Worth, S. v. Worth, M.

J-A27016-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEPHEN WORTH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK WORTH :
:
Appellant : No. 1175 EDA 2021
Appeal from the Order Entered May 7, 2021
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2017-05747
BEFORE: PANELLA, P.J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 4, 2022
Mark Worth appeals from the order entered in the Bucks County Court
of Common Pleas, denying his motion to overrule the designation of certain
documents as Attorneys’ Eyes Only (“AEO”). As will be discussed below, the
AEO documents pertain to an underlying civil suit brought by the appellee,
Stephen Worth (Mark’s brother) against Mark. On appeal, Mark challenges
the court’s refusal to remove the AEO designation on the documents. Because
the May 7, 2021, order is not an appealable, collateral order, we must quash
Mark’s appeal as interlocutory.
Stephen and Mark Worth were business partners since the 1970s and
jointly owned several business, including Worth & Co., Inc., a plumbing and
mechanical contracting business. See Trial Ct. Op., 7/29/2021, at 1. In 2016,
Mark filed a civil action against Stephen, alleging breach of fidicuary duty and
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violations of the Racketeer Influenced and Corruption Organizations Act, see
18 U.S.C. § 1961 et seq. The two reached a settlement agreement in June
2017, in which Stephen purchased Mark’s ownership in their shared
businesses and real property. See id.In August 2017, Stephen brought the instant action against Mark,
claiming tortious interference. He alleged Mark was ambushing, interrogating,
and harassing tenants who leased Stephen’s property and making false
statements about his business. He sought to enjoin Mark from communicating
with his tenants and customers. See id. at 3. Mark filed counterclaims of
abuse of process, fraud and negligent misrepresentation, arguing Stephen had
withheld information during the negotiations and execution of the June 2017
settlement, but he later discontinued all counterclaims.
Thereafter, in June 2018, the parties entered into a Stipulated Protective
Order (SPO) and Confidentiality Agreement. See id. at 3-4. “Included in the
AEO designation are the 2017 Broker’s Opinion of Value for 5161 Applebutter
Road in Pipersville, Pennsylvania (‘2017 Real Estate Appraisals’), the
documents at issue in the instant appeal.” Id. at 4.
In May 2019, Mark initiated a malpractice suit against the attorney and
law firm that represented him during the negotiations pertaining to the June
2017 settlement. See id.During the time, Mark subsequently changed his mind about designating
the appraisals as AEO. He ultimately filed a Revised Motion to Overrule
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Plaintiff’s Designation of 2017 Appraisals as Attorney’s Eyes Only in December
2020. Mark again claimed he needed personal access to the appraisals to
demonstrate damages in his malpractice action. See id. at 2. The trial court
denied the revised motion on May 7, 2021. This appeal followed.
Mark presents the following question on appeal:
Did the trial court abuse its discretion by denying Mark Worth’s
Motion to Overrule Plaintiff’s Designations of 2017 Appraisals as
Attorney’s Eyes Only and finding that Stephen Worth met his
burden of demonstrating that [the] real estate appraisals at issue
reflect “highly sensitive personal information” or “highly sensitive
business confidential information,” and that they reflect
information that if provided to Mark Worth would “place the
designating party at a competitive disadvantage and/or cause
harm to the designating party” as required by the Protective Order
pursuant to which they were designated?
Appellant’s Brief at 2.
Before we may address the substantive claim, we first must determine
whether the order on appeal is a collateral order, appealable as of right.1
Under Pa.R.A.P. 313, 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). See also Shearer v. Hafer, 177 A.3d 850, 856 (Pa. 2018).
Rule 313 is to be construed narrowly. See Rae v. Pennsylvania Funeral
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1 No one disputes that the order at issue was not a final order, an interlocutory
appeal as of right, or an interlocutory order appealed by permission. See In
re Estate of Moskowitz, 115 A.3d 372, 388 (Pa. Super. 2015).
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Directors Ass'n, 977 A.2d 1121, 1126 (Pa. 2009). The rule requires that all
three elements “be satisfied to permit review of an interlocutory appeal under
the collateral order rule.” Jacksonian v. Temple Univ. Health Sys. Found.,
862 A.2d 1275, 1279 (Pa. Super. 2004) (citation omitted). Moreover,
“[w]hether an order is appealable under Pa.R.A.P. 313 is a question of law.
As such, our standard of review is de novo and our scope of review is plenary.”
Id. at 1126 n.8.
Mark argues that the question of removing the AEO designation from
the appraisals is separable from Stephen’s tortious interference action, as
Mark dismissed his counterclaims against Stephen for which the appraisals
were produced. See Appellant’s Brief at 16-17. Mark also argues he has a
right to access the appraisals of the properties of which he was a 50% owner,
and that his inability to access the appraisals interferes with his right to make
informed decisions regarding his malpractice action, such as settlement. See
id. at 17-21. Finally, Mark posits that if he is unable to appeal the order until
the conclusion of this case, it will become moot if the malpractice action is
finalized. See id. at 21-22.
Here, the trial court opined that its May 7, 2021, order did not satisfy
all three prongs of the collateral order doctrine. See Trial Ct. Op. at 7-9. The
court agreed with Mark that the order met the first prong because it was
“certainly separable from and collateral to the main cause of action of tortious
interference.” Id. at 7. Nevertheless, the court found the remaining two
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prongs were not met based on the following: (1) “nothing about [Mark]’s wish
to personally view [the] 2017 Real Estate Appraisals implicates issues deeply
rooted in public policy[;]” and (2) Mark “will not be denied a meaningful
remedy if this AEO designation remains until the completion of litigation [as
the] AEO designation does not impede [Mark]’s ability to move forward in the
[m]alpractice [a]ction.” Id. at 8.
We agree with the court that the order does not meet the requirements
of a collateral order, and Mark’s argument does not persuade us otherwise.
The SPO, which designates the 2017 Real Estate Appraisals as AEO, is a
private contract between Mark and Stephen. Stephen admits that it does not
prevent Mark from compelling access to the appraisals via discovery in the
malpractice action. See Appellee’s Brief at 24-25.2 Mark, therefore, has not
demonstrated the order has any effect on this case such that it would require
immediate review.
Further, Mark has not established that if he were unable to obtain review
of the order denying his request to access the appraisals until after the instant
case is complete, it would have any effect other than to delay the malpractice
case. Indeed, Mark points out that the malpractice action is already currently
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2 While the trial court in the instant case commented in its Rule 1925(a)
opinion that the appraisals may only be used in the malpractice action if in
compliance with the SPO, see Trial Ct. Op. at 8, this is clearly dicta as the
court has not entered an order so stating that would be controlling in the
malpractice action.
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postponed. See Appellant’s Reply Brief at 10. As such, Mark has not explained
his basis for that action, and the relevance of the appraisals or what relation
they have to the damages he is seeking.
Since we must construe the collateral order doctrine narrowly, and as
Mark has failed to prove that a delayed review of his issue will forever thwart
an important right, we conclude the order under appeal is not appealable as
a collateral order, and therefore, interlocutory. Accordingly, we quash the
appeal.3
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2022
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3 In his brief, Mark also raises the substantive argument that the court abused
its discretion in finding that Stephen met his burden of establishing that the
2017 Real Estate Appraisals should be designated as AEO. See Appellant’s
Brief at 23-33. Based on our disposition as discussed above, we need not
address this claim further.
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