Opinion

J. Markham v. T.W. Wolf, in his Official Capacity as Governor of the Com of PA

Court
Commonwealth Court of Pennsylvania
Filed
Oct 20, 2021
Status
Unpublished
On the bench
Wojcik
Cited by
0 cases
Authority
More cited than 33.1%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jessica Markham, Victoria Markham, :

Jesse Charles, Pennsylvania Homecare :

Association, United Cerebral Palsy of :

Pennsylvania, :

:

Petitioners :

:

v. : No. 176 M.D. 2015

: Argued: September 23, 2021

Thomas W. Wolf, in his Official :

Capacity as Governor of the :

Commonwealth of Pennsylvania, :

Department of Human Services, :

Office of Long Term Living, :

:

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge (P.)

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: October 20, 2021

Before the Court is the Application for Summary Relief (ASR) filed by

Thomas W. Wolf, in his Official Capacity as Governor of the Commonwealth of

Pennsylvania (Governor), the Department of Human Services (DHS), Office of

Long Term Living (collectively, Respondents) to the Petition for Review in the

Nature of a Complaint for Declaratory Judgment and Equitable Relief (PFR) filed

by Jessica Markham, Victoria Markham, Jesse Charles, Pennsylvania Homecare

Association, and United Cerebral Palsy of Pennsylvania (collectively, Petitioners),

following remand to this Court by the Pennsylvania Supreme Court in Markham v.

Wolf, 147 A.3d 1259 (Pa. Cmwlth. 2016) (Markham I), vacated and remanded, 190

A.3d 1175 (Pa. 2018) (Markham II). We grant Respondents’ ASR and dismiss

Petitioners’ PFR.

This Court has summarized the relevant history of this case as follows:

DHS administers the Commonwealth’s home care

services programs (HCSPs) and numerous Medicaid

waiver programs pursuant to the Attendant Care Services

Act (Act 150)[, Act of December 10, 1986, P.L. 1477, [No.

150,] 62 P.S. §§3051-3058]. Act 150 authorizes in-home

personal (non-medical) care provided by Direct Care

Workers (DCW[s]) to those individuals receiving in-home

services rather than services in an institutional setting

(Participant Model). Under the Participant Model,

participants direct the services received and recruit, hire,

and manage the DCWs who work for them.

Jessica Markham was a DCW employed to provide

attendant care services via the Participant Model to her

mother Victoria Markham (i.e., a Participant). See [PFR]

at 5, ¶¶6-7. Jesse Charles is also an HCSPs consumer (i.e.,

a Participant). See [PFR] at 6, ¶8.

In an effort to improve home care quality and DCW

working conditions by creating an employee organization,

on February 27, 2015, [the Governor] signed [Executive

Order 2015-05 (EO 2015-05), 4 Pa. Code §§7a.111-

7a.117,] entitled “Participant-Directed Home Care

Services,” which, in Section 4, authorized [the] “creation

each month of the DCW List, which includes the names

and addresses of all DCWs who, within the previous three

months, have been paid through a[n HCSP] that provides

participant-directed services.” [Markham II, 190 A.3d at

1179].

On April 6, 2015, based in part upon their concern

that “the purpose of the DCW List is to provide a list of

eligible voters to labor organizations interested in

2

organizing the [DCWs] so that they may be solicited” by

the prospective employee organization, [PFR] at 29, ¶51,

Petitioners filed an original jurisdiction action in this

Court alleging, inter alia, that [EO 2015-05] violates their

“privacy interest[s] in not having their personal contact

and other private information disclosed by the

Commonwealth to any labor unions without their

consent.” [PFR] at 56, ¶205; see also [PFR] at 55-58,

¶¶200-211. The parties filed cross-[ASRs].

This Court ruled, inter alia, that Section 4 of the

[EO 2015-05] was invalid, and enjoined the enforcement

thereof. See Markham [I]. Respondents appealed to the

Supreme Court. In Markham II, the Supreme Court

rejected the bases upon which this Court found the

executive order invalid, and remanded the case, stating:

Without a record or a lower court analysis of the

Executive Order and the application of the

balancing test contemplated by our recent decision

in Pennsylvania State Education Association v.

Department of Community and Economic

Development, 148 A.3d 142 (Pa. 2016) [(PSEA)],

we are compelled to remand this case to the

Commonwealth Court to address this issue in the

first instance, and to conduct further

proceedings if necessary.

Thus, for the reasons set forth above, we vacate the

Commonwealth Court’s determination that [EO

2015-05] is infirm. However, because the

Commonwealth Court did not reach

[Petitioners’] claim that [EO 2015-05’s]

distribution of the DCW List impacts upon

DCWs’ and [P]articipants’ privacy rights, we

remand the matter so that the Commonwealth Court

may address it.

Markham II, 190 A.3d at 1190 (emphasis added; footnote

omitted). Thus, the Supreme Court remanded the matter

for this Court to undertake the PSEA balancing test to

determine whether the public interest in releasing a

person’s name, address and other personal information

3

outweighs the person’s (i.e., DCWs and Participants)

interest in keeping the information private. Id.

However:

During the pendency of this action, the services

provided by Jessica Markham to . . . Victoria

Markham were changed from the [HCSPs] to a

Medicare program. Thus, while Jessica [Markham]

continues to provide in-home care to Victoria

[Markham], Jessica [Markham] is no longer a DCW

under the [HCSPs].

[PFR] at 6, ¶25.

On August 9, 2019, [James C.] Taylor, a DCW who

provides services to Petitioner Jesse Charles through a[n

HCSP], filed [a] Petition [to Intervene] in this matter,

arguing that because Petitioner Jessica Markham is no

longer a DCW and, thus, there is no DCW remaining in

this case, he should be permitted to intervene. See Petition

at 7, ¶¶26-27, at 10, ¶40. On August 23, 2019,

Respondents filed an Answer to Taylor’s Petition.

On September 6, 2019, this Court scheduled a

hearing on Taylor’s Petition for October 15, 2019. On

September 24, 2019, Respondents filed the Application to

Dismiss, stating that since Petitioner Jessica Markham is

no longer a DCW, the case is no longer active. On October

8, 2019, Petitioners filed an Answer to the Application to

Dismiss. On October 15, 2019, a hearing was held on the

Petition and argument was conducted on the

[Application].

Markham v. Wolf (Pa. Cmwlth., No. 176 M.D. 2015, filed October 24, 2019)

(Markham III), slip op. at 2-4 (emphasis in original).

Ultimately, following the hearing, this Court issued an order granting

the Petition to Intervene on the bases that “Taylor is a DCW that could have joined

this litigation at its inception” under Pa.R.Civ.P. 2327(3); “Taylor clearly has a

strong interest in the outcome of this litigation,” under Pa.R.Civ.P. 2327(4), “as the

4

only remaining issue is the privacy issue (i.e., whether the public interest in releasing

a DCW’s name and address and other personal information outweighs individual

privacy interests)”; and “Taylor is not disqualified by any of the three enumerated

grounds to refuse intervention” under Pa.R.Civ.P. 2329. Markham III, slip op. at 7.

Finally, following argument, we denied the Application to Dismiss because, in

remanding the matter, the Supreme Court recognized that “‘[o]ften, the DCW is a

[P]articipant’s relative living with the [P]articipant’” and “that the privacy rights of

both DCWs and Participants are at issue.” Id. at 8 (quoting and citing Markham II,

190 A.3d at 1177, 1190). See also PFR at 56, 57, ¶¶205, 206 (“[DCWs] have a

privacy interest in not having their personal contact and other private information

disclosed by the Commonwealth to any labor unions without their consent,” and

“[m]any [DCWs] reside in the same dwelling as the Participants for whom they

work” so that “[t]he release of information about a [DCW] is, in many instances, a

release of protected information about Participants.”).

On April 20, 2021, Respondents filed the instant ASR1 alleging, in

relevant part, that Jessica Markham and James C. Taylor “no longer have a live case

1

As this Court has recently explained:

Applications for summary relief filed in this Court’s original

jurisdiction are governed by Pennsylvania Rule of Appellate

Procedure 1532(b), Pa. R.A.P. 1532(b), which provides that “[a]t

any time after the filing of a petition for review . . . , the court may

enter judgment if the right of the applicant thereto is clear.” An

application for summary relief under Rule 1532(b) is evaluated

according to standard for a motion for summary judgment. Myers

v. Commonwealth, 128 A.3d 846, 849 (Pa. Cmwlth. 2015). A

motion for summary relief may only be granted when “the dispute

is legal rather than factual,” there is no genuine issue of material

fact, and the moving party is entitled to judgment as a matter of law.

Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1220

(Footnote continued on next page…)

5

or controversy against Respondents as it relates to the remaining claim that [Section]

4 of [EO 2015-052] violates their right to privacy” because neither are employed as

(Pa. Cmwlth. 2018) (emphasis added). The evidence is to be

reviewed in a light most favorable to the non-moving party. MFW

Wine Co. [v. Pennsylvania Liquor Control Board, 231 A.3d 50, 56

(Pa. Cmwlth. 2020) (Brobson, J.)]. “Even if the facts are

undisputed, the moving party has the burden of proving that its right

to relief is so clear as a matter of law that summary relief is

warranted.” Naylor v. Dep[artment] of Pub[lic] Welfare, 54 A.3d

429, 431 n.4 (Pa. Cmwlth. 2012). “Bold unsupported assertions of

conclusory accusations cannot create genuine issues of material

fact.” McCain v. Pennbank, 549 A.2d 1311, 1313-14 (Pa. Super.

1988). “Summary [relief] may be entered only in cases that are clear

and free from doubt.” Id. at 1313.

Delaware Riverkeeper Network v. Department of Environmental Protection (Pa. Cmwlth., No. 525

M.D. 2017, filed August 3, 2021), slip op. at 13 (footnote omitted); see also Pa. R.A.P. 126(b)

(“As used in this rule, ‘non-precedential decision’ refers to . . . an unreported memorandum

opinion of the Commonwealth Court filed after January 15, 2008. [] Non-precedential decisions

. . . may be cited for their persuasive value.”).

2

Section 4(a) and (c) of EO 2015-05 states:

a. The Secretary [of Human Services (Secretary)] shall compile a

list each month of the names and addresses of all [DCWs] (DCW

List) who, within the previous 3 months, have been paid through a[n

HCSP] that provides participant-directed services. The DCW List

shall specify every program through which each [DCW] was paid.

However, the DCW List may not include the name of any

participant, any designation that a [DCW] is a relative of a

participant, or any designation that the [DCW’s] home address is the

same as a participant’s address.

***

c. Upon a showing made to the Secretary by an employee

organization [with a primary purpose of DCW representation in

employment relations] described in subsection (b) that at least 50

[DCWs] support the organization’s petition to provide

(Footnote continued on next page…)

6

DCWs subject to its provisions so that their claims in this regard are now moot. ASR

at 10-11, 13-15, ¶¶ 20-22, 25-27.3 Likewise, Respondents assert that “there is no

live case or controversy, as it relates to this privacy claim, between Victoria

Markham, Jesse Charles, Pennsylvania Home Care Association, and United

Cerebral Palsy of Pennsylvania and Respondents.” Id. at 11, ¶21.

In relevant part, the Supreme Court’s opinion remanding the matter to

this Court states:

[Petitioners] claim [EO 2015-05] violates the privacy

rights of DCWs and [P]articipants. Specifically,

[Petitioners] assert that [EO 2015-05] impermissibly

allows the Commonwealth to distribute the name, home

address, telephone numbers, and email addresses of

20,000 DCWs to any qualified representative candidate

through the DCW List, citing our recent decision in

[PSEA4]. . . . While [Respondents] claim to have taken

representation, the Secretary shall provide to the organization,

within 7 days, the most recent DCW List, and, for an additional 6

months thereafter, upon request shall supply subsequent monthly

lists.

4 Pa. Code §7a.114(a), (c). See also Section 1 of EO 2015-05, 4 Pa. Code §7a.111 (“[DCW] List-

A monthly list . . . of the names and addresses of all [DCWs] who have within the previous 3

months been paid through a [HCSP.] The list shall specify the program through which each

[DCW] is paid, but nothing that would identify the name of any participant.”).

3

It is undisputed that Markham and Taylor, the only DCW parties to this action, are no

longer working as DCWs subject to the provisions of Section 4 of EO 2015-05. See, e.g., PFR at

6, ¶25; Petitioners’ Answer to Respondents’ Application for Summary Relief at 1.

4

Specifically, Count IV of the PFR alleges, in pertinent part:

Because [EO 2015-05] conflicts with the confidential[ity]

provisions of the Attendant Care Waiver and the Aging Waiver and

interferes with the privacy interests of [DCWs] and their Participant

(Footnote continued on next page…)

7

steps to comply with PSEA, the record does not reflect

post-PSEA modifications to the processes employed by

[EO 2015-05]. Without a record or a lower court analysis

of [EO 2015-05] and the application of the balancing test

contemplated by our recent decision in PSEA, we are

compelled to remand this case to the Commonwealth

Court to address this issue in the first instance, and to

conduct further proceedings if necessary.

Markham II, 190 A.3d at 1189-90 (footnote omitted and emphasis added).

With respect to the Supreme Court’s remand instructions, this Court

recently observed:

Pa. R.A.P. 2591(a) states, in pertinent part: “On

remand of the record the . . . government unit below shall

proceed in accordance with the judgment or other order of

the appellate court[.]” See also Section 706 of the Judicial

Code, 42 Pa. C.S. §706 (“An appellate court may affirm

[or] vacate . . . any order brought before it for review, and

may remand the matter and . . . require the entry of such

appropriate order . . . as may be just under the

circumstances.”).

As this Court has explained:

“[I]t has long been the law in Pennsylvania that

following remand, a lower court is permitted to

proceed only in accordance with the remand order.”

employers, [EO 2015-05] conflicts with existing law and should be

enjoined.

PFR at 58, ¶211 (footnote omitted). See also PFR at 56, ¶205 (“[DCWs] have a privacy interest

in not having their personal contact and other private information disclosed by the Commonwealth

to any labor unions without their consent.”); id. at 57, ¶206 (“Many [DCWs] reside in the same

dwelling as the Pa[r]ticipants for whom they work. The release of information about a [DCW] is,

in many instances, a release of protected information about Participants.”); id. at 59-60, ¶218

(“[T]he Attendant Care Waiver Application and the Aging Waiver Application both require

entities to protect and provide appropriate safeguards for the records of all Participants and

[DCWs]; thus, [EO 2015-05’s] mandate that the Commonwealth collect and create lists of this

private information, and presumably share it with labor organizations without the [DCWs’]

consent, is contrary to existing law.”).

8

Commonwealth v. Sepulveda, [144 A.3d 1270, 1280

n.19 (Pa. 2016)]. In Levy v. Senate of Pennsylvania,

94 A.3d 436 (Pa. Cmwlth. [2014)], which the

Supreme Court cited with approval in Sepulveda,

this Court explained: “Where a case is remanded

for a specific and limited purpose, ‘issues not

encompassed within the remand order’ may not be

decided on remand. A remand does not permit a

litigant a ‘proverbial second bite at the apple.’” [Id.]

at 442 (quoting In re Indep[endent] Sch[ool]

Dist[rict] Consisting of the Borough of Wheatland,

912 A.2d 903, 908 (Pa. Cmwlth. 2006)).

Marshall v. Commonwealth, 197 A.3d 294, 306 (Pa.

Cmwlth. 2018), aff’d, 214 A.3d 1239 (Pa. 2019).

Accordingly, we will not consider any issues that have

been raised that are beyond the confines of our remand

order herein.

Marshall v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 1115

C.D. 2019, filed October 8, 2020), slip op. at 9-10.

Accordingly, on remand, we are limited to only considering the privacy

claims of former DCWs Jessica Markham and James C. Taylor, and Participants

Victoria Markham and Jesse Charles. Additionally, it must be noted that the

Participants’ privacy interest is secondary to that of the DCWs because, as the

Supreme Court explained, “[o]ften the DCW is a participant’s relative living with

the participant.” 190 A.3d at 1177.5 Nevertheless, as indicated above, Section 4(a)

of EO 2015-05 specifically provides that “the DCW List may not include the name

of any participant, any designation that a [DCW] is a relative of a participant, or any

designation that the [DCW’s] home address is the same as a participant’s address.”

5

See also PFR at 57, ¶206 (“Many [DCWs] reside in the same dwelling as the Pa[r]ticipants

for whom they work. The release of information about a [DCW] is, in many instances, a release

of protected information about Participants.”); id. at 60-61, ¶220(d) (“Petitioner Jessica Markham,

a [DCW], will be immediately and irreparably harmed if the Commonwealth discloses her name

and confidential information to labor organizations without [her] consent.”).

9

4 Pa. Code §7a.114(a) (emphasis added); see also Section 1 of EO 2015-05, 4

Pa. Code §7a.111 (“The list shall specify the program through which each [DCW]

is paid, but nothing that would identify the name of any participant.”) (emphasis

added).

In considering Respondents’ ASR claim that Petitioners’ request for

declaratory and injunctive relief is moot, this Court has observed:

Petitions for declaratory judgments are governed by

the provisions of the Declaratory Judgments Act, 42

Pa. C.S. §§7531-7541. Although the Declaratory

Judgments Act is to be liberally construed, one limitation

on a court’s ability to issue a declaratory judgment is that

the issues involved must be ripe for judicial determination,

meaning that there must be the presence of an actual case

or controversy. Thus, the Declaratory Judgments Act

requires a petition praying for declaratory relief to state an

actual controversy between the petitioner and the named

respondent.

Declaratory judgments are not obtainable as a

matter of right. Rather, whether a court should exercise

jurisdiction over a declaratory judgment proceeding is a

matter of sound judicial discretion. Thus, the granting of

a petition for a declaratory judgment is a matter lying

within the sound discretion of a court of original

jurisdiction. As the Pennsylvania Supreme Court has

stated:

The presence of antagonistic claims indicating

imminent and inevitable litigation coupled with a

clear manifestation that the declaration sought will

be of practical help in ending the controversy are

essential to the granting of relief by way of

declaratory judgment. . . .

Only where there is a real controversy may a

party obtain a declaratory judgment.

10

A declaratory judgment must not be

employed to determine rights in anticipation of

events which may never occur or for consideration

of moot cases or as a medium for the rendition of an

advisory opinion which may prove to be purely

academic.

Brouillette v. Wolf, 213 A.3d 341, 357-58 (Pa. Cmwlth. 2019) (citations omitted).

Additionally, as the Pennsylvania Supreme Court has observed:

[C]ases presenting mootness problems involve litigants

who clearly had standing to sue at the outset of the

litigation. The problems arise from events occurring after

the lawsuit has gotten under way-changes in the facts or in

the law-which allegedly deprive the litigant of the

necessary stake in the outcome. The mootness doctrine

requires that “an actual controversy must be extant at all

stages of review, not merely at the time the complaint is

filed.”

In re Gross, 382 A.2d 116, 119 (Pa. 1978) (citation omitted)

A federal court of appeals has explained:

The touchstone of the mootness inquiry is whether the

controversy continues to “touch [] the legal relations of

parties having adverse legal interests” in the outcome of

the case. DeFunis v. Odegaard, 416 U.S. 312, 317

[(1974)] (per curiam) (quoting Aetna Life Ins[urance] Co.

v. Haworth, 300 U.S. 227, 240-41 [(1937)]). This “legal

interest” must be more than simply the satisfaction of a

declaration that a person was wronged. Ashcroft v. Mattis,

431 U.S. 171, 172-73 [(1977)] (per curiam) (holding that

a claim for declaratory relief is moot when no “present

right” is involved and the primary interest is the emotional

satisfaction from a favorable ruling).

It is well established that what makes a declaratory

judgment action “a proper judicial resolution of a ‘case or

controversy’ rather than an advisory opinion is [] the

settling of some dispute which affects the behavior of the

defendant toward the plaintiff.” Hewitt v. Helms, 482 U.S.

755, 761 [(1987)]; see also Rhodes v. Stewart, 488 U.S. 1,

11

4 [(1988)] (per curiam) (explaining that as the plaintiffs

are no longer in prison, their case against prison officials

is moot). Hence, this court has explained that a “plaintiff

cannot maintain a declaratory or injunctive action unless

he or she can demonstrate a good chance of being likewise

injured [by the defendant] in the future.” Facio v. Jones,

929 F.2d 541, 544 (10th Cir. 1991).

Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir. 1997) (citation omitted).6

See also Chasan v. Platt, 244 A.3d 73, 84 (Pa. Cmwlth. 2020), appeal denied, 253

A.3d 679 (Pa. 2021) (“At its core, the purpose of declaratory relief is to address an

imminent dispute or actual controversy. The judicial acts that [the l]awyer

complains of are in the past, such that the declaration would not aid in resolution of

a current or imminent dispute.”).

Moreover, a Commonwealth party shall “remain immune from suit

except as the General Assembly shall specifically waive the immunity.” 1 Pa. C.S.

§2310. “Sovereign immunity, however, will not bar certain suits in equity.”

Stackhouse v. Pennsylvania State Police, 892 A.2d 54, 59 (Pa. Cmwlth. 2006).

Indeed, as the Pennsylvania Supreme Court has explained:

The distinction is clear between suits against the

Commonwealth which are within the rule of its immunity

and suits to restrain officers of the Commonwealth from

enforcing the provisions of a statute claimed to be

unconstitutional. Suits which seek to compel affirmative

action on the part of state officials or to obtain money

damages or to recover property from the Commonwealth

are within the rule of immunity; suits which simply seek to

restrain state officials from performing affirmative acts

are not within the rule of immunity.

6

See, e.g., Cole v. Pennsylvania Department of Environmental Protection, 257 A.3d 805

813 (Pa. Cmwlth. 2021) (stating that although the opinions of lower federal courts are not binding

on this Court, “such decisions in factually similar cases with persuasive legal analysis may inform

our disposition of the matter before us”).

12

Fawber v. Cohen, 532 A.2d 429, 433-34 (Pa. 1987) (citations omitted and emphasis

added). Thus, “the General Assembly has not waived immunity for equitable claims

seeking affirmative action by way of injunctive relief” under the Sovereign

Immunity Act. Bonsavage v. Borough of Warrior Run, 676 A.2d 1330, 1331-32 (Pa.

Cmwlth. 1996).

In this case, Petitioners seek the following declaratory and injunctive

relief:

WHEREFORE, Petitioners respectfully request

that this Honorable Court provide declaratory and

equitable relief against [Respondents] as follows:

(a) declaring that [EO 2015-05] is unenforceable as an

unauthorized exercise of legislative power;

(b) declaring that [EO 2015-05] directly conflicts and

is contrary to the [Pennsylvania Labor Relations Act7]

(and the [Public Employe Relations Act8], to the extent

applicable);

(c) declaring that [EO 2015-05] is inconsistent with the

[HCSPs];

(d) granting a permanent injunction in Petitioners’

favor and against [the Governor] prohibiting any action by

[the Governor], or any executive agency, department or

contractor under his jurisdiction, in furtherance of [EO

2015-05];

(e) issuing a directive to Respondents [Governor] and

[DHS] to effect a return of all consumer and [DCW]

related personal information disseminated pursuant to

[Section 4 of EO 2015-05] including, but not limited to,

names and addresses.

