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Home My WebLink About2013-716 CAPOZZI ADLER, P.C., : IN THE COURT OF COMMON PLEAS f/k/a CAPOZZI & ASSOCIATES,: CUMBERLAND COUNTY, PENNSYLVANIA P.C., A Pennsylvania : Corporation, : Plaintiff : : v. : CIVIL ACTION – LAW : CRAIG FLASHNER, GS : OPERATOR, LP d/b/a : GLENDALE UPTOWN HOME, : MADISON HEALTHCARE : MANGAEMENT, LLC, : PENNWOOD OPERATOR, : LP., PRESTIGE PA MANAGER,: LLC, : Defendants : NO. 13-0716 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Peck, J., March 16, 2015. On November 6, 2014, Defendants filed a Motion for Protective Order and for 1 Payment of Defendant’s Attorney’s Fees. In their motion, Defendants sought an order of this Court directing Plaintiff’s deposition of Craig Flashner to occur via telephone or video conference, or, in the alternative, “directing Plaintiff to travel to Craig Flashner’s office in California for the deposition or for Plaintiff to pay Craig Flashner’s travel expenses, food and lodging expenses and lost wages incurred in connection with Craig Flashner’s in-person attendance of a deposition at Plaintiff’s office in Camp Hill, 2 Pennsylvania.” On November 13, 2014, we entered a Rule to Show Cause upon 34 Plaintiff. Plaintiff filed a response on November 25, 2014. Argument was held on 1 Motion for Protective Order and for Payment of Defendants’ Attorney’s Fees, filed November 6, 2014. 2 Id. 3 Order of Court, In Re: Defendants’ Motion for Protective Order and for Payment of Defendants’ Attorneys’ Fees (November 13, 2014). 4 Plaintiff’s Response to Defendants’ Motion for Protective Order and for Payment of Defendants’ Attorneys’ Fees, filed November 25, 2014. 5 Defendants’ motion on December 16, 2014, after which we denied the motion. Defendant Flashner did not appear at argument. Defendant Flashner is a named 6 Defendant in this action with business in Pennsylvania. On January 15, 2014, Defendants filed a Notice of Appeal. On January 22, 2015, Defendants filed a Statement of Matters Complained of and Intended to be Argued on Appeal. We note, however, that Defendants’ Statement of Matters Complained of and Intended to be Argued on Appeal solely addresses the appealablility, pursuant to the collateral order doctrine, of our order of December 16, 2104. It does not “identify each ruling or error that the appellant intends 7 to challenge with sufficient detail to identify all pertinent issues for the judge.” Thus while we can surmise that Defendants disagree with our disposition of their Motion for Protective Order and for Payment of Defendant’s Attorney’s Fees, hence the appeal, Defendants have provided little else. We will thus assume that Defendants’ claim that “Plaintiff is using its resources as a law firm to force an inequitable settlement by removing resolution of the issue from under the framework of justice into the realm of a 8 business decision” serves both to address the second prong of the collateral order doctrine and as the pertinent issue regarding our denial of their request for a protective order. This opinion in support of our order of December 16, 2014, is written pursuant to Pa. R.A.P. 1925(a). DISCUSSION “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). However, “it is not sufficient that the issue be important to the particular parties. Rather, it must involve rights deeply rooted in public 5 Order of Court, In Re: Defendant’s Motion for Protective Order and for Payment of Defendants’ Attorney’s Fees (December 16, 2014). 6 Notes of Transcript from Oral Argument, December 16, 2014, p. 4, 8-9. 7 Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). 8 Defendants’ Statement of Matters Complained of and Intended to be Argued on Appeal, ¶ 4. 