Adams, B. v. Toll Brothers, Inc.

J-A16018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRETT ADAMS, TAMRA ADAMS, JILL : IN THE SUPERIOR COURT OF
O’DONNELL, MATTHEW O’DONNELL, : PENNSYLVANIA
JASON TEPFENHARDT, JESSICA :
TEPFENHARDT, JAMES WIEGERS, :
ANN MARIE WIEGERS, BRIAN :
BENTRIM, JEFF CAMPAGNA, :
ELIZABETH CAMPAGNA, CATHERINE :
BENTRIM, JAMES COY AND DENISE :
COY : No. 1451 EDA 2021
:
:
v. :
:
:
TOLL BROTHERS, INC, TOLL PA, L.P., :
TOLL PA GP CORP, TOLL BROS., :
INC., TOLL ARCHITECTURE, INC., :
TOLL ARCHITECTURE I, P.A. :
:
:
v. :
:
:
ANDERSEN WINDOWS, INC., :
THOMAS E. MANION T/A MANION :
CONTRACTORS AND/OR THOMAS E. :
MANION, MICHAEL ANTOLINO :
CONSTRUCTION, INC., RSB :
CONSTRUCTION CO., MACK :
DONOHOE CONTRACTORS, INC., ELK :
CONSTRUCTION, PETR JACH T/A :
BRICK FRONTS, L.L.C., EXTERIOR :
OPTIONS, INC., :
:
:
APPEAL OF: TOLL BROTHERS, INC., :
TOLL BROS., INC., TOLL PA, L.P. :
AND TOLL PA GP CORP. :
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 170101225
J-A16018-22
JAMES COOKE AND TRACY COOKE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOLL BROTHERS, INC, TOLL PA, VI :
L.P., TOLL PA GP CORP, TOLL BROS., :
INC., TOLL ARCHITECTURE, INC., : No. 1453 EDA 2021
TOLL ARCHITECTURE I, P.A. :
:
:
v. :
:
:
ANDERSEN WINDOWS, INC., NEW :
MILLENNIUM CONTRACTING CORP., :
MACK DONOHOE CONTRACTORS, :
INC., MAR JOHN MASONRY, INC., :
CONNOLLY STUCCO AND :
PLASTERING :
:
:
APPEAL OF: TOLL BROTHERS, INC., :
TOLL BROS., INC., TOLL PA, VI, L.P. :
AND TOLL PA GP CORP. :
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 170903045
JAMES COY AND DENISE COY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOLL BROTHERS, INC, TOLL PA, L.P., :
TOLL PA GP CORP, TOLL BROS., :
INC., TOLL ARCHITECTURE, INC., : No. 1454 EDA 2021
TOLL ARCHITECTURE I, P.A. :
:
:
v. :
:
-2-
J-A16018-22
:
ANDERSEN WINDOWS, INC., :
MICHAEL ANTOLINO :
CONSTRUCTION, INC., RSB :
CONSTRUCTION, EXTERIOR :
OPTIONS, INC D/B/A EXTERIOR :
WALL, INC., FRANK BADOLATO, :
AQUARIUS SIDING :
:
:
APPEAL OF: TOLL BROTHERS, INC., :
TOLL BROS., INC., TOLL PA, L.P. :
AND TOLL PA GP CORP.
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 170901196
THOMAS DEANGELO AND CAGLAYAN : IN THE SUPERIOR COURT OF
DEANGELO : PENNSYLVANIA
:
:
v. :
:
:
TOLL BROTHERS, INC, TOLL PA, II, :
L.P., TOLL PA GP CORP, TOLL BROS., : No. 1455 EDA 2021
INC., TOLL ARCHITECTURE, INC., :
TOLL ARCHITECTURE I, P.A. :
:
:
v. :
:
:
ANDERSEN WINDOWS, INC., MS :
BUILDERS, INC., M A CARDY :
CONSTRUCTION, INC., DOMINIC C. :
DEFRANGESCO, MACK DONOHOE :
CONTRACTORS, INC. :
:
:
APPEAL OF: TOLL BROTHERS, INC., :
TOLL BROS., INC., TOLL PA II, L.P. :
AND TOLL PA GP CORP. :
-3-
J-A16018-22
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 170901003
TODD ELLIOTT AND JUDITH ELLIOTT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOLL BROTHERS, INC, TOLL PA, II, :
L.P., TOLL PA GP CORP, TOLL BROS., :
INC., TOLL ARCHITECTURE, INC., : No. 1456 EDA 2021
TOLL ARCHITECTURE I, P.A. :
:
:
v. :
:
:
ANDERSEN WINDOWS, INC., MACK :
DONOHOE CONTRACTORS, INC., :
M.A. CARDY CONSTRUCTION, INC. :
:
:
APPEAL OF: TOLL BROTHERS, INC., :
TOLL BROS., INC., TOLL PA II, L.P. :
AND TOLL PA GP CORP. :
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 170901907
BENJAMIN LACSON AND EVELYN : IN THE SUPERIOR COURT OF
LACSON : PENNSYLVANIA
:
:
v. :
:
:
TOLL BROTHERS, INC, TOLL PA, L.P., :
TOLL PA GP CORP, TOLL BROS., : No. 1457 EDA 2021
INC., TOLL ARCHITECTURE, INC., :
TOLL ARCHITECTURE I, P.A. :
:
-4-
J-A16018-22
:
v. :
:
:
ANDERSEN WINDOWS, INC., :
THOMAS E. MANION T/A MANION :
CONTRACTORS AND/OR THOMAS E. :
MANION A/K/A MANION, RSB :
CONSTRUCTION CO., EXTERIOR :
WALLS, INC., MACK DONOHOE :
CONTRACTORS INC., ELK :
CONSTRUCTION, INC. :
:
:
APPEAL OF: TOLL BROTHERS, INC., :
TOLL BROS., INC., TOLL PA, L.P. :
AND TOLL PA GP CORP. :
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 171003576
MICHAEL MILEY AND JENNIFER : IN THE SUPERIOR COURT OF
MILEY : PENNSYLVANIA
:
:
v. :
:
:
TOLL BROTHERS, INC, TOLL PA II, :
L.P., TOLL PA GP CORP, TOLL BROS., : No. 1458 EDA 2021
INC., TOLL ARCHITECTURE, INC., :
TOLL ARCHITECTURE I, P.A. :
:
:
v. :
:
:
ANDERSEN WINDOWS, INC., NEW :
MILLENNIUM CONTRACTORS, MACK :
DONOHOE CONTRACTORS, INC. :
:
:
:
:
-5-
J-A16018-22
APPEAL OF: TOLL BROTHERS, INC., :
TOLL BROS., INC., TOLL PA II, L.P.
AND TOLL PA GP CORP.
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 170901824
FURRUKH MUNAWAR AND AAIYSHA : IN THE SUPERIOR COURT OF
MUNAWAR : PENNSYLVANIA
:
:
v. :
:
:
TOLL BROTHERS, INC, TOLL PA II, :
L.P., TOLL PA GP CORP, TOLL BROS., : No. 1459 EDA 2021
INC., TOLL ARCHITECTURE, INC., :
TOLL ARCHITECTURE I, P.A. :
:
:
v. :
:
:
ANDERSEN WINDOWS, INC., MACK- :
DONOHOE CONTRACTORS, INC., :
MILLENNIUM CONTRACTING :
CORPORATION :
:
:
APPEAL OF: TOLL BROTHERS, INC., :
TOLL BROS., INC., TOLL PA II, L.P. :
AND TOLL PA GP CORP. :
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 171003571
DANIEL PORTER AND CAROLYN : IN THE SUPERIOR COURT OF
PORTER : PENNSYLVANIA
:
:
v. :
:
:
-6-
J-A16018-22
TOLL BROTHERS, INC, TOLL PA II, :
L.P., TOLL PA GP CORP, TOLL BROS., : No. 1460 EDA 2021
INC., TOLL ARCHITECTURE, INC., :
TOLL ARCHITECTURE I, P.A. :
:
:
v. :
:
:
ANDERSEN WINDOWS, INC., :
DOMINIC C. DEFRANGESCO, MACK :
DONOHOE CONTRACTORS, INC. :
:
:
APPEAL OF: TOLL BROTHERS, INC., :
TOLL BROS., INC., TOLL PA II, L.P. :
AND TOLL PA GP CORP. :
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 170901002
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED JULY 28, 2022
In these consolidated appeals, Toll Brothers, Inc., Toll Bros., Inc., Toll
Pa II L.P., and Toll Pa Gp Corp. (collectively, Appellant) appeal from the July
15, 2021, discovery order entered in the Philadelphia Court of Common Pleas,
directing Appellant to comply with two prior orders to produce spreadsheets.
These spreadsheets were created by Appellant’s operations division and list
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* Retired Senior Judge assigned to the Superior Court.
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other homeowners’ claims of water infiltration.1 Appellant argues: (1) the trial
court erred in applying the coordinate jurisdiction rule2 and concluding it was
bound to follow the two prior orders; and (2) the trial court erred in finding
the spreadsheets are not protected by the attorney-client privilege and the
attorney work product doctrine. We agree with the trial court that the
coordinate jurisdiction rule precluded re-litigation of the same issues, and
conclude Appellant did not establish the applicability of the attorney-client
privilege or work product doctrine. Accordingly, we affirm.
I. Appellate Jurisdiction
Preliminarily, we summarize that on August 3, 2021, this Court issued
a per curiam rule on Appellant to show cause why the spreadsheets were
____________________________________________
1Andersen Windows, Inc., one of the co-defendants, has advised this Court
by letter that it will not file a brief.
We also note almost all of these plaintiffs/appellees were parties to a
prior appeal before this Court, at Porter v. Toll Bros., 217 A.3d 337 (Pa.
Super. 2019), appeal denied, 229 A.3d 909 (Pa. 2020). In that matter,
Appellant invoked mandatory arbitration-clauses in warranties it had extended
to the original purchasers of the homes. The trial court found the
plaintiffs/appellees, none of whom were original purchasers, were not bound
by the warranties and thus denied Appellant’s petitions to compel arbitration.
Appellant appealed to this Court, which affirmed in August of 2019, and its
petition for allowance of appeal was denied by our Supreme Court in April of
2020.
2 While the trial court’s opinion refers to the “law of the case doctrine,” its
discussion goes to a subset of that doctrine, the coordinate jurisdiction rule.
See Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (“law of the case”
doctrine encompasses coordinate jurisdiction rule) (discussed infra).
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privileged, and thus why the trial court’s discovery order was an appealable
collateral order. See Pa.R.A.P. 313(a)-(b) (appeal may be taken as of right
from a collateral order, which 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”); Shearer v.
Hafer, 177 A.3d 850, 855 (Pa. 2018) (“[T]he question of whether the
collateral order doctrine has been met is jurisdictional in nature. Therefore,
we must independently consider whether the collateral order doctrine has
been satisfied.”); Berkeyheiser v. A Plus Investigations, Inc., 936 A.2d
1117, 1123-24 (Pa. Super. 2007) (“Pennsylvania courts have held that
discovery orders involving potentially confidential and privileged materials are
immediately appealable as collateral to the principal action.”).
Appellant responded that it had asserted the attorney-client privilege
and work product protection over the spreadsheets, which “are derived from
a database that is created and maintained by [its] legal department.”
Appellant’s Answer to Order to Show Cause, 8/13/21, at 1. This Court
discharged the rule to show cause, but advised the parties the merits may
panel revisit this issue.
As Appellant has invoked the privilege and work product doctrine — the
merits of which we will review in this appeal — we conclude the trial court’s
discovery order is collateral to the principal action and immediately
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appealable. See Pa.R.A.P. 313(b); Berkeyheiser, 936 A.2d at 1124 (“This
Court has . . . recognized that an appellant’s colorable claim of attorney-client
and attorney work-product privilege can establish the propriety of immediate
appellate review.”).
II. Judge Robins New’s January 14 and February 25, 2021, Orders
Appellant is a builder and seller of residential homes. Appellees have
filed lawsuits against it, alleging defective construction of homes and,
specifically, water infiltration issues. In September of 2020, Appellees served
Appellant with a “First Set of Requests for Production of Documents” (First
Requests) as well as a “First Set of Interrogatories” (First Interrogatories).3
The latter did not include the term “spreadsheet,” but requested “all
documents” relating to whether Appellant was “aware of any water
penetration issues” in other homes in the same developments as Appellees’
homes or in other homes of the same models.4 Appellant objected to every
request, citing, in part, the attorney-client privilege and attorney work product
doctrine.
On December 9, 2020, Appellees filed a motion to overrule Appellant’s
objections to discovery. On January 14, 2021, the Honorable Shelley Robins
____________________________________________
3 See Appellees’ Motion to Overrule Objections to Discovery & Depositions and
to Compel More Specific Responses to Discovery Requests, 12/9/20, at 6.
4 See Appellees’ First Interrogatories, 9/9/20, at 9 (unpaginated).
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New ordered, in pertinent part, Appellant to produce “spreadsheets used to
track water intrusion claims and prepared by Mike Klein and Tony Geonotti or
others in Operations Division.” Order, 1/14/21, at 2. On January 29th,
Appellant filed a motion for reconsideration, repeatedly arguing Appellees
never requested such spreadsheets, and furthermore, the spreadsheets were
protected by the attorney-client privilege and attorney work product doctrine.
See Appellant’s Motion for Reconsideration of the Court’s Order Dated January
13, 2021, 1/29/21, at 1-5, 7-8.
Judge Robins New conducted a hearing on February 23, 2021. We
review the parties’ arguments in detail, as they inform our review of
Appellant’s present coordinate jurisdiction argument. Appellant again argued
Appellees never requested discovery of the spreadsheets. N.T., 1/23/21, at
7. It also averred the spreadsheets: “are maintained by the legal department
in a propriety database that is password protected[;]” were created “for the
purposes of tracking, valuating and evaluating the merits of claims made
against” Appellant; and were privileged. Id. at 6, 8. The court inquired
whether Appellant had submitted a privilege log; it had not.5 Id. at 24.
