Brown v. Greyhound Lines, Inc.

142 A.3d 1

2016 PA Super 108

Faithlee BROWN; and Joseph Hoang and Kenneth Rothweiler, Esq., Co–Administrators of the Estate of Son Thi Thanh Hoang, Deceased and Hiren Patel, Gustav Frederiksen, Brandon Osborn, Elora Lencoski, Barbara Yeager–Doyle, William Koomson, FNU Saifullah, Keith Pressman, Charles Reid, Michael Ketchpaw, Suraj Balakrishnan and Ahmed Aljahmi, Appellees

v.GREYHOUND LINES, INC., Sabrina Anderson, FirstGroup America, C.A.V. Enterprises, LLC, Akos Gubica and Karoly Gubica

Appeal of FirstGroup America.

Manaja Livingston, Darren Shin, Rosaura Sanchez, Hector Amado Sanchez, Rosa Maria Tapia, Semen Babadzhanov and Tatiana Liakh, Appellees

v.Greyhound Lines, Inc., Sabrina Anderson, FirstGroup America, C.A.V. Enterprises, LLC, Akos Gubica and Karoly Gubica

Appeal of FirstGroup America.

Faithlee Brown; and Joseph Hoang and Kenneth Rothweiler, Esq., Co–Administrators of the Estate of Son Thi Thanh Hoang, Deceased and Hiren Patel, Gustav Frederiksen, Brandon Osborn, Elora Lencoski, Barbara Yeager–Doyle, Wiliam Koomson, FNU Saifullah, Keith Pressman, Charles Reid, Michael Ketchpaw, Suraj Balakrishnan and Ahmed Aljahmi, Appellees

v.Greyhound Lines, Inc., Sabrina Anderson, FirstGroup America, C.A.V. Enterprises, LLC, Akos Gubica and Karoly Gubica

Appeal of Greyhound Lines, Inc. and Sabrina Anderson

Manaja Livingston, Darren Shin, Rosaura Sanchez, Hector Amado Sanchez, Rosa Maria Tapia, Semen Babadzhanov and Tatiana Liakh

v.Greyhound Lines, Inc., Sabrina Anderson, FirstGroup America, C.A.V. Enterprises, LLC, Akos Gubica and Karoly Gubica

Appeal of Greyhound Lines, Inc. and Sabrina Anderson.

Joseph Hoang and Kenneth Rothweiler, Esquire, Co–Administrators of the Estate of Son Thi Thanh Hoang, Deceased, and Faith Lee Brown, FNU Saifullah and Keith Pressman and Charles Reid and Michael Ketchpaw and Suraj Balakrishnan and Ahmed Aljahmi and Hiren Patel and Eric Kjellerstedt and Gustav Frederiksen and Barbara Yeager–Doyle and Brandon Osborn and Elora Lencoski and William Koomson and Gloria Koomson, h/w, Appellees

v.Greyhound Lines, Inc. and Sabrina Anderson and FirstGroup America and C.A.V. Enterprises, Inc., and Akos Gubica and Karoly Gubica

Appeal of Greyhound Lines, Inc. and Sabrina Anderson.

Joseph Hoang and Kenneth Rothweiler, Esquire, Co–Administrators of the Estate of Son Thi Thanh Hoang, Deceased, and Faith Lee Brown and FNU Saifullah and Keith Pressman and Charles Reid and Michael Ketchpaw and Suraj Balakrishnan and Ahmed Aljahmi and Hiren Patel and Eric Kjellerstedt and Gustav Frederiksen and Barbara Yeager–Doyle and Brandon Osborn and Elora Lencoski and William Koomson and Gloria Koomson, h/w, Appellees

v.Greyhound Lines, Inc. and Sabrina Anderson and FirstGroup America

v.C.A.V. Enterprises, Inc. and Akos Gubica and Karoly Gubica

Appeal of FirstGroup America.

Manaja Livingston, Daren Shin, Rosaura Sanchez, Hector Amado Sanchez, Rosa Maria Tapia, Semen Babadzhanov, Tatiana Liakh, Appellees

v.Greyhound Lines, Inc. and Sabrina Anderson and FirstGroup America and C.A.V. Enterprises, LLC, Akos Gubica and Karoly Gubica

Appeal of Greyhound Lines, Inc. and Sabrina Anderson.

Joseph Hoang and Kenneth Rothweiler, Esquire, Co–Administrators of the Estate of Son Thi Thanh Hoang, Deceased, and Faith Lee Brown, FNU Saifullah, Keith Pressman, Charles Reid, Michael Ketchpaw, Suraj Balakrishnan, Ahmed Aljahmi, Hiren Patel, Eric Kjellserstedt, Gustav Frederiksen, Barbara Yeager–Doyle, Brandon Osborn, Elora Lencoski, William Koomson and Gloria Koomson, h/w, Appellees

v.Greyhound Lines, Inc. and Sabrina Anderson and FirstGroup America C.A.V. Enterprises, Inc., Akos Gubica, Karoly Gubica

Appeal of Greyhound Lines, Inc. and Sabrina Anderson.

Joseph Hoang and Kenneth Rothweiler, Esquire, Co–Administrators of the Estate of Son Thi Thanh Hoang, Deceased, and Faithlee Brown, FNU Saifullah, Keith Pressman, Charles Reid, Michael Ketchpaw, Suraj Balakrishnan, Ahmed Aljahmi, Hiren Patel, Eric Kjellserstedt, Gustav Frederiksen, Barbara Yeager–Doyle, Brandon Osborn, Elora Lencoski, William Koomson and Gloria Koomson, h/w, Appellees

v.Greyhound Lines, Inc. and Sabrina Anderson and FirstGroup America C.A.V. Enterprises, Inc., Akos Gubica, Karoly Gubica

Appeal of Greyhound Lines, Inc. and Sabrina Anderson.

Nos. 1167 EDA 2015

Superior Court of Pennsylvania.

Filed May 24, 2016.

Argued May 3, 2016.

Reargument Denied July 20, 2016.

Paulyne A. Gardner, Wayne, for FirstGroup.

Louis C. Ricciardi, Plymouth Meeting, for Brown.

Paul C. Troy, Norristown, for Greyhound Lines and Anderson.

BEFORE: SHOGAN, MUNDY, and FITZGERALD,^* JJ.

OPINION BY SHOGAN, J.:

The underlying action arises from an October 9, 2013, motor vehicle accident between a Greyhound Lines, Inc. (“Greyhound”) bus driven by Sabrina Anderson (“Bus Driver”) and a tractor-trailer. Plaintiffs–Appellees were passengers on the bus and have alleged injuries as a result of the accident. The instant appeals are from four pretrial discovery orders in the underlying consolidated cases. For the reasons that follow, we affirm.

Factual and Procedural History

The complaints allege that Bus Driver was operating a Greyhound bus westbound on Interstate 80 in Union County, Pennsylvania, on October 9, 2013, traveling from New York City to Cleveland, Ohio. Complaint, 12/19/13, at 5 (“Hoang action”);¹ Complaint, 4/25/14, at 3 (“Livingston action”).² The complaints aver that FirstGroup America (“FirstGroup”) owns, operates, and/or controls Greyhound (collectively with Bus Driver, “Appellants”). Complaint, 12/19/13, at 4; Complaint, 4/25/14, at 2. The bus allegedly rear-ended a tractor-trailer lacking working headlights, taillights, hazard lights, or reflectors that was operated by additional defendant Akos Gubica and owned by additional defendants Karoly Gubica or C.A.V. Enterprises, LLC, or both. Third Party Complaint, 7/2/14, at ¶¶ 7–9. Forty-two plaintiffs (collectively “Passengers”) filed personal injury actions in Pennsylvania, New York, Ohio, and Texas against Greyhound.³ The Hoang action was filed in the Philadelphia Court of Common Pleas on December 19, 2013. The Livingston action was filed in that court on April 25, 2014. The cases were consolidated on October 1, 2014.

Greyhound removed the action to the United States District Court for the Eastern District on January 13, 2014; the district court remanded to the Philadelphia Court of Common Pleas on June 19, 2014. Passengers sought a preliminary injunction on July 1, 2014, which the trial court granted on August 20, 2014. Pursuant to the injunction, all items impounded by the state police were ordered to be released to the parties for inspection. Trial Court Opinion, 10/30/15, at 1.

On January 8, 2015, Passengers filed a “Third Set of Document Requests to Defendant FirstGroup America (Regarding claim files and investigation)” seeking the contents of claim files, correspondence, and emails discussing the bus accident that were sent to or from any individual employed by Gallagher Bassett (“Gallagher”), a third-party adjustment company which contractually handled claims and investigations for Appellants Greyhound and FirstGroup. On February 19, 2015, Passengers filed a “Fourth Set of Document Requests for Production of Documents Addressed to Defendants Greyhound Lines, Inc. and FirstGroup America.” Appellants objected on the basis that the materials are confidential under the attorney-client privilege and work-product privilege.

On March 4, 2015, the trial court entered an order granting the discovery requests, in part. The order provided, in pertinent part, “With respect to any material objected to on the basis of privilege, a privilege log shall be provided to all parties and the redacted and unredacted documents submitted to the court for in camera review within twenty days.” Order, 3/4/15, at 1. The documents, numbering into the thousands, were submitted. Trial Court Opinion, 10/30/15, at 4.

As a result of that review, the trial court entered three of the four orders on appeal on April 1, 2015, April 24, 2015, and June 1, 2015. The fourth order appealed relates to Passengers' motion seeking production of a video of a practice deposition, a/k/a a “mock deposition,” of Bus Driver that the trial court previously had ordered to be produced in the April 1, 2015 order. The videotaped mock deposition of Bus Driver had never been disclosed on any privilege log. When Appellants refused to produce the video, the trial court held oral argument on May 26, 2015, and directed, by undated order docketed on June 3, 2015, the production of the “practice” deposition. Undated Order docketed 6/3/15, at 1. Appellants appealed, and that appeal was consolidated with the other three appeals.

Specifically, Bus Driver and Greyhound filed notices of appeal on April 16, 2015, from the April 1, 2015 order, on May 21, 2015, from the April 24, 2015 order, on June 10, 2015, from the June 1, 2015 order, and on June 10, 2015, from the order docketed on June 3, 2015. FirstGroup also filed notices of appeal. The trial court ordered compliance with Pa.R.A.P.1925 relating to the appeals from the April 1, 2015, and April 24, 2015 orders, and Greyhound and Bus Driver complied on May 8, 2015, and June 17, 2015, respectively. The trial court did not order concise statements in the appeals from the June 1, 2015, and June 3, 2015 orders.

Greyhound and Bus Driver raise the following issues on appeal:

1. Are communications between counsel for a party and the party's claims administrator, which hired counsel, protected by the attorney-client privilege?

2. In the alternative are communications between counsel for a party and a claims administrator who is investigating the case on counsel's behalf, protected by the attorney-client privilege?

3. Are documents of a claims administrator which contain mental impressions, conclusions, opinions, memoranda, notes or summaries, legal research, legal theories or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics protected by the work product

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