Ott v. Preferred Truck Leasing, Inc.

9 Mass. App. Ct. 875 | Mass. App. Ct. | 1980

1. The plaintiff was ordered by a judge of the Superior Court to produce three documents claimed by the plaintiff to be privileged as patient-psychotherapist communications under G. L. c. 233, § 20B. The plaintiff applied to a single justice of this court for relief from that order under G. L. c. 231, § 118, first par. (as to which see Demonios Super Mkts., Inc. v. Peter’s Mkt. Basket, Inc., 5 Mass. App. Ct. 750, 752 n.3 [1977]). The single justice denied relief, and the plaintiff appealed from the order of denial. That appeal is interlocutory and is improperly before us. “[Although G. L. c. 231, § 118 [, first par.], authorizes appellate relief from interlocutory orders of the Superior Court, this statute does not entitle a litigant as matter of right to review of an appellate order denying relief under G. L. c. 231, § 118 [, first par.], from such a Superior Court order.” Cappadona v. Riverside 400 Function Room, Inc., 372 Mass. 167, 169 (1977). The second paragraph of Rule 2:01 of the Appeals Court, as amended, 3 Mass. App. Ct. 806 (1975), authorizes appellate review of orders of single justices only “in the same manner and to the same extent that the determination of a like matter by a single justice of the Supreme Judicial Court may be reviewed by the full court of the Supreme Judicial Court.” 2. Following the claiming of the appeal discussed above, the plaintiff filed a petition in the Supreme Judicial Court under G. L. c. 211, § 3, again seeking relief from the Superior Court’s discovery order. That petition was denied by a single justice of that court “[t]o the extent that [it] seeks relief from this court under G. L. c. 211, § 3” and was transferred to this court “[t]o the extent, if any, that it seeks other relief.” A single justice thereafter entered an order denying all relief, and the plaintiff claimed an appeal from that order. There is no merit to the plaintiff s contention that the order of the single justice of the Supreme Judicial Court delegated to this court any question of relief under G. L. c. 211, § 3, a course disapproved in Fadden v. Commonwealth, 376 Mass. 604, 608 (1978). Consequently the appeal from the order by the single justice of this court presents no question as to the present appealability of orders in civil cases under G. L. c. 211, § 3. Contrast Cappadona v. Riverside 400 Function Room, Inc., supra at 170, with Borman v. Borman, 378 Mass. 775, 784 n.13 (1979). The instant appeal is therefore indistinguishable from the appeal considered in part 1 hereof and is similarly before us improperly.

Kenneth H. Tatarian (H. Glenn Alberich with him) for the plaintiff. Eugene F. Nowell for the defendants.

Appeals dismissed.