author: DRAYER, S.J.,

text:
    Lower Perkiomen Valley Regional Sewer Auth. v. Lower Providence Twp.

      Blake E. Dunbar Jr., Wendy F. McKenna and Robert L. Brant Jr., for plaintiff.

      Michael J. Sheridan, for defendant.
    February 7, 2011
   DRAYER, S.J.,

FINDINGS OF FACT AND CONCLUSIONS OF LAW PROCEDURAL HISTORY

The first two cases, nos. 2010-24253 and 2010-24257, are cross-petitions for review of an order of the Pennsylvania Office of Open Records filed at no. AP 2010-0552. Requests for records of Lower Providence Township under the Right to Know Law, act of February 14, 2008, P.L. 6, 65 P.S. 67.101 et seq., were made by Robert L. Brant, Esquire on behalf of the Lower Perkiomen Regional Sewer Authority on May 10, 2010. The township produced some documents and withheld others. It provided a matrix and then an amended matrix noting the reasons it withheld each document. The Sewer Authority filed an appeal to the Office of Open Records under Ch. 11 of the right to know law, 65 P.S. 67.1101 and 67.1102. That office issued its decision on My 19, 2010. The authority and township both filed petitions for review pursuant to Ch. 13 of that law on August 16, 2010 with this court.

On October 16, 2010 we heard argument on both petitions. The township submitted copies of the documents withheld for in camera review. Both parties filed briefs.

The third, no. 2010-28931, was filed on September 29, 2010. It is an appeal from the decision of the office of open records at AP 2010-0742 issued August 31, 2010. The underlying request for records was made by Wendy McKenna, Esquire, of Mr. Brant’s office, on behalf of the authority, on June 30, 2010, for seven categories of records, which appear to be a follow-up request arising from the documents produced in response to the May request. The township responded that all the documents falling within requests numbers 5 and 7 would be produced, and that no documents described in request number 6, existed. Requests 1, 2 and 3 were granted in part and refused in part, and request number 4 was refused.

20, 2010

The authority appealed to the Office of Open Records on August 13, 2010, and on Thursday, August 19, 2010 the township received the notice from the Office of Open Records, directing the submission of a response by August 24, 2010. The township’s open records officer was on vacation, so the notice did not get to the township solicitor until August 25,2010, the day after the response was due. A response was submitted electronically and by overnight delivery that day. On August 31, 2010 the office of open records directed disclosure of all the requested documents without reviewing the documents or the reasons for nondisclosure, because the township’s response was one day late. The township moved promptly for reconsideration, but that request was denied.

We heard argument on the township’s appeal on November 6,2010. The parties agreed the township would submit the documents for in camera review, and that all three appeals could be addressed in a single decision.

We are required by 65 P.S. 1302(a) to issue findings of fact and conclusions of law “based on the evidence as a whole” and “clearly and concisely explain the rationale for the decision.” This will be done by first explaining the applicable law, then making individual findings of fact, and summary conclusions of law. These should be read to incorporate the discussion of each applicable reason for disclosure or non-disclosure.

DISCUSSION

The township is a member of the Regional Sewer Authority. The authority receives, transmits and processes sewage from the townships of Lower Providence, Upper Providence and Limerick, and the boroughs of Collegeville and Trappe. The authority is seeking a permit from the Pennsylvania Department of Environmental Resources to construct a new section of its interceptor, the large line that conveys sewage to the treatment plant. It is called the “Middle Interceptor.” The Middle Interceptor is to cross the Perkiomen Creek into Lower Providence Township and run within the township between Hoy Park, a public park, and the Cider Mill Bridge.

Complaints were made to township officials and supervisors starting on December 1, 2009. Township officials investigated, contacted officials from other agencies, and deliberated. This culminated in a direction to the township solicitor, made at a public meeting held on April 15, 2010, to send a written protest to DEP. That document, a letter, was sent on April 16, 2010.

A petition for review of a decision of the Pennsylvania Office of Open Records is made to the court of common pleas when records of a local agency are involved. The appeal is heard de novo: the court reviews the record of the Office of Open Records, holds a hearing, if appropriate, and examines the records in camera, if requested. The court is required to make findings of fact and conclusions of law. Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010) (en banc); 65 P.S. §67.1302(a). The scope of review is the broadest. Pennsylvania State Police v. Office of Open Records, 5 A.3d 473, 476-477 (Pa.

Cmwlth. 2010) (en banc).

The act defines “record” in §67.102 as:

Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document, and “public record” as:
“A record, including a financial record, of a commonwealth or local agency that:
(1) is not exempt under section 708;
(2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or
(3) is not protected by a privilege.”

Thus, the act does not waive any privilege.

Section 305(a), 65 P.S. ‘305(a), provides:

“General rule. — A record in the possession of a commonwealth agency or local agency shall be presumed to be a public record. The presumption shall not apply if:
(1) the record is exempt under section 708;
(2) the record is protected by a privilege; or
(3) the record is exempt from disclosure under any other Federal or State law or regulation or judicial order or decree.”

In No. 2010-24257 the township appealed from that portion of the decision of the office of open records that denied its claim of attorney-client and work product privileges with respect to ten emails and their attachments. The authority, in 2010-24253, seeks review of that portion of the decision that refused to order disclosure. In No. 2010-28931, the township seeks review of the order directing disclosure of all documents.

The attorney-client privilege is statutory, 42 Pa.C.S. §5528:

In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.

Nationwide Mutual Insurance Company v. Fleming, 924 A.2d 1259, 1264 (Pa. Super. 2007), aff'd by an equally divided court, 605 Pa. 484, 992 A.2d 65 (2010), holds this privilege protects only communications made by the client to the attorney and communications by the attorney to the client only when those would reveal the client’s confidential communication to the attorney. The party asserting the privilege must establish that the holder was or sought to become a client, the person to whom communication was made was a member of the bar or his or her subordinate, the communication relates to a fact of which the attorney was informed without the presence of strangers for purpose of securing either an opinion of law, legal services or assistance in a legal matter, and the privilege has been claimed and is not waived by the client. Nationwide, 924 A.2d at 1264.

Although the Supreme Court granted allocatur to consider whether the attorney-client privilege protects communications from the attorney to the client in Gillard v. AIG Insurance Company, 605 Pa. 412, 990 A.2d 1147 (2010), Nationwide is the law unless and until it is overruled. Therefore, the claims of attorney-client privilege will be upheld only when the document originates from a township official, employee or agent, or when the work product privilege is applicable. That privilege protects the attorney’s confidential work product and description of the services rendered insofar as the description would reveal that work product. Schenck v. Township of Center, 893 A.2d 849 (Pa. Cmwlth. 2006), allocatur dismissed as improvidently granted, 601 Pa. 548, 975 A.2d 591 (2009). Documents not privileged do not become privileged by placing them in the hands of an attorney. In re Gartley, 491 A.2d 851, 860 (Pa. Super. 1985), aff’d on other grounds, In re Search Warrant B-21778, 513 Pa.429, 521 A.2d 422 (1987); Commonwealth v. Ferri, 599 A.2d 208, 212 (Pa. Super. 1991), allocatur denied, 534 Pa. 652, 627 A.2d 730 (1993) cert. denied, 510 U.S. 1164 (1994).

The right to know law contains many exceptions to public access in 708, 65 P.S. §67.708, two of which are applicable here. One is for the pre-decisional deliberations of an agency, specifically, in 65 P.S. §708(b)(10)(i)(A):

A record that reflects:

(A) The internal, predecisional deliberations of an agency, its members, employees or officials or predecisional deliberations between agency members, employees or officials and members, employees or officials of another agency, including predecisional deliberations relating to a budget recommendation, legislative proposal, legislative amendment, contemplated or proposed policy or course of action or any research, memos or other documents used in the predecisional deliberations.

This exception codifies the common law privilege reviewed in Commonwealth v. Vartan, 557 Pa. 390, 733 A.2d 1258 (1999) (plurality), which does not apply to information contained in those documents which is purely factual. The township does not dispute the direction that it redact the documents subject to this exception, to provide information that is purely factual. The authority asks the court to rule what information in these documents must be disclosed.

The only other applicable exceptionis 65 P.S. §67.708(b) (17)®:

A record of an agency relating to a noncriminal investigation, including: (i) Complaints submitted to an agency.

