J-A01038-17
                             2017 PA Super 111

PHILIP A. IGNELZI, INDIVIDUALLY,          :    IN THE SUPERIOR COURT OF
PHILIP A. IGNELZI AND MARIANNE            :          PENNSYLVANIA
IGNELZI, HUSBAND AND WIFE                 :
                                          :
                    v.                    :
                                          :
OGG, CORDES, MURPHY AND IGNELZI,          :
LLP; GARY J. OGG; SAMUEL J.               :
CORDES; MICHAEL A. MURPHY,                :
INDIVIDUALLY; MICHAEL A. MURPHY           :
AND REBECCA MURPHY, HUSBAND               :
AND WIFE; OGG, MURPHY, AND                :
PERKOSKY, LLP; JOHN D. PERKOSKY;          :
AND ESQUIRE REALTY ASSOCIATES             :
                                          :
APPEAL OF: GARY J. OGG, MICHAEL A.        :
MURPHY AND REBECCA MURPHY, OGG,           :
MURPHY AND PERKOSKY, LLP, AND             :
JOHN D. PERKOSKY                          :     No. 971 WDA 2016

                 Appeal from the Order Entered May 20, 2016,
              in the Court of Common Pleas of Allegheny County,
                     Civil Division at No(s): GD 11-022449

BEFORE:     FORD ELLIOTT, P.J.E., BOWES, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:              FILED APRIL 19, 2017

     Gary J. Ogg, Michael A. Murphy, Rebecca Murphy, John D. Perkosky,

and Ogg, Murphy, and Perkosky, LLP (OMP) (collectively, Appellants) appeal

from the discovery order entered May 20, 2016, which granted in part and

denied in part their motion for protective order.1 After review, we quash this

appeal.




1
  After recusal of the entire bench of the Allegheny County Court of Common
Pleas, Senior Judge Eugene E. Fike, II, was appointed to hear this case.

*Retired Senior Judge assigned to the Superior Court.
J-A01038-17


      This litigation arises from a dispute among Phillip A. Ignelzi, his former

law firm, Ogg, Cordes, Murphy, and Ignelzi, LLP (OCMI), and partners, Ogg,

Cordes, and Michael Murphy. In November of 2009, Ignelzi was elected as a

judge of the Court of Common Pleas of Allegheny County. Accordingly, he

could no longer be a partner of OCMI and the law firm began dissolution.

      Ogg, Murphy, and an associate, Perkosky, formed a new law firm,

OMP. Cordes formed his own, separate law firm. The parties attempted to

negotiate a settlement as to what the former partners would pay Ignelzi, but

they were unable to reach an amicable resolution.       Thus, on October 31,

2011, Ignelzi filed the instant lawsuit alleging, inter alia, breach of contract

and violations of the Uniform Partnership Act (UPA), 15 Pa.C.S. §§ 8301-

8365.2

      As this Court pointed out previously, “[t]he heart of the parties’

dispute in this case is Ignelzi’s demand for his partnership share of any

contingent fee cases that conclude after the dissolution of OCMI.” Ignelzi v.

Ogg, Cordes, Murphy and Ignelzi, LLP, 78 A.3d 1111, 1114 (Pa. Super.

2013) (Ignelzi I).3 Ignelzi sought discovery and requested the following, in

relevant part.


2
  This version of the UPA was repealed, effective February 21, 2017, and
replaced by 15 Pa.C.S. §§ 8411-8486.
3
  This Court first considered this case after the trial court granted Ignelzi’s
March 29, 2012 petition filed pursuant to section 8332 of the UPA for access
to accounting information from both OCMI and OMP. This Court held that
“the trial court erred in entering [an] order [permitting access to ledgers,

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            1. Client lists for all claims or cases that the partnership of
      [OCMI], or any of its partners, had accepted, or had begun to
      review for acceptance, as of December 31, 2009.

            2. Ledgers, books, records and client cards for any claims
      or cases that the partnership of [OCMI] or any of its partners,
      had accepted or begun to review for acceptance, as of December
      31, 2009.

