            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Firearm Owners Against Crime,                :
Kim Stolfer and Joseph Abramson,             :
                  Appellants                 :
                                             : No. 1693 C.D. 2015
               v.                            :
                                             : Argued: May 12, 2016
Lower Merion Township                        :



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



OPINION BY
JUDGE McCULLOUGH 1                                           FILED: December 16, 2016


               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


      1
          This opinion was reassigned to the Author on June 2, 2016.
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




       2
           See Lower Merion Township, Pa., Code §109-21 (imposing civil penalties).
       3
          Act of October 18, 1974, P.L. 768, as amended, 18 Pa.C.S. §6120(a). Notably, in
Leach v. Commonwealth, 141 A.3d 426 (Pa. 2016), the Pennsylvania Supreme Court invalidated
Act No. 192 of 2014 (Act 192) because it violated the Pennsylvania Constitution’s single-subject
rule. Act 192 amended four sections of the Crimes Code, including the UFA. Specifically, Act
192 added sections 6120(a.2) and (a.3), which allowed anticipatory challenges to local laws and
authorized the court to award reasonable expenses for a successful challenge to the same.
However, notwithstanding Leach, section 6120(a) of the UFA remains valid because it was
codified prior to the enactment of Act 192 and does not suffer from the same constitutional
infirmity.

       4
          Article 1, Section 21 of the Constitution of the Commonwealth of Pennsylvania
provides that “[t]he right of the citizens to bear arms in defence of themselves and the State shall
not be questioned.” PA. CONST. art. 1, §21.


                                                 2
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.



       5
          By order dated May 13, 2015, the Township’s motion for stay was denied and, by order
dated July 7, 2015, the Township’s preliminary objections were overruled in part and sustained
in part. (Reproduced Record (R.R.) at 1a-2a.)

                                              3
               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, 889 A.2d 90 (Pa. 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


       6
          Our scope of review of the grant or denial of a preliminary injunction is a narrow one;
we must examine the record to determine whether there were any apparently reasonable grounds
for the lower court’s decision. Dillon v. City of Erie, 83 A.3d 467, 472, n.7 (Pa. Cmwlth. 2014)
(en banc). “Only if it is plain that no grounds exist to support the decree or that the rule of law
relied upon was palpably erroneous or misapplied will we interfere with the decision of the
[Court].” Id.

                                                4
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, 631 A.2d 807, 810 (Pa. Cmwlth. 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, 681 A.2d 152 (Pa. 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


      7
           Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§13101-13157.

                                                5
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
                                           6
               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)
of the UFA preempted the regulation of firearm possession in a court facility. The
trial court agreed and declared the ordinance null and void. We reversed the trial
court, however, because section 913(f) of the Crimes Code8 already prohibited the
unlawful possession of firearms in the county court house’s first floor hallway
because it constitutes an “adjoining corridor” of a “court facility.” Thus, we held
that section 6120(a) of the UFA does not preempt the county’s ordinance because
it does not regulate the “lawful” possession of firearms; rather, it only regulates

      8
          Act of June 13, 1995, P.L. 1024, as amended, 18 Pa.C.S. §913(f).


                                                7
possession that the General Assembly has already deemed unlawful and, therefore,
does not conflict with the UFA.
              Unlike the ordinance in Minich, the subject Ordinance, by its terms
does not solely regulate the possession of firearms that the General Assembly has
already decided to be unlawful. The Ordinance is a broad proscription against
carrying or discharging any kind of firearm in a park absent a “special permit”
unless exempted. Unlike Minich, the Township does not point to any
corresponding provision in the Crimes Code that contains such a blanket ban of
firearm possession in a park. Further, the Township’s argument that the UFA does
not preempt a municipality’s regulation of unlawful firearm possession was
expressly rejected by this Court in National Rifle Association v. City of
Philadelphia, 977 A.2d 78 (Pa. Cmwlth. 2009).
               In City of Philadelphia, the city of Philadelphia enacted five
ordinances in an effort to regulate the ownership and transfer of firearms in the
city.9 The National Rifle Association (NRA), various NRA members, a sporting
foundation, a state association of firearms retailers, and two local firearm retailers
filed an action seeking declaratory and injunctive relief, asserting that the

       9
          The ordinances may be summarized as follows: “Imminent Danger Ordinance,”
authorizes the temporary removal of firearms from persons found by the court, upon affidavit of
two police officers or a district attorney, to pose a risk of imminent harm to themselves or others;
“Protection From Abuse Ordinance,” prohibits persons subject to an active protection from abuse
order from acquiring or possessing firearms when such order provides for confiscation of the
firearms; “Lost or Stolen Gun Ordinance,” requires gun owners to report their lost or stolen
firearms to law enforcement officials within twenty-four hours after discovery of the loss or
theft; “Assault Weapons Ordinance,” prohibits the possession, sale and transfer of certain
offensive weapons, including assault weapons, as well as certain contraband accessories or
ammunition; and, “Straw Purchaser Ordinance,” prohibits any person when purchasing a
handgun from acting as a straw purchaser and prohibits the purchase of more than one handgun
within any thirty-day period, except for any person who is not a straw purchaser. City of
Philadelphia, 977 A.2d at 79-80.

