author: HERRON, J.,

text:
    Floyd v. Clearfield

      Alan M. White for plaintiffs.
    October 8, 2001
   HERRON, J.,

This opinion addresses the motion of plaintiffs Gale Floyd and Luz Ortiz to certify a class of homeowners who paid defendants Jules Clearfield and/or First Clearfield Fund Inc. a mortgage broker fee between February 21, 1995 and February 21, 2001. Because the plaintiffs’ claims cannot be resolved fairly and efficiently by a class action and do not present predominating common questions of fact and law, the motion is denied.

FINDINGS OF FACT

(1) Plaintiff Gale Floyd is an individual residing at 2513 North 19th Street, Philadelphia, Pennsylvania. Complaint at ¶1.

(2) Plaintiff Luz Ortiz is an individual residing at 5460 North Warnock Street, Philadelphia, Pennsylvania. Complaint at ¶2.

(3) Defendant Jules Clearfield is a loan broker with a place of business at 1801 JFK Boulevard, Philadelphia, Pennsylvania. Complaint at ¶¶3, 5.

(4) Defendant First Clearfield Fund Inc. is a Pennsylvania corporation with a place of business at 1801 JFK Boulevard, Philadelphia, Pennsylvania. Complaint atf4. Clearfield operates his loan brokerage business through the Fund. Id. at ¶5.

(5) Prior to October 1996, Floyd had two mortgages on her home. The first mortgage had an interest rate of less than 10 percent and monthly payments of $143, and the second mortgage had an interest rate of less than 10 percent and monthly payments of $189. Complaint at ¶15.

(6) In 1996, Floyd decided to convert the oil heater in her home to gas. Complaint at ¶7. Bryant Plumbing, a home improvement contractor, offered to install the gas heater for $2,500 and to obtain financing for its work. Id. Floyd told Bryant that she intended to pay $1,000 in cash and to finance the $1,500 balance. Id.

(7) Without informing Floyd, Bryant contacted Clearfield and asked him to obtain financing for the work at Floyd’s home. Complaint at ¶8.

(8) According to the complaint, the defendants and United Companies Lending Corporation, a subprime mortgage lender, had an agreement pursuant to which the defendants would submit mortgage loan applications to United. Complaint at ¶11. United would then include a broker’s fee specified by the defendants in the disbursements from any loan granted to the borrower. Id.

(9) Clearfield prepared a written loan application, purportedly on Floyd’s behalf, and transmitted it to United. Complaint at ¶8. The application set forth the value of Floyd’s contract with Bryant, a credit report and an alleged request from Floyd for a $1,400 loan for home improvements. Id.

(10) The terms and amount of the loan requested in the application were substantially different from those desired by Floyd. Complaint at ¶14.

(11) In the course of his contacts with United, Clear-field represented that he was Floyd’s agent. Complaint at^O.

(12) At no time prior to his submitting the application did Clearfield have any contact with Floyd, obtain her permission to represent her or provide her with any written broker agreement or notice of her right to cancel such agreement. Complaint at ¶9.

(13) Floyd’s loan with United closed on October 28, 1996. Complaint at ¶12. Floyd’s loan, which refinanced the mortgages and included the home improvements loan, had an interest rate of 12 percent (15 percent annual percentage rate), required monthly payments of $403 for 15 years and charged lender fees, broker fees and credit insurance premiums in excess of $7,000. Id. at ¶15.

(14) Floyd’s loan required monthly payments of nearly half of her monthly income and included $2,429.62 for credit life insurance for 15 years, something Floyd neither requested nor wanted. Complaint at ¶16. The broker’s fee amounted to nearly 90 percent of the amount she sought to finance, and her total payments over 30 years were increased by more than $12,000 over the mortgages’ payments. Id. The complaint asserts that these conditions made Floyd’s loan unsuitable for her. Id.

(15) Neither defendant provided Floyd with notice of her three-day right to cancel any broker’s agreement with the defendants or notified Floyd that she would be charged a 5 percent broker’s fee. Complaint at ¶12.

(16) In July 1998, Ortiz hired Robert Krevolin Builders Inc. to do some work on her home. Complaint at^9. The agreement to do this work was conditioned on finding financing. Id.

(17) Ortiz is a low-income, unsophisticated consumer who had never participated in a consumer loan transaction prior to July 1998. Complaint at ¶35. Accordingly, Ortiz provided Krevolin with information regarding her income and liabilities. Id. at^9. Krevolin, in turn, contacted Clearfield, with whom it maintained a close business relationship. Id. at ¶20.

(18) The defendants had an agreement with Equicredit Corp. under which the plaintiffs would submit home equity loan applications and would be paid a broker’s fee from the loan disbursements. Complaint at ¶30.

(19) On July 13,1998, the defendants sent Ortiz a letter advising her that they had obtained a “commitment approval” for a fixed rate, 15-year loan at 9.4 percent interest (July loan) with Equicredit. Complaint at ¶21. According to the terms of Ortiz’ loan, she would be provided with $30,900, itemized as $28,000 for Krevolin and $2,900 for cash for Ortiz, and would repay the loan in monthly payments of $374. Id.

(20) Enclosed with the letter describing July loan was a form authorizing payment of a fee of “10 percent of the amount financed” on a loan of $36,000 to the Fund. Complaint at ¶22.

(21) When Ortiz did not respond to the July 13, 1998 letter due to concerns that she could not afford the July loan, Krevolin and Clearfield repeatedly called her and encouraged her to agree to the July loan. Complaint at ¶¶23-24. Sometime in the fall or winter of 1998, Ortiz received a visit from Michael Borso, a loan officer with a lender named Sterling Lending Corp. Id. at^25. Borso had received Ortiz’ name from Clearfield, with whom he had a long-standing business relationship. Id.

(22) Ortiz eventually agreed to go ahead with the July loan, and the parties conducted a settlement on December 16, 1998. Complaint at ¶26. Sterling then assigned the December loan to Equicredit. Id. at ¶28.

(23) The loan covered by the settlement on December 16,1998 (December loan) differed from the July loan in a number of ways. Complaint a^27. The December loan required monthly payments of $384 and had a term of 20 years, a principal of $36,000 and an annual percentage rate of 14.38 percent. Id. In addition, included in the December loan were more than 17 points in fees, consisting in part of a $2,470.75 fee for the Fund and a $2,830.75 “loan origination fee” for Sterling, the lender. Id. Only $24,500 of the December loan proceeds were made available for home improvements, and Ortiz received only $73 in cash, as opposed to the $2,900 she was promised. Id.

(24) At all times, the defendants represented to Equicredit and Sterling that they were Ortiz’ agent. Complaint at ¶29.

(25) At no time prior to the closing on the December loan did the defendants disclose to Ortiz either the differences from the July loan or the fact that the defendants would receive a fee amounting to 11.5 percent of the December loan. Complaint at ¶31. No copies of any written authorizations Ortiz signed were provided to her. Id. In addition, neither defendant provided Ortiz with notice of her three-day right to cancel any broker’s agreement with the defendants. Id. at ¶32.

(26) Ortiz began making payments on the December loan in January 1999, but Krevolin did not start work on her home until April 1999 and still has not completed the work agreed to. Complaint at ¶34.

(27) In the complaint, the plaintiffs assert four causes of action: fraud/breach of fiduciary duty; violations of Pennsylvania’s Unfair Trade Practices Consumer Protection Law; absence of a valid broker’s agreement; and violations of Pennsylvania’s Credit Services Act (CSA). Complaint at ¶¶37-49.

(28) In the motion, the plaintiffs seek certification of the following class:

“All homeowners who paid defendant Jules Clearfield and/or First Clearfield Fund Inc., a mortgage broker fee in the six-year period ending with the filing date of the instant action (February 21,1995-February 21,2001).” Motion at introduction.

(29) The Pennsylvania Attorney General has filed an action titled Commonwealth of Pennsylvania v. First Clearfield Fund in the Federal Court for the Middle District of Pennsylvania. Motion exhibit E. Although this action presents claims against both defendants for violations of the UTPCPL and breach of fiduciary duty, it does not address the specific types of UTPCPL violations that the plaintiffs allege in the complaint. Id.

(30) The defendants have failed to enter an appearance in this matter and have not filed a response to the motion.

DISCUSSION

The court finds the allegations in the complaint to be disturbing, to say the least. In essence, the defendants are accused of embarking on a scheme by which they have defrauded unsophisticated parties and bilked them out of hundreds of thousands of dollars. This conduct is reprehensible, and the defendants’ failure to enter an appearance in this matter, let alone to submit any filings, no doubt has added to the plaintiffs’ fury.

A motion for class certification, however, addresses not the substance of a plaintiff’s claims but rather the procedure by which those claims should be addressed. This requires that the court focus on the factors set forth in the Pennsylvania Rules of Civil Procedure, not the defendants’ specific behavior and legal violations, as alleged in the complaint. An examination of these factors reveals that this matter is not appropriate for resolution as a class action and that the motion must be denied.

The purpose behind allowing class action suits is “to provide a means by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 397, 676 A.2d 1237, 1239 (1996) (citing Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 231, 348 A.2d 734, 737 (1975)). See also, Lilian v. Commonwealth, 467 Pa. 15, 21, 354 A.2d 250, 253 (1976) (“The class action in Pennsylvania is a procedural device designed to promote efficiency and fairness in the handling of large numbers of similar claims”). For a suit to proceed as class action, Pa.R.C.P. 1702 requires that five criteria be met:

“(1) the class is so numerous that joinder of all members is impracticable;
“(2) there are questions of law or fact common to the class;
“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.” Pa.R.C.P. 1702.

