IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andrew F. Malone, :

Petitioner :

:

v. : No. 577 M.D. 2015

: Submitted: January 20, 2017

The Pennsylvania State Police of the :

Commonwealth of Pennsylvania, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: April 28, 2017

Before this Court are the preliminary objections of the Pennsylvania 

State Police in the nature of a demurrer to Andrew F. Malone’s petition for review 

seeking a declaratory judgment that he is exempt from the lifetime registration 

requirement in the Sexual Offender Registration and Notification Act (SORNA).

1

 

The petition also seeks a writ of mandamus to have Malone’s name removed from 

the State Police sex offender website. The petition asserts that the lifetime 

registration demanded by the State Police violates the terms of his plea agreement, 

as well as due process, and the ex post facto clauses of the United States and 

Pennsylvania Constitutions. For the reasons set forth below, we sustain, in part,

the State Police’s preliminary objections.

 

1

42 Pa. C.S. §§9799.10 – 9799.41. The case law refers to the Sexual Offender Registration and 

Notification Act as “SORNA” or “Megan’s Law IV.” See, e.g., Coppolino v. Noonan, 102 A.3d 

1254, 1258 (Pa. Cmwlth. 2014), affirmed, 125 A.3d 1196 (Pa. 2015). We refer to the act as 

“SORNA.”
2

Background

Malone’s petition alleges that, on January 5, 2004, he pled guilty to 

the offense of criminal attempt to commit involuntary deviate sexual intercourse. 

Petition for Review, ¶3. He was sentenced to 12 to 24 months, to be followed by 

five years of probation. The petition alleges that when Malone entered his guilty 

plea, he was informed that he would be required to register as a sexual offender for 

10 years. Id., ¶4. Malone registered as a sexual offender on June 14, 2004, and 

yearly thereafter for ten years. Id., ¶6. The petition asserts that Malone’s 

registration requirement should have expired on June 14, 2014. Id.

On December 3, 2012, the State Police notified Malone that as a Tier 

3 offender, he was required by SORNA to register as a sex offender for his entire 

lifetime. Petition for Review, ¶7. In addition, he would be subject to quarterly 

registration and internet notification. Id. Malone’s petition asserts that these

additional registration and notification requirements infringe upon his right not to 

lose his reputation without due process of law and violate the terms of his plea 

agreement. 

The State Police filed a demurrer, asserting that Malone’s pleading 

did not state a claim under the ex post facto clauses of the United States or 

Pennsylvania Constitutions or under the due process clause of the United States or 

Pennsylvania Constitutions. The State Police also demurred to Malone’s contract 

claim because it was not a party to the plea agreement between Malone and the 

Commonwealth.2

 

2 On preliminary objections, this Court’s review is limited to the pleadings. Pennsylvania State 

Lodge, Fraternal Order of Police v. Department of Conservation and Natural Resources, 909 

(Footnote continued on the next page . . . )
3

Ex Post Facto Claims

We begin with the State Police demurrer that SORNA’s registration 

and on-line notification provisions do not violate the ex post facto clauses of the 

United States and Pennsylvania Constitutions. Relying on this Court’s decision in 

Taylor v. Pennsylvania State Police, 132 A.3d 590 (Pa. Cmwlth. 2016), Malone 

responds that the viability of the notification provisions has not yet been decided 

and, thus, the demurrer should be overruled. 

Ex post facto laws are prohibited by the United States and

Pennsylvania Constitutions. As our Supreme Court explained:

the ex post facto clauses of the United States and Pennsylvania 

Constitutions are virtually identical in language, and the 

standards applied to determine ex post facto violations under 

both constitutions are comparable.

Commonwealth v. Allshouse, 36 A.3d 163, 184 (Pa. 2012). A law violates the ex 

post facto clause if it “changes the punishment, and inflicts a greater punishment 

than the law annexed to the crime when committed.” Id. 

