J-A15040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LATISHA REED AND NADEEM : IN THE SUPERIOR COURT OF
PIERRE, INDIVIDUALLY AND ON : PENNSYLVANIA
BEHALF OF ALL OTHERS SIMILARLY :
SITUATED, :
:
:
v. :
:
: No. 3129 EDA 2018
BAYADA HOME HEALTH CARE, INC., :
:
Appellant
Appeal from the Order Dated September 26, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 00491 August Term, 2016
BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED JUNE 07, 2019
Appellant, Bayada Home Health Care, Inc., appeals from the order of
September 26, 2018, granting the motion to compel discovery of Appellees,
Latisha Reed and Nadeem Pierre, individually and on behalf of all others
similarly situated, and overruling Appellant’s objections to Appellees’ first set
of requests for production of documents. We quash this appeal.
The procedural history underlying this appeal is as follows. On
August 3, 2016, Appellees commenced this action by filing a class action
suit, alleging violation of Pennsylvania wage and hour statutes on behalf of
themselves and similarly situated nurses who constituted the suit’s potential
class members. On September 15, 2016, Appellees issued their first set of
requests for production of documents (“First RFP”) to Appellant, requesting
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* Retired Senior Judge assigned to the Superior Court.
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contact information and wage and hour data for all potential class members
in Pennsylvania. After Appellant failed to respond, on February 24, 2017,
Appellees filed a motion to compel discovery.
On March 17, 2017, the parties filed an “Unopposed/Joint Motion for
Protective Order” with a Stipulated Confidentiality Agreement attached as
Exhibit “A.” According to the Stipulated Confidentiality Agreement:
Information designated “Confidential,” including any copies,
notes, abstracts, or summaries thereof, shall be maintained in
confidence by the person to whom such materials are produced
or disclosed, and shall not be disclosed to any third person
except as follows: (a) any court and its staff; (b) any court
reporter who records any deposition or other testimony in this
case; (c) any counsel for the Parties and the employees of
counsel who have responsibility for this action, including
corporate counsel of any party; (d) any employee of Bayada who
is required in good faith to provide assistance in the conduct of
this litigation, including Bayada’s former employees, Ms. Reed or
Ms. Pierre, or Plaintiffs; (f) witnesses at depositions to whom
disclosure is reasonably necessary; (g) experts or consultants;
(h) any persons requested by counsel to furnish services such as
document coding, image scanning, mock trial, jury profiling,
translation services, court reporting services, demonstrative
exhibit preparation, class notification services, or the creation of
any computer database from documents; (i) the author or
recipient of the document; and (j) any other persons only by
written consent of the producing party or upon order of the
Court and on such conditions as may be agreed or ordered.
Unopposed/Joint Motion for Protective Order, 3/17/2017, Ex. “A,” Stipulated
Confidentiality Agreement, 3/8/2017, at ¶ 7 (emphasis added). In the ad
damnum clause of the Unopposed/Joint Motion for Protective Order, “the
Parties move[d] this [trial] Court to enter the accompanying Order” making
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the Stipulated Confidentiality Agreement an order of court. Id., ad damnum
clause. However, no executed order appears in the certified record.
On April 20, 2017, Appellant informed Appellees that it would be
willing to produce the wage and hour data from one of its 116 Pennsylvania
offices. On May 16, 2017, in a letter to Appellant’s counsel, Appellees
offered to limit their discovery request to wage and hour data from 10 to 20
of Appellant’s offices in Pennsylvania from August 3, 2013, until the present.
Letter from James C. Shah, Esquire, of Shepard, Finkelman, Miller & Shah,
LLP, to Thomas G. Collins, Esquire, of Buchanan Ingersoll & Rooney, P.C.
(May 16, 2017) at 1, attached to Defendant’s Memorandum of Law in
Opposition to Plaintiffs’ Latest Request for Class-wide Merits Discovery filed
June 12, 2017, as Exhibit “E.” Appellant rejected Appellees’ offer.
Following a status conference on May 31, 2017, the trial court ordered
parties to file briefs on the outstanding motion to compel discovery. On
June 12, 2017, Appellant filed its brief. The next day, Appellees filed a
second motion to compel. After Appellant filed its response to the second
motion to compel and Appellees filed their reply memorandum of law,
Appellees wrote a letter to the trial court – which was copied to Appellant’s
counsel – asserting “that they would limit their requests [to] the names,
addresses, emails and phone numbers for the class members.” Letter from
Michael D. Shaffer, Esquire, of Shaffer & Gaier, to the Honorable
Nina Wright Padilla (December 19, 2017) at 1, attached to Defendant’s Brief
in Opposition to Plaintiffs’ Motion to Overrule Improper Objections to
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Discovery and Compel Answers and Document Production pursuant to the
Court’s February 6, 2018 Orders,1 filed March 26, 2018, as Exhibit “E.”
On September 26, 2018, the trial court entered an order granting
Appellees’ motion to compel discovery and overruled Appellant’s objections
to Appellees’ First RFP (“September 26th Order”). The September 26th
Order stated: “[Appellant] must produce the names, addresses, phone
numbers and email addresses of the Class members in Pennsylvania within
20 days of the date of the docketing of this Order.” Appellant was not
ordered to produce personnel files, wage and hour data, or anything beyond
the potential class members’ contact information.
Appellant did not seek clarification from the trial court as to whether
the September 26th Order compelled production of complete personnel files
and/or wage and hour data of every potential class member nor did it move
for reconsideration of the order. On October 16, 2018, Appellant filed this
appeal.2
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1 The orders dated February 6, 2018, granted a different motion to compel
document production than the one at issue in the instant appeal and a
motion to compel Appellant to produce corporate designees for deposition.
Even though the letter from Attorney Shaffer to the trial court was attached
as an exhibit to an unrelated pleading, it was still made part of the certified
record and is available for our review.
2 Appellant filed its statement of errors complained of on appeal on
November 30, 2018.
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On December 27, 2018, Appellees moved to quash the appeal. On
February 8, 2019, this Court denied the motion without prejudice to
Appellees to raise the issue again in their appellate brief, which they did.
On January 29, 2019, the trial court issued a responsive opinion
recommending that this Court quash Appellant’s interlocutory appeal and
reiterating that its September 26th Order “ordered Appellant to produce the
names, addresses, phone numbers, and email addresses of the class
members in Pennsylvania within 20 days.” Trial Court Opinion, filed
January 29, 2019, at 1.
Preliminarily, we must determine whether this appeal is properly
before us. The threshold question in this case is whether this Court
possesses appellate jurisdiction over the order from which Appellant seeks
review.
The appealability of an order directly implicates the jurisdiction
of the court asked to review the order. This Court has the power
to inquire at any time, sua sponte, whether an order is
appealable. Pennsylvania law makes clear:
An appeal may be taken from: (1) a final order or an
order certified as a final order (Pa.R.A.P. 341); (2) an
interlocutory order as of right (Pa.R.A.P. 311); (3) an
interlocutory order by permission (Pa.R.A.P. 312, 1311, 42
Pa.C.S.A. § 702(b)); or (4) a collateral order (Pa.R.A.P.
313).
Commonwealth v. Tchirkow, 160 A.3d 798, 803 (Pa. Super. 2017)
(internal brackets and quotation marks and some citations omitted).
Appellant contends that the September 26th Order is appealable only
as a collateral order pursuant to Pa.R.A.P. 313. Appellant’s Brief at 67-77.
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Rule 313 of our Rules of Appellate Procedure, promulgated in
1992, solidified and codified the appealability of collateral orders.
The rule provides:
(a) General rule. An appeal may be taken as of right
from a collateral order of an administrative agency or
lower court.
(b) Definition. A collateral order is an order separable
from and collateral to the main cause of action where the
right involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably
lost.
The collateral order doctrine is to be construed narrowly to
preserve the integrity of the general rule that only final orders
may be appealed; thus, the requirements for a collateral order
are applied relatively stringently.
Generally, discovery orders are deemed interlocutory and not
immediately appealable, because they do not dispose of the
litigation. . . . We must review the trial court’s decision on an
issue-by-issue basis and every one of the Rule’s three prongs
must be satisfied before collateral appellate review is permitted.
McIlmail v. Archdiocese of Philadelphia, 189 A.3d 1100, 1104-05 (Pa.
Super. 2018) (citations and internal brackets and quotation marks omitted).
To satisfy the first prong, for an order to be “separable from and
collateral to the main cause of action[,]” it must be able to “be addressed
without an analysis of the merits of the underlying cause of action.” Id.
