M. Sawicki v. D.W. Wessels

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marianne Sawicki, :
Appellant :
:
v. : No. 1046 C.D. 2021
:
David W. Wessels, in his official :
capacity as Open Records Officer :
of Borough of Huntingdon : Submitted: September 23, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: December 19, 2022
Currently before us is Appellant Marianne Sawicki’s (Sawicki)1 pro se appeal,
in which she challenges an order issued by the Court of Common Pleas of
Huntingdon County (Common Pleas) on August 25, 2021. Through that order,
Common Pleas dismissed Sawicki’s mandamus action against Appellee David W.
Wessels, in his official capacity as Open Records Officer of Borough of Huntingdon
(Wessels); declined Sawicki’s request to award her attorney’s fees, costs of
1
Sawicki was, until recently, an active, Pennsylvania-licensed attorney; however, she
apparently retired from the practice of law at some point subsequent to February 24, 2022, the date
upon which she filed her reply brief with our Court. See Sawicki’s Reply Br. at 15 (Sawicki
identifying herself as “Marianne Sawicki, Esquire”); THE DISCIPLINARY BOARD OF THE SUPREME
COURT OF PENNSYLVANIA, https://www.padisciplinaryboard.org/for-the-public/find-attorney/
attorney-detail/313471 (last visited Dec. 19, 2022) (stating that Sawicki’s law license is currently
retired).
litigation, and monetary penalties pursuant to the Right-to-Know Law (RTKL);2 and
denied Sawicki’s motion for sanctions against Wessels. After thorough review, we
affirm Common Pleas’ order in part and vacate and remand that order in part.
I. Background
On October 1, 2020, Sawicki filed a pro se request with the Borough of
Huntingdon (Borough) seeking the following records:3
1. Any invoices submitted to the Borough for expenses or
for professional services by the Borough solicitor during
the relevant time[, i.e., between August 1, 2019, and June
30, 2020],[] including but not limited to itemized phone
bills.
2. Any records of payments by the Borough to its solicitor
during the relevant time.
3. Any correspondence sent by the Borough to its solicitor
or received by the Borough from its solicitor during the
relevant time that mentions Barbara Kissinger, in any
medium, including but not limited to paper, facsimile . . .
, and electronic mail, with any attachments and enclosures.
4. Any correspondence sent by the Borough to its solicitor
or received by the Borough from its solicitor during the
relevant time that mentions . . . Sawicki, in any medium. .
..
5. Any correspondence sent by the Borough, or on behalf
of the Borough by its solicitor, to the Area Agency on
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
3
“Record” is defined in Section 102 of the RTKL as:
Information, regardless of physical form or characteristics, that
documents a transaction or activity of an agency and that is created,
received or retained pursuant to law or in connection with a
transaction, business or activity of the agency. The term includes a
document, paper, letter, map, book, tape, photograph, film or sound
recording, information stored or maintained electronically and a
data-processed or image-processed document.
65 P.S. § 67.102.
2
Aging or to Huntingdon County or Huntingdon County’s
solicitor, judicial officers, law enforcement officers, or
other agents, during the relevant time, that mentions
Barbara Kissinger, in any medium. . . .
6. Any correspondence sent by the Borough, or on behalf
of the Borough by its solicitor, to the Area Agency on
Aging or to Huntingdon County or Huntingdon County’s
solicitor, judicial officers, law enforcement officers, or
other agents, during the relevant time, that mentions . . .
Sawicki, in any medium....
7. Any correspondence received by the Borough, or on
behalf of the Borough by its solicitor, from the Area
Agency on Aging or from Huntingdon County or
Huntingdon County’s solicitor, judicial officers, law
enforcement officers, or other agents, during the relevant
time, that mentions Barbara Kissinger, in any medium. . .
.
8. Any correspondence received by the Borough, or on
behalf of the Borough by its solicitor, from the Area
Agency on Aging or from Huntingdon County or
Huntingdon County’s solicitor, judicial officers, law
enforcement officers, or other agents, during the relevant
time, that mentions . . . Sawicki, in any medium. . . .
9. Any records of the Borough police department that
mention Barbara Kissinger during the relevant time,
including but not limited to incident report number 19-
0001492.
10. Any notes or logs of any conversations between the
Borough and the Borough solicitor during the relevant
time, including but not limited to telephonic conversations
and face-to-face conversations, that mention Barbara
Kissinger.
