J-A25023-16

 2016 PA Super 275

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JOSEPH W. PILCHESKY,

Appellee No. 195 MDA 2016

Appeal from the Order Entered November 23, 2015

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0001075-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

OPINION BY SHOGAN, J.: FILED DECEMBER 06, 2016

The Commonwealth appeals from the order entered on November 23, 

2015, granting the petition for writ of habeas corpus filed by Joseph W. 

Pilchesky (“Pilchesky”). After careful consideration, we reverse and remand 

for further proceedings. 

The Commonwealth charged Pilchesky with four counts of the 

unauthorized practice of law in violation of 42 Pa.C.S. § 2524(a) on 

February 27, 2013. Pilchesky proceeded pro se and waived his preliminary 

hearing. Following multiple pro se filings, counsel was appointed.

On August 20, 2015, Pilchesky filed an omnibus pretrial motion, which 

included a petition for writ of habeas corpus. Omnibus Pretrial Motion Nunc 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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Pro Tunc, 8/20/15, at 4-5. In the petition for writ of habeas corpus, 

Pilchesky argued that “[a] writ of habeas corpus should issue in this case 

and the charges for unlawful practice of law [should be] dismissed since a 

prima facie case cannot be established.” 1 Id. at 4. Specifically, Pilchesky 

asserted the following:

[I]n order for a prima facie case for unauthorized practice of law 

to be made under [42 Pa.C.S.] § 2524, the Commonwealth must 

establish that [Pilchesky] practiced law in such a manner as to 

convey the impression that he is a practitioner of the law of any 

jurisdiction, without being an attorney at law.

Id. at 5. 

The trial court granted Pilchesky’s omnibus pretrial motion in part and 

scheduled a hearing on the petition for writ of habeas corpus for 

September 23, 2015. Order, 8/27/15, at 1. At the hearing, both parties 

presented argument regarding the elements necessary to establish a prima 

facie case of the unauthorized practice of law. N.T., 9/23/15, at 6-22. 

During the hearing, the trial court concluded that a person charged with the 

unauthorized practice of law must do so in a manner so as to convey the 

impression that he is a practitioner of the law when, in fact, he is not, in 

order for the individual to be convicted. Id. at 21. Following the trial court’s 

determination, the Commonwealth requested certification for purposes of an 

____________________________________________

1

 “A pre-trial habeas corpus motion is the proper means for testing whether 

the Commonwealth has sufficient evidence to establish a prima facie case.” 

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016) (en 

banc).
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immediate appeal, and Pilchesky did not object. Id. at 22. Accordingly, the 

trial court continued the habeas hearing pending the appeal to this Court. 

Id. Subsequently, the trial court issued an order on November 23, 2015, 

that provided as follows:

1. The Petition of [Pilchesky] for a Writ of Habeas 

Corpus is hereby GRANTED;

2. The Commonwealth shall be required to prove at trial 

beyond a reasonable doubt that the actions of [Pilchesky] were 

committed in such a manner as to convey the impression that he 

is a practitioner of the law of any jurisdiction, without being an 

attorney at law or a corporation complying with 15 Pa.C.S. Ch. 

29 (relating to professional corporations);

3. We are of the opinion that this Order involves a 

controlling question of law as to which there is substantial 

ground for difference of opinion and, further, that an immediate 

appeal to the Superior Court of Pennsylvania from this Order 

may materially advance the ultimate termination of this matter.

Order, 11/23/15, at 1-2. 

On December 23, 2015, the Commonwealth filed a petition for 

permission to appeal in this Court. Petition for Permission to Appeal, 

12/23/15. By order filed February 2, 2016, this Court granted the 

Commonwealth’s petition for permission to appeal. Order, 83 MDM 2015, 

2/2/16.

The Commonwealth presents the following issue for our review:

Did the trial [court] err in holding that the Commonwealth was 

required to prove at trial that Pilchesky not only practiced law 

within the Commonwealth without being licensed but also that 

he did so in such a manner as to convey the impression that he 

is a practitioner of the law of any jurisdiction when, based on the 

plain language of the statute and the rules of statutory 
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construction, the latter is not an element of the offense as 

charged[?]

Commonwealth’s Brief at 4 (full capitalization omitted). 

Specifically, the Commonwealth asserts that based on the language of 

the unauthorized practice of law statute and the rules of statutory 

construction, the Commonwealth need prove only that Pilchesky engaged in 

the practice of law within the Commonwealth without being licensed to do 

so. Commonwealth’s Brief at 12-20. The Commonwealth maintains that the 

trial court erred when it ruled that in order to convict Pilchesky of the 

unauthorized practice of law, the Commonwealth must additionally prove 

that Pilchesky practiced law in such a manner as to convey the impression 

that he is a practitioner of law. Id. at 12. 

Conversely, Pilchesky maintains that in order to find that he engaged 

in the unauthorized practice of law, the Commonwealth must establish that 

he practiced law without a license and did so in such a manner as to convey 

the impression that he was a practitioner of the law. Pilchesky’s Brief at 3. 

Accordingly, Pilchesky asserts that the trial court’s holding is correct. Id. 

When reviewing a claim that raises an issue of statutory construction, 

our standard of review is plenary.2 Commonwealth v. Wilson, 111 A.3d 

____________________________________________

2

 We note that in evaluating a trial court’s decision regarding a pretrial 

habeas corpus motion, our standard of review is also plenary. Dantzler, 

135 A.3d at 1112.
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747, 751 (Pa. Super. 2015). We recognize the following principles with 

regard to statutory construction:

Our task is guided by the sound and settled principles set 

forth in the Statutory Construction Act, including the primary 

maxim that the object of statutory construction is to ascertain 

and effectuate legislative intent. 1 Pa.C.S. § 1921(a). In 

pursuing that end, we are mindful that “[w]hen the words of a 

statute are clear and free from all ambiguity, the letter of it is 

not to be disregarded under the pretext of pursuing its spirit.” 1 

Pa.C.S. § 1921(b). Indeed, “[a]s a general rule, the best 

indication of legislative intent is the plain language of a statute.” 

In reading the plain language, “[w]ords and phrases shall be 

construed according to rules of grammar and according to their 

common and approved usage,” while any words or phrases that 

have acquired a “peculiar and appropriate meaning” must be 

construed according to that meaning. 1 Pa.C.S.1903(a). 

However, when interpreting non-explicit statutory text, 

legislative intent may be gleaned from a variety of factors, 

including, inter alia: the occasion and necessity for the statute; 

the mischief to be remedied; the object to be attained; the 

consequences of a particular interpretation; and the 

contemporaneous legislative history. 1 Pa.C.S. § 1921(c). 

Moreover, while statutes generally should be construed liberally, 

penal statutes are always to be construed strictly, 1 Pa.C.S. § 

1928(b)(1), and any ambiguity in a penal statute should be 

interpreted in favor of the defendant.

Notwithstanding the primacy of the plain meaning doctrine 

as best representative of legislative intent, the rules of 

construction offer several important qualifying precepts. For 

instance, the Statutory Construction Act also states that, in 

ascertaining legislative intent, courts may apply, inter alia, the 

following presumptions: that the legislature does not intend a 

result that is absurd, impossible of execution, or unreasonable; 

and that the legislature intends the entire statute to be effective 

and certain. 1 Pa.C.S. § 1922(1),(2). Most importantly, the 

General Assembly has made clear that the rules of construction 

are not to be applied where they would result in a construction 

inconsistent with the manifest intent of the General Assembly. 1 

Pa.C.S. § 1901.
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Wilson, 111 A.3d at 751 (quoting Commonwealth v. Shiffler, 879 A.2d 

185, 189–190 (Pa. 2005)). The Statutory Construction Act requires that a 

reviewing court give full meaning and effect to all words of a statute. 

Commonwealth v. Schley, 136 A.3d 511, 516 (Pa. Super. 2016) (citing 1 

Pa.C.S. § 1921(a)).

