J-A11040-17


                                  2017 PA Super 260

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SEAN PATRICK SELLERS                       :
                                               :
                                               :   No. 1584 MDA 2016
    APPEAL OF: STEVE RICE, ESQ.                :

                   Appeal from the Order September 15, 2016
                In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000339-2014


BEFORE:      SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                            FILED AUGUST 11, 2017

        Appellant, Steve Rice, Esq., appeals from the order entered in the

Court of Common Pleas of Franklin County granting the Commonwealth’s

motion for a protective order prohibiting him from supplying requested

discovery material to his former client, Sean Patrick Sellers.          Herein,

Attorney Rice asserts the lower court erred in issuing the protective order

without a hearing when he has a professional duty to turn over Sellers’ case

file and where the Commonwealth failed to specify in its Pa.R.Crim.P 573

motion why such discovery was improper. We reverse and remand.

        Attorney Rice represented Sellers during his criminal trial and

sentencing, but he withdrew his appearance prior to Sellers’ direct appeal,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A11040-17



which the Franklin County Public Defender’s Office has filed on Sellers’

behalf.1      Months     after   his   withdrawal,   Attorney   Rice   notified   the

Commonwealth of his intent to honor Sellers’ request for a copy of pretrial

discovery, including information retrieved from Sellers’ cell phone, but Rice

first asked the Commonwealth “as a courtesy” if it was aware of any

sensitive material that should not be provided to Sellers.

        The Commonwealth responded that Attorney Rice should refrain from

sending any discovery to Sellers, as it was of the opinion that only the

Franklin County Public Defender, as Sellers’ present counsel, was authorized

to handle discovery requests made by Sellers.               Rice replied that he

considered it his duty under rules of professional conduct to provide

reasonably practicable discovery disclosure to his former client, and he

invited the Commonwealth to file a motion for a protective order in order to

seek a court ruling on the matter, which the Commonwealth did pursuant to

Rule 573.

        On August 22, 2016, the court entered an interim order directing Rice

to refrain from transferring any discovery material to Sellers, and it ordered

Rice to file an answer to the Commonwealth’s motion, which he filed on

September 1, 2016.         On September 15, 2016, without first conducting a

hearing, the court entered an order in reliance on party filings granting the


____________________________________________


1
    Sellers’ direct appeal is presently before this Court, at No. 1122 MDA 2016.



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Commonwealth’s motion. Relying on Williams v. Dark, 844 F.Supp. 210,

213-14 (E.D. Pa 1993), the court reasoned that Sellers possessed no

constitutional right to his own copy of discovery materials when his counsel,

the Franklin County Public Defender’s Office, enjoys access to them.       This

timely appeal followed.

      Attorney Rice presents the following question for our review:

      I.    DID THE LOWER COURT ERR IN GRANTING THE
            COMMONWEALTH’S MOTION FOR A PROTECTIVE
            ORDER WHERE THE COMMONWEALTH FAILED TO
            MAKE A “SUFFICIENT SHOWING” THAT SUCH ORDER
            IS APPROPRIATE UNDER Pa.R.Crim.P. 573(F)?

Appellant’s brief at 5.

      Attorney Rice contends that the Commonwealth failed to make a

“sufficient showing,” as required under Pa.R.Crim.P. 573(F), to support its

requested protective order.   Rule 573, “Pretrial Discovery and Inspection,”

provides under subsection (F) “Protective Orders”:

      Upon a sufficient showing, the court may at any time order that
      the discovery or inspection be denied, restricted, or deferred, or
      make such other order as is appropriate. Upon motion of any
      party, the court may permit the showing to be made in whole or
      in part, in the form of a written statement to be inspected by the
      court in camera. If the court enters an order granting relief
      following a showing in camera, the entire text of the statement
      shall be sealed and preserved in the records of the court to be
      made available to the appellate court(s) in the event of an
      appeal.

Pa.R.Crim.P. 573(F).

      Here, Attorney Rice maintains, there was no showing at all, let alone a

sufficient one, where the court failed to conduct a hearing at which it could


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have considered the Commonwealth’s evidentiary proffer.            While he

acknowledges that the Commonwealth alleged in its motion that there were

sensitive materials in the discovery, and that he, in his answer, admitted

that some materials were, in fact, sensitive, there was neither an agreement

between the parties that all materials were sensitive nor a particularized

description of the materials at issue.      Consequently, he argues, the

Commonwealth did not meet its burden of presentation under Rule 573(F).

     Both the Commonwealth and the lower court respond to Rice’s

argument by contesting his standing to bring the appeal. According to the

lower court, Pennsylvania Rule of Appellate Procedure 501 confers the right

to appeal upon “any party who is aggrieved by an appealable order.” See

Pa.R.A.P. 501.   The court observes that decisional law addressing Rule 501

has held that “[a] party is aggrieved when he or she has a “substantial,

direct, and immediate” interest in the subject matter of the appeal. William

Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 282-84

(1975).   Specifically, “the requirement of a ‘substantial’ interest simply

means that the individual’s interest must have substance—there must be

some discernible adverse effect to some interest other than the abstract

interest of all citizens in having others comply with the law.”   Id. at 282.

“The requirement that an interest be ‘direct’ simply means that the person

claiming to be aggrieved must show causation of the harm to his interest by

the matter of which he complains.” Id. (footnote omitted). Finally, “[t]he

remaining requirements of the traditional formulation of the standing test

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J-A11040-17



are that the interest be ‘immediate’ and ‘not a remote consequence of the

judgment.’   [T]hese two requirements reflect a single concern.         Here that

concern is with the nature of the causal connection between the action

complained of and the injury to the person challenging it.” Id. at 283.

      The court concludes that the order from which Attorney Rice has

appealed does not aggrieve his interests because he no longer represents

Sean Sellers.   To the extent anyone holds an interest in the discovery at

issue, it is Sean Sellers, and not Attorney Rice, the court opines, such that

only Sean Sellers’ interests are implicated by the order in question.

      For that matter, the court continues, Attorney Rice is not even a party

for purposes of Rules 573(F) and 501, as he no longer represents Sellers

and did not represent him at the time the court issued the instant order

under review.

      On the issue of standing, Attorney Rice posits that he is a party under

Section 102 of the Judicial Code, which defines a “party” as “[a] person who

commences or against whom relief is sought in a matter.” 42 Pa.C.S.A. §

102. In this case, Attorney Rice notes, he was the person against whom the

Commonwealth sought relief in the form of a protective order.           Rice had

indicated his intent to transmit pretrial discovery materials to Sellers, and

the Commonwealth asked the court to stop Rice from doing so. The order

itself, in turn, constrained Attorney Rice alone, and it addressed neither

Sean Sellers nor the Franklin County Public Defender’s Office in the process.




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J-A11040-17



       Attorney Rice also contends that he meets the requirements of an

“aggrieved party” as identified by our Supreme Court in William Penn

Parking Garage.          Specifically, Rice points to the Pennsylvania Rules of

Professional Conduct imposing a duty upon a lawyer to “promptly comply

with reasonable requests for information[,]” Pa.R.P.C. 1.4(a)(4), and to

“surrender papers and property to which the client is entitled” upon

termination of representation. See Pa.R.P.C. 1.16(d)2. A client’s file is part

of such information, Rice maintains, citing to Maleski v. Corporate Life

Ins. Co., 641 A.2d 1 (Pa. Cmwlth. 1994).3         Because of the lower court’s

order, Attorney Rice explains, he cannot carry out his professional duty with

respect to a former client presently pursuing direct appeal and who may, if

need be, subsequently file for post-conviction relief and/or a federal motion

for writ of habeas corpus.


____________________________________________


2
 Rule 1.16(d) provides:
      Upon termination of representation, a lawyer shall take steps to
      the extent reasonably practicable to protect a client's interests,
      such as giving reasonable notice to the client, allowing time for
      employment of other counsel, surrendering papers and property
      to which the client is entitled and refunding any advance
      payment of fee or expense that has not been earned or incurred.
      The lawyer may retain papers relating to the client to the extent
      permitted by other law.
Pa.R.P.C. 1.16
3
  Decisions of the Pennsylvania Commonwealth Court are not binding upon
the Pennsylvania Superior Court, but we deem the cited case instructive in
addressing the present issue.



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J-A11040-17



      Under the present facts, we conclude that Attorney Rice is an

aggrieved party for purposes of the present appeal, as he has articulated a

substantial, direct, and immediate interest—as those requirements are

described in William Penn Parking Garage—in conforming to rules of

professional conduct calling for an attorney to take steps reasonably

practicable to protect the interests of a former client. Here, Attorney Rice’s

former client, Sean Sellers, requested that Rice transmit his case file during

the pendency of his direct appeal, but the lower court entered an order

preventing Attorney Rice from satisfying the request. We, therefore, agree

with Rice’s position that he is an aggrieved party with standing to bring the

present appeal.

      We, therefore, may address whether the lower court erred in entering

its protective order without the benefit of either a hearing or an in camera

review of documents specifying the particular nature of the materials at

issue. The record establishes that the Commonwealth filed its motion for a

protective order pursuant to Rule 573, claiming that the case file Attorney

Rice intended to transmit to Sellers contained “sensitive materials.” Without

the benefit of any further information or a hearing, the lower court granted

the motion.

      As reproduced above, the plain language of Rule 573(F) provides that

a protective order may be entered upon a “sufficient showing,” which the

movant may accomplish in whole or in part by a submitting a written

statement to be reviewed by the court in camera. Here, the court entered a

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J-A11040-17



protective order upon nothing more than a written statement that the

contested discovery contained “sensitive materials.” We decline to find such

a vague, generalized proffer sufficient to meet the movant’s burden of

presentation under Rule 574(F). Accordingly, we reverse the order entered

below and remand this matter to the lower court, which shall either conduct

a hearing or demand submission of a written statement detailing the

particular nature of the materials in question warranting their non-

disclosure.

      Order is reversed. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2017




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