Firearms Owners Against Crime - Inst. for Legal Leg. & Ed. Action v. Col. R. Evanchick, Comm. PSP ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Firearms Owners Against Crime - :
Institute for Legal, Legislative and :
Educational Action, Landmark :
Firearms LLC, and James Stoker, :
Petitioners :
:
v. : No. 218 M.D. 2022
: Argued: September 12, 2022
Colonel Robert Evanchick, :
Commissioner Pennsylvania :
State Police, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge1
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
SENIOR JUDGE LEADBETTER FILED: March 6, 2023
Before the Court for disposition are three matters: (1) the Application
for Summary and Special Relief in the Nature of a Writ of Mandamus and
Declaratory and Permanent Injunctive Relief (Application for Summary Relief) filed
by Firearms Owners Against Crime - Institute for Legal, Legislative and Educational
Action, Landmark Firearms LLC, and James Stoker (Petitioners); (2) Preliminary
Objections to the Amended Petition for Review filed by Colonel Robert Evanchick,
Commissioner Pennsylvania State Police (PSP or Respondent); and (3) Petitioners’
Partial Preliminary Objection to Respondent’s Preliminary Objections. Petitioners
1
This case was argued before a panel consisting of President Judge Cohn Jubelirer, Judge
McCullough, and President Judge Emerita Leadbetter. Following argument, Judge McCullough
recused herself in this matter. Judge Ceisler was assigned to consider the matter on the briefs as a
member of the panel.
filed original and amended petitions for review in this Court’s original jurisdiction
in which they allege that PSP is not complying with certain provisions of the
Pennsylvania Uniform Firearms Act of 1995, 18 Pa. C.S. §§ 6101-6128 (Firearms
Act or Act). Specifically, Petitioners allege that PSP is understaffing its firearm
background checks unit and, consequently, is failing to conduct “instantaneous”
firearm background checks and to provide “immediate” responses to requesters. In
both their Amended Petition and Application for Summary Relief, Petitioners
request various forms of declaratory, injunctive, and mandamus relief compelling
PSP to “comply with the Firearms Act.”
In its preliminary objections, PSP asserts two demurrers and argues that
Petitioners’ claims are barred as a matter of law on several grounds, including
sovereign immunity, lack of standing, and separation of powers. Petitioners have,
in response, lodged a single preliminary objection to PSP’s preliminary objections,
arguing that PSP cannot raise the defenses of sovereign immunity and separation of
powers by way of preliminary objection.
Upon review, we (1) overrule Petitioners’ partial preliminary objection;
(2) sustain PSP’s first, second, and fifth preliminary objections; (3) dismiss, as moot,
PSP’s third and fourth preliminary objections; and (4) dismiss the above-captioned
case.
I. PROCEDURAL HISTORY
Petitioners filed their original petition for review on April 8, 2022,
followed by an Application for Special Relief in the Form of a Preliminary
Injunction under Pennsylvania Rule of Appellate Procedure 1532, Pa.R.A.P. 1532.
PSP filed preliminary objections to the original petition for review on May 2, 2022.
Petitioners filed their amended petition for review (Amended Petition) on May 10,
2022, after which this Court struck PSP’s original preliminary objections as moot.
2
On May 12, 2022, a hearing was conducted on the Original Petition and
Application for a Preliminary Injunction by a single judge, and the parties thereafter
submitted briefs. On September 2, 2022, this Court granted Petitioners’ Application
for Preliminary Injunction, in part, concluding that PSP was in violation of the
Firearms Act in failing to conduct background checks and provide results
immediately. The Court enjoined PSP from further noncompliance with the
Firearms Act and deferred ruling on the availability of any further relief until the
expedited argument now before the Court. See Firearm Owners Against Crime-Inst.
for Legal, Legis. and Educ. Action v. Evanchick (Pa. Cmwlth., No. 218 M.D. 2022,
filed Sept. 2, 2022) (Evanchick I) (McCullough, J., single-judge op.).
On May 16, 2022, Petitioners filed their Application for Summary
Relief, which PSP answered on May 31, 2022. On June 9, 2022, PSP filed
preliminary objections to the Amended Petition for Review. On June 14, 2022,
Petitioners filed their preliminary objection to PSP’s preliminary objections.
II. ALLEGATIONS IN THE AMENDED PETITION
In the Amended Petition, Petitioners allege that PSP purposely
understaffs its Pennsylvania Instant Check System (PICS) Operations Section,2
which is responsible for performing firearm purchase and transfer background
checks as well as checks for individuals seeking or renewing a Pennsylvania license
to carry a firearm. (Amended Petition (Am. Pet.), ¶ 1.) Petitioners allege that these
staffing deficiencies have caused significant delays in PSP’s processing of
background checks, a large proportion of which now are taking several hours or
more. Id., ¶ 44. Petitioners contend that this understaffing violates Section
6111.1(b) and (c) of the Firearms Act. See 18 Pa.C.S. § 6111.1(b), (c).
2
Although the division of PSP responsible for conducting the background checks has been
referred to by various titles throughout this litigation, for purposes of this opinion, we utilize the
title “PICS Operations Section,” which was used by PSP at the preliminary injunction hearing.
3
Petitioners also allege that these wait times cause some prospective
purchasers of firearms to cancel their purchases, thus depriving firearms sellers of
income from cancelled sales. In addition, Petitioners state that PSP charges a $2.00
fee for each background check and a $3.00 fee for the sale of each firearm.
Petitioners allege that they have incurred substantial un-reimbursable costs in paying
PSP for background checks when the customer cancels the pending transaction due
to a significant delay. Id., ¶ 4. The Amended Petition sets forth in detail facts
specific to the individual Petitioners that sell firearms regarding how they have been
impacted by the alleged understaffing of the PICS Operations Section. Id., ¶¶ 17-
41. Based on these allegations, the Amended Petition seeks the following relief:
a. Declare that [PSP’s] Practice is unlawful and in
contravention of 18 Pa.C.S. §§ 6111, 6111.1(b)(1), (c), as
well as, [a]rticle I, [s]ections 1 [and] 21 of the
Pennsylvania Constitution [Pa. Const. art. I, §§ 1, 21], and
the Second Amendment to the U.S. Constitution [U.S.
Const. amend. II];
b. Issue an injunction enjoining the enforcement of
[PSP’s] Practice and requiring [PSP] and its officers,
agents, servants, employees, and all persons in active
concern or participation with them to immediately comply
with 18 Pa.C.S. §§ 6111, 6111.1(b)(1), (c), as well as,
[a]rticle I, [s]ections 1 [and] 21 of the Pennsylvania
Constitution, and the Second Amendment to the U.S.
Constitution, by immediately either repurposing existing
employees or hiring and training as many new employees
for the [PICS Operations Section] as are necessary to
ensure that all background checks are performed
“instantaneously” and responses to them are
“immediate[];”
c. Issue an injunction precluding [PSP] from requesting
the $2.00 fee for any background checks, where the
customer cancels the purchase/transfer of the firearm due
to the delays of the PICS system and consistent therewith,
4
order it to assume that any Federal Firearms Licensee that
utilizes PICS and does not remit the $2.00 background
check fee is the result of the customer cancelling the
purchase/transfer of the firearm due to the delays of the
PICS system and preclude it from requiring the Federal
Firearms Licensee to verify such in any manner; and[]
d. Any other relief this Court may see fit.
(Am. Pet., pp. 22-23).
III. PSP’S PRELIMINARY OBJECTIONS AND PETITIONERS’
PRELIMINARY OBJECTION THERETO
PSP lodges five preliminary objections to the Amended Petition:
(1) Sovereign immunity precludes all of Petitioners’ claims;
(2) Petitioners have not set forth a valid claim for mandamus
relief (demurrer);
(3) The doctrine of separation of powers precludes all of
Petitioners’ claims;
(4) Petitioners do not have standing to challenge the
imposition of the $2.00 background check fee; and
(5) Petitioners have not set forth a valid claim under the
Second Amendment (demurrer).
Before addressing the substance of PSP’s preliminary objections, we
address Petitioners’ “partial” preliminary objection in which they argue that the
defenses of sovereign immunity and separation of powers cannot be raised by
preliminary objection. Petitioners argue that these defenses must be raised as new
matter under Pennsylvania Rule of Civil Procedure, Pa.R.Civ.P. 1030(a) (“Except
as provided by subdivision (b), all affirmative defenses including . . . immunity from
5
suit . . . shall be pleaded in a responsive pleading under the heading “New
Matter[.]”).
Regarding the defense of separation of powers, Rule 1030 on its face
does not bar raising the defense via preliminary objection, and this Court previously
has considered preliminary objections to mandamus actions that raise the separation
of powers defense. See, e.g., Finn v. Rendell, 990 A.2d 100, 106 (Pa. Cmwlth. 2010).
Regarding sovereign immunity, although Rule 1030 indicates that immunity
ordinarily must be raised in New Matter, “a party may raise the affirmative defense
of immunity as a preliminary objection where it is clearly applicable on the face of
the complaint; that is, that a cause of action is made against a governmental body
and it is apparent on the face of the pleading that the cause of action does not fall
within any of the exceptions to governmental immunity.” Orange Stones Co. v. City
of Reading, 87 A.3d 1014, 1022 (Pa. Cmwlth. 2014) (citation omitted). Because
PSP argues that Petitioners’ injunctive and declaratory claims are barred on their
face by sovereign immunity, we can and will address the merits of that defense here.
Petitioners’ preliminary objection in this regard is overruled.3
Sovereign Immunity
PSP argues that Petitioners impermissibly seek to compel PSP to take
affirmative action, citing Philadelphia Life Insurance Company v. Commonwealth,
190 A.2d 111 (Pa. 1963). The Pennsylvania Supreme Court stated therein as
follows:
The distinction is clear between suits against the
Commonwealth which are within the rule of its immunity
and suits to restrain officers of the Commonwealth from
enforcing the provisions of a statute claimed to be
3
We ultimately do not reach the separation of powers issue.
6
unconstitutional. Suits which seek to compel affirmative
action on the part of state officials or to obtain money
damages or to recover property from the Commonwealth
are within the rule of immunity; suits which simply seek
to restrain state officials from performing affirmative acts
are not within the rule of immunity.
Id. at 114 (emphasis in bold added). Regardless of how the request for relief is
phrased, it is the substance of the relief requested that determines whether the
injunction is mandatory or prohibitory. Stackhouse v. Pa. State Police, 892 A.2d 54,
61 (Pa. Cmwlth. 2006). The nature of mandatory injunctions is to “command[] the
performance of an affirmative act[.]” Big Bass Lake Cmty. Ass’n v. Warren, 950
A.2d 1137 (Pa. Cmwlth. 2008).
PSP here contends that Petitioners’ claims for declaratory and
injunctive relief are barred by sovereign immunity because they seek to compel PSP
to perform affirmative acts, namely, hiring new employees, moving employees from
other sections in PSP to the PICS Operations Section, and waiving or refunding the
$2.00 background check fee imposed by subsection 6111(b)(3) of the Firearms Act.
Petitioners argue that sovereign immunity does not apply because they are seeking
declaratory and injunctive relief in the nature of a request for mandamus seeking to
compel PSP’s performance of a mandatory or ministerial statutory duty. No matter
how it is worded, the injunctive relief requested seeks to compel PSP to take
affirmative, concrete, and corrective action in the form of hiring or reassigning
employees and waiving the $2.00 background check fee. Thus, consistent with the
Supreme Court’s ruling in Philadelphia Life Insurance Company,
to the extent that Petitioners’ Amended Petition seeks permanent, affirmative
injunctive relief apart from mandamus, such relief is barred by sovereign immunity.
7
However, declaratory judgment actions in themselves are not barred by
sovereign immunity. See Legal Cap., LLC v. Med. Pro. Liab. Catastrophe Loss
Fund, 750 A.2d 299, 303 (Pa. 2000) (sovereign immunity did not bar action where
goal of action was to restrain the Fund from performing the affirmative act of paying
assigned plaintiffs or counsel and not an action to compel any affirmative action on
the part of the Fund). To the extent that Petitioners seek declarations regarding
PSP’s duties, and their right to certain benefits, under the Firearms Act, their claim
is not barred by sovereign immunity. See id. We accordingly will sustain PSP’s
first preliminary objection in part and dismiss any claims in the Amended Petition
requesting injunctive relief that would compel PSP to take affirmative action. We
overrule the remainder of the objection.
Demurrer to Claim for Mandamus Relief
Although sovereign immunity will bar a claim for injunctive relief
seeking to compel a state officer or agency to take affirmative action, sovereign
immunity will not bar a writ of mandamus compelling state parties to perform certain
mandatory or ministerial duties. Finn, 990 A.2d at 105. Nonetheless, PSP argues
that even if Petitioners’ requests for relief are construed as requests for mandamus
relief, Petitioners fail to satisfy the necessary prerequisites to maintain a mandamus
action. In considering preliminary objections in the nature of a demurrer, we apply
the following standard:
In ruling on preliminary objections, we must accept as true
all well-pleaded material allegations in the petition for
review, as well as all inferences reasonably deduced
therefrom. The Court need not accept as true conclusions
of law, unwarranted inferences from facts, argumentative
allegations, or expressions of opinion. In order to sustain
preliminary objections, it must appear with certainty that
8
the law will not permit recovery, and any doubt should be
resolved by a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the [petition for review] and all
inferences reasonably deducible therefrom. It tests the
legal sufficiency of the challenged pleadings and will be
sustained only in cases where the pleader has clearly failed
to state a claim for which relief can be granted. When
ruling on a demurrer, a court must confine its analysis to
the [petition for review].
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted). This
Court has described mandamus relief as follows:
A writ of mandamus is an extraordinary remedy, [ ] used
to compel performance of a ministerial act or a mandatory
duty. Mandamus may only be granted where the moving
party establishes a clear legal right, the [respondent’s]
corresponding duty and the lack of any other appropriate
and adequate remedy.
DeGeorge v. Young, 892 A.2d 48, 51 (Pa. Cmwlth. 2006) (citation omitted).
Mandamus differs from declaratory relief in that mandamus “is not available to
establish legal rights but only to enforce rights that have been established.”
Sinkiewicz v. Susquehanna Cnty. Bd. of Comm’rs, 131 A.3d 541, 546 (Pa. Cmwlth.
2015). “An act is ministerial if it is one which a public officer is required to perform
upon a given state of facts and in a prescribed manner in obedience to the mandate
of legal authority.” Filippi v. Kwitowski, 880 A.2d 711, 713 (Pa. Cmwlth. 2005)
(internal quotation and citation omitted). “The burden of proof falls upon the party
seeking this extraordinary remedy to establish his legal right to such relief.” Werner
v. Zazyczny, 681 A.2d 1331, 1335 (Pa. 1996). Further:
[M]andamus lies to compel the performance of a purely
ministerial duty. For example, if a statute requires an
9
official to grant a license to an applicant upon payment of
a specified fee and the official refuses to do so, mandamus
is the proper remedy to compel action. Moreover, it is true
in this state that mandamus will lie to compel performance
by a public official of a legal duty even if the existence
and/or scope of the duty must be found and defined in the
mandamus action itself. On the other hand, mandamus will
not lie to compel performance of a discretionary act or to
govern the manner of performing a required act.
Volunteer Firemen’s Relief Ass’n of the City of Reading v. Minehart, 203 A.2d 476(Pa. 1964) (citations omitted).
Section 6111 of the Firearms Act dictates what licensed sellers or
dealers of firearms must do prior to delivering a firearm to a buyer or transferee. It
does not impose duties on PSP. Relevant here, that section imposes on sellers the
duties to (1) request a background check through PSP’s “Instantaneous Criminal
History Records Check System,” see 18 Pa.C.S. § 6111(a)(2), (b)(3); and (2) collect
from buyers and transmit to PSP within 14 days an associated $2.00 fee.4
Section 6111.1, on the other hand, imposes duties on PSP. Section
6111.1(b) provides that, when PSP receives a request for a background check
(pursuant to Section 6111(b)(3)), it “shall immediately during the licensee’s call or
by return call forthwith” (1) review PSP’s criminal history, fingerprint, juvenile
delinquency, and mental health records to determine if the potential purchaser or
transferee is prohibited from receiving or possessing a firearm; and (2) inform the
licensee of whether the sale or transfer is prohibited or approved. 18 Pa.C.S. §
4
The Firearms Act and PSP regulations suggest that the $2.00 fee is to be collected from
the buyer/transferee by the licensee and later forwarded to PSP. See 18 Pa.C.S. § 6111(b)(3) (“The
requester shall be charged a fee equivalent to the cost of providing the service but not to exceed
$2 per buyer or transferee.”), and 6111(b)(1.2) (“Fees collected under paragraph (3) . . . shall be
transmitted to [PSP] within 14 days of collection.”); 37 Pa. Code § 33.111(h)(2) (“When the
instantaneous records check is operational, a fee shall be collected by the licensee/sheriff from the
requester at the time a check is requested, under section 6111(b)(3) of the act.”).
10
6111.1(b)(1) (emphasis provided). In the event of delay caused by “electronic
failure, scheduled computer downtime or similar event beyond the control of the
[PSP],” PSP must notify the seller requesting the background check of the reason
for and estimated length of the delay. 18 Pa.C.S. § 6111.1(b)(2). Subsection
6111.1(c) requires PSP to “establish a telephone number which shall be operational
seven days a week between the hours of 8 a.m. and 10 p.m. local time for purposes
of responding to inquiries as described in this section” and further requires PSP to
“employ and train such personnel as are necessary to administer expeditiously the
provisions of this section.” 18 Pa.C.S. § 6111.1(c) (emphasis provided).
Although the General Assembly did not define either “immediate” or
“expeditiously” as those terms are applied to Section 6111.1 of the Firearms Act, the
rules of statutory construction provide that “words and phrases shall be construed
according to the rules of grammar and according to their common and approved
usage.” Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. §
1903(a). The term “immediate” is commonly defined, in part, as “occurring without
delay.” See Immediate Black’s Law Dictionary (11th ed. 2019). “Expeditiously” is
the adverb form of “expeditious,” which commonly is defined as “marked by or
acting with prompt efficiency.” “Expeditious,” Merriam-Webster.com Dictionary,
Merriam-Webster, https://www.merriam-webster.com/dictionary/expeditious (last
accessed Mar. 3, 2023). It is thus clear that the General Assembly intended that
background checks and their results be communicated to requesters as efficiently
and promptly as reasonably possible.
Even assuming, as we must for purposes of considering preliminary
objections, the factual allegation pled by Petitioners that they have experienced
delays lasting from several hours to days or weeks in some instances in the
11
processing of at least some of the background checks they have requested from PSP,5
their claim for mandamus relief is not viable as a matter of law for two reasons.
First, in order to establish a mandatory or ministerial duty, a statute must be so
explicit that there can be no room for argument as to the precise action required.
Here, given that many factors can affect the amount of time it may take to obtain the
information necessary to determine whether the proposed buyer is eligible to
purchase a gun, and further given that PSP has a corresponding duty to protect public
safety by obtaining and providing accurate background information to prevent
weapons from falling into ineligible hands, it cannot be said that the response time
duty is so clear and precise as to be susceptible to mandamus relief.
Second, the mandamus relief requested relates to operational matters,
which are discretionary or not mandated in the statute at all. Petitioners request that
we (1) order PSP to comply with Sections 6111 and 6111.1 by hiring or transferring
from other PSP sections a sufficient number of new PICS operators to ensure that
background checks are instantaneous and results are immediate; and (2) enjoin PSP
from requesting or collecting the $2.00 fee for any background checks after which
the purchaser or transferee cancels the transaction because of delays in the PICS
system. Petitioners request this relief in both the Amended Petition and Application
5
We incorporate herein the findings made in the September 2, 2022 single-judge
Memorandum Opinion disposing of Petitioners’ Application for Preliminary Injunction. See
Evanchick I, slip op. at 11. Those findings confirm what Petitioners fundamentally have alleged
in their Amended Petition and Application for Summary Relief. Although approximately 65% of
the online background checks performed through PSP’s automated system run automatic checks
and provide near-immediate results, approximately 35%, because of background information
returned by the automated system, require further investigation. Those requests are transferred to
a PICS operator and, if no operator is immediately available, are placed into a queue. Wait times
in the queue and after can extend multiple hours or even into a second day and beyond. These are
the delays that Petitioners challenge in this action.
12
for Summary Relief in terms of mandamus. See Am. Pet. ¶ 7; Appl. for Summ.
Relief at pp. 33-34.
Petitioners allege in their Amended Petition that PSP has understaffed
the PICS Operations Section causing significant delays and lost firearm sales. They
request that we order PSP to employ a sufficient number of PICS operators to ensure
that background checks are conducted in accordance with Sections 6111 and 6111.1.
Section 6111(b)(c) requires that PSP employ and train such personnel as are
necessary to perform its duties “expeditiously.” The statute does not specify how
many employees are “necessary” or how the PICS Operations Section should be
structured. Rather, it leaves those decisions to PSP’s discretion.
Further, staffing and training decisions by PSP necessarily involve
questions of budgeting and legislative appropriations, both of which we conclude
are beyond the reach of this Court’s ability to grant mandamus relief. Even to the
extent that the delays in conducting background checks and returning results are
caused by staffing shortages in the PICS Operations Section, we nevertheless cannot
issue a writ of mandamus dictating how PSP must staff, organize, or fund that unit
when the Firearms Act leaves those matters to PSP’s discretion. And, even if PSP
has exercised its discretion incorrectly, mandamus will not lie to force particular
corrective action.6 Sinkiewicz, 131 A.3d at 546. In this respect, we sustain PSP’s
demurrer to the request for a writ of mandamus.
6
This includes Petitioners’ request that we order PSP to refund, waive, or not collect the
$2.00 background check fee in the event that a potential purchaser or transferee cancels the
transaction because of delays in processing a background check request. The fee is mandatory in
every instance, and the Firearms Act provides no mechanism for refunding it due to delays,
canceled sales, or for any other reason. Petitioners ask the Court to fashion a remedy that the
General Assembly did not see fit to create. Thus, mandamus relief in this form is not available.
See Keystone Rx LLC v. Bureau of Workers’ Comp. Fee Rev. Hearing Off. (Compservices
Inc./AmeriHealth Cas. Servs.), 265 A.3d 322 (Pa. 2021) (courts are precluded from engrafting
13
Declaratory Relief
The reasons cited above precluding injunctive and mandamus relief
also prevent the sort of declaratory relief sought by Petitioners. We simply cannot
declare that the statute requires particular staffing or funding without adding words
or mandates that the General Assembly did not include. Similarly, we cannot specify
that responses must be given within a fixed amount of time, or that fees be refunded
for cancelled transactions. That would not only add mandates lacking in the statute
but could run afoul of PSP’s duty to obtain accurate background information before
approving the purchase of a gun. As we noted in Stackhouse:
While the language in a number of cases seems to suggest
that immunity is never a defense, it would seem self-
evident that where a request for a declaration of rights can
have no effect nor serve any purpose other than as the legal
predicate for a damage or other immunity-barred claim in
the same action, the demand for declaratory relief ought to
fall along with the claim it serves to support. The purpose
of absolute sovereign immunity—to insulate state
agencies and employees not only from judgments but also
from being required to expend the time and funds
necessary to defend suits—would be frustrated if the
declaratory action were allowed to go forward under those
circumstances.
Stackhouse, 892 A.2d at 62. Therefore, we sustain PSP’s demurrer to the claim for
declaratory relief.
Demurrer to Count II
Finally, PSP demurs to Petitioners’ claim in Count II that PSP’s actions
violate their right to due process under article I, section 21 of the Pennsylvania
remedies in the workers’ compensation arena in the absence of statutory support; remedies are
limited to those created by the General Assembly).
14
Constitution.7 Even if we were to assume one has a property right in merchandise
he is only seeking to purchase, Petitioners do not allege that any eligible person has
been denied approval of his application to purchase a firearm, only that the process
takes, in some instances, longer than Petitioners desire. As this does not even rise
to an allegation of a deprivation of a property or a liberty interest, we need not
address this claim further. Similarly, the claim that due process requires that the
modest $2.00 fee PSP charges must be refunded if the purchaser aborts his
application after PSP has already spent time checking his background but has not
concluded its search, is manifestly devoid of merit. We sustain PSP’s demurrer to
Count II.
Accordingly, the above-captioned case is dismissed.
__________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
Judge McCullough and Judge Wallace did not participate in the decision for this
case.
7
Article I, section 21 of the Pennsylvania Constitution provides: “The right of the citizens
to bear arms in defense of themselves and the State shall not be questioned.” Pa. Const. art. I, §
21. Although PSP erroneously characterizes its demurrer as challenging a claim under the Second
Amendment to the U.S. Constitution, it is clear both that it is demurring to Count II and that Count
II does not set out a claim of any constitutional violation.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Firearms Owners Against Crime - :
Institute for Legal, Legislative and :
Educational Action, Landmark :
Firearms LLC, and James Stoker, :
Petitioners :
:
v. : No. 218 M.D. 2022
:
Colonel Robert Evanchick, :
Commissioner Pennsylvania :
State Police, :
Respondent :
ORDER
AND NOW, this 6th day of March, 2023, the above-captioned case is
hereby DISMISSED.
__________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita