IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tullytown Borough, :
: No. 239 C.D. 2015
Appellant : Argued: October 6, 2015
:
v. :
:
Edward Armstrong, Robert :
Campanaro, Edward Czyzyk, and :
George Fox :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION
BY SENIOR JUDGE FRIEDMAN FILED: December 11, 2015
Tullytown Borough (Borough) appeals from the January 15, 2015, order
of the Court of Common Pleas of Bucks County (trial court) denying the Borough’s
motion for a protective order.1 We affirm based on the trial court’s opinion.
Edward Armstrong, Robert Campanaro, Edward Czyzyk, and George
Fox (Appellees) filed a writ of summons commencing a civil rights action pursuant to
42 U.S.C. §1983 against the Borough. Thereafter, by letter dated September 30,
1
The Borough filed a motion to certify this interlocutory order for appeal by permission, but
the trial court denied it pursuant to section 702(b) of the Judicial Code, 42 Pa. C.S. §702(b). By
order dated March 30, 2015, this court granted the Borough’s petition for review of the
interlocutory order pursuant to Pa. R.A.P. 1311, Note.
2014, Appellees sought to depose nine Borough employees.2 The letter identified the
individuals but failed to indicate the reasons for the depositions.
On October 30, 2014, the Borough filed a motion for a protective order,
arguing that Appellees’ request for pre-complaint discovery, i.e., the letter asking to
depose the nine witnesses, is expansive and without justification. The Borough stated
that Appellees failed to explain how the depositions are material and necessary to the
filing of a complaint and pointed out Appellees’ history of abusive litigation.
According to the Borough, Appellees’ lawsuit is frivolous and a “fishing expedition”
to gain information for use in the upcoming election. (Borough’s Mot., 10/30/14, at
1-3.)
Appellees responded that they requested pre-complaint discovery,
pursuant to Pa. R.C.P. No. 4003.8, to obtain material and necessary facts to plead a
violation of Appellees’ civil and constitutional rights. (Appellees’ Reply, 11/14/14,
at 1-3.) In their memorandum of law in support of their pre-complaint discovery
request, Appellees contended that they “have reason to believe that [Borough] Police
Officers were spying on campaign meetings of [Appellees], who were candidates for
[B]orough Council positions, at various locations within [the Borough].” (Appellees’
Mem., 11/14/14, at 4.) Appellees further argued that they “were advised by certain
individuals that [Borough] Police Officers were ordered to follow the activities of the
[Appellees] as candidates for office in 2013.” (Id. at 6.)
2
Appellees requested the deposition testimony of four police officers, John Finby, Philip
Kulan, Andrew Bunda, and Ryan Bunda; two former police officers, Shawn McLister and James
Reichel; the current Chief of Police, Daniel Doyle; the former Chief of Police, Patrick Priore; and
Chairman of the Police Committee, Councilman Matthew Pirolli.
2
In its brief in support of its motion for a protective order, the Borough
stated that there are no facts of record:
The only thing close to a factual allegation comes from
[Appellees’] brief that ‘[Appellees] were advised by certain
individuals that [Borough] Police Officers were ordered to
follow the activities of the [Appellees] as candidates for
office in 2013.’ Notably, [Appellees] do not seek to depose
there (sic) ‘certain individuals.’ Instead, they want to
depose the entire police department.
(Borough’s Br. at 2 (citation omitted).)
On November 20, 2014, the trial court issued a rule to show cause why
the Borough’s motion for a protective order should not be granted. On December 8,
2014, the Borough filed a praecipe under Bucks County Rule of Civil Procedure
(Bucks County Rule) No. 208.3(b), requesting disposition of the motion.3
3
Bucks County Rule No. 208.3(a)(2) provides that when the trial court issues a rule to show
cause and a response is filed, the motion shall be submitted to, and decided by, the trial court
pursuant to Bucks County Rule No. 208.3(b). Bucks County Rule No. 208.3(b)(2) provides that
“[s]ubject to the requirements of Pa. R.C.P. No. 206.7, when the matter is at issue and ready for
decision, the moving party on the application shall, by praecipe, order the same to be submitted for
disposition pursuant to this rule.” Pa. R.C.P. No. 206.7(c) sets forth the following procedure after
the issuance of a rule to show cause:
(c) If an answer is filed raising disputed issues of material fact,
the petitioner may take depositions on those issues, or such other
discovery as the court allows, within the time set forth in the order of
the court. If the petitioner does not do so, the petition shall be
decided on petition and answer and all averments of fact responsive
to the petition and properly pleaded in the answer shall be deemed
admitted for the purpose of this subdivision.
(Emphasis added).
3
On January 15, 2015, the trial court denied the Borough’s motion for a
protective order. The Borough requested reconsideration and certification of the
order for interlocutory appeal. The trial court denied both requests on February 11,
2015. The Borough petitioned this court for review.
By order dated March 30, 2015, this court granted the Borough’s petition
for review of the interlocutory order and agreed to consider the following issue on
appeal:
Did the trial court err by allowing pre-complaint
discovery where the [trial] court did not require the party
seeking discovery to demonstrate that the information
sought is material and necessary to the filing of the
complaint and that discovery will not cause unreasonable
annoyance, embarrassment, oppression, burden or expense
to any person or party.
(Cmwlth. Ct. Order, 3/30/15, at 1.)
Before this court, the Borough argues that the trial court erred in
determining that Appellees demonstrated that the nine requested depositions were
material and necessary to draft a complaint. We disagree.
Initially, we observe that
[d]iscovery matters, including pre-complaint
discovery requests, are within the discretion of the trial
court, and we will not reverse absent an abuse of discretion.
An abuse of discretion occurs where “in reaching a
conclusion, the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias, or ill will.”
4
Pelzer v. Wrestle, 49 A.3d 926, 929 (Pa. Cmwlth. 2012) (citations omitted).
Pa. R.C.P. No. 4003.8 restricts pre-complaint discovery as follows:
(a) A plaintiff may obtain pre-complaint discovery
where the information sought is material and necessary to
the filing of the complaint and the discovery will not cause
unreasonable annoyance, embarrassment, oppression,
burden or expense to any person or party.
(b) Upon a motion for protective order or other
objection to a plaintiff’s pre-complaint discovery, the court
may require the plaintiff to state with particularity how the
discovery will materially advance the preparation of the
complaint. In deciding the motion or other objection, the
court shall weigh the importance of the discovery request
against the burdens imposed on any person or party from
whom the discovery is sought.
Thus, a trial court may, but is not required to, direct a party to state how discovery
will advance preparation of the complaint.
Pursuant to Pa. R.C.P. No. 206.7, the trial court, in reviewing the rule to
show cause and the Borough’s motion, assumed the facts in Appellees’ reply and
memorandum of law to be true. The trial court determined that the Borough admitted
that: (1) Appellees needed the depositions to establish the material and necessary
facts to plead a cause of action; (2) there was police surveillance of political
candidates in the Borough in 2013; and (3) the depositions would not be annoying,
oppressive, burdensome, or expensive. (Trial Ct. Op. at 3.)
5
Here, after review of the record, we conclude that the trial court did not
abuse its discretion in denying the Borough’s motion for protective order. The trial
court thoroughly addressed the Borough’s issue in its opinion.
Accordingly, we affirm based on the well-reasoned opinion of the
Honorable James M. McMaster.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
President Judge Pellegrini concurs in the result only.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tullytown Borough, :
: No. 239 C.D. 2015
Appellant :
:
v. :
:
Edward Armstrong, Robert :
Campanaro, Edward Czyzyk, and :
George Fox :
ORDER
AND NOW, this 11th day of December, 2015, we hereby affirm the
January 15, 2015, order of the Court of Common Pleas of Bucks County based on the
opinion of the Honorable James M. McMaster in Armstrong v. Tullytown Borough,
(Bucks Co., No. 2014-05675, Ct. Com. Pl. Bucks Co. Civil Div., filed May 15, 2015).
Jurisdiction relinquished.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge