NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P KHAAALID AMIR WILSON AND GABRIEL DESHAWN WILSON, CO- ADMINISTRATORS OF THE ESTATE OF TANYA RENEE WILSON, DECEASED v. IN THE SUPERIOR COURT OF PENNSYLVANIA U.S. SECURITY ASSOCIATES, INC., AND YVONNE HILLER BRYANT DALTON AND DAWN DALTON, H/W, CHRISTINE BLUMBER AND JAMES J. BLUMBER, H/W, CHER TUCKER, AND DAVID CIARLANTE AND LINDA CIARLANTE, H/W v. U.S. SECURITY ASSOCIATES, INC., AND YVONNE HILLER PAUL H. MASCIANTOINO, ESQUIRE ADMINISTRATOR OF THE ESTATE OF LATONYA BROWN, DECEASED v. U.S. SECURITY ASSOCIATES, INC., AND YVONNE HILLER No EDA 2013 Appeal from the Order Entered July 9, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 0653, December Term, 2011 BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J. * MEMORANDUM BY MUNDY, J.: FILED MAY 22, 2014 * Former Justice specially assigned to the Superior Court.

2 Appellant, U.S. Security Associates, Inc. (U.S. Security), appeals from the July 9, 2013 order denying its motion to stay proceedings and discovery in this negligence case, pending the outcome of the criminal appeal of Yvonne Hiller. After careful review, we quash this appeal. The trial court summarized the relevant facts and procedural history of this case as follows. Plaintiff Paul Masciantonio, Esquire (Masciantonio), Administrator of the Estate of Latonya Brown, commenced this suit by filing a Writ of Summons against [d]efendants Yvonne Hiller ( Hiller ) and U.S. Security Associates, Inc. ( U.S. Security ) on December 2, A [c]omplaint was filed on May 7, The [c]omplaint arises from a workplace shooting that occurred at the Kraft Bakery [on] September 9, The [c]omplaint alleges U.S. Security provided negligent security which resulted in wrongful death and negligent infliction of emotional distress. The matter before [the trial court wa]s U.S. Security s [m]otion to [s]tay [p]roceedings. U.S. Security moved for a stay after Hiller s counsel stated [that Hiller] will invoke the Fifth Amendment during [the pendency] of her criminal appeal. The [m]otion failed to offer a standard for relief sought. Hiller did not join this [m]otion. Masciantonio [filed an answer on] June 20, U.S. Security replied [on] July 5, [The trial court] inadvertently granted said [m]otion on June 24, 2013 as uncontested. Accordingly, on July 9, 2013, [the trial court] vacated [its] June 24, 2013 [o]rder and denied said [m]otion on the merits. U.S. Security requested [r]econsideration on July 10, Alternatively, U.S. Security requested a conference or appellate certification. U.S. Security, again, did not offer a standard for relief sought nor did it meet its burden. No joinders or - 2 -

3 answers were filed. [The trial court] denied the [m]otion for [r]econsideration, the request for a conference and to certify. Trial Court Opinion, 9/12/13, at 2 (internal citations omitted). On July 22, 2013, U.S. Security filed a timely notice of appeal. 1 On appeal, U.S. Security raises two issues for our review. A. Whether the [trial court] s July 9, 2013 [o]rder denying U.S. Security[ s] [m]otion to [s]tay [p]roceedings was a collateral order thus permitting it to be review[ed] by this Honorable Superior Court[?] B. Whether the [trial court] erred in denying U.S. Security[ s] [m]otion to [s]tay the [p]roceedings[?] U.S. Security s Brief at 3. U.S. Security s brief starts with the question of our appellate jurisdiction. U.S. Security avers that the trial court s July 9, 2013 order is appealable under the collateral order doctrine pursuant to Pennsylvania Rule of Appellate Procedure U.S. Security concedes no other basis for this Court to exercise its appellate jurisdiction. Therefore, we must quash this appeal unless the trial court s July 9, 2013 order is appealable as a collateral 1 The trial court did not order U.S. Security to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure Although U.S. Security sought certification in the trial court pursuant to Rule 312, U.S. Security has not challenged the trial court s denial of its request to certify an interlocutory appeal by permission under Rule

