John Doe 1 v. Franklin County

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Doe 1, John Doe 2, John Doe 3 :
and Jane Doe 1, :
Appellants :
:
v. : No. 1634 C.D. 2015
: Argued: March 7, 2016
Franklin County, Franklin County :
Sheriff’s Office, Franklin County :
Sheriff Dane Anthony and Employee :
John/Jane Does :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: May 20, 2016
John Doe 1, John Doe 2, John Doe 3, and Jane Doe 1 (together, “Licensees”)
appeal from an August 13, 2015 Order of the Court of Common Pleas of the 39th
Judicial District (Franklin County branch) (common pleas)1 sustaining the
Preliminary Objections (POs) of Franklin County (County), Franklin County
Sheriff’s Office (Sheriff’s Office), and Franklin County Sheriff Dane Anthony
(Sheriff Anthony) (together, “Defendants”) and dismissing their Complaint.2 At
1
All members of the Court of Common Pleas of Franklin County were recused from this
matter. The matter was assigned to Senior Judge Stewart L. Kurtz of the Court of Common
Pleas of Huntingdon County.
2
Licensees also asserted claims against two unnamed employees of Defendants
(Employee Does). Employee Does were not served and did not enter their appearance in this
matter. Common pleas construed Defendants’ POs to be on behalf of all parties, including the
Employee Does.
issue in this appeal are allegations concerning the procedures by which Defendants
manage issuing, renewing, revoking, and denying Licenses to Carry Firearms
(License). Licensees allege that Defendants’ procedures violate various provisions
of the Pennsylvania Uniform Firearms Act of 1995 (UFA),3 and that Defendants
have infringed upon Licensees’ privacy, breached their fiduciary duties to
Licensees, and committed civil conversion. Upon review, we reverse in part,
affirm in part, and remand for further proceedings.
I. BACKGROUND
Licensees are four adult residents of the County that have received a License
from the Sheriff’s Office. Licensees filed an eight-count Class Action Complaint
(Complaint) against Defendants on December 19, 2014. Therein, Licensees allege
that since prior to January 1, 2009, Defendants have notified individual License
applicants that their applications have been approved, denied, or that their Licenses
were revoked utilizing un-enveloped postcards through the United States Postal
Service (USPS). (Compl. ¶¶ 18-19, 21.) The writing exposed on the postcards
allegedly includes the applicant’s name, address, and a statement that the
application has been approved, denied, or License revoked. (Compl. ¶¶ 18-19.)
Licensees further allege that since before January 1, 2009, Defendants have issued
renewal notices to some License holders using postcards through the USPS stating:
“Pistol Permit – Our Records indicate that your Permit to Carry a Firearm will
soon expire. . . .” (Compl. ¶ 21.) Licensees allege that because the information
was sent on a postcard, the approval, denial, revocation, and renewal notices were
“visible by all individuals processing, mailing[,] and serving the mail, as well as,
3
18 Pa. C.S. § 6101-6127.
2
by any individual receiving the postcard at the address, who may or may not be the
applicant or license holder.” (Compl. ¶ 22.) Licensees also allege that Licensees
paid a fee to the County when they received their prior License that includes a
$1.50 renewal notice processing fee and that Defendants did not send the required
renewal notices or refund the $1.50 to two of the Licensees – John Doe 1 and Jane
Doe 1 – and other similarly situated License holders. (Compl. ¶¶ 20, 36, 52.)
Counts I-IV of the Complaint allege that, by sending renewal, approval,
denial, revocation, and renewal notices via a postcard instead of enclosing the
information within an envelope, the County (Count I), the Sheriff’s Office (Count
II), Sheriff Anthony (Count III), and Employee Does (Count IV) disclosed
confidential information in violation of Section 6111(i) of the UFA, 18 Pa. C.S. §
6111(i).4 (Compl. ¶¶ 69-84.)
Count V alleges that Defendants and Employee Does violated Licensees’
“right to privacy and invaded their seclusion, solitude, and private affairs, by, but
not limited to, publicly disclosing confidential information. . . .” (Compl. ¶ 86.)
Licensees allege that in addition to their statutory right of privacy under Section
6111(i) of the UFA, they have a right to privacy that is incident to the Right to
Keep and Bear Arms, and that “[t]he disclosure of confidential information is
highly offensive to a reasonable person and is not of legitimate concern to the
public.” (Compl. ¶¶ 87-88.)
Count VI of the Complaint alleges that pursuant to Section 6109(h) of the
UFA, 18 Pa. C.S. § 6109(h), Defendants County, Sheriff’s Office, and Sheriff
Anthony are required, and owed Licensees a fiduciary duty, to “either utilize the
$1.50 [paid to the County by Licensees] in the issuance of renewal notices or to
4
Added by Section 1 of the Act of April 22, 1997, P.L. 73.
3
refund the money to [Licensees].” (Compl. ¶ 94.) Relatedly, Count VII alleges
that these Defendants are liable for conversion for failing to either use the funds for
renewal notices or refund $1.50 to Licensees. (Compl. ¶¶ 96-98.)
The final count of the Complaint, Count VIII,5 alleges that Defendants have
violated the law and Licensees will be irreparably harmed if the practices
complained of above are allowed to continue. (Compl. ¶ 100.) Licensees seek
various forms of injunctive and declaratory relief, including: (1) an injunction
prohibiting Defendants from disclosing confidential information to those not
authorized under the UFA; (2) an injunction requiring Defendants to train its
employees on confidentiality; (3) an injunction requiring Defendants to use $1.50
of the License application fee for issuing renewal notices; (4) declaratory relief
declaring that Defendants’ policy of requiring License applicants to provide
references on License applications violates Section 6111(i) of the UFA; and (5) an
injunction barring Defendants from requiring License applicants to provide
references on License applications. (Compl. ¶¶ 102-04.) In addition to the
equitable relief sought in Count VIII, Licensees seek damages of $1000 “per
Defendant, per disclosure [of confidential information], per Class Member,” $1.50
per licensee for each five-year period where renewal notices were not issued, and
an award of attorney fees, expenses, costs, and interest. (Compl. Prayer for Relief
¶¶ 8-11.)
Defendants filed POs on February 2, 2015, demurring to the allegations in
the Complaint and alleging that the averments lacked specificity. Defendants’ POs
5
The final count of the Complaint is listed as Count VII. Because the Complaint alleges
two separate counts as Count VII, common pleas construed the final count as Count VIII. We
will do the same herein.
4
allege as follows:6 (1) some or all claims are barred by the applicable statute of
limitations, (POs ¶¶ 23-28); (2) Defendants did not violate Section 6111(i) of the
UFA because confidential information was not disclosed to the public, (POs ¶¶ 20-
22); (3) Sheriff Anthony is immune from suit under the doctrine of high public
official immunity, (POs ¶¶ 11-15); (4) the Sheriff’s Office is not a proper
defendant because it is not a legal entity separate from the County itself, (POs ¶¶
16-17); (5) Licensees have no available civil cause of action to recover damages
for, or a refund of, the $1.50 notice processing fee, (POs ¶¶ 53-61); (6) the County
itself, including the Sheriff’s Office, is immune from suit under the act popularly
known as the Political Subdivision Tort Claims Act (Tort Claims Act),7 (POs ¶¶
29-35); (7) Licensees have not stated a claim for invasion of privacy because they
have not pleaded facts showing that all the elements of the claim have been met,
(POs ¶¶ 36-52); (8) Licensees’ request for injunctive relief must fail because
Licensees have no clear right to relief, (POs ¶¶ 62-65); (9) the policy of requesting
references is lawfully performed pursuant to a duty imposed upon Sheriff Anthony
by the UFA, (POs ¶¶ 66-70); and (10) the Complaint lacks the specificity required
to inform Defendants of the factual grounds upon which their claims are based,
(POs ¶¶ 71-86).
Defendants filed a Motion to Supplement Preliminary Objections (Motion to
Supplement) on March 25, 2015, seeking to add an objection alleging that Act 5 of
1997, which amended the UFA and included the provisions at issue in Licensees’
Complaint, is unconstitutional under both the single-subject rule of Article III,
Section 3 of the Pennsylvania Constitution and the original purpose rule of Article
6
The POs have been reordered for purposes of this opinion.
7
42 Pa. C.S. §§ 8541-8564.
5
III, Section 1 of the same. Pa. Const. art. III, §§ 1, 3; (R.R. at 149a-51a).
Licensees filed an Answer to Defendants’ Motion to Supplement and included
New Matter alleging that: (1) Franklin County Local Rules and the Rules of Civil
Procedure prohibited supplementing POs; (2) Defendants are estopped from raising
the issue because they failed to take timely action after they became aware of the
objection; (3) Defendants’ constitutional argument is foreclosed by the doctrine of
laches; and (4) Defendants failed to join two indispensable parties – the
Pennsylvania State Police (State Police) and, possibly, the General Assembly.
(R.R. at 270a-73a.) The Motion to Supplement was granted by common pleas over
Licensees’ objection on May 8, 2015. (C.R. at Item 12.)