11. Any notes or logs of any conversations between the
Borough and the Borough solicitor during the relevant
time, including but not limited to telephonic conversations
and face-to-face conversations, that mention . . . Sawicki.
12. Any correspondence sent by the Borough, or by the
Borough’s solicitor, to the Disciplinary Board of the
Supreme Court of Pennsylvania, during the relevant time,
in any medium. . . .
3
13. Any correspondence received by the Borough, or by
its solicitor, from the Disciplinary Board of the Supreme
Court of Pennsylvania, during the relevant time, in any
medium. . . .
14. Any notes or logs of any conversations between
Borough staff or other agents and the Disciplinary Board
of the Supreme Court of Pennsylvania, including but not
limited to telephonic conversations and face-to-face
conversations.
Office of Open Records (OOR) Final Determination (Determination) at 1-3
(footnote omitted); Reproduced Record (R.R.) at 5a-7a. The Borough did not
respond to Sawicki’s request within five business days and, as such, the request was
deemed denied as of October 8, 2020. OOR Determination at 3; R.R. at 7a; see 65
P.S. § 67.901.
On October 15, 2020, Sawicki appealed the Borough’s deemed denial of her
request to the OOR. OOR Determination at 3; R.R. at 7a. Four days later, Borough
personnel notified Sawicki that they had compiled 213 pages of records in response
to her request, which would be available for her to pick up at the Borough’s main
office. OOR Determination at 3; R.R. at 7a; Sawicki’s Br. in Support of Peremptory
Judgment Awarding Relief Under Sections 1304 & 1305 of RTKL, Ex. 4. In
addition, Wessels informed Sawicki via letter on October 19, 2020, that he had
granted Items 1 and 2 of her request, in full. R.R. at 116a.
However, [Wessels also notified Sawicki that he had]
denied [her request regarding] some records responsive to
Items 3-8, arguing that those records [were] protected by .
. . attorney-client privilege or [were] internal,
predecisional, and deliberative, see 65 P.S. §
67.708(b)(10)(i), related to a noncriminal investigation,
see 65 P.S. § 67.708(b)(17), and/or reflect[ed]
communications between the Borough and its insurance
carrier, see 65 P.S. § 67.708(b)(27). [Additionally,
Wessels] assert[ed] that no records responsive to Items 10-
14 exist[ed], and that the Huntingdon County District
4
Attorney’s Office . . . would be the agency best positioned
to respond to Items 5-9 to the extent [Sawicki sought]
criminal records [through those portions of her request].[]
On December 4, 2020, . . . the Borough [informed the
OOR] that it had provided [Sawicki] “with all the
requested material that is lawfully permitted.”
OOR Determination at 3-4 (footnote omitted). On December 16, 2020, the OOR
dismissed Sawicki’s appeal in part, with regard to the responsive records the
Borough had already provided to Sawicki; granted it in part, on the basis that the
Borough had failed to present any evidence to support its claims; and dismissed it in
part for lack of jurisdiction, to the extent that Sawicki had sought judicial records.
Id. at 9a-11a. Accordingly, the OOR ordered the Borough “to produce all additional
responsive records that are not judicial records within thirty days.” Id. at 11a. Of
note, the OOR made clear that it had not conclusively determined whether any
additional, responsive records actually remained to be released, as it “[was] mindful
that an agency cannot produce records that do not exist within its ‘possession,
custody or control’ and, accordingly, [that it was] not ordering the creation of any
records.” Id. at 10a n.6. Instead, the OOR stated that its ruling was based upon its
general policy that, “[a]bsent an agency providing a sufficient evidentiary basis that
no responsive records exist, the OOR will order disclosure of responsive public
records.” Id. at 10a-11a n.6. Neither the Borough nor Sawicki appealed the OOR’s
Determination.
Thereafter, on January 4, 2021, Wessels sent Sawicki a “Certification,” in
which he provided an update regarding his efforts to fulfill her request. Id. at 119a-
20a. In relevant part, Wessels stated therein:
4. Upon receipt of the request, I conducted a thorough
examination of files in the possession, custody and control
of the [Borough] for records responsive to the request
underlying this appeal, specifically, I researched records
5
responsive to your October 1, 2020 request[], [Items] 3-9
and 10-14.
5. Additionally, I have inquired with relevant [Borough]
personnel and, the Huntingdon Borough Solicitor
regarding whether additional files exist other than the
documents that were originally provided that were not
subject to attorney-client privilege or other privilege or
exception to the [RTKL].