4 order under Rule 313. See Commonwealth v. Kennedy, 876 A.2d 939, 943 (Pa. 2005) (stating that [w]hether an order is appealable as a collateral order under Rule 313 is an issue of [an appellate court s] jurisdiction to entertain an appeal ). First promulgated in 1992, Rule 313 codified the collateral order doctrine. Rule 313 provides, in relevant part, as follows. Rule 313. Collateral Orders (a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court. (b) Definition. A collateral order is [1] an order separable from and collateral to the main cause of action [2] where the right involved is too important to be denied review and [3] 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 According to our Supreme Court, if an order satisfies Rule 313 s three-pronged test, then an appellate court may exercise appellate jurisdiction where the order is not final. Rae v. Pa. Funeral Directors Ass'n, 977 A.2d 1121, 1125 (Pa. 2009). To buttress the final order rule, however, the collateral order doctrine is to be construed narrowly, and every one of its three prongs [must] be clearly present before collateral appellate review is allowed. Id. at In adopting a narrow construction, [our Supreme Court] endeavor[ed] to avoid piecemeal - 4 -

5 determinations and the consequent protraction of litigation. Id. at 1129 (internal quotation marks and citation omitted). We elect to address the third prong of the collateral order doctrine first, as we conclude it disposes of this appeal. As noted above, the third prong of Rule 313(b) requires that, 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). Appellant s argue that [i]f forced to proceed without Hiller s testimony[,] and allowing the discovery period to lapse without securing her testimony[,] and allowing the trial to take place without Ms. Hiller s testimony being considered, U.S. Security[ s] ability to properly defend this matter will be significantly hampered. U.S. Security s Brief at 16. To satisfy this element, an issue must actually be lost if review is postponed. Orders that make a trial inconvenient for one party or introduce potential inefficiencies, including post-trial appeals of orders and subsequent retrials, are not considered as irreparably lost. An interest or issue must actually disappear due to the processes of trial. Keefer v. Keefer, 741 A.2d 808, 813 (Pa. Super. 1999) (citations omitted), disapproved on other grounds, Kincy v. Petro, 2 A.3d 490 (Pa. 2010). Based on our review of the certified record, we conclude that U.S. Security has failed to meet its burden under this prong of the collateral order doctrine. The record reveals that Hiller never asserted her Fifth Amendment - 5 -

6 rights. 3 Rather, her counsel informed U.S. Security that she will be advised to assert said rights if she were deposed. See U.S. Security s Motion to Stay Proceedings, 6/12/13, Exhibit A. U.S. Security, however, cancelled Hiller s deposition. Therefore, she never had the opportunity to assert any rights regarding the Fifth Amendment. As a result, U.S. Security s entire argument is premised on a hypothetical. Additionally, the certified record shows that on July 1, 2013, U.S. Security filed a motion to compel Hiller s deposition, which the trial court granted on July 16, See Trial Court Order, 7/16/13 at 2. The order contains a handwritten designation from the trial judge that Hiller can be [deposed] without prejudice to asserting all [Fifth] [A]mendment privileges. Id. The order also extended the deadline for discovery. Id. This order operates to allow U.S. Security to actually depose Hiller. At the time of said deposition, should Hiller assert her Fifth Amendment rights, all of the arguments that U.S. Security raises as to being able to defend its case, as well as Appellees arguments that Hiller waived her Fifth Amendment rights during the course of her criminal case, can be addressed by the trial court in 3 The Supreme Court has consistently held that a person s Fifth Amendment rights under the Self-Incrimination Clause can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, in which the witness reasonably believes that the information sought, or discoverable as a result of his testimony, could be used in a subsequent state or federal criminal proceeding. United States v. Balsys, 524 U.S. 666, 672 (1998) (internal quotation marks and citation omitted)

7 the first instance. If for any reason, U.S. Security is prevented from securing testimony from Hiller despite an attempt to do so, U.S. Security can seek another stay. 4 Based on these considerations, we conclude that U.S. Security has not satisfied the third prong of the collateral order doctrine. As stated above, in order to satisfy the irreparable loss prong of the collateral order doctrine, U.S. Security is required to show that the issue will actually disappear due to the processes of trial. Keefer, supra. However, in this case, U.S. Security unilaterally cancelled Hiller s deposition after being told that Hiller may assert her rights under the Self-Incrimination Clause of the Fifth Amendment. Therefore, we conclude U.S. Security s argument that a stay is required pending the outcome of Hiller s direct appeal is premised on a hypothetical. As a result, U.S. Security cannot show that its issue will actually disappear as the issue s circumstances, i.e., the inability to obtain Hiller s deposition testimony, do not yet exist. Id. Therefore, we need not consider the remaining two prongs. See Rae, supra at Based on the foregoing, we conclude that the trial court s July 9, 2013 order is not appealable under Rule 313 as a collateral order. Accordingly, we conclude that we are without jurisdiction, and quash this appeal. Appeal quashed. 4 We express no opinion as to whether an order denying such a second motion would be subject to immediate appeal under Rule

8 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/22/