J-A26002-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LESLIE L. VAN EVERY, INDIVIDUALLY,          IN THE SUPERIOR COURT OF
AND AS THE PERSONAL                               PENNSYLVANIA
REPRESENTATIVE OF THE ESTATE OF
DAVID E. VAN EVERY, PLAINTIFF

                      v.

STEPAN AMBROZYAK, KLM EXPRESS,
INC., AND STEPHANIE J. KAUFFMAN,
DEFENDANTS
                     v.

CARGO TRANSPORTERS, INC., ABF
FREIGHT SYSTEMS, INC., DAVID L.
PERRY, PATRICK J. ANDERSON, FFE
TRANSPORTATION SERVICES, INC. AND
JOHN DOE, ADDITIONAL DEFENDANTS

APPEAL OF: FFE TRANSPORTATION                    No. 797 MDA 2017
SERVICES, INC.


              Appeal from the Order Entered April 12, 2017
          In the Court of Common Pleas of Cumberland County
                          Civil Division at No(s):
                                2014-01630
                                2015-06112
                                2016-00398
                                2016-00555
                                2016-00577
                                2016-00617



BEFORE: BOWES, OLSON, AND RANSOM, JJ.

MEMORANDUM BY BOWES, J.:                         FILED APRIL 20, 2018

     FFE Transportation Services, Inc. (“FFE”) appeals from the discovery

order compelling it to produce certain documents requested by plaintiff
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Leslie L. Van Every (“Van Every”), individually, and as the personal

representative of the Estate of David E. Van Every, which FFE claims are

privileged.1, 2 We reverse and remand.

        This consolidated action stems from the filing of several lawsuits

concerning a multi-vehicle accident which occurred on February 4, 2014, on

Interstate    76    (the    Pennsylvania       Turnpike)   in   Cumberland   County,

Pennsylvania. Van Every’s husband, David E. Van Every, died as a result of

injuries sustained in the accident. Van Every filed her complaint against FFE

on November 5, 2015. FFE retained the law firm of Pion, Nerone, Girman,

Winslow & Smith, P.C. (“Pion”) to handle its defense in the matter.

        In Van Every’s amended complaint, she alleges that an FFE tractor-

trailer driven by an unidentified FFE employee blocked lanes of traffic on

Interstate 76, causing the multi-vehicle accident. In its answer, FFE averred

that one of its drivers may have been operating a tractor-trailer on

____________________________________________


1   The remaining captioned-defendants are not parties to this appeal.
2 When a discovery order requires the production of materials that the
appealing party has asserted are privileged, Pa.R.A.P. 313 applies, and we
will accept jurisdiction. See Yocabet v. UPMC Presbyterian, 119 A.3d
1012, 1016 n.1 (Pa.Super. 2015); see also Pa.R.A.P. 313 (providing that an
appeal may be taken as of right from a collateral order “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.”).




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Interstate 76 near the location of the accident, but was unable to confirm

this fact.

      During discovery, Van Every served FFE with written discovery

requests, including the following requests for the production of documents:

      53. Any and all documents pertaining to the investigation
      conducted by FFE . . . to identify the driver of the subject FFE
      tractor and semi-trailer.

      54. Any and all documents pertaining to the investigation
      conducted by FFE . . . to identify the subject FFE tractor and
      semi-trailer.

Amended Complaint, ¶¶ 53, 54. In response, FFE objected to the production

of any privileged document, produced a privilege log wherein it identified

fifty-four withheld documents, and asserted that each document was

protected by the attorney-client privilege and/or the attorney work product

doctrine.

      Van Every filed a motion to compel FFE to produce the withheld

documents or, in the alternative, for the court to conduct an in camera

review.      Following briefing on the matter, the trial court ordered FFE to

produce the withheld documents for an in camera inspection. On April 12,

2017, the trial court determined that thirteen of the fifty-four documents

were privileged, and ordered FFE to produce the remaining forty-one

documents, which it found to be non-privileged. This timely appeal followed.

      Subsequent to the filing of its notice of appeal, FFE produced thirty-

four of the forty-one documents ordered for production by the trial court.

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J-A26002-17



FFE continues to withhold from production seven documents, Nos. 36-40 and

50-51. The seven documents consist of emails between a representative of

FFE and members of the Pion law firm, regarding their joint investigation of

the identity of the driver and tractor-trailer involved in the accident.

