IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stanley Crawford, Tracey Anderson, :

Delia Chatterfield, Aishah George, :

Rita Gonsalves, Maria Gonsalves- :

Perkins, Wynona Harper, Tamika :

Morales, Cheryl Pedro, Rosalind :

Pichardo, Ceasefire Pennsylvania :

Education Fund, and The City of :

Philadelphia, :

Petitioners :

: No. 562 M.D. 2020

 v. :

: Argued: June 9, 2021

The Commonwealth of Pennsylvania, :

The Pennsylvania General Assembly, :

Bryan Cutler, in his official capacity as :

Speaker of The Pennsylvania House of :

Representatives, and Jake Corman, in :

his official capacity as President :

Pro Tempore of the Pennsylvania :

Senate, :

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

1 This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn 

Jubelirer became President Judge.
2

OPINION ANNOUNCING THE JUDGMENT OF THE COURT2

BY JUDGE McCULLOUGH FILED: May 26, 2022 

In our original jurisdiction, certain residents of the City of Philadelphia,

the City of Pittsburgh, and/or their adjacent communities (Petitioner Citizens),3

Ceasefire Pennsylvania Education Fund (Petitioner CeaseFire), and the City of

Philadelphia (Petitioner City) (collectively, Petitioners) filed a petition for review 

(PFR) on October 7, 2020, in the nature of a complaint seeking declaratory and 

injunctive relief. In the PFR, Petitioners named as respondents the Commonwealth of 

Pennsylvania (Respondent Commonwealth), the Pennsylvania General Assembly

(Respondent General Assembly), Bryan Cutler, in his official capacity as Speaker of 

the Pennsylvania House of Representatives (Respondent Speaker), and Jake Corman, 

in his official capacity as President Pro Tempore of the Pennsylvania State Senate

(Respondent President Pro Tempore) (collectively, Respondents). 

In the PFR, Petitioners lodge novel legal challenges to the validity of 

Section 6120(a) of the Pennsylvania Uniform Firearms Act of 1995 (UFA), 18 Pa.C.S. 

2 After circulation and consideration by the full Court, this case proceeded to judicial 

conference in accordance with the Commonwealth Court’s Internal Operating Procedures, and is 

being filed as a plurality opinion. 210 Pa.Code §69.256 (“If, pursuant to vote after judicial conference 

consideration, a majority of all of the Judges, as well as a majority of the Judges who heard the case 

or to whom it was submitted on briefs, favor the result reached in the circulated draft opinion, that 

opinion, together with any concurring or dissenting opinions and notations of concurrences or 

dissents, shall be filed.”). 

3 Petitioner Citizens are Stanley Crawford, Tracey Anderson, Delia Chatterfield, Aishah 

George, Rita Gonsalves, Maria Gonsalves-Perkins, Wynona Harper, Tamika Morales, Cheryl Pedro, 

and Rosalind Pichardo.
3

§6120(a),4and, to a much lesser extent, Section 2962(g) of the Home Rule Charter and 

Optional Plans Law (Home Rule Law), 53 Pa.C.S. §2962(g)

5

(together, Firearm 

Preemption Statutes). As a general matter, these statutes vest the General Assembly 

with the sole power to legislate in the field of firearm regulation and preempt and/or 

prohibit all political subdivisions from enacting local laws that encroach into that area.

6

More specifically, Petitioners assert that Respondents, in enacting the Firearm 

Preemption Statutes and failing to revise those statutes to permit municipal regulation 

of firearms at the local level, engaged in unlawful conduct. On this basis, Petitioners 

enumerate three causes of action: the first is based on the state-created danger doctrine,

the second asserts a violation of substantive due process, and the third is dubbed 

interference with statutory delegation of powers. 

Respondents have filed various preliminary objections to the PFR. 

Respondent Commonwealth asserts that Petitioners lack standing and failed to state a 

4 Section 6120 of the UFA is titled, “Limitation on the regulation of firearms and 

ammunition,” and subsection (a) pronounces a relatively straightforward command: “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.” 18 Pa.C.S. §6120(a) (emphasis added). 

 

5

53 Pa.C.S. §§2901-2984. Section 2962(g) of the Home Rule Law states that “[a]

municipality shall not enact any ordinance or take any other action dealing with the regulation of the 

transfer, ownership, transportation[,] or possession of firearms.” 53 Pa.C.S. §2962(g) (emphasis 

added). 

6

See, e.g., Commonwealth v. Ortiz, 681 A.2d 152, 156 (Pa. 1996); Firearm Owners Against 

Crime v. Lower Merion Township, 151 A.3d 1172, 1179 (Pa. Cmwlth. 2016); Dillon v. City of Erie, 

83 A.3d 467, 473 (Pa. Cmwlth. 2014); National Rifle Association v. City of Philadelphia, 977 A.2d 

78, 82 (Pa. Cmwlth. 2009) (en banc), overruled on other grounds by Firearm Owners Against Crime 

v. City of Harrisburg, Mayor Eric Papenfuse, 218 A.3d 497, 511-13 (Pa. Cmwlth. 2019) (en banc), 

appeal granted in part and denied in part, 230 A.3d 1012 (Pa. 2020); Clarke v. House of 

Representatives, 957 A.2d 361, 364 (Pa. Cmwlth. 2008); Schneck v. City of Philadelphia, 383 A.2d 

227, 229-30 (Pa. Cmwlth. 1978).
4

claim upon which relief may be granted. Respondent General Assembly argues that

Petitioners failed to state a claim upon which relief may be granted and that their claims 

are not ripe for review. Similarly, Respondent Speaker contends that Petitioners lack 

standing, and that their claims are not ripe, are barred by collateral estoppel, and are 

legally insufficient. For his part, Respondent President Pro Tempore maintains that 

Petitioners lack standing to pursue their claims, and that their claims are not ripe for 

review, are barred by res judicata, are non-justiciable, and are not otherwise legally 

cognizable. Respondent President Pro Tempore further objects to the PFR on the 

ground that certain allegations contain scandalous or impertinent matter and should be 

stricken as such. 

In turn, Petitioners filed separate answers to each of Respondents’ 

preliminary objections. Thereafter, the individual Respondents filed their own briefs 

in support of their preliminary objections, and Petitioners filed a global brief in 

opposition to all of Respondents’ preliminary objections. Petitioners and Respondents 

then filed reply briefs. Meanwhile, numerous entities and/or individuals filed amicus 

curiae briefs in support of both Petitioners and Respondents.7 On May 7, 2020, we 

entered a per curiam order scheduling oral argument before the Court, sitting en banc, 

on June 9, 2021. This Court held argument on that date, and Respondents’ preliminary 

objections are now ripe for disposition.

Upon review, and for the foregoing reasons, we conclude that Petitioners

have failed to set forth a claim upon which relief may be granted. Accordingly, we

sustain Respondents’ preliminary objections that challenge the legal sufficiency of the

7 Namely, briefs were filed by Gun Owners of America, Inc., Gun Owners Foundation, the 

Heller Foundation, and Conservative Legal Defense and Education Fund, Brady and Giffords Law 

Center to Prevent Gun Violence, the City of Pittsburgh, the City of Harrisburg, the County and Local 

Governments, and individual medical doctors and the Coalition of Trauma Centers for Firearm Injury 

Prevention. 
5

counts in the PFR and dismiss the PFR with prejudice.

I. The PFR

In the PFR, Petitioners aver where the individual Petitioner Citizens have

lived, i.e., most reside in the City of Philadelphia, a few in the City of Pittsburgh, and 

one in a township adjacent to the City of Pittsburgh, and describe the events of gun 

violence that has affected them. Petitioner Citizens generally allege that, as a result of 

these events, they have suffered emotional distress, anxiety, grief, and/or have lived in 

a state of fear of gun violence in their communities. Petitioner Citizens represent that 

nearly all of them are Black, Hispanic, or a combination of both, and allege that the 

incidents of gun violence that have impacted their lives took place in poverty-stricken 

areas that have a high crime rate. (PFR ¶¶9-18.)

Petitioner CeaseFire “is a Pennsylvania nonprofit organization 

headquartered in [Petitioner City],” and its “mission is to end the epidemic of gun 

violence across the Commonwealth of Pennsylvania through education, coalition 

building, and advocacy in support of sensible gun laws and public policies.” (PFR 

¶¶19-20.)

Petitioner City “is a municipal corporation and political subdivision of the 

Commonwealth of Pennsylvania.” (PFR ¶21.) Petitioner City “is a Home Rule 

Municipality organized and existing under the [Home Rule Law],” “is a city of the first 

class by statutory designation,” and “is coextensive with the County of Philadelphia, a 

county of the first class.” (PFR ¶22.) According to the PFR, Petitioner City 

is home to almost 1.6 million residents. [The City of] 

Philadelphia’s residents include many communities of color 

and low-income communities, groups that are especially 

vulnerable to the harms caused by gun violence. [The City 

of] Philadelphia has a poverty rate of 24.3%[,] 43.6% of 

Philadelphians identify as Black or African American[,] and 

15.2% of Philadelphians identify as Hispanic or Latino. 
6

(PFR ¶23.) 

In the PFR, Petitioners aver that they “have been directly affected by gun 

violence and continue to be threatened and harmed by gun violence every day.” (PFR 

Sec. II.) Petitioner Citizens “have lost loved ones to gun violence,” “grapple daily with 

the trauma of those injuries,” and “live in fear of the next episode of gun violence that 

will be visited on them and their families.” (PFR ¶40.) Petitioner CeaseFire alleges

that the Firearm Preemption Statutes “have impaired and continue to impair [its] ability 

to . . . advance a broad range of effective, evidence-based local gun regulations”; 

Petitioner CeaseFire “has been forced to divert time, funding, and resources to mitigate 

the harmful consequences of the Firearm Preemption [Statutes]”; and the Firearm 

Preemption Statutes “have frustrated [its] mission to obtain passage of sensible gun 

laws by disrupting its efforts to work with the communities most affected by gun 

violence and to advance local regulations that would prevent gun violence and save 

lives.” (PFR ¶¶40, 45, 47-48.) Otherwise, Petitioner City alleges that it “bears a 

significant economic burden associated with gun violence.” (PFR ¶51.) However, 

Petitioner City then lists costs that apparently would be incurred by individuals and not 

the City of Philadelphia itself, contending that “[a] firearm homicide is associated with 

an estimated average cost of $1.42 million due to medical expenses, lost 

earnings/productivity, property damage, and criminal justice costs,” and maintaining 

that, “[o]n average, a non-fatal firearm-related injury costs $46,632 in medical 

expenses and lost productivity.” (PFR ¶51.) Petitioner City further avers that the 

Firearm Preemption Statutes “infringe upon [the City of] Philadelphia’s interests and 

functions as a governing entity, including its responsibility to protect the health, safety, 

and quality of life of its citizens.” (PFR ¶53.) 
7

The PFR then delves into a general exposition on gun violence, 

particularly in the Cities of Philadelphia and Pittsburgh, and alleges that gun violence 

has a disparate impact on African-American and Hispanic ethnicities who live in lowincome areas and/or areas with a high crime rate. The PFR contains the following 

averments: 

28. Gun violence in Pennsylvania is a public health crisis 

in which Respondents have actively played a key role....

. . . .

39. The gun violence epidemic in Pittsburgh, like 

Philadelphia, disproportionately affects Pittsburgh’s Black 

residents. . . .

(PFR ¶¶28, 39) (footnotes and citations omitted). 

Next, the PFR highlights and emphasizes floor debate and discussion 

among representatives of the General Assembly with regard to the Firearm Preemption 

Statutes, averring, overall, that “[i]n passing, amending, expanding, and enforcing the 

Firearm Preemption [Statutes], Respondents have disregarded the evidence showing 

that [the statutes] exacerbate the gun violence epidemic.” (PFR Sec. IV.) 

 The PFR also provides a chronological background of the legislative 

history and developments of the Firearm Preemption Statutes. The most relevant 

averments are as follows: 

63. When the bill that would become Section 6120 [of the 

UFA] was first introduced, it permitted [the City of] 

Philadelphia to continue implementing its own gun safety 

laws (except with regards to hunters in transit). . . . 

Nevertheless, the final amended version preempted many 

life-saving gun[-]safety law[s] that might be passed in the 

City of Philadelphia as well.
8

. . . . 

67. Since the initial passage of Section 6120, the General 

Assembly has continued to enact amendments, all of which 

further restrict the ability of local governments to protect 

their residents from gun violence, [and] all the while 

continuing to disregard evidence before it, and available to 

it, showing the harmful effects of preemption and/or the 

benefits of certain gun ordinances.

68. In 1987, the General Assembly passed an amendment 

to Section 6120 that further barred local regulation [by] 

expanding Section 6120(a) to include preemption of 

ordinances that would regulate ammunition and ammunition

components.

69. In 1993, the General Assembly passed yet another 

amendment to Section 6120, this time providing for a more 

expansive definition of the word “firearms,” and thus 

effectively expanding the categories of weapons that local

governments were prohibited from regulating. . . . 

. . . .

78. In 1996, the General Assembly [enacted Section 

2962(g) of Home Rule Law,] which applies to all 

municipalities except Philadelphia, and states: “A 

municipality shall not enact any ordinance or take any other 

action dealing with the regulation of the transfer, ownership, 

transportation or possession of firearms.” [53 Pa.C.S. 

§2962(g).] Thus, whereas Section 6120’s scope is limited to 

regulations of the “lawful” transfer, ownership,

transportation, or possession of firearms, and only when 

firearms are “carried or transported for purposes not 

prohibited by the laws of this Commonwealth,” Section 

2962(g) is not so limited.

[8]

79. In 1999, the General Assembly . . . amended Section 

6120 to prohibit municipalities from “[b]ring[ing] or 

maintain[ing] an action at law or in equity against any 

firearms or ammunition manufacturer, trade association or 

8

See supra notes 4 and 5. 
9

dealer for damages, abatement, injunctive relief or any other 

relief or remedy resulting from or relating to either the lawful 

design or manufacture of firearms or ammunition or the 

lawful marketing or sale of firearms or ammunition to the 

public.” Members of the General Assembly warned of the 

damaging results of the General Assembly’s actions; the 

General Assembly ignored these warnings.

. . . .

83. In 2013, [House Bill (HB)] 80 was introduced to 

address theft of “secondary metal.” By the time of final 

passage, the General Assembly had revised the bill

dramatically, such that it also provided a right of action in 

court by any individual “adversely affected” by an ordinance 

prohibited under Section 6120 or Section 2962(g) to bring 

suit in court.[9]

84. When the provision related to Section 6120 was 

discussed, members of the House expounded on the gun 

violence epidemic in Pennsylvania. The General Assembly 

once again disregarded this information.

. . . .

88. In addition to passing amendments to Section 6120, 

the General Assembly has on several occasions refused to 

narrow or repeal Section 6120, despite its own awareness that 

Petitioners are suffering extensive and tangible harm as a 

result of the Firearm Preemption [Statutes]. For example, the 

following bills narrowing or repealing the Firearm 

Preemption [Statutes] have been proposed to the General 

Assembly, and none have received so much as a floor vote: 

HB 739 of 2001, HB 1036 of 2001, HB 1841 of 2001, HB 

1842 of 2001, HB 874 of 2005, HB 2483 of 2006, HB 2955 

of 2006, HB 18 of 2007, HB 23 of 2007, HB 25 of 2007, HB 

485 of 2007, HB 1044 of 2009, and SB 176 of 2011, SB 192 

9 However, as recognized by Petitioners, after HB 80 was passed, the provision amending 

Section 6120 and providing for a private right of action was invalidated as unconstitutional on singlesubject rule grounds by the Pennsylvania Supreme Court in Leach v. Commonwealth, 141 A.3d 426 

(Pa. 2016).
10

of 2013, HB 2611 of 2018, SB 625 of 2019, HB 2291 of 

2020.