6. After conducting a good faith search of the [Borough’s]
files, there are no additional records during the requested
time[]period that are responsive to your requests. By way
of further response, I hereby certify and attest that the
[Borough], its personnel, and its Solicitor had no contact
or communication whatsoever with the Pennsylvania
Disciplinary Board of the Supreme Court of Pennsylvania
concerning you or your conduct during the period in
question.
7. The responsive records have been previously provided
to you.
8. I certify that the documents which were previously
provided are a complete and true copy of the original
responsive records.
Id.
Despite Wessels’ attestation that the Borough had already provided Sawicki
with all of the responsive records, she elected to file suit against him in his official
capacity on January 25, 2021. In her Complaint, Sawicki averred that the Borough
had violated the terms of the OOR’s Determination by “refus[ing] to produce the
additional records responsive to Items 3 through 8 [of her request.]” Complaint, ¶19.
Accordingly, Sawicki requested that Common Pleas issue a writ of mandamus
compelling Wessels to disgorge those additional records; declare that the Borough
had acted in bad faith under the RTKL by failing to fully comply with the OOR’s
directive; assess a civil penalty against Wessels pursuant to the RTKL; award her
monetary damages; and grant any other relief that Common Pleas “deem[ed] to be
6
fair and just.” Id., Wherefore Clause. Wessels responded by submitting an Answer
with New Matter on February 10, 2021, in which he repeatedly reasserted that he
had already provided Sawicki with all responsive records and, in addition, raised a
number of affirmative defenses. See Answer with New Matter, ¶¶5, 14, 19, 30-35.
Thereafter, Sawicki replied to Wessels’ Answer with New Matter on February 16,
2021.
Common Pleas then convened a hearing on April 13, 2021, but ultimately
adjourned the proceeding without making any rulings. In doing so, Common Pleas
gave the parties a chance to see whether they could agree to a joint stipulation that
would, in effect, enable Common Pleas to confine its fact-finding to determining
whether the Borough had exhibited bad faith during its handling of Sawicki’s
request. See R.R. at 43a-47a. It is unclear whether this effort was entirely successful,4
as, on April 19, 2021, Sawicki submitted a Motion for Sanctions against Wessels
and his former counsel.5 Therein, Sawicki contended that Common Pleas should
impose sanctions pursuant to Pennsylvania Rules of Civil Procedure 1023.1 and
1023.2,6 because, in her view, Wessels’ Answer with New Matter was replete with
4
Common Pleas stated in its November 24, 2021 opinion that, “[t]he parties were unable
in court to agree to the language for a stipulation but agreed to keep working on a means to resolve
the question of the nonexistence of responsive records. By letter dated April 19, [2021,] Sawicki
informed [Common Pleas] that ‘the parties agreed that this question could be resolved through
unsworn declarations under 18 Pa. C.S. [§] 4904.’” Common Pleas Op., 11/24/21, at 6. Sawicki’s
letter is not present in either Sawicki’s Reproduced Record or the original record certified to this
Court by Common Pleas.
5
Wessels’ original counsel, who had been responsible for filing the Answer with New
Matter, withdrew from this matter on March 11, 2021, and was simultaneously replaced by another
attorney. See Withdrawal of Appearance/Entry of Appearance, 3/11/21, at 1.
6
Pennsylvania Rule of Civil Procedure 1023.1 states, in relevant part:
(Footnote continued on next page…)
7
unsupported factual averments and baseless legal arguments, many of which related
to the existence (or nonexistence) of additional responsive records. Mot. for
Sanctions, ¶¶6-51, Wherefore Clause.
Common Pleas then held a second hearing on June 21, 2021. At the outset,
Sawicki stated that she was satisfied that “the issue of whether any[ ]more records
(c) The signature of an attorney or pro se party constitutes a
certificate that the signatory has read the pleading, motion, or other
paper. By signing, filing, submitting, or later advocating such a
document, the attorney or pro se party certifies that, to the best of
that person’s knowledge, information and belief, formed after an
inquiry reasonable under the circumstances,
(1) it is not being presented for any improper purpose, such
as to harass or to cause unnecessary delay or needless
increase in the cost of litigation,
(2) the claims, defenses, and other legal contentions therein
are warranted by existing law or by a nonfrivolous argument
for the extension, modification or reversal of existing law or
the establishment of new law,
(3) the factual allegations have evidentiary support or, if
specifically so identified, are likely to have evidentiary
support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual allegations are warranted on the
evidence or, if specifically so identified, are reasonably
based on a lack of information or belief.
(d) If, after notice and a reasonable opportunity to respond, the court
determines that subdivision (c) has been violated, the court may,
subject to the conditions stated in [Pennsylvania] Rules [of Civil
Procedure] 1023.2 through 1023.4, impose an appropriate sanction
upon any attorneys, law firms and parties that have violated
subdivision (c) or are responsible for the violation.
Pa. R.Civ.P. 1023.1. As for Pennsylvania Rule of Civil Procedure 1023.2, it provides, in relevant
part, that “[a]n application for sanctions under this rule shall be made by motion, shall be made
separately from other applications and shall describe the specific conduct alleged to violate
[Pennsylvania] Rule [of Civil Procedure] 1023.1(c).” Pa. R.Civ.P. 1023.2(a).
8
exist is moot[,]” due to Wessels’ production of affidavits from several Borough staff,
each of whom had attested that there were no additional responsive records left for
the Borough to divulge to Sawicki. R.R. at 48a-49a. Nevertheless, Sawicki
maintained that she was still entitled to attorney’s fees, civil penalties, and costs of
litigation under the RTKL, as well as to have Common Pleas grant her Motion for
Sanctions. See R.R. at 49a-98a. Of particular note, Sawicki disputed Common Pleas’
assertion that she was representing herself pro se, insisting instead that “[she was]
not a pro se litigant[,]” that “[she was appearing in court] as [her] law office[,]” and
that “[her] law office is a separate entity from [her as an individual].” Id. at 60a.
Sawicki even went so far as to refer to herself in the third person, in an attempt to
distinguish “[her] client, Marianne Sawicki” from her role as the principal “of the
law office representing Marianne Sawicki” in the matter. See id. at 80a; see also id.
at 67a-70a, 73a, 97a-98a. Common Pleas was not swayed by Sawicki’s arguments
and, on August 25, 2021, issued an order denying Sawicki’s request for attorney’s
fees, civil penalties, and costs of litigation pursuant to the RTKL, as well as her
Motion for Sanctions, and dismissed her mandamus action. This appeal to our Court
followed shortly thereafter.7
II. Discussion
Sawicki offers several arguments for our consideration, which we have
reordered and summarized as follows. First, Common Pleas’ implicit conclusion that
the Borough produced all responsive records in October 2020 is not supported by
substantial evidence and is contrary to the OOR’s finding in its Determination that
the Borough had not release all such records. Sawicki’s Br. at 9-13. Second,
Common Pleas erred as a matter of law by concluding that Sawicki could not be
7
Common Pleas also issued a second opinion in this matter on November 24, 2021, in
response to Sawicki’s Statement of Errors Complained of on Appeal.
9
awarded attorney’s fees and costs of litigation under the RTKL because she was
representing herself pro se, in spite of the fact that Sawicki was a licensed attorney
at the time. Id. at 21-27. Third, Common Pleas abused its discretion and committed
errors of law by determining that the Borough had not acted in bad faith and
consequently declining to award attorney’s fees, costs of litigation, and civil
damages to Sawicki pursuant to the RTKL. Id. at 13-21. Finally, Common Pleas
abused its discretion by denying Sawicki’s Motion for Sanctions. Id. at 28-33.8
Broadly speaking, once all appellate rights have either been exhausted or
waived regarding an RTKL request, the proper manner for a requester to enforce
compliance with a final order or determination directing disclosure of certain records
is via mandamus. See Capinski v. Upper Pottsgrove Twp., 164 A.3d 601, 606 (Pa.
Cmwlth. 2017). When considering an appeal from a lower court’s disposition of such
a mandamus action, “[o]ur review [is limited to] consider[ing] whether [Common
Pleas’] findings of fact are supported by substantial evidence or whether [Common
Pleas] committed an error of law or abused its discretion.” Id. at 605 n.4. Similarly,
we are limited to reviewing the lower court’s disposition of a motion for sanctions
made pursuant to Pennsylvania Rules of Civil Procedure 1023.1 and 1023.2 using
an abuse of discretion standard. Pane v. Indian Rocks Prop. Owners Ass’n, Inc. of
Ledgedale, 167 A.3d 266, 272 n.5 (Pa. Cmwlth. 2017).
Turning to Sawicki’s first argument, regarding Common Pleas’ implied
conclusion that the Borough had turned over all responsive records in October 2020,
we conclude that it is meritless. In this instance, Sawicki puts forth a tortured reading
of the Determination, one that is simply not supported by the language used therein
by the OOR. Contrary to Sawicki’s assertion that the OOR had held that additional,
8
Sawicki does not contest Common Pleas’ dismissal of her mandamus action. Therefore,
we will not address the propriety of that dismissal.
10
responsive records both existed and had not been given to her by the Borough, it is
unmistakably evident that this is not the case. Rather, the OOR merely ruled that the
Borough had failed to satisfy its burden of establishing that any such outstanding
records were exempt from disclosure. See R.R. at 9a-11a. Sawicki conspicuously
ignores the OOR’s statement in its Determination that it could not, and would not,
order disclosure of records that did not exist, despite the Borough’s failure to carry
its burden of proof at that juncture; such qualification would obviously not have been
necessary had the OOR definitively concluded that additional records remained to
be released by the Borough. See id. at 10a-11a n.6. Furthermore, in affirming the
OOR on this point, Common Pleas simply followed the OOR’s lead by
acknowledging that Wessels’ October 19, 2020 letter created the impression that the
Borough had more records that were responsive to Sawicki’s request, while also
concluding that Wessels had corrected this impression through his January 4, 2021
Certification, in which he stated that there were no such remaining records. See
Common Pleas Op., 8/25/21, at 10. Consequently, we discern no basis for disturbing
Common Pleas’ reasoning on this point.
Sawicki’s second argument, that Common Pleas erred by ruling that she could
not be awarded attorney’s fees and costs of litigation under the RTKL because she
was representing herself pro se, is marginally better than her first. Section 1304(a)
of the RTKL authorizes our Commonwealth’s courts to award attorney’s fees and
costs of litigation when a governmental agency’s disposition of a RTKL request is
subsequently reversed and the relevant court determines that the agency had handled
the request in bad faith. Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 243 A.3d
19, 34 (Pa. 2020).9
9
Section 1304 of the RTKL reads as follows, in relevant part:
(Footnote continued on next page…)
11
In this instance, Common Pleas did not err by concluding that Sawicki was
barred from recovering attorney’s fees under the RTKL, because it is clear that she
represented herself pro se in this matter. It is well-settled that the courts of our
Commonwealth follow “[t]he American Rule[, which] states that a litigant cannot
recover counsel fees from an adverse party unless there is express statutory
authorization, a clear agreement of the parties[,] or some other established
exception.” Mosaica Acad. Charter Sch. v. Com. Dep’t of Educ., 813 A.2d 813, 822
(Pa. 2002). Even in instances where an exception to this rule exists, though, a party
cannot recover attorney’s fees or an equivalent kind of compensation for their efforts
if they litigated their case pro se. Westmoreland Cnty. Indus. Dev. Auth. v. Allegheny
Cnty. Bd. of Prop. Assessment, Appeals & Rev., 723 A.2d 1084, 1086-87 (Pa.
Cmwlth. 1999). This bar applies in RTKL matters as well and serves to prevent
(a) Reversal of agency determination.--If a court reverses the final
determination of the appeals officer or grants access to a record after
a request for access was deemed denied, the court may award
reasonable attorney fees and costs of litigation or an appropriate
portion thereof to a requester if the court finds either of the
following:
(1) the agency receiving the original request willfully or with
wanton disregard deprived the requester of access to a public
record subject to access or otherwise acted in bad faith under
the provisions of this act[.]
65 P.S. § 67.1304. The Supreme Court has ruled that this statutory language is ambiguous and, as
such, attorney’s fees and costs of litigation may be awarded in a multitude of scenarios, not just
where a court has reversed a governmental agency’s actual or deemed denial of a records request.
See Uniontown Newspapers, 243 A.3d at 34.
“When a state agency is the subject of a RTKL enforcement action, a single judge of the
Commonwealth Court serves as the arbiter of disputes over attorneys’ fees[,] civil penalties[, and
costs of litigation]. When, as in this case, a local agency is the subject, the common pleas court
serves that role.” Brunermer v. Apollo Borough, (Pa. Cmwlth., No. 661 C.D. 2021, filed Jul. 28,
2022), slip op. at 9 n.8, 2022 WL 2976345, at *4 n.8; see Section 414(a) of the Internal Operating
Procedures of the Commonwealth Court of Pennsylvania, 210 Pa. Code § 69.414(a) (unreported
Commonwealth Court opinions issued after January 15, 2008, may be cited for their persuasive
value).
12
litigants like Sawicki from being awarded such fees or similar compensation relating
to the handling of a request for disclosure of government records. McFalls v. Mun.
of Norristown, (Pa. Cmwlth., No. 737 C.D. 2021, filed, May 17, 2022), slip op. at 9-
10, 2022 WL 1553720, at *4. Sawicki’s argument to the contrary, i.e., that this bar
does not apply to her because she exists as, in essence, two distinct personae
inhabiting one body, is unavailing. Though Sawicki raises an interesting ontological
question that would not necessarily be out of place in an entry-level philosophy
seminar, in the courts of this Commonwealth, a lawyer representing herself is no
more able to obtain an award of attorney’s fees or their equivalent than a pro se
individual who does not have a law license. Cf. Kay v. Ehrler, 499 U.S. 432, 437
(1991).10
10
Though Kay dealt with a request for attorney’s fees pursuant to Section 1988 of the Civil
Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, former Justice Stevens’ discussion
of the perils of making such an award to a litigant who is both a licensed attorney and is
representing themselves pro se is still extremely relevant to the situation at-hand:
Even a skilled lawyer who represents himself is at a disadvantage in
contested litigation. Ethical considerations may make it
inappropriate for him to appear as a witness.[] He is deprived of the
judgment of an independent third party in framing the theory of the
case, evaluating alternative methods of presenting the evidence,
cross-examining hostile witnesses, formulating legal arguments,
and in making sure that reason, rather than emotion, dictates the
proper tactical response to unforeseen developments in the
courtroom. The adage that “a lawyer who represents himself has a
fool for a client” is the product of years of experience by seasoned
litigators.
A rule that authorizes awards of counsel fees to pro se litigants—
even if limited to those who are members of the bar—would create
a disincentive to employ counsel whenever such a plaintiff
considered himself competent to litigate on his own behalf.
Kay, 499 U.S. at 437 (footnote omitted).
13
We come to a different conclusion, however, regarding Sawicki’s request for
costs of litigation. The term “costs of litigation,” which is used in Section 1304 of
the RTKL, is not defined in the statute or elsewhere in the RTKL.
Where a term is not defined, we are instructed that ‘words
and phrases shall be construed according to rules of
grammar and according to their common and approved
usage.’ 1 Pa. C.S. § 1903(a). Moreover, in ascertaining the
common and approved usage or meaning, we may [rely
upon] the dictionary definitions of the terms left undefined
by the legislature.
P.R. v. Pa. Dep’t of Pub. Welfare, 759 A.2d 434, 437 (Pa. Cmwlth. 2000). As defined
in Black’s Law Dictionary, costs of this nature are described in two relevant ways,
first as “[t]he charges or fees taxed by the court, such as filing fees, jury fees,
courthouse fees, and reporter fees[,]” and, second, as “[t]he expenses of litigation,
prosecution, or other legal transaction, esp[ecially] those allowed in favor of one
party against the other.” COST, Black’s Law Dictionary (11th ed. 2019).
Furthermore, Black’s makes clear that costs and attorney’s fees are not fully
synonymous, noting that “[s]ome but not all states allow parties to claim attorney’s
fees as a litigation cost.” Id. The upshot of this is that, under Section 1304 of the
RTKL, attorney’s fees and costs of litigation are classified differently and do not
overlap with each other. Cf. Merlino v. Delaware Cnty., 728 A.2d 949, 951 (Pa.
1999) (attorney’s fees are not to be categorized as a recoverable cost of litigation
unless expressly provided for by statute). Therefore, given that litigation costs,
exclusive of attorney’s fees, constitute tangible expenditures which occur regardless
of whether a party has counsel or is acting in a pro se fashion,11 Sawicki’s
11
By contrast, a pro se litigant who requests an award of attorney’s fees is essentially
asking to be paid for the time they have invested in their case, rather than to be made whole for
actual payments they made to secure and maintain outside legal representation.
14
representation of herself in this matter does not stand as an impediment to her
recovering those costs from Wessels.
Moving on to Sawicki’s third argument, we agree with her that Common Pleas
erred as a matter of law by employing an inapplicable form of the bad faith standard
when denying her request for civil penalties and costs of litigation under the RTKL.12
As already noted supra, Section 1304(a) of the RTKL permits an award of litigation
costs in the event the relevant court finds that a governmental agency handled a
records request made under that law in bad faith. Uniontown Newspapers, 243 A.3d
at 34. The same is true for civil penalties, which, per Section 1305(a) of the RTKL,
“[a] court may impose [in the amount] of not more than $1,500 if an agency denied
access to a public record in bad faith.” 65 P.S. § 67.1305(a). “An example of bad
faith is a local agency’s failure to comply with the mandate of Section 901 of the
RTKL, [65 P.S. § 67.901,] which requires that a local agency make a good faith
search for information responsive to a request and determination of whether that
information is public.” Off. of the Dist. Att’y of Phila. v. Bagwell, 155 A.3d 1119,
1140-41 (Pa. Cmwlth. 2017). “[A] good faith response - either to produce records or
assert an exemption - cannot occur absent a good faith search, followed by collection
and review of responsive records, so an agency has actual knowledge about the
contents of the relevant documents.” Uniontown Newspapers, 243 A.3d at 29-30. In
this context, a determination regarding whether an agency acted in good or bad faith
and, thus, whether a litigant is entitled to an award under either Section 1304(a) or
12
We do not reach the portion of this specific argument as it relates to attorney’s fees
because, as just discussed, Sawicki could not recover them in this matter due to her pro se status.
15
1305(a) of the RTKL, is predicated “not on the mental state of the actor but [upon]
the actions taken by the agency.” Bagwell, 155 A.3d at 1141.13
In this instance, however, Common Pleas failed to use this standard when it
declined to award Sawicki civil penalties and costs of litigation pursuant to the
RTKL. Instead, Common Pleas made clear that it “decline[d] to find that [Wessels]
acted in bad faith in this proceeding since [it did] not believe any evidence point[ed]
to a willful, purposeful, dishonest intent on [the] part of the Borough to deny
[Sawicki] access to public records.” Common Pleas Op., 8/25/21, at 10 (emphasis
added); see id. at 8 (quoting Davis v. Pa. Co. for Insurances on Lives & Granting
Annuities, 12 A.2d 66, 69 (Pa. 1940)) (“[B]ad faith, or dishonesty, is, unlike
negligence, wil[l]ful.”). Common Pleas thus erred as a matter of law by focusing on
Wessels’ mental state and the intent of Borough staff, as neither of these things had
any bearing in this context upon whether the Borough handled Sawicki’s request in
bad faith.
Finally, as to Sawicki’s remaining argument, we are unpersuaded that
Common Pleas abused its discretion by denying her Motion for Sanctions. As
Common Pleas explained, it denied this Motion for the following reasons.
First, after a careful examination of the pleadings, we
concluded that [Wessels’ Answer with New Matter] did
not violate [Pennsylvania] Rule [of Civil Procedure]
1023.1(c). The [Motion for Sanctions] and the [Answer
with New Matter] reflect the strongly held opinions that
the parties have with respect to the [OOR’s
Determination] in the underlying RTKL case. [Sawicki]
13
The language used in Bagwell appears to suggest that the standard for granting an award
under Section 1304(a) is different than the standard applicable to awards made pursuant to Section
1305(a), in that a culpable mental state is required for the former, but is not necessary for the latter.
See Bagwell, 155 A.3d at 1140-41. However, our Supreme Court has made clear that the same
formulation of the bad faith standard applies when dealing with awards made pursuant to either of
these RTKL provisions. See Uniontown Newspapers, 243 A.3d at 33-34.
16
believes and repeatedly argued that the OOR . . . found as
fact that the Borough was in possession of responsive
public records requested by [her] and that the failure of the
Borough to appeal that finding foreclosed the defense that
the records did not exist. [Wessels] on the other hand
argued that the [OOR] found as fact only that the Borough
did not prove that no responsive records existed, and
therefore, the defense of impossibility was available to
him in this action.
The fact therefore that the parties in this case had
significantly different opinions regarding the import of the
OOR determination that were legitimate and not frivolous
defeats the basis for the motion.
Next, [Sawicki’s] allegations in the [Motion for Sanctions]
that [Wessels’ A]nswer with [N]ew [M]atter “created
confusion at a motions hearing on April 13, 2021, and
thereby impeded these proceedings, inconv[e]n[i]enced
[Common Pleas], caused unnecessary delay, and
needlessly increased the costs of litigating the complaint
in mandamus” are in all respects not true.
There was no confusion on April 13[, 2021]. The parties
and [Common Pleas] immediately focused on the issue of
the existence of responsive records. [Wessels] had three
witnesses present to testify as to the nonexistence of the
records. [Sawicki] objected to testimony and [Common
Pleas] agreed to continue to another date hearing on this
seminal issue. [Sawicki] then agreed to stipulate to the
nonexistence of responsive records. She told [Common
Pleas] “I am persuaded by the panoply of witnesses and
the vehemence of counsel’s argument that there are no
more records today that are responsive.” [Tr., 4/13/21, at
16]. The parties were unable in court to agree to the
language for a stipulation but agreed to keep working on a
means to resolve the question of the nonexistence of
responsive records. By letter dated April 19, [2021,]
Sawicki informed [Common Pleas] that “the parties
agreed that this question could be resolved through
unsworn declarations under 18 Pa. C.S [§] 4904.”[14] In
short, a great deal was accomplished on April 13, [2021,]
14
As discussed in footnote 4 supra, Sawicki’s letter is not included in either her
Reproduced Record or the original record certified by Common Pleas to this Court.
17
and the way was paved so that [Sawicki] could announce
at the opening of the June 24[, 2021] hearing that the issue
of the records was moot.
Our third reason for denying the Motion for Sanctions
relates to the timing of the motion and the fees claimed on
account of the motion.
The [Motion for Sanctions] was filed April 19, 2021[,] or
over two months after [Wessels] filed his [A]nswer [with
N]ew [M]atter. It was filed on the same day . . . Sawicki
advised [Common Pleas] that the question regarding the
existence or nonexistence of responsive records was
resolved.
[Wessels] filed a response to the [M]otion and [Sawicki]
filed a reply to the response. In her reply[, Sawicki]
appended an ‘updated invoice’ for her fees and costs.
Attached to this Memorandum is a copy of the invoice. As
reference to the invoice will show, [Sawicki] claimed
$4818.75 for fees and costs through April 13[, 2021]. That
claim therefore included her time spent replying to
[Wessels’ A]nswer with . . . [N]ew [M]atter. As reference
to the invoice will show, by June 24[, 2021,] the claim for
fees and costs had increased to $16,617.87. Again, as
reference to the invoice will show, all but a few of the
charges between April 13[, 2021,] and June 24[, 2021,]
were for work performed on the [Motion for Sanctions]
and not the mandamus action. In addition, as reference to
the invoice will show, . . . Sawicki increased her hourly
rate from $50.00 to $300.00 per hour. The bottom line is
that . . . Sawicki wants the citizens of [the] Borough to pay
her $11,799.12 for her work on a motion unrelated to this
mandamus action and in an action which she lost.
Common Pleas Op., 11/24/21, at 5-7. Common Pleas’ reasoning is sound and, as
such, we will not meddle with its discretionary decision to deny Sawicki’s Motion
for Sanctions.
III. Conclusion
In accordance with the foregoing, we vacate Common Pleas’ August 25, 2021
order, with regard to Common Pleas’ denial of Sawicki’s request for an award of
18
civil penalties and costs of litigation pursuant to the RTKL, and remand this matter
to Common Pleas with instructions that it rule upon these requests by applying the
proper legal standard for evaluating claims of bad faith in RTKL matters. In all other
respects of this appeal, however, we affirm Common Pleas’ order.
____________________________
ELLEN CEISLER, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marianne Sawicki, :
Appellant :
:
v. : No. 1046 C.D. 2021
:
David W. Wessels, in his official :
capacity as Open Records Officer :
of Borough of Huntingdon :
ORDER
AND NOW, this 19th day of December, 2022, it is hereby ORDERED:
1. The Court of Common Pleas of Huntingdon County’s (Common
Pleas) August 25, 2021 order is VACATED IN PART, with regard to Common
Pleas’ denial of Appellant Marianne Sawicki’s (Sawicki) request for an award of
civil penalties and costs of litigation pursuant to Sections 1304(a) and 1305(a) of the
Right-to-Know Law (RTKL), Act of February 14, 2008, P.L. 6, 65 P.S. §§
67.1304(a), 67.1305(a);
2. Common Pleas’ August 25, 2021 order is AFFIRMED IN PART,
as to the remainder of the issues raised by Sawicki in her appeal to our Court;
3. This matter is REMANDED IN PART to Common Pleas, with
instructions that, when ruling upon Sawicki’s demand for civil penalties and costs
of litigation, it shall use the proper legal standard for evaluating bad faith claims
pertaining to governmental agencies’ handling of RTKL records requests.
Jurisdiction relinquished.
____________________________
ELLEN CEISLER, Judge