        On appeal, FFE raises the following issue for our review: “Whether the

trial court committed an error of law in compelling FFE to produce

documents protected by the attorney-client privilege and which are not

subject to any of the limited exceptions to disclosure?”3 Appellant’s brief at

5.

        Whether     the     attorney-client      privilege   protects        a     particular

communication is a question of law. See Clemens v. NCAA (In re Estate

of Paterno), 168 A.3d 187, 194 (Pa.Super. 2017).                       Accordingly, our

standard of review is de novo and our scope of review is plenary. Id.

        The attorney-client privilege was derived from the common law, and

later codified at 42 Pa.C.S. § 5928, which states: “In a civil matter counsel

shall    not   be    competent      or    permitted     to   testify    to       confidential

communications made to him by his client, nor shall the client be compelled
____________________________________________


3 In its privilege log, FFE asserted that documents Nos. 36-40 and 50-51
were protected by both the attorney-client privilege and the attorney work
product doctrine.      As FFE has abandoned its claim that the subject
documents are protected by the work product doctrine, that argument is not
before us. Nevertheless, Van Every devotes much of her brief to her
argument that the subject documents are not protected by the attorney
work product doctrine.



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J-A26002-17



to disclose the same, unless in either case this privilege is waived upon the

trial by the client.” We also note that Pennsylvania law disfavors evidentiary

privileges because they are in derogation of the truth.           See Red Vision

Sys., Inc. v. Nat'l Real Estate Info. Servs., L.P., 108 A.3d 54, 61

(Pa.Super. 2015).        Nonetheless, we “faithfully adhere to constitutional,

statutory, or common law privileges.”       McLaughlin v. Garden Spot Vill.,

144 A.3d 950, 953 (Pa.Super. 2016). This court does not have the power to

“order disclosure of materials that the legislature has explicitly directed be

kept confidential.” Id. (citation omitted).

      “[I]n Pennsylvania, the attorney-client privilege operates in a two-way

fashion   to   protect   confidential   client-to-attorney   or   attorney-to-client

communications made for the purpose of obtaining or providing professional

legal advice.” Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011). “The

attorney-client privilege is intended to foster candid communications

between counsel and client, so that counsel may provide legal advice based

upon the most complete information from the client.” Yocabet, supra, at

1027 (citation omitted). Since the purpose of the attorney-client privilege is

to create an atmosphere that will encourage confidence and dialogue

between attorney and client, the privilege is founded upon a policy extrinsic

to the protection of the fact-finding process. Id.

      The party asserting privilege bears the burden of producing facts

establishing proper invocation of the privilege.       See Yocabet, supra, at

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J-A26002-17



1019. For a party to invoke the privilege, the following elements must be

established:

      1) The asserted holder of the privilege is or sought to become a
         client.

      2) The person to whom the communication was made is a
         member of the bar of a court, or his subordinate.

      3) The communication relates to a fact of which the attorney
         was informed by his client, without the presence of strangers,
         for the purpose of securing either an opinion of law, legal
         services or assistance in a legal matter, and not for the
         purpose of committing a crime or tort.

      4) The privilege has been claimed and is not waived by the
         client.

Id. at 1027 (citation omitted).      When the client is a corporation, the

privilege extends to communications between its attorneys and the agents

or employees of the corporation authorized to act on its behalf. See Brown

v. Greyhound Lines, Inc., 142 A.3d 1, 9 (Pa.Super. 2016). In determining

whether a communication by a client to someone other than his attorney is

covered by the attorney-client privilege, courts have held that, as long as

the recipient of the information is an agent of the attorney and the

statement is made in confidence for the purpose of facilitating legal advice, it

is privileged. See Farrell v. Regola, 150 A.3d 87, 100 (Pa.Super. 2016);

see also Restatement (Third) of the Law Governing Lawyers § 70 (2000)

(providing that “privileged persons” include the client, the attorneys, and




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J-A26002-17



any of their agents that help facilitate attorney-client communications or the

legal representation.).

      However,    the     protection   of    the   privilege   extends   only   to

communications and not to facts. See Upjohn Co. v. United States, 449

U.S. 383, 395-96 (1981). As explained by the High Court,

      A fact is one thing and a communication concerning that fact is
      an entirely different thing. The client cannot be compelled to
      answer the question, “What did you say or write to the
      attorney?” but may not refuse to disclose any relevant fact
      within his knowledge merely because he incorporated a
      statement of such fact into his communication to his attorney.

Id. (citing Philadelphia v. Westinghouse Electric Corp., 205 F.Supp.

830, 831 (ED Pa. 1962)).

      The trial court determines whether the facts support the asserted

privilege.   See Law Office of Douglas T. Harris v. Phila. Waterfront

Partners, LP, 957 A.2d 1223, 1231 (Pa.Super. 2008) (citing 8 Wigmore,

Evidence, § 2322 (McNaughton rev. 1961)). “Once the invoking party has

made the appropriate proffer, then the burden shifts to the party seeking

disclosure to set forth facts showing that disclosure should be compelled

either because the privilege has been waived or because an exception to the

privilege applies.” Id.

      Turning to the communications at issue herein, FFE contends that,

after it was named as a defendant in the action, its defense counsel, Pion,

directed FFE to undertake an investigation as to the identity of the driver



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J-A26002-17



and the tractor-trailer involved in the accident. Pion also participated in the

investigation. FFE claims that this investigation is the subject of the seven

withheld documents, which consist of email communications between FFE

and attorneys, paralegals and staff of Pion, or among attorneys and

paralegals of Pion.

      FFE contends that it has established that the attorney-client privilege

applies to the emails because (1) FFE is the client of Pion; (2) the

communications were made after the commencement of Van Every’s

litigation against FFE; (3) the communications are between representatives

of FFE and attorneys, paralegals and staff of Pion, or among attorneys and

paralegals of Pion; (4) the communications relate to the investigation being

performed by FFE and Pion to identify the driver and tractor-trailer at the

scene of the accident; and (4) there has been no waiver of the privilege

because the emails were not shared with any third party.

      Each of the seven documents that FFE has withheld from production

consist of a printout from the email account of an attorney at Pion.

Document Nos. 36-40 and 51 each consist of a string of emails. Document

No. 50 consists of a single email.    Several of the documents involve the

same or substantially similar email chains. In its privilege log, FFE described

the withheld documents as follows:

      Document No. 36: “9/20/16. Email string between Mark Rhea (FFE),

Sandee Starks (FFE), John Pion, Ashley Travis (Pion paralegal), Tina Paluti

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J-A26002-17



(Pion paralegal) and Pion admin. staff re. discussion of investigation into

identity of driver.”4 Privilege log at 3.

       Document No. 37:            “9/20/16.      Email from Ashley Travis (Pion

paralegal) to John Pion and Tina Paluti (Pion paralegal) re: discussion of

investigation into identity of driver (includes entire email string contained in

Doc. #36).” Id.

       Document No. 38: “9/20/16. Email string between John Pion, Sandee

Starks (FFE), Ashley Travis (Pion paralegal), Tina Paluti (Pion paralegal), and

Pion admin. staff re: discussion of investigation into identity of driver

(includes entire email string contained in Doc. # 37).” Id.

       Document No. 39: “9/22/16. Email string between John Pion, Sandee

Starks (FFE), Mark Rhea (FFE), Ashley Travis (Pion paralegal), Tina Paluti

(Pion paralegal), and Pion admin. staff re: discussion of investigation into

identity of driver.”5 Id.

       Document No. 40: “9/27/16. Email string between John Pion, Sandee

Starks    (FFE),   and    Ashley    Travis     (Pion   paralegal)   re:   discussion   of


____________________________________________


4 The first email in the string, sent by Mark Rhea (FFE) to Sandee Starks
(FFE), is dated September 20, 2016. FFE claims that it produced this email
to Van Every. See Appellant’s brief at 18 n.6, 21.

5 The first email in this string, sent by Mark Rhea (FFE) to Sandee Starks
(FFE), is dated September 21, 2016. FFE claims that it produced this email
to Van Every. See Appellant’s brief at 18 n.6, 22.



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J-A26002-17



investigation into identity of driver (includes entire email string contained in

Doc. # 39).” Id.

       Document No. 50.         “12/14/16.     Email from Sandee Starks (FFE) to

John Pion and Bradley Sprout re: discussion of investigation into identity of

driver. Includes as an attachment a spreadsheet compiled by FFE as part of

investigation of identity of driver.”6 Id. at 4.

