The Morning Call, Allentown, Pa., Watchdog column [The Morning Call, Allentown, Pa.]

Dec. 11--If you want another example of government making someone's life difficult, meet Dick Smith.

In May, he was driving on Valley Road in Bethlehem, not far from where he once lived.

"All of a sudden, I hear this bang, and a jolt," Smith told me. He knew he had a flat, but he didn't know why.

After he stopped, he saw he had struck a manhole where the cover was partially off. Smith said a man who lives on the road told him he had noticed the manhole cover was off and was on his way to straighten it out when Smith hit it. The witness account is included in the police report on the accident.

Smith said his rim was damaged, too. His insurance company estimated damage at $645, with Smith having to pay a $500 deductible.

Believing the city was responsible for failing to secure the manhole cover, Smith filed a damage claim with Bethlehem, seeking to recoup his deductible. He said a city attorney told him over the phone about a month later that his claim was denied. Smith said he called the mayor's office to lodge an appeal, and on Aug. 8 received a formal denial letter. It cited the oldie-but-goodie "governmental immunity" defense.

"We have concluded that there was no negligence on the part of the city and no exception to governmental immunity under the Political Subdivision Tort Claims Act," paralegal Cynthia Bartera wrote.

That law says a local government carrying out its normal duties isn't liable for an "injury" unless it was caused by negligence, or carelessness.

Smith sent an appeal letter to Bethlehem Mayor John Callahan in mid-August. When he called to follow up, he said he was told the mayor had referred the matter back to the legal department. So it was no surprise when an attorney again denied his claim.

With nowhere else to turn, Smith called the Watchdog in late August. I told him governments, unfortunately, can hide behind governmental immunity. The only way to break through that shield would be to prove the city had been negligent in leaving the manhole cover ajar.

I told Smith he could use the state's Right-to-Know Law to request records of any work that had been done in the manhole around the time of the accident. If he could show the city had opened the hole recently, he might have a case.

Jackpot!

After receiving Smith's records request, Bethlehem changed its mind and offered to write him a check.

Smith said the city's legal department told him the city would pay if he would sign a release form saying he wouldn't sue in the future over the incident.

On Sept. 15, the city sent him the release form with another letter from Bartera that said:

"A review of your claim indicates that the city of Bethlehem may have some responsibility in connection with the subject accident."

Smith got paid in mid-October.

I can't say for sure why the city changed its mind and paid him after feeling so confident that it wasn't at fault only a few months earlier. I tried to ask a city lawyer, but my call wasn't returned.

I have a few theories, though.

Perhaps the city didn't really investigate Smith's claim the first several times he asked, or it investigated poorly and didn't discover the truth.

Or, dare I suggest, the city tried to save $500 by cowering behind the shield of governmental immunity, figuring Smith wouldn't know how to break through it. But when Smith wouldn't take no for an answer and sought possible evidence to the contrary, his claim was approved at the speed of light.

"They knew this all from the start," Smith told me. "If I hadn't sent that request that you told me to send, I'd still be making phone calls and be hot under the collar."

He wonders if the city thought he had requested records in preparation for a lawsuit.

His wife, Annette, said they weren't familiar with the Right-to-Know Law, but she's glad they know about it now, as it made the difference.

"I'm convinced we wouldn't have gotten anywhere," she said.

Bethlehem never did give Smith the records he asked for. It was a moot point for Smith, who was after the money, not the paperwork. But I wanted to know what those records showed, so I filed an identical Right-to-Know request on Oct. 19.

The city told me it needed 30 days to determine whether the records I asked for had to be made public under the law. Oddly, the city hadn't made that argument with Smith when he asked for the same records.

I was due an answer, or a reason why my request was denied, by Nov. 23. The city blew that deadline and didn't fill my request until last week. The records I got didn't shed any light on what made the city change its mind on Smith's claim. I was told the only record that existed regarding manhole work around the time of the accident was the request to replace and seal the cover after Smith hit it.

Smith's case shows the power of Pennsylvania's Right-to-Know Law. It's your law. Use it. The law makes most records of government agencies available for public review. You can use it to your advantage when you have a dispute with a government, as Smith did.

More information on what the law covers, how to request records and how the law can be used to resolve disputes with governments is on my blog at http://blogs.mcall.com/watchdog/.

The Watchdog is published Thursdays and Sundays. Contact me by email at [email protected], by phone at 610-841-2364 (ADOG), by fax at 610-820-6693, or by mail at The Morning Call, 101 N. Sixth St., Allentown, PA, 18101. Follow me on Twitter at mcwatchdog and on Facebook at Morning Call Watchdog.

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