IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven Burda, :

:

Petitioner :

:

v. : No. 1779 C.D. 2016

: Submitted: October 27, 2017

Pennsylvania Judicial : 

Conduct Board, :

:

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY

SENIOR JUDGE COLINS FILED: November 30, 2017

Steven Burda (Petitioner) petitions, pro se, for review of a final 

determination of the Office of Open Records (OOR) dated October 13, 2016, which 

denied his appeal under the Right-to-Know Law1for lack of jurisdiction and 

transferred the appeal to the Appeals Officer for the Judicial Conduct Board of 

Pennsylvania (JCB). We affirm. 

On September 23 and 28, 2016, Petitioner submitted a request to the 

JCB under the Right-to-Know Law seeking information on how many Right-toKnow Law appeals were denied as untimely by the JCB based on improper 

application of the appeal deadline. (Record Item (R. Item) 1, Petitioner’s Appeal to 

 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
2

OOR, 9/28/16 Email, Reproduced Record (R.R.) at 12.) 2 By letter dated October 

5, 2016, the JCB denied this request on the grounds that it required the creation of a 

record that does not exist and on the ground that it was not a financial record. (Id., 

10/5/16 Letter, R.R. at 6-7.) On October 12, 2016, Petitioner appealed this denial to 

OOR. (Id., Petitioner’s Appeal to OOR, R.R. at. 3-14.) On October 13, 2016, OOR 

denied Petitioner’s appeal on the ground that the JCB is a judicial agency and is 

therefore not subject to the jurisdiction of OOR. (R. Item 2, OOR Final 

Determination, R.R. at 16-17.) Petitioner has appealed that decision to this Court.3 

OOR correctly denied Petitioner’s appeal. OOR does not have 

jurisdiction to hear an appeal from the denial of a record request by a judicial agency. 

Sections 503(b) and 1101(a) of the Right-to-Know Law, 65 P.S. §§ 67.503(b), 

 

2 Petitioner argues in his brief that this appeal involves denial of a request for “documents 

concerning the finalized investigation into the issue of the emails circulated by, between, and 

among members of the judiciary, lawyers, and others that was investigated by Doug Gansler per 

appointment by the PA Office of Attorney General” (the Gansler documents). (Petitioner’s 

Amended Br. at 7.) That contention is inaccurate. No such request appears in the certified record

in this appeal. Instead, the certified record is clear that the only Right-to-Know Law request before 

OOR in its October 13, 2016 decision in Docket No. 2016-1713 that is the subject of this appeal 

was Petitioner’s request for information on the number of JCB denials of Right-to-Know Law 

appeals. Accordingly, no Right-to-Know Law request concerning the Gansler documents is before 

the Court in this appeal. The JCB’s argument that Petitioner waived arguments by failing to state 

them in his petition for review, however, is also erroneous. Under the language of Rule 1513 of 

the Rules of Appellate Procedure prior to 2015, issues not raised in a petition for review appealing 

an agency determination were waived. See, e.g., Glunk v. Department of State, 102 A.3d 605, 611 

(Pa. Cmwlth. 2014); Jimoh v. Unemployment Compensation Board of Review, 902 A.2d 608, 611

(Pa. Cmwlth. 2006). That is no longer the law. Rule 1513 was amended on December 2, 2014,

effective January 1, 2015, and now provides that “the omission of an issue from the statement [of 

objections in the petition for review] shall not be the basis for a finding of waiver if the court is 

able to address the issue based on the certified record.” Pa. R.A.P. 1513(d)(5). See also Pa. R.A.P. 

1513 Official Note – 2014 (stating that the December 2, 2014 amendments “are intended to 

preclude a finding of waiver if the court is able, based on the certified record, to address an issue 

not within the issues stated in the petition for review but included in the statement of questions 

involved and argued in a brief”). 

3 This Court exercises plenary, de novo review of OOR’s determination in this matter. Bowling v. 

Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
3

67.1101(a); Faulk v. Philadelphia Clerk of Courts, 116 A.3d 1183, 1185-86 (Pa. 

Cmwlth. 2015); Frazier v. Philadelphia County Office of Prothonotary, 58 A.3d 

858, 859 (Pa. Cmwlth. 2012). 

Petitioner argues that the JCB is not a judicial agency. We do not agree. 

The Right-to-Know Law defines “[j]udicial agency” as “[a] court of the 

Commonwealth or any other entity or office of the unified judicial system.” Section 

102 of the Right-to-Know Law, 65 P.S. § 67.102. The JCB is an entity or office of 

the unified judicial system. Pa. Const. art. 5, § 18(a) (creating the JCB as “an 

independent board within the Judicial Branch”); 42 Pa. C.S. § 2101(a) (“In 

accordance with section 18 of Article V of the Constitution of Pennsylvania, the 

Judicial Conduct Board shall be an independent board within the Judicial Branch”); 

Commonwealth ex rel. Judicial Conduct Board v. Griffin, 918 A.2d 87, 94 (Pa. 2007)

(the JCB “is an appointed entity of limited scope, created within the judicial system 

itself”). Schneller v. Judicial Conduct Board, (Pa. Cmwlth., No. 239 M.D. 2014, 

filed Dec. 11, 2014), 2014 WL 10298808, aff’d without op., 123 A.3d 326 (Pa. 

2015),4cited by Petitioner, is not to the contrary. In Schneller, the Court held the 

JCB was not a court and that an action against it for mandamus was therefore within 

this Court’s original jurisdiction. Slip op. at 4-7, 2014 WL 10298808 at *2-*3. The 

Court, however, also specifically held that the JCB is an agency of the judicial 

system. Id. at 5-7, 2014 WL 10298808 at *2-*3. The issue here is not whether the 

JCB is a court, but whether it is an entity within the judicial system. Because the 

JCB is an entity within the judicial system, it is a judicial agency under the Rightto-Know Law. 65 P.S. § 67.102. 

 

4 Because it is an unreported decision, Schneller is not binding precedent, but is considered by the 

Court for its persuasive value. 210 Pa. Code § 69.414(a).
4

Petitioner also argues that the JCB is subject to OOR’s jurisdiction 

because it is an independent state agency. This argument likewise fails. OOR has 

jurisdiction over appeals from denials of Right-to-Know Law requests by 

Commonwealth agencies and “Commonwealth agency” is defined as including “an 

independent agency and a State-affiliated entity.” 65 P.S. §§ 67.102, 67.503(a),

67.1101(a). The Right-to-Know Law, however, also expressly provides that the 

term “Commonwealth agency ... does not include a judicial or legislative agency.” 

65 P.S. § 67.102. Because the JCB is “an independent board within the Judicial 

Branch,” Pa. Const. art. 5, § 18(a) (emphasis added); 42 Pa. C.S. § 2101(a) (emphasis 

added), it is a judicial agency and is not within OOR’s jurisdiction, regardless of its 

status as an independent entity. 

Because OOR correctly determined that it did not have jurisdiction to 

hear Petitioner’s appeal, we affirm. 

_________________ ____________________

JAMES GARDNER COLINS, Senior Judge

Judge Brobson did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven Burda, :

:

Petitioner :

:

v. : No. 1779 C.D. 2016

: 

Pennsylvania Judicial : 

Conduct Board, :

:

Respondent :

O R D E R

AND NOW, this 30th day of November, 2017, the final determination 

of the Office of Open Records is AFFIRMED.

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge