IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police, :

Petitioner :

: No. 841 C.D. 2015

v. : Submitted: October 2, 2015

:

Richard Brandon, :

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: November 24, 2015

In this appeal, the Pennsylvania State Police (PSP) asks whether an 

Administrative Law Judge (ALJ) in the Office of Attorney General (OAG) erred in 

ordering the PSP to remove from the Pennsylvania Instant Check System (PICS) 

database, as it pertains to Richard Brandon (Brandon),1the disability imposed by 

Section 6105(c)(4) of the Uniform Firearms Act (UFA), 18 Pa. C.S. §6105(c)(4) 

(generally stating that an individual who has been involuntarily committed to a 

mental institution for inpatient care and treatment under Sections 302, 303 or 304 

of the Mental Health Procedures Act2(MHPA), may not possess a firearm).

 

1 No party sought to amend the caption to use only Brandon’s initials. Indeed, in his 

multiple filings in this case, Brandon refers to himself by name.

2 Act of July 9, 1976, P.L. 817, as amended, 50 P.S. §§7302, 7303, 7304.
2

In particular, the PSP asserts it met its burden of proving Brandon was 

properly denied a license to carry concealed firearms by presenting records from a 

county mental health department and other supporting documentation, which 

indicates Brandon was twice involuntarily committed under Section 302 of the 

MHPA. Because we are unable to conduct effective appellate review, we vacate 

the ALJ’s order and remand to the OAG for further consideration.

In September 2013, Brandon applied for a license to carry a firearm 

with the Butler County Sheriff’s Office, prompting a search of the PICS database. 

Brandon’s application was denied after a search of the PICS database revealed two 

purported involuntary commitments. After the PSP denied his challenge to the 

PICS information based on mental health commitments in 1987 and 1994, Brandon 

appealed to the OAG. A hearing ensued before the ALJ.

The ALJ’s decision contains no factual findings. As such, we set 

forth the following summary of the evidence presented at the hearing. The PSP 

presented the testimony of Marlin W. Rose (Rose), the Mental Health Emergency 

Coordinator for Butler County (County), who attends all mental health 

commitment hearings and coordinates those proceedings for the County. Rose 

explained his office is instrumental in obtaining the warrants necessary for 

proceedings under Section 302 of the MHPA. Rose identified two County Incident 

Report Emergency Services (IRES) forms for Brandon. The IRES form is a 

document regularly generated by Rose’s office. The IRES forms are regularly 

submitted by the County’s mental health delegates to Rose’s office.
3

As to the two IRES forms pertaining to Brandon, Rose testified that

one form pertained to an incident in June 1994, which revealed Brandon was 

involuntarily committed under Section 302 of the MHPA. The 1994 IRES form 

indicated that PSP Trooper Daniel Herr petitioned for the Section 302 involuntary 

commitment, signifying he considered Brandon a clear and present danger to 

himself and others. Rose confirmed that his office would not complete an IRES 

form indicating a Section 302 disposition unless a physician certified that the 

individual was severely mentally disabled.

In addition, Rose explained, his office had a second IRES form 

pertaining to Brandon, which was generated in 1987. The 1987 IRES form

indicated that Brandon was subject to a Section 302 involuntary commitment and 

transferred to a medical facility for treatment. Rose again confirmed that the 

disposition on the 1987 IRES form would not indicate a Section 302 involuntary 

commitment unless a physician certified Brandon was severely mentally disabled 

and recommended inpatient care.

On cross-examination, Rose explained the IRES form is completed 

after an entire incident transpired. Rose acknowledged the County’s mental health 

department did not have any other documents, including the underlying Section 

302 petition, pertaining to Brandon. Rose explained that during the timeframe at 

issue, his office would not receive a copy of the actual Section 302 petition; 

however, the process subsequently changed. Rose indicated he had no knowledge 

of any entity having a Section 302 petition for Brandon. On re-direct examination, 
4

Rose testified his office has an obligation to notify PSP whenever an individual is 

involuntarily committed.

In response to a question from the ALJ, Rose further testified it was a 

“possibility” that a Section 302 petition for Brandon could be found at either one 

of the two facilities that treated him for the 1987 and 1994 incidents. Reproduced 

Record (R.R.) at 44a. The ALJ then admitted into evidence the two IRES forms 

pertaining to Brandon.

The PSP also presented the testimony of Christopher Clark (Clark), 

who is employed by the PSP in the PICS Challenge Section. PSP’s PICS 

Challenge Section handles all the appeals from denials of firearm purchases or 

licenses to carry firearms. Clark explained Brandon was initially denied a license 

to carry a firearm based on two mental health commitments. Clark confirmed the 

PSP received notice of both of Brandon’s involuntary commitments, which were 

reflected in the PSP’s mental health database.

The PSP also presented a police report indicating that Brandon was 

transported to Butler Memorial Hospital for treatment and placed in the psychiatric 

wing after treatment. Brandon’s counsel objected on the basis of hearsay because

the police officer was not available to testify. However, the ALJ accepted the 

document and noted the objection. PSP’s counsel reiterated that he only sought to 

admit the brief portion of the police report that stated Brandon was transported to 

the hospital for treatment and placed in the psychiatric wing after treatment.
5

On cross-examination, Clark explained the notices pertaining to 

Brandon’s involuntary commitments did not indicate the dates the PSP received 

them because, for historical data prior to 1998, the PSP only received notices of the 

commitments. As a result, Clark did not know the exact date the PSP received the 

information concerning Brandon’s commitments; however, it appeared the PSP 

received the records in 1999 when the records were actually entered into the PSP’s 

database. Clark also confirmed he had no records of Brandon previously obtaining 

a license to carry a firearm. Clark further testified the PSP did not have any 

Section 302, 303 or 304 petitions for Brandon.

On re-direct examination, Clark explained the PSP did not receive 

Section 302 petitions from counties prior to 1998. Rather, transmission of that 

information became a requirement after the effective date of the PICS system. 

After that date, counties were required to transmit prior commitment information 

to the PSP. Further, in response to questions from the ALJ, Clark explained that an 

individual at the PSP inputs the data concerning involuntary commitments into the 

PICS database, and information can only be entered if the PSP receives a copy of 

an involuntary commitment from a hospital.

The PSP’s counsel also indicated that the PSP issued a subpoena for 

Brandon, seeking to present him as a witness in its case-in-chief. Brandon’s 

counsel objected on the ground that it was PSP’s burden to establish a Section 302 

petition existed, and it could not produce any such petition. Thus, Brandon’s 

counsel asserted the PSP could not meet its burden regardless of whether Brandon 

testified. Brandon’s counsel also objected on the ground the PSP began to 
6

criminally charge individuals for making false statements on forms when 

attempting to purchase a firearm or obtain a license to carry a firearm. As such, he 

objected on the ground that Brandon was asserting his Fifth Amendment privilege 

against self-incrimination as Brandon could be implicated by any testimony the

PSP sought to elicit. In response, the ALJ stated, because Brandon could 

potentially subject himself to criminal prosecution by testifying, he had a right to 

invoke his Fifth Amendment right not to do so.

The parties also presented oral argument in support of their positions.

Brandon’s counsel asserted there were no Section 302 petitions presented. He 

argued that in the absence of a Section 302 petition, the PSP previously admitted in 

another case that it could not meet its burden to establish an individual was 

involuntarily committed. Specifically, Brandon’s counsel asserted that in an 

earlier federal case, a deputy attorney general representing the PSP entered into a 

settlement agreement acknowledging that, absent a Section 302 petition, the PSP 

could not meet its burden. See R.R. at 82a-84a. Because the PSP produced no 

Section 302 petition here, Brandon maintained, it could not meet its burden.

In response, the PSP’s counsel explained that, in general, when the 

PSP creates a settlement agreement, the language of the agreement indicates it is 

not binding on the agency. Additionally, the PSP’s counsel argued that, based on 

the preponderance of the evidence standard applicable in this administrative 

agency proceeding, the PSP met its burden of proving Brandon was subject to two 

prior involuntary commitments.
7

Specifically, the PSP asserted that Rose testified counties do not 

report matters to PSP unless they involve 302 proceedings and involuntary 

commitments. And, counties wait until after the conclusion of a Section 302 

proceeding to do so. Here, the PSP’s counsel argued, there was a Section 302 

disposition as indicated on the two IRES forms. The PSP’s counsel further 

explained that, if this matter was before a federal or state trial court on an 

expungement matter, the outcome might be different; however, in an 

administrative agency proceeding such as the one at issue here, based on the

totality of the evidence, denial of Brandon’s appeal was appropriate.

A day after the hearing, the ALJ issued an order in which he denied 

Brandon’s appeal. Brandon subsequently filed an emergency motion for 

reconsideration and stay pending reconsideration in which he again asserted that, 

in the absence of a Section 302 petition, the PSP could not meet its burden of 

proving he was prohibited from obtaining a license to carry a firearm. The ALJ 

granted a stay pending reconsideration, and he directed the parties to file letter 

briefs in support of their positions.

After the submission of the briefs, the ALJ issued an order in which 

he sustained Brandon’s appeal. The PSP now petitions for review to this Court.3

 

3 After the PSP filed its petition for review to this Court, Brandon filed an application for 

summary relief, seeking dismissal of the PSP’s petition for review on the ground that the PSP 

sets forth no valid basis upon which to reverse of the ALJ’s decision. The undersigned denied 

Brandon’s motion in July 2015.
8

Generally, under Section 302 of the MHPA, an emergency mental 

examination of a patient may be undertaken where a physician certifies an 

examination is needed or an authorized county administrator approves a warrant 

for examination. R.H.S. v. Allegheny Cnty. Dep’t of Human Servs., Office of 

Mental Health, 936 A.2d 1218 (Pa. Cmwlth. 2007) (citing 50 P.S. §7302). A 

patient must be examined within two hours after arrival at a treatment facility. Id.

If the examination reveals the patient needs treatment, it must begin immediately. 

Id. If treatment is not necessary, the patient must be discharged. Id. In any event, 

the patient must be discharged within 120 hours unless it is determined further 

treatment is necessary or the patient voluntarily seeks additional treatment. Id.

Further, Section 6105 of the UFA states, in relevant part (with 

emphasis added):

(a) Offense defined.--

(1) A person who has been convicted of an offense enumerated 

in subsection (b), within or without this Commonwealth, 

regardless of the length of sentence or whose conduct meets the 

criteria in subsection (c) shall not possess, use, control, sell, 

transfer or manufacture or obtain a license to possess, use, 

control, sell, transfer or manufacture a firearm in this 

Commonwealth.

* * * *

(c) Other persons.--In addition to any person who has been 

convicted of any offense listed under subsection (b), the 

following persons shall be subject to the prohibition of 

subsection (a):

* * * *
9

(4) A person who has been adjudicated as an incompetent 

or who has been involuntarily committed to a mental 

institution for inpatient care and treatment under section 

302, 303 or 304 of the provisions of the act of July 9, 

1976 (P.L. 817, No. 143), known as the Mental Health 

Procedures Act. This paragraph shall not apply to any 

proceeding under section 302 of the [MHPA] unless the 

examining physician has issued a certification that 

inpatient care was necessary or that the person was 

committable.

18 Pa. C.S. §6105(a)(1), (c)(4).

On appeal, the PSP argues it met its burden of proving that Brandon 

was properly denied a license to carry concealed firearms by introducing the 

records from the County’s mental health department and other supporting 

documentation, which indicates Brandon was involuntarily committed under

Section 302 of the MHPA after examinations in 1987 and 1994. The PSP asserts 

the two IRES reports it submitted were intended to be a summation of the entire 

Section 302 incident. Further, Rose testified that the disposition portion of the 

report would indicate that there was a Section 302 involuntary commitment only if 

a doctor certified that Brandon was severely mentally disabled, i.e., a clear and 

present danger to himself or others, and in need of inpatient treatment. The PSP 

contends the fully executed involuntary commitments prompted the County to 

notify the PSP as it was required to do by statute. Thus, the PSP argues, Brandon 

was properly denied a concealed license to carry a firearm.

“On appellate review, we will affirm the decision of an administrative 

agency unless constitutional rights were violated, an error of law was committed, 

the procedure before the agency was contrary to statute, or any finding of fact 
10

made by the agency and necessary to support its adjudication is unsupported by 

substantial evidence.” D’Alessandro v. Pa. State Police, 937 A.2d 404, 409 (Pa. 

2007) (citing Section 704 of the Administrative Agency Law (AAL), 2 Pa. C.S. 

