PSP v. R. Brandon ( 2015 )


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  •            IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Pennsylvania State Police,                       :
    Petitioner              :
    :   No. 841 C.D. 2015
    v.                               :   Submitted: October 2, 2015
    :
    Richard Brandon,                                 :
    Respondent        :
    BEFORE:         HONORABLE BERNARD L. McGINLEY, Judge
    HONORABLE ROBERT SIMPSON, Judge
    HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE SIMPSON                                 FILED: November 24, 2015
    In this appeal, the Pennsylvania State Police (PSP) asks whether an
    Administrative Law Judge (ALJ) in the Office of Attorney General (OAG) erred in
    ordering the PSP to remove from the Pennsylvania Instant Check System (PICS)
    database, as it pertains to Richard Brandon (Brandon),1 the disability imposed by
    Section 6105(c)(4) of the Uniform Firearms Act (UFA), 18 Pa. C.S. §6105(c)(4)
    (generally stating that an individual who has been involuntarily committed to a
    mental institution for inpatient care and treatment under Sections 302, 303 or 304
    of the Mental Health Procedures Act2 (MHPA), may not possess a firearm).
    1
    No party sought to amend the caption to use only Brandon’s initials. Indeed, in his
    multiple filings in this case, Brandon refers to himself by name.
    2
    Act of July 9, 1976, P.L. 817, as amended, 50 P.S. §§7302, 7303, 7304.
    In particular, the PSP asserts it met its burden of proving Brandon was
    properly denied a license to carry concealed firearms by presenting records from a
    county mental health department and other supporting documentation, which
    indicates Brandon was twice involuntarily committed under Section 302 of the
    MHPA. Because we are unable to conduct effective appellate review, we vacate
    the ALJ’s order and remand to the OAG for further consideration.
    In September 2013, Brandon applied for a license to carry a firearm
    with the Butler County Sheriff’s Office, prompting a search of the PICS database.
    Brandon’s application was denied after a search of the PICS database revealed two
    purported involuntary commitments. After the PSP denied his challenge to the
    PICS information based on mental health commitments in 1987 and 1994, Brandon
    appealed to the OAG. A hearing ensued before the ALJ.
    The ALJ’s decision contains no factual findings. As such, we set
    forth the following summary of the evidence presented at the hearing. The PSP
    presented the testimony of Marlin W. Rose (Rose), the Mental Health Emergency
    Coordinator for Butler County (County), who attends all mental health
    commitment hearings and coordinates those proceedings for the County. Rose
    explained his office is instrumental in obtaining the warrants necessary for
    proceedings under Section 302 of the MHPA. Rose identified two County Incident
    Report Emergency Services (IRES) forms for Brandon. The IRES form is a
    document regularly generated by Rose’s office. The IRES forms are regularly
    submitted by the County’s mental health delegates to Rose’s office.
    2
    As to the two IRES forms pertaining to Brandon, Rose testified that
    one form pertained to an incident in June 1994, which revealed Brandon was
    involuntarily committed under Section 302 of the MHPA. The 1994 IRES form
    indicated that PSP Trooper Daniel Herr petitioned for the Section 302 involuntary
    commitment, signifying he considered Brandon a clear and present danger to
    himself and others. Rose confirmed that his office would not complete an IRES
    form indicating a Section 302 disposition unless a physician certified that the
    individual was severely mentally disabled.
    In addition, Rose explained, his office had a second IRES form
    pertaining to Brandon, which was generated in 1987.        The 1987 IRES form
    indicated that Brandon was subject to a Section 302 involuntary commitment and
    transferred to a medical facility for treatment. Rose again confirmed that the
    disposition on the 1987 IRES form would not indicate a Section 302 involuntary
    commitment unless a physician certified Brandon was severely mentally disabled
    and recommended inpatient care.
    On cross-examination, Rose explained the IRES form is completed
    after an entire incident transpired. Rose acknowledged the County’s mental health
    department did not have any other documents, including the underlying Section
    302 petition, pertaining to Brandon. Rose explained that during the timeframe at
    issue, his office would not receive a copy of the actual Section 302 petition;
    however, the process subsequently changed.   Rose indicated he had no knowledge
    of any entity having a Section 302 petition for Brandon. On re-direct examination,
    3
    Rose testified his office has an obligation to notify PSP whenever an individual is
    involuntarily committed.
