Interlocutory Appeals – When is the Right Time?

The term itself sounds alien – “interlocutory.” It refers to interim court decisions that usually aren’t appealable. Yet, the Pennsylvania Appeals Court Rules permit parties to appeal from some interlocutory rulings. The rub is when and how, two considerations lawyers may not think about or understand. Today, we won a case in which the Superior Court concluded that it could decide an interlocutory appeal based on Pennsylvania Rule of Appellate Procedure 341(c). The decision in Sawyers v. Davis is interesting because, to convince the Court, we had to carefully nuance the arguments in our brief and particularly at oral argument. The result: the plaintiff whose case was tossed gets her day in court. Click here to read the Superior Court decision in Sawyers v. Davis.

So, when can you appeal an interlocutory order? Attorneys need to closely review Pennsylvania Rule of Appellate Procedure 311, which says an “appeal may be taken as of right” without a final order, namely: orders affecting judgments; orders involving attachments, change of criminal venue or venire, injunctions, peremptory judgment in mandamus, new trials, or partition; and orders relating to venue or personal or in rem jurisdiction, preliminary objections in eminent domain matters and certain Commonwealth criminal appeals. There is a catch-all for “other cases” in which an “order is made final or appealable by statute or general rule, even though the order does not dispose of all claims and all parties.” Rule 311(a)(8).

A real nuance is Rule 311(f), which specifically addresses appeals following an administrative remand. Parties may appeal as of right: “(1) an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer for execution of the adjudication of the reviewing tribunal in a manner that does not require the exercise of administrative discretion; or (2) an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer that decides an issue that would ultimately evade appellate review if an immediate appeal is not allowed.”

Recently, the Commonwealth Court threw out an appeal because the Environmental Hearing Board’s decision was not appealable as of right under Rule 311(f)(1). In the case, Sunoco appealed from an Environmental Hearing Board Order sending a dispute back to DEP for further consideration. The Court concluded that the appeal did not satisfy Rule 311(f)(1) or (2) because the DEP would have to exercise administrative discretion and the issue would not evade appellate review.

Additionally, Rules 312 and 1311 address interlocutory appeals by permission and require you to file a petition to permission from an interlocutory order with the statement contained in 42 Pa. C.S. § 702(b).

Determining whether you can file an interlocutory appeal can be complicated. Our office regularly assists attorneys deciding whether they can file an appeal, and can assist at any point in the litigation. Just give us a call at (610) 446-3457.

May I instruct the witness not to answer?

Even seasoned attorneys sometimes struggle with whether a communication is privileged or protected by the work product doctrine. Whatever the attorney decides can have significant implications in discovery and the trajectory of a case.

In Cohen v. Ellwood Crankshaft and Machine Co., No. 11212 C.A. 2016 (Pa. Ct. Comm. Pl. Lawrence Cnty. Aug. 29, 2019), the trial court denied a motion to compel a witness to answer questions that called for privileged information. Plaintiff had alleged a claim for premises liability against the property owner (Ellwood) because he was injured at work. Ellwood then filed a third-party complaint against Plaintiff’s employer (Mascaro) seeking indemnification based on their contract. During the deposition of Mascaro’s corporate designee, who was its corporate counsel, Ellwood’s attorney asked questions regarding the applicability and enforceability of the indemnification clause. The designee answered questions concerning the factual basis for the denial of indemnification, but Mascaro’s attorney instructed the witness not to answer questions concerning the legal basis for the denial, arguing the questions called for “mental impressions or opinions concerning the ultimate legal issues of this case.”

The trial court agreed with Mascaro that the questions sought “conclusions and opinions regarding an issue of law that will ultimately be decided by the Court,” and therefore are protected by Pa. R. Civ. P. 4003.3. Rather, such questions would only be proper in actions for malicious prosecution or abuse of process.

The applicability of the attorney-client privilege and work product doctrine is fraught with serious implications. Our office regularly assists attorneys encountering these and other difficult questions, and can assist at any point in the litigation. Just give us a call at (610) 446-3457.

Why Teamwork Matters

We practice law as a team, not as individuals who just “do their own thing” and reject the input of our colleagues. Doing so allows us to spot “holes” in arguments, improve the focus of whatever point we are trying to make, and – most importantly – win cases and get the best results for our clients. And many of our clients are other attorneys who seek our advice or hire us to handle their appeals.

But not all lawyers subscribe to this belief – to them, ego matters more – they need all the credit.

Consider this scenario. I agreed to collaborate on an amicus (friend of the court) brief for a lawyers group about a legal issue where I had previously drafted an amicus brief that contributed to what was called the most important Pennsylvania Supreme Court decision in over 30 years. But like any landmark case, the decision needed some fine interpretations and cases are pending in various appellate courts.

I agreed to collaborate on amicus briefs in both the Supreme Court and the Commonwealth Court, both coincidentally due last week. My collaborator was an attorney with whom I had not worked. He provided me with drafts of the briefs. The briefs contained some excellent arguments, but were turgid, one exceeded the word limit, and both were begging for improvement. So I decided to do so.

One brief was 3,000 words too long, and the lawyer framed the legal issue as:

Whether Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II) is to be applied retroactively to the date on which Claimant’s 500 weeks of partial disability benefits elapsed because the modification from total to partial was based on an Impairment Rating Evaluation (IRE) conducted under statutes since held unconstitutional. Failure to give Protz II full retroactivity violates the Remedies Clause of the Pennsylvania Constitution.

