Pennsylvania State Police v. Stein

• Decision Date: 30 April 2002
• Citation: 799 A.2d 185
• Parties: PENNSYLVANIA STATE POLICE, Petitioner, v. Byron STEIN, Respondent.
• Court: Pennsylvania Commonwealth Court

799 A.2d 185

PENNSYLVANIA STATE POLICE, Petitioner, v. Byron STEIN, Respondent.

Commonwealth Court of Pennsylvania.

Argued April 8, 2002.

Decided April 30, 2002.

Reargument Denied June 25, 2002.

Joanna N. Reynolds, Harrisburg, for petitioner.

No appearance entered on behalf of respondent.

BEFORE: McGINLEY, Judge, and LEADBETTER, Judge, and McCLOSKEY, Senior Judge.

Reargument Denied En Banc June 25, 2002.

OPINION BY Judge LEADBETTER.

The Pennsylvania State Police (PSP) petition for review of the decision by the Office of Attorney General (OAG) holding that an order of the court of common pleas pursuant to Section 6105(d) of the Uniform Firearms Act (UFA), 18 Pa.C.S. § 6105(d), relieved Byron Stein of his disability from purchasing, owning or using firearms. We affirm.

Byron Stein's firearms disability under 18 Pa.C.S. § 6105 occurred as the result of his conviction in 1963 for larceny in connection with the theft of an automobile. He served a three-year term of probation and paid restitution. Thereafter, he served for two years in the armed services and was honorably discharged. He married, raised three children and has been steadily employed for over thirty years.

On May 3, 2000, the local sheriff denied Stein's application for a license to carry a firearm under 18 Pa.C.S. § 6109¹ based upon the criminal record report provided by the PSP. Stein filed a challenge with the PSP on May 23, 2000 (assigned file no. 00-05-01878). The PSP confirmed the accuracy of its criminal history record on May 24, and stated that the issuance of a license to a person convicted of a crime punishable by imprisonment for a term exceeding one year is prohibited under 18 Pa.C.S. § 6109(e)(1)(viii). Stein took no further steps regarding the license. Rather, it appears that a few months later Stein sought to purchase a gun and, on July 5, 2000, was refused based on another PSP criminal record check that revealed the old conviction. Stein filed a second challenge with the PSP (assigned file no. 00-07-02327) and, on July 6, the PSP confirmed its decision stating as its reason that regardless of any relief that may be available to Stein from State firearms disability, he is disabled from owning or possessing a firearm under Section 922 of the Federal Gun Control Act of 1968, 18 U.S.C. § 922. Thereafter, by a letter received at the Office of Attorney General on July 17, 2000, Stein appealed the PSP confirmation. The OAG assigned an ALJ to conduct a hearing.

Meanwhile, on July 28, Stein petitioned the court of common pleas pursuant to 18 Pa.C.S. § 6105(d)² for relief from firearms disability. Following a hearing, at which the Berks County District Attorney asserted no objection, common pleas granted Stein's request in an order dated October 17, 2000, which states in pertinent part:

Byron G. Stein is granted an exemption and relief under Section 6105(d) from the conviction of the enumerated offenses set forth in 6105(b) on the basis that a period of more than ten (10) years has elapsed since the most recent conviction of a crime enumerated in subsection (b). Byron G. Stein shall hereafter be permitted to purchase, own, possess, sell or transfer a firearm in spite of the conviction of the 1963 offenses.

In re Application of Byron G. Stein, (Berks County No. 00-7509, order dated October 17, 2000).

At the hearing on May 15, 2001, the ALJ admitted the exemption order by common pleas without objection from PSP and Stein testified that he seeks enforcement of common pleas' order so as "to have the right to buy, purchase or sell a firearm." Based thereon, the ALJ granted Stein's request in an order directing the PSP, in pertinent part:

to take such remedial action with respect to [Stein's] official criminal history record maintained by the Pennsylvania State Police so as to grant [Stein] the benefits of the Exemption Order referred to herein. [And] to provide [Stein] with an amended certified copy of his criminal history record information for purposes of facilitating compliance by both [Stein] and [PSP] with the provisions of the Uniform Firearms Act 18 Pa.C.S. § 6101, et seq.

Stein v. Pennsylvania State Police, (Office of Attorney General No. FAD00270, order dated June 12, 2001). The PSP filed the present appeal.

The PSP in both its brief and oral argument to this court misstates that the present appeal is from the denial of the license. Confusion as to which PSP decision was on appeal to the OAG apparently began when the PSP, in a post-appeal follow-up letter to Stein dated August 18, 2000, referenced the file number applicable to the "denial for a license to carry a firearm dated May 23[sic], 2000" (i.e., 00-05-01878) and restated the prohibition against issuance of a license to a convicted felon under Section 6109(e).³ The issuance or denial of a license under Section 6109 is a decision made by the local sheriff based not only on an investigation of the applicant's criminal record history, but also takes into consideration the applicant's character, reputation and the stated reasons for obtaining the license. See 18 Pa.C.S. § 6109. The sheriff's decision is an adjudication by a local agency that is appealable to the court of common pleas under 2 Pa.C.S. § 754. See 18 Pa.C.S. § 6114. Gardner v. Jenkins, 116 Pa.Cmwlth. 107, 541 A.2d 406 (1988). It would appear that Stein was entitled, alternatively, to appeal the accuracy of the PSP determination to the Office of Attorney General (OAG) within thirty days pursuant to 18 Pa.C.S. § 6111.1(e). Any such appeal, however, would determine only the validity of the report made and record maintained by the PSP, not the grant or denial of the license, which is a discretionary determination of the local sheriff. At all events, even if Stein intended to follow such a course with regard to the PSP's record history confirmation of May 24 (relating to the license application), the time for such an appeal had long expired by the time of Stein's July 17 appeal letter. Thus the only PSP determination within the OAG's jurisdiction was that of July 6 (relating to the purchase application) and that is the only matter now before this court. In its petition for review, the PSP assert that Stein remains under a firearms disability because the order entered by common pleas is not sufficient to relieve firearm disability under Section 922 of the Federal Act. However, in its brief to this court, the PSP shifts its argument, contending that the exemption from firearms...