*1 T.M., parent legal guardian D.M., minor, Appellee
ELWYN, INC. and Alternative Eugene and Markeith
School
Aikens
Appeals of Inc. and School,
Alternative
Appellants.
Superior Pennsylvania. Court of
Submitted 2007. Oct.
Filed June *3 Hare, appel- Philadelphia
John J. lants. Pierce, Philadelphia and
Patricia V. Richboro, Tomlinson, appel- Robert T. lees. BENDER, TAMILIA and
Before *, JJ. COLVILLE BENDER, BY J.: OPINION Alternative Inc. and Elwyn, from (collectively, “Elwyn”) appeal School orders, March both dated two 26, 2007. 23, 2007, on March and docketed reasons, that the we hold following For immediately are discovery orders at issue the collateral pursuant to trial court failed and that the doctrine * assigned Superior Court. Judge Retired Senior sexually
provide analysis justify employees assaulting adequate and/or breadth of the orders. Accord- abusing the students. and/or ingly, we vacate the orders and remand to Elwyn, by Defendant Inc. has been sued the trial proceedings court for con- further because of [D.M.] students other than opinion. sistent with this sexual abuse.
¶ T.M., parent legal guardian Defendant Inc. has been sued son, D.M., her minor commenced this ac- [D.M.] students other than because tion against Elwyn in December of 2005. negligent supervision. complaint subsequently her Defendant has been sued Elwyn, Inc. *4 2006, March of Elwyn T.M. asserted that [D.M.] students other than because designed Alternative School “is handle battery. and educate with mental children and be- Elwyn, currently Defendant Inc. is be- 3/16/06, Complaint, havioral issues.” at ing by students/parents sued other other ¶ complaint, 12. According to the D.M. than of sexual abuse. [D.M.] because sexually by
was assaulted school counsel- Inc., an Elwyn, Defendant has excess or, Aikens,1 Eugene Markeith on several policy applicable insurance is occasions while D.M. was student at the [D.M.’s]lawsuit. ¶¶ Elwyn 12, Alternative at School. Id. Inc., Elwyn, Defendant has an excess of, alia, 24-53. T.M. claims asserted inter insurance is policy [sic] negligent hiring, training, supervision and dollars) $50,000,000.00(fifty million against Elwyn the conduct based on of its is lawsuit. applicable to [D.M.’s] Later, employee, 2006, Aiken. in April of ¶ an complaint admission, amended was filed in which Id. at 6. For each proffered D.M. alia, was as the sole plaintiff requested, substituted pro- D.M. inter because, by that he point, was adult pleadings “all relevant discov- vide and/or individual.2 abuse, ery” related to other cases sexual battery, supervision. negligent and D.M. ¶3 2006, 10, On October D.M. filed a argued right that he “has a to learn about motion indicating during the course of other lawsuits that are similar his law- discovery, he learned of several other law- ¶ “sought suit.” Id. at 9. D.M. this infor- suits against Elwyn involving allegations of habit, neg- mation to establish evidence sexual employees assault on and notice, ligent hiring, negligent supervision, Motion, off grounds. school Plaintiffs and other elements of important [his] 10/10/06, Accordingly, at 3. D.M. served claim_” D.M.’s brief at following Requests for Admissions on Elwyn: ¶ 4 regard With to all but the last two admissions, requests Elwyn objected
Defendant Inc. has had students requested other than accuse their the basis that [D.M.] teachers on the documents reason, captions judgment against 1. A default entered was Ai- 2. For some unknown kens, plaintiffs pleadings subsequent vacillate who was named as a also defendant in guardian designating between T.M. case, respond this for his to T.M.’s failure parent (including ap- of D.M. notice of complaint. Additionally, following investiga- peal), right and D.M. as an adult in his own Police, tion State crimi- (including individual the use of his full name Aikens, against charges nal were filed and he initials). instead of these inconsisten- Given eventually pled corruption guilty of a mi- cies, caption we will not revise instant Complaint nor. at 88. Aikens is not in- but, forward, we point from this will refer to appeal. volved in this plaintiff "D.M.” in this case as thereto, that said (ie., Response fendants’ Elwyn asserted privileged were GRANTED, Defendants applica- Motion privilege, any other attorney client answer, objections, without fully by various shall protection privilege, ble which Request for Admissions Plaintiffs Health Insurance such as: statutes within August on were served Accountability Act of 1996 Portability and (20) days of the date of 104-191, twenty (HIPAA), No. Stat. at Pub.L. order. (1996); Family Educational (FERPA), Privacy Act of 1974 Rights and “A,” The court also en- Order 3/26/07. Mental Health 1232g; the at 20 U.S.C. on the same following order tered the (MHPA), at 50 P.S. Procedures Act date, motion for sanc- address D.M.’s 7101-7116; protection child §§ and various tions: statutes). objected on the Elwyn further of Plaintiffs upon consideration irrelevant to requests that the were basis Sanctions, filed November Motion (because, e.g., Elwyn runs the case at hand 28, 2006, response and Defendants’ than facilities other programs and various thereto, following is ORDERED: *5 issue), at Alternative School (30) of thirty days of the date 1. Within with the compliance and on basis Defendants, Order, at their own unduly overly-broad requests would deposi- for re-produce shall expense, Additionally, Elwyn’s de- burdensome. James employees, tions Defendants’ quash subpoe- a attorneys sought to fense Fitti, Thomas Ziegler, [etc.].... by on them D.M. na that had been served deposi- produce shall 2. Defendants “documents, correspondence, seeking all Dennis employees: Defendants’ tions discovery requests, discov- pleadings, [and] Ritrovato, Guthridge, [etc.].... Frank current lawsuits ery responses for and Plaintiffs objections to Defendants’ 3. in- Philadelphia” in against Elwyn, Inc. part are sustained Subpoenas docket specified other cluding cases under Plaintiffs issue part. denied numbers, prem- had request been which filed publicly all Subpoenas obtain that the same contention ised on D.M.’s falling any documents pleadings and Elwyn ob- firm each case. law defended ¶ scope of 4. within the characterizing
jected requests, to D.M.’s Defendants days, next 30 Within “fishing expedition.” a them as reports, all any and produce shall 12, 2006, filed a motion May D.M. On documents, e- pleadings, complaints, objections and non-re- Elwyn’s to strike mails, expert reports, correspondence, for admissions. request to D.M.’s sponses any other discovery responses, practice in motions engaged parties The relating to concerning or documents on responsive pleadings with associated any residents between sexual contact most of throughout these issues Inc., Elwyn, and be- clients and/or a included motion which also of El- clients tween residents and/or D.M. Elwyn, by filed against sanctions employee, contrac- any Inc. and wyn, 26, 2007, trial consultant, Finally, tor, on March or other volunteer order: following alleged to have court entered which was custodian years preced- the 10 occurred within and DE- hereby ORDERED it is 15, 2004, not including but April ing consideration upon CREED report incident all related limited to Defendants’ to Strike Plaintiffs Motion statements, investiga- forms, witness Plain- Non-Responses to Objections and logs, shift supervisor Admissions, tory reports, and De- Requests tiffs e-mails, logs, correspondence, internal procedures Chapter 15 of our Rules memoranda, Appellate risk management analy- Procedure. See Pa.R.A.P. sis, (indicating root 1311 note that where trial court analysis, cause and remedial certify appeal refuses to order for pursu- measures taken. The information 702(b), ant to 42 proper which Pa.C.S. produced pursuant must be includes, “determining mode whether the case is this order but not limited to, egregious justify prerogative so as to ap- required the kind to be kept for pellate correction of the exercise of discre- Elwyn’s all reported clients and tion” the trial filing peti- court is pursuant C.F.R. 483.420 per- court). tion for with appellate taining protection of clients’ however, Contemporaneously, Elwyn rights. The pro- information shall be appeal purported notices of in which it regardless duced par- of whether the take appeals right as of from the ticular client is considered to pursuant to the collateral order be a participant in an intermediate doctrine and Pa.R.A.P. 313. Those notices facility, care a residential treatment Court, pending were when our program facility, “day student” upon petitions examination of the for re- other classification of view, stating, issued orders in their entire- Inc. or is categorized mentally as a ty: hereby peti- “[t]he DENIES the retarded or mental health client for Order, 7/19/07; tion for review.” Order internal, funding, or purposes. other Now, that, argues D.M. 8/10/07. The produced information to be shall doctrine, to the law of the case our Court’s *6 be limited allegations of sexual petitions denial of the “compels for review contact. applies This order the conclusion” that our “implicitly” Court Inc., and each Elwyn subsidiary, pro- held that the discovery orders did not in- division, gram, department locat- right volve a claim or important “too to be Pennsylvania ed in Jersey. and New appellate purposes denied review” for aof All identifying information is to be collateral appeal under Pa.R.A.P. 313. replaced redacted and with an identi- fier number. ¶ disagree 8 argu We with D.M.’s
