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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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