IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amro Elansari, :

Petitioner :

:

v. : No. 663 M.D. 2020

:

The Commonwealth of Pennsylvania, :

Respondent : Submitted: August 9, 2024

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: September 16, 2024

Before this Court are Preliminary Objections (POs) filed by the 

Commonwealth of Pennsylvania (Commonwealth) in response to a petition for 

review (PFR) filed by Amro Elansari (Petitioner), pro se, that raises due process and 

equal protection claims under the Fourteenth Amendment of the United States 

Constitution.1 By way of relief, Petitioner seeks declaratory relief that would 

legalize the growing of marijuana for personal use and mandamus relief in the form 

of an order directing the expungement of criminal records for individuals convicted 

for the possession and distribution of marijuana under The Controlled Substance, 

Drug, Device and Cosmetic Act (CSA).2 

1 Section 1 of the Fourteenth Amendment relevantly provides that “[n]o State shall make 

or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection 

of the laws.” U.S. Const. amend. XIV, § 1.

2 Act of April 14, 1972, P.L. 64, as amended, 35 P.S. §§ 780-101 – 780-144. 
2

The Commonwealth’s POs seek the dismissal of Petitioner’s PFR on the 

following bases: (1) Petitioner failed to effectuate proper service of the PFR; (2) the 

Commonwealth is not a proper party; (3) this Court does not have original 

jurisdiction over Petitioner’s PFR; and (4) Petitioner has failed to state viable equal 

protection and due process claims.

After careful review, we overrule the Commonwealth’s first PO, as the record 

demonstrates that Petitioner properly served the PFR. We sustain the 

Commonwealth’s second PO to the extent the PFR seeks mandamus relief. We

sustain the Commonwealth’s third PO to the extent the PFR raises a claim in the 

nature of an application for writ of habeas corpus or post-conviction relief. Finally, 

because the PFR fails to state viable equal protection and due process claims, we 

sustain the Commonwealth’s fourth PO and dismiss the PFR. 

I. Background

On April 9, 2015, Petitioner was convicted of possessing a small amount of 

marijuana in violation of Section 13(a)(31) of CSA.

3

 On November 5, 2015, 

Petitioner was found guilty of violating several provisions of the CSA, including 

Section 13(a)(16),4 which prohibits the possession of a controlled substance without 

a valid prescription, and Section 13(a)(30),5 which prohibits the manufacture, 

3

35 P.S. § 780-113(a)(31). Section 13(a)(31) prohibits the possession of a small amount 

of marijuana for personal use, with the intent to distribute it but not for sale, or the distribution 

thereof but not for sale. 

4

35 P.S. § 780-113(a)(16).

5

35 P.S. § 780-113(a)(30).
3

delivery, or possession with intent to manufacture a controlled substance. All 

convictions were upheld on appeal.6 

Petitioner brought the instant PFR pursuant to 42 U.S.C. § 1983,7 alleging that 

the Commonwealth violated Petitioner’s equal protection and due process rights 

under the Fourteenth Amendment when it legalized the growing, sale, and 

distribution of medical marijuana under the Medical Marijuana Act (MMA)8 while 

continuing to prosecute Petitioner and others under the CSA for engaging in the 

same conduct. Petitioner suggests that the Commonwealth, by enacting the MMA,

has recognized the medical necessity of marijuana. At the same time, the 

Commonwealth, by convicting individuals for possessing marijuana, falsely 

represents that marijuana “has no medicinal value[,]” which Petitioner contends is 

an unconstitutional violation of “the due process rights of people[.]” PFR, ¶¶ 19-20. 

Accordingly, Petitioner requests a declaration that marijuana may be legally grown 

for personal use and that the current restrictions on growing marijuana are 

unconstitutional. Petitioner also requests the expungement of all criminal records 

for individuals convicted of possessing and distributing marijuana. 

6

See Com. v. Elansari (Pa. Super., No. 773 MDA 2015, filed Feb. 24, 2016); Com. v. 

Elansari (Pa. Super., No. 2235 MDA 2015, filed October 18, 2016). 

