J-A15041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

JASON ANDERSON : No. 2764 EDA 2014

Appeal from the Order Entered May 22, 2014

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s): CP-51-CR-0001233-2014

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

CONCURRING MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2016

Although I agree with the learned majority’s determination to reverse 

the trial court’s order and remand this matter for further proceedings, I 

would do so on different grounds. The majority concludes that Appellee’s 

argument based on Act 235, and the trial court reasons for dismissal of the 

charges, was related to the firearm licensing exception in 18 Pa.C.S. § 

6106(b)(6). Majority Mem. at 6. It thus declines to express an opinion on 

the interplay between Section 6106(b)(6) and Act 235, because Section 

6106(b)(6) is an affirmative defense. Id. at 7. In my view, there are no 

relevant issues of material fact underlying the instant dispute, and it would 

 

*

Former Justice specially assigned to the Superior Court.
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be more appropriate to consider the interplay among the relevant statutes 

even at this preliminary stage of the underlying matter. 

Preliminarily, I respectfully disagree with the majority’s decision to 

frame the issue presented as an invocation of the affirmative defense under 

Section 6106(b)(6). See Trial Ct. Op., 9/24/14, at 6 (suggesting Section 

6106 and 6108 are irreconcilable with Act 235); Appellee’s Brief at 4 (noting, 

for the purposes of his pre-trial motion, that Section 6106(b)(6) applies 

“when the individual is carrying out [his] duties,” but that it would be 

impractical to interpret Act 235 as not permitting an individual to go to and 

from duty while carrying a lethal weapon). In my view, identification of a 

claim as an affirmative defense does not preclude review of a legal question 

when there are no issues of material fact. To determine whether a disputed 

fact is material, we must consider the statutes at issue. 

When considering the interpretation and interaction of statutes, the 

standard of review is de novo and the scope of review is plenary. 

Commonwealth v. Stotelmyer, 110 A.3d 146, 149 (Pa. 2015). 

In all matters involving statutory interpretation, we apply 

the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq., 

which provides that the object of interpretation and 

construction of statutes is to ascertain and effectuate the 

intention of the General Assembly. 1 Pa.C.S. § 1921(a). A 

statute’s plain language generally provides the best 

indication of legislative intent. Only where the words of a 

statute are not explicit will we resort to other 

considerations to discern legislative intent. 1 Pa.C.S. § 

1921(c).
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Commonwealth v. McCoy, 962 A.2d 1160, 1166 (Pa. 2009) (some 

citations omitted). 

When the words of the statute are not explicit, the 

intention of the General Assembly may be ascertained by 

considering, among other matters:

(1) The occasion and necessity for the statute.

(2) The circumstances under which it was enacted.

(3) The mischief to be remedied.

(4) The object to be attained.

(5) The former law, if any, including other statutes upon 

the same or similar subjects.

(6) The consequences of a particular interpretation.

(7) The contemporaneous legislative history.

(8) Legislative and administrative interpretations of 

such statute.

1 Pa.C.S. § 1921(c). “[W]hen the courts of this Commonwealth are faced 

with interpreting statutory language, they afford great deference to the 

interpretation rendered by the administrative agency overseeing the 

implementation of such legislation.” Banfield v. Cortes, 110 A.3d 155, 174 

(Pa. 2015) (citation omitted). 

The statutes relevant to this appeal are as follows. The 

Commonwealth charged Appellee with firearms not to be carried without a 

license and carrying a firearm on public streets or public property in 
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Philadelphia. See 18 Pa.C.S. §§ 6106(a)(1), 6108. Section 6106 states in 

relevant part:

(a) Offense defined.—

(1) . . . any person who carries a firearm in any vehicle 

or any person who carries a firearm concealed on or 

about his person, except in his place of abode or fixed 

place of business, without a valid and lawfully issued 

license under this chapter commits a felony of the third 

degree.

* * *

(b) Exceptions.—The provisions of [18 Pa.C.S. § 

6106(a)] shall not apply to: 

* * *

(6) Agents, messengers and other employees of 

common carriers, banks, or business firms, whose 

duties require them to protect moneys, valuables and 

other property in the discharge of such duties.

18 Pa.C.S. § 6106(a)(1), (b)(6).1

Section 6108 provides: 

No person shall carry a firearm, rifle or shotgun at any 

time upon the public streets or upon any public property in 

a city of the first class unless:

(1) such person is licensed to carry a firearm;[2]or

 

1 Section 6106(b) lists sixteen total exceptions.

2

Licensure is an element of Section 6106(a)(1), but an affirmative defense 

to Section 6108. Commonwealth v. Bigelow, 399 A.2d 392, 396 (Pa. 

1979). 
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(2) such person is exempt from licensing under section 

6106(b) of this title (relating to firearms not to be 

carried without a license).

18 Pa.C.S. § 6108. 

Additionally, Section 6109 sets forth the following relevant licensing 

provisions: 

(a) Purpose of license.—A license to carry a firearm 

shall be for the purpose of carrying a firearm concealed on 

or about one’s person or in a vehicle throughout this 

Commonwealth.

(b) Place of application.—An individual who is 21 years 

of age or older may apply to a sheriff for a license to carry 

a firearm concealed on or about his person or in a vehicle 

within this Commonwealth. If the applicant is a resident of 

this Commonwealth, he shall make application with the 

sheriff of the county in which he resides or, if a resident of 

a city of the first class, with the chief of police of that city.

