Firearm Owners Against Crime v. City of Harrisburg, 1434 C.D. 2018

• Decision Date: 12 September 2019
• Docket Number: No. 1434 C.D. 2018,1434 C.D. 2018
• Citation: 218 A.3d 497
• Parties: FIREARM OWNERS AGAINST CRIME; Kim Stolfer; Joshua First; and Howard Bullock, Appellants v. CITY OF HARRISBURG, Mayor Eric Papenfuse; and Police Chief Thomas Carter
• Court: Pennsylvania Commonwealth Court

218 A.3d 497

FIREARM OWNERS AGAINST CRIME; Kim Stolfer; Joshua First; and Howard Bullock, Appellants

v.CITY OF HARRISBURG, Mayor Eric Papenfuse; and Police Chief Thomas Carter

No. 1434 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued: April 10, 2019

Decided September 12, 2019

Reargument Denied October 23, 2019

Joshua Prince, Bechtelsville, for Appellants.

Josh Autry, Harrisburg, for Appellees.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge,¹ HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE BROBSON

In this appeal from two orders of the Court of Common Pleas of Dauphin County (trial court), we consider two issues. First, we must determine whether any one or more of the named Appellants, plaintiffs below, have standing to challenge the legality of five local ordinances of the City of Harrisburg (City) through a declaratory judgment action. If so, we next must address whether the named individual defendants, Mayor Eric Papenfuse (Mayor Papenfuse) and Police Chief Thomas Carter (Chief Carter), could, by way of preliminary objection, raise the affirmative defense of official immunity.

I. BACKGROUND

Appellants are Firearm Owners Against Crime (FOAC), Kim Stolfer (Stolfer), Joshua First (First), and Howard Bullock (Bullock) (collectively, Appellants). Appellants filed a complaint on January 16, 2015 (Complaint), seeking declaratory and injunctive relief with respect to the legality of five sections within the Codified Ordinances of Harrisburg (Code). Through 29 separate counts, 473 paragraphs, and 87 pages, Appellants claim that the challenged ordinances unconstitutionally infringe on rights conferred by the Second Amendment to the United States Constitution² and Article I, Section 21 of the Pennsylvania Constitution³ and are preempted by the Pennsylvania Uniform Firearms Act of 1995.⁴

Each of the challenged ordinance sections, or parts thereof, regulate in some fashion the use, possession, ownership, and/or transfer of firearms within the City. Code Section 3-345.1 generally makes it unlawful for unaccompanied minors to possess firearms in the City (Minors Ordinance).⁵ Code Section 3-345.2 restricts the discharge of firearms within the City to educational facilities accredited by the Pennsylvania Department of Education and approved by either the Mayor or the Chief of Police or a firing range operation by the Harrisburg Bureau of Police (Discharge Ordinance).⁶ Code Section 3.345.4 requires firearms owners to report lost or stolen firearms to law enforcement within 48 hours after discovery of the loss or theft (Lost/Stolen Ordinance).⁷ Code Section 3-355.2 prohibits the sale or transfer of firearms and ammunition during the period of emergency declaration by the Mayor and further authorizes the Mayor to prohibit the public possession of firearms during such a state of emergency (State of Emergency Ordinance).⁸ Finally, Code Section 10-301.13, inter alia , prohibits the possession, use, and discharge of firearms within City parks (Park Ordinance).⁹

The violation of any of these ordinances could lead to the issuance of a citation and summary criminal proceedings. If cited and convicted, the violator faces a fine of not less than $50 nor more than $1000 per violation, the forfeiture of personal property, and/or imprisonment for not more than 90 days for each violation. Code §§ 1-301.99, 3-345.99, 3-355.99, 3-399, 10-301.99. Because the Code provides for imprisonment upon violation of any of these ordinances, any proceeding to enforce these ordinances will be a criminal proceeding subject to the Pennsylvania Rules of Criminal Procedure. See Town of McCandless v. Bellisario , 551 Pa. 83, 709 A.2d 379, 380-81 (1998).

The named defendants, Mayor Papenfuse, Chief Carter, and the City (collectively, the City Defendants), initially removed the action from the trial court to the United States District Court for the Middle District of Pennsylvania (district court). Thereafter, the City Defendants filed a motion to dismiss the Complaint for, inter alia , lack of standing under Federal Rule of Civil Procedure 12(b)(6). The district court, by the Honorable Yvette Kane, granted the motion and dismissed the Complaint, concluding that the district court lacked subject matter jurisdiction over the suit because Appellants lacked standing under federal law¹⁰ to challenge the ordinances. Firearms Owners Against Crime v. City of Harrisburg , (M.D. Pa., No. 1:15-cv-0322, 2016 WL 1162283, filed March 24, 2016). Before remanding the matter to the trial court, the district court afforded Appellants an opportunity to amend their Complaint as to certain counts, but Appellants did not avail themselves of that opportunity. Thereafter, the district court remanded the case to the trial court in accordance with 28 U.S.C. § 1447(c) (requiring remand where district court determines it lacks subject matter jurisdiction over removed action).

Upon remand to the trial court, the City Defendants filed preliminary objections, accompanied by a notice to plead (Preliminary Objections). In their first preliminary objection, the City Defendants sought dismissal of the Complaint for lack of standing under Pennsylvania Rule of Civil Procedure No. 1028(a)(4) (legal insufficiency, or demurrer) or (a)(5) (lack of capacity to sue). In their second preliminary objection, the City Defendants sought dismissal of Appellants' constitutional challenges for failure to state a claim (demurrer), contending that the ordinances do not unconstitutionally infringe on the right to bear arms under the United States or Pennsylvania Constitutions. In their third preliminary objection, the City Defendants sought dismissal of Appellants' preemption challenges for failure to state a claim (demurrer). In their final preliminary objection, the City Defendants sought dismissal of all claims against Mayor Papenfuse and Chief Carter as individuals, arguing, inter alia , that both are immune from suit as high public officials.

In response, Appellants filed a single preliminary objection, contending that the City Defendants improperly raised the affirmative defense of official immunity by preliminary objection rather than through an answer to the Complaint under the heading "New Matter," as required by Pennsylvania Rule of Civil Procedure No. 1030. As relief, Appellants asked the trial court to strike paragraph 48 from the City Defendants' Preliminary Objections. By Order dated January 4, 2018, the trial court overruled Appellants' preliminary objection. In doing so, the trial court held that because the City Defendants argued that the immunity defense was clearly applicable on the face of the Complaint, the City Defendants could raise the defense by preliminary objection. The trial court ordered Appellants to answer the City Defendants' Preliminary Objections, which Appellants did on January 23, 2018.

By subsequent Order dated October 9, 2018, the trial court sustained the City Defendants' preliminary objection in the nature of a demurrer and dismissed the Complaint, finding that Appellants failed to plead sufficient facts to establish standing to sue. In an accompanying Memorandum Opinion, the trial court reasoned:

Plaintiffs have not pled any facts to show that they were harmed by any of the subject Ordinances. Plaintiffs do not allege that they have ever been cited or personally threatened with citation under any of the Ordinances. Rather, Plaintiffs assert potential harm that is entirely speculative, as it is based on events that may never occur. This is an improper use of the Declaratory Judgments [Act].^{[11 ]} As such, Plaintiffs have failed to allege facts sufficient to establish standing, and this Complaint should be dismissed.

(Trial Court Mem. Op. at 4 (citation omitted).)

II. DISCUSSION

On appeal to this Court, Appellants argue that the trial court erred in both its January 4, 2018 Order, overruling Appellants' preliminary objection to the City Defendants' Preliminary Objections, and its October 9, 2018 Order, dismissing the Complaint for lack of standing. We review a common pleas court's decision sustaining preliminary objections and dismissing a complaint for an abuse of discretion or error of law. Brown v. Wetzel , 179 A.3d 1161, 1164 n.2 (Pa. Cmwlth. 2018). Preliminary objections in the nature of a demurrer should only be sustained if the law says with certainty that no recovery is possible. Foster v. Peat Marwick Main & Co. , 138 Pa.Cmwlth. 147, 587 A.2d 382, 384 (1991), aff'd sub nom. Foster v. Mut. Fire, Marine & Inland Ins. Co. , 544 Pa. 387, 676 A.2d 652 (1996). Where a preliminary objection presents a question of law, our standard of review is de novo and our scope of review is plenary. Russo v. Allegheny Cty. , 125 A.3d 113, 116 n.5 (Pa. Cmwlth. 2015), aff'd , 637 Pa. 398, 150 A.3d 16 (2016) ; see Office of Governor v. Donahue , 626 Pa. 437, 98 A.3d 1223, 1228 (2014) ("The issue of standing is a question of law; thus, our standard of review is de novo and our scope of review is plenary.").

A. Standing

We begin by addressing the question of standing. The general rule is that a party seeking redress from the courts must establish standing to bring and maintain the action. Pittsburgh Palisades Park, LLC v. Cmwlth. , 585 Pa. 196, 888 A.2d 655, 659 (2005). In Pennsylvania, this standing doctrine "is a prudential, judicially[ ]created tool meant to winnow out those matters in which the litigants have no direct interest." In re Hickson , 821 A.2d at 1243. "The purpose of ... standing is to protect against improper plaintiffs." In re Application of Biester , 487 Pa. 438, 409 A.2d 848, 851 (1979).

As part of our standing analysis in this case, we also recognize the remedial nature of the Declaratory Judgments Act, as it provides: "This subchapter is declared to be remedial. Its purpose is to...