A recent en banc Pennsylvania Superior Court decision, Gustafson v. Springfield, 282 A.3d 739, (Pa. Super. 2022), produced a sufficiently splintered set of opinions that the end result—a reversal of the trial court’s order sustaining preliminary objections—was contrary to the result that would have prevailed by counting judicial noses. This remarkable result warrants discussion, and perhaps a change to the Superior Court’s internal operating procedures.

The Gustafson en banc court was called on to decide two separate, but related, issues involving a federal statute, the Protection of Lawful Commerce in Arms Act, 15 U.S.C. Sections 7901-03 (Arms Act), that effectively immunized firearms manufacturers from suit over injuries stemming from intentional misuse of properly functioning firearms. The first question was whether the facts of the Gustafson case fell within the scope of the statutory immunity. The second was, assuming the Arms Act applied, was the statute constitutional under some combination of the commerce clause and the Tenth Amendment. In addressing those issues, the nine-member en banc panel produced five separate opinions:

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