Martin, J. v. Villa, B.

J-A31044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES B. MARTIN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
BILL VILLA, ROBERT J. WALSH A/K/A
“BOBBY GUNTHER WALSH,” IHEART
COMMUNICATIONS, INC. F/K/A CLEAR
CHANNEL COMMUNICATIONS, INC.
CAPSTAR RADIO OPERATING COMPANY,
IHEARTMEDIA, INC. F/K/A CC MEDIA
HOLDINGS, INC.
No. 95 EDA 2016
Appeal from the Order Entered December 8, 2015
in the Court of Common Pleas of Lehigh County Civil Division
at No(s): 2015-C-406
JAMES B. MARTIN IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BILL VILLA, ROBERT J. WALSH, CAPSTAR
TX, LLC, IHEART COMMUNICATIONS
AND IHEART MEDIA, INC.
APPEAL OF: THE OFFICE OF THE
DISTRICT ATTORNEY OF LEHIGH
COUNTY
No. 128 EDA 2016
Appeal from the Order Entered December 8, 2015
in the Court of Common Pleas of Lehigh County Civil Division
at No(s): 2015-C-406
J-A31044-16
BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, * J.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 15, 2017
Appellants, James B. Martin (“Martin”) and The Office of the District
Attorney of Lehigh County (“Office”), appeal the order entered in the Lehigh
County Court of Common Pleas granting the motion filed by Appellees, Bill
Villa (“Villa”), Robert J. Walsh a/k/a “Bobby Gunter Walsh,”
iHeartCommunications, Inc. f/k/a Clear Channel Communications, Inc.,
Capstar Radio Operating Company, and iHeartMedia, Inc., f/k/a CC Media
Holdings, Inc., to compel discovery.1 We vacate in part, reverse in part, and
remand for further proceedings consistent with this memorandum.
The trial court summarized the facts and procedural posture of this
case as follows:
This matter involves the alleged defamation by
[Appellees] of [Martin], a district attorney, by way of a
radio talk show. The lawsuit arises out of statements
regarding [Martin’s] prosecution and handling of certain
cases, including DUI homicide cases. As a result of
[Martin’s] failure to produce documents and information
regarding the prosecution of cases at issue, [Appellees]
filed a motion to compel discovery from [Martin]. Provided
that the sought after documents and information
requested by [Appellees] are highly relevant and in the
exclusive possession of [Martin], this court granted
[Appellees’] motion to compel discovery of the requested
documents and information.
*
Former Justice specially assigned to the Superior Court.
1
See R.R. at 439a (Case 95 EDA 2016). For the parties’ convenience, we
refer to the reproduced record filed in 95 EDA 2016.
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* * *
This action was initiated on February 6, 2015 by the
filing of a complaint by [Martin], alleging counts of
defamation and false light invasion of privacy against
[Appellees].2 This defamation action stems from
statements made by [Villa], on the radio show of
2
Id. at 10a. In the complaint, Martin reproduced verbatim the content of
the broadcasts which he averred were “false and defamatory.” See id. at
16a-19a, 21a . Martin averred that the
false and defamatory statements published by Villa, Walsh
and Clear Channel falsely and maliciously conveyed and/or
implied that Martin:
a. “fixed” criminal prosecutions in Lehigh County;
b. concealed evidence relating to criminal prosecutions in
Lehigh County;
c. deliberately failed to collect evidence relating to criminal
prosecutions in Lehigh County;
d. lied to crime victims and crime victims’ families relating
to a criminal prosecution in Lehigh County;
e. lied to a judge relating to criminal prosecutions in
Lehigh County;
f. “plays favorites” and provides “favors” relating to
criminal prosecutions and the administration of justice in
Lehigh County;
g. colluded with the media to conceal the truth about
criminal prosecutions in Lehigh County; and
h. is corrupt, crooked and has comported himself as a
criminal in relation to his handling of criminal prosecutions
in Lehigh County.
Id. at 19a-20a.
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[iHeartCommunications, Inc. f/k/a Clear Channel
Communications, Inc., Capstar TX LLC, iHeartMedia, Inc.,
f/k/a CC Media Holdings, Inc. and iHeart Media, Inc.] (the
“WAEB AM 790 [Appellees]”), concerning Martin’s handling
of his cases as the Lehigh County District Attorney, and
specifically, his management involving DUI cases.[fn1]
[fn1]
Villa’s daughter was killed by a drunk driver who
was prosecuted by the . . . Office. Martin charged
the drunk driver with Homicide by Vehicle-DUI
although Villa thought the drunk driver should have
been charged with Murder in the Third Degree.
At the early stages of the discovery process, the WAEB
AM 790 [Appellees] sought documents and records relating
to: the criminal prosecutions that Martin specified in his
complaint, disciplinary matters involving Martin, Martin’s
financial information since 2010, and Martin’s reputation
before and after the broadcasts at issue. [Appellee also
served the Office with a discovery request.] Martin failed
to produce the requested documents and information.
[On August 21, 2015, the Office filed a motion to quash
the subpoena for the production of documents relating to
certain cases from 2005 to the present. R.R. at 961a. The
Office, in relevant part, objected to the disclosure of
information subject to the Criminal History Record
Information Act (“CHRIA”), 18 Pa.C.S. §§ 9101-9183 and
the work product doctrine. Id. at 59a, 60a, 64a. The trial
court did not rule on the Office’s motion to quash.]
On October 27, 2015, the WAEB AM 790 [Appellees]
filed a Motion to Compel Discovery[3] from Martin. Martin
filed a Response to the WAEB AM 790 [Appellees’] Motion
to Compel Discovery on November 11, 2015,[4] and
subsequently, on December 1, 2015, [docketed December
3
Id. at 439a.
4
Id. at 845a.
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8, 2015, the trial court] issued an Order granting WAEB
AM 790 [Appellees’] motion.
Trial Ct. Op., 5/24/16, at 2-3.
On December 11, 2015, the Office filed a “request for a protective
order of discovery subject to the [c]ourt’s December 8, 2015 order granting
[the WAEB AM 790 Appellees’] motion to compel.” R.R. at 987a. The Office
noted that it previously filed a motion to quash the subpoena and “invited”
the trial court to conduct an in camera review of the material, but the trial
court did not rule on its motion. Id. at 989a. Therefore, the Office
requested a protective order excluding disclosure until the court ruled on the
motion to quash. The trial court did not rule on the motion to quash or the
request for a protective order.
Martin and the Office timely filed notices of appeal on December 30,
2015. Appellants were not ordered to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal. The trial court filed a Pa.R.A.P. 1925(a)
opinion.5 This Court consolidated these appeals.
Martin raises the following issues on appeal:
A. Whether the [t]rial [c]ourt erred by ordering Martin to
produce documents and information in the exclusive
possession, custody and control of the [Office] and not in
Martin’s possession as an individual, and which documents
and information are privileged and statutorily prohibited
from dissemination by the Criminal History Records
Information Act (CHRIA), 18 Pa.C.S. § 9101 et seq.
5
The trial court filed the same opinion in both appeals.
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B. Whether the trial court erred by ordering Martin to
produce confidential documents and information related to
disciplinary complaints regarding Martin to the
Pennsylvania Disciplinary Board which resulted in no action
against him, the production of which would be in violation
of the Pennsylvania Rules of Disciplinary Enforcement and
the Pennsylvania Disciplinary Board Rules.
C. Whether the trial court erred by ordering Martin to
produce confidential and private documents and
information regarding Martin’s tax returns, income and
finances even though Martin does not intend to assert a
claim for economic damages related to wage and income
loss at trial.
Martin’s Brief at 3.
The Office raises the following issue for our review:
Did the lower court err in granting a motion to compel
which required James B. Martin to provide case files from
the Office . . . in a civil case to which the [O]ffice is not a
party and the contents of the files are both privileged and
protected by statute?
The Office’s Brief at 5.
As a prefatory matter, we consider whether we have jurisdiction over
the instant appeals from the December 8th discovery order, which is not a
final order pursuant to Pa.R.A.P. 341. First, we address the issue of the
order insofar as it compels Martin to provide case files from
the Office.
As a general rule, an appellate court’s jurisdiction
extends only to review of final orders. See Pa.R.A.P. 341
(“[A]n appeal may be taken as of right from any final
order.”) Final orders are those which either (1) dispose of
all claims and all parties, (2) are explicitly defined as final
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orders by statute, or (3) are certified as final orders by the
trial court or other reviewing body. See Pa.R.A.P. 341.
* * *
Rule 341 reflects the traditional approach of American
appellate courts. However, in Cohen v. Beneficial Ind.
Loan Corp., 337 U.S. 541 [ ] (1949), the United States
Supreme Court crafted the collateral order doctrine,
permitting the appeal of a narrow class of orders which
address claims of right “separable from, and collateral to,
rights asserted in the action, too important to be denied
review and too independent of the cause [of action] itself
to require that appellate consideration be deferred until the
whole case is adjudicated.” Id. at 546, [ ].
This Court followed the United States Supreme Court in
adopting a “practical rather than a technical construction”
of what constitutes an appealable order, and so permitting
immediate appellate review of certain collateral orders.
See Pugar v. Greco, [ ] 394 A.2d 542, 545 ([Pa.] 1978)
(quoting Cohen, supra ). Pa.R.A.P. 313, promulgated in
1992, solidified and codified the collateral order doctrine.
That rule provides, in pertinent part:
(a) General rule. An appeal may be taken as of right
from a collateral order of an administrative agency or
lower court.
(b) Definition. A collateral order is an order separable
from and collateral to the main cause of action where
the right involved is too important to be denied review
and the question presented is such that if review is
postponed until final judgment in the case, the claim
will be irreparably lost.
Pa.R.A.P. 313. Accordingly, where an order satisfies Rule
313’s three-pronged test, we may exercise appellate
jurisdiction where the order is not final.
Rae v. Pa. Funeral Dir. Ass'n, 977 A.2d 1121, 1124-25 (Pa. 2009)
(footnote omitted).
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In the case sub judice, the discovery order compelling Martin to
disclose case files from the Office is separable from the main cause of action.
See id. at 1125. The right involved is too important to be denied review.
Id. Moreover, the “disclosure of the documents ‘cannot be undone,’ so that
if review is postponed, the claim will be irreparably lost.” Id. at 1126
(citation omitted). Accordingly, we have jurisdiction to consider the issue on
appeal. See id. at 1125.
We address the first issue raised by Martin and the sole issue raised by
the Office together, as they are interrelated. Martin avers that certain
documents and information sought by Appellees are not in his possession.
They are in the possession of the Office. He further argues that the
disclosure of this information is prohibited by statute, citing 18 Pa.C.S. §
9106(c)(4). Martin’s Brief at 18. “To comply with the Trial Court’s
December [8], 2015 Order, Martin would be compelled to take possession of
criminal files that are solely the property of the . . . Office, and to
disseminate the information contained within those files, in violation of the
express prohibitions of CHRIA, thereby subjecting himself to civil and
criminal liability.”6 Id. at 21.
6
18 Pa.C.S. § 9106 provides: “Any person, including any agency or
organization, who violates the provisions of this section shall be subject to
the administrative penalties provided in section 9181 (relating to general
administrative sanctions) and the civil penalties provided in section 9183
(relating to civil actions) in addition to any other civil or criminal penalty
provided by law.” 18 P.C.S. § 9106(g). Section 9183 provides:
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Similarly, the Office argues that the requested files are not
discoverable pursuant to 18 Pa.C.S. § 9106(c)(4), noting that failure to
comply with CHRIA has civil and criminal penalties pursuant to 18 Pa.C.S. §
9183. Office’s Brief at 10-11. According to the Office, “[t]he majority of
the documents contained in the requested case files are exactly the type of
protected information, dissemination of which is limited by CHRIA. “ Id. at
11.
Our review is guided by the following principles:
Generally, in reviewing the propriety of a discovery order,
our standard of review is whether the trial court committed
(b) Action for damages.─
(1) Any person aggrieved by a violation of the
provisions of this chapter or of the rules and regulations
promulgated under this chapter, shall have the
substantive right to bring an action for damages by
reason of such violation in a court of competent
jurisdiction.
(2) A person found by the court to have been aggrieved
by a violation of this chapter or the rules or regulations
promulgated under this chapter, shall be entitled to
actual and real damages of not less than $100 for each
violation and to reasonable costs of litigation and
attorney's fees. Exemplary and punitive damages of
not less than $1,000 nor more than $10,000 shall be
imposed for any violation of this chapter, or the rules or
regulations adopted under this chapter, found to be
willful.
18 Pa.C.S. § 9183(b)(1)-(2). See also Hunt v. Pa. State Police of Com.,
983 A.2d 627, 639 (Pa. 2009).
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an abuse of discretion. An [a]buse of discretion occurs if
the trial court renders a judgment that is manifestly
unreasonable, arbitrary or capricious; that fails to apply
the law; or that is motivated by partiality, prejudice, bias
or ill-will.
Sabol v. Allied Glove Corp., 37 A.3d 1198, 1200–01 (Pa. Super. 2011)
(citations and quotation marks omitted).
“Pa.R.C.P. 4003.1 permits discovery ‘regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending
action. . . .’” Commonwealth v. Kauffman, 605 A.2d 1243, 1246 (Pa.
Super. 1992) (emphasis added). CHRIA applies “to persons within this
Commonwealth and to any agency of the Commonwealth or its political
subdivisions which collects, maintains, disseminates or receives criminal
history record information.” 18 Pa.C.S. § 9103 (emphases added).
CHRIA defines “criminal history record information” as follows:
Information collected by criminal justice agencies
concerning individuals, and arising from the initiation of a
criminal proceeding, consisting of identifiable descriptions,
dates and notations of arrests, indictments, informations
or other formal criminal charges and any dispositions
arising therefrom. The term does not include intelligence
information, investigative information or treatment
information, including medical and psychological
information, or information and records specified in section
9104 (relating to scope).
Id. at § 9102.
“Investigative information” is defined as follows: “Information
assembled as a result of the performance of any inquiry, formal or informal,
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into a criminal incident or an allegation of criminal wrongdoing and may
include modus operandi information.” Id.
