Opinion
No. 672 M.D. 2012
04-01-2013
C. Harper Kia, Petitioner v. Commonwealth of Pennsylvania; Department of State; Bureau of Professional and Occupational Affairs; State Board of Vehicle Manufacturers, Dealers and Salespersons, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Before this Court are the preliminary objections of the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) (collectively, the Commonwealth) to the complaint filed by C. Harper Kia (Kia). Upon review, we dismiss Kia's complaint with prejudice.
On November 19, 2012, Kia filed the instant complaint for declaratory and injunctive relief, alleging that the Board violated the Sunshine Act when it conducted meetings and decided to dismiss Kia's protest and later deny reconsideration in the matter of C. Harper Kia v. Kia Motors America, Inc., File No. 12-60-01798, Docket No. 0422-60-12. According to the complaint and attached exhibits, Exhibits A through D, the Board issued a memorandum order dismissing Kia's protest on June 14, 2012, and an order denying Kia's motion for reconsideration on July 11, 2012. Thereafter, Kia's counsel submitted a request to the Board under the Right to Know Law (RTKL), seeking documents related to the Board's meetings in order to verify whether the Board complied with the Sunshine Act when it decided to issue its orders. On October 16, 2012, Kia received the responsive documents from the Board's open records officer and the Board's prothonotary certified the documents as the legal custodian of the records. (Complaint ¶¶ 7-10, Exhibit C.)
Kia appealed the Board's orders to this Court. C. Harper Kia v. Department of State, The State Board of Vehicle Manufacturers, Dealers and Salespersons, (Pa. Cmwlth., No. 1358 C.D. 2012, filed March 28, 2013).
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
In its complaint, Kia avers that the October 16, 2012 records indicate that the Board violated various provisions of the Sunshine Act. Specifically, Kia alleges that the Board contravened the Sunshine Act in the following particulars: the Board minutes do not document that the meetings were open to the public; there are no records listing the names of the citizens who appeared at the meetings; the Board did not provide public notice three days in advance of the meetings; and the members of the public did not have a reasonable opportunity to comment at the meetings. Based upon these averments, Kia seeks an injunction prohibiting the Commonwealth from enforcing the Board's June 14, 2012 memorandum order and its July 11, 2012 order denying reconsideration. Alternatively, Kia requests a decree declaring the Board's orders invalid. (Complaint ¶¶ 11-13.)
See sections 704, 705, 706, 709, 710.1 of the Sunshine Act, 65 Pa. C.S. §§704 (Open meetings), 705 (Recording of votes), 706 (Minutes of meetings, public records and recording of meetings), 709 (Public notice), 710.1 (Public participation).
On December 17, 2012, the Commonwealth filed preliminary objections, contending that Kia's complaint was filed untimely under section 713 of the Sunshine Act, 65 Pa. C.S. §713. The Commonwealth also asserts that Kia has an adequate statutory remedy, noting that Kia is presently challenging the Board's orders on direct appeal to this Court. Kia filed a response to the Commonwealth's preliminary objections on January 14, 2013. Both parties subsequently filed briefs in support of their positions, and the Commonwealth's preliminary objections are now ripe for disposition.
When ruling upon preliminary objections, we must accept as true all well-pleaded allegations of material fact as well as all reasonable inferences deducible therefrom. Envirotest Partners v. Department of Transportation, 664 A.2d 208 (Pa. Cmwlth. 1995). However, this Court is not required to accept as true any conclusions of law or expressions of opinion. Id.
The Commonwealth first contends that Kia filed its complaint more than 30 days after discovering the Board's alleged violations of the Sunshine Act, and, therefore, Kia's complaint should be dismissed.
In pertinent part, section 713 of the Sunshine Act provides that "[a] legal challenge under this chapter shall be filed within 30 days from the date of a meeting which is open, or within 30 days from the discovery of any action that occurred at a meeting which was not open at which this chapter was violated," 65 Pa. C.S. §713. If a plaintiff fails to file a legal challenge within section 713's time stricture, the suit will be dismissed for lack of jurisdiction. Belitskus v. Hamlin Township, 764 A.2d 669 (Pa. Cmwlth. 2000).
Where, as here, a plaintiff alleges that the meeting was not open to the public, a plaintiff is "obligated to bring the action within [30] days of his discovery of the alleged improprieties." Id. at 670. In this case, the averments in Kia's complaint and attached exhibits establish that Kia's counsel requested documents from the Board under the RTKL in order to ascertain whether the Board violated the Sunshine Act, and that the Board's open records officer provided Kia's counsel with the requested records on October 16, 2012. Kia does not make any averments or arguments to the contrary. Consequently, Kia had 30 days or until November 15, 2012, to commence its legal challenge by filing either a complaint or a writ of summons. Tom Mistick & Sons, Inc. v. City of Pittsburgh, 567 A.2d 1107 (Pa. Cmwlth. 1989). However, Kia filed its complaint on November 19, 2012 - four days beyond the mandatory deadline.
Although this Court has yet to define the word "discovery" in section 713, the intermediate appellate courts of California have held that the term discovery is not synonymous with subjective, actual knowledge. General Bedding Corporation v. Echevarria, 947 F.2d 1395 (9th Cir. 1991) (applying California law); Quick v. Pearson, 186 Cal. App. 4th 371 (Cal. Ct. App. 2d Dist. 2010); Weir v. Snow, 210 Cal. App. 2d 283 (Cal. Ct. App. 2d Dist. 1962). Instead, the definition of "discovery" is broader and includes the concepts of presumed and constructive knowledge. Echevarria; Quick; Weir. Therefore, when a plaintiff has the opportunity to obtain knowledge of an impropriety from sources open to his investigation (such as public records or corporation books), the plaintiff is presumed to have "discovered" the impropriety as of the date the plaintiff has access to the open records. Echevarria; Quick; Weir. See Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex. 1981) ("A person is charged with constructive notice of the actual knowledge that could have been acquired by examining public records."); Saint John's University, New York v. Bolton, 757 F. Supp. 2d 144, 192 (E.D.N.Y 2010) (concerning equitable tolling of a statute of limitations: "New York courts impute knowledge of the contents of a public record to a party when the party has actual knowledge of facts giving it reason to believe that it has an interest in the contents of the records"). See also Belitskus, 764 A.2d at 670-71 (concluding that the date of a newspaper article referenced in a complaint that described the alleged impropriety was the date on which the plaintiff discovered the impropriety for purposes of section 713; through necessary implication, this Court presumed that the plaintiff had knowledge of the newspaper's contents on the date of its publication).
In Tom Mistick & Sons, Inc., this Court concluded that the filing of a bare-bones, writ of summons was sufficient to commence a legal challenge under the Sunshine Act, in significant part, because "it may prove impossible, at times, for a challenger to secure, within 30 days, all of the information necessary to file a complaint or otherwise delineate all grounds for the challenge with sufficient specificity." Id. at 1110. --------
Perhaps realizing that the face of its complaint establishes that the instant action was filed untimely, Kia attaches additional exhibits to its response in opposition to the Commonwealth's preliminary objections. Specifically, Kia asserts that Exhibits E through Q, which consist of correspondence from and to the Board's open records officer, prove that Kia's counsel received an email from the Board's prothonotary attaching the certification of records on October 16, 2012, and that Kia did not obtain its requested certification via the mail until October 23rd or October 24th. For this reason, Kia maintains that October 23rd or October 24th should constitute the start date for the 30-day time limit because Kia's counsel could not have discovered the purported Sunshine Act violations prior to receiving the certification through the mail.
Kia's arguments are belied by the record. First, Exhibits M and Q contain admissions from Kia's counsel that he received all of the documents from the Board's open records officer as early as October 12, 2012. Second, Exhibit P and Exhibit C confirm that, on October 16th, the Board's prothonotary faxed and e-mailed to Kia's counsel a signed certification attesting to the authenticity and completeness of the records she provided. The fact that Kia's counsel subsequently requested the certification to be mailed and did not receive the certification in the mail until October 23rd or October 24th in no way hindered counsel's ability to discover the alleged Sunshine Act violations from the complete set of documents already in his possession as early as October 12th and no later than October 16th. Therefore, we conclude that Kia commenced an untimely legal challenge under section 713 of the Sunshine Act and that this Court lacks jurisdiction to entertain the merits of Kia's Sunshine Act claims.
Having concluded that Kia's complaint was filed untimely under Section 713 of the Sunshine Act, we need not address the Commonwealth's preliminary objection asserting that Kia has an adequate statutory remedy. However, we note that in this case Kia seeks to invalidate and/or enjoin the Board's orders based upon alleged Sunshine Act violations, and that Kia is presently challenging the merits of the Board's orders on direct appeal in C. Harper Kia v. Department of State, The State Board of Vehicle Manufacturers, Dealers and Salspersons, (Pa. Cmwlth., No. 1358 C.D. 2012, filed March 28, 2013).
For the above-stated reasons, we sustain the Commonwealth's preliminary objection concerning the timeliness of Kia's complaint and dismiss Kia's complaint with prejudice. Due to our disposition, we dismiss the Commonwealth's second preliminary objection regarding the availability of an adequate statutory remedy as moot.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 1st day of April, 2013, the preliminary objection of the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, State Board of Vehicle Manufacturers, Dealers and Salespersons related to the timeliness of the complaint filed by C. Harper Kia is SUSTAINED, and the complaint is DISMISSED with prejudice. The Commonwealth's preliminary objection asserting the availability of an adequate statutory remedy is DISMISSED as moot.
/s/_________
PATRICIA A. McCULLOUGH, Judge