Haney, S. v. Range Resources ( 2016 )

J-A35021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STACEY HANEY, INDIVIDUALLY AND AS IN THE SUPERIOR COURT OF
A PARENT AND NATURAL GUARDIAN OF PENNSYLVANIA
HARLEY HANEY, A MINOR, AND PAIGE
HANEY, A MINOR AND BETH VOYLES
AND JOHN VOYLES, HUSBAND AND
WIFE, INDIVIDUALLY, ASHLEY VOYLES,
INDIVIDUALLY, LOREN KISKADDEN,
INDIVIDUALLY, GRACE KISKADDEN,
INDIVIDUALLY,
v.
RANGE RESOURCES-APPALACHIA, LLC,
NEW DOMINION CONSTRUCTION, INC.,
TERRAFIX ENVIRONMENTAL
TECHNOLOGY, INC., SKAPS
INDUSTRIES, INC., ENGINEERED
SYNTHETIC PRODUCTS, INC., RED OAK
WATER TRANSFER NE., LLC, MICROBAC
LABORATORIES, INC., MULTI-CHEM
GROUP, LLC, UNIVERSAL WELL
SERVICES, INC., HALLIBURTON ENERGY
SERVICES, INC., SAXON DRILLING, L.P.,
HIGHLAND ENVIRONMENTAL, LLC, EAP
INDUSTRIES, INC., AND TEST AMERICA,
INC.,
v.
STACEY HANEY, INDIVIDUALLY AND AS
A PARENT AND NATURAL GUARDIAN OF
HARLEY HANEY, A MINOR, AND PAIGE
HANEY, A MINOR AND BETH VOYLES
AND JOHN VOYLES, HUSBAND AND
WIFE, INDIVIDUALLY, ASHLEY VOYLES,
INDIVIDUALLY, LOREN KISKADDEN,
INDIVIDUALLY, GRACE KISKADDEN,
INDIVIDUALLY,
v.
SOLMAX INTERNATIONAL, INC.,
J-A35021-15
APPEAL OF: RANGE RESOURCES-
APPALACHIA, LLC,
Appellant No. 257 WDA 2015
Appeal from the Order Entered February 5, 2015
In the Court of Common Pleas of Washington County
Civil Division at No(s): Case No. 2012-3534
BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 29, 2016
Range Resources-Appalachia, LLC (“Range”) appeals from an order
quashing its privilege-based objection to service of a subpoena on URS
Corporation (“URS”) by Appellees, current and former residents of Amwell
Township, Washington County, Pennsylvania (“Residents”). We affirm.
Range is a natural gas drilling company. URS is an engineering and
design firm retained by Range. Residents live or lived within approximately
800 to 3500 feet of Range’s Yeager drilling site (“the Yeager Site”).
Residents filed the underlying action on May 25, 2012, for injuries and
property damage caused by environmental contamination and pollution
resulting from Range’s 2010-2011 drilling operations at the Yeager Site.
In support of its lawsuit, Residents sent Range a request for
production of documents on April 23, 2013, asking for, inter alia, “any and
all air testing Range had performed at any and all of its natural gas sites.”
Motion to Quash Objection, 12/30/14, at Exhibit A ¶¶ 12, 13. Range
responded on June 14, 2013, with an objection to the discovery request and
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a statement that “it has no air monitoring tests, studies, and air
disbursement modeling results regarding the Yeager Drill Site.” Id. at ¶ 12
RESPONSE.
Upon learning that Range had, in fact, retained URS at some point
after 2010 to conduct air testing at several Range sites, other than the
Yeager site, Residents filed a notice of intent to serve URS with a subpoena
on August 29, 2014. Motion to Quash Objection, 12/30/14, at Exhibit C
(Deposition testimony of Pete Miller) and Exhibit E (Notice of Intent). The
scope of the subpoena covered:
[a]ny and all documents and things related to inspections,
investigations, modeling (including air and water), monitoring
(including air and water), evaluations, testing, analysis
(including laboratory), studies, consultations or work activities
related to natural gas drill sites, well sites and impoundments
operated by Range Resources – Appalachia, LLC in Pennsylvania,
including but not limited to the “Yeager,” “Day,” “Carter” and
“Lowery” sites from July 2010 through the present.
