IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David D. Richardson, :
Petitioner :
:
v. : No. 1584 C.D. 2016
: Submitted: March 31, 2017
PrimeCare Medical, Inc., :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: June 8, 2017
David Richardson, pro se, petitions for review of a final determination
of the Pennsylvania Office of Open Records (OOR) denying his request for access
to records pursuant to the Right-to-Know Law.1 Richardson argues that OOR
erred in holding that the custodian of the records, PrimeCare Medical, Inc.
(PrimeCare), is not an agency subject to the Right-to-Know Law. Concluding that
we lack jurisdiction, we transfer the matter to the proper tribunal.
Richardson is currently incarcerated at the Chester County Prison. In
August 2016, he had an eye examination with PrimeCare, which has contracted
with the County to provide medical services to inmates. Richardson was told that
he needed eyeglasses. On August 15, 2016, Richardson submitted a request to
PrimeCare for a copy of its “written policy regarding providing eyeglasses to
inmates, including, but not limited to, expenses thereof and exceptions made for
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
indigent inmates.” Certified Record, Item No. 1, at 2. The request was addressed
to 501 S. Wawaset Road, West Chester, Pennsylvania, 19382, where the County
Prison is located. Richardson did not receive a response; accordingly, on August
26, 2016, he filed an appeal with OOR. On August 31, 2016, OOR dismissed his
appeal, finding that “[PrimeCare] is not an ‘agency’ subject to the [Right-to-Know
Law].” Certified Record, Item No. 2.
Richardson filed a petition for this Court’s review of OOR’s final
determination, arguing that OOR erred in dismissing his appeal. He argues that
“where [the] County contracts its medical service responsibilities to inmates out to
[PrimeCare], [Section 506(d)(1) of the Right-to-Know Law], 65 P.S.
§67.506(d)(1)[2] clearly puts [PrimeCare] in the same position as an ‘agency.’”
Petitioner Brief at 4. In response, PrimeCare filed a notice of nonparticipation,
claiming that it is a private company providing health care services at the County
Prison, and its policies and procedures are “confidential proprietary information
and common law protected trade secrets … [which are] exempt from disclosure
pursuant to the [Right-to-Know Law].” Notice of Nonparticipation at 2.
Nevertheless, PrimeCare states that it “is not opposed to providing [Richardson]
with a copy of the policy in question” and has so informed Richardson. Id.
Therefore, PrimeCare argues, this appeal should be dismissed as moot.
2
Section 506(d)(1) of the Right-to-Know Law provides:
A public record that is not in the possession of an agency but is in the possession
of a party with whom the agency has contracted to perform a governmental
function on behalf of the agency, and which directly relates to the governmental
function and is not exempt under this act, shall be considered a public record of
the agency for purposes of this act.
65 P.S. §67.506(d)(1).
2
By order dated February 22, 2017, this Court directed Richardson to
show cause as to why this matter is not moot. Richardson filed a response,
arguing, inter alia, that he “did not appeal from the denial of a records request, but
from the [OOR’s] determination that [PrimeCare] was not a ‘local agency’ under
the Right-to-Know Law.” Petitioner Response, ¶3. Richardson further stated that
he “is willing to voluntarily withdraw his petition for review if [PrimeCare]
releases the eyeglass policy into [his] physical custody.” Petitioner Response, ¶6.
At the outset, we address the threshold question of whether this Court
has jurisdiction to hear this appeal. “The issue of subject matter jurisdiction may
be raised by the parties at any stage of the proceedings or by the court sua sponte.”
Pennsylvania For Union Reform v. Centre County District Attorney’s Office, 139
A.3d 354, 356 (Pa. Cmwlth. 2016) (quoting Greenberger v. Pennsylvania
Insurance Department, 39 A.3d 625, 629-30 n.5 (Pa. Cmwlth. 2012)).
Jurisdiction over a final determination of the OOR is conferred by
Section 1301(a) of the Right-to-Know Law, which directs this Court to hear
appeals of final determinations “relating to a decision of a Commonwealth agency,
a legislative agency, or a judicial agency.” 65 P.S. §67.1301(a). Final
determinations “relating to a decision of a local agency,” whether issued by OOR
or designated appeals officers, shall first be appealed to “the court of common
pleas for the county where the local agency is located.” Section 1302(a) of the
Right-to-Know Law, 65 P.S. §67.1302(a); Pennsylvania For Union Reform, 139
A.3d at 357.
Here, Richardson asserts that PrimeCare functions as a local agency
because it contracts with the County to provide health care services to inmates at
the County Prison. OOR dismissed Richardson’s appeal, finding that PrimeCare is
3
not an agency subject to the Right-to-Know Law. Because neither the County nor
PrimeCare is a Commonwealth agency, a legislative agency or judicial agency, this
Court lacks jurisdiction over the instant appeal.
Section 5103(a) of the Judicial Code governs the process for handling
improperly filed appeals; it provides in pertinent part:
If an appeal or other matter is taken to or brought in a court or
magisterial district of this Commonwealth which does not have
jurisdiction of the appeal or other matter, the court or
magisterial district judge shall not quash such appeal or
dismiss the matter, but shall transfer the record thereof to the
proper tribunal of this Commonwealth, where the appeal or
other matter shall be treated as if originally filed in the
transferee tribunal on the date when the appeal or other matter
was first filed in a court or magisterial district of this
Commonwealth….
42 Pa. C.S. §5103(a) (emphasis added). See also PA. R.A.P. 751. Accordingly, we
transfer the matter to the proper tribunal under Section 1302(a) of the Right-to-
Know Law, 65 P.S. §67.1302(a), which is the Court of Common Pleas of Chester
County.
_________________________________________________
MARY HANNAH LEAVITT, President Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David D. Richardson, :
Petitioner :
:
v. : No. 1584 C.D. 2016
:
PrimeCare Medical, Inc., :
Respondent :
ORDER
AND NOW, this 8th day of June, 2017, pursuant to Section 5103(a) of
the Judicial Code, 42 Pa. C.S. §5103(a), the above-captioned matter is
TRANSFERRED to the Court of Common Pleas of Chester County for disposition
in accordance with Section 1302(a) of the Right-to-Know Law, 65 P.S.
§67.1302(a).
Jurisdiction relinquished.
________________________________________________
MARY HANNAH LEAVITT, President Judge