Hutchison v. Luddy

JOHNSON, Judge,

dissenting.

This case arises out of the trial court’s disposition of a motion to compel discovery, and an opposing petition for a protective order. Because I conclude that we are without jurisdiction to entertain the issues presented, I would quash this appeal.

Samuel C. Hutchison filed a civil action claiming damages against Father Francis Luddy as a result of various sexual acts allegedly performed by Luddy through the year 1985, while Luddy was serving as a pastor. Hutchison’s complaint also asserted causes of action against Bishop James Hogan, Monsignor Thomas Madden, Monsignor Roy F. Kline, Monsignor Paul Panza, Monsignor Ignatius Wadas, the Diocese of Altoona-Johnstown, St. Mary’s Catholic Church, Cardinal John Krol and the Arch-Diocese of Philadelphia stemming from the same incidents.

In the course of this litigation, Hutchison filed a motion to compel discovery against Defendant-Appellants Bishop Hogan, Monsignor Madden, Monsignor Kline, Monsignor Panza, Monsignor Wadas, the Diocese of Altoona-Johnstown, and St. Mary’s Catholic Church (hereafter the “Altoona-Johnstown parties”) requesting that the trial court order compliance with Hutchison’s requests for production of documents. The motion also requested dismissal of the Altoona-Johnstown parties’ objections to those requests. The Altoona-Johnstown parties filed a motion requesting a protective order, contending that production should not be compelled on the basis of alleged defects in the requests *154 and on the basis that some of the documents sought are privileged. The trial court granted in part and denied in part each of the parties’ motions, and the Altoona-Johnstown parties appeal.

In ruling on competing motions, the trial court denied the Altoona-Johnstown parties’ request for a protective order regarding materials contained in the Canon 489 file; however, the order permitted Altoona-Johnstown Clergy to submit further protection requests or present the documents for in camera review within thirty days.

The Altoona-Johnstown parties filed notice of appeal with this court. See 42 Pa.C.S. § 742; Pa.R.A.P. 702, 42 Pa.C.S. The Altoona-Johnstown parties also filed a Petition for Review. See 42 Pa.C.S. § 702(b); Pa.R.A.P. 1311, 42 Pa.C.S. In response, Hutchison filed both a Motion to Dismiss, for jurisdictional reasons, and an Application for Disposition and/or Advancement of Argument of the Motion to Dismiss or/alternatively Advancement of Argument of Case.

On July 8, 1991, we determined that we possess jurisdiction over this case as a direct appeal; therefore, we issued an order dismissing as moot the Altoona-Johnstown parties’ Petition for Review. For the same reason, we also issued an order denying Hutchison’s Motion to Dismiss. Finally, we issued an order dismissing as moot Hutchison’s Application for Disposition and/or Advancement of Argument of the Motion to Dismiss or/alternatively Advancement of Argument of Case. Accordingly, this appeal is before this panel as a direct appeal.

In determining that jurisdiction exists to entertain this case as a direct appeal, we relied upon Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), and our decision in Hutchison v. Luddy, 398 Pa.Super. 505 , 581 A.2d 578 (1990). Our decision in Hutchison v. Luddy, however, has since been reversed by a per curiam order of our Supreme Court which stated that the order under review was not final and, therefore, not appealable. Hutchison v. Luddy, 527 Pa. 525 , 594 A.2d 307 (1991). I find it appropriate, therefore, *155 that we reconsider whether this case is properly before us, pursuant to 42 Pa.C.S. § 742.

It is well settled that an appeal to this court, unless otherwise permitted by statute, will lie only from a final order, Pugar v. Greco, 483 Pa. 68, 72 , 394 A.2d 542, 544 (1978); See 42 Pa.C.S. § 742; Pa.R.A.P. 341, 42 Pa.C.S. A final order is usually one which ends the litigation, or alternatively, disposes of the entire case. Pugar, 483 Pa. at 73 , 394 A.2d at 545 , citing Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404 , 319 A.2d 677, 678 (1974). Here, it is beyond dispute that the order in question, governing discovery, neither ends the litigation, nor disposes of the entire case. However, in determining what constitutes a final order, our Supreme Court, in Pu-gar, and Piltzer , has embraced the approach set forth in Cohen v. Beneficial Industrial Loan Corporation, 337, U.S. 541, 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949). There, the U.S. Supreme Court employed “a practical rather than technical construction” of the finality requirement, and created an exception to the traditional final judgment rule. Thus, the appellate courts of this state are to apply the approach of Cohen to determine whether the order is appealable, despite that it neither ends the litigation nor disposes of the case, as an exception to the traditional final judgment rule.

In Cohen , a district court had denied a defendant’s petition to require the plaintiff to post security to cover the defendant’s expenses and counsel fees should plaintiff’s action prove unsuccessful in a stockholders’ derivative action. The Supreme Court determined that that order was sufficiently final and appealable to permit review. A three-part test to determine appealability was articulated as follows: (1) the right sought to be protected in the appeal is separable from, and collateral to, the rights asserted in the action; (2) the claim must be too important to be denied review; and (3) the question was such that, if review was postponed until final judgment in the case, the claimed right would be irreparably lost. Applying the three part test, the *156 Supreme Court concluded that the order denying a petition to post security was sufficiently final to permit appellate review.

Pennsylvania appellate courts have, on several occasions, interpreted and applied the Cohen test to orders related to discovery. In Gottschall v. Jones & Laughlin Steel Corporation, 333 Pa.Super. 493 , 482 A.2d 979 (1984), cert. denied, 474 U.S. 845 , 106 S.Ct. 134 , 88 L.Ed.2d 1 .10 (1985), this court addressed the appealability of an order which temporarily sealed documents claimed by the defendants to be privileged until a hearing could be had on the privilege issue. We stated that because the information sought had the potential to determine the ultimate issues of liability, and might even disqualify the plaintiff from pursuing the cause of action, the order involved issues not separable from and collateral to the underlying action for the purposes of Cohen. Gottschall, 333 Pa.Super. at 500 , 482 A.2d at 983 . We therefore held that the order was interlocutory and unappealable. Id.

In Doe v. Commonwealth Department of Public Welfare, 105 Pa.Cmmw. 482, 524 A.2d 1063 (1987), the plaintiff alleged that she had been abducted and raped by an escaped prisoner as a result of the negligence of the defendants, and instituted a personal injury action. In discovery, Doe sought, inter alia, a memorandum which outlined the psychological status of the attacker and chronology leading up to the escape, and a document containing a retrospective analysis from several departments on the inmate’s admittance, background and escape. Although the defendants refused to produce the documents on the basis of a claimed statutory privilege, the trial court concluded that the claimed privilege was inapplicable, and directed in camera inspection for determinations of relevancy. The defendants contended on appeal that the discovery order fell into the “collateral order” exception to the final order requirement. The Commonwealth Court held that, because the documents sought had the potential to determine the ultimate issues of liability, the order compelling discovery *157 was not separable from and collateral to the merits of the action for the purposes of determining appealability under Cohen. Doe, 105 Pa.Cmmw. at 485-87, 524 A.2d at 1065 . Similarly, in Commonwealth Department of Environmental Resources v. Texas Eastern Transmission Corporation, 130 Pa.Cmmw. 655, 569 A.2d 382 (1990), the Commonwealth Court held that an order which compelled discovery of documents against a claim of attorney-client privilege was not separable and collateral, but rather, was interlocutory and unappealable under Cohen .

Guided by Gottschall, Doe and Texas Eastern Transmission Corp., I conclude that the order here-involved cannot satisfy the “separate and collateral” prong of the Cohen test. The order compels discovery of documents related to Father Luddy, the sexual misconduct of priests of the Altoona-Johnstown Diocese with male children, and the transfer and assignment of priests of that diocese. This information is relevant to the resolution of the ultimate issues of the underlying claims; therefore, the trial court’s order cannot be deemed separable from and collateral to the issues and rights asserted in the action. Accordingly, the order in question fails the first requirement of the three-part Cohen test, and it is not necessary to consider the two remaining elements. See Gottschall, 333 Pa.Super. at 500 , 482 A.2d at 983 ; Doe , 105 Pa.Cmmw. at 485-87, 524 A.2d at 1065 .

Furthermore, as the order appealed from expressly permits the Altoona-Johnstown parties to submit further requests for protective orders as to any document contained within the file, I find it difficult to deem the order to have been final in any respect with regard to the production of those documents.

Finally, this court has expressed its reluctance to provide supervision of discovery proceedings in cases pending in the trial courts. See McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405 , 493 A.2d 84 (1985). Similarly, the Commonwealth Court in Doe , citing Borden Co. v. Sylk, 410 F.2d 843, 846 (3rd Cir.1969), noted the potential *158 burden which appeals from discovery orders would have on appellate courts, and observed that, to allow such appeals as a matter of right, “would constitute the [appellate courts] as second-stage motion courts----” Doe , 105 Pa. Cmmw. at 486, 524 A.2d at 1065 . I believe that these concerns are valid.

I conclude that the order in question is interlocutory and unappealable fully cognizant of our recent decision in Commonwealth v. Miller, 406 Pa.Super. 206 , 593 A.2d 1308 (1991). There, we reviewed a trial court order directing the Women’s Resource Center of Fayette County to provide to the trial court, for in camera inspection, all records and information in their possession pertaining to an alleged victim of a sexual assault. We determined there that the order satisfied the three prongs of Cohen , including the “separable and collateral” aspect, and proceeded to consider the merits of the appeal. However, Miller is to be distinguished from the case at bar because the order in Miller compelled discovery from a non-party. This court has previously noted that an order compelling discovery of a person not party to the original complaint could arguably be appealed under the collateral order doctrine. See Steel v. Weisberg, 347 Pa.Super. 106 , 500 A.2d 428 (1985). The order involved here, however, compels discovery from a party.

The Majority Opinion, without analysis, declares that “[t]he order from which the appeal was taken does not decide the principal action but is collateral thereto.” Majority Opinion at 143-144. This assertion appears to ignore both Gottschall and Doe, supra. I need not disagree with the Majority’s conclusion that the Church’s claimed right of confidentiality is too important to be denied review. Nor need I dispute the Majority’s assertion that to postpone review until final judgment would cause the claimed right to be irreparably lost. The three prongs of the Cohen test are conjunctive; all three must be satisfied for the rule to be implemented. Where, as here, the right sought to be protected is neither separable from, nor collateral to, the *159 rights asserted in the action, the remaining two prongs of the Cohen test are rendered immaterial.

Moreover, the Majority concedes that the order now under review grants leave to the Altoona-Johnstown parties to seek further protective orders or to present the documents for in camera review before disclosure to the adverse party. On this basis, it cannot be reasonably argued that the review of the claimed right is being postponed until final judgment.

Nor can I agree with the majority that to quash the appeal “serves no purpose other than delay.” Majority Opinion, page 144 n. 2. For the reasons I have stated, I conclude that the order is interlocutory. The order is not among those interlocutory orders for which appellate review exists as of right. See Pa.R.A.P. 311, 42 Pa.C.S. Our jurisdiction to review the order, therefore, must rest, if at all, in 42 Pa.C.S. § 702(b) Interlocutory appeals by permission. See also Pa.R.A.P. 312, 42 Pa.C.S. An appellate court is authorized to exercise its discretion to permit an appeal from some interlocutory orders. 42 Pa.C.S. § 702(b). However, our Superior Court Internal Operating Procedures direct that petitions for permission for review are subject to review and vote by all of the commissioned judges. Int.Op.Pro. § 302(A). It is my opinion that the right of the full Court to review and consider whether to permit an appeal by permission serves purposes other than “delay.” Because I am unable to find any proper basis for this panel to proceed to entertain the merits of this appeal without further empowerment from the full Court, I must respectfully dissent from my distinguished colleagues’ decision.

For the foregoing reasons, I conclude that the Order of March 2, 1990, as amended by the Order of March 27, 1990, is not appealable as a final order under 42 Pa.C.S. § 742. Accordingly, I should conclude that we lack jurisdiction to consider the merits of the issues presented, and that we are required to quash this appeal.