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HomeMy WebLinkAbout13-5436 Supreme Couro J Pennsylvania COu 0 <COIYIIYt r O `Pleas For Prothonotary Use Only: Cover et S t � � Docket No: w Cur be�I - nd` 'I' County / ---------------------- The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court. Commencement of Action: S El Complaint El Writ of Summons E3 Petition 0 Transfer from Another Jurisdiction rl Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: Earle Drack Borough of Carlisle T Dollar Amount Requested: El within arbitration limits I Are money damages requested? E3 Yes 0 No (check one) Qoutside arbitration limits O N Is this a Class Action Suit? Yes El No Is this an MDJAppeal? Yes 0 No A Name of Plaintiff /Appellant's Attorney: Check here if you have no attorney (are a Self- Represented [Pro Sel Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS 0 Intentional 0 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution Debt Collection: Credit Card Board of Assessment El Motor Vehicle Q Debt Collection: Other Board of Elections Nuisance Dept. of Transportation Premises Liability Statutory Appeal: Other S Q Product Liability (does not include Employment Dispute: E mass tort) Slander/Libel /Defamation Discrimination C Other: Employment Dispute: Other Zoning Board (� Other: , I Other: O MASS TORT 1l Asbestos N Tobacco Q Toxic Tort - DES Toxic Tort -Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste Other: 0 Ejectment � Common Law /Statutory Arbitration B 0 Eminent Domain /Condemnation Declaratory Judgment 0 Ground Rent Mandamus 1l Landlord/Tenant Dispute Non- Domestic Relations 1] Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial Q Quo Warranto Dental Partition El Replevin rl Legal Quiet Title M Other: rl Medical Other: r71 Other Professional: Updated 1/1 /2011 W THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack vs. * Civil Action No. , 3 - S y3 �p VI * Ms. Stacy Hamilton Open Records Officer Borough of Carlisle * Complaint in Mandamus * Filed by and on behalf of: Earle Drack 111 Bertolet School RD Spring City, PA 19475 -0-10 m� � AC Cil Q I&\v?,7SP d CL eta- �ata4c,,op3 �7 1 a�auc,� 33 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack * VS. * Civil Action No. * Ms. Stacy Hamilton Open Records Officer Borough of Carlisle * Complaint in Mandamus * * AND NOW comes Earle Drack, by and for himself as a pro se litigant, and files the within Complaint in Mandamus pursuant to Pa.R.C.P. 1093(1) and 1095 seeking to compel the Mms. Stacy Hamilton, Open Records Officer (ORO) of the Borough of Carlisle, Cumberland County, to comply with the mandatory Final Determination of the Office of Open Records (OOR) in Docket No. 2013 -0743 dated May 31, 2013 and produce the required record, and in support thereof states the following: PLAINTIFF AND DEFENDANT PLAINTIFF is Earle Drack ( "Drack ") of 111 Bertolet School Rd, Spring City, PA, a citizen -of Pennsylvania. DEFENDANT is Carlisle Borough (the "Borough "), a local agency as defined by the PA RTKL, and its Open Records Officer, Ms. Stacy Hamilton (the "Borough ORO "). 2 FACTS OF THE CASE On April 6, 2013, Drack submitted a Request to the Borough ORO seeking records, including, "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU -91 [( "Device ")] in the past 60 days." On May 7, 2012, the Borough purportedly granted access to the requested records. On April 29, 2013, Drack timely appealed claiming that the Borough failed to provide records responsive to Item 4 of the Request. The OOR invited both parties to supplement the record and directed the Borough to notify any third parties of their ability to participate in this appeal pursuant to 65 P.S. § 67.1101(c). On May 8, 2013, the Borough submitted a verified position statement stating that it does not possess responsive records and provided a copy of the notice to YIS /Cowden Group, Inc. ( "YIS /Cowden "), a third party contractor that may possess responsive records. The Borough also claimed that YIS /Cowden considers the responsive records exempt from public access pursuant to the confidential proprietary records exemption of 65 P.S. § 67.708(b)(11). On May 8, 2013, Drack also submitted a position statement reiterating his arguments on appeal and claiming that 65 P.S. § 67.708(b) (11) is not a proper ground for withholding responsive records. On May 31, 2013 the PA Office of Open Records issued a Final Determination finding that that "the Borough has not provided sufficient evidence to meet the two -part test for trade secret or confidential proprietary information listed above, as the Borough offered no evidence to support withholding the requested records. As such, the Borough has failed to meet its burden of proof that the requested records are exempt from disclosure." 3 In conclusion, the OOR directed: "For the foregoing reasons, Requester's appeal is granted and the Borough is required to provide records responsive to Item 4 of the Request within thirty (30) days. This Final Determination is binding on all parties. Within thirty (30) days of the mailing date of this Final Determination, any party may appeal to the Cumberland County Court of Common Pleas." The Final Determination is included as Exhibit A. The Borough did not appeal this Final Determination of the OOR. Nor did the Borough or the Borough ORO provide the responsive records as directed by the OOR. DUTY OF DEFENDANT AND REFUSAL The Defendants (the Borough and the Borough ORO) had a duty to provide the responsive records within thirty days of the May 31, 2013 final determination. On June 3, 2013, Drack contacted the Borough ORO via email to ask if the third party vendor in possession of the responsive records had been notified of the OOR decision and if the third party had been asked to provide the records for the Borough to provide to Drack. No response was received. On July 1 Drack notified the Borough ORO and the Borough Solicitor that the responsive records were now due to be provided since no appeal had been filed and thirty days had elapsed, and asked if the responsive records had been provided by the third party. On July 2, the Borough Solicitor indicated that the third party had not provided any responsive records to the Borough and indicated that future correspondence should be directed to him and not sent or copied to the Borough ORO. 4 Also on July 2, Drack inquired of the Borough Solicitor whether the third party was aware of the OOR Final Determination and the June 28 deadline, since passed, for providing responsive records. On July 3, after receiving no response, Drack emailed the Borough Solicitor as follows: "Is there a convenient time today for a brief call to discuss this matter? The Borough has not complied with the OOR directive, and it is not clear way (sic — "what'), if any, any effort will be made to do so." Also on July 3, the Borough Solicitor responded via email as follows: "Mr. Drack: There is really nothing for us to discuss. YIS /Cowden will not provide any documents to the Borough. You need to pursue whatever recourse you feel is appropriate." Later the same day, Drack responded via email with the message below and the OOR Final Determination attached: "It is not clear to me whether the Borough has even advised YIS /Cowden of the OOR decision and /or has asked YIS /Cowden to provide the record in light of that decision. Could you please clarify that, as well as whether or not the Borough intends to make any other efforts to comply with the directive of the OOR? My understanding of the RTKL is that the Borough has the obligation to take the steps necessary to retrieve the record in question from YIS /Cowden, since the OOR directive to provide the record is addressed to the Borough (see below) and the Borough elected not to appeal that determination." CONCLUSION For the foregoing reasons, Requester's appeal is granted and - the Borough is required to provide records responsive to [tern 4 of the Request NArithin thirty <30) days. This Final Detennina #ion is binding on all parties. Within thirty (30) days of the mailing date of this Final Determination any party may appeal to the Cumberland County Court of Coannaon l'lcas. 65 5 After receiving no response, Drack followed up again with an email to the Borough Solicitor on July 5 saying: "Could you please clarify whether YIS /Cowden has been made aware of the OOR ruling, as well as whether or not the Borough intends to make any other efforts to comply with the directive of the OOR? My understanding of the RTKL is that the record in question is considered to be in the constructive possession of the Borough." After receiving no response, Drack followed up again with an email to the Borough ORO (copying Mr. Brenneman, the Borough Solicitor) on July 13. This email contained all the previous messages in one thread below and said: "Mr. Brenneman has not given me the courtesy of a response to the inquiry below, so I wondered if perhaps you could shed light on that. It appears to me that the Borough is not acting in good faith to comply with the determination of the PA Office of Open Records." When no response was received, Drack sent the following message to both the Borough ORO and Solicitor on July 18: "It appears that the Borough will not be answering my questions. Please be advised that, should the Borough continue to fail to comply with the final determination or the PA Office of Open Records and fail to clarify the reason for that non - compliance, I will be seeking a court order to secure compliance, and I will seek any penalties or fines possible under the RTKL." The Borough Solicitor responded on July 19 as follows: "I made it clear to you in my email of July 3, 2013 that YIS /Cowden will not provide any documents to the Borough and that you need to pursue whatever recourse you feel is appropriate. I also made it clear to you in a previous email that you are not to be communicating with Ms. Hamilton with respect to this matter. I am not sure what was unclear to you in either of those emails." Drack responded to the Borough Solicitor on July 19 with the following: 6 "What is not clear, Mr. Brenneman, is whether the Borough has made YIS Cowden aware of the OOR decision and taken steps to retrieve the record. That is why I asked the question, which has gone unanswered. Also, is it clear to the Borough that it is the Borough's responsibility, not mine, to compel YIS Cowden to provide the record in question if they refuse to do so ?" No response to that message has been received as of Aug. 11, 2013. The complete email thread for these communications is attached as Exhibit B. INTEREST OF THE PLAINTIFF The Plaintiff, Drack, has an interest as the requester, via the RTKL, of the records in question. It is to him that the OOR ordered the responsive records be provided. DAMAGES, PENALTIES, FEES, COSTS No monetary damages are sought. In addition to the responsive records being provided, Drack is entitled to a civil penalty of $1,500 as provided by the RTKL 1305(a) for denying access to a record in bad faith. Even though the record may be in actual possession of a contracted third party, case law makes clear it is in the constructive possession of the Borough. By simply telling Drack that it is he who must decide what to do next, and not taking steps to secure the responsive records as is its mandatory duty under the RTKL, the Borough and the Borough ORO have acted in bad faith and forced Drack to incur additional costs and additional delay in order to compel compliance. 7 OTHER ADEQUATE REMEDY AT LAW No other adequate remedy at law is available other than the compliance with the mandatory Final Determination of the OOR, which requires the provision of the responsive records in question. PRAYER In consideration of the above, Drack respectfully prays to this Court for the following: 1) The entry of a judgment against the Borough ordering that they provide the responsive records as directed by the OOR. 2) The entry of a judgment for a civil penalty against the Borough in the amount of $1,500 per RTKL 1305(a) for denial of a record in bad faith. 3) The entry of a judgment against the Borough for a civil penalty of $500 per day until the responsive records are provided per RTKL 1305(b). Respectfully Submitted, Earle D. Drack, Complainant 8 VERIFICATION I, Earle Drack, Complainant herein, verify that the foregoing information is true and correct to the best of my knowledge, recollection and belief. I understand that my statements are made subject to the penalties of 18 Pa.C.S. §4904, which relates to unsworn falsification to authorities. Earle Drack Pro se Complainant 9 ORDER AND NOW, this day of , 2013, it is hereby ordered and decreed that the prayer for judgment of Earle Drack in the Complaint of Mandamus is hereby Based on this Order, 1) The Borough of Carlisle and its Open Records Officer are ordered to provide the responsive records to Earle Drack. 2) The Borough of Carlisle is ordered to pay immediately to Earle Drack a civil penalty of $1500 per RTKL 1305(a) for denial of a record in bad faith. 3) The Borough of Carlisle is ordered to pay a civil penalty per RTKL 1305(b) of $500 per day until the responsive records are provided to Earle Drack. Distribution: Earle Drack, Complainant Ms. Stacy Hamilton, Borough of Carlisle Open records Officer EXHIBIT A pennsytvania OFFICE OF OPEN RECORDS FINAL DETERNIINATION IN THE MATTER OF EARLE DRACK, Complainant V. Docket No: 2013 -0743 CARLISLE BOROUGH, Respondent INTRODUCTION Earle Drack ( "Requester ") submitted . a request ( "Request ") to Carlisle Borough ( "Borough ") pursuant to the Right -to -Know Law, 65 P.S. §§ 67.104 et seq., ( " RTKL ") seeking records related to a certain electronic device. The Borough partially denied the Request claiming that it did not possess electronic copies of the requested records. The Requester subsequently appealed to the OOR. For the reasons set forth in this Final Determination, the appeal is granted and the Borough is required to take further action as directed. FACTUAL BACKGROUND On April 6, 2013, . the Requester submitted a Request to the Borough seeking records, including, "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU -91 [( "Device ")] in the past 60 days." On May 7, 2012, the Borough purportedly granted access to the requested records. l On April 29, 2013, the Requester timely appealed claiming that the Borough failed to provide records responsive to Item 4 of the Request.' The OOR invited both parties to supplement the record and directed the Borough to notify any third parties of their ability to participate in this appeal pursuant to 65 P.S. § 67.1101(c). On May 8, 2013, the Borough submitted a verified position statement stating that it does not possess responsive records and provided a copy of the .notice to YIS /Cowden Group, Inc. ( "YIS /Cowden "), a third party contractor that may possess responsive records. Finally, the Borough claims that YIS /Cowden considers the responsive records exempt from public access pursuant to the confidential proprietary records exemption of 65 P.S. § 67.708(b)(11). On May 8, 2013, the Requester also submitted a position statement reiterating his arguments on appeal and claiming that 65 P.S. § 67.708(b)(11) is not a proper ground for withholding responsive records. LEGAL ANALYSIS The RTKL is "designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions." Bowling v. OOR, 990 A.2d 81.3, 824 (Pa. Commw. Ct. 2010), appeal granted 15 A.3d 427 (Pa. 2011). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. § 67.503(a). An appeals officer is required "to review all information filed relating to the request" and may consider testimony, evidence and documents that are reasonably probative and relevant to the matter at issue. 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal. The decision to hold a hearing or not hold a hearing is discretionary and non - appealable. Id.; Giurintano v. Dep't of Gen. Servs., 20 A.3d 613, 617 (Pa. ' As the Requester does not challenge the Borough's response to other Items of the Request the Requester has waived any objections regarding those Items. See DOC v. OOR, 18 A.3d 429 (Pa. Commw. Ct. 2011). 2 Commw. Ct. 201 l ). Here, neither party requested a hearing and the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter. The Borough is a local agency subject to the RTKL that is required to disclose public records. 65 P.S. § 67.302. Records in possession of a local agency are presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. § 67.305. Upon receipt of a request, an agency is required to assess whether a record requested is within its possession, custody or control and respond within five business days. 65 P.S. § 67.901. An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. § 67.708(b). Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: "(1) The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence." 65 P.S. § 67.708(a). Preponderance of the evidence has been defined as "such proof as leads the fact - finder ... to find that the existence of a contested fact is more probable than its nonexistence." Pa. State Troopers Ass'n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Dep't of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). "The burden of proving a record does not exist ... is placed on the agency responding to the right -to -know request." Hodges v. Pennsylvania Department of Health, 29 A.3d 1190, 1192 (Pa. Commw. Ct. 2011). 1. The Borough has not shown that it does not possess responsive records The Borough claims that it does not possess records responsive to Item 4 of the Request. However, the Borough acknowledges that it contracts with a YIS /Cowden regarding the 3 calibration of the Borough's Device. Section 506(d) of the RTKL provides "that a record in the possession of a party with whom an agency has contracted to perform a governmental function on behalf of the agency shall be deemed a `public record,' and, as a consequence, shall be accessible under the RTKL, so long as the record (a) directly relates to the governmental function and (b) is not exempt under the RTKL." See 65 P.S. § 67.506(d); Allegheny County Department of Administrative Services v. A Second Chance, Inc., 13 A.3 1025, 1039 (Pa. Commw. Ct. 2011); see also 65 P.S. § 67.305(a) ( "A record in the possession of a Commonwealth or local agency shall be presumed to be a public record ") cf. Buehl v. OOR, 6 A.3d 27 (Pa. Commw. Ct. 2010). While the Borough attests that it does not possesses responsive records, , the Borough also submitted evidence showing that a YIS /Cowden company provides calibration services for the Borough's Device and the Borough provided notice of the instant appeal to the same company. Thus, based on the evidence submitted in this appeal, the OOR is constrained to hold that the Borough contracted with the company to provide "calibration" services for the Borough's Device. Therefore, records in the possession of a contractor directly related to the calibration of the Borough's Device are within the constructive possession of the Borough pursuant to 65 P.S. § 67.506(d). See, e.g., Edinboro Univ. of Pa. v. Folletti, No. 1900 C.D. 2010, 2011 Pa. Commw. Unpub. LEXIS 561 (Pa. Commw. Ct. 2011) (granting access to records generally related to contractors' and subcontractors' compliance with particular legislation); Wielgosz v. City of Wilkes- Barre, OOR Dkt. AP 2011 -1180, 2011 PA O.O.R.D. LEXIS 848. Accordingly, unless there is evidence that the requested records are exempt under the RTKL, the records are presumed public and must be provided to the Requester. See, e.g., Edinboro Univ. of Pa. v. Ford, 18 A.3d 1.278 (Pa. Commw. Ct. 2011). 4 2. The Borough has not shown that Item 4 of the Request seeks confidential proprietary information /trade secrets The Borough argues that the requested records are exempt from disclosure as confidential proprietary information/trade secrets. Section 708(b)(11) exempts from disclosure records that reveal "trade secrets" or "confidential proprietary information." See 65 P.S. § 67.708(b)(11). These terms are defined in Section 102 of the RTKL as follows: Confidential proprietary information: Commercial or financial information received by an agency: (1) which is privileged or confidential; and (2) the disclosure of which would cause substantial harm to the competitive position of the [entity] that submitted the information. Trade secret: Information, including a formula, drawing, pattern, compilation, including a customer list, program, device, method, technique or process that: (1) derives independent economic value, actual or potential, from not being generally known to and not being readably ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 65 P.S. § 67.102. An agency must establish that both elements of these two -part tests are met in order for the exemption to apply. See Sansoni v. Pennsylvania Housing Finance Agency, OOR Dkt. AP 2010 -0405, 2010 . PA O.O.R.D. LEXIS 375; see also Office of the Governor v. Bari, 20 A.3d 634 (Pa. Commw. Ct. 2011) (involving confidential proprietary information). The OOR finds that the Borough has not provided sufficient evidence to meet the two -part test for trade secret or confidential proprietary information listed above, as the Borough offered no evidence to support withholding the requested records? As such, the Borough has failed to meet its burden of proof that the requested records are exempt from disclosure. See 65 P.S. § 67.708(a)(1). 2 The OOR notes that an "agency does not have the right or authority to waive an individual's interest in keeping his information confidential." Commonwealth v. Cole, 52 A.3d 541, 551 (Pa. Commw. Ct. 2012) (citing Pennsylvania Gaming Control Board v. Office of Open Records, 48 A.3d 503, 513 (Pa. Commw. Ct. 2012)). 5 CONCLUSION For the foregoing reasons, Requester's appeal is granted and the Borough is required to provide records responsive to Item 4 of the Request within thirty (30) days. This Final Determination is binding on all parties. Within thirty (30) days of the mailing date of this Final Determination, any party may appeal to the Cumberland County Court of Common Pleas. 65 P.S. § 67.1302(a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at: http://openrecords.state.pa.us FINAL DETERMINATION ISSUED AND MAILED: May 29, 2013 f APPEALS OFFICER BENJAMIN A. LORAH, ESQ. Sent to: Earle Drack (via e -mail only); Keith Brenneman, Esq. (via e -mail only); Stacy Hamilton (via e-mail only) 6 EXHIBIT B Earle Drack From: Earle Drack <edrack @comcast.net> Sent: Friday, July 19, 2013 7:54 AM To: Keith O. Brenneman Subject: Re: Final Determination: Drack- Borough of Carlisle (AP 2013 -0743) What is not clear, Mr. Brenneman, is whether the Borough has made YIS Cowden aware of the OOR decision and taken steps to retrieve the record. That is why I asked the question, which has gone unanswered. Also, is it clear to the Borough that it is the Borough's responsibility, not mine, to compel YIS Cowden to provide the record in question if they refuse to do so? Regards, Earle Drack On Jul 19, 2013, at 7:20 AM, "Keith O. Brenneman" < k.brenneman @verizon.net wrote: Mr. Drack: I made it clear to you in my email of July 3, 2013 that YIS /Cowden will not provide any documents to the Borough and that you need to pursue whatever recourse you feel is appropriate. I also made it clear to you in a previous email that you are not to be communicating with Ms. Hamilton with respect to this matter. I am not sure what was unclear to you in either of those emails. Keith O. Brenneman Snelbaker & Brenneman, P. C. 44 West Main Street Mechanicsburg, PA 17055 Telephone: 717.697.8528 Telefax: 717- 697 -7681 From: Earle Drack f mailto:edrack@comcast.net Sent: Thursday, July 18, 2013 5:43 PM To: sham ilton(abcarlislepa.org 'Keith O. Brenneman' Subject: RE: Final Determination: Drack- Borough of Carlisle (AP 2013 -0743) Ms. Hamilton and Mr. Brenneman, It appears that the Borough will not be answering my questions. Please be advised that, should the Borough continue to fail to comply with the final determination or the PA Office of Open Records and fail to clarify the reason for that non - compliance, I will be seeking a court order to secure compliance, and I will seek any penalties or fines possible under the RTKL. Regards, Earle Drack 610- 506 -5701 From: Earle Drack fmailto:edrack(acomcast.net Sent: Saturday, July 13, 2013 5:52 PM To: shamiltonacarlislepa.org Cc: 'Keith 0. Brenneman' Subject: RE: Final Determination: Drack- Borough of Carlisle (AP 2013 -0743) Greetings Ms. Hamilton, Mr. Brenneman has not given me the courtesy of a response to the inquiry below, so I wondered if perhaps you could shed light on that. It appears to me that the Borough is not acting in good faith to comply with the determination of the PA Office of Open Records. Best Regards, Earle Drack From: Earle Drack [mailto:edrack@comcast.net Sent: Friday, July 05, 2013 5:17 PM To: 'Keith 0. Brenneman' Subject: RE: Final Determination: Drack- Borough of Carlisle (AP 2013 -0743) Mr. Brenneman, Could you please clarify whether YIS /Cowden has been made aware of the OOR ruling, as well as whether or not the Borough intends to make any other efforts to comply with the directive of the OOR? My understanding of the RTKL is that the record in question is considered to be in the constructive possession of the Borough. Thanks and Best Regards, Earle Drack From: Earle Drack [mailto:edrack(&comcast.net Sent: Wednesday, July 03, 2013 10:46 AM To: 'Keith 0. Brenneman' Subject: RE: Final Determination: Drack- Borough of Carlisle (AP 2013 -0743) Mr. Brenneman, It is not clear to me whether the Borough has even advised YIS /Cowden of the OOR decision and /or has asked YIS /Cowden to provide the record in light of that decision. Could you please clarify that, as well as whether or not the Borough intends to make any other efforts to comply with the directive of the OOR? My understanding of the RTKL is that the Borough has the obligation to take the steps necessary to retrieve the record in question from YIS /Cowden, since the OOR directive to provide the record is addressed to the Borough (see below) and the Borough elected not to appeal that determination. <image001 Jpg> Thanks and Best Regards, Earle Drack From: Keith 0. Brenneman [ mailto:k.brenneman @ verizon.net Sent: Wednesday, July 03, 2013 10:28 AM To: 'Earle Drack' Subject: RE: Final Determination: Drack- Borough of Carlisle (AP 2013 -0743) 2 Mr. Drack: There is really nothing for us to discuss. YIS /Cowden will not provide any documents to the Borough. You need to pursue whatever recourse you feel is appropriate. Keith O. Brenneman Snelbaker & Brenneman, P. C. 44 West Main Street Mechanicsburg, PA 17055 Telephone: 717.697.8 528 Telefax: 717- 697 -7681 From: Earle Drack fmailto:edrack @comcast.net Sent: Wednesday, July 3, 2013 10:16 AM To: 'Keith 0. Brenneman' Subject: RE: Final Determination: Drack- Borough of Carlisle (AP 2013 -0743) Mr. Brenneman, Is there a convenient time today for a brief call to discuss this matter? The Borough has not complied with the OOR directive, and it is not clear way, if any, any effort will be made to do so. Thanks and Best Regards, Earle Drack 610- 506 -5701 From: Earle Drack fmailto:edrack @comcast.net Sent: Tuesday, July 02, 2013 7:38 AM To: Keith 0. Brenneman Subject: Re: Final Determination: Drack- Borough of Carlisle (AP 2013 -0743) Understood, Mr. Brenneman. Is YIS /Cowden aware of the OOR decision in this case, and the June 28 deadline for providing the record in question? Thanks and Best Regards, Earle Drack On Jul 2, 2013, at 7:28 AM, "Keith 0. Brenneman" < k.brenneman @verizon.net wrote: Mr. Drack: YIS /Cowden has not provided any records. All further communication on this matter should be sent to me alone as counsel to the Borough of Carlisle and not copied to or sent to Stacey Hamilton. Keith O. Brenneman Snelbaker & Brenneman, P. C. 44 West Main Street Mechanicsburg, PA 1.7055 Telephone: 71.7.697.8528 Telefax: 717- 697 -7681 3 From: Earle Drack (mailto:edrack(a)comcast.net Sent: Monday, July 1, 2013 6:22 PM To: shamilton0carlislepa.org k.brenneman(averizon.net Subject: RE: Final Determination: Drack - Borough of Carlisle (AP 2013 -0743) Greetings, With respect to the attached Final Determination, has YIS /Cowden provided the record in question? As you are likely aware, the due date for providing the requested materials has passed. My apologies if a response or a notice of appeal to the Court of common Pleas is en route. Best Regards, Earle Drack From: Earle Drack fmailto:edrackO)comcast.net Sent: Monday, June 03, 2013 10:44 AM To: shamilton@carlislepa.org Subject: FW: Final Determination: Drack- Borough of Carlisle (AP 2013 -0743) Greetings Ms. Hamilton, With respect to the attached Final Determination, has the Borough made YIS /Cowden aware of the OOR decision and requested that YIS /Cowden provide the record in question? Thanks and Best Regards, Earle Drack From: Lorah, Benjamin [mailto:blorah(@pa.gov Sent: Wednesday, May 29, 2013 4:44 PM To: edracWcomcast.net k.brenneman@verizon.net sham iltonCabcarlislepa.org Subject: Final Determination: Drack- Borough of Carlisle (AP 2013 -0743) Dear Parties: Attached, please find the final determination for the above captioned matter. Sincerely, Ben Lorah <image001.jpg> Benjamin Lorah Appeals Officer Office of Open Records (717) 346 -9903 Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120 -0225 http://openrecords.state.pa.us Confidentiality Notice: This electronic communication is privileged and confidential and is intended only for the party to wh, addressed. If received in error, please return to sender. 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack * VS. * Civil Action No. * Ms. Stacy Hamilton Open Records Officer Borough of Carlisle * Complaint in Mandamus * * PROOF OF SERVICE I, Earle Drack, pro se Complainant, do hereby certify that I have served a copy of the forgoing Complaint in Mandamus upon the Borough of Carlisle Open Records Officer via prepaid first class US Mail at the address shown below: 4 - 41 / 7 // 3 Earle D. Drack, Defendant Date Ms. Stacey Hamilton Open Records Officer, Borough of Carlisle 53 West South Street, Carlisle, Pennsylvania 17013 THE MACMAIN GROUP, LLC By: David J. MacMain, Esquire Attorneys for Defendants Borough of Carlisle Attorney I.D. #59320 and Ms. Stacy Hamilton, Open Records Officer By: Brian Leinhauser, Esquire Attorney I.D. #203945 101 Lindenwood Drive Suite 160 Malvern, PA 19355 (484)-318-7106 EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYVVA IA=-- CIVIL ACTION - LAW rn m-.2 r--- x r7i VS. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH : COMPLAINT IN MANDAMUS Q �c=± OF CARLISLE �'.` cj. ` Defendants ACCEPTANCE OF SERVICE I accept service of the Complaint in Mandamus on behalf of Ms. Stacy Hamilton, Open Records Officer and Borough of Carlisle and certify that I am authorized to do so. THE MACMAIN LAW GROUP, LLC Date: September 24, 2013 By: Brian Leinhauser, Esquire Attorney ID #203495 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Defendants Y THE MACMAIN GROUP, LLC By: David J. MacMain, Esquire Attorneys for Defendants Borough of Carlisle Attorney I.D. #59320 and Ms. Stacy Hamilton, Open Records Officer By: Brian Leinhauser, Esquire Attorney I.D. # 203945 101 Lindenwood Drive Suite 160 Malvern, PA 19355 (484)-318-7106 EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH COMPLAINT IN MANDAMUS OF CARLISLE : Defendants CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Acceptance of Service via United States First Class Mail, Postage Pre-Paid,upon the following: Earle Drack 111 Bertolet School Road Spring City, PA 19475 MACda—u—s IN GROUP, LLC Date: September 24, 2013 By: B ' L ei eVTs—qc , ir e Attorney ID #203945 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Defendants r THE MACMAIN GROUP, LLC By: David J. MacMain, Esquire Attorneys for Defendants Borough of Carlisle Attorney I.D. #59320 and Ms. Stacy Hamilton, Open Records Officer By: Brian Leinhauser, Esquire Attorney I.D. #203945 101 Lindenwood Drive Suite 160 Malvern,PA 19355 (484)-318-7106 EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. 13 . 51:34 MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH COMPLAINT IN MANDAMUS OF CARLISLE Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: T c° = ` >= Kindly enter the appearance of Brian H. Leinhauser, Esquire of The MacMain L�awrroup; LLC, as counsel on behalf of Ms. Stacy Hamilton, Open Records Officer and Borough of Carlisle in the matter captioned above. THE MACMAIN LAW GROUP, LLC Dated: 2 w 3 By. —qjQ�'a�� Leinhauser, Esquire Attorney ID #203495 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Defendants i THE MACMAIN GROUP, LLC By: David J. MacMain, Esquire Attorneys for Defendants Borough of Carlisle Attorney I.D. #59320 and Ms. Stacy Hamilton, Open Records Officer By: Brian Leinhauser, Esquire Attorney I.D. #203945 101 Lindenwood Drive Suite 160 Malvern, PA 19355 (484)-318-7106 EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH COMPLAINT IN MANDAMUS OF CARLISLE Defendants CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Entry of Appearance via United States First Class Mail, Postage Pre-Paid,upon the following: Earle Drack 111 Bertolet School Road Spring City, PA 19475 THE MACMAIN LAW GROUP, LLC Dated: 2Y ��3 By: 'an Leinhauser, Esquire Attorney ID #203495 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Defendants THE MACMAIN GROUP, LLC By: David J. MacMain, Esquire Attorneys for Defendants Borough of Carlisle Attorney I.D. #59320 and Ms. Stacy Hamilton, Open Records Officer, By: Brian Leinhauser, Esquire Attorney I.D. #203945 c _- 101 Lindenwood Drive —4 Suite 160 c Malvern, PA 19355 (484)-318-7106 p� EARLE DRACK, : IN THE COURT OF COMMON PLEA? Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA •• CIVIL ACTION - LAW vs. : NO. 13-5436 MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH •• COMPLAINT IN MANDAMUS OF CARLISLE • Defendants • • vs. • • YIS/COWDEN GROUP, INC DEFENDANTS, MS. STACY HAMILTON, OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE'S THIRD PARTY JOINDER COMPLAINT NOW COMES, Defendant/Third Party Plaintiff, Ms. Stacy Hamilton, Open Records Officer and the Borough of Carlisle. ("Third Party Plaintiffs")by and through their attorneys, The MacMain Law Group, LLC,brings this Third Party Complaint against YIS/Cowden Group, Inc., ("Third Party Defendant") and states; 1. Ms. Stacy Hamilton is the Open Records Officer for the Borough of Carlisle pursuant to the Right to Know Law 65 P.S. §67.502. 2. The Borough of Carlisle is a local agency pursuant to the Right to Know Law 65 P.S. 67.302. 3. Plaintiff, Earle Drack, is an adult individual with an address of 111 Bertolet School Road, Spring City, PA 19475. 4. YIS/Cowden Group, Inc., is a Pennsylvania Corporation with an address of 4341 Lycoming Creek Road Cogan Station, PA 17728. Cowden sells, repairs and calibrates speed timing devices, including the ENRADD EJU-91. 5. On April 6, 2013, the Plaintiff submitted a Right to Know Request to Ms. Hamilton seeking documents, including the procedures used to calibrate the Borough's wireless ENRADD EJU -91 device in the last 60 days. 6. The Borough forwarded Plaintiff's Right to Know Request to Third Party Defendant, as they sell, repair and calibrate the device and would be in possession of the procedures requested by Plaintiff. 7. Third Party Defendant refused and continues to refuse to provide copies of the procedures for the ENRADD device. 8. The Borough responded to Plaintiff's Right to Know Request, this response did not include the procedures requested regarding the ENRADD device as the Borough was not in possession of same. 9. Plaintiff appealed to the Office of Open Records as a result of Third Party Plaintiffs alleged failure to provide the requested procedures. 10. Third Party Plaintiff was notified of Plaintiffs appeal. 11. On May 31, 2013, the Office of Open Records made a final determination that the Third Party Plaintiffs are required to provide the procedures. 12. Third Party Defendant refused and continues to refuse to provide copies of the procedures for the ENRADD device. 13. Because Third Party Defendant refused to provide copies of the procedures for the ENRADD device, Third Party Plaintiffs have been unable to comply with the Office of Open Records final determination. 14. Therefore, on August 1, 2013, Plaintiff filed a Complaint in Mandamus seeking judgment against Third Party Plaintiffs which includes an Order that they provide the requested procedures, civil penalty against Third Party Plaintiffs in the amount of$1,500.00 for acting in bad faith and civil penalties of$500 per day until the requested records are provided. (See, Plaintiff's Complaint in Mandamus attached hereto as Exhibit"A"). 15. It is specifically denied that Third Party Plaintiffs acted in bad faith in not providing Plaintiff with the requested procedures pursuant to his Right to Know Request. Third Party Plaintiffs are not in possession of the documents and forwarded the request to Third Party Defendants for the documents. Third Party Defendants have continuously refused to provide Third Party Plaintiffs with the documents preventing them from complying with Plaintiff's Right to Know Request and with the Office of Open Records final determination. 16. Therefore, if it is judicially determined that Plaintiff is entitled to relief as alleged in his complaint, Third Party Plaintiffs avers that Third Party Defendant is required to produce the procedures requested by Plaintiff and is responsible for any civil penalties which are claimed by Plaintiff and Third Party Plaintiffs have no liability to Plaintiff whatsoever for said penalties and that, as such, Third Party Defendant is solely liable to Plaintiff for all damages suffered by him, if any, or is jointly or severely liable with Third Party Plaintiffs, or liable over to Third Party Plaintiffs for indemnification and/or contribution, any and all liability on the part of Third Party Plaintiffs being expressly denied. WHEREFORE,Third Party Plaintiffs, Ms. Stacy Hamilton, Open Records Officer and the Borough of Carlisle demands judgment in their favor and against the Third Party Defendant YIS/Cowden Group, Inc. Furthermore, Ms. Stacy Hamilton, Open Records Officer and Borough of Carlisle demands that that if there is any liability to Plaintiff, YIS/Cowden Group, Inc., is/are solely liable to Plaintiffs and must provide copies of the procedures for the ENRADD EJU-91 device. In the event Plaintiff is entitled to recover civil monetary penalties against, Ms. Stacy Hamilton, Open Records Officer and the Borough of Carlisle, that they may have judgment over and against YIS/Cowden Group, Inc.,by way of indemnification and/or contribution for the amount recovered by Plaintiff against Ms. Stacy Hamilton, Open Records Officer and the Borough of Carlisle together with costs. THE MACMAIN LAW GROUP, LLC _ • Dated: October 9, 2013 •B Y� f A - l Brian e� i auser, Esquire Attorney ID #203495 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Defendants THE MACMAIN GROUP, LLC By: David J. MacMain, Esquire Attorneys for Defendants Borough of Carlisle Attorney I.D. #59320 and Ms. Stacy Hamilton, Open Records Officer By: Brian Leinhauser, Esquire Attorney I.D. #203945 101 Lindenwood Drive Suite 160 Malvern, PA 19355 (484)-318-7106 EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW vs. : NO. 15-5436 MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH : COMPLAINT IN MANDAMUS OF CARLISLE • Defendants CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Third Party Joinder Complaint via United States First Class Mail, Postage Pre-Paid,upon the following: Earle Drack 111 Bertolet School Road Spring City, PA 19475 Daniel Mathers 416 Pine Street Suite 308 Williamsport, PA 17701 THE MACMAIN LAW GROUP, LLC Dated: October 9, 2013 By: at, :rian Leinhauser, Esquire Attorney ID #203495 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Defendants THE MACMAIN GROUP, LLC By: David J. MacMain, Esquire Attorneys for Defendants Borough of Carlisle Attorney I.D. #59320 and Ms. Stacy Hamilton, Open Records Officer By: Brian Leinhauser, Esquire Attorney I.D. #203945 101 Lindenwood Drive Suite 160 Malvern, PA 19355 (484)-318-7106 EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW vs. : NO. 13-5436 c� MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH : COMPLAINT IN MANDAMUS ern OF CARLISLE —a cn r Defendants un r-33 <c) -_ > Z p t� G c' DEFENDANT'S ANSWER TO PLAINTIFFS' COMPLAINT IN MANDAIIJS Defendants Borough of Carlisle and Ms. Stacy Hamilton, Open Records Officer, (collectively"Defendants") hereby answers plaintiff Earl Drack's Complaint in Mandamus as follows, denying each and every averment set forth herein below except as expressly admitted. Plaintiff's Complaint has not been pled pursuant to Pa.R.C. 1022, which requires that every pleading shall be divided into paragraphs and numbered consecutively. Defendants therefore respond to plaintiffs Complaint numbering each paragraph as if his Complaint is numbered consecutively. PLAINTIFF AND DEFENDANT 1. Admitted upon information and belief. 1 2. Admitted. FACTS OF THE CASE 3. Admitted in part and denied in part. It is admitted that Plaintiff submitted a request to the Borough seeking records the requests of a document the contents of which speaks for themselves and any inconsistent characterization thereof is denied. It is denied that the Borough "purportedly" granted access to the requested records. The Borough did in fact provide the Plaintiff access to those records which were in its possession at that time. The Borough was not, and is still not, in possession of the procedures used to calibrate the ENRADD device. 4. Denied as stated. It is admitted that Plaintiff timely filed an appeal regarding the documents provided in response to his request. The directives or communications from the OOR and documents submitted by the Borough are documents the content of which speaks for themselves and any inconsistent characterization thereof is denied. 5. Denied as stated. It is admitted that the OOR issued a determination in this matter. The determination of the OOR as a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 6. Denied as stated. The conclusion of the OOR is contained in the document the content of which speaks for itself and any inconsistent characterization thereof is denied. 7. Admitted the Plaintiff has attached a copy of the final determination to his Complaint as Exhibit"A". 8. Admitted in part and denied in part. It is admitted that Defendants did not appeal the final determination of the OOR. All other averments of this paragraph are denied. 2 DUTY OF DEFENDANT AND REFUSAL 9. Denied as stated. The directive of the OOR is contained in the document the content of which speaks for itself and any inconsistent characterization thereof is denied. By way of further response it is admitted that plaintiff contacted the borough regarding the status of documents. The communication from Mr. Drack to the Borough is memorialized in a document the content of which speaks for itself and any inconsistent characterization thereof is denied. By way of further response it is specifically denied that no response was provided to Mr. Drack regarding the status request. 10. Denied as stated. The communication from Plaintiff to Defendants is memorialized in a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 11. Denied as stated. The communication from the Solicitor for the Borough of Carlisle is contained in a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 12. Denied as stated. The communication from the Solicitor for the Borough of Carlisle is contained in a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 13. Denied as stated. The July 3, 2013 communication from Plaintiff to the Borough Solicitor is contained in a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 14. Denied as stated. The communication from the Solicitor for the Borough of Carlisle is contained in a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 3 15. Denied as stated. The communication from the Solicitor for the Borough of Carlisle is contained in a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 16. Denied as stated the communication from Plaintiff to the Borough Solicitor on July 5 is contained in a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 17. The communication from Drack to the Borough Open Records Officer of July 13, 2013 is a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 18. Denied as stated. It is denied that Drack received no response from the Borough regarding the documents requested. By way of further response, the communication of July 18, 2013 is a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 19. Denied as stated. The response of the Solicitor dated July 19, 2013 is a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 20. The communication of Mr. Drack with the Borough Solicitor on July 19, 2013 is contained in a document the content of which speaks for itself and any inconsistent characterization thereof is denied. 21. Denied as stated. It is admitted that only the Plaintiff has attached in the exhibit purporting to be the complete email communication thread between Mr. Drack and the Borough Solicitor. All other averments of this paragraph are specifically denied. 4 INTEREST OF THE PLAINTIFF 22. Denied. The averments of this paragraph contain conclusions of law to which no response is required and thus they are denied. DAMAGES, PENALTIES,FEES, COSTS 23. Admitted. 24. Denied. The averments of this paragraph contain conclusions of law to which no response is required and thus they are denied. By way of further response it is specifically denied that the Plaintiff is entitled to a civil penalty of$1,500.00 for Defendants alleged bad faith. At no time did Defendant act in bad faith. Defendants have made an attempt to secure the responsive records as required by the Right to Know Law and their inability to respond to Plaintiff is not based in bad faith. Wherefore, Defendants respectfully request that this Court grant judgment in their favor and against the Plaintiff on the Complaint together with costs and expenses. OTHER ADEQUATE REMEDY AT LAW 25. Denied. The averments of this paragraph contain conclusions of law to which no response is required and thus they are denied. PRAYER 26. Denied. The averments of paragraph 26 contain a prayer for relief and conclusions of law to which no response is required. By way of further response it is specifically denied that the Plaintiff is entitled to a civil penalty of$1,500.00 for Defendants alleged bad faith and an additional civil penalty of$500.00 per day until the records are provided. Defendants have 5 attempted to obtain the requested documents in order to provide same to Plaintiff, therefore they had not acted in bad faith and Plaintiff is not entitled to civil penalties. Wherefore, Defendants request that this Court grant judgment in their favor and against the Plaintiff on the Complaint together with costs and expenses. NEW MATTER 27. Answering Defendants hereby incorporate herein by reference the averments and denials contained in paragraphs 1 through 26 of the forgoing Answer as if same were fully set forth herein. 28. Plaintiffs' Complaint fails to state a cause of action upon which relief can be granted. 29. Pursuant to the statutory language set forth in 65 P.S. §67.1305(a), recovery is not applicable in the instant case. 30. Pursuant to the statutory language set forth in 65 P.S. §67.1305(b), recovery is not applicable in the instant case. Wherefore, Defendants request that this Court grant judgment in their favor and against the Plaintiff on the Complaint together with costs and expenses. THE MACMAIN LAW GRO ash' C / Dated: October 9, 2013 B • P Brian auser, Esquire Attorney ID#203495 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Defendants 6 THE MACMAIN GROUP, LLC By: David J. MacMain, Esquire Attorneys for Defendants Borough of Carlisle Attorney I.D. #59320 and Ms. Stacy Hamilton, Open Records Officer By: Brian Leinhauser, Esquire Attorney I.D. #203945 101 Lindenwood Drive Suite 160 Malvern, PA 19355 (484)-318-7106 EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff . : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW vs. . : NO. 15-5436 MS. STACY HAMILTON OPEN . RECORDS OFFICER AND BOROUGH : COMPLAINT IN MANDAMUS OF CARLISLE Defendants . CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Answer to Plaintiff's Complaint via United States First Class Mail, Postage Pre-Paid, upon the following: Earle Drack 111 Bertolet School Road Spring City,PA 19475 THE MACMAIN AW GROUP, LLC < 4110 1 Dated: October 9, 2013 By: 110 : an Leinhauser, Esquire Attorney ID#203495 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Defendants EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION-LAW MS. STACY HAMILTON OPEN : NO.-1-3-76636- ; - RECORDS OFFICER AND BOROUGH ; OF CARLISLE, : COMPLAINT IN MANDAMUS �- r Defendants °` '3 • =3 -�, L_3 v. M .t` YIS/COWDEN GROUP, INC. ''` ADDITIONAL DEFENDANT,YIS/COWDEN GROUP, INC., ANSWER AND NEW MATTER TO THIRD PARTY JOINDER COMPLAINT OF STACY HAMILTON, OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE NOW COMES, YIS/Cowden Group, Inc., ("Additional Defendants"), by and through their attorneys Mathers & Stapp, P.C., filing the following Answer to the above referenced Third Party Joinder Complaint: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part, denied in part. By way of further answer, the proper address for YIS/Cowden Group, Inc. is 1100 North Hartley Street, York, PA 17404. It is admitted that YIS/Cowden Group, Inc. is a Pennsylvania business corporation and that it sells, repairs and calibrates speed timing devices including the ENRADD EJU-91. By way of further answer, YIS/Cowden Group, Inc. sells, repairs and calibrates the ENRADD EJU- 91 Wireless System, which is the subject of the current right-to-know request. 5. Admitted. 6. It is admitted that the Borough forwarded the Plaintiff's right-to-know request to YIS/Cowden Group, Inc. It is denied that YIS/Cowden Group, Inc. is"in possession of the procedures requested by the Plaintiff' as is more fully set forth in the attached New Matter. 7. Denied. To the contrary, YIS/Cowden Group, Inc. wishes to comply with the Right-to- Know Law; however YIS/Cowden Group, Inc. did not provide the Borough of Carlisle with such documents as Earle Drack apparently requests, as is more fully set forth in the attached New Matter. Additionally, as set forth in the attached New Matter, YIS/Cowden Group, Inc. will provide its internal notes for its training of its technicians on calibrating the wireless system. It is denied that YIS/Cowden Group, Inc. refused or continues to refuse to provide copies of the procedures for the ENRADD device. As is set forth in the attached New Matter, the procedures used for the proper calibration of the ENRADD wireless device are set forth in Title 67 of the PA Code Section 105.51, a copy of which is attached hereto. This is public record. 8. Neither admitted nor denied as proof is in the exclusive control of an adverse party and proof is demanded at trial. By way of further answer, it is admitted that YIS/Cowden Group, Inc. did not provide the Borough of Carlisle with any written calibration procedures, as the procedures used are set forth in Title 67 of the PA Code Section 105.51, a matter of public record. 9. No answer required as the pleadings speak for themselves. 10. Neither admitted nor denied as proof is in control of an adverse party. 11. The decision of the Office of Open Records speaks for itself. 12. Denied that YIS/Cowden Group, Inc. has refused nor does it continue to refuse copies of procedures for the ENRADD device. As is set forth in the attached New Matter, these procedures are set forth in the PA Code. As is further set forth in the attached New Matter, YIS/Cowden Group, Inc. attaches hereto it internal training notes used in training their own technicians. 13. Denied. To the contrary and as set forth in the attached New Matter, YIS/Cowden Group, Inc. has not refused to provide documents given to the Borough. 14. No answer required as the pleadings speak for themselves. Defendant YIS/Cowden Group, Inc. denies that the subject request for civil penalties has anything to do with the response of YIS/Cowden Group, Inc., but rather is an indication of a repeated and deliberate campaign of the Plaintiff, Earle Drack,to adversely impact the business of YIS/Cowden Group, Inc. 15. It is admitted that the Borough of Carlisle did not act in bad faith as they were not provided with any documents to disclose, for reasons set forth above and in the attached New Matter. 16. It is denied that it should be judicially determined that Plaintiff, Earle Drack, is entitled to any relief for civil penalties or otherwise. It is further denied that YIS/Cowden Group, Inc. should be liable for any penalties as it is further denied that Plaintiff, Earle Drack, has suffered any losses or damages, proof to the contrary is demanded at trial. WHEREFORE, YIS/Cowden Group, Inc. prays this Honorable Court to dismiss the subject Complaint and the subject Third Party Joinder Complaint. NEW MATTER 17. Averments 1-16 above, as answered, are incorporated hereunder. 18. Attached hereto marked Exhibit"A" is Title 67 PA Code Section 105 relating to "Mechanical, Electrical and Electronic Speed Timing Devices." Subsection 105.56 thereof, sets forth in detail the "Manner of calibration and testing." This manner of calibration and testing applies to all speed timing devices which measure elapsed time between two sensors, approved for use in the Commonwealth of Pennsylvania. 19. Attached hereto marked Exhibit"B" is the notification of approval of the ENRADD EJU- 91 Wireless System manufactured by YIS/Cowden Group, Inc. 20. The procedures used for calibrating and testing the ENRADD EJU-91 Wireless System are those set forth in 67 PA Code §105.56 with delay time adjusted for three foot spacing per 67 PA Code §105.56 (e)(2)(ii) and (iii). The delay time interval for three foot spacing, by industry standards and as set forth under subsection(d)(iii), is adjusted to 2045. 21. As all of the foregoing procedures and manners of calibration and testing are expressly set forth in section 105.56 of Title 67 of PA Code, as hereinabove set forth, no disclosable documents exists either with the Borough of Carlisle or YIS/Cowden Group, Inc. As repeatedly stated and pled by YIS/Cowden Group, Inc., these procedures exist as a matter of public record in Title 67 of PA Code and YIS/Cowden Group, Inc. follows those approved procedures. 22. In the PENDOT approval process, there is no requirement that YIS/Cowden Group, Inc. produce any documentation of calibration procedures. YIS/Cowden Group, Inc. perceives that this is due to the fact that these procedures are listed in Title 67 PA Code §105, subject only to the adjustment of the delay time interval as hereinabove set forth. These are industry standards and not specific to the YIS/Cowden Group, Inc. process. 23. Attached hereto marked Exhibit"C" are the internal training notes that YIS/Cowden Group, Inc. uses to prepare its technicians to check calibration of units in the field. These training notes are talking points used by company personnel to train technicians and therefore there was never a need to place these training notes in the possession of the Borough of Carlisle as YIS/Cowden Group, Inc. is charged with the training of its employees'to perform certification of the said speed timing device. 24. For the reasons hereinabove set forth, it is specifically averred that YIS/Cowden Group, Inc. never refused to produce any required documents under the Right-to-Know Law. WHEREFORE, YIS/Cowden Group, Inc.,respectfully prays this Honorable Court to dismiss the Plaintiff's Complaint and the subject Third Party Defendant's Complaint. ' = .ectfully submitted, Mittiile> Daniel K. Mathers, Esquire Mathers & Stapp, P.C. Attorney for YIS/Cowden Group, Inc. ID #29950 416 Pine Street, Suite 308 Williamsport, PA 17701 dmathers@MathersStapp.com (570) 326-5171 VERIFICATION I, James Cowden, hereby state and aver that I have read the foregoing Additional Defendant, YIS/Cowden Group, Inc. Answer and New Matter to Third Party Joinder Complaint of Stacy Hamilton, Open Records Officer and Borough of Carlisle which has been drafted by my counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief although the language is that of my counsel and to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. • es Cowden Ch. 105 SPEED-TIMING DEVICES 67 § 105.1 CHAPTER 105. MECHANICAL, ELECTRICAL AND ELECTRONIC SPEED-TIMING DEVICES Subchap. Sec. A. GENERAL PROVISIONS 105.1 B. ELECTRONIC DEVICES(RADAR) 105.11 C. SPEEDOMETERS 105.31 D. ELECTRONIC DEVICES(NONRADAR)WHICH MEASURE ELAPSED TIME BETWEEN TWO SENSORS 105.51 E. STOPWATCHES 105.71 F. ELECTRONIC DEVICES(NONRADAR)WHICH CALCULATE AVERAGE SPEED BETWEEN ANY TWO POINTS 105.91 Authority The provisions of this Chapter 105 issued under the Vehicle Code, 75 Pa.C.S.§§ 3368 and 6103, unless otherwise noted. Source The provisions of this Chapter 105 adopted August 26, 1977,effective August 27, 1977, 7 Pa.B. 2422;compiled and republished August 1, 1980,effective August 2, 1980,10 Pa.B.3199,unless oth- erwise noted. Notes of Decisions The Department has reclassified VASCAR as an electronic speed-timing (non-radar)device and approved its use by any police officer. Commonwealth v. Smolow, 527 A.2d 131 (Pa.Super. 1987). (Court cited 16 Pa.B.3160(August 23, 1986).) Local police were justified in using the VASCAR-plus device,since this and an earlier regulation consistently classified the device as electrical-mechanical,and the burden therefore was on appellant to provide expert or scientific evidence from which the trial court could determine whether the device was electronic or electrical.Commonwealth v. Smolow,527 A.2d 131 (Pa.Super. 1987).(Court cited 15 Pa.B. 321 (January 26, 1985).) Subchapter A. GENERAL PROVISIONS Sec. 105.1. Purpose. § 105.1. Purpose. This chapter governs the calibrating and testing of mechanical, electrical and electronic speed-timing devices by stations appointed by the Department. Source The provisions of this§ 105.1 adopted August 26, 1977,effective August 27, 1977,7 Pa.B.2422; amended August 18,1978,effective August 19,1978,8 Pa.B.2311;republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B. 3199;amended January 15, 1982,effective January 16, 1982, 12 Pa.B. 299;amended March 30, 1984,effective March 31, 1984, 14 Pa.B. 1089; amended 105-1 (218207) No. 262 Sep. 96 h x1 .1T 67 § 105.11 DEPARTMENT OF TRANSPORTATION Pt. I August 22, 1986,effective August 23, 1986, 16 Pa.B.3119;readopted December 4, 1987,effective December 5, 1987, 17 Pa.B. 5051.Immediately preceding text appears at serial page(111301). Subchapter B. ELECTRONIC DEVICES (RADAR) Sec. 105.11. [Reserved]. 105.12. [Reserved]. 105.12a. Application of subchapter. 105.13. Operation of maintenance and calibration stations. 105.14. Required equipment. 105.15. Calibration and testing procedure. Source The provisions of this Subchapter B amended through January 14, 1982, effective January 16, 1982, 12 Pa.B. 299, unless otherwise noted. Immediately preceding text appears at serial pages (56472)to(56477)and(56480)to(56482). Notes of Decisions Since the former PennDot regulation,67 Pa.Code§ 337.25,classifying ESP Machine(utilizes two sensors taped across street,connected to processing and display unit,to measure vehicle speed)as an electrical or mechanical device,rather than electronic device,was an interpretive rather than legisla- tive regulation,the Court was not bound thereby,the court concluded that the ESP Machine was an electronic device which could not be used by local police. Commonwealth v.DePasquale,501 A.2d 626(Pa. 1985). § 105.11. [Reserved]. Source The provisions of this§ 105.11 adopted August 26, 1977,effective August 27, 1977,7 Pa.B.2422; amended November 9, 1979,effective November 10, 1979,9 Pa.B. 3748;amended May 30, 1980, effective May 31, 1980, 10 Pa.B.2162;republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B. 3199; amended January 15, 1982, effective January 16, 1982, 12 Pa.B. 299; reserved March 30, 1984, effective March 31, 1984, 14 Pa.B. 1089. Immediately preceding text appears at serial pages(68566)to(68567). 105.12. Reserved Source The provisions of this§ 105.12 adopted August 26,1977,effective August 27, 1977,7 Pa.B.2422; amended December I, 1978,effective December 2, 1978,8 Pa.B. 3439;amended August 24, 1979, effective August 25, 1979,9 Pa.B.2893;republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B. 3199; amended January 15, 1982, effective January 16, 1982, 12 Pa.B. 299; reserved March 30, 1984, effective March 31, 1984, 14 Pa.B. 1089. Immediately preceding text appears at serial page(68567). 105-2 (218208) No.262 Sep. 96 Copyright x 1996 Commonwealth of Pennsylvania Ch. 105 SPEED-TIMING DEVICES 67 § 105.12a § 105.12a. Application of subchapter. This subchapter governs the calibration and testing of electronic devices- RADAR—for use only by members of the State Police, under 75 Pa.C.S. § 3368(c)(2) (relating to speed timing devices). Source The provisions of this§ 105.12a adopted February 17, 1989,effective February 18,1989, 19 Pa.B. 640. § 105.13. Operation of maintenance and calibration stations. (a) Maintenance and calibration. Maintenance and calibration of electronic devices shall be provided, as necessary,upon notice by the State Police. (b) Hours. Stations for the maintenance and calibration of electronic devices shall be operated during a regular work week Monday through Friday during the hours of 8 a.m. to 5 p.m. (c) Personnel. Every station for the maintenance and calibration of electronic devices shall employ on a full time basis: (1) An electrical engineer. (2) An associate engineer, or technician who possesses a valid FCC Radio Telephone or Radio Telegraph License General, First or Second Class. (d) Presumption of accuracy. Either the electrical engineer,associate engineer or technician shall be present at the time that the test is conducted. The certifica- tion that the electronic speed-timing device has been tested and found to be accu- rate shall create a presumption that the requirements of this subsection have been fulfilled. Adjustments and repairs shall be made in conformance with 47 CFR 90.433 (relating to operator requirements). (e) [Reserved]. (f) Damage to or loss of device. The station for the maintenance and calibra- tion of electronic devices is responsible for damages or losses of electronic devices while they are being serviced or calibrated. Source The provisions of this§ 105.13 adopted August 26,1977,effective August 27, 1977,7 P .B.2422; amended December 30, 1977,effective December 31, 1977,7 Pa.B.2982;republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B.3199;amended January 15, 1982,effective Janu- ary 16,1982, 12 Pa.B.299;readopted December 4, 1987,effective December 5,1987,17 Pa.B.5051; amended February 17, 1989,effective February 18, 1989, 19 Pa.B. 640.Immediately preceding text appears at serial pages(122744)to(122745). Notes of Decisions Commonwealth's reliance solely upon certificate of accuracy and calibration to prove that speed- timing device had been approved by Department was insufficient to establish element of speeding offense.Commonwealth v.Kittelberger,616 A.2d(Pa.Super. 1992). 105-3 (246743) No.287 Oct. 98 67 § 105.14 DEPARTMENT OF TRANSPORTATION Pt.I § 105.14. Required equipment. The following equipment is required for the operation of a maintenance and calibration station. Suitable manufacturers and model numbers are listed, how- ever, equivalent equipment or an alternative technique approved by the Commu- nications Division, State Police is acceptable: (1) Power supply—Hewlett Packard Model 6177C. (2) Frequency counter—Hewlett Packard Model 5314A. (3) Power Meter and Thermistor Mounts—Hewlett Packard Models 432A, X486A and K486A. (4) Multimeter—Hewlett Packard Model 410C. (5) AC Voltmeter—Hewlett Packard Model 400D or Leader Model LMV- 181A. (6) Function Generator—Hewlett Packard Model 3311A. (7) Variable Attenuators—Hewlett Packard Models X382A and K382A. (8) RF Absorption Chamber—See Appendix A, Figure 1. (9) Frequency Counter—Hewlett Packard Models 5342A or 5343A. (10) Calibrated Antennas—Narda Models 638 and 640. (11) Coaxial Adapters—Narda Models 4601 and 4608B. (12) Pin Diode Switch—General Microwave F9114. (13) Microphone—Electrovoice 631A. (14) 4 Watt HF or VHF—AM Modulated Signal Source. (15) Base Loaded Whip Antenna Tuned to paragraph (14). Source The provisions of this§ 105.14 adopted August 26,1977,effective August 27,1977,7 Pa.B.2422; republished and compiled August I, 1980,effective August 2, 1980, 10 Pa.B.3199;amended January 15, 1982,effective January 16, 1982,12 Pa.B.299;readopted December 4,1987,effective December 5, 1987, 17 Pa.B. 5051; amended February 17, 1989, effective February 18, 1989, 19 Pa.B. 640. Immediately preceding text appears at serial pages(122745)to(122748). § 105.15. Calibration and testing procedure. (a) General. An electronic device shall be calibrated and tested as follows: (1)` Power output. Relative power output shall be measured in the follow- ing manner: (i) Adjust dc power supply to 13.6 vdc. (ii) With equipment still connected as in Appendix A, Figure 2,position (1),position antenna system along each axis for maximum coupling. Simul- taneously increase attenuation to avoid overloading the thermister amount. (iii) Adjust microwave variable attenuator for maximum attenuation and then calibrate microwave power meter. (iv) Reduce attenuation until microwave power meter reads 0 dB. 105-4 (246744) No.287 Oct. 98 Copyright 2'1998 Commonwealth of Pennsvlvanio Ch. 105 SPEED-TIMING DEVICES 67 § 105.15 (v) Calculate power output taking into consideration the gain of the horn, and attenuation of the microwave variable attenuator, added algebra- ically with the power level indicated on the power meter. Example: Attenuator 33.6 dB Power Meter Reading 0.0 dB Gain of Horn 33.6 dB —16.7 dB Relative Power 16.9 dB =48.98 mW (2) Transmitted frequency. Transmitted frequency shall be measured in the following manner: (i) Adjust variable dc power supply to 13.6 vdc. (ii) With the equipment connected as in Appendix A, Figure 2,position (2) adjust the microwave variable attenuator for a stable readout on fre- quency counter. (iii) Record transmitter frequency as indicated on the microwave fre- quency counter. Frequency shall be within .2% of licensed frequency. (iv) Vary the applied voltage from 11 vdc to 14 vdc. Frequency shall remain within .2% of licensed frequency. (3) Stability test. The stability test shall be conducted in the following manner: (i) Adjust variable dc power supply to 13.6 vdc. (ii) Connect equipment as in Appendix A, Figure 2,position (3). (iii) Adjust square wave output of function generator to the switching level of the pin diode switch. While observing the frequency counter, adjust frequency of function generator to 1726 Hz (X-Band) or 3961 Hz (K-Band) or 5692 Hz (Ka-Band). (iv) Vary applied dc voltage from 11 vdc to 14 vdc while observing indicated speed on device being tested. Indicated speed may not vary. (4) Relative sensitivity. Relative sensitivity shall be measured in the follow- ing manner: (i) Adjust variable cc power supply to 13.6 vdc. (ii) Connect equipment as in Appendix A, Figure 2, position (3). (iii) Adjust range control if applicable on electronic device for maximum range. (iv) Adjust square wave output of function generator, to switching level of pin diode modulator. While observing frequency counter,adjust frequency of function generator so that device being tested indicates 55 mph. (v) Slowly increase attenuation of microwave variable attenuator, until speed reading of 55 mph of device being tested becomes erratic. (vi) Readjust position of device for maximum coupling. 105-5 (246745) No. 287 Oct. 98 67 § 105.15 DEPARTMENT OF TRANSPORTATION Pt. I (vii) Repeat steps in subparagraphs(v) and(vi)until no further increase is possible,without losing display. Maximum coupling is imperative. (viii) Calculate relative sensitivity of device being tested,taking into con- sideration attenuation or gain of each component in the microwave path.The reflected signal passes through devices two times therefore values shall be multiplied by two. Example. Gain of Horn 16.7 dB x 2 +33.4 dB Attenuation 33 dB x 2 —66 dB Relative Sensitivity —32.6 dB (5) Accuracy test. The accuracy test shall be conducted in the following manner: (i) Adjust variable do power supply to 13.6 vdc. (ii) Connect equipment as in Appendix A, Figure 2,position (3). (iii) Adjust square wave output of function generator,to switching level of pin diode modulator. While observing frequency counter, adjust function generator for an indicated speed of 55 mph. (iv) Adjust microwave variable attenuator and range control for stable display. (v) While observing the frequency counter, adjust the function genera- tor to each test frequency. Note and record the speed indicated on the elec- tronic device display. Each test frequency shall produce the correct speed in mph within the limits of+0, —1 mph. Test Frequencies (in Hz) Indicated Test X Band K Band Ka Band Speed mph 628 1440 2070 20 785 1801 2588 25 942 2161 3105 30 1099 2521 3622 35 1256 2881 4140 40 1412 3241 4657 45 1569 3601 5175 50 1726 3961 5692 55 1883 4321 6210 60 2040 4681 6727 65 2197 5042 7246 70 2354 5402 7762 75 2511 5762 8281 80 2668 6122 8797 85 105-6 (246746) No.287 Oct. 98 Copvright z 1998 Commonwealth of Pennsvlvania Ch. 105 SPEED-TIMING DEVICES 67 § 105.15 Indicated Test X Band K Band Ka Band Speed mph 2825 6482 9316 90 2982 6842 9832 95 3139 7202 10351 100 3296 7562 10867 105 3453 7922 11385 110 3610 8283 11902 115 3767 8643 12420 120 3924 9003 12937 125 4081 9363 13455 130 4238 9723 13972 135 4394 10083 14490 140 (6) Tuning fork test. The tuning fork test shall be conducted in the follow- ing manner: (i) Connect the microphone, ac voltmeter and frequency counter as depicted in Appendix A, Figure 2. (ii) Strike the tuning fork on a block of wood and hold the vibrating tuning fork close to the microphone. (iii) Adjust the gain of the audio amplifier for a stable display on the frequency counter. (iv) Note the displayed frequency on the frequency counter and convert it into miles per hour. The calculated speed shall be the same as that indi- cated on the tuning fork or within 1%. The tuning fork shall be at room tem- perature, or approximately 70° F., when this measurement is taken. (v) Strike the tuning fork on a block of wood and hold it close to the device antenna. The indicated speed shall be stable, and shall be that of the tuning fork. (7) Rejection of extraneous RF fields. (i) Adjust variable dc power supply to 13.6 vdc. (ii) Position the base loaded antenna 1 meter from the radar assembly. (iii) Activate the 4 watt signal source, modulated at 100%, 1726 Hz (X- Band) or 3961 Hz (K-Band) or 5692 Hz (Ka-Band). (iv) There may be no readout on the electronic device indicator, related to the extraneous RF field. (b) Maintenance work-order. A maintenance work-order containing the fol- lowing information shall be completed and forwarded to the Communications Division: (1) Serial number of the electronic device. (2) Work performed and date of same. (3) Original complaint, if any. (4) Actual repairs performed, if any. 105-7 (246747) No. 287 Oct. 98 67 § 105.15 DEPARTMENT OF TRANSPORTATION Pt. I (5) Amount of time taken to repair unit. (6) Manufacturer's stock number of all equipment replaced. (7) Total labor cost. (8) Individual part prices for all equipment replaced. (9) The name and address, class, serial number and expiration date of the operator's license of the individual conducting the test. The testing individual shall also sign and date the maintenance work order. Maintenance performed shall conform with FCC rules and regulations pertaining to radio location devices. (c) Certificates of accuracy. These forms, provided by the Department, shall be filed for each electronic device calibrated and tested. (1) Original shall be filed at the State Police station. (2) One duplicate copy shall be retained by the maintenance and calibra- tion station for at least 2 years. (3) One duplicate copy shall be forwarded to the Communications Divi- sion, State Police. (4) One duplicate copy shall accompany the electronic device. (5) A duplicate copy, executed and signed in the same manner as the origi- nal, has the same force and effect as the original. (d) Electronic device-radar-calibration. Technical data forms provided by the State Police Communications Division, shall be filed for each electronic device calibrated and tested. (1) One original shall be forwarded to the Communications Division,State Police. (2) One duplicate copy shall be retained by the maintenance and calibra- tion station for at least 2 years. (3) A duplicate copy, executed and signed in the same manner as the origi- nal, has the same force and effect as the original. Source The provisions of this§ 105.15 adopted August 26,1977,effective August 27, 1977,7 Pa.B.2422; corrected September 2, 1977,effective August 27, 1977,7 Pa.B. 2564; amended August 18, 1978, effective August 19, 1978, 8 Pa.B. 2310; amended August 18, 1978, effective August 19, 1978,8 Pa.B. 2310; republished and compiled August 1, 1980, effective August 2, 1980, 10 Pa.B. 3199; amended January 15, 1982,effective January 16, 1982, 12 Pa.B.299;amended June 18, 1982,effec- tive June 19, 1982, 12 Pa.B. 1875; corrected June 29, 1984, effective January 16, 1982, 14 Pa.B. 2267; readopted December 4, 1987,effective December 5, 1987, 17 Pa.B.5051;amended February 17, 1989, effective February 18, 1989, 19 Pa.B. 640; amended July 31, 1998, effective August 1, 1998,28 Pa.B.3588.Immediately preceding text appears at serial pages(218210)to(218214). 105-8 (246748) No.287 Oct. 98 Copyright 1998 Commonwealth of Pennsylvania Ch. 105 SPEED-TIMING DEVICES 67 § 105.31 Subchapter C. SPEEDOMETERS Sec. 105.31. Appointment of speedometer testing station. 105.32. Operation of speedometer testing station. 105.33. Required equipment. 105.34. Manner of testing speedometers. 105.35. [Reserved]. § 105.31. Appointment of speedometer testing station. (a) Application. Application for appointment as a speedometer testing station shall be made on a form provided by the Department. (b) Applicant. Every applicant shall be at least 18 years of age. (c) Place of business. Every applicant shall have an established place of business properly equipped to conduct speedometer tests and repairs. Source The provisions of this§ 105.31 adopted August 26,1977,effective August 27, 1977,7 Pa.B.2422; republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B.3199;readopted Decem- ber 4, 1987,effective December 5, 1987, 17 Pa.B.5051;amended February 17, 1989,effective Feb- ruary 18, 1989, 19 Pa.B.640.Immediately preceding text appears at serial page(122753). § 105.32. Operation of speedometer testing station. (a) Testing and repair. Testing and repair of speedometers shall be provided, as necessary,upon notice by the police. (b) Hours. Speedometer testing stations shall be operated during a regular work week, Monday through Friday during the hours of 8 a.m. to 5 p.m. (c) Personnel. A speedometer testing station shall employ at least one speed- ometer inspection mechanic certified as follows: (1) Application for certification shall be made on a form provided by the Department. (2) The applicant shall present proof of education or experience in the test- ing and repair of speedometers. (3) The applicant shall be at least 18 years of age. (d) Location. Speedometer testing and repair shall take place at approved speedometer testing station, except that: (1) When absolutely necessary, it is permissible to delegate the functions to another approved speedometer testing station. The delegation, including the name and address of the other station, shall be kept on file for 1 year. (2) Upon approval of the Department, a speedometer testing station may operate one or more mobile test units of a type approved by the Department. 105-9 (218215) No. 262 Sep. 96 67 § 105.33 DEPARTMENT OF TRANSPORTATION Pt. I Source The provisions of this§ 105.32 adopted August 26,1977,effective August 27, 1977,7 Pa.B.2422; republished and compiled August 1,1980,effective August 2,1980,I0 Pa.B.3199;readopted Decem- ber 4, 1987,effective December 5, 1987, 17 Pa.B.5051;amended February 17, 1989,effective Feb- ruary 18, 1989, 19 Pa.B.640. Immediately preceding text appears at serial page(122754). § 105.33. Required equipment. (a) Items.The following items of equipment are required for the operation of a speedometer testing station: (I) Sufficient hand tools to make needed repairs or adjustments. (2) A dynamometer of a type approved by the Department. (3) A Speed-Master Quartz Speedometer Tester. (4) A 650-H-I Stewart-Warner Speedometer Calibrator. (i) One flexible shaft 108 inches in length to reach from the calibrator to the vehicle transmission or speedometer head. (ii) Two 12-inch flexible shafts to fit Chrysler speedometer. (iii) One 12-inch flexible shaft to fit Ford speedometer. (iv) One 12-inch flexible shaft to fit older speedometers with 5/8-18 male thread. (v) One 757-AD Stewart-Warner strobetachometer, to be used with a fluorescent light using 60 cycle alternating current voltage. (vi) One 312-12175y S.S. White-Mile-O-Meter revolution counter. (b) Periodic testing of speedometer testing equipment. Periodic testing of equipment shall be conducted as follows: (I) Interval. Speedometer testing equipment shall be tested and adjusted for accuracy at least once every 60 days. (2) Forms. A form provided by the Department shall be completed by a certified speedometer inspection mechanic after each periodic test. The form shall be released to the State Police Inspection Station Supervisor or Depart- ment representatives, if verification of the test is necessary. A duplicate copy, executed and signed in the same manner as the original,has the same force and effect as the original. Source The provisions of this§ 105.33 adopted August 26,1977,effective August 2/,1977,7 Pa.B.2422; amended June 23, 1978,effective June 24, 1978,8 Pa.B. 1692;republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B. 3199;readopted December 4, 1987,effective December 5, 1987, 17 Pa.B.5051;amended February 17, 1989,effective February 18, 1989, 19 Pa.B.640.Imme- diately preceding text appears at serial pages(122754)to(122755). § 105.34. Manner of testing speedometers. (a) Accuracy. A test speedometer shall be tested for accuracy and, if neces- sary, repaired and adjusted to obtain the greatest possible degree of accuracy. Testing shall include one of the following: 105-10 (218216) No.262 Sep. 96 Copyright°1996 Commonwealth of Pennsylvania • • Ch. 105 SPEED-TIMING DEVICES 67 § 105.34 (1) A dynamometer test. (2) A Speed-Master Quartz Speedometer Tester. (3) A Stewart-Warner Speedometer Calibrator and required components. (i) It will be necessary to have a measured or surveyed mile laid out and properly marked. If less than a mile, use Table 1: Table 1 1 mile or 5,280 feet= 1000 cable revolutions 1/2 mile or 2,640 feet= 500 cable revolutions 1/10 mile or 528 feet= 100 cable revolutions (ii) Check the tires on the test vehicle for proper inflation. (iii) Disconnect the speedometer cable from the back of the speedometer in the vehicle. (A) Connect the speedometer cable to the counter. (S. S. White Mile- 0-Meter). (B) Place the vehicle rear wheel centered on line at the beginning of the measured course. (C) Set the counter of the Mile-O-Meter to zero. (D) Drive the vehicle over the measured course. (E) Read the counter and compare it with Table 1. (F) Establish degree or percent of error. In a given measured mile, there should be 1000 cable revolutions.The input speed is slow if less than 1,000. The input speed is fast if more than 1,000. (iv) Disconnect the counter from the speedometer cable on the vehicle. (A) Use the long flexible shaft from the calibrator with the proper 12-inch shaft that permits adopting to fit speedometer head in the vehicle. (B) Proceed to check the speedometer in the vehicle against the mas- ter head on the calibrator at 10 mph increments, beginning at 10 to 100 mph, and record the proper information. (v) Disconnect the calibrator flexible shaft from the rear of the speed head in the vehicle and connect the shaft in the vehicle to the speedometer head in same. The speedometer head in the vehicle being tested can also be tested by disconnecting the flexible shaft at the transmission and connecting it to the long flexible shaft from the calibrator. Then proceed as in subpara- graph (iv)(B). (vi) Information indicated above is based on United States standard of 1,000 cable revolutions per minute =60 mph or 96 kilometers per hour. (4) An examination of the speedometer cables to insure that they work freely and without defect or restriction. (b) Forms. The following forms are required: (1) A speedometer testing station shall permanently display a valid Certifi- cate of Appointment,provided by the Department. 105-11 (218217) No. 262 Sep. 96 67 § 105.35 DEPARTMENT OF TRANSPORTATION Pt. I (2) A Certificate of Speedometer Accuracy,a form provided by the Depart- ment, shall be completed after a speedometer test or repair and signed by the Department speedometer inspection mechanic.A copy of the certificate shall be kept on file at the speedomoter testing station for at least 2 years.A duplicate copy, executed and signed in the same manner as the original, has the same force and effect as the original. Source The provisions of this§ 105.34 adopted August 26,1977,effective August 27, 1977,7 Pa.B.2422; amended June 23, 1978,effective June 24, 1978,8 Pa.B. 1692;republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B. 3199;readopted December 4, 1987,effective December 5, 1987, 17 Pa.B.5051;amended February 17, 1989,effective February 18, 1989, 19 Pa.B.640.Imme- diately preceding text appears at serial pages(122755)to(122756). § 105.35. [Reserved]. Source The provisions of this § 105.35 adopted June 23, 1978, effective June 24, 1978, 8 Pa.B. 1692; amended October 27, 1978, effective October 28, 1978,8 Pa.B. 2918;amended January 26, 1979, effective January 27, 1979,9 Pa.B. 346;amended May 16, 1980,effective May 17, 1980, 10 Pa.B. 1980;republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B.3199;amended January 15, 1982,effective January 16, 1982, 12 Pa.B. 299;amended September 2, 1983,effective September 3, 1983, 13 Pa.B. 2705; amended December 30, 1983,effective December 31, 1983, 13 Pa.B.4021;reserved March 30, 1984,effective March 31, 1984, 14 Pa.B. 1089.Immediately preced- ing text appears at serial pages(83717)to(83722). Subchapter D. ELECTRONIC DEVICES (NONRADAR) WHICH MEASURE ELAPSED TIME BETWEEN TWO SENSORS Sec. 105.51. [Reserved]. 105.52. [Reserved]. 105.52a. Application of subchapter. 105.53. Operation of maintenance and calibration stations. 105.54. Calibration 4orms. 105.55. Testing forms. 105.56. Manner of calibration and testing. Notes of Decisions Since the former PermDot regulation,67 Pa.Code§ 337.25,classifying ESP Machine(utilizes two sensors taped across street,connected to processing and display unit,to measure vehicle speed)as an electrical or mechanical device,rather than electronic device was an interpretive rather than legisla- tive regulation,the Court was not bound thereby,the court concluded that the ESP Machine was an electronic device which could not be used by local police. Commonwealth v.DePasquale,501 A.2d 626(Pa. 1985). 105-12 (218218) No.262 Sep. 96 Copyright t"1996 Commonwealth of Pennsylvania Ch. 105 SPEED-TIMING DEVICES 67 § 105.51 § 105.51. [Reserved]. Source The provisions of this § 105.51 adopted June 23, 1978, effective June 24, 1978, 8 Pa.B. 1692; amended December 15, 1978,effective December 16, 1978,8 Pa.B. 3578;amended May 18, 1979, effective May 19, 1979,9 Pa.B. 1632;republished and compiled August I, 1980,effective August 2, 1980, 10 Pa.B. 3199; amended November 12, 1982, effective November 13, 1982, 12 Pa.B. 3946; reserved March 30, 1984, effective March 31, 1984, 14 Pa.B. 1089. Immediately preceding text appears at serial page(83723). § 105.52. [Reserved]. Source The provisions of this § 105.52 adopted June 23, 1978, effective June 24, 1978, 8 Pa.B. 1692; amended December 15, 1978,effective December 16, 1978, 8 Pa.B. 3578; amended September 28, 1979,effective September 29, 1979,9 Pa.B.3324;amended January 11, 1980,effective January 12, 1980, 10 Pa.B. 131;amended May 10, 1980,effective May 17, 1980, 10 Pa.B. 1980; amended May 30, 1980,effective May 31, 1980, 10 Pa.B.2162;republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B. 3199; amended October 17, 1980, effective October 18, 1980, 10 Pa.B. 4101;amended January 15, 1982,effective January 16, 1982, 12 Pa.B.299;amended May 28, 1982, effective May 29, 1982, 12 Pa.B. 1698;amended November 12, 1982,effective November 13, 1982, 12 Pa.B.3946;amended November 19,1982,effective November 20, 1982, 12 Pa.B.3983;amended September 2, 1983,effective September 3, 1983, 13 Pa.B.2705;amended December 30, 1983,effec- tive December 31, 1983, 13 Pa.B.4021;reserved March 30, 1984,effective March 31, 1984,14 Pa.B. 1089. Immediately preceding text appears at serial pages(83723)to(83724). § 105.52a. Application of subchapter. This subchapter governs the calibrating and testing of electronic devices- nonradar-which measure elapsed time between two sensors, for use by a police officer, under 75 Pa.C.S. § 3368(c)(3) (relating to speed timing devices). Source The provisions of this § 105.52a adopted August 22, 1986, effective August 23, 1986, 16 Pa.B. 3119; readopted December 4, 1987,effective December 5, 1987, 17 Pa.B. 5051;amended February 17, 1989, effective February 18, 1989, 19 Pa.B. 640. Immediately preceding text appears at serial page(122758). § 105.53. Operation of maintenance aqd calibration stations. (a) Maintenance and calibration. Maintenance and calibration of electronic devices governed by this subchapter shall be provided,as necessary,upon request by local police. (b) Hours. Stations for the maintenance and calibration of electronic devices shall be operated during a regular work week, Monday through Friday during the hours of 8 a.m. to 5 p.m. (c) Personnel. A station for the maintenance and calibration of electronic devices shall employ on a full-time basis: (I) An electrical engineer or metrologist. 105-13 (218219) No. 262 Sep. 96 67 § 105.54 DEPARTMENT OF TRANSPORTATION Pt. I (2) An associate engineer, associate metrologist or technician. (d) Presumption of accuracy. Either the electrical engineer, associate engi- neer, metrologist, associate metrologist or technician shall be present at the time the test is conducted. The certification that the electronic speed-timing device has been tested and found to be accurate shall create a presumption that the require- ments of this subsection have been fulfilled. (e) Damage to or loss of device. The station for the maintenance and calibra- tion of electronic devices is responsible for damages or losses of electronic devices while they are being serviced or calibrated. (f) Malfunctioning devices. A malfunctioning electronic device shall be returned to the manufacturer or to a service center approved by the manufacturer and tagged with the date tested,the serial number of the device and a notation of the general condition of the device. (g) Location. Electronic testing and repair shall take place at an approved electronic testing station, except that, upon approval of the Department, an elec- tronic testing station may operate mobile test units of a type approved by the Department. Source The provisions of this § 105.53 adopted June 23, 1978, effective June 24, 1978, 8 Pa.B. 1692; republished and compiled August I, 1980,effective August 2,1980, 10 Pa.B.3199;amended August 22, 1986,effective August 23, 1986, 16 Pa.B.3119;readopted December 4, 1987,effective Decem- ber 5, 1987, 17 Pa.B.5051;amended February 17, 1989,effective February 18, 1989, 19 Pa.B.640. Immediately preceding text appears at serial page(122758). § 105.54. Calibration forms. Certificates of accuracy, provided by the Department, shall be filed for elec- tronic devices calibrated and tested as follows: (1) Original and duplicate shall accompany electronic device. (2) One duplicate copy shall be retained by the maintenance and calibra- tion station for at least 2 years. (3) A duplicate copy,executed and signed in the same manner as the origi- nal, has the same force and effect as the original. Source The provisions of this § 105.54 adopted June 23, 1978,effective June 24, 1978, 8"Pa.B. 1692; republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B.3199;amended August 22, 1986,effective August 23, 1986, 16 Pa.B.3119;readopted December 4, 1987,effective Decem- ber 5, 1987, 17 Pa.B.5051;amended February 17, 1989,effective February 18, 1989, 19 Pa.B.640. Immediately preceding text appears at serial pages(122758)to(122759). § 105.55. Testing forms. Technical data forms,provided by the Department, shall be filed for electronic devices tested as follows: (1) One original shall accompany the electronic device. 105-14 (218220) No.262 Sep. 96 Copyright /996 Commonwealth if Pennsylvania Ch. 105 SPEED-TIMING DEVICES 67 § 105.56 (2) One duplicate copy shall be retained by the maintenance and calibra- tion station for at least 2 years. (3) A duplicate copy,executed and signed in the same manner as the origi- nal, has the same force and effect as the original. Source The provisions of this § 105.55 adopted June 23, 1978, effective June 24, 1978, 8 Pa.B. 1692; republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B.3199;amended August 22, 1986,effective August 23, 1986, 16 Pa.B. 3119;readopted December 4, 1987,effective Decem- ber 5, 1987, 17 Pa.B.5051;amended February 17, 1989,effective February 18, 1989, 19 Pa.B.640. Immediately preceding text appears at serial page(122759). § 105.56. Manner of calibration and testing. (a) Electrical Speed-Timing System—Manufactured by Richard Hageman, 98 South Penn Dixie Road,Nazareth, Pennsylvania. Calibration requirements are as follows: (1) Required equipment. The following equipment or equivalent substitute equipment is required for calibration: (i) USM 207 Universal Counter. (ii) STALO E1010V. (iii) Miscellaneous test leads. (2) Calibration procedure. (See Appendix A, Figure 3 for equipment set up.) The calibration procedure shall be as follows: (i) Set counter (USM 207) to Time(B-C) Mode. (ii) Throw start switch on USM 207 and Electrical Speed-Timing Sys- tem will start at same time. (iii) Switch start override on. (iv) Throw stop switch, stopping USM 207 and Electrical Speed-Timing System at same time. (v) Read and record elapsed time of both devices. (vi) Miles per hour(mph) is calculated as follows: (A) Feet per second = measured distance—in feet—divided by time elapsed—in seconds. (B) mph = .6818 x feet per second. (vii) If the readout on the face of the Electrical Speed-Timing System differs by more than 1 mph, the unit shall be returned to the manufacturer and tagged with the date tested, the serial number of the device and a nota- tion of the general condition of the device. (b) Model TK 100, Excessive Speed Preventor(ESP)—Manufactured by Sys- tems Innovation,Inc., Steam Hollow Road,R.D. 2 and Hallstead Plaza,Route 11, Hallstead, Pennsylvania. (1) Required equipment. The following equipment or an equivalent substi- tute is required for calibration: 105-15 (219079) No. 263 Oct. 96 • 67 § 105.56 DEPARTMENT OF TRANSPORTATION Pt. I (i) Test Cable—Model TK 100-01. Manufactured by Systems Innova- tion, Inc. (See Appendix A, Figure 4 for an equivalent substitute.) (ii) Power supply. Voltage output-11 to 14 volts do .5 amp. (See Appendix A, Figure 5). (iii) Frequency counter. Data Precision—Model 5740 or equivalent. (See Appendix A, Figure 5). (iv) Digital delay generator. Range: .1 ms to 800 ms;Accuracy: +or — .1%. (See Appendix A, Figure 6). (2) Calibration procedure. The calibration procedure shall be as follows: (i) Interconnect the ESP Model TK 100 as shown in Appendix A, Fig- ure 6. (ii) Place the ESP switches in the following positions: (A) Power On/Off—Off. (B) Auto/Lock—Auto. (C) Start On 1/On 2—On 1. (D) Alert On/Off—Either one. (E) Set Alert—on or off. (iii) Set the digital delay generator to the nearest .1 ms—.0001 sec.— using the following formula: Delay time=4091 divided by SPEED mph Example: To check the ESP Accuracy at 50 mph, set the delay time as follows: Delay Time=4091 divided by 50 mph= 81.8 ms. (iv) Place the ESP Power On/Off Switch to On. The ESP shall read 000. (v) Check that the frequency counter reads 1,000,000 Hz+or—999 Hz. (vi) Press the start switch and observe that the ESP reads within 1 mph of the desired test speed. (vii) Check and record the ESP readings from 20 mph to 140 mph in 5 mph increments. (viii) If the ESP failed one or more of the previous tests, it shall be returned to the manufacturer or to a service center approved by the manufac- turer and tagged with the date tested, the serial number of the device and a notation of the general condition of the device. (ix) If the ESP has passed the previous tests, calibration is complete. (c) Speed Chek—(identified on the housing as Speed Chek model one, mfd. for: The Union Agency, Unionville, Pennsylvania 19375). Manufactured by Sterner Lighting Systems, Inc., 351 Lewis Avenue, Winsted, Minnesota. (1) Required equipment. (See Appendix A, Figure 7 for test setup). The following equipment is required for calibration: (i) Two pulse generators. (ii) Dual channel oscilloscope or counter with interval capability. (iii) Power supply—+5 volts. 