MEMORANDUM OPINION BY JUDGE DUMAS FILED: November 2, 2022

The Pennsylvania State Police (the PSP) petitions for review of the order of the Administrative Law Judge (ALJ) of the Office of Attorney General (OAG), which overruled the PSP’s denial of an application to purchase a firearm filed by Naziyr Bell (Respondent).1 On appeal, we consider whether the ALJ erred in finding the PSP failed to meet its burden on the element of interstate commerce, which is implicitly required by Section 6105(c)(9) of the Pennsylvania Uniform Firearms Act of 1995 (UFA), 18 Pa. C.S. § 6105(c)(9).2 Our recent decision in Pennsylvania State Police v. Madden, __A.3d___ (Pa. Cmwlth., No. 918 C.D. 2020, filed October 21, 2022), is instructive here. As in Madden, we vacate and remand to the ALJ for further proceedings on the limited question of interstate commerce.

prohibited his firearm purchase.^[7] Specifically, the PSP cited Section 922(g)(9) of the FGCA and Section 6105(c)(9) of the UFA. The letter provided Respondent the opportunity to respond with additional information or evidence for the PSP’s review. Respondent did not respond. Thereafter, the PSP issued a final written notice, upholding the firearm denial for the above-stated reasons. Respondent appealed to the OAG. At the June 21, 2019 evidentiary hearing, the PSP introduced evidence documenting Respondent’s conviction and that he had used physical force and/or violence during its commission. See Certified Record (C.R.), Item No. 1, Hearing Transcript, Notes of Testimony (N.T.), 7/21/19, at 26-27. Although Respondent denied the details of the domestic incident, he acknowledged that he had pleaded guilty to disorderly conduct. See id. The ALJ questioned the PSP’s Counsel as to whether the PSP was required to present evidence on the nexus between the relevant firearm and interstate commerce. Id. at 26-27. The PSP’s Counsel declined that evidence was needed on this issue, stating, “[n]o, first off, the issue is not raised. Secondly, this case involves both the State and Federal firearm prohibition. So from the [PSP’s] perspective no, it’s not – it’s not necessary to – to raise that issue at all.” Id. The ALJ also inquired about the relationship between the federal and state gun prohibitions. Id. at 29-30. The PSP’s Counsel acknowledged “they are very – they are very parallel prohibitions” and although initially hesitant, the PSP’s Counsel ultimately agreed that the federal prohibition is a predicate offense to the state prohibition. Id.

On July 17, 2019, nearly one month after the ALJ’s evidentiary hearing, our Supreme Court issued its decision in Navarro II. The Navarro II Court held that the PSP must present proof that an involved firearm affected interstate or foreign commerce to lawfully deny a firearm application under Section 922(g) of the FGCA. On August 21, 2020, the ALJ reversed the PSP’s denial of Respondent’s firearm application.^[8] In particular, the ALJ criticized the PSP’s failure to submit any evidence showing that the relevant firearm was moved in or affected interstate commerce. See ALJ Op. & Order at 14-16. Accordingly, the ALJ concluded that the PSP’s denial of Respondent’s application was unlawful under both Section 922(g) of the FGCA and Section 6105(c) of the UFA. Id. at 16-17. The PSP timely petitioned this Court for further review.^[9], 10

II. ISSUES After thorough review, we find that the PSP mirrors the arguments previously raised in Madden. Effectively, the PSP argues that the ALJ erred in addressing the interstate commerce element sua sponte; the plain language of Section 6105(c) of the UFA does not require proof of interstate commerce; and in the alternative, it is entitled to a remand in light of Navarro II. PSP’s Br. at 11-15.

Although duplicative analysis on identical issues contravenes judicial economy, we will address the PSP’s arguments briefly to ensure a comprehensive review on appeal.

III. DISCUSSION Our discussion begins with a review of Madden, which is directly analogous to the present matter. In Madden, the applicant, like Respondent, was convicted of a misdemeanor crime of domestic violence. Madden, slip op. at 2. The applicant sought return of his firearm through a PICS firearm application, which the PSP denied under Section 922(g)(9) of the FGCA and Section 6105(c)(9) of the UFA. Id. at 2-3. Like here, after an evidentiary hearing, but before the ALJ’s order, our Supreme Court issued Navarro II. Id. at 3-4. The ALJ reversed the denial of the applicant’s firearm application, finding that the PSP did not present evidence of the interstate commerce element required for a lawful denial under Section 922(g)(9) of the FGCA. Id. On appeal, we vacated the ALJ’s order and remanded with instructions to hold an evidentiary hearing on the sole issue of interstate commerce following our Supreme Court’s decision in Navarro II. Id. at 9-10. Here, the PSP argues that the ALJ erred in raising the issue of interstate commerce sua sponte. We disagree. As we discussed in Madden, the Supreme Court’s decision in Navarro II applies retroactively, and, therefore, the ALJ was required to render a finding as to whether a nexus existed between the requested firearm and interstate commerce pursuant to Section 922(g)(9) of the FGCA. Id. at 6-7. The PSP also argues that the interstate commerce element does not apply to the denial of Respondent’s application based on a plain language reading of Section 6105(c) of the UFA.^[11] Again, we disagree. Section 6105(c)(9) of the UFA adopts the prohibitory language set forth in Section 922(g)(9) of the FGCA, which disallows anyone “who has been convicted in any court of a misdemeanor crime of domestic violence” from possessing a firearm that has been “in or affecting [interstate] commerce.” 18 U.S.C. § 922(g)(9) (emphasis added). Accordingly, bound by this plain language of both statutes, proof of the interstate commerce element is required to satisfy a firearm application denial under Section 6105(c)(9) of the UFA. Madden, slip op. at 7-8.12, 13 Finally, the PSP argues that, in the alternative, a remand is appropriate. Here, we agree. Because this matter was pending during the disposition of Navarro II, a remand is appropriate to provide both parties a chance to present evidence and argument on the issue of interstate commerce at a further evidentiary hearing. Precedent supports a decision to vacate and remand based on new Pennsylvania Supreme Court precedent which was pending at the time of the appeal. Id. at 9, Kline v. Travelers Pers. Sec. Ins. Co., 223 A.3d 667, 691 (Pa. Super. 2019).14

IV. CONCLUSION In accordance with the Supreme Court’s decision in Navarro II, and the decision of this Court in Madden, firearm application denials under either Section 6105(c) of the UFA or Section 922(g) of the FGCA require proof of interstate commerce. Although the ALJ properly reversed the PSP’s denial of Respondent’s firearm application for its failure to present such proof, the issuance of Navarro II during the pendency of this appeal requires that we remand to afford the parties the opportunity to present evidence and argument on the issue of interstate commerce. Therefore, after careful review, we vacate the ALJ’s order and remand for an evidentiary hearing on the issue of interstate commerce.

LORI A. DUMAS, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police, : Petitioner : : v. : No. 917 C.D. 2020 : Naziyr Bell (Office of : Attorney General), : Respondent :

ORDER

AND NOW, this 2nd day of November, 2022, in light of our Supreme Court’s decision in Navarro v. Pennsylvania State Police, 212 A.3d 26 (Pa. 2019), the order of the Administrative Law Judge (ALJ), Office of Attorney General, entered August 21, 2020, in the above-captioned matter, is VACATED, and the case is REMANDED to the ALJ for further proceedings consistent with the attached opinion. Jurisdiction relinquished.

LORI A. DUMAS, Judge