U.S. Drinks, LLC v. Risell, C. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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