       Document No. 51. “12/14/16. Email from John Pion to Sandee Starks

(FFE), Bradley Sprout, and Pion admin. staff re: discussion of investigation

into identity of driver (includes emails contained in Doc. #50).” Id.

       Based on our in camera review of the seven withheld documents, we

conclude that the communications contained therein are protected by the

attorney-client privilege, and therefore subject to non-disclosure.     FFE is a

client of the Pion law firm.            Each of the email communications was

exchanged between FFE employees and Pion attorneys, paralegals and

administrative staff.      The email communications relate to facts which the

attorneys were informed of by FFE, without the presence of strangers, for

the purpose of securing assistance in a pending legal matter, and not for the
____________________________________________


6 Document No. 50 includes a list of the FFE dispatchers working on the date
of the accident. FFE asserts that it provided this list to Van Every. See
Appellant’ brief at 20, 21, 22. The spreadsheet attached to Document No.
50 contains a list of the tractor-trailers that entered the Pennsylvania
Turnpike on the date of the accident. FFE claims that it produced the
spreadsheet to Van Every. See Appellant’s brief at 18 n.6, 21, 22.




                                          - 10 -
J-A26002-17



purpose of committing a crime or tort.         Finally, the privilege was timely

invoked, and not waived.

        Bearing in mind that any “facts” pertaining to the accident included

within those communications are not protected, and therefore subject to

disclosure, we point out that FFE has produced to Van Every the email

exchanges between Sandee Starks and Mark Rhea dated September 20,

2016     and   September   21,   2016,    which     provided    factual   information

pertaining to the investigation. Additionally, FFE produced to Van Every the

list of FFE dispatchers included in Document Nos. 50 and 51, and the

spreadsheet of tractor-trailers attached to document No. 50. No additional

facts relative to the accident are contained in any of the remaining emails.

        While Van Every claims that FFE must disclose all communications

regarding such facts, this is simply not the law of Pennsylvania.                 The

attorney-client privilege attaches to communications between an attorney

and a client in preparation for litigation even if the discussion in the

interview concerns merely factual events. See Gould v. City of Aliquippa,

750 A.2d 934, 938 (Pa.Cmwlth. 2000) (noting that the Pennsylvania Rules of

Civil   Procedure   provide   ample      methods,    such      as   depositions   and




                                      - 11 -
J-A26002-17



interrogatories, by which litigants may properly discover available facts).7

Thus, we are satisfied that FFE has fulfilled its factual disclosure obligations.

       As FFE established that document Nos. 36-40 and 50-51 are protected

by the attorney-client privilege, the burden shifted to Van Every to prove

that FFE waived the privilege, or that an exception applies. In this regard,

Van Every alternatively contends that, if the documents are deemed

privileged, FFE waived the privilege by “voluntarily” producing thirty-four of

the forty-one documents subject to the trial court’s order compelling

production.     Van Every points to the privilege log, and argues that the

subject matter description of the thirty-four produced documents is the

same or similar to the description of document Nos. 36-40, and 50-51.

Citing United States v. Keystone Sanitation Co., Inc., 885 F.Supp 672

(M.D. Pa. 1994),8 Van Every claims that disclosure of privileged information

relating to a particular subject matter operates as a waiver of privilege as to

other confidential communications relating to the same subject matter.


____________________________________________


7 Although decisions by the Commonwealth Court are not binding on this
Court, they may be persuasive. See Estate of Brown, 30 A.3d 1200, 1204
n.2 (Pa.Super. 2011).

8 The only relevant authority cited by Van Every is non-binding federal
authority. See Eckman v. Erie Ins. Exchange, 21 A.3d 1203, 1207
(Pa.Super. 2011) (stating that we are not bound by federal court decisions,
other than the United States Supreme Court).




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     We    are   not   persuaded   by   Van   Every’s   argument,   given   the

circumstances of FFE’s production. FFE produced the thirty-four documents

pursuant to a court order compelling the production of those documents.

Thus, the production was not “voluntary,” and did not operate as a waiver of

the attorney-client privilege as to document Nos. 36-40 and 50-51.

     For the foregoing reasons, we conclude that document Nos. 36-40 and

50-51 are protected from disclosure by the attorney-client privilege, and the

trial court erred in compelling FFE to produce them.

     Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/20/18




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