U.S. Law Shield of Pa. v. Harrisburg Brief

Received 07/13/2015 Commonwealth Court of Pennsylvania
Filed 07/13/2015 Commonwealth Court of Pennsylvania

449 CD 2015
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

449 CD 2015
U.S. Law Shield of Pennsylvania et al.,
Plaintiffs-Appellees
v.
City of Harrisburg et al.,
Defendants-Appellants
Brief of Appellant
Appeal from the Order of

The Dauphin County Court of Common Pleas,
Docket No. 2015-255
Lavery Law
Frank J. Lavery, Jr., Esquire
Pennsylvania Bar No. 42370
Josh Autry, Esquire
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
(717) 233-6633 (phone)
(717) 233-7003 (fax)
flavery@laverylaw.com
jautry@laverylaw.com
Attorneys for DefendantsAppellants
Dated: July 13, 2015
TABLE OF CONTENTS
TABLE OF AUTHORITIES.......................................................................ii
I.
Jurisdiction: .................................................................................... 1
II.
Order in Question: .......................................................................... 2
III.
Scope and Standard of Review:....................................................... 3
IV.
Questions Involved: ........................................................................ 5
V.
Statement of the Case:.................................................................... 6
A. Statement of form of action with brief procedural history: .......... 6
B. Brief statement of any prior determination by any court:............ 8
C. Name of Judge whose determinations are to be reviewed: .......... 8
D. Closely condensed chronological narrative of relevant facts: ....... 8
E. Brief statement of order under review: ...................................... 10
F. Place of raising and preservation of issues:................................ 11
VI.
Summary of Argument: ................................................................ 13
VII. Argument: ..................................................................................... 15
A. The trial court erred by avoiding constitutional issues. ........... 15
B. Plaintiffs did not present evidence of actual or imminent injury.
.................................................................................................... 21
C. The injunction changed the status quo. .................................... 25
D. Plaintiffs did not present any evidence of a dire situation
requiring immediate action. ...................................................... 27
E. The General Assembly did not preempt the field of gun
regulation. .................................................................................. 33
F. Harrisburgs enjoined ordinances do not violate the Uniform
Firearms Act. ............................................................................. 38
a. Children: ................................................................................ 38
b. Parks and playgrounds: ........................................................ 39
c. Emergencies: ......................................................................... 44
VIII. Conclusion: ................................................................................... 46
Word Count ............................................................................................. 47
Certificate of Service ............................................................................... 48
TABLE OF AUTHORITIES
Cases
Anglo-Am. Ins. v. Molin, 691 A.2d 929 (Pa. 1997) .................................. 22

Application of Biester, 409 A.2d 848 (Pa. 1979) ..................................... 23
Bd. of Revision of Taxes, City of Phila. v. City of Phila., 4 A.3d 610
(Pa. 2010) .............................................................................................. 37
Boettger v. Loverro, 526 Pa. 510, 587 A.2d 712 (1991) .......................... 37
Brady v. Urbas, -- A.3d --, 2015 WL 1332593 (Pa. Mar. 25, 2015) ..... 4, 18
Brayman Const. Corp. v. Com., 13 A.3d 925 (Pa. 2011) ................... 19, 20
City Council of City of Bethlehem v. Marcincin, 515 A.2d 1320
(Pa. 1986) .............................................................................................. 40
Clarke v. House of Representatives, 957 A.2d 361

(Pa. Commw. 2008) ........................................................................ 35, 37
Com. v. Snyder, 560 A.2d 165 (Pa. Super. 1989) .................................... 37

Commonwealth v. McCann, 503 Pa. 190, 469 A.2d 126 (1983).............. 38
Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992) .............. 37
Council of Middletown Twp. v. Benham, 523 A.2d 311 (Pa. 1987) ........ 34
County of Allegheny v. Commonwealth, 544 A.2d 1305 (Pa. 1988) ......... 17
Credit Alliance v. Phila. Minit-Man Car Wash, 301 A.2d 816
(Pa. 1973) ........................................................................................ 22, 23
Dep't of Licenses & Inspections v. Weber, 147 A.2d 326 (Pa. 1959) ...... 40
Dillon v. City of Erie, 83 A.3d 467 (Pa. Commw. 2014) ............. 24, 41, 42
Fischer v. Dep't of Pub. Welfare, 439 A.2d 1172 (Pa. 1982) ................... 31
Golden Triangle News, Inc. v. Corbett, 700 A.2d 1056
(Pa.Cmwlth.1997) ................................................................................. 36
Hatfield Twp. v. Lexon Ins., 15 A.3d 547 (Pa. Commw. 2011) ............... 26
ii
Herman v. Dixon, 141 A.2d 576 (Pa. 1958) ............................................ 28

Leach v. Com., 2015 WL 3889262 (Pa. Commw. June 25, 2015) .... 6, 7, 10,
13, 17, 18, 21
Lee Publications v. Dickinson Sch. of Law, 848 A.2d 178

(Pa. Commw. 2004) ........................................................................... 3, 17
Lutz v. City of Phila., 6 A.3d 669 (Pa. Commw. 2010 .......................... 4, 17

Mars Emergency Med. Servs. v. Twp. of Adams, 740 A.2d 193
(Pa. 1999) ........................................................................................ 34, 41
Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983) ....................... 36
Milton Hershey School Trust, 807 A.2d 324 (Pa.Cmwlth.2002) ............ 26
Minich v. Cnty. of Jefferson, 869 A.2d 1141 (Pa.Commw. 2005)
(Minich I) ............................................................................ 35, 38, 44, 45
New Castle Orthopedic Assocs. v. Burns, 392 A.2d 1383 (Pa. 1978) ..... 22
Novak v. Com., 523 A.2d 318 (Pa. 1987) ................................................. 22
NRA v. City of Phila., 977 A.2d 78 (Pa. Commw. 2009) ................... 24, 36
NRA v. Pittsburgh , 999 A.2d 1256 (Pa. Commw. 2010) ........................ 25
Nutter v. Dougherty, 938 A.2d 401 (Pa. 2007) ................................. 33, 34
Oliver v. Pitt., 11 A.3d 960 (Pa. 2011) .................................................... 38
Ortiz v. Com., 681 A.2d 152 (Pa. 1996) ....................................... 34, 36, 37
Perrotto Builders, Ltd. v. Reading Sch. Dist., 108 A.3d 175
(Pa. Commw. 2015) ................................................................................. 3
Roberts v. Board of Directors of School District of City of Scranton, 462

Pa. 464, 341 A.2d 475 (1975) ............................................................. 3, 16
Sameric Corp. v. Goss, 295 A.2d 277 (Pa. 1972) ............................... 23, 28
ScheringPlough Healthcare Prods., Inc. v. Schwarz Pharma, Inc., 586
F.3d 500 (7th Cir.2009) ........................................................................ 38
iii
SEIU Healthcare v. Com., 104 A.3d 495 (Pa. 2014) ........... 3, 4, 18, 28, 29
Small v. Horn, 554 Pa. 600, 609, 722 A.2d 664 (1998) ........................... 20
Success Against All Odds v. DPW, 700 A.2d 1340 (Pa.Cmwlth.1997) ... 20
Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 573 Pa.
637, 828 A.2d 995 (2003) ............................................................. 3, 16, 19
Summit Towne Ctr. v. Shoe Show, 828 A.2d 995 (Pa. 2003) ................. 22
Valley Forge Historical Soc. v. Washington Mem'l Chapel, 426 A.2d
1123 (Pa. 1981) ..................................................................................... 32
Verardi v. Borough of Sharpsburg, 407 Pa. 246, 180 A.2d 6 (1962) ...... 20
W. Pa. Restaurant Ass'n v. Pittsburgh, 77 A.2d 616 (Pa. 1951) ............ 41
Western Pennsylvania Restaurant Ass'n v. Pittsburgh, 77 A.2d 616
(Pa. 1951) .............................................................................................. 41
Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d
269 (1975) ............................................................................................. 23
Statutes
16 P.S. 509(c) ........................................................................................ 43
17 Pa.Code 11.215 ................................................................................ 44
18 Pa.C.S. 913 ....................................................................................... 43
18 Pa.C.S. 6107 ................................................................................. 9, 45
18 Pa.C.S. 6109 ................................................................................. 9, 44
18 Pa.C.S. 6110 ................................................................................. 9, 39
18 Pa.C.S. 6120 .................................................................................. 9, 35
42 Pa.C.S. 702 ......................................................................................... 8
42 Pa.C.S. 762 ......................................................................................... 1
53 Pa.C.S 3703 ........................................................................................ 8
iv
53 Pa.C.S. 36203 ............................................................................... 9, 45

53 Pa.C.S. 37402 ................................................................................... 42
53 Pa.C.S. 37423 ............................................................................... 9, 33
53 Pa.C.S. 37435 ................................................................................... 43
71 P.S. 1403 .......................................................................................... 29
Pa.C.S. 1921 .......................................................................................... 36
Other Authorities
17 Pa.Code 11.215 ................................................................................... 9
Administrative Law Text s 22.04 (3rd ed. 1972) .................................... 23

Rules
Pa.R.A.P. 2111 ........................................................................................... 6
Pa.R.A.P. 311 ............................................................................................. 1
I.
Jurisdiction:
This Court has jurisdiction over lawsuits against local governments
pursuant to 42 Pa.C.S. 762(a)(4) and (a)(7). This is an interlocutory

appeal as of right from a decision granting a preliminary injunction.
Pa.R.A.P. 311(a)(4).
II.
Order in Question:
AND NOW this 25th day of February, 2015, upon
consideration of Plaintiff's Motion for Preliminary
Injunction;
IT IS HEREBY ORDERED and DECREED that
Plaintiffs' Motion is GRANTED in part and
DENIED in part.
The Plaintiffs' Motion is GRANTED and the City
of Harrisburg is enjoined from enforcing
ordinances 10-301.13 B, C (Parks - Hunting,
firearms and fishing); 3-355.2 A(1), (2), (3), B(8)
(Emergency measures); and 3-345.1 (Possession
of firearms by minors) as these ordinances apply to
firearms under the Uniform Firearms Act.
Plaintiffs' motion is DENIED with respect to
ordinances 3-345.4 (Lost and stolen firearms)
and 3-345.2 (Discharging weapons or firearms).
III.
Scope and Standard of Review:

The scope of review in preliminary injunction matters is plenary.
SEIU Healthcare v. Com., 104 A.3d 495, at n.7 (Pa. 2014). The standard
of review is abuse of discretion:
Our standard of review of a trial court's decision to
grant or deny a preliminary injunction is
deferential, i.e., whether the trial court abused its
discretion. Summit Towne Centre, Inc. v. Shoe
Show of Rocky Mount, Inc., 573 Pa. 637, 828 A.2d
995, 1000 (2003). We must determine whether the
evidence establishes reasonable grounds for the
decision of the trial court. Id. Only if it is plain
that no grounds exist to support the decree or that
the rule of law relied upon was palpably erroneous
or misapplied will we interfere with the decision of
the [trial court]. Roberts v. Board of Directors of
School District of City of Scranton, 462 Pa. 464,
341 A.2d 475, 478 (1975).
Perrotto Builders, Ltd. v. Reading Sch. Dist., 108 A.3d 175, 177 (Pa.
Commw. 2015).
A trial court has reasonable grounds for granting injunctive relief
where it properly finds that the prerequisites for a preliminary injunction
have been satisfied. Lee Publications v. Dickinson Sch. of Law, 848 A.2d
178, 189 (Pa. Commw. 2004) (en banc). For a preliminary injunction to
issue, every one of these prerequisites must be established; if the
petitioner fails to establish any one of them, there is no need to address
3
the others. Id. (quoting County of Allegheny v. Commonwealth, 544 A.2d

1305, 1307 (Pa. 1988) (emphasis added by this Court). See also Lutz v.
City of Phila., 6 A.3d 669, 673 (Pa. Commw. 2010).

To the degree the issue of whether the law has been misapplied
involves a purely legal question, it is reviewed de novo.
Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015). In this case, there is no
factual record, and the trial court only made legal determinations,
rendering this Courts review de novo and plenary. SEIU Healthcare,
104 A.3d at 506 (Pa. 2014) (As with any question of statutory
interpretation, our standard of review is de novo, and our scope of
review is plenary.).
IV.
Questions Involved:
Are Plaintiffs likely to prevail? No. The trial court
disagreed.
Does Act 192 violate the Pennsylvania
Constitution? Yes. The trial court did not answer
the question.
Did Plaintiffs present any evidence that
Harrisburg has ever harmed them or ever will?
No. The trial court did not answer the question.
Does the injunction against ordinances enacted in
1951, 1969, and 1990 change the status quo? Yes.
The trial court disagreed.
Does the Uniform Firearms Act preempt
Harrisburgs minors, emergency, or parks
ordinances? No. The trial court disagreed.
Does the UFA prevent regulation of the unlawful
carrying of guns? No. The trial court disagreed.
Does the Third Class City Code authorize
Harrisburg to prevent discharge, prevent
concealed carry, manage public property, take
reasonable measures during emergencies, and
take reasonable measures to protect the public in
general? Yes. The trial court did not answer the
question.
Is the open carry ban in Harrisburgs parks
consistent with the open carry ban at state parks?
Yes. The trial court disagreed.
V.
Statement of the Case:

A.
Statement of form of action with brief procedural history:
This is a civil action for declaratory and injunctive relief against

Harrisburgs gun ordinances. Plaintiffs sought a preliminary injunction
under Act 192 without presenting any evidence of standing or harm.
Plaintiffs even conceded that they lack standing to challenge the minors
ordinance absent Act 192. R.R. 145a. In opposition, Harrisburg argued
that the trial court should either 1) stay the case until this Court declares
in Leach v. Com. that Act 192 violates the Pennsylvania Constitutions
single subject and original purpose rules (which this Court did on June
25, 2015), or 2) deny the injunction because Act 192 violates the
Pennsylvania Constitution, Plaintiffs lack standing, and the ordinances
are not preempted in any event.
At the hearing, the trial court acknowledged that Plaintiffs have
to clearly have standing. R.R. 147a. Nevertheless, on February 25,
2015, the Honorable Judge Andrew H. Dowling assumed without
deciding that Act 192 is constitutional and partially granted Plaintiffs
injunction request. The trial courts opinion and order are attached to this
brief pursuant to Pa.R.A.P. 2111(b). The trial court explained, This
Court declines to decide the Acts constitutionality or stay the case. The
Commonwealth Court is the appropriate forum to resolve this
Constitutional question. 2-25-15 opinion p. 3. This Court has since
answered the question: Act 192 violates the Pennsylvania Constitution.
Leach v. Com., 2015 WL 3889262 (June 25, 2015) (en banc).

In the meantime, the trial court has enforced an unconstitutional
statute against Harrisburg. The trial court preliminarily enjoined
Harrisburgs minors, emergency, and parks ordinances, but not the
discharge and reporting ordinances. Harrisburg filed this interlocutory
appeal by right from the injunction.
Since then, before the trial court, Harrisburg filed preliminary
objections, arguing that 1) Act 192 violates the Pennsylvania
Constitution, 2) Plaintiffs lack standing, and 3) the ordinances are not
preempted in any event. At oral argument on May 27th, the trial court
again questioned its authority to rule on the constitutionality of Act 192.
Later that day, the trial court denied the preliminary objections without
opinion.
Unfortunately, the trial courts refrain from enforcing the
Pennsylvania Constitution has subjected Harrisburg to extensive
litigation under an unconstitutional statute. Seeking to protect

themselves from this unconstitutional enforcement action under Act 192,
Harrisburg and its officials filed a motion asking the Court to certify the
order denying preliminary objections for immediate appeal pursuant to
Pa.R.A.P. 1311(b) and 42 Pa.C.S. 702(b), but the trial court refused
denied the motion on June 9th. On June 25th, in 1083 CD 2015,
Harrisburg filed a petition for review from the order refusing to certify
the appeal pursuant to Pa.R.A.P. 1311(b).
B.
Brief statement of any prior determination by any court:
The trial court granted in part and denied in part Plaintiffs request
for a preliminary injunction on February 25, 2015, denied Harrisburgs
preliminary objections on May 27th, and refused to certify the preliminary
objections order for appeal by permission on June 9th.
C.
Name of Judge whose determinations are to be reviewed:
The Honorable Andrew H. Dowling

D.
Closely condensed chronological narrative of relevant facts:
In 1921, Pennsylvania authorized cities to ban unnecessary

discharge of weapons. 53 Pa.C.S 3703. In 1931, the Third Class City
Code expanded authority for cities like Harrisburg to prevent discharge
and concealed carry. 53 Pa.C.S. 37423. The Code further provides the
Mayor discretion during declared emergencies to prohibit any activities
dangerous to the public peace. 53 Pa.C.S. 36203(e)(3)(iv),(vi). In 2014,
the General Assembly re-enacted the Code.
In the meantime, Harrisburg banned unsupervised children from
carrying guns outside the home in 1951, gave the mayor discretion to
ban guns in public during declared emergencies in 1969, banned
discharge in 1971, banned guns in parks in 1991, and required the
reporting of lost or stolen guns in 2009.
At the center of this litigation, in 1974, Pennsylvania amended the
Uniform Firearms Act to prevent municipalities from regulating lawful
gun ownership. 18 Pa.C.S. 6120. The UFA also generally bans open
carrying during emergencies and unsupervised children from carrying
guns. 18 Pa.C.S. 6107, 6110.1.
A Pennsylvania Department of Conservation and Natural
Resources regulation also bans guns in parks. 17 Pa.Code 11.215. In
2008, the UFA was amended to add a statutory exception to the DCNR
regulation, allowing the concealed carry of firearms in parks. 18 Pa.C.S.
6109(m.2).
Act 192 of 2014 amended the UFA to add attorney fees for
prevailing plaintiffs, automatic standing, and actual damages. On June
25, 2015, this Court, sitting en banc, declared Act 192 unconstitutional
under the single subject and original purpose rules of the Pennsylvania
Constitution. Leach v. Com., 2015 WL 3889262 (June 25, 2015).
At the hearing, the trial court acknowledged that Plaintiffs have
to clearly have standing. R.R. 147a. Nevertheless, Plaintiffs did not
present any evidence at all to show standing or harm. Plaintiffs even
conceded that they lack standing to challenge the minors ordinance
absent Act 192. R.R. 145a. Plaintiffs simply did not show that they will
ever engage in any of the following restricted activities: carrying a
firearm in a park, carrying a firearm during an emergency, or
possessing a firearm as a child (all Plaintiffs are adults).
E.
Brief statement of order under review:
The trial court enjoined Harrisburgs gun ordinances regarding

children, emergencies, and parks, but not the discharge and reporting
ordinances.
10
F.
Place of raising and preservation of issues:
Harrisburg raised and preserved its argument that the Plaintiffs

are not likely to prevail in its answer to the motion for preliminary
objection, R.R. 66-69a, pre-hearing brief, R.R. 74-78a, 84-111a, motion
to stay, R.R. 113-19a, hearing argument, R.R. 152-64a, 168a, posthearing brief, R.R. 172-93a, and statement of matters complained of,
R.R. 196-97a.
Harrisburg raised and preserved its challenge to Act 192 in its
answer to the motion for preliminary objection, R.R. 66-67a, pre-hearing
brief, R.R. 75a, 87-106a, motion to stay, R.R. 117-19a, hearing
argument, R.R. 152a, 161-64a, 168a, post-hearing brief, R.R. 177-79a,
181-85a, 191a, notice of compliance with Rule 235, R.R. 194-95a, proof
of Rule 521 notice before this Court, and statement of matters
complained of, R.R. 197a.
Harrisburg raised and preserved its argument that Plaintiffs did
not demonstrate harm or standing in its answer to the motion for
preliminary objection, R.R. 66a-69a, pre-hearing brief, R.R. 74a, 76-78a,
84-86a, 105-106a, 110a, motion to stay, R.R. 113-16a, 118-19a, hearing
argument, R.R. 152-54a, 157-58a, 160-61a, 164a, post-hearing brief,
11
R.R. 172-74a, 177-83a, 185-86a, 190-93a, and statement of matters

Harrisburg raised and preserved its argument that a preliminary
injunction alters the status quo in its answer to the motion for
preliminary objection, R.R. 69a, pre-hearing brief, R.R. 77a, posthearing brief, R.R. 173-74a, 176-82a, 185a, 189a, 191a, 193a, and
statement of matters complained of, R.R. 196a.
Harrisburg raised and preserved its argument that the UFA does
not preempt the ordinances in its answer to the motion for preliminary
objection, R.R. 67a-68a, pre-hearing brief, R.R. 75a, 106-111a, hearing
argument, R.R. 155-61a, post-hearing brief, R.R. 173a, 175a, 186-93a,
and statement of matters complained of, R.R. 197a.
12
VI.
Summary of Argument:
Plaintiffs had to, but did not, present evidence that they will suffer
without an injunction. Plaintiffs relied on Act 192s automatic standing

provision, even conceding they lacked standing to challenge the minors
ordinance without Act 192. It is now clear that they relied to their
detriment as this Court has since declared Act 192 unconstitutional. The
trial court erred by enjoining Harrisburg based upon this clearly,
palpably and plainly unconstitutional statute. Leach v. Com., 2015 WL
3889262, at *10 (Pa. Commw. June 25, 2015) (en banc).
The trial court also erred by finding that an injunction against
ordinances enacted in 1951, 1969, and 1991 preserves the status quo.
These longstanding ordinances are the status quo and existed for decades
without controversy until Act 192 radically and unconstitutionally
expanded standing to uninjured plaintiffs. Act 192 and the trial courts
injunction changed the status quo, not Harrisburg.
Finally, the trial court erroneously found the field of gun regulation
preempted in spite of clear legislative authority in the Third Class City
Code to prevent discharge, prevent concealed carry, manage public
property, take reasonable protective measures during emergencies, and
13
take reasonable measures to protect the public in general. Harrisburgs

