December 1, 2017

By: Dennis Whitaker

In Burda v. Pennsylvania Judicial Conduct Bd., ___ A.3d ___ (Pa. Cmwlth. 2017), No. 1779 C.D. 2016, filed November 30, 2017, the court, per Senior Judge Colins, writing for a panel that included Judges Simpson and Covey, affirmed the Office of Open Records’ (OOR) final determination that denied Burda’s Right to Know Law (RTKL) appeal for lack of jurisdiction and transferred the appeal to the Appeals Officer for the Pennsylvania Judicial Conduct Board (JCB). The basis for the court’s affirmance is that the JCB is a judicial agency as defined by RTKL section 102, 65 P.S. § 67.102.

Burda submitted a RTKL request to the JCB seeking information on how many RTKL appeals were denied as untimely by the JCB based on improper application of the appeal deadline. The JCB denied the request asserting that it required the creation of a record that does not exist and that it was not a financial record. Burda appealed to OOR which denied the appeal holding that the JCB is a judicial agency not subject to OOR jurisdiction. Burda appealed.

The court held that OOR correctly denied Burda’s appeal because it lacked jurisdiction to hear an appeal from a denial of a record request by a judicial agency, citing RTKL sections 503(b) and 1101(a), 65 P.S. §§ 67.503(b) and 67.1101(a), citing Faulk v. Philadelphia Clerk of Courts, 116 A.3d 1183, 1185-86 (Pa. Cmwlth. 2015), and Frazier v. Philadelphia County Office of Prothonotary, 58 A.3d 858, 859 (Pa. Cmwlth. 2012). The court succinctly analyzed the JCB’s status as a judicial agency as follows:

. . . . The [RTKL] defines “[j]udicial agency” as “[a] court of the Commonwealth or any other entity or office of the unified judicial system.” Section 102 of the Right-to-Know Law, 65 P.S. § 67.102. The JCB is an entity or office of the unified judicial system. Pa. Const. art. 5, § 18(a) (creating the JCB as “an independent board within the Judicial Branch”); 42 Pa. C.S. § 2101(a) (“In accordance with section 18 of Article V of the Constitution of Pennsylvania, the Judicial Conduct Board shall be an independent board within the Judicial Branch”); Commonwealth ex rel. Judicial Conduct Board v. Griffin, 918 A.2d 87, 94 (Pa. 2007) (the JCB “is an appointed entity of limited scope, created within the judicial system itself”). Schneller v. Judicial Conduct Board, (Pa. Cmwlth., No. 239 M.D. 2014, filed Dec. 11, 2014), 2014 WL 10298808, aff’d without op., 123 A.3d 326 (Pa. 2015), cited by Petitioner, is not to the contrary. In Schneller, the Court held the JCB was not a court and that an action against it for mandamus was therefore within this Court’s original jurisdiction. Slip op. at 4-7, 2014 WL 10298808 at *2-*3. The Court, however, also specifically held that the JCB is an agency of the judicial system. Id. at 5-7, 2014 WL 10298808 at *2-*3. The issue here is not whether the JCB is a court, but whether it is an entity within the judicial system. Because the JCB is an entity within the judicial system, it is a judicial agency under the [RTKL]. 65 P.S. § 67.102.

Burda, slip op. at 3 (footnote omitted). With regard to Schneller, the court noted that “[b]ecause it is an unreported decision, Schneller is not binding precedent, but is considered by the Court for its persuasive value. 210 Pa. Code § 69.414(a).” Burda, slip op. at 3, n.4.

Burda also argued that the JCB is subject to OOR’s jurisdiction because it is an independent state agency. This argument, too, was rejected by the court as follows:

OOR has jurisdiction over appeals from denials of [RTKL] requests by Commonwealth agencies and “Commonwealth agency” is defined as including “an independent agency and a State-affiliated entity.” 65 P.S. §§ 67.102, 67.503(a), 67.1101(a). The [RTKL], however, also expressly provides that the term “Commonwealth agency … does not include a judicial or legislative agency.” 65 P.S. § 67.102. Because the JCB is “an independent board within the Judicial Branch,” Pa. Const. art. 5, § 18(a) (emphasis added); 42 Pa. C.S. § 2101(a) (emphasis added), it is a judicial agency and is not within OOR’s jurisdiction, regardless of its status as an independent entity.

Burda, slip op. at 4.

In addition to the holding on the JCB’s status vis-à-vis the RTKL, the court also addressed an issue important to appellate practitioners regarding waiver. Burda argued in his brief that his appeal involved the denial of a request for records for “’documents concerning the finalized investigation into the issue of the emails circulated by, between, and among members of the judiciary, lawyers, and others that was investigated by Doug Gansler per appointment by the PA Office of Attorney General’ (the Gansler documents).” Slip op. at 2, n.2. The court rejected this characterization based on the OOR certified record. The JCB argued that Burda waived the issue by failing to state it in his petition for review, a proposition also rejected by the court. As to waiver, the court stated the following:

Under the language of Rule 1513 of the Rules of Appellate Procedure prior to 2015, issues not raised in a petition for review appealing an agency determination were waived. See, e.g., Glunk v. Department of State, 102 A.3d 605, 611 (Pa. Cmwlth. 2014); Jimoh v. Unemployment Compensation Board of Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006). That is no longer the law. Rule 1513 was amended on December 2, 2014, effective January 1, 2015, and now provides that “the omission of an issue from the statement [of objections in the petition for review] shall not be the basis for a finding of waiver if the court is able to address the issue based on the certified record.” Pa. R.A.P. 1513(d)(5). See also Pa. R.A.P. 1513 Official Note – 2014 (stating that the December 2, 2014 amendments “are intended to preclude a finding of waiver if the court is able, based on the certified record, to address an issue not within the issues stated in the petition for review but included in the statement of questions involved and argued in a brief”).

Burda, slip op. at 2, n.2.

Thus, in a succinct opinion, Senior Judge Colins clarified the JCB’s status as a judicial agency, and provided a reminder that an issue not stated in the petition for review is not waived under the circumstances outlined in Rule 1513. Please visit frequently for more updates on appellate opinions of interest from Commonwealth Court, Superior Court and the Supreme Court.

About the Author:

Dennis A. Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service.  Focusing on government appellate and original jurisdiction practice in state and federal courts, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating the appeals process.