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HomeMy WebLinkAbout12-6207 PA. S"PATE ASSOCIATION OF TOWNSHIP SUPERVISORS, Petitioner vs. PENNSYLVANIA OFFICE OF OPEN RECORDS AND WALTER BRASCH, Respondents IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2012 - 6207 CIVIL ORDER AND NOW, this ~ ~~ day of October, 2012, the Prothonotary is directed to file of record the attached letter from the Pennsylvania Office of Open Records. BY THE COURT, ___ __ Kevin .Hess, P. J. ,/ Scott E. Coburn, Esquire ~~ For the Petitioner / J. Chadwick Schnee, Esquire For Respondent Pa. Office of Open Records f Walter Branch 2460 Second Street ~ ~ ~~~~~ ,. ;_ :' --+~ Bloomsburg, PA 17815 -,-; Respondent /~ .._; ~ lMlt r rPl,~ /©// 7~/ a_ ~~~' ` ~. ~ pennsylvania OFFICE OF OPEN RECORDS October 16, 2012 Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle PA 17013 EZE: Pa. State Association of Township Supervisors v. Pennsylvania Office of Open Records and Walter Brasch 2012-6207 Office of Open Records No. 2012-25948 Dear Prothonotary: The Office of Open Records (OOR) is listed as an Appellee in the above captioned appeal. The OOR has the discretion under the Right-to-Know Law, 65 P.S. § 1 ~03(a), to determine whether it will respond in actions to review its final determinations. In addition, it has been previously held that the OOR does not have party standing in appeals from final orders it issues, E. Stroudsburg Univ. Found. v. Office of Open Recorcz's~. 995 A.2d 496, 507 (Pa. Commw. Ct. 2010). On behalf of the Office of Open Records, I am notifying the Court that the OOR rests upon its Final Determination and will not be tiling a brief or appearing for argument in the above listed appeal. Sincerely,.- -- ~ ~~.-- ~~ . ,,'`'` _ J. Ch~.dw-ick Schnee, Esquire . -.~ ~,. _ _-~ cc: File ~ ~ Scott E. Coburn, Esquire ~.- Commonwealth Keystone Building ~ 400 North Street, 4th Ftocr ~ Harrisburg, PA i~izo-0225 ~ ~i7.346.ggo3 ~ F 717.4255343 i http:/!openrecords.state.pa.us Scott E. Coburn Attorney ID No. 89841 4855 Woodland Drive Enola, PA 17025 (717) 763-0930 -telephone (717) 763-9732 -facsimile Counsel for Petitioner, Pennsylvania State Association of Township Supervisors PENNSYLVANIA STATE IN THE COURT OF COMMON PLEAS OF ASSOCIATION OF :CUMBERLAND COUNTY, PENNSYLVANIA TOWNSHIP SUPERVISORS, Petitioner No. 2012-6207 CIVIL ACTION-LAW v. . PENNSYLVANIA OFFICE OF :APPEAL FROM FINAL DETERMINATION OF OPEN RECORDS and :PENNSYLVANIA OFFICE OF OPEN RECORDS WALTER BRASCH, Respondents ORDER AND NOW, this ~ 8 ~ day of ~~ b-e.r' , 2012, upon consideration of the letter request of the Pennsylvania State Association of Township Supervisors dated October 17, 2012, it is hereby ordered that: 1. The p~erties and interested third-parties are permitted to file briefs in support of their respective positions on or before November 5, 2012. 2. Notice of the entry of this Order shall be provided to all parties by the Petitioner. s '' ~a ~+~r ~~~. / Pp S,~f-~ l4sso~. o~ Tom. ~~p~~usors !el•GL BY THE COURT: ;_ ~~ ~~ 1~ ~ ~ _~:~~ ~_ ~. PSATS r~o~ ~~°~~ o ti 4 F Z a s"~Nae n+ogtae October 17, 2012 VIA HAND DELIVERY Honorable Kevin A. Hess President Judge Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013 Re: Pennsylvania State Association of Township Supervisors v. Pennsylvania Office of Open Records, et al. - No. 2012-6207 Dear Judge Hess: I am counsel for the Pennsylvania State Association of Township Supervisors in connection with the above referenced action, which is scheduled for ~~rgument before Your Honor on November 8, 2012 at 9:30. I write to request that Your Honor accept briefs from the parties and interested third- parties in advance of the argument. Given that any Answers to the Petition for Review are due on or before October 29, 2012, I request that the Court permit the filing of such briefs on or before November 5, 2012. For the Court's convenience, I have enclosed a proposed form of Order and stamped envelopes addressed to all parties. I am available to answer any questions that Your Honor may have regarding this request. Thank you. Respectfully, C~ ~ ~ ~~~-~_ Scott E. Coburn. Enclosure ~ ~~ cc: Benjamin Lorah, Esquire (w/ encl., via email) -" ~ ~-;' ~~ Walter Brasch (w/ encl., via email) :Michael D. Fabius, Esquire (w/ encl., via email) :Emily J. Leader, Esquire (w/ encl., via email) ~=~- ~- 1~5~ V'v x ~'~I,~nd I ive 1 Ei ~Lt P/~. C_'S I ; 1 I~,.,_ ~~~ __ - _ _ __ PSA-~S 1 Pennsylvania Tow~~ship News 1 TcIeE: ~< <~~_ ( ~ 1 F > i ~ __ Truste~s Inwrance Fund 1 Unemployment Compensa[ion Group Trust 1 ~~ ~r~ ~~ ~~_) ;f3 ' (8 ~ ' ~ ~ ~~`~ ~~BENNLA'NFIRM ~ ~ ~ ~~' N ~s ~A- T ~ ~ ---i •7 f-r U ~ ~ C% ` 1 ~ _ _ ~ ~ . _T A ~`: `A ~; r...a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Pennsylvania State Association No.. 2012-6207 of Township Supervisors, Petitioner v. Civil Action-Law Pennsylvania Office of Open Appeal from Final Determination i Records and of Pennsylvania Office of Open 'Walter Brasch, Records Respondents ANSWER WITH NEW MATTER OF RESPONDENT WALTER BRASCH AND NOW, TO WIT, this Z~~ day of October, 2012, comes Walter Brasch (the '`Respondent"), by and through his counsel, the BENNLAWFIRM, and submits the within Answer with New Matter, of which the following is a statement: l . Admitted in part and denied in part. It is admitted only that the Petition of the 103-107 E. MARKET ST. ~'; i P.Q. BOX 5185 YORK, PA 17405-5185 Pennsylvania State Association of Township Supervisors ("PSATS") arises out of a Final Determination issued by the Respondent, Pennsylvania Office of Open Records ("OOR"), dated September 4, 2012, granting the appeal of answering Respondent and concluding that PSATS is a "local agency'° subject to the public disclosure requirements of the Pennsylvania Right-to-Know Law (`RTKL"). This 1 n ~BENNLAWFIRM 103-107 E. MARKET ST. PO. BOX 5185 YORK, PA 17405-5185 Court should deny the Petition of PSATS because PSATS falls within the RTKL's definition of "local agency" and because PSATS failed to overcome the presumption contained in the RTKL ghat the requested records were public records. The decision of the OOR that "PSATS is created by local governments pursuant to statutory authority and, thereof, is a `similar governmental agency' as contemplated in the definition of local agency under the RTKL" is a proper decision, does not constitute an error of law and should be affirmed by this Court. 2. Admitted on information and belief. 3. Admitted on information and belief. 4. Admitted on information and belief. 5. Admitted. 6. It is admitted that Respondent submitted four separate RTKL requests (the "Requests") to PSATS on ar about July 5, 2012 and July 10, 2012. See Exhibit "A" to Petition for Review of PSATS. 7. It is admitted that Respondent sought production of the documents listed, as specifically limited and defined in the Requests. For example, the Request dated July 5, 2012 sought "resolutions submitted at any time in May, June or July of 2012 relating to PA Act 13 of 2102 (aka HB-1950)"; the July l 0, 2012. Request for income documentation was limited 1:0 "calendar year 2011, or of by fiscal year 2011-2012"; and the July 10, 2012 Request seeking communications between PSATS and the Governor's Office was limited to the period ``between November 1, 2 2011 and March 1, 2012 relating to A_ct 13 of 2012 or HB 1950". The EZe~quests BENNLAJVFIRM attached as Exhibit "A" to the Petition of PSATS speak for themselves. 8. Admitted. 9. It is admitted that Respondent submitted a timely appeal to the OOR on .July 19, 2012. 10. It is admitted only that Respondent stated the following in support of his appeal to the OOR: It is my contention that since EVERY active member of PSATS is a publically-elected government official that, within scope of the state's Right to Know I/aw, almost all business conducted by these officials is bound by the public's right to know. Specifically, any resolutions voted by members is public record. I further contend that since public funds are used to fund PSATS that all communication, with a few exceptions as determined by law, is included within the public right to know. In addition, any and all communications between PSATS and the office of the Governor, a public official paid for entirely by public funds, should be a matter of public record. 103-107 E. MARKET ST. P O. BOX 5185 See Exhibit "C" attached to the Petition of PSATS. The Respondent's Appeal attached as Exhibit "C" speaks for itself. 1 l .Admitted. By way of further answer and response, the Notice advised the parties that the "agency [PSATS] has the burden of overcoming the presumption that records are public records and must provide a legal and factual basis for denying access to records." The Notice attached to the Petition of PSATS as Exhibit "D" speaks for itself. 12, Admitted. By way of further answer, Respondent did not provide any supplementary materials to the OOR, but emphasizes that PSATS had. the burden of 3 YORK. PA 17405-5i 85 R BENNLA'JUFIRM 103-107 E. MARKET ST. P O. BOX 5185 YORK. PA 17405-5' 85 proof before the OOR. See Respondent's answer to paragraph 11 herein and Exhibit "D" to the Petition of PSATS. 1~. It is admitted only that PSATS provided written argument as to why it believed it was not a "Commonwealth agency" or a "local agency" as defined by the RTKL. The Supplement attached to the Petition of PSATS as Exhibit "E" speaks for itself. 14. It is admitted only that the Supplement attached to the Petition of PSATS as Exhibit "E" speaks for itself. 1:5. It is admitted only ghat the Supplement attached to the Petition of PSATS as Exhibit "E" speaks for itself. It is specifically denied that PSATS presented "significant evidence". The Final Determination of the OOR was proper, not an error of law and should be affirmed. 16. It is admitted only that the Supplement attached to the Petition of PSATS as Exhibit "E" speaks for itself. 17. Admitted. By way of further answer, the Final Determination of the OOR attached to the Petition of PSATS as Exhibit '"F" speaks for itself. 18. Admitted. By way of further answer, the Final Determination of the OOR attached to the Petition of PSATS as Exhibit "F" speaks for itself. 19. Admitted. By way of further answer, the Final Determination of the OOR attached to the Petition of PSATS as Exhibit "F" speaks for itself. 20. It is admitted only that the Final Determination of the OOR attached to the Petition of PSATS as Exhibit "F" speaks for itself. By way of further answer, see Bloss v. Northeast Behavioral Health Care Consortium, Docket No. AP 2O l 1-0059 (finding 4 ~_ ,~BENNLPWFIRM nonprofit corporation founded by four Pennsylvania counties was a local agency subject to the RTKL, where the corporation's board was almost entirely comprised of employees of the four counties); Bari v. Delaware River Waterfront Corp., Docket No. AP 2009-0891 (finding that nonprofit corporation whose leadership composition consisted of City of Philadelphia officials and mayoral appointees qualified as a local agency under the RTKL). 21. It is admitted only that the Final Determination of the OOR attached to the Petition of PSATS as Exhibit "F" speaks for itself. 22. It is admitted only that the Final Determination of the OOR attached to the Petition of PSATS as Exhibit "F" speaks for itself. By way of further answer. the Final Determination of the OOR sets forth some of the contents of the Affidavit of David ~, M. Sanko, Executive Director of PSATS, but states that "[w]hile these factors certainly weigh against PSATS's classification as a local agency, these factors cannot offset the fact that PSATS exists solely as an extension of, and to serve, township governments in the Commonwealth that are otherwise subject to the RTKL." See Exhibit "F" to Petition, p. 7. ~!3. Denied. The allegations contained in paragraph 23 of the Petition are denied as conclusions of law, to which no responsive pleading is required. Qy way of further answer, it is specifically denied that the OOR "misapplied the law or made conclusions based on assumptions not supported by facts in the record. before it." The Final Determination of the OOR attached to the Petition of PSATS as Exhibit "F" speaks for itself and should be affirmed by this Court. 103-107 E. MARKE° ST. PO. BOX 5185 5 YORK. PA 17405-5185 24. The allegations contained in paragraph 24 of the Petition are denied as conclusions ~BENN~AWFIRM of law, to which no responsive pleading is required. By way of further answer, it is admitted that the Commonwealth Court has held that on the issue of the appropriate standard of review for appeals taken from the OOR, "a reviewing court, in its appellate jurisdiction, independently reviews the OOR's orders anal may substitute its own findings of fact for that of the agency". Bowling_v_Office of Open Records, 990 A.2d 813, 818 (Pa. Commw. 2010), appeal rg anted, 609 Pa. 265, 15 A.3d 427 (2011). The Court further held on the issue of the scope of review that "a court reviewing an appeal from an OOR hearing officer is entitled to the broadest scope of review" and may review material not considered by the OOR. Bowling, 990 A.2d at 820. 25. It is admitted only that Section 1302 of the RTKL pertaining to local agencies, 65 P.S. §67.1302(a), provides that the court's decision "shall contain findings of fact and conclusions of law based upon the evidence as a whole." 65 P.S. §67.1302(a) 26. It is admitted only that the RTKL defines "public record" as: A record, INCLUDINc:J A FINANCIAL RECORD, of a. Commonwealth or Local agency t]Zat: (1) Is not exempt under section 708; (2) Is not exempt from being disclosed under any Federal or State Iaw or Regulation or judicial order or decree; or (3) Is not protected by a privilege. 103-107 E. MARKET ST. j' I' P O. BOX 5185 J YORK. PA 17405-5? 85 l 65 P.S. §67.102. 27. It is admitted only that this Court must decide whether PSATS is a ``local agency". By way of further answer, it is the position of Respondent that PSATS is a "local 6 agency'' and that the Final Determination of the OOR in this case should be ~BENNLAWFIRM 103-107 E. MARKET ST. P.O. BOX 5185 affirmed. 2~8. Admitted. 29. It is admitted only that the Final Determination of the OOR attached to the Petition of PSATS as Exhibit "F" speaks for itself. Byway of further answer. the OOR did focus on the undefined term "similar governmental entity" contained within the definition of "local agency" set forth. in 65 P.S. X67.102. "the OOR further referenced the determination of the Commonwealth Court in an unpublished Memorandum Opinion that the term "'similar governmental entity" must be construed in light of the particular terms preceding it, which include: `any local, intergovernmental, regional or municipal agency, authority, council, board, [or] commission."' Philadelphia Industrial Development Corporation v_Ali, No. 528 C.D. 2010 (Pa. Commw. 2011), citing 65 P.S. §67.102. i0. It is admitted only that the OOR cited to the Ali case, as set forth in the answer to paragraph 29 herein. The Final Determination of the OOR attached to the Petition of PSATS as Exhibit "F" speaks for itself. By way of further answer, while the Ali Court held that the Philadelphia Industrial Development Corporation ("PIDC"), a private, not-for-profit Pennsylvania Corporation formed jointly by the Philadelphia Chamber of Commerce and the City of Philadelphia, was not a ``local agency" under the RTKL, the facts of Ali are distinguishable from those of the present case and do not govern or control its outcome. The determination of what constitutes a "similar 7 YORK. PA 17405-5185 governmental entity" is fact-specific and must be made on a case-by-case basis. See Bari v. City of Philadelphia, OOR Dlct. AP 2009-0676 at p. 10. i 31. It is admitted only that the OOR cited to the Ali case, as set forth in the answer to BENNLAUVFIRM ' paragraph 29 herein. The Final Determination of the OOR attached to the Petition of ~' PSATS as Exhibit ``'F" speaks for itself. Byway of further answer, the five (5) 1 factors referenced by PSATS in paragraph 31 were supplied to the Commonwealth Court by counsel for PIDC in its brief without any citation to statute or case law and it is submitted that application of these factors do not govern or control the instant Appeal. The determination of what c-onstitutes a "similar governmental entity" is fact-specific and must be made on a case-by-case basis. See Bari v. Ci of Philadelphia, OOR Dkt. AP 2009-OEi76 at p. 10. i ~ 32. It is admitted only that the OOR concluded that "PSATS is created by local i ~ governments pursuant to statutory authority and, therefore, is a `similar governmental agency' as contemplated in the definition of local agency under the RTKL." See Exhibit "F" to Petition, p. 6. The Final Determination of the OOR ~' attached to the Petition of PSATS as Exhibit "F" speaks for itself. Respondent I' incorporates his answer to paragraph 31 herein by reference as if fully set forth. 33. It is admitted only that the Final Determination of the OOR attached to the Petition of PSATS as Exhibit "F" speaks for itself. Respondent incorporates his answer to paragraph 31 herein by reference as if fully set forth. 34. Denied. The allegations contained in paragraph 34 of the Petition are denied as '! conclusions of law, to which no responsive pleading is required. By way of further 103-107 E. MARKET ST '': P.O. BOX 5185 g YORK, PA 17405-5185 i, n- ~BENNLF;W'FIRM 103-107 E. MARKET ST. P.O. BOX 5185 answer, Respondent, on information and belief, does not believe PSATS to be a "division of a political subdivision", although Respondent has not seen the organizing documents or bylaws of PSATS. However, it is specifically denied that whether PSATS is a division of a political subdivision is determinative of the instant Appeal in any way. Respondent incorporates his answer to paragraph 31 herein by reference as if fully set forth. 35. Denied. The allegations contained in paragraph 35 of the Petition are denied as conclusions of law, to which no responsive pleading is required. By way of further answer, it is admitted that PSATS is not a "political subdivision" as that term is defined in the Pennsylvania Statutory Construction Act, 1 Pa. C.S. §1991. However, it is specifically denied that whether PSATS is a political subdivision is determinative of the instant Appeal in any way. Respondent incorporates his answer to paragraph 31 herein by reference as if fully set forth. 36. It is admitted only that the Supplement attached to the Petition of PSATS as Exhibit "E" speaks for itself. However, it is specifically denied that whether the members of PSATS "are appointed exclusively by the governing body of the creating political subdivision" is determinative of the instant Appeal in any way. Respondent incorporates his answer to paragraph 31 herein by reference as i f fully set forth. By way of further answer, the membership of PSATS consists of publically-elected and appointed governmental officials from more than 1,450 second class townships in Pennsylvania. See Exhibit "E" to Petition. Moreover, the voting membership of PSATS is limited solely to elected or appointed township officials, and each 9 YORK, PA 17405-5185 member official entitled to vote at the annual meeting of the PSA"1 S is elected by a ~BENNLP.WFIRM township. 53 P.S. §66402(d) and (e). 3'l. It is admitted only that the Final Determination of the OOR attached to the Petition of PSATS as Exhibit "F" speaks for iitself. By way of further answer, after reasonable investigation, Respondent is without knowledge or information. sufficient to admit or deny the; averments of this paragraph. However, it is admitted that the PSATS works to advance the interest of township government and to improve township government; to educate, inform and support township officials; and to strive for legislation that will better enable the members of PSATS to provide services to affected township residents. See Exhibit "E" to Petition, Sanko Affidavit. See also information about PSATS from the website of PSATS attached hereto as Exhibit "A". 38. Denied. The allegations contained i:n paragraph 38 of the Petition are denied as conclusions of law. to which no responsive pleading is required. By way of further answer, Respondent emphasizes that the determination of what constitutes a "similar governmental entity" is fact-specific and must be made on a case-by-case basis. See Bari v. City of Philadelphia, OOR Dkt. AP 2009-0676 at p. 10. Moreover, the Finder case cited by PSATS does not govern the instant Appeal. 39. Denied. The allegations contained in paragraph 39 of the Petition are denied as ~' conclusions of law, to which no responsive pleading is required. By way of further i; ii `! answer, Respondent emphasizes that the determination of what constitutes a 103-107 E. MARKET ST. ;: P O. BOX 5185 YORK.. PA 17405-5"85 ii 10 "similar governmental entity" is fact-specific and must be made on a case-by-case ~BENN~AVIFIRM basis. See Bari v. City of Philadelphia, OOR Dkt. AP 2009-0676 at p. 10. 