*1 994 Majority places short, January ployed by 2014 such noose statements to choke it of all sense of around may have representatives here

by the UC I would reverse the fairness. As decision to the deductibil Claimant as misinformed below, respectfully, I But, compelled, am dis ity payments. his severance sent. him from not dissuade misinformation did receiving benefits. After

applying UC misinformation, given was Claimant

accurate, information about written deduc payments in the UC

tibility severance accurate,

Handbook, given he was appeal rights his information about written Application by IN RE: NONPROFIT Claimant in the notice of determination. CORPORATION TRUSTEES TO availability, tim as to the not misled was COMPEL INSPECTION OF CORPO However, appeal. an Claim ing need for RATE INFORMATION Therefore, timely did not appeal. ant denying Claimant’s Brown, III, Board did not err Appeal of: B. Edward Bar untimely Accordingly, we appeal. Doran, Jubelirer, affirm. L. bara Robert C.

Anthony Lubrano, Ryan P. J. McCom bie, Oldsey ORDER F. and Alice W. William Pope March, NOW, day 10th AND this

2017, forego for the reasons stated No. 721 C.D. 2016 Unemploy opinion, the Pennsylvania. Commonwealth Court Compensation of Review is ment AFFIRMED. 15, Argued: 2016 December 13, FILED: March 2017 BY

DISSENTING OPINION JUDGE COSGROVE recognize thoughtful analy

IWhile by Majority, I must dissent.

sis offered question permission ap whether granted pro nunc tunc should be

peal Bu equity.

one which lies in See Bass v. Corrections,

reau 485 Pa. A.2d (1979); also, Depart v. see Schofield Driver Transportation,

ment Bureau (Pa. Licensing, Cmwlth. 828 A.2d core, simple At matter of its question is no in this case

fairness. There govern misleading information entity provided

mental to Claimant information,

Kenneth Greene. This at the (if least,

very outright con influenced

trolled) pro making Claimant’s decision

cess, an impediment and created

timely filing appeal. Submitting

equitable question to the standard em *2 Brier, Scranton,

Daniel T. appellants O’Dea, Jr., F. Joseph Philadelphia, for appellee.

BEFORE: HONORABLE MARY LEAVITT, Judge, HANNAH President HONORABLE A. PATRICIA McCullough, judge, honorable HEARTHWAY, Judge JULIA K. BY OPINION JUDGE PRESIDENT LEAVITT Brown, III, B. L. Do- Edward Barbara ran, Jubelirer, Anthony C. P. Lu- Robert brano, McCombie, Ryan J. William F. Oldsey, Pope (collectively, and Alice W. Trustees) on the Board of Trustees serve of The State (University). They appealed an order of the Court of Common Pleas of Centre (trial court) County their re- denied quest reimbursement to compel fees and costs inspection of permit trial court records. The denied request fees because concluded that the did not act dilatory, in a obdurate or vexatious man- ner its defense compel. The trial court also concluded University’s corporate charter did all members access Trustees’ le- tion allow Board authorize reimbursement Instead, gal expenses. contend the Freeh Source Materials. because the Pennsylvania adopted trial court erred October the Board (Non- Nonprofit Law 1988 Corporation resolution a reevaluation Freeh Law)1 profit Corporation authorizes a fee Report not in inter- *3 in a a where director successful award est. as

petition compel, do the to 20, 2015, April peti- On a Trustees filed reverse the trial charter and compel tion the to the court. production of the Freeh Source Materials. 5512(b) of Nonprofit Corpora- Background the C.S, Law, 5512(b), tion Pa. authorizes by the have been elected alum- corporation compel a of a to the director ni of to serve on the Board corporation produce corporate to records.2 Trustees, compensa- no they receive and petition authori- Trustees’ was filed under July tion In of Louis for this service. 5512(a) ty of Nonprofit of the Cor- Freeh, Sullivan, LLP Sporkin Freeh & Law, poration which states follows: Solutions, Group Freeh International and LLC, “Report Special of released the (a) rule.—To the extent General reason- the Ac- Investigative Regarding Counsel ably performance related the the to to the tions the Related director, including duties the those Child Sexual Committed Gerald Abuse arising from as a of a service member (the Sandusky” Report). A. Freeh directors, committee the board accepted University’s Board' of Trustees nonprofit corporation director it Report the Freeh had commissioned and entitled: it implement would the announced (1) person by any attorney or or report. the recommendations time, agent, any other reasonable Board, to Trus- After their election the books, inspect copy corporate and requested tees access to the materials that and, in records and documents addi- generated had been collected and dur- tion, inspect, and receive informa- (Freeh investigation Freeh’s Source assets, regarding, tion liabilities Materials). requested materials When corporation operations and produced, were not Trustees sent a letter in- any corporation subsidiaries Masser, to Keith Chairman of E. or corporated organized or otherwise Trustees, Barron, Eric Board of J. of this Com- created under laws University, requesting President ac- directly monwealth that are controlled By the Freeh Source Materials. cess indirectly by corporation; of April letter the Chairman and (2) to demand that counsel, President, by responded rights may exercise whatever duty not have Trustees did regarding any to obtain information Freeh Materials be- review the Source corporation. subsidiaries cause were not relevant matter added). 5512(a) pending this support, before Board. Noting Report prompted Freeh letter October noted Ath- Collegiate sanctions National rejected resolu- proposed 5512(b) §§ 2. The text of Section is set forth in 1. 15 Pa. C.S. 5101-5997. opinion, infra. subject letic Association and was the related” the director’s The trial duties. matters, ongoing litigation peti- several court concluded that the University did not tion to requested asserted that the meet this burden. “reasonably

materials were related” First, court rejected Uni performance Trustees’ ongoing duties. versity’s argument that the two resolutions University opposed considered in October 2014 proved that the It compel. asserted that the Freeh Source requested documents not reasonably were reasonably Materials were not related to to ongoing related University business. performance of Trustees’ duties. The Rather, the vote on the two resolutions alleged also that Trustees were demonstrated that the Board did likely use the Freeh Source Materials in agree on how to handle gener the matters way that would violate their fiduciary *4 by ated thé Report. Machen, Freeh Under duty Petition, to University. the Answer to however, majority the cannot deny minori ¶2. Finally, University alleged the that it ty directors right the to corpo decide what “promised had the interviewees that their rate records fulfill need to their kept identities would be confidential and Likewise, duties.- rejected the trial court by statements would be shielded the University’s argument the that a director University’s attorney-client An- privilege.” right does not a duty to oversee ¶32. Petition, to swer matters; litigation litigation falls within later, 19, months Seven November category-of “assets, the liabilities and 2015, the trial court granted pe Trustees’ operations corporation” that a di compel. tition to The trial court based its rector is charged manage. to ruling, significant part, upon our Su 5512(a)(1). § Finally, reject the trial court preme Court’s decision Machen v. Ma University’s the- argument ed that Trus Mayer & Electrical Manufacturing chen likely tees were to misuse the records. Company, (1912), 237 Pa. 85 A. 100 trial court no to support found evidence which majority held that of a board claim, noting agreed that Trustees had deprive minority directors cannot directors confidentiality. to maintain Nor did the corporate to access information. The trial support evidence claim right court observed that “the of a director that the individuals who had been inter inspect to corporate information un [is] by promised viewed Freeh had been confi 11/19/2015, qualified.” Trial op., Court at 3. dentiality prior by to their- interview The trial court also relied on Strassburger investigators. Freeh Philadelphia v. Company, Record Pa. 335 court’s November (1939). A.2d In Strassbwrger, granted petition to compel Trustees’ Supreme Court concluded that it is the give them access judgment of the director that determines Freeh Source Materials. Its order included whether information “en would provision- a that Trustees perform able him to his could discuss duties to the cor poration.” privi- information or Id. 924. The marked confidential trial court con 5512(a) leged only in executive sessions of Nonprofit Section strued Corporation Board or embody principles Law to communications with Uni- and, thus, legal Strassbwrger versity’s Machen and counsel. The trial court de- placed upon corporation request the burden nied for attorneys’ demonstrate that parties pay the access and ordered the demanded their own corporation’s “reasonably director is not fees and costs. counsel lating to receive participants for filed motion reconsidera-

Trustees fees). counsel part that of the trial court’s order tion of attorney’s denying request fees. 5512(b), (c) 15 Pa. add- C.S. 5512(b) argued Trustees ed). argued the cross-refer- (c) Nonprofit Corporation Law enti- ence counsel fees authorized Section 5512 tled them fees. Code, 42 of the Judicial Pa. C.S. states, in part, relevant follows: 2503(7), signals expect to the director’s should shoulder (b) Proceedings for the enforcement of com- having pursue cost corpo- inspection a director. —If the pel production documents. Trustees thereof, ration, agent or or an officer argued University’s vigorous, also inspection an or permit refuses to obtain simple sum- losing, defense turned sought by a or information di- production mary proceeding over attorney agent acting or rector unnecessarily into corporate records an pursuant to subsection for the director This proceeding. dilatory and protracted (a) request reply or does contended, conduct, en- obdurate days two after within business the re- them to be reimbursed them titled made, quest may has been the director fees, as did the court an order to apply to the charter and inspection obtaining pro- or the *5 viding The court the University responded that The its de- of information. summarily corporation shall the dilatory, was not obdurate or vexa- fense permit requested inspection the or to It that Trustees the tious. noted refused corpo- obtain the information unless the University’s provide offer to them the that the information to form, ration establishes Materials redacted Freeh Source the exercise of the be obtained they and refused the terms Univer- reasonably perform- confidentiality agreement.3 not related the sity’s proposed ance of the of the director or that trial court Trustees’ duties Because the restricted Materials, attorney agent the or the of of the Freeh the director use Source likely University argued the to use the informa- that the trial court director University’s found the concerns about tion a manner that would violate the legiti- Trustees’ use the materials be duty corporation. the director mate. may pro- of the court contain The order protecting corporation the from

visions 21, 2015, trial court On December expense prohibit- burden and undue granted request Trustees’ for reconsidera- ing using informa- the director from Thereafter, April on trial tion. in a that would tion manner violate the request for again court denied Trustees’ corporation. duty the director attorneys’ although that fees. It held (c) unsuccessful, Cross references. —See sections 107 University’s defenses were records), (relat- (relating lodge to form of not these defens- did records; corporate inspection by purpose causing annoyance.” “for es members) 2508(7) (re- 4/4/2016, Trial Court 3. Trustees op., and Pa.C.S. responded permit copy University’s them to certain documents or 3. proposal unacceptable because it re- to make on the content *6 compel. The responds that the bursement will made in with accordance provides charter to pol- reimbursement trus- reimbursement travel may justify 4. "The awarding standard review when the trial to mation counsel fees grant court refuses to counsel fees is that the necessary if the director it is to seek an reasonableness of the is a matter refusal compelling inspection. of court which within the sound of the rests discretion 1512, § 15 Pa. C.S. Committee Comment trial court and will be reversed when (2001) added). there is a clear abuse of discretion.” Town QED, Inc., ship Lower Merion v. 762 A.2d 2503(7) 6. Section states: 779, (Pa. Cmwlth. following participants shall be entitled argue part 5. to Section 5512 of the a reasonable fee as counsel Nonprofit Corporation Law entitles a director of the taxable matter: costs legal bring legal to fees if he is forced a to proceeding corporate (7) to obtain access to rec- Any participant iswho awarded coun- statutory right. ords to which he has a sel fees as a another sanction Corporation 1512 of the Business Law of participant dilatory, obdurate or vexa- § applies which to during pendency conduct of a tious corporations, "domestic” is Sec- identical to matter. tion 5512. The comment to Section 1512 2503(7). C.S. Pa. states: (c) Corporate 7. The Charter available online at The cross is reference in to 42 subsection (last https://trustees.psu.edu/charter.html Pa. is vis- C.S. a reminder that denial 9, 2017). by a a ited March director’s infor- icies, Charter does not au- Corporate right of a trustee to reimbursement five litigation ex- thorize reimbursement expenses engaged “while incurred trustee. by a penses incurred discharge official Cor- duties.” [his] porate Charter at C-6. legal argue discharge expenses engaged “while Corporate Charter authorizes the legal These ex- official duties.” adopt bylaws good gov- “as the of “other type a direct penses constitute require.”8 of the institution ernment shall reimbursed,” in “may be expense” that Corporate Charter at C-7. The Board expenses.” Id. “transportation addition bylaw for reimburse- adopted “in is done accordance Reimbursement Ar- litigation expenses. of a ment trustee’s University’s travel reimburse- with ticle of the Amended and IV Restated University may policies,” ment which Bylaws of the State Univer- to time.” Id. Trastees change “from time states, in sity Bylaws) relevant (University simply identifies argue that this reference part, as follows: seeking reim- process be used when (a) Right to Indemnification. not intended bursement and is (i) herein, As “Action” used word import. re- substantive action, or pro- shall mean suit reimburse- sponds phrase that the “travel administrative, ceeding, investigative of “other policy” type ment limits the di- other, (i) person or to which such is expenses” may be reimbursed rect (other party by an action than Corporate Charter. under the (ii) University) or in connection with reject reading trial court’s person party such but which Corporate If Charter. witness, or subject investigation limits a trustee’s reimbursement involved, either case otherwise alone, expenses phrase travel then having person being of such or reason engaged “other expenses direct while been or officer of the Uni- a Trustee discharge of them official duties” is versity person or reason of such surplusage meaning. and has no The travel serving having or at served the re- policy, changes from which time time director, quest as a pleasure University’s manage officer, employee, fiduciary other ment, Indeed, dispositive. policy is not representative corporation, of another corporation’s management adopted trust, venture, partnership, joint em- of a cannot be used defeat terms entity. ployee plan benefit volunteers, charter. Trustees *7 (ii) law, Except prohibited by as each expected personally not but are University Trustee officer of and expenses providing their in ser fund shall be entitled as of be Otherwise, only persons of financial vices. by University against indemnified means be able to serve as would trustees. short, expenses any liability paid or in- and the reference to the (i) person policies by not limit the curred such de- travel does substan- usually performed by Corporate and within the 8. Charter states as follows: Trustees, appropriate duty of a power pass such Board shall have all shall, ordinances, bylaws, good by Secretary appoint- as the and of their and rules government ment, require, proceedings shall keep institution and minute prescribe and therein to what shall action of the Board. taught generally pupils, do to the and at C-7. perform and all acts as such administrative any fense of Action to plicable which such statutes, the interpretation of (ii) person party is in connection contracts other written and instruments (Citation any omitted.)[.] with other Action. ... bylaw If the is tee” shall include each Trustee and (iv) each of Trustees as entitled As officer person designated used in this * * University Section, ^[*] by the Board the benefits “indemni- and each Id. unambiguous, then to the as Court does (citation omitted). it is force parties’ written and need intent. effect and the [it] interpret required is language to be construed it or look since the is given Section;. of this “liability” shall include Here, applicable bylaw states taxes, judgments, amounts of excise trustee “shall be of right entitled as fines, penalties paid and amounts in to by. indemnified University ‘be settlement; “expenses” and shall in- against expenses ... paid or incurred clude expenses counsel person ... any such connection with (i) only the indemnitee if other Action.” Section Bylaws, the University expense has not at its 4.02(a)(ii). An “action” is defined assumed the the Action on defense of bylaws any proceeding to which a trus the indemnitee reputa- with behalf of 4.02(a)(i). party. tee Id. at Section experienced ble and counsel selected limited, Indemnification as the Uni (ii) University, if it shall contends, versity to those “actions” where have been pursuant determined to the trustee is a defendant. (c) hereof that the indemnitee a corporate law authorizes for ex- entitled indemnification director to inspect copy “corporate penses respect brought of an Action books, and, records and documents in addi- under that Section. tion, inspect, and receive information 4.02(a) (em- Bylaws, assets, regarding, opera- liabilities and added).9 phasis contend tions of the subsidiar- bylaw also entitles them to reimbursement ies of corporation.” expenses their “fees and of counsel.” We 5512(a)(1). When the denied agree. Trustees access to the records they requested, recourse was to bylaws non-profit corpo “a a petition to file under Section ration, establish gover rules internal 5512(b) Nonprofit Corporation Law. nance that are to their according construed prevailed proceeding. in this Giv- plain meaning within the context circumstances, en these document as a Purcell whole.” v. Milton bylaws entitle the Trustees to indemnifica- Association, Hershey School Alumni tion. (Pa. 379 n.10 A.2d Cmwlth. explained *8 upon President relies construing bylaws, Byláws