Common pleas issued an Order and Memorandum Opinion on August 13,
2015, sustaining many of Defendants’ POs and dismissing the Complaint. First,
common pleas held that Sheriff Anthony was immune to all claims seeking
damages under the doctrine of high public official immunity. (Op. at 6-8.)
Second, common pleas held that the Sheriff’s Office was not an independent legal
entity that could be subject to liability. (Op. at 8-9.) Third, common pleas
sustained Defendants’ POs to Licensees’ invasion of privacy and conversion
claims on the basis that Defendants are immune from such claims under the Tort
Claims Act; however, common pleas overruled the POs alleging Defendants’
immunity to Counts I-IV of the Complaint pursuant to the Tort Claims Act. (Op.
at 9-10.) Fourth, common pleas sustained Defendants’ demurrer to Count VI of
the Complaint on the grounds that Section 6109 of the UFA does not create a
private right of action for the recovery of $1.50 of the License application fee.
(Op. at 10.) Fifth, common pleas analyzed Section 6111(i) of the UFA and
concluded that Licensees did not state a claim for relief under Section 6111(i) of
6
the UFA because Licensees did not plead facts indicating that Defendants publicly
disclosed confidential information. (Op. at 11-13.) Finally, common pleas held
that Licensees did not sufficiently establish a clear right to injunctive and
declaratory relief and sustained the demurrer to Count VIII of Licensees’
Complaint. (Op. at 13-14.) Having sustained POs addressing every claim asserted
by Licensees, common pleas dismissed the action without addressing Defendants’
POs alleging insufficient specificity, that the actions are time-barred by the
applicable statute of limitations, or Defendants’ supplemental PO alleging that Act
5 of 1997 was enacted in a constitutionally infirm process. This appeal followed.
II. DISCUSSION
When reviewing a court of common pleas’ decision to sustain preliminary
objections in the nature of a demurrer, “our standard of review is de novo and our
scope of review is plenary.” Owens v. Lehigh Valley Hospital, 103 A.3d 859, 862
n.4 (Pa. Cmwlth. 2014).
We may affirm a grant of preliminary objections only when it is clear
and free from doubt that, based on the facts pled, the plaintiff will be
unable to prove facts legally sufficient to establish a right to relief. In
evaluating the legal sufficiency of the challenged pleading, we accept
as true all well-pled, material, and relevant facts alleged and every
inference that is fairly deducible therefrom.
Id. (internal citations omitted).
Defendants demur to the allegations in the Complaint by asserting both that
Licensees fail to state viable statutory and common law claims and, in the
7
alternative, that all Defendants are immune from liability to some degree.8 We
shall first address the substance of Licensees’ statutory claims and the associated
defenses, and then proceed to address Licensees’ common law claims.9
A. Claims Against Employee Does
Employees John and Jane Does were never served with the Complaint, never
entered their appearance in this matter, and never filed preliminary objections.
To the extent common pleas dismissed claims against these Employees on the
basis of POs, common pleas erred. Therefore, we reverse common pleas’
dismissal of Licensees’ claims against Employee Does in Counts IV, V, and VIII
and will not address such claims any further.
B. Claims Under the UFA
1. Confidentiality Under Section 6111(i) of the UFA
Counts I-III of Licensees’ Complaint allege that Defendants violated Section
6111(i) of the UFA by sending information pertaining to their License
applications via postcards instead of enclosing the information within envelopes.
Section 6111(i) of the UFA provides:
(i) Confidentiality.--All information provided by the potential
purchaser, transferee or applicant, including, but not limited to, the
potential purchaser, transferee or applicant’s name or identity,
8
Defendants do not argue on appeal that common pleas erred in holding that the County
was not immune to the statutory claims under the Tort Claims Act. Accordingly, we will not
address this issue herein.
9
We need not address Defendants’ POs alleging that Licensees’ claims are barred by the
applicable statute of limitations or that the Complaint lacks specificity because these issues were
not addressed by common pleas and Defendants have not raised argument on these issues on
appeal.
8
furnished by a potential purchaser or transferee under this section or
any applicant for a license to carry a firearm as provided by section
6109 shall be confidential and not subject to public disclosure. In
addition to any other sanction or penalty imposed by this chapter, any
person, licensed dealer, State or local governmental agency or
department that violates this subsection shall be liable in civil
damages in the amount of $1,000 per occurrence or three times the
actual damages incurred as a result of the violation, whichever is
greater, as well as reasonable attorney fees.
18 Pa. C.S. § 6111(i) (emphasis added).
The key phrase in the statute for purposes of the instant matter is: “[a]ll
information provided by [the License applicant] . . . shall be confidential and not
subject to public disclosure.” Id. (emphasis added). Defendants understand the
above provision as establishing two conditions precedent for a violation to occur:
that the information provided by the License applicant is (1) treated non-
confidentially; and (2) disclosed to a substantial number of people. Common
pleas, agreeing with Defendants’ construction, reasoned:
There are only two (2) sentences in the subsection. In the first, in
pertinent part, the legislature ordained that “All information provided .
. . shall be confidential and not subject to public disclosure.”
(Emphasis added.) The use of the conjunction “and” is critical and
signifies an intent by the legislature that the words and phrases used
are connected and must be read together. In this regard, the
legislature has provided that “[W]ords and phrases shall be construed
according to rules of grammar and according to their common and
approved usage; . . .”. 1 Pa. C.S.[ §] 1903. In the second sentence,
the cause of action for violating this subsection is created. In the
context of this case therefore, in our view, Plaintiffs in order to state a
claim for relief under Section 6111(i) were obligated to plead facts
indicating that a defendant publicly disclosed confidential information
provided by a Plaintiff in the course of obtaining a . . . [L]icense or a
renewal thereof.
The statute does not define the concept of “public disclosure” but the
Superior Court of Pennsylvania has given definition to the comparable
9
concept of “publicity”. In Harris v. Easton Pub[lishing] Co[mpany], .
. . 48[3] A.2d 1377 (Pa. Super. 1994), the Court said “publicity”
requires the matter is made public, by communicating it to the public
at large, or to so many persons that the matter must be regarded as
substantially certain to become one of public knowledge.
(Op. at 12-13 (emphasis in original).)
“The object of all interpretation and construction of statutes is to ascertain
and effectuate the intention of the General Assembly.” Section 1921(a) of the
Statutory Construction Act of 1972 (Statutory Construction Act), 1 Pa. C.S. §
1921(a). We must construe every statute, “if possible, to give effect to all its
provisions.” Id. In ascertaining the intent of the General Assembly, we presume
“[t]hat the General Assembly does not intend a result that is absurd, impossible of
execution or unreasonable” and intends “the entire statute to be effective and
certain.” Section 1922(1), (2) of the Statutory Construction Act, 1 Pa. C.S. §
1922(1), (2).
The purpose of the UFA “is to regulate the possession and distribution of
firearms, which are highly dangerous and are frequently used in the commission of
crimes.” Commonwealth v. Corradino, 588 A.2d 936, 940 (Pa. Super. 1991). To
effectuate the statute’s purpose, Section 6109(a) of the UFA requires individuals
seeking to carry “a firearm concealed on or about one’s person or in a vehicle
throughout this Commonwealth” to obtain a License. 18 Pa. C.S. § 6109(a).
Applicants must apply to the sheriff of the county in which the applicant resides, or
in the case of a city of the first class, to the chief of police of that city. 18 Pa. C.S.
§ 6109(b).10 In order to obtain a License, an applicant must supply the sheriff with
10
The term “sheriff” is defined by the UFA as “the sheriff of the county” or, “[i]n a city
of the first class, the chief or head of the police department.” Section 6102 of the UFA, 18 Pa.
(Continued…)
10
the reasons for obtaining the License and authorize the sheriff to inspect relevant
records. 18 Pa. C.S. § 6109(c). “The decision to issue a [License] is solely for the
sheriff, subject to certain absolute statutory prohibitions.” Pennsylvania State
Police v. McPherson, 831 A.2d 800, 803 (Pa. Cmwlth. 2003).
The General Assembly, evincing concern for the safety of both the
information provided to sheriffs and the mere fact that a license is being sought or
held, enacted a series of provisions within the UFA aimed at safeguarding
information provided by License applicants and holders. First, Section 6109(e)(5)
of the UFA addresses the safeguarding of information once an applicant is granted
a License by the sheriff. 18 Pa. C.S. § 6109(e)(5). Pursuant to Section 6109(e)(5),
the licensee is given an original License from the sheriff and a copy of the License
is forwarded to the State Police. Id. A second copy is retained by the sheriff for
seven years. Id. At the end of the seven-year period, and unless the License is
renewed, the copies of the License held by the sheriff and State Police and the
application for a License “shall . . . be destroyed.” Id.
The General Assembly’s concern for the confidentiality of a licensee’s
information is further supported by the General Assembly’s enactment of Section
6109(l) of the UFA, 18 Pa. C.S. § 6109(l), and its subparts. Section 6109(l)
addresses the Firearms License Validation System administered by the State
Police, which enables the State Police to respond to inquiries from law
enforcement regarding the validity of a License 24 hours a day, seven days a week.
18 Pa. C.S. § 6109(l)(1). Understanding that License information given to sheriffs
and, in turn, to the State Police, is confidential and would, absent this provision,
C.S. § 6102. The use of the term “sheriff” in this opinion is to be understood in accordance with
the UFA unless noted otherwise by the use of the term “county sheriff” instead of “sheriff”.
11
not be subject to disclosure to local police forces, the General Assembly enacted
Section 6109(l)(2), which provides: “Notwithstanding any other law regarding
the confidentiality of information, inquiries to the Firearms License Validation
System regarding the validity of any Pennsylvania license to carry a firearm may
only be made by law enforcement personnel acting within the scope of their
official duties.” 18 Pa. C.S. § 6109(l)(2) (emphasis added). The General
Assembly, evincing additional concern for the confidentiality of the License-
related information provided by citizens of the Commonwealth, further limited the
information subject to disclosure to out-of-state law enforcement personnel to only
“the name of the licensee, the validity of the license and [criminal history
information].” 18 Pa. C.S. § 6109(l)(4). If the General Assembly intended to
allow disclosure of License information so long as the information is not disclosed
to the public at large, Sections 6109(l)(2) and 6109(l)(4) would be superfluous
because these permitted disclosures to law enforcement personnel are not to the
public at large. In addition, the General Assembly would not have gone to such
great lengths to detail the maintenance and destruction of License-related
information in Section 6109(e)(5).
It may appear that the General Assembly’s use of both “confidential” and
“not subject to public disclosure” is duplicative. “Confidential” is defined as
“meant to be kept secret,” Black’s Law Dictionary 294 (7th ed. 1999), and a
“disclosure” is defined as “a revelation of facts.” Id. at 477. Thus, information
that is revealed to the public is not kept secret, and information that is kept secret
cannot be revealed to the public. Yet, we must, if possible, give effect to every
word of the statute. 1 Pa. C.S. § 1921(a). To do so in this instance, we must
12
presume that the General Assembly intended some nonpublic disclosure of
information; otherwise, the word public before disclosure would be unnecessary.
Nonetheless, given the extent to which the General Assembly built
confidentiality into the UFA, we cannot agree with common pleas’ construction of
the term “public disclosure” in Section 6111(i) as incorporating the requirement of
“publicity” necessary to prove the common law tort of invasion of privacy. A
cause of action for common law invasion of privacy through giving publicity to
matters concerning the private life of another is established only if private facts are
“made public, by communicating it to the public at large, or to so many persons
that the matter must be regarded as substantially certain to become one of public
knowledge,” and the disclosure is “highly offensive to a reasonable person.”
Harris, 483 A.2d at 1384. We will not graft the common law elements of this tort
onto Section 6111(i) of the UFA without clear indications that the General
Assembly intended such elements to apply.
Instead, in light of the purpose and structure of the statute, we conclude that
the General Assembly included both the term “confidential” and the phrase “not
subject to public disclosure” in Section 6111(i) so that issuing sheriffs may
disclose the information to those necessary for law enforcement or criminal justice
purposes. While the sheriff is given the sole discretionary authority under the UFA
statutory scheme to grant a License, the UFA provides roles for other entities in the
process of determining whether a License should be granted or revoked. Because
License applicants apply directly to the sheriff and the decision to issue Licenses
belongs to the sheriff alone, absent the phrase “not subject to public disclosure,”
issuing sheriffs could be required to keep the information secret from everyone,
13
including those entities given a role in the licensing process by statute,11 criminal
justice agencies, or those involved in the administration of the sheriff’s office. We
therefore interpret Section 6111(i) of the UFA to mean that “any person, licensed
dealer, State or local governmental agency or department” violates Section 6111(i)
of the UFA by revealing an “applicant’s name or identity” to a person not (1)
authorized to receive such information by statute; (2) involved in the operation or
management of the sheriff’s office; (3) representing a law enforcement or criminal
justice agency; or (4) otherwise authorized by an applicant. Disclosure to any
other person constitutes “public disclosure” for purposes of this section. Any other
interpretation of Section 6111(i) of the UFA where a License applicant’s
11
The investigation into whether a License is to be issued involves not only the sheriff,
but also the State Police. In McPherson, 831 A.2d at 803, this Court explained:
The decision to issue a license is solely for the sheriff, subject to certain absolute
statutory prohibitions. However, while the sheriff has sole discretionary
authority, under the statutory scheme established with the 1995 amendments to
the UFA, which added the provision for [State Police] reports of criminal history,
the [State Police] has a mandatory role in the investigation which the sheriff must
undertake. This scheme of investigation and reporting on the part of the [State
Police] establishes a more rigorous process as a prerequisite to obtaining a gun
license and deprives the sheriff of some of the exclusive investigatory power and
discretion he had prior to 1995.
Id. (citations omitted); see Section 6111.1 of the UFA, 18 Pa. C.S. § 6111.1 (detailing the duties
of the State Police in the investigative process). Under certain circumstances, other entities may
be involved in the licensing process as well. Pursuant to Section 6109(i.1)(1) of the UFA, if a
person is convicted of certain crimes, “[n]otwithstanding any statute to the contrary[,]” the court
“shall determine if the defendant has a [L]icense . . . issued pursuant to this section” and notify
the applicable sheriff of that conviction. 18 Pa. C.S. § 6109(i.1)(1). Further, Section
6109(i.1)(2) of the UFA also provides a role for “court[s] of common pleas, mental health review
officer[s] or county mental health and mental retardation administrator[s]” in situations where a
person is adjudicated incompetent or committed to a mental institution. 18 Pa. C.S. §
6109(i.1)(2).
14
confidentiality is not safeguarded would be inconsistent with the UFA’s purpose
and structure.
This interpretation aligns with the State Police’s regulations implementing
the UFA which also contains the terms “confidential and not subject to public
disclosure.” Section 33.103 of the State Police’s regulations provides:
(a) Information furnished under this chapter by an applicant,
purchaser, transferee or licensee, or collected by the designated
issuing authority under this chapter, is confidential and not subject
to public disclosure.
(b) Information collected or maintained under this chapter by the
State Police is confidential and not subject to public disclosure.
(c) Nonpublic disclosure by the State Police of information
collected, furnished or maintained under this chapter is restricted to:
(1) Disclosure upon request of the applicant, licensee, purchaser
or transferee, as described in sections 6109 and 6111 of the act
(relating to licenses; and sale or transfer of firearms), upon
documentary certification that the requestor is in fact the
applicant, licensee, purchaser or transferee.
(2) Disclosure upon request of a county sheriff or a criminal
justice agency, defined as any court, including the minor
judiciary, with criminal jurisdiction or any other governmental
agency, or subunit thereof, created by statute or by the State or
Federal constitutions, specifically authorized to perform as its
principal function the administration of criminal justice, and
which allocates a substantial portion of its annual budget to this
function. Criminal justice agencies include: organized State and
municipal police departments, local detention facilities, county,
regional and State correctional facilities, probation agencies,
district or prosecuting attorneys, parole boards, pardon boards and
agencies or subunits thereof, as are declared by the Attorney
General to be criminal justice agencies as determined by a review
of applicable statutes and the State and Federal Constitutions, or
both.
37 Pa. Code § 33.103(a)-(c) (emphasis added). Pursuant to these regulations,
information provided by a License applicant can only be disclosed upon request of
15
applicants themselves, to criminal justice agencies, or to a court. 37 Pa. Code §
33.103(c). We “defer to an administrative agency’s interpretation of its own
regulations unless that interpretation is unreasonable.” Department of
Environmental Protection v. North American Refractories Company, 791 A.2d
461, 464 (Pa. Cmwlth. 2002).
With the foregoing in mind, we turn to the postcard at issue. The postcard
received by Licensees provides, as follows.
16
The above postcard, which shows on its face that the intended recipient
either has a License or intends to receive one, is sent by Defendants without the
use of an envelope. Given our interpretation of the statutory provision, it is not
clear at this stage of the proceedings that sending the postcard does not breach the
confidentiality the General Assembly deliberately and extensively crafted into the
UFA. Furthermore, at this stage in the proceedings, we must accept as true
Licensees’ allegation that a similar postcard was sent when a permit had been
denied.12 Owens, 103 A.3d at 862 n.4. Accordingly, we hold that common pleas
erred by sustaining Defendants’ POs to Counts I, II, and III of the Complaint on
this basis.
2. The Renewal Notice Processing Fee
Licensees next allege, in Count VI, that Defendants violated Section 6109(h)
of the UFA, 18 Pa. C.S. § 6109(h), and breached their fiduciary duty by failing to
either send Licensees’ renewal notices or refund the portion of the prior License
application fee associated with processing renewal notices for Licensees. (Compl.
¶¶ 92-94.) The Complaint alleges that Licensees John Doe 1 and Jane Doe 1 did
12
Defendants attached an exhibit to the POs that purported to show that denial notices are
sent in a sealed envelope bearing only the return address of the Sheriff’s Office. (POs ¶ 6,
Exhibit A.) We will not consider this exhibit. When considering a demurrer, “a court cannot
consider matters collateral to the complaint but must limit itself to such matters as appear
therein.” Stilp v. Commonwealth, 910 A.2d 775, 791 (Pa. Cmwlth. 2006). While an objecting
party may supply documents that form “the foundation of the suit even where a plaintiff does not
attach such documents to its complaint,” Feldman v. Hoffman, 107 A.3d 821, 836 (Pa. Cmwlth.
2014), this rule applies to foundational and undisputed documents either discussed in, or
essential to, a complaint, and not, as here, a disputed document intended to disprove a material
allegation of the Complaint.
17
not receive renewal notices, but paid a prior License application fee that included a
renewal notice processing fee of $1.50. (Compl. ¶¶ 36, 52.) Licensees seek a
refund of $1.50 per Licensee that did not receive renewal notices for each five-year
period that renewal notices were not issued. (Compl. Prayer for Relief ¶ 9.)
Licensees also allege that the renewal notices received by those licensees that
received such notice stated: “Pistol Permit – Our Records indicate that your Permit
to Carry a Firearm will soon expire. You may pick up an application for renewal
at our Office. . . . Application is available online at www.co.franklin.pa.us.”
(Compl. ¶ 21.) Defendants demur to these claims by alleging that the UFA does
not require Defendants to refund any portion of the License application fee and
does not provide a cause of action relating to its breach. (POs ¶¶ 55-58.)
Section 6109(h) provides, in relevant part:
(1) In addition to fees described in paragraphs (2)(ii) and (3), the fee
for a license to carry a firearm is $19. This includes all of the
following:
(i) A renewal notice processing fee of $1.50.
(ii) An administrative fee of $5 under section 14(2) of the act of
July 6, 1984 (P.L. 614, No. 127), known as the Sheriff Fee Act.
....
(5) The fee is payable to the sheriff to whom the application is
submitted and is payable at the time of application for the license.
(6) Except for the administrative fee of $5 under section 14(2) of the
Sheriff Fee Act, all other fees shall be refunded if the application is
denied but shall not be refunded if a license is issued and
subsequently revoked.
(7) A person who sells or attempts to sell a license to carry a firearm
for a fee in excess of the amounts fixed under this subsection commits
a summary offense.
18 Pa. C.S. § 6109(h) (emphasis added). In enacting Section 6109(h)(1), the
General Assembly indicated its intent that the $19 License fee include a renewal
18
notice processing fee and an administrative fee, and that, except for the
administrative fee, the other fees be refunded if the application is denied but not if
the license is issued.
In this case, Licensees all applied for a License which was issued.
Therefore, under the plain terms of Section 6109(h)(6) of the UFA, there is no
provision for refund of any of the application fee. Licensees argue that in enacting
Section 6109(h)(1) of the UFA, the General Assembly required sheriffs to use
$1.50 of the $19 Licensee fee to process renewal notices. Licensees read Section
6109(h) of the UFA in conjunction with Section 6109(f)(2) of the UFA that
provides: “At least 60 days prior to the expiration of each license, the issuing
sheriff shall send to the licensee an application for renewal of license. Failure to
receive a renewal application shall not relieve a licensee from the responsibility to
renew the license.” 18 Pa. C.S. § 6109(f)(2). Notably, Section 6109(h) of the
UFA refers to “renewal notice processing,” and Section 6109(f)(2) of the UFA
refers to “an application for renewal of license.” Licensees do not comment on
the different terms used in the two provisions, but assume that the application for
renewal of license described in Section 6109(f)(2) is the renewal notice for which
the $1.50 for processing is included in the application fee.
However, even construing these provisions together would not entitle
Licensees to a refund of the $1.50. In Section 6109(f)(2), the General Assembly
addressed the consequence of a renewal application not being received. The only
consequence is that the failure does not relieve the licensee of the burden of
renewing the License. Had the General Assembly intended to permit a refund of
the $1.50, it could have done so, as it provided for a refund in Section 6109(h)(6);
however, it did not do so.
19
Licensees argue that Section 6109(f)(2) requires the Sheriff to send an
application for renewal to Licensees and that this statutory “mandate” creates a
private right of action for them. However, even if Licensees are correct that there
is a statutory “mandate,” there is no private remedy.
When a statute provides a mandate upon a government actor without a
specific remedy, “we are required to consider whether the statute implicitly creates
a private remedy.” Estate of Witthoeft v. Kiskaddon, 733 A.2d 623, 626 (Pa.
1999). The Pennsylvania Supreme Court has adopted a modified version of the
test first established by the United States Supreme Court in Cort v. Ash, 422 U.S.
66, 78 (1975) for determining whether a statute implicitly creates a private right of
action. Estate of Witthoeft, 733 A.2d at 626.13 According to the test, a court must
investigate the following questions:
[F]irst, is the plaintiff ‘one of the class for whose especial benefit the
statute was enacted,’- that is, does the statute create a . . . right in
favor of the plaintiff? Second, is there any indication of legislative
intent, explicit or implicit, either to create such a remedy or to deny
one? Third, is it consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the plaintiff?
13
The United States Supreme Court in Cort adopted a four-prong test to determine
whether an implicit cause of action is created in the statute. Our Supreme Court held in Estate of
Witthoeft that because the fourth question addresses whether “the cause of action [is] one
traditionally relegated to state law . . . so that it would be inappropriate to infer a cause of action
based solely on federal law . . . [it] is inapplicable to a state statute.” Estate of Witthoeft, 733
A.2d at 626 n.3 (quoting Cort, 422 U.S. at 78). The federal courts have moved away from the
Cort test in favor of an exclusive focus on legislative intent, see Wisniewski v. Rodale, Inc., 510
F.3d 294, 299 (3d Cir. 2007) (stating that “[a]lthough Cort has never been formally overruled,
subsequent decisions have altered it virtually beyond recognition”), yet Pennsylvania courts
continue to employ the Cort analysis. See Schappell v. Motorists Mutual Insurance Company,
934 A.2d 1184, 1189 (Pa. 2007) (applying the Cort test and stating that the test “reflects the
extraneous considerations set forth by [Section 1921 of] the Statutory Construction Act for
ascertaining legislative intent” (citing 1 Pa. C.S. § 1921(c)(1), (3), (4))).
20
Id. (quoting Cort, 422 U.S. at 78 (emphasis in original) (citations omitted)).
Even if Licensees are “of the class for whose especial benefit the statute was
enacted,” id., there is no indication of legislative intent to create a private remedy.
Licensees posit that, just as the General Assembly imposed a criminal remedy on
firearms dealers for violations of the Act, “[i]t would seem, given the construct of
[the applicable subsections of the UFA], that had the General Assembly anticipated
a sheriff not performing his/her obligation under Section 6109(f), the [General
Assembly] would have certainly provided an explicit provision for a refund.”
(Licensees’ Br. at 39.) Licensees thus admit that the General Assembly did not
intend to create a remedy because it did not anticipate that sheriffs would not
perform their obligations. We agree that there is no indication in the text of the
statute that the General Assembly intended to create a private right of action for
return of the $1.50 renewal notice processing fee in Section 6109(h)(1) of the
UFA.14 It is not our role to create a cause of action when the General Assembly
did not anticipate the need for one. Accordingly, common pleas did not err in
sustaining Defendants’ PO to Licensees’ statutory claim in Count VI.
3. Article III Challenges
Defendants argue in their supplemental PO that Licensees’ claims under
Sections 6111(i) and 6109(h) of the UFA should be dismissed because the act in
which the provisions were initially enacted, Act 5 of 1997, was enacted in violation
of the original purpose and single-subject rules of Article III, Section 1 and Article
14
Because we conclude that the General Assembly did not intend to create a private
remedy, we need not discuss whether a private remedy “‘is [] consistent with the underlying
purposes of the legislative scheme.’” Estate of Witthoeft, 733 A.2d at 626 (quoting Cort, 422
U.S. at 78).
21
III, Section 3 of the Pennsylvania Constitution, respectively (hereinafter “Article
III process”). Pa. Const. art. III, §§ 1, 3. Licensees filed New Matter in response
to Defendants’ Motion to Supplement the POs objecting to the supplemental PO on
the basis of Rule 1028(b) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P.
No. 1028(b), and asserting, inter alia, that the equitable doctrine of laches bars
Defendants’ allegation that Act 5 of 1997 was enacted in violation of Article III of
the Pennsylvania Constitution. (New Matter ¶¶ 10-13.)
The doctrine of laches bars relief when the responding party establishes: “a)
a delay arising from [complainant’s] failure to exercise due diligence; and, b)
prejudice to the [responding party] resulting from the delay.” Sprague v. Casey,
550 A.2d 184, 187 (Pa. 1988). In Stilp v. Hafer, 718 A.2d 290, 291-92 (Pa. 1998),
our Supreme Court was confronted with an Article III process challenge to a
statute enacted eight years prior to the initiation of litigation. The appellee in Stilp
alleged that the action was barred by laches. Id. The Court agreed with the
appellee and held “that the doctrine of laches may bar a challenge to a statute based
upon procedural deficiencies in its enactment” and, upon finding that the
appellants did not act diligently, which prejudiced the appellees, denied the
appellants relief on the basis of laches. Id. at 294.