The authority argues this does not protect the identity of the complainant. In Stein v. Plymouth Township, 994 A.2d 1179 (Pa. Cmwlth. 2010), the Commonwealth Court held that it does. A non-criminal investigation is any systematic or official inquiry, and need not be triggered by a complaint. These include visiting and inspecting properly, reviewing records and interviewing persons. The purpose of this exception is to protect persons from fear or embarrassment, so they will be willing to participate in the investigatory process. Department of Health v. Office of Open Records, 4 A.3d 803, 809-810 (Pa. Cmwlth. 2010).

Several documents subject to the appeal at 2010-28931 are stated by the township to be missing. We cannot order the disclosure of lost or missing records. August v. Lower Saucon Township Board of Supervisors, 60 D.& C.2d 785 (C.P. Northampton Cty. 1973).

Finally, we conclude that we will conduct de novo review of the documents that are part of the appeal at 2010-28931. The Act, 65 P.S. §67.1102(a), authorizes the appeals officers in the office of open records to set a schedule for the parties to submit documents in support of their position. The time for the township to respond was brief, its one-day-late response was reasonably excused, and the township solicitor acted promptly when he learned of the schedule the day after it ran out.

Denial of reconsideration by an administrative agency, as opposed to denial by a court, is an appealable order, reviewable for abuse of discretion. Keith v. Commonwealth, Department of Public Welfare, 551 A.2d 333, 336 (Pa. Cmwlth. 1988). The refusal to consider a response submitted one day late is akin to the denial of a continuance, which is also reviewable based on an abuse of discretion standard. Hainsey v. Commonwealth, Pennsylvania Liquor Control Board, 529 Pa. 286, 602 A.2d 1300 (1992). Given the short time allowed for a response, the township’s reasonable excuse, and its solicitor’s prompt action, we conclude the refusal of the office of open records to decide this case on the merits was an abuse of discretion.

In Hainsey v. Commonwealth, Pennsylvania Liquor Control Board, 529 Pa. 286, 602 A.2d 1300 (1992), the Supreme Court also relied on the de novo nature of review by the trial court, the standard applicable here. When the standard is de novo procedural defects in the administrative proceedings are irrelevant, Forest Area School District v. Shoup, 621 A.2d 1121, 1125 (Pa. Cmwlth. 1993), Weber v. Commonwealth, Department of Transportation, 675 A.2d 359 (Pa. Cmwlth. 1996), unless those defects go to the ability of the agency to act. Tieger v. Philadelphia Fair Housing Commission, 496 A.2d 76, 78, n. 3 (Pa. Cmwlth. 1985).

While we would regard an agency’s unexcused failure to participate in proceedings before the office of open records as a basis to refuse to review its decision on the merits, we conclude the township’s slight, excused, delay here justifies de novo consideration of that appeal on the merits.

Based on this, the court makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Documents Requested on May 10, 2010

1. A. Document No. 1 is an email dated 12/1/09 from a citizen to a township official, making a complaint.

B. Document No. 1 is exempt from disclosure pursuant to §708(b)(17).

2. A. Document No. 2 is an email dated 12/10/09 forwarding document No. 1 to other township officials.

B. Document No. 2 is exempt from disclosure pursuant to §708(b)( 17).

3. A. Document No. 3 is an email dated 12/10/09 forwarding document No. 1 to other township officials.

B. Document No. 3 is exempt from disclosure pursuant to 708(b)(10) and 708(b)(17).

4. A. Document No. 4 is an email dated 12/10/09 forwarding document No.l to other township officials.

B. Document No. 4 is exempt from disclosure pursuant to 708(b)(10) and 708(b)(17).

5. A. Document No. 5 is an email dated 12/10/09 forwarding document No. 1 to other township officials.

B. Document No. 5 is exempt from disclosure pursuant to 708(b)(10) and 708(b)(17).

6. A. Document No. 6 is an email dated 1/11/10 among township officials relating to document No. 1 and the investigation that followed.

B. Document No. 6 is exempt from disclosure pursuant to 708(b)(l 0) and 708(b)(17).

7. A. Document No. 7 is an email dated 12/10/09 forwarding document No. 1 to other township officials.

B. Document No. 7 is exempt from disclosure pursuant to 708(b)(10) and 708(b)(17).

8. A. Document No. 8 is an email dated 1/10/10 among township officials scheduling an appointment with the author of document No. 1.

B. Document No. 8 is exempt from disclosure pursuant to 708(b)(10) and 708(b)(17).

9. A. DocumentNo. 9 is a email dated 1/11/10 among township officials, giving the address of the author of document No. 1.

B. Document No. 9 is exempt from disclosure pursuant to §§708(b)(10) and 708(b)(17).

10. A. Document No. 10 is an email dated 1/12/10 inquiring about the results of the appointment referred to in document No. 8.

B. Document No. 10 is exempt from disclosure pursuant to §§708(b)(10) and 708(b)(17).

11. DocumentNo. 11 is an email dated 1/12/10 among township officials forwarding a complaint from another resident and discussing the investigation that is to be conducted.

B. Document No. 11 is exempt from disclosure pursuant to §§708(b)(10) and 708(b)(17).

12. A. Document No. 12 is an email dated 1/13/10 among township officials discussing the information gained from the appointment referred to in document No. 10.

B. Document No. 12 is exempt from disclosure pursuant to §708(b)(10). It does not contain factual information, so a redacted document need not be supplied.

13. A.DocumentNo. 13 is an email dated 1/14/10 from the complainant who sent document No. 11 to a township official.

B. Document No. 13 is not exempt from disclosure under §708(b)(10) but is exempt under §708(b)(17) because it would reveal the identity of a person submitting a complaint.

14. A. Document No. 14 is an email dated 2/5/10 among township officials.

B. Document No. 14 is exempt from disclosure under §708(b)(10), except for the second full paragraph of text, which is factual information that must be disclosed. All other information may be redacted.

15. Document No. 15 is identical to document No. 14 and shall be treated in the same manner as document No. 14.

16.Document No. 16 is identical to document No. 14 and shall be treated in the same manner as document No. 14.

17.A. Document No. 17 is an email dated 2/5/10 forwarding document No. 14 among township officials.

B. The covering email in documentNo. 17 is exempt from disclosure under §708(b)(10), and the balance of the document shall be treated in the same manner as document No. 14.

18. A. Document No. 18 is an email dated 2/23/10 forwarding to township officials minutes of a meeting held February 1, 2010 among township officials.

B. Document No. 18 is exempt from disclosure under §708(b)(10), except for this factual information: from the 5th word of the 3rd full paragraph on first page of the attached minutes through end of that sentence, from the 6th word of the 6th paragraph on the first page of the minutes through end of that sentence, from the 7th word of the 7th paragraph on page 2 of those minutes through end of that sentence, and, under the PADEP Heading on the 3rd page from the 5th word of the 2nd paragraph through the end of that paragraph.

19. A. Document No. 19 is an email dated 3/1/10 forwarding a letter from a township resident.

B. The email is exempt from disclosure under §708(b)(10) and contains no factual information, so a redacted copy need not be supplied. The attached letter is exempt from disclosure under §708(b)(17).

20. A. Document No. 20 is an email from the township solicitor dated 3/9/10 forwarding a letter proposed to be sent to the authority.

B. Document No. 20 is a communication from a lawyer to the client which does not contain information provided by the client to the attorney, and is, therefore, not subject to the attorney client privilege.

21. A. Document No. 21 is an email dated 3/11/10 forwarding the letter attached to document No. 20 to a township resident. The office of open records denied the township’s claim of attorney client privilege and the township did not petition for review of that determination.

B. Because there is no objection to the disclosure of document No. 21, and because it forwards to a member of the public a letter we have determined not to be privileged, it must be disclosed.

22. A. Document No. 22 is an email dated 4/7/10 among township officials.

B. Document No. 22 is exempt from disclosure under §708(b)(10) and contains no factual information, so a redacted copy need not be supplied.

23. A. Document No. 23 is an email dated 4/7/10 among township officials and a member of the Pennsylvania General Assembly regarding a meeting with a commonwealth agency.

B. Document No. 23 is exempt from disclosure under §708(b)(10) and contains no factual information, so a redacted copy need not be supplied.

24. A. Document No. 24 is an email dated 4/9/10 from a member of the Pennsylvania General Assembly to township officials with forwarded emails.

B. Document No. 24 is exempt from disclosure under §708(b)(10) and contains no factual information, so a redacted copy need not be supplied.

25. A. Document No. 25 is an email dated 4/12/10 from the township solicitor to township officials.

B. Document No. 25 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

26. A. Document No. 26 is an email dated 4/12/10 from a township official sent in confidence to the township solicitor in response to document No. 25.

