J. & S. Brunermer v. Apollo Borough

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Janet and Scott Brunermer, :
Appellants :
:
v. :
: Nos. 746, 747, 748 & 749 C.D. 2022
Apollo Borough : Submitted: April 21, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: October 19, 2023

In these consolidated matters, Janet and Scott Brunermer (Brunermers)
appeal from the June 29, 2022, order of the Court of Common Pleas of Armstrong
County (trial court). The trial court dismissed the Brunermers’ mandamus petitions
arising from the Brunermers’ Right-to-Know Law (RTKL)1 requests to Apollo
Borough (Borough). The trial court also denied the Brunermers’ petitions seeking
to impose attorneys’ fees, penalties, and civil contempt on the Borough. Upon
review, we affirm.

I. Factual & Procedural Background
During June, July, and August of 2019, the Brunermers filed multiple
RTKL requests with the Borough seeking, inter alia, the following records:

1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
documents concerning a property they owned at 719 North Warren Avenue and
another property at 723 North Warren Avenue, correspondence previously sent by
Borough officials to the Brunermers, lists of vacant properties in the Borough, the
Borough zoning map, information concerning vacancy inspections generally,
sections of the Borough’s ordinances concerning vacancy and “change of use”
requirements, and the qualifications of the Borough’s zoning officer and code
officials.2 Reproduced Record (R.R.) at 104a-95a.
According to the Brunermers, the Borough either did not respond or did
not respond satisfactorily. R.R. at 104a-95a. The Brunermers thereafter obtained
final determinations from the Office of Open Records (OOR) finding the Borough
in violation of the RTKL and directing the Borough to provide responsive documents
or appeal within 30 days. Id. The Borough did not appeal and, according to the
Brunermers, the Borough again failed to respond or to respond satisfactorily. Id.
Therefore, between August and November of 2019, the Brunermers filed four
mandamus petitions with the trial court seeking enforcement of the OOR
determinations. Id. The Borough filed answers with new matter. Id. at 1a-21a.
On December 13, 2019, Deanna Shupe (Shupe), the Borough’s
secretary/treasurer and RTKL records officer, testified in a deposition. R.R. at
1398a. She was unaware of records pertaining to 723 North Warren Avenue but
stated that she and her assistant did their best looking for records pertaining to 719

2
The record includes a transcript of criminal proceedings associated with a July 2018
citation stating that the Brunermers failed to have the property at 719 North Warren Avenue
inspected and registered pursuant to the Borough’s vacancy ordinance. Reproduced Record (R.R.)
at 1336a-37a. The Brunermers disputed the Borough’s treatment of the property as vacant, but
after a June 24, 2019, bench trial, the trial court found the Brunermers (specifically Janet
Brunermer) guilty of violating the ordinance and imposed a $500 fine. Id. at 1390a. The
Brunermers’ first RTKL request in this matter was sent to the Borough on June 11, 2019. Id. at
104a.
2
North Warren Avenue (the Brunermers’ property) or the other aspects of the requests
and anything they found had been provided to the Borough’s counsel to fulfill the
requests. Id. at 1403a-07a & 1413a-16a.
Brenda Troup (Troup), the Borough’s zoning officer since 2012, also
testified in a deposition on the same date. R.R. at 1418a. She helped prepare the
Borough’s responses to the requests by looking through her inspection records and
providing what she found to the Borough’s counsel. Id. at 1422a. She stated that
the Borough keeps a list of vacant properties and inspection dates for those properties
but acknowledged that other related information such as water usage reports or
previous police citations for property upkeep or other violations might also have
information relative to vacancies in the Borough. Id. at 1425a. She was not aware
of a single centralized list that includes every vacant property and all information
about all vacant properties. Id. She is familiar with 719 North Warren Avenue and
stated that in late 2016, people connected with the church that operated there before
told her that the property was not being used and was for sale. Id. She did not
specify the building at that time for vacancy citations or formal inclusion on the
vacancy list because she decided to wait for new owners; therefore, there would be
no official vacancy documentation on the property prior to the Brunermers’
acquisition in April 2017. Id. at 1426a. Troup stated that she conducts most of the
Borough’s vacancy inspections; other people can do them, but that is a rare
occurrence and there is no formal list of alternative inspectors or their qualifications.
Id. at 1428a.
The trial court held a hearing on all four of the Brunermers’ petitions
on January 15, 2020. R.R. at 22a-64a. Testimony was taken from Grant Kanish
(Kanish), whose company contracted with the Borough to enforce construction

3
codes and manage “change of use” applications. Id. at 29a. His company kept
documents and drawings as needed during the pendency of an application and
inspection process but returned them to the Borough afterwards; his company did
not keep copies or know what happened to the documents after his company returned
them to the Borough. Id. at 32a-39a. He recalled inspecting 719 North Warren
Avenue in April 2017 and issuing a temporary certificate of use and occupancy when
the Brunermers acquired it; he told them that if they wanted to change its use from
the previous classification as a church to anything else, they would have to obtain a
permit for change of use or occupancy, which would go through his company. Id.
at 32a & 39a-40a & 45a. He also recalled speaking with Borough counsel about the
Brunermers’ RTKL requests and providing what he had, which was correspondence
between himself and the Brunermers concerning change of use or occupancy at the
property and a copy of the temporary occupancy permit he completed after the
inspection. Id. at 42a-45a. He stated that he prepared no reports or documents other
than the actual temporary occupancy permit he issued. Id. at 46a.
Scott Brunermer also testified on January 15, 2020. R.R. at 47a. He
stated that the Borough’s responses to the Brunermers’ RTKL requests did not
include any affidavits from Borough personnel. Id. He explained that in part, the
requests were intended to determine whether the property at 719 North Warren
Avenue had been cited as vacant when it was a church before the Brunermers
acquired it. Id. at 50a. He stated that the Borough’s initial response and provision
of a list of vacant buildings in the Borough was not “current,” but he acknowledged
that the Brunermers ultimately did receive updated information. Id. at 52a & 58a.
On the same day, January 15, 2020, the trial court issued a consent order
signed by both sides and directing the Borough to produce additional documents or

