Received 12/01/2014 Commonwealth Court of Pennsylvania
Filed 12/01/2014 Commonwealth Court of Pennsylvania 79 CD 2014
COMMONWEALTH COURT OF PENNSYLVANIA ________________________________________________ No. 79 CD 2014 ________________________________________________ RYAN BAGWELL,
Petitioner, vs.
PENNSYLVANIA DEPARTMENT OF EDUCATION,
Respondent,
THE PENNSYLVANIA STATE UNIVERSITY,
Intervenor.
________________________________________________ ANSWER TO PETITIONER’S APPLICATION FOR REARGUMENT ________________________________________________ Appeal from the Final Determination of the Pennsylvania Office of Open Records entered December 20, 2013 at No. AP 2013‐1753 ________________________________________________
Robert L. Byer (25447) Daniel R. Walworth (204968) Brian J. Slipakoff (91850) Duane Morris LLP 30 S. 17th Street Philadelphia, PA 19103‐4196 Tel: 215‐979‐1000 Fax: 215‐979‐1020 Counsel for Intervenor, The Pennsylvania State University
TABLE OF CONTENTS Page INTRODUCTION ................................................................................................... 1 ARGUMENT ............................................................................................................ 1 CONCLUSION ........................................................................................................ 5
Table of Authorities Page(s) Cases Bowling v. Office of Open Records 75 A.3d 453 (Pa. 2013) ................................................................................... 4 California v. Rooney 483 U.S. 307 (1987) (per curiam) ................................................................... 4 Commonwealth v. VanDivner 983 A.2d 1199 (Pa. 2009) ............................................................................... 2 Conchado v. Dep’t of Trans. 941 A.2d 792 (Pa. Cmwlth. 2008) ................................................................ 4 Koch v. Harhsaw 655 A.2d 1011 (Pa. Super. 1994) .................................................................. 4 Tilghman v. Commonwealth 366 A.2d 966 (Pa. Cmwlth. 1976) ................................................................ 4 Court Rules Pa.R.A.P. 2543 .......................................................................................................... 1
INTRODUCTION The Court knows well that reargument is an extraordinary remedy available only upon the showing of “compelling reasons therefor.” Pa.R.A.P. 2543. Merely disagreeing with how the Court adjudicated the appellant’s arguments in a unanimous en banc opinion does not satisfy the controlling standard. The Court’s disagreement with appellant’s argument does not mean that the Court overlooked or misapprehended anything, and Bagwell cites to nothing that requires a different result. The Court should deny the application. ARGUMENT Notwithstanding the standard of Pa.R.A.P. 2543, Bagwell argues mainly that the Court ignored entire sections of his brief and the record before the OOR, and abdicated its role as the ultimate fact‐finder under the Right to Know Law (“RTKL”). Application at 2‐6. These claims are not supported by even a cursory review of the Court’s Opinion.
Bagwell contends that the Court ignored his allegations that portions of the Freeh Firm’s investigation were disclosed to law enforcement, the public and the NCAA, thereby constituting a subject matter waiver over the entire investigation. Application at 2‐6. To the contrary, the Court specifically noted Bagwell’s
claim that “PSU waived privileged by disclosing parts of the findings and conclusions to third parties, including the public.” Opinion at 8. In the section of the Opinion discussing waiver, the Court again noted that “Requester contends PSU deliberately disclosed the subject‐matter of the communications sought here to third parties, including law enforcement and the public.” Id. at 15 (emphasis in quote). And, lastly, the Court specifically addressed and rejected the argument that any disclosure by the Freeh Firm on PSU’s behalf—which obviously would not include Justice Baldwin’s grand jury testimony, in which the Freeh Firm had no involvement—would effectuate a broad subject matter waiver as inconsistent with both Pennsylvania law and the logic underpinning the doctrine of subject matter waiver itself. Id. at 17‐19.
Bagwell faults the Court for supposedly failing in its role as fact‐finder under the RTKL. Application at 8‐12. But the Court considered all of the evidence presented to the OOR and found it wanting.1 Bagwell’s mere disagreement with that evaluation is not a basis for reargument. See Commonwealth v. VanDivner, 983 A.2d 1199, 1201 (Pa. 2009) (“To the extent appellant seeks reargument of the Atkins issue he actually litigated before the Court, the issue was fully aired in the Majority Opinion and the Concurring and Dissenting Opinion, and no further review is warranted.”).
1 Bagwell cites Judge McCullough’s concurrence for the proposition that the OOR did not have a complete record before it. Application at 9. The cited language refers solely to the manner in which the evidence regarding Justice Baldwin’s grand jury testimony came into the OOR record. This is, of course, the one item of evidence that Bagwell agrees was fully considered by the Court. Application at 3. So Judge McCullough’s concerns give no support to Bagwell’s Application.
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Bagwell cites a decision by the Centre County Court of Common Pleas filed the day after oral argument in this case. Application at 11. That decision found a subject matter waiver of Freeh Firm communications based on alleged disclosures to the Big Ten and the NCAA, Application, Appx. D at 21‐22. However, this Court rejected the “similar, if not identical” argument raised by Bagwell as inconsistent with Pennsylvania law.2 Opinion at 18. Obviously, in any conflict between a decision of a court of common pleas and an en banc decision of this Court in its appellate jurisdiction, this Court’s decision controls. Nothing in the decision out of Centre County counsels granting reargument.
Bagwell next claims that the Court wrongly concluded that the University anticipated litigation at the time it retained the Freeh Firm. Application at 6‐7; id. at 12‐13. The Court should reject Bagwell’s argument.
The Court held that Pennsylvania’s work‐product doctrine does not require that litigation be anticipated and, therefore, “PSU did not need to establish that Freeh was retained in anticipation of litigation” before the OOR. Opinion at 13. Bagwell does not seek reargument on this legal question. As a consequence, even if the Court were to change course and agree with Bagwell that litigation was not reasonably anticipated, he would still lose. 2 The analysis of the Court of Common Pleas also is largely irrelevant here, as that court held (incorrectly) that “communications between Penn State and the Freeh Firm . . . are not subject to the attorney client privilege.” Application, Appx. D at 21. The OOR, however, found that the withheld documents do “meet all the elements” of the attorney‐client privilege. 299a. Bagwell did not challenge this finding and is precluded from doing so now.
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The notion that appellate courts “review[] judgments, not statements in opinions,” California v. Rooney, 483 U.S. 307, 311 (1987) (per curiam), should apply with equal force to reargument requests. See also Koch v. Harhsaw, 655 A.2d 1011, 1014‐15 (Pa. Super. 1994) (“it has been held that ‘an objection based on the opinion of an intermediate appellate court will not be reviewed, since the reviewing court reviews only the judgment, not the opinion’” (citation omitted)). This Court need not and should not expend time and resources to rehear an issue that will not affect the judgment reached by the Court.
Bagwell says that the Court should not have considered newspaper articles and other items cited in the University’s brief to satisfy itself that litigation was reasonably anticipated because those items “had not been made part of the OOR record.” Application at 12. Bagwell cites no authority to support an argument that the Court’s taking judicial notice of newspaper articles and court filings showing the imminence of litigation at the time of the Freeh Firm’s retention was improper. If this Court can properly take judicial notice of such materials in a standard appeal, see Conchado v. Dep’t of Trans., 941 A.2d 792, 794 (Pa. Cmwlth. 2008); Tilghman v. Commonwealth, 366 A.2d 966, 967 (Pa. Cmwlth. 1976), logically this Court in reviewing an OOR decision should have at least as much discretion in view of its role under the RTKL as “the ultimate finder[] of fact,” Bowling v. Office of Open Records, 75 A.3d 453, 474 (Pa. 2013).3
The University notes the considerable tension between Bagwell’s reliance on Bowling for the proposition that the Court should have “exercis[ed] its jurisdiction as a fact‐finder,” Application at 9, and his insistence that the Court was barred from considering materials outside the OOR record. 3
4
CONCLUSION This Court should deny the application for reargument. Respectfully submitted, /s/ Robert L. Byer_______________ Robert L. Byer (25447) Daniel R. Walworth (204968) Brian J. Slipakoff (91850) Duane Morris LLP 30 S. 17th Street Philadelphia, PA 19103‐4196 Tel: 215‐979‐1000 Fax: 215‐979‐1020 Counsel for Intervenor, The Pennsylvania State University December 1, 2014
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