medical emergency. -- The requirements of subsection (a) shall not apply in case of a medical emergency.
"(d) Forms. -- The department shall cause to be published, forms which may be utilized for purposes of providing the signed statements required by subsections (a) and (b). The department shall distribute an adequate supply of such forms to all abortion facilities in this Commonwealth.
"(e) Penalty; civil action. -- Any physician who violates the provisions of this section is guilty of `unprofessional conduct,' and his or her license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L. 457, No. 112), known as the Medical Practice Act of 1985, or their successor acts. In addition, any physician who knowingly violates the provisions of this section shall be civilly liable to the spouse who is the father of the aborted child for any damages caused thereby and for punitive damages in the amount of $5,000, and the court shall award a prevailing plaintiff a reasonable attorney fee as part of costs. "
"§ 3214. Reporting.
"(a) General rule. -- For the purpose of promotion of maternal health and life by adding to the sum of medical and public health knowledge through the compilation of relevant data, and to promote the Commonwealth's interest in protection of the unborn child, a report of each abortion performed shall be made to the department on formsprescribed by it. The report forms shall not identify the individual patient by name and shall include the following information:
"(1)Identification of the physician who performed the abortion, the concurring physician as required by section 3211(c)(2) (relating to abortion on unborn child of 24 or more weeks gestational age), the second physician as required by section 3211(c)(5) and the facility where the abortion was performed and of the referring physician, agency or service, if any.
"(2)The county and state in which the woman resides.
"(3)The woman's age.
"(4)The number of prior pregnancies and prior abortions of the woman.
"(5)The gestational age of the unborn child at the time of the abortion.
"(6)The type of procedure performed or prescribed and the date of the abortion.
"(7)Pre existing medical conditions of the woman which would complicate pregnancy, if any, and if known, any medical complication which resulted from the abortion itself.
"(8)The basis for the medical judgment of the physician who performed the abortion that the abortion was necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman, where an abortion has been performed pursuant to section 3211(b)(1).
"(9)The weight of the aborted child for any abortion performed pursuant to section 3211(b)(1).
"(10)Basis for any medical judgment that a medical emergency existed which excused the physician from compliance with any provision of this chapter.
"(11)The information required to be reported under section 3210(a) (relating to determination of gestational age).
"(12)Whether the abortion was performed upon a married woman and, if so, whether notice to her spouse was given. If no notice to her spouse was given, the report shall also indicate the reason for failure to provide notice.
. . . . .
"(f) Report by facility. -- Every facility in which an abortion is performed within this Commonwealth during any quarter year shall file with the department a report showing the total number of abortions performed within the hospital or other facility during that quarter year. This report shall also show the total abortions performed in each trimester of pregnancy. Any report shall be available for public inspection and copying only if the facility receives State appropriated funds within the 12-calendar month period immediately preceding the filing of the report. These reports shall be submitted on a form prescribed by the department which will enable a facility to indicate whether or not it is receiving State appropriated funds. If the facility indicates on the form that it is not receivingState appropriated funds, the department shall regard its report as confidential unless it receives other evidence which causes it to conclude that the facility receives State appropriated funds."
Pennsylvania Ass'n, Ret'd Child. v. Commonwealth of Pa ...
Pennsylvania Ass'n, Ret'd Child. v. Commonwealth of Pa., 343 F. Supp. 279 (E.D. Pa. 1972) case opinion from the U.S. District Court for the Eastern District of PennsylvaniaPennsylvania Ass'n, Ret'd Child. v. Commonwealth of Pa., 343 F. Supp. 279 (E.D. Pa. 1972) case opinion from the U.S. District Court for the Eastern District of Pennsylvania.
U.S. District Court for the Eastern District of Pennsylvania - 343 F. Supp. 279 (E.D. Pa. 1972)
May 5, 1972
*280 *281 Thomas Gilhool, Philadelphia, Pa., for plaintiffs.
Edward A. Weintraub, Deputy Atty. Gen., Harrisburg, Pa., for Commonwealth of Pennsylvania and all named defendants.
William B. Arnold, Lancaster, Pa., for Lancaster-Lebanon Intermediate Unit.
John D. Killian, Harrisburg, Pa., for Pennsylvania Association of Private Schools for Exceptional Children.
Before ADAMS, Circuit Judge, MASTERSON and BRODERICK, District Judges.
OPINION, ORDER AND INJUNCTION
MASTERSON, District Judge.
This civil rights case, a class action, was brought by the Pennsylvania Association for Retarded Children and the parents of thirteen individual retarded children on behalf of all mentally retarded *282 persons between the ages 6 and 21 whom the Commonwealth of Pennsylvania, through its local school districts and intermediate units, is presently excluding from a program of education and training in the public schools. Named as defendants are the Commonwealth of Pennsylvania, Secretary of Welfare, State Board of Education and thirteen individual school districts scattered throughout the Commonwealth. In addition, plaintiffs have joined all other school districts in the Commonwealth as class defendants of which the named districts are said to be representative.
The exclusions of retarded children complained of are based upon four State statutes: (1) 24 Purd.Stat. Sec. 13-1375 which relieves the State Board of Education from any obligation to educate a child whom a public school psychologist certifies as uneducable and untrainable. The burden of caring for such a child then shifts to the Department of Welfare which has no obligation to provide any educational services for the child; (2) 24 Purd.Stat. Sec. 13-1304 which allows an indefinite postponement of admission to public school of any child who has not attained a mental age of five years; (3) Purd.Stat. Sec. 13-1330 which appears to excuse any child from compulsory school attendance whom a psychologist finds unable to profit therefrom and (4) 24 Purd.Stat. Sec. 13-1326 which defines compulsory school age as 8 to 17 years but has been used in practice to postpone admissions of retarded children until age 8 or to eliminate them from public schools at age 17.
*283 Plaintiffs allege that Sections 1375 (uneducable and untrainable) and 1304 (mental age of 5 years) are constitutionally infirm both on their faces and as applied in three broad respects. First, plaintiffs argue that these statutes offend due process because they lack any provision for notice and a hearing before a retarded person is either excluded from a public education or a change is made in his educational assignment within the public system. Secondly, they assert that the two provisions violate equal protection because the premise of the statute which necessarily assumes that certain retarded children are uneducable and untrainable lacks a rational basis in fact. Finally, plaintiffs contend that because the Constitution and laws of Pennsylvania guarantee an education to all children, these two sections violate due process in that they arbitrarily and capriciously deny that given right to retarded children. Plaintiffs' third contention also raises a pendent question of state law, that is, whether the Pennsylvania Constitution as well as other laws of the Commonwealth already afford them a right to public education.
It is not alleged that Sections 1330 (excusal from compulsory attendance) or 1326 (definition of compulsory school age) are facially defective under the United States Constitution. Rather, plaintiffs contend that these provisions violate due process (lack of a prior hearing) and equal protection (no basis in fact to support exclusion) as applied to retarded children.
In addition, plaintiffs contend that the clear intent of Section 1330 is to forgive parents from any criminal penalty for what otherwise would be a violation of compulsory attendance requirements, and consequently, use of this provision to exclude retarded children constitutes an impermissible misinterpretation of state law. Likewise, plaintiffs *284 assert that Section 1326 relates only to the obligation of parents (under penalty of criminal sanctions) to place their children in public schools, and its use to exclude retarded children contravenes the obvious meaning of the statute. To place these questions of state law before us, plaintiffs advance the principle of pendent jurisdiction.
Plaintiffs predicate jurisdiction of this court upon 28 U.S.C. § 1343(3) and their causes of action under 42 U.S. C. §§ 1981 and 1983. By way of relief, they seek both a declaratory judgment that the statutes are unconstitutional and a preliminary and permanent injunction against the enforcement of these laws by the defendants. On the basis of these pleadings, it was concluded that the case raised important and substantial federal questions requiring consideration by a three judge court under 28 U.S.C. § 2281.
Shortly after the appointment of the three judge Court by the Chief Judge of the Court of Appeals, we entered an order fixing June 15, 1971 as the hearing date on plaintiffs' motion for a preliminary injunction and June 11, 1971 as the date for prehearing conference. Between the date of our order and June 11th, however, the parties asked for an opportunity to settle amicably at least that part of the case which related to the plaintiffs' demand for due process hearings before exclusion from a public school education or a change in educational assignment within the public system is ordered. To afford them such an opportunity, we vacated our earlier order and postponed the hearing date until August 12th, 1971 and set August 2nd, 1971 as the final pre-hearing conference date.
In the interim, the parties agreed upon a Stipulation which basically provides that no child who is mentally retarded or thought to be mentally retarded can be assigned initially (or re-assigned) to either a regular or special educational status, or excluded from a public education without a prior recorded *285 hearing before a special hearing officer. At that hearing, parents have the right to representation by counsel, to examine their child's records, to compel the attendance of school officials who may have relevant evidence to offer, to cross-examine witnesses testifying on behalf of school officials and to introduce evidence of their own. On June 18th, this Court entered an interim order approving the Stipulation.
In mid-August, as scheduled, we heard plaintiffs' evidence relating to both the due process and equal protection claims, although the evidence was particularly directed toward the unresolved question of equal protection. Following testimony by four eminent experts in the field of education of retarded children,[14a] the parties once again expressed a desire to settle the equal protection dispute by agreement rather than judicial determination. We then suspended further testimony in order to afford the parties time to resolve the remaining issues.
On October 7th, 1971 the parties submitted a Consent Agreement to this Court which, along with the June 18th Stipulation, would settle the entire case. Essentially, this Agreement deals with the four state statutes in an effort to eliminate the alleged equal protection problems. As a proposed cure, the defendants agreed, inter alia, that since "the Commonwealth of Pennsylvania has undertaken to provide a free public education for all of its children between the ages of six and twenty-one years" (Paragraph 5), therefore, "it is the Commonwealth's obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child's capacity." (Paragraph 7.) To effectuate this result without conceding the unconstitutionality of the foregoing statutes or upsetting the existing statutory scheme, the Attorney General of the Commonwealth agreed to issue Opinions declaring in substance that: (1) Section 1375 means that "insofar as the Department of Public Welfare is charged to arrange for the care, training and supervision of a child certified to it, the Department of Public Welfare must provide a program of education and training appropriate to the capacities of that child" (Paragraph 37); (2) Section 1304 means "only that a school district may refuse to accept into or retain in the lowest grade of the regular primary school [as contrasted with a special primary school] any child *286 who has not attained a mental age of five years" (Paragraph 10); (3) Section 1330(2) means "only that a parent may be excused from liability under the compulsory attendance provisions of the School Code when, with the approval of the local school board and the Secretary of Education and the finding by an approved school psychologist, the parent elects to withdraw the child from attendance; Section 1330(2) may not be used by defendants, contrary to parents' wishes, to terminate or in any way deny access to a free public program of education and training to any mentally retarded child." (Paragraph 20); and (4) Section 1326 means "only that parents of a child have a compulsory duty while the child is between eight and seventeen years of age to assure his attendance in a program of education and training; and Section 1326 does not limit the ages between which a child must be granted access to a free public program of education and training [and may not be used as such]." (Paragraph 16.) Thus, possible use of these four provisions to exclude (or postpone) retarded children from a program of public education was effectively foreclosed by this Agreement. And on October 22, 1971, the Attorney General issued these agreed upon Opinions.
In addition, the Consent Agreement addresses itself to three other matters involving the education of retarded children which the plaintiffs did not specifically raise in their pleadings. First, in the area of pre-school education, the defendants agreed to cease applying 24 Purd.Stat. Sec. 13-1371 so as to deny retarded children below the age of six access to a free pre-school program of education and training appropriate to their learning capacities whenever the school districts provide such a pre-school program to normal children below the age of six. The Attorney General again issued an Opinion so interpreting Section 1371(1).
