Beasley v. Beasley

DEL SOLE, Judge,

dissenting:

I respectfully dissent based upon my belief that the permission to appeal was improvidently granted, and the appeal should be quashed.

The Majority citing Fried v. Fried, 509 Pa. 89 , 501 A.2d 211 (1985) and Cohen v. Beneficial Industrial Loan Corporation, 387 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949) notes that rejection of certification “might be justified”. Majority Opinion at 29. It finds, however, an “exceptional ingredient” in this case, the potentially lost rights of those clients who may be irreversibly harmed by intrusion into their attorney’s confidential files. I believe this rationale is flawed for two reasons.

The test applied to a question of appealability in Fried v. Fried, was as follows:

*46 (u)nder Cohen, an order is considered final and appeal-able if (1) it 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 mil be irreparably lost. (Citations omitted).

Fried v. Fried, 509 Pa. at 94 , 501 A.2d at 214 , quoting Pugar v. Greco, 483 Pa. 68, 73 , 394 A.2d 542, 545 (1978).

The Majority would find, under the third prong of the Cohen test, the client’s rights to confidentiality will be “irreversibly harmed” by the failure of this Court to grant permission to appeal. However, prong three of the test speaks to lost rights which belong to the parties, not the parties’ clients.

In addition, the Majority’s conclusion that an appeal is proper here because the case contains an issue of “commanding importance”, is not based on the appropriate standard. See: Toll v. Toll, 293 Pa.Super. 549 , 439 A.2d 712 (1981).

This court does have discretionary power to hear an appeal of an interlocutory order that has been certified by the lower court as presenting a “controlling question of law as to which there is substantial ground for difference of opinion and (where) an immediate appeal from the order may materially advance the ultimate determination of the matter (.)

Toll v. Toll, 293 Pa.Super. at 554 , 439 A.2d at 715 (emphasis added), citing 42 Pa.C.S.A. § 702(b).

While the certified issues in the present appeal have not been previously treated by the appellate courts of this Commonwealth, I am not convinced that immediate appellate review will materially advance the ultimate termination of the case. Rather, I perceive this appeal as premature and inappropriate since it serves to add yet another delay to disposition of this litigation.

Assuming this court were to rule that the interlocutory appeal in this case should be quashed, I believe it would *47 expedite the case without serving to expose the confidential matters included in a client’s file. For appraisal purposes, most of the information necessary to evaluate the potential worth of a claim is based upon information gleaned through discovery, and is therefore readily available without breaching any duties of confidentiality. Materials sought for appraisal which counsel deems are confidential and nondis-coverable are best handled by the trial judge supervising the evaluation on a case-by-case basis. If a situation were to develop where a decision is issued and a party fails to comply with a court order requiring information to be disclosed, a contempt citation would be issued and sanctions would be imposed. An appeal from this type of final order would then be appropriate. See: Hester v. Bagnato, 292 Pa.Super. 322 , 437 A.2d 66 (1981).

JOHNSON, J., joins.