 

(continued . . . )

A.2d 413, 415 (Pa. Cmwlth. 2006), affirmed, 924 A.2d 1203 (Pa. 2007). When reviewing 

preliminary objections, 

[this Court is] required to accept as true the well-pled averments set forth in the ... 

complaint, and all inferences reasonably deducible therefrom. Moreover, the 

[C]ourt need not accept as true conclusions of law, unwarranted inferences from 

facts, argumentative allegations, or expressions of opinion. In order to sustain 

preliminary objections, it must appear with certainty that the law will not permit 

recovery, and, where any doubt exists as to whether the preliminary objections

should be sustained, the doubt must be resolved in favor of overruling the 

preliminary objections.

Id. at 415-16 (citations omitted). 
4

In Coppolino, 102 A.3d 1254, we concluded that the majority of

SORNA’s registration requirements are not punitive and, thus, do not implicate ex 

post facto principles. However, we found the reporting requirement in Section 

9799.15(g) of SORNA to be punitive.3 Accordingly, we held that Section

 

3

Section 9799.15(g) states:

(g) In-person appearance to update information.--In addition to the periodic inperson appearance required in subsections (e), (f) and (h), an individual specified 

in section 9799.13 shall appear in person at an approved registration site within 

three business days to provide current information relating to:

(1) A change in name, including an alias.

(2) A commencement of residence, change in residence, 

termination of residence or failure to maintain a residence, thus 

making the individual a transient.

(3) Commencement of employment, a change in the location or 

entity in which the individual is employed or a termination of 

employment.

(4) Initial enrollment as a student, a change in enrollment as a 

student or termination as a student.

(5) An addition and a change in telephone number, including a cell 

phone number, or a termination of telephone number, including a 

cell phone number.

(6) An addition, a change in and termination of a motor vehicle 

owned or operated, including watercraft or aircraft. In order to 

fulfill the requirements of this paragraph, the individual must 

provide any license plate numbers and registration numbers and 

other identifiers and an addition to or change in the address of the 

place the vehicle is stored.

(7) A commencement of temporary lodging, a change in temporary 

lodging or a termination of temporary lodging. In order to fulfill 

the requirements of this paragraph, the individual must provide the 

specific length of time and the dates during which the individual 

will be temporarily lodged.

(8) An addition, change in or termination of e-mail address, instant 

message address or any other designations used in Internet 

communications or postings.

(Footnote continued on the next page . . . )
5

9799.15(g) could not be imposed on a sex offender convicted under a prior version 

of Megan’s Law. Coppolino, 102 A.3d at 1278; see also Taylor, 132 A.3d at 601 

(holding Section 9799.15(g) of SORNA to be punitive). Coppolino and Taylor

held that, save for Section 9799.15(g), the registration provisions of SORNA do 

not violate the ex post facto clauses of the United States or Pennsylvania 

Constitutions. Accordingly, we sustain the State Police’s preliminary objection to 

the ex post facto claim, except as it relates to Section 9799.15(g).

SORNA also imposes notification requirements upon sex offenders. 

See 42 Pa. C.S. §9799.28.4 In Taylor, we held that “the internet notification 

 

(continued . . . )

(9) An addition, change in or termination of information related to 

occupational and professional licensing, including type of license 

held and license number.

42 Pa. C.S. §9799.15(g).

4

It states, in relevant part:

(a) Information to be made available through Internet.--The Pennsylvania 

State Police shall, in the manner and form directed by the Governor:

(1) Develop and maintain a system for making information about 

individuals convicted of a sexually violent offense, sexually violent 

predators and sexually violent delinquent children publicly available by 

electronic means via an Internet website. In order to fulfill its duties under 

this section, the Pennsylvania State Police shall ensure that the Internet 

website:

(i) Contains a feature to permit a member of the public to 

obtain relevant information for an individual convicted of a 

sexually violent offense, a sexually violent predator or a sexually 

violent delinquent child by a query of the Internet website based on 

search criteria including searches for any given zip code or 

geographic radius set by the user.

(ii) Contains a feature to allow a member of the public to 

receive electronic notification when an individual convicted of a 

sexually violent offense, sexually violent predator or sexually 

violent delinquent child provides information under section 

(Footnote continued on the next page . . . )
6

 

(continued . . . )

9799.15(g)(2), (3) or (4) (relating to period of registration). This 

feature shall also allow a member of the public to receive 

electronic notification when the individual convicted of a sexually 

violent offense, sexually violent predator or sexually violent 

delinquent child moves into or out of a geographic area chosen by 

the user.

(iii) Includes in its design all field search capabilities needed 

for full participation in the Dru Sjodin National Sex Offender 

Public Internet Website. The Pennsylvania State Police shall 

ensure that the website is able to participate in the Dru Sjodin 

National Sex Offender Public Internet Website as the United States 

Attorney General may direct.

(iv) Is updated within three business days with the information 

required.

(2) Include on the Internet website the following:

(i) Instructions on how to seek correction of information that 

an individual contends is erroneous.

(ii) A warning that the information on the Internet website 

should not be used to unlawfully injure, harass or commit a crime 

against an individual convicted of a sexually violent offense, a 

sexually violent predator or a sexually violent delinquent child and 

that any such action could result in criminal or civil penalties.

* * *

(b) Required information.--Notwithstanding Chapter 63 (relating to juvenile matters) and 

18 Pa.C.S. Ch. 91 (relating to criminal history record information), the Internet website 

shall contain the following information regarding an individual convicted of a sexually 

violent offense, a sexually violent predator or a sexually violent delinquent child:

(1) Name and aliases.

(2) Year of birth.

(3) Street address, municipality, county, State and zip code of residences and 

intended residences. In the case of an individual convicted of a sexually violent 

offense, a sexually violent predator or a sexually violent delinquent child who 

fails to establish a residence and is therefore a transient, the Internet website shall 

contain information about the transient’s temporary habitat or other temporary 

place of abode or dwelling, including, but not limited to, a homeless shelter or 

park. In addition, the Internet website shall contain a list of places the transient 

eats, frequents and engages in leisure activities.

(4) Street address, municipality, county, State and zip code of any location at 

which an individual convicted of a sexually violent offense, a sexually violent 

predator or a sexually violent delinquent child is enrolled as a student.

(Footnote continued on the next page . . . )
7

provision of SORNA does not constitute an ex post facto law under the United 

States Constitution” as applied to the defendant. Taylor, 132 A.3d at 602. We 

further observed that “case law provides no clear answers” on whether the internet 

notification provisions are punitive. Id. at 604. We could not say with certainty 

that the ex post facto clause in Pennsylvania’s Constitution does not provide more 

 

(continued . . . )

(5) Street address, municipality, county, State and zip code of a fixed location 

where an individual convicted of a sexually violent offense, a sexually violent 

predator or a sexually violent delinquent child is employed. If an individual 

convicted of a sexually violent offense, a sexually violent predator or a sexually 

violent delinquent child is not employed at a fixed address, the information shall 

include general areas of work.

(6) Current facial photograph of an individual convicted of a sexually violent 

offense, a sexually violent predator or a sexually violent delinquent child. This 

paragraph requires, if available, the last eight facial photographs taken of the 

individual and the date each photograph was entered into the registry.

(7) Physical description of an individual convicted of a sexually violent 

offense, a sexually violent predator or a sexually violent delinquent child.

(8) License plate number and a description of a vehicle owned or operated by 

an individual convicted of a sexually violent offense, a sexually violent predator 

or a sexually violent delinquent child.

(9) Offense for which an individual convicted of a sexually violent offense, a 

sexually violent predator or a sexually violent delinquent child is registered under 

this subchapter and other sexually violent offenses for which the individual was 

convicted.

(10) A statement whether an individual convicted of a sexually violent offense, 

a sexually violent predator or a sexually violent delinquent child is in compliance 

with registration.

(11) A statement whether the victim is a minor.

(12) Date on which the individual convicted of a sexually violent offense, a 

sexually violent predator or a sexually violent delinquent child is made active 

within the registry and date when the individual most recently updated 

registration information.

(13) Indication as to whether the individual is a sexually violent predator, 

sexually violent delinquent child or convicted of a Tier I, Tier II or Tier III sexual 

offense.

(14) If applicable, indication that an individual convicted of a sexually violent 

offense, a sexually violent predator or a sexually violent delinquent child is 

incarcerated or committed or is a transient.

