City of Philadelphia v. R.T. Armstrong ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
: No. 1204 C.D. 2020
v. :
: Argued: November 15, 2021
Rashad T. Armstrong, :
Appellant :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE McCULLOUGH FILED: February 14, 2022
In this action commenced by the City of Philadelphia (City), Rashad T.
Armstrong (Appellant) appeals from the November 12, 2020 order of the Court of
Common Pleas of Philadelphia County (trial court) denying his motion for a permanent
injunction that sought to enjoin the City from enforcing Philadelphia Code §10-838a
(Section 10-838a),1 which imposes a fine on individuals who fail to report a lost or
1
Titled “Failure to Report Lost or Stolen Firearm,” Section 10-838a provides:
(1) Prohibited Conduct. No person who is the owner of a firearm that
is lost or stolen shall fail to report the loss or theft to an appropriate
local law enforcement official within 24 hours after the loss or theft is
discovered.
(2) Penalties. A violation of this Section shall be deemed a Class II
Offense, subject to the penalties set forth in Section 1-109.
(3) Repeat Offenders. Any person who commits, on more than one
occasion, a violation of this Section, shall be guilty of a separate offense
of Repeat Violation, and for each such Repeat Violation, shall be
(Footnote continued on next page…)
stolen firearm, on the ground that it is preempted by Section 6120(a) of the
Pennsylvania Uniform Firearms Act (UFA), 18 Pa.C.S. §6120(a).2 We reverse and
remand to the trial court with instructions to enter a permanent injunction in favor of
Appellant.
Background
On November 1, 2019, the City filed a complaint alleging that Appellant
violated Section 10-838a in failing to report a firearm missing or stolen within 24 hours
to the Philadelphia Police Department and seeking a fine in the amount of $2,000.00.
The City averred that on December 6, 2017, Appellant purchased a SR9E Model Ruger
with the serial number 338-18643 (the firearm) from New Frontier Outfitters located
at 9280 Ridge Pike, Philadelphia, Pennsylvania. On April 23, 2018, Appellant knew
subject to a fine of not more than one thousand nine hundred dollars
($1,900) for any violation committed in 2008, and not more than two
thousand dollars ($2,000) for any violation committed in 2009 or
thereafter, or imprisonment for not more than ninety (90) days, or both.
A person shall be guilty of a Repeat Violation regardless [of] whether
the second or subsequent violation occurs before or after a judicial
finding of a first or previous violation. Each violation, after the first,
shall constitute a separate Repeat Violation offense.
City of Philadelphia, Pa., the Philadelphia Code §10-838a (2008) (Philadelphia Code). Section 1-109
states that in terms of a Class II offense, the fine “for any violation committed on January 1, 2009[,]
or thereafter, [shall be] two thousand dollars ($2,000) for each violation.” Philadelphia Code §1-109.
2
Act of October 18, 1974, P.L. 768, as amended. Section 6120(a) of the UFA states:
(a) General rule.-- No county, municipality or township may in any
manner regulate the lawful ownership, possession, transfer or
transportation of firearms, ammunition or ammunition components
when carried or transported for purposes not prohibited by the laws of
this Commonwealth.
18 Pa.C.S. §6120(a).
2
that the firearm he owned was either lost or stolen. On May 3, 2018, the Lancaster
Police Department in Lancaster City, Lancaster County, Pennsylvania, found the
firearm, searched the National Crime Information Center’s database on lost or stolen
guns, and received no matches. After the firearm was traced to Appellant, the
Philadelphia Police Department interviewed him on June 26, 2018, and he reported for
the first time that the firearm had been stolen from him on or about April 23, 2018.
(Trial court op. at 1-2.)
In the course of the pleading stage of the litigation, Appellant filed a
motion for a permanent injunction on December 16, 2019, asserting that Section 10-
838a was invalid and unenforceable because it was preempted by Section 6120(a) of
the UFA. Over Appellant’s objection, the trial court, on March 9, 2020, granted a
petition to intervene filed by CeaseFire Pennsylvania Education Fund, Philadelphia
Anti-Drug/Anti-Violence Network, Inc., Mothers in Charge, Inc., and Kimberly
Burrell and Freda Hall (Intervenors). After the City filed an answer to the motion for
a permanent injunction and Intervenors filed a brief in opposition to the motion, the
trial court convened a hearing, via Zoom, on November 12, 2020, and denied
Appellant’s motion that same day. On November 13, 2020, Appellant filed a notice of
appeal to this Court and, on November 20, 2020, the trial court ordered Appellant to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal within 21
days. In turn, Appellant filed his concise statement on November 23, 2020, asserting
that the trial court erred in denying his motion for a permanent injunction, permitting
the witnesses’ testimony and the admission of exhibits at the hearing, and granting
Intervenors’ petition for intervention. On May 20, 2021, the trial court issued its
Pa.R.A.P. 1925(a) opinion. (Trial court op. at 3-4.)
3
In its opinion, the trial court supported the denial of permanent injunctive
relief by focusing, in notable part, on the fact that on January 31, 2019, Appellant
tendered a guilty plea in the Court of Common Pleas of Philadelphia County to 3
firearm offenses, namely 2 violations of the UFA, Sections 6108 and 6111, 18 Pa.C.S.
§§6108 (Carrying firearms on public streets or public property in Philadelphia), 6111
(Illegal sale or transfer of firearms), and one violation of the Crimes Code,3 Section
4906, 18 Pa.C.S. §4906 (False reports to law enforcement authorities), and was
sentenced to 7 ½ to 23 months’ incarceration, followed by 2 years of probation. In the
guilty plea colloquy, which the trial court appended to its opinion, Appellant admitted
that he purchased six firearms, including the firearm at issue here, and five of them
were recovered from other persons during arrests or pursuant to a search warrant. With
respect to the sixth firearm, Appellant falsely reported to the police that it had been
stolen and later conceded that he gave it to an unknown person. During the time of the
purchases, Appellant did not possess a valid license to own or carry a firearm and, in
every instance, he did not report to the police that a firearm had been lost or stolen.
(Trial court op. at Ex. A; Notes of Testimony (N.T.), 1/31/2019, at 8-15.)
The trial court then concluded that it properly denied Appellant permanent
injunctive relief based on the following rationale:
Appellant avers that this court committed an error of law,
abused its discretion, or violated Appellant’s constitutional
rights by denying the [m]otion for [p]ermanent [i]njunction.
On January 31, 2019, Appellant, at his criminal sentencing,
admitted to being the straw purchaser on [6] different
occasions and that he did not have a valid license to carry a
firearm. Appellant’s own attorney stated that, “He’s the
perfect straw purchaser.” Appellant’s guilty plea and
subsequent probation precluded him from owning a firearm
again under state law as well as federal law[.] In order to
3
18 Pa.C.S. §§101-9402.
4
obtain a permanent injunction, the law is clear. Appellant
must show actual and substantial injury is likely in the future.
Instantly, Appellant cannot show that there is a future injury
because he is barred from owning a firearm as a result of his
actions as a straw purchaser and his subsequent guilty plea
thereto.
Appellant is also unable to obtain a permanent injunction as
he approaches this court with unclean hands. Under the
doctrine of unclean hands, a court may deprive a party of
equitable relief where, to the detriment of the other party, the
party applying for such relief is guilty of bad conduct relating
to the matter at issue. . . . Instantly, Appellant arrives with
unclean hands and a history of straw purchasing firearms that
have then been used in shootings and other crimes.
Appellant violated a statute and now seeks to enjoin the
enforcement related thereto even after operating deceitfully
while committing his crimes.
[A] party seeking a permanent injunction must prove that
greater injury will result in refusing rather than granting the
relief requested. This court heard testimony and received
amicus briefs from numerous community entities and groups
stating the danger that firearms pose to our community in
Philadelphia. Dr. Dauer, a Temple University Hospital
trauma surgeon, stated, “We see gunshot wound victims
pretty much on a daily basis, anywhere from [2] to [10] a day,
on average.” Dr. Nance, the director of the Pediatric Trauma
Program at the Children’s Hospital of Philadelphia and an
investigator for the Center for Injury Research and
Prevention, discussed both the Post Traumatic Stress that
accompanies children that suffer from a firearm injury [and]
that [12] to [15%] of firearm injuries in children result in
death. Ms. Harley, the Deputy Managing Director for
Criminal Justice and Public Safety, discussed the gun
violence occurring all throughout the [C]ity and certain
programs that [the City] has taken to curb gun violence.
Appellant does not meet [this] burden.
(Trial court op. at 5-7) (internal citations and some quotation marks omitted).
Otherwise, the trial court determined that Appellant could not appeal from
the March 5, 2020 order granting Intervenors’ petition to intervene. In so doing, the
5
trial court noted that a party has 30 days from which to file a notice of appeal from an
order, and Appellant did not file a notice of appeal until November 13, 2020,
approximately “219 days after the deadline to file an appeal.” Id. at 8. Accordingly,
the trial court concluded that an appeal from the order granting intervention would be
untimely and, thus, unreviewable on appeal in this Court.
Discussion
Before this Court, Appellant contends that the trial court erred in (1)
denying his request for a permanent injunction, (2) granting Intervenors’ petition for
intervention, and (3) allowing witnesses to testify, and documentary evidence to be
admitted, during the hearing on the permanent injunction.
Permanent Injunction
Appellant argues that he is entitled to a permanent injunction because his
right to relief is clear, in that Section 10-838a is preempted by Section 6120(a) of the
UFA; an injunction is necessary to avoid an injury that cannot be compensated by
damages; and greater injury will result if the request for the injunction was denied as
compared to if it was granted. In addition, Appellant asserts that the trial court erred
in applying the standard for a preliminary injunction, requiring him to show irreparable
harm and the need for immediate relief, because these elements are not applicable to—
and need not be proven to obtain—a permanent injunction.
In response, the City contends that Appellant does not possess a clear right
to relief because his actions as a “straw purchaser,” which the City states is the
underlying conduct proscribed in Section 10-838a, are illegal under Section 6111(g) of
the UFA and, therefore, fall outside the scope of Section 6120(a)’s preemptive reach.
6
Citing Minich v. County of Jefferson, 869 A.2d 1141 (Pa. Cmwlth. 2005) (en banc),
the City contends that Section 6120(a) only preempts those municipal laws that
regulate the lawful ownership, possession, transfer, or transportation of firearms, but
does not preempt municipal laws that regulate the unlawful ownership, possession,
transfer, or transportation of firearms. The City also argues that Section 6120(a) does
not preempt an ordinance that does not directly concern the ownership, possession,
transfer, or transportation of firearms.
Additionally, the City maintains that greater injury would result if a
permanent injunction was issued because Appellant failed to adduce evidence of
individual harm, while the City submitted evidence demonstrating grave injury to the
public health and safety of the citizens of the City. In a cursory fashion, the City asserts
that the trial court applied the correct standard for a permanent injunction and that
Appellant’s suggestion that the trial court “applied the wrong standard is purely
speculative.” (City’s Br. at 49.)
“To justify the award of a permanent injunction, the party seeking relief
must establish [1] that his right to relief is clear, [2] that an injunction is necessary to
avoid an injury that cannot be compensated by damages, and [3] that greater injury will
result from refusing rather than granting the relief requested.” Kuznik v. Westmoreland
County Board of Commissioners, 902 A.2d 476, 489 (Pa. 2006). “However, unlike a
claim for a preliminary injunction, the party need not establish either irreparable harm
or immediate relief and a court may issue a final injunction if such relief is necessary
to prevent a legal wrong for which there is no adequate redress at law.” Buffalo
Township v. Jones, 813 A.2d 659, 663-64 (Pa. 2003) (internal citations and quotation
marks omitted). “Additionally, when reviewing the grant or denial of a final or
permanent injunction, an appellate court’s review is limited to determining whether the
7
trial court committed an error of law,” id., and, as such, “our standard of review is de
novo, and our scope of review is plenary.” Kuznik, 902 A.2d at 489.
In determining whether Appellant possesses a clear right to relief (the first
prong), we review the case law interpreting and applying Section 6120(a) of the UFA.
In Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996), our Supreme Court issued a
seminal case that has served as a beacon, providing the guiding light that would solidify
the bedrock foundation for the current state of this Court’s precedent. In that case, the
cities of Philadelphia and Pittsburgh, which are both home rule municipalities, passed
ordinances that banned “certain types of assault weapons in Philadelphia County” and
“certain specified assault weapons within Pittsburgh’s physical boundaries.” Id. at 154.
To justify the lawfulness of the ordinances and their authority to pass them, the cities
argued, inter alia, that “the right of a city to maintain the peace on its streets through
the regulation of weapons [was] intrinsic to the existence of the government of that city
and, accordingly, an irreducible ingredient of constitutionally protected [h]ome [r]ule.”
Id. at 156. The cities further contended that “home rule municipalities may be restricted
in their powers only when the General Assembly has enacted statutes on matters of
statewide concern” and asserted that Section 6120(a) of the UFA fell short of
accomplishing this objective. Id.On appeal, the Supreme Court rejected the cities’ arguments. Citing article
IX, section 2 of the Constitution of Pennsylvania, PA. CONST. art. IX §2 (“A
municipality which has a home rule charter may exercise any power or perform any
function not denied by this Constitution, by its home rule charter or by the General
Assembly at any time”), and article I, section 21 of the Pennsylvania Constitution, PA.
CONST. art. I §21 (“The right of the citizens to bear arms in defense of themselves and
8
the State shall not be questioned”), the Court concluded that Section 6120(a) of the
UFA trumped the cities’ ordinances. In so holding, the Supreme Court explained:
[T]he General Assembly has denied all municipalities the
power to regulate the ownership, possession, [and] transfer
of firearms . . . . Thus, regulation of firearms is a matter of
concern in all of Pennsylvania, not merely in Philadelphia
and Pittsburgh, and the General Assembly, not city councils,
is the proper forum for the imposition of such regulation.
Ortiz, 681 A.2d at 154-56 (emphasis added).
Following and relying on Ortiz, this Court, on a variety of occasions, has
struck down legislation passed at the local level on the ground that the legislation was
preempted by Section 6120(a) of the UFA. Ultimately, when distilled to its essence,
the underlying conclusion to be extracted from these cases is that the regulation of
firearms is an area where legislative activity is vested singularly and absolutely in the
General Assembly of the Commonwealth. For instance, in Clarke v. House of
Representatives, 957 A.2d 361 (Pa. Cmwlth. 2008), this Court reviewed a number of
ordinances that related to, or encroached into, the sphere of firearm regulation. We
held: “Each [ordinance] seeks to regulate firearms—an area that both Section 6120
and binding precedent have made clear is an area of statewide concern over which the
General Assembly has assumed sole regulatory power.” Id. at 364 (emphasis added).
See, e.g., Firearm Owners Against Crime v. Lower Merion Township, 151 A.3d 1172,
1179 (Pa. Cmwlth. 2016) (recognizing that “the UFA explicitly prohibits a township
from regulating ‘in any manner’ and contains no express exemptions authorizing a
township to enact ordinances permitting firearm regulation on its property”); Dillon v.
City of Erie, 83 A.3d 467, 473 (Pa. Cmwlth. 2014) (en banc) (concluding that Section
6120(a) “precludes the [c]ity from regulating the lawful possession of firearms” and
“preempts all firearms regulation thereby prohibiting the [c]ity from regulating the
9
possession of firearms in its parks”); National Rifle Association v. City of Philadelphia,
977 A.2d 78, 82 (Pa. Cmwlth. 2009) (en banc)4 (rejecting the city’s argument that the
preemptive force of Section 6120(a) is “limited to the lawful use of firearms” because
“the crystal clear holding of our Supreme Court in Ortiz . . . precludes our acceptance
of the [] argument”) (emphasis in original); Schneck v. City of Philadelphia, 383 A.2d
227, 229-30 (Pa. Cmwlth. 1978) (“We believe that this statute clearly preempts local
governments from regulating the lawful ownership, possession and transportation of
firearms.”). Significantly, in passing, our Supreme Court recently addressed its holding
in Ortiz, apparently for the first time since the High Court issued that decision,
reaffirming and reiterating that Section 6120 of the UFA verifies “the General
Assembly’s reservation of the exclusive prerogative to regulate firearms in this
Commonwealth.” Commonwealth v. Hicks, 208 A.3d 916, 926 n.6 (Pa. 2019), citing
Ortiz (emphasis added).
Factually and legally, our decision in Clarke is controlling authority in
this matter.
In Clarke, the Philadelphia City Council passed seven ordinances in 2007
that (1) mandated the reporting of lost or stolen firearms, (2) limited handgun
purchases to one per month and prohibited straw purchases and sales, (3) required a
license in order to acquire a firearm within Philadelphia or bring a firearm into
Philadelphia, (4) required the annual renewal of a gun license, (5) stated that a firearm
can be confiscated from someone posing a risk of harm, (6) prohibited the possession
or transfer of assault weapons, and (7) required that any person selling ammunition
report the purchase and the purchaser to the police department.
4
City of Philadelphia was overruled on other grounds by Firearm Owners Against Crime v.
City of Harrisburg, 218 A.3d 497, 511-13 (Pa. Cmwlth. 2019) (en banc) (FOAC), affirmed, 261 A.3d
467 (Pa. 2021).
10
In seeking a declaration that the ordinances were not preempted by
Section 6120 of the UFA, the City initially argued that Section 6120 was
unconstitutional because it infringed on the power of the City to pass and enforce local
gun regulations. In dismissing this argument, we stated:
The [o]rdinances before us are not materially different from
those presented in Schneck and Ortiz. Each one seeks to
regulate firearms—an area that both Section 6120 and
binding precedent have made clear is an area of statewide
concern over which the General Assembly has assumed sole
regulatory power. As we stated in Schneck, “it is a well-
established principle of law that where a state statute
preempts local governments from imposing regulations on a
subject, any ordinances to the contrary are unenforceable.”
383 A.2d at 229.
Clarke, 957 A.2d at 364.
The City also argued “that Section 6120 does not apply to any of the
[o]rdinances to the extent they do not regulate the carrying or transporting of
firearms.” Id. at 363 (emphasis in original). More specifically, the City contended
“that Section 6120’s qualifying phrase ‘when carried or transported’ leaves room for
municipalities to regulate any uses of firearms which do not involve carrying or
transporting them” and postulated that, “if the General Assembly intended to preempt
any and all municipal gun control, it would have done so instead of including this
limitation.” Id. at 363-64. Finding no merit in this line of reasoning, this Court in
Clarke explained:
Given Schneck and Ortiz, we cannot agree with this
construction of the [UFA]. The ordinances struck down in
those cases were not qualitatively different in that respect
from those at issue here. While [the City of Philadelphia]
point[s] out that the qualifying phrase “when carried or
transported” was not specifically discussed in Ortiz, in light
of its broad and unqualified language, we cannot distinguish
11
Ortiz on this basis. Moreover, this language was at issue in
Schneck, 383 A.2d at 230 (Crumlish, Jr., J., dissenting).
There, the dissenting opinion quoted the [the court of
common pleas’] discussion:
In an even broader inquiry, is the declared
“limitation” on the power of a municipality to
regulate “lawful ownership, possession or
transportation of firearms” confined, as [the
municipalities] assert, to certain statutorily
enumerated events only, i.e., “when carried or
transported for purposes not prohibited by the
laws of this Commonwealth.” Or, as asserted
by [the plaintiffs], has the total field of the
regulation of firearms been preempted by the
Commonwealth so that this clause, which
invites a more limited intention, is to be
modified by interpretation?
Id. [However,] [t]he majority [in Schneck] concluded that
Section 6120 “clearly preempts local governments from
regulating the lawful ownership, possession and
transportation of firearms.” Id. at 229-30. Thus, we must
conclude that binding precedent precludes our accepting [the
City’s] argument on this point.
Clarke, 957 A.2d at 364. Accordingly, and for these reasons, this Court held that all
seven of the ordinances mentioned above were preempted by Section 6120 of the UFA,
including the City’s ordinance mandating that a lost or stolen firearm be reported to the
Philadelphia Police Department.
