          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jonathan Barris,                            :
                            Appellant       :
                                            :
               v.                           :   No. 218 C.D. 2016
                                            :   Argued: September 13, 2017
Stroud Township                             :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: November 17, 2017

               Jonathan Barris (Barris) appeals from an order of the Court of Common
Pleas of Monroe County (trial court), dated January 8, 2016, which sustained the
preliminary objections of Stroud Township (Township) and dismissed his six-count
complaint, challenging the legality of Stroud Township Ordinance No. 9-2011
(Ordinance).        The Ordinance regulates the discharge of firearms within the
Township and prescribes penalties for violations. The Ordinance provides, in
pertinent part:
               Section 1: Intent and Purpose.
                      Due to the density of the population of the
               Township of Stroud, it is necessary that the discharging of
               firearms be regulated for the protection of the public health
               and safety and general welfare of the residents, property
               owners, visitors and others within Stroud Township, and
              that the unauthorized discharge of firearms be
              prohibited.[1]
                     ....
              Section 3: Firing or discharge restricted.
                     It shall be unlawful to fire or discharge any firearm
              within the Township . . . except as provided in
              Section 4 Exceptions below.
              Section 4: Exceptions.
                     Exceptions to this Ordinance are as follows,
              however in no case shall a firearm be discharged before
              dawn or after dusk and/or within 150 yards of an adjacent
              occupied structure, camp or farm, except as provided
              under paragraphs A., B., indoor facilities under D., and E.
              below:
                     A. The use of firearms is permitted when employed
              by any duly appointed law enforcement officer in the
              course of his or her official duty.
                     B. The use of firearms is permitted when necessary
              as authorized under state and/or federal laws.
                     C. The use of firearms is permitted when hunting . .
              ..
                    D. The discharging of firearms shall be allowed on
              indoor or outdoor shooting ranges pursuant to applicable
              provisions of the Stroud Township Zoning Ordinance, as
              may be amended, under the supervision of the owner or
              occupant of that property or his or her duly appointed
              representative, provided that:
                           1. All shooting ranges shall be constructed
              and operated in a safe and prudent manner. If standards,
              regulations and/or recommended procedures for
              operation are established or promulgated by any
              recognized body, such as the National Rifle Association or
              the American Trap Shooting Association, then such

       1
         Pursuant to Section 1506 of the Second Class Township Code, Act of May 1, 1933,
P.L. 103, as amended, 53 P.S. § 66506, the Board of Supervisors is authorized to make and adopt
ordinances necessary for the proper management, care, and control of the township and the
maintenance of the health and welfare of the township and its citizens.


                                              2
            standards, regulations and/or procedures shall be
            adhered to.
                          2. Such range is issued zoning and occupancy
            permits by the township zoning officer, which permits shall
            specify the area or areas designated for shooting range
            purposes.
                   E. Farmers engaged in “normal agricultural
            operation” protecting their “agricultural commodity” from
            animal predators . . . .
                   F. Members of any organization incorporated under
            laws of this Commonwealth engaged in target shooting
            upon the grounds or property belonging to or under the
            control of such organization or affiliated club, such as the
            Pennsylvania Federation of Sportsmen’s Clubs, Inc.
                   ....
            Section 7: Violations and penalties.
                   Any person or persons discharging a firearm in
            violation of any of the provisions of this Ordinance shall
            be subject to a fine of not more than six hundred dollars
            ($600.00) plus court costs, including reasonable attorney
            fees. If the defendant neither pays nor timely appeals the
            judgment, the township may enforce the judgment
            pursuant to the applicable rules of civil procedure. Each
            day’s continued violation shall constitute a separate
            offense. In default in the payment of any fine imposed
            hereunder, the defendant shall be sentenced to undergo
            imprisonment for a period not exceeding thirty (30) days.

(Ordinance at 1-3; Reproduced Record (R.R.), Attachment B at 1-3 (footnote added)
(emphasis added)). Specifically, in his September 2015 complaint, Barris sought
declaratory and injunctive relief against the Township claiming that the Ordinance,
which effectively prohibits him from using a portion of his property within the
Township as a private shooting range, violates his rights under the Second




                                         3
Amendment to the United States Constitution2 and Article I, Section 21 of the
Constitution of Pennsylvania3 and is preempted by Section 6120 of the Pennsylvania
Uniform Firearms Act of 1995 (Firearms Act), as amended, 18 Pa. C.S. § 6120,4 and
Sections 1 and 2 of what is commonly referred to as the range protection statutes,
Act of June 2, 1988, P.L. 452, as amended, 35 P.S. §§ 4501-4502.5


    2
       The Second Amendment provides: “A well regulated Militia, being necessary for the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S.
CONST. amend. II.
    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.
    4
        Section 6120(a) of the Firearms Act 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.
    5
      Located in Chapter 23A of Title 35, Health and Safety, the range protection statutes pertain
to a noise pollution exemption for shooting ranges and provide:
         § 1. General immunity for noise
                  All owners of rifle, pistol, silhouette, skeet, trap, black powder or other
         ranges in this Commonwealth shall be exempt and immune from any civil action
         or criminal prosecution in any matter relating to noise or noise pollution resulting
         from the normal and accepted shooting activity on ranges, provided that the owners
         of the ranges are in compliance with any applicable noise control laws or ordinances
         extant at the time construction of the range was initiated. If there were no noise
         control laws or ordinances extant at the time construction of the range was initiated,
         then the immunity granted by this act shall apply to said ranges.
                        ....
35 P.S. § 4501.
         § 2. Nuisances and injunction
                The owners of the ranges shall not be subject to any action for nuisance, and
         no court in this Commonwealth shall enjoin the use or operation of the ranges on



                                                   4
              In response, the Township filed its preliminary objections in the nature
of a demurrer—i.e., challenging the legal sufficiency of Barris’s pleading. The trial
court sustained the Township’s preliminary objections and dismissed Barris’s
complaint in its entirety. The trial court concluded that the Ordinance was not
preempted under the Firearms Act because the Ordinance regulates only the
“discharge” of firearms within the Township, which the trial court concluded was a
subject omitted from the scope of the Firearms Act. Accordingly, the trial court
dismissed Counts I and II of the complaint. The trial court also concluded that the
Ordinance was not preempted under Pennsylvania’s range protection statutes
because those statutes only protect owners of ranges from civil actions or criminal
prosecutions relating to noise, noise pollution, and nuisance. Because the Ordinance
does not purport to regulate noise, noise pollution, or nuisance, the trial court
concluded that it was not in conflict with the range protection statutes and dismissed
Counts III and IV of the complaint.
              In dismissing Barris’s state and federal constitutional claims, the trial
court opined that neither the Second Amendment nor the Pennsylvania Constitution
have been construed “to grant an individual the right to discharge a firearm whenever
he or she pleases.” (Trial Ct. Op. at 20; R.R. 156.) Similarly, the trial court opined
that because the Ordinance regulates the discharge of firearms for the safety of the
Township’s citizens and Barris’s “firearms are not being taken away from him,” the
Ordinance passes muster under District of Columbia v. Heller, 554 U.S. 570 (2008)

       the basis of noise or noise pollution, provided that the owners of the ranges are in
       compliance with any applicable noise control laws or ordinances extant at the time
       construction of the range was initiated. If there were no noise control laws or
       ordinances extant at the time construction of the range was initiated, then the
       immunity granted by this act shall apply to said ranges.
35 P.S. § 4502.


                                                5
(Heller), wherein the United States Supreme Court held that a handgun ban violated
the rights conferred by the Second Amendment. (Trial Ct. Op. at 21; R.R. 157.) To
the extent Barris claims that the Ordinance restricts his ability to defend himself in
his home, the trial court noted that the Ordinance expressly allows discharge of
firearms for self-defense, as authorized under Pennsylvania law. (Trial Ct. Op. at 22;
R.R. 158.) Accordingly, the trial court dismissed Counts V and VI of the complaint.
               On appeal,6 Barris does not challenge the portions of the trial court
order that dismissed Counts I through IV of the complaint. Rather, Barris argues
that the trial court should have afforded him the opportunity to amend his complaint,
rather than dismiss it with prejudice, or that this Court should allow amendment “to
better aver facts contesting whether [the Ordinance], standing alone, passes
Constitutional muster.” 7 (Barris Br. at 4). Barris also challenges the trial court’s
analysis of his constitutional challenge to the Ordinance (Counts V and VI). We
will first address Barris’s challenge to the dismissal of Counts V and VI.
               Though difficult to glean from Barris’s brief on appeal, we discern two
components to his allegations of error with respect to the dismissal of Counts V and

    6
       This Court’s review of a court’s order sustaining preliminary objections and dismissing a
complaint is limited to determining whether the trial court abused its discretion or committed an
error of law. Petty v. Hosp. Serv. Ass’n of Ne. Pa., 967 A.2d 439, 443 n.7 (Pa. Cmwlth. 2009),
aff’d, 23 A.3d 1004 (Pa. 2011). When reviewing preliminary objections, the Court must regard
all well pleaded relevant and material facts as true, and may sustain preliminary objections only
when they are free and clear from doubt. Id.
    7
       Barris did not specifically ask the trial court for leave to amend his complaint. In his brief
to our Court, counsel for Barris states that he argued in his brief in response to the Township’s
preliminary objections that, if they were sustained, the remedy is not dismissal with prejudice but
with leave to file amended pleadings. He did not actually make such an argument in that brief, but
rather included similar language as part of his recitation of the general law concerning preliminary
objections. As the trial court indicated in its subsequent opinion filed pursuant to Pa. R.A.P. 1925,
Barris did not seek reconsideration of the dismissal of his action and first raised the amendment
issue in his concise statement of errors complained of on appeal.


