J-A20022-15




                             2015 PA Super 194

GARY VELORIC AND NANCY VELORIC,                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellees

                   v.

JOHN DOE AND/OR JANE DOE,

APPEAL OF: JOHN DOE,

                        Appellant                   No. 121 EDA 2015


             Appeal from the Order Entered December 1, 2014
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2012-19479


BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.

OPINION BY SHOGAN, J.:                        FILED SEPTEMBER 14, 2015

      Appellants, John and/or Jane Doe, appeal from the trial court’s

December 1, 2014, order granting Gary and Nancy Veloric’s motion to

compel discovery. After careful review, we quash.

      The trial court summarized the factual and procedural history of this

case as follows:

            [Appellees] Gary Veloric and Nancy Veloric [(“the
      Velorics”)] filed the Doe Motion seeking a court order compelling
      [Appellants] John Doe and Jane Doe to appear for a deposition.
      After briefing and argument, the [trial court] granted the relief
      requested by [the Velorics] and ordered the Doe(s) to appear for
      deposition (“the Doe Order.”).3 The Doe(s) refused to appear
      and attend the deposition and filed the present appeal.
      Recently, as discussed in more detail below, [the Velorics]
      deposed Brad Heffler which in turn resulted in an appeal to the
      Pennsylvania Superior Court at Docket Number 2998 EDA 2014
J-A20022-15


     (“the Heffler Appeal”.) Both the Heffler Appeal and the Doe
     Appeal involve motions to compel discovery in the underlying
     Complaint.
          3
            The [trial court] ordered the [Appellants] to appear
          for deposition within thirty days. See, Order dated
          12/1/14 and docketed 12/3/14.

            In the Complaint, [the Velorics] seek damages on behalf of
     Gary Veloric for defamation, slander, libel, injurious falsehood,
     and intentional infliction of emotional distress, and, damages for
     loss of consortium on behalf of Nancy Veloric. [The Velorics]
     averred that Nancy Veloric received a phone call on January 18,
     2012 from an unidentified woman (“Jane Doe”) who claimed to
     be Gary Veloric’s girlfriend and [Jane Doe] was angry because he
     was having sexual relations with another woman. Nancy Veloric
     questioned her husband regarding the phone call and he denied
     the anonymous caller’s claims. After some research, Nancy
     Veloric determined the phone number of the unidentified caller
     included a Nashville, Tennessee area code, and was no longer in
     service. Later in 2012, two emails were sent to Nancy Veloric,
     alleging additional infidelities by her husband. Gary Veloric
     denied these allegations.

            [The Velorics] proceeded with discovery and issued
     subpoenas to third parties Brad and Andrea Heffler to attend and
     testify at depositions. The Velorics and the Hefflers share a
     litigious history dating back several years to a time when they
     shared a property line.9 In the Heffler Appeal, Brad Heffler was
     deposed by [Appellants] on March 14, 2014 (“the Deposition”).
     Heffler invoked the Fifth Amendment and refused to answer
     several questions posed to him during the Deposition. [The
     Velorics] filed a motion to compel Brad Heffler’s testimony (“the
     Heffler Motion”), claiming that Heffler invoked the Fifth
     Amendment “to virtually every question.” After hearing and
     argument (“the Hearing”), the [trial court] ordered Heffler to
     answer some of the questions at issue and sustained his
     objections to others (“the Heffler Order”). Continuing to rely
     upon the Fifth Amendment and/or attorney client privilege,
     Heffler refused to answer those questions he was ordered to
     answer that were not otherwise resolved, and, the Heffler Appeal
     ensued.




                                   -2-
J-A20022-15


            9
               The Velorics and the Hefflers were previously
            involved in litigation before the Montgomery County
            Court of Common Pleas in the Matter of Gary Veloric
            and Nancy Veloric v. Brad Heffler and Andrea Heffler,
            et al., docketed at 2009-09902, in which the
            Velorics’ [sic] raised claims of trespass, conversion,
            waste, negligence, and, nuisance. At the time, the
            Veloric and Heffler residences shared a property line
            (“the Trespass Complaint”). There were also related
            cases at Gary Veloric and Nancy Veloric v.
            Montgomery County Lands Trust, docketed at 2010-
            2140, and Gary Veloric and Nancy Veloric v.
            Whitemarsh Township, docketed at 2009-42979.
            Ultimately, a praecipe to settle, discontinue and end
            was docketed in each of these three cases.

            In the present Appeal, the Doe(s) refused to appear and
      attend the scheduled deposition, despite the issuance of the Doe
      Order requiring them to do so. The Doe(s) refusal to attend was
      also based on Fifth Amendment grounds.

Trial Court Opinion, 4/13/15, at 1-4 (some internal footnotes omitted).

      Appellants present the following issue for our review:

      Did the lower court err in granting [the Velorics’] Motion to
      Compel the deposition(s) of Appellant(s) where Appellant(s)
      asserted their privilege against self-incrimination guaranteed by
      the Constitutions of the United States and the Commonwealth of
      Pennsylvania and where compelling Appellant(s) to appear for
      their deposition(s) is tantamount to requiring them to relinquish
      their constitutional protections[?]

Appellants’ Brief at 4.

      Before addressing the merits of Appellants’ claims, we must determine

whether this matter is properly before us. Pennsylvania law makes clear:

      [A]n appeal may be taken from: (1) a final order or an order
      certified as a final order (Pa.R.A.P. 341); (2) an interlocutory
      order as of right (Pa.R.A.P. 311); (3) an interlocutory order by
      permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4)
      a collateral order (Pa.R.A.P. 313).

                                    -3-
J-A20022-15




Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123 (Pa.

Super. 2007). “A final order is one that disposes of all the parties and all the

claims, is expressly defined as a final order by statute, or is entered as a

final order pursuant to the trial court’s determination.” Id. (citing Pa.R.A.P.

341(b)(1)-(3)).      “[T]he appealability of an order goes directly to the

jurisdiction of the Court asked to review the order.”         Berkeyheiser, 936

A.2d at 1123.

      We further note that most “discovery orders are deemed interlocutory

and not immediately appealable because they do not dispose of the

litigation.”   Dougherty v. Heller, 97 A.3d 1257, 1261 (Pa. Super. 2014)

(en banc) (citation omitted), appeal granted in part, 109 A.3d 675 (Pa.

2015).     However, certain discovery orders, particularly those involving

ostensibly     privileged   material,   have   been   found   to   be   immediately

appealable as collateral orders pursuant to Pa.R.A.P. 313. Dougherty, 97

A.3d at 1261.

      Appellants argue that this Court has jurisdiction over this matter

pursuant to Pa.R.A.P. 313. Appellants’ Brief at 9. The Velorics, conversely,

contend that this Court lacks jurisdiction over this matter, and that the order

at issue is not a collateral order pursuant to Pa.R.A.P. 313.           The Velorics’

Brief at 1-2. Accordingly, the Velorics assert, this Court should quash this




                                         -4-
J-A20022-15


appeal and remand this case to the trial court for further proceedings. Id.

at 2.

        A collateral order is an order [1] separable from and collateral to
        the main cause of action where [2] 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. 313(b); Dougherty, 97 A.3d at 1261. “All three factors must be

present before an order may be considered collateral.” Dougherty, 97 A.3d

at 1261.

        Additionally, in addressing collateral orders, our Supreme Court has

explained:

        [T]he collateral order doctrine is a specialized practical
        application of the general rule that only final orders are
        appealable as of right. 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.

Melvin v. Doe, 836 A.2d 42, 46-47 (Pa. 2003).

        In the present case, the order on appeal is the discovery order,

entered December 1, 2014, directing Appellants Doe to appear for

depositions. Appellants assert that an appeal may be taken as of right from

this order because it is a collateral order, as it meets the three prongs of the

collateral order test set forth in Pa.R.A.P. 313(b).      Id.   First, Appellants

contend, the issue of their privilege against self-incrimination, guaranteed by

the Fifth Amendment of the United States Constitution and Article I § 9 of

the Constitution of the Commonwealth of Pennsylvania, is separate from the

                                       -5-
J-A20022-15


merits of the Velorics’ underlying claims of defamation. Id. Appellants next

claim to have met the second prong as the privilege against self-

incrimination is “deeply rooted in public policy” and goes “beyond the

particular litigation at hand.” Id. at 10. Finally, Appellants assert that their

privilege against self-incrimination will be irreparably lost if review were

postponed until final judgment of the court. Id. at 11. Appellants contend

that “[a]ppearing at a deposition would inevitably result in the disclosure of

Appellant(s)[’] identit(ies), and Appellant(s)[’] identit(ies) alone could

subject them to criminal prosecution.” Id. at 12. The “criminal prosecution”

anticipated by Appellants is for the unlawful use of a computer, that carries a

five-year statute of limitations which has not yet run. Id. at 12, 16.

      As noted above, an otherwise interlocutory order may be immediately

appealable as a collateral order if it satisfies all three prongs of the collateral

order test. Dougherty, 97 A.3d at 1261. Significantly, Pennsylvania courts

have held that discovery orders involving potentially confidential and

privileged materials are immediately appealable as collateral to the principal

action. Id. Here, Appellants have invoked their Fifth Amendment rights in

refusing to attend the deposition, so as not to reveal their identity. Thus, a

determination of whether Appellants have properly invoked the Fifth

Amendment privilege is relevant to the determination of whether the

discovery order is a collateral order.

           The Fifth Amendment, in relevant part, provides that no
      person “shall be compelled in any criminal case to be a witness

                                         -6-
J-A20022-15


     against himself.” U.S. Const. Amend. V. “The Fifth Amendment
     not only protects the individual against being involuntarily called
     as a witness against himself in a criminal prosecution but also
     privileges him not to answer official questions put to him in any
     other proceeding, civil or criminal, formal or informal, where the
     answers might incriminate him in future criminal proceedings.”
     Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d
     274 (1973).      “[T]he availability of the [Fifth Amendment]
     privilege does not turn upon the type of proceeding in which its
     protection is invoked, but upon the nature of the statement or
     admission and the exposure which it invites.” Estelle v. Smith,
     451 U.S. 454, 462, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981)
     (citation omitted). The Fifth Amendment privilege against self-
     incrimination can be asserted in any proceeding “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, 118 S.Ct. 2218, 141
     L.Ed.2d 575 (1998).

Commonwealth v. Brown, 26 A.3d 485, 493-494 (Pa. Super. 2011).

     In determining whether an order is a collateral order, first, the order

must be separate and distinct from the underlying cause of action.

Berkeyheiser, 932 A.2d at 1123.          This prong is met by the order sub

judice. The question of whether the Appellants properly invoked their Fifth

Amendment     constitutional   rights    against   self-incrimination   may   be

addressed without consideration of the merits of the Velorics’ underlying

defamation action.

     The second prong of the collateral order test mandates that the order

“must involve rights deeply rooted in public policy going beyond the

particular litigation at hand.” Berkeyheiser, 936 A.2d at 1123. The courts

of this Commonwealth have held that discovery orders raising questions of


                                        -7-
J-A20022-15


privilege and privacy interests all raise the type of deeply rooted public

policy     concerns     necessary    to    qualify   as     a    collateral   order.      See

Commonwealth v. Dennis, 859 A.2d 1270, 1278 (Pa. 2004) (finding a

discovery order compelling the production of defense notes taken during jury

selection process was a collateral order where the question of privilege

involving the work-product doctrine involved one of the most fundamental

tenets of our system of jurisprudence, deeply rooted in public policy); Ben

v. Schwartz, 729 A.2d 547, 552 (Pa. 1999) (determination as to whether

investigative files of Bureau of Professional and Occupational Affairs “are

subject to any executive or statutory privilege implicates rights rooted in

public policy, and impacts on individuals other than those involved in this

particular litigation.”); Berkeyheiser, 936 A.2d at 1124 (“the issues of

attorney-client and work-product privileges, as well as privacy concerns, [in

an order directing defendant to turn over discovery materials,] implicate

rights deeply rooted in public policy, especially where the disclosure of such

information affects individuals other than those involved in this particular

case.”).

         While we agree that the privilege                against self-incrimination is

protected under both the United States and Pennsylvania Constitutions, see

U.S. Const., Amend. V; Pa. Const., Art. I, § 9, and is so engrained in our

nation     that   it   constitutes   a    right   “deeply       rooted   in   public   policy,”

Berkeyheiser, 936 A.2d at 1123, we cannot agree that Appellants have


                                            -8-
J-A20022-15


properly invoked that privilege in this case. Appellants have not invoked the

privilege in the context of refusing to provide self-incriminating testimony.

Instead, Appellants have refused to appear for a deposition or provide any

testimony on the basis that doing so will reveal their identities.

      As this Court has recognized, the United States Supreme Court in

Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004),

concluded the following regarding the Fifth Amendment:                “The Fifth

Amendment states that ‘[n]o person ... shall be compelled in any criminal

case to be a witness against himself.’ To qualify for the Fifth Amendment

privilege,   a   communication   must   be   testimonial,   incriminating   and

compelled.”      Commonwealth v. Reed, 19 A.3d 1163, 1167 (Pa. Super.