4
affidavits within 14 days. R.R. at 464a-69a. The order stated that failure to comply
could expose the Borough to penalties, attorneys’ fees, and sanctions pursuant to the
RTKL. Id. On January 28, 2020, the trial court issued a second consent order giving
the Borough an additional week to fully comply with the January 15, 2020, order.
Id. at 470a. On January 29, 2020, the Borough’s counsel sent the Brunermers about
60 pages of documents pursuant to the trial court’s January 15, 2020, order. Id. at
1441a-1502a. On February 5, 2020, the Borough sent the Brunermers Shupe’s
unsworn attestation stating that she had thoroughly searched the Borough’s files and
contacted everyone who might be able to provide information or documents
responsive to the RTKL requests. Id. at 1504a-08a. Shupe attested that everything
in the Borough’s possession had been provided in its previous responses up to and
including January 29, 2020. Id. at 1506a. The attestation also included a list of
items from the requests that Shupe could not produce because after her good faith
search, she concluded that the requested items either were not in the Borough’s
possession or did not exist. Id. at 1506a-08a.
On February 20, 2020, the trial court held a compliance hearing for the
now-consolidated matters. R.R. at 69a-78a. The Brunermers’ counsel announced a
stipulation by the parties that “there [are] no active cases open before the [OOR]
involving the [Brunermers] in Apollo Borough” and that as to the Brunermers’
property at 719 North Warren Avenue, “we are willing to stipulate that at this time
– at this moment the [B]orough has met its burden of proof that there are no
responsive records.” Id. at 70a-71a. However, the Brunermers reserved their right
to “make other arguments as set forth in our proposed order and our summary, our
legal position as to what happened related to those records and the timeline.” Id.
The Brunermers’ counsel then testified as to his RTKL expertise and qualifications

5
in association with the Brunermers’ reserved right to seek attorneys’ fees, which at
the time totaled roughly $28,000. Id. at 73a-77a. Shortly thereafter, the Brunermers’
counsel, seemingly contradicting his previous stipulation, stated that “this Court has
to decide if they have proven they don’t have records . . . [O]ur position, just briefly,
is that they have not met their burden entirely.” R.R. at 79a. The trial court ordered
the parties to brief their issues. Id. at 471a.
On March 3, 2020, the Brunermers filed a motion for RTKL sanctions
and attorneys’ fees against the Borough. R.R. at 474a-77a. The motion asserted that
documents produced by the Borough in association with the February 20, 2020,
hearing “confirmed the existence of” three additional documents concerning the 719
North Warren Avenue property that should have been produced pursuant to the
January 28, 2020, order, but had not yet been provided. Id. at 475a. The motion
averred that the recently disclosed documents also showed Borough employees
using personal non-government email addresses for Borough business, including as
to the property at issue. Id. at 476a-77a. The Brunermers asked the Court to order
production and an accounting concerning those emails, as the Brunermers believed
this “new evidence” undermined the Borough’s assertion of its “good faith.” Id. at
476a-77a.
On March 12, 2020, the trial court issued a third consent order directing
the Borough to provide either the additional records or affidavits within 14 days.
R.R. at 513a-14a. No further docket activity occurred in the trial court until the
parties filed their briefs in June 2020. Id. at 2a, 515a-30a & 641a-81a. The Borough
asserted that it had produced everything it had in good faith, given its small staff and
difficulties with locating documents. Id. at 515a-30a. The Brunermers maintained
that the Borough had still not produced everything and that bad faith sanctions were

6
warranted. Id. at 641a-81a. On September 18, 2020, the Brunermers filed a second
motion for sanctions. R.R. at 857a-81a. In addition to their March 2020 motion for
sanctions under the RTKL, the Brunermers sought civil sanctions, including
contempt, against the Borough for failure to comply with the orders the trial court
issued in January and March 2020. Id.
On October 9, 2020, the trial court issued a decision and order on the
Brunermers’ motions for sanctions. R.R. at 1003a-10a. The trial court held that the
Borough’s actions did not constitute wanton or willful disregard or bad faith under
the RTKL; therefore, attorneys’ fees, civil contempt, and “bad faith” RTKL
sanctions were not warranted. Id. at 1008a-09a. The trial court declined to rule on
the Brunermers’ motion for lesser RTKL “noncompliance” sanctions, stating that to
do so would be premature at that time. Id. at 1009a-10a. The Borough filed an
answer in November 2020 stating that it had searched for all records to the best of
its ability and had produced everything it possessed. Id. at 1013a-29a.
On August 19, 2021, the trial court held argument on the Brunermers’
September 2020 motion for civil contempt or other sanctions. R.R. at 84a-102a.
Counsel for the Borough confirmed that no further documents or affidavits had been
provided since its November 2020 response to the Brunermers’ motion. Id. at 88a.
Counsel for the Brunermers asserted that the Borough had still not provided
everything ordered by the trial court; counsel then updated his testimony concerning
the Brunermers’ request for attorneys’ fees, which by that time amounted to roughly
$54,000. Id. at 89a-100a. Counsel for the Borough responded that the Borough had
done its best with limited staff and resources to respond to the Brunermers’ multiple
requests and litigation efforts over the past two years and that although “mistakes

7
were made” along the way, sanctions were not warranted under the RTKL or in the
civil context. Id. at 100a-02a.
Later that same day, the trial court issued an order stating that as to the
Brunermers’ September 2020 petition for civil contempt or other sanctions, the
Borough had until September 10, 2021, to provide any additional documents or
affidavits, with briefing on all outstanding issues to follow. R.R. at 1032a. On
September 10, 2021, the Borough filed an affidavit by Shupe, who attested that she
conducted a good faith search of all potentially relevant and available sources, that
the Borough had produced everything it had, and that it possessed nothing else
pertaining to the Brunermers’ requests. Id. at 1033a-39a. Attached to the September
10, 2021, affidavit were three documents that had not been part of the Brunermers’
original requests, but were referred to in a February 25, 2019, email from Troup, the
zoning officer, to Kanish, and were part of the trial court’s March 12, 2020, consent
order. Id. at 1039a, 1055a-59a; see also id. at 474a-77a, 490a & 513a-14a. The
parties filed their final briefs to the trial court later in 2021, largely restating the
positions asserted at the August 2021 hearing. Id. at 1061a-1128a.
On June 29, 2022, the trial court issued its final order. R.R. at 1152a-
53a. The court first stated that its January 2020 consent orders disposed of the
Brunermers’ mandamus petitions seeking enforcement of the various OOR
determinations. Id. at 1152a. The court next confirmed its October 2020 decision
and order denying the Brunermers’ motion for RTKL sanctions. Id. at 1152a-53a.
The court next concluded that the Borough had not acted in willful violation or
contempt of the court’s January 2020 orders and that neither civil contempt nor
penalties under the RTKL were warranted. Id. at 1153a. Last, the court held that

8
the Borough’s RTKL responses “are sufficient and that no further documents or
affidavits need be submitted by the Borough to the [Brunermers].” Id.
The Brunermers appealed the trial court’s June 2022 order to this
Court.3 R.R. at 1156a. In its subsequent Pa.R.A.P. Rule 1925(a) opinion, the trial
court incorporated by reference its October 9, 2020, decision and order and stated
that “[o]n that basis, the Court recommends affirmance in all respects.” Id. at 1211a-
12a.

II. Issues
The Brunermers raise three issues on appeal to this Court. First, they
assert that the trial court erred in concluding that the Borough had produced all
available records in response to the RTKL requests.4 Brunermers’ Br. at 4. Next,
they assert that the trial court erred in declining to award penalties and attorneys’
fees pursuant to the RTKL. Id. Last, they assert that the trial court erred in declining
to find the Borough in civil contempt for failing to comply with the trial court’s prior
orders requiring the Borough to produce records in response to the Brunermers’
RTKL requests.

3
We previously addressed an appeal by the Brunermers of different RTKL requests to the
Borough. Brunermer v. Apollo Borough (Pa. Cmwlth., No. 661 C.D. 2021, filed July 28, 2022),
2022 WL 2976345 (unreported) (Brunermer I) (affirming the trial court’s award of RTKL relief
to the Brunermers by ordering the Township to conduct a good faith search for additional
responsive records but denying the Brunermers’ request for attorneys’ fees and penalties).
4
“[A]n action in mandamus before a court of common pleas is available once a party’s
right to the record has been established through a final [OOR] determination,” as the Brunermers
did here. See Capinski v. Upper Pottsgrove Twp., 164 A.3d 601, 609 (Pa. Cmwlth. 2017). In this
context, our review is appellate in nature and we consider “whether the trial court’s findings of
fact are supported by substantial evidence or whether the trial court committed an error of law or
abused its discretion. Our standard of review on findings of fact is deferential but de novo on
issues of law.” Id. at 604 n.4.

9
 III. Discussion
A. Sufficiency of Borough’s Response to RTKL Requests
The RTKL is “designed to promote access to official government
information in order to prohibit secrets, scrutinize the actions of public officials, and
make public officials accountable for their actions.” Hodges v. Pa. Dep’t of Health,
29 A.3d 1190, 1192 (Pa. Cmwlth. 2011). As such, public records must be disclosed
by a governmental entity if they are requested pursuant to the RTKL. Id. However,
the entity is not required to create a record if the requested record does not exist. Id.
(citing Section 705 of the RTKL, 65 P.S. § 67.705.9). The burden of proving a
record does not exist, or is exempt from disclosure, is placed on the agency
responding to the request. Id. (citing Section 708 of the RTKL, 65 P.S. § 67.708).
This Court has stated that a governmental entity may satisfy its burden of proving
that it does not possess a requested record with either an unsworn attestation by the
person who searched for the record or a sworn affidavit of nonexistence of the
record. Id.
In Hodges, the requester, an inmate, sought certain records from the
Department of Health (DOH) regarding prison healthcare. 29 A.3d at 1191. In an
affidavit, the DOH’s records officer attested that she conducted a good faith search
and determined that the DOH did not possess the requested records; she
acknowledged, however, that the records might exist under another classification or
title. Id. at 1193. This Court concluded that the DOH’s affidavit was sufficient and
that it “was not required to sift through all of its records in order to determine if
something under a different spelling or classification might possibly relate to
Hodges’ request.” Id. Similarly, in Moore v. Office of Open Records, 992 A.2d 907

10
(Pa. Cmwlth. 2010), the Department of Corrections (DOC) provided some records
responsive to an inmate’s request and attested in both sworn and unsworn affidavits
that it was not in possession of additional requested records or that those records did
not exist. Id. at 908. This Court concluded that the DOC’s response was sufficient
to meet its burden. Id. at 909.
Here, the trial court concluded in its June 2022 order that the Borough’s
responses to the Brunermers’ requests were sufficient and that no further documents
or affidavits were warranted. R.R. at 1153a. The Brunermers argue that the trial
court erred in this regard, asserting their belief that requested documents remain
outstanding and challenging the Borough’s attestations that all available records
were produced. Brunermers’ Br. at 36-52. Specifically, the Brunermers question
the Borough’s responses and/or attestations with regard to the following: records
concerning 723 North Warren Avenue, list of current vacancies, vacancy inspection
checklists, change of use documentation for another property in the Borough that
changed from a tattoo parlor to light manufacturing, list of individuals who conduct
vacancy inspections in the Borough, any report drafted by Kanish in association with
his inspection in April 2017, and any documents concerning the Borough’s decision
to “opt in” and administer its own Uniform Construction Code5 (UCC) matters via
its contract with Kanish’s company as opposed to the Pennsylvania Department of
Labor and Industry.6 Id. The Borough responds that the trial court correctly
determined that its responses and affidavits were sufficient. Borough’s Br. at 7.

5
34 Pa. Code §§ 401.1-405.42.
6
Act 45 of 1999 and UCC regulations allow each municipality to decide whether it will
“opt in” and administer and enforce the UCC itself (through an employee or contractor certified
as a building code official) or “opt out” and defer to the Department of Labor and Industry in UCC
matters. See https://www.dli.pa.gov/ucc/Pages/Municipal-Election-Information-and-Forms.aspx
(last visited October 18, 2023).
11
 Substantial record evidence supports the trial court’s determination that
the Borough provided all documents in its possession or produced sufficient
affidavits concerning the rest of the documents sought by the Brunermers.
Regarding 723 North Warren Avenue, the Brunermers requested records relating to
its vacancy status. R.R. at 685a. In August 2019, the Borough produced a vacancy
list for 2019 that included 723 North Warren Avenue, and in January 2020, the
Borough produced additional documents concerning that property including a
January 2018 letter from the owner confirming that the house on it was habitable but
vacant, being readied for sale, and would not be rented; a February 2018 letter from
the Borough advising that the property would have to be inspected and registered as
vacant; a completed application by the owner for a waiver of vacancy fees; and 2018
and 2019 vacancy inspection reports completed by Troup. Id. at 1222a & 1485a-
99a. The trial court’s declaration in its June 2022 order that the Borough had
provided all records requested by the Brunermers would have encompassed the
Borough’s responses concerning 723 North Warren Avenue, and we conclude that
determination was supported by the record.
The Brunermers also challenge the Borough’s response to their request
for the Borough’s current list of vacant properties. R.R. at 689a. In February 2020,
the Borough provided a list of vacant properties as of June 26, 2019. Id. at 1216a &
122a-23a. The Brunermers now argue that lists with additional information may
exist and should have been provided to them, based on Troup’s testimony.
Brunermers’ Br. at 42-43. However, in her deposition, Troup stated only that if an
additional vacancy list with enhanced information existed, she was not aware of it.
R.R. at 1425a. Moreover, the RTKL request form completed by the Brunermers
sought only “[a] current copy of a list of properties currently on the vacant property

12
list. We are not asking for names or telephone numbers.” Id. at 137a. The
Brunermers’ request also did not ask for any additional information regarding vacant
properties. The trial court’s declaration in its June 2022 order that the Borough had
provided all records requested by the Brunermers would have encompassed the
Borough’s responses concerning its list of properties that were vacant as of the date
of the Brunermers’ request, and we conclude that determination was supported by
the record.
The Brunermers also challenge the Borough’s response to their request
for “vacancy inspection checklists for 2016-19,” asserting that the responses
suggested that different versions existed and it was unclear which checklists were
used for which inspections. Brunermers’ Br. at 15-16 & 43. However, a table
produced by the Brunermers’ counsel in advance of the February 20, 2020, hearing
stated that with regard to that request, the Brunermers provided checklists for 2016-
19 and “nothing further is needed.” R.R. at 691a. Although the Brunermers argue
that the Borough’s response was deficient because it did not delineate which forms
might have been used in which years, their request was limited to the forms
themselves, and they do not claim that the Borough never provided those documents
to them. R.R. at 138a & 691a. The trial court’s declaration in its June 2022 order
that the Borough had provided all records requested by the Brunermers would have
encompassed the Borough’s responses concerning vacancy checklists as of the date
of the Brunermers’ request, and we conclude that determination was supported by
the record.
The Brunermers next challenge the Borough’s response to their request
for change of use records concerning another local property where a former tattoo
parlor became a site for light manufacturing by Kerr Manufacturing; the Brunermers

13
assert that the Borough has not produced these records nor explained its failure to
do so. Brunermers’ Br. at 43-44. However, the Borough asserted in its August 2019
response that in 2015, when it believed that change of use was processed, the
Borough was an “opt out” community (addressed in note 5 above) and that any
change of use documentation would have been generated by the Department of
Labor and Industry and therefore was not in the Borough’s possession. R.R. at
1216a. The Borough again stated in Shupe’s February 2020 and September 2021
affidavits that the Borough possessed no responsive documentation to this request.
Id. at 1036a & 1507a. As set forth above, a governmental entity’s attestation that it
does not possess a requested record may satisfy its burden of proof in the RTKL
context. See Hodges, 29 A.3d at 1192. The trial court’s declaration in its June 2022
order that the Borough had established its non-possession of certain documents
requested by the Brunermers would have encompassed the Borough’s explanation
of why it possessed no change of use records for the Kerr Manufacturing transaction,
and we conclude that determination was supported by the record.
The Brunermers next assert that the Borough failed to provide a list of
officials it uses to perform vacancy inspections, stating that the Borough provided
only a “letter, which simply stated who was authorized to perform inspections.”
Brunermers’ Br. at 45-46. That letter, the Borough’s August 2019 response, stated:
“Brenda Troup, Zoning Officer, performs inspections for the [Borough], as per
appointment. The Borough has and will continue to reserve the right to contract for
inspection services as needed.” R.R. at 1215a. In her deposition, Troup stated that
she is the primary vacancy inspector and that in the rare instance where she cannot
do an inspection, the Borough and property owner would agree to use someone else,
which could be a police officer or someone from Kanish’s company. Id. at 1428a.

14
She added that the Borough does not keep lists or records of these individuals
because “[i]t’s not been a necessity to do so.” Id. As set forth above, a governmental
entity’s attestation that it does not possess a requested record may satisfy its burden
of proof in the RTKL context. See Hodges, 29 A.3d at 1192. The trial court’s
declaration in its June 2022 order that the Borough had established its non-
possession of certain documents requested by the Brunermers would have
encompassed Troup’s explanation of why the Borough did not keep a list of vacancy
inspectors, and we conclude that determination was supported by the record.
The Brunermers next assert that the Borough failed to provide the Act
1337 municipal inspection report (Act 133 report) produced by Kanish in connection
with his April 2017 inspection and issuance of a temporary certificate of use and
occupancy for the Brunermers’ property at 719 North Warren Avenue. Brunermers’
Br. at 51. The Brunermers argue that Kanish’s testimony that he did not produce a
report or documentation other than the temporary certificate itself was insufficient
to establish that no such report existed and that the Borough must provide a “verified
affidavit” in this regard. Id. (citing Kanish’s testimony at page 46a of the

7
Section 2.1 of the Municipal Code and Ordinance Compliance Act, Act of December 20,
2000, P.L. 724, as amended, added by the Act of November 3, 2016 P.L. 1047, 68 P.S. §§ 1082.1,
states that a municipal inspection of a property for purposes of a use and occupancy certificate
“shall issue the certificate in the following manner”:

(1) If the municipal inspection reveals no violations.

(2) If the municipal inspection reveals at least one violation, but no
substantial violations, the municipality shall issue a temporary use
and occupancy certificate.

(3) If the municipal inspection reveals at least one substantial
violation, the municipality shall specifically note those items on the
inspection report and shall issue a temporary access certificate.

68 P.S. § 1082.1
15
Reproduced Record). However, the Borough did provide the requisite affidavit; in
Shupe’s sworn affidavits of February 2020 and September 2021, she attested that
the Borough possessed no Act 133 reports with regard to the property. R.R. at 1034a
& 1507a. As set forth above, a governmental entity’s attestation that it does not
possess a requested record may satisfy its burden of proof in the RTKL context. See
Hodges, 29 A.3d at 1192. The trial court’s declaration in its June 2022 order that
the Borough had established its non-possession of certain documents requested by
the Brunermers would have encompassed the Borough’s assertion, consistent with
Kanish’s testimony, that no Act 133 report was produced in this matter, and we
conclude that determination was supported by the record.
Last, the Brunermers challenge the Borough’s response to their request
concerning the Borough’s decision to “opt in” and administer the UCC itself rather
than “opting out” and deferring to the Department of Labor and Industry concerning
UCC use and occupancy determinations. Brunermers’ Br. at 52. The Brunermers
argue that the Borough provided some records in November 2019 but subsequently
asserted in September 2021 that it had no records concerning the UCC “opt in”; the
Brunermers asked the Borough to provide either all records or a verified explanation
for why it claimed to have no records. Id. The Borough’s November 2019 response
stated that it was “not in possession of any meeting minutes or letters to the
Pennsylvania Department of Labor and Industry” concerning its decision to “opt in,”
but the Borough did provide a copy of its 2014 form electing to opt in and the
corresponding ordinances it enacted to administer the UCC itself. R.R. at 196a-
202a. Shupe’s September 2021 affidavit reiterated that the Borough possessed no
“meeting minutes or letters” concerning its UCC opt-in decision. Id. at 1038a-39a.
As set forth above, a governmental entity’s attestation that it does not possess a

16
requested record may satisfy its burden of proof in the RTKL context. See Hodges,
29 A.3d at 1192. The trial court’s declaration in its June 2022 order that the Borough
had established its non-possession of certain documents requested by the
Brunermers would have encompassed the Borough’s consistent assertion that it
possessed no “meeting minutes or letters” concerning its 2014 decision to opt in, and
we conclude that determination was supported by the record.
As the foregoing discussion shows, the trial court’s June 2022 order
concluding that the Borough’s responses to the Brunermers’ requests were
sufficient, both in terms of what the Borough provided and what it attested it did not
possess, was supported by the record and did not amount to legal error or an abuse
of discretion. See infra note 4 (citing Capinski v. Upper Pottsgrove Twp., 164 A.3d
601, 604 n.4 (Pa. Cmwlth. 2017)). The Brunermers’ assertions in this regard are
therefore meritless.

B. RTKL Attorneys’ Fees
The purpose of attorneys’ fees under the RTKL is to “remedy the
damage to the requester where an agency has denied access to records in bad faith[.]”
Off. of the Dist. Att’y of Phila. v. Bagwell, 155 A.3d 1119, 1140 (Pa. Cmwlth. 2017)
(Bagwell). A trial court may order payment of attorneys’ fees to a requester pursuant
to Section 1304(a) of the RTKL, which provides:

(a) Reversal of agency determination.—If a court reverses
the final determination of the appeals officer[8] or grants
access to a record after a request for access was deemed
denied, the court may award reasonable attorney[s’] fees

8
In Uniontown Newspapers, Inc. v. Pennsylvania Department of Corrections, 243 A.3d
19, 33-34 (Pa. 2020), our Supreme Court held that the “appeals officer” in this section is the records
officer of the agency subject to the RTKL request.
17
 and costs of litigation or an appropriate portion thereof to
a requester if the court finds either of the following:

(1) the agency receiving the original request willfully or
with wanton disregard deprived the requester of access to
a public record subject to access or otherwise acted in bad
faith under the provisions of this act; or

(2) the exemptions, exclusions or defenses asserted by the
agency in its final determination were not based on a
reasonable interpretation of law.
65 P.S. § 67.1304(a) (emphasis added). In the context of the RTKL, intent to
wrongfully withhold disclosure is not required for a finding of bad faith and an
agency’s failure to provide an adequate response to a request may be the basis for
such a finding. Uniontown Newspapers v. Pa. Dep’t of Corr., 185 A.3d 1161, 1170
(Pa. Cmwlth. 2018). However, a trial court’s conclusion regarding a party’s bad
faith for purposes of attorneys’ fees under the RTKL will be upheld unless the
opponent establishes that the trial court’s determination is legally erroneous or
unsupported by substantial evidence of record. Bagwell, 155 A.3d at 1123 n.3.
The trial court here concluded in its October 2020 decision that the
Brunermers “failed to establish that the Borough acted with wanton or willful
disregard or bad faith under the RTKL. Accordingly, no attorneys’ fees will be
awarded to the Brunermers.” R.R. at 1008a. In its June 2022 order, the trial court
reaffirmed that determination and added that the Borough had not “thereafter
committed any bad faith as that term is defined in the [RTKL] or case law
interpreting its provisions.” Id. at 1152a-53a.
The Brunermers argue that the Borough’s repeated insufficient
responses to the RTKL requests warranted the imposition of attorneys’ fees.
Brunermers’ Br. at 18-30. The Borough replies that the trial court correctly found

18
that the Borough at no point acted in bad faith or willful or wanton disregard of the
Brunermers’ requests. Borough’s Br. at 5-12.
This Court previously considered an appeal by the Brunermers of the
trial court’s denial of attorneys’ fees with regard to different RTKL requests in
Brunermer v. Apollo Borough (Pa. Cmwlth., No. 661 C.D. 2021, filed July 28,
2022), 2022 WL 2976345 (unreported) (Brunermer I). We first summarized the
leading cases on bad faith attorneys’ fees in RTKL matters, which arose out of a
dispute between Uniontown Newspapers, Inc., and the DOC, which initially denied
the request on the basis that the records were part of an internal investigation and
therefore exempt from disclosure, then repeatedly contested disclosure and defied
specific disclosure orders. Id., slip op. at 8-10, 2022 WL 2976345, at **4-5. We
noted that in the Uniontown Newspapers matter, this Court ultimately found the
DOC acted in bad faith and awarded attorneys’ fees. Id., slip op. at 10, 2022 WL
2976345, at *5.
In the ensuing Brunermer I analysis, this Court concluded:

The circumstances here are distinguishable from the facts
in the Uniontown Newspapers cases, where the DOC
denied the initial request without conducting a search, then
repeatedly failed to locate and disclose documents after
orders by both the OOR and this Court to do so. Here, the
Borough did not deny the Brunermers’ request or claim
exemptions to disclosure. The Borough witnesses testified
that they did their best to comply with the initial request,
then voluntarily and independently searched for more
records when they learned better methods to do so or, in
the instance of [Borough Solicitor] Andreassi, when he
learned from the Brunermers’ complaint of additional
potential information subject to disclosure. Although a
lack of resources does not justify nondisclosure, the
Borough did not assert its lack of resources as an excuse,
and the trial court found as fact that in the context of the
Brunermers’ multiple requests and lawsuits, the Borough
19
 had essentially done its best. But see Pa. State Sys. of
Higher Educ. v. Ass’n of State Coll. & Univ. Faculties, 142
A.3d 1023, 1032 (Pa. Cmwlth. 2016) (stating that “just
because an agency claims it neither has the time nor
resources to conduct a document-by-document review
within the time-period required by the RTKL does not
make it so”). Unlike in the Uniontown Newspapers cases,
the record here does not indicate the Borough acted
willfully, with wanton disregard of its responsibilities, or
otherwise in bad faith. As the record supports the trial
court’s conclusion, the court did not err in declining to
impose attorneys’ fees on the Borough.
Id., slip op. at 12-13, 2022 WL 2976345, at *6.
Here, the record includes testimony by Borough officials Shupe and
Troup that they did their best to look for anything that pertained to the Brunermers’
requests and provided attestations explaining that to the best of their knowledge,
other records were either not in the Borough’s possession or did not exist. R.R. at
1403a-07a, 1413a-16a & 1422a-28a. The record also includes the Borough’s
various responses to the requests as discussed above in Section A, where we
concluded that the trial court’s determination that those responses were sufficient
was supported by the record and not in error. See id. at 196a-202a, 1034a-39a,
1214a-26a, 1233a, 1428a, 1485a-99a & 1507a.
As in Brunermer I, we again conclude that the trial court did not err in
declining to impose attorneys’ fees on the Borough in either its October 2020 or June
2022 order. Unlike the DOC in the Uniontown Newspapers matters, the Borough
did not deny or contest the requests, and although the trial court did not explain its
denial in detail, its conclusion that the Borough did not act in bad faith or
willful/wanton disregard was supported by substantial evidence of record and did

20
not amount to either legal error or an abuse of discretion.9 See infra note 4 (citing
Capinski, 164 A.3d at 604 n.4); see also Bagwell, 155 A.3d at 1123 n.3. The
Brunermers’ assertions in this regard are therefore meritless.

C. RTKL Civil Penalties
Section 1305 of the RTKL empowers a court to award penalties as
follows:
(a) Denial of access.--A court may impose a civil penalty
of not more than $1,500 if an agency denied access to a
public record in bad faith.

(b) Failure to comply with court order.--An agency or
public official who does not promptly comply with a court
order under this act is subject to a civil penalty of not more
than $500 per day until the public records are provided.
65 P.S. § 67.1305. In Brunermer I, we discussed Section 1305 as follows:

Whereas attorneys’ fees pursuant to Section 1304(a) seek
to remedy damage to a requester when an agency denies
disclosure in bad faith, civil penalties under Section 1305
“penalize conduct of a local agency and . . . provide a
deterrent in the form of a monetary penalty in order to
prevent acts taken in bad faith in the future.” Bagwell, 155
A.3d at 1141. “[B]ad faith is a matter of degree,
implicating the extent of noncompliance,” and the
reviewing court (either the trial court or this Court) has the

9
In Brunermer I, we stated:

We note that Section 1304(a) applies where a reviewing court
reverses the agency’s denial of disclosure or grants access after a
deemed denial, which occurs when an agency fails to timely respond
to a request. 65 P.S. § 67.1304(a). Assuming, without deciding, that
the initial requirement for applicability of Section 1304(a) was met,
the trial court’s finding that the Borough did not act in bad faith is
supported by substantial evidence of record.

Brunermer I, slip op. at 11, 2022 WL 2976345, at *5. That approach also applies in this matter.
21
exclusive authority to find facts and impose sanctions in
this regard.

In Bagwell, the Philadelphia District Attorney’s office
initially denied the RTKL request as a whole, claiming
numerous exemptions. The OOR ordered disclosure and
the trial court agreed, ultimately imposing a Section 1305
civil penalty of $500. We affirmed upon concluding that
the record was “replete with evidence” that the District
Attorney’s office wrongly denied access based on the
identity of the requester and the presumed intended use of
the records, failed to cite sufficient legal authority in
support of its reasons for denial, and did not make a good
faith search for the requested records. In the Uniontown
Newspapers cases, this Court found that the DOC’s
referral of the matter to its health bureau and reliance on
the bureau’s reasons for denying disclosure did not
constitute a good faith search. In imposing Section 1305
penalties on the DOC, we emphasized the agency’s
“noncompliance throughout the RTKL process” for more
than three years.

Where this Court has awarded or upheld penalties under
Section 1305(a), there generally has been an initial denial
by the agency (as required by the provision) followed by
ongoing nondisclosure or explanations not credited by the
reviewing court. By contrast, when an agency has shown
some diligence to respond to a request and nondisclosure
is due to a genuine and nonfrivolous belief that documents
have been provided, are unavailable, or are not subject to
disclosure, we have declined to impose or uphold
penalties.

As discussed above, in the context of the RTKL, intent to
wrongfully withhold disclosure is not required to sustain a
finding of bad faith, while an agency’s failure to provide
an adequate response to a request may, but need not, be
the basis for such a finding. However, the reviewing court
(in this case the trial court) is the finder of fact, and its
conclusion regarding a party’s bad faith will be upheld
unless the opponent establishes that it is legally erroneous
or unsupported by substantial evidence of record.

22
Brunermer I, slip op. at 14-16, 2022 WL 2976345, at **7-8 (citations omitted); see
also Bagwell, 155 A.3d at 1123 n.3. (stating that a trial court’s conclusion regarding
penalties under the RTKL will be upheld unless shown to be legally erroneous or
unsupported by substantial evidence of record).
Here, the trial court’s October 2020 order declined to impose “bad
faith” Section 1305(a) penalties on the Borough and deferred a ruling on the lesser
Section 1305(b) “failure to comply” penalties at that time as premature. R.R. at
1009a. In its June 2022 final order, the trial court did not provide any further
explanation, but reiterated its finding of no bad faith and generally denied the
Brunermers’ request to impose penalties after finding that the Borough’s responses
to all of the requests were “sufficient.” Id. at 1152a-53a.
The Brunermers argue that the trial court’s failure to impose penalties
under either part of Section 1305 amounted to reversible error in light of the
Borough’s failure to respond sufficiently and in a timely manner (the Brunermers
point out that the three documents appended to Shupe’s September 2021 affidavit
were produced 18 months after the trial court’s March 2020 consent order), which
the Brunermers characterize as both bad faith and noncompliance warranting
penalties totaling nearly $1.5 million. Brunermers’ Br. at 30-36. The Borough
replies that the trial court correctly found that the Borough did not act in bad faith or
willful or wanton disregard of the Brunermers’ requests, that its responses were
sufficient, and that therefore it is not subject to RTKL penalties for either bad faith
or noncompliance. Borough’s Br. at 5-12.
The record includes testimony by Borough officials Shupe and Troup
that they did their best to look for anything that pertained to the Brunermers’ requests
and provided attestations explaining that to the best of their knowledge, other records

23
were either not in the Borough’s possession or did not exist. R.R. at 1403a-07a,
1413a-16a & 1422a-28a. The record also includes the Borough’s various responses
to the requests as discussed above in Section A, where we concluded that the trial
court’s determination that those responses were sufficient was supported by the
record and not in error. See id. at 196a-202a, 1034a-39a, 1214a-26a, 1233a, 1428a,
1485a-99a & 1507a.
As in Brunermer I, we conclude here that the trial court did not err in
declining to impose Section 1305 penalties on the Borough in either its October 2020
or June 2022 orders. As discussed above in Section B, the trial court’s conclusion
that the Borough at no time acted in bad faith was supported by the record.
Accordingly, for the same reasons that the trial court did not err in declining to
impose attorneys’ fees, its refusal to impose Section 1305(a) “bad faith” penalties
was also supported by the record and not in error. With regard to the lesser Section
1305(b) “noncompliance” penalties, the trial court found the Borough’s responses
to the requests, taken as a whole, to be “sufficient” in its June 2022 final order. R.R.
at 1153a. As discussed above in Section A, that determination was supported by the
record and was not in error. Given that disposition, the record contains insufficient
evidence of “noncompliance” to support Section 1305(b) penalties, and the trial
court’s denial was therefore supported by the record and did not amount to legal
error or an abuse of discretion. See infra note 4 (citing Capinski, 164 A.3d at 604
n.4); see also Bagwell, 155 A.3d at 1123 n.3. The Brunermers’ assertions in this
regard are therefore meritless.

24
 D. Civil Contempt
Section 1304(c) of the RTKL states: “Nothing in this act shall prohibit
a court from imposing penalties and costs in accordance with applicable rules of
court.” 65 P.S. § 67.1304(c). This includes an adjudication of contempt against a
party. Bagwell, 155 A.3d at 1140 n.20. It is well established that “[c]ourts possess
an inherent power to enforce their orders by way of the power of contempt.” Joos v.
Bd. of Supervisors of Charlestown Twp., 237 A.3d 624, 634 (Pa. Cmwlth. 2020).
This power includes “broad discretion in fashioning and administering a remedy for
civil contempt.” Id. The purpose of civil contempt is “to compel performance of
lawful orders,” and the burden is generally on the complaining party to prove
noncompliance with the court order. Id. However, mere noncompliance with a court
order is insufficient to prove civil contempt. Id. The complainant must also prove:
“(1) that the contemnor had notice of the specific order or decree which he is alleged
to have disobeyed; (2) that the act constituting the contemnor’s violation was
volitional; and (3) that the contemnor acted with wrongful intent.” Id. An appellate
court will reverse a trial court’s order denying a contempt petition “only upon a
showing that the trial court misapplied the law or exercised its discretion in a manner
lacking reason.” Id.
Here, the trial court denied the Brunermers’ motion for civil contempt
against the Borough in its October 9, 2020, decision and order, stating that with
regard to Section 1304(c), which allows courts to find sanctions outside the RTKL,
like civil contempt, the Brunermers “failed to establish grounds under any other
Pennsylvania law for the payment of any other penalties or fees by the Borough.”
R.R. at 1008a. The trial court subsequently referenced the October 2020 decision in
its final order of June 29, 2022, and Rule 1925(a) decision. R.R. at 1008a, 1152a-

25
53a & 1211a-12a. The trial court did not specifically explain its contempt decision,
but stated in its June 2022 order that it did not find the Borough “to be in willful
violation or contempt of any of the several orders entered in January 2020.” Id. at
1153a.
The Brunermers argue that the Borough did not comply with the trial
court’s March 2020 consent order directing it to provide documents distinct from
those addressed in the January 2020 orders (specifically, the three documents that
were not in the Brunermers’ original requests but were required to be produced by
the trial court’s March 2020 consent order), because it did not produce those
documents until its final affidavit and response in September 2021. Brunermers’ Br.
at 11-17. The Borough responds that the trial court correctly declined to impose
civil contempt penalties in this matter based on its conclusion that the Borough had
not acted in either bad faith or willful disregard of the law. Borough’s Br. at 5-12.
Unlike the RTKL’s penalty provisions, a finding of civil contempt
requires the proponent to show “wrongful intent.” Compare Joos, 237 A.3d at 634,
with Uniontown Newspapers, 185 A.3d at 1170. Here, as noted, the record includes
testimony by Borough officials Shupe and Troup that they did their best to look for
anything that pertained to the Brunermers’ requests and provided attestations
explaining that to the best of their knowledge, other records were either not in the
Borough’s possession or did not exist. R.R. at 1403a-07a, 1413a-16a & 1422a-28a.
The record also includes the Borough’s various responses to the requests as
discussed above. See id. at 196a-202a, 1034a-39a, 1214a-26a, 1233a, 1428a, 1485a-
99a & 1507a. Although the trial court did not explain the specific basis for its denial
of the Brunermers’ motion for civil contempt in this matter, it generally found no
bad faith on the Borough’s part; that determination was supported by the totality of

26
the Borough’s responses to the request as reflected in the record. We therefore
conclude that the trial court did not err or abuse its discretion in denying the petition.
See Joos, 237 A.3d at 634; see also infra note 4 (citing Capinski, 164 A.3d at 604
n.4.). The Brunermers’ assertions in this regard are therefore meritless.

IV. Conclusion
In light of the foregoing, the trial court’s June 29, 2022, order is
affirmed.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

27
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Janet and Scott Brunermer, :
Appellants :
:
v. :
: Nos. 746, 747, 748 & 749 C.D. 2022
Apollo Borough :

ORDER

AND NOW, this 19th day of October, 2023, the June 29, 2022, order
of the Court of Common Pleas of Armstrong County (trial court) is AFFIRMED.

__________________________________
CHRISTINE FIZZANO CANNON, Judge