Section 9106(c)(4) of CHRIA provides:
Investigative and treatment information shall not be
disseminated to any department, agency or individual
unless the department, agency or individual requesting the
information is a criminal justice agency which requests the
information in connection with its duties, and the request
is based upon a name, fingerprints, modus operandi,
genetic typing, voice print or other identifying
characteristic.
18 Pa.C.S. § 9106(c)(4).
In Pa. State Police v. Grove, 161 A.3d 877 (Pa. 2017), our Supreme
Court
granted discretionary review to consider whether video
components of motor vehicle recordings (MVRs) created by
appellant Pennsylvania State Police (PSP) are exempt from
disclosure to the public as criminal investigative records
under the Right-to-Know Law, 65 P.S. § 67.101–67.3104
(RTKL) or [CHRIA].
* * *
CHRIA prevents the disclosure of “investigative
information” to the public. 18 Pa.C.S. § 9106(c)(4).
* * *
MVRs do not, generally, constitute per se protected
“investigative information,” and therefore the question of
whether information captured on a particular MVR is to be
excluded from public access under CHRIA must be
determined on a case-by case basis.
With respect to the specific MVRs at issue here, our
inquiry is whether the video portions contain investigative
information under CHRIA such that they should be exempt
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from disclosure. As we have determined with respect to
PSP’s claims under the RTKL, we hold the Commonwealth
Court did not err in concluding the CHRIA does not
preclude disclosure either. The court correctly determined
the only potential “investigative information” on these
MVRs is contained in the audio portion of witness
interviews on Trooper Thomas’s MVR. As this potentially
investigative aspect of the MVRs was ordered redacted,
and neither PSP nor Grove challenged that order before
this Court, we affirm the Commonwealth Court’s decision
on this issue.
Id. 161 A.3d at 880, 895-96.
In Coley v. Phila. Dist. Attorney's Office, 77 A.3d 694 (Pa.
Commw. 2013),7 the Commonwealth Court opined:
Here, Coley requested witness statements compiled by the
District Attorney’s Office in the course of its criminal
investigation. These statements are “investigative
materials” exempt from disclosure under Section
708(b)(16)(ii) of the Right–to–Know Law. The witness
statements also constitute “investigative information”
which cannot be disseminated to a private individual and,
therefore, are exempt from disclosure under Section
9106(c)(4) of [CHRIA].
Id. at 697. In Barros v. Martin, 92 A.3d 1243 (Pa. Commw. 2014), the
Commonwealth Court opined:
Thus, if a record, on its face, relates to a criminal
investigation, it is exempt under the RTKL pursuant to
Section 708(b)(16)(ii). Criminal investigative records
remain exempt from disclosure under the RTKL even after
the investigation is completed.
7
We note that “[t]his Court is not bound by decisions of the Commonwealth
Court. However, such decisions provide persuasive authority, and we may
turn to our colleagues on the Commonwealth Court for guidance when
appropriate.” Md. Cas. Co. v. Odyssey Contracting Corp., 894 A.2d 750,
756 n.2 (Pa. Super. 2006) (citations omitted).
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Also, a record is not considered a public record under
Section 102 of the RTKL if it is “exempt under any other
State or Federal Law,” including the CHRIA. [Section
9106(c)(4) and Section 9102]
Thus, the records requested by Barros—i.e., the
criminal complaint file, forensic lab reports, any confession
and record of polygraph of Quinones, the “Communication
Center Incident Review,” the “Internal Police Wanted
Notice,” “Reports on individual mistakenly apprehended,”
and three signed witness statements—are protected from
disclosure under both the RTKL and the CHRIA as records
“relating to . . . a criminal investigation” and “investigative
information,” respectively.
Id. at 1250 (some citations omitted).
In the case sub judice, the trial court opined:
Here, the WAEB AM 790 [Appellees] are seeking out the
discovery of documents and information relating to the
allegedly slanderous statement made by Villa concerning
Martin’s handling and prosecution of cases as the Lehigh
County District Attorney. Because the truth of the
statements made by Villa are at the forefront of this
defamation lawsuit, the WAEB AM 790 [Appellees] need
access to documents and information in the exclusive
possession of Martin in order to properly prepare for trial
and establish a defense.
* * *
Discovery is the process by which the parties are able
to gather and obtain information “regarding any matter,
not privileged, which is relevant to the subject matter
involved in the pending action” or is “reasonably calculated
to lead to the discovery of admissible evidence.” Pa.R.C.P.
4003.1(a)-(b). As articulated above, the information and
documents requested by the WAEB 790 [Appellees]
complies with Rule 4003.1 and the underlying purpose of
discovery, to allow a fair trial on the merits. Thus, the
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WAEB 790 [Appellees’] motion to compel discovery[8] from
[Appellant Martin] was granted.
