Andrews, R. v. The Devereux Foundation ( 2021 )

J-A19003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RACHEL ANDREWS, INDIVIDUALLY, : IN THE SUPERIOR COURT OF
AND M.B., A MINOR, BY RACHEL : PENNSYLVANIA
ANDREWS, HIS PARENT AND :
NATURAL GUARDIAN :
:
:
v. :
:
: No. 109 EDA 2021
THE DEVEREUX FOUNDATION, THE :
DEVEREUX FOUNDATION D/B/A :
DEVEREUX ADVANCED BEHAVIORAL :
HEALTH, THE DEVEREUX :
FOUNDATION D/B/A DEVEREUX :
ADVANCED BEHAVIORAL HEALTH :
PENNSYLVANIA, THE DEVEREUX :
FOUNDATION D/B/A DEVEREUX :
PENNSYLVANIA, THE DEVEREUX :
FOUNDATION D/B/A DEVEREUX :
BENETO CENTER, THE DEVEREUX :
FOUNDATION D/B/A DEVEREUX :
CHILDREN'S BEHAVIORAL HEALTH :
SERVICES A/K/A CBH, THE :
DEVEREUX FOUNDATION D/B/A :
CHILDREN'S BEHAVIORAL HEALTH :
SERVICES BRANDYWINE PROGRAMS, :
THE DEVEREUX FOUNDATION D/B/A :
DEVEREUX CHILDREN'S :
BEHAVIORAL HEALTH CENTER, :
A/K/A DCBHC ACUTECARE, THE :
HELENA DEVEREUX FOUNDATION :
A/K/A HDF, DEVEREUX PROPERTIES, :
INC., DEVEREUX SCHOOLS, INC., :
DEVEREUX SCHOOLS, DEVEREUX :
BRANDYWINE, DEVEREUX DAY :
SCHOOL BRANDYWINE, DEVEREUX :
BRANDYWINE HIGH SCHOOL, :
DEVEREUX BRANDYWINE MIDDLE :
SCHOOL, AND ROBERT FLOOD :
:
:
:
J-A19003-21
APPEAL OF: THE DEVEREUX :
FOUNDATION, THE DEVEREUX :
FOUNDATION D/B/A DEVEREUX :
ADVANCED BEHAVIORAL HEALTH, :
THE DEVEREUX FOUNDATION D/B/A :
DEVEREUX ADVANCED BEHAVIORAL :
HEALTH PENNSYLVANIA, THE :
DEVEREUX FOUNDATION D/B/A :
DEVEREUX PENNSYLVANIA, THE :
DEVEREUX FOUNDATION D/B/A :
DEVEREUX BENETO CENTER, THE :
DEVEREUX FOUNDATION D/B/A :
DEVEREUX CHILDREN'S :
BEHAVIORAL HEALTH SERVICES :
A/K/A CBH, THE DEVEREUX :
FOUNDATION D/B/A CHILDREN'S :
BEHAVIORAL HEALTH SERVICES :
BRANDYWINE PROGRAMS, THE :
DEVEREUX FOUNDATION D/B/A :
DEVEREUX CHILDREN'S :
BEHAVIORAL HEALTH CENTER, :
A/K/A DCBHC ACUTECARE, THE :
HELENA DEVEREUX FOUNDATION :
A/K/A HDF, DEVEREUX PROPERTIES, :
INC., DEVEREUX SCHOOLS, INC., :
DEVEREUX SCHOOLS, DEVEREUX :
BRANDYWINE, DEVEREUX DAY :
SCHOOL BRANDYWINE, DEVEREUX :
BRANDYWINE HIGH SCHOOL, :
DEVEREUX BRANDYWINE MIDDLE :
SCHOOL
Appeal from the Order Entered December 9, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 200201692
BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED AUGUST 6, 2021
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
-2-
J-A19003-21
Appellants, defendants below (“Devereux”), appeal from the December
9, 2020 Order denying their Motion for Protective Order. After careful review,
we quash this appeal in part and reverse and remand with instruction in part.
The relevant facts and procedural history are as follows. On February
14, 2020, Appellees, Rachel Andrews and M.B., her son, filed a Complaint
against Devereux asserting, inter alia, that Devereux was negligent, reckless,
and grossly negligent in failing to protect M.B. from sexual and physical
assaults that occurred while M.B. was in Devereux’s care. On September 11,
2020, Appellees served an Amended Notice of Deposition issued to Carl E.
Clark, II, Devereux’s Chief Executive Officer. The Amended Notice of
Deposition included a duces tecum clause requesting that Clark produce
certain enumerated documents at his deposition.