Laches is not the only bar to challenges to legislation many years after its
enactment. For example, in Sernovitz v. Dershaw, 127 A.3d 783 (Pa. 2015), the
Supreme Court did not employ a laches analysis in a single-subject rule challenge
to a statute enacted 22 years prior to the initiation of the litigation in part because it
was not clear that plaintiffs had failed to act in a timely manner. Although laches
did not apply, the Court nevertheless barred the process challenge because of
public reliance on the statute, explaining:
22
[t]he amount of time that has passed since enactment is a material
consideration because the longer an act has been part of the statutory
law and relied on by the public and the government, the more
disruption to society and orderly governance is likely to follow from
its invalidation. Where, as here, such reliance has continued for more
than 20 years, a presumption naturally arises that any process
challenge is too stale to be cognizable regardless of whether the
challengers exercised reasonable diligence.
Id. at 792.
Act 5 of 1997 was enacted on April 22, 1997, almost 18 years prior to
Defendants raising their Article III process challenge in common pleas on March
25, 2015. Defendants were involved in implementing the relevant provisions of
the UFA since 1997 and did not challenge the procedure upon which these
provisions were enacted for 18 years. Regardless of whether we apply the doctrine
of laches or the Supreme Court’s holding in Sernovitz, the result is the same:
Defendants’ Article III process challenge is stale, and we will not address whether
Act 5 of 1997 violates the single-subject rule or original purpose rule of Article
III.15
4. High Public Official Immunity to Statutory Claims
Common pleas held that Sheriff Anthony is qualified for high public official
immunity and is, therefore, insulated from all liability for the complained of acts in
Licensees’ Complaint. (Op. at 7-8.) On appeal, Licensees contend that the
doctrine of high public official immunity is unconstitutional, inapplicable to the
statutory claims under the UFA, and that Defendants’ POs asserting immunity
15
Because we conclude that the issue raised in Defendants’ supplemental PO is untimely,
we need not address Licensees’ arguments that the supplemental PO should not have been
accepted by common pleas.
23
defenses should not have been considered because immunity cannot be raised by
preliminary objection.
We initially address whether common pleas erred by addressing Defendants’
immunity defenses because they were improperly raised in the POs. Rule 1030(a)
of the Pennsylvania Rules of Civil Procedure provides: “[e]xcept as provided by
subdivision [not relevant here], all affirmative defenses including . . . immunity
from suit . . . shall be pleaded in a responsive pleading under the heading “New
Matter.” Pa. R.C.P. No. 1030 (emphasis added). While the proper way to plead
the affirmative defense is in New Matter,
this Court has created limited exceptions to this rule. First, 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.
Second, where a party erroneously asserts an immunity defense in a
preliminary objection, the failure of the opposing party to file a
preliminary objection to the defective preliminary objection in the
nature of a motion to strike for lack of conformity to law waives the
procedural defect and allows the trial court to rule on the immunity
defense.
Orange Stones Company v. City of Reading, 87 A.3d 1014, 1022 (Pa. Cmwlth.
2014) (internal citations omitted) (emphasis added). Because it is clear from the
face of the Complaint that immunity is applicable, and Licensees did not file
preliminary objections to the Defendants’ POs, common pleas did not err in
addressing the POs alleging immunity defenses.16 We shall proceed to Licensees’
argument that high public official immunity is not applicable here.
16
Licensees filed an Answer to Defendants’ POs and did not object to Defendants raising
the defense of immunity as a preliminary objection in their Answer. (R.R. at 88a-98a.)
24
The Pennsylvania Supreme Court set forth the common law doctrine of high
public official immunity as follows:
[T]he doctrine of absolute privilege for high public officials, as its
name implies, is unlimited and exempts a high public official from all
civil suits for damages arising out of false defamatory statements and
even from statements or actions motivated by malice, provided the
statements are made or the actions are taken in the course of the
official’s duties or powers and within the scope of his authority, or as
it is sometimes expressed, within his jurisdiction.
The doctrine of absolute privilege rests upon the * * * idea that
conduct which otherwise would be actionable is to escape liability
because the defendant is acting in furtherance of some interest of
social importance, which is entitled to protection even at the expense
of uncompensated harm to the plaintiff’s reputation. This sweeping
immunity is not for the benefit of high public officials, but for the
benefit of the public. . . .
As such, absolute immunity for high public officials from civil
liability is the only legitimate means of removing any inhibition which
might deprive the public of the best service of its officers and
agencies. Even though the innocent may sometimes suffer irreparable
harm, it has been found to be in the public interest and therefore
sounder and wiser public policy to ‘immunize’ public officials . . . .
Lindner v. Mollan, 677 A.2d 1194, 1195-96 (Pa. 1996) (internal quotations and
citations omitted). An official is a high public official if the person is involved in
state-wide policymaking functions and who is charged with the “responsibility for
independent initiation of administrative policy regarding some sovereign function
of state government.” Yakowicz v. McDermott, 548 A.2d 1330, 1332 (Pa.
Cmwlth. 1988) (citations omitted). Although the Supreme Court in Lindner
addressed a slander and libel action, we have said that “the doctrine of high public
official immunity is applicable to actions by public officials, not just defamatory
statements,” Osiris Enterprises v. Borough of Whitehall, 877 A.2d 560, 567 (Pa.
25
Cmwlth. 2005) (emphasis in original), and courts applied the doctrine to a variety
of tort actions. See, e.g., Durham v. McElynn, 772 A.2d 68, 70 (Pa. 2001)
(holding that a district attorney is immune from tort liability for violating the
constitutional rights of a criminal defendant under the doctrine of high public
official immunity); Feldman v. Hoffman, 107 A.3d 821 (Pa. Cmwlth. 2014)
(applying the doctrine to claims of conversion and intentional infliction of
emotional distress against a coroner).
While high public officials enjoy broad immunity under common law,
Article I, Section 11 of the Pennsylvania Constitution provides the General
Assembly with the power to provide for a cause of action previously barred by
common law. Pa. Const. art I, § 11 (“Suits may be brought against the
Commonwealth in such manner, in such courts and in such cases as the Legislature
may by law direct”). In Dorsey v. Redman, 96 A.3d 332, 340 (Pa. 2014), our
Supreme Court noted that “[o]ur Constitution neither prohibits nor grants
immunity to the Commonwealth, but vests authority in the General Assembly to
determine the matters in which the government shall be immune.” Thus, even if a
public official is immune at common law from tort liability, the General Assembly
may, pursuant to its power under the Constitution, enact legislation that affords
immunity, removes immunity, or “creates a targeted form of accountability resting
outside of the scope of . . . immunity.” Dorsey, 96 A.3d at 341.
To determine if the General Assembly intended high public official
immunity to apply to Section 6111(i) of the UFA, we turn, once again, to the rules
of statutory construction. In so doing, we are aware that “[t]he best indication of
the legislature’s intent is the plain language of the statute.” Dorsey, 96 A.3d at
340. “When the words of a statute are clear and free from all ambiguity, the letter
26
of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa. C.S. §
1921(b).
The relevant portion of Section 6111(i) of the UFA provides:
In addition to any other sanction or penalty imposed by this chapter,
any person, licensed dealer, State or local governmental agency or
department that violates this subsection shall be liable in civil
damages in the amount of $1,000 per occurrence or three times the
actual damages incurred as a result of the violation, whichever is
greater, as well as reasonable attorney fees.
18 Pa. C.S. § 6111(i). In this provision, the General Assembly explicitly provided
for limited liability for violation of the subsection. Specifically, liability may be
imposed upon “any person . . . State or local governmental agency or department
that violates” confidentiality. Id. County sheriffs are not specifically mentioned in
the statute as an entity that may be liable; however, our construction of the term
“local government agency” as used in Section 6111.1 of the UFA includes county
sheriffs. Article IX, Section 4 of the Pennsylvania Constitution provides that
county sheriffs are “county officers.” Pa. Const. art. IX, § 4. Consistent with the
fact that county sheriffs are “county officers” under the Constitution, we have held
in interpreting an earlier version of the UFA that county sheriffs are local
government agencies for purposes of the UFA. Gardner v. Jenkins, 541 A.2d 406,
408 (Pa. Cmwlth. 1988) (citing 2 Pa. C.S. § 101 (defining government agency as
“[a]ny Commonwealth agency or any political subdivision or municipal or other
local authority, or any officer or agency of any such political subdivision or local
authority”) (emphasis added)). Although Gardner has been superseded by the
current version of the UFA, our interpretation that a county sheriff is a local
government agency under the UFA in that case remains unchanged.
27
In Hidden Creek, L.P. v. Lower Salford Township Authority, 129 A.3d 602,
612-13 (Pa. Cmwlth. 2015), this Court considered an argument by a municipal
authority that it was immune from liability under the Tort Claims Act for charging
customers a rate in excess of the rate permitted by statute. The appellee in that
case responded by arguing that the municipal authority was not immune due to a
provision in the Municipalities Authorities Act that permitted “‘[a]ny person
questioning the reasonableness or uniformity of a rate fixed by an authority or the
adequacy, safety and reasonableness of the authority’s services, including
extensions thereof, [to] bring suit against the authority in the court of common
pleas of the county where the project is located....’ [Section 5607(d)(9) of the
Municipalities Authorities Act,] 53 Pa. C.S. § 5607(d)(9).” Id. at 611-12. This
Court agreed with the appellee and held that the authority was not immune because
[i]t is illogical to presume that where the General Assembly set forth
stringent restrictions on tapping fees, providing extensive guidance for
the determination of those fees and permitting legal challenges
thereto, it intended that a municipal authority which violates the
restrictions and collects excessive fees, should be immune from an
action to recover those unlawfully assessed fees.
Id. at 612. We concluded that by enacting the Section 5607(d) of the
Municipalities Authorities Act, the General Assembly created “a targeted form of
accountability resting outside of the scope of governmental ... immunity.” Id. at
613 (quoting Dorsey, 96 A.3d at 341).
We reach the same conclusion here with regard to Section 6111(i) of the
UFA as this Court did in Hidden Creek for Section 5607(d) of the Municipalities
Authorities Act. The General Assembly enacted extensive confidentiality
requirements in the UFA and carefully crafted Section 6111(i) in such a way to
28
provide targeted liability against a local government agency, such as a county
sheriff, for violating the confidentiality of a License holder. Because a county
sheriff is a local government agency under the UFA, and the General Assembly
utilized its constitutional authority to create a targeted form of liability that may be
imposed upon a local agency that breaches the confidentiality of License-related
information, we conclude that Sheriff Anthony is not entitled to high public official
immunity should it be proved that he violated Section 6111(i) of the UFA.17 It was
therefore error to sustain Defendants’ PO to Count I of the Complaint alleging that
Sheriff Anthony is shielded by high public official immunity, and we reverse
common pleas in this regard.
5. Liability of the Sheriff’s Office
Licensees next argue that it was error to sustain Defendants’ demurrer to all
of the claims against the Sheriff’s Office on the basis of the long-standing legal
principle that a suit must only be brought against a legal entity capable of being
sued. (Op. at 8.) Both Licensees and Defendants cite to Monastra v. Delaware
County Sheriff’s Office, 49 A.3d 556, 557 (Pa. Cmwlth. 2012), where a claim was
filed against a sheriff’s office and police department alleging that the entities
abused their powers, trespassed, and conducted an unreasonable search and
seizure. Relying on the Pennsylvania Rules of Civil Procedure, we held in
Monastra that because the police department and sheriff’s office were not legal
17
Having concluded that high public official immunity does not apply, we do not reach
Licensees’ argument that high public official immunity is unconstitutional. See In re “B”, 394
A.2d 419, 421-22 (Pa. 1978) (“when faced with an issue raising both constitutional and non-
constitutional questions, we will make a determination on non-constitutional grounds, and avoid
the constitutional question if possible”).
29
entities separate from their political subdivisions, they were not proper parties to
the action. Id. at 558. Licensees generally acknowledge that Monastra states a
correct legal principle; however, Licensees allege in their Complaint that the
Sheriff’s Office is a local government agency and argue that the General Assembly
specifically imposed liability on local government agencies and departments in
Section 6111(i) of the UFA. (Compl. ¶ 75.) If the Sheriff’s Office is not a legal
entity, but merely a sub-unit of the County, it could not be directly sued.
Monastra, 49 A.3d at 558. At this early stage, with no facts and only Licensees’
allegation in their Complaint that the Sheriff’s Office is a local government
agency, (Compl. ¶ 75), it is premature for us to make this determination.
Accordingly, we reverse the dismissal of Count II.
6. Summary of Statutory Claims
In sum, we conclude that common pleas erred when it sustained Defendants’
POs to Counts I, II, and III of the Complaint because Licensees have stated a cause
of action against the County, the Sheriff’s Office, and Sheriff Anthony for
violating Section 6111(i) of the UFA. Common pleas also erred when it sustained
Defendants’ PO alleging that Sheriff Anthony was entitled to high public official
immunity. Finally, we conclude that because Defendants waited 18 years to raise
an Article III process challenge to Act 5 of 1997, that challenge is not reviewable.
C. Claims Under Common Law
In addition to the statutory claims discussed above, Counts V, VII, and part
of Count VI of the Complaint allege common law claims. Count V alleges that by
disclosing License-related information via postcard, Defendants “violated
30
[Licensees’] right to privacy and invaded their seclusion, solitude, and private
affairs. . . .” (Compl. ¶ 86.) Licensees allege that their right to privacy comes from
both Section 6111(i) of the UFA and from the Right to Keep and Bear Arms. 18 In
Counts VI and VII, Licensees respectively assert claims for breach of fiduciary
duties and conversion against Defendants for Defendants’ failure to refund the
$1.50 portion of the License fee specified for processing renewal notices.19
Common pleas did not address the substance of Counts V and VII, but instead held
that Defendants were immune from liability for the alleged actions pursuant to the
Tort Claims Act. (Op. at 9.) Common pleas also did not address Licensees’ claim
for breach of fiduciary duties separate from Licensees’ claim under Section
6109(h)(1) of the UFA, which it dismissed by holding that Section 6109(h)(1) does
not provide a private right of action. (Op. at 10.)
18
The Right to Keep and Bear Arms is found in both the Second Amendment to the
United States Constitution and Article I, Section 21 of the Pennsylvania Constitution. U.S.
Const. amend. II (“A well-regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed”); Pa. Const. art. 1, § 21 (“The
right of the citizens to bear arms in defen[s]e of themselves and the State shall not be
questioned”). The United States Supreme Court has carved out “zones of privacy” created by
specific constitutional guarantees, Paul v. Davis, 424 U.S. 693, 712 (1976), however, we note
that neither the United States Constitution nor the Pennsylvania Constitution have been
construed to provide an individual right to carry a firearm concealed on one’s person or in a
vehicle as are implicated by the licensing provisions of the UFA at issue here. See Caba v.
Weaknecht, 64 A.3d 39, 53 (Pa. Cmwlth. 2013) (rejecting a constitutional challenge to the
licensing provisions of Section 6109 of the UFA, 18 Pa. C.S. § 6109); Commonwealth v.
McKown, 79 A.3d 678, 690 (Pa. Super. 2013) (rejecting a constitutional challenge to the
criminal penalties associated with violating the licensing provisions of the UFA set forth in
Section 6106 of the UFA, 18 Pa. C.S. § 6106).
19
Licensees also argue in their brief that they have a claim for unjust enrichment against
Defendants because retaining fees specified for processing renewal notices without sending such
notices would lead to the Defendants receiving a benefit that would be inequitable for it to retain.
(Licensees’ Br. at 40-41.) Because this allegation was not pleaded in Licensees’ Complaint, we
cannot consider it here.
31
1. Immunity Under the Tort Claims Act
Licensees argue on appeal that common pleas erred by holding that their
invasion of privacy and conversion claims were barred by the Tort Claims Act
because both fall under a recognized exception to immunity. The Tort Claims Act
provides local agencies governmental immunity from liability for any damages
they cause to a person or property, subject to certain exceptions. 42 Pa. C.S. §
8541. The exceptions listed in Section 8542(a) of the Tort Claims Act allow for
liability if: (1) the damages would be recoverable under common law or a statute
creating a cause of action if the injury were caused by a person without immunity
under Section 8541; and (2) the injury was caused by the negligent acts of the local
agency or an employee thereof acting within the scope of his office or duties with
respect to one of the categories listed in subsection (b). 42 Pa. C.S. § 8542(a).
Licensees argue in their brief that the Tort Claims Act does not bar liability
for their invasion of privacy claim because disclosing confidential License-related
information is a crime. (Licensees’ Br. at 51-52.) Pursuant to Section 8542(a)(2)
of the Tort Claims Act, liability is not limited if the conduct at issue “constitutes a
crime, actual fraud, actual malice, or willful misconduct.” 42 Pa. C.S. §
8542(a)(2). However, Licensees did not allege that Defendants’ actions were
crimes in the Complaint. In Garrett by Garrett v. Moyston, 562 A.2d 386, 389 (Pa.
Cmwlth. 1989), we held that
[a] complaint in which a plaintiff seeks to recover from a local agency
will be barred by governmental immunity unless the complaint: 1)
alleges that the injury was caused by an act of a local agency
employee which constituted a crime, actual fraud, actual malice or
willful misconduct; or 2) sets forth a cause of action pursuant to
Section 8542 of the [Tort Claims Act, 42 Pa. C.S. § 8542].
32
Id. Licensees have not alleged that Defendants committed a crime, actual fraud,
actual malice, or willful misconduct.20 Because, under the facts alleged,
Defendants are immune from liability for Licensees’ invasion of privacy claim, we
conclude that common pleas did not err in sustaining Defendants’ POs in this
regard.
Licensees next argue that their conversion claim, in which they allege that
$1.50 of the $19 License fee they paid to the Sheriff’s Office for the purposes of
processing a renewal notice pursuant to Section 6109(h)(1) of the UFA must be
refunded, falls within an exception from immunity under the Tort Claims Act.
Licensees point to the personal property exception, which provides in relevant part:
(b) Acts which may impose liability.--The following acts by a local
agency or any of its employees may result in the imposition of
liability on a local agency:
....
20
Licensees argue in their brief that revealing confidential information is a crime under
Section 6111(g)(3.1), 18 Pa. C.S. § 6111(g)(3.1). (Licensees’ Br. at 51-52.) Section
6111(g)(3.1) provides:
Any person, licensed dealer, licensed manufacturer or licensed importer who
knowingly and intentionally obtains or furnishes information collected or
maintained pursuant to section 6109 for any purpose other than compliance with
this chapter or who knowingly or intentionally disseminates, publishes or
otherwise makes available such information to any person other than the subject
of the information commits a felony of the third degree.
Id. Even if Licensees had specifically alleged a criminal violation in the Complaint, we disagree
with Licensees’ position that Defendants could be criminally liable under this section for sending
the un-enveloped postcard to Licensees. As discussed infra, Sheriff Anthony and the County are
local government agencies under Section 6111(i) of the UFA. Unlike Section 6111(i) of the
UFA, which provides for civil liability to both participants in the firearms market and
government actors involved in the regulation thereof, Section 6111(g)(3.1) of the UFA provides
for criminal penalties for market participants only. No criminal penalties are contemplated in
Section 6111(g)(3.1) for government actors.
33
(2) Care, custody or control of personal property.--The care, custody
or control of personal property of others in the possession or control
of the local agency. The only losses for which damages shall be
recoverable under this paragraph are those property losses suffered
with respect to the personal property in the possession or control of
the local agency.
42 Pa. C.S. § 8542(b)(2) (emphasis in the original). This exception, like the others,
is to be narrowly construed. Simko v. County of Allegheny, 869 A.2d 571, 574
(Pa. Cmwlth. 2005).
The $1.50 at issue was legally transferred from Licensees to the Sheriff’s
Office years prior to the alleged conversion. The License application fee, of which
the $1.50 fee is a portion, must be paid five years, less 60 days, prior to the time
sheriffs are to send a License renewal application. See 18 Pa. C.S. § 6109(f)(1)
(providing that a License is valid for five years); 18 Pa. C.S. § 6109(f)(2)
(providing that an application for renewal of license shall be sent “60 days prior to
the expiration of each [L]icense”). Once the License application fee is paid, the
$1.50 is no longer the personal property of Licensees. Accordingly, the exception
in Section 8542(b)(2) of the Tort Claims Act does not apply and common pleas did
not err in sustaining Defendants’ POs alleging that the County is immune to
Licensees’ conversion claim.
Further, because Licensees point to no provision under Section 8542 of the
Tort Claims Act applicable to their fiduciary duty claim, and we can find none, we
also conclude that Defendants are immune from Licensees’ breach of fiduciary
duty claim and common pleas did not err in dismissing Count VI of Licensees’
Complaint.
In sum, we affirm common pleas’ Order insofar as it sustains Defendants’
POs alleging that Defendants are immune pursuant to the Tort Claims Act to
34
Licensees’ claims of invasion of privacy, breach of fiduciary duty, and conversion
in Counts V, VI, and VII of Licensees’ Complaint, respectively.
2. Leave to Amend
Licensees next argue that common pleas erred and abused its discretion by
dismissing their common law claims without providing leave to amend the
Complaint. However, Licensees did not request leave to amend the Complaint and
there is no requirement that a court sua sponte grant leave to amend. See Werner
v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996) (stating that “Appellant fails to cite
to any case law, and we can find none, requiring a court to sua sponte order or
require a party to amend his pleading”). Licensees were permitted to respond to
Defendants’ POs by filing an amended Complaint as of right or to ask for leave to
amend. See Rules 1028(c)(1) and 1033 of the Pennsylvania Rules of Civil
Procedure, Pa. R.C.P. No. 1028(c)(1) (“A party may file an amended pleading as
of course within twenty days after service of a copy of preliminary objections”);
Pa. R.C.P. No. 1033 (“A party, either by filed consent of the adverse party or by
leave of court, may at any time change the form of action, add a person as a party,
correct the name of a party, or otherwise amend the pleading”). Licensees
requested permission from the Court to file an amended Answer to Defendants’
POs, (R.R. at 299a-305a), but absent from the record is a request to file an
amended Complaint.21 Thus, we observe no error or abuse of discretion in
common pleas not granting relief that was not requested.
21
The only instance found in the record where Licensees mentioned amending the
Complaint to common pleas was in their brief in opposition to Defendants’ POs. There,
Licensees summarized the legal standards applicable to judicial disposition of preliminary
objections by stating, inter alia, that “if preliminary objections are sustained, the remedy is not
(Continued…)
35
D. Declaratory and Injunctive Relief
Finally, Licensees argue that common pleas erred when it sustained
Defendants’ PO to their requests for equitable relief in Count VIII of the
Complaint. Common pleas sustained Defendants’ POs based on its conclusion that
“[t]he factual basis for the requests is the same conduct [it] [] concluded does not
support causes of action for monetary damages,” and that Licensees did not meet
their burden to “plead facts that indicate a clear right to relief.” (Op. at 13-14.)
In their Complaint, Licensees seek the following equitable relief: (1) “an
injunction prohibiting Defendants and their employees from disseminating any
confidential [License] application information in violation of [Section 6111(i) of
the UFA]”; (2) “an injunction requiring Defendants to properly train their
employees regarding the confidentiality of [License] application information under
[Section 6111(i) of the UFA]”; (3) “an injunction requiring Defendants to properly
utilize the $1.50 for purposes of issuing renewal notifications pursuant to [Section
6109(f)(2) of the UFA]”; (4) a declaration that the policy and practice of “requiring
[License] applicants to provide references on the [License] Application and
contacting those references” violates Section 6111(i) of the UFA; and (5) “an
injunction prohibiting Defendants from enforcing the policy and practice” of
requiring License applicants to provide references and contacting said references.
(Compl. ¶¶ 101- 04.)
dismissal of the Complaint but to allow the filing of an amended complaint.” (R.R. at 201a
(citing Jones v. City of Philadelphia, 893 A.2d 837, 846 (Pa. Cmwlth. 2006)).) Stating a legal
proposition in a brief is not the same as requesting leave to amend.
36
Though ultimately, the party seeking injunctive relief must prove, with
probative evidence that the “right to relief is clear,” a remedy at law is insufficient,
and “greater injury will result from refusing rather than granting the relief
requested,” a court of common pleas should only sustain a preliminary objection in
the nature of a demurrer to a claim for injunctive relief if the court “find[s] that the
petition is clearly insufficient to establish a right to injunctive relief, and any doubt
must be resolved in overruling the demurrer.” P.J.S. v. Pennsylvania State Ethics
Commission, 669 A.2d 1105, 1113 (Pa. Cmwlth. 1996) (quoting Merchant v. State
Board of Medicine, 638 A.2d 484, 487 (Pa. Cmwlth. 1994) (citations omitted)).
First, based on the reasoning above with regard to Counts I, II, and III, we
conclude that it is not clear that Licensees will not be able to prove that Defendants
violated Section 6111(i) of the UFA and, therefore, common pleas erred when it
dismissed Licensees’ request for injunctive relief related thereto. If Licensees are
able to prove that Defendants violated Section 6111(i), an injunction prohibiting
the disclosure of confidential License-related information and requiring training of
employees may be warranted.
Second, Licensees argue that in enacting Section 6109(h) of the UFA, the
General Assembly required sheriffs to use $1.50 of the $19 Licensee fee to process
renewal notices, and based on the mandatory nature of Section 6109(f)(2) of the
UFA, Licensees have a clear right to an injunction requiring Defendants to utilize
$1.50 of the License fee for processing renewal notices. However, consistent with
our discussion above, we do not construe Sections 6109(h) or 6109(f)(2) as
imposing a mandatory duty with regard to the use of the $1.50. Accordingly, we
conclude that common pleas did not err by sustaining Defendants’ PO related to
37
Licensees’ request for injunctive relief requiring Defendants to use $1.50 of the
License application fees to issue renewal notifications.
Finally, we agree with common pleas that Defendants’ PO to Licensees’
request for declaratory and injunctive relief related to Defendants’ alleged policy
and practice of requiring License applicants to provide references and to contact
said references must be sustained. Section 6109(d) provides:
(d) Sheriff to conduct investigation.--The sheriff to whom the
application is made shall:
(1) investigate the applicant’s record of criminal conviction;
(2) investigate whether or not the applicant is under indictment
for or has ever been convicted of a crime punishable by
imprisonment exceeding one year;
(3) investigate whether the applicant’s character and reputation
are such that the applicant will not be likely to act in a manner
dangerous to public safety;
(4) investigate whether the applicant would be precluded from
receiving a license under subsection (e)(1) or section 6105(h)
(relating to persons not to possess, use, manufacture, control,
sell or transfer firearms); and
(5) conduct a criminal background, juvenile delinquency and
mental health check following the procedures set forth in
section 6111 (relating to sale or transfer of firearms), receive a
unique approval number for that inquiry and record the date and
number on the application.
18 Pa. C.S. § 6109(d). Section 6109(e) prohibits sheriffs from granting a License
to any of the following:
(i) An individual whose character and reputation is such that the
individual would be likely to act in a manner dangerous to public
safety.
(ii) An individual who has been convicted of an offense under the
act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled
Substance, Drug, Device and Cosmetic Act.
