National Railroad Passenger Corp. v. Fowler

• Citation: 788 A.2d 1053
• Parties: NATIONAL RAILROAD PASSENGER CORPORATION t/a and/or known as Amtrak, Petitioner, v. Mather FOWLER, a minor, by his parent and natural guardian, Tynia M. Fowler and Tynia M. Fowler, in her own right, Respondents. Mather Fowler, a minor, by his parent and natural guardian, Tynia M. Fowler and Tynia M. Fowler, in her own right, v. Concern-Professional Services for Children, Youth and Families; Borough of Parkesburg and National Railroad Passenger Corporation t/a and/or known as Amtrak. Appeal of: National Railroad Passenger Corporation (`Amtrak'). Mather Fowler, a minor by his parent and natural guardian, Tynia M. Fowler, and Tynia M. Fowler, in her own right, v. Concern-Professional Services for Children, Youth and Families; Borough of Parkesburg; and National Railroad Passenger Corporation t/a and a/k/a Amtrak. Appeal of: Concern-Professional Services for Children, Youth and Families.
• Decision Date: 21 November 2001
• Court: Commonwealth Court of Pennsylvania

788 A.2d 1053

NATIONAL RAILROAD PASSENGER CORPORATION t/a and/or known as Amtrak, Petitioner, v. Mather FOWLER, a minor, by his parent and natural guardian, Tynia M. Fowler and Tynia M. Fowler, in her own right, Respondents.

Mather Fowler, a minor, by his parent and natural guardian, Tynia M. Fowler and Tynia M. Fowler, in her own right, v. Concern-Professional Services for Children, Youth and Families; Borough of Parkesburg and National Railroad Passenger Corporation t/a and/or known as Amtrak.

Appeal of: National Railroad Passenger Corporation (`Amtrak').

Mather Fowler, a minor by his parent and natural guardian, Tynia M. Fowler, and Tynia M. Fowler, in her own right, v. Concern-Professional Services for Children, Youth and Families; Borough of Parkesburg; and National Railroad Passenger Corporation t/a and a/k/a Amtrak.

Appeal of: Concern-Professional Services for Children, Youth and Families.

Commonwealth Court of Pennsylvania.

Argued October 17, 2001.

Decided November 21, 2001.

Diane J. Ruccia, Newark, NJ, for petitioner/appellant.

Joseph C. Murray, Philadelphia, for respondents/appellees.

John F. Ledwith, Philadelphia, for appellee, Concern-Professional Services for Children, Youth and Families.

Before PELLEGRINI, J., FRIEDMAN, J., and RODGERS, Senior Judge. PELLEGRINI, Judge.

Before this Court are three consolidated appeals from discovery orders of the Court of Common Pleas of Chester County (trial court) involving the confidentiality of documents created by employees of Concern-Professional Services for Children, Youth and Families (Concern) and documents of the Delaware County Juvenile Court. The first appeal is by Concern from an order of the trial court denying its motion for a protective order. The second appeal is by National Railroad Passenger Corporation, a/k/a Amtrak (Amtrak), from two orders of the trial court denying its motion to subpoena records from the Delaware County Juvenile Court and denying its application to the trial court to include a certification allowing it to appeal from an interlocutory order.

These appeals arise from an incident on June 16, 1997, involving Mather Fowler (Mather). On that date, Concern, a residence for troubled youth that had custody of 14-year old Mather, took Mather to the Borough of Parkesburg to perform community service work. Mather was ordered to clean up the Parkesburg Bridge which was severely deteriorated and had holes in the surface with high voltage electric power lines running underneath. While performing the assigned activity, Mather fell through a hole in the bridge, made contact with a live power line, and was electrocuted. He allegedly suffered severe burns over his body, some of which necessitated amputating parts of his right foot.

I.

As a result of this accident, Mather's mother (Fowler) filed a complaint in the trial court against Concern on her son's behalf seeking damages for his injuries, claiming that Concern's negligence in allowing Mather to work on the bridge and failing to properly supervise his activities caused her son's injuries.¹ During discovery, Fowler served interrogatories and a request for production of documents on Concern, and when no answers to these discovery requests were received, Fowler filed a motion to compel answers. Concern filed responses to Fowler's discovery requests, along with objections, raising, inter alia, that the documents did not need to be produced or investigated because the documents were protected by the attorney-client privilege or the work-product privilege or both. The trial court, through the Honorable James P. MacElree, II, denied Fowler's motion as moot because Concern had filed the requested responses. Because Concern refused to provide all of the documents requested, Fowler then filed a motion to strike discovery responses and to compel more particular answers. Concern filed a timely response with objections, and on October 4, 1999, the trial court issued an order finding that Concern had waived its right to file a motion for a protective order because it did not timely file its request to the original production request and directing Concern to provide full disclosure within 20 days. Concern did not file an appeal from this order.

