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August 8, 1997


Appealed From No. 95-8458. Common Pleas Court of the County of Delaware. Judge KEELER.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Judge Pellegrini.

The opinion of the court was delivered by: Pellegrini


FILED: August 8, 1997

Davoud Baravordeh appeals from the December 2, 1996 order of the Court of Common Pleas of Delaware County (trial court) which granted the preliminary objections of the Borough Council of Prospect Park, et al., *fn1 (Council) and dismissed Baravordeh's complaint in mandamus.

The facts underlying this matter are as follows. By letter dated February 1, 1995, Baravordeh requested that the Borough of Prospect Park (Borough) provide him with copies of certain documents, including the Prospect Park Police Contract. To have a uniform procedure by which members of the public could request to examine and review public records, the Borough, through Council, had enacted Resolution No. 1656, which provides, in relevant part, that the following procedures "are established in order to provide the public with access to information":

1. Any member of the public may request the right to review and inspect specific public documents pursuant to the Pennsylvania Right-to-Know Act in writing on a form available at the Borough Hall.

2. The Borough shall make available for inspection and review the specifically requested documents within five (5) working days of the request.

3. The Borough will charge $.25 per page for copies of specific documents requested.

4. If the documents requested are not reviewable under the Right-to-Know Act, the Borough shall notify the public within five (5) working days.

In accordance with this Resolution, the Borough informed Baravordeh that his request for public documents must be made on an official Borough form. On February 3, 1995, Baravordeh made that request on the official form, and on the same day, was provided with and charged for 12 pages of the Prospect Park Police Contract, at $.25 per page, for a total charge of $3.00. On April 12, 1995, Baravordeh submitted a request on the official form for copies of the Prospect Park Police Contract and an application for the building permit for 917 Lincoln Avenue. Copies of that information, for which he was again charged $.25 per page, were provided by the following day. *fn2

Claiming that the documents which he received from the Borough were not the "real" Borough police contracts but fabricated documents, Baravordeh filed an amended complaint in mandamus against Council and each of its members in their individual and representative capacities. *fn3 He specifically contended that Resolution No. 1656, as enacted by Council, violated what is commonly known as the Right-to-Know Act (Act) *fn4 because it did not allow for access to Borough records by examination and inspection, but only permitted access to those records by requests for copies and for a charge. Moreover, he contended that the Resolution violated the Right-to-Know Act because inspection and review of the records was not immediate, but was subject to a mandatory five-day delay for access to public records. Baravordeh attached Resolution No. 1656, along with other exhibits, to his amended complaint.

Alleging that the sole remedy for the Borough's and Council's violations was for the trial court to compel Council to comply with the Act, Baravordeh's amended complaint in mandamus requested the trial court to order Council to do the following:

to produce the Police Contracts requested, to present all public records for examination and inspection immediately upon request, to cease and desist in requiring requests for public records, to cease and desist in requiring access to public records solely through copies, and to cease and desist in requiring any delay in fulfilling requests for examination and inspection of public records. *fn5

Council (on its own behalf, and on behalf of its named members, both individually and in their representative capacity), filed preliminary objections to Baravordeh's amended complaint, alleging that he failed to set forth a cause of action and that no basis existed for an action in mandamus. Because Resolution No. 1656, attached to Baravordeh's complaint, specifically provides that any member of the public may request the right to review and inspect public documents, that the Borough shall make those requested documents available within five days of such request, and that, only if copies are requested, they shall be at a cost of $.25 per page, Council contended in its preliminary objections that Baravordeh's complaint was contradicted by the Resolution itself. Moreover, Council alleged that Baravordeh's appeal from any denial of a right granted by the Act is set forth by Section 4 of the Act, 65 P.S. § 66.4, as a statutory appeal to this Court. In addition, Council requested counsel fees pursuant to 42 Pa. C.S. § 2503(7) and (9), alleging that Baravordeh's action in merely refiling his initial, meritless complaint was arbitrary, vexatious and intended solely to harass Council.

The trial court granted the preliminary objections and dismissed Baravordeh's amended complaint because it failed to set forth a cause of action cognizable in mandamus. The trial court also denied Council's request for counsel fees. This appeal followed. *fn6

Baravordeh contends that the trial court improperly granted Council's preliminary objections based on a "speaking" demurrer because the trial court did not accept as "true" that he could only have access to the public documents for a charge. While it is true that in considering a demurrer to preliminary objections, all well-pleaded allegations must be accepted as true, Potter v. Springfield Township, (supra) , a court is not bound to accept as true any averments in a complaint which are in conflict with exhibits attached to it. Jenkins v. County of Schuylkill, 441 Pa. Super. 642, 658 A.2d 380 (1995), petition for allowance of appeal denied, Pa. , 666 A.2d 1056 (1995); Smith v. Exxon Corporation, 436 Pa. Super. 221, 647 A.2d 577 (1994), petition for allowance of appeal denied, Pa. , 672 A.2d 309 (1996). Even though Baravordeh's amended complaint alleges that Council, by the adoption of Resolution No. 1656, violated the Right-to-Know Act by only permitting access to its public records by copies made at a charge, *fn7 the Resolution, on its face, states otherwise. It specifically provides in part that "any member of the public may request the right to review and inspect specific public documents", and that when "copies of specific documents" are requested, they shall be provided at a cost of $.25 per page. (See (1) and (3) of Resolution No. 1656).

He also alleges that the Resolution violates the Right-to-Know Act because the requests for public documents need not be fulfilled immediately and because it provides that charges attach to copies made. Ignoring whether mandamus is even available, which we doubt, to challenge an ordinance or resolution implemented pursuant to the Right-to-Know Act, the Right-to-Know Law specifically allows agencies such as the Borough a reasonable time to respond to requests for public documents *fn8 and provides for copies to be made at a reasonable charge. *fn9 Because neither the time limits nor the applicable charges are unreasonable, Resolution No. 1656 in no way violates the Right-to-Know Act.

Finally, Baravordeh contends that the trial court should have given him the opportunity to amend his amended complaint to conform to the procedural rules. Not only has the trial court already given Baravordeh one chance to amend his complaint, after which he submitted a complaint with most of the same allegations and exactly the same requested order, a court is not required to allow an amendment of a pleading if the party will be unable to state a claim on which relief could be granted. Pa. R.C.P. No. 1033; Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996). Because, as we have already stated, Resolution No. 1656 does not violate or conflict with the provisions of the Right-to-Know Act, even if Baravordeh would have had a second opportunity to amend his complaint, that complaint still would not set forth a cognizable cause of action under the Right-to-Know Act so that the trial court committed no error in failing to allow him further leave to amend.

Accordingly, the order of the trial court is affirmed.



AND NOW, this 8th day of August, 1997, the order of the Court of Common Pleas of Delaware County dated December 2, 1996, is affirmed.


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