[w]hen ... Barron’s that “the do statement this Court ap- must use the same rules not require pay for law- (last March 9, copy University Bylaws 9. A can be html visited viewed https://trustees.psu.edu/charter. at: to Article of the Amended and it, pursuant IV including frivolous and suits Bylaws Pennsylvania State President Barron’s Restated damaging lawsuits.” provi- of opinion trump University (University Bylaws). the words cannot case, state- point. of Article are clear on this President’s sions IV application However, disposed ment has no because because we have In- not compel issue, frivolous. petition I on this under- merits the case deed, they prevailed. have not reached determi- score we University engaged in nation dila- reasons, For these we reverse conduct so as tory, obdurate vexatious order and remand case court’s pursu- claim for counsel fees support trial court for a calculation Code, ant to section Judicial litigat- Trustees incurred and costs fees 2503(7).1 42 Pa.C.S. appeal. and this to reimbursement of Trustees entitled however, I agree, do not and therefore they in liti- those and costs incurred dissent, Majority’s to the conclusion gating this matter.10 C-6 of the Charter of section University (Corpo- State Charter) provides an rate additional basis Judge

Judge Covey Cohn Jubelirer and recovery for Trus- of counsel fees in this participate the decision did contrary, To the I believe that the tees. case. Charter is silent this issue. ORDER 4.02(a)(iv) Conversely, Article University Bylaws expressly includes March, NOW, day AND this 13th the definition of “ex- counsel fees within order of the Court Common penses” pursuant that are reimbursable County April Pleas dated Centre University Bylaws. Given that 2016, in is RE above-captioned matter right to relief clear under case is and the REMANDED VERSED no Bylaws, there is need an for calculation of award Corpo- out read words limitation Appellants in liti fees and costs rate an additional basis ap gating underlying and this matter recovery, I respect- therefore must peal. fully portion from that of the Ma- dissent relinquished. Jurisdiction opinion. jority’s AND DISSENTING CONCURRING BY

OPINION MeCULLOUGH JUDGE agree thoughtful Majority

I s with the are to the Trustees

conclusion costs

reimbursed for the counsel fees and underlying litigation, incurred in the Majority 1. The does not reach this issue. 10. Because this Court has determined that are entitled to indemnification legal the Universi- fees and costs under ty’s bylaws, we need not address Trustees’ remaining arguments. even notes quired Philadelphia Trustees to travel to the documents. law firm did not office of travel, court’s appealed have trial denial of tees for not for initiating a lawsuit request for fees costs. they serve. The University contends, likewise, that by- appeal,4 On Trustees raise three laws indemnification issues, pur which have been reordered where the trustees are defendants in liti- First, poses of our disposition. gation arising from their service they contend that to attorneys’ are entitled Board. University’s corporate fees under the char Second, they ter and assert Corporate Pennsyl- Charter they are entitled to fees under vania (Corporate State University Char- 5512(c) of Nonprofit Corpora ter) sets forth the terms service all Law, 5512(c).5 Third, tion trustees.7 Regarding compensa- they they contend that to at entitled trustees, states, tion part, in relevant torneys’ under follows: as Judicial Code6 un because the Members of the Board Trustees serve prolonged what should necessarily compen- volunteers and shall be summary been brief and proceeding. The may sated their services. Trustees be gravamen of appeal they is that upon request for transporta- reimbursed required should not litiga have been to file expenses tion and other direct en- while corporate tion to obtain records which gaged discharge official directors, they were entitled as duties, in with the accordance Universi- required expenses let alone shoulder the ty’s policies travel reimbursement ef- litigation. of that from fect time time. address, first, Trustees’ contention Corporate at C-6 add- bylaws charter Charter ed). court .concluded that because require that for the reimbursed expenses they specifies incurred in their reim-