          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richard Hamborsky,                   :
                Petitioner           :
                                     :
            v.                       : No. 1359 C.D. 2016
                                     : Submitted: June 30, 2017
Pennsylvania State Police,           :
                   Respondent        :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                            FILED: July 24, 2017


            Richard Hamborsky (Hamborsky) petitions for review of an Office of
Attorney General (OAG) Administrative Law Judge’s (ALJ) decision affirming the
Pennsylvania State Police’s (PSP) denial of his application to purchase a firearm
because of his prior conviction for driving under the influence of alcohol (DUI)
which was graded as a first-degree misdemeanor. For the following reasons, we
affirm.


                                       I.
            In 2011, Hamborsky was convicted of violating Section 3802(c) of the
Vehicle Code, 75 Pa.C.S. § 3802(c), due to driving under the influence with a
blood alcohol concentration (BAC) of 0.166%. This offense was graded a first-
degree misdemeanor which resulted in a sentencing of three years of County
Intermediate Punishment, defined as 30 days of incarceration in the Greene County
Jail.1


                  In 2015, Hamborsky’s application to the PSP to purchase a firearm
was denied because under Section 922(g)(1) of the Federal Gun Control Act of
1968 (FGCA), 18 U.S.C. § 922(g)(1), his 2011 DUI conviction disqualified him
from purchasing a firearm.              The FGCA prohibits any person “who has been
convicted in any court of, a crime punishable by imprisonment for a term
exceeding one year” from purchasing a firearm. 18 U.S.C. § 922(g)(1). The term
“crime punishable by imprisonment for a term exceeding one year” is defined as
“any State offense classified by the laws of the State as a misdemeanor and
punishable by a term of imprisonment of two years or less.”                  18 U.S.C. §
921(a)(20)(B). Pennsylvania classifies a misdemeanor in the first-degree as one in
which “a person convicted thereof may be sentenced to a term of imprisonment,
the maximum of which is not more than five years.”2


                  Hamborsky challenged the denial of his application by seeking
reconsideration from the PSP. When reconsideration was denied, he appealed to
the OAG arguing that his DUI conviction was not one of the convictions

         1
           Because Hamborsky’s DUI was a second offense, it was graded as a first-degree
misdemeanor. According to Section 3803(b)(4) of the Vehicle Code, an individual “who
violates section 3802(c) or (d) and who has one or more prior offenses commits a misdemeanor
of the first degree.” 75 Pa.C.S. § 3803(b)(4).

         2
             Section 106(b)(6) of the Crimes Code, 18 Pa.C.S. § 106(b)(6).




                                                   2
enumerated under Section 6105(c) of Pennsylvania’s Uniform Firearms Act
(UFA), 18 Pa.C.S. § 6105(c), that would disqualify him from purchasing a gun.
Under that provision of the UFA, Hamborsky would not have been disqualified
because only “[a] person who has been convicted of driving under the influence of
alcohol or controlled substance . . . on three or more separate occasions within a
five-year period” is prohibited from obtaining a firearm in Pennsylvania.                       18
Pa.C.S. § 6105(c)(3). While the ALJ agreed that Hamborsky did not have three
DUI convictions within a five-year period necessary to deny him a firearm under
Pennsylvania law, the ALJ nonetheless sustained the denial because the PSP was
required to determine whether he was precluded from purchasing a firearm, not
only under state but federal law as well.3 Because Hamborsky was disqualified
from purchasing a firearm under Section 922(g)(1) of the FGCA, the ALJ affirmed
the PSP’s denial of his application. This appeal followed.


                                                II.
               On appeal, Hamborsky does not challenge the fact that under Section
922(g)(1) of the FGCA, his DUI conviction disqualifies him from owning a gun.
Instead, in his brief, he raises for the first time an as-applied challenge, contending
that Section 922(g)(1) unconstitutionally takes away his Second Amendment rights
because he is a non-violent offender who has, since his conviction, been a law-

      3
          Under 18 Pa.C.S. § 6111.1(b)(1)(i), the Pennsylvania State Police has the power to:

               [R]eview the Pennsylvania State Police criminal history and
               fingerprint records to determine if the potential purchaser or
               transferee is prohibited from receipt or possession of a firearm
               under Federal or State law.




                                                3
abiding citizen and his owning of a gun does not pose a continued threat to anyone.
This challenge was not raised before the ALJ nor was it raised in the Petition for
Review to this Court.


                In general, Section 703 of the Administrative Agency Law 4 requires
that an issue must be raised before an administrative agency before it is presented
for appellate review. Pa.R.A.P. 1551(a), however, provides certain exceptions to
this rule, including questions involving the constitutionality of a statute. The
reason behind the rule that a facial challenge to a statute’s constitutionality need
not be raised before an administrative agency is that “the determination of the
constitutionality of enabling legislation is not a function of the administrative
agencies thus enabled.” Borough of Green Tree v. Board of Property Assessments,
328 A.2d 819, 825 (Pa. 1974).


                While facial challenges can be raised at any time, as-applied
constitutional challenges must be raised before the agency because, rather than the
constitutionality of the statute itself, the issue is how the constitutional provision,
as applied to the individual making the challenge, has an unconstitutional result.
Lehman v. Pennsylvania State Police, 839 A.2d 265 (Pa. 2003). Not having raised
his as-applied challenge before the ALJ, Hamborsky cannot raise this issue for the
first time on appeal.


                In any event, Hamborsky failed to include the as-applied challenge to
Section 922(g)(1) of the FGCA in his Petition for Review. Under Pa.R.A.P.

      4
          2 Pa.C.S. § 703(a).



                                           4
1513(d)(5), a petition for review must provide “a general statement of the
objections to the order or other determination,” unless the court is able to address
the issue based purely on the certified record. Even if this involved a constitutional
challenge to the facial validity of a statute that does not require it to be raised
below, that challenge is deemed waived when it was not set forth in the petition for
review.    See Winchilla v. Workers’ Compensation Appeal Board (Nexstar
Broadcasting), 126 A.3d 364 (Pa. Cmwlth. 2015).             Because his as-applied
challenge was not raised before the ALJ or in his Petition for Review, that issue is
waived.


             For the foregoing reasons, we affirm the ALJ’s decision.



                                       _______________________________
                                       DAN PELLEGRINI, Senior Judge




                                          5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richard Hamborsky,                    :
                Petitioner            :
                                      :
            v.                        : No. 1359 C.D. 2016
                                      :
Pennsylvania State Police,            :
                  Respondent          :




                                   ORDER


            AND NOW, this 24th day of July, 2017, the decision of the Office of
Attorney General dated July 20, 2016, in the above-captioned matter is affirmed.



                                      _______________________________
                                      DAN PELLEGRINI, Senior Judge
