Appeal from Order of the Court of common Pleas, Civil Division, of Philadelphia County, No. 3855 August, 1983 No. 2577 Philadelphia, 1983
Stephen W. Bruccoleri, Philadelphia, for appellant.
Jonathan Wheeler, Philadelphia, for appellee.
Wieand, Beck and Cercone, JJ.
[ 342 Pa. Super. Page 629]
This appeal seeks to determine whether a trial court can properly issue a preliminary injunction prohibiting the use of subpoenas to compel ex parte productions of scholastic and other records of a non-litigant for examination by an attorney and his client. We conclude that in this case the issuance of the preliminary injunction was based on reasonable grounds and affirm.
"[O]n an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere
[ 342 Pa. Super. Page 630]
with the decision of the [trial court]." Mazzie v. Commonwealth, 495 Pa. 128, 133, 432 A.2d 985, 988 (1981), quoting Roberts v. Board of Directors of School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975). See also: Singzon v. Commonwealth, Department of Public Welfare, 496 Pa. 8, 10-11, 436 A.2d 125, 126-127 (1981); Bell v. Thornburgh, 491 Pa. 263, 267-268, 420 A.2d 443, 445 (1980). A preliminary injunction, however, should be granted only where the rights of the plaintiff are clear, the need for relief is immediate, and the injury irreparable. South Fayette Township v. Commonwealth, 477 Pa. 574, 580, 385 A.2d 344, 347 (1978); Zebra v. Pittsburgh School District, 449 Pa. 432, 437, 296 A.2d 748, 750 (1972); Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa. Super. 293, 301, 464 A.2d 1349, 1353-1354 (1983).
Jill Cohen, Esquire, was law clerk to the Honorable Bernard Snyder during the period in which Judge Snyder presided over the non-jury trial of a case in which NABCOR and Frank Maiorana sought to recover damages against Philadelphia National Bank (PNB). The plaintiffs in that action were represented by Gustine J. Pelagatti, Esquire, who was successful in recovering a verdict for them in the amount of 8.7 million dollars. During the period of Jill Cohen's clerkship, Judge Snyder had also presided at a trial in which James R. Edgehill alleged that he had been libeled by Philadelphia Magazine. In the Edgehill action, a petition for the recusal of Judge Snyder was filed by Philadelphia Magazine, and Jill Cohen was named as a witness. Although she was not permitted to testify, an offer of proof was made and included an accusation of improper conduct on the part of the trial judge. The offer of proof also contained references to alleged improprieties during the NABCOR trial.
At the time when this offer of proof became known publicly via the news media, post-trial motions had already been filed in the NABCOR action and were then awaiting disposition. Counsel for PNB suggested to Pelagatti that he was considering the use of Jill Cohen's testimony as a
[ 342 Pa. Super. Page 631]
basis on which to attack NABCOR's verdict against PNB. Pelagatti thereupon caused subpoenas to be issued ex parte to various educational institutions, including Enfield Middle School, Springfield Township Board of Education, Franklin and Marshall College, Temple University and the Delaware Law School, for the production of Jill Cohen's scholastic records. Pelagatti also suggested that Jill Cohen had a record of psychiatric disorders and attempted to use a subpoena to ...