fail on its own merits. If the Commonwealth Court could not “determine from the current
record whether disclosure of this section would be reasonably likely to threaten public
safety or preparedness,” 62 that simply means that PSP did not carry its burden. To
approve of the panel’s intervention into that inquiry would be to give preferential treatment
to one party over another. This Court cannot countenance such a result.
Had PSP requested the opportunity to supplement the record, and had the
Commonwealth Court granted that request, our disposition today might be different. The
record clearly demonstrates, though, that PSP steadfastly maintained its position that the
Burig Affidavit alone was sufficient to justify its redactions of AR 6-9. 63 Not once did PSP
seek the opportunity to introduce additional facts, nor did it identify additional facts that
would, if added to the record, support its decision.
Furthermore, it is axiomatic that “[s]ua sponte consideration of issues deprives
counsel of the opportunity to brief and argue the issues and the court of the benefit of
counsel’s advocacy.” 64 In other words, it “disturbs the process of orderly judicial decisionmaking.” 65 This Court accordingly tolerates sua sponte action only in a narrow set of
circumstances, 66 and these are not among them. Our first remand to the Commonwealth
Court was PSP’s opportunity to supplement the record. PSP did not take that opportunity,
62
Id.
63
See supra n.33.
64
Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975).
65
Johnson v. Lansdale Borough, 146 A.3d 696, 709 (Pa. 2016).
See, e.g., Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017) (“A challenge to
the legality of a particular sentence may be reviewed . . . by an appellate court sua
sponte.”); Commonwealth v. Edmondson, 718 A.2d 751, 752 n.7 (Pa. 1998) (“[T]his Court
can raise the issue of waiver sua sponte . . .[.]”); LeFlar v. Gulf Creek Indus. Park No. 2,
515 A.2d 875, 879 (Pa. 1986) (“The lack of jurisdiction of the subject matter may be raised
at any time and may be raised by the court sua sponte if necessary.”).
66
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