ordinances fall squarely within these grants of authority.
14
VII. Argument:
A.
The trial court erred by avoiding constitutional issues.1
The trial court erroneously granted a preliminary injunction

without analyzing whether Act 192upon which Plaintiffs rely for
automatic standingviolates the Pennsylvania Constitutions single
subject and original purpose rules. In doing so, the trial court did not
fulfill its obligation to decide whether the Plaintiffs are likely to
prevail. This Court has since enjoined Act 192 for violating the
Pennsylvania Constitution, leaving the Plaintiffswho presented no
evidencewith no leg to stand on. Indeed, Plaintiffs even conceded that
they lack standing to challenge the minors ordinance without Act 192.
R.R. 145a.
This Court recently summarized preliminary injunction standard:
Harrisburg raised and preserved its argument that the Plaintiffs are
not likely to prevail in its answer to the motion for preliminary
objection, R.R. 66-69a, pre-hearing brief, R.R. 74-78a, 84-111a, motion
to stay, R.R. 113-19a, hearing argument, R.R. 152-64a, 168a, posthearing brief, R.R. 172-93a, and statement of matters complained of,
R.R. 196-97a. Harrisburg raised and preserved its challenge to Act 192
in its answer to the motion for preliminary objection, R.R. 66-67a, prehearing brief, R.R. 75a, 87-106a, motion to stay, R.R. 117-19a, hearing
argument, R.R. 152a, 161-64a, 168a, post-hearing brief, R.R. 177-79a,
181-85a, 191a, notice of compliance with Rule 235, R.R. 194-95a, proof
of Rule 521 notice before this Court, and statement of matters
1
15
First, the injunction must be necessary to prevent

immediate and irreparable harm. Second, greater
injury would result from not granting the
injunction and the grant of an injunction must
not substantially harm an interested party.
Third, the injunction will restore the parties to
the status quo ante, i.e., their position before the
alleged wrongful conduct. Fourth, the moving
party must be likely to prevail on the merits.
Fifth, the injunction must be reasonably suited to
stop the harm. Finally, the moving party must
prove that the injunction would not adversely
affect the public interest.
Perrotto Builders v. Reading Sch. Dist., 108 A.3d 175, 178 (Pa. Commw.
2015).
This Court reviews the trial courts decision for an abuse of
discretion, and more specifically in this case for whether the trial court
misapplied the law:
Our standard of review of a trial court's decision to
grant or deny a preliminary injunction is
deferential, i.e., whether the trial court abused its
discretion. Summit Towne Centre, Inc. v. Shoe
Show of Rocky Mount, Inc., 573 Pa. 637, 828 A.2d
995, 1000 (2003). We must determine whether the
evidence establishes reasonable grounds for the
decision of the trial court. Id. Only if it is plain
that no grounds exist to support the decree or that
the rule of law relied upon was palpably erroneous
or misapplied will we interfere with the decision of
the [trial court]. Roberts v. Board of Directors of
School District of City of Scranton, 462 Pa. 464,
341 A.2d 475, 478 (1975).
16
Id. at 177 (emphasis added).

This Court has since held that Act 192the rule of law relied
uponclearly, palpably and plainly violates the Pennsylvania
Constitution. Leach v. Com., 2015 WL 3889262, at *10 (Pa. Commw.
June 25, 2015) (en banc). This Court thus has grounds to interfere with
the trial courts enforcement of this invalid and enjoined statute.
In addition, the trial court abused its discretion by misapplying the
law. A trial court has reasonable grounds for granting injunctive relief
where it properly finds that the prerequisites for a preliminary injunction
have been satisfied. Lee Publications v. Dickinson Sch. of Law, 848 A.2d
178, 189 (Pa. Commw. 2004) (en banc). For a preliminary injunction to
issue, every one of these prerequisites must be established; if the
petitioner fails to establish any one of them, there is no need to address
the others. Id. (quoting County of Allegheny v. Commonwealth, 544 A.2d
1305, 1307 (Pa. 1988) (emphasis added by this Court). See also Lutz v.
City of Phila., 6 A.3d 669, 673 (Pa. Commw. 2010).

Because Plaintiffs failed to present any evidence of standing, the
trial court misapplied the law by determining that they are likely to
prevail. To the degree the issue of whether the law has been misapplied
17
involves a purely legal question, it is reviewed de novo. Brady v. Urbas,

111 A.3d 1155, 1161 (Pa. 2015). In this case, there is no factual record,
and the trial court only made legal determinations, rendering this
Courts review de novo and plenary. SEIU Healthcare v. Com., 104 A.3d
495, 506 (Pa. 2014) (As with any question of statutory interpretation,
our standard of review is de novo, and our scope of review is plenary.).
This Court can correct the trial courts legal errors without any
deference to its misapplication of the law.
Specifically, the trial court refused to apply the Constitution of
this Commonwealth at all. Harrisburg argued to the trial court that Act
192 violates the single subject and original purpose rules of
Pennsylvanias Constitution.2 Unfortunately, the trial court did not
answer the constitutional question; fortunately, this Court did in Leach.
The trial courtby avoiding the constitutional questionelevated
this hastily-passed statute over the Constitution. In doing so, the trial
Legislators tacked these standing and attorney fee provisions onto a

bill about mental health records (HB 1243), which died in committee. At
the tail-end of the legislative session, legislators took that bill and
attached it verbatim to a bill about theft of copper wire (HB 80). After
changing the original purposes of both HB 80 and 1243, the final bill
has at least three subjects: firearm lawsuits, mental health records, and
theft of copper wire.
2
18
court enforced an illegal and unconstitutional statute against

Harrisburg, and, in turn, its taxpayers. This Court should step in and
correct this error.
Plaintiffs presented no evidence that the enjoined ordinances
adopted in 1951, 1969, and 1991injured them in any way. It was only
Act 192s unconstitutional expansion of standing that supported the
preliminary injunction. Plaintiffs put all of their eggs in one basket, but
that basket fell off of the cart.
The trial court erred by refusing to apply the Pennsylvania
Constitution. The Pennsylvania Supreme Court has unanimously
recognized that review of the legal issues at hand is necessary to know
whether a plaintiff is likely to prevail:
The Commonwealth Court had to assess whether
Brayman was likely to prevail on the merits in
order to determine whether a decree should issue
preliminarily enjoining PennDOT from utilizing
the challenged procurement methods. See
Summit Towne Ctr., 573 Pa. at 647, 828 A.2d at
1001. This necessitated an evaluation of whether
the Code authorized the use of that method,
which, in turn, required the court to review the
relevant statutory provisions in an attempt to
discern the scope of the powers held by procuring
agencies. See Brayman, No. 527 M.D. 2008, slip
op. at 13 (characterizing the central issue as
whether PennDot is authorized under the
19
Procurement Code to utilize the BestValue

process to award contracts....). See generally
Small v. Horn, 554 Pa. 600, 609, 722 A.2d 664,
669 (1998) (observing that state administrative
agencies are creatures of the Legislature and may
only exercise those powers that are conferred
upon them by statute). The court could not have
performed that task without applying the
relevant statutory provisions, based upon a
proper understanding of their meaning, to the
facts as developed at the hearing.
We acknowledge that there is an arguable tension
between this need to construe the statute as a
means of determining a likelihood of prevailing
on the merits, and the preliminary nature of the
hearing. However, this Court has previously
endorsed a trial courts actions in construing
legislative enactments where doing so is
necessary to determine whether a preliminary
injunction is warranted, see Verardi v. Borough
of Sharpsburg, 407 Pa. 246, 249, 180 A.2d 6, 8
(1962); cf. Success Against All Odds v. DPW, 700
A.2d 1340, 1350 (Pa.Cmwlth.1997) ([A]t this
stage of the proceedings, addressing a demurrer,
a definitive legal ruling on the interpretation of
the statutory language is now required ....), and
we see nothing improper in the Commonwealth
Court's approach here.
Brayman Const. Corp. v. Com., 13 A.3d 925, 939-40 (Pa. 2011).

In this case, the trial court subjected Harrisburg to illegal
enforcement of an unconstitutional statute by avoiding its duty to answer
constitutional questions (or at least stay this case until this Court could).
20
The trial court considered itself obligated to enforce an unconstitutional

statute, but not the Constitution itself. Such constitutional avoidance is
an abuse of its discretion.
B.
Plaintiffs did not present evidence of actual or imminent

injury.3
Plaintiffs chose not to present evidence of standing, but to rely

upon Act 192a statute since declared unconstitutional by this Court.
Plaintiffs even conceded that they lack standing to challenge the minors
ordinance absent Act 192. R.R. 145a. At the hearing, the trial court
acknowledged that Plaintiffs have to clearly have standing. R.R. 147a.
Nevertheless, the trial court enjoined the minors, emergency, and parks
ordinances without any factual record and based upon the clearly,
palpably and plainly unconstitutional Act 192. Leach v. Com., 2015 WL
3889262, at *10 (Pa. Commw. June 25, 2015) (en banc).
Particularly in this case, a preliminary injunction is a harsh
remedy. Credit Alliance v. Phila. Minit-Man Car Wash, 301 A.2d
Harrisburg raised and preserved its argument that Plaintiffs did not
demonstrate harm or standing in its answer to the motion for
3
21
816, 818 (Pa. 1973) (unanimous). Indeed, the trial court enjoined
longstanding ordinances that have not and will not affect the Plaintiffs.
In fact, it is impossible for the minors ordinance to affect Plaintiffs.
By failing to present evidence, Plaintiffs did not carry their
burden to demonstrate thatwithout an injunctionthey will suffer
immediate harm and that they are likely to prevail. Contrary to the
trial courts ruling, Plaintiffs did not prove that they need an injunction,
and their right to relief is far from clear. See Anglo-Am. Ins. v. Molin,
691 A.2d 929 (Pa. 1997) (6-0 decision, one Justice not participating)
(preliminary injunction inappropriate in declaratory action because
insureds right to relief unclear). To the contrary, Act 192 is
unconstitutional, and Plaintiffs will likely lose.
Plaintiffs did not, as they must, present evidence of a concrete
and non-speculative injury. Summit Towne Ctr. v. Shoe Show, 828 A.2d
995, 1002-03 (Pa. 2003) (citing Novak v. Com., 523 A.2d 318, 320 (Pa.
1987) (rejecting speculative considerations as insufficient to support
preliminary injunction); New Castle Orthopedic Assocs. v. Burns, 392
A.2d 1383, 1387 (Pa. 1978) (plurality) (preliminary injunction granted
was improper because record did not contain actual proof of harm);
22
Credit Alliance, 301 A.2d at 818 (unanimous) (preliminary injunction

properly denied where plaintiffs made no showing of necessity to avoid
immediate harm); Sameric Corp., 295 A.2d at 279 (rejecting speculative
considerations as insufficient to support preliminary injunction)).
These standing requirements are essential to protect defendants
from suits by uninjured plaintiffs. The Pennsylvania Supreme Court
has emphasized the importance of limiting suits to injured plaintiffs:
The purpose of the requirement of standing is to
protect against improper plaintiffs. K. Davis,
Administrative Law Text s 22.04 (3rd ed. 1972). A
plaintiff, to meet that requirement, must allege
and prove an interest in the outcome of the suit
which surpasses the common interest of all
citizens in procuring obedience to the law. Wm.
Penn Parking Garage v. City of Pittsburgh, 464
Pa. 168, 192, 346 A.2d 269, 281 (1975). To
surpass the common interest, the interest is
required to be, at least, substantial, direct, and
immediate. Wm. Penn, supra.
Application of Biester, 409 A.2d 848, 851 (Pa. 1979).

Because Plaintiffs did not present any evidence at all, they have
not shown that any of these ordinances will ever affect them.
Specifically, they did not demonstrate any likelihood that:
1) Harrisburg will declare an emergency and thatduring said
emergencythe Mayor will ban guns,
23
2) Plaintiffs will possess a guns in a City park, or

3) Plaintiffs will somehow become unsupervised children with
guns.
In the absence of any likely injury coming their way, Plaintiffs will not
suffer in the slightest by dissolution of the injunction.
By assuming without deciding that Act 192 does not violate the
Constitution, the trial court never addressed whether Plaintiffs have
ever suffered as a result of these three ordinancesall of have existed
for decades and two of which pre-date the fall of Saigon. Plaintiffs
presented no evidence that they will suffer any harm from these
ordinances that have gone without challenge or controversy for a
quarter to more than half a century. Plaintiffs essentially ask the court
system to engage in an academic exercise and issue advisory opinions.
Under this Courts precedent, Plaintiffs lack standing. NRA v.
City of Phila., 977 A.2d 78, 81-82 (Pa. Commw. 2009) (en banc) (no
standing to challenge reporting requirement); Dillon v. City of Erie, 83
A.3d 467, 475 (Pa. Commw. 2014) (en banc) (same). In NRA v.
Pittsburgh, this Court explained:

[T]he Individual Appellants have pled that they
live in areas where residential burglaries are
24
common, and one has pled that a gun of his was

stolen in the past
One of the Individual Appellants in this case
would not be fined under the ordinance unless he
had a gun stolen or lost, failed to report it, and
was prosecuted for that failure. Because the
possibility of harm is remote and speculative,
Appellants lack standing.
999 A.2d 1256, 1259 (Pa. Commw. 2010).
No Plaintiff has suffered injury at Harrisburgs hands, and most of
the activities Plaintiffs wish to engage in are illegal under state law. At
the hearing, Plaintiffs presented no evidence and simply claimed
automatic standing under Act 192, which this Court has since enjoined.
Plaintiffs must also question their lack of common law standing, which
explains why they presented no evidence of standing and waited until
after Act 192s 2015 effective date to challenge ordinances enacted in
1951, 1969, and 1991.
C.
The injunction changed the status quo.4
Plaintiffs further did not prove that this injunction against

longstanding ordinances preserves the status quo. Courts have defined
Harrisburg raised and preserved its argument that a preliminary
injunction alters the status quo in its answer to the motion for
preliminary objection, R.R. 69a, pre-hearing brief, R.R. 77a, posthearing brief, R.R. 173-74a, 176-82a, 185a, 189a, 191a, 193a, and
4
25
the term status quo ante as the last peaceable and lawful uncontested
status preceding the underlying controversy. Hatfield Twp. v. Lexon
Ins., 15 A.3d 547, 555 (Pa. Commw. 2011) (quoting In Re Milton

Hershey School Trust, 807 A.2d 324 (Pa.Cmwlth.2002)). In other words,
the relief must not change the status that existed between the parties
just before the conflict between them arose. Id. at n.6.
Harrisburg passed the ordinances at issue in 1951, 1969, and
1991. Two out of the three predate the 1974 preemption provision in the
UFA. Even the 1991 parks ordinance existed without controversy for
more than twenty years. Plaintiffs presented no evidence as to when the
conflict arose between Plaintiffs and Harrisburg, but it appears
clear that the controversy arose out of the passage of Act 192s
automatic standing and attorney fee provisions in late 2014. There is no
other explanation for why Plaintiffs waited decades to challenge the
ordinances.
Because Harrisburgs ordinances predate its controversy with the
Plaintiffs and two of the three ordinances predate the preemption
statute, the trial court changed the status quo; it did not preserve it.
The trial court misapplied the law by doing so.
26
D.
Plaintiffs did not present any evidence of a dire situation

requiring immediate action.5
Plaintiffs will likely claim on appealas they did belowthat

they only need to create a legal question to obtain an injunction. They
are wrong. The cases they cite rely upon a dire need for immediate court
action to preserve the status quo, which Plaintiffs did not demonstrate
as they presented no evidence at all.
A preliminary injunction is an extreme remedy preserved for
situations in which the plaintiff will suffer greatly if the Court lets the
defendant act while a case is pending:
Since a preliminary injunction is somewhat like a
judgment and execution before trial, it will only
issue where there is an urgent necessity to avoid
injury which cannot be compensated for by
damages and should never be awarded except
when the rights of the plaintiff are clear.
Herman v. Dixon, 141 A.2d 576, 577 (Pa. 1958) (unanimous). Plaintiffs
Harrisburg raised and preserved its argument that Plaintiffs did not
demonstrate harm or standing in its answer to the motion for
complained of, R.R. 196a. Harrisburg raised and preserved its argument
that a preliminary injunction alters the status quo in its answer to the
motion for preliminary objection, R.R. 69a, pre-hearing brief, R.R. 77a,
post-hearing brief, R.R. 173-74a, 176-82a, 185a, 189a, 191a, 193a, and
5
27
presented no evidence of such an urgent need in this case.

As a result of Plaintiffs failure, the injunction cannot stand. See
Sameric Corp. v. Goss, 295 A.2d 277, 279 (Pa. 1972) ([A]ppellee has
failed to show any urgent necessity to avoid an irreparable injury.
Indeed, it has failed to show any injury at all.). As will be explained
below, the recent SEIU case on which Plaintiffs relied before the court
below does not shy away from this principle.
Rather, the line of cases relied upon by Plaintiffs before the trial
court show an element of prudence and caution: when a defendant is
about to drop the hammer on a plaintiff, the Court should preserve the
status quo while determining complex legal issues. This case does not
fall within that line of cases because Act 192 radically and
unconstitutionally changed the legal landscape under which the
ordinances have existed unchallenged for an extensive period of time.
Plaintiffs relied below upon SEIU Healthcare v. Com., 104 A.3d
495 (Pa. 2014). In SEIU, the Pennsylvania Department of Health
sought to close twenty-six health centers in violation of 71 P.S.
1403(c)(1), which requires legislative approval to close a health center.
The Pennsylvania Supreme Court found that the plaintiffs had a clear
28
right to relief because it is clear that such action will reduce the
number of Centers and the level of public health services in direct
contravention of the plain language of Section 1403(c)(1). Id. at 508-09.
Further, the Court found that the preliminary injunction
maintained the status quo, by preventing new executive action to the
plaintiffs detriment:
[W]e can discern no harm in maintaining the
status quo which has existed since at least 1995,
in conformity with the clear legislative mandate.
[T]he grant of the requested injunctive relief
will restore the parties to their status as it
existed before the DOH attempted to close the
twenty-six Centers and eliminate the twenty-six
nurse consultant positions.
Id. at 509.
Notably absent here is any recent or imminent action by
Harrisburg. Unlike the Departments impending closure of twenty-six
health centers in SEIU, Harrisburg enacted the enjoined ordinances
anywhere from twenty-four to sixty-four years ago. Plaintiffs did not
demonstrate that the ordinances will affect them in any way, shape, or
form without the injunction.
Unlike in SEIU, the statute relied upon by Plaintiffs is new,
unconstitutional, and changed the status quo. Act 192 gave any gun
29
owner the ability to sue for attorney fees whether an ordinance has or
will ever affect them. These longstanding ordinances are the status quo;
Act 192 is new. Act 192s unprecedented expansion of litigation and
access to courts for uninjured plaintiffs flies in the face of the age-old
requirement that a plaintiff demonstrate an interest in the litigation
(other than merely having political opinions contrary to the
government).
Plaintiffs neither presented evidence that any of these ordinances
have ever affected them in the lengthy history that the ordinances have
been on the books, nor that any ordinance will ever affect them a single
time over the rest of their lives. To put it simply, cases like this are an
abundant waste of judicial and municipal resources that forces this
Court to rule on legal questions that are purely theoretical to the
plaintiffs.
Digging deeper confirms the fly in Plaintiffs ointment. SEIU
relies on Fischer v. DPW, 439 A.2d 1172 (Pa. 1982). In Fischer, the
Court granted a preliminary injunction to prevent enforcement of a
(then) new statute that restricted public assistance for abortion while
the case proceeded to determine whether the statute violated the
30
Pennsylvania Constitution. Time was of the essence for the plaintiffs,

impoverished women with pregnancy complications, and a refusal of
the injunction would have endangered the health of indigent women
who required medically necessary abortions Id. at 1173-74. See also
id. at 1174 & n.4.

The women had zero to nine months to obtain relief. Further,
delayed relief could have increased their medical complications and
endangered the women. For some, pregnancy, not birth, endangered
their lives, rendering each day without relief possibly their last. Id. at
n.4.
The Supreme Court noted, There is also no question that the
injunction did no more than to restore the status quo as it existed before
the challenged act. Id. at 1174. In this case, however, Act 192 changed
the status quo, permitting plaintiffs to sue without injury. Unlike in
Fischer, the trial court changed the status quo by enjoining ordinances
that have gone without challenge or controversy for a quarter to more
than half a century.
The Supreme Court in Fischer, in turn, relied upon Valley Forge
Historical Soc. v. Washington Mem'l Chapel, 426 A.2d 1123 (Pa. 1981).
31
In Valley Forge, the Valley Forge Historical Society obtained a

preliminary injunction to prevent eviction. The Court found that
eviction could harm or risk loss of historical artifacts kept by the Society
in their on-site museum. Id. at 1128.
The Court recognized the public's interest to view artifacts which
are part of its historical heritage, particularly in their intended and
natural setting Valley Forge. Id. at 1129. While the Supreme Court
recognized that speculative considerations cannot form the basis for
issuing a preliminary injunction, the Court found that the status quo
sought to be altered has continued undisturbed for more than sixty
years Id.
This Court can see a theme in this line of cases. In each case, the
injunction preserved the state of things. In each case, the plaintiffs
demonstrate an imminent and significant harm if the injunction did not
issue. In each case, the defendants did not argue that an injunction or
the statutory basis for an injunction would violate the Constitution.
This case stands in stark contrast. If the Plaintiffs have any
interest at all in this litigation, it is purely speculative. The Plaintiffs
did not present even a scintilla of evidence that they have been or will
32
be affected by any of these longstanding ordinances. There can be little

doubt that these ordinances are the status quo; Act 192 with its radical
and unconstitutional expansion of standing is the change at issue.
E.
The General Assembly did not preempt the field of gun

regulation.6
The trial court misapplied the law by holding that Harrisburg

lacks authority to regulate gun possession in any way. Indeed, the
Third Class City Code explicitly authorizes Harrisburg to ban discharge
and concealed carry. 53 Pa.C.S. 37423.
There are three types of preemption: express, conflict, and field.
Nutter v. Dougherty, 938 A.2d 401, 414 (Pa. 2007). As just mentioned,
the Third Class City Code expressly grants authority to ban discharge
and concealed carry. 53 Pa.C.S. 37423. Given this explicit permission
to regulate guns, the General Assembly has not preempted the entire
field of gun regulationat least not for third class cities.
Total preemption is the exception and not the rule. Council of
Middletown Twp. v. Benham, 523 A.2d 311, 315 (Pa. 1987). Ortiz v.
Harrisburg raised and preserved its argument that the UFA does not
preempt the ordinances in its answer to the motion for preliminary
6
33
Com., 681 A.2d 152 (Pa. 1996), which found an assault weapon ban
preempted, is not to the contrary. Harrisburg makes two additional
arguments inapplicable to and not raised in Ortiz: 1) the Third Class
City Code authorizes its ordinances, and 2) the UFA does not preempt
regulation of unlawful gun possession.
In 2007, the Pennsylvania Supreme Court noted that it has found
field preemption only in the areas of alcoholic beverages, anthracite
strip mining, and banking. Nutter, 938 A.2d at 414 (citing Mars
Emergency Med. Servs. v. Twp. of Adams, 740 A.2d 193, 195 (Pa.
1999)). The Supreme Court was obviously aware of Ortiz. It is hard to
believe that the Supreme Court would have left gun regulation off of the
short list if the Court considered the field preempted.
Looking to its text, the UFA limits regulation of lawful possession,
not the entire field:
No county, municipality or township may in any
manner regulate the lawful ownership,
possession, transfer or transportation of firearms,
ammunition or ammunition components when
carried or transported for purposes not prohibited
by the laws of this Commonwealth.
18 Pa.C.S. 6120(a) (emphasis added).
Admittedly, this Court has been inconsistent in its application of
34
the UFA since Ortiz. In Minich v. Cnty. of Jefferson, 869 A.2d 1141
(Pa.Commw. 2005) (en banc) (5-0) (Minich I), this Court agreed with
Harrisburgs position herein that the UFA only prohibits regulations of
lawful gun possession:
[T]he County may not enact an ordinance which
regulates firearm possession if the ordinance
would make the otherwise lawful possession of a
firearm unlawful. Thus, if the County's ordinance
pertains only to the unlawful possession of
firearms, i.e., possession prohibited by the laws
of this Commonwealth, then section 6120 (a) of
the Crimes Code does not preempt the County's
ordinance.
Id. at 1143 (emphasis in original). This Court reiterated that holding in

Minich v. Cnty. of Jefferson, 919 A.2d 356, 361 (Pa. Commw. 2007) (en
banc) (unanimous) (Minich II). However, this Court held the opposite in
Clarke v. House of Representatives, 957 A.2d 361, 364 (Pa. Commw.
2008) (en banc), and Philadelphia, 977 A.2d at 82 (en banc).
Judge Smith-Ribner, concurring and dissenting in both Clarke
and Philadelphia, found that Ortiz did not squarely address the
question of whether a municipality can regulate unlawful gun
possession. Clarke, 957 A.2d at 366-67. Judge Smith-Ribner noted that
the text of the UFA does not support field preemption and the title of
35
the statute is limitation on regulations, not prohibition or elimination.
Id. at 366-70. Judge Smith-Ribner cited the legislative history where

the bills sponsor declared that it would not affect Philadelphias ban on
the acquisition of guns by children and drunkards in any way, shape or
form. Id. at 369. See also Phila., 977 A.2d at 83-85 (concurring and
dissenting).
Because the statutory text does not clearly preempt the field, this
Court may consider the legislative history:
The Statutory Construction Act specifically
authorizes consideration of legislative history
when construction of a statute, beyond its plain
language, is required. See 1 Pa.C.S. 1921(c)(7).
Although lawmakers' statements during
debate are generally not dispositive of legislative
intent, especially where they serve to challenge
the plain language of the statute as enacted, see,
e.g., Martin v. Soblotney, 502 Pa. 418, 466 A.2d
1022, 1025 n. 5 (1983); Golden Triangle News,
Inc. v. Corbett, 700 A.2d 1056, 1064
(Pa.Cmwlth.1997) (legislative history cannot act
as a rationale for contradicting the plain meaning
of the statute itself), legislative history is
nonetheless instructive to our analysis and
persuasive evidence ... [of] the General
Assembly's intent. DeLellis, 660 A.2d at 31 n. 11;
see Commonwealth v. Wilson, 529 Pa. 268, 602
A.2d 1290, 1294 n. 4 (1992) (floor debates not
dispositive but informative); Boettger v. Loverro,
526 Pa. 510, 587 A.2d 712, 718 n. 16 (1991). Here,
36
the legislative history is persuasive and serves to

confirm our reading of the statute's language.
Bd. of Revision of Taxes, City of Phila. v. City of Phila., 4 A.3d 610, 625
n. 10 (Pa. 2010) (unanimous) (emphasis in original). See also Com. v.
Snyder, 560 A.2d 165, 174 n. 9 (Pa. Super. 1989) (where the statements
made on the floor are made only for purposes of clarification, they may
be considered). In this case, the legislative history supports and
substantiates Harrisburgs interpretation of the UFA.
In addition, Harrisburg makes an additional argument not at
issue in Ortiz or Clarke: the Third Class City Code explicitly prevents
field preemption by granting Harrisburg authority to regulate guns.
These provisions make clear that the General Assembly did not
preempt the fieldat least not for third class cities.
The language of Ortiz and Clarke does not address or reject
Harrisburgs argument. The Supreme Court has cautioned against
reading precedent too broadly, even when that precedent is couched in
sweeping language:
[T]he fact that some decisions of the Court apply
loose language cannot mean that the Court must
always do so going forward, as this would
institutionalize an untenable slippage in the law.
Accord ScheringPlough Healthcare Prods., Inc.

37
v. Schwarz Pharma, Inc., 586 F.3d 500, 512 (7th

Cir.2009) (explaining that uncritical
generalization is a path to error and that [o]ne
form of uncritical generalization ... is reading
general language literally.). Indeed, various
principles governing judicial review protect
against such slippage, including the axiom that
the holding of a judicial decision is to be read
against its facts. See, e.g., Commonwealth v.
McCann, 503 Pa. 190, 195, 469 A.2d 126, 128
(1983).
Oliver v. Pitt., 11 A.3d 960, 966 (Pa. 2011).

Significantly, this Court has never overruled Minich I and II,
which upheld county courthouse gun bans. As explained below, this
Court cited the County Codes general power to regulate courthouses.
Likewise, third class cities have similar grants of authority, and, under
Minich I and II, these grants of authority prevent field preemption.

F.
Harrisburgs enjoined ordinances do not violate the Uniform

Firearms Act.7
a.
Children:
As explained above, Plaintiffs are not children and obviously lack

standing to challenge this ordinance. In any event, the UFA only
Harrisburg raised and preserved its argument that the UFA does not
preempt the ordinances in its answer to the motion for preliminary
7
38
preempts ordinances that regulate the lawful possession of firearmsat

least as to third class cities, and the UFA also prohibits unsupervised
children from having guns in public. 18 Pa.C.S. 6110.1.
The trial court disagreed because of the UFAs hunting exception.
This Court should reverse because 1) Plaintiffs are not children and,
thus, lack standing, 2) Plaintiffs presented no evidence that Harrisburg
enforces the ordinance in a way to restrict hunting, and 3) Harrisburgs
statutory authority to prohibit discharge under the Third Class City
Code gives it authority to prohibit hunting as well and negate the
exception.
b.
Parks and playgrounds:
As explained above, the Third Class City Code permits Harrisburg

to prevent discharge and prevent the carrying of concealed deadly
weapons. 53 Pa.C.S. 37423. No court has ever held that the UFA
renders the Third Class City Code a dead letter. The only question is
whether Harrisburg can also ban open carry in parks and playgrounds.
The open carry ban in Harrisburgs parks and playgrounds is justified
by its authority to regulate its property and is consistent with the
DCNR open carry ban in state parks.
39
This Court should recognize that because Harrisburgs limited

restriction furthers the salutary scope of the [Uniform Firearms] Act,
the ordinance is welcomed as an ally, bringing reinforcements into the
field of attainment of the statute's objectives. Dep't of Licenses &
Inspections v. Weber, 147 A.2d 326, 327 (Pa. 1959). Where an

ordinance conflicts with a statute, the will of the municipality as
expressed through an ordinance will be respected unless the conflict
between the statute and the ordinance is irreconcilable. City Council of
City of Bethlehem v. Marcincin, 515 A.2d 1320, 1326 (Pa. 1986).

In addition, where the legislature has assumed to regulate a
given course of conduct by prohibitory enactments, a municipal
corporation with subordinate power to act in the matter may make such
additional regulations in aid and furtherance of the purpose of the
general law as may seem appropriate to the necessities of the particular
locality and which are not in themselves unreasonable. Mars, 740 A.2d
at 195 (Pa. 1999) (quoting W. Pa. Restaurant Ass'n v. Pittsburgh, 77
A.2d 616, 619-20 (Pa. 1951)).
Dillon provides support even though this Court held that the UFA
preempted Eries park ban. This Court noted two valid issues that Erie
40
did not raise:

Not raised by the City is Section 3710 of the
Third Class City Code, Act of June 23, 1931, P.L.
932, as amended, 53 P.S. 38710, which provides,
in pertinent part, that the City shall at all times
be invested with the power and authority to adopt
suitable rules and regulations concerning the use
and occupation of [its] parks and playgrounds by
the public generally.... It could be argued that
the City may be empowered under that grant of
power from the State to regulate the possession of
firearms in its parks pursuant to its proprietary
power to control conduct that takes place on its
property rather than through an ordinance of
general application enacted pursuant to its
general police powers. Similarly, Section 11.215
of the regulations of the Commonwealth's
Department of Conservation and Natural
Resources, 17 Pa.Code 11.215, generally
prohibits [p]ossessing an uncased device, or
uncasing a device, including a firearm, ... that is
capable of discharging or propelling a projectile
... in state parks, subject to a number of
enumerated exceptions.
83 A.3d at n.9.
As this Court noted in Dillon, third class cities have proprietary
authority to manage their property and the open carry ban is consistent
with, not irreconcilable with, the ban on open carry in state parks. To
hold otherwise would mean that Harrisburg must permit a person to
openly carry a loaded shotgun onto its parks and playgrounds and to
41
the Fourth of July celebration. Harrisburg, like any property owner, has
the right and authority to prevent the pandemonium that the trial
courts injunction risks. There can be little doubt that the restriction on
open carry serves a wise and salutary purpose.
Harrisburgs statutory authority to regulate its property has at
least two sources:
In exercising its discretion to make decisions that
further the public interest under terms it deems
most beneficial to the city, council shall have the
power and authority, subject to any restrictions,
limitations or exceptions as set forth in this act,
to do any of the following:
(1) manage real and personal property.
53 Pa.C.S. 37402.1(a).
The council of each city shall have power to enact,
make, adopt, alter, modify, repeal and enforce in
accordance with this act ordinances, resolutions,
rules and regulations, not inconsistent with or
restrained by the Constitution of Pennsylvania
and laws of this Commonwealth, that are either
of the following:
(1) necessary for the proper management, care
and control of the city and the maintenance of
the peace, good government, safety and welfare of
the city
53 Pa.C.S. 37435.
The Minich II Court upheld courthouse gun bans due to similar
42
grants of authority:
Section 509(a) of the County Code allows county
commissioners to adopt ordinances regulating the
affairs of a county. Section 509(c) of the County
Code allows county commissioners to prescribe
fines and penalties for violations of a public
safety ordinance. 16 P.S. 509(c). Here, the
County ordinance regulates the affairs of the
County, specifically the safety of members of the
public who enter the Jefferson County Court
House.
Moreover, section 913(e) of the Crimes Code
requires that each county make lockers available
at a building containing a court facility for the
temporary checking of firearms by persons legally
carrying the firearms. 18 Pa.C.S. 913(e). The
County ordinance simply implements this
provision.
919 A.2d at 361. The Third Class City Code explicitly authorizes
Harrisburgs concealed carry ban. The open carry ban manages city
property, and cares for and maintains peace, safety, and welfare.
As mentioned above, state parks likewise ban open carry. 17
Pa.Code 11.215. Although in 2008 the General Assembly created a
statutory exception for concealed carry in state parks, 18 Pa.C.S.
6109(m.2), the Third Class City Code authorizes Harrisburg to ban
concealed carry and thus negate the exception. Because this Court has
not overruled Minich I and IIs upholding of county courthouse gun
43
bans under similar grants of municipal authority, third class cities

likewise have such authority to regulate their property.
c.
Emergencies:
As explained above, Plaintiffs did not present any evidence that a

declared emergency is imminent or thatduring said emergencythe
Mayor will ban public possession of guns. In fact, Plaintiffs presented
no evidence that a Mayor has ever exercised discretion under this 1969
ordinance to ban public possession of guns. Plaintiffs claims are
speculative at best and cannot support an injunction.
In any event, the emergency ordinance is not preempted. Because
the Third Class City Code authorizes Harrisburg to prevent discharge
and concealed carry, the only question is whether Harrisburg can ban
open carry during emergencies. The UFA also bans open carry during
declared emergencies. 18 Pa.C.S. 6107. Accordingly, Harrisburgs ban
on open carry only bans unlawful conduct and thus is not preempted.
Moreover, the open carry ban finds support in Harrisburgs
authority under the Third Class City Code. During emergencies, the
Code specifically allows the Mayor to prohibit any other activities as
the mayor reasonably believes would cause a clear and present danger
44
to the preservation of life, health, property or the public peace. 53

Pa.C.S. 36203(e)(3)(iv),(vi). The emergency ordinance implements this
grant of authority, allowing the Mayor to determine whether open carry
during an emergency endangers the public.
The emergency ordinance is like the county courthouse gun ban in
Minich I and II, which this Courtas explained aboveheld en banc

was not preempted due to 1) the County Code authority to regulate
safety and county affairs, and 2) the statutory courthouse gun ban.
Under either rationale, the open carry ban is not preempted.
Harrisburg has statutory authority to take reasonable measures to
protect the public during emergencies, and state law bans also open
carry during emergencies.
In ruling on the preliminary injunction, the trial court found that
the UFA preempts this ordinance based upon the UFAs concealed carry
exception. But Harrisburgs explicit authorization to ban concealed
carry gives it authority to negate the exception. Accordingly, the trial
court erred, and this Court should reverse.
45
VIII. Conclusion:
This Court should reverse the trial court and remand with direction
to dissolve the injunction.
Respectfully submitted,
Lavery Law
s/ Josh Autry
Frank J. Lavery, Jr., Esquire
Josh Autry, Esquire
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
(717) 233-6633 (phone)
(717) 233-7003 (fax)
flavery@laverylaw.com
jautry@laverylaw.com
Attorneys for AppellantsDefendants
46
Word Count
I certify that this brief complies with the word count limit as it
does not exceed 14,000 words. This certificate is based on the word
count of the word processing system used to prepare the brief.
s/ Josh Autry
47
Feb.
No.
25. 2 0 1 5 1 \ : ? 7 A M
U.S. LAW SHIELD OF PENNSYLVANIA, LLC,

EX REL. TODD HOOVER;
JUSTIN I. MCSHANE, AN .INDIVIDUAL,
Plaintiffs
3496
P. 2/16
: IN THE COURT OF COMMON PLEAS

: DAUPHIN COUNTY, PENNSYLVANIA
: NO. 2015 CV 00255 EQ
ClTY OF HARRISBURG;
MAYOR ERIC PAPENFUSE;
WANDA WILLIAMS,
SANDRA REID,
BRAD KOPLINSKI,
BEN ALATT,
JEFF BALTIMORE,
SUSAN WILSON,
SHAMAINE DANIELS,
HARRISBURG CITY COUNCIL MEMBERS;
AND THOMAS CARTER, ClTY OF HARRISBURG
CHIEF OF POLICE,
Defendants
: CIVIL ACTION LAW
OPINION
Plaintiffs have filed a Motion for Preliminary Injunction seeking t o enjoin the City of
Harrisburg e t 01. f r o m enforcingfive city ordinances dealing in one manner or another with
firearms. The Plaintiffs assert thesecity ordinances violate the Uniform Firearms Act (18 Pa.C.S.A.
!j6120) arguing t'hat state law preempts the city ordinances with respect t o firearms. The issues
have been briefed and a hearingwas held February 6,2015.
I,
,
~
I'
F e b . 25. 2 0 1 5 1 1 : 2 8 A M
No
3496
P. 3 / i 6
The Uniform Firearms Actprovides:
(a) General Ruie. -No county, municipality or township may in any manner regulate the
lawful ownel-ship, possession, transfer or transportation of firearms, ammunition, or
arnmunjtion components when carried or transported for purposes not prohibited by
the laws of this Commonwealth.
The Uniform Firearms Act was amended by Act 192 of 2014 to add, among other
provisions:
(a.2) Relief. - A person adversely affected by an ordinance, a resolution, a regulation, a
rule, practice or any other action promulgated or enforced by a county, municipality or
township prohibited undersubsection(a) or 53 Pa.C.5. 2962(g) (reiating t o limitation on
municipal powers) may seek declaratory or injunctive relief and actual damages in an
appropriate court.
(b) Definitions
"Persons adversely affected," Any of the following:
(1)A resident of this Commonwealth who may legally possess a firearm under federal
and state law.
(2) A person who otherwise has standing under the laws of this Commonwealth t o
bring an action under subsection (a.2).
(3) A membership organ~zation,in which a ~nemberis a person described under
paragraph (1)or (2).
Act 192 of 2014.
Articie 1, Section 23 of the Constitution of Pennsylvania provides: "The right of the citizens
t o bear arms in defense of themselves and the State shall not be questioned." "Because the
ownership of firearms is constitutionally protected, its regulationsare a matter of statewide
concern." Ortiz v. Commonwealth of Pennsylvania, 681 A.2d 152,156 (Pa. 1996). The regulation
;,
of firearms is a matter of concern in all of Pennsylvania and the General Assembly, not
municipalities, is the proper forum for the imposition of such regulation.
Id.
The five city ordinances challenged are: Parks Hunting, firearms and fishing (5 10-301.13)
8, C [hereinafter, referred to as "Park ~rdinance"]'; Emergency measures
(9 3-355.2) A(l),
(2), (3),
B (81 [hereinafter, referred to as "Emergency ~ r d i n a n c e " ] ~Possession

;
of firearms by minors
(5 3-
345.1) [hereinafter, referred t o as "Minors 0rdinance"13; Lost and Stolen Firearms ( 5 3-345.4)
[hereinafter, referred to as "Lost and Stolen 0rdinance"14; and, Discharging weapons or firearms
( 5 3-345.2) [hereinafter,
referred to a5 "Discharge 0rdinance"15,
Under Act 192 the Plaintiffs have standing to challenge all five city ordinances. Even
absent Act 192,the Plaintiffs would have standing with respect to the Parks Ordinance.
V.
Citv of Erie, 83 A.3d 467 (Pa.Cmwlth. 20141; Nat'l Rifle Ass'n v. City of Philadeb&,
.&em
977 A.2d 78,
8 1 (Pa.Cmwlth. 2009).
The Defendants argue Act 192 is unconstitutional and that this Court should stay these
proceedings pending the challenge to the constitutionality of Act 192 currently before rhe
Commonwealth Court in Leach v. Corn of Pa., 585 MD 2014. This Courtdeclines t o decide the
Act's constitutionality or stay the proceedings. The Commonwealth Court is the appropriate
forum to resolve this constitutional question. The timing and effect of any decision by the
Commonwealth Court and a final decision after appeal is uncertain. Furthermore, the
constitutionality of the added standing provisions are being challenged not the underlying preernwtion section of the Uniform Firearms Act.
Feb.
25. 2015 11:28AM
No. 3496
P. 5/16
We are guided by the principle that "acts passed by theGeneral Assembly are strongly
presumedto be constitutional, including the manner in which they were passed." &nnsylvania
state Ass'n of Jurv Comm'rs V. Corn., 64 A.3d 611, 618 (Pa. 2013). Thus, a statute will not be found
unconstitutional "unless it is clearly, palpably, and plainly violates the Constitution."
Id, If there is
any doubt as t o whether a challenger has met this high burden, then we will resolve that doubt in
favor of the statute's constitutionality.
Id.
The six essential prerequisites that a moving party m ~ l sdemonstrate

t
to obtain a
Preliminary injuhction are as follows:
(1)the injunction is necessary t'o prevent ihnediate and irreparable harm that
cannot be compensated adequately by damages; (2) greater injury would result
from refusing the injunction than from granting it, and, concomitantly, the
issuance of an injunction will not substantially harm other interested parties in
the proceedings; (3) the preliminary injunction will properly restore the parties
t o their status as existed immediately prior to the alleged wrongful conduct; (4)
the party seeking injunctive relief has aclear right t o relief and is likely t'o prevail
on the merits; (5) the injunction is reasonably suited t o abate ofiending activity;
and (6) the preliminary injunction would not adversely affect the public interest.
Seiu Healthcare Pennrylvahia v. Commonwealth of Pennsvlvania, 104 A.3d 495,501-502 (Pa. 2014)
Plaintiffs rnust prove by preponderance of the evidence that they meet all six prerequisites t o obtain a preliminary injunction enjoining the City of Harrisburg from enforcing these
ordinances. The critical prerequisite Plaintiffs must prove is whether they have "a clear right to
relief and likely to prevail on the merits." We begin our analysis there.
Fell
2 5 2 0 1 5 1 1 28AM
No.
3496
P. 6/16
The Plaintiffs challenge the Parks Ordinance subsections B and C as it applies to firearms
defined under the Uniform Firearms Act. The City, by this ordinance reguia'tes and prohibits the
possession of firearms in parks. The State already regulates this activity with respect. to parks that
the city ordinance also seeks t o regulate. 5ee 34 Pa5C.A. 5 2508 (Protection of institutions, parks
and resorts); 5 2507 (Restrictions on shooting);
5 2505 (Safety zones). These state laws regulate
but do not prohibit firearms in parks. In addition, state law under 18 Pa.C.S.A. 5 6109 regulates
licensure to carry a firearm. The express language ofthe Uniforms Firearms Act clearly states that
no muhicipality may in any manner regulate the ownership or possession of firearms. The Court in
Dilion v. City of Erie, 83 A.3d 461 (PaLmwlth. 2014), prior to Act 192, struck down a similar City
of Erie ordinance.
As a result, the trial court erred in determining that Dillon failed to
6120(a)
show that he has a clear right to Pelief because
preempts all firearm regulation thereby prohibiting the city from
regulating the possession of firearms in parks.
Id. at 407.
-
Accordingly, Plaint.iffs have sustained their burden in showing a clear right to relief
with respect t o the Parks Ordinance.

Next we examine the Emergency Ordinance. The ordinance, which takes effect when the
Mayor declares a state of emergency, prohibits the sale ortransfer of possession of firearms and
ammunition and the display and possession of a firearm in public. In other words, a l~censedgun
owner, under these circumstances, cannot carry or possess a firearm in public. The State
regulates emergency measures during a state of emergency under 18 Pa.C.S.A. 5 6107. Section
F e b . 25. 2 3 1 5 1 1 : 2 8 A M
No.
3496
P, 7/16
6107 has an exception for licensed gun owners t o possess a firearm during a state of emergency.
The express language of Uniform Firearms Act prohibits the municipalit; f o m regulating the
ownership, possession and transfer of firearms and ammunition. Therefore, Plaintiffs have
established a clear right to relief that the Uniform Firearms Act preempts the Emergency
Ordinance.
Similarly, the City's Minors Ordinance, regulates the possession ofdirearms by minors,
which is regulated under state law.
See 18 Pa.C.5.A
6110.1. The City of Harrisburg prohibits a
minbr from possessing a firearm, unless they are accompanied by an aduit. The State prohibits a
minor from possessing a firearm, unless they are accompanied by an authorized adult for an
authorized purpose or they are hunting or tapping. 18 Pa.C.S.A $6110.1. Accordingly, the Minors
ordinance3 is preempted by the Uniform Firearms Act.
The Defendants argue, that the Plaintiffs have not established a clear right to relief
because the ordinances do not regulate "lawful" ownership or possession ... of firearms but,
instead regulate the "unlawful" ownership or possession ... of firearms under the Uniform
Firearms Act. The Defendants cite Minich v. ~ o u n t y ojefferson,
f
869 A.2d 1141 (Pa. Cmwlth.
2005) to support their position where the Court made that distinction. Interestingly, the
Commonweaith Court, four years later, in Nat'l Rifle Ass'n v. City of Philadelphia, 977 A.2d 78 (Pa.
pnwlth. 2009) with a similar panel of iudges rejected that distinction. In the Philadel~hiacase,
the municipality argued the General Assembly can only preclude local regulation of "lawful"
activity under the Uniform Firearms Act and not "unlawful" activity. In response, the Court in
Philadel~hiaheld:
Unfortunately, with respect t o matter before us, while we may
agree with the City that preemption of 18 Pa.C.S. 5 6120(a)
appears to be limited to the lawful use of firearms by its very
terms, we believe, however, that the crystal clear holding of our
Supreme Court in Ortiz, that "the General Assembly has [through
enactment of 5 6120(a) ] denied all municipalities the power to
regulate the ownership, possession, transfer or [transportation] of
f~rearms," precludes our acceptance of the City's argument and
the trial courts thoughtful analysis on this point.
Nat'i Rifle Ass'n v. City of Philadelphia, 977 A.2d at 82-83

This Court follows the more recent holding and reasoning bythe Commonwealth Court in
Nat'l Rifle Ass'n v. City of Philadelphia. Nonetheless, the three city ordinances discussed above,
are more restrictive than state law and therefore, regulate "lawful" conduct, The Parks Ordinance
prohibits possession of a firearm, which State Law does not. The Emergency Ordinance does not
contain an exception for self-defense or an exception for those licensed t o carry a firearm as the
State Law specifically provides. The Minors Ordinance does not contain an exception for those
hunting or trapping under Title 34.
We next look at the city ordinance which places an additional duty on gun owners to
report lost and stolen firearms. The Court is not persuaded by the Defendants' argumentthat the
Lost and Stolen Ordinance is not barred by Uniform Firearms Act because "someone who steals a
gun, does not lawfully possess it, and someone who loses agun does not possess it at all." This
city ordinance places a duty on the owner of the firearm not a possessor. And, it is unlikely that
one who steals a gun would report it stolen within 48 hours.
The inquiry is whether or not this duty to report lost or stolen firearms is a "regulation of
ownership
... of firearms" under the Uniform Firearms Act. Although these types of ordinances
have been challenged in other jurisdictions, courb have no? decided whether they violate the
preemption section of the Uniform Firearms Act. Courts have denied challenges based on
standing.
In Nat'l Rifle Ass'n V. Citvof Pittsburgh, 999 A.2d 1256 (Pa. Cmwlth. 2010), the
Commonwealth Court was analyzing whether the NRA had standing, prior t o Act 192, t o challenge
a similar city ordinance requiring a gun owner to report lost 01-stolen firearms. While the majority
decision was that NRA lacked standing, the Court's language, a t best dicta, suggests that this duty
of a gun owner may no? infringe on the right to bear arms or violate the Uniform F~I-earms
Act.
See Id. at 1260. Judge Brobson, in a strong dissent to the majorities holding on standing, suggests
-that this type of ordinance requiring the reporting of lost or stolen firearms does r e ~ u l a t e
ownership of firearms under the Uniform Firearms Act and may interfere with the Second
Amendment of the United State Constitution and the Pennsylvania Constitution's right to bear
arms.
Here, we are not being asked to determine whether this ordinance interferes with the
Second Amendment or the Pennsylvania Constitution's right t o bear arms. Weare only tasked
with determining whether the ordinance violates the Uniform Firearms Act. There is no state law
Feb.25. 2015 11:28AM
No. 3496
P. 10/16
that regulates lost or stolen firearms. There is no clear appellate court guidance on point.
Preliminarily, therefore, the court must conciude that Plaintiffs have not proven that this duty
imposed on the ownel- of a firearm to report a lost or stolen firearm "regulate[s] the lawful
ownership ... of firearms" under the Uniform Fireacms Act. 18. Pa.C.5.A.
5 6120(a).
Consequently, this Court holds that Plaintiffs have not sustained t h e i ~burden to show a clear right
to relief at this early stage of litigarioh.
The last city ordinance challenged is the general ordinance concerning the discharge of
weapons or fireai-ms. it is surmisable that the purpose of the Discharge Ordinance, enacted in
1971, was t o protect public safety by prohibiting the indiscriminate shooting of firearms within the
City. Target practice in the backyard or vertical discharge of firearms in celebration while safer in
rural portions of Dauphin County may be dangerous within the city limits of Harrisburg.
This Court is not persuaded by the Plaintiffs argument that the Discharge Ordinance
violates tho Uniform Firearms Act b e c a w it does not contain exceptions for self-defense or for a
police officer discharging a firearm in the line of duty. It would be illogical for the ordinance to be
interpreted this way or for such persons t o be cited in either scenario. The Court is c h a r ~ e dwith
deciding if an ordinance violatesthe Uniform Firearms Act not whether it is well written.
he City
of Harrisburg asserts these exceptions are not necessary to be written into the ordinance because,
obviously, they argue, it would not apply in self-defense or to a police officer. Since both sides
appear t o agree t o situations when this ordinance would not and should not apply, perhaps the
, ,
parties could agree to amend the ordinance t o be clarified and incorporate these exceptions.
Feb. 2 5 . 2315 11:28AM
No.
3496
P 11/16
Regardless of the wording or lack of wording in the ordinance, there is no state law that
regulates this activity. To the contrary, there is a state law that specifically permits municipalities
.
t o regulate the discharge oiguns. 53 Pa.C.S.A. 5 37423 provides: "To the extent permitted by
Federal and other State law, counsel may regulate, prohibit and prevent the discharge of guns ... ."
See also, 53 Pa.C.S.A.
5 3703. Therefore, with respect to the Discharge Ordinance, the Plaintiffs
have not demonstrated a clear right t o relief.

The Court will now discuss the remaining prerequisite that Plaintiffs must prove with
respect to the three ordinances the Plaintiffs have established a clear right t o relief. When a city
ordinance violates constitutional statutory law, immediate and irreparable harm has been
established. Seiu Health Pennsylvania v.Commonwealth of Pennsylvania, 104 A.3d 495, 508 (Pa.
2014). Where city ordinances violate state law, greater harm would result in refusing the
injunction than granting it. By enjoining enforcement of these three city ordinances, the
injunction properly restores the parties to the status that existed prior t o the enactment o f the
unlawful city ordinances. Similarly, because the three city ordinances are unenforceable, the
preliminary injunction is reasonably suited t o abate the offending activity and will not adversely
affect the public interest. "[Wlhen the legislature declares particular conduct to be unlawful, It is
tantamount to characterizing as injurious to the public."
a,a t 509.
In summary, this Court will grant Plaintiffs Preliminary injunction enjoining enforcement of
three o i t h e Clty of Harrisburg's Ordinances - the Parks ~rdinance',the ~mergencyordinancez
and the Minors ordinance3 as these ordinances unlawfully regulate firearms under the Uniform
10
Firearms Act. This Court denies Plaintiffs Preliminary Injunction with respect t o the ~ o sand
t
Stolen ordinance4 and the Discharge ordinance5.
Even if Act 192 is declared unconstitutional, i t would only make it more difficult to
challenge the city ordinances but not affect the underlying preemption section of the Uniform
Firearms Act. The preemption section, enacted in 1974, is clearly constitutional and its
constitutionality is not being challenged. Consequently, this Courtfinds tile City of Harrisburg is in
violation of State Law with three of their city ordinapes.
We have set forth the issues presented t o this Court for decision. In addition t o other
arguments, the City of Harrisburg has suggested that these ordinances are in the interest of public
safety needed t o reduce the epidemic of gun violence. This stated goal for the ordinances in
question is indeed laudable as there is no more important function of government than the
protection of its citizens. Gun violence is not unique to the City of Harrisburg but is a statewide
concern necessitating uniform laws. The interest of public safety isprotected by enforcing state
law. Most of the criminal cases coming before this court concerning gun violence involve
defendants who illegally obtain guns, do not have a license to carry a firearm and are persons
prohibited by law from owning or possessing a firearm due t o prior convictions of certain
enumerated offenses. 18 Pa.C.S.A. @ 6106,6105. Those convicted of these offenses often
receive lengthy state prison sentences.
Whether or not the city ordinances in question, that carry the stigma of only a summary
offense, have any appreciable deterrents or effect on the epidemic of gun violence is not known.
11
Feb
25 2015 1 1 2 9 A M
No
3496
F 13/16
The Minors Ordinance was passed in 1951; the Emergency Ordinance was passed in 1969: and, the
Parks Ordinance was passed in 1991. It would be difficult to argue with any degree of conviction
that gun violence within the City of Harrisburg has decreased during that time. Perhaps an
effective and targeted implementation o f the City of Harrisburg's Community Policing lhitiative
could be one way t o have an impact on gun violence. Some analysis of gun vioience suggest the
causes are varied and complex and require the scrutiny to go beyond gun laws. Instead, gun
violence is associated with a confluence of many risk factors including mental health, decline in
parenting and values, violence depicted in movies and videos and other sociocultural factors.
Although interesting, necessary and important, an examination of the root cause of gun
violence and ways t o effectively reduce this violence are not before the Court. We are charged
only with deciding whether city ordinances violate the Uniform Firearms Act which we do with the
following Order:
F e b 25 2015 11,29AM
Yo 3496
US. LAW SHIELD OF PENNSYLVANIA, LLC,

EX REL. TODD HOOVER;
JUSTIN I. MCSHANE, AN INDIVIDUAL,
Plaintiffs
: IN THE COURT OF COMMON PLEAS

: DAUPHIN COUNTY, PENNSYLVANIA
: NO.
CITY OF HARRISBURG;
MAYOR ERIC PAPENFUSE;
WANDA WILLIAMS,
SANDRA REID,
BRAD KOPLINSKI,
BEN ALATT,
JEFF BALTIMORE,
SUSAN WILSON,
SHAMAINE DANIELS,
HARRISBURG CITY COUNCIL MEMBERS;
AND THOMAS CARTER, ClTY OF HARRISBURG
CHIEF OF POLICE,
Defendants
AND NOW thisJ"day
,E
P 14/16
2015 CV 00255 EQ
: CIVIL ACTION LAW
ORDER OF COURT
o f February, 2015, upon consideration of Plaintiff's M o t i o n f o r
Preliminary Injunction;
IT IS HEREBY ORDERED and DECREED that Plaintiffs' M o t i o n is GRANTED in part and
DENIED in part.
F e h . 25. 2 0 1 5 l l : 2 9 A M
The Piaintiffs' Motion is GRANTED and the C~tyof Harrisburg is enjoined from enforcing
ordinances 5 10 301.13 B, C (Parks - Hunting, firearms and fishing); 5 3-355.2 A (I),
(2), (3), 13 (8)
(Emergency measures); and 5 3-345 1 (Possession of firearms by minors) as these ordinances

apply t o firearms under the Uniform Firearms Act.
Plaintiffs'motion is DENiED with respect to ordinances 5 3-345.4 (Lost and stolen firearms)
and 5 3-345.2 (Discharging weapons or firearms)
BY TH E COURT:
Andrew H. Dowling, Judge
Distribution:
Justin J. McShane, Esquire, Michael A. Giaramita, Jr., Esquire,THE McSHANE FIRM LLC, 3601
Vartan Way, Second Floor, Harrisburg, PA 17110 (Counsel for Plaintiffs) (via e-mail, facsimile and
U.S. First Class Mail)
Frank Lavery, Jr., Esquire, Joshua M. Autry, Esquire, Jessica S. Hosenpud, Esquire, LAVERY
FAHERTY PAnERSON, 225 Market Street, Suite 304, P.O. BOX 1245, Harrisburg, PA 17108-1245
(Counsel for Defendants) ) (via e-mail, facsimile and U.S. First Class Mail)
Lili Hagenbuch, Esquire, Deputy Court Administrator (Civil)
F e b 25
2615 l l 29AM
N o 3196
16/16
1. Chapter 10-301 Parks; 910-301.13Hunting, firearms and fishing.
0, No person shail use, carry or possess firearms of any description or air rifles, sprlng guns, bow and arrows,
slings or any form of weapons potentially i~imicalto wild life and dangerom to human safety, or any
instrument that can be loaded with and fire blank cartridges, or any kind of rrapping device in any park.
C. No person shail shoot or propel an object from any of the foregolng into park areas from beyond
park boundaries or while in a park
2. Chapter
3-355. State of Emergency; 52-355.2 Emergency measures
A.
Whenever the Mayor declares that of emergency exits, the followi~?g

emergency prohibitions shall
thereupon be in effect during the period o said emergency and throughout the.City:
(3) The sale or transfer of possession, with or without consideration, the offering to sell or so transfer
and the purchase o f any ammunition, guns or other firearms of any size or description.
(2) The displaying by or in any store or shop of any ammunition, guns or other firearms of any size of
description.
(3) The possession in a pubiic piace of a rifle or shotgun by a person, except a duly authorizediaw
enforcement office or person in military service acting in an official performance of his or her duty.
0. The Mayor may order and promulgate ail or any of the following emergency measures, in whole or in
part, with such limitations and conditions as lie or she may determine appropriate; any such emergency
measures so ordered and promulgated shall thereupon be in effect during the period of said emergency
and in the area or areas for which the emergency has been declakd:
(8) The prohibition o f t h e possessio~iin a public place or park of weapons, including but not limited t o
firearms, bows and arrows, air rifle? slingshots, knives, razors,blackjacks, billy clubs, or missiles of any
kind.
'.Chapter 3-345. Weapons and Explosives: 53-345.1. Poszession of firearms by minors.

it shall be until of any minor under the age of 18 years t o have in his or her possession, except in his or her
place of residence, any firearm, flobcrt rifie, air gun, spring gun, or any implement which impels with force a
metal pellet of any kind, unless said minor is accompanied by an adult.
''
5.
Chapter 3-345. Weapons and Explosives; 83-345.4. Lost and Stolen Firearms
A. Any
who is the owner of a firearin that is lost or stolen shall report the loss or theft of thrit
firearm t o an appropriate local law enforcement office within 48,hours after discovery of the loss or
theft.
B. For the purpose of this section, the term "firearm" shall be defined as any pistol or revolver with a barrel
length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifie with a barrel
length less than 16 inches or any pistol, revolver, rifle or shotgun with an overail length of less than 26
inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel t o
the.face of the closed action, bolt, or cylinder, whichever is applicable.
Chaprer 3-345. Weapons and Explosives; 53-345.2 Dischargingweapon3 or firearms.
No person shall fire any cannon, gun, rifle, pistol, toy pistol, or firearms of any kind within the city, except at
supervised firing ranges and bona fide educational institutions accredited by the Pennsylvania Department of
Education and the approval of the Mayor or chief of police, or a? a firing range operated by Bureau of Police.
Certificate of Service
I certify that on this date, I served a true and correct copy of this
filing by this Courts electronic filing system and by United States, First
Class Mail, addressed as follows:
Justin J. McShane, Esquire
Michael Antonio Giaramita, Jr., Esquire
The McShane Firm, LLC
3601 Vartan Way, 2nd Floor
Harrisburg, PA 17110
(Attorneys for Plaintiffs-Appellees)
s/ Amyra W. Wagner
Legal Assistant to Frank J. Lavery,
Jr., Esquire and Josh Autry, Esquire
48

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Received 07/13/2015 Commonwealth Court of Pennsylvania

Filed 07/13/2015 Commonwealth Court of Pennsylvania

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Appeal from the Order of

Anglo-Am. Ins. v. Molin, 691 A.2d 929 (Pa. 1997) .................................. 22

Clarke v. House of Representatives, 957 A.2d 361

Com. v. Snyder, 560 A.2d 165 (Pa. Super. 1989) .................................... 37

Herman v. Dixon, 141 A.2d 576 (Pa. 1958) ............................................ 28

Lee Publications v. Dickinson Sch. of Law, 848 A.2d 178

Lutz v. City of Phila., 6 A.3d 669 (Pa. Commw. 2010 .......................... 4, 17

Roberts v. Board of Directors of School District of City of Scranton, 462

53 Pa.C.S. 36203 ............................................................................... 9, 45

Administrative Law Text s 22.04 (3rd ed. 1972) .................................... 23

pursuant to 42 Pa.C.S. 762(a)(4) and (a)(7). This is an interlocutory

Scope and Standard of Review:

the others. Id. (quoting County of Allegheny v. Commonwealth, 544 A.2d

City of Phila., 6 A.3d 669, 673 (Pa. Commw. 2010).

Statement of the Case:

Statement of form of action with brief procedural history:

This is a civil action for declaratory and injunctive relief against

Leach v. Com., 2015 WL 3889262 (June 25, 2015) (en banc).

litigation under an unconstitutional statute. Seeking to protect

Brief statement of any prior determination by any court:

Name of Judge whose determinations are to be reviewed:

The Honorable Andrew H. Dowling

Closely condensed chronological narrative of relevant facts:

In 1921, Pennsylvania authorized cities to ban unnecessary

Brief statement of order under review:

The trial court enjoined Harrisburgs gun ordinances regarding

Place of raising and preservation of issues:

Harrisburg raised and preserved its argument that the Plaintiffs

R.R. 172-74a, 177-83a, 185-86a, 190-93a, and statement of matters

without an injunction. Plaintiffs relied on Act 192s automatic standing

take reasonable measures to protect the public in general. Harrisburgs

The trial court erred by avoiding constitutional issues.1

The trial court erroneously granted a preliminary injunction

First, the injunction must be necessary to prevent

Id. at 177 (emphasis added).

City of Phila., 6 A.3d 669, 673 (Pa. Commw. 2010).

involves a purely legal question, it is reviewed de novo. Brady v. Urbas,

Legislators tacked these standing and attorney fee provisions onto a

court enforced an illegal and unconstitutional statute against

Procurement Code to utilize the BestValue

Brayman Const. Corp. v. Com., 13 A.3d 925, 939-40 (Pa. 2011).

The trial court considered itself obligated to enforce an unconstitutional

Plaintiffs did not present evidence of actual or imminent

Plaintiffs chose not to present evidence of standing, but to rely

Credit Alliance, 301 A.2d at 818 (unanimous) (preliminary injunction

Application of Biester, 409 A.2d 848, 851 (Pa. 1979).

2) Plaintiffs will possess a guns in a City park, or

Pittsburgh, this Court explained:

common, and one has pled that a gun of his was

The injunction changed the status quo.4

Plaintiffs further did not prove that this injunction against

Ins., 15 A.3d 547, 555 (Pa. Commw. 2011) (quoting In Re Milton

Plaintiffs did not present any evidence of a dire situation

Plaintiffs will likely claim on appealas they did belowthat