IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Montgomery County, :

Appellant :

:

v. : No. 228 C.D. 2022

:

Megan Brock : Submitted: July 1, 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE CEISLER FILED: September 28, 2022

Before this Court is the appeal of Montgomery County (County) from the

February 7, 2022 orders of the Montgomery County Court of Common Pleas (trial 

court), which denied the County’s petition seeking leave to appeal a decision of the 

Pennsylvania Office of Open Records (OOR) nunc pro tunc (Petition), and which 

granted the motion filed by Megan Brock (Brock) to quash the Petition. After 

review, we affirm the trial court.

I. Background

The facts in this matter are undisputed. On March 16, 2021, Brock filed a 

request under the Right-to-Know Law (RTKL),1seeking copies of the following:

[A]ll communications, emails, presentations, and 

documents received by any [County] Department of 

Health staff or directors from June 1, 2020[,] to Mach [sic] 

15, 2021[,] that reference the following terms: CHOP, 

Children’s Hospitals of Pennsylvania, Policy lab, Dr. 

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

Rubin, Pilot testing program, assurance testing program, 

in school COVID rapid testing, Dr. Damsker, Val 

Arkoosh. 

Reproduced Record (R.R.) at 12a. On April 22, 2021, the County indicated that the 

responsive records for the request consisted of 124,007 pages, which required 

prepayment of duplication costs in the amount of $31,001.75. Id. That same day, 

Brock filed a second RTKL request seeking the following:

Copies of all communications, emails, presentations, and 

documents received by [County] staff or directors on the 

domain monctopa.org from December 10, 2020[,] to 

December 22, 2020[,] that reference the following terms: 

Dave Rubin, Rachel Levine, Sec. of Health, Secretary of 

Health, CLIA licenses, CLIA license, Michael Huff.

Id.

As the records responsive to the second request consisted of 4,579 pages, the 

County sought prepayment of duplication costs in the amount of $1,189.75. Id. 

Brock challenged the costs assessed by the County to the OOR, which consolidated 

the matters and granted Brock’s appeal on July 6, 2021, after concluding that the 

County failed to establish a right to prepayment of costs. Id. at 13a, 18a.

The OOR’s final determination relied on Department of Education v. Bagwell, 

131 A.3d 638, 654 (Pa. Cmwlth. 2016), in which this Court held that an agency may 

only pass on duplication costs that relate to the “pages to which an agency is granting 

access.” While Section 1307(h) of the RTKL allows an agency to require 

prepayment of any fees associated with a RTKL request where the total is expected 

to exceed $100, Section 1307(g) specifies that such fees must be reasonable, and an 

agency may not impose a fee for reviewing a record to determine whether it is an 

accessible public record. 65 P.S. § 67.1307(g)-(h). The OOR found that it was 
3

unclear whether the County limited its records search by the terms specified in each 

RTKL request or if the County’s search results included emails that Brock had not 

sought. R.R. at 17a. The OOR also found that the County provided no evidence to 

support its assertion that the records could not be redacted electronically and 

provided in electronic format. Id. Furthermore, the County’s statement that it 

reviewed the records to determine their accessibility under the RTKL was refuted 

by the affidavits of Joshua Stein (Attorney Stein), the County’s solicitor and open 

records officer, who advised that the records must be reviewed manually to separate 

records that “may require legal review or redaction from those [that] might be public 

records not subject to any exception[.]” Id. As a result, the County had not 

established the number of pages that would “actually need to be duplicated[.]” Id. 

The OOR noted that neither Section 1307 of the RTKL nor the OOR’s fee schedule 

permitted an agency to charge duplication fees for the purpose of reviewing records 

in hard copy. Id. at 18a. Accordingly, the OOR directed that the County provide 

the responsive records within 30 days, subject to permissible copying fees, with 

redactions made electronically, if possible. Id. 

The OOR’s July 6, 2021 final determination indicated that the County had 30 

days to appeal its decision to the trial court. Id. On September 9, 2021, when the 

County failed to provide the records responsive to her RTKL requests, Brock filed 

an action in mandamus with the trial court, seeking enforcement of the OOR’s final 

determination. Id. at 22a. In a September 9, 2021 email to Attorney Stein, Brock’s 

counsel inquired whether Stein would accept service of the mandamus complaint on 

the County’s behalf. Id. After receiving no response from Attorney Stein, Brock

arranged for service by the County Sheriff’s Office, which occurred on October 27, 
4

2021. Id. at 23a. The County filed the Petition seeking nunc pro tunc relief on 

November 16, 2021. Id. at 2a. 

In support of the Petition, the County asserted that “the [COVID] pandemic, 

associated staff quarantines[,] and staffing shortages related to the [COVID] 

pandemic, mail delays, and office closings in 2021” caused “an administrative 

breakdown on the part of the County.” Id. at 6a. The County also blamed its late 

appeal on “an unprecedented number of [RTKL requests] related to the rapidly 

changing laws and regulations pertaining to the [COVID] pandemic[] and election

related processes.” Id. The County noted that it filed a timely appeal on a “nearly 

identical matter[.]” Id. Therefore, granting the Petition would put each case on 

“equal footing,” with no prejudice to Brock or the interests of justice. Id. Otherwise, 

the County suggested that it would be obligated to release the personal medical 

information of “potentially thousands of County residents,” including that of minor 

children, in violation of their constitutional rights and federal and state law. Id. 

Brock filed a motion to quash the Petition on December 27, 2021, arguing that 

the County’s negligent failure to file a timely appeal did not warrant nunc pro tunc 

relief. Id. at 21a, 23a. Brock asserted that the County was apprised of the need to 

appeal the OOR’s decision on multiple occasions, as it received the OOR’s final 

determination on July 6, 2021, Attorney Stein received a copy of Brock’s mandamus 

complaint in the September 9, 2021 email from Brock’s counsel, and the County 

was formally served a copy of the mandamus complaint on October 27, 2021. Id. at 

24a, 69a, 78a. Despite such notice, the County only filed the Petition seeking nunc 

pro tunc relief with the trial court on November 16, 2021. Id. at 24a. 

At a February 7, 2022 hearing before the trial court, Attorney Stein 

acknowledged that the County requested prepayment of duplication costs so that it 
5

could “review and redact” records that would be protected from disclosure by federal 

or state law. Id. at 48a. He also acknowledged that the County “failed to appeal the 

[OOR’s decision] in a timely fashion” due to “an administrative breakdown on the 

part of the County.” Id. at 49a, 57a-58a. Nevertheless, Attorney Stein argued that 

the County’s failure to file a timely appeal “should not require the disclosure of 

records” in violation of the law. Id. at 50a.2 In response, Brock’s counsel argued 

that the County failed to file its appeal despite having multiple opportunities to do 

so, and no circumstances existed that would justify nunc pro tunc relief. Id. at 54a. 

The trial court denied the Petition and granted Brock’s motion to quash in 

separate orders issued on February 7, 2022. Original Record (O.R.), Item Nos. 13-

14. This appeal followed.3 In its opinion supporting the February 7, 2022 orders, 

the trial court noted that an appeal nunc pro tunc is appropriate when the delay in 

filing an appeal is due to “extraordinary circumstances involving fraud, or some 

breakdown in the court[’]s operation through a default of its officers.” O.R., Item 

No. 19, trial ct. op. at 2. Nunc pro tunc relief is not warranted where the late filing 

is due to the moving party’s negligence. Id. The trial court found that the County’s 

delay in appealing was due to its own negligence, and the County failed to establish 

“extraordinary circumstances involving fraud or a breakdown in the court[’]s 

2 We assume this argument is based on the County not having additional time to properly 

redact the records prior to release. Beyond the reference to the County’s administrative 

breakdown, counsel makes no attempt to argue the elements required for nunc pro tunc relief.

3 Our review of the trial court’s decision is limited to determining whether the findings of 

fact are supported by competent evidence, whether the trial court committed an error of law, or 

whether the trial court abused its discretion in reaching a decision. In re Right to Know Law 

Request Served on Venango Cnty.’s Tourism Promotion Agency & Lead Econ. Dev. Agency, 83 

A.3d 1101, 1104 n.3 (Pa. Cmwlth. 2014).
6

operation through a default of its officers.” Id. at 3. Therefore, the trial court urged 

that this Court affirm its February 7, 2022 orders. 

II. Issue

The issue before this Court is whether the trial court erred in denying the 

County’s Petition and granting Brock’s motion to quash the Petition.

III. Discussion

Section 1302(a) of the RTKL, 65 P.S. § 67.1302(a), pertinently provides that

“[w]ithin 30 days of the mailing date of the [OOR’s] final determination relating to 

a decision of a local agency,” the local agency may file an appeal with the court of 

common pleas in the county where the local agency is located. The definition of 

“local agency” under Section 102 of the RTKL, 65 P.S. § 67.102, includes a political 

subdivision. As the County does not dispute that it is a political subdivision and 

OOR mailed its final determination on July 6, 2021, the County had until August 5, 

2021, to file its appeal. The County’s Petition seeking nunc pro tunc relief was filed 

more than four months later, on November 16, 2021. 

A party must strictly adhere to the statutory provisions for filing an appeal, 

and the time for taking an appeal will not be extended as a matter of grace or mere 

indulgence. Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001) (internal citations 

omitted). An appeal nunc pro tunc will be allowed where the appeal was untimely 

filed due to fraud or a breakdown in the administrative process. Bass v. 

Commonwealth, 401 A.2d 1133, 1135 (Pa. 1979). Nunc pro tunc relief is also 

appropriate where an appeal is untimely due to non-negligent circumstances, as they 

relate to the appellant or the appellant’s counsel, where the appellant’s notice of 

appeal was filed shortly after the expiration date, and where the appellee is not 

prejudiced by the delay. Criss, 781 A.2d at 1159. A nunc pro tunc appeal in non-
7

negligent circumstances only applies “in unique and compelling cases” in which the 

appellant establishes that it attempted to file an appeal but was precluded from doing 

so by “unforeseeable and unavoidable events[.]” Id. at 1160. Furthermore, the 

appellant must demonstrate that the delay in filing is not attributable to the 

appellant’s negligence. Cook v. Unemployment Comp. Bd. of Rev., 671 A.2d 1130 

(Pa. 1996).

The County’s arguments largely reiterate those it made before the trial court. 

It “acknowledges that an element of negligence” existed with respect to the County’s 

failure to file a timely appeal, but suggests that such failure took place “in the midst 

of extraordinary circumstances[,]” consisting of the COVID pandemic, receipt of 

“an unprecedented number of [RTKL] requests[,]” and staffing shortages. County 

Br. at 8-9. The County notes that, in its capacity as a political subdivision, the 

County would be permitted to file a civil action that would otherwise be time-barred 

by the statute of limitations under the doctrine that “time does not run against the 

king[,]” unless a statute expressly states otherwise. Id. at 10. A political subdivision 

similarly does not lose its right to raise the defense of sovereign immunity should its 

counsel fail to raise it at the appropriate time in a proceeding. Id. The County argues 

that, because such “litigation errors” by a political subdivision are excused in other 

circumstances, the County should likewise be excused for failing to timely appeal 

the OOR’s final determination. Id. at 11-12. The County cites no precedent for 

granting a political subdivision nunc pro tunc relief based on its own negligent 

failure to file a timely appeal. 

The County also suggests that nunc pro tunc relief is appropriate considering 

the administrative burden faced by the County in reviewing, redacting, and 

producing an estimated 128,586 pages of records, at taxpayer expense, without the 
8

prepayment of more than $32,000 in expected duplication costs and within 30 days

of the OOR’s final determination. Id. at 13. The County further cites as a basis for 

relief the potential exposure of legally protected health information, given that the 

OOR directed production of the responsive records within 30 days. The County 

suggests it is entitled to relief given this timeframe, and the volume of records 

involved, as the County will have to choose between thoroughly reviewing the 

records and producing them in an untimely manner, thus exposing the County to 

penalties under Section 1305(b) of the RTKL,

4 or providing a timely response 

without undertaking the careful review required of documents containing protected 

information. Moreover, the County argues that there is no guarantee Brock will pay 

the high anticipated cost of duplicating the responsive records. Finally, the County 

argues that the OOR’s final determination in this matter conflicts with another OOR 

determination involving a “nearly identical request” made by Brock.

5

 Id. at 15. 

Allowing the instant OOR determination to stand would create “confusion and 

uncertainty that is contrary to the public interest.” Id. 

Brock argues that the County’s admitted negligence in failing to appeal the 

OOR’s July 6, 2021 final determination until it filed the Petition more than four 

months later does not establish the extraordinary circumstances necessary for nunc 

pro tunc relief. As to the County’s alleged administrative burden, Brock notes that, 

4 Section 1305(b) of the RTKL authorizes the imposition of penalties for each day an 

agency fails to comply with a court order directing the production of records. 65 P.S. § 67.1305(b).

5 The County is correct that Brock filed a substantively similar RTKL request in Brock v. 

Montgomery County Intermediate Unit #23, (Pa. Off. Open Recs., No. AP 2021-1073, filed July 

1, 2021), 2021 WL 2789035 (MICU). The issue resolved by the OOR in MICU, however, 

concerned whether Brock’s RTKL request was insufficiently specific. The OOR’s resolution in 

MICU is unrelated and irrelevant to its determination that the County was not entitled to 

prepayment of duplication costs in the instant matter, and we do not perceive how affirming the 

OOR would create “confusion and uncertainty.”
9

as of the date she filed her principal brief in the instant appeal, nearly a year has 

passed from the date the OOR issued its final determination, during which period 

the County could have produced the requested records. Brock argues that the RTKL 

necessarily imposes an administrative burden on any local agency responding to a 

RTKL request, and the County should direct its complaints in that regard to the 

legislature, not the courts. With respect to the County’s public policy argument that 

the appeal deadline should not apply to a political subdivision, Brock points out that 

the appeal period set forth in Section 1302(a) expressly applies to local agencies,

such as the County. Finally, arguing that the County’s delay in complying with the 

OOR’s final determination constitutes bad faith, Brock asks that this Court impose 

attorney’s fees and litigation costs, as provided in Section 1304(a)(1) of the RTKL,

and impose a civil penalty of $1,500 per record, pursuant to Section 1305(a) of the 

RTKL.6

We must reject the County’s arguments, as the record demonstrates that the 

County’s own negligence was the cause of its failure to timely appeal the OOR’s 

July 6, 2021 final determination. There is no evidence of an administrative 

breakdown on the part of an entity other than the County, and the County 

acknowledged in its answer to Brock’s motion to quash that it received notice of the 

July 6, 2021 final determination, and Attorney Stein, the County’s solicitor and open 

records officer, received a copy of Brock’s mandamus complaint in a September 9, 

2021 email from her counsel. While the County was officially served Brock’s

6 Section 1304(a)(1) of the RTKL, 65 P.S. § 67.1304(a)(1), provides that, where a court 

grants access to a record after the request was deemed denied, the court may award reasonable 

attorney’s fees and costs of litigation where the agency receiving the request “willfully or with 

wanton disregard deprived the requester of access to a public record” accessible under the RTKL 

or otherwise acted in bad faith. Section 1305(a) of the RTKL, 65 P.S. § 1305(a), authorizes the 

imposition of “a civil penalty of not more than $1,500 if an agency denied access to a public record 

in bad faith.” 
10

mandamus complaint on October 27, 2021, the County waited an additional 20 days 

before filing its November 16, 2021 Petition seeking nunc pro tunc relief. Simply 

put, the County was apprised of the need to appeal the OOR’s final determination 

on multiple occasions but neglected to take any action for several months.

We do not dispute the County’s assertion that the COVID pandemic affected 

the County’s ability to respond to RTKL requests. It is noteworthy, however, that 

the COVID pandemic was declared by the World Health Organization on March 11, 

2020,7 more than a year before Brock submitted her RTKL requests. Therefore, 

difficulties arising as a result of the COVID pandemic cannot be characterized as 

“unforeseeable and unavoidable events[.]” Criss, 781 A.2d at 1160. Furthermore,

the County presented no evidence demonstrating the number of RTKL requests it 

received during the relevant time period, or the staff available to respond thereto, 

that would have affected the County’s ability to file a timely appeal. We likewise 

do not dispute that responding to Brock’s RTKL requests will impose a substantial 

administrative burden on the County. The outcome of the County’s appeal to this 

Court will have no effect on that burden, however, as the County remains obligated 

to provide Brock the responsive records after redacting any information that is not 

subject to disclosure under the RTKL or other legal authority. As the OOR 

recognized in its final determination, the County could have requested additional 

time to respond to Brock’s RTKL requests, pursuant to Pennsylvania State System

of Higher Education v. Association of State College & University Faculties, 142 

A.3d 1023 (Pa. Cmwlth. 2016) (OOR may grant additional time to review records 

where agency identifies “a valid estimate of the number of documents being 

7

See https://time.com/5791661/who-coronavirus-pandemic-declaration/ (last viewed Sept.

27, 2022).
11

requested, the length of time require[d]” to review the records, and any difficulties 

involved with delivering documents kept in an electronic format). 

The County’s policy argument that the time limitations in Section 1302 of the 

RTKL should not apply because a political subdivision may be absolved of other 

“litigation errors” is also meritless. The appeal period in Section 1302 of the RTKL

is mandatory and unquestionably applies to the County. In the absence of any legal 

authority that would permit this Court to extend that period, we decline to do so. 

Regarding the attorney’s fees, litigation costs, and civil penalties sought by 

Brock, we note that attorney’s fees and litigation costs under Section 1304(a)(1) of 

the RTKL are authorized where a court grants access to a record and the original 

request for access was deemed denied. A record request is deemed denied under 

Section 901 of the RTKL where an agency fails to respond within five days of a 

written request for access. 65 P.S. § 67.901. Brock has not alleged that the County 

failed to respond to either RTKL request within five days. Rather, the County 

requested additional time to respond to her first RTKL request. Thereafter, the 

County requested prepayment of the costs associated with duplicating the requested 

records. There is no evidence to suggest that the County failed to respond to the 

second RTKL request within five days, such that it could be deemed denied. With 

respect to the civil penalties requested, Section 1305(a) only authorizes a civil 

penalty of not more than $1,500 where access to a record is denied in bad faith. The 

County’s request for prepayment of duplication costs does not constitute a denial of 

access to a public record, nor does it suggest bad faith on the County’s part, given 

the volume of records involved. Moreover, as the County indicates in its reply brief, 

although Brock sought attorney’s fees and civil penalties in her motion to quash and 
12

in her opposition to the Petition,8the trial court made no such award in its February 

7, 2022 orders granting the motion to quash and denying the Petition, and the trial 

court did not address the matter in its subsequent opinion filed on March 29, 2022. 

Brock did not appeal the trial court’s orders, and, therefore, to the extent Brock seeks 

this Court’s consideration of the trial court’s failure to address her request for 

attorney’s fees and penalties, the issue is waived. See Sateach v. Beaver Meadows 

Zoning Hearing Bd. of Appeals, 676 A.2d 747, 751 (Pa. Cmwlth. 1996) (appellee 

must file a cross-appeal to raise issues on appeal that are not raised by appellant; 

issues not raised by appellant or addressed in appellee’s cross-appeal are waived). 

Ultimately, as the County has not established a right to appeal the OOR’s July 

6, 2021 final determination nunc pro tunc, we affirm the trial court.9

____________________________

ELLEN CEISLER, Judge

8 Although Brock sought the imposition of “court costs” in her answer to the Petition, she 

did not request such costs in her motion to quash. R.R. at 25a, 32a.

9 Brock also argued that this Court should quash the County’s appeal to this Court, as it 

should have filed a separate appeal to each order issued by the trial court. Given our disposition 

herein, we decline to address this argument. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Montgomery County, :

Appellant :

:

v. : No. 228 C.D. 2022

:

Megan Brock :

O R D E R

AND NOW, this 28th day of September, 2022, the February 7, 2022 orders of 

the Court of Common Pleas of Montgomery County denying Montgomery County’s 

(County) petition for leave to file a nunc pro tunc appeal (Petition) and granting 

Megan Brock’s motion to quash the Petition are hereby AFFIRMED. 

____________________________

ELLEN CEISLER, Judge