J. A33011/15

 

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JOHN GIOVINAZZO AND 

TAMMY GIOVINAZZO

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

v. :

:

SUSQUEHANNA BANK, KEVIN RIFE, 

RIFE & ASSOCIATES AND 

RIFE & ASSOCIATES MANAGEMENT 

CONSULTING LLC

:

:

:

:

:

APPEAL OF: SUSQUEHANNA BANK, : No. 3147 EDA 2014

:

 Appellant :

Appeal from the Order Entered September 28, 2014,

in the Court of Common Pleas of Philadelphia County

Civil Division at No. 00133 Feb. Term 2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: July 1, 2016

Susquehanna Bank (“the Bank”) appeals the order of the Court of 

Common Pleas of Philadelphia County that denied the Bank’s claim of 

privilege and ordered the Bank to produce without redaction all documents 

listed on Exhibits D and E of Plaintiff’s Motion to Compel the Deposition of 

Defendant Kevin Rife, the Corporate Designee of Rife Associates and the 

Corporate Designee of Susquehanna Bank and Motion to Compel Production 

of Documents Directed to Susquehanna Bank (“Motion”) filed by 

John Giovinazzo (“Giovinazzo”) and Tammy Giovinazzo (collectively, “the 

Giovinazzos”) within 15 days.
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On or about May 16, 2006, the Bank entered into a loan transaction 

with Davis-Giovinazzo Construction Company (“D-G Construction”) and the 

related companies of General Masonry Construction Company, Inc., 

Davis-Giovinazzo Masonry Company, Inc., and Tri-State Masonry 

Systems, Inc. (collectively, “the DG Obligors”). The Bank agreed to lend the 

DG Obligors the principal amount of $2,250,000. The DG Obligors executed 

and delivered a promissory note to the Bank dated May 16, 2006. Also, on 

May 16, 2006, the Bank entered into another loan transaction with the 

DC Obligors and extended a line of credit to them in the maximum principal 

amount of $6,000,000. The DG Obligors executed and delivered a 

promissory note to the Bank for this loan on May 16, 2006. The two loans 

were secured in part by a security agreement and UCC-1 financing 

statements that covered the accounts receivable of D-G Construction. 

Giovinazzo and other parties executed and delivered to the Bank a Guaranty 

and Suretyship Agreement, dated May 16, 2006, under which the payments 

of all sums due and owing from D-G Construction to the Bank were 

guaranteed. The line of credit amount was increased to $6,450,000.

In July 2007, D-G Construction overdrew the line of credit. At the 

request of the DG Obligors, the principal amount available under the line of 

credit was increased to $9,500,000. D-G Construction defaulted on its 

obligations to the Bank, so the Bank again increased the principal amount 

available under the line of credit. D-G Construction defaulted on its 
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obligations to the Bank when it failed to make required payments. 

Giovinazzo defaulted on his obligations under the Guaranty and Suretyship 

Agreement when he failed to cure D-G Construction’s default. On July 13, 

2011, the Bank entered a confessed judgment against Giovinazzo in the 

amount of $14,847,186.68 plus interest after May 19, 2011, in the amount 

of $1,725.98 per day. The judgment has not been satisfied.

In the fall of 2007, the Bank assumed control of D-G Construction and 

took over management of its operations. The Bank hired Kevin Rife (“Rife”), 

Rife & Associates, and Rife & Associates Management Consulting, LLC 

(collectively, “Rife Defendants”) to act as its consultants and help the Bank 

recover uncollected debt of D-G Construction and to operate 

D-G Construction. The Bank employed Giovinazzo to complete projects for 

D-G Construction and to assist in the collection of outstanding accounts 

receivable. As part of the consideration for this service, the Bank allegedly 

was supposed to relieve Giovinazzo of all obligations to the Bank.

In February 2012, the Pennsylvania Attorney General’s Office filed 

criminal charges against Giovinazzo personally because D-G Construction 

failed to pay Pennsylvania taxes during the time the Bank and Rife were in 

control of it. Giovinazzo was charged with four counts of theft by failure to 

make required disposition of funds. The Attorney General’s Office dismissed 

the charges against Giovinazzo on the basis that he was not responsible for 

the payment of taxes by D-G Construction. During the investigation, Rife 
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allegedly made false statements to the Pennsylvania Department of Revenue 

and/or the Attorney General’s Office regarding the Bank’s operation of 

D-G Construction and Giovinazzo’s role in it regarding the responsibility to 

pay taxes.

The Giovinazzos commenced an action in the trial court against the 

Bank and the Rife Defendants. Following preliminary objections by the Bank 

and Rife, the Giovinazzos’ amended complaint contained a claim for 

malicious prosecution as they alleged that Rife made false statements to 

Pennsylvania Department of Revenue agents in order to place blame for 

D-G Construction’s failure to pay taxes on Giovinazzo when, according to 

Giovinazzo, it was the Bank’s responsibility to pay the taxes. Giovinazzo 

further alleged that the Bank diverted money to itself that should have been 

used to pay the outstanding tax liability. Mrs. Giovinazzo also alleged a loss 

of consortium.

On March 26, 2014, the Giovinazzos filed a motion to compel the Bank 

to answer interrogatories and to respond to the Giovinazzos’ request for 

production of documents. Following a discovery hearing on April 7, 2014, 

the trial court, on April 14, 2014, granted the motion and ordered the Bank 

to provide full and complete responses to the interrogatories and full and 

complete production of documents for inspection. Thereafter, the 

Giovinazzos’ counsel inspected numerous records at the Bank’s counsel’s 

office.
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On June 27, 2014, the Bank provided to the Giovinazzos a redaction 

log and a privilege log. The redaction log contained 165 redacted emails 

related to the documents that were responsive to the April 14, 2014 order. 

The redaction log was included as Exhibit D of the Motion. The subjects of 

the emails included correspondence concerning litigation, correspondence 

concerning deposition, correspondence concerning legal strategy, 

correspondence concerning pleading, correspondence concerning arbitration, 

correspondence concerning status of operations, correspondence concerning 

loan, correspondence concerning bank policies, correspondence concerning 

collections, correspondence concerning financial matters, correspondence 

concerning union matters, and correspondence concerning project 

management. The log also listed the sender and the recipients of the 

emails. Rife was the sender of 57 of the emails and the recipient of 47. The 

emails were designated as privileged as either “attorney-client” or 

“work product” or both.

The privilege log identified 364 pages of withheld documents that 

contained 558 emails, letters, memoranda, spreadsheets, and other 

communications that were responsive to the April 14, 2014, order. The 

privilege log was included as Exhibit E of the Motion. Rife was the author of 

116 of the documents and the recipient of approximately 101. The 

documents were designated as privileged as either “attorney-client” or 

“work product” or both. 
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On July 17, 2014, the Giovinazzos filed the Motion after they received 

the logs. The Giovinazzos alleged:

3. The log lists non-privileged documents. The 

logs claim ‘work product and attorney-client 

privilege’ with respect to documents by and 

amongst Defendant Kevin Rife and Frank 

Correll, Esquire, and/or Anthony Tabasso, 

Esquire both of Klehr Harrison (who represents 

[the] Bank in this litigation). However, no 

such documents are privileged as Klehr 

Harrison never represented Kevin Rife nor Rife 

& Associates and indeed has never claimed to 

do so in this litigation.

4. Further, the logs in other entries list persons 

as being recipients of alleged privileged 

documents who also are or may not be persons 

to whom a privilege would apply, i.e. 

Albert Ciardi, Esquire, who upon information 

and belief, never represented any of the 

defendants in this matter and Annie Foody (a 

person whose identity is unknown to 

[Giovinazzos’] counsel).

5. Based on the foregoing, [Giovinazzos] assert 

that the late production of privilege logs and 

the nature of those logs exhibit bad faith on 

the part of [the] Bank.

Motion at 3-4 ¶¶3-5.

The Giovinazzos requested that the trial court order the Bank to 

produce without redaction all documents listed in Exhibits D and E of the 

Motion. Alternatively, the Giovinazzos requested that the trial court conduct 

an in camera examination of the documents to determine if the Bank 

asserted a valid privilege. At oral argument, the Giovinazzos’ counsel, 

Neil Jokelson, Esq., stated, “I’m requesting all the documents that either 
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were sent to or sent from Kevin Rife to Susquehanna Bank or Susquehanna 

Bank’s counsel.” (Notes of testimony, 7/28/14 at 5.)

The trial court granted the motion and ordered the Bank to produce 

without redaction all of the documents listed in Exhibits D and E or, 

alternatively, the Bank had the option to submit the documents to the Court 

for an in camera review to determine whether the asserted privilege for 

each item was valid.

On August 12, 2014, the Bank delivered the documents to the trial 

court. The Bank categorized the documents as: (i) communications 

between the Bank or its counsel and the Rife Defendants which were 

previously produced to the Giovinazzos as redacted subject to the 

attorney-client and/or work-product privileges, as (ii) communications 

between the Bank and its counsel and the Rife Defendants that were 

previously withheld from production to the Giovinazzos because the 

documents were subject to attorney-client and/or work-product privileges, 

and as (iii) documents prepared by the Rife defendants for the use of the 

Bank and its counsel that were previously withheld from the Giovinazzos 

because they were subject to the work-product privilege.

On September 28, 2014, the trial court denied the claim of privilege 

and ordered the Bank to produce all of the documents listed in Exhibits D 

and E of the motion for production of documents. The trial court reasoned:

Kevin Rife, who either sent or received the emails in 

question, was neither [the Bank’s] attorney nor the 
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attorney’s subordinate. He was a third-party. A 

party waives privilege when documents are shared 

with non privileged persons. [The Bank] waived any 

claim of attorney-client privilege when emails that it 

sent to its Counsel were sent to Mr. Rife. These 

emails were directly related to the management of 

[D-G Construction]. After in camera review, the 

Court concluded the emails are not attorney work 

product because they do not contain the mental 

impressions, conclusions, or opinions of the value or 

merit of a claim, defense, strategy, or litigation 

tactic. Accordingly, the Court properly ordered the 

category (i) and (ii) documents to be produced to 

[the Giovinazzos] without redactions.

[The Bank] produced redacted documents to 

the Court for in camera review asserting 

attorney-client privilege. These redacted documents 

are alleged to fit within category (ii).

No claimant of a testimonial privilege can be 

the final arbiter of his or her own claim. The trial 

court must make specific findings and rulings as to 

each claim of privilege. A benefit of in camera

review is that it “provides an essential check against 

the possibility that a privilege may be abused.” 

When the Court cannot determine what the 

document is or says, it cannot sustain a claim of 

privilege.

The purpose of in camera review is to 

determine whether such documents are what the 

objecting party claims and that the claimed privilege 

exists. [The Bank] failed to meet its burden with 

respect to claiming privilege on multiple documents 

because they were blacked out entirely and could not 

be reviewed. If the Court cannot perform the 

“essential check” for abuse of privilege during 

in camera review because documents have been 

redacted completely, then [the Bank] cannot prevail 

in the assertion of privilege of which it has the 

burden to demonstrate. Accordingly, the Court 

properly ordered the redacted documents to be 

produced to [the Giovinazzos] without redactions.
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The category “iii” documents that were 

withheld from [the Giovinazzos] are materials 

relating to [D-G Construction’s] finances prepared by 

the Rife Defendants for [the Bank]. [The Bank] 

claims privilege for these documents on the basis of 

attorney work product only, not attorney-client 

communications. Kevin Rife is not an attorney. The 

Rife Defendants deny that Kevin Rife was ever an 

agent of [the Bank]. There is no basis for a claim of 

attorney work product privilege when the creator of 

the document is not an attorney, not a subordinate 

of an attorney, and the substance of the documents 

contain no mental impressions, conclusions, or 

opinions of the value or merit of a claim, defense, 

strategy, or tactic.

Trial court opinion, 3/25/15 at 5-6 (footnotes omitted).

The Bank has raised the following issues before this court:

A. Did the trial court abuse its discretion when it 

compelled [the] Bank to produce to [the] 

Giovinazzo[s] all documents that had been 

withheld from production as privileged, without 

regard for whether the production of those 

documents had actually been requested?

B. Did the trial court err as a matter of law when 

it overruled valid claims of privilege and 

required [the] Bank to disclose attorney-client 

privileged and attorney-work product protected 

information?

The Bank’s brief at 4.

This court’s review of a discovery order is limited to a determination of 

whether the trial court committed an abuse of discretion. Gormley v. 

Edgar, 995 A.2d 1197 (Pa.Super. 2010). This court’s standard of review of 

questions of law is de novo, and its scope of review is plenary. Whether the 

attorney-client privilege or the work product doctrine precludes a document 
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or communication from disclosure is a question of law. St. Luke’s Hospital 

of Bethlehem v. Vivian, 99 A.3d 534 (Pa.Super. 2014).

In Custom Designs and Manufacturing Company v. SherwinWilliams Company, 39 A.3d 372, 376 (Pa.Super. 2012), this court 

described the application of attorney-client privilege:

In Pennsylvania, the attorney-client privilege 

operates in a two-way fashion to protect confidential 

client-to-attorney or attorney-to-client 

communications made for the purpose of obtaining 

or providing professional legal advice. Gillard v. 

AIG Ins. Co., 15 A.3d 44, 59 (Pa.2011); See 

42 Pa.C.S. §5928. In describing the purpose of the 

privilege, we have said: “The attorney-client 

privilege exists to foster a confidence between 

attorney and client that will lead to a trusting and 

open dialogue.” Gocial v. Independence Blue 

Cross, 827 A.2d 1216, 1222 (Pa.Super. 2003).

Pennsylvania law imposes a shifting burden of 

proof in disputes over disclosure of communications 

allegedly protected by attorney-client privilege. The 

party invoking a privilege must initially “set forth 

facts showing that the privilege has been properly 

invoked; then the burden shifts to the party seeking 

disclosure to set forth facts showing that disclosure 

will not violate the attorney-client privilege, e.g., 

because the privilege has been waived or because 

some exception applies.” Nationwide Mut. Ins. 

Co. v. Fleming, 924 1259, 1266 (Pa.Super. 2007) 

(citations omitted), aff’d, 605 Pa. 468, 992 A.2d 65 

(2010). Accordingly, “[i]f the party asserting the 

privilege does not produce sufficient facts to show 

that the privilege was properly invoked, then the 

burden never shifts to the other party, and the 

communication is not protected under attorney-client 

privilege.” Id. at 1267. 
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Four elements must be satisfied in order to 

invoke successfully the protections of attorney-client 

privilege:

1) The asserted holder of the privilege is or 

sought to become a client.

2) The person to whom the communication 

was made is a member of the bar of a 

court, or his subordinate.

3) The communication relates to a fact of 

which the attorney was informed by his 

client, without the presence of strangers, 

for the purpose of securing either an 

opinion of law, legal services or 

assistance in a legal matter, and not for 

the purpose of committing a crime or 

tort.

4) The privilege has been claimed and is not 

waived by the client.

Id. at 1264 (citations omitted).

The Bank asserts that the trial court abused its discretion when it 

ordered the Bank to produce copies of all the documents listed on Exhibits D 

and E, when the Giovinazzos did not expressly demand all the documents in 

Exhibits D and E of the Motion or in oral argument before the trial court and 

that some of these documents did not pertain to communications between 

the Bank and the Rife Defendants or between the Bank’s attorneys and the 

Rife Defendants.

First, a review of the record before this court reveals that the 

Giovinazzos did request that the Bank produce all of the documents listed in 
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Exhibits D and E in the Motion, although they did not make that same 

request in oral argument. 

Second, in its order that granted the motion, the trial court did not 

distinguish between the documents that were communications between the 

Bank and the Rife Defendants and any other documents listed on the 

exhibits for which the Bank claimed privilege. The order stated in pertinent 

part:

It is further ORDERED and DECREED that 

Susquehanna Bank, within fifteen (15) days of the 

date of this Order, is to produce, without redaction, 

all documents listed in Exhibits D and E or 

alternatively, Susquehanna Bank shall within that 

time frame submit to this Court for examination 

in camera of all documents listed on Exhibits D and E 

to allow this Court to determine if a valid privilege 

has been asserted. Failure to comply with this Order 

may result in the imposition of sanctions upon 

further application of the Court.

Trial court order, 7/28/14 at 1-2.

The Bank was ordered to either produce all of the documents listed on 

Exhibits D and E or produce all of the documents for an in camera review 

by the trial court. If the Bank believed that the scope of the discovery order 

was too broad, it could have asked the trial court to reconsider the scope of 

the order or to clarify the scope of the order. The Bank did not do so. 

Instead, the Bank submitted the documents to the trial court for its review 

with part or all of many of the documents redacted. Because the Bank 

provided some of the documents in redacted form, the trial court denied the 
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claim of privilege on the basis that it could not determine what the 

documents said, such that the Bank failed to meet its burden to prove that it 

was entitled to its claims of privilege. The trial court ordered the Bank to 

provide unredacted copies of the documents at the oral argument. (Notes of 

testimony, 7/28/14 at 9.) As the trial court stated in its opinion, the 

redactions defeated the purpose of an in camera review. Somewhat 

confusingly, the trial court does not identify a class of documents which did 

not include communications between the Bank and/or its attorneys and the 

Rife Defendants and in its opinion, referred only to the request for 

documents between the Bank and/or its attorneys and the Rife Defendants. 

The documents are not before this court. However, given the facts of this 

case, this court determines that the trial court did not abuse its discretion 

when it ordered the Bank to produce all of the documents listed in Exhibits D 

and E. 

The Bank next contends that the trial court erred as a matter of law 

when it overruled the privileges claimed by the Bank for communications 

between the Bank, the Bank’s attorneys, and the Rife Defendants, and 

between the Bank’s attorneys and the Rife Defendants. Once again, it is the 

Bank’s burden to prove that it is entitled to the privilege. In oral argument 

before the trial court, Rife’s counsel denied that the Rife Defendants had an 

agency relationship with the Bank or the Bank’s attorneys. (Notes of 

testimony, 7/28/14 at 7.) Further, the Bank denied an agency relationship 
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with the Rife Defendants in its answer to the amended complaint. (See 

answer and new matter to plaintiffs’ amended complaint, 1/23/14 at 2 ¶7.) 

The trial court determined that Rife was neither an attorney of the Bank nor 

a subordinate of the Bank’s attorney as required in Nationwide. Based on 

the record before this court, this court finds that the trial court did not abuse 

its discretion when it found that the documents involving Rife and the 

Rife Defendants were not privileged.

The Bank also contends that the trial court erred when it concluded 

that the communications by and between the Bank, the Rife Defendants, and 

the Bank’s attorneys should be produced in total because certain portions of 

those documents not subject to the review of the trial court were redacted 

when submitted on an in camera basis. Once again, the trial court ordered 

the Bank to produce all of the documents in Exhibits D and E in an 

unredacted form in order for the trial court to conduct its in camera review. 

When it failed to do so, it could not prove that it was entitled to the claimed 

privilege. Further, once these communications were shared with an outside 

third party, Rife, they were no longer subject to the attorney-client privilege. 

See Bagwell v. Pennsylvania Department of Education, 103 A.3d 409 

(Pa.Cmwlth. 2014).

The Bank also contends that the trial court erred when it declared that 

the emails submitted for in camera review did not qualify under the 

work-product doctrine because they did not contain the mental impressions, 
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conclusions, or opinions of the value or merit of a claim, defense, strategy, 

or litigation tactic. The Bank argues that each of the communications 

exchanged between the Bank, the Bank’s attorneys, and the Rife Defendants 

that were listed in Exhibits D and E as “work product” are shielded from 

production in discovery because these entities frequently analyzed claims 

and defenses and shared strategy and tactics as a result of the “turnaround” 

work being conducted.

The work-product doctrine is codified in Rule 4003.3 of the 

Pennsylvania Rules of Civil Procedure. This rule states in pertinent part:

Subject to the provisions of Rules 4003.4 and 

4003.5[1], a party may obtain discovery of any 

matter discoverable under Rule 4003.1 even though 

prepared in anticipation of litigation or trial by or for 

another party or by or for that other party’s 

representative, including his attorney . . . insurer or 

agent. The discovery shall not include disclosure of 

the mental impressions of a party’s attorney or his 

conclusions, opinions, memoranda, notes or 

summaries, legal research or legal theories. With 

respect to the representative of a party other than 

the party’s attorney, discovery shall not include 

disclosure of his mental impressions, conclusions, or 

opinions respecting the value or merit of a claim or 

defense or respecting strategy or tactics.

Pa.R.C.P. 4003.3.

The purpose of protecting work product from discovery is to shield “the 

mental processes of an attorney, providing a privileged area within which he 

can analyze and prepare his client’s case.” Lepley v. Lycoming County 

 

1 Rules 4003.4 and 4003.5 are inapplicable here.
J. A33011/15

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Court of Common Pleas, 393 A.2d 306, 310 (Pa. 1978), quoting United 

States v. Nobles, 422 U.S. 225, 238, (1975).

The Bank presented no evidence to support its claim that these 

documents were exempt from discovery as work product. The trial court 

concluded that these emails related to the management of D-G Construction 

and Giovinazzo’s employment with D-G Construction. The Bank’s argument 

does not persuade this court that the trial court abused its discretion.

The Bank further contends that the trial court erred as a matter of law 

when it categorically overruled privileges claimed for documents prepared by 

the Rife Defendants for the Bank’s attorneys under the work-product 

doctrine. While the attorney work-product privilege extends to the mental 

impressions, conclusions, or opinions respecting the value or merit of a claim 

or defense or respecting strategy or tactics including those of a party’s 

representative who is not an attorney, Rife was neither an attorney nor was 

he, according to the Bank, its agent. We find no abuse of discretion.2

Order affirmed.

 

2

Finally, the Bank contends that the trial court erred as a matter of law 

when it implicitly overruled all other privileges claimed in Exhibits D and E. 

The Bank asserts that these documents were never requested by the 

Giovinazzos but that they were required to produce all clearly privileged 

communications between the Bank and its attorneys with respect to the 

request and provision of legal advice and between the Bank’s attorneys 
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Judgment Entered.

JosephD.Seletyn,Esq.

Prothonotary

Date: 7/1/2016

 

concerning mental impressions and litigation strategies. This court has 

already addressed this issue.