           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police,                       :
                         Petitioner              :
                                                 :   No. 841 C.D. 2015
                v.                               :   Submitted: October 2, 2015
                                                 :
Richard Brandon,                                 :
                               Respondent        :

BEFORE:         HONORABLE BERNARD L. McGINLEY, Judge
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                 FILED: November 24, 2015

                In this appeal, the Pennsylvania State Police (PSP) asks whether an
Administrative Law Judge (ALJ) in the Office of Attorney General (OAG) erred in
ordering the PSP to remove from the Pennsylvania Instant Check System (PICS)
database, as it pertains to Richard Brandon (Brandon),1 the disability imposed by
Section 6105(c)(4) of the Uniform Firearms Act (UFA), 18 Pa. C.S. §6105(c)(4)
(generally stating that an individual who has been involuntarily committed to a
mental institution for inpatient care and treatment under Sections 302, 303 or 304
of the Mental Health Procedures Act2 (MHPA), may not possess a firearm).




       1
         No party sought to amend the caption to use only Brandon’s initials. Indeed, in his
multiple filings in this case, Brandon refers to himself by name.
       2
           Act of July 9, 1976, P.L. 817, as amended, 50 P.S. §§7302, 7303, 7304.
            In particular, the PSP asserts it met its burden of proving Brandon was
properly denied a license to carry concealed firearms by presenting records from a
county mental health department and other supporting documentation, which
indicates Brandon was twice involuntarily committed under Section 302 of the
MHPA. Because we are unable to conduct effective appellate review, we vacate
the ALJ’s order and remand to the OAG for further consideration.


            In September 2013, Brandon applied for a license to carry a firearm
with the Butler County Sheriff’s Office, prompting a search of the PICS database.
Brandon’s application was denied after a search of the PICS database revealed two
purported involuntary commitments. After the PSP denied his challenge to the
PICS information based on mental health commitments in 1987 and 1994, Brandon
appealed to the OAG. A hearing ensued before the ALJ.


            The ALJ’s decision contains no factual findings. As such, we set
forth the following summary of the evidence presented at the hearing. The PSP
presented the testimony of Marlin W. Rose (Rose), the Mental Health Emergency
Coordinator for Butler County (County), who attends all mental health
commitment hearings and coordinates those proceedings for the County. Rose
explained his office is instrumental in obtaining the warrants necessary for
proceedings under Section 302 of the MHPA. Rose identified two County Incident
Report Emergency Services (IRES) forms for Brandon. The IRES form is a
document regularly generated by Rose’s office. The IRES forms are regularly
submitted by the County’s mental health delegates to Rose’s office.




                                        2
            As to the two IRES forms pertaining to Brandon, Rose testified that
one form pertained to an incident in June 1994, which revealed Brandon was
involuntarily committed under Section 302 of the MHPA. The 1994 IRES form
indicated that PSP Trooper Daniel Herr petitioned for the Section 302 involuntary
commitment, signifying he considered Brandon a clear and present danger to
himself and others. Rose confirmed that his office would not complete an IRES
form indicating a Section 302 disposition unless a physician certified that the
individual was severely mentally disabled.


            In addition, Rose explained, his office had a second IRES form
pertaining to Brandon, which was generated in 1987.        The 1987 IRES form
indicated that Brandon was subject to a Section 302 involuntary commitment and
transferred to a medical facility for treatment. Rose again confirmed that the
disposition on the 1987 IRES form would not indicate a Section 302 involuntary
commitment unless a physician certified Brandon was severely mentally disabled
and recommended inpatient care.


            On cross-examination, Rose explained the IRES form is completed
after an entire incident transpired. Rose acknowledged the County’s mental health
department did not have any other documents, including the underlying Section
302 petition, pertaining to Brandon. Rose explained that during the timeframe at
issue, his office would not receive a copy of the actual Section 302 petition;
however, the process subsequently changed.   Rose indicated he had no knowledge
of any entity having a Section 302 petition for Brandon. On re-direct examination,




                                        3
Rose testified his office has an obligation to notify PSP whenever an individual is
involuntarily committed.


             In response to a question from the ALJ, Rose further testified it was a
“possibility” that a Section 302 petition for Brandon could be found at either one
of the two facilities that treated him for the 1987 and 1994 incidents. Reproduced
Record (R.R.) at 44a. The ALJ then admitted into evidence the two IRES forms
pertaining to Brandon.


             The PSP also presented the testimony of Christopher Clark (Clark),
who is employed by the PSP in the PICS Challenge Section.               PSP’s PICS
Challenge Section handles all the appeals from denials of firearm purchases or
licenses to carry firearms. Clark explained Brandon was initially denied a license
to carry a firearm based on two mental health commitments. Clark confirmed the
PSP received notice of both of Brandon’s involuntary commitments, which were
reflected in the PSP’s mental health database.


             The PSP also presented a police report indicating that Brandon was
transported to Butler Memorial Hospital for treatment and placed in the psychiatric
wing after treatment. Brandon’s counsel objected on the basis of hearsay because
the police officer was not available to testify. However, the ALJ accepted the
document and noted the objection. PSP’s counsel reiterated that he only sought to
admit the brief portion of the police report that stated Brandon was transported to
the hospital for treatment and placed in the psychiatric wing after treatment.




                                          4
              On cross-examination, Clark explained the notices pertaining to
Brandon’s involuntary commitments did not indicate the dates the PSP received
them because, for historical data prior to 1998, the PSP only received notices of the
commitments. As a result, Clark did not know the exact date the PSP received the
information concerning Brandon’s commitments; however, it appeared the PSP
received the records in 1999 when the records were actually entered into the PSP’s
database. Clark also confirmed he had no records of Brandon previously obtaining
a license to carry a firearm. Clark further testified the PSP did not have any
Section 302, 303 or 304 petitions for Brandon.


              On re-direct examination, Clark explained the PSP did not receive
Section 302 petitions from counties prior to 1998. Rather, transmission of that
information became a requirement after the effective date of the PICS system.
After that date, counties were required to transmit prior commitment information
to the PSP. Further, in response to questions from the ALJ, Clark explained that an
individual at the PSP inputs the data concerning involuntary commitments into the
PICS database, and information can only be entered if the PSP receives a copy of
an involuntary commitment from a hospital.


              The PSP’s counsel also indicated that the PSP issued a subpoena for
Brandon, seeking to present him as a witness in its case-in-chief.        Brandon’s
counsel objected on the ground that it was PSP’s burden to establish a Section 302
petition existed, and it could not produce any such petition. Thus, Brandon’s
counsel asserted the PSP could not meet its burden regardless of whether Brandon
testified.   Brandon’s counsel also objected on the ground the PSP began to



                                         5
criminally charge individuals for making false statements on forms when
attempting to purchase a firearm or obtain a license to carry a firearm. As such, he
objected on the ground that Brandon was asserting his Fifth Amendment privilege
against self-incrimination as Brandon could be implicated by any testimony the
PSP sought to elicit.      In response, the ALJ stated, because Brandon could
potentially subject himself to criminal prosecution by testifying, he had a right to
invoke his Fifth Amendment right not to do so.


            The parties also presented oral argument in support of their positions.
Brandon’s counsel asserted there were no Section 302 petitions presented. He
argued that in the absence of a Section 302 petition, the PSP previously admitted in
another case that it could not meet its burden to establish an individual was
involuntarily committed.     Specifically, Brandon’s counsel asserted that in an
earlier federal case, a deputy attorney general representing the PSP entered into a
settlement agreement acknowledging that, absent a Section 302 petition, the PSP
could not meet its burden. See R.R. at 82a-84a. Because the PSP produced no
Section 302 petition here, Brandon maintained, it could not meet its burden.


            In response, the PSP’s counsel explained that, in general, when the
PSP creates a settlement agreement, the language of the agreement indicates it is
not binding on the agency. Additionally, the PSP’s counsel argued that, based on
the preponderance of the evidence standard applicable in this administrative
agency proceeding, the PSP met its burden of proving Brandon was subject to two
prior involuntary commitments.




                                         6
               Specifically, the PSP asserted that Rose testified counties do not
report matters to PSP unless they involve 302 proceedings and involuntary
commitments. And, counties wait until after the conclusion of a Section 302
proceeding to do so. Here, the PSP’s counsel argued, there was a Section 302
disposition as indicated on the two IRES forms.                   The PSP’s counsel further
explained that, if this matter was before a federal or state trial court on an
expungement matter, the outcome might be different; however, in an
administrative agency proceeding such as the one at issue here, based on the
totality of the evidence, denial of Brandon’s appeal was appropriate.


               A day after the hearing, the ALJ issued an order in which he denied
Brandon’s appeal.          Brandon subsequently filed an emergency motion for
reconsideration and stay pending reconsideration in which he again asserted that,
in the absence of a Section 302 petition, the PSP could not meet its burden of
proving he was prohibited from obtaining a license to carry a firearm. The ALJ
granted a stay pending reconsideration, and he directed the parties to file letter
briefs in support of their positions.


               After the submission of the briefs, the ALJ issued an order in which
he sustained Brandon’s appeal. The PSP now petitions for review to this Court.3




       3
          After the PSP filed its petition for review to this Court, Brandon filed an application for
summary relief, seeking dismissal of the PSP’s petition for review on the ground that the PSP
sets forth no valid basis upon which to reverse of the ALJ’s decision. The undersigned denied
Brandon’s motion in July 2015.



                                                 7
             Generally, under Section 302 of the MHPA, an emergency mental
examination of a patient may be undertaken where a physician certifies an
examination is needed or an authorized county administrator approves a warrant
for examination. R.H.S. v. Allegheny Cnty. Dep’t of Human Servs., Office of
Mental Health, 936 A.2d 1218 (Pa. Cmwlth. 2007) (citing 50 P.S. §7302). A
patient must be examined within two hours after arrival at a treatment facility. Id.
If the examination reveals the patient needs treatment, it must begin immediately.
Id. If treatment is not necessary, the patient must be discharged. Id. In any event,
the patient must be discharged within 120 hours unless it is determined further
treatment is necessary or the patient voluntarily seeks additional treatment. Id.


             Further, Section 6105 of the UFA states, in relevant part (with
emphasis added):

             (a) Offense defined.--

             (1) A person who has been convicted of an offense enumerated
             in subsection (b), within or without this Commonwealth,
             regardless of the length of sentence or whose conduct meets the
             criteria in subsection (c) shall not possess, use, control, sell,
             transfer or manufacture or obtain a license to possess, use,
             control, sell, transfer or manufacture a firearm in this
             Commonwealth.

                                          ****

             (c) Other persons.--In addition to any person who has been
             convicted of any offense listed under subsection (b), the
             following persons shall be subject to the prohibition of
             subsection (a):

                                          ****




                                          8
                   (4) A person who has been adjudicated as an incompetent
                   or who has been involuntarily committed to a mental
                   institution for inpatient care and treatment under section
                   302, 303 or 304 of the provisions of the act of July 9,
                   1976 (P.L. 817, No. 143), known as the Mental Health
                   Procedures Act. This paragraph shall not apply to any
                   proceeding under section 302 of the [MHPA] unless the
                   examining physician has issued a certification that
                   inpatient care was necessary or that the person was
                   committable.

18 Pa. C.S. §6105(a)(1), (c)(4).


             On appeal, the PSP argues it met its burden of proving that Brandon
was properly denied a license to carry concealed firearms by introducing the
records from the County’s mental health department and other supporting
documentation, which indicates Brandon was involuntarily committed under
Section 302 of the MHPA after examinations in 1987 and 1994. The PSP asserts
the two IRES reports it submitted were intended to be a summation of the entire
Section 302 incident. Further, Rose testified that the disposition portion of the
report would indicate that there was a Section 302 involuntary commitment only if
a doctor certified that Brandon was severely mentally disabled, i.e., a clear and
present danger to himself or others, and in need of inpatient treatment. The PSP
contends the fully executed involuntary commitments prompted the County to
notify the PSP as it was required to do by statute. Thus, the PSP argues, Brandon
was properly denied a concealed license to carry a firearm.


