Ernest E. Thomas, Jr., v. Lebanon County District Attorney and Open Records Officer

JUDGE’S OPINION

Ernest E. Thomas, Jr., v. Lebanon County District Attorney and Open Records Officer

 

Civil Action-Administrative Law-Right-to-Know Law-Grant Documentation-Existence of Documentation-Bad Faith

 

Ernest E. Thomas, Jr., (“Plaintiff”) filed a Motion for Default Judgment and Appeal pursuant to the Right-to-Know Law that denied his request for records pertaining to a Child Abuse Response Team grant that he alleged was approved by the Pennsylvania Commission on Crime and Delinquency including application records, communications regarding the grant process and records indicating the use of grant funds.  The request was denied on the basis that the sought documentation did not exist in the possession of the Lebanon County District Attorney.  Plaintiff asserts that the requested documents had been in the possession of the Lebanon County District Attorney at the time of his request and Defendants acted in bad faith by failing to disclose the documents.

 

1. It is impossible for an entity to provide documents to a requestor under the Right-to-Know Law which, even if they did exist at some time, no longer are in existence and did not exist at the time when the request for the documents was presented.

 

2. In light of the fact that a representative of the Lebanon County District Attorney’s Office indicated that a search of records revealed the presence of no documents relating to Plaintiff’s request and the representative through her experience in practice with that office since 2005 affirmed that the Lebanon County District Attorney’s Office did not receive funding from the alleged grant since that time, the record does not establish that documents sought were in the possession of the Lebanon County District Attorney’s Office at the time of the request such that Defendants acted in bad faith by failing to disclose them.

 

3. Since Defendants have no control over the mail process by the Pennsylvania Department of Corrections, Plaintiff is unable to establish that Defendants acted to delay his receipt of the Answer to the Motion for Default Judgment lodged by Defendants.

 

L.C.C.C.P. No. 2016-00881, Opinion by John C. Tylwalk, President Judge, September 1, 2021.

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

ERNEST E. THOMAS, JR.,                                  :         NO. 2016-00881

Plaintiff                                   :

:

1. :

:

LEBANON COUNTY DISTRICT ATTORNEY   :

And OPEN RECORDS OFFICER,                        :

Respondents                   :

 

ORDER OF COURT

 

AND NOW, this 1st  day of September, 2021, upon consideration of Plaintiff’s Appeal pursuant to the Right to Know Law, 65 P.S. §67.101 et seq, and Motion for Default Judgment, the Briefs submitted by the parties, Plaintiff’s Response to District Attorney’s Answer (Regarding Plaintiff’s Motion for Default Judgment), and the record of this matter, it is hereby Ordered as follows:

1. Plaintiff’s Motion for Default Judgment is DENIED.
2. Plaintiff’s Right-To-Know Request is DENIED.

BY THE COURT:

 

                                                          ______________________________, P.J.

                                                          JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Ernest A. Thomas, Jr./#GY2149/SCI Benner/301 Institution Drive/Bellefonte, 

           PA  16823 (via regular and certified mail no. 7017 1450 0001 1067 9216)

       Pier Hess Graf, Esquire/District Attorney

       Jamie Wolgemuth/Open Records Officer

       Michelle Howard/Court Administration

       Judith Huber, Esquire/Law Clerk

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

ERNEST E. THOMAS, JR.,                                  :         NO. 2016-00881

Plaintiff                                    :

:

1. :

:

LEBANON COUNTY DISTRICT ATTORNEY   :

And OPEN RECORDS OFFICER,                        :

Respondents                   :

 

 

APPEARANCES:

 

ERNEST E. THOMAS, JR.                                SRL

 

PIER HESS GRAF, ESQUIRE                           OFFICE OF DISTRICT ATTORNEY

ROBERT HARDING, ESQUIRE                          OF LEBANON COUNTY

 

OPEN RECORDS OFFICER                             SRL

 

OPINION, TYLWALK, P.J., SEPTEMBER 1, 2021.

 

Before us is Plaintiff’s Motion for Default Judgment and Right to Know Law (“RTKL”)  Appeal.  After the matter was listed for argument, we issued an Order dated May 10, 2021 denying both the Motion and the Appeal.  In our Opinion, we set forth the underlying facts as follows:

On March 7, 2016, Plaintiff Ernest E. Thomas, Jr. (“Requestor”) submitted a Right To Know Law[1] request to Lebanon County Open Records Officer Jamie A. Wolgemuth seeking:

 

All records pertaining to Child Abuse Response Team grant approved by the Pennsylvania Commission on Crime & Delinquency around December 12, 2000.  Records to include, but not be limited to;  1) Initial application records; 2) All interoffice communications, to include, but not be limited to, communications prior to, but concerning applying for the grant, the grant process, receipt of the grant, and how grant monies will be spent; and 3) Records indicating how grant monies were disbursed.

 

(Standard Right-To-Know Request Form, submitted March 7, 2016)

 

On April 15, 2016, former Assistant District Attorney Jonathan Faust, Esquire provided a response to the request:  “Our office is not in possession of these records as they do not exist.”  (Compliment to Notice of Appeal, filed July 14, 2016, Para. 2; Petition to Amend Appeal filed January 7, 2019, Para. 2)  By letter of May 19, 2016, former District Attorney David J. Arnold, Jr. provided the following in response to the request:

 

I am in receipt of your recent Right to Know appeal.  I have thoroughly reviewed the record in this matter including your original request and the response sent to you by Assistant District Attorney Jonathan Faust. …

 

…

 

After consideration, your appeal is hereby denied for the following reason:

 

The Lebanon County District Attorney’s Office is not in possession of any documents that are responsive to your request.   Specifically, the documents you seek do not exist.

 

(Letter dated May 19, 2016, David J. Arnold, Jr., former District Attorney of Lebanon County to Plaintiff).[2]

 

On June 8, 2016, Requestor filed a Notice of Appeal of the denial, naming the Lebanon County District Attorney as the respondent.  Requestor filed a Compliment to Notice of Appeal on July 14, 2016.  On January 7, 2019, Requestor filed a Petition to Amend Appeal seeking to add the County Open Records Officer as a respondent in this action.  We issued a Rule on the Petition and, after no response to the Rule was filed, we entered an Order on March 7, 2019 adding the Lebanon County Open Records Officer as an additional respondent.  Former Assistant District Attorney Robert Harding, Esquire filed a Brief in opposition to the appeal on February 1, 2019.  After a series of requests for extensions of time, Requestor’s Brief was filed on January 15, 2021.[3]

 

Requestor contends that the requested documents were in existence at the time of the request and that the Respondents have acted in bad faith in refusing to provide them to him.  Requestor relies on two communications which indicate that at some point the District Attorney’s Office was a recipient of a Child Abuse Team Grant from the Pennsylvania Commission on Crime and Delinquency (“PCCD”) and argues that these communications contradict the District Attorney’s representations that the requested documents do not exist.

 

The first communication is a letter from Paul Zechman, former Chief County Detective, to a prospective candidate for employment, James Grumbine, which is dated October 31, 2000.  In that letter, Zechman advised Grumbine that “I will be in contact with you at a future date after we have been notified of PCCD’s approval of this pending grant.”  (Exhibit “D” to Requestor’s Compliment to Notice of Appeal filed July 14, 2016)  In the second, a memorandum from Zechman to then County Personnel Director Gary Robson dated December 19, 2000, Zechman references Grumbine’s prospective employment, and explains that “[t]his detective position will be paid by the C.A.R.T. grant which was approved by the Pennsylvania Commission on Crime and Delinquency on December 12, 2000.”   (Exhibit “C” to Requestor’s Compliment to Notice of Appeal filed July 14, 2016)

 

On April 27, 2021, Requestor filed a Motion for Default Judgment asking the Court to grant his request for the records and alleging that the Respondents had acted in bad faith in failing respond to the Rule to Show Cause regarding the addition of the Open Records Officer to this action and for failing to file Briefs in opposition to the request.  The Commonwealth filed a verified Answer to the Motion on April 28, 2021.  In that Answer, Senior Deputy District Attorney Megan Ryland Tanner, Esquire, explains that the Lebanon County District Attorney’s Office does not participate in the Child Abuse Response Team grant, that the grant has not been in place since at least October 2005, and that the documents which are the subject of this request no longer exist.

 

(Opinion dated May 10, 2021 at pages 1- 5).

 

In addressing Requestor’s Motion for Default Judgment in our May 10, 2021 Opinion, we first noted that the Open Records Officer was a proper party to this action and found no bad faith on the part of Respondent for failing to oppose Requestor’s Petition to Amend the Appeal.  In addition, we noted that Respondent had filed its Brief in opposition to the RTKL Appeal and Answer to the Motion for Default Judgment in a timely fashion, thereby providing appropriate legal and factual support for its position.  We also examined the applicable provisions of the RTKL and relevant caselaw, and after applying those authorities to the circumstances of this request, we denied the Requestor’s Motion for Default Judgment and his RTKL Appeal due to our finding that the requested items did not exist at the time the request was made and the lack of bad faith on the part of Respondent.  (Opinion dated May 10, 2021 at pages 5-9)

After we issued the Order and Opinion of May 10, 2021, we received Plaintiff’s Response to District Attorney’s Answer (Regarding Plaintiff’s Motion for Default Judgment) from Requestor on May 17, 2021.[4]  Because we did not have the opportunity to review this document prior to issuing our decision on the RTKL Appeal and the Motion for Default Judgment, we issued an Order on May 19, 2021 in which we vacated our May 10, 2021 Order.[5]

In his Response to the District Attorney’s Answer, Requestor complains that Senior Deputy Assistant District Attorney Megan Ryland Tanner, Esquire[6] failed to provide appropriate documentation to support the averments of the Answer.  In the Response, Ryland Tanner, Esquire, explained that she had obtained information from a file maintained by the former Lebanon County District Attorney’s Office Right To Know Officer, Chief Dan Wright.    In addition, as mentioned in our May 10, 2021 Opinion, Ryland Tanner confirmed from her own knowledge and experience as a member of the District Attorney’s Office since 2005, that the requested documents no longer existed and that the District Attorney’s Office no longer participated in the Child Abuse Response Team grant.   Contrary to Requestor’s assertions, Ryland Tanner provided a verification to support these factual averments.  Because Ryland Tanner’s responses were based on her own knowledge and review of the District Attorney’s files, and were supported by a verification, we find no merit to Requestor’s contentions.

Requestor further complains that Respondent has engaged in subterfuge in delaying his receipt of the Answer to the Motion for Default Judgment.  He charges that the Department of Corrections’ (“DOC”) process for the handling of legal mail has resulted in delays in his filing of legal documents and his receipt of Respondent’s filings in this matter.   However, Respondent has no control over the DOC’s handling of inmate mail and any such delays have resulted in no prejudice to Requestor.  As soon as we realized that Requestor’s receipt of Respondent’s Answer to the Motion for Default Judgment had been delayed, we vacated the Order of May 10, 2021 and gave due consideration to Requestor’s Answer to that Response.

Requestor continues to complain that no brief was filed by Respondent in this matter.  This argument also lacks merit.  The court never directed the parties to file Briefs with regard to the Motion for Default Judgment and Respondent did file a timely Brief in response to Requestor’s RTK Appeal on February 1, 2019.

Finally, Requestor continues to contest Respondent’s assertions that the requested documents do not exist and argues that we should enter an Order directing that Respondent provide the requested items.  However, we believe that the documentation referred to in our May 10, 2021 Opinion, the information provided by Ryland Tanner based on her personal knowledge and her personal review of the records of the District Attorney’s Office, along with the applicable law, compels us to stand by the findings stated in our previous Order and Opinion.  It is simply impossible for Respondent to provide items to Requestor which, even if they did exist at some time, are no longer in existence and did not exist at the time this request was made.  In accordance therewith, we find no reason to disturb our previous decision and will issue an Order denying Requestor’s RTKL Appeal and Motion for Default Judgment.

[1] 65 P.S. §67.101 et seq.

[2] Attorney Faust is no longer employed by the Lebanon County District Attorney’s Office and, unfortunately, Attorney Arnold is deceased.

[3] The Court was unaware that Requestor’s Brief had been filed as no complimentary copies were provided to the Judges Chambers in accordance with Leb.Co.R.C.P. 52-205.2(a)(B).

[4] Requestor argues that this document should be considered as having been filed on April 19, 2021 based on the Prisoner Mailbox Rule since he has been incarcerated for the duration of this matter.

[5] Requestor filed a Notice of Appeal of our May 10, 2021 decision on or about June 4, 2021.  We notified the Commonwealth Court of Pennsylvania that the Order appealed from had been vacated by correspondence dated June 8, 2021.

[6] Attorney Ryland Tanner is no longer a member of the Lebanon County District Attorney’s Office.