IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bruce G. Baron, :

Petitioner :

:

v. : No. 503 M.D. 2016

: Argued: June 7, 2017

Commonwealth Department :

of Human Services; and, :

Health Partners Plans, Inc., :

Respondents :

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

OPINION 

BY JUDGE SIMPSON FILED: September 21, 2017

In this matter of first impression, we consider whether a requester may 

enforce an order to disclose records sought under the Right-to-Know Law (RTKL)1 

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 prejudice.

 

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

I. Background

Petitioner 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.

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,2 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.

After 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. 

Within 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.

 

2 Collectively, the MCOs comprising the Health Plans are: UnitedHealthcare of 

Pennsylvania, Inc.; Aetna Better Health, Inc.; UPMC for You, Inc.; Geisinger Health Plan;

AmeriHealth Caritas of Pennsylvania; AmeriHealth Caritas Northeast; and, Keystone First.
3

Subsequently, 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. 

In his 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 original jurisdiction. 

DHS filed an answer to the Mandamus Petition.3 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.

 

3 DHS stated it “has not provided Petitioner with the requested records as ordered ... 

because [it] does not have custody of the requested documents. Although [DHS] demanded [them],

Health Partners has refused to provide the requested documents.” Answer to Mandamus Pet., ¶13.
4

II. Discussion

Petitioner 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 stay. 

Health 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.

 

A. Legal Standards

As to 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 
5

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. 2013). 

The 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.

B. Preliminary Objections

Health 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. 
6

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. 

1. Mandamus

First, we consider whether the Mandamus Petition states a claim for 

which relief may be granted against either Health Partners or DHS. 

a. Duty on Health Partners

Health Partners argues mandamus is not appropriate against a private 

party. Further, it emphasizes the Disclosure Order does not mandate it to perform 

any action. Therefore, mandamus is an ineffective form of relief as to it. We agree.

“Mandamus is a device that is available in our system to compel a 

tribunal or administrative agency to act when that tribunal or agency has been 

‘sitting on its hands.’” Pa. Dental Ass’n v. Ins. Dep’t, 516 A.2d 647, 652 (Pa. 

1986) (emphasis added). One of the three elements required to state a claim for 

mandamus relief is a mandatory duty on the part of the respondent. Wilson.

Here, the source of the mandatory duty is the Disclosure Order. By its 

express terms, the Disclosure Order imposes no duty on Health Partners with which 
7

Petitioner may enforce compliance. It does not mention the MCOs, or direct DHS to 

obtain responsive records from the MCOs. Because Petitioner cites no other source 

for the mandatory duty, he fails to state a mandamus claim against Health Partners. 

b. Duty on DHS

Next, we consider whether Petitioner states a mandamus claim against 

DHS. On its face, the Disclosure Order imposes a mandatory duty on DHS as it 

directs DHS to disclose responsive records to Petitioner within 30 days. However, 

Petitioner admits that the Disclosure Order he seeks to enforce is the same order 

under attack in the Consolidated Appeals, including a cross-petition he filed. 

Mandamus Pet. at ¶2. These Consolidated Appeals were pending at the time he 

filed the Mandamus Petition. Id. Under these circumstances and applicable law, 

Petitioner cannot state a claim for mandamus. 

(1) Enforceability

The Disclosure Order became an infirm basis for mandamus relief 

once it was challenged in the Consolidated Appeals. Crockett v. Se. Pa. Transp. 

Auth. (Pa. Cmwlth., No. 2068 C.D. 2011, filed May 23, 2012), 2012 WL 8700066

(unreported). Two fundamental issues are disputed in the Consolidated Appeals: 

(1) whether the rates are records of DHS; and, (2) whether the rates are public 

records subject to disclosure under the RTKL. Because the public status of the 

records is questioned, DHS’ alleged mandatory duty of disclosure is not assured. 

For the same reason, Petitioner’s alleged right to relief is unclear. 
8

In Crockett, this Court upheld a trial court’s order sustaining 

preliminary objections to a mandamus petition and dismissing the petition in 

similar circumstances. Like the instant matter, in Crockett, the local agency’s 

appeal of the final determinations was pending at the time the petitioner filed his 

mandamus actions to enforce them. The trial court reasoned that since his right to 

the requested records had not been finally determined, the petitioner could not 

establish a mandatory duty on the part of the agency to provide access. On that 

basis, the trial court held the petitioner failed to state a claim. We affirmed. 

Petitioner contends Crockett is distinguishable because the agency

timely appealed pursuant to Section 1302(a) of the RTKL, 65 P.S. §67.1302(a). 

He disclaims the relevance of the Consolidated Appeals because none of the 

petitions for review complied with Section 1301(a) of the RTKL. 

Section 1301(a) provides the general rule for judicial review of access 

disputes involving Commonwealth agencies. In pertinent part, it states: 

Within 30 days of the mailing date of the final determination of 

the appeals officer ... issued under [S]ection 1101(b) or the 

date a request for access is deemed denied, a requester or the 

agency may file a petition for review or other document as 

might be required by rule of court with the Commonwealth 

Court.

65 P.S. §67.1301(a)(emphasis added). 

Petitioner maintains the RTKL only recognizes appeals filed by the 

requester and the agency. In his view, the timely appeals filed by the Direct-Interest 

Participants do not qualify. Petitioner notes that his own cross-petition for review
9

was not filed within the requisite 30 days, and that he did not invoke our statutory 

jurisdiction under Section 1301 of the RTKL. 

We decline Petitioner’s invitation to construe Section 1301(a) so 

strictly. We also reject his premise that the failure of the RTKL to expressly 

contemplate appeals by parties other than a requester or agency renders such appeals 

less valid. 

First, Petitioner’s overly-technical reading does not account for the 

interplay of Section 1301 with court rules. See, e.g., Pa. R.A.P. 1512 (extending 

appeal deadline for cross-petitions). A court may also extend a statutory appeal 

period when the circumstances warrant it. Ercolani v. Dep’t of Transp., Bureau of 

Driver Licensing, 922 A.2d 1034, 1037 (Pa. Cmwlth. 2007) (“[a] court may permit 

a licensee to appeal nunc pro tunc [when] the licensee’s failure to file a timely 

appeal resulted from extraordinary circumstances involving fraud or a breakdown 

in the administrative or judicial process.”). Moreover, a court possesses the 

inherent right to employ rules for procedure and practice before it so long as the 

rules do not conflict with the laws of the Commonwealth or the United States. 

Appeal of Borough of Churchill, 575 A.2d 550 (Pa. 1990). 

In construing Chapter 13 of the RTKL, “[w]e presume that the 

General Assembly does not intend a result that is absurd, impossible of execution, 

or unreasonable, and that the General Assembly intends the entire statute to be 

effective and certain.” Bowling v. Office of Open Records, 75 A.3d 453, 466 (Pa. 

2013). We consider matters of procedure liberally to ensure access to the courts. 
10

DeFazio v. Labe, 543 A.2d 540 (Pa. 1988); F & M Schaefer Brewing Co. v. Bd. of 

Assessm’t Appeals of Lehigh Cnty., 502 A.2d 310 (Pa. Cmwlth. 1985); see Pa. 

R.C.P. No. 126; Pa. R.A.P. 105(a). Further, it is in the interest of judicial economy 

and just resolutions to avoid piecemeal litigation. With these principles in mind, 

we construe Section 1301 of the RTKL.

At the outset, we reject Petitioner’s contention that his cross-petition 

did not comply with Section 1301(a) of the RTKL. Although it was not filed 

within 30 days as specified in that provision, his cross-petition for review was 

nonetheless timely pursuant to our Rules of Appellate Procedure.

Under Pa. R.A.P. 1512(a)(2), Petitioner had 14 days from the date 

Health Plans served their petition for review to file a cross-petition. By operation of 

the rule, he had additional time beyond the statutory appeal period to file a petition. 

Under a reasoned reading of the statute, in conjunction with applicable rules of 

court, Petitioner’s cross-petition constitutes a petition for review filed by a 

requester pursuant to Section 1301(a) of the RTKL. 

Regardless of whether Petitioner challenged OOR’s final determination

under Section 1301(a), the fact remains that the Direct-Interest Participants timely

petitioned for review. Our RTKL jurisprudence recognizes such third-party appeals 

as proper. Dep’t of Educ. v. Bagwell, 131 A.3d 638 (Pa. Cmwlth. 2016) (Bagwell 

2016); W. Chester Univ. v. Schackner (Bravo), 124 A.3d 382 (Pa. Cmwlth. 2015); 

see also SWB Yankees LLC v. Wintermantel, 45 A.3d 1029 (Pa. 2012) (accepting 

third-party contractor’s participation on appeal). An agency cannot waive a third 
11

party’s right in nondisclosure by action or inaction. Bagwell 2016, 131 A.3d at 649 

(“agencies are not permitted to waive a third party’s interest in protecting records.”). 

That DHS did not appeal does not impair Direct-Interest Participants’ 

appeal rights. On appellate review, the Disclosure Order is subject to reversal or 

modification, undermining any immediate right to relief or mandatory duty to 

disclose. Hence, any attempt to enforce an appealed final determination before 

disposition of the merits is premature.4

 

Because the Disclosure Order is also the subject of the Consolidated 

Appeals, which question whether DHS has any duty to disclose, Petitioner is 

unable to establish that DHS currently owes him a mandatory duty or that he has a 

clear right to relief. Thus, he fails to satisfy the elements for mandamus relief.

(2) Automatic Stay

Based on the supplemental briefing, and cognizant that this matter 

may be appealed, we also analyze the impact of our interpretation of Section 

1301(a) of the RTKL on the stay contained in Section 1301(b) of the RTKL.

 

4

Further, this Court recognizes mandamus may offer relief as to unappealed final 

determinations. See Capinski v. Upper Pottsgrove Twp., 164 A.3d 601 (Pa. Cmwlth. 2017), 

(holding mandamus is only appropriate “where the requester has not appealed the final 

determination to a court for a merits review”) (emphasis added); Uniontown Newspapers v. 

Dep’t of Corr., 151 A.3d 1196 (Pa. Cmwlth. 2016); Wishnefsky v. Dep’t of Corr. (Pa. Cmwlth., 

No. 582 M.D. 2014, filed July 8, 2015), 2015 WL 5460111 (unreported) (unappealed 

Commonwealth agency order may be enforced through mandamus). 
12

Section 1301(b) of the RTKL imposes an “automatic stay” upon the 

filing of an appeal to a final determination. See Office of Open Records v. Center 

Twp., 95 A.3d 354, 364 (Pa. Cmwlth. 2014) (en banc). That “stay [of] the release 

of documents [remains in effect] until a decision [by a Chapter 13 court] is issued.” 

65 P.S. §67.1301(b).

As analyzed above, Petitioner’s timely cross-petition constitutes a 

petition for review filed by a requester under Section 1301(a) of the RTKL. A stay 

under Section 1301(b) is thus automatic, relieving DHS of any duty to disclose.

Mindful that Petitioner may withdraw or discontinue his challenge in 

the Consolidated Appeals, we go one step further and consider whether the DirectInterest Participants’ petitions for review triggered the automatic stay.

In addition to the principles that guide our statutory interpretation of 

Section 1301(a) of the RTKL, we weigh heavily the long-standing practice that 

permits third-party participation in RTKL appeals. See, e.g., Wintermantel; Bagwell 

2016; Dep’t of Corr. v. Maulsby, 121 A.3d 585 (Pa. Cmwlth. 2015); E. Stroudsburg 

Univ. Found. v. Office of Open Records, 995 A.2d 496 (Pa. Cmwlth. 2010) (en banc). 

Moreover, the General Assembly has already pre-judged that the threat of disclosing 

a non-public record warrants an automatic stay. Cf. Grine v. Cnty. of Centre, 138 

A.3d 88 (Pa. Cmwlth. 2016)(en banc)(harm from improper disclosure is irreparable). 

Thus, it would be a waste of judicial resources to require a third party protecting a 
13

recognized interest in non-disclosure to file a motion for a stay pending appeal under 

Process Gas5or other applicable standard.