The statute defining the unauthorized practice of law provides, in 

relevant part, as follows:

(a) General rule.--Except as provided in subsection (b) 

[related to practice by associations], any person, including, but 

not limited to, a paralegal or legal assistant, who within this 

Commonwealth shall practice law, or who shall hold himself out 

to the public as being entitled to practice law, or use or advertise 

the title of lawyer, attorney at law, attorney and counselor at 

law, counselor, or the equivalent in any language, in such a 

manner as to convey the impression that he is a practitioner of 

the law of any jurisdiction, without being an attorney at law or a 

corporation complying with 15 Pa.C.S. Ch. 29 (relating to 

professional corporations), commits a misdemeanor of the third 

degree upon a first violation. A second or subsequent violation 

of this subsection constitutes a misdemeanor of the first degree.

42 Pa.C.S. § 2524(a).

Based on the plain language of the statute, we agree with the 

interpretation advanced by the Commonwealth. The language in this section 

is disjunctive, as reflected by the drafter’s use of “or” throughout. “We are 

bound to give ‘or’ its normal disjunctive meaning unless its ordinary meaning 

would ‘produce a result that is absurd or impossible of execution or highly 

unreasonable....’” In re Fiedler, 132 A.3d 1010, 1022 (Pa. Super. 2016) 

(quoting Commonwealth ex rel. Specter v. Vignola, 285 A.2d 869, 871 
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(Pa. 1971). The clause “without being an attorney at law or a corporation 

complying with 15 Pa.C.S. Ch. 29 . . . commits a misdemeanor of the third 

degree upon a first violation,” is read in conjunction with each of the 

classifications defining the commission of the unauthorized practice of law. 

As such, we interpret this provision to set forth three different ways the 

statute can be violated by an individual who is not an attorney at law or a 

corporation complying with 15 Pa.C.S. Ch. 29. The first is the practice of law 

by someone not licensed, as indicated by the language “any person . . . who 

within this Commonwealth shall practice law...without being an attorney at 

law.” 42 Pa.C.S. § 2524(a). The second is by someone “who shall hold 

himself out to the public as being entitled to practice law . . . without being 

an attorney at law.” Id. The third is by one who “use[s] or advertise[s] the 

title of lawyer, attorney at law, attorney and counselor at law, counselor, or 

the equivalent in any language, in such a manner as to convey the 

impression that he is a practitioner of the law of any jurisdiction, without 

being an attorney at law.” Id. Thus, the subject language, “in such a 

manner as to convey the impression that he is a practitioner of law” that 

Pilchesky asserts is an additional requirement to the crime of unauthorized 

practice of law when one practices law without being an attorney, is in fact 

the basis for the third outlined violation. It is not an additional element 

necessary to be proven in order for there to be a violation of the statute in 

the first two proscribed scenarios.
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Additionally, if the subject language, “in such a manner as to convey 

the impression that he is a practitioner of law” were to be applied to each of 

the classifications, such application to the second would be redundant. As 

written, the second scenario already includes as part of the violation the 

requirement that the individual hold himself out to the public as a 

practitioner. We cannot agree that such duplication of language was 

intended by the drafters of this provision. See Commonwealth, Office of 

Governor v. Donahue, 98 A.3d 1223, 1238 (Pa. 2014) (stating that under 

the statutory construction act, a statute “must ‘be construed, if possible, to 

give effect to all its provisions,’ so that no provision is reduced to mere 

surplusage.”). Additionally, it is presumed that the legislature does not 

intend an absurd or unreasonable result. Donahue, 98 A.3d at 1238; 1 

Pa.C.S. § 1922(1).

Furthermore, we consider the legislative intent behind this statutory 

provision. As our Supreme Court has explained:

The Pennsylvania Constitution vests with our Court the 

exclusive authority to regulate the practice of law, which 

includes the power to define what constitutes the practice of law. 

Pa. Const. Art. V, § 10(c); Dauphin County Bar Association v. 

