the [N]on-[D]elegation [D]octrine does not mandate that “all details of administration must be precisely or separately enumerated in the statute”
How later courts described this case
- the [N]on-[D]elegation [D]octrine does not mandate that “all details of administration must be precisely or separately enumerated in the statute”
- wherein this Court concluded that the authority to conduct in camera document reviews could be reasonably derived from the statutory powers granted to the Office of Open Records
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nathaniel Fick, :
Petitioner :
:
v. :
:
Lieutenant Colonel George Bivens, :
Acting Commissioner, Pennsylvania :
State Police,1 : No. 51 M.D. 2022
Respondent : Argued: April 13, 2026
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STELLA M. TSAI, Judge
OPINION BY
JUDGE COVEY FILED: May 28, 2026
Before this Court is Nathaniel Fick’s (Fick) Application for Summary
and Special Relief Pursuant to Pennsylvania Rule of Appellate Procedure (Rule)
1532(b), Pa.R.A.P. 1532(b) (Application), wherein he asks this Court to declare: (1)
simple assault is not a crime of violence or a disqualifying criminal offense under
Section 21.1 of the Pennsylvania State Police’s (PSP) Regulations;2 (2) PSP
Commissioner Colonel Robert Evanchick’s (Commissioner/PSP) interpretation that
simple assault is a crime of violence or a disqualifying criminal offense
(Interpretation) is contrary to PSP’s Regulations and/or violates Section 202 of the
1
Colonel Robert Evanchick (Colonel Evanchick) was the Pennsylvania State Police’s
(PSP) Commissioner when Nathaniel Fick (Fick) initiated this litigation in February 2022. When
Fick filed the Application for Summary and Special Relief Pursuant to Pennsylvania Rule of
Appellate Procedure (Rule) 1532(b), Pa.R.A.P. 1532(b), in October 2025, Colonel Christopher
Paris (Colonel Paris) was PSP Commissioner. When Colonel Paris retired in January 2026,
Lieutenant Colonel George Bivens (Lt. Colonel Bivens) became PSP Acting Commissioner. Lt.
Colonel Bivens is substituted for Colonel Evanchick pursuant to Rule 502(c), Pa.R.A.P. 502(c).
2
37 Pa. Code § 21.1.
Commonwealth Documents Law (CDL);3 and (3) the Lethal Weapons Training Act
(Act 235),4 PSP’s Regulations, and PSP’s Interpretation violate the Pennsylvania
and United States (U.S.) Constitutions. Fick also seeks to have this Court
permanently enjoin PSP from applying and/or enforcing its Interpretation.
Background
The facts are not disputed. Fick has been employed as a security guard
since 2012, but was not required or permitted to carry a lethal weapon. See February
9, 2022 Declaration of Nathaniel Fick (Fick 2022 Declaration) ¶ 2. On or about May
2021, ESS Security Services (ESS) offered Fick a full-time security position that
required him to carry a firearm and, thus, necessitated that he obtain a certification
pursuant to Act 235. See Fick 2022 Decl. ¶ 3. Fick also interviewed for an executive
protection position that paid “extremely well,” and required Act 235 certification.
Fick 2022 Decl. ¶ 4. On June 28, 2021, Fick electronically submitted his Act 235
certification application to PSP. See Fick 2022 Decl. ¶ 5. As part of the application,
Fick had to verify - subject to criminal penalties and/or permanent disqualification -
that he was eligible for Act 235 certification and the information he supplied in his
application, including any arrests or criminal charges against him, was true and
correct. See Fick 2022 Decl. ¶ 6; see also Appl. Ex. A.
By January 14, 2022 letter, PSP denied Fick’s application “due to [his]
May 29, 2014 conviction for the following offense: Simple Assault[,]” which is a
second degree misdemeanor under Section 2701 of the Crimes Code.5 Fick 2022
3
Act of July 31, 1968, P.L. 769, as amended, 45 P.S. § 1202.
4
Act of October 10, 1974, P.L. 705, as amended, 22 P.S. §§ 41-50.1.
5
Section 2701 of the Crimes Code defines simple assault as follows:
2
Decl. ¶ 7; see also Appl. Ex. B. PSP also notified Fick that he could request an
administrative hearing regarding the denial. See id. By correspondence to PSP dated
January 24, 2022, Fick, pro se, requested a hearing. See Fick 2022 Decl. ¶ 8; see
also Appl. Ex. C. On January 28, 2022, the Firearms Industry Consulting Group
submitted an amended hearing request to PSP on Fick’s behalf, therein asserting the
specific legal grounds for Fick’s challenge and requesting that PSP reverse its
January 14, 2022 denial. See Fick 2022 Decl. ¶ 9; see also Appl. Ex. D. That same
day, PSP responded: “[T]his will have to be resolved through a hearing. PSP’s
position is that simple assault is a crime of violence and therefore the denial should
be upheld.” Fick 2022 Decl. ¶ 10; see also Appl. Ex. E.
On February 9, 2022, Fick filed a Petition for Review (PFR) in this
Court’s original jurisdiction, along with an Application for Special Relief in the
Form of an Emergency/Expedited Preliminary Injunction under Rule 1532
(Expedited PI Application). On February 28, 2022, Fick filed an Amended Petition
for Review (Amended PFR) and the Fick 2022 Declaration. On March 9, 2022, PSP
Except as provided under [S]ection 2702 [of the Crimes Code, 18
Pa.C.S. § 2702] (relating to aggravated assault), a person is guilty of
assault if he:
(1) attempts to cause or intentionally, knowingly[,] or recklessly
causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly
weapon;
(3) attempts by physical menace to put another in fear of imminent
serious bodily injury; or
(4) conceals or attempts to conceal a hypodermic needle on his
person and intentionally or knowingly penetrates a law enforcement
officer or an officer or an employee of a correctional institution,
county jail or prison, detention facility[,] or mental hospital during
the course of an arrest or any search of the person.
18 Pa.C.S. § 2701. Section 2301 of the Crimes Code defines bodily injury as “[i]mpairment of
physical condition or substantial pain.” 18 Pa.C.S. § 2301.
3
filed an answer to the Expedited PI Application, asserting that Fick had failed to
exhaust his administrative remedies; namely, PSP’s as yet unscheduled hearing,
which PSP represented it would schedule for May 2022. PSP’s answer further
reflected: “[T]here has not been any criminal referral regarding [Fick’s Act 235]
application and the answers placed thereon, nor will [PSP] be referring [Fick] for
criminal investigation to an outside agency, or initiating an internal criminal
investigation, and emergency injunctive relief is not necessary.” Expedited PI Appl.
¶ 33.
On March 14, 2022, PSP scheduled Fick’s hearing for May 3, 2022.
On April 7, 2022, Fick filed a request for a preliminary injunction hearing. On April
11, 2022, PSP filed an Application to Stay Proceedings Due to Exhaustion of
Administrative Remedies Doctrine (Stay Application), which Fick opposed that
same day. By April 18, 2022 Order, this Court scheduled argument on the Stay
Application for April 27, 2022, with a hearing on the Expedited PI Application
scheduled to follow immediately thereafter.6
At the April 27, 2022 argument on the Stay Application, PSP claimed
that it did not have an active policy of automatically equating simple assault to a
crime of violence, and admitted that its denials on that basis were only justifiable
under the any other crime language portion of the definition of disqualifying
criminal offense in Section 21.1(ii) of PSP’s Regulations. See PSP Br. at 15; see
also Fick v. Evanchick, Comm’r Pa. State Police (Pa. Cmwlth. No. 51 M.D. 2022,
filed May 3, 2022) (Fick I), slip op. at 13 n.7. PSP also informed the Fick I Court
that within the year leading up to argument, it issued up to 10 Act 235 denials and/or
revocations based on simple assault convictions. See Fick I, slip op. at 10.