The burden of proving each of these elements is initially on the moving party, although this burden “is not heavy and is thus consistent with the policy that ‘decisions in favor of maintaining a class action should be liberally made.’ ” Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985) (citing Bell v. Beneficial Consumer Discount Co., 241 Pa. Super. 192, 205, 360 A.2d 681, 688 (1976)). Once the moving party has established that each of the elements is satisfied, “the class opponent shoulders the burden, which has shifted, of coming forward with contrary evidence challenging the prima facie case.” D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 449-50, 500 A.2d 1137, 1141 (1985).

In the instant case, the court is most concerned with the plaintiffs’ ability to satisfy the second and fifth prongs. Specifically, the court is unconvinced that the complaint presents questions of fact and law that are common to the class and that a class action is a fair and efficient method to address the plaintiffs’ grievances.

A sustainable class action requires a plaintiff to show commonality of issues:

“The common question of fact means precisely that the facts must be substantially the same so that proof as to one claimant would be proof as to all. This is what gives the class action its legal viability. If... each question of disputed fact has a different origin, a different manner of proof and to which there are different defenses, we cannot consider them to be common questions of fact within the meaning of Pa.R.CP. 1702.” Allegheny County Housing Auth. v. Berry, 338 Pa. Super. 338, 342, 487 A.2d 995, 997 (1985). See also, D’Amelio, 347 Pa. Super. at 452, 500 A.2d at 1142 (“[w]hile the existence of individual questions is not necessarily fatal, it is essential that there be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding”).

A court must also determine that a class action would constitute a fair and efficient method of resolving the issues in dispute, a conclusion that presupposes finding that “common questions of law or fact predominate over any question affecting only individual members.” Pa.R.C.P. 1708.

The plaintiffs contend that they have satisfied both the commonality and the fairness and efficiency requirements and point to paragraph 36(b) of the complaint, which lists numerous allegedly common questions of law and fact:

• Whether the advertising, form contract and standardized business practices employed by the defendants violate the UTPCPL;

• Whether the defendants constitute a “credit services organization” within the meaning of the Pennsylvania Credit Services Act;

• Whether the defendants’ conduct violated the CSA;

• Whether the defendants failed to give consumers information required by the Pennsylvania CSA;

• Whether the defendants’ advertising and sales practices accurately represent the services they provide;

• Whether the defendants’ failure to have class members negotiate and execute a valid, written contract for broker services, specifying a loan amount, interest rate and broker’s fee prior to rendering any services is an unfair and deceptive practice;

• Whether the defendants violated the UTPCPL by failing to provide a written contract and notice of cancellation rights;

• Whether the defendants had a fiduciary duty to disclose all important credit terms to members of the class;

• Whether the defendants violated the UTPCPL by providing loans at rates, terms and overall costs different from those agreed to; and

• Whether the defendants have engaged in an intentional scheme to defraud vulnerable consumers. Complaint at ¶36(3)).

As noted by several Pennsylvania appellate court decisions, a private UTPCPL plaintiff, whose right to act arises under UTPCPL section 9.2, must show that he or she was damaged as a result of a defendant’s unlawful act. Weinberg v. Sun Co., 565 Pa. 612, 618, 777 A.2d 442, 446 (2001) (section 9.2 “clearly requires, in a private action, that a plaintiff suffer an ascertainable loss as a result of the defendant’s prohibited action”). This requires a private plaintiff to show “a causal connection between the unlawful practice and a plaintiff’s loss.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 402, 676 A.2d 1237, 1241 (1996).

Because reliance is an integral element of a fraud claim, it has been stated that “fraud is an inappropriate vehicle upon which to predicate a class action.” Cf. Prime Meats Inc. v. Yochim, 422 Pa. Super. 460, 471, 619 A.2d 769, 774 (1993). Similarly, the Pennsylvania Supreme Court recently remarked that the causation requirement found in all private UTPCPL actions presented “questions of fact applicable to each individual private plaintiff’ that would be “numerous and extensive.” Weinberg, 565 Pa. at 618, 777 A.2d at 446. The same is true in this case. Here, the plaintiffs would have the burden of establishing that the damage suffered by each member of the class was caused by the defendants’ improper conduct. This would require reviewing the reasons of each class member for entering into the transaction. Such an undertaking would involve a painstaking survey of each class member’s transaction, each of which appears to have taken place under different circumstances, and belies the argument that common questions exist and predominate over individual questions.

The plaintiffs attempt to skirt this issue by arguing that an agency and/or fiduciary relationship between the class members and the defendant was created, thus establishing a presumption of reliance and eliminating the need for the plaintiffs to prove a causal relationship on an individual level. See Basile v. H & R Block Inc., 729 A.2d 574, 584 (Pa. Super. 1999), rev ’d on other grounds, 563 Pa. 359, 761 A.2d 1115 (2000) (citing Young v. Kaye, 443 Pa. 335, 342, 279 A.2d 759, 763 (1971), for the principle that, “where fiduciary duty is established, general rule requiring affirmative showing of fraud is inapplicable”). To establish an agency relationship, a party must show “the manifestation by the principal that the agent shall act for him, the agent’s acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking.” Basile v. H & R Block Inc., 563 Pa. 359, 367, 761 A.2d 1115, 1120 (2000). Proof of an agency relationship may be made in the following manner:

“The existence of an agency relationship is a question of fact____The party asserting the existence of an agency relationship bears the burden of proving it by a fair preponderance of the evidence____‘In establishing agency, one need not furnish direct proof of specific authority, provided it can be inferred from the facts that at least an implied intention to create the relationship of principal and agent existed.’... However, we do not assume agency by a mere showing that one person does an act for another.” B & L Asphalt Industries Inc. v. Fusco, 753 A.2d 264, 269 (Pa. Super. 2000). (citations omitted)

Proving that an agency relationship existed between the class members and the defendants presents the same individual questions found in proving causation. While a common scheme or standard form could provide the basis for finding an agency relationship on a classwide scale, the complaint alleges neither of these. Indeed, it appears that the factual scenarios presented by each of the two plaintiffs are distinguishable: Floyd had little, if any, contact with the defendants prior to securing her loan, while Ortiz had several communications with the defendants before she agreed to the December loan. This precludes using an alleged agency relationship to infer causation.

The same problem exists with the plaintiffs’ argument that a confidential relationship was formed between the defendants and members of the class, giving rise to a fiduciary duty. A confidential relationship may be established under the following circumstances:

“Our Supreme Court has acknowledged that the concept of a confidential relationship cannot be reduced to a catalogue of specific circumstances, invariably falling to the left or right of a definitional line. The court has recognized, nonetheless, that the essence of such a relationship is trust and reliance on one side, and a corresponding opportunity to abuse that trust for personal gain on the other. Accordingly, a confidential relationship appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed....
“The possibility of a confidential relationship cannot be excluded by a concrete rule. So long as the requisite disparity is established between the parties’ positions in the relationship, and the inferior party places primary trust in the other’s counsel, a confidential relationship may be established.” Basile v. H & R Block Inc., 777 A.2d 95, 101-102 (Pa. Super. 2001). (citations, brackets and quotation marks omitted) (emphasis added)

As with an agency relationship, a confidential relationship with the defendants cannot easily be established for the class as a whole. Rather, the plaintiffs would have to show a disparity between the defendants’ position and the position of each class member, as well as the weight each class member gave to the defendants’ advice. This raises individual questions and precludes the court from addressing the confidential relationship en masse. As a result, the difficulties presented by the individual questions of fact outweigh any benefit that could be achieved by resolving this case as a class action, and the motion must be denied.

CONCLUSIONS OF LAW

(1) The class action will not provide a fair and efficient method for adjudicating this controversy.

(2) Common questions of law or fact do not predominate over any question affecting only individual members.

(3) The claims raised by the representative party are not typical of the claims belonging to, and necessary for, the protection of absent class members.

(4) The court need not determine whether the proposed class representative will fairly and adequately assert and protect the interests of the class.

(5) The court need not determine whether the class is sufficiently numerous that joinder of all its members is impracticable.

For these reasons, this court determines that the instant case is not appropriate for disposition as a class action.

ORDER

And now, October 8, 2001, upon consideration of plaintiffs Gale Floyd and Luz Ortiz’ motion for class certification, oral argument before the court and all other matters of record, and in accord with the opinion being filed contemporaneously with this order, it is hereby ordered and decreed that the motion is denied.

      . Floyd already had a $9,000 life insurance policy through her employer. Complaint at ¶16.

      . 73 Pa.C.S. §§201-1—201-9.3.

      . 73 Pa.C.S. §§2181-2192.

      . The class proposed by the plaintiffs is referred to as the “class.”

      . It has been noted that “the requirements for class certification are closely interrelated and overlapping, . . . .” Janicik v. Prudential Insurance Co., 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982).

      . Pennsylvania Rule of Civil Procedure 1708 requires a court to look at the following whether evaluating whether a class action is a fair and efficient method of adjudication:
      “(1) whether common questions of law or fact predominate over any question affecting only individual members;

        “(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
      “(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
      “(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
      “(ii) adjudications with respect to individual members of the class which would, as a practical matter, be dispositive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
      “(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
      “(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
      “(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
      “(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.” Pa.R.C.P. 1708(a).

      . In its entirety, UTPCPL section 9.2(a) reads as follows:
      “(a) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this Act, may bring a private action to recover actual damages or $100, whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than $100, and may provide such additional relief as it deems necessary or proper. The court may award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees.” 73 Pa.C.S. §201-9.2.

