42 Pa.C.S. §8933, Limiting Issuing Authorities’ Power To Dismiss Felonies When Victims or Commonwealth Attorney Fail to Appear, Declared Unconstitutional/ Parts of Legislative Enactments Not Germane To The Enactments Main Purpose are Unconstitutional

Sernovitz, et al. v. Dershaw, et al., 2012 PA Super. 248, November 14, 2012 (29 pages)

This is a medical malpractice case wherein a statute that barred Pennsylvania courts from hearing the cause of action was declared unconstitutional because it was not germane to the main purpose of the legislation that enacted the statute. As a result of the Court’s ruling in this case, several statutes enacted as part of the legislation that had nothing to do with what the Superior Court deemed the primary purpose of the legislation— post-trial matters in criminal cases— were declared unconstitutional.


The plaintiffs were parents who were expecting a baby. Suspecting that their ethnic heritage made it reasonably likely that any child the couple conceived might suffer from certain genetic disorders, their doctor recommended, and the couple agreed, that they should undergo testing to determine if they carried the suspect genes. Although the testing revealed that the mother carried a gene mutation that causes familial dysautonomia, none of the doctors who met with the plaintiffs and knew the results of the testing informed them: to the contrary, they told the couple there were not problems. Later that year the mother gave birth to a child who had familial dysautonomia.  They sued their doctors and anyone else who could and should have informed them of the results for expenses related to the birth and care of their son, and for emotional distress and related claims.  Since 42 Pa.C.S. §8305 bars lawsuits for wrongful birth, they also challenged its constitutionality, alleging that in violation of Article III, Sections 1, 3, and 4 of the Pennsylvania Constitution.

Article III contains most of the Pennsylvania Constitutions rules regarding the creation and passage of legislation. § 1 states, “No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, as to change its original purpose.”  §4 provides, “Every bill shall be considered on three different days in each House,” and goes on to set forth other measures that help ensure that legislators have ample opportunity to learn what legislation is being considered and the publics knows how members voted on it. This case, however, turned only on §3,  which provides, “No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.”  In short— outside of appropriations bills and legislative “housekeeping” bills—all provisions of a bill passed by the Legislature must be germane to the bill’s main purpose.


§3 restrains the legislative process in a way to encourage open, deliberative and accountable government.  It prevents the attachments or riders to bills that would not pass on their own, provides for meaningful consideration of legislation before it is passed, and protect the integrity of the governor’s veto by allowing its use to be targeted only at legislation the governor does not want to sign.


Acknowledging that determining what is and is not germane to a piece of legislation can trample on the Legislature’s power to craft and pass legislation, the Court applied tests developed over the last ninety years by the Pennsylvania Supreme Court. Its review of this particular legislation’s history led it to conclude that its main focus was changes in the handling of post-trial matters in criminal cases. The description of what happened is beyond the scope of what needs discussing here, but it is comprehensive and is yet another illustration of American poet John Godfrey Saxe’s oft quoted (and nearly always misattributed to Otto von Bismark) observation, “Laws, like sausages, cease to inspire respect in proportion as we know how they are made.”  The Court found the other provisions of the law not germane, and therefore unconstitutional. These included the wrongful death statute, and 42 Pa.C.S. §8933, barring issuing authorities from dismissing felony cases where the victim of Commonwealth attorney fails to appear in the absence of reasonable attempts to ascertain why they did not come. Because the parts of the legislation concerning post-trial matters in criminal cases were severable, they survived.


It being unlikely that the Legislature last acted in haste in crafting and passing a bill, this situation is bound to occur again.  Therefore before acquiescing in the application of a new criminal aw a brief examination of its provenance.


The case may be found here.



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