The ultimate issue in this case is whether Appellant failed to pay its nurses
for all work they purportedly performed in violation of Pennsylvania wage
and hour statutes. This claim need not be resolved in order to determine
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whether Appellant should provide the contact information of all potential
class members in Pennsylvania.3 Accordingly, this first prong is fulfilled.
In order to satisfy the “importance” prong, the order at issue must
“involve rights deeply rooted in public policy going beyond the particular
litigation at hand.” Id. at 1105.
Appellant argues that “the information sought by [Appellees] is private
information that is both confidential and proprietary in nature, and
implicates informational privacy rights and privacy concerns.” Appellant’s
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3 Throughout its brief, Appellant alleges that the September 26th Order
requires it to provide full personnel files for over 6,000 employees. We find
this assertion disingenuous. Appellees informed the trial court that they
“would limit their requests [to] the names, addresses, emails and phone
numbers for the class members[,]” and the trial court unambiguously stated
in both the September 26th Order itself and in its Pa.R.A.P. 1925(a) opinion
that Appellant need only “produce the names, addresses, phone numbers
and email addresses of the Class members in Pennsylvania[.]” Letter from
Michael D. Shaffer, Esquire, of Shaffer & Gaier, to the Honorable
Nina Wright Padilla (December 19, 2017) at 1, attached to Defendant’s Brief
in Opposition to Plaintiffs’ Motion to Overrule Improper Objections to
Discovery and Compel Answers and Document Production pursuant to the
Court’s February 6, 2018 Orders, filed March 26, 2018, as Exhibit “E”;
September 26th Order; Trial Court Opinion, filed January 29, 2019, at 1. If
Appellant was still confused as to the nature of the request, it could have
sought clarification from the trial court as to whether the September 26th
Order compelled production of complete personnel files of every potential
class member, but it chose not to do so. It also did not file a motion for
reconsideration of the September 26th Order, in which it could have
requested that the trial court provide greater specificity as to what
information and documents were or were not within the scope of the order.
We thus find nothing within the record to support Appellant’s specious
theory that the September 26th Order required it to produce anything
beyond potential Pennsylvanian class members’ contact information.
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Brief at 72.4 Although Appellant repeatedly refers to “privileged material” or
“privileged and confidential information,” id. at 68, 73-75, Appellant never
asserts any specific privilege. See generally id.
We find no case law directly on point, involving a challenge to a
discovery order for the personal information of third parties,5 and Appellant
provides us with none. Nonetheless, the Supreme Court of Pennsylvania has
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4 In support of its position that privacy concerns implicate public policy,
Appellant relies on a 2014 non-precedential, unpublished memorandum from
this Court, Tierney v. Verizon Pennsylvania, Inc., 105 A.3d 804, No.
1675 EDA 2013 (Pa. Super. filed July 29, 2014). Citation to unpublished
memorandum decisions predating May 1, 2019, is a violation of our internal
operating procedures. I.O.P. 65.37.
5 Admittedly, Red Vision Systems, Inc. v. National Real Estate
Information Services, L.P., 108 A.3d 54, 58-59 (Pa. Super. 2015),
involved a discovery order for the personal information of third parties;
nevertheless, this Court decided the privacy issue as it relates to the
“importance” prong of the collateral order test based upon the appellant
offering “virtually no description” of the alleged confidential and sensitive
information.
[W]e [we]re left to guess precisely what “confidential, sensitive
and non-public personal information” is contained in these
documents. Without any indication of what type of information
is contained in the documents, we are unable to determine that
[appellant] is seeking review of an important issue rooted in
Pennsylvania public policy.
Id. at 59 (citation to the record omitted). This Court found that it could not
rule on whether the privacy interest raised to the level of the importance
prong of the collateral order test without this information. Since the burden
was on the appellant, this Court concluded that the collateral order test was
not satisfied, and it granted plaintiffs’ motion to quash the appeal on that
issue. Id. at 60. Since, in the current action, we know that Appellees are
seeking the contact information of Appellant’s nurse-employees, Red Vision
is not directly on point.
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held, that “the mere assertion of a privacy interest related to discovery”
does not “implicate as-of-right interlocutory appellate review.” Dougherty
v. Heller, 138 A.3d 611, 628 (Pa. 2016).6 The Pennsylvania Supreme Court
has “ma[d]e the distinction among different orders of privacy interests, such
as those of a constitutional magnitude or recognized as such by statute, as
compared with lesser interests.” Id. at 628-29. For instance, a privacy
interest of a constitutional magnitude has included the “important
constitutional privacy rights of [a] child victim[.]” Id. at 629 n.10
(emphasis in original) (quoting Commonwealth v. Alston, 864 A.2d 539,
545 (Pa. Super. 2004) (en banc)). For an example of a “privacy interest”
recognized by statute, our Supreme Court found that a discovery order for
production of copies of a party’s tax returns was an “order giv[ing] rise to
[an] as-of-right appeal[] at the pretrial stage[.]” Id. at 628-29 & n.10
(citing Cooper v. Schoffstall, 905 A.2d 482, 485 (Pa. 2006)). A
“generalized claim” about privacy “is insufficient to raise the type of issue
which is ‘too important to be denied review’ under the collateral order
doctrine.” Id. at 631. In the current action, Appellant does not contend
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6 The appellant’s “position” in Dougherty “was premised on the claim that
[the a]ppellant had a right to pursue interlocutory appellate review under
the collateral order doctrine. See Pa.R.A.P. 313(a) (“An appeal may be
taken as of right from a collateral order of an administrative agency or lower
court.” (emphasis added))[.]” 138 A.3d at 616.
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that either a constitutional right or a statutory privacy interest are involved
in the discovery order at issue. Appellant’s Brief at 67-77.
Appellant also does not rely upon Pennsylvania State Education
Association v. Commonwealth, Department of Community and
Economic Development, 148 A.3d 142 (Pa. 2016) [hereinafter PSEA], in
its argument that the September 26th Order constitutes a collateral order
appealable as of right pursuant to Pa.R.A.P. 313. See Appellant’s Brief at
67-77. In fact, Appellant’s reply brief explicitly states: “To be clear,
[Appellant] does not cite [PSEA] as it pertains to Pennsylvania’s
jurisprudence on the collateral order doctrine.” Appellant’s Reply Brief at 19.
Additionally, we find no case law that relies upon PSEA to support a finding
that a discovery order is a collateral order under Pa.R.A.P. 313. Appellant
does, however, cite to PSEA in a different section of its brief to support its
argument that “ordering the disclosure of names, addresses, phone numbers
and email addresses of non-parties violates their right to informational
privacy.” Appellant’s Brief at 50-52.
To the extent that this privacy argument pursuant to PSEA can be
extrapolated to Appellant’s argument that the September 26th Order
qualifies as a collateral order, we find that Appellant misconstrues PSEA.
That case concerned the disclosure of personal information pursuant to a
public request under the Right to Know Law (“RTKL”), 65 P.S. §§ 67.101-
67.3104, and the Supreme Court of Pennsylvania held that there is a
“constitutional right to privacy in one’s home address in connection with
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RTKL requests.” PSEA, 148 A.3d at 144, 155 (citing Pennsylvania State
University v. State Employees’ Retirement Board, 935 A.2d 530, 539
(Pa. 2007) (right-to-know request)) (“personal information implicated by
rights to informational privacy, like home addresses or telephone numbers”),
156-58 (emphasis added) (citing Tribune-Review Publishing Co. v.
Bodack, 961 A.2d 110, 115-16 (Pa. 2008) (right-to-know request)) (“public
school employees have strong privacy interests in protecting their home
addresses from disclosure, in response to broad and generic requests based
upon no criteria other than their occupation”). The current action does not
involve a RTKL request, public employees, or a “broad and generic
request[.]” Id. at 158. Additionally, in Reese v. Pennsylvanians for
Union Reform, 173 A.3d 1143, 1159 (Pa. 2017), the Pennsylvania Supreme
Court reiterated that PSEA related to Commonwealth employees’ right to
informational privacy in his or her home address and what steps the
government must take before it may release personal information pursuant
to a RTKL request.
The current appeal concerns employees of a private corporation, not
individuals employed by the Commonwealth or other public entity.
Furthermore, the Stipulated Confidentiality Agreement in the current case
precludes the contact information of class members from being shared with
the general public or accessed by a member of the public at any time, unlike
the statutorily-sanctioned disclosure at issue in PSEA. In conclusion, PSEA
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does not permit Appellant’s assertions of a privacy interest to satisfy the
“importance” prong of the collateral appeal doctrine.
In addition to orders involving privacy interests of a constitutional
magnitude, orders that deny a claim of privilege -- such as the attorney-
client privilege, the doctor-patient privilege, or the work product doctrine --
and would result in the disclosure of the claimed privileged information
usually will be deemed appealable as collateral orders pursuant to Pa.R.A.P.
