October 13, 2017

By: Dennis Whitaker

Mandamus is the proper remedy when seeking to enforce an order of the Pennsylvania Office of Open Records (OOR) against a local agency, according to a Commonwealth Court panel holding in Drack v. Tanner and Newtown Twp., ___ A.3d ___ (Pa. Cmwlth. 2017), No. 288 C.D. 2016, filed October 12, 2017. The opinion, authored by Judge Brobson on a panel with Judge Wojcik and Senior Judge Leadbetter, clarifies procedural issues as to enforcement of OOR orders against local agencies; presages an issue regarding the proper remedy for similar cases involving state agencies, the legislature and the courts; and highlights a perceived conflict between two published court opinions. The opinion also contains helpful reminders about demurrers being limited to the four corners of the complaint; waiver and Pa. R.A.P. 1925; and, that unreported opinions are persuasive only.

The matter came to Commonwealth Court on Drack’s appeal from a Bucks County common pleas court order sustaining the Township’s and Tanner’s (the Township’s Open Records Officer (ORO)) preliminary objections to Drack’s complaint in mandamus. Drack’s mandamus action arose from his Right to Know Law (RTKL) request to the Township seeking records related to the acquisition and calibration of Electronic Non-Radar Devices (ENRADD).   ENRADDs are speed timing devices used by local police in lieu of radar.   The Township contracts with two vendors to supply and calibrate the devices properly.

The Township missed the deadline for responding to Drack’s RTKL request and it was deemed denied. Drack appealed to OOR. During the pendency of the OOR proceeding, ORO Tanner emailed one of its ENRADD vendors, YIS/Cowden, regarding any records it might have regarding device calibration. YIS/Cowden advised (1) the Township should have any records it possessed, that calibration procedures are governed by PennDOT regulations, (2) any calibration would have been done in accord with those regulations and (3) that the Township would have received a certificate stating the same. The Township subsequently provided Drack with all records in its possession and submitted an affidavit attesting to that fact and stating that no other responsive records exist. Based on that evidence, OOR held that Drack’s appeal was moot as to the records provided and ordered the Township to retrieve all responsive records from YIS/Cowden and the other vendor.

Approximately two years thereafter, Drack filed his complaint in mandamus by which he sought a court order directing the Township to produce all responsive documents in its possession and to retrieve all responsive documents from the two vendors. Drack also sought penalties on the basis that the Township and OOR Tanner acted in bad faith. The Township and Tanner filed preliminary objections in the nature of a demurrer and for failure to join a necessary party. They attached to their POs copies of emails from a representative of Davidheiser, the second vendor, which were copied to Drack, stating that Davidheiser had no responsive records and referencing the PennDOT regulations. The Township and Tanner argued that the RTKL did not require the Township to sue third parties to obtain records and that Drack had no common law or statutory right to compel such a suit. They argued further that if Drack wanted to compel YIS/Cowden and Davidheiser to produce records, he need to join them as additional defendants. Drack responded that the records were in constructive possession of the Township and that the Township was obliged to provide them.

The trial court sustained the POs and dismissed Drack’s complaint with prejudice. Drack filed a notice of appeal and the trial court subsequently issued its opinion per Pa. R.A.P. 1925(a). The court explained that its decision was based on an unpublished Commonwealth Court decision in Drack v. Hamilton & Borough of Carlisle, (Pa. Cmwlth., No. 2128 C.D. 2014, filed Jan. 13, 2016), appeal denied, 145 A.3d 728 (Pa. 2016) (Drack I). In Drack I, Drack filed a complaint in mandamus against the Carlisle and its ORO, Hamilton, seeking to compel them to comply with OOR’s directive requiring the Borough to produce records relating to its ENRADD devices. The Borough and Hamilton answered the complaint and joined YIS/Cowden. During the OOR proceedings, OOR rejected YIS/Cowden’s assertion that the records were proprietary and not subject to disclosure. Before the trial court, YIS/Cowden provided an affidavit and training notes responsive to Drack’s RTKL request stating that it possessed a single document responsive to one of Drack’s requests and that calibration procedures were set forth in 67 Pa. Code § 105.56. The Borough and YIS/Cowden filed a motion to dismiss Drack’s action as moot which the trial court granted. The court denied Drack’s request for penalties on the basis that the Borough and YIS/Cowden acted in good faith. Drack appealed to Commonwealth Court which held that “[t]he RTKL does not require the local agency to file an action to obtain documents,” and that it was “within the Borough’s rights to allow Drack to pursue further action.” Drack I, slip op. at 2. As to Drack’s argument that “the Borough improperly refused to compel YIS/Cowden to produce the responsive documents while also acting in concert with YIS/Cowden to interfere with his right to obtain the documents,” Commonwealth Court found that the Borough acted in good faith and detailed the Borough’s actions in response to Drack’s mandamus complaint, concluding that “the Borough complied with the requirements of Section 506(d) of the RTKL[, 65 P.S. § 67.506(d),] to the best of its ability and the record does not support Drack’s allegations of improper behavior on the part of the Borough.” Id. at 3. As such, Commonwealth Court affirmed the trial court’s dismissal of Drack’s mandamus action.

