J-S71031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TOMBEV RESTAURANT SERVICES, LLC                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

CERTAIN UNDERWRITERS AT LLOYD'S
OF LONDON

APPEAL OF: PENNSYLVANIA STATE
POLICE
                                                       No. 370 EDA 2016


                Appeal from the Order Entered December 23, 2015
           in the Court of Common Pleas of Bucks County Civil Division
                             at No(s): 2015-04040-37

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 27, 2017

        The Pennsylvania State Police (“PSP”) appeals from the order of the

Bucks County Court of Common Pleas directing PSP to disclose portions of a

PSP trooper’s report to the parties in a civil action. PSP claims the trial court

erred in finding that PSP waived its claims by failing to object to the

subpoena requesting the record and that the disclosure of the record would

not violate the Criminal History Record Information Act1 (“CHRIA”).          We

reverse.




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 9101-9183.
J-S71031-16


        On March 10, 2015, a fire damaged the Indian Rock Inn in

Nockamixon Township, forcing the business to close. The Assistant Deputy

Fire Marshal, PSP Trooper Scott A. LaBar, commenced an investigation.

        Appellee, TomBev Restaurant Services, LLC (“Appellee”), owned the

Indian Rock Inn and insured it with Certain Underwriters at Lloyd’s of

London (“Lloyd’s”).    On June 1, 2015, Appellee filed a complaint against

Lloyd’s for breach of contract and bad faith and sought over $350,000.00 in

damages. Appellee alleged Lloyd’s improperly refused to process Appellee’s

claim until PSP completed its investigation.

        On July 2, 2015, Appellee served a subpoena on Trooper LaBar,

requesting all records regarding the investigation of the fire. Trooper LaBar

responded that he would not comply due to an ongoing investigation.          On

August 13, 2015, the trial court granted Appellee’s motion to issue an order

compelling an answer to its request.       The order was served on Trooper

LaBar, but the trooper failed to respond.      Appellee filed a motion to hold

Trooper LaBar and PSP in contempt.

        On December 15, 2015, the trial court held a hearing at which it

denied Appellee’s contempt motion.2 The court found that Appellee did not

properly serve the records custodian of PSP and the trooper did not willfully

refuse to respond to the court’s order compelling an answer.



2
    Lloyd’s counsel was present at the hearing but presented no arguments.



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     During a discussion regarding Appellee’s request for the records, the

following exchange between Appellee’s counsel and the court occurred:

        [Appellee’s Counsel]:      We      only,    until  yesterday,
        received some basic information from the other side, from
        [PSP’s counsel], thankfully, but it’s not enough. . . .

        THE COURT: Are you asking that they tell what the
        investigative process is?

        [Appellee’s Counsel]: The process, what’s suspected. If
        they think somebody in particular is a suspect, they can
        redact that. But we need to know where they are in their
        process, because Lloyds of London is telling us they’re not
        going to do anything until they hear from the State Police.
        It’s been since March.

        THE COURT: I understand that. I think I’ve already ruled
        on preliminary objections that basically said Lloyds of
        London doesn’t have the right to take that position.

        [Appellee’s Counsel]: Correct.

        THE COURT: So your civil case can move forward against
        the insurer regardless of what is or is not being done by
        the State police.

        [Appellee’s Counsel]: Well, in part, Your Honor, but it’s
        difficult to move forward against the insurer when their
        reason is they’re waiting for the State Police. Both parties
        really need to know what’s going on with the investigation,
        at least in general terms.

        THE COURT: Well, I don’t see how your civil case is—Quite
        frankly, I don’t see how [Lloyd’s] can deny a claim or fail
        to process a claim just because somebody else is
        investigating. They have an . . . obligation under their
        policy to do whatever they have to do; they wrote the
        policy.

        [Appellee’s Counsel]: I agree. However, the State Police
        must have information that we can both use for purposes
        of the trial.


                                    -3-
J-S71031-16



N.T., 12/15/15, at 11-14.

      Immediately following the denial of Appellee’s contempt motion, PSP’s

counsel asserted PSP would not disclose the records without a court order.

PSP’s counsel averred an investigation was ongoing and in response to the

court’s questioning, claimed PSP was “close to the point of presenting [the

report] to the District Attorney’s office for further review and additional

investigation at their request, or a prosecutorial determination.” Id. at 20,

22.   PSP’s counsel claimed the records constituted investigative and

intelligence information, which under CHRIA, could only be disseminated to a

criminal justice agency.    Appellee asserted it was entitled to PSP’s report

based on the court’s prior order compelling an answer.        Although PSP’s

counsel offered to discuss the matter further in camera, the court directed

PSP to provide the record to the court under seal. PSP’s counsel agreed and

submitted a sealed record with a cover letter authored by counsel.

      On December 23, 2015, the trial court issued the instant order

requiring PSP to provide Appellee and Lloyd’s with copies of the record

submitted for in camera review.       The court, however, determined PSP

counsel’s cover letter and one supplemental report were protected and not




                                     -4-
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subject to disclosure. Order, 12/28/15.3 PSP timely appealed and complied

with the court’s order to submit a Pa.R.A.P. 1925(b) statement.

     The trial court authored a Rule 1925(a) opinion, in which it suggested

PSP waived all claims by failing to object to the July 2, 2015 subpoena

served on Trooper LaBar. Trial Ct. Op, 3/9/16, at 5-6 (citing McGovern v.

Hosp. Serv. Ass’n of Northeastern Pa., 785 A.2d 1012 (Pa. Super.

2001)).    In any event, the court opined only the cover letter and the

supplemental report were not subject to disclosure, but CHRIA did not

protect the remainder of the report. Id. at 7-8. The court, in relevant part,

found the remainder of the report “strictly related to the property and its

damage” and was subject to disclosure because the mere fact a record had

some connection to a criminal proceeding did not mean it constituted

“investigative material” under CHRIA. See id. at 7 (citing Pa. State Police

v. Grove, 119 A.3d 1102, 1108 (Pa. Cmwlth. 2015), appeal granted, 133

A.3d 292 (2016)).

     PSP presents the following questions for review:

          I. Did the trial court erroneously determine that [PSP]
          waived any objection to the subpoena by failing to file a
          timely objection pursuant to Pa.R.C.P. No. 4009.12?

          II. Does the trial court’s order granting disclosure of
          [PSP’s] investigative reports, in an active criminal
          investigation to a noncriminal justice agency, amount to


3
  The order was dated December 23, 2015, but was not entered until
December 28, 2015.



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         dissemination of investigative material in violation of
         [CHRIA]?

PSP’s Brief at 4.

      As a threshold matter, we conclude that we have jurisdiction over this

appeal under the collateral order doctrine.4 See Pa.R.A.P 313. An appellate

court’s jurisdiction is generally limited to a review of final orders.    See

Pa.R.A.P. 341; Rae v. Pa. Funeral Directors Ass’n, 977 A.2d 1121, 1124-

25 (Pa. 2009). However, Rule 313 provides that an appeal may be taken as

of right from a collateral order, that is, an order that is (1) “separable from

and collateral to the main cause of action[,]” (2) “the right involved is too

important to be denied review[,]” and (3) “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(a)-(b); See Rae, 977 A.2d at 1125.

      The instant order involves a claim that an investigative record was not

discoverable.   See Rae, 977 A.2d at 1126.        The propriety of the order

compelling PSP to disclose its record is separable from the main cause of

action between Appellee and Lloyd’s.     Id. at 1125.    A resolution of PSP’s

claims implicates important rights that are deeply rooted in public policy.


4
   This Court issued a rule to show cause why this appeal should not be
quashed, which was discharged after PSP filed an answer asserting that the
trial court’s order to disclose the report was a collateral order under
Pa.R.A.P. 313. PSP did not address the question of jurisdiction in its brief.
Appellee, however, asserted in its brief that PSP failed to establish
“irreparable loss of a claim if review were postponed until final judgment.”
Appellee’s Brief at 14.



