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AmerisourceBergen Corp. v. Does

Superior Court of Pennsylvania

November 8, 2013

AMERISOURCEBERGEN CORPORATION AND NEIL HERSON Appellee
v.
JOHN DOES 1 AND 2 Appellants AMERISOURCEBERGEN CORPORATION AND NEIL HERSON Appellee
v.
JOHN DOES 1 AND 2 Appellants

Appeal from the Order Entered July 11, 2012 In the Court of Common Pleas of Chester County Civil Division at No.: 2011-08260-TT

BEFORE: STEVENS, P.J., [*] WECHT, J., and COLVILLE, J.[**]

OPINION

WECHT, J.

John Does 1 and 2 ("Appellants") challenge two July 11, 2012 trial court orders concerning pre-complaint discovery initiated by AmerisourceBergen Corporation ("ABC") and Neil Herson (collectively "Appellees"). In the first order, the trial court denied Appellants' "Emergency Petition for Disqualification of Counsel [for Appellees] and to Prohibit and Enjoin [Appellees] from Commencing an Action Against [Appellants] in Pennsylvania." In the second, the trial court granted Appellees' "Petition to Compel Disclosure of [Appellants'] Identity." We conclude that the orders as to which review is sought are neither final orders nor collateral orders, and therefore are not within our jurisdiction at this time. Consequently, we quash Appellants' appeal and remand.[1]

The trial court has provided the following account of the factual and procedural history of this case:

On July 22, 2011, an article was posted on www.barrons.com titled "Profiting Off Medco-Express Merger is Easy as ABC: Lazard, by Avi Salzman." (Petition to Compel Disclosure of John Doe's Identity by Third Party Verizon Online, LLC, at ¶ 12[.]) At 2:37 p.m. on July 22, 2011, the following comment was posted online to this article by someone allegedly falsely identifying himself or herself as "Neil Herson[.]"
Neil Herson wrote:
Hassel's margin and EPS analysis is spot on. However, the other issue is working capital. Medco is a very fast payer – so fast that ABC operates in a very POSITIVE working capital position on its business. If Medco leaves, expect a $300-500 million cash hit to ABC.
(Petition to Compel Disclosure, ¶ 13[.]) A second comment was posted by someone later that day at 6:24 p.m., again allegedly falsely identifying himself or herself as "Neil Herson[.]"
Neil Herson wrote:
ABC sells a little over $300 million per business day. Cash on hand is 5 to 7 days of revenue. Operating cash flow is 3 to 4 days of revenue. With $4 billion of A/R, bad debt risk relative to cash is notable. Yes, ABC's cash balance appears substantial, however interesting to view in the above context.
(Petition to Compel Disclosure, ¶ 15[.]) Neil Herson is president of ASD Specialty Healthcare, Inc., a subsidiary of ABC. (Petition to Compel Disclosure, ¶ 10[.] It is alleged that neither Neil Herson[, ] "a highly placed executive affiliated with [ABC, ]" nor ABC authorized or consented to these postings. (Petition to Compel Disclosure, ¶¶11, 17[.])
As a result of these alleged unauthorized postings, ABC filed a Writ of Summons on July 28, 2011 naming "John Doe" as a defendant. On August 3, 2011, ABC served a subpoena upon Dow Jones and Company, Inc. in order to discover the identity of the person or persons who posted the comments. (Petition to Compel Disclosure, ¶ 7[.]) Dow Jones and Company, Inc. provided two IP addresses associated with the Barron's postings. (Petition to Compel Disclosure, ¶ 7[.]) ABC served a subpoena upon Verizon Online, LLC on August 30, 3011 seeking to identify the subscriber or subscribers associated with the IP addresses provided by Dow Jones and Company, Inc. (Petition to Compel Disclosure, ¶ 8[.]) By correspondence dated September 1, 2011, Verizon Online, LLC informed ABC [that] it would not disclose the identity of the subscriber or subscribers without an order from the court. (Petition to Compel Disclosure, ¶ 8[.)]
Subsequently, ABC filed a Petition to Compel Disclosure of John Doe's Identity by Third Party Verizon Online, LLC on October 13, 2011. Pursuant to the Pennsylvania Stored Communications Act, 18 Pa.C.S.A §§ 5741[, ] et seq. (Act), an entity may divulge a record or other information regarding a subscriber to an electronic communication service to a party to a legal proceeding, upon a court order entered under subsection (c.1) of 18 Pa.C.S.A. § 5742. 18 Pa.C.S. § 5742(c)(2)(iv).
* * *
Upon consideration of ABC's Petition to Compel, the [c]ourt entered a preliminary Order dated March 13, 2012 requiring Verizon Online, LLC to disclose the identity of John Doe to the [c]ourt only. On or about March 22, [2012], Verizon Online, LLC provided to the [c]ourt the identities of the two subscribers associated with the IP addresses of the posts following the article on Barron's website. On April 19, 2012, the [c]ourt issued Rules upon both [Appellants] to show cause why his or her identity should not be disclosed to [Appellees]. Both [R]ules were filed under seal and included Notices to Defend as well as copies of ABC's Petition to Compel Disclosure. These Rules were sent by regular and certified mail. [Appellants] were provided 20 days within which to file any objections to disclosure. A hearing on any objections to disclosure was scheduled for June 11, 2012. On May 9, 2012, [Appellants] filed objections to disclosure and on June 8, 2012, [Appellants] sought a continuance of the June 11, 2012 hearing. The [c]ourt continued the hearing until July 11, 2012 and granted [Appellees] leave to file a reply to [Appellants'] objection to disclosure of identity.
Following a hearing on July 11, 2011, the [c]ourt granted [Appellees'] Petition to Compel Disclosure of [Appellants'] Identity; however, disclosure of [Appellants'] identity was to be delayed pending the expiration of the appeal period applicable to the Order and disposition of any timely ...

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