Verloic, G. v. Doe, J. , 123 A.3d 781 ( 2015 )

J-A20022-15
2015 Pa. Super. 194
GARY VELORIC AND NANCY VELORIC, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellees
v.
JOHN DOE AND/OR JANE DOE,
APPEAL OF: JOHN DOE,
Appellant No. 121 EDA 2015
Appeal from the Order Entered December 1, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2012-19479
BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.
OPINION BY SHOGAN, J.: FILED SEPTEMBER 14, 2015
Appellants, John and/or Jane Doe, appeal from the trial court’s
December 1, 2014, order granting Gary and Nancy Veloric’s motion to
compel discovery. After careful review, we quash.
The trial court summarized the factual and procedural history of this
case as follows:
[Appellees] Gary Veloric and Nancy Veloric [(“the
Velorics”)] filed the Doe Motion seeking a court order compelling
[Appellants] John Doe and Jane Doe to appear for a deposition.
After briefing and argument, the [trial court] granted the relief
requested by [the Velorics] and ordered the Doe(s) to appear for
deposition (“the Doe Order.”).3 The Doe(s) refused to appear
and attend the deposition and filed the present appeal.
Recently, as discussed in more detail below, [the Velorics]
deposed Brad Heffler which in turn resulted in an appeal to the
Pennsylvania Superior Court at Docket Number 2998 EDA 2014
J-A20022-15
(“the Heffler Appeal”.) Both the Heffler Appeal and the Doe
Appeal involve motions to compel discovery in the underlying
Complaint.
3
The [trial court] ordered the [Appellants] to appear
for deposition within thirty days. See, Order dated
12/1/14 and docketed 12/3/14.
In the Complaint, [the Velorics] seek damages on behalf of
Gary Veloric for defamation, slander, libel, injurious falsehood,
and intentional infliction of emotional distress, and, damages for
loss of consortium on behalf of Nancy Veloric. [The Velorics]
averred that Nancy Veloric received a phone call on January 18,
2012 from an unidentified woman (“Jane Doe”) who claimed to
be Gary Veloric’s girlfriend and [Jane Doe] was angry because he
was having sexual relations with another woman. Nancy Veloric
questioned her husband regarding the phone call and he denied
the anonymous caller’s claims. After some research, Nancy
Veloric determined the phone number of the unidentified caller
included a Nashville, Tennessee area code, and was no longer in
service. Later in 2012, two emails were sent to Nancy Veloric,
alleging additional infidelities by her husband. Gary Veloric
denied these allegations.
[The Velorics] proceeded with discovery and issued
subpoenas to third parties Brad and Andrea Heffler to attend and
testify at depositions. The Velorics and the Hefflers share a
litigious history dating back several years to a time when they
shared a property line.9 In the Heffler Appeal, Brad Heffler was
deposed by [Appellants] on March 14, 2014 (“the Deposition”).
Heffler invoked the Fifth Amendment and refused to answer
several questions posed to him during the Deposition. [The
Velorics] filed a motion to compel Brad Heffler’s testimony (“the
Heffler Motion”), claiming that Heffler invoked the Fifth
Amendment “to virtually every question.” After hearing and
argument (“the Hearing”), the [trial court] ordered Heffler to
answer some of the questions at issue and sustained his
objections to others (“the Heffler Order”). Continuing to rely
upon the Fifth Amendment and/or attorney client privilege,
Heffler refused to answer those questions he was ordered to
answer that were not otherwise resolved, and, the Heffler Appeal
ensued.
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9
The Velorics and the Hefflers were previously
involved in litigation before the Montgomery County
Court of Common Pleas in the Matter of Gary Veloric
and Nancy Veloric v. Brad Heffler and Andrea Heffler,
et al., docketed at 2009-09902, in which the
Velorics’ [sic] raised claims of trespass, conversion,
waste, negligence, and, nuisance. At the time, the
Veloric and Heffler residences shared a property line
(“the Trespass Complaint”). There were also related
cases at Gary Veloric and Nancy Veloric v.
Montgomery County Lands Trust, docketed at 2010-
2140, and Gary Veloric and Nancy Veloric v.
Whitemarsh Township, docketed at 2009-42979.
Ultimately, a praecipe to settle, discontinue and end
was docketed in each of these three cases.
In the present Appeal, the Doe(s) refused to appear and
attend the scheduled deposition, despite the issuance of the Doe
Order requiring them to do so. The Doe(s) refusal to attend was
also based on Fifth Amendment grounds.
Trial Court Opinion, 4/13/15, at 1-4 (some internal footnotes omitted).
Appellants present the following issue for our review:
Did the lower court err in granting [the Velorics’] Motion to
Compel the deposition(s) of Appellant(s) where Appellant(s)
asserted their privilege against self-incrimination guaranteed by
the Constitutions of the United States and the Commonwealth of
Pennsylvania and where compelling Appellant(s) to appear for
their deposition(s) is tantamount to requiring them to relinquish
their constitutional protections[?]
Appellants’ Brief at 4.
Before addressing the merits of Appellants’ claims, we must determine
whether this matter is properly before us. Pennsylvania law makes clear:
[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).
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Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123 (Pa.
Super. 2007). “A final order is one that disposes of all the parties and all the
claims, is expressly defined as a final order by statute, or is entered as a
final order pursuant to the trial court’s determination.” Id. (citing Pa.R.A.P.
341(b)(1)-(3)). “[T]he appealability of an order goes directly to the
jurisdiction of the Court asked to review the order.” Berkeyheiser, 936
A.2d at 1123.
We further note that most “discovery orders are deemed interlocutory
and not immediately appealable because they do not dispose of the
litigation.” 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 material, have been found to be immediately
appealable as collateral orders pursuant to Pa.R.A.P. 313. Dougherty, 97
A.3d at 1261.
Appellants argue that this Court has jurisdiction over this matter
pursuant to Pa.R.A.P. 313. Appellants’ Brief at 9. The Velorics, conversely,
contend that this Court lacks jurisdiction over this matter, and that the order
at issue is not a collateral order pursuant to Pa.R.A.P. 313. The Velorics’
Brief at 1-2. Accordingly, the Velorics assert, this Court should quash this
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appeal and remand this case to the trial court for further proceedings. Id.
at 2.
A collateral order is an order [1] separable from and collateral to
the main cause of action where [2] the right involved is too
important to be denied review and [3] 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); Dougherty, 97 A.3d at 1261. “All three factors must be
present before an order may be considered collateral.” Dougherty, 97 A.3d
at 1261.
Additionally, in addressing collateral orders, our Supreme Court has
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, 46-47 (Pa. 2003).
In the present case, the order on appeal is the discovery order,
entered December 1, 2014, directing Appellants Doe to appear for
depositions. Appellants assert that an appeal may be taken as of right from
this order because it is a collateral order, as it meets the three prongs of the
collateral order test set forth in Pa.R.A.P. 313(b). Id. First, Appellants
contend, the issue of their privilege against self-incrimination, guaranteed by
the Fifth Amendment of the United States Constitution and Article I § 9 of
the Constitution of the Commonwealth of Pennsylvania, is separate from the
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merits of the Velorics’ underlying claims of defamation. Id. Appellants next
claim to have met the second prong as the privilege against self-
incrimination is “deeply rooted in public policy” and goes “beyond the
particular litigation at hand.” Id. at 10. Finally, Appellants assert that their
privilege against self-incrimination will be irreparably lost if review were
postponed until final judgment of the court. Id. at 11. Appellants contend
that “[a]ppearing at a deposition would inevitably result in the disclosure of
Appellant(s)[’] identit(ies), and Appellant(s)[’] identit(ies) alone could
subject them to criminal prosecution.” Id. at 12. The “criminal prosecution”
anticipated by Appellants is for the unlawful use of a computer, that carries a
five-year statute of limitations which has not yet run. Id. at 12, 16.
As noted above, an otherwise interlocutory order may be immediately
appealable as a collateral order if it satisfies all three prongs of the collateral
order test. Dougherty, 97 A.3d at 1261. Significantly, Pennsylvania courts
have held that discovery orders involving potentially confidential and
privileged materials are immediately appealable as collateral to the principal
action. Id. Here, Appellants have invoked their Fifth Amendment rights in
refusing to attend the deposition, so as not to reveal their identity. Thus, a
determination of whether Appellants have properly invoked the Fifth
Amendment privilege is relevant to the determination of whether the
discovery order is a collateral order.