42 Pa. C.S. §9799.28(a), (b).
8

protection than the ex post facto clause in the United States Constitution with 

regard to the internet notification provision of SORNA. Id. Therefore, we 

overruled the State Police’s preliminary objections to the ex post facto claim under 

the Pennsylvania Constitution. Id.

Malone contends that SORNA’s internet notification provision 

violates the ex post facto clause of the Pennsylvania Constitution and, thus, we

must overrule the State Police demurrer. However, the State Police did not file a 

demurrer to Malone’s ex post facto challenge to SORNA’s internet notification 

provision under the Pennsylvania Constitution. It has confirmed this point in its

brief. State Police Reply Brief at 13. 

The State Police demur solely to Malone’s claim that the retroactive 

application of the internet notification provision of SORNA violates the ex post 

facto clause of the United States Constitution. In accordance with our decision in 

Taylor, we sustain this preliminary objection.

Procedural Due Process Under 14th Amendment

The petition asserts that the retroactive effect of SORNA has violated 

Malone’s rights under the 14th Amendment of the United States Constitution. U.S. 

CONST. amend. XIV, §1.5 The new registration requirements violated Malone’s 

procedural due process rights because he was not given an opportunity to challenge 

the registration requirements. SORNA presumes that all sex offenders pose a high 

risk, and this damages Malone’s reputation, which is protected by the due process 

 

5

Section 1 of the 14th Amendment states, in relevant part:

[N]or shall any state deprive any person of life, liberty, or property, without due 

process of law....

U.S. CONST. amend. XIV, §1.
9

clause.6 The State Police argue that the petition does not state a claim under the 

14th Amendment because it does not assert that SORNA has deprived Malone of

life, liberty or property. Notably, the State Police has not demurred to Malone’s 

substantive due process claims under the United States and Pennsylvania 

Constitutions nor has it demurred to Malone’s procedural due process claim under 

the Pennsylvania Constitution.

Due process is required under the 14th Amendment where the state 

seeks to deprive a person of a life, liberty or property interest. Pennsylvania Game 

Commission v. Marich, 666 A.2d 253, 255 (Pa. 1995). Reputational interests alone 

are insufficient to invoke federal due process guarantees. R. v. Department of 

Public Welfare, 636 A.2d 142, 149 (Pa. 1994) (citing Paul v. Davis, 424 U.S. 693 

(1976)) (“The United States Supreme Court has already held that reputation is not 

an interest which, standing alone, is sufficient to invoke the procedural protections 

of the Fourteenth Amendment’s due process clause.”). A due process claim for 

deprivation of a liberty interest in reputation may be made by showing a 

reputational stigma plus deprivation of another protected right or interest. Person 

v. Pennsylvania State Police Megan’s Law Section, (Pa. Cmwlth., No. 222 M.D. 

2013, filed November 3, 2015), Slip Op. at 11 (unreported) (quoting Hill v. 

Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) (emphasis in original)).7 

Under the “stigma-plus” test, a plaintiff must show “(1) some utterance of a 

 

6

“Unlike the Due Process Clause of the Fourteenth Amendment, our Supreme Court has 

acknowledged that reputation is protected under Article I, Section 1 of the Pennsylvania 

Constitution.... Accordingly, reputation is among the fundamental rights that cannot be abridged 

without compliance with state constitutional standards[.]” Taylor, 132 A.3d at 605.

7

Pursuant to Commonwealth Court Internal Operating Procedures §414(a), 210 Pa. Code 

§69.414(a), an unreported opinion of this Court may be cited for its persuasive value and not as 

binding precedent.
10

statement that is sufficiently derogatory to injure his or her reputation, which is 

capable of being proved false, and (2) some material and state-imposed burden or 

alteration of his or her status or of a right.” D.C. v. School District of Philadelphia, 

