Hutchison v. Luddy

WIEAND, Judge:

The issue of first impression in this appeal is whether a church can avoid the discovery of relevant information in a civil action against the church by putting it in a place which is designated by canon law as a “secret archive.” After examining the relationship between canon and civil law, the statutory clergyman’s privilege, and concerns raised by the First Amendment of the Constitution of the United States, *141we conclude that the trial court properly permitted discovery of relevant, non-privileged information in the church’s possession.

On October 26, 1988, Samuel C. Hutchison commenced a civil action in Somerset County to recover damages against the Reverend Father Francis Luddy for alleged pedophilic sex acts performed while Father Luddy was serving a pastorate in the Borough of Windber, Somerset County. Later, on December 29, 1989, an amended complaint was filed, alleging that Bishop James Hogan, Monsignor Thomas Madden, Monsignor Roy F. Kline, Monsignor Paul Panza, Monsignor Ignatius Wadas, Diocese of Altoona-Johnstown and St. Mary’s Catholic Church (“Altoona-Johnstown parties”) had negligently hired, or retained Father Luddy and had assigned him to a pastorate when they knew or should have known of his pedophilic tendencies.

As part of pre-trial discovery, Hutchison served the Altoona-Johnstown parties with a Request For Production of Documents for Inspection. The request was, inter alia, for the production of documents pertaining to alleged sexual misconduct with minor male children by priests assigned to the Altoona-Johnstown Diocese for the years 1972 through 1987 (Request for Production No. 9); documents pertaining to reports of sexual misconduct by priests assigned to the Altoona-Johnstown Diocese for the years 1972 through 1987 (Request for Production No. 15); the complete personnel files of defendant Father Luddy (Request for Production No. 11) and other specified priests (Requests for Production Nos. 35, 36 and 36 [37]); and documents pertaining to allegations of sexual involvement with minor male children by specified priests (Requests for Production Nos. 30, 31 and 32). Hutchison also requested documents kept by the Diocese of Altoona-Johnstown in a file maintained pursuant to Canon 489 of the Code of Canon Law of the Catholic Church. More specifically, Hutchison asked for:

documents in the Canon 489 file which in any way pertain to Father Francis Luddy, for the years 1974 through the present. (Request for Production No. 27).
*142documents in the Canon 489 file which pertain to any alleged and/or actual reports of sexual involvement with minor male children by priests in the Altoona-Johnstown Diocese, for the years 1974 through the present. (Request for Production No. 28).
documents in the Canon 489 file relating to a specifically named priest. (First Supplemental Request for Production No. 9).

In response to the request for a complete copy of Father Luddy’s personnel files, the Altoona-Johnstown parties averred that the documents were not discoverable because “they would be contained in secret archive files as maintained by the diocese pursuant to Canons 489 and 490 of the Code of Canon Law____” The Altoona-Johnstown parties refused to produce any documents in the “secret archive” concerning Father Luddy and other identified priests for the same reason.

When the requested documents were not forthcoming, Hutchison filed a motion requesting the trial court to order compliance with Hutchison’s requests for the production of documents. A countervailing motion was filed by the Altoona-Johnstown parties, in which they requested a protective order to prevent the discovery of documents because of defects in the requests and because the documents sought were privileged.

In ruling on these opposing motions, the trial court agreed with the Altoona-Johnstown parties that the requests for production were unreasonably broad in scope and sought to discover matters not relevant to the action. Thus, the court found no legitimate reason for requiring revelation of complete personnel files and limited discovery to incidents of actual or alleged sexual misconduct by priests with minor, male children and information pertaining to the assignment and transfer of priests. The trial court also concluded that the time period referred to in Hutchison’s requests was too broad; and, therefore, restricted the production of documents to the period between 1972 and 1985. Finally and most significantly for purposes *143of this appeal, the trial court denied Altoona-Johnstown’s request for a protective order regarding materials in the Canon 489 file. However, the trial court’s order granted leave to the Altoona-Johnstown parties to seek further protective orders or to present the documents for in camera review before disclosure to the adverse party.

Both Hutchison and the Altoona-Johnstown parties filed motions for reconsideration, and the Altoona-Johnstown parties requested an amendment certifying the court’s order for immediate appeal, coupled with an interim stay or supersedeas. The trial court refused the motion for reconsideration by the Altoona-Johnstown parties but granted their requests for a stay and certification of the case for immediate appeal. Thereafter, the Altoona-Johnstown parties filed in the Superior Court an immediate appeal and also a petition for permission to appeal from an interlocutory order. Hutchison filed a motion to quash the appeal. The Superior Court denied the motion to quash the Altoona-Johnstown parties’ appeal on the basis of the rule announced in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and followed by the Supreme Court of Pennsylvania in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). In view of this denial, the petition for leave of court to file an appeal from an interlocutory order was dismissed as moot.1

