Pennsylvania State Ass'n of Township Supervisors v. Department of General Services of the Commonwealth of Pennsylvania

666 A.2d 1153, 1995 Pa. Commw. LEXIS 479
CourtCommonwealth Court of Pennsylvania
DecidedOctober 30, 1995
StatusPublished
Cited by11 cases

This text of 666 A.2d 1153 (Pennsylvania State Ass'n of Township Supervisors v. Department of General Services of the Commonwealth of Pennsylvania) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennsylvania State Ass'n of Township Supervisors v. Department of General Services of the Commonwealth of Pennsylvania, 666 A.2d 1153, 1995 Pa. Commw. LEXIS 479 (Pa. Ct. App. 1995).

Opinions

SMITH, Judge.

Petitioners in this declaratory judgment action are the Pennsylvania Association of Township Supervisors, the Pennsylvania State Association of Boroughs and East Cain Township (collectively, the Associations). The Associations filed a petition for review in this Court’s original jurisdiction seeking a declaration that the Intergovernmental Agreement (Agreement) entered into between the Pennsylvania Department of General Services (DGS) and the Pennsylvania League of Cities and Municipalities (PLCM) is invalid. The Associations assert that the Agreement violates the statute known as the “Right-to-Know Act,” Act of June 21, 1957, P.L. 390, os amended, 65 P.S. §§ 66.1-66.4, and that both DGS and PLCM exceeded their statutory authority in entering into the contract and wrongfully subjugated the public interest to a proprietary interest.

I.

After a status conference following the discharge of a rule to show cause why this case should not be dismissed for want of prosecution, a judge of this Court directed the Associations to file a motion for judgment on the [1155]*1155pleadings and directed DGS and PLCM to file cross-motions. These motions pursuant to Pa.R.C.P. No. 1034 are presently before the Court for disposition.1

The parties agree that among the duties of DGS is administering the L3P Cooperative Purchasing Program (Purchasing Program) established pursuant to Section 2403(h) of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, added by Section 1 of the Act of July 9, 1971, P.L. 201, 71 P.S. § 633(h). That Section provides in part that DGS shall be empowered as follows:

To permit subject to such terms and conditions as the Department of General Services may, and as hereinafter specifically provided, shall, prescribe, any political subdivision or authority created by a political subdivision ... to participate in or purchase off purchase contracts for materials, supplies and equipment entered into by the department.

The Purchasing Program (also known as “piggyback” purchasing) permits municipalities and certain other entities to realize savings by being included in purchase contracts of the Commonwealth and benefitting from lower prices due to greater volume.

Before 1992, municipalities dealt directly with DGS regarding the Purchasing Program, and DGS provided information free of charge. On November 1, 1992, DGS entered into the Agreement with PLCM, an unincorporated association formed pursuant to Section 1 of the Act of April 7,1925, P.L. 181, as amended, 53 P.S. § 451, which provides that cities “may form and organize leagues of ... • cities and hold annual conventions for the study and consideration of such municipal affairs as concern and pertain to the cities comprising the league.”

Paragraph 5 of the Agreement provides:
In order for a political subdivision to receive information in regard to contracts available for political subdivisions to participate in or purchase from, it will be required by DGS and [PLCM] to pay a subscriber fee to [PLCM]. Payment of the subscriber fee will entitle the subscriber to receive piggyback purchasing material and information from [PLCM] in addition to access to a toll-free 800 number. ... The subscriber fee shall be set at an amount to cover [PLCM’s] administrative costs and expenses in performing its obligations under this agreement. The amount of the fee(s) ... must be approved by DGS. The amount of the approved fee(s) shall be published by DGS in the “Pennsylvania Bulletin”.

The fee is currently $50 per year. Paragraph 7 states in part that “DGS shall use [PLCM] as its exclusive representative for the dissemination of contract information to political subdivisions.”

The Pennsylvania State Association of Township Supervisors and the Pennsylvania State Association of Boroughs characterize themselves as competitors of PLCM. They contend that the Agreement violates Section 2 of the Right-to-Know Act, 65 P.S. § 66.2, which provides: “Every public record of an agency shall, at all reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania.” The Associations assert that, within the definitions in the Right-to-Know Act, DGS is an “agency,” and the purchase contract information is a “public record.” Viewing a political subdivision seeking such information as a “citizen,” the Associations conclude that every political subdivision has a right of free access to the purchase contract information. The subscription fee requirement of the Purchasing Agreement violates this right, they contend, and therefore creates an impediment to the free access to public records contemplated by Section 2.

The Associations recognize that the right to take extracts or make copies of public records conferred by Section 3 of the Right-to-Know Act, 65 P.S. § 66.3, is subject to the discretion of the agency, which this Court has held includes reproduction procedures and costs, Dooley v. Luzerne County Board of Assessment Appeals, 168 Pa.Cmwlth. 242, [1156]*1156649 A.2d 728 (1994). They argue, however, that the subscription fee and such other subscription requirements as PLCM may set exceed the agency’s discretion under Section 3. The Deputy Secretary for Procurement of DGS stated in his affidavit that a municipality may receive the information directly from DGS if a citizen submits a Right-to-Know Act request and pays the costs of photocopying and mailing. The Associations describe this statement as being self-serving and contrary to the plain language of the Agreement, which must be taken to control.

DGS responds that the Agreement shows that DGS entered into it to increase political subdivision participation in the Purchasing Program through wider and more timely dissemination of the Purchasing Program information and also to realize savings for DGS in terms of administration and expenses. It notes that Section 2403(h) of the Administrative Code of 1929 nowhere requires DGS to disseminate such information directly and that Section 2401.1(15), 71 P.S. § 631.1(15), specifically authorizes DGS to enter into contracts of all kinds necessary or convenient for carrying out its operations. DGS also argues that the Associations misconstrue the exclusivity provision of the Agreement and asserts that the provision does not affect the right of any citizen to file a Right-to-Know Act request with DGS directly.2

II.

This Court has stated that a motion for judgment on the pleadings in the Court’s original jurisdiction is in the nature of a demurrer; all of the opposing party’s allegations of fact are viewed as true, and only those allegations specifically admitted may be considered against that party. Pennsylvania Ass’n of Life Underwriters v. Foster, 147 Pa.Cmwlth. 591, 608 A.2d 1099 (1992). Such a motion will summarily dispose of the case only where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

Concerning PLCM’s argument, the Court observes that Section 7533 of the Declaratory Judgments Act, 42 Pa.C.S.

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Bluebook (online)
666 A.2d 1153, 1995 Pa. Commw. LEXIS 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-state-assn-of-township-supervisors-v-department-of-general-pacommwct-1995.