879 A.2d 408, 416 (Pa. Cmwlth. 2005).

In Person, we considered whether the internet publication of a sex 

offender’s name stated a claim under the due process clause of the 14th

Amendment. The petitioner argued that the internet publication along with other 

provisions in SORNA met the stigma-plus test for a due process claim. This Court 

observed that the “federal circuit courts appear to be split on whether state 

Megan’s Laws satisfy the “stigma-plus” test and the United States Supreme Court 

has yet to address this issue.” Person, Slip Op. at 11-12. Despite this uncertainty, 

we determined that the petitioner did not meet the “stigma-plus” test because the 

statements posted on the internet to which he objected were true. The petitioner 

pled guilty to a sexually violent offense and is currently registered with the State 

Police. Accordingly, we held that the petitioner did not state a due process claim 

under the 14th Amendment to the United States Constitution and sustained the 

demurrer. 

More recently, in Dougherty v. Pennsylvania State Police, 138 A.3d 

152 (Pa. Cmwlth. 2016), we again addressed this issue. Again, we sustained the 

demurrer to the petitioner’s due process claims under the 14th Amendment of the 

United States Constitution. Dougherty, 138 A.3d at 159. 

Malone’s petition asserts that he has a fundamental right to reputation, 

but he does not allege a deprivation of a life, liberty or property interest. In his 

brief, Malone simply asserts that all due process objections should be overruled 

and directs this Court to its decision in Taylor, 132 A.3d 590. Malone 
11

misunderstands Taylor, where we addressed due process claims under the 

Pennsylvania Constitution, not under the 14th Amendment of the United States 

Constitution. Accordingly, we sustain the preliminary objection to this claim.

Article I, Section 9 of Pennsylvania Constitution

The petition asserts that the retroactive application of SORNA

violated Malone’s rights under Article I, Section 9 of the Pennsylvania 

Constitution. PA. CONST. art. I, §9. The State Police asserts that this claim is 

legally insufficient because it does not involve a criminal prosecution. 

Article I, Section 9 of the Pennsylvania Constitution states as follows:

In all criminal prosecutions the accused hath a right to be heard 

by himself and his counsel, to demand the nature and cause of 

the accusation against him, to be confronted with the witnesses 

against him, to have compulsory process for obtaining 

witnesses in his favor, and, in prosecutions by indictment or 

information, a speedy public trial by an impartial jury of the 

vicinage; he cannot be compelled to give evidence against 

himself, nor can he be deprived of his life, liberty or property, 

unless by the judgment of his peers or the law of the land. The 

use of a suppressed voluntary admission or voluntary 

confession to impeach the credibility of a person may be 

permitted and shall not be construed as compelling a person to 

give evidence against himself.

PA. CONST. art. I, §9. Our Supreme Court has construed this provision to be the 

functional equivalent of the due process clause of the United States Constitution. 

Commonwealth v. Kratsas, 764 A.2d 20, 27 n.5 (Pa. 2001). 

In Dougherty, 138 A.3d 152, the petitioner asserted that the increase 

in the number of years he was required to register as a sex offender violated his 

right to due process under Article I, Section 9 of the Pennsylvania Constitution. 

The petitioner’s claims addressed the administrative action taken by the State 
12

Police well after his conviction and sentencing. Because his claims did not 

implicate his criminal prosecution, we sustained the State Police’s demurrer to this 

claim. Dougherty, 138 A.3d at 159. 

As in Dougherty, Malone’s claims do not implicate a criminal 

prosecution. Rather, they concern actions taken by the State Police nearly ten 

years after his conviction. Person, Slip Op. at 21 (sustaining demurrer because the 

petitioner’s claim did not implicate a criminal prosecution). We are constrained to 

sustain the State Police’s preliminary objection.

Breach of Contract

Malone’s petition asserts that the State Police’s registration 

requirements violate his plea agreement, which provided for no more than a tenyear registration. Attached to Malone’s petition is a certified copy of the 

judgment. It states that as a condition of sentence, Malone had to register under 

Megan’s Law, next to which is a hand-written notation “10 yr.” Petition for 

Review, Exhibit A. The State Police have demurred to Malone’s breach of 

contract claim for the stated reasons that it was not a party to the contract and that 

the claim belongs in another forum.

Although plea agreements arise “in a criminal context,” they are

“analyzed under contract law standards.” Commonwealth v. Hainesworth, 82 A.3d 

444, 449 (Pa. Super. 2013) (en banc) (citations omitted). Once a plea agreement 

has been accepted by a trial court, the defendant is “entitled to the benefit of his 

bargain[.]” Commonwealth v. Martinez, 147 A.3d 517, 532-33 (Pa. 2016). The 

Commonwealth must “abide by the terms of the plea agreement.” Commonwealth 

v. Spence, 627 A.2d 1176, 1184 (Pa. 1993) (citing Santobello v. New York, 404 

U.S. 257 (1971)). Further, courts demand “strict compliance” with the terms of a 
13

plea agreement “in order to avoid any possible perversion of the plea bargaining 

system[.]” Martinez, 147 A.3d at 532 (quoting Commonwealth v. Zuber, 353 A.2d 

441, 444 (Pa. 1976)). 

Where a dispute arises over any particular term of a plea agreement, 

courts will look to “what the parties to this plea agreement reasonably understood 

to be the terms of the agreement.” Hainesworth, 82 A.3d at 447 (quoting 

Commonwealth v. Fruehan, 557 A.2d 1093, 1095 (Pa. Super. 1989) (internal 

citations omitted)). A determination will be made “based on the totality of the 

surrounding circumstances,” and “[a]ny ambiguities in the terms of the plea 

agreement will be construed against the [Commonwealth].” Id. (quoting 

Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) (internal citations 

omitted)). 

In Martinez, our Supreme Court held that a defendant is entitled to 

specific performance of his plea agreement with regard to sexual offender 

registration requirements. Our Supreme Court explained that “the convicted 

criminal is entitled to the benefit of his bargain through specific performance of the 

terms of the plea agreement.” Martinez, 147 A.3d at 533. Because the 

Commonwealth stipulated that the ten-year registration was part of the plea 

agreement, the defendant was “entitled to the benefit of that bargain.” Id.

Similarly, in Hainesworth, the Pennsylvania Superior Court refused to 

give retroactive application to the SORNA registration requirements where it 

would breach the terms of a plea agreement. In that case, the defendant was not

required to register under Megan’s Law at the time he entered the plea agreement. 

Thereafter, SORNA established that one of the offenses to which he had pleaded 

guilty required registration. Concerned that he would have to register, the 
14

defendant sought to terminate his probation supervision prior to the effective date 

of SORNA. The trial court denied this petition, but it entered an order declaring

the defendant not subject to registration under SORNA. The Commonwealth 

appealed, and the Superior Court affirmed. It observed that terms of the 

defendant’s plea were carefully laid out on the record8and that the prosecutor 

stated that the defendant’s sentences were “not Megan’s Law.” Hainesworth, 82 

A.3d at 447. Accordingly, the defendant was entitled to specific performance of 

the terms of the plea bargain. 

Malone’s petition alleges that he “was instructed and entered into a 

plea agreement ... pursuant to an understanding and agreement that [he] was 

required to register as a sexual offender for only ten (10) years.” Petition for 

Review, ¶4. Malone asserts that he is entitled to specific performance of his plea 

agreement as a matter of contract law. He contends that the State Police actions 

violate his plea agreement, in violation of the Contract Clauses of the United 

States9and Pennsylvania10 Constitutions. 

In Dougherty, 138 A.3d at 160, this Court addressed this issue. We 

explained that the State Police’s role in the SORNA statutory scheme is 

ministerial. Accordingly, if the sentencing order includes a specific term of 

 

8

See Pennsylvania Rule of Criminal Procedure 590(B)(1), Pa. R. Crim. P. 590(B)(1), set forth 

infra.

9

It states, in relevant part, as follows:

No State shall ... pass any ... Law impairing the Obligation of Contracts ....

U.S. CONST. art I, §10, cl.1.

10 It states as follows:

No ex post facto law, nor any law impairing the obligation of contracts, or making 

irrevocable any grant of special privileges or immunities, shall be passed.

PA. CONST. art. I, §17.
15

registration, the State Police “is bound to apply the registration term included in 

the sentence and nothing more.” Id. (citing McCray v. Pennsylvania Department 

of Corrections, 872 A.2d 1127, 1133 (Pa. 2005)). If the sentencing order is unclear 

or ambiguous, the State Police may seek guidance from the sentencing court before 

applying the registration period upon a sexual offender. If the sentencing order is 

silent on the term of registration, the State Police must set the appropriate 

registration period in accordance with Section 9799.15 of SORNA, 42 Pa. C.S. 

§9799.15. However, the State Police does not have a duty, in any of these 

circumstances, to inquire into the content or intent of any underlying plea 

agreement. Dougherty, 138 A.3d at 160.

We further explained that the State Police is not a party to the plea 

agreement. Accordingly, when a dispute arises over an alleged breach of a plea 

agreement or its impact upon an offender’s duty to register, the dispute must be

resolved in a proceeding before the sentencing court. Id. We stated, “[s]uch

disputes should name the Commonwealth as the defendant as it is the 

Commonwealth, acting through the appropriate prosecutor, not the [State Police], 

who is a party to the plea agreement.” Id. Accordingly, we sustained the State 

Police’s preliminary objection alleging that it cannot be liable for a breach of the 

petitioner’s plea agreement to which it was not a party. Notably, the complaint in 

Dougherty did not contain any allegations about the sentencing order but only 

about the plea agreement. 

Pointing to Dougherty, Malone argues that the sentencing order 

attached to his petition must be accepted as true and this Court has authority to 

enforce the order. Malone misunderstands the State Police’s preliminary 

objection. It does not challenge the sufficiency of his claim related to enforcement 
16

of the terms of the sentencing order. Rather, it challenges Malone’s breach of 

contract claim, which is based upon the plea agreement.

As we explained in Dougherty, because the State Police was not a 

party to the plea agreement, a breach of contract action against the State Police is 

inappropriate. We sustain the State Police’s preliminary objection to this claim, 

which belongs in the appropriate court of common pleas. Although Malone 

attached the sentencing order to his petition, it is not the plea agreement. See Pa.

R. Crim. P. 590(B).11 The State Police is not a party to the plea agreement.

Conclusion

For the above-stated reasons, we hold as follows. We sustain the

demurrer that the petition does not state a claim under the ex post facto clause of 

the United States and Pennsylvania Constitutions, save for Section 9799.15(g) of 

SORNA. We sustain the demurrer that the petition does not state a claim under the 

ex post facto clause of the United States Constitution with respect to SORNA’s 

notification provision. We sustain the demurrer that the petition does not state a

 

11 Rule 590(B) of the Rules of Criminal Procedure states:

(B) Plea Agreements

(1) When counsel for both sides have arrived at a plea agreement, they 

shall state on the record in open court, in the presence of the defendant, the 

terms of the agreement, unless the judge orders, for good cause shown and 

with the consent of the defendant, counsel for the defendant, and the 

attorney for the Commonwealth, that specific conditions in the agreement 

be placed on the record in camera and the record sealed.

(2) The judge shall conduct a separate inquiry of the defendant on the 

record to determine whether the defendant understands and voluntarily 

accepts the terms of the plea agreement on which the guilty plea or plea of 

nolo contendere is based.

Pa. R. Crim. P. 590(B).
17

procedural due process claim under the 14th Amendment of the United States 

Constitution. We sustain the demurrer that the petition does not state a due process 

claim under Article I, Section 9 of the Pennsylvania Constitution. We sustain the 

demurrer to the petition’s breach of contract claim.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andrew F. Malone, :

Petitioner :

:

v. : No. 577 M.D. 2015

: 

The Pennsylvania State Police of the :

Commonwealth of Pennsylvania, :

Respondent :

O R D E R

AND NOW, this 28th day of April, 2017, the preliminary objections of 

the Pennsylvania State Police to the petition for review filed by Andrew F. Malone 

in the above-captioned matter are sustained with the exception of the petition’s 

challenge to Section 9799.15(g) of SORNA. The Pennsylvania State Police must

answer all remaining allegations including those to which preliminary objections 

have not been filed within 30 days of this Order.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge