[J-40-2018]

IN THE SUPREME COURT OF PENNSYLVANIA

 WESTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

IN RE: FORTIETH STATEWIDE 

INVESTIGATING GRAND JURY

APPEAL OF: DIOCESE OF 

HARRISBURG AND DIOCESE OF 

GREENSBURG

:

:

:

:

:

:

:

:

:

:

No. 45 WM 2017

Appeal from the Order of the 

Supervising Judge of the Fortieth 

Statewide Investigating Grand Jury 

entered on 6/15/17 at Allegheny County 

No. CP-02-MD-0000571-2016

ARGUED: May 15, 2018

Chief Justice Saylor delivers the Opinion of the Court, and Justice Baer 

also speaks for the Court, by way of concurrence.

OPINION

CHIEF JUSTICE SAYLOR DECIDED: AUGUST 21, 2018

This appeal concerns a challenge to the practice of requiring private attorneys

who may be privy to confidential information related to a grand jury investigation to 

commit to maintaining the secrecy of all information they may acquire regarding the 

grand jury.

The case involves the 40th Statewide Investigating Grand Jury, which was 

convened in 2016 per the Investigating Grand Jury Act.1 As relevant here, this statutory 

 

1 Act of Oct. 5, 1980, P.L. 693, No. 142, §216(a)(2) (as amended 42 Pa.C.S. §§4541-

4553).
[J-40-2018] - 2

regime limits the ability of participants in grand jury proceedings, other than witnesses, 

to disclose matters occurring before the grand jury. See 42 Pa.C.S. §4549(b). In the 

first instance, the enactment’s Section 4549(b) authorizes disclosure of such matters 

generally to “attorneys for the Commonwealth” for use in the performance of their 

duties. Id. Additionally, the attorneys for the Commonwealth, with the approval of the 

supervising judge, may reveal matters occurring before the grand jury to law 

enforcement or investigating agencies. Id. “Otherwise,” the ensuing provisions 

admonish, “a juror, attorney, interpreter, stenographer, operator of a recording device, 

or any typist who transcribes recorded testimony may disclose matters occurring before 

the grand jury only when so directed by the court.” Id. (emphasis added). Section 

4549(b) proceeds to require that “[a]ll such persons shall be sworn to secrecy,” on pain 

of contempt for violations. Id.

Under the authority of the 40th Statewide Investigating Grand Jury, subpoenas 

requiring the production of documents were recently issued to the Dioceses of 

Harrisburg and Greensburg (“Appellants” or the “Dioceses”). Their counsel requested a 

copy of the notice of submission that the Office of the Attorney General (the “OAG”) had 

provided to the supervising judge, the Honorable Norman A. Krumenacker, III. See 

generally 42 Pa.C.S. §4550 (delineating the notice-based procedure for the submission 

of an investigation to a grand jury).

The supervising judge replied that he would furnish a copy of this notice to 

counsel, but that counsel first would be required to sign and submit an entry-ofappearance form, which included the following oath or affirmation:

I swear or affirm that, under penalty of contempt, I will keep 

secret all that transpires in the Grand Jury room, all matters 

occurring before the Grand Jury, and all matters and 

information concerning this Grand Jury obtained in the 
[J-40-2018] - 3

course of the representation, except when authorized by law 

or permitted by the Court. 42 Pa.C.S.A. §4549(b).

These statements are made subject to the penalties of 18 

Pa.C.S. §4903 [(False swearing)].

Counsel declined to accept these terms, however, and Appellants lodged a joint 

motion to strike the non-disclosure provision from the entry-of-appearance form. They 

argued that the requirement of secrecy was not authorized by the Investigating Grand 

Jury Act, both as to the obligation being imposed upon counsel and, alternatively, in 

terms of the breadth of that duty.2

The Dioceses’ lead contention was that the secrecy requirement of Section 

4549(b) simply does not apply to private attorneys. They first posited that, “[b]y its 

terms,” Section 4549(b) applies only to persons who are “sworn to secrecy” -- i.e., those 

who are required in practice to sign an oath of secrecy -- such as “Commonwealth 

attorneys, grand jurors, stenographers, typists, and operators of recording equipment.” 

Brief in Support of the Dioceses’ Joint Motion to Strike in In re 40th Statewide 

Investigating Grand Jury, CP-02-MD-571-2016 (C.P. Allegeheny), at 4.3 

From this early stage in their presentation, Appellants began to substitute the 

term “Commonwealth attorneys” for the word “attorney” as it appears in Section 

4549(b)’s list of persons who must maintain secrecy. Their justification, at this 

 

2 Our present discussion encompasses consideration of some matters appearing in 

papers that have been filed under seal. Our treatment of such matters, however, is 

limited to legal contentions that overlap with the present briefing. 

3

In fact and as related above, Section 4549(b) delineates several categories of persons 

who must be sworn to secrecy (namely, “a juror, attorney, interpreter, stenographer, 

operator of a recording device, or any typist who transcribes recorded testimony”) and 

specifies that “[a]ll such persons shall be sworn to secrecy.” 42 Pa.C.S. §4549(b) 

(emphasis added). Accordingly, the statute does not render itself subordinate to its own 

implementation in practice, as the Dioceses initially portrayed. Rather, Section 4549(b) 

explicitly directs how that implementation is to proceed.
[J-40-2018] - 4

juncture -- based on the above line of reasoning -- was the contention that private 

attorneys “generally are not required to sign the oath of secrecy.” Id.; see also N.T., 

May 26, 2017, at 10-11 (reflecting the argument of Appellants’ counsel to the 

supervising judge as follows: “The fact that normally [private attorneys are] not required 

to execute the secrecy oath I think is an indicator, perhaps the biggest indicator, that 

there is a difference between those who are statutorily bound to keep . . . matters before 

the grand jury secret and those who are not bound to do so unless it’s specifically 

ordered by the court”). The Dioceses further opined, without offering supporting 

authority, that private attorneys are relieved from taking an oath of secrecy, because 

they are only in the presence of grand juries for a limited period of time during which 

their clients testify as witnesses. See Brief in Support of the Dioceses’ Joint Motion to 

Strike in In re 40th Statewide Investigating Grand Jury, CP-02-MD-571-2016, at 4.4

 

4 The Dioceses’ position that private attorneys are not required to take a secrecy oath --

which they carry into the present briefing -- was and is particularly confounding. In this 

regard, the distinction is quite tenuous between an “oath of secrecy” and the nondisclosure requirement contained within the entry-of-appearance form (which opens 

with the words, “I swear or affirm,” and otherwise binds attorneys to maintaining 

secrecy). Accord Brief for Appellee at 17 (positing, as to the relevant argument by 

Appellants, that “[t]he Dioceses cannot even be accused of putting the cart before the 

horse; they are putting the cart before the cart.”). Indeed, Appellants have supplied no 

substantive explanation to support their repeated suggestion that a commitment to nondisclosure subject to criminal sanctions is not either a secrecy oath unto itself or 

tantamount to one.

The Dioceses also refer to historical practices prior to 2013, the year in which the entryof-appearance form and associated non-disclosure requirement for private attorneys 

were introduced into grand jury practice. They have offered no evidence, however, to 

support their assumption that supervising judges in Pennsylvania had consistently 

interpreted Section 4549(b) as excluding private attorneys from the secrecy 

requirement, prior to the introduction of the entry-of-appearance form into grand jury 

practice. 
[J-40-2018] - 5

Appellants also deemed it significant that Section 4549(d) expressly provides that 

a client-witness is not prohibited from publicly disclosing his or her testimony except for 

cause shown in a hearing before the court. See id. §4549(d). Given the latitude

afforded to witnesses, the Dioceses protested that requiring a commitment to secrecy 

on the part of private attorneys creates an anomalous situation in which a client-witness 

is free to disclose his grand jury testimony, but his lawyer cannot act on his behalf to 

make such a disclosure, even where specifically authorized by the client-witness.

Additionally, Appellants noted that a subsection of Section 4549 is dedicated to 

addressing “[c]ounsel for witnesses.” 42 Pa.C.S. §4549(c). According to the Dioceses, 

had the General Assembly intended to forbid disclosures by private attorneys, the 

logical place at which to reposit such a prohibition was within this subsection.

In terms of the breadth of the non-disclosure requirement appearing within the 

entry-of-appearance form, Appellants highlighted that Section 4549(b) discusses 

secrecy solely in the context of “matters occurring before the Grand Jury.” 42 Pa.C.S. 

§4549(b). The form, on the other hand, prohibits disclosure of “all matters and 

information concerning this Grand Jury obtained in the course of the representation,” a 

constraint that the Dioceses depicted as being patently overbroad.5 

After entertaining written and oral presentations of the parties’ positions, the 

supervising judge denied relief on Appellants’ joint motion. See In re Fortieth Statewide 

Investigating Grand Jury, No. 571 M.D. 2016, Notice No. 1 (C.P. Allegheny June 15, 

 

5 Appellants also asserted that the non-disclosure requirement impaired their statutory 

right to effective counsel and improperly infringed upon their counsel’s First Amendment 

rights and entitlement to pursue the practice of law. In light of mootness considerations, 

see infra note 8, and our disposition, below -- in which we disapprove the nondisclosure provision of the entry-of-appearance form in its present incarnation -- we 

have elected to omit the additional issues from our recitation of the background, our 

discussion, and our ultimate order.
[J-40-2018] - 6

2017). At the outset, the supervising judge stressed the pervading necessity for 

secrecy in grand jury proceedings. See id. at 2 (citing In re Investigating Grand Jury of 

Phila. Cty. (Appeal of Phila. Rustproof Co.), 496 Pa. 452, 457-58, 437 A.2d 1128, 1130-

31 (1981)). He also explained that a grand jury proceeding is an investigative tool to 

determine if a prima facie case of criminal activity exists, rather than an adversarial 

hearing in which guilt or innocence of an accused is determined. See id. at 3 (citing 

Pirillo v. Takiff, 462 Pa. 511, 524, 341 A.2d 896, 902 (1975)).

The supervising judge then readily dispensed with the distinction drawn by 

Appellants between those persons who are required to take an oath of secrecy and 

attorneys. In this regard, he explained that the non-disclosure requirement in the entryof-appearance form serves simply as “a customized version of the general secrecy oath 

required by section 4549(b) . . ..” Id. at 6; see also supra notes 3 & 4. 

The supervising judge proceeded to reject the imposition of a limiting 

construction, as suggested by the Dioceses’ arguments, upon the word “attorney” as it 

appears in Section 4549(b)’s delineation of the categories of persons who are bound to 

non-disclosure. Invoking principles of statutory interpretation, he reasoned that words 

and phrases generally are to be construed according to their common usage. See 1 

Pa.C.S. §1903(a); see also Contolanza v. Lehigh Valley Dairies, Inc., 540 Pa. 398, 406, 

658 A.2d 336, 340 (1995) (“Absent a definition in the statute, statutes are presumed to 

employ words in their popular and plain everyday sense[.]”). Additionally, the 

supervising judge found that the broader interpretation was reinforced by Section 

4549(b)’s specific references to “attorneys for the Commonwealth,” a defined term 

under the Investigating Grand Jury Act, see 42 Pa.C.S. §4542, and “counsel for 

witnesses.” See In re Fortieth Statewide Investigating Grand Jury, No. 571 M.D. 2016, 

Notice No. 1, at 7 (“These references to specific subsets of attorneys demonstrate that 
[J-40-2018] - 7

the legislature knew the differences between the all-encompassing word ‘attorney’ and 

specific classifications within that broad category.”). 

Responding to Appellants’ focus on Section 4549(c)’s treatment of counsel for 

witnesses, the supervising judge explained that attorneys sometimes appear before 

grand juries for other purposes, such as -- and in the case of the Dioceses’ counsel -- to 

challenge or otherwise respond to a subpoena.6 In his judgment, this explanation 

supported the understanding that, when the Legislature referred to “attorney[s],” it 

intended to capture the field of attorneys at large (encompassing Commonwealth 

lawyers and private counsel representing witnesses or appearing before grand juries for 

any other reason).

Furthermore, the supervising judge noted, Rule of Criminal Procedure 231(C) 

provides that “[a]ll persons who are present while the grand jury is in session shall be 

identified in the record, shall be sworn to secrecy as provided in these rules, and shall 

not disclose any information pertaining to the grand jury except as provided by law.” 

Pa.R.Crim.P. 231(C) (emphasis added). He reasoned that this rule serves as an 

independent basis supporting a non-disclosure requirement for attorneys. 

In terms of the breadth of the non-disclosure requirement appearing in the entryof-appearance form, the supervising judge indicated:

Counsel [for the Dioceses] is correct that the nondisclosure/secrecy language would prevent them from 

discussing anything learned in the grand jury setting with 

third parties or in any way disclosing what is learned during 

representation before the grand jury with those other than 

their clients. This limitation is necessary to preserve the 

integrity of the grand jury investigation and ensure that no 

 

6

In this respect, the supervising judge discussed the concept of “appearance” in its 

broader, legal sense, reaching beyond an in-person, physical appearance. 
[J-40-2018] - 8

persons are able to influence potential witnesses, alter 

evidence, or escape indictment if issued.

In re Fortieth Statewide Investigating Grand Jury, No. 571 M.D. 2016, Notice No. 1, at 

10 (referencing some of the policy justifications for secrecy as related in In re 

Investigating Grand Jury of Philadelphia County, 496 Pa. at 457-58, 437 A.2d at 1130-

31).

Finally, the supervising judge laid the groundwork for a permissive appeal by 

expressing the opinion that his order involved a controlling question of law to which 

there is a substantial ground for difference of opinion, and that an immediate appeal 

might materially advance the ultimate termination of the matter. See 42 Pa.C.S. 

§702(b). 

Appellants filed the present petition for review pursuant to Rule of Appellate 

Procedure 3331 seeking both permission to appeal and taking the position, 

alternatively, that they were possessed with a right to an immediate, interlocutory 

appeal as of right. On the permissive track, this Court agreed to consider the issues 

presented upon full briefing and oral argument from the parties.7

The issue that we consider here involves statutory interpretation and analysis of 

our own procedural rules, over which our review is plenary, and we proceed to apply 

conventional interpretive principles. See generally Norfolk S. Ry. Co. v. PUC, 621 Pa. 

312, 323, 328, 77 A.3d 619, 626, 629 (2013); Pa.R.Crim.P. 101(C).8 

 

7

In terms of the asserted right to appeal on an interlocutory basis, Appellants 

contended that the supervising judge’s order is a collateral order. See Pa.R.A.P. 313(a) 

(“An appeal may be taken as of right from a collateral order of an administrative agency 

or lower court.”). However, because we find this matter to be of substantial public 

importance and permission to appeal to be warranted, we need not consider whether 

the matter could otherwise have been presented as of right.

8 We note that the present appeal bears hallmarks of a moot controversy. First, the 

supervising judge has confirmed that he did, at some point, provide Appellants’ counsel 

(continued...)
[J-40-2018] - 9

Presently, Appellants maintain that Section 4549(b) does not require a secrecy 

oath on the part of private attorneys. Continuing to assert that private counsel are not 

sworn to secrecy, the Dioceses proceed to dismiss the supervising judge’s observation 

that the non-disclosure requirement contained within the entry-of-appearance form 

serves as a secrecy oath. In this regard, Appellants treat the judge’s explanation as if it 

had been interposed by the jurist as a direct effort to interpret the statute rather than as 

a response to the Dioceses’ own contentions. See Brief for Appellants at 26 (claiming 

that the supervising judge’s equivalency observation “simply begs the question,” since 

“[i]f private counsel are not required to sign the secrecy oath pursuant to Section 

4549(b), which the court below acknowledged that they were not, then the fact that the 

 

(...continued)

with the notice of submission that gave rise to their joint motion to strike. Moreover, the 

tenure of the 40th Statewide Investigating Grand Jury has expired, and a great deal of 

public information has been released revealing the subject matter of its work. See, e.g., 

In re 40th Statewide Investigating Grand Jury, No. 571 M.D. 2016, slip op. at 9 (C.P. 

Allegheny June 5, 2018) (describing “two years of investigation into the Dioceses 

related to allegations of child sexual abuse, failure to make a mandatory report, acts 

endangering the welfare of children, and obstruction of justice by individuals associated 

with the Roman Catholic Church, local public officials, and community leaders”). 

Nevertheless, we believe that the lead issue presented by the Dioceses is of sufficient 

public importance to justify its timely, final resolution in spite of any concerns with the 

technical mootness of the case. See Pap's A.M. v. City of Erie, 571 Pa. 375, 391, 812 

A.2d 591, 600–01 (2002) (alluding to the great-public-importance exception to the 

mootness doctrine, particularly in light of a material lack of clarity in governing law).

Furthermore, this Court has broad supervisory authority in grand jury matters. See, 

e.g., Pa.R.A.P. 3331, Note (explaining that the provisions for review of special 

prosecutions or investigations generally provide the framework for implementing such 

supervision by this Court). 
[J-40-2018] - 10

Non-Disclosure Requirement is a tailored version of the oath does not mean that it is 

authorized by the Act.”).9

As to the historical practice, Appellants assert that the Office of the Attorney 

General had, for several decades prior to when the current entry-of-appearance form 

came into being, interpreted the word “attorney,” in Section 4549(b)’s delineation of 

those subject to secrecy, as meaning only an attorney for the Commonwealth.10

In this vein, and focusing on Section 4549(b)’s terms, Appellants stress that the 

statute twice refers to “attorneys for the Commonwealth” before its treatment of 

“attorney[s].” 42 Pa.C.S. §4549(b). According to the Dioceses, the latter should thus be 

construed to refer back to the former. As supportive authority, Appellants reference the 

principle of statutory construction counseling that “”words and phrases must be viewed 

‘not . . . in isolation, but . . . with reference to the context in which they appear.’” 

Scungio Borst & Assocs. v. 410 Shurs Lane Developers, LLC, 636 Pa. 621, 631-32, 146 

A.3d 232, 238 (2016) (quoting Meyer v. Community College of Beaver Cty, 625 Pa. 563, 

574, 93 A.3d 806, 813 (2014)).11

 

9 Contrary to Appellants’ portrayal, the supervising judge’s actual interpretive efforts, as 

related above, focus closely on the terms of the governing statute and applicable 

interpretive principles. Again, it is the Dioceses’ continuing characterization of the nondisclosure requirement of the entry-of-appearance form as something other than a 

secrecy oath that fosters confusion.

10 The OAG replies, correctly, that it is not the source of authority for requirements 

imposed on counsel. See Brief for Appellee at 22. Rather, what is required is provided 

in the Investigating Grand Jury Act, as enforced by supervising judges in the first 

instance. Moreover, we have previously discussed the absence of support attending 

the Dioceses’ historical arguments. See supra note 4.

11 Appellants also claim that their position is bolstered by the axiom that “[g]eneral 

words shall be construed to take their meanings and be restricted by preceding 

particular words.” 1 Pa.C.S. §1903(b). However, this principle of ejusdem generis

generally pertains where general words follow the enumeration of particular classes of 

(continued...)
[J-40-2018] - 11

The Dioceses also continue to highlight Section 4549(c)’s treatment of counsel 

for witnesses. See, e.g., Brief for Appellants at 25 ([W]hen the drafters of Section 4549 

wanted to refer to private counsel, they knew precisely how to do it and did not simply 

use the word ‘attorney’”). “Tellingly,” Appellants assert, Section 4549(c) does not 

include any prohibition on disclosure by counsel for witnesses. Id. at 25-26.12 

Furthermore, Appellants retain their focus upon the incongruity involved in disabling 

counsel from making disclosures that client-witnesses may otherwise make of their own 

accord. Accord Brief for Amicus Pa. Ass’n of Crim. Def. Lawyers at 21-22 (“It makes no 

sense that an attorney for a witness would be gagged in all cases regardless of need 

but a witness would be free to discuss his or her testimony in all cases unless the court 

finds good cause after a hearing.”).

Regarding Rule of Criminal Procedure 231(C), the Dioceses stress that the rule 

applies only to “persons who are to be present while the grand jury is in session.” 

Pa.R.Crim.P. 231(C) (emphasis added). Therefore, Appellants reason, any secrecy 

obligation should attach only to information that counsel learned as a result of being at 

the actual location of a grand jury while it is in session. Conversely, the Dioceses 

 

(...continued)

persons or things. See, e.g., Indep. Oil & Gas Ass'n of Pennsylvania v. Bd. of 

Assessment Appeals of Fayette Cty., 572 Pa. 240, 246, 814 A.2d 180, 184 (2002)

(quoting McClellan v. Health Maint. Org. of Pa., 546 Pa. 463, 473, 686 A.2d 801, 806 

(1996)). In our judgment, it has no application in the present circumstances, where the 

Legislature has twice used a defined term when rendering discrete authority relative to 

disclosure by and to “attorneys for the Commonwealth,” and then utilized what appears 

to be a broader generic term, i.e., “attorney[s]” when imposing a general prohibition 

against other disclosures.

12 In this line of argumentation, Appellants downplay the statute’s treatment of 

disclosure of matters occurring before grand juries as a subject unto itself in the 

preceding subsection, i.e., Section 4549(b) (entitled “Disclosure of proceedings by 

participants other than witnesses”).
[J-40-2018] - 12

argue, the rule does not support the broader commitment to secrecy contained in the 

entry-of-appearance form’s non-disclosure requirement, pertaining to “all matters 

occurring before the Grand Jury, and all matters and information concerning this Grand 

Jury obtained in the course of the representation.”

In this respect, and more broadly, Appellants maintain that the non-disclosure 

requirement is patently overbroad. For example, they observe that, per that 

requirement, secrecy would presumably attach to:

(i) documents produced by [counsel’s] own client in 

response to a grand jury subpoena and the information that 

counsel learns from these documents; (ii) information that 

counsel obtains from discussions with representatives of the 

client; and (iii) information that counsel obtains from third

parties outside of the Grand Jury room.

Brief for Appellants at 29. Accordingly, Appellants ask, at a minimum, for this Court to 

curtail the expansive sweep of the non-disclosure requirement.

The OAG, for its part, defends the supervising judge’s determination and 

reasoning.

I. Secrecy as Applied to Private Attorneys

Upon review, we agree with the supervising judge that private counsel are 

“attorney[s]” and are thus explicitly made subject to the general requirement of secrecy 

by Section 4549(b). Significantly, a number of Appellants’ arguments disregard or 

downplay relevant considerations as explained throughout our development of the 

background. See supra notes 3-4 & 9-12.

In our judgment, moreover, nothing on the face of the statute suggests that the 

Court should attribute to the word “attorney[s]” anything other than its ordinary broad 

meaning, i.e., those who are licensed to practice law. See 1 Pa.C.S. §1903(a). Along 

these lines, we are not persuaded by Appellants’ argument that the Legislature’s use of 
[J-40-2018] - 13

the defined term “attorneys for the Commonwealth” twice previously when establishing 

disclosure protocols specific to that subset of lawyers signifies that the subsequent use 

of the word “attorney[s]” in promulgating the general rule of non-disclosure was also 

meant to refer only to that subset. In this regard, it is significant that each of the three 

specifications by the Legislature -- two directed to “attorneys for the Commonwealth” 

and one to “attorney[s]” -- has a discrete substantive purpose. Accord In re Fortieth 

Statewide Investigating Grand Jury, No. 571 M.D. 2016, Notice No. 1, at 7 (“These 

references to specific subsets of attorneys demonstrate that the legislature knew the 

differences between the all-encompassing word ‘attorney’ and specific classifications 

within that broad category.”).13 In these circumstances, we find the plain language of 

the statute to be clear enough. See generally Commonwealth v. Derhammer, ___ Pa. 

___, ___, 173 A.3d 723, 729 (2017) (explaining that the courts are not authorized to 

insert words into a statute).14 

Notably, as the supervising judge also related, this Court has stressed the 

importance of secrecy associated with grand jury proceedings. See, e.g., Investigating 

Grand Jury of Phila. Cty., 496 Pa. at 457-58, 437 A.2d at 1130-31. In such a setting, it 

seems relatively straightforward that the Legislature would have wished to cast a wide 

 

13 The OAG also correctly highlights that, each time that the Investigating Grand Jury 

Act refers to a district attorney, the Attorney General, or a designee of either, and unless 

a reference to a particular official is necessary, the enactment specifically employs the 

term “attorney for the Commonwealth.” See Brief for Appellee at 14-15 (citing 42 

Pa.C.S. §§4543(b), 4546(b) & (c), 4547, 4548(a), 4549(a)-(c), 4550(a) & (b), 4551(a) & 

(e), and 4552(c)). 

14 We have no doubt that the Legislature, to minimize cumbersomeness, may 

sometimes employ shorthand references to terminology previously utilized in a statute. 

As related above, however, we conclude that the present context is not one in which it 

would be appropriate to assume that it did so, given the material substantive import of 

the usage.
[J-40-2018] - 14

net, among those present during grand jury proceedings, in imposing a requirement of 

non-disclosure.15

The Dioceses also highlight the seeming incongruity of a client-witness being 

permitted to disclose his or her testimony but his or her attorney being precluded from 

doing the same. To the extent that this concern is an argument that the Legislature 

used the word “attorney,” as it appears in the penultimate sentence of Section 4549(b), 

to mean only “attorney for the Commonwealth,” we disagree. First, whatever its appeal 

in terms of policy, this argument is insufficient to overcome the plain language of the 

statute. See 1 Pa.C.S. §1921(b) (“When the words of a statute are clear and free from 

all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its 

spirit.”); see also Derhammer, ___ Pa. at ___, 173 A.3d at 729.

Second, the secrecy obligation concerning “matters occurring before the grand 

jury” imposed by Section 4549(b) is plainly broader than a witness’s disclosure of his or 

her own testimony permitted by Section 4549(d). Such matters subsume a range of 

considerations beyond the mere content of a client-witness’s testimony, including 

comments by a supervising judge or the attorney for the Commonwealth made before 

the grand jury and evidence which may be proffered or discussed during a witness’s 

testimony.16 While we realize that this observation does not wholly discount the 

 

15 In this respect, as the supervising judge and the OAG emphasize, Rule of Criminal 

Procedure 231(C) is consistent. See Pa.R.Crim.P. 231(C) (reflecting that a secrecy 

oath is to be administered to “[a]ll persons who are to be present while the grand jury is 

in session”).

The overbreadth issue, as it relates to attorneys -- such as Appellants’ counsel -- who 

have not made a physical appearance before the grand jury, is addressed in Part II of 

this opinion, below.

16 Justice Donohue criticizes the above observations as unnecessary to the disposition 

of this case. See Concurring and Dissenting Opinion, slip op. at 8-9. From our point of 

(continued...)
[J-40-2018] - 15

Dioceses’ policy-based concern, it is offered here in support of our view that 

confidentiality must be viewed in the larger perspective.

Third, and in any event, we do not read Section 4549 as a whole to preclude 

private attorneys from disclosing that which their clients are plainly permitted to 

disclose, particularly given that such attorneys serve in a representational capacity 

relative to their clients. While we conclude that lawyers who are privy to grand jury 

proceedings are generally to be sworn to secrecy under the applicable statute -- and 

that an appropriately crafted entry-of-appearance form may be used to accomplish this 

function -- we do not believe that the Legislature intended such confidentiality to extend 

 

(...continued)

view, however, they are analytically related to the matter at hand and lend support to 

our material reasoning. Certainly, there could be no rational argument that “matters 

occurring before the grand jury” could concern only a particular witness’s testimony. 

Indeed, Justice Donohue herself makes the point that “Section 4549(d)’s command that 

‘no witness shall be prohibited from disclosing his testimony’ must be understood as a 

narrow exception to a broader secrecy requirement.” Concurring and Dissenting 

Opinion, slip op. at 5 n.3.

Thus, Justice Donohue’s concern, as it applies to the text above, appears to be more 

with the examples that we have provided (comments of a supervising judge or the 

attorney from the Commonwealth and evidence which may be presented during a 

witness’s testimony) than with the proposition they are offered to support. But those 

examples are relatively straightforward areas of concern that can be essential to the 

protection of secrecy and the vindication of the policy goals that Justice Donohue’s 

opinion develops at length. See id. at 4-5 (citing Investigating Grand Jury of Phila. Cty., 

496 Pa. at 458, 437 A.2d at 1130-31). To the degree that Justice Donohue’s concern is 

that the examples are not clear cut (because “comments” by a supervising judge or an 

attorney for the Commonwealth may sometimes overlap with witness testimony, as may 

“evidence” with which a witness is presented, see id. at 8 n.7), our response is that we 

intend the examples to evoke scenarios in which the witness’s testimony is, in fact,

analytically distinct from the comments or evidence seen or heard in the grand jury 

room.

Notably, the necessity to distinguish between witness testimony and other matters 

arises directly from the governing statute. See 42 Pa.C.S. §4549(d).
[J-40-2018] - 16

in full measure to that which is not otherwise intended to be held in absolute secrecy, 

i.e., the testimony of client-witnesses. See 42 Pa.C.S. §4549(d).17 With respect to such 

testimony, attorneys should generally be free to act on behalf of their clients in 

advancing their material interests, subject only to overriding considerations (including, of 

course, the Rules of Professional Conduct and, in the grand jury setting, the necessity 

for secrecy when protection is otherwise maintained, see id.). 

In sum, we do not read Section 4549(b) as preventing an attorney -- with the 

explicit, knowing, voluntary, and informed consent of a client-witness -- from disclosing 

the content of the client’s own testimony, when the client is otherwise free to do so of 

his or her own accord. Otherwise, however, we hold that Section 4549(b) 

straightforwardly forbids attorneys -- including private attorneys -- from revealing 

matters occurring before an investigating grand jury, absent permission from the 

supervising judge.

Accordingly, to the extent that the entry-of-appearance form remains the vehicle 

by which private attorneys are sworn to secrecy, we exercise our supervisory authority 

to require that the following statement be appended to it: “I understand that -- with the 

explicit, knowing, voluntary, and informed consent of my client or clients, and absent a 

specific prohibition by a supervising judge or circumstances implicating prohibitions 

arising from the Rules of Professional Conduct -- I may disclose the content of a client-

 

17 In this regard, we observe that this Court is charged with the regulation of attorneys in 

Pennsylvania. See PA. CONST., art. V §10(c). Although our decision here represents an 

exercise in statutory interpretation, the constitutional allocation to the Court of the power 

to regulate attorneys would likely have raised significant questions had the Legislature 

decided explicitly to bar attorneys from acting on behalf of their client-witnesses to 

disclose that which the latter are otherwise free to disclose of their own accord. Cf. 1 

Pa.C.S. § 1922(3) (articulating presumption that “General Assembly does not intend to 

violate the Constitution of the United States or of this Commonwealth”).
[J-40-2018] - 17

witness’s own testimony precisely to the extent that the client-witness may do so under 

applicable law.”18

II. Overbreadth

As to the issue of overbreadth, Appellants have correctly related that the terms of 

the non-disclosure requirement, as it appears on the entry-of-appearance form, exceed 

the secrecy requirements of the Investigating Grand Jury Act. See 42 Pa.C.S. §4549(b) 

(requiring non-disclosure only of “matters occurring before the grand jury”). See 

generally BARBARA J. VAN ARSDALE, ET AL., 9 FED. PROC., L.ED. §22:794 (2018) (“[T]he 

general rule of secrecy does not make everything connected with the grand jury’s 

investigation somehow untouchable.”). Furthermore, we agree with the Dioceses that a 

proscription against disclosure of “all matters and information concerning this Grand 

Jury obtained in the course of the representation” -- applied generally across the field of 

all lawyers representing grand jury witnesses or who may otherwise become privy to a 

document or information otherwise held in confidence in the grand jury setting --

represents too great an impingement on counsel’s ability to effectively represent their 

clients.19

 

18 We realize that our opinion in this case exceeds the facts and circumstances before 

the Court, since Appellants’ counsel are not attorneys for a client-witness (and Justice 

Donohue is quite correct to recognize that by “client-witness” we refer to a client 

presenting oral testimony before a grand jury, see Concurring Opinion, slip op.at 3 n.2). 

Nevertheless, this case has naturally segued into a discussion of the requirements as 

they pertain to attorneys for client-witnesses; the treatment of such attorneys is a matter 

of substantial public importance; and, in any event, we rely upon our supervisory 

responsibilities in grand jury matters. See supra note 8.

19 As Appellants relate, the prohibition facially extends to a wide range of information 

that is not otherwise confidential in the first instance. Additionally, read literally, the 

requirement would prevent lawyers from even discussing confidential information with 

their own clients, albeit that both the supervising judge and the OAG recognize that 

(continued...)
[J-40-2018] - 18

Accordingly, again per our supervisory prerogative, we will require another 

modification to the entry-of-appearance form, to the extent that it continues to serve as 

a vehicle to administer a secrecy oath to private attorneys. Specifically, the 

commitment to secrecy for “all matters and information concerning this Grand Jury 

obtained in the course of the representation” is to be removed and the syntax of the 

prior clauses should be adjusted, so that attorneys are bound to keep secret “all that 

transpires in the Grand Jury room and all matters occurring before the Grand Jury, 

except when disclosure is authorized by law or permitted by the Court.”20

In concluding our treatment of the overbreadth issue, we note that the General 

Assembly has not provided a definition of the phrase “matters occurring before the 

grand jury.” 42 Pa.C.S. §4549(b). Plainly, as the entry-of-appearance form suggests, 

and consistent with a wide body of federal decisional law, the term should be 

understood to reach beyond only what actually transpires in a grand jury room. See, 

e.g., In re Twenty-Fourth Statewide Investigating Grand Jury, 589 Pa. 89, 107, 907 A.2d 

505, 516 (Pa. 2006) (permitting disclosure of a notice of submission in the grand jury 

context, while implicitly recognizing that grand jury secrecy extends to confidential 

submissions to the court).21 See generally WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY 

 

(...continued)

such a reading is untenable. See In re Fortieth Statewide Investigating Grand Jury, No. 

571 M.D. 2016, Notice No. 1, at 10; Brief for Appellee at 33 (“[A]n attorney may discuss 

with a client matters occurring before a grand jury without violating grand jury secrecy.”).

20 To the extent that Criminal Procedural Rule 231(C) can be read to sweep more 

broadly in its requirement of non-disclosure of “any information pertaining to the grand 

jury,” Pa.R.Crim.P. 231(C), we direct that it should be construed to align with the 

material provisions of the Investigating Grand Jury Act. Additionally, we intend to 

invoke the rulemaking process to effectuate a clarifying amendment.

21 Contrary to Justice Donohue’s suggestion, see Concurring and Dissenting Opinion, 

slip op. at 8-9, we do not find it to be necessary or useful to refrain from recognizing 

(continued...)
[J-40-2018] - 19

J. KING & ORIN S. KERR, 3 CRIM. PROC. §8.5(c) (4th ed. 2017) (“The first lesson of the 

federal precedent is that the phrase ‘matter occurring before the grand jury’ is a term of 

art, not to be construed literally as encompassing only events that have taken place 

before the grand jury.”). Indeed, there is no dispute here that a notice of submission 

contains a type of information that is subject to confidentiality in and of itself. Accord In 

re Twenty-Fourth Statewide Investigating Grand Jury, 589 Pa. at 107, 907 A.2d at 516. 

Given, however, that the Dioceses’ challenge is focused largely on whether their 

counsel is a person subject to the a grand jury secrecy oath in the first instance and 

upon the broader sweep of secrecy as reflected on the current entry-of-appearance 

form, this case does not present a suitable vehicle to offer additional clarification of the 

statutory phrase “all matters occurring before the grand jury.”22

 

(...continued)

what is evident from prior decisions and in grand jury practice generally, and which 

derives from the essential vindication of the policy goals underlying the maintenance of 

grand jury secrecy, i.e., that to be effective, secrecy must extend to some range of 

matters beyond only what happens before the grand jury in a grand jury room.

22 This opinion is also not focused on special provisions for confidentiality outside the 

range of ordinary grand jury secrecy, such as the issuance by supervising judges of 

what are colloquially referred to as “gag orders.” Moreover, Appellants do not challenge 

the authority of a supervising judge to issue such orders where warranted in discrete 

instances. See, e.g., Brief for Appellant at 7 (depicting the procedure whereby, 

“[n]ormally, imposition of . . . a gag order” is preceded by “a predicate show-cause 

hearing and a formal court order”). Accordingly, nothing here should be read as 

restricting a supervising judge’s ability to provide for confidentiality, where warranted, in 

discrete matters on the part of either those otherwise subject to secrecy obligations 

under the Investigating Grand Jury Act or grand jury witnesses. See 42 Pa.C.S. 

§4549(b) (providing for disclosures of matters occurring before the grand jury by those 

bound to secrecy, other than as expressly provided in the enactment, “only when so 

directed by the court”); id. §4549(d) (prescribing that grand jury witnesses may be 

prohibited from disclosing their testimony only upon “cause shown in a hearing before 

the supervising judge”).
[J-40-2018] - 20

III. Common Interest and Joint Defense Agreements

Both parties also focus considerable attention in their briefs on common interest 

and joint defense agreements, a subject on which the supervising judge commented as 

well.

The Dioceses have argued that the non-disclosure requirement, as it appears on 

the current entry-of-appearance form, inordinately restricts the essential sharing of 

information among counsel for persons or entities that may become involved with a 

grand jury investigation, effectively precluding any and all coordination. See, e.g., Brief 

for Appellants at 7 (“[T]he avowed purpose of the Non-Disclosure Requirement is to gut 

the common interest and joint defense privileges maintained between counsel and 

clients.”). Appellants explain that common interest and joint defense agreements are 

properly used by attorneys to facilitate such coordination, as they give rise to an 

extension of the attorney-client privilege, thus protecting communications among 

attorneys representing different parties or among multiple parties represented by a 

single attorney. See id. at 32 (citing KEVIN P. ALLEN, THE ATTORNEY-CLIENT PRIVILEGE 

AND WORK-PRODUCT DOCTRINE IN PENNSYLVANIA 80-82 (PBI Press 5th ed. 2016)). In 

other words, the common interest and joint defense privileges function as an exception 

to the general rule that disclosure of information to third parties constitutes a waiver of 

the attorney-client privilege. See In re Condemnation by City of Phila., 981 A.2d 391, 

396 (Pa. Cmwlth. 2009).

The supervising judge, however, took the position that there simply is no need for 

common interest or joint defense agreements relative to a grand jury investigation, since 

such an investigation is not a criminal prosecution. In re Fortieth Statewide 

Investigating Grand Jury, No. 571 M.D. 2016, Notice No. 1, at 10-11. In this respect, we 

distance ourselves from the supervising judge’s view. As the Attorney General 
[J-40-2018] - 21

concedes, federal courts recognize that the common interest and joint defense 

privileges extend into the grand jury setting, see Brief for Appellee at 24 (citing In re 

Qwest Communications Int’l, Inc., 450 F.3d 1179, 1195 (10th Cir. 2006)), and we have 

no reason to conclude those privileges should be denied to those involved with grand 

jury proceedings in Pennsylvania.23 

Finally, we observe that our curtailment of the scope of the secrecy obligation 

assumed by attorneys in the grand jury setting ameliorates -- but does not eliminate --

the concerns that the Dioceses raise about information sharing among counsel. More 

particularly, relief from the prohibition against counsel’s disclosure of “all matters and 

information concerning this Grand Jury obtained in the course of the representation,” 

see supra Part II, opens a wider field of information to disclosure among participants in 

a common interest arrangement. Nevertheless, we caution that Appellants have cited 

no authority for the proposition that a common interest or joint defense agreement 

relieves counsel from grand jury secrecy requirements that do pertain, and nothing in 

our opinion should be read as affording such relief.24 Accordingly, and again in the 

 

23 Significantly, while certainly an investigation is not a prosecution, potential criminal 

exposure can occur long before the filing of charges, and indeed, may arise during the 

actual course of grand jury proceedings. Accordingly, counsel for those who have 

involvement with such proceedings should be permitted to access the range of 

conventional tools that would otherwise be available at law, so long as there is no 

conflict with overarching policies (such as secrecy where it pertains) discrete to the 

grand jury context.

24 As noted above, we do not address Appellants’ assertions that the non-disclosure 

requirement imposed by the entry-of-appearance form at issue here impaired their 

statutory right to effective counsel and improperly infringed their counsel’s First 

Amendment rights and entitlement to pursue the practice of law. See supra note 5. 

Again, we refrain from doing so, in part because our decision to require material 

modifications to the form alters central predicates of the present argumentation 

pertaining to these additional claims.
[J-40-2018] - 22

absence of some developed counter-advocacy, Section 4549(b) does appear to serve 

as a restraint on the range of information that will be available to counsel to share per a 

privilege-extending arrangement.25

IV. A Response to Justice Wecht

Justice Wecht takes the opportunity to criticize the Court for relying upon our

supervisory powers relative to grand jury practice. See, e.g., Concurring and Dissenting 

Opinion at 7-9. He proceeds to opine, more specifically, that we have inappropriately 

employed those powers in a manner that subverts legislative intent. See id. at 9-10.

In terms of this Court’s supervisory role relative to grand juries, in Dauphin Cty. 

Fourth Investigating Grand Jury, 610 Pa. 296, 318, 19 A.3d 491, 503 (2011), this Court 

has explained that “[t]he very power of the grand jury, and the secrecy in which it must 

operate, calls for a strong judicial hand in supervising the proceedings” (emphasis 

added)). Justice Wecht nonetheless seems to imply that this Court should refrain from 

exercising a meaningful degree of control over grand jury practice.

 

25 We have no wish to engage in gratuitous commentary here. See Concurring and 

Dissenting Opinion, slip op. at 9-10 (Donohue, J.). Rather, responding to the arguments 

presented, we express our concern that there may be some fundamental 

misapprehensions about the impact of common interest arrangements in the grand jury 

setting. Again, Appellants have presented no authority for the proposition that such 

private arrangements can be employed to surmount grand jury secrecy, absent 

approval of a supervising judge. Accordingly, while Justice Donohue is correct to point 

out that our above discussion would not be dispositive in a future case, we intend it to 

serve a cautionary role in a sensitive area of the law in which attorneys may run the risk 

of contempt sanctions.

We emphasize that the concern is not with the sharing of information protected by grand 

jury secrecy among common interests upon approval by a supervising judge. The tenor 

of Appellants’ argument, however, is to suggest that common interest arrangements 

obviate the need for any such approval.
[J-40-2018] - 23

However, this Court is entrusted with the supervision of the entire judicial system. 

See PA. CONST. art. V, §10(c). Additionally, we have explained that the entanglements, 

established by the Investigating Grand Jury Act, between grand jury practice and the 

judiciary will likely yield the impression, among the citizenry, that grand juries speak with

judicial sanction. See In re 40th Statewide Investigating Grand Jury, ___ Pa. ___, ___

& n.14, ___ A.3d ___, ___ & n.14, 2018 WL 3650493, *6-13 & n.14 (July 27, 2018) 

(inter alia, expressing the concern that “the grand jury’s pronouncements will be seen as 

carrying the weight of governmental and judicial authority . . . is substantial” (emphasis 

added)).

Particularly based on the present experience with Report 1 of the 40th Statwide 

Investigating Grand Jury, see id., we believe -- and we have learned -- that courts 

should assume a stronger role in supervising the grand jury process, precisely because 

the Legislature has reposited that system within judicial control. See id.; see also 42 

Pa.C.S. §4542 (incorporating the concept of a “supervising judge” into investigating 

grand jury practice (emphasis added)).

In terms of Justice Wecht’s assertion that we have invoked our supervisory 

powers to subvert legislative intent, see, e.g., Concurring and Dissenting Opinion, slip 

op. at 4, 7-10, we invite a fair reading of our opinion, above. We have, in fact, 

interpreted the Investigating Grand Jury Act to permit attorneys to represent their 

clients. And, in this regard, although Justice Wecht stresses secrecy in the grand jury 

process, see id. at 5-6, he fails to explain why it is somehow an unacceptable intrusion 

into secrecy for lawyers to be allowed, in a representational capacity, to disclose to 

others what their clients were absolutely free to disclose otherwise. Along these lines, 

we simply do not believe that the General Assembly intended an unreasonable result, 

i.e., for an attorney to be precluded from disclosing, at the direction of his or her client-
[J-40-2018] - 24

witness, that which the General Assembly has expressly authorized the client-witness to 

reveal.

26

V. Summary, Conclusion, and Order

In summary, an attorney who will be privy to matters occurring before an 

investigating grand jury shall be sworn to secrecy per the requirements of the 

Investigating Grand Jury Act, either via an appropriately tailored entry-of-appearance 

form or otherwise. The obligation of confidentially generally extends to all matters 

occurring before the grand jury, which includes, but is not limited to, what transpires in a 

grand jury room. A lawyer otherwise subject to secrecy, however, may disclose a 

client’s own testimony to the extent that the client would otherwise be free to do so 

under applicable law. Such disclosure is also subject to the client’s express, knowing, 

voluntary, and informed consent; the Rules of Professional Conduct; and specific 

curtailment by a supervising judge in discrete matters following a hearing based on 

cause shown.

The order of the supervising judge is vacated. To the extent that the entry-ofappearance form continues in use as a vehicle to administer a secrecy oath to attorneys 

in grand jury matters, the document is to be modified according to the requirements of 

this opinion.

This appeal is concluded.

 

26 Parenthetically, we take no issue with Justice Wecht’s explanation of the derivation of 

the entry-of-appearance form from circumstances connected with a grand jury 

investigation involving administrators of the Pennsylvania State University. See

Concurring and Dissenting Opinion, at 1-3. Of course, such derivation has little to do 

with the substantive correctness of the form. Accordingly -- and given that former 

Justice Cynthia Baldwin is engaged in attorney disciplinary proceedings relative to her 

conduct in the above setting -- we frankly saw no need to inject her involvement into the 

present discussion.
[J-40-2018] - 25

Justices Baer, Todd, Dougherty and Mundy join the opinion.

Justice Baer files a concurring opinion in which Chief Justice Saylor and Justices 

Todd, Dougherty and Mundy join.

Justice Donohue files a concurring and dissenting opinion.

Justice Wecht files a concurring and dissenting opinion.