City of Philadelphia v. C.A. Barosh

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
:
v. : No. 767 C.D. 2017
: SUBMITTED: March 2, 2018
Christopher A. Barosh, :
Appellant :
City of Philadelphia :
:
v. : No. 768 C.D. 2017
:
Christopher A. Barosh, :
Appellant :
Christopher A. Barosh, :
Appellant :
:
v. : No. 769 C.D. 2017
:
City of Philadelphia :
City of Philadelphia :
:
v. : No. 770 C.D. 2017
:
Christopher A. Barosh, :
Appellant :
OPINION NOT REPORTED
PER CURIAM
MEMORANDUM OPINION FILED: May 9, 2018
Christopher A. Barosh (Barosh) appeals, pro se, from an order of the
Court of Common Pleas of Philadelphia County (trial court) ruling on two petitions
for review from multiple final determinations of the Pennsylvania Office of Open
Records (OOR)1 rendered pursuant to the Right-to-Know Law (RTKL).2
Specifically, the trial court:
(1) denied Barosh’s petition for review thereby
affirming the OOR’s determination denying his appeal
from the City of Philadelphia’s (City) denial of his request
for the financial interest statements and oaths of office of
two assistant district attorneys involved in the actions
leading to his arson conviction; and
(2) granted the City’s petition for review thereby
determining that none of the remaining records requested,
excluding those that the City elected to provide to Barosh
in the interim,3 were subject to disclosure and reversing the
OOR’s determinations in that regard.4
We affirm.
In pertinent part, the background of the above appeals is as follows. In
July 2005, Barosh purchased a house on behalf of his girlfriend. On the deed, the
1
The trial court consolidated these matters (CP Case Nos. 161001127, 160204598,
160204601, and 160204602) in June 2016 and, subsequently, issued a single opinion. In October
2017, we issued a sua sponte order consolidating the appeals at the above docket numbers.
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 - 67.3104.
3
The City asserts that it provided Barosh with some of the documents that he requested.
(City’s Brief at 11.) In addition, Barosh acknowledges that the City provided him with its Fire
Code.
4
In the underlying determinations, the OOR granted in part (procedure manuals and policies
regarding fire investigations and E.M.S.) and denied in part (documents with information relating
to city employees involved in investigation resulting in the arson conviction) Barosh’s appeal of
the City’s denial of those requests. Further, the OOR granted in part and denied in part Barosh’s
appeal of the City’s denial of his request for records relating to the transfer of evidence from its
fire to its police department (City directed to provide Barosh with a blank copy of forms). Finally,
the OOR granted Barosh’s appeal of the City’s denial of his request for its Fire Code.
Regarding the Fire Code, the City filed a July 2016 praecipe to discontinue its appeal of the
OOR’s directive to provide Barosh with that document. Consequently, to the extent that the trial
court included that appeal in its consolidated determination, we conclude that it was harmless error
and find it unnecessary to consider Barosh’s assertion that it abused its discretion or lacked
jurisdiction to open a closed right-to-know appeal and reverse the disclosure of public documents.
Accordingly, we do not include that part of the trial court’s decision in our affirmance.
2
girlfriend was listed as the buyer and Barosh as her power of attorney. In September
2005, he submitted an application for a homeowners’ insurance policy with Allstate
Insurance Company. Subsequently, Allstate discovered several reasons why the
house did not qualify for a specified type of policy and notified the girlfriend of an
impending cancellation and the effective date. Approximately one day after
cancellation, someone set the house on fire. Ultimately, a jury convicted Barosh of
arson and insurance fraud, and a judge ordered that he serve consecutive sentences.
In 2014, Barosh initiated civil litigation against individuals who were
witnesses in his criminal case or somehow related to the property. When he filed
numerous subpoenas seeking information from the City and third parties, a judge
quashed his requests and entered successive protective orders. (Feb. 14, 2017, Trial
Court Opinion at 2-3; Supplemental Reproduced Record (S.R.R.) at 3b-4b.) In the
order apropos to the present case, a judge granted the request of the City’s fire
department for a protective order citing Barosh’s engagement “in a pattern of
unreasonable annoyance, embarrassment, oppression, burden and/or expense in the
service of repeated requests for information from the City of Philadelphia[.]” (Nov.
