Forty Seven Hundred v. David Whitnack Distributing ( 2016 )

J-A33024-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FORTY SEVEN HUNDRED, L.P., FORTY IN THE SUPERIOR COURT OF
SEVEN HUNDRED, LLC, PENNSYLVANIA
GENERAL PARTNER AND ISRAEL M.
DOLGIN ASSOCIATES, LLC
v.
DAVID WHITNACK DISTRIBUTING,
INC. AND WILLIAM J. O'BRIEN, II,
ESQUIRE
Appellants No. 1110 EDA 2015
Appeal from the Order Entered March 31, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No: 01067 May Term, 2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J. FILED MAY 04, 2016
Appellants, attorney William J. O’Brien, II, and his client David
Whitnack Distributing, Inc., appeal from the March 31, 2015 order entered in
the Court of Common Pleas of Philadelphia County (trial court), imposing
discovery sanctions on Appellants in the amount of $500 each. Upon review,
we quash Appellants’ appeal.
The following is the background relevant to this appeal as summarized
by the trial court in its Pa.R.A.P. 1925(a) opinion.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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On March 31, 2015, this court granted reconsideration and
vacated its March 10, 2015 order disposing of [Forty Seven
Hundred, L.P., Forty Seven Hundred, LLC, and Israel M. Dolgin
Associates, LLC’s (Appellees’)] motion for sanctions. That same
date, this court entered a new order disposing of Appellees’
motion for sanctions. In its new order, which is the order
appealed from here, rather than impose the harsher penalty of
precluding [David Whitnack Distributing, Inc.] from introducing
evidence in support of its alleged defense through dispositive
motions and/or trial, this court imposed a less severe monetary
sanction of $500 each against [David Whitnack Distributing,
Inc.] and Mr. O’Brien as compensation for reasonable expenses,
including attorney’s fees, Appellees incurred in obtaining the
February 10, 2015 order compelling Mr. Whitnack to appear for a
deposition on or before February 24, 2015, and the March 31,
2015 order for sanctions after Mr. Whitnack failed to appear.
. . . On April 10, 2015, however, [David Whitnack Distributing,
Inc.] and its counsel filed the instant appeal from this court’s
March 31, 2015 discovery order imposing a modest monetary
sanction against them for their conduct and as compensation for
Appellees additional expense.
On April 20, 2015, this court issued an order (1) directing
[David Whitnack Distributing, Inc. and Mr. O’Brien] to file a
Pennsylvania Rule of Appellate Procedure 1925(b) statement and
(2) noting its belief that the March 31, 2015 order is
interlocutory and not immediately appealable and the instant
appeal should either be withdrawn or quashed. In their 1925(b)
statement, [David Whitnack Distributing, Inc. and Mr. O’Brien]
set forth five complaints of error, with only one directly related
to the March 31, 2015 order that was appealed from and the
others relating to the February 10, 2015 order compelling Mr.
Whitnack to appear for a deposition on or before February 24,
2015. Having reviewed the 1925(b) statement, and while
believing the complaints lack merit, it is the position of this court
that the instant appeal should be quashed because Appellants
are at best seeking review of an interlocutory and not
immediately appealable discovery sanctions order.
Trial Court Opinion, 5/15/15, at 5-7.
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On appeal, Appellants argue both that the trial court’s March 31, 2015
order imposing discovery sanctions is an abuse of discretion and
immediately appealable as a collateral order under Pa.R.A.P. 313.
Appellants’ Brief at 4.
As the trial court points out, “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).” Trial Court Opinion,
5/15/15, at 7. Generally, discovery orders are interlocutory and, therefore,
not immediately appealable. Stahl v. Redcay, 897 A.2d 478, 487 (Pa.
Super. 2006). However, an order can be appealable if it meets the definition
of a collateral order under Pa.R.A.P. 313(b). Rule 313 defines a collateral
order as “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.” Pa.R.A.P. 313(b). Our Supreme
Court has explained that Rule 313 must be interpreted narrowly. Melvin v.
Doe, 836 A.2d 42, 47 (Pa. 2003). As such, all three elements of the
collateral order test must be satisfied or the order is not appealable as
collateral. Ben v. Schwartz, 729 A.2d 547, 551 (Pa. 1999); see also
Melvin, 836 A.2d at 47 (“[E]ach prong of the collateral order doctrine must
be met before an order may be considered collateral.”).
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Appellants’ appeal clearly fails prong three of the collateral order test.
Appellants’ only argument regarding this prong is that “irreparable loss of
the issue by postponement, is met through the principal of judicial economy.
. . . It would be a further injustice to engage in hypothetical considerations
as to whether or not the Appellant[s] can or will raise this issue again.”
Appellants’ Brief at 21.
Appellants’ argument does not comport with our jurisprudence. Our
Supreme Court requires the collateral order test be applied strictly “to
preserve the integrity of the general rule that only final orders may be
appealed.” In re Estate of Stricker, 977 A.2d 1115, 1119 (Pa. 2009). The
text of Rule 313 clearly establishes that an order is not collateral unless
postponement of the appeal until after final judgment in the case would
result in the claim being “irreparably lost.” Pa.R.A.P. 313(b); see Melvin,
836 A.2d at 47 (“Therefore, we must also give critical attention to the
remaining criteria of . . . and whether the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost.”). Appellants do not argue any rights would be irreparably
lost if review of the trial court’s March 31, 2015 order is postponed until
after final judgment, nor do they cite to any authority to support the claim
that their appeal need not strictly meet the third prong of the collateral order
test. Accordingly, we quash this appeal as interlocutory.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2016
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