B. Document No. 26 is subject to the attorney-client privilege and is therefore exempt from disclosure.

27. A. Document No. 27 is an email dated 4/12/10 among township officials, forwarding documents Nos. 25 and 26.

B. Document No. 27 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

28.A. Document No. 28 is an email dated 4/12/10 from a township official to a township official forwarding the email exchange described in No. 25-27, above.

B. Document No. 28 is exempt from disclosure under §708(b)(10) and contains information provided by township officials, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

29. A. Document No. 29 is an email dated 4/12/10 from a commonwealth official to township officials, with forwarded emails among officials.

B. Document No. 29 is exempt from disclosure under §708(b)(10) and contains no factual information, so a redacted copy need not be supplied.

30. A. Document No. 30 is an email dated 4/12/10 among township officials providing the email exchange described in No. 26, above.

B. Document No. 30 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

31. A. Document No. 31 is an email dated 4/12/10 among township officials providing the email exchange described in No. 26, above.

B. Document No. 31 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

32. A. Document No. 32 is an email dated 4/13/10 among township officials forwarding document No. 29.

B. Document No. 32 is exempt from disclosure under §708(b)(10) and contains no factual information, so a redacted copy need not be supplied.

33. A. Document No. 33 is an email dated 4/13/10 forwarding document No. 29 to the township solicitor and conveying information.

B. Document No. 33 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

34. A. Document No. 34 is an email dated 4/13/10 from a township official to a commonwealth official responding to document No. 29.

B. Document No. 34 is exempt from disclosure under §708(b)(10) and contains no factual information, so a redacted copy need not be supplied.

35. A. Document No. 35 is an email dated 4/13/10 among township officials forwarding document No. 34.

B. Document No. 35 is exempt from disclosure under §708(b)(10) and contains no factual information, so a redacted copy need not be supplied.

36. A. Document No. 36 is an email dated 4/13/10 among township officials forwarding document No. 34.

B. Document No. 36 is exempt from disclosure under §708(b)(10) and contains no factual information, so a redacted copy need not be supplied.

37. A. Document No. 37 is an email dated 4/13/10 from a township official to the township solicitor.

B. Document No. 37 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

38. A. Document No. 38 is an email dated 4/13/10 among township officials and the township solicitor providing information concerning document No. 37.

B. Document No. 38 is exempt from disclosure under §708(b)(10) and contains infonnation provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

39. A. Document No. 39 is an email dated 4/14/10 from the township solicitor to a township official which recites information provided by township officials in confidence.

B. Document No. 39 is exempt from disclosure under the attorney-client privilege.

40. A. Document No. 40 is an email dated 4/14/10 among township officials forwarding document No. 39.

B. Document No. 40 is except from disclosure under the attorney-client privilege.

41. A. Document No. 41 is an email dated 4/15/10 among township officials and the township solicitor.

B. Document No. 41 is exempt ifom disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

42. A. DocumentNo. 42 is an email dated 4/15/10 from the township solicitor to township officials responding to document No. 41 and seeking information.

B. Document No. 42 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

43. A. Document No. 43 is an email dated 4/15/10 among township officials and the township solicitor responding to document No. 41.

B. Document No. 43 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

44. A. Document No. 44 is an email dated 4/15/10 among township officials and the township solicitor responding to document No. 43.

B. Document No. 44 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

45. A. Document No. 45 is an email dated 4/15/10 among township officials forwarding documents Nos. 43 and 44 and responding.

B. Document No. 45 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

46. A. DocumentNo. 46 is an email dated 4/15/10 from a township official to the township solicitor providing information.

B. Document No. 46 is exempt from disclosure under §708(b)(10) and contains infonnation provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

47. A. Document No. 47 is an email dated 4/15/10 from a complainant to a township official, containing information from government agencies.

B. Document No. 47 is exempt from disclosure pursuant to §§708(b)(10) and 708(b)(17).

48. A. Document No. 48 is an email dated 4/15/10 from a complainant to a township official forwarding document No. 47 with an additional message.

B. Document No. 48 is exempt from disclosure pursuant to §§708(b)(10) and 708(b)(17).

49. A. Document No. 49 is an email dated 4/15/10 from a township official to a complainant, responding to No. 48 and repeating its contents.

B. Document No. 49 is exempt from disclosure pursuant to §§708(b)(10) and 708(b)(17).

50. A. Document No. 50 is an email dated 4/15/10 from a complainant to a township official forwarding No. 49 and attempting to forward an additional document.

B. Document No. 50 is exempt from disclosure pursuant to §§708(b)(10) and 708(b)(17).

51. A. Document No. 51 is an email dated 4/15/10 from a township official to the township solicitor.

B. Document No. 51 is subject to the attorney-client privilege and is exempt from disclosure.

52. A. Document No. 52 is an email dated 4/15/10 from a complainant to a township official forwarding No. 49 and actually forwarding the additional document thought to have been forwarded by document No. 50.

B. Document No. 52 is exempt from disclosure pursuant to §§708(b)(10) and 708(b)(17).

53. A. Document No. 53 is an email dated 4/15/10 from a township official to the township solicitor providing information.

B. Document No. 53 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

54. A. Document No. 54 is an email dated 4/15/10 from a complainant to a township official, re-forwarding and commenting on documents Nos. 48 and 49.

B. Document No. 54 is exempt from disclosure pursuant to §§708(b)(10) and 708(b)(17).

55. A. DocumentNo. 55 is an email dated 4/15/10 from the township solicitor to a township official and reciting information provided.

B. Document No. 55 is exempt from disclosure under §708(b)(10) and contains information provided by township officials to counsel, in confidence, so it is also exempt from disclosure under the attorney-client privilege. Because that privilege is not subject to an exemption for factual information, a redacted copy need not be supplied.

56. A. Document No. 56 is an email dated 4/15/10 from the township solicitor to township officials forwarding attached documents.

B. The first page of the email and the attached draft are exempt from disclosure under §708(b)(10) but not subj ect to the attorney-client privilege because information provided by the client in confidence is not recited. The attached request for documents by the Sewer Authority is a public record not subject to any exception and must be disclosed.

57. A. DocumentNo. 57 is an email dated 4/15/10 from the township solicitor to township officials forwarding attached documents.

B. The first page of the email and the attached draft are exempt from disclosure under §708(b)(10) but not subj ect to the attorney-client privilege because information provided by the client in confidence is not recited. The attached request for documents by the Sewer Authority is a public record not subject to any exception and must be disclosed.

58. A. DocumentNo. 58 is an email from a complainant to a township official.

B. Document No. 58 is exempt from disclosure pursuant to §708(b)(10) and 708(b)(17).

59. A. Document No. 59 is an email dated 4/15/10 from the township solicitor to township officials with attachments.

B. The first page of the email reflects information provided in confidence by township officials to the township solicitor and is subject to the attorney-client privilege. The remaining pages are public records not subject to an exception and must be disclosed.

60. A. Document No. 60 is an email dated 4/16/10 among township officials, foiwards the email described in No. 59, above, and the same attachments.

B. The email is exempt from disclosure under §708(b)(10) and the forwarded email, No. 59 reflects information provided in confidence by township officials to the township solicitor and is subject to the attorney-client privilege. The remaining pages are public records not subject to an exception and must be disclosed.

61. A. Document No. 61 is an email dated 4/16/10 among township officials, forwards the email described in No. 59, above, and the same attachments.

B. The email is exempt from disclosure under §708(b)(10) and the forwarded email, No. 59 reflects information provided in confidence by towmship officials to the township solicitor and is subject to the attorney-client privilege. The remaining pages are public records not subject to an exception and must be disclosed.

62. A. Document No. 62 is an email dated 4/16/10 from a complainant to a township official forwarding No. 49, above, and containing No. 48.

B. Document No. 62 is exempt from disclosure pursuant to §§708(b)(10) and 708(b)(17).

63. A. DocumentNo. 63 is an email dated 4/16/10 from a complainant to a township official foiwarding No. 49, above and containing No. 48 and an additional comment.

B. Document No. 63 is exempt from disclosure pursuant to §§708(b)(10) and 708(b)(17).

64. A. Document No. 64 is an email dated 4/21/10 from the township solicitor to a township official.

B. Document No. 64 is subject to the work product privilege and is exempt from disclosure.

65. A. Document No. 65 is an email dated 4/21/10 distributing No. 64 among township officials.

B. Document No. 65 is subject to the work product privilege and is exempt from disclosure.

66. A. Document No. 66 is an email dated 4/22/10 from a resident to a township official which seeks advice about holding public events, but which also attaches predecisional information.

B. The first and last pages of document No. 66 are not predecisional or subject to any other exception and must be disclosed. The second and third pages contain information exempt from disclosure pursuant to §708(b) (10), and no factual information, so redacted copies of those pages need not be provided.

67. A. Document No. 67 is an email dated 4/23/10 having the same sender and recipient as No. 66, expanding on it.

B. The first, second page through the word “Rick” and last page of document No. 66 are not predecisional or subject to any other exception and must be disclosed. The second and third pages contain information exempt from disclosure pursuant to §708(b)(10), and no factual information, so redacted copies of those pages need not be provided.

68. A. Document No. 68 is an email dated 4/28/10 from a resident to a township official, a redacted copy of which was provided by the township to the authority.

B. DocumentNo. 68 is not subjeetto any exemption and a complete copy must be provided.

69. A. Document No. 69 is an email dated 4/28/10 from a resident to a township official, a redacted copy of which was provided by the township to the authority.

B. DocumentNo. 69 is not subjeetto any exemption and a complete copy must be provided.

70. A. Document No. 70 is an email dated 4/28/10 from a resident to a township official, a redacted copy of which was provided by the township to the authority.

B. DocumentNo. 70 is not subjeetto any exemption and a complete copy must be provided.

71. A. Document No. 71 is an email dated 4/28/10 from a resident to a township official, a redacted copy of which was provided by the township to the authority.

B. DocumentNo. 71 is not subjeetto any exemption and a complete copy must be provided.

72. A. Document No. 72 is an email dated 4/29/10 from the township solicitor to a township official.

B. Document No. 72 contains no information provided by a client in confidence, is not work product, and must be disclosed.

73. A. Document No. 73 is an email dated 4/29/10 from a township official to the township solicitor.

B. Document No. 73 is a communication from a client to an attorney, made in confidence, is subject to the attorney-client privilege and is not subject to disclosure.

74. A. Document No. 74 is an email dated 4/29/10 from a township official to a resident. A copy was supplied redacting personal medical information concerning the supervisor.

B. The redacted portions of document No. 74 concern only personal medical information, and, based on the agreement of counsel for the authority that this information is not being sought, the redacted copy supplied is sufficient.

15. A. Document No. 75 is an email from the township solicitor to a township official, responding to No. 73.

B. Document No. 75 contains and reveals confidential communications from a client to an attorney, is subject to the attorney-client privilege, and is not subject to disclosure.

76. A. Document No. 76 is an email from a township resident to a township official, a redacted copy of which was provided by the township to the authority.

B. The redacted portions of document No. 76 concern only personal medical information, and, based on the agreement of counsel for the authority that this information is not being sought, the redacted copy supplied is sufficient.

77. A. Document No. 77 is an email dated 5/3/10 from a township resident to a township official.

B. The first, and the second page through the word “Rick” are not predecisional or subject to any other exception and must be disclosed. The remaining pages contain information exempt from disclosure pursuant to §708(b)(10), and no factual information, so redacted copies of those remaining pages need not be provided.

Documents Requested on June 30, 2010

Request No. 1

78. A. Document No. 4 is an email dated 6/8/10 from a township official to the township solicitor, seeking legal advice.

B. Document No. 4 is exempt from disclosure under the attorney-client privilege.

79. A. Document No. 8 consists of several emails ending with the date 6/5/10 discussing an upcoming meeting to be held among township and state offices about any issues not relating to the interceptor.

B. Document No. 8 is exempt from disclosure as pre-decisional deliberations under §708(b)(10), and need not be disclosed.

80. A. Document No. 11 consists of several emails ending with the date 5/25/10 among township and township sewer authority officials about issues not relating to the interceptor.

B. Document No. 11 is exempt from disclosure as pre-decisional deliberations under §708(b)(10)5 and need not be disclosed.

81. A. Document No. 12 consists of several emails ending with the date 5/25/10 among township and township sewer authority officials about issues not relating to the interceptor.

B. Document No. 12 is exempt from disclosure as pre-decisional deliberations under §708(b)(10), and need not be disclosed.

82. A. Document No. 19 consists of several emails ending with the date 5/3/10 among township and township sewer authority officials concerning the interceptor.

B. Document No. 19 is exempt from disclosure as pre-decisional deliberations under §708(b)(10), and need not be disclosed.

83. A. Document No. 22 consists of several emails ending with the date 4/30/10 all included within document No. 19.

B. Document No. 22 is exempt from disclosure as pre-decisional deliberations under §708(b)(10), and need not be disclosed.

84. A. Document No. 23 consists of several emails ending with the date 4/29/10 all included within document No. 22.

B. Document No. 23 is exempt from disclosure as pre-decisional deliberations under §708(b)(10), and need not be disclosed.

85. A. Document No. 24 consists of several emails ending with the date 4/29/10 among township and township sewer authority officials about issues not relating to the interceptor.

B. Document No. 24 is exempt from disclosure as pre-decisional deliberations under §708(b)(10), and need not be disclosed.

86. A. Document No. 32 is a series of emails ending with the date 4/16/10 among township officials, copied to the township solicitor, and forwarding an email from a state official.

B. Document No. 32 is exempt from disclosure as pre-decisional deliberations under §708(b)(10), and need not be disclosed, but the claim of attorney-client privilege is denied because it only puts non-privileged documents in the hands of an attorney, which does not make non-privileged documents privileged.

87. A. Document No. 33 is an email dated 4/16/10 to which a photograph is attached, which the township asserts is not a public record, but was maintained on a township computer.

B. Because Document No. 33 is maintained on a township computer it is a public record not asserted to be within any exception, so it must be disclosed.

88. A. Document No. 34 is an email dated 4/15/10 to the township solicitor, and other officials seeking comment by the solicitor.

B. Document No. 34 is exempt from disclosure as pre-decisional deliberations under §708(b)(10) and as attorney-client privileged, and need not be disclosed.

89. A. DocumentNo. 35 is an email dated 4/15/10 from a township official to the township solicitor, copied to other township officials seeking comment by the solicitor.

B. Document No. 35 is exempt- from disclosure under that attorney-client and work product privileges and need not be disclosed.

90. A. Document No. 36 is an email dated 4/15/10 from a township official to the township solicitor, copied to other township officials, containing the emails in document No. 35, seeking comment by the solicitor.

B. Document No. 36 is exempt from disclosure under that attorney-client and work product privileges and need not be disclosed.

91. A. Document No. 37 is an email dated 4/15/10 from a township official to the township solicitor, copied to other township officials, containing the emails in document No. 35, seeking comment by the solicitor.

B. Document No. 37 is exempt firom disclosure under the attorney-client and work product privileges and need not be disclosed.

92. A. DocumentNo. 39 is an email dated 4/13/10 from a township official to the township solicitor, conveying information.

B. Document No. 39 is exempt from disclosure under the attorney-client and work product privileges and need not be disclosed.

93. A. Document No. 44 is a scries of emails ending on 4/13/10 among township officials.

B. Document No. 44 is exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

94. A. Document No. 45 is a series of emails ending 4/12/10 among township officials including the emails included in document No. 39.

B. Document No. 45 is exempt from disclosure under the attorney-client and work product privileges and need not be disclosed.

95. A. Document No. 53 is an email dated 3/19/10 among township officials forwarding an email from a township resident.

B. Document No. 53 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

96. A. Document No. 54 cannot be located.

B. Since document No. 54 is missing it cannot be disclosed.

97. A. Document No. 56 is an email dated 3/10/10 among township officials concerning a complaint not related to the interceptor.

B. Document No. 56 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17), and need not be disclosed.

98. A. Document No. 57 is a series of emails ending 3/4/10 among township officials including information provided by township residents.

B. Document No. 57 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

99. A. Document No. 58 is a series of emails ending 3/3/10 among township officials, included in document No. 57.

B. Document No. 58 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

100. A. Document No. 59 is a series of emails ending 3/3/10 among township officials, included in document No. 58.

B. Document No. 59 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

101. A. Document No. 62 is an email among township officials forwarding copies of old advertisements.

B. Counsel for the authority agreed at oral argument the authority is not seeking old advertisements, so this document need not be disclosed.

102. A. Document No. 63 is an email among township officials forwarding copies of old advertisements.

B. Counsel for the authority agreed at oral argument the authority is not seeking old advertisements, so this document need not be disclosed.

103. A. Document No. 70 is an email dated 1/26/10 among township officials forwarding complaints from township residents.

B. Document No. 70 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

104. A. Document No. 71 is an email dated 1/26/10 among township officials concerning complaints from township residents.

B. Document No. 71 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(1.0) and need not be disclosed.

Request No. 2

105. A. Document No. 1 is an email dated 6/30/10 from Cathy Beyer to township and state officials.

B. Document No. 1 is post-decisional and concerns involving public officials in a court proceeding, does not fall within any exception, and must be disclosed.

106. A. Document No. 4 is a series of emails ending 6/8/10 among township officials.

B. Document No. 4 is post-decisional and concerns strategy, does not fall within any exception, and must be disclosed.

107.A. Document No. 8 is an email dated 6/1/10 from Cathy Beyer to a state official, copied to township officials.

B. Document No. 8 is post-decisional, does not fall within any exception, and must be disclosed.

108.A. Document No. 9 is an email dated 5/25/10 from Cathy Beyer to township officials concerning public notice.

B. Document No. is post-decisional, does not fall within any exception, and must be disclosed.

109. A. Document No. 10 is an email dated 5/30/10 from Cathy Beyer to various officials seeking assistance with permit termination.

B. Document No. 10 is post-decisional, does not fall within any exception, and must be disclosed.

110. A. Document No. 11 is an email dated 5/19/10 from Cathy Bayer to a township official concerning public documents.

B. Document No. 11 is post-decisional, does not fall within any exception, and must be disclosed.

111. A. Document No. 15 is an email dated 5/18/10 from Cathy Beyer to an official of the Army Corps of Engineers, copied to township officials.

B. Document No. 15 is post-decisional, does not fall within any exception, and must be disclosed.

112. A. Document No. 16 is an email dated 5/7/10 from Cathy Beyer to township officials concerning conversation with Army Corps of Engineers representative.

B. Document No. 16 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

113. A. Document No. 17 is an email dated 5/7/10 from Cathy Beyer to state officials and forwarded to a township official.

B. Document No. 17 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(l 0) and need not be disclosed.

114. A. Document No. 22 is an email dated 4/29/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

115. A. Document No. 23 is an email dated 4/29/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

116. A. Document No. 27 is an email dated 4/28/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

117. A. Document No. 28 is an email dated 4/28/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

118. A. Document No. 29 is an email dated 4/28/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

119. A. Document No. 33 is an email dated 4/27/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

120. A. Document No. 35 is an email dated 4/27/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

121. A. Document No. 36 is an email dated 4/27/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

122. A. Document No. 38 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 38 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

123. A. Document No. 39 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 39 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

124. A. Document No. 40 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 40 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

125. A. Document No. 41 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 41 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

126. A. Document No. 42 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 42 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

127. A. Document No. 43 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 43 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

128. A. Document No. 44 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 44 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

129. A. Document No. 45 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 45 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

130. A. Document No. 46 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 46 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

131. A. Document No. 47 is said to be a picture attached to an email unrelated to the interceptor dispute, which cannot be located.

B. Since document No. 47 is missing it cannot be disclosed.

132. A. Document No. 48 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 48 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

133. A. Document No. 49 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 49 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

134. A. Document No. 50 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 50 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

135. A. Document No. 51 contains emails which were produced, from which was redacted an email dated 4/15/10 from state officials to township officials.

B. The redacted portions of document No. 51 are exempt from disclosure as pre-decisional deliberations under §708(b)(10) and need not be disclosed.

136. A. Document No. 53 is an email dated 4/14/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

137. A. Document No. 54 is an email dated 4/14/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

138. A. Document No. 55 is an email dated 4/13/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

139. A. Document No. 56 is an email dated 4/13/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

140. A. Document No. 57 is an email dated 4/13/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

141. A. Document No. 58 is an email dated 4/13/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

142. A. Document No. 59 is an email dated 4/13/10 which was supplied to the authority, but from which was redacted personal medical information.

B. The authority agrees personal medical information need not be disclosed, so an unredacted version of this document need not be produced.

143. A. Document No. 62 is a series of emails ending 4/8/10 between Cathy Beyer and Rick Brown forwarding and discussing earlier emails.

B. Document No. 62 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

144. A. Document No. 63 is the same as document No. 62, deleting the top (most recent) email.

B. Document No. 63 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

145. A. Document No. 64 is the same as document No. 63, deleting the top (most recent) email.

B. Document No. 64 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

146. A. Document No. 67 is a series of emails ending 3/20/10 containing, discussing and responding to complaints from township residents.

B. Document No. 67 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

147. A. Document No. 73 is a series of emails ending 3/4/10 containing, forwarding and responding to complaints from township residents.

B. Document No. 73 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

148. A. Document No. 74 is the same as document No. 73, omitting some of the most recent emails.

B. Document No. 74 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

149. A. Document No. 75 is the same as Document No. 74, omitting some of the most recent emails.

B. Document No. 75 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

150. A. Document No. 76 is the same as document No. 75, omitting some of the most recent emails.

B. Document No. 76 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

151. A. Document No. 77 cannot be located, but is said to be a complaint from a resident dated 2/3/10 or 4/10/10.

B. Since document No. 77 is missing it cannot be disclosed.

152.A. Document No. 78 is the same as document No. 76, omitting some of the most recent emails.

B. Document No. 78 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

153. A. Document No. 79 is the same as document No. 78, omitting the last email.

B. Document No. 79 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

154. A. Document No. 80 is the same as document No. 79, omitting the top email.

B. Document No. 80 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

155. A. Document No. 81 is the same as document No. 80, omitting the top email.

B. Document No. 81 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

156. A. Document No. 82 is the same as document No. 81, omitting the top email.

B. Document No. 82 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

157. A. Document No. 83 is the same as document No. 82, omitting the top email.

B. Document No. 83 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

158. A. Document No. 84 is the same as document No. 83, omitting the top email.

B. Document No. 84 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

159. A. Document No. 85 is the same as document No. 84, omitting the top email.

B. Document No. 85 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

160. A. Document No. 86 is an email dated 1/28/10 containing and discussing complaints from residents.

B. Document No. 86 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

161. A. Document No. 88 is the same as document No. 86, omitting the top email.

B. Document No. 88 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

162. A. Document No. 89 is an email dated 1/27/10 from Cathy Beyer to a state official, copied to township officials forwarding and discussing information and complaints.

B. Document No. 89 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

163. A. Document No. 90 is an email dated 1/27/10 from Cathy Beyer to various officials forwarding and discussing information and complaints.

B. Document No. 90 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

164. A. Document No. 91 is an email dated 1/27/10 from Cathy Beyer to various officials forwarding and discussing information and complaints.

B. Document No. 91 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

165. A. Document No. 92 is an email dated 1/27/10 from Cathy Beyer to various officials forwarding and discussing information and complaints.

B. Document No. 92 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

166. A. Document No. 93 is an email dated 1/27/10 from Cathy Beyer to various officials forwarding and discussing information and complaints.

B. Document No. 93 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(l 0) and need not be disclosed.

167. A. Document No. 94 is identical to document No. 93.

B. Document No. 94 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

168. A. Document No. 95 is an email dated 1/26/10 from Cathy Beyer to various officials forwarding and discussing information and complaints.

B. Document No. 95 is a complaint submitted to an agency, exempt from disclosure under §708(b)(l 7) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

169. A. Document No. 96 is an email dated 1/26/10 from Cathy Beyer to a various officials forwarding and discussing information and complaints.

B. Document No. 96 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

170. A. Document No. 97 is an email dated 1/26/10 from Cathy Beyer to various officials forwarding and discussing information and complaints.

B. Document No. 97 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

171. A. Document No. 98 is an email dated 1/26/10 from a Township official to various officials and residents forwarding and discussing information and complaints.

B. Document No. 98 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(17) and need not be disclosed.

Request No. 3

172. A. Document No. 1 is an email dated 4/15/10 among state and township officials, which is redacted from document No. 38 and others in request No. 2, above.

B. Document No. 1 contains pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

173. A. Document No. 3 is an email dated 4/13/10 from a township official to a state official, forwarding earlier emails containing complaints and deliberations.

B. Document No. 3 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(10) and need not be disclosed.

174. A. Document No. 4 is the same as document No. 3, without the top email.

B. Document No. 4 is a complaint submitted to an agency, exempt from disclosure under §708(b)(17) and pre-decisional deliberations exempt from disclosure under §708(b)(l 0) and need not be disclosed.