105-16 (219080) No.263 Oct. 96 Copc,ight z'1996 Commonwealth of Pennsvhania • Ch. 105 SPEED-TIMING DEVICES 67 § 105.56 (2) Calibration procedure. (See Appendix A, Figure 8 for interconnection diagram). Calibration procedures shall be as follows: (i) A single circuit to generate the signals that simulate the front wheels of a vehicle crossing the tape switches shall be set up as set forth in Appen- dix A, Figures 5 and 6. (ii) The elapsed time between the pulse on Outputs I and 2 is measured by the Speed Chek using the formula V x T= 3408. 3408 is the proper con- stant for a 5-foot roadswitch spacing. V = velocity in mph T=time in ms (iii) The elapsed interval time is computed by the equation: V= 3408 T and compared to the readout on the Speed Chek. (iv) If the readout on the face of the Speed Chek differs by more than 1 mph, the unit shall be returned to the manufacturer or to a service center approved by the manufacturer and tagged with the date tested, the serial number of the device and a notation of the general condition of the device. (d) Model TK 100, Excessive Speed Preventor(ESP)Infrared—Manufactured by Systems Innovation, Inc., Steam Hollow Road, R.D. 2 and Hallstead Plaza, Route 11, Hallstead, Pennsylvania. (1) Required equipment. The following equipment or an equivalent substi- tute is required for calibration: (i) Test Cable—Model TK 100-01. Manufactured by Systems Innova- tion, Inc. (See Appendix A, Figure 4 for an equivalent substitute.) (ii) Power supply. Voltage output-11 to 14 volts dc .5 amp. (iii) Frequency counter. Data Precision—Model 5740 or equivalent. (iv) Digital delay generator. Range: .1 ms to 800 ms;Accuracy: +or — .1%. (2) Calibration procedure. The calibration procedure shall be as follows: (i) Interconnect the ESP Model TK 100 Infrared as shown in Appendix A, Figure 6. (ii) Place the ESP Infrared switches in the following positions: (A) Power On/Off—Off. (B) Auto/Lock—Auto. (C) Start On 1/On 2—On 1. (D) Alert On/Off—either one. (E) Set Alert—on or off. (iii) Set the digital delay generator to the nearest .1 ms—.0001 sec.— using the following formula: Delay time= 2045 divided by speed mph Example: To check the ESP Infrared Accuracy at 50 mph,set the delay time as follows: 105-17 (219081) No. 263 Oct. 96 67 § 105.56 DEPARTMENT OF TRANSPORTATION Pt. I Delay time = 2045 divided by 50 mph=40.9 ms. (iv) Place the ESP Infrared Power On/Off Switch to On. The ESP Infra- red shall read 000. (v) Check that the frequency counter reads 1,000,000 Hz+or—999 Hz. (vi) Press the start switch and observe that the ESP Infrared reads within 1 mph of the desired test speed. (vii) Check and record the ESP Infrared readings from 20 mph to 140 mph in 5 mph increments. (viii) Connect infrared sensors and turn on test panel switch. (ix) Turn rotary switch to the 20 mph position and press test switch. Reading shall be within the tolerances of+ 0 to —2 mph. Repeat for test speeds of 60 mph and 140 mph. (x) If the ESP Infrared failed one or more of the previous tests, it shall be returned to the manufacturer or to a service center approved by the manu- facturer and tagged with the date tested, the serial number of the device and a notation of the general condition of the device. (xi) If the ESP Infrared has passed the previous tests,calibration is com- plete. (e) Enradd, Model EJU-91—Manufactured by Y.I.S., Incorporated, 1049 Hartley Street,P. O. Box 3044,York, Pennsylvania 17404. (1) Required equipment. The following equipment or an equivalent substi- tute is required for calibration: (i) Two pulse generators. (ii) Dual channel oscilloscope or frequency counter with interval capa- bility. (iii) Power supply, + 5 volts. (2) Calibration procedure. (See Appendix A, Figure 8 for interconnection diagram). Calibration procedures shall be as follows: (i) A single circuit to generate the signals that simulate the front wheels of a vehicle crossing the road sensor shall be set up as set forth in Appendix A, Figure 7. (ii) The elapsed time between the pulse on Outputs 1 and 2 is measured by the Enradd using the formula V x T= 3408. 3408 is the proper constant for a 5-foot timing strip spacing. V= velocity in mph T= time in ms (iii) The elapsed interval time is computed by: (A) Calculation of the equation: V=3408— T (B) Comparison of the readout on the oscilloscope/frequency counter to the readout on the Enradd. 105-18 (219082) No.263 Oct. 96 Copyright`1996 Commonwealth of Pennsylvania Ch. 105 SPEED-TIMING DEVICES 67 § 105.56 (iv) If the readout on the face of the Enradd differs by more than+/- 1 mph, the unit shall be returned to the manufacturer or to a service center approved by the manufacturer and tagged with the date tested, the serial number of the device and a notation of the general condition of the device. (f) Equipment, timing strips and other devices. The calibration and testing of equipment, timing strips and other devices actually used with a particular elec- tronic device-nonradar-shall be performed under specifications provided by the manufacturer of an approved device using equipment specified by the manu- facturer or equivalent substitute equipment. Source The provisions of this§ 105.56 adopted December 15, 1978,effective December 16,1978,8 Pa.B. 3578; amended May 18, 1979,effective May 19, 1979,9 Pa.B. 1632;amended November 2, 1979, effective November 3, 1979, 9 Pa.B. 3652; amended December 28, 1979, effective December 29, 1979, 9 Pa.B. 4273; republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B. 3199;amended August 22, 1986,effective August 23, 1986, 16 Pa.B. 3119;readopted December 4, 1987,effective December 5, 1987, 17 Pa.B.5051;amended February 17,1989,effective February 18, 1989, 19 Pa.B.640;amended August 9, 1996,effective August 10, 1996,26 Pa.B.3833.Immediately preceding text appears at serial pages(218221)to(218224). Subchapter E. STOPWATCHES Sec. 105.71. Approved stopwatches. 105.72. Equipment approval procedure. 105.73. Appointment of stopwatch testing stations. 105.74. Required equipment. 105.75. Manner of testing. 105.76. [Reserved]. 105-18.1 (219083) No. 263 Oct. 96 105-18.2 (219084) No.263 Oct. 96 Copyright K'1996 Commonwealth of Pennsylvania s-._._A._,,-_M.=..,.._10 _.w-. -Fx.`(Ar`:a tom°' .,: T. ;.w,,,. ,-.,-- Ch. 105 SPEED-TIMING DEVICES 67 § 105.71 § 105.71. Approved stopwatches. The following types of stopwatches are approved by the Department for use in timing the rate of speed of vehicles: (1) Mechanical stopwatches. A mechanical stopwatch shall comply with the following standards: (i) The face shall be fully graduated,with minimum graduations of 1/5 second. (ii) The stopwatch shall be accurate to the equivalent of plus or minus 15 seconds per 24-hour period. (2) Electronic stopwatches. An electronic stopwatch shall comply with the following standards: (i) The common crystal frequency shall be 32,768 Hz with a measured frequency within plus or minus 3 Hz, or approximately .01%of the standard frequency. (ii) The stopwatch shall be accurate to the equivalent of plus or minus 9 seconds per 24-hour period. Source The provisions of this§ 105.71 adopted August 26, 1977,effective August 27, 1977,7 Pa.B.2422; amended August 18, 1978, effective August 19, 1978, 8 Pa.B. 2311; amended October 27, 1978, effective October 28, 1978,8 Pa.B.2918;republished and compiled August 1,1980,effective August 2, 1980, 10 Pa.B.3199;amended November 19, 1982,effective November 20, 1982, 12 Pa.B.3983; readopted December 4, 1987,effective December 5, 1987, 17 Pa.B.5051.Immediately preceding text appears at serial pages(111322)to(111323). Cross References This section cited in 67 Pa.Code § 105.72 (relating to equipment approval procedure); and 67 Pa.Code§ 105.94(relating to required equipment). § 105.72. Equipment approval procedure. To obtain approval of a type of stopwatch, a laboratory report indicating that the type of stopwatch has been tested in accordance with this subchapter and meets the standards in § 105.71 (relating to approved stopwatches) shall be sub- mitted to the Bureau of Motor Vehicles, Vehicle Contrgl Division, Post Office Box 8697, Harrisburg, Pennsylvania 17105. Source The provisions of this§ 105.72 adopted August 26,1977,effective August 27,1977,7 Pa.B.2422; amended August 18, 1978, effective August 19, 1978, 8 Pa.B. 2311; amended October 27, 1978, effective October 28, 1978,8 Pa.B.2918;republished and compiled August 1,1980,effective August 2, 1980, 10 Pa.B.3199;amended November 19, 1982,effective November 20, 1982, 12 Pa.B.3983; readopted December 4, 1987, effective December 5, 1987, 17 Pa.B. 5051; amended February 17, 1989,effective February 18, 1989, 19 Pa.B. 640. Immediately preceding text appears at serial page (122766). 105-19 (218225) No. 262 Sep. 96 67 § 105.73 DEPARTMENT OF TRANSPORTATION Pt.1 § 105.73. Appointment of stopwatch testing stations. A facility capable of testing the accuracy of a stopwatch and capable of mak- ing adjustments to assure the accuracy of a stopwatch may, upon application to the Bureau, be appointed as a stopwatch testing station. Source The provisions of this§ 105.73 adopted August 26,1977,effective August 27,1977,7 Pa.B.2422; amended August 18, 1978, effective August 19, 1978, 8 Pa.B. 2311; amended October 27, 1978, effective October 28, 1978,8 Pa.B.2918;republished and compiled August I, 1980,effective August 2, 1980, 10 Pa.B.3199;amended November 19, 1982,effective November 20, 1982, 12 Pa.B.3983; readopted December 4, 1987,effective December 5, 1987, 17 Pa.B.5051.Immediately preceding text appears at serial page(111323). § 105.74. Required equipment. (a) Stopwatch testing stations appointed to test mechanical stopwatches shall have at least one "Watch Master," vibrograf MU 700, or similar device. (b) Stopwatch testing stations appointed to test electronic stopwatches shall have at least one digital counter of at least 1 part in 106 accuracy or vibrograf models MU700 or M80. The counter accuracy shall be traceable to the National Bureau of Standards. Source The provisions of this§ 105.74 adopted August 26,1977,effective August 27,1977,7 Pa.B.2422; amended August 18, 1978, effective August 19, 1978, 8 Pa.B. 2311; amended October 27, 1978, effective October 28, 1978,8 Pa.B.2918;republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B.3199;amended November 19, 1982,effective November 20, 1982, 12 Pa.B.3983; readopted December 4,1987,effective December 5, 1987,17 Pa.B.5051.Immediately preceding text appears at serial page(111323). § 105.75. Manner of testing. (a) Test. (1) A mechanical stopwatch shall be tested with a "Watch Master" or similar device. (2) An electronic stopwatch shall be tested by measuring the frequency of crystal between the common terminal at the base of the battery and the test point or output terminal on the crystal, with a digital counter of at least 1 part in 106 accuracy.The counter accuracy shall be traceable to the National Bureau of Standards.Note: Plus or minus 1 Hz is plus or minus 3 seconds in 24 hours; plus or minus 2 Hz is plus or minus 6 seconds in 24 hours;plus or minus 3 Hz is plus or minus 9 seconds in 24 hours. (b) Forms. Upon determining that a stopwatch is accurate, a stopwatch test- ing station shall issue a certificate of accuracy on a form provided by the Depart- ment. The certificate shall contain the date of the test and the signature of the person who conducted the test. The certificate shall be kept on file for at least 2 105-20 (218226) No.262 Sep. 96 Copyright 1996 Commonwealth of Pennsylvania • Ch. 105 SPEED-TIMING DEVICES 67 § 105.76 years.A duplicate copy, executed and signed in the same manner as the original, has the same force and effect as the original. Source The provisions of this§ 105.75 adopted August 26,1977,effective August 27,1977,7 Pa.B.2422; amended August 18, 1978, effective August 19, 1978, 8 Pa.B. 2311; amended October 27, 1978, effective October 28, 1978,8 Pa.B.2918;republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B.3199;amended November 19, 1982,effective November 20, 1982, 12 Pa.B.3983; readopted December 4, 1987, effective December 5, 1987, 17 Pa.B. 5051; amended February 17, 1989,effective February 18, 1989, 19 Pa.B. 640. Immediately preceding text appears at serial page (122767). § 105.76. [Reserved]. Source The provisions of this § 105.76 adopted October 27, 1978, effective October 28, 1978, 8 Pa.B. 2918;amended January 12, 1979, effective January 13, 1979,9 Pa.B. 172;amended July 20, 1979, effective July 21, 1979,9 Pa.B.2401;amended September 28, 1979,effective September 29, 1979, 9 Pa.B. 3324; amended May 16, 1980, effective May 17, 1980, 10 Pa.B. 1980; amended May 30, 1980, effective May 31, 1980, 10 Pa.B. 2162; republished and compiled August 1, 1980, effective August 2, 1980,10 Pa.B.3199;amended January 15,1982,effective January 16, 1982,12 Pa.B.299; amended November 19, 1982,effective November 20, 1982, 12 Pa.B.3983;amended December 30, 1983, effective December 31, 1983, 13 Pa.B. 4021;reserved March 30, 1984, effective March 31, 1984. 14 Pa.B. 1089.Immediately preceding text appears at serial pages(85977)to(85978),(86615) to(86616)and(85979)to(85983). Subchapter F. ELECTRONIC DEVICES (NONRADAR)WHICH CALCULATE AVERAGE SPEED BETWEEN ANY TWO POINTS Sec. 105.91. [Reserved]. 105.92. [Reserved]. I05.92a. Application of subchapter. 105.93. Operation of maintenance and calibration stations. 105.94. Required equipment. 105.95. Manner of calibration and testing. Source The provisions of this Subchapter F adopted May 16,1980,effective May 17,1980,10 Pa.B.1980; amended August 22, 1986,effective August 23, 1986, 16 Pa.B.3119,unless otherwise noted.Imme- diately preceding text appears at serial pages(87719)to(87720)and(71201)to(71203). 105-21 (218227) No. 262 Sep. 96 67 § 105.91 DEPARTMENT OF TRANSPORTATION Pt. I § 105.91. [Reserved]. Source The provisions of this§ 105.91 adopted May 16, 1980,effective May 17, 1980, 10 Pa.B. 1980; republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B.3199;reserved March 30, 1984,effective March 31, 1984, 14 Pa.B. 1089.Immediately preceding text appears at serial page (83725). § 105.92. [Reserved]. Source The provisions of this § 105.92 adopted May 16, 1980,effective May 17, 1980, 10 Pa.B. 1980; republished and compiled August 1, 1980,effective August 2,1980,10 Pa.B.3199;amended October 17, 1980,effective October 18, 1980, 10 Pa.B.4101;amended December 19, 1980,effective Decem- ber 20, 1980, 10 Pa.B.4732;amended January 15, 1982,effective January 16, 1982, 12 Pa.B.299; amended May 28, 1982,effective May 29,1982, 12 Pa.B. 1698;amended November 12, 1982,effec- tive November 13,1982,12 Pa.B.3946;amended November 19, 1982,effective November 20, 1982, 12 Pa.B. 3983;amended September 2, 1983,effective September 3, 1983, 13 Pa.B.2704;amended December 30, 1983,effective December 31,1983,13 Pa.B.4021;reserved March 30, 1984,effective March 31,1984,14 Pa.B. 1089.Immediately preceding text appears at serial page(83725)to(83726). § 105.92a. Application of subchapter. This subchapter governs the calibration and testing of electronic devices- nonradar-which calculate the average speed between any two points,for use by a police officer,under 75 Pa.C.S. § 3368(c)(3)(relating to speed timing devices). Source The provisions of this § 105.92a adopted August 22, 1986, effective August 23, 1986, 16 Pa.B. 3119;readopted December 4, 1987,effective December 5, 1987, 17 Pa.B. 5051;amended February 17, 1989,effective February 18, 1989, 19 Pa.B. 640. Immediately preceding text appears at serial page(122768). § 105.93. Operation of maintenance and calibration stations. (a) Maintenance and calibration. Maintenance and calibration of electronic devices governed by this subchapter shall be provided,as necessary,upon request by State or local police. (b) Hours. Stations for the maintenance and calibration of electronic devices shall be operated during a regular work week, Monday through Friday during the hours of 8 a.m. to 5 p.m. (c) Personnel. A station for the maintenance and calibration of electronic devices shall employ on a full-time basis: (1) An electrical engineer or metrologist. (2) An associate engineer, associate metrologist or technician. (d) Certification of accuracy. Either the electrical engineer, associate engi- neer, metrologist, associate metrologist or technician shall be present at the time that the testing is conducted. The certification that the electronic speed-timing 105-22 (218228) No.262 Sep. 96 Copyright K'1996 Commonwealth of Pennsylvania Ch. 105 SPEED-TIMING DEVICES 67 § 105.94 device has been tested and found to be accurate creates a presumption that the requirements of this subsection have been fulfilled. (e) Malfunctioning devices. Malfunctioning electronic devices shall be returned to the manufacturer or to a service center approved by the manufacturer and tagged with the date tested,the serial number of the device and a notation of the general condition of the device. (f) Damage to or loss of device. The station for the maintenance and calibra- tion of electronic devices is responsible for damages or losses of the devices while they are being serviced or calibrated. (g) Location. Electronic testing and repair shall take place at an approved electronic testing station, except that, upon approval of the Department, an elec- tronic testing station may operate mobile test units of a type approved by the Department. Source The provisions of this § 105.93 adopted May 16, 1980,effective May 17, 1980, 10 Pa.B. 1980; republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B.3199;amended August 22, 1986,effective August 23, 1986, 16 Pa.B.3119;readopted December 4, 1987,effective Decem- ber 5, 1987, 17 Pa.B.5051;amended February 17, 1989,effective February 18, 1989, 19 Pa.B.640. Immediately preceding text appears at serial pages(122768)to(122769). § 105.94. Required equipment. The following equipment is required for the operation of a station for the maintenance and calibration of electronic devices governed by this subchapter: (1) Tape measure capable of measuring distances of at least 1/4 mile. (2) Stopwatch approved under § 105.71 (relating to approved stop- watches). (3) Handheld calculator. Source The provisions of this § 105.94 adopted May 16, 1980,effective May 17, 1980, 10 Pa.B. 1980; republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B.3199;amended August 22, 1986,effective August 23, 1986, 16 Pa.B. 3119;readopted December 4, 1987,effective Decem- N ber 5, 1987, 17 Pa.B. 5051.Immediately preceding text appears at serial page(411325), § 105.95. Manner of calibration and testing. (a) Method. An electronic device governed by this subchapter shall be cali- brated and tested as follows: (1) Establish a measured 1/4-mile course with a tape,preferably on a rela- tively flat and straight roadway. (2) Run through this 1/4 mile with both the time and distance switch on at the beginning and the turn switch off at the end. Push the distance recall but- 105-23 (218229) No. 262 Sep. 96 67 § 105.95 DEPARTMENT OF TRANSPORTATION Pt. I ton. Distance will be displayed to the nearest ten thousandths of a mile—that is, .2500. If calibration is correct,reading should be within+or — 1%, or+or — .0025 mile. (3) If calibration is out, recalibrate according to the instructions of the manufacturer. (4) A course other than a 1/4-mile course can be used, but not less than 1/10 mile. (5) Run through the measured course of 1/4 mile with both the time and distance switch on at the beginning and off at the end. Push the distance recall button and record the actual distance in the unit—that is, .2504. (6) There is now an accurate fixed distance in the machine that is within the + or — 1% tolerance. With the aid of a stopwatch, check the accuracy for the vehicular speed desired by turning the red time switch on the speed will be displayed. This can be compared with the calculated speed described in para- graph (7). (7) Average speed is distance divided by time. With the use of a handheld calculator, divide the distance by time and multiply by 3,600 to convert sec- onds into hours. Use the time recall button to get the time in seconds.Also use the actual course measured distance—that is, .2500 miles—in the calculations. Example: Do not touch the distance switch after running the 1/4 mile course. By pushing the recall button, it should indicate a distance of.2504. Enter a nominal 15 sec- onds with the time switch which is checked with the time recall. It actually will be 15.10 and a speed display of 59.7 mph. Now calculate the average speed using actual time and actual distance. SPEED = .2500 miles 3600 sec. = 59.6 mph 15.10 sec. hour This compares very favorably with the speed reading of the unit 59.7 (.17%). This procedure should be used for other speeds by varying the time input to the unit. (8) High speed running checks may be made checking against the cali- brated speedometer of the vehicle. To do this, drive the vehicle at a specific speed. Turn both time and distance switches on. Wait 5 seconds and turn both switches off. The speed will be displayed. (b) Maintenance work-order. A maintenance work-order containing the fol- lowing information shall be completed and accompany the electronic device: (1) The serial number of the device. (2) The work performed and the date of the work. (3) The original complaint. (4) The actual work performed. (5) The amount of time taken in repair of the unit. (6) The stock numbers of the equipment replaced. 105-24 (218230) No.262 Sep. 96 Copyright'c'1996 Commonwealth of Pennsel ania Ch. 105 SPEED-TIMING DEVICES 67 § 105.95 (c) Calibration forms. Certificates of accuracy, provided by the Department, shall be filed for electronic devices calibrated and tested as follows: (1) The original and a duplicate shall accompany the electronic device. (2) One duplicate copy shall be retained by the maintenance and calibra- tion station for at least 2 years. (3) A duplicate copy,executed and signed in the same manner as the origi- nal, has the same force and effect as the original. (d) Testing forms.Technical data forms,provided by the Department,shall be filed for electronic devices tested as follows: (1) One original shall accompany the electronic device. (2) Two duplicate copies shall be retained by the maintenance and calibra- tion station for at least 2 years. (3) A duplicate copy,executed and signed in the same manner as the origi- nal, has the same force and effect as the original. (e) Equipment, timing strips and other devices. The calibration and testing of equipment, timing strips and other devices actually used with a particular elec- tronic device—nonradar---shall be performed under the specifications provided by the manufacturer of an approved device using equipment specified by the manufacturer or equivalent substitute equipment. Source The provisions of this § 105.95 adopted May 16, 1980,effective May 17, 1980, 10 Pa.B. 1980; republished and compiled August 1, 1980,effective August 2, 1980, 10 Pa.B. 3199; corrected May 28, 1982,effective May 9,1981,12 Pa.B. 1697;amended August 22,1986,effective August 23,1986, 16 Pa.B. 3119;readopted December 4, 1987,effective December 5, 1987, 17 Pa.B. 5051; amended February 17, 1989,effective February 18, 1989, 19 Pa.B.640.Immediately preceding text appears at serial pages(1 22769)to(1 22771). Notes of Decisions Trial court did not err in admitting into evidence a VASCAR-PLUS unit speed-reading taken over a distance of less than the distance specified for calibration by the Department of Transportation because the legislature did not intend to establish a minimum distance requirement for the use of VASCAR PLUS unit, instead the legislature intended to establish a method to calibrate and test an electronic unit. Commonwealth v. Vishneski,552 A.2d 297(Pa.Super. 1989). 105-25 (218231) No. 262 Sep. 96 67 DEPARTMENT OF TRANSPORTATION Pt. I APPENDIX A NDIZ: Chambers construction consists of I• 10" 1/2" plywood. All interior sides lined with aluminum foil and then covered with ECCOSOR$ AN 73 (3/8" 1,e_41 thick) or equivalent. . • • r - V N•14 18" (A 18" 0.1 FIGURE 1 105-26 (218232) No.262 Sep. 96 Copyright F'1996 Commonwealth of Pennsylvania Ch. 105 SPEED-TIMING DEVICES 67 F O a C.+ <O N v % < V ~O F E m y r m °G ,, -;^ a" n ` v N Z v e'1 A.> w w w a. El y N N t U•� N E.e N v� a: �y �v ca. " r w U F ov U3 G F O Z v w°z o Al o w w a Z ♦ o0G.. N _ [fir. m c. ti FIGURE 2 105-27 (218233) No. 262 Sep. 96 67 DEPARTMENT OF TRANSPORTATION Pt.I USM 207 Universal Counter in B C Time Mode Slope + B C 1.5 VDC Battery 1 ' T Switches\/ • • Start Switch Stop Switch • Start Stop Cable Electrical Speed Cable Timing System FIGURE 3 Electrical Speed-Timing System Equipment Setup 105-28 (218234) No.262 Sep. 96 Copyright'}1996 Commonwealth of Pennsylvania Ch. 105 SPEED-TIMING DEVICES 67 RED 6> + Voltage BLACK 1> Ground II s\ COAX r..� 9> '✓ > Frequency Counter P1 - Cannon #DEM9S P2-BNC FIGURE 4 Model TK 100, ESP/Infrared Test Cable Wiring Diagram + POWER - SUPPLY P1 E.S.P. P2 FREQUENCY COUNTER FIGURE 5 Model TK 100,ESP/Infrared Test Setup 105-29 (218235) No. 262 Sep. 96 67 DEPARTMENT OF TRANSPORTATION Pt.I J1 12VDC + 6 Power Supply - 7 Start ---�0 0 1 ESP • 2 Model TK 100 Digital 3 Infrared Delay Generator Stop 5 { i 9 Frequency 1 1 Counter r 4 FIGURE 6 Model TK 100,ESP/Infrared Interconnection Diagram 105-30 (218236) No.262 Sep. 96 Copyright'z 1996 Commonwealth of Pennsylvania Ch. 105 SPEED-TIMING DEVICES 67 DEPARTMENT OF TRANSPORTATION DUAL COMM OCOPT OR " " rim SPUD CUE/INZADD 11WATQLIOVTPUT INPUT 11 INPUT 52 II PM= 7 s� aazialst tt Teat Setup — 18ASSS �DND WAVUYORM GPNLRATZD t- 3 b!'SEC 3MSC MGM S SPUD CBEICIENRADD Lderareeetlea Disgamt 105-31 (219085) No. 263 Oct. 96 67 DEPARTMENT OF TRANSPORTATION Pt. I Source The provisions of this Appendix A amended August 9, 1996,effective August 10, 1996,26 Pa.B. 3833.Immediately preceding text appears at serial pages(218237)to(218238). Cross References This appendix cited in 67 Pa.Code§ 105.15(relating to calibration and testing procedure);and 67 Pa.Code§ 105.56(relating to manner of calibration and testing). [Next page is 107-I.] 105-32 (219086) No.263 Oct. 96 Copyright T/996 Commonwealth of Pennsylvania P The t-L'b t 33 AAA.Attet 3 1 5 12-b/ 6Lt57- 2, 2003 vania NOTICES DEPARTMENT OF TRANSPORTATION Addendum and Revision of the Listing of Approved Speed-Timing Devices and Appointment of Maintenance and Calibration Stations [33 Pa.B. 3806] The Department of Transportation(Department), Bureau of Motor Vehicles, under the authority of 75 Pa.C.S. § 3368 (relating to speed timing devices), published at 32 Pa.B. 6424 (December 28, 2002) a notice of approved speed-timing devices and maintenance and calibration stations for use until the next comprehensive list is published. Approval Under 75 Pa.C.S § 3368(c)(3), the Department has approved, for use by any police officer, the following electronic speed-timing device (nonradar) which measures elapsed time between measured road surface points by using two sensors: (1) Enradd EJU-91 Wireless System. Manufactured by Y. I. S. Incorporated, 1049 Hartley Street, P. O. Box 3044, York, PA 17404. Comments, suggestions or questions should be directed to Peter Gertz, Manager, Admin./Tech Support Section, Vehicle Inspection Division, Bureau of Motor Vehicles, Third Floor, Riverfront Office Center, 1101 South Front Street, Harrisburg, PA 17104, (717) 783-7016. Other approved speed-timing devices and appointment of maintenance and calibration stations appear at 32 Pa.B. 6424 and 33 Pa.B. 1545 (March 21, 2003). ALLEN D. BIEHLER P. E., Secretary [Pa.B.Doc.No.03-1510.Filed for public inspection August 1,2003,9:00 a.m.] No part of the information on this site may be reproduced for profit or sold for profit. This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this ENRADD Test v1.0 1. Connect NCRS and ENRADD head to power source 2. Turn head on and press Reset button 3 times to run internal test, head will display 40mph each time a. If unit has Data Collection: After internal test, head will display"Stand-by mode" b. Press Reset once more and head will briefly display "Master Relinking", then "Master RF" 3. Align NCRS by using alignment switch on the receiver bar to test the high side, then the low side for alignment 4. Place lane switch on head to lane 1 5. Run your hand through low side beam, head will display 7mph 6. Run your hand through low side beam again, head will display "Check Low Freq Sensor Alignment" 7. Place lane switch on head to lane 2 8. Run your hand through high side beam, head will display 7mph 9. Run your hand through high side beam again, head will display "Check High Freq Sensor Alignment" 10. Place lock switch on, then off and verify that it changes on the display 11. Remove NCRS from power. You are now ready to check speeds by connecting head to ENRADD/ESP tester EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION—LAW 13-61-131,0 MS. STACY HAMILTON OPEN : NO.-1-376&5% RECORDS OFFICER AND BOROUGH : OF CARLISLE, : COMPLAINT IN MANDAMUS Defendants • v. • YIS/COWDEN GROUP, INC. • CERTIFICATE OF SERVICE I, Daniel K. Mathers, Esquire, Attorney for YIS/Cowden Group, Inc., do hereby certify that a true and correct copy of the Additional Defendant, YIS/Cowden Group, Inc. Answer and New Matter to Third Party Joinder Complaint of Stacy Hamilton, Open Records Officer and Borough f Carlisle was served upon Defendants in the above captioned matter on the a4d't- day of �►rpl , 2013, by U.S. First Class Mail upon the following: Brian Leinhauser The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Earle Drack rncu c) r_.: 111 Bertolet School Road Spring City, PA 19475 -<= >r, Respectfully submitted, It+ Date: 10\a"-1113 f JZ.t f��`1 • /i 1L.17r"F't_. Li- j` Daniel K. Mathers, Esquire Mathers & Stapp, P.C. Attorney for YIS/Cowden Group, Inc. ID #29950 416 Pine Street, Suite 308 Williamsport,PA 17701 dmathers @MathersStapp.com (570) 326-5171 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Sonny RAnderson F !HE PROTHONUTAkY Sheriff ,.t c�limbt,,, Jody S Smith 2 I3 NOV _4 PM a: 3' Chief Deputy Richard W Stewart CUMBERLAND COUNTY Solicitor °Ma ' T E SE.ERIFP PENNSYLVANIA Earle Drack Case Number vs. 2013-5436 Stacey Hamilton (et al.) SHERIFF'S RETURN OF SERVICE 10/24/2013 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: YIS Cowden, but was unable to locate the Defendant in the Sheriffs bailiwick.The Sheriff therefore deputizes the Sheriff of York, Pennsylvania to serve the within Complaint&Notice according to law. 10/31/2013 Ronny R Anderson, Sheriff,who being duly sworn according to law, states this Third Party Complaint upon defendant YIS Cowden is returned not served per request from attorney Tricia Ambrose. SHERIFF COST: $24.96 SO ANSWERS, October 31, 2013 RONNK ANDERSON, SHERIFF (ci C;ou.