Appeal from the Order of the Court of Common Pleas of York County in case of City of York v. Shoemaker, Thompson & Ness, No. 78 S 1244.
John W. Thompson, Jr., with him Barbara Orsburn Stump, for appellant.
Donald B. Hoyt, for appellee.
Judges Mencer, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge DiSalle.
On April 28, 1978, the City of York (City) commenced an assumpsit action, by way of a praecipe for writ of summons, against the law firm of Shoemaker, Thompson & Ness (Taxpayer) to collect payment of the City's Business Privilege Tax (Tax). The same day, the City obtained a subpoena to compel Taxpayer to produce books and records revealing its gross receipts. On May 3, 1978, Taxpayer filed a motion for a protective order. The lower court temporarily restrained production of the records, and ordered that a rule be issued upon the City to show cause why the protective order should not be made permanent. On August 11, 1978, after hearing, the lower court discharged the rule and revoked the protective order. Taxpayer appealed from this order, and, on June 19, 1979, this Court, by President Judge Bowman, raised
sua sponte the question of whether the order is final and appealable or whether it is interlocutory. The parties were directed to file supplemental briefs addressing this issue.
In its original brief, Taxpayer argues that disclosure of its books, effectively compelled by the lower court's order, would result in disclosure of its clients' identities in violation of ethical precepts and the attorney-client privilege. Taxpayer then argues that the City lacks the authority to impose the Tax and/or that the Tax is unconstitutional. In its supplemental brief, Taxpayer asserts that we should interpret the lower court's order as final and hear the appeal pursuant to the dictates of the rule adopted by the Supreme Court in Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975). See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).
In Bell, supra, our Supreme Court expressly adopted the rule set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), relating to the determination of what constitutes a final order. In Cohen, the Supreme Court of the United States established an exception to the final judgment rule to fit those situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. This exception embraces those orders "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546.
Applying the Cohen exception to the facts of this case, it would appear that the disclosure of clients' identities, necessitated by surrender of Taxpayer's books, might result in irreparable injury to Taxpayer. However, in its brief, the City states that it "has no
interest in the identities of Appellant's clients, only their [sic] gross receipts. If Appellant wishes to cover that section of his [sic] ledger showing source of fees, the City of York has no objection." We take this to mean that before Taxpayer yields up its records and books to the ...