RAZZANO et al v. SARANDREA et al

Filing 61

OPINION & ORDER re 56 MOTION to Compel Testimony filed by Plaintiffs ROBERT RAZZANO and BARBARA RAZZANO indicating that said motion is GRANTED as set forth in the Opinion. Discovery is extended to February 20, 2019, solely for two limited depositions in accord with the Opinion, as well as any necessary directly related discovery. An Order setting Summary Judgment deadlines will be entered. Signed by Judge Marilyn J. Horan on 12/27/18. (rtw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROBERT RAZZANO and
BARBARA RAZZANO
Plaintiffs,
v.
JOHN SARANDREA and THE NEW
CASTLE AREA SCHOOL DISTRICT,
Defendants.

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Civil No. 17-1046

OPINION AND ORDER
Presently before the Court is Plaintiffs’ motion to compel the testimony of Defendant John
Sarandrea as well as the Solicitor for Defendant New Castle Area School District (the School
District”). ECF No. 56. As explained below, during his deposition Mr. Sarandrea testified that
he performed certain acts at the direction of the School District’s Solicitor. Counsel for Mr.
Sarandrea and the School District objected to further questioning of Mr. Sarandrea on the subject.
Counsel similarly objected to questioning of the Solicitor at his deposition claiming attorney client
privilege. Accordingly, Mr. Razzano filed a motion to compel testimony. The School District
has filed a brief in opposition, to which Mr. Razzano has filed a reply. ECF Nos. 59 & 60. Mr.
Sarandrea did not file a response to the motion. For the reasons stated below, the motion will be
granted.
I.

BACKGROUND
The relevant facts are as follows. Plaintiff Robert Razzano was formerly employed by the

New Castle Area School District as a Principal. In February 2014, allegations arose that Mr.
Razzano had acted improperly towards one or more teachers, prompting the New Castle Area

School District Superintendent, Defendant John Sarandrea, to initiate an investigation. Shortly
thereafter, Mr. Razzano met with Mr. Sarandrea to discuss the allegations. In March 2014, Mr.
Razzano filed a Mandamus action in the Court of Common Pleas of Lawrence County seeking
relief from certain aspects of the investigation. In April 2014, the parties entered into a confidential
settlement of the matter. As a consequence of the settlement, Mr. Razzano voluntarily resigned
from employment with the School District.
In April 2016, Mr. Razzano applied for employment at Kennedy Catholic High School. As
part of the application process, Mr. Razzano, as well as his former employer, the School District,
were required to complete and submit a “Commonwealth of Pennsylvania Sexual
Misconduct/Abuse Disclosure Release” form, pursuant to the Act 168 of the Pennsylvania Public
School Code (Act 168 Form”). The Act 168 Form requires a “Yes” or “No” checkmark response
to the following questions relevant to the instant action:
To the best of your knowledge, has Applicant ever[] [b]een the subject of an abuse
or sexual misconduct investigation by an employer, state licensing agency, law
enforcement agency or child protective services agency (unless the investigation
resulted in a finding that the allegations were false)?
To the best of your knowledge, has Applicant ever[] [b]een disciplined, discharged,
non-renewed, asked to resign from employment, resigned from or otherwise
separated from employment while allegations of abuse or sexual misconduct were
pending or under investigation or due to adjudication or findings of abuse or sexual
misconduct?
Mr. Sarandrea completed the Act 168 Form on behalf of the School District, and he answered
“yes” to both of the above questions. As a result of Mr. Sarandrea’s responses on the Act 168
Form, Kennedy Catholic High School declined to employ Mr. Razzano.
The terms “abuse” and “sexual misconduct” used in the Act 168 Form concern only
conduct involving a student or a child. Mr. Razzano has never been the subject of an investigation
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of alleged “abuse” or “sexual misconduct” involving a student or a child. In Mr. Sarandrea’s
Responses to Requests for Admission he denied that he knew that the terms “abuse” and “sexual
misconduct” concern only conduct involving a student or a child, and did not mean abuse or
misconduct directed towards adults. Sarandrea Resp. to Requests for Admission, Apr. 17, 2018,
¶ 2 (ECF No. 57-1).
In their Responses to Requests for Admission, Defendants admit that Mr. Sarandrea’s
“yes” response to the above-cited questions constitute a false official report. ECF No. 57-1, ¶¶ 5
& 8; School Dist. Resp. to Requests for Admission, Apr. 17, 2018, ¶¶ 5 & 8 (ECF No. 60-1).
Defendants state that Mr. Sarandrea did not know that his response to the questions constituted a
false official report at the time of his response. ECF No. 57-1, ¶¶ 5 & 8; ECF No. 60-1, ¶¶ 5 & 8.
In a jointly-filed Amended Answer and Affirmative Defenses, Defendants stated:
Since the portion of the Form containing the “Relevant Definitions” was not
attached [to the Act 168 Form Sarandrea was completing], Sarandrea did not know
that the terms “abuse” and/or or “sexual misconduct” were defined as “being
directed toward or with a child or a student” at the time of his response. Therefore,
Sarandrea did not know that his answers were false at the time of his response.
Am. Answer ¶ 21 (ECF No. 30).
At his deposition, Mr. Sarandrea answered questions regarding his completion of the Act
168 Form. John Sarandrea Dep., Aug. 28, 2018, ECF No. 57-2. He testified that he consulted
with the School District’s Solicitor, Charles Sapienza, in person in Mr. Sarandrea’s office about
the process of filling out the Form. Id. 72. Mr. Sarandrea had reached out to Attorney Sapienza
and asked him to go over the Act 168 Form with him to “make sure we’re doing it the right way.
Sarandrea Dep. 72-73. Mr. Razzano’s counsel asked Mr. Sarandrea, “What did you say and what
did he say in that discussion?” Id. 73. Counsel for Mr. Sarandrea objected on the grounds of

