William Zerbe v. Sandoe, Niarakis and Sanders

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

WILLIAM ZERBE,                                       :

            Plaintiff,                                              :

                                                                        :

            v.                                                         :                                                                                                                                                           :

TIMOTHY SANDOE and GLORIA            :

SANDOE, husband and wife,                        :

individually and t/d/b/s TRAILS                    :           No. 2008-02496

END FARM,                                                  :

            Defendants,                                        :

                                                                        :

            v.                                                         :

                                                                        :

WILLIAM NIARAKIS, individually            :

and t/d/b/a SINATRA TB RACING, and     :

KELLI SANDERS, individually and            :

t/d/b/a WINDSWEPT STABLES,                 :

            Additional Defendants                       :

 

ORDER OF COURT

            AND NOW, to wit, this 7^th day of March, 2012, upon careful consideration of Plaintiff’s Motion for Protective Order, Defendants’ Response thereto, the oral arguments and legal memoranda presented and the record of this case, it is hereby directed that the Motion for Protective Order is granted for the reasons set forth in the attached Opinion.  Defendants are prohibited from deposing Cheryl J. Allerton, Esquire, as contemplated in the Notice of Deposition dated October 28, 2010.

                                                                                    BY THE COURT:

 

                                                                                    _____________________________, P.J.

                                                                                    JOHN C. TYLWALK

 

JCT/aa

pc:       Cheryl J. Allerton, Esq. (Regular Mail at Hartman Shurr, 1100 Berkshire          Boulevard, Suite 301, Wyomissing, PA  19610)

            Barry A. Kronthal, Esq. (Regular Mail at Margolis Edelstein, 3510 Trindle Road,         Camp Hill, PA  17011)           

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

WILLIAM ZERBE,                                       :

            Plaintiff,                                              :

                                                                        :

            v.                                                         :

                                                                        :

TIMOTHY SANDOE and GLORIA            :

SANDOE, husband and wife,                        :

individually and t/d/b/a TRAILS                   :           No. 2008-02496

END FARM,                                                  :

            Defendants,                                        :

                                                                        :

            v.                                                         :

                                                                        :

WILLIAM NIARAKIS, individually            :

and t/d/b/a SINATRA TB RACING, and     :

KELLI SANDERS, individually and            :

t/d/b/a WINDSWEPT STABLES,                 :

            Additional Defendants                       :          

 

APPEARANCES:

 

CHERYL J. ALLERTON, ESQUIRE                      For Plaintiff

Hartman Shurr

 

BARRY A. KRONTHAL, ESQUIRE                      For Defendants

Margolis Edelstein

 

NO APPEARANCE ENTERED                               For Additional Defendants

 

OPINION BY TYLWALK, P.J., MARCH 7, 2012:

Before the Court is Plaintiff’s Motion for Protective Order, whereby Plaintiff seeks to preclude Defendants from deposing his counsel, Cheryl J. Allerton, Esquire.  On November 28, 2008, Plaintiff filed a Complaint against Defendants alleging that he contacted Defendants to purchase a younger horse for his daughter to utilize to compete in hunter jumping classes at horse shows.  Plaintiff avers that on October 30, 2006, Defendants offered to sell him a horse.  Plaintiff alleges that Defendants represented that the horse was seven (7) years of age, was capable of competing in the hunter jumping classes at horse shows and would be sold with registration papers.  Plaintiff purchased the horse for $3,900.00.  Plaintiff asserts that when the horse was not progressing as desired, two (2) veterinarians examined the horse and concluded that the horse was seventeen (17) to twenty (20) years of age.  It is Plaintiff’s position that the horse is unable to compete as represented by Defendants due to the horse’s age.  Plaintiff brings causes of action against Defendants for Fraud, violations of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq., and Breaches of Express and Implied Warranties.

On January 19, 2009, Defendants filed their Answer with New Matter to Plaintiff’s Complaint.  Therein, Defendants aver that they were not the owners of the horse, but, rather, were acting as a representative for the seller, and they believed that the horse was seven (7) years of age based upon the seller’s representations to them.  Further, Defendants assert that Plaintiff had a veterinarian examine the horse before buying the horse, and the veterinarian concurred with the information provided by Defendants about the horse.  On January 27, 2009, Defendants filed a Praecipe for Writ to Join as Additional Defendants William Niarakis, Sinatra TB Racing, Kelli Sanders and Windswept Stables.[1]  On January 30, 2009, Plaintiff filed his Reply to Defendants’ New Matter.

