J-A08020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CORINE LAPINSKAS                                IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

THE TRAVELERS HOME AND MARINE
INSURANCE CO. AND BILLIG-HELMES
INSURANCE ASSOCIATES, INC.

                            Appellees                No. 1018 MDA 2014


              Appeal from the Order Entered on February 11, 2014
                In the Court of Common Pleas of Luzerne County
                       Civil Division at No.: 10700 of 2012


BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                              FILED JUNE 18, 2015

       Corine Lapinskas appeals the trial court’s February 11, 2014 order.

That order denied her petition for allowance of appeal nunc pro tunc of the

trial court’s earlier discovery sanction order. Lapinskas argues that opposing

counsel’s and the court’s persistent failure to note her counsel’s change of

address resulted in her being deprived of notice of the proceedings and

orders associated with the trial court’s imposition of sanctions, such that the

equities warranted allowance of appeal of those orders nunc pro tunc. The

trial court did not address the merits of this claim, ruling simply that the

request for nunc pro tunc relief was in the nature of an untimely motion for

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-A08020-15



reconsideration, and that this Court lacks jurisdiction over this appeal

because it is untimely relative to the underlying sanction order. After careful

review, we find that the sanction order at issue was not properly transmitted

to Lapinskas. Consequently, Lapinskas’ motion for nunc pro tunc relief was

moot in the first instance. Accordingly, we vacate the trial court’s order, and

we remand for further proceedings.

        The substance of the underlying action is immaterial to the issue at

hand.    However, we must relate at length the procedural events that are

relevant to the issue presented.

        On August 7, 2012, Lapinskas filed a complaint against the above-

captioned Appellees, Travelers Home and Marine Insurance Co. and Billig-

Helmes Insurance Associates (respectively “Travelers” and “BHI”).           On

August 22, 2012, BHI filed preliminary objections. On September 6, 2012,

Travelers filed an answer, new matter, and cross-claim. On September 14,

2012, BHI filed its response to Travelers’ new matter and cross-claim. On

October 24, 2012, the trial court entered an order sustaining BHI’s

preliminary objections. The court afforded Lapinskas the opportunity to file

an amended complaint.1




____________________________________________


1
      Because BHI is not a party to this appeal, we hereinafter exclude
procedural events involving only Lapinskas and BHI to simplify our account
of the relevant proceedings.



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       Meanwhile, on or about September 1, 2012, counsel for Lapinskas,

James R. Scallion, Esq., relocated his office. He avers that he transmitted a

form letter noting the change to the Luzerne County Court of Common Pleas

and to “clients and counsel of record in open cases.” Brief for Lapinskas at

5. Scallion also notes that he set up United States Postal Service (“USPS”)

mail forwarding, which was guaranteed to run for approximately six months

after his change of address. Scallion further specifically avers that notice of

the change was provided to counsel of record for Appellees.       On or about

December 13, 2012, when Appellees had continued to send materials to

Scallion’s former address, Scallion sent another letter informing Appellees of

his changed address.

       On November 19, 2012, Lapinskas filed her amended complaint. On

or about December 27, 2012, during proceedings on Lapinskas’ amended

complaint, Travelers served interrogatories and requests for production of

documents upon Lapinskas. Lapinskas undisputedly did not timely respond

to these requests.

       In or around March of 2013, Travelers moved the trial court to enter

an order compelling Lapinskas to respond to Travelers’ December 27, 2012

discovery requests. Although the docket contains no notation regarding, and

the certified record does not contain, such a motion,2 we infer this event

____________________________________________


2
     For this reason, we have no basis to conclude that Travelers duly
served or otherwise apprised Lapinskas of this motion.



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because, on April 3, 2013, the trial court entered an order granting this

alleged motion and directing Lapinskas “fully and completely” to respond to

all interrogatories and produce all requested documents “without objection.”

Order, 4/3/2013, at 1.

      We pause, now, to note that neither the docket nor the record disclose

that the trial court complied with Pa.R.C.P. 236 in connection with this order.

Rule 236 provides that “[t]he prothonotary shall immediate give written

notice [to the parties] of the entry of . . . any . . . order . . . to each party’s

attorney of record. . . .   The notice shall include a copy of the order or

judgment.”    Pa.R.C.P. 236(a)-(b).    In what amounts to foreshadowing, we

note that an appeal period applicable to a given order does not begin to run

until the date that the docket indicates that Rule 236 notice of that order

was provided to a party seeking to appeal. See In re L.M., 923 A.2d 505,

509 (Pa. Super. 2007).      Our Supreme Court has characterized this as “a

bright-line rule, to be interpreted strictly.”   Id. (citing Frazier v. City of

Philadelphia, 735 A.2d 113, 115 (Pa. 1999)).               Notably, the docket

specifically reflects that Rule 236 notice was provided in connection with the

one prior and several, but not all, subsequent orders issued in this matter.

      On May 9, 2013, Travelers filed a motion for sanctions against

Lapinskas alleging that Lapinskas still had not provided the discovery that

Travelers requested and that the trial court directed her to provide.          The

certificate of service attached to Travelers’ motion indicated that service had

been provided to Scallion at his former address. By this time, the six-month

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USPS mail-forwarding period presumably had expired.         On the same day,

the trial court issued a rule to show cause why Travelers should not be

granted the relief it requested, which noted that argument on the motion

would be held on June 17, 2013. The docket contains no entry indicating

that Rule 236 notice of the rule to show cause was transmitted to Lapinskas.

On June 17, 2013, when no one appeared for Lapinskas at the hearing, the

trial court entered an order granting Travelers’ motion. Specifically, the trial

court order provided that Lapinskas would be precluded from introducing at

trial any documents requested by, but not furnished to, Travelers, and

awarding reasonable attorneys’ fees to Travelers. Once again, the trial court

docket and the certified record are devoid of any indication that Rule 236

notice of the sanction order was sent to Lapinskas.

      On June 27, 2013, Travelers filed a sworn statement of costs and fees,

seeking an order following through on the trial court’s award of same in its

June 17, 2013 order. Attached to this filing, Travelers’ certificate of service

for the first time indicated that it had served its statement on Scallion at his

new address. On July 8, 2013, the trial court entered an order scheduling a

hearing for August 5, 2013, ostensibly to address Travelers’ submitted costs

and fees.   Again, the docket does not indicate that the requisite Rule 236

notice was provided.

      On August 5, 2013, with Lapinskas again in absentia, the trial court

entered an order granting Travelers over $5,000 in sanctions. The docket




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provides no indication that Rule 236 notice of this order was provided to

Scallion.

      On November 27, 2013, Travelers filed a new motion for sanctions

based upon Lapinskas’ failure to comply with the trial court’s orders granting

Travelers’ motions to compel and for sanctions, respectively dated April 3

and August 5, 2013. Travelers appended as exhibits to its motion all filings

and orders relevant to the trial court’s earlier orders respectively compelling

Lapinskas to comply with Travelers’ discovery requests and, later, entering

sanctions for Lapinskas’ failure to do so.     No certificate of service was

attached to the docketed copy of Travelers’ second motion for sanctions.

      Travelers appended to this motion what appear to be print-outs of an

email exchange between counsel for Travelers and Scallion. The exchange

in question begins with a message from Scallion to Travelers’ attorney,

dated Tuesday, April 30, 2013, in which Scallion wrote as follows:

      It has come to my attention that you called last week to follow-
      up [sic] regarding your Motion to Compel discovery responses. I
      sincerely apologize that you have had difficulty reaching me, and
      that my office has failed to respond to your request. You have
      my assurance that the discovery responses are forthcoming, and
      I have made it clear to my client that they must be returned
      immediately.

      I do hope that this correspondence reaches you in time to
      prevent the filing of a Motion for Sanctions. Again, please
      accept my apologies. I expect that you will have the responses
      by Monday at the latest.




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Electronic mail, Scallion to Leslie Greenspan, 4/30/2013 (emphasis added).

Thereafter, on May 7, 2013, Travelers’ counsel, Leslie Greenspan, Esq.,

responded as follows:

     I have been trying to reach you for months, but you have not
     responded to mail, telephone calls, or faxes. I would much
     prefer to have your discovery responses than to trek up to
     Luzerne County on Thursday, but if I do not have your discovery
     responses, I will have no choice but to move forward with my
     motion for sanctions. The choice is yours.

Electronic mail, Greenspan to Scallion, 5/7/2013. The next message on the

same thread, dated June 13, 2013, was from Greenspan to Scallion:

     I have not heard from you, received discovery responses, or
     received a response to the Rule to Show Cause that we served
     on you on May 9, 2013. The hearing on the Rule to Show Cause
     and Motion for Sanctions is Monday June 17 at 9:30 am in the
     main courthouse on the 3rd floor. If you are planning to attend, I
     will see you there.

Electronic mail, Greenspan to Scallion, 6/13/2013.      Neither Scallion nor

anyone else representing Lapinskas appeared at the June 17, 2013 hearing,

and sanctions were ordered, as detailed supra.

     Scallion finally made his presence known on December 2, 2013, when

he filed on Lapinskas’ behalf a Petition for Allowance of Appeal Nunc Pro

Tunc of the trial court’s August 5, 2013 order granting Travelers’ motion for

sanctions, the denial of which furnishes the basis of this appeal.   Therein,

Scallion provided the aforementioned account of his address change and the

notices he purportedly provided to opposing counsel.    With respect to the

motions to compel and for sanctions proceedings that occupied the summer


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J-A08020-15



and fall of 2013, Scallion averred somewhat vaguely as follows:       “It has

come to the attention of undersigned counsel that [Travelers] has obtained

an order granting sanctions against [Lapinskas] for failure to respond to

discovery requests.”    Petition for Allowance of Appeal Nunc Pro Tunc,

12/2/2013, at 2 ¶ 7. He further averred that “he was not properly served

with any of the filings [that] ultimately resulted in an Order granting

Sanction [sic],” and that he had obtained the various documents only from

the electronic docket provided by the court of common pleas. Id. at 2 ¶¶ 8-

9. He underscored his belief that none of those filings had been served on

his correct address, and that Travelers’ certificates of service indicated

transmission to an incorrect address. Id. at 3 ¶ 10-11. He submitted that

these circumstances “resulted in an injustice [that could] only be cured by

allowing an appeal of the above-noted Order for Sanctions nunc pro tunc.”

Id. at 3 ¶ 14.

      The trial court disagreed, at least in part. On February 11, 2014, it

entered an order granting Lapinskas’ motion with regard to the June 17,

2013 order granting Travelers’ second motion to compel but denying that

motion as to the April 3, 2013 and August 5, 2013 orders—respectively,

granting Travelers’ first motion to compel and granting Travelers’ request for

sanctions.




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       This appeal followed.3        The trial court directed Lapinskas to file a

concise statement of the errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and Lapinskas timely complied.          The trial court issued

what it captioned on “order” on May 5, 2014, ostensibly in lieu of a Rule

1925(a) opinion. Therein, it opined that this Court lacked jurisdiction over

Lapinskas’ appeal.       Specifically, the trial court noted that Lapinskas had

failed to comply with Pa.R.A.P. 903(a), which requires that all authorized

appeals be filed with the Superior Court within thirty days of the challenged

order. The trial court rejected Lapinskas’ argument that her appeal derived

from the trial court’s February 11, 2014 order denying nunc pro tunc relief

(in part), and instead construed it as a de facto motion for reconsideration of

the August 5, 2013 order. The trial court correctly observed that a motion

for reconsideration does not toll the thirty-day time within which an appeal
____________________________________________


3
      As noted, the trial court purported to grant nunc pro tunc review of its
June 17, 2013 order and to deny such review of both its April 3, 2013 order
and its August 5, 2013 order. However, as far as we can discern, Lapinskas
has taken no action on the June 17, 2013 order, and she and the trial court
both ultimately focus their discussions upon the August 5, 2013 order
imposing sanctions upon Lapinskas. Nonetheless, it is Lapinskas’ failure to
comply with the April 3, 2012 order that served as the principal or exclusive
basis upon which Travelers’ motion for sanctions was granted. Given the
nature of our ruling, these details are irrelevant, as such. Thus, although
our discussion focuses upon the August 5, 2013 order, our disposition
necessarily implicates the April 3, 2012 order granting Travelers’ motion to
compel. Notably, the dissent addresses only the sanction order. While it is
true that orders imposing discovery sanctions are not immediately
appealable, there are circumstances under which an order compelling
discovery is immediately appealable; this distinction is critical to the
discussion that follows.



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must be filed, see Trial Court Opinion, 5/5/2014 at 2 (citing Cheathem v.

Temple Univ. Hosp., 743 A.2d 518, 520 (Pa. Super. 1999)), and concluded

as follows:

      Although [Lapinskas] captioned her December 2, 2013 filing as a
      Motion to Set Aside Orders, she was clearly asking for a
      reconsideration of the Order of this Court dated August 5, 2013.
      Reconsideration was not granted[,] so the August 5, 2013 Order
      remained in effect. [Lapinskas’] appeal filed seven months later
      is untimely and should be dismissed.

Id.

      This Court has outlined the limited circumstances under which nunc

pro tunc relief may be granted:

      In civil cases, a trial court may grant an appeal nunc pro tunc
      only under two circumstances. First, a trial court may grant an
      appeal nunc pro tunc where there was fraud or a breakdown in
      the court’s operations. Second, a trial court may grant an
      appeal nunc pro tunc on the grounds of non-negligent
      happenstance.

Raheem v. Univ. of the Arts, 872 A.2d 1232, 1234 (Pa. Super. 2005)

(citations omitted).   We have held that an appeal from an order denying

nunc pro tunc relief presents a question of law:

      “Our standard of review over questions of law is de novo and[,]
      to the extent necessary, the scope of our review is plenary as
      [the appellate] court may review the entire record in making its
      decision.” Mostroni-Mucker v. Allstate Ins. Co., 976 A,2d
      510, 518 (Pa. Super. 2009) (citation omitted).

      In Pennsylvania, both trial and appellate courts have jurisdiction
      to determine whether an appeal nunc pro tunc should be
      granted. See Weiman by Trahey v. City of Phila., 564 A.2d
      557, 559 (Pa. Cmwlth. 1989) (“Both the trial court and our Court
      have jurisdiction to decide this question, and a petition to appeal

                                    - 10 -
J-A08020-15


      nunc pro tunc may be directed to either the lower court or the
      appellate court.”); Nagy v. Best Home Servs., Inc., 829 A.2d
      1166, 1167 (Pa. Super. 2003) (“[The t]rial court may grant [] an
      appeal [nunc pro tunc] only if the delay in filing is caused by
      extraordinary circumstances.”); Raheem, 872 A.2d 1232
      (finding that [the] trial court did not abuse its discretion by
      refusing to grant appeal nunc pro tunc). . . .

                                   ****

      With regard to the determination of whether an appeal nunc pro
      tunc should be granted:

         In Bass v. Commonwealth Bureau of Corrections, 401
         A.2d 1133 (Pa. 1979), [our Supreme] Court found that
         where an appellant, an appellant’s counsel, or an agent of
         appellant’s counsel has failed to file a notice of appeal on
         time due to non-negligent circumstances, the appellant
         should not lose his day in court. Therefore, the Bass
         Court expanded the limited exceptions for allowing an
         appeal nunc pro tunc to permit such an appeal where the
         appellant provides that: (1) the appellant’s notice of
         appeal was filed late as a result of non-negligent
         circumstances, either as they relate to the appellant or the
         appellant’s counsel; (2) the appellant filed the notice of
         appeal shortly after the expiration date; and (3) the
         appellee was not prejudiced by the delay.

      Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001) (citations
      omitted).

Towey v. Lebow, 980 A.2d 142, 144 (Pa. Super. 2009) (citations modified;

footnote omitted).

      We are constrained to disagree with the trial court’s interpretation of

the substance of Lapinskas’ motion. Not only was that motion styled as a

motion for appeal nunc pro tunc; its material averments plainly were

directed at securing such relief, not belatedly seeking reconsideration of the




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order(s) in question. Specifically, in Lapinskas motion, Scallion averred as

follows:

      8.    Undersigned counsel respectfully avers that he was not
      properly served with any of the filings [that] ultimately resulted
      in an Order granting Sanctions, including the Motion to Compel
      and Rule to Show Cause, Memorandum of Law, Order compelling
      response, Motion for Sanctions and Rule to Show Cause, Order
      granting Sanctions, or statement of attorney’s fees.

      9.    Undersigned counsel has obtained copies of the documents
      referenced in Paragraph 8 above from the electronic docket of
      the Luzerne County Prothonotary.

      10. It is believed and therefore averred that [] none of the
      above-noted documents were properly served upon undersigned
      counsel for [Lapinskas].

      11. Certificates of Service filed by counsel for Travelers aver
      that service was made to undersigned counsel’s prior address,
      despite repeated notice to counsel for Travelers of the change of
      address.

      12. Moreover, the mail[-]forwarding provided by the United
      States Postal Service is only guaranteed for a period of six
      months. The Motion to Compel was filed on or about July 30,
      2013, approximately four months after the termination of mail
      forwarding services.

      13. It is further averred that, as counsel provided an address
      update to the Luzerne County Court of Common Pleas, the Court
      erred by accepting defense counsel’s certificates averring service
      to an old address.

      14. [Lapinskas] respectfully avers that the failures of counsel
      for Travelers and the Court have resulted in an injustice [that]
      can only be cured by allowing an appeal of the above-noted
      Order for Sanctions nunc pro tunc.

Petition for Allowance of Appeal Nunc Pro Tunc, 12/2/2013, at 2-3.            By

virtue of the trial court’s focus upon this Court’s putative lack of jurisdiction



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over this appeal, we lack any insight into the trial court’s fact-finding with

regard to the factors governing nunc pro tunc relief.

      We must emphasize that we have ample reason to doubt at least one

of Scallion’s averments. Specifically, as noted, supra, the record indicates

that Travelers’ June 27, 2013 statement of legal fees was served upon

Scallion at his new address. From this, we are inclined to infer that, as of

that date, if not sooner, Scallion had knowledge of the trial court’s previously

entered sanction order.    This is problematic with respect to the first and

second elements of the test set forth in Towey, supra. Even if we accept

that Scallion was non-negligent before that date, for example due to

defective service of Travelers’ prior discovery-related filings, it becomes

difficult to draw that conclusion after Scallion’s presumed receipt of that

properly served statement of fees. As well, we have Scallion’s own April 30,

2013 electronic missive to Greenspan acknowledging his outstanding

discovery obligations and expressing his desire to avoid a motion for

sanctions. We then have Greenspan’s May 7 and June 13, 2013 responsive

emails specifically alluding to sanction proceedings, including specific

reference to the June 17, 2013 hearing regarding same. We have no reason

to believe that Scallion’s access to his electronic mail account somehow was

compromised in the interim between Scallion’s April 30 message and

Greenspan’s May 7 message, and he does not argue otherwise. Thus, it is

difficult not to conclude that Scallion’s delay was, at least to some extent,

the product of ordinary negligence. Similarly, given this correspondence, at

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a minimum Scallion was on notice to tend to the case, specifically his

discovery obligations.   Even if circumstances beyond his control interfered

with his ability to do so, it is difficult to imagine, given Greenspan’s clear

threat to seek sanctions, that Scallion would then wait approximately five

months to review the docket.       At the very least, he was all too aware

throughout that period that he had not met his discovery obligations.

Consequently, it is questionable whether Lapinskas is entitled to relief on

these grounds; at best, the events described above suggest that what

started as happenstance, as to which Scallion was blameless, evolved into

negligence    when   the   above-mentioned      correspondence     more    than

adequately informed Scallion that Travelers intended to seek sanctions.