Trial Ct. Op. at 4 (emphasis added). We disagree.
Appellees sought, inter alia, the following discovery:
2. All documents relating to the following persons from
2005 to the present:
a. Robert Edward LaBarre;
b. James William Lauer;
c. Amber Rae Washko;
d. Jennifer Ann Gehringer;
e. Christopher Stephen Squires;
f. Gregory M. Williams;
g. Joseph Carl Hoch.
3. All documents (including all evidence) relating to the
following cases and/or matters from 2005 to the present:
a. Commonwealth v. Robert Edward LaBarre (e.g.,
No. CP-39-CR-0003312-2006).
b. Commonwealth v. James William Lauer (e.g.,
Nos. CP-39-CR-0000721-2014; CP-39-CR-0002612-
2010; CP-39-CR-0000632-2007; CP-39-CR-0003700-
2003; CP-39-CR-2101205-1999; & CP-39-CR-0002907-
1996).
c. Commonwealth v. Amber Rae Washko (e.g., No.
CP-39-CR-0000418-2014).
d. Commonwealth v. Jennifer Ann Gehringer (e.g.,
No. CP-39-CR-0003519-2008).
8
See R.R. at 438a.
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e. Commonwealth v. Christopher Stephen Squires
(e.g., No. CP-39-CR-0005610-2006, CP-39-MD-
0003211-2006, & CP-39-CR-0001658-2006).
f. Commonwealth v. Gregory M. Williams (e.g., No.
CP-39-CR-0002153-2009).
g. Commonwealth v. Joseph Carl Hoch (e.g., No.
CP-39-CR-0004810-2014).
4. [With reference to the above captioned cases, a]ll
documents sufficient to identify all persons and/or entities
(attorneys, staff, police, investigators, police departments,
municipalities, judges, etc.) who were involved in the
investigation, prosecution, handling and/or adjudication of
the . . .cases or matters at any time[.]
* * *
9. Any and all documents constituting or relating to any
communications [Martin] sent to or received from third
parties relating to the criminal prosecution of the following
persons from 2005 to the present:
a. Robert Edward LeBarre;
b. James William Lauer;
c. Amber Rae Washko;
d. Jennifer Ann Gehringer;
e. Christopher Stephen Squires;
f. Gregory M. Williams[;]
g. Joseph Carl Hoch[.]
10. All documents sufficient to show all cases involving DUI
homicides and/or deaths caused by a drunk driver handled
by [Martin] since 2005.
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11. All documents sufficient to show all cases involving DUI
homicides and/or deaths caused by a drunk driver handled
by [Martin] since 2005 where you . . . did not pursue third
degree murder charges.
12. Any and all documents constituting or relating to any
of [Martin’s] practices, policies and/or procedures since
2000 relating to:
a. the prosecution of cases involving DUI homicides
and/or deaths caused by a drunk driver;
b. the use of third degree murder charges in the
prosecution of cases involving DUI homicides and/or
deaths caused by a drunk driver;
c. communicating with victim’s families in connection
with prosecution of cases involving DUI homicides
and/or deaths caused by a drunk driver;
d. permitting criminal defendants out on bail to leave
the country;
e. permitting criminal defendants in jail pending trial to
go on furlough for personal or other reasons.
R.R. at 339a-340a, 342a-343a.
Instantly, the trial court clearly found that the information was
relevant. However, it did not proceed further to address Martin’s or the
Office’s claims of privilege. Indeed, there is no indication that the trial court
reviewed any materials to render a determination as to whether CHRIA or a
separate evidentiary privilege would apply. Thus, we find the trial court
abused its discretion in granting the motion to compel discovery without a
more full consideration of whether the matters contained in the files are
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protected from disclosure under CHRIA or another evidentiary privilege.9
Therefore, we are constrained to remand this matter for further
consideration of this issue. The trial court may consider any further
arguments by the parties after which it shall conduct an in camera review
before determining whether the information sought may be disclosed.
Next, Martin argues the trial court “erred by improperly compelling
production of confidential documents and information related to disciplinary
complaints to the Pennsylvania Disciplinary Board which resulted in no
action” against him. Martin’s Brief at 25.
As a prefatory matter, we consider whether the order to produce
confidential documents and information related to disciplinary complaints to
the Pennsylvania Disciplinary Board is appealable as a collateral order.
“Pennsylvania courts have held that discovery orders involving potentially
confidential and privileged materials are immediately appealable as collateral
to the principal action.” Berkeyheiser v. A-Plus Investigations, Inc.,
936 A.2d 1117, 1123–24 (Pa. Super. 2007). We find the order satisfies Rule
313’s three-pronged test. See Rae, 977 A.2d at 1124-25 (Pa. 2009).
