Scott v. Delaware Valley Regional Planning Commission

DISSENTING OPINION BY

Judge McCullough.

I must respectfully dissent from the Majority’s decision not to adhere to the doctrine of collateral estoppel in this case and thus preclude the Delaware Valley Regional Planning Commission (“DVRPC”) from contending that it is not a Commonwealth agency subject to the Right to Know Law (RTKL), 1 despite a prior determination by the Office of Open Records (OOR) to the contrary in Iverson v. Delaware Valley Regional Planning Commission, AP 2011-0572, filed July 19, 2011. It is noted that the DVRPC did not appeal Iverson to this Court although it had the opportunity to do so. I dissent because I believe the Majority has confused the doctrine of collateral estoppel with the doctrine of stare decisis.

The Majority states: “[i]f Iverson had been a decision of the Court then the Court might be persuaded by Scott’s argument [that collateral estoppel precludes the DVRPC from contending that it is not subject to the RTKL], However, decisions of administrative boards or tribunals have no precedential value on this Court....” Scott v. Delaware Valley Regional Planning Commission and Delaware Valley Regional Planning Commission v. Scott, 56 A.3d 40, 44 (Pa.Cmwlth.2012) (emphasis added). It is without dispute that “decisions” of administrative boards or tribunals are not stare decisis with respect to an appellate court. However, that is not the question before us. Rather, we are obliged to decide whether an “issue” which has been previously “determined” collaterally estops a party in that proceeding from litigating it in a subsequent proceeding which is also before the same administrative board (the OOR). 2 Thus, I believe the issue is simply whether the doctrine of collateral estoppel is to be applied so as to preclude DVRPC from claiming it is not subject to the RTKL in proceedings before the OOR when the OOR has previously *49 determined that the DVRPC is subject to the RTKL.

This Court has established ample precedent to apply the doctrine of collateral estoppel in this case and I believe that the Majority’s failure to do so is at odds with that precedent. In Irizarry v. Office of General Counsel, 934 A.2d 143 (Pa.Cmwlth.2007), we affirmed the determination by the Office of General Counsel to give collateral estoppel effect to an arbitrator’s decision in a labor grievance to a subsequent claim by a terminated Pennsylvania Department of Transportation employee for counsel fees incurred in defending a private rights action in federal court.

In Day v. Civil Service Commission of the Borough of Carlisle, 948 A.2d 900 (Pa.Cmwlth.2008), this Court affirmed a trial court’s decision to apply collateral estoppel to issues previously litigated in federal court to a subsequent local civil service commission proceeding. In neither case were the determinations to apply collateral estoppel of “precedential value” to the Court. However, in both cases, the Court recognized the need to preclude re-litigation of issues previously determined because the test for application of collateral estoppel is: (1) identity of the issues(s) to be decided in the second proceeding; (2) the existence of a final judgment in the prior proceeding; (3) the party against whom collateral estoppel is to be asserted was a party or in privity with a party in the prior proceeding; and (4) the party against whom collateral estoppel is to be asserted had full and fair opportunity to previously litigate the issue. Irizarry, 934 A.2d at 150-151 .

Irizarry and Day are particularly noteworthy in that in both cases the subsequent proceeding was before an adjudicative body different from the previous one. Hence, not only were the prior determination not precedent on this Court, they were not precedent upon the subsequent tribunals. However, in both instances this Court recognized and adhered to the doctrine of collateral estoppel because the four-prong test for its application was met.

I believe that the four-prong test for collateral estoppel clearly applies in this case as well. The issue of whether the DVRPC is subject to the RTKL was determined by the OOR in Iverson and the DVRPC did not appeal the OOR’s determination. The DVRPC is the relevant party in both proceedings and there is no assertion that it did not have a full and fair opportunity to previously litigate the applicability of the RTKL to it. Thus, the doctrine of collateral estoppel should bar the DVRPC from denying that it is subject to the RTKL. Given that the DVRPC is estopped from challenging the jurisdiction of the OOR, the Court’s analysis should properly focus upon the substance of the OOR’s determination and discussion of the challenges to OOR’s decision with respect to various records.

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

. Unlike the Majority, I believe that the OOR’s final determination reflects its correct conclusion that, because it had adjudicated the issue of whether DVRPC is a Commonwealth agency subject to the RTKL status in a prior proceeding involving DVRPC, DVRPC could not re-litigate that issue before the OOR in these subsequent proceedings. (Final Determination, July 20, 2011, at 5.) The OOR did not otherwise address that issue in the adjudication presently before us. Consequently, the issue on appeal is not whether the OOR’s determination is binding on this Court, but whether the OOR properly observed that it was collaterally estopped from reconsidering DVRPC’s status. Under these circumstances, discussion of equivalent subject matter jurisdiction is irrelevant.