40. It is admitted only that the documentation and record reviewed by the OOR, as well as the Final Determination of the OOR attached to the Petition of PSATS as Exhibit ~, "F" speak for themselves. By way of further answer, the SWB Yankees LLC case involved, inter alia, a stadium authority created by the Lackawanna County Board of Commissioners and a subsequent contractual arrangement whereby a private for- profit entity served as the manger of baseball operations and other entertainment activities and events at a stadium. The Pennsylvania Supreme Court. held that written concessionaire bids submitted to the manager were "records" required to be disclosed under the RTKL because the records directly related to a delegated function of government. SWB Yankees LLC v. Wintermantel, 4.5 A.3d 1.029 (Pa. 2012). Thus, the SWB Yankees LLC case concerned a contractual delegation of governmental authority to a private, for profit, joint venture management company and, as such, the facts of the case are distinguishable from the instant matter. 41. Denied. After reasonable investigation, Respondent is without knowledge or information sufficient to admit or de~~ny the averments of this paragraph and the same are, therefore, denied. Respondent further incorporates his answer to paragraph 31 herein by reference as if fully set forth. By way of further answer, the Second Class Township Code provides, in part, that the membership dues of the PSATS are legal expenses of the townships. 53 P.S. §66402(h). Moreover, while PSATS's governance changes may or may not fall. within the authority of individual 103-107 E. MARKET ST. P.O. BOX 5185 ll YORK, PA 17405-5185 ~BENNLRWFIRM voting members or the governing body of PSATS (the Executive Board) as set forth in the PSATS bylaws, which Respondent has not seen, all voting members of PSATS and all members of the Executive Board are, on information and belief, elected or appointed governmental officials in Pennsylvania Second Class townships. See 53 P.S. §66402(d), (e); Exhibit "F," to Petition. 42. Denied. Respondent incorporates his answer to paragraph 31 herein by reference as if fully set forth. 43. It is admitted only that the OOR has previously made reference to factors utilized by the Pennsylvania appellate courts to determine whether an entity is so entwined with government. that extending immunity to said entity would serve the purposes of the Political Subdivision Tort Claims Act ("PSTCA"). See, e.g., Snead v. Society For the Prevention of Cruelty to Animals of Penns ly_v_ania, 985 A.2d 909, 91.4 (Pa. 2009). By way of further answer, thf; cited cases do not govern the outcome of this matter. For example, Bowman involved a volunteer ambulance association, and the OOR had previously cited to a Commonwealth Court case denying PSTCA immunity to a volunteer ambulance association. See Scrima v. Swissvale Area Emergency Service, 599 A.2d 301 (Pa. Commw. 1991). The Donahue case is likewise not controlling. In addition to reviewing the PSTCA factors, the OOR in Donahue looked to, inter alia, the composition of the respondent entity's board, and noted that where the courts had reviewed cases involving governing boards comprised of a majority of non pubPic officials, control of the organizations in 103-107 E. MARKET ST. ~~~~ P.O. BOX 5185 YORK. PA 17405-5185 question were deemed private. In this case, unlike the cases cited in Donahue, l2 _~ Rcsp~ndent believes that all members of the governing Executive Board of PSATS are elected or appointed governmental, public officials. See information on composition of PSATS Executive Board from PSATS website attached hereto as ~BENNLAWFIRM f Exhibit "B".. 44. This is not a paragraph that requires a response. By way of further answer, the applicable test is set forth in Snead v Society For the Prevention of Cruelty to Animals of Pennsylvania, 985 A.2d 909, 914 (Pa. 2009). i 45. Denied. The allegations contained in paragraph 45 of the Petition. are denied as conclusions of law, to which no responsive pleading is required. 46. Denied. The allegations contained in paragraph 46 of the Petition are denied as conclusions of law, to which no responsive pleading is required. By way of further answer, the fact that an entity receives government funds is only one factor that a court or administrative body should consider when determining the applicability of the RTKL to such entity. While the i~OR and our courts have generally held that the receipt of public funding, alone, without consideration of other factors, would not ~~~ convert a government funded recipient into a public or governmental entity, government funding is certainly a relevant factor in the determination of local agency status under the RTKL. See Bloss v. Northeast Behavioral Health Care Consortium, Docket No. AP 2011-0059. 47. Denied. The allegations contained in paragraph 47 of the Petition are denied as i ` conclusions of law, to which no responsive pleading is required. The holding of the j' 103-107 E. MARKET ST. !!, P.O. BOX 5185 13 YORK. PA 17405-5185 OOR in this case was proper, supported by the contents of the record and applicable statutory law and case law, and should be affirmed. 48. Denied. This Court should deny PSATS's Petition and affirm the Final ,~IIBEHr+~,~wF~RM ~ Determination of the OOR issued in this case on September 4, 2012. ~I WHEREFORE, Respondent, Walter Brasch, respectfully requests that this Court issue an order denying the Petition of PSATS and affirming the Final Determination of the OOR issued. in this case on September 4, 2012, ordering PSATS to provide all ,, responsive records within thirty (30) days of the date of the Court's order, and granting such other and further relief as this Court deems just and proper. i ~ NEW MATTER i 49. Paragraphs 1-48 are incorporated herein by reference as if fully set forth. i I 50. The formation of PSATS is authorized by the Pennsylvania Legislature within the ~! Second Class Township Code. 53 P.S. §66402. PSATS is, therefore, a creation of the Pennsylvania Legislature, itself a body of publically elected officials. 51. The voting membership of PSATS is limited solely to elected or appointed township ~' officials, and each member entitled t:o vote at the annual meeting of the PSATS is y `~ elected by a township. 53 ]'.S. §66402(d) and (e). ~~2. All of the members of PSATS are elected or appointed governmental officials. _`•3. PSATS receives public funding in the form of membership dues paid by second class townships, and such dues are legal expenses of the townships. S3 P.S. §66402(h). 103-107 E. MARKET ST. PO. BOX 5185 14 YORK, PA 17405-5? 85 ~, - 54. While Respondent does not know 2011 and 2012 income or budgetary figures for ~BENNLPWFIRM PSATS, Respondent believes that most if not all of its revenue comes directly or indirectly from public sources such as government grants and membership dues. For example, PSATS reported to the IRS that in calendar year 2010 PSATS received nearly 4 million dollars in "Government grants (contributions)'', and more than 1 million dollars in membership dues. 5:5. While PSATS argues that its "sole source of income is not derived from political subdivisions", Respondent believes that PSATS operates exclusively {oa• nearly exclusively) on funds derived directly and/or indirectly from public sources. 56. The mission and purpose of PSATS is a purely public purpose, including, without limitation, protecting and promoting township government and educating, informing and supporting governmental township officials. As such, PSATS assists the various second class Pennsylvania townships in serving the citizenry living in those townships. 57. For example, PSATS reported to the IRS that in calendar year 2010 it incurred $2,427,816 for expenses "in fulfilling various contracts and programs for the benefit of townships as required by the Commonwealth of Pennsylvania" and incurred an additional $2,579,986 in expenses "for the townships in the development and management of programs, meetings., conventions, publications and other township r. services". Clearly, PSATS is closely entwined with Pennsylvania township i ii government and the public purposes served by township government officials. 103-107 E. MARKET ST. R.O. BOX 5185 15 YORK. PA 17405-5185 58. PSATS serves as an extension of township government and strives to preserve and strengthen government. 59. The governing body of PSATS, its E:~cecutive Board, is comprised solely of elected ~BENNLAWFIRM or appointed governmental officials. 60. PSATS is a "local agency" as that term is defined by the RTKL, and, as such, must provide all public records in accordance with the RTKL. 61. Because PSATS is a "local agency", all records in the possession of PSATS are presumed to be public records. ~~ 62. PSATS has not cited any exemption applicable to any of the requested records i under 65 P.S. §67.708. 63. PSATS has not cited any privilege applicable to any of the requested records. See 65 ,~ P.S. §67.305(a)(2). 64. PSATS has not argued that. any of the requested records are exempt from disclosure under any Federal or State law or regulation or judicial order or decree. See 65 P.S. ~67.305(a)(3). 65. Because the initial denial letter of PSATS, dated July 13, 2012, only listed one i, ground for its denial, that "PSATS is not an `agency,' as that teen is defined in the Right-to-Know Law", PSATS has waived all other grounds for denying '~ Respondent's access to the requested records. Signature Information Solutions, ~' ii LLC v. Aston Township, 995 A.2d > 10 (Pa. Commw. 2010}. ~~ WHEREFORE, Respondent, Walter Brasch, respectfully requests that this Court issue an order denying the Petition of PSATS and affirming the Final Determination of 103-107 E. MARKE? ST. '~ P.O. BOX 5185 '1 i~ 16 YORK. PA 17405-5185 the OOR issued in this case on September 4, 2012, ordering PSATS to provide all ~BENN~AWFIRM responsive records within thirty (30) days of the date of the Court's order. and granting such other and further relief as this Court: deems just and proper. Respectfully submitted, BENNLA'WFIRM ~,,~ _ ~, _K _~ ~-' By: _ - Niles S. Benn, Esq Attorney LD. #16284 Terence J. Barna, Esquire Attorney LD. #74410 103 E. Market Street I'.O. Box S 185 York, PA 17405-5185 (717)852-7020 Fax: (717) 852-8797 nbenn cr,bennlawfirm.com tbarna bennlawfirm.com Attorneys for Defendants 103-107 E. MARKET ST. P O. BOX 5185 YORK. PA 17405-5?85 i i7 VERIFICATION I, Walter Brasch, verify that the statements contained in the foregoing Answer to Petition for Review are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. ~:-:.5. § 4904 relating to unsworn falsification to authorities. i a ter Brasch - ~ ~ ..,. .~ ~ x. ~ a ~,~, ~~' .~ , ~ . -a ~J, a~ ~? ~ ~; _, '~~~ J L~ E~ .+ ..«.,~. - ~,*. rr,t~a ~~~.r~rssitw~f The Pennsylvania State Association of 'Towns hip Supervisors has been serving townships of the second class since 1921, when Gov. ~i'illiam Sproul signed Act 189 to create PSATS. !Headquartered in Enola, Cumberland County, the Association has more than 40 full-time employees and operates under the direction of a 12-member executive board, elected each spring by the membership. In addition, the Association has 12 standing committees that oversee specific aspects of its operations. The Pennsylvania State Associatioin of Township Supervisors is committed to preserving and strengthening township (:11ck~~i~trnJrele~telcuru government by lobbying state ;and federal lawmakers and educating and informing its members through workshops, an urea; annual conference and trade slnow, and award-winning publications. jxruritJ~ir-meeaher~li yi.iu PSATS'services includkr; pc~7r • Lobbying, Legislative Research and Analysis, and Policy Development -PSATS works with state and federal lawmakers to address issues that matter mint to townships, analyzes legislation, and devebps policy to advance the Association's objectives. The Association also has a Grassroots Lobbying Network, an organized statewide group o1 bcal leaders who are on a mission to unify and amplify the township nxssage. Also, PSATS keeps township officials informed about new laws and bills through a monthh~ newsletter, the monthh Pennsylvania Townshp News magazine, this website, and regular postings on Facebook and Twitter. • "framing -PSATS afters and administers a full range of training programs for elected and appointed public officials. Topics range from transportation, financial manage;mern, and land use management to personnel issues, build'mg code enforcement, and sewage enforcement. • Communications -- PSATS is an information clearinghouse for its members and provides them with a full range of newsletters, brochures, and other publicatk~ns, including the award-winning monthly magazine, the Pennsylvania 7ownsh~p News. • Insurance -PSATS offers an array of insurance programs to meet the needs o1 townships and their empbyees, including medical, dental, life, disability, workers' compensation, and property and casuahy insurance. It also offers pension, retiremern savings, and unempbyment compensation programs. • Professional Associations -- -PSATS manages four professional associatio~~s, the Townstvp Solicitors Association, the Township Engineers Association, the Township Planning Association, and the Township Emergency Managemern Association, which offer specialized services for the consnhants and volunteers who help township officials meet their growing responsbilities. PSATS: ~~ ~3enefits of Mc;nlbcrslup 4855 Woodland Drive ~ Enola, 1'A 17025 ~ Phone: (717)763-0930 ~ Fax: (717)763-9732 Powered by Tlxr-Triscari~up P7S on ~acebook? • ! i : * " •, i • ••t 'T'here are 1,455 townships in the commonwealth, which comprise 95 percent of Pennsyhania's land area and are home to more than 5.5 million citizens -- 44 percent of the state's population. Pennsylvania's townships are very diverse, ranging from rural communities with fewer than 200 residents to suburban communities of mare than 60,000 residents. Elected by their fellow residents to carry out the day-to-day responsibilities of improving their community, township supervisors reflect the values of the people they serve. By design, the township's governmental structure i, flewble, allowing supervisors to determu:e what services best meet the needs ottheir constituents. The board of supervisors is directly accessible to residents with no layers of bureaucracy in between. A board of three or five supervisor,. ~lected at large for six-year terms, governs each township. As the township's legislative body, this board enacts ordinances, adopts budgets, and levies taxes.liecause there is no separately faected executive, except in some home nrle townships, the supervisotrs also perform such functions as enforcing ordinances. approving expenditures, and hiring employees. Townships are the oldest loon of organizrd government in the United States. 'Years ago, township supervisors were mainly in charge of maintaining roads and bridges. Today, however, the role of the township supervisor has e ~panded to include public safety, land use, and environmental protection, among many other responsibilities. And as ;tale and federal mandates increase, these public servants assnire an ever greater role in meeting these demands while providing needed services and facilities for their residents Townships and cooperation The misconception exists that township officials are reluctant to look beyond their borders, but that's simply not true. Intergovernmental cooperation is thriving in Pennsylvania, a fact revealed in a 2009 PSA'TS survey, which (round that 83 percent of responding :ownships are participating in cooperative initiatives with other govemrnents Thew efforts save time and money, which are bolt scarce commodities in townships. According to the survey, townships are working together on everything from providing ambulance services to zoning. A[ [he top of the list, however, are equipment sharing, joint purchasing, road maintenance, and lire protection. Cooperation isn't something that townships do from time to time. lnstead, it has become a normal business practice across the state in communities of all sizes. The survey results demonstrate [hat township officials xnd staff are creative when it comes to delivering the services their residents want and need on increasingly tight budgets. Township officials know what works best for their communities and are taking the initiative and working with their neighbors as they look for ways to improve services and reduce cosh 4855 Woodland Drive Er>ula, F'A 17025 J Phone: (717)763-0930 ~ Fax: (717)763-9732 Powered by T]~c_Ixiscat:i-~cwp w ~~ ~ ^ ' ~~'~ ~ ~/ • • V J ~ n, W rr ~~ r~, ~ ~, ~ ~+/ J T a ~--+ ~ a Q .. -~~ ~~ ~ V ~ ~ ~ _ _ 7 U~ N o ~ m m l7 a n ,A ~i -n' C ut C n. Q `) ~ ~ _ cn .c d u o; Y ~ m d o z J .~ w° g u o C - N ~ C c ~ o o~ y u rn .o ci +' ° E.. 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I he board is responsible: for markcging the affairs of the Association. Members meet frequently throughout the year to conduct business and plan new projects that will benefit member townships. F.lecticros are lreld each year during PSATS' Annual Educational Conference. .. . ~, ~.. ,~. ,~y^ 4855 Woodland Drive ~ Enola, PA 17025 ~ Phone: (717)763-0930 ~ Fax: (717)763-'732 Powered by T1~TriscaxiCsraup Lester O. Houck Tim Horner PSATS President Chairman, PSATS Executive Ffoard PSATS First Vice Presiderrt Executive Board Officers President: Lester O. I buck, Salisbury Township, Lancaster County First Vice President: Tim Hunter, Chapman Township, Clinton County (Chairman) Second Vice President: Skirl Barnhart, Morgan Township, Greene County Secretary-Treasurer: William B. Hawk, Lower Paxton Township.. Dauphin County (Vice Chairman) Assistant Secretary='Treasurer: Brian McGrath, Millcreek Township, Erie County Immediate Past President: John A. Haiku, West Bradford Township, Chester County Executive Commitl:ee Andrew J. Boni, Perry'Township, Fayette County, 2012-2015 Ronald C. Fault, Lberty Township, Mercer County, 2010-2013 Michael Keller, Fox Township, E:)k County, 2010-2013 Michael J. Dennehy. Jr., Pine Township, Allegherry County, 2011-2014 :Marvin G. Meteer, Wyalusing Township, Bradford County, 2011.-2014 Anna Swailes, Metal Township, Franklyn County, 2012-2015 John "Jay" Wilkes Jr., ]ackson Township, Luzerne County, 2011-2014 Board of Trustees [nsurance Fund Edward C. Goodhart, III William Groves Jack ~ti'alter, Chair ~~ i BENNLP.'JVFIRM CERTIFICATE OF SERVICE I, 'Terence J. Barna, Esquire, hereby certify that on this Z ~ day of October, 2012, I served a true and correct copy of the foregoing ".Answer with New Matter" to the following individual(s) by United States regular mail, postage prepaid: Scott E. Coburn, Esquire 4855 Woodland Drive Enola, P.A 17025 Kespectfully submitted, BENNLAWFIRM ;- - Terence J. B rna, uire Attorney LD. #74410 103 E. Market Street P.O. Box 5185 York, PA 17405-5185 (717) 852-7020 103-107 E. MARKET Sl P.O. BOX 5185 YORK. PA 17405-518.5 1g Scott E. Coburn Attorney ID No. 89$41 4855 Woodland Drive Enola, PA 17025 (717) 763-0930 -telephone (717) 763-9732 -facsimile Counsel for Petitioner, Pennsylvania State Association of Township Supervisors 212 I~OV ~ 9 P?9 2~ 25 CUMt3ERL~~tdD CUl1N~1"t~ FENNSYLVAN{A PENNSYLVANIA STATE ASSOCIATION OF TOWNSHIP SUPERVISORS, Petitioner v. PENNSYLVANIA OFFICE OF OPEN RECORDS and WALTER BRASCH, Respondents IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2012-6207 CIVIL ACTION-LAW APPEAL FROM FINAL DETERMINATION OF PENNSYLVANIA OFFICE OF OPEN RECORDS PETITIONER PENNSYLVANIA STATE ASSOCIATION OF TOWNSHIP SUPERVISORS' REPLY TO NEW MATTER OF RESPONDENT WALTER BRASCH Petitioner Pennsylvania State Association of Township Supervisors ("PSATS"), by and through its undersigned counsel, respectfully submits its Reply to New Matter of Respondent Walter Brasch as follows: NEW MATTER 49. Paragraph 49 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Paragraph 49 of Respondent's New Matter is an incorporation paragraph to which no responsive pleading is required. 1 50. Pazagraph 50 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Paragraph 50 of Respondent's New Matter is denied to the extent it refers to a written document, Title 53 of the Pennsylvania Statutes, which is a document that speaks for itself. Therefore, any characterization of that document is expressly denied. Paragraph 50 is further denied to the extent that it sets forth conclusions of law to which no responsive pleading is required. 51. Paragraph 51 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Pazagraph 51 of Respondent's New Matter is denied to the extent it refers to a written document, Title 53 of the Pennsylvania Statutes, which is a document that speaks for itself. Therefore, any characterization of that document is expressly denied. 52. Paragraph 52 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Paragraph 52 of Respondent's New Matter is denied as stated. PSATS admits that its membership includes elected and appointed officials. However, PSATS also has affiliate members, many of whom aze not elected or appointed officials. 2 53. Pazagraph 53 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Pazagraph 53 of Respondent's New Matter is denied to the extent it refers to a written document, Title 53 of the Pennsylvania Statutes, which is a document that speaks for itself. Therefore, any chazacterization of that document is expressly denied. 