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HomeMy WebLinkAbout04-08-04IN RE: IN THE COURT OF COMMON PLEAS OF ESTATE OF LOY T. HEMPT CUMBERLAND COUNTY, PENNSYLVANIA ,,----,~ ~,,~ ORPHANS' COURT DIVI~;~(~'N NO. 21-77-231 ACCOUNTANT'S MOTION TO PERMANENTLY SEAL THE REC~D 1. On Februa~ 17 through Februa~ 19, 2004, a hearing was held on the Objections to the First and Final Account for the Estate of Loy T. Hempt, Deceased and Residua~ Trust Under Will of Loy T. Hempt before William A. Duncan, Esquire, the Auditor appointed by the CouA of Common Pleas of Cumberland County, Pennsylvania. 2. Following the hearing, the Auditor issued an Order ordering that the record in the matter was temporarily sealed, and permitting the Accountant to file thereafter a designation of those specific paAs of the record which the Accountant contends should be permanently sealed. 3. The Accountant has filed the aforesaid designation. 4. The Accountant hereby moves that the entire record be permanently sealed because in almost all of the exhibits and throughout the hearing transcript there are references to confidential business information, confidential personal financial information, and/or privileged information. 5. In the alternative, in the event that the entire record is not sealed, the Accountant hereby moves that those hearing exhibits and the portions of the hearing transcript designated by the Accountant in its concurrently filed Confidentiality Designations be permanently sealed. 6. As set forth in the Auditor's Order regarding this subject, the Accountant is simultaneously filing a brief in support of this motion. McNEES WALLACE & NURICK LLC onald B. Kau,,,~,,~ ./ Attorney I.D. No. 49674 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attomeys for Gerald L. Hempt, Trustee of the Residuary Trust under the Will of Loy T. Hempt Dated: ~1'~/ ~/~'''~ -2- CERTIFICATE OF SERVICE I hereby certify that on this date, true and correct copies of the foregoing document was served upon the following by first-class U.S. mail. Daniel L. Sullivan, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Joel Zullinger, Esquire ZULLINGER-DAVIS, P.C. 14 North Main Street, Suite 200 Chambersburg, PA 17201 Do~an ~ Dated: ~[,.~/-1~ (..)~/'~ .. J ,-.,,;: ~~, "f Recnrr-1:-.r" ',' ,- u. H~:~::-~ ,-- ",j,'::; .04 I\PR -8 Pi 0 :l,5 {t '..' INRE: ESTATE OF LOY T. HEMPT 0.1'" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-77-231 BRIEF IN SUPPORT OF ACCOUNTANT'S MOTION TO PERMANENTLY SEAL THE RECORD I. PROCEDURAL HISTORY On February 17 through 19, 2004, a hearing was held with respect to the Objections filed to the First and Final Account for the Estate of Loy T. Hempt, Deceased and Residuary Trust Under Will of Loy T. Hempt. Following the hearing, the Auditor issued an Order stating that the record in the matter was temporarily sealed, and permitting the Accountant to file thereafter a designation of those specific parts of the record which the Accountant contends should be permanently sealed, and a motion and supporting brief. II. ARGUMENT A. The Record In This Matter Should Be Sealed, Or Partially Sealed, Permanently In Order To Protect Confidential Business Information, Confidential Personal Financial Information, And Matters Of Attornev-Client Privileae. To obtain closure of judicial records, a party must demonstrate "good cause." R. v. W. Hampe. M.D., 626 A.2d 1218, 1221 (Pa. Super. 1993). "Good cause exists " where closure is 'necessary in order to prevent a clearly defined and serious injury to the party seeking' it." Id. Every court has supervisory powers over civil proceedings in progress before it and may deny access where such access may become a vehicle for harmful or improper purposes. Thus, the public may be "excluded, temporarily or permanently, from court proceedings or the records of court proceedings to protect private as well as public interests: to protect trade secrets, or the privacy and reputations [of innocent parties], as well as to guard against risks to national security interests, and to minimize the danger of an unfair trial by adverse publicity." ''These are not necessarily the only situations in which public access. . . can properly be denied. A bright-lined test has yet to be formulated. Meanwhile, the decision is to public access must rest in the sound discretion of the trial court." Katz v. Katz, 514 A.2d 1374, 1377-78 (Pa. Super. 1986) (brackets and ellipsis in original; citations omitted). See also, Zdrok v. Zdrok, 829 A.2d 697, 698-99 (Pa. Super. 2003). In the instant case, the Accountant and the Objectors, prior to the hearing, had entered into a private confidentiality agreement in order to protect certain business information from disclosure to third parties. At the hearing in this matter, three types of confidential information were placed on the record. First, confidential information related to the operation of private, closely-held corporations (Hempt Brothers, Inc.; Valley Land, Inc.; and C.A. Hempt, Inc.) was the subject of testimony by various witnesses. The operations, plans, assets, and valuations of these privately-held corporations are private business information which should not be available to competitors or to the general public, and were placed on the record only because of relevance to the instant proceeding. -2- The second type of information designated as confidential, is private, personal financial information. For example, testimony was elicited concerning the value of assets owed by Jean Hempt, and concerning the share ownership of the aforementioned entities held by various individuals. This is personal financial information which is private and was disclosed of necessity in this proceeding, and should be protected from needless public disclosure. The third type of confidential information in the record of the hearing concerns attorney-client communications. Robert Freedman, Esquire, was a witness at the hearing, and his correspondence and discussion with Gerald Hempt (the Accountant and Trustee) was admitted by way of oral testimony and in various exhibits. Mr. Freedman's communications with the Trustee were attorney-client communications subject to the attorney-client privilege. Those communications were disclosed to the Objectors, all of whom are remainder beneficiaries of the Trust in question, and thereby within the ambit of that privilege. Such disclosure does not thereby waive that privilege as to any third party. Thus, in order to protect those attorney-client privileged communications, it is necessary that the exhibits and testimony relating to such communications be protected from disclosure to the public by sealing the record. As set forth in the Motion to Seal the Record, the references to information which should protected from disclosure appear throughout the hearing transcript, and in almost all of the exhibits. As directed by the Auditor, the Accountant has filed a designation as to those particular exhibits and transcript portions which should be designated as confidential. In view of the fact, however, that the record is replete with -3- such information, the movant suggests that the entire hearing record, including the transcript and exhibits, should be permanently sealed. In the alternative, the Accountant requests that those exhibits and portions of the record set forth in the Accountant's Confidentiality Designations be permanently sealed. III. CONCLUSION For the reasons set forth above, the Accountant requests that the Motion to Permanently Seal the Record be granted. McNEES WALLACE & NURICK LLC ByJ~Ka~ Attorney 1.0. No. 49674 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Dated: th I ot . Attorneys for Gerald L. Hempt, Trustee of the Residuary Trust under the Will of Loy T. Hempt -4- CERTIFICATE OF SERVICE I hereby certify that on this date, true and correct copies of the foregoing document was served upon the following by first-class U.S. mail. Daniel L. Sullivan, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Joel Zullinger, Esquire ZULLlNGER-DAVIS, P.C. 14 North Main Street, Suite 200 Chambersburg, PA 17201 ~~~ Dated: tr ~ ) D 4" APR 0 8 2004 ~ (~(-.:. - . ._ i.11 d ~ :u~ (DC") "'I 0 "",.":. -"'Ii ) (.,,~ ':'-~ (:5" "~ ~'2. :::I=' -a ::;;:J I 00 . ;') IN RE: ESTATE OF LOY T. HEMPT .i'" IN THE COURT OF COMMON P~AS OF":" CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-77-231 ACCOUNTANT'S CONFIDENTIALITY DESIGNATIONS WITH RESPECT TO HEARING RECORD The Accountant, by and through his undersigned counsel, McNees Wallace & Nurick LLC, hereby designates as confidential the following portions of the record of the hearing before the Auditor held on February 17 through February 19, 2004. The following Exhibits are designated as confidential: K-1 ; K-6; K-7; K-8; K-9; K-10; K-11; K-12; K-13; K-14; K-15; K-16; K-18; K-19; K-20; H-1 ; H-2. The following portions of the transcript of the hearing are designated as confidential: p. 47, lines 9 - 23 p. 48, line 20 - p. 51, line 1 p. 61, lines 16 -18 p. 64, lines 1 - 4 p. 67, line 24 - p. 68, line 8 p. 72, lines 2 - 6 p. 73, lines 5 -9 p. 74, lines 2 - 19 p. 76, line 24 - p. 78, line 19 p. 78, line 22 - p. 84, line 17 p. 85, line 17 - p. 88, line 23 p. 89, line 14 - p. 91, line 7 p. 92, line 15 - p. 97, line 17 p. 101, line 4 - p. 105, line 17 p. 106, line 13 - p. 108, line 8 p. 124, line 8 - p. 130, line 20 p. 131, line 4 - p. 132, line 1 p. 136, lines 10 - 17 p. 139, line 18 - p. 141, line 12 p. 173, lines 12 - 24 p. 175, lines 17 - 20 p.179, line 14 - p.180, line 9 p. 185, lines 15 - 22 p. 194, lines 1 - 15 p. 195, lines 5 - 22 p. 198, lines 18 - 23 p. 207, lines 16 - 18 p. 207, line 24 - p. 208, line 4 p. 209, line 17 - 22 p. 210, lines 3 - 5 p. 241, lines 14 - 17 p. 249, line 8 - p. 252, line 6 p. 255, lines 2 - 3 p. 262, lines 12 - 14 p. 263, line 23 p. 264, line 9 - p. 265, line 10 p. 266, line 1, lines 11 - 12 p. 267, line 7 - 9 p. 273, lines 22 - 23 p. 275, line 20 - p. 276, line 12 -2- p. 279, line 4 - p. 284, line 3 p. 285, line 18 - p. 288, line 13 p. 319, line 5 p. 322, lines 1 - 4 p. 323, line 17 - p. 324, line 3 p. 326, lines 14 - 15 p. 330, line 8 p. 332, lines 2 - 3 p. 333, lines 21 - 23 p. 342, lines 5 - 12, lines 21 - 25 p. 343, lines 14 - 17 p. 344, line 1 - p. 346, line 13 p. 346, line 24 - p. 347, line 20 p. 351, lines 15 - 16 p. 358, lines 14 - 18, lines 22 - 25 p. 359, lines 1 - 3 p. 370, line 13 - p. 371, line 18 p. 381, lines 5-7 p. 383, line 20 - p. 384, line 22 p. 387, lines 3 - 14 p. 392, lines 6 - 22. The above portions of the record are designated as confidential because they contain confidential business information, confidential personal financial information, and/or privileged information. In view of the fact that the confidential portions of the transcript and exhibits appear throughout the record, the Accountant requests that the - 3 - entire record be permanently sealed. In the alternative, the Accountant requests that the above-designated exhibits and transcript portions be permanently sealed. McNEES WALLACE & NURICK LLC BY~~Ka~ Attorney 1.0. No. 49674 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Gerald L. Hempt, Trustee of the Residuary Trust under the Will of Loy T. Hempt Dated: ~ - y - OLf -4- CERTIFICATE OF SERVICE I hereby certify that on this date, true and correct copies of the foregoing document was served upon the following by first-class U.S. mail. Daniel L. Sullivan, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Joel Zullinger, Esquire ZULLlNGER-DAVIS, P.C. 14 North Main Street, Suite 200 Chambersburg, PA 17201 DJ!~!jfm~ -- Dated: 4-1 ~ I 04'" f . "..11'. ,;.i"~"-~'1 & ~ " APR 08 2004 \5' " . INRE: ESTATE OF LOY T. HEMPT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-77-231 ORDER AND NOW upon consideration of the Accountant's Motion to Permanently Seal The Record, IT IS HEREBY ORDERED that the record in this matter is permanently sealed. BY THE COURT: J. -'...