void ab initio doctrine in Pennsylvania

2026The void ab initio doctrine applies only to “claims that implicate notice, due process, or other constitutional rights of a party.” Glen- Gery v. Zoning Hr’g Bd. of Dover Twp., 907 A.2d 1033 , 1037 n. 5 (Pa. 2006).

2023Glen-Gery Corp., 907 A.2d at 1035 . 13 As this Court explained in Glen-Gery Corporation, Norton [] is the most frequently cited case dealing with the doctrine of void ab initio.

2010See 42 Pa.C.S. § 5571.1_This time, the General Assembly incorporated reservations to the unfettered use of the void ab initio doctrine contained in dicta in [Schadler v. Zoning Hearing Bd. of Weisenberg Twp., 578 Pa. 177 , 850 A.2d 619 (2004)] and Glen-Gery.

2010See 42 Pa.C.S. § 5571.1_This time, the General Assembly incorporated reservations to the unfettered use of the void ab initio doctrine contained in dicta in [Schadler v. Zoning Hearing Bd. of Weisenberg Twp., 578 Pa. 177 , 850 A.2d 619 (2004)] and Glen-Gery.

2020See Chicot Co. Drainage Dist. v. Baxter State Bank, 308 U.S. 371 , 60 S.Ct. 317 , 84 L.Ed. 329 (1940) (holding that the doctrine is unfair when the void law has caused reliance); Lemon v. Kurtzman, 411 U.S. 192 , 93 S.Ct. 1463 , 36 L.Ed.2d 151 (1973) (opining that an unconstitutional statute is not absolutely void but its one-time existence is a practical reality upon which people have relied and courts should recognize that reality).

2020See Chicot Co. Drainage Dist. v. Baxter State Bank, 308 U.S. 371 , 60 S.Ct. 317 , 84 L.Ed. 329 (1940) (holding that the doctrine is unfair when the void law has caused reliance); Lemon v. Kurtzman, 411 U.S. 192 , 93 S.Ct. 1463 , 36 L.Ed.2d 151 (1973) (opining that an unconstitutional statute is not absolutely void but its one-time existence is a practical reality upon which people have relied and courts should recognize that reality).

2021Additionally, “a challenge to the legality of the sentence can never be waived and may be raised by this Court sua sponte.” Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014). -5- J-S12008-21 “[A]n offense created by an unconstitutional law is not a crime and a conviction under it is illegal and void and cannot be a legal cause of imprisonment.” Commonwealth v. Derhammer, 173 A.3d 723, 728 (Pa. 2017) (quoting Ex Parte Siebold, 100 U.S. 371, 376-77 (1879)) (quotation marks, brackets, and ellipses omitted). “[A] statute which is stricken for constitutional infirmity must be regarded as v

2020See, e.g., People v. Gersch, 553 N.E.2d 281, 288 (Ill. 1990) (explaining that “in the area of criminal prosecution, the ab initio principle is especially appropriate”); Commonwealth v. Derhammer, 643 Pa. 391 , 399, 173 A.3d 723, 728 (2017) (“It is undisputed that a conviction based on an unconstitutional statute is a nullity.”).

2011This Court noted that “[i]n order to reach a presumption that acquiescence has occurred, the Supreme Court indicated, in dicta in Glen-Gery, that the lapse of time of some indefinite amount, coupled with some indication that persons interested in land use in a municipality have obeyed the ordinances purported to have been enacted, would suffice to support a decision electing not to apply the void ab initio doctrine despite evidence of defects in the enactment process....” Geryville Materials, Inc., 972 A.2d at 143 .

2010Rejecting this assertion, we explained, in part: Synthesizing the concerns expressed in Schadler and Glen-Gery over the possible excesses of the void ab initio doctrine, this Court has recently held in [Geryville Materials, 972 A.2d at 142-43 ]: In considering the language from Schadler and the Supreme Court’s reference thereto in Glen-Gery we understand that our Supreme Court had certain concerns about the application of the void ab initio doctrine, including that: (1) an overly aggressive application of the doctrine could result in excessive uncertainty; (2) the purpose of compliance with pr

2020See Chicot Co. Drainage Dist. v. Baxter State Bank, 308 U.S. 371 , 60 S.Ct. 317 , 84 L.Ed. 329 (1940) (holding that the doctrine is unfair when the void law has caused reliance); Lemon v. Kurtzman, 411 U.S. 192 , 93 S.Ct. 1463 , 36 L.Ed.2d 151 (1973) (opining that an unconstitutional statute is not absolutely void but its one-time existence is a practical reality upon which people have relied and courts should recognize that reality).