24, 2015, Order in Barosh v. Tarmin, CP No. 0790, Dec. Term 2014; S.R.R. at 23b-
24b.) Subsequently, the case was discontinued.
In any event, during that civil litigation, Barosh “nearly simultaneously
filed a PCRA [Post Conviction Relief Act5] Petition and began his barrage of RTKL
requests to the City of Philadelphia.” (Feb. 14, 2017, Trial Court Opinion at 3; S.R.R
at 4b.) Specifically, he filed 11 RTKL requests directed to the fire department
therein seeking 33 separate items all related to the period underpinning his
convictions. In 2015, the City denied his requests. Barosh appealed, the OOR issued
5
42 Pa. C.S. §§ 9541 - 9546.
3
final determinations, and the trial court concluded that the City properly denied his
requests because (1) he could not use the RTKL to support his PCRA petition, and
(2) his requests fell within the purview of the protective order issued in Barosh v.
Tarmin. Barosh’s appeal followed.6
Barosh raises the following issues on appeal:7 (1) whether the trial
court erred in holding that the non-disclosure of public documents could be based
on the identity of the requester and purpose of his request; (2) whether it erred in
relying on a protective order rendered in a collateral and discontinued case; and (3)
whether it erred in failing to recuse for bias, prejudice or some conflict of interest.
On review, we are mindful that “[a] record in the possession of a . . . local agency
shall be presumed to be a public record” under Section 305(a) of the RTKL, 65 P.S.
§ 67.305(a). Further, an agency is required to provide any citizen access to any
“public record” that is not (a) exempt from disclosure under Section 708 of the
RTKL, 65 P.S. § 67.708, or any other federal or state law or regulation or judicial
order or decree, or (b) protected by some privilege. Section 102 of the RTKL, 65
P.S. § 67.102.
6
Where a final determination of the OOR involving a local agency has been appealed to the
trial court and its order is further appealed to this Court, we are limited to determining whether the
trial court committed an error of law, violated constitutional rights, or abused its discretion.
McClintock v. Coatesville Area Sch. Dist., 74 A.3d 378, 381 n.8 (Pa. Cmwlth. 2013). This Court’s
scope of review for a question of law is plenary. Id.
7
In his Concise Statement of Errors Complained of on Appeal, Barosh failed to challenge the
trial court’s determination that the PCRA prohibited disclosure of the records that he sought. (Mar.
15, 2017, Concise Statement at 1-2; S.R.R. at 165b-66b.) Accordingly, we will not address any of
his averments in that regard. See Pa. R.A.P. 1925(b)(4)(vii) (issues not included in the concise
statement are waived).
Moreover, even though the City in the underlying OOR cases asserted three exemptions
relating to security and/or safety (Section 708(b)(1)-(3) of the RTKL, 65 P.S. § 67.708(b)(1)-(3)),
the trial court did not address them. Accordingly, especially in light of Barosh’s failure to include
an issue pertaining to those exemptions in his concise statement, we decline to address any
assertions that he made regarding the inapplicability of those exemptions.
4
In the present case, the trial court obviously considered Barosh’s
identity as a convicted arsonist and his possible misuse of some of the requested
items. Barosh argues that it erred in doing so, maintaining that if the same
documents can be disclosed as public records via an anonymous RTKL request, then
it was improper to deny him access. His position is without merit.