Request No. 4

175. A. The document that responds to request No. 4 is identical to the document attached to the email described in request No. 18 from the documents requested on May 20, 2010.

B. This document is exempt from disclosure under §708(b)(10), except for this factual information: from the 5th word of the 3rd full paragraph on first page of the attached minutes through end of that sentence, from the 6th word of the 6th paragraph on the first page of the minutes through end of that sentence, from the 7th word of the 7th paragraph on page 2 of those minutes through end of that sentence, and, under the PADEP Pleading on the 3rd page from the 5th word of the 2nd paragraph through the end of that paragraph.

      . That case, docketed in the Supreme Court at No. 10 EAP 2010, was argued on September 14, 2010, but has not been decided.


source: Caselaw Access Project

author: FORD, J.,

license: Public Domain

text:
    Andriotis v. Taylor

      Mark B. Stanziola, for plaintiff.

      Henry R. Newton Jr., for defendant.
    February 1, 2011
   FORD, J.,

On August 17, 2010, plaintiff gave birth to a son, Alexander. Plaintiff claims that she became pregnant with Alexander through an extramarital affair that she had with defendant. Plaintiff brought a complaint for child support against defendant. Defendant filed preliminary objections which included an argument that the complaint against him must be dismissed due to the presumption in the law that plaintiff’s husband is the father of Alexander in that plaintiff and her husband had an intact marriage at the time of Alexander’s conception and birth. Rased upon the evidence presented at the December 1 hearing, the court concludes that the presumption applies and plaintiff has not met her considerable burden in demonstrating the inapplicability of the presumption.

It is proper to address the matter of paternity of Alexander through a preliminary objection to the complaint for support. See Scott v. Mershon, 576 A.2d 67 (Pa. Super. 1990); and Scott v. Mershon, 657 A.2d 1304 (Pa. Super. 1995), where the presumption of paternity was the issue that was resolved through preliminary objections. Also, under Pa.R.C.P. 1028(a)(4), a party is provided the opportunity to challenge the legal sufficiency of a pleading in a preliminary objection. One of defendant’s preliminary objections is a challenge to the legal sufficiency of the complaint, namely, that the plaintiff is not able to state a claim for support against the defendant where there is a presumption of paternity. Moreover, there was no obj ection by either party to the court’s addressing the issue at this preliminary objection stage where evidence was received from both parties at the December 1 hearing. The parties also presented briefs and arguments to the court on this preliminary objection.

Pennsylvania’s appellate courts have explained the presumption of paternity on many occasions. Consider the following:

The presumption of paternity, i.e., the presumption that a child conceived or bom during a marriage is a child of the marriage, has been described by our Supreme Court as “one of the strongest presumptions known to the law.” (citation omitted) The policy underlying the presumption is the preservation of marriages, (citation omitted) Accordingly, our Supreme Court has held that the presumption of paternity applies only where the underlying policy to preserve marriages would be advanced by the application of the presumption, (citation omitted) When there is no longer an intact family or a marriage to preserve, then the presumption of paternity is not applicable, (citations omitted) Vargo v. Schwartz, 940 A.2d 459, 463 (Pa. Super. 2007).

Under some circumstances, the presumption of paternity can be rebutted.

[T]he presumption may be overcome by clear and convincing evidence that either of the following circumstances was true at the time of conception: The presumptive father, i.e., the husband, was physically incapable of procreation because of impotency or sterility, or the presumptive father had no access to his wife, i.e., the spouses were physically separated and thus were unable to have had sexual relations, (citations omitted) In Pennsylvania, impotency/sterility and non-access constitute the only ways to rebut the presumption of paternity, (citations omitted) Vargo v. Schwartz, 940 A.2d at 463.

There is also case law that the presumption can be overcome by clear and convincing evidence that there was lack of sexual intercourse between the husband and wife at the time of conception. Connell v. Connell, 477 A.2d 872, 875 (Pa. Super. 1984).

Plaintiff, Sara Andriotis, married Paul Andriotis in May, 2005. She has resided with him throughout the marriage to the present. They currently reside at 901 North VanBuren Street, Allentown, Lehigh County, Pennsylvania, 18019.

Beginning in spring or early summer of 2009, Ms. Andriotis had an affair with defendant, Derek Z. Taylor. On occasion, plaintiff would stay overnight at Mr. Taylor’s residence. The parties engaged in sexual intercourse throughout the months of the affair. The parties disagree as to when the affair ended. Defendant testified it ended in August 2009. Plaintiff testified it extended at least through November of 2009 when Alexander was conceived. Plaintiff maintained her residence with her husband throughout the affair.

Plaintiff did not tell her husband, Mr. Andriotis, about the affair. He learned about it somehow because, on at least one occasion, he telephoned Mr. Taylor because of the affair.

Plaintiff delivered her child, Alexander Daniel Lyons (Lyons is the maiden name of plaintiff’s mother), who is the subject of this support action, on August 17, 2010. From the conception of Alexander, through his birth, to the date of hearing, he resided in the same home with plaintiff and her husband. Defendant, Derek Taylor, denies responsibility for the child.

Mother testified that she ceased her marital relationship, including intimate relations, with her husband at the time that she started her affair with Mr. Taylor in spring or early summer of 2009. She claims she and her husband separated but continued to live under the same roof from then until the date of the hearing. She testified that she has wanted a divorce from Mr. Andriotis from the time she began the affair with Mr. Taylor and she told her husband that. Neither plaintiff nor her husband has filed for divorce. There are no documents, such as a separation agreement, attesting to the separated status that plaintiff claims for herself and her husband in their marital relationship.

Plaintiff filed a separate support action against her husband (Lehigh County no. DR-10-02025). Through the printed, standard language of that complaint, plaintiff alleges that her husband is the father of Alexander.

Although plaintiff testified that she and her husband have not lived as husband and wife since the first part of 2009, in September 2009, while plaintiff was having the affair with Mr. Taylor, she refinanced the VanBuren Street residence. Her in-laws’ names were removed from the deed to the VanBuren Street home and she re-titled that property naming her and her husband as the owners.

Plaintiff’s husband, Mr. Andriotis, did not testify at the December 1 hearing.

Plaintiff testified that she has not wanted to reside with her husband from the first half of 2009 until the present but is compelled to do so for financial reasons. She testified that she refinanced the home, including putting her husband’s name on the deed, for financial purposes so that she could reduce her monthly mortgage obligation.

With her inconsistent actions and lack of sufficient proof on aspects of her marriage with Mr. Andriotis, plaintiff has not presented clear and convincing evidence of the applicability' of any of the accepted bases for overcoming the presumption that Alexander, conceived and born during plaintiff’s marriage to Mr. Andriotis, was a child bom of that marriage. Plaintiff has not proven to the court what has been happening in her marriage with Mr. Andriotis from 2009 to the present. Thus, it is necessary to sustain the preliminary objection that plaintiff has failed to present a claim against defendant, Mr. Taylor, upon which relief can be granted. This support action is dismissed.


author: HODGE, J.,

text:
    Bank of America, NA v. Little Treasures Learning Center

      Barry A. Rosen, for plaintiff.

      P. Raymond Bartholomew, for defendants.
    February 3, 2011
   HODGE, J.,

Before the court for consideration are preliminary objections filed on behalf of the defendants, Little Treasures Learning Center and Randy L. Pitzer, in response to the amended complaint of plaintiff, Bank of America (hereinafter, “plaintiff’). After hearing argument on defendants’ preliminary objections and consideration of the applicable case law, defendants’ preliminary objections are sustained for the following reasons.

An amended complaint was filed on behalf of the plaintiff on February 10, 2010. The amended complaint only listed Little Treasures Lear[ning Center] as a defendant, but included defendant Randy Pitzer in the caption of the amended complaint. The amended complaint specifically alleged that the plaintiff issued a credit card to the defendant under the terms and conditions proscribed by plaintiff and agreed to by defendant. The amended complaint further states that the defendant used the credit card, and that there is a current outstanding balance of $24,688.47. Plaintiff asserted that the defendant has failed/refused to pay the remaining balance, and claimed damages in the amount of $24,688.47.

