Drack v. Tanner

• Decision Date: 12 October 2017
• Docket Number: No. 288 C.D. 2016,288 C.D. 2016
• Citation: 172 A.3d 114
• Parties: Earle DRACK, Appellant v. Ms. Jean TANNER, Open Records Officer and Newtown Township
• Court: Pennsylvania Commonwealth Court

172 A.3d 114

Earle DRACK, Appellant

v.Ms. Jean TANNER, Open Records Officer and Newtown Township

No. 288 C.D. 2016

Commonwealth Court of Pennsylvania.

Submitted on Briefs October 14, 2016

Decided October 12, 2017

Earle Drack, pro se.

Jeffrey P. Garton, Langhorne, for appellees.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE BROBSON

Appellant Earle Drack (Drack), proceeding pro se , appeals from an order of the Court of Common Pleas of Bucks County (trial court), which sustained the preliminary objections filed by Newtown Township (Township) and Jean Tanner, in her capacity as Open Records Officer for the Township (Tanner), to Drack's complaint in mandamus (Complaint). For the reasons that follow, we reverse the trial court's order and remand the matter to the trial court for further proceedings.

On August 17, 2012, Drack submitted to the Township a request for records pursuant to the Right-to-Know Law (RTKL),¹ seeking various records related to the acquisition and calibration of "ENRADD devices."² ENRADDs are speed-timing devices used by police officers to monitor the speed of motor vehicles travelling on the roadways. The Township contracts with two companies, Davidheiser Inc. (Davidheiser) and YIS/Cowden Group, Inc. (YIS/Cowden), to supply the ENRADDs and certify that they are properly calibrated.

On August 22, 2012, the Township invoked a 30–day extension pursuant to Section 902(b)(2) of the RTKL, 65 P.S. § 67.902(b)(2). The Township did not issue a response by the extended deadline, and, thus, the request was deemed denied. On October 1, 2012, Drack appealed the Township's denial to the Office of Open Records (OOR). Both parties supplemented the record before the OOR pursuant to Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c). On October 11, 2012, Tanner sent an e-mail to Jim Cowden, a representative of YIS/Cowden, to inform him that YIS/Cowden had been joined as a third party to the appeal. On October 12, 2012, Cowden responded via e-mail:

Anything you have from [YIS/Cowden] you would have in your records. As for any calibration procedures we are governed by PennDOT Title 67 Chapter 105^[3] and any calibration we would have performed would have been done in accordance to this law and you would have received a certificate stating that fact. There is nothing else for us to provide.

FYI, Mr. Drack already has obtained this information I believe multiple times.

At this point, the Township provided to Drack all responsive records in its possession. The Township also submitted a notarized affidavit, which provided that, during the course of the appeal, the Township had produced all responsive records in its possession and that no other responsive records exist.

On October 18, 2012, an OOR Appeals Officer issued a decision, holding that the "Township has provided responsive records to [Drack] during the course of this appeal and evidence that no other responsive records exist within its possession. Based on this evidence, the appeal is moot as to the records provided." (Reproduced Record (R.R.) at 17a.) Accordingly, the Appeals Officer dismissed Drack's appeal as moot as to those documents. The Appeals Officer further ordered that the Township retrieve all responsive public records from Davidheiser and YIS/Cowden, to the extent that such records exist.

Approximately two years later, on November 14, 2014, Drack filed his Complaint in the trial court. Drack's Complaint requested the trial court to order the Township to produce all responsive documents in its possession and to retrieve all responsive documents from Davidheiser and YIS/Cowden. The Complaint also sought penalties and costs, alleging that the Township and Tanner acted in bad faith.

On December 23, 2014, the Township filed preliminary objections in the nature of demurrer and for failure to join a necessary party. The Township attached to its preliminary objections copies of e-mails from Lori Smith (Smith), a representative of Davidheiser, which were copied to Drack. In her e-mails, dated December 10, 2012, Smith stated that Davidheiser had no responsive records in its possession and referred the Township to 67 Pa. Code § 105.95 in response to Drack's request for information about how the calibration is performed. The Township forwarded Smith's response to Drack. The Township argued that the RTKL does not require a public body to bring suit against a third party to obtain records and that Drack has no right under any common law or statutory authority to compel the Township to sue Davidheiser or YIS/Cowden to obtain any potentially responsive records. With respect to its preliminary objection for failure to join a necessary party, the Township argued that, in order for Drack to compel Davidheiser or YIS/Cowden to turn over any responsive documents, Drack would need to join them as additional defendants. Drack filed an answer to the Township's preliminary objections on January 16, 2015, arguing that the records were in the constructive possession of the Township, and, thus, the Township was obligated to provide them.

On February 5, 2016, the trial court sustained the Township's preliminary objections and dismissed Drack's claims with prejudice. Drack filed a notice of appeal on February 22, 2016.⁴ On May 11, 2016, the trial court issued an opinion pursuant to Pa. R.A.P. 1925(a), discussing the reasoning behind its decision to sustain the Township's preliminary objections. The trial court explained that it based its decision on an unpublished decision from this Court with substantially similar facts: Drack v. Hamilton & Borough of Carlisle , 2016 WL 182499 (Pa. Cmwlth., No. 2128 C.D. 2014, filed Jan. 13, 2016),appeal denied , 145 A.3d 728 (Pa. 2016) ( Drack I ).⁵ The trial court, after fully reciting the facts in Drack I , observed that the facts in Drack I are nearly identical to the facts in this case. The trial court concluded that, here, as in Drack I , Drack was pursuing documents that do not exist against parties that fulfilled any duty to him. In so doing, the trial court relied upon an e-mail attached as an exhibit to the preliminary objections. The trial court then adopted this Court's rationale in Drack I and sustained the preliminary objections. The trial court also concluded that, because the trial court could not compel the Township to bring suit against a third party, Davidheiser and YIS/Cowden were necessary parties in order for Drack to obtain the relief sought in his complaint. Finally, the trial court opined that Drack failed to meet the test to establish that he was entitled to the extraordinary relief of a writ of mandamus because he failed to establish that there was no other appropriate or adequate remedy available.

On appeal,⁶ Drack argues that the trial court erred in sustaining the Township's preliminary objections in the nature of a demurrer and for failure to join a necessary party. Drack also argues that the trial court erred in denying his request for costs and penalties.⁷

As a preliminary matter, we note that Drack styled his Complaint as an action in mandamus,⁸ although his action is based on the following averments: (1) the OOR's final determination required the Township to retrieve and provide the responsive records from Davidheiser and YIS/Cowden; (2) the Township had failed to retrieve and provide the responsive records from Davidheiser and YIS/Cowden; and (3) the Township acted in bad faith by refusing or otherwise failing to retrieve responsive records. (R.R. at 5a–10a.) Drack's Complaint, therefore, essentially seeks to enforce an order of the OOR and could be construed as a petition for enforcement of an administrative order.⁹ See Uniontown Newspapers, Inc. v. Pa. Dep't of Corr. , 151 A.3d 1196, 1202 (Pa. Cmwlth. 2016). Nonetheless, this Court has also recently ruled that a civil action in mandamus is an appropriate vehicle to seek enforcement of an unappealed OOR determination against a local agency. Capinski v. Upper Pottsgrove Twp. , 164 A.3d 601, 607 (Pa. Cmwlth. 2017). Accordingly, we will evaluate the merit of the Township's preliminary objections in the context of a complaint in mandamus.¹⁰ Regardless of the context in which we consider the preliminary objections, the result would remain the same.

As to the Township's preliminary objection based on demurrer, it is axiomatic that "a demurrer cannot aver the existence of facts not apparent from the face of the challenged pleading." Martin , 556 A.2d at 971. Under Martin , both this Court and the trial court are limited to consideration of the allegations as set forth in Drack's Complaint when considering the Township's demurrer, and no testimony or other evidence outside of the Complaint may be considered to dispose of the legal issues presented by the demurrer. See Beaver v. Coatesville Area Sch. Dist. , 845 A.2d 955, 958 (Pa. Cmwlth. 2004). Here, the trial court, in granting the preliminary objections, relied upon averments not contained in Drack's Complaint. Specifically, in the preliminary objections, the Township avers that it requested the documents from Davidheiser and YIS/Cowden after the OOR concluded that the Township was required to retrieve all responsive documents from them and that the records are not in the Township's possession, but rather they are in the possession of Davidheiser and YIS/Cowden. (See Township's Preliminary Objections (POs), ¶¶ 9, 12).¹¹ The Township attached to the preliminary objections an email, dated October 11, 2012, from Tanner to YIS/Cowden, requesting the documents, and an e-mail response from YIS/Cowden, dated October 12, 2012, that it has nothing else to provide. The Township also filed a memorandum of law in support of its position, to which it attached the e-mail correspondence referenced above and additional emails among the parties dated subsequent to the OOR's final determination of October 18, 2012. The trial court improperly...