J-A07016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CASCADES TISSUE GROUP : IN THE SUPERIOR COURT OF
PENNSYLVANIA, A DIVISION OF : PENNSYLVANIA
CASCADES HOLDING US INC., :
RITCHIE KARUZIE AND STANLEY :
MAZALESKI, III :
:
:
v. :
: No. 1476 MDA 2019
:
READING BLUE MOUNTAIN AND :
NORTHERN RAILROAD COMPANY :
:
:
APPEAL OF: CASCADES TISSUE :
GROUP PENNSYLVANIA, A DIVISION :
OF CASCADES HOLDING US INC. :
Appeal from the Order Entered August 15, 2019
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 3021-CV-2018
CASCADES TISSUE GROUP : IN THE SUPERIOR COURT OF
PENNSYLVANIA, A DIVISION OF : PENNSYLVANIA
CASCADES HOLDING US INC. :
:
Appellant :
:
:
v. :
: No. 1479 MDA 2019
:
READING BLUE MOUNTAIN AND :
NORTHERN RAILROAD COMPANY :
Appeal from the Order Entered August 8, 2019
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2018-03021
BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 19, 2020
J-A07016-20
Appellant, Cascades Tissue Group Pennsylvania, appeals from the
Orders entered in the Lackawanna County Court of Common Pleas on August
8, 2019, and August 15, 2019, compelling Pierre Brochu and Annie Buzzanga
to appear for depositions. Following careful review, we are constrained to
quash these consolidated appeals.
Briefly, this matter involves a property dispute concerning two railroad
crossings near a paper mill owned by Appellant in Ransom Township,
Lackawanna County. Appellee, Reading Blue Mountain and Northern Railroad
Company, sought to depose Appellant’s parent company’s in-house attorneys
Brochu and Buzzanga. On August 8, 2019, the trial court granted Appellees’
Motion to Compel Brochu’s oral deposition. On August 15, 2019, the trial
court denied Appellant’s Motion for a Protective Order, which reiterated the
court’s Order concerning Brochu, and compelled Buzzanga’s appearance at a
deposition. This appeal followed.
Appellant raises four issues on appeal.
1. Whether the [t]rial [c]ourt erred in granting a motion to compel
the deposition of in-house counsel when the party seeking to
depose the attorneys failed to present the [t]rial [c]ourt with
any basis for such an extraordinary discovery order[?]
2. Whether the [t]rial [c]ourt erred in denying a motion for
protective order to prohibit the deposition of in-house counsel
for a corporate party, where a protective order is required to
safeguard the attorney-client privilege and information subject
to protection under the work product doctrine[?]
3. Whether a party seeking to depose an attorney for an adverse
party must demonstrate a compelling need for the testimony
of the attorney and that the information sought from the
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attorney is not otherwise available from a non-privileged
source[?]
4. Whether [Appellee] failed to demonstrate any need for the
testimony of []Appellant’s in-house counsel, or that the
information it sought from []Apppellant’s lawyers could not be
obtained from a non-privileged source[?]
Appellant’s Brief at 7.
Each of Appellant’s issues challenge the trial court’s Orders based on an
assertion of an attorney-client and work product privilege. However, before
we address the merits of Appellant’s claims, we must determine whether the
trial court’s Orders are appealable. In re Miscin, 885 A.2d 558, 560-61 (Pa.
Super. 2005). “The question of the appealability of an order goes directly to
the jurisdiction of the Court asked to review the order.” Moyer v. Gresh, 904
A.2d 958, 963 (Pa. Super. 2006) (citation omitted).
Generally, “unless otherwise permitted by statute, only appeals from
final orders are subject to appellate review.” Commonwealth v. Sartin, 708
A.2d 121, 122 (Pa. Super. 1998) (citation omitted). In relevant part,
Pennsylvania Rule of Appellate Procedure 341 defines a “final order” as any
order that “disposes of all claims and of all parties.” Pa.R.A.P. 341(b)(1).1
The discovery Orders at issue here are not final orders as they do not
dispose of all claims and of all parties, nor are they appealable as of right
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1Rule 341 also defines a “final order” as any order “entered as a final order
pursuant to [Pa.R.A.P. 341(c)].” Pa.R.A.P. 341(b)(3).
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pursuant to Pa.R.A.P. 311.2 Appellants did not ask for or receive permission
to appeal the Orders pursuant to Pa.R.A.P. 312.3 Thus, the question before
this Court is whether the Orders in this case are appealable under the
collateral order doctrine. See Pa.R.A.P. 313.
Pennsylvania Rule of Appellate Procedure 313 defines a collateral order
as one that: “1) is separable from and collateral to the main cause of action;
2) involves a right too important to be denied review; and 3) presents a
question that, if review is postponed until final judgment in the case, the claim
will be irreparably lost.” In re Bridgeport Fire Litigation, 51 A.3d 224, 230
n.8 (Pa. Super. 2012) (citation omitted); Pa.R.A.P. 313(b). Our Supreme
Court has emphasized that:
the collateral order doctrine is a specialized, practical application
of the general rule that only final orders are appealable as of right.
Thus, Rule 313 must be interpreted narrowly, and the
requirements for an appealable collateral order remain stringent
in order to prevent undue corrosion of the final order rule. To that
end, each prong of the collateral order doctrine must be clearly
present before an order may be considered collateral.
Melvin v. Doe, 836 A.2d 42, 46-47 (Pa. 2003) (internal citations omitted).
A discovery order is collateral and “separable” from the main cause of
action if it is capable of review without considering the underlying merits of
the case. See Ben v. Schwartz, 729 A.2d 547, 551-52 (Pa. 1999)
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2 Pa.R.A.P. 311 enumerates those kinds of orders that are, despite being
interlocutory, appealable as of right. Pa.R.A.P. 311. Discovery orders are not
included in the enumeration of orders recognized as interlocutory but
appealable as of right.
3 Pa.R.A.P. 312 provides for appeals from interlocutory orders by permission.
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(concluding that the Bureau of Professional and Occupational Affairs’ claims of
privilege with respect to its investigative file were analytically separate from
the underlying claim of dental malpractice). See also Commonwealth v.
Blystone, 119 A.3d 306, 312 (Pa. 2015) (citation omitted) (stating that the
claim raised in the interlocutory appeal must be “conceptually distinct from
the merits of the plaintiff’s claim”).
The underlying litigation involves a property dispute over Appellant’s
alleged right to the use of two railroad crossings. The matter before this Court
is whether Appellant’s corporate employees—Brochu and Buzzanga—should
be precluded from appearing at depositions because they are Appellant’s in-
house counsel and could potentially invoke the attorney-client and work
product privileges. We conclude that we can address the current question
without the need to analyze the central issue of the case. Therefore, this
question is separable from the underlying cause of action, and Appellant has
satisfied the first prong of the collateral order analysis.
We must next consider whether the question before us involves a right
too important to be denied review. A right is too important to be denied review
if it “involves rights deeply rooted in public policy going beyond the particular
litigation at hand.” Jacksonian v. Temple Univ. Health Sys. Found., 862
A.2d 1275, 1280 (Pa. Super. 2004) (citation omitted). Often “[p]rivilege can
be a right too important to be denied review.” Id.
Appellant does not assert that, at this juncture, Appellee has sought any
privileged information from Appellant’s in-house counsel. Rather, Appellant
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asserts that a blanket, prospective attorney-client privilege applies to both
Brochu and Buzzanga because they obtained information about this matter
through conversations with Appellant’s employees in order to provide legal
advice and guidance to Appellant in connection with this litigation. Appellant’s
Brief at 24. Essentially, Appellant argues that the attorney-client and work
product privileges attach to Brochu and Buzzanga prospectively because there
are no questions Appellee could ask them the answers to which would not be
privileged. Additionally, Appellant represents that the trial court’s Orders
involve a right too important to be denied immediate review because: (1)
Appellee did not indicate the topic or scope of testimony sought from them;
(2) Appellee did not articulate a compelling need for information from them;
and (3) Appellee did not seek the deposition of a corporate designee of
Appellant who could testify to non-privileged facts. Id. at 25-26.
In denying Appellant’s Motion for a Protective Order, the trial court
opined as follows:
[Appellant’s] Motion for a Protective Order asks the [c]ourt to
accept that blanket attorney-client privilege and work[]product
protection exist due to a witness’s status as a member of the legal
profession. As noted in the [c]ourt’s August 15, 2019 Order,
[Appellant’s] argument requires a clairvoyance by [Appellant’s]
counsel because it requires him to be able to discern all questions
which will be asked by opposing counsel before any oral
examination has taken place. This clairvoyance would also be
needed to assess in advance each and every communication as
explicitly protected by the attorney-client privilege or the work
product doctrine without any advance knowledge of the questions
being asked, or information being sought. Further, a blanket
protective order shielding [Brochu and Buzzanga] potentially
prohibits [Appellee] from asserting any alleged exceptions or
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waiver in the context of an oral discovery deposition and [from]
potentially obtaining relevant, non-privileged information from
these witnesses.
[Appellant’s] counsel, in their arguments, clearly has attempted
to usurp the [c]ourt’s function to decide privilege or protection as
a question of law and attempts to make it a blanket privilege that
can never be reviewed by this [c]ourt because, in the exercise of
his clairvoyance, counsel has already decided the questions of law
at issue with regard to attorney-client privilege and work product
doctrine.
Trial Ct. Op., 11/12/19, at 10.
We agree with the trial court. Notwithstanding Appellant’s assertion
that the trial court’s Orders are collateral, our review of the Orders indicate
that they do not compel production of privileged information or documents.4
Rather, they merely compel the appearance at a deposition of Appellant’s
corporate in-house counsel, from whom Appellee may ultimately seek to
obtain non-privileged testimony and evidence. Appellant’s challenge to the
trial court’s Orders compelling Appellant’s in-house counsels’ appearances at
depositions fails to satisfy the second prong of the collateral order doctrine.
The final prong of the collateral order doctrine requires us to consider
whether, if we postpone review of Appellant’s privilege claim until final
judgment in the case, the claim will be irreparably lost. We conclude that,
because the court has not ordered Appellant’s to produce any identifiably
____________________________________________
4 In fact, Appellant conceded the speculative nature of its privilege claims.
See Notice of Appeal, 9/12/19 (describing the ordered depositions as
“risk[ing] the discovery of confidential attorney-client communications
and/or information that is protected from disclosure by the attorney work
product doctrine.”) (emphasis added).
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privileged information, Appellant’s premature claim will not be lost if we
postpone review. Appellant will not lose the right to protect privileged
information if we decline to review Appellant’s claim now because Appellant
has the opportunity to object to specific questions posed at Brochu’s and
Buzzanga’s depositions, and can seek review of any future orders that actually
compel production of purportedly privileged materials.
Accordingly, we conclude that this Court is without jurisdiction to review
these Orders. We, thus, quash these appeals.
Appeals quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2020
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