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Rae v. Pennsylvania Funeral Directors Association

August 17, 2009

ROBERT RAE AND COMMONWEALTH FUNERAL CONSULTANTS, INC.
v.
PENNSYLVANIA FUNERAL DIRECTORS ASSOCIATION, JOHN W. EIRKSON AND JAMES O. PINKERTON
v.
MONTY J. BATSON, ESQ., SHAWN E. SMITH, ESQ., AND LARRY HALL
APPEAL OF: ROBERT RAE AND COMMONWEALTH FUNERAL CONSULTANTS, INC.



Appeal from the Order of the Commonwealth Court entered on May 31, 2007 at No. 1804 C.D. 2006 reversing the Order of the Court of Common Pleas of Dauphin County, Civil Division, dated August 24, 2006 at No. 3202 S. 2001.

The opinion of the court was delivered by: Madame Justice Todd

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

ARGUED: December 4, 2008

OPINION

In this appeal, we are asked to determine whether the collateral order test laid out in Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (Pa. 1998), and Pa.R.A.P. 313 must be met for each individual issue an appellate court reviews on collateral appeal. The question in essence is whether this Court should adopt an "issue-by-issue application" of Rule 313, or whether, once the collateral order test is satisfied with respect to one issue, an appellate court has jurisdiction to consider every issue within the ambit of the appealed order - that is, whether to adopt a "whole order approach" to Rule 313. For the reasons which follow, we adopt an issue-by-issue application of Rule 313. Accordingly, we vacate the determination of the Commonwealth Court quashing the depositions of Appellees Monty J. Batson, Esquire, Shawn E. Smith, Esquire, and Larry Hall (collectively "Deponents"), and remand for further proceedings consistent with this opinion.

The background of this case is as follows: Appellants Robert Rae and Commonwealth Funeral Consultants, Inc. operated a business selling insurance for funeral expenses to consumers, which was investigated by the Pennsylvania Bureau of Professional and Occupational Affairs ("the Bureau"). The investigation commenced after a complaint filed by the Pennsylvania Funeral Directors Association ("the Association") in 2000. Initially, the Bureau assigned Appellee Monty J. Batson to the investigation. After five years of unexplained inactivity, the file was closed and then reopened.*fn1 At that time, Deponents Smith and Hall were assigned to the investigation.

In the interim, Appellants commenced the present civil suit against the Association for defamation, tortious interference with contractual relationships, and tortious interference with potential contractual relationships, alleging the Association told consumers Appellants were engaged in illegal activity and that they consequently lost business. Appellants filed subpoenas duces tecum upon Smith and Hall, seeking to depose them and directing that they produce the file of the Bureau's investigation into Appellants at the time of their deposition. The Bureau initially sought to quash the subpoenas. However, after briefing, argument, and the trial court's in camera review of the file, the Bureau voluntarily produced the file. Deponents then moved to quash the subpoenas as related to their depositions only, and the Bureau moved to treat the file as confidential. After a subsequent status conference, the trial court denied Deponents' motion to quash and scheduled the depositions, though specifying that proceedings would be conducted in camera and barring any party from disclosing any information which might arise during the discovery process to any non-party without the express permission of the court. Trial Ct. Order, 8/24/06. Deponents appealed to the Commonwealth Court, asserting, inter alia, that their testimony was (1) precluded by the deliberative process privilege, and (2) irrelevant to Appellants' cause of action. Appellants moved to quash the appeal as interlocutory, challenging whether the order in question was an appealable collateral order.

A unanimous panel of the Commonwealth Court denied the motion to quash the appeal and affirmed in part and reversed in part in a published opinion. Rae v. Pennsylvania Funeral Directors Ass'n, 925 A.2d 197 (Pa. Cmwlth. 2007). The court restated the well-established test for collateral review laid out in Ben, supra, and Pa.R.A.P. 313: collateral review is appropriate, despite the general directive that appellate courts conduct review only of final orders, if an order is (1) separable from and collateral to the main cause of action, (2) implicates rights which are too important to be denied review, and (3) the appellant's claim as to that order will be lost if postponed until final judgment. The court reasoned the order in question was a collateral order, since it was collateral to the defamation suit, involved the important issue of the deliberative process privilege, and would be mooted if review was postponed until final judgment because the privileged depositions would already have been conducted. On that basis, the court denied Appellants' motion to quash.

On the merits, the court concluded the Deponents' assertion of privilege was meritless. Nevertheless, rather than ending its review with that assessment, it went on to address the relevance of Deponents' testimony. In that regard, the court concluded Appellants had not demonstrated the relevance of Deponents' testimony and, accordingly, concluded deposing Deponents was inappropriate under Pa.R.Civ.P. 4003.1(a).*fn2

Appellants then sought allowance of appeal with this Court, which we granted on the following issue:

Must an appellate court separately apply the collateral order test laid out in Pa.R.A.P. 313 and this Court's decision in Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (Pa. 1999), to every legal question it addresses on collateral appeal, or is it sufficient that the legal question giving rise to the order itself satisfies the collateral order test?

Rae v. Pennsylvania Funeral Directors Ass'n, 597 Pa. 220, 951 A.2d 256 (2008) (order).*fn3

As a general rule, an appellate court's jurisdiction extends only to review of final orders. See Pa.R.A.P. 341 ("[A]n appeal may be taken as of right from any final order.") Final orders are those which either (1) dispose of all claims and all parties, (2) are explicitly defined as final orders by statute, or (3) are certified as final orders by the trial court or other reviewing body. See Pa.R.A.P. 341. The final order rule serves to maintain the appropriate relationship between the district and appellate courts... by ensuring that [trial judges'] every determination is not subject to the immediate review of an appellate tribunal.... The consolidation of all contested rulings into a single appeal provides the circuit courts with an opportunity, furthermore, to consider a trial judge's actions in light of the entire proceedings below, thereby enhancing the likelihood of sound appellate review.

Riyaz A. Kanji, The Proper Scope of Pendent Appellate Jurisdiction in the Collateral Order Context, 100 Yale L.J. 511, 512-13 (1990), (discussing the Collateral ...


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