7 Enacted as part of the Civil Rights Act of 1871, Section 1983 authorizes a civil action 

against a “person who, under color of any statute, ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of 

the United States or other person within the jurisdiction thereof to the deprivation of any rights, 

privileges, or immunities secured by the Constitution and laws[.]” 42 U.S.C. § 1983. A claim

under Section 1983 requires that the petitioner establish that some person has deprived him of a 

cognizable federal right and that the person deprived him of a federal right while acting under 

color of state law. Urbanic v. Rosenfeld, 616 A.2d 46, 479-80 (Pa. Cmwlth. 1992). 

8 Act of April 17, 2016, P.L. 84, as amended, 35 P.S. §§ 10231.101-10231.2110.
4

The Commonwealth filed POs to the PFR on June 16, 2021, the first of which 

asserts that Petitioner failed to serve the PFR as required by Pa.R.A.P. 1514(c) (Rule 

1514(c)), which specifies that a copy of the PFR “shall be served by the petitioner 

in person or by certified mail on both the government unit that made the 

determination sought to be reviewed and the Attorney General of Pennsylvania.” 

The Commonwealth’s second PO argues that the Commonwealth is not a proper 

party and that Petitioner should have named a specific agency or individual that acted 

on the Commonwealth’s behalf. The Commonwealth’s third PO objects to the PFR 

on the basis that this Court does not have jurisdiction because the PFR is essentially

an attempt by Petitioner to relitigate the validity of his criminal convictions. The 

Commonwealth’s fourth PO argues that Petitioner has failed to state a viable equal 

protection or due process claim. By way of relief, the Commonwealth requests that 

this Court dismiss the PFR.

In his Response to Preliminary Objections (Response), contrary to the relief 

expressly sought in the PFR, Petitioner denies that he sought the decriminalization 

of marijuana. Instead, Petitioner lodges a constitutional challenge to the MMA on 

the basis that it violates federal law and permits “defective marijuana [that is]

contaminated with chemicals” to be sold at an “exorbitant” cost. Petitioner’s Br. at 

3. Petitioner also questions whether, following the enactment of the MMA, the 

Commonwealth can prohibit him from growing marijuana for personal use.9 

9 Petitioner subsequently filed an Emergency Petition that sought to enjoin the sale of 

certain types of medical marijuana and to enjoin the prohibition against growing marijuana for 

personal use. Defect Correction Notices sent to Petitioner on October 6, 2021 and October 20, 

2021, indicated that the Emergency Petition had not been properly served. Both notices indicated 

that, if Petitioner failed to file a proof of service within 14 days, the matter would be considered 

abandoned. A June 16, 2022 per curiam order of this Court noted that Petitioner had not filed the 

requested proof of service and, therefore, the Emergency Petition was deemed abandoned.
5

II. Discussion

In ruling on POs, we must accept as true all well-pleaded material facts in the 

petition for review and all inferences reasonably deducible therefrom. Torres v. 

Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010). We are not required to accept as 

true any conclusions of law, unwarranted inferences from facts, argumentative 

allegations, or expressions of opinion. Id. POs testing the legal sufficiency of a 

pleading will be sustained only where the pleading clearly fails to state a claim for 

which relief may be granted. Id. 

A. Service

The Commonwealth’s first PO objects to the PFR on the basis that Petitioner 

only sent the PFR by first-class and electronic mail, which is not proper service under 

Rule 1514(c). The Commonwealth requests that the PFR be dismissed, with 

prejudice, or alternatively, that this Court direct Petitioner to comply with the service 

requirements of Rule 1514(c). Petitioner maintains that he properly served the PFR, 

as evidenced by a proof of service attached to his brief, along with email 

correspondence between Petitioner and counsel for the Commonwealth, which 

demonstrates that the Commonwealth received the PFR.

10

We disagree with the Commonwealth that Petitioner failed to properly serve 

the PFR. While the proof of service Petitioner initially filed indicates that he only 

emailed copies of the PFR to then-Attorney General Josh Shapiro (AG Shapiro) and 

to Bernie Cantorna, the District Attorney of Centre County (DA Cantorna),

11

10 The documents attached to Petitioner’s Response reflect his attempts to serve his 

Emergency Petition, not the PFR.

11 It is not clear from the PFR, Petitioner’s response to the Commonwealth’s POs, or 

Petitioner’s brief why DA Cantorna was served a copy of the PFR. 
6

Petitioner filed a second proof of service on January 21, 2021, certifying that copies 

of the PFR were sent to AG Shapiro and DA Cantorna by certified mail on January 

4, 2021. As service by certified mail is specifically provided for in Rule 1514(c), 

we overrule the Commonwealth’s PO challenging service of the PFR.