In Cohen v. Beneficial Industrial Loan Corporation, supra, the Supreme Court of the United States held that orders collateral to the principal action were appealable if the claimed right was too important to be denied review and the question to be presented was such that, if review were to be postponed until final judgment in the principal action, the claimed right would be irreparably lost. This is also the law in Pennsylvania. Pugar v. Greco, supra. The *144order from which the instant appeal was taken does not decide the principal action but is collateral thereto. In effect, it directs the Roman Catholic Church to produce for discovery certain records which the Church deems secret. The right of confidentiality claimed by the Church is too important to be denied review; and to postpone review until final judgment in the main action would cause the claimed right to be irreparably lost. Therefore, we deem the present appeal proper and will consider the merits of the claim of confidentiality asserted by the Church in opposition to plaintiffs several requests for discovery.2

It is the responsibility of the trial court to “oversee discovery between the parties and therefore it is within that court’s discretion to determine the appropriate measure necessary to insure adequate and prompt discovering of matters allowed by the Rules of Civil Procedure.” Stern v. Vic Snyder, Inc., 325 Pa.Super. 423, 436, 473 A.2d 139, 146 (1984). With regard to requests for protective orders, the Commonwealth Court has appropriately observed:

There 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.

Allegheny West Civic Council, Inc. v. City Council of the City of Pittsburgh, 86 Pa.Commw. 308, 314, 484 A.2d 863, 866 (1984). See also: Kepple v. Fairman Drilling Co., 380 Pa.Super. 52, 551 A.2d 226 (1988), appeal denied, 522 Pa. 604, 562 A.2d 827 (1989); Leonard v. Leonard, 353 Pa.Super. 604, 510 A.2d 827 (1986).

Canon 489 of the law of the Roman Catholic Church dictates: “There is to be a secret archive ... or at least a *145safe or file in the ordinary archive, completely closed and locked and which cannot be removed from the place,” for “documents to be kept [and] protected most securely.” Canon 490 states further that “[o]nly the bishop” governing the diocese may possess the secret archive’s key and that “documents are not to be removed from the secret archive or safe.” Appellants contend that the trial court’s discovery is violative of these provisions of canon law.

The law pertaining to discovery in civil actions appears at Pa.R.C.P. 4001 et seq. In general, “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ... including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things____”

Insofar as the canons of the Church are in conflict with the law of the land, the canons must yield. St. Joseph’s Lithuanian Roman Catholic Church’s Petition, 273 Pa. 486, 492-493, 117 A. 216, 218 (1922). Accord: St. Peter’s Roman Catholic Parish v. Urban Redevelopment Authority of Pittsburgh, 394 Pa. 194, 198, 146 A.2d 724, 726 (1958). Here, it is the Pennsylvania rules of discovery which are controlling. Merely because Canon 489 is controlling in the internal operation of the affairs of the Church does not mean that it permits evidence pertaining to sexual molestation of children by priests to be secreted and shielded from discovery which is otherwise proper.

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

Minersville School District v. Gobitis, 310 U.S. 586, 594-595, 60 S.Ct. 1010, 1013, 84 L.Ed. 1375, 1379 (1940) (footnote omitted).

*146An application of Pa.R.C.P. 4001 et seq. requires that a determination be made as to the relevancy of the information sought and whether the information is privileged. The trial court determined, and we agree, that evidence in the files of the Altoona-Johnstown parties pertaining to Father Luddy’s alleged sexual molestation of Hutchison is relevant. Similarly, the circumstances involved in the handling of Father Luddy and other named priests, if any, who were known to be pedophilic, would be relevant to plaintiff’s claim that the Altoona-Johnstown parties were negligent in concealing such tendencies and that this contributed causally to his own molestation.

The record before this Court does not suggest that the information sought to be discovered is privileged. “Evidentiary privileges are not favored; ... exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth.” Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115, 133 (1979), quoting United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, 1065 (1974).

Pennsylvania statutory law recognizes a privilege for communications made in confidence to a clergyman. The statute, appearing at 42 Pa.C.S. § 5943, provides in pertinent part as follows:

No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, ... who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

This privilege protects “priest-penitent” communications; it does not protect information regarding the manner in which a religious institution conducts its affairs or information acquired by a church as a result of independent investiga*147tions not involving confidential communications between priest and penitent.

In Fahlfeder v. Com., Pennsylvania Board of Probation, 80 Pa.Commw. 86, 470 A.2d 1130 (1984), a parolee alleged that testimony by a clergyman from the parolee’s rehabilitation residence was in violation of the statutory privilege at Section 5943. In rejecting this argument, the court stated:

Clearly, this provision of the Code does not prohibit all testimony by members of the clergy. Rather, it is limited to information told in confidence to them in their role as confessor or counselor. Petitioner established nothing in the record here indicating a confessor/penitent relationship with [the clergyman], and the record does not indicate that the admissions by Petitioner were offered in confidence____ Without a demonstration that his role was that of confessor or confidant, the admissions sought to be excluded did not fall within the protection of Section 5943.

Id., 80 Pa.Commw. at 90, 470 A.2d at 1133. (emphasis in original).

The applicability of § 5943 was also at issue in Commonwealth v. Patterson, 392 Pa.Super. 331, 572 A.2d 1258 (1990). There, the defendant argued that communications with a clergyman in the course of his duties were presumed to be privileged and that there was no requirement that they be confessional or penitent in nature. The court held, consistently with Fahlfeder, as follows:

[O]ur legislature did not intend a per se privilege for any communication to a clergym[a]n based on his status. We therefore look to the circumstances to determine whether appellant’s statements were made in secrecy and confidence to a clergyman in the course of his duties____ Appellant never sought [the clergyman] in a confessional role; further there was no evidence that [the clergyman] was acting in any capacity other than that of counselor. Thus, the statements were not motivated by religious considerations or in order to seek the forgiveness of God. Accordingly, they were not made to [the clergyman] in *148the course of his duties as a minister.'.. [T]here is no basis to conclude that appellant’s statements were made confidentially or for religious, penitent purposes. Therefore, we conclude that section 5943 does not apply.

Id., 392 Pa.Superior Ct. at 343-344, 572 A.2d at 1265.

Courts of other jurisdictions have similarly limited the privilege to situations in which it has been demonstrated that the communication was made in the context of a confession or spiritual matter. The mere fact that a communication was made to a clergyman or documentation was transmitted to a clergyman is insufficient in itself to invoke the privilege. See: United States v. Gordon, 655 F.2d 478 (2d Cir.1981) (testimony of priest admissible where communication related to business relationships, not spiritual matters); United States v. Wells, 446 F.2d 2 (2d Cir.1971) (letter to priest not privileged in absence of evidence that purpose was to obtain religious or other counsel, advice,, solace, absolution or ministration); Keenan v. Gigante, 47 N.Y.2d 160, 417 N.Y.S.2d 226, 390 N.E.2d 1151 (1979) (privilege seeks to protect only communications made to a clergyman in his spiritual capacity).

In the instant case, the trial court applied the statutory privilege consistently with the decided cases. The court determined that the Altoona-Johnstown parties had failed to show

in what manner the requested material was revealed or given to church representatives, or, for that matter, whether any of the requested information was disclosed to a priest or clergyman at all. Defendants have not shown that the request would cause disclosure of any information given by anyone, or to anyone, in confidence. We conclude that defendants have not met their burden of showing that any of the requested material is confidential within the meaning of Section 5943. We, therefore, reject defendants’ blanket assertion of privilege based on Section 5943 of the Judicial Code.

We agree that this was a correct interpretation of the statutory privilege. We observe, moreover, that the trial *149court’s order has preserved the right to seek a further protective order in the event that in camera review of the church’s file discloses privileged material. The trial court did not err, when on the record established in this case, it refused to find that the information sought to be discovered was privileged.

Appellants argue, however, that the Canon 489 file is a religious practice, constitutionally protected from a state's discovery laws. In support of this argument, appellant cites and relies upon decisions which have held that a state may not interfere with a party’s religious beliefs. See, e.g. Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (Jehovah’s Witness entitled to state unemployment compensation benefits); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (state law requiring school attendance for all students under the age of sixteen held invalid as applied to Amish children); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (Sabbatarian employee who declined to work on holy day of Saturday eligible for state unemployment compensation). Compare: Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).

These decisions, however, have no applicability to the case sub judice. Neither the discovery rules adopted by the Pennsylvania Supreme Court nor the order entered by the trial court in this case interferes with the free exercise of religion.

Free exercise of religion, as it is encapsulated in the First Amendment, embraces two concepts — freedom to believe and freedom to act. The first is absolute, but the second remains subject to regulation for the protection of society. Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). We are not concerned here with the former; Holmes and other congregation members remain unimpeded in the cerebral sphere. The sole issue is whether the Church may refrain from *150producing documents under a narrowed court order. There is no doubt that this constitutes conduct.

United States v. Holmes, 614 F.2d 985, 989 (5th Cir.1980). Decisions expressing judicial reluctance to become entangled in internal church conflicts are also inapplicable.3

Those cases are premised on a perceived danger that in resolving intrachurch disputes the State will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs. 426 U.S., at 709-710, 96 S.Ct., at 2380-2381. Such considerations are not applicable to purely secular disputes between third parties and a particular defendant, albeit a religious affiliated organization, in which fraud, breach of contract, and statutory violations are alleged.

General Council on Finance and Administration of the United Methodist Church v. Superior Court of California, 439 U.S. 1369, 1373, 99 S.Ct. 35, 38, 58 L.Ed.2d 77, 81-82 (1978) (Rehnquist, J.).

The instant case is more akin to Ambassador College v. Geotzke, 675 F.2d 662 (5th Cir.1982), where a challenge was made to the validity of a gift to Ambassador College on grounds of fraud and undue influence. During the discovery phase of the litigation, Ambassador College, an entity endowed and supported by the Worldwide Church of God, refused on First Amendment grounds to respond to many of plaintiffs interrogatories and requests for the production of documents. The trial court entered an order compelling Ambassador College to answer plaintiffs requests. Ambassador College sought a declaratory judgment in federal court, under 42 U.S.C. § 1983, that the trial court’s order was an unconstitutional infringement upon its *151freedom of religion. The Fifth Circuit responded to Ambassador College’s contentions as follows:

We are faced with the scenario of a church and an individual contesting the validity of a gift by deed. There is no danger of government seeking to monitor or regulate a religious group. Indeed, the only government involvement in this case at all is the Georgia trial court’s enforcement of the discovery order. We find that there are simply no free exercise considerations of even arguable validity raised by Ambassador College. Ambassador College has not demonstrated how its religious liberty would be infringed upon if it is required to answer the questions put to it____ Thus, the church must respond to discovery requests, as any other similarly situated litigant would be required____ The raising of a first amendment right does not require a balancing test of the interests involved in discovery.

Id. at 664-665 (emphasis in original).

A similar analysis was employed by the court in Pagano v. Hadley, 100 F.R.D. 758 (D.Del.1984), where the church had moved to quash a subpoena seeking documents from a priest’s personnel file. In rejecting the church’s “free exercise” argument, the court held that the production of the personnel file “will not interfere with the Bishop’s right to believe as he chooses and to engage in the religious observances of his faith.” Id. at 761. The court appropriately observed that although courts have always been careful about involvement in internal church affairs, “the production of existing documents needed for civil litigation in response to a subpoena simply does not involve any entanglement.” Id. The court concluded its analysis with the following observation:

Information in the possession of the Church has always been subject to civil process. This is precisely why states like Delaware have adopted statutes creating a priest-penitent privilege. If the Bishop were right about the protection afforded by the Constitution, there would be no need for such a privilege.

*152Id. (footnote omitted). Pagano was cited with approval in two cases involving bankruptcy proceedings. In In re The Bible Speaks, 69 B.R. 643, 647 (D.Mass.1987), the court held that cases involving civil litigation between private parties pose “no danger ... that the government will unconstitutionally entangle itself in church affairs by seeking to monitor or regulate religious activity. The state is not even a shadowy presence in this discovery'[as] the information requested relates to a private, secular dispute between an individual and a religious organization____” Similarly, in In re Contemporary Mission, Inc., 44 B.R. 940, 943 (D.Conn.1984), the court held that the church’s “First Amendment rights” claim does not assert a cognizable privilege allowing refusal of discovery requests because otherwise “any group could avoid discovery procedures by merely claiming to be a religious organization.”

We hold, consistently with the decided cases, that where the only action required of a religious institution is the disclosure of relevant, non-privileged documents to an adversary in civil litigation, such action, without more, poses no threat of governmental interference with the free exercise of religion. In the instant case, there is not one iota of evidence that court ordered discovery will “chill” the rights of appellants in the conduct of their religious affairs or inhibit their parishioners from engaging freely in the practice of their religious beliefs and activities. As the trial court appropriately observed, “[t]he relevant inquiry is not whether the church gives a file a particular name, but whether disclosure of the information requested from that file interferes with the exercise of religious freedom.”

It is obvious from the opinion of the trial judge that he gave, exceedingly careful consideration to the requests made by the parties pursuant to the Pennsylvania Rules of Discovery. His analysis is cogent and his rationale has been articulately expressed. We agree that discovery of documents contained in the Canon 489 file will not impermissibly intrude upon theological doctrine or the practice of religion. The requested documents are relevant as they *153pertain to conduct of one or more church officials which is the subject of civil litigation. This information has not been shown to be privileged, and its discovery is not proscribed by the First Amendment free exercise clause of the Constitution. Therefore, the order allowing discovery and denying appellants’ motion for protective order is, as it must be,

Affirmed.

JOHNSON, J., files a dissenting opinion.

. The Superior Court utilized a similar rationale in reaching the merits in Hutchison v. Luddy, 398 Pa.Super. 505, 581 A.2d 578 (1990). The Supreme Court subsequently reversed and held that the order in that case was interlocutory and non-appealable. The order from which the appeal had been filed in that case, however, had merely denied a motion to seal the record.

. To quash the appeal without prejudice to appellants’ right to once again petition the Court to hear an interlocutory appeal would serve no purpose other than delay; and, therefore, we have rejected such an approach.

. The cases cited by appellants include the following: The Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952).