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Ciarlone v. City of Reading

October 28, 2009

MARY ANN CIARLONE, IRENE LORA, ORAZIO GERBINO AND ANNE BAEZ, PLAINTIFFS,
v.
CITY OF READING, THOMAS MCMAHON, RYAN HOTTENSTINE, BRAD REINHART, JATINDER SINGH KHOKAR, AND JAMES ORRS, DEFENDANTS.



The opinion of the court was delivered by: Henry S. Perkin United States Magistrate Judge

MEMORANDUM

Currently in this civil rights action is the Motion to Quash a Subpoena and for Protective Order filed on behalf of the Honorable Wallace S. Scott, a Berks County Pennsylvania Magisterial District Judge. For the reasons stated below, the Motion to Quash and Motion for Protective Order will be granted.

I. FACTS*fn1

Mary Ann Ciarlone ("Mrs. Ciarlone"), a Plaintiff in the instant case, owns multi-unit residential rental properties in Reading, Pennsylvania. First Am. Compl., ¶ 44. Mrs. Ciarlone lives in one unit of an eight-unit residential apartment building located on North Fifth Street. Id., ¶ 61. On October 23, 2006, a City of Reading Property Maintenance Code was amended by an ordinance which requires tri-ennial inspections of all properties, residential and commercial, rental and owner occupied, to be performed by the City. Id., ¶¶ 34, 35. The Office of Code Services served a notice by regular mail to Mrs. Ciarlone as owner of the North Fifth Street property advising her that an inspection was scheduled for April 2, 2007. Id., ¶ 60.

On April 2, 2007, Mrs. Ciarlone met Code Enforcement Officer Joseph Esterly outside the North Fifth Street property with a video recording device when he appeared for the inspection. Id., ¶¶ 63-65. Mrs. Ciarlone told Mr. Esterly to obtain a search warrant to conduct his inspection. Id., ¶¶ 66. Mr. Esterly left and returned an hour later with an unidentified woman and stated to Mrs. Ciarlone, "I just want to talk to you; I just want to talk to you." Id., ¶¶ 67-68. As Mr. Esterly and the unidentified woman approached Mrs. Ciarlone, the woman said "Yeah, that's her!" Id., ¶ 68. Mr. Esterly and the unidentified woman then left the premises. Id., ¶ 69.

Mr. Esterly made application at the office of Magisterial District Judge Deborah Lachina for a warrant to search the North Fifth Street property. Id., ¶ 70. Judge Lachina "refused to either approve or deny the [a]pplication."*fn2 Id., ¶¶ 70-71. Later on April 2, 2007, Mr. Esterly and Defendant Reinhart went to Magisterial District Judge Scott's court for purposes of making application for issuance of a search warrant. Id., ¶¶ 72-73. Judge Scott denied the application for the search warrant after allegedly overhearing Defendant Reinhart state to Mr. Esterly "I can't wait to get back at that bitch!"*fn3 Id., ¶¶ 74-75.

Approximately eighteen months later on October 7, 2008, Defendant James Orrs, a Code Enforcement Officer, attempted to conduct an inspection of Mrs. Ciarlone's three-unit residential rental property located on Oley Street in Reading. Id., ¶ 79. Mrs. Ciarlone refused to allow Defendant Orrs access to the Oley Street property because proper notice of the search was not provided to her and her tenants.*fn4 Id., ¶¶ 77, 80. On October 9, 2008, Defendant Orrs submitted an Application for Search Warrant and Affidavit of Probable Cause to Search to Magisterial District Judge Thomas X. Xavios. Id., ¶ 88. Judge Xavios issued the administrative search warrant on October 9, 2008. Id., ¶ 89. On October 10, 2008, Defendants Orrs and Reinhart were met at the Oley Street property by Mrs. Ciarlone and they presented the search warrant to Mrs. Ciarlone. Id., ¶¶ 90-91. Mrs. Ciarlone informed them that she would not participate in the search of the subject property.*fn5 Id., ¶ 91. Defendant Reinhart used a sledge hammer to gain access to the exterior security door and interior privacy doors and broke an exterior glass to gain access to the exterior lock. Id., ¶¶ 93-94, 97. Defendants Reinhart and Orrs then conducted the administrative search pursuant to the warrant.*fn6