On October 15, 2020, Devereux filed a Motion for Protective Order to
preclude Appellees from deposing Clark, arguing that the court should prevent
Clark from the “annoyance, embarrassment, oppression[,] and undue burden”
of a deposition because Appellees had not demonstrated that Clark had
“unique or superior personal knowledge of discoverable information.” Motion,
10/15/20, at ¶ 37 (citing Pa.R.C.P. 4011). Notably, Devereux did not present
any request, or argument in support of a request, that the trial court quash
the duces tecum portion of the Amended Notice of Deposition and order that
it not produce the documents sought by Appellees. The trial court granted
the Motion on November 20, 2020, and ordered that Clark not “reappear” for
deposition. Order, 11/20/20.
-3-
J-A19003-21
On December 1, 2020, Appellees filed a Motion for Reconsideration of
the court’s Order granting Devereux’s Motion for Protective Order. In the
Motion Appellees brought to the court’s attention that, notwithstanding the
language of the court’s Order, Clark had never appeared for deposition and,
thus, that by its November 20, 2020 Order, the court had precluded Appellees
from ever deposing Clark.
Eight days later, on December 9, 2020, without first permitting
Devereux to respond to Appellees’ Motion for Reconsideration, the trial court
entered an Order granting it. In so doing, the court affirmatively reversed its
earlier order by denying Devereux’s Motion for Protective Order and
compelling Clark to appear for deposition within twenty days. The court also
ordered Devereux to produce the enumerated documents requested in the
duces tecum clause of Appellees’ Amended Notice of Deposition, with the
exception of documents memorializing prior complaints of sexual abuse by
other Devereux residents.
Devereux filed a Notice of Appeal from the court’s December 9, 2020
Order denying its Motion for Protective Order. Both Devereux and the trial
court have complied with Pa.R.A.P. 1925.
Devereux raises three issues on appeal:
1. Did the trial court commit procedural errors by failing to allow
Devereux to respond to [Appellees’] reconsideration motion
and misapplying the reconsideration standard?
2. Should this Court hold, under the Apex Doctrine or Civil Rule
4011, that Devereux’s President and CEO may not be deposed
because he lacks special knowledge of the facts here and
-4-
J-A19003-21
[Appellee] can obtain that information from other Devereux
Personnel?
3. Did the trial court err in ordering Devereux’s President and CEO
to bring to a deposition an array of confidential documents
shielded by mental health and child protection laws and the
attorney-client privilege and that are irrelevant to this case?
Devereux’s Brief at 4 (reordered for ease of disposition).
Before we reach the merits of Devereux’s claims, we must consider
whether the trial court’s Order is appealable. In re Miscin, 885 A.2d 558,
560-61 (Pa. Super. 2005). “The question of the appealability of an order goes
directly to the jurisdiction of the Court asked to review the order.” Moyer v.
Gresh, 904 A.2d 958, 963 (Pa. Super. 2006) (citation omitted).
The instant Order contains two distinct directives: (1) compelling Clark
to appear for a deposition; and (2) directing Clark to produce certain
enumerated documents. Devereux asserts both parts of the Order are
appealable under the collateral order doctrine. See Pa.R.A.P. 313.
Pennsylvania Rule of Appellate Procedure 313 defines a collateral order
as one that: “1) is separable from and collateral to the main cause of action;
2) involves a right too important to be denied review; and 3) presents a
question that, if review is postponed until final judgment in the case, the claim
will be irreparably lost.” In re Bridgeport Fire Litigation, 51 A.3d 224, 230
n.8 (Pa. Super. 2012); Pa.R.A.P. 313(b). Our Supreme Court has emphasized
that:
the collateral order doctrine is a specialized, practical application
of the general rule that only final orders are appealable as of right.
Thus, Rule 313 must be interpreted narrowly, and the
-5-
J-A19003-21
requirements for an appealable collateral order remain stringent
in order to prevent undue corrosion of the final order rule. To that
end, each prong of the collateral order doctrine must be clearly
present before an order may be considered collateral.
Melvin v. Doe, 836 A.2d 42, 46-47 (Pa. 2003) (internal citation omitted).
The parties here agree that the appealed order is separable from and
collateral to the main cause of action in that it is capable or review without
considering the merits of the underlying case. We agree and we, thus, focus
on the second and third elements—importance and irreparable loss.
To determine whether an issue is sufficiently important to allow review
of an interlocutory order pursuant to the collateral order doctrine, a court
should “weigh the interests implicated in the case against the costs of
piecemeal litigation.” Ben v. Schwartz, 729 A.2d 547, 552 (Pa. 1999). “[I]t
is not sufficient that the issue be important to the particular parties. Rather it
must involve rights deeply rooted in public policy going beyond the particular
litigation at hand.” Id. (quoting Geniviva v. Frisk, 725 A.2d 1209, 1213-14
(Pa. 1999)). Often “[p]rivilege can be a right too important to be denied
review.” Jacksonian v. Temple Univ. Health Sys. Found., 862 A.2d 1275,
1280 (Pa. Super. 2004).
Irreparable loss results from postponement of review if no effective
means of review exist after the entry of final judgment. See Schwartz, 729
A.2d at 552.
Clark’s Deposition
With respect to the application of the second element of the collateral
order doctrine to the portion of the Order directing Clark to appear for a
-6-
J-A19003-21
deposition, Devereux does not assert that Appellees have sought any
privileged information; rather, it asserts that forestalling Appellees “attempt
to weaponize discovery as a litigation device” necessitates interlocutory
review. Answer to Motion to Quash, 3/15/21, at 8.1 Devereux baldly claims,
without citation to any authority, that “[p]rotecting parties from an
adversary’s abuse of the liberal discovery standard as a litigation tactic is an
important issue that extends well beyond this case and these parties.” 2 Id.
at 11. We are unpersuaded.
Our review indicated Devereux’s appeal from this portion of the
discovery Order does not implicate the rights beyond those of the parties
involved. That Mr. Clark wished to be protected from “annoyance,
embarrassment, oppression[,] and undue burden” because he allegedly did
not have any particularized, unique, or superior knowledge is not a compelling
____________________________________________
1 Appellees filed in this Court a Motion to Quash Devereux’s appeal as
interlocutory and Devereux filed an Answer to the Motion. We denied
Appellees’ Motion without prejudice to their right to again raise this issue in
their Brief. Appellees re-raised this jurisdictional issue in their Brief, but
Devereux did not address the issue and, instead, merely asserted that we
have jurisdiction over this appeal pursuant to Pa.R.A.P. 313. Accordingly, we
glean the basis for Devereux’s argument in support of jurisdiction exclusively
from its Answer to Appellees’ Motion to Quash.
2 In support of this claim, Devereux relies on, urges this Court to adopt, and
cites extensively to cases applying the “Apex Doctrine,” which Devereux
explains is “an analytical framework used by courts in assessing whether to
permit the depositions of individuals at the ‘apex’ of corporations and other
entities.” United States ex rel. Galmines v. Novartis Pharm. Corp., No.
CV 06-3213, 2015 WL 4973626, at *1 (E.D. Pa. Aug. 20, 2015). Pennsylvania
has not adopted the Apex Doctrine, and we decline to consider doing so here.
-7-
J-A19003-21
public policy interest necessitating interlocutory review. Thus, Devereux’s
argument—that the portion of the trial court’s Order compelling Mr. Clark to
appear for a deposition implicates an interest that goes beyond this particular
litigation—fails.3 We, therefore, quash as interlocutory Devereux’s appeal
from the portion of the Order directing Mr. Clark to appear for a deposition.
Document Production
The remaining portion of the appealed Order compels Devereux to
produce certain enumerated documents including: (1) documents relied upon
in preparing press releases or communicating with the press about issues
giving rise to the instant suit; (2) documents relating to the events alleged in
Appellees’ complaint; (3) documents pertaining to Devereux’s “Independent
Safety Audit;” and (4) Devereux’s policies, procedures, or protocols relating,
inter alia, to supervision of residents, employee screening, training, and
monitoring, room assignments and monitoring, and reporting criminal
incidents. Amended Notice of Deposition, 9/11/20, at 2. Devereux asserts
that this portion of the Order satisfies the second prong of the collateral order
doctrine because it “had the [e]ffect of requiring Mr. Clark to produce
confidential documents that are protected from disclosure by statute(s)
[including the Pennsylvania Child Protective Service Law, the Mental Health
____________________________________________
3 In light of our conclusion that this portion of the Order does not satisfy the
second element of the collateral order doctrine, we need not address whether
it satisfies the third element.
-8-
J-A19003-21
Procedures Act, and the Mental Health and Intellectual Disability Act of 1966]
and the attorney-client privilege.” Answer to Motion to Quash at 14.
We agree with Devereux that the portion of the trial court’s Order
directing it to produce documents arguably protected by various statutory
privileges and the attorney-client privilege implicates a right too important to
be denied interlocutory review.
This portion of the Order also satisfies the third element of the collateral
order doctrine because, once disclosed, privileged material loses its
confidentiality and the right to prevent its disclosure is irreparably lost. See
Shearer v. Hafer, 177 A.3d 850, 857-58 (Pa. 2018) (explaining that “orders
overruling claims of privilege and requiring disclosure are immediately
appealable under Pa.R.A.P. 313” because once “the bell has been rung, [it]
cannot be unrung by a later appeal.”) (citations omitted). We, thus, proceed
to consider Devereux’s challenge to the portion of the Order requiring it to
produce the documents listed in the subpoena duces tecum clause of the
Amended Notice of Deposition.
