Dougherty v. Philadelphia Newspapers, LLC

85 A.3d 1082, 2014 Pa. Super. 24, 2014 WL 545455, 2014 Pa. Super. LEXIS 36
CourtSuperior Court of Pennsylvania
DecidedFebruary 11, 2014
StatusPublished
Cited by22 cases

This text of 85 A.3d 1082 (Dougherty v. Philadelphia Newspapers, LLC) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dougherty v. Philadelphia Newspapers, LLC, 85 A.3d 1082, 2014 Pa. Super. 24, 2014 WL 545455, 2014 Pa. Super. LEXIS 36 (Pa. Ct. App. 2014).

Opinions

OPINION BY

MUSMANNO, J.:

John J. Dougherty (“Dougherty”) appeals from the Order denying his Motion to Disqualify the law firm of Pepper Hamilton, LLP (“Pepper”) and its attorneys from serving as counsel to any party, witness or participant in Dougherty’s defamation action against Philadelphia Newspapers, LLC, Harold Jackson, Paul Davis, David Boyer, Russell Cooke, Melanie Bur-ney, Tony Auth and Monica Yant Kinney [1084]*1084(collectively, “Defendants”). Defendants have filed an Application to Quash the Appeal. We deny the Application to Quash, reverse the Order of the trial court and remand for the entry of an order barring Pepper and its attorneys from representing any party, witness or participant in the underlying defamation proceedings.

The trial court aptly summarized the history underlying the instant appeal as follows:

[Dougherty] filed a Praecipe to Issue writ of Summons against [Defendants] on March 30, 2009. He filed a Complaint on March 24, 2011. The Complaint stemmed from [Dougherty’s] candidacy for the Pennsylvania Senate, First Senatorial District in 2008. The Complaint alleges [that] “[Defendants engaged in [a] continuous and systematic campaign to harm [Dougherty’s] reputation by publishing a series of articles and editorials disparaging [Dougherty].”
The matter before [the trial court] is [Dougherty’s] Motion to Disqualify Counsel, 10/23/12. [Dougherty] requested the disqualification of [Pepper] as counsel for Defendants or any party, witness or other participant because of its alleged conflict having represented [Dougherty] in a substantially related matter. [Dougherty previously had] retained [Pepper] “regarding an open federal investigation related to a grand jury subpoena [that Dougherty] had received from the U.S. Attorney’s Office.” [Pepper] represented [Dougherty] and sent work invoices through February 2007. [Dougherty] argues [that Pepper] was privy to confidential communications, advised [Dougherty] concerning the grand jury subpoena and was present during a search of [Dougherty’s] home. [Dougherty] argues [that] a conflict of interest exists because [Pepper] intends to pursue numerous discovery requests, including U.S. Attorney files from the federal investigation[,] while defending this defamation claim.

Trial Court Opinion, 4/18/13, at 1-2 (citations omitted).

The trial court denied Dougherty’s Motion to disqualify Pepper, after which Dougherty filed a Motion for reconsideration. The trial court denied reconsideration, as well as Dougherty’s request to certify the trial court’s Order for immediate appeal. Dougherty subsequently filed a Notice of Appeal and an Application to Stay the trial court proceedings pending the outcome of the instant appeal.1 Defendants have filed an Application to Quash Dougherty’s appeal as interlocutory. We first address Defendants’ Application to Quash the Appeal.

Defendants argue that the denial of a motion to disqualify counsel is interlocutory and not appealable, citing, inter alia, Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), Middleberg v. Middleberg, 427 Pa. 114, 233 A.2d 889 (1967), Seifert v. Dumatic Indus., 413 Pa. 395, 197 A.2d 454 (1964), and Pittsburgh & New England Trucking Co. v. Reserve Ins. Co., 277 Pa.Super. 215, 419 A.2d 738 (1980), in support. Defendants further argue that, because Pepper has imposed an ethical screen separating its present counsel from counsel who previously had represented Dougherty, there is no risk of the improper disclosure of materials. Application to Quash, ¶ 32.

To be immediately appealable, a trial court order must be either a final order under Pennsylvania Rule of Appel[1085]*1085late Procedure 341, or a collateral order under Appellate Rule 313. Vaccone v. Syken, 587 Pa. 380, 899 A.2d 1103, 1106 (2006). There is no claim here that an order denying the disqualification of counsel is a final order. Therefore, we must determine whether the Order at issue is appealable as a collateral order.

A collateral order is defined as
“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 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). Our [Pennsylvania Supreme] Court has delineated three requirements that must be satisfied in order for the [collateral order] doctrine to apply. The order must be “separable from and collateral to the main cause of action;” it must involve a right that “is too important to be denied review;” and, “if review is postponed until final judgment, the claim will be irreparably lost.” Vaccone [, 899 A.2d at 1106]. The doctrine is to be narrowly interpreted^] as it is an exception to the rule of finality. Id.; see also Rae v. Pennsylvania Funeral Directors Association, 602 Pa. 65, 977 A.2d 1121, 1126 (Pa.2009).

In re Reglan Litig., 72 A.3d 696, 699 (Pa.Super.2013).

Although the Vaccone court did not address the appealability of an order denying disqualification of counsel, its reasoning is instructive. In Vaccone, the party seeking disqualification averred that opposing counsel would be called as a witness in the matter. Vaccone, 899 A.2d at 1107. Under these circumstances, the Supreme Court concluded that the disqualification order would be inextricable from the merits of the case “because it would be impossible to determine the impact that the attorney’s testimony would have on the outcome of the case.” Id. The Supreme Court further recognized that the appellants would not irreparably lose their right of review of the disqualification order should the appeal be delayed until the conclusion of the trial. Id. Any error, the Vaccone Court concluded, could be corrected post-trial with the award of a new trial and the attorney’s disqualification during that new trial. Id.

Based upon the above analysis, the Vac-cone Court, adopting the rationale of the United States Supreme Court’s decision in Richardson-Merrell, Inc. v. Roller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), held that an order disqualifying counsel does not satisfy the collateral order exception. Vaccone, 899 A.2d at 1107. The Vaccone Court, however, did not address whether an order denying the disqualification of counsel is appealable as a collateral order. In fact, in Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117 (Pa.Super.2007), this Court concluded that an appellant’s colorable claim of attorney-client privilege and attorney work-product privilege can establish the propriety of immediate appellate review. Id. at 1124.

Cognizant of our Supreme Court’s analysis in

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Bluebook (online)
85 A.3d 1082, 2014 Pa. Super. 24, 2014 WL 545455, 2014 Pa. Super. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dougherty-v-philadelphia-newspapers-llc-pasuperct-2014.