Erie Litigation Update

I know it has been a while since I have blogged about the current status of the Erie litigation, 1038 CD 2013, in relation to 18 PA.C.S. 6120. As I have been somewhat inundated with work, I wanted to quickly bring everyone up to speed.

I previously blogged about the Motion to Stay Pending Appeal that was filed with the PA Supreme Court. On July 19, 2013, the PA Supreme Court denied our Motion to Stay Pending Appeal. You can download the docket here – 45 WM 2013. Per the Rules of Appellate Procedure, this decision was made by one, unknown, Justice of the PA Supreme Court. Thereafter, the case was transferred back to the Commonwealth Court for the underlying appeal to proceed.

The Commonwealth Court directed us to file our brief and reproduced record by September 23, 2013 and we filed them on September 12, 2013. On September 19, 2013, the City of Erie filed a Motion to Quash our appeal, stating that the Court lacked jurisdiction in this matter. On September 24, 2013, we filed a Motion to Expedite because of criminal charges being filed against Mr. Dillon, and seven others, in relation to the underlying rally, for which we originally sought the preliminary injunction. On October 8, 2013, the Court issued a somewhat scathing Order denying the City’s Motion to Quash and granting our Motion to Expedite.

On October 10, 2013, the City of Erie filed its brief, which was all of 7 pages (our brief was 55 pages with Exhibits), only arguing whether the Court had jurisdiction to hear the matter (recitation of its Motion to Quash).

On October 24, 2013, the Court, sua sponte, vacated in part, the October 8, 2013 Order and directed that oral argument was to be now scheduled for the Court sitting en banc on December 11, 2013 in Harrisburg, instead of being listed is Pittsburgh before a three judge panel. This suggests that the Commonwealth Court is taking this matter extremely seriously, as en banc considerations are rare in the absence of Court splits.

Because the City of Erie had not responded to the issues we raised in our brief, we filed a Motion to Clarify the Issues on Appeal, since, pursuant to PA.R.A.P. 2112,

The brief of the appellee, except as otherwise prescribed by these rules, need contain only a summary of argument and the complete argument for appellee and may also include counter-statements of any of the matters required in the appellant’s brief as stated in Pa.R.A.P. 2111(a). Unless the appellee does so, or the brief otherwise challenges the matters set forth in the appellant’s brief, it will be assumed the appellee is satisfied with them, or with such parts of them as remain unchallenged.” (Emphasis added).

Thereafter, the City of Erie filed a Motion to Amend its Brief. On November 13, 2013, the Court denied our Motion to Clarify. On November 15, 2013, we filed an Answer opposing the City’s Motion to Amend and on November 18, 2013, the Court denied the City’s Motion to Amend.

What exactly does this mean? At a minimum, the City has been precluded from filing an amended brief and arguing the issues that were raised in our original brief. It is unknown whether the Court will preclude the City from arguing the issues we raised in our brief during oral argument. It is also unknown what issues the Court may sua sponte raise during oral argument. Until this matter is settled, I am not going to post our strategy because that will only provide the City with further time to prepare and possible arguments. I already understand that one Judge on the Commonwealth Court is aware of arguments being proffered on a pro-gun internet forum, wherein the arguments could be used by the City to help it defend against Section 6120.

The most interesting aspect of this appeal has been the keyboard commandos, individuals and attorneys alike, who, not having seen any of the pleadings, have decided to interject their thoughts and allegations on what has been handled incorrectly in this matter and that the proper foundation was not laid for the appeal. They might want to take some time and review the prior two cases against the City of Philadelphia and City of Pittsburgh, which failed for lack of standing, but which were properly dealt with in this litigation.

4 thoughts on “Erie Litigation Update

  1. Thanks for this update… we have a similar issue with New Castle County, DE parks and state preemption that needs to be addressed. My best wishes are with you on this endeavor.


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