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Bifano v. Borough

United States District Court, M.D. Pennsylvania

April 26, 2017



          MALACHY E. MANNION United States District Judge

         Presently before the court is a motion for a protective order filed by defendants Waymart Borough (“Borough”) and Frederick J. Glavich (“Police Chief Glavich”). (Doc. 28). The defendants' motion is in response to the request by plaintiffs Joseph Bifano (“Corporal Bifano”) and Keith Rynearson (“Sergeant Rynearson”) to depose a Borough councilmember, Jane Varcoe (“Councilmember Varcoe”). The defendants seek to protect confidential attorney-client communications during closed-door executive meetings with the solicitor of the Borough, Chris Farrell (“Solicitor Farrell”). Based on the foregoing reasons, the defendants' motion is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         On February 11, 2016, the plaintiffs initiated this civil rights action alleging that the defendants violated Pennsylvania's Whistleblower Law, 43 Pa. Stat. Ann. §1421 et seq., the First Amendment, and that Police Chief Glavich defamed the plaintiffs under Pennsylvania law. (Doc. 1). The plaintiffs' dispute revolves around their firing from the Borough's police department on January 5, 2016 and the events leading up to their firing. The plaintiffs allege that their firing was in retaliation for complaints they made about Police Chief Glavich's on-duty conduct.

         On March 16, 2016, the defendants filed a motion to dismiss the plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 8). On December 22, 2016, the court granted in part and denied in part the motion to dismiss. (Doc. 18). The court also granted leave to the plaintiffs to amend their whistleblower claim. The plaintiffs did not file an amended complaint. The defendants answered the plaintiffs' complaint on January 4, 2017. (Doc. 19).

         The court held a case management conference with the parties on February 7, 2017 and, currently, the parties are engaged in discovery. (See Doc. 23). The plaintiffs seek to depose Councilmember Varcoe. (Doc. 28 ¶2). Her deposition is currently scheduled for May 5, 2017. (Doc. 35 at 2). The plaintiffs believe that Councilmember Varcoe has relevant information regarding the true reason for their firing based on an email communication the plaintiffs received directly from her. (See Doc. 36, Ex. D). The plaintiffs also seek to depose former mayor of the Borough, Jack Millard, [1] and treasurer of the Borough, Shelly Gogolski (“Treasurer Gogolski”). (Doc. 28 ¶5).

         On April 3, 2017, after failed discussions with the plaintiffs' counsel regarding the scope of depositions, particularly Councilmember Varcoe's deposition, the defendants filed the current motion for a protective order with a brief in support. (Docs. 28-29). The plaintiffs properly filed a brief in opposition with exhibits on April 19, 2017, (Docs. 35-36). The defendants filed a formal reply brief on April 17, 2016, with an attached exhibit. (Doc. 33).

         The defendants request that the court issue a broad protective order prohibiting Councilmember Varcoe, Jack Millard, Treasurer Gogolski, employees, and officers of the Borough from testifying or revealing the substance of any discussions that took place in executive sessions/meetings held in the presence of Solicitor Farrell based on the attorney-client privilege. (Doc. 28-1). The defendants' motion and brief in support refer to “executive sessions” in the plural, indicating that more than one session or meeting took place. (Doc. 28 ¶3; Doc. 29 at 2). The plaintiffs' brief in opposition discusses a September 8, 2015 executive meeting that took place at some point during a regular, public meeting of the Borough. (See Doc. 36, Ex. A). Councilmember Varcoe was in attendance at this meeting; Solicitor Farrell was excused from attendance. (See id.). Jack Millard was not in attendance and, instead, a letter was submitted on his behalf and read into the record noting his resignation as mayor of the Borough, effective as of the date of the meeting. (Id., Ex. A at 4). No guests or citizens from the public were in attendance at the meeting. (Id., Ex. A at 2).

         The defendants' reply refers to an executive meeting held on October 13, 2015 after the close of a regular, public meeting held on that date. (See Doc. 33-1). The meeting was called by Solicitor Farrell at 7:14 p.m. specifically for the purpose of “discuss[ing] possible litigation within the police department.” (Id. at 5). Jane Varcoe was likely in attendance at this executive meeting. One citizen from the public was in attendance at the regular meeting. (Id. at 2). In addition, a borough supervisor from Uniondale, Pennsylvania attended the regular meeting. (Id. at 4).

         The defendants have not indicated any other specific dates where executive meetings occurred, although the court is sure that more did in fact occur either with or without Solicitor Farrell present. (See, e.g., Doc. 36, Ex. C). The court's discussion, however, will be limited to communications during the above two meetings as these are the only two dates where the parties have provided the court with sufficient facts to make a determination with respect to privileged information.


         Generally, the scope of discovery is broad. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1) (emphasis added). The information need not be admissible to be discoverable. Id. Privileged information, however, is clearly not discoverable. The court must limit discovery if it determines that the information sought is outside the proper scope of discovery. Fed. R. Civ. P. 26(b)(2)(iii).

         A motion for a protective order is a proper method for challenging inappropriate discovery requests. The court's general authority to issue a protective order is governed by Federal Rule of Civil Procedure 26©, which reads, in pertinent part:

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending-or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, ...

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