      . The private right of action under the CSA arises from the Act’s characterization of CSA violations as UTPCPL violations. 73 Pa.C.S. §2190. This transforms the plaintiffs’ CSA claim into a UTPCPL claim and subjects it to the same causation requirements as any other UTPCPL claim.

      . This also undercuts the plaintiffs’ argument that their claims are typical of those of the class.

      . While the court sympathizes with the plaintiffs, it does not change the fact that this action is not appropriate for certification. We can only note that a UTPCPL claim brought by the Pennsylvania Attorney General’s office is not subject to the same causation requirements as a private cause of action and suggest that they pursue other avenues that may be available to them.


source: Caselaw Access Project

author: BALDWIN, J.,

license: Public Domain

text:
    Proctor v. Port Authority of Allegheny County

      C.P. of Allegheny County,
    no. GD98-11083.

      Walter J. Nalducci, for plaintiff.

      Colin Meneely and Terrence R. Henne, for defendant.
    October 29, 2001
   BALDWIN, J.,

Plaintiff David Proctor appeals from this court’s order of August 27, 2001, granting the motion for summary judgment filed by defendant, the Port Authority of Allegheny County. Plaintiff timely filed a notice of appeal, and a docketing statement with this court in the above captioned case. The crux of this appeal is whether or not the defendant is immune from suit according to law.

In his docketing statement, plaintiff argues that this court committed either an error of law or an abuse of discretion by finding that the facts of this case, as alleged in his complaint, do not fall under the real estate exception of the Sovereign Immunity Act, title 42 Pa.C.S. §8522(b)(4), under the circumstances presented herein. Subsection (b)(4) of this Act provides, as follows:

“(b) Acts which may impose liability. The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:
“(4) Commonwealth real estate, highways and sidewalks. A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).” 42 Pa.C.S. §8522(b)(4) (West 2001).

Plaintiff filed a concise statement of matters complained of on appeal pursuant to Appellate Rule 1925(b). In his statement of matters complained of, plaintiff contends that this court erred by granting defendant’s motion for summary judgment in finding that the instant facts do not fall under the real estate exception to Sovereign Immunity Act as that exception has been set forth in 42 Pa.C.S. §8522(b)(4).

As relayed in the statement, plaintiff is a City of Pittsburgh police officer. On or about July 31, 1996, he was physically injured, while on duty, when his motorcycle slid out from underneath him as it crossed over a diesel fuel spill purportedly caused by a Port Authority Transit (PAT) bus traveling on defendant’s property known as the Martin Luther King bus way. In addition to these stipulated facts of record, the parties agree that PAT owns and operates this particular bus way, and is charged with its reasonable maintenance, repair and upkeep.

Plaintiff has not pleaded any facts as to the defendant’s knowledge of this condition. In its answer and new matter (¶¶10, 11, and 12), the defendant denies that it had notice as to the diesel fuel spill prior to this accident.

Plaintiff further alleges that PAT acted negligently in creating the diesel fuel spill on the surface of the roadway, and by failing to remedy this dangerous condition. (See complaint a^6.) Plaintiff, though, sets forth no factual allegations concerning the requisite notice of this condition of the land, nor does he plead his own inability to realize this danger and/or to avoid it with any degree of specificity.

In the alternative, plaintiff alludes to the codified motor vehicle exception of the sovereign immunity doctrine, 42 Pa.C.S. §8522(b)(l). (Plaintiff’s brief in opposition to defendant’s motion for summary judgment atpp. 8-9.) According to plaintiff, this artificial or man-made condition on, or of, the land constitutes a dangerous condition.

Plaintiff next alleges that his physical injuries were sustained as a direct and proximate result of the motorcycle accident, which was precipitated by the defendant’s exclusive negligence in creating this alleged dangerous condition of, or on, the land. (See complaint at ¶¶6-7.) Finally, plaintiff distinguishes for this court PAT’s affirmative acts and omissions from those of other potential, yet disinterested third parties, presumably, on the basis of interpretive case law in support of his position. (See plaintiff’s brief in opposition to defendant’s motion for summary judgment at pp. 5-8.)

Defendant, on the other hand, specifically denies that it was negligent here in any manner. Defendant contends that despite the plaintiff’s arguments to the contrary, it is immune from suit because the underlying facts of this action do not fall within the real estate exception under section 8522(b)(4). Additionally, defendant asserts the motor vehicle exception, noted above, is inapposite too. Defendant, thus, submits to this court that it is entitled to summary judgment in this case.

On April 26,2001, the above captioned case was submitted to a board of arbitrators for resolution on the merits. The plaintiff obtained a money judgment for $15,000 against the defendant. The board of arbitrators concluded that the evidence adduced at the hearing established that PAT’s negligence was a substantial factor (the legal cause) in contributing to Proctor’s injuries.

Defendant appealed the decision of the board of arbitrators to this court. Defendant next filed a motion for summary judgment. Defendant argued for this relief on the basis of the doctrine of sovereign immunity. The parties submitted briefs on the legal question at issue and this court heard the parties’ oral arguments on August 27,2001. This court granted the defendant’s motion. This appeal followed.

The relevant standard of review for a summary judgment is well settled under Pennsylvania law. Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, in relevant part, states that:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) If, after the completion of discovery relevant to the motion, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issue to be submitted to the jury.” Pa.R.C.P. 1035.2(1) and (2).

Applying these standards to the present case, this court concludes that the plaintiff has failed to produce sufficient evidence of material facts essential to support his negligence-based claim. As such, there are no genuine issues of material fact with respect to the plaintiff’s claim to be submitted to a jury pertaining to the real estate exception of the Sovereign Immunity Act. The defendant is, therefore, entitled to summary judgment as a matter of law.

The applicable rule of law mandates that summary judgment is appropriate in a case, as here, that is free and clear from all doubt. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339 (2000); Baesel v. New Boulevard Baking Co., 410 Pa. Super. 591, 593-94, 600 A.2d 610, 612 (1991); Rybas v. Wapner, 311 Pa. Super. 50, 54, 457 A.2d 108, 109 (1983). In ruling on a motion for a summary judgment, as here, the court must view the entire record in the light most favorable to the non-moving party, and accept as true all well-pleaded facts and all reasonable inferences to be drawn therefrom. First Philson Bank v. Hartford Fire Insurance Co., 727 A.2d 584, 587 (Pa. Super. 1999); Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992).

Any doubt as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party. Lititz Mutual Insurance Co. v. Steely, 146 A.2d 607, 609 (Pa. Super. 1999); Chorba v. Davlisa Enterprises Inc., 303 Pa. Super. 497, 500, 450 A.2d 36, 38 (1982). Applying these established standards to the present facts, this court concludes as a matter of law that the defendant is entitled to a summary judgment.

Plaintiff argues that this court committed an error of law or abused its discretion by finding that the salient facts of this case, as alleged in his complaint, do not fall under the real estate exception of the Sovereign Immunity Act. This court disagrees.

Pennsylvania law clearly requires that in all negligence actions the plaintiff must sufficiently establish that the defendant was charged with an ascertainable duty of care, that the defendant failed to reasonably exercise that duty in some manner, and that the plaintiff was harmed as a direct result of the defendant’s negligence. Hamil v. Bashline, 481 Pa. 256, 266, 392 A.2d 1280, 1286 (1978). As stated, the plaintiff bears the burden of proof with respect to each of these required elements. Hamil, 481 Pa. at 266, 392 A.2d at 1286; Schmoyer v. Mexico Forge Inc., 437 Pa. Super. 159, 163, 649 A.2d 705, 707 (1994) (The trial court has the duty to resolve all questions pertaining to the sufficiency of the evidence). Any questions as to the sufficiency of the evidence lie within the sound discretion of the trial court. Schmoyer, 437 Pa. Super, at 163-64, 649 A.2d at 707.

The Restatement (Second) of Torts, section 342, provides that:

“A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if:
“(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
“(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
“(c) the licensees do not know or have reason to know of the condition and the risk involved.” (emphasis added) Compare, Peair v. Home Association of Enola Legion No. 751, 287 Pa. Super. 400, 406, 430 A.2d 665, 668 (1981) (A pedestrian walking on a public sidewalk is a licensee of the property owner).

Under Pennsylvania law, it is clear that all property owners have a duty of care to keep their property in a reasonably safe condition, and to otherwise maintain their property so as to prevent an unreasonable risk of harm to pedestrians. Peair, 287 Pa. Super, at 405, 430 A.2d at 668; Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 123 (1983). However, a property owner may not be subject to liability for harm caused to another by virtue of a mere slippery condition. See e.g., Roland v. Kravco Inc., 355 Pa. Super. 493, 498, 513 A.2d 1029, 1032 (1986). This court cannot conclude that the defendant should be subject to liability for the reasons that follow.

A condition of the land constitutes a “dangerous” or “hazardous” condition when it creates an unreasonable risk of harm to others. Bromberg v. Gekoski, 410 Pa. 320, 189 A.2d 176 (1963). Also, if an owner or possessor of land has notice of a dangerous condition on his property, and still allows the dangerous condition to exist without acting within a reasonable period of time to remedy the situation, he or she is liable for negligence for any harm caused to another. Vanic v. Ragni, 435 Pa. 26, 254 A.2d 618 (1969) (A defendant who knows or has reason to know of a dangerous condition, and who fails to take reasonable measures to remedy the condition or to warn others of the condition is subject to liability); Sharp v. Luksa, 440 Pa. 125, 269 A.2d 659 (1970) (same).

