In a legal brief filed last week, C. Clark Hodgson Jr. wrote that none of the newspaper's reasons to reconsider the dismissal were sufficient to do so.

Last month, the court ruled that Roberts (D-South Union Twp.) did not have to show his taxpayer-subsidized cell phone bills to reporter Paul Sunyak in 2000 because he was acting as a private citizen and not a state representative. Roberts showed other media representatives the records.

The newspaper has contended that Sunyak was denied federal equal protection rights and that Roberts' refusal to show him the records was retaliation. The Herald-Standard's attorney, Charles Kelly, has also argued that Roberts was acting in his official, not personal capacity.

The court ruling rejected both arguments in a February opinion. However, the ruling was handed down before Kelly had a chance to include comments from Roberts' deposition in his filing to the court. The court had earlier ruled that Kelly could get a deposition from Roberts.

Kelly is now asking the court to set aside its ruling and review comments Roberts made at the deposition. He claims that Roberts admitted in the deposition that he was acting as a state representative when he refused to give his phone records to Sunyak.

Hodgson argued that the Commonwealth Court should not consider the deposition because doing so after the judgment was filed, "runs contrary to basic, hornbook law in Pennsylvania."

Kelly listed a number of things that Roberts testified to during his deposition that he believes support the newspaper's contention that he was acting as a representative. Included are admissions that Roberts used the phone as part of his elected post, that he spent taxpayer money to reimburse its cost, that his secretary and administrative assistant submitted the bills to the state for him and that he referred newspaper questions about the bills to an attorney for the state Democratic Caucus.

Even if the court did consider deposition testimony, Hodgson argued that it still does not impact the ruling.

At issue "is not the making or reimbursement of telephone calls at issue, but rather Rep. Roberts' personal decision as to whether and to whom he would release copies of his personal cell phone bills," Hodgson wrote.

He noted that the newspaper has relied only upon Roberts being a legislator to show he acted officially.

"As this court correctly stated, this is just not enough. No amount of reconsideration will change that logic," Hodgson wrote.

His filing also indicated that Kelly was mistaken in arguing that the state Supreme Court remanded the case for rearguement because it found that Roberts was acting officially.

Instead, Hodgson indicated that the high court never decided that issue because it was never before them.

The case, filed in Commonwealth Court in 2000, was initially dismissed and appealed to the Supreme Court. In 2003, that court remanded the case to have the Commonwealth Court to determine if Roberts' alleged equal protection and retaliation violations against Sunyak amounted to enough of a reason to order the release of his phone records.

Kelly said he believed it was important to have "a full, public airing of Rep. Roberts' conduct," in terms of how he treated Sunyak.

"No one has the right to try and manipulate a newsroom," Kelly said.

Despite Hodgson's motion, Kelly said that he is hopeful that the Commonwealth Court will give the matter further consideration.

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