           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dave Bohman and WNEP-TV                       :
                                              :
                                              :
                    v.                        :   No. 1238 C.D. 2017
                                              :   Argued: December 11, 2018
Clinton Township Volunteer                    :
Fire Company,                                 :
                       Appellant              :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge1
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                              FILED: May 8, 2019


      Clinton Township Volunteer Fire Company (Fire Company) appeals from an
Order of the Court of Common Pleas of Lycoming County (trial court), dated August
9, 2017, which affirmed an Office of Open Records’ (OOR) Final Determination
that concluded Fire Company was a local agency subject to the Right-to-Know Law
(RTKL).2 Consistent with our recent decision in Pysher v. Clinton Township
Volunteer Fire Company, __ A.3d __, (Pa. Cmwlth., No. 1237 C.D. 2017, filed May
8, 2019), we vacate the trial court’s Order and remand for development of the factual
record.3

      1
        This case was reassigned to the authoring judge on February 27, 2019.
      2
        Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
      3
        This case was argued seriately with Pysher.
       On February 21, 2017, Dave Bohman and WNEP-TV (Requesters) submitted
a letter to Fire Company, requesting various documents under the RTKL.4
(Reproduced Record (R.R.) at 1.) Fire Company’s Solicitor advised Requesters by
letter dated March 1, 2017, that Fire Company would not be responding to the
request because Fire Company was not a local agency subject to the RTKL. (Id. at
8.) Requesters filed a timely appeal to OOR, which invited the parties to supplement
the record. According to OOR’s Final Determination, Requesters submitted a
position statement and sworn affidavit from Todd Pysher,5 who is a resident and
taxpayer of Clinton Township (Township), in which he “detail[ed] the process by
which . . . Fire Company receives support from the Township,” as well as
“information from . . . Fire Company’s website regarding the municipal fire tax . . .
[and] Fire Company’s tax reports for the years 2011-2016.” (Final Determination at
2.) Fire Company also submitted a position statement wherein it reiterated it was
not a local agency.6 No hearing was held or requested.
       On April 10, 2017, OOR issued its Final Determination, granting Requesters’
appeal and directing Fire Company to provide all documents responsive to the

       4
           In particular, Requesters sought:

       1- Copies of all loans from [Fire Company] to Todd Winder from 2010 to present
          including terms, interest, repayment, and collateral.
       2- Minutes of [Fire Company] meetings where loans to Todd Winder from 2010
          to present were approved, including roll call votes.
       3- Minutes of [Fire Company] meetings where loans to Todd Winder from 2010
          to present were forgiven, including roll call votes.

(Reproduced Record (R.R.) at 1.)
        5
          Mr. Pysher was the requester and respondent in Pysher.
        6
          Neither Requester’s position statement with supporting documents nor Fire Company’s
position statement are part of the trial court’s original record.


                                               2
request within 30 days. OOR stated the sole issue before it was whether Fire
Company was a local agency, such that it would be subject to the RTKL. (Id. at 4.)
In its Final Determination, OOR acknowledged that some courts of common pleas
have held volunteer fire companies are local agencies for purposes of the RTKL,
whereas other courts of common pleas have not.                      OOR stated that it also
“consider[ed] case law finding firefighting to be a governmental activity” and
volunteer fire companies being considered government agencies under other
statutes. (Id.) Accordingly, OOR found Fire Company was a local agency and
because it did not meet its burden of proving that the requested records were exempt
from disclosure, ordered Fire Company to provide all responsive documents within
30 days.
       Fire Company filed a timely petition for review with the trial court, which
took no additional evidence.           On August 9, 2017, the trial court denied Fire
Company’s petition, affirmed OOR’s Final Determination, and directed Fire
Company to provide all responsive documents within 30 days for the same reasons
it stated in Pysher. Fire Company now appeals to this Court.
       On appeal,7 Fire Company argues it is a private, nonprofit corporation that
does not perform a government function. It compares itself to any other contractor
that enters into a contract with a municipality to provide a service. Fire Company
acknowledges that it is entitled to immunity under the act commonly referred to as
the Political Subdivision Tort Claims Act (Tort Claims Act), 8 but claims immunity
does not equate to a conclusion that it is a local agency under the RTKL. Although


       7
          Our review is “limited to determining whether findings of fact are supported by competent
evidence or whether the trial court committed an error of law, or an abuse of discretion in reaching
its decision.” Kaplin v. Lower Merion Twp., 19 A.3d 1209, 1213 n.6 (Pa. Cmwlth. 2011).
        8
          42 Pa. C.S. §§ 8541-8542.


                                                 3
it receives some public funds, Fire Company argues this does not make it an agency
or instrumentality of the Township. Fire Company argues if it was subject to the
RTKL, it would have a chilling effect on membership. Finally, it asserts it already
reports expenditures to the Township.9 Fire Company asks this Court to reverse the
trial court’s Order and hold volunteer fire companies, such as itself, are not local
agencies subject to the RTKL.
       As we explained in Pysher, in order to determine whether Fire Company is a
local agency under the RTKL, a number of factors should be considered, including
the degree of governmental control, the nature of the organization’s functions, and
financial control. Pysher, __ A.3d at __, slip op. at 12 (citing In re Right to Know
Law Request Served on Venango County’s Tourism Promotion Agency and Lead
Economic Development Agency, 83 A.3d 1101, 1108 (Pa. Cmwlth. 2014)). Here,
like Pysher, there are no facts of record that we can review. While OOR’s Final
Determination eludes to an affidavit and other documents purporting to show at least
some financial relationship between Fire Company and Township, those documents
were not made part of the record before the trial court. Moreover, the trial court took
no additional evidence. Based on the record before this Court, and the arguments of
the parties and amicus, we cannot consider those factors without a factual record.
       Accordingly, we must vacate the trial court’s Order and remand this matter
for factual development of the record, as set forth in Pysher.


                                            _____________________________________
                                            RENÉE COHN JUBELIRER, Judge


       9
         Requesters did not file a brief. Monroeville Volunteer Fire Co. No. 5 (Monroeville VFC)
sought to intervene in this matter but was denied by order dated March 12, 2018. It was, however,
permitted to file a brief as amicus curiae. In its amicus brief, Monroeville VFC made the same
arguments it made in Pysher, where it also filed an amicus brief.


                                               4
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dave Bohman and WNEP-TV               :
                                      :
                                      :
                  v.                  :   No. 1238 C.D. 2017
                                      :
Clinton Township Volunteer            :
Fire Company,                         :
                       Appellant      :

                                   ORDER


     NOW, May 8, 2019, the Order of the Court of Common Pleas of Lycoming
County, in the above-captioned matter, is VACATED, and this matter is
REMANDED for further proceedings consistent with the foregoing opinion.
     Jurisdiction relinquished.

                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dave Bohman and WNEP-TV                      :
                                             :
      v.                                     : No. 1238 C.D. 2017
                                             : ARGUED: December 11, 2018
Clinton Township Volunteer                   :
Fire Company,                                :
                 Appellant                   :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

CONCURRING AND DISSENTING
OPINION BY JUDGE CEISLER                                           FILED: May 8, 2019

      While I concur with the Majority that a remand in this matter is required, I
would remand for the sole purpose of determining whether the records requested
constitute records as defined by the Right-to-Know Law (RTKL).1 Recognition of
the critical role volunteer fire companies play in protecting life as well as preventing
the destruction and devastation of property and land, as well as consideration of the
historical and present relationship between volunteer fire companies and the
municipalities they serve, mandates a conclusion that volunteer fire companies are
local agencies under the RTKL. As the Majority does not so conclude, I must
respectfully dissent.
          Legislative and Judicial Treatment of Volunteer Fire Companies
      Our General Assembly has recognized the vital governmental function
performed by volunteer fire companies through multiple legislative enactments.

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 – 67.3104.
Indeed, an entire chapter of the Emergency Management Services Code2 is devoted
to volunteer firefighters.3
      A city, borough, or township may expend public funds to secure insurance or
compensation for volunteer firefighters killed or injured while going to, returning
from, or attending fires. 35 Pa.C.S. § 7403. An employer may not terminate a
volunteer firefighter who misses work while responding to a fire call, or discriminate
against an employee injured in the line of duty as a volunteer firefighter. 35 Pa.C.S.
§§ 7423 – 7424. An employer violating these provisions shall pay the disciplined or
terminated volunteer firefighter lost wages and benefits, as well as reasonable
attorney fees incurred. 35 Pa.C.S. § 7427. A volunteer fire company may nominate
any of its members as special fire police, who have full power to regulate traffic,
control crowds, and exercise other police powers necessary to facilitate the work of
the volunteer fire company at a fire or other event or emergency. 35 Pa.C.S. § 7435.
      Also contained within the Emergency Management Services Code is a
statutory scheme which encourages individuals to take part in the fire service as
volunteer firefighters through the creation of a volunteer firefighters’ relief
association.4 The purpose of such an association, which may receive funds from
municipal corporations, is to provide financial assistance to volunteer firefighters,
or the dependents of volunteer firefighters who lose their lives as a result of their
firefighting activities.      35 Pa.C.S. § 7413.   The volunteer firefighters’ relief
association may also receive funds under the Municipal Pension Plan Funding


      2
          35 Pa.C.S. §§ 7101 – 79a31.

      3
          35 Pa.C.S. §§ 7401 – 7437.

      4
          35 Pa.C.S. §§ 7411 – 7419.



                                         EC - 2
Standard and Recovery Act5 if a political subdivision has certified that the
association is affiliated with the political subdivision’s fire company. 35 Pa.C.S. §
7416(a).
       Legislative enactments governing volunteer firefighters are not limited to the
Emergency Management Services Code. Members of a volunteer fire company are
employees for purposes of Section 601(a)(1) of the Workers’ Compensation Act
when injured in the course of performing firefighting duties as authorized by the
municipality.6 Various sections in the Borough Code,7 The County Code,8 The First
Class Township Code,9 and The Second Class Township Code10 provide for the
appropriation of public funds for the operation and maintenance of fire companies,
including the construction, repair and maintenance of buildings for fire companies,
and training of fire company personnel, and provide for the promulgation of rules
and regulations for the government of fire companies. A volunteer fire company
may receive financial assistance through the Fire Company Grant Program
established at 35 Pa.C.S. § 7811. This program, which provides grants to improve
and enhance the capabilities of a fire company to provide firefighting, ambulance,

       5
        Act of December 18, 1984, P.L. 1005, as amended, 53 P.S. §§ 895.101 – 895.1131. The
purpose of the Municipal Pension Plan Funding Standard and Recovery Act is to strengthen
municipal pension plans by requiring certain funding standards.

       6
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1031(a)(1).

       7
           See 8 Pa.C.S. § 1202(35).

       8
           See Section 1951 of the Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1951.

       9
           See Art. XV, § 1502 of the Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. § 56516.

       10
       See Section 1803 of the Act of May 1, 1933, P.L. 103, as amended, added by the Act of
November 9, 1995, P.L. 350, 53 P.S. § 66803.



                                              EC - 3
and rescue services, is funded through an appropriation from the Commonwealth’s
General Fund. 35 Pa.C.S. § 7831. Section 1553(a) of The Second Class Township
Code11 imposes upon a township the responsibility to ensure fire and emergency
medical services are provided.
      As the majority opinion correctly notes, the mere funding of an institution
does not render it an agency or instrumentality of the state. Pa. State Univ. v. Derry
Twp. Sch. Dist., 731 A.2d 1272, 1274 (Pa. 1999). However, the legislation described
herein directs not only the different means by which a volunteer fire company may
be funded, but permits the promulgation of regulations under which it is organized
and operated, and provides various protections and benefits for its members.
      Pennsylvania courts have recognized the importance of these legislative
enactments when called upon to determine whether volunteer fire companies should
be afforded governmental immunity. In Zern v. Muldoon, 516 A.2d 799, 801-802
(Pa. Cmwlth. 1986), this Court engaged in a lengthy recitation of the history of
firefighting in the Commonwealth, from its origins in Philadelphia where
homeowners were required to keep two leather buckets for the purpose of fighting a
community fire, through 1855, when the city assumed total responsibility for fire
prevention and control of volunteer fire companies. This Court recognized that
while Philadelphia eventually established a permanent fully-funded fire department,
volunteer fire companies maintained a strong presence throughout the rest of the
Commonwealth. Id. at 802. The enactment of legislation which granted powers and
benefits to firefighters, and created funding mechanisms for volunteer fire
companies, demonstrated “an adoption by the Commonwealth and its citizenry of
the governmental characteristic of volunteer fire companies.” Id. at 805. Further,


      11
           Added by the Act of March 17, 2008, P.L. 47, 53 P.S. § 66553(a).


                                             EC - 4
volunteer fire departments, by virtue of their functions and accomplishments, had
acquired a “public, governmental character.” Id. (emphasis in original). Protection
of the public from fire was a governmental duty “capably performed by mostly
volunteer organizations.” Id. This Court’s determination that an entitlement to
governmental immunity existed was a result of a volunteer fire company’s “distinct
creation and present relationship to municipalities.”12 Id.
        Similarly, in Wilson v. Dravosburg Volunteer Fire Department No. 1, 516
A.2d 100 (Pa. Cmwlth. 1986), this Court reviewed the issue of whether a volunteer
fire company was entitled to governmental immunity under the PSTCA. Section
8541 of the PSTCA establishes governmental immunity for local agencies. 42
Pa.C.S. § 8541. “Local agency” is defined in Section 8501 of the Judicial Code as
“[a] government unit other than the Commonwealth government.” 42 Pa.C.S. §
8501.
        In construing the term “local agency” to include volunteer fire companies as
government units entitled to immunity, this Court recognized that volunteer fire
companies, in the performance of public firefighting duties, exist as entities acting
on behalf of local government units. Wilson, 516 A.2d at 102. While guided in part
by definitions set forth in the Judicial Code, this Court was also persuaded by the
historical, structural relationship existing between volunteer fire companies and the
local municipalities and the citizenry they serve. Id. Although the Court stressed its

        12
           While this Court determined that volunteer fire companies presently enjoyed
governmental immunity, the critical facts in Zern occurred during the time after the Supreme Court
abolished the immunity doctrine in Ayala v. Philadelphia Board of Education, 305 A.2d 877 (Pa.
1973), but before the General Assembly enacted what is commonly referred to as the Political
Subdivision Tort Claims Act (PSTCA), 42 Pa.C.S. §§ 8541-8542. Accordingly, the Court was
constrained to hold that the volunteer fire company involved in the underlying civil action did not
have immunity from suit for acts which took place in the interim.



                                             EC - 5
holding was limited to the immunity provisions of the PSTCA, we cannot on that
basis disregard its fundamental conclusion that protection of the public from fire is
an essential governmental duty.13
       In Harmony Volunteer Fire Co. and Relief Association v. Pennsylvania
Human Relations Commission, 459 A.2d 439 (Pa. Cmwlth 1983), this Court was
tasked with determining whether a volunteer fire company was an “employer” for
purposes of the Pennsylvania Human Relations Act.14 Given the nature of the work
performed by a fire company and the “pervasiveness of governmental involvement
in the company’s activities,” this Court concluded a fire company’s primary
function, the provision of fire and emergency services, was governmental in nature.
Id. at 442-43. The Court was guided in part by legislative enactments which created
an “intimate relationship” between the two entities. Id.
       In light of our prior decisions and their consideration of the historical and
present relationship between volunteer fire companies and the municipalities they
serve, as well as legislative enactments that assist with the governmental creation,
training, and operation of volunteer fire companies, and which afford governmental
protection for their members, I am compelled to conclude that the provision of
firefighting services is a governmental duty. As the entity which performs this duty
on behalf of Clinton Township, the Clinton Township Volunteer Fire Company (Fire
Company) constitutes a local agency under the RTKL.




       13
           See also Guinn v. Alburtis Fire Co., 614 A.2d 218 (Pa. 1992) (volunteer fire companies
entitled to governmental immunity even when not engaged in firefighting activities).

       14
            Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951 – 963.


                                              EC - 6
                               The Majority Opinion

      The legislative provisions and court decisions included in this dissent are
either dismissed or wholly ignored by the Majority.             Rather, the Majority
summarizes several decisions which review the issue of whether specific nonprofit
organizations are considered local agencies under the RTKL. From this analysis,
the Majority concludes that the original record in the present matter is devoid of facts
which allow this Court to determine whether the Fire Company is a local agency
under the RTKL. Majority, _ A.3d at _, slip op. at 1-2. Consequently, the Majority
asserts that a remand is required to evaluate the degree of governmental and financial
control Clinton Township exercises over the Fire Company and the nature of the Fire
Company’s functions. Id., slip op. at 14-15. I believe the decisions relied upon by
the Majority are readily distinguishable or inapplicable.
      Curiously, the Majority leads not with a case interpreting the RTKL, but rather
with Derry Township, in which our Supreme Court examined whether Penn State
University (PSU) was a Commonwealth agency exempt from the payment of real
estate taxes, as real estate owned by the Commonwealth cannot be subject to taxation
by political subdivisions absent statutory authority. Derry Twp., 731 A.2d at 1273.
The pivotal issue in Derry Township was not the Court’s interpretation of a statutory
definition, but whether PSU’s real property was so “thoroughly under the control of
the Commonwealth, that, effectively, the institution’s property functioned as
Commonwealth property.” Derry Twp., 731 A.2d at 1274. The Supreme Court
determined that where governmental representation on PSU’s board of trustees was
a minority interest, the authority to control and dispose of PSU’s real property was
not within the purview of the Commonwealth. Id. at 1275.




                                        EC - 7
       The Majority premises its reliance on Derry Township in the instant matter,
on the Supreme Court’s observation that “an entity’s status as an agent or
instrumentality varies, depending on the issue for which the determination is being
made.” Derry Twp., 731 A.2d at 1274. The issue being determined in Derry
Township was whether PSU was immune from the payment of real estate taxes, and
not whether it constituted a local agency under the RTKL. Furthermore, Derry
Township contained no analysis as to whether PSU performed a governmental
function. As such, I am unconvinced of the persuasive value of Derry Township in
the present matter.
       The next decision cited by the Majority, Safety, Agriculture, Villages and
Environment (S.A.V.E.), Inc. v. The Delaware Valley Regional Planning
Commission, 819 A.2d 1235, 1242 (Pa. Cmwlth. 2003), is likewise distinguishable.
The nonprofit at issue in S.A.V.E. was a commission created to facilitate a regional
planning program for several counties in Pennsylvania and New Jersey. Id. at 1237.
The petitioner, S.A.V.E., filed a request with the commission for disclosure of
information related to a proposed highway improvement project.                   This Court
reviewed the applicable provisions of what was commonly known as the Right-To-
Know Law (Law),15 which was repealed and replaced with the RTKL in 2008, to
determine whether the commission was an agency subject to the disclosure
requirements of the Law. Id. at 1241. The definition of agency at that time required
the entity have as its purpose “the performance of an essential governmental
function.”16      Id.    This Court concluded that, while the commission provided


       15
          Act of June 21, 1957, P.L. 390, as amended, formerly 65 P.S. §§ 66.1 – 66.9, repealed
by Section 3102(2)(ii) of the Act of February 14, 2008, P.L. 6.

       16
            65 P.S. § 66.1.


                                           EC - 8
important planning services to the Commonwealth and the participating counties,
those services were not “necessary for the survival of the Commonwealth,” and the
commission did not perform an essential governmental function. Id. at 1242.
Accordingly, the commission did not qualify as an “agency” subject to disclosure
under the Law. Id.

       Given that our decision in S.A.V.E. predates the current RTKL and involved
an interpretation of a dissimilar statutory definition,17 I question its relevance here.
More importantly, unlike the commission in S.A.V.E., it cannot be said that the
essential governmental function performed by the Fire Company is unnecessary for
the survival of the township it serves.
       The next decision relied on by the Majority, In re Right to Know Law Request
Served on Venango County’s Tourism Promotion Agency and Lead Economic
Development Agency, 83 A.3d 1101, 1109 (Pa. Cmwlth. 2014) (Venango County),
involved a nonprofit corporation with the stated purpose of promoting economic
development, recreation, and tourism. In reaching the conclusion that this entity was
not a local agency under the RTKL, this Court considered the following factors: 1)
What was the level of governmental authority imposed on the operations of the


       17
            The Law did not contain a definition of “local agency.” It defined only “agency” as
follows:

                Any office, department, board or commission of the executive
                branch of the Commonwealth, any political subdivision of the
                Commonwealth, the Pennsylvania Turnpike Commission, the State
                System of Higher Education or any State or municipal authority or
                similar organization created by or pursuant to a statute which
                declares in substance that such organization performs or has for its
                purpose the performance of an essential governmental function.

Former 65 P.S. § 66.1.


                                              EC - 9
nonprofit; 2) Whether the nonprofit performed a governmental function, and 3)
Whether the nonprofit’s receipt of public funds suggested a delegation of authority
on the part of the local government. Venango County, 83 A.3d at 1108.
        In applying those three factors to the facts of Venango County, this Court
determined that Venango County’s Tourism Promotion Agency and Lead Economic
Development Agency was not a local agency because of the lack of evidence
establishing government control over the nonprofit, the “proportionally small”
amount of funding received by the nonprofit from government sources, and the fact
that the nonprofit’s functions did not fulfill a core purpose of a government agency.
Id. at 1108-09. Importantly, this Court did not suggest equal weight must be given
to each factor or even that all factors must be considered in future local agency
analyses. Indeed, the Venango County Court recognized that the function an entity
performs weighs heavily in a local agency assessment. Id. at 1109.
        While Venango County is instructive, I believe the Majority’s reliance upon
that decision fails to acknowledge a critical difference between a nonprofit
organization that promotes tourism and recreation and one that performs the
essential governmental function of protecting lives and property from the ravages of
fire.
        Furthermore, of the three factors outlined in Venango County, one –
fulfillment of a core purpose of a government agency – has been met presently by
virtue of the fact that firefighting is an essential governmental duty. As to financial
control, the Venango County Court was influenced by the fact that the financial
assistance provided to the nonprofit by public funds “did not equate to any local
government delegation of authority, and the public funds were de minimis.” 83 A.3d
at 1109 (emphasis added). Here, regardless of the degree to which the Fire Company



                                       EC - 10
is funded by private or public funds, Clinton Township has unquestionably delegated
to the Fire Company its authority to provide essential firefighting services under
Section 1553(a) of The Second Class Township Code. As such, I believe the
percentage of the Fire Company’s budget represented by public funds is largely
irrelevant. With regard to governmental control, I recognize that the original record
filed with this Court is bereft of detail in that regard. However, as discussed herein,
Venango County does not mandate that each factor discussed – governmental and
financial control and the function performed by the nonprofit – be given equal weight
in a local agency analysis, or even direct that all factors must be met before a
nonprofit may be deemed a local agency. Presently, the critical governmental
function performed by the Fire Company merits greater weight be given to that
factor.
       Finally, the Majority cites Philadelphia Industrial Development Corporation
v. Ali (Pa. Cmwlth., No. 528 C.D. 2010, filed April 18, 2011) (PIDC), an unreported
panel decision18 that was relied upon by the Venango County Court. In PIDC, the
issue was whether PIDC, a nonprofit created to promote economic development in
Philadelphia, qualified as a local agency under the RTKL. Section 102 of the RTKL
defines local agency as “[a]ny local, intergovernmental, regional or municipal
agency, authority, council, board, commission or similar governmental entity.” 65
P.S. § 67.102 (emphasis added). As with the present matter, this Court was tasked
with interpreting the phrase “similar governmental entity.” In PIDC, this Court
applied the doctrine of ejusdem generis and construed the term “similar


       18
          PIDC was filed pursuant to Section 256(b) of this Court’s Internal Operating Procedures,
210 Pa. Code § 69.256(b), as one judge recused himself from consideration of the matter, and
the votes of the remaining commissioned judges resulted in a tie 4-4 vote.



                                            EC - 11
governmental entity” in light of the terms preceding it – local, intergovernmental,
regional or municipal agency, authority, council, board, and commission. PIDC,
slip op. at 3. Relying on legislative enactments such as the Intergovernmental
Cooperation Authority Act for Cities of the Second Class19 and the Municipality
Authorities Act20 for guidance, this Court concluded generally that local,
intergovernmental, regional or municipal agencies, authorities, councils, boards, and
commissions were entities established by a political subdivision pursuant to statutory
authorization. Id. at 4. PIDC did not constitute a “similar governmental entity,” or
a local agency under the RTKL, because it was not a political subdivision or an entity
created by a political subdivision, its members were not appointed by the governing
body of a political subdivision, it did not require a delegation of authority to fulfill
its core purpose of promoting economic development, and it could not be disbanded
by a political subdivision. Id.

          PIDC is distinguishable from the present case, as no analysis was made by the
PIDC Court relative to the functions performed by PIDC and whether those
functions were governmental in nature. As discussed extensively herein, firefighting
is an essential and critical governmental duty. Given the Fire Company’s status as
the entity which performs this duty, I conclude that it constitutes a governmental
entity.

                             Financial and Administrative Burdens

          In an Amicus brief filed in support of the Fire Company, the Monroeville
Volunteer Fire Company No. 5 (Amicus) argued that the administrative burden and


          19
               Act of February 12, 2004, P.L. 73, as amended, 53 P.S. §§ 28101-28707.

          20
               53 Pa.C.S. §§ 5601-5623.


                                               EC - 12
costs created by compliance with the RTKL would hamper the Fire Company’s
ability to fulfill its firefighting duties. Ironically, the Majority’s decision in fact
creates, even exacerbates, just such a fiscal and administrative burden. If the
Majority’s reasoning is accepted, going forward, every volunteer fire company faced
with a RTKL request would undergo a time-consuming process wherein it would be
required to present evidence related to its receipt of public and private funds,
government control, and the nature of its functions. Furthermore, a volunteer fire
company’s status as a local agency could conceivably rise and fall on the source of
its funding in a given year. Such a scheme, in which the Fire Company could rely
primarily on public funds for one fiscal year and be subject to the RTKL, but have
its status as a local agency rescinded in a subsequent year due to more successful
private fundraising efforts, is simply unworkable. This would create inconsistencies
throughout Pennsylvania regarding which volunteer fire company is a local agency
and which is not, despite the fact that the essential governmental function of each
entity is the same.
      Similarly, the issue of whether a volunteer fire company’s expenditures are
subject to the RTKL cannot turn on the source of those funds. Ostensibly, all funds
received by a volunteer fire company, regardless of origin, are required to support
its primary and essential governmental function of protecting life as well as
preventing destruction of land and property. As such, any disbursement of funds by
a volunteer fire company should be subject to public scrutiny. A transaction of the
type alleged in the present matter, where the Fire Company extended and
subsequently forgave a personal loan to the fire chief, should not be protected from
disclosure under the pretense it was made with private funds. Otherwise, a volunteer
fire company could simply shield questionable transactions through the expenditure



                                       EC - 13
of private, rather than public, funds. Such a lack of transparency into the workings
of government is exactly what the RTKL was intended to prevent.
                                    Conclusion

      The critical governmental function performed by volunteer fire companies
merits a conclusion that such entities are local agencies subject to the RTKL. As
such, I would affirm the order of the Court of Common Pleas of Lycoming County
on that basis. However, whether the requested information constitutes public
records is a preliminary, threshold issue that must be decided before reaching the
question of whether an exemption or privilege applies. Barkeyville Borough v.
Stearns, 35 A.3d 91, 94 (Pa. Cmwlth. 2012). “[A] requested piece of information
must constitute a ‘record’ under the RTKL in order to constitute a ‘public record’
under the RTKL.” Office of the Governor v. Bari, 20 A.3d 634, 640 (Pa. Cmwlth.
2011).   The burden of proving that a requested piece of information is a public
record lies with the requester. Barkeyville, 35 A.3d at 94. Absent from the record
is any indication that Dave Bohman and WNEP-TV, the appellees in this matter,
sustained their burden of proving the requested documents were public records.
Accordingly, I would remand this matter to the Trial Court for the sole purpose of
determining whether the records requested constituted records as defined by the
RTKL.




                                      __________________________________
                                      ELLEN CEISLER, Judge




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