Martin argues that “these confidential documents relating to
disciplinary complaints are protected from discovery by the Pennsylvania
9
Neither Martin nor the Office submitted the materials under seal for review
by this Court.
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Rules of Disciplinary Enforcement and the Pennsylvania Disciplinary Board
Rules.” Martin’s Brief at 25.
Appellees served interrogatories seeking information about disciplinary
complaints against Martin. R.R. at 454a. Specifically, interrogatory 28
provided:
a. Have you ever been the subject of an ethics
proceeding or complaint filed with any attorney
disciplinary board or organization? If the answer is yes,
please state all facts relating to the proceeding or
complaint, including the name(s) of the persons
bringing or filing the proceeding or complaint and the
outcome or result;
b. Have you ever been the subject to discipline or
sanctions by any attorney disciplinary board or
organization? If the answer is yes, please state all facts
relating to the discipline or sanctions;
c. Identify all documents which record, relate or refer to
the matters inquired of in this Interrogatory.
Id. at 454a-455a.
Pennsylvania Rule of Disciplinary Enforcement 209 provides:
“Complaints submitted to the Board or Disciplinary Counsel shall be
confidential unless the matter results in the filing of formal charges.”
Pa.R.D.E. 209(a) (emphasis added). Rule 402 provides:
(a) Except as provided in subdivisions (b), (d) and (k), all
proceedings under these rules shall be open to the public
after:
(1) the filing of an answer to a petition for discipline;
(2) the time to file an answer to a petition for discipline
has expired without an answer being filed; or
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(3) the filing and service of a petition for reinstatement.
(4) the Board has entered an Order determining a
public reprimand.
(b) Notwithstanding subdivision (a), an informal
proceeding under these rules in which it is determined that
private discipline should be imposed but that subsequently
results in the filing of formal charges shall not be open to
the public until or unless the Supreme Court enters its
order for the imposition of public discipline.
(c) Until the proceedings are open under subdivision (a) or
(b), all proceedings involving allegations of misconduct by
or disability of an attorney shall be kept confidential
unless:
(1) the respondent-attorney requests that the matter
be public, or waives confidentiality for a particular
purpose specified in writing;
(2) the investigation is predicated upon a conviction of
the respondent-attorney for a crime or reciprocal
discipline;
(3) the proceeding is based on an order of temporary
suspension from the practice of law entered by the
Court pursuant to Enforcement Rule 208(f)(1) (relating
to emergency temporary suspension orders and related
relief);
(4) in matters involving alleged disability, the Supreme
Court enters its order transferring the respondent-
attorney to inactive status pursuant to Enforcement
Rule 301 (relating to proceedings where an attorney is
declared to be incompetent or is alleged to be
incapacitated); or
(5) there is a need to notify another person or
organization, including the Lawyers’ Fund for Client
Security, in order to protect the public, the
administration of justice, or the legal profession.
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(d) This rule shall not be construed to:
(1) Deny access to relevant information at any point
during a proceeding under these rules to:
(i) authorized agencies investigating the
qualifications of judicial candidates,
(ii) the Judicial Conduct Board with respect to an
investigation it is conducting,
(iii) other jurisdictions investigating qualifications for
admission to practice;
(iv) law enforcement agencies investigating
qualifications for government employment;
(v) lawyer disciplinary enforcement agencies in other
jurisdictions investigating misconduct by the
respondent-attorney; or
(vi) the Pennsylvania Lawyers Fund for Client
Security Board investigating a claim for
reimbursement arising from conduct by the
respondent-attorney.
(2) Require Disciplinary Counsel to refrain from
reporting to law enforcement authorities the
commission or suspected commission of any criminal
offense or information relating to a criminal offense.
(3) Prevent the Pennsylvania Lawyers Fund for Client
Security from utilizing information obtained during any
investigation to pursue subrogated claims.
* * *
(k) If a formal proceeding results in the imposition of
private discipline or dismissal of all the charges, the
proceeding shall cease to be open to the public when the
decision to impose private discipline or dismiss the charges
becomes final, unless the respondent-attorney requests
that the record of the proceeding remain open to the
public.
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Pa.R.D.E. 402(a)-(d), (k).
In Attorney T. v Office of Disciplinary Counsel, 547 A.2d 350 (Pa.
1988), the Pennsylvania Supreme Court opined:
The confidentiality of attorney disciplinary
proceedings is well established and serves a vital function
in assisting legitimate governmental processes.
McLaughlin v. Philadelphia Newspapers, Inc., [ ] 348
A.2d 376 (Pa. 1975). McLaughlin involved an action
brought by a newspaper to vacate an impoundment order
with respect to disciplinary proceedings regarding a private
attorney who was later appointed to public office. The
newspaper sought permission to have its personnel inspect
and photograph records of the disciplinary proceeding.
This Court held that it was not a violation of freedom of the
press to deny the newspaper access to court records of
disciplinary proceedings concerning matters which were
non-criminal and non-governmental in nature, where the
proceedings were conducted with the expectation of all
concerned that unless public discipline were imposed the
proceedings would remain confidential. An impoundment
order was in accordance with standard practice and the
lawyer involved desired that confidentiality be maintained.
Id., [ ] at 382–383.
The McLaughlin Court explained the rationale for
confidentiality in disciplinary proceedings as required
by Pennsylvania Rule of Disciplinary Enforcement 17–23,
which was amended and redesignated as Pa.R.D.E. 402:
This rule, declaratory of prior practice in
Pennsylvania, reflects the considered judgment that
there is nothing to be gained and much to be lost,
where an attorney’s reputation and livelihood are
concerned, by opening to the public the record of
proceedings concerning allegations of professional
misconduct which are ultimately found to be
groundless. Additionally, even where the charges
brought against a lawyer have merit, it is often the
case that the misconduct demands discipline of no
greater magnitude than private reprimand. As a
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primary objective of such a minor penalty is the
rehabilitation of the lawyer (in addition, of course, to
the protection of the public interest), confidentiality
may be considered essential to ensure that
rehabilitative efforts are not thwarted by disclosures
which may be prejudicial. Thus, when McLaughlin as
a private practitioner appeared before the court of
common pleas to answer allegations of a non-
criminal nature concerning his private practice, he
did so with the expectation, fully warranted, that
unless public discipline were imposed, i.e.
public censure, suspension or disbarment, the
proceedings would remain confidential.
Id., [ ] at 381 (footnote omitted).
Attorney T., 547 A.2d at 352 (emphases added).
The trial court in the instant case baldly asserts “Martin’s disciplinary
history is highly relevant and thus discoverable as his ethics are a pertinent
issue in this case.” Trial Ct. Op. at 4. In the case sub judice, no public
discipline was imposed against Martin. Complaints submitted to the Board
or Disciplinary Counsel are deemed confidential unless public discipline is
imposed. See Pa.R.D.E. 209(a); 402(a)-(d), (k); Attorney T., 547 A.2d at
352. Thus, absent any indication Martin was subject to the filing of charges
or public discipline had been imposed, the trial court erred in granting the
discovery motion with respect to Martin’s disciplinary history. See Pa.R.D.E.
209(a); 402(a)-(d), (k); Attorney T., 547 A.2d at 352.
Lastly, Martin contends the trial court erred by ordering him to
produce confidential and private documents pertaining to his tax returns,
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income and finances, notwithstanding the fact that he is not asserting a
claim for loss of income or lost wages. Martin’s Brief at 29.
As a prefatory matter, we consider whether the trial court’s order
compelling production of Appellant Martin’s tax returns and financial
information is appealable as of right as a collateral order. In J.S. v.
Whetzel, 860 A.2d 1112 (Pa. Super. 2004), this Court addressed the issue
of whether an order requiring the disclosure of federal income tax forms was
reviewable as a collateral order. The Whetzel Court held that it was a
collateral order, as the three pronged test of Rule 313 was satisfied. This
Court opined:
Instantly, the August 2003 order from which [the
appellant] appeals denied him protection of his 1099
forms. The admissibility of [his] 1099 forms, whether on
procedural or evidentiary grounds, may be addressed
without analyzing [the appellant’s] alleged negligence in
the automobile accident. Thus, the issue of discovering
[the appellant’s] 1099 forms is separate from the merits of
[the p]laintiffs’ personal injury action. Turning to the
second prong, we note the current order requires [the
appellant] to submit every 1099 form he received from any
insurance company and/or attorney from 1999 through
2002. We agree [his] privacy interest in his income
information raises a sufficiently important public policy
concern. Finally, we note the instant order requires [the
appellant] to immediately produce the requested 1099
income information. Any privacy interest [the appellant]
may have in the 1099 forms will be irreparably violated if
he complies with the order and produces the documents.
Thus, the third prong of irreparable loss of claim is met.
Accordingly, we conclude the present trial court order is a
collateral order from which [the appellant] properly
appeals.
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Id. at 1117 (citations omitted). Analogously, we find the order compelling
the production of Appellant Martin’s tax returns and financial information is
appealable as a collateral order. See id. The order satisfies Rule 313’s
three-pronged test. See id.; see also Rae 977 A.2d at 1124-25 (Pa.
2009).
Martin argues that because he “has no intention of presenting any
claim for economic damages related to loss of wages or income at trial,
private and confidential documents and information relating to his income
and finances are not relevant to any of the issues in this case and should not
be subject to discovery.” Martin’s Brief at 30. Martin contends that his
“income and financial condition is wholly unrelated to his reputation.” Id. at
31.
Appellees requested, inter alia, the following documents:
13. Any and all documents relating to the damages alleged
in [Martin’s] Complaint [ ], including but not limited to all
documents related to the following:
a. Harm or damage to [Martin’s] “reputation”;
b. Exposure of [Martin] to “public contempt, hatred and
ridicule”;
c. Harm or damage to [Martin’s] “dignity, respect, esteem
and effectiveness as a lawyer and District Attorney”;
d. “Emotional distress, mental anguish, embarrassment
and humiliation” suffered by [Martin]; and
e. “[I]nterfere[nce] with [Martin’s] personal, professional
and family life.”
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14. Any and all documents relating to any aspect of
Martin’s reputation as it existed:
a. Before the Statement at Issue; and/or
b. After the Statements at Issue.
R.R. at 343a (emphases added).
Appellees’ requested the following discovery regarding Martin’s income
and finances as follows:
Interrogatory No. 3:
a. State your gross income for each of the calendar
years 2010 to present and all sources of such income;
and
b. Identify all documents which record, relate or refer to
the matters inquired of in this Interrogatory.
Document Request No. 17: Any and all documents showing
or reflecting the amounts (monetary or otherwise) earned
or received by [Martin] since 2010, including but not
limited to the following:
a. foreign, federal and state income tax returns;
b. balance sheets;
c. income statements.
Id. at 455a-456a (citations omitted).
In Count I of his complaint against Appellees, Martin seeks damages
for loss of reputation based upon Appellee Villa’s alleged false and
defamatory statements. R.R. at 23a-25a; id. at A20-A22. Martin avers:
WHEREFORE, Martin demands judgment against Villa
for compensatory damages in excess of compulsory
arbitration limits, exclusive of interest and costs, and
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punitive damages in an amount which will punish the
defendant and deter him and other similarly situated from
the commission of like acts in the future, and such other
legal and equitable relief as the [c]ourt deems appropriate.
Id. at 25a.
In Count II of the complaint, Martin asserts defamation claims against
Appellees, Walsh, iHeartCommunications, Inc., a/k/a/ Clear Channel
Communications, Inc., Capstar TX LLC, and iHeartMedia, Inc. a/k/a CC
Media Holdings, Inc. for publishing Villa’s false and defamatory statements
concerning him. Id. at 25a-26a. Martin avers in the complaint that “Walsh
and Clear Channel knew the false and defamatory statements, innuendo and
implications would damage the reputation and cause harm to Martin but
nevertheless continued to broadcast and republish such false, defamatory
and harmful statements, innuendo and implications.” Id. at 26a; id. at A23.
He seeks damages against Appellees
jointly and/or severally, for compensatory damages in
excess of compulsory arbitration limits, exclusive of
interest and costs, and punitive damages in an amount
which will punish the defendants and deter them and other
similarly situated from the commission of like acts in the
future, and such other legal and equitable relief as the
[c]ourt deems appropriate.
Id. at 26a; id. at A23.
In Sprague v. Walter, 656 A.2d 890 (Pa. Super. 1995), in a
defamation case, judgment was entered in favor of Sprague and against
Philadelphia Newspapers, Inc. (“PNI”). Id. at 896. In Sprague,
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PNI argue[d] that the trial judge erred by refusing to
compel Sprague to turn over copies of his tax returns to
PNI. PNI contends that Sprague’s income was relevant to
his claim of loss of reputation. The trial court held that
Sprague’s tax returns were irrelevant because Sprague
was not seeking damages for economic loss, but for
loss of reputation.
Id. at 914 (emphasis added). This Court agreed the tax returns were not
discoverable. Id.In the case sub judice, the trial court summarily stated:
Also, Martin’s disciplinary history is highly relevant and
thus discoverable as his ethics are a pertinent issue in this
case. The same holds true with regard to Martin’s
financials in terms of determining any harm experienced
by Martin by the alleged slanderous statements.
Trial Ct. Op. at 4.
In the instant case, as in Sprague, Martin was not seeking damages
for economic loss, but for loss of reputation. See Sprague, 656 A.2d at
914. Therefore, Martin’s income statements are not discoverable. Id. We
find the trial court erred in ordering the production of documents related to
Martin’s income since 2010. See Sabol, 37 A.3d at 1200-01.
In sum, we conclude that the trial court abused its discretion when
failing to consider CHRIA and the other privileges raised by the parties and
vacate the order to the extent it purported to overrule the objections by
Martin and the Office. The trial court shall conduct further proceedings to
determine the applicability of CHRIA or other privileges raised by the parties,
including, but not limited to, the conduct of an in camera review of the files.
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We further conclude that the trial court erred in granting discovery of
disciplinary complaints filed against Martin and Martin’s income statements
and reverse those aspects of the order.
Order vacated in part and reversed in part. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2017
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