            3. Bookkeepers’ summaries for 2006 through 2009.

Ignelzi’s Brief at Exhibit A (Plaintiffs’ First Request for Production of

Documents at 6-7).4

      In response to the discovery request, Appellants filed a motion for

protective order.   In that motion, Appellants argued that based upon this

Court’s prior rulings, Ignelzi was not entitled to the aforementioned

information.   Specifically, they argued that this Court’s “December 2014

[order] essentially sets up a date-certain valuation being the date [Ignelzi]


books, records, and client cards for cases accepted by OCMI or any partners
prior to December 31, 2009,] prior to litigation of the underlying facts
resolving the parameters of the pre-existing partnership agreement or
course of conduct between OCMI and prior departing law partners.” Ignelzi
I, 78 A.3d at 1115.

      After that appeal, the trial court concluded that the partners did not
have an express agreement about how shares for contingent fee cases were
to be distributed in the event a partner left the firm. Thus, the trial court
limited Ignelzi’s claims accordingly, and Ignelzi’s claim for a share of these
cases was limited to his action under the UPA. See Order, 12/23/2014.
4
  It does not appear that the First Request for Production of Documents is
contained in the certified record on appeal. “Our law is unequivocal that the
responsibility rests upon the appellant to ensure that the record certified on
appeal is complete in the sense that it contains all of the materials necessary
for the reviewing court to perform its duty.” Commonwealth v. Preston,
904 A.2d 1, 7 (Pa. Super. 2006).


                                      -3-
J-A01038-17


left OCMI.” Motion for Protective Order, 9/1/2015, at ¶ 18. Appellants went

on to argue that based on prior holdings of this Court,

      the value of work performed by Judge Ignelzi had no
      ascertainable value as of that date and discovery related to such
      matters is not warranted as it is overly broad, unduly
      burdensome, not likely to lead to discoverable material, violated
      the law of the case and would compel OMP to violate the Rules of
      Ethics. Further given the confidential client information at risk,
      [Appellants] simply cannot turn over all files as [Ignelzi’s]
      pending discovery requests demand.

Id. at ¶ 20.5

      After argument, the trial court issued a ruling which granted in part

and denied in part Appellants’ motion for protective order.        The order

provided:

           It is ORDERED that the motion[ is] granted in part and
      denied in part as follows:

      1. The motion[ is] denied to the extent that, to the extent not
      provided previously, Ogg, Murphy and Cordes shall produce to []
      Ignelzi, the documents identified in paragraphs [1 and 3], within
      30 days after the date this order is entered.

      2. Having concluded that, because of the breadth and all-
      encompassing nature of the request contained in paragraph 2 [],
      the motion[ is] granted with respect to the documents requested
      in paragraph 2 [].

      3. To ensure confidentiality, Ignelzi shall redact the documents
      to be produced pursuant to this order before being shared with

5
  We are compelled to point out that our review of Ignelzi I does not reveal
any language by this Court that supports Appellants’ interpretation of that
opinion. In fact, the opinion goes out of its way to acknowledge that
“[l]awyers in private practice routinely become judges and payment of
compensation commonly remains outstanding after the former lawyer takes
the bench.” Ignelzi I, 78 A.3d at 1117. This Court went on to cite an Ethics
Opinion discussing how such a matter should be handled.

                                     -4-
J-A01038-17


     counsel.   Ignelzi shall assign a number to each client and
     substitute the number in place of the client’s name, with the
     number to be used in place of the client’s name in further
     proceedings.     All documents and information produced or
     disclosed shall remain confidential, shall be used only as
     necessary in this litigation, will not be filed of record without
     prior court approval, and will be disclosed only to Ignelzi,
     Cordes, Murphy and their counsel, and to no other person
     without prior court approval.

     4.   The court is of the opinion that this order involves a
     controlling question of law as to which there is a substantial
     ground for difference of opinion and that an immediate appeal
     from this order will materially advance the ultimate termination
     of the matter.

Order, 5/20/2016 (unnecessary capitalization omitted). Moreover, the trial

court pointed out that with respect to the information in paragraph 2 of the

discovery request, it is denied “without prejudice to future discovery that

appropriately narrows the inquiry to coincide with the parameters of

permissible discovery.” Trial Court Opinion, 5/20/2016, at 15.

     On June 22, 2016, Appellants filed a notice of appeal. 6     Before we

reach the substantive issues in this appeal, we consider the appealability of


6
  Appellants’ appeal was due to be filed in 30 days from the entry of the
order, or no later than June 20, 2016. See Pa.R.A.P. 903(a). Therefore, this
appeal, filed on June 22, 2016, appears to be untimely. However,

     Rule of Appellate Procedure 108(b) designates the date of entry
     of an order as “the day on which the clerk makes the notation in
     the docket that notice of entry of the order has been given as
     required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b) (emphasis
     added). Our Supreme Court has held that “an order is not
     appealable until it is entered on the docket with the required
     notation that appropriate notice has been given.” Frazier
     v. City of Philadelphia, [] 735 A.2d 113, 115 ([Pa.] 1999)
     (emphasis added). Where there is no indication on the docket

                                    -5-
J-A01038-17


the May 20, 2016 order. See In re Miscin, 885 A.2d 558, 561 (Pa. Super.

2005) (“We may examine the issue of appealability sua sponte because it

affects the Court’s jurisdiction over the case.”).7

        This Court has jurisdiction over final orders. The definition of a final

order is provided in Rule 341 of the Pennsylvania Rules of Appellate

Procedure. “Rule 341 is fundamental to the exercise of jurisdiction by this

court.” Prelude, Inc. v. Jorcyk, 695 A.2d 422, 424 (Pa. Super. 1997) (en

banc). Rule 341 provides, in relevant part, as follows.

        (b)   Definition of final order.--A final order is any order that:

              (1)   disposes of all claims and of all parties; or

              (2)   RESCINDED

              (3)   is entered as a final order pursuant to paragraph (c)
                    of this rule.



        that Rule 236(b) notice has been given, then the appeal period
        has not started to run. Id. [] at 115. Our Supreme Court has
        expressly held that this is a bright-line rule, to be interpreted
        strictly. That the appealing party did indeed receive notice does
        not alter the rule that the 30–day appeal period is not triggered
        until the clerk makes a notation on the docket that notice of
        entry of the order has been given.

In re L.M., 923 A.2d 505, 508–09 (Pa. Super. 2007) (emphasis in original).
Here, there is no notation on the docket that the Rule 236(b) notice was
ever given. Accordingly, the appeal period never started to run, and
therefore this appeal was not filed untimely. See also Vertical Res., Inc. v.
Bramlett, 837 A.2d 1193, 1199 (Pa. Super. 2003) (holding that even where
Rule 236(b) notice was never sent, “in the interest of judicial economy, we
will regard as done what should have been done and consider the notice as
having been mailed”).
7
    Moreover, Ignelzi has raised the issue of the appealability of this order.

                                        -6-
J-A01038-17


      (c)   Determination of finality.--When more than one claim
      for relief is presented in an action, whether as a claim,
      counterclaim, cross-claim, or third-party claim or when multiple
      parties are involved, the trial court or other government unit
      may enter a final order as to one or more but fewer than all of
      the claims and parties only upon an express determination that
      an immediate appeal would facilitate resolution of the entire
      case. Such an order becomes appealable when entered. In the
      absence of such a determination and entry of a final order, any
      order or other form of decision that adjudicates fewer than all
      the claims and parties shall not constitute a final order.

Pa.R.A.P. 341. See also 42 Pa.C.S. § 742 (“The Superior Court shall have

exclusive appellate jurisdiction of all appeals from final orders of the courts

of common pleas….”).

      Instantly, the trial court added language in paragraph 4 of its order

that is consistent with Pa.R.A.P. 341(c). However, this Court has held that

“Rule 341(c) certification, under the clear language of the rule, is available

only to ‘final’ orders disposing of one but fewer than all parties or causes of

action.” F.D.P. v. Ferrara, 804 A.2d 1221, 1226 (Pa. Super. 2002).

“[C]ertification under Rule 341(c) was designed to allow for an immediate

appeal of a ‘final’ order relating to [fewer] than all parties or [fewer] than all

claims. In other words, it applies to orders dismissing parties and dismissing

claims.” Id. at 1226-27.

      The discovery order in this case, which merely granted in part and

denied in part Appellants’ motion for a protective order, dismissed neither a

party nor a claim.       Accordingly, despite the trial court’s Rule 341(c)

certification, this order is not appealable under the clear language of the



                                      -7-
J-A01038-17


rule. Thus, we do not have jurisdiction to entertain this appeal pursuant to

Pa.R.A.P. 341.

      We now consider other potential bases for this Court’s jurisdiction.8

First, we examine our jurisdiction pursuant to Pa.R.A.P. 313, which governs

collateral orders. In doing so, we point out that “This Court’s review … is

plenary, since determining the appropriate boundaries of collateral order

jurisdiction entails resolution of a question of law.” Pridgen v. Parker

Hannifin Corp., 588 Pa. 405, 419 (2006).

             “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). “[T]he
      collateral order doctrine is a specialized, practical application of
      the general rule that only final orders are appealable as of right.”
      Melvin v. Doe, [] 836 A.2d 42, 46–47 ([Pa.] 2003). “Thus, Rule
      313 must be interpreted narrowly, and the requirements for an
      appealable collateral order remain stringent in order to prevent
      undue corrosion of the final order rule.” Id. at 47. “To that end,
      each prong of the collateral order doctrine must be clearly
      present before an order may be considered collateral.” Id.

Meyer-Chatfield Corp. v. Bank Fin. Servs. Grp., 143 A.3d 930, 936 (Pa.

Super. 2016) (some citations omitted). “[W]here an order satisfies Rule

313’s three-pronged test, we may exercise appellate jurisdiction where the

order is not final. If the test is not met, however, and in the absence of

another exception to the final order rule, we have no jurisdiction to consider



8
  See Appellants’ Brief at 1 (citing Pa.R.A.P. 313 (collateral orders) and
Pa.R.A.P. 1311 (interlocutory appeals by permission)).

                                     -8-
J-A01038-17


an appeal of such an order.” Rae v. Pennsylvania Funeral Directors

Ass’n, 977 A.2d 1121, 1125 (Pa. 2009).

      “Generally, discovery orders are deemed interlocutory and not

immediately appealable, because they do not dispose of the litigation. On

the other hand, discovery orders requiring disclosure of privileged materials

generally are appealable under Rule 313 where the issue of privilege is

separable from the underlying issue.” Meyer-Chatfield, 143 A.3d at

936 (emphasis added).

             As to separability, [the Supreme] Court has adopted a
      practical     analysis     recognizing    that     some     potential
      interrelationship between merits issues and the question sought
      to be raised in the interlocutory appeal is tolerable. [] [See]
      Johnson v. Jones, 515 U.S. [304,] 314 [(1995)] [] (explaining
      that a claim is sufficiently separate from the underlying issues
      for purposes of collateral order review if it “is conceptually
      distinct from the merits of plaintiff’s claim,” that is, where, even
      if “practically intertwined with the merits, [it] nonetheless raises
      a question that is significantly different from the questions
      underlying plaintiff’s claim on the merits” (citations omitted)).

Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 433 (Pa. 2006).               We

have held that “[a]n order is not separable if the matter being reviewed has

the potential to resolve an issue in the case.” Jacksonian v. Temple Univ.

Health Sys. Found., 862 A.2d 1275, 1279 (Pa. Super. 2004).

      Instantly, Appellants argue that “the dispositive question [in this

appeal] is whether the contents of confidential, privileged legal files in which

the clients of [OMP] and or [Cordes] have a proprietary interest should be

disclosed, without their consent or even notice.” Appellants’ Reply Brief at 3



                                      -9-
J-A01038-17


(emphasis removed).      According to Appellants, “if the [o]rder is not

reversed, [Ignelzi] will receive unfettered access to files of hundreds of

[Appellants’] clients, the overwhelming majority of whom [Ignelzi] has never

had any involvement.”9 Id. at 4.

       In other words, Appellants disagree with what they see as the

underlying premise of the trial court’s order, that Ignelzi may eventually be

entitled to a recovery on contingent fee cases that were not resolved prior to

Ignelzi’s departure. In fact, Appellants devote the majority of their brief on

appeal to arguing why Ignelzi is not entitled to a recovery in this case, not

arguing why Ignelzi should not be entitled to review portions of confidential

client files.

       Appellants argue that “an interest in a contingent matter must [be]

calculated on a specific date.” Appellants’ Brief at 19.   Appellants suggest

that based on this interpretation of the law, if a contingent fee matter had

not been resolved prior to Ignelzi’s departure in December 2009, its value to

him was zero and has no effect on a partnership valuation.       Additionally,

Appellants argue that as a matter of public policy, a partner of a law firm

who becomes a judge should not be entitled to collect a partnership interest




9
  It should be noted that Appellants have not even been ordered to turn over
these files. See Trial Court Opinion, 5/20/2016, at 15. However, the trial
court left the door open to Appellants turning over at least some portions of
these files if Ignelzi “appropriately narrows the inquiry.” Id.


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J-A01038-17


from contingent matters that were not resolved prior to his departure. Id. at

40-46.

      Our conclusion with respect to any or all of the aforementioned issues

has the potential to resolve the primary issue in the case, whether Ignelzi is

entitled to “his partnership share of any contingent fee cases that conclude

after the dissolution of OCMI.” See Ignelzi I, 78 A.3d at 1114.     If we were

to determine that the contingency fee cases that were not resolved had no

value in December of 2009, then Ignelzi would not be entitled to any money

and the case would end. In addition, if we were to determine that a sitting

judge is not entitled to collect money from his or her former law firm, again,

Appellants could not be ordered to pay Ignelzi any amount, and the case

would end. Because Appellants are trying to litigate these issues through an

appeal from a discovery order, we hold that this order does not satisfy the

separability prong of the collateral order doctrine and we lack jurisdiction to

entertain this appeal.10



10
    Appellants assert several additional bases for why Ignelzi is not entitled
to this information, and eventually a recovery in this matter. Appellants’
Brief at 23-39.     First, Appellants invoke several Rules of Professional
Conduct: Pa.R.P.C. 5.4 (regarding sharing fees with a nonlawyer), 1.5
(regarding lawyers dividing fees with other lawyers), and 1.6 (regarding
confidentiality). However, “the Supreme Court has held that the Rules of
Professional Conduct do not have the effect of substantive law but, instead,
are to be employed in disciplinary proceedings.” In re Adoption of M.M.H.,
981 A.2d 261, 272 (Pa. Super. 2009). “They do not govern or affect judicial
application of either the attorney-client or work product privilege.” In re
Estate of Wood, 818 A.2d 568, 573 (Pa. Super. 2003).


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J-A01038-17


      Even if we were to conclude that this order is separable, this matter

would still not be ripe for our review. In T.M. v. Elwyn, 950 A.2d 1050 (Pa.

Super. 2008), this Court set forth the requirements for a party asserting the

attorney-client privilege as a basis to withhold discovery. In that case, the

plaintiff was a student at a school for students with mental health and

behavioral issues. The plaintiff filed a lawsuit against the school, asserting

that a school counselor sexually assaulted her. The plaintiff filed requests

for admissions and production of documents for information about other

students who had sued the school.       The school objected on the basis that

the information and documents requested were privileged.           After motions

practice, the trial court ordered that the school must fully answer, without

objection, the plaintiff’s requests. The school filed a notice of appeal.

      On appeal, the school argued that production of this information is “in

contravention   of   evidentiary   privileges,   including   the   attorney-client

privilege, and in violation of various statutes.” Id. at 1058.       The plaintiff




       In addition, Appellants reference Code of Judicial Conduct: 5(C)
(Financial Activities), 5(D) (Fiduciary Activities), and 5(F) (Practice of Law).
Appellants’ Brief at 23-24. We note that Pennsylvania has only Canons 1
through 4. It appears that Appellants are referring to Canons 3.11 (Financial
Activities), 3.8 (Fiduciary Activities), and 3.10 (Practice of Law),
respectively. In any event, the Code of Judicial Conduct “is not designed or
intended as a basis for civil or criminal liability. Neither is it intended to be
the basis for litigants to seek collateral remedies against each other or to
obtain tactical advantages in proceedings before a court.” Pa. Code of
Judicial Conduct, Preamble ¶ 7. Based on the foregoing, we fail to see how
either set of rules governs our resolution in this matter.


                                     - 12 -
J-A01038-17


responded that production of this information would not violate such

privileges.

      In evaluating whether there was a potential attorney-client privilege

violation, this Court held that “it is impossible for this Court to determine

whether any privilege applies when [the school] has failed to identify or

describe any such documents that may be protected.” Id. at 1062.              This

Court went on to state the following.

             In the instant case, we do not … have a situation where
      there is a privilege log, let alone any indication or analysis on the
      part of the trial court with regard to documents that [the school]
      deemed protected by the attorney-client privilege and work
      product doctrine. We remind [the school] that, as the party
      invoking these privileges, it must initially “set forth facts showing
      that the privilege has been properly invoked; then the burden
      shifts to the party seeking disclosure to set forth facts showing
      that disclosure will not violate the attorney-client privilege, e.g.,
      because the privilege has been waived or because some
      exception applies.” Nationwide Mut. Ins. Co. v. Fleming, 924
      A.2d 1259, 1266 (Pa. Super. 2007) (citations omitted).
      Accordingly, “[i]f the party asserting the privilege does not
      produce sufficient facts to show that the privilege was properly
      invoked, then the burden never shifts to the other party, and the
      communication is not protected under attorney-client privilege.”
      Id. at 1267. If, upon remand, [the school] is able to identify
      certain materials encompassed in the discovery request that are
      subject to the attorney-client privilege or work product doctrine,
      then the trial court will be able to assess whether those
      materials are discoverable. We therefore remand, noting that the
      court may conduct in camera review of documents identified by
      [the school] to be subject to a privilege, to better analyze the
      privilege issues, as needed.

T.M. v. Elwyn, Inc., 950 A.2d 1050, 1063 (Pa. Super. 2008). See also

Gocial v. Independence Blue Cross, 827 A.2d 1216, 1223 (Pa. Super.

2003) (holding that where there is a privilege log, it is the trial court’s

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J-A01038-17


responsibility to “rule on the relevance of each item … or explain why the

privileges raised were inapplicable”).

      Applying this law to the instant case, it was Appellants’ burden to

assert facts establishing the applicability of attorney-client privilege.   In

addition, where the requests encompass more than one document, it was up

to Appellants to create a privilege log to permit the trial court to rule on

discoverability in the first instance. Appellants have not asserted any such

facts in meeting their burden, nor have they produced a privilege log.

Accordingly, we hold that Appellants have not met the jurisdictional

requirements for reviewability under the collateral order doctrine.

      Having established Appellants present no issues on appeal reviewable

under the collateral order doctrine, we quash this appeal.11

      Appeal quashed.




11
  We recognize that Appellants also filed a petition for permission to appeal
pursuant to Pa.R.A.P. 1311, which was docketed in this Court at 69 WDM
2016. On August 10, 2016, this Court, in a per curiam order, dismissed the
petition as moot. However, even if we had considered whether Appellants
should have been granted permission to appeal from the order, we would
have denied it for the same reasons outlined supra.

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J-A01038-17




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 4/19/2017




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