2 policy going beyond the particular litigation at hand.” Commonwealth v. Dennis, 859 A.2d 1270, 1278 (Pa. 2004). The first prong of the collateral order doctrine is certainly met. The manner and place of a deposition is separable from the main cause of action. Thus we turn our attention to the second prong and whether the manner and place of a deposition involves a right too important to be denied review. We find that it does not. Defendant Flashner having to travel from California to Pennsylvania to be deposed does not involve a right “deeply rooted in public policy going beyond \[this\] particular litigation.” See Rapoport v. Sirott, 209 A.2d 421 (Pa. 1965) (noting that the Court had previously quashed an appeal by the appellant challenging an order of a court of common pleas directing the appellant to travel from Nevada to Pennsylvania to be deposed as interlocutory) and Stanford v. Moore, 2012 Phila. Ct. Com. Pl. LEXIS 135 (Pa. C.P. 2012) (finding that an order compelling a deposition is not collateral as it does not involve a right deeply rooted in public policy); cf. Commonwealth v. Dennis, 859 A.2d 1270 (Pa. 2004) (finding that the exercise or non-exercise of a legal privilege is an important right deeply rooted in public policy). Having failed to meet the second prong of the collateral order doctrine, Defendants’ appeal should be quashed as interlocutory. Regarding any alleged error in our denying Defendants’ Motion for Protective Order, Rapoport, supra, is instructive. In Rapoport, Sirott, the defendant, appealed the entry of a default judgment against him as a sanction for his failure to appear for a deposition. Rapoport, 209 A.2d at 424. Sirott was a resident of Nevada and had sought a protective order requesting that his deposition be taken through written interrogatories or in person in Nevada. Id. at 423. Sirott argued that Rapoport’s efforts to compel him to appear in Pennsylvania for a deposition was in bad faith as Sirott was potentially subject to arrest in Pennsylvania. Id. The trial court denied his motion and ordered him to appear in Pennsylvania within twenty days for the taking of his deposition. Id. Sirott did not appear and the trial court entered a default judgment against him. Id. On appeal, our Supreme Court vacated the default judgment and directed Sirott’s deposition to be taken in Nevada. Id. at 424. However, the Court also directed Sirott to pay all reasonable 3 expenses incurred by Rapoport’s counsel in taking his deposition in Nevada. Id. Thus while the Court found Sirott’s request to be deposed in Nevada to avoid possible arrest in Pennsylvania compelling, and therefore directed his deposition to take place in Nevada, it nonetheless refused to shift the costs of the deposition to Rapoport. In the present matter, as Defendant Flashner simply seeks to shift the costs of his deposition to Plaintiff, and as Defendant Flashner failed to provide a compelling reason why his deposition should be conducted in California rather than Pennsylvania, we 9 denied his request for a protective order. Our Order granted Defendant Flashner the flexibility of 60 days to travel to Pennsylvania at a mutually convenient date to both parties for his deposition. We thus find no error in our order of December 16, 2014. CONCLUSION This Court concludes that Defendants’ appeal is interlocutory. Accordingly, Defendants’ appeal should be quashed. Alternatively, Defendants’ appeal is without merit and should be denied. BY THE COURT, __________________________ Christylee L. Peck, J. Glen A. Parno, Esq. P.O. Box 5866 Harrisburg, PA 17110 Attorney for Plaintiff 9 We should note that we found Defendants’ claim that Plaintiff was acting in bad faith by insisting upon deposing Defendant Flashner in Pennsylvania, among other claims, to be unconvincing. Rather than acting in bad faith, Plaintiff is simply seeking compensation for an alleged unpaid debt. Neither rejecting a settlement offer or refusing to submit this dispute for ADR constitute acting in bad faith. See Defendants’ Motion for Protective Order and for Payment of Defendants’ Attorneys’ Fees, filed November 6, 2014, ¶ 28. We did encourage the Plaintiff and Defendants to negotiate towards a settlement, as we would in any case where a settlement is possible. 4 Benjamin J. Glatfelter, Esq. John N. Kennedy, Esq. P.O. box 5100 Harrisburg, PA 17110-0100 Attorneys for Defendants 5