Despite the trial court's order overruling its objections, Concern provided supplemental responses that again raised the attorney-client privilege and work-product privilege to the requested information and redacted portions of the documents it produced.² Fowler then filed a motion for sanctions against Concern for violating the trial court's October 4, 1999, order. On February 4, 2000, Concern filed an answer to Fowler's motion, along with a motion for a protective order, "to prevent the disclosure of privileged and/or protected information and/or documentation as already provided and as indicated in Defendant Concern's Response to Plaintiff's Interrogatories and Request for Production of Documents Directed to Defendant Concern." By order dated May 16, 2000, the trial court, this time through Judge Cody, denied Concern's motion for a protective order.³

Concern then filed a motion for reconsideration which Judge Cody granted, and oral argument was ordered to produce the documents at issue to the trial court for an in camera review. After arguments and review of the documents, by order dated July 13, 2000, Judge Cody denied the motion for protective order and ordered Concern to provide complete and full disclosure of the documents without redactions to Fowler. Concern filed another motion for reconsideration arguing that the trial court erred in denying its motion for protective order because the redacted portions of the documents contained information protected by the attorney-client privilege, the work product doctrine and/or Pa. R.C.P. Nos. 4003.1, 4003.3 or 4011. Again, the trial court, through Judge Cody, disagreed, finding the documents were not privileged because the three Concern employees whom authored the documents were not clients of Concern's attorney. This appeal by Concern followed.

II.

The second appeal involves Amtrak whom Fowler also named as a defendant in her complaint as the alleged owner of the bridge. On November 11, 1999, during pre-trial discovery, Amtrak served notices of intent to serve subpoenas to the Custodian of Records of Delaware County Juvenile Court (Juvenile Court). Amtrak argued that it was entitled to the records because it needed to obtain relevant information regarding Mather's background, as well as his mental, emotional and psychological state prior to and after the accident, to determine whether all injuries alleged were related to the accident. It also argued that the records were relevant to Fowler's claims for diminished future earning capacity and loss of enjoyment of Mather's usual duties, life's pleasures and activities.

Fowler filed objections alleging that the documents requested were privileged under the Juvenile Act and 42 Pa.C.S. §§ 6307 and 6354. Amtrak filed a motion to quash Fowler's objections which the trial court denied by order dated August 2, 2000, because the production of the records at issue were unrelated to the burn injury in question.⁴ The trial court also found that Amtrak did not have a direct involvement with the Juvenile Court proceedings and did not have a legitimate interest in the criminal proceedings. Amtrak filed an application with the trial court asking it to amend its order to include language allowing for an interlocutory appeal by permission, but the trial court denied that application by order dated October 11, 2000. Amtrak then filed a petition for review with this Court from the trial court's order refusing to amend its order. Amtrak also filed a notice of appeal with the Superior Court appealing paragraph 2, footnote 1 of the trial court's August 2, 2000 order denying its motion to quash Fowler's objections to the Juvenile Court subpoena which transferred the matter to this Court. By order dated December 7, 2000, we consolidated the two cases and required the parties to brief the issue of whether the August 2, 2000 order pertaining to Amtrak was a collateral order before determining whether to address the merits of the appeal.⁵

III.

Initially, Fowler contends that Concern's appeal from the orders dated May 16, 2000 and July 13, 2000, that Judge Cody issued should be dismissed because it did not appeal from the October 4, 1999 order issued by Judge MacElree.⁶ Fowler contends that because Concern did not file an appeal from Judge MacElree's order, Judge Cody, a judge of equal jurisdiction, was without power to sustain the same objections or to grant a motion for reconsideration on the same issues that were presented before Judge MacElree. Concern, however, argues that Judge MacElree never found that it could not file a motion for a protective order, and the "law of the case" doctrine does not apply because the same issues were not presented before both judges. It argues that the issue before Judge MacElree dealt with Fowler's compelling of sufficient discovery responses, not with the examination of redacted information on documents claimed to be privileged and/or protected which fall outside the scope of discovery.

Contrary to Concern's argument, our review of Judge MacElree's order indicates that he did, indeed, determine that Concern had waived its right to file a motion for a protective order. In footnote 1 of his order, Judge MacElree explained:

With regard to the Request for Production of Documents, the request was served March 1, 1999. Concern did not provide answers and objections to the request for production until June 22, 1999 after the first motion to compel was filed on June 1, 1999. An objection to interrogatories or other discovery under Pa. R.C.P. 4006(a)(2) or an application for protective order under Pa. R.C.P. 4012 must be filed before the party seeking discovery has filed a motion for sanctions or other motion seeking to enforce

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