A.A. and A.M. v. Glicken, S.

2020 Pa. Super. 197, 237 A.3d 1165

• Court: Superior Court of Pennsylvania
• Decided: August 14, 2020
• Docket: 1104 MDA 2019
• Status: Published

Opinion

J-A07001-20

2020 PA Super 197

A.A. AND A.M. INDIVIDUALLY AND : IN THE SUPERIOR COURT OF AS PARENTS AND NATURAL : PENNSYLVANIA GUARDIANS ON BEHALF OF J.A., A : MINOR : : : v. : : : No. 1104 MDA 2019 STEPHAN R. GLICKEN, M.D.; LEHIGH : VALLEY PHYSICIAN GROUP- : HAZLETON; LEHIGH VALLEY : HOSPITAL-HAZLETON, AND LEHIGH : VALLEY HOSPITAL AND HEALTH : NETWORK : : Appellants :

Appeal from the Order Entered June 21, 2019 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 201701972

BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

OPINION BY OLSON, J.: FILED AUGUST 14, 2020

Appellants, Stephan R. Glicken, M.D. (individually, Dr. Glicken), Lehigh

Valley Physician Group-Hazleton (individually, LVPGH), Lehigh Valley

Hospital-Hazleton (individually, LVHH), and Lehigh Valley Hospital and Health

Network (individually, LVHHN), appeal from an order entered on June 21,

2019 in the Civil Division of the Court of Common Pleas of Luzerne County

that, among other things, denied Appellants’ motion to seal a petition to

approve a minor’s settlement agreement in a medical malpractice action. We

affirm. J-A07001-20

The relevant factual and procedural background in this matter is as

follows. A.A. and A.M. (collectively, Appellees), acting individually and as

parents and natural guardians of J.A., a minor, commenced this medical

malpractice action by filing a complaint on February 23, 2017. The complaint

alleged, among other things, that J.A. sustained injuries after Dr. Glicken

negligently performed a newborn circumcision on J.A. at LVHH. Thereafter,

on March 1, 2019, the parties reached a settlement agreement. In addition

to resolving the parties’ disputed legal claims and fixing the amount of

compensation to be paid, the agreement included a confidentiality provision

in which Appellees agreed to refrain from comment on any aspect of the

litigation, including the facts of the case as well as the existence, terms, and

conditions of the settlement.

On or around April 20, 2019, Appellees filed a petition to approve the

settlement agreement reached on behalf of the minor, J.A. See Pa.R.C.P.

2039(a) (“No action to which a minor is a party shall be compromised, settled

or discontinued except after approval by the court pursuant to a petition

presented by the guardian of the minor.”). On June 4, 2019, the trial court

heard argument on Appellees’ petition to approve the settlement. At the same

time, Appellants orally requested that the trial court enter an order sealing

the petition to approve the settlement of J.A.’s claims. The trial court, on June

6, 2019, issued an order denying Appellants’ oral request, but allowed

Appellants 10 days to file a written motion. On June 17, 2019, Appellants filed

a motion to seal the petition to approve the settlement of J.A.’s claims.

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The trial court convened a hearing to address Appellants’ motion on June

21, 2019. At the hearing, Appellants argued that their motion to seal

furthered two general interests, reduction of the chilling effect that disclosure

would have on future settlements and preservation of the parties’ interest in

privacy. Appellants did not, however, introduce witnesses or other evidence

to substantiate their claims. At the conclusion of the hearing, the trial court

denied Appellants’ motion to seal the petition to approve the minor’s

settlement agreement. The court, however, temporarily sealed the

agreement for 30 days and for the pendency of any related appeal.

Appellants filed a notice of appeal to this Court on July 3, 2019. On July

5, 2019, the trial court ordered Appellants to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellants timely

complied on July 23, 2019, complaining that the trial court abused its

discretion in denying their motion to seal the petition to approve J.A.’s

settlement agreement. The trial court filed its opinion on September 5, 2019.1

Appellants raise the following issue for our review:

Did the trial court err in denying Appellants’ uncontested motion to seal [J.A.’s] settlement agreement in the instant matter?

Appellants’ Brief at 4.

Before we address the merits of Appellants’ claim, we confront the

related issues of whether Appellants challenge an appealable order and

____________________________________________

1 Appellees have not filed a brief before this Court or otherwise participated in

this appeal.

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whether we may properly exercise appellate jurisdiction in this case. This

Court may raise jurisdictional issues sua sponte. See Zablocki v. Beining,

155 A.3d 1116, 1118 (Pa. Super. 2017) (“it is well-settled that [Superior

Court] may raise the issue of [its] jurisdiction sua sponte”), appeal denied,

172 A.3d 1121 (Pa. 2017). Since jurisdictional grounds for this appeal were

not immediately apparent,2 this Court, on September 12, 2019, directed

Appellants to show cause why this appeal was not subject to quashal as taken

from an unappealable interlocutory order. See Per Curiam Order, 9/12/19.

Appellants responded to our show cause order on September 20, 2019, and

we discharged our show cause order on September 25, 2019. See Per Curiam

Order, 9/25/19. Our order of September 25, 2019 referred the jurisdictional

issues to the merits panel for review.

Appellants’ docketing statement declared that Appellants appealed from

a final order as provided in Pa.R.A.P. 341. In their response to our show cause

order, however, Appellants argued that jurisdiction was proper under the

collateral order doctrine, as set forth in Pa.R.A.P. 313. See Appellants’

Response to Rule to Show Cause, 9/20/19, at 3. Specifically, Appellants

argued that their challenge to the trial court’s June 21, 2019 order was

separable from the underlying action because their claims addressed the

2 Appellants did not appeal from a judgment but instead challenged an order

denying their motion to seal a petition to approve a settlement agreement reached on behalf of a minor.

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propriety of sealing a petition to approve a settlement entered on behalf of a

minor and, as such, could be resolved without considering the merits of the

malpractice litigation. Appellants next asserted that the confidentiality of a

settlement agreement reached on behalf of a minor implicated deeply rooted

public policy concerns which extend beyond the current appeal. Here,

Appellants pointed out that the order denying their motion to seal constituted

an abuse of discretion because it was contrary to the agreement of all litigants

and because public disclosure of the terms of the settlement agreement

contravened public policies aimed at protecting the interests of minor

plaintiffs. Lastly, Appellants argued that their claims would be irreparably lost

if appellate review was not immediately undertaken since the case would be

discontinued in view of the resolution of the parties’ dispute.

Pennsylvania law establishes:

[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).

Pace v. Thomas Jefferson University Hosp., 717 A.2d 539, 540 (Pa. Super. 1998)[.]

A collateral order is defined in Rule 313 as follows:

Rule 313. Collateral Orders

***

(b) Definition. 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

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question presented is such that review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313(b). Our Supreme Court 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, 47 (Pa. 2003).]

Stahl v. Redcay, 897 A.2d 478, 485 (Pa. Super. 2006), appeal denied, 918

A.2d 747 (Pa. 2007).

Consistent with the definition that appears in our appellate rules, our

Supreme Court has identified three elements that define a collateral

order - separability, importance, and irreparable loss if review is postponed.

See Ben v. Schwartz, 729 A.2d 547, 550 (Pa. 1999). An issue is separable

if it can be examined without analysis of the claims presented in the underlying

litigation. See id. at 552. To determine whether an issue is sufficiently

important to support application of the collateral order doctrine, “[a court

should] weigh the interests implicated in the case against the costs of

piecemeal litigation.” Id. “[I]t is not sufficient that the issue be important to

the particular parties. Rather it must involve rights deeply rooted in public

policy going beyond the particular litigation at hand.” Id., quoting Geniviva

v. Frisk, 725 A.2d 1209, 1213-1214 (Pa. 1999). “[A]n issue is important if

the interests that would potentially go unprotected without immediate

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appellate review [] are significant relative to the efficiency interests sought to

be advanced by adherence to the final judgment rule.” Finally, irreparable

loss results from postponement if no effective means of review exist after the

entry of final judgment. See Schwartz, 729 A.2d at 552.

After careful consideration, we conclude that appellate review is

appropriate under the collateral order doctrine. Appellants’ challenge to the

trial court’s June 21, 2019 order requires that we balance the parties’ interest

in confidentiality against the public’s right of access to judicial records. As

such, the present appeal is entirely separable from the merits of the

underlying medical malpractice action. In addition, although we have not

located a prior case discussing the public’s right to examine judicial records

pertaining to a minor plaintiff, we note that the nature, scope, and extent of

the public’s right of access to judicial records, in general, has long been

recognized as a matter deeply rooted in public policies that extend beyond the

present appeal. See R.W. v. Hampe, 626 A.2d 1218, 1220 (Pa. Super.

2006) (explaining importance of public’s access to civil trials and observing

that community’s common law right of access to judicial proceedings and

inspection of judicial records is beyond dispute). Bearing in mind that the

parties have already resolved their dispute and it is likely that this case will

be discontinued on remand, immediate appellate review of the interests at

stake assumes even greater importance and urgency in view of the diminished

concern for judicial efficiency and the reduced likelihood of piecemeal

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litigation. Lastly, and for related reasons, we agree with Appellants that their

claims will be irreparably lost if this appeal is denied since it is improbable that

an appealable order will furnish Appellants an opportunity to raise their claims

in the future. Because Appellants’ challenge to the trial court’s June 21, 2019

order meets the prerequisites for the collateral order doctrine, we shall

proceed to the merits of Appellants’ claims. See id. (order partially sealing

record in medical malpractice case appealable as a collateral order as it is

separable from main cause of action, implicates issues too important to be

denied review, and poses risk of irrevocable harm if left to stand until final

disposition).

We turn now to the merits of Appellants’ claim that the trial court

improperly denied their motion to seal the petition for approval of the

settlement agreement. A trial court's decision to grant or deny closure of the

record will be reversed by this Court only upon a determination that the trial

court abused its discretion. Id.

“In order to justify closure or sealing the record a party must overcome

the common law presumption of openness.” Id. Fundamental to democratic

government, public access to civil trials enhances the quality of justice, affords

a broader understanding of the operation of the courts, and promotes

confidence in and respect for our judicial system. See id. at 1220-1221. To

rebut the presumption of openness, and to obtain closure of judicial

proceedings and records, a party must demonstrate “good cause.” See

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Goodrich Amram 2d § 223(a):7. Good cause exists where closure is

“necessary in order to prevent a clearly defined and serious injury to the party

seeking” it. Id.

Appellants argue that the trial court abused its discretion in denying

their motion because they established good cause to believe that definite and

serious injuries would result from the court’s refusal to seal the petition to

approve J.A.’s settlement. In their brief, Appellants maintain that disclosure

of the terms of the parties’ settlement agreement could adversely affect J.A.

and chill future settlement of malpractice litigation. See Appellants’ Brief at

9. Appellants also complain that the trial court wrongly disregarded the

parties’ agreement in refusing to seal the petition for approval. Id. According

to Appellants, the trial court’s ruling will dissuade cooperation between future

litigants and frustrate the settlement of personal injury actions.

After careful review, we are unable to conclude that the trial court erred

or abused its discretion. As a preliminary matter, the trial court correctly

concluded that Appellants did not meet their burden of showing good cause

for sealing the record in this case. Although Appellants broadly alleged that

the challenged order would chill settlement in future malpractice actions, they

offered no evidence to substantiate this claim. Moreover, the trial court

correctly observed that the chilling effect on settlements is insufficient,

standing alone, to overcome the compelling public interest in open records.

See Trial Court Opinion, 9/5/19, at 5. Additionally, Appellants did not show

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that public disclosure of the petition to approve would result in particularly

serious embarrassment. In fact, Appellants have not rebutted the trial court’s

observation that disclosure of the petition to approve would not harm any

litigant’s interest in privacy since many documents already in the public sphere

reveal the salient facts in this case. See id. at 6. Lastly, Appellants have not

shown that the trial court improperly disregarded the parties’ agreement

regarding nondisclosure. Instead, the record and the trial court’s opinion

confirm that the court denied Appellants’ motion to seal because good cause

to overcome the presumption favoring public access did not exist.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/14/2020

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