Defendants subsequently filed preliminary objections challenging the legal sufficiency of the amended complaint and objecting to the amended complaint being filed in excess of 20 days after defendants served plaintiff with a copy of defendants’ preliminary objections. Oral argument was held on September 27, 2010 before the Honorable Judge J. Craig Cox. Plaintiff did not appear for the scheduled argument, nor did plaintiff file a response or a brief to defendants’ preliminary objections. Consequently, the court sustained defendants’ preliminary objection as to the lack of legal sufficiency of the amended complaint and dismissed defendants’ preliminary objection regarding plaintiff’s untimely filing of the amended complaint. Plaintiff was additionally granted 20 days to file a second amended complaint.

On that same day, September 27, 2010, plaintiff did in fact file a second amended complaint. Defendant responded by filing preliminary objections to the second amended complaint, which again challenged the legal sufficiency of the complaint and asserted that the second amended complaint failed to resolve the objections sustained by the order of court issued by the Honorable Judge Cox. Oral argument was held before this court on defendants’ preliminary objections to the Second amended complaint and the matter is now before the court for a determination.

Each of defendants’ preliminary objections is raised in the nature of a demurrer. Pennsylvania Rules of Civil Procedure, Rule 1028(a)(4) allows for preliminary objections based on legal insufficiency of a pleading. It is well established in Pennsylvania law that a preliminary objection in the nature of a demurrer can be sustained and a complaint dismissed when the complaint is clearly insufficient on its face to establish the pleader’s right to relief. Cooper v. Franford Health Care System, Inc., 960 A.2d 134, 143 (Pa. Super. 2008); See, e.g., Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986); County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985); Cianfrani v. State Employees’ Retirement Board, 505 Pa. 294, 479 A.2d 468 (1984).

In testing the legal sufficiency of a complaint, a court may only look to the pleadings itself, and may not consider testimony or other evidence outside of the complaint. Cooper v. Franford Health Care System, Inc., 960 A.2d 134, 143 (Pa. Super. 2008). However, all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true. Hess v. Fox Rothchild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007); Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa. Super. 2000). “To sustain preliminary objections in the nature of a demurrer, it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.” Harkins v. Zamichieli, 405 A.2d 495, 497 (Pa. Super. 1979), quoting Schott v. Westinghonse Electric Corporation, 436 Pa. 279, 259 A.2d 443, 445 (Pa. 1969). The sustaining of a demurrer results in the denial of a claim or the dismissal of a suit, and should therefore be sustained only in cases that are clear and free from doubt. R. W. v. Manzek, 585 Pa. 335, 888 A.2d 740, 749 (Pa. 2005); Bourke v. Kazara, 746 A.2d 642, 643 (Pa. Super. 2000).

Defendants’ first preliminary objection attacks the legal sufficiency of the cardholder agreement attached to the second amended complaint. As set forth in the order of court dated September 27, 2010, the Honorable Judge Cox found the amended complaint legally insufficient, as it failed to indicate “when the account was opened, whether a signed written application was submitted by the defendants] nor whether Exhibit A, the credit card agreement is the one in effect during the time any purchases by the defendants] were allegedly made.” After a careful review of the second amended complaint, the court finds these legal insufficiencies to still exist.

Rule 1019(i) of the Pennsylvania Rules of Civil Procedure requires that where

a claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing. Pa.R.C.P. No. 1019(i) (emphasis supplied).

Furthermore, the Pennsylvania Superior Court has considered what constitutes sufficient documentation in a credit card collection action in Atlantic Credit and Finance Inc. v. Giuliana, 829 A.2d 340, 345 (Pa. Super. 2003). In Atlantic Credit, plaintiff had purchased accounts owned by GM Card. Plaintiff subsequently filed a complaint alleging that the defendants were indebted to GM Card and now in debt to plaintiff for failure to pay past due accounts on their GM Card. Plaintiff, however, failed to attach any contract or cardholder agreement between GM card and the defendants, or any contract or agreement between GM Card and itself regarding the assignment to the complaint. The Superior Court stated that plaintiff’s “failure to attach the writings which assertedly establish [the creditor’s] right to a judgment...is fatal to the claims set forth in [the creditor’s] complaint.” Atlantic Credit, 829 A.2d at 345.

Likewise in the case sub judice, plaintiff has failed to attach a legible writing which clearly establishes plaintiff’s right to a valid claim against the defendants. As a result, plaintiff’s complaint again fails to repair the legal insufficiencies as previously directed by the Honorable Judge Cox. Thus, defendants’ first preliminary objection based on failure to produce a legible and assignable cardholder agreement is sustained.

Defendants’ second preliminary objection questions the legal sufficiency of the cause of action asserted against defendant Randy L. Pitzer. Defense counsel argues that the second amended complaint fails to set forth any cause of action against this particular defendant, again referencing the order of court dated September 27, 2010, wherein the Honorable Judge Cox found that the amended complaint “fails to mention any alleged liability on [Randy L. Pitzer’s] part.”

Although the plaintiff has included a paragraph listing Randy Pitzer as a defendant in the second amended complaint, the court finds this sole amendment to be a factually generic solution to establishing liability in regards to this specific defendant. Although the plaintiff has attached a summaiy of monthly billing statements, as Exhibit B, wherein credit card charges and personal cash advances are listed, the second amended complaint fails to set forth with specificity the necessaiy averments to hold Randy Pitzer responsible for any specific portion of the debt.

Although plaintiff argues that specific portions of Exhibit B show debt incurred by defendant Randy Pitzer such as a personal cash advance in the amount of $14,000, the second amended complaint fails to reference this fact and attach any particular liability to defendant Randy Pitzer. In fact, the second amended complaint fails to distinguish in any part whether the allegations are referencing any particular defendant leaving the court to guess who the claim is being asserted upon and well beyond any reasonable inferences which may be granted by the court. Neither allegations without proof nor proof without allegations, (nor allegations and proof which do not substantially correspond) will entitle plaintiff to relief unless the defect be remedied by an amendment. Kirshon v. Friedman, 349 Pa. 171, 174, 36 A.2d 647, 649 (1944).

Defendants’ second preliminary objection is therefore sustained. The court will enter the attached order in accordance with this opinion dismissing plaintiff’s second amended complaint with prejudice.

ORDER OF COURT

And now, February 3, 2011, the court having heard argument on preliminary objections filed on behalf of the defendants, Little Treasures Learning Center and Randy L. Pitzer, and with Tom Michael, Esquire, appearing on behalf of the plaintiff, Bank of America, NA, and with P. Raymond Bartholmew, Esquire, appearing on behalf of the defendants, and the court having given consideration to the arguments presented by counsel as well as any briefs submitted by the parties and in accordance with the attached opinion, it is hereby ordered and decreed as follows:

1. The preliminary obj ection in the nature of a demurrer as to the lack of legal sufficiency for failure to attach a clear and legible cardholder agreement issued by the plaintiff to the defendant/s is hereby sustained, as no indication is made as to when the account was opened, whether a signed written application was submitted by the defendant/s nor whether Exhibit A, the Credit Card Agreement, is the one in effect during the time any purchases by the defendant/s were allegedly made.
2. The preliminary objection in the nature of lack of legal sufficiency regarding the defendant Randy L. Pitzer is sustained, as the second amended complaint failed to set forth any cause of action against Randy L. Pitzer.
3.Plaintiff’s second amended complaint is therefore dismissed with prejudice.
4. The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record for the parties.


author: MOTTO, P.J.,

text:
    New Castle Sch. of Trades v. Kapchus

      Richard A. Harper, for plaintiff.

      Bradley G. Olson, for defendant.
    February 8, 2011
   MOTTO, P.J.,

Before the court for disposition is the petition for reinstatement of appeal filed by defendant/petitioner Joseph Kapchus. Mr. Kapchus requests that this court reinstate his appeal from the decision of a magisterial district judge (“district magistrate”), pursuant to Rule 1006 of the Pennsylvania Rules of Civil Procedure for Magisterial District Judges (“Pa.R.C.P.M.D.J.”). Mr. Kapchus argues that Rule 1006 gives this court discretion to reinstate an appeal from an adjudication by a district magistrate where good cause is shown for failure to timely file proof of service of rule to file complaint, which constituted the basis for plaintiff/respondent New Castle School of Trade’s praecipe to strike appeal. The procedural history of this is as follows.

On August 5, 2010, Magisterial District Judge Scott McGrath entered a judgment for respondent New Castle School of Trades (“School of Trades”) in the amount of $2,060.14 and assessed judgment costs against Mr. Kapchus in the amount of $110.00. Mr. Kapchus then filed with the prothonotary both a notice of appeal from magisterial district judge judgment and a praecipe to enter rule to file complaint on August 25, 2010 in compliance with the 30-day limitation found in Pa.R.C.P.M.D.J. 1002A. On October 4,2010, the School of Trades entered a praecipe to strike appeal, alleging that Mr. Kapchus failed to comply with Pa.R.C.P.M.D.J. 1005B by failing to file proof of service of the rule to file complaint on the School of Trades within ten days after filing the notice of appeal. The prothonotary subsequently entered a rule to strike appeal. Mr. Kapchus then filed a petition to reinstate appeal on October 12, 2010, and a hearing on the petition was held January 12, 2011.

Both parties agree that the proof of service had not been timely filed. It remains unfilled because the praecipe to strike had already been entered when petitioner Kapchus and his counsel, Bradley G. Olson, became aware of the proof of service error. Respondent School of Trades alleges that it was never served with a notice of appeal, but such an allegation was not made in the School of Trade’s praecipe to strike appeal, which stated only that petitioner Kapchus “failed to comply with Rule 1005B in that no proof of service of the rule to file complaint on the appellee was filed within ten (10) days after the filing of the notice of appeal.” Petitioner Kapchus asserts that the error resulted in a technical violation only and did not prejudice the School of Trades. Attorney Olson argues that failure to reinstate the appeal would be prejudicial to Mr. Kapchus.

Respondent School of Trades argues that this court does not have discretion to reinstate Mr. Kapchus’ appeal. The School of Trades asserts that while petitioner Kapchus’ violation of rule 1005B by failing to file proof of service may have been a technical violation that did not prejudice the respondent, such a technical violation is jurisdictional and therefore cannot be waived, even for good cause shown. Thus, this court must first determine whether it has discretion to reinstate an appeal from the decision of a magisterial district judge where the appellant/petitioner has violated rule .1005B. If this court does have discretion, it will then evaluate whether petitioner Kapchus’ violation of rule 1005B was for good cause shown pursuant to rule 1006, such that reinstatement of Mr. Kapchus’ appeal would be within the sound discretion of the court.

Rule 1005B of the Pa.R.C.P.M.D.J. provides the following:

The appellant shall file with the prothonotary proof of service of copies of his notice of appeal, and proof of service of a rule upon the appellee to file a complaint if required to request such a rule by Rule 1004B, within ten (10) days after filing the notice of appeal.

In the instant case, proof of service was not filed by appellant/petitioner Kapchus within ten days after filing the notice of appeal. The record indicates that the notice of appeal and praecipe to enter rule to file complaint was timely filed on August 25,2010, within 30 days of district Judge McGrath’s decision on August 5, 2010, as required by rule 1002A. As the defendant in the proceeding before the district magistrate, petitioner Kapchus was required to enter a praecipe to enter rule of course on the appellant/respondent. Pa.R.C.P.M.DJ. 1004B. Pursuant to rule 1005B, Mr. Kapchus should have filed proof of service within ten days after August 25, 2010. However, proof of service was not filed within ten days of that date and has remained unfiled. This violation prompted respondent School of Trades to file its praecipe to strike appeal pursuant to Pa.R.C.P.M.D.J. 1006, which provides that:

Upon failure of the appellant to comply with rule 1004A or rule 1005B, the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record. The court of common pleas may reinstate the appeal upon good cause shown.

In the instant case, the prothonotary struck the appeal upon praecipe of the School of Trades, which led to petitioner Kapchus’ petition to reinstate appeal.

Rule 1006 expressly provides that “[t]he court of common pleas may reinstate the appeal upon good cause shown.” The plain meaning of this language in rule 1006 confers upon courts of common pleas the authority to exercise their discretion in determining whether to reinstate an appeal from the decision of a district magistrate for good cause shown for a violation of rule 1005B. Case law supports this reading of rule 1006. The Superior Court has interpreted rule 1006 to give courts of common pleas “a discretionary remedy if a party fails to comply with Rule 1005B.” Howland, Hess, Gninan & Torpey v. Perzel, 667 A.2d 1163, 1164 (Pa. Super. 1995). See also Slaughter v. Allied Heating, 636 A.2d 1121, 1123 (Pa. Super. 1993) (interpreting Rule 1006 to grant the trial court authority reinstate a stricken appeal for good cause shown). The Superior Court has also held that “the determination of whether a good cause has been demonstrated is trusted to the trial court’s sound discretion.” Anderson v. Centenniel Homes, Inc. 594 A.2d 737, 739 (Pa. Super. 1991). Thus, as a court of common pleas, this court has discretion to reinstate Mr. Kapchus’ appeal if it finds that Mr. Kapchus made a showing of good cause for violating rule 1005B.

Rule 1006 does not provide a definition of “good cause.” The sole comment to the rule relates only to the rule’s intent, which is to “provide sanctions for failing to act within the time limits prescribed” by rule 1004A or rule 1005B. Pa.R.C.P.M.D.J. 1006, note. The trial court is not required to ignore procedural noncompliance, but it may do so at its discretion when good cause is shown. Anderson, 594 A.2d at 740.

In order to show good cause, an appellant must provide a “legally sufficient reason for reinstating the appeal.” Howland, 667 A.2d at 1164. What constitutes a “legally sufficient reason” for reinstatement is not defined, but where the opposing party has had notice of the appeal even though proof of service was not timely filed, good cause for reinstatement has been found. See e.g. Quarato v. Facelifters Ltd., 451 A.2d 777 (Pa. Super. 1982). The Superior Court has identified also some reasons that are insufficient for a finding of good cause: A general allegation of “inadvertent error” as the basis for a 1005B violation is insufficient for establishing good cause. Slaughter, 636 A.2d at 1124, and claiming that the violation “did not substantially affect the rights of the [adverse party]” is not a sufficient reason on its own. Anderson at 740.

Additionally, the Superior Court has provided that a rule 1005B violation should be considered in light of the purpose of rule 1005B, which is to prevent parties receiving an adverse decision from delaying a case by failing to provide notification to the opposing party. Slaughter at 1124. Because the notice of appeal acts as a supersedeas, rale 1006 also seeks to prevent the appealing party from interfering with the opposing party’s execution of a favorable judgment. Id.

In this case, respondent School of Trades filed a praecipe to strike appeal, which suggests that it had actual knowledge of the appeal. The School of Trades did not assert in its praecipe to strike that it was not served with the appeal. Even though proof of service had not been timely filed, the School of Trades appears to have had notice that the petitioner’s appeal had been filed.

As evidence of good cause for the violation, petitioner Kapchus provides in his petition to reinstate appeal that at the time the notice of appeal had been filed, attorney Olson was preparing for a trial and was on notice of a significant trial the following month. Attorney Olson had also been undergoing staffing changes at his office and, while he believed that proof of service had been filed, he did not follow up to ensure that it had been filed. Petitioner Kapchus’ proffered reasons are more specific than statements of “inadvertent error.” Contra. Slaughter at 1124.

Petitioner Kapchus argues that respondent school of trades has not been affected by the violation. However, Mr. Kapchus does not rely solely on that assertion. Contra. Anderson at 740. Petitioner Kapchus’ use of the lack of prejudice to the respondent seems to support his assertion that the violation was technical only and did not prejudice the respondent. The respondent did not raise any evidence of resulting prejudice and did not address whether, due to failure to file proof of service, it had been prevented from executing the favorable judgment it received.

Trial preparation and staffing changes seem to this court to be legitimate rather than dilatory reasons for failing to meet the ten day filing requirement of rule 1005B, and this court is inclined to view them as legally sufficient reasons in light of the relevant rules and precedent herein discussed. Denying reinstatement of the petitioner’s appeal would not serve the purpose of rule 1005B since, based on the evidence presented, the petitioner was not intentionally dilatory and did not seek to impede the respondent’s execution on its favorable judgment from the district magistrate. The court recognizes that failure to reinstate the appeal which was stricken for errors on the part of petitioner’s counsel may cause prejudice to the petitioner in this case.

For the foregoing reasons, the court finds that it has discretion under rule 1006 to reinstate an appeal from the judgment of a district magistrate and further finds that the petitioner offered a sufficiently legal reason for his violation of rule 1005B, thereby establishing good cause for reinstatement of his appeal pursuant to rule 1006. Therefore, the court grants the petitioner’s petition for reinstatement of appeal.

ORDER OF COURT

And now, February 8, 2011, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that defendant’s petition to reinstate appeal is granted and defendant’s appeal is reinstated. Defendant shall fully comply with Pa.R.C.P.M.D. J. 1005 within ten (10) days of the date this order is docketed.