J-S50004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM ILGENFRITZ                                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

PENNSYLVANIA STATE POLICE

                           Appellant                  No. 2092 MDA 2015


                Appeal from the Order Entered November 4, 2015
           in the Court of Common Pleas of York County Civil Division
                          at No(s): 2014-SU-004489-49

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 22, 2016

        The Pennsylvania State Police (“PSP”) appeals from the order of the

York County Court of Common Pleas granting Appellee William Ilgenfritz’s

application to restore his firearm rights. The PSP claims that the trial court

lacked jurisdiction to consider Appellee’s petition and erred in finding

Appellee’s prior misdemeanor conviction did not restrict his firearm rights

under federal law.1 We vacate the order.

        On December 28, 2010, Appellee was charged in Mifflin County with

driving under the influence (“DUI”)—incapable of safely driving, second

offense, see 75 Pa.C.S. § 3802(a)(1), DUI—highest rate of alcohol, second

offense, see 75 Pa.C.S. § 3802(c), and careless driving, see 75 Pa.C.S. §


*
    Former Justice specially assigned to the Superior Court.
1
  As indicated below, we have reordered the questions presented in this
appeal.
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3714. On March 28, 2011, Appellee entered a guilty plea to one count of

DUI (“2011 conviction”), a second offense.        That same day, the Mifflin

County trial court sentenced him to three years’ intermediate punishment

(“IP”), to be served in York County, his place of residence.        The Mifflin

County docket initially indicated that Appellee pleaded guilty to a violation of

Section 3802(a)(1), and the Section 3802(c) and summary traffic charges

were “nolle prossed.”2

      In June 2014, after the IP sentence expired, Appellee attempted to

purchase a firearm and completed a form indicating that he had not been

convicted of a crime for which the judge could have imprisoned him for more

than one year.    The PSP conducted an instant       background check. 3    The

PSP’s initial criminal history report listed Appellee’s 2011 conviction as a

violation of Section 3802(a)(1), graded as first-degree misdemeanor and the

sentence of three years’ IP.    The PSP ultimately issued a denial, asserting

that Appellee’s 2011 conviction disqualified him from possessing a firearm.4

Sometime after December 1, 2014, the PSP amended its criminal history

2
   A conviction for Section 3802(c), as a second offense, was graded as a
first-degree misdemeanor carrying a maximum sentence of five years. See
75 Pa.C.S. § 3803(b)(4); see also 18 Pa.C.S. § 1104(1). A conviction for
Section 3802(a)(1), was graded as a third-degree misdemeanor and carried
a maximum sentence of six months. See 75 Pa.C.S. § 3803(a)(1).
3
  The PSP is responsible for the administration of “PICS,” the Pennsylvania
Instant Check System database. 37 Pa. Code § 33.102.
4
 The PSP separately charged Appellee with making false statements. Those
charges were dismissed at a preliminary hearing on October 29, 2014.



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records to indicate that Appellee pleaded guilty to a violation of Section

3802(c).5

      On December 22, 2014, Appellee filed the “Petition to Restore Firearm

Rights Pursuant To 18 Pa.C.S. § 6105(f),” which gives rise to this appeal.

Appellee served copies of his petition to the PSP and the York County District

Attorney’s office.   Appellee asserted he pleaded guilty to a violation of

Section 3802(a)(1), which was improperly graded as a first-degree

misdemeanor. Appellee’s Pet. to Restore Firearm Rights, 12/22/14, at ¶ 3.

He also averred that the PSP’s criminal history record “does not include any

offenses which would bar him from possessing a firearm.” Id. at ¶ 16.

      On October 8, 2015, the PSP filed an answer and new matter on the

day of the hearing on Appellee’s petition.        The PSP maintained that

Appellee’s 2011 conviction involved a violation of Section 3802(c), and a

firearm disability arose under federal law, specifically, 18 U.S.C. §

922(g)(1).   According to the PSP, Appellee could not seek relief under 18

Pa.C.S. § 6105, and should have challenged its determination under 18

Pa.C.S. § 6111.1, or sought a clarification or correction of the record in the

Mifflin County Court of Common Pleas.

      At the October 8, 2015 hearing, the parties agreed that Appellee would

be barred from possessing a firearm if he pleaded guilty to a violation of


5
  The Mifflin County docket also currently reflects that Appellee pleaded
guilty to a violation of Section 3802(c).



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Section 3802(c). N.T., 10/8/15, at 4-5. Appellee’s counsel argued that the

2011 conviction involved a violation of Section 3802(a)(1), which would not

affect Appellee’s firearm rights. Id. at 4.      Appellee testified that he was

assured his 2011 conviction would not result in a firearm disability and he

would not have pleaded guilty had he known the conviction would result in a

disability. Id. at 20.

