          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bruce G. Baron,                                :
                              Petitioner       :
                                               :
               v.                              :    No. 503 M.D. 2016
                                               :    Argued: June 7, 2017
Commonwealth Department                        :
of Human Services; and,                        :
Health Partners Plans, Inc.,                   :
                          Respondents          :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge


OPINION
BY JUDGE SIMPSON                               FILED: September 21, 2017

               In this matter of first impression, we consider whether a requester may
enforce an order to disclose records sought under the Right-to-Know Law (RTKL)1
while an appeal of that order is pending. Before us are Health Partners Plans, Inc.’s
(Health Partners) preliminary objections in the nature of a demurrer to Bruce G.
Baron’s (Petitioner) petition for review seeking mandamus relief in our original
jurisdiction to enforce the Office of Open Records’ (OOR) order directing the
Department of Human Services (DHS) to disclose records to him within 30 days.
Because Petitioner fails to show a clear right or mandatory duty, we sustain the
preliminary objections and dismiss his petition with prejudice.


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101–67.3104.
                                    I. Background
             Petitioner submitted a RTKL request to DHS for rates paid to nursing
homes by managed care organizations (MCOs) participating in the Medical
Assistance program, HealthChoices. After notifying the MCOs, DHS responded
that it lacked possession of the rates. Based on the MCOs’ claimed exemptions,
DHS denied access. Petitioner appealed to OOR.


             OOR invited the parties to submit evidence, and it advised DHS to
notify interested third parties. After receiving notice, the MCOs, comprised of the
Health Plans,2 Gateway Health Plan, Inc. (Gateway) and Health Partners, elected to
participate in OOR’s proceedings under Section 1101(c) of the RTKL, 65 P.S.
§67.1101(c). The MCOs submitted evidence to support their claimed exemptions.
Gateway also argued the rates did not qualify as records of DHS under the RTKL.


             After developing the evidentiary record, OOR granted Petitioner’s
appeal. See Baron v. Dep’t of Human Servs., OOR Dkt. No. AP 2016-1038 (July
13, 2016) (Final Determination). Specifically, it stated: “[DHS] is required to
provide the requested records as directed.” Id. at 10 (emphasis added) (Disclosure
Order). Notably, the Disclosure Order did not direct the MCOs to take any action.


             Within 30 days, the Health Plans and Gateway filed petitions for review
to the Disclosure Order. Petitioner then filed a timely cross-petition for review, later
amended to delete any reference to the RTKL as a basis for our jurisdiction.
      2
         Collectively, the MCOs comprising the Health Plans are: UnitedHealthcare of
Pennsylvania, Inc.; Aetna Better Health, Inc.; UPMC for You, Inc.; Geisinger Health Plan;
AmeriHealth Caritas of Pennsylvania; AmeriHealth Caritas Northeast; and, Keystone First.



                                           2
              Subsequently, Petitioner filed a “Petition for Review in Mandamus &
Related Ancillary Relief Petition for Enforcement of Final Order” (Mandamus
Petition) against DHS and Health Partners as respondents. The Mandamus Petition
did not name OOR as a respondent, or ask this Court to compel OOR to enforce its
Disclosure Order pursuant to Pa. R.A.P. 3761.


              In his Mandamus Petition, Petitioner acknowledged the timely appeals
by the Health Plans (No. 1357 C.D. 2016) and Gateway (No. 1358 C.D. 2016),
(collectively, Direct-Interest Participants). Mandamus Pet. at ¶2. Petitioner also
admitted he filed a cross-petition for review, which, in part, asked this Court to
enforce the Disclosure Order in our appellate jurisdiction (No. 1427 C.D. 2016).
Id. This Court, on its own motion, consolidated the three appeals to the Final
Determination (collectively, Consolidated Appeals). Significantly, in our appellate
jurisdiction, Petitioner challenges the final determination underlying the Disclosure
Order for which he now seeks enforcement in our original jurisdiction.


              DHS filed an answer to the Mandamus Petition.3 Health Partners filed
preliminary objections to the Mandamus Petition, to which Petitioner replied.
After argument on the preliminary objections, President Judge Mary Hannah Leavitt
directed the parties to brief whether the Consolidated Appeals triggered the
automatic stay in Section 1301(b) of the RTKL, 65 P.S. §67.1301(b). The en banc
Court heard argument, seriately, with the Consolidated Appeals. After briefing
and argument, the matter is now ready for disposition.
       3
          DHS stated it “has not provided Petitioner with the requested records as ordered …
because [it] does not have custody of the requested documents. Although [DHS] demanded [them],
Health Partners has refused to provide the requested documents.” Answer to Mandamus Pet., ¶13.



                                              3
                                   II. Discussion
             Petitioner alleges the Disclosure Order binds DHS and Health Partners.
Mandamus Pet. at ¶8 (“The [Disclosure Order] ordered DHS and Health Partners
… to provide to Petitioner documents in the constructive possession of DHS ….”).
He also contends there is no stay in effect under Section 1301(b) of the RTKL, 65
P.S. §67.1301(b), because none of the Consolidated Appeals met the statutory
criteria set forth in Section 1301(a) of the RTKL, 65 P.S. §67.1301(a).
Notwithstanding the Consolidated Appeals, Petitioner claims the Disclosure Order
remains enforceable because neither DHS nor Health Partners exercised its right to
appeal from the Disclosure Order, and neither requested a stay.


             Health Partners argues Petitioner cannot sustain a claim because he
does not satisfy the prerequisites for mandamus relief. In addition to the demurrers
based on the absence of a mandatory duty, Health Partners maintains the
Consolidated Appeals triggered the automatic stay under the RTKL, and afford
Petitioner an adequate legal remedy in this Court’s appellate jurisdiction. Further,
it claims the Mandamus Petition is preempted by the Defend Trade Secrets Act
(DTSA), 18 U.S.C. §§1831-1839, and is barred by the doctrine of lis pendens.


                                A. Legal Standards
             As to preliminary objections in the nature of a demurrer, we may
sustain preliminary objections only when, based on the facts pled, it is clear and free
from doubt that the complainant will be unable to prove facts legally sufficient to
establish a right to relief. Mazur v. Trinity Area Sch. Dist., 961 A.2d 96 (Pa. 2008).
“For the purpose of evaluating the legal sufficiency of the challenged pleading, this



                                          4
Court must accept as true all well-pled, material, and relevant facts alleged in the
complaint and every inference that is fairly deducible from those facts.” Markham
v. Wolf, 147 A.3d 1259, 1270 (Pa. Cmwlth. 2016) (en banc). This does not include
any legal conclusions stated in the pleading. Armstrong Cnty. Memorial Hosp. v.
Dep’t of Pub. Welfare, 67 A.3d 160 (Pa. Cmwlth. 2013).


             The common law writ of mandamus lies to compel the performance of
a ministerial act or mandatory duty. Chesapeake Appalachia, LLC v. Golden, 35
A.3d 1277 (Pa. Cmwlth. 2012). “The burden of proof falls upon the party seeking
this extraordinary remedy to establish his legal right to such relief.” Werner v.
Zazyczny, 681 A.2d 1331, 1335 (Pa. 1996). To state a claim for mandamus, a
petitioner must establish the following three elements: (1) a clear legal right to
relief in the petitioner; (2) a corresponding duty in the respondent; and, (3) the lack
of any other adequate and appropriate remedy. Wilson v. Pa. Bd. of Prob. &
Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). “Mandamus is not available to
establish legal rights but only to enforce rights that have been established.” Smires
v. O’Shell, 126 A.3d 383, 387 (Pa. Cmwlth. 2015) (citations omitted). Further,
“[a]s a high prerogative writ, mandamus is rarely issued and never to interfere with
a public official’s exercise of discretion.” Id.


                             B. Preliminary Objections
             Health Partners raises several preliminary objections in the nature of a
demurrer pursuant to Pa. R.C.P. No. 1028(a)(4). First, Health Partners argues
mandamus is not a form of relief that may be obtained against it as a private party.
Second, it asserts the Disclosure Order does not mandate non-agency action.



                                           5
Third, it explains DHS owes no duty because the Disclosure Order is the subject of
the Consolidated Appeals. As a result, disclosure is stayed under Section 1301(b)
of the RTKL, 65 P.S. §67.1301(b). Further, disclosure is precluded by the DTSA.
In addition, Health Partners contends the Mandamus Petition is barred by the
doctrine of lis pendens. Essentially, it asserts Petitioner has an adequate legal
remedy through the Consolidated Appeals, and his claims fall within this Court’s
appellate, as opposed to original, jurisdiction.


                                    1. Mandamus
             First, we consider whether the Mandamus Petition states a claim for
which relief may be granted against either Health Partners or DHS.


                            a. Duty on Health Partners
              Health Partners argues mandamus is not appropriate against a private
party. Further, it emphasizes the Disclosure Order does not mandate it to perform
any action. Therefore, mandamus is an ineffective form of relief as to it. We agree.


             “Mandamus is a device that is available in our system to compel a
tribunal or administrative agency to act when that tribunal or agency has been
‘sitting on its hands.’” Pa. Dental Ass’n v. Ins. Dep’t, 516 A.2d 647, 652 (Pa.
1986) (emphasis added). One of the three elements required to state a claim for
mandamus relief is a mandatory duty on the part of the respondent. Wilson.


             Here, the source of the mandatory duty is the Disclosure Order. By its
express terms, the Disclosure Order imposes no duty on Health Partners with which



                                           6
Petitioner may enforce compliance. It does not mention the MCOs, or direct DHS to
obtain responsive records from the MCOs. Because Petitioner cites no other source
for the mandatory duty, he fails to state a mandamus claim against Health Partners.


                                   b. Duty on DHS
             Next, we consider whether Petitioner states a mandamus claim against
DHS. On its face, the Disclosure Order imposes a mandatory duty on DHS as it
directs DHS to disclose responsive records to Petitioner within 30 days. However,
Petitioner admits that the Disclosure Order he seeks to enforce is the same order
under attack in the Consolidated Appeals, including a cross-petition he filed.
Mandamus Pet. at ¶2. These Consolidated Appeals were pending at the time he
filed the Mandamus Petition. Id. Under these circumstances and applicable law,
Petitioner cannot state a claim for mandamus.


                                  (1) Enforceability
             The Disclosure Order became an infirm basis for mandamus relief
once it was challenged in the Consolidated Appeals. Crockett v. Se. Pa. Transp.
Auth. (Pa. Cmwlth., No. 2068 C.D. 2011, filed May 23, 2012), 2012 WL 8700066
(unreported). Two fundamental issues are disputed in the Consolidated Appeals:
(1) whether the rates are records of DHS; and, (2) whether the rates are public
records subject to disclosure under the RTKL. Because the public status of the
records is questioned, DHS’ alleged mandatory duty of disclosure is not assured.
For the same reason, Petitioner’s alleged right to relief is unclear.




                                           7
             In Crockett, this Court upheld a trial court’s order sustaining
preliminary objections to a mandamus petition and dismissing the petition in
similar circumstances. Like the instant matter, in Crockett, the local agency’s
appeal of the final determinations was pending at the time the petitioner filed his
mandamus actions to enforce them. The trial court reasoned that since his right to
the requested records had not been finally determined, the petitioner could not
establish a mandatory duty on the part of the agency to provide access. On that
basis, the trial court held the petitioner failed to state a claim. We affirmed.


             Petitioner contends Crockett is distinguishable because the agency
timely appealed pursuant to Section 1302(a) of the RTKL, 65 P.S. §67.1302(a).
He disclaims the relevance of the Consolidated Appeals because none of the
petitions for review complied with Section 1301(a) of the RTKL.


             Section 1301(a) provides the general rule for judicial review of access
disputes involving Commonwealth agencies. In pertinent part, it states:

             Within 30 days of the mailing date of the final determination of
             the appeals officer … issued under [S]ection 1101(b) or the
             date a request for access is deemed denied, a requester or the
             agency may file a petition for review or other document as
             might be required by rule of court with the Commonwealth
             Court.

65 P.S. §67.1301(a)(emphasis added).


             Petitioner maintains the RTKL only recognizes appeals filed by the
requester and the agency. In his view, the timely appeals filed by the Direct-Interest
Participants do not qualify. Petitioner notes that his own cross-petition for review

                                           8
was not filed within the requisite 30 days, and that he did not invoke our statutory
jurisdiction under Section 1301 of the RTKL.


              We decline Petitioner’s invitation to construe Section 1301(a) so
strictly. We also reject his premise that the failure of the RTKL to expressly
contemplate appeals by parties other than a requester or agency renders such appeals
less valid.


              First, Petitioner’s overly-technical reading does not account for the
interplay of Section 1301 with court rules. See, e.g., Pa. R.A.P. 1512 (extending
appeal deadline for cross-petitions). A court may also extend a statutory appeal
period when the circumstances warrant it. Ercolani v. Dep’t of Transp., Bureau of
Driver Licensing, 922 A.2d 1034, 1037 (Pa. Cmwlth. 2007) (“[a] court may permit
a licensee to appeal nunc pro tunc [when] the licensee’s failure to file a timely
appeal resulted from extraordinary circumstances involving fraud or a breakdown
in the administrative or judicial process.”).    Moreover, a court possesses the
inherent right to employ rules for procedure and practice before it so long as the
rules do not conflict with the laws of the Commonwealth or the United States.
Appeal of Borough of Churchill, 575 A.2d 550 (Pa. 1990).


              In construing Chapter 13 of the RTKL, “[w]e presume that the
General Assembly does not intend a result that is absurd, impossible of execution,
or unreasonable, and that the General Assembly intends the entire statute to be
effective and certain.” Bowling v. Office of Open Records, 75 A.3d 453, 466 (Pa.
2013). We consider matters of procedure liberally to ensure access to the courts.



                                         9
DeFazio v. Labe, 543 A.2d 540 (Pa. 1988); F & M Schaefer Brewing Co. v. Bd. of
Assessm’t Appeals of Lehigh Cnty., 502 A.2d 310 (Pa. Cmwlth. 1985); see Pa.
R.C.P. No. 126; Pa. R.A.P. 105(a). Further, it is in the interest of judicial economy
and just resolutions to avoid piecemeal litigation. With these principles in mind,
we construe Section 1301 of the RTKL.

             At the outset, we reject Petitioner’s contention that his cross-petition
did not comply with Section 1301(a) of the RTKL. Although it was not filed
within 30 days as specified in that provision, his cross-petition for review was
nonetheless timely pursuant to our Rules of Appellate Procedure.


             Under Pa. R.A.P. 1512(a)(2), Petitioner had 14 days from the date
Health Plans served their petition for review to file a cross-petition. By operation of
the rule, he had additional time beyond the statutory appeal period to file a petition.
Under a reasoned reading of the statute, in conjunction with applicable rules of
court, Petitioner’s cross-petition constitutes a petition for review filed by a
requester pursuant to Section 1301(a) of the RTKL.


             Regardless of whether Petitioner challenged OOR’s final determination
under Section 1301(a), the fact remains that the Direct-Interest Participants timely
petitioned for review. Our RTKL jurisprudence recognizes such third-party appeals
as proper. Dep’t of Educ. v. Bagwell, 131 A.3d 638 (Pa. Cmwlth. 2016) (Bagwell
2016); W. Chester Univ. v. Schackner (Bravo), 124 A.3d 382 (Pa. Cmwlth. 2015);
see also SWB Yankees LLC v. Wintermantel, 45 A.3d 1029 (Pa. 2012) (accepting
third-party contractor’s participation on appeal). An agency cannot waive a third




                                          10
party’s right in nondisclosure by action or inaction. Bagwell 2016, 131 A.3d at 649
(“agencies are not permitted to waive a third party’s interest in protecting records.”).


              That DHS did not appeal does not impair Direct-Interest Participants’
appeal rights. On appellate review, the Disclosure Order is subject to reversal or
modification, undermining any immediate right to relief or mandatory duty to
disclose. Hence, any attempt to enforce an appealed final determination before
disposition of the merits is premature.4


              Because the Disclosure Order is also the subject of the Consolidated
Appeals, which question whether DHS has any duty to disclose, Petitioner is
unable to establish that DHS currently owes him a mandatory duty or that he has a
clear right to relief. Thus, he fails to satisfy the elements for mandamus relief.


                                   (2) Automatic Stay
              Based on the supplemental briefing, and cognizant that this matter
may be appealed, we also analyze the impact of our interpretation of Section
1301(a) of the RTKL on the stay contained in Section 1301(b) of the RTKL.




       4
         Further, this Court recognizes mandamus may offer relief as to unappealed final
determinations. See Capinski v. Upper Pottsgrove Twp., 164 A.3d 601 (Pa. Cmwlth. 2017),
(holding mandamus is only appropriate “where the requester has not appealed the final
determination to a court for a merits review”) (emphasis added); Uniontown Newspapers v.
Dep’t of Corr., 151 A.3d 1196 (Pa. Cmwlth. 2016); Wishnefsky v. Dep’t of Corr. (Pa. Cmwlth.,
No. 582 M.D. 2014, filed July 8, 2015), 2015 WL 5460111 (unreported) (unappealed
Commonwealth agency order may be enforced through mandamus).



                                            11
              Section 1301(b) of the RTKL imposes an “automatic stay” upon the
filing of an appeal to a final determination. See Office of Open Records v. Center
Twp., 95 A.3d 354, 364 (Pa. Cmwlth. 2014) (en banc). That “stay [of] the release
of documents [remains in effect] until a decision [by a Chapter 13 court] is issued.”
65 P.S. §67.1301(b).


             As analyzed above, Petitioner’s timely cross-petition constitutes a
petition for review filed by a requester under Section 1301(a) of the RTKL. A stay
under Section 1301(b) is thus automatic, relieving DHS of any duty to disclose.


             Mindful that Petitioner may withdraw or discontinue his challenge in
the Consolidated Appeals, we go one step further and consider whether the Direct-
Interest Participants’ petitions for review triggered the automatic stay.


             In addition to the principles that guide our statutory interpretation of
Section 1301(a) of the RTKL, we weigh heavily the long-standing practice that
permits third-party participation in RTKL appeals. See, e.g., Wintermantel; Bagwell
2016; Dep’t of Corr. v. Maulsby, 121 A.3d 585 (Pa. Cmwlth. 2015); E. Stroudsburg
Univ. Found. v. Office of Open Records, 995 A.2d 496 (Pa. Cmwlth. 2010) (en banc).
Moreover, the General Assembly has already pre-judged that the threat of disclosing
a non-public record warrants an automatic stay. Cf. Grine v. Cnty. of Centre, 138
A.3d 88 (Pa. Cmwlth. 2016) (en banc) (harm from improper disclosure is irreparable).
Thus, it would be a waste of judicial resources to require a third party protecting a




                                          12
recognized interest in non-disclosure to file a motion for a stay pending appeal under
Process Gas5 or other applicable standard.


                Accordingly, we construe the automatic stay provisions to apply to
Direct-Interest Participants’ petitions for review. To do otherwise would nullify
our RTKL jurisprudence recognizing third-party appeal rights as on equal footing
with that of a requester or an agency as specified in Section 1301(a) of the RTKL.


                By necessary implication, the stay applies to all records at issue
regardless of the basis for the exemption, who asserted it, or who preserved it. The
alternative encourages piecemeal litigation, whereby parts of a final determination
are enforced and others are disputed, creating confusion for the parties and the courts.


                                  2. Remaining Objections
                Because Petitioner fails to state a claim for mandamus relief, we
briefly review Health Plans’ remaining objections in the interest of completeness.
In sum, we discern no merit in the remaining preliminary objections.6


       5
           Pa. Pub. Util. Comm’n v. Process Gas Consumers Grp., 467 A.2d 805 (Pa. 1983).
       6
          We are unpersuaded by Health Partners’ remaining objections under the Defend Trade
Secrets Act (DTSA), the lis pendens doctrine, and as to the adequacy of a legal remedy in our
appellate jurisdiction.
        In this context, the DTSA is comparable to the Copyright Act, 17 U.S.C. §§101-1332, in
that neither federal statute exempts records from disclosure. Ali v. Phila. Planning Comm’n, 125
A.3d 92 (Pa. Cmwlth. 2015). The DTSA does not expressly provide the rates are confidential or
trade secrets; rather, the statute creates a private right of action to prosecute the improper use of
trade secrets. Notably, the DTSA does not designate the rates at issue as trade secrets. Health
Partners presumes the trade secret status applies to such rates, which is necessary for application
of the DTSA. The DTSA does not exempt the rates so as to render them non-public.
(Footnote continued on next page…)

                                                13
                                       III. Conclusion
               Petitioner predicated his Mandamus Petition on entitlement to enforce
the Disclosure Order, which is the same order challenged in the Consolidated
Appeals. Because the right to requested records has yet to be finally determined in
the Consolidated Appeals, we sustain Health Partners’ preliminary objections in
the nature of a demurrer, and we dismiss the Mandamus Petition with prejudice.




                                             ROBERT SIMPSON, Judge




(continued…)

        The doctrine of lis pendens requires proof of three elements: (1) the prior case is the
same; (2) the parties are substantially the same, and, (3) the relief requested is the same. Pa.
Pharmacists Ass’n v. Dep’t of Pub. Welfare, 733 A.2d 666 (Pa. Cmwlth. 1999). The three-
pronged test must be strictly applied when a party seeks to dismiss a claim under lis pendens.
Hillgartner v. Port Auth. of Allegheny Cnty., 936 A.2d 131 (Pa. Cmwlth. 2007). The
applicability of lis pendens “is purely a question of law determinable from an inspection of the
records in the two causes.” Id. at 138.
        Our comparison of Petitioner’s Mandamus Petition with his cross-petition reveals
differences in the types of relief sought. Here, he seeks an order mandating DHS’ compliance
with the Disclosure Order. In the Consolidated Appeals, he challenges OOR’s rationale in the
Final Determination, and he seeks a remand and reopening of the record to allow his submission
of additional evidence. Although there is some overlap as to enforcement, and Petitioner briefs
many of the same issues in both actions, the requested relief is not the same.
        Also, as to having an adequate remedy by virtue of his cross-petition pending in our
appellate jurisdiction, Petitioner’s claim is not ripe for enforcement. Therefore, the Consolidated
Appeals do not currently offer an adequate enforcement remedy.



                                               14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bruce G. Baron,                          :
                        Petitioner       :
                                         :
            v.                           :   No. 503 M.D. 2016
                                         :
Commonwealth Department                  :
of Human Services; and,                  :
Health Partners Plans, Inc.,             :
                          Respondents    :

                                     ORDER

            AND NOW, this 21st day of September, 2017, the preliminary
objections filed by Health Partners Plans, Inc., are SUSTAINED, and the petition
for review is DISMISSED WITH PREJUDICE.



                                        ROBERT SIMPSON, Judge