Section 302(b) of the RTKL provides that “[a] local agency may not
deny a requester access to a public record due to the intended use of the public record
by the requester unless otherwise provided by law.” Section 302(b) of the RTKL,
65 P.S. § 67.302(b) (emphasis added). Section 102 of the RTKL, in pertinent part,
defines “public record” as a record of a local agency that “is not exempt from being
disclosed under any . . . judicial order or decree[.]” As exemplified by the protective
order issued in Barosh’s discontinued civil litigation, these two statutory provisions
support the trial court’s consideration of his identity as a convicted arsonist and the
perceived purpose of his RTKL requests.
Moreover, contrary to Barosh’s position, a protective order may act to
prevent disclosure of public records responsive to a RTKL request. Office of Dist.
Attorney v. Bagwell, 155 A.3d 1119, 1139 (Pa. Cmwlth.), appeal denied, 174 A.3d
560 (Pa. 2017). This is true notwithstanding the fact that “[d]iscovery conducted in
a court of law and a request made under the RTKL are wholly separate processes”
and that, “[i]t is only in rare circumstances . . . that a judicial order or decree
governing discovery in litigation will act to prevent disclosure of public information
responsive to a RTKL request[.]” Id. Here, the trial court found such circumstances.
Specifically regarding the situation under which a judge entered the
protective order at issue, the trial court observed that it was entered in favor of the
City, its fire department, and any other agency or department of the City against
5
Barosh and anyone acting on his behalf, regarding any and all information or
documents mentioning or pertaining to various people involved in the fire, the
duplex involved in the fire, “City employees, investigators, and/or witnesses
connected with, related to, or involved with, in any way, the underlying
investigations, incidences, actions, inactions, occurrences, or hearing(s) that led to
[Barosh’s] conviction for arson and/or insurance fraud.” (Nov. 24, 2015, Order in
Barosh v. Tarmin, CP No. 0790, Dec. Term 2014 at 2; S.R.R. at 24b.) The trial court
determined that Barosh’s requests were within the purview of the protective order,
which “was entered upon full briefing in which [his] multiple RTKL requests were
presented to the issuing Court and upon [its] finding that [he] had engaged in a
pattern of oppressive conduct towards the City and other third parties who were
involved in his arson conviction.” (Feb. 14, 2017, Trial Court Opinion at 7; S.R.R.
at 8b.)
Further, the fact that a judge issued the protective order in collateral
litigation, which is now closed, is of no moment. The issue of Barosh’s pattern of
oppressive conduct toward some of the prosecution’s witnesses and others and his
motive in seeking information pertaining to the fire, all centering on the arson
conviction, was already litigated and, therefore, binding on Barosh. See J.S. v.
Bethlehem Area Sch. Dist., 794 A.2d 936, 939 (Pa. Cmwlth. 2002) (holding, in part,
that collateral estoppel applies where an issue decided in a prior action is identical
to one presented in a later action and the party against whom collateral estoppel is
asserted is in privity with a party to the prior action). Accordingly, notwithstanding
the fact that Barosh discontinued that civil litigation, we find that the trial court did
not err in relying on the protective order at issue.
6
Finally, Barosh argues that the City collectively misled the trial court
thereby causing bias and prejudice sufficient to warrant the judge’s recusal. In
addition, he suggests that the court improperly reopened a closed case and that its
opinion reflects personal bias, disregard for cases in other courts, and a close
relationship with the local agency. Having carefully reviewed the trial court’s
opinion, however, we conclude that there is no basis for Barosh’s allegations.8
Accordingly, we affirm.
8
See supra note 4, at 2.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
:
v. : No. 767 C.D. 2017
:
Christopher A. Barosh, :
Appellant :
City of Philadelphia :
:
v. : No. 768 C.D. 2017
:
Christopher A. Barosh, :
Appellant :
Christopher A. Barosh, :
Appellant :
:
v. : No. 769 C.D. 2017
:
City of Philadelphia :
City of Philadelphia :
:
v. : No. 770 C.D. 2017
:
Christopher A. Barosh, :
Appellant :
PER CURIAM ORDER
AND NOW, this 9th day of May, 2018, the order of the Court of
Common Pleas of Philadelphia County is hereby AFFIRMED.