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Id. at 1126. Moreover, the “disclosure of documents ‘cannot be undone,’ so

that if review is postponed, the claim will be irreparably lost.” Id. (citation

omitted).    Accordingly, we have jurisdiction to consider the issue in this

appeal. See id. at 1125.

      We summarize PSP’s claims as follows.        First, PSP asserts the trial

court erred in suggesting PSP’s failure to challenge the subpoena issued to

Trooper LaBar resulted in waiver. Appellant’s Brief at 9. PSP notes the court

found the service of the subpoena on the trooper was not proper service on

the records custodian for PSP and denied Appellee’s contempt motion. Id.

at 9-10.    PSP contends that under the circumstances, McGovern did not

support the court’s finding of waiver. Id. at 10-11.

      Second, PSP asserts the trial court erred in rejecting its CHRIA claim.

Id. at 13.    PSP contends, “Pennsylvania Courts have . . . held that the

statutory language of CHRIA strictly prohibits dissemination of investigative

information to persons not falling within the statutory definition of a criminal

justice agency.” Id. at 14. In support of its claim that CHRIA excludes the

entire record as investigative information, PSP relies on Dept. of Auditor

General v. Pa. State Police, 844 A.2d 78 (Pa. Cmwlth. 2004).                PSP

suggests the court erred by focusing on whether the nature of the

information in the report made the report disclosable.     Appellant’s Brief at

16.   It contends the determinative question is whether the report was

created and retained due to an inquiry into a criminal incident or an



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allegation of wrongdoing. Id. at 16. PSP acknowledges the Commonwealth

Court’s decision in Grove. Id. at 17. PSP asserts Grove is distinguishable

because the instant report contains “the step by step narrative of the PSP

investigation and all of the systematic steps taken by the PSP, including the

steps to determine the causation of the fire[,]” as well as witness

statements. Id. at 18-19.

       Appellee first responds that the question of waiver due to PSP’s failure

to object to the subpoena “is moot.” Appellee’s Brief at 13. Appellee next

asserts that the discovery order “flowed directly from [a] voluntary, knowing

full[y] competent agreement between the parties,” which included Appellee’s

concession that the disclosure should not include “‘identifiable descriptions’

or identifiable information about particular people under investigation.” Id.

at 12. Appellee notes the contested report has not been disclosed to it and

PSP did not submit an affidavit seeking a protective order.      Nevertheless,

Appellee suggests the trial court did not abuse its discretion when ordering

disclosure. Id. at 16-17.

       For the reasons set forth below, we agree with PSP that its failure to

challenge the subpoena did not waive its claim. Moreover, we find Grove

does not support the trial court’s conclusion that the report was not

investigative information.   Lastly, we conclude the court’s order cannot be

sustained under an analysis of a common law privilege. Thus, PSP is entitled

to relief.



                                     -8-
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        As to the trial court’s finding of waiver, it is well settled that the failure

to timely object to a subpoena need not automatically result in the waiver of

a claim of privilege. See McGovern, 785 A.2d at 1019. Instantly, the trial

court properly found a PSP’s legal records custodian was not served with the

subpoena. See Commonwealth v. Friday, 90 A.2d 856, 860 (Pa. Super.

1952) (noting “[t]he executive head of the State Police, the Commissioner of

the State Police, is the legal custodian of [PSP] records”).          PSP raised its

claim at the first opportunity following the trial court’s denial of Appellee’s

request for sanctions.      Moreover, in an attempt to expedite the discovery

process, the court denied PSP’s request for further “discussion” and directed

PSP to submit the report for the court’s independent review. Under these

circumstances, we conclude waiver is not appropriate, and we will review the

court’s rulings on the issue of disclosure.         See McGovern, 785 A.2d at

1019.

        This Court has stated:

              Generally, in reviewing the propriety of a discovery
           order, our standard of review is whether the trial court
           committed 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).




                                         -9-
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      “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) (quotation marks omitted).        “Discovery itself is designed to

promote free sharing of information so as to narrow the issues and limit

unfair surprise. It is a tool which serves each litigant and promotes judicial

economy.” Id. at 1245 (citation omitted).

      “CHRIA concerns the collection, maintenance, dissemination and

receipt of criminal history record information.” Mitchell v. Office of Open

Records, 997 A.2d 1262, 1265 (Pa. Cmwlth. 2010).             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 information.” 18 Pa.C.S. § 9103.

      CHRIA’s     definition   of   criminal   history   information    excludes

investigative information, the latter of which is defined as follows:

         “Investigative information.” Information assembled as
         a result of the performance of any inquiry, formal or
         informal, into a criminal incident or an allegation of
         criminal wrongdoing and may include modus operandi
         information.

Id. § 9102.

      Section 9106(c), entitled “Dissemination of protected information”

provides in relevant part:

         Investigative and treatment information shall not be
         disseminated to any department, agency or individual


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        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.

Id. § 9106(c)(4). “Dissemination” for the purposes of CHRIA means “[t]he

oral or written transmission or disclosure of criminal history record

information to individuals or agencies other than the criminal justice agency

which maintains the information.” Id. § 9102.

     In Grove, the requester submitted a Right to Know Law5 (“RTKL”)

request to PSP seeking copies of a police report, as well as any audio and

video recordings taken at the location of a motor vehicle accident. Grove,

119 A.3d at 1104. PSP responded by providing the requester with a Public

Information Release Report, but withholding the other records. Id. at 1104-

05. PSP claimed, in relevant part, that the records it withheld were criminal

investigative records exempt from disclosure under the RTKL. Id. at 1105.

The requester appealed to the Office of Open Records, which, in turn,

directed PSP to provide the requester with recordings. Id. PSP appealed to

the Commonwealth Court and argued the video recordings were exempt as

investigative records under the RTKL, as well as CHRIA. Id.


5
  65 P.S. §§ 67.101-67.3104. The RTKL provides for the disclosure of public
records. However, “[a] record of an agency relating to or resulting in a
criminal investigation” is exempted from disclosure.       65 Pa.C.S. §
67.708(b)(16).




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      On appeal, in Grove, PSP submitted an affidavit indicating the

recordings at issue were mobile vehicle recordings (“MVRs”) from equipment

on the vehicles of the two PSP troopers who responded to the scene of the

accident.    Id. at 1106.     The MVRs were activated when the troopers

activated their emergency lights or siren.        Id.    The first trooper’s MVR

showed the trooper speaking to the drivers involved in the accident and

directing one of the drivers to move his vehicle, but did not contain an audio

recording.    Id.   The second trooper’s MVR contained audio and visual

components and recorded the trooper’s interviews of the two drivers and

bystanders. Id.

      The Grove Court initially rejected PSP’s arguments that the MVRs

were investigative records because at least one of the troopers investigated

the accident and the accident resulted in the issuance of traffic citations. Id.

at 1108. The Court noted:

         The mere fact that a record has some connection to a
         criminal proceeding does not automatically exempt it
         under Section 708(b)(16) of the RTKL or CHRIA. The
         types of records that we have held protected from RTKL
         disclosure under Section 708(b)(16) and CHRIA as
         investigative are records created to report on a criminal
         investigation or set forth or document evidence in a
         criminal investigation or steps carried out in a criminal
         investigation.

Id. (citations omitted).    The Court determined the MVRs were “created to

document     troopers’   performance   of     their   duties   in   responding   to

emergencies and in their interactions with members of the public, not merely



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or primarily to document, assemble or report of evidence of a crime or

possible crime.”   Id.   The Court concluded, “[T]he MVRs themselves are

therefore not investigative material or videos, investigative information, or

records relating or resulting in a criminal investigation . . . .” Id.

      The Grove Court proceeded to examine alleged contents of the MVRs

to determine whether they contained investigative materials that could be

redacted. Id. at 1109. The Court determined audio recordings of witness

interviews were investigative materials, which would be subject to redaction

under the RTKL and CHRIA.        Id. at 1110.    Although the Court concluded

other portions of the other MVR was not investigatory, it noted “PSP d[id]

not contend that th[e] MVR shows any measurements, collection of

evidence, physical inspection or analysis of what the accident scene

showed.” Id. at 1109.

      Instantly, the report that was submitted under seal by the PSP is

precisely the type of material the Commonwealth Court indicated is

investigative. See id. at 1109-10. As the Grove Court, noted the RTKL and

CHRIA protect “records created to report on a criminal investigation or set

forth or document evidence in a criminal investigation or steps carried out in

a criminal investigation.” Id. at 1108 (citations omitted). Unlike the MVRs

in Grove, the report here was created for an investigation, contained

witness interviews, and summarized facts collected during the investigation.




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See id. at 1110.       Therefore, the trial court’s analysis and application of

CHRIA as a basis for compelling disclosure cannot stand.

      PSP’s reliance on CHRIA’s prohibition on disclosure raises a separate

question, namely, whether CHRIA creates evidentiary privilege during a

discovery proceeding in which PSP is not a party.

      This Court has stated:

         [O]ur law disfavors evidentiary privileges because “they
         operate in derogation of the search for truth.”
         Nonetheless, our courts will faithfully adhere to
         constitutional, statutory, or common law privileges.

             [W]here the legislature has considered the interests
             at stake and has granted protection to certain
             relationships or categories of information, the courts
             may not abrogate that protection on the basis of
             their own perception of public policy unless a clear
             basis for doing so exists in a statute, the common
             law, or constitutional principles.

McLaughlin v. Garden Spot Village, 144 A.3d 950, 953 (Pa. Super. 2016)

(citations omitted).

      CHRIA, like the RTKL, provides for disclosure of records, but protects

investigative information from disclosure or dissemination. See Grove, 119

A.3d at 1108. However, the General Assembly’s intent to withhold certain

information from the public domain alone does not create an evidentiary

privilege.   See Ben v. Schwartz, 729 A.2d 547, 553-54 (Pa. 1999)

(asserting the RTKL is not applicable to discovery proceedings under the

Pennsylvania Rules of Civil Procedure); McLaughlin 144 A.3d at 953

(discussing whether Older Adults Protective Services Act, 35 P.S. §§


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10225.101-10225.5102 gives rise to an privilege); Kauffman, at 605 A.2d

at 1246 (noting, with respect to RTKL, that “the fact that the legislature

excluded certain documents from public inspection does not mean that the

legislature intended to bar the use of such information in judicial

proceedings.”).

     Although     CHRIA    contains   administrative   and   civil   penalties   for

disclosures against its provisions, its status as an absolute privilege under

the circumstances of the instant case is not entirely clear.            Therefore,

because we may affirm on any basis, and in an abundance of caution, we

address whether the trial court’s order compelling disclosure comported with

a common law privilege.6

     The Pennsylvania Supreme Court has recognized:

        [F]ederal courts, on occasion, have identified a common
        law “executive” or “governmental” privilege which they
        have relied upon to protect information from being
        discovered during ongoing government investigations.
        Thus, . . . the federal court for the eastern district of
        Pennsylvania defined the “executive privilege” as “the
        government’s privilege to prevent disclosure of certain
        information whose disclosure would be contrary to the
        public interest.” This privilege, however, is not absolute
        but qualified; and when asserted, requires the court to
        balance the government’s interest in ensuring the secrecy
        of the documents whose discovery is sought against the
        need of the private litigant to obtain discovery of relevant
        materials in possession of the government.


6
 Although PSP arguably waived a claim based on a common law privilege,
we reiterate that the process leading to the resolution of PSP’s claims for
non-disclosure was expedited.



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Ben, 729 A.2d at 553.

     As the Commonwealth Court further suggested:

              To support a claim for the [executive] privilege, at
           least three requirements must be fulfilled. . . . “The
           head of the agency claiming the privilege must
           personally review the material, there must be a
           ‘specific designation and description of the
           documents claimed to be privileged,’ and there must
           be ‘precise and certain reasons for preserving’ the
           confidentiality of the communications. Usually such
           claims must be made by affidavit.[ ]”

                                *     *      *

           In considering [a claim of executive privilege], we are
        guided by the District Court’s decision in Frankenhauser
        v. Rizzo, [59 F.R.D. 339 (E.D. Pa. 1973),] which identified
        ten factors that federal courts consider when balancing the
        interests of the government in ensuring the secrecy of
        documents against the need of a private party to obtain
        discovery:

           (1) the extent to which disclosure will thwart
           governmental processes by discouraging citizens
           from giving the government information;

           (2) the impact upon persons who have given
           information of having their identities disclosed;

           (3) the degree to which governmental self-evaluation
           and consequent program involvement will be chilled
           by disclosure;

           (4) whether the information sought is factual data or
           evaluative summary;

           (5) whether the party seeking the discovery is an
           actual or potential defendant in any criminal
           proceeding either pending or reasonably likely to
           follow from the incident in question;




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           (6) whether     the   police    investigation   has   been
           completed;

           (7) whether any intradepartmental disciplinary
           proceedings have arisen or may arise from the
           investigation;

           (8) whether the Petitioner’s suit is non-frivolous and
           brought in good faith;

           (9) whether the information sought is available
           through other discovery or from other sources; and

           (10) the importance of the information sought to the
           Petitioner’s case.

        Frankenhauser, 59 F.R.D. at 344.

See Van Hine v. Dept. of State of Com., 856 A.2d 204, 208-10 (Pa.

Cmwlth. 2004) (some citations omitted).

     Instantly, the trial court suggested:

        [Appellee] is seeking the records to establish the status of
        its damaged property at the time the damage occurred and
        the origin of the fire that destroyed it. The records that
        have been ordered to be disclosed to [Appellee] strictly
        relate to the property and its damage.           When the
        undersigned conducted in camera review, two documents
        were identified that relate to the alleged ongoing criminal
        investigation. Despite the fact that we could have held
        that the PSP had waived any objection to those
        documents, we exempted them from disclosure.            The
        remaining documents that were found discoverable do not
        amount to “investigative material.”

                                 *     *      *

           Here, the documents to be disclosed are relevant. They
        relate directly to a property that was damaged in a fire.
        The property belongs to [Appellee] and is insured by
        Certain Underwriters. [Appellee] is engaged in a lawsuit
        with Certain Underwriters to recover the proceeds of a


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J-S71031-16


         commercial property insurance policy that applied to the
         property. [T]hese documents share the same subject
         matter with the underlying lawsuit.

         [W]e determined with sound discretion that the documents
         to be disclosed logically tend to establish a material fact in
         the case or tends to make a fact at issue more or less
         probable.

Trial Ct. Op. at 8-9.

      The trial court’s findings that the portions of the record, which it

ordered disclosed, strictly relate to the property and its damage lacks

support. Even if the record contained factual data, the report constitutes an

evaluative   summary.      Additionally,   PSP’s   counsel   asserted     that   an

investigation was ongoing and PSP was “close to the point of” presenting its

report to the District Attorney. N.T. at 20, 22. These factors weigh in favor

of nondisclosure.

      Moreover, although the trial court suggested the information contained

in the report was relevant to Appellee’s action against Lloyd’s, that analysis

falls short of a determination that the report was important or unavailable to

Appellee through other means. To the contrary, the court indicated that it

overruled Lloyd’s preliminary objections to Appellee’s complaint because

Lloyd’s did not “have the right to” assert that it would not process Appellee’s

claim until they received the PSP report. See id. at 12-13. Thus, we cannot

conclude that Appellee’s private interest in the disclosure of the report

outweighs PSP’s interests in nondisclosure.




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      In sum, we have reviewed the application of the statutory and

common law principles at issue in this appeal and discern no basis to affirm

the trial court’s order to compel PSP’s disclosure of the report.

      Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/27/2017




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