89. [Respondent] Commonwealth has prevented, and 

continues to prevent, [the City of] Philadelphia and other 

municipalities from passing and enforcing ordinances via the 

Firearm Preemption [Statutes]. Meanwhile, municipalities, 

organizations, and individual constituents continue to suffer.

(PFR ¶¶63, 67-69, 78-79, 83-84, 88-89) (footnotes and citations omitted). 

From these averments, the PFR alleges that “[s]ince its passage, Section 

6120 has operated to restrict local municipalities in their ability to protect their citizens 

and address the particularized safety concerns of these municipalities and 

neighborhoods within these municipalities,” and that the “statute endangers the lives 

of [] Petitioners and others in their communities by effectively preventing local 

municipalities from fulfilling their core duties to protect the health and safety of their 

residents.” (PFR ¶¶54-55.) In addition, the PFR avers that “the General Assembly has 

continued to amend Section 6120, and with each amendment, the General Assembly 

has further restricted the ability of municipalities like Philadelphia to address gun 

violence”; the General Assembly “has repeatedly blocked any attempt to loosen 

preemption restrictions, while steadfastly refusing to act to curb gun violence at the

state level”; “and by its actions, the General Assembly has exposed [Petitioner 

Citizens] to [a] direct risk of gun violence.” (PFR ¶55.) According to the PFR, the 

Firearm Preemption Statutes have “prevented [the City of] Philadelphia and other 

Pennsylvania municipalities from enforcing the ordinances they have passed to make 

their residents safer,” and these statutes, “coupled with [the General Assembly’s]

refusal to pass evidence-based gun safety legislation on the state level, operate to 

actively prevent an effective gun safety approach that would save the lives, property, 

and bodily integrity of Pennsylvania residents, particularly in low-income 

neighborhoods in the largest cities.” (PFR ¶¶56-57.) Additionally, the PFR, citing 
11

case law from the appellate courts of this Commonwealth, correctly notes that Section 

6120 has been “held to preempt enforcement of [the City of] Philadelphia’s ordinance 

requiring a license to acquire a firearm within the city or bring a firearm into 

Philadelphia,” as well as “several other firearm-related ordinances enacted by the City 

of Philadelphia, including ordinances that prohibited straw purchasing of guns, limited 

handgun purchases to one per month, required annual renewal of the firearm license,

prohibited persons subject to protection from abuse orders from acquiring firearms, and 

prohibited the possession or transfer of assault weapons.”

10

 (PFR ¶60) (citations 

omitted). 

Proceeding along these lines, the PFR posits that “[b]ut for the Firearm 

Preemption [Statutes], the City of Philadelphia and other municipalities would pass 

their own safety ordinances that would prevent or mitigate the harm suffered by their 

residents, including [Petitioner Citizens].” (PFR ¶91) (emphasis added). Providing 

examples, the PFR asserts that Petitioner City would pass three certain types of 

ordinances, including one that would impose “permit-to-purchase requirements.” In 

this regard, the PFR contends: 

94. Pennsylvania currently requires only that a potential 

firearm purchaser pass a background check in order to 

purchase a firearm. It does not require a permit to purchase a 

firearm. Permit-to-purchase systems involve an application 

to a state or local law enforcement agency and a background 

check that is often facilitated by fingerprints. Law 

enforcement has, on average, 30 days to complete the check. 

Sellers, both licensed and private, can only sell to a potential 

firearm purchaser with a valid license.

(PFR ¶94) (footnotes and citations omitted). 

10 See supra note 5. 
12

The PFR also states that Petitioner City would enact an ordinance 

imposing “one-gun-per-month limits.” The PFR claims that 

106. Pennsylvania does not currently limit the number of 

firearms an individual may purchase within a certain time 

period.

107. States that implement a waiting period between 

purchases of handguns have experienced dramatic reductions 

of gun violence, the prevalence of straw purchases, and gun 

trafficking.

. . . .

112. Allowing Philadelphia and other municipalities to pass 

one-gun-per-month laws within their boundaries would save 

lives . . . . 

113. If not for [] Respondents’ actions in passing and 

perpetually voting to keep the Firearm Preemption [Statutes]

in place, Philadelphia and other municipalities would have 

the ability to pass local one-gun-per-month ordinances.

(PFR ¶¶106-07, 112-13) (emphasis added).

Finally, the PFR maintains that Petitioner City would enact an ordinance 

that would permit “extreme risk protection orders” (ERPO), contending that 

“Pennsylvania does not have any procedures for disarming firearm owners who pose 

an extreme risk of physical harm to themselves or others.” (PFR ¶116.) The PFR 

further avers that 

117. Implementing procedures for an [ERPO] would allow 

law enforcement to proactively prevent gun[-]related

tragedies before they occur. An ERPO allows families, 

household members, or law enforcement officers to petition 

a court directly for an ERPO which temporarily restricts a 

person’s access to guns.

(PFR ¶117.) 
13

Ultimately, the PFR maintains that “[b]y preventing the passage of 

regulations like permit-to-purchase requirements, one-gun-per-month limits, and 

ERPO ordinances, Respondents have increased the risks of gun violence in Petitioners’ 

communities.” (PFR ¶126.) The PFR states that “[c]rime-gun-trace data collected by 

the Pennsylvania Attorney General’s office demonstrate[s] that these kinds of 

regulations would reduce the risk of gun violence if enacted at the local level,” because 

“[t]he majority of guns used in crimes in [the City of] Philadelphia (and in Pennsylvania 

more broadly) are from dealers in Pennsylvania, with a plurality of guns used in crimes 

in [the City of] Philadelphia coming from dealers within [the] City limits”; thus, the 

PFR asserts that the Firearm Preemption Statutes “prevent [the City of] Philadelphia 

from addressing significant sources of guns used in crimes.” (PFR ¶127.) Further, the 

PFR contends that, due to the Firearm Preemption Statutes, Petitioner Citizens “and 

their loved ones are more likely to suffer death or serious bodily injury from gun 

violence,” and “[the City of] Philadelphia’s residents in vulnerable Black and Hispanic 

communities are more likely to suffer death or serious bodily injury from gun 

violence.” (PFR ¶¶128-29.) The PFR reiterates that “[t]he greatest increases in the 

risks of gun violence as a result of the Firearm Preemption [Statutes] are in Black and 

Hispanic low-income urban communities like those in areas of [the City of] 

Philadelphia.” (PFR ¶130.) 

Based on these allegations, the PFR asserts three causes of action. In 

count I, the PFR advances a claim under the state-created danger doctrine. In this vein, 

the PFR contends that “Respondents have affirmatively used their authority in a way 

that renders Petitioners more vulnerable to gun violence than had Respondents not

acted at all” and “acted with a degree of culpability that shocks the conscience and with 

deliberate indifference and/or recklessness.” (PFR ¶¶133-34.) In addition, the PFR 
14

states that “Petitioners are foreseeable victims of Respondents’ acts and/or [are] 

members of a discrete class of persons subjected to the potential harm brought about 

by Respondents’ actions” and, further, “have suffered harm that is the foreseeable and 

a fairly direct result of Respondents’ actions.” (PFR ¶¶135-36.) 

In count II, the PFR sets forth a substantive due process claim, asserting 

that “[t]he Firearm Preemption [Statutes] violate [a]rticle I, [s]ection 1 [of the 

Pennsylvania Constitution11], as they do not bear a real and substantial relation to a 

legitimate government purpose.” (PFR ¶142.) 

In count III, which is denoted as a claim for “interference with 

delegation,” the PFR states that “[t]he Commonwealth has the obligation to maintain 

order and to preserve the safety and welfare of all citizens” and “has delegated portions 

of that obligation to its political subdivisions,” and “[t]his delegation imposes on local 

health authorities, including [Petitioner City’s] health department, the responsibility for 

the ills of gun violence.” (PFR ¶¶145-46.) The PFR avers that “[i]t is the responsibility 

of the Commonwealth to provide [the City of] Philadelphia and other municipalities 

with reasonable powers with which to discharge their delegated responsibilities, 

including the delegated responsibility to address gun violence,” and “[t]he General 

Assembly’s enactment of the Firearm Preemption [Statutes] [has] deprive[d] [the City 

of] Philadelphia of the ability to fulfill its delegated duty to address gun violence.” 

(PFR ¶¶149-50.) Moreover, the PFR alleges that “the General Assembly’s enactment 

and continuation of the Firearm Preemption [Statutes], combined with the General 

Assembly’s failure to enact adequate statewide firearm regulations, violates the 

Commonwealth’s obligation to maintain order and to preserve the safety and welfare 

of all citizens,” reasoning that “[t]he General Assembly cannot enforce the Firearm 

11 Pa. Const. art. I, §1.
15

Preemption [Statutes] against [the City of] Philadelphia while delegating [it] the 

responsibility to address gun violence.” (PFR ¶151.) 

For relief, Petitioners seek “a declaration that Respondents’ actions 

violate [a]rticle I, [s]ection I of the Pennsylvania Constitution and a permanent 

injunction preventing further enforcement of the Firearm Preemption [Statutes].” (PFR

¶¶138, 144.) Petitioner City also asks for a declaration stating “that by depriving [it]

of the ability to fulfill its delegated duties to address gun violence,” “Respondents have 

violated the Commonwealth’s obligation to maintain order and to preserve the safety 

and welfare of all citizens” and request “a permanent injunction preventing further 

enforcement of the Firearm Preemption [Statutes].” (PFR ¶152.) Finally, Petitioners 

apply for a declaration that “Respondents have violated [a]rticle I, [s]ection 1 of the 

Pennsylvania Constitution” by “prohibiting the City of Philadelphia from enacting 

firearm regulations[,] such as permit-to-purchase ordinances, one-gun-per-month 

limits, and extreme risk protection laws.” (PFR ¶153.) 

II. Discussion

As noted above, Respondents have filed preliminary objections to the 

PFR, one of which is that all three counts in the PFR have failed to state a valid cause 

of action as a matter of law, which is known in Pennsylvania as a “demurrer.” At this 

point in time, it is well settled that, “[i]n ruling on preliminary objections in the nature 

of a demurrer, the Court must accept as true all well-pleaded material facts and all 

inferences reasonably deducible therefrom. However, the Court is not required to 

accept as true legal conclusions, unwarranted factual inferences, argumentative 

allegations, or expressions of opinion.” Shore v. Pennsylvania Department of 

Corrections, 168 A.3d 374, 378-79 (Pa. Cmwlth. 2017) (internal citations omitted). 

For preliminary objections in the nature of a demurrer to be sustained, “it must appear
16

with certainty that the law will permit no recovery, and any doubt must be resolved in

favor of the non-moving party.” Gregory v. Pennsylvania State Police, 160 A.3d 274,

276 (Pa. Cmwlth. 2017) (internal citations omitted).

A. State-Created Danger Doctrine

In their briefs, Respondents contend, among other things, that Petitioners 

failed to plead a viable claim under the state-created danger doctrine because the theory 

has never been used to nullify a state statute. Respondents further assert that, in failing 

to pass the legislation that Petitioners desire, Respondents did not engage in an 

affirmative act, which is required to invoke the protections of substantive due process 

under the state-created danger doctrine. Somewhat similarly, Respondents assert that 

Petitioners’ claim fails because a state may not be held liable for risks that generally 

affect the public at large, and none of the Petitioners belong to a discrete and 

identifiable class of individuals who face a peculiar risk that is distinguishable from a

risk that is posed to the general public. 

In response, Petitioners contend that the state-created danger doctrine 

imposes a duty on Respondents to protect Pennsylvania citizens if Respondents’ own 

actions create or enhance a danger toward the citizens, and this includes taking 

legislative action that increases the risk or opportunity for gun violence. Petitioners 

argue that the General Assembly was consciously aware that the Firearm Preemption 

Statutes would result (and have resulted) in an increase in gun deaths in the Cities of 

Philadelphia and Pittsburgh, namely in the low-income and/or high crime areas, and 

assert that Respondents acted affirmatively, in that they repeatedly amended Section 

6120 of the UFA to make it more expansive in its preemptive reach. In Petitioners’ 

view, the Petitioner Citizens constitute a defined class of individuals, for purposes of 

the state-created danger doctrine, because they are members of communities and 
17

ethnicities “that bear a tragically disproportionate share of the scourge of gun 

violence.” (Pet’rs’ Br. at 54-55.) Further, Petitioners contend that a statute cannot be 

immunized from the state-created danger doctrine because the doctrine originates from 

the due process clauses of the United States (U.S.) and Pennsylvania Constitutions. 

Petitioners maintain that all official legislative activity, like executive action, is bound 

by constitutional restraints and, thus, the Firearm Preemption Statutes are subject to 

review under the state-created danger doctrine. 

In terms of the substantive component of the due process clause, whether 

it be per the Fourteenth Amendment of the U.S. Constitution, U.S. Const. amend. XIV,

or article I, section 1 of the Pennsylvania Constitution, Pa. Const. art. I, §1, and its 

corollary sections, a legal theory has developed that is commonly known as the statecreated danger doctrine. See Johnston v. Township of Plumcreek, 859 A.2d 7, 12-13 

& n.16 (Pa. Cmwlth. 2004). In Johnston, a panel of this Court entertained an appeal 

by landowners who challenged the constitutionality of a township’s ordinances that 

required them to connect to the public water system. The landowners “asserted that as 

a result of the terrorist attacks on September 11, 2001, and the nation’s war on 

terrorism, there [was] a real and present danger of terrorist attacks on public water 

systems” and “alleged that the [township’s] [w]ater [a]uthority [was] not in a position 

to protect its customers . . . from having their water poisoned by chemical or biological 

contaminants.” Id. at 9. The court of common pleas dismissed the claim on preliminary 

objections, and, on appeal, the landowners contended, among other arguments, that the 

court below “erred in failing to recognize the right of every individual to provide for 

his protection from life threatening incidents.” Id. at 10 (internal quotation marks 

omitted). Construing the landowners’ claim to be “one that fell under the ‘statecreated’ danger theory,” this Court concluded that the landowners’ cause of action was 
18

meritless. Id. at 13. In so deciding, we researched the area of law governing the statecreated danger doctrine and, upon our review, stated: “[A]s far as can be determined, 

the ‘state-created danger’ body of jurisprudence has never been used to nullify a statute 

or ordinance.” Id. Although this Court eventually addressed the landowners’ claim in 

the alternative, based on the assumption that the state-created danger doctrine could 

render a statute unconstitutional, we inevitably upheld the decision of the court of 

common pleas with the following clear statement: “Most importantly, the state-created 

danger theory is a construct by which damages are awarded for constitutional torts. It 

is not used to nullify statutory law, and we will not do so here.” Id. at 14.

Notably, in their brief, Petitioners have failed to cite a case in a jurisdiction 

within the United States that refutes the proposition of law and holding enunciated in 

our decision in Johnston. Based upon our own independent research, we have been 

unable to unearth such a case. Following Johnston as binding precedent, this Court, 

therefore, could summarily dispose of Petitioners’ state-created danger claim on the 

valid and independent ground that the legal theory cannot be utilized as the means by 

which to declare the Firearm Preemption Statutes unconstitutional.12 While we 

preserve this reasoning as a legal basis for our conclusion in the event of a further 

appeal, this Court will nonetheless proceed to address Petitioners’ claim on alternative 

grounds. 

 The United States Supreme Court has emphasized that the Due Process 

Clause does not guarantee minimum levels of safety or security, see Collins v. City of 

Harker Heights, 503 U.S. 115, 126-27 (1992), and it is generally settled that there is 

no constitutional duty on the part of the state to protect members of the public at large 

12 See Commonwealth v. Markman, 916 A.2d 586, 606 (Pa. 2007) (“Where a decision rests on 

two or more grounds equally valid, none may be relegated to the inferior status of obiter dictum.”) 

(internal citation omitted). 
19

from crime, see Martinez v. California, 444 U.S. 277, 284-85 (1980). Indeed, “[t]he 

Constitution is a charter of negative liberties; it tells the state to let people alone; it does 

not require the federal government or the state to provide services, even so elementary 

a service as maintaining law and order.” Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.

1982). 

In DeShaney v. Winnebago County Department of Social Services, 489 

U.S. 189 (1989), the United States Supreme Court held that the Due Process Clause of 

the Fourteenth Amendment does not impose on the state an affirmative duty to protect 

individuals against private acts of violence. Id. at 197. “The [D]ue [P]rocess [C]lause

generally confers no affirmative right to governmental aid, even where such aid may 

be necessary to secure life, liberty, or property interests . . . . Mere indifference or 

inaction in the face of private violence cannot support a substantive due process claim.” 

Wilson-Trattner v. Campbell, 863 F.3d 589, 593 & 596 (7th Cir. 2017) (internal 

citations and quotation marks omitted). Similarly, a “passive failure to stop private 

violence” will not suffice to establish a state-created danger, Pena v. DePrisco, 432 

F.3d 98, 110 (2d Cir. 2005), and “[i]t is not enough to allege that a government actor 

failed to protect an individual from a known danger of bodily harm,” Lombardi v. 

Whitman, 485 F.3d 73, 79 (2d Cir. 2007).

Nonetheless, our Supreme Court and the United States Court of Appeals 

for the Third Circuit, as well as other federal circuit courts of appeals, recognize a 

caveat called the “state-created danger” doctrine. See R.W. v. Manzek, 888 A.2d 740, 

743 (Pa. 2005); Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996). That exception 

provides that “the Due Process Clause can impose an affirmative duty to protect if the 

state’s own actions create the very danger that causes the plaintiff’s injury.” Morrow 

v. Balaski, 719 F.3d 160, 167 (3d Cir. 2013).
20

To prevail on a substantive due process claim under the state-created 

danger doctrine, a petitioner must prove each of the following elements: (1) the harm 

ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree 

of culpability that shocks the conscience; (3) a relationship between the state and the 

petitioner existed such that the petitioner was a foreseeable victim of the respondents’

acts, or a member of a discrete class of persons subjected to the potential harm brought 

about by the state’s actions, as opposed to a member of the public in general; and (4) a 

state actor affirmatively used his or her authority in a way that created a danger to the 

citizen or that had rendered the citizen more vulnerable to danger than had the state not 

acted at all. Henry v. City of Erie, 728 F.3d 275, 281-82 (3d Cir. 2013) (citing Morrow, 

719 F.3d at 177).

Undoubtedly, “many state activities have the potential to increase an 

individual’s risk of harm” by private actors, Kallstrom v. City of Columbus, 136 F.3d 

1055, 1066 (6th Cir. 1998), and, in one way or another, “[a]ll government activities 

involve some risk; for example, motorists are killed each year on state highways.” 

Johnston, 859 A.2d at 13. Consequently, “[i]t cannot be that the state . . . ‘creates a 

danger’ every time it does anything that makes injury at the hands of a third party more 

likely. If so, the state would be liable for every crime committed by the prisoners it 

released.” Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015). As the Third Circuit put it: 

“If a municipality, state[,] or other public body is to be liable under the Constitution 

for harm caused by private parties to persons not in [state] custody, the liability would 

be unlimited. There is no legal doctrine that supports imposition of such liability.” 

Bennett ex rel. Irvine v. City of Philadelphia, 499 F.3d 281, 289-90 (3d Cir. 2007); see 

also Rivera v. Rhode Island, 402 F.3d 27, 37 (1st Cir. 2005) (“[M]erely rendering a 

person more vulnerable to risk does not create a constitutional duty to protect.”).
21

By its very nature, the legal concept of foreseeability is designed to curtail 

the state-created danger doctrine from an unfathomable reach. The third element of 

the state-created danger doctrine—the “foreseeable victim” element—is closely related 

to the first element, which requires that the alleged danger, here, gun violence, be 

foreseeable in terms of legal causation. In particular, the third element asks whether 

there is a sufficiently close relationship between the state and the petitioner to make 

the petitioner a “foreseeable victim of the [respondents’] acts in a tort sense,” either 

“individually or as a member of a distinct class.” Hopkins v. Yesser, 412 F. Supp. 3d 

517, 523 (E.D. Pa. 2019). The relationship may exist when the respondents have

knowledge that either “(1) a specific individual has been placed in harm’s way” or (2) 

the petitioner “[is] part of an identifiable and discrete class of persons subject to the 

harm the state allegedly has created.” Morse v. Lower Merion School District, 132 

F.3d 902, 914 (3d Cir. 1997).

Summarizing the law of the Third Circuit, a federal district court for the 

Eastern District of Pennsylvania ably stated:

The “primary focus” of the third element is foreseeability. 

But in the “discrete class” analysis, foreseeability by itself is 

not enough. In addition, the group must be limited enough 

to remain separate from the general public. This requirement 

prevents the state-created danger exception from swallowing 

the general rule that the state is not obligated to protect its 

citizens from random, violent acts of private parties.

. . . .

A class cannot be “discrete” and “limited” unless it is 

“identifiable.” To be “identifiable,” the class must have 

clearly defined outer boundaries or membership criteria. 

This requirement makes logical sense: foreseeability is the 

“primary focus” of the third element, but a class cannot be 

foreseeable if it is not clearly defined. And a class without 
22

clearly discernible limits raises an intolerable risk of bleeding 

into the “public at large.”

. . . .

A “discrete class” must [also] face a “particular threat”

separate from that shared by the general public.

Hopkins, 412 F. Supp. 3d at 523-28 (internal citations and some internal quotation 

marks omitted).

Importantly, “[w]here the state actor has allegedly created a danger 

towards the public generally, rather than an individual or group of individuals, holding 

a state actor liable for the injuries of foreseeable [petitioners] would expand the scope 

of the state-created danger theory beyond its useful and intended limits.” Morse, 132 

F.3d at 913 n.12. In the words of the United States Court of Appeals for the Sixth 

Circuit: “In the only cases where we have recognized a ‘state[-]created danger,’ the 

government could have specified whom it was putting at risk, nearly to the point of 

naming the possible victim or victims.” Jones v. Reynolds, 438 F.3d 685, 696 (6th Cir.

2006). Further, the United States Court of Appeals for the Fifth Circuit has said: “We 

have consistently cautioned against finding liability under the state-created danger 

theory based upon an ineffective policy or practice in cases where the [petitioner’s]

injury is inflicted by a private actor.” Doe ex rel. Magee v. Covington County School 

District, 675 F.3d 849, 866 (5th Cir. 2012) (en banc).

In Mark v. Borough of Hatboro, 51 F.3d 1137 (3d Cir. 1995), a member 

of a volunteer fire department, while acting as a private citizen, set fire to the plaintiff’s

auto repair business. The plaintiff alleged that the state actors’ “failure to follow 

adequate policies to ensure that applicants to the fire department were screened 

sufficiently for tendencies towards arson caused the damage to his property.” Id. at 
23

1140. On appeal, the Third Circuit affirmed the grant of summary judgment in favor of 

the defendants. In so determining, the court observed:

In Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989), cert. 

denied, 498 U.S. 938 (1990), . . . a state trooper, after 

arresting the driver of a car and impounding the car, left the 

driver’s female passenger stranded alone in a neighborhood 

with the highest aggravated crime rate in the county at 2:30 

A.M. The plaintiff was raped. The court held that the 

plaintiff “has raised a genuine issue of fact tending to show 

that [the trooper] acted with deliberate indifference to 

[plaintiff’s] interest in personal security under the 

[F]ourteenth [A]mendment.” Id. at 588. In Cornelius v. 

Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), cert. 

denied, 494 U.S. 1066 (1990), . . . the state allowed a prisoner 

with a history of committing violent crimes to participate in 

a work release program where he had access to “axes, picks, 

machetes, knives and saws,” and was supervised only by an 

unarmed civilian member of the community. The inmate 

abducted the town clerk at knife point and held her hostage 

for three days, during which time he threatened to abuse her 

sexually and physically and to kill her. Id. at 350. . . . 

[I]n Cornelius, the plaintiff introduced evidence that the 

defendants who employed her exercised a control over her 

work environment that arguably was sufficient to create a 

special, quasi-custodial relationship between them.

. . . .

The cases where the state-created danger theory was applied 

were based on discrete, grossly reckless acts committed by 

the state or state actors using their peculiar positions as state 

actors, leaving a discrete plaintiff vulnerable to foreseeable 

injury. In Wood, for example, the woman eventually was 

raped, and the court held that a jury could find that the 

officer, using his power as an officer, placed the plaintiff in 

a situation entailing a foreseeable risk of danger. Indeed, 

assuming the facts are true, it would be unfair to say that the 

state actor was not responsible for the rape.
24

But this case is not like those cases at all. When the alleged 

unlawful act is a policy directed at the public at large—

namely a failure to protect the public by failing adequately to

screen applicants for membership in a volunteer fire 

company—the rationale behind the rule disappears—there 

can be no specific knowledge by the defendant of the 

particular plaintiff’s condition, and there is no relationship 

between the defendant and the plaintiff. Therefore, we 

cannot say that an oppressive act of the defendants, made 

possible by virtue of the fact that they were acting in a public 

capacity, caused [the plaintiff’s] injury.

Mark, 51 F.3d at 1152-53 (some internal citations omitted).

In Rivera v. Houston Independent School District, 349 F.3d 244 (5th Cir. 

2003), the Fifth Circuit rejected a state-created danger claim against a school district

after a student died as a result of gang-related violence. The court explained:

[T]o hold [the school district] responsible for the ultimate 

ineffectiveness of [its policies designed to combat gang 

violence] would turn the Due Process Clause’s limited duty 

of care and protection into a guarantee of shelter from private 

violence. This result would be inimical to the Supreme 

Court’s conclusion [in DeShaney] that the Due Process 

Clause does not require the State to protect individuals from 

private violence.

349 F.3d at 250. 

In Ruiz v. McDonnell, 299 F.3d 1173 (10th Cir. 2002), a mother enrolled 

her child in a state-licensed home daycare. The operator of the daycare literally abused 

the child to death. The mother brought suit against the state’s human services 

department and its director, alleging that their act of licensing the provider, which failed 

to meet state requirements for licensure, violated her deceased son’s right to substantive 

due process pursuant to the state-created danger doctrine. The United States Court of 

Appeals for the Tenth Circuit disagreed: 
25

[W]e do not view the mere licensure of [the daycare] as 

constituting the requisite affirmative conduct necessary to 

state a viable [] claim. Specifically, the improper licensure 

did not impose an immediate threat of harm. Rather, it 

presented a threat of an indefinite range and duration. 

Moreover, the licensure affected the public at large; it was 

not aimed at [the child] or [his mother] directly . . . . [T]he 

mere licensure of [the daycare] was not an act directed at [the 

child] which, in and of itself, placed [the child] in danger.

Id. at 1183. Stated succinctly, in Ruiz, the court held that “negligence in licensing was 

not a sufficiently affirmative act under the standard set by DeShaney because it did not 

pose an immediate threat of harm and was directed at the public in general.” Gray v. 

University of Colorado Hospital Authority, 672 F.3d 909, 922 (10th Cir. 2012) (internal 

citation omitted). 

In Gray, the Tenth Circuit drew upon Ruiz and other decisions and 

formulated the following proposition of law: 

[A] State’s adoption of generally[]applicable policies and 

customs does not foist upon anyone an immediate threat of 

harm having a limited range and duration. The act of 

establishing such policies and customs itself does not put any 

particular individual at substantial risk of serious, immediate, 

and proximate harm. And because the act of establishing 

such policies and customs does not pose a direct threat to any 

one particular individual but affects a broader populace, we 

deem such act too remote to establish the necessary causal 

link between the danger to the victim and the resulting harm. 

In other words, the affirmative conduct required to support a 

danger creation claim should be directed at a discrete 

plaintiff.

Gray, 672 F.3d at 926 (internal citations and quotation marks omitted).

At bottom, the above recitation of the case law clearly establishes that a 

state cannot be found to have violated the state-created danger doctrine by enacting a 

statute and/or policy that is generally applicable, even if the statute and/or policy is 

arguably ineffective and fails to adequately protect the public from private acts of 
26

violence. This is because such laws are inherently directed at the public in general and 

not at any specific individual or discrete class of individuals. Regardless of Petitioners’ 

averments in the PFR, the UFA is a relatively comprehensive regulatory regime, 

containing protective measures designed to combat gun violence. Further, Section 

6120(a) is equally applicable across and throughout this Commonwealth, applying to 

each and every county or municipality; thus, it is directed at the public at large and not 

toward any of the Petitioners in particular. 

By way of background, the UFA lists numerous offenses, mostly 

felonious, drug-related, or violent in nature, and prohibits individuals who have been 

convicted of any one of these offenses from possessing a firearm. See 18 Pa.C.S. 

§6105. Generally, the UFA requires an individual to obtain a license to carry a firearm 

in a vehicle or concealed on or about his person or in public, and imposes restrictions 

on the sale or transfer of firearms, including a 48-hour waiting period and a criminal 

history and mental health background check. See 18 Pa.C.S. §§6106, 6109, and 6111. 

The UFA also contains licensing requirements for retailers and dealers of firearms, and 

outlaws the sale, transfer, or possession of certain bullets, including armor-piercing 

ammunition. See 18 Pa.C.S. §§6112-13. While carrying a “firearm” is presumptively 

lawful under the UFA, Section 908 of the Crimes Code makes it a criminal offense to 

use, possess, or sell an “offensive weapon”; pursuant to this statutory provision, most 

items that are required to be registered under the National Firearms Act (NFA),

13 such 

as machine guns, suppressors, short barreled rifles, and shotguns, are prohibited as 

“offensive weapons” unless they are registered under the NFA. See generally 18 

Pa.C.S. §908.

13 26 U.S.C. §§5801-5872.
27

It is in this overall light that the preemption provision of Section 6120 

must be viewed, read, and understood. The UFA creates uniform procedures and 

requirements for the selling and licensing of firearms, and designates which firearms, 

ammunition, and ammunition components will be or will not be lawful at the state

level. In its command that “[n]o 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,” 18 Pa.C.S. §6120(a), Section 6120(a) 

is designed to guarantee consistency in firearm regulation from county to county, city 

to township, county to city, etc. In other words, in crafting Section 6120(a), it is readily 

apparent that it was the intention of our General Assembly to ensure that the citizens 

of the Commonwealth would not be subjected to varying and differing firearm 

regulations as they travel from town to town. Indeed, it would be difficult for a citizen 

to learn, memorize, or otherwise keep track of the firearm laws of every municipality 

in the Commonwealth. It would also be somewhat anomalous for a citizen to lawfully 

carry a concealed firearm on his/her side of the street, but to have that same firearm be 

deemed unlawful and/or improperly licensed when the citizen travels across the road 

and into another municipality to obtain groceries. 

That said, Petitioners’ claim under the state-created danger doctrine is a 

slippery one that is difficult to fully grasp and appreciate in the legal sense. To the 

extent Petitioners assert that the operational and functional structure of the UFA results 

in gun violence and that such violence constitutes a state-created danger, this assertion 

necessarily fails. Being a state statute that applies evenly to all of the municipalities in 

the Commonwealth, the UFA is targeted at the public in general. And, “[w]hen the 

alleged unlawful act is a policy directed at the public at large . . . the rationale behind 
28

the [state-created danger] rule disappears—there can be no specific knowledge by 

[Respondents] of the particular [Petitioners’] condition, and there is no relationship 

between [Respondents] and [Petitioners].” Mark, 51 F.3d at 1152-53. In somewhat 

different language, “[a] State’s adoption of generally[]applicable policies [] does not 

foist upon anyone an immediate threat of harm having a limited range and duration,” 

and “[t]he act of establishing such policies [by] itself does not put any particular 

individual at substantial risk of serious, immediate, and proximate harm.” Gray, 672 

F.3d at 926. 

