J-A26038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: TRUST UNDER DEED OF TRUST          :      IN THE SUPERIOR COURT OF
OF SARAH MELLON SCAIFE, SETTLOR           :            PENNSYLVANIA
DATED DECEMBER 30, 1935                   :
                                          :
                                          :
                                          :
APPEAL OF: TRIB TOTAL MEDIA, INC.         :           No. 243 WDA 2016

                    Appeal from the Order January 14, 2016
              in the Court of Common Pleas of Allegheny County,
                  Orphans’ Court Division, No(s): 6469 of 2014

BEFORE: BENDER, P.J.E., RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 28, 2017

      Trib Total Media, Inc. (“TTM”) appeals from the Order of the Orphans’

Court, which denied TTM’s Motion to reconsider the court’s Order denying

TTM’s Motion to Quash Subpoena and for Protective Order (“Motion to

Quash”).1 We affirm.

      In its Opinion, the Orphans’ Court set forth the relevant history of the

instant appeal as follows:

             Jennie Scaife and David Scaife (Petitioners) brought an
      action [in 2014] for an accounting of the Trust Under Deed of
      Trust of Sarah Mellon Scaife, Settlor, dated December 30, 1935.
      Petitioners allege that Trustees H. Yale Gutnick, James N.
      Walton, and PNC Bank [“Trustees”], inter alia, improperly


1
  “[D]iscovery orders rejecting claims of privilege and requiring disclosure
constitute collateral orders that are immediately appealable under
[Pa.R.A.P.] 313.” Commonwealth v. Flor, 136 A.3d 150, 155 (Pa. 2016);
see also Dodson v. Deleo, 872 A.2d 1237, 1240 (Pa. Super. 2005)
(recognizing the appealability of an order requiring the disclosure of
privileged information because, “once disclosed, the confidentiality of
potentially privileged information is irreparably lost.”).
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      distributed Trust corpus to fund [TTM’s] operations. Following
      the filing of an accounting, Petitioners filed objections to the
      funding of TTM.

            [On November 4, 2015, Petitioners served Notice of their
      intent to subpoena TTM, and compel the production of certain
      records. Trustees filed no objections to Petitioners’ Notice.] On
      December 3, 2015, Jennie Scaife served a subpoena on TTM for
      the production of documents. On December 18, 2015, TTM filed
      a Motion to Quash []. A supporting brief filed that same day
      argued that the documents and information sought via subpoena
      were not relevant to the claims and defenses of the case, and
      the production of documents would subject TTM to unreasonable
      annoyance, embarrassment, burden, and expense.

            On December 21, 2015, [the Orphans’] Court issued an
      Order that Jennie Scaife file a response to TTM’s pleadings on or
      before January 6, 2016,2 and setting argument for January 14,
      2016. On January 6, 2016, both Petitioners filed a Response in
      Opposition to [TTM’s] Motion to Quash [].

            On January 12, 2016, TTM filed a Reply to Petitioners’
      response in Opposition to Motion to Quash ….3 Within this
      [R]eply, in argument 2(b) located on page 11 of TTM’s filing,
      TTM for the first time raised the issue that Petitioner’s subpoena
      would cause the disclosure of confidential and proprietary
      information. On January 14, 2016[,] this Court heard argument
      on the matter and subsequently issued an Order denying the
      requested relief.

           On January 15, 2016, TTM filed a Motion for Partial
      Reconsideration of the January 14, 2016 Order with Respect to
      Records after October 2011.4     On January 19, 2016, both

2
 David N. Scaife had not served a subpoena on TTM for the production of
documents.
3
  The filing occurred twenty-five (25) days after TTM filed its initial [M]otion
and supporting brief. The Orphans’ Court had not granted leave permitting
the filing.
4
  This [M]otion for partial reconsideration added a new argument into the
mix[,] not previously raised[,] concerning records generated after October
2011.


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      Petitioners filed a Response. On January 21, 2016, the Court
      denied the [M]otion to reconsider. On February 16, 2016, TTM
      filed a Notice of Appeal.

Orphans’ Court Opinion, 4/8/16, at 1-2 (footnotes in original).

      On appeal, TTM presents the following claims for our review:

      1. TTM argued that the Court should not compel TTM to produce
      its confidential and proprietary information in a litigation to
      which it is not a party in its Brief in Support of its [M]otion to
      Quash, its Reply Brief in Support of its Motion to Quash, and at
      Oral Argument regarding its Motion to Quash. It has also
      included that position in its Concise Statement of Errors. Has
      TTM preserved this issue for appeal?

      2. The [s]ubpoena seeks TTM’s trade secret, proprietary and
      confidential information[,] such that its competitors could take
      advantage of such information and significantly harm TTM in the
      marketplace.     … Under [the Superior] Court’s reasoning in
      Berkeyheiser,[5] does the sensitive, confidential and proprietary
      nature of the subpoenaed documents outweigh the limited value
      of the information sought from non-party TTM[,] such that the
      [s]ubpoena should have been quashed?

      3. Petitioners advance objections to the Account[,] which all
      relate to the state of mind of the [T]ustees. TTM does not
      possess documents which could possibly show the state of mind
      of the [T]rustees.     Should discovery of TTM’s irrelevant
      documents have been precluded?

      4. Petitioners advance objections to trust distributions made
      prior to October 2011. All distributions of trust principal and
      income were complete by July 2014. Should discovery of TTM’s
      documents that post-date all relevant events have been
      precluded?

Brief for Appellant at 3-4 (issues renumbered, some extraneous argument

omitted, footnote added).


5
  Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117 (Pa.
Super. 2007).


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         TTM first claims that it properly preserved its challenge to the

subpoena based upon its claim that the subpoena would require the

production of TTM’s “confidential” and “proprietary” information. Id. at 22.

According to TTM, it “raised this argument on multiple occasions in

connection with its Motion to Quash before the [Orphans’ Court].” Id. TTM

takes issue with the Orphans’ Court’s statement that TTM had waived its

claim because it was not asserted in TTM’s Motion to Quash Subpoena and

for Protective Order, or in TTM’s Opening Brief in support of its Motion. Id.

at 23.

         “Generally, on review of an order concerning discovery, an appellate

court applies an abuse of discretion standard.” Berkeyheiser, 936 A.2d at

1125 (citations omitted). “To the extent that the question involves a pure

issue of law, our scope … of review [is] plenary.” Id.

         Similarly, “the standard of review regarding a motion to quash a

subpoena is whether the [Orphans’ Court] abused its discretion.” Leber v.

Stretton, 928 A.2d 262, 266 (Pa. Super. 2007).           Regarding requests for

protective orders,

         [t]here are no hard-and-fast rules as to how a motion for a
         protective order is to be determined by the court. Whether to
         grant or deny the motion, and what kind or kinds of protective
         orders to issue are matters that lie within the sound judicial
         discretion of the court, and the court’s determination as to these
         matters will not be disturbed unless that discretion has been
         abused.




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Hutchison v. Luddy, 606 A.2d 905, 908 (Pa. Super. 1992) (internal

citations and quotations omitted). An abuse of discretion is not merely an

error of judgment; it is judgment which is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will as shown by evidence of record.

Fanning v. Davne, 795 A.2d 388, 393 (Pa. Super. 2002).

        Under Pa.R.C.P. 4003.1,6 “discovery is liberally allowed with respect to

any matter, not privileged, which is relevant to the cause being tried.” Berg

v. Nationwide Mutual Ins. Co., Inc., 44 A.3d 1164, 1178 n.8 (Pa. Super.

2012).

        Any party may serve … a subpoena upon a person not a party
        pursuant to Rules 4009.21 through 4009.27 to produce and
        permit the requesting party, or someone acting on the party’s
        behalf, to inspect and copy any designated documents (including
        writings,    drawings,   graphs,    charts,   photographs,   and
        electronically stored information), or to inspect, copy, test or
        sample any tangible things or electronically stored information,
        which constitute or contain matters within the scope of Rules
        4003.1 through 4003.6 inclusive and which are in the
        possession, custody or control of the party or person upon whom
        the request or subpoena is served, and may do so one or more
        times.




6
    Orphans’ Court Rule 3.6 provides that

        [t]he local Orphans’ Court … may prescribe the practice relating
        to … discovery [and the] production of documents …. To the
        extent not provided for by such general rule or special order, the
        practice relating to such matters shall conform to the practice in
        the Trial or Civil Division of the local Court of Common Pleas.

Pa.O.C.R. 3.6.



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Pa.R.C.P. 4009.1(a). A party may object to a notice to serve a non-party

with a subpoena for the production of documents, “by filing of record and

serving a copy of the objections upon every other party to the action.”

Pa.R.C.P. 4009.21(c). If objections are not received, “the subpoena may be

served subject to the right of any party or interested person to seek a

protective order.” Pa.R.C.P. 4009.21(c)(2).

     Rule 234.4 provides that

     a motion to quash a subpoena ... or notice to produce may be
     filed by … the person served or by any other person with
     sufficient interest. After [a] hearing, the court may make an
     order to protect a party, witness or other person from
     unreasonable annoyance, embarrassment, oppression, burden or
     expense.

Pa.R.C.P. 234.4(b); see also Pa.R.C.P. 4012(a) (stating that, “[u]pon

motion by … the person from whom discovery or deposition is sought, and

for good cause shown, the court may make any order which justice requires

to protect a party or person from unreasonable annoyance, embarrassment,

oppression, burden or expense ….”).     Nevertheless, “evidentiary privileges

have been viewed by [the Pennsylvania Supreme] Court to be in derogation

of the search for truth, and are generally disfavored for this reason.”

Octave v. Walker, 103 A.3d 1255, 1262 (Pa. 2014). As such, “evidentiary

privileges are to be narrowly construed[.]” Id.

      Here, no party filed objections to Petitioners’ Notice of their intention

to serve TTM with a subpoena. TTM responded to the subpoena by filing its

Motion to Quash, which asserted two bases for relief:      (1) the documents


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J-A26038-16


sought by the subpoena were irrelevant; and (2) production of the requested

documents would subject TTM “to unreasonable annoyance, embarrassment,

burden, and expense.” Motion to Quash Subpoena, 12/21/16. In its Brief

supporting the Motion to Quash, TTM argued that the documents sought

were not relevant to the pending action, and not reasonably calculated to

lead to the discovery of admissible evidence. Brief in Support of Motion to

Quash, 12/21/15, at 3. TTM generally asserted that the discovery sought by

the subpoena “would cause unreasonable annoyance, embarrassment,

burden and expense to TTM.” Id. at 6 (initial capitalization omitted). TTM

described the information sought as private, highly sensitive financial

business records and information, dating back 24 years. Id. at 6-7. TTM

further argued that

     [p]roducing these documents and information, if even possible,
     would cause extreme burden, expense, and annoyance to TTM—
     to say nothing of the embarrassment of having the entirety of its
     financial and business records, including documents relating to
     losses to TTM, spanning more than two decades[,] made
     available to the parties of a civil action to which TTM itself is not
     even a party. There is also a concern that such private internal
     and highly sensitive information would be made public….

Id. at 7.   Petitioners filed a Response to TTM’s Motion to Quash and

supporting brief, addressing TTM’s challenge to the relevance of the

documents requested, and TTM’s claim of undue burden, hardship and

embarrassment.

     On January 14, 2016, TTM filed a Reply to the Petitioners’ Response

(“TTM’s Reply”). On page 11 of TTM’s Reply, TTM, for the first time, claimed


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J-A26038-16


that the subpoena sought confidential and proprietary information.          TTM’s

Reply at 11.

       In its Opinion, the Orphans’ Court declined to consider TTM’s claim

that   the   subpoenaed   records    contained   confidential   and   proprietary

information:

       [T]his issue was not raised in TTM’s initial [M]otion and
       supporting brief. In fact, said issue was only brought before [the
       Orphans’] Court in TTM’s [R]eply [], which was filed less than 48
       hours before the scheduled argument. The [c]ourt considers this
       argument waived because it was untimely raised in a reply
       pleading, which was not authorized by the [c]ourt, and because
       the Petitioners were not afforded ample opportunity to address
       the issue. Further, had the issue been properly raised, a hearing
       would have been held with respect to the alleged confidentiality
       of said information. Since this particular objection filed by TTM
       was not timely raised before this [c]ourt, it is waived for appeal
       purposes.

Orphans’ Court Opinion, 4/8/16, at 2-3. The record supports the Orphans’

Court’s determination, and we discern no abuse of discretion in this regard.

We therefore adopt the Orphans’ Court’s reasoning, and affirm its resolution

of TTM’s claim on the basis of this reasoning, as set forth above. See id.

       In its second claim, TTM argues that the Orphans’ Court improperly

failed to engage in the “required analysis under Berkeyheiser[,]” in

denying its Motion to Quash.           Brief for Appellant at 14.          Under

Berkeyheiser, TTM asserts, the relevancy of the requested information is

not assumed. Id. at 15. Rather, TTM argues that the court addressing a

motion to quash must “(1) require the subpoenaing party to establish that

the information sought is likely to lead to the discovery of admissible


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J-A26038-16


information, and (2) balance the privacy interests of the moving party

against   the   subpoenaing   party’s   asserted   need   for   the   requested

documents.”     Id. at 14.    According to TTM, under Berkeyheiser, the

discovery sought from TTM should have been disallowed. Id. at 16.

      TTM contends that the subpoena “seeks a vast amount of confidential,

proprietary and trade secret information from TTM.” Id. at 17. TTM argues

that the risk to TTM is particularly strong, in that the subpoena did not limit

the requested documents to the period relevant to the objections, thereby

requiring TTM to produce its current proprietary information.         Id.   TTM

further argues that the Protective Order, put in place three months prior to

the subpoena, is not adequate to protect TTM’s interests. Id. at 18. TTM

points out, as support, a statement by Petitioners’ counsel at argument that,

“if [the prior Protective Order] is not satisfactory to [TTM’s counsel], we

could do other aspects of a confidential agreement, but there are ways to

address that as well.” Id. at 19 (citation omitted). TTM asserts that it was

not involved in the drafting of the Protective Order, and that the Order does

not include the ability to designate certain documents as “attorneys-eyes

only, which is the level of protection necessary for TTM to protect the

confidentiality of its most sensitive documents[,] specifically as it relates to

TTM’s competitors.” Id. TTM further discusses the burden it would face in

protecting the information sought in future court proceedings and filings.

Id. at 19-21.



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      “The trial court is responsible for [overseeing] discovery between the

parties and[,] therefore[,] it is within that court’s discretion to determine the

appropriate measure necessary to insure adequate and prompt discover[y]

of matters allowed by the Rules of Civil Procedure.” PECO Energy Co. v.

Ins. Co. of N. Am., 852 A.2d 1230, 1233 (Pa. Super. 2004) (citation

omitted); accord Berkeyheiser, 936 A.2d at 1125. Regarding the scope of

discovery, Pennsylvania Rule of Civil Procedure 4003.1 provides that,

      (a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive
      and Rule 4011, a party may obtain discovery regarding any
      matter, not privileged, which is relevant to the subject matter
      involved in the pending action, whether it relates to the claim or
      defense of the party seeking discovery or to the claim or defense
      of any other party ….

      (b) It is not ground for objection that the information sought will
      be inadmissible at trial if the information sought appears
      reasonably calculated to lead to the discovery of admissible
      evidence.

Pa.R.C.P. 4003.1(a), (b). Thus, discovery “is liberally allowed with respect

to any matter, not privileged, which is relevant to the cause being tried.”

George v. Schirra, 814 A.2d 202, 205 (Pa. Super. 2002) (citations

omitted).   However, no discovery or deposition shall be permitted which

“would cause unreasonable annoyance, embarrassment, oppression, burden

or expense to the deponent or any person or party;” “is beyond the scope of

discovery as set forth in Rules 4003.1 through 4003.6;” or “would require




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the making of an unreasonable investigation by the deponent or any party or

witness.” Pa.R.C.P. 4011(b), (c), (e).

      Upon review, we conclude that TTM’s reliance upon Berkeyheiser is

misplaced. In Berkeyheiser, this Court held that the trial court had erred

in allowing the plaintiffs’ broad discovery requests, when the information

requested purportedly would include “privileged materials and private

information” relating to the defendants’ clients.7 Berkeyheiser, 936 A.2d at

1119. This Court further reasoned that

      privacy interests protected by the federal Constitution receive
      the same protections from Pennsylvania’s Constitution. Cases
      concerning the constitutional right to privacy involve two
      separate interests: (1) the individual interest in avoiding
      disclosure of personal matters; and (2) the interest in making
      certain kinds of important decisions. However, the right [to
      privacy] is not an unqualified one; it must be balanced against
      weighty competing private and state interests.

Id.

      Here, TTM waived its claim that the requested discovery should be

restricted because of its confidential and proprietary nature. See Orphans’

Court Opinion, 4/8/16, at 3.    Consequently, TTM’s challenge based upon

Berkeyheiser, and the balancing test appropriate when confidential,

proprietary and/or constitutionally protected information is involved, is not

applicable.

7
  Ultimately, this Court agreed with the defendant that “many of [the
plaintiff’s] discovery requests are so broad that they necessarily include
disclosure of communications between attorneys and clients,” and thus that
the information was not discoverable under the attorney-client privilege. Id.
at 1125.


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      In its third claim, TTM argues that the Orphans’ Court improperly

denied its Motion to Quash, because the information sought is not relevant

to Petitioners’ claims. Brief for Appellant at 27, 28. TTM asserts that the

Trustees’ state of mind and motives can only be determined based upon

information actually considered by the Trustees.          Id. at 28, 29.     TTM

additionally   contends   that   the   Orphans’   Court   should   have   directed

Petitioners first to seek the information from the Trustees. Id. at 30.

      Regarding TTM’s claim, the Orphans’ Court stated the following:

      The financial records of TTM are, however, relevant both to
      Petitioners’ claims and the possible defenses of the Trustees.
      For instance, Petitioners argue that no reasonable trustee would
      distribute trust principle to fund a business such as TTM[,]
      because the amounts needed to fund the business would
      continue to increase year after year.       Petitioners want the
      financial documents, so that they can prove what the Trustees
      knew or should have known, when they knew it or should have
      known it, and the reasonableness of their actions[,] in light of
      the information they had. The Petitioners would be hampered in
      putting forth their case as to a breach of fiduciary duty or a
      waste of trust assets if the information requested in the
      subpoena was not turned over by TTM.

Orphans’ Court Opinion, 4/18/16, at 3. Discerning no abuse of discretion or

error, we agree with and adopt the reasoning of the Orphans’ Court, and

affirm on this basis. See id.

      In its fourth and final claim, TTM argues that the Orphans’ Court

improperly denied its Motion to Quash as to documents that post-date the

challenged distributions.    Brief for Appellant at 31.       TTM argues that

Petitioners did not challenge distributions taking place after October 2011



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and, therefore, such documents are irrelevant. Id. TTM further asserts that

the Orphans’ Court improperly denied its Motion to Quash as to documents

dated after July 2014.   Id.   TTM disputes the Orphans’ Court’s conclusion

that its claims are waived, based upon TTM’s failure to raise them until its

Motion for Partial Reconsideration and its Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal. Id. at 32.

      The Pennsylvania Rules of Appellate Procedure provide that an issue

cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). Further, an

issue is not preserved when it is first raised in a motion for reconsideration

or in a Pa.R.A.P. 1925(b) concise statement. See Mason-Dixon Resorts,

L.P. v. Pa. Gaming Control Bd., 52 A.3d 1087, 1112 (Pa. 2012) (deeming

waived an issue not raised until a motion for reconsideration); Hinkal v.

Pardoe, 133 A.3d 738, 746 (Pa. Super. 2016) (en banc) (stating that an

issue is not preserved for review when it is first raised in the Pa.R.A.P.

1925(b) concise statement).

      Upon review, we discern no abuse of discretion or error by the

Orphans’ Court in deeming these claims waived.          See Orphans’ Court

Opinion, 4/18/16, at 3-4 (stating that because the Orphans’ Court first

became aware of TTM’s claim (regarding the records generated after October

2011) in TTM’s Motion for partial reconsideration, and of the claim regarding

the records generated after October 2014 in the Rule 1925(b) Concise

Statement, the claims are now waived).



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     Accordingly, we affirm the Order of the Orphans’ Court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




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