6
By April 20, 2022 Order, this Court stayed this matter pending PSP’s May 3, 2022
hearing. That same day, Fick filed an Application for Reconsideration/Reargument of this Court’s
April 20, 2022 Order, which this Court granted on April 21, 2022, thereby reinstating the April 18,
2022 Order scheduling the April 27, 2022 hearing.
4
On May 3, 2022, this Court denied PSP’s Stay Application, and granted
the Expedited PI Application in part, enjoining PSP from: (1) applying the definition
of crime of violence in Section 21.1 of PSP’s Regulations to include simple assault
or an attempt, solicitation, or conspiracy with respect to simple assault; (2) applying
the definition of disqualifying criminal offense in Section 21.2(ii) of PSP’s
Regulations to include a conviction for simple assault or an attempt, solicitation, or
conspiracy with respect to simple assault; and (3) applying the terms crime of
violence and disqualifying criminal offense under any part of Title 37, Chapter 21 of
PSP’s Regulations.7 On August 16, 2022, PSP filed an Answer and New Matter to
the Amended PFR.8 PSP represented in the New Matter that Fick had obtained his
Act 235 certification on June 27, 2022.
On October 21, 2025,9 Fick filed the Application, together with an
October 16, 2025 Declaration of Nathaniel Fick (Fick 2025 Declaration). In the
Application, Fick seeks summary and special relief in the form of declarative and
permanent injunctive relief precluding PSP from: (1) implementing or enforcing any
practice, policy, regulation, rule, or interpretation construing simple assault as a
crime of violence or disqualifying criminal offense in direct contradiction of Section
21.1 of PSP’s Regulations; and (2) implementing or enforcing Act 235 and any
7
The Fick I Court also made the injunction effective upon Fick’s filing of security in the
amount of $50.00, which Fick lodged on May 9, 2022. At oral argument before this Court, PSP’s
counsel agreed with Fick’s counsel that this Court should return Fick’s security.
8
On March 30, 2022, PSP filed preliminary objections to the Amended PFR. Fick filed an
answer to the preliminary objections on April 1, 2022. By May 10, 2022 Order, this Court directed
the parties to file briefs. On June 9, 2022, PSP filed a praecipe to withdraw the preliminary
objections. On June 16, 2022, this Court granted the withdrawal and ordered PSP to file an answer
to the Amended PFR. Because PSP’s Answer and New Matter did not contain a notice to plead,
Fick was not required to respond to the New Matter. See Pennsylvania Rule of Civil Procedure
1026(a), Pa.R.Civ.P. 1026(a). Therefore, the pleadings were closed upon PSP’s filing of the
Answer and New Matter.
9
Because no docket activity occurred in the meantime, on September 25, 2025, this Court
issued a Rule to Show Cause why the action should not be terminated for want of prosecution.
5
practice, policy, regulation, rule, or interpretation related thereto. See Appl. at 18-
21 (Ad Damnum Clause).
PSP filed its answer opposing the Application on November 4, 2025
(Answer). PSP’s opposing brief, filed on December 17, 2025, included an unsworn
declaration by Christopher Clark (Clark), Director of Administration and
Certification at PSP’s Municipal Police Officers’ Education and Training
Commission. In the Answer, consistent with PSP’s representations in its answer to
the Expedited PI Application, Clark attested that Fick had applied and successfully
obtained his Act 235 certification, that his renewal was due June 26, 2027, and that
“Fick will be granted renewal and will not be denied any future renewal because of
the simple assault conviction under the current law and regulatory scheme.” Clark
Decl. ¶ 16; see also PSP Br. at 13 (“[PSP] has retracted the position that [Fick] is
not eligible for certification on the basis of his May 29, 2014 conviction for simple
assault.”). Correspondingly, PSP asserted in its Answer that since PSP will not deny
Fick’s renewals based on his simple assault conviction, there is no longer an actual
controversy and, thus, this action is now moot.
On November 17, 2025, this Court directed the parties to file their
respective briefs, which they did. The parties presented oral argument to this Court
on April 13, 2026. The Application is now ripe for disposition.
Discussion
1. Mootness
Preliminarily, this Court has explained:
“A case is ‘moot’ when a determination is sought on a
matter which, when rendered, cannot have any practical
effect on the existing controversy.” Commonwealth v.
Nava, 966 A.2d 630, 632-33 (Pa. Super. 2009). Stated
differently, “[a]n issue before a court is moot if in ruling
6
upon the issue the court cannot enter an order that has any
legal force or effect.” Id. at 633. Cases presenting
mootness problems are those that involve litigants who
clearly had standing to sue at the outset of the litigation.
“The problems arise from events occurring after the
lawsuit has gotten underway - changes in the facts or in
the law - which allegedly deprive the litigant of the
necessary stake in the outcome. The mootness doctrine
requires that ‘an actual controversy must be extant at all
stages of review, not merely at the time the complaint is
filed.’” In re Gross, . . . 382 A.2d 116 ([Pa.] 1978)
(quoting G. Gunther, Constitutional Law 1578 (9th Ed.
1975)).
This Court will not decide moot questions.
Chruby v. Dep’t of Corr., 4 A.3d 764, 770-71 (Pa. Cmwlth. 2010). However,
“[e]xceptions to th[e mootness] principle are made where (1) the conduct
complained of is capable of repetition yet likely to evade review, (2) the case
involves issues important to the public interest, or (3) a party will suffer some
detriment without the court’s decision.” Id. at 771.
In the Fick 2025 Declaration, Fick confirmed that the Fick I preliminary
injunction afforded him the opportunity to obtain his Act 235 certification on June
27, 2022, that it expires on June 26, 2027, and that, without it, he would no longer
be eligible for his current security job. See Fick 2025 Decl. ¶¶ 13-16. Fick adds:
[A]lthough [Fick I] afforded [] Fick the ability to obtain
his Act 235 certification, he fears that if this Court does
not enter final declaratory and permanent injunctive relief,
nothing would prevent the enforcement of PSP’s
[Interpretation] against him in the future, including, inter
alia, the revocation of his current Act 235 certification or
denial of his renewal application, as well as[][] PSP
contending that he has a “permanent disqualification”
from being Act 235 certified and the possibility of his
arrest and prosecution based on [] PSP’s positions.
Fick Br. at 3.
7
PSP responds that “a renewal will not be denied on the basis of [Fick’s]
simple assault conviction.” PSP Ans. to Appl. ¶¶ 36-51; see also Clark Decl. ¶ 16.
However, PSP did not expressly retract its Interpretation as to all Act 235
certification applicants. Moreover, in his PFR and Amended PFR, Fick seeks: (1) a
declaration “under the Declaratory Judgments Act [(DJA)],[10] 42 Pa.C.S. §§ 7531-
7541, on behalf of himself and those similarly situated”11 that PSP improperly
interprets that simple assault is a crime of violence or a disqualifying criminal
10
This Court has explained:
The DJA’s purpose is “to settle and to afford relief from uncertainty
and insecurity with respect to rights, status, and other legal
relations” and, accordingly, must “be liberally construed and
administered.” [Section 7541(a) of the DJA,] 42 Pa.C.S. § 7541(a).
To that end, Section 7533 of the DJA specifies: “Any person . . .
whose rights, status, or other legal relations are affected by a statute
. . . may have determined any question of construction or validity
arising under the . . . statute . . . and obtain a declaration of rights,
status, or other legal relations thereunder.” 42 Pa.C.S. § 7533. Thus,
Section 7532 of the DJA affords courts the “power to declare rights,
status, and other legal relations whether or not further relief is or
could be claimed[ ] . . . , and such declarations shall have the force
and effect of a final judgment or decree.” 42 Pa.C.S. § 7532.
Moreover, the Pennsylvania Supreme Court has ruled that “a facial
challenge to the validity of a statutory provision and pure question
of law . . . is [ ] generally appropriate for pre-enforcement review in
a declaratory judgment action.” Robinson Twp., Wash. Cnty. v.
Commonwealth, . . . 83 A.3d 901, 990 ([Pa.] 2013); see also Bayada
Nurses, Inc. v. Dep’t of Lab. & Indus., . . . 8 A.3d 866 ([Pa.] 2010).
Pa. Builders Ass’n v. Dep’t of Lab. & Indus., 284 A.3d 1287, 1297 (Pa. Cmwlth. 2022). “When . . .
challenges - particularly constitutional challenges - are set forth questioning the validity of a statute
itself or questioning the scope of a governmental body’s action pursuant to statutory authority,
then the [DJA] is properly invoked[.]” Blackwell v. State Ethics Comm’n, 556 A.2d 988, 991 (Pa.
Cmwlth. 1989) (emphasis omitted); see also P.J.S. v. Pa. State Ethics Comm’n, 669 A.2d 1105
(Pa. Cmwlth. 1996).
11
Notably, PSP does not claim Fick lacked standing to seek a declaratory judgment on
behalf of others similarly situated. “[I]t is well settled that a court may not raise a party’s standing
sua sponte.” In re Gun Range, LLC, 311 A.3d 1242, 1247 (Pa. Cmwlth. 2024), appeal denied,
326 A.3d 87 (Pa. 2024), cert. denied sub nom. Gun Range, LLC v. City of Phila., Pa., 145 S.Ct.
1174 (2025).
8
offense; and (2) a permanent injunction that precludes PSP from implementing and
enforcing its position that it may deny Act 235 certification based on simple assault
convictions.12 PFR ¶ 2 (emphasis added); see also Amended PFR ¶ 2; Appl. at 18-
21 (Ad Damnum Clause); PFR Ad Damnum Clause; Amended PFR Ad Damnum
Clause.
On May 3, 2022, the Fick I Court preliminarily enjoined PSP from
applying the definitions of crime of violence and disqualifying criminal offense in
Section 21.2 of PSP’s Regulations to include simple assault. Up to that point, PSP
had applied and enforced its interpretation against Fick and others. Further, Clark’s
December 17, 2025 representation that PSP would not revoke Fick’s current Act 235
certification or deny his future renewals based on the Interpretation does not
12
Specifically, Fick asks that this Court issue an order: (1) declaring PSP’s Interpretation
that simple assault is contrary to PSP’s definition of crime of violence, and enjoining PSP from
implementing or enforcing that Interpretation; (2) declaring PSP’s Interpretation that simple
assault is a crime of violence violates the CDL, and enjoining PSP from implementing or enforcing
that Interpretation; (3) declaring that PSP lacks the authority to promulgate Regulations defining
crime of violence and disqualifying criminal offense, and enjoining PSP implementing or enforcing
them; (4) declaring that PSP lacks authority to promulgate Regulations regarding denials and
revocation or the process to challenge them; (5) declaring that PSP’s Interpretation violates article
II, section 1 of the Pennsylvania Constitution, PA. CONST. art. II, § 1, and enjoining PSP from
implementing or enforcing it; (6) declaring Act 235 unconstitutional pursuant to the vagueness
doctrine and rule of lenity, and enjoining PSP from implementing it; (7) declaring Act 235
unconstitutional pursuant to substantive due process, and enjoining PSP from implementing or
enforcing it; (8) declaring Act 235 unconstitutional pursuant to procedural due process and
enjoining PSP from implementing or enforcing it; (9) declaring PSP’s Regulations
unconstitutional pursuant to the vagueness doctrine and rule of lenity, and enjoining PSP from
implementing or enforcing them; (10) declaring PSP’s Regulations unconstitutional pursuant to
substantive due process, and enjoining PSP from implementing or enforcing them; and (11)
declaring PSP’s Regulations unconstitutional pursuant to procedural due process, and enjoining
PSP from implementing or enforcing them. See Appl. at 18-21 (Ad Damnum Clause); see also
PFR Ad Damnum Clause; Amended PFR Ad Damnum Clause. Fick also seeks the return of his
$50.00 bond and the opportunity to file a request for attorney’s fees and costs within 60 days after
this Court enters final judgment. See Appl. at 21 (Ad Damnum Clause).
9
foreclose the possibility that PSP could deny Fick or another applicant’s Act 235
certification on that basis.13
Because, based on its Interpretation, PSP could still deny Act 235
certifications to Fick or others with simple assault convictions, and PSP could
acquiesce to those others if/when they initiate legal action against it, as it did for
Fick, the underlying issue is “capable of repetition yet likely to evade review.”
Chruby, 4 A.3d at 771. Accordingly, this litigation is not moot.
2. Summary Relief
The standard for granting summary relief turns upon
whether the applicant’s right to relief is clear. Summary
relief on a petition for review is similar to the relief
provided by a grant of summary judgment. [See Rule]
1532, Official Note. Summary judgment is appropriate
where, after the close of pleadings, “there is no genuine
issue of any material fact as to a necessary element of the
cause of action or defense which could be established by
additional discovery or expert report.” [Pennsylvania
Rule of Civil Procedure,] Pa.R.C[iv].P. 1035.2(a). The
record is to be viewed in the light most favorable to the
nonmoving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party.[14]
Scarnati v. Wolf, 173 A.3d 1110, 1118 (Pa. 2017) (footnote omitted).
Regarding Act 235, the Fick I Court comprehensively explained:
Section 4 of [Act 235] establishes a lethal weapons
training program administered by the Commissioner.
[See] 22 P.S. § 44. Section 5 of [Act 235] empowers the
13
See also PSP Br. at 15 (“There is no risk to [Fick’s] ongoing certification based upon his
past simple assault charge.” (Emphasis added)).
14
Because the parties agree that there are no genuine issues of material fact, this Court
need only determine whether Fick’s right to relief is clear under Act 235 and PSP’s associated
Regulations. See Appl. ¶ 40 (“The issues before this Court are solely legal in nature . . . .”); see
also PSP Br. at 12 (“[T]here is no genuine dispute of material fact[.]”).
10
Commissioner to certify training schools and instructors
for the program, and also “to make such rules and
regulations and to perform such other duties as may be
reasonably necessary or appropriate to implement the
education and training program.” 22 P.S. § 45. Any
“privately employed agent” must obtain Act 235
certification before carrying a lethal weapon on duty or
while traveling to or from work. Section 8(a) of [Act 235],
22 P.S. § 48(a). Doing so without a certification is a
misdemeanor punishable by up to one year of
imprisonment, a $1,000[.00] fine, or both. [See] Section
9(a) of [Act 235], 22 P.S. § 49(a).
There are two steps to applying for Act 235 certification.
In the first step, under Section 6 of Act 235, an applicant
must apply for and receive a “certificate of qualification”
[(qualification certification)] before he may enroll in a
training program. 22 P.S. § 46. Section 6 [of Act 235]
states, in relevant part:
(a) Any person desiring to enroll in such program
shall make application to [PSP], on a form to be
prescribed by [PSP].
....
(d) The fingerprints of the applicant shall be
examined by [PSP] and the Federal Bureau of
Investigation to determine if he has been
convicted of or has pleaded guilty or nolo
contendere to a crime of violence . . . .
....
(f) After the application has been processed and if
the [C]ommissioner determines that the
applicant is [18] years of age and has not been
convicted of or has not pleaded guilty or nolo
contendere to a crime of violence, and has
satisfied any other requirements prescribed by him
under his powers and duties pursuant to [S]ection
5 [of Act 235], [he] shall issue a certificate of
qualification which shall entitle the applicant to
enroll in an approved program.
11
22 P.S. § 46 (emphasis added[;] footnote omitted). Act
235 does not define “crime of violence” or any related
terms.
Once an applicant receives a certification of qualification
under Section 6 [of Act 235], and enrolls in and completes
an approved training program, the applicant receives a
“certificate” allowing him to carry a lethal weapon
incident to employment. Sections 4(b) and 7(b) of [Act
235], 22 P.S. §§ 44(b), 47(b). Those who obtain a
certificate must carry a copy with them on the job and must
renew the certificate every five years. [See] Section 79(c),
(d) of [Act 235], 22 P.S. § 47(c), (d).
Fick I, slip op. at 3-4.
The Fick I Court expounded:
After Act 235 was enacted on October 10, 1974, but before
its effective date of December 31, 1975, PSP promulgated
[R]egulations for Act 235. See Pa. Code §§ 21.1-21.61.[15]
The [R]egulations define the following relevant terms:
....
Crime of violence--Any of the following crimes,
or an attempt, solicitation or conspiracy to commit
any of the same in this Commonwealth or
elsewhere, namely: murder, rape, aggravated
assault, robbery, burglary, entering a building with
intent to commit a crime therein, kidnapping,
voluntary manslaughter, involuntary deviate
sexual intercourse, arson, recklessly endangering
another person[16] or terroristic threats.
15
The Regulations were published in the Pennsylvania Bulletin on September 12, 1975, 5
Pa.B. 2362, and an amendment was published November 2, 1984, 14 Pa.B. 3926. See 37 Pa. Code
Ch. 21, “Source.”
16
Section 2705 of the Crimes Code states regarding recklessly endangering another person
occurs when “[a] person . . . recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. Section 2301 defines
serious bodily injury as “[b]odily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S. § 2301. These definitions distinguish the crime of recklessly
12
Disqualifying criminal offense--
(i) A conviction for a crime of violence shall
be a disqualifying criminal offense; or
(ii) A conviction for any other crime may be
a disqualifying criminal offense. Note:
[c]onviction of a criminal offense which is
equivalent to subparagraphs (i) and (ii) may
constitute a disqualifying criminal offense.
37 Pa. Code § 21.1.
Relevant to this case, [Section] 21.11 [of PSP’s
Regulations, 37 Pa. Code § 21.11,] establishes the
requirements for applicants who wish to become certified
agents. It provides, in relevant part:
....
A person who desires to be certified by the
Commissioner under [Act 235] must satisfy the
following requirements:
....
(5) Criminal conviction standard. A review must
be made of the applicant’s criminal history record,
if any, to determine qualification for certification.
The criminal history review shall be based upon
the record of conviction, if any, generated by the
classification and subsequent examination of the
applicant’s fingerprints or another valid method.
A person whose criminal history record
evidences a conviction for a disqualifying
criminal offense may be barred from
certification under [Act 235].
(Emphasis added). . . .
The [R]egulations also provide [a] procedure for
challenging an adverse determination by the
Commissioner. See [Sections 21.51-21.61 of PSP’s
endangering another person used in this Regulation from the reference to recklessly causes bodily
injury in the statute that defines simple assault. See 18 Pa.C.S. § 2701(1).
13
Regulations,] 37 Pa. Code §§ 21.51-21.61. Any applicant
who receives an adverse determination may request an
administrative hearing before a hearing examiner
appointed by the Commissioner. [See Sections 21.53-
21.54 of [] PSP’s Regulations,] 37 Pa. Code §§ 21.53-
[21].54. The hearing examiner makes a recommendation
to the Commissioner, who then makes a final decision.
[See] 37 Pa. Code § 21.61.
Slip op. at 5-6 (original bold emphasis omitted; bold and italic emphasis added;
footnotes omitted).
Fick argues that his right to relief is clear because PSP’s Interpretation
violates article II, section 1 of the Pennsylvania Constitution’s Non-Delegation
Doctrine17 and the CDL and is contrary to PSP’s Regulations, and also violates the
due process guarantees in article I, section 1 of the Pennsylvania Constitution18 and
the Fourteenth Amendment to the U.S. Constitution (Fourteenth Amendment).19
a. Article II, Section 1 of the Pennsylvania Constitution (Non-Delegation
Doctrine)
Fick argues that he has a clear right to relief because PSP’s
Interpretation violates article II, section 1 of the Pennsylvania Constitution’s non-
delegation doctrine. Specifically, Fick contends that the General Assembly did not
authorize the Commissioner to promulgate regulations that define crime of violence,
or to add disqualifying criminal offenses or regulate certification denials or
revocations and related hearings and appeals. PSP responds that the General
Assembly properly delegated to PSP (a criminal justice agency) the authority to
determine the types of crimes the convictions for which would disqualify an
applicant from Act 235 certification qualification, and to regulate certification
denials or revocations and challenges thereto.
17
PA. CONST. art. II, § 1.
18
PA. CONST. art. I, § 1.
19
U.S. CONST. amend. XIV.
14
Preliminarily, “the General Assembly may exercise its far-reaching
police power in the public interest in a manner that affects constitutional rights,
though any such exercise is itself subject to constitutional limitations and judicial
review.” Crawford v. Commonwealth, 326 A.3d 850, 857 (Pa. 2024). Moreover,
“[o]ur law provides a strong presumption that legislative
enactments . . . do not violate the [Pennsylvania]
Constitution.” Ass’n of Settlement Cos. v. Dep’t of
Banking, 977 A.2d 1257, 1261 (Pa. Cmwlth. 2009) (en
banc). The burden to overcome the presumption is heavy:
“[A] statute will not be declared unconstitutional unless it
clearly, palpably, and plainly violates the [Pennsylvania]
Constitution. All doubts are to be resolved in favor of
finding that the legislative enactment passes constitutional
muster.” Pennsylvanians Against Gambling Expansion
Fund, Inc. v. Commonwealth, . . . 877 A.2d 383, 393 ([Pa.]
2005) (emphasis in original) (citation omitted).
Caba v. Weaknecht, 64 A.3d 39, 49 (Pa. Cmwlth. 2013).
Relevant here, article II, section 1 of the Pennsylvania Constitution,
commonly referred to as the Non-Delegation Doctrine, provides: “The legislative
power of this Commonwealth shall be vested in a General Assembly, which shall
consist of a Senate and a House of Representatives.” PA. CONST. art. II, § 1. This
Court has explained:
It is beyond cavil that article II, section 1 of the
Pennsylvania Constitution both vests the General
Assembly with exclusive authority to make law and bars
it from delegating th[e] authority [to make law] to
other entities. State Bd. of Chiropractic Exam’rs v. Life
Fellowship of Pa., . . . 272 A.2d 478, 480 ([Pa.] 1971).
Even so, the General Assembly “may, where necessary,
confer authority and discretion in connection with the
execution of the law; it may establish primary standards
and impose upon others the duty to carry out the declared
legislative policy in accordance with the general
provisions of the act.” Belovsky v. Redevelopment Auth.
of City of Phila., . . . 54 A.2d 277, 284 ([Pa.] 1947). “The
principal limitations on this power are twofold: (1) the
15
basic policy choices must be made by the [l]egislature;
and (2) the legislation must contain adequate standards
which will guide and restrain the exercise of the
delegated administrative functions.” Gilligan v. Pa.
Horse Racing Comm’n, . . . 422 A.2d 487, 489 ([Pa.] 1980)
(cleaned up); accord Protz v. Workers’ Comp. Appeal Bd.
(Derry Area Sch. Dist.), . . . 161 A.3d 827, 834 ([Pa.]
2017) (cleaned up) (such legislation must “contain some
intelligible principle to which the person or body
authorized to act is directed to conform”). This “rule
requiring express legislative delegation is tempered by
the recognition that [a governmental body] is invested
with the implied authority necessary to the effectuation
of its express mandates.” Com[monwealth] v. Beam, . . .
788 A.2d 357, 360 ([Pa.] 2002); accord Gilligan, 422 A.2d
at 489 (the [N]on-[D]elegation [D]octrine does not
mandate that “all details of administration must be
precisely or separately enumerated in the statute”); see
also Beam, 788 A.2d at 361 (quoting City of Columbia v.
B[d.] of Health & Env’t Control, . . . 355 S.E.2d 536, 538
([S.C.] 1987)) (“The delegation of authority to an
administrative agency is construed liberally when the
agency is concerned with the protection of the health and
welfare of the public.”).
Grant Schmidt, Shot Tec, LLC v. Paris, 344 A.3d 78, 89-90 (Pa. Cmwlth. 2025)
(emphasis added). “While an agency’s powers must be conferred by the legislature,
they may be conferred not only by express statutory authorization, but also by
necessary implication.” Our Lady of Victory Cath. Church v. Dep’t of Hum. Servs.,
153 A.3d 1124, 1129 (Pa. Cmwlth. 2016).
“To determine whether a regulation is adopted within an
agency’s granted power, [this Court] look[s] for statutory
language authorizing the agency to promulgate the
legislative rule and examine that language to determine
whether the rule falls within the grant of authority.”
Marcellus Shale Coal[.] v. Dep[’t] of Env[’t] Prot[.], 216
A.3d 448, 459 (Pa. Cmwlth. [2019]) . . . (citing Slippery
Rock [Area Sch. Dist. v. Unemployment Comp. Bd. of
Rev.], 983 A.2d [1231,] 1239-41 [(Pa. 2009)]). [This
Court] consider[s] “the purpose of the statute and its
reasonable effect” and whether “the regulation is
16
consistent with the enabling statute.” Id. “Clearly[,] the
legislature would not authorize agencies to adopt binding
regulations inconsistent with the applicable enabling
statutes.” Slippery Rock, 983 A.2d at 1241.
Hommrich v. Pa. Pub. Utils. Comm’n, 231 A.3d 1027, 1034 (Pa. Cmwlth. 2020),
aff’d sub nom., Hommrich v. Commonwealth, 245 A.3d 637 (Pa. 2021).
In the instant matter, the General Assembly declared that Act 235’s
purpose is “to provide for the education, training[,] and certification of [] privately
employed agents who, as an incidence to their employment, carry lethal weapons
through a program administered or approved by the Commissioner of [PSP].”
Section 2(b) of Act 235, 22 P.S. § 42(b) (emphasis added); see also 22 P.S. § 43
(program defined). Section 6 of Act 235 broadly specifies that certification
qualification applications must be made to PSP on forms PSP prescribes and
accompanied by documents PSP requires, and
if the Commissioner determines that the applicant is [18]
years of age and has not been convicted of . . . a crime
of violence, and has satisfied any other requirement
prescribed by [the Commissioner] under his powers
and duties pursuant to [S]ection 5 of Act 235, he shall
issue a certificate of qualification which shall entitle the
applicant to enroll in an approved program.
22 P.S. § 46(f) (bold and underline emphasis added). Likewise, Section 4(b) of Act
235 specifies that “upon satisfactory completion of such program, [the applicant]
shall be entitled to certification by the [C]ommissioner.” 22 P.S. § 44(b).
Although in Section 5 of Act 235, the General Assembly appears to
limit the Commissioner’s powers and duties to implementing and administering Act
235 education and training courses, see 22 P.S. § 45,20 where Act 235’s clear
20
In Section 5(10) of Act 235, the General Assembly authorized PSP to, inter alia, “make
such rules and regulations and to perform such other duties as may be reasonably necessary or
appropriate to implement the education and training program.” 22 P.S. § 45(10) (emphasis
added).
17
purpose is not only education and training, but also certification by the PSP
Commissioner, see 22 P.S. § 42(b), and the General Assembly clearly created an
extensive statutory framework wherein it made PSP responsible for implementing,
overseeing, and enforcing the Act 235 certification, renewal, and revocation
processes, see Sections 7, 8(c) of Act 235, 22 P.S. §§ 47, 48(c), PSP’s authority to
promulgate regulations addressing the handling of adverse determinations related
thereto is necessarily implied. See Beam (wherein the Pennsylvania Supreme Court
held that the enabling statute was sufficiently broad to confer upon the Department
of Transportation the implied capacity to seek redress not expressly addressed
therein); see also Off. of Open Recs. v. Centre Twp., 95 A.3d 354 (Pa. Cmwlth. 2014)
(wherein this Court concluded that the authority to conduct in camera document
reviews could be reasonably derived from the statutory powers granted to the Office
of Open Records).
In addition, Section 102(a) of the Administrative Agency Law
authorizes agencies to promulgate regulations implementing the provisions thereof,
which includes establishing hearing and appeal procedures for administrative
adjudications. See 2 Pa.C.S. § 102(a); see also Sections 501-508, 701-704 of the
Administrative Agency Law, 2 Pa.C.S. §§ 501-508, 701-704. In fact, with the
exception of proceedings not relevant here, see 2 Pa.C.S. § 501(a), Section 701(a)
of the Administrative Agency Law allows appeals from agency decisions even if a
statute declares that no review or appeal is permitted. See 2 Pa.C.S. § 701(a).
Accordingly, this Court concludes that the General Assembly made the necessary
policy choices and PSP was subject to adequate standards to guide and restrain the
exercise of its delegated administrative functions in addressing certification denials
or revocations and hearings and appeals related thereto, and PSP did not exceed that
authority here.
18
However, the General Assembly did not expressly or by implication
authorize PSP to modify its statutorily-supplied qualification certification criteria.
The General Assembly clearly made the policy determination that the Commissioner
shall grant qualification certification to any person who is 18 or older, who has not
been convicted of a crime of violence. See 22 P.S. § 46(f). PSP defined crime of
violence in its Regulations, which it was authorized to do.21 In addition, in Section
11(5) of PSP’s Regulations, PSP expanded the crimes that may bar Act 235
qualification certification beyond crime of violence to “a disqualifying criminal
offense . . . .” 37 Pa. Code § 21.11(5) (emphasis added). PSP defines disqualifying
criminal offense to include a conviction for a crime of violence, see 37 Pa. Code §
21.1(i), “or . . . any other crime . . . .” 37 Pa. Code § 21.1(ii) (bold, underline, and
italic emphasis added). Thus, PSP created a catch-all under which it could add
crimes the convictions for which it could deny Act 235 qualification certification
beyond crimes of violence to any other crime, which, in Fick’s case, PSP interpreted
to include simple assault.22 See 37 Pa. Code § 21.1.
In concluding that Fick may prevail on the merits relative to the
Expedited PI Application, the Fick I Court recognized:
21
Agencies may define undefined statutory terms, provided they are not inconsistent with
their enabling statutes. See Hommrich; see also Marcellus Shale Coal. Here, while the General
Assembly did not expressly authorize the Commissioner to define crime of violence, PSP properly
promulgated Section 21.1 of PSP’s Regulations, see Marcellus Shale Coal., to include “rape,
aggravated assault, robbery, burglary, entering a building with intent to commit a crime therein,
kidnapping, voluntary manslaughter, involuntary deviate sexual intercourse, arson, recklessly
endangering another person or terroristic threats[,]” and the attempt, solicitation, or conspiracy to
commit any of those crimes. 37 Pa. Code § 21.1. That definition is relatively consistent with how
the General Assembly defined crime of violence in Section 9714(g) of the Sentencing Code. See
42 Pa.C.S. § 9714(g). Notably, however, neither definition references nor incorporates simple
assault. See Fick I, slip op. at 13 n.7 (“PSP’s promulgated definition of [crime of violence] []
obviously does not include simple assault.”).
22
In Fick I, PSP appeared to have abandoned its initial position that simple assault is a
crime of violence. At oral argument before this Court, PSP reiterated its position that it does not
consider simple assault a crime of violence.
19
Whatever the General Assembly meant by “crime of
violence,” it cannot plausibly have meant “any . . . crime.”
That reading would fail to give effect to the words - “of
violence” - the General Assembly actually used. “A
[c]ourt’s duty is to give effect to the legislature’s intent
and to give effect to all of a statute’s provisions.” Crown
Castle [NG E. LLC v. Pa. Pub. Util. Comm’n,] 234 A.3d
[665,] 674 [(Pa. 2020)]. Thus, [Fick] is likely to prevail
on his claim that this broad regulatory definition is
unlawful, because it appears plainly inconsistent with the
unambiguous intent of the General Assembly: that not
merely a “crime,” but a “crime of violence,” is
disqualifying for Act 235.
Slip op. at 14-15. This Court agrees that the General Assembly specifically limited
its criminal conviction standard to crimes of violence and, thus, did not intend for
the Commissioner to deny qualification certification based on a conviction for any
other crime.
Indeed, “a regulation that is at variance with a statute is
ineffective to change the statute’s meaning.” Geisinger
Health Sys[.] v. Bureau of Workers’ Comp[.] Fee Rev[.]
Hearing Off[.] (SWIF), 138 A.3d 133, 139 (Pa. Cmwlth.
2016). “That is so because ‘the power of an administrative
agency to prescribe rules and regulations under a statute is
not the power to make law, but only the power to adopt
regulations to carry into effect the will of the Legislature
as expressed by the statute.’” Id. (quoting Volunteer
Firemen’s Relief Ass[’n] of the City of Reading v.
Minehart, . . . 227 A.2d 632, 635-36 ([Pa.] 1967)). “When
an agency adopts regulations at variance with the statute,
the regulations, and not the statute, fall by the wayside.”
Id. (citing Union Elec[.] Corp[.] v. B[d.] of Prop[.]
Assessment, Appeals [&] Rev[.] of Allegheny C[nty.], 721
A.2d 823 (Pa. Cmwlth. 1998), rev’d on other grounds, . . .
746 A.2d 581 ([Pa.] 2000)).
Hommrich, 231 A.3d at 1035.
Even liberally construing Act 235, as this Court must because PSP “is
concerned with the protection of the health and welfare of the public[,]” Grant
Schmidt, Shot Tec, LLC, 344 A.3d at 90 (quoting City of Columbia, 355 S.E.2d at
20
538), this Court concludes that only a crime of violence, as PSP defined that term in
Section 21.1 of its Regulations, can be a disqualifying criminal offense.23 PSP’s
denials for any other crime (and, thus, simple assault) exceeds the bounds of the
General Assembly’s policy determination and places the Regulation at odds with
Act 235. As such, the implication that PSP may deny qualification certification for
anything other than a crime of violence (i.e., its Interpretation and the “or . . . any
other crime” portion of PSP’s Regulations, 37 Pa. Code § 21.1(ii) (emphasis added))
must “fall by the wayside.” Hommrich, 231 A.3d at 1035 (quoting Geisinger, 138
A.3d at 139).24, 25
Therefore, this Court concludes that the General Assembly made the
necessary policy choices and specified standards to guide and restrain PSP in
exercising its delegated administrative functions; however, PSP exceeded that
authority in this instance. Fick has stated a clear right to declarations from this Court
23
Consistent with this Court’s interpretation, at oral argument before this Court, PSP’s
counsel represented that the Regulation’s reference to disqualifying criminal offense refers back
only to crime of violence, as PSP defined that term in Section 21.1 of its Regulations.
24
In light of this Court’s conclusion that the General Assembly did not intend for PSP to
promulgate Regulations to disqualify Act 235 applicants for anything other than crimes of violence
(as PSP defined them), this Court need not further address whether the disqualifying criminal
offense portion of PSP’s Interpretation is contrary to its own Act 235 Regulations or whether PSP
properly promulgated that portion of the Interpretation under the CDL.
25
In addition to the above, this Court observes that PSP included a notation in its
disqualifying criminal offense definition that only any other crime “which is equivalent to
subparagraphs (i) [(relating to a crime of violence)] and (ii) [(relating to any other crime)] may
constitute a disqualifying criminal offense.” 37 Pa. Code § 21.1(ii). Adopting the Fick I Court’s
reasoning that the General Assembly did not intend for the term crime of violence to include any
other crime, together with PSP’s definition limiting any other crime to a crime of violence, this
Court concludes that the only criminal offense that disqualifies an applicant from Act 235
certification is a crime of violence, as the General Assembly clearly stated. Although a strict
reading of PSP’s definition nonsensically makes any other crime equivalent to any other crime a
disqualifying criminal offense, in light of this Court’s conclusion that only a crime of violence is
a disqualifying criminal offense, PSP’s definition of disqualifying criminal offense in Section 21.1
of the Regulations is mere surplusage. Accordingly, PSP’s Interpretation that simple assault can
be a disqualifying criminal offense is contrary to its own Regulations.