^wSu f�Sheriff Ich osoft.I,?C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack * vs. Civil Action No. 13-5436 * Ms. Stacy Hamilton Open Records Officer Borough of Carlisle Complaint in Mandamus * vs. * YIS/Cowden Group Filed by and on behalf of: Earle Drack 111 Bertolet School RD Spring City, PA 19475 rri ' I cn <CI) ••••7t c...7; 3:> • Cji 4 , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack * * vs. * Civil Action No. 13-5436 * Ms. Stacy Hamilton * Open Records Officer Borough of Carlisle * Complaint in Mandamus * vs. * * YIS/Cowden Group * RESPONSE TO THIRD PARTY DEFENDANT NEW MATTERS AND NOW comes Earle Drack, by and for himself as a pro se litigant, and files the within RESPONSE TO THIRD PARTY DEFENDANT NEW MATTERS. NEW MATTER 17. Neither admitted nor denied. 18. Admitted that this section of the PA Code documents the manner of testing which applies to a certain class of speed timing devices per the PA Code. Document speaks for itself. 19. Document speaks for itself. 20. Denied. The RTKL deals with records, not information. The characterization provided in Third Party Defendant's description, whether accurate or not, constitutes information and does not specifically identify a responsive record. Moreover, there is no reference to a"delay time" in 67 PA Code 105.56(e), so the description is inaccurate on its face in addition to being information and not a record. In addition, the required constant referenced in 67 PA Code 105.56(e)is specified clearly and there is no provision in the regulations for arbitrarily changing it, if in fact that is what the Third Party Defendant is suggesting they do. Nor is there any reference to "industry standards" or an exception to the regulation based on"industry standards"that would allow for violating the regulations set forth in 67 PA Code 105.56(e) for ENRADD EJU-91 calibration and instead using 67 PA Code 105.56(d) procedures (for ESP) on an ENRADD EJU-91. 21. Denied. There is nothing set forth in 67 PA Code 105.56 which sets forth the sue of a different constant, a time delay, or use of section 105.56(d) when calibrating an ENRADD EJU-91. To suggest otherwise is in accurate. The documents speak for themselves. If there is no record which documents the way Third Party Defendant chooses to perform its ENRADD EJU-91 calibrations, it can simply execute an affidavit of non-existence, but it cannot contort, mix, and otherwise distort clear procedures in the PA Code and then characterize those contortions, mixes, and/or distortions as a responsive record in this case. 22. Neither admitted nor denied. 23. Denied. Included"training notes" appear to deal only with the testing of the Non- Contact Road Switch (NCRS) and end with an indication that the technician is now ready to test the speeds by connecting the head to the ENRADD/ESP tester as shown below: 11.Remove NCRS from power. You are now ready to check speeds by connecting head to ENRADD/ESP tester Thus there would appear to be additional training notes related to that portion of the test, wherein presumably the constant specified in 67 PA Code 105.56(e) is not used as required by the regulation which, as Third Party Defendant admits in 18 of this New Matter, is the regulation which applies to calibration/testing of this device. 24. Denied. Defendants have documented and attested to such refusal. Respectfully Submitted, 0 1 Earle D. Drack, Complainant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack * * vs. * Civil Action No. 13-5436 * Ms. Stacy Hamilton Open Records Officer Borough of Carlisle * Complaint in Mandamus * vs. * YIS/Cowden Group * PROOF OF SERVICE I, Earle Drack,pro se Complainant, do hereby certify that I have served a copy of the forgoing Complaint in Mandamus upon the parties below via prepaid first class US Mail at the address shown below: j • 1 (7(1/(3 Earle D. Drack, Date Brian Leinhauser, Esquire (attorney for Carlisle Borough) The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Daniel K. Mathers, Esquire (Attorney for YIS/Cowden) 416 Pine Street, Suite 308 Williamsport, PA 17701 THE MACMAIN GROUP, LLC By: David J. MacMain, Esquire Attorneys for Defendants Borough of Carlisle Attorney I.D. #59320 and Ms. Stacy Hamilton, Open Records Officer By: Brian Leinhauser, Esquire Attorney I.D. #203945 101 Lindenwood Drive Suite 160 Malvern, PA 19355 (484)-318-7106 EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW vs. NO. 13-5436 MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH COMPLAINT IN MANDAMUS OF CARLISLE n, Defendants/ Third Party Plaintiffs r�r, ZZ - z VS. rte- �: C;) ; �p �1Cs YIS/COWDEN GROUP, INC a o `"• :;P--= c rya r_-_-� Third Party Defendant DEFENDANTS/THIRD-PARTY PLAINTIFFS' MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE RESPONSE TO THIRD PARTY DEFENDANT,YIS/COWDEN GROUP INC'S NEW MATTER Third Party Plaintiffs, Ms. Stacy Hamilton Open Records Officer and Borough of Carlisle hereby answer Third Party Defendant, YIS/Cowden's New Matter, denying each and every averment set forth herein below except as expressly admitted. 17. Defendants/Third-Party Plaintiffs incorporate herein by reference the averments contained in their Joinder Complaint as if attached hereto. 18. Admitted in part and denied in part. It is admitted only that Third-Party Defendant attached title 67 Pa.C.S. §105 as an Exhibit to their Answer to the Joinder Complaint. The content of this document speaks for itself and any inconsistent characterization thereof is specifically denied. 19. Denied. The content of Exhibit B is a document, the contents of which speak for itself and any inconsistent characterization thereof is specifically denied. 20. Denied. The averments contained in paragraph 20 are legal conclusions to which the Pennsylvania Rules of Civil Procedure require no responsive pleading and are therefore denied. 21. Denied. The averments contained in paragraph 21 are legal conclusions to which the Pennsylvania Rules of Civil Procedure require no responsive pleading and are therefore denied. 22. Denied. The averments contained in paragraph 22 are legal conclusions to which the Pennsylvania Rules of Civil Procedure require no responsive pleading and are therefore denied. 23. Denied. Exhibit C is a document, the contents of which speak for itself and any inconsistent characterization thereof is specifically denied. 24. Denied. The averments contained in paragraph 24 are legal conclusions to which the Pennsylvania Rules of Civil Procedure require no responsive pleading and are therefore denied. WHEREFORE, Defendants/Third-Party Plaintiffs Miss Stacy Hamilton Open Records Officer and the Borough of Carlisle respectfully,requests that this Court grant judgment their favor and against the Plaintiff on the Complaint together with costs and expenses. Dated: I< <L- k3 By: an Leinhauser, Esquire Attorney ID #203495 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Defendants THE MACMAIN GROUP, LLC By: David J. MacMain, Esquire Attorneys for Defendants Borough of Carlisle Attorney I.D. #59320 and Ms. Stacy Hamilton, Open Records Officer By: Brian Leinhauser, Esquire Attorney I.D. #203945 101 Lindenwood Drive Suite 160 Malvern, PA 19355 (484)-318-7106 EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. 13-5436 MS. STACY HAMILTON OPEN RECORDS OFFICER and BOROUGH COMPLAINT IN MANDAMUS OF CARLISLE Defendants CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Answer to Third- Party Defendant's New Matter via United States First Class Mail, Postage Pre-Paid, upon the following: Earle Drack 111 Bertolet School Road Spring City, PA 19475 Daniel Mathers 416 Pine Street Suite 308 Williamsport, PA 17701 THE MACMAIN LAW GROUP, LLC Dated: November 12, 2013 By: n Leinhauser, Esquire Attorney ID#203495 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Defendants 3 ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL Earle Drack VS. * Civil Action No. 13-5436 * Ms. Stacy Hamilton Open Records Officer Borough of Carlisle * Complaint in Mandamus ° w� VS. -01-1 r- ,ZJ * -C> YIS/Cowden Group v aC Cf) lY RESPONSE TO DEFENDANT NEW MATTER AND NOW comes Earle Drack,by and for himself as a pro se litigant, and files the within RESPONSE TO DEFENDANT NEW MATTER. NEW MATTER 27.Neither admitted nor denied. 28. Denied. Matter of law. Document speaks for itself. Defendant refused to take further steps to comply with OOR directive, inviting Drack to "pursue whatever recourse you feel is appropriate". Now that Drack has done so,Defendant is suddenly willing and able to hire outside counsel, ask the court to enjoinder Third Party Defendant, and to devote significant resources to resolving this matter. By explicitly refusing to take the further steps available to it unless and until Drack was forced to expend the money and time required to file the herein Complain in Mandamus, Defendant has demonstrated bad faith r in failing to comply with the OOR directive in this case. The Defendant was not directed to "try to"provide the responsive records; it was directed to provide them. BY choosing to stop trying when its initial efforts proved ineffective,the Defendant apparently decided to risk possible (unlikely?) large sanctions/penalties for non-compliance in order to avoid the certain small costs of compelling compliance. Award of penalties in this case will no longer incentivize defendant and/or other agencies to make similar decisions in the future. 29. Denied. Matter of law. 30. Denied. Matter of law. Respectfully Submitted, Earle D. Drack, Complainant s s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL Earle Drack Vs. * Civil Action No. 13-5436 * Ms. Stacy Hamilton Open Records Officer Borough of Carlisle * Complaint in Mandamus * vs. * YIS/Cowden Group PROOF OF SERVICE 1, Earle Drack,pro se Complainant, do hereby certify that I have served a copy of the forgoing RESPONSE TO DEFENDANT NEW MATTER upon the parties below via prepaid first class US Mail at the address shown below: 1/t a/6 Earle D. Drack, Complainant Date Brian Leinhauser, Esquire(attorney for Carlisle Borough) The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Daniel K. Mathers, Esquire (Attorney for YIS/Cowden) 416 Pine Street, Suite 308 Williamsport,PA 17701 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL Earle Drack * , * VS. * Civil Action No. 13-5436 * Ms. Stacy Hamilton Open Records Officer Borough of Carlisle * Complaint in Mandamus * VS. * YIS/Cowden Group Filed by and on behalf of: Earle Drack 111 Bertolet School RD Spring City,PA 19475 C: -u 2z w -- -zQ a5 f�)^Yi �yC tV a co y_x a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack * VS. * Civil Action No. 13-5436 Cl Ms. Stacy Hamilton Open Records Officer - Borough of Carlisle * Complaint in Mandamus .a r * -< — vs. * o CD. . YIS/Cowden Group * f' SUPPLEMENTAL RESPONSE TO THIRD PARTY DEFENDANT NEW MATTERS AND NOW comes Earle Drack, by and for himself as a pro se litigant, and files the within SUPPLEMENTAL RESPONSE TO THIRD PARTY DEFENDANT NEW MATTER. NEW MATTER 22. Denied as stated. In fact, when requesting approval of the ENRADD wireless in March 2003, Third Party Defendant appears to lead PennDOT to believe that the "method of vehicle detection by the sensors and the calculation of the time interval for the vehicle passing through the sensors remain the same as the current approved ENRADD." See attached Exhibit A, and in particular the highlighted description on page 2 of that Exhibit. Thus, PennDOT appears to have been led to believe by Third Party Defendant that there was no need to create new calibration procedures, since Third Party Defendant apparently chose to: a) Tell PennDOT that the measurement method had not changed from the previously approved ENRADD, which used a 5' spacing and the associated constant. b) Keep the model number of the measurement head, ENRADD EJU-91, exactly the same, despite the fact that YIS apparently unilaterally started building them with a 3' constant instead of a 5' constant since at least 2003. It thus seems disingenuous for Third Party Defendant to now question why PennDOT did not ask whether new calibration procedures would be required. Respectfully Submitted, Earle D. Drack, Complainant EXHIBIT Request for Approval of ENRADD Wireless 1049 Nortli 1jarticy St. York,PA 17404 322 Locust St.Suite 1 (717)854-7804 'Villiamspo.rl,PA 17701 fAx(717)846-2245 (570)326.5274 web site, (570) 26=3]84 email {nlco,v end uixngt.net A1at•ct2 �$,2,003 t�l.�� 1 c�� I t`t�llll Bureau Of Motor Vehicles Vehicle Inspection Division 3'd Floor Riverfront office Center Harrisburg, FAQ 17104 717-783-5845 Re: ENRADD Wireless Doug, On behalf of YIS, Inc. of York PA we are requesting the approval of your office for an upgrade to our current speed-tuning device the ENRADD Non-Contact Roadswitch system. We have a list of laboratories for possible use in the evaluation, they are: 1)Electronic Services &Instrumentation (ES.I) located in MD testing. Contact Tom Melton 800-797-6659. 2) Byram Labs, in NJ no contact name. 800-766-1212. 3)Lockheed Martin in Orlando FL. Contact Phyllis at 800-275-3488. 4) GE Industrial located in NY no contact 800-432-2572 5) Certified Measurements, Inc. in GA no contact 800-525-0408 Thank-you, - - - James E. Cowden YIS/Cowden Group, hie. 1 } r 'ry W ,At'. ��\V 1049 North Hartley St. 322 lAcust St.Suite 1. York,VA 17404 Mfilliarnspor ;PA I7701. (71.7)854-7804 (576)326-5274 fzx(717),846-212,165, fax(570)326--3184 web site www.vising.coin/Polic rt'ninil 'incari n a nixnet.net ENRADD Wireless General Description ENRADD Wireless can operate through either a direct cable connection or through wireless transceivers.In direct cable mode the system functions as a current PennDot approved ENRADD system.In wireless mode the difference in operation is in the data transmission from the Non-Contact Roadswi(cll to the ENRADD head. When a vehicle drives through the sensors,the Non-Contact Roadswitch will interrupt data the speed and transmit the speed data to the ENRADD,which will then confirm the info back to the Non-Contact Itoadswitch for confirmation once confirmed the speed is displayed, (this all happens in milliseconds).The method of vehicle detection by the sensors and the calculation of the time interval for the vehicle passing through the sensors remain the same as the current approved ENRADD. Any wireless data systejn trust address the issues of'transmit power,data corruption and interference.Our system addresses these issues in the following manor l)Transmit Power....... Our transceivers are FCC.Approved 2);Data Corruption .....The data transmission between transceivers in encoded within 2.4Ghz'Spread Spectrum protocol.'Spread spectrum is technology where the transceivers transmit:data on continuously changing frequencies,This creates very secure data link that resists interference.To insure proper data reception the data is encoded and the transceivers communicate in a bi-directional format that allows the ENRADD'head to confirm data received from the Non-Contact Roadsw tch. 3)Interference...As discussed the Spread Spectrum technology is'highly - iinrnune from interference:As a precaution we have built-in a safety valve; if a condition occurs where another transmitter is flooding the ENRADD transceivers frequency band, the ENRADD will stop displaying new speeds since it will be unable to confirm data through bi=directional communication with the Non-Contact Roadswritch. 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL Earle Drack vs. * Civil Action No. 13-5436 Ms. Stacy Hamilton Open Records Officer Borough of Carlisle Complaint in Mandamus VS. YIS/Cowden Group PROOF OF SERVICE I, Earle Drack,pro se Complainant, do hereby certify that I have served a copy of the forgoing Complaint in Mandamus upon the parties below via prepaid first class US Mail at the address shown below: 6 a, Earle D. Drack, Complainant Date Brian Leinhauser, Esquire(attorney for Carlisle Borough) The MacMain Law Group, LLC 1 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Daniel K. Mathers, Esquire (Attorney for YIS/Cowden) 416 Pine Street, Suite 308 Williamsport, PA 17701 Y � EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION—LAW MS. STACY HAMILTON OPEN : NO. 13.,6-53f— C. RECORDS OFFICER AND BOROUGH 9436 OF CARLISLE, : COMPLAINT IN MANDAMUS , w# Defendants -<> V. YIS/COWDEN GROUP, INC. ' CD CERTIFICATION OF COMPLIANCE WITH DISCOVERY REQUEST I, Daniel K. Mathers, Mathers & Stapp, P.C., attorneys for third party defendant, YIS/Cowden Group, Inc., do hereby certify that a response to the Open Records Officer and Borough of Carlisle's Request for Production of Documents directed to YIS/Cowden Group, Inc. was duly served upon the requesting party, copied to the Plaintiff, this :�)&" day of November 2013. Qa.niel espe fi111y submitted, K. Mather,, Esquire Mathers & Stapp, P.C. Attorney for YIS/Cowden Group, Inc. ID #29950 416 Pine Street, Suite 308 Williamsport, PA 17701 dmatherska MathersStapp.com (570) 326-5171 t J �• EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION—LAW MS. STACY HAMILTON OPEN : NO. 13.-6536 RECORDS OFFICER AND BOROUGH OF CARLISLE, : COMPLAINT IN MANDAMUS Defendants V. YIS/COWDEN GROUP, INC. CERTIFICATE OF SERVICE I, Daniel K. Mathers, Esquire, Attorney for YIS/Cowden Group, Inc., do hereby certify that a true and correct copy of the Certification of Compliance was served upon Defendants in the above captioned matter on the a&14-day of J��j��,,,� , 2013, by U.S. First Class Mail upon the following: Brian Leinhauser and Tricia M. Ambrose The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Earle Drack 111 Bertolet School Road Spring City, PA 19475 (Zspe tfully submitted, Date: l ZD I � 3 ani K. Mathers, Esquire Mathers & Stapp, P.C. Attorney for YIS/Cowden Group, Inc. ID #29950 416 Pine Street, Suite 308 Williamsport, PA 17701 dmathers @MathersStapp.com (570) 326-5171 THE MACMAIN LAW GROUP, LLC By: David J. Mac Main, Esquire Attorney I.D. #59320 By: Brian H. Leinhauser, Esquire Attorney I.D. #203945 101 Lindenwood Drive Suite 160 Malvern, PA 19355 (484)-318-7106 Attorneys for Defendants Borough of Carlisle and Ms. Stacey Hamilton, Open Records Officer EARLE DRACK, Plaintiff VS. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH : OF CARLISLE, Defendants VS. YIS/COWDEN GROUP, INC NO. 13-5436 COMPLAINT IN MANDAMUS DEFENDANTS, MS. STACEY HAMILTON, OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT IN MANDAMUS NOW COMES, Defendants, Ms. Stacey Hamilton,' Open Records Officer and the Borough of Carlisle by and through their attorneys, The MacMain Law Group, LLC, Motion to Dismiss Plaintiff's Complaint in Mandamus and avers as follows; 1. On April 6, 2013, the Plaintiff submitted a Right to Know Request to Ms. Hamilton seeking documents, including the procedures used to calibrate the Borough's wireless ENRADD EJU-91 device in the last 60 days. Incorrectly identified in Plaintiff's Complaint in Mandamus as "Ms. Stacy Hamilton". 1 2. The Borough did respond to Plaintiff's Right to Know Request, however, this response did not include the procedures requested regarding the ENRADD device as the Borough was not in possession of same. See a true and correct copy of the May 8, 2013 correspondence to the Office of Open Records and affidavits of Stacey Hamilton and Sergeant Stephen Latshaw attached hereto as Exhibit "A". 3. Plaintiff appealed to the Office of Open Records as a result of Moving Defendants alleged failure to provide the requested procedures. 4. Moving Defendants immediately advised YIS/Cowden of the Office of Open Records appeal notification. See the April 30, 2013 email correspondence attached hereto as Exhibit "B". At no time did YIS/Cowden provide Moving Defendants with the requested documents. 5. Moving Defendants, following the Plaintiff's appeal contacted YIS/Cowden for the records as the Office of Open Records determined that the Borough had to provide copies of the documents. See the June 7, 2013 correspondence attached hereto as Exhibit "C". 6. YIS/Cowden would not provide copies of the requested documents to Moving Defendants so they could comply with the Office of Open Records final determination. See the June 27, 2013 correspondence attached hereto as Exhibit "D". 7. On multiple occasions, Moving Defendants sought the responsive records from YIS/Cowden. See, Exhibits "B" through "D". 8. On August 1, 2013, Plaintiff filed a Complaint in Mandamus seeking judgment against Moving Defendants and enforcement of the Right to Know Request. 9. On September 3, 2013, following another final determination regarding an identical request made by another individual for the documents regarding the calibration of 2 ENRADD EJU-91 device, Moving Defendants again advised the Office of Open Records of YIS/Cowden's refusal to provide the documents. See the September 3, 2013 correspondence attached hereto as Exhibit "E". 10. After the Office of Open Records granted the appeal of the other individual who sought the documents regarding the calibration of ENRADD EJU-91, Moving Defendants again contacted YIS/Cowden requesting that the documents be provided. See the September 20, 2013 correspondence attached hereto as Exhibit "F". 11. Additionally, Moving Defendants, though counsel entered to defend the Complaint in Mandamus, reached out by telephone to again request the records from YIS/Cowden and was advised YIS/Cowden would not provide the records absent a court order. 12. Moving Defendants, at all times made a good faith effort to obtain the documents responsive to Plaintiff's Right to Know Request. YIS/Cowden, the only entity to have possession of the documents, continually refused to provide same. See, Exhibits "B" through "F". 13. On October 15, 2013, Moving Defendants responded to Plaintiff's Complaint in Mandamus. 14. On October 15, 2013, Moving Defendants joined YIS/Cowden as a Third Party Defendant. 15. On November 12, 2013, Moving Defendants served on YIS/Cowden Request for Production of Documents. 16. On November 20, 2013, YIS/Cowden provided an affidavit and training notes responsive to the Request for Production of Documents and Plaintiffs Right to Know Request. 3 17. On November 25, 2013, these materials were provided by Moving Defendants to Plaintiff. See the November 25, 2013 correspondence and accompanying documents are attached hereto as Exhibit "G ". 18. It was determined that a portion of the affidavit contained inaccurate information, therefore, Moving Defendants requested a clarification of the affidavit from YIS /Cowden. 19. Therefore, on January 14, 2014, YIS /Cowden provided an updated affidavit. See the affidavit attached hereto as Exhibit "H ". 20. It is the position of Plaintiff that this information is not sufficient and is not responsive to the Right to Know Request. Specifically, he acknowledges that he has the documents responsive, however, seeks additional information in follow up to those documents. 21. Pursuant to the Right to Know Law, Plaintiff's Right to Know Request and the Office of Open Records, Moving Defendants were required to provide Plaintiff with the procedures used to calibrate the Borough's wireless ENRADD EJU -91 device in the last 60 days. Said documents have been produced. 22. Mandamus is an extraordinary remedy designed to compel the performance of a ministerial act or a mandatory duty. Evans v. Pennsylvania Board of Probation and Parole, 820 A.2d 904 (Pa.Cmwlth.2003), appeal quashed, 580 Pa. 550, 862 A.2d 583 (2004); Bell Atlantic Mobile Systems, Inc. v. Borough of Clifton Heights, 661 A.2d 909 (Pa.Cmwlth.1995), appeal denied, 544 Pa. 652, 676 A.2d 1194 (1996). Mandamus may only be granted where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other appropriate and adequate remedy. 4 23. Pursuant to the Right to Know Act, certain government and/or state agencies must provide public records upon request, unless otherwise prohibited by law. Right to Know Law, 65 P.S. 67.502. 24. Moving Defendants consistently made a good faith effort to provide the documents contained in Plaintiff's Right to Know Request. YIS/Cowden refused to provide the documents despite Moving Defendants repeated efforts to obtain same. Moving Defendants at no time acted in bad faith and utilized every avenue to obtain the records, in the end joining YIS/Cowden in Plaintiff's lawsuit to do so. 25. Mr. Drack was ultimately provided with the documents he requested; the procedures used to calibrate the Borough's wireless ENRADD EJU-91 device in the last 60 days. 26. He has now advised that he seeks additional information, specifically, how the devices are actually calibrated. This is not an appropriate request pursuant to the Right to Know Act. 27. Mr. Drack received the public records he has sought, therefore, the Complaint in Mandamus seeking to compel the Moving Defendants to provide same, is now moot and his Complaint must be dismissed with prejudice. 5 WHEREFORE, Moving Defendants, Ms. Stacey Hamilton, Open Records Officer and the Borough of Carlisle, respectfully request that this Court grant their Motion to Dismiss Plaintiff's Complaint in Mandamus with prejudice. Dated: By: 6 Respectfully Submitted, Brian H. Leinhauser, Esquire Attorney ID #203945 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Moving Defendants EXHIBIT A KEITH 0. BRENNEMAN RICHARD C. SNELBAKER- OF COUNSEL SNELBAKER. 8 BRENNEMAN, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 44 WEST MAIN STREET MECHANICSBURG. PENNSYLVANIA 17055 717-69743528 May 8, 2013 Benjamin Lorah, Esquire Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 4"1 Floor Harrisburg, PA 17120-0225 Re: Borough of Carlisle Office of Open Records, Docket No. AP2013-0743 Dear orah: P. 0. BOX 318 FACSIMILE (717) 697.768i 1 write this letter to you in my capacity as Solicitor of the Borough of Carlisle for purposes of addressing the appeal referenced above that was filed by Earle Drack. Mr. Drack notes in his appeal that he requested documents "from Middlesex Township". He does, however, properly identify the agency as the Borough of Carlisle. 1 am providing this response on the assumption that he intended to file an appeal on the basis of a Right To Know request submitted to the Borough of Carlisle and not Middlesex Township. Although Mr. Drack indicates that the form of the response that he received from the Borough of Carlisle "wasn't in keeping with the RTKO requirements", he does not specify in what manner the response was deficient; accordingly, 1 cannot respond to that particular. assertion. Mr. Drack noted that records addressing procedures used to calibrate the device in question were not included and no reasons were given for denying access to those records. The Open Records Officer for the Borough of Carlisle was not advised of the absence of records concerning calibration procedures until after Mr. Drack's appeal to your office. Mr. Drack's email of April 19, 2013 to the Borough of Carlisle was never received prior to the appeal; otherwise, the absence of a response with respect to those records would have been addressed. The failure to address the absence of those records was simply an oversight. SNELBAKER 8 BRENNEMAN, P.C. Benjamin Lorah, Esquire May 8,2013 Page Two The records that Mr. Drack requested with respect to the calibration procedures used to calibrate the Borough of Carlisle's wireless ENRADD EJU-91 are not, and never have been, in the possession of the Borough of Carlisle. The attached Affidavit of the Borough of Carlisle's Open Records Officer noting the absence of such records is included with this letter. In addition, also attached is the Affidavit of Sergeant Stephen Latshaw. Sergeant Latshaw has spoken to the owner of YIS/Cowden Group, Inc. and was advised that calibration information is not provided and will not be provided to the Borough of Carlisle due to such information being proprietary in nature. Accordingly, such records are not in the possession of the Borough of Carlisle and cannot be provided to Mr. Drack by the Borough of Carlisle. In accordance with the directive of Terry Mutchler, Executive Director, dated April 29, 2013 concerning agency notification of third parties, notice of the filing of this appeal was provided by the Borough of Carlisle to YIS/Cowden by email on April 30, 2013. Proof of that notice is included with this letter in the form of a copy of the email from the Borough of Carlisle that forwarded the appeal documentation in this case to YIS/Cowden. For the above reasons, we request that Mr. Drack's appeal be denied and the Borough of Carlisle not be required to take any further action. Please note that the statements made by me contained in this letter are made under penalty of perjury as set forth in 18 Pa.C.S. §4904. Yours truly, Keith 0. Brenneman KOB/sm Enclosure CC: Stacey Hamilton, Borough of Carlisle (w/enclosure) YIS/Cowden Group, Inc. (w/enclosure) AFFIDAVIT DATE: May 6, 2013 AGENCY: Borough of Carlisle REQUESTER: Earle Drack OOR APPEAL DOCKET #AP2013-0743 I, STACEY A. HAMILTON, being duly sworn according to law, depose and state as follows: 1. 1 ant the Open Records Officer for the Borough of Carlisle. 2. One of the categories of records requested by Earle Drack was a request to provide a "copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU- 91 in the past sixty days". 3. I did not receive Mr. Drack's follow-up email dated April 19, 2013 concerning the absence of calibration procedures in my response until after Mr. Drack submitted his appeal to the Office of Open Records. 4. After a diligent search, the Borough of Carlisle does not have any documentation of the procedure used to calibrate the ENRADD device. 5. It is my understanding that YIStowden Group, Inc. performs the calibration on the ENRADD devices used by the Borough of Carlisle. I verify that the statements made in this Affidavit are true and correct to the best of my knowledge, information and belief. Sworn to and subscribed before me his day of L-016-1- , 2013. Notary utilic0 My Commission Expires: COMMONWEALTH OF PENNSYLVANIA Notarial Seal Lucretia Heffiefinger, Notary Public Carlisle Boro, Cumberland County My Commission Expires AprI119, 2016 MEMBER, PENNSYLVANIA ASsooAT1ON OF NOTARIES ) (SEAL) Sac?.' A. HjniIton, Open Records Officer Ikrotigh of Carlisle AFFIDAVIT DATE: May 6, 2013 AGENCY: Borough of Carlisle REQUESTER: Earle Drack OOR APPEAL DOCKET #AP2013-0743 I, Sergeant Stephen Latshaw, being duly sworn according to law, depose and state as follows: 1. I am a police officer employed by the Borough of Carlisle. 2. 1 was provided by Stacey A. Hamilton with a copy of the Right To Know request made by Earle Drack for records from the Borough of Carlisle that included a request to provide a "copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU- 91 in the past sixty days". 3. As a result of the request for a copy of the procedures used to calibrate the Borough of Carlisle's wireless ENRADD EJU-91 units, I spoke to Jim Cowden, the owner of YIS/Cowden Group, Inc., to obtain records of the calibration procedures. Mr. Cowden informed me that such information was proprietary information, which that information is not provided and would not be provided. 4. YIS/Cowden Group, Inc. performs the calibration on the ENRADD devices used by the Borough of Carlisle. I verify that the statements made in this Affidavit are true and correct to the best of my knowledge, information and belief. cs-1 -0 • -.Za Sergeant Stephen Latshaw Sworn to and subscribed before me this J4 day of ti)/(/ ,2013. My Commission Expires: COMMONWEALTH OF PENNSY \MIA Notarial Seal Lucretia Hefflefirger, Notary Public Carlisle Boro, Cumberland County My Commission Expires April 19, M16 FE NSYL ANIA ASSOCIATION OF NOTA (SEAL) EXHIBIT B Keith O. Brenneman From: Hamilton, Stacey <shami » Sent: Tuesday, April 3O'Z013 11A0 AM To: jimcowden@yisinc.com Cc: Keith 0. Brennernan Subject: FW: Drack v. Borough of Carlisle: OOR Dkt No. AP 2013-0743 Attachments: 2013074]Drack-Boroughof[adis|e.pdf Importance: High Mr. Cowden, As per my telephone conversation with Sgt. Latshaw, I am forwarding the appeal notification that we received from the Our solicitor, Keith Brenneman, will be contacting you at some point to discuss this issue with you further. Thanks, Stacey — '__-'__'___-___-___-________-_____-_____ _ _ _ _ . From: Shuman, Carolyn [maiIto:carshuman@a,gov] Sent: Monday April 29, 2013 3:12 PM Tm:edrack@comcast'net Hamilton, Stacey Cc: Sostar,]aneUmK Subject: Drack v. Borough of Carlisle: OOR Dkt. No. AP 2013-0743 Please see the attached appeal that has been filed with the Office of Open Records. This matter has been assigned to anAppeals Officer (see page 3ofattachment for contact information). Please forward all future corresiondence directly to the Appeals Officer. Thank you. Carolyn Shuman Administrative Officer Office of Open Records Commonwealth Ke toneBui|ding 400 North Street, 4th Floor Harrisburg, PA 17120-0225 carshumanPoa.nmv www.nevvPA.cnm|wvmw.vis)tP_A.cq{D Confidentiality Notice: This electronic communication is privileged and confidential and *Intended only for the party to whom It Is addressed. 11 received in ersor, please return to sender EXHIBIT C SNELBAKER 8 BRENNEMAN, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 44 WEST MAIN STREET MECHAN I CSBUR G. PENNSYLVANIA WO 5 5 KEITH 0. BRENNEMAN RICHARD C. SNELBAKER- OF COUNSEL 717-697-8528 June 7, 2013 Jim Cowden YIS/Cowden Group, Inc. 1100 North Hartley Street York, PA 17404 Re: Office of Open Records Final Determination, Docket No. 2013-0743 Dear Mr. Cowden: P. 0. BOX 318 FACSIMILE (717)697-7681 As you are aware by our previous contact, 1 represent the Borough of Carlisle as its Solicitor. On May 8, 2013 I submitted to Attorney Lorah of the Office of Open Records a statement of the Borough of Carlisle's position with respect to the appeal filed by Earle Drack. Although I clearly informed the Office of Open Records that the records are not in the possession of the Borough and, also indicated that such information was not provided by your company to the Borough of Carlisle due to the information being proprietary, the Office of Open Records is taking the position that the documents are nonetheless in the constructive possession of the Borough and somehow can still be provided. Kindly provide me with the records of your calibration procedures so that 1 can in turn provide them to Mr. Drack. I am enclosing foryour reference a copy of the Final Determination issued by the Office of Open Records. 1 thank you for your assistance. Yours truly, Keith 0. Brenneman KOB/sm Enclosure CC: Stacey Hamilton, Borough of Carlisle (without enclosure) Matthew Candland, Manager, Borough of Carlisle (without enclosure) EXHIBIT D Mathers & Stapp, P.C. Daniel K. Mathers dmathers@MathersStapp.com Gregory A. Stapp gstapp@MathcrsStapp.com Jennifer B. Ayers jayers',r MathcrsStapp.corn VIA FAX (717) 697 -7681 HARD COPY TO FOLLOW Keith Brenneman, Esquire Snelbaker and Brenneman, PC 44 East Main St. Mechanicsburg, PA 17055 Attorneys & Counselors at Law 416 Pine Street Suite 308 Williamsport, PA 17701 June 27, 2013 RE: Office of Open Records Final Determination Docket #: 2013 -0743 Dear Attorney Brenneman: Phone: (570) 326 -5171 Fax: (570) 326-6992 www.MathersStapp.com Please be advised that this office represents the interests of YIS /Cowden Group, Inc. Mr. Cowden has provided me with your letter dated June 7, 2013 requesting information under the Final Determination. As Mr. Cowden has advised you, Mr. Drack has been making a concerted effort to obtain information from Mr. Cowden's company for a period in excess of five (5) years. Previously, in other jurisdictions we have provided an Affidavit, which I am enclosing for your jurisdiction as well. Please note that the information Mr. Drack is requesting is proprietary information; and, therefore, cannot be released. The Affidavit enclosed states as much. Should you wish to discuss this matter, please feel free to contact our office. Thank you for yr` r attention to this s ial cr. Very truly yours, GAS /cav Enclosure CC: James Cowden EXHIBIT E SNELBAKER 8 BRENNEMAN, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 44 WEST MAN STREET MECHANICSBURG, PENNSYLVANIA 17055 KEITH O. BRENNEMAN P. 0. BOX 318 RICHARD C. SNELBAKER- OF COUNSEL 'I7-697-8528 September 3, 2013 Kyle Applegate, Esquire Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 4ifi Floor Harrisburg, PA 17120-0225 FACSIMILE (717) 697.7681 Re: Borough of Carlisle Office of Open Records, Docket No. AP 2013-1518 Dear Mr. Applegate: I write this letter to you in my capacity as Solicitor of the Borough of Carlisle for purposes of addressing the appeal referenced above that was filed by Karen Meals. Ms. Meals' appeal to your office appears to be based upon the denial :of her request for the calibration procedures for the ENRADD EJU-91 speed timing device. It is clear that Ms. Meals is either copying the Right-to-Know requests of Earle D. Drack or he is assisting her in making and submitting right-to-know requests identical to those that he has made, not only to the Borough of Carlisle but to other municipalities. 1 any enclosing with letter Mr. Drack's Right-to-Know request form directed to the Borough of Carlisle dated April 6, 20.13. You will note that the four categories of records requested in his Right-to- Know request are identical in all substantial respects to the Right-to-Know request which Ms. Meals is now appealing to your office. Ms. Meals, however, appears to have added an additional request for records, most likely at Mr. Drack's urging, which Ms. Meals has identified as item No. 5 on her Right-to- Know request form. As Ms. Meals is aware, she was provided with a letter dated June 27, 2013 as well as an accompanying Affidavit provided through counsel representing YIS/Cowden Group, Inc. This letter and Affidavit was provided to me as a result.of your office's final determination issued to Docket No. AP 2013-0743 which was yet another appeal to your office initiated by Mr. Drack. I am enclosing a copy of the June 27, 2013 letter and accompanying Affidavitt As is noted in the letter, the information that Mr. Drack sought and now Ms. Meals seeks will not be provided by YIS/Cowden Group, Inc. to the: Borough of Carlisle since those records are considered confidential and proprietary. ' The Affidavit made reference to in this letter and which Affidavit is quoted was an original signed and notarized Affidavit provided to the Solicitor for the Borough of Carlisle under cover of the letter dated June 27, 2013 attached. SNELBAICER 8 BRENNEMAN, P.C. Kyle Applegate, Esquire September 3, 2013 Page Two As noted in Paragraph 14 of the attached Affidavit, Mr. Cowden of YIS/Cowden Group, Inc. under penalty of perjury notes the following concerning Mr. Drack's efforts, as apparently now joined in by Ms. Meals: "Affiant represents that Mr. Drack has been engaged in a dedicated and excessive campaign, extending over the last five years, to inappropriately obtain confidential and proprietary information and trade secrets of the Corporations [YIS/Cowden Group, Inc. and YIS, Inc.] by and through a number of government agencies, to wit: PennDOT, Pennsylvania Senate Transportation Committee, PA Chiefs of Police Association and numerous openrecords and right to know requests . . Mr. Drack's repeated efforts are bordering on harassment causing the Corporations to question the actual motive and sincerity of Mr. Drack's request in the subject proceeding." YIS/Cowden Group, Inc. has refused and continues to refuse to provide to the Borough of Carlisle and other municipalities the very procedures for which Mr. Drack and now Ms. Meals requests. In accordance with the directive of Terry Mulcher, Executive. Director, dated August 23, 2013, concerning agency notification to third parties, notice of the filing of this appeal and the documentation associated therewith was provided by me to James E. Cowden by email on August 30, 2013. A copy of this email as proof of notice is included with this letter. For the above reasons, we request that Ms. Meals' .appeal be denied and the Borough of Carlisle not be required to take any further action. Please note that the statements made by me contained in this letter are made under penalty of perjury as set forth in 18 Pa. Pa.C.S. § 4904. Yours truly, Keith a Brenneman KOB/sm CC: Stacey Hamilton, Borough of Carlisle (w/enclosure) YIS/Cowden Group, Inc. (w/enclosure) EXHIBIT F KEITH 0. BRENNEMAN RICHARD C. SNELBAKER- OF COUNSEL Gregory A. Stapp, Esquire Mathers & Stapp, P.C. 416 Pine Street Suite 308 Williamsport, PA 17701 SNELBAKER 8 BRENNEMAN, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 44 WEST MAIN STREET MECHANICSBURG, PENNSYLVANIA 17055 717-697-8528 September 20, 2013 Re: Office of Open Records Final Determination AP 2013-1518 Dear Mr. Stapp: 1 write to you in my capacity as Solicitor for the Borough 'of Carlisle. P. O. BOX 318 FACSIMILE (717)697-7681 Your file will reflect that on June 27, 2013 you wrote to me in response to my letter ofJune 7, 2013 to Mr. Cowden concerning a Final Determination that was issued by the Office of Open Records with respect to an appeal by Earle Drack docketed to No. 2013-0743. 1 had provided Mr. Cowden notice of an appeal to the Office of Open Records that was filed by Karen Meals. That appeal was made due to the Borough not providing calibration records with respect to the ENRADD ERJ-91 speed timing device. I am enclosing with this letter the submission I made to the Office of Open Records with respect to Karen Meals' appeal outlining the Borough of Carlisle's position that it was unable to provide record of the calibration procedures because YIS/Cowden Group, Inc. has refused to provide those records to the Borough of Carlisle. You will note that in the response which I submitted on September 3, 2013.1 provided a copy of not only your correspondence of June 27, 2013, but also a copy of the Affidavit that you included with that letter. As you will note by copy of the determination issued to Docket No. AP 3013-1518 with respect to the appeal of Karen Meals, the Office of Open Records granted the appeal finding again that the Borough of Carlisle had failed to meet its burden of proof that the records requested concerning the calibration procedures are exempt from disclosure. I again request that you provide whatever calibration records that you have with respect to the ENRADD EJU-91 speed timing device so they in turn can be provided to Ms. Meals and Mr. Drack. If it is your position on behalf of your client that the records cannot be provided, please provide an SNELBAKER 8 BREI,TNE/vtAN, P.C. Gregory A. Stapp, Esquire September 20, 2013 Page Two explanation as to why you refuse to provide those records. The Borough of Carlisle is being caught between the position you and your client are talcing concerning the confidentially or proprietary nature of the records and what now have been substantially identical requests for such records under the Right-to-Know Laws submitted by Mr. Drack and.now Ms. Meals. I thank you for your attention to this request. Yours-truly, Keith 0. Brenneman KOB/sm Enclosures CC: Matthew Candland, Borough Manager (without enclosure EXHIBIT G AThe MacMain Law Group LLC 101 T.indenwood Drive • Suite 160 • Malvern, PA 19355 • www.maemainlaw.com nlaw.com Brian H. Leinhauser Telephone: (484) 318 -7802 Facsimile: (484) 328 -3996 Email: bleinhauser@macmainlaw.com November 25, 2013 Via First Class Mail Earle Drack 111 Bertolet School Road Spring City, PA 19475 Re: Earle Drack v. Ms. Stacy Hamilton, et al, CCP of Cumberland County, PA Civil Docket No. 13 -6536 Dear Mr. Drack, Enclosed please find a copy of the Affidavit with attached Exhibit "A" along with the Certification of Compliance with Discovery .Request received by my office on November 22, 2013 with regard to the above - captioned matter. Should you have any questions, please feel free to contact me. Brian H. Leinhauser BHL /ejt Enclosures EARLE DRACK, Plaintiff v. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE Defendants v. YIS/COWDEN GROUP, INC. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION — LAW : NO. 13.-6536 : COMPLAINT IN MANDAMUS AFFIDAVIT I, James E. Cowden, being duly sworn according to law depose and say that: 1 1 am an adult individual and have capacity to make this Affidavit. 2. I am the Vice-President of YIS/Cowden Group, Inc., a Pennsylvania business corporation, and I am duly authorized to make this Affidavit on its behalf, having personal knowledge of the matters herein contained. 3 Pursuant to my understanding of the Opinion of the Commonwealth Court, Docket Number 2123 C.D. 2012, filed July 16, 2013, on October 24, 2013, I tendered to the Borough of Carlisle through their attorney, Brian Leinhauser, as Exhibit "C" attached to New Matter filed under the above captioned heading, all training notes used by YTS/Cowden Group, Inc. which is a single page document entitled 'ENRADD Test v1.0", a copy which is likewise attached to this Affidavit as Exhibit "A". These are the sole training notes as referenced in the Court's Opinion. 4. That, as I have stated in the subject litigation and in similar pieces of litigation filed by Mr. Drack in other tribunals of this Commonwealth, the calibration procedures used as to this ENRADD EJU-91 wireless device are set forth in Title 67 of Pa. Code Section 105.51, which regulations are a matter of public record. 5. The procedures used, as set forth in Title 67 of Pa. Code Section 105.51, are the exact procedures used to calibrate the wireless ENRADD E.TU-91 wireless device in the sixty days preceding April 6, 2013. 6. That YIS/Cowden Group, Inc. preserves it's raised defenses of confidential and proprietary information as to methodologies, techniques or processes for the design, manufacturing, testing and calibration of ENRADD EJU-91 devices, except as set forth herein, whereby such information is exempt from disclosure under the Right to Know Law. 7. The continued demands of Mr. Drack, in this litigation and other litigations filed within this Commonwealth, for YIS/Cowden Group, Inc. to produce records that don't exist creates a financial and time requirement hardship upon YiS/CowderiGrOup,"Inc. whereby YIS/Cowden Group, Inc. reserves all rights to pursue a claim for damages, including but not limited to business interruption, from Mr. Drack. Subscribed and sworn to before me this day of kavetAiLtA._ , 201 . Notary Public 'COMMONWEALTH Of PENNSYLVANIA NOTARIAL SEAL ANN MARIE FULLERTON, NOTARY PUBLIC 'CITY OF WILLIAMSPORT, LYCOMING COUNTY MY COMMISSION EXPIRES DEC. 17, 2015 ENRADD Test v1.0 1. Connect NCRS and ENRADD head to power source 2. Turn head on and press Reset button 3 times to run internal test, head will display 40mph each time a. If unit has Data Collection: After internal test, head will display "Stand-by mode" b. Press Reset once more and head will briefly display "Master Re linking", then "Master RF' 3. Align NCRS by using alignment switch on the receiver bar to test the high side, then the low side for alignment 4. Place lane switch on head to lane 1 5. Run your hand through low side beam, head will display 7mph 6. Run your hand through low side beam again, head will display "Check Low Freq Sensor Alignment" 7. Place lane switch on head to lane 2 8. Run your hand through high side beam, head will display 7mph 9. Run your hand through high side beam again, head will display "Check High Freq Sensor Alignment" 10_ Place lock switch on, then off and verify that it changes on the display 11. Remove NCRS from power. You are now ready to check speeds by connecting head to ENRADD/ESP tester EXHIBIT H EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff v. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE, Defendants v. YIS /COWDEN GROUP, INC. : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION — LAW : NO. 13. -6536 : COMPLAINT IN MANDAMUS AFFIDAVIT, I, James E. Cowden, being duly sworn according to law depose and say that: 1. I am an adult individual and have capacity to make this Affidavit. 2. I am the Vice - President of YIS /Cowden Group, Inc., a Pennsylvania business corporation, and I am duly authorized to make this Affidavit on its behalf, having personal knowledge of the matters herein contained. 3. Pursuant to my understanding of the Opinion of the Commonwealth Court, Docket Number 2123 C.D. 2012, filed July 16, 2013, on October 24, 2013, I tendered to the Borough of Carlisle through their attorney, Brian Leinhauser, as Exhibit "C" attached to New Matter filed under the above captioned heading, all training notes used by YIS /Cowden Group, Inc. which is a single page document entitled " ENRADD Test v1.0 ", a copy which is likewise attached to this Affidavit as Exhibit "A ". These are the sole training notes as referenced in the Court's Opinion. 4. That, as I have stated in the subject litigation and in similar pieces of litigation filed by Mr. Drack in other tribunals of this Commonwealth, the calibration procedures used as to this ENRADD EJU -91 wireless device are set forth in Title 67 of Pa. Code Section 105.56, which regulations are a matter of public record. 5. The procedures used, as set forth in Title 67 of Pa. Code Section 105.56, are the exact procedures used to calibrate the wireless ENRADD EJU -91 wireless device in the sixty days preceding April 6, 2013. 6. That YIS /Cowden Group, Inc. preserves it's raised defenses of confidential and proprietary information as to methodologies, techniques or processes for the design, manufacturing, testing and calibration of ENRADD EJU -91 devices, except as set forth herein, whereby such information is exempt from disclosure under the Right to Know Law. 7. The continued demands of Mr. Drack, in this litigation and other litigations filed within this Commonwealth, for YIS /Cowden Group, Inc. to produce records that don't exist creates a financial and time requirement hardship upon YIS /Cowden Group, Inc. whereby YIS /Cowden Group, Inc. reserves all rights to pursue a claim for damages, including but not limited to business interruption, from Mr. Drack. Subscribed and sworn to before me ea this day of � f�AA/ 014. Notary Public COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL ANN MARIE FULLERTON, NOTARY PUBLIC CITY OF WILLIAMSPORT, LYCOMING COUNTY MY COMMISSION EXPIRES DEC. 17, 2015 THE MACMAIN LAW GROUP, LLC By: David J. MacMain, Esquire Attorney I.D. #59320 By: Brian Leinhauser, Esquire Attorney I.D. # 203945 101 Lindenwood Drive Suite 160 Malvern, PA 19355 (484)- 318 -7106 EARLE DRACK, Plaintiff vs. Attorneys for Defendants Borough of Carlisle and Ms. Stacey Hamilton, Open Records Officer : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 13 -5436 MS. STACEY HAMILTON OPEN RECORDS OFFICER AND BOROUGH : COMPLAINT IN MANDAMUS OF CARLISLE, Defendants vs. YIS /COWDEN GROUP, INC CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Motion to Dismiss via United States First Class Mail, Postage Pre -Paid, upon the following: Dated: 3 C42C' 1 ("( Earle Drack 111 Bertolet School Road Spring City, PA 19475 By: 7 THE MAC - 1 . • W GROUP, LLC r fp ._,Airaw.4._ an H. ei auser, Esquire Attorney ID #203945 The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Attorney for Moving Defendants EARLE DRACK, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE, DEFENDANTS YIS/COWDEN GROUP, INC. AND NOW, this : 13-5436 CIVIL TERM ORDER OF COURT day of March, 2014, upon consideration of Defendants, Ms. Stacy Hamilton Open Records Officer and Borough of Carlisle's Motion to Dismiss Plaintiff's Complaint in Mandamus, a Rule is issued on Plaintiff to show cause why the requested relief should not be granted. Rule returnable twenty (20) days after service. Any response filed shall be forwarded by the Prothonotary to chambers. By the Court, Xarl Drack 111 Bertolet School Road Spring City, PA 19475 Mathers, Esquire 416 Pine Street Suite 308 Williamsport, PA 17701 Brian H. Leinhauser, Esquire For Defendants Q exf es 31420V sal Albert H. Masland, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle vs. YIS /Cowden Group Civil Action No. 13 -5436 Complaint in Mandamus Filed by and on behalf of: Earle Drack 111 Bertolet School RD Spring City, PA 19475 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle VS. YIS /Cowden Group * Civil Action No. 13 -5436 Complaint in Mandamus RESPONSE TO DEFENDANT MOTION TO DISMISS • AND NOW comes Earle Drack, by and for himself as a pro se litigant, and files the within RESPONSE TO DEFENDANT MOTION TO DISMISS. "T7 1) Admitted. 2) Neither admitted nor denied. Referenced response is a document which speaks for itself. 3) Admitted. 4) Neither admitted nor denied. Plaintiff has no actual knowledge of alleged facts. 5) Neither admitted nor denied. Referenced correspondence is a document which speaks for itself. 6) Neither admitted nor denied. Referenced correspondence is a document which speaks for itself. 7) Neither admitted nor denied. Referenced correspondence is a document which speaks for itself. 2 8) Admitted. 9) Neither admitted nor denied. Referenced correspondence is a document which speaks for itself. 10) Neither admitted nor denied. Referenced correspondence is a document which speaks for itself. 11) Neither admitted nor denied. Plaintiff has no actual knowledge of alleged facts. 12) Denied. Defendant's efforts fell short of good faith when they refused to take action against YIS /Cowden necessary to obtain the records in question and comply with the OOR directive to provide the requested records. By refusing to take legal steps to compel YIS /Cowden to produce the requested records, and to state that it would not do so and that I would need to go to court if I wished to compel compliance with the OOR, Defendant evidenced clear bad faith. Simply asking for the records was not enough if the request was refused; good faith efforts would require defendant to take all reasonable steps available to it, which it refused to do. Furthermore, Defendant continues to fail to make a good faith effort to comply with the OOR directive and produce the documents. See Appendix A. 13) Admitted. 14) Admitted. 15) Neither admitted nor denied. Plaintiff has no actual knowledge of alleged facts. 16) Denied. The referenced affidavit was not responsive with respect to "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU -91 in the past 60 days." Instead, the affidavit pointed to a portion of the PA Code (67 PA Code 105.51) which is unused and reserved. 3 17) Admitted that materials were provided. 18) Denied as stated. Drack pointed out that the affidavit could not be considered responsive, despite Defendant claiming it was. See email dated Dec. 2, 2103 in Appendix B. 19) Neither admitted nor denied. Referenced document speaks for itself. 20) Denied. Plaintiff's position is mischaracterized by Defense Counsel. Plaintiff's position is in fact well documented in his correspondence with Defense Counsel in Exhibit A. 21) Denied. Responsive records have not been produced and reference to 67 PA Code 105.56 (without specifying which subsection a, b, c, d, or e), which contains five (5) separate procedures for five (5) separate devices cannot be considered specific enough to be responsive. While one would reasonably assume that the reference is to 105.56(e) entitled "ENRADD Model EJU -91 ", the fact that Defendant and YIS /Cowden carefully avoid making that claim are evidence of bad faith in that there appears to be an attempt to mislead the Court and the Plaintiff. These distinctions are clearly laid out in the correspondence with Defense Counsel shown in Exhibit A, which shows that Plaintiff's position is not faithfully reflected in Defendant's motion. Defendant is well aware of these distinctions but willfully declines to engage on that issue. 22) Neither admitted nor denied. Matter of law. 23) Neither admitted nor denied. Matter of law. 24) Denied. Moving Defendant consistently failed to take proactive steps to compel YIS /Cowden to provide the responsive records, instead indicating that it would take no more steps and Plaintiff Drack would need to go to Court if he wished to have the Borough comply with the OOR directive (see Complaint in Mandamus filing). Defendant only enjoined Third Party Defendant AFTER it forced Drack to spend the time 4 and money to file the instant Complaint, evidencing its bad faith, and to suggest otherwise now is still further evidence of bad faith. 25) Denied. Drack has not been provided the responsive documents or an affidavit of non- existence if in fact the documents do not exist. 26) Denied. Drack is not advised, nor does he advise, that he seeks "additional information ". He seeks the same records he has been seeking for many, many months and which the defendant continues to deny access to in violation of the OOR directive and the RTKL. This is either: 1) Copies of the requested records 2) Description of the requested records with sufficient specificity to identify them uniquely in the PA Code. 3) An affidavit of non - existence if in fact the requested records do not exist. It should be noted that it is as much a violation of the RTKL to hold a non - responsive document as responsive as it is to withhold a responsive document. This is true even if the requested document does not exist. In many cases the non - existence of a document which ought to exist is of importance to the public. If Defendants are allowed to proceed as they have been then it becomes easier for agencies to hide the fact that a required record does not exist or that a procedure actually used is not the one which is required by regulation. To simply say that a record is in the PA Code, or in 67 PA Code, or in 67 PA Code 105.56, is not responsive if the referenced Code or section of the Code contains many different records some /all or none of which is actually responsive. 