severability clause in Pennsylvania

1996Thus, if a statute is partially valid and partially invalid, and "if the provisions are distinct and not so interwoven as to be inseparable ..., courts should sustain the valid portions." Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 320 , 196 A.2d 664, 666 (1964). *201 I now turn to applying the severability principle to 18 Pa.C.S. § 2506.

1996Thus, if a statute is partially valid and partially invalid, and "if the provisions are distinct and not so interwoven as to be inseparable ..., courts should sustain the valid portions." Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 320 , 196 A.2d 664, 666 (1964). *201 I now turn to applying the severability principle to 18 Pa.C.S. § 2506.

2015Co., 148 P.3d 832 , 839411 & nn. 32-44 (Okla.2005) (“[CJlearly most courts addressing the issue of whether a severability clause will render a clear and unambiguous exclusionary provision doubtful determine that the clear language of the exclusion must prevail.”); Am.

2015Co., 148 P.3d 832 , 839-41 & nn. 32-44 (Okla.2005) (“[Cjlearly most courts addressing the issue of whether a severability clause will render a clear and unambiguous exclusionary provision doubtful determine that the clear lan guage of the exclusion must prevail.”); Am.

2014I write further to express my disagreement with aspects of those decisions, especially in light of those Courts’ discussions of Commonwealth v. Watley, 81 A.3d 108 (Pa.Super.2013) (en banc), a decision I authored. 1 In my view, those provisions of Pennsylvania mandatory minimum stat-. utes affected by Alleyne v. United States, — U.S. -, 133 S.Ct. 2151 , 186 L.Ed.2d 314 (2013), are severable. 2 In Newman , this Court found, in pertinent part, that 42 Pa.C.S. § 9712.1(c), governing a burden of proof and declaring that possession of a firearm was not an element of the underlying crime, was not se

2014See Watley, supra; Matteson, supra. I believe the Newman Court and the trial court opinions it discussed misperceived the legislative intent analysis pertaining to the severability doctrine and did not consider what the legislature would have intended had it known that the burden of proof provisions of its mandatory statutes were unconstitutional.

1965See Turco Paint & Varnish Co. v. Kalodner, 320 Pa. 421 , 184 A. 37 .

1940In addition to what is said by Justice Barnes in his opinion in Commonwealth ex rel. v. Cunningham et ah, supra, it is only necessary to quote from the late case of Turco Paint & Varnish Co. v. Kalodner et al., 320 Pa. 421 , 436: “For it is a well-recognized rule that a court will never heed objections to the constitutionality of an act of assembly unless the complainant is affected by the particu lar feature alleged to be in conflict with the Constitution: Mesta Machine Co. v. Dunbar F. Co., 250 Pa. 472 ; Plymouth Coal Co. v. Com. of Pa., 232 U. S. 531 ; Smith v. McCarthy, 56 Pa. 359, 362 .”

2022Fellerman v. - 15 - J-A25034-21 PECO Energy Co., 159 A.3d 22 , 29 (Pa. Super. 2017); MacPherson, 128 A.3d at 1225-26.

2022MacPherson, 128 A.3d at 1222-26.

2026The Grossman Court concluded that all evidence must be suppressed because “the warrant authorizing the seizure of ‘all files’ was unconstitutionally overbroad in its failure to describe as specifically as was reasonably possible the three files described in the affidavit for which there was probable cause.” Grossman, 555 A.2d at 900.

2026However, we apply the severability doctrine, which “mandates that invalid portions of a search warrant may be stricken and the remaining portions held valid, as long as the remaining portions of the warrant describe with particularity the evidence to be seized.” Commonwealth v. Bagley, 596 A.2d 811, 824 (Pa. Super. 1991).

2023See generally Commonwealth v. Ani, 293 A.3d 704 , 729 (Pa. Super. 2023) (citing Commonwealth v. Casuccio, 454 A.2d 621 , 630 (Pa. Super. 1982)). -8- J-A15044-23 unconstitutionally overbroad, and the Commonwealth should have been barred from using that Fourth Amendment violation to secure Hall’s conviction. -9-

2023See generally Commonwealth v. Ani, 293 A.3d 704, 729 (Pa. Super. 2023) (citing Commonwealth v. Casuccio, 454 A.2d 621, 630 (Pa. Super. 1982)). -8- J-A15044-23 unconstitutionally overbroad, and the Commonwealth should have been barred from using that Fourth Amendment violation to secure Hall’s conviction. -9-

2023See generally Commonwealth v. Ani, 293 A.3d 704 , 729 (Pa. Super. 2023) (citing Commonwealth v. Casuccio, 454 A.2d 621 , 630 (Pa. Super. 1982)). -8- J-A15044-23 unconstitutionally overbroad, and the Commonwealth should have been barred from using that Fourth Amendment violation to secure Hall’s conviction. -9-

2023See generally Commonwealth v. Ani, 293 A.3d 704, 729 (Pa. Super. 2023) (citing Commonwealth v. Casuccio, 454 A.2d 621, 630 (Pa. Super. 1982)). -8- J-A15044-23 unconstitutionally overbroad, and the Commonwealth should have been barred from using that Fourth Amendment violation to secure Hall’s conviction. -9-

2023Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa.Super. 2012).

2022Fellerman v. - 15 - J-A25034-21 PECO Energy Co., 159 A.3d 22 , 29 (Pa. Super. 2017); MacPherson, 128 A.3d at 1225-26.

2022Fellerman, 159 A.3d at 28-29; Davis, slip op. at 13-14.

2021See id.

2020See, e.g., 1 Pa.C.S. §1921(a), (b); Commonwealth v. Kirkner, 805 A.2d 514, 516-17 (Pa. 2002) (“[A] statute cannot be modified by judicial discretion, no matter how well-intentioned.”) (citations omitted).

2019See Commonwealth v. Seskey, 170 A.3d 1105 (Pa.Super. 2017) (maximum term of life imprisonment required for juvenile convicted of first- degree homicide); Commonwealth v. Olds, --- A.3d ---, 2018 WL 3233726 (Pa.Super. 2018) (maximum term of life imprisonment required for juvenile -4- J-A30016-17 convicted of second-degree homicide).1 However, the issue of what minimum must be imposed, if any, is a separate question.

2017See 1 Pa.C.S. § 1925 (requiring courts, in the event that “any provision of any statute or the application thereof to any person or circumstance is held invalid” to determine if the void provision may be severed from the remaining valid portions of the statute (emphasis added)); Commonwealth v. Qu'eed Batts, 163 A.3d 410, 441 (Pa. 2017) (noting that a severability analysis is required if a provision of a statute is invalidated “as applied to any situation or person.”).

2017See 1 Pa. C.S. § 1925 (requiring courts, in the event that “any provision of any statute or the application thereof to awy person or, circumstance is held invalid” to determine if the void provision may be severed from the remaining valid portions of the statute (emphasis added)); Commonwealth v. Qu’eed Batts, — Pa. —, 163 A.3d 410, 441 (2017) (noting that a severability analysis is required if a provision of a statute is invalidated “as applied to any situation or person.”).

2015Appellants also underscore the Agreement’s severability clause, which “indicates that the intention was not to make the [NAF] integral, [but] rather only to have a dispute resolution process through arbitration.” Appellants’ Reply Brief at 3 (quoting Jones v. GGNSC Pierre LLC, 684 F.Supp.2d 1161, 1167 (D.S.D.2010)).

2015Appellants also underscore the Agreement’s severability clause, which “indicates that the intention was not to make the [NAF] integral, [but] rather only to have a dispute resolution process through arbitration.” Appellants’ Reply Brief at 3 (quoting Jones v. GGNSC Pierre LLC, 684 F. Supp. 2d 1161, 1167 (D.S.D. 2010)).

2015Based on the Stewart court’s findings, Appellee argues that the severability clause is irrelevant since “the NAF Code specifically allows the parties to pursue their ‘legal remedies’ in court.” Id. at 27 (citing Miller v. GGNSC Atlanta, LLC, 323 Ga.App. 114 , 746 S.E.2d 680, 687 (2013) (finding in an analogous case that “if the NAF is unavailable, the parties are free to seek legal remedies—ie., to file a traditional lawsuit”)).

2015Based on the Stewart court’s findings, Appellee argues that the severability clause is irrelevant since “the NAF Code specifically allows the parties to pursue their ‘legal remedies’ in court.” Id. at 27 (citing Miller v. GGNSC Atlanta, LLC, 323 Ga.App. 114 , 746 S.E.2d 680, 687 (2013) (finding in an analogous case that “if the NAF is unavailable, the parties are free to seek legal remedies—ie., to file a traditional lawsuit”)).