    In response to a question from the ALJ, Rose further testified it was a
    “possibility” that a Section 302 petition for Brandon could be found at either one
    of the two facilities that treated him for the 1987 and 1994 incidents. Reproduced
    Record (R.R.) at 44a. The ALJ then admitted into evidence the two IRES forms
    pertaining to Brandon.
    The PSP also presented the testimony of Christopher Clark (Clark),
    who is employed by the PSP in the PICS Challenge Section.               PSP’s PICS
    Challenge Section handles all the appeals from denials of firearm purchases or
    licenses to carry firearms. Clark explained Brandon was initially denied a license
    to carry a firearm based on two mental health commitments. Clark confirmed the
    PSP received notice of both of Brandon’s involuntary commitments, which were
    reflected in the PSP’s mental health database.
    The PSP also presented a police report indicating that Brandon was
    transported to Butler Memorial Hospital for treatment and placed in the psychiatric
    wing after treatment. Brandon’s counsel objected on the basis of hearsay because
    the police officer was not available to testify. However, the ALJ accepted the
    document and noted the objection. PSP’s counsel reiterated that he only sought to
    admit the brief portion of the police report that stated Brandon was transported to
    the hospital for treatment and placed in the psychiatric wing after treatment.
    4
    On cross-examination, Clark explained the notices pertaining to
    Brandon’s involuntary commitments did not indicate the dates the PSP received
    them because, for historical data prior to 1998, the PSP only received notices of the
    commitments. As a result, Clark did not know the exact date the PSP received the
    information concerning Brandon’s commitments; however, it appeared the PSP
    received the records in 1999 when the records were actually entered into the PSP’s
    database. Clark also confirmed he had no records of Brandon previously obtaining
    a license to carry a firearm. Clark further testified the PSP did not have any
    Section 302, 303 or 304 petitions for Brandon.
    On re-direct examination, Clark explained the PSP did not receive
    Section 302 petitions from counties prior to 1998. Rather, transmission of that
    information became a requirement after the effective date of the PICS system.
    After that date, counties were required to transmit prior commitment information
    to the PSP. Further, in response to questions from the ALJ, Clark explained that an
    individual at the PSP inputs the data concerning involuntary commitments into the
    PICS database, and information can only be entered if the PSP receives a copy of
    an involuntary commitment from a hospital.
    The PSP’s counsel also indicated that the PSP issued a subpoena for
    Brandon, seeking to present him as a witness in its case-in-chief.        Brandon’s
    counsel objected on the ground that it was PSP’s burden to establish a Section 302
    petition existed, and it could not produce any such petition. Thus, Brandon’s
    counsel asserted the PSP could not meet its burden regardless of whether Brandon
    testified.   Brandon’s counsel also objected on the ground the PSP began to
    5
    criminally charge individuals for making false statements on forms when
    attempting to purchase a firearm or obtain a license to carry a firearm. As such, he
    objected on the ground that Brandon was asserting his Fifth Amendment privilege
    against self-incrimination as Brandon could be implicated by any testimony the
    PSP sought to elicit.      In response, the ALJ stated, because Brandon could
    potentially subject himself to criminal prosecution by testifying, he had a right to
    invoke his Fifth Amendment right not to do so.
    The parties also presented oral argument in support of their positions.
    Brandon’s counsel asserted there were no Section 302 petitions presented. He
    argued that in the absence of a Section 302 petition, the PSP previously admitted in
    another case that it could not meet its burden to establish an individual was
    involuntarily committed.     Specifically, Brandon’s counsel asserted that in an
    earlier federal case, a deputy attorney general representing the PSP entered into a
    settlement agreement acknowledging that, absent a Section 302 petition, the PSP
    could not meet its burden. See R.R. at 82a-84a. Because the PSP produced no
    Section 302 petition here, Brandon maintained, it could not meet its burden.
    In response, the PSP’s counsel explained that, in general, when the
    PSP creates a settlement agreement, the language of the agreement indicates it is
    not binding on the agency. Additionally, the PSP’s counsel argued that, based on
    the preponderance of the evidence standard applicable in this administrative
    agency proceeding, the PSP met its burden of proving Brandon was subject to two
    prior involuntary commitments.
    6
    Specifically, the PSP asserted that Rose testified counties do not
    report matters to PSP unless they involve 302 proceedings and involuntary
    commitments. And, counties wait until after the conclusion of a Section 302
    proceeding to do so. Here, the PSP’s counsel argued, there was a Section 302
    disposition as indicated on the two IRES forms.                   The PSP’s counsel further
    explained that, if this matter was before a federal or state trial court on an
    expungement matter, the outcome might be different; however, in an
    administrative agency proceeding such as the one at issue here, based on the
    totality of the evidence, denial of Brandon’s appeal was appropriate.
    A day after the hearing, the ALJ issued an order in which he denied
    Brandon’s appeal.          Brandon subsequently filed an emergency motion for
    reconsideration and stay pending reconsideration in which he again asserted that,
    in the absence of a Section 302 petition, the PSP could not meet its burden of
    proving he was prohibited from obtaining a license to carry a firearm. The ALJ
    granted a stay pending reconsideration, and he directed the parties to file letter
    briefs in support of their positions.
    After the submission of the briefs, the ALJ issued an order in which
    he sustained Brandon’s appeal. The PSP now petitions for review to this Court.3
    3
    After the PSP filed its petition for review to this Court, Brandon filed an application for
    summary relief, seeking dismissal of the PSP’s petition for review on the ground that the PSP
    sets forth no valid basis upon which to reverse of the ALJ’s decision. The undersigned denied
    Brandon’s motion in July 2015.
    7
    Generally, under Section 302 of the MHPA, an emergency mental
    examination of a patient may be undertaken where a physician certifies an
    examination is needed or an authorized county administrator approves a warrant
    for examination. R.H.S. v. Allegheny Cnty. Dep’t of Human Servs., Office of
    Mental Health, 
    936 A.2d 1218
    (Pa. Cmwlth. 2007) (citing 50 P.S. §7302). A
    patient must be examined within two hours after arrival at a treatment facility. 
    Id. If the
    examination reveals the patient needs treatment, it must begin immediately.
    
    Id. If treatment
    is not necessary, the patient must be discharged. 
    Id. In any
    event,
    the patient must be discharged within 120 hours unless it is determined further
    treatment is necessary or the patient voluntarily seeks additional treatment. 
    Id. Further, Section
    6105 of the UFA states, in relevant part (with
    emphasis added):
    (a) Offense defined.--
    (1) A person who has been convicted of an offense enumerated
    in subsection (b), within or without this Commonwealth,
    regardless of the length of sentence or whose conduct meets the
    criteria in subsection (c) shall not possess, use, control, sell,
    transfer or manufacture or obtain a license to possess, use,
    control, sell, transfer or manufacture a firearm in this
    Commonwealth.
    ****
    (c) Other persons.--In addition to any person who has been
    convicted of any offense listed under subsection (b), the
    following persons shall be subject to the prohibition of
    subsection (a):
    ****
    8
    (4) A person who has been adjudicated as an incompetent
    or who has been involuntarily committed to a mental
    institution for inpatient care and treatment under section
    302, 303 or 304 of the provisions of the act of July 9,
    1976 (P.L. 817, No. 143), known as the Mental Health
    Procedures Act. This paragraph shall not apply to any
    proceeding under section 302 of the [MHPA] unless the
    examining physician has issued a certification that
    inpatient care was necessary or that the person was
    committable.
    18 Pa. C.S. §6105(a)(1), (c)(4).
    On appeal, the PSP argues it met its burden of proving that Brandon
    was properly denied a license to carry concealed firearms by introducing the
    records from the County’s mental health department and other supporting
    documentation, which indicates Brandon was involuntarily committed under
    Section 302 of the MHPA after examinations in 1987 and 1994. The PSP asserts
    the two IRES reports it submitted were intended to be a summation of the entire
    Section 302 incident. Further, Rose testified that the disposition portion of the
    report would indicate that there was a Section 302 involuntary commitment only if
    a doctor certified that Brandon was severely mentally disabled, i.e., a clear and
    present danger to himself or others, and in need of inpatient treatment. The PSP
    contends the fully executed involuntary commitments prompted the County to
    notify the PSP as it was required to do by statute. Thus, the PSP argues, Brandon
    was properly denied a concealed license to carry a firearm.
    “On appellate review, we will affirm the decision of an administrative
    agency unless constitutional rights were violated, an error of law was committed,
    the procedure before the agency was contrary to statute, or any finding of fact
    9
    made by the agency and necessary to support its adjudication is unsupported by
    substantial evidence.” D’Alessandro v. Pa. State Police, 
    937 A.2d 404
    , 409 (Pa.
    2007) (citing Section 704 of the Administrative Agency Law (AAL), 2 Pa. C.S.
