*1 138A.3d DOUGHERTY, Appellant, John J. HELLER, Appellee.
Karen Supreme Pennsylvania. Court of
Argued May 9, 2016.
Decided June *2 Greiner, Joseph Podraza, Peter Esq., Esq., Andrew R. A. Sprague Richard Sprague, Esq., Sprague, Philadelphia, Esq., Starker, Feasterville, Brooke H. Alan Spigler, Esq., John J. Dougherty. Baughman,
Michael Esq., Amy Esq., E. B. Ginensky, Pep- L.L.P., per Hamilton, Philadelphia, Karen Heller. SAYLOR,
Chief WECHT, Judges Justice Justice COLINS, BROBSON, FRIEDMAN, LEADBETTER, STRASSBURGER.
OPINION PER CURIAM.
A special complement Supreme Court of Pennsylva- nia has been assembled to address raised in multiple issues a present objection These include appeal. threshold temporary judicial assignments to the challenge Court and a to a now-supplanted previously order had dismissed the addition, appeal. jurisdictional question a has been raised concerning pleas a common of a motion whether court’s denial for seeking, videotape a order advance a deposition, any public to restrain dissemination constitutes a subject as-of-right collateral interlocutory appellate order Finally, merits, on a challenge review. is maintained to the common court’s refusal to issue a pleas protective order proscribing such dissemination. Background
I. The underlying arising civil action is a defamation case out the defendant, a column Heller newspaper written Karen Inquirer (“Appellee”), published Philadelphia and commentary encompassed negative 2009. The text November Dougherty John J. plaintiff, actions of the purported about of the Internation- Manager the Business who is (“Appellant”), a Local 98 self- of Electrical Workers al Brotherhood civic and in numerous figure participant and a public described activities. philanthropic that the demonstrating information confronted with
When false, Appel- conduct was concerning Appellant’s commentary The apologized. publicly conceded the unfoundedness lee however, Facebook misinformation, appeared Appellee’s apology after the of time period for an indeterminate page sources third-party through available remained apparently later.1 years until several litigation few weeks present commenced
Appellant 15, 2012, Appellee February On publication. original after the videotape see deposition, a notice for his Appellant with served “[a]ny deposi- taking (permitting Pa.R.C.P. No. 4017.1 of course as ... as a matter tion oral examination upon month later. was scheduled one deposition”), which video pre- at the attorneys appeared of his and two pro- could deposition Before the place. time and designated however, controversy arose. ceed, footage that video expressed concern attorneys Appellant’s displayed deposition from the should resulting couched these lawyers The beyond litigation. purpose based, in they part, were explaining that variously, concerns upon prior public figure status as a on their client’s Ap- Appellee, and dealings Appellant, between the course See, e.g., dated March employer. media Statement pellee’s Heller, No. 00699 Dec. Term Dougherty *4 (C.P.Phila.) (reflecting the (“N.T., at Mar. 2012”), are the attorneys “[y]ou Appellant’s of one of observation to be of what we contend here because media and we’re figure”). Raising a public media of malicious conduct the unreasonable embarrassment unjust for potential column, publications are apology, and the specifics of the 1. The Dougherty Superior Court. See opinion of the developed in an en banc Heller, (Pa.Super.2014). 1 & 2 A.3d 1260 & nn. client, their counsel indicated that they require would assur ances that videotape would “be any used for other purpose released to any other parties third outside of relationship with filing this case or proceeding.” court 8-9; Id. at see also at 4-6,10,12. id.
Appellee’s attorney, for part, her repeatedly indicated that she intended to use the videotape solely for purposes litigation, and that she would all of abide her obligations under the Rules Civil Procedure and the Rules of Profes- sional 6, 11-12, Conduct. See id. at 16-17, 24-25, 30. She declined, however, to make specific commitment that was asked her. Counsel highlighted that given she had a month’s notice of the deposition, but that no objections had or particular been raised sought conditions throughout ensuing vein, time period. the attorney asserted that it was unreasonable for Appellant’s lawyers to make special demands at the See, outset a duly-noticed deposition. e.g., id. at 9-10 (reflecting the by Appellee’s remark counsel that she not “agree would to something when I haven’t thought it, I about don’t your are, know what concerns I haven’t clients”). spoken any my
Appellee’s attorney suggested arrangement then where- by the videotape deposition proceed as planned, would and she agree give would not to tape anyone for ten days, during which time could seek a order or other relief from the common court. pleas 12-13, See id. Furthermore, stated, 18-22. if counsel such motion were to filed, would she commit that there no would be dissemina- (“I’m tion of the video pending ruling. court See id. at 24-25 willing agree to go with videotaped forward deposition, to have deposition videotape basically remain you Allen[.]”). escrow until get ruling from Judge Appellant’s lawyers, however, See, this proposal. declined (“[Y]ou e.g., id. at 23 right do not have a to go ahead with a videotape for trial purposes you where will not that it agree only will be used those and not purposes turned over television.”). the news media to broadcast on In the discus- sion, one of Appellant’s attorneys follows, a expressed, as *5 court, he pleas involve the common because to
reluctance a order would unlikely protective it that was foresaw issue: go judge say hypothetically to to the inappropriate
[I]t’s counsel] ask may point [Appellee’s at some somebody to an to want do may or have inclination tape she legal proceedings. outside of tape with this something think, Judge? you doWhat me, just every to to like other going say is Judge Allen
And you to me when have an issue. judge, [c]ome at Id. 28. commit-
Nevertheless, a Appellant’s upon counsel insisted any party not to third would be released ment that the video com- whatnot,” permission from the televising “for or without agreement at In the of an mon court. Id. absence pleas terms, attorneys only permit their would specified their if deposition proceed in the it were participate client to n without Appel- unacceptable Since this was videotaping. 32-33, counsel, deposition was aborted. lee’s see id. deposi- videotape a motion to compel then filed Appellee 4017.1. She by Civil Procedure tion as authorized Rule in a rules, that, failing participate under the highlighted ground excused on the may deposition video failing to objectionable party “unless the discovery sought for a objection applied or has appropriate act has filed 4019(a)(2). Id. No. protective order.” addition, a was contended that order Appellee In “good failed to meet the Appellant had inappropriate, because See of Civil Procedure 4012. cause” under Rule standard 4012(a) ..., party motion (“Upon Pa.R.C.P. No. and/or shown, may the court make order which cause good ... from unreasonable requires protect party justice or embarrassment, expense[.]” burden annoyance, oppression, added)). deposi- issue, explained, At she was (emphasis public involving in a case matters public figure tion view, speculative embarrassment Appellee’s concern. content of dissemination of unknown possibility mere cannot “good constitute cause.” In this regard, Appellee referenced several decisions federal courts re which had orders, fused enter protective where the proponent failed “specific prejudice demonstrate or oppression that will be caused disclosure” “concrete reasons justifying protec *6 order,” tive as contrasted with “unverified fears.” v. Pia Media, Inc., Supernova (D.Utah 559, 560 2011); 275 F.R.D. cf. Dunne, 113, 118 (S.D.N.Y.2004) (“[W]hile Condit v. 225 F.R.D. recognized sound are bites Achilles heel of videotaped depositions, the fact that the may media tape may edit a that or may not be the parties released does not warrant protective order all barring public dissemination the video case,” (citations omitted)). tape in this Appellant responded with a cross-motion protective for a order. He emphasized Appellee that had admitted that she had made a false representation Further, about him. Appel lant asserted that there a long history acrimony was between Appellant Appellee’s and employer. Appellant media to explain continued that deposi none the seventeen other tions that had noticed in been conducted was case and/or accomplished, sought undertaken, was to be with video recording. of his position, also refer Appellant support enced decisions, although a series federal and state in these instances, See, protective granted. e.g., relief was Stern Cosby, (S.D.N.Y.2007); F.Supp.2d 417, 423 v. Wise Inhofe man, (Okla.1989). 772 P.2d position It was for Appellant’s good there cause was 4012(a)(3) protection under Rule “the because: there was distinct for possibility” videotape given Appel- misuse lant’s status public as a figure and substantial involvement activities; public and for political mischief was potential heightened, light of Appellee’s representa- status a media as tive and on account of history alleged acrimony; and Appellee’s refusal of in Appellant’s counsel acquiesce demand for pur- a commitment ulterior “strongly suggested] poses why videotaping plaintiffs defendant insists deposition.” Plaintiffs Relief in Cross-Motion Protective Additionally, 2009, at 7-8. No. 00699 Dec. Term
Dougherty, asserted that: sound bites non-eontextual, clips non-sequential film particu- could [videotape deposition be plaintiffs from status, devastating given public figure his larly Because a pending litigation. to this devastating specific from conse- is himself these figure protect unable public malice, actual courts proving to his quences due burden prevent this relief must issue “[t]o held have being this case malignment, prevent type 393-94; and, P.2d press[.]” Inhofe, at tried if video- very plaintiffs real possibility There exists use, portions for non-litigation tape deposition released out-of- out of context and that these will broadcast taint could context, portions deposition selected jury pool case. potential (alterations adjusted). Id. 8-9 alia, Furthermore, citing, to Nixon v. Administrator inter *7 Services, 2777, 425, 53 L.Ed.2d 433 97 S.Ct. U.S. General of First (1977), right Appellant privacy under the 867 claimed discovery yet of admit in the “non-disclosure Amendment Plain action.” judicial underlying into record ted in No. Dougherty, for Protective Relief tiffs Cross-Motion Nixon, at (citing Term at 9 433 U.S. Dec. avoiding in to “the (alluding at individual interest S.Ct. Roe, 429 v. (quoting of matters” Whalen personal disclosure (1977)))). 869, 876, 51 589, 599, 97 S.Ct. L.Ed.2d U.S. had an counsel Appellant Appellee’s contended Finally, to third providing from material obligation ethical refrain 3.6 (prohibiting of Professional Conduct per Rule parties “extraju making in from an litigation attorneys participating reasonably knows or should lawyer dicial statement of communication public means know will disseminated materially prejudicing will a substantial likelihood have matter”). adjudicative proceeding motions, court of common Following argument compel motion to granting Appellee’s an order pleas entered and denying Appellant’s motion for protective relief. The court directed to appear for a videotape deposition days. within fifteen
Appellant proceeded to file a notice appeal argue that, pending the appeal, the common pleas court was de- prived authority proceed further with the case. This position premised was on the claim that Appellant right had a to pursue interlocutory appellate review under the collateral 313(a) (“An order doctrine. See Pa.R.A.P. appeal may be taken as right from a collateral order of an administrative agency 1701(a) (estab- or lower (emphasis added)); court.” id. lishing general that, rule as “[e]xcept prescribed otherwise rules, these after an appeal is taken or of a review quasijudicial is sought, order the trial court govern- or other matter”). ment unit may no longer proceed further in the argument, After pleas the common court determined appeal right and, was not accordingly, impede did not 1701(d) further proceedings. See Pa.R.A.P. (authorizing jurisdiction courts of original proceed matter further a non-appealable which interlocutory has en- order been tered, notwithstanding the filing notice appeal). The court explained that, collateral, to be an order must meet the following requirements:
(a) The order separable collateral the main action;
cause (b) right The important review; involved is too to be denied (c) The question presented is that if such is post- review
poned case, until final judgment will be claim irreparably lost. Heller,
Dougherty No. 00699 Dec. Term slip op. *8 (C.P.Phila. 2012) 2012 WL 21, June (citing Pa.R.A.P. 313(b)).
In this framework, the common pleas court initially couched the issue as “whether the plaintiff, public figure, a can dictate the manner and use of discovery pursued by his opponent upon based an unfounded concern as to how the discovery may the court Although Id. litigation.” the instant used outside be deposition was videotape a abuse potential that the believed not that issue was merits, accept it did separable as-of-right interlocutory appellate justify toas important so Schwartz, 556 Ben quoted the court regard, In this review. is not that “it (1999), proposition for the Pa. 729 A.2d particular par- to the important the issue be that sufficient public rights deeply rooted ties[;] it must involve Mather at at hand.” Id. litigation the particular policy going beyond court not find pleas The common did at 552. 729 A.2d could videotape] “snipp[e]ts [of that assertions Appellant’s ridiculous,” expressions look [Appellant] to make be used in the breaks Appellant’s “gesticulations, of concern about to his nasal instance, attend may, ... he deposition where public policy. rooted in deeply matters passage,” represent to 4-5 2009, slip op. (quoting at No. 00699 Dec. Term Dougherty, 21). Rather, these the court deemed N.T., Apr. attenuated,” had they yet since be fears to “rather to have realized, and, event, to the court they appeared case. Id. applicability beyond present little that there was pleas The common court did also not believe loss, weight little the court accorded any irreparable since embarrassment, positing potential for while the described he has plaintiff, “should the video become fodder embarrass discussing this at 6. In grounds for another lawsuit.” Id. subject, plaintiff does “[t]he the court admonished may party manner in a right have a dictate the which limit unilaterally nor pursue discovery may party a course Id. compelling absent some reason.” dissemination the common protective order, of the motion for terms failed establish pleas court determined that had under Rule cause” to relief “good support requested 4012(a). explained The court as follows: order,
For motion for plaintiff prevail of events will accept the Court must the likelihood a series will First, the video occur. the Court find must inappropriate tick or capture gesture such as a other which is an extreme deviation behavior extraneous and/or
517 public other appearances by plaintiff[,] a public figure. Second, plaintiff wants the Court to assume that someone gain will access to this video during the litigation process. Third, the video will be reviewed embarrassing Fourthf,] content. the video will be altered by some form cyber chicanery thereby enhancing the embarrassing tick gesture. lastly And the Court is asked to assume the video will published or otherwise disseminated resulting “unreasonable embarrassment.”
Plaintiff acknowledges that any potential abuse the video would not affect the merits of this case. Plaintiff admits that there defamatory are several lawsuits involving the plaintiff and the defendant’s employer but fails cite to any instance where such an abuse as presently feared has occurred. Additionally, plaintiff conceded that number safeguards to prevent existed the type of harm envisioned. The Court that entering finds a protective order under these facts will a litigant’s right erode to conduct a deposi- tion [by] video, a right which been in Pa. has codified R.C.P. 4017.1(a). § (footnote omitted).
Id. at 6-7 the common pleas Given court’s determination no col- issued, lateral order had it once again Appellant directed appear for A deposition. three-judge panel the Superior Court, however, entered an staying order proceedings pending the of the appeal. outcome
Ultimately, panel agreed with that the com- mon pleas ruling court’s was order, embodied in a collateral but it nevertheless affirmed on the merits a divided memo- randum opinion. Appellant banc, requested reargument en however, which granted, was and the panel opinion was with- drawn.
The en Superior banc Court then divided, affirmed published opinion. Dougherty, See 97 A.3d at terms of jurisdiction, the intermediate court unanimously found that the common pleas court’s order was a one subject collateral as-of-right interlocutory appellate Initially, review. the court appeals disfavoring piecemeal policy
recognized general “the collateral order understanding and the concomitant Doe, Pa. (citing Melvin v. narrow.” Id. at doctrine is (2003)). Rae v. Pa. generally 46-47 See A.2d Ass’n, 65, 78-79, 977 A.2d 602 Pa. Funeral Dirs. rule and the (2009) judgment final general (discussing exception aas narrow of the collateral order doctrine status *10 downsides the substantial against must measured which be that it had never- explained The court piecemeal litigation). pretrial collateral order review granted previously theless interests were privacy an appellant’s which discovery orders Whetzel, 1112, 860 A.2d (citing at 1262 J.S. v. at stake. See id. Alston, A.2d 864 (Pa.Super.2004), Commonwealth 1117 (Pa.Super.2004)). 546 raised that had recognized Court Superior The independently claims that should be assessed two distinct centered, first, These the collateral order doctrine. under Appellant’s treatment of over- pleas the common court’s upon second, finding on the and, a privacy right, claim to arching lacking support was to issuance good that cause found Nevertheless, ultimately court the intermediate order. at 1263.2 “inextricably to linked.” Id. claims be these interrelatedness, focused its Superior the Court the Given which the court dynamic, on the reasoning privacy main line of claim. from See to his defamation clearly separable found be explained court regard, In this the intermediate id. at 1262. defamatory to whether was no need examine there aspect. the See id. addressing privacy made in statement was criterion, Superior Court alluded importance As Pennsylva- interests in privacy protections afforded “robust privacy pretrial nia,” right and concluded that are too categorization rights discovery within was (citation omit- at 1262-63 review. Id. important to be denied which ted). that the harm court also found The intermediate aside, however, strong argument recognized that "a the court 2. As an issue, merely questions the trial Appellant's which exists that second standard, good raises factual consider- application of cause court’s to collateral review.” Id. ations well-suited not
519 would be occasioned privacy loss would irrepara- ble, likening deprivation to a defamation defendant’s First right Amendment or a anonymity litigant’s property inter- est in a trade secret. See id. merits, however,
On the
the majority agreed with Appellee
the privacy interest
was
asserted
itself
controlling, and that Appellant had failed to
good
demonstrate
cause
support
issuance of a protective order.
Initially,
majority
noted that Appellant had failed to identify ade-
quately
origin
nature
this privacy interest. The
majority recognized that Appellant was
attempting
glean a
constitutional
Rhinehart,
right
Seattle Times Co. v.
U.S.
(1984),
S.Ct.
Rather, majority found, the the decision a privacy whether interest, of the by Appellant, order asserted is pro- afforded in discovery tection the appropriately context upon rests a demonstration of good per cause Rule of Civil Procedure lines, Along See id. these majority the indicated: view, In our the “good cause” standard an appropri- strikes interests, ate balance competing between including liti- (however gant’s privacy defined), interests they may First access, Amendment speech freedoms of and and the court’s obligations justice efficiently pre- administer vent of abuse the discovery process.