             “On appellate review, we will affirm the decision of an administrative
agency unless constitutional rights were violated, an error of law was committed,
the procedure before the agency was contrary to statute, or any finding of fact


                                         9
made by the agency and necessary to support its adjudication is unsupported by
substantial evidence.” D’Alessandro v. Pa. State Police, 937 A.2d 404, 409 (Pa.
2007) (citing Section 704 of the Administrative Agency Law (AAL), 2 Pa. C.S.
§704; Pa. Game Comm’n v. State Civil Serv. Comm’n (Toth), 747 A.2d 887 (Pa.
2000)).
             In City of Philadelphia v. Hinkle, 881 A.2d 22, 26 (Pa. Cmwlth.
2005), this Court explained:

                    Under [the standard of review set forth in Section
             704 of the AAL], the General Assembly has only allowed
             courts to substitute their discretion for that of the agency
             where there is a violation of a constitutional right, where
             the decision is not in accordance with the law, or it is in
             violation of procedural rights guaranteed by the [AAL],
             and where there is no substantial evidence to support the
             agency decision. Any review of an agency decision must
             fall within one of those areas.


             Further, “[i]ncluded in both the violation of constitutional rights and
violation of the procedural rights guaranteed by the [AAL] is the requirement that
an agency explain its decision. An agency is already obligated by federal due
process to state reasons for its decision.” Hinkle, 881 A.2d at 26 (citing Goldberg
v. Kelly, 397 U.S. 254 (1970)). Indeed, pursuant to Section 507 of the AAL: “All
adjudications of a Commonwealth agency shall be in writing, shall contain
findings and the reasons for the adjudication, and shall be served upon all parties or
their counsel personally, or by mail.” 2 Pa. C.S. §507 (emphasis added).


             Section 507 of the AAL requires that adjudications contain findings of
fact that are “sufficiently specific to enable [a reviewing] court … to pass upon



                                         10
questions of law.” In re: Petition for Formation of Independent Sch. Dist., 962
A.2d 24, 28 (Pa. Cmwlth. 2008) (quoting Henderson v. Office of Budget, 537 A.2d
85, 86 (Pa. Cmwlth. 1988)). Further, adjudications stating only that a party “failed
to present evidence” to meet its burden do not comply with Section 507 of the
AAL. Id.
               Here, the ALJ’s order sustaining Brandon’s appeal states, in its
entirety:

                      AND NOW THIS 15th day of May 2015, having heard
               the appeal of [Brandon], reviewing the briefs of counsel and
               applying applicable case law to the denial of relief by the
               [PSP], dated February 14, 2014 the request of [Brandon] for
               Relief is hereby SUSTAINED. [PSP] is hereby ordered to
               amend the PICS database within 30 days so as to remove, as it
               pertains to [Brandon], the disability imposed by Subsection
               (c)(4) of Section 6105, 18 Pa. C.S. [§]6105 (c)(4). A petition
               for review of this decision in Commonwealth Court must be
               filed within 30 days of the date of this order.

R.R. at 85a.


               The PSP argues that, contrary to the ALJ’s decision, it presented
substantial evidence to prove that Brandon was properly disqualified from
obtaining a license to carry concealed firearms. However, our review of this claim
is problematic. To that end, the ALJ set forth no findings or reasons in support of
his order, rendering it impossible for this Court to conduct appellate review of the
ALJ’s adjudication. In the absence of any findings or reasons for the ALJ’s order,
this Court is left to guess at the ALJ’s reasoning for sustaining Brandon’s appeal.
This is particularly true here where, after hearing, the ALJ initially issued a
decision dismissing Brandon’s appeal, and after reconsideration, issued a decision


                                         11
sustaining Brandon’s appeal, both without explanation. Further, in this case, the
PSP, which bore the burden of proof,4 was the only party to present evidence, and
that evidence could support the grant or denial of Brandon’s appeal.5 As a result,

       4
           See Section 6111.1(e)(3) of the UFA, 18 Pa. C.S. §6111.1(e)(3).
       5
           As set forth above, Section 6105(c)(4) of the UFA prohibits a person who was
involuntarily committed to a mental institution for inpatient care and treatment under Section
302 of the MHPA from, among other things, possessing or obtaining a license to possess a
firearm. 18 Pa. C.S. §6105(c)(4). This prohibition does not apply to any proceeding under
Section 302 unless the examining physician issued a certification that inpatient care was
necessary or that the person was committable. Id. However, the plain language of Section
6105(c)(4) of the UFA does not require submission of the actual examining physician’s
certification. Id. Rather, the PSP could meet its burden of proof through the presentation of
circumstantial evidence. See, e.g., A.B. v. Slippery Rock Area Sch. Dist., 906 A.2d 674 (Pa.
Cmwlth. 2006). In A.B., this Court explained:

                        Circumstantial evidence has been defined as ‘evidence of
                one fact, or of a set of facts, from which the existence of the fact to
                be determined may reasonably be inferred,’ W. PAGE KEETON
                ET AL., PROSSER AND KEETON ON THE LAW OF TORTS §
                39, at 242 (5th ed. 1984) in contrast to direct evidence where there
                is direct eyewitness testimony of the ultimate fact to be
                determined. Monaci v. State Horse Racing Commission, 717 A.2d
                612 (Pa. Cmwlth. 1998). The inference from which the conclusion
                is derived ‘is simply a clear, logical, reasonable and natural
                conclusion which the trier of fact may embrace or reject based on
                the evidence in the case.’ Bixler v. Hoverter, 491 A.2d 958, 959
                (Pa. Cmwlth. 1985); see also Commonwealth v. Shaffer, 447 Pa.
                91, 288 A.2d 727 (1972) (‘an inference is no more tha[n] a logical
                tool enabling the trier of fact to proceed from one fact to another.’)
                The facts presented are the foundation of any inference and will
                determine whether that inference is reasonable. Ellis v. City of
                Pittsburgh, 703 A.2d 593 (Pa. Cmwlth. 1997). A party is not
                entitled to an inference of fact which amounts to nothing more than
                a guess or conjecture. Flaherty v. Pennsylvania Railroad Co., 426
                Pa. 83, 231 A.2d 179 (1967). When properly proved,
                circumstantial evidence is entitled to as much weight as direct
                evidence. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d
                630 (1991).

Id. at 677 n.8. Additionally, the level of proof required to establish a case before the ALJ is the
same degree of proof as used in most civil proceedings, i.e., a preponderance of the evidence.
(Footnote continued on next page…)

                                                 12
we must vacate the ALJ’s May 2015 order and remand for an adjudication that
contains findings and reasons for the decision. 2 Pa. C.S. §507; see Independent
Sch. Dist. (where secretary’s decision on party’s petition to transfer portion of
borough’s school-related services from one school district to another contained no
specific findings regarding the evidence, but rather merely set forth conclusory
findings indicating party did not submit sufficient information to meet its burden,
remand was necessary for adjudication that complied with 2 Pa. C.S. §507); see
also Turner v. Civil Serv. Comm’n, 462 A.2d 306 (Pa. Cmwlth. 1983) (where
commission’s decision merely concluded that police officer’s dismissal was for
just cause without any findings as to which testimony was found credible, which
charges against the officer were substantiated by the evidence, or what facts
constituted just cause for dismissal from employment, remand was necessary for
findings of fact consistent with Section 555 of the Local Agency Law, 2 Pa. C.S.
§5556). We leave to the thoughtful discretion of the ALJ to determine whether to
re-open the record for additional circumstantial evidence, such as hospital records.




                                             ROBERT SIMPSON, Judge

(continued…)

D’Alessandro v. Pa. State Police, 937 A.2d 404 (Pa. 2007). A preponderance of the evidence is
“such proof as leads the fact-finder ... to find that the existence of a contested fact is more
probable than its nonexistence.” A.B., 906 A.2d at 677 n.5 (quoting Sigafoos v. Pa. Bd. of Prob.
& Parole, 503 A.2d 1076, 1079 (Pa. Cmwlth. 1986)).
        Nonetheless, as explained above, because the ALJ did not set forth findings or reasons for
his adjudication here, we are constrained to remand this matter. See 2 Pa. C.S. §507.
       6
         The language of Section 555 of the Local Agency Law is identical to the language of
Section 507 of the Administrative Agency Law, 2 Pa. C.S. §507, which is at issue here.



                                               13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police,                  :
                         Petitioner         :
                                            :   No. 841 C.D. 2015
            v.                              :
                                            :
Richard Brandon,                            :
                         Respondent         :


                                      ORDER

            AND NOW, this 24th day of November, 2015, the order of the
Commonwealth of Pennsylvania, Office of Attorney General, dated May 15, 2015
in Case No. FAD01163, is VACATED and this matter is REMANDED for
proceedings consistent with the foregoing opinion.


            Jurisdiction is relinquished.




                                       ROBERT SIMPSON, Judge