7

Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§211.1-211.15.

8

Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.101-1101.2301.

13

PFR at 67-68.

However, even if we were to determine that the former DCWs’ and

Participants’ privacy rights were violated under the balancing test outlined in PSEA,9

we cannot grant the foregoing requested equitable relief. The privacy right

violations alleged herein are solely and exclusively based upon Respondents’ past

disclosure of the former DCWs’ personal information under Section 4 of EO 2015-

05. No current DCW is a party to this action, so there is no present disclosure of this

information relating to any of the parties to this action. Additionally, there is no

allegation or indication that any DCW is currently residing with Victoria Markham

or Jesse Charles thereby providing a basis upon which their personal information

would be currently disclosed without their consent.

Moreover, contrary to Petitioners’ assertion, none of the exceptions to

the mootness doctrine10 are present in this case. Like James C. Taylor, any current

9

As the Supreme Court explained:

In [PSEA], the [PSEA] sought an injunction to prevent the

release of the home addresses of public school employees under the

[Right-to-Know Law, Act of February 14, 2008, P.L. 6, 65 P.S.

§§67.101-67.3104]. After exploring the right to privacy under the

Pennsylvania Constitution, this Court concluded that our organic

charter protects a person’s address and other personal information

from disclosure by the government unless the public interest in

dissemination outweighs the privacy interest. After weighing what

we deemed to be the strong privacy interests in protecting home

addresses from disclosure against the negligible public benefit in

disclosure, the Court found the balancing of these interests

precluded disclosure of the employees’ home address.

Markham II, 190 A.3d at 1190.

10

The Supreme Court has stated: “We have reviewed moot matters, in our discretion,

when the issue presented is one of great public importance or is one that is capable of repetition

(Footnote continued on next page…)

14

DCW could have sought to intervene to obtain the requested equitable relief in this

matter or could have filed his or her own PFR to protect his or her own privacy

interest under PSEA, so the privacy issue raised herein, although important, is not

one that is capable of repetition yet is likely to evade judicial review.

Finally, as outlined above, we may not grant the injunctive relief

requiring affirmative action by the Governor and DHS. In sum, based on the change

in circumstances of this matter and the applicable law, we cannot grant the

declaratory or injunctive relief that has been requested in this case.11

Accordingly, Respondents’ ASR is granted, and Petitioners’ PFR

seeking declaratory and injunctive relief is dismissed.

MICHAEL H. WOJCIK, Judge

President Judge Brobson did not participate in the decision of this case.

Judge Crompton did not participate in the decision of this case.

yet evading review.” Association of Pennsylvania State College and University Faculties v.

Pennsylvania Labor Relations Board, 8 A.3d 300, 305 (Pa. 2010).

11

It should be noted that at the time that we filed our opinion in Markham III granting

James C. Taylor’s Petition to intervene in this matter, he was a current DCW subject to the

disclosure requirements of Section 4 of EO 2015-05. Thus, our denial of the Application in that

memorandum opinion is not inconsistent with our disposition in the instant memorandum opinion

because there are no current DCWs who are a party to this action and subject to the disclosure

requirements of Section 4 of EO 2015-05 at this time.

15

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jessica Markham, Victoria Markham, :

Jesse Charles, Pennsylvania Homecare :

Association, United Cerebral Palsy of :

Pennsylvania, :

:

Petitioners :

:

v. : No. 176 M.D. 2015

:

Thomas W. Wolf, in his Official :

Capacity as Governor of the :

Commonwealth of Pennsylvania, :

Department of Human Services, :

Office of Long Term Living, :

:

Respondents :

ORDER

AND NOW, this 20th day of October, 2021, the Application for

Summary Relief filed by the above-named Respondents is GRANTED, and the

Petition for Review in the Nature of a Complaint for Declaratory and Injunctive

Relief is DISMISSED.

__________________________________

MICHAEL H. WOJCIK, Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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