Here, although Petitioner Citizens allege that their loved ones are victims 

of gun violence, the UFA does not actively promote, much less mandate, citizens to 

inflict harm upon each other with firearms, and “the Due Process Clause does not 

require the State to protect individuals from private violence.” Rivera, 349 F.3d at 250. 

Insofar as Petitioners contend that the UFA does not adequately protect the public 

because it has a tendency to allow individuals with dangerous propensities to obtain a 

firearm and/or a firearm license, “improper licensure [does] not impose an immediate 

threat of harm” and, instead, “present[s] a threat of an indefinite range and duration.” 

Ruiz, 299 F.3d at 1183. Indeed, by its nature, “negligence in licensing [is] directed at 

the public in general,” Gray, 672 F.3d at 922, and it is “not aimed at [Petitioners] 

directly.” Ruiz, 299 F.3d at 1183. 

Moreover, inasmuch as Petitioners’ averments could be construed as 

basing their claim on the proposition that Petitioner City, and other municipalities, 

would be able to enact better, more effective laws in the area of gun regulation, this 

claim also lacks merit. In the PFR, Petitioners specifically allege that, “[b]ut for the 

Firearm Preemption [Statutes], the City of Philadelphia and other municipalities would

pass their own safety ordinances that would prevent or mitigate the harm suffered by 
29

their residents, including [Petitioner Citizens],” (PFR ¶91) (emphasis added), namely

laws providing for “permit-to-purchase requirements,” “one-gun-per-month limits,” 

and “ERPOs.” In so averring, Petitioners cite statistical data to support the 

implementation of their proposed ordinances, assuming that, in contrast to the UFA, 

these ordinances “would . . . protect the lives of their residents.” (PFR ¶¶101, 112, 122.) 

Notably, to support the alleged inadequacy of the UFA, Petitioners depend heavily on 

remarks made by members of the General Assembly during floor debate—statements 

that opposed the preemptive reach of Section 6120(a). 

But, on an individual and collective scale, all of Petitioners’ averments 

amount to challenges to the democratic nature of the legislative process itself. Notably,

Petitioners ignore the fact that Section 6120(a), despite its opposition from certain 

House and Senate members, is nonetheless a duly enacted law expressing the will, 

wisdom, and judgment of the General Assembly. Petitioners further fail to realize that, 

in its status as a valid statute and exercise of legislative authority, Section 6120(a) is

generally applicable throughout the Commonwealth; in fact, it dictates, without 

exception, that it is the sole prerogative of our General Assembly to enact laws in the 

field of firearm regulation on a statewide basis. Ultimately, “because the act of 

establishing such policies [] does not pose a direct threat to any one particular 

individual[,] but affects a broader populace,” a generally applicable statute like Section 

6120(a), or the UFA in general, is “too remote to establish the necessary causal link 

between the danger to the victim and the resulting harm.” Gray, 672 F.3d at 926. 

Tellingly, the incidents of gun violence listed and described in the PFR were all 

situations where a private actor committed a private act of violence. As such, the role 

that the UFA played in overall scenarios is entirely imaginative and speculative, 

because there are multiple, indeed countless, variables that account for—or contributed 
30

toward—the actual incidents of violence in the unique circumstances of each case, 

including the identity and background of the perpetrator and things such as motive or 

intent. 

Equally important, the United States Court of Appeals for the Sixth 

Circuit, albeit in an unpublished decision, has persuasively discussed the significance 

of legislative judgment and choice in policymaking when analyzing a claim predicated 

on the state-created danger doctrine:

When the state makes complex governance decisions, even 

if a plaintiff can show that the state had a “subjective 

awareness of substantial risk of serious injury,” a court must 

“make some assessment that [the state] did not act in 

furtherance of a countervailing governmental purpose that 

justified taking that risk.” Hunt v. Sycamore Community

School District Board of Education, 542 F.3d 529, 541 (6th 

Cir. 2008). As we have noted, “[i]t is in the very nature of 

deliberative bodies to choose between and among competing 

policy options, and yet a substantive due process violation 

does not arise whenever the government’s choice prompts a 

known risk to come to pass. . . . Many, if not most, 

governmental policy choices come with risks attached . . . 

and yet ‘it is not a tort for government to govern’ by picking 

one option over another.” Schroder v. City of Fort Thomas, 

412 F.3d 724, 729 (6th Cir. 2005) (quoting Scheuer v. 

Rhodes, 416 U.S. 232, 241 (1974)). As a result, even if a 

state actor is aware of a substantial risk of harm when it takes 

action, this court is “unlikely to find deliberate indifference 

if [the] action was motivated by a countervailing, legitimate 

governmental purpose.” Hunt, 542 F.3d at 542.

Walker v. Detroit Public School District (6th Cir., No. 12-1367, filed August 26, 2013) 

(unreported), slip op. at 7.

Importantly, a legislative body’s expressed public need for uniformity in 

an area of legislation, and its decision to invoke and employ the doctrine of preemption

to accomplish such uniformity, is one that directly furthers a legitimate governmental 
31

interest. See Ortiz, 681 A.2d at 154-56; see also Beneficial National Bank v. Anderson, 

539 U.S. 1, 10-11 (2003); City and County of Denver v. Qwest Corporation, 18 P.3d 

748, 754-56 (Colo. 2001); Browne v. United States, 176 F.3d 25, 26 (2d Cir. 1999);

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142-45 (1990); Albany Area Builders 

Association v Town of Guilderland, 546 N.E.2d 920, 922-23 (N.Y. Ct. App. 1989); 

United States v. Lee, 455 U.S. 252, 258-61 (1982); Dome Realty, Inc. v. City of 

Paterson, 416 A.2d 334, 341-42 (N.J. 1980); cf. CTS Corporation v. Dynamics 

Corporation of America, 481 U.S. 69, 88-89 (1987); Pinney v. Nokia, Inc., 402 F.3d 

430, 46-61 (4th Cir. 2005); Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 399-400 

(3d Cir. 1987); United States v. Merkt, 794 F.2d 950, 956 (5th Cir. 1986). In essence, 

and at its core, the desire for “[u]niformity of law encompasses the idea that one person 

should not suffer a greater burden under the law than another, simply because that 

person lives in a different [area in a] state.” Donald L. Bell, Comment: The Adequate 

and Independent State Grounds Doctrine: Federalism, Uniformity, Equality and 

Individual Liberty, 16 Florida State University Law Review 365, 383-84 (1988) 

(footnotes omitted). Therefore, even if the General Assembly was aware that certain 

geographical areas and/or members of society could potentially be exposed to gun 

violence on a greater scale, the General Assembly had a legitimate, countervailing 

government interest in passing Section 6120(a). 

In an apparent attempt to escape all this, Petitioner Citizens argue that they 

belong to an identifiable and discreet class, particularly in terms of race and/or ethnicity 

and/or the fact that they reside in either the City of Philadelphia or the City of 

Pittsburgh, the both of which, Petitioners allege, are high crime areas. However, as 

courts have held, “[a] plaintiff cannot merely . . . name a more particular sub-class of 

the public as the group to which the government owed a duty, such as one’s 
32

‘neighbors.’ Neighbors are still the public.” Jones v. Reynolds, 438 F.3d 685, 697 (6th 

Cir. 2006) (citation and internal quotation marks omitted). The same proposition holds 

true here and applies with equal and compelling force: regardless of the racial and/or 

ethnic background of each of the Petitioner Citizens, all the Petitioner Citizens are still 

members of the public, and the UFA does not single them out specially for disparate 

treatment. Moreover, Petitioners’ designation of the cities as high crime areas is 

insufficient to create a distinct class. As one court explained, “levels of the quality of 

life in a neighborhood are transient . . . . Private action could easily result in changes 

in the neighborhood that would create opportunities for private violence that are alleged 

to exist here; for example, people . . . could move into the neighborhood without the 

support of the state.” Township of West Orange v. Whitman, 8 F. Supp. 2d 408, 422-

23 (D.N.J. 1998) (internal citation omitted). Significantly, “[t]he ‘public in general’ 

rule already internalizes and rejects as insufficient the argument that those living closer 

to an alleged state-created danger”—i.e., gun violence, “face a higher probability of 

harm than those living elsewhere.” Hopkins, 412 F. Supp. 3d at 528. Consequently, 

an alleged heightened danger posed to residents of cities is still a danger to the public 

at large—one that is not visited uniquely on the homes, or particular people living, 

within the cities. See Township of West Orange, 8 F. Supp. 2d at 422. 

To reiterate, simply “rendering a person more vulnerable to risk does not 

create a constitutional duty to protect,” Rivera, 402 F.3d at 37; “[m]ere indifference or 

inaction in the face of private violence cannot support a substantive due process claim,”

Wilson-Trattner, 863 F.3d at 596; a “passive failure to stop private violence” will not 

suffice to establish a state-created danger, Pena, 432 F.3d at 110; and “[i]t is not enough 

to allege that a government actor failed to protect an individual from a known danger 

of bodily harm,” Lombardi, 485 F.3d at 79. Therefore, for these reasons and those 
33

discussed above, we conclude that Petitioners have failed to state a valid claim under 

the state-created danger doctrine as a matter of law. 

B. Substantive Due Process

Respondents argue that Petitioners’ substantive due process claim is not 

one upon which relief can be granted. Respondents contend that Petitioners do not 

allege the deprivation of a fundamental right and that the Firearm Preemption Statutes 

pass rational basis review because they bear a real, substantial relation to a legitimate 

state interest, namely the regulation of firearms on a statewide basis. 

In response, Petitioners maintain that, pursuant to article I, section 1 of the 

Pennsylvania Constitution, they possess a fundamental right “to enjoy and defend life 

and property,” and the Firearm Preemption Statutes “block [them] from protecting 

themselves from gun violence with local regulations.” (Pet’rs’ Br. at 62-63.) 

Petitioners assert that the Firearm Preemption Statutes are thus subject to heightened 

scrutiny and, even if they are not, the statutes are not substantially related to an 

important government interest. According to Petitioners, the Firearm Preemption 

Statutes do not “improve public safety or reduce gun violence,” id. at 69, and the 

Commonwealth does not have a legitimate need for uniformity in the area of gun 

regulation. 

Article I, section 1 of the Pennsylvania Constitution provides: “All men 

are born equally free and independent, and have certain inherent and indefeasible 

rights, among which are those of enjoying and defending life and liberty, of acquiring, 

possessing and protecting property and reputation, and of pursuing their own 

happiness.” Pa. Const. art. I, §1. “This section, like the [D]ue [P]rocess [C]lause in 

the Fourteenth Amendment of the United States Constitution, guarantees persons in 

this Commonwealth certain inalienable rights.” Nixon v. Commonwealth, 839 A.2d 
34

277, 286 (Pa. 2003). “While the General Assembly may, under its police power, limit 

those rights by enacting laws to protect the public health, safety, and welfare, any such 

laws are subject to judicial review and a constitutional analysis.” Id. (internal citations 

omitted). 

As an embedded principle of constitutional law, “[i]f [a] statute restricts a 

fundamental right, it is reviewed under strict scrutiny. If the statute impacts a protected 

but not fundamental right, then it is subject to rational basis review.” Haveman v. 

Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 238 

A.3d 567, 573 (Pa. Cmwlth. 2020) (en banc) (internal citation omitted). Notably, “[a]s 

a general matter, economic and social legislation . . . receives rational basis review.” 

Doe v. Miller, 886 A.2d 310, 315 (Pa. Cmwlth. 2005). 

In conducting rational basis review, this Court “must assess whether the 

challenged law has ‘a real and substantial relation’ to the public interests it seeks to 

advance, and is neither patently oppressive nor unnecessary to these ends.” Shoul v. 

Department of Transportation, Bureau of Driver Licensing, 173 A.3d 669, 678 (Pa. 

2017). Although the issue of “whether a law is rationally related to a legitimate public 

policy is a question for the courts, the wisdom of a public policy is one for the 

legislature.” Id. Significantly, “in determining the constitutionality of a law, this Court 

may not question the propriety of the public policies adopted by the General Assembly 

for the law, but rather is limited to examining the connection between those policies 

and the law.” Nixon, 839 A.2d at 286. 

Pursuant to the rational basis standard, if there is any reasonably 

conceivable state of facts or reason that could provide a rational basis for a statute, the 

challenged statute will be upheld. See Corteal v. Department of Transportation, 821 

A.2d 173, 177 (Pa. Cmwlth. 2003). Importantly, a legislative body need not articulate 
35

its reasoning at the moment a particular decision is made, and a legislative choice may 

be based on rational speculation unsupported by evidence or empirical data. See Adams 

Outdoor Advertising, LP v. Zoning Hearing Board of Smithfield Township, 909 A.2d 

469, 478 (Pa. Cmwlth. 2006); Corteal, 821 A.2d at 177. Indeed, “[a]pplication of [the 

rational basis]standard does not require an express statement of purpose by the General 

Assembly concerning the statute at issue. . . . [I]f some legitimate reason exists, the 

provision cannot be struck down, even if its soundness or wisdom might be deemed 

questionable.” Sadler v. Workers’ Compensation Appeal Board (Philadelphia CocaCola Company), 244 A.3d 1208, 1216 (Pa. 2021) (internal citation and quotation marks 

omitted). 

“During the founding era, [] Americans were no strangers to firearm 

regulation. Laws regulated the discharge, storage, and aggressive use of firearms, and 

disarmed people who were considered untrustworthy in some capacity.” Bonidy v. 

United States Postal Service, 90 F.3d 1121, 1131 (10th Cir. 2015) (internal citations 

and quotation marks omitted). “In the context of firearm regulation, the legislature is 

far better equipped than the judiciary to make sensitive policy judgments (within 

constitutional limits) concerning the dangers in carrying firearms and the manner to 

combat those risks.” Kachalsky v. County of Westchester, 701 F.3d 81, 97 (2d Cir. 

2012). At the same time, the U.S. and Pennsylvania Constitutions guarantee an 

individual a right to keep and bear arms, especially for purposes of self-defense, and

this right exists outside the home. See Caba v. Weaknecht, 64 A.3d 39, 50-52 (Pa.

Cmwlth. 2013); see also Wrenn v. District of Columbia, 864 F.3d 650, 665 (D.C. Cir. 

2017); Moore v. Madigan, 702 F.3d 933, 935-40 (7th Cir. 2012).14 In Ortiz, the Cities 

14 The Second Amendment of the U.S. Constitution provides: “A well regulated Militia, being 

necessary to the security of a free State, the right of the people to keep and bear arms, shall not be 

(Footnote continued on next page...)
36

of Philadelphia and Pittsburgh challenged the propriety of the General Assembly’s 

enactment of Section 6120(a) and whether it could legally preempt their local firearm 

ordinances. In upholding the validity and authority of the statewide preemption 

provision in Section 6120(a), our Supreme Court, as noted above, explained that 

“[b]ecause the ownership of firearms is constitutionally protected, its regulation is a 

matter of statewide concern . . . . Thus, regulation of firearms is a matter of concern in 

all of Pennsylvania, not merely in Philadelphia and Pittsburgh, and the General 

Assembly, not city councils, is the proper forum for the imposition of such regulation.” 

Ortiz, 681 A.2d at 156.

In Johnston, this Court rejected the landowners’ broad, sweeping claim 

that the “right to protect one’s own life” is a fundamental right subject to strict scrutiny 

and, instead, applied the rational basis test when the landowners claimed that the 

fundamental right subsumed a right to refuse to connect to a public water supply. 859 

A.2d at 10-11. Similarly, here, Petitioners assert a fundamental right to “defend life 

and property,” but they couch this purported right as a right to be free from gun violence 

and a right to have Petitioner City and other municipalities enact local gun control 

ordinances. However, our discussion above pertaining to the state-created danger 

doctrine demonstrates that Petitioners do not possess a general constitutional right to 

have the government protect them from private acts of violence. Further, it is well 

settled that Section 6120(a) is a valid exercise of legislative authority, and our General 

Assembly acted within the confines of the Pennsylvania Constitution, particularly 

infringed.” U.S. Const. amend. II. Additionally, article 1, section 21 of the Pennsylvania Constitution 

states: “The right of the citizens to bear arms in defence of themselves and the State shall not be 

questioned.” Pa. Const. art. I, §21.
37

article 9, section 2,15 when it decided to preempt local laws in the area of firearm 

regulation. See Ortiz, 681 A.2d at 154-56. Therefore, we conclude that Petitioners 

have failed to articulate the deprivation of a fundamental right, and that the Firearm 

Preemption Statutes must be analyzed under the rubric of the rational basis test. 

As explained above, the need for uniformity in certain fields of the law is 

a legitimate governmental and public interest, and the Firearm Preemption Statutes, 

coupled with the regulatory regime of the UFA, bears a substantial relation to that

interest. In this regard, Capital Area District Library v. Michigan Open Carry, Inc., 

826 N.W.2d 736 (Mich. Ct. App. 2012), is instructive. There, the Michigan Court of 

Appeals reviewed the state’s firearm regulation statute, which is structured in a manner 

that is remarkably comparable to the UFA and contains many similar regulatory 

provisions in terms of topics and subject matter. In deciding whether the doctrine of 

field preemption was applicable, the intermediate appeals court initially determined 

“whether the nature of the regulated subject matter demands exclusive state regulation 

to achieve the uniformity necessary to serve the state’s purpose or interest.” Id. The 

court found that “[t]he regulation of firearm possession undoubtedly calls for such 

exclusive state regulation,” noting that if there were a “Balkanized patchwork of 

inconsistent local regulations,” the “citizens of th[e] state would be subject to varying 

and possibly conflicting regulations regarding firearms and a great deal of uncertainty 

and confusion would be created.” Id. (internal citations and quotation marks omitted). 

The court further noted that, if localities could pass their own firearm laws, “[i]t would 

be extremely difficult for firearm owners to know where and under what circumstances 

they could possess a gun.” Id. Ultimately, the court concluded that “[a]n exclusive, 

15 In pertinent part, this provision states that “[a] municipality which has a home rule charter 

may exercise any power or perform any function not denied . . . by the General Assembly.” Pa. Const. 

art. IX, §2.
38

uniform state regulatory scheme for firearm possession is far more efficient for 

purposes of obedience and enforcement than a patchwork of local regulation.” Id. at 

746-47. 

Akin to the court in Capital Area District Library, our own Supreme Court 

has determined that firearm regulation entails “substantive matters of statewide 

concern,” concluding that “the General Assembly . . . is the proper forum for the 

imposition of such regulation.” Ortiz, 681 A.2d at 156. In enacting the Firearm 

Preemption Statutes, our General Assembly made a policy-based decision to prohibit 

municipalities from intruding into the arena of firearm regulation and, in so doing, 

created a uniform system of laws throughout the Commonwealth. As the averments in 

the PFR illustrate, the General Assembly debated the issue of preemption, and 

Petitioners’ arguments bear more on the wisdom of the legislation rather than on its 

validity. This Court, as the judicial branch of government, does not act as a superlegislature. In a case decided in 2008, this Court concluded that Section 6120 

preempted Petitioner City’s ordinances relating to firearm regulation, and we stated: 

“While we understand the terrible problems gun violence poses for [Petitioner City]

and sympathize with its efforts to use its police powers to create a safe environment for 

its citizens, these practical considerations do not alter the clear preemption imposed by 

the legislature, nor our Supreme Court’s validation of the legislature’s power to so act.” 

Clarke, 957 A.2d at 365. Although the streams of time have run since then, we reaffirm 

that statement and sentiment here. There are numerous factors and considerations 

which must be taken into account by the legislature in establishing the policy it 

determines provides the most protection for the public, and the courts are not the place 

to enter into such public debate.
39

It is beyond cavil that, “[w]hen faced with any constitutional challenge to 

legislation, we proceed to our task by presuming constitutionality in part because there 

exists a judicial presumption that our sister branches take seriously their constitutional 

oaths.” Stilp v. Commonwealth, 905 A.2d 918, 938 (Pa. 2006). Honoring the 

presumption of constitutionality which attends the Firearm Preemption Statutes, we 

conclude that the statutes pass muster under the rational basis test and, as such, 

Petitioners’ substantive due process claim lacks merit and is legally insufficient. 

C. Interference with Delegation

Respondents contend that Petitioners’ claim for “interference with 

delegation” fails as a matter of law because Section 6120(a) has clearly deprived 

Petitioner City from enacting laws in the area of firearm regulation regardless of what 

other statutory authority it may have to pass legislation for the health and welfare of its 

citizens and communities in general. 

In response, Petitioners argue that the General Assembly is obligated to 

protect its citizens and delegated to Petitioner City “a portion of its responsibility . . . 

under the Local Health Administration Law”

16 and “the Disease Prevention and 

Control Law [of 1955],”

17 particularly the authority to eradicate local “menace[s] to 

public health.” (Pet’rs’ Br. at 74-75.) Petitioners assert that Petitioner City “does not 

have the resources it needs to carry out its duty to address the gun violence epidemic” 

and, as a result of the Firearm Preemption Statutes, has been “deprive[d] . . . of the 

ability to fulfill its delegated duty to address gun violence.” Id. at 75-76. 

Initially, we conclude that, based on the plain language of the pertinent 

statutes, any authority delegated to Petitioner City to “prevent or remove conditions

16 Act of August 24, 1951, P.L. 1304, as amended, 16 P.S. §§12001-28.

17 Act of April 23, 1956, P.L. (1955) 1510, as amended, 35 P.S. §§521.1-521.21.
40

which constitute a menace to public health,” Section 10 of the Local Health 

Administration Law, 16 P.S. §12010, or to “prevent[] and control [] communicable and 

non-communicable disease,” Sections 2 and 3(a) of the Disease Prevention and Control 

Law, 35 P.S. §§521.2, 521.3(a), does not appear to include (or otherwise correlate into) 

an authority to enact gun control laws. Generally speaking, “public health” has been 

defined as “the science and art of preventing disease, prolonging life[,] and promoting 

health through the organized efforts and informed choices of society, organizations, 

public and private, communities[,] and individuals.”

18 According to a renowned legal 

dictionary, “public health” is “[t]he healthful or sanitary condition of the general body 

of people or the community en masse,” especially “the methods of maintaining the 

health of the community, as by preventive medicine and organized care for the sick.” 

Black’s Law Dictionary 787 (9th ed. 2009). As “this Court may draw upon common 

sense and basic human experience to construe terms,” Kohl v. New Sewickley Township 

Zoning Hearing Board, 108 A.3d 961, 969 (Pa. Cmwlth. 2015), it is difficult to discern 

how Petitioners’ alleged incidents of gun violence equates into a “public health” matter 

that gives rise to an express “delegated duty” to implement gun regulation at the local 

level. This is because gun regulation does not directly affect the health of the people 

in the medical sense, such as when a communicable disease is introduced into the 

public, or unsanitary conditions exists in the streets or other infrastructure, or food 

products contaminated with harmful bacteria enter the marketplace. 

Moreover, and more importantly, Petitioner City, like all other home rule 

municipalities, is prohibited from “exercis[ing] powers contrary to, or in limitation or 

enlargement of, powers granted by acts of the General Assembly which are . . . 

18 Penka D. Gatseva, Public health: the Science of Promoting Health, JOURNAL OF PUBLIC 

HEALTH 19, 205–206 (2011), available at: https://link.springer.com/article/10.1007/s10389-011-

0412-8 (last visited May 24, 2022).
41

[a]pplicable in every part of the Commonwealth.” Section 18(b) of the Act of April 21, 

1949, P.L. 665, as amended, 53 P.S. §13133(b); see 53 Pa.C.S. §2962. In Ortiz, our 

Supreme Court held that Section 6120(a)’s directive that the General Assembly 

exclusively govern matters concerning the ownership, possession, transfer, or 

transportation of firearms evidenced an issue of statewide concern, and, the statute,

being equally applicable throughout the Commonwealth, deprived municipalities of 

authority to regulate these subjects, including Petitioner City. See 681 A.2d at 156; see 

also Hicks, 208 A.3d at 926 n.6 (reaffirming and reiterating that Section 6120(a)

verifies “the General Assembly’s reservation of the exclusive prerogative to regulate 

firearms in this Commonwealth”) (emphasis added). In so deciding, the Supreme 

Court considered and rejected arguments that are substantially similar to those 

advanced by Petitioner City here. Specifically, in Ortiz, the Cities of Philadelphia and 

Pittsburgh argued that, despite Section 6120(a) of the UFA, the General Assembly 

could not limit their “ability to perform the basic administrative functions of a 

municipal government and the ability to fulfill a fundamental purpose for which [a]

[c]ity government exists.” Ortiz, 681 A.2d at 155. The cities further asserted that “the 

right of a city to maintain the peace on its streets through the regulation of weapons is 

intrinsic to the existence of the government of that city and, accordingly, an irreducible 

ingredient of constitutionally protected Home Rule.” Id. at 155-56. Our Supreme 

Court disagreed and concluded that, notwithstanding any authority that the General 

Assembly has bestowed upon the cities to pass legislation, Section 6120(a) preempted 

the area of firearm regulation and barred the cities from enacting local firearm laws. 

Naturally, the same result must obtain here, and, following Ortiz as binding precedent, 

we conclude that Petitioners have not pleaded a valid claim for interference with 

delegation. 
42

Accordingly, viewing the averments in the PFR in the light most favorable 

to Petitioners, and giving Petitioners the benefit of any doubt, this Court must conclude 

that counts I, II, and III in the PFR are legally deficient and fail to state claims upon 

which relief can be granted. As such, we sustain Respondents’ preliminary objection

in this regard. 

III. Conclusion

For the above-stated reasons, we sustain Respondents’ preliminary

objections in the nature of a demurrer. To the extent Petitioners claim that 

municipalities could enact local laws more effective than the Firearm Preemption 

Statutes, these matters are reserved to the social policy-making branch of our 

government, the General Assembly. See, e.g, Chester Water Authority v. Pennsylvania 

Department of Community and Economic Development, 249 A.3d 1106, 1113-14 (Pa. 

2021); Seebold v. Prison Health Services, Inc., 57 A.3d 123, 1245 & n.19 (Pa. 2012).19

That said, and for the above-stated reasons, we dismiss the PFR with prejudice. 

 

________________________________

PATRICIA A. McCULLOUGH, Judge

Judge Fizzano Cannon concurs in the result only. 

Judges Covey and Wallace did not participate in the decision of this case. 

19 The Dissent, in advocating for social reform of gun laws, has not cited any legal authority 

to support the proposition that Petitioners have pleaded a viable state-created danger claim, a 

cognizable claim under the substantive component of the Due Process Clause, or a valid claim for 

“interference with delegation.” While there are varying views concerning gun laws, we note that it 

is the legislature that is charged with enacting laws and social policy, not the courts.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stanley Crawford, Tracey Anderson, :

Delia Chatterfield, Aishah George, :

Rita Gonsalves, Maria Gonsalves- :

Perkins, Wynona Harper, Tamika :

Morales, Cheryl Pedro, Rosalind :

Pichardo, Ceasefire Pennsylvania :

Education Fund, and The City of :

Philadelphia, :

Petitioners :

: No. 562 M.D. 2020

 v. :

:

The Commonwealth of Pennsylvania, :

The Pennsylvania General Assembly, :

Bryan Cutler, in his official capacity as :

Speaker of The Pennsylvania House of :

Representatives, and Jake Corman, in :

his official capacity as President :

Pro Tempore of the Pennsylvania :

Senate, :

Respondents :

ORDER

AND NOW, this 26

th day of May, 2022, the preliminary objections 

filed by the Commonwealth of Pennsylvania, the Pennsylvania General Assembly, 

Bryan Cutler, in his official capacity as Speaker of the Pennsylvania House of 

Representatives, and Jake Corman, in his official capacity as President Pro Tempore 

of the Pennsylvania State Senate, are hereby SUSTAINED. The Petition for Review 

filed by Stanley Crawford, Tracey Anderson, Delia Chatterfield, Aishah George, 

Rita Gonsalves, Maria Gonsalves-Perkins, Wynona Harper, Tamika Morales, 
Cheryl Pedro, Rosalind Pichardo, Ceasefire Pennsylvania Education Fund, and the 

City of Philadelphia is hereby DISMISSED with PREJUDICE. 

________________________________

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

Stanley Crawford, Tracey Anderson, :

Delia Chatterfield, Aishah George, :

Rita Gonsalves, Maria Gonsalves- :

Perkins, Wynona Harper, Tamika :

Morales, Cheryl Pedro, Rosalind : 

Pichardo, Ceasefire Pennsylvania :

Education Fund, and The City of : 

Philadelphia, :

Petitioners :

 :

v. : No. 562 M.D. 2020

 : Argued: June 9, 2021

The Commonwealth of Pennsylvania, :

The Pennsylvania General Assembly, :

Bryan Cutler, in his official capacity : 

as Speaker of The Pennsylvania :

House of Representatives, and Jake : 

Corman, in his official capacity as : 

President Pro Tempore of the : 

Pennsylvania Senate, :

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

CONCURRING OPINION BY

JUDGE COHN JUBELIRER FILED: May 26, 2022

Petitioners’ allegations regarding the prevalence and severity of gun violence 

in certain areas of the Commonwealth of Pennsylvania, and the tragic toll such

violence has on the lives of those who reside in those areas, are not lost on me. 

However, I believe that the Court is controlled by precedent, and that our Supreme 
RCJ-2

Court left little air in its conclusion in Ortiz v. Commonwealth, 681 A.2d 152, 156 

(Pa. 1996), that the regulation of firearms is to be done at the state, not local, level. 

I write separately, as did Senior Judge Leadbetter recently, recognizing “that 

local conditions may well justify more severe restrictions than are necessary 

statewide.” City of Philadelphia v. Armstrong, 271 A.3d 555, 569 (Pa. Cmwlth.

2022) (Leadbetter, S.J., concurring). As she eloquently stated, “[i]t is neither just to 

impose unnecessarily harsh limits in communities where they are not required nor 

consistent with simple humanity to deny basic safety regulations to citizens who 

desperately need them.” Id. The novel constitutional arguments raised by 

Petitioners may provide a basis for “our Supreme Court to reconsider the breadth of 

the Ortiz doctrine[] and allow for local restrictions narrowly tailored to local 

necessities.” Id. (footnote omitted).

__________________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stanley Crawford, Tracey Anderson, :

Delia Chatterfield, Aishah George, :

Rita Gonsalves, Maria Gonsalves- :

Perkins, Wynona Harper, Tamika :

Morales, Cheryl Pedro, Rosalind :

Pichardo, Ceasefire Pennsylvania :

Education Fund, and The City of :

Philadelphia, :

Petitioners :

:

v. : No. 562 M.D. 2020

: Argued: June 9, 2021

The Commonwealth of Pennsylvania, :

The Pennsylvania General Assembly, :

Bryan Cutler, in his official capacity :

as Speaker of The Pennsylvania :

House of Representatives, and :

Jake Corman, in his official capacity :

as President Pro Tempore of the :

Pennsylvania Senate, :

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

DISSENTING OPINION BY 

JUDGE CEISLER FILED: May 26, 2022

Because I would overrule each of Respondents’ Preliminary Objections to the 

Petition for Review, except for the objection challenging CeaseFire Pennsylvania 

Education Fund’s (CeaseFire PA) standing, I respectfully dissent.

I. Introduction

It is no secret that gun violence is on the rise and reaching epidemic levels in 

urban areas throughout this country, including two major cities in this 
EC - 2

Commonwealth: the City of Philadelphia (Philadelphia) and the City of Pittsburgh

(Pittsburgh). In their Petition for Review, Petitioners allege myriad facts 

demonstrating both the prevalence and the severity of gun violence in their 

communities and the grave toll it has taken on the lives of the individual Petitioners, 

who are Black and Hispanic residents of high-crime, low-income neighborhoods in 

Philadelphia and Pittsburgh. Petitioners allege that Philadelphia and Pittsburgh, like 

many other municipalities in Pennsylvania, have attempted to combat this crisis by 

adopting local legislation aimed at protecting their residents from gun violence. 