21
that: (1) PSP properly promulgated Regulations addressing qualification
certification denials or revocations and hearings and appeals related thereto; (2) a
crime of violence - as PSP defined the term - is the sole conviction basis on which
PSP may deny an Act 235 qualification certification (i.e., the only disqualifying
criminal offense under Section 21.1 of PSP’s Regulations is a crime of violence);
and (3) simple assault is not a crime of violence as PSP defined that term in Section
21.1 of its Regulations. Accordingly, based on the above, Fick’s Application is
granted in part.
b. Article I, Section 1 of the Pennsylvania Constitution and Fourteenth
Amendment (Due Process)
Fick further contends that he has a clear right to relief because PSP’s
Interpretation violates his due process rights afforded by article I, section 1 of the
Pennsylvania Constitution and the Fourteenth Amendment.26 Specifically, Fick
asserts that PSP’s Interpretation is inconsistent with the promulgated definition of a
crime of violence, which requires applicants to guess - subject to penalties of perjury
and misdemeanor violations - whether they had been convicted of a crime of
violence or a disqualifying criminal offense. Therefore, according to Fick, PSP’s
26
Fick claims that PSP waived its due process responses by failing to include them in PSP’s
Answer to the Application. Notably, however, Fick only makes broad references to his due process
arguments in his Application, and does not specifically object to PSP’s potential commingling of
the enforcement and adjudicative functions therein. See Application at 17, 20-21. Instead, he
particularized that argument in his memorandum of law in support of the Application. See
Memorandum of Law at 26-28. In the Answer, PSP denied allegations that it deprived Fick of his
procedural due process rights. See Answer at 17, 20-21. Moreover, although PSP did not
specifically respond to Fick’s commingling argument, it included due process arguments in its
opposing brief. Under such circumstances, PSP did not waive any response to Fick’s due process
arguments.
22
Interpretation is void for vagueness27 and the corresponding rule of lenity,28 and
violates due process. Fick further argues that the General Assembly failed to include
in Act 235 procedures to address denials or revocations of applications or hearings
and appeals related thereto when it was clearly aware of how to do so and, thus,
PSP’s Regulations violate applicants’ substantive and procedural due process rights.
Fick adds that PSP’s Regulations that allow the Commissioner to deny or revoke a
certification, then appoint a hearing examiner to conduct a hearing and issue findings
and conclusions that the Commissioner may ignore, violates procedural due process.
PSP maintains that there are no vagueness or lenity concerns because it
specifically defined crime of violence in the Regulations to include enumerated
offenses that an applicant can see and determine whether he/she has been so
convicted. PSP adds that because Fick will maintain his Act 235 certification despite
his simple assault conviction, Fick has not been deprived of any property right that
invokes either substantive or procedural due process.
Having concluded that PSP erred by applying the Interpretation, and
PSP may only deny an Act 235 qualification application for a crime of violence as
PSP defined that term in Section 21.1 of its Regulations, this Court agrees with PSP
that the crime of violence portion of PSP’s interpretation is neither void for
vagueness nor violates the rule of lenity. Act 235 qualification certification
applicants are clearly on notice that if they have been convicted of a crime of violence
as defined in Section 21.1 of PSP’s Regulations, they will not qualify for a
27
“A statute or regulation is unconstitutionally vague when its terms are not sufficiently
specific to inform those who are subject to it what conduct on their part will render them liable to
its penalties.” Pa. Virtual Charter Sch. v. Dep’t of Educ., 244 A.3d 885, 895 (Pa. Cmwlth. 2020)
(quoting Nelson v. State Bd. of Veterinary Med., 863 A.2d 129, 138 (Pa. Cmwlth. 2004)).
28
The rule of lenity is a fairness principle that penal laws must provide clear and
unequivocal warnings of unacceptable conduct, and any ambiguity therein will be construed in
favor of the defendant and against the government. See McGrath v. Bureau of Pro. &
Occupational Affs., 146 A.3d 310 (Pa. Cmwlth. 2016), aff’d sub nom., McGrath v. Bureau of Pro.
& Occupational Affs., State Bd. of Nursing, 173 A.3d 656 (Pa. 2017).
23
certification qualification and, thus, cannot move forward with Act 235 training and,
eventually, Act 235 certification.
However, whether PSP’s Regulations violate an applicant’s substantive
and procedural due process rights is less clear. “[S]ubstantive due process is the
‘esoteric concept interwoven within our judicial framework to guarantee
fundamental fairness and substantial justice.’” Germantown Cab Co. v. Phila.
Parking Auth., 206 A.3d 1030, 1042 (Pa. 2019) (quoting Khan v. State Bd. of
Auctioneer Exam’rs, 842 A.2d 936, 946 (Pa. 2004)).
“[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.
Pursuant to [a]rticle I, [s]ection 1 of the Pennsylvania
Constitution,[29] all persons within this Commonwealth
possess a protected interest in the practice of their
profession. Thus, after a license to practice a particular
profession has been acquired, the licensed professional has
a protected property right in the practice of that profession.
Nevertheless, the right to practice a chosen profession is
subject to the lawful exercise of the power of the [s]tate to
protect the public health, safety, welfare, and morals by
promulgating laws and regulations that reasonably
regulate occupations.
Khan, 842 A.2d at 946 (emphasis added; citations omitted).
Relative to procedural due process guarantees, the Fourteenth
Amendment declares, in relevant part, that no state “shall . . . deprive any person
of life, liberty, or property, without due process of law[.]” U.S. CONST. amend.
XIV, § 1 (emphasis added). This Court has explained:
29
Article I, section 1 of the Pennsylvania Constitution provides that “[a]ll men . . . 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.
24
Under both our federal and state constitutions, the basic
elements of procedural due process are “adequate notice,
the opportunity to be heard, and the chance to defend
oneself before a fair and impartial tribunal having
jurisdiction over the case.” Commonwealth v. Turner, . . .
80 A.3d 754, 764 ([Pa.] 2013). The [U.S.] Supreme Court
has consistently held that “some form of hearing” is
required before a final deprivation of a protected interest,
although the exact nature and mechanism of the required
procedure will vary based upon the unique circumstances
surrounding the controversy. Mathews v. Eldridge, 424
U.S. 319, 333 . . . (1976); C.S., 184 A.3d at 607. The
fundamental requirement of due process is the opportunity
to be heard “at a meaningful time and in a meaningful
manner.” Armstrong v. Manzo, 380 U.S. 545, 552 . . .
(1965).
S.F. v. Pa. Dep’t of Hum. Servs., 298 A.3d 495, 510 (Pa. Cmwlth. 2023) (footnote
omitted); see also Section 504 of the Administrative Agency Law, 2 Pa.C.S. § 504
(“No adjudication of a Commonwealth agency shall be valid as to any party unless
he shall have been afforded reasonable notice of a hearing and an opportunity to be
heard.”). “Due process is fully applicable to administrative hearings involving
substantial property and/or liberty rights.” S.F., 298 A.3d at 510 (emphasis
added). Ultimately, the burden is not on the agency to prove the validity of a
regulation, but on the challenger. See Sutton v. Bickell, 220 A.3d 1027 (Pa. 2019).
Therefore, Fick must first show that an Act 235 qualification
certification - the preliminary step that allows an applicant to proceed to Act 235
education and training before eventually being eligible for certification under Act
235 - is a property interest to which substantive and procedural due processes
attach.30 He has not done so. A petitioner fails to state a claim upon which relief
30
Although Pennsylvania courts have not directly addressed whether an Act 235
certification is a constitutionally protected liberty or property right subject to due process
protections, this Court has held that revocation of a lethal weapons license implicates a liberty
interest sufficient to trigger procedural due process protections. See Caba v. Weaknecht, 64 A.3d
25
may be granted if he does not identify a liberty interest or property right subject to
due process. See Robins v. Harry, 344 A.3d 889 (Pa. Cmwlth. 2025).
Even if an Act 235 qualification certification is a qualifying liberty
interest or property right, then this Court must determine whether the due process
PSP’s Regulations offers is fair.
A fair trial conducted in a fair tribunal is a basic and
fundamental requirement of due process. Fairness of
course requires an absence of actual bias in the trial of
cases. Courts have recognized that “the mere potential for
bias or the appearance of non-objectivity may be sufficient
to constitute a violation” of due process. Kuszyk v. Zoning
Hearing B[d.] of Amity T[wp.], 834 A.2d 661, 665 (Pa.
Cmwlth. 2003) . . . . A question of due process reasonably
involves an inquiry into the nature of the process actually
provided. Lyness v. State B[d.] of Med[.], . . . 605 A.2d
1204 ([Pa.] 1992); Stone [&] Edwards Ins[.] Agency, Inc.
v. Dep[’t] of Ins[.], . . . 636 A.2d 293, 297 [(Pa. Cmwlth.)],
aff’d, . . . 648 A.2d 304 ([Pa.] 1994).
HYK Constr. Co., Inc. v. Smithfield Twp., 8 A.3d 1009, 1018 (Pa. Cmwlth. 2010).
Pennsylvania courts have held that the due process right to a fair and
impartial tribunal under article I of the Pennsylvania Constitution is violated when
members of a board that make a decision to bring an enforcement action also
participate in the final adjudication thereof. See Lyness; see also HYK Constr. The
Stone & Edwards Court clarified that a single administrative agency may exercise
prosecutorial and adjudicative functions if there are walls of division that clearly
separate those functions. See id.; see also HYK Constr. Fick had the burden of
39 (Pa. Cmwlth. 2013). Pennsylvania courts have also recognized that various professional
certifications constitute property rights entitled to due process protection, including teaching
certificates and medical licenses. See N.T. v. Dep’t of Educ., 260 A.3d 1016 (Pa. Cmwlth. 2021);
see also Shah v. State Bd. of Med., 589 A.2d 783 (Pa. Cmwlth. 1991). Here, however, neither
party states nor analyzes whether an Act 235 qualification certification - the preliminary step
before education and training - is a liberty or property interest to which substantive and procedural
due processes attach.
26
showing PSP’s enforcement and adjudication procedures violate due process. See
Sutton. There is no record evidence that PSP impermissibly commingles its
prosecutorial and administrative functions and, thus, violates an applicant’s
procedural due process rights. Fick’s mere declaration to that effect does not
constitute record evidence. Accordingly, this Court cannot declare that Fick has a
clear right to relief under article I, section 1 of the Pennsylvania Constitution and/or
the Fourteenth Amendment.
3. Permanent Injunction
With the exception of circumstances not applicable here, declaratory
judgments stand alone or can be “additional and cumulative to all other available
remedies . . . .” 42 Pa.C.S. § 7541(b); see also Firearms Owners Against Crime -
Inst. for Legal, Legis. & Educ. Action v. Paris, 335 A.3d 1019, 1041 (Pa. 2025)
(There is an “established precept that declaratory judgments have independent value
and can be provided apart from other types of relief.”).
“[T]he purpose of awarding declaratory relief is to finally
settle and make certain the rights or legal status of parties.”
Geisinger Clinic v. Di Cuccio, . . . 606 A.2d 509, 519 ([Pa.
Super.] 1992) . . . . A declaratory judgment, unlike an
injunction, does not order a party to act. This is so because
“the distinctive characteristic of the declaratory judgment
is that the declaration stands by itself; that is to say, no
executory process follows as of course.” Petition of
Kariher, . . . 131 A. 265, 268 ([Pa.] 1925).
Eagleview Corp. Ctr. Ass’n v. Citadel Fed. Credit Union, 150 A.3d 1024, 1029-30
(Pa. Cmwlth. 2016). Although this Court may grant declaratory and injunctive relief
“whenever necessary and proper[,]” see Section 7538(a) of the DJA, 42 Pa.C.S. §
7538(a), this Court concludes that a permanent injunction is unnecessary here, where
PSP is bound by this Court’s declarations.
27
Conclusion
Based on the foregoing, this Court grants the Application, in part,
holding that Fick has a clear right to declaratory relief and declares that: (1) PSP’s
Interpretation violates article II, section 1 of the Pennsylvania Constitution’s Non-
Delegation Doctrine; (2) a crime of violence is the sole conviction basis on which
PSP may deny an Act 235 qualification certification (i.e., the only disqualifying
criminal offense under Section 21.1 of PSP’s Regulations is a crime of violence);
and (3) simple assault is not a crime of violence as PSP has defined that term in
Section 21.1 of its Regulations. The Application is denied in all other respects.
_________________________________
ANNE E. COVEY, Judge
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nathaniel Fick, :
Petitioner :
:
v. :
:
Lieutenant Colonel George Bivens, :
Acting Commissioner, Pennsylvania :
State Police, : No. 51 M.D. 2022
Respondent :
ORDER
AND NOW, this 28th day of May, 2026, Nathaniel Fick’s (Fick)
Application for Summary and Special Relief Pursuant to Pennsylvania Rule of
Appellate Procedure 1532(b), Pa.R.A.P. 1532(b) (Application) is GRANTED, in
part, and this Court declares: (1) Lieutenant Colonel George Bivens, Acting
Commissioner Pennsylvania State Police’s (PSP) interpretation that simple assault
is a crime of violence or a disqualifying criminal offense violates article II, section
1 of the Pennsylvania Constitution, PA. CONST. art. II, § 1 (Non-Delegation
Doctrine); (2) a crime of violence is the sole conviction basis on which PSP may
deny a qualification certification under the Lethal Weapons Training Act (Act 235)1
(i.e., the only disqualifying criminal offense under Section 21.1 of PSP’s
Regulations, 37 Pa. Code § 21.1, is a crime of violence); and (3) simple assault is
not a crime of violence as PSP has defined that term in Section 21.1 of its
Regulations.
The Application is DENIED in all other respects.
The Prothonotary is directed to return the $50.00 security to Fick.
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ANNE E. COVEY, Judge
1
Act of October 10, 1974, P.L. 705, as amended, 22 P.S. §§ 41-50.1.