Zabresky v. Von Schmeling et al

Filing 87

MEMORANDUM re 61 MOTION to Quash and for a Protective Order filed by Joseph Musto, 72 MOTION for Protective Order filed by Chester Muroski, Clinton Smith - order to followSigned by Honorable Malachy E Mannion on 4/5/13. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL F. ZABRESKY,

:

Plaintiff

:

v.

CIVIL ACTION NO. 3:12-0020

:

JULIANNE VON SCHMELING,
et al.,

(JUDGE MANNION)

:
:

Defendants
:
MEMORANDUM1
Presently before the court are two motions seeking to limit discovery
with respect to three judges who are not parties to the action. The first is a
motion to quash and for a protective order filed by Judge Joseph Musto, (Doc.
No. 61). The second is a motion for a protective order filed by Judge Clinton
Smith and Judge Chester Muroski, (Doc. No. 72). Finding that this case
presents no extraordinary circumstances to warrant further exploration of prior
judicial actions in the underlying dispute, the court will grant Judge Musto’s
motion to quash and issue a protective order for each of the three judges.

1

For the convenience of the reader of this document in electronic format,
hyperlinks to the court’s record and to authority cited have been inserted. No
endorsement of any provider of electronic resources is intended by the court’s
practice of using hyperlinks.

I.

BACKGROUND
In his amended complaint, the plaintiff alleges that he was improperly

arrested for failure to make child support payments. (Doc. No. 38). The
plaintiff alleges that the mother of his child, Defendant von Schmeling,
conspired with members of the Domestic Relations Section of Luzerne County
(hereinafter the “Luzerne County Defendants”) to have him arrested despite
the fact that he had fully paid his support obligations. As part of the discovery
process, the plaintiff subpoenaed the testimony of three judges who were
involved in related court proceedings but are not parties to the instant matter.
On January 18, 2013, Judge Joseph Musto of the Court of Common
Pleas for Luzerne County,2 filed a motion to quash a subpoena he received3
in the underlying matter and for a protective order, (Doc. No. 61), a brief in
support, (Doc. No. 63), and an exhibit, (Doc. No. 62). On February 1, 2013,
the plaintiff filed a brief in opposition, (Doc. No. 68). On February 4, 2013, all
other defendants, with the exception of Ms. von Schmeling, also filed a brief
in opposition, (Doc. No. 69), and an appendix of exhibits, (Doc. No. 70). On

2

Judge Musto has retired from the bench since the alleged events in
this case occurred.
3

Though Judge Musto acknowledges the subpoena, he alleges that it
was not properly served because someone simply opened the door of his
house and left the subpoena inside which is inadequate under Fed. R. Civ. P.
45(b)(1). The court notes the defense of improper service but finds it is
ultimately rendered immaterial upon the courts issuance of a protective order.
2

February 15, 2013, Judge Musto filed a brief in reply, (Doc. No. 74).
On February 14, 2013, Judge Clinton Smith of the Court of Common
Pleas for Lycoming County,4 and Judge Chester Muroski of the Court of
Common Pleas for Luzerne County, filed a motion for a protective order, (Doc.
No. 72), and brief in support, (Doc. No. 73).5 On March 3, 2013, the plaintiff
filed a brief in opposition to the motion, (Doc. No. 77). On March 19, 2013,
Judges Smith and Muroski filed a brief in reply, (Doc. No. 86).
Relevant to the instant motions are facts regarding the nature and
extent of the involvement of each of the judges. According to the plaintiff’s
amended complaint, Judge Musto presided over the 2009 support
proceedings during which the plaintiff’s support obligations were increased
from $533.00 per month to $783.00 per month. (Doc. No. 38). The plaintiff
alleges that at a contempt hearing related to the proceedings Judge Musto
told the plaintiff that $533.00 would be sufficient for his next monthly payment
despite the court’s prior written order raising the monthly payment to $783.00.
The plaintiff attached a partial transcript from the hearing which did not

4

Judge Smith was sitting on the bench of the Court of Common Pleas
of Luzerne County during the relevant period. Judge Smith has retired from
the bench since the alleged events in this case occurred.
5

In their motion Judge Smith asserts that he was not served with a
subpoena and Judge Muroski asserts that service upon him was not proper.
The court notes the defense of improper service but finds it is ultimately
rendered immaterial upon the courts issuance of a protective order.
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include any definitive record of Judge Musto’s alleged statement. In addition,
the plaintiff has alleged that Defendants von Schmeling, Quinn and Duffy
were present at the time of the statement. Moreover, according to the
transcript of the proceedings, Attorneys Donald Rogers and Michael Mey
were also present. (Doc. No. 38, Att. 1 at 8).
The plaintiff’s brief in opposition to Judge Musto’s motion to quash also
alleges that an ex parte conversation between Judge Musto and Defendant
Davis, Director of the Domestic Relations Section, took place at some point
after the contempt hearing but before the plaintiff was taken into custody.
Though the plaintiff claims he was never told of the conversation nor has
knowledge of the content, the plaintiff believes that it was precipitated by
Defendant von Schmeling. (Doc. No. 68 at 11).
Judge Clinton Smith’s involvement is limited to his signing of the
allegedly faulty bench warrant on which several of the defendants relied in
arresting the plaintiff. The plaintiff’s brief in opposition to the judges’ motion
for a protective order indicates that the plaintiff seeks information regarding
the stamping of the warrant and other clerical processes related to the
issuance of the warrant. (Doc. No. 77).
Judge Chester Muroski is not mentioned in the plaintiff’s amended
complaint. In the motion for a protective order, Judge Muroski indicates that
he presided over some of the plaintiff’s support proceedings in 2000 and 2001

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and again in 2012, but none of these contentious hearings are directly at
issue. (Doc. No. 72 at 4; Doc. No. 72, Att. 3).

II.

DISCUSSION
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 Fed. R. Civ. P. 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, issue an order to
protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense[.] Fed. R. Civ. P. 26(c)(1).
In addition, as the parties have correctly identified, there is specific case
law examining the limits of discovery of judicial officers and judicial acts. In
Ciarlone v. City of Reading, 263 F.R.D. 198, 202 (E.D.Pa. 2009), the United
States District Court for the Eastern District of Pennsylvania discussed the
general rule that “[t]he decision making process of a judge is usually not a
discoverable matter.” Ciarlone, 263 F.R.D. at 202 (citing United States v.
Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941); Grant v.
Shalala, 989 F.2d 1332, 1344-45 (3d Cir.1993)). The district court found that,

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generally, a judge may not be compelled to testify regarding his or her mental
process and “only in the most extraordinary cases, such as a strong showing
of bad faith or improper behavior by a judge or quasi-judicial officer or where
circumstances were such to overcome the presumption of regularity as to the
acts of the decision maker, may a judge be questioned as to matters within
the scope of his adjudicative duties.” Id. (quoting U.S. v. Roebuck, 271
F.Supp.2d 712, 718 (D.Virgin Islands 2003))(internal citations omitted).
The plaintiff attempts to distinguish the testimony he seeks as purely
factual evidence, separate and apart from any inquiry into the judges’ mental
processes. The plaintiff points to a footnote in an opinion from the Superior
Court of Pennsylvania which recognizes a possible distinction between purely
factual testimony and testimony regarding a judge’s mental process when
“the testimony of a judicial officer is sought regarding a matter in which he or
she merely happened to witness or was personally involved in a circumstance
that later becomes the focus of a legal proceeding.” Leber v. Stretton, 928
A.2d 262, n.12 (Pa. Super. Ct. 2007). This court believes the practice of
questioning a judge about factual occurrences during a judicial proceeding
while successfully avoiding any inquiry into his or her mental process to be a
task of exceeding difficulty, if it is even possible. Rather, the court agrees with
the ultimate conclusion of the Pennsylvania Superior Court in Leber; where
the court held that compelling the testimony of judges “regarding events which

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occurred in the course of their judicial duty not only will take time away from
their role as district judges but also necessitates delving into the thought
processes they utilized in those positions.” Leber, 928 A.2d at 270. The
Pennsylvania Superior Court continued: “[a]s a matter of public policy, we find
this type of questioning unacceptable and hold that judicial officers are
immune from testifying as to information surrounding their conduct during an
official proceeding.” Id.
With respect to each of the judges moving for a protective order, the
court finds no extraordinary circumstances exist in the current matter to
warrant disturbing the general prohibition against compelling the testimony of
judicial officers. There have been no allegations of bad faith or improper
motive made against any of the moving judges. Moreover, all of the alleged
conduct was either directly part of or closely related to judicial proceedings
and was witnessed by other individuals who are available to testify.
Nevertheless, the court will further discuss the factual circumstances
surrounding each judges’ alleged involvement in the instant case.
A. Judge Musto
The plaintiff seeks testimony from Judge Musto regarding whether the
judge told the plaintiff he could pay a lesser amount of support during a
November 2009 proceeding and what was said during an alleged and
apparently unwitnessed ex parte conversation with Defendant Davis. The

