Leber v. Stretton

• Decision Date: 08 June 2007
• Docket Number: No. 1179 MDA 2006.,No. 1050 MDA 2006.,1050 MDA 2006.,1179 MDA 2006.
• Citation: 928 A.2d 262
• Court: Pennsylvania Superior Court
• Parties: Jeff LEBER, Appellee v. Samuel STRETTON, Appeal of Magisterial DJ Annette Easton & Magisterial DJ Barbara Easton, Appellants. Jeff Leber, Appellee v. Potter Leader Enterprise, Tioga Publishing Co., Inc., Community Media Group, and Paulalee a/k/a Paulalee Aldridge, Appeal of Magisterial DJ Annette Easton & Magisterial DJ Barbara Easton, Appellants.

928 A.2d 262

Jeff LEBER, Appellee v. Samuel STRETTON, Appeal of Magisterial DJ Annette Easton & Magisterial DJ Barbara Easton, Appellants.

Jeff Leber, Appellee v. Potter Leader Enterprise, Tioga Publishing Co., Inc., Community Media Group, and Paulalee a/k/a Paulalee Aldridge, Appeal of Magisterial DJ Annette Easton & Magisterial DJ Barbara Easton, Appellants.

No. 1050 MDA 2006.

No. 1179 MDA 2006.

Superior Court of Pennsylvania.

Argued May 1, 2007.

Filed June 8, 2007.

Reargument Denied August 20, 2007.

A. Taylor Williams, Philadelphia, for appellants.

Jefferey E. Leber, Coudersport, for Leber, appellee.

BEFORE: STEVENS, KLEIN, and PANELLA, JJ.

OPINION BY STEVENS, J.:

¶ 1 Appellants Magisterial District Judge Annette Easton (hereinafter "Judge A.E.") and Magisterial District Judge Barbara Easton (hereinafter "Judge B.E.") (hereinafter collectively "Appellants")¹ appeal from collateral orders entered on June 13, 2006, and July 5, 2006, in the Court of Common Pleas of Tioga County denying their motions to quash subpoenas and for protective orders. Upon careful review, we reverse.

¶ 2 Appellee served as District Attorney of Potter County for twenty (20) years and in that capacity criticized Appellants for their judicial practices and decisions. This matter arises out of Appellee's filing of two defamation suits, one against Samuel Stretton² and the other against Potter Leader Enterprise, et. al.³ In the former case, Appellee alleges Attorney Stretton, a lawyer who represented Appellants in charges filed with the Judicial Conduct Board, defamed him by stating he was unethical because of statements Appellee had publicly made concerning Appellants.⁴ Appellee claims Potter Leader Enterprise et. al. defamed him by printing those statements. Several articles appeared in the press, during which time Attorney Stretton served as counsel for Appellants.

¶ 3 During an argument held on January 11, 2005, Appellee stated that the genesis of the statements leading to the instant appeal arose in the case of Commonwealth v. Ryan Butler, where Judge A.E. initially determined a prima facie case had not been set forth and dismissed the charges, after which Judge B.E. was appointed to hear the case, and similarly dismissed it.⁵

¶ 4 In No. 609 CV 2004, Appellee served Appellants with a Subpoena to Attend and Testify on May 15, 2005.⁶ Appellants filed a Motion to Quash Subpoenas and for Protective Order on May 30, 2006. The trial court denied both Motions to Quash on June 13, 2006.

¶ 5 Appellants filed a timely appeal under Pa.R.A.P. 313 on June 19, 2006. On June 28, 2006, the trial court ordered Appellants to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellants filed a timely Statement of Matters Complained of on Appeal on July 11, 2006.

¶ 6 In No. 566 CV 2003, Appellee alleges that, inter alia, the Potter Leader Enterprise published statements made by Attorney Stretton that were false or with reckless indifference to their truth or falsity. See Complaint, 11/17/04 at ¶ 17. Appellants filed a Motion to Quash Subpoenas and for Protective Order on June 29, 2006, in response to their receipt of Subpoena to Attend and Testify and Notice of Deposition on June 14, 2006, and June 19, 2006. On July 5, 2006, the trial court denied Appellants' Motion to Quash Subpoena. On July 11, 2006, Appellants filed a timely Notice of Appeal.

¶ 7 On July 31, 2006, the trial court ordered Appellants to file a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). Appellants filed the same on August 7, 2006.

¶ 8 In its Memorandum and Order in Support of Order in Compliance with Rule 1925(a) of the Rules of Appellate Procedure, the trial court determined, inter alia, that: "[Appellants] are not being compelled to testify regarding their official acts in a prior hearing or trial. Rather, [Appellants] are being asked to testify regarding facts they allegedly have knowledge of concerning the statements made by [Appellee]." Opinion, 9/8/06, at 5. The court goes on to state that "[a]s to the argument of the press of business, if a District Judge can have a subpoena quashed on these grounds, then all doctors, business professionals, CEO's, CFO's, Presidents of College, and others could use these same grounds to become exempt from depositions." Opinion, 9/8/06, at 6.⁷

¶ 9 In their brief, Appellants raise the following issues for our consideration:

1. Whether the denial of [Appellants'] Motion to Quash Subpoenas, asserting privilege, is immediately appealable under Pa.R.A.P. 313?

2. Whether the deliberative process of a judicial officer in deciding specific cases may be inquired into on oral deposition?

a. Whether a judicial officer should be forced to give a deposition to be impugned or harassed for his/her judicial decisions?

3. Whether the exclusive jurisdiction over judicial conduct vested in the Judicial Conduct Board and the Court of Judicial Discipline may be circumvented in order to "prove" sitting judicial officers incompetent and biased in a defamation case involving other parties?

4. Whether a judicial officer should be compelled to testify, and be diverted from necessary judicial responsibilities, absent a showing of extreme or extraordinary circumstances?

a. Whether, when the deposition of a judge meets the extreme or extraordinary circumstances standard, the deposition of a judicial officer should be accomplished in the least intrusive manner, as by deposition on written interrogatory?

Brief for Appellant at 4.⁸

¶ 10 In its Memorandum and Order in Support of Order in Compliance with Rule 1925(a) of the Rules of Appellate Procedure, the trial court asserts it is for this Court to decide whether Appellants' claim its denial of Appellants' Motion to Quash Subpoenas, asserting privilege, is immediately appealable under Pa.R.A.P. 313. Trial Court Memorandum at 2.⁹

¶ 11 Generally, discovery orders are deemed interlocutory and not immediately appealable because they do not dispose of the litigation. Makarov v. Lukenda, 856 A.2d 163 (Pa.Super.2004). A non-final order may be reviewed if it is separable from and collateral to the main cause of action, the right involved its too important to be denied review and 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(b). All three factors set forth in Rule 313 must be satisfied. Pace v. Thomas Jefferson University Hospital, 717 A.2d 539 (Pa.Super.1998). The Pennsylvania Supreme Court has stated that Rule 313 must be construed narrowly: "Claims must be analyzed not with respect to the specific facts of the case, but in the context of the broad public policy interests that they implicate. Only those claims that involve interests `deeply rooted in public policy' can be considered too important to be denied review." Geniviva v. Frisk, 555 Pa. 589, 598, 725 A.2d 1209, 1214 (1999).

¶ 12 In the case at bar, the underlying actions involve defamation claims that arose from public comments regarding the competence and objectivity of Appellants, and Appellants contend Appellee seeks to depose them regarding specific judicial decisions. The question of whether Appellants can be compelled to testify regarding decisions they have rendered would not require an analysis of underlying defamation claims. See Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999) (regarding separability prong of Rule 313). Furthermore, the deliberative process privilege has been determined to meet the importance prong of Rule 313. See Hoffman v. Knight, 823 A.2d 202 (Pa.Super.2003). (deliberative process privilege is separable from underlying cause of action for legal malpractice and breach of contract). In addition, the collateral order exception uniformly has been applied when an appellant has asserted the existence of a privilege. Commonwealth v. Alston, 864 A.2d 539, 544 (Pa.Super.2004). Moreover, once disclosed, the confidentiality of potentially privileged information would be irreparably lost and there would be no effective means of review after final judgment. See Crum v. Bridgestone/Firestone North American Tire, LLC, 907 A.2d 578 (Pa.Super.2006). Herein, we find that the question of whether a judicial officer can be compelled to testify does not require an analysis of underlying defamation claims. As such, we find the Orders entered on June 13, 2006, and July 5, 2006, are appealable and properly before us.

¶ 13 Appellants' remaining issues, in sum, question whether the deliberative process of a judicial officer may be inquired into during an oral deposition, which will take time away from his or her judicial responsibilities and circumvent the exclusive jurisdiction over judicial conduct vested in the Judicial Conduct Board, absent a showing of extreme or extraordinary circumstances. Appellants contend that Appellee seeks to request information concerning underlying cases in which Appellants sat as officers while Appellee functioned as District Attorney, to prove Appellants acted with bias or incompetence. Brief for Appellant at 7.¹⁰ In his brief, Appellee states that he has no intention of inquiring into either privileged communications between Appellants and their attorney or into their decision making process "other than to inquire of the facts upon which those decisions are based." Brief for Appellee at 3. Nevertheless, in setting forth a possible questioning scenario Appellee says would establish "the facts of the Potter County situation in which [] Appellee did criticize [Appellants] in his pleadings seeking the appointment of different District Justices," Appellee indicates that an affirmative answer to each question would likely lead to the following, final query: "Why did you decide there was no prima facie case?" Brief for Appellee at 9-10 (emphasis in original). Appellee asserts the question is legitimate and relevant, but admits that such...