Barton v. Penco

• Decision Date: 13 November 1981
• Citation: 292 Pa.Super. 202,436 A.2d 1222
• Parties: Matthew BARTON, Appellant, v. Staff Inspector Ralph PENCO, Police Commissioner Morton Solomon and City of Philadelphia.
• Court: Pennsylvania Superior Court

Page 1222

436 A.2d 1222

292 Pa.Super. 202

Matthew BARTON, Appellant, v. Staff Inspector Ralph PENCO, Police Commissioner Morton

Solomon and City of Philadelphia.

Superior Court of Pennsylvania.

Submitted Feb. 23, 1981.

Filed Nov. 13, 1981.

Robert A. Gelinas, Philadelphia, for appellant.

Tyler E. Wren, Asst. City Sol., Philadelphia, for appellees.

Before SPAETH, JOHNSON and WIEAND, JJ.

WIEAND, Judge:

Matthew Barton, a police officer, was accused of receiving stolen property by an unidentified complainant. After a thorough investigation had been conducted by Inspector Ralph Penco, the accusation was found to be groundless. Barton thereafter commenced an action in equity to compel Penco, Police Commissioner Morton Solomon, and the City of Philadelphia to disclose the name and address of the complainant and the contents of the investigative file. The trial court, after hearing, entered an order denying a mandatory injunction and dismissing the complaint with prejudice.

Barton, without filing exceptions, took an immediate appeal to this Court. Therefore, we must first determine whether appellant's failure to file exceptions precludes him from presenting substantive arguments on appeal. See: Pa.R.C.P. 1518; Logan v. Cherrie, 444 Pa. 555, 282 A.2d 236 (1971).

The trial court's order from which the instant appeal was filed did not comply with the Rule 1517 requirements of an adjudication. ¹ It contained "no findings of fact, no conclusions of law, nor any language which would indicate that the order (was) a decree nisi, or that the parties were required to file exceptions to perfect a right of appeal. There is nothing on the face of the order which would indicate that it is anything other than a final order and, as such, the requirements of Rule 1518 are not applicable. When the court's order neither comports with the requirements of Rule 1517 nor indicates on its face that the order is a decree nisi, it should not be presumed that exceptions must be filed in order to preserve a right of appeal." Commonwealth v. Derry Township, et al., 466 Pa. 31, 41-42, 351 A.2d 606, 611 (1976). See also: Greenwood Township v. Kefo, Inc., 52 Pa.Cmwlth. 367, 416 A.2d 583 (1980). The instant appeal, therefore, is not improper for this reason.

Appellant's complaint was based exclusively on the Right-to-Know Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1-66.4. ² He contends, as he did in the court below, that the file encompassing the investigation is a "public record" and, therefore, subject to examination and inspection. It is a public record, he argues, because it is a "... minute, order, or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons ...." See: 65 P.S. § 66.1(2).

Appellant has not been prosecuted or disciplined in any way. His employment has not been terminated, and he has not been denied access to his personnel file. As justification for examining the departmental investigation he suggests the possibility that a civil action for defamation may be instituted against the police informant whose accusations caused the investigation to be made.

In West Shore School District v. Homick, et al., 23 Pa.Cmwlth. 615, 619, 353 A.2d 93, 95 (1976), the Commonwealth Court observed: "A decision 'fixing' rights or duties of a person is not the same thing as a gathering of information, notations, and evaluations that may or may not be utilized at some future time to reach a decision that would fix rights or duties." The same court subsequently placed a broad construction upon the term "fixing" in Lamolinar v. Barger, et al., 30 Pa.Cmwlth. 307, 373 A.2d 788 (1977). It there said "... we do not read the term 'fixing' to require the affirmative establishment or creation of rights, privileges, immunities, duties or obligations. ... (W)e believe it in keeping with the spirit and intent of the Right-to-Know Law to construe 'public record' to include decisions which establish, alter, abolish or deny rights, privileges, immunities, duties or obligations; in short, decisions which affect them." Id. at 311, 373 A.2d at 790.

In the instant case, appellant's rights, privileges, immunities, duties and obligations have not been altered, abolished, or denied in any way. Cf. Mitman v. County Commissioners of Chester County, 55 Pa.Cmwlth. 358, 423 A.2d 1333 (1980). On the contrary, the departmental investigation failed to sustain the averments of misconduct made about him by the complainant. If we assume that the investigation resulted in an affirmative "decision" not to prosecute or discipline appellant, the informant, his accusations, and the file of the investigation were nonetheless immune from examination under the Right-to-Know Law.

The statute specifically excludes from those records which are to be open for examination and inspection "any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties...." 65 P.S. § 66.1(2). The complainant, whose identity appellant sought to discover, gave information which caused Inspector Penco to institute and conclude a departmental investigation. This was done as a part of his official duties as a law enforcement officer and member of the Internal Affairs...