Id. at Exhibit E. Range objected to the proposed subpoena, alleging that its
scope included privileged documents possessed by URS. Specifically, Range
asserted that it retained URS “as an expert consultant” and, therefore, the
requested discovery was protected under Pa.R.E. 4003.5(a)(3). Objection to
Notice of Intent, 9/18/14, at ¶¶ 2–6. Range also objected on grounds of
relevance, attorney work product, and attorney-client privilege. Id. at 7.
However, Range agreed to request documents from URS and “produce those
documents that are not privileged and are otherwise discoverable.” Id. at ¶
9.
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Residents filed a motion to quash Range’s objection and a motion to
compel discovery responses. Motion to Quash Objections and Motion to
Compel Discovery Responses, 12/30/14. The trial judge (now retired Judge
Debbie O’Dell-Seneca) granted Residents’ motions on December 30, 2014.
Order, 12/30/14. Residents served URS with a subpoena on January 2,
2015. Response in Opposition to Motion for Reconsideration, 1/13/15, at 9.
Range filed a motion for reconsideration, again asserting that it
retained URS “as an expert consultant in anticipation of litigation and in
preparation for trial,” and, therefore, the requested discovery was protected
under Pa.R.E. 4003.5(a)(3). Motion for Reconsideration, 1/8/15, at ¶¶ 1, 2.
In support of its motion for reconsideration, Range produced a November 8,
2011 engagement letter from its counsel to URS regarding “McAdams Road
Area Complaints, Amwell Township, Washington County, Pennsylvania.”
Supplemental Exhibit, 1/12/15, at Exhibit A (Engagement Letter, 11/8/11).1
Residents filed a response. Response in Opposition to Motion for
Reconsideration, 1/13/15, at 1.
In light of Judge O’Dell-Seneca’s retirement at the end of 2014,
President Judge Katherine B. Emery granted a stay of the December 30,
2014 discovery order and reassigned the case to Judge William R. Nalitz.
____________________________________________
1
We note that the last four lines of the first full paragraph of the letter are
redacted. Supplemental Exhibit, 1/12/15, at Exhibit A (Engagement Letter,
11/8/11).
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Order of Court, 1/13/15. Range then filed a motion to amend the
January 13, 2015 order, requesting that the trial court grant reconsideration
of the December 30, 2014. Motion to Amend, 1/23/15. On January 26,
2015, Judge Emery granted Range’s motion to amend, vacated the January
13, 2015 order, granted Range’s motion for reconsideration, and reaffirmed
her assignment of the case to Judge Nalitz. Order, 1/26/15. Residents filed
an emergency motion for reconsideration and clarification of the January 26,
2015 order, which Judge Emery denied. Emergency Motion, 1/29/15; Order,
1/29/15.
After a hearing and briefing, Judge Nalitz entered a decision on the
merits of the challenge raised in Range’s motion for reconsideration: He
affirmed the December 30, 2014 order that allowed Residents to serve a
subpoena on URS regarding the “production of any and all air monitoring or
testing or both performed at the Day, Carter and Lowery impoundments.”
Order, 2/5/15. The February 5, 2015 order did not discuss privileged
information under Rule 4003.5(a)(3), and it lacked any procedure for
protecting purportedly privileged documents in URS’ possession or balancing
Range’s privacy interest against Residents’ asserted need for the requested
discovery.
This appeal followed. Range and the trial court have complied with
Pa.R.A.P. 1925, and Range presents the following questions for our
consideration:
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I. Whether the lower court erred in entering an order
permitting service of an overly broad subpoena that would
require a party’s non-testifying expert to disclose
privileged material and work product (1) in violation of the
work product doctrine, the attorney-client privilege, and
Pennsylvania Rule of Civil Procedure 4003.5(a)(3), and (2)
[Residents] have not shown exceptional circumstances
warranting an exception to Rule 4003.5(a)(3).
II. Whether these errors are immediately appealable under
Pennsylvania Rule of Appellate Procedure 313.
Range’s Brief at 4.
As a preliminary matter, we address Residents’ contention that this
appeal is untimely and, therefore, should be quashed. Residents claim that
the trial court did not expressly grant Range’s motion for reconsideration,
but entered a stay without considering the merits of the motion for
reconsideration. Residents’ Brief at 22. Thus, Residents argue, this appeal
lies from the December 30, 2014 order granting its motion to quash Range’s
objection to the subpoena, not the order from which Range appealed on
February 9, 2015. Id. at 23. We disagree.
A court may grant a party’s motion to reconsider, but only if (1) a
motion to reconsider is filed within the appeal period; and (2) the court
expressly grants reconsideration within the appeal period. Pa.R.A.P.
1701(b)(3). Here, Range filed a motion for reconsideration of the
December 30, 2014 order on January 13, 2015, which was within the thirty-
day appeal period. In response, Judge Emery entered an order staying the
proceedings and assigning the case to Judge Nalitz. Order, 1/13/15.
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However, “an order that ‘all proceedings shall stay’ will not suffice” as a
grant of reconsideration. Pa.R.A.P. 1701, Note. Consequently, Range filed a
motion to amend the January 13, 2015 stay order on January 23, 2015.
Accepting Range’s argument, Judge Emery vacated the January 13, 2015
stay, expressly granted Range’s motion for reconsideration, and
reaffirmed her assignment of the case to Judge Nalitz on January 26, 2015,
which was still within the thirty-day appeal period. Order, 1/26/15.
Judge Nalitz affirmed the December 30, 2014 order on February 5, 2015,
and Range filed a notice of appeal five days later. Order, 2/5/15; Notice of
Appeal, 2/10/15. Thus, this appeal is timely. See Pa.R.A.P. 1701(b)(3)
(“Where a timely order of reconsideration is entered under this paragraph,
the time for filing a notice of appeal or petition for review begins to run anew
after the entry of the decision on reconsideration, whether or not that
decision amounts to a reaffirmation of the prior determination of the trial
court . . .”).
As Judge Emery observed, Residents’ counsel was “confusing a grant
of motion for reconsideration [with] a reversal of Judge O’Dell Seneca’s
order.” N.T., 1/29/15, at 7. However, a decision on a motion for
reconsideration and a decision on a challenge to the order to be
reconsidered are not one and the same. They are two distinct requests,
each requiring its own ruling. “If a trial court fails to grant reconsideration
expressly within the prescribed 30 days, it loses the power to act upon both
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the petition for reconsideration and the original order.” Gardner v. Consol.
Rail Corp., 100 A.3d 280, 283 (Pa. Super. 2014) (quoting Valley Forge
Center Associates v. Rib–It/K.P., Inc., 693 A.2d 242, 245 (Pa. Super.
1997)); Pa.R.A.P. 1701. This principle is premised upon application of 42
Pa.C.S. § 5505, which provides that “a court upon notice to the parties may
modify or rescind any order within 30 days after its entry ... if no appeal
from such an order has been taken or allowed.” Gardner, 100 A.3d at 283.
Judge Emery recognized this distinction when she advised Residents’ counsel
that she had granted the motion for reconsideration, but Judge Nalitz would
rule on the merits of Range’s challenge and “either affirm or change” the
December 30, 2014 order. N.T., 1/29/15, at 4. Judge Nalitz also recognized
this distinction. “[H]aving previously granted reconsideration of the Order of
December 30, 2014,” Judge Nalitz affirmed that order, thereby allowing
Residents to serve a subpoena on URS. Order 2/5/15. Hence, we deny
Residents’ motion to quash this appeal.
Next, we examine our jurisdiction to entertain this appeal. We
recognize that “most discovery orders are deemed interlocutory and not
immediately appealable because they do not dispose of the litigation.”
Veloric v. Doe, 123 A.3d 781, 784 (Pa. Super. 2015) (quoting Dougherty
v. Heller, 97 A.3d 1257, 1261 (Pa. Super. 2014) (en banc) (citation
omitted), appeal granted in part, 109 A.3d 675 (Pa. 2015)). “However,
certain discovery orders, particularly those involving ostensibly privileged
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material, have been found to be immediately appealable as collateral orders
pursuant to Pa.R.A.P. 313.” Veloric, 123 A.3d at 784 (citation omitted);
see also Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1016 n.1 (Pa.
Super. 2015) (“When a party is ordered to produce materials purportedly
subject to a privilege, we have jurisdiction under Pa.R.A.P. 313 . . .”).
“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.” Pa.R.A.P.
313(b). According to the Pennsylvania Supreme Court, “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). “Whether an order is
appealable under Pa.R.A.P. 313 is a question of law. As such, our standard
of review is de novo and our scope of review is plenary.” Rae v.
Pennsylvania Funeral Directors Ass’n, 977 A.2d 1121, 1126 n.8 (Pa.