Mazzacaro, 465 Pa. 545, 351 A.2d 229, 233 (1976). What 

constitutes the practice of law, however, is not capable of a 

comprehensive definition. For this reason, our Court has not 

attempted to provide an all-encompassing statement of what 

activities comprise the practice of law. Office of Disciplinary 

Counsel v. Marcone, 579 Pa. 1, 855 A.2d 654, 660 (2004); 

Shortz et al. v. Farrell, 327 Pa. 81, 193 A. 20, 21 (1937). 

Thus, we have determined what constitutes the practice of law 

on a case-by-case basis.
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While our Court has addressed the question of what 

constitutes the practice of law on an individualized basis, we 

have made clear that paramount to the inquiry is consideration 

of the public interest. Marcone, 855 A.2d at 658; Dauphin 

County, 351 A.2d at 233. Consideration of the public interest 

has two related aspects: protection of the public and prudent 

regulation so as not to overburden the public good.

Regarding the protection of the public, then Justice, later 

Chief Justice Stern perhaps best summarized this aspect of the 

Court’s concern in Shortz, “While in order to acquire the 

education necessary to gain admission to the bar and thereby 

become eligible to practice law, one is obliged to ‘scorn delights, 

and live laborious days,’ the object of the legislation forbidding 

practice to laymen is not to secure to lawyers a monopoly, 

however deserved, but, by preventing the intrusion of inexpert 

and unlearned persons in the practice of law, to assure to the 

public adequate protection in the pursuit of justice, than which 

society knows no loftier aim.” Shortz, 193 A. at 24.

Harkness v. Unemployment Compensation Bd. of Review, 920 A.2d 

162, 166-167 (Pa. 2007).

Indeed, our Supreme Court has made clear that persons not licensed 

are prohibited from practicing law in order to protect the public:

A layman who seeks legal services often is not in a position 

to judge whether he will receive proper professional attention. 

The entrustment of a legal matter may well involve the 

confidences, the reputation, the property, the freedom, or even 

the life of the client. Proper protection of members of the 

public demands that no person be permitted to act in the 

confidential and demanding capacity of a lawyer unless he 

is subject to the regulations of the legal profession.

Indeed, the bar itself actually arose out of a public demand 

for the exclusion of those who assume to practice law without 

adequate qualifications therefor. To practice law a person must 

demonstrate a reasonable mastery of legal skills and principles, 

be a person of high moral character and maintain a continuing 

allegiance to a strict code of professional conduct. These 

stringent requirements are intended to protect and secure the 
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public’s interest in competent legal representation. It is to 

guard against the impairment of this interest that the 

practice of law by persons who are not authorized to do 

so is forbidden.

Dauphin County Bar Ass’n v. Mazzacaro, 351 A.2d 229, 232-233 (Pa. 

1976) (internal citations and quotation marks omitted) (emphases added). 

Thus, it is apparent that the intent behind this statutory provision is 

protection of the public. Protection of the public is accomplished by 

preventing those who are not attorneys from practicing law. Harkness, 920 

A.2d at 167. Accordingly, one who is not an attorney yet practices law 

violates this provision. There is no additional requirement that the individual 

do so “in such a manner as to convey the impression that he is a practitioner 

of law” in order to be convicted under the statute. 

Consequently, we conclude that the trial court erred by holding that in 

order for Pilchesky to be convicted of the unauthorized practice of law, the 

Commonwealth is required to establish that Pilchesky practiced law and that 

he did so “in such a manner as to convey the impression that he is a 

practitioner of the law.” Should the Commonwealth establish beyond a 

reasonable doubt that Pilchesky practiced law and was not an attorney, such 

evidence would be sufficient to convict Pilchesky of the unauthorized practice 

of law under 42 Pa.C.S. § 2524(a). Thus, we are constrained to reverse the 

trial court’s holding in this matter and remand for proceedings consistent 

with this Opinion
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Order reversed. Matter remanded for proceedings consistent with this 

Opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016