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James M. Smith v. Township of Richmond

July 31, 2012; vacated and opinion filed October 5, 2012

JAMES M. SMITH, APPELLANT
v.
TOWNSHIP OF RICHMOND, BERKS COUNTY, PENNSYLVANIA, GARY J. ANGSTADT, RONALD L. KURTZ, AND DONALD H. BRUMBACH



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: May 15, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE LEAVITT

James M. Smith, a resident who also practices law in the Township of Richmond, appeals an order of the Court of Common Pleas of Berks County (trial court), which denied his request for a declaratory judgment that the Board of Supervisors of Richmond Township had violated the Sunshine Act, 65 Pa. C.S. §§701-716.*fn1 The trial court concluded that the Supervisors' four closed-door meetings with the different parties interested in an ongoing litigation matter did not have to be conducted in public because they were held to collect general information about the parties' various concerns and not to consider settlement, which had not yet been proposed by any of the parties. Further, Smith presented no evidence that agency business was deliberated or official actions taken at these meetings. Discerning no error, we affirm.

The facts are undisputed. The Township has been engaged in litigation with the Lehigh Cement Company and the East Penn Valley Residents Group (Citizens Group) over the expansion of Lehigh Cement's limestone quarry in Richmond Township. In 2010, Ronald I. Kurtz joined Gary J. Angstadt and Donald H. Brumbach as a new member of the Richmond Township Board of Supervisors. In that same time frame, the Township hired a new solicitor, Christopher Hartman, Esquire. To educate Kurtz and the Solicitor on the litigation, the Supervisors decided to conduct a series of meetings with the interested parties. To that end, the Solicitor arranged four meetings with each of the respective parties. At the Supervisors' March 8, 2010, meeting, the Solicitor stated that the Supervisors would be conducting these meetings, which he called "executive sessions."*fn2

As announced, the four meetings took place in early March, and they were attended by all three Supervisors and the Solicitor. On March 9, 2010, the Supervisors held two separate meetings with representatives from Maxatawny and Maidencreek Townships, which border Richmond Township. On March 11, 2010, the Supervisors met with representatives of the Citizens Group. Finally, on March 12, 2010, the Supervisors met with representatives of Lehigh Cement.

At the Board's next public meeting, on April 5, 2010, the Solicitor read an "open meeting statement" into the record, explaining that the previously announced "executive sessions" on the Lehigh Cement litigation had taken place as scheduled. The Solicitor explained that the Supervisors did not deliberate on, conduct, or make any decisions on agency business at any of the four meetings.

The Solicitor reiterated that "the sole purpose of each of the executive sessions was for the Board of Supervisors to ask questions of the invited persons and to gather information regarding the impacts of a quarry operation in Richmond Township." Reproduced Record at 297a (R.R. ___).

At its next meeting on April 12, 2010, the Supervisors appointed Kurtz as their representative to join the Solicitor in meetings with Lehigh Cement to discuss a possible settlement. Thereafter, Kurtz and the Solicitor met with Lehigh Cement representatives. Smith does not assert that these settlement discussions violated the Sunshine Act.

On May 10, 2010, Lehigh Cement delivered a proposed settlement agreement to the Township's Solicitor, approximately 45 minutes before the Supervisors' regularly scheduled meeting. The proposed agreement was entirely the work product of Lehigh Cement and its counsel. Accordingly, the proposed settlement agreement had not been listed on the Supervisors' agenda for the meeting that evening. The Supervisors met in an executive session with the Solicitor to discuss the Lehigh Cement settlement proposal. Thereafter, the Solicitor read the entire settlement agreement proposal into the record. A spirited public comment and debate followed. In the early morning hours of May 11, 2010, at the conclusion of the public comment and debate, Kurtz moved to accept the settlement agreement, and his motion was seconded by Brumbach. The third supervisor, Angstadt, voted against the motion and the settlement. The motion carried.

On March 22, 2010, Smith filed a declaratory judgment action to challenge the validity of the Township's four meetings on grounds that they violated the Sunshine Act. Specifically, Smith's complaint alleged, in relevant part, as follows:

14. At each of the aforesaid closed meetings (collectively, the "Meetings"), a quorum of the Board [of Supervisors] discussed and deliberated on business related to Richmond Township.

15. The aforesaid Meetings were closed to the public in violation of Section 704 of the Sunshine Act, 65 Pa.C.S.A. § 701, et seq. and without falling under any of the statutory exceptions set forth in the Act.

16. The Board [of Supervisors'] conduct in meeting with representatives of neighboring municipalities, a property owner, and select members of a citizens' group, and restricting public access to these meetings constitutes a violation of the Sunshine Act, 65 Pa.C.S.A. § 701, et seq. R.R. 5a-7a. The Supervisors denied Smith's allegations in their answer, stating that the meetings were held to gather information; did not involve any deliberations; and did not result in any official action being taken.

The parties did discovery. With respect to the two separate meetings with Maxatawny and Maidencreek Townships, discovery established that the Solicitor asked representatives of these townships about the dust and traffic generated by Lehigh Cement's quarry operations as well as its hours of operation. The goal was to learn how Lehigh Cement's operations impacted the neighboring townships and whether there were ways to mitigate any adverse impacts. All three Supervisors testified that the purpose of the meetings with Maxatawny and Maidencreek was informational.

Specifically, Angstadt, who voted against the settlement, testified in his deposition that meetings with the neighboring townships were useful in helping them form their respective positions because of what was learned about the quarry operations. Brumbach confirmed that the purpose of the meeting was to understand how the quarry operations affected Maxatawny's residents so that the Supervisors could "better frame out an agreement" with Lehigh Cement, should that become possible. R.R. 593a. Kurtz also confirmed that the purpose of the meetings was to gather information and to keep representatives of Maxatawny Township "in the loop" and to give Maidencreek Township the opportunity to "voice concerns if they had any." R.R. 524a, 537a.

Depositions of the Supervisors established that their meeting with the Citizens Group was focused on the group's practical recommendations, in the event the quarry expanded its operations. Kurtz described the meeting with the Citizens Group as an opportunity to learn. Likewise, Brumbach testified that the purpose of the meeting was "just [to] hear what people had to say." R.R. 106a.

John Keiser, a member and "spokesman" of the Citizens Group, testified that the purpose of the meeting was to communicate and explain the environmental concerns of the group. Those concerns included, inter alia, water quality, blasting, dust, and noise issues, as well as concerns regarding toxins being released into the environment and the impact a quarry expansion would have on a nearby creek. Keiser confirmed that he understood the meeting to be a fact-finding mission and ...


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