Doe 1 v. Franklin County

272 A.3d 1022

John DOE 1, John Doe 2, John Doe 3 and Jane Doe 1, Appellants

v.FRANKLIN COUNTY, Franklin County Sheriff's Office, Franklin County Sheriff Dane Anthony, and Employee John/Jane Doe

No. 96 C.D. 2021

Commonwealth Court of Pennsylvania.

Argued December 16, 2021

Decided March 4, 2022

Joshua Prince, Bechtelsville, for Appellants.

Elizabeth L. Kramer, Harrisburg, for Appellees Franklin County and Franklin County Sheriff's Office.

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge,¹ HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE LEAVITT

John Doe 1, John Doe 2, John Doe 3 and Jane Doe 1 (Licensees) appeal an order of the Court of Common Pleas of the 39th Judicial District (Franklin County Branch) (trial court) denying their motion for class certification. Licensees argue that the trial court erred because it based its decision on the merits of the underlying action and not on the standards for a class certification. Licensees further argue that they have satisfied each of the prerequisites enumerated in Pennsylvania Rule of Civil Procedure 1702, PA.R.CIV.P. 1702, for class certification. Licensees assert that the trial court's order denying class certification is appealable as a collateral order under Pennsylvania Rule of Appellate Procedure 313(b), PA.R.A.P. 313(b). We reverse the trial court's holding, vacate its order and remand for further consideration of the motion for class certification.

Background

Licensees are residents of Franklin County who have been licensed to carry firearms by the Franklin County Sheriff. On December 19, 2014, Licensees filed a complaint against Franklin County, the Sheriff's Office, and Sheriff Dane Anthony (collectively, County) for disclosing the status of their licenses to the public. Specifically, Counts I to III of the complaint asserted that the County violated the confidentiality provision of Section 6111(i) of the Pennsylvania Uniform Firearms Act of 1995 (Firearms Act), 18 Pa. C.S. § 6111(i), by sending postcards through the United States Postal Service (USPS) to notify Licensees of the approval, renewal, denial, or revocation of their license to carry firearms. The postcards showed the licensee's name, address and a statement of the approval, denial, or revocation of the license application. All the information was "visible [to] all individuals processing, mailing and serving the mail, as well as [to] any individual receiving the postcard at the address, who may or may not be the applicant or license holder." Complaint ¶22; Reproduced Record at 16a (R.R. __). Licensees claimed that the County's mailing of unenveloped postcards constituted "public disclosure" in violation of Section 6111(i) of the Firearms Act, 18 Pa. C.S. § 6111(i).

The trial court dismissed the eight-count complaint based on the County's preliminary objection in the nature of a demurrer. ²

With respect to Counts I to III, which asserted a violation of Section 6111(i) of the Firearms Act, the trial court held that the complaint did not state a claim because it did not plead facts to show that the County had publicly disclosed confidential information. The trial court further sustained the preliminary objections to Count III on the basis that Sheriff Anthony qualified as a high public official and was, thus, immune from liability for any acts performed in his official capacity, such as those challenged in the complaint.

Licensees appealed to this Court, and we affirmed in part, reversed in part and remanded for further proceedings. In doing so, our Court reviewed Section 6111(i) of the Firearms Act, which states as follows:

(i) Confidentiality.--All information provided by the potential purchaser, transferee or applicant, including, but not limited to, the potential purchaser, transferee or applicant's name or identity , furnished by a potential purchaser or transferee under this section or any applicant for a license to carry a firearm as provided by section 6109 shall be confidential and not subject to public disclosure . In addition to any other sanction or penalty imposed by this chapter, any person, licensed dealer, State or local governmental agency or department that violates this subsection shall be liable in civil damages in the amount of $1,000 per occurrence or three times the actual damages incurred as a result of the violation, whichever is greater, as well as reasonable attorney fees.

18 Pa. C.S. § 6111(i) (emphasis added). This Court construed the terms "confidential" and "not subject to public disclosure" to mean that "some nonpublic disclosure of information" was required. Doe v. Franklin County , 139 A.3d 296, 306 (Pa. Cmwlth. 2016) ( Doe I ). Nevertheless, we explained that "sheriffs may disclose the information to those necessary for law enforcement or criminal justice purposes." Id . We interpreted Section 6111(i) of the Firearms Act to mean that

"any person, licensed dealer, State or local governmental agency or department" violates Section 6111(i) of the [Firearms Act] by revealing an "applicant's name or identity" to a person not (1) authorized to receive such information by statute; (2) involved in the operation or management of the sheriff's office; (3) representing a law enforcement or criminal justice agency; or (4) otherwise authorized by an applicant. Disclosure to any other person constitutes "public disclosure" for purposes of this section .