2020See Chicot Co. Drainage Dist. v. Baxter State Bank, 308 U.S. 371 , 60 S.Ct. 317 , 84 L.Ed. 329 (1940) (holding that the doctrine is unfair when the void law has caused reliance); Lemon v. Kurtzman, 411 U.S. 192 , 93 S.Ct. 1463 , 36 L.Ed.2d 151 (1973) (opining that an unconstitutional statute is not absolutely void but its one-time existence is a practical reality upon which people have relied and courts should recognize that reality).

2025See Messina, 62 A.3d at 369 n.2 (applying ab initio doctrine in the context of a procedural challenge under Section 5571.1).

2019Messina , 62 A.3d at 370 .

2022Under such circumstances, Section 304(a)(3) must be stricken from the PCCA and permanently enjoined from enforcement.28 See Robinson Twp.; see 28 “Under the void ab initio doctrine, a statute is held void in its entirety and ‘treated as if it had never existed.’ Hawk v. Eldred T[wp.] B[d.] of Supervisors, 983 A.2d 216 , 218 n.1 (Pa. Cmwlth. 2009).” Weidenhammer v. Workers’ Comp.

2020Under the void ab initio doctrine, a statute is held void in its entirety and “treated as if it had never existed.” Hawk v. Eldred Township Board of Supervisors, 983 A.2d 216 , 218 n.1 (Pa. Cmwlth. 2009).

2010In Luke v. Cataldi 593 Pa. 461 , 932 A.2d 45 (2007), our Supreme Court extended the void ab initio doctrine to procedurally defective conditional use applications, holding that the township’s failure to comply with the MPC public notice requirement for considering a conditional use application rendered a subsequent conditional use permit void ab ini-tio.

2010In Luke v. Cataldi 593 Pa. 461 , 932 A.2d 45 (2007), our Supreme Court extended the void ab initio doctrine to procedurally defective conditional use applications, holding that the township’s failure to comply with the MPC public notice requirement for considering a conditional use application rendered a subsequent conditional use permit void ab ini-tio.

2021Additionally, “a challenge to the legality of the sentence can never be waived and may be raised by this Court sua sponte.” Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014). -5- J-S12008-21 “[A]n offense created by an unconstitutional law is not a crime and a conviction under it is illegal and void and cannot be a legal cause of imprisonment.” Commonwealth v. Derhammer, 173 A.3d 723, 728 (Pa. 2017) (quoting Ex Parte Siebold, 100 U.S. 371, 376-77 (1879)) (quotation marks, brackets, and ellipses omitted). “[A] statute which is stricken for constitutional infirmity must be regarded as v

2020This void ab initio principle has been applied in the realm of criminal proceedings by the United States Supreme Court in the seminal case of Ex Parte Siebold, supra. This case established, as a fundamental principle of our system of jurisprudence, that an unconstitutional law cannot serve as the foundation of a court’s authority to try and imprison an individual, and, thus, criminal convictions and sentences based upon such unconstitutional laws must not be permitted to stand.

2021O’Lock v. Rundle, [ 204 A.2d 439, 441 (Pa. 1964)] (right to counsel established in Gideon v. Wainwright, 372 U.S. 335 [(1963)], applied to those convicted prior to Gideon decision). [The c]laimant acknowledges this reality but argues that the void ab initio doctrine can be applied to civil cases.

2021See, e.g., Atkins v. Virginia, 536 U.S. 304, 317 [(2002)] (prohibition of execution of mentally disabled individuals required evaluation of all death-row inmates to determine mental competency); Commonwealth ex rel.

2021Accord Commonwealth v. Wolfe, [ 140 A.3d 651, 661 (Pa. 2016)] (“[A] sentence based on an unconstitutional statute that is incapable of severance is void.”).

