Ben v. Schwartz

• Decision Date: 21 April 1999
• Parties: Ewa Marta BEN and Arthur T. Ben, Appellee, v. Burton SCHWARTZ, D.D.S. and Dr. Vincent DePancis, t/a Suburban Dental Care, Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs. Appeal of Burton Schwartz, D.D.S. Ewa Marta Ben and Arthur T. Ben, Appellee, v. Burton Schwartz, D.D.S. and Dr. Vincent DePancis, t/a Suburban Dental Care, Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs. Appeal of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs.
• Court: Pennsylvania Supreme Court

729 A.2d 547

556 Pa. 475

Ewa Marta BEN and Arthur T. Ben, Appellee, v. Burton SCHWARTZ, D.D.S. and Dr. Vincent DePancis, t/a Suburban Dental Care, Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs.

Appeal of Burton Schwartz, D.D.S.

Ewa Marta Ben and Arthur T. Ben, Appellee, v. Burton Schwartz, D.D.S. and Dr. Vincent DePancis, t/a Suburban Dental Care, Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs.

Appeal of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs.

Supreme Court of Pennsylvania.

Argued April 27, 1998.

Decided April 21, 1999.

Michelle T. Wirtner, Jeffrey D. Hutton, Philadelphia, for Burton Schwartz, D.D.S.

Paul A. Tufano, General Counsel, for Com. of Pa.

James A. Holzman, Bernadette Paul, Robert J. DeSousa, Gerard M. Mackarevich, Harrisburg, for St. Bureau of Professional and Occupational Affairs.

Richard L. Gerson, Philadelphia, for Ewa M. and Arthur T. Ben.

Anita Fulwiler O'Meara, for Dr. Vincent DePanicis, et. al.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

ZAPPALA, Justice.

The issue presented in these appeals is whether the order of the Montgomery County Common Pleas Court, compelling the Bureau of Professional and Occupational Affairs to produce its investigative file pertaining to complaints filed against a dentist, is appealable under the exception to the final order rule for collateral orders. We find that the order was appealable as a collateral order and remand for further proceedings.

On October 11, 1994, Ewa Marta Ben and Arthur T. Ben filed a writ of summons against Burton Schwartz, D.D.S. and Dr. Vincent DePancis, t/a Suburban Dental Care. The complaint, which was filed on April 5, 1995, asserted a malpractice claim arising out of dental treatment provided to Ewa Ben from July 1991 until September 1993. On November 29, 1995, a notice of deposition and subpoena were issued to the Bureau compelling production of the Bureau's investigative file pertaining to Dr. Schwartz at a deposition scheduled for December 20, 1995.

The Bureau is an administrative agency whose powers and duties include the investigation, prosecution and discipline of professional licensees, including dentists. 71 P.S. § 279.3. The State Board of Dentistry is a professional licensing board within the Bureau responsible for the investigation and discipline of Pennsylvania's dentists pursuant to The Dental Law, 63 P.S. § 121 et seq. In response to the issuance of the subpoena, the Bureau filed a Motion to Quash Subpoena and for Protective Order. The Bureau asserted that the information subpoenaed was privileged and not subject to discovery. The privileges asserted included governmental/executive privilege and privilege under the Right-to-Know Law, 65 P.S. § 66.1 et seq. The Bureau also asserted that the subpoenaed information included medical records of persons who were not involved in the lawsuit and purported to assert the doctor-patient privilege on behalf of those unidentified persons. Finally, the Bureau claimed that compliance with the subpoena would result in unreasonable annoyance, oppression, burden and expense because investigations relating to the large volume of complaints received annually consume its limited resources.

On February 13, 1996, the common pleas court entered an order dismissing the motion to quash the subpoena and directing that the Bureau produce the investigative file relating to Dr. Schwartz. The Bureau filed a notice of appeal to the Commonwealth Court on March 14, 1996. The common pleas court directed the Bureau to file a concise statement of matters complained of pursuant to Pa. R.A.P.1925(b). Subsequent to the Bureau's filing of its statement, the court issued an opinion in support of its order. The court concluded that the appeal should be quashed as interlocutory because its order dismissing the motion was not a final, appealable order under the Rules of Appellate Procedure. Although the court found that the merits of the Bureau's claim did not have to be addressed because the appeal was premature, the court addressed the merits to aid the Commonwealth Court should it find the order was appealable. The court determined that there was no privilege which insulated the information subpoenaed from discovery.

After the notice of appeal was filed, the Bens settled their claims against Dr. Schwartz and executed a joint tortfeasors release. The malpractice action against Dr. DePancis continued.

On March 14, 1997, the Commonwealth Court quashed the Bureau's appeal from the common pleas court's order as interlocutory. The court concluded that the order was not appealable under the exception to the final order rule for collateral orders because the order was not separable from and collateral to the main cause of action. Relying on its decision in Doe v. Department of Public Welfare, 105 Pa.Cmwlth. 482, 524 A.2d 1063 (1987), the court reasoned that discovery orders are to be considered collateral only when they do not relate in any way to the merits of the action.

Because the complaint alleged that both dentists were negligent in treating Ewa Ben, the court found that information regarding the performance of one would undoubtedly shed light upon the performance of the other. The common pleas court's order was considered not separable from and collateral to the Bens' malpractice claim because the subpoenaed information had the potential to determine one of the ultimate issues in the case. The Commonwealth Court found it unnecessary to address the Bureau's claims of privilege based on its determination that the order was not appealable.

The Bureau and Dr. Schwartz challenge the Commonwealth Court's determination, asserting that the order compelling production of its investigative file on Dr. Schwartz constitutes a collateral order under applicable law. They contend that the merits of the issue of whether the Bureau's investigative file is protected from compliance with the subpoena are independent and conceptually different from the remaining claim of malpractice by Dr. DePanicis.

An appeal may be taken only from a final order unless otherwise permitted by statute or rule. A final order is ordinarily one which ends the litigation or disposes of the entire case; however, "[a]n appeal may be taken as of right from a collateral order of an administrative agency or lower court." Pa. R.A.P. 313(a). A collateral order is defined under Pa. R.A.P. 313(b) as "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."¹

In Geniviva v. Frisk, 555 Pa. 589, 725 A.2d 1209 (1999), we observed that "[a]lthough the `collateral order doctrine' has often been applied in determining whether the appeal was proper in particular cases, our courts have not provided significant analysis of the elements defining a collateral order—separability, importance, and irreparable loss if review is postponed—so as to allow for predictable application to different circumstances."

The Commonwealth Court determined in this case that the Bureau had failed to establish the separability prong of the collateral order test, citing its decision in Doe v. Commonwealth of Pennsylvania, Department of Public Welfare, 105 Pa. Cmwlth. 482, 524 A.2d 1063 (1987). In Doe, the appellee had filed a civil action against Mayview State Hospital after an escapee from Mayview abducted and raped her. During discovery, the appellee requested production of a memorandum outlining the psychological status and chronology leading to the inmate's escape and a document analyzing the inmate's admission, background and escape. Mayview refused to produce the documents, claiming that the state hospital was privileged under the Mental Health Procedures Act and the Peer Review Protection Act. The common pleas court concluded that the documents were not privileged and ordered production of the documents for an in camera inspection to determine their relevancy.

The Commonwealth Court quashed Mayview's appeal from the discovery order, reasoning that

Here, the documents relate to the actions undertaken by the staff and physicians at Mayview State Hospital, which actions [appellee] asserts, by their negligence, were the proximate cause of her injury. The information sought has the potential to determine the ultimate issues of liability or to dissuade the trier of fact from finding liability at all. When courts have applied the Cohen doctrine to discovery orders, they have held them to be "separable and collateral" only when they did not relate in any way to the merits of the action itself.

105 Pa.Cmwlth. at 487, 524 A.2d at 1065.

The Bureau asserts that the issue of privilege is separate and distinct from the underlying cause of action, even if release of the information could shed light on the malpractice allegations. The Bureau relies upon the decision of the United States Court of Appeals for the Third Circuit in In Re: Ford Motor Company, 110 F.3d 954 (1997) as support for its argument. In that product liability action, Ford Motor Company invoked the attorney-client privilege and the work product doctrine in challenging the discovery of documents related to the development, marketing and safety of the Bronco II, a four-wheel drive utility vehicle. The district court denied Ford's request for protection of the documents requested. The appeals court determined that it had appellate jurisdiction under the collateral order doctrine, reversed the district court's order in part and remanded with directions that discovery be denied as to particular documents.

In addressing the separability issue under the collateral order doctrine, the court considered, and rejected, the...