    §704; Pa. Game Comm’n v. State Civil Serv. Comm’n (Toth), 
    747 A.2d 887
    (Pa.
    2000)).
    In City of Philadelphia v. Hinkle, 
    881 A.2d 22
    , 26 (Pa. Cmwlth.
    2005), this Court explained:
    Under [the standard of review set forth in Section
    704 of the AAL], the General Assembly has only allowed
    courts to substitute their discretion for that of the agency
    where there is a violation of a constitutional right, where
    the decision is not in accordance with the law, or it is in
    violation of procedural rights guaranteed by the [AAL],
    and where there is no substantial evidence to support the
    agency decision. Any review of an agency decision must
    fall within one of those areas.
    Further, “[i]ncluded in both the violation of constitutional rights and
    violation of the procedural rights guaranteed by the [AAL] is the requirement that
    an agency explain its decision. An agency is already obligated by federal due
    process to state reasons for its decision.” 
    Hinkle, 881 A.2d at 26
    (citing Goldberg
    v. Kelly, 
    397 U.S. 254
    (1970)). Indeed, pursuant to Section 507 of the AAL: “All
    adjudications of a Commonwealth agency shall be in writing, shall contain
    findings and the reasons for the adjudication, and shall be served upon all parties or
    their counsel personally, or by mail.” 2 Pa. C.S. §507 (emphasis added).
    Section 507 of the AAL requires that adjudications contain findings of
    fact that are “sufficiently specific to enable [a reviewing] court … to pass upon
    10
    questions of law.” In re: Petition for Formation of Independent Sch. Dist., 
    962 A.2d 24
    , 28 (Pa. Cmwlth. 2008) (quoting Henderson v. Office of Budget, 
    537 A.2d 85
    , 86 (Pa. Cmwlth. 1988)). Further, adjudications stating only that a party “failed
    to present evidence” to meet its burden do not comply with Section 507 of the
    AAL. 
    Id. Here, the
    ALJ’s order sustaining Brandon’s appeal states, in its
    entirety:
    AND NOW THIS 15th day of May 2015, having heard
    the appeal of [Brandon], reviewing the briefs of counsel and
    applying applicable case law to the denial of relief by the
    [PSP], dated February 14, 2014 the request of [Brandon] for
    Relief is hereby SUSTAINED. [PSP] is hereby ordered to
    amend the PICS database within 30 days so as to remove, as it
    pertains to [Brandon], the disability imposed by Subsection
    (c)(4) of Section 6105, 18 Pa. C.S. [§]6105 (c)(4). A petition
    for review of this decision in Commonwealth Court must be
    filed within 30 days of the date of this order.
    R.R. at 85a.
    The PSP argues that, contrary to the ALJ’s decision, it presented
    substantial evidence to prove that Brandon was properly disqualified from
    obtaining a license to carry concealed firearms. However, our review of this claim
    is problematic. To that end, the ALJ set forth no findings or reasons in support of
    his order, rendering it impossible for this Court to conduct appellate review of the
    ALJ’s adjudication. In the absence of any findings or reasons for the ALJ’s order,
    this Court is left to guess at the ALJ’s reasoning for sustaining Brandon’s appeal.
    This is particularly true here where, after hearing, the ALJ initially issued a
    decision dismissing Brandon’s appeal, and after reconsideration, issued a decision
    11
    sustaining Brandon’s appeal, both without explanation. Further, in this case, the
    PSP, which bore the burden of proof,4 was the only party to present evidence, and
    that evidence could support the grant or denial of Brandon’s appeal.5 As a result,
    4
    See Section 6111.1(e)(3) of the UFA, 18 Pa. C.S. §6111.1(e)(3).
    5
    As set forth above, Section 6105(c)(4) of the UFA prohibits a person who was
    involuntarily committed to a mental institution for inpatient care and treatment under Section
    302 of the MHPA from, among other things, possessing or obtaining a license to possess a
    firearm. 18 Pa. C.S. §6105(c)(4). This prohibition does not apply to any proceeding under
    Section 302 unless the examining physician issued a certification that inpatient care was
    necessary or that the person was committable. 
    Id. However, the
    plain language of Section
    6105(c)(4) of the UFA does not require submission of the actual examining physician’s
    certification. 
    Id. Rather, the
    PSP could meet its burden of proof through the presentation of
    circumstantial evidence. See, e.g., A.B. v. Slippery Rock Area Sch. Dist., 
    906 A.2d 674
    (Pa.
