TomBev Restaurant v. Certain Underwriters
370 EDA 2016
| Pa. Super. Ct. | Jan 27, 2017Background
- March 10, 2015 fire at the Indian Rock Inn; Pennsylvania State Police (PSP) Trooper LaBar investigated and prepared a report.
- TomBev (owner) sued its insurer, Certain Underwriters at Lloyd’s of London, for breach of contract and bad faith; Lloyd’s said it would await PSP’s investigation.
- TomBev subpoenaed Trooper LaBar for all investigation records on July 2, 2015; Trooper LaBar refused citing an ongoing criminal investigation.
- Trial court compelled an answer, held an in-camera review of PSP’s sealed report, then ordered disclosure of most of the report to TomBev and Lloyd’s while withholding PSP counsel’s cover letter and one supplemental report.
- PSP appealed, arguing (1) it did not waive objections to the subpoena and (2) disclosure would violate the Criminal History Record Information Act (CHRIA) and/or a common-law executive privilege.
- The Superior Court reversed the trial court: it found no waiver by PSP, concluded the sealed report was investigative information under Grove and CHRIA, and held the trial court erred in ordering disclosure (also rejected sustaining the order on common-law privilege grounds in favor of PSP).
Issues
| Issue | Plaintiff's Argument (TomBev) | Defendant's Argument (PSP) | Held |
|---|---|---|---|
| Whether PSP waived objections by not timely objecting to the subpoena | TomBev: Subpoena served on trooper; no timely objection → waiver | PSP: Subpoena not properly served on PSP records custodian; timely objection raised after contempt hearing | Held: No waiver — service was improper and PSP raised objections at first opportunity |
| Whether CHRIA bars disclosure of the PSP investigative report to non–criminal-justice parties | TomBev: Report contains non-investigative material (property damage facts) and can be disclosed; parties agreed to redact suspect IDs | PSP: Entire report is investigative (created for a criminal inquiry) and CHRIA forbids dissemination to non-criminal-justice agencies | Held: CHRIA protects the report — court erred in finding the report non-investigative; disclosure would violate CHRIA |
| Whether CHRIA creates an absolute evidentiary privilege in civil discovery | TomBev: CHRIA’s nonpublication interest should not bar civil discovery here; info needed for civil case | PSP: CHRIA’s disclosure prohibitions prevent dissemination in civil discovery | Held: Unclear that CHRIA alone creates an absolute privilege; court analyzed common-law executive-privilege factors and found government interest outweighs disclosure needs |
| Whether trial court properly balanced government interest vs. litigant’s need (executive/governmental privilege test) | TomBev: Report is relevant and important to insurer suit; Lloyd’s cannot delay handling claim based on PSP | PSP: Ongoing investigation, close to DA referral; nondisclosure required to protect investigation and witnesses | Held: Balance favors nondisclosure — factors (ongoing investigation, investigative nature, availability of other means) support reversing disclosure order |
Key Cases Cited
- McGovern v. Hospital Service Association of Northeastern Pennsylvania, 785 A.2d 1012 (Pa. Super. 2001) (failure to object to subpoena does not automatically waive privilege; service on proper custodian matters)
- Pa. State Police v. Grove, 119 A.3d 1102 (Pa. Cmwlth. 2015) (records created to document or report a criminal investigation are investigative and may be protected; MVRs generally not investigative but interview audio portions are)
- Department of Auditor General v. Pennsylvania State Police, 844 A.2d 78 (Pa. Cmwlth. 2004) (discusses CHRIA’s scope and protection of investigative information)
- Ben v. Schwartz, 729 A.2d 547 (Pa. 1999) (legislative protection of records does not automatically create an evidentiary privilege in court proceedings)
- Rae v. Pennsylvania Funeral Directors Association, 977 A.2d 1121 (Pa. 2009) (collateral-order jurisdiction appropriate where disclosure cannot be undone and important rights are implicated)