* * *

(g) Grant or denial of license.—Upon the receipt of an 

application for a license to carry a firearm, the sheriff shall, 

within 45 days, issue or refuse to issue a license on the 

basis of the investigation under subsection (d) and the 

accuracy of the information contained in the application. If 

the sheriff refuses to issue a license, the sheriff shall notify 

the applicant in writing of the refusal and the specific 

reasons. . . . 

18 Pa.C.S. § 6109(a), (b), (g). 

Act 235 defines the following terms. “‘Privately employed agents’ 

include any person employed for the purpose of providing watch guard, 

protective patrol, detective or criminal investigative services either for 

another for a fee or for his employer.” 22 P.S. § 43. “‘Lethal weapons’ 
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include but are not limited to firearms and other weapons calculated to 

produce death or serious bodily harm,” including a “concealed billy club.” 

Id.

Act 235 requires the Commissioner of the Pennsylvania State Police to 

implement “physical and psychological testing and screening of the 

candidate for the purpose of barring from the program those not physically 

or mentally fit to handle lethal weapons.” 22 P.S. § 45(2). Further, the 

commissioner must “implement and administer or approve the minimum 

courses of study and training in the handling of lethal weapons, law 

enforcement and protection of the rights of citizens.” 22 P.S. § 45(1). The 

commissioner, following a review of an application, may issue a “certificate 

of qualification,” which “entitles the applicant to enroll in an approved 

program.” 22 P.S. § 46(f). The commissioner later certifies “those 

individuals who have satisfactorily completed basic educational and training 

requirements” and issues “appropriate certificates” and “an appropriate 

wallet or billfold size copy of the certificate” to the agent. 22 P.S. §§ 45(7), 

47(b). The certificate issued upon completion of the education and training 

requirements is the Act 235 certificate referred to in this appeal. 

As to privately employed agents, Act 235 establishes the following 

requirements. “All privately employed agents . . . who, as an incidence to 

their employment, carry a lethal weapon shall be required to attend” “[a]n 

education and training program in the handling of lethal weapons, law 
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enforcement and protection of rights of citizens . . . .” 22 P.S. § 44(a), (b). 

“Privately employed agents must possess a valid certificate whenever on 

duty or going to and from duty and carrying a lethal weapon.” 22 P.S. § 

48(a). “Every certified individual shall carry his wallet or billfold size 

certificate on his person as identification during the time when he is on duty 

or going to and from duty and carrying a lethal weapon.” 22 P.S. § 47(c). 

Act 235 contains the following penalties. “Any privately employed 

agent who in the course of his employ carries a lethal weapon, and who fails 

to comply with” 22 P.S. §§ 44(b) or 48(a), regarding possession of a 

certificate, commits an ungraded misdemeanor. 22 P.S. § 49(a). “Any 

privately employed agent who in the course of his employ carries a lethal 

weapon, and who violates” 22 P.S. § 47(c), requiring the carrying of a 

certificate when “on duty or going to and from duty and carrying a lethal 

weapon,” commits a summary offense. See 22 P.S. § 49(b). 

Notably, the language of Act 235 is obligatory. A privately employed 

agent must be qualified, complete the education and training components, 

and then carry the issued certification when carrying a firearm on duty or 

going to and from duty. Act 235, contains no permissive language, 

particularly when contrasted against Section 6109’s language that “[a] 

license to carry a firearm shall be for the purpose of carrying a firearm 

concealed on or about one’s person or in a vehicle throughout this 

Commonwealth.” See 18 Pa.C.S. § 6109(a). This interpretation of the plain 
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language of each statute, as well as the interplay of the statutes, supports 

the Pennsylvania State Police’s view that “[t]he issuance of a certification 

card to a privately employed agent does not grant the agent the right or 

privilege to carry, possess, own, or have under his control a firearm contrary 

to 18 Pa.C.S. §§ 6101-6120 (relating to Uniform Firearms Act).” 37 Pa. 

Code § 21.26(d). 

Furthermore, even if ambiguity exists in the application of either Act 

235 or the Uniform Firearms Act, consideration the mischief to be remedied 

and the object to be attained by the statutes is illuminating. Section 6106 

and 6108 seek to regulate the unlicensed carrying of firearms in a particular 

manner or in a particular location. The express purposes of Act 235 is to 

provide for the education and training of privately employed agents. Each 

statute is given their fullest intended effect if they are construed as 

independent but overlapping regulations.3 See Stotelmyer, 110 A.3d at 

150. 

 In sum, I believe the question of the interplay between the 

Pennsylvania Uniform Firearm Act and Act 235 is properly before this Court, 

and this Court should clearly answer the legal question presented. Such 

clarity is of paramount importance to the instant parties and the trial court in 

preparation for trial. Furthermore, similarly situated individuals and entities 

 

3 There is nothing novel in this approach to Section 6106, 6108, and 6109 

and Act 235 in light of the past practices of this Court.
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would benefit from a definitive answer in this area. Accordingly, I would 

hold that Act 235 does not operate as a “provisional license” that excuses a 

failure to possess a valid license. 

Thus, I respectfully concur in the result.