      Nonetheless, as noted in Raheem, supra, nunc pro tunc relief also

may be called for when a breakdown in the court’s operations is to blame for

the failure timely to file an appeal. This brings us back to the serial absence

of docket notations indicating that Rule 236 notice had been provided of the

various proceedings and orders that culminated in the imposition of

sanctions upon Scallion, including the sanction order underlying Lapinskas’

request for nunc pro tunc relief.     From the record, we have no way to

confirm that such notices were transmitted.      Furthermore, the docket we

received from the trial court with the certified record, which was filed with us

on June 24, 2014, and presumably is current through that date, continues to

list Scallion’s old address, not his updated address. Thus, even if Rule 236

notice was, in fact, transmitted to Scallion, we must assume that it was

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transmitted to his old address well after the expiration of his mail-forwarding

arrangement with the United States Postal Service.

      In L.M., supra, this Court held that, until Rule 236(b) notice is

provided, the appeal period for the order as to which notice is required does

not commence to run.      923 A.2d at 509; see Pa.R.A.P. 108(a)(1) (“[I]n

computing any period of time under these rules involving the date of entry

of an order by a court . . ., the day of entry shall be the day the clerk of the

court . . . mails or delivers copies of the order to the parties . . . .”).

Moreover, our Supreme Court has held in clear terms that “an order is not

appealable until it is entered on the docket with the required notation that

appropriate notice has been given.” Frazier, 735 A.2d at 115 (emphasis in

original).   In equally clear terms, we have held that, even when the

appealing party has received actual notice, the thirty-day period does not

begin to run unless and until the proper notation appears in the docket.

L.M., 923 A.2d at 509 (citing Frazier, 735 A.2d at 115).

      For the foregoing reasons, we are constrained to find that the trial

court’s order denying nunc pro tunc relief, like the motion seeking that relief,

is moot.     We need not remand for fact-finding, because no authority of

which we are aware would permit the trial court to overlook its violations of

Rule 236 even if, for example, counsel for Travelers could demonstrate that

Scallion had actual and timely notice of all relevant orders. Thus, unlike in

Towey, justice would not be served by requiring the trial court to make any

further fact-finding, as no facts could emerge to relieve the trial court of its

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duty under Rule 236.         The failure to furnish Rule 236 notice renders the

orders in question ineffective unless and until such notice is provided,

whereupon the thirty-day time period for review of the sanction order will

begin to run. Because this will give Lapinskas ample time to file a motion for

reconsideration and/or a timely appeal, nunc pro tunc relief is not presently

necessary.4

       On remand, the court, in its discretion, may provide and docket Rule

236 notice of the sanction order, withdraw the order entirely, or convene

new proceedings to address the discovery violations at issue.

       Order vacated. Case remanded. Jurisdiction relinquished.
____________________________________________


4
       The learned dissent would affirm the trial court’s denial on the basis
that the sanction order was interlocutory, and not subject to any exception
to the rule that such orders are not appealable until the entry of judgment.
While this solution is not without its appeal, it implicitly excludes the
possibility that Lapinskas, given due notice and the opportunity to oppose
Travelers’ motion to compel that preceded its motion for sanctions, might
therein assert one of the narrow grounds that permits immediate appeal.
See, e.g., Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117,
1123-24 (Pa. Super. 2007) (holding that an order denying requests for
protective orders was immediately appealable under the collateral order
doctrine set forth in Pa.R.A.P. 313). Indeed, as noted supra n.3, the dissent
is silent as to the potential appealability of the April 2, 2013 order.
Lapinskas’ lack of response to Travelers’ motion to compel may have been a
direct result of a breakdown in the trial court. Consequently, the record
before us offers no guidance regarding whether she would have raised an
immediately appealable claim of privilege in response to Travelers’ discovery
requests. Thus, the dissent puts the cart before the horse in denying the
trial court the opportunity to determine in the first instance whether
Lapinskas, properly notified of the motion to compel, would have raised such
an argument, and, if so, whether it is meritorious. However slim that
possibility, it is not this Court’s province to make that determination,
explicitly or implicitly, given the present state of the record.



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     Judge Shogan joins the memorandum.

     Judge Strassburger files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2015




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