____________________________________________
5 This Court has explained:
A privilege log provides an acceptable format to identify
documents, the applicable privilege, and the basis upon which
privilege is claimed. While it is true our rules do not per se require
the production of a privilege log when asserting a privilege as the
basis for objecting to discovery requests . . . a responding party
(Footnote Continued Next Page)
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Appellees responded they did request the spreadsheets, pointing to,
inter alia, interrogatories in their First Requests, which: (1) asked if Appellant
was “aware of . . . water intrusion issues” in the same developments or in
similar model homes; and (2) requested any documents related thereto. N.T.,
1/23/21, at 29. Appellees denied the spreadsheets were created or
maintained by Appellant’s legal department, and asserted they instead were
created by Appellant’s operations department and merely included information
gathered from a database maintained by the legal department. Id. at 46.
Finally, Appellees explained they were not requesting attorneys’ mental
impressions, conclusions, or opinions as to the value or merits of claims. Id.
at 25. Instead, Appellees stated, they were seeking discovery of “what
[Appellant] knew and when . . . about the systemic nature of these
[construction] defects . . . across these common models of homes and
developments[.]” Id. at 37-38.
____________________________________________
nonetheless must state objections in a manner that meets our rule
requirements. Rule 4009.12(b)(2) requires that responses to
document requests be in a paragraph-by-paragraph response
which shall identify all documents or things not produced or made
available when because of the objection they are not within the
scope of permissible discovery. Pa.R.C.P. . . . 4009.12(b)(2). The
rule further provides that documents or things not produced shall
be identified with reasonable particularity together with the basis
for non-production. Id. Production of a privilege log is the most
practical way to satisfy our rule requirements.
Brandywine v. Brandywine Vill. Assocs., 260 A.3d 179, 197 (Pa. Super.
2021) (footnotes omitted).
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Two days after the hearing, on February 25, 2021, Judge Robins New
denied Appellant’s motion for reconsideration, and directed Appellant to
comply with the January 14th order — and produce the spreadsheets — within
60 days.
III. Judge Cohen’s July 15, 2021, Order
Meanwhile, on March 4, 2021, Appellees served a Second Request for
Production of Documents on Appellant, which included a request for the
spreadsheets. Trial Ct. Op., 12/16/21, at 2. Appellant, however, did not
produce the spreadsheets, and on May 14th, Appellees filed a motion to
compel discovery and for sanctions and contempt. Appellant filed an answer
in opposition. “In anticipation of Judge Robin[ ] New’s retirement[,] this case
was transferred to the Honorable Denis P. Cohen[.]” Trial Ct. Op. at 2 n.1.
Judge Cohen conducted a hearing on June 30, 2021. Appellees asserted
that following Judge Robins New’s February 25th order, Appellant initially
advised it “need[ed] the full 60 days” to produce the spreadsheets. N.T.,
6/30/21, at 23. However, at the conclusion of those 60 days, Appellant sent
a discovery response, averring the spreadsheets were privileged and
protected attorney work product. Id. Appellees argued Judge Robins New
had already rejected Appellant’s privilege and work product objections, and
Appellant “has had multiple bites of the apple to fight this discovery, and it
lost[.]” Id. at 14, 17, 21.
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In response, Appellant reiterated its arguments that: the spreadsheets
“were not part of the original document request;” Judge Robins New’s first
order thus compelled the production of documents never requested, and
Appellant “never had a chance to object[ or] assert privilege.” N.T., 6/30/21,
at 38.
The trial court stated it would not “relitigate any of those issues, because
they have already been handled by Judge . . . Robins New[.]” N.T., 6/30/21,
at 41. Instead, the court would hear whether the parties have complied with
her prior orders, and, if not, why. Id. Appellant first asserted, “[W]e have
complied,” and began to address an unrelated consent discovery order issued
in June of 2021. See id. at 41-42. The court interjected and the following
exchange occurred:
[Trial Court: Judge Robins New ordered the production of the
spreadsheets. S]he gave you 60 days. So just tell the Court the
status of the spreadsheets.
[Appellant’s attorney:] The spreadsheets are subject to a
privileged argument.
THE COURT: That’s not what she ordered. She ordered the
spreadsheets. They have to be turned over.
[Appellant’s attorney:] Your Honor, the order arises from —
THE COURT: . . . That issue was raised before Judge . . .
Robins New and she ruled. It’s an order of the Court. . . . It has
got to be turned over. You may not like the order. It has got to
be turned over. We’re not going to relitigate it. That was her
order. It has to be done.
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Id. at 42-43. Appellant then requested 15 days to produce the spreadsheets,
which the trial court granted. Id. at 44.
The trial court filed the underlying order on July 15, 2021, denying
Appellees’ request for sanctions, but granting their request to compel
production of the spreadsheets. On the same day, Appellant filed a notice of
appeal, and it has complied with the trial court’s Pa.R.A.P. 1925(b) orders to
file statements of errors complained of on appeal. The court has issued an
opinion, addressing why it applied the coordinate jurisdiction rule to follow
Judge Robins New’s two prior orders. The opinion also rejected, on the merits,
Appellant’s reliance on the attorney-client privilege and work product doctrine.
The court found the spreadsheets merely included facts, and not any attorney
opinion or evaluation as to the merits of prior homeowners’ claims.
IV. Statement of Questions Involved & Standard of Review
Appellant raises two issues for this Court’s review.
1. Did the trial court err by concluding that, pursuant to the law
of the case doctrine, it was bound by the order of a previous trial
court judge to compel the production of privileged and work
product protected documents, even though Toll’s objections to
production were not before the previous trial court judge when
she issued her order?
2. Did the trial court err by disregarding Toll’s privilege log,
objections to production, and attorney affidavit, which established
that the documents at issue are privileged and work product
protected, and nonetheless compelling production of those
documents?
Appellant’s Brief at 6-7.
We note the relevant standard of review:
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“Generally, on review of an order concerning discovery, an
appellate court applies an abuse of discretion standard.” “To the
extent that the question involves a pure issue of law, our scope…of
review [is] plenary.”
“The trial court is responsible for ‘[overseeing] discovery
between the parties and therefore it is within that court’s
discretion to determine the appropriate measure necessary to
insure adequate and prompt discovering of matters allowed by the
Rules of Civil Procedure.’”
Berkeyheiser, 936 A.2d at 1125 (citations omitted).
V. Coordinate Jurisdiction Rule
In its first issue, Appellant avers the trial court erred in concluding it
was bound by Judge Robins New’s January 14, 2021, order and, by extension,
erred in refusing to hear argument on the attorney-client privilege and work
product doctrine. Appellant’s Brief at 30. Appellant presents the following
arguments in support. First, Appellees’ First Requests for discovery did not
include any request for the spreadsheets, and thus there was no related
privilege or work product issue before Judge Robins New when she issued the
January 14th order.6 Id. at 18. Appellant denies that it previously invoked,
before Judge Robins New, the present privilege and work product claims.
Instead, its prior claims as to the privilege related to other requested
documents, and not to the spreadsheets, which, again, were not a part of
____________________________________________
6 Appellant maintains that instead, the First Requests requested “documents
[Appellant] had provided to the Securities and Exchange Commission.”
Appellant’s Brief at 21-22.
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Appellees’ First Requests. Id. at 25. Indeed, Appellant raised the present
privilege and work product protection objections for “the first time” before
Judge Cohen. Id. at 32. Finally, even if the coordinate jurisdiction rule were
relevant, the trial court should have disregarded it because it was “clearly
erroneous” for Judge Robins New to compel production of the spreadsheets,
as that issue was not properly before her. Id. at 34. We conclude no relief
is due.
The “law of the case” doctrine includes the coordinate jurisdiction rule.7
Zane, 836 A.2d at 29. The Pennsylvania Supreme Court has explained:
Generally, the coordinate jurisdiction rule commands that upon
transfer of a matter between trial judges of coordinate jurisdiction,
a transferee trial judge may not alter resolution of a legal question
previously decided by a transferor trial judge. More simply stated,
judges of coordinate jurisdiction should not overrule each other’s
decisions.
[T]he coordinate jurisdiction rule is “based on a policy of
fostering the finality of pre-trial applications in an effort to
maintain judicial economy and efficiency.” Furthermore,
consistent with the law of the case doctrine, the coordinate
jurisdiction rule serves to protect the expectations of the parties,
to insure uniformity of decisions, to maintain consistency in
____________________________________________
7 The “law of the case” doctrine also includes the rules:
(1) upon remand for further proceedings, a trial court may not
alter the resolution of a legal question previously decided by the
appellate court in the matter; [and] (2) upon a second appeal, an
appellate court may not alter the resolution of a legal question
previously decided by the same appellate court[.]
Zane, 836 A.2d at 29 n.6 (citation omitted).
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proceedings, to effectuate the administration of justice, and to
bring finality to the litigation.
This general prohibition against revisiting the prior holding of
a judge of coordinate jurisdiction, however, is not absolute.
Departure from the rule is allowed in “exceptional circumstances”
when there has been a change in the controlling law or where
there was a substantial change in the facts or evidence. [A]n
exception is permitted where “the prior holding was clearly
erroneous and would create a manifest injustice if followed.” . . .
Id. (citations omitted).
The trial court rejected Appellant’s assertions that the spreadsheets
were not raised before Judge Robins New. Trial Ct. Op. at 9. The court
referred to, inter alia, Appellant’s memorandum of law, in support of their
opposition to Appellee’s motion to overrule objections to discovery, which
“explicitly argue[d] to Judge Robins New[ ] that both attorney-client
privilege and work product doctrine apply to the water intrusion claims-
tracking spreadsheets.” Id. at 10.
Furthermore, we observe Appellant wholly ignores: (1) its own motion
for reconsideration of the January 14, 2021, order, which argued both the
spreadsheets were not included in Appellees’ First Requests and were
privileged; and (2) the extensive oral argument presented by both parties on
these issues at the February 23rd hearing. See N.T., 2/23/21, at 7-8
(Appellant’s counsel arguing: (1) “this issue is not properly before this Court,”
as Appellees “never once requested in discovery these spreadsheets;” and (2)
spreadsheets are “confidential, proprietary and privileged,” and are
“maintained . . . by the legal department . . . for the purposes of tracking,
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valuating and evaluating the merits of claims”). Presently, Appellant makes
no claim that, as of the February 23rd hearing, it was denied notice of
Appellees’ request for the spreadsheets, nor denied an opportunity to be
heard. When Judge Robins New inquired whether Appellant had filed a
privilege log, Appellant offered no explanation why it had not filed one, nor
any explanation if it would. See N.T., 2/23/21, at 24.
We agree with the trial court that Judge Robins New heard both parties’
arguments, found the spreadsheets were not privileged, and thus continued
to direct, in her February 25, 2021, order, Appellant to produce the
spreadsheets. Appellant’s insistence, that spreadsheets and issues of
privilege were not before Judge Robins New, is disingenuous.
At the June 30, 2021, hearing, Judge Cohen reminded Appellant that
Judge Robins New already twice ruled on the issue of privilege and directly
asked Appellant about its compliance with her orders. N.T., 6/30/21, at 41-
42. As the trial court pointed out, Appellant proffered no evidence or
argument of “an intervening change in the controlling law, substantial change
in the relevant facts or evidence, or that the prior ruling was clearly erroneous
and would create manifest injustice.” See Trial Ct. Op. at 11. Instead,
Appellant merely reiterated the spreadsheets were “privileged” and attempted
to rehash the same issues already resolved by Judge Robins New. See N.T.,
6/30/21, at 42. Similarly, on appeal, while Appellant argues the trial court
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erred in precluding further argument about the privilege, it does not explain
what novel argument it would have presented. See Appellant’s Brief at 30.
In light of the foregoing, we further agree with the trial court that where
“Judge Robins[ ] New had already resolved the discovery dispute by ordering
[Appellant] to produce the requested spreadsheets,” the court, sitting in a
“later stage of pre-trial litigation, should not have overturned Judge Robins[ ]
New’s Order.” See Zane, 836 A.2d at 29-30. The court properly applied the
coordinate jurisdiction and did not err in prohibiting re-litigation of the same
issues.
VI. Attorney-Client Privilege & Attorney Work Product Doctrine
Having concluded the trial court properly deferred to Judge Robins New’s
prior discovery orders, we now consider whether the spreadsheets were
protected by the attorney-client privilege and attorney work product doctrine.
“Whether attorney-client privilege protects a particular communication is a
question of law. Our standard of review is de novo and our scope of review is
plenary.” Estate of Paterno v. NCAA, 168 A.3d 187, 194 (Pa. Super. 2017).
Similarly, whether a trial court properly interpreted and applied Pa.R.C.P.
4003.3, pertaining to the attorney work product doctrine, presents a question
of law. Id. at 198.
At this juncture, we consider Appellees’ argument that Appellant has
waived any argument, on the attorney-client privilege and work product
doctrine, for failure to appeal from Judge Robins New’s two orders. In support,
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Appellees cite Pennsylvania Rules of Appellate Procedure 902 (appeal as a
matter of right shall be filed within time allowed by Rule 903), 903(a) (appeal
shall be filed within 30 days after entry of order), 313 (a) (collateral order
may be appealed as a matter or right), and 1311(b) (permission to appeal
from interlocutory order may be sought by filing a petition within 30 days after
entry of such order). Appellees’ Brief at 10-11.
Appellant responds that the lack of any appeal from Judge Robins New’s
January 14, 2021, order does not result in waiver. It relies on In re Estate
of Petro, 694 A.2d 627, 631 (Pa. Super. 1997), which stated: “We can find
no . . . statutory or common law, which states that a collateral order must be
appealed within 30 days . . . or an appeal based upon the substance of the
collateral order is forever precluded.”8 Appellant’s Brief at 29.
We agree with Appellant that it has not waived an appellate challenge
as to its privilege claims. In In re Estate of Petro, this Court reasoned the
appellant “could have” appealed from a collateral order within 30 days, but
instead, he
elected to file a Motion for a New Trial Nunc Pro Tunc based upon
after-discovered evidence. Such was his right. We can find no
rule of law, either statutory or common law, which states that a
collateral order must be appealed within 30 days of its entrance
or an appeal based upon the substance of the collateral order is
____________________________________________
8Appellant also continues to insist that neither Judge Robins New’s January
2021 order nor February 25, 2021, order addressed its privilege objections,
and thus those orders were not appealable. Appellant’s Brief at 28. We have
addressed this premise above.
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forever precluded. See Pa.R.A.P. 313 (a) (“An appeal may be
taken as of right from a collateral order of an administrative
agency or lower court.”) (emphasis added).
