Kuwait & Gulf Link Transp. Co. v. John Doe

• Decision Date: 06 May 2014
• Citation: 92 A.3d 41,2014 PA Super 96
• Court: Pennsylvania Superior Court
• Parties: KUWAIT & GULF LINK TRANSPORT COMPANY, KGL Logistics, and KGL Transportation Company KSCC, v. John DOE (a.k.a. Scott Wilson), Agility Public Warehousing Company K.S.C. (a.k.a. Agility, f/k/a The Public Warehousing Company), Agility DGS Logistics Services Company K.S.C.C. (f.k.a. PWC Logistic Services Company K.S.C.C.) PWC Transport Company W.L.L., Agility DGS Holdings, Inc. (f.k.a. Agility Defense & Government Services, Inc.), Agility Defense & Government Services, Inc. (f.k.a. Taos Industries, Inc.), Agility International, Inc. Appeal of Agility DGS Holdings, Inc., Agility Defense Government Services, Inc. and Agility International, Inc. Kuwait & Gulf Link Transport Company, KGL Logistics, and KGL Transportation Company KSCC, v. John Doe (a.k.a. Scott Wilson), Agility Public Warehousing Company K.S.C., Agility DGS Logistics Services Company K.S.C.C., PWC Transport Company W.L.L., Agility DGS Holdings, Inc., Agility Defense and Government Services, Inc., and Agility International, Inc. Appeal of Agility Public Warehousing Company K.S.C., Agility DGS Logistics Services Company K.S.C.C., and PWC Transport Company W.L.L.

92 A.3d 41

2014 PA Super 96

KUWAIT & GULF LINK TRANSPORT COMPANY, KGL Logistics, and KGL Transportation Company KSCC,

v.John DOE (a.k.a. Scott Wilson), Agility Public Warehousing Company K.S.C. (a.k.a. Agility, f/k/a The Public Warehousing Company), Agility DGS Logistics Services Company K.S.C.C. (f.k.a. PWC Logistic Services Company K.S.C.C.) PWC Transport Company W.L.L., Agility DGS Holdings, Inc. (f.k.a. Agility Defense & Government Services, Inc.), Agility Defense & Government Services, Inc. (f.k.a. Taos Industries, Inc.), Agility International, Inc.

Appeal of Agility DGS Holdings, Inc., Agility Defense Government Services, Inc. and Agility International, Inc.

Kuwait & Gulf Link Transport Company, KGL Logistics, and KGL Transportation Company KSCC,

v.John Doe (a.k.a. Scott Wilson), Agility Public Warehousing Company K.S.C., Agility DGS Logistics Services Company K.S.C.C., PWC Transport Company W.L.L., Agility DGS Holdings, Inc., Agility Defense and Government Services, Inc., and Agility International, Inc.

Appeal of Agility Public Warehousing Company K.S.C., Agility DGS Logistics Services Company K.S.C.C., and PWC Transport Company W.L.L.

Superior Court of Pennsylvania.

Argued Feb. 25, 2014.

Filed May 6, 2014.

Alan M. Freeman and Allon Kedem, Washington, DC, for appellants.

Clifford J. Zatz, Washington, DC, for Kuwait & Gulf, KGL Logistics and KGL Transportation, appellees.

BEFORE: DONOHUE, STABILE and PLATT ^*, JJ.

OPINION BY DONOHUE, J.:

Agility Public Warehousing Co. K.S.C. (“PWC”), Agility DGS Logistics Services Co., K.S.C.C., PWC Transport Co., W.L.L., Agility DGS Holdings, Inc., Agility Defense Government Services, Inc., and Agility International, Inc. (collectively “Agility”), and John Doe appeal from the order entered on May 21, 2013 by the Court of Common Pleas of Cumberland County granting the motion of Kuwait & Gulf Link Transport Co., KGL Logistics, and KGL Transportation Co. K.S.C.C. (collectively “KGL”) to compel discovery responses by Agility concerning the identity of the sender of the allegedly defamatory letters signed with the pseudonym “Scott Wilson.” We vacate the trial court's order and remand with instructions.

The facts and procedural history in this matter are as follows. KGL is a family of Kuwaiti-based companies that provides shipping, transportation, warehousing, and logistics services to the United States Government in Kuwait and Southeast Asia. Agility is a family of logistics companies, including three of their separate, but wholly owned, subsidiaries that competes with KGL for government contracts.

In February 2011, the United States Government's Defense Logistics Agency (“DLA”) awarded a contract to KGL to operate a military storage and distribution depot in Kuwait. On March 10, 2011, Intermarkets Global (“Intermarkets”), a company not related to any party in this matter, protested the award of that contract to KGL. KGL alleges that on March 22, 2011 and March 24, 2011, a person under the pseudonym “Scott Wilson” sent two letters (“the Wilson Letters”) to contracting officers at the DLA and the United States Army Sustainment Command (“USASC”). The Wilson Letters informed the DLA and the USASC that KGL had violated the Comprehensive Iran Sanctions, Accountability, and Divestment Act (“CISADA”) by maintaining business relationships with Iranian entities and urged them to investigate this issue. The Wilson Letters also contained email chains in support of these allegations.

KGL alleges that Intermarkets supplemented its protest of the above-referenced contract with copies of the Wilson Letters, characterizing KGL as an irresponsible contractor. KGL asserts that it sustained losses and costs associated with defending this protest, but that it was able to get the protest dismissed, and that the DLA eventually awarded the contract to KGL. KGL also alleges that it competed for a “Heavy Lift 7” contract from the USASC and that the Wilson Letters affected the award of this contract because the USASC would not give the contract to KGL unless KGL addressed the Wilson Letters and proved that is was a responsible contractor. KGL again contends that it sustained losses and costs associated with addressing the USASC's concerns, but that it was able to provide the USASC with a satisfactory explanation and that it received the “Heavy Lift 7” contract.

On March 21, 2012, KGL filed suit against Agility and John Doe alleging liability for defamation, tortious interference with contractual and other business relationships, respondeat superior, conspiracy, aiding and abetting, and negligent supervision. KGL further alleged, and PWC admitted, that employees of PWC authored the Wilson Letters and were acting within the scope of their employment. KGL filed an amended complaint on June 14, 2012. On August 14, 2012 and September 4, 2012, Agility filed preliminary objections that the trial court overruled on November 15, 2012 and October 19, 2012, respectively.

On September 14, 2012, KGL served discovery requests on each known defendant, including interrogatories, requests for production of documents, and requests for admissions, each with the primary purpose of identifying “Scott Wilson.” Agility objected to these discovery requests based on its First Amendment right to speak anonymously and on Pilchesky v. Gatelli, 12 A.3d 430 (Pa.Super.2011), which Agility argued requires KGL to satisfy four requirements before it could obtain discovery identifying an anonymous or pseudonymous speaker. On December 4, 2012, KGL moved to strike Agility's objections to discovery requests and to compel discovery responses. On February 20, 2012, the trial court heard argument on this motion. Finally, on May 21, 2013, the trial court granted KGL's motion to strike Agility's objections to discovery requests and to compel discovery responses insofar as the objections relate to Pilchesky. In a brief memorandum provided with its order, the trial court gave the following rationale for its decision:

Today we deal with the issue of whether or not the objections of the defendants to plaintiffs' discovery requests ought to be sustained under the principles announced in Pilchesky v. Gatelli, 12 A.3d 430 (Pa.Super.2011). This case contains a framework for the First Amendment protection of anonymous speech. As noted in Lefkoe v. Jos. A. Bank Clothiers, Inc., 577 F.3d 240 [ (4th Cir.2009) ], our courts have ‘typically protected anonymity under the First Amendment when claimed in connection with literary, religious, or political speech.’ Id. at 578 [248]. We are satisfied that the speech at issue in this case is commercial speech as opposed to ‘literary, religious, or political.’ This is a close case, however, in light of the fact that the communication addresses itself to the award of a United States government contract.

Memorandum and Order, 5/21/13, at 1–2. Therefore, the trial court granted KGL's motion because it found that Pilchesky did not apply to the Wilson Letters. Id. The trial court ruled that the Wilson Letters were commercial speech, as opposed to “literary, religious, or political” speech, and that the First Amendment affords less protection to commercial speech. Id.

Agility then filed this appeal. Agility presents the following issue for our review:

1. Whether Appellees (Plaintiffs below) were required to satisfy the First Amendment test set forth in Pilchesky v. Gatelli, 12 A.3d 430 (Pa.Super.Ct.2011), before obtaining an order directing Appellants (Defendants below) to respond to discovery aimed at identifying a pseudonymous speaker and anyone who assisted him, who are collectively named as a “John Doe” defendant in this action?

Brief of Agility DGS Holding, Inc., Agility Defense Government Services, Inc., and Agility International [hereinafter “Agility Brief I”] at 4.

In general, appellate courts apply an abuse of discretion standard when reviewing an order relating to discovery. McNeil v. Jordan, 586 Pa. 413, 426–27, 894 A.2d 1260, 1268 (2006) (citations omitted). However, this case presents a pure question of law. This Court has long held that “questions of law are accorded full appellate review, and our consideration is plenary.” Id. (citations omitted). Therefore, the appropriate standard of review is de novo.Id.

Before addressing the question presented, we must determine whether the trial court's order is appealable. This issue of appealability is of primary importance because it affects this Court's jurisdiction over the case. See Pilchesky, 12 A.3d at 435 (citing In re Miscin, 885 A.2d 558, 561 (Pa.Super.2005)). Under the Pennsylvania Rules of Appellate Procedure, “[a]n appeal may be taken from (1) a final order ... (2) an interlocutory order by right or permission ... or (3) a collateral order[.]” Id. at 435 n. 6 (citations omitted). Rule 313(b), relating to collateral orders, provides that,

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). Pennsylvania courts have previously held that a trial court order compelling the disclosure of the identity of a John Doe defendant in a defamation action “raised a question entitled to collateral review.” Pilchesky, 12 A.3d at 436 (citing Melvin v. Doe, 575 Pa. 264, 269–70, 836 A.2d 42, 44–45 (2003)).

We find that Agility's claim is entitled to collateral review. In this case, the determination of whether Agility must reveal the identity of “Scott Wilson” is separable from the defamation claim and other causes of action. Whether or not Agility must reveal the identity of “Scott Wilson” is solely a legal question, requiring no consideration of whether the Wilson Letters were in fact defamatory. See Melvin, 575 Pa. at 269–70, 836 A.2d at 44–45; Pilchesky, 12 A.3d at 436. Additionally, the right involved is too...