B. Misjoinder

The Commonwealth’s second PO objects to the PFR on the basis that the 

Commonwealth is an improper party because an action may only be brought against 

the Commonwealth where a cause of action exists, and a right of action has been 

authorized by statute. The Commonwealth points out that the relevant provisions of 

the CSA, which prohibit the possession of marijuana and the possession thereof with 

the intent to deliver, do not authorize a cause of action against the Commonwealth.

Petitioner responds that the Commonwealth is a proper party because this 

matter concerns a policy instituted by the Commonwealth “as a whole” that violates 

the Fourteenth Amendment to the United States Constitution. PFR ¶ 13. Petitioner 

suggests that the Fourteenth Amendment is the “statute” that authorizes his cause of 

action, and he maintains that, because the Commonwealth ratified the Fourteenth

Amendment, his constitutional claims are not barred by sovereign immunity. 

Petitioner relies on Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. 

247 (2011) (VOPA), in which the United States Supreme Court held that an 

exception to sovereign immunity permitted a lawsuit brought by an independent 

state agency against state officials, which alleged violations of federal law. 

Sovereign immunity protects a state from “being hauled into court without its 

consent.” VOPA, 563 U.S. at 258. Article I, section 11 of the Pennsylvania 

Constitution relevantly provides that “suits may be brought against the 
7

Commonwealth in such manner, in such courts and in such cases as the Legislature 

may by law direct.” To that end, Pa.R.Civ.P. 2102 (Rule 2102) provides that, while 

“[a]n action by the Commonwealth” may be brought in the name of “the 

Commonwealth of Pennsylvania,” an action against a “Commonwealth agency or 

party” generally may not.12 Citing article I, section 11 of the Pennsylvania 

Constitution and 1 Pa.C.S. § 2310,13 the note to Rule 2102 explains that the only 

exception to sovereign immunity is where there is a cause of action against the 

Commonwealth generally and an express right of action against the Commonwealth 

generally has been authorized by statute. Furthermore, Section 8521(a) of the 

Judicial Code, 42 Pa.C.S. § 8521(a), states that, except as otherwise provided, “no 

provision of [Title 42] shall constitute a waiver of sovereign immunity.” Section 

8522(b) of the Judicial Code, 42 Pa.C.S. § 8522(b), establishes the circumstances 

for which sovereign immunity is waived by a Commonwealth party, which is 

defined in Section 8501 of the Judicial Code, 42 Pa.C.S. § 8501, as “[a] 

Commonwealth agency and any employee thereof, but only with respect to an act 

within the scope of his office or employment.” Sovereign immunity does not bar, 

however, a declaratory judgment action or injunction that seeks to prohibit state 

parties from acting. Finn v. Rendell, 990 A.2d 100, 105 (Pa. Cmwlth. 2010). 

Furthermore, a mandamus action “will lie to compel a state officer or agency to 

perform a ministerial or mandatory duty.” Id. 

12 Unless otherwise proscribed by the Pennsylvania Rules of Appellate Procedure, matters 

brought within this Court’s original jurisdiction proceed in accordance with the practice and 

procedure in the courts of common pleas. Pa.R.A.P. 106 and 1517. 

13 Section 2310 reaffirms sovereign immunity for the Commonwealth and its officials and 

employees, when acting within the scope of their duties, “except as the General Assembly shall 

wait the immunity.” 1 Pa.C.S. § 2310.
8

At the outset, we reject Petitioner’s argument that VOPA supports his position 

that the Commonwealth has waived sovereign immunity. The statutory scheme 

involved in VOPA offered funding to states in exchange for creating a protection and 

advocacy (P&A) system to improve medical care for individuals with developmental 

disabilities or mental illness.14 To that end, Virginia appointed an independent state 

agency, VOPA, to oversee its P&A system, and authorized VOPA to litigate the 

rights of disabled individuals free of executive branch oversight. The relevant 

enabling federal legislation explicitly provided that a P&A agency “shall . . . have 

access to all records” of individuals who may have been abused, as well as any 

records deemed relevant for conducting an investigation.15 As part of its 

investigation into the alleged abuse of patients at state-run mental institutions, 

VOPA requested patient records from the state officials in charge of those 

institutions. When the state officials refused to provide the requested records, VOPA 

filed an action in federal court, seeking declaratory and injunctive relief. 

In reviewing whether VOPA’s lawsuit was barred by sovereign immunity, the 

United States Supreme Court noted that States have retained their traditional 

immunity from suit and that, absent waiver or abrogation of sovereign immunity by 

Congress, federal courts could “not entertain a private person’s suit against a State.” 

VOPA, 563 U.S. 253-54. Ultimately, however, the VOPA Court held that VOPA’s 

lawsuit was not barred by sovereign immunity because Virginia law created VOPA 

and gave it the power to sue state officials. 

Instantly, the Commonwealth is correct that none of the provisions in the CSA 

cited by Petitioner authorize a right of action against the Commonwealth. This does 

14 See 42 U.S.C. § 15043(a)(1).

15 42 U.S.C. § 15043(a)(2)(I)(iii)(II); 42 U.S.C. § 15043(a)(2)(J)(i).
9

not end our inquiry, however. Although the allegations and averments in the PFR 

are inartfully stated and Petitioner makes sweeping generalizations regarding the 

alleged constitutional violations, the PFR clearly requests declaratory and 

mandamus relief, which are not automatically barred by sovereign immunity. By 

way of declaratory relief, the PFR expressly requests a declaration that the CSA’s 

restriction on growing marijuana for personal use is unconstitutional. That the 

Response Petitioner subsequently filed expressly denies requesting that relief is of 

no moment. Sovereign immunity does not bar Petitioner’s claims to the extent they 

request declaratory relief. 

Insofar as the PFR seeks mandamus relief, however, we agree with the 

Commonwealth that the Commonwealth is not a proper party. A writ of mandamus 

is an extraordinary remedy that is used to compel the performance of a ministerial 

act or mandatory duty. DeGeorge v. Young, 892 A.2d 48, 51 (Pa. Cmwlth. 2006). 

Mandamus relief may only be granted where the moving party establishes a clear 

legal right, a corresponding duty on the part of the respondents, and the lack of any 

other appropriate and adequate remedy. “A mandatory duty is ‘one which a public 

officer is required to perform upon a given state of facts and in a prescribed manner 

in obedience to the mandate of legal authority.’” Savage v. Storm, 257 A.3d 187, 

191 (Pa. Cmwlth. 2021) (internal citations omitted). In essence, an action in 

mandamus requires “that a specific actor has a non-discretionary duty to perform a 

particular act.” Finn, 990 A.2d at 106. The Commonwealth is “an entity separate 

from its agencies and officers[.]” Id. at 105. Thus, “a request that the 

Commonwealth be ordered to do something begs the question which of the many 

actors comprising state government is to be held accountable.” Finn, 990 A.2d at 

106. Merely naming the Commonwealth is not sufficient to state a claim against a 
10

Commonwealth party. Tork-Hiis v. Com., 735 A.2d 1256, 1259 (Pa. 1999). 

Therefore, it seems “self-evident that[,] if a specific state party can be identified as 

having a mandatory or ministerial duty, that party must be the named defendant, both 

in order to make out a cause of action in mandamus and to effectuate enforcement 

of any ensuing order.” Finn, 990 A.2d at 106. Accordingly, because Petitioner 

cannot seek mandamus relief against the Commonwealth generally, we sustain the 

Commonwealth’s second PO, to the extent the PFR constitutes an action in 

mandamus. 

C. Jurisdiction

Next, the Commonwealth objects to the PFR on jurisdictional grounds, as this 

Court does not have jurisdiction over “[a]ctions or proceedings in the nature of 

applications for writ of habeas corpus or post-conviction relief not ancillary to 

proceedings within the appellate jurisdiction of the [Commonwealth Court].” 42 

Pa.C.S. § 761(a)(1)(i). The Commonwealth maintains that, although Petitioner has 

purportedly brought his case under 42 U.S.C. § 1983, and he makes broad claims 

regarding the constitutionality of the CSA, the essence of Petitioner’s PFR is that, 

because Pennsylvania has legalized medical marijuana, Petitioner was unfairly 

punished for growing and selling marijuana. Thus, the Commonwealth requests that 

this Court dismiss the PFR, to the extent Petitioner indirectly attacks his criminal 

convictions.