Devereux’s Claims
First, Devereux argues that the trial court erred by reversing its earlier
order in response to Appellees’ contested Motion for Reconsideration before
waiting the twenty-day response period required by the Pennsylvania Rules of
Civil Procedure and the Philadelphia County Local Rules and without permitting
Devereux an opportunity to respond to the Motion. Id. at 28. We agree.
Pennsylvania Rule of Civil Procedure 208.3 provides, in relevant part:
-9-
J-A19003-21
Rule 208.3. Alternative Procedures
(a) Except as otherwise provided by subdivision (b), the court
shall initially consider a motion without written responses or
briefs. For a motion governed by this subdivision, the court
may not enter an order that grants relief to the moving
party unless the motion is presented as uncontested or the
other parties to the proceeding are given an opportunity
for an argument.
[Note:] Rule 239.3(d) requires every court to promulgate
Local Rule 208.3(a) describing the local court procedure governing
motions under this rule.
***
(b) A court, by local rule, numbered Local Rule 208.3(b), may
impose requirements with respect to motions listed in the rule for
the filing of a response, a brief or both. Where a response is
required, any party opposing a motion governed by Local
Rule 208.3(b) shall file the response within twenty days
after service of the motion, unless the time for filing the
response is modified by court order or enlarged by local
rule.
***
[Note:] A response shall be filed by any party opposing a
motion governed by subdivision (b) even if there are no contested
issues of fact because the response is the opposing party’s method
of indicating its opposition.
Pa.R.C.P. 208.3 (emphasis added). Philadelphia Local Rule 208.3 provides, in
pertinent part:
Rule *208.3(a). Motions Initially Considered Without
Written Response or Briefs
***
(3) Motions for Reconsideration. Motions for Reconsideration
shall be forwarded to the appropriate judge immediately upon
filing, and the filing party must serve a copy of the motion as
provided in subsection (b)(3)(C). In appropriate cases, the
- 10 -
J-A19003-21
assigned judge may enter a preliminary order vacating the order
in question pending receipt of the response to the motion.
Phila. Civ .R. *208.3(a)(3).
Rule *208.3(b). Motions Considered After Response
Period. Briefs.
***
(2) Non-Discovery Motions.
***
(B) Control Number. Response Date. Other than as provided in
Phila.Civ.R. *208.3(a) and except for Summary Judgment Motions
(which have a thirty (30) day response period), all Motions have
a twenty (20) day response period. Upon filing, the Motion Clerk
shall enter on the Cover Sheet a unique Control Number which
must be used on all Responses, and shall enter the ‘Response
Date’ on or before which all Responses must be filed by any party.
Phila. Civ. R. *208.3(b)(2)(B).
This Court has previously vacated and remanded for further proceedings
where a trial court failed to comply with the requirements of Rule 208.3. See
Cove Centre, Inc. v. Westhafer Const., Inc., 965 A.2d 259, 264 (Pa.
Super. 2009) (vacating trial court’s order granting contested motion for
sanctions entered without providing an opportunity to respond, convening oral
argument, or holding an evidentiary hearing). See also In re Bridgeport
Fire Litigation, 5 A.3d 1250, 1259-60 (Pa. Super. 2010) (holding trial court’s
order granting motion for compensation of claims administrator denied
respondents opportunity to respond and object, where court granted motion
prior to expiration of 30-day response deadline set forth in Montgomery
County Local Rule 208.3(b)(2); remanding with instructions that court require
- 11 -
J-A19003-21
notice and opportunity to object as provided in relevant rules of court prior to
issuing order).
Instantly, Appellees filed a Motion for Reconsideration on December 1,
2020. Under state and local rule 208.3(b), Devereux had twenty days to
respond to Appellees’ Motion. See Pa.R.C.P. 208.3(b); Phila. Civ. R.
*208.3(b)(2)(B). Thus, Devereux’s Response was due on or before December
21, 2020. Prior to expiration of the twenty-day response period, however, the
court granted Appellees’ Motion for Reconsideration, denied Devereux’s
Motion for Protective Order, and directed Devereux to produce arguably
privileged documents. This was error. Because the trial court erred in
depriving Devereux of the opportunity to respond to Appellees’ Motion for
Reconsideration, we vacate the portion of the court’s December 9, 2020 Order
directing Devereux to produce documents and remand for further proceedings
on that issue.4
Appeal quashed in part and order vacated in part; case remanded for
further proceedings. Jurisdiction relinquished. Case stricken from argument
list.
____________________________________________
4 In light of our disposition, we need not address Devereux’s remaining issues
on appeal.
- 12 -
J-A19003-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2021
- 13 -