§704; Pa. Game Comm’n v. State Civil Serv. Comm’n (Toth), 747 A.2d 887 (Pa. 

2000)).

In City of Philadelphia v. Hinkle, 881 A.2d 22, 26 (Pa. Cmwlth. 

2005), this Court explained:

Under [the standard of review set forth in Section 

704 of the AAL], the General Assembly has only allowed 

courts to substitute their discretion for that of the agency 

where there is a violation of a constitutional right, where 

the decision is not in accordance with the law, or it is in 

violation of procedural rights guaranteed by the [AAL], 

and where there is no substantial evidence to support the 

agency decision. Any review of an agency decision must 

fall within one of those areas.

Further, “[i]ncluded in both the violation of constitutional rights and 

violation of the procedural rights guaranteed by the [AAL] is the requirement that 

an agency explain its decision. An agency is already obligated by federal due 

process to state reasons for its decision.” Hinkle, 881 A.2d at 26 (citing Goldberg 

v. Kelly, 397 U.S. 254 (1970)). Indeed, pursuant to Section 507 of the AAL: “All 

adjudications of a Commonwealth agency shall be in writing, shall contain 

findings and the reasons for the adjudication, and shall be served upon all parties or 

their counsel personally, or by mail.” 2 Pa. C.S. §507 (emphasis added).

Section 507 of the AAL requires that adjudications contain findings of 

fact that are “sufficiently specific to enable [a reviewing] court ... to pass upon 
11

questions of law.” In re: Petition for Formation of Independent Sch. Dist., 962 

A.2d 24, 28 (Pa. Cmwlth. 2008) (quoting Henderson v. Office of Budget, 537 A.2d 

85, 86 (Pa. Cmwlth. 1988)). Further, adjudications stating only that a party “failed 

to present evidence” to meet its burden do not comply with Section 507 of the 

AAL. Id.

Here, the ALJ’s order sustaining Brandon’s appeal states, in its 

entirety:

AND NOW THIS 15th day of May 2015, having heard 

the appeal of [Brandon], reviewing the briefs of counsel and 

applying applicable case law to the denial of relief by the 

[PSP], dated February 14, 2014 the request of [Brandon] for 

Relief is hereby SUSTAINED. [PSP] is hereby ordered to 

amend the PICS database within 30 days so as to remove, as it

pertains to [Brandon], the disability imposed by Subsection 

(c)(4) of Section 6105, 18 Pa. C.S. [§]6105 (c)(4). A petition 

for review of this decision in Commonwealth Court must be 

filed within 30 days of the date of this order.

R.R. at 85a.

The PSP argues that, contrary to the ALJ’s decision, it presented 

substantial evidence to prove that Brandon was properly disqualified from 

obtaining a license to carry concealed firearms. However, our review of this claim 

is problematic. To that end, the ALJ set forth no findings or reasons in support of 

his order, rendering it impossible for this Court to conduct appellate review of the 

ALJ’s adjudication. In the absence of any findings or reasons for the ALJ’s order, 

this Court is left to guess at the ALJ’s reasoning for sustaining Brandon’s appeal. 

This is particularly true here where, after hearing, the ALJ initially issued a 

decision dismissing Brandon’s appeal, and after reconsideration, issued a decision 
12

sustaining Brandon’s appeal, both without explanation. Further, in this case, the 

PSP, which bore the burden of proof,

4 was the only party to present evidence, and 

that evidence could support the grant or denial of Brandon’s appeal.

5

 As a result, 

 

4

See Section 6111.1(e)(3) of the UFA, 18 Pa. C.S. §6111.1(e)(3).

5 As set forth above, Section 6105(c)(4) of the UFA prohibits a person who was

involuntarily committed to a mental institution for inpatient care and treatment under Section 

302 of the MHPA from, among other things, possessing or obtaining a license to possess a 

firearm. 18 Pa. C.S. §6105(c)(4). This prohibition does not apply to any proceeding under 

Section 302 unless the examining physician issued a certification that inpatient care was 

necessary or that the person was committable. Id. However, the plain language of Section 

6105(c)(4) of the UFA does not require submission of the actual examining physician’s

certification. Id. Rather, the PSP could meet its burden of proof through the presentation of 

circumstantial evidence. See, e.g., A.B. v. Slippery Rock Area Sch. Dist., 906 A.2d 674 (Pa. 

Cmwlth. 2006). In A.B., this Court explained:

Circumstantial evidence has been defined as ‘evidence of 

one fact, or of a set of facts, from which the existence of the fact to 

be determined may reasonably be inferred,’ W. PAGE KEETON 

ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 

39, at 242 (5th ed. 1984) in contrast to direct evidence where there 

is direct eyewitness testimony of the ultimate fact to be 

determined. Monaci v. State Horse Racing Commission, 717 A.2d 

612 (Pa. Cmwlth. 1998). The inference from which the conclusion 

is derived ‘is simply a clear, logical, reasonable and natural 

conclusion which the trier of fact may embrace or reject based on 

the evidence in the case.’ Bixler v. Hoverter, 491 A.2d 958, 959 

(Pa. Cmwlth. 1985); see also Commonwealth v. Shaffer, 447 Pa. 

91, 288 A.2d 727 (1972) (‘an inference is no more tha[n] a logical 

tool enabling the trier of fact to proceed from one fact to another.’) 

The facts presented are the foundation of any inference and will 

determine whether that inference is reasonable. Ellis v. City of 

Pittsburgh, 703 A.2d 593 (Pa. Cmwlth. 1997). A party is not 

entitled to an inference of fact which amounts to nothing more than 

a guess or conjecture. Flaherty v. Pennsylvania Railroad Co., 426 

Pa. 83, 231 A.2d 179 (1967). When properly proved, 

circumstantial evidence is entitled to as much weight as direct 

evidence. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 

630 (1991).

Id. at 677 n.8. Additionally, the level of proof required to establish a case before the ALJ is the 

same degree of proof as used in most civil proceedings, i.e., a preponderance of the evidence.

(Footnote continued on next page...)
13

we must vacate the ALJ’s May 2015 order and remand for an adjudication that 

contains findings and reasons for the decision. 2 Pa. C.S. §507; see Independent 

Sch. Dist. (where secretary’s decision on party’s petition to transfer portion of 

borough’s school-related services from one school district to another contained no 

specific findings regarding the evidence, but rather merely set forth conclusory 

findings indicating party did not submit sufficient information to meet its burden,

remand was necessary for adjudication that complied with 2 Pa. C.S. §507); see

also Turner v. Civil Serv. Comm’n, 462 A.2d 306 (Pa. Cmwlth. 1983) (where

commission’s decision merely concluded that police officer’s dismissal was for 

just cause without any findings as to which testimony was found credible, which 

charges against the officer were substantiated by the evidence, or what facts 

constituted just cause for dismissal from employment, remand was necessary for 

findings of fact consistent with Section 555 of the Local Agency Law, 2 Pa. C.S. 

§5556). We leave to the thoughtful discretion of the ALJ to determine whether to 

re-open the record for additional circumstantial evidence, such as hospital records.

 

ROBERT SIMPSON, Judge

 

(continued...)

D’Alessandro v. Pa. State Police, 937 A.2d 404 (Pa. 2007). A preponderance of the evidence is 

“such proof as leads the fact-finder ... to find that the existence of a contested fact is more 

probable than its nonexistence.” A.B., 906 A.2d at 677 n.5 (quoting Sigafoos v. Pa. Bd. of Prob.

& Parole, 503 A.2d 1076, 1079 (Pa. Cmwlth. 1986)).

Nonetheless, as explained above, because the ALJ did not set forth findings or reasons for 

his adjudication here, we are constrained to remand this matter. See 2 Pa. C.S. §507.

6

The language of Section 555 of the Local Agency Law is identical to the language of 

Section 507 of the Administrative Agency Law, 2 Pa. C.S. §507, which is at issue here.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police, :

Petitioner :

: No. 841 C.D. 2015

v. :

:

Richard Brandon, :

Respondent :

O R D E R

AND NOW, this 24th day of November, 2015, the order of the 

Commonwealth of Pennsylvania, Office of Attorney General, dated May 15, 2015

in Case No. FAD01163, is VACATED and this matter is REMANDED for 

proceedings consistent with the foregoing opinion.

Jurisdiction is relinquished.

 

ROBERT SIMPSON, Judge