54. Pazagraph 54 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Pazagraph 54 of Respondent's New Matter is denied to the extent it refers to a written document, the tax return that PSATS submitted to the Internal Revenue Service for calendar year 2010, which is a document that speaks for itself. Therefore, any characterization of that document is expressly denied. Paragraph 54 is further denied because PSATS, after reasonable investigation, is without knowledge, information or belief sufficient to respond to allegations relating to the personal beliefs purportedly held by Respondent. 55. Paragraph 55 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Pazagraph 55 of Respondent's New Matter is denied because PSATS, after reasonable investigation, is without knowledge, information or belief sufficient to respond to allegations relating to the personal beliefs purportedly held by Respondent. By way of further response, Paragraph 55 of Respondent's New Matter is admitted to the extent that PSATS has argued that its "sole source of income is not derived from political subdivisions." 56. Paragraph 56 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Paragraph 56 of Respondent's New Matter is further denied to the extent that it refers to written documents attached to Respondent's New Matter, which are documents that speak for themselves.. Therefore, any characterization of those documents is expressly denied. Paragraph 56 is further denied to the extent that it sets forth conclusions of law to which no responsive pleading is required. 57. Paragraph 57 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from fmal determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Paragraph 57 of Respondent's New Matter is denied to the extent it refers to a written document, the tax return that PSATS submitted to the Internal Revenue Service for calendar year 2010, which is a document that speaks for itself. Therefore, any characterization of that document is expressly denied. Paragraph 57 is further denied to the extent that it sets forth conclusions of law to which no responsive pleading is required. 58. Paragraph 58 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from 4 the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Paragraph 58 of Respondent's New Matter is denied because it sets forth conclusions of law to which no responsive pleading is required. 59. Paragraph 59 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Paragraph 59 of Respondent's New Matter is admitted. 60. Paragraph 60 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Paragraph 60 of Respondent's New Matter is denied because it sets forth conclusions of law to which no responsive pleading is required. 61. Paragraph 61 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, Paragraph 61 of Respondent's New Matter is denied because it sets forth conclusions of law to which no responsive pleading is required. 62. Paragraph 62 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from 5 the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, PSATS admits that it has not cited any exemptions under 65 P.S. § 67.708. 63. Paragraph 63 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, PSATS admits that it has not cited any privilege under 65 P.S. § 67.305(a)(2). 64. Paragraph 64 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that a further response is required, PSATS admits that it has not argued that the requested records are exempt from disclosure under any Federal or State law or regulation or judicial order or decree, except that they are exempt from disclosure because PSATS is not an "agency," as that term is defined in the Right-to-Know Law. 65. Paragraph 65 of Respondent's New Matter is denied on the basis that Respondent is not permitted to assert new matter in connection with appeals from final determinations from the Pennsylvania Office of Open Records and because the Court did not permit the introduction of additional evidence in its Rule to Show Cause Order dated October 9, 2012. To the extent that 6 a further response is required, Paragraph 65 of Respondent's New Matter is denied because it sets forth conclusions of law to which no responsive pleading is required. WHEREFORE, PSATS respectfully requests that this Court issue an order granting PSATS's Petition, finding that the OOR has no jurisdiction over PSATS, overturning the OOR's Final Determination, denying Mr. Brasch's Requests, and awarding PSATS all other such relief as this Court deems just and proper. Respectfully submitted, ~ . ~.~1~---. Scott E. Coburn Attorney ID No. 89841 4855 Woodland Drive Enola, PA 17025 (717) 763-0930 -telephone (717) 763-9732 -facsimile Counsel for Petitioner Pennsylvania State Association of Township Supervisors Dated: November 19, 2012 7 CERTIFICATE OF SERVICE I, Scott E. Coburn, certify that on this 19~' day of November, 2012, I caused a true and correct copy of the foregoing document to be sent via U.S. first-class mail to the following counsel of record: Terence J. Barna Benn Law Firm 103-107 E. Market Street York, PA 17401 Counsel for Walter Brasch J. Chadwick Schnee Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 4~' Floor Harrisburg, PA 17120-0225 Counsel for Office of Open Records `~~ Scott E. Coburn 4855 Woodland Drive Enola, PA 17025 (717) 763-0930 Counsel for Petitioner Pennsylvania State Association of Township Supervisors 8 � t IN THE COURT OF COMMON PLEAS 4 OF CUMBERLAND COUNTY,PENNSYLVANIA r=� 7�O Urin Pennsylvania State Association No. 2012-6207 o, z `' !of Township Supervisors, a�e � i6NNLAWFIRM Petitioner >a c� w. Civil Action-Law Pennsylvania Office of Open Appeal from Final Determination ktecords and of Pennsylvania Office of Open !Walter Brasch, Records Respondents MOTION OF RESPONDENT,WALTER BRASCH,FOR RECO►NSIDERATION OF ORDER DATED MARCH 7,2013 AND NOW, this�` day of March, 2013, comes the Respondent, Walter Brasch "Brasch"), by and through his undersigned counsel, the BENNLAWFIRM, and respectfully submits the following Motion for Reconsideration of Order dated March 7, 2013, as follows: 1. On October 4, 2012, Petitioner, Pennsylvania State Association of Township Supervisors ("PSATS"), filed a Petition for Review of the Final Determination of the Pennsylvania Office of Open Records ("OOR") issued September 4, 2012. 2. The Final Determination of the OOR was based upon four open records requests filed by Brasch with PSATS pursuant to the Right to Know Law("RTKL") on or about July 5, 2012 and July 10, 2012. 3. Brasch filed an Answer with Matter on October 29, 2012 and filed a brief on December 10, 2012. 4. PSATS filed a Reply to New Matter on November 19, 2012 and filed a brief on or 103-107 E.MARKET ST. about December 10, 2012. P.O.BOX 5185 1 YORK,PA 17405-5185 I) 5. In his Answer with New Matter filed on October 29, 2012, Brasch averred that PSATS is subject to the requirements of the RTKL because it is a"local agency" as that term is defined by the RTKL. See, e.g., Answer with New Matter,¶¶ 1, 27, 60, UENUNLAWFIRM 61. See also 65 P.S. §67.102. 