Koropey, R. v. Kalogredis, V. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROMAN J. KOROPEY, LTD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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v. :
:
:
VASILIOS J. KALOGREDIS AND LAMB :
MCERLANE, PC :
: No. 2113 EDA 2021
:
v. :
:
:
STEPHANIE P. KALOGREDIS, :
:
Intervenor :
:
:
:
:
APPEAL OF: VASILIOS J. :
KALOGREDIS, LAMB MCERLANE, PC, :
AND STEPHANIE P. KALOGREDIS :
Appeal from the Order Entered August 31, 2021
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2019-27903
BEFORE: DUBOW, J., KING, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 21, 2022
Appellants, Stephanie P. Kalogredis and Lamb McErlane, PC (collectively
“Appellants”), appeal from the Order entered on August 31, 2021, denying
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* Retired Senior Judge assigned to the Superior Court.
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Kalogredis’ motion for protective order.1, 2 After careful review, we remand for
further proceedings consistent with this memorandum.
We derive the following factual and procedural history from the trial
court opinion and certified record. In 2000, Kalogredis signed an employment
agreement to work as an attorney for Appellee Roman J. Koropey, Ltd.
(“RJK”), a law firm. In 2008, RJK entered a practice agreement with Lamb
McErlane, another law firm.3
According to RJK, in 2017, Kalogredis violated her employment
agreement by facilitating the referral of a legal issue to Lamb McErlane rather
than RJK. As a result, in 2019, RJK terminated Kalogredis’ employment. Later
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1 Vasilios J. Kalogredis is also an appellant in the instant action. For ease of
analysis and because Vasilios Kalogredis’ interests align with that of Appellant
Lamb McErlane, we refer to these Appellants together as “Lamb McErlane.”
Also, when we refer to “Kalogredis,” we are referring solely to Stephanie
Kalogredis.
Additionally, we note that the present litigation has become particularly
contentious, with the parties exchanging unnecessary barbs in court filings.
We remind the parties of the Code of Civility and emphasize that personal
attacks are ineffective means of advocacy.
2Kalogredis styled her filing as an “emergency petition” to preclude discovery.
We have recharacterized it as a motion because it requests relief in the form
of a protective order and “any application to the court for an order made in
any civil action or proceeding” is properly made as a motion. Pa.R.C.P.
208.1(a). C.f. Pa.R.C.P. 206.1(a)(1) (explaining that “‘petition’ means [] an
application to strike and/or open a default judgment or a judgment of non
pros”).
3 The substance of the practice agreement is not relevant to the instant
appeal.
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that year, Lamb McErlane hired Kalogredis as an attorney. Lamb McErlane
subsequently terminated its practice agreement with RJK.
Between July 18, 2019, and December 4, 2020, Kalogredis exchanged
a series of emails with her private attorney, Christopher Ezold, about her
transition from RJK to Lamb McErlane. Kalogredis used her Lamb McErlane
email address to send and receive these emails.
On November 29, 2019, RJK filed the underlying lawsuit against Lamb
McErlane alleging breach of contract and contractual interference. Kalogredis
is not a party to the lawsuit.
On June 26, 2020, RJK served discovery requests on Lamb McErlane
requesting, inter alia, all communications relating to Kalogredis’ transfer of
client files from RJK to Lamb McErlane. In response, Lamb McErlane provided
RJK over 1,000 documents, including heavily redacted versions of the emails
Kalogredis exchanged with Attorney Ezold.4 On December 15, 2020, RJK filed
a motion for sanctions against Lamb McErlane for, inter alia, providing
redacted documents without a privilege log.
On July 27, 2021, the trial court held a hearing on RJK’s motion. At that
hearing, the parties reached an agreement on the outstanding discovery. As
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4 As explained infra, Kalogredis has asserted that she redacted these emails
and provided them to Lamb McErlane, for Lamb McErlane to then provide to
RJK. N.T. Hearing, 8/9/21, at 4-5. Lamb McErlane alleges that it does not
possess unredacted copies of the emails. Id. at 19. RJK asserts that Lamb
McErlane has independent access to Kalogredis’ unredacted emails through its
email server. See RJK’s Br. at 6. Possession of and access to the emails, and
the implication of Kalogredis’ assertion of privilege, are issues to be resolved
by the trial court on remand.
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a result, the court entered a stipulated order which required Lamb McErlane
to, inter alia, provide to RJK unredacted versions of Kalogredis’ emails.
On August 2, 2021, Kalogredis filed what she captioned a “Notice of
Intervention” and a separate motion for protective order requesting that the
trial court preclude discovery of her unredacted emails. Kalogredis asserted
that the emails were protected by the attorney-client privilege and work-
product doctrine.
On August 9, 2021, the trial court held a hearing on Kalogredis’ motion.
At the hearing, Kalogredis requested that the court review the subject emails
in camera and, ultimately, find them undiscoverable. RJK argued that
Kalogredis’ attempt to intervene in the instant litigation was improper and,
therefore, she lacked standing to argue before the court. Importantly, the trial
court did not conduct an in-camera review of the documents.
On August 31, 2021, the trial court summarily denied Kalogredis’
motion. In its subsequent Rule 1925(a) opinion, the court explained that it
denied Kalogredis’ motion because her notice of intervention was insufficient
to endow her with intervenor status and, therefore, she lacked standing to file
the motion. Appellants timely filed a Notice of Appeal. The trial court did not
order Appellants to file a Rule 1925(b) statement.
On appeal, Appellants assert that the trial court erred by (1) failing to
review the subject emails in camera, and (2) denying Kalogredis’ motion for
protective order. Appellants’ Br. at 4.
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The issuance of a protective order lies within the sound discretion of the
trial court. Hutchinson v. Luddy, 606 A.2d 905, 908 (Pa. Super. 1992). We
will only disturb a court’s decision to deny a protective order for an abuse of
discretion. Id.5
Initially, we agree with the trial court that Kalogredis’ notice of
intervention was insufficient to grant her intervenor status.6 We conclude,
however, that the trial court erred by dismissing Kalogredis’ motion based
solely on her failure to intervene.
Pennsylvania Rule of Civil Procedure 4012 allows a trial court to enter a
protective order to preclude discovery “[u]pon motion by a party or by the
person from whom discovery or deposition is sought, and for good cause
shown[.]” Pa.R.C.P. 4012(a) (emphasis added). Thus, by the explicit terms of
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5 We note that the underlying order requires production of putatively
privileged documents. Generally, a discovery order compelling disclosure of
potentially privileged materials is immediately appealable as collateral under
Pa.R.A.P. 313. Commonwealth v. Flor, 136 A.3d 150, 155 (Pa. 2011).
6 To intervene in a legal action, a person or entity must file a verified petition
to intervene. Pa.R.C.P. 2328(a). The filing of the petition triggers the trial
court to hold a hearing and rule on the propriety of intervention. Pa.R.C.P.
2329. Only after the trial court has issued an order granting intervenor status
does the proposed intervenor become a party to the action. See Pa.R.C.P.
2330. Crucially, a notice of intervention “accomplishes nothing more than the
provision of information; [it] requires no responsive pleading or order on the
part of another party or a court.” Lescinsky v. Township of Covington
Zoning Hearing Bd., 123 A.3d 379, 380-81 (Pa. Cmwlth. 2015) (citation
omitted).
Here, Appellant’s notice of intervention was not sufficient to trigger the court
to hold a hearing or rule on her intervention request. As a result, the court
never granted Kalogredis intervenor status.
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Rule 4012, a non-party may motion the trial court for a protective order. See
Red Vision Sys., Inc. v. Nat’l Real Estate Info. Servs., L.P., 1208 A.3d
54, 56 (Pa. Super. 2015) (reviewing appeal by “a non-party to this action”
from order “den[ying] his motion to quash subpoena and for protective
order”).
Here, the underlying discovery order requires disclosure of Kalogredis’
emails and, as a result, Kalogredis was permitted by rule to file a motion for
protective order. Kalogredis’ failure to obtain intervenor status, therefore, was
not dispositive of her motion for protective order and the trial court erred by
denying the motion on this basis.
Since the trial court determined that Kalogredis’ failure to intervene
precluded her ability to litigate her motion, the court did not conduct an in-
camera review of the subject emails. “In camera review of disputed claims of
privilege is often necessary and appropriate.” Berg v. Nationwide Mut. Ins.
Co., 44 A.3d 1164, 1179 (Pa. Super. 2012). Such review is specifically
contemplated by the Rules of Civil Procedure “to weed out protected material”
from discovery. Pa.R.C.P. 4003.3 cmt. This Court will remand for an in-camera
review where “we cannot determine on the record before us whether and to
what extent any of the privileges . . . apply here.” T.M. v. Elwyn, Inc., 950
A.2d 1050, 1063 (Pa. Super. 2008) (citing Gocial v. Independence Blue
Cross, 827 A.2d 1216, 1222 (Pa. Super. 2003)).
On this record, we cannot review whether or to what extent Kalogredis’
assertion of privilege applies. The unredacted version of the emails are, for
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obvious reasons, not included in the certified record, and we have no analysis
from the trial court on the application of the attorney-client privilege and work-
product doctrine. We, thus, remand to the trial court for it to conduct a
hearing, review the emails in camera, and determine if the attorney-client
privilege or work-product doctrine apply. Accordingly, we vacate the trial
court’s August 31, 2021 order denying Kalogredis’ motion for protective order
and remand for further proceedings consistent with this memorandum.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2022
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