On June 2, 2010, Defendants deposed Plaintiff’s former wife, Clare Yingst, and their daughter, Alexandria.[2]  At the deposition, Defendants’ counsel asked whether Alexandria met or spoke with anyone before the deposition.  Alexandria indicated that she spoke with “Cheryl” before the deposition.  (N.T. 6/2/10 at 6).  When Defendants’ counsel asked what Alexandria discussed with Allerton, Allerton objected on the basis that she represents Alexandria and disclosure of their communications is barred by attorney-client privilege.  Alexandria responded to the questions regarding the nature of the relationship between herself and Allerton.  Additionally, Defendants’ counsel was permitted to question Alexandria extensively about the underlying facts of this case.  The only matter not further explored at that time was the discussion between Allerton and Alexandria before the deposition.

At the deposition of Yingst that was conducted on the same date, Defendants’ counsel was permitted to inquire regarding the existence of an attorney-client relationship between Yingst and Allerton with regard to this action.  Yingst answered all questions posed to her regarding the nature of her relationship with Allerton.  As with Alexandria, Yingst responded to extensive inquiry regarding her knowledge of the facts giving rise to this case.  Defendants’ counsel never questioned Yingst regarding the substance of any conversations that she had with Allerton.

On October 28, 2010, Defendants issued a Notice of Deposition to Allerton, directing her to appear for oral examination on December 6, 2010 “…on all matters not privileged which are relevant and material to the issues and subject matter involved….”  Further, the Notice of Deposition instructed Allerton to bring “…any and all documents, letters, fee agreements, memoranda, emails or any other materials regarding [her] representation of Alexandria Zerbe and Clare Yingst in the above-captioned matter.”

On December 9, 2010, Plaintiff filed the Motion for Protective Order currently before the Court, asserting therein that Defendants have no legitimate need to depose Allerton, that provision of the testimony and documents sought regarding Allerton’s relationship with Yingst and Alexandria would violate the attorney-client privilege and that Defendants merely are trying to disqualify Allerton from continued representation of Plaintiff in the case.  Plaintiff seeks a directive from the Court prohibiting Defendants from deposing Allerton.

On December 10, 2010, the Court issued a Rule upon Defendants to show cause why the relief sought should not be granted.   On December 27, 2010, Defendants filed their Answer to the Motion for Protective Order stating their position that neither Yingst nor Alexandria is a captioned party to the subject action, which thus affords no protection to their communications with Allerton.  Further, Defendants assert that communications between these non-party witnesses and Allerton would be relevant to determining whether the testimony of these witnesses has been influenced by their communication with Plaintiff’s counsel.

Plaintiff’s Motion for Protective Order subsequently was listed for disposition through Argument Court.  The parties presented oral arguments and submitted Briefs in support of their respective positions, and Plaintiff’s Motion for Protective Order now is ripe for disposition.[3]

Depositions upon oral examination are a method of discovery.  Pa.R.C.P. Rule 4001(d).  Rulings upon discovery are uniquely within the discretion of the trial court.  George v. Schirra, 814 A.2d 202, 204 (Pa.Super. 2002), citing Air Products and Chemicals, Inc., v. Johnson, 442 A.2d 1114, 1129 (Pa.Super. 1982).  As a result, a trial court’s discovery ruling will not be reversed unless it constitutes an abuse of discretion.  Id.

The purpose of discovery is to prevent surprise and unfairness, thereby allowing a fair trial on the merits.  McGovern v. Hosp. Serv. Ass’n of Northeastern Pennsylvania, 785 A.2d 1012, 1015 (Pa.Super. 2001), citing Dominick v. Hanson, 753 A.2d 824, 826 (Pa.Super. 2000).  The scope of discovery in a civil case is set forth at Pa.R.C.P. Rule 4003.1, which provides, in relevant part:

“…[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….”

