Veloric, G. v. Doe, J.

J-A17005-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GARY VELORIC AND NANCY VELORIC IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JOHN DOE AND/OR JANE DOE

APPEAL OF: BRAD HEFFLER

No. 2998 EDA 2014

Appeal from the Order Entered September 10, 2014

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2012-19479

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY OTT, J.: FILED JULY 30, 2015

Brad Heffler (“Heffler”), a subpoenaed third party, appeals the order

entered September 10, 2014, in the Montgomery County Court of Common

Pleas, directing him to answer ten deposition questions posed by counsel for

plaintiffs, Gary and Nancy Veloric (“the Velorics”). In the underlying action,

the Velorics filed suit against “John and Jane Doe” (“the Doe defendants”),

seeking damages for, inter alia, defamation and slander, based upon an

anonymous telephone call and two e-mails Nancy Veloric received, claiming

her husband, Gary Veloric, was having an affair. The order at issue was

entered after Heffler invoked his Fifth Amendment privilege against self-

incrimination, and refused to answer most of the questions posed to him

during his deposition. On appeal, Heffler contends the trial court erred in

J-A17005-15

denying his claim of privilege and directing him to answer ten deposition

questions. For the reasons below, we affirm.

The facts underlying the order on appeal are aptly summarized by the

trial court as follows:

Plaintiff[s] Gary Veloric and Nancy Verloric, husband and

wife (“the [Velorics]”), filed suit against John Doe and/or Jane

Doe (“the Doe Defendants”), seeking damages on behalf of Gary

Veloric for defamation, slander, libel, injurious falsehood, and

intentional infliction of emotional distress, and, damages for loss

of consortium on behalf of Nancy Veloric. [The Velorics] aver

that Nancy Veloric received a phone call on January 18, 2012

from an unidentified woman (“Jane Doe”) who claimed to be

Gary Veloric’s girlfriend and she was angry because he was

having sexual relations with another woman. Nancy Veloric

questioned her husband regarding the phone call and he denied

the anonymous caller’s claims. After some research, Nancy

Veloric determined the phone number of the unidentified caller

included a Nashville, Tennessee area code, and, was no longer in

service.

According to the Complaint, on March 9, 2012, Jane Doe

sent an email to Nancy Veloric claiming her husband told her

that Gary Veloric was cheating on Nancy with a few different

women. Gary Veloric denied these allegations. Another email

was sent to Nancy Veloric on May 3, 2012, claiming that

“besides other women, he has added hookers, so I’d be really,

really careful when you are with him.” [The second e-mail also

stated that the name on the email “Beth Nashton” and the e-

mail address “bnasht@gmail.com” were “made up.” Complaint,

Exhibit A.].

[The Velorics] proceeded with discovery, and issued

subpoenas to third parties Brad and Andrea Heffler to attend and

testify at depositions.7 Brad Heffler was deposed by [the

Velorics] on March 14, 2014 (“the Deposition”). Heffler invoked

the Fifth Amendment, and attorney client privilege, refusing to

answer several of the questions posed to him during the

Deposition. [The Velorics] filed a Motion to Compel the

Testimony of Brad Heffler (“Motion to Compel”), claiming that

Heffler invoked the Fifth Amendment “to virtually every

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question.” After hearing and argument (“the Hearing”) on the

Motion to Compel, and reviewing the Deposition, the Court

ordered Heffler to answer some of the questions at issue and

sustained his objections to others (“the Order”). Other questions

remaining were resolved either by counsels’ agreement to

withdraw certain questions, or, by Heffler’s agreement to answer

some of the questions. Continuing to rely upon the Fifth

Amendment and/or attorney client privilege, Heffler refused to

answer those questions he was ordered to answer that were not

otherwise resolved, and, this Appeal ensued.

__________

7

The Velorics and the Hefflers were previously involved in

litigation before the Montgomery County Court of Common

Pleas in the matter of Gary Veloric and Nancy Veloric v.

Brad Heffler and Andrea Heffler, et. al., docketed at 2009-

09902, in which the Velorics[] raised claims of trespass,

conversion, waste, negligence, and, nuisance. At the time,

the Veloric and Heffler residences shared a property line

(“the Trespass Complaint”). There were also related cases

at Gary Veloric and Nancy Veloric v. Montgomery County

Lands Trust, docketed at 2010-2140, and Gary Veloric and

Nancy Veloric v. Whitemarsh Township, docketed at 2009-

42979. Ultimately, a praecipe to settle, discontinue and

end was docketed in each of these three cases.

Trial Court Opinion, 2/20/2015, at 1-3 (some footnotes and emphasis

omitted).1

____________________________________________

1

On October 8, 2014, the trial court ordered Heffler to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Heffler complied with the court’s directive, and filed a concise statement on

October 24, 2014.

We note that the Doe defendants have also filed an appeal from a

pretrial discovery order, namely a December 1, 2014, order of the trial court

granting the Velorics’ motion to compel discovery and ordering the Doe

defendants to appear for depositions. That appeal, docketed at No. 121 EDA

2015, was originally listed consecutively with this appeal, however, counsel

for the Doe defendants requested, and was granted, a continuance of oral

(Footnote Continued Next Page)

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Before we address Heffler’s substantive issue, we must first consider

the Velorics’ claim that the order on appeal is not appealable.2 “We address

this issue first because the appealability of an order directly implicates the

jurisdiction of the court asked to review the order.” EMC Mortgage, LLC v.

Biddle, 114 A.3d 1057, 1060 (Pa. Super. 2015) (citation omitted).

Generally, “[a]n appeal may be taken only from a final order unless

otherwise permitted by statute or rule. A final order is ordinarily one which

ends the litigation or disposes of the entire case[.]” Ben v. Schwartz, 729

A.2d 547, 550 (Pa. 1999). Most “discovery orders are deemed interlocutory

and not immediately appealable because they do not dispose of the

litigation.” Dougherty v. Heller, 97 A.3d 1257, 1261 (Pa. Super. 2014)

(en banc) (citation omitted), appeal granted in part, 109 A.3d 675 (Pa.

2015). However, certain discovery orders, particularly those involving

ostensibly privileged material, have been found to be immediately

appealable as collateral orders pursuant to Pa.R.A.P. 313. See

Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123-1124

(Pa. Super. 2007).

Rule 313 provides, in relevant part:

_______________________

(Footnote Continued)

argument. The case is now scheduled to be argued before a panel of this

Court in mid-July, 2015.

2

Heffler addresses the appealability of the order sub judice in the second

issue in his brief. See Heffler’s Brief at 21-25.

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(a) General rule. An appeal may be taken as of right from a

collateral order of an administrative agency or lower court.

(b) Definition. A collateral order is an order separable from and

collateral to the main cause of action where the right involved is

too important to be denied review and the question presented is

such that if review is postponed until final judgment in the case,

the claim will be irreparably lost.

Pa.R.A.P. 313.

In the present case, the order on appeal is the discovery order,

entered September 10, 2014, directing Heffler to answer ten specific

questions posed by the Velorics’ counsel during his deposition and, implicitly

overruling Heffler’s invocation of his Fifth Amendment privilege against self-

incrimination.3 Heffler contends the order is appealable as a collateral order.

We agree.

As noted above, an otherwise interlocutory order may be immediately

appealable as a collateral order if it satisfies all three prongs of the collateral

____________________________________________

3

At the conclusion of the September 10, 2014, hearing on the issue, the

trial court entered a ruling from the bench directing Heffler to answer ten

specific deposition questions. N.T., 9/10/2014 (Court Order) at 1-7. That

same day, the court entered the following written order:

AND NOW, this 10th day of SEPTEMBER, 2014, after

proceeding in open Court this day, the Order of the Court is as

recited on the record in open court this day.

The Court Reporter is directed to transcribe the Notes of

Testimony which shall constitute the written Order of the Court.

Costs of the transcript shall be shared equally between the

parties.

Order, 9/10/2014.

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order test. Dougherty, supra, 97 A.3d at 1261. First, the order must be

separate and distinct from the main cause of action. Berkeyheiser, supra,

936 A.2d at 1123. This prong is easily met by the order sub judice. The

question of whether Heffler properly invoked his constitutional right against

self-incrimination may be addressed without consideration of the merits of

the Velorics’ underlying defamation action.

The second prong of the collateral order test mandates that the order

“must involve rights deeply rooted in public policy going beyond the

particular litigation at hand.” Id. (citations omitted). The courts of this

Commonwealth have held that discovery orders raising questions of

executive privilege, attorney/client privilege, and privacy interests all raise

the type of deeply rooted public policy concerns necessary to qualify as a

collateral order. See Ben, supra, 729 A.2d at 552 (determination as to

whether investigative files of Bureau of Professional and Occupational Affairs

“are subject to any executive or statutory privilege implicates rights rooted

in public policy, and impacts on individuals other than those involved in this

particular litigation.”); Berkeyheiser, supra, 936 A.2d at 1124 (“the issues

of attorney-client and work-product privileges, as well as privacy concerns,

[in an order directing defendant to turn over discovery materials,] implicate

rights deeply rooted in public policy, especially where the disclosure of such

information affects individuals other than those involved in this particular

case.”); J.S. v. Whetzel, 860 A.2d 1112, 1117 (Pa. Super. 2004) (order

directing expert witness “to submit every 1099 form he received from any

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insurance company and/or attorney from 1999 through 2002,” raised

“sufficiently important public concern” regarding expert’s privacy interest in

his income information to qualify as collateral order).

We find the order at issue herein similarly raises a right “deeply rooted

in public policy.” Berkeyheiser, supra, 936 A.2d at 1123. Indeed,

Heffler’s privilege against self-incrimination is protected under both the

United States and Pennsylvania Constitutions. See U.S. Const., Amend. V;

Pa. Const., Art. I, § 9. Although his answers to the requisite deposition

questions would potentially implicate only himself, the privilege against self-

incrimination is so engrained in our nation that it constitutes a right “deeply

rooted in public policy.” Berkeyheiser, supra, 936 A.2d at 1123. See

Kastigar v. United States, 406 U.S. 441, 444-445 (1972) (“The privilege

[against self-incrimination] reflects a complex of our fundamental values and

aspirations, and marks an important advance in the development of our

liberty[, and t]his Court has been zealous to safeguard the values which

underlie the privilege.”).

Lastly, to qualify as an appealable collateral order, the order must be

such that “if review is postponed until final judgment of the case, the claim

will be irreparably lost.” Ben, supra, 729 A.2d at 552. The Velorics argue

that this prong is not met in the instant matter because, if Heffler is

criminally prosecuted based upon disclosures he makes during his compelled

deposition, the trial court in a later criminal matter could exclude the

evidence as violative of his privilege against self-incrimination. See Velorics’

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Brief at 2. Therefore, they insist Heffler’s right to review the court’s ruling

will not be “irreparably lost.” Id.

However, we find the Velorics’ proposal undermines the purpose of the

constitutional privilege. First, if Heffler continues to disobey the court’s

order, he would be subject to sanctions, including contempt proceedings.

“[T]he option of disobeying a disclosure order and being thus subject to

discovery or contempt sanctions as a way of obtaining review is so extreme

as to be no option at all.” Commonwealth v. Harris, 32 A.3d 243, 251

(Pa. 2011) (holding order overruling claim of doctor/client privilege

immediately appealable as collateral order). Moreover, Heffler should not be

subject to the costs and emotional toll of a prosecution based upon his

privileged answers, even if the answers may later be suppressed.

Accordingly, we conclude the order at issue is appealable as a collateral

order, and we now turn to the merits of the appeal.

In his primary claim, Heffler argues the trial court erred in implicitly

overruling the invocation of his constitutional right against self-incrimination,

and directing him to answer the following ten questions, posed to him during

his deposition:4

____________________________________________

4

Heffler includes a third issue in his brief in which he challenges the trial

court’s determinations that (1) he waived his claim of privilege because he

did not specify the crime with which he could potentially be charged, and (2)

he failed to include certain documents necessary for appellate review in the

(Footnote Continued Next Page)

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1) Have you heard from any other source and learned

knowledge of the contents of that alleged phone call

[referring to phone call made to Nancy Veloric on January

18, 2012]?

2) Have you learned from any other source any information

concerning the telephone number (615)242-4934?

3) Do you have any knowledge of any kind concerning that

address [referring to email address “bnasht@gmail.com”]?

4) Are you aware that [the Velorics’ counsel] authored a letter

to [your counsel] offering to permit you to avoid testifying

at a deposition if you would execute an affidavit stating that

you had no knowledge of the telephone number, the alleged

phone call and the two e-mails and the alleged e-mail

address?

5) Let’s mark this as P-1 [referring to 10/8/2013 letter from

the Velorics’ counsel to Heffler’s counsel]. … I’m going to

show you what I’ve marked as P-1, and I’m going to ask

you if you’ve ever seen this before.

6) Let’s mark this as P-2, then [referring to response from

Heffler’s counsel to Velorics’ counsel]. … I’m showing you a

document that I’ve marked as P-2 and I’m going to ask you

if you’ve ever seen that before.

7) Let’s mark this as P-3 [referring to copy of anonymous e-

mails sent to Nancy Veloric]. … Do you have any information

as to who authored the two e-mails on P-3?

8) Do you see on P-3 that the two e-mails that are referenced

are dated, respectively, March 9, 2012 and May 3, 2012,

although I think they might be actually reversed on the

page?

9) I’m going to rephrase that. Are you aware of any

information concerning the identity of the Doe defendant or

defendants in this case?

_______________________

(Footnote Continued)

certified record. See Heffler’s Brief at 25-27. We will address those

contentions within this issue.

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10) Do you have any knowledge of any kind that would lead you

to believe who the Doe defendant or defendants may be?

See Trial Court Opinion, 2/20/2015, at 6-10, citing Oral Deposition of Brad

Heffler, 3/14/2014, at 17, 19, 20, 22-23, 26-27. In response to each of

these questions, Heffler invoked his right to remain silent under the Fifth

Amendment.5

It is well-settled that “the privilege against self-incrimination can be

asserted ‘in any proceeding, civil or criminal, administrative or judicial,

investigatory or adjudicatory.’” Maness v. Meyers, 419 U.S. 449, 464,

(1975) (citation omitted). When the privilege is invoked in state

proceedings, it is governed by federal standards. Commonwealth v.

Hawthorne, 236 A.2d 519, 520 (Pa. 1968). “In other words, the standards

to be [] used in determining whether or not the silence of one questioned

about the commission of a crime is justified are the same in both state and

federal proceedings.” Commonwealth v. Carrera, 227 A.2d 627, 629 (Pa.

1967), superseded by statute on other grounds, Commonwealth v.

Swinehart, 664 A.2d 957 (Pa. 1995).

____________________________________________

5

With regard to questions four, five and six, Heffler also refused to answer

based upon attorney/client privilege. See Oral Deposition of Brad Heffler,

3/14/2014, at 19-23. However, in his concise statement and his brief before

this Court, Heffler challenges the court’s ruling only with respect to his

privilege against self-incrimination. Therefore, he has waived any

attorney/client privilege claim on appeal. See Commonwealth v. Reyes-

Rodriguez, 111 A.3d 775, 781 (Pa. Super. 2015) (“Because Appellant has

failed to develop his argument or cite authority, he is not entitled to relief on

his first claim.”).

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Our review of a Fifth Amendment claim is governed by the following

principles:

The Fifth Amendment declares in part that ‘No person * *

* shall be compelled in any Criminal Case to be a witness

against himself’. This guarantee against testimonial compulsion,

like other provisions of the Bill of Rights, ‘was added to the

original Constitution in the conviction that too high a price may

be paid even for the unhampered enforcement of the criminal

law and that, in its attainment, other social objects of a free

society should not be sacrificed.’ This provision of the

Amendment must be accorded liberal construction in favor of the

right it was intended to secure.

The privilege afforded not only extends to answers that

would in themselves support a conviction under a federal

criminal statute but likewise embraces those which would furnish

a link in the chain of evidence needed to prosecute the claimant

for a federal crime. But this protection must be confined to

instances where the witness has reasonable cause to apprehend

danger from a direct answer. The witness is not exonerated

from answering merely because he declares that in so

doing he would incriminate himself—his say-so does not

of itself establish the hazard of incrimination. It is for the

court to say whether his silence is justified, and to require

him to answer if ‘it clearly appears to the court that he is

mistaken.’ However, if the witness, upon interposing his claim,

were required to prove the hazard in the sense in which a claim

is usually required to be established in court, he would be

compelled to surrender the very protection which the privilege is

designed to guarantee. To sustain the privilege, it need only

be evident from the implications of the question, in the

setting in which it is asked, that a responsive answer to

the question or an explanation of why it cannot be

answered might be dangerous because injurious

disclosure could result. The trial judge in appraising the claim

‘must be governed as much by his personal perception of the

peculiarities of the case as by the facts actually in evidence.’

Hoffman v. United States, 341 U.S. 479, 485-487 (1951) (internal

citations omitted and emphasis supplied). See also Carrera, supra.

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In its opinion, the trial court first concluded Heffler waived his

challenge to questions five, six, seven and eight because he failed to insure

that the exhibits referred to in those questions were part of the certified

record. See Trial Court Opinion, 2/20/2015, at 11. Next, with regard to the

remaining questions, the court determined Heffler “is mistaken in his

concerns regarding self-incrimination.” Id. at 13. The court provided the

following rationale:

Heffler acknowledges that he is not at risk of prosecution based

upon harassment, because the statute of limitations for

harassment is only two years and the events at issue occurred

between January 18, 2012 and May 3, 2012 []. He then argues,

however, other criminal offenses in Pennsylvania are subject to

five-year statutes of limitation, citing 42 Pa.C.S.A. § 5552(b)

(“Section 5552(b)”). Heffler’s [Memorandum of Law in

Opposition to Plaintiff’s Motion to Compel His Testimony],

however, fails to indicate which of the some twenty-eight major

offenses listed in Section 5552(b) he could be charged with in

the event the Order is affirmed. Nor does the Concise

Statement raise a claim of error regarding any specific offense

he might be charged with in the event he answers the Questions.

Without more detail as to which of the crime(s) listed in Section

5552(b) apply, the Court cannot address this argument.

Further, upon review, it does not appear that Heffler could be

charged with any criminal offense under Section 5552(b).

Our Supreme Court explained that when an individual is

called to testify in a judicial proceeding, “he or she is not

exonerated from answering questions merely upon the

declaration that in doing so it would be self-incriminating. It is

always for the court to judge if the silence is justified, and an

illusory claim should be rejected.” Carrera, 227 A.2d at 629.

The U.S. Constitution and the Pennsylvania Constitution both

protect an individual from being called as a witness against

himself in criminal and civil proceedings, formal or informal,

where the answers to questions might incriminate the individual

in further criminal proceedings. The Court is hard-pressed,

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however, to find that the answers to the Question[s] could

possibly be incriminating.

Id. at 13-14 (footnote omitted).

With regard to the court’s determination that he waived his challenge

to questions five, six, seven and eight, Heffler acknowledges that the trial

court is “technically correct” that Exhibits P-1 and P-2, referred to in

questions five and six, were not made part of the certified record. Heffler’s

Brief at 26. However, he asserts the exhibits “were described on the record,

and it appeared as if the court was looking at them[.]” 6 Id. Moreover, after

the appeal was filed, the parties entered into a stipulation whereby they

agreed that Exhibits P-1 and P-2 “should be included in the original record

and transmitted to the Superior Court of Pennsylvania.” Stipulation,

3/3/2015. Thereafter, on March 4, 2015, Heffler filed an application in this

Court for correction of the certified record. On March 30, 2015, we granted

Heffler’s application, and the trial court later supplemented the certified

record with the letters that were designated as Exhibits P-1 and P-2 during

Heffler’s March 14, 2014, deposition. Accordingly, we are not precluded

from reviewing Heffler’s Fifth Amendment challenge to questions five and

six.

____________________________________________

6

See Oral Deposition of Brad Heffler, 3/14/2014, at 22 (identifying Exhibit

P-1 as a letter from Velorics’ counsel to Heffler’s counsel dated 10/8/2013);

24 (identifying Exhibit P-2 as a letter from Heffler’s counsel to Velorics’

counsel in response to the 10/8/2013 letter).

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With regard to the exhibit P-3, referred to in questions seven and

eight, our review of Heffler’s deposition transcript reveals that Exhibit P-3

was a printed copy of the two anonymous emails Nancy Veloric received

from the sender, “bnasht@gmail.com.” See Oral Deposition of Brad Heffler,

3/14/2014, at 25-26. Further, these emails were part of the certified

record, as they are attached to the Velorics’ complaint. See Complaint,

7/19/2012, Exhibit A. Accordingly, we agree with Heffler that his challenge

to all ten questions at issue is preserved for our review.

Nevertheless, we find that Heffler’s Fifth Amendment challenge to

questions four, five, six and eight fails on the merits. With respect to these

questions, Heffler was asked: (1) if he was aware the Velorics’ counsel

sent a letter to his attorney offering him the opportunity to execute an

affidavit in lieu of deposition testimony (Question 4); (2) if he had seen the

letter from the Velorics’ counsel before the deposition (Question 5); (3) if

he had ever seen the response sent by his own lawyer (Question 6); and

(4) if he could see the date of the e-mails on the exhibit (Question 8).

We can conceive of no answers to these questions that would tend to

incriminate Heffler, or lead to evidence that might demonstrate his

culpability for the acts described in the complaint. See Hoffman, supra.

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Accordingly, we conclude the trial court properly overruled his claim of

privilege with regard to these questions.7

With regard to the remaining questions, Heffler argues that “[e]ach

question … has a possible answer that could lead to evidence that would

support [his] violation of crimes related to the use of computers, or a

conspiracy to do so.” Heffler’s Brief at 21. He emphasizes he is not required

to “prove the hazard, because then he … would surrender the protection the

privilege was designed to protect.” Id. at 18, citing Hoffman, supra.

Moreover, he claims he need not demonstrate “a real danger of prosecution

exists.” Id. at 17. Although Heffler does not provide any analysis of the

potential crimes with which he might be charged, he asserts the Velorics’

counsel “conceded” that his answers could lead to a charge of unlawful use

of a computer, a crime that was still within the statute of limitations. Id. at

20.

Furthermore, we note that at oral argument for this appeal, Heffler

again declined to expound on the specific crimes with which he might be

charged, but referred to the Velorics’ complaint, which stated “whatever

salacious purpose the sender or senders have, that purpose is both civilly

and criminally censorable, both under State and under Federal Law.”

____________________________________________

7

We note Heffler does not differentiate between the questions he was

directed to answer. Rather, he claims, generally, that all of the questions

could lead to incriminating answers.

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Complaint, at ¶ 18 (emphasis supplied). Heffler also cited two Pennsylvania

Supreme Court decisions, to support his contention that the fact that the

statute of limitations may have expired with regard to a criminal charge is

not grounds for compelling a witness to testify when he has invoked his Fifth

Amendment privilege. See McFadden v. Reynolds, 11 A. 638 (Pa. 1887);

Commonwealth v. Lenart, 242 A.2d 259 (Pa. 1968) (plurality).

Upon our review, it appears the crux of Heffler’s argument is that once

he has invoked his Fifth Amendment privilege, he has no further burden to

prove that his answers may provide incriminating testimony. See Heffler’s

Brief at 18 (“The witness is not required to prove the hazard, because then

he or she would surrender the protection the privilege was designed to

protect.”). Further, he distinguishes a Commonwealth Court decision, cited

by the Velorics, which places the burden squarely on the witness to establish

“that he or she has a reasonable ground for asserting the privilege.”

McDonough v. Com., Dep't of Transp., Bureau of Driver Licensing, 18

A.2d 1258, 1261 (Pa. Commw. 1992). Heffler contends the McDonough

Court relied upon a 1911 Supreme Court decision “which cannot survive the

adoption of the federal standard” announced in Carrera, supra. Heffler’s

Brief at 19.

Our review of the relevant case law, however, confirms that Heffler

has the burden to demonstrate he has “reasonable cause to apprehend” a

“real danger of prosecution” should he be compelled to testify. Carrera,

supra, 227 A.2d at 629. As Heffler asserts, a witness is not “required to

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prove the hazard” since, in doing so, “he would be compelled to surrender

the very protection which the privilege is designed to guarantee.” Hoffman,

supra, 341 U.S. at 486. However, we interpret this passage in Hoffman to

mean the witness need not provide answers to the questions before the

trial court can determine whether or not the answers might be incriminating.

The Supreme Court has made clear:

The witness is not exonerated from answering merely because

he declares that in so doing he would incriminate himself – his

say-so does not of itself establish the hazard of incrimination. It

is for the court to say whether his silence is justified, and to

require him to answer if ‘it clearly appears to the court that he is

mistaken.’

Id. (citations omitted). Were we to accept Heffler’s contention, that the

witness asserting the privilege has no burden of proof, we would exonerate a

witness based solely on his “say-so.” Id. Rather, pursuant to Hoffman,

and its progeny, the final determination as to whether the privilege was

properly invoked lies with the trial court. As the Supreme Court explained in

United States v. Reynolds, 345 U.S. 1 (1953):

Indeed, in the earlier stages of judicial experience with the

problem, both extremes were advocated, some saying that the

bare assertion by the witness must be taken as conclusive, and

others saying that the witness should be required to reveal the

matter behind his claim of privilege to the judge for verification.