However, those attempts have been stymied by Respondents’ enactment and 

enforcement of two statutes: Section 6120(a) of the Uniform Firearms Act of 1995, 

18 Pa. C.S. § 6120(a) (Section 6120(a)),

1 and Section 2962(g) of the Home Rule 

Charter and Optional Plans Law, 53 Pa. C.S. § 2962(g) (Section 2962(g))2(together,

Firearm Preemption Statutes), which preclude Pennsylvania municipalities from 

enacting virtually all forms of local firearm regulation.

3

Petitioners aver that Philadelphia, Pittsburgh, and other municipalities 

throughout Pennsylvania would be better equipped to thwart gun violence in their 

1 Section 6120(a) provides: “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.” 18 Pa. C.S. § 6120(a) (emphasis added).

2 Section 2962(g) provides: “A municipality shall not enact any ordinance or take any 

other action dealing with the regulation of the transfer, ownership, transportation or possession of 

firearms.” 53 Pa. C.S. § 2962(g) (emphasis added).

3 Notably, while both Firearm Preemption Statutes preempt local regulation of firearms, 

they contain key differences. For example, Section 6120(a) applies only to the regulation of 

“lawful ownership, possession, transfer or transportation” of firearms, while Section 2962(g) is 

not limited to lawful ownership. Also, Section 2962(g) applies only to “firearms,” while Section 

6120(a) preempts regulation of “firearms, ammunition or ammunition components.”
EC - 3

communities through stricter regulation, were they not prohibited from doing so by 

the Firearm Preemption Statutes. Petitioners further aver that enforcement of the 

Firearm Preemption Statutes actually increases the likelihood of gun violence, 

particularly in communities that are poor and populated by racial minorities.

In Ortiz v. Commonwealth, 681 A.2d 152, 156 (Pa. 1996), the Pennsylvania 

Supreme Court held that the “regulation of firearms is a matter of statewide concern” 

because the ownership of firearms is constitutionally protected under Article I,

Section 21 of the Pennsylvania Constitution.4 While I agree that the regulation of 

firearms is a matter of statewide concern, it cannot be disputed that the impacts of 

gun violence are inevitably local. As Petitioners and the various Amici Curiae assert, 

the Firearm Preemption Statutes more negatively impact urban, populous

municipalities than their rural, less populous counterparts.5 The significant 

difference in gun violence rates between urban and rural communities in 

Pennsylvania, as alleged in the Petition for Review, demonstrates precisely why 

there is a need for local regulation in this area.

Pennsylvania’s municipalities have an important duty to protect the health, 

welfare, and safety of their citizens. In my view, protecting citizens against the threat 

of gun violence lies at the heart of this duty.

4

“The right of the citizens to bear arms in defence of themselves and the State shall not be 

questioned.” Pa. Const. art. I, § 21.

5 As the City of Harrisburg (Harrisburg) argues in its Amicus Curiae brief: “It is no 

accident[] . . . that most cases litigated under [Section] 6120[(a)]’s preemption clause arise out of 

Philadelphia, Pittsburgh, and Harrisburg; plainly, these are municipalities which, year after year, 

experience the greatest measure of gun violence.” Harrisburg’s Amicus Curiae Br. at 8 (citing 

cases).
EC - 4

As discussed more fully below, at this stage of the proceedings, I believe 

Petitioners have pled more than sufficient facts to overcome Respondents’ 

Preliminary Objections, except for the challenge to CeaseFire PA’s standing.

6

II. Standing

A. Individual Petitioners

Respondents assert that the individual Petitioners lack standing because their

rights to defend themselves and to be free from harm do not surpass the common 

interests of all citizens. Respondents posit that many other citizens of this 

Commonwealth are similarly affected by gun violence or have a family member or 

friend that was a victim of gun violence. Thus, Respondents contend that the 

individual Petitioners have nothing more than an abstract interest in ensuring that 

the Firearm Preemption Statutes do not violate the Pennsylvania Constitution. I 

cannot agree.

Our Supreme Court has articulated the requirements for standing as follows:

[T]he core concept of standing is that a person who is not adversely 

affected in any way by the matter he seeks to challenge is not aggrieved 

thereby and has no standing to obtain a judicial resolution of his 

challenge.

An individual can demonstrate that he has been aggrieved if he can 

establish that he has a substantial, direct and immediate interest in the 

outcome of the litigation. A party has a substantial interest in the 

outcome of litigation if his interest surpasses that “of all citizens in 

procuring obedience to the law.” “The interest is direct if there is a 

causal connection between the asserted violation and the harm 

6

In its Opinion, the Majority addresses only Respondents’ demurrer objections, concluding

that they are dispositive of the case. However, because I disagree with that conclusion and with 

the Majority’s dismissal of the Petition for Review, I will address all of Respondents’ objections 

in this Dissenting Opinion. Moreover, because the four Respondents raise a multitude of 

objections, many of which overlap, I will address their objections collectively by category.
EC - 5

complained of; it is immediate if that causal connection is not remote 

or speculative.” 

Fumo v. City of Phila., 972 A.2d 487, 496 (Pa. 2009) (emphasis added) (internal 

citations omitted); see also Firearm Owners Against Crime v. Papenfuse, 261 A.3d 

467, 481 (Pa. 2021) (explaining that, to establish standing in a declaratory judgment 

action, the plaintiff must allege an interest that is direct, substantial, and immediate 

and must show the existence of an actual controversy).

I believe the individual Petitioners have articulated a substantial interest in the 

outcome of this matter that surpasses the common interest of all citizens in the 

Commonwealth. The individual Petitioners are Black and Hispanic residents of 

Philadelphia and Pittsburgh who have lost loved ones to gun violence and who are 

themselves at a high risk of death or serious injury due to gun violence in their

communities. In the Petition for Review, each individual Petitioner alleges how he 

or she has been specifically impacted by gun violence in his or her community. See

Pet. for Rev. ¶¶ 9(a)-18(f). In my view, these Petitioners have clearly alleged “some 

discernible adverse effect” beyond an “abstract interest” in ensuring that the Firearm 

Preemption Statutes do not violate the Pennsylvania Constitution. William Penn 

Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 282 (Pa. 1975). 

The individual Petitioners have also alleged a “direct and immediate” causal 

connection between the Firearm Preemption Statutes and their claimed injuries. The 

individual Petitioners allege that, by enacting and enforcing the Firearm Preemption 

Statutes, Respondents have prevented Philadelphia and Pittsburgh from adopting

local legislation that would protect the individual Petitioners and their families from 

gun violence. They aver that they are uniquely affected because of the 

neighborhoods in which they live and their ethnicities and because they have lost 

loved ones to gun violence and are still suffering emotional trauma due to those 
EC - 6

losses and their fear for their own lives. See Pet. for Rev. ¶¶ 9(d), 10(e), 11(d), 11(f), 

12(e), 12(f), 13(e), 14(b), 15(d), 15(f), 16(d), 17(e), & 18(e).

Accepting the averments in the Petition for Review as true, as we must, I 

would conclude that the individual Petitioners have established standing to maintain 

this action. Therefore, I would overrule Respondents’ objections to the individual 

Petitioners’ standing.

B. Philadelphia

Next, Respondents assert that Philadelphia lacks standing to maintain this 

action. As this Court has explained, a municipality’s interest in the outcome of a 

lawsuit is

(1) substantial when aspects of the state law have particular application 

to local government functions (as opposed to general application to all 

citizens); (2) direct when the state law causes the alleged constitutional 

harm; and (3) sufficiently immediate when the municipality asserts 

factually supported interests that are not speculative or remote. 

Robinson Twp. v. Com., 52 A.3d 463, 474 (Pa. Cmwlth. 2012), aff’d in part and 

rev’d in part on other grounds, 83 A.3d 901 (Pa. 2013).

I believe Petitioners have alleged sufficient facts to establish Philadelphia’s 

standing to challenge Section 6120(a).

7

 As outlined in the Petition for Review, 

Section 6120(a) restricts Philadelphia’s power to enact much-needed local 

legislation to protect its residents from gun violence. In particular, Petitioners aver:

32. Gun violence in Philadelphia is especially troubling. One 

study found that over a two-year period in Philadelphia (from 2013 to 

2014), the overall rate of firearm assault was five times higher for Black 

residents compared with White residents. Homicide rates in 

Philadelphia in general are higher than most other major U.S. cities 

7

In their brief, Petitioners admit that Section 2962(g) does not apply to Philadelphia. See

Pet’rs’ Br. in Opp’n to Prelim. Objs. at 28 n.14.
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(i.e., cities with a population of 250,000 or greater). In 2018, the 

average homicide rate in these cities was 10.0 per 100,000 people; in 

Philadelphia that rate was over twice as high: 22.1 per 100,000. 

Philadelphia now ranks second in the nation, behind just Chicago, in 

the number of homicides involving guns. Nationally, the homicide rate 

is 5 per 100,000, meaning Philadelphia’s murder rate is nearly 4.4 times 

higher than the national average. Most of the homicides in Philadelphia 

are carried out with firearms, specifically handguns. In 2019, 86.8% of 

all homicides in . . . Philadelphia were a result of gun violence, 

compared to only 70% nationally.

33. Between 2009 and 2018, the firearm homicide death rate by 

county in Pennsylvania ranged from 0.8 to 15.0 deaths per 100,000 

persons. Philadelphia County had the highest death rate at 15.0 deaths 

per 100,000 persons, which is nearly 19 times higher than Bucks 

County, which had the lowest firearm homicide death rate (0.8 deaths 

per 100,000 persons), and it is more than twice as high as Allegheny 

County, which had the second-highest firearm homicide death rate of 

7.1 deaths per 100,000 persons.

Pet. for Rev. ¶¶ 32-33 (footnotes omitted). In my view, these are staggering figures 

and unmistakably demonstrate that Philadelphia’s interest in this matter is neither 

speculative nor remote.

Petitioners also aver that, aside from the loss of hundreds of Philadelphians’ 

lives each year, gun violence imposes a significant economic burden on the city’s

financial resources. See, e.g., id. ¶ 51 (“A firearm homicide [in Philadelphia] is 

associated with an estimated average cost of $1.42 million due to medical expenses, 

lost earnings/productivity, property damage, and criminal justice costs. On average, 

a non-fatal firearm-related injury costs $46,632 in medical expenses and lost 

productivity.”) (footnotes omitted).

Petitioners further allege that the Firearm Preemption Statutes impermissibly 

interfere with Philadelphia’s duty to protect the health, safety, and welfare of its 

residents. See Ryan v. City of Phila., 465 A.2d 1092, 1093 (Pa. Cmwlth. 1983) 
EC - 8

(recognizing that chief among local municipalities’ responsibilities is their 

obligation to “protect [their] citizens’ health, safety, and welfare”). Petitioners aver:

55. [Section 6120(a)] endangers the lives of the [individual] 

Petitioners and others in their communities by effectively preventing 

local municipalities from fulfilling their core duties to protect the health 

and safety of their residents. Moreover, since passing this law in 1974, 

the General Assembly has continued to amend Section 6120[(a)], and 

with each amendment, the General Assembly has further restricted the 

ability of municipalities like Philadelphia to address gun violence. At 

the same time, the General Assembly has repeatedly blocked any 

attempt to loosen preemption restrictions, while steadfastly refusing to 

act to curb gun violence at the state level. This combination is a 

dangerous one, and by its actions, the General Assembly has exposed 

the [i]ndividual Petitioners to direct risk of gun violence.

56. The General Assembly’s passage of Section 6120[(a)] and 

amendments thereto, coupled with its refusal to pass evidence-based 

gun safety legislation on the state level, operate to actively prevent an 

effective gun safety approach that would save the lives, property, and 

bodily integrity of Pennsylvania residents, particularly in low-income 

neighborhoods in [Philadelphia and Pittsburgh].

Pet. for Rev. ¶¶ 55-56.

In Franklin Township v. Department of Environmental Resources, 452 A.2d 

718, 721-23 (Pa. 1982), our Supreme Court held that a local municipality had 

standing to challenge the Department of Environmental Resources’ permit for a 

landfill, in light of the “responsibilit[y] of local government” to “protect[] and 

enhance[] . . . the quality of life of its citizens.” I believe that protecting residents 

from gun violence is equally, if not more, essential to the protection and 

enhancement of Philadelphia residents’ quality of life. See City of Phila. v. Com., 

838 A.2d 566, 579 (Pa. 2003) (holding that Philadelphia had standing to challenge 
EC - 9

the effects of allegedly unconstitutional legislation because the legislation interfered 

with Philadelphia’s interests and functions as a governing entity).

I would conclude that Philadelphia has sufficiently averred an interest in this 

litigation that is neither speculative nor remote. Therefore, I would overrule 

Respondents’ objections to Philadelphia’s standing.

C. CeaseFire PA

With regard to the standing of an association, such as CeaseFire PA, our Court 

has explained:

An association has standing to bring an action on behalf of its members 

where at least one of its members is suffering an immediate or 

threatened injury as a result of the challenged action. . . . This rule 

applies equally to nonprofit membership corporations. . . .

To have standing on this basis, the plaintiff organization must allege 

sufficient facts to show that at least one of its members has a 

substantial, direct and immediate interest. . . . Where the organization 

has not shown that any of its members have standing, the fact that the 

challenged action implicates the organization’s mission or purpose is 

not sufficient to establish standing.

Ams. for Fair Treatment, Inc. v. Phila. Fed’n of Teachers, 150 A.3d 528, 533-34 

(Pa. Cmwlth. 2016) (emphasis added); see Papenfuse, 261 A.3d at 473-74.

Here, the Petition for Review does not identify a single member of CeaseFire 

PA who is aggrieved by this matter. That omission alone precludes CeaseFire PA 

from establishing associational standing on behalf of its members.

Furthermore, to the extent Petitioners claim that CeaseFire PA has standing 

based on its mission of advocating for gun control measures, see Pet. for Rev. ¶¶ 41-

48, an en banc panel of this Court recently rejected a similar claim. In Allegheny 

Reproductive Health Center v. Pennsylvania Department of Human Services, 249
EC - 10

A.3d 598, 606 n.11 (Pa. Cmwlth. 2021) (en banc), we stated that “[a]n organization 

does not have standing by virtue of its purpose.” This Court further explained:

“‘Where the organization has not shown that any of its members have standing 

[individually], the fact that the challenged action implicates the organization’s 

mission or purpose is not sufficient to establish standing.’” Id. (quoting Ams. for 

Fair Treatment, 150 A.3d at 534) (emphasis added). Here, CeaseFire PA has not 

demonstrated that any of its members have standing individually; thus, the fact that 

the Firearm Preemption Statutes may implicate CeaseFire PA’s mission or purpose 

is insufficient to confer standing under our Court’s precedent.

8

Therefore, I would sustain Respondents’ objections challenging CeaseFire

PA’s standing.

III. Non-Justiciable Political Questions

Next, Respondents assert that Petitioners’ claims constitute non-justiciable 

political questions that are outside the purview of judicial consideration. Our 

Supreme Court has described the political question doctrine as follows: 

8 Citing federal cases, Petitioners also argue that an organization may establish standing in 

its own right if it has suffered a concrete injury to itself as a result of the complained-of conduct. 

See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982) (“Such concrete and 

demonstrable injury to the organization’s activities—with the consequent drain on the 

organization’s resources—constitutes far more than simply a setback in the organization’s abstract 

social interests.”); Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 308 (3d Cir. 2014) (recognizing 

that to establish an injury to itself, an organization “must show that its activities or operations were 

sufficiently disrupted by the disputed conduct”). Petitioners admit, however, that this Court is not 

bound by federal case law analyzing standing under Article III of the United States Constitution. 

See Pet’rs’ Br. in Opp’n to Prelim. Objs. at 25 n.13.

In any event, even applying that analysis, I would conclude that CeaseFire PA has not 

established standing in its own right. CeaseFire PA avers that the Firearm Preemption Statutes 

have forced it to divert its efforts and resources away from advocacy and public education in order 

to challenge the preemption of local gun control ordinances. See Pet. for Rev. ¶¶ 47-48. These 

generalized allegations do not establish a concrete, discernable injury to the organization’s 

finances or operations as required to establish standing in its own right.
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The applicable standards to determine whether a claim warrants the 

exercise of judicial abstention or restraint under the political question 

doctrine are well[-]settled. Courts will refrain from resolving a dispute 

and reviewing the actions of another branch only where “the 

determination whether the action taken is within the power granted by 

the Constitution has been entrusted exclusively and finally to the 

political branches of government for ‘self-monitoring.’”

William Penn Sch. Dist. v. Pa. Dep’t of Educ., 170 A.3d 414, 437 (Pa. 2017) 

(alteration in original) (citation omitted) (emphasis added). However, courts “‘will 

not refrain from resolving a dispute [that] involves only an interpretation of the laws 

of the Commonwealth, for the resolution of such disputes is our constitutional duty.’” 

Id. at 438 (emphasis added) (citation omitted). Moreover, “‘[t]he need for courts to 

fulfill their role of enforcing constitutional limitations is particularly acute where 

the interests or entitlements of individual citizens are at stake.’” Id. (emphasis 

added) (citation omitted).

Applying these considerations to the averments in the Petition for Review, I 

would conclude that Petitioners’ claims are not barred by the political question 

doctrine. Here, Petitioners allege that the Firearm Preemption Statutes: (1) 

unconstitutionally infringe on their indefeasible rights to life and liberty under 

Article I, Section 1 of the Pennsylvania Constitution; and (2) impermissibly interfere 

with Philadelphia’s public health-related duties statutorily delegated by the 

Commonwealth. Resolution of these claims will require this Court to conduct 

statutory interpretation and to articulate the limitations, if any, on the 

Commonwealth’s constitutional powers with respect to gun control legislation. 

These are not non-justiciable political questions, but lie squarely within our Court’s 

authority. See Council 13, Am. Fed’n of State Cnty. & Mun. Emps. v. Com., 986 

A.2d 63, 75 (Pa. 2009) (recognizing that the judicial branch has the power and 
EC - 12

authority “‘to determine whether the Constitution or laws of the Commonwealth 

require or prohibit the performance of certain acts’”) (citation omitted).

It is true, as Respondents point out, that matters of public policy are reserved 

exclusively for the legislature and that the General Assembly has the discretion to 

decide, as a matter of public policy, whether to enact, amend, or repeal a particular 

statute. While Petitioners make several policy arguments in support of their claims, 

the crux of Petitioners’ allegations is that the Firearm Preemption Statutes impinge 

on the exercise of their fundamental rights under Article I, Section 1 of the 

Pennsylvania Constitution, which weighs in favor of justiciability and against the

finding of a political question. See Gondelman v. Com., 554 A.2d 896, 899 (Pa. 

1989) (“Any concern for a functional separation of powers is, of course, 

overshadowed if the classification impinges upon the exercise of a fundamental 

right[] . . . .”) (emphasis added); Sweeney v. Tucker, 375 A.2d 698, 709 (Pa. 1977)

(“[T]he political question doctrine is disfavored when a claim is made that individual 

liberties have been infringed.”) (emphasis added). Indeed, our Supreme Court has 

stated: “Where civil liberties are concerned, ‘[o]ne does not think of [the legislature] 

as functionally equipped or designed to interpret the Constitution without review, 

nor under our system, does one wish to leave to [the legislature] the unbridled 

authority to determine the constitutionality of its own acts.’” Sweeney, 375 A.2d at 

709-10 (alterations in original) (citation omitted).

Therefore, I would overrule Respondents’ objections based on non-justiciable 

political questions.

IV. Ripeness

Respondents also assert that Petitioners’ claims are not ripe for disposition. 

Respondents assert that, in support of their claims for relief, Petitioners
EC - 13

impermissibly refer to ordinances that have not yet been passed but may be passed 

at some unspecified time in the future, should the Firearm Preemption Statutes be 

deemed unconstitutional. Therefore, Respondents contend that there is no actual 

controversy. However, I believe this contention is belied by the allegations in the 

Petition for Review.

Generally, the doctrine of ripeness requires “the presence of an actual 

controversy.” Bayada Nurses, Inc. v. Dep’t of Lab. & Indus., 8 A.3d 866, 874 (Pa. 

2010). “When determining whether a matter is ripe for judicial review, courts 

generally consider whether the issues are adequately developed and the hardships 

that the parties will suffer if review is delayed.” Id. 

Because the Petition for Review seeks declaratory relief, this case is governed 

by the Declaratory Judgments Act, 42 Pa. C.S. §§ 7531-41. As this Court has 

explained:

[T]he Declaratory Judgments Act[] . . . provides a relatively lenient 

standard for ripeness in declaratory judgment actions. The 

Declaratory Judgments Act is remedial in nature. 42 Pa. C.S. § 7541(a). 

“Its purpose is to settle and to afford relief from uncertainty and 

insecurity with respect to rights, status, and other legal relations, and 

is to be liberally construed and administered.” Id. An action is ripe 

for adjudication under the Declaratory Judgments Act where it presents 

“the ripening seeds of a controversy.” Wecht v. Roddey, 815 A.2d 

1146, 1150 (Pa. Cmwlth. 2002).

Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1217-18 (Pa. Cmwlth. 

2018) (en banc) (emphasis added).

I believe Petitioners have sufficiently alleged that the Firearm Preemption 

Statutes have precluded, and continue to preclude, Philadelphia and Pittsburgh from 

passing much-needed gun control legislation to protect their residents. In their

Petition for Review, Petitioners identify numerous examples of past ordinances –
EC - 14

including permit-to-purchase laws, one-gun-per-month limits, and extreme risk 

protection orders – that have been struck down because of the Firearm Preemption 

Statutes. See Pet. for Rev. ¶¶ 57-60, 92, 99, 110-11, & 124; see also id. ¶ 88

(averring that the General Assembly has blocked 17 previous attempts to narrow or 

repeal the Firearm Preemption Statutes). Petitioners aver that these types of

ordinances, tailored to the specific needs of the communities they are intended to 

protect, would have significantly reduced gun violence if not for the Firearm 

Preemption Statutes. Simply because these ordinances are no longer in effect, or 

were never passed, due to preemption does not render this controversy unripe.

Respondents compare Petitioners’ challenge to the Firearm Preemption 

Statutes with several cases challenging proposed or unenforced legislation. See, e.g., 

President Pro Tempore’s Br. in Support of Prelim. Objs. at 27-29. I believe 

Respondents’ reliance on these cases is misplaced, however, because Petitioners 

here do not challenge proposed legislation or unenforced ordinances. Rather, 

Petitioners challenge the Firearm Preemption Statutes, which are currently in effect 

and have been applied, and continue to be applied, to their detriment. Cf. Phantom 

Fireworks, 198 A.3d at 1218 (distinguishing a challenge to “a zoning ordinance that 

had not been enforced or applied” with a challenge to “a taxing statute” that is 

presently “in force”).

In my view, Petitioners have shown a demonstrable pattern of Pennsylvania 

municipalities passing gun control legislation, only to have that legislation 

subsequently preempted. I do not believe that Philadelphia, or any other 

municipality, is required to pass new gun control ordinances in order to render this 

controversy ripe, particularly in light of the lenient ripeness standard applicable in

declaratory judgment actions.
EC - 15

Therefore, because I would conclude that “the ripening seeds of a 

controversy” are clearly present here, I would overrule Respondents’ objections

based on ripeness.

V. Res Judicata and Collateral Estoppel

Respondents assert that Philadelphia’s causes of action are barred by the 

doctrines of res judicata and collateral estoppel. Our Court has explained these

principles as follows:

Res judicata encompasses two related, yet distinct principles: technical 

res judicata and collateral estoppel. Technical res judicata provides that 

where a final judgment on the merits exists, a future lawsuit on the same 

cause of action is precluded. Collateral estoppel acts to foreclose 

litigation in a subsequent action where issues of law or fact were 

actually litigated and necessary to a previous final judgment.

Technical res judicata requires the coalescence of four factors: (1) 

identity of the thing sued upon or for; (2) identity of the causes of 

action; (3) identity of the persons or parties to the action; and (4) 

identity of the quality or capacity of the parties suing or being sued. 

Res judicata applies to claims that were actually litigated as well as 

those matters that should have been litigated. Generally, causes of 

action are identical when the subject matter and the ultimate issues are 

the same in both the old and new proceedings.

Similarly, collateral estoppel bars a subsequent lawsuit where (1) an 

issue decided in a prior action is identical to one presented in a later 

action, (2) the prior action resulted in a final judgment on the merits, 

(3) the party against whom collateral estoppel is asserted was a party to 

the prior action, or is in privity with a party to the prior action, and (4), 

the party against whom collateral estoppel is asserted had a full and fair 

opportunity to litigate the issue in the prior action. 

J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936, 939 (Pa. Cmwlth. 2002) (internal 

citations omitted) (emphasis added).
EC - 16

In arguing that Philadelphia’s action is barred by res judicata and collateral 

estoppel, Respondents rely on three cases: Ortiz; Clarke v. House of 

Representatives, 957 A.2d 361 (Pa. Cmwlth. 2008), aff’d, 980 A.2d 34 (Pa. 2009); 

and Schneck v. City of Philadelphia, 383 A.2d 227 (Pa. Cmwlth. 1978).

Ortiz was a declaratory judgment action in which members of Philadelphia’s

City Council and others sued the Governor, the Pennsylvania Attorney General, and 

Philadelphia’s District Attorney. The Ortiz petitioners sought to enjoin Section 

6120(a)’s preemption of local assault weapons regulations enacted by Philadelphia 

and Pittsburgh, as well as a declaration that Section 6120(a) violated both cities’

home rule power to enact local legislation. Clarke was a declaratory judgment action 

in which members of Philadelphia’s City Council sought a declaration that several 

of Philadelphia’s then-existing gun control ordinances were not preempted by 

Section 6120(a). Schneck was a class action suit against Philadelphia in which 

individual gun purchasers sought to enjoin enforcement of a Philadelphia firearm 

ordinance on preemption grounds.

None of these cases, however, involved an Article I, Section 1 constitutional 

challenge, nor did they challenge the Firearm Preemption Statutes’ interference with 

Philadelphia’s ability to fulfill its delegated duties under the Local Health 

Administration Law (LHAL), Act of August 24, 1951, P.L. 1304, as amended, 16 

P.S. §§ 12001-12028, or the Disease Prevention and Control Law of 1955 (DPCL), 

Act of April 23, 1956, P.L. (1955) 1510, as amended, 35 P.S. §§ 521.1-521.21. As 

such, the causes of action in this case differ significantly from the causes of action 

in Ortiz, Clarke, and Schneck.

Respondents’ collateral estoppel objection fails for the same reason. 

Collateral estoppel bars a subsequent lawsuit only where a legal issue decided in the
EC - 17

prior action is identical to one presented in the later action. J.S., 794 A.2d at 939. 

As explained above, the Courts in Ortiz, Clarke, and Schneck did not consider or 

decide whether the Firearm Preemption Statutes violate individual citizens’ rights 

under Article I, Section 1 of the Pennsylvania Constitution or whether they interfere 

with Philadelphia’s delegated duties under the LHAL or the DPCL.

Therefore, because this case involves different causes of action and different 

legal issues than the prior cases, I would overrule Respondents’ objections based on 

res judicata and collateral estoppel.

VI. Scandalous or Impertinent Matter

President Pro Tempore of the Pennsylvania Senate Jake Corman (President 

Pro Tempore) objects to numerous paragraphs in the Petition for Review on the basis 

that they contain scandalous or impertinent averments. In particular, he contends 

that the challenged averments “cast a derogatory light on the General Assembly or 

the Commonwealth,” “pertain to statements and information regarding gun violence 

that certain legislators presented to the General Assembly as it was considering 

whether to enact or amend the [Firearm] Preemption [Statutes],” “concern how [the 

i]ndividual Petitioners or other citizens were impacted by gun violence,” and “are 

focused on irrelevant background information or are purely speculative.” President 

Pro Tempore’s Br. in Support of Prelim. Objs. at 48-49.

Under our Rules of Civil Procedure, preliminary objections may be filed for 

“failure of a pleading to conform to law or rule of court or inclusion of scandalous 

or impertinent matter.” Pa.R.Civ.P. 1028(a)(2). To be scandalous and impertinent, 

“the allegations must be immaterial and inappropriate to the proof of the cause of 

action.” Common Cause/Pa. v. Com., 710 A.2d 108, 115 (Pa. Cmwlth. 1998) (en 

banc), aff’d, 757 A.2d 367 (Pa. 2000). However, “the right of a court to strike 
EC - 18

impertinent matter should be sparingly exercised and only when [the objecting] party 

can affirmatively show prejudice.” Dep’t of Env’t Res. v. Hartford Accident & 

Indem. Co., 396 A.2d 885, 888 (Pa. Cmwlth. 1979) (emphasis added). 

Here, President Pro Tempore offers a lengthy list of allegedly offending 

paragraphs in the Petition for Review and categorizes them by the general manner 

in which he believes they run afoul of Pa.R.Civ.P. 1028(a)(2). See President Pro 

Tempore’s Br. in Support of Prelim. Objs. at 47-51. However, President Pro 

Tempore does not identify the specific language in each paragraph to which he takes 

offense, nor does he explain how he has been prejudiced by any of the challenged 

averments. Instead, he baldly asserts that the averments are “wholly irrelevant to 

Petitioners’ causes of action and in some respects scandalous[] too.” Id. at 51. I 

would conclude that this unsupported declaration is insufficient to justify striking

the averments.

Therefore, I would overrule President Pro Tempore’s objections based on 

scandalous or impertinent averments.

VII. Demurrer

I will now turn to the three demurrer Preliminary Objections that form the 

basis of the Majority’s Opinion.

A. State-Created Danger

First, I disagree with the Majority’s conclusion that Petitioners have failed to 

plead a legally sufficient state-created danger claim. To state a claim of state-created 

danger, a petitioner must satisfy four requirements:

(1) the harm ultimately caused was foreseeable and fairly direct;

(2) a state actor acted with a degree of culpability that shocks the 

conscience;
EC - 19

(3) a relationship between the state and the [petitioner] existed such that 

the [petitioner] was a foreseeable victim of the [respondent’s] acts, or a 

member of a discrete class of persons subjected to the potential harm 

brought about by the state’s actions, as opposed to a member of the 

public in general; and

(4) a state actor affirmatively used his or her authority in a way that 

created a danger to the citizen or that rendered the citizen more 

vulnerable to danger than had the state not acted at all.

Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (internal quotation 

marks and footnotes omitted).

In concluding that Petitioners have failed to state a viable state-created danger 

claim, the Majority relies on Johnston v. Township of Plumcreek, 859 A.2d 7 (Pa.

Cmwlth. 2004). In Johnston, residents of several townships challenged local 

ordinances requiring them to connect their homes to the public water system, which 

they claimed were unconstitutional due to the threat of terrorist attacks upon the 

public water supply. The Johnston Court considered the state-created danger

doctrine in the context of the residents’ substantive due process claims made under

42 U.S.C. § 1983, relating to violations of civil rights, and Article I, Section 1 of the 

Pennsylvania Constitution, ultimately concluding that the doctrine was not 

applicable to either claim. This Court held:

First, the state-created danger [doctrine] has been used to make states 

liable in damages where the state, by affirmative exercise of its power, 

has rendered an individual unable to care for himself. The leading case 

in this area of law is DeShaney v. Winnebago County Department of 

Social Services, 489 U.S. 189[] . . . (1989), in which the [United States] 

Supreme Court held that a county agency could not be held liable in 

damages where a child suffered abuse while in his father’s custody.

The Court reasoned that the Due Process Clause does not guarantee 

minimal safety for citizens but, rather, protects citizens from 

overreaching by the state. DeShaney placed limits upon what is known 
EC - 20

as the “state-created danger” theory for creating Section 1983 civil 

rights liability in damages to the situation where the state has limited 

the liberty of the citizen to act in his own behalf. However, as far as 

can be determined, the “stated-created danger” body of jurisprudence 

has never been used to nullify a statute or ordinance.

Second, even if the “state-created danger” theory could be used to 

render a statute unconstitutional, it does not fit the facts of this 

complaint. In Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th 

Cir. 1998), the [United States] Court of Appeals [for the Sixth Circuit] 

held that the state could not be held liable for a “risk that affects the 

public at large.” The state has to be aware that its actions specifically 

endanger an individual in order to be held liable. . . . All government

activities involve some risk; for example, motorists are killed each year 

on state highways. The mere construction of a highway, however, does 

not give rise to civil rights liability to each of those accident victims in 

part because the risk is general and not specific to an individual. Here, 

the trial court correctly observed that the harm alleged by Residents was 

conjectural, not imminent and real.

The [o]rdinances do not violate [the r]esidents’ substantive due process 

rights under the state-created danger theory. Under DeShaney, the 

[t]ownships do not have an obligation to guarantee that terrorists, who 

are private actors whether homegrown or international, will not 

contaminate the [w]ater [a]uthority’s system. Further, there are no 

allegations in the complaint that [the r]esidents, as opposed to any and 

all citizens of this country, are in imminent danger and at special risk. 

Most importantly, the state-created danger theory is a construct by 

which damages are awarded for constitutional torts. It is not used to 

nullify statutory law, and we will not do so here.

Johnston, 859 A.2d at 12-14 (footnotes omitted).

Significantly, in reaching this decision, the Johnston Court emphasized that 

“if the ‘state-created danger’ theory could be used to render a statute 

unconstitutional, it [did] not fit the facts of th[at] complaint” because “the harm 

alleged by [the r]esidents was conjectural, not imminent and real,” and because 

“there [were] no allegations in the complaint that [the r]esidents, as opposed to any 
EC - 21

and all citizens of this country, [were] in imminent danger and at special risk.” Id.

at 13-14 (emphasis added). It was on this basis that our Court concluded that the 

residents could not establish a state-created danger claim.

I believe Johnston is factually distinguishable from this case in a critical

respect. The alleged harm in Johnston was purely conjectural. The residents in 

Johnston “asserted that as a result of the terrorist attacks on September 11, 2001, and 

the nation’s war on terrorism, there is now a real and present danger of terrorist 

attacks on public water systems.” Id. at 9. However, as this Court noted, “[t]here 

[were] no allegations, for example, that the [w]ater [a]uthority, the [t]ownships or 

Armstrong County ha[d] been identified as special targets for terrorists.” Id. at 13 

n.15 (emphasis added). Here, however, the individual Petitioners have articulated

precisely how the Firearm Preemption Statutes have placed them at “special risk”

compared to the general public due to their ethnicities, the cities in which they live, 

and the recent shooting deaths of their loved ones. These allegations are not based 

on conjecture, but on very real facts. See Pet. for Rev. ¶¶ 9(a)-18(f). Contrary to 

the Majority, I do not believe our Court’s pronouncement in Johnston – that “as far 

as can be determined,” the state-created-danger doctrine “has never been used to 

nullify a statute or ordinance” – should be read as blanketly prohibiting all statecreated-danger challenges to state laws, because our ruling in that case was clearly 

limited to its facts. See Johnston, 859 A.2d at 13-14.9

I would conclude that Petitioners have stated a legally sufficient state-created 

danger claim. Therefore, I would overrule this objection.

9 As Petitioners correctly point out, no Pennsylvania appellate court has cited or relied on

Johnston for its state-created danger analysis since the decision was issued in 2004.
EC - 22

B. Substantive Due Process

Petitioners allege that the Firearm Preemption Statutes violate their 

substantive due process rights to enjoy and defend life and liberty under Article I, 

Section 1 of the Pennsylvania Constitution. Our Supreme Court has explained:

Substantive due process is the “esoteric concept interwoven within our 

judicial framework to guarantee fundamental fairness and substantial 

justice,” and its precepts protect fundamental liberty interests against 

infringement by the government. . . .

[F]or substantive due process rights to attach there must first be the 

deprivation of a property right or other interest that is constitutionally 

protected.

Khan v. State Bd. of Auctioneer Exam’rs, 842 A.2d 936, 946 (Pa. 2004) (emphasis 

added) (footnote and internal citation omitted). In particular, Petitioners assert that 

the Article I, Section 1 protections include the right to “enjoy[] and defend[] life and 

liberty” and that the Firearm Preemption Statutes prevent Petitioners from protecting 

themselves from gun violence.

The Majority applies the rational basis test to Petitioners’ substantive due 

process challenge and concludes that the Firearm Preemption Statutes bear a 

substantial relationship to a legitimate state interest – namely, the statewide 

regulation of firearms. Even assuming that the rational basis test is the correct 

standard to be applied here, I would conclude that Petitioners have stated a legally 

sufficient substantive due process claim.

The General Assembly’s power to preempt local legislation is not absolute, 

and our Supreme Court has previously struck down preemption statutes that violate 

Article I of the Pennsylvania Constitution. See, e.g., Robinson Twp. v. Com., 83 
EC - 23

A.3d 901, 946 (Pa. 2013).

10

 That is because preemption statutes, like other laws, are 

“subject to restrictions enumerated in the [Pennsylvania] Constitution and to 

limitations inherent in the form of government chosen by the people of this 

Commonwealth,” including “the express exception of certain fundamental rights 

reserved to the people in Article I of our Constitution.” League of Women Voters v. 

Com., 178 A.3d 737, 803 (Pa. 2018).

Citing Ortiz, the Majority concludes that the Firearm Preemption Statutes

further the Commonwealth’s legitimate interest in regulating citizens’ possession 

and ownership of firearms on a statewide basis. In Ortiz, the Supreme Court was 

faced with a constitutional challenge involving the right to bear arms under Article 

I, Section 21 of the Pennsylvania Constitution. The Ortiz Court concluded:

Because the ownership of firearms is constitutionally protected, its 

regulation is a matter of statewide concern. The [Pennsylvania 

C]onstitution does not provide that the right to bear arms shall not be 

questioned in any part of the [C]ommonwealth except Philadelphia and 

Pittsburgh, where it may be abridged at will, but that it shall not be 

questioned in any part of the [C]ommonwealth. Thus, regulation of 

firearms is a matter of concern in all of Pennsylvania, not merely in 

Philadelphia and Pittsburgh, and the General Assembly, not city 

councils, is the proper forum for the imposition of such regulation.

681 A.2d at 156 (emphasis added); accord Clarke, 957 A.2d at 364 (invalidating 

local ordinances that “regulate[d] firearms – an area that both Section 6120[(a)] and 

[Ortiz] have made clear is an area of statewide concern over which the General 

Assembly has assumed sole regulatory power”).

10 Notably, the Supreme Court’s plurality decision in Robinson Township did not endorse 

or reject our Court’s Article I, Section 1 substantive due process analysis and deemed the 

environmental statute at issue unconstitutional on other grounds. Justice Baer, in his Concurring 

Opinion, specifically stated that he agreed with our Court’s substantive due process analysis and 

believed it was the proper basis for ruling that the challenged statute was unconstitutional. See 

Robinson Twp., 83 A.3d at 1001-08 (Baer, J., concurring).
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Critically, however, Ortiz did not involve a substantive due process challenge 

under Article I, Section 1 of the Pennsylvania Constitution, as is alleged in this case. 

In light of Ortiz’s holding that the “regulation of firearms is a matter of concern in 

all of Pennsylvania,” this Court is being asked to balance the constitutional right of 

Petitioners to defend their lives and liberty under Article I, Section 1 and the 

constitutional right of all Pennsylvania citizens to bear arms under Article I, Section 

21. That question was not before the Supreme Court in Ortiz. Therefore, I do not 

believe Ortiz bars the present substantive due process challenge to the Firearm 

Preemption Statutes.

Furthermore, 26 years have passed since Ortiz was decided. The United States 

of 1996 is very different from the United States of 2022. As painstakingly described 

in the Petition for Review, gun violence in our country and in our Commonwealth 

has reached epidemic levels and is wreaking havoc on the lives of the individual 

Petitioners and their families. Perhaps it is time for our Supreme Court to revisit 

Ortiz in light of these circumstances.

At this stage of the proceedings, this Court need only consider whether the 

Petition for Review adequately alleges a substantive due process claim under Article 

I, Section 1 of the Pennsylvania Constitution. I believe that it does. Therefore, I 

would overrule this objection.

C. Interference with Delegation

Lastly, I disagree with the Majority’s conclusion that Philadelphia (the only 

Petitioner to assert this claim) has failed to state a viable claim of interference with 

delegated duties. In the Petition for Review, Philadelphia avers that Section 6120(a)

impermissibly interferes with the public health-related duties that the 

Commonwealth expressly delegated to it under both the LHAL and the DPCL.
EC - 25

Section 10(c) of the LHAL provides in pertinent part: “After it has been 

established, the county department of health . . . shall prevent or remove conditions 

which constitute a menace to public health.” 16 P.S. § 12010(c). In this case, 

Philadelphia has specifically alleged that gun violence is a menace to the public 

health of its residents. Pet. for Rev. ¶¶ 32-35, & 148. It has also offered specific 

examples of how gun violence poses a health risk to the individual Petitioners who 

reside in high-crime, low-income neighborhoods in Philadelphia. See id. ¶¶ 9-18. 

Philadelphia avers that without localized gun control measures, it is unable to protect 

its residents from the high rate of firearm homicides, id. ¶ 32, the mental health crisis 

manifest in increasing firearm suicides occurring in Philadelphia, id. ¶ 36, and the 

physical and mental health crises experienced by residents of high-crime

neighborhoods due to their fears of gun violence, id. ¶¶ 9-18. 

Section 3(a) of the DPCL states:

Local boards and departments of health shall be primarily responsible 

for the prevention and control of communicable and noncommunicable disease, including disease control in public and private 

schools, in accordance with the regulations of the board and subject to 

the supervision and guidance of the [Pennsylvania D]epartment [of 

Health].

35 P.S. § 521.3(a) (emphasis added).

11 Under this provision, the Commonwealth 

has delegated to Philadelphia the primary responsibility of preventing and 

controlling “non-communicable disease” and the authority to address conditions 

within its borders that contribute to the spread of non-communicable disease. In this 

case, Philadelphia avers that gun violence contributes to the spread of disease in 

11 Section 2(f) of the DPCL defines “local board or department of health” as “[t]he board 

of health or the [d]epartment of public health of a city, borough, incorporated town or township of 

the first class, or a county department of health, or joint county department of health.” 35 P.S. § 

521.2(f).
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Philadelphia by filling hospital beds with individuals injured by gun violence, 

inflicting severe mental trauma on the victims of gun violence, and imposing other 

public health-related ills on the city’s institutions. See Pet. for Rev. ¶¶ 13(e), 34, 36, 

40, 49, 51, & 52; cf. Pa. Rest. & Lodging Ass’n v. City of Pittsburgh, 211 A.3d 810, 

828-29, & nn.17-18 (Pa. 2019) (concluding that a city ordinance requiring paid sick 

leave “relat[es] to disease prevention and control” by preventing sick individuals 

from showing up to work).

Respondents contend that neither the LHAL nor the DPCL grants 

Philadelphia the authority to enact legislation in areas expressly preempted by the 

General Assembly. Philadelphia, however, does not argue that the statutes grant 

such authority; rather, Philadelphia argues that it has been given the responsibility, 

but not the authority, to pass local regulations to address the public health crisis 

caused by gun violence. Philadelphia avers that, in this way, Respondents have 

interfered with its statutorily delegated duties.

Our Supreme Court has recognized that the Commonwealth has a 

fundamental duty to “maintain order and to preserve the safety and welfare of all 

citizens.” Cnty. of Allegheny v. Com., 490 A.2d 402, 410-11 (Pa. 1985). Pursuant 

to the LHAL and the DPCL, the Commonwealth expressly delegated a portion of 

this duty to Philadelphia, by charging county health departments with the “protection 

and promotion of the health of the people,” Section 2(a) of the DPCL, 16 P.S. § 

12002(a), the prevention or removal of “conditions which constitute a menace to 

public health,” Section 10 of the DPCL, 16 P.S. § 12010, and the prevention and 

control of the spread of “non-communicable disease,” Section 3(a) of the LHAL, 35 

P.S. § 521.3(a). Petitioners aver that by continuing to enforce and expand the

Firearm Preemption Statutes, Respondents have deprived Philadelphia of its ability 
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to carry out these duties, because it cannot enact life-saving ordinances that would 

protect its residents from gun violence. See Pa. Rest., 211 A.3d at 828 (explaining 

that the DPCL is “a holistic scheme that, for purposes of disease prevention and 

control, favors local regulation . . . over state-level regulation, and correspondingly 

allows local lawmakers to impose more stringent regulations than state law 

provides”) (emphasis added); Section 16 of the DPCL, 35 P.S. § 521.16 (allowing 

municipalities to “enact ordinances or issue rules and regulations relating to disease 

prevention and control, which are not less strict than the provisions of this act or the 

rules and regulations issued thereunder by the [State Advisory Health B]oard”).

In rejecting Petitioners’ interference with delegation claim, the Majority relies 

exclusively on Ortiz and concludes that its holding necessarily forecloses 

Petitioners’ claim. I cannot agree. As discussed above, Ortiz involved 

Philadelphia’s authority to enact gun control legislation pursuant to its home rule 

charter. The petitioners in Ortiz did not raise an interference with delegation claim,

nor was the Supreme Court asked to consider the impact of Section 6120(a) on 

Philadelphia’s statutorily delegated duties under either the LHAL or the DPCL. 

I would conclude that the Petition for Review states a legally sufficient claim 

that Respondents have impermissibly interfered with Philadelphia’s statutorily 

delegated duties under the LHAL and the DPCL. Therefore, I would overrule this 

objection.

VIII. Conclusion

It is well settled that “[i]n order to sustain preliminary objections, it must 

appear with certainty that the law will not permit recovery, and any doubt should be 

resolved by a refusal to sustain them.” Pa. Virtual Charter Sch. v. Dep’t of Educ., 

244 A.3d 885, 889 (Pa. Cmwlth. 2020) (en banc) (emphasis added). I would 
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conclude that Respondents have not shown with certainty that the law will not permit 

recovery in this case. I believe Petitioners have pled sufficient facts to overcome 

Respondents’ Preliminary Objections, except for their challenge to CeaseFire PA’s 

standing.

While I recognize that Ortiz is binding precedent, it did not address the 

specific constitutional challenge asserted here. Ortiz was also decided in 1996. In 

the nearly three decades since that decision, gun violence in our Commonwealth has 

skyrocketed, increasing exponentially in the past few years alone. Allowing local 

municipalities to adopt more stringent regulations to protect their residents from gun 

violence is becoming an increasingly urgent matter. As Justice Russell Nigro 

convincingly stated in his Dissenting Opinion in Ortiz: “[W]henever the state 

legislature fails to enact a statute to address a continuing problem of major concern 

to the citizens of the Commonwealth, a municipality should be entitled to enact its 

own local ordinance in order to provide for the public safety, health and welfare of 

its citizens.” 681 A.2d at 157 (Nigro, J., dissenting). I could not agree more.

Therefore, I would overrule each of Respondents’ Preliminary Objections to

the Petition for Review, except for the objection challenging CeaseFire PA’s 

standing. For these reasons, I respectfully dissent from the Majority’s Opinion.

__________________________________

ELLEN CEISLER, Judge

Judge Wojcik joins in this Dissenting Opinion.