Ignelzi, P. v. Ogg, Cordes, Murphy and Ignelzi

J-A01038-17
2017 Pa. Super. 111
PHILIP A. IGNELZI, INDIVIDUALLY, : IN THE SUPERIOR COURT OF
PHILIP A. IGNELZI AND MARIANNE : PENNSYLVANIA
IGNELZI, HUSBAND AND WIFE :
:
v. :
:
OGG, CORDES, MURPHY AND IGNELZI, :
LLP; GARY J. OGG; SAMUEL J. :
CORDES; MICHAEL A. MURPHY, :
INDIVIDUALLY; MICHAEL A. MURPHY :
AND REBECCA MURPHY, HUSBAND :
AND WIFE; OGG, MURPHY, AND :
PERKOSKY, LLP; JOHN D. PERKOSKY; :
AND ESQUIRE REALTY ASSOCIATES :
:
APPEAL OF: GARY J. OGG, MICHAEL A. :
MURPHY AND REBECCA MURPHY, OGG, :
MURPHY AND PERKOSKY, LLP, AND :
JOHN D. PERKOSKY : No. 971 WDA 2016
Appeal from the Order Entered May 20, 2016,
in the Court of Common Pleas of Allegheny County,
Civil Division at No(s): GD 11-022449
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED APRIL 19, 2017
Gary J. Ogg, Michael A. Murphy, Rebecca Murphy, John D. Perkosky,
and Ogg, Murphy, and Perkosky, LLP (OMP) (collectively, Appellants) appeal
from the discovery order entered May 20, 2016, which granted in part and
denied in part their motion for protective order.1 After review, we quash this
appeal.
1
After recusal of the entire bench of the Allegheny County Court of Common
Pleas, Senior Judge Eugene E. Fike, II, was appointed to hear this case.
*Retired Senior Judge assigned to the Superior Court.
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This litigation arises from a dispute among Phillip A. Ignelzi, his former
law firm, Ogg, Cordes, Murphy, and Ignelzi, LLP (OCMI), and partners, Ogg,
Cordes, and Michael Murphy. In November of 2009, Ignelzi was elected as a
judge of the Court of Common Pleas of Allegheny County. Accordingly, he
could no longer be a partner of OCMI and the law firm began dissolution.
Ogg, Murphy, and an associate, Perkosky, formed a new law firm,
OMP. Cordes formed his own, separate law firm. The parties attempted to
negotiate a settlement as to what the former partners would pay Ignelzi, but
they were unable to reach an amicable resolution. Thus, on October 31,
2011, Ignelzi filed the instant lawsuit alleging, inter alia, breach of contract
and violations of the Uniform Partnership Act (UPA), 15 Pa.C.S. §§ 8301-
8365.2
As this Court pointed out previously, “[t]he heart of the parties’
dispute in this case is Ignelzi’s demand for his partnership share of any
contingent fee cases that conclude after the dissolution of OCMI.” Ignelzi v.
Ogg, Cordes, Murphy and Ignelzi, LLP, 78 A.3d 1111, 1114 (Pa. Super.
2013) (Ignelzi I).3 Ignelzi sought discovery and requested the following, in
relevant part.
2
This version of the UPA was repealed, effective February 21, 2017, and
replaced by 15 Pa.C.S. §§ 8411-8486.
3
This Court first considered this case after the trial court granted Ignelzi’s
March 29, 2012 petition filed pursuant to section 8332 of the UPA for access
to accounting information from both OCMI and OMP. This Court held that
“the trial court erred in entering [an] order [permitting access to ledgers,
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1. Client lists for all claims or cases that the partnership of
[OCMI], or any of its partners, had accepted, or had begun to
review for acceptance, as of December 31, 2009.
2. Ledgers, books, records and client cards for any claims
or cases that the partnership of [OCMI] or any of its partners,
had accepted or begun to review for acceptance, as of December
31, 2009.
3. Bookkeepers’ summaries for 2006 through 2009.
Ignelzi’s Brief at Exhibit A (Plaintiffs’ First Request for Production of
Documents at 6-7).4
In response to the discovery request, Appellants filed a motion for
protective order. In that motion, Appellants argued that based upon this
Court’s prior rulings, Ignelzi was not entitled to the aforementioned
information. Specifically, they argued that this Court’s “December 2014
[order] essentially sets up a date-certain valuation being the date [Ignelzi]
books, records, and client cards for cases accepted by OCMI or any partners
prior to December 31, 2009,] prior to litigation of the underlying facts
resolving the parameters of the pre-existing partnership agreement or
course of conduct between OCMI and prior departing law partners.” Ignelzi
I, 78 A.3d at 1115.
After that appeal, the trial court concluded that the partners did not
have an express agreement about how shares for contingent fee cases were
to be distributed in the event a partner left the firm. Thus, the trial court
limited Ignelzi’s claims accordingly, and Ignelzi’s claim for a share of these
cases was limited to his action under the UPA. See Order, 12/23/2014.
4
It does not appear that the First Request for Production of Documents is
contained in the certified record on appeal. “Our law is unequivocal that the
responsibility rests upon the appellant to ensure that the record certified on
appeal is complete in the sense that it contains all of the materials necessary
for the reviewing court to perform its duty.” Commonwealth v. Preston,
904 A.2d 1, 7 (Pa. Super. 2006).
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left OCMI.” Motion for Protective Order, 9/1/2015, at ¶ 18. Appellants went
on to argue that based on prior holdings of this Court,
the value of work performed by Judge Ignelzi had no
ascertainable value as of that date and discovery related to such
matters is not warranted as it is overly broad, unduly
burdensome, not likely to lead to discoverable material, violated
the law of the case and would compel OMP to violate the Rules of
Ethics. Further given the confidential client information at risk,
[Appellants] simply cannot turn over all files as [Ignelzi’s]
pending discovery requests demand.
Id. at ¶ 20.5
After argument, the trial court issued a ruling which granted in part
and denied in part Appellants’ motion for protective order. The order
provided:
It is ORDERED that the motion[ is] granted in part and
denied in part as follows:
1. The motion[ is] denied to the extent that, to the extent not
provided previously, Ogg, Murphy and Cordes shall produce to []
Ignelzi, the documents identified in paragraphs [1 and 3], within
30 days after the date this order is entered.
2. Having concluded that, because of the breadth and all-
encompassing nature of the request contained in paragraph 2 [],
the motion[ is] granted with respect to the documents requested
in paragraph 2 [].
3. To ensure confidentiality, Ignelzi shall redact the documents
to be produced pursuant to this order before being shared with
5
We are compelled to point out that our review of Ignelzi I does not reveal
any language by this Court that supports Appellants’ interpretation of that
opinion. In fact, the opinion goes out of its way to acknowledge that
“[l]awyers in private practice routinely become judges and payment of
compensation commonly remains outstanding after the former lawyer takes
the bench.” Ignelzi I, 78 A.3d at 1117. This Court went on to cite an Ethics
Opinion discussing how such a matter should be handled.
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counsel. Ignelzi shall assign a number to each client and
substitute the number in place of the client’s name, with the
number to be used in place of the client’s name in further
proceedings. All documents and information produced or
disclosed shall remain confidential, shall be used only as
necessary in this litigation, will not be filed of record without
prior court approval, and will be disclosed only to Ignelzi,
Cordes, Murphy and their counsel, and to no other person
without prior court approval.
4. The court is of the opinion that this order involves a
controlling question of law as to which there is a substantial
ground for difference of opinion and that an immediate appeal
from this order will materially advance the ultimate termination
of the matter.
Order, 5/20/2016 (unnecessary capitalization omitted). Moreover, the trial
court pointed out that with respect to the information in paragraph 2 of the
discovery request, it is denied “without prejudice to future discovery that
appropriately narrows the inquiry to coincide with the parameters of
permissible discovery.” Trial Court Opinion, 5/20/2016, at 15.
On June 22, 2016, Appellants filed a notice of appeal. 6 Before we
reach the substantive issues in this appeal, we consider the appealability of
6
Appellants’ appeal was due to be filed in 30 days from the entry of the
order, or no later than June 20, 2016. See Pa.R.A.P. 903(a). Therefore, this
appeal, filed on June 22, 2016, appears to be untimely. However,
Rule of Appellate Procedure 108(b) designates the date of entry
of an order as “the day on which the clerk makes the notation in
the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b) (emphasis
added). Our Supreme Court has held that “an order is not
appealable until it is entered on the docket with the required
notation that appropriate notice has been given.” Frazier
v. City of Philadelphia, [] 735 A.2d 113, 115 ([Pa.] 1999)
(emphasis added). Where there is no indication on the docket
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the May 20, 2016 order. See In re Miscin, 885 A.2d 558, 561 (Pa. Super.
2005) (“We may examine the issue of appealability sua sponte because it
affects the Court’s jurisdiction over the case.”).7
This Court has jurisdiction over final orders. The definition of a final
order is provided in Rule 341 of the Pennsylvania Rules of Appellate
Procedure. “Rule 341 is fundamental to the exercise of jurisdiction by this
court.” Prelude, Inc. v. Jorcyk, 695 A.2d 422, 424 (Pa. Super. 1997) (en
banc). Rule 341 provides, in relevant part, as follows.
(b) Definition of final order.--A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) RESCINDED
(3) is entered as a final order pursuant to paragraph (c)
of this rule.
that Rule 236(b) notice has been given, then the appeal period
has not started to run. Id. [] at 115. Our Supreme Court has
expressly held that this is a bright-line rule, to be interpreted
strictly. That the appealing party did indeed receive notice does
not alter the rule that the 30–day appeal period is not triggered
until the clerk makes a notation on the docket that notice of
entry of the order has been given.
In re L.M., 923 A.2d 505, 508–09 (Pa. Super. 2007) (emphasis in original).
Here, there is no notation on the docket that the Rule 236(b) notice was
ever given. Accordingly, the appeal period never started to run, and
therefore this appeal was not filed untimely. See also Vertical Res., Inc. v.
Bramlett, 837 A.2d 1193, 1199 (Pa. Super. 2003) (holding that even where
Rule 236(b) notice was never sent, “in the interest of judicial economy, we
will regard as done what should have been done and consider the notice as
having been mailed”).
7
Moreover, Ignelzi has raised the issue of the appealability of this order.
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(c) Determination of finality.--When more than one claim
for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim or when multiple
parties are involved, the trial court or other government unit
may enter a final order as to one or more but fewer than all of
the claims and parties only upon an express determination that
an immediate appeal would facilitate resolution of the entire
case. Such an order becomes appealable when entered. In the
absence of such a determination and entry of a final order, any
order or other form of decision that adjudicates fewer than all
the claims and parties shall not constitute a final order.
Pa.R.A.P. 341. See also 42 Pa.C.S. § 742 (“The Superior Court shall have
exclusive appellate jurisdiction of all appeals from final orders of the courts
of common pleas….”).
Instantly, the trial court added language in paragraph 4 of its order
that is consistent with Pa.R.A.P. 341(c). However, this Court has held that
“Rule 341(c) certification, under the clear language of the rule, is available
only to ‘final’ orders disposing of one but fewer than all parties or causes of
action.” F.D.P. v. Ferrara, 804 A.2d 1221, 1226 (Pa. Super. 2002).
“[C]ertification under Rule 341(c) was designed to allow for an immediate
appeal of a ‘final’ order relating to [fewer] than all parties or [fewer] than all
claims. In other words, it applies to orders dismissing parties and dismissing
claims.” Id. at 1226-27.
The discovery order in this case, which merely granted in part and
denied in part Appellants’ motion for a protective order, dismissed neither a
party nor a claim. Accordingly, despite the trial court’s Rule 341(c)
certification, this order is not appealable under the clear language of the
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rule. Thus, we do not have jurisdiction to entertain this appeal pursuant to
Pa.R.A.P. 341.
We now consider other potential bases for this Court’s jurisdiction.8
First, we examine our jurisdiction pursuant to Pa.R.A.P. 313, which governs
collateral orders. In doing so, we point out that “This Court’s review … is
plenary, since determining the appropriate boundaries of collateral order
jurisdiction entails resolution of a question of law.” Pridgen v. Parker
Hannifin Corp., 588 Pa. 405, 419 (2006).
“A collateral order is an order separable from and collateral
to the main cause of action where the right involved is too
important to be denied review and 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(b). “[T]he
collateral order doctrine is a specialized, practical application of
the general rule that only final orders are appealable as of right.”
Melvin v. Doe, [] 836 A.2d 42, 46–47 ([Pa.] 2003). “Thus, Rule
313 must be interpreted narrowly, and the requirements for an
appealable collateral order remain stringent in order to prevent
undue corrosion of the final order rule.” Id. at 47. “To that end,
each prong of the collateral order doctrine must be clearly
present before an order may be considered collateral.” Id.
Meyer-Chatfield Corp. v. Bank Fin. Servs. Grp., 143 A.3d 930, 936 (Pa.
Super. 2016) (some citations omitted). “[W]here an order satisfies Rule
313’s three-pronged test, we may exercise appellate jurisdiction where the
order is not final. If the test is not met, however, and in the absence of
another exception to the final order rule, we have no jurisdiction to consider
8
See Appellants’ Brief at 1 (citing Pa.R.A.P. 313 (collateral orders) and
Pa.R.A.P. 1311 (interlocutory appeals by permission)).
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an appeal of such an order.” Rae v. Pennsylvania Funeral Directors
Ass’n, 977 A.2d 1121, 1125 (Pa. 2009).
“Generally, discovery orders are deemed interlocutory and not
immediately appealable, because they do not dispose of the litigation. On
the other hand, discovery orders requiring disclosure of privileged materials
generally are appealable under Rule 313 where the issue of privilege is
separable from the underlying issue.” Meyer-Chatfield, 143 A.3d at
936 (emphasis added).
As to separability, [the Supreme] Court has adopted a
practical analysis recognizing that some potential
interrelationship between merits issues and the question sought
to be raised in the interlocutory appeal is tolerable. [] [See]
Johnson v. Jones, 515 U.S. [304,] 314 [(1995)] [] (explaining
that a claim is sufficiently separate from the underlying issues
for purposes of collateral order review if it “is conceptually
distinct from the merits of plaintiff’s claim,” that is, where, even
if “practically intertwined with the merits, [it] nonetheless raises
a question that is significantly different from the questions
underlying plaintiff’s claim on the merits” (citations omitted)).
Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 433 (Pa. 2006). We
have held that “[a]n order is not separable if the matter being reviewed has
the potential to resolve an issue in the case.” Jacksonian v. Temple Univ.
Health Sys. Found., 862 A.2d 1275, 1279 (Pa. Super. 2004).
Instantly, Appellants argue that “the dispositive question [in this
appeal] is whether the contents of confidential, privileged legal files in which
the clients of [OMP] and or [Cordes] have a proprietary interest should be
disclosed, without their consent or even notice.” Appellants’ Reply Brief at 3
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(emphasis removed). According to Appellants, “if the [o]rder is not
reversed, [Ignelzi] will receive unfettered access to files of hundreds of
[Appellants’] clients, the overwhelming majority of whom [Ignelzi] has never
had any involvement.”9 Id. at 4.
In other words, Appellants disagree with what they see as the
underlying premise of the trial court’s order, that Ignelzi may eventually be
entitled to a recovery on contingent fee cases that were not resolved prior to
Ignelzi’s departure. In fact, Appellants devote the majority of their brief on
appeal to arguing why Ignelzi is not entitled to a recovery in this case, not
arguing why Ignelzi should not be entitled to review portions of confidential
client files.
Appellants argue that “an interest in a contingent matter must [be]
calculated on a specific date.” Appellants’ Brief at 19. Appellants suggest
that based on this interpretation of the law, if a contingent fee matter had
not been resolved prior to Ignelzi’s departure in December 2009, its value to
him was zero and has no effect on a partnership valuation. Additionally,
Appellants argue that as a matter of public policy, a partner of a law firm
who becomes a judge should not be entitled to collect a partnership interest
9
It should be noted that Appellants have not even been ordered to turn over
these files. See Trial Court Opinion, 5/20/2016, at 15. However, the trial
court left the door open to Appellants turning over at least some portions of
these files if Ignelzi “appropriately narrows the inquiry.” Id.
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from contingent matters that were not resolved prior to his departure. Id. at
40-46.
Our conclusion with respect to any or all of the aforementioned issues
has the potential to resolve the primary issue in the case, whether Ignelzi is
entitled to “his partnership share of any contingent fee cases that conclude
after the dissolution of OCMI.” See Ignelzi I, 78 A.3d at 1114. If we were
to determine that the contingency fee cases that were not resolved had no
value in December of 2009, then Ignelzi would not be entitled to any money
and the case would end. In addition, if we were to determine that a sitting
judge is not entitled to collect money from his or her former law firm, again,
Appellants could not be ordered to pay Ignelzi any amount, and the case
would end. Because Appellants are trying to litigate these issues through an
appeal from a discovery order, we hold that this order does not satisfy the
separability prong of the collateral order doctrine and we lack jurisdiction to
entertain this appeal.10
10
Appellants assert several additional bases for why Ignelzi is not entitled
to this information, and eventually a recovery in this matter. Appellants’
Brief at 23-39. First, Appellants invoke several Rules of Professional
Conduct: Pa.R.P.C. 5.4 (regarding sharing fees with a nonlawyer), 1.5
(regarding lawyers dividing fees with other lawyers), and 1.6 (regarding
confidentiality). However, “the Supreme Court has held that the Rules of
Professional Conduct do not have the effect of substantive law but, instead,
are to be employed in disciplinary proceedings.” In re Adoption of M.M.H.,
981 A.2d 261, 272 (Pa. Super. 2009). “They do not govern or affect judicial
application of either the attorney-client or work product privilege.” In re
Estate of Wood, 818 A.2d 568, 573 (Pa. Super. 2003).
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Even if we were to conclude that this order is separable, this matter
would still not be ripe for our review. In T.M. v. Elwyn, 950 A.2d 1050 (Pa.
Super. 2008), this Court set forth the requirements for a party asserting the
attorney-client privilege as a basis to withhold discovery. In that case, the
plaintiff was a student at a school for students with mental health and
behavioral issues. The plaintiff filed a lawsuit against the school, asserting
that a school counselor sexually assaulted her. The plaintiff filed requests
for admissions and production of documents for information about other
students who had sued the school. The school objected on the basis that
the information and documents requested were privileged. After motions
practice, the trial court ordered that the school must fully answer, without
objection, the plaintiff’s requests. The school filed a notice of appeal.
On appeal, the school argued that production of this information is “in
contravention of evidentiary privileges, including the attorney-client
privilege, and in violation of various statutes.” Id. at 1058. The plaintiff
In addition, Appellants reference Code of Judicial Conduct: 5(C)
(Financial Activities), 5(D) (Fiduciary Activities), and 5(F) (Practice of Law).
Appellants’ Brief at 23-24. We note that Pennsylvania has only Canons 1
through 4. It appears that Appellants are referring to Canons 3.11 (Financial
Activities), 3.8 (Fiduciary Activities), and 3.10 (Practice of Law),
respectively. In any event, the Code of Judicial Conduct “is not designed or
intended as a basis for civil or criminal liability. Neither is it intended to be
the basis for litigants to seek collateral remedies against each other or to
obtain tactical advantages in proceedings before a court.” Pa. Code of
Judicial Conduct, Preamble ¶ 7. Based on the foregoing, we fail to see how
either set of rules governs our resolution in this matter.
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responded that production of this information would not violate such
privileges.
In evaluating whether there was a potential attorney-client privilege
violation, this Court held that “it is impossible for this Court to determine
whether any privilege applies when [the school] has failed to identify or
describe any such documents that may be protected.” Id. at 1062. This
Court went on to state the following.
In the instant case, we do not … have a situation where
there is a privilege log, let alone any indication or analysis on the
part of the trial court with regard to documents that [the school]
deemed protected by the attorney-client privilege and work
product doctrine. We remind [the school] that, as the party
invoking these privileges, it must initially “set forth facts showing
that the privilege has been properly invoked; then the burden
shifts to the party seeking disclosure to set forth facts showing
that disclosure will not violate the attorney-client privilege, e.g.,
because the privilege has been waived or because some
exception applies.” Nationwide Mut. Ins. Co. v. Fleming, 924
A.2d 1259, 1266 (Pa. Super. 2007) (citations omitted).
Accordingly, “[i]f the party asserting the privilege does not
produce sufficient facts to show that the privilege was properly
invoked, then the burden never shifts to the other party, and the
communication is not protected under attorney-client privilege.”
Id. at 1267. If, upon remand, [the school] is able to identify
certain materials encompassed in the discovery request that are
subject to the attorney-client privilege or work product doctrine,
then the trial court will be able to assess whether those
materials are discoverable. We therefore remand, noting that the
court may conduct in camera review of documents identified by
[the school] to be subject to a privilege, to better analyze the
privilege issues, as needed.
T.M. v. Elwyn, Inc., 950 A.2d 1050, 1063 (Pa. Super. 2008). See also
Gocial v. Independence Blue Cross, 827 A.2d 1216, 1223 (Pa. Super.
2003) (holding that where there is a privilege log, it is the trial court’s
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responsibility to “rule on the relevance of each item … or explain why the
privileges raised were inapplicable”).
Applying this law to the instant case, it was Appellants’ burden to
assert facts establishing the applicability of attorney-client privilege. In
addition, where the requests encompass more than one document, it was up
to Appellants to create a privilege log to permit the trial court to rule on
discoverability in the first instance. Appellants have not asserted any such
facts in meeting their burden, nor have they produced a privilege log.
Accordingly, we hold that Appellants have not met the jurisdictional
requirements for reviewability under the collateral order doctrine.
Having established Appellants present no issues on appeal reviewable
under the collateral order doctrine, we quash this appeal.11
Appeal quashed.
11
We recognize that Appellants also filed a petition for permission to appeal
pursuant to Pa.R.A.P. 1311, which was docketed in this Court at 69 WDM
2016. On August 10, 2016, this Court, in a per curiam order, dismissed the
petition as moot. However, even if we had considered whether Appellants
should have been granted permission to appeal from the order, we would
have denied it for the same reasons outlined supra.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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