Next, the defendants agreed to cease applying 24 Purd.Stat. Sec. 13-1376 so as to deny tuition or tuition maintenance to any mentally retarded person. Basically, Section 1376 provides for the payment of tuition to private schools by the Commonwealth and local school districts (75% and 25% respectively) where, with the approval of the Department of Education, a child afflicted with blindness, deafness, cerebral palsy, brain damage or muscular dystrophy is attending a private school. Prior to the Consent Agreement, this statute was interpreted not to apply to retarded children unless they also suffered from one of *287 the maladies mentioned above. Consequently, if the public sector excluded a retarded child (who lacked a multiple disability) under Section 1375, 1304, 1330 or 1326, his parents had to assume the full financial burden of educating and training him in a private school. Often, because of the special care required, this burden assumed formidable proportions. Thus, the Attorney General issued an Opinion "construing the term `brain damage' as used in Section 1376 . . . so as to include thereunder all mentally retarded persons, thereby making available to them tuition for day school and tuition and maintenance for residential school . . ." (Paragraph 27).
Finally, the defendants agreed to cease applying 24 Purd.Stat. Sec. 13-1372(3) so as "to deny [mentally retarded children] homebound instruction under that Section . . . merely because no physical disability accompanies the retardation or because retardation is not a short-term disability." (Paragraph 31.) Once again, the Attorney General issued an Opinion so construing this provision.
The lengthy Consent Agreement concludes by stating that "[e]very retarded person between the ages of six and twenty-one shall be provided access to a free public program of education and training appropriate to his capacities as soon as possible but in no event later *288 than September 1, 1972." (Paragraph 42.) To implement the agreed upon relief and assure that it would be extended to all members of this class, Dennis E. Haggerty, Esq., a distinguished member of the Pennsylvania Bar who has devoted much of his energy to the welfare of retarded children, and Dr. Herbert Goldstein, an eminent expert in the education of retarded children who is Professor and Director of the Curriculum Research and Development Center in Mental Retardation at the Ferkaus Graduate School of Humanities and Social Sciences, Yeshiva University, were appointed Masters at the expense of the Commonwealth. (Paragraph 45). Next, the Consent Agreement charges defendants with the duty within 30 days, to formulate and submit to the Masters a plan to locate, evaluate and give notice to all members of the plaintiff class. (Paragraph 47). Finally, and perhaps most importantly, the Agreement states that:
Thus, if all goes according to plan, Pennsylvania should be providing a meaningful program of education and training to every retarded child in the Commonwealth by September, 1972.
We then entered an interim order, without prejudice, pending notice to the class of plaintiffs and the class of defendants, which temporarily enjoined the defendants from applying (1) 24 Purd.Stat. Sections 13-1375, 1304, 1330 (2), and 1371(1) "so as to deny any mentally retarded child access to a free public program of education and training;" (2) Section 13-1376 "so as to deny tuition or tuition and maintenance to any mentally retarded person except on the same terms as may be applied to other exceptional children, including brain damaged children generally;" and (3) Section 13-1372(3) "[so as to deny] homebound instruction to any mentally retarded person merely because no physical disability accompanies the retardation or because it is not a short-term disability."
Next, in accordance with Rule 23(e), F.R.Civ.P., a hearing was scheduled on any objections to the proposed settlement Agreements. We instructed the named plaintiffs and defendants to notify *289 all remaining members of their respective classes (primarily by newspaper in the case of plaintiffs and by direct mailing for the defendants). Proper notice went out to the plaintiffs and only one appeared at the hearing. None of the remaining defendants appeared, however, because the Commonwealth neglected to send them any notice. Consequently, we ordered that new notice be given, and rescheduled the hearing for November 12, 1971.
Notice of that hearing went out about October 29th, and Philip Salkin, Esq. and William B. Arnold, Esq. appeared and filed objections on behalf of the Montgomery County Intermediate Unit and the Lancaster-Lebanon Intermediate Unit respectively. In addition, John D. Killian, Esq. appeared and objected for the Pennsylvania Association of Private Schools for Exceptional Children.
Both attorneys for the Intermediate Units argued to the Court that the notice they received was inadequate to prepare their cases against both the Stipulation of June 18th and the Consent Agreement of October 7th. They also argued that many districts and intermediate units failed to appear because they did not have enough time to analyze and react to the two rather lengthy and intricate proposals. The attorneys pointed out that since most school boards meet on the first week of each month, these bodies would not even have an opportunity to review the documents until after December 1st.
To extend every element of fairness in this important litigation, we ordered that a second individual notice be sent to all 29 intermediate units and 569 school districts, extending them an opportunity to object and be heard at yet another hearing on December 15, 1971. Following this second notice, the Allegheny Intermediate Unit No. 3, Chester County Intermediate Unit No. 24, Schuylkill Intermediate Unit No. 29, Delaware County Intermediate Unit, and 9 individual school districts within these four Units joined the opponents of the settlement.
On December 15th and 16th, we heard from the objectors and their witnesses. Essentially, the complaining defendants challenged parts of the June 18th Stipulation (dealing with due process hearings) which they claimed were unnecessary, burdensome and administratively unwieldy and impractical. The wisdom of a few minor portions of the October 7th Consent Agreement was also questioned. Apart from questioning certain details of the Agreements, the objectors challenged our jurisdiction over the case and over themselves as purported members of a class. Finally, they raised the issue of abstention.
Following this testimony, the proponents of the settlement met with the objectors in an effort to modify the two documents so as to satisfy every one involved. Intensive negotiations ensued. Final legal argument was scheduled for January 31, 1972.
At the request of the litigants, we postponed final argument until February *290 7, 1972. On that date, only one defendant remainedthe Lancaster-Lebanon Intermediate Unit. All others had withdrawn their objections because subsequent modifications of the Stipulation and Consent Agreement by the proponents satisfied their complaints. The Pennsylvania Association of Private Schools for Exceptional Children (which is not a member of either class) also expressed dissatisfaction at that hearing.
The arguments presented by Lancaster-Lebanon are essentially legal, that is, the Intermediate Unit does not question the fairness of the proposed settlement to the members of either class, rather it seeks to destroy the Agreements altogether by raising the issue of jurisdiction as well as the oft-mentioned, but seldom fully understood, issue of abstention.
A. Controversy Under Article III
Preliminarily, the issue of whether the Lancaster-Lebanon Intermediate Unit can even raise jurisdictional issues at a hearing on the proposed settlement of a class action under Rule 23(e) arises. Theoretically, the scope of such a hearing is limited to an inquiry into the fairness of the settlement. See Moore's Federal Practice, § 23.80(4). Since jurisdictional issues relate to the very power of this court to hear this case and bind the parties, however, we think that the objectors must be permitted to raise them.
Although not particularly pressed at final oral argument (which was devoted primarily to absention), Lancaster-Lebanon has raised two distinct jurisdictional issues throughout this litigation. First, Lancaster-Lebanon charges that there is no controversy before this court within the meaning of Article III, Sec. 2 of the United States Constitution because of alleged collusion and total agreement on the merits between the plaintiffs and the Commonwealth in conducting this suit. Secondly, the Intermediate Unit contends that this Court lacks jurisdiction to bind it to any Consent Agreement because the Lancaster-Lebanon Unit received no notice and had no opportunity to appear when the suit was first instituted. (See Section I. B., infra.). We find both contentions without merit.
Undoubtedly, if two litigants commence a suit with the same goals in mind, no controversy exists to give the district court jurisdiction as required by Article III, Sec. 2. See Moore v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47, 91 S. Ct. 1292, 28 L. Ed. 2d 590 (1971); United States v. Johnson, 319 U.S. 302, 63 S. Ct. 1075, 87 L. Ed. 1413 (1943); Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246 (1911). But a different case arises when litigants begin a suit as adversaries, and then at some later point decide to compromise the dispute. In such an instance, the court does not ipso facto lose jurisdiction over the matter for want of a controversy. Cf. Dixon v. Attorney General of Com. of Pa., 325 F. Supp. 966 (E.D.Pa.1971) (Biggs, Circuit Judge). This latter rule flows from common sense as well as the fact that even in preparing a compromise, the parties may remain adversaries within the meaning of Article III.
*291 The record in this case clearly shows that the Commonwealth did not collaborate with the plaintiffs in bringing or conducting this suit. Indeed, from January until June, 1971, the Attorney General and the thirteen named school districts vigorously contested every phase of plaintiffs' case. First, the Commonwealth filed motions to dismiss which were accompanied by elaborate briefs. The defendants denied jurisdiction, denied that a claim had been stated upon which relief might be granted, denied that plaintiffs had raised a substantial federal question, and questioned whether PARC had standing to sue. On the merits, they asserted that all of the statutes attacked were founded upon rational bases. Subsequently, the defendants filed a 13 page brief opposing plaintiffs' motion to convene a three-judge court. Moreover, in discovery, the defendants resisted the production of certain documents and the parties had to appeal to this Court for resolution of the dispute.
In June, 1971, it is true, the parties agreed to settle the issue of due process hearings. Even so, the defendants did not give the plaintiffs carte blanche to draw up any proposal of their choosing; rather the arts of negotiation and compromise were employed, with Commonwealth experts in the field of education also taking part in the discussions.
Despite negotiations on this front, the defendants steadfastly adhered to their original position on plaintiffs' equal protection claims. Indeed, it was not until after a day of testimony from four distinguished experts that the Commonwealth agreed to relent on this issue as well. Far from an indication of collusion, however, the Commonwealth's willingness to settle this dispute reflects an intelligent response to overwhelming evidence against their position.
Once the compromise was prepared, of course, plaintiffs and the named defendants shared identical interests in seeking approval of the settlement. Nevertheless, because these defendants refused to concede the unconstitutionality of the statutes and continued to enforce them, the parties remained adversaries on the constitutional issues which are critical to our jurisdiction. Hence, we conclude that a controversy exists under Article III, Sec. 2.
B. Over the Parties
Next, Lancaster-Lebanon argues that it is not bound by these Consent Agreements or the Injunction because this Court lacks jurisdiction, not necessarily over the subject matter, but over it as a party. The Intermediate Unit predicates this assertion upon the concept that under the Due Process Clause, notice at the commencement of the litigation constitutes a prerequisite to a court's jurisdiction over the parties. As applied to the facts of this case, however, we disagree.
We begin by holding that the defendants constitute a class under Rule 23(B) (1) (B), F.R.Civ.P. This section is appropriate because, as a practical matter, once the issues are decided against one school district within an intermediate unit, or one intermediate unit within the Commonwealth all other districts or intermediate units will ultimately be bound by the result. In other words, "adjudications with respect to individual members of the class [would] as a practical matter be dispositive of the interests *292 of the other members not parties to the adjudication . . ." Rule 23(b) (1) (B). This result follows because (1) intermediate units have an obligation to coordinate the education of exceptional children where member school districts are unable to sustain individual programs, and (2) the Commonwealth, for reasons of economy and administration, must necessarily maintain a uniform set of rules and regulations governing the responsibilities of all school districts and intermediate units within the state.
The notice requirements for a (b) (1) class are set forth in Rule 23(d) (2) which provides as follows:
Under this rule, notice of the litigation to members of the class is apparently discretionary, and "[i]n the degree that there is cohesiveness or unity in the class and the representation is effective, the need for notice to the class will tend toward a minimum." Indeed, most courts have held that where a class is adequately represented, no notice of the suit need be given under the Due Process Clause in order to bind all members of the class. See Management T. V. Sys. Inc. v. National Football League, 52 F.R.D. 162 (E.D.Pa.1971); Northern Natural Gas Co. v. Grounds, 92 F. Supp. 619.
But we need not go this far, because the due process issue presented here is significantly different. In this case, the Lancaster-Lebanon Unit, and all 29 other intermediate units and 569 school districts received two notices of this proceeding and two opportunities to appear before this Court (November 12th and December 15th) prior to any final judgment on the fairness of the settlement proposals. And at these hearings, the defendants had an opportunity to recall any expert witness who testified at the August 12th hearing (at which the objectors were not present) for purposes of cross examination. Yet the defendants declined this invitation. In addition, we allowed them an opportunity to present contrary evidence on the merits, and the objecting defendants did produce the testimony which they felt was relevant. All then rested on the record. Since the defendants had an adequate notice to appear and a meaningful opportunity to present evidence before we rendered final judgment on the settlement, we hold that the objecting defendants were afforded every element of procedural due process. See Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965).
Further, we are satisfied that the Attorney General adequately represented the interests of all the defendants before the objectors entered the case. To the extent that inadequate representation *293 during the early stages of litigation might constitute a denial of due process, no such denial occurred in this case. By express agreement of counsel, the Attorney General assumed the arduous task of defending this action on behalf of the thirteen named school districts as well as the named officials. And the interests of these named school districts fairly reflected the interests of all school districts in the Commonwealth. Hence, the requirement that the class representatives not have interests antagonistic to those of other members of the class whom they are representing was satisfied.
We have already reviewed the actions of the Attorney General in defending this case. And while conducting their defense, the Commonwealth kept the named parties fully informed of the progress of the litigation and advised them of the content of the proposed settlements. Considering these facts, we reject Lancaster-Lebanon's attacks upon our jurisdiction over the parties.
C. Over the Subject Matter
Although no party questions the quality of plaintiffs' constitutional claims, it is basic constitutional law that federal district courts cannot acquire jurisdiction over the subject matter of a dispute by consent. Rather our jurisdiction (power) necessarily depends upon the United States Constitution and Acts of Congress. For this reason, consensus of the parties cannot interfere with our fundamental obligation to act only where the Constitution and Congress permit. Cf. Sibron v. New York, 392 U.S. 40, 58, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); Young v. United States, 315 U.S. 257, 258-259, 62 S. Ct. 510, 86 L. Ed. 832 (1942). Consequently, we conclude that this court has a constitutional obligation to examine the record independently and satisfy ourselves that plaintiffs' claims are not "wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682-683, 66 S. Ct. 773, 90 L. Ed. 939 (1946).
Such an inquiry becomes particularly important in the case of these defendants because we have entered an injunction which, by its terms, binds all school districts and intermediate units in the Commonwealth. Moreover, this injunction affects the enforcement of some half-dozen statutes by state officers. The injunctive power of this court must not be used lightly, especially when it operates against state statutes and officers.
We begin with the contention that due process requires a hearing before retarded children may be denied a public education. It is not disputed that prior to this suit, parents of retarded children who are plaintiffs were not afforded a hearing or, in many instances, even notice of their child's exclusion from public school. For example, the parents of David Tupi, a retarded child, were never officially informed of the decision to exclude him from school. Rather they were only made aware of the situation when the school bus which regularly brought him to school failed to show up. Such crass and summary treatment of these children becomes suspect, we think, because of the stigma which our society unfortunately attaches to the label of mental retardation. Dr. Goldberg *294 testified at length concerning the historical roots of the stigma.
Organized efforts to educate the mentally retarded began about 1848 with the establishment of residential centers which were geared toward preparing mentally retarded individuals for a greater contribution to society as well as sheltering these individuals from a hostile society. About 1900, special education classes for the mentally retarded were started in public schools. These classes were originally denominated "opportunity classes," which indicated that the child was merely waiting somewhere to join the mainstream of the school life.
But Dr. Goldberg stated that in the next decade:
Experts agree that it is primarily the school which imposes the mentally-retarded label and concomitant stigmatization upon children, either initially or later on through a change in educational assignment. This follows from the fact that the school constitutes the first social institution with which the child comes into contact.
Not only is the school the institution which normally imposes the stigma; sometimes, and perhaps quite often, a child is incorrectly labeled. A recent study of 378 educable mentally retarded students from 36 independent school districts in the five county Greater Philadelphia Area found that "the diagnosis for 25% of the youngsters found in classes for the [educable mentally] retarded may be considered erroneous. An additional 43% may be questioned." The authors conclude: "[O]ne cannot help but be concerned about the consequences of subjecting these children to the `retarded' curriculum . . . . The stigma of bearing the label `retarded' is bad enough, but to bear the label when placement is questionable or outright erroneous is an intolerable situation."
In the recent case of Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971), the United States Supreme Court considered the necessity of a due process hearing before the state stigmatizes any citizen. There the police, without notice to her or a prior hearing, had posted a notice in all retail liquor establishments forbidding sales to Mrs. Constantineau because of her "excessive drinking." The Court wrote:
Considering just Constantineau and the evidence presented here, we are convinced that the plaintiffs have established a colorable claim under the Due Process Clause.
*296 Our jurisdiction over plaintiffs' equal protection claims also stands on firm ground. Without exception, expert opinion indicates that:
Despite this evidence and despite the fact that Pennsylvania provides an education to most children, the State's 1965 Pennsylvania Mental Retardation Plan estimates that while 46,000 school age retarded children were enrolled in public schools, another 70,000 to 80,000 retarded children between the ages of 5 and 21 were denied access to any public education services in schools, home or day care or other community facilities, or state residential institutions (C.M.R.P. at 4, 92, 93, 142).
Because of an absence of adequate resources, facilities and teachers as well as the lack of a structured plan, even those whom the State serves in its institutions (i. e., residential centers, hospitals, etc.) do not always benefit. For example, Dr. Edward R. Goldman, Commissioner of the Office of Mental Retardation, Department of Welfare, testified that there are presently 4,159 children of school age in state institutions. But only 100 of these children are in a full program of education and training; 1,700 are in partial but inadequate programs, and 3,259 are in no program of any kind.*297 Moreover, the 1965 Pennsylvania Mental Retardation Plan reports that because of a lack of space, the State housed 900 mentally retarded persons at Dallas State Correction Institution, 3,462 at State mental hospitals and 104 in Youth Development Centers. And:
Finally, the Report concludes:
With these facts in mind, we turn to plaintiffs' equal protection argument. Plaintiffs do not challenge the separation of special classes for retarded children from regular classes or the proper assignment of retarded children to special classes. Rather plaintiffs question whether the state, having undertaken to provide public education to some children (perhaps all children) may deny it to plaintiffs entirely. We are satisfied that the evidence raises serious doubts (and hence a colorable claim) as to the existence of a rational basis for such exclusions. See, e. g., Brown v. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955).
One further jurisdictional matter remains. Plaintiffs' complaint contains two pendent state law claims which the Consent Agreement and our Injunction encompass. We find that, to the extent these claims involve distinct non-federal claims, this Court has jurisdiction over them because "[t]he state and federal claims . . . derive from a common nucleus of operative fact" and they are such that "[a plaintiff] would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966). Compare Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933). On the other hand, to the extent that these claims emanate from unconstitutional results obtained by the improper use of statutes which themselves are not unconstitutional, plaintiffs, of course, have made out a federal claim. See 42 U.S.C. § 1983.
*298 II. ABSTENTION
Lancaster-Lebanon vigorously contends that we should abstain, and stay our hand until the Pennsylvania courts decide whether the Constitution and laws of Pennsylvania already afford plaintiffs the rights they seek to establish in this federal suit. For the reasons discussed below, which are somewhat unique in the history of the doctrine of abstention, we decline to abstain in this case.
We begin with the cardinal, yet often forgotten proposition that abstention is an equitable, not a jurisdictional doctrine. See, e. g., Railroad Com'n v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). Hence, sound discretion within the confines of judicial precedent controls our decision.
Preliminarily, we must once again consider whether Lancaster-Lebanon can even raise this doctrine at a hearing on the proposed settlement of a class action. As previously indicated, such hearings are traditionally limited to the issues of the fairness of the proposed settlement or other matters expressly involving Rule 23. And an opportunity to object is extended primarily so that those who appear might offer the court, which acts as a guardian to absent class members, advice on the worth of the settlement agreement. Moreover, since the theoretical basis of class actions assumes that all members are bound by the legal strategies of those representing the class (provided such representation is adequate), we think that Rule 23 precludes Lancaster-Lebanon from raising the issue of abstention. Nevertheless, because abstention involves important considerations of federal-state relations, we have decided to entertain it in this case.
The doctrine of abstention applies in narrow circumstances where a decision concerning a question of state law might be adequate to dispose of the case or may change the precise nature of the constitutional questions presented, and the answer to the state question involves unclear state law. See Askew v. Hargrave, 401 U.S. 476, 91 S. Ct. 856, 28 L. Ed. 2d 200 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970); Harman v. Forssenius, 380 U.S. 528, 534, 85 S. Ct. 1177, 14 L. Ed. 2d 50 (1965); Railroad Com'n of Texas v. Pullman Co., supra; Gere v. Stanley, supra. The rationale behind this rule is two-fold. First, by abstaining, the federal court avoids needless, or at least, premature constitutional adjudication. Secondly, it avoids needless friction in federal-state relations. This second consideration becomes particularly weighty where a matter of paramount interest to the state, requiring local expertise to resolve, is involved. See, e. g., Railroad Com'n of Texas v. Pullman, supra; Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943).
Where there is no question of unclear state law, however, a federal court may not abstain merely because (1) state courts are as competent a forum to decide federal questions as are the federal courts, See Wisconsin v. Constantineau, supra; Zwickler v. Koota, 389 U.S. 241, 248, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); Gere v. Stanley, supra, 453 F.2d at 208-209; or (2) paramount state interests are challenged in the suit, See, King-Smith v. Aaron, 455 F.2d 378 n. 3 (3rd Cir. 1972); Garvin v. Rosenau, 455 F.2d 233 (6th Cir. 1972). With this view of abstention in mind, we turn to the facts of this case.
It is easiest to understand the abstention issue if we first assume that no Consent Agreement had been presented to the Court. In that event, plaintiffs' complaint would have divided neatly into two partsdue process (procedural) and equal protection (substantive).
As to the due process claim, the statutes challenged are clear; they simply make no provision for hearings for retarded children prior to exclusion from school or a change in educational assignment. Consequently, it would have been improper for us to abstain on this issue. See Wisconsin v. Constantineau, supra.
*299 The equal protection claim, however, requires closer scrutiny. The statutes challenged under this Clause (1375 and 1304) as well as those challenged under pendent state law (1330 and 1326) are all unclear, and as yet, uninterpreted by Pennsylvania Courts. Indeed, the very fact that the Attorney General of the Commonwealth was able to construe these statutes so as to eliminate the alleged equal protection claims dispels any doubt about whether the statutes are capable of saving interpretations. Moreover, Article III, Section 14 of the Pennsylvania Constitution may already afford plaintiffs their requested relief. Undoubtedly proper judicial procedure requires that a federal court allow the state courts to face these state law issues before allowing an attack on federal constitutional grounds in the federal court. Hence, assuming that no Consent Agreement was presented, we would have been faced with an unusual situation divisible abstentionhalf of the case commanding abstention and the other half requiring a decision. Under these circumstances, primarily because of the distinctiveness of the two issues and the fact that the federal due process claim could not have been avoided on state grounds, it would have been sensible to abstain on the equal protection issue but decide the due process question. Such a severance nicely satisfies both the demand that we accept jurisdiction where properly invoked and the requirement that we avoid needless constitutional decisions on local matters.
Since, in any event, we would not have abstained on the due process claim, the narrow issue before us is whether, given the existence of a final Consent Agreement, we ought now to abstain on the issue of equal protection. Considering the present posture of this suit, we hold that judicial precedent as well as equitable principles dictate against such a disposition.
To recapitulate, the fact that a question of state law adequate to dispose of the case involves unclear state law does not in itself trigger abstention. Rather, the decision to abstain flows ultimately from the fact that the federal court's handling of unclear state law may cause a needless constitutional decision as well as undue friction between the state and federal systems. Consequently, regardless of any unclear state law, if it is possible for federal litigation to go forward without violating either of these underlying precepts, abstention must be regarded as inappropriate. In this case, by approving the Amended Consent Agreement and Stipulation we avoid treading upon either precept.
First, there is no risk of a needless or premature constitutional decision since the settlement itself eliminates the need to make any constitutional decisions at all concerning these unclear state statutes. Secondly, we find no risk of friction with the State of Pennsylvania in the administration of its local affairs since the Attorney General, Secretary of Education and Secretary of Welfare, the very officers who are responsible for administering the state's system of education, all affirmatively request that this court retain jurisdiction and not abstain.