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attorney-client privilege. Id. At the time of Mr. Sarandrea’s deposition both he and the School
District were represented by the same counsel.
Following the objection, Mr. Sarandrea was asked about his understanding at the time he
was completing the Act 168 Form:
Q. As you and he sat there talking about this, did you understand that for Act 168
purposes, including for this form that you were asked to fill out, that the term sexual
misconduct meant an act directed toward or with a child or student?
A. Yes.
Q. Did you understand that for purposes of Act 168 and this form, the term abuse
meant conduct directed toward a child or student?
A. I did.
Q. As you and he sat there having this discussion, did you and he understand that
Robert Razzano had never committed any act of misconduct of any kind nor any
abuse toward a child or student?
...
A. I understand that.
Id. 74-75. Mr. Sarandrea was then handed the Act 168 Form he completed and submitted to
Kennedy Catholic High School to review, and he was asked the following:
Q. In response to the question about whether Mr. Razzano had ever been the subject
of an abuse or sexual misconduct investigation, you wrote yes; is that correct?
A. That’s correct.
Q. Why did you do that?
A. I was advised by the solicitor to check yes.
Id. 76. At this point, counsel for Mr. Razzano asked opposing counsel if he would now be able to
inquire into the specifics of the conversation between Mr. Sarandrea and Attorney Sapienza.
However, defense counsel maintained his objection on the grounds of attorney client privilege. Id.
76-77.
Despite the objection, Mr. Sarandrea did provide additional information that was not
objected to during his deposition. He was asked if he answered “yes” to the second question
“knowing that the definition of abuse and sexual misconduct meant directed toward a child or
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student.” Id. 78. Mr. Sarandrea responded “Yes,” but explicitly qualified his answer explaining:
“We were uncomfortable with the word resignation and we were uncomfortable with the word
investigation.” Id.
He also provided information as to the thought process that went into completing the
form when he responded to a question regarding the effect the “yes” answers would have on Mr.
Razzano. Mr. Sarandrea testified that “the lens from which we were looking at this from[,] was
one of protecting ourselves and the district.” Id. 79. He again attempted an explanation as to
why the questions were answered “Yes,” explaining as follows:
the lens that we looked at this from were based on the word investigation and
based on the word resignation, and, quite frankly, we were concerned that if
anything would happen, that we could be found sort of damned if you do and
damned if you don't no matter which box we checked here.
Id. 80.
At Attorney Sapienza’s deposition, he was directly asked about consultations he may
have had with anyone with respect to the completion of the Act 168 Form:
Q. Okay. Now, do you recall any instance in which an employee or representative
of the New Castle School District has consulted with you regarding Act 168?
A. No.
Charles Sapienza Dep. 7, Oct. 5, 2018, ECF No. 57-3. At the time of the deposition the School
District and Mr. Sarandrea were represented by separate counsel, and neither counsel objected
this question. Mr. Razzano’s counsel then asked Attorney Sapienza specifically about
discussions he may have had with Mr. Sarandrea: “just to specify -- obviously, I think your
answer rules this out -- but you don't recall having any discussions with John Sarandrea
concerning Act 168 or the form?” Id. Before Attorney Sapienza could answer, both defense
counsel objected. Id. Mr. Razzano’s counsel then restated his first question: “So, your prior
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answer was you don’t recall being consulted by any employees or representatives of the New
Castle School District concerning Act 168?” Id. Even though Attorney Sapienza had already
answered this question, both defense counsel objected. Id. 7-8. Finally, Mr. Razzano’s counsel
attempted to pose a hypothetical question, asking: “If you had been consulted by any client about
how to complete an Act 168 form, would you advise that individual to fill out the form in a
manner that is not consistent with their understanding of the facts?” Id. 8. Again defense
counsel objected, and the parties agreed that further questioning would not be productive. The
instant motion to compel followed.
II.

APPLICABLE LAW
“The attorney-client privilege protects communications between attorneys and clients

from compelled disclosure.” In re Teleglobe Commc'ns Corp., 493 F.3d 345, 359 (3d Cir.
2007), as amended (Oct. 12, 2007). The privilege “applies to any communication that satisfies
the following elements: it must be ‘(1) a communication (2) made between privileged persons (3)
in confidence (4) for the purpose of obtaining or providing legal assistance for the client.’” Id.
(quoting Restatement (Third) of the Law Governing Lawyers § 68 (2000)). “‘Privileged
persons’ include the client, the attorney(s), and any of their agents that help facilitate attorneyclient communications or the legal representation.” Id. (citing Restatement (Third) of the Law
Governing Lawyers § 70). “The privilege forbidding the discovery and admission of evidence
relating to communications between attorney and client is intended to ensure that a client
remains free from apprehension that consultations with a legal adviser will be disclosed.”
Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 862 (1994); see also Hunt v.
Blackburn, 128 U.S. 464, 470 (1888). “The privilege encourages the client to reveal to the

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lawyer confidences necessary for the lawyer to provide advice and representation.” RhonePoulenc, 32 F.3d at 862. According to well established law
The traditional elements of the attorney client privilege that identify
communications that may be protected from disclosure in discovery are: (1) the
asserted holder of the privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of the bar of a court, or his or
her subordinate, and (b) in connection with this communication is acting as a
lawyer; (3) the communication relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers (c) for the purpose of securing
primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some
legal proceeding, and (d) not for the purpose of committing a crime or tort; and (4)
the privilege has been (a) claimed and (b) not waived by the client. See In re Grand
Jury Investigation, 599 F.2d 1224, 1233 (3d Cir.1979) citing United States v.
United Shoe Machinery Corp., 89 F.Supp. 357, 358–59 (D.Mass.1950); see also, 8
Wigmore, Evidence, § 2292, at 554 (J. McNaughton rev.1961) (1st ed. 1904).
Rhone-Poulenc, 32 F.3d at 862. Because the attorney-client privilege constricts the truth-finding
process, the privilege is to be construed narrowly. Westinghouse Electric Corp. v. Republic of
the Philippines, 951 F.2d 1414, 1423 (3rd Cir.1991).
“[A]ny privilege that exists as to a corporate officer’s role and functions within a
corporation belongs to the corporation, not the officer.” In re Bevill, Bresler & Schulman Asset
Management Corp., 805 F.2d 120, 124 (3d Cir. 1986). “Because a corporation can act only
through its agents, a corporation’s privilege consists of communications by corporate officials
about corporate matters and their actions in the corporation.” Id. at 124-125. Therefore, a
“corporate official [] may not prevent a corporation from waiving its privilege arising from
discussions with corporate counsel about corporate matters.” Id. at 125. The Bevill Court also
recognized that “an individual officer may have an individual claim of attorney-client privilege
with regard to communications with corporate counsel.” Id., citing In re Citibank v. Andros, 666
F.2d 1192 (8th Cir.1981) and Diversified Industries, Inc. v. Meredith, 5732 F.2d 596 (8th Cir.

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977) (corporate official seeking advice for himself personally from corporate counsel may retain
the privilege).
III.

DISCUSSION
The Court agrees that Plaintiffs should be permitted to depose Mr. Sarandrea and

Attorney Sapienza as to the substance of their communications regarding Mr. Sarandrea’s
completing the Act 168 Form. As explained below, the protected nature of the communications
was waived when Mr. Sarandrea directly testified that he completed the Act 168 Form in the
manner he did on the advice of counsel.
A “party ‘can waive the attorney client privilege by asserting claims or defenses that put
his or her attorney’s advice in issue in the litigation.’” Martin Marietta Materials, Inc. v. Bedford
Reinforced Plastics, Inc., 227 F.R.D. 382, 390 (W.D. Pa. 2005) (quoting Rhone-Poulenc, 32 F.3d
at 863). Where “the client has made the decision and taken the affirmative step in the litigation
to place the advice of the attorney in issue. Courts have found that by placing the advice in issue,
the client has opened to examination facts relating to that advice.” Rhone-Poulenc, 32 F.3d at
863.
In Martin-Marietta, the Court concluded that the deposition testimony of the
representative for Plaintiff “implicated a defense of reliance on counsel advice” and “clearly put
in issue” (i) the attorneys’ understanding regarding Plaintiffs’ duty, (ii) and “the role which
attorney-client communications and advice of counsel played in the [Plaintiffs’] decision [to take
the action it took] such that the Plaintiff has waived the attorney-client privilege with regard to
such communications. . . .” Martin Marietta, 227 F.R.D. 396-97. Similarly, in this case Mr.
Sarandrea implicated a defense of reliance on counsel advice by testifying that he completed the
Act 168 Form on advice of counsel.
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The School District argues that only the School Board had the power to waive the
attorney-client privilege and that Mr. Sarandrea had no authority to waive the privilege. The
School District does not address an implied waiver based on the deponent placing the attorney’s
advice at issue. Moreover, the School District concedes that Mr. Sarandrea’s communications
with the Solicitor were “made in order to obtain legal advice on behalf of the District, and any
alleged advice offered by the District Solicitor would have been made for the best interest of the
District, the client.” Def. Br. Opp. 5. Mr. Sarandrea specifically testified that in discussing his
completion of the Act 168 Form they were concerned about protecting the interests of the School
District. Sarandrea Dep. 79. Mr. Sarandrea in essence testified as the representative of the
School District and specifically testified about conduct that forms the basis of the claims asserted
against both Mr. Sarandrea and the School District.
Moreover, Mr. Sarandrea provided details of the conversation indicating that he and the
Solicitor considered and weighed how to respond appropriately. During his deposition Mr.
Sarandrea explained that “[w]e were uncomfortable with the word resignation and we were
uncomfortable with the word investigation.” Sarandrea Dep. 78. A reasonable assumption from
this testimony it that Mr. Sarandrea and Attorney Sapienza reviewed terms located in the Act 168
Form when discussing how to properly complete the Form.
Mr. Sarandrea’s testimony continued along this line, as he specifically stated that “the
lens from which we were looking at this from[,] was one of protecting ourselves and the district.”
Id. 79. Mr. Sarandrea reiterated the concerns he and Attorney Sapienza had once more,
explaining the underlying decision process as follows:
the lens that we looked at this from were based on the word investigation and
based on the word resignation, and, quite frankly, we were concerned that if
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anything would happen, that we could be found sort of damned if you do and
damned if you don’t no matter which box we checked here.
Id. 80.
Mr. Razzano’s counsel did not explore with Mr. Sarandrea what he meant by the concern over
the terms “investigation” and “resignation.”1 Similarly no inquiry was made to determine what
Attorney Sapienza meant when he testified that however the Act 168 Form was completed, the
result would be problematic for the School District. Finally, there were no questions asked to
shed light as to what possible conduct would be cause for concern when Mr. Sarandrea testified
that there was concern if “anything would happen.”
The Court notes that Plaintiffs’ counsel’s characterization of testimony is overstated. For
example, the evidence at this stage does not support Plaintiffs’ conclusory statement that Mr.
Sarandrea “attempted to fix the blame on the Solicitor.” Pltfs.’ Br. Supp. 8. As can be seen from
the testimony cited above, Mr. Sarandrea attempted to explain why he ultimately checked “Yes”
on the Act 168 Form, in part by conveying that he and Attorney Sapienza carefully considered
how to complete the Form. Mr. Sarandrea’s testimony does not indicate that he was merely
attempting to fix blame on Attorney Sapienza.
Likewise, the evidence available at this stage of the proceedings does not support
Plaintiffs’ counsel’s characterizations of Attorney Sapienza’s testimony as (i) “directly
contradict[ing]” Mr. Sarandrea’s testimony, and (ii) that Attorney Sapienza “indicated that he
never advised anyone from the District relative to Act 168.” Br. Supp. 5. The only relevant

