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HomeMy WebLinkAbout2006-2411 Civil ELIZABETH L. SMITH, : IN THE COURT OF COMMON PLEAS OF (N.K.A. Elizabeth L. Shunk) : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : DANIEL J. SMITH : DEFENDANT : NO. 06-2411 CIVIL IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Ebert, J., November 25, 2008 – Procedural History This case began with the Mother, Elizabeth L. Smith, Appellant herein, filing a Petition for Modification of Custody on March 7, 2008. The basis for the request for modification of custody was that Daniel J. Smith, the Father of L.S., the child in question, and Plaintiff’s former husband, refused to return L.S. to Mother as a result of allegations of sexual abuse. On May 19, 2008, Appellant filed Motion for Rule to Compel Discovery which requested that a Rule be issued upon the District Attorney’s Office to show cause “why the investigation should not be deemed concluded and the video tapes provided to the District Attorney’s Office regarding L. S. and all other reports in their possession pertaining to L. S. whether generated in house by the District Attorney’s Office or provide[d] sic to them from another source be provided to petitioner herein.” On May 28, 2008, the Court issued a Rule upon the District Attorney to show cause why the requested discovery should not be provided. The District Attorney’s Office filed an Answer to the Rule with New Matter on June 17, 2008. Both parties then filed briefs and after argument the Court denied the Motion to Compel Discovery on July 31, 2008. Appellant then filed her notice of Appeal to the Superior Court on August 29, 2008. Factual Summary On April 21, 2007, a report was received by Cumberland County Children and Youth Services from the ChildLine Abuse Reporting Systems that L.S. (date of birth: 4/01/03), the daughter of Appellant, may have been sexually abused. Cumberland County Children and Youth Services immediately began the required civil investigation. The matter was also referred to both the Cumberland County District Attorney and the Upper Allen Township Police Department who began official criminal investigations on or about April 25, 2007. During the course of the criminal investigation, the child was interviewed and video taped at the Children’s Resource Center in Harrisburg. Police reports relative to the investigation and polygraph reports of polygraphs given to the Appellant and her current husband, Gary Shunk were prepared. On October 10, 2007, Cumberland County Children and Youth completed its child protective service investigation and filed Form CY48-6/95 with the Department of Welfare. The report “indicated” that the Appellant was a perpetrator of sexual assault. Being “indicated” the report was required to be maintained pursuant to the Child Protective Services Law. 23 Pa.C.S.A. §6301 et. seq. Appellant then requested the Department of Public Welfare to expunge the report of child abuse against her. The Department of Public Welfare, Office of Children, Youth and Families, completed its review of Appellant’s request to expunge on or about March 19, 2008, and stated that they found the report to be accurate and that it would be maintained in their records as originally reported. Subsequently, on March 25, 2008, the Appellant requested a hearing before the Secretary of the Department of Public Welfare or his designee. From a review of the records currently in the possession of Cumberland County Children and Youth, it appears that that hearing is now scheduled for January 14, 2009. 2 DISCUSSION The issue presented here is whether criminal investigation materials in the hands of the elected District Attorney of Cumberland County are required to be disclosed to a party in a civil custody action. In briefing the issue, neither party has provided this Court with any controlling case law. Initially, we note that in custody cases, “There shall be no discovery unless authorized by special order of court.” Pa.R.C.P. No. 1915.5(c). Both parties note that th the only reported case involving Rule 1915.5(c) is Ford v. Ford, 1 Pa. D.&C. 4 98 (1988) from the Court of Common Pleas of Monroe County. While Appellant points out that that case involved a request for a deposition and not disclosure of investigative materials in the hands of a District Attorney, Judge O’Brien concluded that discovery in custody proceedings is not presently permitted by the Pennsylvania Rules of Civil Procedure. This Court is not prepared to go quite that far. To do so would totally negate the phrase in the rule “unless authorized by special order of court” which obviously contemplates that allowing discovery is a matter within the discretion of the Court. In other types of civil cases involving a demand for discovery, it has often been said that “discovery matters are within the discretion of the trial court and the Appellate Court employs an abuse of discretion standard of review.” Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004). In denying the Appellant’s request for discovery, this Court takes into account that the District Attorney of a county is by law designated “the Chief Law Enforcement Officer for the County in which he is elected.” 71 Pa.C.S.A. §732-206(a). Accordingly, he alone can determine when to initiate a criminal investigation, the scope of the investigation, what evidence to collect during the investigation and when and if any 3 criminal charges will be filed against any person. The Appellant in her Motion for Rule to Compel Discovery requests that this Court issue a Rule to Show Cause upon the District Attorney why his investigation should not be deemed concluded. Such a request is beyond the constitutional powers of this Court. An examination of the information included in the ChildLine report, indicate that criminal charges could be filed at minimum for aggravated indecent assault of a child, a felony of the first degree, 18 Pa.C.S.A. §3125. Given the fact that the child in question is currently only 5 years old, the statute of limitations for this offense will not expire until April 1, 2053. 42 Pa.C.S.A. §5552(c) (3). The Appellant herself states in her brief that the child was of such tender years that “she was barely verbal.” This being the case, it is not unusual for a District Attorney to wait until the child is older and perhaps better able to testify before completing his investigation or filing charges. Thus, the District Attorney’s position that the requested video tapes and investigatory reports are not sought out of need to resolve a custody issue, but rather to formulate a defense to allegations of sexual crimes cannot be dismissed out of hand. The Court notes that at this stage, this matter remains a custody battle between two parents. The District Attorney, an executive branch investigative agency, is not a party to the custody action. If the District Attorney does not release the requested materials to either party, no party will gain any advantage at the custody hearing. Equally important is the fact that nothing in this decision would prohibit the petitioner and her husband from testifying as to what he told the police or the polygraphist. Along the same lines, Appellant’s expert psychologist or psychiatrist could certainly opine that children are often misled, have been tainted, or manipulated during custody proceedings. In examining the Appellant’s pre-hearing memorandum in the custody 4 matter currently scheduled to be heard before this Court on December 1, 2008, she lists no less than 15 witnesses, at least three of which are experts. In short, this court finds that the Appellant is not unduly hampered in the presentation of evidence regarding what is in the best interest of her child. At this stage, it would appear that Father will be unable to prove conclusively that the child was molested. Therefore, each party comes before the Custody Court on equal footing. As a matter of public policy, (1) given the general rule against discovery in custody cases, (2) the important constitutional consideration of separation of powers between this Court and the District Attorney’s Office, and (3) the District Attorney’s fundamentally sound rationale for not disclosing these investigative materials, this Court did not abuse its discretion in denying Appellant’s request to compel. Interestingly, Appellant relies on the case of John M. v. Paula T., 546 A.2d 1162 (Pa. Super. 1988), for the proposition that discovery in custody cases “should be freely given where it is essential to a just disposition of the matter.” Id. at 1166. Unfortunately, for the Appellant, as pointed out by the District Attorney, this decision was overturned by the Supreme Court at John M. v. Paula T., 571 A.2d 1380 (Pa. 1990). While the case is not directly on point, in that it dealt with a request to compel an individual to submit to a blood test to determine paternity, it does involve a family law case. The Court decided the matter by balancing the respective interests of the parties to determine whether the requesting party had a compelling need to justify the discovery request. The Supreme Court weighed the evidentiary value of the blood test and considered other public policy considerations. In John M. v. Paula T., the Court stated that while blood tests are useful in establishing the likelihood of paternity they are not conclusive and that a public policy existed which outweighed the value of the request for the blood test. 5 Here, the requested interview tapes and investigative reports might assist the Appellant, but on the other hand, if these materials were presented to the Court and the Court concluded, as did the Children and Youth investigation and the Department of Public Welfare, that the allegations of abuse were substantiated, it would most certainly have a negative impact on Appellant’s right to custody or visitation. Since these evidentiary materials sought from the District Attorney cannot be used by either party, the governmental interest of the District Attorney in properly conducting a child abuse investigation outweighs the need for the Appellant to obtain these materials. This is especially true in light of the fact that she has other evidence and numerous witnesses available to establish that the best interest of the child will be served by granting some custody or visitation to her, the natural mother. The District Attorney maintains that the Pennsylvania Right-to-Know Act, 65 P.S. § 66.1(2) prohibits the disclosure of these investigative materials. Of course, the Appellant insists that she has not made this application under the Right-to-Know Act but believes that Pa.R.C.P. 1915.5 (c) allowing discovery by special Order of Court in a custody case trumps the prohibition of the Pennsylvania Right-to-Know Act that investigative materials shall not be disclosed. Again, neither party has provided any controlling precedent directly on point. The case of Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), provides some guidance. In Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), plaintiff, a physician, challenged the Office of the Attorney General’s denial of access to certain records. Specifically, the Attorney General refused to disclose information that was part of a criminal investigation of the physician for drug offenses. No charges were ever filed against the doctor. The court ruled in favor of the Attorney General, holding that disclosure was not required because of the investigatory 6 exception to the Right-to-Know Act. The Office of the Attorney General was not required to give the plaintiff access to the investigative records. In Amro, the Appellant, Dr. Amro, much like the Appellant in the case at bar, maintained that he was “an innocent victim of orchestrated entrapment attempts and widespread misinformation.” Id. at 898. Here, Appellant maintains that her former husband falsely instigated the District Attorney’s criminal investigation, and that just like Amro she wants the investigative files to prove her “innocence.” In these circumstances, public policy favors protection of the criminal investigation files. The Right-to-Know Act, 65 P.S. § 66.1(2) defines what are public records, and accordingly what documents are subject to disclosure. This section of the statute expressly excludes, however, “any report, communication or other paper, the publication of which would disclose the institution, progress, or result of an investigation undertaken by an agency in the performance of its official duties.” Documents, reports, video, and other information pertaining to a criminal investigation by the Office of the Attorney General or the Office of the District Attorney would fall within this exception. In Amro, the requested file was prepared by the Office of the Attorney General as part of a “predecisional, internal deliberative process for determining whether to prosecute Amro.” Amro, 783 A.2d 900. The reports requested by Elizabeth Smith, in the instant case, also appear to be part of the “predecisional, internal deliberative process for determining whether to prosecute” her. Id at 900. Elizabeth Smith requests video tapes and “all other reports” from the District Attorney’s office pertaining to the investigation of her daughter’s alleged abuse. This request must be judged in light of the general rule that there shall be no discovery in custody cases unless allowed by a special order of court. Pa.R.C.P. No. 1915.5(c). 7 In a proper exercise of its discretion, this Court concludes that no special order authorizing discovery of these materials is warranted. This decision is based on the fact (1) that the District Attorney has a legitimate reason for not disclosing the investigative materials, (2) that the Appellant has no compelling need for these investigative materials because she has adequate evidence and witnesses available to present at her custody hearing, and (3) that the constitutionally required separation of powers between this Court and the Chief Law Enforcement Officer of the executive branch of government must be observed. Accordingly, the Appellant’s Motion to Compel Discovery was properly denied. By the Court, M. L. Ebert, Jr., J. Mary A. Etter Dissinger, Esquire Attorney for Plaintiff Mark F. Bayley, Esquire Barbara Sumple-Sullivan, Esquire Lindsay Maclay, Esquire Christin Mehrtens-Carlin, Esquire Senior Assistant District Attorney bas 8 ELIZABETH L. SMITH, : IN THE COURT OF COMMON PLEAS OF (N.K.A. Elizabeth L. Shunk) : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : DANIEL J. SMITH : DEFENDANT : NO. 06-2411 CIVIL IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Ebert, J., November 25, 2008 – Procedural History This case began with the Mother, Elizabeth L. Smith, Appellant herein, filing a Petition for Modification of Custody on March 7, 2008. The basis for the request for modification of custody was that Daniel J. Smith, the Father of L.S., the child in question, and Plaintiff’s former husband, refused to return L.S. to Mother as a result of allegations of sexual abuse. On May 19, 2008, Appellant filed Motion for Rule to Compel Discovery which requested that a Rule be issued upon the District Attorney’s Office to show cause “why the investigation should not be deemed concluded and the video tapes provided to the District Attorney’s Office regarding L. S. and all other reports in their possession pertaining to L. S. whether generated in house by the District Attorney’s Office or provide[d] sic to them from another source be provided to petitioner herein.” On May 28, 2008, the Court issued a Rule upon the District Attorney to show cause why the requested discovery should not be provided. The District Attorney’s Office filed an Answer to the Rule with New Matter on June 17, 2008. Both parties then filed briefs and after argument the Court denied the Motion to Compel Discovery on July 31, 2008. Appellant then filed her notice of Appeal to the Superior Court on August 29, 2008. Factual Summary On April 21, 2007, a report was received by Cumberland County Children and Youth Services from the ChildLine Abuse Reporting Systems that L.S. (date of birth: 4/01/03), the daughter of Appellant, may have been sexually abused. Cumberland County Children and Youth Services immediately began the required civil investigation. The matter was also referred to both the Cumberland County District Attorney and the Upper Allen Township Police Department who began official criminal investigations on or about April 25, 2007. During the course of the criminal investigation, the child was interviewed and video taped at the Children’s Resource Center in Harrisburg. Police reports relative to the investigation and polygraph reports of polygraphs given to the Appellant and her current husband, Gary Shunk were prepared. On October 10, 2007, Cumberland County Children and Youth completed its child protective service investigation and filed Form CY48-6/95 with the Department of Welfare. The report “indicated” that the Appellant was a perpetrator of sexual assault. Being “indicated” the report was required to be maintained pursuant to the Child Protective Services Law. 23 Pa.C.S.A. §6301 et. seq. Appellant then requested the Department of Public Welfare to expunge the report of child abuse against her. The Department of Public Welfare, Office of Children, Youth and Families, completed its review of Appellant’s request to expunge on or about March 19, 2008, and stated that they found the report to be accurate and that it would be maintained in their records as originally reported. Subsequently, on March 25, 2008, the Appellant requested a hearing before the Secretary of the Department of Public Welfare or his designee. From a review of the records currently in the possession of Cumberland County Children and Youth, it appears that that hearing is now scheduled for January 14, 2009. 2 DISCUSSION The issue presented here is whether criminal investigation materials in the hands of the elected District Attorney of Cumberland County are required to be disclosed to a party in a civil custody action. In briefing the issue, neither party has provided this Court with any controlling case law. Initially, we note that in custody cases, “There shall be no discovery unless authorized by special order of court.” Pa.R.C.P. No. 1915.5(c). Both parties note that th the only reported case involving Rule 1915.5(c) is Ford v. Ford, 1 Pa. D.&C. 4 98 (1988) from the Court of Common Pleas of Monroe County. While Appellant points out that that case involved a request for a deposition and not disclosure of investigative materials in the hands of a District Attorney, Judge O’Brien concluded that discovery in custody proceedings is not presently permitted by the Pennsylvania Rules of Civil Procedure. This Court is not prepared to go quite that far. To do so would totally negate the phrase in the rule “unless authorized by special order of court” which obviously contemplates that allowing discovery is a matter within the discretion of the Court. In other types of civil cases involving a demand for discovery, it has often been said that “discovery matters are within the discretion of the trial court and the Appellate Court employs an abuse of discretion standard of review.” Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004). In denying the Appellant’s request for discovery, this Court takes into account that the District Attorney of a county is by law designated “the Chief Law Enforcement Officer for the County in which he is elected.” 71 Pa.C.S.A. §732-206(a). Accordingly, he alone can determine when to initiate a criminal investigation, the scope of the investigation, what evidence to collect during the investigation and when and if any 3 criminal charges will be filed against any person. The Appellant in her Motion for Rule to Compel Discovery requests that this Court issue a Rule to Show Cause upon the District Attorney why his investigation should not be deemed concluded. Such a request is beyond the constitutional powers of this Court. An examination of the information included in the ChildLine report, indicate that criminal charges could be filed at minimum for aggravated indecent assault of a child, a felony of the first degree, 18 Pa.C.S.A. §3125. Given the fact that the child in question is currently only 5 years old, the statute of limitations for this offense will not expire until April 1, 2053. 42 Pa.C.S.A. §5552(c) (3). The Appellant herself states in her brief that the child was of such tender years that “she was barely verbal.” This being the case, it is not unusual for a District Attorney to wait until the child is older and perhaps better able to testify before completing his investigation or filing charges. Thus, the District Attorney’s position that the requested video tapes and investigatory reports are not sought out of need to resolve a custody issue, but rather to formulate a defense to allegations of sexual crimes cannot be dismissed out of hand. The Court notes that at this stage, this matter remains a custody battle between two parents. The District Attorney, an executive branch investigative agency, is not a party to the custody action. If the District Attorney does not release the requested materials to either party, no party will gain any advantage at the custody hearing. Equally important is the fact that nothing in this decision would prohibit the petitioner and her husband from testifying as to what he told the police or the polygraphist. Along the same lines, Appellant’s expert psychologist or psychiatrist could certainly opine that children are often misled, have been tainted, or manipulated during custody proceedings. In examining the Appellant’s pre-hearing memorandum in the custody 4 matter currently scheduled to be heard before this Court on December 1, 2008, she lists no less than 15 witnesses, at least three of which are experts. In short, this court finds that the Appellant is not unduly hampered in the presentation of evidence regarding what is in the best interest of her child. At this stage, it would appear that Father will be unable to prove conclusively that the child was molested. Therefore, each party comes before the Custody Court on equal footing. As a matter of public policy, (1) given the general rule against discovery in custody cases, (2) the important constitutional consideration of separation of powers between this Court and the District Attorney’s Office, and (3) the District Attorney’s fundamentally sound rationale for not disclosing these investigative materials, this Court did not abuse its discretion in denying Appellant’s request to compel. Interestingly, Appellant relies on the case of John M. v. Paula T., 546 A.2d 1162 (Pa. Super. 1988), for the proposition that discovery in custody cases “should be freely given where it is essential to a just disposition of the matter.” Id. at 1166. Unfortunately, for the Appellant, as pointed out by the District Attorney, this decision was overturned by the Supreme Court at John M. v. Paula T., 571 A.2d 1380 (Pa. 1990). While the case is not directly on point, in that it dealt with a request to compel an individual to submit to a blood test to determine paternity, it does involve a family law case. The Court decided the matter by balancing the respective interests of the parties to determine whether the requesting party had a compelling need to justify the discovery request. The Supreme Court weighed the evidentiary value of the blood test and considered other public policy considerations. In John M. v. Paula T., the Court stated that while blood tests are useful in establishing the likelihood of paternity they are not conclusive and that a public policy existed which outweighed the value of the request for the blood test. 5 Here, the requested interview tapes and investigative reports might assist the Appellant, but on the other hand, if these materials were presented to the Court and the Court concluded, as did the Children and Youth investigation and the Department of Public Welfare, that the allegations of abuse were substantiated, it would most certainly have a negative impact on Appellant’s right to custody or visitation. Since these evidentiary materials sought from the District Attorney cannot be used by either party, the governmental interest of the District Attorney in properly conducting a child abuse investigation outweighs the need for the Appellant to obtain these materials. This is especially true in light of the fact that she has other evidence and numerous witnesses available to establish that the best interest of the child will be served by granting some custody or visitation to her, the natural mother. The District Attorney maintains that the Pennsylvania Right-to-Know Act, 65 P.S. § 66.1(2) prohibits the disclosure of these investigative materials. Of course, the Appellant insists that she has not made this application under the Right-to-Know Act but believes that Pa.R.C.P. 1915.5 (c) allowing discovery by special Order of Court in a custody case trumps the prohibition of the Pennsylvania Right-to-Know Act that investigative materials shall not be disclosed. Again, neither party has provided any controlling precedent directly on point. The case of Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), provides some guidance. In Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), plaintiff, a physician, challenged the Office of the Attorney General’s denial of access to certain records. Specifically, the Attorney General refused to disclose information that was part of a criminal investigation of the physician for drug offenses. No charges were ever filed against the doctor. The court ruled in favor of the Attorney General, holding that disclosure was not required because of the investigatory 6 exception to the Right-to-Know Act. The Office of the Attorney General was not required to give the plaintiff access to the investigative records. In Amro, the Appellant, Dr. Amro, much like the Appellant in the case at bar, maintained that he was “an innocent victim of orchestrated entrapment attempts and widespread misinformation.” Id. at 898. Here, Appellant maintains that her former husband falsely instigated the District Attorney’s criminal investigation, and that just like Amro she wants the investigative files to prove her “innocence.” In these circumstances, public policy favors protection of the criminal investigation files. The Right-to-Know Act, 65 P.S. § 66.1(2) defines what are public records, and accordingly what documents are subject to disclosure. This section of the statute expressly excludes, however, “any report, communication or other paper, the publication of which would disclose the institution, progress, or result of an investigation undertaken by an agency in the performance of its official duties.” Documents, reports, video, and other information pertaining to a criminal investigation by the Office of the Attorney General or the Office of the District Attorney would fall within this exception. In Amro, the requested file was prepared by the Office of the Attorney General as part of a “predecisional, internal deliberative process for determining whether to prosecute Amro.” Amro, 783 A.2d 900. The reports requested by Elizabeth Smith, in the instant case, also appear to be part of the “predecisional, internal deliberative process for determining whether to prosecute” her. Id at 900. Elizabeth Smith requests video tapes and “all other reports” from the District Attorney’s office pertaining to the investigation of her daughter’s alleged abuse. This request must be judged in light of the general rule that there shall be no discovery in custody cases unless allowed by a special order of court. Pa.R.C.P. No. 1915.5(c). 7 In a proper exercise of its discretion, this Court concludes that no special order authorizing discovery of these materials is warranted. This decision is based on the fact (1) that the District Attorney has a legitimate reason for not disclosing the investigative materials, (2) that the Appellant has no compelling need for these investigative materials because she has adequate evidence and witnesses available to present at her custody hearing, and (3) that the constitutionally required separation of powers between this Court and the Chief Law Enforcement Officer of the executive branch of government must be observed. Accordingly, the Appellant’s Motion to Compel Discovery was properly denied. By the Court, M. L. Ebert, Jr., J. Mary A. Etter Dissinger, Esquire Attorney for Plaintiff Mark F. Bayley, Esquire Barbara Sumple-Sullivan, Esquire Lindsay Maclay, Esquire Christin Mehrtens-Carlin, Esquire Senior Assistant District Attorney bas 8 ELIZABETH L. SMITH, : IN THE COURT OF COMMON PLEAS OF (N.K.A. Elizabeth L. Shunk) : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : DANIEL J. SMITH : DEFENDANT : NO. 06-2411 CIVIL IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Ebert, J., November 25, 2008 – Procedural History This case began with the Mother, Elizabeth L. Smith, Appellant herein, filing a Petition for Modification of Custody on March 7, 2008. The basis for the request for modification of custody was that Daniel J. Smith, the Father of L.S., the child in question, and Plaintiff’s former husband, refused to return L.S. to Mother as a result of allegations of sexual abuse. On May 19, 2008, Appellant filed Motion for Rule to Compel Discovery which requested that a Rule be issued upon the District Attorney’s Office to show cause “why the investigation should not be deemed concluded and the video tapes provided to the District Attorney’s Office regarding L. S. and all other reports in their possession pertaining to L. S. whether generated in house by the District Attorney’s Office or provide[d] sic to them from another source be provided to petitioner herein.” On May 28, 2008, the Court issued a Rule upon the District Attorney to show cause why the requested discovery should not be provided. The District Attorney’s Office filed an Answer to the Rule with New Matter on June 17, 2008. Both parties then filed briefs and after argument the Court denied the Motion to Compel Discovery on July 31, 2008. Appellant then filed her notice of Appeal to the Superior Court on August 29, 2008. Factual Summary On April 21, 2007, a report was received by Cumberland County Children and Youth Services from the ChildLine Abuse Reporting Systems that L.S. (date of birth: 4/01/03), the daughter of Appellant, may have been sexually abused. Cumberland County Children and Youth Services immediately began the required civil investigation. The matter was also referred to both the Cumberland County District Attorney and the Upper Allen Township Police Department who began official criminal investigations on or about April 25, 2007. During the course of the criminal investigation, the child was interviewed and video taped at the Children’s Resource Center in Harrisburg. Police reports relative to the investigation and polygraph reports of polygraphs given to the Appellant and her current husband, Gary Shunk were prepared. On October 10, 2007, Cumberland County Children and Youth completed its child protective service investigation and filed Form CY48-6/95 with the Department of Welfare. The report “indicated” that the Appellant was a perpetrator of sexual assault. Being “indicated” the report was required to be maintained pursuant to the Child Protective Services Law. 23 Pa.C.S.A. §6301 et. seq. Appellant then requested the Department of Public Welfare to expunge the report of child abuse against her. The Department of Public Welfare, Office of Children, Youth and Families, completed its review of Appellant’s request to expunge on or about March 19, 2008, and stated that they found the report to be accurate and that it would be maintained in their records as originally reported. Subsequently, on March 25, 2008, the Appellant requested a hearing before the Secretary of the Department of Public Welfare or his designee. From a review of the records currently in the possession of Cumberland County Children and Youth, it appears that that hearing is now scheduled for January 14, 2009. 2 DISCUSSION The issue presented here is whether criminal investigation materials in the hands of the elected District Attorney of Cumberland County are required to be disclosed to a party in a civil custody action. In briefing the issue, neither party has provided this Court with any controlling case law. Initially, we note that in custody cases, “There shall be no discovery unless authorized by special order of court.” Pa.R.C.P. No. 1915.5(c). Both parties note that th the only reported case involving Rule 1915.5(c) is Ford v. Ford, 1 Pa. D.&C. 4 98 (1988) from the Court of Common Pleas of Monroe County. While Appellant points out that that case involved a request for a deposition and not disclosure of investigative materials in the hands of a District Attorney, Judge O’Brien concluded that discovery in custody proceedings is not presently permitted by the Pennsylvania Rules of Civil Procedure. This Court is not prepared to go quite that far. To do so would totally negate the phrase in the rule “unless authorized by special order of court” which obviously contemplates that allowing discovery is a matter within the discretion of the Court. In other types of civil cases involving a demand for discovery, it has often been said that “discovery matters are within the discretion of the trial court and the Appellate Court employs an abuse of discretion standard of review.” Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004). In denying the Appellant’s request for discovery, this Court takes into account that the District Attorney of a county is by law designated “the Chief Law Enforcement Officer for the County in which he is elected.” 71 Pa.C.S.A. §732-206(a). Accordingly, he alone can determine when to initiate a criminal investigation, the scope of the investigation, what evidence to collect during the investigation and when and if any 3 criminal charges will be filed against any person. The Appellant in her Motion for Rule to Compel Discovery requests that this Court issue a Rule to Show Cause upon the District Attorney why his investigation should not be deemed concluded. Such a request is beyond the constitutional powers of this Court. An examination of the information included in the ChildLine report, indicate that criminal charges could be filed at minimum for aggravated indecent assault of a child, a felony of the first degree, 18 Pa.C.S.A. §3125. Given the fact that the child in question is currently only 5 years old, the statute of limitations for this offense will not expire until April 1, 2053. 42 Pa.C.S.A. §5552(c) (3). The Appellant herself states in her brief that the child was of such tender years that “she was barely verbal.” This being the case, it is not unusual for a District Attorney to wait until the child is older and perhaps better able to testify before completing his investigation or filing charges. Thus, the District Attorney’s position that the requested video tapes and investigatory reports are not sought out of need to resolve a custody issue, but rather to formulate a defense to allegations of sexual crimes cannot be dismissed out of hand. The Court notes that at this stage, this matter remains a custody battle between two parents. The District Attorney, an executive branch investigative agency, is not a party to the custody action. If the District Attorney does not release the requested materials to either party, no party will gain any advantage at the custody hearing. Equally important is the fact that nothing in this decision would prohibit the petitioner and her husband from testifying as to what he told the police or the polygraphist. Along the same lines, Appellant’s expert psychologist or psychiatrist could certainly opine that children are often misled, have been tainted, or manipulated during custody proceedings. In examining the Appellant’s pre-hearing memorandum in the custody 4 matter currently scheduled to be heard before this Court on December 1, 2008, she lists no less than 15 witnesses, at least three of which are experts. In short, this court finds that the Appellant is not unduly hampered in the presentation of evidence regarding what is in the best interest of her child. At this stage, it would appear that Father will be unable to prove conclusively that the child was molested. Therefore, each party comes before the Custody Court on equal footing. As a matter of public policy, (1) given the general rule against discovery in custody cases, (2) the important constitutional consideration of separation of powers between this Court and the District Attorney’s Office, and (3) the District Attorney’s fundamentally sound rationale for not disclosing these investigative materials, this Court did not abuse its discretion in denying Appellant’s request to compel. Interestingly, Appellant relies on the case of John M. v. Paula T., 546 A.2d 1162 (Pa. Super. 1988), for the proposition that discovery in custody cases “should be freely given where it is essential to a just disposition of the matter.” Id. at 1166. Unfortunately, for the Appellant, as pointed out by the District Attorney, this decision was overturned by the Supreme Court at John M. v. Paula T., 571 A.2d 1380 (Pa. 1990). While the case is not directly on point, in that it dealt with a request to compel an individual to submit to a blood test to determine paternity, it does involve a family law case. The Court decided the matter by balancing the respective interests of the parties to determine whether the requesting party had a compelling need to justify the discovery request. The Supreme Court weighed the evidentiary value of the blood test and considered other public policy considerations. In John M. v. Paula T., the Court stated that while blood tests are useful in establishing the likelihood of paternity they are not conclusive and that a public policy existed which outweighed the value of the request for the blood test. 5 Here, the requested interview tapes and investigative reports might assist the Appellant, but on the other hand, if these materials were presented to the Court and the Court concluded, as did the Children and Youth investigation and the Department of Public Welfare, that the allegations of abuse were substantiated, it would most certainly have a negative impact on Appellant’s right to custody or visitation. Since these evidentiary materials sought from the District Attorney cannot be used by either party, the governmental interest of the District Attorney in properly conducting a child abuse investigation outweighs the need for the Appellant to obtain these materials. This is especially true in light of the fact that she has other evidence and numerous witnesses available to establish that the best interest of the child will be served by granting some custody or visitation to her, the natural mother. The District Attorney maintains that the Pennsylvania Right-to-Know Act, 65 P.S. § 66.1(2) prohibits the disclosure of these investigative materials. Of course, the Appellant insists that she has not made this application under the Right-to-Know Act but believes that Pa.R.C.P. 1915.5 (c) allowing discovery by special Order of Court in a custody case trumps the prohibition of the Pennsylvania Right-to-Know Act that investigative materials shall not be disclosed. Again, neither party has provided any controlling precedent directly on point. The case of Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), provides some guidance. In Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), plaintiff, a physician, challenged the Office of the Attorney General’s denial of access to certain records. Specifically, the Attorney General refused to disclose information that was part of a criminal investigation of the physician for drug offenses. No charges were ever filed against the doctor. The court ruled in favor of the Attorney General, holding that disclosure was not required because of the investigatory 6 exception to the Right-to-Know Act. The Office of the Attorney General was not required to give the plaintiff access to the investigative records. In Amro, the Appellant, Dr. Amro, much like the Appellant in the case at bar, maintained that he was “an innocent victim of orchestrated entrapment attempts and widespread misinformation.” Id. at 898. Here, Appellant maintains that her former husband falsely instigated the District Attorney’s criminal investigation, and that just like Amro she wants the investigative files to prove her “innocence.” In these circumstances, public policy favors protection of the criminal investigation files. The Right-to-Know Act, 65 P.S. § 66.1(2) defines what are public records, and accordingly what documents are subject to disclosure. This section of the statute expressly excludes, however, “any report, communication or other paper, the publication of which would disclose the institution, progress, or result of an investigation undertaken by an agency in the performance of its official duties.” Documents, reports, video, and other information pertaining to a criminal investigation by the Office of the Attorney General or the Office of the District Attorney would fall within this exception. In Amro, the requested file was prepared by the Office of the Attorney General as part of a “predecisional, internal deliberative process for determining whether to prosecute Amro.” Amro, 783 A.2d 900. The reports requested by Elizabeth Smith, in the instant case, also appear to be part of the “predecisional, internal deliberative process for determining whether to prosecute” her. Id at 900. Elizabeth Smith requests video tapes and “all other reports” from the District Attorney’s office pertaining to the investigation of her daughter’s alleged abuse. This request must be judged in light of the general rule that there shall be no discovery in custody cases unless allowed by a special order of court. Pa.R.C.P. No. 1915.5(c). 7 In a proper exercise of its discretion, this Court concludes that no special order authorizing discovery of these materials is warranted. This decision is based on the fact (1) that the District Attorney has a legitimate reason for not disclosing the investigative materials, (2) that the Appellant has no compelling need for these investigative materials because she has adequate evidence and witnesses available to present at her custody hearing, and (3) that the constitutionally required separation of powers between this Court and the Chief Law Enforcement Officer of the executive branch of government must be observed. Accordingly, the Appellant’s Motion to Compel Discovery was properly denied. By the Court, M. L. Ebert, Jr., J. Mary A. Etter Dissinger, Esquire Attorney for Plaintiff Mark F. Bayley, Esquire Barbara Sumple-Sullivan, Esquire Lindsay Maclay, Esquire Christin Mehrtens-Carlin, Esquire Senior Assistant District Attorney bas 8 ELIZABETH L. SMITH, : IN THE COURT OF COMMON PLEAS OF (N.K.A. Elizabeth L. Shunk) : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : DANIEL J. SMITH : DEFENDANT : NO. 06-2411 CIVIL IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Ebert, J., November 25, 2008 – Procedural History This case began with the Mother, Elizabeth L. Smith, Appellant herein, filing a Petition for Modification of Custody on March 7, 2008. The basis for the request for modification of custody was that Daniel J. Smith, the Father of L.S., the child in question, and Plaintiff’s former husband, refused to return L.S. to Mother as a result of allegations of sexual abuse. On May 19, 2008, Appellant filed Motion for Rule to Compel Discovery which requested that a Rule be issued upon the District Attorney’s Office to show cause “why the investigation should not be deemed concluded and the video tapes provided to the District Attorney’s Office regarding L. S. and all other reports in their possession pertaining to L. S. whether generated in house by the District Attorney’s Office or provide[d] sic to them from another source be provided to petitioner herein.” On May 28, 2008, the Court issued a Rule upon the District Attorney to show cause why the requested discovery should not be provided. The District Attorney’s Office filed an Answer to the Rule with New Matter on June 17, 2008. Both parties then filed briefs and after argument the Court denied the Motion to Compel Discovery on July 31, 2008. Appellant then filed her notice of Appeal to the Superior Court on August 29, 2008. Factual Summary On April 21, 2007, a report was received by Cumberland County Children and Youth Services from the ChildLine Abuse Reporting Systems that L.S. (date of birth: 4/01/03), the daughter of Appellant, may have been sexually abused. Cumberland County Children and Youth Services immediately began the required civil investigation. The matter was also referred to both the Cumberland County District Attorney and the Upper Allen Township Police Department who began official criminal investigations on or about April 25, 2007. During the course of the criminal investigation, the child was interviewed and video taped at the Children’s Resource Center in Harrisburg. Police reports relative to the investigation and polygraph reports of polygraphs given to the Appellant and her current husband, Gary Shunk were prepared. On October 10, 2007, Cumberland County Children and Youth completed its child protective service investigation and filed Form CY48-6/95 with the Department of Welfare. The report “indicated” that the Appellant was a perpetrator of sexual assault. Being “indicated” the report was required to be maintained pursuant to the Child Protective Services Law. 23 Pa.C.S.A. §6301 et. seq. Appellant then requested the Department of Public Welfare to expunge the report of child abuse against her. The Department of Public Welfare, Office of Children, Youth and Families, completed its review of Appellant’s request to expunge on or about March 19, 2008, and stated that they found the report to be accurate and that it would be maintained in their records as originally reported. Subsequently, on March 25, 2008, the Appellant requested a hearing before the Secretary of the Department of Public Welfare or his designee. From a review of the records currently in the possession of Cumberland County Children and Youth, it appears that that hearing is now scheduled for January 14, 2009. 2 DISCUSSION The issue presented here is whether criminal investigation materials in the hands of the elected District Attorney of Cumberland County are required to be disclosed to a party in a civil custody action. In briefing the issue, neither party has provided this Court with any controlling case law. Initially, we note that in custody cases, “There shall be no discovery unless authorized by special order of court.” Pa.R.C.P. No. 1915.5(c). Both parties note that th the only reported case involving Rule 1915.5(c) is Ford v. Ford, 1 Pa. D.&C. 4 98 (1988) from the Court of Common Pleas of Monroe County. While Appellant points out that that case involved a request for a deposition and not disclosure of investigative materials in the hands of a District Attorney, Judge O’Brien concluded that discovery in custody proceedings is not presently permitted by the Pennsylvania Rules of Civil Procedure. This Court is not prepared to go quite that far. To do so would totally negate the phrase in the rule “unless authorized by special order of court” which obviously contemplates that allowing discovery is a matter within the discretion of the Court. In other types of civil cases involving a demand for discovery, it has often been said that “discovery matters are within the discretion of the trial court and the Appellate Court employs an abuse of discretion standard of review.” Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004). In denying the Appellant’s request for discovery, this Court takes into account that the District Attorney of a county is by law designated “the Chief Law Enforcement Officer for the County in which he is elected.” 71 Pa.C.S.A. §732-206(a). Accordingly, he alone can determine when to initiate a criminal investigation, the scope of the investigation, what evidence to collect during the investigation and when and if any 3 criminal charges will be filed against any person. The Appellant in her Motion for Rule to Compel Discovery requests that this Court issue a Rule to Show Cause upon the District Attorney why his investigation should not be deemed concluded. Such a request is beyond the constitutional powers of this Court. An examination of the information included in the ChildLine report, indicate that criminal charges could be filed at minimum for aggravated indecent assault of a child, a felony of the first degree, 18 Pa.C.S.A. §3125. Given the fact that the child in question is currently only 5 years old, the statute of limitations for this offense will not expire until April 1, 2053. 42 Pa.C.S.A. §5552(c) (3). The Appellant herself states in her brief that the child was of such tender years that “she was barely verbal.” This being the case, it is not unusual for a District Attorney to wait until the child is older and perhaps better able to testify before completing his investigation or filing charges. Thus, the District Attorney’s position that the requested video tapes and investigatory reports are not sought out of need to resolve a custody issue, but rather to formulate a defense to allegations of sexual crimes cannot be dismissed out of hand. The Court notes that at this stage, this matter remains a custody battle between two parents. The District Attorney, an executive branch investigative agency, is not a party to the custody action. If the District Attorney does not release the requested materials to either party, no party will gain any advantage at the custody hearing. Equally important is the fact that nothing in this decision would prohibit the petitioner and her husband from testifying as to what he told the police or the polygraphist. Along the same lines, Appellant’s expert psychologist or psychiatrist could certainly opine that children are often misled, have been tainted, or manipulated during custody proceedings. In examining the Appellant’s pre-hearing memorandum in the custody 4 matter currently scheduled to be heard before this Court on December 1, 2008, she lists no less than 15 witnesses, at least three of which are experts. In short, this court finds that the Appellant is not unduly hampered in the presentation of evidence regarding what is in the best interest of her child. At this stage, it would appear that Father will be unable to prove conclusively that the child was molested. Therefore, each party comes before the Custody Court on equal footing. As a matter of public policy, (1) given the general rule against discovery in custody cases, (2) the important constitutional consideration of separation of powers between this Court and the District Attorney’s Office, and (3) the District Attorney’s fundamentally sound rationale for not disclosing these investigative materials, this Court did not abuse its discretion in denying Appellant’s request to compel. Interestingly, Appellant relies on the case of John M. v. Paula T., 546 A.2d 1162 (Pa. Super. 1988), for the proposition that discovery in custody cases “should be freely given where it is essential to a just disposition of the matter.” Id. at 1166. Unfortunately, for the Appellant, as pointed out by the District Attorney, this decision was overturned by the Supreme Court at John M. v. Paula T., 571 A.2d 1380 (Pa. 1990). While the case is not directly on point, in that it dealt with a request to compel an individual to submit to a blood test to determine paternity, it does involve a family law case. The Court decided the matter by balancing the respective interests of the parties to determine whether the requesting party had a compelling need to justify the discovery request. The Supreme Court weighed the evidentiary value of the blood test and considered other public policy considerations. In John M. v. Paula T., the Court stated that while blood tests are useful in establishing the likelihood of paternity they are not conclusive and that a public policy existed which outweighed the value of the request for the blood test. 5 Here, the requested interview tapes and investigative reports might assist the Appellant, but on the other hand, if these materials were presented to the Court and the Court concluded, as did the Children and Youth investigation and the Department of Public Welfare, that the allegations of abuse were substantiated, it would most certainly have a negative impact on Appellant’s right to custody or visitation. Since these evidentiary materials sought from the District Attorney cannot be used by either party, the governmental interest of the District Attorney in properly conducting a child abuse investigation outweighs the need for the Appellant to obtain these materials. This is especially true in light of the fact that she has other evidence and numerous witnesses available to establish that the best interest of the child will be served by granting some custody or visitation to her, the natural mother. The District Attorney maintains that the Pennsylvania Right-to-Know Act, 65 P.S. § 66.1(2) prohibits the disclosure of these investigative materials. Of course, the Appellant insists that she has not made this application under the Right-to-Know Act but believes that Pa.R.C.P. 1915.5 (c) allowing discovery by special Order of Court in a custody case trumps the prohibition of the Pennsylvania Right-to-Know Act that investigative materials shall not be disclosed. Again, neither party has provided any controlling precedent directly on point. The case of Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), provides some guidance. In Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), plaintiff, a physician, challenged the Office of the Attorney General’s denial of access to certain records. Specifically, the Attorney General refused to disclose information that was part of a criminal investigation of the physician for drug offenses. No charges were ever filed against the doctor. The court ruled in favor of the Attorney General, holding that disclosure was not required because of the investigatory 6 exception to the Right-to-Know Act. The Office of the Attorney General was not required to give the plaintiff access to the investigative records. In Amro, the Appellant, Dr. Amro, much like the Appellant in the case at bar, maintained that he was “an innocent victim of orchestrated entrapment attempts and widespread misinformation.” Id. at 898. Here, Appellant maintains that her former husband falsely instigated the District Attorney’s criminal investigation, and that just like Amro she wants the investigative files to prove her “innocence.” In these circumstances, public policy favors protection of the criminal investigation files. The Right-to-Know Act, 65 P.S. § 66.1(2) defines what are public records, and accordingly what documents are subject to disclosure. This section of the statute expressly excludes, however, “any report, communication or other paper, the publication of which would disclose the institution, progress, or result of an investigation undertaken by an agency in the performance of its official duties.” Documents, reports, video, and other information pertaining to a criminal investigation by the Office of the Attorney General or the Office of the District Attorney would fall within this exception. In Amro, the requested file was prepared by the Office of the Attorney General as part of a “predecisional, internal deliberative process for determining whether to prosecute Amro.” Amro, 783 A.2d 900. The reports requested by Elizabeth Smith, in the instant case, also appear to be part of the “predecisional, internal deliberative process for determining whether to prosecute” her. Id at 900. Elizabeth Smith requests video tapes and “all other reports” from the District Attorney’s office pertaining to the investigation of her daughter’s alleged abuse. This request must be judged in light of the general rule that there shall be no discovery in custody cases unless allowed by a special order of court. Pa.R.C.P. No. 1915.5(c). 7 In a proper exercise of its discretion, this Court concludes that no special order authorizing discovery of these materials is warranted. This decision is based on the fact (1) that the District Attorney has a legitimate reason for not disclosing the investigative materials, (2) that the Appellant has no compelling need for these investigative materials because she has adequate evidence and witnesses available to present at her custody hearing, and (3) that the constitutionally required separation of powers between this Court and the Chief Law Enforcement Officer of the executive branch of government must be observed. Accordingly, the Appellant’s Motion to Compel Discovery was properly denied. By the Court, M. L. Ebert, Jr., J. Mary A. Etter Dissinger, Esquire Attorney for Plaintiff Mark F. Bayley, Esquire Barbara Sumple-Sullivan, Esquire Lindsay Maclay, Esquire Christin Mehrtens-Carlin, Esquire Senior Assistant District Attorney bas 8 ELIZABETH L. SMITH, : IN THE COURT OF COMMON PLEAS OF (N.K.A. Elizabeth L. Shunk) : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : DANIEL J. SMITH : DEFENDANT : NO. 06-2411 CIVIL IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Ebert, J., November 25, 2008 – Procedural History This case began with the Mother, Elizabeth L. Smith, Appellant herein, filing a Petition for Modification of Custody on March 7, 2008. The basis for the request for modification of custody was that Daniel J. Smith, the Father of L.S., the child in question, and Plaintiff’s former husband, refused to return L.S. to Mother as a result of allegations of sexual abuse. On May 19, 2008, Appellant filed Motion for Rule to Compel Discovery which requested that a Rule be issued upon the District Attorney’s Office to show cause “why the investigation should not be deemed concluded and the video tapes provided to the District Attorney’s Office regarding L. S. and all other reports in their possession pertaining to L. S. whether generated in house by the District Attorney’s Office or provide[d] sic to them from another source be provided to petitioner herein.” On May 28, 2008, the Court issued a Rule upon the District Attorney to show cause why the requested discovery should not be provided. The District Attorney’s Office filed an Answer to the Rule with New Matter on June 17, 2008. Both parties then filed briefs and after argument the Court denied the Motion to Compel Discovery on July 31, 2008. Appellant then filed her notice of Appeal to the Superior Court on August 29, 2008. Factual Summary On April 21, 2007, a report was received by Cumberland County Children and Youth Services from the ChildLine Abuse Reporting Systems that L.S. (date of birth: 4/01/03), the daughter of Appellant, may have been sexually abused. Cumberland County Children and Youth Services immediately began the required civil investigation. The matter was also referred to both the Cumberland County District Attorney and the Upper Allen Township Police Department who began official criminal investigations on or about April 25, 2007. During the course of the criminal investigation, the child was interviewed and video taped at the Children’s Resource Center in Harrisburg. Police reports relative to the investigation and polygraph reports of polygraphs given to the Appellant and her current husband, Gary Shunk were prepared. On October 10, 2007, Cumberland County Children and Youth completed its child protective service investigation and filed Form CY48-6/95 with the Department of Welfare. The report “indicated” that the Appellant was a perpetrator of sexual assault. Being “indicated” the report was required to be maintained pursuant to the Child Protective Services Law. 23 Pa.C.S.A. §6301 et. seq. Appellant then requested the Department of Public Welfare to expunge the report of child abuse against her. The Department of Public Welfare, Office of Children, Youth and Families, completed its review of Appellant’s request to expunge on or about March 19, 2008, and stated that they found the report to be accurate and that it would be maintained in their records as originally reported. Subsequently, on March 25, 2008, the Appellant requested a hearing before the Secretary of the Department of Public Welfare or his designee. From a review of the records currently in the possession of Cumberland County Children and Youth, it appears that that hearing is now scheduled for January 14, 2009. 2 DISCUSSION The issue presented here is whether criminal investigation materials in the hands of the elected District Attorney of Cumberland County are required to be disclosed to a party in a civil custody action. In briefing the issue, neither party has provided this Court with any controlling case law. Initially, we note that in custody cases, “There shall be no discovery unless authorized by special order of court.” Pa.R.C.P. No. 1915.5(c). Both parties note that th the only reported case involving Rule 1915.5(c) is Ford v. Ford, 1 Pa. D.&C. 4 98 (1988) from the Court of Common Pleas of Monroe County. While Appellant points out that that case involved a request for a deposition and not disclosure of investigative materials in the hands of a District Attorney, Judge O’Brien concluded that discovery in custody proceedings is not presently permitted by the Pennsylvania Rules of Civil Procedure. This Court is not prepared to go quite that far. To do so would totally negate the phrase in the rule “unless authorized by special order of court” which obviously contemplates that allowing discovery is a matter within the discretion of the Court. In other types of civil cases involving a demand for discovery, it has often been said that “discovery matters are within the discretion of the trial court and the Appellate Court employs an abuse of discretion standard of review.” Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004). In denying the Appellant’s request for discovery, this Court takes into account that the District Attorney of a county is by law designated “the Chief Law Enforcement Officer for the County in which he is elected.” 71 Pa.C.S.A. §732-206(a). Accordingly, he alone can determine when to initiate a criminal investigation, the scope of the investigation, what evidence to collect during the investigation and when and if any 3 criminal charges will be filed against any person. The Appellant in her Motion for Rule to Compel Discovery requests that this Court issue a Rule to Show Cause upon the District Attorney why his investigation should not be deemed concluded. Such a request is beyond the constitutional powers of this Court. An examination of the information included in the ChildLine report, indicate that criminal charges could be filed at minimum for aggravated indecent assault of a child, a felony of the first degree, 18 Pa.C.S.A. §3125. Given the fact that the child in question is currently only 5 years old, the statute of limitations for this offense will not expire until April 1, 2053. 42 Pa.C.S.A. §5552(c) (3). The Appellant herself states in her brief that the child was of such tender years that “she was barely verbal.” This being the case, it is not unusual for a District Attorney to wait until the child is older and perhaps better able to testify before completing his investigation or filing charges. Thus, the District Attorney’s position that the requested video tapes and investigatory reports are not sought out of need to resolve a custody issue, but rather to formulate a defense to allegations of sexual crimes cannot be dismissed out of hand. The Court notes that at this stage, this matter remains a custody battle between two parents. The District Attorney, an executive branch investigative agency, is not a party to the custody action. If the District Attorney does not release the requested materials to either party, no party will gain any advantage at the custody hearing. Equally important is the fact that nothing in this decision would prohibit the petitioner and her husband from testifying as to what he told the police or the polygraphist. Along the same lines, Appellant’s expert psychologist or psychiatrist could certainly opine that children are often misled, have been tainted, or manipulated during custody proceedings. In examining the Appellant’s pre-hearing memorandum in the custody 4 matter currently scheduled to be heard before this Court on December 1, 2008, she lists no less than 15 witnesses, at least three of which are experts. In short, this court finds that the Appellant is not unduly hampered in the presentation of evidence regarding what is in the best interest of her child. At this stage, it would appear that Father will be unable to prove conclusively that the child was molested. Therefore, each party comes before the Custody Court on equal footing. As a matter of public policy, (1) given the general rule against discovery in custody cases, (2) the important constitutional consideration of separation of powers between this Court and the District Attorney’s Office, and (3) the District Attorney’s fundamentally sound rationale for not disclosing these investigative materials, this Court did not abuse its discretion in denying Appellant’s request to compel. Interestingly, Appellant relies on the case of John M. v. Paula T., 546 A.2d 1162 (Pa. Super. 1988), for the proposition that discovery in custody cases “should be freely given where it is essential to a just disposition of the matter.” Id. at 1166. Unfortunately, for the Appellant, as pointed out by the District Attorney, this decision was overturned by the Supreme Court at John M. v. Paula T., 571 A.2d 1380 (Pa. 1990). While the case is not directly on point, in that it dealt with a request to compel an individual to submit to a blood test to determine paternity, it does involve a family law case. The Court decided the matter by balancing the respective interests of the parties to determine whether the requesting party had a compelling need to justify the discovery request. The Supreme Court weighed the evidentiary value of the blood test and considered other public policy considerations. In John M. v. Paula T., the Court stated that while blood tests are useful in establishing the likelihood of paternity they are not conclusive and that a public policy existed which outweighed the value of the request for the blood test. 5 Here, the requested interview tapes and investigative reports might assist the Appellant, but on the other hand, if these materials were presented to the Court and the Court concluded, as did the Children and Youth investigation and the Department of Public Welfare, that the allegations of abuse were substantiated, it would most certainly have a negative impact on Appellant’s right to custody or visitation. Since these evidentiary materials sought from the District Attorney cannot be used by either party, the governmental interest of the District Attorney in properly conducting a child abuse investigation outweighs the need for the Appellant to obtain these materials. This is especially true in light of the fact that she has other evidence and numerous witnesses available to establish that the best interest of the child will be served by granting some custody or visitation to her, the natural mother. The District Attorney maintains that the Pennsylvania Right-to-Know Act, 65 P.S. § 66.1(2) prohibits the disclosure of these investigative materials. Of course, the Appellant insists that she has not made this application under the Right-to-Know Act but believes that Pa.R.C.P. 1915.5 (c) allowing discovery by special Order of Court in a custody case trumps the prohibition of the Pennsylvania Right-to-Know Act that investigative materials shall not be disclosed. Again, neither party has provided any controlling precedent directly on point. The case of Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), provides some guidance. In Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), plaintiff, a physician, challenged the Office of the Attorney General’s denial of access to certain records. Specifically, the Attorney General refused to disclose information that was part of a criminal investigation of the physician for drug offenses. No charges were ever filed against the doctor. The court ruled in favor of the Attorney General, holding that disclosure was not required because of the investigatory 6 exception to the Right-to-Know Act. The Office of the Attorney General was not required to give the plaintiff access to the investigative records. In Amro, the Appellant, Dr. Amro, much like the Appellant in the case at bar, maintained that he was “an innocent victim of orchestrated entrapment attempts and widespread misinformation.” Id. at 898. Here, Appellant maintains that her former husband falsely instigated the District Attorney’s criminal investigation, and that just like Amro she wants the investigative files to prove her “innocence.” In these circumstances, public policy favors protection of the criminal investigation files. The Right-to-Know Act, 65 P.S. § 66.1(2) defines what are public records, and accordingly what documents are subject to disclosure. This section of the statute expressly excludes, however, “any report, communication or other paper, the publication of which would disclose the institution, progress, or result of an investigation undertaken by an agency in the performance of its official duties.” Documents, reports, video, and other information pertaining to a criminal investigation by the Office of the Attorney General or the Office of the District Attorney would fall within this exception. In Amro, the requested file was prepared by the Office of the Attorney General as part of a “predecisional, internal deliberative process for determining whether to prosecute Amro.” Amro, 783 A.2d 900. The reports requested by Elizabeth Smith, in the instant case, also appear to be part of the “predecisional, internal deliberative process for determining whether to prosecute” her. Id at 900. Elizabeth Smith requests video tapes and “all other reports” from the District Attorney’s office pertaining to the investigation of her daughter’s alleged abuse. This request must be judged in light of the general rule that there shall be no discovery in custody cases unless allowed by a special order of court. Pa.R.C.P. No. 1915.5(c). 7 In a proper exercise of its discretion, this Court concludes that no special order authorizing discovery of these materials is warranted. This decision is based on the fact (1) that the District Attorney has a legitimate reason for not disclosing the investigative materials, (2) that the Appellant has no compelling need for these investigative materials because she has adequate evidence and witnesses available to present at her custody hearing, and (3) that the constitutionally required separation of powers between this Court and the Chief Law Enforcement Officer of the executive branch of government must be observed. Accordingly, the Appellant’s Motion to Compel Discovery was properly denied. By the Court, M. L. Ebert, Jr., J. Mary A. Etter Dissinger, Esquire Attorney for Plaintiff Mark F. Bayley, Esquire Barbara Sumple-Sullivan, Esquire Lindsay Maclay, Esquire Christin Mehrtens-Carlin, Esquire Senior Assistant District Attorney bas 8 ELIZABETH L. SMITH, : IN THE COURT OF COMMON PLEAS OF (N.K.A. Elizabeth L. Shunk) : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : DANIEL J. SMITH : DEFENDANT : NO. 06-2411 CIVIL IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Ebert, J., November 25, 2008 – Procedural History This case began with the Mother, Elizabeth L. Smith, Appellant herein, filing a Petition for Modification of Custody on March 7, 2008. The basis for the request for modification of custody was that Daniel J. Smith, the Father of L.S., the child in question, and Plaintiff’s former husband, refused to return L.S. to Mother as a result of allegations of sexual abuse. On May 19, 2008, Appellant filed Motion for Rule to Compel Discovery which requested that a Rule be issued upon the District Attorney’s Office to show cause “why the investigation should not be deemed concluded and the video tapes provided to the District Attorney’s Office regarding L. S. and all other reports in their possession pertaining to L. S. whether generated in house by the District Attorney’s Office or provide[d] sic to them from another source be provided to petitioner herein.” On May 28, 2008, the Court issued a Rule upon the District Attorney to show cause why the requested discovery should not be provided. The District Attorney’s Office filed an Answer to the Rule with New Matter on June 17, 2008. Both parties then filed briefs and after argument the Court denied the Motion to Compel Discovery on July 31, 2008. Appellant then filed her notice of Appeal to the Superior Court on August 29, 2008. Factual Summary On April 21, 2007, a report was received by Cumberland County Children and Youth Services from the ChildLine Abuse Reporting Systems that L.S. (date of birth: 4/01/03), the daughter of Appellant, may have been sexually abused. Cumberland County Children and Youth Services immediately began the required civil investigation. The matter was also referred to both the Cumberland County District Attorney and the Upper Allen Township Police Department who began official criminal investigations on or about April 25, 2007. During the course of the criminal investigation, the child was interviewed and video taped at the Children’s Resource Center in Harrisburg. Police reports relative to the investigation and polygraph reports of polygraphs given to the Appellant and her current husband, Gary Shunk were prepared. On October 10, 2007, Cumberland County Children and Youth completed its child protective service investigation and filed Form CY48-6/95 with the Department of Welfare. The report “indicated” that the Appellant was a perpetrator of sexual assault. Being “indicated” the report was required to be maintained pursuant to the Child Protective Services Law. 23 Pa.C.S.A. §6301 et. seq. Appellant then requested the Department of Public Welfare to expunge the report of child abuse against her. The Department of Public Welfare, Office of Children, Youth and Families, completed its review of Appellant’s request to expunge on or about March 19, 2008, and stated that they found the report to be accurate and that it would be maintained in their records as originally reported. Subsequently, on March 25, 2008, the Appellant requested a hearing before the Secretary of the Department of Public Welfare or his designee. From a review of the records currently in the possession of Cumberland County Children and Youth, it appears that that hearing is now scheduled for January 14, 2009. 