Petitioner strenuously denies that the PFR challenges his prior convictions for 

possessing and distributing marijuana. Instead, Petitioner insists that he is pursuing 

equal and due process claims because the Commonwealth has legalized medical 

marijuana through the MMA but continues to prosecute individuals under the CSA 

for engaging in the same conduct. Petitioner rejects the MMA as a scam that he 
11

alleges financially benefits Pennsylvania lawmakers while violating federal law. 

Regarding Petitioner’s mandamus request for the expungement of criminal records, 

Petitioner notes that he seeks the expungement of all criminal records that reflect

convictions for the possession and distribution of marijuana. 

Section 761(a)(1) of the Judicial Code, 42 Pa.C.S. § 761(a)(1), relevantly 

provides that this Court has original jurisdiction over all civil actions or proceedings 

against the Commonwealth government, except “actions or proceedings in the nature 

of applications for a writ of habeas corpus or post-conviction relief” that are not 

ancillary to proceedings within this Court’s appellate jurisdiction. Our starting point 

for determining the nature of a given claim requires an examination of the requested 

relief’s effect in light of the legal theories offered in support. Scott v. Pa. Bd. of 

Prob. & Parole, 284 A.3d 178, 189 (Pa. 2022). “[I]f the necessary consequence of 

granting relief based on the supplied arguments is that the conviction or sentence is 

undone or otherwise modified, then the claim is in the ‘nature of . . . a writ of habeas 

corpus or post-conviction relief.’” Id.

Instantly, Petitioner seeks a declaration from this Court that would legalize

marijuana for personal use. Assuming arguendo that this Court has the authority to 

grant the requested relief, which it does not, such a declaration would have no effect 

on Petitioner’s prior convictions under the CSA for possession and distribution of 

marijuana. Although we have already concluded that sovereign immunity bars 

Petitioner’s claim for mandamus relief, we will still address whether Petitioner’s

expungement request is in the nature of an application for a writ of habeas corpus or 

post-conviction relief. 

The term “expunge” under Section 9102 of the Criminal History Record 

Information Act (CHRIA) means:
12

(1) [t]o remove information so that there is no trace or 

indication that such information existed;

(2) to eliminate all identifiers [that] may be used to 

trace the identity of an individual, allowing 

remaining data to be used for statistical purposes; or

(3) maintenance of certain information required or 

authorized under the provisions of [42 Pa.C.S. § 

9122(c)] (relating to expungement), when an 

individual has completed the conditions of any pretrial 

or posttrial diversion or probation program.

18 Pa.C.S. § 9102 (emphasis added).

It is irrelevant that the relief Petitioner seeks would affect other individuals 

convicted of possessing and distributing marijuana, as Petitioner’s conviction would 

essentially be “undone or otherwise modified,” should we grant the requested relief. 

Therefore, to the extent the PFR seeks the expungement of criminal records, we are 

obligated to conclude that it is in the nature of a writ of habeas corpus. The 

Commonwealth is correct that this Court does not have jurisdiction over such 

matters.

16

16 The Post Conviction Relief Act (PCRA) is the “sole means of obtaining collateral relief 

and encompasses all other common law and statutory remedies . . . including habeas corpus[.]” 42 

Pa.C.S § 9542. Generally, when a matter is brought in a court that does not have jurisdiction, the 

court shall not dismiss the matter, but shall transfer the record thereof to the proper tribunal. 42 

Pa.C.S. § 5103(a) (transfer of erroneously filed matters). In this instance, for the sake of judicial 

economy, we decline to transfer Petitioner’s mandamus claim to the appropriate court, as Section 

9545 of the PCRA, 42 Pa.C.S. § 9545, requires that a PCRA petition must be filed within one year 

of the date a petitioner’s judgment of sentence becomes final. Any petition seeking postconviction relief from Petitioner’s 2015 convictions would be unquestionably untimely. Transfer 

of a case is not warranted where a PCRA petition would be dismissed as untimely. Boyd v. Pa’s

Sentencing Scheme for Sentencing 18 Year Old’s [sic] to Mandatory Life Without Parole, 311 A.3d 

63, 72 (Pa. Cmwlth. 2024).
13

We could not grant Petitioner mandamus relief even if this Court accepted his 

argument that the PFR does not seek relief in the nature of a writ of habeas corpus, 

or if the Commonwealth was a proper party, because the averments in the PFR do 

not satisfy the requirements for mandamus. Petitioner has not established a clear 

legal right to the requested expungement order, as the expungement of criminal 

history record information may only be granted under the “very limited 

circumstances that are set forth by statute” following an individual’s conviction of 

the offenses charged. Com. v. Moto, 23 A.3d 989, 993 (Pa. 2011). Section 9122 of 

CHRIA, 18 Pa.C.S. § 9122,

17 which governs the expungement of criminal history 

record information, does not provide for the statewide expungement thereof. 

Petitioner has also not asserted a corresponding duty on the part of the 

Commonwealth or the absence of other appropriate and adequate remedies.

Accordingly, to the extent the PFR may be characterized as an action or 

proceeding in the nature of application for a writ of habeas corpus or post-conviction 

relief, we sustain the Commonwealth’s third PO. 

17 Section 9122(a)-(a.1) of CHRIA provides for the mandatory expungement of criminal 

history record information in the following circumstances: (1) no disposition has been received or 

recorded within 188 months after the date of arrest and the court of proper jurisdiction certified 

that no disposition is available and no action is pending; (2) a court order requires the expungement 

of non-conviction data; (3) a person 21 years of age or older who has satisfied all terms and 

conditions of the sentence imposed for a conviction of underage drinking; (4) the defendant has 

been acquitted; or (5) in cases for which a pardon has been granted. Criminal history record 

information may be expunged under Section 9122(b) of CHRIA, 18 Pa.C.S. § 9122(b), in the 

following circumstances: (1) when an individual who has reached 70 years of age has been free of 

arrest or prosecution for 10 years after final release from confinement or supervision; (2) an 

individual has been dead for 3 years; or (3) an individual convicted of a summary offense has been 

free of arrest or prosecution for 5 years following conviction for that offense. 
14

D. Failure to State a Claim

The Commonwealth’s final PO contends that Petitioner has failed to set forth 

a valid equal protection or due process claim. The Commonwealth asserts that the 

legalization of medical marijuana in the MMA and prohibition against possessing or 

distributing marijuana under the CSA does not raise equal protection concerns, as 

growing and selling marijuana is not a fundamental right. The Commonwealth also 

argues that Petitioner’s substantive due process claim fails to identify the nature of 

the right implicated. 

Petitioner rejoins that equal protection is implicated by the Commonwealth’s 

production of medical marijuana in violation of federal law while simultaneously 

charging individuals under the CSA. Petitioner maintains that he is treated 

differently from elected officials, whom he alleges “profit from selling medical 

marijuana scam toxic concentrates[.]” Petitioner’s Answer to Commonwealth POs 

¶ 35. At the same time, Petitioner is prevented from “growing the exact same 

plant[.]” Id. 

Section 1 of the Fourteenth Amendment relevantly provides that “[n]o State 

shall make or enforce any law which shall . . . deny to any person within its 

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The 

essence of equal protection under the law is that like persons in like circumstances 

should be treated similarly by the sovereign. Conrad v. Dep’t of Transp. (Workers’ 

Comp. Appeal Bd.), 310 A.3d 1274, 1283 (Pa. Cmwlth. 2024). Equal protection 

principles do not strip the General Assembly of its power to classify, however, or to 

prohibit the “differential treatment of persons having different needs.” Id. (internal 

citations omitted). To state an equal protection claim, a petitioner must allege that 

he has been “intentionally treated differently from others similarly situated and that 
15

there is no rational basis for the difference in treatment.” Rivera v. Silbaugh, 240 

A.3d 229, 242 (Pa. Cmwlth. 2020) (internal citations omitted). The legal framework 

for evaluating an equal protection challenge to a statutory classification consists of 

the following three classifications, each of which has its own standard of review: (1) 

classifications that implicate a suspect class or a fundamental right; (2) 

classifications that implicate an important right or sensitive classification; or (3) 

classifications that implicate none of these. Probst v. Dep’t of Transp., Bureau of 

Driver Licensing, 849 A.2d 1135, 1143-44 (Pa. 2004) (internal citations omitted). 

Classifications falling into the first category are strictly construed in light of a 

compelling governmental purpose. Id. at 1144. A classification that falls in the 

second category is subject to a heightened standard of scrutiny that is applied to an 

important governmental purpose. Id. When a statutory scheme falls into the third 

category, the statute is upheld if any rational basis exists for the classification.

Instantly, Petitioner has not identified any right – fundamental, important, or 

otherwise – that is implicated by the MMA or CSA, and he does not claim to be part 

of a suspect class. Petitioner simply asserts, without benefit of supporting legal 

authority, that permitting the sale of medical marijuana under the MMA while 

enforcing the prohibition of personal use marijuana under the CSA constitutes an 

infringement of Petitioner’s liberty and property interests. Under Petitioner’s 

reasoning, this matter is subject to strict scrutiny simply because he alleges an equal 

protection violation. 

We do not agree, as growing marijuana for personal use is not a 

constitutionally protected right. Indeed, we do not discern how Petitioner has been 

subject to differential treatment, as an individual convicted for possessing and 

distributing marijuana under the CSA is not similarly situated to a licensed medical 
16

marijuana grower and processor that is legally permitted to cultivate and 

manufacture medical marijuana products under the MMA. In the absence of a 

suspect class or a fundamental right, or an important right or sensitive classification, 

we conclude that the rational basis test applies to the General Assembly’s 

classification of those who are permitted to grow marijuana and those who are not. 

The rational basis test employs a two-step analysis. First, we determine 

whether the challenged statute seeks to promote a legitimate state interest or public 

value. Kramer v. Workers’ Comp. Appeal Bd. (Rite Aid Corp.), 883 A.2d 518, 534

(Pa. 2005). If so, we then determine whether the legislative classification is 

reasonably related to accomplishing that state interest. Id. The classification need 

only be directed at the accomplishment of a legitimate governmental interest and do 

so in a manner that is not arbitrary or unreasonable. Id. Under a rational basis 

analysis, the General Assembly is not required to “specifically articulate the purpose 

or rationale supporting its action.” Id. It is enough that some rationale may 

conceivably be the purpose and policy underlying the enactment. Id. Courts are free 

to hypothesize as to why the General Assembly created the classification at issue 

and, if a legitimate reason exists therefore, the provision cannot be struck down, even 

if its soundness or wisdom could be deemed questionable. Id.

In enacting the MMA, the General Assembly declared that scientific evidence

suggested that medical marijuana could “mitigate suffering in some patients and also 

enhance quality of life.”18 Section 102(2) of the MMA states that “[t]he 

Commonwealth is committed to patient safety” and that careful regulation of a 

medical marijuana program that “allows access to medical marijuana [would] 

18 Section 102(1) of the MMA, 35 P.S. § 10231.102(1).
17

enhance patient safety while research into its effectiveness continues.”19 Per Section 

102(3) of the MMA, 35 P.S. § 10231.102(3), the intent of the General Assembly in 

enacting the MMA is to

(i) [p]rovide a program of access to medical marijuana [that] 

balances the need of patients to have access to the latest 

treatments with the need to promote patient safety[;]

(ii) [p]rovide a safe and effective method of delivery of 

medical marijuana to patients[;] and 

(iii) [p]rovide high quality research into the effectiveness and 

utility of marijuana.

Any “Commonwealth-based program” providing access to medical marijuana 

is a “temporary measure, pending Federal approval of and access to medical 

marijuana through traditional medical and pharmaceutical avenues.”20 

Section 4(1)(iv) of the CSA,

21 on the other hand, designates marijuana as a 

Schedule I controlled substance, which is a substance found by the Secretary of 

Health of the Commonwealth of Pennsylvania to have “a high potential for abuse, 

no currently accepted medical use in the [United States], and a lack of accepted 

safety for use under medical supervision.”22 

We reject Petitioner’s argument that this differential treatment of marijuana, 

and marijuana users, implicates the equal protection under the Fourteenth

Amendment. The MMA established a limited and specific program whereby 

19 35 P.S. § 10231.102(2). 

20 35 P.S. § 10231.102(4).

21 35 P.S. § 780-104(1)(iv).

22 35 P.S. § 780-104(1).
18

medical marijuana could be legally obtained. The MMA was not enacted for the 

purpose of removing marijuana that is not subject to regulation, testing, or approval, 

from the list of Schedule I controlled substances in the CSA. In point of fact, 

Petitioner acknowledges in his principal brief that the Commonwealth “[arguably]

has a right to regulate the commerce of cannabis to promote safety.” Petitioner’s Br. 

at 10. Petitioner’s personal objections to what he considers overpriced and 

“nutrient[-]deprived chemical[ly] contaminated”23 medical marijuana is not relevant 

to our analysis. The General Assembly has a legitimate governmental interest in 

patient safety. Because the MMA’s stated purpose of creating a carefully regulated 

medical marijuana program that provides access to medical marijuana in an effort to 

“mitigate suffering in some patients and also enhance quality of life” is reasonably 

related to accomplishing that interest,

24 the MMA passes equal protection scrutiny 

under the rational basis test and is, therefore, constitutionally sound. 

Petitioner’s substantive due process claim suffers from the same defect as his 

failed equal protection claim. As a preliminary matter, for substantive due process 

rights to attach, there must be a deprivation of a property right or other 

constitutionally protected interest. Khan v. State Bd. of Auctioneer Exam’rs, 842 

A.2d 936, 946 (Pa. 2004). Thus, the threshold inquiry for a constitutional challenge 

based on substantive due process grounds is whether the challenged statute purports 

to restrict or regulate a constitutionally protected right. To withstand a substantive 

due process challenge, a statute must seek to achieve a valid state objective by means 

that are rationally related thereto, which requires that the statute have a real and 

substantial relationship to the object sought to be obtained. Id. A substantive due 

23 Petitioner’s Br. at 12.

24 Section 102(1) of the MMA, 35 P.S. § 10231.102(1).
19

process analysis requires that the rights of the individual be balanced against the 

public interest. Id. 

Instantly, Petitioner has not specified the constitutionally protected right or 

interest that has been violated, beyond an asserted “fundamental right to be free from 

unequal protection and unfairness in the deprivation of liberty under the color and 

authority of law[,] which is a fundamental right in and of itself.” Petitioner’s Br. at 

14. Indeed, Petitioner appears to concede that our decision here “ultimately comes 

down to whether or not the [General Assembly’s] justification for the [MMA] is 

sufficient or insufficient.” Id. at 15. In the absence of a constitutionally protected 

right or interest that is infringed by the MMA, we conclude that Petitioner has failed 

to state a viable substantive due process claim. 

Based on the above discussion, because Petitioner has failed to state viable 

equal protection and substantive due process claims, we sustain the 

Commonwealth’s fourth PO.25

III. Conclusion

Because Petitioner served the PFR in accordance with the requirement of Rule 

1514(c), we overrule the Commonwealth’s first PO. We sustain the 

Commonwealth’s second PO to the extent the PFR seeks mandamus relief and 

sustain the Commonwealth’s third PO to the extent the PFR raises a claim in the 

nature of an application for writ of habeas corpus or post-conviction relief. 

25 It should be noted that, while the PFR purports to raise claims under 42 U.S.C. §1983, 

the PFR contains no averments that anyone has deprived Petitioner of a cognizable federal right 

while acting under color of state law. 
20

Petitioner has failed to state viable equal protection and due process claims. 

Accordingly, we sustain the Commonwealth’s fourth PO and dismiss the PFR.

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amro Elansari, :

Petitioner :

:

v. : No. 663 M.D. 2020

:

The Commonwealth of Pennsylvania, :

Respondent :

O R D E R

AND NOW, this 16th day of September, 2024, the preliminary objection of 

the Commonwealth of Pennsylvania (Commonwealth) as to service of a Petition for 

Review filed by Amro Elansari (Petitioner) is hereby OVERRULED. Whereas

Petitioner’s claim for mandamus relief cannot be maintained against the 

Commonwealth generally and this Court does not have jurisdiction over claims in 

the nature of an application for writ of habeas corpus or post-conviction relief, and

Petitioner has failed to state viable equal protection and due process claims, the 

Commonwealth’s remaining preliminary objections are hereby SUSTAINED. The 

Petition for Review is hereby DISMISSED. 

ELLEN CEISLER, Judge