J-A33040-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN F. BROWN, JR., ESQUIRE IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MARK S. HALPERN, ESQUIRE, HALPERN & LEVY, P.C., AND LYNNE BOGHOSSIAN
Appellants No. 1439 EDA 2014
Appeal from the Order Entered April 24, 2014 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 01428 June Term, 2013
BEFORE: GANTMAN, P.J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 24, 2015
Mark S. Halpern, Esquire, Halpern & Levy, P.C., and Lynne Boghossian
(collectively, “Appellants”) appeal from the order granting John F. Brown,
Jr., Esquire’s motion to compel discovery responses, entered by the
Honorable Mark Bernstein in the Court of Common Pleas of Philadelphia
County. Upon careful review, we affirm.
The relevant history of the instant matter is as follows:
In 2009, defendants Mark Halpern and Halpern & Levy, P.C., instituted a lawsuit against plaintiff and others on behalf of their client, defendant Boghossian, in Montgomery County [(the “Prior Action”)]. All claims against plaintiff were dismissed with prejudice on January 31, 2014. Defendants did not appeal this dismissal and proceeded against the remaining defendant, the ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A33040-14
Hilda Kilijian Irrevocable Trust (“HKIT”). On October 13, 2013, Judge [Lois E.] Murphy granted HKIT’s motion for summary judgment. Defendants appealed the grant of summary judgment as to defendant HKIT to the Superior Court of Pennsylvania.
Six months after he was dismissed from the Montgomery County lawsuit, John Brown Jr., Esq., initiated this action against defendants alleging [civil conspiracy and wrongful use of civil proceedings stemming from the Prior Action]. In her answer and new matter to plaintiff’s complaint, defendant Boghossian stated that the “claims of the plaintiff are barred because the Defendant relied in good faith upon the advice of counsel.” Defendants Mark Halpern and Halpern & Levy, P.C., stated in their answer and new matter that “the claims of the plaintiff are barred because the defendants relied in good faith upon the facts given from the plaintiff in the underlying litigation.”
...
On October 28, 2013, plaintiff served plaintiff’s discovery requests on defendant Boghossian. On November 26, 2013, defendant Boghossian served plaintiff with her objections to plaintiff’s requests, which assert that the requests call for information that is protected under attorney client privilege or the work product doctrine. On November 25, 2013, plaintiff served additional discovery requests on all defendants. Defendants have not yet responded. A hearing was held before this court on March 4, 2014. On April 24, 2014, this court entered an order granting plaintiff’s motion to compel responses to plaintiff’s October 28, 2013, and November 25, 2013 discovery requests. Defendants timely appeal.
Trial Court Opinion, 7/16/14, at 1-2.
On October 28, 2013, Brown filed discovery requests directed at
uncovering the good faith basis relied upon by both Attorney Halpern and
Boghossian. In response, Boghossian and Attorney Halpern filed a motion
for summary judgment, motion for stay, and a motion for protective order,
arguing that the discovery sought privileged information and attorney work
-2- J-A33040-14
product. On February 10, 2014, Judge Bernstein denied the motion for
summary judgment.
On February 19, 2014, Brown filed motions to compel with respect to
his discovery requests, as Boghossian and Attorney Halpern had not yet
responded. Those motions went uncontested.
On March 3, 2014, the trial court heard oral arguments on the
Appellants’ motions for stay and for protective order; the court denied the
motion for stay at that time. On April 24, 2014, Judge Bernstein granted
Brown’s motions to compel discovery. Boghossian and Attorney Halpern
appealed that order, raising the following issue, which we have restated for
purposes of clarity:
Did the trial court commit an error of law when it held that Appellants waived the attorney-client privilege and work product protections and compelled production of discovery where the Prior Action has not terminated and the actions of the Attorney Brown must still be determined by the fact finder?
Before we review the merits of this appeal, we must address Brown’s
motion to quash, in which he claims that this appeal is interlocutory because
it concerns a discovery order. Appellants contend that the order is
appealable as a collateral order pursuant to Pa.R.A.P. 313.
Generally, only final orders, which dispose of all claims and of all
parties, are appealable as of right. See Pa.R.A.P. 341. There are, however,
exceptions. “The collateral order doctrine allows for immediate appeal of an
order which: (1) is separable from and collateral to the main cause of
action; (2) concerns a right too important to be denied review; and (3)
-3- J-A33040-14
presents a claim that will be irreparably lost if review is postponed until final
judgment in the case.” Vaccone v. Syken, 899 A.2d 1103, 1106 (Pa.
2006). This Court has previously evaluated that standard in the context of a
discovery order, finding that where such an appeal raises “a colorable claim
of attorney-client privilege,” appellate review under the collateral order
doctrine is appropriate. Gocial v. Independence Blue Cross, 827 A.2d
1216, 1220 (Pa. Super. 2003); Carbis Walker, LLP v. Hill, Barth, & King,
LLC, 930 A.2d 573, 577 (Pa. Super. 2007).
Here, the order on appeal is separable from the main cause of action,
raises a colorable issue as to attorney-client privilege, and presents a claim
that will be irreparably lost if review was postponed until final judgment.
Accordingly, the order meets the requisites of the collateral order doctrine
and may be reviewed. See Law Offices of Douglas T. Harris, Esquire v.
Philadelphia Waterfront Partners, LP, 957 A.2d 1223, 1229 (Pa. Super.
2008) (appeals related to discovery of potentially privileged information are
typically collateral in nature).
We now turn to Appellants’ substantive claim. Appellants assert that,
while their affirmative defenses each place privileged communications and
work product at issue, those protections should not be waived because the
Prior Action is still ongoing and, therefore, Brown’s claim of wrongful use of
civil proceedings is not ripe. This argument is misplaced and outside the
scope of this appeal.
-4- J-A33040-14
In a preliminary objection in the form of a demurrer to Brown’s
complaint, Appellants asserted that Brown’s Dragonetti action was not
properly before the court because the prior action had not terminated in his
favor and, in fact, was still ongoing, with “the factual record as it applies to
the conduct of [Brown]” still actively in litigation. Preliminary Objections of
Lynne Boghossian, 8/30/13, at ¶ 52. The trial court denied Appellants’
preliminary objections and, in doing so, concluded that Brown had set forth
a cognizable claim for wrongful use of civil proceedings. Accordingly, any
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J-A33040-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN F. BROWN, JR., ESQUIRE IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MARK S. HALPERN, ESQUIRE, HALPERN & LEVY, P.C., AND LYNNE BOGHOSSIAN
Appellants No. 1439 EDA 2014
Appeal from the Order Entered April 24, 2014 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 01428 June Term, 2013
BEFORE: GANTMAN, P.J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 24, 2015
Mark S. Halpern, Esquire, Halpern & Levy, P.C., and Lynne Boghossian
(collectively, “Appellants”) appeal from the order granting John F. Brown,
Jr., Esquire’s motion to compel discovery responses, entered by the
Honorable Mark Bernstein in the Court of Common Pleas of Philadelphia
County. Upon careful review, we affirm.
The relevant history of the instant matter is as follows:
In 2009, defendants Mark Halpern and Halpern & Levy, P.C., instituted a lawsuit against plaintiff and others on behalf of their client, defendant Boghossian, in Montgomery County [(the “Prior Action”)]. All claims against plaintiff were dismissed with prejudice on January 31, 2014. Defendants did not appeal this dismissal and proceeded against the remaining defendant, the ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A33040-14
Hilda Kilijian Irrevocable Trust (“HKIT”). On October 13, 2013, Judge [Lois E.] Murphy granted HKIT’s motion for summary judgment. Defendants appealed the grant of summary judgment as to defendant HKIT to the Superior Court of Pennsylvania.
Six months after he was dismissed from the Montgomery County lawsuit, John Brown Jr., Esq., initiated this action against defendants alleging [civil conspiracy and wrongful use of civil proceedings stemming from the Prior Action]. In her answer and new matter to plaintiff’s complaint, defendant Boghossian stated that the “claims of the plaintiff are barred because the Defendant relied in good faith upon the advice of counsel.” Defendants Mark Halpern and Halpern & Levy, P.C., stated in their answer and new matter that “the claims of the plaintiff are barred because the defendants relied in good faith upon the facts given from the plaintiff in the underlying litigation.”
...
On October 28, 2013, plaintiff served plaintiff’s discovery requests on defendant Boghossian. On November 26, 2013, defendant Boghossian served plaintiff with her objections to plaintiff’s requests, which assert that the requests call for information that is protected under attorney client privilege or the work product doctrine. On November 25, 2013, plaintiff served additional discovery requests on all defendants. Defendants have not yet responded. A hearing was held before this court on March 4, 2014. On April 24, 2014, this court entered an order granting plaintiff’s motion to compel responses to plaintiff’s October 28, 2013, and November 25, 2013 discovery requests. Defendants timely appeal.
Trial Court Opinion, 7/16/14, at 1-2.
On October 28, 2013, Brown filed discovery requests directed at
uncovering the good faith basis relied upon by both Attorney Halpern and
Boghossian. In response, Boghossian and Attorney Halpern filed a motion
for summary judgment, motion for stay, and a motion for protective order,
arguing that the discovery sought privileged information and attorney work
-2- J-A33040-14
product. On February 10, 2014, Judge Bernstein denied the motion for
summary judgment.
On February 19, 2014, Brown filed motions to compel with respect to
his discovery requests, as Boghossian and Attorney Halpern had not yet
responded. Those motions went uncontested.
On March 3, 2014, the trial court heard oral arguments on the
Appellants’ motions for stay and for protective order; the court denied the
motion for stay at that time. On April 24, 2014, Judge Bernstein granted
Brown’s motions to compel discovery. Boghossian and Attorney Halpern
appealed that order, raising the following issue, which we have restated for
purposes of clarity:
Did the trial court commit an error of law when it held that Appellants waived the attorney-client privilege and work product protections and compelled production of discovery where the Prior Action has not terminated and the actions of the Attorney Brown must still be determined by the fact finder?
Before we review the merits of this appeal, we must address Brown’s
motion to quash, in which he claims that this appeal is interlocutory because
it concerns a discovery order. Appellants contend that the order is
appealable as a collateral order pursuant to Pa.R.A.P. 313.
Generally, only final orders, which dispose of all claims and of all
parties, are appealable as of right. See Pa.R.A.P. 341. There are, however,
exceptions. “The collateral order doctrine allows for immediate appeal of an
order which: (1) is separable from and collateral to the main cause of
action; (2) concerns a right too important to be denied review; and (3)
-3- J-A33040-14
presents a claim that will be irreparably lost if review is postponed until final
judgment in the case.” Vaccone v. Syken, 899 A.2d 1103, 1106 (Pa.
2006). This Court has previously evaluated that standard in the context of a
discovery order, finding that where such an appeal raises “a colorable claim
of attorney-client privilege,” appellate review under the collateral order
doctrine is appropriate. Gocial v. Independence Blue Cross, 827 A.2d
1216, 1220 (Pa. Super. 2003); Carbis Walker, LLP v. Hill, Barth, & King,
LLC, 930 A.2d 573, 577 (Pa. Super. 2007).
Here, the order on appeal is separable from the main cause of action,
raises a colorable issue as to attorney-client privilege, and presents a claim
that will be irreparably lost if review was postponed until final judgment.
Accordingly, the order meets the requisites of the collateral order doctrine
and may be reviewed. See Law Offices of Douglas T. Harris, Esquire v.
Philadelphia Waterfront Partners, LP, 957 A.2d 1223, 1229 (Pa. Super.
2008) (appeals related to discovery of potentially privileged information are
typically collateral in nature).
We now turn to Appellants’ substantive claim. Appellants assert that,
while their affirmative defenses each place privileged communications and
work product at issue, those protections should not be waived because the
Prior Action is still ongoing and, therefore, Brown’s claim of wrongful use of
civil proceedings is not ripe. This argument is misplaced and outside the
scope of this appeal.
-4- J-A33040-14
In a preliminary objection in the form of a demurrer to Brown’s
complaint, Appellants asserted that Brown’s Dragonetti action was not
properly before the court because the prior action had not terminated in his
favor and, in fact, was still ongoing, with “the factual record as it applies to
the conduct of [Brown]” still actively in litigation. Preliminary Objections of
Lynne Boghossian, 8/30/13, at ¶ 52. The trial court denied Appellants’
preliminary objections and, in doing so, concluded that Brown had set forth
a cognizable claim for wrongful use of civil proceedings. Accordingly, any
claim regarding the appropriateness of the Dragonetti action is, for now,
the law of the case, to be subject to reversal only on appeal once the
litigation is concluded. Thus, any claim based on the prematurity of the
Dragonetti action is not properly before this Court, as the order currently
on review solely pertains to discovery.
We generally review the grant or denial of discovery requests for an
abuse of discretion. Commonwealth v. Fleming, 794 A.2d 385, 387 (Pa.
Super. 2002). An abuse of discretion is more than just an error in judgment
and, on appeal, the trial court will not be found to have abused its discretion
unless the record discloses that the judgment exercised was manifestly
unreasonable or the result of partiality, prejudice, bias, or ill-will. Id.
Because challenges to discovery orders do not raise factual questions but,
rather, legal questions, our scope of review is plenary. Merithew v.
Valentukonis, 869 A.2d 1040, 1043 (Pa. Super. 2005).
-5- J-A33040-14
Pennsylvania Rule of Civil Procedure 4003.3 protects “disclosure of the
mental impressions of a party’s attorney or his or her conclusions, opinions,
memoranda, notes or summaries, legal research or legal theories,” from the
reach of normal discovery. Pa.R.C.P. 4003.3. However, there are
exceptions to that protection, namely, when the legal opinion of an attorney
becomes a relevant issue, such as in an action for malicious prosecution or
abuse of process, where a party’s defense is predicated on a claim of good
faith reliance on the opinion of counsel. Id., comment. Appellants do not
dispute the existence of such an exception. Instead, they argue that,
although Brown was personally dismissed from the Prior Action, “the factual
record as it applies to the conduct of Brown is still active and probative in
that litigation.” Brief of Appellant, at 22. Accordingly, they contend that
they will be prejudiced in the ongoing Prior Action by the disclosure of
privileged information in the Dragonetti action. We are not persuaded.
Here, Appellants themselves placed into issue their attorney-client
communications by asserting good faith reliance as a defense to Brown’s
Dragonetti action. Having done so, they cannot now deny their adversary
access to the information forming the basis of that defense. See Pa.R.C.P.
4003.3, comment (setting forth exception to discovery protection for
attorney-client privileged information where party’s defense is based on
claim of good faith reliance thereon).
Moreover, it is not at all clear that the Appellants’ ability to prosecute
the Prior Action would be hampered by our ruling in this matter. In the
-6- J-A33040-14
event that Appellants prevail on appeal and the Prior Action is remanded for
trial, Appellants may file for a protective order or request such other relief as
they may deem appropriate in order to prevent the admission of privileged
information obtained solely for purposes of the Dragonetti action.
Order affirmed; motion to quash denied.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/24/2015
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