                                                 8
ordinances were unconstitutional and preempted by section 6120(a) of the UFA.
The trial court issued a preliminary injunction and, after a hearing, permanently
enjoined the city from enforcing the “Assault Weapons Ordinance” and the “Straw
Purchaser Ordinance” because it determined they were preempted by state law;
however, the trial court concluded that the plaintiffs failed to establish standing to
challenge the remaining three ordinances.
             On appeal to this Court, the city argued that section 6120(a) of the
UFA does not preempt all regulation of firearms; instead, the city averred that it is
authorized to regulate in more detail that which the state has already made
unlawful so long as it does not intrude “‘within the zone that has been expressly
preempted by the Commonwealth,’ i.e., the regulation of lawful activity.” Id. at
80. According to the city, it was not precluded from enacting the ordinances
because section 6120’s plain language indicates that the General Assembly
intended only to preclude local regulation of “lawful” activity, not unlawful
activity. Conversely, the plaintiffs argued that the city is preempted from enacting
any gun control ordinance pursuant to statewide preemption under section 6120(a)
of the UFA. We acknowledged Ortiz and reasoned that:

             [T]he fact that the Court in Ortiz did not discuss the
             statutory language relied upon by the City [i.e., “lawful”]
             does not provide a legitimate basis for us to ignore its
             holding. Unfortunately, with respect to the matter before
             us, while we may agree with the City that preemption of
             18 Pa.C.S. § 6120(a) appears to be limited to the lawful
             use of firearms by its very terms, we believe, however,
             that the crystal clear holding of our Supreme Court in
             Ortiz, that, “the General Assembly has [through
             enactment of § 6120(a)] denied all municipalities the
             power to regulate the ownership, possession, transfer, or
             [transportation] of firearms,” precludes our acceptance of
             the City’s argument and the trial court’s thoughtful
             analysis on this point.
                                          9
Id. at 82-83 (emphasis in original) (internal footnote omitted). Accordingly, we
affirmed the trial court’s order permanently enjoining the city from enforcing the
two ordinances that the plaintiffs had standing to challenge.
              According to the Township and the trial court, this Court’s decision in
Minich “supports the notion that the Ordinance is not clearly at odds with the
UFA” because the Ordinance regulates only the unlawful possession of firearms
and, consequently, Firearm Owners’ right to relief is not clear. (Trial court op. at 4
n.3). Additionally, the Township asserts that the language in City of Philadelphia
that contradicts Minich’s holding is dicta and the city’s argument therein was
distinguishable because, although the city purported to regulate unlawful conduct,
it was actually restricting lawful conduct. Conversely, Firearm Owners argue that
the Pennsylvania Supreme Court’s decision in Ortiz and this Court’s decision in
City of Philadelphia dictate that the Township is preempted from regulating
firearm possession in any manner.
              Here, contrary to the Township’s averment, it is irrelevant whether the
city in City of Philadelphia believed the conduct it was regulating was unlawful.
Rather, the critical upshot is our recognition that Ortiz’s “crystal clear holding”
prohibits this Court from endorsing the argument that a cognizable distinction
exists between regulating lawful activity and unlawful activity. 977 A.2d at 82.
Moreover, we disagree with the Township’s characterization of the language in
City of Philadelphia; it was not dicta because it was essential to our holding.
              Therefore, the trial court’s conclusion that Firearm Owners’ right to
relief was not clear based on Minich was erroneous: the activity Firearm Owners
seek to restrain is actionable and, pursuant to Ortiz and City of Philadelphia, their
right to relief is clear.


                                         10
             The Township’s Authority to Regulate on its Property
             The Township also argues that it is authorized to regulate the
possession of firearms in its parks based on its rights as a property owner and cites
this Court’s decision in Wolfe v. Township of Salisbury, 880 A.2d 62 (Pa. Cmwlth.
2005), for support.
             In Wolfe, the township enacted various ordinances regulating hunting
in its parks. Subsequently, a number of the township’s residents filed a petition to
permanently enjoin the township from implementing its ordinances, asserting that
the Game and Wildlife Code (Game Law), 34 Pa.C.S. §§101-2965, preempts all
local regulation of hunting, citing Duff v. Northampton Township, 532 A.2d 500
(Pa. Cmwlth. 1987), which invalidated a township ordinance that created its own
“safety zones” which differed from the “safety zones” established in the Game
Law. The trial court denied the petition and the residents appealed to this Court.
On appeal, the residents argued that the trial court erred in failing to apply the Duff
test for preemption.    We reasoned that Wolfe was distinguishable from Duff
because, in Wolfe, the township acted as a property owner regulating only
municipal-owned property rather than acting as a township regulating throughout
the municipality. Specifically, we stated:

             Residents, while relying heavily on this Court’s
             reasoning in Duff, ignore an important distinction
             between that case and the one before us. In Duff, a
             township enacted an ordinance regulating hunting
             throughout the township inconsistently with the Game
             Law, based on its police powers—that is, as a
             governmental entity. Here, however, the Township
             enacted the Ordinance, in compliance with the Game
             Law, based on its rights as a property owner of the two
             parks.
Wolfe, 880 A.2d at 68 (emphasis added).

                                          11
             Moreover, we found persuasive section 2508 of the Game Law, which
contained statutory exceptions that authorized hunting in parks under certain
circumstances notwithstanding the general rule prohibiting hunting in parks. See
34 Pa.C.S. §2508(c)(2). Thus, we affirmed the trial court’s determination that “as
long as property owners impose restrictions that are at least as restrictive as those
contained in the Game Law and set by the Commission, they are within their rights
to ‘regulate’ hunting on their own property.” Wolfe, 880 A.2d at 69.
             We find the present matter distinguishable from Wolfe because, here,
pursuant to Ortiz and City of Philadelphia, the Ordinance is not consistent with the
UFA. Rather, the UFA explicitly prohibits a township from regulating “in any
manner” and contains no express exemptions authorizing a township to enact
ordinances permitting firearm regulation on its property, i.e., parks, comparable to
that contained in the Game Law.         Additionally, it is not clear whether the
Ordinance was promulgated pursuant to the Township’s police powers or based on
its rights as a property owner; however, the fact that the Ordinance authorizes the
police to remove violators from Township parks suggests the Township’s police
power is the basis for the Ordinance rather than its property-owner rights.
Therefore, the Township’s argument that Firearm Owners’ right to relief is not
clear based on its authority to regulate its parks as a property owner pursuant to
Wolfe is unpersuasive.




                         Immediate and Irreparable Harm
             The Township also argues that Firearm Owners cannot demonstrate
immediate and irreparable harm because the Ordinance has never been enforced
against them, nor were they ever threatened with prosecution under the Ordinance.

                                         12
               This Court has stated that the violation of an express statutory
provision constitutes per se irreparable harm and a preliminary injunction may
issue where the other necessary elements are met.                    Council 13, American
Federation of State, County and Municipal Employees, AFL-CIO v. Casey, 595
A.2d 670, 674 (Pa. Cmwlth. 1991).
               Here, as explicated above, regardless of the persuasiveness of the
Township’s argument, our binding case law mandates that the Ordinance is
preempted by section 6120(a) of the UFA and, therefore, the Township’s
enactment of the same violates the UFA.                  Thus, issuance of a preliminary
injunction is necessary to prevent immediate and irreparable harm, i.e., the
continued statutory violation.10

       10
           Although the parties have not raised the issue of standing and the trial court did not
consider the same, the Dissent maintains that “because there have been no threats by the
Township of bringing an action for a civil penalty against anyone, FOAC has no standing to
maintain this action.” Dissent slip op. at 6-7. However, the question of standing is not an issue
of subject matter jurisdiction and, therefore, may not be raised sua sponte. Hertzberg v. Zoning
Hearing Board of Adjustment of City of Pittsburgh, 721 A.2d 43, 46 n.6 (Pa. 1998).
Nevertheless, even if standing was at issue, FOAC has established a sufficient injury to obtain
judicial review pursuant to this Court’s decision in National Rifle Association v. City of
Pittsburgh, 999 A.2d 1256 (Pa. Cmwlth. 2010), where this Court considered a factual situation
similar to the present matter, but distinguishable on the most important issue of standing.

        In City of Pittsburgh, a firearm advocacy group and four individual gun owners
(collectively, the appellants) challenged a city ordinance requiring gun owners to report missing
or stolen guns. In their complaint seeking declaratory relief, three individual gun owners alleged
that they lived in areas where residential burglaries were common and the fourth alleged that a
gun belonging to him had been stolen; however, he failed to specify whether the theft occurred
before or after the ordinance was enacted. The city filed preliminary objections, asserting that
the appellants lacked standing to challenge the ordinance. The trial court sustained the city’s
preliminary objections and dismissed the complaint.

       On appeal to this Court, we affirmed the trial court, relying on our decision City of
Philadelphia and reasoning that:

(Footnote continued on next page…)
                                               13
(continued…)
               The individual Appellants in this case, like the plaintiffs in
               Philadelphia, have never violated the ordinance, do not allege that
               they would disobey the ordinance if one of their guns is lost or
               stolen, and do not allege that a gun has been lost or stolen since the
               ordinance has been enacted. One of the individual Appellants in
               this case would not be fined under the ordinance unless he had a
               gun stolen or lost, failed to report it, and was prosecuted for that
               failure. Because, as in Philadelphia, the possibility of harm is
               remote and speculative, Appellants lack standing.

Id. at 1259 (emphasis added).

       Standing was denied because, as this Court noted, the appellants had never violated the
ordinance or alleged that they would violate the same. Indeed, Judge Brobson, in a dissenting
opinion, noted that the majority’s holding restricts who may file a pre-enforcement challenge to
the ordinance to a person who “(a) admits that he or she has already violated the ordinance in
question or (b) commits to violating the law.” Id. at 1261 (Brobson, J. dissenting) (emphasis
added). By limiting the class of persons who may file a pre-enforcement challenge in that way,
Judge Brobson stated that:

               We must not presume that the citizens of the Commonwealth will
               blithely choose to violate a law and risk criminal sanctions for the
               sole purpose of proving the law’s invalidity any more than we
               should presume that a local government would enact a law,
               regulation, or ordinance that it has no intent to enforce.

Id. (Brobson, J. dissenting).

        City of Pittsburgh is informative because it contemplates conferring standing on litigants
who have violated an ordinance even if no enforcement action has occurred. In the present
matter, it is undisputed that FOAC and many of its members conducted a rally in a Township
park while carrying firearms in violation of the Ordinance, although no citations were issued and
no threats of prosecution were made. Indeed, pursuant to City of Pittsburgh, the fact that FOAC
violated the Ordinance is sufficient to confer standing to obtain judicial review. As Judge
Brobson explained in his dissent to City of Pittsburgh, we cannot presume that a local
government would enact an ordinance it has no intention of enforcing. Thus, although the
Township did not enforce the Ordinance when FOAC and its members conducted a rally in its
park, we must not presume that it will act similarly if another rally is performed or an individual
violates the Ordinance. Here, unlike City of Pittsburgh, the injury alleged is not speculative; the
operative act has already occurred.

(Footnote continued on next page…)
                                                14
                                     Balance of Injuries
               The Township next argues that it would suffer substantial harm if the
Ordinance was enjoined because it is essential to the safety of Township residents
and to the public’s use and enjoyment of Township parks. However, contrary to
the Township’s assertion, we have stated that “[w]hen the Legislature declares
certain conduct to be unlawful it is tantamount in law to calling it injurious to the
public.” Dillon, 83 A.3d at 474.
               Thus, we conclude that greater injury would result from refusing an
injunction than granting it because refusing an injunction would sanction the
Township’s continued statutory violations of the UFA and, therefore, be injurious
to Firearm Owners and the public.


                                          Status Quo
               “The status quo ante to be preserved by a preliminary injunction is the
last actual, peaceable, lawful, noncontested status which preceded the pending
controversy.” Dillon, 83 A.3d at 472 n.7.



(continued…)
       Additionally, it is disconcerting that, by deliberately failing to enforce the Ordinance, the
Township could essentially determine who may challenge the Ordinance and when that
challenge will occur. The Township should not be the entity determining when and who may
invoke judicial review by arbitrarily enforcing the Ordinance; rather, that determination is within
the purview of the courts and should be determined by the relevant facts and constitutional
considerations.

       Accordingly, if this Court were authorized to consider standing sua sponte, it is apparent
that FOAC has established a sufficient injury to confer standing pursuant to City of Pittsburgh
because it has violated the Ordinance notwithstanding that the Township failed to enforce the
same.

                                                15
              Here, the last nonconstested status existed prior to the Township’s
enactment of the Ordinance. Therefore, an injunction enjoining the Ordinance
would restore the parties to their last uncontested status and preserve the status
quo.


                                       Conclusion
              Contrary to the trial court’s determination, this Court’s decision in
Minich does not support the notion that the Ordinance is consistent with the UFA
nor raise doubts regarding Firearm Owners’ right to relief. Rather, our decision in
City of Philadelphia expressly rejected the argument the Township proffered in the
present matter, i.e., that the regulation of unlawful firearm possession is consistent
with the UFA. Therefore, the trial court’s determination that Firearm Owners’
right to relief is not clear was erroneous. Moreover, Firearm Owners have met the
additional, essential prerequisites for issuance of a preliminary injunction.
              Accordingly, because there are no apparently reasonable grounds for
the trial court’s decision, the trial court’s order is reversed.




                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge


Judge Covey did not participate in this decision.




                                            16
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Firearm Owners Against Crime,      :
Kim Stolfer and Joseph Abramson,   :
                  Appellants       :
                                   : No. 1693 C.D. 2015
           v.                      :
                                   :
Lower Merion Township              :



                                   ORDER


           AND NOW, this 16th day of December, 2016, the August 26, 2015
order of the Court of Common Pleas of Montgomery County is reversed.



                                       ________________________________
                                       PATRICIA A. McCULLOUGH, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Firearm Owners Against Crime,                 :
Kim Stolfer and Joseph Abramson,              :
                  Appellants                  :
                                              :
               v.                             : No. 1693 C.D. 2015
                                              : Argued: May 12, 2016
Lower Merion Township                         :


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


DISSENTING OPINION BY
SENIOR JUDGE PELLEGRINI                                        FILED: December 16, 2016


               I respectfully dissent because the trial court had an “apparently
reasonable basis” to refuse to issue a preliminary injunction1 to declare invalid a 2011
township ordinance dealing with guns in its parks, and no action for a civil penalty
has been brought under our restrictive scope of review which forecloses inquiry into
the merits of the controversy. Even on the underlying merits, the majority gets it
wrong as our case law is clear: a local government can control, like every other

       1
          “The essential prerequisites of a preliminary injunction are as follows: (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. (4) The activity sought to be restrained is actionable, and the
plaintiff’s right to relief is clear.” The Woods at Wayne Homeowners Association v. Gambone
Brothers Construction Co., Inc., 893 A.2d 196, 204 (Pa. Cmwlth.), appeal denied, 903 A.2d 1235
(Pa. 2006) (citation omitted). The status quo ante to be preserved by a preliminary injunction is the
last actual, peaceable, lawful, non-contested status which preceded the pending controversy. Id. at
204 n.10.
property owner, what takes place on its property. The net result of the majority not
following our case law is something that the General Assembly never intended − that
a local government must permit guns in and on property that it owns, including its
recreation centers, ballfields, daycare centers and libraries, not to mention county
offices in the courthouse, in its police department, at its jail, in its council chambers,
in its mayor’s office and so on.


                                                 I.
              In 2011, Lower Merion Township (Township) amended Code Section
109-16 (Ordinance) of its Code 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 (2015). The Ordinance permits police to
remove violators from Township parks and imposes a maximum fine of $600.00 per
violation.2

       2
           See Lower Merion Township, Pa., Code § 109-21 (imposing civil penalties). The
provision does not provide for any “in default of payment” jail time; the only penalty imposed is
civil in nature. In Town of McCandless v. Bellisario, 709 A.2d 379 (Pa. 1998), our Supreme Court
addressed what level of due process protection was due when municipal ordinances did not provide
for imprisonment:

              While the enforcement of municipal ordinances that provide for
              imprisonment upon conviction or failure to pay a fine or penalty must
              follow the Rules of Criminal Procedure, the same is not true for
              municipal ordinances that do not provide for imprisonment upon
              conviction or failure to pay a fine or penalty, which, by definition, are
              not Penal Laws, and are therefore not included in the definition of
              “criminal proceedings.” Pa.R.Crim.P. 3. The higher degree of
              protection provided by the Rules of Criminal Procedure does not
              apply to municipal ordinance enforcement actions where
              imprisonment is not a remedy for a conviction or failure to pay a fine.

(Footnote continued on next page…)

                                             DRP - 2
               Firearm Owners Against Crime (FOAC), Kim Stolfer and Joseph
Abramson (collectively, “FOAC”) contacted the Township in 2014 alleging that the
Ordinance unlawfully restricts firearms in Township parks in violation of Section
6120(a) of the Pennsylvania Uniform Firearms Act (UFA), 18 Pa.C.S. § 6120(a),
which provides:

               (a) General rule.—No county, municipality or township
               may in any manner regulate the lawful ownership,
               possession, transfer or transportation of firearms,
               ammunition or ammunition components when carried or
               transported for purposes not prohibited by the laws of this
               Commonwealth.


The Township initially contemplated revising the Ordinance, but because it
concluded that the Ordinance only prohibited the unlawful possession and discharge
of firearms in parks, it determined that the Ordinance did not violate the UFA and
decided not to repeal or revise it.


               FOAC then held a rally in a Township park at which many of its
members carried firearms. No citations were issued, no threats of prosecution were
made and there is no evidence that the Township has ever enforced the Ordinance
against anyone, including FOAC members.




(continued…)

Id. at 381 (emphases in original).




                                        DRP - 3
                                                 II.
               FOAC then filed a Complaint seeking declaratory and injunctive relief
against the Township asserting the Ordinance is unconstitutional3 and preempted by
Section 6120(a) of the UFA. In the Complaint, FOAC averred that the Township
publicly announced its intention to enforce the Ordinance. FOAC then sought a
preliminary injunction to prevent the enforcement of the Ordinance. FOAC admitted,
however, that it was unaware of any person prosecuted under the Ordinance and did
not contend that any individual was specifically threatened with prosecution or
penalty under the Ordinance.


               At the preliminary injunction hearing, the Township emphasized that the
Ordinance has never been used to prosecute, cite or threaten any person, including
FOAC members. The Township reasserted that it enacted the Ordinance to merely
echo the state law’s prohibition against persons carrying concealed firearms without a
permit, and that the Ordinance treats persons who lawfully carry non-concealed
firearms in its park as being “exempt.” Further, the Township contended that FOAC
does not have a clear right to relief because the Ordinance is not a regulation of
firearms, but is instead an action carried out by the Township under its inherent
power to operate the property that it owns – in this case, its parks – and that such
conduct is not preempted by the UFA.




       3
          Article I, Section 21 of the Constitution of Pennsylvania provides that the “right of the
citizens to bear arms in defense of themselves and the State shall not be questioned.” Pa. Const. art.
I, § 21.




                                              DRP - 4
              Because the trial court determined that FOAC neither presented evidence
demonstrating actual proof of harm outside of those founded on speculation and
hypothesis nor established the existence of an immediate, irreparable harm justifying
extraordinary relief, the trial court concluded that FOAC failed to meet the standards
necessary to grant a preliminary injunction and denied its motion. Also, the trial
court found that the Township proffered weighty arguments against FOAC’s claim
for relief and, noting this Court’s decision in Minich v. County of Jefferson, 869 A.2d
1141 (Pa. Cmwlth.), appeal denied, 889 A.2d 90 (Pa. 2005), it determined that FOAC
failed to set forth a clear right to relief and that this matter should be fully adjudicated
at a regular trial.


              The majority reverses the trial court’s refusal to grant a preliminary
injunction because it finds that the Ordinance in question violates the prohibition
against a local government enacting general laws that regulate firearms in or on its
own property. Not only is that conclusion wrong, while paying lip service to it, the
majority also ignores that our scope of review for preliminary injunctions is “a
narrow one — we ‘do not inquire into the merits of the controversy, but only examine
the record to determine if there were any apparently reasonable grounds for the
action of the court below. Only if it is plain that no grounds exist to support the
decree or that the rule of law relied upon was palpably erroneous or misapplied will
we interfere with the decision of the [Court].’” Dillon v. City of Erie, 83 A.3d 467,
472 n.7 (Pa. Cmwlth. 2014) (quoting The Woods at Wayne Homeowners Association,
893 A.2d at 204) (emphasis added). Instead, I would affirm the trial court for the
following reasons.




                                         DRP - 5
                                         III.
                                          A.
             Because FOAC did not suffer any immediate, irreparable harm or
establish likelihood that they would suffer any personal harm, the trial court had
reasonable grounds to deny FOAC’s motion for preliminary injunction. There was
nothing in the preliminary injunction record establishing that FOAC members have
been prosecuted or that there is even a threat of prosecution, including at an FOAC
rally held at a Township park at which many of its members carried firearms.
Although FOAC allegedly fears the Ordinance’s enforcement, the trial court
reasonably concluded that such a generalized, speculative fear was insufficient for the
purpose of enjoining enforcement of the Ordinance. As this Court has explained,
“[w]hile one does not have to wait for an actual prosecution to have standing,
‘[i]njunctive relief is not available to eliminate a possible remote future injury or
invasion of rights.’”    Dillon, 83 A.3d at 475 (quoting Jamal v. Department of
Corrections, 549 A.2d 1369, 1371 (Pa. Cmwlth. 1988), appeal denied, 554 A.2d 512
(Pa. 1989)). Given FOAC’s rally in a Township park at which many of its members
carried firearms where no citations were issued and no threats of prosecution were
made, and given that there is no evidence the Township ever enforced the Ordinance
against anyone, including FOAC members, any harm is less than a remote possible
injury or invasion of rights.


                                          B.
                                          1.
             There are several reasons why FOAC does not have a clear right to
relief. First, from the discussion above, because there have been no threats by the



                                       DRP - 6
Township of bringing an action for a civil penalty against anyone, FOAC has not
suffered irreparable harm which, if we were considering preliminary objections rather
than preliminary injunctions, is the same as saying that it has no standing to maintain
this action.4 In National Rifle Association v. City of Pittsburgh, 999 A.2d 1256 (Pa.
Cmwlth. 2010), a general ordinance was challenged requiring the owner of a lost or
stolen firearm to report to law enforcement within 24 hours of the discovery of the
loss or theft. The plaintiffs lived in Pittsburgh, owned guns and had valid permits to
carry concealed weapons. Three of the plaintiffs alleged that they lived in areas
where residential burglaries were common, and the fourth alleged that a gun
belonging to him had been stolen. The trial court found that the plaintiffs lacked
standing to challenge the ordinance because they had not shown they were aggrieved.
On appeal, we adopted the reasoning of our opinion in National Rifle Association v.
City of Philadelphia, 977 A.2d 78 (Pa. Cmwlth. 2009), which itself adopted the
portion of the trial court’s opinion holding that the possibility that one of the plaintiffs
might lose a gun in the future, fail to report it and then be punished was too remote
and speculative to give them standing to challenge the legality of the theft reporting
ordinance. Moreover, we stated that the ordinance’s purported violation of the UFA
could not create a sufficient hardship that would ipso facto create automatic standing
to challenge that ordinance. See id. at 1260; see also Dillon, 83 A.3d at 475 (holding
plaintiff did not have standing to challenge a local ordinance where there was no
indication that its penalties would ever be applicable to him).

       4
         Because FOAC primarily asserted automatic standing through 18 Pa. C.S. §6120(a.1), the
Township also filed a motion to stay proceedings until this court decided whether the statute
violated the Pennsylvania Constitution. The Township’s motion was denied. This court and our
Supreme Court have since held that the provision violated the state constitution’s single subject and
original purpose requirements. Leach v. Commonwealth, 118 A.3d 1291 (Pa. Cmwlth. 2015),
affirmed, 141 A.3d 426 (Pa. 2016).




                                             DRP - 7
             In this case, that FOAC would be subject to civil penalty is similarly
remote and speculative. No one was ever cited or threatened with citation under the
Ordinance and, given the Township’s assertion that it enacted the Ordinance to
merely echo the state law’s prohibition against persons carrying concealed firearms
without a permit and that the Ordinance treats persons who lawfully carry non-
concealed firearms in its park as being “exempt,” FOAC lacks standing to maintain
the action. That alone serves as an “apparently reasonable basis” for sustaining the
trial court’s refusal to grant a preliminary injunction.


                                            2.
             Second, FOAC does not have a clear right to relief under Section
6120(a) of the UFA because the Township’s Ordinance does not regulate firearms.
Instead, it carries out the Township’s inherent power to control what takes place on
its property – in this case, its parks – and such conduct is not preempted by the UFA.
In Minich, we held that county officials could refuse to allow guns in county offices
in a courthouse because the UFA did not preempt local ordinances that only regulate
the unlawful use and possession of firearms on government property, reasoning:

             Section 6120(a) of the [UFA] provides that “[n]o county . . .
             may in any manner regulate the lawful . . . possession . . . of
             firearms . . . when carried . . . for purposes not prohibited
             by the laws of this Commonwealth.” 18 Pa. C.S. §
             6120(a) (emphasis added). In other words, the County may
             not enact an ordinance which regulates firearm possession if
             the ordinance would make the otherwise lawful possession
             of a firearm unlawful. Thus, if the County’s ordinance
             pertains only to the unlawful possession of firearms, i.e.,
             possession “prohibited by the laws of this Commonwealth,”



                                         DRP - 8
                then section 6120(a) of the Crimes Code does not preempt
                the County's ordinance.

869 A.2d at 1143 (footnote omitted) (emphases in original).5


                In this case, as the Township contends and the trial court accepted, that
is all this Ordinance does − it addresses how to deal with the unlawful possession of
firearms in parks under state law and nothing else. Because Minich held that type of
regulation was not preempted by Section 6120(a) of the UFA to prohibit guns in
county offices, the trial court had an “apparently reasonable basis” to find that FOAC
did not have a clear right to relief.


                In Wolfe v. Township of Salisbury, 880 A.2d 62 (Pa. Cmwlth. 2005), we
reiterated that a local government could forbid firearms on its property because it was
not regulating firearms as a municipality but instead carrying out its inherent right as
a property owner to control what conduct occurs on its own property. 6 We explained:


       5
           The above passage in Minich also provides a footnote:

                See Schneck v. City of Philadelphia, 383 A.2d 227 (Pa. Cmwlth.
                1978) (stating that it is a well-established principle of law that where
                a state statute preempts local governments from imposing regulations
                on a subject, any ordinance contrary to state law is unenforceable);
                see also Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996) (stating
                that the General Assembly may negate ordinances enacted by home
                rule municipalities only when the conflicting state statute concerns
                substantive matters of statewide concern).

869 A.2d at 1143 n.6 (emphases in original).

       6
          A municipality, in acquiring and maintaining parks and playgrounds, exercises a
proprietary, rather than a governmental, function; municipalities are liable for the improper
(Footnote continued on next page…)

                                               DRP - 9
                 Preemption is applicable where a township has acted to
                 regulate hunting as a township; that is, throughout the
                 municipality. This Ordinance, however, is applicable only
                 to the properties owned by the Township itself. The
                 Township has exercised its authority, as any other property
                 owner may, to “regulate” hunting on its property, consistent
                 with the [Game and Wildlife Code (Game Law), 34 Pa. C.S.
                 §§ 101-2965]. There is no authority to suggest that
                 municipalities that own property are treated differently than
                 individuals under the Game Law with respect to property
                 ownership rights.


Wolfe, 880 A.2d at 69 (footnote omitted).


                 As can be seen from Wolfe, the Township was not attempting to regulate
conduct throughout the municipality but only what takes place on property that it
owns or controls. What Minich and Wolfe teach us is that Section 6120(a) of the
UFA does not preempt a local government from acting like any other property owner
and control what occurs on its property by allowing or not allowing conduct that it
feels is not in its best interest or that of its guests.7


(continued…)

management and use of their property. See DeSimone v. City of Philadelphia, 110 A.2d 431 (Pa.
1955); Stevens v. City of Pittsburgh, 198 A. 655, 657-58 (Pa. 1938).

       7
           In Dillon, 83 A.3d at 473 n.9, we stated:

                 Not raised by the City is Section 3710 of the Third Class City Code,
                 Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 38710, which
                 provides, in pertinent part, that the City “shall at all times be invested
                 with the power and authority to adopt suitable rules and regulations
                 concerning the use and occupation of [its] parks and playgrounds by
                 the public generally. . . .” It could be argued that the City may be
                 empowered under that grant of power from the State to regulate the
(Footnote continued on next page…)

                                                DRP - 10
            The majority does not dispute that Minich and Wolfe say what they say,
but instead argues that they are inconsistent with our Supreme Court’s decision in
Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996), and our decision in City of
Philadelphia, 977 A.2d at 82. Let us examine each of those cases.


            Ortiz dealt with an action brought by a city councilman in Philadelphia
seeking a declaration that Philadelphia, under its home rule powers, had the power to
enact general ordinances to regulate assault weapons even though Section 6120(a) of
the UFA had prohibited it from doing so. Our Supreme Court held that even though
Philadelphia was a home rule municipality, it was still foreclosed from enacting such
an ordinance because the UFA was an act of statewide application.


            Neither Minich nor Wolfe, however, are inconsistent with Ortiz. Minich
distinguished Ortiz as “stating that the General Assembly may negate ordinances
enacted by home rule municipalities only when the conflicting state statute concerns
substantive matters of statewide concern.” Minich, 869 A.2d at 1143 n.3 (emphasis
in original). Our Supreme Court also apparently did not believe that our holding in


(continued…)

            possession of firearms in its parks pursuant to its proprietary power to
            control conduct that takes place on its property rather than through an
            ordinance of general application enacted pursuant to its general police
            powers.     Similarly, Section 11.215 of the regulations of the
            Commonwealth’s Department of Conservation and Natural
            Resources, 17 Pa. Code § 11.215, generally prohibits “[p]ossessing an
            uncased device, or uncasing a device, including a firearm, . . . that is
            capable of discharging or propelling a projectile . . .” in state parks,
            subject to a number of enumerated exceptions.




