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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.



                                       -2-
J-A31044-16


                                 *    *    *

             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.




                                     -3-
J-A31044-16


           [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.




                                      -4-
J-A31044-16


           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.




                                       -5-
J-A31044-16



           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



                                        -6-
J-A31044-16


        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).



                                     -7-
J-A31044-16


      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:



                                     -8-
J-A31044-16


      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).




                                       -9-
J-A31044-16


         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,




                                    - 10 -
J-A31044-16


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


                                           - 11 -
J-A31044-16


        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).



                                  - 12 -
J-A31044-16



           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




                                     - 13 -
J-A31044-16


           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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J-A31044-16



          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.




                                   - 15 -
J-A31044-16


            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




                                       - 16 -
J-A31044-16


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.



                                        - 17 -
J-A31044-16


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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J-A31044-16


       (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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J-A31044-16



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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J-A31044-16


            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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J-A31044-16


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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J-A31044-16


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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J-A31044-16


        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


                                   - 25 -
J-A31044-16


         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,




                                    - 26 -
J-A31044-16


         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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J-A31044-16


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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