The Fifth Amendment, in relevant part, provides that no
person “shall be compelled in any criminal case to be a witness
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against himself.” U.S. Const. Amend. V. “The Fifth Amendment
not only protects the individual against being involuntarily called
as a witness against himself in a criminal prosecution but also
privileges him not to answer official questions put to him in any
other proceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings.”
Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d
274 (1973). “[T]he availability of the [Fifth Amendment]
privilege does not turn upon the type of proceeding in which its
protection is invoked, but upon the nature of the statement or
admission and the exposure which it invites.” Estelle v. Smith,
451 U.S. 454, 462, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981)
(citation omitted). The Fifth Amendment privilege against self-
incrimination can be asserted in any proceeding “in which the
witness reasonably believes that the information sought, or
discoverable as a result of his testimony, could be used in a
subsequent state or federal criminal proceeding.” United
States v. Balsys, 524 U.S. 666, 672, 118 S. Ct. 2218, 141
L. Ed. 2d 575 (1998).
Commonwealth v. Brown, 26 A.3d 485, 493-494 (Pa. Super. 2011).
In determining whether an order is a collateral order, first, the order
must be separate and distinct from the underlying cause of action.
Berkeyheiser, 932 A.2d at 1123. This prong is met by the order sub
judice. The question of whether the Appellants properly invoked their Fifth
Amendment constitutional rights against self-incrimination may be
addressed without consideration of the merits of the Velorics’ underlying
defamation action.
The second prong of the collateral order test mandates that the order
“must involve rights deeply rooted in public policy going beyond the
particular litigation at hand.” Berkeyheiser, 936 A.2d at 1123. The courts
of this Commonwealth have held that discovery orders raising questions of
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privilege and privacy interests all raise the type of deeply rooted public
policy concerns necessary to qualify as a collateral order. See
Commonwealth v. Dennis, 859 A.2d 1270, 1278 (Pa. 2004) (finding a
discovery order compelling the production of defense notes taken during jury
selection process was a collateral order where the question of privilege
involving the work-product doctrine involved one of the most fundamental
tenets of our system of jurisprudence, deeply rooted in public policy); Ben
v. Schwartz, 729 A.2d 547, 552 (Pa. 1999) (determination as to whether
investigative files of Bureau of Professional and Occupational Affairs “are
subject to any executive or statutory privilege implicates rights rooted in
public policy, and impacts on individuals other than those involved in this
particular litigation.”); Berkeyheiser, 936 A.2d at 1124 (“the issues of
attorney-client and work-product privileges, as well as privacy concerns, [in
an order directing defendant to turn over discovery materials,] implicate
rights deeply rooted in public policy, especially where the disclosure of such
information affects individuals other than those involved in this particular
case.”).
While we agree that the privilege against self-incrimination is
protected under both the United States and Pennsylvania Constitutions, see
U.S. Const., Amend. V; Pa. Const., Art. I, § 9, and is so engrained in our
nation that it constitutes a right “deeply rooted in public policy,”
Berkeyheiser, 936 A.2d at 1123, we cannot agree that Appellants have
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properly invoked that privilege in this case. Appellants have not invoked the
privilege in the context of refusing to provide self-incriminating testimony.
Instead, Appellants have refused to appear for a deposition or provide any
testimony on the basis that doing so will reveal their identities.
As this Court has recognized, the United States Supreme Court in
Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004),
concluded the following regarding the Fifth Amendment: “The Fifth
Amendment states that ‘[n]o person ... shall be compelled in any criminal
case to be a witness against himself.’ To qualify for the Fifth Amendment
privilege, a communication must be testimonial, incriminating and
compelled.” Commonwealth v. Reed, 19 A.3d 1163, 1167 (Pa. Super.
2011).
Here, Appellants are not seeking to invoke the privilege against self-
incriminating compelled testimony as identified in Hiibel. Instead,
Appellants seek to use the Fifth Amendment privilege as a blanket protection
allowing them to hide their identities and avoid appearance for a court-
ordered deposition. We cannot agree that such overarching protection is
afforded by the Fifth Amendment.
“The Fifth Amendment privilege is not self-executing, and answers are
generally not considered compelled ‘within the meaning of the Fifth
Amendment unless the witness is required to answer over his valid claim of
the privilege.’” Commonwealth v. Knoble, 42 A.3d 976, 979 (Pa. 2012).
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Our Supreme Court has provided the following explanation regarding a
witness’s invocation of the Fifth Amendment privilege:
When an individual . . . is called to testify . . . in a judicial
proceeding, he or she is not exonerated from answering
questions merely upon a declaration that in so doing it would be
self[-]incriminating. It is also for the court to judge if the silence
is justified, and an illusory claim should be rejected. However,
for the court to properly overrule the claim of privilege, it must
be perfectly clear from a careful consideration of all the
circumstances, that the witness is mistaken in the apprehension
of self-incrimination and the answers demanded cannot
possibly have such tendency.
Commonwealth v. Long, 625 A.2d 630, 634 (Pa. 1993) (emphasis in
original) (citations omitted).
Thus, an attempt to invoke the Fifth Amendment privilege is specific to
the testimony being compelled. A court’s decision whether to allow an
individual to invoke the privilege takes into account the context of the
proposed testimony and must involve a determination as to whether such
testimony would be self-incriminating. Here, Appellants are not objecting to
any specific compelled testimony; Appellants simply want to invoke the
privilege so as to avoid providing any testimony. As a result, there is no
proposed testimony for a court to consider in the context of the privilege and
whether such testimony would be self-incriminating.
Not only have Appellants failed to identify testimony that would be
self-incriminating, they have also failed to provide authority supporting their
claim that the Fifth Amendment provides a blanket protection against
providing the basic information of their identity. The Pennsylvania Supreme
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Court has opined that an individual “does not have an expectation of privacy
in his name and address that society is willing to recognize as reasonable
and legitimate.” Commonwealth v. Duncan, 817 A.2d 455, 469 (Pa.
2003). Indeed, in the criminal context, we have ruled that defendants
cannot properly invoke the Fifth Amendment privilege to shield them from
revealing their identity. See Commonwealth v. Durr, 32 A.3d 781, 786
(Pa. Super. 2011) (holding there was no Fifth Amendment violation in
compelling the defendant to provide his name because his name could not
be used to establish guilt of a crime, nor did identity itself give rise to a
criminal charge).
Moreover, our Supreme Court has stated the following in addressing
the protections of the Fifth Amendment privilege:
“The purpose of the constitutional provision is to prohibit the
compulsory oral examination of the prisoner * * *-to prevent his
being required to incriminate himself by speech or the equivalent
of speech: Commonwealth v. Valeroso, 273 Pa. 213, 219,
220, 116 A. 828, 830.”
Prior and subsequent decisions have likewise interpreted
and limited the constitutional immunity from self-incrimination to
speech, or the equivalent of speech, as former Chief Justice
STERN so clearly said in Commonwealth v. Musto, supra. For
example, in Commonwealth v. Fletcher, 387 Pa. 602, 128
A.2d 897, the District Attorney was permitted to call the jury’s
attention to defendant’s peculiar manner of walking, even
though defendant had not taken the witness stand. In
Commonwealth v. Statti, 166 Pa.Super. 577, 73 A.2d 688, the
Court held that “certainly one lawfully arrested may not refuse to
submit to finger printing, nor to a search of his person. So also
the constitutional privilege does not allow a defendant to refuse
a witness the opportunity of seeing him and hearing his voice,
for the purpose of identification. Cf. Johnson v.
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Commonwealth, 115 Pa. 369, 395, 9 A. 78. The privilege did
not prevent the Commonwealth from requiring some of the
defendants to stand in the presence of the jury, as they were
identified by a witness in Commonwealth v. Safis et al., 122
Pa.Super. 333, 186 A. 177.”
Commonwealth v. Aljoe, 216 A.2d 50, 53 (Pa. 1966).
The United States Supreme Court has also explained that the Fifth
Amendment privilege applies only to testimony, as follows:
The Self–Incrimination Clause of the Fifth Amendment
provides that no “person ... shall be compelled in any criminal
case to be a witness against himself.” Although the text does
not delineate the ways in which a person might be made a
“witness against himself,” cf. Schmerber v. California, 384
U.S. 757, 761–762, n. 6, 86 S. Ct. 1826, 1831, n. 6, 16 L. Ed. 2d
908 (1966), we have long held that the privilege does not
protect a suspect from being compelled by the State to produce
“real or physical evidence.” Id. at 764, 86 S.Ct. at 1832.
Rather, the privilege “protects an accused only from being
compelled to testify against himself, or otherwise provide the
State with evidence of a testimonial or communicative nature.”
Id., at 761, 86 S.Ct. at 1830. “[I]n order to be testimonial, an
accused’s communication must itself, explicitly or implicitly,
relate a factual assertion or disclose information. Only then is a
person compelled to be a ‘witness’ against himself.” Doe v.
United States, 487 U.S. 201, 210, 108 S. Ct. 2341, 2347, 101
L. Ed. 2d 184 (1988).
Pennsylvania v. Muniz, 496 U.S. 582, 588-589 (1990).
This Court, in quoting the United States Supreme Court decision in
Schmerber v. California, 384 U.S. 757 (1966), has further explained:
It is clear that the protection of the privilege reaches an
accused’s communications, whatever form they might take, and
the compulsion of responses which are also communications, for
example, compliance with a subpoena to produce one’s papers.
Boyd v. United States, 116 U.S. 616. On the other hand, both
federal and state courts have usually held that it offers no
protection against compulsion to submit to fingerprinting,
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photographing, or measurements, to write or speak for
identification, to appear in court, to stand, to assume a stance,
to walk, or to make a particular gesture. The distinction which
has emerged, often expressed in different ways, is that the
privilege is a bar against compelling “communications” or
“testimony,” but that compulsion which makes a suspect or
accused the source of “real or physical evidence” does not
violate it. Id. at 763—764, 86 S. Ct. at 1832.9
Commonwealth v. Robinson, 324 A.2d 441, 447-448 (Pa. Super. 1974)
(emphasis added).
In this case, Appellants have not invoked the privilege in the context
of compelled testimony. Instead, Appellants seek to not have to appear for
their depositions. As outlined above, the privilege does not apply to
noncommunicative acts, such as having to appear in court. Appellants’
appearance at the deposition is a noncommunicative act and is thus not, in
and of itself, protected by the Fifth Amendment.
Additionally, it is important to note that it would not be Appellants’
appearance at the deposition that would give rise to a potential criminal
charge. Instead, if criminal charges were to follow, Appellants’ alleged
actions of using a computer would give rise to the criminal charge.
Moreover, at this point in the civil defamation trial, there is no threat
of a future criminal proceeding. Relevant case law provides that Appellants
have the burden to demonstrate they have “reasonable cause to apprehend”
a “real danger of prosecution” should they be compelled to appear.
Commonwealth v. Carrera, 227 A.2d 627, 629 (Pa. 1967), superseded by
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statute on other grounds, Commonwealth v. Swinehart, 664 A.2d 957
(Pa. 1995). The Supreme Court has made clear:
The witness is not exonerated from answering merely because
he declares that in so doing he would incriminate himself – his
say-so does not of itself establish the hazard of incrimination. It
is for the court to say whether his silence is justified, and to
require him to answer if “it clearly appears to the court that he is
mistaken.”
Hoffman v. U.S., 341 U.S. 479, 486 (1951). Here, Appellants have failed
to satisfy this burden.
It is questionable whether Appellants’ alleged computer activity can
provide a basis for a charge of unlawful use of a computer, as asserted by
Appellants. See 42 Pa.C.S. § 5552(b) (outlining statutes of limitations);1 18
Pa.C.S. § 7611 (Unlawful Use of A Computer and Other Computer Crimes).
The crime of unlawful use of a computer, codified at 18 Pa.C.S. § 7611,
provides that a person commits the offense if he:
(1) accesses or exceeds authorization to access, alters,
damages or destroys any computer, computer system,
computer network, computer software, computer program,
computer database, World Wide Web site or telecommunication
device or any part thereof with the intent to interrupt the normal
functioning of a person or to devise or execute any scheme or
artifice to defraud or deceive or control property or services by
means of false or fraudulent pretenses, representations or
promises;
____________________________________________
1
The crime of unlawful use of a computer is listed in Section 5552(b) as
“section 3933 (relating to unlawful use of a computer).” 42 Pa.C.S. §
5552(b). However, Section 3933 was repealed in 2002 and replaced by
Section 7611. See 2002, Dec. 16, P.L. 1953, No. 226, § 3 , effective in 60
days.
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(2) intentionally and without authorization accesses or
exceeds authorization to access, alters, interferes with
the operation of, damages or destroys any computer,
computer system, computer network, computer software,
computer program, computer database, World Wide Web site or
telecommunication device or any part thereof; or
(3) intentionally or knowingly and without authorization
gives or publishes a password, identifying code, personal
identification number or other confidential information about a
computer, computer system, computer network, computer
database, World Wide Web site or telecommunication device.
18 Pa.C.S. § 7611(a) (emphasis added).
The facts alleged in the instant complaint assert that the Does sent
two anonymous, defamatory e-mails to Nancy Veloric. There are no
allegations that the Does, without authorization, accessed a computer or
computer system or knowingly published a password or identifying
information. It is not clear that simply sending a defamatory e-mail would
constitute a violation of the statute. Significantly, Appellants provide no
analysis establishing that their appearance at the deposition might support a
charge of unlawful use of a computer as delineated in 18 Pa.C.S. § 7611.
While Appellants are not required to provide potentially incriminating
answers to the questions before asserting their Fifth Amendment privilege,
they must demonstrate “reasonable cause to apprehend danger[.]”
Hoffman, 341 U.S. at 486. This they failed to do.
Furthermore, in AmerisourceBergen Corp. v. Does, 81 A.3d 921
(Pa. Super. 2013), this Court was presented with a similar scenario in which
the appellants sought to maintain their anonymity after being sued as “John
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Does.” In that case, the appellants unlawfully used a corporate executive’s
identity to post comments on a website regarding that company’s financial
status. Id. at 924. Seeking to keep their identities secret, the appellants
invoked their First Amendment rights. The trial court, however, granted a
motion to compel disclosure of the individuals’ identities. Id. at 923. On
appeal, this Court considered whether the order compelling disclosure of the
appellants’ identities was a collateral order. Id. at 927. The panel
concluded as follows:
[W]e are constrained to find that Appellants have no protectable
interest in their identities sufficient to outweigh Appellees’ right
to identify Appellants for purposes of seeking legal redress for
Appellants’ illegal appropriation of [the executive’s] name in a
public forum. Consequently, Appellants have failed to meet the
“stringent” collateral order test by demonstrating that the right
at issue, if any, is a right “deeply rooted in public policy.”
Id. at 931-932.
Here, too, we find that Appellants have no protectable interest in their
identities sufficient to outweigh the Velorics’ right to identify Appellants for
purposes of seeking legal redress. As a result, Appellants have failed to
meet the collateral order test by demonstrating that the right at issue is a
right “deeply rooted in public policy.”
Accordingly, we are compelled to conclude that Appellants have failed
to meet the second prong of the collateral order test. As noted, the Fifth
Amendment is intended to protect against compelled self-incriminating
testimony or communications. For reasons outlined previously, Appellants
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are not seeking protection from compelled testimony but instead, are
seeking a blanket protection from providing any testimony or revealing their
identities. Thus, despite framing their claim as an invocation of their Fifth
Amendment rights against self-incrimination, the protection Appellants seek
is not afforded by the Fifth Amendment nor is it “deeply rooted in public
policy.” As a result, Appellants have failed to meet the second prong of the
collateral order test.
Thus, we cannot agree with Appellants’ assertion that the discovery
order is an appealable collateral order. Dougherty, 97 A.3d at 1261
(stating that all three prongs of Rule 313(b) must be met before an order
may be subject to a collateral appeal). As a result, we cannot reach the
merits of Appellants’ issue because this is an interlocutory appeal and we
lack jurisdiction. Id.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2015
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