Hoffman v. Knight

• Decision Date: 25 April 2003
• Citation: 823 A.2d 202
• Parties: Carl A. HOFFMAN, Jr., D.O. and Pennsylvania Institutional Health Services, Inc. v. Gregory H. KNIGHT, Esquire and Hetrick, Zaleski, Ernico & Pierce Appeal of: Joseph D. Lehman
• Court: Pennsylvania Superior Court

823 A.2d 202

Carl A. HOFFMAN, Jr., D.O. and Pennsylvania Institutional Health Services, Inc. v. Gregory H. KNIGHT, Esquire and Hetrick, Zaleski, Ernico & Pierce Appeal of: Joseph D. Lehman

Superior Court of Pennsylvania.

Submitted January 6, 2003.

Filed April 25, 2003.

Robert M. Wolff, Camp Hill, for appellant.

Joshua D. Lock, Harrisburg, for Hoffman.

Jeffrey B. McCarron, Philadelphia, for Knight and Hetrick, Zaleski, Enrico & Pierce.

Before: DEL SOLE, P.J., FORD ELLIOTT and POPOVICH, JJ.

POPOVICH, J.:

¶ 1 This appeal stems from the May 10, 2002 Order of the Court of Common Pleas, Dauphin County, which granted a commission to take testimony of a witness outside Pennsylvania, namely, Joseph Lehman.¹ Upon review, we reverse.

¶ 2 The underlying action involves claims by Pennsylvania Institutional Health Services, Inc. (PIHS), and the individuals who operated PIHS,² for alleged legal malpractice and breach of contract against their former lawyer, Gregory Knight, Esquire (Knight), and his firm, Hetrick, Zaleski, Ernico and Pierce (Law Firm), collectively Appellees. According to the Complaint, PIHS retained Knight in order to incorporate PIHS under the laws of Pennsylvania, to advise PIHS on governmental contracting, particularly with the Pennsylvania Department of Corrections (DOC), to represent PIHS in an administrative law action surrounding the death of inmate John Powell at SCI-Camp Hill, to obtain from DOC contractually owed compensation and to provide advice during negotiation for an office lease for PIHS. See Complaint, at ¶ 5.

¶ 3 The claims in the ten count Complaint center on allegations of Knight's legal malpractice and breach of contract in his dealings with PIHS and between PIHS and DOC. Counts I and II raised legal malpractice and breach of contract claims regarding PIHS's incorporation. Counts III and IV raised legal malpractice for failure to protect PIHS for extra-contractual services. Counts VII and VIII raised legal malpractice and breach of contract claims regarding actions with the Pennsylvania Board of Claims. Counts IX and X raised legal malpractice and breach of contract claims regarding the office lease.

¶ 4 Counts V and VI raised legal malpractice and breach of contract claims for failing to respond appropriately to administrative actions of DOC. The administrative action resulted in the suspension of contracts between DOC and PIHS and in the suspension of PIHS and its physicians from any and all state correctional facilities. These administrative actions were the result of a DOC internal investigation into the death of John Powell (Powell), an inmate at SCI-Camp Hill, who died while PIHS was the medical services provider. DOC determined that Powell's death was the result of dehydration. In the Complaint, PIHS claimed that Knight committed malpractice and breach of contract because Knight failed to challenge an autopsy report and to proceed with litigation against DOC. PIHS contended that the suspensions were improperly based on the determination that PIHS was responsible for the death of Powell due to dehydration since Powell did not die from dehydration. Regarding Lehman, PIHS contended:

On July 29, 1992, Corrections Commissioner Lehman wrote to Dr. Hoffman advising him that a DOC internal investigation "raises very grave concerns about the adequacy of medical care provided to Mr. Powell", and announcing a ban of Dr. Hoffman and John Lesniewski, D.O., a PIHS physician, from the grounds of any state correctional facility.

Complaint, at ¶ 82.

¶ 5 The parties engaged in extensive discovery. Trial was scheduled for the August 2000 trial term but was continued until the January 2001 trial term. On October 10, 2000, Appellees filed a Petition for the Issuance of a Letter Rogatory to take the testimony of Lehman. On October 11, 2000, the trial granted the petition and directed the prothonotary to issue a letter rogatory to take the testimony of Lehman. Lehman filed a brief in opposition followed by a motion for reconsideration because the trial court issued the letter rogatory without giving Lehman an opportunity to be heard. The trial court vacated its October 11, 2000 order, as well as the letter rogatory issued by the prothonotary.

¶ 6 On May 7, 2002, Appellees filed in the trial court a Petition for Commission to the Superior Court of Washington State, Thurston County, for Issuance of Subpoena. In the petition, Appellees stated that Lehman, the current Secretary of the Department of Corrections for the State of Washington, was the Commissioner of the Pennsylvania Department of Corrections during the suspensions of PIHS and Hoffman. Appellees claimed that Lehman had knowledge of the investigation regarding the suspensions. Appellees proposed to call Lehman to testify that the death of Powell was not a significant factor in the decision by DOC to suspend PIHS and Hoffman and to discontinue the contractual relationship with PIHS. Appellees claimed prejudice in his defense without the testimony of Lehman.

¶ 7 On May 8, 2002, Lehman filed a Brief in Opposition. On May 10, 2002, the trial court granted the petition and issued a commission to obtain Lehman's trial testimony as being necessary in the interest of justice. Lehman filed a timely appeal of this order. The trial court did not order a 1925(b) statement nor did it file an opinion explaining its reasoning for granting the Commission.

¶ 8 On appeal, Lehman presents the following issues for our review:

1. Did the record support the trial court's determination that Lehman's testimony was necessary in the interests of justice where the record contained only a vague reference to how his testimony was remotely related to an issue in the case?

Did Knight specifically show:

a. how Lehman's proposed testimony related to the issues of the case;

b. that the information sought through Lehman's testimony could be obtained through no other means; or

c. how Knight would be prejudiced without Lehman's testimony?

2. Did the trial court abuse its discretion by granting the petition even though the testimony sought is protected by the deliberative process privilege?

Appellant's brief at 5.

¶ 9 Before addressing the issues in Lehman's appeal, we must first ascertain whether the appeal is properly before us. An appeal may be taken only from a final order, unless otherwise permitted by rule or statute. A final order is ordinarily one that ends the litigation or disposes of the entire case. See Pa.R.A.P. 341. However, an appeal may be taken as of right from a collateral order of an administrative agency or lower court. See Pa.R.A.P. 313(a). A collateral order is "[a]n 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." See Pa.R.A.P. 313(b). To be separable and collateral, the nature of the issue to be reviewed must be such that it can be addressed without the need to analyze the central issue of the case. See Ben v. Schwartz, 556 Pa. 475, 481, 729 A.2d 547, 550 (Pa.1999)

.

¶ 10 In Ben, our Supreme Court addressed whether a non-party's, the Bureau of Professional and Occupational Affairs, appeal of the trial court's order directing it to produce its investigative file of the defendant dentist in connection with a dental malpractice lawsuit was a collateral order. Our Supreme Court employed the Third Circuit's approach from In re: Ford Motor Company, 110 F.3d 954 (1997), to analyze the separability and irreparable loss prongs.

¶ 11 In Ford, the plaintiff in a products-liability action sought access to certain information that Ford claimed was privileged, i.e., attorney-client privilege and the work product doctrine. In addressing the separability prong under the collateral order doctrine, the appeals court considered, and rejected, the plaintiff's argument that a determination of the issue of privilege and work product would implicate the merits of the underlying dispute. The appeals court distinguished the substantive issue raised by the plaintiff's allegations that the vehicle was defectively designed because of a propensity to roll over from the issue of attorney-client privilege.

As we understand the merits of the underlying case, Kelly seeks to show what Ford knew about the alleged rollover propensity of the Bronco II, when it knew about this alleged propensity, and what it did about the alleged propensity. The contents of the documents will certainly shed some light on these questions. However, our resolution of the privilege and work product issues has nothing to do with them. We are not concerned at this juncture about what Ford knew, when it gained this knowledge, or what it did about it. Our inquiry largely involves questions of context—e.g., who prepared the relevant documents, when were they prepared, and what was their purpose. It involves content only insofar as we must ensure that the documents were prepared in certain contexts—e.g., do the documents contain legal advice or do they disclose legal strategies? We are not required, nor will we undertake, to resolve disputed questions of Ford's knowledge of and Ford's actions with respect to the alleged rollover propensity.

Ford, 110 F.3d at 958.

¶ 12 Likewise, our Supreme Court determined that the privilege issue raised in Ben could be addressed without analyzing the defendant's alleged negligence.

¶ 13 Regarding the irreparable loss prong, our Supreme Court quoted Ford for the proposition that "there is no effective means of reviewing after a final judgment an order requiring the production of putatively protected material." Ben, at 485, 729 A.2d at 552 (quoting Ford, 110 F.3d at 964).

¶ 14 As in Ben and Ford, the issues Lehman raised, namely, interests of justice and deliberative process privilege, can be addressed without the analysis of the alleged negligence and...