# Stenger v. Lehigh Valley Hospital Center

> Supreme Court of Pennsylvania · March 1, 1989 · 382 Pa. Super. 75

URL: https://www.frixlaw.com/law-library/cases/9717256

## Case

- **Full name:** William R. STENGER, Donna A. Stenger, Craig Stenger and Barry Stenger, Minors Hy Their Parents and Natural Guardians William and Donna Stenger v. LEHIGH VALLEY HOSPITAL CENTER, Samuel Huston, Theodore J. Matulewicz, M.D., Barry J. Slaven, M.D., Hospital Central Services, Inc., H.C.S.C. Blood Center T/A Samuel W. Miller Memorial Blood Center, Lyndall Molthan, M.D., and Joseph Yelo and the Morning Call, Inc. Appeal of the MORNING CALL, INC.
- **Court:** Supreme Court of Pennsylvania
- **Decided:** March 1, 1989
- **Citations:** 382 Pa. Super. 75; 554 A.2d 954; 1989 Pa. Super. LEXIS 619
- **Precedential status:** Published
- **Opinion:** Dissent by Wieand
- **Judges:** Wieand, McEwen, Melinson
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WIEAND, Justice,
dissenting:
I respectfully dissent from the decision of the majority to quash this appeal. In my best judgment, it would be more realistic to affirm the order of the trial court.
In this action to recover damages for the alleged contraction of Acquired Immune Deficiency Syndrome (AIDS) by blood transfusion, the trial court directed that discovery proceedings should be closed to the press and public. The Morning Call, an Allentown newspaper, filed a petition to intervene in the action for the purpose of challenging its exclusion from pre-trial discovery proceedings. The trial *91 court, after due consideration, denied the petition to intervene. In my judgment, the decision of the trial court was correct. The Morning Call did not have an absolute right of access to the pre-trial discovery proceedings. See: Seattle Times Company v. Rhinehart, 467 U.S. 20 , 104 S.Ct. 2199 , 81 L.Ed.2d 17 (1984). Moreover, its common law right to inspect court records was subject to the supervisory powers of the trial court, which could exclude the public and the media from pre-trial discovery proceedings to protect the private rights of the parties. Cf. Katz v. Katz, 356 Pa.Super. 461 , 514 A.2d 1374 (1986), appeal denied, 515 Pa. 581 , 527 A.2d 542 (1987). Therefore, I would affirm the order of the trial court.
In Frey’s Estate, 237 Pa. 269 , 85 A. 147 (1912), the Supreme Court said:
While, as a rule, an appeal will not lie from an order refusing leave to intervene, because such an order is not a final one, cases may arise where a denial of a petition to intervene would be a practical denial of relief to which the petitioner for intervention is entitled and can obtain in no other way; and in such cases the refusal to permit an intervention is a final order or decree as to the petitioner.
Id., 237 Pa. at 271 , 85 A. at 148 (citations omitted). The majority, in reliance upon Frey’s Estate , examines the merits of the petition to intervene, determines that The Morning Call was not entitled to the relief sought, and holds, therefore, that an appeal will not lie from the order of the trial court which denied intervention. This reasoning is circuitous. Nevertheless, it has been followed by the Superior Court in the following cases: Inryco, Inc. v. Helmark Steel, Inc., 305 Pa.Super. 239 , 451 A.2d 511 (1982); Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. 279 , 446 A.2d 614 (1982); Richard Held Builders, Inc. v. A.G. Allebach, Inc., 266 Pa.Super. 101 , 403 A.2d 113 (1979); Taub v. Merriam, 251 Pa.Super. 572 , 380 A.2d 1245 (1977). As we shall see, however, the Supreme Court has itself cast doubt on the continuing validity of this rule by dictum in Capital Cities Media, Inc. v. Toole, 506 *92 Pa. 12 , 483 A.2d 1339 (1984). In my best judgment, this old rule is unrealistic and can serve only to confound. It has been widely criticized and was disapproved and rejected by the Third Circuit Court of Appeals in Commonwealth v. Rizzo, 530 F.2d 501 (3d Cir.1976), cert. denied, Fire Officers Union v. Pennsylvania, 426 U.S. 921 , 96 S.Ct. 2628 , 49 L.Ed.2d 375 (1976). After discussing the old rule, identical to that stated in Frey’s Estate, supra, which had theretofore been followed by the Third Circuit, the Court said:
We do not follow the older rule which made appealability turn on whether the appellant had, in fact, a right to intervene. “Since [such a rule] makes appealability turn on the merits, it is not a very effective or useful limitation of appellate jurisdiction; the propriety of the denial by the district judge must be examined before the appellate court knows whether it has jurisdiction, and the only consequence of the restriction on appealability is that on finding the district judge was right, it will dismiss the appeal rather than affirm.” Levin v. Ruby Trading Corp., 333 F.2d 592, 594 (2d Cir.1964) (Friendly, J.) (quoted in 7A C. Wright & A. Miller, Federal Practice and Procedure § 1923, at 627 (1972)). It is sufficient that intervention of right was sought and denied to render the denial appealable.
Commonwealth v. Rizzo, supra at 504. See also: 3B Moore’s Federal Practice 24.15, at 564-565 (2d ed. 1976); Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 748-751 (1968), cited in Boise Cascade Corporation v. East Stroudsburg Savings Association, supra 300 Pa.Super. at 282 n. 1, 446 A.2d at 615 n. 1.
Generally, an appeal will lie only from a final order, i.e., one that ends the litigation or disposes of the entire case, unless an appeal is otherwise permitted by statute. Pugar v. Greco, 483 Pa. 68, 72-73 , 394 A.2d 542, 544-545 (1978). See also: Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402 , 319 A.2d 677 (1974). In Cohen v. Beneficial Industrial Loan Corporation, 337 *93 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), however, the Supreme Court of the United States carved out an exception to the final judgment rule for situations in which postponement of an appeal until after entry of final judgment might result in the irreparable loss of the right asserted. This exception has been adopted and followed in Pennsylvania. See: Pugar v. Greco, supra; Gray v. State Farm Insurance Co., 328 Pa.Super. 532 , 477 A.2d 868 (1984); Veno v. Meredith, 295 Pa.Super. 419 , 441 A.2d 1302 (1982). Under Cohen , an appeal will lie from an order that will not terminate the litigation where three requirements are met: (1) the order appealed is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) if review of the question presented is postponed until final judgment, the claimed right will be irreparably lost. Cohen v. Beneficial Industrial Loan Corporation, supra 337 U.S. at 546 , 69 S.Ct. at 1226 , 93 L.Ed. at 1536 .
The instant case involves a newspaper’s right to intervene in an action to challenge a court order closing judicial proceedings to the press and public. The order is clearly separate from and collateral to the principal cause of action. It also involves a right too important to be denied review, for it pertains to the right of the news media to be accorded access to pre-trial discovery proceedings in a civil action charging a major medical center with negligence in allowing the AIDS virus to be communicated by blood transfusion. Cf. Capital Cities Media, Inc. v. Toole, supra 506 Pa. at 22 , 483 A.2d at 1344 (“We recognize the legitimacy and importance of the interest of the news media in judicial proceedings.”). Finally, because of the ephemeral nature of the news media’s alleged right to publish, our courts have been sensitive to the need to allow expeditious appeals. Id. Indeed, in the instant case, a later appeal, after the entire case has been resolved, will be of little practical value to appellant. I would hold, therefore, that the order denying intervention in the instant case is immediately appealable.
*94 The Pennsylvania Supreme Court has specifically directed the procedure to be used by the media in situations such as this. In Capital Cities Media, Inc. v. Toole, supra, a newspaper had petitioned for a writ of prohibition which would have had the effect of barring enforcement of a court order restraining the media from printing or announcing names or addresses of jurors and from taping, sketching or photographing jurors in a criminal case. In upholding the trial court’s denial of the writ on procedural grounds, the Court said:
The first step in this procedure would have been for the applicants to petition the trial court to intervene for the purpose of challenging the legality of the pre-trial orders. See, e.g., Commonwealth v. Hayes, [ 489 Pa. 419 , 414 A.2d 318 , cert. denied, 449 U.S. 992 , 101 S.Ct. 528 , 66 L.Ed.2d 289 (1980) ]. Such an action is in accordance with our well-established and strongly held view that it is essential to meaningful judicial review that objections should be addressed to the court of first instance to permit that court to evaluate such claims and to have the opportunity to correct its own errors. This practice creates a record from which the grounds of the lower court’s determination may be readily discerned in the event review by an appellate court becomes necessary. An order denying leave to intervene in these sensitive circumstances is immediately appealable. See Frey’s Estate, 237 Pa. 269 , 85 A. 147 (1912); see generally Pugar v. Greco, 483 Pa. 68 , 394 A.2d 542 (1978); Bell v. Beneficial Consumer Discount Co., 465 Pa. 225 , 348 A.2d 734 (1975).
Id. 506 Pa. at 22-23 , 483 A.2d at 1344 (emphasis added) (citations omitted). Thus, the Supreme Court has not only defined the procedure to be followed by the media, but has declared that a denial of a right to intervene is immediately appealable.
The procedure followed by The Morning Call in the instant case adhered to that prescribed by the Supreme Court in the Capital Cities Media case. When the trial court *95 denied the petition for intervention, its order, I would hold, was immediately appealable under the Cohen collateral order rule. See: Capital Cities Media, Inc. v. Toole, supra; Katz v. Katz, supra. Therefore, I would not quash this appeal. Instead, I would affirm the order of the trial court. The access of the media to pre-trial discovery proceedings in a civil action, as the majority has discerned, is subject to reasonable control by the court in which the action is pending.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9717256. Public record. Not legal advice.