2021Additionally, “a challenge to the legality of the sentence can never be waived and may be raised by this Court sua sponte.” Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014). -5- J-S12008-21 “[A]n offense created by an unconstitutional law is not a crime and a conviction under it is illegal and void and cannot be a legal cause of imprisonment.” Commonwealth v. Derhammer, 173 A.3d 723, 728 (Pa. 2017) (quoting Ex Parte Siebold, 100 U.S. 371, 376-77 (1879)) (quotation marks, brackets, and ellipses omitted). “[A] statute which is stricken for constitutional infirmity must be regarded as v

2020Consistent with such sentiments, many courts came to recognize a “modern trend” away from applying the void ab initio doctrine, in favor of “a more equitable and realistic approach that is tempered by considerations of reasonableness and good-faith reliance on the purportedly valid statute.” Perlstein v. Wolk, 844 N.E.2d 923, 931 (Ill. 2006); see also id. at 929 (opining that strict application of the void ab initio doctrine [J-95-2019][M.O. – Saylor, C.J.] - 18 “unduly discounts the real-life consequences flowing from a statutory enactment”); accord Edwards v. Allen, 216 S.W.3d 278, 291 (Tenn

2020See Lemon, 411 U.S. at 208-09 , 93 S. Ct. at 1473 .16 And, notably, the lead opinion both pronounced that the prior decision finding a statute unconstitutional announced a new rule, see id. at 206 , 93 S. Ct. at 1472 , and engaged in a balancing assessment along the lines of the considerations delineated in Linkletter and Chevron, see id. at 199-209 , 93 S. Ct. at 1469-73 , albeit that the opinion blended the discussion of prospectivity and remedies.17 See generally Reynoldsville Casket, 514 U.S. at 754 , 115 S. Ct. at 1749 (positing that “the ordinary application of a new rule of law ‘backwar

2020See Lemon, 411 U.S. at 208-09 , 93 S. Ct. at 1473 .16 And, notably, the lead opinion both pronounced that the prior decision finding a statute unconstitutional announced a new rule, see id. at 206 , 93 S. Ct. at 1472 , and engaged in a balancing assessment along the lines of the considerations delineated in Linkletter and Chevron, see id. at 199-209 , 93 S. Ct. at 1469-73 , albeit that the opinion blended the discussion of prospectivity and remedies.17 See generally Reynoldsville Casket, 514 U.S. at 754 , 115 S. Ct. at 1749 (positing that “the ordinary application of a new rule of law ‘backwar

2020Consistent with such sentiments, many courts came to recognize a “modern trend” away from applying the void ab initio doctrine, in favor of “a more equitable and realistic approach that is tempered by considerations of reasonableness and good-faith reliance on the purportedly valid statute.” Perlstein v. Wolk, 844 N.E.2d 923, 931 (Ill. 2006); see also id. at 929 (opining that strict application of the void ab initio doctrine [J-95-2019][M.O. – Saylor, C.J.] - 18 “unduly discounts the real-life consequences flowing from a statutory enactment”); accord Edwards v. Allen, 216 S.W.3d 278, 291 (Tenn

2020Consistent with such sentiments, many courts came to recognize a “modern trend” away from applying the void ab initio doctrine, in favor of “a more equitable and realistic approach that is tempered by considerations of reasonableness and good-faith reliance on the purportedly valid statute.” Perlstein v. Wolk, 844 N.E.2d 923, 931 (Ill. 2006); see also id. at 929 (opining that strict application of the void ab initio doctrine [J-95-2019][M.O. – Saylor, C.J.] - 18 “unduly discounts the real-life consequences flowing from a statutory enactment”); accord Edwards v. Allen, 216 S.W.3d 278, 291 (Tenn

2020See, e.g., People v. Gersch, 553 N.E.2d 281, 288 (Ill. 1990) (explaining that “in the area of criminal prosecution, the ab initio principle is especially appropriate”); Commonwealth v. Derhammer, 643 Pa. 391 , 399, 173 A.3d 723, 728 (2017) (“It is undisputed that a conviction based on an unconstitutional statute is a nullity.”).

2020Consistent with such sentiments, many courts came to recognize a “modern trend” away from applying the void ab initio doctrine, in favor of “a more equitable and realistic approach that is tempered by considerations of reasonableness and good-faith reliance on the purportedly valid statute.” Perlstein v. Wolk, 844 N.E.2d 923, 931 (Ill. 2006); see also id. at 929 (opining that strict application of the void ab initio doctrine [J-95-2019][M.O. – Saylor, C.J.] - 18 “unduly discounts the real-life consequences flowing from a statutory enactment”); accord Edwards v. Allen, 216 S.W.3d 278, 291 (Tenn

2016However, our “Supreme Court has limited the application of the void ab initio doctrine to circumstances implicating notice, due process, or other constitutional rights of a party.” Falkler v. Lower Windsor Township Zoning Hearing Board, 988 A.2d 764, 767 (Pa. Cmwlth. 2010).