2 DISCUSSION The issue presented here is whether criminal investigation materials in the hands of the elected District Attorney of Cumberland County are required to be disclosed to a party in a civil custody action. In briefing the issue, neither party has provided this Court with any controlling case law. Initially, we note that in custody cases, “There shall be no discovery unless authorized by special order of court.” Pa.R.C.P. No. 1915.5(c). Both parties note that th the only reported case involving Rule 1915.5(c) is Ford v. Ford, 1 Pa. D.&C. 4 98 (1988) from the Court of Common Pleas of Monroe County. While Appellant points out that that case involved a request for a deposition and not disclosure of investigative materials in the hands of a District Attorney, Judge O’Brien concluded that discovery in custody proceedings is not presently permitted by the Pennsylvania Rules of Civil Procedure. This Court is not prepared to go quite that far. To do so would totally negate the phrase in the rule “unless authorized by special order of court” which obviously contemplates that allowing discovery is a matter within the discretion of the Court. In other types of civil cases involving a demand for discovery, it has often been said that “discovery matters are within the discretion of the trial court and the Appellate Court employs an abuse of discretion standard of review.” Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004). In denying the Appellant’s request for discovery, this Court takes into account that the District Attorney of a county is by law designated “the Chief Law Enforcement Officer for the County in which he is elected.” 71 Pa.C.S.A. §732-206(a). Accordingly, he alone can determine when to initiate a criminal investigation, the scope of the investigation, what evidence to collect during the investigation and when and if any 3 criminal charges will be filed against any person. The Appellant in her Motion for Rule to Compel Discovery requests that this Court issue a Rule to Show Cause upon the District Attorney why his investigation should not be deemed concluded. Such a request is beyond the constitutional powers of this Court. An examination of the information included in the ChildLine report, indicate that criminal charges could be filed at minimum for aggravated indecent assault of a child, a felony of the first degree, 18 Pa.C.S.A. §3125. Given the fact that the child in question is currently only 5 years old, the statute of limitations for this offense will not expire until April 1, 2053. 42 Pa.C.S.A. §5552(c) (3). The Appellant herself states in her brief that the child was of such tender years that “she was barely verbal.” This being the case, it is not unusual for a District Attorney to wait until the child is older and perhaps better able to testify before completing his investigation or filing charges. Thus, the District Attorney’s position that the requested video tapes and investigatory reports are not sought out of need to resolve a custody issue, but rather to formulate a defense to allegations of sexual crimes cannot be dismissed out of hand. The Court notes that at this stage, this matter remains a custody battle between two parents. The District Attorney, an executive branch investigative agency, is not a party to the custody action. If the District Attorney does not release the requested materials to either party, no party will gain any advantage at the custody hearing. Equally important is the fact that nothing in this decision would prohibit the petitioner and her husband from testifying as to what he told the police or the polygraphist. Along the same lines, Appellant’s expert psychologist or psychiatrist could certainly opine that children are often misled, have been tainted, or manipulated during custody proceedings. In examining the Appellant’s pre-hearing memorandum in the custody 4 matter currently scheduled to be heard before this Court on December 1, 2008, she lists no less than 15 witnesses, at least three of which are experts. In short, this court finds that the Appellant is not unduly hampered in the presentation of evidence regarding what is in the best interest of her child. At this stage, it would appear that Father will be unable to prove conclusively that the child was molested. Therefore, each party comes before the Custody Court on equal footing. As a matter of public policy, (1) given the general rule against discovery in custody cases, (2) the important constitutional consideration of separation of powers between this Court and the District Attorney’s Office, and (3) the District Attorney’s fundamentally sound rationale for not disclosing these investigative materials, this Court did not abuse its discretion in denying Appellant’s request to compel. Interestingly, Appellant relies on the case of John M. v. Paula T., 546 A.2d 1162 (Pa. Super. 1988), for the proposition that discovery in custody cases “should be freely given where it is essential to a just disposition of the matter.” Id. at 1166. Unfortunately, for the Appellant, as pointed out by the District Attorney, this decision was overturned by the Supreme Court at John M. v. Paula T., 571 A.2d 1380 (Pa. 1990). While the case is not directly on point, in that it dealt with a request to compel an individual to submit to a blood test to determine paternity, it does involve a family law case. The Court decided the matter by balancing the respective interests of the parties to determine whether the requesting party had a compelling need to justify the discovery request. The Supreme Court weighed the evidentiary value of the blood test and considered other public policy considerations. In John M. v. Paula T., the Court stated that while blood tests are useful in establishing the likelihood of paternity they are not conclusive and that a public policy existed which outweighed the value of the request for the blood test. 5 Here, the requested interview tapes and investigative reports might assist the Appellant, but on the other hand, if these materials were presented to the Court and the Court concluded, as did the Children and Youth investigation and the Department of Public Welfare, that the allegations of abuse were substantiated, it would most certainly have a negative impact on Appellant’s right to custody or visitation. Since these evidentiary materials sought from the District Attorney cannot be used by either party, the governmental interest of the District Attorney in properly conducting a child abuse investigation outweighs the need for the Appellant to obtain these materials. This is especially true in light of the fact that she has other evidence and numerous witnesses available to establish that the best interest of the child will be served by granting some custody or visitation to her, the natural mother. The District Attorney maintains that the Pennsylvania Right-to-Know Act, 65 P.S. § 66.1(2) prohibits the disclosure of these investigative materials. Of course, the Appellant insists that she has not made this application under the Right-to-Know Act but believes that Pa.R.C.P. 1915.5 (c) allowing discovery by special Order of Court in a custody case trumps the prohibition of the Pennsylvania Right-to-Know Act that investigative materials shall not be disclosed. Again, neither party has provided any controlling precedent directly on point. The case of Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), provides some guidance. In Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), plaintiff, a physician, challenged the Office of the Attorney General’s denial of access to certain records. Specifically, the Attorney General refused to disclose information that was part of a criminal investigation of the physician for drug offenses. No charges were ever filed against the doctor. The court ruled in favor of the Attorney General, holding that disclosure was not required because of the investigatory 6 exception to the Right-to-Know Act. The Office of the Attorney General was not required to give the plaintiff access to the investigative records. In Amro, the Appellant, Dr. Amro, much like the Appellant in the case at bar, maintained that he was “an innocent victim of orchestrated entrapment attempts and widespread misinformation.” Id. at 898. Here, Appellant maintains that her former husband falsely instigated the District Attorney’s criminal investigation, and that just like Amro she wants the investigative files to prove her “innocence.” In these circumstances, public policy favors protection of the criminal investigation files. The Right-to-Know Act, 65 P.S. § 66.1(2) defines what are public records, and accordingly what documents are subject to disclosure. This section of the statute expressly excludes, however, “any report, communication or other paper, the publication of which would disclose the institution, progress, or result of an investigation undertaken by an agency in the performance of its official duties.” Documents, reports, video, and other information pertaining to a criminal investigation by the Office of the Attorney General or the Office of the District Attorney would fall within this exception. In Amro, the requested file was prepared by the Office of the Attorney General as part of a “predecisional, internal deliberative process for determining whether to prosecute Amro.” Amro, 783 A.2d 900. The reports requested by Elizabeth Smith, in the instant case, also appear to be part of the “predecisional, internal deliberative process for determining whether to prosecute” her. Id at 900. Elizabeth Smith requests video tapes and “all other reports” from the District Attorney’s office pertaining to the investigation of her daughter’s alleged abuse. This request must be judged in light of the general rule that there shall be no discovery in custody cases unless allowed by a special order of court. Pa.R.C.P. No. 1915.5(c). 7 In a proper exercise of its discretion, this Court concludes that no special order authorizing discovery of these materials is warranted. This decision is based on the fact (1) that the District Attorney has a legitimate reason for not disclosing the investigative materials, (2) that the Appellant has no compelling need for these investigative materials because she has adequate evidence and witnesses available to present at her custody hearing, and (3) that the constitutionally required separation of powers between this Court and the Chief Law Enforcement Officer of the executive branch of government must be observed. Accordingly, the Appellant’s Motion to Compel Discovery was properly denied. By the Court, M. L. Ebert, Jr., J. Mary A. Etter Dissinger, Esquire Attorney for Plaintiff Mark F. Bayley, Esquire Barbara Sumple-Sullivan, Esquire Lindsay Maclay, Esquire Christin Mehrtens-Carlin, Esquire Senior Assistant District Attorney bas 8 ELIZABETH L. SMITH, : IN THE COURT OF COMMON PLEAS OF (N.K.A. Elizabeth L. Shunk) : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : DANIEL J. SMITH : DEFENDANT : NO. 06-2411 CIVIL IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Ebert, J., November 25, 2008 – Procedural History This case began with the Mother, Elizabeth L. Smith, Appellant herein, filing a Petition for Modification of Custody on March 7, 2008. The basis for the request for modification of custody was that Daniel J. Smith, the Father of L.S., the child in question, and Plaintiff’s former husband, refused to return L.S. to Mother as a result of allegations of sexual abuse. On May 19, 2008, Appellant filed Motion for Rule to Compel Discovery which requested that a Rule be issued upon the District Attorney’s Office to show cause “why the investigation should not be deemed concluded and the video tapes provided to the District Attorney’s Office regarding L. S. and all other reports in their possession pertaining to L. S. whether generated in house by the District Attorney’s Office or provide[d] sic to them from another source be provided to petitioner herein.” On May 28, 2008, the Court issued a Rule upon the District Attorney to show cause why the requested discovery should not be provided. The District Attorney’s Office filed an Answer to the Rule with New Matter on June 17, 2008. Both parties then filed briefs and after argument the Court denied the Motion to Compel Discovery on July 31, 2008. Appellant then filed her notice of Appeal to the Superior Court on August 29, 2008. Factual Summary On April 21, 2007, a report was received by Cumberland County Children and Youth Services from the ChildLine Abuse Reporting Systems that L.S. (date of birth: 4/01/03), the daughter of Appellant, may have been sexually abused. Cumberland County Children and Youth Services immediately began the required civil investigation. The matter was also referred to both the Cumberland County District Attorney and the Upper Allen Township Police Department who began official criminal investigations on or about April 25, 2007. During the course of the criminal investigation, the child was interviewed and video taped at the Children’s Resource Center in Harrisburg. Police reports relative to the investigation and polygraph reports of polygraphs given to the Appellant and her current husband, Gary Shunk were prepared. On October 10, 2007, Cumberland County Children and Youth completed its child protective service investigation and filed Form CY48-6/95 with the Department of Welfare. The report “indicated” that the Appellant was a perpetrator of sexual assault. Being “indicated” the report was required to be maintained pursuant to the Child Protective Services Law. 23 Pa.C.S.A. §6301 et. seq. Appellant then requested the Department of Public Welfare to expunge the report of child abuse against her. The Department of Public Welfare, Office of Children, Youth and Families, completed its review of Appellant’s request to expunge on or about March 19, 2008, and stated that they found the report to be accurate and that it would be maintained in their records as originally reported. Subsequently, on March 25, 2008, the Appellant requested a hearing before the Secretary of the Department of Public Welfare or his designee. From a review of the records currently in the possession of Cumberland County Children and Youth, it appears that that hearing is now scheduled for January 14, 2009. 2 DISCUSSION The issue presented here is whether criminal investigation materials in the hands of the elected District Attorney of Cumberland County are required to be disclosed to a party in a civil custody action. In briefing the issue, neither party has provided this Court with any controlling case law. Initially, we note that in custody cases, “There shall be no discovery unless authorized by special order of court.” Pa.R.C.P. No. 1915.5(c). Both parties note that th the only reported case involving Rule 1915.5(c) is Ford v. Ford, 1 Pa. D.&C. 4 98 (1988) from the Court of Common Pleas of Monroe County. While Appellant points out that that case involved a request for a deposition and not disclosure of investigative materials in the hands of a District Attorney, Judge O’Brien concluded that discovery in custody proceedings is not presently permitted by the Pennsylvania Rules of Civil Procedure. This Court is not prepared to go quite that far. To do so would totally negate the phrase in the rule “unless authorized by special order of court” which obviously contemplates that allowing discovery is a matter within the discretion of the Court. In other types of civil cases involving a demand for discovery, it has often been said that “discovery matters are within the discretion of the trial court and the Appellate Court employs an abuse of discretion standard of review.” Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004). In denying the Appellant’s request for discovery, this Court takes into account that the District Attorney of a county is by law designated “the Chief Law Enforcement Officer for the County in which he is elected.” 71 Pa.C.S.A. §732-206(a). Accordingly, he alone can determine when to initiate a criminal investigation, the scope of the investigation, what evidence to collect during the investigation and when and if any 3 criminal charges will be filed against any person. The Appellant in her Motion for Rule to Compel Discovery requests that this Court issue a Rule to Show Cause upon the District Attorney why his investigation should not be deemed concluded. Such a request is beyond the constitutional powers of this Court. An examination of the information included in the ChildLine report, indicate that criminal charges could be filed at minimum for aggravated indecent assault of a child, a felony of the first degree, 18 Pa.C.S.A. §3125. Given the fact that the child in question is currently only 5 years old, the statute of limitations for this offense will not expire until April 1, 2053. 42 Pa.C.S.A. §5552(c) (3). The Appellant herself states in her brief that the child was of such tender years that “she was barely verbal.” This being the case, it is not unusual for a District Attorney to wait until the child is older and perhaps better able to testify before completing his investigation or filing charges. Thus, the District Attorney’s position that the requested video tapes and investigatory reports are not sought out of need to resolve a custody issue, but rather to formulate a defense to allegations of sexual crimes cannot be dismissed out of hand. The Court notes that at this stage, this matter remains a custody battle between two parents. The District Attorney, an executive branch investigative agency, is not a party to the custody action. If the District Attorney does not release the requested materials to either party, no party will gain any advantage at the custody hearing. Equally important is the fact that nothing in this decision would prohibit the petitioner and her husband from testifying as to what he told the police or the polygraphist. Along the same lines, Appellant’s expert psychologist or psychiatrist could certainly opine that children are often misled, have been tainted, or manipulated during custody proceedings. In examining the Appellant’s pre-hearing memorandum in the custody 4 matter currently scheduled to be heard before this Court on December 1, 2008, she lists no less than 15 witnesses, at least three of which are experts. In short, this court finds that the Appellant is not unduly hampered in the presentation of evidence regarding what is in the best interest of her child. At this stage, it would appear that Father will be unable to prove conclusively that the child was molested. Therefore, each party comes before the Custody Court on equal footing. As a matter of public policy, (1) given the general rule against discovery in custody cases, (2) the important constitutional consideration of separation of powers between this Court and the District Attorney’s Office, and (3) the District Attorney’s fundamentally sound rationale for not disclosing these investigative materials, this Court did not abuse its discretion in denying Appellant’s request to compel. Interestingly, Appellant relies on the case of John M. v. Paula T., 546 A.2d 1162 (Pa. Super. 1988), for the proposition that discovery in custody cases “should be freely given where it is essential to a just disposition of the matter.” Id. at 1166. Unfortunately, for the Appellant, as pointed out by the District Attorney, this decision was overturned by the Supreme Court at John M. v. Paula T., 571 A.2d 1380 (Pa. 1990). While the case is not directly on point, in that it dealt with a request to compel an individual to submit to a blood test to determine paternity, it does involve a family law case. The Court decided the matter by balancing the respective interests of the parties to determine whether the requesting party had a compelling need to justify the discovery request. The Supreme Court weighed the evidentiary value of the blood test and considered other public policy considerations. In John M. v. Paula T., the Court stated that while blood tests are useful in establishing the likelihood of paternity they are not conclusive and that a public policy existed which outweighed the value of the request for the blood test. 5 Here, the requested interview tapes and investigative reports might assist the Appellant, but on the other hand, if these materials were presented to the Court and the Court concluded, as did the Children and Youth investigation and the Department of Public Welfare, that the allegations of abuse were substantiated, it would most certainly have a negative impact on Appellant’s right to custody or visitation. Since these evidentiary materials sought from the District Attorney cannot be used by either party, the governmental interest of the District Attorney in properly conducting a child abuse investigation outweighs the need for the Appellant to obtain these materials. This is especially true in light of the fact that she has other evidence and numerous witnesses available to establish that the best interest of the child will be served by granting some custody or visitation to her, the natural mother. The District Attorney maintains that the Pennsylvania Right-to-Know Act, 65 P.S. § 66.1(2) prohibits the disclosure of these investigative materials. Of course, the Appellant insists that she has not made this application under the Right-to-Know Act but believes that Pa.R.C.P. 1915.5 (c) allowing discovery by special Order of Court in a custody case trumps the prohibition of the Pennsylvania Right-to-Know Act that investigative materials shall not be disclosed. Again, neither party has provided any controlling precedent directly on point. The case of Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), provides some guidance. In Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), plaintiff, a physician, challenged the Office of the Attorney General’s denial of access to certain records. Specifically, the Attorney General refused to disclose information that was part of a criminal investigation of the physician for drug offenses. No charges were ever filed against the doctor. The court ruled in favor of the Attorney General, holding that disclosure was not required because of the investigatory 6 exception to the Right-to-Know Act. The Office of the Attorney General was not required to give the plaintiff access to the investigative records. In Amro, the Appellant, Dr. Amro, much like the Appellant in the case at bar, maintained that he was “an innocent victim of orchestrated entrapment attempts and widespread misinformation.” Id. at 898. Here, Appellant maintains that her former husband falsely instigated the District Attorney’s criminal investigation, and that just like Amro she wants the investigative files to prove her “innocence.” In these circumstances, public policy favors protection of the criminal investigation files. The Right-to-Know Act, 65 P.S. § 66.1(2) defines what are public records, and accordingly what documents are subject to disclosure. This section of the statute expressly excludes, however, “any report, communication or other paper, the publication of which would disclose the institution, progress, or result of an investigation undertaken by an agency in the performance of its official duties.” Documents, reports, video, and other information pertaining to a criminal investigation by the Office of the Attorney General or the Office of the District Attorney would fall within this exception. In Amro, the requested file was prepared by the Office of the Attorney General as part of a “predecisional, internal deliberative process for determining whether to prosecute Amro.” Amro, 783 A.2d 900. The reports requested by Elizabeth Smith, in the instant case, also appear to be part of the “predecisional, internal deliberative process for determining whether to prosecute” her. Id at 900. Elizabeth Smith requests video tapes and “all other reports” from the District Attorney’s office pertaining to the investigation of her daughter’s alleged abuse. This request must be judged in light of the general rule that there shall be no discovery in custody cases unless allowed by a special order of court. Pa.R.C.P. No. 1915.5(c). 7 In a proper exercise of its discretion, this Court concludes that no special order authorizing discovery of these materials is warranted. This decision is based on the fact (1) that the District Attorney has a legitimate reason for not disclosing the investigative materials, (2) that the Appellant has no compelling need for these investigative materials because she has adequate evidence and witnesses available to present at her custody hearing, and (3) that the constitutionally required separation of powers between this Court and the Chief Law Enforcement Officer of the executive branch of government must be observed. Accordingly, the Appellant’s Motion to Compel Discovery was properly denied. By the Court, M. L. Ebert, Jr., J. Mary A. Etter Dissinger, Esquire Attorney for Plaintiff Mark F. Bayley, Esquire Barbara Sumple-Sullivan, Esquire Lindsay Maclay, Esquire Christin Mehrtens-Carlin, Esquire Senior Assistant District Attorney bas 8