Hous. Auth. of Pittsburgh v. Van Osdol

• Decision Date: 24 April 2012
• Parties: The HOUSING AUTHORITY OF the CITY OF PITTSBURGH, Appellant v. Paul VAN OSDOL and WTAE–TV.
• Court: Pennsylvania Commonwealth Court

40 A.3d 209

The HOUSING AUTHORITY OF the CITY OF PITTSBURGH, Appellant

v.Paul VAN OSDOL and WTAE–TV.

Commonwealth Court of Pennsylvania.

Argued Nov. 14, 2011.Decided March 8, 2012.Reargument Denied April 24, 2012.

Alice B. Mitinger, Pittsburgh, for appellant.

Stephen H. Yuhan, New York, NY, for appellees.

BEFORE: LEADBETTER, President Judge, and SIMPSON, Judge, and McCULLOUGH, Judge.OPINION BY President Judge LEADBETTER.¹

The Housing Authority of the City of Pittsburgh (Authority) appeals from the order of the Court of Common Pleas of Allegheny County dismissing its statutory appeal from the determination of the Office of Open Records (OOR) that it must provide certain records to Paul Van Osdol (Van Osdol), a reporter for WTAE–TV. The court concluded that it lacked subject-matter jurisdiction to consider the Authority's appeal because the Authority named only OOR as a “defendant” in the caption and failed to join Van Osdol as an indispensable party in the appeal. The court further concluded that even if there were no procedural defects, the information requested by Van Osdol was not exempt from public access under Section 708(b) of the Right–to–Know Law (Law), Act of February 14, 2008, P.L. 6, 65 P.S. § 67.708(b).

In this appeal, we are asked to decide: (1) whether the Authority's designation of OOR as an appellee and failure to join Van Osdol and/or WTAE–TV (collectively, Van Osdol) in the appeal deprived the trial court of subject-matter jurisdiction; (2) if not, whether the information requested by Van Osdol is exempt from disclosure under Section 708(b) of the Law; and, (3) whether the Authority is precluded from relying on additional reasons for denying Van Osdol's request due to its failure to include them in its written decision.

I.

The record reveals the following relevant facts. On July 20, 2010, Van Osdol asked the Authority to provide “the addresses and owner names for all Section 8 properties administered by the ... Authority.” Reproduced Record (R.R.) at 4a. The “Section 8 Program,” also known as the Housing Choice Voucher Program, provides rental assistance to low-income families to help them “in obtaining a decent place to live” and to “promot[e] economically mixed housing.” Section 8(a) of the Housing and Community Development Act of 1974, 42 U.S.C. § 1437f(a). Under the Section 8 Program, which is funded by the federal government and administered by local public housing authorities, tenants sign a lease and pay a portion of their income toward rent, and the remainder of the rent is paid by the public housing authorities. 42 U.S.C. § 1437f( o ).

The Authority denied Van Osdol's request, stating that the requested information was exempt from public access under Section 708(b)(6)(i)(C) of the Law (“[t]he home address of a law enforcement officer or judge”); Section 708(b)(28)(i) and (ii)(A) (a record or information “identifying an individual who applies for or receives social services” ² or “the type of social services received by an individual”); and Section 708(b)(30) (“[a] record identifying the name, home address or date of birth of a child 17 years of age or younger”).

Van Osdol appealed the Authority's denial to OOR, alleging that he requested disclosure of only the addresses of Section 8 properties and the names of such property owners, not housing subsidy recipients or children, and that the Allegheny County Housing Authority had previously disclosed the identical information requested by him. The Authority responded that disclosure of Section 8 property addresses would identify over 6800 households participating in the Section 8 Program and that disclosure of names of Section 8 landlords would enable Van Osdol to cull the County real estate records to identify the households receiving housing assistance. Neither party requested a hearing.

In a final determination mailed on September 22, 2010, OOR's appeals officer directed the Authority to provide the requested information to Van Osdol within thirty days. She concluded that the information did not fall within the exemption under Section 708(b)(28) of the Law, stating:

[T]he Request seeks the names of owners of section 8 properties and the property addresses, not the name of the tenant. The name of the landlord or the address of a section 8 eligible property does not, by itself, identify an individual who receives social services. Rather, as admitted by the Authority a second step, or more, must be taken to identify the tenant who is the recipient of social services.

Appeals Officer's Decision at 4; R.R. at 13a (emphasis in original).

After OOR denied a petition for reconsideration, the Authority filed a “notice of appeal/petition for review” with the trial court designating OOR as an appellee in the caption and also filed a certificate of service, stating that the appeal form was served upon all parties. After the trial court scheduled a status conference, OOR advised the court that it would not file a brief nor appear for argument. Van Osdol also did not attend the status conference. The court thereafter permitted the Neighborhood Legal Services Association and The Fair Housing Partnership of Greater Pittsburgh, a nonprofit organization promoting equal housing opportunities, to file an amicus curiae brief in support of the Authority's appeal. The court also permitted Van Osdol and/or WTAE–TV to seek either intervention or an amicus curiae status and to file a brief within thirty days. Counsel for Van Osdol and WTAE–TV subsequently filed an amici curiae brief and an “affirmation” with numerous exhibits attached thereto.

The trial court dismissed the Authority's appeal, concluding that it lacked subject-matter jurisdiction because the Authority improperly named OOR as a “Defendant in [the] appeal.” Trial Court's April 6, 2011 Findings of Fact and Order at 1. The trial court further concluded that the proper “Defendants” were Van Osdol and WTAE–TV, but that they could not be joined because “the Statute of Limitations for filing an appeal from the OOR's final determination had run.” Id. at 2. The court determined that the Authority's failure to join them deprived it of subject-matter jurisdiction. The trial court nonetheless considered the merits of the appeal and determined that the Authority failed to establish that the requested information was exempt from public access under Section 708(b)(28)(i) and (ii)(A) (information identifying individuals applying for or receiving social services and the type of social services received). As to the exemptions under Sections 708(b)(30) (the name, home address or date of birth of a child 17 years or younger) and 708(b)(6)(i)(C) (the home address of a law enforcement officer or judge who may own or reside at Section 8 properties), the court stated that the Authority could redact such information from the requested records.³ Finally, the court concluded that the Authority waived its argument that the requested information was exempt under Section 708(b)(1)(ii) (the reasonable likelihood of a substantial and demonstrable risk of physical harm to or personal security of an individual) due to its failure to include it in the written decision. The Authority's appeal to this Court followed.⁴

II.

The Authority first challenges the trial court's conclusion that it lacked subject-matter jurisdiction to hear and decide the statutory appeal.⁵ The Authority maintains that in the absence of local rules governing a statutory appeal from OOR's decision, OOR was a proper appellee. In support, the Authority cites Rule 1513(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1513(a), which provides that “unless the government unit is disinterested, the government unit and no one else shall be named as the respondent.” ⁶

The trial court concluded that it did not have jurisdiction over the appeal, relying on East Stroudsburg University Foundation v. Office of Open Records, 995 A.2d 496 (Pa.Cmwlth.2010), appeal denied, ––– Pa. ––––, 20 A.3d 490 (2011), in which the Court quashed a brief filed by OOR named as the sole respondent in an appeal from OOR's final determination. The Court concluded that OOR performing only an adjudicatory function lacked standing to defend its decision on appeal. The Court considered the merits of the appeal, and reversed in part and affirmed in part OOR's determination.

In relying on East Stroudsburg University Foundation, the trial court failed to recognize the distinction between jurisdiction and standing. The concept of jurisdiction “has its roots in territorial principles and the idea of sovereignty” and “relates to a court's power to hear and decide a case.” Commonwealth v. Eichinger, 591 Pa. 1, 16, 915 A.2d 1122, 1132 (2007). The issue of subject-matter jurisdiction cannot be waived and may be raised at any time by the parties or by the court sua sponte. Daly v. Darby Twp. Sch. Dist., 434 Pa. 286, 252 A.2d 638 (1969); Tracy v. Unemployment Comp. Bd. of Review, 23 A.3d 612 (Pa.Cmwlth.2011).⁷ The core concept of standing, on the other hand, “is that a person who is not adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved’ thereby” and, therefore, may not “obtain a judicial resolution of his [or her] challenge.” Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975). Standing is a non-jurisdictional and waivable issue. In re Condemnation by Urban Redev. Auth. of Pittsburgh, 590 Pa. 431, 913 A.2d 178 (2006); Beers v. Unemployment Comp. Bd. of Review, 534 Pa. 605, 633 A.2d 1158 (1993).

The mere fact that OOR, named as an appellee, was not an “aggrieved” party did not deprive the court of its power to decide the Authority's appeal. Section 1302(a) of the Law, 65 P.S. § 67.1302(a), provides in relevant part:

Within 30 days of the mailing date of the final determination of the appeals officer relating to a decision of a local agency ⁸ ... or of the date a request for access is deemed...