Stenger v. Lehigh Valley Hospital Center

drug аs an of the offense to be element employed intended created for the itself, solely rather the Schedules were but sentences consistent with the individu- imposing of purposes essence, In the Sched- drug’s potential society. harm al sentencing guideline legisla- merely are based ules drug’s potential individual qualitative analysis ture’s for harm. sum, drugs, I hold that two different would when vial, in single in a are transac- single

contained delivered tion, appel- Act occurs. The Drug one violation proscription against correct: The double jeopardy lant is violated; single for a has multiple punishments offense been failing to attack appellate and сounsel ineffective under the facts legality Accordingly, sentences. us, delivery sentences for should be separate before imposed sentence should be based single and vacated drug greater possible in the Schedule with sentence, Tuinal. being

554 A.2d 954 STENGER, Craig Stenger Stenger, R. Donna A. William Stenger, Barry hy Minors Their Parents Natural Stenger

Guardians William and Donna CENTER, Huston, VALLEY Samuel LEHIGH HOSPITAL M.D., Slaven, M.D., Matulewicz, Hospital Barry J. Theodore J. Inc., Services, Blood W. Central H.C.S.C. Center Samuel T/A Center, Molthan, M.D., Lyndall Blood Miller Memorial Morning Call, Joseph Yelo Inc. and the CALL, Appeal INC. MORNING Pennsylvania. Superior Court Sept. Argued 1988.

Filed March 1989. Gross, Allentown,

Malcolm J. for appellant. Higgins, Pamela W. Philadelphia, Stenger, appellees. for McCardle, Allentown, Lehigh, Edward C. for appellees. Haber, H.C.S.C., Pittsburgh, David L. for appellees. MELINSON, WIEAND, JJ. McEWEN and Before MELINSON, Judge: from an order of the Court of Common appeal

This is an to intervene Lehigh County, denying Pleas of Call, (hereinafter “The The Inc. by appellant, filed Call”). Stenger, A. Stenger, R. Donna March William in the Stenger, Barry Stenger, plaintiffs and Craig action, Lehigh complaint against Valley filed a underlying Huston, “LVHC”), (hereinafter Samuel Hospital Center M.D., i,LD., Slaven, Matulewicz, Hospi- J. Barry Theodore J. Services, Inc., Blood Center t/a Samuel Central H.C.S.C. tal Molthan, M.D., Center, Lyndall Miller Memorial Blood W. action. Yelo, underlying the defendants Joseph are the action аt bar. parties appellees All of these alleged action that while receiv- complaint underlying LVHC, transfused Stenger Donna A. was ing treatment Acquired contaminated with units of blood which were with “AIDS”), (hereinafter Deficiency Syndrome Immune virus. The this transfusion she contracted AIDS Stenger after Donna was alleges shortly also complaint AIDS, husband, Stenger, her William having diagnosed exposure son, Stenger, positive tested Craig virus. deposition Wil- began with

Discovery proceedings ad- deposition 1987. The Stenger April liam motion Stengers filed a completion. journed prior order, that such an order was contending for a of confidentiality deposi- the future preserve necessary of agreement the Following argument and with tions. Backenstoe, E. the Honorable John counsel, judge, the trial Lehigh Pleas of of the Court of Common Judge President 30, 1987, relat- April order on protective a County, entered depositions.1 to future ing provides the Pennsylvania Rules of Civil Procedure the

1. Rule 4012 of implement protective order. can a grounds upon which a trial court provides: part, that rule In relevant Call, County a 11, 1987, Lehigh The May Morning On in this to intervene lawsuit newspaper, filed Thereafter, protective order. exceptions to file order the filed and issued exceptions court ordered the trial the why newspaper appеllees the a rule show cause all of for the purpose not be to intervene permitted should The filed seeking appellees vacate the order. court, opposing peti- responses by directed issues and the substantive addressing tion intervene by heard by exceptions. argument Oral raised 1, 1987, The Judge regarding on July President Backenstoe and the merits of the Call’s intervene 6, 1987, the court issued an exceptions. On November and each of denying rejecting and order intervention opinion In pertinent part, exceptions filed Call. by provided: the order counsel, and persons

1. No other than their parties “A” investigators executing Exhibit experts and/or hereto, shall scheduled or any depositions attend scheduled in this case. be disclosure, summarizing copying,

2. There no shall be in depositions, use of inter- or the information discovered rogatories discovery process by any or other any formal case, preparation in this other than for use party case, or trial of this includ- pleadings, preparation for of the and all ing experts parties choosing review by [sic] such shall be and remain under seal. documents this appeal filed a notice with Morning Call 12, 1988, April On Judge court Backenstoe’s order. ( n ) Upon party person from whom dis- motion or shown, covery deposition sought, good or cause justice protect party any requires to or make order which embarrassment, annoyance, oppression, person from unreasonable including following: of the ... expense, burden or one or more (2) discovery deposition specified terms or shall be ...; and conditions ... ( n ) deposition with no one or shall be conducted court; except designated present persons by the (7) only by opened shall be deposition that a shall sealed and court; Pa.RXiv.P. 4012. 80 directing parties entered an order brief

we from a final order appeal threshold issue of whether the is or is interlocutory. address the trial

Accordingly, we must first whether petition Call’s to intervene denying court order final, a order. the seminal case on the appealable Court held that a subject, Pennsylvania “[a]s rule, refusing an will not lie from an order leave appeal one, intervene, such order is not a final because [however] petition cases arise where a denial of a to intervene petitioner of relief to practical a denial which would be can in no other way; for intervention is entitled and obtain an is a permit and in such cases the refusal to intervention Estate, petitioner[.]” Frey’s final or decree as to the .order 269, 271, 147, 148 (1912); A. 237 Pa. 85 see also Scharnitzki 610, (1987). 368 534 A.2d 825 Pa.Super. v. Bienenfeld, might only way to intervene be the petition Because a relief, the can decision whether petitioner judicial obtain petition an order inter- appeal denying an quash a consideration of the merits of the vene is intertwined with conclusion case, judicial “the of an order is finality ramifica- after examination of its can be reached which Stroudsburg ‍‌‌​‌​‌​​​​‌‌‌‌‌‌‌​‌‌​‌​​​‌​‌​‌​​‌​‌​‌‌‌‌‌​​​​‌‌​‍Savings East Corp. tions.” Boise Cascade 446 A.2d 615 Association, Pa.Super. Discount (1982), Bell v. Consumer quoting Beneficial 225, 228, 348 A.2d 465 Pa. Company, Therefore, merits of The must examine the we the trial whether Call’s determine denial of relief which practical court’s order “is a Cascade, 300 Pa.Su is entitled.” See Boise Morning Call 446 A.2d 614. per. a matter vested to allow intervention is

Whether and that court’s decision will of the trial court the discrеtion of its a manifest abuse appeal absent not be disturbed Automobile Farm Mutual discretion. State Wilson (1986); 486, 517 A.2d 944 M. Company, Insurance A.2d London, Pa.Super. Corp., Inc. v. Fedders found to have abused (1982). A trial court will the judgment unless the record discloses that its discretion unreasonable or the result of manifestly exercised was Inc., 306 or ill-will. M. London bias, prejudice, partiality, 106-107, Pa.Super. at 452 A.2d 236. 2327 sets forth the Rule of Civil Procedure

Pennsylvania categories permitted of who be to inter- persons may four follows; provides in a civil action. The Rule vene action, during person At time of an a any pendency to intervene there- party permitted not a thereto shall be in, if to these rules

(1) of in such action or thе entry judgment impose of judgment any liability satisfaction such will in in person indemnify part such whole or entered; or against whom be party judgment may (2) is so situated as to be affect- person adversely such in the disposition property ed a distribution or other by thereof; or of the court or of an officer custody (3) original as an person joined party such could have therein; joined in the action or could have been or (4) affect may any the determination such action or person interest of such whether legally enforceable he in the action. judgment be bound court, this Although not stated its brief to specifically basing Morning presumably argument The Call is its (4) .Spеcifically, Morning of Rule 2827. The subsection four constitutional law and common Call claims that both federal Morning should the contention that The Call support law gain intervene to access to what allowed to records” at issue. “judicial terms the Call note, attorney as the Call Initially, we greater the media has no argument, conceded at oral than or document right any judicial proceeding of access to Court, As stated our does other citizen. any media, general public, and of the rights “access of the news Fenstermaker, Commonwealth scope.” are identical Estes (1987), citing 414, 504 n. 530 A.2d Texas, 14 L.Ed.2d 548 85 S.Ct. U.S. LAW I. CONSTITUTIONAL to the United Fourteenth Amendments The First and public quali guarаntee implicitly States Constitution Newspa to a criminal trial. Richmond of access right fied 448 U.S. 100 S.Ct. Virginia, Inc. v. pers, I; amend. U.S. CONST. (1980); U.S. CONST. L.Ed.2d Amendment Furthermore, 1. Sixth section amend XIV speedy to a enjoy shall that an “accused mandates reviewing amend. VI. trial”. U.S. CONST. public in Colonial England criminal trials history of concluded that America, Newspapers the Richmond nature of a very in the inheres openness presumption “a Richmond system justice.” our trial under criminal The Court 573, 100 at 2825. Newspapers, not mean that however, holding “does noted, that its representatives and rights public of First Amendment 448 Newspapers, Richmond are absolute.” press of the to right n. 18. “The 18, at 2830 n. 100 S.Ct. at 581 U.S. unrestrained with it the carry does nоt publish and speak 1, Rusk, 381 U.S. v. information.” Zemel gather to Rather, (1965). 1281, 14 L.Ed.2d 179 1271, 17, 85 S.Ct. openness presumption [for Amendment] [First “[t]he an ... may be overcome criminal to a access trial] essen closure is findings that overriding interest based to narrowly tailored and is higher values preserve tial along articulated interest is to be that interest. serve court can reviewing enough that findings specific with Press- proper.” closure order was whether determine 464 U.S. California, Superior Court Co. v. Enterprise Thus, (1984). 629 819, 824, 78 L.Ed.2d 501, 510, 104 S.Ct. federal Consti trial, criminal where of a the context even apply, implicitly and explicitly both guarantees tutional limitation subject are public of the rights access necessity. discrеtion judicial public, rights access compromised The already to further thereof, are members press civil, criminal, is not but proceeding limitations when v. Times Seattle litigants. See involving only private 83 Rhinehart, 20, 467 104 U.S. S.Ct. 81 L.Ed.2d 17 Smith, United v. (1984); States (3d 776 F.2d 1104 Cir. 1985).2

Moreover, perhaps more significantly, a clear distinc- tion must be drawn between First Amendment access rights publish acquired trial, information during and access rights publish information pretrial obtained dis- context. covery It is a pretrial discovery context in preparation a civil trial private litigants, between as is bar, the circumstance at that First Amendment access litigation are at their nadir. See Seattle Times rights Rhinehart, Company 104 U.S. S.Ct. (1984). fact,

L.Ed.2d 17 In the Suprеme Court of the United States has stated that an order prohibiting dissemi- nation of pretrial discovery information is not even the kind of classic prior restraint requires exacting First Times, Amendment scrutiny. Seattle at U.S. see also Gannett 2207;

S.Ct. Company DePasquale, 61 L.Ed.2d 608 Times, Seattle the United States addressed the issue of a newspaper’s right to infor- publish gathered through mation the pretrial process in the course litigation. of civil The newspaper sought publish pretrial discovery information in that case actually party to the lawsuit. Nevertheless, the trial granted Rhinehart, religious a leader of a group, a which, protective bar, like the order at prohibited the newspaper disseminating from information process. bar, obtained the As in the discovery case at the apply gained order did not to information through Further, means outside of the discovery process. the trial Seattle Times was based protective court’s order in Washington rule almost precisely State similar to this Com- Smith, Appeals 2. In the Third Circuit Court of held that a trial court public’s by showing can limit the access to a civil trial that the denial interest, important governmental serves an and there is restric- no less Smith, way government tive to serve the interest. 776 F.2d at 1109 (emphasis added). Clearly, this standard is less than the onerous overriding governmental necessary interest standard for denial of publiс access to criminal trials. order rule of civil utilized protective procedure,

monwealth’s Compare Washington Superior at the trial court bar. by with Pa.R.Civ.P. 4012. 26(c) Civil Rule Court The critical faced the Court was inquiry Supreme protective the precluding party-newspaper whether information the disseminating gathered during pre- process infringement party’s was an on that discovery rights. First The Court found that it not. Amendment Washington State Initially, analyzed procedure defining parameters rule of civil of discover- rule, a information. The Court noted that under the able matter, not regarding any obtain party “may discovery matter involved privileged, subject which is relevant Timеs, Seattle action.” at pending quoting Washington Superior Court Civil S.Ct. at 26(b)(1). The further is provides discovery Rule ‍‌‌​‌​‌​​​​‌‌‌‌‌‌‌​‌‌​‌​​​‌​‌​‌​​‌​‌​‌‌‌‌‌​​​​‌‌​‍rule trial, at so not limited to matters that will be admissible calcu- long sought “appears reasonably as the information of discovery lated to lead to the admissible evidence.” Times, quoting 29-30, 104 at Seattle 467 U.S. at S.Ct. 26(b)(1). Rule The Court Washington Superior Court Civil limitations contained only express commented sought privileged, the rules are that the information is matter of the action. pending and is relevant that much of the informa- Accordingly, the Court observed be un- during pretrial discovery may tion that surfaces related, related, to the cause tangentially underlying or only action, rules often extensive discovery of and that the allow and third private litigants intrusion into the affairs both Times, 30-33, 104 parties. Seattle 467 U.S. at 2206-2208. The Court noted: provided purpose for sole

“Liberal settlement, trial, or the assisting preparation in the pretrial litigated disputes. liberality Because 26(b)(1), necessary Rule it is discovery permitted by to issue authority the trial court to have 26(c). from experi- Rule It is clear orders conferred interroga- pretrial discovery by depositions ence that significant potential tories has This abuse. abuse is not limited to matters of and delay expense; discovery may seriously implicate litigants also interests of privacy parties. and third The Rules do not distinguish between public private infоrmation. Nor they apply do parties litigation, as relevant information parties hands of third to discovery.” Times, Seattle 34-35, U.S. at at S.Ct. 2208. commenting further private nature of the pretrial discovery process, the Court stated that “pretrial depositions interrogatories are public components Times, of a civil trial.” Seattle 467 U.S. at at 2208. “Discovery rarely place takes in public. Depositions are scheduled at times places most convenient to those involved. Interrogatories are answered in private.” Id. at 33 n. 104 S.Ct. at 2207 n. 19. factors,

Because these the Court found that restraints discovered, placed admitted, but not yet information are not a restriction on a public source of traditionally informa- Times, Seattle tion. at 104 S.Ct. at 2207. The Court stated “the prevention abuse can attend the coerced production of information under a State’s dis- rule is covery sufficient for the justification authorization of Id. at orders,” 35-36, protective 104 S.Ct. at and that “the trial court is position weigh best fairly competing needs parties and interests of affected by dis- covery. unique character of the discovery process requires that the trial court have substantial latitude to Id. protective fashion orders.” 104 S.Ct. at 2209. Therefore, the Court held “that where ... a order is showing good entered on a cause as required by 26(c), Rule is limited to the context of pretrial discovery, and does not restrict dissemination of the if information sources, gained from other it does not offend the First Amendment.”3 analysis

3. Federal Circuit courts have utilized the of the Seattle Times newspaper Court and have held that a does not have an unconditional generated through pre- constitutional of access to information Seattle Times in Although the issue freedom of the publish, public’s access, rather than the press right of the that existed for in Supreme holding reasons the Court’s that in present case exist the case. Both cases in are civil Both pretrial discovery nature. involve information. The Procedure, Pennsylvania Washington’s Rules of Civil like regarding rules civil procedure analyzed by Supreme the Times, permit in Seattle matter, Court not discovery any to the in privileged, subject -relevant matter involved pending Again, the action. Pa.R.Civ.P. 4003.1. as is the rules, Washington case with the the rules do Pennsylvania information, discovery not limit to admissible trial rath- but er, for the discovery allow information inadmissible at trial, that the information provided sought “appears reason- ably discovery calculated to lead to the of admissible evi- Furthermore, dence.” 4003.1. discovery prac- Pa.R.Civ.P. generalizations tices in fit into the Pennsylvania by drawn Court Seattle Times. Discovery in in Pennsyl- the public. takеs are rarely place Depositions usually vania in private quarters, places scheduled at times and most for those are also Interrogatories convenient involved. Thus, regarding the concerns privately privacy answered. scope discovery by and manner of articulated the Su- Seattle Times are preme clearly present bar. Here, the discovered information to which The intimate, contains details of the personal Call seeks access therein Stengers’ Encompassed lives. is information about their their practices, idiosyncrasies, person- their sexual William, Donna, hygiene habits. See Appellees, al Brief of 11. This information elicit- Craig, Barry Stenger, page Stengers reasonably ed from the must calculated to evidence; thus, such lead to the of admissible discovery. Company, See In re Alexander Grant and 820 F.2d 352 trial Inc., (11th Cir.1987); (1st Cir.1986); Cryovac, F.2d 1 Anderson v. Publishing Company, Hospital Association v. Oklahoma Oklahoma courts, others, (10th Cir.1985). adopted have F.2d 1421 These determining pre- whether standards articulated Seattle Times for protective orders are violative of the First Amendment. See House, Publishing Fanning, Inc. v. 235 Va. 368 S.E.2d Shenandoah even meet the for admissi- information not standards Furthermore, settle the parties may at trial. bility thus, none of this in- begins; before trial even litigation public scru- private informatiоn would be tensely at a trial. tiny trial, The Morning Call would parties proceed

If the do admitted at trial. publish have access evidence clearly party Call is not a The fact Times, Seattle petitioner unlike the serves litigation, Here, all even further. Morning Call’s claim vitiate lawsuit,' just Stengers, have parties President Judge order issued supported Backenstoe. Times,

Moreover, in Seattle the the trial as was situation procedure that here a rule of civil allows relied court, discretion, implement protective order the its to embarrassment, annoy- from unreasonable party to save 4012. There is no doubt that or burden. Pa.R.Civ.P. ance has the of the AIDS virus caused deadly the contraction of Certainly, publication the Stengers misery. unbearable this newspapers in various has exacerbated their affliction of additional Morning The Call misery. publication by The add needlessly the lives would Stengers’ intimate details of cause, re- Clearly, good their as humiliation to distress. to Pennsylvania counterpart the quired by Pa.R.Civ.P. 26(c), for order. Washington protective existed the Rule narrowly at bar was tailored Finally, protective the order in the exclusively information communicated apply preclud- Morning The Call has not been discovery process. Stengers obtained publishing from information about the ed judicial has independent reseаrch. It access from not records, by judges, term defined that has been fruits of publish it is the this newspapers, and free trial, The Call proceed Morning If parties access. the proceed- garnered at that publish can also all information ing. hold, as did the Court

Accordingly, Supreme we Times, order dissemi- Seattle protective prohibiting that a of information the nation discovered before trial is not kind restraint First prior requires exacting classic Times, Seattle scrutiny. Amendment 467 U.S. at Times Court, Seattle at 2208. As stated the the information is and there is a scope discoverable broad potential discovery process. resultant abuse Thus, the conclusion of the wholly we embrace that “the trial court is in the United States best needs and interests position weigh fairly competing The character of parties by discovery. unique affected the trial court discovery process requires have orders.” Seattle protective substantial latitude to fashion Times, 467 U.S. at bar, 104 S.Ct. at 2209. In the case at distinguished good had cause to judge because order, fashion the because the order protective drawn to the context of pretrial discovery, limited because Morning gaining order does restrict Call sources, same information from other find that we not a of The Call's violation First Amendment rights.

II. COMMON LAW argues Call also that it has a common law access to the documents bar. Morning discovery “judi Call denominates this information find appellant cial records.” Brief for at 9. We that records, judicial documents at ‍‌‌​‌​‌​​​​‌‌‌‌‌‌‌​‌‌​‌​​​‌​‌​‌​​‌​‌​‌‌‌‌‌​​​​‌‌​‍issue are not and discovery of access to right that The Call has no common law inspect this information. in the common long-standing presumption

There is a and records public may inspect copy judicial law that the Nixon v. Warner Communica documents. public and tions, Inc., 435 1306, 98 55 L.Ed.2d 570 U.S. S.Ct. Trust v. Hotel Ritten Bank America National (1978); house, 800 F.2d 339 see also Commonwealth (3d Cir.1986); Fenstermaker, v. (1987). 530 A.2d 414 transcripts of access to trial public presumptive right has a conferences. Unit- or transcripts and sidebar сhambers

89 Smith, (3d Cir.1986). The pre- 787 F.2d 111 ed States v. filed with extends to documents which have been sumption affidavits, and arrest court, pleadings, such as warrant public and which are considered agreements, settlement 513-514, A.2d Fenstermaker, 515 Pa. at 530 records. See Trust, 800 F.2d at 342- America National Bank of Company Litigation, Alexander Grant and In re 343; (11th Cir.1987). F.2d

However, during collected dis private documents Grant In re Alexander are not records. covery judicial Cryovac, v. 355; Anderson Company, 820 F.2d see also Seattle Times Inc., 805 F.2d (1st Cir.1986); Rhinehart, 81 L.Ed.2d 17 104 S.Ct. in the constitutional (1984). For the reasons articulated essentially private opinion, discovery of this section Times, Seattle Supreme Court As stated process. com public are not interrogatories “pretrial depositions 33, 104 Times, 467 U.S. at a civil trial.” Seattle ponents Court, Thus, “such proceedings wrote the at 2207. at common law.” Id. Justice public to the open were not opinion another Burger separately wrote aware, I so far as am anyone, “it never occurred to that has interrogatories were pretrial or deposition that a pretrial Gannett Com litigants.” wholly private other than 2898, 2914, 368, 396, 99 S.Ct. DePasquale, 443 U.S. pany bar, in the case at Accordingly, L.Ed.2d right of a common law does not have Call information. access to discovered judge,

Furthermore, believe, as did the learned we here, and of access is found if a common law reаdily available information were discovery pro- discovery consequences the detrimental public, result, litigation entire As a grievous. cess would be incisively The trial suffer. procedure would stated: cogently materials access to nonparty believe

[w]e Hu- litigants. upon potential éffect chilling have reluctant will be that an individual man nature dictates pursue rights his once he legal doing is aware that so will exposure result in the private his life. This intrusion private into a litigant’s affairs at the or discovery pretrial stage could be deterrent to the utilization of the court Further, matter, system ... as is evident the present in controversial nonparty access cases threatens the to a fair litigants trial. It is essential that right by preventing court ensure this an presenta- unfair tion, trial, prior to of the facts and issues underlying controversy.

Trial Court at 12. Opinion Not would dis- voluntary chilled, but covery be whatever discovery did take place would be almost This exclusively obviously oral. oral undesirable because would foster discovery misunder- standing and a lack of clarity litigants for the trial court. after a

Accordingly, consideration the merits of The Morning Call’s we appeal, find that Call was requested and, thus, entitled to the relief which it court did not abuse its discretion denying peti tion for Under the reasoning intervention. Es Frey’s tate, 85 A. (1912), and its we progеny, quash appeal.

APPEAL QUASHED.

WIEAND, J., dissents.

WIEAND, Justice, dissenting: I respectfully dissent the decision of the majority quash my this best it appeal. judgment, would be more realistic to affirm order of the trial court.

In this action to recover for the damages alleged contrac- (AIDS) tion of Immune Acquired Syndrome Deficiency transfusion, blood trial court directed that proceedings press public. ‍‌‌​‌​‌​​​​‌‌‌‌‌‌‌​‌‌​‌​​​‌​‌​‌​​‌​‌​‌‌‌‌‌​​​​‌‌​‍should be closed to the Call, newspaper, an Allentown filed a intervene in action for the its purpose challenging exclusion from pre-trial discovery proceedings. The trial

91 consideration, court, the to inter petition due denied after the decision the trial was my judgment, In vene. right did an Call nоt have absolute correct. See: Seattle pre-trial discovery proceedings. the access to 2199, Rhinehart, 20, 467 U.S. 104 S.Ct. Company Times v. (1984). Moreover, law 17 its common 81 L.Ed.2d powers the supervisory records was inspect court court, the and the public which could exclude trial pre-trial discovery protect the proceedings media from Katz, v. 356 Pa.Su rights parties. Cf. Katz private 581, Pa. 461, (1986), denied, A.2d 515 appeal 514 1374 per. (1987). Therefore, I affirm the order of 527 A.2d 542 would court. 269, (1912), A. Estate, 85 147 Frey’s Supreme Court said:

While, rule, not an order appeal as an will lie from intervene, is leave to such an order refusing because one, petition cases arise of a a finаl where denial of relief to which the practical would be a denial intervene is obtain in no petitioner intervention entitled can permit an way; other in such cases the refusal petitioner. is a final order or decree intervention omitted). Id., (citations 271, Pa. at 85 A. 148 237 Estate, Frey’s examines mer- majority, reliance intervene, The Morning its of determines that holds, sought, there- was not entitled to the relief Call fore, not lie from the order of the trial appeal that an will reasoning intervention. This circu- court which denied Nevertheless, Superior has been followed by itous. it in the cases: Inc. v. Helmark following Inryco, Steel, (1982); A.2d 511 Inc., 305 451 Boise Pa.Super. Association, Cоrp. Stroudsburg Savings Cascade East (1982); 279, 446 A.2d 614 Richard Held Pa.Super. 300 Inc., 403 Builders, Allebach, Pa.Super. 266 Inc. v. A.G. Merriam, 251 380 (1979); Pa.Super. A.2d 113 Taub v. (1977). see, however, A.2d As shall we validity this continuing itself cast on the Court has doubt Toole, Media, rule dictum Cities Inc. Capital Pa. (1984). A.2d 1339 In my best judgment, this old rule is unrealistic and can serve to confound. It has widely been criticized and disapproved and rejected by the Third Circuit Court of Commonwealth v. Appeals Rizzo, (3d Cir.1976), denied, 530 F.2d 501 cert. Fire Officers Union v. Pennsylvania, 96 S.Ct. L.Ed.2d 375 After discussing rule, the old identical Estate, to that stated in Frey’s supra, which had thereto fore been followed Circuit, Third the Court said: do not

We follow the older rule which made appealability turn on had, fact, whether the appеllant a right intervene. “Since makes appealability turn [such rule] merits, on the it is not a very effective or useful limitation appellate jurisdiction; the propriety of the denial by the district judge must be examined before the appellate court knows whether it has jurisdiction, and the only consequence of the restriction on appealability is that on finding the district judge right, was it will dismiss the than affirm.” Levin v. Ruby Trading appeal rather Corp., 592, (2d Cir.1964) 333 F.2d 594 J.) (Friendly, (quot Miller, ed 7A C. Wright & A. Federal Practice and 1923, (1972)). Procedure at 627 It is sufficient § right sought intervention of and denied to render the denial appealable. Rizzo, v. supra

Commonwealth at 504. See also: 3B 24.15, Moore’s (2d 1976); Federal Practice at 564-565 ed. Courts, Some Shapiro, Thoughts Intervention Before Arbitrators, Agencies, 721, 81 Harv.L.Rev. 748-751 (1968), cited in Boise Cascade Corporation v. East Association, Stroudsburg Savings supra Pa.Super. 300 at 1, 282 n. 446 A.2d at 615 n. 1.

Generally, order, an lie appeal i.e., will from a final case, one that ends the or litigation disposes of the entire appeal unless an is Pugar permitted otherwise statute. Greco, v. 68, 72-73, (1978). 483 Pa. 394 A.2d 544-545 See also: Piltzer Independence v. Federal Savings and Association, Loan (1974). 319 A.2d Cohen v. Industrial Loan Corporation, Beneficial (1949), however, 93 L.Ed. 1528 69 S.Ct. U.S. exception out an of the United States carved postpone which final rule for situations judgment might of final entry judgment an until after appeal ment of right asserted. This irreparable in the loss of result in Pennsylvania. and followed adopted has been exception Greco, v. Farm Insur supra; Gray State Pugar See: (1984); 532, 477 A.2d 868 Veno v. Co., Pa.Super. ance 419, 441 A.2d 1302 Under Meredith, Pa.Super. an order that will Cohen, appeal an will lie from are met: requirements where three litigation terminate the and collateral to the (1) appealed separable is action; (2) right important involved is too main cause of review; (3) question if denied review the claimed postponed judgment, until final presented lost. Indus right irreparably will be Cohen Beneficial at 69 S.Ct. Corporation, supra Loan 1536. 93 L.Ed. at case intervene newspaper’s The instant involves closing judicial challenge in an action to court order is clearly the The order proceedings press public. cause of action. principal from and collateral to the separate review, too to be denied right important It also involves a media to be accorded it of the news pertains for in a civil action pre-trial discovery proceedings access to allowing negligence medical center with major charging transfusion. by the virus to be communicated blood AIDS Toole, 506 Pa. at Media, supra Inc. v. Capital Cf. Cities (“We recognize legitimacy 483 A.2d at 1344 in judicial of the news media of the interest importance nature of ephemeral of the Finally, because proceedings.”). our courts have alleged right publish, media’s the news appeals. Id. expeditious to the need to allow sensitive been case, after the entire Indeed, appeal, instant a later resolved, practical of little value has will be case been therefore, hold, denying that the order I appellant. would appealable. immediately in the instant case is intervention has directed Supreme specifically Court Pennsylvania used the media in situations such as by to be procedure Media, Toole, Capital supra, Cities Inc. v. In this. petitioned prohibition had a writ of which newsрaper barring the effect of enforcement of a court have had would restraining printing announcing the media from or sketching or jurors taping, or addresses of and from names in a criminal case. jurors upholding photographing procedural grounds, denial of the trial court’s writ said: Court in this have been for the step procedure

The first would the trial court to intervene for the applicants pre-trial orders. purpose challenging legality See, 419, 414 Hayes, Commonwealth Pa. e.g., [489 denied, cert. A.2d in accordance (1980) Such an action is with L.Ed.2d ]. it is held view that strongly our well-established meaningful objections review that judicial essential of first instance to addressеd to the court should be such claims ‍‌‌​‌​‌​​​​‌‌‌‌‌‌‌​‌‌​‌​​​‌​‌​‌​​‌​‌​‌‌‌‌‌​​​​‌‌​‍and to have the that court to evaluate permit This cre practice to correct its own errors. opportunity court’s grounds from which the of the lower ates a record discerned in the re readily be event determination An order appellate necessary. an becomes view intervene in these sensitive circum leave to denying Estate, appealable. Frey’s See immediately stances is Pugar see generally (1912); 85 A. 147 237 Pa. Greco, Bell v. (1978); Pa. 394 A.2d 542 Beneficial Co., 225, 348 A.2d 734 Consumer Discount 465 Pa. added) 22-23, 1344 (emphasis Id. 483 A.2d at Thus, has not omitted). (citations media, has followed but procedure defined the immediately is denial of a intervene declared that a appealable. in- Call followed procedure Court prescribed by to that

stant case adhered trial court Media case. When the Capital Cities hold, intervention, order, I its would denied the Cohen collateral appealable under immediately Toole, Media, Capital Inc. Cities rule. See: Katz, supra. Katz v. supra; Therefore, I quash would Instead, I of the trial affirm the order appeal. this would to pre-trial discovery pro- of the media The access court. discerned, action, has ceedings majority in a civil in which the reasonable control is pending. action A.2d 964 KERSHNER

Kathleen Carter COMPANY, Appellant. PRUDENTIAL INSURANCE Pennsylvania. Superior Argued Dec. 1988.

Filed March 1989.

Case Details

Case Name: Stenger v. Lehigh Valley Hospital Center

Court Name: Supreme Court of Pennsylvania

Date Published: Mar 1, 1989

Citation: 554 A.2d 954

Docket Number: 473

Court Abbreviation: Pa.