Based upon the October 10, 2008 administrative search, Plaintiffs filed the instant civil rights action. In the First Amended Complaint, Plaintiffs allege that the search of the Oley Street apartment building was performed to harass and intimidate Mrs. Ciarlone and in purposeful disregard of the constitutional rights of Mrs. Ciarlone and the Tenant Plaintiffs. In support of their claims, Plaintiffs point to the alleged public comment made by Defendant Reinhart concerning his intention to execute the search warrant on the North Fifth Street property in order to "get back at" Mrs. Ciarlone. According to Plaintiffs, this statement is directly relevant to the motive and purpose of Defendants Reinhart and Orrs in utilizing a sledge hammer to conduct the Oley Street property inspection. In addition, Plaintiffs aver that Defendants "harbor great personal animosity" towards Mrs. Ciarlone, and Defendants sought to conduct inspections of Mrs. Ciarlone's rental properties in order to harass her. Id., ¶¶ 57-69.

To obtain discovery regarding Defendant Reinhart's alleged admission, Plaintiffs' counsel sent Judge Scott a July 23, 2009 transmittal letter with a subpoena and an attachment to the subpoena notifying Judge Scott that his deposition was scheduled for August 31, 2009. Plaintiffs' counsel invited Judge Scott to contact him to arrange for a convenient time and place to conduct the deposition. The attachment to the subpoena limited the scope of the subpoena to: the public comments made by City of Reading Codes Administrator Brad Reinhart while in your presence on April 2, 2007. These public comments were made when Brad Reinhart accompanied Code Inspector Esterly to submit an application for the issuance of a warrant to search the real property of Mary Ann Ciarlone located at [] North 5th Street property. All deposition questions will concern public comments made by Brad Reinhart -while court was not in session and not during a deliberative hearing or conference - on April 2, 2007.

Mot. to Quash, Ex. A, p. 3. On August 4, 2009, Michael Daley, Esquire, legal counsel to the Court Administrator of Pennsylvania, wrote to Plaintiffs' counsel requesting that Plaintiffs' counsel contact him to discuss the subpoena served upon Judge Scott and indicating that if Plaintiffs intended to proceed with the subpoena, a motion to quash and for protective order would be filed. On August 6, 2009, Plaintiffs' counsel and Mr. Daley discussed the subpoena but could not come to an agreement.

On August 9, 2009, the Administrative Office of Pennsylvania Courts ("AOPC") filed the instant Motion to Quash and for a Protective Order on behalf of Judge Scott on the basis that the search warrant application was a judicial proceeding involving Judge Scott's judicial capacity and statements made during the application process were not discoverable. Plaintiffs' counsel and Judge Scott's counsel conferred again to discuss ways to protect the judiciary and minimize inconvenience to Judge Scott. Plaintiffs proposed conducting Judge Scott's deposition by written interrogatories at a location and time convenient to the Judge, and limiting the number of written questions to a mutually agreeable number. On August 27, 2009, Plaintiffs filed their Response to the Motion to Quash and for a Protective Order. On August 31, 2009, the Honorable Lawrence F. Stengel referred this Motion to the undersigned for disposition, and a hearing on the Motion was held on September 30, 2009. On October 12, 2009, Plaintiffs filed a Supplemental Response to the Motion, stating that Judge Scott waived the deliberative process privilege by giving an on-the-record interview to a reporter from The Reading Eagle newspaper and making the following statement that was included in the October 12, 2009 article:

But Scott said Reinhart was on a vendetta when he came to Scott's office seeking a search warrant to inspect another Ciarlone-owned property on North Fifth Street in April 2007. Scott said Reinhart stated that he wanted to "get" Ciarlone. "I said that's not a reason to do a search warrant," Scott said. He said Reinhart angrily got up and walked out.

Pls.' Supp. Resp., p. 2. A Response to the Supplemental Response was filed ...


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