2011).

      Here, Appellants are not seeking to invoke the privilege against self-

incriminating compelled    testimony    as identified in    Hiibel.     Instead,

Appellants seek to use the Fifth Amendment privilege as a blanket protection

allowing them to hide their identities and avoid appearance for a court-

ordered deposition.    We cannot agree that such overarching protection is

afforded by the Fifth Amendment.

      “The Fifth Amendment privilege is not self-executing, and answers are

generally not considered compelled ‘within the meaning of the Fifth

Amendment unless the witness is required to answer over his valid claim of

the privilege.’” Commonwealth v. Knoble, 42 A.3d 976, 979 (Pa. 2012).


                                     -9-
J-A20022-15


Our Supreme Court has provided the following explanation regarding a

witness’s invocation of the Fifth Amendment privilege:

      When an individual . . . is called to testify . . . in a judicial
      proceeding, he or she is not exonerated from answering
      questions merely upon a declaration that in so doing it would be
      self[-]incriminating. It is also for the court to judge if the silence
      is justified, and an illusory claim should be rejected. However,
      for the court to properly overrule the claim of privilege, it must
      be perfectly clear from a careful consideration of all the
      circumstances, that the witness is mistaken in the apprehension
      of self-incrimination and the answers demanded cannot
      possibly have such tendency.

Commonwealth v. Long, 625 A.2d 630, 634 (Pa. 1993) (emphasis in

original) (citations omitted).

      Thus, an attempt to invoke the Fifth Amendment privilege is specific to

the testimony being compelled.       A court’s decision whether to allow an

individual to invoke the privilege takes into account the context of the

proposed testimony and must involve a determination as to whether such

testimony would be self-incriminating. Here, Appellants are not objecting to

any specific compelled testimony;       Appellants simply want to invoke the

privilege so as to avoid providing any testimony. As a result, there is no

proposed testimony for a court to consider in the context of the privilege and

whether such testimony would be self-incriminating.

      Not only have Appellants failed to identify testimony that would be

self-incriminating, they have also failed to provide authority supporting their

claim that the Fifth Amendment provides a blanket protection against

providing the basic information of their identity. The Pennsylvania Supreme

                                     - 10 -
J-A20022-15


Court has opined that an individual “does not have an expectation of privacy

in his name and address that society is willing to recognize as reasonable

and legitimate.”    Commonwealth v. Duncan, 817 A.2d 455, 469 (Pa.

2003).   Indeed, in the criminal context, we have ruled that defendants

cannot properly invoke the Fifth Amendment privilege to shield them from

revealing their identity.   See Commonwealth v. Durr, 32 A.3d 781, 786

(Pa. Super. 2011) (holding there was no Fifth Amendment violation in

compelling the defendant to provide his name because his name could not

be used to establish guilt of a crime, nor did identity itself give rise to a

criminal charge).

      Moreover, our Supreme Court has stated the following in addressing

the protections of the Fifth Amendment privilege:

      “The purpose of the constitutional provision is to prohibit the
      compulsory oral examination of the prisoner * * *-to prevent his
      being required to incriminate himself by speech or the equivalent
      of speech: Commonwealth v. Valeroso, 273 Pa. 213, 219,
      220, 116 A. 828, 830.”

            Prior and subsequent decisions have likewise interpreted
      and limited the constitutional immunity from self-incrimination to
      speech, or the equivalent of speech, as former Chief Justice
      STERN so clearly said in Commonwealth v. Musto, supra. For
      example, in Commonwealth v. Fletcher, 387 Pa. 602, 128
      A.2d 897, the District Attorney was permitted to call the jury’s
      attention to defendant’s peculiar manner of walking, even
      though defendant had not taken the witness stand.               In
      Commonwealth v. Statti, 166 Pa.Super. 577, 73 A.2d 688, the
      Court held that “certainly one lawfully arrested may not refuse to
      submit to finger printing, nor to a search of his person. So also
      the constitutional privilege does not allow a defendant to refuse
      a witness the opportunity of seeing him and hearing his voice,
      for   the   purpose      of   identification. Cf.   Johnson     v.

                                    - 11 -
J-A20022-15


     Commonwealth, 115 Pa. 369, 395, 9 A. 78. The privilege did
     not prevent the Commonwealth from requiring some of the
     defendants to stand in the presence of the jury, as they were
     identified by a witness in Commonwealth v. Safis et al., 122
     Pa.Super. 333, 186 A. 177.”

Commonwealth v. Aljoe, 216 A.2d 50, 53 (Pa. 1966).

     The United States Supreme Court has also explained that the Fifth

Amendment privilege applies only to testimony, as follows:

           The Self–Incrimination Clause of the Fifth Amendment
     provides that no “person ... shall be compelled in any criminal
     case to be a witness against himself.” Although the text does
     not delineate the ways in which a person might be made a
     “witness against himself,” cf. Schmerber v. California, 384
     U.S. 757, 761–762, n. 6, 86 S.Ct. 1826, 1831, n. 6, 16 L.Ed.2d
     908 (1966), we have long held that the privilege does not
     protect a suspect from being compelled by the State to produce
     “real or physical evidence.” Id. at 764, 86 S.Ct. at 1832.
     Rather, the privilege “protects an accused only from being
     compelled to testify against himself, or otherwise provide the
     State with evidence of a testimonial or communicative nature.”
     Id., at 761, 86 S.Ct. at 1830. “[I]n order to be testimonial, an
     accused’s communication must itself, explicitly or implicitly,
     relate a factual assertion or disclose information. Only then is a
     person compelled to be a ‘witness’ against himself.” Doe v.
     United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 2347, 101
     L.Ed.2d 184 (1988).

Pennsylvania v. Muniz, 496 U.S. 582, 588-589 (1990).

     This Court, in quoting the United States Supreme Court decision in

Schmerber v. California, 384 U.S. 757 (1966), has further explained:

     It is clear that the protection of the privilege reaches an
     accused’s communications, whatever form they might take, and
     the compulsion of responses which are also communications, for
     example, compliance with a subpoena to produce one’s papers.
     Boyd v. United States, 116 U.S. 616. On the other hand, both
     federal and state courts have usually held that it offers no
     protection against compulsion to submit to fingerprinting,

                                   - 12 -
J-A20022-15


     photographing, or measurements, to write or speak for
     identification, to appear in court, to stand, to assume a stance,
     to walk, or to make a particular gesture. The distinction which
     has emerged, often expressed in different ways, is that the
     privilege is a bar against compelling “communications” or
     “testimony,” but that compulsion which makes a suspect or
     accused the source of “real or physical evidence” does not
     violate it. Id. at 763—764, 86 S.Ct. at 1832.9

Commonwealth v. Robinson, 324 A.2d 441, 447-448 (Pa. Super. 1974)

(emphasis added).

     In this case, Appellants have not invoked the privilege in the context

of compelled testimony. Instead, Appellants seek to not have to appear for

their depositions.   As outlined above, the privilege does not apply to

noncommunicative acts, such as having to appear in court.         Appellants’

appearance at the deposition is a noncommunicative act and is thus not, in

and of itself, protected by the Fifth Amendment.

     Additionally, it is important to note that it would not be Appellants’

appearance at the deposition that would give rise to a potential criminal

charge.   Instead, if criminal charges were to follow, Appellants’ alleged

actions of using a computer would give rise to the criminal charge.

     Moreover, at this point in the civil defamation trial, there is no threat

of a future criminal proceeding. Relevant case law provides that Appellants

have the burden to demonstrate they have “reasonable cause to apprehend”

a “real danger of prosecution” should they be compelled to appear.

Commonwealth v. Carrera, 227 A.2d 627, 629 (Pa. 1967), superseded by




                                   - 13 -
J-A20022-15


statute on other grounds, Commonwealth v. Swinehart, 664 A.2d 957

(Pa. 1995). The Supreme Court has made clear:

       The witness is not exonerated from answering merely because
       he declares that in so doing he would incriminate himself – his
       say-so does not of itself establish the hazard of incrimination. It
       is for the court to say whether his silence is justified, and to
       require him to answer if “it clearly appears to the court that he is
       mistaken.”

Hoffman v. U.S., 341 U.S. 479, 486 (1951). Here, Appellants have failed

to satisfy this burden.

       It is questionable whether Appellants’ alleged computer activity can

provide a basis for a charge of unlawful use of a computer, as asserted by

Appellants. See 42 Pa.C.S. § 5552(b) (outlining statutes of limitations);1 18

Pa.C.S. § 7611 (Unlawful Use of A Computer and Other Computer Crimes).

The crime of unlawful use of a computer, codified at 18 Pa.C.S. § 7611,

provides that a person commits the offense if he:

       (1) accesses or exceeds authorization to access, alters,
       damages or destroys any computer, computer system,
       computer network, computer software, computer program,
       computer database, World Wide Web site or telecommunication
       device or any part thereof with the intent to interrupt the normal
       functioning of a person or to devise or execute any scheme or
       artifice to defraud or deceive or control property or services by
       means of false or fraudulent pretenses, representations or
       promises;
____________________________________________


1
  The crime of unlawful use of a computer is listed in Section 5552(b) as
“section 3933 (relating to unlawful use of a computer).” 42 Pa.C.S. §
5552(b). However, Section 3933 was repealed in 2002 and replaced by
Section 7611. See 2002, Dec. 16, P.L. 1953, No. 226, § 3 , effective in 60
days.



                                          - 14 -
J-A20022-15


       (2) intentionally and without authorization accesses or
       exceeds authorization to access, alters, interferes with
       the operation of, damages or destroys any computer,
       computer system, computer network, computer software,
       computer program, computer database, World Wide Web site or
       telecommunication device or any part thereof; or

       (3) intentionally or knowingly and without authorization
       gives or publishes a password, identifying code, personal
       identification number or other confidential information about a
       computer, computer system, computer network, computer
       database, World Wide Web site or telecommunication device.

18 Pa.C.S. § 7611(a) (emphasis added).

       The facts alleged in the instant complaint assert that the Does sent

two anonymous, defamatory e-mails to Nancy Veloric.                    There are no

allegations that the Does, without authorization, accessed a computer or

computer    system   or   knowingly   published        a    password   or   identifying

information. It is not clear that simply sending a defamatory e-mail would

constitute a violation of the statute.     Significantly, Appellants provide no

analysis establishing that their appearance at the deposition might support a

charge of unlawful use of a computer as delineated in 18 Pa.C.S. § 7611.

While Appellants are not required to provide potentially incriminating

answers to the questions before asserting their Fifth Amendment privilege,

they   must   demonstrate    “reasonable       cause       to   apprehend   danger[.]”

Hoffman, 341 U.S. at 486. This they failed to do.

       Furthermore, in AmerisourceBergen Corp. v. Does, 81 A.3d 921

(Pa. Super. 2013), this Court was presented with a similar scenario in which

the appellants sought to maintain their anonymity after being sued as “John


                                      - 15 -
J-A20022-15


Does.” In that case, the appellants unlawfully used a corporate executive’s

identity to post comments on a website regarding that company’s financial

status. Id. at 924. Seeking to keep their identities secret, the appellants

invoked their First Amendment rights. The trial court, however, granted a

motion to compel disclosure of the individuals’ identities.     Id. at 923. On

appeal, this Court considered whether the order compelling disclosure of the

appellants’ identities was a collateral order.        Id. at 927.    The panel

concluded as follows:

      [W]e are constrained to find that Appellants have no protectable
      interest in their identities sufficient to outweigh Appellees’ right
      to identify Appellants for purposes of seeking legal redress for
      Appellants’ illegal appropriation of [the executive’s] name in a
      public forum. Consequently, Appellants have failed to meet the
      “stringent” collateral order test by demonstrating that the right
      at issue, if any, is a right “deeply rooted in public policy.”

Id. at 931-932.

      Here, too, we find that Appellants have no protectable interest in their

identities sufficient to outweigh the Velorics’ right to identify Appellants for

purposes of seeking legal redress.        As a result, Appellants have failed to

meet the collateral order test by demonstrating that the right at issue is a

right “deeply rooted in public policy.”

      Accordingly, we are compelled to conclude that Appellants have failed

to meet the second prong of the collateral order test. As noted, the Fifth

Amendment is intended to protect against compelled self-incriminating

testimony or communications.      For reasons outlined previously, Appellants


                                     - 16 -
J-A20022-15


are not seeking protection from compelled testimony but instead, are

seeking a blanket protection from providing any testimony or revealing their

identities. Thus, despite framing their claim as an invocation of their Fifth

Amendment rights against self-incrimination, the protection Appellants seek

is not afforded by the Fifth Amendment nor is it “deeply rooted in public

policy.” As a result, Appellants have failed to meet the second prong of the

collateral order test.

      Thus, we cannot agree with Appellants’ assertion that the discovery

order is an appealable collateral order.      Dougherty, 97 A.3d at 1261

(stating that all three prongs of Rule 313(b) must be met before an order

may be subject to a collateral appeal).     As a result, we cannot reach the

merits of Appellants’ issue because this is an interlocutory appeal and we

lack jurisdiction. Id.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/2015




                                   - 17 -
