IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lisa J. Barr : : v. : No. 408 C.D. 2013 : Argued: September 9, 2013 Tom LaMont, Craig Reimel, Sean : Granahan, Tony Pickett, Julianne : Skinner, Todd Chamberlain, and Randy : Schuster in their official capacity as : members of the Montrose Borough : Council and John Wilson in his official : capacity as Mayor of the Borough of : Montrose, Pennsylvania, : Appellants : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: October 4, 2013 Appellants Tom LaMont, Craig Reimel, Sean Granahan, Tony Pickett, Julianne Skinner, Todd Chamberlain, and Randy Schuster, in their official capacity as members of the Montrose Borough Council (Borough Council), and John Wilson, in his official capacity as Mayor of the Borough of Montrose, Pennsylvania, (collectively, the Borough), appeal from an order of the Court of Common Pleas of Susquehanna County (trial court), dated February 13, 2013,

which granted the amended petition for injunctive relief filed by Appellee Lisa J. Barr. 1 In granting the injunctive relief, the trial court struck rule 12 of the Borough s Amended Rules of Conduct for Public Meetings (Amended Rule 12) and permanently enjoined the Borough from enforcing Amended Rule 12. Amended Rule 12 provides that [a]ll recording devices (video, audio, digital) shall be turned off prior to commencement of the [Borough Council] meeting and at adjournment of the meeting. (Reproduced Record (R.R.) at 51.) We now vacate and remand. At a public meeting held on February 14, 2012, the Borough Council adopted Rules of Conduct for Public Meetings (Rules), purportedly for the purpose of maintaining order during the course of its public meetings. Thereafter, Barr, claiming status as a journalist, filed an equity action in the trial court, alleging that several of the Borough s Rules, specifically Rules 3, 4, 5, 6, 7, 11, 12, and 13, violated her constitutional rights under the free speech provisions of the United States and Pennsylvania Constitutions and also violated Section 711 of the Sunshine Act, 65 Pa. C.S. 711. 2 She sought equitable relief in the form of a temporary and permanent injunction. On February 27, 2012, during settlement discussions conducted in conjunction with a hearing scheduled for that same date, the parties reached an agreement on a stipulation. The stipulation was reduced to writing, signed by the in this matter. 1 The American Civil Liberties Union of Pennsylvania (ACLU-Pa) filed an amicus brief 2 Section 711 of the Sunshine Act provides that persons attending a meeting of a municipality s governing body shall have the right to use recording devices to record all the proceeding. 2

parties and counsel, and entered on the record. The stipulation addressed the manner in which the public and press could record (via video or audio) meetings of the Borough Council by setting forth rules regarding the configuration of chairs at the meeting, position of mounted equipment, use of small hand-held audio and camera equipment or other recording devices, and recording while standing or sitting. (R.R. at 40-41.) It also provided that (Id.) [t]he existing rules of conduct are in effect until and unless new rules of conduct are passed by [the Borough] Council at the next scheduled meeting to take place on Monday, March 5, 2012. If the new rules of conduct are passed in accordance with this stipulation[, the Borough s Counsel] will provide Counsel for [Barr] with a copy of the revised rules within three business days. Counsel for [Barr] upon receipt of the [Borough s] revised rules of conduct will see to it that [Barr s] claim will be withdrawn, with prejudice, within ten days of receipt. At its next meeting, the Borough Council passed its Amended Rules of Conduct for Public Meetings (Amended Rules), which included the new rules stipulated to by the parties. The Amended Rules, however, also included (renumbered) previously existing Rules not challenged by Barr in the litigation, including Amended Rule 12 (original Rule 10). (See R.R. at 3-4, 51-52.) Barr took the position that the Amended Rules went beyond what was stipulated by the parties, and she refused to withdraw her action. Instead, Barr filed a request for injunctive relief. Barr did not challenge Amended Rule 12 or the original Rule 10 in any of her pleadings or requests for injunctive relief. The Borough responded by filing a petition to enforce settlement. 3

Following a hearing on February 5, 2013, the trial court determined Amended Rule 12 to be unconstitutional and granted Barr s request for injunctive relief, thereby enjoining the Borough from enforcing Amended Rule 12. The trial court did not rule on the Borough s motion to enforce settlement. On appeal to this Court, 3 the Borough argues that the trial court committed an error of law when it determined that Amended Rule 12 is unconstitutional. The Borough also argues that the trial court committed an error of law when it granted a permanent injunction without Barr having established the irreparable harm necessary for the issuance of an injunction. Finally, the Borough argues that the trial court erred in not ruling on the Borough s petition to enforce settlement and in ruling on Barr s claim as to Amended Rule 12, because Barr failed to properly raise the claim and the Borough complied with the terms of settlement as set forth in the stipulation. First, we will consider the Borough s argument that the trial court erred in not ruling on the Borough s petition to enforce settlement and in ruling on Barr s claim as to Amended Rule 12. In support of this argument, the Borough contends that Barr never challenged the constitutionality or lawfulness of the original Rule 10 or Amended Rule 12. Rather, Barr s various pleadings alleged that the original Rules 4, 5, 6, 7, 11, 12, and 13 (not Rule 10) violated her rights as a journalist. The challenged rules were addressed in conjunction with the hearing 3 In reviewing a grant or denial of a permanent injunction, which will turn on whether the lower court properly found that the party seeking the injunction established a clear right to relief as a matter of law, our standard of review for a question of law is de novo, and our scope of review is plenary. Penn Square General Corp. v. Cnty. of Lancaster, 936 A.2d 158, 167 n.7 (Pa. Cmwlth. 2007) (quoting Buffalo Twp. v. Jones, 571 Pa. 637, 644, 813 A.2d 659, 664 n. 4 (2002)), appeal denied, 598 Pa. 14, 952 A.2d 1169 (2008). 4

scheduled for February 27, 2012, which resulted in the stipulation being entered into by the parties. When the Borough Council passed its Amended Rules, the Amended Rules included the original Rule 10, which was renumbered as Amended Rule 12. Barr never amended her complaint or amended petition for injunctive relief to assert a challenge based on the original Rule 10 or Amended Rule 12. Rather, she merely contended that the Amended Rules did not comply with the stipulation. The Borough argues that, because Barr never objected to the original Rule 10 nor amended her pleadings to challenge Amended Rule 12, the trial court erred in granting Barr relief based on Amended Rule 12, as the issue of the constitutionality or lawfulness of Amended Rule 12 was not before the trial court. Barr does not address this argument in her brief, although at argument Counsel for Barr offered an explanation. She asserted that Barr did not object to the original Rule 10, because Barr did not have an accurate copy of the Rules. As a result, Barr did not know of the existence of the original Rule 10 until after the Borough Council adopted its Amended Rules. She offered no explanation as to why Barr, thereafter, failed to seek leave to amend her pleadings to challenge the original Rule 10 or Amended Rule 12. Pennsylvania Rule of Civil Procedure 1019(a) specifically provides that [t]he material facts on which a cause of action... is based shall be stated in a concise and summary form. The purpose of Rule 1019(a) is to require the pleader to disclose the material facts sufficient to enable the adverse party to prepare his case. Landau v. W. Pa. Nat l Bank, 445 Pa. 217, 225, 282 A.2d 335, 339 (1971). Our Supreme Court in McShea v. City of Philadelphia, 606 Pa. 88, 995 A.2d 334 (2010), explained that Pennsylvania is a fact-pleading state. As a minimum, a pleader must set forth concisely the facts upon which his cause of 5

action is based. The complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim. McShea, 606 Pa. at 96, 995 A.2d at 339 (quoting Line Lexington Lumber & Millwork Co., Inc. v. Pa. Publishing Corp., 451 Pa. 154, 162, 301 A.2d 684, 688 (1973)). In other words, a complaint must formulate the issues by summarizing those facts essential to support the claim. Richardson v. Wetzel, A.3d (Pa. Cmwlth., No. 2359 C.D. 2012, filed August 6, 2013), slip op. at 5 (quoting Sevin v. Kelshaw, 611 A.2d 1232, 1235 (Pa. Super. 1992)). As a fact pleading jurisdiction, our courts are presumed to know the law, and plaintiffs need only plead facts constituting the cause of action, and the courts will take judicial notice of the statute involved. Heinly v. Cmwlth., 621 A.2d 1212, 1215 n.5 (Pa. Cmwlth. 1993). Plaintiffs need only plead the facts and not the legal theory or theories underlying the complaint. Id. Here, despite the fact that Barr identified specific Rules that she was challenging, Barr failed to plead any facts challenging the original Rule 10. In fact, Barr claims to have been unaware of the existence of the original Rule 10 at the time she filed her complaint and entered into the stipulation. Barr s complaint, therefore, cannot be construed as asserting a challenge against a rule of which she was unaware. Upon learning of the existence of the original Rule 10 and Amended Rule 12, Barr failed to amend her complaint or otherwise challenge Amended Rule 12. Barr, therefore, failed to apprise the Borough in her pleadings of any claim that original Rule 10 or Amended Rule 12 was unconstitutional or violative of the Sunshine Act. See McShea, 606 Pa. at 96, 995 A.2d at 339. Under those circumstances, Barr did not meet the fact-pleading requirements of this jurisdiction and could not maintain the claim relating to the original Rule 10 or Amended 6

Rule 12. Thus, the trial court erred in addressing the constitutionality of those rules. Because we agree with the Borough that there was no challenge to the original Rule 10 or Amended Rule 12 pending before the trial court, we vacate the trial court s order and remand the matter to the trial court for further proceedings, including consideration of the Borough s petition to enforce settlement. 4 P. KEVIN BROBSON, Judge 4 It appears to this Court that there may be an issue as to whether, in the absence of the filing of an amended complaint, the action before the trial court may have been rendered moot by the Borough s withdrawal of its original Rules and adoption of its Amended Rules. We also note that, as to the issue of the lack of constitutionality of Amended Rule 12, the reasoning of the trial court is persuasive. Finally, we note that the trial court, without explanation, applied the more rigorous standard for issuance of a preliminary injunction, rather than a permanent injunction. Nevertheless, it appears that Barr could have met the standards for a permanent injunction, had the constitutionality of Amended Rule 12 been before the trial court. Nothing in this opinion should be interpreted to preclude Barr from amending her action or initiating a new action challenging the constitutionality of Amended Rule 12. 7

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lisa J. Barr : : v. : No. 408 C.D. 2013 : Tom LaMont, Craig Reimel, Sean : Granahan, Tony Pickett, Julianne : Skinner, Todd Chamberlain, and Randy : Schuster in their official capacity as : members of the Montrose Borough : Council and John Wilson in his official : capacity as Mayor of the Borough of : Montrose, Pennsylvania, : Appellants : O R D E R AND NOW, this 4 th day of October, 2013, the order of the Court of Common Pleas of Susquehanna County (trial court) is hereby vacated and the matter remanded to the trial court for further proceedings. Jurisdiction relinquished. P. KEVIN BROBSON, Judge