                                          DRP - 11
Minich was inconsistent with Ortiz since it denied Mr. Minich’s request for
allowance of appeal from our decision. 889 A.2d 90 (Pa. 2005).


               In City of Philadelphia, after we agreed with the trial court that the
plaintiff lacked standing to challenge certain ordinances, we went on to find that the
plaintiff had standing to challenge the legality of ordinances banning straw purchases
of handguns and purchases of assault weapons. Echoing Minich, we stated that while
we “may agree with the City that preemption of 18 Pa.C.S. § 6120(a) appears to be
limited to the lawful use of firearms by its very terms,” id. at 82, we went on to hold
that the city could not enact those ordinances because, in Ortiz, our Supreme Court
stated that “the General Assembly has [through enactment of § 6120(a)] denied all
municipalities the power to regulate the ownership, possession, transfer or
[transportation] of firearms.” Id.


               I do not disagree with that holding. In fact, I joined in that decision that
a local government cannot enact ordinances that regulate guns, notwithstanding that it
frustrated the “City’s latest attempt to regulate certain activity with respect to
firearms in its ongoing efforts to address the unfortunate and tragic proliferation of
gun crimes in the City.” City of Philadelphia, 977 A.2d at 80. However, neither
Minich nor Wolfe dealt with the general regulation of firearms or ownership of
firearms, only with the power of local governments to control what takes place on
their property, which we found in those cases was not preempted by the UFA.8

       8
         See Calguns Foundation, Inc. v. County of San Mateo, 218 Cal. App. 4th 661, 676-77 (Cal.
Ct. App. 2013) (Park gun ban not preempted, in part, because it is “very narrow” “land use
regulation” and “pertains only to specific areas within the county, and areas patently subject to the
governance of the County Board of Supervisors, i.e., its parks and recreation areas.”); Hunters,
(Footnote continued on next page…)

                                            DRP - 12
               The majority takes an absolutist view and ignores the distinction
between the general laws at issue in Ortiz and City of Philadelphia and the control of
what takes place on local government property that was at issue in Minich and Wolfe.
It also seems to ignore the principle that when interpreting our case law, just as when
interpreting a statute, we are to interpret them in a manner that makes them
consistent, not inconsistent. Because Minich and Wolfe remain good law, the trial
court had an apparent reasonable basis to deny the request for a preliminary
injunction.




(continued…)

Anglers & Trappers of Vermont, Inc. v. Winooski Valley Park District, 913 A.2d 391, 398-400 (Vt.
2006) (“It is consistent for the Legislature to prohibit direct regulation of hunting . . . , but also
entitle municipalities to manage their own lands in the interests of recreation and conservation . . . .
[T]he District was within its rights to place conditions on the use of its lands, which the Legislature
has explicitly authorized the District to manage in the interest of conservation, among other
interests.”) (internal citations omitted); Nordyke v. King, 44 P.3d 133, 138 (Cal. 2002) (can ban
guns on county property); Great Western Shows, Inc. v. County of Los Angeles, 44 P.3d 120, 127-28
(Cal. 2002) (same); Peter Garrett Gunsmith, Inc. v. City of Dayton, 98 S.W.3d 517, 520 (Ky. App.
2002) (“Without the power to control the location of gun shops and firearm dealers, a city could
find itself at the mercy of the firearms businesses that could begin operating wherever they choose,
for example, in the heart of a community surrounded by single-family homes.”); McMann v. City of
Tucson, 47 P.3d 672, 677 (Ariz. App. 2002) (“[T]he legislature’s primary concern, according to the
only legislative history of which we are aware, was to ensure that conduct legal in one municipality
is not illegal in another and that citizens have access to firearms for protection, not to prevent cities
from determining how to use their commercial property.”); id. at 678 (distinguishing Schneck v.
City of Philadelphia, 383 A.2d 227 (Pa. Cmwlth. 1978) and another decision because the “cases
involved ordinances regulating firearms throughout the respective local jurisdictions”); Kaluszka v.
Town of East Hartford, 760 A.2d 1282, 1286 n.1 (Conn. Super. 1999) aff’d, 760 A.2d 1269 (Conn.
App. 2000) (“Of course, the town, as owner, could restrict hunting on municipally owned
property.”); City of Tucson v. Rineer, 971 P.2d 207, 211 (Ariz. Ct. App. 1998) (park gun ban
“govern[s] conduct only within the city’s parks and prohibits firearms solely within those
boundaries, a legitimate and narrow local concern”).



                                              DRP - 13
            Accordingly, because the trial court had apparently reasonable grounds
to conclude that FOAC did not have a clear right to relief, I would affirm the trial
court’s denial of FOAC’s motion for a preliminary injunction.



                                     __________________________________
                                     DAN PELLEGRINI, Senior Judge




                                     DRP - 14