In this case, the pleadings of record reveal that plaintiff has failed to allege any facts as to the defendant’s purported knowledge of the diesel fuel spill, and as to how defendant may have been derelict in its duty to warn others of this condition, or to take timely and reasonable measures to remedy it. As previously discussed, the facts of record here do not establish that the defendant had any notice of the diesel fuel spill prior to the plaintiff’s accident. Defendant did not know and did not have a reason to know of the diesel fuel spill prior to the accident.

No facts have been pleaded to even show that the plaintiff had either a way to realize the existence of this condition or to avoid it. This court notes that the parties’ stipulations of facts are silent on these evidentiary points. Moreover, in order for the defendant’s liability to be debated in the context of this analysis, plaintiff must show that his claim falls within the real estate exception. Under these circumstances, plaintiff cannot meet its requisite burden.

Case law supports this conclusion. The alleged dangerous condition must derive, originate from or have as its source the Commonwealth realty. Snyder v. Harmon, 522 Pa. 424, 432, 562 A.2d 307, 311 (1989). The operative language articulated in the aforementioned text of the Pennsylvania Supreme Court’s opinion is that the “dangerous condition must derive, originate from or have as its source the Commonwealth realty.” Id. (emphasis added) Giving due consideration to the intended meaning and logical construction of this phrase, this court concludes that the facts of record do not permit any other result. See Jones v. SEPTA, 565 Pa. 211, 772 A.2d 435, 441-44 (2001).

In Jones, the case cited by the parties herein, and on which the plaintiff relies, a passenger sued the defendant authority alleging that she sustained personal injuries when she slipped on rock salt that was present on a train platform. Jones, 565 Pa. at 211, 772 A.2d at 437. The trial court granted the motion for summary judgment filed by the defendant. Jones, supra at 437-38. The plaintiff appealed that decision. Both the Commonwealth Court of Pennsylvania and the Pennsylvania Supreme Court affirmed the trial court’s ruling. Id.

The Jones court set forth the proper test to decide whether the real estate exception to the Sovereign Immunity Act applied. The issues presented in that case were whether the rock salt on the train platform constituted a dangerous condition and, if so, if that dangerous condition derived from, originated from or had as its source the Commonwealth realty. Id. at 441-44. It did not and, therefore, SEPTA had sovereign immunity. Jones is determinative of this case.

Plaintiff attempts to distinguish the salient facts involved in Jones from the instant facts of record by stating that in the Jones case the dangerous condition at issue was created by, or facilitated by, the actions of a third or other party. Plaintiff thereby implies that the result in this case should be different on that basis. In fact, this is a difference without a distinction.

In Snyder, the court stated that in order to pierce the sovereign immunity of the Commonwealth agency, proof of the defect of the realty itself is needed, like an improper design, poor maintenance or a deteriorating condition. A foreign substance is not enough, no matter who deposited it.

Plaintiff pleads that the source or origin of this particular diesel fuel spill was a PAT bus. In other words, plaintiff’s theory of recovery against the defendant is premised on the fact that a PAT bus was responsible for causing the alleged dangerous condition located on the Commonwealth’s realty. A PAT bus is a vehicle. A vehicle is not a part of the realty. The diesel fuel, itself, did not come from the realty in question. As such, the alleged dangerous condition could not, and did not, derive, originate from, or have as its source, the Commonwealth realty. Plaintiff’s only argument therefore lacks merit.

The rationale for the real estate exception to the Sovereign Immunity Act is to ensure that liability is not incurred by Commonwealth agencies, unless there is an inherent problem with the realty in question, which is caused by the agency. The real estate exception is a narrow exception. It, therefore, must be strictly construed.

In so far as the facts of record are concerned, this court finds that the undisputed facts of record establish that the actual source of this alleged dangerous condition did not derive, originate from, or have as its source, the Commonwealth realty. The specific facts alleged by the plaintiff in this case do not meet the applicable standard, as a matter of law.

If, in fact, this diesel fuel spill does constitute a “dangerous condition,” it was not caused by the realty owned, operated, or maintained by the Commonwealth. Finn v. City of Philadelphia, 541 Pa. 596, 601-602, 664 A.2d 1342, 1345 (1995) (The real estate exception to the sovereign immunity doctrine applies only in instances where the artificial condition of the land causes the injury). The defendant was unaware of the diesel fuel spill. As a result, it could take no action to cure this unknown condition.

Defendant also could not have breached a duty of reasonable care, if one did not exist, as here. However, even if PAT was somehow negligent either in its actions or omissions by failing to make the property in question reasonably safe for the activities for which it is used, the defendant cannot be held liable to Proctor, under the existing facts, due to the sovereign immunity doctrine as a matter of law.

In sum, since the alleged defect complained of by the plaintiff in this case did not derive, originate from, or have as its source, the Commonwealth realty, Proctor cannot meet the requisite burden. Because the plaintiff cannot establish that the negligent actions complained of here are covered by the real estate exception, the defendant is entitled to statutory protection from all liability, as provided in the context of sovereign immunity.

For these reasons, the decision of this court issued on August 27, 2001, should be affirmed.

      . Plaintiff does not raise an argument, on appeal, as to the applicability of the motor vehicle exception to the sovereign immunity doctrine. Therefore, this court will not address said issue.


author: PRATT, P.J.,

text:
    Marett v. Borough of Volant

      C.P. of Lawrence County,
    no. 70070 of 2000 M.D.

      Phillip L. Clark Jr., for appellants.

      Thomas W. Leslie, for appellee.
    March 30, 2001
   PRATT, P.J.,

This is an appeal under the Local Agency Law (2 Pa.C.S. §752) by appellants John Marett and Craig Marett from a decision by the appellee, Borough of Volant to initiate water shut-off procedures for failure to pay delinquent tap-in fees and user fees with regard to the sewer system within the borough, as set forth in borough ordinance no. 4-1994, as amended September 14,1999, and ordinance no. 5-1994, as amended September 14, 1999.

In response to the Maretts refusing to pay tap-in and user fees regarding the borough’s new sewer system, the borough conducted a hearing and resultantly passed a motion to disconnect the borough’s water service to the Maretts’ property. The Maretts appealed to this court challenging the legality, validity, and constitutionality of the ordinances.

By agreement of the parties, and pursuant to 2 Pa.C.S. §754(a), this court heard the appeal de novo to determine whether the action of the borough was valid. Both parties presented testimony as well as exhibits. At the conclusion of the hearing, the borough requested leave to depose an engineering expert for the purpose of rebutting testimony by the Maretts’ engineering expert. Ultimately, the borough declined to depose its proposed expert.

This court has jurisdiction of this matter pursuant to the Local Agency Law, 2 Pa.C.S. §§752-754.

The scope of review of this court, where it has conducted a de novo hearing pursuant to 2 Pa.C.S. §754(a), as in the instant case, is that the court “must act as a nisi prius court, weighing the evidence and making its own findings of fact and conclusions of law----” The Board of Pensions and Retirement of the City of Philadelphia v. Einhorn, 65 Pa. Commw. 144, 148, 442 A.2d 21, 23 (1982).

FINDINGS OF FACT

From the evidence presented during the de novo hearing, the court finds as follows:

(1) The property at issue is owned by the Maretts, consisting of two separate properties, one commonly known as the Depot Shops and the other as the Railroad Cars, both situated in the borough.

(2) The borough has developed into a tourist attraction due to the growing number of novelty and retail shops within its borders.

(3) The Pennsylvania Department of Environmental Resources (now the Pennsylvania Department of Environmental Protection) required the borough to construct a sewage disposal system.

(4) In planning and constructing the system, it was necessary to take into account the rise in the number of people entering the borough during the tourist season.

(5) The borough enacted the ordinances pertaining to the new sewage system and included rates to be applied for the system’s construction and use.

(6) The ordinances set forth the tap-in fees with regard to the sewage system and the monthly charge to be collected as user fees from the property owners who tapped into the sewer system within the borough.

(7) The borough failed to perform any studies with regard to determining the cost of maintaining the sewer system prior to enacting the ordinances.

(8) There is no provision within the ordinances that defines equivalent dwelling unit (EDU).

(9) The borough does not consider structures such as bams and garages as EDUs.

(10) Members of the borough’s council, such as Morris Green, Roxanne Johnston, and Robert McGary, as well as other residents of the borough, do not pay tap-in fees or user fees for structures, such as bams and garages, on their property, not connected to the sewer system.

(11) Morris Green owns a house in the borough in which he lives and which includes one apartment. He also utilizes part of the house as a bed and breakfast facility, known as The Candleford Inn, which he rents to the public.

(12) Green is charged two separate tap-in fees and user fees; one for the apartment and the other for the remainder of the house that he uses for his home. He is not charged a tap-in fee or user fee with regard to the additional use for the bed and breakfast business.

(13) Subsequent to the September 14, 1999 amendments to the ordinances, the borough charged the Maretts with 11 tap-in fees at $550 per tap-in and user fees in the amount of $41.86 per use, with regard to the Depot Shops regardless of whether or not the shops were connected to the sewer system.

(14) In addition, the Maretts were charged with four tap-in fees at $550 per tap-in fee and user fees in the amount of $41.86 per use, with regard to the Railroad Cars regardless of whether or not the shops were connected to the system.

(15) The Maretts contested the tap-in fees and user fees to both shops and refused to pay the borough, asserting these shops were not connected to or utilizing the sewer system.

(16) In response to the Maretts refusing to pay the tap-in fees and user fees, the borough, giving prior notice to the Maretts, conducted a hearing on April 11, 2000, regarding the delinquent tap-in fees and user fees.

(17) The record is devoid of any reference to the Maretts attending and participating in the hearing.

(18) After the hearing, the Maretts were notified, on April 13, 2000, that the borough had passed a motion to disconnect the water service at the Depot Shops, effective April 27, 2000, at 10 a.m. The Railroad Cars, never having been connected for water service, were not effected by the motion.

(19) Upon receiving the notice of the water shut-off, the Maretts filed an appeal to this court on April 25,2000, challenging the legality, validity, and constitutionality of the ordinances.

DISCUSSION

A trial court’s standard of review of a sewer rental rate ordinance of a borough organized under the laws of Pennsylvania is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or an arbitrary establishment of the rate system in question. Brandywine Homes v. Cain Township Municipal Authority, 19 Pa. Commw. 193, 200, 339 A.2d 145, 148 (1975).

Because the issue raised of whether the ordinances are being applied unfairly to the Maretts’ property is dis-positive of this appeal, the court will not address the remaining contentions of the Maretts enumerated in their original appeal.

In support of their assertion that the borough has unfairly applied the ordinances to their property, the Maretts first argue that the borough has abused its discretion in applying sewer rates under the ordinances, reasoning there is no reasonable relationship between the sewer charges imposed and the value of services rendered. The Maretts rely on the argument that they are being charged tap-in fees and user fees for the sewer system with regard to property not connected to or using the sewer system.

Furthermore, the Maretts feel that the borough has abused its discretion with regard to the fees, because the rates are not being applied uniformly and, thus, are being applied unfairly to their properties, pointing out that there are structures within the borough that are not connected to the system and are not being charged the tap-in fees or user fees.

The Maretts further insist that the borough is not in a position to establish a reasonable and uniform rate system, because they have no data to determine reasonable and uniform rates. The Maretts claim that the necessary data used in assessing a fair rate is not available, because the borough did not perform any studies or collect any information regarding the cost of maintaining the new sewer system.

The borough counters that, although the Maretts are being charged for structures not connected to the sewer system, their property still receives a benefit of the system and, therefore, the Maretts should be expected to contribute to paying for the construction and maintenance of the system. The borough argues that the rise in the number of shops within the borough and the influx of tourists precipitated the need for a new sewer system. The borough contends that the ordinances were enacted so that the cost of the system was assessed, not only upon the residents of the borough, but also to the retail shop owners. The borough goes on to argue that all retail shops were charged tap-in fees and user fees whether or not connected to the system, because all who benefit from the system should pay for it. The borough asserts that the retail shops, whether or not connected to the sewer system, are benefiting because the tourists coming into the area to purchase items need the convenience of restroom facilities.

Pennsylvania law clearly holds that sewer rental rates are not to be based solely on services actually consumed. Life Services Inc. v. Chalfont-New Britain Township Joint Sewage Authority, 107 Pa. Commw. 484, 490, 528 A.2d 1038, 1041 (1987). Sewer rates must also bear a reasonable relation to the value of services rendered, either as actually consumed or as readily available for use. Id.; Ack v. Carroll Township Authority, 661 A.2d 514 (Pa. Commw. 1995). For assessed sewer rates to be reasonably related to the value of services rendered, there must be some benefit to the individual being charged. Township of Kennedy v. Ohio Valley General Hospital, 129 Pa. Commw. 494, 499, 566 A.2d 348, 351 (1989).

In Hamilton’s Appeal, our Supreme Court, reflecting on the meaning of the type of benefit to be received, ruled that sewer rates must he proportional to the value of services rendered. The court reasoned that properties not connected to the sewer system received no benefit stating “[n]or, can the charge be sustained on any theory of supposed special benefits arising from the mere presence or availability for use of the facility.” Hamilton’s Appeal, 340 Pa. 17, 23, 16 A.2d 32, 35 (1940). The court held that it was unlawful, therefore, for properties to be charged when they were not connected to the system or connected to it but not utilizing it.

As applied here, the borough’s argument that the Maretts received a benefit because customers of the retail shops, owned by the Maretts, may use or will use restroom facilities connected with the sewer has to fail. The Maretts are paying tap-in fees and user fees for the structures they own and are indeed connected to the sewer in the borough. The Maretts’ argument lies with those structures being charged which do not have sewer hookups. With these properties, the sewer rate structure imposed by the borough is, therefore, unlawful.

The Maretts also argue that the rate system imposed by the borough is not uniformly applied to all property owners in the borough. The Maretts note that several members of the borough’s council, such as Morris Green, Roxanne Johnston, and Robert McGary, as well as other residents of the borough, have structures on their property but do not pay tap-in fees or user fees for the structures, because they are not connected to the sewer system.

“[A] municipality may create classifications of users so long as a charge is uniform within the classification and is reasonably proportional to the service rendered.” Glen Riddle Park Inc. v. Middletown Township, 11 Pa. Commw. 574, 581, 314 A.2d 524, 527 (1974); Fairwood Manor Associates v. Borough of Irwin, 98 Pa. Commw. 474, 478, 511 A.2d 936, 938 (1986). Here, the emphasis is on the classification upon which a sewer rate is to be imposed.

Uniform sewer rates in situations where the term EDU has been specifically defined and each EDU benefits from the sewer system in an identical manner have been upheld as valid. Curson v. West Conshohocken Municipal Authority, 148 Pa. Commw. 386, 391, 611 A.2d 775, 776 (1992). In the present case, the ordinances refer to several examples of what types of structures are to be included in the rate structure. Ordinance no. 4-1994, as amended, reads, in pertinent part, as follows:

“Section 1 — Connection required: Every owner of property in the Borough of Volant whose property is benefited, improved or accommodated by a sanitary sewer shall connect, at its own cost, the house, building or other structures located on said property with the aforementioned sanitary sewers in accordance with provisions of this ordinance.
“If two or more uses, such as, but not limited to, two or more dwellings, two or more apartments, two or more stores, two or more offices, two or more commercial units, two or more industrial units, or two or more dissimilar uses, are connected through a single lateral, or if two or more uses as aforesaid are in the same structure whether connected by the same connection fee imposed by this ordinance shall be computed by treating each such use so that a separate sewer connection fee is payable for each such separate use or portion of property as a separate use.”

Ordinance no. 5-1994, as amended, reads, in pertinent part, as follows:

“Section 1 — In order to pay the operation and maintenance costs of the borough in connection with said sewer system, and to pay the obligations of the borough in connection with said sewer system, there is hereby imposed upon each property/use in the Borough of Volant, whether or not such property/use is connected to the sewer system, a monthly charge of $41.86 per use.
“If two or more uses, such as but not limited to, two or more dwellings, two or more apartments, two or more stores, two or more offices, two or more commercial units, two or more industrial units, or two or more dissimilar uses, are located within the same structure, whether or not it/they are connected to the sewer system, it is hereby imposed upon each said use a monthly charge of $41.86 per use.”

However, the ordinances use the language “such as, but not limited to” followed by a short list of entities upon which the user fees and tap-in fees are to be assessed. (Ordinance no. 4-1994(b) and ordinance no. 5-1994(a).) There is no specific definition of the term EDU in the ordinances. It can be argued, therefore, that other structures in the borough, such as garages and bams, as well as the “Sprint Building,” should be included within the meaning and, accordingly, charged the tap-in fees and user fees in question.

Furthermore, the ordinances state that, if there are two or more dissimilar uses within one structure, there should be a charge of $41.86 per use as well as a tap-in fee for each use. Unrefuted testimony of the Maretts shows that a bed and breakfast structure, owned by Morris Green, located within the borough, does not pay an additional tap-in fee or user fee for the use of the facility for purposes of running the bed and breakfast operation. Green is, consequently, only charged tap-in fees and user fees for his home and the apartment located therein and not for the separate use of the property as a bed and breakfast business.

The court concludes, therefore, that the sewer rate system imposed in the borough is not applied reasonably and uniformly.

In addition, the Maretts argue that the borough is not in a position to assess rates in a uniform or reasonable manner, because the borough failed to perform any studies with regard to maintaining the system. The Commonwealth Court has consistently required data concerning the costs of treating or maintaining a system when determining whether a sewer system rate structure is arbitrary. Glen Riddle Park Inc. v. Middletown Township, 11 Pa. Commw. 574, 580, 314 A.2d 524, 527 (1974); Ack at 519. Here, as a reasonable rate for sewage service cannot be set, if the borough, in setting the rates, had no relevant data regarding the cost of maintaining the facility on which to rely, this court must conclude that the sewer rate system of the borough is arbitrary.

CONCLUSIONS OF LAW

(1) As the rate system imposed by the borough includes properties not connected to or receiving sewage services, and rates imposed by the borough do not bear a reasonable relation to the value of services rendered, either as actually consumed or readily available for use, the sewer rate system of the borough is unlawful and unenforceable.

(2) The borough’s sewer rate system is unenforceable as to the Maretts, none of the shops at the Railroad Cars are connected and not all of the shops at the Depot Shops are connected to the sewer system and, thus, all of the Maretts’ property do not receive a benefit that warrants all of the property being assessed tap-in fees and user fees.

(3) The ordinances are not valid, since the borough has not specifically defined the classifications of EDUs to be charged sewer rental rates.

(4) The borough’s sewer rate system is neither uniform nor reasonable, because no studies were performed to determine the cost of maintaining the sewer system and, therefore, the ordinances are invalid.

(5) The sewer rate system of the borough as reflected by the ordinances, based upon the court’s findings of fact and applicable law, was established arbitrarily and, therefore, was an abuse of discretion.

(6) The sewer rates reflected in the ordinances implementing the sewer rate system are invalid and unenforceable.

(7) The action of the borough initiating water shut-off procedures against the Maretts is invalid.

The accompanying order implements the determinations of this court.

ORDER

In accordance with the appended opinion, the court directs that ordinance no. 4-1994, as amended September 14, 1999, and ordinance no. 5-1994, as amended September 14, 1999, of the Borough of Volant are invalid and unenforceable. The court also vacates the April 13,2000 action of the Borough of Volant ordering a disconnect of water service at the Depot Shops, effective April 27, 2000.

The prothonotary shall properly serve notice of the instant order upon counsel of record.


author: NEALON, J.,

text:
    Scranton Times v. Scranton Parking Authority
    C.P. of Lackawanna County,
    no. 2000-CV-3559.

      Timothy Hinton, for petitioners.

      Judith G. Price, for respondent Scranton Parking Authority.

      George Seig and Joseph A. O’Brien, for respondent Jarbola.

      February 21, 2001
   NEALON, J.,

The Scranton Times, Sunday Times and Scranton Tribune have filed a petition under the Right-to-Know Act seeking the disclosure of documents concerning parking violations and fines that were voided by the Scranton Parking Authority for designated vehicles operated by personnel of the Lackawanna County District Attorney’s Office. Following a series of hearings and conferences on January 22, 2001, February 13,2001, andFebruary 20,2001, the SPA and District Attorney Andrew J. Jarbola voluntarily produced certain records and The Times withdrew its requests for other materials that it had previously demanded. Based upon those disclosures and concessions, the remaining issues in dispute are limited to (1) records reflecting the geographic location of each voided parking violation and (2) the SPA’s computer printouts itemizing fines which were issued, but not collected, for parking infractions by county vehicles that had been assigned to the district attorney and first assistant district attorney. Since the documents requested are “public records” and their disclosure with certain redactions will not reveal the institution or result of any criminal investigation, nor will it compromise the personal security of any law enforcement personnel or other person, The Times’ request to inspect those materials will be granted.

I. FACTUAL BACKGROUND

The SPA maintains the jurisdiction to enforce parking violations in the downtown commercial (C-D) district which is comprised of a several block radius around the Lackawanna County Courthouse and the city magistrate’s office. (See affidavit of SPA executive director, Kevin Conway, ¶1.) The SPA is empowered to assess fines of $20 for meter overtime violations and $50 for parking in a handicapped designated space or within 20 feet of a fire hydrant. The penalty for a parking meter violation may be reduced to $10 if payment is delivered to the city treasurer’s office within 24 hours of the issuance of the ticket. If the fines are not paid within five days, the penalty is increased to $100, plus payment of costs of prosecution and the delinquent fines are processed into citations at the city magistrate’s office. (Id., ¶2; file of council no. 41 of 1987, §§12, 16; file of council no. 36 of 1999, §§12, 16.)

Because of “the limited parking available around the courthouse” and the need for law enforcement personnel to have “immediate access to the courthouse facility ... for the performance of official law enforcement duties and activities,” the SPA formulated a “policy of not processing parking tickets issued to . . . undercover vehicles . . . utilized by law enforcement professionals in performing law enforcement related business and activities” in the Lackawanna County Courthouse and the city magistrate’s office. Under this policy, the SPA would enter designated license plate numbers into its computer so that tickets which were issued to undercover vehicles would not be forwarded to the city magistrate’s office to be processed as citations. Although parking tickets would be issued by SPA meter attendants who were unaware of the identity of the undercover vehicles, they would not be transmitted by the SPA computer to the city magistrate’s office once they became delinquent for nonpayment within five days. Additionally, in order “to ensure accountability,” former Chief County Detective Walter Carlson required each undercover detective “to collect and maintain any parking tickets issued to their vehicles” so that they could be placed into “a designated repository” for inspection by the SPA. (See SPA’s answer to The Times’ petition, exhibit A, pp. 1-2.)

After Mr. Carlson left the employ of the district attorney’s office in July 1997, the district attorney provided the SPA with a confidential list of undercover vehicles that were to be immune from parking violations. (Id., p. 2.) By letter dated May 1,1997, the district attorney furnished the SPA with the license plate numbers for 15 vehicles which had been classified as undercover. On April 8, 1998, the district attorney forwarded a revised list to the SPA which increased the number of undercover vehicles to 22. (See transcript of proceedings of hearing dated 1/22/01, pp. 29, 31-33.) The number of parking tickets that were voided by the SPA for those vehicles which had been denominated as undercover totaled 1,722 in 1998 and 1,831 in 1999. (See transcript of proceedings of hearing dated 2/13/01, pp. 4-6.)

Due to their reported concern regarding the quantity of undercover vehicles and the location of the parking violations, the executive director and solicitor for the SPA approached the new chief county detective, Thomas Dubas, in January 2000 to discuss revision of the undercover vehicle list. As a result of that meeting, “the quantity of vehicles was dramatically reduced,” (see SPA’s answer to The Times’ petition, exhibit A, p. 3), and by letter dated May 25, 2000, Chief Detective Dubas provided an updated list to the SPA which designated three vehicles as undercover. (T.H. dated 1/22/01, p. 33.) Consequently, the number of parking tickets which were voided by the SPA for undercover vehicles between May 25,2000 and December 31,2000, decreased to 255. (T.H. dated 2/13/01, p. 5.)

On April 5, 2000, The Times’ managing editor transmitted a written request to the SPA solicitor for a copy of “an apparent agreement between the Scranton Parking Authority and the Lackawanna County District Attorney’s Office which calls for the authority to excuse parking tickets issued to certain vehicles assigned to the district attorney’s office.” In its correspondence, The Times indicated that it intended “to review this information similar to the way The Times-Tribune recently reviewed parking tickets which were voided by various officials of the City of Scranton. That review, you may recall, resulted in the Parking Authority being reimbursed for tickets which were voided inappropriately.” (See The Times’ petition to obtain access to records, exhibit A.) By letter dated April 6,2000, the SPA solicitor forwarded The Times’ request to the district attorney and advised him that “[b]ecause of the law enforcement and possible security issues involved, the Board of Directors of the Authority has instructed me to request that your office be responsible for responding to this request of the ‘Times-Tribune.’ ” (Id., exhibit B.)

On April 13, 2000, The Times’ managing editor forwarded a supplemental request to the SPA solicitor demanding production of records concerning tickets that were voided for parking violations other than overtime meter offenses. (Id., exhibit C.) The SPA executive director forwarded a detailed reply to The Times on April 24,2000, which concluded with the caveat that “District Attorney Andrew Jarbola has indicated to me that a response to your various requests will be forthcoming in the very near future.” (Id., exhibit D, p. 4.) On June 12, 2000, counsel for The Times delivered a letter to the district attorney renewing the demand for certain materials and requesting an immediate response so that “this matter can be resolved without judicial intervention.” (Id., exhibit E.) In the absence of any response, The Times commenced this litigation on July 20, 2000, by filing a petition under the Right-to-Know Act seeking access to the SPA-district attorney’s office records from 1997 to 2000 relating to the foregoing agreement.

In its answer to The Times ’ petition, the SPA produced three letters that it had received from the district attorney’s office identifying certain vehicles as undercover. However, the SPA redacted the vehicles’ license plate numbers from that correspondence since “[t]he Lackawanna County District Attorney’s Office has requested that for the safety of the officers involved and to preserve the integrity of the institution and progress of criminal investigations, the Scranton Parking Authority not release parking ticket information, the license plate numbers and vehicle identification numbers contained on the list submitted by the district attorney’s office to the Scranton Parking Authority.” (See SPA’s answer to petition, ¶9, exhibits A and B.) The district attorney filed a separate response to The Times’ petition in which it objected to the document requests and asserted “that the records contain confidential and sensitive information, the disclosure of which could negatively effect the safety of law enforcement officials and would, otherwise, be contrary to the interest of justice.” (See district attorney’s response to petition, ¶¶10, 12, 15-17.)

During the subsequent evidentiary hearings, The Times withdrew its demand for information regarding the license plate numbers and make/model identification characteristics for the undercover vehicles in light of the security concerns for detectives who operated those vehicles. (T.H. 1/22/01, pp. 6-7.) In addition, counsel for the district attorney voluntarily revealed the number of undercover vehicles identified in the letters to the SPA dated May 1, 1997, April 8, 1998, and May 25, 2000, (id., pp. 29,31-33,41), and the SPA disclosed its tally of the total number of tickets voided for those vehicles in 1998, 1999 and 2000. (T.H. 2/13/01, pp. 4-6.) The district attorney also confirmed that with the exception of one automobile which was personally owned by a Scranton police officer who was a member of the auto theft task force, all of the undercover vehicles identified in the correspondence addressed to the SPA were registered or leased as official vehicles of the district attorney’s office. (Id., pp. 7-10.)

The district attorney originally indicated that there were no documents that had been prepared prior to the filing of this lawsuit which identified those individuals who were denoted as the primary users of the vehicles that had been designated as undercover. (Id., pp. 12-13, 17.) However, upon further inspection, the district attorney’s office did discover the undercover vehicle listings for 1997, 1998, 1999 and 2000 and those records were submitted for an in camera review by the court on February 20, 2001.