ment. pro The law of the case doctrine “judges jurisdic vides that of coordinate “B,” Order 3/26/07. sitting tion in the same case should not ¶ 7 sought to have the trial ordinarily overrule each other’s decisions.” discovery amend the orders to in Kroptavich Pennsylvania v. Power and clude a statement that the orders involved Co., 1048, (Pa.Su Light 795 A.2d 1054 controlling question “a of law toas which (citation omitted). per.2002) However, the there is ground substantial for difference per panel curiam of our Court that denied opinion of and that an appeal immediate the petitions provided for review no fur from may materially the order advance the ther reasoning regard why with ultimate termination of the 42 matter[.]” petitions were Conceivably, denied. 702(b). However, Pa.C.S. since the trial panel may petitions have denied the court did not take action on this re recognizing review after there were quest certification, appellate it was appeal other notices of on the docket filed deemed by operation denied of law after pursuant to the collateral order doctrine. expiration thirty of days. Pa.R.A.P. 1311(b). ¶ Accordingly, Appellants Indeed, pe filed 9 such was the case Times, L.P., titions for review our per with Court as Castellani v. Scranton 916 1056 However, “discovery or- 648, ap- (Pa.Super.2004). (Pa.Super.2007). The
A.2d
material are nev-
involving privileged
case,
chal- ders
in that
who were also
pellants
as collateral
order,
ertheless
filed notices
discovery
lenging
to Pa.R.A.P. 313
action”
principal
order
to the collateral
appeal pursuant
313(a)
Orders”).
(“Collateral
Rule
Id.
doctrine,
contemporaneously
but also
may be taken as
appeal
appeal
“[a]n
from an
states
permission to
petitions for
[a]
from a collateral order
right
interlocutory
Our Court dismissed
order.
313(a).
Pa.R.A.P.
lower court.”
appeal
as
permission
petitions
that the collateral order
separable
moot on the basis
is an order
A collateral order
appeal
as
to effectuate
applied
doctrine
the main cause of
and collateral to
from
than
rather
right, thereby preserving,
too
right
involved is
action where the
had
appeal
quashing,
the notice
and the
to be denied review
important
Although the
if
filed under Rule 313.
presented
been
is such
question
different in that
in the
judgment
case is somewhat
until final
postponed
instant
is
petitions
case,
irreparably
for re-
lost.
merely “denied” the
claim
we
will
as
dismissing
than
them
rather
view
313(b).
is
discovery
“A
Pa.R.A.P.
different,
moot,
should be no
the result
separate
it
only when
collateral
i.e.,
permitted
should be
Appellants
of ac-
underlying cause
from the
distinct
right
appeal
a collateral
pursue
1208,
Ide, 915 A.2d
tion.” Feldman
discovery
qualify.3
orders at issue
(Pa.Super.2007).
recently:
explained
11 As this Court
Accordingly,
we examine
Prior to the decision
pur
appealability of
Schwartz, 556
in Ben v.
Supreme Court
order doctrine.
suant
to the collateral
(1999),
Pennsylva-
Pa.
(Pa.Super.2001)
Schwartz
law,
seeking discovery
questions
ma-
are
our
clude that order
of
we
faced with
of
protected
attorney-
allegedly
by
scope
plenary. Berkeyheiser,
terials
of
immediately appeal-
client privilege was
able a collateral order under Rule as ¶ discovery contends the ¶ Schwartz, discovery the or- 13 As in it require orders to disclose question in ders at in the instant meet the issue case evidentiary in of information contravention requirements of the collateral order doc- attorney-client the privileges, including trine. the We are able examine issues stat- privilege, and violation various privilege raised ana- without HIPAA, MHPA, FERPA. utes such as and case, lyzing underlying issues in hand, brief, Throughout on the his other ie., Also, Elwyn’s alleged negligence. as discovery that the orders D.M. contends recognize, a party’s above cases asser- any they not privileges do violate because tion requested that the materials are sub- only of “documents and require production ject privileges, especially when to various administrative, supervisory, records anof involve mental materials sensitive nature employee relating or records sex- im- non-parties, health information about [Elwyn’s] employees ual contact between plicates “importance” of the col- prong agents [Elwyn’s] D.M.’s and students.” lateral privacy order doctrine because the However, plain reading brief at rights deeply public are involved rooted they reveals that are discovery orders policy. Finally, if we do not review ex- broader than contended D.M. For at this propriety of ample, of the March paragraph 3 point, Elwyn’s privilege claim of would be “may that D.M. issue Sub- indicates lost, it would irreparably as be forced poenas publicly plead- all obtain disclose information conformance with ings any falling documents within the trial court’s orders. Such scope Paragraph “B.” of 4.” See Order not be in a disclosure could undone subse- (which empha- here have redacted we quent appeal. size of the terms used but the breadth supra) in full in turn reproduced which is requirements Since requires Elwyn to met, are collateral order doctrine we now in the proceed to examine the issue raised any reports, and all docu- produce in El appeal, instant set forth follows any ments, other documents ... 