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Luzerne County Defendants also seek the judge’s testimony regarding the
amount of support to be paid.
The court finds no extraordinary circumstances exist to compel Judge
Musto to provide testimony. It is undisputed that a written order stated that the
plaintiff was to make support payments of $783.00 per month. The plaintiff
now asserts that Judge Musto’s statement at the hearing cast doubt on the
validity of the written order. Such confusion is properly clarified by appropriate
motion at the time of the statement, not by subpoena of the judge years later.
Moreover, mere confusion as to what a Judge may have said does not rise to
the level of the extraordinary circumstance required to overcome the general
prohibition on compelling judges to testify about their adjudicative duties.
The plaintiff further argues that he will be prejudiced if he is deprived of
the evidence Judge Musto can provide. The court finds no indication that the
plaintiff will be unable to secure the evidence sought through other means. It
is not disputed that the plaintiff, most of the named defendants and at least
two attorneys were presents at the hearing. In addition, Judge Musto has
asserted that an audio recording of the proceeding exists. (Doc. No. 63 at 6).
Finally, the plaintiff attached a partial transcript of the proceeding to his
amended complaint, indicating to the court that a transcript of the proceeding
is indeed available. With respect to the alleged ex parte conversation,
Defendant Davis is alleged to have been a party to the conversation and can

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testify as to its subject matter.
Finding that no exception to the general rule against compelling judges
to testify exists, the court will issue a protective order barring all parties from
serving a subpoena on Judge Musto.
Judge Musto’s motion also seeks to quash an outstanding subpoena to
testify in the instant case. Under Fed. R. Civ. P. 45(c)(3)(A), “[o]n timely
motion, the issuing court must quash or modify a subpoena that... requires
disclosure of privileged or other protected matter...or subjects a person to
undue burden.” The court’s issuance of a protective order would insulate
Judge Musto from having to comply with the subpoena; however, Judge
Musto has moved to quash the outstanding subpoena and the court finds that
quashing the subpoena would be appropriate. Laying aside Judge Musto’s
claim of improper service, the court finds the information sought is of a
protected nature as well as presenting an unnecessary burden on Judge
Musto because it is available from other sources. Therefore, the court will
grant Judge Musto’s motion to the extent it requests that the subpoena be
quashed.
B. Judge Smith
The plaintiff seeks testimony from Judge Smith regarding the clerical
process through which his signature came to be stamped on an arrest warrant
for the plaintiff. As discussed above, the plaintiff has made no showing of any

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extraordinary circumstances which require the testimony of Judge Smith.
Moreover, during the telephone conference held March 11, 2013, counsel for
the plaintiff requested leave to depose Judge Smith’s secretary regarding the
same stamping procedures. The court granted the plaintiff leave to take this
deposition and believes it will be sufficient to provide the information sought
without any risk of inquiry into Judge Smith’s mental process. Therefore, the
court will issue a protective order barring all parties from serving a subpoena
on Judge Smith.
C. Judge Muroski
Judge Muroski is not mentioned in the plaintiff’s amended complaint nor
does the plaintiff’s brief in opposition to the motion for protective order identify
specific information the plaintiff seeks to obtain from Judge Muroski. In fact,
beyond generalized arguments that judges are not immune from testifying, the
plaintiff’s brief in opposition raises no specific arguments as to why the
general rule against compelling judges to testify should not apply to Judge
Muroski. Devoid of any explanation of the evidence sought or argument as to
why Judge Muroski’s testimony is required, the plaintiff’s opposition to the
issuance of a protective order cannot succeed. Therefore, the court will issue
a protective order barring all parties from serving a subpoena on Judge
Muroski.

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III.

CONCLUSION
Finding no extraordinary circumstances in the instant case to overcome

the general rule against compelling judges to testify regarding their
adjudicative duties, the court will issue protective orders barring all parties
from serving subpoenas on Judge Musto, Judge Smith and Judge Muroski.
In addition, the court will grant Judge Musto’s motion to quash the outstanding
subpoena for his testimony. An appropriate order will follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: April 5, 2013
O:\Mannion\shared\MEMORANDA - DJ\2012 MEMORANDA\12-0020-02.wpd