R. Duquette v. OOR ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ralph Duquette, :
Petitioner :
:
v. : No. 84 M.D. 2022
: SUBMITTED: October 21, 2022
Office of Open Records, Palmyra Area :
School District, Goldstein Law Partners, :
LLC, Joshua Jones, Michael Koval, Mandy :
Braden, Maryann Cini, Kayla Leiberher, :
Alicia Brendle Haldeman, Individually and :
in their official capacity as Members of the :
Palmyra Area School Board of Directors, :
and Christine Fisher, Larry Geib and Suzann :
Gilligan in Their Roles as Members of the :
Palmyra Area School Board of Directors, :
Respondents :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: May 17, 2023
Before the Court are the preliminary objections of the Office of Open
Records (OOR), Goldstein Law Partners, LLC (GLP), and Palmyra Area School
District and various members of the District’s Board of Directors (District)1
1
The Board Members named in this action are: (1) Joshua Jones, Michael Koval, Mandy
Braden, Maryann Cini, Kayla Leiberher, and Alicia Brendle Haldeman, all of whom are named
both individually and in their official capacities as Board Members; and (2) Christine Fisher, Larry
Geib, and Suzann Gilligan, who are named in their official capacities only.
(collectively, Respondents) that were filed in response to Ralph Duquette’s pro se
petition for review.2 The petition seeks declaratory and injunctive relief as well as
mandamus with respect to how the Board conducted its public meeting at which
GLP was appointed as solicitor for the Board, and Duquette’s subsequent request for
records pursuant to the Right-to-Know Law (RTKL)3 regarding GLP’s appointment.
Respondents, in separate preliminary objections, assert that the petition should be
dismissed for multiple reasons, including failure to exhaust available statutory
remedies; lack of subject matter jurisdiction; and failure to state a claim upon which
relief can be granted (demurrer). See Pa.R.Civ.P. 1028(a). For the reasons that
follow, we sustain Respondents’ preliminary objections on the basis of failure to
exhaust and lack of jurisdiction. Accordingly, we dismiss the petition with
prejudice.
Background
The facts as alleged in the petition are as follows.4 Duquette is a
resident of the District and a former member of the Board. At issue herein is the
2
Duquette’s initial pleading is titled a Complaint for Writ of Mandamus, Declaratory
Judgment and Injunctive Relief. By Order issued April 1, 2022, the Court explained that we will
treat this filing as an original jurisdiction petition for review governed by Chapter 15 of the Rules
of Appellate Procedure.
3
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
4
Duquette attached the following documents as exhibits to the petition:
Exhibit A - Agenda for the Board’s December 2, 2021
Reorganization Meeting;
Exhibit B - Duquette’s December 6, 2021 RTKL Request (Request);
Exhibit C - December 6, 2021 email correspondence regarding the
Request;
Exhibit D - Agenda for the Board’s December 16, 2021 meeting;
Exhibit E - the District’s January 12, 2022 Response to the Request;
(Footnote continued on next page…)
2
Board’s December 2, 2021 public meeting, referred to in the petition as the
“Reorganization Meeting,” during which six candidates newly-elected to the Board
in the November 2021 general election were sworn into office.5 During the
Reorganization Meeting, the Board also voted to appoint GLP as its solicitor.
Duquette and another attendee attempted to address GLP’s appointment during the
Reorganization Meeting but were not permitted to do so. Duquette was, however,
able to read a statement setting forth his objections to the process of hiring GLP
during the Board’s next public meeting held on December 16, 2021. Pet. ¶ 30.
Exhibits F & G - Records provided by the District pursuant to the
Request;
Exhibits H & I - Duquette’s Appeal to OOR and position statement;
Exhibit J - OOR’s January 25, 2022 Official Notice of Appeal;
Exhibit K - Correspondence with OOR Appeals Officer Hartranft,
including the District’s February 3, 2022 Letter Brief;
Exhibits L, M & N - February 4, 2022 email correspondence with
Appeals Officer, including Duquette’s allegation of GLP’s conflict
of interest;
Exhibits O & P - GLP’s February 8, 2022 email correspondence to
Appeals Officer regarding verification requirement and Appeals
Officer’s response;
Exhibit Q - the District’s Amended Letter Brief with
Attestation/Affidavit;
Exhibit R - Duquette’s February 9, 2022 Supplemental Submission
to OOR;
Exhibit S - Duquette’s February 24, 2022 email correspondence to
Appeals Officer requesting stay; and
Exhibit T - various documents regarding Duquette’s appeal to OOR,
including email notification of OOR’s February 25, 2022 Final
Determination and appeal rights.