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The parties’ confidential settlement agreement may have foreclosed further questioning, however it is reasonable
to assume that because the settlement agreement provided that Mr. Razzano voluntarily resign from employment,
that fact was at a minimum on Mr. Sarandrea’s mind when he became concerned about the term “resignation” in the
Act 168 Form.

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question to which Attorney Sapienza provided a response concerned his recollection. He was
asked if he recalled consulting with an employee or representative of the School District
regarding Act 168. Sapienza Dep. 7. He testified that he did not recall such a consultation; he
did not testify that the meeting that Mr. Sarandrea referred to did not take place. Mr. Sarandrea
testified that there was a meeting and provided detailed information that the two discussed the
meaning of individual terms, considered what future events might transpire after the form was
submitted, and weighed what effect the final response would have on the School District.
Attorney Sapienza merely testified that he did not recall having a meeting with anyone about the
Act 168 Form, and he was not able to respond to any further questioning due to the objections of
counsel. As is shown by Mr. Sarandrea’s testimony, further inquiry may refresh Attorney
Sapienza’s recollection, or other documents, such as the parties’ calendars or meeting notes, may
serve the same purpose.
Based on the above evidence the Court finds that Mr. Sarandrea implicated a defense of
reliance on counsel, thereby placing at issue the Solicitor’s understanding regarding Mr.
Sarandrea’s completion of the Act 168 Form. Martin Marietta, 227 F.R.D. 396-97. The
attorney-client privilege is waived as to such communications with respect to the role the
Solicitor’s advice played in Mr. Sarandrea’s decision to complete the Act 168 Form as he did.
Plaintiffs’ counsel is permitted to inquire of both Mr. Sarandrea and Attorney Sapienza as to the
substance of any communications between them, concerning Mr. Sarandrea’s completion of the
Act 168 Form.

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IV. CONCLUSION
For the reasons stated above Plaintiffs’ motion to compel testimony will be granted.

Dated: December 27, 2018

s/Marilyn J. Horan
Marilyn J. Horan
United States District Court Judge

ORDER
AND NOW, this 27th day of December, 2018, after careful consideration and for the
reasons set forth in the Opinion accompanying this Order, it is hereby ORDERED that Plaintiffs’
Motion to Compel testimony (ECF No. 56) is GRANTED.
IT IS FURTHER ORDERED that Discovery is extended to February 20, 2019, solely for
deposing Mr. Sarandrea and Attorney Sapienza in accord with the above Opinion, as well as any
necessary directly related discovery.
Pursuant to the Court’s Order entered October 17, 2018, an Order setting Summary
Judgment deadlines will be entered.

s/Marilyn J. Horan
Marilyn J. Horan
United States District Court Judge

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