E. J. McAleer & Co. v. Iceland Products, Inc.

62 Pa. D. & C.2d 65, 1973 Pa. Dist. & Cnty. Dec. LEXIS 224
CourtPennsylvania Court of Common Pleas, Cumberland County
DecidedJune 4, 1973
Docketno. 293
StatusPublished

This text of 62 Pa. D. & C.2d 65 (E. J. McAleer & Co. v. Iceland Products, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Cumberland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
E. J. McAleer & Co. v. Iceland Products, Inc., 62 Pa. D. & C.2d 65, 1973 Pa. Dist. & Cnty. Dec. LEXIS 224 (Pa. Super. Ct. 1973).

Opinion

SHUGHART, P. J.,

Plaintiff, E. J. Mc-Aleer & Company, trading as Mrs. Paul’s Kitchens (hereafter referred to as Mrs. Paul’s) has instituted this action in assumpsit against Iceland Products, Inc. (hereafter referred to as Iceland) and Samband Isl. Samvinnufelaga (The Federation of Iceland Co-Operative Societies) (hereafter referred to as Samband) for their alleged breach of a contract to furnish plaintiff 5,000,000 pounds of frozen codfish block in 1969-1970. Mrs. Paul’s alleges damages of $1,856,816.83 as follows: (a) additional cost of substitute fish, assuming its availability, $248,855; (b) additional manufacturing cost in processing standard block to contract size, $110,710.35; (c) five percent loss of profit, $497,251.48; and (d) damages to going-concern value, reputation, and business in the national market, $1,000,000.

After the disposition of initial jurisdictional issues, Iceland and Samband submitted written interrogatories to plaintiff pursuant to Pennsylvania Rule of Civil Procedure 4005. Mrs. Paul’s supplied much of the requested information but objected to several requests as being outside the scope of discovery. On March 20, 1973, defendants jointly filed a motion to permit inspection of documents, in accordance with Pennsylvania Rule of Civil Procedure 4009, concerning the matters previously objected to by plaintiff. Mrs. Paul’s filed timely objections to these requests, briefs were submitted and oral argument has been presented.

[68]*68Rule 4009 permits a party to inspect documents and other tangible property of the opponent subject to the limitations of Rules 4007 and 4011. Rule 4007(a) allows discovery or inspection only when it concerns nonprivileged matters which are “relevant” and will “substantially aid” in the preparation of the case. In essence, Rule 4011 states that discovery is not permitted when it: (a) is in bad faith; (b) causes unreasonable annoyance, embarrassment or expense; (c) would require disclosure of privileged matters or secret processes; (d) would require disclosure of information prepared or acquired in anticipation of litigation; (e) would require an unreasonable investigation; (f) would require giving an expert opinion over deponent’s objection.

As our courts have previously emphasized:

“[N]o hard and fast rule can be laid down as to what must be disclosed under the Discovery Rules, but . . . each case must be determined upon its own particular facts as they appear in the pleadings”: Basom v. Rosser, 3 D. & C. 2d 631, 635 (1955).

Some framework can, however, be placed upon our analysis. Many of defendants’ requests for inspection are broadly phrased and plaintiff’s objections, therefore, revolve primarily upon assertions that the requests are not relevant, will not be of substantial aid to defendants, and will place unreasonable burdens upon plaintiff. It is generally agreed that the party requesting inspection must indicate that the information desired will be relevant and of substantial aid in preparing the case: Kolansky v. Hills, 34 D. & C. 2d 751, 753 (1964). The burden then shifts to the other side to show that the discovery is precluded by the exceptions of Rule 4011. Mere inconvenience or annoyance, however, cannot defeat a need rising [69]*69out of the pleadings: Friedman v. Pittston City, 46 Luz. 283 (1956).

We believe that the best method of evaluating these factors is set forth in Venito v. Pennsylvania Railroad Co., 10 Chester 237 (1960), where the court stated, at page 240:

“Where a reasonable likelihood of relevancy to the subject matter of the action as it relates to the issues raised by the pleadings appears, the interrogatory should be allowed as relevant, but where this is not reasonably apparent and where the interrogatory is so broadly phrased as to embrace information which is entirely too remote, or which could not be relevant at trial, it should not be allowed.
“ [A] lmost anything even remotely connected with a case might be of substantial aid to the inquirer, even if only for the purpose of discarding it once it is known. This, in our opinion, further justifies our view that a more restricted interpretation should be placed upon the requirements of relevancy. Were it not so, virtually any information sought might be deemed to be relevant and to be a substantial aid to the inquirer.
“Generally speaking . . . [whether a party is being unreasonably annoyed, embarrassed, oppressed, caused expense, or caused to make an investigation] will bear a strong relation to relevancy. It is an unreasonable burden to require a party to conduct an investigation in order to answer interrogatories concerning matters that ‘might possibly’ for some remote reason be usable at trial. To hold otherwise is to allow a party to probe and pry without limitation.” (Bracketed portion added.)

The above analysis is particularly important in view of the fact that Mrs. Paul’s and Iceland are busi[70]*70ness competitors in the same market. Broad requests for inspection by a competitor are not to be granted where there is not a showing of relevancy or where it would reveal confidential information or trade secrets: Hagy v. Premier Manufacturing Corp., 404 Pa. 330, 332 (1961). On this basis, we will examine the specific requests for inspection made by defendants.

Request No. 1. Financial statements of Mrs. Paul’s, including balance sheets and profit and loss statements for the fiscal or calendar years of plaintiff, Mrs. Paul’s, which include January 1, 1965, and December 31, 1971, as well as any notes or separate statements made by the independent certified public accountants of plaintiff relative thereto.

Plaintiff has provided the financial statements but objects to the production of the accountant’s notes. Plaintiff has alleged approximately $1.5 million in damages to national reputation, etc., and in lost profits. In order to provide defendants an opportunity to meet the allegations, they must be permitted to examine plaintiff’s business records insofar as the requests are relevant and reasonable. The accountant’s explanations are fundamental to an understanding of the financial statements and, therefore, any information pertinent to the financial statements compiled by the accountants is subject to defendants’ inspection.

Plaintiff claims that the communications with its accountants are privileged, apparently under the Act of May 26, 1947, P. L. 318, as amended, 63 PS §9.11a, which establishes a limited accountant-client privilege in the Commonwealth. However, this statute excludes from the privilege any information acquired by the accountant as a result of an “examination of audit of or report on any financial statements, books, records, or accounts, which he may be engaged to make”: [71]*71Marine Midland Trust Company of Southern New York v. Douvanis, 50 D. & C. 2d 403, 409 (1970). Also see United States v. Bowman, 358 F.2d 421 (3d Cir. 1966). Since the accountants could be required to produce their notes and statements relative to the financial statements prepared for plaintiff, we fail to see how plaintiff can claim the information is privileged.

Request No. 2. The books, records, memoranda and statements from which the information was obtained to arrive at the totals that would be indicated on the balance sheets and profit and loss statements requested to be produced under paragraph 1 hereof.

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Related

Hagy v. Premier Manufacturing Corp.
172 A.2d 283 (Supreme Court of Pennsylvania, 1961)
United States v. Bowman
358 F.2d 421 (Third Circuit, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
62 Pa. D. & C.2d 65, 1973 Pa. Dist. & Cnty. Dec. LEXIS 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/e-j-mcaleer-co-v-iceland-products-inc-pactcomplcumber-1973.