Bruce G. Baron, Petitioner
Commonwealth Department of Human Services; and, Health Partners Plans, Inc., Respondents
Argued: June 7, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON,
Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE
E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE
JOSEPH M. COSGROVE, Judge
matter of first impression, we consider whether a requester
may enforce an order to disclose records sought under the
Right-to-Know Law (RTKL)while an appeal of that order is
pending. Before us are Health Partners Plans, Inc.'s
(Health Partners) preliminary objections in the nature of a
demurrer to Bruce G. Baron's (Petitioner) petition for
review seeking mandamus relief in our original jurisdiction
to enforce the Office of Open Records' (OOR) order
directing the Department of Human Services (DHS) to disclose
records to him within 30 days. Because Petitioner fails to
show a clear right or mandatory duty, we sustain the
preliminary objections and dismiss his petition with
submitted a RTKL request to DHS for rates paid to nursing
homes by managed care organizations (MCOs) participating in
the Medical Assistance program, HealthChoices. After
notifying the MCOs, DHS responded that it lacked possession
of the rates. Based on the MCOs' claimed exemptions, DHS
denied access. Petitioner appealed to OOR.
invited the parties to submit evidence, and it advised DHS to
notify interested third parties. After receiving notice, the
MCOs, comprised of the Health Plans,  Gateway Health Plan, Inc.
(Gateway) and Health Partners, elected to participate in
OOR's proceedings under Section 1101(c) of the RTKL, 65
P.S. §67.1101(c). The MCOs submitted evidence to support
their claimed exemptions. Gateway also argued the rates did
not qualify as records of DHS under the RTKL.
developing the evidentiary record, OOR granted
Petitioner's appeal. See Baron v. Dep't of Human
Servs., OOR Dkt. No. AP 2016-1038 (July 13, 2016) (Final
Determination). Specifically, it stated: "[DHS] is
required to provide the requested records as
directed." Id. at 10 (emphasis added)
(Disclosure Order). Notably, the Disclosure Order did not
direct the MCOs to take any action.
30 days, the Health Plans and Gateway filed petitions for
review to the Disclosure Order. Petitioner then filed a
timely cross-petition for review, later amended to delete any
reference to the RTKL as a basis for our jurisdiction.
Petitioner filed a "Petition for Review in Mandamus
& Related Ancillary Relief Petition for Enforcement of
Final Order" (Mandamus Petition) against DHS and Health
Partners as respondents. The Mandamus Petition did not name
OOR as a respondent, or ask this Court to compel OOR to
enforce its Disclosure Order pursuant to Pa. R.A.P. 3761.
Mandamus Petition, Petitioner acknowledged the timely appeals
by the Health Plans (No. 1357 C.D. 2016) and Gateway (No.
1358 C.D. 2016), (collectively, Direct-Interest
Participants). Mandamus Pet. at ¶2. Petitioner also
admitted he filed a cross-petition for review, which, in
part, asked this Court to enforce the Disclosure Order in our
appellate jurisdiction (No. 1427 C.D. 2016). Id.
This Court, on its own motion, consolidated the three appeals
to the Final Determination (collectively, Consolidated
Appeals). Significantly, in our appellate jurisdiction,
Petitioner challenges the final determination underlying the
Disclosure Order for which he now seeks enforcement in our
filed an answer to the Mandamus Petition. Health Partners
filed preliminary objections to the Mandamus Petition, to
which Petitioner replied. After argument on the preliminary
objections, President Judge Mary Hannah Leavitt directed the
parties to brief whether the Consolidated Appeals triggered
the automatic stay in Section 1301(b) of the RTKL, 65 P.S.
§67.1301(b). The en banc Court heard argument,
seriately, with the Consolidated Appeals. After briefing and
argument, the matter is now ready for disposition.
alleges the Disclosure Order binds DHS and Health Partners.
Mandamus Pet. at ¶8 ("The [Disclosure Order]
ordered DHS and Health Partners … to provide to
Petitioner documents in the constructive possession of DHS
…."). He also contends there is no stay in effect
under Section 1301(b) of the RTKL, 65 P.S. §67.1301(b),
because none of the Consolidated Appeals met the statutory
criteria set forth in Section 1301(a) of the RTKL, 65 P.S.
§67.1301(a). Notwithstanding the Consolidated Appeals,
Petitioner claims the Disclosure Order remains enforceable
because neither DHS nor Health Partners exercised its right
to appeal from the Disclosure Order, and neither requested a
Partners argues Petitioner cannot sustain a claim because he
does not satisfy the prerequisites for mandamus relief. In
addition to the demurrers based on the absence of a mandatory
duty, Health Partners maintains the Consolidated Appeals
triggered the automatic stay under the RTKL, and afford
Petitioner an adequate legal remedy in this Court's
appellate jurisdiction. Further, it claims the Mandamus
Petition is preempted by the Defend Trade Secrets Act (DTSA),
18 U.S.C. §§1831-1839, and is barred by the
doctrine of lis pendens.
preliminary objections in the nature of a demurrer, we may
sustain preliminary objections only when, based on the facts
pled, it is clear and free from doubt that the complainant
will be unable to prove facts legally sufficient to establish
a right to relief. Mazur v. Trinity Area Sch. Dist.,
961 A.2d 96 (Pa. 2008). "For the purpose of evaluating
the legal sufficiency of the challenged pleading, this Court
must accept as true all well-pled, material, and relevant
facts alleged in the complaint and every inference that is
fairly deducible from those facts." Markham v.
Wolf, 147 A.3d 1259, 1270 (Pa. Cmwlth. 2016) (en
banc). This does not include any legal conclusions
stated in the pleading. Armstrong Cnty. Memorial Hosp. v.
Dep't of Pub. Welfare, 67 A.3d 160 (Pa. Cmwlth.
common law writ of mandamus lies to compel the performance of
a ministerial act or mandatory duty. Chesapeake
Appalachia, LLC v. Golden, 35 A.3d 1277 (Pa. Cmwlth.
2012). "The burden of proof falls upon the party seeking
this extraordinary remedy to establish his legal right to
such relief." Werner v. Zazyczny, 681 A.2d
1331, 1335 (Pa. 1996). To state a claim for mandamus, a
petitioner must establish the following three elements: (1) a
clear legal right to relief in the petitioner; (2) a
corresponding duty in the respondent; and, (3) the lack of
any other adequate and appropriate remedy. Wilson v. Pa.
Bd. of Prob. & Parole, 942 A.2d 270, 272 (Pa.
Cmwlth. 2008). "Mandamus is not available to establish
legal rights but only to enforce rights that have been
established." Smires v. O'Shell, 126 A.3d
383, 387 (Pa. Cmwlth. 2015) (citations omitted). Further,
"[a]s a high prerogative writ, mandamus is rarely issued
and never to interfere with a public official's exercise
of discretion." Id.
Partners raises several preliminary objections in the nature
of a demurrer pursuant to Pa. R.C.P. No. 1028(a)(4). First,
Health Partners argues mandamus is not a form of relief that
may be obtained against it as a private party. Second, it
asserts the Disclosure Order does not mandate non-agency
action. Third, it explains DHS owes no duty because the
Disclosure Order is the subject of the Consolidated Appeals.
As a result, disclosure is stayed under Section 1301(b) of
the RTKL, 65 P.S. §67.1301(b). Further, disclosure is
precluded by the DTSA. In addition, Health Partners contends
the Mandamus Petition is barred by the doctrine of lis
pendens. Essentially, it asserts Petitioner has an
adequate legal remedy through the Consolidated Appeals, and
his claims fall within this Court's appellate, as opposed
to original, jurisdiction.