Law Office of Harris v. Phi. Waterfront, 2872 EDA 2007
| Decision Date | 22 September 2008 |
| Docket Number | No. 2873 EDA 2007,No. 2872 EDA 2007,2872 EDA 2007,2873 EDA 2007 |
| Citation | 957 A.2d 1223 |
| Parties | The LAW OFFICE OF DOUGLAS T. HARRIS, ESQUIRE, and Douglas T. Harris, Esquire, Appellees v. PHILADELPHIA WATERFRONT PARTNERS, LP and Charles L. Kamps III and Scott A. Blow and Patrick T. Hanley and Todd Kamps, Appellants. Philadelphia Waterfront Partners, LP and Philadelphia Waterfront Development, LLC, Charles L. Kamps III and Scott A. Blow and Patrick T. Hanley, Appellants v. Churchill Development Group, LLC, Churchill Residential Development LP, Churchill Commercial Development, LP, Joseph F. Logue, Jr. and Douglas T. Harris, Esquire, Appellees. |
| Court | Pennsylvania Superior Court |
Henry E. Van Blunk, Newton, for appellants.
Carl G. Roberts, Philadelphia, for Logue and Churchill, appellees.
James R. Kahn, Philadelphia, for Law Office, appellee.
¶ 1 At 2872 EDA 2007, Philadelphia Waterfront Partners, LP (PWP), Charles L. Kamps III, Scott A. Blow, Patrick T. Hanley, and Todd Kamps appeal from the October 22, 2007, Order granting The Law Office of Douglas T. Harris, Esquire and Douglas T. Harris, Esquire's motion to compel and directing production of aforementioned appellants' Blow and Hanley's broken computers for discovery. At 2873 EDA 2007, PWP, Philadelphia Waterfront Development, LLC (PWD), Kamps III, Blow, and Hanley appeal from a companion Order, also dated October 22, 2007, granting Harris's motion to compel and also directing production of Blow and Hanley's broken computers. On December 10, 2007, we granted PWP, et al.'s application for consolidation.
¶ 2 In May of 2004, the corporate predecessor to PWP obtained an option to purchase approximately 60 acres of property along 7777 State Road in Philadelphia from a third-party for $8 million. Seven months later, in December of 2004, PWP's predecessor entered into a collateral agreement with a second third-party. Pursuant to the terms of the agreement, in exchange for the third-party agreeing to convey approximately 40 acres of land abutting 7777 State Road to them, PWP's predecessor agreed to convey to the third-party approximately 28 of the 60 acres of land subject to the option and roughly $1.7 million in cash. After obtaining financing, PWP, which had been assigned its predecessor's interests in February of 2005, began to prepare the land it ultimately planned to obtain along 7777 State Road for development.
¶ 3 In October of 2005, PWP hired appellee Harris as counsel. Harris immediately began searching for investors with the wherewithal to assist PWP in exercising its $8 million purchase option. Eventually, Harris introduced PWP to appellee Logue, who expressed an interest in providing financing. Beginning in December of 2005, PWP and appellee Churchill Development Group (CDG), a business entity controlled by Logue, began negotiating ways in which CDG could exercise PWP's $8 million option. When these negotiations fell through, the parties' amicable business relationship came to an abrupt end.
¶ 4 On April 10, 2007, appellants PWP, PWD, Kamps III, Blow, and Hanley filed a complaint seeking both monetary and equitable relief and raising claims for fraudulent conveyance, constructive trust, "dissipation of collateral," breach of fiduciary duty, civil conspiracy, and breach of contract. The complaint named CDG, Churchill Residential Development, LP, Churchill Commercial Development, LP— collectively referred to hereinafter as the "Churchill Entities"—Logue, and Harris as defendants. On June 21, 2007, appellee Harris, doing business as The Law Office of Douglas T. Harris, Esquire, filed his own complaint. The complaint raised claims for anticipatory breach of contract, equitable estoppel, and unjust enrichment against Kamps III, Blow and Hanley; a claim for slander and libel per se against PWP, Kamps III, Blow, and Hanley; a second claim for slander per se against Kamps III; a claim for intentional infliction of emotional distress against Kamps III, Blow, Hanley, and Kamps; and, finally, a claim for civil conspiracy against PWP, Kamps III, Blow, Hanley, and Kamps.
¶ 5 At some point during the summer of 2007, Harris propounded a request for the production of documents on appellants. Rule 1925(a) Opinion, Bernstein, J., 12/14/07, at 1. On August 27, 2007, a consent Order was issued directing appellants "to provide full and complete verified answers to . . . [Harris's] Request for Production of Documents within ten days." Id. In the Order, the trial court noted: "[Appellants] agreed to produce and were ordered to produce not later than September 6th all e-mails and other documents from the computers of [appellants] Scott Blow and Patrick Hanley." Id. (emphasis added).1 The trial court further noted that appellants did not object to the production contemplated by this Order at any time. Id. at 1-2.
¶ 6 Appellants, nonetheless, failed to produce the e-mails and documents and at some point during the summer of 2007, Harris filed a motion to compel. On October 22, 2007, the trial court held a hearing on Harris's motion during which the following exchange transpired:
The Court: Okay. Counsel, did you agree to an Order to produce things ten days after August 27th?
Appellants' Counsel: Your Honor, I believe [co-counsel] did.
The Court: Has it been complied with?
Counsel: I believe so, except for, as you said, the hardware, which were the two computers, the first of which became inoperable in November of '06 before any litigation in this matter; the second, just a few months ago. We have the hardware. We would produce it, but for the possibility that there is attorney/client privileged information on the hard drive.
The Court: Well, you can't figure that out, can you?
Counsel: There are technicians working on both the computers currently.
The Court: Well how does a computer break?
Counsel: I'm sorry?
The Court: How does a computer break?
Counsel: Your Honor, I'm not a computer expert. I couldn't tell you.
The Court: Well, did you ask the technician computer experts before you came into court to represent that it was broken?
Counsel: I know the second computer was a victim of a virus. I don't know how it was acquired.
The Court: Well, they have a right to the information, so how—what Order do you w[a]nt me to enter to enforce the Order that you agreed upon August 27th?
Counsel: Right. We can produce the computers.
The Court: You can?
Counsel: We can.
The Court: Okay. When do you want the computers, [Harris's counsel]?
Harris' Counsel: Within five days.
The Court: Within five days.
Appellants' Counsel: That's fine with me.
The Court: Motion is granted . . . Plaintiffs are directed to produce all e-mails and other documents from the computers of plaintiffs Scott Blow and Patrick Hanley within ten days.
N.T., Motions Hearing, 10/22/07, at 12-14.
¶ 7 Subsequently, the Court entered the two Orders subject of this appeal and timely notices of appeal followed. On November 1, 2007, the trial court entered a Rule 1925(b) Order at each docket number directing appellants to file a concise statement of matters complained of on appeal. See generally, Pa.R.A.P.1925, Opinion in Support of Order. Appellants complied with the trial court's directives in timely fashion. On November 13, 2007, Harris filed motions to quash the appeals. We subsequently issued Orders denying the motions without prejudice to Harris's ability to raise the issue of our jurisdiction later in the proceedings; Harris does so in his appellate brief. On December 14, 2007, the trial court issued a Rule 1925(a) Opinion discussing its reasons for granting Harris's motions to compel.
¶ 8 Before addressing the merits of this appeal, we must first resolve the question of whether we have jurisdiction to do so. Appellees contend this consolidated appeal was inappropriately taken from two interlocutory and unappealable Orders. See generally, Pa.R.A.P. 341, Final Orders; Generally, (b) Definition of final order. Appellees further contend they offered appellants the opportunity to hire a third-party vendor to compile a list of documents contained in the computers so appellants could raise informed objections to any documents subject to the attorney-client privilege.
¶ 9 Appellants counter by invoking the collateral order doctrine. See generally, Pa.R.A.P. 313, Collateral Orders, (b) Definition. Appellants also reject appellees' proposal to hire a third-party vendor and, in doing so, note that allowing a third-party to view privileged information on the computers would result in waiver of the attorney-client privilege with respect to the documents viewed. See e.g., Carbis Walker, LLP v. Hill, Barth & King, LLC, 930 A.2d 573, 579 (Pa.Super.2007), citing Bonds v. Bonds, 455 Pa.Super. 610, 689 A.2d 275, 277 (1997).
¶ 10 This Court recently discussed the collateral order doctrine and its application to discovery orders compelling the production of documents:
In order for an interlocutory order to be deemed collateral, there must be an order collateral to the main cause of action; the right involved must be too important for review to be denied; and the question presented must be such that if review is postponed until final judgment the claim will be irreparably lost. Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547, 550 (1999), citing Pa.R.A.P. 313(b). A discovery order is collateral only when it is separate and distinct from the underlying cause of action. Id. at 551. In determining whether the right involved is too important to be denied review, it must be determined whether the right is deeply rooted in public policy such that it goes beyond the controversy at hand. Id. at 552. Finally, there must be no effective means of review available after an Order requiring the production of documents is reduced to judgment. Id., citing Kelly v. Ford Motor Co., 110 F.3d 954, 964 (3d. Cir.1997).
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