By Mary Cushing Doherty, AAML Pennsylvania Fellow | High Swartz

In the case at hand, your client is Dad A in the custody and support matter:  Mr. A v. Mr. Z.  The case involving their 10-year-old daughter.  The parties settled custody issues before Conciliator C.  After the Domestic Relations Office support conference and testimony before the support Hearing Officer a legal issue was raised and referred to Family Court Judge J for a hearing on whether an agreement before Custody Conciliator C is binding in the support case. 

During the Custody Conciliation Dad Z and Dad A agreed that their daughter should return to attend overnight summer camp as she had in prior years.  The agreement on this and other issues was placed on the record before Conciliator C.  Dad A recalls that Conciliator C heard the lawyers state during the Conciliations that the respective cost to each parent would be resolved in support court.  Dad A is furious now because Dad Z (who switched lawyers) is telling the support DRO Officer, and the support Hearing Officer, that he cannot afford to pay his percentage of the overnight summer camp cost.   Dad Z argues he is not bound to contribute to this unreasonably expensive summer camp.  Dad Z asks the court to rule that he should not be bound to contribute anything greater than his share of the cost for their daughter to attend a local day camp.  You argue on behalf of Dad A that Dad Z cannot reopen the issue of the daughter’s reasonable summer camp when it was jointly approved as part of the custody agreement.  You argue both attorneys acknowledged in the Conciliation each parent’s contribution would be determined in support court.  Now Dad Z with his new attorney claims there was never this acknowledgement.

Your client wants Conciliator C to testify that the cost of summer camp was brought to the attention of Dad Z before he signed the custody agreement that addressed selection of overnight summer camp. You study whether you can successfully issue a subpoena to Conciliator C to appear before Judge J.  You start by reviewing 9 Standard Pennsylvania Practice 2d §54.12 that disapproves of eliciting testimony from a judicial officer as well as Pennsylvania Rule of Judicial Administration 1701 that provides no judicial officer pursuant to a subpoena without prior authorization of the Pennsylvania Supreme Court. 

You read Kulesa v. Mindy Harris, et al, 519 Fed Appx (3rd Cir. 2013) in which the federal Third Circuit Court of Appeals found the various court employees in Montgomery County, Pennsylvania (court administrators, prothonotary and Support Master Harris) are entitled to quasi-judicial immunity because they exercised discretionary judgment as part of their function.  Therefore, Support Master Harris could not be sued by a party about her actions in the support matter, and the litigation brought by plaintiff Kulesa was dismissed.

The Pennsylvania Superior Court in Leber v. Stretton (2007 allocatur denied) held questioning a judicial officer as to the knowledge or opinions of judicial officers regarding cases and their judicial function is prohibited.  You discuss the Leber and Kalesa decisions with your client and the client spots footnote 12 in Leber suggests in dicta a distinction between a judge testifying about her/his mental process (where judicial immunity applies) compared with purely factual testimony about what happened.  Arguing Conciliator C will provide purely the factual testimony, Dad A wants the subpoena to issue.

In an unreported decision Zabreski v. von Schmeling, 213 WL 1402324 (M.D. Pa. April 5, 2013), the Superior court rejected this argument based on the dicta in Leber and relied on the conclusion of the Pennsylvania Superior Court in Leber that found questioning a judicial officer about surrounding facts would be contrary to public policy and unacceptable because the conduct occurred during the judicial officer’s participation in a public hearing.

As an advocate you may try to thread this needle claiming you only seek fact testimony as suggested in the Leber dicta (footnote 12).  As counsel for Dad A, you should warn the client that Judge J might raise concerns about the burden on the functioning of the court.  The Zabreski decision advises there may be an appearance of impropriety if it is viewed that the court officer or judge is biased or showing favoritism.  The court has an interest is in facilitating the dispose efficient disposition of family law cases before Conciliators, Hearing Officers and other quasi-judicial court staff.  Therefore, the subpoena may not lead to testimony from Conciliator C.