Doe I , 139 A.3d at 307 (emphasis added).

In so holding, this Court rejected the trial court's conclusion that "public disclosure" in Section 6111(i) of the Firearms Act incorporated the "publicity" element necessary to prove an invasion of privacy under common law. To establish invasion of privacy under common law, one must prove that a private matter is "made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge," and the disclosure is "highly offensive to a reasonable person." Doe I , 139 A.3d at 306 (citing Harris v. Easton Publishing Company , 335 Pa.Super. 141, 483 A.2d 1377, 1384 (1984) ). This Court rejected the trial court's understanding of the Firearms Act. Instead, we held that Licensees’ complaint stated a claim under Section 6111(i) of the Firearms Act because the County used postcards to notify applicants of their license status. We further held that the doctrine of high public official immunity did not apply to Sheriff Anthony because the General Assembly imposed liability upon local agencies for violating Section 6111(i), and the county sheriff constituted a local agency. Doe I , 139 A.3d at 315. For these reasons, we reversed the trial court's dismissal of Counts I to III of the complaint.

Upon further appeal, the Pennsylvania Supreme Court granted review on the issue of "[w]hether the General Assembly intended to abrogate high public official immunity when it enacted 18 Pa. C.S. § 6111(i)." Doe v. Franklin County , 161 A.3d 800 (Pa. 2016). By decision in Doe v. Franklin County , 644 Pa. 1, 174 A.3d 593 (2017) ( Doe II ), the Supreme Court reversed this Court and held that the Firearms Act did not abrogate the sheriff's official immunity. The Supreme Court remanded the matter for reinstatement of the trial court's order sustaining the preliminary objections to Count III of the complaint. Id . at 608.

Counts I and II of Licensees’ complaint remained active. These counts challenged the County's use of postcards to notify applicants of the status of their licenses to carry firearms as a violation of Section 6111(i) of the Firearms Act.

Licensees’ Motion for Class Certification

On remand to the trial court, after the pleadings were closed, Licensees filed a motion for class certification that described the class as follows:

Those individuals, who allegedly had their confidential license to carry firearms applicant information disclosed by [the County] in violation of their right to privacy and 18 Pa. C.S. § 6111(i) from December 19, 2012[,] through the present.^{[ ]}

Motion for Class Certification, ¶18; R.R. 59a.³ The County filed an answer and a brief in opposition to Licensees’ motion, asserting, inter alia , that Licensees could not define the scope of the class members with the precision required by Pennsylvania Rule of Civil Procedure 1702. PA.R.CIV.P. 1702.⁴

The trial court conducted an evidentiary hearing and on June 28, 2019, issued an order denying Licensees’ motion for class certification for the stated reason that Licensees did not satisfy the numerosity requirement set forth in Rule 1702. The trial court explained that numerosity "leads directly to the critical issue in this case," which is whether the County's mailing of postcards containing applicants’ names, addresses, and license status constitutes a per se violation of Section 6111(i) of the Firearms Act. Trial Court Op. at 12; R.R. 156a. The trial court concluded that there was no "actual disclosure of confidential information" because there was no evidence presented that "anyone read the content of the postcards mailed to [Licensees] prior to their receipt by [Licensees]." Trial Court Op. at 7, 15, Finding of Fact (F.F.) No. 16; R.R. 151a, 159a.

Nevertheless, the trial court found, as fact, that the County issued 3,413 licenses to carry firearms in 2013; 2,913 licenses in 2014; 2,995 licenses in 2015; 4,359 licenses in 2016; and 3,535 licenses⁵ in 2017. Trial Court Op. at 7-8, F.F. No. 18; R.R. 151a-52a. The trial court also found that Licensees "have estimated the size of the class at 9,000," although they used 10,000 at the class certification hearing. Trial Court Op. at 8, F.F. No. 19; R.R. 152a.

Licensees appealed to this Court. On appeal,⁶ they raise two issues for our consideration. First, they assert that the trial court's order denying class certification is appealable as a collateral order under Pennsylvania Rule of Appellate Procedure 313(b), PA. R.A.P. 313(b). Second, they argue that the trial court erred...