        The PSP called Barry Palakovic, a legal assistant supervisor with the

PSP’s PICS Challenge Unit. Id. at 43. Palakovic testified that the three-year

IP sentence on the 2011 conviction “sen[t] up a red flag[,]” because the

sentence would be illegal for the listed conviction of Section 3802(a)(1). Id.

at 46. Palakovic indicated that Appellee challenged the PSP’s denial, after

which his unit contacted the Mifflin County Court of Common Pleas. Id. The

court transmitted to the PSP a “plea form” bearing a handwritten notation

that Appellee pleaded guilty to a violation of Section 3802(c). 6          Id.




6
    The “plea form” is an abbreviated written colloquy, which read:

           Now, 3/29 [handwritten], 2010 2011 [handwritten
           alteration to year], I the undersigned Defendant, being
           advised of the charge(s) against me, the consequences of
           conviction, including the permissible range of sentence
           and/or fine, and my constitutional rights, including trial by
           jury, presumption of innocence, and right to counsel, do
           hereby knowingly, voluntarily and intelligently enter the
           pleas stated above my signature below.

           PLEA: Guilty – DUI 3802(c) ct II [handwritten]



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According to Palakovic, the PSP thereafter denied Appellee’s challenge,

concluding that the 2011 conviction carried a federal firearm disability, and

began amending its records.      Id.   Appellee did not take an administrative

appeal from the PSP’s denial of his challenge.

      The court concluded the hearing, but held the record open for the

parties to submit additional evidence.       Appellee filed the transcript of the

guilty plea and sentencing hearing from Mifflin County.        The PSP did not

object to the admission of the transcript, but suggested that the transcript

supported its position Appellee pleaded guilty to a violation of Section

3802(c).

      On November 9, 2015, the trial court granted Appellee’s petition and

directed:

           The right to possess, use, control, sell, transfer, or
           manufacture, and obtain a license to possess, use, control,
           sell, transfer, or manufacture a firearm is hereby restored
           for [Appellee].

Order, 11/9/15.

      The PSP timely appealed.         On December 22, 2015, the trial court

ordered the filing of a Pa.R.A.P. 1925(b) statement. The PSP’s Rule 1925(b)




Plea, stamped as filed 4/1/11. Appellee acknowledged he signed a plea
form, but did not recall the handwritten entries on the above form when he
signed it. N.T. at 33-34.




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statement was timely filed7 and served “by first class mail and electronic

means” on the presiding judge.      Although the PSP did not comply with a

local rule for serving the trial court through the Administrative Office of the

York County Courts, the court belatedly discovered the document in its mail

and filed a responsive Rule 1925(a) opinion in support of affirmance.8

      The PSP presents two questions for review, which we have reordered

as follows:

         Did the trial court lack jurisdiction to grant Appellee relief
         in this case?

         Did the trial court err when it determined [Appellee] was
         not convicted of a first degree misdemeanor and therefore
         not prohibited from purchasing or possessing firearms?

Appellant’s Brief at 4.

      The PSP first argues that the trial court lacked jurisdiction to restore

Appellee’s firearms rights under Sections 6105(f) and 6105.1, because his

2011 conviction did not disable his rights under Pennsylvania law or trigger

“any of th[e] threshold requirements” for restoration under Pennsylvania

law. Id. at 8-10. It argues that Appellee was instead required to challenge

the accuracy of its PICS record. Id. at 11 (citing 18 Pa.C.S. § 6111.1(e)).

7
  The PSP’s statement was accompanied by a certificate of mailing dated
January 12th. See Pa.R.A.P. 1925(b)(1).
8
  Appellee asserts that the PSP’s claims on appeal should be deemed waived
based on its noncompliance with the local rules of serving the trial court.
Appellee’s Brief at 5-6. We conclude that the PSP substantially complied
with Rule 1925’s service requirement, see Pa.R.A.P. 1925(b)(1), and decline
to find waiver.



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It also argues that the Mifflin County District Attorney was a necessary

party, and Appellee’s failure to provide notice to or join the Mifflin County

District Attorney was fatal to the trial court’s jurisdiction.      Id. For the

reasons that follow, we conclude that the court was competent to consider

the petition, but that it erred in granting the relief requested.

