Expungement / Record Sealing Petition and Eligibility Memo — Pennsylvania

Expungement / Record Sealing Petition and Eligibility Memo — Pennsylvania

Part A — Eligibility Memorandum

To: [CLIENT NAME]

From: [ATTORNEY NAME / FIRM]

Date: [__/__/____]

Re: Pennsylvania expungement or limited-access eligibility

1. Relief Types

Do not call limited access “expungement” or use Rule 790 for a § 9122.1 petition. Rule 791 governs petition-based limited access.

2. Record Inventory

3. Expungement — § 9122

A. Statutory Categories

• ☐ No disposition is available in the repository after 18 months, no action is pending, and the court supplies the certification required by § 9122(a)(1).
• ☐ A court order requires expungement of nonconviction data under § 9122(a)(2).
• ☐ The person received an unconditional pardon and qualifies for the automatic process in § 9122(a)(2.1) and (a.1).
• ☐ The person meets the age and sentence-completion conditions for a qualifying § 6308 underage-drinking conviction under § 9122(a)(3).
• ☐ The person was acquitted at trial of all charges based on the same conduct or criminal episode under § 9122(a)(4).
• ☐ The person is at least 70 and has been free of arrest or prosecution for 10 years after final release from confinement or supervision. § 9122(b)(1).
• ☐ The record subject has been dead for 3 years. § 9122(b)(2).
• ☐ The petition concerns only a summary conviction and the person has been free of arrest or prosecution for 5 years after conviction. § 9122(b)(3).
• ☐ The person successfully completed ARD and Rule 320 applies, subject to the child-victim offense limitation in § 9122(b.1).

Complete acquittals use the clerk-driven Rules 490.2 or 790.2 process. ARD expungement ordinarily accompanies dismissal under Rule 320. Other summary and court-case petitions proceed under Rules 490 and 790.

A dismissal, nolle prosequi, withdrawal, or other nonconviction disposition is subject to automatic limited access under § 9122.2(a)(2), but expungement still requires an applicable court order or other authority.

4. Petition-Based Limited Access — § 9122.1

A. Misdemeanor or Ungraded Route — § 9122.1(a)

• ☐ The record concerns a qualifying misdemeanor or an ungraded offense carrying a maximum penalty of no more than 5 years.
• ☐ The person has been free for 7 years from conviction for an offense punishable by 1 or more years in prison.
• ☐ All court-ordered restitution is paid.
• ☐ The fee previously authorized for limited-access administration is paid.
• ☐ No exception in § 9122.1(b) applies.

B. Listed Felony Route — § 9122.1(a.1)

The conviction must not be a first- or second-degree felony and must be one of the following, or an attempt, conspiracy, or solicitation to commit it:

• Criminal mischief under § 3304.
• Criminal trespass under § 3503.
• Chapter 39 theft and related offenses.
• Chapter 41 forgery and fraudulent practices.
• Section 481 of the Human Services Code.
• A “qualifying offense” as defined in § 9102: a Controlled Substance Act § 13 offense, or attempt, conspiracy, or solicitation, unless the imposed minimum was at least 30 months or maximum was at least 60 months.

The person must be free for 10 years from conviction for an offense punishable by 1 or more years, must pay all court-ordered restitution and the authorized fee, and must satisfy § 9122.1(b).

This petition-based felony list is broader than automated § 9122.2(a)(1.1), which addresses the defined “qualifying offense.”

C. Petition Exceptions — § 9122.1(b)

Review the exact current exceptions, including:

• Certain offenses punishable by more than 2 years involving danger to the person, family offenses, firearms or dangerous articles, registrable sexual offenses, and corruption of minors under § 6301(a)(1); misdemeanor terroristic threats is excepted from the danger-to-person bar.
• Murder, a first-degree felony, or an offense punishable by at least 20 years.
• Specified convictions within the prior 15 years, including the listed serious categories, four or more offenses punishable by at least 2 years, and enumerated offenses.
• Two or more offenses punishable by more than 2 years within the prior 10 years.

5. Automated Clean Slate — § 9122.2

The following records are subject to limited access through the AOPC and Pennsylvania State Police process, subject to the statute's validation and exception rules:

• M2, M3, or misdemeanor punishable by no more than 2 years: 7 years free from conviction for an offense punishable by at least 1 year, plus restitution and the authorized fee. § 9122.2(a)(1).
• Defined “qualifying offense”: 10 years free from conviction for an offense punishable by at least 1 year, plus restitution and the authorized fee. § 9122.2(a)(1.1).
• Charges ending in a final disposition other than conviction. § 9122.2(a)(2).
• Summary conviction: 5 years after judgment, plus restitution and the authorized fee. § 9122.2(a)(3).
• Conviction receiving a conditional pardon. § 9122.2(a)(4).

For nonconvictions, § 9122.2(b)(2)(i) directs AOPC to transmit the record within 30 days after disposition and payment of ordered restitution. The 30 days is a transmission deadline, not an across-the-board waiting period for a petition to expunge.

Section 9122.3 supplies Clean Slate exclusions and counting rules, including barred offense categories, conviction-history caps, consolidation treatment, and same-case limits. Apply its text to the precise § 9122.2 category rather than using it as a universal bar to all § 9122.1 petitions.