*300 Equitable considerations are equally strong against abstention. We have held a half dozen hearings over the last year. We have heard from international experts in the field of education of retarded children. We have heard from local experts on the administrative and legal problems. On the basis of their combined expertise, the Consent Agreements were formulated. Indeed, the Director of the Bureau of Special Education for the Commonwealth testified that he personally reviewed the October 7th Agreement "word by word, phrase by phrase." And he worked through more than six drafts. Likewise, the Commissioner of the Office of Mental Retardation, Department of Welfare, testified that he assigned one employee to work full time on the Agreement. In short, the Consent was not drawn up by a remote federal court, rather it was prepared in large part by the most talented local experts in the Commonwealth, the defendants themselves. Certainly no state court could hope for more expertise in these matters than that supplied by the defendants in this case.
Furthermore, the plan which the Consent Agreement contemplates, which may make possible for many of the plaintiffs a life of dignity and meaning, is well on its way toward becoming a reality. The Masters have already expended much time and energy, and they have held several meetings in this Courthouse. Many school districts have begun the task of locating members of the plaintiff class. With all these wheels in motion, no useful purpose would be served by the court abstaining at this juncture.
III. FAIRNESS OF THE SETTLEMENT
The final matter for our consideration is whether to approve the settlement as fair and reasonable. In arriving at such a decision, we must consider its fairness to both the plaintiffs and the defendants since both groups are classes for which this Court assumes the role of guardian.
Additionally, we must dispose of the objections of the Pennsylvania Association of Private Schools for Exceptional Children (PAPSEC). Essentially, PAPSEC contends that the following paragraph is unjust to retarded children in private schools because it eliminates the requirement for a prior hearing.
However, since PAPSEC is neither a party nor a member of either class, we must first decide whether it has standing to raise this issue.
To confer standing under the rules of Flast v. Cohen, 392 U.S. 83, 102, 88 S. Ct. 1942, 1953, 20 L. Ed. 2d 947 (1968), a party must not only establish a personal stake and interest in the outcome, it must also show "a logical nexus between the status [it asserts] and the claim sought to be adjudicated." In this case PAPSEC members no doubt have a genuine financial stake in the outcome since the Consent Agreement (particularly paragraph 29) may well tend to curtail the expansion of private schools for retarded children. However, they raise no issues relating to the welfare of private schools under the settlement. Rather PAPSEC seeks only to advance the interests and welfare of retarded children. It is not clear whether PAPSEC may do this under the doctrine of Flast v. Cohen. Compare Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) where the Society of Sisters alleged both a denial of their constitutional rights by a state statute which outlawed private schools as well as a denial of the constitutional rights of their patrons. But we need not decide this issue because, even if we were to consider the interests of retarded children under this paragraph of the Consent, we are convinced that it is fair to them. In this instance, certification by the Director of the Bureau of Education, the opportunity of parents to participate in determining the facility's appropriateness and automatic re-evaluation every two years are sufficient safeguards against an erroneous assignment.
Next, we consider the defendants, particularly the local districts and intermediate units which comprise the vast bulk of this class. When the objectors entered this case, they expressed alarm at the possible burdens, both administrative and financial, which the due process Stipulation and the Consent Agreement would impose. Subsequent changes in the due process Stipulation, however, eliminated most of the administrative burden, and that allayed the fears of all but the Lancaster-Lebanon Unit.
Lancaster-Lebanon continues to object to the basic concept of a prior due process hearing and asserts that injury flows to the school districts because under the Stipulation they will be unable to remove a disruptive retarded child from regular classes immediately. But this danger is more imagined than real. Dr. Sherr, Lancaster-Lebanon's own witness testified that the problem would arise, if at all, only with respect to severely retarded children. As to that group identification is rather easy; and an early identification, as required by state law, will permit a hearing and decision (if there is a dispute) well before the school year begins. In any case, the Amended Stipulation on hearings provides that in "extraordinary circumstances" the Director of the Bureau of Special Education may authorize tentative assignment to precede the hearing.
Financially, the burden of implementing this settlement falls primarily upon the Commonwealth, not the local districts or intermediate units. Dr. Ohrtman testified that the excess instruction cost required to educate a retarded child will be paid for by the Commonwealth. For example, he stated that if it costs $1,000 *302 to educate a normal child and $1,800 for a retarded child, the State will reimburse $800 to the local district. Moreover, the Commonwealth will pay intermediate units, in advance, funds necessary to hire extra personnel such as secretaries and psychologists necessary to implement this settlement. In short, we find that both the Stipulation and Consent Agreement are fair and reasonable to the defendants.
We have absolutely no hesitation about approving the Agreements as fair and reasonable to the plaintiffs. Approval means that plaintiff retarded children who heretofore had been excluded from a public program of education and training will no longer be so excluded after September 1, 1972. This is a noble and humanitarian end in which the Commonwealth of Pennsylvania has chosen to join. Today, with the following Order, this group of citizens will have new hope in their quest for a life of dignity and self-sufficiency.
ORDER AND INJUNCTION
And now, this 5th day of May, 1972, it is ordered that the Amended Stipulation and Amended Consent Agreement are approved and adopted as fair and reasonable to all members of both the plaintiff and defendant classes.
It is further ordered that the defendants; the Commonwealth of Pennsylvania, the Secretary of the Department of Education, the State Board of Education, the Secretary of the Department of Public Welfare, the named defendant school districts and intermediate units and each of the school districts and intermediate units in the Commonwealth of Pennsylvania, their officers, employees, agents and successors are enjoined as follows:
(a) from applying Section 1304 of the Public School Code of 1949, 24 Purd. Stat. Sec. 1304, so as to postpone or in any way deny to any mentally retarded child access to a free public program of education and training;
(b) from applying Section 1326 or Section 1330(2) of the School Code of 1949, 24 Purd.Stat. Secs. 13-1326 and 13-1330(2) so as to postpone, to terminate or in any way deny to any mentally retarded child access to a free program of education and training;
(c) from applying Section 1371(1) of the School Code of 1949, 24 Purd.Stat. Sec. 13-1371(1) so to deny to any mentally retarded child access to a free public program of education and training;
(d) from applying Section 1376 of the School Code of 1949, 24 Purd.Stat. Sec. 13-1376, so as to deny tuition or tuition and maintenance to any mentally retarded person except on the same terms as may be applied to other exceptional children, including brain damaged children generally;
(e) from denying homebound instruction under 1372(3) of the School Code of 1949, 24 Purd.Stat. Sec. 13-1372(3) to any mentally retarded child merely because no physical disability accompanies the retardation or because retardation is not a short-term disability.
(f) from applying Section 1375 of the School Code of 1949, 24 Purd.Stat. Sec. 13-1375, so as to deny to any mentally retarded child access to a free public program of education and training;
(g) to provide, as soon as possible but in no event later than September 1, 1972, to every retarded person between the ages of six and twenty-one years as of the date of this Order and thereafter, access to a free public program of education and training appropriate to his learning capacities;
(h) to provide, as soon as possible but in no event later than September 1, *303 1972, wherever defendants provide a preschool program of education and training for children aged less than six years of age, access to a free public program of education and training appropriate to his learning capacities to every mentally retarded child of the same age.
(i) to provide notice and the opportunity for a hearing prior to a change in educational status of any child who is mentally retarded or thought to be mentally retarded.
(j) to re-evaluate the educational assignment of every mentally retarded child not less than every two years, or annually upon the parents' request, and upon such re-evaluation, to provide notice and the opportunity for a hearing.
And now, this 14th day of February, 1972, subject to the approval and Order of the Court, it is agreed by the parties that the Stipulation of June 18, 1971, be amended to provide as follows:
(a) "Change in educational status" shall mean any assignment or re-assignment based on the fact that the child is mentally retarded or thought to be mentally retarded to one of the following educational assignments: Regular Education, Special Education or to no assignment, or from one type of special education to another.
(b) "Department" shall mean the Pennsylvania Department of Education.
(c) "School District" shall mean any school district in the Commonwealth of Pennsylvania.
(d) "Intermediate Unit" shall mean the intermediate units as provided by the Pennsylvania School Code.
(e) "Regular Education" shall mean education other than special education.
(f) "Special Education" shall mean special classes, special schools, education and training secured by the local school district or intermediate unit outside the public schools or in special institutions, instruction in the home and tuition reimbursement, as provided in 24 Purd. Stat. Secs. 13-1371 through 13-1380.
(g) Wherever the word "Parent" is mentioned, it will include the term "Guardian" and the plural of each where applicable.
2. No child of school age who is mentally retarded or who is thought by any school official, the intermediate unit, or by his parents or guardian to be mentally retarded, shall be subjected to a change in educational status without first being accorded notice and the opportunity of a due process hearing as hereinafter prescribed. This provision shall also apply to any child who has never had an educational assignment.
Nothing contained herein shall be construed to preclude any system of consultations or conferences with parents heretofore or hereafter used by School Districts or Intermediate Units with regard to the educational assignment of children thought to be mentally retarded. Nor shall such consultations or conferences be in lieu of the due process hearing.
3. Within 30 days of the approval of this Stipulation by the Court herein, the State Board of Education shall adopt regulations, and shall transmit copies thereof to the superintendents of the School Districts and Intermediate Units, the Members of their Boards, and their counsel, which regulations shall incorporate paragraphs 1 and 2 above and otherwise shall provide as follows:
(a) Whenever any mentally retarded or allegedly mentally retarded child of school age is recommended for a change in educational status by a School District, Intermediate Unit or any school official, notice of the proposed action *304 shall first be given to the parent or guardian of the child.
(b) Notice of the proposed action shall be given in writing to the parent or guardian of the child either (i) at a conference with the parent or (ii) by certified mail to the parent (addressee only, return receipt requested).
(c) The notice shall describe the proposed action in detail, including specification of the statute or regulation under which such action is proposed and a clear and full statement of the reasons therefor, including specification of any tests or reports upon which such action is proposed.
(d) The notice shall advise the parent or guardian of any alternative education opportunities available to his child other than that proposed.
(e) The notice shall inform the parent or guardian of his right to contest the proposed action at a full hearing before the Secretary of Education, or his designee, in a place and at a time convenient to the parent, before the proposed action may be taken.
(f) The notice shall inform the parent or guardian of his right to be represented at the hearing by any person of his choosing, including legal counsel, of his right to examine before the hearing his child's school records including any tests or reports upon which the proposed action may be based, of his right to present evidence of his own, including expert medical, psychological and educational testimony, and of his right to call and question any school official, employee, or agent of a school district, intermediate unit or the department who may have evidence upon which the proposed action may be based.
(g) The notice shall inform the parent or guardian of the availability of various organizations, including the local chapter of the Pennsylvania Association for Retarded Children, to assist him in connection with the hearing and the school district or intermediate unit involved shall provide the address and telephone number of such organization in the notice.
(h) The notice shall inform the parent or guardian that he is entitled under the Pennsylvania Mental Health and Mental Retardation Act to the services of a local center for an independent medical, psychological and educational evaluation of his child and shall specify the name, address and telephone number of the MH-MR center in his catchment area.
(i) The notice shall specify the procedure for pursuing a hearing.
If the notice is given at a conference with the parent, the parent may at that conference indicate his satisfaction with the recommendation and may in writing waive the opportunity for a hearing or, if dissatisfied, may in writing request a hearing. In either event, the parent may within five calendar days of the conference change this decision and may then request or waive the opportunity for a hearing by so indicating in writing to the school district or intermediate unit. If the parental decision is indicated at a conference, the parent shall be given a postcard which shall be mailed to the school district or intermediate unit within five calendar days thereafter, if the parent desires to change the decision. There shall be no change in educational assignment during the five day period.
If notice is given by certified mail, the parent must fill in the form requesting a hearing and mail the same to the school district or intermediate unit within ten (10) days of the date of receipt of the notice.
(j) The hearing shall be scheduled not sooner than fifteen (15) days nor later than thirty (30) days after receipt of the request for a hearing from the parent or guardian, provided however that upon good cause shown, reasonable extensions of these times shall be granted at the request of the parent or guardian.
(k) The hearing shall be held in the local district and at a place reasonably *305 convenient to the parent or guardian of the child. At the option of the parent or guardian, the hearing may be held in the evening and such option shall be set forth in the form requesting the hearing aforesaid.
(l) The hearing officer shall be the Secretary of Education, or a person designated by him acting in his stead, but shall not be an officer, employee or agent of any local district or intermediate unit in which the child resides.
(m) The hearing shall be an oral, personal hearing, and shall be public unless the parent or guardian specifies a closed hearing.
(n) The decision of the hearing officer shall be based solely upon the evidence presented at the hearing.
(o) The proposed change in educational status shall be approved only if supported by substantial evidence on the whole record of the hearing. Introduction by the school district or intermediate unit of the official report recommending a change in educational assignment, provided a copy of such report was given to the parent at the time notice was given, shall discharge its burden of going forward with the evidence, thereby requiring the parent to introduce evidence (as contemplated in paragraphs f, r, s, and t herein) in support of his contention.
(p) A stenographic or other transcribed record of the hearing shall be made and shall be available to the parent or guardian or his representative. Said record may be discarded after three years.
(q) The parent or guardian of the child may be represented at the hearing by any person of his choosing, including legal counsel.
(r) The parent or guardian or his representative shall be given reasonable access prior to the hearing to all records of the school district or intermediate unit concerning his child, including any tests or reports upon which the proposed action may be based.
(s) The parent or guardian or his representative shall have the right to compel the attendance of, and to question any witness testifying for the school board or intermediate unit and any official, employee, or agent of the school district, intermediate unit, or the department who may have evidence upon which the proposed action may be based.
(t) The parent or guardian shall have the right to present evidence and testimony, including expert medical, psychological or educational testimony.
(u) No later than twenty (20) days after the hearing, the hearing officer shall render a decision in writing which shall be accompanied by written findings of fact and conclusions of law and which shall be sent by registered mail to the parent or guardian and his representative.
(v) There shall be no change in the child's educational status without prior notice and the opportunity to be heard as set forth herein, except that in extraordinary circumstances the Director of the Bureau of Special Education, upon written request to him by the district or intermediate unit setting forth the parent, may approve an interim change in educational assignment prior to the hearing, in which event the hearing will be held as promptly as possible after the interim change. The Director shall act upon any such request promptly and in any event within three (3) days of its receipt.
(w) Any time limitation herein shall be construed and applied so as to do substantial justice and may be varied upon request and good cause shown.
4. The Department of Education shall revise its regulations to be in accord with the procedures agreed upon herein, shall disseminate the revised regulations to the school districts and intermediate units and shall thereafter file with the court and plaintiffs a statement of how and to whom said regulations and any covering statements were delivered.
*306 5. Notice and the opportunity of a the reasons therefor and upon notice to due process hearing, as set out in paragraph 3 above, shall be afforded on and after the effective date of the stipulation to every child who is mentally retarded or who is thought by any school official, the intermediate unit, or by his parents to be mentally retarded, before subjecting such child to a change in educational status as defined herein.
[s] Ed Weintraub Ed Weintraub Deputy Attorney General [s] Thomas K. Gilhool Thomas K. Gilhool Counsel for Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PENNSYLVANIA ASSOCIATION FOR | RETARDED CHILDREN, | NANCY BETH BOWMAN, et al. | Plaintiffs | CIVIL ACTION v. > NO. 71-42 COMMONWEALTH OF PENNSYLVANIA, | DAVID H. KURTZMAN, et al. | Defendants |
AMENDED CONSENT AGREEMENT
The Complaint in this action having been filed on January 7, 1971, alleging the unconstitutionality of certain Pennsylvania statutes and practices under the Equal Protection Clause of the Fourteenth Amendment and certain pendent claims; a three-judge court having been constituted, after motion, briefing and argument thereon, on May 26, 1971; and Order and Stipulation having been entered on June 18, 1971, requiring notice and a due process hearing before the educational assignment of any retarded child may be changed; and evidence having been received at preliminary hearing on August 12, 1971;
The parties being desirous of effecting an amicable settlement of this action, having entered into a Consent Agreement on October 7, 1971, approved by the Court on an interim basis that day, and notice having been given to members of plaintiff and defendant classes and certain objections having been raised by members of the classes, the objections having been heard, and in the particulars set forth below, agreed to, and all but one objection having been withdrawn by the members of the classes.
Now, Therefore, the parties agree this 14th day of February, 1972, subject to the approval and Order of this Court, to the following final amended Consent Agreement.
1. This action may and hereby shall be maintained by plaintiffs as a class action on behalf of all mentally retarded persons, residents of the Commonwealth of Pennsylvania, who have been, are being, or may be denied access to a free public program of education and training while they are, or were, less than twenty-one years of age.
It is expressly understood, subject to the provisions of Paragraph 45 below, that the immediate relief hereinafter provided shall be provided to those persons less than twenty-one years of age as of the date of the Order of the Court herein.
2. This action may and hereby shall be maintained against defendant school *307 districts and intermediate units as a class action against all of the School Districts and Intermediate Units of the Commonwealth of Pennsylvania.
3. Pursuant to Rule 23, Fed.R.Civ.P., notice of the extent of the Consent Agreement and the proposed Order approving this Consent Agreement, in the form set out in Appendix A, shall be given as follows:
(a) to the class of defendants, by the Secretary of Education, by mailing immediately a copy of this proposed Order and Consent Agreement to the Superintendent and the Director of Special Education of each School District and Intermediate Units in the Commonwealth of Pennsylvania;
(b) to the class of plaintiffs, (i) by the Pennsylvania Association for Retarded Children, by immediately mailing a copy of this proposed Order and Consent Agreement to each of its Chapters in fifty-four counties of Pennsylvania; (ii) by the Department of Justice, by causing an advertisement in the form set out in Appendix A, to be placed in one newspaper of general circulation in each County in the Commonwealth; and (iii) by delivery of a joint press release of the parties to the television and radio stations, newspapers, and wire services in the Commonwealth.
4. Expert testimony in this action indicates that all mentally retarded persons are capable of benefiting from a program of education and training; that the greatest number of retarded persons, given such education and training, are capable of achieving self-sufficiency, and the remaining few, with such education and training, are capable of achieving some degree of self-care; that the earlier such education and training begins, the more thoroughly and the more efficiently a mentally retarded person will benefit from it; and, whether begun early or not, that a mentally retarded person can benefit at any point in his life and development from a program of education and training.
5. The Commonwealth of Pennsylvania has undertaken to provide a free public education to all of its children between the ages of six and twenty-one years, and further, has undertaken to provide education and training for all of its mentally retarded children.
6. Having undertaken to provide a free public education to all of its children, including its mentally retarded children, the Commonwealth of Pennsylvania may not deny any mentally retarded child access to a free public program of education and training.
7. It is the Commonwealth's obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child's capacity, within the context of the general educational policy that, among the alternative programs of education and training required by statute to be available, placement in a regular public school class is preferable to placement in a special public school class and placement in a special public school class is preferable to placement in any other type of program of education and training.
8. Section 1304 of the School Code of 1949, as amended, 24 Pur.Stat. Sec. 13-1304, provides:
9. The Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, each of them, for themselves, their officers, employees, agents, and successors agree that they shall cease and desist from applying Section 1304 so as to postpone or in any way to deny access to a free public program of education and training to any mentally retarded child.
10. The Attorney General of the Commonwealth of Pennsylvania (hereinafter "The Attorney General") agrees to issue an Opinion declaring that Section 1304 means only that a school district may refuse to accept into or to retain in the lowest grade of the regular primary school or the lowest regular primary class above the kindergarten level, any child who has not attained a mental age of five years.
11. The Attorney General of the Commonwealth of Pennsylvania shall issue an Opinion thus construing Section 1304, and the State Board of Education (hereinafter "the Board") shall issue regulations to implement said construction and to supersede Sections 5-200 of the Pupil Attendance Regulations, copies of which Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiffs on or before February 28, 1972, and they shall be issued and promulgated respectively on or before March 8, 1972.
12. The aforementioned Opinion and Regulations shall (a) provide for notice and an opportunity for a hearing as set out in this Court's Order of June 18, 1971, as amended, before a child's admission as a beginner in the lowest grade of a regular primary school, or the lowest regular primary class above kindergarten, may be postponed; (b) require the automatic re-evaluation every two years of any educational assignment other than to a regular class, and (c) provide for an annual re-evaluation at the request of the child's parent or guardian, and (d) provide upon each such re-evaluation that the school district or intermediate unit shall give notice and an opportunity for a hearing as set out in this Court's Order of June 18, 1971, as amended, on the findings of the re-evaluation and the appropriateness of the educational assignment based thereon. As used herein and throughout this Agreement the term "re-evaluation" contemplates that degree of analysis and investigation necessary to make a sound judgment as to the appropriateness of the educational assignment of the child thought to be mentally retarded, which in some instances, may involve reviewing existing cumulative data and documentation or, in other instances may involve comprehensive psycho-educational testing.
13. The aforementioned Opinion and Regulations shall also require the timely placement of any child whose admission to regular primary school or to the lowest regular primary class above kindergarten is postponed, or who is not retained in such school or class, in a free public program of education and training pursuant to Sections 1371 through 1382 of the School Code of 1949, as amended 24 Purd.Stat. Sec. 13-1371 through Sec. 13-1382.
*309 Section 1326
14. Section 1326 of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 13-1326, provides:
15. The Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, each of them, for themselves, their officers, employees, agents and successors agree that they shall cease and desist from applying Section 1326 so as to postpone, to terminate, or in any way to deny access to a free public program of education and training to any mentally retarded child.
16. The Attorney General agrees to issue an Opinion declaring that Section 1326 means only that parents of a child have a compulsory duty while the child is between eight and seventeen years of age to assure his attendance in a program of education and training; and Section 1326 does not limit the ages between which a child must be granted access to a free, public program of education and training. Defendants are bound by Section 1301 of the School Code of 1949, 24 Purd.Stat. Sec. 13-1301, to provide free public education to all children six to twenty-one years of age. In the event that a parent elects to exercise the right of a child six through eight years and/or seventeen through twenty-one years of age to a free public education, defendants may not deny such child access to a program of education and training. Furthermore, if a parent does not discharge the duty of compulsory attendance with regard to any mentally retarded child between eight and seventeen years of age, defendants must and shall take those steps necessary to compel the child's attendance pursuant to Section 1327 of the School Code of 1949, 24 Purd.Stat. Sec. 13-1327, and related provisions of the School Code, and to the relevant regulations with regard to compulsory attendance promulgated by the Board.
17. The Attorney General shall issue an Opinion thus construing Section 1326, and related Sections, and the Board shall promulgate Regulations to implement said construction, copies of which Opinion and Regulations shall be filed with the Court and delivered to plaintiffs' counsel on or before February 28, 1972, and they shall be issued and promulgated respectively on or before March 8, 1972.
18. Section 1330(2) of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 13-1330(2) provides:
19. The Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, each of them, for themselves, their officers, employees, agents, and successors agree that they shall cease and desist from applying Section 1330(2) so as to terminate or in any way to deny access to a free public program *310 of education and training to any mentally retarded child.
20. The Attorney General agrees to issue an Opinion declaring that Section 1330(2) means only that a parent may be excused from liability under the compulsory attendance provisions of the School Code when, with the approval of the local school board and the Secretary of Education and a finding by an approved clinic or public school psychologist or psychological examiner, the parent elects to withdraw the child from attendance. Section 1330(2) may not be invoked by defendants, contrary to the parents' wishes, to terminate or in any way to deny access to a free public program of education and training to any mentally retarded child.
21. The Attorney General shall issue an Opinion so construing Section 1330(2) and related provisions and the Board shall promulgate Regulations to implement said construction and to supersede Section 5-400 of the Pupil Attendance Regulations, a copy of which Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiff on or before February 28, 1972, and they shall be issued and promulgated respectively on or before March 8, 1972.
22. Defendants, the Commonwealth of Pennsylvania, the Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, and the Secretary of Public Welfare, each of them, for themselves, their officers, employees, agents, and successors agree that they shall cease and desist from applying Section 1371(1) of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 13-1371(1) so as to deny access to a free public program of education and training to any mentally retarded child, and they further agree that wherever the Department of Education through its instrumentalities, the School Districts and Intermediate Units, or the Department of Public Welfare through any of its instrumentalities provides a pre-school program of regular education and training to children below the age of six, they shall also provide a program of education and training appropriate to their learning capacities to all retarded children of the same age.
23. Section 1371(1) of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 13-1371(1), provides:
24. The Attorney General agrees to issue an Opinion declaring that the phrase "children of school age" as used in Section 1371 means children aged six to twenty-one and also, whenever the Department of Education through any of its instrumentalities, the local School District, Intermediate Unit, or the Department of Public Welfare, through any of its instrumentalities, provides a pre-school program of regular education and training for children below the age of six, whether kindergarten or however so called, means all mentally retarded children who have reached the age less than six at which such pre-school programs are available to others.
25. The Attorney General shall issue an Opinion thus construing Section 1371 and the Board shall issue regulations to implement said construction, copies of which Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiffs on or before February 28, 1972, and they shall be issued and promulgated respectively on or before March 8, 1972.
Tuition and Tuition and Maintenance
26. The Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, each of them, for themselves, their officers, *311 employees, agents and successors agree that they shall cease and desist from applying Section 1376 of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 13-1376, so as to deny tuition or tuition and maintenance to any mentally retarded person.
27. The Attorney General agrees to issue an Opinion, and the Council of Basic Education of the State Board of Education agrees to promulgate Regulations, construing the term "brain damage" as used in Section 1376 and as defined in the Board's "Criteria for Approval . . . of Reimbursement" so as to include thereunder all mentally retarded persons, thereby making available to them tuition for day school and tuition and maintenance for residential school up to the maximum sum available for day school or residential school, whichever provides the more appropriate program of education and training. Copies of the aforesaid Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiff on or before February 28, 1972, and they shall be issued and promulgated respectively on or before March 8, 1972.
28. Defendants may deny or withdraw payments of tuition or tuition and maintenance whenever the school district or intermediate unit in which a mentally retarded child resides provides a program of special education and training appropriate to the child's learning capacities into which the child may be placed.
29. The decision of defendants to deny or withdraw payments of tuition or tuition and maintenance shall be deemed a change in educational assignment as to which notice shall be given and an opportunity for a hearing afforded as set out in this Court's Order of June 18, 1971, as amended. The issue at such hearing shall be whether the School District or Intermediate Unit provides an appropriate program of education and training for the particular child.
Whenever an additional facility or newly created program within a School District or Intermediate Unit is submitted for approval by the Secretary of Education, then in timely fashion, a School District or Intermediate Unit, upon written notice to the parent or guardian, may in writing request approval of the Director of the Bureau of Special Education, acting as the Secretary's designee, for the transfer of particular children from private schools to the additional facility or newly created program. Any district or unit so requesting shall submit documentation of the appropriateness of the new facility or program for the particular children proposed for transfer. The parents or guardian shall be afforded a timely opportunity to comment and to submit any documentation with regard to the approval by the Department of Education of an additional facility or newly created program and with regard to its appropriateness for the particular child. If after appropriate investigation the Director of the Bureau certifies the new facility or newly created program as appropriate for those children and approves their transfers, such certification and approval shall be in lieu of individual hearings as provided above in this paragraph.
30. Section 1372(3) of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 13-1372(3), provides in relevant part:
31. The Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, each of them, for themselves, their officials, employees, agents and successors agree that they shall cease and desist from denying homebound instruction under Section 1372(3) to mentally retarded children merely because no physical disability accompanies the retardation or because retardation is not a short-term disability.
32. The Attorney General agrees to issue an Opinion declaring that a mentally retarded child, whether or not physically disabled, may receive homebound instruction and the State Board of Education and/or the Secretary of Education agrees to promulgate revised Regulations and forms in accord therewith, superseding the "Homebound Instruction Manual" (1970) insofar as it concerns mentally retarded children.
33. The aforesaid Opinion and Regulations shall also provide:
(a) that homebound instruction is the least preferable of the programs of education and training administered by the Department of Education and a mentally retarded child shall not be assigned to it unless it is the program most appropriate to the child's capacities;
(b) that homebound instruction shall involve education and training for at least five hours a week or for such other reasonable period as the State Board of Education may by regulation provide.
(c) that an assignment to homebound instruction shall be re-evaluated not less than every three months, and notice of the evaluation and an opportunity for a hearing thereon shall be accorded to the parent or guardian, as set out in the Order of this Court dated June 18, 1971, as amended.
34. Copies of the aforementioned Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiffs on or before February 28, 1972, and they shall be issued and promulgated respectively on or before March 8, 1972.
35. Section 1375 of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 13-1375, provides:
36. Defendants, the Commonwealth of Pennsylvania, the Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, and the Secretary of Public Welfare, each of them, for themselves, their officers, employees, agents and successors agree that they shall cease and desist *313 from applying Section 1375 so as to deny access to a free public program of education and training to any mentally retarded child.
37. The Attorney General agrees to issue an Opinion declaring that since all children are capable of benefiting from a program of education and training, Section 1375 means that insofar as the Department of Public Welfare is charged to "arrange for the care, training and supervision" of a child certified to it, the Department of Public Welfare must provide a program of education and training appropriate to the capacities of that child.
38. The Attorney General agrees to issue an Opinion declaring that Section 1375 means that when it is found, on the recommendation of a public school psychologist and upon the approval of the local board of school directors and the Secretary of Education, as reviewed in the due process hearing as set out in the Order of this Court dated June 18, 1971, that a mentally retarded child would benefit more from placement in a program of education and training administered by the Department of Public Welfare than he would from any program of education and training administered by the Department of Education, he shall be certified to the Department of Public Welfare for placement in a program of education and training.
39. To assure that any program of education and training administered by the Department of Public Welfare shall provide education and training appropriate to a child's capacities the plan referred to in Paragraph 50 below shall specify, inter alia,
(a) the standards for hours of instruction, pupil-teacher ratios, curriculum, facilities, and teacher qualifications that shall be met in programs administered by the Department of Public Welfare;
(b) the standards which will qualify any mentally retarded person who completes a program administered by the Department of Public Welfare for a High School Certificate or a Certificate of Attendance as contemplated in Sections 8-132 and 8-133 of the Special Education Regulations;
(c) the reports which will be required in the continuing discharge by the Department of Education of its duty under Section 1302(1) of the Administrative Code of 1929, as amended, 71 Purd.Stat. Sec. 352(l), to inspect and to require reports of programs of education and training administered by the Department of Public Welfare, which reports shall include, for each child in such programs an annual statement of educational strategy (as defined in Section 8-123 of the Special Education Regulations) for the coming year and at the close of the year an evaluation of that strategy;
(d) that the Department of Education shall exercise the power under Section 1926 of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 19-1926 to supervise the programs of education and training in all institutions wholly or partly supported by the Department of Public Welfare, and the procedures to be adopted therefor.
40. The Attorney General agrees to issue an Opinion so construing Section 1375 and the Board to promulgate Regulations implementing said construction, which Opinion and Regulations shall also provide:
(a) that the Secretary of Education shall be responsible for assuring that every mentally retarded child is placed in a program of education and training appropriate to his learning capacities, and to that end, by Rules of Procedure requiring that reports of the annual census and evaluation, under Section 1371(2) of the School Code of 1949, as amended, 24 Purd.Stat. 13-1371(2), be made to him, he shall be informed as to the identity, condition, and educational *314 status of every mentally retarded child within the various school districts.
(b) that should it appear that the provisions of the School Code relating to the proper education and training of mentally retarded children have not been complied with or the needs of the mentally retarded child are not being adequately served in any program administered by the Department of Public Welfare, the Department of Education shall provide such education and training pursuant to Section 1926 of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 19-1926.
(c) that the same right to notice and an opportunity for a hearing as is set out in the Order of this Court of June 18, 1971, shall be accorded on any change in educational assignment among the programs of education and training administered by the Department of Public Welfare.
(d) that not less than every two years the assignment of any mentally retarded child to a program of education and training administered by the Department of Public Welfare shall be re-evaluated by the Department of Education and upon such re-evaluation, notice and an opportunity to be heard shall be accorded as set out in the Order of this Court, dated June 18, 1971, as amended.
41. Copies of the aforesaid Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiffs on or before February 28, 1972, and they shall be issued and promulgated respectively on or before March 8, 1972.
42. Each of the named plaintiffs shall be immediately re-evaluated by defendants and, as soon as possible, but in no event later than October 13, 1971, shall be accorded access to a free public program of education and training appropriate to his learning capacities.
43. Every retarded person between the ages of six and twenty-one years as of the date of this Order and thereafter shall be provided access to a free public program of education and training appropriate to his capacities as soon as possible but in no event later than September 1, 1972.
44. Wherever defendants provide a pre-school program of regular education and training for children less than six years of age, whether kindergarten or however called, every mentally retarded child of the same age as of the date of this Order and hereafter shall be provided access to a free public program of education and training appropriate to his capacities as soon as possible but in no event later than September 1, 1972.
45. The parties explicitly reserve their right to hearing and argument on the question of the obligation of defendants to accord compensatory educational opportunity to members of the plaintiff class of whatever age who were denied access to a free public program of education and training without notice and without a due process hearing while they were aged six years to twenty-one years, for a period equal to the period of such wrongful denial.
46. To implement the aforementioned relief and to assure that it is extended to all members of the class entitled to it, Herbert Goldstein, Ph.D. and Dennis E. Haggerty, Esq. are appointed Masters for the purpose of overseeing a process of identification, evaluation, notification, and compliance hereinafter described.
47. Notice of this Order and of the Order of June 18, 1971, in form to be agreed upon by counsel for the parties, shall be given by Commonwealth defendants to the parents and guardian of every mentally retarded person, and of every person thought by defendants to be mentally retarded, of the ages specified in Paragraphs 43, and 44 above, now resident in the Commonwealth of Pennsylvania, *315 who is not being accorded access to a free public program of education and training, whether as a result of exclusion, postponement, excusal, or in any other fashion, formal or informal.
48. Within thirty days of the date of this Order, Commonwealth defendants shall formulate and shall submit to the Masters for their approval a satisfactory plan to identify, locate, evaluate and give notice to all the persons described in the foregoing paragraphs, and to identify all persons described in Paragraph 45, which plan shall include, but not be limited to, a search of the records of the local school districts, of the Intermediate Units, of County MH/MR units, of the State Schools and Hospitals, including the waiting lists for admission thereto, and of interim care facilities, and, to the extent necessary, publication in newspapers and the use of radio and television in a manner calculated to reach the persons described in the foregoing paragraph. A copy of the proposed plan shall be delivered to counsel for plaintiffs who shall be accorded a right to be heard thereon.
49. Within ninety days of the date of this Order, Commonwealth defendants shall identify and locate all persons described in paragraph 47 above, give them notice and provide for their evaluation, and shall report to the Masters the names, circumstances, the educational histories and the educational diagnoses of all persons so identified.
50. By April 1, 1972, Commonwealth defendants shall formulate and submit to the Masters for their approval a plan, to be effectuated by September 1, 1972, to commence or recommence a free public program of education and training for all mentally retarded persons described in Paragraph 47 above, and for all mentally retarded persons of such ages hereafter. The plan shall specify the range of programs of education and training, their kind and number, necessary to provide an appropriate program of education and training to all mentally retarded children, where they shall be conducted, arrangements for their financing, and, if additional teachers are found to be necessary, the plan shall specify recruitment, hiring, and training arrangements. The plan shall specify such additional standards and procedures, including but not limited to those specified in Paragraph 39 above, as may be consistent with this Order and necessary to its effectuation. A copy of the proposed plan will be delivered to counsel for plaintiffs who shall be accorded a right to be heard thereon.
51. If by September 1, 1972, any local school district is not providing a free public education to all mentally retarded persons within its responsibility as provided hereinbefore in special classes or schools established and maintained by school districts or has not secured such proper education and training outside the public schools of the district or in special institutions, and if an intermediate unit is not providing such education by means of additional classes or schools as are necessary or otherwise providing for the proper education and training of such persons who are not enrolled in classes or schools maintained and operated by school districts or who are not otherwise provided for, the Secretary of Education, pursuant to Section 1372(5) of the Public School Code of 1949, 24 Purd.Stat. 1372(5), shall directly provide, maintain, administer, supervise and operate programs for the education and training of these children.
52. The Masters shall hear any members of the plaintiff class who may be aggrieved in the implementation of this Order.
53. The Masters shall be compensated by Commonwealth defendants.
54. This Court shall retain jurisdiction of the matter until it has heard the final report of the Masters on or before October 15, 1972.
55. Any child who is mentally retarded and who also has another exceptionality or other exceptionalities, whether blind, deaf, cerebral palsied, *316 brain damaged, muscular dystrophied or social or emotionally disturbed, or otherwise, irrespective of the primary diagnosis, shall be considered mentally retarded for purposes of the Agreements and Orders herein.
[s] T. K. Gilhool [s] J. Shane Creamer Thomas K. Gilhool J. Shane Creamer Attorney for Plaintiffs Attorney General [s] Ed Weintraub Ed Weintraub Deputy Attorney General Attorneys for Defendants [s] John C. Pittenger Acknowledged: ______________________________ Secretary of Education [s] William Ohrtman Dr. William F. Ohrtman Director, Bureau of Special Education [s] Helene Wohlgemuth Mrs. Helene Wohlgemuth Secretary of Public Welfare [s] Edward R. Goldman Edward R. Goldman Commissioner of Mental Retardation NOTES
 The Pennsylvania Association for Retarded Children (PARC) and its fifty-three member chapters constitutes an organization which for some 20 years has undertaken part of the burden of educating and training retarded children in the Commonwealth. In addition, PARC has sought to advance the general interests of retarded citizens of Pennsylvania.
 The parties have stipulated that when the complaint was filed, all the named plaintiffs were being excluded from any program of public education and training. See, passim, Statement of Uncontested FactsDocket #97.
 24 Purd.Stat. Sec. 13-1375 provides:
"Uneducable children provided for by Department of Public Welfare. The State Board of Education shall establish standards for temporary or permanent exclusion from the public school of children who are found to be uneducable and untrainable in the public schools. Any child who is reported by a person who is certificated as a public school psychologist as being uneducable and untrainable in the public schools, may be reported by the board of school directors to the Superintendent of Public Instruction and when approved by him, in accordance with the standards of the State Board of Education, shall be certified to the Department of Public Welfare as a child who is uneducable and untrainable in the public schools. When a child is thus certified, the public schools shall be relieved of the obligation of providing education or training for such child. The Department of Public Welfare shall thereupon arrange for the care, training and supervision of such child in a manner not inconsistent with the laws governing mentally defective individuals."
 24 Purd.Stat. Sec. 13-1304 provides:
"Admission of beginners.
. . . The board of school directors may refuse to accept or retain beginners who have not attained a mental age of five years . . ."
In certain instances this statute results in permanent exclusion since it is theoretically possible for a child with an I. Q. of 35 or below (the I. Q. intelligence test is normally relied upon to establish a mental age) never to achieve a mental age of five years. This result occurs because the I. Q. ratio levels off at chronological age 15. See N.T. 79-80 (August 12 Hearing) (Dr. James Gallagher).
 24 Purd.Stat. Sec. 13-1330 provides:
"Exceptions to compulsory attendance. The provisions of this act requiring regular attendance shall not apply to any child who: . . .
(2) Has been examined by an approved mental clinic or by a person certificated as a public school psychologist or psychological examiner, and has been found to be unable to profit from further public school attendance, and who has been reported to the board of school directors and excused, in accordance with regulations prescribed by the State Board of Education; . . ."
 24 Purd.Stat. Sec. 13-1326 provides:
"Definitions. The term `compulsory school age,' as hereinafter used, shall mean the period of a child's life from the time the child's parents elect to have the child enter school, which shall be not later than at the age of eight (8) years, until the age of seventeen (17) years."
 In general, the public sector has four possible assignments for the retarded child: regular, retarded-educable, retarded-trainable, and uneducable-untrainable.
 Counsel for the plaintiffs asserts in his Memorandum in Support of Plaintiff's Motion to Convene a Three Judge Court that the right to an education, once given, constitutes a fundamental right, and therefore the defendants must show a compelling state interest in order to lawfully exclude retarded children. Cf. Brown v. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955); Compare, Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969) (travel); Loving v. Virginia, 388 U.S. 1, 9, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967) (race); Harper v. Virginia State Board of Elections, 383 U.S. 663, 670, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966). (voting)
But we are satisfied that the plaintiffs have established a colorable constitutional claim even under the less stringent rational basis test, and consequently we need not decide whether the Commonwealth must demonstrate a compelling state interest in order to dispose of the narrow issues presently before us.
Plaintiffs also allege in their complaint that Sections 1375 and 1304 violate equal protection in that (1) they condition a retarded child's education upon the impermissible criteria of wealth and (2) they require the retarded child's parents to pay additional monies to secure his education even though these parents are taxed for support of a system of public education. Once again, because of our satisfaction with the colorability of the equal protection claim apart from possible discrimination against poor persons, we need not face these issues.
 Plaintiffs point to Art. 3, § 14 of the Pennsylvania Constitution, P.S. which reads:
"The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth;"
24 Purd.Stat. 13-1301 which provides:
"Every child, being a resident of any school district, between the ages of six (6) and twenty-one (21) years, may attend the public schools in his district, subject to the provisions of this act;"
and 24 Purd.Stat. 13-1326 which reads in part,
"The term `compulsory school age,' as hereinafter used, shall mean the period of a child's life from the time the child's parents elect to have the child enter school, which shall be not later than at the age of eight (8) years."
 § 1343. Civil rights and elective franchise.
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege, or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.
 § 1981. Equal rights under the law.
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
 § 1983. Civil action for deprivation of rights.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.
 See 28 U.S.C. §§ 2201 and 2202.
 28 U.S.C. § 2281. Injunction against enforcement of State statute three-judge court required.
An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.
[14a] The court heard from (1) I. Ignacy Goldberg, who is, inter alia, Professor of Education, Department of Special Education, Columbia University; member of the President's Panel on Mental Retardation (1961); consultant to the Children's Bureau, Department of Health, Education and Welfare; Scientific Advisory Board member of the Kennedy Child Study Center, New York; and author or co-author of almost 50 publications on mental retardation; (2) James J. Gallagher, who is, inter alia, the first Director of the Bureau of Education for the Handicapped and Associate Commissioner of Education, U. S. Office of Education, Department of Health, Education and Welfare (1967-1969); Deputy Assistant Secretary for Program Planning, Research and Education, Department of Health, Education and Welfare; Director, Frank Porter Graham Child Development Center, University of North Carolina; and author or co-author of some 30 publications on the education of retarded persons; Donald J. Steadman, who is, inter alia, first Associate Director of the John F. Kennedy Center for Research on Education and Human Development, Peabody College; Professor and Chairman of the Division of Human Development in the School of Education, University of North Carolina; Associate Editor of the Journal of Mental Deficiency; author or co-author of some 30 publications on the mentally retarded; and a permanent consultant to the President's Committee on Mental Retardation; and Burton Blatt, who is, inter alia, Centennial Professor and Director, Division of Special Education and Rehabilitation, Syracuse University; member of the first Connecticut State Advisory Council on Mental Retardation; member of the State of New York Committee for Children; member of the National Advisory Committee of the R & D Center for Handicapped Children of Teachers College, Columbia University; and author or co-author of almost 90 publications.
 24 Purd.Stat. Sec. 13-1371(1)
"Definition of exceptional children; reports; examination.
(1) The term `exceptional children' shall mean children of school age who deviate from the average in physical, mental, emotional or social characteristics to such an extent that they require special educational facilities or services and shall include all children in detention homes."
 24 Purd.Stat. Sec. 13-1376
"Cost of tuition and maintenance of certain exceptional children in approved institutions
(a) When any child between the ages of six (6) and twenty-one (21) years of age resident in this Commonwealth, who is blind or deaf, or afflicted with cerebral palsy and/or brain damage and/or muscular dystrophy, is enrolled, with the approval of the Department of Public Instruction, as a pupil in any of the schools or institutions for the blind or deaf, or cerebral palsied and/or brain damaged and/or muscular dystrophied, under the supervision of, subject to the review of or approved by the Department of Public Instruction, in accordance with standards and regulations promulgated by the Council of Basic Education, the School District in which such child is resident shall pay twenty-five per centum (25%) of the cost of tuition and maintenance of such child in such school or institution, as determined by the Department of Public Instruction; and the Commonwealth shall pay, out of funds appropriated to the department for special education, seventy-five per centum (75%) of the cost of their tuition and maintenance, as determined by the Department.
 Leonard Kalish, Esq., appearing pro se on behalf of his fifteen year old daughter who is a member of the plaintiff class stated that his child has been excluded from a public education all of her life. He continued:
"I would just like to call to the Court's attention what the realities of that situation are, and I think I can speak with some authority because for the last nine years, my fifteen year old daughter has been denied access to public education without due process, but consistently denied, and as a result of which we have had her in private schools for the last nine years.
Now in those nine years, not counting the present year, not counting the year which started last summer, we have spent approximately forty thousand dollars on her private schooling, shall I say. At the present time we have her in a private school, a residential school where we pay a tuition of twelve thousand dollars a year, and I want to say to the Court that what I am saying here too our situation is paralleled by many other situations of many other children, and their parents.
Now if a public facility were established that comes anywhere near striking the distance of appropriateness for my child, Your Honors can rest assured that I will welcome that public facility with open arms. The financial burden of giving my child private education is very considerable. There is no pride or status symbol involved in having a child in a private school such as the private schools to which my child and others in the same situation would go. In other words, it isn't out of any feeling of status that I am undertaking this heavy financial burden. It is simply because there is no public facility.
Now the moment a public facility is indicated, even just on the drawing board or on brochures, or papers of any kind which will look reasonably appropriate, I will assure Your Honors that ninety-five per cent or more of all parents will rush to get their children in there because everyone of the parents is laboring under a backbreaking financial burden. We're not talking about wealthy people here. We are talking about ordinary people, and I know a great many of them who send their children to the same school where I send mine, and I have had my child in one other school before this, and I have had her with a private tutor for a year."
 24 Purd.Stat. Section 1372(3)
"Standards; plans; special classes or schools
* * * * *
(3) Special Classes or Schools Established and Maintained by School Districts.
". . . If . . . it is not feasible to form a special class in any district or to provide such education for any [exceptional] child in the public schools of the district, the board of school directors of the district shall secure such proper education and training outside the public schools of the district or in special institutions, or by providing for teaching the child in his home. . . ."
 Our power to enter an injunction does not stem from a finding that the State statutes contravene the United States Constitution or that the state officers acted in an unconstitutional manner. We make no such findings in this opinion. We hold, however, that the plaintiffs have established a colorable constitutional claim, (see pages 293-297 infra) and hence the court has jurisdiction under 28 U.S.C. § 1343(3). Once jurisdiction is established, we then have the judicial power necessary to approve and enforce a settlement agreement. See Kelly v. Greer, 365 F.2d 669 (3rd Cir. 1966), cert. denied, 385 U.S. 1035, 87 S. Ct. 772, 17 L. Ed. 2d 682 (1967); Berger v. Grace Line Inc., 343 F. Supp. 755 (E.D.Pa.1972). On this basis, we issued the Injunction to insure that all school districts and intermediate units in the Commonwealth would clearly understand that this class action binds them to follow our Order approving the settlement.