Id. of good-cause assessment, terms majority ex-
plained that Appellant had offered “little of in depth analysis,”
520 cause,” suggest appropri- “good failed to define
that he had it, factual proffer any or which to evaluate standard ate contention, references beyond to advance the evidence deposition counsel at the thwarted Appellee’s of statements claim of the defamation alleged support and the facts employer and her media Appellee assertion that (including the animus). that found it self-evident majority Id. The harbor required support protective is evidence more substantial risked, merely harm order, “must which address dissemination, suggested by an unsubstantiated risk regard, majority In this Id. at 1267. Appellant here.” which affidavits Stenger, Times and contrasted Seattle (citing presented. information had been See id. particularized 2204, Times, Stenger, at at S.Ct. Seattle U.S. 959). 86-87, According 554 A.2d at Pa.Super. sub- nothing comparable offered majority, Appellant had abused its pleas common court had suggest stance relief. declining to award discretion joined Judge Emeritus Ford Mundy, by President Judge jurisdictional concurring ruling Elliott, opinion filed an portion In the latter on the merits. dissenting but initially acknowledged Judge Mundy responsive opinion, governing appellate standard review the abuse-of-discretion original jurisdiction is discretionary rulings of courts J., (Mundy, A.3d at 1268 Dougherty, See demanding one. dissenting) (recognizing “[a]n abuse concurring and conclu- court has reached a exists when the [trial] discretion law, or when the misapplies or sion which overrides unreasonable, or the result judgement manifestly exercised Middletown prejudice, (quoting bias ill-will.” partiality, Stone, 595 Pa. 613 n. 939 A.2d v. Lands Twp. (interlineation (2007) in original)). n. 3 however, Judge Mundy credited ensuing analysis, In the by Appellee’s attorney resistance position that the Appellant’s *12 videotape the use of into a commitment to limit to enter regarding counsel’s own concerns deposition raised substantial Judge Mundy also ascribed See id. at 1272. intentions. Appellant was the deposition to the fact that the relevance
521 only one in the case to have been slated for recording. video Furthermore, See id. Judge Mundy history found that the litigation between Appellant Appellee’s employer— media as well as Appellant’s misrepresentation in her column and failure immediately to the commentary remove from Face- her book page and take measures to facilitate from removal third- party sources—also demonstrated potential that the video- tape deposition might be misused to cause “unreasonable annoyance, embarrassment, oppression, burden or expense” Appellant. Id. at (quoting 1272-73 4012(a)); Pa.R.C.P. No. (“In see also id. at my mind, the form of the underlying action, coupled with Appellee’s predisposition to disseminate Appellant’s deposition for non-litigation purposes par- and the ties’ cantankerous necessitates a relationship, intru- minimally order.”). Rule 4012 protective sive such, As the dissent characterized the common pleas court’s approach entailing as “manifestly unreasonable judgment.” Id. at 1274.
Appellant sought discretionary review from this Court the en order, banc Superior Court’s which granted was February Heller, 2015. See Dougherty v. Pa. (2015) curiam). (per
A.3d argument scheduled, Oral was course, ordinary for the September Court’s ses sion.
In August 2015, Appellee sent letters to sug- two Justices gesting that they should recusing consider themselves from participation in appeal for various reasons. Subsequently, recused, three which, Justices in view of two preexisting Court, vacancies on the left two only eligible Justices to hear and decide circumstances, the matter. In these the matter continued, was accordingly, was removed the Court’s September session list.
On October the two Justices who eligible remained to participate dismissing an order appeal entered having improvidently been granted.
Appellant timely filed a application reargument under Rule of Appellate Procedure 2542. that a asserted unauthorized, two-Justice since, view, order is in Appellant’s *13 522 a of requires quorum
judicial by Supreme action the Court of upon Rule In relied regard, Appellant four this Justices. 3102(d)(1) heard or judicial matter (“Any Procedure Appellate may court be deter- of an by quorum appellate a considered participated who judges of a of the majority action mined matter.”), and Section or of the hearing in the consideration 326(a) (“A 326(a) Code, majority § 42 Pa.C.S. the Judicial court.”); see a the also quorum Court shall be Supreme the 63.11; 3102(a); Supreme Ct. IOP § Pa.R.A.P. Pa.Code 210 con- authority, Appellant these sources of upon § 11. Based a proper to constitute required that four Justices are tended quorum. on the two Appellant’s position
It the vacancies was required not reduce the Justices did number Court counted. nor Justices be quorum, a could recused assemble satisfy remedy the explained that a Additionally, Appellant pre- extraordinary circumstances requirement, the quorum otherwise, Specifically, statute. provided by is sented and from the Judicial following provision the Appellant highlighted Code: reason of vacan- quorum.—Where by a to assemble
Inability impossible it is illness, otherwise cy, disqualification appro- place of a court at the time and quorum assemble as- therefor, judges temporarily sufficient shall be priate a duly court to hold permit court to signed of the court. transact convened session and business 326(c). prem- the central § maintained Pa.C.S. its had exercised that, duly-convened once the Court ise only an order appeal, to allow an discretionary authority dismiss it. majority quorum the Court could issued only two Justices Thus, the action of according Appellant, vires, and the order was entering an order dismissal ultra itself void ab initio. that the position reargument, taking
Appellee opposed of a case’s as of the time is quorum requirement determined Appellee this proposition, Court. For commencement Justice) (and Cappy’s opinion Chief referenced Justice later J., Larsen, Jan. (Cappy, Dkt.1992 re No. JIRB 1993). (“[I]t See id. at 3 n. 2 long has been established majority where a of the members Court decline to hear case, power decide the upon issue falls the remaining Court.”). member or members Appellee explained that Justice Cappy had upon single-Justice relied opinion in Mathms, Commonwealth ex rel. Carson 210 Pa. 59 A. (1904), for the stated proposition. See id. at 59 A. at (positing only where “one judge wholly free from interest, and, by fact, force of powers of the court *14 him”). necessarily upon devolve Accordingly, while recogniz- ing that Justice Cappy’s opinion was binding upon the Court, Appellee contended that the noted principle was other- wise embodied precedent.
On December 2015, two Justices entered order granting reargument and supplementing questions the pre- sented with the following query:
Where of appeal allowance occurs the of five votes Justices, but three prior Justices recuse to the being case presented on argument the merits via oral or submission on briefs, jurisdiction the does lie for the two remaining Jus- tices to dismiss the case as having improvidently been granted? per
Subsequently, Rule Judicial 701(C), Administration the Chief Justice tendered a request to the Court Administra- tor of Pennsylvania for for temporary judi- recommendations cial assignments to the Supreme Court to hear and consider appeal the under the terms of the reargument order. See 701(C)(1) (“Whenever Pa.R.J.A. No. a president judge deems judicial additional necessary assistance for prompt proper disposition of business, court he or proxy his shall transmit a formal request judicial assistance to the Admin- Office.”); 701(C)(2) istrative id. No. (“Upon the recommenda- tion of Administrator, the Court the Chief may, Justice order, assign retired, any former, or active ... judge to ... judicial temporary service on court to fulfill a request by president or to judge, inventories, reduce case or to serve the justice.”). interest of The Court Administrator consulted with the President Judges Superior and Commonwealth assist, willing jurists who were able and identify
Courts to narrow process selection a randomized then implemented presently participating. judges are five who the field appointment a formal order then entered The Chief Justice Docket, furnished which was Administration Judicial on the litigants. to Justices meantime, Appellant’s counsel wrote In the 701(C) procedure, Rule to the of the objecting use individually main- for relief application of a formal filing followed that Rule It challenge. Appellant’s position such was taining assignments 701(C) temporary not address does simply Court, only it in that Supreme on the quorum assemble no contains judge” “a requests president authorizes or Court. Supreme quorum requirement to a reference request- Justice had Chief Appellant complained also assignments, temporary “up five” ed recommendations concerning many assignments how authority there no but of a quorum. made in the can should be absence foregoing, suggested On account specific formal and might adopting wish to Court consider in instanc- judges temporary assignment procedures *15 quorum to impossible es in which it is otherwise assemble into cases Court, shoehorning than such Supreme “rather other existing designed rule to address courts circum- an to Pa. for Relief Pursuant Appellant’s Application stances.” of Judges Temporary Assignment Regarding R.A.P. 123 Relief’) V, Article Sec- Referencing at 2-3. (“Application 16(c) provides Constitution—which Pennsylvania tion justice judge may, or with his former or retired “[a] temporary Court consent, assigned by Supreme be Supreme rule of the may prescribed judicial service as posited Court[,]” V, 16(c)—Appellant § art. also Const, Pa. Justices of former retired temporary assignment that the or concerns conflicts to “alleviate serve as a mechanism would on other sitting judges assignment that could arise with Alternatively, it at 3. was for Relief Application courts.” jurists assignment temporary that the position Appellant’s to the Supreme Court should await the adoption of formal procedures specifically addressed to this Court.
Appellee, part, opposed for her the requested relief. She asserted that the Rules of Judicial Administration expressly permit the to Chief Justice make judicial temporary assign- ments, upon the Court recommendations, Administrator’s where doing so would promote justice. interests of See 701(C)(2). Pa.R.J.A. No. Temporary
II. Assignments Judicial Supreme
to the Court begin We our application review with the for relief contest- ing the temporary judicial assignments to Court, which will be following denied reasons. V, 10(a),
Article Section the Pennsylvania Constitution expressly empowers Supreme Court to temporarily assign judges from one court to another “as it appropriate.” deems Const, 10(a). V, § art. Consistent with this constitutional Pa. authorization, the Judicial Code also empowers Supreme Court to promulgate general rules judge under which a may be temporarily assigned to another court and there to “hear determine matter with like effect as if duly commis- sioned sit in 4121(a). § such other court.” 42 Pa.C.S. This general authority has particular when, application “by reason illness, of vacancy, disqualification or otherwise[,] it is impossi- 326(c). ble quorum § assemble a court.” Id. 701(C)
Rule of the Rules of Judicial Administration is general rule promulgated by the Supreme Court precisely execute its constitutional statutory powers temporarily assign judges to other courts “as it appropriate.” deems Pa. Const, 10(c). V, art. § The rule authorizes the Chief Justice enter order assigning any retired, former, or active judge judicial temporary court,” alia, service on “any inter justice. to serve 701(C)(2) the interests of See Pa.R.J.A. No. added). (emphasis *16 701(C)
That Rule
apply
should
this Court was
plain
made
Wetton,
in
(1994).
Commonwealth v.
538 Pa.
Justice judicial assignments authority its to make explored Court statute, court rules. The Court Constitution, and the under in now found Rule that is procedure specifically ruled 701(d) (at (2) by Rule and 701(C)(1) prescribed that time justice to the temporary (e)), assignment controls Wetton, at 527 648 A.2d See 538 Pa. Supreme Court. in (“Pa.R.J.A. Pointedly, the Court controlling.”). 701 is [No.] “the regarded is as that the Chief Justice Wetton observed of Rule purposes Court” Supreme president judge these and at 527 n. 3. For at 326 n. 648 A.2d 701. See id. legal propriety reasons, ratified Supreme Court other for temporary of Senior Justice Montemuro assignment of its in Rule 701. accordance with the Court service circumstance, name- 701(C) in this equally applicable Rule Supreme temporary as members assign judges ly, fulfilling quorum requirements purpose Court in Rule Nothing matter. dispose specific consider and rule 701(C) application warrant different would assign- temporary than circumstance was accorded Consequently, Justice Montemuro ment Senior proce- a different employ for the Court there is no reason suggested appeal abeyance, present or hold the dure 10(a) 16(c), Rather, V, Article Sections under Appellant. 326(c) 4121 of the Judicial Constitution, Sections Administration, 701(C) of Judicial Code, of the Rules Rule Wetton, procedures prescribed to follow the appropriate it was
527 by the for purpose rule the of fulfilling quorum the require- ments for necessary the Court consider and determine the pending appeal. That process was commenced properly through a request made to the Court Administrator on March 30, 2016, in culminating the ensuing, valid order of temporary appointment entered the Chief Justice.3 Sustainability
III. The of the Dismissal Order In the supplemental briefing, Appellant maintains that two Justices lacked the authority to enter the order dismissing his as appeal having been improvidently granted. Appellant reit- erates position laws, his that statutory the Rules of Appellate Procedure, Supreme the Court’s Internal Operating Proce- dures, long-established of order, rules and common sense all dictate that a validly appeal authorized cannot be dismissed the authority less than a quorum. Appellant rejects also position Justice Cappy the Larsen matter and the single-Justice opinion in Mathues inconsistent with such controlling authority.
More specifically,
326(c)
according Appellant, Section
the Judicial Code makes clear that a quorum is
required
order to “transact
court,”
business of the
42 Pa.C.S.
326(c),
§
which by definition includes actions
taken
Court on the appeal after
Furthermore,
commencement.
Appellant stresses that the statute furnishes
remedy
form of temporary judicial appointments to address circum-
stances in which the
Court
unable
assemble a proper
See
quorum.
Appellant
id.
references Commonwealth v.
Petrillo,
33,
Pa.
(1940),
340
16
60
for
A.2d
that
proposition
the number of the Court cannot be
legally
“reduced below that
for
required
the transaction of its
48, 16
business.” Id. at
at
Appellant
A.2d
58.
also cites United States v. Aluminum
America,
(1943)
Co.
64
U.S.
S.Ct.
monwealth 307 Pa.Super. 453 A.2d (1982) order). 1005 (setting forth text of the the Court’s event, we Section 326 of the find be Judicial Code to materially consistent this Court’s pro- with own rulemaking nouncements in respects. relevant 42 Compare Pa.C.S. 326(a) (“A § majority of the Supreme quorum shall be a Court (“A of court.”), Supreme § with IOP 11 of majority Ct. Court.”). Court shall quorum a question be The remains, however, of what is meant Supreme “the Court” ie., “the in Court” all of these authority, sources of whether these references are the entire authorized mem- bership, or to complement of all sitting a lesser Justices irrespective of vacancies.
580 in be Section that the answer can found
Appellant suggests Supreme Code, provides “[t]he 501 of the which Judicial of the Chief Justice consist of Pennsylvania of shall Court 501; § justices.” Pa.C.S. Pennsylvania and six associate 2(b). however, V, note, § art. We accord Pa. Const. point designate reference explicitly language does a or establish a is to determined quorum from which be in statutory as occurs quorum requirement, particularized See, § 1 U.S.C. jurisdictions. e.g., 28 authority many of other of a consist (“The of the United States shall Court Supreme justices, associate eight of Justice the United States Chief (emphasis quorum”) shall constitute a any six whom 46(d) (“A majority [federal of the number added); § id. a or panel to constitute court judges authorized court] circuit VI, art. III. shall constitute quorum.”); thereof ... Const. (“Four and the concurrence quorum § Judges constitute 6, § 2 Const, art. decision.”); for a necessary four is Cal. “[cjoncurrence present of 4 judges (providing setting an effective necessary judgment,” is argument Indeed, venues, judges). of four some requirement quorum See, is, fact, determinative. sitting Justices the number (“A justices sitting majority § 602.4101 e.g., I.C.A. is not a justices than three fewer quorum, constitutes a but added)). quorum.” (emphasis internal reasons, statute, our own we find the
For these appear ambiguous. There would procedure, be operating either, “almost intention, from the depart no to be provides which principle, common law universally accepted” majority simple of a that, majority quorum “a constituted F.T.C. body.” to act for the body empowered a collective Prods., Inc., 179, 183, 389 U.S. 88 S.Ct. Flotill Nevertheless, added). (1967) even (emphasis L.Ed.2d law, body” would seem common term “collective within it to the of whether refers fixed terms ambiguous to sitting complement membership of the full number members. See Erioson, Robert’s *20 lines). these
531 The more approach, conservative which we now find to be appropriate, is to determine quorum according to the Court’s full authorized complement.4 This better serves to increase the chance that the decision of the participat- Justices ing any given case representative will be seen as of the body, collective enhancing thus the legitimacy result, of the the decision-making process, and the Court Nash, itself. See Emory Wasn’t, Majority The That L.J. at 840-41 (citing, 58 alia, Proceeding inter Luther Cushing, Rules of and Debate (Boston, Thompson, Brown & 20 in Deliberative Assemblies Co. rev. ed. 1879)).5 Although affirmation of expressions from Larsen and promote Mathues would expediency, we agree with that the approach an lacks adequate foundation in law and policy.
Appellant also correctly highlights that Court business need not come to a standstill if a quorum is immediately present, authority since is vested the Chief Justice to Accord, Slotkin, e.g., Negri (1976) 4. v. 397 Mich. 244 N.W.2d 99 (explaining that four of seven Justices of Michigan Supreme Court quorum, constitute a discussing while also passage, court's recent time, through period an extended of complement without a full Justices); Nash, Wasn't, (charac Majority The That 58 at 844 L.J. Emory terizing establishing quorum requirement federal statute appeals federal majority courts judges “[a] of the number of panel authorized to constitute a or court thereof” as an embodiment 46(c))); quorum (quoting the common law § rule 28 Lymer U.S.C. cf. Kumalae, (1926) (recognizing Haw. split authority a concerning quorum requirements pertaining government to local bod ies, concluding majority but "a of all of the members of the board majority provided by means a of all members majority law and anot added)); existing of the members at the (emphasis time action is taken” ("Unless (2016) 73 C.J.S. Public § Administrative Law and Procedure prescribed, otherwise the total number of members on a board is not abstention, resignation, reduced an vacancy.”). or see But Mason’s (2010) ("[Wjhen Legislative § 501.1 there is a Manual Procedure vacancy, special provision applicable, unless quorum will consist majority remaining qualified.”). of the members A, (Alaska 2013) State v. Doe (discussing 297 P.3d Cf. 106(b), import Appellate of Alaska’s provides Rule which ”[i]n appeal that is only supreme justices decided with three five court participating, any point appeal issue that the court decides only purposes two-to-one vote is appeal, decided shall effect”). precedential not have *21 see 701(C), assignments, Pa.R.J.A. No. temporary
effectuate occurred as has here.
Thus, hold, governing in absence of express the we quorum Supreme a Court authority contrary, to the appeal of Perhaps present four Justices.6 the dismissal the is Justices, there accomplished by three were might have been vote. See 3102(d)(1) to Pa.R.A.P. remaining eligible three of (“Any judicial by quorum heard a an matter considered by majority court of appellate may determined action be judges hearing who in the or consideration of participated the matter.”).7 only by decision two the Since the was made however, been in Justices, we find it have error. surrounding gives conceptual The above to a the rise issue Here, treat reargument of the grant by two Justices. we essentially since reargument being superfluous, order as the nullity in directive of should deemed a preceding dismissal be the first instance. response dissenting portion Judge Strass- the
burger’s responsive with his opinion, strongly disagree we the present, fully position complement authorized Supreme Court here quorum should not decide issue Obviously, quorum likely concerns more now. are arise recent turnover on fact of given the Court the concomitant judicial they elections and the inevitable activities fundraising concerns, not course, surface Additionally, entail. such do majority a is to decide cases. whenever Justices available Accordingly, that, legal it seems if issues likely most attending quorum authorita requirements going are be by at tively Supreme by at least a decided all Court fairly Notably, procedural overtly various rules limited establish range upon may of circumstances in which decisions be made lesser See, 123(e) single- participation. e.g., (providing forms of Pa.R.A.P. contexts); (same). rulings in No. Justice certain id. (1987) (indicating Law, § 10 that "[i]n Parliamentary Am.Jur.2d, 7. Cf. quorum contrary, express regulation the absence to the when cast, majority present proposition by a and it is is carried of the votes votes, necessary quorum exercise least a cast since the law-making power stopped and inaction of is not mere silence (footnotes omitted)). present.” some who are quorum jurists, it will in a setting be which there have been temporary assignments. Along lines, these the fact that quorum question has avoided authoritative resolution throughout decisional law history in Pennsylvania should serve illustrate its elusive character.
We also not regard present do our decision as dictum. Appellant’s objection to the lack of a quorum supporting the dismissal order specifically framed, was in the reargument application, as the basis why the appeal should resurrected. Indeed, as reflected order, Court’s ensuing reargument granted was precisely resolve that Although matter. retrospect—and with the hindsight deriving from our present *22 review—we are to regard now able the dismissal as order void, absent the grant two-Justice of reargument, such invalid- ity would have remained entirely theoretical and dormant.
In words, other the proceedings flowing from the two- Justice dismissal and subsequent reargument orders have had real world consequences, as Thus, does our decision here. we reject Judge Strassburger’s contention that those conse- quences—or even the interest in providing a expla- definitive nation for why the has appeal survived the dismissal—are insufficient to support resolution.8
Finally, we also differ Judge with Strassburger’s position that some form of modesty, as depicted opinion his through rejoinder, Judge In Strassburger opinion ignoring criticizes tins complement the Supreme fact that the full may elected Court Justices quorum fact, through rulemaking. address the issue point In as above, already discussed the Court has done so. See Pa.R.A.P. 3102 “Quorum (entitled Action"); Supreme and (captioned § Ct. IOP "Quorum”). certainly While the rules could be clarified to elaborate on quorum requirement, the represents the decision in this case a material necessary jurisprudence advancement of the in this area of the law parameters that bears on the rulemaking the authority. Court's decision, regard, per In this our the elected Supreme Justices of the not, Code, Court could consistent with Section 326 of the Judicial modify "last-judge-standing” the rules to embrace the approach re-
flected in and favored Cappy, overruling Mathues Justice absent an of this decision or a determination (given that Section 326 is invalid our existing determination that Section 326 the generally require rules majority quorum at least a support decision-making of four to Court). part Supreme of the have imagery, judges should restrain who been fairytale assigned performing temporarily Supreme Court they the main were summoned undertake. one of functions Application Collateral Order Doctrine IV. jurisdictional Although upon applica- issue centered in the presented tion of the collateral order doctrine was in her Appellee for allowance of raised it petition appeal, jurisdiction in original counter-statement of her brief.9 She order “is to be emphasizes the collateral doctrine inter- clearly present.” each ... must preted narrowly, prong Syken, Brief for at 1 587 Pa. Appellee (quoting Vaccone v. (2006), superseded grounds A.2d on other 1114(b)(7)). by Pa.R.A.P. further maintains the order the court
Appellee issue, pleas separability prong, common fails the because into framed merits of his defama- Appellant, as “wades explains: tion ease.” Id. She argues that same defamation
[Appellant] alleged he animus that asserts the basis for his lawsuit constitute He has good cause order he seeks. thus inextricably dispute intertwined this with the mer- discovery its, same facts relevant to making the both. at 2.
Id.
that,
importance,
Appellee’s
it is
position
terms
“al
*23
litigants’
his
though
styles
appeal
championing
[Appellant]
appeal
interests in
his
fails
privacy
pre-trial discovery,
have
prong
litigants for decades
been
importance
because
they exist,
really
what is
well-served
Rules as
at
is
own
circumstances war
[Appellant’s]
unique
issue whether
Appellee
here.” Id.
rant
order
references Genivi
Frisk,
589,
(1999),
v.
Finally, Appellee that Appellant asserts cannot establish that his right claimed will be lost irreparably absent appeal. She explains that Appellant’s counsel will have the opportunity lodge appropriate objections at a deposition and, if necessary, make appropriate motions afterwards for protection upon based concrete information than rather con- jecture. She concludes:
If [Appellant’s] videotaped deposition proceeded, it is pure speculation that he would have lost anything; nothing pri- may asked, were, vate have if been it may counsel have agreed protect video, portion or the court could have a portion ordered This appeal sealed. is not only interlocutory, it’s premature.
Brief for at Appellee
Appellant’s response is substantially consistent with the en Superior banc holding, Court’s namely, the assertion of privacy interests videotape relative to a deposition presents a separable, important controversy, as to which the concern will irreparably impaired. be Appellant that, if maintains even no improper questions are deposition, Appellee asked “and her counsel would nonetheless ability have the to embarrass [Appellant], him look making foolish through selective editing splicing the videotaped deposition.” Reply Brief for at 7 (citing Cosby, 529 at 422 F.Supp.2d (noting that can easily “videos more they be abused as can cut (inter- spliced and used as on the evening ‘sound bites’ news” omitted))). nal quotations Appellant also cites Cooper Schoffstall, 588 Pa. 510 n. (2006), 905 A.2d n. support proposition Pennsylvania courts routine- ly have discovery held that implicating important orders priva- cy rights immediately are appealable. outset,
At the we respectfully differ with the en banc Superior Court’s position that the mere of privacy assertion *24 as- implicate be found discovery related to should
interest stresses, As Appellee interlocutory appellate review. of-right in narrowly, is to be administered collateral order doctrine policy the general undermine unduly which does not a manner Rae, 78-79, 602 Pa. at appeals. See piecemeal against procedural clearly rules Although 1129. the civil A.2d at embarrassment, annoyance unreasonable against protect claims of 4011(b), 4012(a), accept that Pa.R.C.P. Nos. see stage as-of-right appeals pretrial rise to give such order initial, favoring unitary reso- policies undermine would being in free Couching trial level. the interest lution at the of privacy terms does annoyance and embarrassment this assessment. not alter of an assertion
Accordingly,
accept
cannot
we
discovery order
transform a
privacy concern should
attendant
right into a collateral order
appealable by
is not
that otherwise
Instead,
review.
interlocutory appellate
subject
as-of-right
must
concern
issue
specific privacy
we find
importance requirement.
adjudged
satisfy
evaluated
among
the distinction
different orders
regard,
we make
interests,
magni
as those of a constitutional
such
privacy
statute,
with
by
compared
as such
lesser
recognized
tude
contrary approach
that a
would
Again, we believe
interests.10
by Appellant,
example,
Cooper
involved a
decision cited
The
returns. See
privacy
in information contained
federal tax
interest
508-09,
Such information made
Cooper,
In this regard, none the specific privacy recog interests by nized this Court or the Supreme Court of the United States are implicated by the prospective deposition in As this case. Stenger, delineated in these interests include an individual’s “right alone,” to be let 530 Stenger, 435, Pa. 609 at at A.2d 801 alia, (citing, Brown, Carey inter 455, 471, 100 447 U.S. S.Ct. 2286, 2295, 65 (1980)), L.Ed.2d 263 as well as his interest in independence in making types certain decisions important and in avoiding of personal disclosure information, see at id. 434, 609 at A.2d 800 (quoting Roe, 589, Whalen v. 429 U.S. 599-600, 869, 876-77, 97 S.Ct. 51 (1977)), 64 L.Ed.2d which “impugn could his subject character and him to ridicule or persecution.” Id. the balancing of rights and interests inherent in civil justice our system, however, individuals are compelled day to every submit to depositions, including those video, taken which are becoming staple of the modern litigation environment. In such context, judgments concern ing the of discovery left, conduct are instance, in the first of original jurisdiction. Times, courts Accord Seattle 467 36, at 104 U.S. at 2209 S.Ct. (remarking that, under federal (i.e., qualified otherwise have categorically deroga- would an order in privilege premised doctrine)— tion of a product claim on the work explaining “the collateral order narrowly doctrine is to be construed in order to buttress the recognition final order doctrine and party that a may interlocutory seek appeal by permission pursuant Appellate Rule 312.” Id. at 86 at 780. A.3d acknowledge 11. We "importance” necessarily imprecise. As judgments with other determining jurisdiction, which be must made in discernment, the assessment entails an against exercise in measured EQT DEP, developing case law. Accord Prod. Co. v. 634 Pa. 620- (2015) (making n. point 758 n. A.3d relative to the relief). governing standards availability declaratory ir- This uncertainty remediable relative to certain varieties orders counsels in pursuing permissive favor of appeal also protective track aas measure. See 20 West’s Pa. Darlington, McKeon, Brown, Schuckers & (2015) (“In § analyzing 313.1 may orders that Appellate Prac., Practice appealable doctrine, under the ‘collateral order’ if there is doubt order, as to appealable whether an order is as a collateral both a petition permission appeal appeal notice should be filed.”). the trial rules, conferred] on [is “broad discretion procedural position court is the best court[,]” trial “[t]he because parties interests fairly competing needs and weigh discovery”). affected was type of a which best ruling fact that the issue is
The
court—and
pleas
of the common
in the discretion
invested
in the
delay
to a
intermediate
give
prolonged
rise
should
occurred)—is
(such
apparent
made
as has now
proceedings
of each
in favor
militating
the various factors
considering
On
order.
advisability
terms
party
side,
a self-admitted
upon
does center
Appellant’s
case
history
certainly
there is
misrepresentation by Appellee,
employ
media
litigation involving
Appellee’s
J.,
(Mundy,
concurring
Dougherty,
A.3d at 1272
See
er.
*26
It is also rele
(summarizing
history).
such
dissenting)
are not
interrogatories
“pretrial depositions
vant
that
Times,
at
467 U.S.
of a civil trial.” Seattle
components
public
Capar
generally United States
33,
To our
presented
these and other factors
demon-
strate, vividly, that
pleas
the common
ruling
court’s
of an
was
individualized,
Condit,
generally
fact-sensitive nature.
See
media
seems
Appellant
It also seems relevant that
agreement
did not seek an
deposition,
relief in
obviously
advance of the
and/or
Indeed,
rules,
per
applicable
should have been done.
if
even
relief,
sought judicial
deposition
gone
had
have
should
*27
forward in
restraining
the absence of a court order
it. See Pa.R.C.P.
suggestion
Appellant’s
No. 4013. The
of
they
counsel that
did not
any
securing
agreement
believe there would be
issue
an
their
on-the-
demands, see,
N.T.,
2012,
16,
spot
31,
("I
e.g.,
thought
Mar.
at
never
requesting something
for a minute
you
agree
that it was
that
wouldn’t
second.”),
just
particularly
in a
seems
under-informed.
In this
respect, Appellant portrays
relationships
historically
involved as
ones,
parties’
acrimonious
both
and
briefs make reference to other
litigation
See,
over
e.g., Cosby,
non-dissemination orders.
421-22;
Enters.,
348-50;
F.Supp.2d
Paisley
at
F.Supp.2d
Park
at
Condit,
infringe upon Appellant’s of dissemina possibility the mere largely upon ment—based type insufficient to raise the content—is tion unknown under the denied review” important is “too issue which Rae, at 1124. 602 Pa. 977 A.2d order doctrine. collateral judicial temporary challenging for relief The application for purposes Court Supreme made to the assignments is denied. resolving appeal vacated, present Court is Superior The order of the one, interlocutory unauthorized appeal quashed common pleas to the court. matter is remanded WECHT, Judges SAYLOR, Justice Senior Justice Chief LEADBETTER, Judge FRIEDMAN, COLINS, the Per BROBSON, join Judge STRASSBURGER and Senior to Parts I and II. Chief Justice respect Opinion with Curiam COLINS, WECHT, Judges SAYLOR, Justice Senior LEADBETTER, Judge BROBSON FRIEDMAN, Part III. Chief Opinion respect with join Per Curiam say agree entirety of the common with the is not to that we This Indeed, possibili- that the pleas that court’s assertion court’s rationale. remedy abuse ty of as a another defamation suit served factors, ignores, among risks process the burdens and discovery other very proof pertaining high litigation, by the standard exacerbated See, involving public figure plaintiffs and media defendants. in cases Pa., ofE, 592 Pa. 83- e.g., Sys., Am. Future Inc. v. Better Bus. Bureau (2007). 923 A.2d *28 SAYLOR, WECHT, Justice Justice Judges and Senior join LEADBETTER and STRASSBURGER the Per Curiam respect to Opinion with Part IV. Judge
Senior LEADBETTER concurring files a statement. Judge a concurring Senior STRASSBURGER files and opinion, dissenting dissenting with the portion pertaining Part III Opinion. of the Per Curiam Judge files a concurring
Senior and dissenting COLINS opinion, joined by Judge FRIEDMAN, Senior with the portion to Part of dissenting pertaining IV Per Curiam Opinion. Judge
Senior FRIEDMAN files a concurring dissenting and opinion, dissenting portion pertaining with Part IV Opinion. Per Curiam
Judge concurring dissenting BROBSON files and opinion, with pertaining to Part dissenting portion IV of the Per Opinion. Curiam LEADBETTER, Judge concurring.
Senior I join opinion in the I thoughtful court. write that, separately simply emphasize with respect doctrine, prong appellant’s second the collateral order as- too simply speculative serted claims harm are to evaluate. deposition gone Had the forward some concrete occurred, invasion privacy application substantial might However, in order. doctrine have the present been say posture it has impossible appellant any interest at all to let alone one “too protect, denied important review.” STRASSBURGER,
Judge concurring dissenting. I join (Background), in Parts I (Temporary II Judicial Court), Assignments to the Supreme (Application IV Doctrine) of I Majority the Collateral Opinion. Order (The Sustainability would not reach Part III of the Dismissal Order).
A. Order Doctrine Collateral long application I a strict the collateral have advocated *29 See, Segal Inc. v. e.g., Enterprises, Strausser order doctrine. Morel, Inc., 292, (Pa.Super.2014) (citing 89 299-300 & A.3d Auth., 360, Pa. 248 A.2d Twp. Collier Mun. 432 Calabrese v. (“It (1968) 236, (O’Brien, J., dissenting) important is more 238 bifurcated, trifurcated, the chaos inherent prevent to mistake than it is to correct each appeals multifurcated occurs.”)); it trial court the moment Commerce Bank/Harris- (“ Kessler, 737 ‘The burg, (Pa.Super.2012) N.A. v. A.3d upon only foisted the courts can be termed a appeal bifurcated appear a to judicial Hydra. that Hercules could ... Would Case, [430 monster.’ Condemnation Pa. slay this Hession (1968) (O’Brien, J., 273], dissenting).”). 242 A.2d results scenar- narrowly Failure to construe the doctrine years the instant are six one-half out ios like one. We a filing complaint, and nowhere near trial. from the the court, a Assuming every are made trial mistakes court. appellate need be at once an The mistake corrected Williams, 624 Majority to Pa. learned cites Commonwealth (2014), undertaking A.3d 771 as a recent enforce the at 534 n. high Majority Opinion, collateral order threshold. n. is hope undertaking at 9. us that success- 138 A.3d Let otherwise, justice justice delayed will be denied. ful because Majority I with order fully agree appealed prong tripartite not meet the of the collateral importance does individualized, “of test it was fact-intensive order because Id., op. 539-40, 138 A.3d at nature.” Sustainability of the Order
B. Dismissal sustainability I would not reach the issue justices purported order. to dismiss the appeal dismissal Two Likewise, granted. justices purported improvidently two justices reconsideration of that dismissal. two grant Whether quorum, or do not the same quorum constitute constitute action, If justices two are insufficient take result obtains. justices If two are sufficient to remains appeal pending. dismissed, action, reinstated on appeal take is but then docket when granted by reconsideration vote two justices, and, again, appeal Thus, once pending. remains there is no need this hypothetical question. consider My joinder in II of Part the Majority Opinion evidences my that the five intermediate court appellate judges, belief chosen randomly, permitted are legally we, sit on this Yet case. Fortuitous sit Five, so because it is necessary the case However, to be decided. it forgotten should not once midnight us, i.e., the clock strikes once this appeal is decided, longer coachmen, we are no horses or but we return For issue, to mice. us to a hypothetical pure dictum, decide (later contrary Justice) holding the late Justice Chief Larsen, Cappy In re No. 155 Dkt.1992 (Cappy, JIRB J. Jan, 22, 1993), unnecessary is both and ill-advised. Majority correctly
The learned out points quorum issues, although infrequent, tend to arise as result of recu- *30 Thus, argument goes, judges sitting by sals. the temporary assignment may quorum well have to sit to the decide issue. ignores is the Supreme rules, What Court makes the and can quorum by by decide the issue a rule considered all (six today) judges. seven elected or duly appointed Thus, I respectfully Majority’s dissent from addressing the this issue. COLINS, Judge concurring dissenting.
Senior and I join I, II, III, in and parts respectfully and dissent from scholarly majority conclude, IV the I as part opinion. does Judge dissent, in Brobson his this Court should decide the two issues that accepted appellate were review the February granting 2015 allocatur. Due to the impor- Order rights tance these issues well as the First Amendment implicated by questions presented, the I hold that would these issues are “too review” under important be denied the Pennsylvania collateral order doctrine. See Rae v. Funeral Association, (2009). 602 1124 Directors Pa. A.2d 977 Furthermore, merits, I dissent from agree with the the Heller, decision, Superior Dougherty Court’s en v. 97 banc (Pa.Super.2014), by Judge Mundy A.3d 1268 authored 544 The Elliot. Emeritus Ford joined Judge President by relief the limited by denying its discretion
Trial Court abused
I
on the merits.
accordingly, would reverse
sought;
4012(a)
governs
Procedure
of Civil
Pennsylvania Rule
part,
in relevant
provides,
orders and
protective
issuance
from whom
person
or
party
motion
a
[u]pon
shown,
cause
sought,
good
is
deposition
or
discovery
justice requires
make
order which
may
court
annoyance,
or
person
unreasonable
protect
party
a
embarrassment,
expense.
oppression, burden
4012(a).
“good
cause” standard
Use
Pa. R.C.P. No.
is
order
protective
a court should issue
whether
evaluate
our
and the standard
among
sister states
near universal
courts
accordance with
federal
applied
likewise
26(c).
26(c). Fed R. Civ. P.
Rule of Civil Procedure
Federal
(Appellee)
and Karen Heller
Dougherty (Appellant)
John J.
precedent applying
offered
abundance
have each
jurisdictions
support
from myriad
“good cause” standard
order.
against
protective
for and
arguments
respective
their
are
alone there
Appeals
Courts
the United States
Among
“good
on what constitutes
conflicting
views
varying tests
making
factors that
should be considered
cause” and
See, e.g., Bond v.
order.
to issue
determination
(7th Cir.2009);
City
Utreras,
v.
Kamakana
585 F.3d
(9th Cir.2006);
Honolulu,
Chicago
1. Section of Article I Pennsylvania of the provides, Constitution part: relevant printing press The every shall be person free to may who undertake to proceedings Legislature examine the of the any or govern- branch of ment, no and law shall be ever made to right restrain the thereof. The free thoughts communication of opinions and is one of the man, rights every invaluable and may freely speak, citizen write print any subject, and being responsible for the abuse of that liberty. I, § Pa. Const. Art. 7. Section 11 of Article of Pennsylvania Constitu- provides: tion open; All every courts shall be injury man for an him in his done lands, goods, person reputation or remedy by shall have due course law, right sale, justice administered without denial or delay. may brought against Suits the Commonwealth in such manner, in such and in Legislature may by courts such cases as the law direct. I, § Pa. Const. Art. The First to the United States Amendment provides: Constitution Congress respecting religion, shall no law make an establishment of thereof; prohibiting or the free abridging or exercise freedom speech, press; right or of people or peaceably assemble, petition grievances. and to the Government for a redress I, U.S. The Const. Amend. Fourteenth Amendment to the United States provides: Constitution further persons States, All bom or subject naturalized in the United thereof, jurisdiction are citizens of the United States and of the they State wherein any reside. No State make or shall enforce law abridge which privileges shall or immunities citizens of the States; life, United any deprive shall any person liberty, nor State law; property, process deny without due person nor jurisdiction within equal protection its of the laws.
U.S. Const. XIV. Amend. *32 546 mutable; the necessitat-
A is circumstances protective order from being a order to information ing protective prevent may to trial no non-litigation purposes prior disseminated has litigation exist once trial has or longer commenced Likewise, to in party resolved.2 a that seeks intervene been subject to have order litigation protective information to a may “good the court’s public change dynamics made analysis protective cause” result rescission where a Moreover, may good order.3 a court find cause gleaned a to shield party seeks blanket order all information dissemination, discovery but during possible from view or find Laboratories, See, International, 544, e.g. F.3d Baxter v. Abbott 297 2. Inc. Cir.2002) (7th ("Secrecy stage, the discovery 545 is fine at before the documents, usually judicial enters record. But a material those discovery, underpin judicial subset of all small that influence or open public inspection they decision are to unless meet definition long-term categories confidentiali trade secrets ty.”) other of bona fide omitted); (internal Bridgeport also citations see Rosado v. Roman 1, 656, 677, 684, Corp., 292 693 Catholic Diocesan (2009) (Rosado Conn. 970 A.2d II) sealing (granting part request to vacate order shielding majority withdrawn, had been settled and of documents filed cases that minors); alleged clergy which had sexual Rosado abuse 168, Bridgeport Corp., 884 v. Roman Diocesan 276 Conn. A.2d Catholic I); TheStreet.Com, 222, 981, 227, (2005) (Rosado F.3d 1008 S.E.C. v. 273 (2d Cir.2001) (permitting 233-234 media intervenor access to Inc., sealed); Poliquin Way, depositions previously 527, 989 v. Garden F.2d (1st Cir.1993) following (modifying protective 533-535 order set (vacat tlement); 552, (S.D.Ind.2003) Felling Knight, 211 F.R.D. 555 following ing protective settlement). barring tape depositions order release video Court, See, II; I; e.g., Republican Appeals 442 Rosado Rosado Co. v. 218, (2004) by petition (upon 812 894-895 civil Mass. N.E.2d employed "good analysis plaintiff newspaper, the court cause” to order, impoundment disclosure of prevented vacate an which had years prior support submitted eleven search warrant material alleged priest committed sexual of children within his have abuse 1175, 1179-1183, Kamakana, (affirming ministry); at 1186 447 F.3d following protective order to unseal docu- modification settlement non-dispositive upon dispositive motions motion ments attached Works,Ltd., Jepson, newspapers); intervenor Inc. v. Makita Electrical Cir.1994) (7th "good (holding no there was 30 F.3d releasing pretrial protective prevent party cause” for a order nonparty Com- deposition of to the United States Trade International mission); Pansy, (permitting F.3d news- intervention remanding "good papers district court if cause” to the determine preventing order release of settlement existed to maintain Co., agreement); Corp. v. 905 F.2d United Nuclear Insurance Cranford (10th Cir.1990) (modifying protective access order allow intervening litigants). discovery materials collateral “good protection cause” where sought for a narrow subset of documents, such as personal identifying information of non- parties.4 matter, the instant sought by relief Appellant before
the Court of (Trial Common Pleas of Philadelphia County Court) was narrow in scope; Appellant did to place seek under seal the contents of testimony given at his deposi- tion; rather, he sought merely prevent the visual record from being disseminated prior to trial for non-litigation pur- poses.
The column at the heart of this as matter written and published by (November Appellee was egregiously 28, false. 2009 Philadelphia Inquirer Article by Appellee, Reproduced (R.R.) 39a.) Record such Publishing piece, defamatory relying on solely the unverified of individual, assertions one would certainly allow a reasonable trier of fact draw inference of 66a.) malice. (Appellee’s Deposition, R.R. at The inference of a hostile intent is buttressed the amount of by time that Appellee allowed her false statements to live on as links posted on her social media pages and employ- within her 69a-70a.) er’s online archives. R.R. at Moreover, {Id. of existence animus finds further support litigious history Appellant between and Appellee’s employer at the of time as publishing, well as Appellant between Appel- lee’s showing by counsel.5 This Appellant—Appellee’s false See, Co., e.g., Apple Ltd., 1214, 4. Samsung Inc. v. Electronics 727 F.3d (Fed.Cir.2013) 1226-1228 (applying precedent from within the Ninth Appeals Circuit Court regional of permit law the circuit to small subset of documents to remain permanently following sealed trial); Co., 1122, v. State Farm Mutual Insurance Foltz 331 F.3d (9th Cir.2003) (overturning protective blanket requiring order and showing "good defendant to make a cause” for each document for sought continuing protection); which it First National Bank Citizens Insurance, Co., 943, (7th Princeton v. Cincinnati 178 F.3d 944-945 Cir.1999) (reversing protective order issued the district court because "[t]he order is so loose that it giving parly amounts ... each portions carte blanche to decide what kept of the record shall be secret. invalid.”); Such an order is Thompson, Glenmede Trust Co. v. 56 F.3d 476, 479, (3d Cir.1995) (holding 484 & n. 13 petitioners that failed to "good order). demonstrate cause" for umbrella LLC, (Phila, CCP, Dougherty Philadelphia Newspapers, 5. See v. July 004224); LLC, Term No. Dougherty Philadelphia v. Newspapers, statements, of her false state- publication continued Appellee’s media, history parties directly and the ments social action—coupled Appellee’s indirectly with involved she not use the agree refusal to would visual counsel’s other than this deposition purposes record of Appellant’s jurist Appellant produced conclude litigation,6 lead this v, 00325); (Phila. CCP, Philadelphia Dougherty Term June No. CCP, 004790); LLC, (Phila. see Newspapers, Term No. also March LLC, (Pa.Su- Dougherty Philadelphia Newspapers, A.3d Pennsylvania per.2014) (holding Rules Professional Conduct Hamilton, representing Philadelphia Pepper (Pepper), LLP from barred LLC, Newspapers, related defendants action filed defamation interest, Appellant which Appellant to a conflict of did not due waive, representation Appellant). stemming Pepper’s prior appeared on Appellant's counsel March Appel- questioning, deposition. his noticed Prior to the start while record, making stipulations for the Appellee's lant’s and counsel were following exchange place: took being videotaped, [Appellant’s Since we have some this is counsel]: perhaps go this could concerns it involves the media that since beyond filings perfectly proceedings. We're use for court or court *34 deposition] [proceeding videotaped understand- fine with with the ing going just purpose, we are to be used for that but not that it's videotape. goes any portions party, comfortable if to a third of this it And we'd like that not be the case. assurances that will just trying your I’m make ] not to handcuff use. to sure We[ want[ ] going watching sudden that not to be the news all a a we're and clip deposition appears today’s purposes outside [is used] and for assurances, litigation. this And that’s that's all we want that not going to case. intent, [Appellee's yes. That’s counsel]: not [Appellant’s going IWell not counsel]: want assurances that that’s to be the case. [Appellee’s give you going I am assurance counsel]: not to that going plan using that’s to be tine not the I on not case. That’s intent. litigation. in I not used this connection with the have never transcript deposition litigation. video with and a not connection malte, Well, no, [counsel], [Appellant's no we want to so co-counsel]: clear, you very by agreement it’s we want be used [an] that will just litigation. going for You’re to turn it like the news not over to media, anything television like that. all we want. That's that, doing [Appellee’s and ... I never intent of I’m counsel]: had an doing planning not on it.... agreement you [Appellant’s We won’t co-counsel]: [an] want that do it. Well, obligated [Appellee's I I’m not to counsel]: don’t think that and put agreeing I don't want to be to to that— [Appellant's obligated You're having co-counsel]: if we’re this tele- you’re using vised purposes that not it for other litigation in the you’re going not to turn it over to television stations or the media general just obligated to broadcast it. You are to do that. [Appellee's obligated by my I am obligations counsel]: whatever are under the rules. See, us, [Appellant's [counsel], problem this is a counsel]: be- any cause damage ... we need to that already assess more than has done, vantage Now, been point, going our is not to occur. we recognize you right to videotaped deposition, have a do a we’re disputing not that. [Appellant's purposes litigation.. For co-counsel]: [Appellant’s exactly right. That’s we counsel]: And need know to that assurance then perhaps because we have to assess whether step [Trial there’s a need to have a Court] in and decide that the videotape option you that otherwise would going be entitled to is not certainly to occur help put without that assurance. You would us you right represent that issue aside if will now us that to besides this litigation, videotape any will purpose not be used for other any parties released to filing relationship other third outside of with proceeding. simple this case or court I it’s request. think said, really professional And responsibility [counsel] it’s duty you owe. [Appellee’s I authority. ... don’t counsel]: have the All I have the rules, authority say you by to is I abide and I will abide put lawyers rules. And rules if the elhical constraints what can do discovery, with materials in I abide those rules. Well, [counsel], [Appellant’s going go not co-counsel]: we’re ahead videotaping deposition] you position with ... [this if are not in a you tell us not will turn it over to the media to have it broadcasted]. [Appellee’s saying going give not counsel]: I'm that I am it to some just might TV I station to broadcast. But don’t who know ask it of me, certainly I calling up anybody don't know—I am not asking videotape. position them to take this But I am to assure you provide under I videotape all circumstances would not appropriate. someone else if it seemed [Appellant’s significant [Appellant], given I think it’s counsel]: [] history, very, very agreement his we have solid as to how we’re Because, know, going tape. you you to handle this are the media and *35 we’re here what we because of contend to be malicious conduct public figure. giving the media of a And we think without us this assurance, great it deal of raises a doubt of what the intentions are here. [Appellant's we counsel]: [A]ll want[] assurances that if some- [are] body requested tape you the outside or if were inclined to releasing get think of it we would notice advance so we could appropriate then have a decide [trial whether that’s or not. c]ourt agreement again The strong fact that we can't have that basic raises his pre- risk that to substantial evidence establish
sufficient non-litigation used for would be deposition tape trial video warranted. order was protective that a and purposes, on the focused for a order request protective Appellant’s dis- for which information purposes and form in which Appellant’s may be disseminated. pre-trial discovery closed prior to litigation, embryonic stage in the made request was dis- post-discovery to admissibility, prior filings rulings on sought Appellant to trial. Had motions, prior and positive prevent disclosure sought protection relief broader needed trial, would have during Appellant information burden; however, on this evidentiary stringent satisfy more Trial process, record, stage litigation pre-trial at the had determining Appellant discretion its Court abused order denying protective “good cause” not established of Appellant’s visual record dissemination preventing non-litigation purposes. deposition joins concurring FRIEDMAN Judge Senior dissenting opinion. dissenting. FRIEDMAN, concurring and Judge
Senior I I, II, majority opinion. III of the join I parts join the majority part IV dissent respectfully Judge Colins. dissenting opinion that based on only emphasize separately I write are history, Appellant’s fears adversarial parties’ protracted I presented, From the evidence speculative. not real and alleged likely is more the harm conclude that because would cause, thus occur, good has established than not to requested. order warranting the limited go going forward with the flags We in our mind. are just having go forward with videotaping. You can choose Otherwise, protective relief and going transcript. we’re to seek going proceed with the decide how we’re Court] we’ll the [Trial let videotaped portion of this. 89a-96a.) (Appellant’s Deposition, R.R. *36 Judge BROBSON, concurring and dissenting. join I,
I parts II, III of the majority opinion. Because, after protracted appellate proceedings, I believe Court should decide the two issues that it accepted for appel- late review its February Order granting allocatur, neither of questions Pennsylvania which Superior Court’s analysis application of the collateral order doctrine, I respectfully dissent part IV the majority opinion.
139A.3d IA CONSTRUCTION CORPORATION and
Liberty Mutual Insurance Co. (RHODES) WORKERS’ APPEAL COMPENSATION BOARD Appeal Jeffrey of: Rhodes.
Supreme Pennsylvania. Court of
Argued April 2016. 25,May Decided notes Finally, Appellant jurisdic- in terms of reargument order was framed forth however, presence disclaims the Appellant, specifically tion. Rather, Appellant’s position it is jurisdictional concern. Supple- to authority one of the act.” really that “the issue at n. 3. mental Brief hand, argu- on the primarily on the other relies Appellee, response application in her to presented Appellant’s ments reconsideration, be regards what she supplemented logical in, problematic flaws corollaries consequences of, Appellant’s supplemental arguments. Initially, consider, significance we briefly, the of Appellant’s position that the presented issue is not jurisdictional matter. Certainly, to the degree jurisdiction issue, is in statutory commands Section 326 of the Judicial Code are preeminent. In this regard, our V, Article Constitution’s 10(c) Section power allocates the to prescribe rules governing practice, procedure and the conduct and administration all courts, subject but right “the Assembly General Const, determine jurisdiction court.” V, Pa. art. 10(c) added). § (emphasis To degree the matter of authority two Justices to act on the Court’s is not jurisdictional behalf concern, however, V, 10(c) Article Section allocates to this Court’s own prerogatives power regulate conduct courts, administration of discernments which the Court See, has determined e.g., exclusive. In re Pa.C.S. § (1978). 482 Pa. 394 A.2d Notably, this Court exercised authority judicial its over administration in 1978—in impacted a manner which greatly quorum require it Superior ments—when authorized the Court sit three- judge panels to administer its extensive workload. See Com
Notes
Jon Notes and Comments (3d ed.2004) along debate (alluding scholarly Rules