38
(iii) An individual convicted of a crime enumerated in section 6105.
(iv) An individual who, within the past ten years, has been
adjudicated delinquent for a crime enumerated in section 6105 or for
an offense under The Controlled Substance, Drug, Device and
Cosmetic Act.
(v) An individual who is not of sound mind or who has ever been
committed to a mental institution.
(vi) An individual who is addicted to or is an unlawful user of
marijuana or a stimulant, depressant or narcotic drug.
(vii) An individual who is a habitual drunkard.
(viii) An individual who is charged with or has been convicted of a
crime punishable by imprisonment for a term exceeding one year
except as provided for in section 6123 (relating to waiver of disability
or pardons).
(ix) A resident of another state who does not possess a current
license or permit or similar document to carry a firearm issued by that
state if a license is provided for by the laws of that state, as published
annually in the Federal Register by the Bureau of Alcohol, Tobacco
and Firearms of the Department of the Treasury under 18 U.S.C. §
921(a)(19) (relating to definitions).
(x) An alien who is illegally in the United States.
(xi) An individual who has been discharged from the armed forces
of the United States under dishonorable conditions.
(xii) An individual who is a fugitive from justice. This subparagraph
does not apply to an individual whose fugitive status is based upon
nonmoving or moving summary offense under Title 75 (relating to
vehicles).
(xiii) An individual who is otherwise prohibited from possessing,
using, manufacturing, controlling, purchasing, selling or transferring a
firearm as provided by section 6105.
(xiv) An individual who is prohibited from possessing or acquiring a
firearm under the statutes of the United States.
18 Pa. C.S. § 6109(e).
Defendants’ demurrer to Count VIII alleges that Defendants’ policy of
requiring references was enacted pursuant to Sheriff Anthony’s statutory duty to
investigate License applicants and that the manner in which the investigation is
conducted is within his discretion. (POs ¶ 69.) Licensees argue in response that
disclosure of a License applicant’s name to references breaches the confidentiality
39
required by Section 6111(i) of the UFA, and that Defendants may determine a
License applicant’s reputation and character without violating confidentiality by
searching court dockets to discover any civil or criminal matters brought against
the applicant. We agree with Defendants. While a sheriff could determine that an
individual falls into some of the categories listed in Section 6109(e) by searching
court dockets and criminal records, such a review would not necessarily return
information regarding whether an individual is “not of sound mind”; “addicted to
or is an unlawful user of marijuana or a stimulant, depressant or narcotic drug”;
“habitual drunkard”; or “whose character and reputation is such that the individual
would be likely to act in a manner dangerous to public safety.” 18 Pa. C.S. §
6109(e)(i), (v), (vi), (vii).
The UFA’s statutory scheme places sheriffs in the position of both
safeguarding License applicants’ confidentiality and protecting the public by
making an informed determination that an applicant is qualified to receive a
License. Sheriffs and the State Police have, in a uniform manner throughout the
Commonwealth, struck the balance by requiring License applicants to self-verify
that they meet the requirements of Section 6109(e) of the UFA and to provide two
references that are not members of the applicants’ family that can speak to an
individual’s qualifications.22 (Application for a Pennsylvania License To Carry
Firearms, Compl. Ex. B.) We see no legal infirmity in the balance struck by law
enforcement. Section 6109(c) of the UFA requires License applicants to sign a
statement on the application form that authorizes “the sheriff, or his designee” to
22
License applications are, pursuant to Section 6109(c) of the UFA, “uniform throughout
this Commonwealth and [are] on a form prescribed by the Pennsylvania State Police.” 18 Pa.
C.S. § 6109(c). Section 6109(c) requires License applicants to self-verify that they are qualified
to receive a License, but it does not require the taking of references. Id.
40
inspect “records or documents relevant to information required for this
application.” 18 Pa. C.S. § 6109(c). By providing two references and signing the
application form, an applicant authorizes the limited disclosure of their name and
the fact they are seeking a License to the two persons named as references. Thus,
because the disclosure to two references is required in order for sheriffs to conduct
an investigation and to make an informed determination regarding a License
applicant’s qualifications, and disclosure to references is authorized by applicants,
we conclude that Licensees have not sufficiently alleged their right to the
injunctive relief requested.
III. CONCLUSION
For the foregoing reasons, common pleas’ Order is: (1) reversed insofar as
it sustains Defendants’ POs to Licensees’ claim under Section 6111(i) of the UFA
against Sheriff Anthony found in Count I of the Complaint; (2) reversed insofar as
it dismisses the allegations in Count II of the Complaint asserted against the
Sheriff’s Office; (3) reversed insofar as it sustains Defendants’ PO to Licensees’
claim under Section 6111(i) against the County found in Count III of the
Complaint; (4) reversed insofar as it addresses claims asserted against Employee
Does because common pleas lacked jurisdiction over these individuals; (5)
affirmed insofar as it sustains Defendants’ POs alleging that Defendants are
immune to Licensees’ claim for invasion of privacy found in Count V of the
Complaint; (6) affirmed insofar as it sustains Defendants’ PO to Licensees’ claims
asserted in Count VI under Section 6109(h) of the UFA because the statute does
not provide a private cause of action for refund of the $1.50 renewal notice
processing fee; (7) affirmed insofar as it dismisses Licensees’ breach of fiduciary
41
duties claim asserted in Count VI; (8) affirmed insofar as it sustains Defendants’
PO to Count VII of the Complaint alleging conversion of the $1.50 renewal notice
processing fee; (9) affirmed insofar as it sustains Defendants’ POs to Count VIII of
the Complaint to the extent that it addresses Licensees’ requests for injunctive and
declaratory relief associated with Defendants’ policy and practice of requiring
applicants to provide references on License applications; (10) affirmed insofar as it
sustains Defendants’ POs to Count VIII of the Complaint to the extent that it
addresses Licensees’ request for an injunction requiring Defendants to use $1.50 of
the License fee to send renewal notices; and (11) reversed insofar as it sustains
Defendants’ POs to the remaining requests for injunctive relief found in Count
VIII of the Complaint.
________________________________
RENÉE COHN JUBELIRER, Judge
42
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Doe 1, John Doe 2, John Doe 3 :
and Jane Doe 1, :
Appellants :
:
v. : No. 1634 C.D. 2015
:
Franklin County, Franklin County :
Sheriff’s Office, Franklin County :
Sheriff Dane Anthony and Employee :
John/Jane Does :
ORDER
NOW, May 20, 2016, the Order of the Court of Common Pleas of the 39th
Judicial District (Franklin County branch) (common pleas) in the above-captioned
matter, is AFFIRMED in part and REVERSED in part, as follows:
(1) Common pleas’ Order sustaining the preliminary objections of Franklin
County, Franklin County Sheriff’s Office, and Franklin County Sheriff
Dane Anthony (together, Defendants) to Count I of John Doe 1, John
Doe 2, John Doe 3, and Jane Doe 1’s (Licensees) Complaint, is
REVERSED;
(2) Common pleas’ Order sustaining Defendants’ preliminary objections to
the claim asserted in Count II the Licensees’ Complaint against
Franklin County Sheriff’s Office, is REVERSED;
(3) Common pleas’ Order sustaining Defendants’ preliminary objections to
Count III of Licensees’ Complaint, is REVERSED;
(4) Common pleas’ Order sustaining Defendants’ preliminary objections to
all claims asserted in the Licensees’ Complaint against Employee
John/Jane Does, is REVERSED;
(5) Common pleas’ Order sustaining Defendants’ preliminary objection to
Count V of Licensees’ Complaint alleging that Defendants are immune
to Licensees’ invasion of privacy claim, is AFFIRMED;
(6) Common pleas’ Order sustaining Defendants’ preliminary objection to
Count VI of Licensees’ Complaint alleging that Licensees have not
stated a cause of action under Section 6109(h) of the Pennsylvania
Uniform Firearms Act of 1995, 18 Pa. C.S. § 6109(h), is AFFIRMED;
(7) Common pleas’ Order sustaining Defendants’ preliminary objections to
Count VI of Licensees’ Complaint alleging that Defendants are
immune to Licensees’ breach of fiduciary duties, is AFFIRMED;
(8) Common pleas’ Order sustaining Defendants’ preliminary objection
alleging that Defendants are immune to Licensees’ conversion claim in
Count VII of Licensees’ Complaint, is AFFIRMED;
(9) Common pleas’ Order sustaining Defendants’ preliminary objections to
Licensees’ request for declaratory and injunctive relief associated with
Defendants’ policy of requiring references on License to Carry Firearm
applications in Count VIII of Licensees’ Complaint, is AFFIRMED;
(10) Common pleas’ Order sustaining Defendants’ preliminary objections to
Licensees’ request in Count VIII for an injunction requiring Defendants
to use $1.50 of the License to Carry Firearms Fee to send renewal
notices, is AFFIRMED; and
(11) Common pleas’ Order sustaining Defendants’ preliminary objections to
Licensees’ remaining request for injunctive relief, is REVERSED.
The matter is remanded for further proceedings.
Jurisdiction relinquished.
________________________________
RENÉE COHN JUBELIRER, Judge