Ultimately, the lost and stolen ordinance that the City enacted and was at
issue in Clarke is nearly, if not completely, identical to current Section 10-838a.
Compare Philadelphia Code §10-838(1), added by Bill No. 060700 (approved May 9,
2007) (“No person who is the owner of a firearm that is lost or stolen shall fail to report
the loss or theft to an appropriate local law enforcement official within 24 hours after
the loss or theft is discovered”), with Section 10-838a, added by Bill No. 080032-
12
A (approved April 10, 2008) (“No person who is the owner of a firearm that is lost or
stolen shall fail to report the loss or theft to an appropriate local law enforcement
official within 24 hours after the loss or theft is discovered.”).5 At the very least, the
two are materially indistinguishable. Hence, as this Court held that the City’s lost and
stolen ordinance was preempted by Section 6120(a) in Clarke, we must reach the same
result here and conclude that Section 10-838a is also preempted.
The City’s reliance on Minich to save Section 10-838a from the
preemptive reach of Section 6120(a) is unavailing. In Minich, this Court upheld a
county’s ordinance banning the possession of firearms in a county courthouse from a
preemption challenge under Section 6120(a) because the “ordinance [did] not regulate
the lawful possession of firearms.” Id. at 1144 (emphasis in original). Rather, the
ordinance “pertain[ed] only to the unlawful possession of firearms, i.e., possession
‘prohibited by the laws of this Commonwealth,’” id. at 1143 (quoting 18 Pa.C.S.
§6120(a), namely Section 913(a)(1) of the Crimes Code, which makes it is unlawful
for a person to “knowingly possesses a firearm . . . in a court facility.” 18 Pa.C.S.
§913(a)(1). However, in Lower Merion Township, this Court differentiated Minich,
because the ordinance at issue in that case, “[u]nlike the ordinance in Minich, [did] not
solely regulate the possession of firearms that the General Assembly has already
decided to be unlawful” and, “[u]nlike Minich, the [t]ownship [did] not point to any
corresponding provision in the Crimes Code that contains such a blanket ban of firearm
possession.” Lower Merion Township, 151 A.3d at 1177.
Here, as in Lower Merion Township, the City does not cite any
corresponding provision in the Crimes Code or the UFA that mandates the reporting of
5
The City’s Code is available at:
https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-199997
(last visited February 10, 2020).
13
a lost or stolen firearm to police officials. Although the City attempts to recharacterize
Section 10-838a as a law banning “straw purchasing,” and Section 6111 of the UFA
generally prohibits individuals from engaging in the unlawful transfer or sale of a
firearm,6 Section 10-838a, by its terms, has nothing to do with—and does not involve—
the acts of selling, delivering, or transferring a firearm to another individual. Rather,
Section 10-838a imposes a reporting requirement on individuals who own and possess
a firearm in the event a firearm is either lost or stolen and inflicts civil penalties on
individuals for failing to fulfill that requirement.7 As such, we conclude that Section
10-838a does not prohibit conduct that the Crimes Code or the UFA outlaws in a
mirror-like fashion and, consequently, our decision in Minich is inapplicable.8
6
See, e.g., 18 Pa.C.S. §§6111(g)(1) (imposing criminal sanctions on “[a]ny person, licensed
dealer, licensed manufacturer or licensed importer who knowingly or intentionally sells, delivers or
transfers a firearm in violation of this section”).
7
Indeed, the City has a section in its Code that specifically pertains to “straw purchasers,”
defining the term to mean “[a]ny person who conducts or attempts to conduct a gun purchase on
behalf of another person.” Philadelphia Code §10-831a. This section of the Code imposes application
and reporting requirements prior to the sale or transfer of a firearm, states that “[n]o one shall act as
a straw purchaser in any handgun transaction in order to evade the provisions of this [s]ection,”
proscribes that “[n]o prospective firearm purchaser or other transferee shall be allowed to purchase
or receive more than one handgun in any 30-day period,” and inflicts fines for a violation.
Philadelphia Code §10-831a.
8
In any event, we note that even if Section 10-838a could be deemed to be a “straw purchaser”
ordinance, in City of Philadelphia, the City enacted, inter alia, two ordinances in 2008, and one of
those was a “Straw Purchaser Ordinance,” which prohibited any person when purchasing a handgun
from acting as a straw purchaser and rendered it unlawful for a person to purchase more than one
handgun within any 30-day period, except for a person who is not a straw purchaser. On appeal to
this Court, the City asserted that Section 6120(a) of the UFA, by its own language, only prohibited
municipalities from regulating “the lawful ownership, possession, transfer or transportation of
firearms, ammunition or ammunition components,” 18 Pa.C.S. §6120(a) (emphasis added), and
contended that, in enacting the “Straw Purchaser Ordinance,” it was simply regulating activity that
was already deemed to be unlawful by our General Assembly in the Crimes Code.
(Footnote continued on next page…)
14
Therefore, we conclude that Appellant’s right to relief is well established
because a straightforward application of our case law interpreting Section 6120(a) leads
to the inescapable conclusion that Section 10-838a is preempted and therefore invalid
and unenforceable.
Turning to the balance of harms inquiry (the third prong), our decision in
Dillon adequately explained why the balance of harms will always favor the individual
However, relying on our previous decision in Clarke and that case’s discussion of Schneck
and Ortiz, an en banc panel of this Court analogized the cases and concluded:
Similarly here, the fact that the Court in Ortiz did not discuss the
statutory language relied upon by the City does not provide a legitimate
basis for us to ignore its holding. Unfortunately, with respect to the
matter before us, while we may agree with the City that preemption of
[Section 6120] appears to be limited to the lawful use of firearms by its
very terms, we believe, however, that the crystal clear holding of our
Supreme Court in Ortiz that, “the General Assembly has [through
enactment of Section 6120(a)] denied all municipalities the power to
regulate the ownership, possession, transfer or [transportation] of
firearms,” [681 A.2d at 155], precludes our acceptance of the []
argument . . . .
City of Philadelphia, 977 A.2d at 82-83 (emphasis in original; brackets added). As such, the City of
Philadelphia Court held that Section 6120(a) of the UFA preempted the “Assault Weapons
Ordinance” and the “Straw Purchaser Ordinance,” irrespective of the fact that those ordinances
purported to outlaw and punish that which had already been declared unlawful by our General
Assembly. See Lower Merion Township, 151 A.3d at 1177 (concluding that “the [t]ownship’s
argument that the UFA does not preempt a municipality’s regulation of unlawful firearm possession
was expressly rejected by this Court in [City of Philadelphia]” and determining that, in the City of
Philadelphia decision, “the critical upshot [was] our recognition that Ortiz’s ‘crystal clear holding’
prohibits this Court from endorsing the argument that a cognizable distinction exists between
regulating lawful activity and unlawful activity”).
Although our decisions in City of Philadelphia and Lower Merion Township did not expressly
overrule Minich, we recognize that a degree of tension exists between our en banc decisions in Minich
and City of Philadelphia. Nonetheless, at least for present purposes, we need not definitely resolve
that tension because the City has not cited any clear pronouncement from our General Assembly
imposing a requirement on purchasers of firearms to report a lost or stolen firearm to police officials.
15
in the situation where a municipal entity seeks to enforce an ordinance and/or law that
is preempted by Section 6120(a) of the UFA:
The argument that a violation of law can be a benefit to the
public is without merit. When the Legislature declares
certain conduct to be unlawful it is tantamount in law to
calling it injurious to the public. . . .
[T]he [c]ity’s unlawful regulation of the lawful possession of
firearms shows that a greater injury will occur by refusing to
grant the injunction because . . . the [c]ity’s [o]rdinance is
unenforceable; the injunction is reasonably suited to abate
the offending activity by enjoining the enforcement of this
unlawful and unenforceable ordinance; and the injunction
will not adversely affect the public interest because the [c]ity
was prohibited from enacting [the ordinance] and the
ordinance is, again, unlawful and unenforceable.
Dillon, 83 A.3d at 474.
Moreover, in Lower Merion Township, this Court followed and relied
upon Dillon in concluding that, per se, the balance of harms will always weigh in favor
of the individual when the individual seeks to enjoin a municipal ordinance and/or law
that is preempted by Section 6120(a):
The [t]ownship next argues that it would suffer substantial
harm if the [o]rdinance was enjoined because it is essential
to the safety of [t]ownship residents and to the public’s use
and enjoyment of [t]ownship parks. However, contrary to
the [t]ownship’s assertion, we have stated that “[w]hen the
Legislature declares certain conduct to be unlawful it is
tantamount in law to calling it injurious to the public.”
Dillon, 83 A.3d at 474.
Thus, we conclude that greater injury would result from
refusing an injunction than granting it because refusing an
injunction would sanction the [t]ownship’s continued
statutory violations of the UFA and, therefore, be injurious
to [plaintiffs/petitioners] and the public.
16
151 A.3d at 1181.
Based on Dillon and Lower Merion Township, we conclude, contrary to
the trial court, that the balance of harms weighs in favor of Appellant and the granting
of a permanent injunction.
Regarding the last element (i.e., the second prong) in the test for a
permanent injunction—that an injunction is necessary to avoid an injury that cannot be
compensated by damages, or, in other words, the inadequacy of a remedy at law
requirement—the City intermingles legal concepts that are either related to this
requisite or serve as a bar to a permanent injunction even if all three requisites have
been fulfilled. In these respects, the City focuses on Appellant’s guilty plea, asserting
that “his admitted firearms violations preclude him from owning or possessing those
weapons, and thereby eliminate any likelihood of injury” and, further, “constitute
unclean hands foreclosing [the] entry of equitable relief in his favor.” (City’s Br. at
18.)
