U.S. Drinks, LLC v. Risell, C.

• Court: Superior Court of Pennsylvania
• Decided: August 26, 2014
• Docket: 156 MDA 2014
• Status: Unpublished

Opinion

J-A26042-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. DRINKS, LLC AND THE LION IN THE SUPERIOR COURT OF BREWERY, INC. PENNSYLVANIA

Appellants

v.

CLIFF RISELL

Appellee No. 156 MDA 2014

Appeal from the Order Entered December 26, 2013 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2012-17237-0

BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED AUGUST 26, 2014

For the reasons set forth below, we quash this appeal.

action in the Court of Common Pleas of Luzerne County against Cliff Risell,

their former president and CEO, alleging breach of contract, breach of

fiduciary duty and tortious interference with contract. Risell filed

counterclaims against the companies for breach of his employment

agreement, defamation and unjust enrichment. Risell subsequently filed

praecipes for writs to join Mark Henriques and Graham Lloyd as additional

motion to strike the joinder writs. In an order dated December 26, 2013,

the trial cou

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On January 24, 2014, the companies appealed the order denying their

motion to strike the joinder writs to this Court1. On June 20, 2014, Risell

filed an application to quash the appeal. Several days later, the companies

filed a response in opposition to the application to quash, claiming that they

had the right to appeal under the collateral order doctrine embodied in

Pa.R.A.P. 313.

An order is appealable if it is: (1) a final order, (2) an interlocutory

order appealable by right or permission, or (3) a collateral order. Estate of

Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa. Super. 2009).

The lone issue in this case is whether the companies have the right to appeal

under the collateral order doctrine2. A collateral order is an order (1)

separable from and collateral to the main cause of action (2) where the right

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1 In addition to filing the notice of appeal, on January 24, 2014, the companies filed an application with the trial court requesting that it amend its December 26, 2013 order to include the statements specified by Pa.C.S. § 702(b), i.e, that this order involves a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from the order may materially advance the ultimate termination of the matter. On January 28, 2014, the lower court denied this application. On February 26, 2014, the companies filed a petition for review in this Court at 28 MDM 2014. On April 2, 2014, this Court denied the petition for review. 2

is not a final order, see Pa.R.A.P. 341, or an interlocutory order appealable by right. See Pa.R.A.P. 311; see also Forrester v. Hansom, 901 A.2d 548, 555 (Pa.Super.2006) (order granting motion for leave to file joinder complaint was not final, appealable order). Nor have the companies obtained permission to take an interlocutory appeal. See Pa.R.A.P. 1311.

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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. Courts must interpret this doctrine

narrowly, and each of the three prongs must clearly be present for an order

to be considered collateral. J.S. v. Whetzel, 860 A.2d 1112, 1117 (Pa.

Super. 2004).

T

doctrine, separability. O

of this element which

recognize[s] that some potential interrelationship between merits issues and the question sought to be raised in the interlocutory appeal is tolerable. . .[A] claim is sufficiently separate from the underlying

conceptually distinct from the merits of plaintiffs

with the merits, [it] nonetheless raises a question that is significantly different from the questions

Pridgen v. Parker Hannifan Corp., 905 A.2d 422, 433 (Pa.2006)

(citations omitted). The predominant question in this case is which party, if

any, is liable for breach of contract, breach of fiduciary duty and/or other

torts alleged in the pleadings. Whether Risell can join Henriques and Lloyd

as additional defendants is a procedural issue under Pa.R.Civ.P. 2252(a) that

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The second prong of the collateral order doctrine is whether the issue

is too important to be denied review. While the joinder issue might pose an

interesting procedural wrinkle in isolated cases, it is not of real interest to

the public. It is only important to the parties. Thus, it is not too important

to be denied review. Compare Pridgen (i

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year repose period for replacement parts, applied to manufacturer and

certificate holder of original aircraft engine, who did not manufacture the

replacement parts that allegedly failed causing crash of general aviation

aircraft, was too important to deny review of order denying manufacturer's

summary judgment motion; federal policy of GARA was to ameliorate the

impact of long-tail liability on declining American aviation industry to

regenerate essential domestic aviation enterprises); Yorty v. PJM

Interconnection LLC, 79 A.3d 655, 662 (Pa.Super.2013) (issue of whether

regional transmission organization (RTO) was immune from negligence suit,

pursuant to a tariff granted by Federal Energy Regulatory Commission

(FERC), warranted review of denial of RTO's motion for summary judgment,

under collateral order doctrine governing interlocutory appeals; federal

interests were sufficiently important to justify intervention of appellate court

in furtherance of policies of effective maintenance and cost control).

Lastly, the order striking the joinder writs does not satisfy the third

prong of irreparable harm.

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party or introduce potential inefficiencies, including post-trial appeals of

orders and subsequent retrials, are not considered as [causing] irreparabl[e]

los[s] [of an issue]. An interest or issue must actually disappear due to the

Commonwealth v. Sabula, 46 A.3d 1287, 1293

(Pa.Super.2012) (Mundy, J.). For example, an interest such as immunity

from suit may well disappear due to trial processes, because the purpose of

immunity is to protect the defendant from going through trial in the first

due to trial processes. The companies will have the right to appeal the

joinder issue upon entry of a final order under Rule 341, assuming the

companies still desire to appeal at that time. While the companies might

consider it inconvenient to postpone their appeal until a final order,

perceived inconvenience is not equivalent to irreparable harm. Permitting

this appeal would run afoul of the policy to interpret the collateral order

doctrine narrowly to avoid swallowing the general rule that only final orders

are appealable as of right. Geniviva v. Frisk, 725 A.2d 1209, 1214

(Pa.1999).

Since we conclude that the companies fail to satisfy the second and

third prongs of the collateral order doctrine, we must quash this appeal.

Appeal quashed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/26/2014

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