2116(a): wyn’s brief Pa.R.A.P. relating concerning sexual con- WHETHER THE TRIAL COURT tact between residents and/or THE ERRED BY COMPELLING Inc., and resi- Elwyn, between clients OF CONFIDENTIAL PRODUCTION dents Inc. and clients and/or INFORMATION, AND PRIVILEGED contractor, consultant, any employee, PROTECTED MEDI INCLUDING other custodian ... includ- volunteer or CAL, HEALTH, EDU MENTAL AND ing to all corre- but not limited INFORMATION, [EL CATIONAL IN spondence, internal *9 memoranda,.... AND IN THE RECORDS WYN’S] pro- The which information must be PRODUCED IN OTHER DISCOVERY includes, to this order pursuant duced LAWSUITS? to, required but is not limited kind Elwyn’s and Elwyn’s In to be for all of clients reviewing propri- kept brief at 6. order, reported to 42 C.F.R. ety pursuant of a we determine § shall be 483.420.... The information whether the trial court committed regardless produced below, par- plained cursory whether the protections Elwyn ticular client is considered to abe limiting production allega- the order of to participant an intermediate care facili- tions of redacting sexual contact and infor- ty, a residential program treatment or mation inadequate. Accordingly, are facility, a “day any student” or other require reexamination Elwyn, catego- classification of Inc. or is light the trial court in arguments mentally rized as a retarded or mental presented by Elwyn.4 internal, health client funding, or First, Elwyn argues that the purposes. other The information to be trial court compelling erred disclosure produced shall be limited allegations protected materials that include health of sexual contact. This order applies to information under HIPAA. HIPAA pro Inc., Elwyn subsidiary, and each monetary vides for fines and various terms division, program, department locat- of imprisonment wrongful for the disclo ed in Jersey. New All individually sure of identifiable in health identifying information is to be redacted formation. 42 U.S.C. 1320d-6. Addi replaced with an identifier number. tionally, required the statute Secretary ¶4 “B,” added). Order (emphasis The of Health and Human promul Services to emphasized language includes terms that gate privacy regulations, which are now unduly broaden scope order, §§ codified at 45 C.F.R. 164.500—164.534. without sufficient countervailing language Elwyn contends it constitutes a “cov impose appropriate protections to docu- entity” ered meaning within the of HIPAA contain, ments that potentially, highly sen- and, therefore, comply must with HIPAA sitive mental health non-party data about and its associated regulations, because it fact, In students. specifically the order provides behavioral and mental health ser states that information “shall” produced be vices. See 45 (“Applica C.F.R. 164.500 regardless of whether the student is a bility”). resident or not and regardless of whether 17 Even we assume purposes the student is considered “mental health analysis is a client,” entity covered which personal indicates that men- comply that must privacy with the HIPAA tal health information contemplat- rule, Elwyn point still fails to au- ed scope within the of the order. The thority, statute, limit, order either within the HIPAA D.M., does not suggested by law, its production regulations, associated or case documents indi- only related behavior,” cating privacy protections “criminal the HIPAA but rather includes “any and evidentiary all translate into an concerning privilege documents or re- lating fact, to sexual contact....” court cases. Id. The to our own research, problematic is also encompasses as it we have found that docu- other courts pertaining only rejected ments not to sexual have the notion that HIPAA contact cre- student, See, between a staff evidentiary member and a ates an privilege. but e.g., also between two students or Hosp. Ashcroft, between two Northwestern Mem. members, (7th Cir.2004) staff which is irrelevant to the F.3d (concluding Also, litigation. instant as further privacy provisions ex- of HIPAA did not cre- plain reading 4. A requires of the order clearly contemplated by also which is not this liti- Overall, produce relating gation. all documents D.M.’s characterization of allegations of sexual conduct requiring only between the stu- the order as documents of a themselves, i.e., involving any dents supervisory not El- or administrative nature is belied *10 contractor, volunteer, wyn employee, or plain, language the broad of the order. 164.512(e) that its to ensure of section Similar- evidentiary privilege).
ate federal Schwartz, appropriate safe- discovery orders contain examining in in whether ly, un- evidentiary privilege guards. there existed an Law, Supreme Right-to-Know our
der the ¶ purpose of the contends that the Elwyn concluded that the also Court avail- confidentiality to make certain information law was violate the discovery orders oth- and exclude certain public able to the FERPA. 20 U.S.C. of protections information; however, no in- there was er FERPA ‘to enacted 1232g. “Congress § intended to legislature that the dication ... access to of students parents assure under the evidentiary privilege an create protect and to records their educational judicial proceed- purposes statute for by limit rights privacy individuals’ such Schwartz, at 553-554. ings. transferability of their records the ing ” Frazier v. Fair their consent.’ without Elwyn’s additional asser- 18 We note (1st Comm., 52, 67 276 F.3d haven Sch. that, entity under HI- tion as a covered omitted). Cir.2002) (citation Essentially, individually PAA, “may it not disclose goals by not these the statute effectuates information that cre- [it] identifiable health subject funding to educational providing indi- federal or unless ated] receive[s] “policy practice or Elwyn’s release.” brief that have authorize institutions viduals to, representation making releasing, providing at 11. this or access Court, sec- Elwyn apparently ignores in edu information personally identifiable 164.512(e) rule, privacy which directory tion of the infor than cation records other (with certain caveats generally indicates 1232g(b)(2). mation....” 20 U.S.C. pursuant for disclosure requirements However, gen to this exceptions there are that release subpoena) to a court order or the institution obtains eral rule where permis- is health information protected par from the student’s “written consent judi- in patient authorization sible without in furnished the “information is ents” or 164.512(e). proceedings. 45 C.F.R. cial order, judicial pursuant or with compliance (7th Bek, 790, 802 493 F.3d See also U.S. subpoena, upon con any lawfully issued Cir.2007) government’s (concluding are and the students parents dition patient defendant-physician’s seizure subpoenas in all such orders or notified of order, and sub- to court records therewith compliance advance of in that information sequent admission of agency.” or Id. institution the educational and con- criminal trial for fraud physician’s (B). § 1232g(b)(2)(A), at violations, did not vio- trolled substances’ FERPA, Despite protections where protections HIPAA privacy late authority standing for Elwyn to no points “(1) parties prohibited court’s order that FERPA creates proposition disclosing the records outside from Pennsylvania evidentiary privilege (2) required litigation, confines Moreover, record, there is on this courts. the cov- be returned to that the records consid- the trial court indication that no the end of the entity destroyed at ered was an educational whether ered adopt refuse to Although we litigation”). FERPA purview institution within evidentiary privilege new by D.M. are sought records rule, whether upon HIPAA privacy on the based re- “education records” considered case, trial court is and the remand parent notice to the quire at least and/or entity a covered satisfied a court pursuant to for disclosure student compliance, then of HIPAA purposes in section subpoena, as described order or provisions court should consider trial
1061 (3) pro- Nevertheless, legal in the course of 1232g(b)(2). according to a court act; authorized this 1232g(b)(2)(B), ceedings presented section when and.... subpoena compelling with a court order or non-party’s event, however, of a rec-
disclosure education privileged In no shall ord, communications, or appears Elwyn’s it to be whether responsibility written oral, such provide parent anyone notice to the or student without be disclosed (in the absence of consent written consent. involved written disclosure). evidentiary priv- As for an HIPAA FER- 50 7111. Unlike P.S. however, FERPA ilege creates none. PA, interpreted has been the MHPA provide “statutory privi- 21 also contends lege confidentiality patient’s on the rec- Pennsylvania’s against MHPA protects 407 Moyer, ords.” v. Commonwealth relating disclosure of documents to the (1991). 336, 1177, Pa.Super. Elwyn’s mental health treatment stu Hosp., In Zane Friends 575 Pa. dents, employees, clients, El and others. (2003), Supreme A.2d our Court wyn’s at protections brief 15. The of the (a) indicated that subsection of the above apply MHPA as follows: provision applied rights proce- This act establishes treat- regarding to all documents one’s for all involuntary dures treatment ment, just Fur- medical not records. mentally persons, ill inpatient whether thermore, the verbiage that the docu- outpatient, voluntary or and for all inpa- kept ments ‘shall confidential’ mentally persons. tient treatment of ill plainly discretionary mandatory not but “Inpatient treatment” shall include all requirement. in this context—it is a requires treatment part-time full or The release documents is contin- in a facility. purpose residence For the gent upon person’s written consent act, a “facility” mental means and the documents not be released establishment, clinic, health in- hospital, anyone’ ‘to without such consent. stitution, center, center, day care base unit, community service health mental only exceptions prohibition The to this center, thereof, part provides is if at issue writ- person given has diagnosis, treatment, rehabil- care or ten to the doc- consent disclosure of the mentally itation of ill persons, whether ifor one uments disclosure falls into outpatients inpatients. as exceptions prohibition of the four to the against disclosure. confidentiality P.S. The MHPA provisions state in pertinent part as fol- exception for legal proceedings Id. The lows: only applies those that are authorized act, such proceedings under the Confidentiality § 7111. of records id., treatment, emergency involuntary (a) All documents concerning persons therefore, would, applicable not be in the and, shall be kept treatment confidential Zane, sought plaintiff instant case. consent, the person’s
without written her inpatient mental health records of may not be released or contents their but, pursuant pro- assailant broad anyone except: disclosed confidentiality tection to of these records (1) engaged providing those treat- MHPA, the under the Court determined the person; ment for exceptions confidentiality ap- no underlying trial court plied and that *12 1062 lead to a and “clearly trusting and client that will compelling disclosure was open attorney- Id. at 33. Zone court the dialogue.
erroneous.” The While “governs mandated, that the MHPA the statutorily also noted privilege client is provision inpatient psychiatric treat- requirements it has number of that a involuntary outpatient treat- ment and trigger must in order to its be satisfied However, Zane, in Id. it was clear ment.” protections. First and foremost is the improperly that the order at issue com- applies privilege only rule that the pelled inpatient psychiatric the release by communications made confidential facility that records from a fell within the in attorney to the connection client purview of the MHPA. providing legal with services. case, 22 In the instant it is not (citation Gocial, quo- at 1222 and record, nor appear clear from the does it omitted). attorney tation The marks work contemplated, that the trial court whether product provides, essentially, that doctrine “facility” the definition Elwyn meets of a include “discovery shall not disclosure the MHPA. See 50 under P.S. party’s a impressions the mental attor- However, remand, upon if the trial conclusions, ney opinions, or his or her in sought determines that the materials summaries, memoranda, legal notes or re- discovery regarding are “documents one’s legal search theories.” Pa.R.C.P. or “facility” and that is a treatment” Additionally: 4003.3. MHPA, then the court must under adjustments purpose The of the appropriate underlying work- make See, e.g., product breadth of its orders. is to shield mental doctrine Cross, Independence processes attorney, providing Gocial v. Blue 827 (conclud (Pa.Super.2003) A.2d which he can ana- privileged area within that, light of the it ing record as existed lyze prepare and his client’s case. The necessary on remand was for the appeal, adversary system promotes doctrine discovery requests trial court to review by attorneys prepare enabling cases light privileges by plaintiff raised product that their work will without fear instances, some in camera “[i]n However, clients. against be used their may required”). be is not work-product privilege abso- may lute items be deemed discover- ¶23 Next, Elwyn claims that sought “product” able becomes discovery order docu encompasses in the action. relevant issue attorney-client protected ments attorney privilege product and the work (citations Gocial, 827 A.2d at attorney-client privilege is doctrine. The omitted). Instantly, El- quotation marks as follows: codified wyn merely argues broadly-word- not In a civil matter counsel shall be provide do not “for the ed permitted testify or to con- competent portions thereof exclusion of documents him communications made to fidential might subject to the attorney-client be client, shall by his nor the client be privilege product the work doctrine.” same, unless in compelled to disclose However, impossible it Court to privilege upon case this is waived either any privilege applies determine whether the trial the client. identify failed to or de- when has 5928. As noted in Pa.C.S. Gocial: that may documents any scribe such conclude, Thus, as we did in protected. we attorney-client privilege The exists Gocial, attorney foster a confidence between remand,
we cannot noting determine on the record be- that the court conduct fore us whether and to what extent in camera review of documents identified here_ privileges apply by Elwyn subject to a privilege, to be *13 [T]he trial court did not rule on the issues, analyze privilege better the as privilege relevance of each item [on needed. log that in explain existed or ] Gocial ¶ Finally, 24 Elwyn asserts an evi
why privileges inapplica- raised were dentiary in privilege personnel its files but Rather, ble. simply the court deemed provided any precedential has not us with log the entire discoverable. We believe authority privilege that such a exists in this was error. Pennsylvania. Elwyn’s Accordingly, final record, light In we conclude argument regard in this is without merit. that a remand necessary so that the ¶ reasons, For foregoing we va- trial may ruling issue a with re- cate the March spect actually to each document sought to remand the trial court with instruc- instances, In defendants. some tions opinion. contained in camera review required. case,
