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decided: April 27, 1987.


Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Jane Doe v. Commonwealth of Pennsylvania, Department of Public Welfare, Dr. Lillian Meyers and Dr. Duncan Campbell v. Kevin Cooper, No. GD 83-10470.


Frank J. Micale, Sr. Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, John G. Knorr, III, Sr. Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for appellants.

E. J. Strassburger, Strassburger, McKenna, Gutnick & Potter, for appellee.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 105 Pa. Commw. Page 483]

The Commonwealth, Department of Public Welfare (Department), Dr. Lillian Meyers and Dr. Duncan Campbell, appeal an Allegheny County Common Pleas Court order compelling the production of documents. Jane Doe has filed a motion to quash this appeal. The merits of the trial court order and the motion to quash are both before us at this time.

Doe brought a personal injury action against the Department and Drs. Meyers and Campbell of Mayview State Hospital (Mayview staff) after an escapee from Mayview abducted and raped her. In connection with her negligence complaint, Doe sought, inter alia, two documents: (1) a memorandum from Dr. Meyers to Mayview's superintendent outlining the psychological status and chronology leading to the inmate's escape, and (2) a document known as a "Task Force Report," containing a retrospective analysis from several departments on the inmate's admission, background and escape. The Department and Mayview staff refused to produce these documents, claiming that the documents

[ 105 Pa. Commw. Page 484]

    were privileged and protected by Section 111 of the Mental Health Procedures Act*fn1 and by the Peer Review Protection Act.*fn2

The common pleas court, concluding the documents were not privileged, ordered production of these and other documents and directed in camera inspection to determine their relevancy.

Turning to the motion to quash, Doe asks this Court to dismiss the Department's appeal because the orders directing production of documents are interlocutory and non-appealable. Under Section 762(a)(1) of the Judicial Code, the Commonwealth Court has jurisdiction over appeals from final orders of the common pleas courts. 42 Pa. C.S. ยง 762(a)(1). It has been said that a final order ends the litigation or disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974). Furthermore, in this Commonwealth, orders to parties directing responses are interlocutory and non-appealable. See, e.g., Pennsylvania Human Relations Commission v. Jones & Laughlin Steel Corp., 483 Pa. 35, 394 A.2d 525 (1978) (appeal of Commonwealth Court order enforcing a subpoena to testify quashed).*fn3

The Department and the Mayview staff concede this principle but argue that the order in this case falls into the "collateral order" exception to the rule that only final orders are appealable.

In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), the United States Supreme Court articulated the collateral order doctrine. To be appealable, an order, though not ending the litigation or disposing

[ 105 Pa. Commw. Page 485]

    of the case, must be separable from and collateral to the main cause of action; it must involve a right too important to be denied review; and the question presented must be such that if review is postponed until final judgment in the case, the claimed right will be irretrievably lost. This doctrine was recognized by our own Supreme Court in Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), and it has been held that each of the three Cohen factors must be satisfied. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985).

Other than Steel v. Weisberg, 347 Pa. Superior Ct. 106, 500 A.2d 428 (1985), where our Superior Court noted that an order compelling discovery of a person not party to the original complaint could arguably be appealed under the collateral order doctrine, the parties point to no authority -- and our research reveals none -- which has held that such orders fall within the collateral order exception to the rule of non-appealability. Indeed, in Gottschall v. Jones & Laughlin Steel Corp., 333 Pa. Superior Ct. 493, 482 A.2d 979 (1984), cert. denied, 474 U.S. 845, 106 S.Ct. 134 (1985), our Superior Court held a protective order prohibiting discovery to be unappealable under the Cohen test.

Courts of federal jurisdiction have applied the Cohen doctrine and have arrived at different answers to the question of appealability.*fn4 The U.S. Court of Appeals for the Third Circuit in Borden Co. v. Sylk, 410 F.2d 843 (3rd Cir. 1969), dismissed for lack of jurisdiction an order compelling disclosure of business information by

[ 105 Pa. Commw. Page 486]

    a non-party witness. There the Court concluded that to allow appeals from discovery orders would be "to invite inundation of appellate dockets with what have heretofore been regarded as non-appealable matters" and "would constitute the federal courts of appeals as second-stage motion courts reviewing pretrial applications of all non-party witnesses alleging some damage because of the litigation." Id. at 846. We agree with this reasoning and conclude that, if discovery orders directed to non -party witnesses are not collateral, then such orders directed to parties cannot be any more collateral.

In Grinnell Corp. v. Hackett, 519 F.2d 595 (1975), the First Circuit Court declined to hear the appeal of a party resisting answering interrogatories on the ground that the information sought was constitutionally protected. There the Court rejected the appellant's argument that the order was separable (i.e., collateral) because its First Amendment rights would be compromised. Quoting with approval 4 J. Moore, Federal Practice para. 26.36[6] (Supp. 1973), the court stated:

Once the collateral order doctrine is applied to orders for disclosure by parties, it is difficult to suggest any limitation on the right to appeal such an order over a claim of privilege.

We believe this reasoning applies equally to the claim of statutorily created privileges the Department asserts. As in Grinnell, "the discovery order here is materially connected to the underlying . . . issue." Id. at 597.

Here, the documents relate to the actions undertaken by the staff and physicians at Mayview State Hospital, which actions Doe asserts, by their negligence, were the proximate cause of her injury. The information sought has the potential to determine the ultimate issues of liability or to dissuade the trier of fact from finding liability at all. When courts have applied the

[ 105 Pa. Commw. Page 487]

Cohen doctrine to discovery orders, they have held them to be "separable and collateral" only when they did not relate in any way to the merits of the action itself.

Moreover, this Court should not be compelled to find appealability solely because of the possible serious consequences asserted or the "importance" of the right which may be compromised if review is not immediately had. Every party resisting discovery rightly invokes a significant claim and every interlocutory order, as the Borden court said, "involves, to some degree, a potential loss." Id. at 846. The common pleas court, having original jurisdiction, is charged with disposing of those conflicting interests.

Notwithstanding the importance of the confidentiality provisions of the Peer Review Protection and Mental Health Procedures Acts, appealability under the Cohen doctrine will not lie unless, as we have said, all three factors are satisfied. Here, the first, "separability" test, has not been met.

Thus, having no jurisdiction to hear the Department's appeal, we grant Doe's motion to quash.


The motion of appellee Jane Doe to quash the appeal in the above-captioned matter is granted, and the appeal of the order of the Allegheny County Common Pleas Court, No. GD 83-10470 dated July 21, 1986, is quashed.


Motion granted.

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