Lamolinara v. Barger

• Citation: 373 A.2d 788,30 Pa.Cmwlth. 307
• Parties: Edward F. LAMOLINARA, Appellant, v. Colonel James D. BARGER, Commissioner of Pennsylvania State Police, and the Pennsylvania State Police.
• Decision Date: 25 May 1977
• Court: Pennsylvania Commonwealth Court

Page 788

373 A.2d 788

30 Pa.Cmwlth. 307

Edward F. LAMOLINARA, Appellant, v. Colonel James D. BARGER, Commissioner of Pennsylvania State

Police, and the Pennsylvania State Police.

Commonwealth Court of Pennsylvania.

Argued March 10, 1977.

Decided May 25, 1977.

Alvin B. Lewis, Jeffrey A. Keiter,Lewis, Brubaker, Christianson & Brightbill, Palmyra, William E. Schadler, Lebanon, for appellant.

Glenn F. Gilman, Deputy Atty. Gen., Dept. of Justice, Harrisburg, for appellees.

Before CRUMLISH, Jr., KRAMER and ROGERS, JJ.

KRAMER, Judge.

This case comes before us by way of a Petition for Review of certain actions taken by the Commissioner of the Pennsylvania State Police. Because there were no official proceedings below and the entire record consists of a single letter from the State Police to the petitioner, Edward F. Lamolinara, we shall set forth as 'facts' only those events and matters upon which the briefs of the parties are in agreement.

Lamolinara was a member of The Pennsylvania State Police from September of 1965 until February 9, 1967. On February 9, 1967, Lamolinara's active employment was ended. The exact nature of this 'termination' and the reasons behind it are matters in dispute between the parties and lie at the heart of the present controversy, which appears to be only the latest skirmish in a continuing legal struggle between Lamolinara and the State Police. Simply stated, Lamolinara desires to examine his personnel file to determine the reasons for his release from his duties as an officer. He contends that the right to inspect his employment records arises under the provisions of what is popularly known as the 'Right-to-Know Law.' ¹ We agree.

The narrow issue is whether or not Lamolinara's personnel records constitute a 'public record' under the Right-to-Know Law. The Right-to-Know Law defines a public record in Section 1 of the Act, 65 P.S. § 66.1(2), as follows:

'(2) 'Public Record.' Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and Any 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: Provided, That the term 'public records' shall not mean 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, except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person's reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act.' (Emphasis added.)

Respondents do not contend that Lamolinara's personnel records fall within any of the listed exceptions to the definition of 'public record.' They simply contend that personnel records are not 'public records' under the Right-to-Know Law. For authority, they rely exclusively on this Court's opinion in West Shore School District v. Homick, 23 Pa.Cmwlth. 615, 353 A.2d 93 (1976). In West Shore this Court denied a teacher's request to examine the contents of his personnel file upon concluding that those contents were not a 'public record' as they did not '(1) constitute a minute, order or decision of the Board or (2) fix any rights, privileges, immunities, duties or obligations of the teacher.' 23 Pa.Cmwlth. at 619, 353 A.2d at 95. The crucial factor underlying that conclusion was the fact that the teacher did not allege that the records would reflect any action by the School Board that affected any of his personal or property rights, privileges, immunities, duties or obligations. The teacher was merely concerned that the records may have contained information relevant to some future decision or action by the Board. Judge Mencer's opinion noted pertinently:

'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.' 23 Pa.Cmwlth. at 619, 353 A.2d at 95.

The present case is clearly distinguishable. Here, the petitioner was removed from his position as a state police officer by an action of the Commissioner's office. Obviously, this removal was the result of a 'decision.' Cf. Fatscher v. Springfield School District, --- Pa.Cmwlth. ---, 367 A.2d 1130 (1976) (suspension of a teacher held to be a 'decision' affecting personal or property rights within the meaning of Section 2 of the Local Agency Law ²). We must now determine whether this decision was one 'fixing the personal or property rights, privileges, immunities, duties or obligations' of Lamolinara.

First, we do not read the term 'fixing' to require the affirmative establishment or creation of rights, privileges, immunities, duties or obligations. Although such a narrow construction would be quite possible, we 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 with affect them.

Noting that the very reason for the present action is Lamolinara's continuing inability to discover the nature of his removal from duty and the reasons behind it, we do not believe it necessary to know these beforehand in order to determine that certain of his property rights were affected by the decision to remove him. Under the law in effect on February 9, 1967, the date of his last day of duty, Lamolinara could not be dismissed or refused reenlistment except by conviction on formal charges by a Board of Court-Martial. Section 711(b) of the Administrative Code, ...