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James M. Smith v. Township of Richmond

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

ORDER

AND NOW, this 5th day of October, 2012, having considered appellant's application for reconsideration, the application is granted in part and denied in part.

Appellant, James M. Smith's application for reconsideration is GRANTED for the limited purpose of amending the Court's opinion and order, filed July 31, 2012, to clarify factual statements made therein and to correct an erroneous citation. To the extent that appellant's application for reconsideration requests further relief, it is DENIED. The opinion and order filed July 31, 2012, are VACATED. The attached opinion and order are entered as the final decision in this matter.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

No. 1512 C.D. 2011

Argued: May 15, 2012

James M. Smith, Appellant : v. Township of Richmond, Berks County, Pennsylvania, Gary J. Angstadt, Ronald L. Kurtz, and Donald H. Brumbach

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

BY JUDGE LEAVITT

FILED: October 5, 2012

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 ...


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