J-A07001-20
2020 PA Super 197
A.A. AND A.M. INDIVIDUALLY AND : IN THE SUPERIOR COURT OF
AS PARENTS AND NATURAL : PENNSYLVANIA
GUARDIANS ON BEHALF OF J.A., A :
MINOR :
:
:
v. :
:
: No. 1104 MDA 2019
STEPHAN R. GLICKEN, M.D.; LEHIGH :
VALLEY PHYSICIAN GROUP- :
HAZLETON; LEHIGH VALLEY :
HOSPITAL-HAZLETON, AND LEHIGH :
VALLEY HOSPITAL AND HEALTH :
NETWORK :
:
Appellants :
Appeal from the Order Entered June 21, 2019
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
201701972
BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.
OPINION BY OLSON, J.: FILED AUGUST 14, 2020
Appellants, Stephan R. Glicken, M.D. (individually, Dr. Glicken), Lehigh
Valley Physician Group-Hazleton (individually, LVPGH), Lehigh Valley
Hospital-Hazleton (individually, LVHH), and Lehigh Valley Hospital and Health
Network (individually, LVHHN), appeal from an order entered on June 21,
2019 in the Civil Division of the Court of Common Pleas of Luzerne County
that, among other things, denied Appellants’ motion to seal a petition to
approve a minor’s settlement agreement in a medical malpractice action. We
affirm.
J-A07001-20
The relevant factual and procedural background in this matter is as
follows. A.A. and A.M. (collectively, Appellees), acting individually and as
parents and natural guardians of J.A., a minor, commenced this medical
malpractice action by filing a complaint on February 23, 2017. The complaint
alleged, among other things, that J.A. sustained injuries after Dr. Glicken
negligently performed a newborn circumcision on J.A. at LVHH. Thereafter,
on March 1, 2019, the parties reached a settlement agreement. In addition
to resolving the parties’ disputed legal claims and fixing the amount of
compensation to be paid, the agreement included a confidentiality provision
in which Appellees agreed to refrain from comment on any aspect of the
litigation, including the facts of the case as well as the existence, terms, and
conditions of the settlement.
On or around April 20, 2019, Appellees filed a petition to approve the
settlement agreement reached on behalf of the minor, J.A. See Pa.R.C.P.
2039(a) (“No action to which a minor is a party shall be compromised, settled
or discontinued except after approval by the court pursuant to a petition
presented by the guardian of the minor.”). On June 4, 2019, the trial court
heard argument on Appellees’ petition to approve the settlement. At the same
time, Appellants orally requested that the trial court enter an order sealing
the petition to approve the settlement of J.A.’s claims. The trial court, on June
6, 2019, issued an order denying Appellants’ oral request, but allowed
Appellants 10 days to file a written motion. On June 17, 2019, Appellants filed
a motion to seal the petition to approve the settlement of J.A.’s claims.
-2-
J-A07001-20
The trial court convened a hearing to address Appellants’ motion on June
21, 2019. At the hearing, Appellants argued that their motion to seal
furthered two general interests, reduction of the chilling effect that disclosure
would have on future settlements and preservation of the parties’ interest in
privacy. Appellants did not, however, introduce witnesses or other evidence
to substantiate their claims. At the conclusion of the hearing, the trial court
denied Appellants’ motion to seal the petition to approve the minor’s
settlement agreement. The court, however, temporarily sealed the
agreement for 30 days and for the pendency of any related appeal.
Appellants filed a notice of appeal to this Court on July 3, 2019. On July
5, 2019, the trial court ordered Appellants to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellants timely
complied on July 23, 2019, complaining that the trial court abused its
discretion in denying their motion to seal the petition to approve J.A.’s
settlement agreement. The trial court filed its opinion on September 5, 2019.1
Appellants raise the following issue for our review:
Did the trial court err in denying Appellants’ uncontested motion
to seal [J.A.’s] settlement agreement in the instant matter?
Appellants’ Brief at 4.
Before we address the merits of Appellants’ claim, we confront the
related issues of whether Appellants challenge an appealable order and
____________________________________________
1 Appellees have not filed a brief before this Court or otherwise participated in
this appeal.
-3-
J-A07001-20
whether we may properly exercise appellate jurisdiction in this case. This
Court may raise jurisdictional issues sua sponte. See Zablocki v. Beining,
155 A.3d 1116, 1118 (Pa. Super. 2017) (“it is well-settled that [Superior
Court] may raise the issue of [its] jurisdiction sua sponte”), appeal denied,
172 A.3d 1121 (Pa. 2017). Since jurisdictional grounds for this appeal were
not immediately apparent,2 this Court, on September 12, 2019, directed
Appellants to show cause why this appeal was not subject to quashal as taken
from an unappealable interlocutory order. See Per Curiam Order, 9/12/19.
Appellants responded to our show cause order on September 20, 2019, and
we discharged our show cause order on September 25, 2019. See Per Curiam
Order, 9/25/19. Our order of September 25, 2019 referred the jurisdictional
issues to the merits panel for review.
Appellants’ docketing statement declared that Appellants appealed from
a final order as provided in Pa.R.A.P. 341. In their response to our show cause
order, however, Appellants argued that jurisdiction was proper under the
collateral order doctrine, as set forth in Pa.R.A.P. 313. See Appellants’
Response to Rule to Show Cause, 9/20/19, at 3. Specifically, Appellants
argued that their challenge to the trial court’s June 21, 2019 order was
separable from the underlying action because their claims addressed the
____________________________________________
2 Appellants did not appeal from a judgment but instead challenged an order
denying their motion to seal a petition to approve a settlement agreement
reached on behalf of a minor.
-4-
J-A07001-20
propriety of sealing a petition to approve a settlement entered on behalf of a
minor and, as such, could be resolved without considering the merits of the
malpractice litigation. Appellants next asserted that the confidentiality of a
settlement agreement reached on behalf of a minor implicated deeply rooted
public policy concerns which extend beyond the current appeal. Here,
Appellants pointed out that the order denying their motion to seal constituted
an abuse of discretion because it was contrary to the agreement of all litigants
and because public disclosure of the terms of the settlement agreement
contravened public policies aimed at protecting the interests of minor
plaintiffs. Lastly, Appellants argued that their claims would be irreparably lost
if appellate review was not immediately undertaken since the case would be
discontinued in view of the resolution of the parties’ dispute.
Pennsylvania law establishes:
[A]n 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).
Pace v. Thomas Jefferson University Hosp., 717 A.2d 539,
540 (Pa. Super. 1998)[.]
A collateral order is defined in Rule 313 as follows:
Rule 313. Collateral Orders
***
(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
-5-
J-A07001-20
question presented is such that review is postponed until final
judgment in the case, the claim will be irreparably lost.
Pa.R.A.P. 313(b). Our Supreme Court explained:
[T]he 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.
Melvin v. Doe, [836 A.2d 42, 47 (Pa. 2003).]
Stahl v. Redcay, 897 A.2d 478, 485 (Pa. Super. 2006), appeal denied, 918
A.2d 747 (Pa. 2007).
Consistent with the definition that appears in our appellate rules, our
Supreme Court has identified three elements that define a collateral
order - separability, importance, and irreparable loss if review is postponed.
See Ben v. Schwartz, 729 A.2d 547, 550 (Pa. 1999). An issue is separable
if it can be examined without analysis of the claims presented in the underlying
litigation. See id. at 552. To determine whether an issue is sufficiently
important to support application of the collateral order doctrine, “[a court
should] weigh the interests implicated in the case against the costs of
piecemeal litigation.” Id. “[I]t is not sufficient that the issue be important to
the particular parties. Rather it must involve rights deeply rooted in public
policy going beyond the particular litigation at hand.” Id., quoting Geniviva
v. Frisk, 725 A.2d 1209, 1213-1214 (Pa. 1999). “[A]n issue is important if
the interests that would potentially go unprotected without immediate
-6-
J-A07001-20
appellate review [] are significant relative to the efficiency interests sought to
be advanced by adherence to the final judgment rule.” Finally, irreparable
loss results from postponement if no effective means of review exist after the
entry of final judgment. See Schwartz, 729 A.2d at 552.
After careful consideration, we conclude that appellate review is
appropriate under the collateral order doctrine. Appellants’ challenge to the
trial court’s June 21, 2019 order requires that we balance the parties’ interest
in confidentiality against the public’s right of access to judicial records. As
such, the present appeal is entirely separable from the merits of the
underlying medical malpractice action. In addition, although we have not
located a prior case discussing the public’s right to examine judicial records
pertaining to a minor plaintiff, we note that the nature, scope, and extent of
the public’s right of access to judicial records, in general, has long been
recognized as a matter deeply rooted in public policies that extend beyond the
present appeal. See R.W. v. Hampe, 626 A.2d 1218, 1220 (Pa. Super.
2006) (explaining importance of public’s access to civil trials and observing
that community’s common law right of access to judicial proceedings and
inspection of judicial records is beyond dispute). Bearing in mind that the
parties have already resolved their dispute and it is likely that this case will
be discontinued on remand, immediate appellate review of the interests at
stake assumes even greater importance and urgency in view of the diminished
concern for judicial efficiency and the reduced likelihood of piecemeal
-7-
J-A07001-20
litigation. Lastly, and for related reasons, we agree with Appellants that their
claims will be irreparably lost if this appeal is denied since it is improbable that
an appealable order will furnish Appellants an opportunity to raise their claims
in the future. Because Appellants’ challenge to the trial court’s June 21, 2019
order meets the prerequisites for the collateral order doctrine, we shall
proceed to the merits of Appellants’ claims. See id. (order partially sealing
record in medical malpractice case appealable as a collateral order as it is
separable from main cause of action, implicates issues too important to be
denied review, and poses risk of irrevocable harm if left to stand until final
disposition).
We turn now to the merits of Appellants’ claim that the trial court
improperly denied their motion to seal the petition for approval of the
settlement agreement. A trial court's decision to grant or deny closure of the
record will be reversed by this Court only upon a determination that the trial
court abused its discretion. Id.
“In order to justify closure or sealing the record a party must overcome
the common law presumption of openness.” Id. Fundamental to democratic
government, public access to civil trials enhances the quality of justice, affords
a broader understanding of the operation of the courts, and promotes
confidence in and respect for our judicial system. See id. at 1220-1221. To
rebut the presumption of openness, and to obtain closure of judicial
proceedings and records, a party must demonstrate “good cause.” See
-8-
J-A07001-20
Goodrich Amram 2d § 223(a):7. Good cause exists where closure is
“necessary in order to prevent a clearly defined and serious injury to the party
seeking” it. Id.
Appellants argue that the trial court abused its discretion in denying
their motion because they established good cause to believe that definite and
serious injuries would result from the court’s refusal to seal the petition to
approve J.A.’s settlement. In their brief, Appellants maintain that disclosure
of the terms of the parties’ settlement agreement could adversely affect J.A.
and chill future settlement of malpractice litigation. See Appellants’ Brief at
9. Appellants also complain that the trial court wrongly disregarded the
parties’ agreement in refusing to seal the petition for approval. Id. According
to Appellants, the trial court’s ruling will dissuade cooperation between future
litigants and frustrate the settlement of personal injury actions.
After careful review, we are unable to conclude that the trial court erred
or abused its discretion. As a preliminary matter, the trial court correctly
concluded that Appellants did not meet their burden of showing good cause
for sealing the record in this case. Although Appellants broadly alleged that
the challenged order would chill settlement in future malpractice actions, they
offered no evidence to substantiate this claim. Moreover, the trial court
correctly observed that the chilling effect on settlements is insufficient,
standing alone, to overcome the compelling public interest in open records.
See Trial Court Opinion, 9/5/19, at 5. Additionally, Appellants did not show
-9-
J-A07001-20
that public disclosure of the petition to approve would result in particularly
serious embarrassment. In fact, Appellants have not rebutted the trial court’s
observation that disclosure of the petition to approve would not harm any
litigant’s interest in privacy since many documents already in the public sphere
reveal the salient facts in this case. See id. at 6. Lastly, Appellants have not
shown that the trial court improperly disregarded the parties’ agreement
regarding nondisclosure. Instead, the record and the trial court’s opinion
confirm that the court denied Appellants’ motion to seal because good cause
to overcome the presumption favoring public access did not exist.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/14/2020
- 10 -
A.A. and A.M. v. Glicken, S.
Combined Opinion