5 I respectfully request that the Court hold a hearing in this case, and ask the Defendant and Third Party Defendant to specify clearly which, if any, part of 67 PA Code 105.56 is responsive in this case. The Court may be surprised to hear that answer, and should be aware that 105.56(0 is a) Not an exact procedure, so not responsive on its face b) Applicable only to equipment and devices USED WITH a particular non -radar device (like ENRADD EJU -91 or any of the other four devices for which calibration procedures are provided in a — e), so again non - responsive on its face. 27) Denied. Drack has not received the record or an affidavit of non - existence. The Compliant is not moot and should not be dismissed. Rather, a hearing should be held without further delay (this case has been inactive from Nov. 22 until the recent filing by the Defendant — a period of nearly 4 months). Respectfully Submitted, Earle D. Drack, Complainant 6 Appendix A From: prim Leinhauser To: Earle Drack Subject: RE: Recent Cowden response to request for documents Date: Monday, February 24, 2014 4:53:51 PM Mr. Drack, My client is weighing its options and I will let you know when I have a response. As I have stated to you, I believe we have provided a responsive record and have raised your concerns with my client. Once I have a response, I will let you know. Very truly yours, Brian Brian H. Leinhauser The Macin Law Group LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Office — 484 - 318 -7802 Fax — 484 - 328 -3996 BLeinhauserPMacMainLaw.com From: Earle Drack [mailto:edrack @comcast.net] Sent: Monday, February 24, 2014 4:46 PM To: Brian Leinhauser Subject: FW: Recent Cowden response to request for documents Mr. Leinhauser, I wanted to check and see if you still plan to file a request for dismissal in this case, or if instead you will work to provide either the responsive record or an affidavit confirming non - existence of the requested record. Please advise. If I do not hear back I will assume the former. Thank you and Best Regards, Earle Drack From: Earle Drack [mailto:edrackCa>comcast.net] Sent: Wednesday, February 19, 2014 9:36 AM To: 'Brian Leinhauser' Subject: RE: Recent Cowden response to request for documents Updated to include my having to incur the time and monetary costs to file a Mandamus Complaint. From: Earle Drack [mailto:edrack(&comcast.net] Sent: Wednesday, February 19, 2014 9:27 AM To: 'Brian Leinhauser' Subject: RE: Recent Cowden response to request for documents Please also note that my request in this case was met with: 1) Purported grant of access by the Borough, but failure to provide the calibration procedure 2) A claim that the calibration procedure is confidential /proprietary/trade- secret 3) After the OOR found in my favor, failure to provide the required record despite numerous requests 4) The Borough solicitor telling me that despite the OOR directive, no action would be taken to comply and that I would have to take action if I wanted the record 5) After being forced to incur the cost and time to file a Complaint in Mandamus, a sworn affidavit saying the procedure used was similar to 67 PA Code 105.56(e) but that a different "delay time" (sic), was used, specifically the one from 67 PA Code 105.56(d) 6) When I pointed out that this information did not constitute the provision of the requested record, an sworn affidavit affirming that the 67 PA Code 105.51 is the requested record 7) When I pointed out that 67 PA Code 105.51 is a blank, reserved section of the PA Code, a sworn affidavit that 67 PA Code 105.56 is the requested record 8) When I pointed out that 67 PA Code 105.56 comprises 5 different procedures and therefore is not sufficiently specific to identify the requested record, and that the earlier affidavit contradicts the premise that any of the sections are responsive, a claim from you that it is sufficient Does that match your understanding as well, Mr. Leinhauser, and if so can you honestly say that your client (via you) and Mr. Cowden are acting in good faith? And from your client's perspective, do you not see that this is their last chance to repudiate the current unsupportable position and replace it with a position which sides with the rights of the Borough residents to know exactly what they are getting for their money re: the calibration contract? What happens when a Borough resident asks why the Borough would accept such a position by its vendor? I find it hard to understand why you would not advise your client to take advantage of this last opportunity rather than locking them into a position which is so clearly unsupportable. Regards, Earle Drack 610- 506 -5701 From: Earle Drack [mailto:edrack(&comcast.net] Sent: Monday, February 17, 2014 7:05 PM To: 'Brian Leinhauser' Cc: shamilton(acarlislepa.org Subject: RE: Recent Cowden response to request for documents Also, Mr. Leinhauser, as I have made clear many times I am not seeking answers to questions; I am seeking a record which the OOR has directed the Borough to provide, and which the Borough continues to fail to provide or to take the steps necessary to retrieve and provide. Regards, Earle Drack From: Earle Drack [mailto:edrack(acomcast.net] Sent: Monday, February 17, 2014 6:57 PM To: 'Brian Leinhauser Cc: shamiltor acarlislepa.org Subject: RE: Recent Cowden response to request for documents I believe you have missed the point, Mr. Leinhauser, or, to be more accurate, are failing to acknowledge it. Just because the answer by Cowden "mentions" 105.56(e) and 105.56(d) does not mean that either of them or both of them together comprise the responsive record. As I pointed out in my answer to Cowden's filing, one cannot cobble together bits and pieces of public documents, suing some parts here and others there, and then claim that the responsive record comprises one or both of those documents. As I am certain both you and Mr. Cowden are aware, your chosen response to my request, if allowed to stand, would enable Cowden and /or Carlisle to continue to say that the calibrations are performed according to 105.56 which would lead a reasonable person to believe they are being done in exact accordance with the PA Code requirements for the ENRADD EJU -91. In fact, as you and Cowden are well aware, that does not appear to be the case based on Cowden's own sworn affirmations. The linguistic gymnastics now being performed by you and Mr. Cowden in an attempt to avoid acknowledging that fact are the evidence of bad faith to which I have been alluding and which, if you are honest with yourself, you should recognize. You and the Borough have it in your power to point out the inconsistencies in Mr. Cowden's various sworn affirmations and to request either a specific responsive record or an affidavit of non - existence. I encourage you to do so for the benefit of your client and your own integrity. When all of this becomes public, and it will, your client will not look good for pursuing this strategy. It is not too late to get your client on the right side of this issue, Mr. Leinhauser, but it is getting very close to that point. I would also encourage the Borough to consider the ramifications of continuing to write citations based on ENRADD after being privy to Mr. Cowden's various affirmations with respect to how they are calibrated. If in fact that the Borough is aware that their ENRADD is not calibrated as specified in 67 PA Code 105.56(e) then the consequences may (and should, I believe) reach far beyond a mere "not guilty" verdict for the motorist. It raises questions as to systemic and willful violation of motorist rights. It also raises questions as to how well the Borough government is performing its fiduciary duties if they continue to willingly pay for calibration services which are supposed to adhere to the PA Code but are in fact aware that such calibrations are not being done according to 67 PA Code 105.56(e). Best Regards, Earle Drack 610- 506 -5701 From: Brian Leinhauser [ mailto :BLeinhauser(amacmainlaw.com] Sent: Monday, February 17, 2014 6:30 PM To: Earle Drack Subject: RE: Recent Cowden response to request for documents Mr. Drack, I believe you have missed the point of our conversation. Cowden, by its own pleading has indicated in this action the procedures used (as described in the excerpt below from its answer. In turn, I have received from them an affidavit confirming this and provided it to you with the documents that are indicated in the pleadings. (105.56 if the Pa. Code.). You have received the answer to your questions (in the Answer to the third party complaint) and the documents that contain the procedures described. Since these have been provided, the Borough has fulfilled its obligations and will move to dismiss the claim. By the very pleading filed by Cowden, I cannot provide you with a more specific statement of the procedure used (beyond what is already provided) and no additional documents exist beyond what has been provided based on my investigation on the part of the Borough. The statement indicates that the document responsive is 105.56 including section d and e which are both referenced in the answer provided by Cowden. If this record contains both sections referenced, then I have provided the responsive document. In addition, the Answer filed by Cowden's counsel indicates that these two subsections of the record provided are used. Please call me with any questions. Brian Brian H. Leinhauser The MacMain Law Group LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Office — 484 - 318 -7802 Fax — 484 - 328 -3996 BLeinhauserPMacMainLaw.com From: Earle Drack [mailto:edrackPcomcast.net] Sent: Monday, February 17, 2014 12:15 PM To: shamiltonPcarlislepa.org Cc: Brian Leinhauser Subject: FW: Recent Cowden response to request for documents FYI, Ms. Hamilton. From: Earle Drack [mailto:edrackChcomcast.net] Sent: Monday, February 17, 2014 11:56 AM To: 'Brian Leinhauser' Subject: RE: Recent Cowden response to request for documents This is what I referred to below, Mr. Leinhauser. If a different "delay time" (sic) that the one called out in 105.56(e) is used, then 105.56(e) is not responsive as the exact procedure actually used. If the "delay time" (sic) used is instead the one specified in 105.56(d), then simply identifying 105.56 as responsive is certainly not a valid way of identifying a responsive record since 105.56 contains no procedure which uses the constant/delay time in (d) with the other procedures in (e). If that is what is actually done, and if no record exists which comprises a procedure that calls for the use of the constant/delay time specified in 105.56(d) while calibrating an ENRADD EJU -91, it is not accurate to say that 67 PA Code 105.56 is responsive; rather, it would then appear that the requested record does not exist. If, however, such a procedure calling for the use of the constant/delay time specified in 105.56(d) while calibrating an ENRADD EJU -91, then that record is responsive and must be provided per the OOR decision. ©. 'floc proscdurci used idr calibrating and tiistingthe liKRATDE1#1,91 Wirelesg Sysiem are thaw set forth. in 67 PA Code 1 05,56 i h deb,' time adjusted for three foot spacing per 6y71'A Cude 5105,5 %(e)(2)0I end (iii), The &by time katiwil farthr c foot sp c'rng,.b} industry st.todards tmd asset forth ender sahsectiun (4X iii), is adjusted tP 205. 1. As all of the foregoing procedures cod .mtnrtkrs of -f -calibration and costing are etptcssly ter forth in .tcectisrt 103 t6 o f Title 67 of PA Code, at here nab %'e';so !prat, nn disclotablc dr.+aanents exists either wiih the Btuoapit of Carlisle tit YI51t'u±rldcn Group, Inc. As repeatedly MAlt•i :and pied by Xifi /Cgti doo,Grottp., Inc.. these p+rocedu_rec exist a; ao nutter ofpublic ward i» Ilk 67 nfPA Cede ar 1 Y1S/Co++denOwup. lne. rollows those approved procedures. Best Regards, Earle Drack From: Earle Drack [mailto:edrack(@comcast.net] Sent: Monday, February 17, 2014 10:52 AM To: 'Brian Leinhauser' Subject: RE: Recent Cowden response to request for documents Mr. Leinhauser, Thank you for making the time for our phone discussion this morning. It was my understanding that your client does not plan to identify and provide the actual record in question, or to identify it with sufficient specificity such that the identification could be considered provision of the responsive record. As you have acknowledged, 67 PA Code 105.56 comprises five (5) different calibration procedures. You agreed that reference to the PA Code in its entirety would not be sufficiently specific to be considered responsive, so I do not see how you can advocate for the position that reference to a section of that code which contains five (5) different procedures is specific enough to be considered responsive. It also appears to be your position that the Borough has complied with the OOR by identifying 67 PA Code 105.56 as the responsive record while acknowledging that the actual requested record may be only an unidentified portion of that section, and that the Borough will not make the small incremental effort required to identify which, if any, of those five (5) procedures comprise the requested record for the exact procedure actually used to calibrate the Borough's ENRADD device(s). As I indicated, it is difficult for me to understand how that position can be grounded in any kind of logic and it therefore appears to me to be evidence of bad faith on the part of the Borough. I respectfully request once more that the Borough provide the requested record or else identify it with sufficient specificity that it is uniquely identifiable among the five (5) procedures in 67 PA Code 105.56. I will also respectfully remind you that as an officer of the court you have an obligation to ensure that you do not hold forth any sworn statements you have reason to believe are untrue. In that spirit I encourage you to consider Mr. Cowden's latest affidavit in contrast to his earlier affidavit which indicated that 105.56(e) is NOT exactly what his company uses to calibrate the borough's ENRADD. If reference to only 105.56 and not 105.56(e) or 105.56(d) is an attempt to withhold from me, as the requestor, the actual responsive record OR the fact that such record does not exist, I would expect you would not be a party to such efforts. I would expect you also understand that it is as much a violation of the RTKL to refuse to acknowledge that a record does not exist as it is to refuse to acknowledge existence of a record. Best Regards, Earle Drack From: Brian Leinhauser [ mailto :BLeinhauser(@macmainlaw.com] Sent: Monday, February 10, 2014 6:02 PM To: Earle Drack Subject: RE: Recent Cowden response to request for documents Mr. Drack, I have been in and out of conferences all day. I am in depositions tomorrow, but expect to be free after 3:00. If you would like to speak, please try me at that time on my mobile phone. 484- 886 -7800. Thanks, Brian Brian H. Leinhauser AThe Mac Main Law Group LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Office — 484 - 318 -7802 Fax — 484 - 328 -3996 BLeinhauserPMacMainLaw.com. From: Earle Drack [mailto:edrackPcomcast.net] Sent: Monday, February 10, 2014 10:22 AM To: Brian Leinhauser Subject: RE: Recent Cowden response to request for documents Mr. Leinhauser, are you available for a chat today to discuss? Thanks and Best Regards, Earle From: Earle Drack [mailto:edrack(@comcast.net] Sent: Friday, February 07, 2014 7:03 PM To: Brian Leinhauser Subject: Re: Recent Cowden response to request for documents Mr. Leinhauser, We do seem to agree on the distinction between records and information. In this case, however, the information that the procedures used is contained within 105.56 is not responsive. Rather, the borough is obliged to provide the requested record (and only that record) or to identify it with sufficient specificity. Best regards, Earle Drack On Feb 7, 2014, at 6:32 PM, Brian Leinhauser <BLeinhauserPmacmainlaw.com> wrote: Mr. Drack, As you are aware, the obligation in responding to the RTKA request was to procure the document that contains the procedure used. The Borough has procured the document and an affidavit confirming that the procedure in the Pa. Code was, in fact, the procedure used. Under such circumstances, I believe that we have fulfilled our obligations under the Order from the OOR. My hope would be that you would agree to withdraw this claim and be satisfied. As you have pointed out in the past, there is a difference between "information" which you are looking for, and "records ", which we have provided to you in compliance with our obligations. I am happy to discuss this with you, but will be preparing a petition for the Court to dismiss the enforcement matter as moot. Very truly yours, Brian Brian H. Leinhauser <1mage001.gif> 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Office — 484 - 318 -7802 Fax — 484 - 328 -3996 BLeinhauserPMacMainLaw.com • From: Earle Drack [mailto:edrack @comcast.net] Sent: Friday, February 07, 2014 2:18 PM To: Brian Leinhauser Subject: RE: Recent Cowden response to request for documents Any thoughts on this, Mr. Leinhauser? Thanks and Best Regards, Earle Drack From: Earle Drack [mailto:edrackacomcast.net] Sent: Wednesday, January 29, 2014 9:39 AM To: Brian Leinhauser (BLeinhauser(macmainlaw.com) Subject: FW: Recent Cowden response to request for documents Thank you, Mr. Leinhauser. As discussed earlier, and as can be seen by review of 67 PA Code 105.56, that section comprises 5 different calibration procedures for 5 different devices (105.56.a through 105.56.e). Mr. Cowden's affidavit does not specify which one(s) of these procedures are used, or if all of them are used, when his company calibrated the Borough's ENRADD EJU -91 device. Therefore, I trust you agree that reference to that broad section of the PA Code is insufficiently specific to be considered provision of the responsive record as required by the OOR directive. Please let me know your thoughts on this matter, and whether Carlisle Borough will be taking steps to provide the responsive record per the OOR directive. Best Regards, Earle Drack 610- 506 -5701 From: Brian Leinhauser [ mailto :BLeinhauser(tmacmainlaw.com] Sent: Wednesday, January 29, 2014 9:08 AM To: Earle Drack Subject: RE: Recent Cowden response to request for documents Mr. Drack, Attached please find documents responsive to our follow -up request from YIS /Cowden. Also attached for your convenience is 105 Pa Code section 105.56. Please contact me at your convenience to discuss this matter. Very truly yours, Brian Brian H. Leinhauser <image00l.gif> 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Office —4O4-3l8-78O2 Fax — 484-328-3996 ; .o«~ ~ ^}u~ u,n. vx Appendix g Row ens Good morning, Brian. am witting wIlh respect to 1M response Iron n$/Cowden to your request fora record watch gemalalkesthe exact procedure aduafy osed to obbrate/test the ENRADDER491. I MAYO you ogres fhatttairrtlmertoeM07 PA Code 106.51 (see below from Bop' /Mnwi nnnaw rmNwswrldgtarrt5TI ivder105ht0551 glr) k not responsh,e, Moreover.. apparent simultaneous tharacteNatbn of the requested record as be'ug publioelly available, proprietary, and nonmltlant Is, at best, bttane. tor" a Tbeon:iaans efdeo i4i.S2 attoprxdhme23. 197& eff heimx 74, 197S,6P.H. !Mt amv3edDeamber 3,x. 1971,ei[ reDeamM 14, 197 &8Pe.0. 3572 ;amendd3 4r. i$. 2979. eR ri23day It 1979.9 1412, repubb.d zed eanp,kdAugust 1, 1980. 9Seaiva Aopat 2, 1919,109.9.3199.mam,ded70ovembee 12,1982, effective 7ovembrr 13, 1982. IT 0.3940. revved Mardi 34.1904. effective Marzb 31, 1923, 14 Pall. IOW. Immediately prceadap art appears araerial pate (83723) sad. wa�r�r�wrw,.a.a.wrmarrar ..x a..ae aaras..a• +rat aw+ are you able to day whether or not Cedlde will be challenging tills as nomreaponeroe, or wile I be forced to do sot Thanks Best Regards. Ear*Drack IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack VS. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle VS. YIS/Cowden Group Civil Action No. 13-5436 Complaint in Mandamus PROOF OF SERVICE I, Earle Drack, pro se Complainant, do hereby certify that 1 have served a copy of the forgoing Reply to Defendant Motion to Dismiss upon the parties below via prepaid first class US Mail at the address shown below: Earle D. Drack, Complainant Date Brian Leinhauser, Esquire (attorney for Carlisle Borough) The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Daniel K. Mathers, Esquire (Attorney for YIS/Cowden) 416 Pine Street, Suite 308 Williamsport, PA 17701 a EARLE DRACK, Plaintiff v. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE, - Defendants v. YIS /COWDEN GROUP, INC. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION — LAW • • 13 -513(0 : NO.-4355:3Z- : COMPLAINT IN MANDAMUS JOINDER TO MOTION OF ORIGINAL DEFENDANTS TO DISMISS PLAINTIFF'S COMPLAINT IN MANDAMUS AND NOW, comes YIS /Cowden Group, Inc., by and through their attorneys, Daniel K. Mathers, Mathers & Stapp, P.C., joining into the Original Defendants' request that the Plaintiff's Complaint in Mandamus be dismissed and in support thereof avers as follows: 1. The averments of Defendants, Ms. Stacey Hamilton, Open Records Officer and Borough of Carlisle's Motion to Dismiss Plaintiff's Complaint in Mandamus, filed in the above action on or about March 19, 2014, is incorporated by reference ( "Original Defendants' Motion to Dismiss Complaint in Mandamus ") 2. Additional Defendant YIS /Cowden Group, Inc. hereby joins into Original Defendants' request to dismiss Complaint in Mandamus. 3. Additional Defendant YIS /Cowden Group, Inc. has complied with all relevant Court Orders and provisions of the Right -to -Know Law. 4. Plaintiff appears to be seeking discovery beyond the scope of the document production required by the Right -to -Know Law. WHEREFORE, Additional Defendant, YIS /Cowden Group, Inc., moves this Court to Dismiss Plaintiff's Complaint in Mandamus. Respectfully submitted, Daniel K. /Mathers, Esquire Mathers & Stapp, P.C. Attorney for Additional Defendant ID #29950 416 Pine Street, Suite 308 Williamsport, PA 17701 dmathers @MathersStapp.com (570) 326 -5171 VERIFICATION I, James Cowden, hereby state and aver that I have read the foregoing Joinder to Motion of Original Defendants' Motion to Dismiss Plaintiff's Complaint in Mandamus, which has been drafted by my counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief although the language is that of my counsel and to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. EARLE DRACK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW MS. STACY HAMILTON OPEN : NO. 13.-6536 RECORDS OFFICER AND BOROUGH : OF CARLISLE, : COMPLAINT IN MANDAMUS Defendants v. YIS/COWDEN GROUP, INC. CERTIFICATE OF SERVICE I, Daniel K. Mathers, Esquire, Attorney for YIS/Cowden Group, Inc,, do hereby certify that a true and correct copy of the Joinder to Motion of Original Defendants' Motion to Dismiss Plaintiff s Complaint in andamus was served upon Defendants in the above captioned matter on the 098 day of 161/1, , 2014, by U.S. First Class Mail upon the following: Tricia M. Ambrose The MacMain Law Group, LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 Earle Drack 111 Bertolet School Road Spring City, PA 19475 Date: S kni/Li y submitted, K. Mathers, Esquire Mathers & Stapp, P.C. Attorney for YIS/Cowden Group, Inc. ID #29950 416 Pine Street, Suite 308 Williamsport, PA 17701 dmathers@MathersStapp.com (570) 326-5171 EARLE DRACK, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE, DEFENDANTS V. YIS /COWDEN GROUP, INC. : 13 -5436 CIVIL TERM ORDER OF COURT AND NOW, this „2 d y of May, 2014, upon consideration of Defendants' Motions to Dismiss and Plaintiff's Response thereto, argument thereon is scheduled for the 30th day of June, 2014, at 11:00 a.m., in Courtroom Number 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Defendants shall submit briefs to the court ten (10) days prior to argument. Plaintiff's brief shall be due five (5) days prior to argument. By the Court, Earl Drack 111 Bertolet School Road Spring City, PA 19475 Aniel Mathers, Esquire 416 Pine Street Suite 308 Williamsport, PA 17701 Ibert H. Masland, J. N) CO 1 ./tilan H. Leinhauser, Esquire 101 Lindenwood Drive, Suite 160 Malvern, PA 19355 For Defendants :sal e_c) I.E. S 5p9ity rr EARLE DRACK, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE, DEFENDANTS V. YIS/COWDEN GROUP, INC. : 13-5436 CIVIL TERM /7#' ORDER OF COURT AND NOW, this `l day of June, 2014, upon agreement of the parties, the argument scheduled for June 30, 2014, is cancelled and rescheduled to Monday, August 25, 2014, at 11:00 a.m., in Courtroom Number 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Defendants shall submit briefs to the court ten (10) days prior to argument. Plaintiffs brief shall be due five (5) days prior to argument. By the Court, Albert H. Masland, J. Xarile Drack 111 Bertolet School Road Spring City, PA 19475 �niel Mathers, Esquire 416 Pine Street Suite 308 Williamsport, PA 17701 rian H. Leinhauser, Esquire 101 Lindenwood Drive, Suite 160 Malvern, PA 19355 For Defendants :sal /12L1 y -11) EARLE DRACK, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE, DEFENDANTS V. YIS/COWDEN GROUP, INC., ADDITIONAL DEFENDANT : 13-5436 CIVIL TERM ORDER OF COURT AND NOW, this day of November, 2014, upon consideration of the Motions to Dismiss filed by Defendants Ms. Stacy Hamilton, Open Records Officer and Borough of Carlisle and additional Defendant YIS/Cowden Group, Inc., briefing and argument by the parties, and the submission of affidavits, the Motions to Dismiss are GRANTED, the Complaint in Mandamus, filed by Plaintiff, Earle Drack, is DISMISSED as moot, and Plaintiff's request for Counsel Fees is DENIED. By the Court, Albert H. Masland, J. Drack, Pro se 111 Bertolet School Road Spring City, PA 19475 ian H. Leinhauser, Esquire 101 Lindenwood Drive, Suite 160 Malvern, PA 19355 For Defendants Mathers, Esquire 416 Pine Street Suite 308 Williamsport, PA 17701 For Additional Defendant LL EARLE DRACK, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE, DEFENDANTS V. YIS/COWDEN GROUP, INC., ADDITIONAL DEFENDANT : 13-5436 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO DISMISS OPINION AND ORDER OF COURT Masland, J., November 13, 2014: -- Before the court are the Motions to Dismiss filed by Defendants Ms. Stacy Hamilton, Open Records Officer and Borough of Carlisle and additional Defendant YIS/Cowden Group, Inc. regarding the Complaint in Mandamus filed by Plaintiff, Earle Drack. Following briefing, argument by the parties, and the submission of affidavits, the Motion to Dismiss will be granted, the Complaint in Mandamus will be dismissed, and Plaintiffs request for Counsel Fees will be denied in accordance with this opinion and order. Plaintiff initiated this matter with a Right to Know Law (RTKL) request submitted to the Borough of Carlisle seeking documents regarding the procedures used to calibrate the Borough's wireless ENRADD EJU-91, a vehicle speed timing device. Initially, the Borough responded to the request but did not include the calibration documents as it did not possess them at that time. Plaintiff appealed that decision to 13-5436 CIVIL TERM the Office of Open Records prompting the Office to determine that Plaintiff was entitled to the calibration documents and then contacting YIS/Cowden, the manufacturer of the ENRADD system, to obtain them. YIS/Cowden was at first reluctant to provide the documents, but after being joined as an additional defendant by the Office of Open Records and served with a Request for Production of Documents, it provided an affidavit from its Principal regarding calibration methods and training notes as requested by Plaintiff. The affidavit stated, in relevant part: 3. Pursuant to my understanding of the Opinion of the Commonwealth Court, Docket Number 2123 C.D. 2012, filed July 16, 2013, on October 24, 2013, I tendered to the Borough of Carlisle through their attorney, Brian Leinhauser, as Exhibit "C" attached to New Matter filed under the above captioned heading, all training notes used by YIS/Cowden Group, Inc. which is a single page document entitled "ENRADD Test v1.0", a copy which is likewise attached to this Affidavit as Exhibit "A". These are the sole training notes as referenced in the Court's Opinion. 4. That, as I have stated in the subject litigation and in similar pieces of litigation filed by Mr. Drack in other tribunals of this Commonwealth, the calibration procedures used as to this ENRADD EJU-91 wireless device are set forth in Title 67 of Pa. Code Section 105.51, which regulations are a matter of public record. Cowden Affidavit at ¶¶3-4. Despite the production of documents, Plaintiff contends that his RTKL request remains unanswered and for that reason has filed a Complaint in Mandamus demanding that his RTKL request be answered. With regard to mandamus, our Supreme Court has explained that: The writ of mandamus exists to compel official performance of a ministerial act or mandatory duty. Mandamus cannot issue to compel performance of a discretionary act or to govern the manner of performing [the] required act. This -2- 13-5436 CML TERM Court may issue a writ of mandamus where the petitioners have a clear legal right, the responding public official has a corresponding duty, and no other adequate and appropriate remedy at law exists. Moreover, mandamus is proper to compel the performance of official duties whose scope is defined as a result of the mandamus action litigation. Thus, we have held that mandamus will lie to compel action by an official where his refusal to act in the requested way stems from his erroneous interpretation of the law. Fagan v. Smith, 41 A.3d 816, 818 (Pa. 2012) (internal citations and quotations omitted). Here, Plaintiff takes exception to the reference in the Cowden Affidavit to the calibration procedures as they are outlined in the Pennsylvania Code. He characterizes the response as non-responsive to his request and seeks a court order to compel compliance with the requirements of the RTKL. The court disagrees. The calibration procedures are written into the Pennsylvania Code and are a matter of public record. By identifying the relevant portion of the Pennsylvania Code where the procedures are detailed, the Defendants have fully discharged their duties under the RTKL. Plaintiff continued insistence that the Defendants' response is non- responsive is simply erroneous. The relevant Code section reads: (e) Enradd, Model EJU-91-- Manufactured by Y.I.S., Incorporated, 1049 Hartley Street, P. 0. Box 3044, York, Pennsylvania 17404. (1) Required equipment. The following equipment or an equivalent substitute is required for calibration: (i) Two pulse generators. (ii) Dual channel oscilloscope or frequency counter with interval capability. (iii) Power supply, + 5 volts. -3- 13-5436 CIVIL TERM (2) Calibration procedure. (See Appendix A, Figure 8 for interconnection diagram). Calibration procedures shall be as follows: (i) A single circuit to generate the signals that simulate the front wheels of a vehicle crossing the road sensor shall be set up as set forth in Appendix A, Figure 7. (ii) The elapsed time between the pulse on Outputs 1 and 2 is measured by the Enradd using the formula V x T = 3408. 3408 is the proper constant for a 5 -foot timing strip spacing. V = velocity in mph T = time in ms (iii) The elapsed interval time is computed by: (A) Calculation of the equation: V = 3408 T (B) Comparison of the readout on the oscilloscope/frequency counter to the readout on the Enradd. 67 Pa. Code § 105.56 (e) (the aforementioned Appendix A is a graphic technical schematic). The only other document related to the calibration and testing of the ENRADD system was provided to the Plaintiff by YIS/Cowden. There are no more relevant documents. Plaintiff is pressing a request for paper that does not exist. As such, his Complaint in Mandamus is moot and the Motions to Dismiss will be granted. Finally, Plaintiff seeks counsel fees from the Defendants for their alleged bad faith refusals to comply with the RTKL. A court may award reasonable attorney fees and costs to a requestor if it reverses the agency determination and finds either: (1), willful or wanton disregard and/or bad faith in the agency's denial; or, (2) the agency's 13-5436 CIVIL TERM defenses were not based on a reasonable interpretation of the law. 65 P.S. §67.1304(a). Here, the court agrees with the Office of Open Records' determination and finds that both the Office and the additional Defendant have acted in good faith as they tried to comply with the RTKL and Plaintiff's various requests. As such, the Plaintiff's request for fees and penalties will be denied. In short, Plaintiff has a problem with the ENRADD system, which he believes can be solved by the RTKL. His mistaken quixotic persistence does not expand the law's parameters. Rather, it proves the veracity of H.L. Mencken's observation - "There is always an easy solution to every human problem — neat, plausible, and wrong." In sum, the court finds Plaintiff's Complaint in Mandamus to be moot because all defendants have complied with his requests to the extent required by the RTKL. Therefore, we grant the Motions to Dismiss and deny Plaintiff's request for fees and penalties. AND NOW, this / ORDER OF COURT day of November, 2014, upon consideration of the Motions to Dismiss filed by Defendants Ms. Stacy Hamilton, Open Records Officer and Borough of Carlisle and additional Defendant YIS/Cowden Group, Inc., briefing and argument by the parties, and the submission of affidavits, the Motions to Dismiss are GRANTED, the Complaint in Mandamus, filed by Plaintiff, Earle Drack, is DISMISSED as moot, and Plaintiff's request for Counsel Fees is DENIED. -5- B Albert . Masland, 13-5436 CIVIL TERM Earle Drack, Pro se 111 Bertolet School Road Spring City, PA 19475 Brian H. Leinhauser, Esquire 101 Lindenwood Drive, Suite 160 Malvern, PA 19355 For Defendants Daniel Mathers, Esquire 416 Pine Street Suite 308 Williamsport, PA 17701 For Additional Defendant -6- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack, Complainant vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle VS.. YIS/Cowden Group * * Civil Action No. 13-5436, * NOTICE OF APPEAL a ' r —r Notice is given that Earle Drack, Complainant above named, appeals to the Commonwealth Court of Pennsylvania from an order entered on Nov. 13, 2014 and reflected in the docket entries attached. Nov. 17 2014 Signature Earle D. Drack 111 Bertolet School Rd, Spring City, PA 19475, 610-506-5701 COURT REPORTER - RE.QUEST. FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, Ms. Schaeffer, the official court reporter, is hereby requested to produce, certify and file the OUTSTANDING transcript for the argument held on Aug. 25, 2014 in this matter in conformity with Pa.R.A.P. No. 1922. Pursuant to Pa.R.A.P. No. 1911(a) and Pa.R.J.A. No. 5000.6 and 7, the reporter is requested to notify the Appellant of the required deposit for transcription; If no transcription was taken the reporter is requested to notify the Appellant, Court and Clerk forthwith so the appeal may be immediately processed. Signature FILE IN DUPLICATE 4- S-2,0 pot fle- 013t37-?-1 'ib.oe b1 (p,,vtOK,, (i,-�' Home Browse Search Metadate I Thumbnails I Annotations 13-5436 Last Modified 11/142014 10:47:19 AM Creation Date 911812013 2:24:05 PM Fields Template: Civil Docket# 13-5436 Plaintiff DRACKiEARLE Defendant HAMILTON STACY MS OPEN RECORDS OFFICER Civil - Term Civil Civil - Case Type MISCELLANEOUS - MANDAMUS Date 9/162013 Defendant2 BOROUGH OF CARLISLE Deoumentmaaagemea:poratpox 3aoy.awraie Ld+b1.tRf2 101555 2012 La pre-ne Prothonotary - Civil Records > Civil Dockets > 2013 Dockets > 13- 5401 thru 13- 5500 > 13.5436 o 179]ii s Go EARLE ()RACK, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY. PENNSYLVANIA V. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE, DEFENDANTS V. YIS/COWDEN GROUP. INC., • ADDITIONAL 'DEFENDANT : 13-5436 CIVIL TERM ORDER OF COURT AND NOW, this / day of November, 2014, upon consideration of the Motions to Dismiss filed by Defendants Ms. Stacy Hamilton, Open Records Officer end Borough of Cartisle and additional Defendant YIS/Cowden Group, Inc.. briefing and argument by the parties, and the submission of affidavits, the Motions to 'Dismiss are GRANTED, the Complaint in Mandamus. filed by Plaintiff, Earle Drack. is' DISMISSED as moot, and Plaintiffs request for Counsel Fees is DENIED. By the Court, Albert H. Masland, J. Eatle Drack. Pro se 111 Bertolet School Road Spring City. PA 19475 PYS511 Cumberland County Prothonotary's Office Civil Case Print 2013-05436 DRACK EARLE (vs) HAMILTON STACY ET AL Reference No..: Case Type • MISCELLANEOUS - MANDAM Judgment .00 Judge Assigned: MASLAND ALBERT H Disposed Desc.: DISMISSED Case Comments Filed Time Execution Date Jury Trial Disposed Date Higher Crt 1.: Higher Crt 2.: Page 1 9/16/2013 3:09 0/00/0000 11/13/2014 ******************************************************************************** General Index Attorney Info DRACK EARLE PLAINTIFF FREY JOHN W 111 BERTOLET SCHOOL RD SPRING CITY PA HAMILTON STACY MS OPEN RECORDS OFFICER 53 WEST SOUTH STREET CARLISLE PA 17013 BOROUGH OF CARLISLE 53 WEST SOUTH STREET CARLISLE PA 17013 DEFENDANT DEFENDANT LEINHAUSER BRIAN LEINHAUSER BRIAN ******************************************************************************** * Date Entries ******************************************************************************** 9/16/2013 9/27/2013 9/27/2013 10/15/2013 10/15/2013 10/28/2013 10/28/2013 11/04/2013 11/06/2013 11/14/2013 11/14/2013 11/14/2013 11/21/2013 3/19/2014 FIRST ENTRY COMPLAINT - CIVIL ACTION - MANDAMUS - BY PLFF/PRO SE ACCEPTANCE OF SERVICE - COMPLAINT IN MANDAMUS - BY BRIAN LEINHAUSER ATTY FOR DEFTS PRAECIPE TO ENTER APPEARANCE - BY BRIAN LEINHAUSER ATTY FOR DEFTS DEFENDANTS, MS STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE'S THIRD PARTY JOINDER COMPLAINT - BY BRIAN LEINHAUSER ATTY FOR DEFTS DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT IN MANDAMUS - BY BRIAN LEINHAUSER ATTY FOR DEFTS ADDITIONAL DEFT YIS/COWDEN GROUP INC ANSWER AND NEW MATTER TO THIRD PARTY JOINDER COMPLAINT OF STAACY HAMILTON OPEN RECORDS OFFICER AND BOUROUGH OF CARLISLE - BY DANIEL K MATHERS ATTY FOR ADDNL DEFT/YIS/COWDEN GROUP INC CERTIFICATE OF SERVICE - SERVED ADDNL DEFT YIS/COWDEN GROUP INC ANSWER AND NEW MATTER TO THIRD PARTY JOINDER COMPLAINT OF STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE UPON PLFF & DEFTS - BY DANIEL K MATHERS ATTY FOR ADDNL DEFT YIS/COWDEN GROUP SHERIFF'S RETURN - DATED 10/31/13 - COMPLAINT UPON DEFENDANT IS RETURNED NOT SERVED PER REQUEST FROM ATTY TRICIA AMBROSE SHERIFF COST - $24.96 COMPLAINT IN MANDAMUS - BY PLFF DEFTS/THIRD-PARTY PLFFS' MS STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE RESPONSE TO THIRD PARTY DEFT YIS/COWDEN GROUP INC'S NEW MATTER - BY BRIAN LEINHAUSER ATTY FOR DEFTS/BOROUGH OF CARLSILE & MS HAMILTON RESPONSE TO DEFT NEW MATTER - BY PLFF/PRO SE SUPPLEMENTAL RESPONSE TO THIRD PARTY DEFT NEW MATTERS - BY PLFF/PRO SE CERTIFICATION OF COMPLIANCE WITH DISCOVERY REQUEST - DANIEL MATHERS ATTY FOR YIS/COWDEN GROUP INC DEFENDANT'S MS STACEY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT IN MANDAMUS - PYS511 Cumberland County Prothonotary's Civil Case Print 2013-05436 DRACK EARLE (vs) HAMILTON STACY ET AL Reference No..: Case Type • MISCELLANEOUS - MANDAM Judgment .00 Judge Assigned: MASLAND ALBERT H Disposed Desc.: DISMISSED Case Comments 3/25/2014 3/26/2014 3/31/2014 5/29/2014 6/11/20.14 8/22/2014 11/13/2014 BY BRIAN H LEINHAUSER ATTY FOR DEFTS Office Filed Time Execution Date Jury Trial Disposed Date Higzer Crt 1.: Higher Crt 2.: Page 9/16/2013 3:09 0/00/0000 11/13/2014 ORDER OF COURT - 3/25/14 - IN RE: MOTION TO DISMISS PLFF'S COMPLAINT IN MANDAMUS - RULE ISSUED ON PLFF TO SHOW CAUSE - RULE RETURNABLE 20 DAYS AFTER SERVICE - BY THE COURT ALBERT H MASLAND J COPIES MAILED 3/25/14 RESPONSE TO DEFT MOTION TO DISMISS - BY PLFF/PRO SE JOINDER TO MOTION OF ORIGINAL DEFTS TO DISMISS PLFF'S COMPLAINT IN MANDAMUS - BY DANIEL K MATHERS ATTY FOR YIS/COWDEN GROUP ORDER OF COURT - 5/28/14 - IN RE: DEFTS' MOTIONS TO DISMISS & PLFF'S RESPONSE - ARGUMENT SCHEDULED FOR 6/30/14 @ 11:00 AM IN CR 1 CUMB CO COURTHOUSE - BY THE COURT ALBERT H MASLAND J COPIES MAILED 5/29/14 ORDER OF COURT DATED 6-11-14 IN RE ARGUMENT IS RESCHEDULED FOR 8-25-14 AT 11 AM IN CR 1 - BY THE COURT ALBERT H MASLAND J- COPIES MAILED COMPLAINT IN MANDAMUS - BY PLFF/PRO SE OPINION AND ORDER OF COURT - DATED 11/13/14 - IN RE PLAINTIFF'S MOTION TO DISMISS - GRANTED - THE COMPLAINT IN MANDAMUS IS DISMISSED AS MOOT AND PLAINTIFF'S REQUEST FOR COUNSEL FEES IS DENIED - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 11/13/14 LAST ENTRY **************.********************.********************************************** * Escrow Information * * Fees & Debits Beg Bal Pmts/Adj End Bal * ******************************** ******** ****** ******************************* COMPLAINT TAX ON CMPLT SETTLEMENT AUTOMATION JCP FEE OVERPYMNT/RFND 65.25 .50 9.50 5.00 23.50 .25 65.25 .50 9.50 5.00 23.50 .25 .00 .00 .00 .00 .00 .00 104.00 104.00 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof, I hereunto set my hand and the seal of said Cou at Carlisle, Pa. This __ day of kit CT 0 / y "zL # , othonotary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle vs. YIS/Cowden Group Civil Action No. 13-5436 PROOF OF SERVICE I, Earle Drack, pro se appellant, do hereby certify that I have served copies of the forgoing Notice of Appeal upon the Borough of Carlisle, YIS-Cowden, the Trial Court Judge, and the Office of Open Records via first class US Mail: Brian Leinhauser, Esquire (attorney for Carlisle Borough) The MacMain Law Group, LLC 101 Lindenwood Drive, Suite 160 Malvern, PA 19355 Daniel K. Mathers, Esquire (Attorney for YIS/Cowden) 416 Pine Street, Suite 308 Williamsport, PA 17701 Hon. Albert Masland (Trial Judge) Cumberland County Courthouse One Courthouse Square. Room 404 Carlisle , PA 17013 Ms. Dena Lefkowitz, Office of Open Records 400 North Street, 4th Floor, Harrisburg, PA 17120-0225 Ms. Schaeffer, Court Reporter Cumberland County Courthouse One Courthouse Sq. Carlisle, PA 17013 tATEMigg- POS731. SERVICE. 1000 U.S. POSTAGE PAID EXTON.PA 19941 NOV 20, 14 AMOUNT $1.30 00112886-11 UNITED STATES Certificate Of POSTAL SERVICEMailing To metteryfee, affix stapostage he e. or This Certificate of Mailing provides evidence that mail has been presented to USPS® for mailing. This form may be used for domestic and international mail. From: Earle D. Drack 111 Bertolet School RD Spring City, PA 19475 To: Judge Albert Masland Cumberland County Courthouse One Courthouse Sq., Room 404 Carlisle, PA 17013 PS Form 3817, April 2007 PSN 7530-02-000-9065 Postmark Here EARLE DRACK, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. MS. STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE, DEFENDANTS V. YIS/COWDEN GROUP, INC., ADDITIONAL DEFENDANT : 13-5436 CIVIL TERM ORDER OF COURT AND NOW, this /4y of December, 2014, the Plaintiff shall file and serve a copy in the chambers of this judge a concise statement of errors complained of on appeal within twenty-one (21) days of this date. By the Court, Albert H. Masland, J. /Earle Drack, Pro se 111 Bertolet School Road Spring City, PA 19475 ..3rian H. Leinhauser, Esquire 101 Lindenwood Drive, Suite 160 Malvern, PA 19355 For Defendants .,/6aniel Mathers, Esquire 416 Pine Street Suite 308 Williamsport, PA 17701 For Additional Defendant sal ff co P ri C-7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack Vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle Vs. YIS/Cowden Group Civil Action No. 13-5436 ••••••• Concise Statement of Matters Complained of on Appeal Filed by and on behalf of: Earle Drack, pro se litigant 111 Bertolet School RD Spring City, PA 19475 610-506-5701 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack Vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle . Vs. YIS/Cowden Group Civil Action No. 13-5436 Concise Statement of Matters Complained of on Appeal AND NOW COMES the defendant, Earle Drack, and pursuant to the Dec. 1, 2014 order of the court and Pa. R.A.P. 1925(b), files the within "Concise Statement of Matters Complained of on Appeal" as follows: Nature of the Case This case originated in an Open Records Request and subsequent Final Determination of the PA Office of Open Records (OOR) under 65 P.S. §67.101 et. seq. known as the "Right -to - Know -Law" (RTKL). Earle Drack ("Drack" or "Requester") submitted an RTKL request to Carlisle Borough (the "Borough") seeking various records related to the Borough's ENRADD EJU-91 device. The request was partially denied by the Borough and Drack appealed to the Office of Open records (the "OOR"). The Borough notified its vendor for ENRADD calibration services, Third Part Defendant YIS/Cowden ("YIS/Cowden"), of the appeal and of YIS/Cowden's right to participate. The OOR found for Drack and directed the Borough to, within 30 days, provide the record in question, which was: "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU-91 in the past 60 days." Neither the Borough nor YIS/Cowden appealed the Final Determination of the OOR. After 30 days had elapsed, the Borough continued to refuse to comply with the OOR directive, prompting the instant Complaint in Mandamus. On Nov. 13th the Judge in the case (the "Lower Court") issued an order dismissing the Complaint in Mandamus (the "Order"), and Drack appealed the Order to the Commonwealth Court. Errors and Rulings Complained of on Appeal As a preliminary matter, it should be noted that all aspects of the basis of the Lower Court's decision in this civil case cannot be readily discerned from inspection of the written decision and order, and thus this Concise Statement may identify some or all errors and/or rulings in only general terms. Thus, per Pa. R.A.P. 1925(b)(4)(vi), the generality of this Statement should not be grounds for finding waiver of any issues. 1) The Lower Court erred in misstating or failing to acknowledge key facts in this case in such a way as to distort the true nature of the case and the behavior of the Borough and YIS/Cowden. Such errors and omissions include: a. The OOR did not contact YIS/Cowden after rendering its determination in the appeal, as claimed in the written decision (the "Opinion") accompanying the Order; rather, YIS/Cowden was notified by the Borough of the appeal to the OOR (and the opportunity to participate in that appeal) within 7 days of the filing of the appeal to the OOR. b. The OOR did not join YIS/Cowden as an additional defendant after its Determination and before the instant Complaint in Mandamus, as stated in the Opinion. It was actually the Borough that joined YIS/Cowden, and it did so only after the instant Complaint in Mandamus was filed. c. The Opinion does not acknowledge the Borough's refusal to compel YIS/Cowden to provide the responsive records after the OOR directed the Borough to provide records responsive to Request item 4 within 30 days. d. The Opinion does not acknowledge the fact that YIS/Cowden provided conflicting sworn statements with respect to the methods used to calibrate the ENRADD EJU-91. e. The Opinion does not acknowledge the inconsistency of YIS/Cowden characterizing, at various times, records responsive to "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU-91 in the past 60 days." as being proprietary, publically available, and non-existent. f. The Opinion attributes the exact wording of 67 PA Code 105.56(e) as representing Cowden's sworn position as to a responsive record to the request for "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU-91 in the past 60 days." when Cowden has in fact not specified the exact wording of 67 PA Code 105.56(e) as responsive to that request. In fact, Cowden has even provided a sworn affirmation that the exact procedure outlined n 105.56(e) is not used to calibrate the Borough's ENRADD EJU-91 by virtue of the use of a portion of 105.56(d) which is not found in 105.56(e). g. The Opinion does not acknowledge the thoroughly briefed issue of insufficient specificity with respect to YIS/Cowden's identification of 67 PA Code 105.56 as responsive to the request for "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU-91 in the past 60 days." since 105.56 comprises five different procedures for five different devices. 2) The Lower Court erred in considering irrelevant portions of the affidavits filed in this case. This includes references to "Training Notes" not requested in the instant case and not identified as being responsive to the instant request. It also includes references to the perceived motives for Drack's request. 3) The Lower Court erred when claiming that Drack's characterization of Cowden's affirmations as non-responsive is erroneous. 4) The Lower Court erred in considering what it describes as a document "related to the calibration and testing of the ENRADD System" since the request in this case was not for records "related to" the ENRADD calibration but specifically for "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU-91 in the past 60 days." 5) The Lower Court erred in stating that Drack is pressing for paper that does not exist. 6) The Lower Court erred in finding the Complaint in Mandamus moot. 7) The Lower Court erred in stating confusingly that it "agrees with the Office of Open Records' determination and finds that both the Office (sic — the Borough?) and the additional Defendant have acted in good faith as they tried to comply with the RTKL and Plaintiffs various requests". a. In fact, the Office of Open Records found for Drack and directed the Borough to provide the requested record within 30 days. It did not make any determination as to good faith. b. Both the Borough and the additional defendant acted in bad faith in this case as demonstrated by the evidence. 8) The Lower Court erred in failing to award Drack the requested penalties and costs based on the conduct of the Borough and of YIS/Cowden. 9) The Lower Court erred in failing to address or acknowledge Drack's briefed arguments. Date: Dec. 8, 2014 Respectfully Submitted, Earle D. Drack, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack Vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle Vs. YIS/Cowden Group Civil Action No. 13-5436 * PROOF OF SERVICE I, Earle Drack, pro se appellant, do hereby certify that I have served copies of the forgoing Concise Statement of Errors upon the Borough of Carlisle, YIS-Cowden, the Trial Court Judge, and the Office of Open Records via first class US Mail: Brian Leinhauser, Esquire (attorney for Carlisle Borough) The MacMain Law Group, LLC 101 Lindenwood Drive, Suite 160 Malvern, PA 19355 Daniel K. Mathers, Esquire (Attorney for YIS/Cowden) 416 Pine Street, Suite 308 Williamsport, PA 17701 Judge Albert Masland (Trial Judge) Cumberland County Courthouse One Courthouse Square. Room 404 Carlisle , PA 17013 Earle D. Drack, Defendant Date i‘a/, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Earle Drack Vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle Vs. YIS/Cowden Group Civil Action No. 13-5436 Concise Statement of Matters Complained of op Appeal .Filed by and on behalf of: 'Earle Drack, pro se litigant 111 Bertolet School RD Spring City, PA 19475 610-506-5701 opportunity to participate in that appeal) within 7 days of the filing of the appeal to the OOR. b. The OOR did not join YIS/Cowden as an additional defendant after its Determination and before the instant Complaint in Mandamus, as stated in the Opinion. It was actually the Borough that joined YIS/Cowden, and it did so only after the instant Complaint in Mandamus was filed. c. The Opinion does not acknowledge the Borough's refusal to compel YIS/Cowden to provide the responsive records after the OOR directed the Borough to provide records responsive to Request item 4 within 30 days. d. The Opinion does not acknowledge the fact that YIS/Cowden provided conflicting sworn statements with respect to the methods used to calibrate the ENRADD EJU-91. e. The Opinion does not acknowledge the inconsistency of YIS/Cowden characterizing, at various times, records responsive to "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU-91 in the past 60 days." as being proprietary, publically available, and non-existent. f. The Opinion attributes the exact wording of 67 PA Code 105.56(e) as representing Cowden's sworn position as to a responsive record to the request for "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU-91 in the past 60 days." when Cowden has in fact not specified the exact wording of 67 PA Code 105.56(e) as responsive to that request. In fact, Cowden has even provided a sworn affirmation that the exact procedure outlined n 105.56(e) is not used to calibrate the Borough's ENRADD EJU-91 by virtue of the use of a portion of 105.56(d) which is not found in 105.56(e). g. The Opinion does not acknowledge the thoroughly briefed issue of insufficient specificity with respect to YIS/Cowden's identification of 67 PA Code 105.56 as responsive to the request for "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU-91 in the past 60 days." since 105.56 comprises five different procedures for five different devices. 2) The Lower Court erred in considering irrelevant portions of the affidavits filed in this case. This includes references to "Training Notes" not requested in the instant case and not identified as being responsive to the instant request. It also includes references to the perceived motives for Drack's request. 3) The Lower Court erred when claiming that Drack's characterization of Cowden's affirmations as non-responsive is erroneous. 4) The Lower Court erred in considering what it describes as a document "related to the calibration and testing of the ENRADD System" since the request in this case was not for records "related to" the ENRADD calibration but specifically for "4. A copy of the exact procedures actually used to calibrate the Borough's wireless ENRADD EJU-91 in the past 60 days." 5) The Lower Court erred in stating that Drack is pressing for paper that does not exist. 6) The Lower Court erred in finding the Complaint in Mandamus moot. 7) The Lower Court erred in stating confusingly that it "agrees with the Office of Open Records' determination and finds that both the Office (sic — the Borough?) and the additional Defendant have acted in good faith as they tried to comply with the RTKL and Plaintiffs various requests". a. In fact, the Office of Open Records found for Drack and directed the Borough to provide the requested record within 30 days. It did not make any determination as to good faith. b. Both the Borough and the additional defendant acted in bad faith in this case as demonstrated by the evidence. 8) The Lower Court erred in failing to award Drack the requested penalties and costs based on the conduct of the Borough and of YIS/Cowden. 9) The Lower Court erred in failing to address or acknowledge Drack's briefed arguments. Date: Dec. 8, 2014 Respectfully Submitted, Earle D. Drack, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL Earle Drack Vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle Vs. YIS/Cowden Group Civil Action No. 13-5436 PROOF OF SERVICE I, Earle Drack, pro se appellant, do hereby certify that I have served copies of the forgoing Concise Statement of Errors upon the Borough of Carlisle, YIS-Cowden, the Trial Court Judge, and the Office of Open Records via first class US Mail: Brian Leinhauser, Esquire (attorney for Carlisle Borough) The MacMain Law Group, LLC 101 Lindenwood Drive, Suite 160 Malvern, PA 19355 Daniel K. Mathers, Esquire (Attorney for YIS/Cowden) 416 Pine Street, Suite 308 Williamsport, PA 17701 Judge Albert Masland (Trial Judge) Cumberland County Courthouse One Courthouse Square. Room 404 Carlisle , PA 17013 Earle D. Drack, Defendant Date CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Earl Drack Vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle 2013-5436 Civil Term 2128 CD 2014 The documents comprising the record have been numbered from No. 1 to 188, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 12/15/2014. David D. 'Buell, rothonotary Alma Kostjerev c, Deputy An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania. County of Cumberland ss: David D. Buell , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Earl Drack Plaintiff. and Ms. Stacy Hamilton Open Records Officer Borough of Carlisle Defendant, as the same remains of record before the said Court at No. 2013-5436 of Civil Term. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 15th day of December A. D., 2014 Prothonotary I, Kevin A. Hess President Judge of the Ninth Judicial District. composed of the County of Cumberland, do certify that David D. Buell , by whom the annexed record, certificate and attestation were made and given. and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and the the said record. certificate and attestation are in due form of law and made by theoper officer. Commonwealth of Pennsylvania County of Cumberland ss: President Judet 1. David D. Buell , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A. Hess by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given. as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF. I have hereunto set my hand and affixed the seal of said Court this • 15th day of December.A.D.n 2014 Prothonotary No Term 19 No.2013-5436 Civil Term 2128 CD 2014 Earl Drack Versus Ms. Stacy Hamilton Open Records Officer Borough of Carlisle EXEMPLIFIED RECORD From Cumberland County Debt, . $ Int from Costs Entered and Filed Prothonotary. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the Cumberland county c'' in the Commonwealth of Pennsylvania 2013-5436 Civil Term to No. 2128 CD 2014 Term. 19 is contained the following: COPY OF Appearance DOCKET ENTRY Earl Drack vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle **SEE CERTIFIED COPY OF DOCKET ENTERIES** PYS511 Cumberland County Prothonotary's Civil Case Print 2013-05436 DRACK EARLE (vs) HAMILTON STACY ET AL Reference No..: Case Type • MISCELLANEOUS - MANDAM Judgmen .00 Judge Assigned: MASLAND ALBERT H Disposed Desc.: DISMISSED Case Comments - ---- --- -- Office Page Filed 9/16/2013 Time.........: 3:09 Execution Date 0/00/0000 Jury Trial Disposed Date11/13/2014 Higher Crt 1.: 2128 CD 2014 Higher Crt 2.: ******************************************************************************** General Index Attorney Info DRACK EARLE 111 BERTOLET SCHOOL RD SPRING CITY PA HAMILTON STACY MS OPEN RECORDS OFFICER 53 WEST SOUTH STREET CARLISLE PA 17013 BOROUGH OF CARLISLE 53 WEST SOUTH STREET CARLISLE PA 17013 PLAINTIFF DEFENDANT DEFENDANT LEINHAUSER BRIAN LEINHAUSER BRIAN ******************************************************************************** * Date Entries ******************************************************************************** 1-24 9/16/2013 25-2.6 9/27/2013 9/27/2013 .2/- 3 310/15/2013 pi_ 40 10/15/2013 41_ s2,10/28/2013 8310/28/2013 1911/04/2013 SS -4111/06/2013 70- q311/14/2013 qq—%11/14/2013 q7-102,11/14/2013 1o3-10111/21/2013 IO6 , s38 3/19/2014 FIRST ENTRY COMPLAINT - CIVIL ACTION - MANDAMUS - BY PLFF/PRO SE ACCEPTANCE OF SERVICE - COMPLAINT IN MANDAMUS - BY BRIAN LEINHAUSER ATTY FOR DEFTS PRAECIPE TO ENTER APPEARANCE - BY BRIAN LEINHAUSER ATTY FOR DEFTS DEFENDANTS MS STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE'S THIRD PARTY JOINDER COMPLAINT - BY BRIAN LEINHAUSER ATTY FOR DEFTS DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT IN MANDAMUS - BY BRIAN LEINHAUSER ATTY FOR DEFTS ADDITIONAL DEFT YIS/COWDEN GROUP INC ANSWER AND NEW MATTER TO THIRD PARTY JOINDER COMPLAINT OF STAACY HAMILTON OPEN RECORDS OFFICER AND BOUROUGH OF CARLISLE - BY DANIEL K MATHERS ATTY FOR ADDNL DEFT/YIS/COWDEN GROUP INC CERTIFICATE OF SERVICE - SERVED ADDNL DEFT YIS/COWDEN GROUP INC ANSWER AND NEW MATTER TO THIRD PARTY JOINDER COMPLAINT OF STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE UPON PLFF & DEFTS - BY DANIEL K MATHERS ATTY FOR ADDNL DEFT YIS/COWDEN GROUP SHERIFF'S RETURN - DATED 10/31/13 - COMPLAINT UPON DEFENDANT IS RETURNED NOT SERVED PER REQUEST FROM ATTY TRICIA AMBROSE SHERIFF COST - $24.96 COMPLAINT IN MANDAMUS - BY PLFF DEFTS/THIRD-PARTY PLFFS' MS STACY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF CARLISLE RESPONSE TO THIRD PARTY DEFT YIS/COWDEN GROUP INC'S NEW MATTER - BY BRIAN LEINHAUSER ATTY FOR DEFTS/BOROUGH OF CARLSILE & MS HAMILTON RESPONSE TO DEFT NEW MATTER - BY PLFF/PRO SE SUPPLEMENTAL RESPONSE TO THIRD PARTY DEFT NEW MATTERS - BY PLFF/PRO SE CERTIFICATION OF COMPLIANCE WITH DISCOVERY REQUEST - DANIEL MATHERS ATTY FOR YIS/COWDEN GROUP INC DEFENDANT'S MS STACEY HAMILTON OPEN RECORDS OFFICER AND BOROUGH OF. CARLISLE'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT IN MANDAMUS - PYS511 Cumberland. County Prothonotary' Civil Case Print 2013-05436 DRACK EARLE (vs) HAMILTON STACY ET AL Reference No..: Case Type.....: MISCELLANEOUS - MANDAN Judgment .00 Judge Assigned: MASLAND ALBERT H Disposed Desc.: DISMISSED Case Comments BY BRIAN H LEINHAUSER ATTY FOR DEFTS /06'3/25/2014 ORDER OF COURT - 3/25/14 - IN RE: MOTION TO DISMISS PLFF'S COMPLAINT IN MANDAMUS - RULE ISSUED ON PLFF TO SHOW CAUSE - RULE RETURNABLE 20 DAYS AFTER SERVICE - BY THE COURT ALBERT H MASLAND J COPIES MAILED 3/25/14 s Office Filed Time Execution Date Jury Trial Disposed Date Higher Crt 1.: Higher Crt 2.: Page 2 9/16/2013 3:09 0/00/0000 11/13/2014 2128 CD 2014 /3T-573/26/2014 RESPONSE TO DEFT MOTION TO DISMISS - BY PLFF/PRO SE 158, 13/31/2014 JOINDER TO MOTION OF ORIGINAL DEETS TO DISMISS PLFFS COMPLAINT IN MANDAMUS - BY DANIEL K MATHERS ATTY FOR YIS/COWDEN GROUP 16 2 435/29/2014 10-16,56/11/2014 /66 17311/13/2014 /epi...171L/24/2014 igo 12/02/2014 lel—a712/11/2014 12/15/2014 ORDER OF COURT - 5 28 14 - IN RE: DEETS' MOTIONS TO DISMISS & PLFF'S RESPONSE - ARGtJMENT SCHEDULED FOR 6/30/14 @ 11:00 AM IN CR 1 CUMB CO COURTHOUSE - BY THE COURT ALBERT H MASLAND J COPIES MAILED 5/29/14 ORDER OF COURT DATED 6-11-14 IN RE ARGUMENT IS RESCHEDULED FOR 8-25-14 AT 11 AM IN CR 1 - BY THE COURT ALBERT H MASLAND J- COPIES MAILED OPINION AND ORDER OF COURT - DATED 11/13/14 - IN RE PLAINTIFF'S MOTION TO DISMISS - GRANTED - THE COMPLAINT IN MANDAMUS IS DISMISSED AS MOOT AND PLAINTIFF'S REQUEST FOR COUNSEL FEES IS DENIED - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 11/13/14 NOTICE OF APPEAL TO COMMONWEALTH COURT - BY EARLE D DRACK/PLFF ORDER OF COURT - 12/1/14 - PLFF SHALL FILE AND SERVE A COPY IN THE CHAMBERS OF THIS JUDGE A CONCISE STATEMENT OF ERRORS COMPLAINED OF ON APPEAL WITHIN 21 DAYS OF THIS DATE - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 12/2/14 CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL - BY PLFF/PRO SE NOTICE OF DOCKET ENTRIES MAILED TO EARLE DRACK PRO SE - DANIEL K MATHERS ESQ - BRIAN LEINHAUSER ESQ - -Jr - - - - - - - - - - LAST ENTRY 1q8- - ***********31,A 1c * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Escrow Information * * Fees & Debits Beq Bal Pymts/Adj End Bal * ******************************************************************************** COMPLAINT 65.25 TAX ON CMPLT .50 SETTLEMENT 9.50 AUTOMATION 5.00 JCP FEE 23.50 APPEAL HIGH CT 57.00 OVERPYMNT/RFND .25 OVERPYMNT/RFND 16.00 65.25 .50 9.50 5.00 23.50 57.00 .25 16.00 .00 .00 . 00 .00 .00 . 00 .00 .00 177.00 177.00 .00 ******************************************************************************** End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof, I here unto set my hand and the seal of said C.ourt at Carlisle, Pa. z This jday of C— , 20 / Frothonotary CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Earl Drack Vs. Ms. Stacy Hamilton Open Records Officer Borough of Carlisle 2013-5436 Civil Term 2128CD2014 The documents comprising the record have been numbered from No. 1 to 188, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 12/15/2014. David D. Buell, Prothonotary Alma Kostjerevac, Deputy An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Received in Superior Court Date DEC 16 2014 Signature & Title MIDDLE Cottunottiveattb Court of VEtttt5ptattia Kristen W. Brown Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue, Suite 2100 Michael Krimmel, Esq. P.O. Box 69185 Chief Clerk of Commonwealth Court Harrisburg, PA 17106-9185 www.pacourts.us C ) NOTICE OF DOCKETING APPEAL--- rri C70 cn RE: Drack, E v. Hamilton et al r �" c 2128CD2014 A Notice of Appeal from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. December 18, 2014 Filed Date: November 24, 2014 Trial Court Docket No: 13-5436 Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within sixty (60) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on the next page of this notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or their counsel -indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa.R.A.P. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on the next page of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name Brian H. Leinhauser, Esq. Brian H. Leinhauser, Esq. Daniel K. Mathers, Esq. Participant Name Participant Type Ms. Stacy Hamilton Appellee Borough of Carlisle Appellee YIS/Cowden Group Appellee Address all written communications and direct all filings to: Office of the Chief Clerk Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 (717) 255-1650 Filings may be made in person between 9:00 a.m. and 4:00 p.m. (except Saturdays, Sundays, and holidays observed by the Pennsylvania courts), by mail as provided by general rules, or as otherwise permitted by general rules of court. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Earle Drack, Appellant , 1-.43cr, V. cam-) -n; co - c;3 Ms. Stacy Hamilton' _ ---)=�', Open Records Officer_`' , ;�>. Borough of Carlisle z='`w --A v. YIS/Cowden Group ORDER No. 2128 C.D. 2014 /3 - el;,) -t '7 NOW, December 19, 2014, upon consideration of appellant's pro se "Application to be Excused from Preparation of Reproduced Record," and upon review of the original record transmitted by the Court of Common Pleas of Cumberland County, the Application is granted. It appears that appellant seeks review of an order of the court of common pleas that dismissed his complaint in mandamus. The mandamus action sought to compel compliance with an order of the Office of Open Records, orders which ordinarily do not involve the payment of money. Therefore, the cost of reproducing the original record, which consists primarily of pleadings in the mandamus action and exhibits attached thereto, is out of proportion to the amount involved. See Pa. R.A.P. 2151 ("[a]ny appellant may within 14 days after taking an appeal file an application to be excused from reproducing the record for the reason that the cost thereof is out of proportion to the amount involved, or for any other sufficient re. on." Certified from the Record DEC 2 22014 And Order Exit Keith B. Quigley, Se for Judge