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IRVING GARDNER v. FRANK W. JENKINS (05/11/88)

decided: May 11, 1988.

IRVING GARDNER, APPELLANT
v.
FRANK W. JENKINS, SHERIFF OF MONTGOMERY COUNTY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Irving Gardner v. Frank Jenkins, Sheriff of Montgomery County, No. 84-12443.

COUNSEL

James R. Caiola, Caiola, Caiola & Gowen, with him, Richard E. Gardiner, Assistant General Counsel, National Rifle Association, for appellant.

Ross Weiss, Shor, Levin & Weiss, P.C., for appellee.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Craig. Judges MacPhail and Colins concur in the result only.

Author: Craig

[ 116 Pa. Commw. Page 108]

Irving Gardner appeals from an order of the Court of Common Pleas of Montgomery County which overruled his exceptions to the trial court's earlier order dismissing his complaint in mandamus.

Gardner applied to Frank Jenkins, Sheriff of Montgomery County, for a license to carry a concealed weapon, pursuant to section 6109 of the Pennsylvania Uniform Firearms Act, 18 Pa. C. S. ยง 6109. The sheriff

[ 116 Pa. Commw. Page 109]

    denied the application on the ground that Gardner was not a "suitable person" within the meaning of section 6109 of the Act. Gardner then filed his mandamus complaint in the trial court, to compel issuance of the license.

At a non-jury hearing on October 14, 1984, Gardner asserted that his state police record was inaccurate. The trial court remanded the case to the sheriff for further investigation of the record. After further investigation and reconsideration, the sheriff reaffirmed his denial of the application. After a second hearing, on December 17, 1984, the trial court dismissed the complaint in mandamus. Gardner filed exceptions which the trial court also dismissed. Gardner then filed this appeal.

Mandamus will issue to compel official performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in defendant, and a lack of any other adequate and appropriate remedy at law. Porter v. Bloomsburg State College, 450 Pa. 375, 301 A.2d 621 (1973). The action of mandamus in Pennsylvania is an extraordinary remedy, regulated by statute as to parties and procedure.

Section 6109(a) of the Firearms Act provides:

[T]he sheriff of a county may, upon the application of any person, issue a license to such person to carry a firearm . . . if it appears that the applicant has good reason to fear an injury to his person or property, or has any other proper reason for carrying a firearm, ...


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