      The PSP’s arguments raise questions of law over which our standard of

review is de novo and our scope of review is plenary. J.C.B. v. Pa. State

Police, 35 A.3d 792, 794 (Pa. Super. 2012).

      The Pennsylvania Supreme Court has noted:

         [s]ome litigants, while believing they are raising a claim of
         subject matter jurisdiction, are actually posing a challenge
         to the tribunal’s authority, or power, to act. See Riedel v.
         Human Relations Comm’n of Reading, 559 Pa. 34, 739
         A.2d 121, 124 (1999). This confusion between the
         meaning of the terms “jurisdiction” and “power” is not
         surprising. While the terms are not synonymous, they are
         often used interchangeably by judges and litigants alike.
         Id. In Riedel, we teased out the distinctions between
         these terms, explicating that

            [j]urisdiction relates solely to the competency of the
            particular court or administrative body to determine
            controversies of the general class to which the case
            then presented for its consideration belongs. Power,
            on the other hand, means the ability of a decision-
            making body to order or effect a certain result.

Commonwealth v. Mockaitis, 834 A.2d 488, 495 (Pa. 2003) (some

citations omitted).

      Further,




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           As a general rule, an indispensable party is one whose
           rights are so connected with the claims of the litigants that
           no decree can be made without impairing its rights. . . . .

           The absence of an indispensable party goes absolutely to
           the court’s jurisdiction. If an indispensable party is not
           joined, a court is without jurisdiction to decide the matter.
           The absence of an indispensable party renders any order
           or decree of the court null and void. The issue of “the
           failure to join an indispensable party” cannot be waived.

Sabella v. Appalachian Dev. Corp., 103 A.3d 83, 90 (Pa. Super. 2014)

(citation omitted), appeal denied, 114 A.3d 417 (Pa. 2015).

        Under Pennsylvania law, Section 6105(a) imposes several disabilities

on firearms rights triggered by Section 6105(b) and (c).9 Section 6105(b)

sets forth thirty offenses for which a conviction will give rise to a disability

on an individual’s firearms rights. See 18 Pa.C.S. § 6105(a)(1), (b). DUI is

not listed as a disqualifying offense.       See id. § 6105(b).        Additionally,

Section 6105(c) establishes nine criteria which give rise to a disability.        A

disability will be imposed for “[a] person who has been convicted of driving

under the influence of alcohol or controlled substance as provided in 75


9
    Section 6105(a)(1) sets forth the firearm disability as follows:

           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.

18 Pa.C.S. § 6105(a)(1).



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Pa.C.S. § 3802 . . . or the former 75 Pa.C.S. § 3731, on three or more

separate occasions within a five-year period.”             Id. § 6105(c)(3)

(emphasis added).     “For the purposes of [Section 6105(c)(3)] only, the

prohibition of subsection (a) shall only apply to transfers or purchases of

firearms after the third conviction.” Id.

      Federal law, however, provides that it is unlawful for any person “who

has been convicted in any court of, a crime punishable for a term exceeding

one year” to possess a firearm. 18 U.S.C. § 922(g)(1). For the purposes of

a “State offense” graded as a misdemeanor, “a crime punishable for a term

exceeding one year” does not include an offense carrying a term of

imprisonment of two years or less. Id. § 921(a)(20)(B). Moreover,

         [w]hat constitutes a conviction of such a crime shall be
         determined in accordance with the law of the jurisdiction in
         which the proceedings were held. Any conviction which
         has been expunged, or set aside or for which a
         person has been pardoned or has had civil rights
         restored shall not be considered a conviction for
         purposes of this chapter, unless such pardon,
         expungement, or restoration of civil rights expressly
         provides that the person may not ship, transport, possess,
         or receive firearms.

Id. § 921(a)(20) (emphasis added). The phrase “restoration of civil rights”

requires a deprivation and reinstatement of an individual’s full civil rights.

See Logan v. United States, 552 U.S. 23, 25 (2007) (“we hold that the

words ‘civil rights restored’ do not cover the case of an offender who lost no

civil rights”); Commonwealth v. Stiver, 50 A.3d 702, 705 (Pa. Super.

2012) (“the state restoration must include an unconditional restoration of


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firearm rights as well as the right to vote, the right to seek and hold public

office and the right to serve on a jury” (citations omitted)).

