J-A33040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN F. BROWN, JR., ESQUIRE                        IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MARK S. HALPERN, ESQUIRE, HALPERN
& LEVY, P.C., AND LYNNE BOGHOSSIAN

                            Appellants                  No. 1439 EDA 2014


                  Appeal from the Order Entered April 24, 2014
              In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): 01428 June Term, 2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED MARCH 24, 2015

        Mark S. Halpern, Esquire, Halpern & Levy, P.C., and Lynne Boghossian

(collectively, “Appellants”) appeal from the order granting John F. Brown,

Jr., Esquire’s motion to compel discovery responses, entered by the

Honorable Mark Bernstein in the Court of Common Pleas of Philadelphia

County. Upon careful review, we affirm.

        The relevant history of the instant matter is as follows:

        In 2009, defendants Mark Halpern and Halpern & Levy, P.C.,
        instituted a lawsuit against plaintiff and others on behalf of their
        client, defendant Boghossian, in Montgomery County [(the “Prior
        Action”)].    All claims against plaintiff were dismissed with
        prejudice on January 31, 2014. Defendants did not appeal this
        dismissal and proceeded against the remaining defendant, the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      Hilda Kilijian Irrevocable Trust (“HKIT”). On October   13, 2013,
      Judge [Lois E.] Murphy granted HKIT’s motion for        summary
      judgment.       Defendants appealed the grant of        summary
      judgment as to defendant HKIT to the Superior            Court of
      Pennsylvania.

      Six months after he was dismissed from the Montgomery County
      lawsuit, John Brown Jr., Esq., initiated this action against
      defendants alleging [civil conspiracy and wrongful use of civil
      proceedings stemming from the Prior Action]. In her answer and
      new matter to plaintiff’s complaint, defendant Boghossian stated
      that the “claims of the plaintiff are barred because the Defendant
      relied in good faith upon the advice of counsel.” Defendants
      Mark Halpern and Halpern & Levy, P.C., stated in their answer
      and new matter that “the claims of the plaintiff are barred
      because the defendants relied in good faith upon the facts given
      from the plaintiff in the underlying litigation.”

                                        ...

      On October 28, 2013, plaintiff served plaintiff’s discovery
      requests on defendant Boghossian. On November 26, 2013,
      defendant Boghossian served plaintiff with her objections to
      plaintiff’s requests, which assert that the requests call for
      information that is protected under attorney client privilege or
      the work product doctrine. On November 25, 2013, plaintiff
      served additional discovery requests on all defendants.
      Defendants have not yet responded. A hearing was held before
      this court on March 4, 2014. On April 24, 2014, this court
      entered an order granting plaintiff’s motion to compel responses
      to plaintiff’s October 28, 2013, and November 25, 2013
      discovery requests. Defendants timely appeal.

Trial Court Opinion, 7/16/14, at 1-2.

      On October 28, 2013, Brown filed discovery requests directed at

uncovering the good faith basis relied upon by both Attorney Halpern and

Boghossian. In response, Boghossian and Attorney Halpern filed a motion

for summary judgment, motion for stay, and a motion for protective order,

arguing that the discovery sought privileged information and attorney work

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product.   On February 10, 2014, Judge Bernstein denied the motion for

summary judgment.

      On February 19, 2014, Brown filed motions to compel with respect to

his discovery requests, as Boghossian and Attorney Halpern had not yet

responded. Those motions went uncontested.

      On March 3, 2014, the trial court heard oral arguments on the

Appellants’ motions for stay and for protective order; the court denied the

motion for stay at that time.   On April 24, 2014, Judge Bernstein granted

Brown’s motions to compel discovery.      Boghossian and Attorney Halpern

appealed that order, raising the following issue, which we have restated for

purposes of clarity:

      Did the trial court commit an error of law when it held that
      Appellants waived the attorney-client privilege and work product
      protections and compelled production of discovery where the
      Prior Action has not terminated and the actions of the Attorney
      Brown must still be determined by the fact finder?

      Before we review the merits of this appeal, we must address Brown’s

motion to quash, in which he claims that this appeal is interlocutory because

it concerns a discovery order.      Appellants contend that the order is

appealable as a collateral order pursuant to Pa.R.A.P. 313.

      Generally, only final orders, which dispose of all claims and of all

parties, are appealable as of right. See Pa.R.A.P. 341. There are, however,

exceptions. “The collateral order doctrine allows for immediate appeal of an

order which:    (1) is separable from and collateral to the main cause of

action; (2) concerns a right too important to be denied review; and (3)

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presents a claim that will be irreparably lost if review is postponed until final

judgment in the case.”       Vaccone v. Syken, 899 A.2d 1103, 1106 (Pa.

2006). This Court has previously evaluated that standard in the context of a

discovery order, finding that where such an appeal raises “a colorable claim

of attorney-client privilege,” appellate review under the collateral order

doctrine is appropriate.    Gocial v. Independence Blue Cross, 827 A.2d

1216, 1220 (Pa. Super. 2003); Carbis Walker, LLP v. Hill, Barth, & King,

LLC, 930 A.2d 573, 577 (Pa. Super. 2007).

      Here, the order on appeal is separable from the main cause of action,

raises a colorable issue as to attorney-client privilege, and presents a claim

that will be irreparably lost if review was postponed until final judgment.

Accordingly, the order meets the requisites of the collateral order doctrine

and may be reviewed. See Law Offices of Douglas T. Harris, Esquire v.

Philadelphia Waterfront Partners, LP, 957 A.2d 1223, 1229 (Pa. Super.

2008) (appeals related to discovery of potentially privileged information are

typically collateral in nature).

      We now turn to Appellants’ substantive claim. Appellants assert that,

while their affirmative defenses each place privileged communications and

work product at issue, those protections should not be waived because the

Prior Action is still ongoing and, therefore, Brown’s claim of wrongful use of

civil proceedings is not ripe.     This argument is misplaced and outside the

scope of this appeal.




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      In a preliminary objection in the form of a demurrer to Brown’s

complaint, Appellants asserted that Brown’s Dragonetti action was not

properly before the court because the prior action had not terminated in his

favor and, in fact, was still ongoing, with “the factual record as it applies to

the conduct of [Brown]” still actively in litigation. Preliminary Objections of

Lynne Boghossian, 8/30/13, at ¶ 52.        The trial court denied Appellants’

preliminary objections and, in doing so, concluded that Brown had set forth

a cognizable claim for wrongful use of civil proceedings.     Accordingly, any

claim regarding the appropriateness of the Dragonetti action is, for now,

the law of the case, to be subject to reversal only on appeal once the

litigation is concluded.   Thus, any claim based on the prematurity of the

Dragonetti action is not properly before this Court, as the order currently

on review solely pertains to discovery.

      We generally review the grant or denial of discovery requests for an

abuse of discretion. Commonwealth v. Fleming, 794 A.2d 385, 387 (Pa.

Super. 2002). An abuse of discretion is more than just an error in judgment

and, on appeal, the trial court will not be found to have abused its discretion

unless the record discloses that the judgment exercised was manifestly

unreasonable or the result of partiality, prejudice, bias, or ill-will.     Id.

Because challenges to discovery orders do not raise factual questions but,

rather, legal questions, our scope of review is plenary.         Merithew v.

Valentukonis, 869 A.2d 1040, 1043 (Pa. Super. 2005).




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      Pennsylvania Rule of Civil Procedure 4003.3 protects “disclosure of the

mental impressions of a party’s attorney or his or her conclusions, opinions,

memoranda, notes or summaries, legal research or legal theories,” from the

reach of normal discovery.          Pa.R.C.P. 4003.3.     However, there are

exceptions to that protection, namely, when the legal opinion of an attorney

becomes a relevant issue, such as in an action for malicious prosecution or

abuse of process, where a party’s defense is predicated on a claim of good

faith reliance on the opinion of counsel. Id., comment. Appellants do not

dispute the existence of such an exception.          Instead, they argue that,

although Brown was personally dismissed from the Prior Action, “the factual

record as it applies to the conduct of Brown is still active and probative in

that litigation.”   Brief of Appellant, at 22.   Accordingly, they contend that

they will be prejudiced in the ongoing Prior Action by the disclosure of

privileged information in the Dragonetti action. We are not persuaded.

      Here, Appellants themselves placed into issue their attorney-client

communications by asserting good faith reliance as a defense to Brown’s

Dragonetti action. Having done so, they cannot now deny their adversary

access to the information forming the basis of that defense. See Pa.R.C.P.

4003.3, comment (setting forth exception to discovery protection for

attorney-client privileged information where party’s defense is based on

claim of good faith reliance thereon).

      Moreover, it is not at all clear that the Appellants’ ability to prosecute

the Prior Action would be hampered by our ruling in this matter.         In the

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event that Appellants prevail on appeal and the Prior Action is remanded for

trial, Appellants may file for a protective order or request such other relief as

they may deem appropriate in order to prevent the admission of privileged

information obtained solely for purposes of the Dragonetti action.

      Order affirmed; motion to quash denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




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