 23(e) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.
 Mr. Leonard Kalish, Esq. appeared on behalf of his daughter, a member of the plaintiff class. He did not object to the substance of the proposed Consent Agreement, but only questioned the absence of a precise definition of mental retardation. His motion was later compromised, and he has withdrawn his objection.
 N.T. at 4-7 (Hearing of October 22, 1971).
 N.T. at 40 (Hearing of November 12, 1971).
 Id. at 45.
 Id. at 48.
 For example, the original Stipulation provided for two notices to the parents of their right to a hearing and made no provision for waiver of the hearing. The objecting defendants took issue with these features.
 For example, the defendants disagreed with the need for an automatic re-evaluation of retarded children in special classes every two years and the mandatory requirement that homebound instruction involve education and training for at least five hours a week.
 An amended Stipulation and Amended Consent Agreement were filed with this Court on February 18, 1972. The general import of these documents, however, remained the same as explained in our extended analysis above; therefore, we need not review them again.
 "[T]his Intermediate Unit approves the general aims of the interim order to improve the education and training opportunities of mentally retarded children . . ." Objections by Lancaster-Lebanon Intermediate Unit No. 13 at 1 (emphasis original); "[W]e agree with the general aims, of course we do. It is an enlightened objective."
(N.T. 26 49Hearing of November 12, 1971) (Statement of William B. Arnold, Esq.). In response to Judge Masterson's questioning, Mr. Arnold did not cite any specific objections to any provisions of the Consent Agreement. (N.T. at 43Hearing of February 7, 1972).
 "The reasonableness of this distinction is so clear as to admit of no argument. A child who is uneducable and untrainable requires treatment different from those children of the other classifications. To place the retarded child in the public classroom is to subject such child to frustration since he cannot compete mentally with the other children, to subject him to ridicule by other students, to generally disrupt the classroom, albeit not intentionally and to impose upon the teacher a burden with which he is not trained to cope. There is therefore sound reason for the distinction made by Section 1375 of the School Code"Commonwealth's Brief in Support of Motion to Dismiss at 3. (Docket # 22.)
 N.T. at 164-176. (Hearing of December 15, 1971) (William Ohrtman, cross examination.)
 The defendant class may also properly fall 23(b) (2) which requires that:
"the party opposing the class [of defendants] [i. e. the plaintiff class] has acted or refused to act on grounds generally applicable to the class [of defendants] [e. g. the plaintiffs have acted in such a way that the defendants are excluding them from public schools] making appropriate final injunctive relief or corresponding declaratory relief with respect to the class of [of defendants] as a whole."
 Advisory Committee's Note of 1966. See generally, Moore's Federal Practice § 23.72.
 But see Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2nd Cir. 1968), criticized Moore's Federal Practice, § 23.72.
 N.T. at 78 (Hearing of November 12, 1971); N.T. at 368 (Hearing of December 16, 1971).
 See Moore's Federal Practice § 23.55.
 See Statement of Representation by the Attorney GeneralDocket No. 98.
 Statement of Uncontested Facts, Paragraph #145 at 27. All of the defendants are bound by this statement. At the December 15th hearing, we afforded the objectors two weeks to challenge any part of the uncontested facts (which were prepared by the Attorney General and the plaintiffs). Yet no objector requested a hearing at the expiration of the two weeks period.
 Statement of Uncontested Facts, Paragraph 90, at 18.
 See generally M. Garrison, Jr. and D. Hammill, "Who Are the Retarded," Exceptional Children, October 9, 1971; J. Mercer, The Use and Misuse of Labelling Human Beings: The Ethics of Testing, unpublished essay presented at an International Symposium on Human Rights, Retardation and Research, Washington, D.C. (1971); President's Committee, Mental Retardation 1969 Annual Report; N.T. at 8 (Hearing of August 12, 1971) (Ignacy Goldberg.)
 N.T. at 10-15 (Hearing of August 12, 1971). The historical summary which follows is a paraphrased summary of his testimony.
 In Buck v. Bell, 274 U.S. 200, 207, 47 S. Ct. 584, 585, 71 L. Ed. 1000 (1926), Justice Oliver Wendell Holmes upheld the validity of Virginia's compulsory sterilization law with these words:
"We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough."
The Pennsylvania legislature passed the first such sterilization law in the United States in 1905, but the Governor vetoed it. See Challener, The Law of Sexual Sterilization in Pennsylvania, 57 Dick.L. Rev. 298 (1952). During the next decade after Buck v. Bell, twenty states passed sterilization statutes. See Note, Human Sterilization, 35 Iowa L.Rev. 251, 253 n. 12 (1950). During the last thirty years, thirty-two states have had sterilization statutes but five have been declared unconstitutional. O'Hare and Sanks, Eugenic Sterilization, 45 Geo.L.J. 30 (1956). See generally, F. Lindman and D. McIntyre, The Mentally Disabled and the Law (1961).
 N.T. at 11-12 (Hearing of August 12, 1971). Dr. Goldberg went on to outline the progress in education of retarded children since the 1920's. He particularly emphasized the progress made during the 1960's, but reminded us that the stigma remains.
 J. Mercer, The Use and Misuse of Labelling Human Beings: The Ethics of Testing, supra note 35 at 6.
 Id. at 2; J. Cohen, Vocational Rehabilitation of the Mentally Retarded, Pediatric Clinics of North America, Vol. 15, No. 4 (November 1968) at 1017; N.T., passim (Hearing of August 12, 1971).
 M. Garrison, Jr. and D. Hammill, Who are the Retarded, supra note 40 at 18.
 Id. at 20. Dr. Lester Mann who is Special Educator and School Psychologist in Montgomery County estimated that a "significant error" in terms of measurement psychological tests would occur on the average in 5% of the cases. (See N.T. at 296Hearing of December 16, 1971). The higher figures in the Philadelphia study may be due to the fact that it was conducted in an urban center as well as the fact that Garrison and Hammill employed five different measures in their tests.
 For this reason we need not consider the colorability of plaintiffs' claim that education constitutes an essential interest, and therefore it may not be disturbed by government action without a prior hearing. See, e. g., Wasson v. Towbridge, 382 F.2d 807 (2nd Cir. 1967); Woods v. Wright, 334 F.2d 369 (5th Cir. 1964); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961); Stricklin v. Regents of Univ. of Wisconsin, 297 F. Supp. 416 (W.D.Wis.1969). See also, Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970) (public assistance benefits); Sniadich v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969) (prejudgment garnishment); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957) (right to take bar examination); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956) (dismissal from employment); Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S. Ct. 215, 70 L. Ed. 494 (1926) (accountant's qualifications to practice before the Board of Tax Appeals).
 N.T. at 18 (Goldberg), 63 (Gallagher), 115 (Steadman), 137 (Blatt) (Hearing of August 12, 1971); N.T. at 248 (Mann) (Hearing of December 16, 1971).
 N.T. at 66868 (Gallagher).
The President's Committee on Mental Retardation in its 1969 Annual Report at 17 estimates that "[S]ome three-quarters of this nation's retarded people could become self-supporting if given the right kind of training early enough. Another 10 to 15 percent could become partially self-supporting."
Dr. Aubrey J. Yates in Behavior Therapy (1970) at 234 states that "[T]wo-thirds and probably four-fifths of those who might on I.Q. be classified as feeble minded can live in financial and social independence under present economic circumstances." See generally, President's Committee on Mental Retardation, These Too, Must be Equal; J. Cohen, Vocational Rehabilitation of the Mentally Retarded, supra note 35.
 N.T. at 30 (Goldberg), 73 (Gallagher), (Hearing of August 12, 1971). See generally, CEC Policy Statement, Journal of Exceptional Children 423-24 (February 1971); President's Committee on Mental Retardation, 1969 Annual Report; 1965 Pennsylvania Mental Retardation Plan; President's Committee on Mental Retardation, The Six Hour Retarded Child (1970).
 N.T. at 30 (Goldberg) (Hearing of August 12, 1971).
 See Statement of Uncontested Facts (Paragraph 148) at 30-31. Most estimates of incidence of mental retardation indicate that about 50,000 mentally retarded children are excluded from any education in the Commonwealth today. See, e. g. D. Stedman and D. Sherwood; Hypothetical Community, Average Incidence of Mental Retardation Based on 1965 Census Figures in Four Populations 100,000 People (1967). Although Section 13-1372 of the School Code requires that every district superintendent report to the proper intermediate unit on every exceptional child in his district, no such census is now attempted or completed. (See Statement of Uncontested Facts, paragraph 148 n. 1 at 31). Consequently, experts can only guess how many children are presently excluded.
 N.T. at 65-66 (Hearing of December 15, 1971).
 1965 Pennsylvania Mental Retardation Plan at 39.
 Id. at 93.
 In this case, Sections 1326 and 1330 are challenged primarily under State law while Sections 1375 and 1304 are attacked separately under the federal Constitution.
 We also note that it remains within our discretion to adjudicate these state matters (and the question of unconstitutional results obtained under state statues) as a three-judge court since other claims in this suit clearly demand such a court. See Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970); Florida Lime etc. Growers v. Jacobsen, 362 U.S. 73, 80 S. Ct. 568, 4 L. Ed. 2d 568 (1960); Spencer v. Kugler, 454 F.2d 839 (3rd Cir. 1972) (Aldisert, J.). Consequently, we have not exceeded our jurisdiction by encompassing all of plaintiffs' claims within our Order and Injunction.
Some question may arise as to our jurisdiction to enjoin the defendants from denying plaintiffs tuition or tuition maintenance under Section 1376; homebound instruction under Section 1372(3), or preschool education under Sec. 1371(1) since these matters were not expressly included in the pleadings. However, we believe that a compromise under Rule 23 may include related claims not actually pleaded in the action, and for this reason the power exists to enforce these three parts of the Consent Agreement. See Winkelman v. General Motors Corp., 48 F. Supp. 490 (S.D.N.Y.1942). In any case, with leave of court, plaintiffs could simply amend their complaint.
 Section 1375 (tuition and tuition maintenance), Section 1372(3) (homebound instruction) and Section 1371(1) (preschool education) which the Consent Agreement encompasses are also unclear.
 See note 9, supra.
 Article III, Section 14 was adopted in 1967 and has not yet been adequately interpreted by Pennsylvania courts.
 We express no opinion on the proper disposition where the evidence on both claims is the same, and hence the issues are not easily separated.
 We point out that this issue differs from the issue discussed above, which was, what might have been done with this case if the defendants had pressed the abstention issue from the beginning or if no settlement effort had been undertaken.
 N.T. at 58-59. (Hearing of February 7th, 1972). See also Corporation of Haverford College v. Reeher, 329 F. Supp. 1196, 1201 (E.D.Pa.1971) (Joseph S. Lord, III, C. J.).
 N.T. at 29 (William Ohrtman) (Hearing of December 5, 1971).
 Id. at 28.
 Id. at 73. (Edward Goldman).
 Lancaster-Lebanon relies primarily upon Reid v. Board of Education of New York City (2nd Cir. 1972) and, of course, Reetz and Askew. In Reid the Second Circuit argued that the district court should abstain from deciding whether a delay of over two years between the testing and placement of brain-damaged children in public schools, with no educational services extended in the interim, violated the federal Constitution. But Reid, like so many other cases including Reetz and Askew, is distinguishable because the case before us (1) involves a settlement agreement which obviates the need to decide constitutional issues and (2) the Commonwealth has requested that we not abstain, thereby obviating the threat of federal-state irritation.
 N.T. at 3-6. (Hearing of February 7, 1972).
 N.T. at 62-68 (Hearing of November 12, 1971).
 Amended Stipulation, Paragraph 3(v).
 N.T. at 21 (Hearing of December 15, 1971).
 Id. at 23.
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