5
The six newly-elected Board members were Respondents Jones, Koval, Braden, Cini,
Leiberher, and Haldeman. Pet. ¶¶ 6-11, 17. We note that there is a discrepancy in the petition, as
at one point Duquette asserts that Respondent Haldeman was sworn in as a Board member prior
to the Reorganization Meeting. Compare Pet. ¶ 11 with ¶ 17.
3
Meanwhile, on December 6, 2021, Duquette submitted a RTKL request
to the District seeking documents and communications between and among the
Board Members “related to the selection, vetting and hiring of GLP.” Pet. ¶ 27. The
Request sought records for the time period from January 1, 2021, through the date
of the Request. Pet. ¶¶ 27 & 42; Pet. Ex. B. After invoking a 30-day extension,6 the
District responded by granting in part and denying in part the Request, explaining
that some of the communications were from individuals who were not yet employed
by the District and, therefore, do not qualify as public records under the RTKL.7
Duquette appealed to OOR, challenging the merits of the District’s
response and also arguing that GLP should be disqualified from representing the
District before OOR in this matter due to an alleged conflict of interest.8 On
February 24, 2022, Duquette submitted via email a request to stay OOR’s
determination of his appeal so that he could petition this Court for a writ of
mandamus with respect to GLP’s alleged conflict of interest. Pet. Ex. S. The
following day OOR issued its Final Determination denying Duquette’s request for a
stay; granting in part, denying in part, and dismissing as moot in part Duquette’s
6
See Section 902(b) of the RTKL, 65 P.S. § 67.902(b).
7
The District’s response did not invoke any of the exceptions provided in Section 708(b) of
the RTKL, 65 P.S. § 67.708(b). See Pet. ¶¶ 31 & 43; Pet. Ex. E.
8
Notably, Duquette requested that OOR seek an outside legal opinion regarding his allegation
that GLP had a conflict of interest precluding it from representing the District in the appeal. At
the heart of Duquette’s request is his assertion that in aiding the District and Board Members in
reviewing and responding to his Request, and representing them during the appeal, GLP acted as
legal counsel to individuals and entities who had or may have concurrent conflicts of interest. See
Pet. Ex. L; see also Pet. ¶¶ 36-38, 48. On February 4, 2022, the OOR Appeals Officer informed
Duquette that OOR would not be seeking an outside legal opinion on the conflict of interest issue.
See Pet. Ex. H.
4
appeal; and ordering the District to take further action as directed. Pet. Ex. T.9 The
Final Determination provided that, pursuant to Section 1302(a) of the RTKL, 65 P.S.
§ 67.1302(a), any party may appeal to the court of common pleas within 30 days.
No appeal was taken.
Petition and Preliminary Objections
Duquette filed his three-count petition, seeking a writ of mandamus as
well as declaratory and injunctive relief, on March 1, 2022. Specifically, Count I
seeks declarations from this Court that GLP cannot concurrently represent the
District, the Board, and Board Members before OOR due to alleged concurrent
conflicts of interest; the District violated the Sunshine Act10 and Duquette’s right to
free speech under the Pennsylvania Constitution11 by failing to allow public
comment at the Reorganization Meeting regarding the appointment of GLP as
solicitor, prior to the Board’s vote thereon; GLP’s attorneys have engaged and
continue to engage in acts that are contrary to their obligations pursuant to the Rules
of Professional Conduct;12 and OOR violated Duquette’s due process rights, engaged
in retaliation, and failed to adhere to its own guidelines by denying Duquette’s
request for a stay and prematurely issuing its Final Determination.
9
We note that while the petition references and relies upon OOR’s Final Determination, the
document is not included in the exhibits attached to the petition. The Final Determination is
attached as Exhibit 1 to OOR’s brief in support of its preliminary objections.
10
65 Pa.C.S. §§ 701-716.
11
See Pa. Const. art. I, § 7 (“The free communication of thoughts and opinions is one of the
invaluable rights of man, and every citizen may freely speak, write and print on any subject, being
responsible for the abuse of that liberty.”).
12
Pa.R.P.C. 1.0-8.5.
5
Count II seeks “a [w]rit of [m]andamus directing the District to lawfully
appoint all employees and contractors, including contractors for legal services,
with[in] the confines of the Sunshine Act[.]” Pet. at 27. It further seeks an order
directing OOR to disqualify GLP from representing multiple clients that have
concurrent conflicts of interest, and directing OOR to withdraw its Final
Determination. Finally, Count III requests unspecified injunctive relief.
OOR responded by filing preliminary objections13 asserting, inter
alia,14 that the petition should be dismissed because Duquette failed to exhaust his
available statutory remedy, namely his right to appeal OOR’s Final Determination
to common pleas. See Section 1302(a) of the RTKL, 65 P.S. § 67.1302(a). OOR
argues that Duquette’s requests for declaratory and injunctive relief are inappropriate
because he has available to him this adequate remedy at law. In addition, the petition
fails to state a claim with respect to OOR’s alleged failure to enforce the Rules of
Professional Conduct and refusal to grant a stay.
The District, in turn, filed preliminary objections on grounds of lack of
subject matter jurisdiction and demurrer. Specifically, the District maintains that
this Court lacks original jurisdiction because the District is a local rather than a
Commonwealth agency and the claims against it are not related or ancillary to a
claim or other matter within the Court’s exclusive original jurisdiction. See 42
13
We have reframed and reorganized the parties’ preliminary objections for clarity and ease
of analysis.
14
OOR’s preliminary objections also assert that it should be dismissed from this action
because Duquette failed to properly serve the agency either in person or by certified mail, and
because he had yet to make service upon the Attorney General. See 42 Pa.C.S. § 8523; Pa.R.A.P.
1514(c). In its brief in support, however, OOR acknowledges that Duquette has since properly
served the agency. See OOR’s Br. at 13-14. Given this delay in service, OOR’s preliminary
objections were timely filed.
6
Pa.C.S. § 761. Moreover, Duquette’s remedy for any perceived violation of the
Sunshine Act surrounding the Reorganization Meeting was to file a legal challenge
with common pleas within 30 days, which he failed to do. See 65 Pa.C.S. § 713.
Likewise, any claims with respect to the purported conflict of interest or how OOR
conducted its review can and should have been addressed through an RTKL appeal
to common pleas. See Section 1302(a) of the RTKL, 65 P.S. § 67.1302(a). GLP
filed preliminary objections similar to those of the District, as well as for insufficient
specificity and failure to conform to rule of law.
Before turning to the merits, we note initially that
[w]hen reviewing preliminary objections to a petition for
review in our original jurisdiction, this Court must treat as
true all well-pleaded, material and relevant facts together
with any reasonable inference[s] that can be drawn from
those facts. Courts, however, are not required to accept as
true conclusions of law, unwarranted inferences from
facts, expressions of opinion or argumentative allegations.
In ruling on a preliminary objection in the nature of a
demurrer, the objection is properly sustained where, based
on the facts averred, the law says with certainty that no
recovery is possible; if doubt exists, then it should be
resolved in favor of overruling the objection.
Cnty. of Berks v. Pa. Off. of Open Rec., 204 A.3d 534, 539 n.7 (Pa. Cmwlth. 2019)
(citations omitted). Further, “‘courts reviewing preliminary objections may not only
consider the facts pled in the [petition for review in the nature of a] complaint, but
also any documents or exhibits attached to it.’ Allen v. Dep’t of Corr., 103 A.3d
365, 369 (Pa. Cmwlth. 2014).” Foxe v. Pa. Dep’t of Corr., 214 A.3d 308, 310 n.1
(Pa. Cmwlth. 2019).
Discussion
We begin with the preliminary objections of OOR, specifically that of
failure to exhaust an available statutory remedy. Because OOR “falls within the
7
statutory definition of ‘Commonwealth government’” it is subject to this Court’s
original jurisdiction “in any action properly brought against it.” Off. of Governor v.
Donahue, 98 A.3d 1223, 1233 (Pa. 2014) (emphasis added); see also Section 761(a)
of the Judicial Code, 42 Pa.C.S. § 761(a). However, “[a] party may not seek judicial
resolution of a dispute until he or she has exhausted available statutory or
administrative remedies.” Martel v. Allegheny Cnty., 216 A.3d 1165, 1172 (Pa.
Cmwlth. 2019) (citations omitted). Moreover, “the doctrine of exhaustion of
remedies is codified in the Declaratory Judgments Act, [42 Pa.C.S. §§7531-7541,]
which provides that declaratory relief ‘shall not be available . . . with respect to any
. . . [p]roceeding involving an appeal from an order of a tribunal.’” Cnty. of Berks,
204 A.3d at 540 [quoting Section 7541(c)(3) of the Declaratory Judgments Act, 42
Pa.C.S. § 7541(c)(3)].
The doctrine “reflects a recognition of the general
assembly’s directive of strict compliance with statutorily
prescribed remedies” and it also acknowledges that “an
unjustified failure to follow the administrative scheme
undercuts the foundation upon which the administrative
process was founded.” Jordan v. Fayette C[n]ty. Bd. of
Assessment Appeals, 782 A.2d 642, 646 (Pa. Cmwlth.
2001)[]. If a party fails to pursue a statutory remedy, the
court is without power to act until the statutory remedies
have been exhausted, even in cases where a constitutional
question is presented. Muir v. Alexander, 858 A.2d 653,
660 (Pa. Cmwlth. 2004).
Martel, 216 A.3d at 1172.
While a party’s failure to exhaust statutory remedies “normally bars this
Court from hearing claims of declaratory or injunctive relief with respect to agency
action, ‘the exhaustion doctrine is neither inflexible nor absolute.’” Cnty. of Berks,
204 A.3d at 540 [quoting Keystone ReLeaf LLC v. Pa. Dep’t of Health, 186 A.3d
8505, 513 (Pa. Cmwlth. 2018) (en banc)]. The three exceptions to the exhaustion
doctrine recognized by our courts are “where (1) the jurisdiction of an agency is
challenged, (ii) the constitutionality of the statute is challenged[,] or (iii) the remedy
at law is inadequate.” Cnty. of Berks, 204 A.3d at 540 (citations omitted).
Despite Duquette’s attempt to characterize them otherwise, his claims
and requests for relief with respect to OOR stem from the agency’s issuance of its
Final Determination. In particular, he seeks an order from this Court declaring that
OOR violated his rights and its own procedural guidelines by issuing the Final
Determination; vacating the Final Determination; and remanding for further
proceedings. Duquette could have obtained such relief by appealing the Final
Determination to common pleas. See Section 1302(a) of the RTKL, 65 P.S. §
67.1302(a) (appeal of OOR decision pertaining to request made to a local agency,
such as the District here, is to be brought in court of common pleas where the local
agency is located); see also Cnty. of Berks, 204 A.3d at 540 (noting the same
principle). Duquette chose not to do so, despite being informed of his appeal rights,
and this Court cannot sanction his attempt to circumvent the clear mandate of the
RTKL. Moreover, the fact that Duquette has also requested relief in the nature of
mandamus, in addition to declaratory and injunctive relief, does not vest original
jurisdiction in this Court. See Avis Rent A Car Sys., Inc. v. Dep’t of State, 507 A.2d
893, 896 (Pa. Cmwlth. 1986) [citing Pa. Dep’t of Aging v. Lindberg, 469 A.2d 1012,
1018 (Pa. 1983)].
Duquette also fails to explain how this statutory remedy is inadequate,
nor could he since the RTKL provides him with a right to a de novo appeal. See
Bowling v. Off. of Open Rec., 75 A.3d 453, 477 (Pa. 2013); see also Sherry v. Radnor
Twp. Sch. Dist., 20 A.3d 515, 520 (Pa. Cmwlth. 2011) (noting “reviewing court has
9
discretion to determine if the record created before OOR is sufficient for purposes
of judicial review” and can “supplement[] the record through a hearing or remand”).
Simply put, Duquette’s blanket assertion that he has no other adequate remedy at
law is without merit and the instant action does not fall within an exception to the
exhaustion doctrine. As such, we sustain OOR’s preliminary objection for failure to
exhaust and decline to address Duquette’s original jurisdiction claims against the
agency.15 See Cnty. of Berks, 204 A.3d at 540 (concluding requester’s claim did “not
fall into the class of disputes that would allow this Court to assume original
jurisdiction over the claim and bypass the traditional appeal to the court of common
pleas of an OOR determination concerning the records of a local agency”); Guarrasi
v. Scott, 25 A.3d 394, 405 (Pa. Cmwlth. 2011) (because plaintiff failed to appeal
RTKL decisions, the court declined to address his original jurisdiction claims that
those decisions violated his common law and constitutional rights); see also Avis.16
15
As this Court cautioned in County of Berks, we
must also be mindful that accepting a matter in this Court’s original
jurisdiction confers an appeal as of right to the Supreme Court to the
detriment of the efficient administration of justice and “would
crowd cases involving important and unique issues from [the High
Court’s] allocator docket.” Gossman v. Lower Chanceford Twp. Bd.
of Supervisors, [] 469 A.2d 996, 998 ([Pa. ]1983); see also Miles v.
Beard, 847 A.2d 161, 165 (Pa. Cmwlth. 2004).
204 A.3d at 540 n.10.
16
Even if Duquette had exhausted his statutory remedy, the claims he asserts against OOR
fail as a matter of law. First, there is no right to a stay under the RTKL; rather, such procedural
issues are within the discretion of the appeals officer. See Section 1102 of the RTKL, 65 P.S. §
67.1102 (setting forth duties of appeals officer, including ruling “on procedural matters on the
basis of justice, fairness and the expeditious resolution of the dispute”); Cnty. of Berks, 204 A.3d
at 546 (noting appeals officers are responsible for adjudicating appeals, including ruling on
evidentiary and procedural matters); Bowling, 75 A.3d at 467 (“the RTKL grants appeals officers
(Footnote continued on next page…)
10
We further conclude that this Court lacks jurisdiction over Duquette’s
claims against the District and GLP. The District, and by extension its Board, is not
an agency of the Commonwealth but a local agency and, therefore, is not subject to
this Court’s original jurisdiction. See Borough of Hummelstown v. Lower Dauphin
Sch. Dist., 357 A.2d 727, 729 (Pa. Cmwlth. 1976). We similarly lack original
jurisdiction over GLP, a private entity. Further, “the Court cannot assert ancillary
jurisdiction over this matter [under 42 Pa.C.S. § 761(c)] unless it is related to a claim
or other matter otherwise within [our] exclusive original jurisdiction.” Reliance Ins.
Co. v. Aramark Corp., 38 A.3d 958, 967 (Pa. Cmwlth. 2011). Because we have
granted OOR’s preliminary objection as to all of Duquette’s claims, that agency
cannot serve to provide ancillary jurisdiction over the District and GLP. See Bowers
v. T-Netix, 837 A.2d 608 (Pa. Cmwlth. 2003) (finding that because Court dismissed
all claims against the Department of Corrections, it no longer had a basis for
exercising ancillary jurisdiction over private communications company).
Duquette’s claims against the District and GLP stem from purported
violations of the Sunshine Act and, as such, jurisdiction is properly vested in
common pleas. See 65 Pa.C.S. § 715 (court of common pleas where local agency is
located has jurisdiction). Generally speaking, the Judicial Code provides that if a
matter is misfiled in a court that lacks jurisdiction, the matter should be transferred
wide discretion with respect to procedure”); see also Sherry, 20 A.3d at 519 (“noting that neither
the RTKL nor the courts have extended a . . . right to due process to a requesting party in a RTKL
action”). Therefore, Duquette’s claim for declaratory relief regarding OOR’s decision denying his
request for a stay lacks merit.
In addition, OOR lacks the authority to adjudicate alleged violations of the Rules of
Professional Conduct as that power belongs exclusively to our Supreme Court and its Disciplinary
Board. See, e.g., Commonwealth v. Stern, 701 A.2d 568, 572 (Pa. 1997) [citing Pa. Const. art. V,
section 10(c)]; Pa.R.D.E. 103 & 201(a). As such, OOR could not have barred GLP from
representing the District in this matter based upon Duquette’s allegation of conflicts of interest,
and this Court cannot order OOR to do so.
11
to the proper tribunal rather than quashed. 42 Pa.C.S. § 5103(a). Here, however,
transfer would be futile since a legal challenge under the Sunshine Act must be filed
within 30 days of the open meeting at issue. 65 Pa.C.S. § 713. The Reorganization
Meeting where GLP was appointed solicitor for the Board took place on December
2, 2021, and the present action was not instituted until March 1, 2022, making
Duquette’s claims untimely.17
Conclusion
Based on the foregoing, we sustain the preliminary objections of OOR,
the District, and GLP for failure to exhaust statutory remedies and lack of
jurisdiction, and we dismiss the petition in its entirety, with prejudice.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
17
Given the above conclusions, we need not reach the remaining preliminary objections.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ralph Duquette, :
Petitioner :
:
v. : No. 84 M.D. 2022
:
Office of Open Records, Palmyra Area :
School District, Goldstein Law Partners, :
LLC, Joshua Jones, Michael Koval, Mandy :
Braden, Maryann Cini, Kayla Leiberher, :
Alicia Brendle Haldeman, Individually and :
in their official capacity as Members of the :
Palmyra Area School Board of Directors, :
and Christine Fisher, Larry Geib and Suzann :
Gilligan in Their Roles as Members of the :
Palmyra Area School Board of Directors, :
Respondents :
ORDER
AND NOW, this 17th day of May, 2023, the Preliminary Objections of
Respondents as to failure to exhaust statutory remedies and lack of jurisdiction are
SUSTAINED. The Petition for Review is DISMISSED with prejudice.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita