            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Constance O’Neal,                        :
                         Appellant       :
                                         :
             v.                          :   No. 179 C.D. 2016
                                         :   No. 249 C.D. 2016
Bedford County and Cathy Fetter,         :   Argued: December 15, 2016
acting in her official capacity as       :
The Bedford County Prothonotary/         :
Clerk of Courts                          :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                             FILED: January 20, 2017


             Before this Court are cross-appeals from an order of the Court of
Common Pleas of Bedford County (trial court), dated January 6, 2016, which
granted the preliminary objections of Bedford County and Cathy Fetter, acting in
her official capacity as the Bedford County Prothonotary and Clerk of Courts
(Fetter), and dismissed with prejudice the complaint filed against them by
Constance O’Neal (O’Neal). For the reasons set forth below, we affirm in part and
reverse in part.
             For purposes of this appeal, the following facts are not in dispute. In
early 2005, O’Neal was charged with multiple felonies: theft by unlawful taking
or disposition, receiving stolen property, and intimidation of witnesses or victims.
O’Neal entered into a plea deal in April 2005, which included the nolle prosse of
the felony counts. O’Neal pled guilty to reduced charges of two misdemeanors—
misdemeanor theft and harassment.
               Despite the plea agreement forgoing the felony counts, the Bedford
County Clerk of Courts entered the disposition of the case as a guilty plea of theft
by unlawful taking and receiving stolen property, both graded as felonies. In
reliance on the entry by the Clerk of Courts, the Pennsylvania State Police Central
Repository recorded the conviction to include a second-degree felony.
               In 2014, O’Neal contacted the Bedford County District Attorney’s
Office to notify the office of the mistake. In response, the District Attorney’s
Office wrote a letter to Fetter, identifying the mistake and requesting that the Clerk
of Courts remedy the mistake. Fetter, in turn, wrote a letter to the State Police
Central Repository, instructing the Repository to enter the convictions as reflected
in the plea agreement.
               On July 16, 2015, O’Neal filed a complaint against Bedford County
and Fetter, asserting a statutory claim under the Criminal History Record
Information Act (CHRIA).1 (Reproduced Record (R.R.) at 6a-15a.) O’Neal’s
complaint alleged that as a result of the inaccurate recording of her criminal
history, she sustained both economic and academic losses.           Specifically, the
complaint alleged that the University of Pittsburgh-Johnstown rescinded O’Neal’s
acceptance and St. Francis University revoked her scholarship award due to the
inaccuracy in her criminal record. O’Neal alleged that she was unable to gain
admittance to Mount Aloysius College as a result of the felony convictions on her
criminal record.      O’Neal also alleged that prospective employers Alleghenies

      1
          18 Pa. C.S. §§ 9101-9183.



                                          2
Unlimited Care Providers and Choices People Supporting People rejected her
employment application due to the inaccurate recording.                O’Neal alleged the
following specific economic losses: (1) $147,900 in lost financial compensation
for the delayed entry into the nursing field; and (2) $78,240 in lost scholarship at
St. Francis University. Fetter and Bedford County filed preliminary objections in
response to the complaint, arguing that O’Neal failed to set forth a cause of action
under CHRIA. Fetter and Bedford County argued that the inaccuracy in O’Neal’s
criminal record was an innocent mistake, which does not constitute a violation
under CHRIA. The preliminary objections also argued that Bedford County, as a
general executive office, could not be sued under CHRIA, which only applies to a
“criminal justice agency.”
              In response, O’Neal argued that she did set forth a valid cause of
action under CHRIA, which imposes a duty to collect and maintain accurate
criminal record information. O’Neal contended that Bedford County was a viable
defendant because the county is a “repository” as defined under CHRIA. O’Neal
also argued that Fetter, individually and acting as the Prothonotary and Clerk of
Courts, had a duty as a “criminal justice agency” under CHRIA to collect and
maintain accurate information.2 O’Neal also argued that Bedford County has a
duty under CHRIA because the county employs workers in the offices of
Prothonotary and Clerk of Courts. O’Neal similarly argued that Bedford County is
liable for the actions that Fetter took on behalf of the courts of Bedford County.


       2
         We note that while O’Neal’s response to the preliminary objections argued that Fetter
was liable “individually and acting as Bedford County Prothonotary/Clerk of Courts,” (R.R.
at 200a (emphasis added)), the complaint only named Fetter in her official capacity—not
individually.



                                              3
              On January 6, 2016, the trial court granted the preliminary objections
and dismissed O’Neal’s complaint against Fetter and Bedford County with
prejudice. In explaining its ruling, the trial court concluded that CHRIA does
permit suits against governmental units and that O’Neal had a valid cause of action
against Bedford County to the extent that the Clerk of Courts’ Office is a part of
the county government. The trial court also determined that Fetter was not liable
in her official capacity as the Prothonotary and Clerk of Courts, but may be liable
as an employee of that office. Finally, the trial court concluded that O’Neal was
precluded from any recovery because she was contributorily negligent. The trial
court reasoned that O’Neal had a statutory right to access to her criminal history
and to have her criminal history corrected. According to the trial court, O’Neal
could have prevented any loss with reasonable diligence.
              On appeal,3 O’Neal argues that the trial court erred by raising
contributory negligence, sua sponte, as a bar to her claims.                      Contributory
negligence, O’Neal contends, is not a proper basis for demurrer. O’Neal argues
that as an affirmative defense, Fetter and Bedford County have the burden to prove
contributory negligence before a jury at trial.4

       3
         “Our review of a trial court’s grant of preliminary objections based on issues of law is
plenary.” Ballroom, LLC v. Cmwlth., 984 A.2d 582, 586 n.3 (Pa. Cmwlth. 2009).
       4
         We note that O’Neal, by counsel, has failed to adhere to Rule 2119(a) of the
Pennsylvania Rules of Appellate Procedure, which provides:
       The argument shall be divided into as many parts as there are questions to be
       argued; and shall have at the head of each part—in distinctive type or in type
       distinctively displayed—the particular point treated therein, followed by such
       discussion and citation of authorities as are deemed pertinent.
Pa. R.A.P. 2119(a) (emphasis added). This Court has held that “[m]ere issue spotting without
analysis or legal citation to support an assertion precludes our appellate review of [a] matter.”
(Footnote continued on next page…)

                                               4
              In response, Fetter and Bedford County argue that the trial court
properly dismissed the case with prejudice because O’Neal was in fact
contributorily negligent. They argue that O’Neal did not appeal the dismissal of
Fetter acting in her official capacity as the Prothonotary and Clerk of Courts.
Fetter and the County contend that O’Neal waived any argument regarding the
dismissal of Fetter. They also cross-appeal5 and argue that the trial court erred in
holding that O’Neal has a valid cause of action against Bedford County under
CHRIA. Fetter and Bedford County argue that the County had no duty under
CHRIA, which only imposes a duty on criminal justice agencies. Finally, they
argue that the trial court erred in its holding that the incorrect recording of
information constitutes negligence per se under CHRIA.
              CHRIA imposes a duty to record and maintain accurate criminal
history information. Section 9111 of CHRIA, 18 Pa. C.S. § 9111, provides:
              It shall be the duty of every criminal justice agency
              within the Commonwealth to maintain complete and
              accurate criminal history record information and to report
              such information at such times and in such manner as
              required by the provisions of this chapter or other
              applicable statutes.

Section 9102 of CHRIA, 18 Pa. C.S. § 9102, defines “criminal justice agency” as:

(continued…)

Commonwealth v. Spontarelli, 791 A.2d 1254, 1259 n.11 (Pa. Cmwlth. 2002). O’Neal’s brief
fails to comply with Rule 2119(a), because at multiple points the legal argument and the
description of applicable legal rules lack a citation to legal authority, including page numbers.
We encourage counsel to review the basic brief writing requirements under the Pennsylvania
Rules of Appellate Procedure.
       5
         On March 1, 2016, this Court consolidated the appeal by O’Neal and the cross-appeal
by Fetter and Bedford County.



                                               5
            Any court, including the minor judiciary, with criminal
            jurisdiction or any other governmental agency, or subunit
            thereof, created by statute or by the State or Federal
            constitutions, specifically authorized to perform as its
            principal function the administration of criminal justice,
            and which allocates a substantial portion of its annual
            budget to such function. Criminal justice agencies
            include, but are not limited to: organized State and
            municipal police departments, local detention facilities,
            county, regional and State correctional facilities,
            probation agencies, district or prosecuting attorneys,
            parole boards, pardon boards, the facilities and
            administrative offices of the Department of Public
            Welfare that provide care, guidance and control to
            adjudicated delinquents, and such agencies or subunits
            thereof, as are declared by the Attorney General to be
            criminal justice agencies as determined by a review of
            applicable statutes and the State and Federal
            Constitutions or both.

Moreover, if a criminal justice agency breaches its duty, Section 9183(b) of
CHRIA, 18 Pa. C.S. § 9183(b), relating to actions for damages, provides a
statutory remedy:
            (1) Any person aggrieved by a violation of the provisions
            of this chapter or of the rules and regulations
            promulgated under this chapter, shall have the
            substantive right to bring an action for damages by
            reason of such violation in a court of competent
            jurisdiction.
            (2) A person found by the court to have been aggrieved
            by a violation of this chapter or the rules or regulations
            promulgated under this chapter, shall be entitled to actual
            and real damages of not less than $100 for each violation
            and to reasonable costs of litigation and attorney’s fees.
            Exemplary and punitive damages of not less than $1,000
            nor more than $10,000 shall be imposed for any violation
            of this chapter, or the rules or regulations adopted under
            this chapter, found to be willful.



                                        6
            We begin our discussion with the applicability of the duty under
CHRIA to the parties in this case. We must determine if O’Neal has a valid party
to sue. Fetter and Bedford County concede in their brief that the Clerk of Courts’
Office has a duty under Section 9111 of CHRIA as a criminal justice agency.
(Bedford Cnty and Fetter Br. at 14.) O’Neal named only Bedford County and
Fetter, however, and the statute of limitations has run. We must assess, therefore,
whether it is appropriate to allow O’Neal to amend the caption and body of the
complaint to include the Clerk of Courts’ Office.
            At argument before this panel, O’Neal, by counsel, asked this Court to
permit her to amend the complaint. Though O’Neal made no motion to amend the
caption to correct the name of the party sued, this is not fatal to her argument
because a court may, on its own initiative, permit or require amendment of a
complaint. Kelly v. Pennsylvania Bd. of Prob. & Parole, 686 A.2d 883, 884 n.3
(Pa. Cmwlth. 1996). The determination to be made when considering whether to
allow a party to correct the name of a party is whether the right person was sued
but under a wrong designation, or whether a wrong person was sued and the
amendment was designed to substitute another and distinct party. Tork-Hiis v.
Cmwlth., 735 A.2d 1256, 1258 (Pa. 1999). This Court’s decision in Hall v. Acme
Markets, Inc., 532 A.2d 894 (Pa. Cmwlth. 1987), is instructive.
            In Hall, after the plaintiff of an automobile accident sued several
private party defendants, those private parties joined the Commonwealth of
Pennsylvania and the Secretary of Transportation as additional defendants. Hall,
532 A.2d at 895. On appeal, this Court permitted the plaintiff to add the words
“Department of Transportation” to both the caption and the body of the complaint.
Id.   We held that the failure to specify “Department of Transportation” as a


                                         7
defendant was a technical defect that could be corrected by amendment, even after
the statute of limitations had run. Id. at 897. We explained that “the Department
of Transportation has clearly been involved with all aspects of this litigation since
the suit was initially filed,” because the private defendants named the Secretary
before the statute had run. Id.
             Similarly here, the Clerk of Courts’ Office has been involved with all
aspects of this litigation since the suit was initially filed. O’Neal named both
Bedford County and Fetter in their relation to the alleged breach of CHRIA when
the Clerk of Courts’ Office incorrectly recorded O’Neal’s criminal charges.
Moreover, as in Hall, O’Neal did so before the statute of limitations expired. The
naming of Bedford County as the adverse party rather than the Bedford County
Clerk of Courts’ Office was merely a technical defect which may be remedied by
amendment. We, therefore, instruct the trial court on remand to permit O’Neal to
amend the caption and body of the complaint to specify the Clerk of Courts’ Office
as a defendant.
             Next, we address the ultimate dismissal of the case below based on
what the trial court concluded was contributory negligence by O’Neal. On appeal,
O’Neal argues that the trial court erred by raising contributory negligence, sua
sponte, as a bar to her claims. We agree. Pennsylvania courts have long held that
“a lower court is not to act as an advocate for a party.” O’Hare v. Cnty. of
Northampton, 782 A.2d 7, 15 (Pa. Cmwlth. 2001). Moreover, a court may not
dismiss a case at the preliminary objection stage based on a defense not raised by a
party. MacGregor v. Mediq Inc., 576 A.2d 1123, 1128 (Pa. Super. 1990). The




                                         8
trial court’s analysis and dismissal based on contributory negligence amounted to
impermissible advocacy on behalf of Bedford County and Fetter.6
                 We agree with Bedford County in its cross-appeal that it cannot be
held generally liable under CHRIA because the county government as a whole is
not a criminal justice agency. Because we interpret the trial court’s opinion to hold
that Bedford County is only liable to the extent that the Clerk of Courts’ Office is
an office within the county government,7 however, we affirm that portion of the
trial court’s opinion. Accordingly, we affirm and remand with instruction for the
trial court to permit O’Neal to amend her complaint to clarify that the
properly-named party in this matter is the Bedford County Prothonotary and Clerk
of Courts’ Office. We reverse the order of the trial court in its dismissal of the
case based on contributory negligence.




                                      P. KEVIN BROBSON, Judge




Judge Cosgrove did not participate in the decision of this case.




       6
         We additionally note that at argument before this panel, counsel for Bedford County
and Fetter conceded that the trial court erred in raising contributory negligence.
       7
           Pa. Const. art. IX, § 4.



                                             9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Constance O’Neal,                        :
                         Appellant       :
                                         :
            v.                           :   No. 179 C.D. 2016
                                         :   No. 249 C.D. 2016
Bedford County and Cathy Fetter,         :
acting in her official capacity as       :
The Bedford County Prothonotary/         :
Clerk of Courts                          :



                                     ORDER


            AND NOW, this 20th day of January, 2017, the order of the Court of
Common Pleas of Bedford County is AFFIRMED IN PART and REVERSED IN
PART, and the matter REMANDED for further proceedings consistent with this
opinion.
            Jurisdiction relinquished.




                               P. KEVIN BROBSON, Judge