                                                 6
VI of the complaint. The first is Barris’s contention that the trial court looked only
at the facial aspect of his constitutional challenge, ignoring his “as applied”
challenge. (Barris Br. at 8-9.) The second is Barris’s contention that he only seeks
to do what he lawfully and safely did before the passage of the Ordinance—
discharge his firearms on his property. (Barris Br. at 10, 18.) In response, the
Township defers to the trial court’s analysis of Barris’s constitutional challenge.
(Township Br. at 6 (“To the extent the court wishes to consider the underlying
firearms issues, the Township adopts the brief filed by the lower court by
reference.”).
                There is a strong presumption in the law that all legislative enactments
are constitutional. Caba v. Weaknecht, 64 A.3d 39, 49 (Pa. Cmwlth.), appeal denied,
77 A.3d 1261 (Pa. 2013). To overcome that burden, a challenger must show that the
legislative enactment “clearly, palpably, and plainly” violates either the United
States or Pennsylvania Constitutions. Pennsylvanians Against Gambling Expansion
Fund, Inc. v. Cmwlth., 877 A.2d 383, 393 (Pa. 2005) (emphasis omitted). There are
two ways to challenge the constitutionality of a legislative enactment: either the
enactment is unconstitutional on its face or as applied in a particular circumstance.
Johnson v. Allegheny Intermediate Unit, 59 A.3d 10, 16 (Pa. Cmwlth. 2012) (en
banc). The facial challenge is the more difficult. To prevail, the challenger must
show that “no set of circumstances exist under which the [enactment] would be
valid.” Clifton v. Allegheny Cnty., 969 A.2d 1197, 1222 (Pa. 2009); see also
Peake v. Cmwlth., 132 A.3d 506, 517 (Pa. Cmwlth. 2015) (en banc) (adopting
“plainly legitimate sweep” standard for evaluating facial constitutional challenges).
An as-applied attack, by contrast, does not challenge the enactment as written, but
only as applied to a particular person under a particular set of circumstances. Caba,


                                            7
64 A.3d at 50; see also Zedonis v. Lynch, 233 F. Supp. 3d 417 (M.D. Pa. 2017)
(setting forth framework for evaluating as-applied Second Amendment challenges).
In either type of challenge, courts must evaluate the enactment’s constitutionality by
applying the appropriate level of scrutiny—strict, intermediate (or heightened), or
rational basis.
             Read in the light most favorable to Barris, Counts V and VI of the
complaint can fairly be read as setting forth both facial and as-applied constitutional
challenges to the Ordinance under both the Second Amendment and Article I,
Section 21 of the Constitution of Pennsylvania. As noted above, in its opinion the
trial court cited judicial opinions for the general proposition that the right to bear
arms under the United States and Pennsylvania Constitutions is not unlimited. See,
e.g., Heller; Perry v. State Civil Serv. Comm’n (Dep’t of Labor and Indus.),
38 A.3d 942, 955 (Pa. Cmwlth. 2011).          The trial court then rejected Barris’s
constitutional challenge for two reasons: (1) the Ordinance does not take Barris’s
firearms away; and (2) the Ordinance expressly authorizes Barris to use his firearms
for self-defense. The trial court, however, failed to conduct any constitutional
analysis of the gist of Barris’s claim—i.e., that the Ordinance, which restricts his
ability to practice firing his firearms on his property (an activity that he lawfully
engaged in prior to the passage of the ordinance at issue), unconstitutionally
infringes on his rights under both the Second Amendment and Article I,
Section 21 of the Constitution of Pennsylvania either facially or as applied.
             Because the trial court’s opinion in support of its dismissal of Counts V
and VI of the complaint lacked the necessary constitutional analysis, we must vacate
the portion of the trial court’s order striking Counts V and VI of the complaint and
remand to the trial court to further consider Barris’s constitutional challenges. As we


                                          8
are remanding the matter, we also direct the trial court on remand to afford Barris a
reasonable period within which to file an amended complaint with respect to
Counts V and VI of his complaint only.8




                                           ____________________________________
                                           P. KEVIN BROBSON, Judge




    8
      Should Barris file an amended complaint, the pending preliminary objections would become
moot, although we would anticipate that the Township would renew its demurrer by way of
preliminary objections to the amended complaint.


                                              9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jonathan Barris,                           :
                         Appellant         :
                                           :
            v.                             :   No. 218 C.D. 2016
                                           :
Stroud Township                            :


                                     ORDER

            AND NOW, this 17th day of November, 2017, the order of the Court of
Common Pleas of Monroe County (trial court), dated January 8, 2016, is hereby
VACATED, in part. Paragraph 5 of the order, sustaining Stroud Township’s
demurrer to Counts V and VI of the complaint is VACATED, and the matter is
REMANDED to the trial court for further proceedings consistent with the
accompanying opinion.

            Jurisdiction relinquished.




                                         ____________________________________
                                         P. KEVIN BROBSON, Judge