Accordingly, we construe the automatic stay provisions to apply to 

Direct-Interest Participants’ petitions for review. To do otherwise would nullify

our RTKL jurisprudence recognizing third-party appeal rights as on equal footing 

with that of a requester or an agency as specified in Section 1301(a) of the RTKL.

By necessary implication, the stay applies to all records at issue 

regardless of the basis for the exemption, who asserted it, or who preserved it. The

alternative encourages piecemeal litigation, whereby parts of a final determination 

are enforced and others are disputed, creating confusion for the parties and the courts.

2. Remaining Objections

Because Petitioner fails to state a claim for mandamus relief, we

briefly review Health Plans’ remaining objections in the interest of completeness. 

In sum, we discern no merit in the remaining preliminary objections.6 

 

5

Pa. Pub. Util. Comm’n v. Process Gas Consumers Grp., 467 A.2d 805 (Pa. 1983).

6 We are unpersuaded by Health Partners’ remaining objections under the Defend Trade 

Secrets Act (DTSA), the lis pendens doctrine, and as to the adequacy of a legal remedy in our 

appellate jurisdiction. 

In this context, the DTSA is comparable to the Copyright Act, 17 U.S.C. §§101-1332, in 

that neither federal statute exempts records from disclosure. Ali v. Phila. Planning Comm’n, 125 

A.3d 92 (Pa. Cmwlth. 2015). The DTSA does not expressly provide the rates are confidential or 

trade secrets; rather, the statute creates a private right of action to prosecute the improper use of 

trade secrets. Notably, the DTSA does not designate the rates at issue as trade secrets. Health 

Partners presumes the trade secret status applies to such rates, which is necessary for application 

of the DTSA. The DTSA does not exempt the rates so as to render them non-public. 

(Footnote continued on next page...)
14

III. Conclusion

Petitioner predicated his Mandamus Petition on entitlement to enforce 

the Disclosure Order, which is the same order challenged in the Consolidated 

Appeals. Because the right to requested records has yet to be finally determined in 

the Consolidated Appeals, we sustain Health Partners’ preliminary objections in 

the nature of a demurrer, and we dismiss the Mandamus Petition with prejudice.

 

ROBERT SIMPSON, Judge

 

(continued...)

The doctrine of lis pendens requires proof of three elements: (1) the prior case is the 

same; (2) the parties are substantially the same, and, (3) the relief requested is the same. Pa. 

Pharmacists Ass’n v. Dep’t of Pub. Welfare, 733 A.2d 666 (Pa. Cmwlth. 1999). The threepronged test must be strictly applied when a party seeks to dismiss a claim under lis pendens. 

Hillgartner v. Port Auth. of Allegheny Cnty., 936 A.2d 131 (Pa. Cmwlth. 2007). The 

applicability of lis pendens “is purely a question of law determinable from an inspection of the 

records in the two causes.” Id. at 138.

Our comparison of Petitioner’s Mandamus Petition with his cross-petition reveals 

differences in the types of relief sought. Here, he seeks an order mandating DHS’ compliance 

with the Disclosure Order. In the Consolidated Appeals, he challenges OOR’s rationale in the 

Final Determination, and he seeks a remand and reopening of the record to allow his submission 

of additional evidence. Although there is some overlap as to enforcement, and Petitioner briefs 

many of the same issues in both actions, the requested relief is not the same. 

Also, as to having an adequate remedy by virtue of his cross-petition pending in our 

appellate jurisdiction, Petitioner’s claim is not ripe for enforcement. Therefore, the Consolidated 

Appeals do not currently offer an adequate enforcement remedy. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bruce G. Baron, :

Petitioner :

:

v. : No. 503 M.D. 2016

:

Commonwealth Department :

of Human Services; and, :

Health Partners Plans, Inc., :

Respondents :

O R D E R

AND NOW, this 21st day of September, 2017, the preliminary 

objections filed by Health Partners Plans, Inc., are SUSTAINED, and the petition 

for review is DISMISSED WITH PREJUDICE.

 

ROBERT SIMPSON, Judge