# T.M. v. Elwyn, Inc.

> Superior Court of Pennsylvania · June 4, 2008 · 2008 Pa. Super. 113

URL: https://www.frixlaw.com/law-library/cases/9755370

## Case

- **Full name:** T.M., as Parent and Legal Guardian for D.M., a Minor, Appellee v. ELWYN, INC. and Elwyn Alternative School and Markeith Eugene Aikens Appeals of Elwyn, Inc. and Elwyn Alternative School, Appellants
- **Court:** Superior Court of Pennsylvania
- **Decided:** June 4, 2008
- **Citations:** 2008 Pa. Super. 113; 950 A.2d 1050; 2008 Pa. Super. LEXIS 1109
- **Precedential status:** Published
- **Opinion:** Concurrence by Colville
- **Judges:** Bender, Tamilia, Colville
- **Cited by:** 67 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755370

## How later opinions describe it (automated extraction)

- stating that, orders involving potentially confidential and privileged materials, especially materials involving sensitive mental health information, implicate the “importance” prong of the collateral order doctrine “because the privacy rights involved are deeply rooted in pub…
- holding that this Court’s per curiam order denying the appellant’s petition for permission to appeal without explanation did not prohibit this Court from determining that orders at issue were appealable as collateral orders under Pa.R.A.P. 313
- stating that the "court may conduct in camera review of documents identified [ ] to be subject to a privilege, to better analyze the privilege issues, as needed.”
- holding that this Court may revisit the appealability of an order when we have issued a per curiam order which lacks detailed reasoning
- discussing whether there is anything in Rule 1316 that precludes the filing of both a collateral appeal and petition for review

## Opinion text

CONCURRING STATEMENT BY
COLVILLE, J.:
¶ 1 I join the Majority’s well-reasoned and persuasive Opinion. I write separately to express concerns I have with manner in which Appellants sought to appeal from two non-final orders.
¶2 On March 26, 2007, the trial court filed two orders, Orders A and B. On March 28, 2007, Appellants filed a notice of appeal in which they gave notice that they were appealing Order B. On April 12, 2007, Appellants filed a motion for reconsideration and/or appellate certification of Order A. Then, on April 16, 2007, Appellants filed another notice of appeal in which they gave notice that they were appealing Order A. On April 20, 2007, they filed a motion for reconsideration and/or appellate certification of Order B.
¶ 3 The trial court never ruled on the requests for appellate certification. According to Appellants, pursuant to Pa. R.A.P. 1311(b), their requests were *1064 deemed denied upon the expiration of thirty days, thus causing Appellants to file petitions for review in this Court. 5 Noticeably absent from Appellants’ petitions for review is any reference to the fact that they had filed notices of appeal from the same orders that they then sought to have this Court review under its discretionary authority. In any event, this Court denied Appellants’ petitions for review.
¶ 4 The orders that Appellants seek to appeal are not final and appealable pursuant to Pa.R.A.P. 341, nor are they appeal-able as of right pursuant to Pa.R.A.P. 311. Appellants’ current position is that the orders are collateral orders appealable as of right under Pa.R.A.P. 313. Such a position contradicts the stance Appellants took in their petitions for review. See, e.g., Appellants’ Petition for Review, 6/19/07, at 4 (“Unless this Court grants discretionary review, [Appellants] will be required to comply with the Order of March 2[6], 2007....”). Appellee contends that, because this Court denied Appellants’ petitions for review, Appellants are precluded from seeking to appeal the orders in question pursuant to Pa.R.A.P. 313.
¶ 5 In response to Appellee’s preclusion argument, Appellants insist they acted appropriately by simultaneously filing notices of appeal and seeking discretionary review of Orders A and B. The backbone of Appellants’ argument in this regard is as follows: the “Bible” of Pennsylvania appellate practice:
... [Appellants] had two options to challenge the March 23rd Orders. The proper practice is to utilize both options because, in the event one is denied, the other remains viable. As explained in
To the extent that it is not clear that a particular order is appealable as a matter of right as a collateral order, counsel has the choice of either filing a notice of appeal on the assumption that it is a collateral order, or pursuing an interlocutory appeal by permission, on the assumption that the requirements of a collateral order will not be found. In such cases, the cautious practice is to pursue both options. That is because if only a petition for permission to appeal is filed, and it ultimately is determined that the order is a collateral order and that a notice of appeal is the correct procedure, the filing of the petition for permission to appeal will be deeded insufficient, and the right to an immediate appeal will be lost.
Similarly, even though an order may be appealable as a collateral order, if the appellant treats the order as interlocutory and appealable under Rule 1311 or Rule 341(c), an appeal may be quashed if the appellant fails to follow the procedures prescribed for securing interlocutory review.
See Darlington et al., Pennsylvania Appellate Practice 2d, § 313:3 (2004 Supp.) (citations omitted; emphasis added).
Appellants’ Reply Brief at 3.
¶ 6 Appellants’ argument fails to take into account that, on December 8, 2004, our Supreme Court adopted Pennsylvania Rule of Appellate Procedure 1316, which became effective on February 7, 2005. 6 In *1065 fact, since the adoption of Pa.R.A.P. 1316, Pennsylvania Appellate Practice now states:
To the extent that it is not clear that a particular order is appealable as a matter of right as a collateral order, counsel has the choice of either filing a notice of appeal (or a petition for review) on the assumption that it is a collateral order, or pursuing an interlocutory appeal by permission, on the assumption that the requirements of a collateral order will not be found. In such cases, counsel should not appeal but instead should seek interlocutory review by permission pursuant to Pa.R.A.P. 1311. If upon review of a petition for permission to appeal or a petition for review from the trial
(b) Additional requirements. The appellate court may require any additional actions necessary to perfect the appeal, court’s refusal to amend its order to permit the filing of a petition for permission to appeal, the appellate court concludes that the order is ap-pealable as of right as a collateral order, it will treat a timely filed petition for discretionary review as a timely notice of appeal or petition for review, pursuant to Pa.R.A.P. 1816. On the other hand, if only a notice of appeal is filed and it is ultimately decided that a petition for permission to appeal is the correct procedure, the time will have passed to pursue an interlocutory appeal by permission. An application for amendment of an interlocutory order to include the language specified in 42 Pa.C.S. § 702(b) of the Judicial Code must be filed with the lower court or government unit within 30 days after the entry of the interlocutory order in question.
Where the interlocutory appeal process is initiated, counsel should follow the procedures faithfully, and not intermingle them with procedures governing appeals as of right. The “safe harbor” provisions of Pa.R.A.P. 1316 guarantee that even if an order is appealable as of right by notice of appeal, a petition for permission to appeal or a petition for review from the trial court’s refusal to amend its order, would be treated as a notice of appeal. In seeking trial court certification and appellate permission to appeal, counsel should, in addition to arguments in support of permission to appeal, make the case for an appeal as of right.
G. Ronald Darlington et al., Pennsylvania Appellate Practice § 313:3 (2006 ed.) (footnotes omitted and emphasis added).
¶ 7 The Majority correctly points out that nothing in Rule 1316 precludes the filing of both a collateral appeal and a petition for review. However, judicial economy is not served by allowing parties to utilize two separate tracks to argue for the immediate appeal of non-final orders. In my view, if parties, such as Appellants, wish to argue, on the one hand, that an order is appealable as of right and, on the other hand, that an order is appealable under this Court’s discretionary authority, then, in order to consolidate this Court’s *1066 efforts, both of these arguments should be presented in a petition for review. Rule 1316 allows for this consolidation. See Pa. R.A.P. 1316(a) (“The appellate court shall treat a request for discretionary review of an order which is immediately appealable as a notice of appeal.... ”).
. The parties do not provide any advocacy concerning the effect the filing of Appellants’ notices of appeal had on the trial court’s ability to amend the March 26th orders to comport with 42 Pa.C.S.A. § 702(b). See Pa. R.A.P. 1701(a) (“Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.”).
. Rule 1316 provides:
*1065 ía) General rule. The appellate court shall treat a request for discretionary review of an order which is immediately appealable as a notice of appeal under the following circumstances:
(1) where a party has filed a timely petition for permission to appeal pursuant to Pa. R.A.P. 1311; or
(2) where a party has filed a timely petition for review from a trial court’s refusal of a timely application pursuant to Pa.R.A.P. 1311 to amend the order to set forth expressly the statement specified in 42 Pa.C.S. § 702(b).
Pa.R.A.P. 1316.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755370. Public record. Not legal advice.