313. Commonwealth v. Williams, 86 A.3d 771, 780 (Pa. 2014) (attorney-
client privilege and work product doctrine); Ben v. Schwartz, 729 A.2d
547, 549 (Pa. 1999) (doctor-patient privilege); McIlmail, 189 A.3d at 1105
(attorney-client privilege and work product doctrine); Bousamra v. Excela
Health, 167 A.3d 728, 734 (Pa. Super. 2017) (same), appeal granted, 179
A.3d 1079 (Pa. 2018). An appellant must establish a specific privilege; the
collateral order test is not satisfied where only generalized, speculative
concerns about possible privilege are asserted. Gunn v. Automobile
Insurance Co. of Hartford, Connecticut, 971 A.2d 505, 512 (Pa. Super.
2009) (“speculative concerns do not rise to the level of a right too important
to be denied immediate appellate review”).
As noted above, despite repeatedly using the adjective “privileged” to
describe the requested materials, Appellant’s Brief at 68, 73-75, Appellant
never invoked a specific, named privilege. See generally id. Such vague,
generalized concerns about privilege do not satisfy the “importance” prong.
Gunn, 971 A.2d at 512.
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To summarize, Appellant failed to assert a constitutional or statutory
privacy interest or a specific privilege. See Dougherty, 138 A.3d at 628-
29; Williams, 86 A.3d at 780; Ben, 729 A.2d at 549 Bousamra, 167 A.3d
at 734; Gunn, 971 A.2d at 512. Its generalized concerns about privacy and
privilege are inadequate to satisfy the requirement of Pa.R.A.P. 313(b) that
“the right involved is too important to be denied review[.]” See McIlmail,
189 A.3d at 1104-05; Gunn, 971 A.2d at 512. Consequently, Appellant has
failed to satisfy the second prong of the test for the appealability of collateral
orders as it relates to the September 26th Order. See Pa.R.A.P. 313(b);
McIlmail, 189 A.3d at 1104-05. Since one prong fails, the entire test fails,
and collateral appellate review cannot be allowed. See McIlmail, 189 A.3d
at 1105 (“every one of the Rule’s three prongs must be satisfied
before collateral appellate review is permitted”).7
Accordingly, we quash the appeal. The September 26th Order thus
stands, and Appellant must provide discovery of all personal contact
information for all current and former employees who could constitute the
class members in Pennsylvania within 20 days of the date of this
memorandum. By a plain reading of the September 26th Order, Appellant is
not required to provide personnel files to Appellees at this time. To the
extent that any of the information provided is actually confidential as
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7 We therefore do not need to address Pa.R.A.P. 313(b)’s remaining prong.
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Appellant has alleged, Appellant may mark it as such, and it will be
protected pursuant to the Stipulated Confidentiality Agreement; we hence
advise the trial court to execute the order8 attached to the Unopposed/Joint
Motion for Protective Order and may add any additional language thereto
that it deems necessary to preclude Appellees’ counsel from releasing any of
the contact information provided by Appellant to any third parties.9 The trial
court shall order any additional relief or clarification that it deems fit.10
Appeal quashed. Oral argument cancelled. Case remanded.
Jurisdiction relinquished.
President Judge Emeritus Bender joins the memorandum.
President Judge Emeritus Gantman concurs in the result.
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8 If the trial court has previously signed the requested protective order, the
trial court should take all necessary steps to make it part of the certified
record, as it does not currently appear therein.
9 See Red Vision, 108 A.3d 54 (appellee had agreed to entry of protective
order); Gunn, 971 A.2d at 512 (confidentiality could be protected by entry
of protective order).
10 We suggest that Appellant only filed this appeal from an unappealable
order for purposes of delay; ergo, the trial court may fashion any remedy or
sanction that it deems necessary, including ordering Appellant to pay
Appellees’ costs and counsel fees for this appeal pursuant to 42 Pa.C.S.
§ 2503(7) (“The following participants shall be entitled to a reasonable
counsel fee as part of the taxable costs of the matter: . . . Any participant
who is awarded counsel fees as a sanction against another participant for
dilatory, obdurate or vexatious conduct during the pendency of a matter.”).
See also In re Barnes Foundation, 74 A.3d 129, 135 (Pa. Super. 2013);
Scalia v. Erie Insurance Exchange, 878 A.2d 114, 116 (Pa. Super. 2005).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/19
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