2009). If the requirements of Rule 313 are not met, and in the absence of
another exception to the final order rule, an appellate court lacks jurisdiction
to consider an appeal of such an order. Id. at 1125.
Here, Range contends that the discovery order allowing Residents to
serve a subpoena on URS is separable from and collateral to the main cause
of action between Residents and Range for personal injury and property
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damage. Range’s Brief at 13. Range further claims that preventing
disclosure of its purportedly privileged material “is an important privacy right
deeply rooted in public policy.” Id. at 15. Lastly, Range asserts, “the
privileged nature of the documents in URS’s possession will be irreparably
lost if appellate review of the [discovery] Order is postponed until after final
judgment.” Id. at 16.
Upon review, we agree with Range that the challenged discovery order
is appealable as a collateral order. Accord Rhodes v. USAA Casualty Ins.
Co., 21 A.3d 1253, 1258 (Pa. Super. 2011) (“Generally, discovery orders
involving purportedly privileged material are appealable because if
immediate appellate review is not granted, the disclosure of documents
cannot be undone and subsequent appellate review would be rendered
moot.”). Thus, we now turn to the substantive issue raised by Range.
Range challenges the trial court’s order permitting Residents to serve a
subpoena on URS as noticed. Our standard of review in addressing the
propriety of a discovery order is whether the trial court committed an abuse
of discretion. Gallo v. Conemaugh Health Sys., Inc., 114 A.3d 855 (Pa.
Super. 2015). Whether a privilege protects a communication from
disclosure is a question of law. Saint Luke’s Hosp. of Bethlehem v.
Vivian, 99 A.3d 534 (Pa. Super. 2014), appeal denied, 114 A.3d 417 (Pa.
2015). “This Court’s standard of review over questions of law is de novo,
and the scope of review is plenary.” Id. at 540 (quoting In re Thirty–
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Third Statewide Investigating Grand Jury, 86 A.3d 204, 215 (Pa. 2014)
(internal citations omitted)). The “party invoking a privilege must initially
set forth facts showing that the privilege has been properly invoked.” Red
Vision Systems, Inc. v. National Real Estate Information Services,
L.P., 108 A.3d 54, 62 (Pa. Super. 2015). “Once the invoking party has
made the appropriate proffer, then the burden shifts to the party seeking
disclosure to set forth facts showing that disclosure should be compelled
either because the privilege has been waived or because an exception to the
privilege applies.” Yocabet, 119 A.3d at 1019 (citing Red Vision).
Judge Nalitz found that:
[d]espite two hearings, a brief, and a motion to reconsider,
Range Resources has failed to provide to the [c]ourt any
meaningful evidence that URS Corporation was retained in
anticipation of litigation or in preparation for trial. The exhibits
of the parties reflect that URS Corporation may have been
performing services for Range Resources as early as 2011. But
the record does not indicate whether URS Corporation was
retained at the behest of counsel, at the behest of the
Pennsylvania Department of Environmental Protection, or by
Range Resources for some other purpose. Therefore, [the court
found] that Range Resources has failed to demonstrate by a
preponderance of the evidence that URS Corporation is an expert
consultant. Accordingly, the Motion to Quash Objection was
GRANTED.
Trial Court Opinion, 4/1/15, at 4.2
____________________________________________
2
Noticeably absent from Judge Nalitz’s analysis is mention of Range’s
supplemental exhibit, the engagement letter. This omission and the jurist’s
reference to “any meaningful evidence” lead to an inference that he assigned
little or no weight to the engagement letter, which was within his discretion.
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Range asserted in the trial court and maintains on appeal that it
“retained URS on multiple occasions for distinct projects—including the
provision of services as an expert in anticipation of litigation and trial
preparation. . . . Therefore, discovery of information in URS’s possession
must be guided by [Pa.R.C.P.] 4003.5.” Range’s Brief at 18 (citing Cooper
v. Schoffstall, 905 A.2d 482, 492 (Pa. 2006)). Applying Rule 4003.5(a)(3),
Range argues that Residents “are not entitled to discover any facts known or
opinions held by URS in its capacity as an expert retained in anticipation of
litigation.” Id. at 19. Range further argues that Residents have failed to
establish extraordinary circumstances, pursuant to Pa.R.C.P. 4003.5(a)(3),
“that would exempt them from the general rule denying discovery” from a
non-testifying expert such as URS. Id. at 22.
Residents respond that Range failed to establish that the requested
material is protected. Residents’ Brief at 36. In support of their position,
Residents submit Range employee Pete Miller’s testimony that URS
conducted air monitoring at the Carter and Lowery impoundment sites “in
response to complaints received by surrounding landowners.” Id. (citing
Motion to Quash Objection, 12/30/14, at Exhibit C (N.T. Miller Deposition,
8/29/14, at 463–464)). Additionally, Residents point out that, at a public
hearing held before the underlying action was filed, Range’s counsel
informed the Cecil Township Board of Supervisors that Range paid “for a
half-million dollar study using URS consultants” to conduct air studies. Id.
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at 38 (citing Motion to Enforce Subpoena, 3/19/15, at Exhibit E (N.T.,
4/21/11, at 122)). When asked about the availability of emissions tests,
Range’s counsel informed the supervisors as follows:
[W]e do not have any results to share with you at this point. We
have decided that we are going to do local, regional, and shale-
wide evaluation. So it will ultimately be available. It does not
exist today. I can check to see what the schedule is for when
we’re going to have it. And I’d be happy to share that with you.
N.T., 4/21/11, at 122–123. According to Residents, “Range failed to meet
its burden and satisfy the Trial Court that documents in URS possession
were supported by privilege because Range could not differentiate . . . where
any claimed privilege began and where any claimed privilege ended.”
Residents’ Brief at 40. Residents also insist that Range waived its assertion
of a privilege by failing to raise it in response to discovery requests issued
before Range filed the engagement letter. Id. at 45.
Discovery in civil cases extends to “any matter, not privileged, which is
relevant to the subject matter involved in the pending action, . . . including
the . . . content . . . of any . . . documents,” subject to the provisions of
Pa.R.C.P. 4003.2 through 4003.5. Pa.R.C.P. 4003.1(a). The scope of Rule
4003.1(a) includes items prepared in anticipation of litigation or trial but not
core attorney work product. Pa.R.C.P. 4003.3. It also includes discovery
from non-party witnesses retained as experts who are expected to testify at
trial. Pa.R.C.P. 4003.5.
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Upon review, we discern no basis for disturbing the trial court’s
conclusion that Range failed to invoke the protection of Pa.R.C.P.
4003.5(a)(3). Even if counsel for Range engaged URS in 2011 as an expert
consultant in anticipation of litigation, Range admits that it also retained URS
as a non-expert “to perform air monitoring at select natural gas sites” and
that the scope of Residents’ subpoena includes “non-privileged materials.”
Range’s Brief at 6, 8. Moreover, the record establishes that URS performed
studies for Range at various sites as early as 2011. Motion to Quash
Objection, 12/30/14, at Exhibit C (N.T. Miller Deposition, 8/29/14, at 463–
464). In fact, in April of 2011, Range’s counsel expressed his willingness to
provide the Cecil Township Board of Supervisors with emissions testing
information once it was collected. N.T., 4/21/11, at 122–c123.
Furthermore, we are persuaded by Residents’ two-fold argument regarding
the relevance of studies conducted by URS at other sites: “the Day, Carter
and Lowery Impoundments were flowing their content back to the Yeager
Site” and “air monitoring performed at any other site is extremely relevant
regarding Range’s knowledge, or lack thereof, regarding emissions from
impoundments and related natural gas drilling facilities.” Residents’ Brief at
39. Based on the record at hand, we conclude that Range has no grounds
for objecting to Residents’ request for relevant information possessed by
URS in its capacity as an engineering consultant that was not retained in
anticipation of litigation. Pa.R.C.P. 4003.1.
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In sum, we discern no error of law or abuse of the trial court’s
discretion in allowing Residents to serve their subpoena upon URS. Needless
to say, the trial court has options for balancing Range’s interest in protecting
privileged information possessed by URS and Residents’ interest in receiving
relevant information to which they are entitled. See Berkeyheiser v. A-
Plus Investigations, Inc., 936 A.2d 1117, 1125 (Pa. Super. 2007) (“The
trial court is responsible for ‘overseeing discovery between the parties and
therefore it is within that court’s discretion to determine the appropriate
measure necessary to insure adequate and prompt discovering of matters
allowed by the Rules of Civil Procedure.’” PECO Energy Co. v. Insurance
Co. of North America, 852 A.2d 1230, 1233 (Pa. Super. 2004)).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/2016
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