Veloric v. Doe

123 A.3d 781

2015 PA Super 194

Gary VELORIC and Nancy Veloric, Appellees

v. John DOE and/or Jane DoeAppeal of John Doe.

No. 121 EDA 2015

Superior Court of Pennsylvania.

Argued July 15, 2015.

Filed Sept. 14, 2015.

Marc R. Steinberg, Landsdale, for appellant.

Bruce L. Castor, Jr., Ardmore, for appellees.

BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.

Opinion

OPINION BY SHOGAN, J.:

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 (“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.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 ).

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, ––– Pa. ––––, 109 A.3d 675 (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 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, 575 Pa. 264, 836 A.2d 42, 46–47 (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 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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