Hoover v. Welsh

BROSKY, Judge.

This appeal is taken from a pre-trial Order permitting counsel for appellee to interview ex parte a physician with whom appellant, Mrs. Hoover, had consulted. Appellants now challenge this Order on the basis that it violates the physician/patient privilege.

Appellee¹ filed a Motion requesting the trial court to rule on the propriety of conducting ex parte communications with a Dr. Lowry. Appellant, Mrs. Hoover, consulted with this physician to discuss the viability of injections which would enable her voice to return to near normalcy after her vocal cord had been paralyzed as a result of surgery to remove a neck mass. After consideration of the Motion, the trial court entered the Order which is the subject of the instant appeal.

After the appeal to this court had been docketed, appellee filed a Motion to quash on the basis that the Order in question is an interlocutory one which is not appealable as of right under Pa.R.App.P. 311 or for which permission to appeal must be sought pursuant to Chapter Thirteen of the Pennsylvania Rules of Appellate Procedure. See Pa.R.App.P. 312. Appellants’ response and supplemental response to this Motion are, in essence, that immediate review is necessary because the right to confidentiality in the context of a physieian/patient relationship is now lost and that “[t]he ramifications of the lower court’s Order of April 8, 1991, are no longer conjectural. They are factually concrete.” However, neither party states that the nature of the Order in question is anything other than interlocutory. In their respective appellate Briefs, neither party addresses the appealability of the subject Order, nor does appellee in his Brief challenge the procedure by which the instant appeal was taken.

We reserved ruling on appellee’s Motion to Quash pending argument and disposition of this appeal, and we now quash. Our reasoning follows.

An interlocutory appeal of this nature may only be taken by the filing of a Petition for permission to appeal pursuant to Chapter Thirteen of the Rules of Appellate Procedure. Otherwise, the appeal will be quashed because the filing of the Petition is jurisdictional in nature. Casani v. Lincoln Bank, 292 Pa.Super. 90, 436 A.2d 1019 (1981); Pa. R.App.P. 312, 1311(b). Prior to the filing of such Petition, however, the trial court must certify the Order from which an appeal is sought to be taken pursuant to 42 Pa.C.S.A. § 702(b), which states:

(b) Interlocutory appeals by permission. — When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial grounds for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.

We have held that such certification is a jurisdictional prerequisite to the filing of a Petition for permission to appeal pursuant to Chapter Thirteen of the Appellate Rules of Procedure. If the trial court’s Order from which the appeal is sought to be taken contains the requisite certification and if a Petition for permission to appeal is filed pursuant to Chapter Thirteen, only then may we exercise our discretion to permit the appeal. In re Handwriting Exemplar of Casale, 338 Pa.Super. 111, 487 A.2d 877 (1985), appeal granted, 508 Pa. 605, 499 A.2d 577 (1985), rev’d on other grounds, 512 Pa. 548, 517 A.2d 1260 (1986). See also G.R. Darlington, K.J. McKeon, D.R. Schuckers & K.W. Brown, 1 Pennsylvania Appellate Practice 293-94 (1986) [hereinafter, Darlington]. If a Petition for permission to appeal is filed without the requisite Section 702(b) statement or if no Petition for permission to appeal is filed with the appellate court, the appeal will be quashed, as we are without jurisdiction to exercise our discretion in this regard. Casani, supra; Handwriting Exemplar, supra; Augelletta v. Fox, 278 Pa.Super. 1, 419 A.2d 1325 (1980).

The Order of the trial court from which the instant appeal purports to be taken does not contain the requisite certification under 42 Pa.C.S.A. § 702(b), and appellants have not filed a Petition for permission to appeal to this court pursuant to Chapter Thirteen of the Appellate Rules. Absent both jurisdictional prerequisites, we are without authority to exercise our discretion in this regard.

Appeal quashed.²,³

1 . Holy Redeemer Hospital is no longer a party to this litigation, having been dismissed therefrom by stipulation of the parties.

2 . I:i its Motion to quash the instant appeal, appellee appends as Exhibits a letter from counsel for appellant which requests the trial court to certify the Order from which this appeal was improperly taken and a letter response from the court indicating its refusal.

We note for the benefit of counsel, the trial court and the Bench and Bar, in general, that the proper procedure to be followed if the trial court’s Order does not include the requisite certification pursuant to Section 702(b) is to request the court to amend its Order accordingly. If the court refuses to amend its Order to include the requisite certification, it must do so by Order denying the amendment. The appellant must then challenge the Order denying the amendment by filing a Petition for review pursuant to Chapter Fifteen of the Rules of Appellate Procedure, rather than a Petition for Permission to appeal under Chapter Thirteen of the Appellate Rules. Silver v. Downs, 493 Pa. 50, 425 A.2d 359 (1981); Pennsylvania Turnpike Comm’n v. Jellig, 128 Pa.Commw. 171, 563 A.2d 202 (1989), appeal denied, 525 Pa. 606, 575 A.2d 571 (1990); 42 Pa.C.S.A. § 5574; Pa.R.App.P. 312; Comment following Pa.R.App.P. 1311. This Comment states in relevant part:

Where the ... lower court refuses to amend its order to include the prescribed statement, a petition for review under Chapter 15 of the unappealable order of denial is the proper mode of determining whether the case is so egregious as to justify prerogative appellate correction of the exercise of discretion by the lower tribunal____

Darlington, supra in text, gives further guidance where, as here, the trial court has not amended its otherwise unappealable Order:

[ A] party filing a petition for review from an order denying certification should incorporate into the petition for review all of the components which are required to be included within a petition for permission to appeal. See Pa.R.A.P. 1312. In such a case, the best practice is to prepare a document which conforms in every respect to the requirements of a petition for permission to appeal, but label the document a ‘Petition For Review (from the order of the Court of Common Pleas of ._ County refusing to amend its order pursuant to Pa.R.A.P. 1311(b) [sic]’. In presenting the ‘statement of reasons,’ emphasis should be placed on why the trial court ... erred in failing to amend its order viz., that the underlying interlocutory order the petitioner seeks to appeal involves a ‘controlling question of law as to which there is a substantial ground for difference of opinion’ and ‘immediate appeal from the order may materially advance the ultimate termination of this matter.’ The petition also should stress that the refusal to amend was ‘egregious.’

At 295-96.

3 . See note 3 on page 107.

Although appellants may have requested the trial court to amend its Order to include the Section 702(b) certification, albeit in the form of a letter, the court did not enter an Order denying same. A response in the form of a letter hardly qualifies as an Order of record. Neither appellants’ letter to the court nor the court’s response are part of the record certified to this court, and, therefore, we are unable to consider those documents in any event. Even if the trial court had issued an Order denying the amendment, appellants have failed to follow the proper procedure in requesting this court to entertain this appeal.

3. We note in passing that the Order in question would not fit any of the categories of interlocutory orders appealable as of right under new Pa.R.App.P. 311 which became effective on July 6, 1992, and which applies to all appeals commenced after that date. See Order of May 6, 1992, No. 75 Appellate Rules Docket No. 1.