Neither extreme prevailed, and a sound formula of compromise

was developed. … There are differences in phraseology, but in

substance it is agreed that the court must be satisfied from all

the evidence and circumstances, and ‘from the implications of

the question, in the setting in which it is asked, that a

responsive answer to the question or an explanation of why it

cannot be answered might be dangerous because injurious

disclosure could result.’ If the court is so satisfied, the claim

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of the privilege will be accepted without requiring further

disclosure.

Id. at 8-9 (emphasis supplied). Therefore, a witness must demonstrate to

the court that he has “reasonable cause to apprehend danger from a direct

answer.” Hoffman, supra, 341 U.S. at 486.

Here, the trial court was not satisfied that Heffler’s responsive answers

might be incriminating. First, the court explained that the one obvious crime

with which Heffler could be charged was harassment, but that crime has a

two-year statute of limitations which had expired. See Trial Court Opinion,

2/20/2015, at 13. The court acknowledged there are several offenses, listed

in 42 Pa.C.S. § 5552(b), which are subject to a five-year statute of

limitations, but noted that Heffler failed to indicate which of these crimes

might be implicated by his proposed testimony. Indeed, our review of the

crimes listed in Section 5552(b) reveals that none apply to the facts alleged

in the complaint, save for the offense of unlawful use of a computer. See 42

Pa.C.S. § 5552(b);8 18 Pa.C.S. § 7611 (Unlawful Use of A Computer and

Other Computer Crimes). However, our review of the elements of that crime

reveals that it is not implicated by the acts described in the complaint. 9

____________________________________________

8

The crime of unlawful use of a computer is listed in Section 5552(b) as

“section 3933 (relating to unlawful use of a computer).” 42 Pa. C.S. §

5552(b). However, Section 3933 was repealed in 2002, and replaced by

Section 7611. See 2002, Dec. 16, P.L. 1953, No. 226, § 3 , effective in 60

days.

9

The crime of unlawful use of a computer, codified at 18 Pa.C.S. § 7611,

provides that a person commits the offense if he:

(Footnote Continued Next Page)

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Significantly, Heffler does not specify which crimes might be implicated

by the acts alleged in the complaint, and provides no analysis establishing

that his answers might support a charge of unlawful use of a computer as

delineated in 18 Pa.C.S. § 7611. While Heffler is not required to provide

potentially incriminating answers to the questions before asserting his Fifth

_______________________

(Footnote Continued)

(1) accesses or exceeds authorization to access, alters,

damages or destroys any computer, computer system,

computer network, computer software, computer program,

computer database, World Wide Web site or telecommunication

device or any part thereof with the intent to interrupt the normal

functioning of a person or to devise or execute any scheme or

artifice to defraud or deceive or control property or services by

means of false or fraudulent pretenses, representations or

promises;

(2) intentionally and without authorization accesses or

exceeds authorization to access, alters, interferes with

the operation of, damages or destroys any computer,

computer system, computer network, computer software,

computer program, computer database, World Wide Web site or

telecommunication device or any part thereof; or

(3) intentionally or knowingly and without authorization

gives or publishes a password, identifying code, personal

identification number or other confidential information about a

computer, computer system, computer network, computer

database, World Wide Web site or telecommunication device.

18 Pa.C.S. § 7611(a) (emphasis supplied). Here, the facts alleged in the

complaint assert that the Does sent two anonymous, defamatory e-mails to

Nancy Veloric. See Complaint, 7/19/2012, at ¶¶ 7-16. There are no

allegations that the Does accessed a computer or computer system, or

knowingly published a password. It is not clear that simply sending a

defamatory e-mail would constitute a violation of the statute.

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Amendment privilege, he must demonstrate “reasonable cause to apprehend

danger[.]” Hoffman, supra, 341 U.S. at 486. This, he failed to do.10

Heffler also challenges the trial court’s conclusion that he cannot

invoke his Fifth Amendment right when the statute of limitations has expired

with respect to the potential crime. He cites two decisions of the

Pennsylvania Supreme Court which hold the contrary. We conclude,

however, that the viability of these decisions is questionable at best.

In the 1887 decision, McFadden, supra, the plaintiff sued the

defendant for breach of a promise of marriage. The defense called a witness

to testify whether he had carnal knowledge of the plaintiff on a date two

years earlier. The witness declined to answer, invoking his Fifth Amendment

right, although he conceded that any prosecution would be barred by the

statute of limitations. The trial court declined to compel the witness to

testify, and on appeal, the Supreme Court affirmed. The Court explained:

We are not prepared to hold that, where a witness is asked upon

the stand to say whether he has committed a crime, he shall be

compelled to do so simply because he may, if a prosecution for

that crime is subsequently instituted against him, plead the

statute of limitations in defense. It seems to us he is protected

against [in]criminating himself in such a manner as to subject

himself even to a prosecution.

McFadden, supra, 11 A. at ___.

____________________________________________

10

We do not find that Heffler’s mere reference to the Velorics’ complaint, in

which the Velorics assert the Does’ actions were “criminally censorable, both

under State and Federal Law,” satisfies this burden. Heffler’s Brief at 26.

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The only appellate decision citing McFadden is Lenart, supra. In

that case, a two-justice plurality,11 rejected the Commonwealth’s argument

that a government witness should have been compelled to testify when the

prosecution of any implicated offense was barred by the statute of

limitations. Lenart, supra, 242 A.2d at 262. Relying on McFadden, the

plurality stated:

[T]he statute of limitations is not per se a bar to prosecution; it

is an affirmative defense which must be pleaded. Thus, if not

pleaded, the prosecution machinery will grind. The privilege

against self-incrimination is not limited to those cases where the

witness can be Convicted on the basis of his testimony. The

privilege protects him regardless as to whether or not the trial

would result in a conviction.

Id. The plurality declined to overrule McFadden, despite the

Commonwealth’s claim that the “overwhelmingly favored” rule was that the

privilege does not attach when the acts are no longer punishable by reason

of the expiration of the statute of limitations. Id. at 262-263.

However, in a concurring opinion, Justice O’Brien, joined by Justice

Roberts, declared he “would not at this time reaffirm the holding of

McFadden” which he described as “a case that has not withstood the test of

time.” Id. at 264 (O’Brien, J., Concurring). Rather, Justice O’Brien noted

“[i]f the witness cannot be convicted of the crime, the fact that he can be

____________________________________________

11

Justice Musmanno authored the Opinion of the Court, and was joined by

Chief Justice Bell. Justice O’Brien authored a Concurring Opinion, joined by

Justice Roberts. Justices Jones, Cohen and Eagen concurred in the result.

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prosecuted for it is of only academic interest.” Id. However, because he

found it was not “altogether clear … that conviction for any crimes revealed

by [the witness’s] testimony would be barred by the statute of limitations,”

Justice O’Brien concluded that the witness properly exercised his privilege.

Id.

Therefore, while McFadden has not been overruled, its continued

vitality is dubious. This is particularly true since in Brown v. Walker, 161

U.S. 591 (1896), the United States Supreme Court held that a witness may

not invoke his Fifth Amendment privilege when the offense with which he

could be charged is barred by the statute of limitations. The Court opined:

“[I]f a prosecution for a crime, concerning which the witness is interrogated,

is barred by the statute of limitations, he is compellable to answer.” Id. at

598. See also Stogner v. California, 539 U.S. 607, 620 (2003) (“[The

Supreme Court] has clearly stated that the Fifth Amendment’s privilege

against self-incrimination does not apply after the relevant limitations period

has expired.”), citing Brown, supra.

In light of the United States Supreme Court’s decision in Brown, we

decline to follow McFadden. Indeed, it is axiomatic that when the Fifth

Amendment privilege is invoked in state proceedings, it is governed by

federal standards. Hawthorne, supra; Carrera, supra. Accordingly, we

conclude the trial court properly considered the fact that the only obvious

crime with which Heffler could have been charged based upon his deposition

testimony – harassment - was barred by the statute of limitations.

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Moreover, we find that any other possible indictment based upon unspecified

state and/or federal crimes was improbable, and Heffler failed to

demonstrate “reasonable cause to apprehend danger from a direct

answer.” Hoffman, supra, 341 U.S. at 486 (emphasis supplied). Indeed,

we agree with the conclusion of the trial court that “Heffler’s refusal to

answer the Questions based upon the Fifth Amendment is not supported by

the record in this case as it is perfectly clear that there is no risk of self-

incrimination[.]” Trial Court Opinion, 2/20/2015, at 14.

Accordingly, we affirm the order of the trial court overruling Heffler’s

invocation of his Fifth Amendment privilege and directing Heffler to answer

ten deposition questions.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/30/2015

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