The district attorney submits that the lists produced by his office identify assigned operators for each vehicle but only intends that designation to ascribe responsibility for the vehicle’s maintenance and service. In support of its contention, the district attorney produced an internal memorandum prepared by its auto theft and insurance fraud task forces which reflects that the vehicle and license plate number which had been assigned to the district attorney on the 1997-1999 lists were actually being operated during that time by Myles R. Walsh, the executive director for the auto theft task force. (See T.H. dated 2/20/01, pp. 39-45.) The Times counters that the district attorney’s lists for 1997-2000 do not indicate that the persons identified as the principal operators had only been so designated for purposes of vehicle maintenance. (Id., p. 48.)

The in camera review which was conducted in open court revealed that the overwhelming majority of the vehicles identified on the district attorney’s lists for 1997-2000 had been allotted to undercover detectives and various task forces. (Id., pp. 11-38.) The district attorney’s itemization further revealed that vehicles and license plate numbers which had been assigned to the district attorney and the first assistant district attorney had been included on the lists of undercover vehicles which had been forwarded to the SPA. As a result, The Times requested that it be provided with separate computer printouts from the SPA delineating the parking tickets which had been voided for the vehicles assigned to the district attorney and first assistant district attorney. (Id., pp. 48-52, 60.)

The SPA has generated computer printouts which detail the parking tickets that were voided for each vehicle that was classified as undercover by the district attorney. The Times has agreed that the license plate numbers and vehicle identification information contained on those computer lists may be redacted for security reasons so that the identity of undercover vehicles will not be disseminated into the public domain. (See T.H. dated 1/22/ 01, pp. 5-7.)

The district attorney submits that the geographic location of each parking violation should likewise be deleted because of security concerns. The Times argues that its preliminary investigation into the SPA practice of excusing parking tickets for the vehicles in question suggested that members of the district attorney’s staff and task forces may have abused that privilege by not confining their parking violations to instances in which they had to gain immediate access to the courthouse or city magistrate’s office for arraignments, hearings and law enforcement activities. Specifically, The Times maintains that employees of the district attorney’s satellite office in the Brooks Building, 436 Spruce Street, Scranton, would park their vehicles for the entire day on the 400 block of Spruce Street while they worked in their Brooks Building offices. According to The Times, only those parking tickets which were issued on the 500 blocks of Spruce Street and Linden Street and the 200 blocks of Adams and North Washington Avenue would relate to the discharge of law enforcement duties by district attorney personnel in the courthouse or city magistrate’s office. If the SPA records reveal that a significant number of tickets were voided for parking offenses on the 400 block of Spruce Street, The Times contends that those documents will confirm that members of the district attorney’s staff and task forces who work in the Brooks Building abused the SPA ticket voiding practice to subsidize parking expenses that should have been personally incurred by those district attorney employees. Hence, The Times posits that the geographic location of each parking violation should not be withheld from public scrutiny since it may demonstrate a potential misuse of public funds and its disclosure will not jeopardize any criminal investigation or compromise the safety of any person. (See T.H. dated 2/13/01, pp. 13-24.)

As stated above, The Times has also requested that it be provided with copies of the SPA computer printouts for tickets issued to the vehicles that were assigned to the district attorney and first assistant district attorney. The Times asserts that inasmuch as the district attorney and first assistant district attorney are furnished with complimentary parking spaces on the courthouse grounds, there should be no need for them to incur fines for parking offenses on public roadways in order to gain access to the courthouse and city magistrate’s office. The Times submits that if downtown parking violations were incurred by those vehicles, it allegedly would indicate that the district attorney and first assistant district attorney had improperly allowed their staff to use vehicles which had been assigned to the district attorney and first assistant district attorney. The Times argues that permitting office personnel to utilize those vehicles for extended periods of time would constitute a misuse of county property. (See T.H. dated 2/20/01, pp. 58-62.)

II. DISCUSSION

(A) Right-to-Know Act

More than 40 years ago, the General Assembly codified the common-law right of a citizen to inspect public records into a statute which is commonly referred to as the Right-to-Know Act, Act of June 21, 1957, RL. 390, as amended, 65 P.S. §66.1-66.4. See Tribune-Review Publishing Co. v. Allegheny County Housing Authority, 662 A.2d 677, 679 (Pa. Commw. 1995), app. denied, 546 Pa. 688, 686 A.2d 1315 (1996). Section 2 of the Act provides that “[e]very public record of an agency shall, at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania.” 65 P.S. §66.2. The phrase “public record” is statutorily defined, in relevant part, as:

“Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, that the term ‘public record’ shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, ... , or which would operate to the prejudice or impairment of a person’s reputation or personal security,... .” 65 P.S. §66.1(2).

The Act is intended to assure the availability of government information to citizens of the Commonwealth by permitting access to official information. Arduino v. Borough of Dunmore, 720 A.2d 827, 830 (Pa. Commw. 1998), app. granted, 559 Pa. 694, 739 A.2d 1059 (1998), app. dismissed as improvidently granted, 559 Pa. 415, 741 A.2d 195 (1999); Vargo v. Dept. of Corrections, 715 A.2d 1233, 1236 (Pa. Commw. 1998). Another purpose of the Right-to-Know Act “is to scrutinize the acts of public officials and to make them accountable for their use of public funds.” Tribune-Review Publishing Co. v. Dept. of Community & Economic Development, 751 A.2d 689, 692 (Pa. Commw. 2000). A person’s “right to examine a public record is not based on whether the person requesting the disclosure is affected by the records or if his or her motives are not pure in seeking them,” Weaver v. Dept. of Corrections, 702 A.2d 370, 371 (Pa. Commw. 1997), app. denied, 553 Pa. 685, 717 A.2d 536 (1998), and “a citizen may not be denied access to public records because of lack of [personal] interest or for a lack of a ‘legitimate’ purpose.” Envirotest Partners v. PennDOT, 664 A.2d 208, 212 (Pa. Commw. 1995). In fact, arequester need not provide any reason for demanding to inspect a public record. The Scranton Times, 136 A.2d at 713.

(B) Public Record Classification

Section 1(2) of the Act contemplates a two-step analysis in determining whether a document is subject to production as a public record. The first step requires a determination of whether the requested document falls generally within the definition of “public record.” “If it does, a determination of whether any of the stated exceptions to this general definition are applicable must be made.” Vargo, 715 A.2d at 1236. In that regard, “a broad construction is to be given to the initial determination of whether a document is a public record, to be tempered as an opposing party brings into play the enumerated exceptions.” Legal Capital LLC v. Medical Professional Liability Catastrophe Loss Fund, 702 A.2d 869, 871 (Pa. Commw. 1997), aff’d, 557 Pa. 10, 731 A.2d 132 (1999). Accord Arduino, 720 A.2d at 830 (“the definition of a public record must be liberally construed so as not to unduly restrict the public access to information granted by the Act.”).

Public records generally fall into two categories: (1) accounts, vouchers, or contracts dealing with fiscal aspects of government, and (2) minutes, orders or decisions fixing personal or property rights of a person. The Supreme Court of Pennsylvania has concluded that the first category, i.e., documents dealing with the receipt or disbursement of funds, should be interpreted expansively, whereas the second category, documents “fixing” the rights of persons, is to be afforded a “somewhat narrower construct.” North Hills News Record v. Town of McCandless, 555 Pa. 51, 55, 722 A.2d 1037, 1039 (1999); Tribune-Review Pub. Co., 751 A.2d at 691. “While the overall emphasis of the Act is on disclosure, it seeks to provide a balanced formula which opens the administrative process to the scrutiny of the general public, and, simultaneously, protects the confidential nature of specific types of information.” Allegheny Cty. Housing Auth., 662 A.2d at 680.

It is beyond legitimate dispute that parking tickets which have been voided by an agency and computer printouts itemizing fines that were not collected by an agency clearly constitute documents “dealing with the receipt or disbursement of funds by an agency.” By utilizing the terminology “dealing with” in section 1(2) of the Act, the legislature intended to provide a broad interpretation such that “as long as the contract dealt with the possible appropriation of public funds, the contract was a public record subject to inspection.” The Morning Call Inc. v. Lower Saucon Twp., 156 Pa. Commw. 397, 401-402, 627 A.2d 297,299 (1993); Davis v. Newton Twp., 101 Lacka. Jur. 42, 48 (1999) (since a wrongful death settlement payment made by a township may result in higher insurance premiums for the. governmental defendants, the settlement agreement relates to the possible appropriation of municipal funds and qualifies as a ‘public record’ under the Pennsylvania Right-to-Know Act.). Therefore, “any records related to ‘disbursement of funds by an agency’ in the possession of the agency are public records.” Arduino, 720 A.2d at 831. See also, Sapp Roofing Inc. v. Sheet Metal Workers’ International Association, Local Union No. 12, 552 Pa. 105, 713 A.2d 627 (1998) (private contractor’s payroll records in possession of an agency are public records since they pertain to the receipt or expenditure of public funds).

If the tickets were merely for overtime meter violations and were paid within 24 hours, the assessed fine would be $10 per ticket, but that penalty could increase to $100 if the ticket were not paid within five days of its issuance. Thus, the dollar amount of tickets voided in 1998 could have totaled between $17,220 and $172,200, whereas the figure for 1999 could have ranged between $18,310 and $183,100. Records related to the abatement of fines in those amounts unquestionably “deal with” the SPA’s receipt or disbursement of funds.

It is equally clear that documents which reflect the identity of government employees, who were selected to enjoy the privilege of operating county vehicles that were immune from parking violations similarly pertain to agency decisions “fixing” the rights, privileges or immunities of a group of persons. However, even though a document may concern the collection or expenditure of funds or the establishment of rights, privileges or immunities of a person, it may nevertheless be shielded from disclosure if its publication would reveal “the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties” or would “operate to the prejudice or impairment of a person’s reputation or personal security.” 65 P.S. §66.1(2).

(C) Criminal Investigation/Personal Security Exceptions

Since the Act favors disclosure, documents are presumed to be public records and “[i]n order to qualify for the exception, the agency must overcome the statutory presumption that the records sought are public.” Allegheny Cty. Housing Auth., 662 A.2d at 684. The Freedom of Information Act, 5 U.S.C. §552, “takes a more restrictive view of law enforcement records as an exception to the general rule of the availability of information to the public.” Sullivan v. City of Pittsburgh, Dept. of Public Safety, 127 Pa. Commw. 339, 343, 561 A.2d 863, 865 (1989), app. denied, 525 Pa. 591, 575 A.2d 120 (1990). Under the Pennsylvania statute, “[t]his exclusion not only applies to active investigations, but it also applies ... to records related to completed investigations.” Commonwealth v. Mines, 680 A.2d 1227, 1229 (Pa. Commw. 1996). For example, in PG Publishing Co. v. County of Washington, 162 Pa. Commw. 196, 638 A.2d 422 (1994), a newspaper sought disclosure of itemized cellular telephone billings of various county officials, including the district attorney and the drug task force unit. The trial court denied access to telephone numbers which related to “active criminal investigations,” but on appeal, the Commonwealth Court modified the lower court ruling to include redaction of telephone numbers involving the institution, progress or result of any investigations, including those which had been completed. Id., at 207, 638 A.2d at 427.

With regard to the personal reputation or security exception, the Commonwealth Court has observed “that for records to fall within the personal security exception they must be intrinsically harmful and not merely capable of being used for harmful purposes.” PG Pub. Co., supra at 215, 638 A.2d at 431 (quoting Young v. Armstrong School District, 21 Pa. Commw. 203, 207, 344 A.2d 738, 740 (1975)). Rather, “it is our duty under the Act to determine only whether the public records themselves would operate to the prejudice or impairment of reputation, not whether their use with other information might have such harmful consequence.” PG Pub. Co., supra at 214-15, 638 A.2d at 431; Moak v. Phila delphia Newspaper Inc., 18 Pa. Commw. 599, 605, 336 A.2d 920, 924 (1975). For that reason, “[t]his concept of personal security flows from protection against personal harm rather than a potential invasion of harm.” Allegheny Cty. Housing Auth., 662 A.2d at 684; Young, supra.

The scope of the personal security or reputation exception is best illustrated by the fact specific determinations that have been made by the Pennsylvania courts on a case-by-case basis. For instance, a criminal defendant who has been convicted for sexually assaulting minor boys may not obtain copies of their confidential victim impact statements which the State Board of Probation and Parole had reviewed in making its decision to deny parole since the release of the information could operate to impair the victims’ personal security or reputation. Cicchinelli v. Pennsylvania Board of Probation and Parole, 760 A.2d 914, 915 (Pa. Commw. 2000). Nor may an inmate inspect documents regarding the drug detection equipment utilized by a prison to detect the presence of drugs on visitors to the jail inasmuch as disclosure of that information could result in the introduction of drugs into the prison which could result in violence and harm to prison personnel and inmates. Vargo, 715 A.2d at 1238. Furthermore, the public may not be granted access to state police documents regarding sobriety and drug checkpoints, drug interdiction, and intelligence reports on subversive activity and terrorism since “allowing individuals to discover such procedures and anticipate or discern drug and alcohol checkpoints could lead to tip-offs, thus endangering police personnel.” Gutman v. Pennsylvania State Police, 148 Pa. Commw. 567, 572, 612 A.2d 553, 556 (1992), app. denied, 533 Pa. 638, 621 A.2d 583 (1993). See also, Weaver, 702 A.2d at 372-73 (inmate not entitled to inspect the Pennsylvania Additive Classification Tool (PACT) manual used by the Department of Corrections to assess inmates and determine what level of custody is appropriate since “once an inmate knows of the criteria that went into making that determination, the inmate could manipulate the decision” and thereby secure inappropriate housing which “could endanger the inmate, other inmates or staff’).

In contrast, if the records are not intrinsically harmful so as to jeopardize one’s personal security, they are subject to disclosure. Although the Gutman court denied access to documents concerning sobriety checkpoints, drug interdiction and terrorism intelligence, it concluded that the Pennsylvania State Police Department was required to honor the “request for regulations concerning the responsibilities of the various state police bureaus and divisions and for regulations concerning the use of deadly force” as those documents were “not within the scope of any of the exceptions to the Act.” Gutman, supra at 572, 612 A.2d at 556. Similarly, in PG Pub. Co., the district attorney, drug task force, sheriff and coroner were not allowed to redact from the cellular telephone bill itemization any numbers which did not relate to a criminal investigation based upon the Commonwealth Court finding that “[t]he telephone numbers remaining do not in and of themselves trigger any risk of harm to individual security or reputation.” PG Pub. Co., supra at 215,638 A.2d at 431. Moreover, while the Vargo court denied an inmate’s request for information pertaining to the drug detection equipment utilized by the Department of Corrections, it concluded that the DOC did not have just and proper cause to deny, on the basis of the investigation or personal security exception, the inmate’s separate request for disclosure of “information concerning its policies regarding the qualifications of personnel who administer the drug detection equipment.” Vargo, 715 A.2d at 1239.

Instantly, as long as the license plate numbers and vehicle identification characteristics are deleted from the SPA computer printouts, the disclosure of the situs of the parking violations will not reveal any confidential information regarding a pending or completed criminal investigation, nor will it threaten the safety of undercover personnel. It is wholly inconceivable that even the most sophisticated criminal could somehow recall several years later that a particular vehicle (whose identity is being withheld) had received a parking ticket at a specific location in downtown Scranton on a given date in 1998 or 1999 such that [s]he would thereby be able to discover the current identity of undercover detectives or their vehicles. Since the SPA computer printouts are clearly records which relate to the receipt or disbursement of public funds and none of the stated exceptions in 65 P.S. §66.1(2) are applicable, The Scranton Times is entitled to inspect those materials under the Right-to-Know Act.

Production of the SPA’s itemized list of parking fines assessed to the vehicles and license plate numbers assigned to the district attorney and first assistant district attorney similarly will not divulge any protected information regarding criminal investigations or law enforcement personnel, provided that the license plate number and vehicle make, model, color and body type are redacted from the documents produced. The district attorney posits that inasmuch as other office personnel may have used those assigned vehicles on occasion, any SPA records detailing the tickets issued to those vehicles will not necessarily indicate that the parking violations were personally committed by the district attorney or first assistant district attorney. The district attorney’s arguments are better addressed to the accuracy or validity of any prospective newspaper report regarding parking tickets received by the district attorney or first assistant district attorney and do not relate to the issue of whether those documents constitute public records under section 1(2) of the Act. Since the scope of judicial inquiry is confined to a determination of whether those computer itemizations are public records, and in light of the fact that none of the stated exceptions in 65 PS. §66.1(2) alter their status as public records, The Times’ request to gain access to those public records will be granted. An appropriate order will follow.

ORDER

And now, February 21, 2001, upon consideration of the petition of The Scranton Times, Sunday Times and Scranton Tribune to obtain access to public records of the Scranton Parking Authority, the responses thereto of the Scranton Parking Authority and District Attorney Andrew J. Jarbola, and the argument of counsel during the hearings on January 22,2001, February 13,2001 and February 20, 2001, and in accordance with the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The petitioners’ request to inspect public records under the Right-to-Know Act, 65 P.S. §66.1-66.4 is granted subject to the following conditions;

(2) The petitioners are to be granted access to the computer printouts prepared by the Scranton Parking Authority itemizing the parking tickets which were voided in 1997, 1998 and 1999 for the vehicles identified in the correspondence forwarded to the Scranton Parking Authority by the Lackawanna County District Attorney’s Office on May 1,1997 and April 8, 1998, provided that the license plate number and make, model, color and body type for each vehicle are redacted from the lists that are furnished to the petitioners;

(3) The Scranton Parking Authority shall produce for inspection by the petitioners separate computer printouts itemizing the parking tickets which were issued in 1997, 1998 and 1999 to the vehicles and license plate numbers that had been assigned to the district attorney and the first assistant district attorney, provided that the records produced by the Scranton Parking Authority shall first redact any reference to the license plate number and make, model, color and body type for both vehicles;

(4) The computer printouts which are to be produced by the Scranton Parking Authority pursuant to paragraph 3 of this order shall identify the separate itemizations by designating them as the “district attorney vehicle” list and the “first assistant district attorney vehicle” list; and

(5) A separate order setting forth the protocol to be followed by the respondents in producing the foregoing public records for inspection will be filed under seal and distributed only to counsel for the respondents.

      . Counsel for the SPA confirmed that the SPA computers print lists which segregate the tickets issued to each undercover vehicle. (Id., pp. 5-6.) Therefore, individual computer printouts for the vehicles which were assigned to the district attorney and first assistant district attorney have already been prepared and are readily available. See
        The Scranton Times L.P. v. The Scranton Single Tax Office, 736 A.2d 711, 712-13 (Pa. Commw. 1999), aff’d, 564 Pa. 30,764 A.2d 17 (2000) (the Right-to-Know Act does not require a public agency to “compile from public records information contained in those records.”).