I revised the issue to read:

In Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II), the Pennsylvania Supreme Court invalidated the Impairment Rating Evaluation provisions of the Workers’ Compensation Act. Because all IREs were deemed void ab initio, does Protz II apply retroactively to the date on which a Claimant’s 500 weeks of partial disability benefits elapsed because any other modification would violate the Remedies Clause of the Pennsylvania Constitution.

I also added multiple introductory sections, and cut the brief down to the proper word limit.  My “collaborator’s” reply was: “Your rewriting of my brief is great. … How did you do that so quickly?” He still filed his draft as written.

The Court rejected the brief my “collaborator” filed as too long. He received permission to file a shorter brief. Did he file my “great” version? No. He cut his dense document by 3,000 words and ignored me.

As for the Pa. Supreme Court brief, I revised his draft to make it more persuasive and reader-friendly. His reply: He attacked me viciously in email. Other attorneys who read it said it was “great” or “perfect.”

My guess is that when the Pa. Supreme Court rules, it will cite our amicus brief, as it regularly does. In fact, one Supreme Court Justice has publicly commented about the quality of my briefs, using compliments that made me speechless.

My “collaborator” is an excellent lawyer by all accounts. He just does not like collaborating, and seems to fit into the subject of Robert Sutton’s great book. But for our office, and our clients, and all the other injured persons we help by writing amicus briefs, we will continue to collaborate. After all, our goal is results!


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Batting 1000 – Attorney Dan Siegel is 6 for 6 in the Pennsylvania Supreme Court

On Tuesday, the Pennsylvania Supreme Court accepted our arguments completely and issued a landmark decision in Feliccia v. Lackawanna Universityholding that (1) a university “had a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events,” and (2) a Waiver of Liability is unenforceable as to claims of gross negligence and recklessness. The Majority Opinion agreed with plaintiffs’ claim that the university assumed a duty toward the football players, noting that “the present factual scenario supports a determination that ‘affirmative conduct’ by appellants created a ‘special relationship’ with and increased risk of harm to its student athletes such that appellants had a duty to ‘exercise reasonable care to protect them against an unreasonable risk of harm arising’ from that affirmative conduct. … the record supports a finding appellants undertook a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events, including the football practice.” Click here to read the Opinion.

Attorney Dan Siegel Has Never Lost a Case He Has Litigated in the Pennsylvania Supreme Court

A few people have asked me this week what my track record is in the Pennsylvania Supreme Court. It turns I am 6 for 6, winning four cases as counsel, and winning two as appellate counsel. To say I am proud of this accomplishment is an understatement.

What’s more important, however, is that we live in a world in which every lawyer seems to have “participation trophies,” which are often nothing more than “pay to play.” Everyone is a Super Lawyer, or is ranked as a Best Lawyer, or has a 10/10 rating on some other site. While many of these attorneys are excellent, how many can say they have never lost a case in the Pennsylvania Supreme Court, or that insurance really are more likely to settle cases with Attorney Dan Siegel because they know that, if needed, we will take cases on appeal, and we win? Not every appeal, but a large majority.

So, when you search for Dan Siegel on those “rating” sites, you may not find me because I don’t pay to have a high ranking, or to have my name displayed.

I prefer to let the “reporters” – the books that contain Supreme Court, Commonwealth Court and Superior Court opinions – display my name. They don’t charge, your name is published on merit.

Commonwealth Court Enhances Medical Providers’ Rights Against Workers Compensation Carriers

Attorney Dan Siegel Was Lead Counsel in Decision Affirming That Medical Providers Have a Right to Payment Under the Pennsylvania Workers’ Compensation Act

The Commonwealth Court today affirmed that insurance companies and their attorneys may not take actions that prevent medical providers from being paid for care for injured workers. The decision, in Workers First Pharmacy Services, LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Cincinnati Insurance Co.), disallowed a procedure used by an insurer and its counsel intended to prevent a pharmacy not only from being paid, but also from having a hearing about its right to payment.

Havertown workers’ compensation and appellate Attorney Daniel J. Siegel, whose cases have dramatically expanded the protections available to medical providers caring for Pennsylvania’s injured workers, was counsel and argued the case before the Court.  Before this and other decisions in which Siegel was counsel, Pennsylvania courts had never ruled that doctors, physical therapists, orthopedic surgeons and other medical caregivers cannot be cutout from payment without a hearing.

“I am proud that this case, and others my office has handled, have expanded the rights of every medical professional in Pennsylvania. My firm’s recent cases have extended the rights of more injured persons and their medical providers than any other firm’s,” said Siegel, founder of the Law Offices of Daniel J. Siegel, LLC. He also credited attorneys Christa Frank High and Nicole A. Kratzer, who also handled the case.

In this case, a workers’ comp claim settled, and the insurance company’s lawyer included a provision in the settlement saying that (1) the injured worker was not obligated to pay for medicine he received, and (2) the insurer agreed to be bound by the separate fee review process used by medical providers to assert and protect their right to payment.  As soon as the settlement was approved, the carrier’s lawyer argued in the fee review that the pharmacy was not entitled to any payment because the insurer had never “admitted” that the worker was injured. The Fee Review Officer agreed and dismissed the matter, barring the pharmacy from any compensation. The Commonwealth appeals Court disagreed, stating: “Employer accepted full liability for the debt to Pharmacy. Employer’s counsel told Claimant that even if Employer was found not liable, Pharmacy could not hold Claimant responsible for the debt. Stated otherwise, Employer accepted “responsibility” for the debt to Pharmacy when it released Claimant from any obligation to pay Pharmacy in the C&R Agreement. Accordingly, the Hearing Office has jurisdiction to decide the three fee review contests.”

Click here to read the decision authored by President Judge Leavitt.


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