The trial court in the instant case found that the facts in Drack I were nearly identical and concluded that Drack was pursuing documents that did not exist against parties that held no duty to Drack, relying upon the email attached as an exhibit to Tanner’s and the Township’s POs. The court adopted Commonwealth Court’s reasoning in Drack I and sustained the POs. The trial court concluded further that the vendors were necessary parties because it could not compel the Township to sue them, and that Drack did not establish that he was entitled to mandamus because he failed to show that there was no other adequate remedy available. Before Commonwealth Court, Drack argued that the trial court erred in sustaining the POs and by denying his request for costs and penalties.

Before addressing the merits of Drack’s appeal, Commonwealth Court addressed an interesting procedural conundrum: although Drack’s complaint sounded in mandamus, he essentially sought to enforce OOR’s order; thus, his action could be construed as a petition for enforcement of administrative order as in Uniontown Newspapers, Inc. v. Dep’t of Corr., 151 A.3d 1196, 1202-03 (Pa. Cmwlth. 2016).  However, the court in a subsequent opinion, Capinski v. Upper Pottsgrove Twp., 164 A.3d 601, 607 (Pa. Cmwlth. 2017), held that a civil action in mandamus is an appropriate vehicle to seek enforcement of an unappealed OOR determination against a local agency. On that basis, the court evaluated the POs in the context of a mandamus action. Under that rubric, the court held that the trial court erred when it sustained the POs because it relied on the email attached to the POs and others attached to the memorandum of law filed in support which averred facts not found in Drack’s complaint. See Martin v. Dep’t of Transp., 556 A.2d 969, 971 (Pa. Cmwlth. 1989) (demurrer cannot aver the existence of facts not apparent from the face of the challenged pleading). Martin instructs that both Commonwealth Court and the trial court are limited to consideration of the allegations in Drack’s complaint when considering the Township’s demurrer, and no testimony or other evidence outside the complaint may be considered when resolving the demurrer. See Beaver v. Coatesville Area Sch. Dist., 845 A.2d 955, 958 (Pa. Cmwlth. 2004). Commonwealth Court found further that Drack pleaded sufficient facts to bring the action against the Township and that the vendors were not necessary parties because Drack sought only to compel the Township to comply with the OOR directive. The court noted that after the pleadings were closed, the trial court could evaluate the Township’s actions to determine if it complied with the OOR directive, and if not, could order the Township to take further action short of bringing an action against the vendors. Finally, Commonwealth Court noted that it was too early to determine if the Township acted in bad faith based on the pleadings alone, and held that the trial court erred when it dismissed Drack’s request for fees and penalties.

The more significant discussion by the court was the one referenced earlier, the apparent conflict between Uniontown and Capinski and the eventual resolution of the proper method of enforcing OOR orders against Commonwealth entities. As stated by Judge Brobson:

This Court issued our decision in Uniontown Newspapers subsequent to the issuance of our unreported decision in Drack I. Subsequent to our decision in Uniontown Newspapers, however, this Court issued its decision in Capinski v. Upper Pottsgrove Township, 164 A.3d 601 (Pa. Cmwlth. 2017), holding that an original jurisdiction civil action in mandamus is the proper vehicle to seek enforcement of an unappealed OOR final determination against a local agency. Although the majority decision in Capinski purports to distinguish the Court’s contrary holding in Uniontown Newspapers, one could reasonably question whether the reported opinions are in conflict. See Capinski (Brobson, J., concurring).

With respect to local agency compliance with unappealed OOR decisions, Capinski offers a workable paradigm for enforcement—i.e., a civil action for writ of mandamus. The paradigm, however, may fall apart when applied in RTKL matters involving Commonwealth agencies, legislative agencies, and judicial agencies, as was the case in Uniontown. If the ruling in Capinski applies perforce to enforcement of unappealed OOR determinations against those agencies as well, any final order issued by this Court in such a matter would be appealable as of right to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court has expressed its strong preference, however, that matters involving the enforcement of unappealed Commonwealth agency actions should be dealt with in this Court’s appellate, rather than original, jurisdiction, with only discretionary review by the Pennsylvania Supreme Court. See Dep’t of Envtl. Prot. v. Cromwell Twp., Huntingdon Cnty., 32 A.3d 639 (Pa. 2011); Pa. Human Relations Comm’n v. Scranton Sch. Dist., 507 A.2d 369, 370 (Pa. 1986).

As this matter involves a local agency, however, we are constrained to follow Capinski. We are certain, however, that at some point we will need to resolve the question whether a civil action in mandamus is the appropriate vehicle to seek enforcement of an unappealed OOR final determination against a Commonwealth agency, legislative agency, or judicial agency (Capinski), or, instead, whether any such effort to enforce should be directed to this Court’s appellate jurisdiction, ancillary to our statutory jurisdiction under Section 1301 of the RTKL, 65 P.S. § 67.1301 (relating to appeals from OOR final determinations involving Commonwealth, legislative, and judicial agencies) (Uniontown).

Drack v. Tanner and Newtown Twp., ___ A.3d at ___, slip op. at 8-9 n.10.

The impact on appellate practice related to enforcement against Commonwealth entities of unappealed OOR decisions is obvious. If the Uniontown rubric is applied, any appeal of Commonwealth Court’s decision to the Supreme Court would be by permission rather than the direct appeal potentially available if Capinski applies. Counsel attempting to enforce OOR actions against Commonwealth take heed.

Of the remaining reminders noted earlier, that regarding mandamus is discussed above. The court also discusses a potential waiver issue raised by Tanner and the Township related to Drack’s Rule 1925(b) statement of errors complained of on appeal. As explained by the court:

The Township argues that Drack waived the majority of his claims raised on appeal by failing to raise them in his concise statement of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b). Drack, however, prefaced his concise statement according to Pa. R.A.P. 1925(b)(4)(vi) which provides: “[i]f the appellant. . . cannot readily discern the basis for the judge’s decision, the appellant shall preface the Statement with an explanation as to why the Statement has identified the errors in only general terms. In such a case, the generality of the Statement will not be grounds for finding waiver.” Because the trial court did not issue a written opinion until after Drack filed his concise statement, we construe Drack’s claims on appeal to be included in the general error “[the trial court] erred in granting [Appellee’s preliminary objections]” raised in his concise statement. (R.R. at 48a); see also Official Note to Pa. R.A.P. 1925(b) (“[Pa. R.A.P. 1925(b)(4)] allows appellants to rely on the fact that subsidiary issues will be deemed included if the overarching issue is identified and if all of the issues have been properly preserved in the trial court.”).

Drack, ___ A.3d at ___, slip op. at 4 n.4.

Finally, the court addressed Drack’s assertion that the trial court improperly viewed Drack I as binding precedent notwithstanding that it is unreported. The court rejected this assertion stating:

Drack asserts that the trial court improperly viewed Drack I as binding precedent despite the fact that it is an unreported panel decision of this Court. Pursuant to Commonwealth Court Internal Operating Procedure § 414, 210 Pa. Code § 69.414, an unreported panel decision of this Court, issued after January 15, 2008, may be cited for its persuasive value. The trial court did not expressly state that it viewed Drack I as binding precedent; rather, it stated that it adopted the reasoning set forth in Drack I. Thus, the trial court did not err in citing Drack I as persuasive precedent. Likewise, we cite Drack I herein for its persuasive value rather than as binding precedent.

Drack, ___ A.3d at ___, slip op. at 5 n.5.

Although Drack comes in the guise of straightforward review of the sustaining of POs by the trial court, on closer inspection it has much to offer the astute advocate. It clarifies procedural issues as to enforcement of OOR orders against local agencies, presages an issue regarding the proper remedy for similar cases involving state agencies, the legislature and the courts and highlights a perceived conflict between two published court opinions. Check back with Pennsylvania Appellate Advocate often for updates on these and other issues pertinent to your practice.

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.