Id. at In 1223. the instant we do not ¶26 Orders vacated. Case remanded. even have a situation where there is a relinquished. Jurisdiction privilege log, any let alone indication or ¶27 Judge concurring Colville files a analysis on the part of the trial court with statement. regard to documents that deemed protected by the attorney-client privilege CONCURRING STATEMENT BY and work product doctrine. We remind COLVILLE, J.: Elwyn that, party as the invoking these privileges, it initially join Majority’s must “set forth facts 1 I well-reasoned showing that the privilege prop- has been persuasive Opinion. separate- I write erly invoked; then the burden shifts ly express concerns I have with manner party seeking disclosure to set forth facts Appellants sought appeal which from showing that disclosure will not violate the two non-final orders. attorney-client privilege, e.g., because the ¶2 26, 2007, On March the trial court privilege has been or waived because some orders, filed two A B. Orders On exception applies.” Nationwide Mut. Ins. 28, 2007, Appellants March filed a notice of v. Fleming, Co. appeal they gave they in which notice that (citations omitted). (Pa.Super.2007) Ac- 12, 2007, appealing April were Order B. On cordingly, party asserting “[i]f Appellants filed motion for reconsidera- privilege does not produce sufficient facts appellate tion certification of Order and/or privilege properly show was Then, 16, 2007, April Appellants A. on invoked, then the burden never shifts to appeal they another notice of which party, the other and the communication is they gave appealing notice that were Or- protected not attorney-client privi- under 20, 2007, April they der A. On filed a If, lege.” remand, Id. at upon El- motion for appellate reconsideration and/or
wyn identify is able to certain materials certification of Order B. encompassed in the request that subject trial attorney-client are 3 The court never ruled on the privilege doctrine, Ac- product requests appellate work then the trial certification. court will be able to cording Appellants, pursuant assess whether those to Pa. 1311(b), materials are requests discoverable. We therefore R.A.P. their were appellate upon the “Bible” of expiration deemed denied thir- ty days, Appellants thus to file causing practice: review petitions for in this Court.5 Notice- not clear To the extent that it is that a ably petitions from Appellants’ absent particular order is fact review is reference to the order, right matter of as a collateral they appeal had filed from the notices has filing counsel the choice of either sought they same orders then have assumption a notice on discretionary this Court under its order, pursu- it is a collateral any event, authority. this Court denied by permis- ing interlocutory appeal *14 Appellants’ petitions review. for sion, assumption on the the re- ¶ The orders seek Appellants 4 to quirements a collateral order will of appeal appealable pursu- are not final and cases, not be In such the found. 341, they appeal- ant to Pa.R.A.P. are nor practice pursue cautious is to both right pursuant of to Pa.R.A.P. able as 311. options. if only is a That because position current is that the or- Appellants’ appeal for to is petition permission appealable are collateral as of ders filed, it ultimately is determined posi- a right under Pa.R.A.P. 313. Such that the order is a collateral order and Appellants tion the stance took contradicts a appeal notice of is correct See, petitions e.g., in their for review. petition procedure, filing Review, 6/19/07, Appellants’ Petition for at be permission appeal to will deeded (“Unless discretionary 4 this grants Court insufficient, right to an imme- and the review, [Appellants] required will be appeal diate will be lost. 2[6], comply with Order of March Similarly, though may even an order be 2007....”). that, Appellee contends be- order, as if appealable a collateral peti- Appellants’ cause this Court denied as appellant treats the order interlocu- review, Appellants precluded tions for are appealable Rule tory under 1311 appeal ques- in seeking from the orders 341(c), may quashed if appeal Rule an tion Pa.R.A.P. 313. follow the appellant proce- fails to response preclusion to Appellee’s prescribed securing dures interlocu- ap- argument, Appellants they acted insist tory review. by simultaneously filing propriately notices al., Darlington Pennsylvania Ap- See et discretionary appeal seeking review (2004 2d, § pellate Supp.) Practice 313:3 Ap- A and B. The backbone of Orders (citations added). omitted; emphasis argument regard is pellants’ as at Appellants’ Reply Brief follows: options Appellants’ argument fails take [Appellants] had two 8, 2004, that, challenge the Orders. The into account on December March 23rd options Supreme adopted proper practice is to utilize both our Court 1316, because, denied, Appellate Procedure which the event one is the Rule February effective 2005.6In explained other remains viable. As became on rules, appeal parties any advocacy these after an taken provide 5. The do not scribed is sought, quasijudicial of a order is concerning filing Appellants’ effect or review government trial court or other unit appeal trial notices of had on the court’s matter.”). longer proceed in the no further ability to amend the 26th orders to March 702(b). comport with Pa.C.S.A. See Pa. 1701(a) pre provides: (“Except 6. Rule 1316 R.A.P. as otherwise 702(b) fact, in 42 adoption guage specified since the of Pa.R.A.P. Pa.C.S. with Pennsylvania Appellate Practice now of the Judicial Code must be filed government states: the lower court or unit days entry after the within 30 To the extent that it is not clear that a interlocutory question. order in particular appealable order is as a mat- interlocutory appeal process order, ter of Where right as a collateral counsel initiated, should follow the counsel filing has the choice of either a notice of procedures faithfully, and not intermin- (or review) appeal petition for on the procedures governing ap- them with gle order, assumption that it is a collateral peals right. as of The “safe harbor” pursuing interlocutory appeal provisions guarantee of Pa.R.A.P. 1316 permission, assumption on the that that even an order is requirements of a collateral order will right by appeal, petition notice of cases, not be found. In such counsel permission appeal petition or a should not but instead should for review from the trial court’s refus- interlocutory by permis- seek *15 order, al to amend its would be treat- sion to Pa.R.A.P. 1311. If appeal. ed as a notice of upon of petition permission review a for seeking In trial court certification to appeal petition or a for review from appellate permission appeal, and to the trial should, argu- counsel in addition to (b) Additional requirements. ap- The support permission ap- ments in pellate may require court any addi- peal, appeal make the case for an as tional actions necessary perfect right. appeal, court’s refusal to amend its al., et Darlington G. Ronald permit order to filing petition of a (2006 ed.) (foot- permission Appellate for Practice appeal, 313:3 appellate added). emphasis notes omitted and court ap- concludes that the order is pealable as of right as a collateral ¶ 7 Majority correctly points The out order, it timely will treat a peti- nothing precludes Rule 1316 tion for discretionary review a filing appeal of both a collateral timely appeal notice of petition for However, petition judicial for review. review, pursuant to Pa.R.A.P. 1816. economy is not allowing parties served hand, On the other if only a notice of separate argue to utilize two tracks to for appeal ultimately is filed and it non-final appeal immediate orders. decided that a petition permission for view, my parties, Appellants, such as appeal procedure, is the correct hand, an argue, wish to on the one time will passed pursue have and, appealable right order is as of on the interlocutory appeal by permission. hand, other that an order is An application for amendment of an discretionary authority, under this Court’s interlocutory then, order to include the lan- in order to consolidate this Court’s ía) (2) appellate party timely petition General rule. The court shall where a has filed a request discretionary treat a for review of for review from a trial court’s refusal of a immediately appealable an order which is timely application pursuant to Pa.R.A.P. following as a notice of under the 1311 to amend the order to set forth ex- circumstances: pressly specified in 42 the statement Pa.C.S. (1) party timely petition where has filed a 702(b). permission appeal pursuant for to Pa. Pa.R.A.P. 1316. 1311; R.A.P. efforts, arguments both of these should be
presented petition in a for review. Rule for Pa.
1316 allows this consolidation. See 1316(a) (“The
R.A.P. appellate shall request discretionary
treat a review of immediately appealable
an order which is ”). appeal....
as a notice of NERNBERG, Appellant A.
Maurice Lyons, Pittsburgh, appel- A. Joshua CITY OF DUBOIS. lant. Pennsylvania. Commonwealth Court of Dubois, Cherry, appellee. Toni M. Argued May 2008. FRIEDMAN, Judge, BEFORE: May Decided JUBELIRER, Judge, COHN *16 Reargument July COLINS, Denied 2008. Judge. Senior BY Judge
OPINION FRIEDMAN. Nernberg (Nernberg) ap- Maurice A. 20, 2007, peals September from the of the Court Common Pleas Clear- (trial (1) court), County grant- field which: part Nernberg’s part ed and denied challenge City (City) of Dubois’ request public deemed denial of his Right records under the act known as the (2) (Law);1 to Know Law denied request attorney fees and Nernberg’s Nernberg’s sponte costs. We sua dismiss juris- appeal because the trial court lacked diction to render a decision. 12, 2007,
By February dated letter City provide Nernberg requested that the copy opportunity for him to review and regarding City con- various materials Main tract for the North and South Street (SR4019) Project. By Replacement Sewer 21, 1957, amended, §§ 65 P.S. 66.1-66.9. Act of June P.L.