[We note Pa.R.A.P.] 902 and 903 . . .state that an appeal
permitted as of right from a lower court order shall be taken within
30 days after the entrance of the order in question[. However, i]n
the context of collateral orders, Rules 902 and 903 merely govern
when the appeal must be taken if an appellant decides to exercise
his right to file an immediate appeal. These rules do not mandate
that such an appeal must be taken at that time or the appellant’s
claims be forever lost. . . .
In re Estate of Petro, 694 A.2d at 630-31. Accordingly, we consider the
merits of Appellant’s privilege and work product claims.
Appellant argues Judge Cohen failed to consider a privilege log it
produced “[a]round the same time” it filed objections to Appellees’ Second
Requests. Appellant’s Brief at 10, 36. Appellant maintains this log “provided
the date, author, type of privilege . . . claimed, and . . . basis for claiming
privilege and work product protection[.]” Id. at 40. Appellant claims the trial
court also overlooked the affidavit of its counsel, while improperly relying
“exclusively on an oral deposition of [Appellant’s] corporate designee, Mike
Klein.” Id. at 36. Appellant asserts “the spreadsheets are protected work
product because they are derived from a database that is maintained by
[Appellant’s] legal department,” and the spreadsheets disclose its in-house
counsel’s mental impressions, “conclusions, opinions, memoranda, notes or
summaries, legal research, or legal theories.” Id. at 41, 45. With regard to
the attorney-client privilege, Appellant maintains the fact the spreadsheets
were created by its operations division, and not legal department, is not
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dispositive. Id. at 51. Appellant alleges that both the database and the
spreadsheets are “means of communicating between [Appellant’s] counsel
and . . . other employees, and . . . contains confidential information regarding
claims relayed to and from [Appellant’s] in-house counsel for the purpose of
obtaining legal advice[.]” Id. at 48, 50. No relief is due.
“Whether attorney-client privilege protects a particular communication
from disclosure is a question of law to be decided by the court.” Nationwide
Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1265 (Pa. Super. 2007). See also
Estate of Paterno, 168 A.3d at 194. In Pennsylvania, the attorney-client
privilege is codified at Section 5928 of the Judicial Code:
Confidential communications to attorney
In a civil matter counsel shall not be competent or
permitted to testify to confidential communications made
to him by his client, nor shall the client be compelled to
disclose the same, unless in either case this privilege is
waived upon the trial by the client.
42 Pa.C.S. § 5928; see Nationwide Mut. Ins. Co., 924 A.2d at 1263. This
Court has stated:
Pursuant to this statute, four elements must be satisfied in order
to successfully invoke the protections of attorney-client privilege:
1) The asserted holder of the privilege is or sought to
become a client.
2) The person to whom the communication was made is
a member of the bar of a court, or his subordinate.
3) The communication relates to a fact of which the
attorney was informed by his client, without the presence
of strangers, for the purpose of securing either an opinion
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of law, legal services or assistance in a legal matter, and
not for the purpose of committing a crime or tort.
4) The privilege has been claimed and is not waived by
the client.
In sum, under our statutory and decisional law, attorney-
client privilege protects from disclosure only those
communications made by a client to his or her attorney which
are confidential and made in connection with the providing of legal
services or advice.
The privilege extends to communications from an attorney
to his or her client if and only if the communications fall within
the general statutory definition.
Nationwide Mut. Ins. Co., 924 A.2d at 1264 (citations omitted).
We consider the parties’ burdens:
The party who has asserted attorney-client privilege 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., 924 A.2d at 1266. We reiterate that
“[p]roduction of a privilege log is the most practical way to satisfy our rule
requirements” of clearly asserting discovery objections. Brandywine, 260
A.3d at 197.
This Court has stated:
“The protection against the discovery of work product is designed
to shelter the mental processes of an attorney, providing a
privileged area within which he can analyze and prepare his
client’s case.” . . .
[Pa.R.C.P. 4003.3] governs [the] work product doctrine:
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Subject to the provisions of Rules 4003.4 and 4003.5, a
party may obtain discovery of any matter discoverable
under Rule 4003.1 even though prepared in anticipation
of litigation or trial by or for another party or by or for
that other party’s representative, including his or her
attorney . . . or agent. The discovery shall not include
disclosure of the mental impressions of a party’s
attorney or his or her conclusions, opinions,
memoranda, notes or summaries, legal research or
legal theories. With respect to the representative of a
party other than the party’s attorney, discovery shall not
include disclosure of his or her mental impressions,
conclusions or opinions respecting the value or merit of
a claim or defense or respecting strategy or tactics.
Pa.R.C.P. No. 4003.3.[ ] Whether the trial court properly
interpreted and applied Rule 4003.3 presents a question of law.
Estate of Paterno, 168 A.3d at 197-98 (emphasis added).
First, no relief is due on Appellant’s claims as to Judge Cohen’s
consideration of certain evidence. As discussed above, Judge Cohen properly
concluded Judge Robins New already ruled on Appellant’s privilege claims, and
thus Judge Cohen was bound by the coordinate jurisdiction rule to follow her
prior orders.
Nevertheless, Judge Cohen’s opinion also addressed the merits of the
privilege claims, observing the following. The spreadsheets were created by
Appellant’s “Operation Department as a result of complaints from customers.”
Trial Ct. Op. at 6. Appellant’s corporate designee, Michael Klein, “described
the contents of the spreadsheets as a list of water intrusion claims by
development in the Chester and Delaware County areas,” with “the names of
the development, the name and address of each homeowner who . . . asserted
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a claim, the date of the settlement of the home, and whether the claim was
made within the statute. [sic].” Id. The trial court thus opined “[t]he
information contained in the spreadsheets is factual information” that
Appellant “has gathered regarding houses they built.” Id. The court
concluded the spreadsheets were “not communications to an attorney for the
purpose of legal advice,” even if Appellant had “at one point transmitted
[them] to [its] attorneys.” Id., citing, inter alia, In re Gartley, 491 A.2d 851,
858 (Pa. Super. 1982) (attorney-client privilege does not apply to pre-existing
documents).
On appeal, Appellant refers to a privilege log it “properly provided” after
Judge Robins New’s two orders compelling production of the spreadsheets.
See Appellantf’s Brief at 37. Appellant’s present contention, that Judge Cohen
should have reviewed this log, is mistaken as the issues of privilege had
already been resolved by Judge Robins New and further court consideration
of the issue was precluded by the coordinate jurisdiction rule. The proper
inquiry, instead, is whether Appellant properly filed a privilege log,
contemporaneously with its objections to the requests for discovery, for Judge
Robins New’s consideration. As discussed above, when specifically asked by
Judge Robins New at the February 23, 2021, hearing about a privilege log,
Appellant offered no explanation why it had not filed one nor whether one
would be forthcoming. The lack of a privilege log, along with the testimony
of Appellant’s corporate designee that the spreadsheets merely contain lists
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of homeowners and their claims, support a finding that the spreadsheets are
not communications protected by the attorney-client privilege. See
Nationwide Mut. Ins. Co., 924 A.2d at 1264.
With respect to the attorney work product, Judge Cohen observed the
following:
[The spreadsheets] only track factual information regarding
claims and incidents from [Appellant]-built homes. The
spreadsheets do not evaluate the merit of each claim, nor do they
provide any investigatory insights. Rather, they note the names
of the development, the name and address of each homeowner
who . . . asserted a claim, the date of the settlement of the home,
and whether the claim was made within the statute [sic]. Further,
because a non-attorney created the spreadsheets, they are only
protected from discovery to the extent that they offer evaluation
of the legal claims. The requested spreadsheets do no such thing.
Therefore, the spreadsheets are not protected by the work
product doctrine.
Trial Ct. Op. at 8.
Appellant’s vague claim, that the spreadsheets include its in-house
counsel’s mental impressions, “conclusions, opinions, memoranda, notes or
summaries, legal research, or legal theories,” is belied by its own corporate
designee’s testimony that the spreadsheets are comprised of lists of
homeowners, the dates of their water intrusion claims, and other factual
information. See Appellant’s Brief at 41. Appellant’s repeated reference to a
database maintained by the legal department, as the source of the information
in the spreadsheets, is likewise meritless; the source of this factual
information is not dispositive as to whether the information includes an
attorney’s legal opinions.
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We reiterate the following discussion by Judge Cohen, which found the
spreadsheet information was discoverable:
[Klein] noted that the spreadsheets contained the names of the
development, the name and address of each homeowner who had
asserted a claim, the date of the settlement of the home, and
whether the claim was made within the statute. The information
contained in the spreadsheets is factual information. The
spreadsheets detail specific incidents and relevant factual
information connected to those claims and incidents as well as
[Appellant’s] knowledge of those claims. The spreadsheets
themselves and the underlying factual information therein are not
communications to an attorney for the purpose of legal advice;
they represent facts and information that [Appellant] has
gathered regarding houses they built. As the attorney-client
privilege does not extend to factual information, [Appellant]
cannot avail itself of privilege to prevent discovery.
Trial Ct. Op. at 6.
Accordingly, we conclude the attorney work product doctrine is not
applicable here.
VII. Conclusion
For the foregoing reasons, we conclude no relief is due on Appellant’s
coordinate jurisdiction rule, attorney-client privilege, and attorney work
product doctrine issues. Thus, we affirm the July 15, 2021, order, which
granted Appellees’ motion to compel production of the spreadsheets and
denied their request for sanctions.
Order affirmed.
Judge Pellegrini joins the Memorandum.
Judge McLaughlin Concurs in the Result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2022
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