6. In his brief filed on December 10, 2012, Brasch's primary argument for"local 2 w agency" status was that PSATS fell within the definition of"local authority"as set forth in the Statutory Construction Act, 1 Pa. C.S.A. §1991. See Brasch's brief, pages 7-16. 7. The Court heard oral argument on January 15, 2013. 8. On March 7, 2013 this Honorable Court entered an Order reversing the Final Determination of the OOR issued September 4, 2012. A true and correct copy of the Order is attached hereto as Exhibit"A". 9. This Honorable Court also filed an Opinion setting forth the reasons for its Order on March 7, 2013. 10. The Opinion provides, in applicable part, that PSATS is not a"local authority"but rather an unincorporated, non-profit association, and cites the Black's Law Dictionary definitions of"authority", "commission"and "association". Opinion at p. 13. 11. It is undisputed that the term"local authority" is not defined in the RTKL. See 65 P.S. §67.102. It is further undisputed that PSATS is an unincorporated, non-profit association. 103-107 E.MARKET ST. P.O.BOX 5185 YORK, PA 17405-5185 2 Ir I 12. However, the Pennsylvania Statutory Construction Act defines "local authority" as follows: "[w]hen used in any statute finally enacted on or after January 1, 1975, a municipal authority or any other body corporate and body politic created by one or U-SENNLAWFIWM more political subdivisions pursuant to statute." 1 Pa. C.S.A. §1991. 13. The RTKL was enacted after January 1, 1975. 14. Brasch argued in his brief and at the oral argument in this matter that PSATS was a "local agency"within the meaning of the RTKL because it fell within the Statutory Construction Act's definition of"local authority" applicable to the RTKL. See Brasch's brief, pages 7-16. 15. The Honorable Court's Opinion did not apply the Statutory Construction Act's definition of"local authority"to PSATS. 16. While this Honorable Court did apply the Commonwealth Court's test set forth in Philadelphia Industrial Development Corporation v. Ali,No. 528 C.D. 2010 (Pa. Commw. April 18, 2011) (unpublished memorandum opinion), to determine whether PSATS was a"similar governmental entity"under Section 67.102 of the RTKL, including whether PSATS was an entity"created by a political subdivision", the test contained within the Statutory Construction Act's definition of"local authority" contains different elements. 17. Second class townships are political subdivisions. See 1 Pa. C.S.A. §1991. Second class townships act through their supervisors. See, e.g,, 53 P.S. §66505 (corporate powers of second class townships exercised by supervisors). PSATS was created as an unincorporated association by various second class township supervisors 103-107 E.MARKET ST. P.O.BOX 5185 YORK,PA 17405-5185 3 pursuant to the statutory authority contained within the Second Class Township Code, 53 P.S. §66402. Accordingly, PSATS was created by, and on behalf of, multiple second class townships, and it is these same townships that pay the annual UseNNLAWFIRM dues assessed by PSATS to fund PSATS's activities, publications, salaries, services and property acquisitions. See 53 P.S. §66402(h). 18. Moreover, PSATS, an unincorporated association, owns real estate in its association name pursuant to the Second Class Township Code, 53 P.S. §66402(i),prosecutes and participates in legal actions in its association name, and 'files Form 990 informational returns with the IRS in its association name, on an annual basis. See Brasch's brief, pages 7-16. See also PSATS's Deed constituting a public record filed with the Cumberland County Recorder of Deeds in Deed Book 238, page 110. 19. As per Cumberland County Local Rule 208.3(a)(2), the Honorable President Judge Kevin A. Hess previously ruled on this matter by Opinion and Order filed on March 7, 2013. 20. A Court has the inherent power to reconsider its own rulings. Atlantic Richfield Company v. J.J. White, Inc., 302 Pa. Super. 276, 279, 448 A.2d 634, 636 (1982). 21. In accordance with Cumberland County Local Rule 208.3(a)(3), Brasch believes that this Honorable Court can make an ex parte determination as to whether or not to grant reconsideration of its prior Order entered March 7, 2013 based upon the within, as a Court may normally only modify or rescind an order within thirty(30) days after its entry. 42 Pa. C.S.A. §5505. See also Pa. R.A.P. 1701. 103-107 E.MARKET ST. P.O.BOX 5185 YORK,PA 17405-5185 4 I 22. Brasch respectfully requests that this Honorable Court grant reconsideration of its Order dated March 7, 2013 in light of the applicability of the Statutory Construction Act's definition of"local authority"to the RTKL. ANENNLAWFIRM WHEREFORE, Respondent, Walter Brasch, respectfully requests that this Honorable Court grant reconsideration of its Order dated March 7, 2013, and its accompanying Opinion, and thereafter affirm the Final Determination of the Office of Open Records issued in this case on September 4, 2012, ordering the Petitioner, PSATS, to provide all responsive records within thirty (30) days of the date of the Court's order. Respectfully submitted, BENNLAWFIRM By: Niles S. BeAdl Esq ' e Attorney I.D. #16284 Terence J. Barna, Esquire Attorney I.D. #74410 103 E. Market Street P.O. Box 5185 York, PA 17405-5185 (717) 852-7020 Fax: (717) 852-8797 nbennna,bennlawfirm.com tbarnaAbennlawfirm.corn Attorneys for Respondent Brasch 103-107 E.MARKET ST. P.O.BOX 5185 YORK,PA 17405-5185 5 EXHIBIT "A" PENNSYLVANIA STATE IN THE COURT OF COMMON PLEAS OF ASSOCIATION OF TOWNSHIP CUMBERLAND COUNTY, PENNSYLVANIA SUPERVISORS, Petitioner V. APPEAL FROM FINAL DETERMINATION OF PENNSYLVANIA OFFICE OF PENNSYLVANIA OFFICE OF RECORDS OPEN RECORDS and WALTER BRASCH, ; Respondents No. 2012-6207 CIVIL ACTION- LAW IN RE: PETITION FOR REVIEW OF THE PENNSYLVANIA STATE ASSOCIATION OF TOWNSHIP SUPERVISORS FROM FINAL DETERMINATION OF PENNSYLVANIA OFFICE OF OPEN RECORDS ORDER AND NOW, this day of March, 2013, upon consideration of the Petition for Review of the Pennsylvania State Association of Township Supervisors from a Final Determination of the Pennsylvania Office of Open Records, issued September 4, 2012, following a hearing,.held January 15, 2013, and for the reasons contained in the opinion filed of even date herewith, this court finds that the Pennsylvania State Association of Township Supervisors is neither a Commonwealth agency nor a local agency within the meaning of section 102 of the Pennsylvania Right-to-Know Law, and the Final Determination of the Office of Open Records is hereby REVERSED. r, -0 w -+ r BY THE COURT, -� CD A• o-Tj zo c CID Kevi Hess, P.J. CERTIFICATE OF SERVICE I, Terence J. Barna, Esquire, hereby certify that on this day of March, 2013, I served a true and correct copy of the foregoing "Motion for Reconsideration"to the following USENNLAWFIRM 'individual(s) by United States regular mail,postage prepaid: it Scott E. Coburn, Esquire 4855 Woodland Drive Enola, PA 17025 I Respectfully submitted, BENNLAWFIRM By: Terence J. BaAa, squire Attorney I.D. #74410 103 E. Market Street P.O. Box 5185 York, PA 17405-5185 (717) 852-7020 103-107 E. MARKET ST. P.O.BOX 5185 YORK,PA 17405-5185 6