More specifically, the City contends that, in order to obtain a permanent
injunction, Appellant must show that “actual and substantial injury is likely in the
future,” and “Appellant asserts no injury whatsoever that is reasonably certain of
occurring,” because “his conviction for carrying a firearm on the City’s streets bars
[him] from possessing a handgun”—in other words, Appellant will have no lawfully-
possessed firearm to report lost or stolen under Section 10-838a. Id. at 19 (internal
citation omitted). Somewhat relatedly, the City contends that “an injunction issues to
address future, not past, conduct,” and Appellant cannot claim “that the current
complaint for his prior violation of [Section 10-838a] constitutes sufficient ‘injury’ to
support an injunction, based solely on [his] contention that [Section 10-838a] is
unlawful.” Id. at 20 (emphasis in original). According to the City, Appellant has an
17
adequate remedy at law because “preemption provides him with a defense to the City’s
complaint” and, thus, the “adequacy of Appellant’s statutory remedy to seek dismissal
of the complaint means that the courts are without power to . . . impose injunctive
relief.” Id. at 21 (internal citation omitted).
With respect to the unclean hands doctrine, the City posits:
The unclean hands doctrine applies precisely in situations
where, like here, a litigant violates a statute or municipal
ordinance and then seeks to enjoin enforcement of that
ordinance [he/she] violated.
....
Even apart from [Appellant’s] violation of [Section 10-
838a], he violated the Commonwealth’s firearms and public
safety laws, then lied about those violations to the police,
with respect to the very guns at issue in this case—
quintessential “willful misconduct.” And while he now
attempts to paint a picture of himself as a mere “victim,” he
in fact callously flouted state and federal law, placing guns
in the hands of dangerous criminals.
Id. at 22-24 (internal citations omitted).
On the other hand, Appellant in his principal brief, and later in his reply
brief, emphasizes that Section 10-838a is obviously preempted by Section 6120(a), and
the City was aware of this fact at least since 2008 when this Court issued Clarke. In
addition, Appellant notes that the City “is currently prosecuting [him],” “seeks to fine
him $2,000.00, he could be subjected to 90 days in jail, and there is no ability for him
to obtain damages for this frivolous prosecution.” (Appellant’s Br. at 33.) Appellant
further argues that it is possible that he may sustain future injury, because “there is no
guarantee that he will remain prohibited [from owning a firearm], as there are numerous
ways to obtain relief from a firearms disability, e.g., expungement, pardon, civil rights
restoration, or relief under [Section 6105(d) of the UFA], 18 Pa.C.S. §6105(d),”
18
including the reinstatement of firearm rights and privileges after the lapse of a 10-year
period and upon the occurrence of certain conditions. (Appellant’s Br. at 33.)
Seemingly, Appellant also suggests that, given the focus on his prior behavior and
admissions in the guilty plea colloquy by the City in this matter, it is quite possible that
the City will pursue additional counts, claiming more violations of Section 10-838a,
and will institute future actions if a permanent injunction is not granted. On the issue
of unclean hands, Appellant submits:
[T]he [City] contends in its [c]omplaint that [Appellant]
violated its lost and stolen [firearm] ordinance and
[Appellant] has never been prosecuted, prior to [the City’s]
initiation of the underlying matter, for failure to report a lost
or stolen firearm[.] [I]t is curious how someone can have
unclean hands for such activity, unless, either, in violation of
due process, [Appellant] can be determined to have violated
[Section 10-838a] before trial or he is being denied his
constitutional right to a fair, impartial arbiter and trial.
Moreover, as [the City] contend[s] that [Appellant] gave the
guns to other individuals, not that he lost them or that they
were stolen from him, even [it] admit[s] that [Appellant] does
not have unclean hands as it relates to the failure to report the
loss or theft of firearms. Furthermore, as [the City’s]
[c]omplaint does not seek enforcement of [its] straw
purchaser ordinances, [Philadelphia Code §§]10-831 or 10
831a—nor could it, since they were enjoined by this Court in
[City of Philadelphia, see supra notes 7-8]—it is also
improper for the trial court to have considered non-related
conduct as a basis for the unclean hands doctrine.
(Appellant’s Reply Br. at 15-16 n.5) (emphasis in original).
In general, to obtain a permanent injunction, a party must demonstrate that
actual and substantial injury is likely in the future, see Peugeot Motors of America, Inc.
v. Stout, 456 A.2d 1002, 1008 (Pa. Super. 1983), because “equity ordinarily will not
enjoin an alleged harmful act where it is not reasonably certain of occurring.” Curll v.
Dairymen’s Cooperative Sales Association, 132 A.2d 271, 274-75 (Pa. 1957); accord
19
Troiani Brothers, Inc. v. Pennsylvania Public Utility Commission, 412 A.2d 562, 566
(Pa. 1980). Further, “[i]t has been repeatedly stated by both the Supreme Court and
this Court that equity has jurisdiction only in the absence of a full, complete, and
adequate remedy at law.” St. Joe Minerals Corp. v. Goddard, 324 A.2d 800, 802 (Pa.
Cmwlth. 1974). Otherwise, it is well settled that a party “who comes into a court of
equity must come with clean hands.” Lee v. Lee, 978 A.2d 380, 387 (Pa. Super. 2009)
(internal citation omitted). Importantly, though, “[a]pplication of the unclean hands
doctrine is confined to willful misconduct which concerns the particular matter in
litigation. It does not apply to collateral matters not directly affecting the equitable
relations which exist between the parties.” Shapiro v. Shapiro, 204 A.2d 266, 268 (Pa.
1964). Stated somewhat differently: “When a court of equity is appealed to for relief
it will not go outside of the subject matter of the controversy and make its inference to
depend upon the character and conduct of the moving party in no way affecting the
equitable right which he asserts against the defendant[] or the relief which he
demands.” Hartman v. Cohn, 38 A.2d 22, 25 (Pa. 1944).
As a basic proposition, an injunction may issue to enjoin a prosecution
when the statute is flagrantly and patently unconstitutional, there has been bad faith or
harassment in the enforcement of the statute, and it is possible that the governmental
entity will continue with multiple prosecutions for the same offense. See City of
Farmington v. Stansbury, 823 P.2d 342, 346 (N.M. Ct. App. 1991); Babin v. City of
Lancaster, 493 A.2d 141, 145 (Pa. Cmwlth. 1985); Plaquemines Parish Commission
Council v. Perez, 379 So.2d 1373, 1384-85 (La. 1980); Pitchess v. Superior Court of
Los Angeles County, 2 Cal. App. 3d 644, 648 (Cal. Ct. App., 2d Dist., 1969); see also
Marcus v. Diulus, 363 A.2d 1205, 1208 (Pa. Super. 1976); Kugler v. Helfant, 421 U.S.
117, 124 (1975).
20
Here, the facts, procedural history, and legal background of this case
establish that the City is attempting to enforce a law that it knew, or reasonably should
have known, was unenforceable due to our 2008 decision in Clarke, as well as the
preceding and succeeding case law from this Court. Nonetheless, the City pursued this
prosecutorial action against Appellant, without making any kind of notable linguistic
change to the law it seeks to enforce and was struck down as preempted in Clarke.
Also, the City does not make any meaningful argument for a change in the current state
of the case law, opting instead to essentially ignore the precedential authority of this
Court as if it does not exist. Ultimately, the City’s decision to proceed with prosecution
under Section 10-838a, a lost and stolen reporting law, and then incredibly claim that
the law is actually a “straw purchaser” law, which, in any event, has also been held to
be preempted by this Court, see supra notes 7-8, evidences a form of bad faith and
harassment on the part of the City.
Moreover, Appellant’s argument that he cannot be deemed to have
unclean hands on the basis that he allegedly violated Section 10-838a is well taken, and
we credit it as such. If an individual can be barred from seeking equitable relief simply
because it is averred (but not proven as a matter of law) that the individual violated a
law, then the purported violator could never obtain injunctive relief. On another note,
Appellant’s prior conduct, as reflected by his admissions during the guilty plea
colloquy, cannot serve as a ground upon which to determine that he possesses unclean
hands because it would penalize him for conduct for which he was not charged and,
more importantly, would be unrelated to the specific violation that the City asserts in
its complaint. In this vein, considering the amount of attention and legal briefing that
has been placed on Appellant’s guilty plea and the conduct described therein, it is very
well within the realm of theoretical possibility that the City could/would seek to
21
prosecute Appellant for five other violations of Section 10-838a, potentially under the
enhanced penalty regime that is set forth in the law for repeat offenders. See supra
note 1.
Therefore, for all these reasons, we conclude that Appellant is entitled to
a permanent injunction and that the trial court erred in determining to the contrary.
Intervention and Admission of Evidence
Due to our disposition, we need not address Appellant’s remaining issues
relating to the propriety of the trial court’s order granting Intervenors’ petition for
intervention and allowing testimonial and documentary evidence at the hearing on the
permanent injunction.
Conclusion
For the above-stated reasons, we reverse the trial court’s order and remand
with instructions that the trial court enter a permanent injunction in favor of Appellant.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Wallace did not participate in this decision.
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
: No. 1204 C.D. 2020
v. :
:
Rashad T. Armstrong, :
Appellant :
ORDER
AND NOW, this 14th day of February, 2022, the November 12, 2020
order of the Court of Common Pleas of Philadelphia County (trial court) is hereby
REVERSED and the case is remanded to the trial court with direction to enter an
order granting a permanent injunction in favor of Rashad T. Armstrong in
accordance with the accompanying opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
:
v. : No. 1204 C.D. 2020
: ARGUED: November 15, 2021
Rashad T. Armstrong, :
Appellant :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
CONCURRING OPINION BY
SENIOR JUDGE LEADBETTER FILED: February 14, 2022
If we were not bound by controlling precedent, aptly set out by the Majority,
I would affirm the trial court. It seems to me that the overwhelming blight of gun
violence occurring in the City of Philadelphia, of which I believe we can take judicial
notice, and the policy issues argued by the City in the case before us, call for a
recognition that local conditions may well justify more severe restrictions than are
necessary statewide. It is neither just to impose unnecessarily harsh limits in
communities where they are not required nor consistent with simple humanity to
deny basic safety regulations to citizens who desperately need them. When a child
cannot leave his home to walk to the corner of his street without risking the prospect
of being caught in a crossfire, we are denying him the most fundamental right, that
of life and liberty, and so I would urge our Supreme Court to reconsider the breadth
of the Ortiz doctrine1 and allow for local restrictions narrowly tailored to local
necessities.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
1
Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996).