Nicholas Malfitano Dec. 31, 2015, 10:38am


HARRISBURG – Tullytown Borough’s attempt to obtain a protective order to prevent deposition of borough employees has been turned back at both the trial court and appellate levels.

In a Dec. 11 decision from the Commonwealth Court of Pennsylvania and judges Dan Pellegrini, Robert Simpson and Rochelle S. Friedman (a decision Friedman authored), the Commonwealth Court upheld the decision from the Bucks County Court of Common Pleas to refuse the borough’s motion for a protective order.

Appellees Edward Armstrong, Robert Campanaro, Edward Czyzyk, and George Fox filed a Writ of Summons to initiate a civil rights action against Tullytown Borough in August 2014, and followed up a month later with a list of nine borough employees they wished to depose as a part of that process. Though the employees were identified, the appellees initially did not provide specific reasons for the depositions.

The employees were four Tullytown police officers, John Finby, Philip Kulan, Andrew Bunda, and Ryan Bunda; two former Tullytown police officers, Shawn McLister and James Reichel; the current Tullytown Chief of Police, Daniel Doyle; the former Tullytown Chief of Police, Patrick Priore; and Chairman of the Tullytown Police Committee, Councilman Matthew Pirolli.

On Oct. 30, 2014, the Borough filed a motion for a protective order, arguing that the appellees’ request for the depositions was “expansive and without justification” and lacking an explanation as to their connection to the filing of a complaint. The Borough further termed the appellees’ lawsuit as “frivolous” and a “fishing expedition”, to gain information for use in a then-upcoming election.

The appellees argued they “have reason to believe that Borough Police Officers were spying on campaign meetings of appellees, who were candidates for Borough Council positions, at various locations within the Borough.” The appellees further argued that they were advised these same officers “were ordered to follow the activities of the appellees as candidates for office in 2013.”

In opposition, the Borough claimed the appellees “wanted to depose the entire Tullytown Police Department” and averred no proven facts of record in their allegations.

The trial court denied the Borough’s motion for a protective order on Jan. 15, which led them to file requests for reconsideration and certification of the order for interlocutory appeal. These were also denied on Feb. 11, and the Borough petitioned the Commonwealth Court for its review, feeling the trial court erred in “determining the appellees demonstrated that the nine requested depositions were material and necessary to draft a complaint.”

Following relevant Pennsylvania Rules of Civil Procedure, the Commonwealth Court assumed the facts averred by the appellees were true.

Friedman said, “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.”

Friedman explained per review of the trial court ruling and based on the Borough’s admissions, they were correct in deciding to deny the Borough’s motion for a protective order.

“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,” Friedman said.

Pellegrini concurred with the decision’s result only, according to court records.

The appellant is represented by Michael T. Sellers in Newtown and Frank J. Lavery Jr. of Lavery Faherty in Harrisburg.

The appellees are represented by Lawrence M. Otter in Silverdale.

Commonwealth Court of Pennsylvania case No. 239 C.D. 2015

Bucks County Court of Common Pleas case 2014-05675

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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