UGI Sunbury LLC v A Permanent Easement

Filing 40

MEMORANDUM (Order to follow as separate docket entry) re 34 MOTION for Protective Order filed by Donald D. Pontius, Georgia A. Pontius. Signed by Honorable Matthew W. Brann on 12/7/2016. (ch1)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UGI SUNBURY LLC,

:
:
Plaintiff,
:
:
v.
:
:
A PERMANENT EASEMENT FOR
:
0.4308 ACRES IN THE BOROUGH OF
:
SHAMOKIN DAM, SNYDER COUNTY
:
PENNSYLVANIA TAX PARCEL NO.
:
16-04-059
:
:
DONALD D. PONTIUS AND GEORGIA
:
A. PONTIUS, CO-TRUSTEES OF THE
:
DONALD D. AND GEORGIA A.
:
PONTIUS LIVING TRUST
:
P.O. Box 252
:
Hummels Warf, PA 17831
:
:
BOROUGH OF SHAMOKIN DAM
:
th
42 W. 8 Avenue, Suite 1
:
P.O. Box 273
:
Shamokin Dam, PA 17876
:
:
COMMONWEALTH OF PENNSYLVANIA :
DEPARTMENT OF TRANSPORTATION :
400 North Street
:
Harrisburg, PA 17120
:
:
AND ALL UNKNOWN OWNERS
:
:
Defendants.
:
MEMORANDUM
December 7, 2016

1 

Case No. 3:16-CV-00794
(Judge Brann)

Before the Court for disposition is Defendants Donald D. Pontius and Georgia
A. Pontius, Co-Trustees of the Donald D. and Georgia A. Pontius Living Trust’s
(“Defendants”) Motion for a Protective Order. For the following reasons, this
Motion will be denied.
I.

BACKGROUND
On May 9, 2016, Plaintiff UGI Sunbury LLC (“Plaintiff”) initiated the

current action by filing a Complaint in this Court seeking the condemnation of a
tract of land owned by Defendants which was needed to construct the Sunbury
Pipeline Project. Following the filing of an Answer by Defendants, Plaintiff
moved for (1) a Preliminary Injunction, (2) Partial Summary Judgment, and (3) a
Hearing concerning both pending Motions. In a Memorandum Opinion and Order
issued on August 2, 2016, I granted Plaintiff’s Motions for Preliminary Injunction
and for Partial Summary Judgment. In so doing, I held that Plaintiff has a
substantive right to condemnation and was in immediate possession of the rights of
way sought through the action. Plaintiff was then directed to post a surety bond
with the Clerk of Court pending the ultimate determination of just compensation
for the condemned land.
Following the filing of a Joint Case Management Plan, the Court held an
Initial Case Management Conference on October 27, 2016. In this conference, the
Court set numerous litigation deadlines later memorialized in a Case Management
2 

Order of that same date. Defendants had previously moved for the imposition of a
protective order barring the deposition of Defendant wife/property owner. The
parties have briefed the issue, and, in the absence of a Reply Brief by Defendants,
the Motion became ripe on November 26, 2016.
II.

DISCUSSION
A. Legal Standard
Federal Rule of Civil Procedure 26(b)(1) provides that a party “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.”1 Although all relevant
material is discoverable unless an applicable evidentiary privilege is asserted,
Federal Rule of Civil Procedure 26(c) establishes that a “court may, for good
cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense . . . ”2 The burden of showing “good
cause” rests with the party seeking the protective order.3 The moving party must
show with specificity that “disclosure will work a clearly defined and serious
injury to the party.”4 “Good cause” cannot simply rest on “[b]road allegations of

1

Fed.R.Civ.P. 26(b)(1).

2

Fed.R.Civ.P. 26(c).

3

Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986).

4

Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994) (citing Publicker Indus.,
Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)).

3 

harm, unsubstantiated by specific examples or articulated reasoning.”5
Furthermore, even when the moving party has met its burden for a protective order,
such an order “must be narrowly drawn as to not constitute an abuse of
discretion.”6
Within the United States Court of Appeals for the Third Circuit, seven
factors have been recognized in evaluating where “good cause” exists:
(1) whether disclosure will violate any privacy interests; (2) whether
the information is being sought for a legitimate purpose or for an
improper purpose; (3) whether disclosure of the information will
cause a party embarrassment; (4) whether confidentiality is being
sought over information important to public health and safety; (5)
whether the sharing of information among litigants will promote
fairness and efficiency; (6) whether a party benefitting from the order
of confidentiality is a public entity or official; and (7) whether the
case involves issues important to the public.7
The District Court is best positioned to decide which factors are relevant to the
dispute at issue, and thus to “prevent both the overly broad use of [confidentiality]
orders and the unnecessary denial of confidentiality for information that deserves
it.”8

5

Cipollone, 785 F.2d at 1121.

6

Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 529 F.Supp. 866, 892 (E.D.Pa. 1981).

7

Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (citing Pansy, 23 F.3d at
787–91).
8

Pansy, 23 F.3d at 789.

4 

B. Analysis
In the instant matter, Defendants seek a protective order barring the
deposition of Georgia A. Pontius. They specifically argue that, based on the
depositions of Ralph and Rusella Moerschbacher in a related civil action,9 the
deposition would be both duplicative, and used to annoy, embarrass, and otherwise
seek privileged information from Mrs. Pontius. Following a review of the
Moerschbacher depositions and the parties’ briefing, I find that Defendants have
not shown “good cause” justifying the imposition of a protective order. I will
therefore deny the instant Motion.
Federal Rule of Civil Procedure 30(a)(1) stipulates that “[a] party may, by
oral questions, depose any person, including a party, without leave of court.”
Although the reach of this rule may nevertheless be avoided by attaining a
protective order, a party seeking such an order “bears a heavy burden” in showing
“good cause.” 10 It is therefore “rare for a court to issue a protective order that
prohibits a deposition.”11 In the instant matter, Defendants argue that they have
met this “heavy burden” and have shown that “good cause” exists justifying the
issuance of such an order. I disagree.

9

Docket No. 3:16-CV-00789.

10

United States v. Mariani, 178 F.R.D. 447, 448 (M.D.Pa. 1998)(Vanaskie, J.).

11

Id.

5 

First, Defendants argue that depositions of both Mr. and Mrs. Pontius would
be duplicative and thus would cause undue burden or expense. I am unpersuaded
by this argument. Specifically, I find that the representation of Defendants’
counsel that he will only use Mr. Pontius’ testimony at trial does not foreclose
Plaintiff’s right to depose Mrs. Pontius, nor does it promote the finding of good
cause. Furthermore, to the extent Defendants argue that Mrs. Pontius’ testimony
will be duplicative or without value due to her supposed lack of knowledge, the
Court holds that Plaintiff is entitled through deposition to ascertain for itself the
extent of Mrs. Pontius’ knowledge.12 While the deposition of Russella
Moerschbacher does not appear to have uncovered information independent of that
previously unearthed during her husband’s deposition, there is no reason to think
this symmetrical knowledge of information would apply to all married persons.
The Court would therefore be remiss to assume the general applicability of this
proposition, as advanced by Defendants.  
Defendants further argue that good cause exists for the imposition of a
protective order because the deposition of Mrs. Pontius would cause annoyance,
embarrassment, and seek otherwise privileged information. To support this
argument, Defendants again cite the deposition of Russella Moerschbacher in the
related civil case. As previously noted, I have reviewed the deposition of Mrs.

12

See, e.g., Malat v. Potak, Civil Action No. 79-3138, 1999 WL 395119 at *1 (E.D.Pa. May 21,
1999).

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Moerschbacher together with that of her husband. I find this citation unpersuasive
as to the conclusion that the deposition would unduly annoy or embarrass Mrs.
Pontius. Defendants’ reliance on mere conclusory allegations within their briefing
fails to alter this conclusion. “Good cause,” as previously noted, cannot simply
rest on broad allegations of harm, but rather must be supported by specific
reasoning or examples.13 Defendants’ lack of specificity concerning the causes of
annoyance or embarrassment is therefore fatal to their entitlement to relief. 
Finally, I am unconvinced that Plaintiff is seeking privileged information
through the deposition of Mrs. Pontius. While the questioning of Russella
Moerschbacher at times implicated privileged information, her counsel, Mr.
Faherty, rightly objected and the deposition was re-oriented the deposition to the
relevant14 issues of (1) property use, (2) Defendants’ affirmative defenses to
Plaintiff’s condemnation action, and (3) just compensation. There is no indication
that privileged information was revealed, and counsel for both parties amicably
resolved many disputes. I am confident that they can do this again. It is therefore
my conclusion that the mere potential that questioning within a deposition may

13

Cipollone, 785 F.2d at 1121.

14

Fed. R. Civ. P. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) that fact is of consequence in
determining the action.”).

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compel an evidentiary objection does not justify the imposition of an outright bar
on the deposition.15
III.

CONCLUSION

Based on the above reasoning, Defendants Donald D. Pontius and Georgia
A. Pontius, Co-Trustees of the Donald D. and Georgia A. Pontius Living Trust’s
Motion for Protective Order is denied.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

15

Musko v. McCandless, Civil Action No. 94-3938, 1995 WL 580275 at *1 (E.D.Pa. Sept. 29,
1995) (denying a motion for a protective order where “an oral deposition could pose some
difficulty in this case, in light of the attorney-client privilege.”).

8