Commonwealth v. Feagley

KELLY, Judge,

concurring:

I join in the majority opinion. I would add to its excellent analysis briefly as follows.

Appellant contends that the conditions imposed on ARD are illegal and excessive. Assuming, arguendo, that his contentions have merit, * how may the conditions properly be challenged? Unless ARD is revoked, appellant’s charges will be held in abeyance until ARD is completed. Consequently, direct appeal of a final order would not be available as the challenged license suspension would have expired, the charges would be dismissed, and appellant’s claim *608 would be moot. Thus, while ARD acceptance does not constitute a conviction in the general sense of that term, we must still decide whether the order is, nonetheless, immediately appealable.

Generally, an immediate appeal may only be taken from a final order. Pa.R.A.P. 341. A final order is one which disposes of the entire case or puts an appellant out of court with respect to a claim. Commonwealth v. Wills, 328 Pa.Super. 342 , 476 A.2d 1362 (1984). In the instant case, appellant elected (wisely or not) to permit the charges against him to be held in abeyance; the charges are not disposed of and he is not out of court on his claims. Thus, the order in question is not immediately appealable as a final order.

Alternatively, even if an order is an interlocutory order rather than a final order, immediate appeal by right may be taken if the order is one of the types of interlocutory orders listed in Pa.R.A.P. 311. The instant order, however, is not.

Consequently, the order in question is only appealable by right during appellant’s participation in the ARD program if the order is appealable under the three prong “Cohen exception” to the final order rule, also referred to as the “collateral order doctrine.” See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 , 69 S.Ct. 1221, 1225-26 , 93 L.Ed. 1528 (1949). The Cohen exception provides that an interlocutory order may be immediately appealed if: 1) the order is separable from and collateral to the main cause of action; 2) the right involved is too important to be denied review; and 3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. See Fried v. Fried, 509 Pa. 89, 94 , 501 A.2d 211, 214 (1985); see also Zarnecki v. Shepegi, 367 Pa.Super. 230 , 532 A.2d 873 (1987). To qualify under the Cohen exception, all three factors must be met. See Fried v. Fried, supra, 501 A.2d at 214 ; Commonwealth v. Bonaparte, 366 Pa.Super. 182 , 184-185 n. 1, 530 A.2d 1351 , 1352 n. 1 (1987) (applying the Cohen test). In the instant case, any irreparable loss of appellant’s ability *609 to challenge the ARD conditions is clearly the result of appellant’s election and not the order appealed. Consequently, I do not find this case to be appealable under the Cohen exception.

When an interlocutory order is not immediately appeal-able by right, discretionary review may be sought. The proper procedure to seek discretionary review of an interlocutory order in this Court is to file a petition for review pursuant to Pa.R.A.P. 1311; see e.g. Pyle v. Commonwealth, 494 Pa. 323, 325 , 431 A.2d 876 , 876-77 (1981) (discretionary review of denial of admittance to ARD). As the majority notes, appellant has made no attempt to comply with the procedures dictated by the rules.

Moreover, even if the proper procedures were followed, I would deny discretionary review. Allowance of a discretionary appeal in cases such as this would tend to foster meritless and time-consuming appeals without a compelling justification. Appellant elected to limit his appellate rights by accepting ARD, even though he believed the terms to be illegal and excessive. Had he rejected the terms, proceeded to trial and been convicted, he still would have been able to challenge the alleged illegality and excessiveness of the ARD terms on direct appeal. See Commonwealth v. Burdge, 345 Pa.Super. 187 , 497 A.2d 1367 (1985) (per Tamilia, J.) (court’s ARD conditions invalid, conviction reversed, case remanded for reconsideration of acceptance into ARD program); see also Commonwealth v. Roeder, 353 Pa.Super. 137 , 509 A.2d 373 (1986) (alleged abuse of discretion by D.A. in setting policy denying ARD to anyone with a prior record challenged on direct appeal from conviction, albeit unsuccessfully); Commonwealth v. Kiehl, 353 Pa.Super. 353 , 509 A.2d 1313 (1986) (conviction reversed and case remanded for hearing to have district attorney disclose on the record the reason(s) for denying appellant admission to ARD).

Neither law nor equity requires that we grant an extraordinary interlocutory appeal to an appellant whose predicament is caused solely by his own election to accept the *610 ARD conditions which he now alleges to be illegal and excessive. I would not do so here.

I assume merit in the contention for the purpose of discussion of the appealability question only. The condition challenged here (as the majority opinion demonstrates) is manifestly reasonable. However, our procedural analysis would apply equally even if the condition challenged were less obviously reasonable; consequently, I emphasize that the order to quash is not dependent upon the reasonableness of the condition challenged.