Opinion
No. 2289 C.D. 2012
12-27-2013
C.E. Kurowski, Appellant v. Office of Open Records and City of Washington
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEADBETTER
C.E. Kurowski (Appellant) appeals from the order of the Court of Common Pleas of Washington County which granted the petition for reconsideration filed by the Office of Open Records (OOR). After review, we quash.
The trial court's order stated that it was treating the Petition to Vacate filed by OOR as a Petition for Reconsideration and that "the request for reconsideration is granted . . . regarding this Court's final order dated October 22, 2012." Trial Court's Order, November 21, 2012, Original Record (O.R.) Item 16.
Appellant, an attorney, owns certain property located at 83 N. Main Street in the City of Washington, a Third Class City (City). Beginning in May 2012, Appellant sent several requests to the City for information regarding this property after receiving notices for demolition from Ron McIntyre, Code Enforcement Officer for the City's Department of Code Enforcement. These notices advised Appellant that an exterior inspection of his property revealed possibly "serious structural deterioration of the building" and that "[f]urther inspection of the interior" was required in order for the Department to "determine the extent of repairs . . . necessary to bring the structure back into compliance with the . . . Code." Reproduced Record (R.R.) at 10a. Appellant specifically requested an explanation of when and how the exterior inspection of his property had taken place, as well as a list of the alleged structural defects of the building. When Appellant did not receive the information he requested, he filed an appeal with the OOR on June 22, 2012, under the Right-to-Know Law (RTKL). OOR determined that Appellant had failed to comply with Section 1101(a)(1) of the RTKL and dismissed his appeal.
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
This section provides that, "[i]f a written request for access to a record is denied or deemed denied, the requestor may file an appeal with [OOR] . . . The appeal shall state the grounds upon which the requestor asserts that the record is a public record, legislative record or financial record and shall address any grounds stated by the agency for delaying or denying the request." 65 P.S. § 67.1101(a)(1).
Thereafter, pursuant to Section 1302 of the RTKL, Appellant filed a petition for review with the trial court, naming both OOR and the City of Washington as parties. Appellant asserted that the information he sought was presumed to constitute public records and that the City, as a local agency, had the burden of proving that the records requested were not public records. Appellant requested that OOR be sanctioned reasonable attorney's fees and be fined $500.00 per day until such requested information was provided. After argument at which only Appellant appeared, the trial court issued an order granting Appellant's requested relief. OOR filed a petition to vacate, averring that as an independent quasi-judicial agency that issues binding determinations under the RTKL, it does not have party standing in appeals from final orders it issues and that it is not a repository of records for local or Commonwealth agencies. OOR further averred that the trial court lacked jurisdiction to award monetary damages against OOR and that the RTKL does not permit the assessment of attorney's fees against OOR. Appellant filed a brief in opposition to the petition and argument was held before the trial court. The trial court treated OOR's petition as a request for reconsideration, which it granted by order entered November 21, 2012. Subsequently, on November 28, 2012, the trial court reiterated its grant of reconsideration and vacated its order of October 22, 2012. Appellant then appealed to this court, from the order of November 21, the original grant of reconsideration.
After Appellant filed his appeal with the trial court, OOR sent a letter dated August 16, 2012, to the Prothonotary, notifying the trial court that pursuant to its discretionary authority under Section 1303(a) of the RTKL, 65 P.S. § 67.1303(a), and pursuant to East Stroudsburg University Foundation v. Office of Open Records, 995 A.2d 496, 507 (Pa. Cmwlth. 2010), app. den., 610 Pa. 602, 20 A.3d 490 (2011) (holding that OOR does not have party standing in appeals from its final orders), that it would rest upon its final determination and would not be filing a brief or appearing for argument. O.R. Item 5. Although it is not clear why, it is apparent from the transcript of the hearing that the trial court was not aware of OOR's notification.
Appellant's appeal must be quashed. Pursuant to Section 5505 of the Judicial Code, 42 Pa. C.S. § 5505, "[e]xcept as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry . . . if no appeal from such order has been taken or allowed." 42 Pa. C.S. § 5505. In this case, following the issuance of its final order on October 22, 2012, and within thirty days thereof, OOR petitioned the trial court to reconsider its order based on assertions that the trial court clearly erred as a matter of law. The trial court expressly granted OOR's petition for reconsideration by order dated November 21, 2012. Although the trial court subsequently issued an order on November 28, 2012, vacating its October 22, 2012 order, Appellant filed his appeal only from the trial court's order granting reconsideration. An order granting reconsideration is not a final appealable order. Notwithstanding the trial court's proper exercise of its discretion to grant reconsideration of its own order within thirty (30) days, it is well settled that appeals may only be taken without leave of court from final orders and collateral orders. Pa. R.A.P. 341(a); Pa. R.A.P. 313(a). A final order is an order that disposes of all claims and all parties. Pa. R.A.P. 341. An order that is neither final nor collateral is interlocutory and, in the absence of permission or a specific rule granting the right to appeal, may not be appealed. In re Class Action Appeal of Kelly, 704 A.2d 172, 175 (Pa. Cmwlth. 1997).
We note that OOR also filed a notice of appeal from the trial court's order with this Court on November 21, 2012, in order to protect its right to appeal should the trial court deny its petition for reconsideration. See O.R., Dockets, at 2.
Accordingly, because Appellant did not file his appeal from a final, appealable order, his appeal must be quashed.
Even had Appellant properly filed his appeal from the trial court's final order of November 28, 2012, we would affirm the trial court's decision dismissing Appellant's appeal. Appellant argues that the trial court erred in ruling on OOR's request for reconsideration because it was not filed within ten days after the trial court's order as required by Rule 227.1 of the Rules of Civil Procedure (requiring post-trial motions to be filed within ten days after bench trial). The Rules of Civil Procedure, however, do not apply to statutory appeals. In re Appeal of Churchill, 525 Pa. 80, 87, 575 A.2d 550, 553 (1990). Furthermore, as noted infra, Section 5505 of the Judicial Code allows a trial court to modify or rescind any order it issues within thirty days after its entry. Where a trial court desires additional time to reexamine its ruling, it must expressly grant reconsideration or vacate its order within 30 days, and thereafter it may reimpose its order or change the order as the court deems appropriate. Commonwealth v. Butler, 566 A.2d 1209, 1211 (Pa. Super. 1989). Here, the trial court expressly granted reconsideration within thirty days and heard argument on the petition before ultimately vacating its October 22, 2012 order. Next, we disagree with Appellant's contention that OOR improperly shifted to him the burden of proving that the requested records were public. Under Section 1310(a)(5) of the RTKL, it is not only appropriate but a statutory requirement that a requestor be specific when appealing a denial under the RTKL to OOR. Requiring a requestor to supply mandatory information "is a typical requirement in any process that aims to provide a forum for error correction." Dep't of Corrections v. Office of Open Records, 18 A.3d 429, 434 (Pa. Cmwlth. 2011). OOR determined that Appellant's appeal was deficient under Section 1101(a) of the RTKL, because that section requires that: "The appeal shall state the grounds upon which the requestor asserts that the record is a public record," and Appellant failed to do so. 65 P.S. §67.1101(a)(1) (emphasis added). Finally, as pointed out by the trial court in its Opinion and Order of November 28, 2012, the City of Washington has provided Appellant with the requested records and, therefore, it would appear that his appeal to OOR is now moot.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 27th day of December, 2013, the appeal of C.E. Kurowski in the above-captioned matter is QUASHED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge