                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Colonial Surety Company,                        :
                  Appellant                     :
                                                :   No. 859 C.D. 2016
               v.                               :
                                                :   Submitted: November 4, 2016
Redevelopment Authority of the                  :
County of Fayette                               :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                       FILED: July 25, 2017


               Colonial Surety Company (Colonial) appeals from the May 16, 2016
order of the Court of Common Pleas of Fayette County (trial court), which sustained
the Redevelopment Authority of the County of Fayette’s (Authority) preliminary
objection in the nature of a demurrer for failure to state a cognizable claim and
dismissed Colonial’s petition to enforce the Final Determination of the Office of
Open Records (OOR).


                                Facts and Procedural History
               On February 26, 2015, Colonial submitted a request to the Authority
pursuant to the Right-to-Know Law (RTKL),1 seeking, inter alia, certain records

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101 – 67.3104.
related to the “Business Park project.” (Reproduced Record (R.R.) at 10a-11a.) The
Authority partially granted Colonial’s request, but denied the remainder, asserting
that it lacked sufficient specificity to enable the Authority to ascertain what records
were requested. Colonial appealed the Authority’s determination to the OOR. On
June 3, 2015, the OOR issued a Final Determination granting Colonial’s appeal and
ordering the Authority to provide Colonial with all responsive records within thirty
days. (R.R. at 10a-14a.)
             By letter dated August 5, 2015, Colonial’s counsel contacted the
Authority’s counsel, seeking compliance with the OOR’s order. In response, the
Authority’s counsel advised Colonial’s counsel that the Authority had provided
Colonial with a letter dated July 15, 2015, that contained a link to a Google Drive
account which purportedly contained the requested records. The Authority’s counsel
forwarded the July 15, 2015 letter to Colonial’s counsel along with a disc containing
the records that were uploaded to the Google Drive account. (R.R. at 16a-17a.)
             By letter dated January 27, 2016, Colonial’s counsel advised the
Authority’s counsel that the Authority remained in violation of the RTKL as well as
the OOR’s order, and stated that “[a]s I assume you are aware, we are unable to open
the disc. You need to either send me the documents or[] a disc with them that we can
open. Otherwise, Colonial promptly will seek sanctions.” (R.R. at 27a.)
             By letter dated February 3, 2016, the Authority’s counsel advised
Colonial’s counsel that there were 993 pages of responsive records and stated that it
would cost $248.28 for photocopying of the same. As such, the Authority’s counsel
requested a check for that amount and an affirmation in writing that Colonial would
reimburse the Authority for the cost of postage expended. (R.R. at 28a.)




                                          2
                On February 5, 2016, Colonial filed a petition to enforce the OOR’s
Final Determination with the trial court. In its petition, Colonial alleged, inter alia,
that the Authority acted in bad faith by intentionally denying Colonial access to the
requested records and refusing to produce the requested records by sending a disc that
was impossible to open. Accordingly, Colonial sought a sanction of $1,500.00 and a
civil penalty of $500.00 per day until the records are provided.2 (R.R. at 1a, 3a-9a.)
                The Authority filed preliminary objections,3 alleging, inter alia, a
demurrer pursuant to Pennsylvania Rule of Civil Procedure No. 1028(a)(4).
According to the Authority, Colonial’s petition failed to state a cognizable claim
under the RTKL because the Authority complied with the OOR’s Final
Determination by producing the responsive records in three forms: the Google Drive
link; the disc; and hard copy upon payment of photocopying and postage costs. (R.R.
at 18a-24a.)
                By opinion and order dated May 16, 2016, the trial court sustained the
Authority’s preliminary objection in the nature of a demurrer, reasoning that:

                       Turning to the first preliminary objection, the
                Redevelopment Authority argues that it has complied with
                the [OOR’s] Final Determination by providing the
                requested documents in three formats. The Record is
                unequivocally clear that this is factually correct, and any
                assertion by [Colonial’s] counsel to the contrary
                exemplifies the litigious nature he has displayed in this
                action and with this Court in its companion case. Here, the
                Petition is legally insufficient because the Redevelopment
       2
           See Section 1305 of the RTKL, 65 P.S. §67.1305 (addressing civil penalties).

       3
          In its preliminary objections, the Authority also alleged that the appropriate mechanism to
enforce the OOR’s Final Determination is a mandamus action; that the trial court did not have
jurisdiction over Colonial’s petition to enforce the OOR’s Final Determination; and that Colonial’s
petition lacked sufficient specificity. (R.R. at 21a-24a.)



                                                  3
               Authority has fully and timely complied with the Final
               Determination.

                     At the time set for oral argument, when asked by the
               Court about the lack of response to the compact disc from
               August 12, 2015 through January 27, 2016, [Colonial’s]
               counsel responded that January 27, 2016 was his first
               attempt to view the documents on the disc. A delay of 186
               days attributable to [Colonial’s] counsel’s lack of diligence
               followed immediately by his filing this Petition requesting
               monetary civil penalties was nothing more than [Colonial’s]
               counsel’s attempt to excuse his own inaction for over five
               months.

                     Upon the facts as plead [sic] by [Colonial] and
               accepted as true at this stage, no remedies could ever be
               warranted pursuant to the “Denial of access” and “Failure to
               comply with court order” sections of the [RTKL].
               [Colonial] has failed to state any cognizable action under
               the [RTKL] since the Redevelopment Authority has fully
               complied with the Final Determination of the [OOR] and
               accordingly, the first preliminary objection is sustained and
               the Petition is DISMISSED.          Upon this ruling, the
               remaining preliminary objections have been rendered moot.
(Trial court op. at 3-4.)
               Colonial appealed the trial court’s order to this Court.
               On appeal,4 Colonial argues that the trial court erred in sustaining the
Authority’s preliminary objection on the basis that the Authority complied with the
OOR’s Final Determination when Colonial’s petition alleged that the Authority
intentionally failed to do so. Colonial also argues that the trial court erred by granting


       4
          “When an appellate court rules on whether preliminary objections in the nature of a
demurrer were properly sustained, the standard of review is de novo and the scope of review is
plenary.” Gale v. City of Philadelphia, 86 A.3d 318, 319 n.1 (Pa. Cmwlth. 2014). “We may affirm
the granting of preliminary objections only when it is clear and free from doubt that, based on the
facts pled, the plaintiff will be unable to prove facts legally sufficient to establish a right to relief.”
Id.



                                                    4
the Authority’s improper speaking demurrer and by failing to make necessary
findings of fact and conclusions of law. Moreover, Colonial maintains that the trial
court’s determination was erroneous because its findings were not supported by
competent evidence, and because the Authority’s preliminary objections were not
verified. Finally, Colonial avers that the trial court erred as a matter of law when it
determined that Colonial failed to state a cognizable claim upon which relief could be
granted.


                                     Discussion
            In ruling on preliminary objections, this Court accepts as true all well-
pleaded material allegations in the petition or complaint, any responses allowed under
Pa.R.C.P. No. 1017(a)(4), and any reasonable inferences that may be drawn from the
averments. Schaffer v. Batyko, 323 A.2d 62, 65-66 (Pa. Super. 1974) (trial court
erred in not considering affidavit attached to plaintiff’s response to defendant’s
preliminary objections).     However, we are not bound by legal conclusions,
unwarranted factual inferences, argumentative allegations, or expressions of opinion
encompassed in the petition. Armstrong County Memorial Hospital v. Department of
Public Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013). This Court may sustain
preliminary objections “only when the law makes clear that the petitioner cannot
succeed on his claim, and we must resolve any doubt in favor of the petitioner.” Id.
“All doubts shall be resolved in favor of overruling the demurrer.” Commonwealth
ex rel. Fisher v. Allstate Insurance Company, 729 A.2d 135, 139 n.6 (Pa. Cmwlth.
1999).
            Moreover, “[w]hen ruling on a preliminary objection in the nature of a
demurrer, a court should severely limit its use of judicial notice, because the purpose



                                          5
of a demurrer is to challenge the legal basis for a complaint, not its truthfulness.”
Stilp v. Commonwealth, 910 A.2d 775, 791 (Pa. Cmwlth. 2006).                  “Fact-based
defenses, even those which might ultimately inure to the defendant’s benefit, are thus
irrelevant on demurrer.” Betts Industries, Inc., v. Heelan, 33 A.3d 1262, 1265 (Pa.
Super. 2011). However, the filing of a response to preliminary objections would be
superfluous if the trial court were unable to consider any averments or admissions
within such a response. Higbee Corporation v. Kennedy, 428 A.2d 592, 593 (Pa.
Super. 1981).
            In its petition to enforce, Colonial alleged, in relevant part:

            10. By letter dated August 12, 2015, the Authority’s
            counsel sent a reply, see Exhibit “C” hereto, which falsely
            claimed that the Authority had previously responded by e-
            mail of July 15, 2015. See Id. Additionally, Mr. Garvin
            claimed to provide a “disc containing the documents.” See
            Id. But, as Mr. Garvin obviously knew, Colonial’s counsel
            did not have the required permission to open the disc. The
            Authority, in bad faith, has wilfully [sic] violated the Order
            of June 3, 2015.

                                    *      *       *

            13. The Authority has intentionally failed and refused to
            produce the documents to Colonial as ordered.

                                    *      *       *

            20. The Authority has intentionally denied Colonial access
            to the requested records in bad faith.

            21. The Authority knowingly failed and refused to timely
            produce the requested records by, inter alia, sending a disc
            that was impossible to open.

            22. The Authority has acted in bad faith by not properly
            responding to Colonial’s Right-to-Know Act request, by
            ignoring the Final Determination of the Office of Open

                                           6
             Records, and by sending an impossible to open disc so as to
             wrongfully feign compliance.

             23. The Authority has wilfully [sic] and with wanton
             disregard deprived Colonial of access to the requested
             public records.

                                   *      *      *

             32. The Authority was ordered to deliver certain requested
             records to Colonial by the Office of Open Records and has
             wilfully [sic] failed to do so.
(R.R. at 5a-8a.)
             Here, the trial court determined that Colonial’s petition was legally
insufficient because “[t]he [r]ecord is unequivocally clear” that the Authority “fully
and timely complied with the Final Determination.” (Trial court op. at 3.) As such,
the trial court concluded that “no remedies could ever be warranted pursuant to the
‘Denial of access’ and ‘Failure to comply with court order’ sections of the [RTKL].”
Id. at 3-4. However, according to Colonial’s petition, the Authority’s counsel’s claim
that it provided a letter to Colonial containing a Google Drive link with the
responsive records was false and Colonial was unable to access the disc that
purportedly contained the responsive records because it did not have the required
permission to do so. Colonial filed a verified answer to the Authority’s preliminary
objections and there admitted receipt of the February 3, 2016, letter that offered to
provide paper copies of the requested documents upon payment of duplication and
postage costs, which is authorized under section 1307 of the RTKL.            65 P.S.
§67.1307. (Colonial’s Answer, ¶9.)
             Accordingly, the trial court did not err in considering all the verified
pleadings before it, which included not just factual averments within Colonial’s
petition but also the factual averments contained within Colonial’s answer to the


                                          7
Authority’s preliminary objections.     As our Superior Court has recognized, “To
determine the propriety of an order granting preliminary objections in the nature of a
demurrer, we must [accept] as true all well-pleaded averments of fact of the party
against whom the motion is granted and [consider] against him only those facts that
he specifically admits.” Higbee Corporation, 428 A.2d at 593 (internal quotation
marks omitted).
             Moreover, if Colonial believed that the Authority was seeking to proffer
a speaking demurrer in its preliminary objections, Colonial had a remedy available to
it under the Rules of Civil Procedure, namely, the filing of preliminary objections to
the preliminary objections filed by the Authority. Pa.R.C.P. No. 1032(a) (“A party
waives all defenses and objections which are not presented . . . by preliminary
objection . . . .”)   Indeed, it is axiomatic that this is the required remedy in
Pennsylvania, and failure to use it results in waiver of arguments that may have been
valid. See, e.g., Philadelphia Fraternal Order of Correctional Officers v. Rendell,
701 A.2d 600, 607 (Pa. Cmwlth. 1997).           Notably, nowhere in its answer does
Colonial object to the Authority’s preliminary objections. Thus, it cannot claim that
the trial court erred in considering anything outside Colonial’s petition to enforce.
             Accordingly, the trial court’s order is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                            8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Colonial Surety Company,              :
                  Appellant           :
                                      :    No. 859 C.D. 2016
            v.                        :
                                      :
Redevelopment Authority of the        :
County of Fayette                     :


                                   ORDER


            AND NOW, this 25th day of July, 2017, the May 16, 2016 order of the
Court of Common Pleas of Fayette County is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
