Haney, S. v. Range Resources

• Court: Superior Court of Pennsylvania
• Decided: January 29, 2016
• Docket: 257 WDA 2015
• Status: Unpublished

Opinion

J-A35021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STACEY HANEY, INDIVIDUALLY AND AS IN THE SUPERIOR COURT OF A PARENT AND NATURAL GUARDIAN OF PENNSYLVANIA HARLEY HANEY, A MINOR, AND PAIGE HANEY, A MINOR AND BETH VOYLES AND JOHN VOYLES, HUSBAND AND WIFE, INDIVIDUALLY, ASHLEY VOYLES, INDIVIDUALLY, LOREN KISKADDEN, INDIVIDUALLY, GRACE KISKADDEN, INDIVIDUALLY,

v.

RANGE RESOURCES-APPALACHIA, LLC, NEW DOMINION CONSTRUCTION, INC., TERRAFIX ENVIRONMENTAL TECHNOLOGY, INC., SKAPS INDUSTRIES, INC., ENGINEERED SYNTHETIC PRODUCTS, INC., RED OAK WATER TRANSFER NE., LLC, MICROBAC LABORATORIES, INC., MULTI-CHEM GROUP, LLC, UNIVERSAL WELL SERVICES, INC., HALLIBURTON ENERGY SERVICES, INC., SAXON DRILLING, L.P., HIGHLAND ENVIRONMENTAL, LLC, EAP INDUSTRIES, INC., AND TEST AMERICA, INC.,

STACEY HANEY, INDIVIDUALLY AND AS A PARENT AND NATURAL GUARDIAN OF HARLEY HANEY, A MINOR, AND PAIGE HANEY, A MINOR AND BETH VOYLES AND JOHN VOYLES, HUSBAND AND WIFE, INDIVIDUALLY, ASHLEY VOYLES, INDIVIDUALLY, LOREN KISKADDEN, INDIVIDUALLY, GRACE KISKADDEN, INDIVIDUALLY,

SOLMAX INTERNATIONAL, INC., J-A35021-15

APPEAL OF: RANGE RESOURCES- APPALACHIA, LLC,

Appellant No. 257 WDA 2015

Appeal from the Order Entered February 5, 2015 In the Court of Common Pleas of Washington County Civil Division at No(s): Case No. 2012-3534

BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 29, 2016

Range Resources-Appalachia, LLC (“Range”) appeals from an order

quashing its privilege-based objection to service of a subpoena on URS

Corporation (“URS”) by Appellees, current and former residents of Amwell

Township, Washington County, Pennsylvania (“Residents”). We affirm.

Range is a natural gas drilling company. URS is an engineering and

design firm retained by Range. Residents live or lived within approximately

800 to 3500 feet of Range’s Yeager drilling site (“the Yeager Site”).

Residents filed the underlying action on May 25, 2012, for injuries and

property damage caused by environmental contamination and pollution

resulting from Range’s 2010-2011 drilling operations at the Yeager Site.

In support of its lawsuit, Residents sent Range a request for

production of documents on April 23, 2013, asking for, inter alia, “any and

all air testing Range had performed at any and all of its natural gas sites.”

Motion to Quash Objection, 12/30/14, at Exhibit A ¶¶ 12, 13. Range

responded on June 14, 2013, with an objection to the discovery request and

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a statement that “it has no air monitoring tests, studies, and air

disbursement modeling results regarding the Yeager Drill Site.” Id. at ¶ 12

RESPONSE.

Upon learning that Range had, in fact, retained URS at some point

after 2010 to conduct air testing at several Range sites, other than the

Yeager site, Residents filed a notice of intent to serve URS with a subpoena

on August 29, 2014. Motion to Quash Objection, 12/30/14, at Exhibit C

(Deposition testimony of Pete Miller) and Exhibit E (Notice of Intent). The

scope of the subpoena covered:

[a]ny and all documents and things related to inspections, investigations, modeling (including air and water), monitoring (including air and water), evaluations, testing, analysis (including laboratory), studies, consultations or work activities related to natural gas drill sites, well sites and impoundments operated by Range Resources – Appalachia, LLC in Pennsylvania, including but not limited to the “Yeager,” “Day,” “Carter” and “Lowery” sites from July 2010 through the present.

Id. at Exhibit E. Range objected to the proposed subpoena, alleging that its

scope included privileged documents possessed by URS. Specifically, Range

asserted that it retained URS “as an expert consultant” and, therefore, the

requested discovery was protected under Pa.R.E. 4003.5(a)(3). Objection to

Notice of Intent, 9/18/14, at ¶¶ 2–6. Range also objected on grounds of

relevance, attorney work product, and attorney-client privilege. Id. at 7.

However, Range agreed to request documents from URS and “produce those

documents that are not privileged and are otherwise discoverable.” Id. at ¶

9.

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Residents filed a motion to quash Range’s objection and a motion to

compel discovery responses. Motion to Quash Objections and Motion to

Compel Discovery Responses, 12/30/14. The trial judge (now retired Judge

Debbie O’Dell-Seneca) granted Residents’ motions on December 30, 2014.

Order, 12/30/14. Residents served URS with a subpoena on January 2,

2015. Response in Opposition to Motion for Reconsideration, 1/13/15, at 9.

Range filed a motion for reconsideration, again asserting that it

retained URS “as an expert consultant in anticipation of litigation and in

preparation for trial,” and, therefore, the requested discovery was protected

under Pa.R.E. 4003.5(a)(3). Motion for Reconsideration, 1/8/15, at ¶¶ 1, 2.

In support of its motion for reconsideration, Range produced a November 8,

2011 engagement letter from its counsel to URS regarding “McAdams Road

Area Complaints, Amwell Township, Washington County, Pennsylvania.”

Supplemental Exhibit, 1/12/15, at Exhibit A (Engagement Letter, 11/8/11).1

Residents filed a response. Response in Opposition to Motion for

Reconsideration, 1/13/15, at 1.

In light of Judge O’Dell-Seneca’s retirement at the end of 2014,

President Judge Katherine B. Emery granted a stay of the December 30,

2014 discovery order and reassigned the case to Judge William R. Nalitz.

____________________________________________

1 We note that the last four lines of the first full paragraph of the letter are redacted. Supplemental Exhibit, 1/12/15, at Exhibit A (Engagement Letter, 11/8/11).

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Order of Court, 1/13/15. Range then filed a motion to amend the

January 13, 2015 order, requesting that the trial court grant reconsideration

of the December 30, 2014. Motion to Amend, 1/23/15. On January 26,

2015, Judge Emery granted Range’s motion to amend, vacated the January

13, 2015 order, granted Range’s motion for reconsideration, and reaffirmed

her assignment of the case to Judge Nalitz. Order, 1/26/15. Residents filed

an emergency motion for reconsideration and clarification of the January 26,

2015 order, which Judge Emery denied. Emergency Motion, 1/29/15; Order,

1/29/15.

After a hearing and briefing, Judge Nalitz entered a decision on the

merits of the challenge raised in Range’s motion for reconsideration: He

affirmed the December 30, 2014 order that allowed Residents to serve a

subpoena on URS regarding the “production of any and all air monitoring or

testing or both performed at the Day, Carter and Lowery impoundments.”

Order, 2/5/15. The February 5, 2015 order did not discuss privileged

information under Rule 4003.5(a)(3), and it lacked any procedure for

protecting purportedly privileged documents in URS’ possession or balancing

Range’s privacy interest against Residents’ asserted need for the requested

discovery.

This appeal followed. Range and the trial court have complied with

Pa.R.A.P. 1925, and Range presents the following questions for our

consideration:

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I. Whether the lower court erred in entering an order permitting service of an overly broad subpoena that would require a party’s non-testifying expert to disclose privileged material and work product (1) in violation of the work product doctrine, the attorney-client privilege, and Pennsylvania Rule of Civil Procedure 4003.5(a)(3), and (2) [Residents] have not shown exceptional circumstances warranting an exception to Rule 4003.5(a)(3).

II. Whether these errors are immediately appealable under Pennsylvania Rule of Appellate Procedure 313.

Range’s Brief at 4.

As a preliminary matter, we address Residents’ contention that this

appeal is untimely and, therefore, should be quashed. Residents claim that

the trial court did not expressly grant Range’s motion for reconsideration,

but entered a stay without considering the merits of the motion for

reconsideration. Residents’ Brief at 22. Thus, Residents argue, this appeal

lies from the December 30, 2014 order granting its motion to quash Range’s

objection to the subpoena, not the order from which Range appealed on

February 9, 2015. Id. at 23. We disagree.

A court may grant a party’s motion to reconsider, but only if (1) a

motion to reconsider is filed within the appeal period; and (2) the court

expressly grants reconsideration within the appeal period. Pa.R.A.P.

1701(b)(3). Here, Range filed a motion for reconsideration of the

December 30, 2014 order on January 13, 2015, which was within the thirty-

day appeal period. In response, Judge Emery entered an order staying the

proceedings and assigning the case to Judge Nalitz. Order, 1/13/15.

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However, “an order that ‘all proceedings shall stay’ will not suffice” as a

grant of reconsideration. Pa.R.A.P. 1701, Note. Consequently, Range filed a

motion to amend the January 13, 2015 stay order on January 23, 2015.

Accepting Range’s argument, Judge Emery vacated the January 13, 2015

stay, expressly granted Range’s motion for reconsideration, and

reaffirmed her assignment of the case to Judge Nalitz on January 26, 2015,

which was still within the thirty-day appeal period. Order, 1/26/15.

Judge Nalitz affirmed the December 30, 2014 order on February 5, 2015,

and Range filed a notice of appeal five days later. Order, 2/5/15; Notice of

Appeal, 2/10/15. Thus, this appeal is timely. See Pa.R.A.P. 1701(b)(3)

(“Where a timely order of reconsideration is entered under this paragraph,

the time for filing a notice of appeal or petition for review begins to run anew

after the entry of the decision on reconsideration, whether or not that

decision amounts to a reaffirmation of the prior determination of the trial

court . . .”).

As Judge Emery observed, Residents’ counsel was “confusing a grant

of motion for reconsideration [with] a reversal of Judge O’Dell Seneca’s

order.” N.T., 1/29/15, at 7. However, a decision on a motion for

reconsideration and a decision on a challenge to the order to be

reconsidered are not one and the same. They are two distinct requests,

each requiring its own ruling. “If a trial court fails to grant reconsideration

expressly within the prescribed 30 days, it loses the power to act upon both

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the petition for reconsideration and the original order.” Gardner v. Consol.

Rail Corp., 100 A.3d 280, 283 (Pa. Super. 2014) (quoting Valley Forge

Center Associates v. Rib–It/K.P., Inc., 693 A.2d 242, 245 (Pa. Super.

1997)); Pa.R.A.P. 1701. This principle is premised upon application of 42

Pa.C.S. § 5505, which provides that “a court upon notice to the parties may

modify or rescind any order within 30 days after its entry ... if no appeal

from such an order has been taken or allowed.” Gardner, 100 A.3d at 283.

Judge Emery recognized this distinction when she advised Residents’ counsel

that she had granted the motion for reconsideration, but Judge Nalitz would

rule on the merits of Range’s challenge and “either affirm or change” the

December 30, 2014 order. N.T., 1/29/15, at 4. Judge Nalitz also recognized

this distinction. “[H]aving previously granted reconsideration of the Order of

December 30, 2014,” Judge Nalitz affirmed that order, thereby allowing

Residents to serve a subpoena on URS. Order 2/5/15. Hence, we deny

Residents’ motion to quash this appeal.

Next, we examine our jurisdiction to entertain this appeal. We

recognize that “most discovery orders are deemed interlocutory and not

immediately appealable because they do not dispose of the litigation.”

Veloric v. Doe, 123 A.3d 781, 784 (Pa. Super. 2015) (quoting Dougherty

v. Heller, 97 A.3d 1257, 1261 (Pa. Super. 2014) (en banc) (citation

omitted), appeal granted in part, 109 A.3d 675 (Pa. 2015)). “However,

certain discovery orders, particularly those involving ostensibly privileged

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material, have been found to be immediately appealable as collateral orders

pursuant to Pa.R.A.P. 313.” Veloric, 123 A.3d at 784 (citation omitted);

see also Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1016 n.1 (Pa.

Super. 2015) (“When a party is ordered to produce materials purportedly

subject to a privilege, we have jurisdiction under Pa.R.A.P. 313 . . .”).

“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 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). According to the Pennsylvania Supreme Court, “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). “Whether an order is

appealable under Pa.R.A.P. 313 is a question of law. As such, our standard

of review is de novo and our scope of review is plenary.” Rae v.

Pennsylvania Funeral Directors Ass’n, 977 A.2d 1121, 1126 n.8 (Pa.

2009). If the requirements of Rule 313 are not met, and in the absence of

another exception to the final order rule, an appellate court lacks jurisdiction

to consider an appeal of such an order. Id. at 1125.

Here, Range contends that the discovery order allowing Residents to

serve a subpoena on URS is separable from and collateral to the main cause

of action between Residents and Range for personal injury and property

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damage. Range’s Brief at 13. Range further claims that preventing

disclosure of its purportedly privileged material “is an important privacy right

deeply rooted in public policy.” Id. at 15. Lastly, Range asserts, “the

privileged nature of the documents in URS’s possession will be irreparably

lost if appellate review of the [discovery] Order is postponed until after final

judgment.” Id. at 16.

Upon review, we agree with Range that the challenged discovery order

is appealable as a collateral order. Accord Rhodes v. USAA Casualty Ins.

Co., 21 A.3d 1253, 1258 (Pa. Super. 2011) (“Generally, discovery orders

involving purportedly privileged material are appealable because if

immediate appellate review is not granted, the disclosure of documents

cannot be undone and subsequent appellate review would be rendered

moot.”). Thus, we now turn to the substantive issue raised by Range.

Range challenges the trial court’s order permitting Residents to serve a

subpoena on URS as noticed. Our standard of review in addressing the

propriety of a discovery order is whether the trial court committed an abuse

of discretion. Gallo v. Conemaugh Health Sys., Inc., 114 A.3d 855 (Pa.

Super. 2015). Whether a privilege protects a communication from

disclosure is a question of law. Saint Luke’s Hosp. of Bethlehem v.

Vivian, 99 A.3d 534 (Pa. Super. 2014), appeal denied, 114 A.3d 417 (Pa.

2015). “This Court’s standard of review over questions of law is de novo,

and the scope of review is plenary.” Id. at 540 (quoting In re Thirty–

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Third Statewide Investigating Grand Jury, 86 A.3d 204, 215 (Pa. 2014)

(internal citations omitted)). The “party invoking a privilege must initially

set forth facts showing that the privilege has been properly invoked.” Red

Vision Systems, Inc. v. National Real Estate Information Services,

L.P., 108 A.3d 54, 62 (Pa. Super. 2015). “Once the invoking party has

made the appropriate proffer, then the burden shifts to the party seeking

disclosure to set forth facts showing that disclosure should be compelled

either because the privilege has been waived or because an exception to the

privilege applies.” Yocabet, 119 A.3d at 1019 (citing Red Vision).

Judge Nalitz found that:

[d]espite two hearings, a brief, and a motion to reconsider, Range Resources has failed to provide to the [c]ourt any meaningful evidence that URS Corporation was retained in anticipation of litigation or in preparation for trial. The exhibits of the parties reflect that URS Corporation may have been performing services for Range Resources as early as 2011. But the record does not indicate whether URS Corporation was retained at the behest of counsel, at the behest of the Pennsylvania Department of Environmental Protection, or by Range Resources for some other purpose. Therefore, [the court found] that Range Resources has failed to demonstrate by a preponderance of the evidence that URS Corporation is an expert consultant. Accordingly, the Motion to Quash Objection was GRANTED.

Trial Court Opinion, 4/1/15, at 4.2

2 Noticeably absent from Judge Nalitz’s analysis is mention of Range’s supplemental exhibit, the engagement letter. This omission and the jurist’s reference to “any meaningful evidence” lead to an inference that he assigned little or no weight to the engagement letter, which was within his discretion.

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Range asserted in the trial court and maintains on appeal that it

“retained URS on multiple occasions for distinct projects—including the

provision of services as an expert in anticipation of litigation and trial

preparation. . . . Therefore, discovery of information in URS’s possession

must be guided by [Pa.R.C.P.] 4003.5.” Range’s Brief at 18 (citing Cooper

v. Schoffstall, 905 A.2d 482, 492 (Pa. 2006)). Applying Rule 4003.5(a)(3),

Range argues that Residents “are not entitled to discover any facts known or

opinions held by URS in its capacity as an expert retained in anticipation of

litigation.” Id. at 19. Range further argues that Residents have failed to

establish extraordinary circumstances, pursuant to Pa.R.C.P. 4003.5(a)(3),

“that would exempt them from the general rule denying discovery” from a

non-testifying expert such as URS. Id. at 22.

Residents respond that Range failed to establish that the requested

material is protected. Residents’ Brief at 36. In support of their position,

Residents submit Range employee Pete Miller’s testimony that URS

conducted air monitoring at the Carter and Lowery impoundment sites “in

response to complaints received by surrounding landowners.” Id. (citing

Motion to Quash Objection, 12/30/14, at Exhibit C (N.T. Miller Deposition,

8/29/14, at 463–464)). Additionally, Residents point out that, at a public

hearing held before the underlying action was filed, Range’s counsel

informed the Cecil Township Board of Supervisors that Range paid “for a

half-million dollar study using URS consultants” to conduct air studies. Id.

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at 38 (citing Motion to Enforce Subpoena, 3/19/15, at Exhibit E (N.T.,

4/21/11, at 122)). When asked about the availability of emissions tests,

Range’s counsel informed the supervisors as follows:

[W]e do not have any results to share with you at this point. We have decided that we are going to do local, regional, and shale- wide evaluation. So it will ultimately be available. It does not exist today. I can check to see what the schedule is for when we’re going to have it. And I’d be happy to share that with you.

N.T., 4/21/11, at 122–123. According to Residents, “Range failed to meet

its burden and satisfy the Trial Court that documents in URS possession

were supported by privilege because Range could not differentiate . . . where

any claimed privilege began and where any claimed privilege ended.”

Residents’ Brief at 40. Residents also insist that Range waived its assertion

of a privilege by failing to raise it in response to discovery requests issued

before Range filed the engagement letter. Id. at 45.

Discovery in civil cases extends to “any matter, not privileged, which is

relevant to the subject matter involved in the pending action, . . . including

the . . . content . . . of any . . . documents,” subject to the provisions of

Pa.R.C.P. 4003.2 through 4003.5. Pa.R.C.P. 4003.1(a). The scope of Rule

4003.1(a) includes items prepared in anticipation of litigation or trial but not

core attorney work product. Pa.R.C.P. 4003.3. It also includes discovery

from non-party witnesses retained as experts who are expected to testify at

trial. Pa.R.C.P. 4003.5.

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Upon review, we discern no basis for disturbing the trial court’s

conclusion that Range failed to invoke the protection of Pa.R.C.P.

4003.5(a)(3). Even if counsel for Range engaged URS in 2011 as an expert

consultant in anticipation of litigation, Range admits that it also retained URS

as a non-expert “to perform air monitoring at select natural gas sites” and

that the scope of Residents’ subpoena includes “non-privileged materials.”

Range’s Brief at 6, 8. Moreover, the record establishes that URS performed

studies for Range at various sites as early as 2011. Motion to Quash

Objection, 12/30/14, at Exhibit C (N.T. Miller Deposition, 8/29/14, at 463–

464). In fact, in April of 2011, Range’s counsel expressed his willingness to

provide the Cecil Township Board of Supervisors with emissions testing

information once it was collected. N.T., 4/21/11, at 122–c123.

Furthermore, we are persuaded by Residents’ two-fold argument regarding

the relevance of studies conducted by URS at other sites: “the Day, Carter

and Lowery Impoundments were flowing their content back to the Yeager

Site” and “air monitoring performed at any other site is extremely relevant

regarding Range’s knowledge, or lack thereof, regarding emissions from

impoundments and related natural gas drilling facilities.” Residents’ Brief at

39. Based on the record at hand, we conclude that Range has no grounds

for objecting to Residents’ request for relevant information possessed by

URS in its capacity as an engineering consultant that was not retained in

anticipation of litigation. Pa.R.C.P. 4003.1.

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In sum, we discern no error of law or abuse of the trial court’s

discretion in allowing Residents to serve their subpoena upon URS. Needless

to say, the trial court has options for balancing Range’s interest in protecting

privileged information possessed by URS and Residents’ interest in receiving

relevant information to which they are entitled. See Berkeyheiser v. A-

Plus Investigations, Inc., 936 A.2d 1117, 1125 (Pa. Super. 2007) (“The

trial court is responsible for ‘overseeing discovery between the parties and

therefore it is within that court’s discretion to determine the appropriate

measure necessary to insure adequate and prompt discovering of matters

allowed by the Rules of Civil Procedure.’” PECO Energy Co. v. Insurance

Co. of North America, 852 A.2d 1230, 1233 (Pa. Super. 2004)).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/29/2016

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