    Cmwlth. 2006). In A.B., this Court explained:
    Circumstantial evidence has been defined as ‘evidence of
    one fact, or of a set of facts, from which the existence of the fact to
    be determined may reasonably be inferred,’ W. PAGE KEETON
    ET AL., PROSSER AND KEETON ON THE LAW OF TORTS §
    39, at 242 (5th ed. 1984) in contrast to direct evidence where there
    is direct eyewitness testimony of the ultimate fact to be
    determined. Monaci v. State Horse Racing Commission, 
    717 A.2d 612
    (Pa. Cmwlth. 1998). The inference from which the conclusion
    is derived ‘is simply a clear, logical, reasonable and natural
    conclusion which the trier of fact may embrace or reject based on
    the evidence in the case.’ Bixler v. Hoverter, 
    491 A.2d 958
    , 959
    (Pa. Cmwlth. 1985); see also Commonwealth v. Shaffer, 
    447 Pa. 91
    , 
    288 A.2d 727
    (1972) (‘an inference is no more tha[n] a logical
    tool enabling the trier of fact to proceed from one fact to another.’)
    The facts presented are the foundation of any inference and will
    determine whether that inference is reasonable. Ellis v. City of
    Pittsburgh, 
    703 A.2d 593
    (Pa. Cmwlth. 1997). A party is not
    entitled to an inference of fact which amounts to nothing more than
    a guess or conjecture. Flaherty v. Pennsylvania Railroad Co., 
    426 Pa. 83
    , 
    231 A.2d 179
    (1967). When properly proved,
    circumstantial evidence is entitled to as much weight as direct
    evidence. Commonwealth v. Chambers, 
    528 Pa. 558
    , 
    599 A.2d 630
    (1991).
    
    Id. at 677
    n.8. Additionally, the level of proof required to establish a case before the ALJ is the
    same degree of proof as used in most civil proceedings, i.e., a preponderance of the evidence.
    (Footnote continued on next page…)
    12
    we must vacate the ALJ’s May 2015 order and remand for an adjudication that
    contains findings and reasons for the decision. 2 Pa. C.S. §507; see Independent
    Sch. Dist. (where secretary’s decision on party’s petition to transfer portion of
    borough’s school-related services from one school district to another contained no
    specific findings regarding the evidence, but rather merely set forth conclusory
    findings indicating party did not submit sufficient information to meet its burden,
    remand was necessary for adjudication that complied with 2 Pa. C.S. §507); see
    also Turner v. Civil Serv. Comm’n, 
    462 A.2d 306
    (Pa. Cmwlth. 1983) (where
    commission’s decision merely concluded that police officer’s dismissal was for
    just cause without any findings as to which testimony was found credible, which
    charges against the officer were substantiated by the evidence, or what facts
    constituted just cause for dismissal from employment, remand was necessary for
    findings of fact consistent with Section 555 of the Local Agency Law, 2 Pa. C.S.
    §5556). We leave to the thoughtful discretion of the ALJ to determine whether to
    re-open the record for additional circumstantial evidence, such as hospital records.
    ROBERT SIMPSON, Judge
    (continued…)
    D’Alessandro v. Pa. State Police, 
    937 A.2d 404
    (Pa. 2007). A preponderance of the evidence is
    “such proof as leads the fact-finder ... to find that the existence of a contested fact is more
    probable than its nonexistence.” 
    A.B., 906 A.2d at 677
    n.5 (quoting Sigafoos v. Pa. Bd. of Prob.
    & Parole, 
    503 A.2d 1076
    , 1079 (Pa. Cmwlth. 1986)).
    Nonetheless, as explained above, because the ALJ did not set forth findings or reasons for
    his adjudication here, we are constrained to remand this matter. See 2 Pa. C.S. §507.
    6
    The language of Section 555 of the Local Agency Law is identical to the language of
    Section 507 of the Administrative Agency Law, 2 Pa. C.S. §507, which is at issue here.
    13
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Pennsylvania State Police,                  :
    Petitioner         :
    :   No. 841 C.D. 2015
    v.                              :
    :
    Richard Brandon,                            :
    Respondent         :
    ORDER
    AND NOW, this 24th day of November, 2015, the order of the
    Commonwealth of Pennsylvania, Office of Attorney General, dated May 15, 2015
    in Case No. FAD01163, is VACATED and this matter is REMANDED for
    proceedings consistent with the foregoing opinion.
    Jurisdiction is relinquished.
    ROBERT SIMPSON, Judge