6. Effects of Expungement or Limited Access

Under § 9122.5:

• Except for criminal-justice requests and statutory exceptions, an individual may not be required or requested to disclose an expunged or limited-access record and may answer as if the offense did not occur.
• Federal-law and federal self-regulatory-organization employment requirements remain exceptions.
• Unless federal law requires otherwise, expunged or limited-access information may not be used for employment, housing, or school matriculation.
• Such a record generally may not be treated as a conviction barring employment under Pennsylvania law or applicable federal law.
• A limited-access record remains available for sentencing and must be self-disclosed when relevant to Pennsylvania constitutional eligibility for public office.

Section 9121(b.1) and (b.2) preserves specified access for child-welfare functions, court-ordered custody or protection matters, employer-liability defense, federally required employment verification, Supreme Court regulatory functions, public-office verification, and Department of Human Services verification.

Section 9122.6 provides employer immunity for claims arising from misconduct related to an expunged or limited-access record and additional immunity for otherwise lawful use of a voluntarily disclosed record.

7. Recommendation

The client is [ELIGIBLE / NOT ELIGIBLE / ADDITIONAL FACTS REQUIRED] for [EXPUNGEMENT / PETITION-BASED LIMITED ACCESS / AUTOMATED CLEAN SLATE] because [________________________________].

Recommended next action: [________________________________]

Part B — Filing Worksheet

1. Select the Procedure

• ☐ Rule 320 — ARD completion.
• ☐ Rule 490 — summary-case expungement petition.
• ☐ Rule 490.2 — complete acquittal in a summary case.
• ☐ Rule 790 — court-case expungement petition.
• ☐ Rule 790.2 — complete acquittal in a court case.
• ☐ Rule 791 — petition for limited access.
• ☐ Automated § 9122.2 review; no petition currently needed.

2. Petition Information

• Petitioner's full name, aliases, address, date of birth, and Social Security number: [________________________________]
• Judge or issuing authority name and address: [________________________________]
• Affiant name and address, if available: [________________________________]
• Court, docket number, and OTN or magisterial-district number: [________________________________]
• Complaint or arrest date and arresting agency: [________________________________]
• Exact charges: [________________________________]
• Disposition: [________________________________]
• Fine and costs paid: [YES / NO / NOT APPLICABLE]
• Restitution paid: [YES / NO / NOT APPLICABLE]
• Authorized limited-access fee paid, if applicable: [YES / NO]
• Grounds and waiting-period calculation: [________________________________]
• Criminal-justice agencies to name in the order: [________________________________]

Rules 490, 790, and 791 prohibit additional information requirements by local rule or practice beyond the information specified in the applicable rule.

3. Pennsylvania State Police Report

• ☐ Current PSP criminal-history report obtained within 60 days before filing.
• ☐ Report attached, or the Commonwealth's written waiver documented.

Rules 490, 790, and 791 prohibit a ruling without the report unless the attorney for the Commonwealth waived it.

4. Verification

I verify that the facts stated in this petition are true and correct to the best of my personal knowledge or information and belief. I understand that false statements are subject to the penalties of 18 Pa.C.S. § 4904.

[________________________________]

[PETITIONER NAME]

Date: [__/__/____]

5. Filing and Response Deadlines

• ☐ File in the judicial district where the charges were disposed.
• ☐ Serve the attorney for the Commonwealth concurrently with filing.
• ☐ Rule 490 summary petition: calendar 30 days after service for response.
• ☐ Rule 790 court-case petition: calendar 60 days after service for response.
• ☐ Rule 791 limited-access petition: calendar 30 days after service for response.
• ☐ Calendar the court's 14-day period after response or expiration to grant, deny, or schedule a hearing.
• ☐ If relief is granted without Commonwealth consent, note the 30-day stay pending appeal under the applicable rule.

For complete acquittals, follow Rules 490.2 or 790.2 instead of filing a standard petition. Both give the Commonwealth 60 days after notice to consent, object, or take no action.

6. Order and Distribution

A proposed order is not mandatory. The AOPC forms page explains that Rule 575(D) prohibits requiring one, although it may be submitted if helpful.

The entered order must contain the identifiers and charge information required by Rule 490(c), 790(c), or 791(c) and list the criminal-justice agencies that receive certified copies. The clerk serves each listed agency and all other entities required by statute.

• ☐ Order uses the correct relief: expungement or limited access.
• ☐ Order lists every required agency.
• ☐ Certified distribution completed by the clerk.
• ☐ Central repository notice completed under § 9122(d), § 9122.1(d), or the applicable Clean Slate procedure.

Sources and References

• 18 Pa.C.S. § 9102 — definitions
• 18 Pa.C.S. § 9121 — dissemination
• 18 Pa.C.S. § 9122 — expungement
• 18 Pa.C.S. § 9122.1 — petition for limited access
• 18 Pa.C.S. § 9122.2 — Clean Slate
• 18 Pa.C.S. § 9122.3 — Clean Slate exceptions
• 18 Pa.C.S. § 9122.5 — effects
• 18 Pa.C.S. § 9122.6 — employer immunity
• Pa.R.Crim.P. 320
• Pa.R.Crim.P. 490 and 490.2
• Pa.R.Crim.P. 790 and 790.2
• Pa.R.Crim.P. 791
• AOPC public forms