 

The scope of discovery is necessarily broad by definition, and everything is presumed to be discoverable unless subject to a prohibition.  Slayton v. Biebel, 37 Pa. D. & C. 4^th 140, 142 (Pa.Com.Pl. 1998), citing Mountain View Condominium Owners’ Ass’n v. Mountain View Associates, 9 Pa. D. & C. 4^th 81, 85 (Pa.Com.Pl. 1991).  A party, then, may obtain discovery of any matter, not privileged, that is relevant to the subject matter involved in the pending action if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.  Slayton at 142, citing Lindsey v. PennDOT, 23 Pa. D. & C. 3d 202, 203 (Pa.Com.Pl. 1982).

While a litigant’s right to discovery is far-reaching, that right is not absolute.  Slayton at 142, citing Taylor v. West Penn Hosp., 48 Pa. D. & C. 3d 178, 181 (Pa.Com.Pl. 1987).  The Court will place limitations on the scope of discovery only when it concludes that information sought to be discovered is privileged, irrelevant or specifically prohibited by the rules.  Slayton at 142.  Pa.R.C.P. Rule 4011 prohibits discovery or deposition that is sought in bad faith, would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent, is beyond the scope of discovery or would require making an unreasonable investigation by the deponent.  In accordance with the prohibitions set forth in Rule 4011, Pa.R.C.P. Rule 4012 creates a mechanism to oppose requested discovery.  Rule 4012(a) provides, in relevant part:

“Upon motion by a party or 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, including one or more of the                                    following:

 

(1) that the discovery or deposition shall be prohibited;

 

***

 

(4) that certain matters shall not be inquired into;

 

(5) that the scope of disclosure or deposition shall be limited;….”

 

A party moving for a protective order bears the burden of establishing the objectionable nature of the discovery he or she seeks to withhold.  Fanelli, D.O., v. Independence Blue Cross, 2005 WL 2562911 * 5 (Pa.Com.Pl. 2005), citing Griffiths v. Ulmer, 55 Pa. D. & C. 4^th 370, 373 (Pa.Com.Pl. 2002).  The moving party must produce some evidence upon which a court can make a determination that harm will result from the disclosure.  Fanelli, D.O. at * 5, citing Ornsteen v. Bass, 50 Pa. D. & C. 3d 371, 374 (Pa.Com.Pl. 1988).

As stated above, Plaintiff argues in his Motion for Protective Order that Defendants are attempting to depose Allerton on matters that are protected by attorney-client privilege.  Additionally, Plaintiff asserts that when Defendants deposed Yingst and Alexandria, Defendants were allowed to question Yingst and Alexandria extensively about the facts of the case and the nature of their relationship with Allerton.  Plaintiff argues that since Allerton has no independent knowledge of any of the facts underlying the subject matter of this case, subjecting Allerton to deposition would be unreasonably oppressive, burdensome and expensive, as it would disqualify Plaintiff’s counsel of choice without any reasonable chance of leading to the discovery of admissible evidence.

Defendants argue in response to the Motion for Protective Order that no attorney-client relationship exists between Allerton and Yingst or Alexandria, as neither Yingst nor Alexandria is a captioned party in this matter.  However, the fact that Yingst and Alexandria are not captioned plaintiffs in this case is not determinative of whether an attorney-client relationship exists between either of them and Allerton.  In Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney and attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.  Custom Designs & Mfg. Co., v. Sherwin-Williams Co., 2012 WL 473476 * 2 (Pa.Super. 2012), citing Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011).  The attorney-client privilege is codified at 42 Pa.C.S. § 5928, which provides, in relevant part:

“In a civil matter counsel shall not be competent or permitted to testify to                                               confidential communications made to him by his client, nor shall the client be                               compelled to disclose the same, unless in either case this privilege is waived upon                   the trial by the client.”

 

The privilege exists to foster a confidence between attorney and client that will lead to a trusting and open dialogue.  Custom Designs & Mfg. Co. at * 2, citing Gocial v. Independence Blue Cross, 827 A.2d 1216, 1222 (Pa.Super. 2003).  Full and frank communication between an attorney and client is necessary for sound legal advocacy and advice, which serve the broader public interests of observance of law and administration of justice.  Nationwide Mut. Ins. Co., v. Fleming, 924 A.2d 1259, 1264 (Pa.Super. 2007), citing Upjohn Co., v. United States, 449 U.S. 383, 389 (1981).

The attorney-client privilege exists when an attorney acts in his or her professional capacity.  Lobolito, Inc., v. North Pocono Sch. Dist., 53 Pa. D. & C. 4^th 347, 351 (Pa.Com.Pl. 2001), citing Sedat Inc., v. Dep’t of Envtl. Resources, 641 A.2d 1243, 1245 (Pa.Cmwlth. 1994).  A person who consults with an attorney with a view toward obtaining legal services is considered to be a client of the attorney even if the employment of the attorney is not accepted or the individual consulting with the attorney chooses not to proceed.  Lobolito, Inc. at 351, citing Surface v. Bentz, 77 A. 922, 923 (Pa. 1910).

Pennsylvania law imposes a shifting burden of proof in disputes over disclosures of communications alleged to be protected by the attorney-client privilege.  Custom Designs and Mfg. Co. at * 3.  The party invoking the privilege initially must set forth facts showing that the privilege properly has been invoked.  Custom Designs and Mfg. Co. at * 3, citing Nationwide Mut. Ins. Co. at 1266.  The burden then shifts to the party seeking disclosure to set forth facts showing that disclosure will not violate the attorney-client privilege.  Id.  If the party asserting the privilege does not produce sufficient facts that the privilege properly was invoked, the burden never shifts to the other party, and the communication is not protected.  Custom Designs and Mfg. Co. at * 3, citing Nationwide Mut. Ins. Co. at 1267.

Pertaining to the existence of an attorney-client relationship between Yingst and Allerton, Plaintiff’s former wife unequivocally testified that she and Plaintiff retained Allerton when the case started in the summer of 2008.  (N.T. 6/2/10 at 7).  Yingst also testified that she believed that she was a party to the action and did not sign a verification for the Complaint because she was on vacation when the Complaint was lodged and time was of the essence.  (N.T. 6/2/10 at 6, 9).  In fact, Plaintiff testified that he and his former wife each paid one-half (1/2) of the purchase price of the horse.  (N.T. 2/4/10 at 31).  Plaintiff testified that he spoke to Yingst about whether they should file a lawsuit, and Yingst agreed with him that they should file a lawsuit.  (N.T. 2/4/10 at 62).  A copy of the fee agreement executed by Plaintiff and Yingst was admitted and marked as an exhibit at oral argument.  Since it is undisputed from this record that both Plaintiff and Yingst consulted with Allerton to obtain legal services with regard to the subject matter of this case, an attorney-client relationship was formed that was not divested simply because Yingst is not a captioned plaintiff in this case.[4]  Accordingly, we are satisfied that the privilege appropriately has been invoked so as to protect confidential communications, both oral and documentary, between Allerton and Yingst with regard to the subject matter of this case.  Defendants have not satisfied us based upon this record that the disclosure of such confidential communications would not violate the attorney-client privilege.

Turning to the question of whether Allerton shares an attorney-client relationship with Alexandria so as to preclude inquiry into their communications, the record currently before us is insufficient for us to conclude that the attorney-client privilege properly has been invoked.  While the record does not reflect Alexandria’s date of birth, it appears that Alexandria was a minor at the time when Plaintiff and Yingst first consulted with Allerton regarding the action.  No testimony or evidence was presented that Plaintiff or Yingst consulted with Allerton to bring an action on behalf of their minor daughter.  The fee agreement signed by Plaintiff and Yingst does not reference Alexandria or indicate that Allerton’s firm was being retained on behalf of Alexandria.  Yingst did not know whether she or Plaintiff signed for their daughter to be represented by Allerton.  (N.T. 6/2/10 at 8).  Plaintiff testified that in October of 2008, he talked to his daughter, telling her that her horse was older than was represented and that he was considering filing a lawsuit.  (N.T. 2/4/10 at 61).  There is no indication whether Alexandria wanted Plaintiff to file a lawsuit for her or what her feelings were about her father potentially bringing a lawsuit.

Further, no testimony or evidence was presented that Alexandria met or consulted with Allerton to receive legal advice.  In fact, the only time reflected in the record when Alexandria met with Allerton regarding the case was earlier on the date of her deposition, and that meeting was arranged by Yingst.  (N.T. 6/2/10 at 6).  Further, while Alexandria was the recipient of the horse that was gifted to her by her parents, the record reflects that Alexandria did not contribute any funds toward the purchase of the horse.  (N.T. 2/4/10 at 33).  Plaintiff’s daughter apparently turned eighteen (18) years of age before her deposition.  No fee agreement was executed by Alexandria and Allerton after Alexandria had turned eighteen (18) years of age.  (N.T. 6/2/10 at 7).  Further, Alexandria testified that “she guesses” that her mother hired Allerton to be her counsel and that she found out that Allerton was her attorney “…when we started the case.”  (N.T. 6/2/10 at 7-8).  There is no indication in the record whether Alexandria was advised when meeting with Allerton before the deposition that Allerton was her attorney or that Allerton would keep confidential any communications they had during the meeting.  From the record before us, we cannot conclude that the privilege properly has been invoked as to communications between Alexandria and Allerton.

However, regardless of whether Allerton enjoys an attorney-client relationship with Yingst and/or Alexandria, it is nonetheless the conclusion of the Court that subjecting Allerton to deposition regarding the case and requiring her to produce documentation of the nature of her relationship with Yingst and/or Alexandria would be unduly burdensome and oppressive as contemplated by Rule 4012(a).  There has been no suggestion whatsoever that Allerton has any personal, firsthand knowledge of the facts underlying this cause of action or any knowledge or information that appears reasonably calculated to lead to the discovery of admissible evidence.  Moreover, as explained in part above, both Yingst and Alexandria responded at their depositions to inquiries posed by Defendants about the relationships they perceived that they had with Allerton in relation to this case.  Allerton clearly has stated, both at the depositions and in the Motion for Protective Order, that it is her belief that she shares an attorney-client relationship with Yingst and Alexandria.  Therefore, any additional inquiry through deposition of Allerton as to the basis of her relationship with Yingst and/or Allerton regarding the nature of their relationship relative to this case would be cumulative of information already of record.

Defendants indicate in their Answer to the Motion for Protective Order that deposing Allerton regarding the nature of her relationship with Yingst and Alexandria is relevant to assessing the credibility of the evidence provided by these witnesses.  However, there are other methods by which Defendants may discover whether Yingst and Alexandria discussed the facts of the case with anyone else and whether their recollections of the facts have remained consistent with each telling other than by deposing Allerton.  Simply put, Defendants can question Yingst and Alexandria, through interrogatories, written deposition and/or oral deposition, whether they discussed this case with any other individuals, and, if so, the identity of those individuals, when those discussions occurred and the substance of those discussions.  Obviously, the attorney-client relationship between Yingst and Allerton would enable Yingst and/or Allerton on her behalf to invoke the privilege as to confidential communications between them.  However, Defendants certainly are able to test the veracity and consistency of the testimony of Yingst through examination of discussions with other individuals.

Further, Pa.R.P.C. Rule 3.7(a) discourages an attorney from acting as an advocate at a trial in which the attorney is likely to be a necessary witness.  While our discussion above reflects that Allerton clearly does not qualify as a necessary witness because she has no first-hand knowledge of the facts underlying this action and it has been held by common pleas courts of this Commonwealth that Rule 3.7(a) may not be equally applicable to preclude continued representation in situations in which a party wishes to call the opposing party’s attorney as a witness, combining the role of advocate and witness may prejudice the tribunal and potentially raise a conflict of interest between the attorney and his or her client.[5]  Rule 3.7, Explanatory Comment.  If there is a conflict between the testimony of the client and the attorney, continued representation of the client by the attorney would present a conflict of interest that would require disqualification of the attorney even if the disqualification would impose a substantial hardship upon the attorney’s client.  Id.

In light of the fact that the deposition testimony of Allerton is not reasonably likely to lead to the discovery of admissible evidence, we are not willing to risk the potential prejudice and conflict of interest that may arise from subjecting Allerton to deposition, which could result in the disqualification of the attorney who has represented Plaintiff in this cause of action since 2008.  We have little trouble concluding that deposition of Allerton would be unreasonably burdensome and oppressive under Rule 4012(a).  Accordingly, we will grant the Motion for Protective Order and will enter an Order prohibiting Defendants from deposing Allerton as contemplated by the Notice of Deposition dated October 28, 2010.