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