Pennsylvania State Police v. Pecora

862 A.2d 734, 2004 Pa. Commw. LEXIS 871
CourtCommonwealth Court of Pennsylvania
DecidedDecember 6, 2004
StatusPublished

This text of 862 A.2d 734 (Pennsylvania State Police v. Pecora) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennsylvania State Police v. Pecora, 862 A.2d 734, 2004 Pa. Commw. LEXIS 871 (Pa. Ct. App. 2004).

Opinion

OPINION BY

Judge SMITH-RIBNER.

The Pennsylvania State Police (State Police) petitions for review of an August 6, 2003 adjudication of an administrative agency law judge (AALJ) with the Office of Attorney General. The AALJ upheld the appeal of Michael S. Pécora from the denial by the State Police of a unique approval number to permit processing of Pecora’s application for renewal of his license to carry a firearm based upon a check of the Pennsylvania Instant Check System (PICS) and directed the State Police to take remedial action with regard to his criminal history record. The State Police questions whether the AALJ’s order constitutes an error of law that must be reversed by this Court and, alternatively, whether the Court should summarily remand the present appeal to the AALJ in view of the Supreme Court’s ruling in Pennsylvania State Police v. Paulshock, 575 Pa. 378, 836 A.2d 110 (2003), which was filed November 30, 2003.

In 1977 Pécora pleaded nolo contendere to three counts of violation of 26 U.S.C. § 7201, relating to attempt to evade or defeat income tax, which offense carries a maximum possible five-year term of imprisonment. That conviction later triggered a federal firearms disability pursuant to Section 922(g)(1) of the Gun Control Act of 1968 (Federal Act), 18 U.S.C. § 922(g)(1), which makes it unlawful for any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to possess in or affecting interstate or foreign commerce any firearm or ammunition or to receive any firearm or ammunition that has been shipped or transported in interstate or foreign commerce.

In 1996 Pécora applied to the Luzerne County Sheriff for a renewal of his license to carry a firearm concealed on or about his person or in any vehicle pursuant to Section 6109 of the Pennsylvania Uniform Firearms Act of 1995 (State Act), as amended, 18 Pa.C.S. § 6109. The Sheriff denied the application based upon the federal conviction, and Pécora appealed to the Court of Common Pleas of Luzerne County (trial court). After oral argument, the trial court upheld the denial. On Pecora’s further appeal, this Court determined that a sufficient record to permit appellate review had not been created, and the Court remanded for development of a record. After a hearing in April 1998 the trial court issued a decision on May 4, 1998 determining that Pecora’s crime fell within an exception in Section 6102 of the State Act, as amended, 18 Pa.C.S. § 6102, which provides that “[cjrime punishable by imprisonment exceeding one year” does not include “Federal or State offenses pertaining to antitrust, unfair trade practices, restraints on trade or regulation of business.” The trial court ordered the Sheriff to issue Pécora a license to carry a firearm [736]*736provided he met the criteria set forth in the State Act.1 .

The State Police brought PICS on line on July 1, 1998, and it began conducting background checks and issuing unique approval numbers for purposes of firearms transfers and license applications.2 Pécora filed a license renewal application with the Sheriff on January 25, 2002. The State Police refused to issue a unique approval number to process the application based upon the 1977 conviction, and Pécora filed a challenge in accordance with Section 6111.1(e) of the State Act, as amended, 18 Pa.C.S. § 6111.1(e).3 The AALJ, citing the trial court’s decision of May 4, 1998, issued the order of August 6, 2003 noted’ above. The State Police notes that when the AALJ filed his opinion with this Court on or about January 20, 2004, he stated that in light of Paulshock, his original decision was reversed. The State Police recognized that the AALJ lacked jurisdiction at that time to reverse his previous ruling, and it filed a motion for this Court to summarily remand the case for reconsideration. The Court directed the motion for remand to be decided together with the merits of the case.4

In Paulshock the Supreme Court addressed the relation of the State Act and the Federal Act in two consolidated cases. In both cases men with convictions from the 1960s filed petitions in common pleas courts pursuant to Section 6105(d) of the State Act seeking relief from the state firearms disability so that they could purchase guns. The trial courts issued orders [737]*737stating that they were relieved of disability, but, when they attempted to purchase, records checks showed the convictions, and the State Police determined that they were disabled from purchasing under Section 922(g) of the Federal Act. In each case an AALJ concluded that the common pleas court order relieved firearm disability, and this Court affirmed on the consolidated appeals.

The Supreme Court noted that even in regard to one common pleas court order that purported to expunge the criminal history record for purposes of purchasing firearms, the expungement was issued in the context of a proceeding under Section 6105(d) of the State Act, not under Section 9122 of the Criminal History Record Information Act, as amended, 18 Pa.C.S. § 9122, which specifically applies to ex-pungement. Therefore, the conviction had not been “expunged” pursuant to Section 922(g) of the Federal Act, which would have removed it from the definition of a federally disqualifying conviction. The plain language of Section 6105(d) of the State Act was that a person might make application to the court of common pleas “for relief from the disability imposed by this section upon the possession, transfer or control of a firearm.” Hence, the only relief that could be given pursuant to a petition under Section 6105(d) was from the firearm disability imposed by Section 6105(a).

Section 6105(d)(3) of the State Act provides that for certain convictions or conduct enumerated in other subsections, “relief from the disability imposed by this section” may be granted if, among other things, the Secretary of the Treasury of the United States has relieved the applicant of a federal firearms disability, which condition may be waived if the court determines that Congress had not appropriated sufficient funds to enable such relief. The Supreme Court rejected an argument that a trial court could relieve a federal firearms disability pursuant to this provision. It emphatically stated that Section 6105(d)(3)(i) did not grant the common pleas court the power to relieve a federal firearms disability, and it rejected an assertion that such a ruling rendered Section 6105(d) meaningless because relief from the state disability was useless where the federal disability still existed. The court stated that since the state disability was lifted the applicants were one step closer to having a full state and federal removal of firearms disability, and it reversed the order of this Court and held that the ap-pellees remained firearm disabled under the Federal Act.

Pa. R.A.P. 1532(b) provides as follows: “(b) Summary relief.

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Related

Bellum v. Pennsylvania State Police
762 A.2d 1145 (Commonwealth Court of Pennsylvania, 2000)
Pennsylvania State Police v. McPherson
831 A.2d 800 (Commonwealth Court of Pennsylvania, 2003)
North Lebanon Township v. Workers' Compensation Appeal Board
829 A.2d 394 (Commonwealth Court of Pennsylvania, 2003)
Pennsylvania State Police v. Paulshock
836 A.2d 110 (Supreme Court of Pennsylvania, 2003)
Cipcic v. Workmen's Compensation Appeal Board
693 A.2d 1009 (Commonwealth Court of Pennsylvania, 1997)

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Bluebook (online)
862 A.2d 734, 2004 Pa. Commw. LEXIS 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-state-police-v-pecora-pacommwct-2004.