Baron v. Commonwealth Dep't of Human Servs., 503 M.D. 2016.

• Decision Date: 21 September 2017
• Docket Number: No. 503 M.D. 2016.,503 M.D. 2016.
• Citation: 169 A.3d 1268
• Parties: Bruce G. BARON, Petitioner v. COMMONWEALTH DEPARTMENT OF HUMAN SERVICES; and, Health Partners Plans, Inc., Respondents
• Court: Pennsylvania Commonwealth Court

169 A.3d 1268

Bruce G. BARON, Petitioner

v.COMMONWEALTH DEPARTMENT OF HUMAN SERVICES; and, Health Partners Plans, Inc., Respondents

No. 503 M.D. 2016.

Commonwealth Court of Pennsylvania.

Argued June 7, 2017

Decided September 21, 2017

Bruce G. Baron, Harrisburg, for petitioner.

Marisa L. Cohan, Assistant Counsel, Harrisburg, for respondent Department of Human Services.

James J. Rodgers, Philadelphia, for respondent Health Partners Plans, Inc.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JOSEPH M. COSGROVE, Judge

OPINION BY JUDGE SIMPSON

In this matter of first impression, we consider whether a requester may enforce an order to disclose records sought under the Right-to-Know Law (RTKL)¹ while an appeal of that order is pending. Before us are Health Partners Plans, Inc.'s (Health Partners) preliminary objections in the nature of a demurrer to Bruce G. Baron's (Petitioner) petition for review seeking mandamus relief in our original jurisdiction to enforce the Office of Open Records' (OOR) order directing the Department of Human Services (DHS) to disclose records to him within 30 days. Because Petitioner fails to show a clear right or mandatory duty, we sustain the preliminary objections and dismiss his petition with prejudice.

I. Background

Petitioner submitted a RTKL request to DHS for rates paid to nursing homes by managed care organizations (MCOs) participating in the Medical Assistance program, HealthChoices. After notifying the MCOs, DHS responded that it lacked possession of the rates. Based on the MCOs' claimed exemptions, DHS denied access. Petitioner appealed to OOR.

OOR invited the parties to submit evidence, and it advised DHS to notify interested third parties. After receiving notice, the MCOs, comprised of the Health Plans,² Gateway Health Plan, Inc. (Gateway) and Health Partners, elected to participate in OOR's proceedings under Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c). The MCOs submitted evidence to support their claimed exemptions. Gateway also argued the rates did not qualify as records of DHS under the RTKL.

After developing the evidentiary record, OOR granted Petitioner's appeal. See Baron v. Dep't of Human Servs., OOR Dkt. No. AP 2016–1038 (July 13, 2016) (Final Determination). Specifically, it stated: "[DHS] is required to provide the requested records as directed." Id. at 10 (emphasis added) (Disclosure Order). Notably, the Disclosure Order did not direct the MCOs to take any action.

Within 30 days, the Health Plans and Gateway filed petitions for review to the Disclosure Order. Petitioner then filed a timely cross-petition for review, later amended to delete any reference to the RTKL as a basis for our jurisdiction.

Subsequently, Petitioner filed a "Petition for Review in Mandamus & Related Ancillary Relief Petition for Enforcement of Final Order" (Mandamus Petition) against DHS and Health Partners as respondents. The Mandamus Petition did not name OOR as a respondent, or ask this Court to compel OOR to enforce its Disclosure Order pursuant to Pa. R.A.P. 3761.

In his Mandamus Petition, Petitioner acknowledged the timely appeals by the Health Plans (No. 1357 C.D. 2016) and Gateway (No. 1358 C.D. 2016), (collectively, Direct–Interest Participants). Mandamus Pet. at ¶ 2. Petitioner also admitted he filed a cross-petition for review, which, in part, asked this Court to enforce the Disclosure Order in our appellate jurisdiction (No. 1427 C.D. 2016). Id. This Court, on its own motion, consolidated the three appeals to the Final Determination (collectively, Consolidated Appeals). Significantly, in our appellate jurisdiction, Petitioner challenges the final determination underlying the Disclosure Order for which he now seeks enforcement in our original jurisdiction.

DHS filed an answer to the Mandamus Petition.³ Health Partners filed preliminary objections to the Mandamus Petition, to which Petitioner replied. After argument on the preliminary objections, President Judge Mary Hannah Leavitt directed the parties to brief whether the Consolidated Appeals triggered the automatic stay in Section 1301(b) of the RTKL, 65 P.S. § 67.1301(b). The en banc Court heard argument, seriately, with the Consolidated Appeals. After briefing and argument, the matter is now ready for disposition.

II. Discussion

Petitioner alleges the Disclosure Order binds DHS and Health Partners. Mandamus Pet. at ¶ 8 ("The [Disclosure Order] ordered DHS and Health Partners ... to provide to Petitioner documents in the constructive possession of DHS ...."). He also contends there is no stay in effect under Section 1301(b) of the RTKL, 65 P.S. § 67.1301(b), because none of the Consolidated Appeals met the statutory criteria set forth in Section 1301(a) of the RTKL, 65 P.S. § 67.1301(a). Notwithstanding the Consolidated Appeals, Petitioner claims the Disclosure Order remains enforceable because neither DHS nor Health Partners exercised its right to appeal from the Disclosure Order, and neither requested a stay.

Health Partners argues Petitioner cannot sustain a claim because he does not satisfy the prerequisites for mandamus relief. In addition to the demurrers based on the absence of a mandatory duty, Health Partners maintains the Consolidated Appeals triggered the automatic stay under the RTKL, and afford Petitioner an adequate legal remedy in this Court's appellate jurisdiction. Further, it claims the Mandamus Petition is preempted by the Defend Trade Secrets Act (DTSA), 18 U.S.C. §§ 1831 – 1839, and is barred by the doctrine of lis pendens .

A. Legal Standards

As to preliminary objections in the nature of a demurrer, we may sustain preliminary objections only when, based on the facts pled, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief. Mazur v. Trinity Area Sch. Dist., 599 Pa. 232, 961 A.2d 96 (2008). "For the purpose of evaluating the legal sufficiency of the challenged pleading, this Court must accept as true all well-pled, material, and relevant facts alleged in the complaint and every inference that is fairly deducible from those facts." Markham v. Wolf, 147 A.3d 1259, 1270 (Pa. Cmwlth. 2016) (en banc ). This does not include any legal conclusions stated in the pleading. Armstrong Cnty. Memorial Hosp. v. Dep't of Pub. Welfare, 67 A.3d 160 (Pa. Cmwlth. 2013).

The common law writ of mandamus lies to compel the performance of a ministerial act or mandatory duty. Chesapeake Appalachia, LLC v. Golden, 35 A.3d 1277 (Pa. Cmwlth. 2012). "The burden of proof falls upon the party seeking this extraordinary remedy to establish his legal right to such relief." Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331, 1335 (1996). To state a claim for mandamus, a petitioner must establish the following three elements: (1) a clear legal right to relief in the petitioner; (2) a corresponding duty in the respondent; and, (3) the lack of any other adequate and appropriate remedy. Wilson v. Pa. Bd. of Prob. & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). "Mandamus is not available to establish legal rights but only to enforce rights that have been established." Smires v. O'Shell, 126 A.3d 383, 387 (Pa. Cmwlth. 2015) (citations omitted). Further, "[a]s a high prerogative writ, mandamus is rarely issued and never to interfere with a public official's exercise of discretion." Id.

B. Preliminary Objections

Health Partners raises several preliminary objections in the nature of a demurrer pursuant to Pa. R.C.P. No. 1028(a)(4). First, Health Partners argues mandamus is not a form of relief that may be obtained against it as a private party. Second, it asserts the Disclosure Order does not mandate non-agency action. Third, it explains DHS owes no duty because the Disclosure Order is the subject of the Consolidated Appeals. As a result, disclosure is stayed under Section 1301(b) of the RTKL, 65 P.S. § 67.1301(b). Further, disclosure is precluded by the DTSA. In addition, Health Partners contends the Mandamus Petition is barred by the doctrine of lis pendens . Essentially, it asserts Petitioner has an adequate legal remedy through the Consolidated Appeals, and his claims fall within this Court's appellate, as opposed to original, jurisdiction.

1. Mandamus

First, we consider whether the Mandamus Petition states a claim for which relief may be granted against either Health Partners or DHS.

a. Duty on Health Partners

Health Partners argues mandamus is not appropriate against a private party. Further, it emphasizes the Disclosure Order does not mandate it to perform any action. Therefore, mandamus is an ineffective form of relief as to it. We agree.

"Mandamus is a device that is available in our system to compel a tribunal or administrative agency to act when that tribunal or agency has been ‘sitting on its hands.’ " Pa. Dental Ass'n v. Ins. Dep't, 512 Pa. 217, 516 A.2d 647, 652 (1986) (emphasis added). One of the three elements required to state a claim for mandamus relief is a mandatory duty on the part of the respondent. Wilson.

Here, the source of the mandatory duty is the Disclosure Order. By its express terms, the Disclosure Order imposes no duty on Health Partners with which Petitioner may enforce compliance. It does not mention the MCOs, or direct DHS to obtain responsive records from the MCOs. Because Petitioner cites no other source for the mandatory duty, he fails to state a mandamus claim against Health Partners.

b. Duty on DHS

Next, we consider whether Petitioner states a mandamus claim against DHS. On its face, the Disclosure Order imposes a mandatory duty on DHS as it directs DHS to disclose responsive records to Petitioner within 30 days. However, Petitioner admits that the Disclosure Order he seeks to enforce is the same order under attack in the Consolidated Appeals, including a cross-petition ...