Crime v. Lower Merion Twp.

151 A.3d 1172

FIREARM OWNERS AGAINST CRIME, Kim Stolfer and Joseph Abramson, Appellants

v.LOWER MERION TOWNSHIP

No. 1693 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued: May 12, 2016

FILED: December 16, 2016

Joshua G. Prince, Bechtelsville, for appellants.

Gilbert P. High, Jr., Norristown, for appellee.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE McCULLOUGH¹

Firearm Owners Against Crime (FOAC), Kim Stolfer, and Joseph Abramson (collectively "Firearm Owners") appeal the August 26, 2015 order of the Court of Common Pleas of Montgomery County (trial court) denying their motion for a preliminary injunction.

Facts and Procedural History

In 2011, Lower Merion Township (Township) passed an ordinance amending section 109–16 of its Code (Ordinance) to prohibit persons from "carry[ing] or discharg [ing] firearms of any kind in a park without a special permit, unless exempted." Lower Merion Township, Pa., Code § 109–16. The Ordinance imposes a maximum fine of $600.00 per violation and authorizes the police to remove violators from Township parks or recreation areas.²

In 2014, FOAC contacted the Township and alleged that the Ordinance violated section 6120(a) of the Pennsylvania Uniform Firearms Act (UFA)³ because it improperly restricted firearm possession in Township parks. Upon review, the Township determined that the Ordinance was consistent with the UFA because it only prohibited the unlawful possession of firearms in parks and, therefore, chose not to repeal or revise it. FOAC subsequently conducted a rally in a Township park where many of its members carried firearms; however, no citations were issued and no threats of prosecution were made.

On March 20, 2015, Firearm Owners filed a complaint against the Township seeking declaratory and injunctive relief and alleging that the Ordinance violated Article 1, Section 21 of the Pennsylvania Constitution⁴ and was preempted by the UFA. On April 14, 2015, the Township filed preliminary objections to Firearm Owners' complaint, as well as a motion to stay proceedings, arguing, inter alia , that Firearm Owners lacked standing to challenge the Ordinance.⁵

On May 8, 2015, Firearm Owners filed a motion for preliminary injunction. In their motion, Firearm Owners alleged that: the Ordinance's violation of the Pennsylvania Constitution and the UFA constituted per se immediate and irreparable harm; greater injury would result from refusing the injunction than granting it because Firearm Owners would face prosecution and be deprived of their constitutional and statutory rights; an injunction would restore the parties to their status as it existed prior to the alleged wrongful conduct; and Firearm Owners are likely to prevail on the merits because the Township's enactment of the Ordinance is preempted and, therefore, prohibited.

The Township filed an answer to Firearm Owners' motion, asserting that there is no evidence indicating that the Township ever enforced the Ordinance against any party and, therefore, any harm alleged was speculative and insufficient to warrant issuance of a preliminary injunction. Additionally, the Township argued that: more harm would result from granting the injunction than refusing it because prohibiting the unlawful possession of firearms is essential to the safety of the Township's residents; the issuance of injunction will not restore the parties to their status as it existed prior to the alleged wrongful conduct; and Firearm Owners are not likely to prevail on the merits of their claim because, inter alia , the Ordinance does not violate the UFA as it only regulates the unlawful possession of firearms in Township parks.

By order dated August 26, 2015, the trial court denied Firearm Owners' motion for preliminary injunction. The trial court reasoned that Firearm Owners' claims are uncertain and, therefore, "the matter is not ripe for a preliminary injunction." (Trial court op. at 4.) Additionally, the trial court determined that Firearm Owners failed to meet their burden to prove immediate and irreparable injury because the alleged injury was speculative. The trial court also noted that the Township proffered weighty arguments against Firearm Owners' claim that they are likely to succeed on the merits, citing this Court's decision in Minich v. County of Jefferson , 869 A.2d 1141 (Pa. Cmwlth.) (en banc), appeal denied , 585 Pa. 700, 889 A.2d 90 (2005).

On appeal to this Court,⁶ Firearm Owners reiterate the arguments they made before the trial court. Specifically, Firearm Owners assert that the trial court erred in denying their motion for preliminary injunction because the Ordinance is preempted by the Pennsylvania Constitution and the UFA, all of the necessary prerequisites are met, and, therefore, issuance of a preliminary injunction is proper.

Discussion

Preliminary Injunction

The essential prerequisites of a preliminary injunction are: 1) the injunction is necessary to prevent immediate and irreparable harm not compensable in money damages; 2) greater injury will result from refusing the injunction than from granting it; 3) the injunction restores the parties to status quo ante ; and 4) the activity sought to be restrained is actionable and the plaintiff's right to relief is clear. Dillon v. City of Erie , 83 A.3d 467, 470 n.1 (Pa. Cmwlth. 2014) (en banc). "Because one of the elements which the moving party must establish is that ‘his right to relief is clear,’ it is of course necessary that the moving party be able to show that he has a reasonable likelihood of success on the merits." Lewis v. City of Harrisburg , 158 Pa.Cmwlth. 318, 631 A.2d 807, 810 (1993).

Firearm Owners' Right to Relief

Section 6120(a) of the UFA provides, in relevant part, that "[n]o county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms ...." 18 Pa.C.S. § 6120(a).

The Pennsylvania Supreme Court's decision in Ortiz v. Commonwealth , 545 Pa. 279, 681 A.2d 152 (1996), is instructive because it delineates the relationship between state and local firearm regulation. In Ortiz , Philadelphia and Pittsburgh passed ordinances regulating certain types of assault weapons within their respective geographic regions. After the ordinances were passed, the Pennsylvania General Assembly amended the UFA to add section 6120(a)'s current language. Thereafter, Philadelphia city councilmembers and others filed a petition for declaratory and injunctive relief, seeking to enjoin the Commonwealth's preemption of Philadelphia's regulation of assault weapons as well as a declaration that the amendment is unconstitutional and violates the city's home rule charter and the First Class City Home Rule Act.⁷ The Commonwealth filed preliminary objections, which this Court granted for failure to state a cause of action, and the petitioners appealed.

On appeal, the Pennsylvania Supreme Court stated that:

The sum of the case is that the Constitution of Pennsylvania requires that home rule municipalities may not perform any power denied by the General Assembly; the General Assembly has denied all municipalities the power to regulate the ownership, possession, transfer or possession of firearms; and the municipalities seek to regulate that which the General Assembly has said they may not regulate. The inescapable conclusion, unless there is more, is that the municipalities' attempt to ban the possession of certain types of firearms is constitutionally infirm .

Id. at 155 (emphasis added).

Nevertheless, the petitioners argued, inter alia , that a home rule municipality's power may be restricted only when the General Assembly has enacted a statute on a matter of statewide concern. The Supreme Court noted that:

Although we agree with appellants that the General Assembly may negate ordinances enacted by home rule municipalities only when the General Assembly's conflicting statute concerns substantive matters of statewide concern, this does not help the municipal appellants, for the matters at issue in this case are substantive matters of statewide concern .

Id. at 156 (emphasis added). The Supreme Court then cited Article 1, Section 21 of the Pennsylvania Constitution and stated that:

Because the ownership of firearms is constitutionally protected, its regulation is a matter of statewide concern. The constitution does not provide that the right to bear arms shall not be questioned in any part of the commonwealth except Philadelphia and Pittsburgh, where it may be abridged at will, but that it shall not be questioned in any part of the commonwealth. Thus, regulation of firearms is a matter of concern in all of Pennsylvania, not merely in Philadelphia and Pittsburgh, and the General Assembly, not city councils, is the proper forum for the imposition of such regulation .

Id. (emphasis added). Accordingly, the Pennsylvania Supreme Court affirmed this Court's order sustaining the Commonwealth's preliminary objections for failure to state a cause of action.

The Township would have us distinguish the instant appeal from Ortiz based on its assertion that the Ordinance purports to regulate only the unlawful possession of firearms and that, consequently, Firearm Owners' right to relief is not clear. It relies upon our decision in Minich for this proposition.

The Township's reliance on Minich is misplaced. In Minich , the county enacted an ordinance prohibiting individuals from possessing weapons in any county building and mandating that a point-of-entry search be performed on every person entering the county court house. Subsequently, the plaintiffs attempted to enter the county court house while possessing concealed handguns for which they had valid permits; however, the plaintiffs were denied entry when they refused to submit to a point-of-entry search. Thereafter, the plaintiffs filed a complaint seeking declaratory and injunctive relief, asserting that section 6120(a)...