      There are several Pennsylvania statutes for removing a firearm

disability or challenging the PSP’s determination of disability. 10   First, for

disabilities imposed under Section 6105(a), (b), or (c), an applicant may

seek restoration of his rights under Section 6105(d), (e), or (f).      See 18

Pa.C.S. § 6105(d)-(f).       Section 6105(d), (e), and (f) establish four

categories of applications for relief, as well as the procedures and standards

for considering the application.11   Id.   However, restoration under Section

6105 is limited to the disabilities imposed under that section, and a court

lacks authority to restore the applicant’s rights from a concurrent federal

disability. Pa. State Police v. Paulshock, 836 A.2d 110, 115 (Pa. 2003).

Further, it is axiomatic that to seek relief under Section 6105(d), (e), or (f),

there must be a disability under Section 6105(a).          Commonwealth v.

Sherwood, 859 A.2d 807, 810 (Pa. Super. 2004).

10
  An expungement or pardon under Pennsylvania law would also serve to lift
a firearm disability. The federal statute also provides for a means of
challenging a disability. See 18 U.S.C. § 925(c). However, it appears that
the United States Congress’s ban of the use of appropriations to investigate
or act upon applications for relief under that Section remains in place. See
Schrader v. Holder, 704 F.3d 980, 982 (D.C. Cir. 2013).
11
   Appellee’s petition seeking relief under Section 6105(f) was defective in
form. Section 6105(f) applies to two categories of persons subject to
Section 6105(a): (1) persons adjudged incompetent or who have been
involuntarily committed to a mental health institution, see 18 Pa.C.S. §
6105(c)(4), (f)(1); and (2) persons subject to a protection from abuse order
that required the relinquishment of firearms, see id. § 6105(c)(6), (f)(2).



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      Second, Section 6105.1 states: “a person convicted of a disabling

offense may make application to the court of common pleas in the county

where the principal residence of the applicant is situated for restoration of

firearms rights.”    18 Pa.C.S. § 6105.1(a).      A “disabling offense” under

Section 6105.1 means, in relevant part:

         A conviction for any offense which:

            (1) resulted in a Federal firearms disability and is
            substantially similar to either an offense currently
            graded as a crime punishable by a term of
            imprisonment for not more than two years or conduct
            which no longer constitutes a violation of law; and

            (2) was a violation of either of the following:

                    (i) the former act of May 1, 1929 (P.L.905,
                    No.403), known as The Vehicle Code, or the
                    former act of April 29, 1959 (P.L. 58, No. 32),
                    known as The Vehicle Code; or

                    (ii) the former act of June 24, 1939 (P.L. 872, No.
                    375), known as the Penal Code.

18 Pa.C.S. § 6105.1(e) (emphasis added). Section 6105.1, unlike Section

6105, expressly provides for a full restoration of civil rights by the court of

common pleas. See id. § 6105.1(e) (defining “restoration of firearm rights”

as “relieving any and all disabilities with respect to a person’s right to own,

possess, use, control, sell, purchase, transfer, manufacture, receive, ship or

transport firearms, including any disabilities imposed pursuant to this

subchapter. The phrase shall also mean the restoration of the right to vote,

to hold public office and to serve on a jury”); Stiver, 50 A.3d at 706 n.1.



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Additionally, Section 6105.1, unlike Section 6105, requires notice be

provided to, inter alia, “the district attorney of the county where the

disabling offense occurred” and states that the prosecuting district attorney,

the PSP, and the district attorney in which the application is filed “may at

their option, be parties to the proceeding.” See 18 Pa.C.S. § 6105.1(b)(1);

see also id. § 6105(e)(1) (generally requiring notice to, inter alia, the PSP

and district attorney in county where application filed), (f)(2) (requiring

notice to petitioner for a protection from abuse order).

        Third, Section 6111.1(e) sets forth the right and procedures for

challenging the PSP’s records and its determinations of a disability. 12   18


12
     Section 6111.1(e), in full states:

           (e) Challenge to records.—

              (1) Any person who is denied the right to receive, sell,
              transfer, possess, carry, manufacture or purchase a
              firearm as a result of the procedures established by this
              section may challenge the accuracy of that person’s
              criminal history, juvenile delinquency history or mental
              health record pursuant to a denial by the instantaneous
              records check by submitting a challenge to the
              Pennsylvania State Police within 30 days from the date
              of the denial.

              (2) The Pennsylvania State Police shall conduct a review
              of the accuracy of the information forming the basis for
              the denial and shall have the burden of proving the
              accuracy of the record. Within 20 days after receiving a
              challenge, the Pennsylvania State Police shall notify the
              challenger of the basis for the denial, including, but not
              limited to, the jurisdiction and docket number of any
              relevant court decision and provide the challenger an



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Pa.C.S. § 6111.1(e).      Section 6111.1(e)(1) permits an individual to

challenge “a denial by the instantaneous records check by submitting a

challenge to the Pennsylvania State Police within 30 days from the date of

the denial.” 18 Pa.C.S. § 6111.1(e)(1). If the PSP determines the challenge

is invalid, the individual has a right to appeal to an administrative law judge

and then to the Commonwealth Court. Id. § 6111.1(e)(3)-(4).

      Preliminarily, we conclude that the trial court as a general matter has

“jurisdiction” to consider a petition/application to restore firearm rights.

Sections 6105(d), (e), and (f), and 6111.1 provide the court of common

pleas in the county where the applicant resides with competence to inquire

upon an application for relief from a firearm disability.   See 18 Pa.C.S. §

6105(d)-(f), 6111.1(a). Moreover, no provision in Section 6105(d), (e), or

            opportunity to provide additional information for the
            purposes of the review. The Pennsylvania State Police
            shall communicate its final decision to the challenger
            within 60 days of the receipt of the challenge. The
            decision of the Pennsylvania State Police shall include
            all information which formed a basis for the decision.

            (3) If the challenge is ruled invalid, the person shall
            have the right to appeal the decision to the Attorney
            General within 30 days of the decision. The Attorney
            General shall conduct a hearing de novo in accordance
            with the Administrative Agency Law. The burden of
            proof shall be upon the Commonwealth.

            (4) The decision of the Attorney General may be
            appealed to the Commonwealth Court by an aggrieved
            party.

18 Pa.C.S. § 6111.1(e).



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(f) requires notice to the district attorney of the county in which the

predicate offense occurred. See id. § 6105(d)-(f).     Section 6105.1 requires

notice to the district attorney where the disabling offense occurred and

permits that district attorney to be a party.    However, when resolving the

collateral effects of a conviction such as a firearm disability, we discern no

basis to conclude that interests of the prosecuting district attorney are so

connected to the application that his or her rights would be impaired. See

Sabella, 103 A.3d at 90.

      Nevertheless, a review of the trial court’s order and the record reveals

that the gist of Appellee’s petition was not a petition to restore his rights,

but for a determination that his 2011 conviction did not carry a firearm

disability. Appellee’s Pet. to Restore Firearm Rights at ¶¶ 3, 16. To do so,

he sought factual findings and conclusions that (1) he pleaded guilty to a

violation of Section 3802(a)(1), as initially docketed in the Mifflin County,

and indicated in the PSP’s criminal record history, (2) the PSP erred in

determining that a disability arose from a guilty plea to a violation of Section

3802(c), and (3) the PSP erred in amending its criminal history record.

Because the General Assembly has provided a separate procedure for

challenging the PSP’s determination of disability when a denying a purchase

of firearms, the trial court should have construed the action as one against

the PSP and not a petition to restore firearm rights.       See 18 Pa.C.S. §

6111.1. Thus, it appears the PSP was correct in suggesting the more proper



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course for Appellee was to challenge its determination of disability through

the procedures set forth in Section 6111.1, or seek clarification in the Mifflin

County Court of Common Pleas.

      In any event, we also agree with the PSP that the trial court lacked the

power to grant relief under Sections 6105 or 6105.1. See Mockaitis, 834

A.2d at 495. Appellee’s 2011 conviction for DUI, regardless of the grade of

the   offense    or   the     maximum    possible   sentence, did not      trigger   a

Pennsylvania disability under Section 6105(a). Cf. 18 Pa.C.S. § 6105(c)(3)

(requiring three DUI convictions within five years to trigger a Pennsylvania

disability).    Rather, Appellee’s alleged disability would arise solely out of

federal law if he was convicted of a violation of Section 3802(c), as a second

offense. See 18 U.S.C. § 922(g)(1) (establishing federal disability based on

possible length of sentence for State offense); 18 Pa.C.S. § 6105(c)(3)

(establishing    disability    under    Section   6105(a)   based    on   three   DUI

convictions within five years); see also 75 Pa.C.S. § 3803(b)(4). Further,

the conviction was not a violation of the former Vehicle Codes of 1929 and

1939, which is a requirement for a “disabling offense” under Section 6105.1.

See 18 Pa.C.S. § 6105.1(e)(2)(i).         Accordingly, “[t]he trial court . . . should

have declined to afford Appellee relief.” See Sherwood, 859 A.2d at 810.

      In light of the foregoing, we decline to review the trial court’s

determination that Appellee pleaded guilty to violation of Section 3802(a)(1)

and must vacate its order granting Appellee’s petition.



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     Order vacated. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/22/2016




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